/raid1/www/Hosts/bankrupt/CAR_Public/240227.mbx
C L A S S A C T I O N R E P O R T E R
Tuesday, February 27, 2024, Vol. 26, No. 42
Headlines
ACCELLION INC: Court Narrows Claims in Data Breach Litigation
ACTIV ENTERPRISES: Hagler Suit Removed to C.D. California
AKIMA GLOBAL: Parties Seek More Time for Class Cert. Bid Filing
ALBERT EINSTEIN: Fails to Pay Proper Wages, Castillo Alleges
APPLE INC: Bid to Divide Economic Expert Conclave Discussions
ATLASSIAN CORP: Firemen's Fund Securities Suit Dismissed
AUSTRALIA: Suit on Illegal Ban of Live Cattle Trade Back to Courts
AVIANNES INC: Erkan Files ADA Suit in E.D. New York
BAKED BY MELISSA: Villaverde Sues Over Unlawful Telephonic Calls
BATHS OF DISTINCTION: Karim Files ADA Suit in S.D. New York
BEYOND HEALTH: Suarez Files ADA Suit in S.D. New York
BLENKO GLASS COMPANY: Liz Files ADA Suit in S.D. New York
BLOOMBERG LP: Ndugga Action Referred to Magistrate Judge
BOEING COMPANY: Berry Suit Removed to W.D. Washington
BRIDGES COMMUNITY: Duenas Files Suit in Cal. Super. Ct.
BRIDGESTONE CORP: Faces Alford Suit Over Tire Market Monopoly
BYWOOPS LLC: Durantas Files ADA Suit in E.D. New York
CALIFORNIA PHYSICIANS': Bosley Suit Removed to S.D. California
CHIPOTLE SERVICES: Fails to Pay Proper Wages, Cross Alleges
CLEAN RITE: E.D. New York Narrows Claims in Greene Consumer Suit
COFFEE DELUXE: Fails to Pay Proper Wages, Nivelo Alleges
COLTER ENERGY: Joyce's Bid to Compel Discovery Responses Granted
COMMUNITY HEALTH: Wells Sues to Recover Overtime Compensation
CONSTRUCTION SERVICING: Gandol Suit Removed to S.D. Florida
CONTINENTAL AG: Faces Novak Suit Over Tire Price Monopoly
CORTEVA INC: Bid for Protective Order Granted in Cockerill Suit
COSTCO WHOLESALE: Castillo May File Unredacted Complaint Under Seal
DIRECT ENERGY: Dickson Seeks to Strike Class Cert Supplemental Memo
DOORDASH INC: Omnity Sues Over Illegal Food Service Charges
DXC TECHNOLOGY: Shareholder Suit Over 2017 Stock Offering Ongoing
FIDELITY NATIONAL: Peralta Files Suit in C.D. California
FLORIDA HOME-IMPROVEMENT: Kennedy Files TCPA Suit in M.D. Florida
FUTURE FINTECH: Bragar Eagel Reminds of March 18 Deadline
GHOST BEVERAGES: Barrales Sues Over Mislabeled Beverage Products
GOLD BOND BUILDING: Petersen Suit Removed to N.D. California
GOLDMAN SACHS: Completion of Expert Discovery Extended
GREP SOUTHEAST: Boukardougha Sues Over Debt Collection Practices
ILLINOIS: District Court Dismisses Tatum Suit Without Prejudice
INFINITY MANAGEMENT: Anderson Files Suit in W.D. North Carolina
JERRY OFFERS: Prosser Suit Removed to E.D. Missouri
KEYCORP: Thompson's Reconsideration Bid in Gurevitch Suit Denied
MARYLAND: Court Dismisses Bonnett Prisoner Suit Against Warden
MASSACHUSETTS MUTUAL: S.D. New York Dismisses Lichter Class Suit
MCLAREN HEALTH: E.D. Michigan Prohibits Filings in Taylor Suit
MDL 2670: Court Denies DWI's Bid to Strike in Packaged Seafood Suit
META PLATFORM: Court Denies Bid to Dismiss Healthcare Pixel Suit
MINNESOTA: Bishop, Goodwin, McRae & Mosby Suits v. Swanson Tossed
NANOGATE NORTH: Fails to Pay Proper Wages, Moyer Alleges
NAUTIC PARTNERS: Fails to Prevent Data Breach, Durr Alleges
NEW YORK UNIVERSITY: Reply to Opposition Brief Due March 1
NIKE RETAIL: Objections to Discovery Order Overruled in Cruz Suit
NORPLUS INDUSTRIES: Fails to Pay Proper Wages, Balderas Alleges
NORTHWELL HEALTH: Has Until March 1 to Answer Vetere's Complaint
OTAY LAKES: S.D. California Tosses Renn's First Amended Complaint
PERMIAN RESOURCES: Beaumont Sues Over Shale Oil Monopoly
RECEIVABLES PERFORMANCE: Must Answer Hightower Suit by March 29
ROBLOX CORPORATION: Noel Sues Over Deceptive Commercial Ads
RYZE INC: Younger Suit Removed to C.D. California
SAN DIEGO DIALYSIS: Watson Suit Removed to S.D. California
SAN GABRIEL TEMPORARY: Acio Files Suit in Cal. Super. Ct.
SCHWAN'S CONSUMER: Thompson Suit Removed to S.D. New York
SECURED MARKETING: Heidarpour Files TCPA Suit in D. Arizona
SERVICE FINANCIAL: Zettel's Bid to Amend Denied; Suit Dismissed
VAXART INC: Seeks Sealing of Class Cert Docs in Himmelberg
VISION SERVICE: Class Settlement in Schmidt Suit Gets Initial Nod
VITAL FARMS: Ct. Tosses Plaintiffs' Bid to Unseal Class Cert Docs
WASHINGTON NEWSPAPER: Court Dismisses Pileggi's Amended Complaint
WAYNE COUNTY, MI: Class Discovery in Ingram Suit Due June 12
WELLABE ENTERPRISE: Welch Files TCPA Suit in M.D. Florida
WELLS FARGO BANK: Palma Files Suit in Cal. Super. Ct.
WHIRLPOOL CORP: Faces Class Suit Over Refrigerators Defective Wires
WILLIAMSBURG GARMENT: Durantas Files ADA Suit in E.D. New York
WINCO HOLDINGS: Gomez Suit Removed to E.D. California
WISCONSIN: Court Grants Bid for Summary Judgment in Shaw v. Dobson
XPONENTIAL FITNESS: City of Taylor Sues Over Drop in Share Price
*********
ACCELLION INC: Court Narrows Claims in Data Breach Litigation
-------------------------------------------------------------
Judge Edward J. Davila of the U.S. District Court for the Northern
District of California, San Jose Division, grants in part and
denies in part Accellion's motion to dismiss the consolidated
complaint in the lawsuit entitled IN RE ACCELLION, INC. DATA BREACH
LITIGATION, Case No. 5:21-cv-01155-EJD (N.D. Cal.).
The action arises from two data breaches in December 2020 and
January 2021 of Defendant Accellion, Inc., a cloud software company
whose file transfer software was widely used by governmental
entities, hospitals, universities, law firms, financial
institutions, and private companies.
Beginning in February 2021, several individual lawsuits were filed
against Accellion and its clients that used the vulnerable software
at issue, many of which were transferred to and consolidated in
this district. Following consolidation and the Court's appointment
of interim lead counsel, Accellion filed the present motion to
dismiss the consolidated complaint. The Court also heard oral
arguments on Oct. 19, 2023.
According to the Consolidated Class Action Complaint, Accellion,
Inc., is a cloud-based software company that provides an enterprise
content firewall that allegedly "prevents data breaches and
compliance violations from third party cyber risk." In the early
2000s, Accellion developed a file sharing transfer software called
File Transfer Appliance ("FTA"), which was intended to "facilitate
secure, encrypted file sharing that exceeded limits imposed on the
size of email attachments."
Accellion's file transfer services were used by hundreds of
companies, private organizations, and government entities. When
individuals transact with such entities that use Accellion's FTA
software, they are typically required to provide their private
identifying information ("PII"), which is then transferred by
Accellion. Accellion's services are used to securely transfer files
containing PII.
In the years preceding December 2020, Accellion allegedly became
aware that the FTA product was "nearing the end of its life" and
encouraged its customers to switch to a new product, called
Kiteworks.
On Dec. 16, 2020, an Accellion customer was alerted by the FTA's
anomaly detector that unauthorized third parties had exploited the
FTA. Upon investigation, Accellion confirmed that the FTA software
contained two security vulnerabilities, described as SQL Injection
and OS Command Execution. Between Dec. 16 and Dec. 23, Accellion
released two patches to address the vulnerabilities and notified
its clients between December 2020 and January 2021.
On Jan. 20, 2021, a second attack occurred, involving two
vulnerabilities described as Server-Side Request Forgery and OS
Command Execution. At this point, Accellion advised its clients to
shut down their FTA systems.
The Plaintiffs allege that these data breaches were the largest
breach in 2021 and one of the largest breaches during the last five
years. The Complaint lists over sixty (60) entities that had used
the FTA product and were impacted by the data breaches, which
include several state and governmental agencies, hospitals,
universities, law firms, financial institutions, and private
companies. Over the course of these two attacks, unauthorized
actors gained access to significant quantities of personally
identifiable information ("PII"), personal health information
("PHI"), and other information from these entities.
The Plaintiffs are individuals whose private details were exposed
to unauthorized actors as a result of these data breaches. The
information exposed included names, dates of birth, Social Security
numbers, driver's license numbers and/or state identification
numbers, collectively referred to as Plaintiff's "personally
identifiable information" ("PII"). They allege that they have
experienced identity theft, fraudulent charges on their bank and
credit accounts, temporary bank freezes, and out-of-pocket losses,
such as overdraft fees, credit monitoring costs, and credit card
reissuance fees.
On Feb. 17, 2021, the earliest filed complaint in this district was
filed by Madalyn Brown against Accellion, Inc., asserting one claim
of negligence and one claim for violation of the Washington
Consumer Protection Act ("WCPA"). Since then, several other
complaints were filed in this district and others across the
country against Accellion, as well as several of its customers
including Health Net, Flagstar Bank, and Kroger.
On Jan. 12, 2022, one group of plaintiffs filed a motion for
preliminary approval of class-wide settlement in one of the actions
in this district (Stobbe v. Accellion, Case No. 5:21-cv-01353-EJD).
However, before the motion could be resolved, this Court
consolidated nearly all of the related Accellion actions under the
present earliest opened docket.
On Feb. 10, 2023, the Court appointed interim co-lead class
counsel, which did not include the plaintiff group that reached
class-wide settlement. Following a subsequent investigation,
interim class counsel declined to proceed with the class-wide
settlement as to Accellion and filed a consolidated complaint.
Accellion filed the present motion to dismiss all claims asserted
against them, which has been fully briefed. On Dec. 19, 2023, the
Court heard oral arguments from the parties.
The Plaintiffs assert eleven claims against Accellion: (1)
negligence; (2) negligence per se; (3) violation of the California
Consumer Privacy Act; (4) violation of the Confidentiality of
Medical Information Act; (5) violation of the California Customer
Records Act; (6) intrusion upon seclusion; (7) breach of contract;
(8) unjust enrichment; (9) violation of the California Constitution
right to privacy; (10) violation of the Washington Consumer
Protection Act; and (11) violation of the Michigan Consumer
Protection Act ("MCPA").
As an initial point, Accellion first argues for dismissal due to
impermissible group pleading. However, any ambiguity as to the
group references to "Defendants" has largely been resolved by the
subsequent severance and transfer of all claims against Flagstar to
the Eastern District of Michigan, which is the only remaining
non-Accellion defendant in this consolidated action.
Because the Complaint expressly defines "Defendants" as referring
to Accellion and the Flagstar entities, the Court will evaluate the
Complaint's references to "Defendants" in the complaint as
references to Accellion only.
Accellion moves to dismiss the Plaintiffs' negligence claim for
failure to allege facts giving rise to a duty of care, breach of
any such duty, and cognizable damages. The Plaintiffs allege this
duty arose from Accellion's commitments to its clients; its role as
the purported expert guardians and gatekeepers of data; its
responsibility to provide data security consistent with industry
standards; the special relationship between Accellion and the end
users of the services it provided to its immediate clients; as well
as Accellion's common law duty to prevent foreseeable harm to
others.
Accordingly, the Court finds that the Plaintiffs have sufficiently
alleged damages for their negligence claim that are cognizable and
not barred by the economic loss rule.
Because the Court finds that a special relationship exists between
the parties that give rise to a duty of care, that Accellion
breached its duty, and the Plaintiffs have alleged cognizable
damages, the Court denies Accellion's motion to dismiss the
Plaintiffs' First Claim for negligence.
Accellion also moves to dismiss the Complaint's second claim, which
the Plaintiffs style as "negligence per se." This claim alleges
that Accellion's conduct breached the duty imposed under various
statutory regimes, including the Federal Trade Commission Act ("FTC
Act"), Health Insurance Portability and Accountability Act of 1996
("HIPAA"), the California Customer Records Act ("CCRA"), and the
Children's Online Privacy Protection Act ("COPPA").
Accellion contends that this claim is improper because "negligence
per se" is not an independent claim for relief under California law
and, even properly wielded as an evidentiary doctrine, the
Plaintiffs may not rely on the specific statutes to establish a
standard of care.
The Court agrees with Accellion to the extent that the Plaintiffs
may not maintain "negligence per se" as a standalone claim
alongside their negligence claim, which they themselves do not
appear to contest. On this point, the Court finds that the
Complaint does not state an independent claim for relief labeled
"negligence per se," which is, therefore, subject to dismissal as a
matter of law. Accellion's secondary arguments--that the Plaintiffs
have failed to allege why they may use the statutory standards of
care to establish their negligence claim--are less persuasive.
Here, although the Court does not find that the Plaintiffs can
maintain their negligence per se claim as a standalone cause of
action, the Court also will not preclude them from relying on the
provisions of the FTC Act, HIPAA, CCRA, or COPPA in support of the
elements in their negligence claim, provided they can also meet the
other requirements for negligence per se.
Accordingly, the Court grants Accellion's motion and dismisses
without leave to amend the Complaint's second claim for negligence
per se. This dismissal, however, will be without prejudice to the
Plaintiffs' alleging the underlying statutes under their negligence
claim to establish the applicable standards and duties of care.
Accellion moves to dismiss the Plaintiffs' claim under the
California Consumer Privacy Act ("CCPA") on two grounds: (1)
Accellion is not a "business" within the meaning of the statute;
and (2) the Complaint does not allege a specific non-conclusory
failure to implement reasonable security measures.
Because Accellion is not a "business" under the CCPA, the Court
need not and will not address Accellion's arguments as to its
reasonable security measures. However, Judge Davila notes, even if
Accellion may be a "business" with respect to data it collects from
its website, the CCPA expressly provides that the duty of
"reasonable security procedures and practices" imposed on
businesses only runs to the personal information that the business
collects. On that point, the Complaint asserts no CCPA claim
against the security measures protecting the personal information
collected pursuant to Accellion's privacy policy.
Because the Complaint fails to allege that Accellion is a
"business" under the CCPA with respect to the Plaintiffs' PII,
Judge Davila holds that the Plaintiffs cannot maintain their CCPA
claim against Accellion, and the Court need not address Accellion's
other CCPA arguments. Accellion's motion to dismiss the CCPA claim
is granted. Because the Court cannot conclude that the Plaintiffs
would be unable to resolve these deficiencies with further factual
amendment regarding the FTA product's operation on their PII, the
Third Claim is dismissed with leave to amend.
The Plaintiffs also allege that Accellion violated its obligations
under the expanded Confidentiality of Medical Information Act
("CMIA") definitions for businesses deemed to be a "provider of
health care." Accellion argues that the CMIA claim is deficient
because (1) Accellion is not an entity regulated by the CMIA; (2)
the Plaintiffs fail to allege that their medical information was
affected by the data breaches; and (3) the Plaintiffs failed to
allege negligence.
The Court agrees with Accellion that it does not fall within the
expanded Section 56.06 definitions of a "provider of health care."
First, under Section 56.06(a), the Plaintiffs have failed to
sufficiently allege that Accellion is a business organized for the
purpose of maintaining medical information. Second, under Section
56.06(b), the Court also finds that the Plaintiffs have failed to
allege that Accellion is a business that offered software or
hardware to consumers that is designed to maintain medical
information.
This case, therefore, offers limited persuasive weight here, Judge
Davila opines. Accellion and its file transfer software are much
farther removed from medical information than a health insurance
broker would be. Because the Complaint lacks facts from which the
Court could reasonably infer that Accellion was "organized for the
purpose of maintaining medical information" or offered software to
consumers that is "designed to maintain medical information," Judge
Davila finds the Plaintiffs have failed to allege that Accellion is
subject to CMIA obligations.
Although the Court believes it unlikely that the Plaintiffs could
discover and allege facts indicating that Accellion was designed to
"maintain medical information," the Court cannot conclude that it
would be futile. Accordingly, the Court grants Accellion's motion
and dismisses the CMIA claim with leave to amend.
The Complaint asserts a claim under the California Customer Records
Act ("CCRA") against Accellion, alleging that Accellion's failure
to promptly notify the Plaintiffs violated its obligations under
the CCRA. Accellion moves to dismiss this claim, arguing that (1)
the Plaintiffs are not Accellion's "customers" and, therefore, may
not initiate a civil action against it; (2) any obligation to
notify Plaintiffs belonged to Accellion's FTA customers, not
Accellion; and (3) the Plaintiffs' allegations of actions they
could have taken with timely disclosure are not cognizable injuries
under the CCRA.
Because the Plaintiffs are not "customers" of Accellion within the
meaning of the CCRA, the Court finds that they may not maintain
their CCRA claim against Accellion. Accellion's motion is granted.
Although the Court is not persuaded by the Plaintiffs'
interpretation of the CCRA, it cannot conclude that they cannot
plead facts that bring themselves within the definition of a
"customer" and, therefore, the CCRA claim is dismissed with leave
to amend.
The Plaintiffs also bring two privacy claims against Accellion: the
intentional tort of intrusion upon seclusion (Sixth Claim) and
violation of the California Constitution's right to privacy (Tenth
Claim). Accellion moves to dismiss these claims on identical
grounds, asserting that the Complaint contains no allegations of
Accellion's culpable state of mind for these intentional torts.
The Court does not find that the Plaintiffs have alleged "highly
offensive" conduct by Accellion, which is an element of both the
intrusion upon seclusion and invasion of privacy claims.
Accordingly, because the Complaint has failed to allege that
Accellion intentionally intruded or that the intrusion was highly
offensive, the Plaintiffs' Sixth and Tenth Claims are dismissed
with leave to amend.
The Plaintiffs also brings a claim for breach of contract against
Accellion as third-party beneficiaries. Accellion moves to dismiss
this claim because (1) it shares no privity of contract with any
Plaintiff, and (2) the End User License Agreement ("EULA")
governing Accellion's relationship with its clients contained an
express clause disclaim any third-party beneficiaries.
The Court agrees with Accellion that the third-party beneficiary
disclaimer clause control in this case and preclude the Plaintiffs
from recovery as intended third-party beneficiaries.
Because the Court finds that the Plaintiffs have not alleged
privity of contract with Accellion nor have they alleged facts that
would support an intent to create third-party beneficiary
obligations, the Court grants Accellion's motion to dismiss the
breach of contract claim without leave to amend.
Accellion moves to dismiss the Plaintiffs' unjust enrichment claim,
arguing that the Complaint does not sufficiently allege (1)
inadequacy of legal remedies, or (2) the elements for unjust
enrichment. Here, the Complaint contains no allegations regarding
the adequacy of the Plaintiffs' legal remedies.
Because the Plaintiffs have failed to allege facts supporting the
Court's equitable jurisdiction, the Plaintiffs' Ninth Claim for
unjust enrichment is dismissed with leave to amend.
Finally, Accellion moves to dismiss the WCPA claim because the
Plaintiffs failed to allege an unfair or deceptive act or practice
with respect to Accellion's data security practices.
Given how courts have interpreted and applied Washington law with
respect to the WCPA, the Court finds that the Complaint
sufficiently alleges an "unfair" act by Accellion in failing to
design, adopt, implement, control, direct, oversee, manage,
monitor, and audit appropriate data security processes, controls,
policies, procedures, protocols, and software and hardware systems
to safeguard and protect the Plaintiffs' and Washington Subclass
members' PII. And because this was the only basis for Accellion's
motion to dismiss the WCPA claim, Accellion's motion is denied with
respect to the Plaintiffs' Eleventh Claim for violation of the
WCPA.
Based on the foregoing, the Court grants in part and denies in part
Defendant Accellion's motion to dismiss, as follows:
1. Accellion's motion is denied as to the Plaintiffs' First
Claim for negligence and Eleventh Claim for violations of
the WCPA;
2. The Second Claim for negligence per se, the Seventh Claim
for breach of contract, and the Twelfth Claim for
violations of the MCPA are dismissed without leave to
amend;
3. The Third Claim for violations of the CCPA, the Fourth
Claim for violations of the CMIA, the Fifth Claim for
violations of the CCRA, the Sixth Claim for intrusion upon
seclusion, the Ninth Claim for unjust enrichment, and the
Tenth Claim for violations of the California Constitution
are dismissed with leave to amend.
A full-text copy of the Court's Order dated Jan. 29, 2024, is
available at http://tinyurl.com/ycyd79fyfrom PacerMonitor.com.
ACTIV ENTERPRISES: Hagler Suit Removed to C.D. California
---------------------------------------------------------
The case captioned as Christine Hagler, as an individual and on
behalf of others similarly situated v. ACTIV ENTERPRISES, LLC, a
Nevada Limited Liability Company, AMAZON LOGISTICS, INC., a
Delaware Corporation, AMAZON.COM SERVICES, LLC. a Delaware Limited
Liability Company, MICHAEL JAMES KIMBALL, an individual and DOES 1
through 50, Inclusive, Case No. 23STCV31902 was removed from the
Superior Court of the State of California for the County of Los
Angeles, to the U.S. District Court for the Central District of
California on Feb. 5, 2024, and assigned Case No. 2:24-cv-00990.
The Plaintiff asserts causes of action for: failure to pay wages
upon termination; failure to pay wages; failure to pay wages;
failure to reimburse business expenses; failure to pay lawful meal
periods; failure to provide lawful rest periods; Unfair
Competition; and failure to furnish accurate itemized wage
statements.[BN]
The Defendants are represented by:
Brian D. Fahy, Esq.
Max Fischer, Esq.
MORGAN, LEWIS & BOCKIUS LLP
300 South Grand Avenue
Twenty-Second Floor
Los Angeles, CA 90071-3132
Phone: +1.213.612.2500
Fax: +1.213.612.2501
Email: brian.fahy@morganlewis.com
max.fischer@morganlewis.com
- and -
Sarah Zenewicz, Esq.
Miranda M. Rowley, Esq.
MORGAN, LEWIS & BOCKIUS LLP
One Market, Spear Street Tower
San Francisco, CA 94105
Phone: +1.415.442.1000
Fax: +1.415.442.1001
Email: sarah.zenewicz@morganlewis.com
miranda.rowley@morganlewis.com
AKIMA GLOBAL: Parties Seek More Time for Class Cert. Bid Filing
---------------------------------------------------------------
In the class action lawsuit captioned as Yeend et al v. Akima
Global Services, LLC, Case No. 1:20-cv-01281-TJM-CFH (N.D.N.Y.),
the Parties ask the Court to enter an order extending the expert
discovery and class certification deadlines to accommodate
unforeseen scheduling difficulties.
To date, the parties have exchanged expert disclosures and have
scheduled depositions of Plaintiffs' expert witnesses. However, due
to an unforeseen scheduling issue, Defendant’s rebuttal expert is
unavailable for deposition until March 22, 2024.
As a result, the parties request that the Court extend the expert
discovery deadline to March 22, 2024 and extend the class
certification deadline to April 5, 2024, in order to give the
parties time to incorporate all necessary expert testimony into
their motion papers.
Akima specializes in information technology system integration,
detention management operations, as well as data and records
management.
A copy of the Parties' motion dated Jan. 26, 2024 is available from
PacerMonitor.com at https://urlcurt.com/u?l=vChob3 at no extra
charge.[CC]
The Defendant is represented by:
Jessica L. Marrero, Esq.
THE KULLMAN FIRM
1100 Poydras St., Suite 1600
New Orleans, LA 70163
Telephone: (504) 524-4162
Facsimile: (504) 596-4114
E-mail: JLM@kullmanlaw.com
ALBERT EINSTEIN: Fails to Pay Proper Wages, Castillo Alleges
------------------------------------------------------------
RINALDYS CASTILLO, individually and on behalf of all others
similarly situated, Plaintiff v. ALBERT EINSTEIN COLLEGE OF
MEDICINE INC.; MONTEFIORE HEALTH SYSTEMS, INC.; and MONTEFIORE
MEDICAL CENTER, Defendants, Case No. 1:24-cv-00984 (S.D.N.Y., Feb.
9, 2024) is an action against the Defendant's failure to pay the
Plaintiff and the class overtime compensation for hours worked in
excess of 40 hours per week.
Plaintiff Castillo was employed by the Defendants as a study
coordinator.
Albert Einstein College of Medicine, Inc. was founded in 2014. The
company's line of business includes the operation of colleges and
universities. [BN]
The Plaintiff is represented by:
Jeremiah Frei-Pearson, Esq.
Andrew C. White, Esq.
Erin Raye Kelley, Esq.
FINKELSTEIN, BLANKINSHIP,
FREI-PEARSON & GARBER, LLP
One North Broadway, Suite 900
White Plains, NY 10601
Telephone: (914) 298-3281
Email: jfrei-pearson@fbfglaw.com
awhite@fbfglaw.com
ekelley@fbfglaw.com
- and -
Shane Seppinni, Esq.
SEPPINNI LAW
40 Broad St., 7th Fl.
New York, NY 10004
Telephone: (212) 859-5085
Email: shane@seppinnilaw.com
APPLE INC: Bid to Divide Economic Expert Conclave Discussions
-------------------------------------------------------------
Naomi Neilson of Lawyers Weekly reports that appearing before the
Federal Court on February 16, 2024, counsel for Epic Games, Neil
Young KC, requested an economic expert conclave be divided into two
parts because Google did not meet a deadline to serve its own
expert evidence to the court.
The economic expert conclave will discuss matters such as payment
features and overcharging allegations in Apple and Google's app
stores as part of Epic Games' allegations the two forced app
developers to pay "materially higher" commissions.
Prior to February 16, 2024, all three were to be involved in the
same conclave. However, Mr Young said he was "concerned about the
consequences of the delay on the trial and trial preparation" and
submitted it would be more efficient to move forward with just
Apple.
"We do say the expert conclave is ready to be set up and proceeded
with in the Apple case . . . it should not be referred," Mr Young
said.
Counsel for Google, Cameron Moore SC, complained splitting the two
conclaves could "really cause confusion or difficulty".
Mr Moore said he was particularly concerned one expert - who both
Google and Apple were to rely on - may be swayed by decisions made
in one conclave so then cannot be objective to the next.
Representing Apple, Matthew Darke SC said he would also oppose this
because of the "significant overlap" for both Apple and Google.
"It's going to lead to overlapping reports in the two proceedings
that will only make the economic evidence … difficult to
comprehend. "
"For the sake of the two-week delay and the combined conclave
process, it is the lesser of the two evils to keep them together
rather than separate them out," Mr Darke submitted.
But Justice Jonathan Beach rejected these arguments, finding
instead it was better to move forward with two conclaves given the
delay.
"It's not going to prejudice you; it's just going to be a less
efficient way of dealing with things," Justice Beach told Google.
When Justice Beach added Google was "the cause of your own
misfortune" because of the delay, Mr Moore said Epic Games had
"months and months and months" of its own delay in comparison.
"It hasn't really pushed the timetable very much at all from what
must have been clear from [Epic Games] delay," Mr Moore said.
Responding to concerns one expert may be influenced, Justice Beach
told Mr Moore this was only Apple's risk.
He also raised the possibility of ordering a supplementary report
if there are any major differences between the expert reports.
Given it is the "lesser of two evils", the order to split was
made.
"More convincingly, it seems to me that Google suffers no permanent
prejudice whatsoever by adopting this process," Justice Beach
said.
"If there are any imperfections … by reason of splitting off the
expert evidence, those matters can easily be resolved at a later
time." [GN]
ATLASSIAN CORP: Firemen's Fund Securities Suit Dismissed
--------------------------------------------------------
Atlassian Corporation disclosed in its Form 10-Q report For the
quarterly period ended September 30, 2023, filed with the
Securities and Exchange Commission on November 3, 2023, that on
January 22, 2024, the U.S. District Court for the Northern District
of California issued a ruling granting the defendants' motion to
dismiss, and providing the plaintiffs until February 12, 2024 to
file an amended complaint. This with regards to a putative
securities class action was filed in said court on February 3,
2023, captioned "City of Hollywood Firefighters' Pension Fund v.
Atlassian Corporation," Case No. 3:23-cv-00519, naming the company
and certain of its officers as defendants.
The lawsuit is purportedly brought on behalf of purchasers of the
company's securities between August 5, 2022 and November 3, 2022
and alleges claims under Sections 10(b) and 20(a) of the Securities
Exchange Act of 1934 based on allegedly false and misleading
statements about the company's business and prospects during the
class period.
The lawsuit seeks unspecified damages. The defendants filed a
motion to dismiss on September 8, 2023, and the plaintiffs filed
their opposition on October 23, 2023. The defendants' reply is
currently due November 22, 2023, and a hearing is currently
scheduled for January 10, 2024.
Atlassian Corporation, a Delaware corporation, designs, develops,
licenses, and maintains software and provisions software hosting
services to help teams organize, discuss, and complete their work.
The company's primary products include "Jira Software" and "Jira
Work Management" for planning and project management, "Confluence"
for content creation and sharing, and "Jira Service Management" for
team service, management and support applications.
AUSTRALIA: Suit on Illegal Ban of Live Cattle Trade Back to Courts
------------------------------------------------------------------
Shan Goodwin of The North West Star reports that Prominent beef
industry identity Troy Setter spoke in a senate estimates hearing
of family farms lost, producer suicides and people dying before
seeing due compensation from the Gillard Government's illegal ban
of the live cattle trade to Indonesia in 2011.
He was asked about the Commonwealth's rejection of a counter offer
in the class action that has been going on for 13 years, which
means the 215 producers and beef businesses involved will yet again
be dragged back to the courts.
Mr Setter was appearing as chair of the livestock export industry's
research and development body, LiveCorp, in the Rural and Regional
Affairs and Transport Committee hearing.
He is also chief executive officer of Consolidated Pastoral
Company, Australia's largest private beef producer with two
feedlots in Indonesia.
Mr Setter referred to the Commonwealth's latest move in the legal
matter as a delaying tactic and said it demonstrated a lack of
model litigant behaviour.
The class action members had offered to accept $510 million, plus
costs and interest, to break the legal deadlock.
In the early days of the legal action compensation upwards of $2
billion was suggested.
The Commonwealth has been ordered to pay compensation following a
Federal Court ruling that the 2011 was illegal.
Justice Steven Rares handed down that finding in 2020, calling the
decision 'capricious and unreasonable'. Negotiations over the
compensation amount have been going on since.
Mr Setter said people entitled to compensation had died from old
age in the years since the class action began.
He said that was a side to this matter that was "really sad".
He made the point that negotiations had been so drawn out that the
first judge involved had since retired.
Minister for Agriculture Murray Watt came under heavy fire on the
subject in the estimates hearing.
Victorian Liberal senator Bridget McKenzie asked him to explain how
his government's rejection of the offer fits the model litigant
guidelines, given his career as a lawyer specialising in class
actions.
Mr Watt said he had limited involvement in the case as it was not
being administered by his portfolio - it comes under the Attorney
General's responsibility.
However, he had "not seen or heard anything that makes me think the
Commonwealth has failed to be a model litigant."
He said the Commonwealth made an offer to settle in December 2022
(of $215 million) and the claimants took 12 months to respond.
"The judge had a number of pretty negative things to say about the
claimants' lawyers over the course of that 12 months," Mr Watt
said.
Judge Rares criticised figures put forward by lawyers for the class
action around how many extra head of cattle might have gone to
Indonesia had the closure not occurred.
He said it was "cloud cuckoo land to start saying that there would
have been 800,000 more cows going across over the next three
years." [GN]
AVIANNES INC: Erkan Files ADA Suit in E.D. New York
---------------------------------------------------
A class action lawsuit has been filed against Aviannes, Inc. The
case is styled as Nihal Erkan, on behalf of herself and all others
similarly situated v. Aviannes, Inc., Case No. 1:24-cv-00796
(E.D.N.Y., Feb. 2, 2024).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Avianne Jewelers -- https://www.avianneandco.com/ -- is a seller of
gold and diamond jewellery that provides wedding bands, engagement
rings, and apparel.[BN]
The Plaintiff is represented by:
Mars Khaimov, Esq.
14749 71st Ave.
Flushing, NY 11367
Phone: (917) 915-7415
Email: mars@khaimovlaw.com
BAKED BY MELISSA: Villaverde Sues Over Unlawful Telephonic Calls
----------------------------------------------------------------
Amanda Villaverde, individually and on behalf of all others
similarly situated v. BAKED BY MELISSA, LLC, Case No.
CACE-24-001529 Fla. 17th Judicial Ct., Broward Cty., Feb, 4, 2024),
is brought for injunctive and declaratory relief, and damages for
violations of the Caller ID Rules of the Florida Telephone
Solicitation Act ("FTSA") as a result of unlawful Telephonic Sales
Calls.
Whenever a person either makes any type of Telephonic Sales Call or
causes one to be made, that person must ensure that a telephone
number is transmitted with that Telephonic Sales Call to the
consumer's Caller ID service that is capable of receiving telephone
calls. Whenever Telephonic Sales Call are made without the
transmission of a telephone number that is capable of receiving
telephone calls, the Caller ID Rules have been violated and the
aggrieved party may bring an action for liquidated damages, and
injunctive and declaratory relief.
In direct contravention of the Caller ID Rules, however, many
callers, such as Defendant, make Telephonic Sales Calls a central
part of their marketing strategy, and in doing so, intentionally
transmit telephone numbers to recipient's Caller ID services that
are not capable of receiving telephone calls. As such, Plaintiff,
brings this action alleging that Defendant violated the FTSA's
Caller ID Rules by transmitting a phone number that was not capable
Of receiving phone calls when it made Telephonic Sales Calls by
text message ("Text Message Sales Calls").
Specifically, the Defendant made Text Message Sales Calls that
promoted Baked by Melissa ("Baked by Melissa Text Message Sales
Calls") and violated the Caller ID Rules when it transmitted to the
recipients' caller identification services a telephone number that
was not capable of receiving telephone calls. The Plaintiff,
individually and on behalf of a class of persons similarly
situated, further seeks injunctive relief to ensure Defendant
complies with the Caller ID Rules when it makes Baked by Melissa
Text Message Sales Calls, says the complaint.
The Plaintiff is the regular user of a cellular telephone number
that receives Defendant's telephonic sales calls.
Baked by Melissa, LLC, is Foreign Limited Liability Company, which
sells various goods to persons throughout the country through its
online store.[BN]
The Plaintiff is represented by:
Joshua A. Glickman, Esq.
Shawn A. Heller, Esq.
SOCIAL JUSTICE LAW COLLECTIVE, PL
974 Howard Ave.
Dunedin, FL 34698
Phone: (202) 709-5744
Fax: (866) 893-0416
Email: josh@sjlawcollective.com
shawn@sjlawcollective.com
BATHS OF DISTINCTION: Karim Files ADA Suit in S.D. New York
-----------------------------------------------------------
A class action lawsuit has been filed against Baths of Distinction,
Inc. The case is styled as Jessica Karim, on behalf of herself and
all others similarly situated v. Baths of Distinction, Inc., Case
No. 1:24-cv-00826 (S.D.N.Y., Feb. 5, 2024).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Baths of Distinction Inc. -- https://www.bathsofdistinction.com/ --
designs and manufactures superior quality clawfoot and pedestal
bath tubs and accessories for homeowners and industry
professionals.[BN]
The Plaintiff is represented by:
Gabriel Levy, Esq.
GABRIEL A. LEVY, P.C.
1129 Northern Blvd., Suite 404
Manhasset, NY 11030
Phone: (516) 287-3458
Email: glevy@glpcfirm.com
BEYOND HEALTH: Suarez Files ADA Suit in S.D. New York
-----------------------------------------------------
A class action lawsuit has been filed against Beyond Health
International, LLC. The case is styled as Alvin Suarez, on behalf
of himself and all others similarly situated v. Beyond Health
International, LLC, Case No. 1:24-cv-00822 (S.D.N.Y., Feb. 5,
2024).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Beyond Health International, LLC -- https://beyondhealth.com/ --
offers supplements, vitamins, and health-supporting products
online.[BN]
The Plaintiff is represented by:
Gabriel Levy, Esq.
GABRIEL A. LEVY, P.C.
1129 Northern Blvd., Suite 404
Manhasset, NY 11030
Phone: (516) 287-3458
Email: glevy@glpcfirm.com
BLENKO GLASS COMPANY: Liz Files ADA Suit in S.D. New York
---------------------------------------------------------
A class action lawsuit has been filed against Blenko Glass Company,
Inc. The case is styled as Pedro Liz, on behalf of himself and all
others similarly situated v. Blenko Glass Company, Inc., Case No.
1:24-cv-00815 (S.D.N.Y., Feb. 5, 2024).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Blenko Glass Company -- https://blenko.com/ -- was founded in 1922.
The Company's line of business includes the manufacturing of flat
glass used in buildings and other products.[BN]
The Plaintiff is represented by:
Gabriel Levy, Esq.
GABRIEL A. LEVY, P.C.
1129 Northern Blvd., Suite 404
Manhasset, NY 11030
Phone: (516) 287-3458
Email: glevy@glpcfirm.com
BLOOMBERG LP: Ndugga Action Referred to Magistrate Judge
--------------------------------------------------------
In the class action lawsuit captioned as NAULA NDUGGA, v.
BLOOMBERG, L.P., et al., Case No. 1:20-cv-07464-GHW-GWG (S.D.N.Y.),
the Hon. Judge Gregory H. Woods entered an order referring the
Ndugga action to a United States magistrate judge for the following
purpose:
-- General pretrial (includes scheduling, discovery,
non-dispositive
pretrial motions, and settlement)
-- Dispositive motion (i.e., motion requiring Report and
Recommendation) Particular motion: the Defendant's anticipated
motion to deny class certification and to dismiss.
Bloomberg is a privately held financial, software, data, and media
company.
A copy of the Court's order dated Jan. 26, 2024 is available from
PacerMonitor.com at https://urlcurt.com/u?l=NACNa5 at no extra
charge.[CC]
BOEING COMPANY: Berry Suit Removed to W.D. Washington
-----------------------------------------------------
The case captioned as Elna Berry, Bart Berry, Gwint L. Fisher,
Renee Fisher, Iris Ruiz, Garet Cunningham, Rosalba Ruiz, Suzannah
Anderson, Caden Ashkar, Kendra Frome, Jacob Frome, Hazel Frome,
Olivia Frome, individually and on behalf of all others similarly
situated v. The Boeing Company, Alaska Airlines, Inc., , Case No.
24-00002-00824-1 KNT was removed from King County Superior Court,
to the U.S. District Court for the Western District of Washington
on Feb. 1, 2024.
The District Court Clerk assigned Case No. 2:24-cv-00134 to the
proceeding.
The nature of suit is stated as Insurance Contract.
The Boeing Company -- https://www.boeing.com/ -- is an American
multinational corporation that designs, manufactures, and sells
airplanes, rotorcraft, rockets, satellites, telecommunications
equipment, and missiles worldwide.[BN]
The Plaintiff is represented by:
A. Melanie Nguyen, Esq.
Bradley Jerome Moore, Esq.
STRITMATTER KESSLER KOEHLER MOORE (SEA)
3600 15th Ave. W., Ste. 300
Seattle, WA 98119-1330
Phone: (206) 448-1777
Email: melanie@stritmatter.com
brad@stritmatter.com
- and -
Daniel Robert Laurence, Esq.
Furhad Sultani, Esq.
STRITMATTER KESSLER KOEHLER MOORE (SEA)
3600 15th Ave W, Ste 300
Seattle, WA 98119-1330
Phone: (206) 448-1777
Fax: (206) 728-2131
Email: dan@stritmatter.com
furhad@stritmatter.com
The Defendant is represented by:
Mack Harrison Shultz, Jr., Esq.
Christopher Martin Ledford, Esq.
PERKINS COIE
1201 3rd Ave., Ste. 4800
Seattle, WA 98101-3099
Phone: (206) 583-8888
Fax: 583-8500
Email: kymberlykochis@eversheds-sutherland.com
CLedford@perkinscoie.com
- and -
Caryn Geraghty Jorgensen, Esq.
McKenzi Hoover, Esq.
STOKES LAWRENCE PS (SEATTLE)
1420 Fifth Avenue, Ste. 3000
Seattle, WA 98101-2393
Phone: (206) 626-6000
Email: caryn.jorgensen@stokeslaw.com
mckenzi.hoover@stokeslaw.com
- and -
Robert L. Bowman, Esq.
COZEN O'CONNOR (SEA)
999 Third Avenue, Suite 1900
Seattle, WA 98104
Phone: (253) 752-1600
Email: rlb@stokeslaw.com
BRIDGES COMMUNITY: Duenas Files Suit in Cal. Super. Ct.
-------------------------------------------------------
A class action lawsuit has been filed against Bridges Community
Treatment Services, Inc. The case is styled as Gustavo Duenas, an
individual, on behalf of himself, and on behalf of all persons
similarly situated v. Bridges Community Treatment Services, Inc.,
Case No. 24STCV02786 (Cal. Super. Ct., Los Angeles Cty., Feb. 1,
2024).
The case type is stated as "Other Employment Complaint Case
(General Jurisdiction)."
Bridges Community Treatment Services, Inc. (trade name Bridges) is
in the Psychiatric Hospitals business.[BN]
The Plaintiff is represented by:
Nicole Barvie, Esq.
BARVIE LAW, APC
550 W B St., Fl .4
San Diego, CA 92101-3537
Phone: 858-255-0928
Fax: 858-357-8592
Email: nicole@barvielaw.com
BRIDGESTONE CORP: Faces Alford Suit Over Tire Market Monopoly
-------------------------------------------------------------
JAMES ALFORD, individually and on behalf of all other similarly
situated, Plaintiff v. BRIDGESTONE CORPORATION; BRIDGESTONE
AMERICAS, INC.; CONTINENTAL AKTIENGESELLSCHAFT; CONTINENTAL TIRE
THE AMERICAS, LLC; COMPAGNIE GENERALE DES ETABLISSEMENTS MICHELIN
SCA; COMPAGNIE FINANCIÈRE MICHELIN SA; MICHELIN NORTH AMERICA,
INC.; NOKIAN TYRES PLC; NOKIAN TYRES INC; NOKIAN TYRES U.S.
OPERATIONS LLC; THE GOODYEAR TIRE & RUBBER COMPANY; PIRELLI & C.
S.P.A.; PIRELLI TIRE LLC; AND DOES 1-100, Defendants, Case No.
1:24-cv-01038 (S.D.N.Y., Feb. 12, 2024) is an action arising from
the unlawful agreement between Defendants to artificially increase
and fix the prices of new replacement tires for passenger cars,
vans, trucks and buses ("Tires") sold in the United States.
According to the Plaintiff in the complaint, the Defendants
coordinated price increases, including through public
communications. Beginning no later than January 1, 2020, and
continuing until the effects of their anticompetitive conduct have
ceased (the "Class Period"), Defendants contracted, combined and/or
conspired to fix, raise, maintain or stabilize prices for new
replacement tires (collectively, "Tires") for passenger cars, vans,
trucks and buses sold in the United States.
The Defendants effectuated their price fixing conspiracy by, among
other means, signaling price increases during earnings calls and
other public statements, implementing revenue management software
to facilitate and exchange pricing information, participating in
annual industry meetings and coordinating supply reductions to keep
prices artificially high, says the suit.
BRIDGESTONE CORPORATION designs, produces, and sells automobile
tires. The Company also produces and markets scales to weigh racing
cars and jumbo aircrafts and sporting goods including golf
equipment, tennis rackets, and bicycles. [BN]
The Plaintiff is represented by:
Michael R. Reese, Esq.
REESE LLP
100 West 93 rd Street, 16th Floor
New York, NY 10025
Telephone: (212) 643-9500
Email: mreese@reesellp.com
- and -
Heidi M. Silton, Esq.
Jessica N. Servais, Esq.
Joseph C. Bourne, Esq.
LOCKRIDGE GRINDAL NAUEN PLLP
100 Washington Avenue South, Suite 2200
Minneapolis, MN 55401
Telephone: (612) 339-6900
Facsimile: (612) 339-0981
Email: hmsilton@locklaw.com
jnservais@locklaw.com
jcbourne@locklaw.com
- and -
Shpetim Ademi, Esq.
ADEMI LLP
3620 East Layton Avenue
Cudahy, WI 53110
Telephone: (414) 482-8000
Facsimile: (414) 482-8001
Email: sademi@admilaw.com
BYWOOPS LLC: Durantas Files ADA Suit in E.D. New York
-----------------------------------------------------
A class action lawsuit has been filed against ByWoops, LLC. The
case is styled as Hakan Durantas, on behalf of himself and all
others similarly situated v. ByWoops, LLC, Case No.
1:24-cv-00790-NCM-MMH (E.D.N.Y., Feb. 2, 2024).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
ByWoops, LLC -- https://bywoops.com/ -- offers premium french
macaron gift boxes for every occasion.[BN]
The Plaintiff is represented by:
Mars Khaimov, Esq.
14749 71st Ave.
Flushing, NY 11367
Phone: (917) 915-7415
Email: mars@khaimovlaw.com
CALIFORNIA PHYSICIANS': Bosley Suit Removed to S.D. California
--------------------------------------------------------------
The case captioned as Bradford Bosley, Patricia Bosley, on behalf
of all others similarly situated and the general public v.
California Physicians' Service doing business as: Blue Shield of
California, Medical Eye Services, Inc. doing business as: MES
Vision, Case No. 37-02023-00054940-CU-CO-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 Feb. 2,
2024.
The District Court Clerk assigned Case No. 3:24-cv-00229-WQH-KSC to
the proceeding.
The nature of suit is stated as Insurance P.I. for Breach of
Contract.
California Physicians' Service doing business as Blue Shield of
California -- https://www.blueshieldca.com/en/home -- is a mutual
benefit corporation and health plan founded in 1939 by the
California Medical Association.[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 Defendant is represented by:
Kyle T. Cutts, Esq.
127 Public Square, Suite 2000
Cleveland, OH 44114
Phone: (216) 861-7576
Email: kcutts@bakerlaw.com
CHIPOTLE SERVICES: Fails to Pay Proper Wages, Cross Alleges
-----------------------------------------------------------
JOANNA CROSS; and APRIL WHELCHEL, individually and on behalf of all
other similarly situated, Plaintiffs v. CHIPOTLE SERVICES, LLC,
Defendant, Case No. 3:24-cv-00164 (M.D. Tenn., Feb. 9, 2024) seeks
to recover from the Defendants unpaid wages and overtime
compensation, interest, liquidated damages, attorneys' fees, and
costs under the Fair Labor Standards Act.
The Plaintiffs were employed by the Defendant as staff.
CHIPOTLE SERVICES, LLC is chain of fast casual restaurants
specializing in bowls, tacos, and ission burritos made to order in
front of the customer. [BN]
The Plaintiffs are represented by:
J. Russ Bryant, Esq.
Gordon E. Jackson, Esq.
J. Joseph Leatherwood IV, Esq.
JACKSON, SHIELDS, YEISER, HOLT
OWEN & BRYANT
262 German Oak Drive
Memphis, TN 38018
Telephone: (901) 754-8001
Facsimile: (901) 754-8524
Email: gjackson@jsyc.com
rbryant@jsyc.com
jleatherwood@jsyc.com
CLEAN RITE: E.D. New York Narrows Claims in Greene Consumer Suit
----------------------------------------------------------------
Judge Pamela K. Chen of the U.S. District Court for the Eastern
District of New York grants in part and denies in part the
Defendants' motion to dismiss the Plaintiff's first amended
complaint in the lawsuit captioned BERTHA GREENE, individually and
on behalf of all others similarly situated, Plaintiff v. CLEAN RITE
CENTERS, LLC and LAUNDROMAX NEW ENGLAND, LLC, Defendants, Case No.
1:22-cv-01750-PKC-RML (E.D.N.Y.).
Plaintiff Bertha Greene brings this action on behalf of herself and
similarly situated individuals, who possess reloadable cash cards
("Laundry Cards") provided by Defendants Clean Rite Centers, LLC,
and LaundroMax New England, LLC, for use in laundry machines in
laundromats operated by the Defendants. The Plaintiff alleges that
the Defendants' policies concerning the Laundry Cards are deceptive
and asserts claims against the Defendants for violations of
Massachusetts's and New York's respective consumer deception
statutes, as well as for unjust enrichment.
The Defendants move to dismiss the Plaintiff's First Amended
Complaint ("FAC") under Federal Rule of Civil Procedure 12(b)(6)
for failure to state a claim upon which relief can be granted. For
the reasons set forth in this Memorandum & Order, the Defendants'
motion is granted as to the Plaintiff's New York law and unjust
enrichment claims; however, her unfairness claim under
Massachusetts law may proceed, provided that she sufficiently
alleges subject matter jurisdiction under the Class Action Fairness
Act ("CAFA"), 28 U.S.C. Section 1332(d), in her Second Amended
Complaint.
Clean Rite is a New York limited liability company with its
principal place of business in New York that operates laundromats
throughout the United States. Clean Rite is the parent company of
LaundroMax New England, a Massachusetts limited liability company
with its principal place of business in New York. The Defendants
sell Laundry Cards that are designed to be used in laundry machines
they provided and serviced at their laundromats.
The Plaintiff is a citizen of Massachusetts. She has an unusable
Laundry Card that contains a balance of less than $5 that is
inaccessible and not refundable due to the Defendants' policies.
She seeks to represent a class defined as all persons in the United
States who possess Laundry Cards provided by the Defendants (the
"Class"). She also seeks to represent a subclass of all Class
members who reside in Massachusetts.
The Plaintiff alleges, among other things, that the Defendants
intentionally set the possible refill amounts and costs of using
the machines at rates that guarantee customers' Laundry Cards will
never reach a balance of zero. Any remaining balance on the Laundry
Card is non-refundable, and because that policy is not revealed
until after purchase (if ever), the remaining balances function as
"hidden fees" that are not disclosed to customers. As such, the
Plaintiff was not aware that she would be unable to use or
otherwise access the entirety of her balance when she purchased her
Laundry Card.
On March 29, 2022, the Plaintiff filed a complaint against the
Defendants seeking individual and class-based relief. On June 1,
2022, the Defendants requested a pre-motion conference ("PMC")
regarding an anticipated motion to dismiss for lack of subject
matter jurisdiction and for failure to state a claim upon which
relief could be granted. After the Plaintiff indicated that she
intended to file an amended complaint, the Court denied the
Defendants' PMC request without prejudice to renew.
On June 21, 2022, the Plaintiff filed the operative First Amended
Complaint, which asserts claims against the Defendants for: (1)
violations of Massachusetts General Law Chapter 93A (Count One);
(2) unjust enrichment (Count Two); and (3) violations of New York
General Business Law Section 349 (Count Three). She brings Count
One against Defendant Clean Rite on behalf of herself and members
of the Massachusetts Subclass, and against Defendant LaundroMax New
England on behalf of herself and members of the Class and the
Massachusetts Subclass. She brings Counts Two and Three against the
Defendants on behalf of herself and members of the Class and the
Massachusetts Subclass.
On July 5, 2022, the Defendants filed a second PMC request
regarding an anticipated motion to dismiss the FAC. The Court
granted the Defendants' request, and held a PMC with the parties on
Aug. 16, 2022. At the conference, the Court set a briefing schedule
for the Defendants' motion. The motion was fully briefed as of Oct.
28, 2022. Notably, the Defendants' Motion to Dismiss the FAC argues
only failure to state a claim under Federal Rule of Civil Procedure
("FRCP") 12(b)(6), and not lack of subject matter jurisdiction
under FRCP 12(b)(1).
The Court agrees with the Defendants that the Plaintiff has failed
to plausibly allege the Laundry Cards are gift certificates within
the meaning of the statute. Specifically, there are no allegations
that the Laundry Cards are "purchased by a buyer for use by a
person other than the buyer." To the contrary, the FAC indicates
that the Plaintiff purchased the Laundry Card for her own use, not
as a gift for someone else.
The Court declines the Plaintiff's invitation to ignore the second
element of the definition, which is drawn directly from the
statute's text, Mass. Gen. Laws ch. 255D, Section 1 (defining "gift
certificate" as a writing identified as a gift certificate
purchased by a buyer for use by a person other than the buyer). As
such, Judge Chen points out that the Plaintiff's Chapter 93A claim,
as premised on a violation of the Gift Certificate Statute, fails.
The Court finds that the FAC fails to sufficiently allege that the
Defendants' Laundry Card policies were deceptive under Chapter 93A.
Judge Chen opines that the Plaintiff has not plausibly alleged that
the Defendants told a half-truth or remained silent in
circumstances that gave rise to an implied false impression. The
FAC contains no allegations concerning affirmative statements made
by the Defendants except for a single, extremely general quote from
LaundroMax's website. Thus, the FAC fails to allege that the
disclosure of the no-refund policy was necessary to prevent one of
the Defendants' affirmative statements from creating a misleading
impression.
However, while the Plaintiff has not plausibly alleged that the
Defendants' non-disclosures were deceptive under Chapter 93A, the
Court finds that she has plausibly alleged a Chapter 93A violation
based on unfairness. The Plaintiff has plausibly alleged that the
Defendants' non-disclosure of their Laundry Card policies falls
within the penumbra of a common law, statutory, or other
established concept of unfairness.
Even if there is no statute or regulation that specifically
requires purveyors of reloadable laundry cards to expressly
disclose their refund policies, Judge Chen says there are certainly
statutes, including the Gift Certificate Statute, that require
disclosure in similar circumstances. Taken together, the
Plaintiff's allegations plausibly plead a claim of unfair acts and
practices in violation of Chapter 93A.
Judge Chen notes that Section 349 declares unlawful deceptive acts
or practices in the conduct of any business, trade or commerce or
in the furnishing of any service in New York state. Two different
tests have emerged to determine whether allegations satisfy the
statute's territoriality requirement. The first focuses on where
the deception of the plaintiff occurs and requires, for example,
that a plaintiff actually view a deceptive statement while in New
York. The second focuses on where the underlying deceptive
"transaction" takes place, regardless of the plaintiff's location
or where the plaintiff is deceived.
The Plaintiff's Section 349 claim fails under both frameworks,
Judge Chen holds. First, there are no allegations that the
Plaintiff was deceived "while in New York," or even that she has
ever been to New York. Accordingly, the FAC fails to establish the
Plaintiff's statutory standing to assert a Section 349 claim based
on where the alleged deception occurred. Second, the Plaintiff has
not sufficiently pled that a deceptive transaction, or part of a
deceptive transaction, took place in New York. Thus, the FAC fails
to satisfy the transaction-based framework as well.
In sum, the facts alleged in the FAC neither individually nor
cumulatively establish that some part of the underlying transaction
occurred in New York State, Judge Chen opines, citing Wright v.
Publishers Clearing House, Inc., 439 F. Supp. 3d 102, 110 (E.D.N.Y.
2020). Without a connection between her specific transaction with
the Defendants and New York, the Plaintiff has no statutory
standing to bring a claim under Section 349. As such, Count Three,
the Plaintiff's Section 349 claim, is dismissed.
Judge Chen finds that the Plaintiff's unjust enrichment claim is
duplicative of her claims under the Massachusetts and New York
consumer protection laws. The Plaintiff asserts that the
Defendants' alleged unjust enrichment stems from their retaining
the revenues derived from her and Class members' Laundry Card
balance remainders, and failing to disclose that their prepayment
and refund policies were structured in a way that maximized the
balance remainders and then made these balances impossible to
access by not providing refunds. These allegations comprise the
very same conduct that underlies the Plaintiff's statutory claims.
For the reasons set forth, Judge Chen rules that the Defendants'
Motion to Dismiss is granted in part and denied in part. The Court
grants the Defendants' Motion to Dismiss as to the Plaintiff's
Section 349 and unjust enrichment claims. The Plaintiff's Chapter
93A claim will be limited to the unfairness claim.
The Plaintiff will file a Second Amended Complaint ("SAC"),
striking and modifying the pleadings consistent with this Order,
within thirty (30) days of the issuance of the Order.
Additionally, the Court sua sponte questions whether the
Plaintiff's claim under Massachusetts law alone is sufficient to
meet CAFA's amount in controversy requirement and, thus, whether
subject matter jurisdiction exists in this case. The Plaintiff's
SAC must include updated allegations concerning the Court's subject
matter jurisdiction to reflect the dismissal of her New York law
and unjust enrichment claims. The claim under Massachusetts law may
proceed only if the Plaintiff sufficiently alleges the
jurisdictional amount.
Moreover, within sixty (60) days of the issuance of this Order, the
parties will show cause in a letter of up to five pages as to: (1)
whether the Court retains subject matter jurisdiction over this
action; and (2) if subject matter jurisdiction exists, why the
Court should not transfer this case to the District of
Massachusetts under 28 U.S.C. Section 1404(a) in light of the
Court's dismissal of the Plaintiff's New York law claims.
A full-text copy of the Court's Memorandum & Order dated Jan. 29,
2024, is available at http://tinyurl.com/yc6upr9nfrom
PacerMonitor.com.
COFFEE DELUXE: Fails to Pay Proper Wages, Nivelo Alleges
--------------------------------------------------------
WILMER PATRICIO NIVELO; and KATHERINE PATINO, individually and on
behalf of all others similarly situated, Plaintiffs v. COFFEE
DELUXE & DELI LLC; STAR COFFEE SHOP & DELI, INC.; MARIA MOROCHO;
VICTOR MOROCHO; and WILLIAM MOROCHO, Defendants, Case No.
2:24-cv-00917 (D.N.J., Feb. 16, 2024) seeks to recover from the
Defendants unpaid wages and overtime compensation, interest,
liquidated damages, attorneys' fees, and costs under the Fair Labor
Standards Act.
Plaintiffs Nivelo and Patino were employed by the Defendants as a
cook and a waitress, respctively.
COFFEE DELUXE & DELI LLC owns and operates a restaurant in West
Orange, New Jersey. [BN]
The Plaintiff is represented by:
Jonathan Trinidad-Lira, Esq.
KATZ MELINGER PLLC
370 Lexington Avenue, Suite 1512
New York, NY 10017
Telephone: (212) 460-0047
Facsimile: (212) 428-6811
Email: kymorales@katzmelinger.com
COLTER ENERGY: Joyce's Bid to Compel Discovery Responses Granted
----------------------------------------------------------------
Judge David Stewart Cercone of the U.S. District Court for the
Western District of Pennsylvania grants the Plaintiff's motion to
compel discovery responses in the lawsuit styled BRYAN JOYCE,
Individually and for others similarly situated, Plaintiff v. COLTER
ENERGY SERVICES USA, INC., Defendant, Case No. 2:22-cv-01367-DSC
(W.D. Pa.).
The Plaintiff commenced this class action on behalf of himself and
all others similarly situated seeking redress under the
Pennsylvania Minimum Wage Act and Pennsylvania's Wage Payment and
Collection Law. Currently before the Court is the Plaintiff's
motion to compel the Defendant to provide supplemental discovery
responses that pertain to all putative class members.
Although a class has not been certified, the Plaintiff requested
discovery materials relating to all "class members." The Defendant
objected on the basis that no class has been certified and, thus,
such discovery is premature. The parties have been unable to
overcome their impasse, and the Court is called upon to determine
the appropriate scope of discovery at this juncture.
Judge Cercone finds that the Defendant is correct in its assertion
that a class has not been certified. Indeed, the Court has not
reached the class certification stage of the litigation. But this
is not because the Plaintiff has inappropriately expanded the scope
of discovery; instead, it is because, in the Court's view, the
discovery needed to adjudicate the class certification inquiry
appropriately has not yet been completed.
To begin, the Defendant limited its discovery responses to a group
of 30 employees that shared the same job assignments as the
Plaintiff, that is those who held the position of a field
supervisor. In doing so, the Defendant produced responses covering
similar day and night supervisors that included pay records, time
record summaries and worker activity logs. It deems this limited
response to be adequate. The Plaintiff disagrees.
Judge Cercone finds that the Defendant's production of documents
and information limited to field supervisors is deficient. The
Defendant does not have the unilateral prerogative to determine the
scope of discovery. Instead, Judge Cercone points out, it is well
established that the scope and conduct of discovery are proper
matters committed to the sound discretion of the trial court. And
in this regard, Rule 26 of the Federal Rules of Civil Procedure
permits discovery on "any nonprivileged matter that is relevant to
any party's claim or defense and proportional to the needs of the
case."
Here, the Court has not entered an order limiting the class, nor
has the Court limited the class to specific positions, such as
field supervisors. Judge Cercone says there is a good reason for
this: the allegations forming the Plaintiff's Pennsylvania Minimum
Wage Act claim are not limited to or otherwise cabined by the
Plaintiff's position as a "field supervisor."
To the contrary, through this lawsuit, the Plaintiff seeks to
represent "[a]ll current and former Hourly-Paid employees of Colter
Energy employed in or based out of the Commonwealth of Pennsylvania
during the three years preceding August 30, 2022 (the "Class
Members")."
The Defendant accurately notes that the Plaintiff's complaint avers
that he was a "Field Supervisor" and that it employs other Field
Supervisors, but the referenced averments highlight the Defendant's
employment of "other hourly workers." Thus, the inquiry as to
hourly employees is not limited to only those employed in distinct
roles, Judge Cercone explains.
Moreover, Judge Cercone says, the allegations forming the substance
of the Plaintiff's wage and hour violations are not limited to
distinct activities performed by field supervisors. To the
contrary, they include activities that can be performed by other
hourly employees without regard to job classifications, such as
driving and transporting other employees from hotels to their job
sites; driving to and from the worker's job site; and attending and
participating in the Defendant's mandatory and online training
courses.
Thus, Judge Cercone opines, the gravamen of the complaint is not
the misclassification of field supervisors as exempt; it is the
work activities assertedly performed by hourly employees at the
insistence of defendant but then treated as non-compensable,
off-the-clock activities.
At this juncture, Judge Cercone says, each of the non-compensable,
off-the-clock activities performed by the Plaintiff and the
performance of any of those activities by any other hourly employee
supplies the relevancy for the initial round of discovery, with
leeway for expansion in follow-up discovery. In other words, the
Defendant's unilateral decision to limit its responses to documents
and/or information to only the information pertaining to the
Plaintiff and/or the activities only performed by other field
supervisors (and similar self-imposed limitations) will not be
countenanced.
By limiting discovery responses in this fashion, Judge Cercone says
the Defendant is proceeding as if it possesses the authority to
determine class certification. It does not have that prerogative,
Judge Cercone points out. Consequently, the Defendant's efforts to
impose such limitations into the scope of discovery will be
overruled and the Defendant will be required to comply with the
discovery requests, accordingly.
Accordingly, the Court does not foreclose the Defendant's ability
to establish sufficient protocols (with the assistance of the
Plaintiff's counsel) that will permit the production of statistical
sampling that the parties and the Court can treat as a reliable,
representative sampling of the hourly workers and/or any subgroup
of those workers.
The Defendant also objected to 31 discovery requests on the ground
that such requests were "unduly burdensome." However, in most of
these responses, Judge Cercone finds the Defendant does not explain
how the request imposes an undue burden. Additionally, the
Defendant asserted that producing documents, which it is legally
required to maintain, also is unduly burdensome.
Judge Cercone holds that the Defendant's objections on these
grounds will be overruled. Courts have generally look
disapprovingly at responses stating that an inquiry is "overly
broad," "unduly burdensome," "vague," "ambiguous," "oppressive" or
"irrelevant" unless the party adequately has explained its
reasoning for that designation. Instead of blanket statements, the
party resisting discovery must show specifically how each
interrogatory is not relevant or how each inquiry is overly
burdensome.
Judge Cercone finds that the Defendant's objections based on
burdensomeness do not meet the legal standard; nor are they
persuasive. The mere statement that a response is unduly burdensome
is not adequate. The Court also has difficulty understanding how
producing documents that the Defendant legally is required to
maintain under Department of Labor regulation can be unduly
burdensome. It follows that the Defendant's burdensome objections
are unavailing. Accordingly, it will be ordered to produce the
requested payroll documents and employment information.
Another area in dispute is the Defendant's invocation of privilege.
The Defendant has stated in response to some interrogatories and
requests for production that the Plaintiff seeks information or
documents protected by the attorney-client privilege or the work
product doctrine. In response, the Plaintiff contends that these
objections are generic and that the information sought is not
privileged, but relevant and discoverable.
Although they both operate to protect information from discovery,
the work-product doctrine and the attorney-client privilege serve
different purposes, Judge Cercone opines, citing In re Chevron
Corp., 633 F.3d 153, 164 (3d Cir. 2011). The party resisting
discovery bears the burden of demonstrating the applicability of
attorney-client privilege or work-product privilege as a bar to
discovery.
A review of the Defendant's responses to the discovery requests
where it has invoked the attorney-client privilege or work-product
doctrine demonstrates that it has not sufficiently met it
obligations to invoke the privileges, Judge Cercone holds. On
numerous occasions, the Defendant objects to the Plaintiff's
requests because the information is protected by the
attorney-client, work-product or other privilege. However, it does
not describe the documents or information in a manner that will
permit the Plaintiff and the Court to assess the claim.
Simply stating that the documents are privileged information and,
therefore, not discoverable will not suffice, Judge Cercone points
out, among other things. Further, it does not appear that the
Defendant has provided a sufficiently detailed privilege log for
those documents that it declined to produce.
In light of this, and subject to any further agreement between
counsel, Judge Cercone holds that the Defendant will be required to
either produce the documents as requested or produce a privilege
log with sufficient detail to permit the Court and the Plaintiff's
counsel to assess the propriety of any invocation of privilege.
Similarly, Judge Cercone holds that the Defendant must comply with
Rule 34(b)(2)(C). Consequently, this aspect of the Plaintiff's
motion will be granted as well.
Finally, the Defendant objects to the Plaintiff's requests seeking
to identify all putative class members who worked for or on behalf
of the Defendant during the limitations period.
Judge Cercone holds that the Defendant's reliance on the quoted
language in Oppenheimer Fund, Inc. v. Sanders is misplaced. This
action is distinguishable from Oppenheimer's explicit ruling on
obtaining the information for notice purposes only and is one of
those instances where the information is relevant to the central
issues under Rule 23 of the Federal Rules of Civil Procedure.
Although it has been observed that courts in other jurisdictions
have reached a different result, the courts in this jurisdiction
consistently have held that pre-certification discovery of the
names and contact information of other putative class members is
appropriate, Judge Cercone explains. In fact, it is quite germane
for the Plaintiff to receive the names and addresses of the
putative class members even though the class has not been
certified, because it will reasonably lead to information bearing
on the issues of numerosity, typicality and commonality.
Thus, the Court will follow the consensus in this jurisdiction and
grant the Plaintiff's motion to compel this basic information.
For the reasons set forth here, Judge Cercone rules that the
Plaintiff's motion to compel discovery will be granted, and the
Defendant will be directed to revise its discovery responses and
comply with all additional discovery in a manner consistent with
the rulings set forth in this Memorandum Opinion.
A full-text copy of the Court's Memorandum Opinion dated Jan. 29,
2024, is available at http://tinyurl.com/4tye5jrefrom
PacerMonitor.com.
Goodrich & Geist, P.C., Joshua P. Geist --
josh@goodrichandgeist.com -- Josephson Dunlap Law Firm, Michael A.
Josephson -- mjosephson@mybackwages.com -- Alyssa White --
awhite@mybackwages.com -- Andrew W. Dunlap --
adunlap@mybackwages.com -- for the Plaintiff.
Kutak Rock LLP -- Michael McDonnell, III --
michael.mcdonnell@kutakrock.com -- Diana Fields --
diana.fields@kutakrock.com -- Gillian O'Hara --
gigi.ohara@kutakrock.com -- for the Defendant.
COMMUNITY HEALTH: Wells Sues to Recover Overtime Compensation
-------------------------------------------------------------
Lisa Wells, individually and on behalf of all others similarly
situated v. COMMUNITY HEALTH SYSTEMS, INC. and METRO KNOXVILLE HMA,
LLC d/b/a TURKEY CREEK MEDICAL CENTER, Case No. 3:24-cv-00125 (M.D.
Tenn., Feb. 2, 2024), is brought to recover overtime compensation,
liquidated damages, and attorneys' fees and costs pursuant to the
provisions of the Fair Labor Standards Act of 1938 ("FLSA") and
Tennessee common law.
Although Plaintiffs and the Putative Class Members have routinely
worked in excess of 40 hours per workweek, Plaintiffs and the
Putative Class Members have not been paid overtime of at least one
and one-half their regular rates for all hours worked in excess of
40 hours per workweek. During the relevant time period(s),
Defendants knowingly and deliberately failed to compensate
Plaintiffs and the Putative Class Members for all hours worked each
workweek and the proper amount of overtime on a routine and regular
basis during the relevant time periods.
Specifically, Defendants' regular practice--including during weeks
when Plaintiffs and the Putative Class Members worked more than 40
hours (not counting hours worked "off-the-clock")--was (and is) to
automatically deduct a 30-minute meal-period from Plaintiff and the
Putative Class Members' daily time even though they regularly
worked (and continue to work) "off-the-clock" through their
meal-period breaks.
The effect of Defendants' practices were (and are) that all time
worked by Plaintiffs and the Putative Class Members was not (and is
not) counted and paid; thus, Defendants have failed to properly
compensate Plaintiffs and the Putative Class Members for all of
their hours worked and resultingly failed to properly calculate
Plaintiffs and the Putative Class Members' overtime under the FLSA
and Tennessee state law, says the complaint.
The Plaintiff was employed by the Defendants in Knoxville,
Tennessee at Turkey Creek Medical Center from October 2012 until
October 2020.
The Defendants are a unified health care system operating the
Turkey Creek Medical Center under the assumed name of Tennova
Healthcare.[BN]
The Plaintiff is represented by:
Michael A. Josephson, Esq.
Andrew W. Dunlap, Esq.
William M. Hogg, Esq.
JOSEPHSON DUNLAP LAW FIRM
11 Greenway Plaza, Suite 3050
Houston, TX 77046
Phone: 713-352-1100
Facsimile: 713-352-3300
Email: mjosephson@mybackwages.com
adunlap@mybackwages.com
whogg@mybackwages.com
- and -
Clif Alexander, Esq.
Austin W. Anderson, Esq.
Blayne E. Fisher, Esq.
Lauren Braddy, Esq.
ANDERSON ALEXANDER, PLLC
819 N. Shoreline Blvd., 6th Floor
Corpus Christi, TX 78401
Phone: (361) 452-1279
Facsimile: (361) 452-1284
Email: clif@a2xlaw.com
austin@a2xlaw.com
blayne@a2xlaw.com
lauren@a2xlaw.com
- and -
Melody Fowler-Green, Esq.
N. Chase Teeples, Esq.
YEZBAK LAW OFFICES PLLC
P.O. Box 159033
Nashville, TN 37215
Phone: (615) 250-2000
Facsimile: (615) 250-2020
Email: mel@yezbaklaw.com
teeples@yezbaklaw.com
The Defendants are represented by:
Charles J. Mataya
John P. Rodgers
Matthew C. Lonergan
J. Craig Oliver
BRADLEY ARANT BOULT CUMMINGS LLP
ONE 22 ONE
1221 Broadway, Suite 2400
Nashville, TN 37203
Phone: (615) 244-2582
Email: cmataya@bradley.com
jrodgers@bradley.com
mlonergan@bradley.com
coliver@bradley.com
CONSTRUCTION SERVICING: Gandol Suit Removed to S.D. Florida
-----------------------------------------------------------
The case captioned as Josefina Gandol, and all others similarly
situated v. Construction Servicing Center, Inc. doing business as:
Sunuso Energy, GoodLeap, LLC, Case No. 2023-CA-026467 was removed
from the 11th Judicial Circuit in and for Miami-Dade County, to the
U.S. District Court for the Southern District of Florida on Dec.
29, 2023.
The District Court Clerk assigned Case No. 1:23-cv-24924-CMA to the
proceeding.
The nature of suit is stated as Other Contract.
Construction Servicing Center, Inc.
doing business as Sunuso Energy -- https://www.sunusoenergy.com/ --
is a world-class organization of passionate associates committed to
providing the most outstanding Eco-friendly.[BN]
The Plaintiff is represented by:
Bryant Houston Dunivan, Jr., Esq.
THE CONSUMER PROTECTION ATTORNEY, PA
301 W. Platt St.
Tampa, FL 33606
Phone: (813) 252-0239
Email: bryant@theconsumerprotectionattorney.com
The Defendant is represented by:
Terrance Wayne Anderson, Jr., Esq.
NELSON MULLINS
1905 NW Corporate Boulevard, Suite 310
Boca Raton, FL 33431
Phone: (561) 483-7000
Email: tw.anderson@nelsonmullins.com
- and -
Sophie Madeleine Labarge, Esq.
NELSON MULLINS
100 SE 3rd Ave., Suite 2700
Fort Lauderdale, FL 33394
Phone: (954) 745-5284
Email: sophie.labarge@nelsonmullins.com
CONTINENTAL AG: Faces Novak Suit Over Tire Price Monopoly
---------------------------------------------------------
FRANK NOVAK, individually and on behalf of all others similarly
situated, Plaintiff v. CONTINENTAL AKTIENGESELLSCHAFT; CONTINENTAL
TIRE THE AMERICAS, LLC; COMPAGNIE GENERALE DES ETABLISSEMENTS;
MICHELIN NORTH AMERICA, INC.; NOKIAN TYRES PLC; NOKIAN TYRES INC.;
NOKIAN TYRES U.S. OPERATIONS LLC; THE GOODYEAR TIRE & RUBBER
COMPANY; PIRELLI & C. S.P.A.; PIRELLI TIRE LLC; BRIDGESTONE
CORPORATION; BRIDGESTONE AMERICAS, INC.; and DOES 1-100,
Defendants, Case 1:24-cv-01202 (S.D.N.Y., Feb. 16, 2024) alleges
violation of the Sherman Act.
The Plaintiff alleges in the complaint that the Defendants are
engaged in an unlawful agreement, as the largest tire manufacturers
in the US and the world, to artificially increase and fix the
prices of new replacement tires for passenger cars, vans, trucks
and buses ("Tires") sold in the US. Defendants coordinated price
increases, including through public communications.
The Defendants' unlawful agreement to fix prices of Tires is
supported by: (i) Defendants' sudden and dramatic parallel price
increases, which absent a conspiracy to fix prices, ran contrary to
their economic interests; (ii) EC dawn raids of Defendants, (iii)
the high level of market concentration in the Tire market; (iv)
significant barriers to entry, (v) lack of economic substitutes for
Tires, (vi) standardization of Tires with a high degree of
interchangeability; and (vii) the myriad opportunities that
employees of Defendants had to conspire with one another to fix
prices of Tires, coupled with their motivation to achieve such an
unlawful end, the suit contends.
CONTINENTAL AKTIENGESELLSCHAFT manufactures tires, automotive
parts, and industrial products. The Company produces passenger
cars, trucks, commercial vehicles, bicycle tires, braking systems,
shock absorbers, hoses, drive belts, conveyor belting, transmission
products, and sealing systems. [BN]
The Plaintiff is represented by:
Thomas H. Burt, Esq.
WOLF HALDENSTEIN ADLER
FREEMAN & HERZ LLP
270 Madison Avenue
New York, NY 10016
Telephone: (212) 545-4600
Email: burt@whafh.com
- and -
Carl V. Malmstrom, Esq.
WOLF HALDENSTEIN ADLER
FREEMAN & HERZ LLC
111 W. Jackson Blvd., Suite 1700
Chicago, IL 60604
Telephone: (312) 984-0000
Facsimile: (212) 686-0114
Email: malmstrom@whafh.com
- and -
Justin S. Nematzadeh, Esq.
NEMATZADEH PLLC
101 Avenue of the Americas, Suite 909
New York, NY 10013
Telephone: (646) 799-6729
Email: jsn@nematlawyers.com
- and -
Fred T. Isquith, Sr., Esq.
ISQUITH LAW PLLC
103 East 84th Street
New York, NY 10028
Telephone: (718) 775-6478
Email: isquithlaw@gmail.com
CORTEVA INC: Bid for Protective Order Granted in Cockerill Suit
---------------------------------------------------------------
In the class action lawsuit captioned as ROBERT F. COCKERILL et
al., v. CORTEVA, INC. et al., Case No. 2:21-cv-03966-MMB (E.D.
Pa.), the Hon. Judge Michael M. Baylson entered an order granting
the Defendants motion for protective order without prejudice, at
this time, pending the Third Circuit's ruling on the class
certification appeal.
The Court will also extend the discovery period after the Third
Circuit's ruling.
Corteva is a major American agricultural chemical and seed
company.
A copy of the Court's order dated Jan. 26, 2024 is available from
PacerMonitor.com at https://urlcurt.com/u?l=XTFCOY at no extra
charge.[CC]
COSTCO WHOLESALE: Castillo May File Unredacted Complaint Under Seal
-------------------------------------------------------------------
Judge John H. Chun of the U.S. District Court for the Western
District of Washington, Seattle, grants the Plaintiffs' motion to
seal portions of the consolidated class action complaint in the
lawsuit titled JESUS CASTILLO, MARK KNOWLES, ALEX RODRIGUEZ,
NICHOLAS JAMES THROLSON, R.S., KIMBERLY SCOTT, ROBIN WARBEY, DANIEL
SMITH, MATT GROVES, VERN DEOCHOA, TYRONE WASHINGTON, individually,
and on behalf of those similarly situated, Plaintiffs v. COSTCO
WHOLESALE CORPORATION, a Washington corporation, Defendant, Case
No. 2:23-cv-01548-JHC (W.D. Wash.).
The Court grants the motion and directs that the unredacted
Consolidated Complaint be filed under seal.
A full-text copy of the Court's Order dated Jan. 29, 2024, is
available at http://tinyurl.com/bdf66rzzfrom PacerMonitor.com.
DIRECT ENERGY: Dickson Seeks to Strike Class Cert Supplemental Memo
-------------------------------------------------------------------
In the class action lawsuit captioned as MATTHEW DICKSON, on behalf
of himself and others similarly situated, v. DIRECT ENERGY, LP, et
al., Case No. 5:18-cv-00182-JRA (N.D. Ohio), the Plaintiff Matthew
Dickson moves the Court to strike Direct Energy's Second
Supplemental Memorandum in Opposition to Class Certification, filed
on Jan. 19, 2024.
As Defendant acknowledged in its filing, the parties recently
submitted a Joint Notice Requesting Lift of Stay and Entry of
Pretrial Schedule on Jan. 12, 2024, in which the Plaintiff asked
the Court to rule on Plaintiff's pending Motion for Class
Certification without further briefing, and Direct Energy proposed
Supplemental Briefing on Class Certification.
Rather than waiting for a Court ruling on the Parties' competing
proposals, Direct Energy unilaterally granted itself leave to file
a second supplemental opposition.
Direct Energy is a North American retailer of energy and energy
services.
A copy of the Plaintiff's motion dated Jan. 26, 2024 is available
from PacerMonitor.com at https://urlcurt.com/u?l=gtVqXW at no extra
charge.[CC]
The Plaintiff is represented by:
Brian K. Murphy, Esq.
Jonathan P. Misny, Esq.
MURRAY MURPHY MOUL + BASIL LLP
1114 Dublin Road
Columbus, OH 43215
Telephone: (614) 488-0400
Facsimile: (614) 488-0401
E-mail: murphy@mmmb.com
misny@mmmb.com
- and -
Edward A. Broderick, Esq.
BRODERICK LAW P.C.
99 High Street, Suite 304
Boston, MA 02110
Telephone: (617) 738-7080
Facsimile: (617) 830-0327
E-mail: ted@broderick-law.com
- and -
Anthony I. Paronich, Esq.
PARONICH LAW, P.C.
350 Lincoln Street, Suite 2400
Hingham, MA 02043
Telephone: (508) 221-1510
E-mail: anthony@paronichlaw.com
- and -
Matthew P. McCue, Esq.
THE LAW OFFICE OF MATTHEW P. MCCUE
1 South Avenue, Suite 3
Natick, MA 01760
Telephone: (508) 655-1415
Facsimile: (508) 319-3077
E-mail: mmccue@massattorneys.net
- and -
Samuel J. Strauss, Esq.
TURKE & STRAUSS LLP
936 N. 34th Street, Suite 300
Seattle, WA 98103
Telephone: (608) 237-1774
Facsimile: (608) 509-4423
E-mail: sam@turkestrauss.com
DOORDASH INC: Omnity Sues Over Illegal Food Service Charges
-----------------------------------------------------------
OMNITY CONSULTING, LLC d/b/a HARLEM SHAKE (WEST 124TH STREET),
individually and on behalf of all others similarly situated,
Plaintiff v. DOORDASH, INC., Defendant, Case No. 3:24-cv-00959
(N.D. Cal., Feb. 16, 2024) alleges that the Defendant has violated
the Administrative Code of City of New York by charging food
service establishments, like Plaintiff, unlawful and excessive
third-party food delivery service fees.
The Plaintiff alleges in the complaint that the Defendant has
intentionally and repeatedly charged the Plaintiff and other
members of the putative Class, fees in excess of those permitted
under the governing regulations. By virtue of the Defendant's
unlawful conduct and practices described herein, Plaintiff and the
proposed Class have suffered injury and damages.
DOORDASH, INC. provides restaurant food delivery services. The
Company develops technology to connect customers with merchants
through an on-demand food delivery application. [BN]
The Plaintiff is represented by:
Jenelle Welling, Esq.
ROSSI DOMINGUE LLP
3201 Danville Blvd., Suite 172
Alamo, CA 94507
Telephone: (408) 495-3900
Email: jenelle@rdlaw.net
DXC TECHNOLOGY: Shareholder Suit Over 2017 Stock Offering Ongoing
-----------------------------------------------------------------
DXC Technology Company disclosed in its Form 10-Q for the quarterly
period ended March 31, 2023, filed with the Securities and Exchange
Commission on May 18, 2023, that with regards to an August 20, 2019
a purported class action lawsuit filed in the Superior Court of the
State of California, County of Santa Clara, against the company,
directors and its former officer. In March 2023, the United States
District Court for the Northern District of California entered a
scheduling order setting a trial date for September 2025. A hearing
on the plaintiffs' motion for class certification is scheduled for
March 2024.
Said action asserts claims under Sections 11, 12 and 15 of the
Securities Act of 1933, as amended, and is premised on allegedly
false and/or misleading statements, and alleged non-disclosure of
material facts, regarding the company's prospects and expected
performance. The putative class of plaintiffs includes all persons
who acquired shares of the company's common stock pursuant to the
offering documents filed with the Securities and Exchange
Commission in connection with an April 2017 transaction that formed
DXC.
In January 2023, said court issued an order denying the company's
motion to dismiss a second amended complaint that the plaintiffs
filed in September 2022, which the company moved to dismiss.
The State of California action had been stayed pending the outcome
of the substantially similar federal action filed in. The federal
action was dismissed with prejudice in December 2021. Thereafter,
the state court lifted the stay and entered an order permitting
additional briefing by the parties. In March 2022, plaintiffs filed
an amended complaint, which the company moved to dismiss. In August
2022, the court granted the company's motion to dismiss, but
permitted Plaintiffs to amend and refile their complaint. In March
2023, the Court entered a scheduling order setting a trial date for
September 2025. The case is now in discovery.
DXC Technology Company helps global companies run their mission
critical systems and operations while modernizing IT, optimizing
data architectures, and ensuring security and scalability across
public, private and hybrid clouds.
FIDELITY NATIONAL: Peralta Files Suit in C.D. California
--------------------------------------------------------
A class action lawsuit has been filed against Fidelity National
Financial Inc., et al. The case is styled as Jose Peralta, Jr.,
individually and on behalf of all others Similarly Situated v.
Fidelity National Financial Inc., LoanCare LLC, Does 1-10, Case No.
2:23-cv-10907-MEMF-JC (C.D. Cal., Dec 30, 2023).
The nature of suit is stated as Other Statutory Actions.
Fidelity National Financial, Inc. -- http://www.fnf.com/-- a
Fortune 500 company, is an American provider of title insurance and
settlement services to the real estate and mortgage
industries.[BN]
The Plaintiff is represented by:
Jason M. Wucetich, Esq.
Dimitrios Vasiliou Korovilas, Esq.
WUCETICH AND KOROVILAS LLP
222 North Pacific Coast Highway Suite 2000
El Segundo, CA 90245
Phone: (310) 335-2001
Fax: (310) 364-5201
Email: jason@wukolaw.com
dimitri@wukolaw.com
FLORIDA HOME-IMPROVEMENT: Kennedy Files TCPA Suit in M.D. Florida
-----------------------------------------------------------------
A class action lawsuit has been filed against Florida
Home-Improvement Associates, Inc. The case is styled as Carol
Kennedy, individually and on behalf of others similarly situated v.
Florida Home-Improvement Associates, Inc. d/b/a FHIA Remodeling,
Case No. 6:24-cv-00246 (M.D. Fla., Feb. 2, 2024).
The lawsuit is brought over alleged violation of the Telephone
Consumer Protection Act for Restrictions of Use of Telephone
Equipment.
Florida Home-Improvement Associates, Inc. doing business as FHIA
Remodeling -- https://fhiaremodeling.com/ -- is a remodeler in
Hollywood, Florida.[BN]
The Plaintiff is represented by:
Ryan Lee McBride, Esq.
KAZEROUNI LAW GROUP APC
2221 Camino Del Rio S., Suite 101
San Diego, CA 92108
Phone: (800) 400-6808
Email: ryan@kazlg.com
FUTURE FINTECH: Bragar Eagel Reminds of March 18 Deadline
---------------------------------------------------------
Bragar Eagel & Squire, P.C., a nationally recognized shareholder
rights law firm, reminds investors that class actions have been
commenced on behalf of stockholders of Future FinTech Group Inc.
(NASDAQ: FTFT), AlloVir, Inc. (NASDAQ: ALVR), GrafTech
International Ltd. (NYSE: EAF), and Maplebear, Inc. d/b/a Instacart
(NASDAQ: CART). Stockholders have until the deadlines below to
petition the court to serve as lead plaintiff. Additional
information about each case can be found at the link provided.
Future FinTech Group Inc. (NASDAQ: FTFT)
Class Period: March 10, 2020 - January 11, 2024
Lead Plaintiff Deadline: March 18, 2024
According to the lawsuit, defendants throughout the Class Period
made materially false and/or misleading statements and/or failed to
disclose that: (1) Defendant Shanchun Huang manipulated the price
of Future FinTech stock; (2) Defendant Huang and Future FinTech
lied to the Securities and Exchange Commission about the nature of
Defendant Huang's ownership of Future FinTech stock; (3) Future
FinTech understated its legal risk; (4) Future FinTech did not
disclose the unlawful measures Defendant Huang took to prop up the
price of its stock; and (5) as a result, Defendants' statements
about its business, operations, and prospects, were materially
false and misleading and/or lacked a reasonable basis at all
relevant times.
For more information on the Future FinTech class action go to:
https://bespc.com/cases/FTFT
AlloVir, Inc. (NASDAQ: ALVR)
Class Period: March 22, 2022 - December 21, 2023
Lead Plaintiff Deadline: March 19, 2024
The complaint alleges that, throughout the Class Period, Defendants
made materially false and misleading statements regarding the
Company's business, operations, and prospects. Specifically,
Defendants made false and/or misleading statements and/or failed to
disclose that: (i) the posoleucel Phase 3 Studies were unlikely to
meet their primary endpoints; (ii) as a result, it was likely that
the Company would ultimately discontinue the posoleucel Phase 3
studies; (iii) accordingly, AlloVir overstated the efficacy and
clinical and/or commercial prospects of posoleucel; and (iv) as a
result, the Company's public statements were materially false and
misleading at all relevant times.
On December 22, 2023, AlloVir announced that it was discontinuing
the posoleucel Phase 3 studies over efficacy concerns and stated
that it would explore strategic alternatives for the Company.
Specifically, AlloVir said it was discontinuing the posoleucel
Phase 3 studies after pre-planned analyses concluded they wouldn't
meet their primary endpoints.
On this news, AlloVir's stock price fell $1.57 per share, or
67.38%, to close at $0.76 per share on December 22, 2023.
For more information on the AlloVir class action go to:
https://bespc.com/cases/ALVR
GrafTech International Ltd. (NYSE: EAF)
Class Period: February 8, 2019 - August 3, 2023 (Common Stock
Only)
Lead Plaintiff Deadline: March 25, 2024
The GrafTech class action lawsuit alleges that defendants
throughout the Class Period made false and/or misleading statements
and/or failed to disclose that: (i) GrafTech's manufacturing
operations in Monterrey, Mexico had for decades chronically
contaminated neighboring communities with harmful carcinogenic
gasses and particulate matter; (ii) GrafTech had signed agreements
with local authorities committing itself to improving the
environmental performance of its Monterrey facility, but repeatedly
failed to honor these commitments; (iii) GrafTech had been
repeatedly warned over an approximately 30-year period regarding
its wanton disregard for the environment and health and well-being
of people near its operations in Monterrey, Mexico; (iv) GrafTech's
operations in Monterrey, Mexico were not in compliance with
applicable environmental laws and regulations; (v) GrafTech had
failed to adequately remediate the environmental problems caused by
the Monterrey facility following the 2019 administrative proceeding
conducted by the Department of Sustainable Development of the State
of Nuevo León; (vi) the government of Apodaca had sought
intervention from the State of Nuevo León authorities to curtail
and prevent the adverse environmental impacts and noncompliance
with environmental laws and regulations caused by the Monterrey
facility; (vii) GrafTech's purported cost leadership was achieved
in substantial part by failing to implement appropriate and
effective environmental safeguards at its manufacturing facility in
Monterrey, Mexico; (viii) GrafTech's capital expenditures and/or
related operational projects were woefully insufficient to
adequately address the harm that GrafTech's operations in
Monterrey, Mexico had inflicted on the environment and people
within the neighboring communities; (ix) as a result of the above,
GrafTech was acutely exposed to undisclosed material risks that
GrafTech's manufacturing operations in Monterrey, Mexico would be
severely disrupted by government action or enforcement; and (x) as
a result of the above, GrafTech was acutely exposed to undisclosed
material risks that its supplies of pin stock and graphite
electrodes would be withdrawn and/or materially diminished, thereby
materially harming GrafTech's business, operations, reputation, and
financial results.
For more information on the GrafTech class action go to:
https://bespc.com/cases/EAF
Maplebear, Inc. d/b/a Instacart (NASDAQ: CART)
Class Period: pursuant and/or traceable to the Offering Documents
issued in connection with the Company's initial public offering
conducted on or about September 19, 2023; and/or September 19, 2023
- October 1, 2023
Lead Plaintiff Deadline: March 25, 2024
Instacart provides online grocery shopping services to households
in North America. The Company sells and delivers a range of
products in the food, alcohol, consumer health, pet care, and
ready-made meals categories, in addition to others. The Company
offers its services through a mobile application and website, while
also providing software-as-a-service solutions to retailers.
On August 25, 2023, Instacart filed a registration statement on
Form S-1 with the U.S. Securities and Exchange Commission ("SEC")
in connection with the IPO, which, after several amendments, was
declared effective by the SEC on September 18, 2023 (the
"Registration Statement").
On September 19, 2023, pursuant to the Registration Statement,
Instacart's common stock began publicly trading on the Nasdaq
Global Select Market ("NASDAQ") under the ticker symbol "CART".
On September 20, 2023, Instacart filed a prospectus on Form 424B4
with the SEC in connection with the IPO, which incorporated and
formed part of the Registration Statement (the "Prospectus" and,
collectively with the Registration Statement, the "Offering
Documents").
Pursuant to the Offering Documents, Instacart and other selling
stockholders identified in the Prospectus sold 14.1 million and 7.9
million shares of the Company's common stock to the public,
respectively, at the Offering price of $30.00 per share for total
proceeds of approximately $400 million and $224 million to
Instacart and the selling stockholders, respectively, after
applicable underwriting discounts and commissions.
The complaint alleges that the Offering Documents were negligently
prepared and, as a result, contained untrue statements of material
fact or omitted to state other facts necessary to make the
statements made not misleading and were not prepared in accordance
with the rules and regulations governing their preparation. In
addition, the complaint alleges that, throughout the Class Period,
Defendants made materially false and misleading statements
regarding the Company's business, operations, and prospects.
Specifically, the Offering Documents and Defendants made false
and/or misleading statements and/or failed to disclose that: (i)
Instacart had overstated the extent to which online grocery
shopping and delivery habits among consumers were accelerating;
(ii) Instacart had downplayed the extent of the competition that it
faced in the online grocery shopping and delivery market; (iii)
accordingly, Defendants overstated the Company's post-IPO growth,
business, and financial prospects; and (iv) as a result, the
Company's public statements were materially false and misleading at
all relevant times.
On September 22, 2023, Reuters published an article noting, among
other things, that Instacart's stock price was falling after
"lukewarm analyst reports" indicated that the Company would
struggle from heavy competition. For example, the article noted
that "BTIG analyst Jake Fuller gave Instacart a 'neutral' rating
and warned that the company faces heavy competition from DoorDash
(DASH.N) and Uber Technologies (UBER.N) in the slowly expanding
market of grocery delivery."
On this news, Instacart's stock price fell $0.65 per share, or
2.12%, to close at $30.00 per share on September 22, 2023.
Then, on October 2, 2023, investment research firm Gordon Haskett
initiated coverage of Instacart with a "hold" rating, stating that
it "ha[s] doubts that online grocery delivery adoption will
continue to materially increase at a time when consumers are
becoming increasingly cautious about spending", while similarly
citing the competitive environment in the online grocery shopping
and delivery market as a headwind to the Company's business.
On this news, Instacart's stock price fell $2.73 per share, or
9.2%, to close at $26.96 per share on October 2, 2023.
As of the time the complaint was filed, Instacart's common stock
continues to trade below the $30.00 per share Offering price,
damaging investors.
For more information on the Instacart class action go to:
https://bespc.com/cases/CART
About Bragar Eagel & Squire, P.C.:
Bragar Eagel & Squire, P.C. is a nationally recognized law firm
with offices in New York, California, and South Carolina. The firm
represents individual and institutional investors in commercial,
securities, derivative, and other complex litigation in state and
federal courts across the country. For more information about the
firm, please visit www.bespc.com. Attorney advertising. Prior
results do not guarantee similar outcomes.
Contact Information:
Bragar Eagel & Squire, P.C.
Brandon Walker, Esq.
Marion Passmore, Esq.
(212) 355-4648
investigations@bespc.com
www.bespc.com [GN]
GHOST BEVERAGES: Barrales Sues Over Mislabeled Beverage Products
----------------------------------------------------------------
TINAMARIE BARRALES; and MICHAEL WILLIAMS, individually and on
behalf of all those similarly situated, Plaintiff v. GHOST
BEVERAGES LLC; and MONDELEZ INTERNATIONAL, INC., Defendants, Case
No. 1:24-cv-01185 (N.D. Ill., Feb. 12, 2024) alleges violation of
the Illinois Consumer Fraud Act, the Illinois Uniform Deceptive
Trade Practices Act, the California's Consumers Legal Remedy Act,
and the California's Unlawful Business Practices Act.
The Plaintiff alleges in the complaint that the Defendants are
using brands like Mondelez's Sour Patch Kids, Bubblicious, and
Swedish Fish brands to market to children energy drinks that are
unsafe for children.
The Plaintiffs and the Class Members purchased Ghost's Sour Patch
Kids products in reliance on the misleading advertising, which
suggested that the products were safe and appropriate for
consumption by children. But the Plaintiffs' children unfortunately
suffered adverse health effects from these products.
GHOST BEVERAGES LLC produces and sells ready-to-drink beverages
online and offers a variety of flavors, zero sugar, and no
artificial ingredients. [BN]
The Plaintiff is represented by:
Keith L. Gibson, Esq.
KEITH GIBSON LAW, P.C.
490 Pennsylvania Avenue, Suite 1
Glen Ellyn, IL 60137
Telephone: (630) 677-6745
Email: keith@keithgibsonlaw.com
- and -
Bogdan Enica, Esq.
KEITH GIBSON LAW, P.C.
66 West Flagler St., Ste. 937
Miami, FL 33130
Telephone: (305) 539-9206
Email: bogdan@keithgibsonlaw.com
GOLD BOND BUILDING: Petersen Suit Removed to N.D. California
------------------------------------------------------------
The case captioned as Michael Petersen, on behalf of himself and
all others similarly situated v. GOLD BOND BUILDING PRODUCTS, LLC,
a Limited Liability Company; and DOES 1-50, inclusive, Case No.
C23-03215 was removed from the Superior Court of the State of
California in and for the County of Contra Costa, to the U.S.
District Court for the Northern District of California on Feb. 1,
2024, and assigned Case No. 4:24-cv-00617.
The Plaintiff's Complaint contains 8 causes of action. These causes
of action are for: failure to pay all overtime wages; meal period
violations; rest period violations; failure to pay all sick time;
failure to provide accurate wage statements; waiting time
penalties; failure to reimburse for necessary business
expenditures; and violation of California Business & Professions
Code Section all in violation of the California Labor Code.[BN]
The Defendants are represented by:
Matthew M. Sonne, Esq.
Molly M. Brooks, Esq.
SHEPPARD, MULLIN, RICHTER & HAMPTON LLP
A Limited Liability Partnership
Including Professional Corporations
650 Town Center Drive, 10th Floor
Costa Mesa, CA 92626-1993
Phone: 714.513.5100
Facsimile: 714.513.5130
Email: msonne@sheppardmullin.com
mbrooks@sheppardmullin.com
GOLDMAN SACHS: Completion of Expert Discovery Extended
------------------------------------------------------
In the class action lawsuit captioned as Plaut v. The Goldman Sachs
Group, Inc., et al., Case No. 1:18-cv-12084 (S.D.N.Y., Filed Dec.
20, 2018), the Hon. Judge Vernon S. Broderick entered an order
granting letter motion for extension of time.
-- The Court adopts the parties' agreed upon extension for
completion
of expert discovery.
-- Additionally, the Court agrees with the parties' proposed
format
for the hearing/oral argument on the motion for class
certification next month.
The nature of suit states Securities / Commodities / Exchange.
Goldman is an American multinational investment bank and financial
services company.[CC]
GREP SOUTHEAST: Boukardougha Sues Over Debt Collection Practices
----------------------------------------------------------------
ABDERRAOUF BOUKARDOUGHA, individually and on behalf of all others
similarly situated, Plaintiff v. GREP SOUTHEAST, LLC D/B/A
GREYSTAR, Defendant, Case No. 191757606 (Fla. Cir., Miami-Dade
Cty., Feb. 12, 2024) seeks to stop the Defendant's unfair and
unconscionable means to collect a debt.
GREP SOUTHEAST, LLC D/B/A GREYSTAR is in the apartment building
operators business. [BN]
The Plaintiff is represented by:
Jibrael S. Hindi, Esq.
Jennifer G. Simil, Esq.
Zane C. Hedaya, Esq.
THE LAW OFFICES OF JIBRAEL S. HINDI
110 SE 6th Street, Suite 1744
Fort Lauderdale, FL 33301
Telephone: (954) 907-1136
Email: jibrael@jibraellaw.com
jen@jibraellaw.com
zane@jibraellaw.com
ILLINOIS: District Court Dismisses Tatum Suit Without Prejudice
---------------------------------------------------------------
Judge David W. Dugan of the U.S. District Court for the Southern
District of Illinois dismisses without prejudice the lawsuit
captioned BOBBY TATUM, K69478, Plaintiff v. C/O WILLIAMS,
Defendant, Case No. 3:21-cv-01697-DWD (S.D. Ill.).
Plaintiff Bobby Tatum brought this action pursuant to 42 U.S.C.
Section 1983 for alleged deprivations of his constitutional rights
while at Shawnee Correctional Center (Shawnee). The Plaintiff
alleges that on May 20, 2021, Defendant Williams conducted an
overly invasive strip search before he allowed the Plaintiff to
attend an attorney visit.
The Court reviewed the written pleadings on the exhaustion of
administrative remedies, and determined that there were genuine
disputes of material fact that warranted an evidentiary hearing.
The Court ultimately held two evidentiary hearings on Dec. 7, 2023,
and Jan. 16, 2024. After hearing from the parties and reviewing the
evidence, the Court finds that the Plaintiff failed to exhaust his
administrative remedies, so this case is dismissed in full without
prejudice.
The Plaintiff signed his complaint on Aug. 31, 2021. Upon initial
review, the present case was severed from another (Case No.
21-cv-1101-NJR), and the Plaintiff was allowed to proceed on one
claim: Claim 1: Eighth Amendment cruel and unusual punishment claim
against C/O Williams for the invasive strip search.
In the Motion for Summary Judgment, Defendant Williams argued that
the Plaintiff never submitted any grievances relevant to the claim
presented in this lawsuit. In response, the Plaintiff argued that
he attempted to submit a grievance on May 21, 2021, but he never
got a response. After waiting at least 60 days for a response, he
corresponded with the Administrative Review Board (ARB) about his
lost grievance on Aug. 20, 2021.
The Plaintiff argued that, per the Shawnee Offender Manual, sending
a request slip or grievance to Springfield was sufficient for
exhaustion. The Court found that, on paper, it could not resolve
the dispute between the parties about the potential existence of
the May 21, 2021 grievance. The matter was set for an evidentiary
hearing, and the Plaintiff sought witnesses to testify on his
behalf.
The Court reviewed the Plaintiff's evidence concerning his proposed
witnesses and ultimately determined that only one of the three
witnesses—Dontrell Logan—had testimony that would be relevant
to the material dispute about exhaustion.
Based on this finding, the Court issued a video writ to secure
Logan's appearance for the evidentiary hearing. On the day of the
hearing, the Court was informed that Logan was unavailable because
he was away from the prison on an emergency medical writ. Given
Logan's unavailability, the Court took the testimony of the other
available witnesses (the Plaintiff, and Kimberly Martin) and it
left the record open to take further evidence from Logan.
Between the first hearing on Dec. 7, 2023, and the second hearing
on Jan. 16, 2024, the Plaintiff filed two motions to compel
judgment. He appended an excerpt of the Shawnee Offender Manual to
the first motion, which contained information on how an inmate
could report a sexual assault. In the second motion, he expressed
concern that Logan's testimony had been tainted.
On Jan. 16, 2024, Logan was present in the witness waiting room,
but the Plaintiff confirmed on the record that he did not wish to
call Logan. As such, the Court closed the evidence and heard final
statements from the parties.
The Plaintiff was called by defense counsel at the evidentiary
hearing pursuant to Pavey v. Conley, 544 F.3d 739, 740 (7th Cir.
2008), and he testified on his own behalf. He testified that he
filed a grievance at Shawnee on May 21, 2021, but after filing that
grievance, he did nothing at the facility level to follow-up on it.
He filed the grievance by placing it in the locked box on the wall
of his housing unit. He testified that he makes handwritten copies
of everything that he drafts at the prison, but he also admitted
that he made no handwritten copy of the May 2021 grievance.
The Plaintiff explained that he became uneasy about the situation
at the prison, so rather than inquire further, he filed a grievance
directly with the Administrative Review Board (ARB) in August of
2021. He admitted that he did not get a response from the ARB to
his grievance until Sept. 7, 2021, after he had filed the lawsuit
from which this case was severed (Case No. 21-cv-1101).
Although the response from the ARB provided steps that he could
take with regards to his claim at Shawnee, the Plaintiff never
filed anything further at Shawnee about this incident.
The Plaintiff's grievance that he transmitted to the ARB, and the
ARB's response, were both provided as exhibits to the original
summary judgment motion. In the transmission to the ARB, the
Plaintiff complained about missing grievances from 2019 and 2020
concerning the conditions of confinement, and he also complained
that he had filed a grievance about the May 20, 2021, strip search
by C/O Williams, but he had not gotten any response. He described
the search as "naked XXX rated strip searchs in which I felt
violation," by C/O Williams. He indicated he believed his grievance
officer had not processed his grievance about this issue.
The ARB received this grievance on Sept. 3, 2021, and responded on
Sept. 8, 2021, with a "return of grievance" form. On the form, the
reviewing official checked boxes for additional information. Boxes
were checked to provide the original grievance and counselor's
response, as well as the grievance officer and CAO's responses, if
timely. The official also checked a box and indicated the Plaintiff
should contact his counselor or Field Services regarding prior
grievances. In closing, the official indicated all grievances
received by the ARB had been answered.
At the Pavey hearing, the Defendant also called Kimberly Johnson,
the grievance office supervisor at Shawnee. Ms. Johnson testified
that she was previously a grievance officer at Shawnee until April
of 2023 when she was promoted to supervisor. She described the
grievance process with great detail. Grievances at Shawnee and in
the IDOC go through three levels of review: (1) counselor review;
(2) grievance officer review; and (3) ARB review.
At Shawnee a grievance concerning a sexual assault or a PREA
(prison rape elimination act) issue goes straight to the second
level of review (grievance officer review). An inmate may also go
straight to the third level of review with the ARB for claims
about: issues at other prisons (other than personal property or
medical care); the forced administration of psychotropic
medication; or issues pertaining to protective custody.
Each time that a grievance is received at Shawnee a grievance is
logged and a "champs" receipt is generated. The receipt is
transmitted to the inmate so that he is aware his grievance has
been received. The grievance office has an office coordinator whose
sole responsibility is to keep logs of grievances and to generate
receipts. The grievance office can receive upwards of 300
grievances per month. They endeavor to process grievances within 60
days, but slow downs can occur due to extenuating circumstances.
Ms. Johnson testified that specific to the Plaintiff, the Shawnee
log of his grievances did not reflect any submissions in May of
2021. The log that Ms. Johnson testified to was submitted in
support of summary judgment. It did not reflect any grievance
received in May of 2021, but it did reflect other grievances that
were processed thru all levels of review at the prison both in 2021
and in years before and after.
On summary judgment, the Defendants also submitted the Plaintiff's
cumulative counseling summary, which tracks the receipt of
grievances, and inquiries by an offender, among other things. The
cumulative counseling log does not reflect any grievance in May of
2021, nor does it reflect any inquiries by the Plaintiff about the
status of any such grievance.
On cross examination, Ms. Johnson agreed that there is no time
limit imposed on grievances about a PREA incident. She also stated
that per Shawnee's inmate manual, PREA claims may be transmitted
directly to Springfield. An excerpt of the Shawnee manual that the
Plaintiff submitted indicates that to report sexual abuse, an
inmate may: 1) talk to anyone they feel comfortable with; 2) send a
note, request slip, or grievance via facility mail; 3) report the
incident to the PREA hotline; or, 4) write to the IDOC at 1301
Concordia Court, Springfield, IL 62794-9277.
As an inmate in the Illinois Department of Corrections (IDOC), the
Plaintiff must follow the grievance process outlined in the
Illinois Administrative Code. Under IDOC's procedure, an inmate
initiates a grievance with his counselor, and he may then submit
his grievance to a grievance officer at his facility, and to the
CAO at his facility.
Generally, grievances must be filed within 60 days after the
discovery of the incident grieved. However, a grievance concerning
sexual abuse shall be sent directly to the grievance officer, and
grievances related to sexual abuse are not subject to any filing
time limit. The Grievance Office will review a grievance and make a
recommendation to the Chief Administrative Officer (CAO) within two
months of receipt whenever reasonably feasible. If an inmate is
unsatisfied with the outcome at the facility he must appeal to the
ARB within 30 days.
The Court held an evidentiary hearing in this case to resolve the
dispute between the parties about whether the Plaintiff submitted a
grievance on May 21, 2021, at the prison concerning the Defendant's
allegedly improper strip search. At the hearing, the Defendant
presented credible evidence that the grievance process was
available to the Plaintiff. The Plaintiff was well-versed in the
requirements of the grievance process. He testified that it was his
own practice to always make a copy of grievance documentation that
he submitted, but he conceded that he did not have a copy of the
alleged May 21, 2021 grievance. He states that he filed the
grievance by placing it in a locked box, but that he never inquired
about the grievance at the prison again and got no response at the
prison.
While these facts could suggest unavailability consistent with Dole
v. Chandler, 438 F.3d 804, 809 (7th Cir. 2006) and subsequent
cases, the Court heard additional evidence at the hearing that was
persuasive and supported a finding that the Plaintiff's grievance
was not simply lost or confiscated by misconduct of the prison.
Specifically, Kimberly Johnson testified about the routine and
reliable function of the grievance process at Shawnee. She
indicated that the Shawnee grievance process had a receipt and
logging system that was well established. Part of this system
included the Shawnee internal grievance log, which was submitted
with the Defendants' Motion for Summary Judgment.
Against this backdrop, and with Ms. Johnson's thorough testimony,
the Court finds that the grievance process was available to the
Plaintiff to file a grievance in May of 2021, or any time
thereafter, but he simply did not file a grievance about this strip
search at Shawnee. The Court is not persuaded that the grievance
process was rendered unavailable by any machination or misdeed of
the prison.
While the Court finds that the grievance process was available to
the Plaintiff in May of 2021, and he did not utilize it, the
Plaintiff also presented another argument that the Court thoroughly
considered.
Even if the Court credits the Plaintiff's account that he became
afraid to follow-up on his May 21, 2021 grievance at Shawnee and
thus, decided to go straight to the ARB consistent with the manual,
Judge Dugan points out that the Plaintiff did not afford the ARB
hardly any time to respond to him before filing this lawsuit. The
Plaintiff claims he transmitted his grievance directly to the ARB
on Aug. 20, 2021, and he signed the operative complaint in this
case on Aug. 31, 2021. The ARB returned his grievance just about a
week later on Sept. 8, 2021.
Under this series of events, Judge Dugan says, even if the
Plaintiff believed that he could go straight to the ARB, and even
if that was true, he did not afford any time for the ARB to take
action before filing this lawsuit. A sue first, exhaust later
approach has never been acceptable, and it is not satisfactory in
this case, Judge Dugan opines.
Had the Plaintiff waited just a few weeks longer to give the ARB a
genuine chance to respond, this case might present a whole host of
other questions that are important, Judge Dugan explains. Does the
Shawnee Offender Manual alter what is required to exhaust a sexual
assault grievance, or does it make things confusing? Was the ARB's
response to the Plaintiff's grievance adequate? Did the ARB's
response create confusion or obscure the appropriate path forward?
The Court acknowledges that there is recent precedent that could
change the outcome of this case had the Plaintiff simply waited for
the ARB's response. Ultimately, the Court does not need to resolve
those questions in the present case. On the narrow set of facts
presented, the Court finds that the Plaintiff failed to exhaust his
administrative remedies in this case, so his complaint must be
dismissed without prejudice.
In light of the ruling on the Plaintiff's failure to exhaust
administrative remedies, the Court denies as moot his two Motions
to Compel Judgment.
The Plaintiff also has two Motions to Reconsider still pending.
Both motions are really secondary attempts to ask the Court to
reconsider an earlier ruling on the Plaintiff's Third Motion for
Counsel. In the motions, the Plaintiff also now expresses a desire
to have appointed counsel so that this matter can be converted to a
class action on behalf of all other inmates, who may also have
undergone a strip search by Defendant Williams at Shawnee in 2021.
Aside from expressing a desire to pursue a class action, Judge
Dugan points out that nothing in either motion to reconsider
provides a basis to alter the Court's earlier rulings on the
Plaintiff's motions for recruited counsel. The Plaintiff has done a
competent job of representing himself in this case both via written
motions and at the Pavey evidentiary hearings.
While the Plaintiff may not be a legal expert, Judge Dugan says, he
found and cited cases that were highly relevant to his own
situation, such as Smallwood v. Williams, 59 F.4th 306 (7th Cir.
2023), and he presented evidence that was important to his
position, including the excerpt of the Shawnee Offender Manual that
he included recently with a Motion to Compel. The Court stands by
its previous decisions to deny the Plaintiff's Motions for Counsel,
and as such, it also now denies the Plaintiff's Motions to
Reconsider.
The Court rules that the Plaintiff has failed to exhaust his
administrative remedies prior to filing this case, as is required
by 28 U.S.C. Section 1997(e), so this case is now subject to
dismissal without prejudice. The Plaintiff's Motions to Compel, and
the motions to reconsider are both denied. The Clerk of Court is
directed to close this case and to enter judgment accordingly.
If the Plaintiff wishes to contest this Order, Judge Dugan says he
can either file a motion under Federal Rules of Civil Procedure
59(e) or 60(b), or he can appeal to the Seventh Circuit Court of
Appeals within 30 days of the judgment or order appealed from, FED.
R. APP. P. 4(a)(1)(A). The grounds under Rules 59(e) and 60(b) are
quite narrow. For example, newly discovered evidence that was not
previously available is a basis for relief under either rule, as is
a manifest error of law.
Judge Dugan explains that these rules are not intended as a forum
to rehash previously considered arguments. If the Plaintiff chooses
to appeal to the Seventh Circuit Court of Appeals, he must file a
notice of appeal in this Court, and he must pay a filing fee of
$505, or apply for in forma pauperis (IFP) status. An IFP
application must be accompanied by a prison trust fund account
statement, as well as an outline of the issues to be presented on
appeal. If IFP status is granted, the Plaintiff will be assessed a
partial filing fee, with the balance due and owing over time
regardless of the outcome of his appeal.
A full-text copy of the Court's Memorandum and Order dated Jan. 29,
2024, is available at http://tinyurl.com/4jejx67ufrom
PacerMonitor.com.
INFINITY MANAGEMENT: Anderson Files Suit in W.D. North Carolina
---------------------------------------------------------------
A class action lawsuit has been filed against The State of North
Carolina, et al. The case is styled as Andrew D. Anderson, an
individual, an American, and Disabled Veteran of Sylva, NC; We the
People; All similarly situated free Americans v. The State of North
Carolina; The Office of the Governor of North Carolina; Roy Cooper,
III, an individual, and Governor of North Carolina; The Office of
the North Carolina Supreme Court Chief Justice; Cheri Beasley, an
individual, and former Chief Justice of the North Carolina Supreme
Court; Paul Newby, an individual, and Chief Justice of the North
Carolina Supreme Court; North Carolina Superior Court District 30;
Bradley B. Letts, an individual, and Senior Resident Superior Court
Judge 30B; North Carolina District Court; Roy T. Wijewickrama, an
individual, and Chief District Court Judge, 30th District; Kristina
L. Earwood, Kaleb D. Wingate, Dona F. Forga, as individuals, and
30th District Court Judge; John J. Pavey, Jr., an individual and
Court-appointed counsel; Jared R. Davis, an individual, and
Court-appointed counsel; The Office of the Attorney General of
North Carolina; Joshua Stein, an individual, and Attorney General
of North Carolina; The 43rd Prosecutorial District; The Office of
the District Attorney; Ashley H. Welch, as individuals, and 43rd
Prosecutorial District Attorney;
Christina B. Matheson, Andrew C. Buckner, Jacob P. Phelps, Jennaca
D. Hughs, as individuals, and Assistant District Attorney for the
43rd Prosecutorial District; Sumer L. Allen, an individual, and
Paralegal for the 43rd Prosecutorial District; Jackson County North
Carolina; Jackson County Sheriff's Department; The Office of the
Sherriff; Chip L. Hall, an individual, and retired Jackson Co.
Sheriff; CNA Surety of Sioux Falls, SD; Small Commercial Service
Center; Heather Baker, an individual, and former Jackson Co.
Attorney; Shannon H. Queen an individual, and former top-ranking
officer with the Jackson Co. Sheriff's Dept.; Ann D. Melton, an
individual and former Jackson Co. Clerk of Superior; The Office of
the Jackson County Clerk of Superior Court; The Office of the
Jackson County Magistrate; Jeffery W. Powell, an individual, Former
Jackson Co Magistrate and Deputy Magistrate; Samuel K. Bowers, an
individual, and former Jackson Co. Sheriff's Deputy Courthouse
Security; Tyler B. Bryson, an individual, and current Jackson Co.
Sheriff's Deputy and Courthouse Security; Derek A. Robinson, an
individual, and Former Jackson Co. Sheriff's Deputy and Courthouse
Security; Megan L. Rhinehart, an individual and Current Jackson Co.
Sheriff's Deputy; Kathleen D. Breedlove an individual, retired
Director of Human Resources from Southwestern Community College and
currently the Director of HR for Jackson Co.; Southwestern
Community College; Lynn P. Dann, an individual, and former
Department Head, Psychology, Sociology, and Ethics Instructor at
Southwestern Community College; Cheryl L. Contino-Conner an
individual, and former Dean of Students at Southwestern Community
College; Barbara B. Putman, an individual, and former Dean of Arts
& Sciences at Southwestern Community College; Thomas R. Brooks, an
individual, and President of Southwestern Community College; John
Does 1-99; Jane Does 1-99; Case No. 1:24-cv-00034-MR-WCM (D. Mont.,
Feb. 1, 2024).
The nature of suit is stated as Other Civil Rights.
North Carolina -- https://www.nc.gov/ -- is a state in the
Southeastern region of the United States.[BN]
The Plaintiff is represented by:
Amanda Beckers Sowden, Esq.
GANNETT SOWDEN LAW, PLLC
3936 Avenue B, Suite D
Billings, MT 59102
Phone: (406) 294-8488
Email: amanda@hgvlawfirm.com
JERRY OFFERS: Prosser Suit Removed to E.D. Missouri
---------------------------------------------------
The case captioned as Christopher Prosser, individually and on
behalf of all others similarly situated v. Jerry Offers Inc. (also
erroneously sued as Jerry Inc.), and Gainsco Auto Insurance Agency,
Inc., Case No. 23JE-CC01190 was removed from the Circuit Court of
Jefferson County, Missouri, Twenty-Third Judicial Circuit, to the
U.S. District Court for the Eastern District of Missouri on Feb. 5,
2024, and assigned Case No. 4:24-cv-00195-MTS.
The Complaint in the State Court Action purports to assert claims
against Defendants under the Telephone Consumer Protection Act of
1991, as amended, and the regulations promulgated pursuant thereto
(referred to collectively in the Complaint as the "TCPA").[BN]
The Plaintiff is represented by:
Edwin V. Butler, Esq.
BUTLER LAW GROUP, LLC
1650 Des Peres Rd., Suite 220
St. Louis, MO 63131
Email: edbutler@butlerlawstl.com
The Defendants are represented by:
Derick C. Albers, Esq.
LEWIS RICE LLC
600 Washington Avenue, Suite 2500
St. Louis, MO 63101
Phone: (314)444-7649
Fax: (314)612-7649
Email: dalbers@lewisrice.com
KEYCORP: Thompson's Reconsideration Bid in Gurevitch Suit Denied
----------------------------------------------------------------
Judge Donald C. Nugent of the U.S. District Court for the Northern
District of Ohio, Eastern Division denies the Motion for
Reconsideration and Stay in the lawsuit styled MENACHEM GUREVITCH,
Individually and on Behalf of All Others Similarly Situated,
Plaintiff v. KEYCORP, et al., Defendants, Case No.
1:23-cv-01520-DCN (N.D. Ohio).
The matter is before the Court on Lead Plaintiff Movant Richard
Thompson's Motion for Reconsideration of the Court's Opinion and
Order Dated Dec. 26, 2023, and for a Stay of Proceedings Pending
Resolution of this Motion filed on Jan. 5, 2024, in connection with
the Court's Memorandum of Opinion and Order appointing Robert J.
Titmas as Lead Plaintiff in this proposed class action case, and
approval of the law firm of Levi & Korsinsky, LLP, as lead counsel
and the law firm of Cummins Law LLC as liaison counsel.
On Jan. 19, 2024, appointed Lead Plaintiff Robert J. Titmas filed
an opposition to the motion for reconsideration. On Jan. 26, 2024,
Movant Richard Thompson filed a reply.
As noted in the Court's earlier Memorandum of Opinion, after the
filing of competing motions for appointment as lead plaintiff and
for approval of the selection of lead counsel and liaison counsel
in early October 2023, the Court then heard oral argument in open
court on Nov. 28, 2023, on the competing motions. After considering
the pleadings and evidence cited in the written papers, and hearing
the arguments of counsel, on Dec. 26, 2023, the Court issued its
Memorandum of Opinion and Order appointing Robert J. Titmas as lead
plaintiff, and approving Levi & Korsinsky, LLP, as lead cormsel and
Cummins Law LLC as liaison counsel.
The Motion for Reconsideration and Stay effectively adopts the
position that once the movant with the highest claimed losses has
been identified as the "presumptive" lead plaintiff, the Court must
also find that the "presumptive" lead plaintiff is the "most
adequate" plaintiff absent overwhelming, conclusive, and final
unassailable proof that the "presumptive" lead plaintiff cannot
under any circumstances adequately protect the interests of the
proposed class as required under Federal Rule of Civil Procedure
23(a)(4).
In support, Movant Thompson cites a decision of the U.S. Court of
Appeals for the Ninth Circuit, Mersho v. United States District
Court, 6 F.4th 891 (9th Cir. 2021), vacating a district court's
decision not to appoint a "group plaintiff" candidate formed among
a number of investors for the purposes of the litigation as lead
plaintiff based on the district court's doubts about the group's
"cohesion and ability to control counsel." The decision makes no
mention of the lower court having considered any other evidence to
determine "typicality" or "adequacy" under Federal Rule of Civil
Procedure 23(a)(3) or (4).
After considering the written pleadings and the evidence identified
therein, followed by the arguments of counsel in open court, the
Court determined that Movant Thompson did not satisfy the role of
most adequate plaintiff under 15 U.S.C. Section
78u-4(a)(3)(B)(iii)(l), and that Movant Titmas rebutted the
"presumption" that the movant with the highest claimed losses
should be appointed.
Accordingly, the Court appointed the next (and only other) movant
with the second-most claimed losses, Robert J. Titmas, as Lead
Plaintiff in this proposed class action case and approved the law
firm of Levi & Korsinsky, LLP as lead counsel and the law firm of
Cummins Law LLC as liaison counsel.
This finding was articulated within the Court's discussion of the
Rule 23(a) requirement of "typicality" under Rule 23(a)(3), which
preceded its later discussion of the Rule 23(a)(4) requirement of
"adequacy"; but, as is obvious from the placement of the term most
adequate plaintiff at the very beginning of the text of 15 U.S.C.
Section 78u-4(a)(3)(B)(iii)(l), predicate to, and overarching, the
later subsection of the statute relating to examination of the Rule
23(a) factors of "typicality" and "adequacy," it is clear that the
"adequacy" of the most adequate plaintiff finding ultimately to be
determined by the Court encompasses both the typicality and
adequacy factors of Rule 23(a).
Movant Thompson's quarrel with the Court's decision appears, at
least partially, motivated by the fact that the Court expressed its
findings on Thompson's "inadequacy" as a lead plaintiff in the
"typicality" discussion of its opinion rather than in the Rule
23(a) "adequacy" discussion.
Contrary to the assertions implied in Movant Thompson's motion for
reconsideration, Judge Nugent opines that seeking a strident
application of 15 U.S.C. Section 78u-4(a)(3)(B)(iii)(l) to make the
initial "presumption" that the movant with the most claimed losses
should be named lead plaintiff an essentially unrebuttable one,
courts fulfill a gatekeeping function in class action litigation,
and the Court may have some discretion as gatekeeper in securities
class actions.
Nor is Movant Thompson's apparent contention that the Court must
find overwhelming, conclusive, and final proof that the
"presumptive" lead plaintiff fails the typicality and adequacy
requirements before the "presumption" of the most adequate
plaintiff is rebutted an accurate one, Judge Nugent explains.
After considering both the written and oral evidence presented, the
Court found that the possibility of unique defenses as to, at least
portions of, Movant Thompson's trading history in KeyCorp stock, as
well as the potential distractions that litigation over his trading
history (even if not successful) might cause, work to rebut the
presumption that Movant Thompson is the "most adequate plaintiff."
After now reviewing and considering the Court's prior Memorandum of
Opinion and Order and the briefing on Movant Thompson's Motion for
Reconsideration, Lead Plaintiff Robert Titmas' opposition, and
Movant Thompson's reply, the Court finds that reconsideration of
its Memorandum of Opinion and Order is not warranted.
Accordingly, Lead Plaintiff Movant Richard Thompson's Motion for
Reconsideration of the Court's Opinion and Order Dated Dec. 26,
2023, and for a Stay of Proceedings Pending Resolution of this
Motion is denied.
A full-text copy of the Court's Memorandum of Opinion and Order
dated Jan. 29, 2024, is available at http://tinyurl.com/mr24ha6r
from PacerMonitor.com.
MARYLAND: Court Dismisses Bonnett Prisoner Suit Against Warden
--------------------------------------------------------------
Judge Deborah K. Chasanow of the U.S. District Court for the
District of Maryland dismisses the lawsuit captioned JAMES E.
BONNETT, Plaintiff v. WARDEN, et al., Defendants, Case No.
1:23-cv-01700-DKC (D. Md.).
Self-represented Plaintiff James E. Bonnett, an inmate currently
confined at the Jessup Correctional Institution ("JCI") in Jessup,
Maryland, filed the complaint alleging that the companies providing
commissary and telephone services to JCI were a monopoly.
Because the complaint failed to state a claim against a proper
defendant, the Court issued an order on Oct. 2, 2023, requiring Mr.
Bonnet to amend his complaint, as well as to pay the filing fee or
file a motion to proceed in forma pauperis. He was provided 28 days
to comply with the order and was forewarned that failure to file
the information required would result in the dismissal of the
suit.
Mr. Bonnett filed an amended complaint on Oct. 19, 2023, together
with a motion for leave to proceed in forma pauperis. Because he
appears indigent, Mr. Bonnett's motion will be granted, Judge
Chasanow holds. For the reasons that follow, however, the case must
be dismissed.
The Court is obliged by 28 U.S.C. Section 1915A to screen prisoner
complaints and dismiss any complaint that is "frivolous, malicious
or fails to state a claim upon which relief may be granted, or
seeks monetary relief from a defendant who is immune from such
relief."
The Court is mindful of its obligation to accord liberal
construction to the pleadings of self-represented litigants, such
as Mr. Bonnett. Nonetheless, liberal construction does not mean
that the Court can ignore a clear failure in the pleading to allege
facts that set forth a cognizable claim.
Mr. Bonnett's amended complaint purports to state a claim pursuant
to 42 U.S.C. Section 1983, which provides that a plaintiff may file
suit against any person who, acting under color of state law,
"subjects, or causes to be subjected, any citizen of the United
States or other person within the jurisdiction thereof to the
deprivation of any rights, privileges, or immunities secured by the
Constitution and laws" of the United States.
Section 1983, however, "is not itself a source of substantive
rights, but merely provides 'a method for vindicating federal
rights elsewhere conferred,'" Judge Chasanow opines, citing
Albright v. Oliver, 510 U.S. 266, 271 (1994) (quoting Baker v.
McCollan, 443 U.S. 137, 144 n.3 (1979)).
Mr. Bonnett claims that he is a "victim of a massive 'kickback'
scheme w[h]ere jointly each defendant used means to obtain purchase
of your funds such change in prices etc. and each were aided by
very powerful partnership schemes jointly," but he does not provide
any facts to support this vague and conclusory allegation, Judge
Chasanow notes. Furthermore, he names Defendants, who are not
amenable to suit under Section 1983.
Mr. Bonnett names the Department of Public Safety and Correctional
Services ("DPSCS") and the DPSCS Inmate Tablet Program as
defendants. Judge Chasanow explains that under the Eleventh
Amendment to the United States Constitution, a state, its agencies
and departments are immune from suits in federal court for damages
brought by its citizens or the citizens of another state, unless it
consents.
While the State of Maryland has waived its sovereign immunity for
certain types of cases brought in state courts, it has not waived
its immunity under the Eleventh Amendment to suit in federal court,
Judge Chasanow says. As a department of the State of Maryland,
DPSCS is immune from suit, as is its "tablet program," to the
extent that encompassed within DPSCS.
Defendant Keefe Commissary is a private corporation that provides
goods for sale in Maryland's prison commissaries. The Complaint
does not explain what role Defendant Global Tel Link plays,
however, it appears to be another private corporation contracted to
provide services to inmates.
Judge Chasanow opines that seemingly private conduct can be the
subject of a Section 1983 suit in limited circumstances. However,
none of the exceptions apply here, therefore, the claims against
Defendants Keefe Commissary and Global Tel Link must be dismissed.
Defendant JCI is not a proper defendant, which can be sued under
Section 1983, Judge Chasanow holds. A number of courts have held
that inanimate objects, such as buildings, facilities, and grounds,
do not act under color of state law and are not subject to suit
under Section 1983.
Conduct amenable to suit under 42 U.S.C. Section 1983 must be
conduct undertaken by a person, and JCI is not a person within the
meaning of the statute, Judge Chasanow opines. Therefore, it must
be dismissed.
As to Defendant Warden, Mr. Bonnett does not make any factual
allegations to demonstrate that the Warden personally took action
that violated his constitutional rights or is subject to
supervisory liability; therefore, the complaint against him must be
dismissed, Judge Chasanow holds.
Because Mr. Bonnett has failed to state a claim upon which relief
can be granted against any of the named Defendants, Judge Chasanow
holds that the amended complaint must be dismissed.
The Plaintiff states that he requests an attorney and the "use of
class action." Construed as motions to appoint counsel and to
certify a class, Judge Chasanow says the motions will be denied as
moot.
Mr. Bonnett is advised that under 28 U.S.C. Section 1915(g), he
will not be granted in forma pauperis status if he has "on 3 or
more prior occasions, while incarcerated or detained in any
facility, brought an action or appeal in a court of the United
States that was dismissed on the grounds that it is frivolous,
malicious, or fails to state a claim upon which relief may be
granted, unless the prisoner is under imminent danger of serious
physical injury."
A full-text copy of the Court's Memorandum Opinion dated Jan. 29,
2024, is available at http://tinyurl.com/5n7axzxbfrom
PacerMonitor.com.
MASSACHUSETTS MUTUAL: S.D. New York Dismisses Lichter Class Suit
----------------------------------------------------------------
Chief Judge Laura Taylor Swain of the U.S. District Court for the
Southern District of New York grants the Defendants' motion to
dismiss the lawsuit titled MENACHEM LICHTER, individually and on
behalf of all those similarly situated, Plaintiff v. MASSACHUSETTS
MUTUAL LIFE INSURANCE CO. d/b/a/ MASSMUTUAL, MASSMUTUAL BROOKLYN,
AARON KLEIN, JACOB KAHAN, SHLOIME HOFFMAN, SHIMON GREENWALD, JOHN
DOE 1-10 and JANE DOE 1-10, Defendants, Case No. 1:22-cv-04488-LTS
(S.D.N.Y.).
Plaintiff Menachem Lichter brings this proposed class action on
behalf of himself and all those similarly situated asserting claims
against Massachusetts Mutual Life Insurance Co. ("MassMutual"),
MassMutual Brooklyn ("MMB") (together with MassMutual, the
"Corporate Defendants"), Aaron Klein, Jacob Kahan, Shloime Hoffman,
Shimon Greenwald (together with Klein, Kahan, and Hoffman, the
"Individual Defendants"), and all unidentified agents, who took
part in the alleged schemes.
The Plaintiff initiated this action in state court, and the
Defendants timely removed to federal court on May 31, 2022,
pursuant to 28 U.S.C. section 1441. The Plaintiff asserts various
causes of action, including breach of contract against the
Corporate Defendants, violations of the New York Labor law, against
the Corporate Defendants, Klein and Kahan; claims for unjust
enrichment, conversion, violation of the Racketeer Influenced and
Corrupt Organizations Act ("RICO"), and conspiracy to violate RICO
against all Defendants; and a claim for aiding and abetting the
same against Hoffman and Greenwald.
The Defendants have jointly moved to dismiss this action for
failure to state a claim upon which relief can be granted pursuant
to Federal Rule of Civil Procedure 12(b)(6). For the reasons set
forth in this Memorandum Order, the Motion is granted in its
entirety, the Plaintiff's federal claims are dismissed, and the
Plaintiff's remaining state claims are remanded to the New York
County Supreme Court.
The Plaintiff entered a "Career Contract" agreement with MassMutual
and its subsidiary, MMB, on Feb. 28, 2013. Under the terms of the
Contract, the Plaintiff worked as an insurance agent and was paid,
in part, based on commissions from sales. He worked for MassMutual
from Feb. 28, 2013, to Dec. 31, 2021 (the "Relevant Period").
Defendant Klein was a director at MMB with the title of "General
Agent." Both Klein and Kahan are alleged to be principals, who
exert dominion and control over MMB, and used MMB and MassMutual as
an enterprise to obtain funds and power unlawfully. Defendants
Hoffman and Greenwald were insurance agents working for the
Corporate Defendants during the relevant period.
During the relevant period, MMB earned various distinctions for its
productivity, including the title of "the #1 producing office in
the country." These awards meant that higher managers, such as
Klein, received monetary bonuses. One key metric of productivity
was whether the branch achieved a "minimum number of agents" who
sold high-worth insurance policies. To inflate the number of
high-performing agents, the Individual Defendants allegedly devised
a scheme to present the Plaintiff's earned commissions as sales
earned by lower-performing agents (the "Commission Sharing
Scheme").
In 2018, the Plaintiff was coerced into giving a $12,000 commission
to Greenwald, which was never returned despite Klein's assurances
otherwise. In addition to the commission sharing scheme, the
Individual Defendants also pressured the Plaintiff into providing
donations to a third party, Congregation Broshiv, in exchange for
kickbacks (the "Kickback Scheme").
Around November 2013, Klein threatened to withhold the payment of
the Plaintiff's outstanding commission—a sum of around
$15,000—if the Plaintiff did not donate to the Congregation.
After the Plaintiff made a $125,000 donation, Klein released his
outstanding commission the next day. On the same day that the
Plaintiff received his outstanding commission check, another check
was also released to Hoffman with an additional payout.
The Plaintiff brings this proposed class action on behalf of
himself and all other similarly situated employees and agents of
MassMutual or MMB, who may have been subjected to similar conduct
between Feb. 28, 2013, and the date when judgment is entered in
this action. He initiated this action in the New York County
Supreme Court on April 3, 2022.
The Defendants move, pursuant to Federal Rule of Civil Procedure
12(b)(6), to dismiss the Plaintiff's Complaint in its entirety for
failure to state a claim upon which relief can be granted.
The Plaintiff pleads two federal causes of action: substantive
violations of RICO, 18 U.S.C. Section 1962(c), and conspiracy to
violate RICO, 18 U.S.C. Section 1962(d). The alleged "pattern of
activity" consisted of various acts of mail and wire fraud in
violation of 18 U.S.C sections 1341 and 1343. Specifically, the
Plaintiff alleges the Defendants regularly transmitted writings,
signs, signals, pictures and sounds (the "Wirings") and also
regularly caused matters and things to be placed in any post office
or authorized depository to be sent or delivered by a private or
commercial interstate carrier (the "Mailings")." These Wirings and
Mailings consisted of various marketing, advertising, sales
material, and other MassMutual Enterprise-generated documents and
included the use of private g-mail addresses.
The Defendants argue, inter alia, that the allegations in the
Complaint are partially time-barred and fail to establish a pattern
of predicate acts of racketeering activity sufficient to sustain
either a substantive RICO or a conspiracy claim. The Court agrees.
The Court finds, from the face of the Complaint, that the Plaintiff
is time-barred from asserting a RICO claim on the basis of the
Kickback Scheme. The only specific injury that the Plaintiff
alleges resulted from the Kickback Scheme occurred in November
2013, when Klein withheld his commission to coerce him to donate to
Congregation Broshiv.
The Plaintiff argues this claim is timely because the four-year
statute of limitations should be tolled due to the Defendants'
fraudulent concealment. He asserts that the Defendants' allegedly
fraudulent misrepresentations that he would be paid his commission
in full prevented him from realizing that he had been injured.
The Plaintiff's argument simply does not measure up to his own
factual allegations, Judge Swain opines. The Plaintiff alleges that
he was paid in full in November 2013, albeit after he was forced to
give a sizeable donation to the Congregation. Nothing on the face
of the Complaint even suggests that, based on the method by which
the fraud was committed, the Plaintiff would be oblivious to the
fact that he was harmed at all.
To the contrary, Judge Swain says, the alleged harm was readily
apparent to the Plaintiff on the day it occurred. Thus, Judge Swain
holds the doctrine of fraudulent concealment is inapplicable, and
any RICO claims arising from the 2013 allegations are time-barred.
According to Judge Swain, the Plaintiff's claim based on his
alleged 2018 injury resulting from the commission sharing scheme
may be timely. This claim fails on the merits, however, because the
Plaintiff has not alleged facts sufficient to show that the
Defendants participated in a pattern of racketeering activity
within the meaning of RICO.
The alleged Mailings and Wirings comprised advertising materials
such as those routinely found on MassMutual's website and, the
Plaintiff asserts, contained misrepresentations intended simply to
induce agents and their clients to sell and purchase MassMutual
insurance and financial products/policies pursuant to terms the
Defendants knew they would not fulfill.
However, Judge Swain finds the Complaint fails to allege any facts
to support the implication of fraudulent intent. To the contrary,
MassMutual's only promotional representations delineated in the
Complaint advertise MassMutual's investment strategies and customer
loyalty.
Judge Swain opines that the Plaintiff has not alleged facts
contesting the accuracy of these promises, and, regardless, they
bear no relationship whatsoever to the alleged commission sharing
scheme. The Plaintiff has alleged no information in the Mailings or
Wirings that was instrumental in, or even pertinent to, the
commission sharing scheme.
Therefore, the Court finds no indicia of fraudulent intent
necessary to establish mail fraud on the basis of the Mailings or
Wirings. The Plaintiff has, therefore, failed to plead the
requisite pattern of racketeering activity, which is fatal to his
RICO claim. Because the Court finds the Plaintiff has failed to
establish a required element of his RICO claim, it need not
consider the question of whether he has adequately plead facts
sufficient to establish the remaining elements of a RICO claim.
Additionally, Judge Swain notes, in the circumstances present here,
the Plaintiff's failure to state a claim for a substantive RICO
violation is also fatal to his RICO conspiracy claim, given that he
relies on the same factual predicate to plead both the substantive
RICO violation and the conspiracy claim.
For these reasons, Judge Swain holds the Plaintiff's claims
asserting violations of RICO and conspiracy to commit RICO
violations are dismissed for failure to state a claim upon which
relief may be granted.
Having dismissed the claims of which the Court has original
jurisdiction, the Court declines to exercise supplemental
jurisdiction of the Plaintiff's state law claims, pursuant to 28
U.S.C. Section 1367(c).
Judge Swain notes that the Plaintiff has not requested leave to
amend in the event the Complaint is dismissed. Where a plaintiff
does not seek leave to amend his complaint, the Court affords him
no such opportunity. Leave to amend is, therefore, denied.
For these reasons, Judge Swain rules the Defendants' Motion to
Dismiss is granted in its entirety, the Plaintiff's federal claims
are dismissed, and the Court declines to exercise supplemental
jurisdiction of the remaining state law claims. This case is
remanded to the New York County Supreme Court for all further
proceedings.
This Memorandum Order resolves docket entry no. 14. The Clerk of
Court is directed to effectuate the remand and close this case.
A full-text copy of the Court's Memorandum Order dated Jan. 29,
2024, is available at http://tinyurl.com/yvzb7dfufrom
PacerMonitor.com.
MCLAREN HEALTH: E.D. Michigan Prohibits Filings in Taylor Suit
--------------------------------------------------------------
In the lawsuit styled LINDA TAYLOR, Plaintiff v. McLAREN HEALTH
CARE CORPORATION, Defendant, Case No. 2:23-cv-12971-MFL-CI (E.D.
Mich.), Judge Matthew F. Leitman of the U.S. District Court for the
Eastern District of Michigan, Southern Division, issued an order
prohibiting filings in the action until further order of the
Court.
On Nov. 21, 2023, Plaintiff Linda Taylor filed this putative class
action against Defendant McLaren Health Care Corporation. The Court
intends to hold a status conference to discuss next steps in this
case.
Until the Court holds that status conference, and until further
order of the Court, there will be no filings in this action other
than attorney appearances. In other words, McLaren need not answer
or otherwise respond to the Complaint prior to the status
conference.
A full-text copy of the Court's Order dated Jan. 29, 2024, is
available at http://tinyurl.com/4pfw3ru4from PacerMonitor.com.
MDL 2670: Court Denies DWI's Bid to Strike in Packaged Seafood Suit
-------------------------------------------------------------------
Chief Judge Dana M. Sabraw of the U.S. District Court for the
Southern District of California denies Dongwon Industries Co.,
Ltd.'s motion to strike in the multidistrict litigation styled IN
RE: PACKAGED SEAFOOD PRODUCTS ANTITRUST LITIGATION. This Document
Relates To: ALL ACTIONS, Case No. 3:15-md-02670-DMS-MSB (S.D.
Cal.).
Pending before the Court is Defendant Dongwon Industries Co.,
Ltd.'s ("DWI") motion to strike certain reports prepared by the
Plaintiffs' experts, Adoria Lim and Marianne DeMario. The End
Payer, Commercial Food Preparer, and Direct Purchaser Plaintiff
Classes opposed. DWI filed a reply. The Commercial Food Preparer
Class has since settled its claims against StarKist Company and
DWI.
On the heels of the announcement by the Antitrust Division of the
United States Department of Justice ("DOJ") in July 2015 of an
investigation into the packaged tuna industry and the filing of
related indictments for price fixing in violation of antitrust
laws, a number of civil lawsuits were filed against the major
corporate players in the industry and their parent entities,
including, StarKist Company and DWI, respectively.
During the pendency of this multidistrict litigation, StarKist and
one of its executives pleaded guilty to participating in the price
fixing conspiracy. Among other claims, the Plaintiffs alleged that
the parent entities should be held vicariously liable for their
subsidiaries' participation in the conspiracy.
The parties have engaged in years of discovery, including
designation of expert witnesses. As relevant here, the Direct
Purchaser Plaintiff Class designated DeMario, and the End Payer
Plaintiff Class designated Lim. Both experts were retained as
forensic accountants. Lim and DeMario issued their initial reports
on Feb. 15, 2019 ("DeMario Report" and "Lim Report"), and were
subsequently deposed. DeMario was deposed on April 23, 2019, and
Lim was deposed on May 1, 2019.
After Lim and DeMario's depositions, DWI disclosed its experts,
including Robert M. Daines, a law professor with a J.D. degree and
a B.S. degree in economics ("Daines Report"). Daines was tasked
with evaluating Lim and DeMario's opinions, among other things. He
issued his report on May 10, 2019.
Thereafter, the Plaintiffs served their rebuttal expert reports.
DeMario and Lim's rebuttals of Daines were timely issued on July 2,
2019. Lim and DeMario were deposed again. Lim was deposed on July
31, 2019, and DeMario was deposed on Aug. 15, 2019.
The Lim Rebuttal is directed to two defense experts, Daines and
Ilya A. Strebulaev, a private equity expert designated by Lion
Capital (Americas), Inc., Lion Capital LLP ("Lion Capital"), and
Big Catch Cayman LP ("Big Catch," collectively the "Lion
Entities"). DWI's motion to strike the Lim Rebuttal is not limited
to Lim's rebuttal of Daines, however, as DWI requests to strike
Lim's Rebuttal in its entirety, including her rebuttal of
Strebulaev.
Judge Sabraw notes that Strebulaev was not designated by DWI but by
the Lion Entities, which filed their own motion to challenge the
Plaintiffs' experts, including Lim. DWI has provided no explanation
for seeking to strike Lim's rebuttal of Strebulaev. As a general
rule, federal courts only allow litigants to assert their own legal
rights and interests, not the legal rights and interests of third
parties. To the extent DWI's motion purports to attack Lim's
rebuttal of Strebulaev, it is denied, Judge Sabraw holds.
DWI seeks to strike the Lim Rebuttal under Federal Rule of Civil
Procedure 37 for failure to comply with Rule 26(a)(2)(B)(i), which
requires expert reports to contain a complete statement of all
opinions the witness will express and the basis and reasons for
them. DWI argues that the Lim Rebuttal violates this requirement
because it contains additional opinions.
In her Report, Lim opined that StarKist, a wholly owned subsidiary
of DWI, engaged in financial transactions with DWI, including
dividend distributions and incurring debt (guaranteed by DWI) for
stock buyback from DWI and others, which reduced StarKist's
earnings and assets. She also noted that she "may be asked to
respond to potential reports or the testimony of other witnesses
and experts in this matter."
The Court rejects DWI's argument that the opinions expressed in the
Lim Rebuttal were required to be included in her initial Report.
The Court, therefore, does not reach the issue of Rule 37
sanctions.
DWI further moves to strike portions of the Lim Rebuttal, DeMario
Report, and DeMario Rebuttal based on Federal Rules of Evidence
702, 704, and 403.
Although DWI does not directly challenge Lim's qualifications, it
argues that her use of terms and phrases such as "control,"
"agent," "alter ego," and "benefits from the price-fixing
conspiracy" are outside her area of expertise because she is not an
attorney. DWI further contends that to the extent Lim's opinions
rest on this legal terminology, they are unreliable.
Ms. Lim is a Certified Public Accountant ("CPA") with 20 years of
experience in accounting and finance. She testified that she was
not offering any legal opinions but offered opinions in her
capacity as a forensic accountant.
Judge Sabraw finds that a review of Ms. Lim's rebuttal bears this
out. Her discussion of Dongwon's benefits from the price-fixing
conspiracy is based on accounting rather than legal analysis. Based
on the foregoing, DWI's argument that Lim's opinions are unreliable
for using legal terms outside her expertise is, therefore,
rejected.
Judge Sabraw finds, among other things, that Lim adequately
explained her methodology and disclosed the facts on which she
based her opinion. DWI does not question Lim's assessment that
tracing was not possible or that she had the necessary
qualifications to reliably perform the allocation, which the Court
finds she had. Accordingly, the Court finds her opinion reliable.
Ms. DeMario is a CPA with 25 years of experience in public
accounting, forensic investigations, and financial analysis. She is
accredited in business valuation and financial forensics. She
evaluated the financial relationships between the StarKist
affiliated group of companies.
As with Lim, DWI does not directly challenge DeMario's
qualifications but argues that her use of terms and phrases such as
"control," "control to a high degree," "agent," "alter ego," and
"single economic unit" are outside her area of expertise because
she is not an attorney, and that to the extent her opinions rest on
legal terms, they are unreliable. The Court rejects these
arguments.
Among other things, the Court opines that DeMario relied on
sufficient facts and data, adequately explained her reasoning, and
possessed sufficient experience and expertise to render a reliable
opinion.
Judge Sabraw also opines that neither Lim nor DeMario offered any
legal opinions and did not use the words and phrases to which DWI
objects as legal terms but "in their ordinary, everyday sense."
Although the same words are used in the legal standards on the
issues of corporate vicarious liability, Lim and DeMario do not
purport to instruct the jury that DWI should be held vicariously
liable for StarKist's wrongdoing. DWI's contention that Lim and
DeMario improperly opined on ultimate legal issues is rejected.
Finally, DWI argues that to the extent Lim and DeMario's opinions
use terms and phrases like "control," "single economic unit,"
"agent," or "alter ego," they should be excluded because they have
"dual meanings" and run a high risk of confusing the jury. DWI also
contends that Lim and DeMario's opinions are prejudicial,
misleading, and of limited relevance because they are outside their
area of expertise.
The Court rejects the contention that Lim and DeMario's use of
words and phrases that are also used in legal standards will
confuse the jury. Any confusion can be averted by an inquiry into
the basis for their opinions at trial.
The Court finds that DWI has failed to show that Lim's opinion is
either unfair or misleading. As discussed, DWI's recourse is
cross-examination and impeachment at trial rather than exclusion of
evidence. For these reasons, DWI's motion is denied.
A full-text copy of the Court's Order dated Jan. 29, 2024, is
available at http://tinyurl.com/3pjzhysmfrom PacerMonitor.com.
META PLATFORM: Court Denies Bid to Dismiss Healthcare Pixel Suit
----------------------------------------------------------------
Judge William H. Orrick of the U.S. District Court for the Northern
District of California denies the Defendant's motion to dismiss in
the consolidated lawsuit entitled IN RE META HEALTHCARE PIXEL
LITIGATION, Case No. 3:22-cv-03580-WHO (N.D. Cal.).
In the Court's Sept. 7, 2023 Order, Judge Orrick denied Defendant
Meta Platform, Inc.'s motion to dismiss certain claims, but granted
it with leave to amend the Plaintiffs' claims for invasion of
privacy/intrusion on seclusion, California's Comprehensive Computer
Data Access and Fraud Act ("CDAFA"), negligence per se, trespass,
larceny, Unfair Competition Law ("UCL"), and California's Consumers
Legal Remedies Act ("CLRA") (Doe v. Meta Platforms, Inc., No.
22-CV-03580-WHO, 2023 WL 5837443, at *17 (N.D. Cal. Sept. 7,
2023)).
In their First Amended Consolidated Class Action Complaint ("FAC"),
the Plaintiffs did not reallege their negligence per se, larceny,
or UCL claims and amended and realleged their privacy/intrusion of
seclusion, CDAFA, trespass and CLRA claims. Meta moves again to
dismiss. The Plaintiffs voluntarily withdraw their CLRA claim but
contest dismissal of the other claims.
In the September 2023 Order, Judge Orrick rejected most of Meta's
challenges to the Plaintiffs' privacy claims but recognized that
the Plaintiffs are required to amend to describe the types or
categories of sensitive health information that they provided
through their devices to their healthcare providers.
In the FAC, the Plaintiffs identify the specific types of
information they provided to their healthcare providers that they
believe Meta collected without their consent. For the most part,
the Plaintiffs identify the health conditions for which they sought
treatment or services, as well as examples of their queries,
appointment requests, or other information and services about which
they communicated with their providers.
Meta takes another pass at arguing that these disclosures are
insufficient to plausibly plead their privacy-based claims. But the
allegations suffice at this juncture because they identify
generally the types of sensitive information the Plaintiffs shared
with their healthcare providers that was plausibly collected by
Meta, Judge Orrick says.
Meta also attacks on these claims because the Plaintiffs
transmitted some or all of their healthcare information to their
providers' websites through "publicly accessible" URLs, meaning
URLs that were accessible without a user logging in. It contends
that its retrieval of the Plaintiffs' information from those
unprotected or public pages cannot support an invasion of privacy
claim.
In the Preliminary Injunction Order, Judge Orrick distinguished the
Smith district court decision: "Meta does not challenge plaintiffs'
assertion that patient status is protected information under HIPAA,
but instead relies on Smith v. Facebook, 262 F. Supp. 3d 943 (N.D.
Cal. 2017). But Smith does not forestall my conclusion that patient
status is protected health information."
Meta contends that based on the additional allegations of the FAC,
this case falls within the Smith line and the privacy claims should
be dismissed. The Plaintiffs counter that because they and their
healthcare providers have a "privileged" relationship and because
their searches were not random web searches but submission of
information by patients to their healthcare providers, they can
state invasion of privacy claims even if the submissions were made
through the publicly available pages of their providers' websites.
Judge Orrick holds that the Plaintiffs' privacy claims are not
foreclosed at this juncture in whole or in part simply because
their communications with their healthcare providers may have been
through publicly available webpages. That fact is not irrelevant to
the question of whether the Plaintiffs will ultimately be able to
prove an invasion of privacy when considering the totality of the
circumstances, but at this juncture and given that the Plaintiffs
were communicating with their healthcare providers about their
healthcare needs, they have alleged enough for this claim to
proceed to discovery, Judge Orrick points out.
Judge Orrick dismissed the CDAFA claim in the September 2023 Order
so that the Plaintiffs could plead facts regarding "impairment of
their computing devices" required under CDAFA. Judge Orrick
rejected the Plaintiffs' prior theories of damage or loss based on
the "diminished value of information" and their alleged "inability"
to use their computer devices to communicate with their healthcare
providers in the future.
Judge Orrick recognized that what the Plaintiffs might be able to
plead on amendment regarding impairment would also inform whether a
plaintiff could satisfy a separate CDAFA element—to plausibly
allege facts establishing the Pixel as a contaminant that "usurps"
the normal operation of the Plaintiffs' devices.
The Plaintiffs now plead the following injuries: (i) Meta occupied
storage space on their devices without authorization; (ii) Meta's
acts caused their devices to work slower; (iii) Meta's acts used
computer resources of the device; and (iv) Meta unjustly profited
from the data taken. Meta argues that the amended claim must
nonetheless be dismissed because all the Plaintiffs have not
alleged sufficient damage or loss as a result of Meta's actions.
Judge Orrick finds that the Plaintiffs' revised allegations
identifying the measureable impact on their devices are sufficient
at this juncture.
Moving beyond damage or loss, Meta argues that the Plaintiffs have
failed to allege facts sufficient to plausibly state violations of
(c)(1) and (c)(8) of CDAFA. Under (c)(8), Meta argues that the
Plaintiffs' allegations about the Pixel do not suffice to qualify
it as a prohibited contaminant under (c)(8).
However, the Plaintiffs allege that the Pixel records and transmits
information to Meta. They say that Meta designed the Pixel to log
and track website visitors' actions, that Meta disguises the Pixel
as a first-party cookie to allow it to be placed on website
visitors' devices and avoid detection, and that the Pixel usurps
the normal operation of website visitors' devices.
These are sufficient to allege that the Pixel, as Meta puts it,
transmits information without permission in violation of (c)(8),
Judge Orrick holds. Whether that was Meta's intent or whether
Meta's intent was not to secure sensitive tracking information
without consent should be tested on an evidentiary basis. Hence,
the motion to dismiss the CDAFA claims is denied.
Judge Orrick dismissed the trespass to chattels claim because the
Plaintiffs failed to allege the required impact on the
functionality of their devices from Meta's conduct.
In the FAC, the Plaintiffs allege the impairment as: (i) placement
of the _fbp cookie/tracking tool, as the tool takes up a
"measurable" amount of available storage that would otherwise be
available to the devices; (ii) Meta source code that "used a
measurable amount of resources" that slow the speed of user
devices; and (iii) the lost time caused by Meta's slowing
communications exchanged with their healthcare providers, causing
"measurable" increases in web-page loading time.
As a result, the Plaintiffs seek nominal damages, as well as
damages for the loss of storage space and loss of time caused by
Meta's slowing of communications between the Plaintiffs and their
healthcare providers.
Judge Orrick will let the trespass to chattels claim based on the
surreptitious placement of the _fbp cookie on the Plaintiffs'
devices, resulting in a measurable decrease in the storage the
Plaintiffs' have on their phone proceed. This is a close call
involving thorny and evolving issues of state law. Judge Orrick
opines that discovery and expert testimony may establish that the
placement of, operation of, or impact of the _fbp cookie cannot
rise to a sufficient level of harm under Intel Corp. v. Hamidi, 30
Cal. 4th 1342 (2003), but the impacts are better explored after
discovery. Hence, Meta's motion to dismiss is denied.
Meta separately moves to strike Paragraph 357 of the FAC, where the
Plaintiffs exclude from their class "health information that was
obtained by Meta from Hey Favor, Inc." Meta wants, in connection
with its pending motion to sever the claims asserted against in it
the Doe v. Hey Favor case, Case No. 23-cv-0059-WHO, to have those
claims wrapped into this case. The claims against Meta in the Hey
Favor action will stay in the Hey Favor action and proceed along
with the claims against the other defendants in that case.
Judge Orrick denies the motion to strike. As Judge Orrick reminded
counsel during the hearing on this motion, the shape this
consolidated class action will ultimately have -- with respect to
any class or classes certified or otherwise -- will be determined
by the Court at the appropriate time.
The Plaintiffs have defined the scope of the class in the pending
FAC to their liking, but Judge Orrick will be the ultimate arbiter
of what makes sense from a case management and litigation
perspective.
Accordingly, Judge Orrick rules that Meta's motion to dismiss is
denied, except for the CLRA claim that the Plaintiffs voluntarily
abandon.
A full-text copy of the Court's Order dated Jan. 29, 2024, is
available at http://tinyurl.com/f89c2fufrom PacerMonitor.com.
MINNESOTA: Bishop, Goodwin, McRae & Mosby Suits v. Swanson Tossed
-----------------------------------------------------------------
Judge Katherine M. Menendez of the U.S. District Court for the
District of Minnesota grants the Defendants' motions and dismisses
four lawsuits: Merel Evans Bishop, Plaintiff v. Lori Swanson, et
al., Defendants, Case No. 0:12-cv-00135-KMM-DTS (D. Minn.); Joseph
Goodwin, Plaintiff v. Lori Swanson, et al., Defendants, Case No.
12-cv-180 (KMM/DTS) (D. Minn.); William McRae, Plaintiff v. Lori
Swanson, et al., Defendants, Case No. 12-cv-221 (KMM/DTS) (D.
Minn.); and William Mosby, Plaintiff v. Lori Swanson, et al.,
Defendants, Case No. 12-cv-320 (KMM/DTS) (D. Minn.).
Plaintiffs Merel Evans Bishop, Joseph Goodwin, William McRae, and
William Mosby are detained under orders of civil commitment at the
Minnesota Sex Offender Program ("MSOP") facility in Moose Lake,
Minnesota. Early in 2012, each of them filed substantially similar,
lengthy complaints challenging the conditions of their confinement
and various MSOP practices. All four cases were stayed while a
related class action brought on behalf of all MSOP
detainees--Karsjens v. Piper, No. 11-cv-3659--was pending. In
February 2022, a final judgment was entered in Karsjens, and on
Oct. 3, 2022, the stay in each of these cases was lifted.
On Jan. 24, 2023, after screening the complaints pursuant to 28
U.S.C. Section 1915, United States Magistrate David T. Schultz
issued a Report and Recommendation concluding that the vast
majority of the Plaintiffs' claims should be dismissed, and this
Court accepted Judge Schultz's recommendation in an Order dated
March 15, 2023.
However, some of the Plaintiffs' claims survived the Section 1915
screening. Specifically, the Court found that:
1. Plaintiffs' Cause of Action 2 ("COA") (unreasonable
searches and seizures) could proceed with respect to
their claims that MSOP policies are causing impermissible
monitoring of their calls with their attorneys and actual
property losses;
2. Plaintiffs' COA 3 (invasion of privacy) could proceed with
respect to their claims that MSOP policies are causing
impermissible monitoring of their calls with their
attorneys;
3. Plaintiffs' COA 7 (cruel and unusual punishment) could
proceed with respect to their claims that do not concern
policies and conditions already addressed in the Karsjens
litigation;
4. Plaintiffs' COA 9 (due process) could proceed with respect
to their claims that do not raise procedural-due-process
concerns regarding policies and conditions already
addressed in the Karsjens litigation; and
5. Plaintiffs' COA 15 could proceed, which asserts that the
totality of the conditions of confinement violate their
Fourteenth Amendment rights.
Following that decision, the Defendants filed motions to dismiss in
each of these cases, arguing that the Plaintiffs' claims are barred
by claim preclusion, issue preclusion, or that the complaints fail
to state a claim. The motions in each case are identical.
These matters are now before the Court on the Order and Report and
Recommendation issued by United States Magistrate Judge David T.
Schultz on Nov. 9, 2023 ("November 9th R&R"). In the November 9th
R&R, Judge Schultz recommends that those motions to dismiss be
granted and these four cases be dismissed.
Judge Schultz found that the Plaintiffs' remaining causes of action
are all barred by claim preclusion, so he declined to reach the
parties' remaining arguments concerning issue preclusion. On Dec.
7, 2023, Mr. Goodwin and Mr. McRae filed objections to the R&R.
The Court reviews de novo any portion of the R&R to which specific
objections are made. In the absence of specific objections, the
Court reviews the R&R for clear error. Having carefully reviewed
the record in each of these cases, the Court overrules the
objections, accepts the R&R, and grants the Defendants' motions to
dismiss.
Plaintiffs Goodwin and McRae object to Judge Schultz's
recommendation that their unreasonable search and seizure and
invasion of privacy claims in COA 2 and 3 be dismissed. Judge
Schultz found that these claims are barred by the doctrine of claim
preclusion because they already were or could have been litigated
in Karsjens.
Judge Schultz found that the Plaintiffs' claims in these complaints
are based on the same factual predicates such that application of
claim preclusion is appropriate, and to the extent the claims are
slightly different, they would nevertheless be precluded because
the claims could have been raised before. Having reviewed the
record de novo on these matters, the Court finds no basis to
conclude otherwise, and therefore, these claims are subject to
dismissal.
Because the Plaintiffs' objections to the November 9th R&R's
handling of the remaining claims in COA 7, 9, and 15 are
non-specific, do not address the reasoning of the R&R, or both,
they are all subject to clear error review and the Court discusses
them together.
Judge Schultz recommended that the Plaintiffs' surviving claims in
COA 7--that MSOP has imposed punitive confinement policies--be
dismissed pursuant to claim preclusion. Judge Schultz painstakingly
compared the allegations from the Third Amended Complaint in
Karsjens to the complaints in these cases and identified the
allegations of punitive practices that were addressed in Karsjens.
He, then, concluded that these claims were barred because (1)
factual differences between the claims asserted in Karsjens and
those advanced these complaints did not avoid claim preclusion; (2)
the Plaintiffs claims here could have been raised in Karsjens; and
(3) the Plaintiffs do not argue that they were prevented in any way
from raising their claims in Karsjens.
The complaints in these cases include allegations challenging the
procedural safeguards that are unavailable in MSOP's disciplinary
hearings. In the November 9th R&R, Judge Schultz identified these
allegations in the Plaintiffs' complaints and noted their
similarities to the allegations in the Third Amended Complaint in
Karsjens, which alleged that MSOP detainees were unable to present
evidence, cross examine witnesses, or face their accusers and are
not given copies of the incident reports or other evidence that is
being used against them to impose disciplinary restrictions.
Judge Schultz concluded that the Plaintiffs' procedural due process
claims in COA 9 in these cases failed for two reasons. First, he
concluded that they fall alongside the punishment claims in COA 7,
because a determination that certain policies and practice are not
punishment necessarily involves a determination that those policies
and practices do not violate procedural due process. Second, Judge
Schultz found that claim preclusion bars these claims because they
arise from the same nucleus of operative facts as the claims
asserted in Karsjens, or they could have been asserted in that
litigation.
Judge Schultz found that the Fourteenth Amendment claim in COA 15
of the complaints, which is premised on the totality of conditions
of the Plaintiffs' confinement, was akin to the "wide-ranging
attack on the legality of nearly every operational feature of MSOP"
that was challenged in Karsjens. He, then, reasoned that having
already concluded that the conditions the Plaintiffs challenge
arise from the same nucleus of operative facts as Karsjens, it
follows that the totality of those conditions also involves the
same factual predicate and the claims in COA 15 were barred even
though they presented a new legal theory.
As noted, the Plaintiffs object to the recommendation that each of
these remaining claims be dismissed. However, Judge Menendez points
out that they make no specific objections to Judge Schultz's
recommendations concerning the application of claim preclusion to
the remaining claims in COA 7. The Plaintiffs similarly offer no
specific argument concerning Judge Schultz's conclusion that their
remaining procedural due process claims in COA 9 are barred by
claim preclusion. And their argument concerning the recommendation
that COA 15 be dismissed ignores Judge Schultz's claim preclusion
analysis.
As a result, the Court finds that all of these objections are
subject to clear error review. Having reviewed the November 9th R&R
for clear error with respect to these issues, the Court finds none
and accepts the recommendations that the remaining claims in COA 7,
9, and 15 be dismissed.
Finally, in the November 9th R&R, Judge Schultz addressed the
Plaintiffs' argument that their claims avoid claim preclusion
because they are asserting as-applied challenges to MSOP's policies
as opposed to the facial challenges that were raised in Karsjens.
Judge Schultz rejected this argument because Karsjens did, in fact,
involve as-applied challenges to the constitutionality of the
statutory scheme under which the Plaintiffs are civilly committed.
In addition, Judge Schultz found that the Plaintiffs failed to
sufficiently plead any asapplied challenge in these complaints
because they failed to assert that any MSOP policies and practices
uniquely affected them; rather, the complaints asserted that the
Plaintiffs are affected by the same MSOP policies and practices
applicable to all MSOP detainees.
Judge Menendez opines that the Plaintiffs' objections to this
aspect of the R&R fail to identify any error in Judge Schultz's
handling of this argument from their response to the motions to
dismiss, and having reviewed the record de novo, the Court finds no
basis to disagree with Judge Schultz's conclusion.
Based on the foregoing, Judge Menendez rules that:
1. The R&Rs in these cases: Bishop v. Swanson, No. 12-cv-135;
Goodwin v. Swanson, No. 12-cv-180; McRae v. Swanson,
No. 12-cv-221; Mosby v. Swanson, No. 12-cv-320, are
accepted;
2. The Objections in Goodwin, 12-cv-180, are overruled;
3. The motions to dismiss are granted; and
4. The following matters are dismissed:
a. Bishop v. Swanson, No. 12-cv-135;
b. Goodwin v. Swanson, No. 12-cv-180;
c. McRae v. Swanson, No. 12-cv-221; and
d. Mosby v. Swanson, No. 12-cv-320.
A full-text copy of the Court's Order dated Jan. 29, 2024, is
available at http://tinyurl.com/2x9u95nrfrom PacerMonitor.com.
NANOGATE NORTH: Fails to Pay Proper Wages, Moyer Alleges
--------------------------------------------------------
CHANCE MOYER, individually and on behalf of all others similarly
situated, Plaintiff v. NANOGATE NORTH AMERICA, LLC, Defendant, Case
No. 1:24-cv-00304 (N.D. Ohio, Feb. 16, 2024) seeks to recover from
the Defendants unpaid wages and overtime compensation, interest,
liquidated damages, attorneys' fees, and costs under the Fair Labor
Standards Act.
Plaintiff Moyer was employed by the Defendant as a manufacturing
employee.
NANOGATE NORTH AMERICA LLC operates in the general purpose
machinery manufacturing industry. [BN]
The Plaintiff is represented by:
Matthew S. Grimsley, Esq.
Anthony J. Lazzaro, Esq.
Lori M. Griffin, Esq.
THE LAZZARO LAW FIRM, LLC
The Heritage Building, Suite 250
34555 Chagrin Boulevard
Moreland Hills, OH 44022
Telephone: (216) 696-5000
Facsimile: (216) 696-7005
Email: matthew@lazzarolawfirm.com
anthony@lazzarolawfirm.com
lori@lazzarolawfirm.com
NAUTIC PARTNERS: Fails to Prevent Data Breach, Durr Alleges
-----------------------------------------------------------
ALLISON DURR, individually and on behalf of all others similarly
situated, Plaintiff v. NAUTIC PARTNERS, LLC, Defendant, Case No.
1:24-cv-00062-WES-LDA (D.R.I., Feb. 9, 2024) arises from
Defendant's failure to protect highly sensitive data.
According to the Plaintiff in the complaint, the Defendant stores a
litany of highly sensitive personal identifiable information
("PII") and protected health information ("PHI")—together
"PII/PHI"—about its current and former employees and/or
customers. Cybercriminals were able to breach the Defendant's
systems because the Defendant failed to adequately train its
employees on cybersecurity and failed to maintain reasonable
security safeguards or protocols to protect the Class's PII/PHI.
The Defendant's failures placed the Class's PII/PHI in a vulnerable
position—rendering them easy targets for cybercriminals, says the
suit.
Nautic Partners, LLC operates as a private equity firm. The Company
focuses on healthcare, industrial products, and outsourced services
sectors. [BN]
The Plaintiff is represented by:
Anthony R. Leone, II, Esq.
LEONE LAW LLC
1345 Jefferson Boulevard
Warwick, RI 02886
Telephone: (401) 921-6684
Facsimile: (401) 921-6686
Email: aleone@leonelawllc.com
- and -
Samuel J. Strauss, Esq.
Raina Borrelli, Esq.
TURKE & STRAUSS LLP
613 Williamson Street, Suite 201
Madison, WI 53703
Telephone: (608) 237-1775
Facsimile: (608) 509-4423
Email: sam@turkestrauss.com
raina@turkestrauss.com
NEW YORK UNIVERSITY: Reply to Opposition Brief Due March 1
----------------------------------------------------------
In the class action lawsuit captioned as John Doe v. New York
University, Case No. 1:23-cv-10515 (S.D.N.Y., Filed Dec. 1, 2023),
the Hon. Judge Vernon S. Broderick entered an order granting letter
motion to expedite.
-- The parties' joint request to modify the motion to dismiss
briefing schedule is granted.
-- The Court adopts the proposed deadlines.
-- Additionally, the Plaintiff filed a motion for class
certification. The parties shall meet and confer on proposed
briefing schedules for that motion.
-- In the alternative, the Defendant shall file its opposition
brief
by Feb. 20, 2024.
-- The Plaintiff shall file his reply, if any, by March 1, 2024.
The nature of suit states Civil Rights -- Education.[CC]
NYU is a private, global, non-sectarian and not-for-profit
institution of higher education.[CC]
NIKE RETAIL: Objections to Discovery Order Overruled in Cruz Suit
-----------------------------------------------------------------
In the class action lawsuit captioned as ADRIANA CRUZ, et al, v.
NIKE RETAIL SERVICES, Case No. 3:23-cv-00874-L-KSC (S.D. Cal.), the
Hon. Judge M. James Lorenz entered an order overruling the
Defendant's objections to discovery order:
The Plaintiffs raise eleven causes of action in the Complaint
against Defendant Nike for wage and hour violations. The Plaintiff
and Defendant filed Joint Status Reports and Joint Motions for
Determination of Discovery Dispute on December 8, 2023.
The Parties' agreement to a 10% sample of the putative class was
contingent on a representation by Defendant that the sample would
be sufficient for making a class certification determination and
Defendant's compromise with Plaintiff about a "statistically
significant" sample size, which did not happen.
Nike Retail was founded in 1985. The Company's line of business
includes the retail sale of men's, women's and children's
footwear.
A copy of the Court's order dated Jan. 25, 2024 is available from
PacerMonitor.com at https://urlcurt.com/u?l=PQEgrX at no extra
charge.[CC]
NORPLUS INDUSTRIES: Fails to Pay Proper Wages, Balderas Alleges
---------------------------------------------------------------
ANGELICA BALDERAS, individually and on behalf of all others
similarly situated, Plaintiff v. NORPLUS INDUSTRIES, INC.,
Defendant, Case No. 3:24-cv-00263 (N.D. Ohio, Feb. 12, 2024) seeks
to recover from the Defendants unpaid wages and overtime
compensation, interest, liquidated damages, attorneys' fees, and
costs under the Fair Labor Standards Act.
Plaintiff Balderas was employed by the Defendant as a production
employee.
NORPLAS INDUSTRIES INC. was founded in 1996. The Company's line of
business includes manufacturing automotive stamping products. [BN]
The Plaintiff is represented by:
Daniel I. Bryant, Esq.
BRYANT LEGAL, LLC
4400 N. High St., Suite 310
Columbus, OH 43214
Telephone: (614) 704-0546
Facsimile: (614) 573-9826
Email: dbryant@bryantlegalllc.com
- and -
Esther E. Bryant, Esq.
BRYANT LEGAL, LLC
3450 W Central Ave., Suite 370
Toledo, OH 43606
Telephone: (419) 824-4439
Facsimile: (419) 932-6719
Email: Mbryant@bryantlegalllc.com
Ebryant@bryantlegalllc.com
- and -
Joseph F. Scott, Esq.
Ryan A. Winters, Esq.
SCOTT & WINTERS LAW FIRM, LLC
50 Public Square, Suite 1900
Cleveland, OH 44113
Telephone: (216) 912-2221
Facsimile: (440) 846-1625
Email: jscott@ohiowagelawyers.com
rwinters@ohiowagelawyers.com
- and -
Kevin M. McDermott II, Esq.
SCOTT & WINTERS LAW FIRM, LLC
11925 Pearl Rd., Suite 310
Strongsville, OH 44136
Telephone: (216) 912-2221
Facsimile: (440) 846-1625
Email: kmcdermott@ohiowagelawyers.com
NORTHWELL HEALTH: Has Until March 1 to Answer Vetere's Complaint
----------------------------------------------------------------
In the lawsuit entitled RICHARD VETERE, individually and on behalf
of all others similarly situated, Plaintiff v. NORTHWELL HEALTH,
INC. and PERRY JOHNSON & ASSOCIATES, INC., Defendants, Case No.
2:23-cv-01900-RFB-DJA (D. Nev.), Magistrate Judge Daniel J.
Albregts of the U.S. District Court for the District of Nevada
grants the parties' stipulation and extending the Defendants' time
to respond to the Plaintiff's complaint until March 1, 2024.
Plaintiff Richard Vetere, individually and on behalf of all others
similarly situated, and Defendants Perry Johnson & Associates, Inc.
("PJ&A") and Northwell Health, Inc. stipulate and request under
Local Rule IA 6 that the Court extend the time for the Defendants
to respond to the Plaintiff's complaint in the action (the
"Complaint") until March 1, 2024.
The Plaintiff filed the Complaint on Nov. 17, 2023, and served PJ&A
on Nov. 21, 2023. Northwell executed a waiver of service that was
entered on Nov. 28, 2023. On Dec. 8, 2023, a Motion for Transfer of
Actions to the United States District Court for the District of
Nevada for Coordinated or Consolidated Pretrial Proceedings
Pursuant to 28 U.S.C. Section 1407 (the "Motion") was filed in the
Judicial Panel on Multidistrict Litigation ("JPML") (In re Perry
Johnson & Associates Medical Transcription Data Security Breach
Litigation, Case MDL No. 3096, ECF No. 1 (Dec. 8, 2023)). The
motion directly concerns the potential consolidation and transfer
of at least 45 related putative class action complaints. The JPML
heard oral arguments on the Motion on Jan. 25, 2024.
The Defendants' individual responses were due on Jan. 29, 2024.
This extension is necessary to allow the JPML sufficient time to
evaluate the various related actions, twenty-one of which have been
filed in this District alone. A list of these related actions is
included in Appendix A. As nearly every party has agreed that
centralization is proper, the primary question for the JPML is
where to centralize the cases, not whether to centralize them.
Judge Albregts notes that the Plaintiff and the Defendants consent
to this request. This is the first request for extension of time
for this deadline. The parties submit that there is good cause for
this extension and the requested extension is not for the purpose
of delay.
The Court grants the Parties' stipulation. The Defendants will have
up to and including March 1, 2024, to respond to the Plaintiff's
complaint.
A full-text copy of the Court's Stipulation and Order dated Jan.
29, 2024, is available at http://tinyurl.com/bde5a7pbfrom
PacerMonitor.com.
STRANCH, JENNINGS & GARVEY, PLLC, Nathan R. Ring --
nring@stranchlaw.com -- in Las Vegas, Nevada 89102; NUSSBAUM LAW
GROUP, P.C., Linda P. Nussbaum -- lnussbaum@nussbaumpc.com -- in
New York City, Counsel for the Plaintiff and Putative Class.
SNELL & WILMER LLP, Alex L. Fugazzi -- afugazzi@swlaw.com -- Aleem
A. Dhalla -- Adhalla@swlaw.com -- in Las Vegas, Nevada 89169-5958;
ROPES & GRAY LLP, William L. Roberts --
william.roberts@ropesgray.com -- Kathryn E. Caldwell --
kathryn.caldwell@ropesgray.com -- Andrew B. Cashmore --
andrew.cashmore@ropesgray.com -- in Boston, Massachusetts
02199-3600; ROPES & GRAY LLP, Glen J. Dalakian II --
glen.dalakian@ropesgray.com -- in New York City, Counsel for
Defendant Northwell Health, Inc.
COZEN O'CONNOR, Jonathan A. Rich -- jarich@cozen.com -- in Las
Vegas, Nevada 89107, Counsel for Defendant Perry Johnson &
Associates, Inc.
OTAY LAKES: S.D. California Tosses Renn's First Amended Complaint
-----------------------------------------------------------------
In the lawsuit titled ALBERT RENN, on behalf of himself, all others
similarly situated, and the general public, Plaintiff v. OTAY LAKES
BREWERY, LLC, Defendant, Case No. 3:23-cv-01139-GPC-BLM (S.D.
Cal.), Judge Gonzalo P. Curiel of the U.S. District Court for the
Southern District of California issued an order granting in part
and denying in part the Defendant's motion to dismiss the
Plaintiff's first amended complaint with leave to amend.
Before the Court is the Defendant's motion to dismiss the first
amended complaint pursuant to Federal Rules of Civil Procedure
12(b)(1) and 12(b)(6). The Plaintiff filed an opposition on Nov. 9,
2023. The Defendant filed a reply on Aug. 25, 2023. A hearing was
held on Jan. 26, 2024.
On June 20, 2023, Plaintiff Albert Renn filed a purported class
action complaint against Defendant Otay Lakes Brewery, LLC,
alleging deceptive and fraudulent marketing of its alcoholic "Nova
Kombucha" (the "Product") as "good for you" and promoting "health,
balance and goodness." On Sept. 14, 2023, the Court sua sponte
dismissed the complaint for lack of subject matter jurisdiction
with leave to amend and denied the Defendant's motion to dismiss as
moot.
On Sept. 28, 2023, the Plaintiff filed a first amended complaint
("FAC"). In the FAC, the Plaintiff claims that the Defendant's
labeling of Nova Kombucha as "good for you" and promoting "health,
balance and goodness" are false and misleading because it contains
6-8% alcohol by volume and consuming alcohol causes a wide variety
of short and long-term health risks and problems. Moreover, the
Plaintiff claims it is misleading to suggest that the Products are
healthier than any other alcoholic beverages or hard kombuchas.
Traditional kombucha is a fermented tea that has gained a
reputation as being healthy because it has been promoted as having
a broad range of health benefits such as "supporting gut health,
boosting immunity and energy, reducing cravings and inflammation
and promoting general overall health." Traditional kombucha has a
small amount of alcohol (0.5% or less) from fermentation but hard
kombucha has a 10-15 times higher alcohol percentage ranging around
4-8% alcohol by volume.
Due to kombucha's health benefits that have gained popularity,
alcohol manufacturers, such as the Defendant, have added alcohol to
kombucha, and the market for hard kombucha has recently grown
dramatically. In 2020, hard kombucha sales grew 2,134 percent over
the previous year.
The Defendant markets Nova Kombucha by leveraging consumers'
preferences for healthy beverages. It advertises the Products on
billboards around San Diego with the phrase "Your Happy Healthy
Hour." The billboard artwork is also displayed on the LinkedIn page
of Tiago Carneiro, a founder of OLB. Through its labeling, the
Defendant promotes the Products as healthy, or at least healthier
than they really are, and healthier than competing products.
The Plaintiff complains that these health and wellness messages
convey that Nova Kombucha, despite containing alcohol, is
nevertheless "good for you," "healthy" and "balanced," as well as
healthier than similar alcoholic beverages. He contends that these
statements are false and misleading because Nova Kombucha contains
six to eight percent alcohol by volume and any alcohol consumption
harms health by causing cancer and other chronic diseases. He
started purchasing various flavors of Nova Kombucha once a month
starting around 2022 from local stores, such as Vons and Ralphs.
The Plaintiff asserts that he reasonably relied on the labeling
claims, which were intentionally placed in order to induce
consumers into purchasing the Products. He claims he would not
have purchased or would not have been willing to pay as much for
the Products if he knew the labeling claims were false and
misleading. He would purchase the Products in the future, but
without an injunction he may not be able to tell whether the
Products are reformulated in such a way that makes the
representations true.
In his complaint, the Plaintiff alleges causes of action under 1)
California's Unfair Competition Law, ("UCL"), California Business &
Professions Code sections 17200, et seq.; 2) California's False
Advertising Law, ("FAL"), California Business & Professions Code
sections 17500, et seq.; 3) California's Consumers Legal Remedies
Act ("CLRA"), California Civil Code sections 1750, et seq.; 4)
California Commercial Code section 2313(1) for breach of express
warranties; 5) California Commercial Code section 2314 for breach
of the implied warranty of merchantability; 6) negligent
representation; 7) intentional misrepresentation; and 8) unjust
enrichment.
The Defendant raises two challenges to the CLRA, FAL, and UCL
claims. First, the Defendant argues that the challenged health
statements are non-actionable puffery as they are nonspecific
assertions about "things" "get[ting] a lot more interesting" and
"life getting pretty brilliant, pretty quickly" that cannot be
proven true or false.
In light of the cited precedents and at the motion to dismiss
stage, the Court denies the Defendant's motion to dismiss the
California consumer fraud statutes based on the argument that the
challenged statements are non-actionable puffery.
Second, the Defendant argues the consumer fraud claims should be
dismissed because the Plaintiff has not plausibly alleged that the
challenged statements on the Products are likely to deceive
reasonable consumers because the Surgeon General's alcohol warning
is written right below the challenged statements.
At this stage, Judge Curiel says, there is a factual dispute, not
amenable to a motion to dismiss, about whether the statements "good
for you" and "health, balance" alongside the Surgeon General's
warning could mislead reasonable consumers into believing the
Products are healthy.
Even though the Surgeon General's warning is right below the
challenged statements, the Court concludes that this is not one of
the "rare situations" where granting a motion to dismiss is
appropriate because it cannot conclude, as a matter of law, that no
reasonable consumer would be misled by the labels at issue.
Lastly, the Defendant asserts that the Plaintiff lacks standing to
pursue injunctive relief because he cannot establish a likelihood
of future harm because he now knows the Products contain alcohol
and the potential harm of consuming alcohol. Moreover, it contends
that even if the Defendant were to eliminate its alcoholic line of
kombucha and only sell traditional kombucha, the Plaintiff cannot
plausibly allege future harm.
Recognizing the Court cannot impose a mandatory injunction
requiring the Defendant to reformulate its products, the Plaintiff
seeks to amend the FAC to allege that "reformulated" means
"relabeled" if the Court were to grant dismissal of injunctive
relief.
The Court also notes that the FAC does not pursue a mandatory
injunction requiring the Defendant to reformulate the Products but
instead seeks to have the Products labeled correctly without any
misleading or deceptive advertising. Therefore, the Court construes
"reformulated" to mean "relabeled" in the FAC.
Despite construing "reformulated" to mean "relabeled", the Court
finds the facts, as alleged, are distinguishable from Davidson v.
Kimberly-Clark Corp., 889 F.3d 956, 969 (9th Cir. 2018), and
concludes that the Plaintiff has not plausibly alleged a real or
immediate threat of repeated injury in the future concerning the
representation that the Products are "healthy."
Judge Curiel opines that the Plaintiff cannot plausibly allege he
will purchase the Products in the future if labeled correctly. In
other words, even if the health and wellness representations were
removed, he will not likely purchase the Products since he was
looking for a "healthy" kombucha drink. Furthermore, the Plaintiff
has not plausibly alleged a desire or intent to purchase the
Products with their levels of alcohol.
Based on the Plaintiff's allegations, the Court grants the
Defendant's motion to dismiss the injunctive relief claim based on
the representations that the Products are "healthy" for lack of
standing.
At the hearing, the Plaintiff requested leave to amend to clarify
the allegations in the FAC. Because leave to amend would not be
futile, the Court grants the Plaintiff leave to file a second
amended complaint.
Based on the reasoning in this Order, the Court grants in part and
denies in part the Defendant's motion to dismiss. The Plaintiff
must file a second amended complaint within 21 days of the filed
date of this order.
A full-text copy of the Court's Order dated Jan. 29, 2024, is
available at http://tinyurl.com/3vu4emh8from PacerMonitor.com.
PERMIAN RESOURCES: Beaumont Sues Over Shale Oil Monopoly
--------------------------------------------------------
RICHARD BEAUMONT, individually and on behalf of all others
similarly situated, Plaintiff v. PERMIAN RESOURCES CORP. f/k/a
CENTENNIAL RESOURCE DEVELOPMENT, INC.; CHESAPEAKE ENERGY
CORPORATION; CONTINENTAL RESOURCES INC.; DIAMONDBACK ENERGY, INC.;
EOG RESOURCES, INC.; HESS CORPORATION; OCCIDENTAL PETROLEUM
CORPORATION; and PIONEER NATURAL RESOURCES COMPANY, Defendants,
Case No. 2:24-cv-00298 (D. Nev., Feb. 12, 2024) is a class action
arising from a conspiracy among the largest U.S. shale oil
producers to coordinate and constrain U.S. shale oil production, a
conspiracy which has had the purpose and effect of fixing, raising,
and maintaining the price of crude oil in and throughout the US at
supracompetitive levels, and which, as a direct result, has had the
effect of increasing the price of home heating oil.
According to the Plaintiff in the complaint, the Defendants'
conspiracy, which limited each of their respective shale oil
production, had the purpose and effect of fixing, stabilizing, or
maintaining crude oil prices—and, in turn, HHO prices, at
artificially inflated levels throughout the US during the Class
Period.
The cartel formed by the Defendants' conspiracy is a per se
unlawful restraint of trade under not only federal antitrust law,
but also under numerous state antitrust, unfair competition, and
consumer protection laws. Plaintiff and the members of the proposed
Classes suffered substantial harm by virtue of the supracompetitive
prices they paid for HHO as a direct and proximate result of the
alleged cartel and its members' agreement to constrain U.S. shale
oil production, says the suit.
PERMIAN RESOURCES CORPORATION operates as an oil and gas company.
The Company focuses on the development of unconventional oil and
associated liquid-rich natural gas reserves in the Permian Basin,
as well as offers geology, engineering, and drilling services.
[BN]
The Plaintiff is represented by:
Robert F. Purdy, Esq.
LAW OFFICE OF ANDREW M. LEAVITT, ESQ.
633 South 7th Street
Las Vegas, NV 89101
Telephone: (702) 382-2800
Facsimile: (702) 382-7438
Email: robert.purdy@andrewleavittlaw.com
- and -
Daniel L. Warshaw, Esq.
Bobby Pouya, Esq.
PEARSON WARSHAW, LLP
15165 Ventura Boulevard, Suite 400
Sherman Oaks, CA 91403
Telephone: (818) 788-8300
Facsimile: (818) 788-8104
Email: dwarshaw@pwfirm.com
bpouya@pwfirm.com
RECEIVABLES PERFORMANCE: Must Answer Hightower Suit by March 29
---------------------------------------------------------------
In the lawsuit titled BERNADETTE HIGHTOWER, LATERSHIA JONES, GEORGE
DEAN, and BRUCE MARK WOODRUFF, individually and on behalf of all
others similarly situated, Plaintiffs v. RECEIVABLES PERFORMANCE
MANAGEMENT, LLC, Defendant, Case No. 2:22-cv-01683-RSM (W.D.
Wash.), Judge Ricardo S. Martinez of the U.S. District Court for
the Western District of Washington, Seattle, signed the Parties'
Stipulation and Order extending the time for the Defendant to
answer to the complaint to March 29, 2024.
Pursuant to Local Rules 7(j) and 10(g), Plaintiffs Bernadette
Hightower, Latershia Jones, George Dean, and Bruce Mark Woodruff,
individually and on behalf of all others similar situated and
Defendant Receivables Performance Management, LLC, submit a
stipulated motion for an extension of time for the Defendant to
answer, move or otherwise respond to the Plaintiffs' Consolidated
Amended Class Action Complaint and for an extension of time to
submit Initial Disclosures and Joint Status Report and Discovery
Plan.
The Plaintiffs filed their Amended Consolidated Class Action
Complaint on May 4, 2023. The Defendant's current due date for
responding to the Consolidated Class Action Complaint was Jan. 27,
2024.
Additionally, the Court has set the following deadlines for initial
disclosures and submission of the Joint Status Report and Discovery
Plan: 1) Deadline for FRCP 26(f) Conference: Feb. 1, 2024; (2)
Initial Disclosures Pursuant to FRCP 26(a)(1): Feb. 8, 2024; and
(3) Combined Joint Status Report and Discovery Plan as required by
FRCP 26(f) and Local Civil Rule 26(f): Feb. 15, 2024.
As set forth in the Parties' motion to amend complaint and for an
extension of time for the Defendant to respond to the Amended
Consolidated Class Action Complaint, the Parties agreed to discuss
the possibility of an early resolution, including the exchange of
information to allow the Parties to evaluate the strengths and
weaknesses of the Plaintiffs' claims and the Defendant's defenses,
as well as the scheduling of a mediation before Hon. Wayne Andersen
(Ret.). This mediation was conducted on July 12, 2023.
The Parties continue to discuss early resolution of this matter
with the assistance of Hon. Wayne Anderson (Ret.). Following the
last mediation session, the Parties exchanged significant
documentation to assist in the potential early resolution of this
matter, and the Parties continue to exchange further documentation
following the initial exchange to assist in the potential early
resolution of this matter. Mediator Hon. Wayne Andersen (Ret.)
continues to be involved and continues to facilitate the Parties'
efforts to resolve the matter, and the Parties are considering
whether a further mediation session with Hon. Andersen is warranted
to assist the parties in achieving a resolution of this matter.
In light of this, the Parties stipulate and agree that good cause
exists for an extension as stipulated herein and that it would be
beneficial to further extend the time for the Defendant to answer,
move, or otherwise respond to the Plaintiffs' Consolidated Amended
Complaint.
The Parties stipulate and agree that the Defendant will have an
extension of time up to and including March 29, 2024, to answer,
move, or otherwise respond to the Plaintiffs' Consolidated Amended
Class Action Complaint.
Moreover, the Parties stipulate and agree that the deadlines for
initial disclosures and submission of the Joint status Report and
Discovery Plan be extended as follows: (1) Deadline for FRCP 26(f)
Conference: April 5, 2024; (2) Initial Disclosures Pursuant to FRCP
26(a)(1): April 12, 2024; and (3) Combined Joint Status Report and
Discovery Plan as Required by FRCP 26(f) and Local Civil Rule
26(f): April 19, 2024.
A full-text copy of the Court's Stipulation and Order dated Jan.
29, 2024, is available at http://tinyurl.com/bdfsvea2from
PacerMonitor.com.
TOUSLEY BRAIN STEPHENS PLLC -- Kaleigh N. Boyd -- kboyd@tousley.com
-- in Seattle, Washington 98101-3147, Interim Liaison Counsel.
Bryan L. Bleichner -- bbleichner@chestnutcambronne.com -- Philip
Krzeski -- pkrzeski@chestnutcambronne.com -- CHESTNUT CAMBRONNE PA,
in Minneapolis, Minnesota 55401; John A. Yanchunis --
jyanchunis@ForThePeople.com -- Ryan D. Maxey --
rmaxey@ForThePeople.com -- MORGAN & MORGAN COMPLEX, in Tampa,
Florida 33602, Interim Co-Lead Counsel.
GORDON REES SCULLY MANSUKHANI, LLP -- Sarah Turner --
sturner@grsm.com -- in Seattle, Washington 98104; Brian E.
Middlebrook -- bmiddlebrook@grsm.com -- John T. Mills --
jtmills@grsm.com -- in New York City, Attorneys for the Defendant.
ROBLOX CORPORATION: Noel Sues Over Deceptive Commercial Ads
-----------------------------------------------------------
RAYMOND NOEL; and LAURA NOEL, individually and on behalf of all
others similarly situated, Plaintiffs v. ROBLOX CORPORATION,
Defendant, Case No. 3:24-cv-00963 (N.D. Cal., Feb. 16, 2024)
alleges violation of the California False Advertising Law.
According to the Plaintiff in the complaint, not only is Roblox a
dangerous platform for children because of predatory conduct from
adult users, including simulated violence and sexual activity, but
it is also designed to harm children with addictive conduct and
deceptive commercial advertising.
Specifically, Roblox has built its entire platform around profiting
from the creative development of its users—most of whom are
children—and exploiting their labor for Roblox's own profit, says
the suit.
ROBLOX CORPORATION provides entertainment products and services.
The Company designs and develops a wide range of online games such
as internet three-dimensional and tutorial games for kids, teens,
and adults. [BN]
The Plaintiff is represented by:
Rachel Minder, Esq.
Leslie Pescia, Esq.
BULLOCK WARD MASON, LLC
3350 Riverwood Pkwy SE Suite 1900
Atlanta, GA 30339
Telephone: (833) 296-5291
Email: rachel@bwmlaw.com
leslie@bwmlaw.com
- and -
Jennifer S. Czeisler, Esq.
STERLINGTON PLLC
One World Trade Center 85th Floor
New York, NY 10007
Telephone: (212) 433-2993
Email: jen.czeisler@sterlingtonlaw.com
RYZE INC: Younger Suit Removed to C.D. California
-------------------------------------------------
The case captioned as Jessica Younger, individually, on behalf of
all similarly situated, and on behalf of the general public of
California v. RYZE INC., a Massachusetts corporation, erroneously
sued as Ryze Superfoods LLC, Case No. 2023STCV27561 was removed
from the Superior Court of the State of California for the County
of Los Angeles, to the U.S. District Court for the Central District
of California on Feb. 1, 2024, and assigned Case No.
2:24-cv-00868.
The State Court Action is a putative class action in which
Plaintiff alleges that Ryze failed to adequately disclose all
material terms of its autorenewal program in close proximity to the
mechanism that the company used to obtain consent to those terms.
More specifically, Plaintiff alleges that Ryze's failure to
disclose the complete terms of its autorenewal program on the
checkout page, as opposed to elsewhere in the enrollment path,
misled Plaintiff into purchasing products on subscription. The
Plaintiff further alleges that she represents a class of consumers
who were similarly misled into enrolling in Ryze's autorenewal
program. The Plaintiff claims that Ryze's advertising and
disclosure practices violate California's Automatic Renewal Law,
which gives rise to liability under California's Consumer Legal
Remedies Act and Unfair Competition Law.[BN]
The Defendants are represented by:
Ryan M. Poteet, Esq.
Timothy K. Branson, Esq.
GORDON REES SCULLY MANSUKHANI LLP
633 West Fifth Street, 52nd Floor
Los Angeles, CA 90071
Phone: (213) 576-5000
Facsimile: (213) 680-4470
Email: rpoteet@grsm.com
tbranson@grsm.com
SAN DIEGO DIALYSIS: Watson Suit Removed to S.D. California
----------------------------------------------------------
The case captioned as Devan Watson, an individual, on behalf of
herself and on behalf of all persons similarly situated v. SAN
DIEGO DIALYSIS SERVICES, INC., a Corporation; and DOES 1 through
50, inclusive, Case No. 37-2023-00048609-CU-OE-CTL was removed from
the Superior Court of the State of California for the County of San
Diego, to the U.S. District Court for the Southern District of
California on Feb. 2, 2024, and assigned Case No.
3:24-cv-00228-BEN-JLB.
The Complaint asserts nine causes of action, all brought as class
claims, based on alleged violations of California wage and hour
laws, namely: unpaid minimum and straight time wages, unpaid
overtime wages, failure to provide meal periods, failure to
authorize and permit rest periods, failure to timely pay final
wages at termination, failure to provide accurate itemized wage
statements, failure to reimburse business expenses, failure to pay
proper sick pay, and violation of Cal. Bus. & Prof. Code and unfair
business practices all in violation of the California Labor
Code.[BN]
The Defendants are represented by:
David H. Stern, Esq.
Alex E. Spjute, Esq.
Jennifer F. Delarosa, Esq.
BAKER & HOSTETLER LLP
11601 Wilshire Boulevard, Suite 1400
Los Angeles, CA 90025-0509
Phone: 310.820.8800
Facsimile: 310.820.8859
Email: dstern@bakerlaw.com
aspjute@bakerlaw.com
7jdelarosa@bakerlaw.com
SAN GABRIEL TEMPORARY: Acio Files Suit in Cal. Super. Ct.
---------------------------------------------------------
A class action lawsuit has been filed against San Gabriel Temporary
Staffing Services LLC, et al. The case is styled as Brian Acio, an
individual, on behalf of himself, and on behalf of all persons
similarly situated v. San Gabriel Temporary Staffing Services LLC
dba LaborMax Staffing, a California limited liability company, Case
No. STK-CV-UOE-2024-0001294 (Cal. Super. Ct., San Joaquin Cty.,
Feb. 1, 2024).
The case type is stated as "Unlimited Civil Other Employment."
San Gabriel Temporary Staffing Services LLC doing business as
LaborMAX -- https://www.labormax.net/ -- analyzes your needs and
provides you with employees that add value to your business,
turning your "dream team" into a reality.[BN]
The Plaintiff is represented by:
Shani O. Zakay, Esq.
ZAKAY LAW GROUP, APLC
5440 Morehouse Dr., Ste. 3600
San Diego, CA 92121-6720
Phone: 619-255-9047
Fax: 858-404-9203
Email: shani@zakaylaw.com
SCHWAN'S CONSUMER: Thompson Suit Removed to S.D. New York
---------------------------------------------------------
The case captioned as Cassandra Thompson, individually and on
behalf of all others similarly situated v. SCHWAN'S CONSUMER
BRANDS, INC, Case No. 159215/2023 was removed from the Supreme
Court of the State of New York, County of New York, to the U.S.
District Court for the Southern District of New York on Feb. 5,
2024, and assigned Case No. 1:24-cv-00831-CM.
On September 17, 2023, Plaintiff Cassandra Thompson, on behalf of
herself and others similarly situated, filed a putative Class
Action Complaint (the "Complaint") in the State Court Action. The
Complaint asserts claims for unfair and deceptive practices under
New York General Business Law, misbranding under Agricultural and
Markets Law and breach of express warranty. Plaintiff seeks an
award of monetary damages.[BN]
The Defendants are represented by:
August T. Horvath, Esq.
Mital B. Patel, Esq.
FOLEY HOAG LLP
1301 Sixth Avenue, 25th Floor
New York, NY 10019
Phone: (212) 812-0400
Fax: (212) 812-0399
Email: ahorvath@foleyhoag.com
mpatel@foleyhoag.com
SECURED MARKETING: Heidarpour Files TCPA Suit in D. Arizona
-----------------------------------------------------------
A class action lawsuit has been filed against Secured Marketing
Concepts Corporation. The case is styled as Fred Heidarpour,
individually and on behalf of all others similarly situated v.
Secured Marketing Concepts Corporation doing business as: Pacific
One Lending, Case No. 2:24-cv-00239-JJT (D. Ariz., Feb. 5, 2024).
The lawsuit is brought over alleged violation of the Telephone
Consumer Protection Act for Restrictions of Use of Telephone
Equipment.
Secured Marketing Concepts Corporation doing business as Pacific
One Lending and Real Estate -- https://www.pacific1lending.com/ --
provides home loans and real estste services.[BN]
The Plaintiffs are represented by:
Patrick H. Peluso, Esq.
WOODROW & PELUSO, LLC
3900 East Mexico Avenue, Suite 300
Denver, CO 80210
Phone: (720) 213-0676
Fax: (303) 927-0898
Email: ppeluso@woodrowpeluso.com
- and -
Penny L. Koepke, Esq.
MAXWELL & MORGAN PC
Pierpont Commerce Center
4854 E Baseline Rd., Ste. 104
Mesa, AZ 85206
Phone: (480) 833-1001
Fax: (480) 969-8267
Email: pkoepke@hoalaw.biz
SERVICE FINANCIAL: Zettel's Bid to Amend Denied; Suit Dismissed
---------------------------------------------------------------
Judge Rebecca Grady Jennings of the U.S. District Court for the
Western District of Kentucky, Louisville Division, grants the
Defendant's motion to dismiss, and denies the Plaintiff's motion to
amend in the lawsuit styled ILIRIJANA SADE ZETTEL, Plaintiff v.
SERVICE FINANCIAL CO., Defendant, Case No. 3:23-cv-00116-RGJ (W.D.
Ky.).
The case comes before the Court on three pending motions. Defendant
Service Financial Co. ("SFC") moves to dismiss the action for lack
of subject matter jurisdiction and failure to state a claim.
Plaintiff Ilirijana Sade Zettel seeks leave to file an amended
complaint and moves to certify her constitutional challenge of the
Kentucky long-arm statute to the Kentucky Attorney General.
The case arises out of a Kentucky debt collection action brought
after Zettel defaulted on a vehicle retail installment sales
contract ("RISC"). In 2014, Zettel purchased a 2004 Pontiac Grand
Am from Belgray Auto Sales, Inc. in Louisville, Kentucky. Belgray
financed the purchase with a RISC. When Zettel later defaulted on
the debt, Belgray repossessed the vehicle and sold it at auction.
The remaining deficiency balance on the debt was then assigned to
SFC.
In 2018, SFC filed suit in Jefferson District Court to collect the
RISC's deficiency balance from Zettel, who was no longer a Kentucky
resident. Service of process was accomplished through the Kentucky
long-arm statute, K.R.S. 454.210, which provides for serving
out-of-state defendants. The Secretary of State sent the summons
and complaint to Zettel's North Dakota address via certified mail
and made return to the state court affirming that the requirements
of service had been accomplished.
Ms. Zettel did not receive the Secretary of State's service,
however, and the package was returned "unclaimed." A notice of the
failure to serve was filed in the state court record.
SFC secured a default judgment against Zettel, who had not answered
the complaint. SFC then garnished Zettel's wages to collect on the
default judgment.
Ms. Zettel has not moved in the state court to set aside the
default judgment. Instead, she brings this action, asserting claims
on behalf of herself and classes of other similarly situated
individuals, against SFC for violations of the Fair Debt Collection
Practices Act ("FDCPA"), unjust enrichment, wrongful garnishment,
and a request for declaratory relief stating that the Kentucky
long-arm statute is unconstitutional. She now seeks to amend the
complaint to add an additional Section 1983 claim against SFC.
Judge Jennings notes that any analysis of Zettel's FDCPA, Section
1983, unjust enrichment, and wrongful garnishment claims in this
Order applies with equal force to the corresponding class
allegations, which raise identical claims.
Ms. Zettel seeks to amend the complaint to add a Section 1983 claim
against SFC. The claim alleges that SFC violated her due process
rights by seeking to collect on a default judgment secured after
unconstitutional service of process. SFC argues that the motion
should be denied because the amendment would be futile.
Just as in Lugar v. Edmondson Oil Co., 457 U.S. 922, 937 (1982),
Judge Jennings says there are two ways to interpret Zettel's
Section 1983 claim against SFC: (1) as alleging SFC's misuse of the
Kentucky garnishment statute, or (2) as challenging the garnishment
statute as procedurally defective under the Fourteenth Amendment.
Judge Jennings holds that the first reading fails to state a claim
under Section 1983. The second reading concerns the garnishment
statute--a product of state action--and may be addressed in a
Section 1983 claim as long as the second element of the state
action requirement is also met.
The amended complaint alleges that the Lugar joint participation
test applies to SFC's actions. Lugar involved a Virginia law that
allowed attachment of the plaintiff's property based solely on an
ex parte petition by the defendant creditor--before any judgment
was issued in the underlying debt collection action. SFC executed
the garnishments to collect on the already-issued default
judgment.
Because this case involves a challenge to a post judgment
garnishment, Judge Jennings holds that Zettel is wrong to apply the
joint action test.
The question, therefore, becomes whether the amended complaint
alleges facts sufficient for the Court to draw the reasonable
inference that SFC may be treated as a state actor under any of the
enumerated tests.
Judge Jennings opines that the amended complaint fails to allege
any facts to support a finding that garnishment is a public
function exclusively reserved to the state. On the contrary, this
Court has repeatedly held that wage garnishment does not convert a
private party into a state actor.
As for the public function test, Judge Jennings notes that the
amended complaint does not allege that SFC acted under the coercive
power of the state. To the contrary, it alleges that SFC decided to
garnish Zettel's wages on their own accord.
Finally, the amended complaint alleges no facts from which the
Court could infer a nexus between SFC and the state. SFC merely
acted as a consumer within the state judicial system, which falls
far short of establishing "entwinement" with the public entity.
Judge Jennings holds that Zettel's Section 1983 claim would not
survive a motion to dismiss because the amended complaint does not
allege facts sufficient to find state action. Thus, the motion to
amend is denied for futility.
Because each of the Plaintiff's claims depends on a declaration by
this Court that the state default judgment is void, there is no way
for the Court to award the relief she seeks without voiding the
state judgment. Thus, the FDCPA, unjust enrichment, and wrongful
garnishment claims act as a trojan horse--concealing the real issue
of the state court judgment within them, Judge Jennings opines.
This amounts to an impermissible direct attack on a state court
judgment, Judge Jennings holds.
Zettel's final claim (Constitutional Claim) requests a declaration
that the Kentucky long-arm statute is "unconstitutional to the
extent that it allows for a defendant to be deemed served with
process upon service of a summons and complaint upon the Kentucky
Secretary of State when the Kentucky Secretary of State's attempted
actual service of the summons and complaint upon the defendant is
returned unclaimed."
In this case, Judge Jennings notes, the complaint does not allege
any facts demonstrating actual present harm or significant
possibility of future harm. The declaratory judgment action asks
the Court to hold that the Kentucky long arm statute is facially
unconstitutional. Zettel's injury occurred when she was served
under the allegedly unconstitutional statute.
Judge Jennings points out that this is an allegation of past
injury. Zettel gives the Court no reason to believe that she will
once again face service of process under the Kentucky long-arm
statute. This alone precludes standing, Judge Jennings points out.
However, even if Zettel had alleged a significant possibility of
future harm, Judge Jennings holds that the chain of events, which
would lead to her involvement in another civil action in Kentucky
state courts is highly conjectural. Because Zettel lacks standing
to bring the action, the Court need not consider whether to
exercise its discretion to consider the claim under the Declaratory
Judgment Act.
Having dismissed each of Zettel's individual claims for want of
jurisdiction, the Court also dismisses the corresponding class
allegations on the same grounds.
Having thus considered the parties' filings and the applicable law,
and being otherwise sufficiently advised, the Court orders as
follows:
(1) Plaintiff's motion to amend is denied;
(2) Defendant's motion to dismiss is granted;
(3) Plaintiff's motion to certify is denied as moot; and
(4) The Court will enter separate judgment.
A full-text copy of the Court's Memorandum Opinion & Order dated
Jan. 29, 2024, is available at http://tinyurl.com/y4h9unb2from
PacerMonitor.com.
VAXART INC: Seeks Sealing of Class Cert Docs in Himmelberg
----------------------------------------------------------
In the class action lawsuit captioned as Himmelberg v. Vaxart,
Inc., et al. (VAXART, INC. SECURITIES LITIGATION), Case No.
3:20-cv-05949-VC (N.D. Cal.), the Defendants ask the Court to enter
an order preliminarily sealing certain documents cited in support
of their Opposition to the Plaintiffs' Motion for Class
Certification, Appointment of Class Representatives, and
Appointment of Class Counsel, which were produced and/or designated
as confidential by the Plaintiffs, pending a final determination as
to whether such material should be sealed.
The materials provisionally filed under seal are as follows:
-- Exhibits B and C to the Declaration of Neal R. Marder in
Support
of Armistice Defendants' Opposition to Plaintiffs' Motion for
Class Certification, which are the deposition transcripts of
Lead
Plaintiff Langdon Elliot and Additional Plaintiff Ani
Hovhannisyan.
-- Exhibits F and G to the Marder Declaration, which are the
trading
records of Lead Plaintiff Langdon Elliot and Additional
Plaintiff
Ani Hovhannisyan.
-- The unredacted version of Armistice Defendants' Opposition to
Plaintiffs' Motion for Class Certification, which contains
references to the above-referenced exhibits.
A copy of the Defendants' motion dated Jan. 26, 2024 is available
from PacerMonitor.com at https://urlcurt.com/u?l=UB4M89 at no extra
charge.[CC]
The Defendants are represented by:
Neal R. Marder, Esq.
Joshua A. Rubin, Esq.
Sina Safvati, Esq.
Lillian Rand, Esq.
AKIN GUMP STRAUSS HAUER & FELD LLP
1999 Avenue of the Stars, Suite 600
Los Angeles, CA 90067
Email: nmarder@akingump.com
rubinj@akingump.com
ssafvati@akingump.com
lrand@akingump.com
VISION SERVICE: Class Settlement in Schmidt Suit Gets Initial Nod
-----------------------------------------------------------------
In the class action lawsuit captioned as MICHAEL SCHMIDT, on behalf
of himself and the Class and Collective members, v. VISION SERVICE
PLAN, et al., Case No. 2:20-cv-02400-KJN (E.D. Cal.), the Hon.
Judge Kendal J. Newman entered an order that:
1. The Plaintiff's motion for preliminary approval of class and
collective action settlement is granted;
2. The proposed notice of settlement is approved;
3. A fairness hearing is scheduled for July 2, 2024; and
Settlement Agreement Terms
-- The Defendants have agreed to pay a non-reversionary maximum
gross settlement amount of $3,450,000 to settle all claims in
the
amended complaint.
Class and Collective Definitions
-- An individual is eligible to share in the proposed settlement
if
he or she belongs to any of the following: 1) plaintiff; 2)
"California class members;" i.e., all current and former
employees of defendants who were employed as Customer Service
Representatives (CSRs) or equivalent positions in California
at
any time between December 2, 2016, and November 12, 2021; 2)
"PAGA Group;" i.e., all current and former employees of
defendants who were employed as CSRs or equivalent positions
in
California at any time between July 31, 2019, and November 12,
2021; and 3) "FLSA Collective Members;" i.e., all current and
former employees of defendants who were employed as CSRs or
equivalent positions in the United States at any time between
December 2, 2017, and November 12, 2021.
The Defendants are a vision care health insurance company. The
Plaintiff and settlement class members are approximately 1,800
current and former non-exempt Customer Service Representatives
(CSRs) in California and throughout the United States.
The Plaintiff alleges that defendants required class members to
perform significant amounts of off-the clockwork, including during
meal and rest breaks, as a matter of policy.
Vision is a vision care health insurance company.
A copy of the Court's order dated Jan. 26, 2024 is available from
PacerMonitor.com at https://urlcurt.com/u?l=DIRUPN at no extra
charge.[CC]
VITAL FARMS: Ct. Tosses Plaintiffs' Bid to Unseal Class Cert Docs
-----------------------------------------------------------------
In the class action lawsuit captioned as NICHOLAS A. USLER, ET AL.,
v. VITAL FARMS, INC., Case No. 1:21-cv-00447-RP (W.D. Tex.), the
Hon. Judge Mark Lane entered an order denying the Plaintiffs motion
to unseal their own motion for class certification by challenging
Defendant's confidentiality designations.
The Court said, "The Plaintiffs have not shown that the documents
at issue were improperly designated as Classified Information."
Accordingly, the court denies the Plaintiffs' motion to the extent
it seeks to de-designate the documents.
The Protective Order -- that Plaintiffs agreed to -- generously
allows a party to designate most non-public information as
Classified Information.
The Plaintiffs also argue the information at issue does not meet
the Fifth Circuit's standard for sealing documents.
Accordingly, the court grants in part and denies in part the
Plaintiffs' Challenge to Confidentiality Designations and Motion to
Unseal Unredacted Motion for Class Certification and Defendant's
Motion to Preserve Confidentiality Designations as follows:
-- The Defendant's designated Classified Information remains so
designated;
-- The Plaintiffs may refile their motion for class certification
publicly with no redactions;
-- The Plaintiffs may refile the exhibits to their motion for
class
certification as agreed to by Defendant; and
-- The Plaintiffs may re-raise the issue of unsealing the
remaining
exhibits after the motion for class certification is decided.
-- The court strongly encourages the parties to draft their
pleadings and motions in such a way that only exhibits need to be
sealed.
Vital Farms is a Certified B Corporation that offers a range of
ethically produced foods nationwide.
A copy of the Court's order dated Jan. 26, 2024 is available from
PacerMonitor.com at https://urlcurt.com/u?l=L8q6SK at no extra
charge.[CC]
WASHINGTON NEWSPAPER: Court Dismisses Pileggi's Amended Complaint
-----------------------------------------------------------------
In the lawsuit titled NICOLE PILEGGI, Plaintiff v. WASHINGTON
NEWSPAPER PUBLISHING COMPANY, LLC, Defendant, Case No.
1:23-cv-00345-BAH (D.D.C.), Chief Judge Beryl A. Howell of the U.S.
District Court for the District of Columbia dismisses the
Plaintiff's amended complaint, without prejudice.
Plaintiff Nicole Pileggi brings this putative class action against
Defendant Washington Newspaper Publishing Company, LLC, publisher
of the Washington Examiner, seeking statutory damages and
declaratory and injunctive relief for alleged violation of the
Video Privacy Protection Act, 18 U.S.C. Section 2710 ("VPPA"), due
to the Defendant's alleged knowing and unconsented-to disclosure to
Facebook, the social media platform operated by Meta Platforms,
Inc., of the Plaintiff's personally identifiable information
("PII") associated with information regarding her online viewing of
audio visual material.
The Defendant now moves to dismiss the Plaintiff's amended
complaint for lack of subject matter jurisdiction and for failure
to state a claim, pursuant to Federal Rules of Civil Procedure
12(b)(1) and 12(b)(6).
The Defendant operates Washington Examiner, a conservative media
company that, along with publishing internet news articles and a
weekly magazine, delivers online video content to consumers on its
website. Washington Examiner also offers a free email newsletter
that regularly includes information about audiovisual materials on
its website, hyperlinks to this video content, and embedded videos.
Users may subscribe to its content by signing up for its newsletter
and/or paying for a digital subscription by providing personal
information, including their email addresses and ZIP codes.
Washington Examiner uses on its website a tracking tool, called
Meta Pixel, which is a snippet of code that, when embedded on a
third-party website, tracks users' activities as users navigate
through the website. Meta Pixel tracks and reports video watching
history to third parties, including Facebook, which is operated by
Meta.
To perform this function, Meta Pixel collects interactions website
visitors have with the site, and sends the data to Facebook, along
with information that enables Facebook to match website visitors to
their respective Facebook User accounts. Meta Pixel tracks this
data regardless of whether a user is logged into Facebook. To
obtain the code for the pixel, a website owner must tell Facebook
what kind of events the site wants to track, and Facebook then
returns the pixel code for the site administrator to embed into the
website.
Washington Examiner chose to configure the Meta Pixel so that
Facebook receives the URL of each page consumers visited, including
information indicating that the page contained a video and the
title of that video, together with the consumer's Facebook ID, all
without Class members' knowledge or consent.
According to the Plaintiff, Washington Examiner benefits from
disclosing private information about its subscribers, in the form
of enhanced online advertising services from Facebook and by
selling to advertisers the opportunity to market to its
subscribers.
The Plaintiff has visited the Washington Examiner website and
watched videos on the site since at least 2018 and has also
maintained a Facebook account since approximately 2017. On an
unspecified date, the Plaintiff subscribed to the Washington
Examiner's newsletter by providing her personal information,
including her email address and ZIP code.
Although the Plaintiff never consented to any sharing of her
personal information or video watching history with any third
party, Washington Examiner sent information regarding her activity
on Washington Examiner's site to Facebook on at least 24 occasions,
and this information allowed Facebook to identify her and learn the
internet addresses or URLs of the pages she had visited on
Washington Examiner's website, including the titles of videos she
had watched. These videos concerned political topics, including
controversial issues and opinions that are unpopular among certain
people with more liberal political views.
The Plaintiff alleges that these disclosures to Facebook violated
her privacy interests and deprived her of the economic value of her
private video watching history. Since discovering Washington
Examiner's disclosure of her private video watching information in
2022, the Plaintiff says she has continued to desire to watch
videos on Washington Examiner's website and will continue to suffer
harm if the website is not redesigned.
The Plaintiff sued the Defendant in February 2023, and filed the
operative Amended Complaint in May 2023, on behalf of herself and a
putative class comprising "all Facebook account holders in the
United States who subscribed to Washington Examiner's newsletter
and/or paid digital subscription and viewed video content on the
Washington Examiner website from February 7, 2021 to the present."
In a single claim, the Plaintiff alleges that Washington Examiner
violated the VPPA by knowingly disclosing personally identifiable
information to Meta that identified her and members of the putative
class as having requested or obtained specific video materials
and/or services from Washington Examiner without their consent. On
behalf of herself and the putative class, the Plaintiff seeks
damages "not less than $2,500 per person," punitive damages,
attorney's fees and costs, injunctive and declaratory relief, and
such other relief as the Court may deem just and proper.
The Defendant raises two grounds for dismissal, arguing, first,
that subject matter jurisdiction is lacking because the Plaintiff
lacks standing by failing to allege a "concrete harm" from a
purported statutory violation, and, second, that her allegations do
not state a claim under the VPPA for several independent reasons.
While the Plaintiff has Article III standing to raise her VPPA
claim, Judge Howell finds that she has failed to state a claim
under the VPPA, and the Defendant's Rule 12(b)(6) motion to dismiss
is, accordingly, granted.
The Defendant contends that the Plaintiff fails to establish the
threshold element for any VPPA claim, namely: that she qualifies as
a "consumer" authorized to bring an action for violation of this
statute.
Close examination of the Plaintiff's allegations reveals that she
provided her email address and ZIP code only for her subscription
to the Washington Examiner's newsletter; nowhere does she allege
that she ever clicked a link to the video content included in the
newsletter, or watched any of the embedded videos, Judge Howell
notes. Merely alleging that she visited the Washington Examiner
website and watched videos on the site, wholly separate from her
newsletter subscription, breaks the link between the service to
which she was a subscriber and her accessing of audio-visual
content, and that is fatal to her standing as a VPPA "subscriber,"
Judge Howell points out.
Moreover, Judge Howell finds the Plaintiff fails to allege that her
status as a newsletter subscriber was a condition to accessing the
Washington Examiner site's videos, or that it enhanced or in any
way affected her viewing experience. These allegations, without
more, fall short of establishing that her subscription to
Washington Examiner's email newsletter—consisting of written text
along with hyperlinks to video content and embedded videos—made
the Plaintiff a subscriber to Washington Examiner's audio-visual
goods or services, rather than merely a subscriber to its other,
predominantly written, not video, goods or service that fall
outside the purview of the VPPA.
By failing to link her newsletter subscription to the viewing of
Washington Examiner's video offerings, or to allege that the
subscription allowed access to the videos on the Washington
Examiner site that any member of the public would not otherwise
have, Judge Howell opines that the Plaintiff has alleged only that
she was a subscriber to Washington Examiner's newsletter, not to
audio-visual goods or services provided by Washington Examiner.
This is insufficient to make the Plaintiff a consumer of goods or
services from a video tape service provider entitled to bring a
cause of action under the VPPA, Judge Howell points out.
For these reasons, Judge Howell holds that the Plaintiff's Amended
Complaint is dismissed, without prejudice, for failure to state a
claim.
A full-text copy of the Court's Memorandum Opinion dated Jan. 29,
2024, is available at http://tinyurl.com/yc6hup74from
PacerMonitor.com.
WAYNE COUNTY, MI: Class Discovery in Ingram Suit Due June 12
------------------------------------------------------------
In the class action lawsuit captioned as MELISA INGRAM, et al., v.
COUNTY OF WAYNE, Case No. 2:20-cv-10288-GCS-EAS (E.D. Mich.), the
Hon. Judge George Caram Steeh entered an order setting answer date,
class discovery period, and deadline for class certification motion
as follows:
1. The Defendant shall answer the Amended Feb. 13,
2024
Complaint on or before:
2. After the County files its Answer, the June 12,
2024.
Parties will complete class discovery
by Wednesday:
3. After the completion of discovery, the July 12,
2024
Plaintiffs will have until Friday, to
file an amended motion for class
certification:
A copy of the Court's order dated Jan. 26, 2024 is available from
PacerMonitor.com at https://urlcurt.com/u?l=g6VdAx at no extra
charge.[CC]
The Plaintiffs are represented by:
Kirby Thomas West, Esq.
INSTITUTE FOR JUSTICE
901 North Glebe Road, Suite 900
Arlington, VA 22203
Telephone: (703) 682-9320
E-mail: kwest@ij.org
The Defendant is represented by:
Nasseem S. Ramin, Esq.
DYKEMA GOSSETT PLLC
400 Renaissance Center
Detroit, MI 48243
Telephone: (313) 568-5341
E-mail: nramin@dykema.com
WELLABE ENTERPRISE: Welch Files TCPA Suit in M.D. Florida
---------------------------------------------------------
A class action lawsuit has been filed against Wellabe Enterprise
Group, Inc., et al. The case is styled as Michael Welch,
individually and on behalf of others similarly situated v. Wellabe
Enterprise Group, Inc., d/b/a Great Western Insurance Company, Case
No. 6:24-cv-00234 (M.D. Fla., Feb. 1, 2024).
The lawsuit is brought over alleged violation of the Telephone
Consumer Protection Act for Restrictions of Use of Telephone
Equipment.
Great Western Insurance Company -- https://my.gwic.com/ -- is an
Ogden, Utah-based company writing life insurance and
annuities.[BN]
The Plaintiff is represented by:
Ryan Lee McBride, Esq.
KAZEROUNI LAW GROUP APC
2221 Camino Del Rio S., Suite 101
San Diego, CA 92108
Phone: (800) 400-6808
Email: ryan@kazlg.com
WELLS FARGO BANK: Palma Files Suit in Cal. Super. Ct.
-----------------------------------------------------
A class action lawsuit has been filed against Wells Fargo Bank, et
al. The case is styled as Helen Palma, on behalf of herself and
others similarly situated v. Wells Fargo Bank, Does 1-10, Case No.
CGC24612124 (Cal. Super. Ct., San Francisco Cty., Feb. 2, 2024).
The case type is stated as "Business Tort."
Wells Fargo & Company -- http://www.wellsfargo.com/-- is an
American multinational financial services company with a
significant global presence.[BN]
The Plaintiff is represented by:
Daniel Abraham, Esq.
WHIRLPOOL CORP: Faces Class Suit Over Refrigerators Defective Wires
-------------------------------------------------------------------
Anne Bucher of Top Class Actions reports that Whirlpool Corp. faces
a class action lawsuit alleging it manufactured and sold Whirlpool
refrigerators with defective wiring that can pose a safety hazard.
Plaintiffs Stacy Costa, Nathaniel Guerrero and Missy Robinson filed
the Whirlpool class action lawsuit on behalf of themselves and
others who purchased certain French-door or side-by-side-style
Whirlpool, KitchenAid and Kenmore refrigerator-freezer combinations
with defective wiring.
They allege the Whirlpool refrigerators contain defective wires
that are intended to flex when the door is opened and closed.
However, the class action lawsuit alleges, the wires are made with
materials that cause them to fray or break quickly with normal use,
rendering many of the refrigerators' functions useless.
"Moreover, the broken and frayed wires create a safety hazard due
to the presence of exposed, live wires," the plaintiffs allege.
They claim the refrigerators defective wires issue often manifests
within a few years of purchase.
Whirlpool has known of the refrigerators defective wires problem
for at least a decade, as indicated by consumer complaints on
social media and public forums, the Whirlpool class action lawsuit
claims.
"Those complaints also necessitated Whirlpool's communications with
repair technicians and service representatives about the
[refrigerators' defective wires], which further evidences
Whirlpool's awareness of the problems," the plaintiffs allege.
The alleged Whirlpool refrigerators defect is "irreparable,"
according to the Whirlpool class action lawsuit. The only way to
restore functionality to the refrigerators is to install
replacement doors, which also contain defective wires that will
fail prematurely, the plaintiffs say.
Consumers seeking replacement doors are often required to wait
months for their Whirlpool refrigerators to be repaired, if the
replacement doors are available at all. When new Whirlpool
refrigerator doors are available, the replacement door may cost
more than $1,200, the plaintiffs say.
"As a result, most consumers are forced to purchase an entirely new
refrigerator," the class action lawsuit says.
The class action lawsuit asserts claims for breach of express
warranty, violation of the Magnuson-Moss Warranty Act, unjust
enrichment, common law fraud, negligent misrepresentation and
violations of California, Florida and North Carolina laws.
Last year, another class action lawsuit claimed the company sells
certain Whirlpool refrigerators with a defect that renders them
unable to maintain a cool temperature.
The plaintiffs are represented by Scott M. Tucker, Timothy N.
Matthews, Zachary P. Beatty and Marissa N. Pembroke of Chimicles
Schwartz Kriner & Donaldson-Smith LLP
The Whirlpool refrigerators class action lawsuit is Stacy Costa, et
al. v. Whirlpool Corp., Case No. 1:24-cv-00188-UNA, in the U.S.
District Court for the District of Delaware. [GN]
WILLIAMSBURG GARMENT: Durantas Files ADA Suit in E.D. New York
--------------------------------------------------------------
A class action lawsuit has been filed against The Williamsburg
Garment Company, Inc. The case is styled as Hakan Durantas, on
behalf of himself and all others similarly situated v. The
Williamsburg Garment Company, Inc., Case No. 1:24-cv-00794
(E.D.N.Y., Feb. 2, 2024).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
The Williamsburg Garment Company, Inc. --
https://williamsburggarment.com/ -- is Brooklyn's raw denim
American made jeans specialist and leader in denim alterations
services.[BN]
The Plaintiff is represented by:
Mars Khaimov, Esq.
14749 71st Ave.
Flushing, NY 11367
Phone: (917) 915-7415
Email: mars@khaimovlaw.com
WINCO HOLDINGS: Gomez Suit Removed to E.D. California
-----------------------------------------------------
The case captioned as Hugo Gomez, on behalf of himself and all
others similarly situated v. WINCO HOLDINGS, INC., an Idaho
corporation; and DOES 1-10, inclusive, Case No. CV-23-006280 was
removed from the Superior Court of the State of California, County
of Stanislaus, to the U.S. District Court for the Eastern District
of California on Feb. 1, 2024, and assigned Case No.
2:24-cv-00380-CKD.
The Plaintiff's claim for civil penalties for alleged overtime
violations via the "alternative workweek" theory is completely
preempted because it is based on a negotiable right—which is
expressly subject to negotiation under the plain language of the
Labor Code—and which was actively negotiated in the CBA. WinCo
and Plaintiff's employee representative negotiated a CBA that
provides and permits alternative workweeks.[BN]
The Defendants are represented by:
Kristina M. Launey, Esq.
Michael Kopp, Esq.
Phillip J. Ebsworth, Esq.
SEYFARTH SHAW LLP
400 Capitol Mall, Suite 2300
Stanislaus, CA 95814-4428
Phone: (916) 448-0159
Facsimile: (916) 558-4839
Email: klauney@seyfarth.com
mkopp@seyfarth.com
pebsworth@seyfarth.com
WISCONSIN: Court Grants Bid for Summary Judgment in Shaw v. Dobson
------------------------------------------------------------------
Chief Judge Pamela Pepper of the U.S. District Court for the
Eastern District of Wisconsin grants the Defendant's motion for
summary judgment in the lawsuit captioned SERGIO SHAW, Plaintiff v.
AARON DOBSON, Defendant, Case No. 2:22-cv-00045-PP (E.D. Wis.).
Plaintiff Sergio Shaw, an incarcerated person, who is representing
himself, is proceeding against a Milwaukee County Jail official
under 42 U.S.C. Section 1983. The Defendant has moved for summary
judgment on the ground that the Plaintiff failed to exhaust his
administrative remedies before bringing this lawsuit. The Plaintiff
has not opposed the motion.
On Jan. 13, 2022, the Court received the initial complaint, which
the Plaintiff filed as a purported class action on behalf of
himself and 14 other incarcerated persons. The complaint named as
Defendants several Milwaukee County entities and broadly identified
staff groups.
On Jan. 31, 2022, the Court received an amended complaint that the
Plaintiff filed on behalf of himself and 16 other incarcerated
persons. The amended complaint asserted that various constitutional
violations had occurred at the Milwaukee County Jail and sought
injunctive relief and $10 million for each Plaintiff.
On Feb. 3, 2022, the Court issued an order dismissing all the
Plaintiffs except Shaw and ordering that by March 4, 2022, he must
file a second amended complaint alleging violations of only his own
rights. On Feb. 15, 2022, the Court received the second amended
complaint.
The Court screened the second amended complaint and explained that
it did not name a proper Defendant. The Court explained that the
second amended complaint also improperly sought to proceed on
several unrelated claims against different Defendants, including a
claim that the Defendants forced the Plaintiff to live in very
unsanitary, and nearly inhabitable living conditions and subjected
him to inhumane treatment.
The Court ordered that by Nov. 18, 2022, the Plaintiff must file a
third amended complaint that focused on the claim or related claims
of his choosing. The Plaintiff did not file a third amended
complaint.
On March 29, 2023, the Court issued an order allowing the Plaintiff
to proceed only on his claim about the conditions of his
confinement, dismissing all other Defendants and claims and
ordering service of the second amended complaint on Milwaukee
County Sheriff Denita R. Ball. The Court explained that the sheriff
would be added as a Defendant for the limited purpose of helping
the Plaintiff identify a proper Defendant for his claim. The Court
ordered the Plaintiff to identify the proper Defendant within sixty
days of Sheriff Ball's attorney appearing in the case.
On April 4, 2023, counsel for Sheriff Ball filed a notice of
appearance. On June 5, 2023, the Court received the Plaintiff's
motion to substitute Jail Administrator Aaron Dobson in place of
Sheriff Ball. The Court granted that motion, substituted Defendant
Dobson in place of Sheriff Ball and ordered Dobson to respond to
the second amended complaint within 60 days.
After Dobson filed his answer to the second amended complaint, the
Court issued a scheduling order setting a Nov. 13, 2023 deadline by
which the Defendant could move for summary judgment on the ground
that the Plaintiff failed to exhaust his administrative remedies.
At that deadline, the Court received the Defendant's motion for
summary judgment on exhaustion grounds. The Court ordered the
Plaintiff to respond to the motion by Dec. 13, 2023.
The Court explained that if it did not receive the Plaintiff's
response by that deadline, the Court will treat the Defendant's
motion as unopposed, that is, without considering a response from
the Plaintiff. The Court explained that meant the Court likely will
grant the Defendant's motion and dismiss the case.
The Dec. 13, 2023 deadline has passed, and the Plaintiff has not
filed a response to the Defendant's motion for summary judgment or
requested additional time to do so. The Defendant sent his motion,
and the Court sent its order, to the Plaintiff at Oshkosh
Correctional Institution, where he remains incarcerated. The order
was not returned as undeliverable, so the Court has no reason to
believe the Plaintiff did not receive it. The Court will enforce
its previous order and decide the Defendant's motion without the
Plaintiff's input.
Judge Pepper notes that the undisputed evidence shows that the
Plaintiff filed two grievances about the conditions of his
confinement at the jail, which is the one claim on which the Court
allowed him to proceed in this lawsuit. Jail staff responded to the
Plaintiff's Jan. 4, 2022 grievance and asked him to resubmit the
grievance with additional information. The Plaintiff did not
resubmit the grievance, did not appeal the response he received and
did not take any other action on this grievance.
The Plaintiff filed his second grievance on Feb. 21, 2022, and jail
staff again asked him to provide more information about his
complaint. The Plaintiff did not respond or provide more
information and instead filed an appeal. Jail staff responded to
the appeal and again asked the Plaintiff to resubmit his grievance
(not appeal) with additional information about his complaint. The
Plaintiff did not resubmit his grievance, did not provide any
additional information, and did not take any other action on this
grievance.
The jail's Occupant Handbook contains the process for incarcerated
persons wishing to file a grievance about issues affecting their
health and welfare or the jail's facilities and services. The
handbook instructs those persons to await a response from a jail
representative. If unsatisfied with the response, the incarcerated
person may appeal the decision in writing and provide supporting
documentation. The jail representative then reviews and decides on
the appeal. The incarcerated person may appeal that decision to the
Jail Commander, whose decision is final.
Judge Pepper notes that the undisputed evidence shows that the
Plaintiff did not follow the specific procedures and deadlines
established by the jail's policy in the Occupant Handbook. The
evidence shows that jail staff promptly responded to the
Plaintiff's grievances and attempted to address the issues that the
Plaintiff grieved. But the Plaintiff failed to provide the
information necessary for staff to address the problem and instead
abandoned his complaints. There is no evidence suggesting that the
Plaintiff was unaware of the Occupant Handbook's instructions for
filing a grievance. Nor is there evidence that the grievance
process was unavailable to the Plaintiff or that he did not know
how to follow it.
Judge Pepper also notes that the undisputed evidence shows that the
Plaintiff filed several grievances during the seven months he was
incarcerated at the jail, which suggests he was familiar with the
process and procedures for filing grievances. He did not follow
those procedures for the two grievances he filed about the
conditions of his confinement at the jail.
By failing to follow each step in the Occupant Handbook, Judge
Pepper holds that the Plaintiff failed to fully comply with the
jail's available grievance process. That means he did not exhaust
his administrative remedies before bringing this lawsuit, and the
Court must dismiss the case without prejudice for his failure to
comply with Section 1997e(a).
The Court grants the Defendant's motion for summary judgment on
exhaustion grounds. The Court orders that this case be dismissed
without prejudice. The clerk will enter judgment accordingly.
Judge Pepper says this order and the judgment to follow are final.
A dissatisfied party may appeal this Court's decision to the Court
of Appeals for the Seventh Circuit by filing a notice of appeal
with this court within 30 days of the entry of judgment.
If the Plaintiff appeals, he will be liable for the $605 appellate
filing fee, regardless of the outcome of the appeal. If the
Plaintiff seeks to proceed on appeal without prepaying the
appellate filing fee, he must file a motion in this Court. The
Plaintiff may be assessed a "strike" by the Court of Appeals if it
concludes that his appeal has no merit.
If the Plaintiff accumulates three strikes, he will not be able to
file a case in federal court (except for a petition for habeas
corpus relief) without prepaying the full filing fee unless he
demonstrates that he is in imminent danger of serious physical
injury.
The Court expects parties to closely review all applicable rules
and determine, what, if any, further action is appropriate in a
case.
A full-text copy of the Court's Order dated Jan. 29, 2024, is
available at http://tinyurl.com/46ezbnktfrom PacerMonitor.com.
XPONENTIAL FITNESS: City of Taylor Sues Over Drop in Share Price
----------------------------------------------------------------
CITY OF TAYLOR GENERAL EMPLOYEES RETIREMENT SYSTEM, individually
and on behalf of all others similarly situated, Plaintiff v.
XPONENTIAL FITNESS, INC.; ANTHONY GEISLER; and JOHN MELOUN,
Defendants, Case No. 8:24-cv-00285 (C.D. Cal., Feb. 9, 2024) is a
securities class action on behalf of purchasers of Xponential
publicly traded Class A common stock between July 26, 2021 and
December 7, 2023, inclusive, seeking to pursue remedies under the
Securities Exchange Act of 1934 (the "Exchange Act").
According to the Plaintiff in the complaint, during the Class
Period, defendants made materially false and misleading statements
and omissions regarding Xponential's business, financial results,
and prospects. Specifically, defendants failed to disclose that the
Company's franchisees - from whom Xponential derived substantially
all of its revenue - were largely failing, with the majority of the
Company's store brands losing money, dozens of studios operating at
a loss, forcing some to close permanently, and more than 100
franchisees listed for sale at a fraction of their initial cost.
Despite this grim reality, Xponential snookered new franchisees to
sign up with the Company with false and misleading promises of
robust financial returns, misleading claims regarding past studio
performance, and deceptive assurances of corporate support.
The price of Xponential common stock fell more than 26% over two
trading days on heavy trading volume to close at less than $9 per
share on December 11, 2023, causing plaintiff and other Class
members to suffer additional economic losses and damages under the
federal securities laws.
XPONENTIAL FITNESS, INC. owns and operates recreational centers.
The Company offers boutique fitness space including pilates, cycle,
stretch, and rowing, as well as provides one-on-one personalized
stretching services. [BN]
The Plaintiff is represented by:
The Plaintiff is represented by:
Brian E. Cochran, Esq.
ROBBINS GELLER RUDMAN
& DOWD LLP
655 West Broadway, Suite 1900
San Diego, CA 92101
Telephone: (619) 231-1058
Facsimile: (619) 231-7423
Email: bcochran@rgrdlaw.com
*********
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