/raid1/www/Hosts/bankrupt/CAR_Public/240313.mbx
C L A S S A C T I O N R E P O R T E R
Wednesday, March 13, 2024, Vol. 26, No. 53
Headlines
3M COMPANY: Hendershot Suit Removed to N.D. Alabama
7-ELEVEN INC: Persson Suit Removed to E.D. California
9 EAST FIRST STREET: Stroude Files ADA Suit in E.D. New York
ABLE C&C: Faces Bui Suit Over Mislabeled Sunscreen Products
AGS INC: Court Grants Judgment on Pleadings in Securities Suit
ALBRIGHT COLLEGE: Knowles Files ADA Suit in S.D. New York
ALEBRIJE ENTERTAINMENT: Engages in Ponzi Scheme, AVR Group Says
ALYAMANI GROCERY: Fails to Pay Overtime Wages, Hernandez Says
AMAZON.COM SERVICES: Panian Suit Removed to C.D. California
AMERICAN CUSTOMER CARE: Spacer Sues Over Failure to Pay Overtime
AMERICAN ELECTRONIC: Maryland OT Class Certified in Jackson Suit
AMN HOME BUYERS: Chavez Files TCPA Suit in D. Arizona
APPLIED AEROSPACE: Ruiz Files Suit in Cal. Super. Ct.
ASPEN DENTAL: Williams Sues Over Failure to Safeguard PII
BAKERLY BARN: Gibbons Suit Alleges Labor Breaches
BG RETAIL: Ponce Suit Removed to E.D. California
BON SECOURS MERCY HEALTH: Bishop Suit Transferred to E.D. New York
BPA SALES LP: Toro Files ADA Suit in S.D. New York
CALIFORNIA: May File Bid to Decertify Class in Fitzgerald Suit
CHAD ZESKE: Fails to Pay Proper Overtime Wages, Haney and Frank Say
CHICAGO, IL: Court Dismisses Jones Adversary Suit With Prejudice
CHILDREN’S PLACE: Khalsa Sues Over Misleading Statements
CMG MEDIA: Wins Bid to Compel Arbitration; Hawkins Suit Stayed
CONTINENTAL AG: Ammons Sues Over Tire Price Monopoly
CONTINENTAL AG: Bengel Sues Over Tire Price Monopoly
DANONE WATERS: Dotson Sues Over Deceptive Labeling of Bottled Water
DIAMONDBACK ENERGY: Faces Webb Suit Over Unlawful Acquisition
DONALD TRUMP: Collier Appeals Case Dismissal
DQPCHACHA FURNITURE: Lopez Sues Over Labor Law Breaches
EASY WORKFORCE: Appeals Class Cert. Order in BIPA Suit to 7th Cir.
FIRST AID: Violates Caller ID Rules, Lewis Suit Alleges
FITON INC: Endres Sues Over Unlawful Private Information Disclosure
FLYWIRE CORPORATION: Jones Sues Over Stockholders Voting Rights
GAP INC: Bourgeois Appeals Privacy Suit Dismissal to 1st Cir.
GOLDEN CORRAL: Fails to Prevent Data Breach, Bennett Alleges
GOLDEN CORRAL: Fails to Prevent Data Breach, Brand Suit Alleges
GOLDEN CORRAL: Fails to Prevent Data Breach, Brooks Alleges
GOLDEN CORRAL: Hunt Sues Over Unprotected Private Information
GOLDEN CORRAL: Morrow Sues Over Unsecured Private Information
GREENIX HOLDINGS: Pizzillo Alleges Wage and Hour Violations
JAJA RESTAURANT: Lewis and Pawlus Sue Over Illegal Tip Pooling
JAVA MOMMA: Figueroa Seeks Damages for Breach of Caller ID Rules
JEFF RUBY: Faces Lamb Suit in Ohio Over Tip Retention Policy
KENNAN & ASSOCIATES: Teague Sues Over Late Data Breach Notice
KIMBERLY-CLARK CORP: DePaul Sues Over Exposure to Toxic Chemicals
KNIGHT TRANSPORTATION: Lira and Lofton Dismissed as Class Reps
LA GLADYS: Fernandez Seeks Unpaid Minimum and Overtime Wages
LAUNCH TECH: Fails to Provide COBRA Notice, Inga Says
LEARFIELD COMMUNICATIONS: Peterson Appeals Privacy Suit Dismissal
LEPRINO FOODS: $3.5MM Settlement in Vasquez Suit Has Prelim. Nod
MEDICAL MANAGEMENT: Fails to Prevent Data Breach, Baehr Alleges
MEDICAL MANAGEMENT: Israel Sues Over Breach of Private Information
MINDLANCE INC: Sheppard Sues Over Unpaid Work Time
MULTI-FINELINE ELECTRONIX: Biondi Sues Over Private Data Breach
NEXTDOOR HOLDINGS: Adamo Sues Over Drop in Share Price
OPENAI LP: Faces Class Action Suit Over Data Misuse Practices
PERRIGO COMPANY: Continues to Defend Phenylephrine Class Suit
PERRIGO COMPANY: Continues to Defend Roofers' Pension Class Suit
PERRIGO COMPANY: March 21 Settlement Certification Hearing Set
PRIME RANGERS: Misclassifies Satellite Technicians, Denbo Claims
PROGRESS RESIDENTIAL: Loses Bid to Compel Arbitration in Tate Suit
PROGRESSIVE CASUALTY: Must Oppose Class Cert Bid by April 15
PROGRESSIVE SPECIALTY: 3rd Cir. Appeal Filed in Drummond Suit
RICHARD ROBINSON: Thomas Remains as Sole Plaintiff in Class Suit
RIVIAN AUTOMOTIVE: Seeks Leave to File Certain Exhibits in Crews
SANTA MONICA, CA: Murcia Bid for Class Cert. Deemed Withdrawn
SAVE MART: Plaintiffs' Bid for Class Cert Extended to July 5
SBK DELIVERY: Court Tosses w/o Prejudice Opt-in's Claims in Miller
SERGIMMO TRATTORIA: Fails to Pay Proper Wages, Aguilar Alleges
SURGICARE OF SILICON: Fails to Pay Proper Wages, Dauphinais Says
TELEPHONE AND DATA: Ohnemus Sues Over Breach of Fiduciary Duties
TEN BRIDGES: W.D. Washington Refuses to Certify Class in Taie Suit
TRINITY HEALTH: Faces Greer Wage & Hour Suit in Michigan
TRINITY UNIVERSAL: Lance Sues Over Unprotected Personal Info
UAG ESCONDIDO: S.D. California Dismisses Esparza Class Suit
UNITED BEHAVIORAL: Desert Cove's Class Certification Bid Denied
WASTE CONNECTIONS: Rolland Sues Over Labor Law Breaches
WEST TECHNOLOGY: Pulliam Appeals Tort Suit Dismissal to 8th Cir.
WEST VIRGINIA: Court Grants Bid to Compel in Jonathan R. Suit
WYNDHAM HOTELS: WDI's Bid to Dismiss Amended Cullum Suit Granted
*********
3M COMPANY: Hendershot Suit Removed to N.D. Alabama
---------------------------------------------------
The case captioned as Albert E. Hendershot, et al. v. 3M Company,
et al., Case No. 01-CV-2023-904646.00 was removed from the Circuit
Court for the Tenth Judicial Circuit, Jefferson County, Alabama, to
the United States District Court for the Northern District of
Alabama on Feb. 6, 2024, and assigned Case No. 2:24-cv-00958-RMG.
The Plaintiffs seek to hold 3M and certain other the Defendants
liable based on their alleged conduct in designing, manufacturing,
and/or selling aqueous film-forming foams ("AFFF") and/or
firefighter turnout gear ("TOG") that Plaintiffs allege were used
in firefighting activities, thereby causing injury to the
Plaintiffs.[BN]
The Plaintiff is represented by:
Gregory A. Cade, Esq.
Gary A. Anderson, Esq.
Kevin B. McKie, Esq.
ENVIRONMENTAL LITIGATION GROUP, P.C.
2160 Highland Avenue South
Birmingham, AL 35205
Phone: 205-328-9200
Facsimile: 205-328-9456
Email: gregc@elglaw.com
gary@elglaw.com
kmckie@elglaw.com
The Defendant is represented by:
M. Christian King, Esq.
Harlan I. Prater, IV, Esq.
W. Larkin Radney, IV, Esq.
Wesley B. Gilchrist, Esq.
LIGHTFOOT, FRANKLIN & WHITE, L.L.C.
The Clark Building
400 North 20th Street
Birmingham, AL 35203-3200
Phone: (205) 581-0700
Email: cking@lightfootlaw.com
hprater@lightfootlaw.com
lradney@lightfootlaw.com
wgilchrist@lightfootlaw.com
7-ELEVEN INC: Persson Suit Removed to E.D. California
-----------------------------------------------------
The case captioned as Kimberly Persson, on behalf of herself and
all others similarly situated, and on behalf of the general public
v. 7-ELEVEN, INC., a Texas Corporation, and DOES 1 through 10,
inclusive, Case No. 24CV000862 was removed from the Superior Court
of the State of California for the County of Sacramento, to the
U.S. District Court for the Eastern District of California on Feb.
23, 2024, and assigned Case No. 2:24-cv-00569-DB.
The Plaintiff's Complaint purports to bring claims on behalf of
herself and a class based on alleged violations of the California
Labor Code, including unlawful meal and/or rest periods; accurate
wage statements; minimum and overtime wages; expense reimbursement;
and timely payment of wages.[BN]
The Defendants are represented by:
Eric A. Welter, Esq.
WELTER LAW FIRM, P.C.
20130 Lakeview Center Plaza, Suite 400
Ashburn, VA 20147
Phone: (703) 435-8500
Facsimile: (703) 435-8851
Email: eaw@welterlaw.com
- and -
Julie R. Trotter, Esq.
Mireya A.R. Llaurado, Esq.
CALL & JENSEN
A Professional Corporation
610 Newport Center Drive, Suite 700
Newport Beach, CA 92660
Phone: (949) 717-3000
Email: jtrotter@calljensen.com
mllaurado@calljensen.com
9 EAST FIRST STREET: Stroude Files ADA Suit in E.D. New York
------------------------------------------------------------
A class action lawsuit has been filed against 9 East First Street,
LLC. The case is styled as Colette Stroude, on behalf of herself
and all others similarly situated v. 9 East First Street, LLC, Case
No. 1:24-cv-01375-MMH (E.D.N.Y., Feb. 23, 2024).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
9 East First Street, LLC doing business as Bowery Meat Company --
https://www.bowerymeatcompany.com/ -- is a meat-centric restaurant
from John McDonald of Mercer Street Hospitality.[BN]
The Plaintiff is represented by:
PeterPaul Elhamy Shaker, Esq.
STEIN SAKS, PLLC
1 University Plaza, Ste. 620
Hackensack, NJ 07601
Phone: (201) 282-6500
Email: pshaker@steinsakslegal.com
ABLE C&C: Faces Bui Suit Over Mislabeled Sunscreen Products
-----------------------------------------------------------
KATHERINE BUI, RITA LE, YOUNGSHIN AN, and SHANIDA YOUNVANICH
individually and on behalf of all others similarly situated v. ABLE
C&C US, INC., Case No. 2:24-cv-01157 (D.N.J., February 28, 2024)
accuses the Defendant of violating consumer protection laws.
The Plaintiffs bring this class action over Defendant's false and
misleading labeling and marketing regarding its sunscreen products.
Defendant claimed that its sunscreen products are waterproof,
provide impenetrable UV protection, and block all UV rays.
The Plaintiff, who is among those who purchased the products,
alleges that such claims were false, deceptive, misleading, and
unfair as the products are not waterproof and do not block all UV
ray exposure. Defendant is accused of violating state laws on
unfair and deceptive business practices, including the New Jersey
Consumer Fraud Act, the California Consumers Legal Remedies Act,
the California False Advertising Law, and the California Unfair
Competition Law.
Headquartered in Englewood,NJ, Able C&C US, Inc. sells sunscreen
products under the MISSHA and A'PIEU brands. [BN]
The Plaintiffs are represented by:
Kimberly M. Donaldson-Smith, Esq.
CHIMICLES SCHWARTZ KRINER & DONALDSON-SMITH LLP
361 West Lancaster Avenue
Haverford, PA 19041
Telephone: (610) 642-8500
E-mail: kds@chimicles.com
- and –
Robert J. Kriner, Jr., Esq.
Scott M. Tucker, Esq.
CHIMICLES SCHWARTZ KRINER & DONALDSON-SMITH LLP
2711 Centerville Rd. Suite 201
Wilmington, DE 19808
Telephone: (302) 656-2500
Facsimile: (302) 656-9053
E-mail: Scottrucker@chimicles.com
- and –
Eric S. Dwoskin, Esq.
DWOSKIN WASDIN LLP
433 Plaza Real, Suite 275
Boca Raton, FL 33432
Telephone: (561) 849-8060
E-mail: edwoskin@dwowas.com
AGS INC: Court Grants Judgment on Pleadings in Securities Suit
--------------------------------------------------------------
Judge James C. Mahan of the U.S. District Court for the District of
Nevada grants the Defendants' motion for judgment on the pleadings
in the lawsuit captioned IN RE AGS, INC. SECURITIES LITIGATION,
Case No. 2:20-cv-01209-JCM-NJK (D. Nev.).
Presently before the Court is a motion for judgment on the
pleadings by Defendants PlayAGS, Inc.; David Lopez; Kimo Akiona;
David Sambur; Daniel Cohen; Eric Press; Yvette Landau; Adam Chibib;
and Geoff Freeman (collectively, the "AGS Defendants"). Lead
Plaintiff the Oklahoma Police Pension and Retirement System filed a
response to which the AGS Defendants replied.
The lawsuit is a putative consolidated class action suit alleging
various violations of the Securities Exchange Act of 1934 and the
Securities Act of 1933. The Lead Plaintiff represents the class of
Plaintiffs that purchased PlayAGS, Inc. stock between Jan. 26,
2018, and March 4, 2020 (the "class period"). The second amended
complaint names over 20 Defendants, including PlayAGS, Inc.
PlayAGS, Inc., supplies electronic gaming devices and other
products for the gaming industry. The thrust of the allegations in
the second amended complaint ("SAC") is that PlayAGS, Inc. (and
various underwriters, executives, and directors named as additional
Defendants) fraudulently inflated its share prices via
misrepresentations and omissions of the company's true financial
condition.
The class period begins on the date of PlayAGS, Inc.'s initial
public offering and ends on the date the Lead Plaintiff alleges
that PlayAGS's "true" financial condition became known to the
Plaintiffs.
The SAC alleges five causes of action against the Defendants:
violations of (1) Section 10(b) of the Exchange Act and SEC Rule
10b-5 promulgated thereunder; (2) Section 20(a) of the Exchange
Act; (3) Section 11 of the Securities Act; (4) Section 12(a)(2) of
the Securities Act; and (5) Section 15 of the Securities Act.
The Court found that Claim One was insufficiently pleaded as a
cause of action under subsection (b) of Rule 10b-5 and dismissed it
on that basis. The Court dismissed the other claims for various
reasons (lack of standing, insufficiently pleaded allegations,
statutory insufficiency, etc.). Finding that the parties had not
adequately briefed whether Claim One survived as a cause of action
under the other subsections of Rule 10b-5, the Court reserved
judgment on that issue.
The Court granted the Lead Plaintiff 30 days to amend its SAC. The
Lead Plaintiff never amended its SAC.
As the only remaining Defendants, the AGS Defendants now ask the
Court to grant judgment in their favor on the pleadings. They argue
that Claim One also fails to state of cause of action for relief
under the other subsections of Rule 10b-5, and this entire action
should be dismissed with prejudice.
The Lead Plaintiff argues that the AGS Defendants' Rule 12(c)
motion for judgment on the pleadings is improper because the Court
already considered and denied their request to dismiss Claim One
under the other subsections of Rule 10b-5. Accordingly, AGS
Defendants' motion is actually one for reconsideration improperly
disguised as one under Rule 12(c). The Lead Plaintiff further
argues that a judgment on the pleadings is appropriate only when no
dispute of material fact exists, and as the AGS Defendants' answer
disputes all material facts alleged in the complaint, judgment is
not proper.
The AGS Defendants counter that the Lead Plaintiff mischaracterizes
the Court's prior order and the legal standard for a Rule 12(c)
motion. The Court never addressed the merits of Claim One under the
other subsections of Rule 10b-5. And--the Defendants may raise a
12(c) motion attacking the sufficiency of a claim even after filing
an answer.
The Court agrees with the AGS Defendants. The Lead Plaintiff's
first claim is styled "Violation of Section 10(b) of the Exchange
Act and Rule 10b-5 Promulgated Thereunder." Judge Mahan notes that
the Lead Plaintiff does not specify under which subsections of Rule
10b-5 it is attempting to bring Claim One. Based on the allegations
under Claim One, the Court found that Claim One could either be
construed as a cause of action under subsection (b) of Rule 10b-5
(a "misrepresentation" claim) or as a cause of action under
subsections (a) and (c) (a "scheme liability" claim).
Based on the parties' prior motions, the Court dismissed Claim One
as insufficiently pleaded if construed as a misrepresentation
claim. The Court's prior order did not rule on whether Claim One
survived when construed as a cause of action under scheme
liability, finding the issue insufficiently briefed. Contrary to
the Lead Plaintiff's contention, the Court never addressed whether
Claim One sufficiently pleaded scheme liability. The AGS
Defendants' motion for judgment on the pleadings is, therefore, not
an improper motion for reconsideration, Judge Mahan points out.
As for the Lead Plaintiff's argument that a 12(c) motion for
failure-to-state-a-claim is improper once an answer disputing the
material allegations in the complaint has been filed--this is a
plain misunderstanding of the function of a 12(c) motion, Judge
Mahan opines. Among other things, Judge Mahan explains that the
plain text of Federal Rule of Civil Procedure 12(h)(2) instructs
that a failure-to-state-a-claim defense may be raised by a Rule
12(c) motion. This defense is also explicitly excluded from the
list of defenses that are waived if not raised by an earlier 12(b)
motion or responsive pleading.
Accordingly, the Court finds that the AGS Defendants' 12(c) motion
for failure to state a claim is procedurally proper.
Turning to the merits of the AGS Defendants' motion for judgment on
the pleadings, they argue that judgment is proper on the only
remaining claim--Claim One under SEC Rule 10b-5.
Although the Court dismissed Claim One as insufficiently pleaded as
a misrepresentation cause of action, it did not rule on whether it
is also sufficiently pleaded as a scheme liability cause of action.
The Court now finds that it is not sufficiently pleaded as to
scheme liability.
The Court finds that the difference between a scheme liability
claim (subsections (a) and (c)) versus a misrepresentation claim
(subsection (b)) is, thus, not that they proscribe mutually
exclusive types of fraudulent conduct with different scienter
requirements. Rather, the difference is that the former type of
claim involves fraudulent conduct made "in furtherance" of a scheme
while the latter doesn't involve a scheme.
If the Defendants commit fraud as part of a scheme, Judge Mahan
notes, they may be liable under both types of claims. Logically
then, if a plaintiff's scheme liability claim is based on the same
alleged set of facts as its misrepresentation claim, and the Court
finds that those facts do not sufficiently allege fraud (with the
requisite scienter) to sustain the misrepresentation claim, the
scheme liability claim necessarily fails, Judge Mahan points out.
Judge Mahan holds that the Lead Plaintiff fails to state a claim
for relief under Claim One, and judgment is ordered in favor of the
AGS Defendants.
The AGS Defendants ask the Court to dismiss this entire action,
with prejudice. The Lead Plaintiff requests leave to amend the
complaint.
The Court reminds the Lead Plaintiff that it has amended the
complaint twice already and chose not to amend for a third time,
even after the Court gave it leave to do so. The Court denies the
Lead Plaintiff's request and dismisses this action, with
prejudice.
Accordingly, The Court grants the AGS Defendants' motion for
judgment on the pleadings. The entire action is dismissed with
prejudice. The Clerk of the Court is instructed to close the case.
A full-text copy of the Court's Order dated Feb. 12, 2024, is
available at https://tinyurl.com/2af57s64 from PacerMonitor.com.
ALBRIGHT COLLEGE: Knowles Files ADA Suit in S.D. New York
---------------------------------------------------------
A class action lawsuit has been filed against Albright College. The
case is styled as Carlton Knowles, on behalf of himself and all
other persons similarly situated v. Albright College, Case No.
1:24-cv-01415 (S.D.N.Y., Feb. 23, 2024).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Albright College -- https://www.albright.edu/ -- is a private
liberal arts college in Reading, Pennsylvania.[BN]
The Plaintiff is represented by:
Michael A. LaBollita, Esq.
GOTTLIEB & ASSOCIATES
150 E. 18 St., Suite PHR
New York, NY 10003
Phone: (212) 228-9795
Fax: (212) 982-6284
Email: michael@gottlieb.legal
ALEBRIJE ENTERTAINMENT: Engages in Ponzi Scheme, AVR Group Says
---------------------------------------------------------------
AVR GROUP, LLC; TRIDENT ASSET MANAGEMENT, INC.; MICHAEL DZIURGOT,
individually and on behalf of all others similarly situated,
Plaintiff v. ALEBRIJE ENTERTAINMENT LLC; CRAIG COLE; MATTHEW COLE;
and GUSTAVO MONTAUDON, Defendants, Case No. 1:24-cv-01483 (S.D.
Fla., Feb. 27, 2024) alleges that the Defendants are engaged in a
billion dollar Ponzi Scheme.
According to the complaint, the Defendants assisted the Ponzi
Scheme by knowingly disseminating falsified bank records to falsely
claim that 1inMM Capital was engaged in legitimate business. They
also assisted the Ponzi Scheme in providing false information to
cover up the fact that Class Members were investing in forged
promissory notes.
As the direct and proximate result of the Defendants aiding and
abetting the fraud, the 1inMM Ponzi Scheme ensnared the Plaintiff
and Class Members causing them to be damaged in amounts to be
proven at trial, says the suit.
Based in Miami, ALEBRIJE ENTERTAINMENT is a leading international
distributor of high-quality content for television. [BN]
The Plaintiff is represented by:
Ross Good, Esq.
LOFTUS & EISENBERG, LTD.
161 N. Clark, Suite 1600
Chicago, IL 60601
Telephone: (312) 772-5396
Email: ross@loftusandeisenberg.com
ALYAMANI GROCERY: Fails to Pay Overtime Wages, Hernandez Says
-------------------------------------------------------------
MICHELLE HERNANDEZ, Plaintiff v. ALYAMANI GROCERY INC. (DBA SNACK
SHOP), YUNIS N DIHYEM, NORMAN DIHYEM, YOUSEF DIHYEM, and MOHAMMED
ARAF, individually, Defendants, Case No. 1:24-cv-01462 (E.D.N.Y.,
February 27, 2024) is a class action alleging the Defendants of
violating the Fair Labor Standards Act, the New York Labor Law, as
recently amended by the Wage Theft Prevention Act, and related
provisions from Title 12 of New York Codes, Rules, and
Regulations.
Plaintiff Hernandez was employed by Alyamani Grocery Inc. from
approximately June 15, 2023, until December 1, 2023, and then again
from January 1, 2024, until January 27, 2024, where her primary
work duty was as a cashier, but she also assisted customers.
Despite Defendants' mandatory pay obligations under FLSA and NYLL,
Plaintiff was only compensated at a rate of $13 per hour and was
never paid for her lawful overtime pay throughout her employment
period, where she worked well more than 40 hours per workweek, says
the suit.
Based in Brooklyn NY, Alyamani Grocery Inc. operates as a grocery
store. [BN]
The Plaintiff is represented by:
Lina Stillman, Esq.
STILLMAN LEGAL, P.C.
42 Broadway, 12th Floor
New York, NY 10004
Telephone: (212) 203-2417
Website: www.StillmanLegalPC.com
AMAZON.COM SERVICES: Panian Suit Removed to C.D. California
-----------------------------------------------------------
The case captioned as David Panian, on behalf of himself and other
current and former employees v. AMAZON.COM SERVICES LLC, a Delaware
limited liability company; AMAZON.COM, INC, a Delaware corporation;
MICHAEL DEAL, an individual; JEFFREY P. BEZOS, an individual; and
ANDREW JASSY, an individual, and DOES 1 through 50, inclusive, Case
No. 30-2023-01349347-CU-WT-CXC was removed from the Superior Court
of the State of California for the Orange County, to the U.S.
District Court for the Central District of California on Feb. 23,
2024, and assigned Case No. 8:24-cv-00386.
In his First Amended Complaint, Plaintiff alleges fifteen causes of
action against Defendants: Discrimination on the Basis of Race
and/or National Origin; Failure to Prevent Discrimination,
Harassment, and Retaliation in violation of FEHA; Wrongful
Termination; Retaliation; Unlawful Retaliation; Breach of Oral
Contract; Civil Penalties Under The Private Attorney General Act
("PAGA"); Failure to Pay Overtime Wages; Failure to Provide Meal
Periods; Failure to Provide Rest Periods; Failure to Reimburse
Business Expenses; Failure to Provide Accurate Wage Statements;
Failure to Pay Wages Upon Separation of Employment; Failure to
Provide Copies of Personnel Records; and Unfair Business
Practices.[BN]
The Defendants are represented by:
Megan Cooney, Esq.
Jessica M. Pearigen, Esq.
GIBSON, DUNN & CRUTCHER LLP
3161 Michelson Drive
Irvine, CA 92612-4412
Phone: 949.451.3800
Facsimile: 949.451.4220
Email: MCooney@gibsondunn.com
JPearigen@gibsondunn.com
- and -
Jordan E. Johnson, Esq.
GIBSON, DUNN & CRUTCHER LLP
1801 California Street, Suite 4200
Denver, CO 80202-2642
Phone: 303.298.5700
Facsimile: 303.298.5907
Email: JJohnson@gibsondunn.com
AMERICAN CUSTOMER CARE: Spacer Sues Over Failure to Pay Overtime
----------------------------------------------------------------
Edward Spacer, individually, and on behalf of others similarly
situated v. AMERICAN CUSTOMER CARE, INC., and PREMIERE RESPONSE,
LLC, Case 3:24-cv-00248 (D. Conn., Feb. 23, 2024), is brought
arising from the Defendants' willful violations of the Fair Labor
Standards Act ("FLSA") and for common law breach of contract and
unjust enrichment as a result the Defendants' failure to pay
overtime.
The Defendants employ remote customer center representatives
("CSRs") throughout the country, including Plaintiff who is
situated in Georgia. Although Defendants provide CSRs with a
variety of internal job titles (for example "Customer Experience
Relations Representative"), the off-the-clock work claims discussed
herein are essentially the same for all CSRs.
The Defendants require their CSRs to work a full-time schedule,
plus overtime, however, the Defendants do not compensate CSRs for
all work performed. The Defendants require their CSRs to perform
compensable work tasks off-the-clock before and after their
scheduled shifts and during their unpaid meal periods. This policy
results in CSRs not being paid for all time worked, including
overtime.
The Defendants knew or should have known how long it takes CSRs to
complete their off-the-clock work, and Defendants could have
properly compensated Plaintiffs and the putative Collective and
Class for this work, but did not. The Defendants knew or should
have known that CSRs, including Plaintiff, worked overtime hours
for which they were not compensated, says the complaint.
The Plaintiff worked for Defendants as a remote CSR in Georgia
within the last three years.
American Customer Care "has been providing contact center services
to companies of all sizes."[BN]
The Plaintiff is represented by:
Richard E. Hayber, Esq.
Thomas J. Durkin, Esq.
HAYBER, MCKENNA & DINSMORE, LLC
750 Main Street, Suite 904
Hartford, CT 06103
Phone: (860) 522-8888
Email: tdurkin@hayberlawfirm.com
rhayber@hayberlawfirm.com
- and -
Charles R. Ash, IV, Esq.
ASH LAW, PLLC
402 W Liberty Street
Ann Arbor, MI 48178
Phone: (734) 234-5583
Email: cash@nationalwagelaw.com
- and -
Oscar Rodriguez, Esq.
HOOPER HATHAWAY, P.C.
126 S. Main Street
Ann Arbor, MI 48104-1903
Phone: (734) 662-4426
Email: orod@hooperhathaway.com
AMERICAN ELECTRONIC: Maryland OT Class Certified in Jackson Suit
----------------------------------------------------------------
Judge Theodore D. Chuang of the U.S. District Court for the
District of Maryland grants the Plaintiff's motion for class
certification in the lawsuit styled JESSE JACKSON, Individually and
for Others Similarly Situated, Plaintiff v. AMERICAN ELECTRONIC
WARFARE ASSOCIATES, INC., Defendant, Case No. 8:22-cv-01456-TDC (D.
Md.).
Plaintiff Jesse Jackson, acting individually and on behalf of
similarly situated individuals, has filed this civil action against
his former employer, American Electronic Warfare Associates, Inc.
("AEWA"), in which he alleges that he did not receive overtime pay,
in violation of the Fair Labor Standards Act ("FLSA"), the Maryland
Wage and Hour Law and the Maryland Wage Payment and Collection
Law.
Mr. Jackson asserts the FLSA claim as a collective action under 29
U.S.C. Section 216(b) and the Maryland state law claims as a class
action under Federal Rule of Civil Procedure 23. He has now filed a
Motion for Class Certification of the Maryland state law claims.
AEWA is an aerospace and electronics defense company, headquartered
in California, Maryland, that frequently performs work pursuant to
government contracts. Jackson's Complaint alleges that from
February 2015 to August 2021, he worked for AEWA as an engineer and
was paid on an hourly basis. He was not paid a guaranteed salary,
and if he worked under 40 hours in a week, he was paid for only the
hours he worked.
Mr. Jackson alleges that throughout his employment with AEWA, he
regularly worked in excess of 40 hours in a week, routinely
exceeding 50 hours worked in a week. However, when Jackson worked
more than 40 hours in a week, he was paid the same hourly rate for
all hours worked, including for those exceeding 40 hours in a
single week. He also alleges that AEWA never paid him or other
former employees the wages they were owed when their employment
with AEWA concluded.
From at least June 14, 2019 forward, AEWA has had an acknowledged
policy of paying "straight time for overtime" to employees, who
fall within one of the identified categories of employees exempt
from the requirements of the FLSA as set forth in 29 U.S.C. Section
213(a). Charles Jeffries, the President of AEWA, testified in a
deposition that exempt people get paid straight time for overtime,
while non-exempt people get paid time and a half.
AEWA employed Jackson from Feb. 2, 2015, to Sept. 2, 2021, when he
resigned. AEWA classified Jackson as an exempt employee from
January 2017 forward and has produced Jackson's pay records from
July 2019 through July 2022. During his employment with AEWA, he
worked primarily out of Patuxent River, BLDG 2100, which is located
in Maryland. During his employment, Jackson twice received workers'
compensation payments, once during a pay period in July 2019 and
once during a pay period in May 2021.
In his Motion for Class Certification, Jackson seeks certification
of a class, which the Court will refer to as the "Maryland Overtime
Class," consisting of the following persons:
All current and former [AEWA] employees classified as exempt
and paid straight time for overtime in Maryland from
June 14, 2019 through the date this Court grants
certification.
In its memorandum in opposition to the Motion, AEWA argues that
class certification should be denied on the grounds that the
proposed class is not ascertainable; does not satisfy the Rule
23(a) requirements of commonality, typicality, and adequacy; and
does not satisfy the Rule 23(b)(3) requirement of predominance.
The Court finds that the requirement of ascertainabilty has been
satisfied.
Although Jackson argues that the proposed Maryland Overtime Class
satisfies all four requirements of Rule 23(a), AEWA disputes the
elements of commonality, typicality, and adequacy. The Court finds
that all four requirements have been established.
On the Rule 23(b)(3) elements, Jackson argues that common questions
predominate over individual questions, and that a class action is
the superior means by which to resolve this dispute. AEWA does not
dispute that the superiority requirement has been met but argues
that individual questions predominate over common ones.
On superiority, which is not in dispute, the Court agrees that a
class action is a superior means for resolving this dispute, in
part because Jackson and 17 other named Plaintiffs are already
litigating this case together and have completed pre-certification
discovery, and because the combination of the common legal question
of whether AEWA's straight time for overtime pay policy is lawful,
and the limited amount of damages available for any particular
class member demonstrates that the interest in individual control
of the litigation through separate actions is relatively low.
The Court also finds that predominance has been established. For
these reasons, the Court concludes that the predominance
requirement is satisfied at this stage and will certify the
Maryland Overtime Class as a class action under Rule 23(b)(3).
A full-text copy of the Court's Memorandum Opinion dated Feb. 12,
2024, is available at https://tinyurl.com/5ck7pfct from
PacerMonitor.com.
AMN HOME BUYERS: Chavez Files TCPA Suit in D. Arizona
-----------------------------------------------------
A class action lawsuit has been filed against AMN Home Buyers LLC.
The case is styled as Michael Chavez, individually and on behalf of
all others similarly situated v. AMN Home Buyers LLC doing business
as: Infinity Home Buyer Express, Case No. 2:24-cv-00385-ROS (D.
Ariz., Feb. 26, 2024).
The lawsuit is brought over alleged violation of the Telephone
Consumer Protection Act for Restrictions of Use of Telephone
Equipment.
AMN Home Buyers LLC doing business as Infinity Home Buyer Express
are a multi-service company who BUYS, REPAIRS, MANAGES, and SELLS
HOMES while focusing on providing you with Fast, Friendly, and
Flexible service.[BN]
The Plaintiff is represented by:
Anthony I. Paronich, Esq.
PARONICH LAW, P.C.
350 Lincoln St., Suite 2400
Hingham, MA 02043
Phone: (615) 485-0018
Email: anthony@paronichlaw.com
APPLIED AEROSPACE: Ruiz Files Suit in Cal. Super. Ct.
-----------------------------------------------------
A class action lawsuit has been filed against Applied Aerospace
Structures, Corp. The case is styled as Raul Ramirez Ruiz, Jr.,
individually and on behalf of other members of the general public
similarly situated v. Applied Aerospace Structures, Corp., Case No.
STK-CV-UOE-2024-0002252 (Cal. Super. Ct., San Joaquin Cty., Feb.
23, 2024).
The case type is stated "Unlimited Civil Other Employment."
Applied Aerospace Structures Corporation (AASC) --
https://www.aascworld.com/ -- is an aviation & aerospace firm
providing complex composite and metal bonded structures.[BN]
The Plaintiff is represented by:
Jonathan M. Genish, Esq.
BLACKSTONE LAW
8383 Wilshire Blvd., Ste. 745
Beverly Hills, CA 90211-2442
Phone: 855-786-6355
Fax: 855-786-6356
Email: jgenish@blackstonepc.com
ASPEN DENTAL: Williams Sues Over Failure to Safeguard PII
---------------------------------------------------------
Ella Williams, individually & on behalf of all others similarly
situated v. ASPEN DENTAL MANAGEMENT, INC., Case No. 1:24-cv-01600
(N.D. Ill., Feb. 26, 2024), is brought against Aspen for its
failure to properly secure and safeguard Plaintiff's and other
similarly situated current and former Aspen patients' (collectively
defined herein as the "Class" or "Class Members") personally
identifiable information ("PII") and protected health information
("PHI"), including names, dates of birth, Social Security numbers,
Driver's licenses, health and health insurance information, and
financial data (collectively, the "Private Information") from
cybercriminals.
On February 22, 2024, Aspen announced that its patients' Private
Information stored on its systems had been compromised by a
ransomware attack (the "Data Breach"). Aspen allegedly indicated
that the information impacted by the Data Breach included "Social
Security numbers, driver's license/state ID information, health
information, health insurance information, date of birth, bank
financial data, biometric data, and other sensitive information."
This is one of the most egregious data breaches of recent years as
it appears that the Data Breach took place in April 2023 and in the
months to come Aspen has gone to extraordinary lengths to conceal
the details of the breach, including the number of affected victims
and the exact categories of stolen data.
In fact, Aspen has not reported the Data Breach to the Department
of Health and Human Services Office for Civil Rights ("HHS"), or
any of the state agencies as of the filing of this complaint. Thus,
despite discovering the Data Breach on or around April 2023, Aspen
did not disclose the full scope of the Data Breach or the
information impacted, until on or about February 22, 2024, or over
ten months after the fact.
The Defendant's Incident Statement is inadequate for several
reasons. Omitted from Aspen's Statement were the dates of the Data
Breach, the dates of Defendant's investigation, the date Defendant
detected the Data Breach, the details of the root cause of the Data
Breach, the vulnerabilities exploited, and the remedial measures
undertaken to ensure such a breach does not occur again. To date,
these critical facts have not been explained or clarified to
Plaintiff and Class Members, who retain a vested interest in
ensuring that their Private Information remains protected.
As a direct and proximate result of Defendant's failure to
implement and to follow basic security procedures, Plaintiff's and
Class Members' PII and PHI is now in the hands of cybercriminals.
Plaintiff and Class Members are now at a significantly increased
and certainly impending risk of fraud, identity theft,
misappropriation of health insurance benefits, intrusion of their
health privacy and similar forms of criminal mischief, risk which
may last for the rest of their lives, says the complaint.
The Plaintiff has been a patient of Aspen Dental since October
2022.
Aspen Dental is a Chicago-based dental care provider that has a
network of more than 1,000 locations nationwide and "is the largest
group of branded dental offices in the world."[BN]
The Plaintiff is represented by:
David S. Almeida, Esq.
Britany A. Kabakov, Esq.
ALMEIDA LAW GROUP LLC
849 W. Webster Avenue
Chicago, IL 60614
Phone: (312) 576-3024
Email: david@almeidalawgroup.com
britany@almeidalawgroup.com
BAKERLY BARN: Gibbons Suit Alleges Labor Breaches
-------------------------------------------------
ASHLEY GIBBONS, on behalf of herself and others similarly situated,
Plaintiff v. BAKERLY BARN, LLC, Defendant, Case No. 240203173 (Pa.
Com. Pl., Philadelphia Cty., February 27, 2024) seeks all available
relief under the Pennsylvania Minimum Wage Act.
The Plaintiff alleges that Defendant has violated the PMWA by
failing to pay wages for time associated with various work
activities arising at the beginning and end of the workday wherein
these activities were done off-the-clock.
Based in Easton, PA, Bakerly Barn operates a production and
packaging facility wherein various bread products are produced and
packaged, and then distributed to various customer located
throughout the Commonwealth of Pennsylvania, including within
Philadelphia County.
The Plaintiff is represented by:
Peter Winebrake, Esq.
Mark J. Gottesfeld, Esq.
Deirdre A. Aaron, Esq.
WINEBRAKE & SANTILLO, LLC
715 Twining Road, Suite 211
Dresher, PA 19025
Telephone: (215) 884-2491
BG RETAIL: Ponce Suit Removed to E.D. California
------------------------------------------------
The case captioned as Angela Diana Ponce, on behalf of herself and
others similarly situated v. BG Retail, LLC, a Delaware limited
liability company; and DOES 1 through 50, inclusive, Case No.
24CV000555 was removed from the Superior Court of the State of
California, County of Sacramento, to the U.S. District Court for
the Eastern District of California on Feb. 26, 2024, and assigned
Case No. 2:24-cv-00623-KJM-AC.
The Plaintiffs Complaint asserts claims for: Failure to Pay Minimum
Wages; Failure to Pay Overtime Wages under Labor Code; Meal-Period
Liability under Labor Code; Rest Break Liability under Labor Code;
Violation of Labor Code; Failure to Keep Required Payroll Records
under Labor Code; Reimbursement of Necessary Expenditures under
Labor Code; Penalties Pursuant to Labor Code; and Violation of
Business & Professions Code.[BN]
The Defendants are represented by:
Michael J. Nader, Esq.
Alexandra M. Asterlin, Esq.
Paul M. Smith, Esq.
OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C.
400 Capitol Mall, Suite 2800
Sacramento, CA 95814
Phone: 916-840-3150
Facsimile: 916-840-3159
Email: michael.nader@ogletree.com
alexandra.asterlin@ogletree.com
paul.smith@ogletree.com
- and -
Sona P. Patel, Esq.
OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C.
400 South Hope Street, Suite 1200
Los Angeles, CA 90071
Phone: 213-239-9800
Facsimile: 213-239-9045
Email: sona.patel@ogletree.com
BON SECOURS MERCY HEALTH: Bishop Suit Transferred to E.D. New York
------------------------------------------------------------------
The case styled as Douglas Bishop, Charles Metzger, individually
and on behalf of all others similarly situated v. Bon Secours Mercy
Health, Inc., Perry Johnson & Associates, Inc., Case No.
3:23-cv-00385 was transferred from the U.S. District Court for the
Southern District of Ohio, to the U.S. District Court for the
Eastern District of New York on Feb. 26, 2024.
The District Court Clerk assigned Case No. 1:24-cv-01179-RPK-LGD to
the proceeding.
The nature of suit is stated as Other Statutory Actions for Federal
Trade Commission Act.
Bon Secours Mercy Health -- https://bsmhealth.org/ -- is
transforming health care through emerging technologies,
investments, and partnerships across four areas of focus.[BN]
The Plaintiff is represented by:
Brian Flick, Esq.
DANNLAW
15000 Madison Avenue
Lakewood, OH 44107
Phone: (513) 645-3488
Fax: (216) 373-0536
Email: bflick@dannlaw.com
- and -
Thomas A. Zimmerman., Jr., Esq.
ZIMMERMAN LAW OFFICES, P.C.
77 West Washington Street, Suite 1220
Chicago, IL 60602
Phone: (312) 440-0020
Fax: (312) 440-4180
Email: tom@attorneyzim.com
- and -
Marc E. Dann, Esq.
THE DANN LAW FIRM
2728 Euclid Ave, Suite 300
Cleveland, OH 44115
Phone: (216) 373-0539
Fax: (216) 373-0536
Email: notices@dannlaw.com
The Defendant is represented by:
Jennifer Brumfield, Esq.
3003 Riverside Drive
Cincinnati, OH 45226
Phone: (513) 312-5404
Email: jbrumfield@bakerlaw.com
BPA SALES LP: Toro Files ADA Suit in S.D. New York
--------------------------------------------------
A class action lawsuit has been filed against BPA Sales, LP. The
case is styled as Andrew Toro, on behalf of himself and all others
similarly situated v. BPA Sales, LP, Case No. 1:24-cv-01391
(S.D.N.Y., Feb. 23, 2024).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
BPA Sales -- https://www.bpasales.gift/ -- constantly strives to
bring the most relevant product offerings.[BN]
The Plaintiff is represented by:
Mars Khaimov, Esq.
10826 64th Avenue, Ste. 2nd Floor
Forest Hills, NY 11375
Phone: (917) 915-7415
Email: mars@khaimovlaw.com
CALIFORNIA: May File Bid to Decertify Class in Fitzgerald Suit
--------------------------------------------------------------
Judge Jeffrey T. Miller of the U.S. District Court for the Southern
District of California grants the Defendants' Application for Leave
to File a Motion to Decertify the Class in the lawsuit titled
RHONDA FITZGERALD, an individual, and on behalf of all persons
similarly situated, Plaintiff v. MARCUS POLLARD, et al.,
Defendants, Case No. 3:20-cv-00848-JM-SBC (S.D. Cal.).
After holding oral argument on Oct. 17, 2022, the Court issued an
Order on Nov. 3, 2022, certifying the following class:
Those visitors, from May 5, 2018 to the present, to the
Richard J. Donovan Correctional Facility who were required
to submit to an unclothed search as a condition to visiting
an inmate and were so searched in the absence of
individualized reasonable suspicion to believe that the
visitor intended to smuggle contraband into the Prison, as
evidenced by a failure to provide the basis for the search
on a Form 888 - Notice of Request For Search.
On Nov. 17, 2022, the Defendants filed a Motion for Reconsideration
of Order on Motion for Class Certification. After the motion was
fully briefed, the Court took the motion under submission, without
oral argument, in accordance with Civil Local Rule 7.1(d)(1).
The Court found the Defendants' arguments surrounding the modified
class definition baseless and their assertions related to how this
Court erred in certifying the class under Rule 23 as simply
rehashing arguments already made, although now rewritten as though
the Court was the opposing party and its Order the brief to be
opposed. Accordingly, the Defendants' Motion for Reconsideration of
Order on Motion for Class Certification was denied.
On March 30, 2023, the Ninth Circuit Court of Appeals, in its
discretion, denied the Defendants' petition for permission to
appeal this Court's Nov. 3, 2022 order granting class action
certification. Subsequently, on May 17, 2023, Magistrate Judge
Stormes issued a Scheduling Order relating to discovery and
pretrial proceedings, which states: "all other pretrial motions
must be filed by January 15, 2024."
On Jan. 15, 2024, the Plaintiff filed a Motion for Partial Summary
Judgment. On Jan. 23, 2024, the Defendants filed an Application for
Leave to File a Motion to Decertify the Class and the Plaintiff
duly opposed.
The Defendants filed their Application eight (8) days after the
dispositive motion cutoff, and over eighteen (18) months after the
initial briefing on class certification occurred. The Defendants
assert: (1) Defense counsel was cognizant of the scheduling order's
pretrial motion deadline of Jan. 15, 2024, but assumed that
deadline applied to dispositive motions and discovery motions; (2)
motions to decertify a class can be filed at any time; and (3)
recently conducted discovery shows that the class should be
decertified.
The Defendants' position that motions regarding class certification
are not considered pretrial motions is unsupported, Judge Miller
holds. Regardless, Defense Counsel declares that had he realized
that the scheduling order's deadline applied to a decertification
motion, he would have requested a one-week extension of time to
file the motion.
Taking these circumstances into account, the Court gives Defense
Counsel the benefit of the doubt on the matter and finds that his
delay was not, arguably, unreasonable per se. Thus, the requisite
good cause standard for Rule 16 has been demonstrated, and the
Motion for Decertification will be entertained.
This conclusion is buttressed by the Fed. R. Civ. P. 23(c)(1)(C),
which provides that a motion to decertify must be made before final
judgment, Judge Miller explains.
Here, Judge Miller says, the newly discovered evidence cited by
Defense Counsel may have consequential ramifications for the
certified class. Accordingly, in light of the flexibility and
freedom the Court has in the class certification area, it exercises
its discretion and grants the Defendants' Application for Leave to
File a Motion to Decertify the Class.
In accordance with the foregoing, the Court grants the Defendants'
Application for Leave to File a Motion to Decertify the Class. The
matter will then be taken under submission and a written order will
issue in due course.
A full-text copy of the Court's Order dated Feb. 12, 2024, is
available at https://tinyurl.com/yc4f99sn from PacerMonitor.com.
CHAD ZESKE: Fails to Pay Proper Overtime Wages, Haney and Frank Say
-------------------------------------------------------------------
BAILEE HANEY and JAMES FRANK, individually and on behalf of all
those similarly situated, Plaintiffs v. Chad Zeske, Defendant, Case
No. 24-cv-262 (E.D. Wis., February 28, 2024) accuses the Defendant
of violating the Fair Labor Standards Act and Wisconsin wage and
hour law.
Plaintiffs Bailee Haney and James Frank were employees of Defendant
Chad Zeske at times since February 28, 2021. Despite working more
that 40 hours in various workweeks, Defendant has allegedly failed
and refused to pay Plaintiffs overtime premium compensation.
Chad Zeske owns and operates smoke shops under the name Holy Smokes
in Wisconsin and Michigan. [BN]
The Plaintiffs are represented by:
Larry A. Johnson, Esq.
Connor J. Clegg, Esq.
Timothy P. Maynard, Esq.
Summer H. Murshif, Esq.
HAWKS QUINDEL, S.C.
5150 North Port Washington Road, Suite 243
Milwaukee, WI 53217
Telephone: (414) 271-8650
Facsimile: (414) 207-6079
E-mail: ljohnson@hq-law.com
cclegg@hq-law.com
tmaynard@hq-law.com
smurshid@hq-law.com
CHICAGO, IL: Court Dismisses Jones Adversary Suit With Prejudice
----------------------------------------------------------------
Judge Jacqueline P. Cox of the U.S. Bankruptcy Court for the
Northern District of Illinois dismisses with prejudice the
adversary proceeding styled Tony R. Jones, Plaintiff v. City of
Chicago, Illinois, Defendant, Adv. Case No. 22-00206 (N.D. Ill.).
The bankruptcy case is captioned In Re: Tony R. Jones, Debtor,
Bankr. Case No. 16-26076 (Bankr. N.D. Ill.).
The matter comes before the court on the City of Chicago's Motion
to Dismiss the First Amended Individual and Class Action Complaint
for Damages for Violation of the Automatic Stay. The City seeks to
dismiss the case for lack of subject-matter jurisdiction.
The matter concerns the rights, if any, of Tony R. Jones
("Plaintiff," "Plaintiff-Debtor," or "Debtor"), in a vehicle
impounded and repossessed pre-petition. The City offered to turn
the vehicle over to the Chapter 7 Trustee during the Debtor's
bankruptcy case; the Trustee declined to accept it due to its
inconsequential value.
On Aug. 15, 2016, the Debtor filed this pro se Chapter 7 case.
Because his prior bankruptcy case, Bankr. Case No. 16-22327, had
been dismissed on Aug. 11, 2016, the automatic stay came into
existence in the latter case for 30 days. The earlier case was
dismissed because the Debtor failed to file a credit counseling
certificate as required by 11 U.S.C. Sections 109(h) and 521(b)(1).
The Debtor filed a motion to extend or impose the automatic stay on
Sept. 14, 2016. That motion was granted on Sept. 22, 2016; the
automatic stay was extended generally as to all creditors.
The Debtor scheduled a 1996 Dodge Ram vehicle ("the vehicle")
valued at $2,500 that had been seized by the City of Chicago. The
vehicle was not claimed as exempt. The Debtor scheduled the City of
Chicago Department of Revenue as a secured creditor with an $8,480
secured claim stemming from booting and seizing his vehicle for
traffic tickets. The City was listed as having a lien from the
automobile seizure.
During this Chapter 7 case, the City offered to turn over the
vehicle, which had been impounded pre-petition, to the Chapter 7
Trustee, Phillip D. Levey. The Trustee declined the City's offer.
The Chapter 7 Trustee filed a no-asset report and the Debtor's
debts were discharged under 11 U.S.C. Section 727 on Nov. 9, 2016.
The bankruptcy case was closed on Nov. 14, 2016; the trustee was
discharged.
Note that the Discharge Order states that creditors cannot collect
discharged debts but that "a creditor with a lien may enforce a
claim against the debtors' property subject to that lien unless the
lien was avoided or eliminated. For example, a creditor may have
the right to foreclose a home mortgage or repossess an
automobile."
On July 6, 2017, the Debtor filed a Chapter 13 bankruptcy case pro
se, assigned to Judge A. Benjamin Goldgar (In re Jones, Bankr. Case
No. 17-20197 (Bankr. N.D.Ill. 2017)). The Debtor did not schedule
the vehicle in question or claim it as exempt, but he did schedule
a different vehicle (a 2015 Dodge Journey) and claimed it as
exempt.
On Aug. 7, 2018, his Chapter 13 case was dismissed. The case was
dismissed upon the Court's Order granting the Chapter 13 Trustee's
Motion to Dismiss for unreasonable delay. On Nov. 13, 2018, the
case was closed; the Chapter 13 Trustee was discharged. On Nov. 2,
2022, after the case was dismissed and closed, Charles A. King from
the Chicago Department of Law filed an appearance on behalf of the
City of Chicago.
On May 6, 2019, Chapter 13 Debtors whose vehicles had been
impounded by the City pre-petition (including the Plaintiff-Debtor)
filed an adversary proceeding against the City; it was assigned to
Judge Timothy A. Barnes (Cordova v. City of Chi. (In re Cordova),
Ch. 7 Case No. 19-06255, Adv. No. 19-00684). The Plaintiffs
asserted they had a private right of action to proceed under 11
U.S.C. Section 362(k) and sought actual and punitive damages,
alleging the City violated the automatic stay under Section
362(a)(3), (4), and (6). The Complaint was subsequently amended to
assert class action allegations.
For purposes of Fed.R.Civ.P. 23 (made applicable in adversary
proceedings by Fed.R.Bankr.P. 7023), the Tenth Amended Complaint in
Cordova defined the class as: "All persons whose motor vehicles
were impounded by the City of Chicago under Chicago Municipal Code
Chapter 9-100, et seq., during the period of January 1, 2016 to
June 19, 2019, who filed a Chapter 13 bankruptcy case in the United
States Bankruptcy Court for the Northern District of Illinois
during the aforesaid period, and who were thereby deprived by City
of Chicago of the use or possession of their motor vehicle after
demand for release."
In Cordova, the Plaintiff-Debtor in this case filed a Motion to
Sever and Transfer the Case ("Motion to Sever"), asserting he was
not a member of the proposed class and could not receive class
relief, since during discovery he learned the City disposed of his
1996 Dodge Ram after his Chapter 7 discharge but before his Chapter
13 filing, so he lacked an ownership interest in the vehicle at the
time of his Chapter 13 filing. In that motion, he argued that the
City's "permanent deprivation" of the vehicle violated his rights
under Section 362, and he desired to resolve the merits of his
claim "without the delay of awaiting class certification" and any
potential appeal from a ruling on class certification. On Oct. 20,
2022, the court granted the Motion to Sever.
On Dec. 22, 2022, the Plaintiff-Debtor filed the instant Adversary
Proceeding No. 22-00206 in the closed Chapter 7 bankruptcy case,
without re-opening it, individually and as a class action,
asserting the City violated 11 U.S.C. Sections 362(a)(2) and (a)(6)
when it refused the demands of Chapter 7 debtors for the return of
their impounded vehicles after filing for bankruptcy relief (Jones
v. City of Chicago, Adv. No. 22-00206 (In re Jones), Ch. 7 Case No.
16-26076 (Bankr. N.D.Ill. filed Dec. 22, 2022) (hereinafter
"Jones").
On March 20, 2023, after the City filed a motion to dismiss, the
Plaintiff-Debtor amended the complaint, again asserting individual
and class claims against the City and seeking actual and
compensatory damages for the City's alleged stay violations. The
Plaintiff-Debtor admits that Defendant City offered to turnover the
impounded vehicle to the Chapter 7 Trustee, but the Trustee
declined the City's offer because such property was of
inconsequential value or benefit to the estate. However, he asserts
that when the Trustee declined the City's turnover offer, the
vehicle was presumptively abandoned, and thus, it became his
property.
In the First Amended Complaint, the Plaintiff-Debtor alleges,
individually and on behalf of a class of plaintiffs, the City
violated the stay due to (1) its acts taken to enforce pre-petition
judgments of vehicle impoundment (Section 362(a)(2)); (2) its acts
taken against the Debtor's property e.g., keeping the impounded
vehicle after the Trustee declined the turnover offer) (and
property of class members) to enforce liens that purport to secure
pre-petition claims (Section 362(a)(5)); and (3) its acts taken to
"collect assess, or recover" pre-petition claims against the
Plaintiff-Debtor and others (Section 362(a)(6)).
The Plaintiff-Debtor also argues the City violated Section 554(c)
by refusing to abandon impounded vehicles to the Debtor and the
class members after their Chapter 7 cases were closed, again
relying on the theory that the Chapter 7 Trustees abandoned the
vehicles and they then became the debtors' property.
Like the Cordova plaintiffs, Mr. Jones relies on a private right of
action to proceed under Section 362(k). He defines the class under
Fed.R.Civ.P. 23 as:
All persons whose motor vehicles were impounded by the City
of Chicago under City of Chicago Municipal Code Sections
9-100-120 or 2-14-132, other than for a drug use-related
offense, between May 15, 2012 to the present, who filed a
Chapter 7 bankruptcy case in the United States Bankruptcy
Court for the Northern District of Illinois during the
period of impoundment, who demanded the release of their
vehicle after filing their petition for voluntary
bankruptcy, and who were deprived by City of Chicago of the
use or possession of their motor vehicle after the demand
for release was made.
In this Motion to Dismiss ("Motion"), the City argues that the
adversary complaint should be dismissed (1) for lack of subject
matter jurisdiction because the Debtor lacks standing to assert
stay violations or abandonment claims as to the vehicle and (2) for
failure to state a claim upon which relief can be granted.
The City disputes the Debtor's abandonment theory. It argues to the
contrary that the Trustee did not abandon the impounded vehicle
during the pendency of the chapter 7 case; the vehicle remained
property of the estate and the Debtor had no interest in it.
First, Judge Cox notes, the case has not been formally re-opened.
This case was closed in 2016. A motion to re-open would have
provided due process to the Debtor's creditors, including the City
of Chicago, and the trustee.
Additionally, Judge Cox says, the Adversary Proceeding has been
filed before this Court in a manner that may amount to judge
shopping. The complaint mentions that the City has claimed a
possessory lien against the motor vehicle pursuant to the common
law.
Adversary Proceeding No. 22-00206 may be an effort to get a federal
court to determine whether Illinois law allows the City of Chicago
to claim a possessory lien, Judge Cox opines. By filing this claim
in a bankruptcy case assigned to a judge, who has previously ruled
the City does not have a possessory lien, may amount to judge
shopping, Judge Cox points out.
Judge Cox holds that the adversary proceeding will be dismissed
with prejudice because the case was not reopened under 11 U.S.C.
Section 350(b) and because allowing it to proceed would amount to
judge shopping.
The City also alleges there is no subject matter jurisdiction
because the Debtor lacks standing to assert stay violations or
abandonment claims as to the vehicle. The City asserts the
Plaintiff-Debtor lacks standing since he does not allege he (or the
other plaintiffs) had an interest in the vehicle by claiming an
exemption or that the vehicle was abandoned prior to the closure of
the Chapter 7 case. Thus, the vehicle remained property of the
estate for as long as the stay was in effect.
The Court finds that even when accepting as true all well-pleaded
factual allegations and drawing all reasonable inferences in the
Plaintiff-Debtor's favor, he has not met his burden to show he has
standing by a preponderance of the evidence.
The Court finds the Plaintiff-Debtor lacks standing because he did
not claim the vehicle in question as exempt and the vehicle was not
abandoned back to him. The City had a pre-petition lien on the
vehicle, which the Plaintiff-Debtor did not timely assert was
invalid; the lien survived his chapter 7 bankruptcy discharge.
Thus, Counts I (Section 362(a)(2)), II (Section 362(a)(5)), III
(Section 362(a)(6)), and IV (Section 554(c)) are dismissed with
prejudice under Federal Rule of Civil Procedure 12(b)(1), made
applicable to this proceeding by Federal Rule of Bankruptcy
Procedure 7012(b), because the Debtor-Plaintiff lacked standing.
Accordingly, the Court grants the City's Motion to Dismiss. Since
the Court finds the Debtor lacks standing to assert the stay
violations at issue and because the City did not have a duty to
turn over the vehicle to the Debtor, the Court dismisses Counts I,
II, III, and IV with prejudice under Rules 12(b)(1) and (b)(6),
made applicable to this proceeding by Federal Rule of Bankruptcy
Procedure 7012(b).
The Adversary Complaint is dismissed with prejudice as to both the
Debtor-Plaintiff and as to the putative class.
A full-text copy of the Court's Opinion dated Feb. 12, 2024, is
available at https://tinyurl.com/3xwykbmx from PacerMonitor.com.
CHILDREN’S PLACE: Khalsa Sues Over Misleading Statements
----------------------------------------------------------
RANDEEP SINGH KHALSA, individually and on behalf of all others
similarly situated, Plaintiff v. THE CHILDREN’S PLACE, INC., JANE
ELFERS, and SHEAMUS TOAL, Defendants, Case No. 2:24-cv-01182
(D.N.J., February 28, 2024) asserts claims under under Sections
10(b) and 20(a) of the Exchange Act and Rule 10b-5 in connection
with the false and misleading statements issued or made by the
Defendants.
This is a class action on behalf of persons and entities that
purchased or otherwise acquired The Children's Place securities
between March 16, 2023 and February 8, 2024, inclusive. Throughout
the said period, Defendants made materially false and/or misleading
statements, as well as failed to disclose material adverse facts
about The Children's Place's business, operations, and prospects.
Specifically, Defendants failed to disclose to investors that,
among other things, the company was engaged in aggressive
promotions, and that, as a result, the company’s inventory values
were overstated, says the suit.
Headquartered in Secaucus, NJ, The Children's Place is a specialty
portfolio of children's brands. The company designs, contracts to
manufacture, and sells apparel, accessories and footwear. Its
common stock trade on the NASDAQ exchange under the symbol "PLCE."
[BN]
The Plaintiff is represented by:
Donald A. Ecklund, Esq.
Kevin Cooper, Esq.
CARELLA, BYRNE, CECCHI, BRODY & AGNELLO, P.C.
5 Becker Farm Road
Roseland, NJ 07068
Telephone: (973) 994-1700
Facsimile: (973) 994-1744
E-mail: decklund@carellabyrne.com
kcooper@carellabyrne.com
CMG MEDIA: Wins Bid to Compel Arbitration; Hawkins Suit Stayed
--------------------------------------------------------------
Judge J. P. Boulee of the U.S. District Court for the Northern
District of Georgia, Atlanta Division, grants the Defendant's
Motion to Compel Arbitration in the lawsuit titled FELICIA HAWKINS,
on behalf of herself and all others similarly situated, Plaintiff
v. CMG MEDIA CORPORATION (d/b/a COX MEDIA GROUP), Defendant, Case
No. 1:22-cv-04462-JPB (N.D. Ga.).
Plaintiff Felicia Hawkins filed this class action complaint against
the Defendant on Nov. 8, 2022. She amended her complaint on March
13, 2023. In the amended pleading, the Plaintiff, a subscriber to
the Defendant's website, WSBTV.com, alleges that the Defendant
illegally shared her personal identifiable information without her
consent in violation of the Video Privacy Protection Act.
When the lawsuit was filed, Edward Bienkowski was also a named
plaintiff. He voluntarily dismissed his claims on April 10, 2023.
On March 27, 2023, the Defendant filed the instant Motion to Compel
Arbitration. In the motion, the Defendant asks the Court to compel
the parties to arbitration and stay the case. In short, the
Defendant asserts that the Court should compel arbitration because
the Plaintiff assented to an arbitration agreement when she created
her WSBTV.com account via the Facebook platform.
WSBTV.com is a website which hosts local news content consisting of
written articles and video clips. Although the website's content is
free and generally available to the public, WSBTV.com users may
register for an account. One way a user can register for an account
is by logging in through Facebook, Google or Amazon.
On Aug. 23, 2022, the Plaintiff registered for a WSBTV.com account
by selecting the option to log in through Facebook. Once she
clicked on that option, she was led to the webpage shown in Figure
1 in this Order.
Figure 1 shows that the webpage contained an option to "continue"
or "cancel." Under those options was the following text: "By
continuing, Cox Media Group Memberships JR will receive ongoing
access to the information you share and Facebook will record when
Cox Media Group Members JR accesses it. Learn more about this
sharing and the settings you have. Cox Media Group Memberships JR's
Privacy Policy and Terms."
The words "Privacy Policy" and "Terms," which were on the bottom
line, were hyperlinked and set off in blue text. Ultimately, the
Plaintiff selected "continue."
As stated, on the login through Facebook screen, the word "Terms"
was hyperlinked. If clicked on, a user would be taken to the
Visitor Agreement. The Visitor Agreement stated that it "is a
binding legal contract between you and the CMG Affiliate that
operates this website . . . . By using our website, application,
mobile application and/or any services offered through our website,
application, and/or mobile application . . . , you accept the terms
of this agreement." Particularly relevant here, the Visitor
Agreement contained an arbitration provision.
The Defendant asks the Court to compel arbitration under the
Federal Arbitration Act ("FAA").
A strong presumption exists in favor of arbitration; however, the
FAA does not require the parties to arbitrate if they have not
agreed to do so, Judge Boulee says. Thus, any presumption favoring
arbitration does not apply to disputes about whether an agreement
to arbitrate has been made.
The primary issue in this case is whether the Plaintiff assented to
the arbitration provision when she registered for her WSBTV.com
account. Contracts formed through the internet are typically
classified by the way in which the user purportedly gives her
assent to be bound by the associated terms. In general, there are
four ways to form an internet contract: (1) browsewraps; (2)
clickwraps; (3) scrollwraps; and (4) sign-in wraps.
The Defendant argues that the Plaintiff assented to the arbitration
agreement through a valid sign-in wrap, or alternatively, a valid
browsewrap agreement. The Plaintiff, on the other hand, asserts
that merely placing a link to a website's Terms and Conditions on a
sign-up page without in any way indicating that taking an action on
that page will purportedly bind the user to detailed contractual
provisions falls woefully short of what is required to create a
contract.
Here, the login through Facebook screen never informed the
Plaintiff that acceptance of a separate agreement was required
before she could access the service, which is the defining feature
of a sign-in wrap agreement. Rather, the screen informed the
Plaintiff that by continuing, "Cox Media Group Memberships JR will
receive ongoing access to the information you share and Facebook
will record when Cox Media Group Members JR accesses it."
In sum, because the login screen did not contain language which
would show that the Plaintiff needed to agree to terms to sign up,
the Court finds that this was not a sign-in wrap agreement. Thus,
to the extent that the Defendant argues that the Plaintiff assented
to arbitration through a sign-in wrap agreement, the Motion to
Compel is denied.
The Defendant also argues that the Plaintiff assented to the
arbitration agreement through a valid browsewrap agreement. As
previously stated, browsewrap agreements generally post terms and
conditions on a website via a hyperlink at the bottom of the
screen. The parties seem to agree that browsewrap agreements are
only enforced when (1) the user has actual knowledge of the terms
and conditions, or (2) the hyperlink to the terms and conditions is
conspicuous enough to put a reasonably prudent person on inquiry
notice.
The Court will assume that the Plaintiff did not have actual
knowledge of the terms and conditions. The Court must, thus, decide
whether the hyperlink to the terms and conditions was conspicuous
enough to put a reasonably prudent person on inquiry notice.
Here, the Court recognizes that the website did not contain an
explicit textual notice that continued use of the website
demonstrates a user's intent to be bound by an agreement. In other
words, the website lacked language such as "By continuing, you
agree to the Terms." Importantly, the lack of an explicit textual
notice does not end the Court's inquiry—the Court must still
assess whether a reasonably prudent user would have inquiry notice
of the terms and conditions.
In the Court's view, the website at issue here has features that
put a reasonable user on notice that he or she is assenting to the
Terms and Conditions. Among other things, to complete the
registration of the account, a user must press the continue button.
A user could not create an account or agree to terms merely through
continued use of the website. In other words, the user in this case
must affirmatively act in order to be bound by any terms and
conditions.
By requiring a user to press the continue button and by explaining
the legal significance of clicking on the continue button, the
Court is unpersuaded by the Plaintiff's argument that she had no
way of knowing that continuing would bind her to terms and
conditions. Rather, the Court finds that a reasonable person would
understand that by agreeing to continue, she would be bound by the
information sharing provisions and the additional "Terms" contained
in the hyperlink.
In sum, the Court has considered the design and content of the
webpage and also whether the webpage contained an explicit textual
notice. After careful consideration, the Court finds that the
undisputed facts establish that the inquiry notice standard is
satisfied and that the Plaintiff manifestly assented to the
Arbitration Provision when she pressed the continue button and
signed up for her WSBTV.com account.
Therefore, because the Plaintiff assented to arbitration through
the browsewrap agreement, Judge Boulee grants the Motion to
Compel.
For the reasons set forth in this Order, the Court rules that the
Defendant's Motion to Compel Arbitration is granted. The parties
are ordered to submit this case to arbitration.
It is further ordered that this action be stayed and will be
administratively closed pending completion of arbitration pursuant
to the arbitration provision in this case. The parties will notify
the Court upon completion of arbitration, and either party will
have the right to move to reopen this case to resolve any remaining
issues of contention.
A full-text copy of the Court's Order dated Feb. 12, 2024, is
available at https://tinyurl.com/yj62v2pu from PacerMonitor.com.
CONTINENTAL AG: Ammons Sues Over Tire Price Monopoly
----------------------------------------------------
LAURA AMMONS; BRANDON DERRICK; LETIA DICKERSON; JEFFREY HOLT; JERRY
MERKEL; and LYNN SEDA, individually and on behalf of all others
similarly situated, Plaintiffs 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 No. 1:24-cv-01513 (S.D.N.Y., Feb. 28, 2024)
alleges violation of the Sherman Act.
The Plaintiff alleges in the complaint that the Defendants are
engaged in an unlawful agreement, as some of 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 Tire prices is supported
by, among other things, by (i) motive and (ii) opportunity, in a
market with (iii) high barriers to entry, (iv) price inelasticity,
and (iv) interchangeable products. Defendants are also recidivist
bad actors.
Additionally, the Defendants' violations of the antitrust laws have
caused Plaintiff and members of the Class to pay higher prices for
Tires than they would have in the absence of Defendants' illegal
contract, combination, or conspiracy, and, as a result, Plaintiff
and members of the Class have suffered damages in the form of
paying supracompetitive prices for Tires, the suit asserts.
CONTINENTAL AG 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 Plaintiffs are represented by:
Thomas H. Burt, Esq.
Lillian R. Grinnell, Esq.
WOLF HALDENSTEIN ADLER
FREEMAN & HERZ LLP
270 Madison Avenue
New York, NY 10016
Telephone: (212) 545-4600
Facsimile: (212) 686-0114
Email: burt@whafh.com
grinnell@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 -
Don Bivens, Esq.
DON BIVENS, PLLC
15169 N. Scottsdale Road, Suite 205
Scottsdale, AZ 85254
Telephone: (602) 708-1450
Email: don@donbivens.com
CONTINENTAL AG: Bengel Sues Over Tire Price Monopoly
----------------------------------------------------
JOHN (JACK) BENGEL, individually and on behalf of all others
similarly situated, Plaintiff v. CONTINENTAL AKTIENGESELLSCHAFT;
CONTINENTAL TIRE THE AMERICAS, LLC; COMPAGNIE GENERALE DES
ETABLISSEMENTS MICHELIN; 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 No. 5:24-cv-00363 (N.D. Ohio, Feb. 27,
2024) alleges violation of the Sherman Act.
The Plaintiff alleges in the complaint that the Defendants are
engaged in an unlawful agreement, as some of 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 sold in the US. Defendants coordinated price
increases, including through public communications.
The Defendants' unlawful agreement to fix Tire prices is supported
by, among other things, high market concentration, significant
barriers to entry, lack of economic substitutes for Tires, price
inelasticity, motive, and opportunity to conspire. The Defendants'
violations of the antitrust laws have caused Plaintiff and members
of the Class to pay higher prices for Tires than they would have in
the absence of Defendants' illegal contract, combination, or
conspiracy, and, as a result, Plaintiff and members of the Class
have suffered damages in the form of paying supracompetitive prices
for Tires, says the suit.
CONTINENTAL AG 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:
Walter W. Noss, Esq.
Christopher M. Burke, Esq.
Yifan (Kate) Lv, Esq.
KOREIN TILLERY P.C.
707 Broadway, Suite 1410
San Diego, CA 92101
Telephone: (619) 625-5620
Facsimile: (314) 241-3525
Email: wnoss@koreintillery.com
cburke@koreintillery.com
klv@koreintillery.com
- and -
Vincent Briganti, Esq.
Raymond Girnys, Esq.
Roland St. Louis, Esq.
Nicole A. Veno, Esq.
Claire Noelle Forde, Esq.
LOWEY DANNENBERG, P.C.
44 South Broadway, Suite 1100
White Plains, NY 10601
Telephone: (914) 997-0500
Facsimile: (914) 997-0035
Email: vbriganti@lowey.com
rgirnys@lowey.com
rstlouis@lowey.com
nveno@lowey.com
nforde@lowey.com
DANONE WATERS: Dotson Sues Over Deceptive Labeling of Bottled Water
-------------------------------------------------------------------
MICHAEL DOTSON, individually, and on behalf of others similarly
situated, Plaintiff v. DANONE WATERS OF AMERICA, LLC, Defendant,
Case No. 24STCV04928 (Cal. Super., Los Angeles Cty., February 27,
2024) seeks for damages, injunctive relief, and any other available
legal or equitable remedies, for violations of Unfair Competition
Law.
The class action arises from the illegal actions of Defendant in
advertising and labeling its Evian bottled water as Natural Spring
Water, when the products contain microplastics. As a result of
Defendant's fraudulent labeling, Plaintiff and the Class paid a
price premium for premium products, but instead received
non-premium products. The Plaintiff seeks an order requiring
Defendant to immediately cease such acts of unlawful, unfair, and
fraudulent business practices and requiring Defendant to correct
its actions, says the suit.
Danone Waters of America manufactures, advertises, markets, sells,
and distributes Evian bottled water throughout California and the
United States. [BN]
The Plaintiff is represented by:
Todd M. Friedman, Esq.
Adrian R. Bacon, Esq.
LAW OFFICES OF TODD M. FRIEDMAN, P.C.
21031 Ventura Blvd Suite 340
Woodland Hills, CA 91364
Telephone: (323) 306-4234
Facsimile: (866) 633-0228
E-mail: tfriedman@toddflaw.com
abacon@toddflaw.com
DIAMONDBACK ENERGY: Faces Webb Suit Over Unlawful Acquisition
-------------------------------------------------------------
PLYMOUTH COUNTY RETIREMENT ASSOCIATION and KENNETH WEBB, on behalf
of themselves and all others similarly situated, Plaintiffs v.
TRAVIS D. STICE, VINCENT K. BROOKS, DAVID L. HOUSTON, REBECCA A.
KLEIN, STEPHANIE K. MAINS, MARK L. PLAUMANN, MELANIE M. TRENT,
FRANK D. TSURU, STEVEN E. WEST, and DIAMONDBACK ENERGY, INC.,
Defendants, Case No. 2024-0183 (Del. Ch., February 28, 2024)
accuses the Diamondbacks' board of directors of breaching their
fiduciary duties in connection with Diamondback's acquisition of
fellow energy company Endeavor Energy Resources, L.P. in a deal
valued at $26 billion.
Among other things, the acquisition's stockholders agreement
imposes sweeping standstill restrictions on the Autry Stephens
Family for so long as they own at least 10% of the Diamondback's
total outstanding shares. Moreover, these restrictions undermine
the stockholder franchise: a board that collectively possessed
little voting power on its own exploited a transformative
acquisition to appropriate for itself effective control of their
own re-election. Accordingly, Plaintiffs seek an injunction
enjoining the enforcement of the incumbent voting requirement and
the anti-activism transfer restrictions.
Headquartered in Midland, TX, Diamondback is an oil and natural gas
company focused on the acquisition, development, exploration and
exploitation of unconventional, onshore oil and natural gas
reserves in the Permian Basin in West Texas. [BN]
The Plaintiffs are represented by:
Ned Weinberger, Esq.
Mark D. Richardson, Esq.
Brendan W. Sullivan, Esq.
LABATON KELLER SUCHAROW LLP
222 Delaware Ave., Suite 1510
Wilmington, DE 19801
Telephone: (302) 573-2540
E-mail: nweinberger@labaton.com
mrichardson@labaton.com
bsullivan@labaton.com
- and -
John Vielandi, Esq.
LABATON KELLER SUCHAROW LLP
140 Broadway
New York, NY 10005
Telephone: (212) 907-0700
- and -
Jeremy Friedman, Esq.
David Tejtel, Esq.
Lindsay La Marca, Esq.
FRIEDMAN OSTER & TEJTEL PLLC
493 Bedford Center Road, Suite 2D
Bedford Hills, NY 10507
Telephone: (888) 529-1108
DONALD TRUMP: Collier Appeals Case Dismissal
--------------------------------------------
IRINA COLLIER is taking an appeal from a court order in the lawsuit
entitled Irina Collier, on behalf of herself and all others
similarly situated, Plaintiff, v. Donald Trump, Defendant, Case No.
1:23-cv-01820-UNA, in the U.S. District Court for the District of
Columbia.
The Plaintiff, a resident of San Diego, California, sued former
President Donald Trump for seditious conspiracy and contempt of
court.
On July 12, 2023, the Court dismissed the pro se complaint without
prejudice through an Order entered by Judge Trevor N. McFadden. The
Court ruled that it cannot exercise jurisdiction over such a
claim.
The appellate case is captioned Irina Collier v. Donald Trump, Case
No. 24-7018, in the United States Court of Appeals for the District
of Columbia Circuit, filed on February 16, 2024. [BN]
Plaintiff-Appellant IRINA COLLIER, on behalf of herself and all
others similarly situated, appears pro se.
DQPCHACHA FURNITURE: Lopez Sues Over Labor Law Breaches
-------------------------------------------------------
MARTIN LOPEZ, on behalf of himself and others similarly situated,
Plaintiff v. DQPCHACHA FURNITURE INC. and CHRISTIAN CHACHA,
Defendants, Case No. 1:24-cv-01478 (S.D.N.Y., February 27, 2024)
accuses the Defendants of violating the Fair Labor Standards Act,
the New York Labor Law (NYLL) and the New York State Wage Theft
Prevention Act.
The Defendants employed Plaintiff to work as a non-exempt painter
for the Woodwork Company from in or about 2016 until on or about
July 21, 2023. The Defendants, however, have knowingly and
willfully failed to pay Plaintiff his lawfully earned overtime
compensation in direct contravention of the FLSA and NYLL. Despite
being manual workers, Defendants also failed to properly pay
Plaintiff within seven calendar days after the end of the week in
which these wages were earned, says the suit.
Based in Mt. Vernon, NY, DQPChacha Furniture Inc. owns and operates
a commercial and residential woodwork company. [BN]
The Plaintiff is represented by:
Justin Cilenti, Esq.
Peter H. Cooper, Esq.
CILENTI & COOPER, PLLC
60 East 42nd Street - 40th Floor
New York, NY 10165
Telephone: (212) 209-3933
Facsimile. (212) 209-7102
E-mail: info@jcpclaw.com
EASY WORKFORCE: Appeals Class Cert. Order in BIPA Suit to 7th Cir.
------------------------------------------------------------------
WORKEASY SOFTWARE, LLC, formerly known as EASY WORKFORCE SOFTWARE,
LLC is taking an appeal from a court order in the lawsuit entitled
Maria Tapia-Rendon, on behalf of herself and all others similarly
situated, Plaintiff, v. Employer Solutions Staffing Group II, LLC;
United Tape & Finishing Co., Inc.; and Easyworkforce Software, LLC,
Defendants, Case No. 1:21-cv-03400, in the U.S. District Court for
the Northern District of Illinois.
The case arises from the Defendants' violation of the Biometric
Information Privacy Act and common-law claims for negligence and
intrusion upon seclusion by collecting and disclosing the
biometrics of the Plaintiff and similarly situated customers
without consent.
On Aug. 15 2023, Judge Matthew F. Kennelly granted the plaintiffs'
motion for class certification and certified the following class
under Rule 23(b)(3): (a) The Class: All individuals who used any
cloud-based EWF biometric device in Illinois on or after June 24,
2016. (b) The Subclass: All Class members who used a cloud-based
EWF biometric device in Illinois on or before April 30, 2022. The
Court also appointed the following attorneys as class counsel:
Thomas R. Kayes of The Civil Rights Group, LLC and J. Dominick
Larry of Nick Larry Law, LLC.
On Feb. 2 2024, the Court denied EWF's motion for reconsideration
of the class certification order.
The appellate case is captioned Workeasy Software, LLC v. Maria
Tapia-Rendon, Case No. 24-8004, in the United States Court of
Appeals for the Seventh Circuit, filed on February 16, 2024. [BN]
Plaintiff-Respondent MARIA TAPIA-RENDON, on behalf of herself and
all others similarly situated, is represented by:
James Dominick Larry, Esq.
NICK LARRY LAW LLC
1720 W. Division Street
Chicago, IL 60622
Telephone: (773) 694-4669
Defendant-Petitioner WORKEASY SOFTWARE, LLC, formerly known as EASY
WORKFORCE SOFTWARE, LLC, is represented by:
Josh M. Kantrow, Esq.
LEWIS BRISBOIS BISGAARD & SMITH LLP
550 W. Adams Street
Chicago, IL 60181
Telephone: (312) 345-1718
FIRST AID: Violates Caller ID Rules, Lewis Suit Alleges
-------------------------------------------------------
ADAM LEWIS, individually and on behalf of all others similarly
situated v. FIRST AID BEAUTY, LIMITED, Case No. CACE-24-002823
(Fla. Cir., 17th Judicial, Broward Cty., February 28, 2024) seeks
relief and damages over Defendant's violations of the Caller ID
Rules of the Florida Telephone Solicitation Act.
The Plaintiff brings this class action alleging that Defendant
breached the FTSA's Caller ID Rules by intentionally transmitting
to Plaintiff's caller ID services a telephone number that was not
capable of receiving telephone calls. The Defendant allegedly
conducts the illegal practice each time it makes telephonic sales
calls via text message to customers, including Plaintiff.
First Aid Beauty manufactures and sells skin beauty and skin care
products throughout the country via its online store. Its corporate
office is located in Newton, MA. [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
Telephone: (202) 709-5744
Facsimile: (866) 893-0416
E-mail: josh@sjlawcollective.com
shawn@sjlawcollective.com
FITON INC: Endres Sues Over Unlawful Private Information Disclosure
-------------------------------------------------------------------
JENNIFER ENDRES, individually and on behalf of all others similarly
situated, Plaintiff v. FITON INC, Defendant, Case No. 2:24-cv-01589
(C.D. Cal., February 27, 2024) alleges violations of the Video
Privacy Protection Act.
According to the complaint, Defendant FitOn violated Plaintiff's
privacy rights under federal law by knowingly disclosing consumers'
personally identifiable information, including "information which
identifies a person as having requested or obtained specific video
materials or services from a video tape provider," through the use
of a hidden tracking code created by Meta Platforms, Inc. (formerly
known as Facebook) and integrated by FitOn into FitOn's online
video service platforms.
Headquartered in West Hollywood, CA, FitOn owns and operates the
FitOn platform, which includes their flagship website,
fitonapp.com, and the "FitOn" mobile application. It offers a
catalog of fitness and wellness courses and content for consumers
to watch and to motivate them to reach their fitness and wellness
goals over time. [BN]
The Plaintiff is represented by:
Nicholas F. Wasdin, Esq.
DWOSKIN WASDIN LLP
110 N. Wacker
Chicago, IL 60606
Telephone: (312) 343-5361
E-mail: nwasdin@dwowas.com
- and -
Robert G. Loewy, Esq.
LAW OFFICES OF ROBERT G. LOEWY, P.C
20 Enterprise, Suite 310
Aliso Viejo, CA 92656
Telephone: (949) 468-7150
E-mail: rloewy@rloewy.com
FLYWIRE CORPORATION: Jones Sues Over Stockholders Voting Rights
---------------------------------------------------------------
AARON JONES, individually and on behalf of all others similarly
situated stockholders of FLYWIRE CORPORATION, Plaintiff v. ALEX
FINKELSTEIN; MATTHEW HARRIS; GRETCHEN HOWARD; MICHAEL MASSARO;
DIANE OFFEREINS; PHILLIP RIESE; EDWIN SANTOS; and FLYWIRE
CORPORATION, Defendants, Case No. 2024-0178 (Del. Ch., Feb. 28,
2024) seeks to declare the Company's advance notice bylaw invalid
and void.
According to the complaint, Flywire has an advance notice bylaw
that requires any stockholder seeking to nominate a candidate to
the board of directors (the "Board") to provide advance notice of
such nomination to the Company (the "Advance Notice Bylaw"). These
provisions serve as an unlawful deterrent to those seeking to
meaningfully participate in the nomination process—a fundamental
right of stockholders of a Delaware corporation.
As a result, the Advance Notice Bylaw effectively limits the scope
of stockholders' voting rights to voting for or against candidates
nominated by the Board and is fundamentally inconsistent with the
notion that stockholders' right to vote includes the right to
nominate, says the suit.
FLYWIRE CORPORATION is a global payments enablement and software
company in the education, healthcare, travel and B2B industries.
The Company combines its proprietary global payments network,
next-gen payments platform and vertical-specific software to
deliver the most important and complex payments for clients and
their customers. [BN]
The Plaintiff is represented by:
Kimberly A. Evans, Esq.
Lindsay K. Faccenda, Esq.
Irene R. Lax, Esq.
Daniel M. Baker, Esq.
Robert Erikson, Esq.
BLOCK & LEVITON LLP
3801 Kennett Pike, Suite C-305
Wilmington, DE 19807
Telephone: (302) 499-3600
Email: kim@blockleviton.com
lindsay@blockleviton.com
irene@blockleviton.com
daniel@blockleviton.com
robby@blockleviton.com
GAP INC: Bourgeois Appeals Privacy Suit Dismissal to 1st Cir.
-------------------------------------------------------------
JODI BOURGEOIS is taking an appeal from a court order dismissing
her lawsuit entitled Jodi Bourgeois, on behalf of herself and all
others similarly situated, Plaintiff, v. Gap, Inc., et al.,
Defendants, Case No. 1:23-cv-00394-LM, in the U.S. District Court
for the District of New Hampshire.
The case arises from the Defendants' alleged violation of the New
Hampshire Driver Privacy Act, Revised Statutes Section 260:14, by
disclosing the personal information of customers, including their
drivers' license information, to a third party without consent.
On Sept. 6, 2023, the Defendant filed a motion to dismiss for
failure to state a claim, which the Court granted through an Order
entered by Judge Landya B. McCafferty on Dec. 20, 2023. The Clerk
was directed to enter judgment and close the case.
The appellate case is captioned Bourgeois v. Gap, Inc., et al.,
Case No. 24-1150, in the United States Court of Appeals for the
First Circuit, filed on February 16, 2024.
The briefing schedule in the Appellate Case states that:
-- Appearance form was due on March 1, 2024; and
-- Docketing statement was due on March 1, 2024. [BN]
Plaintiff-Appellant JODI BOURGEOIS, on behalf of herself and all
others similarly situated, is represented by:
Philip Lawrence Fraietta, Esq.
Matthew A. Girardi, Esq.
BURSOR & FISHER PA
1330 Avenue of the Americas, 32nd Fl.
New York, NY 10019
Telephone: (646) 837-7150
- and -
Benjamin Thomas King, Esq.
DOUGLAS LEONARD & GARVEY PC
14 South St., Ste. 5
Concord, NH 03301
Telephone: (603) 224-1988
Defendants-Appellees GAP, INC., et al. are represented by:
Alessandra M. Givens, Esq.
KING & SPALDING LLP
50 California St.
San Francisco, CA 94111
Telephone: (415) 318-1200
- and -
Kathleen M. Mahan, Esq.
HINCKLEY ALLEN & SNYDER LLP
650 Elm St., Ste. 500
Manchester, NH 03101
Telephone: (603) 545-6118
- and -
Michael Roth, Esq.
KING & SPALDING LLP
633 W. 5th St., Ste. 1600
Los Angeles, CA 90071
Telephone: (213) 443-4355
- and -
Anne M. Voigts, Esq.
KING & SPALDING LLP
601 S. California Ave., Ste. 100
Palo Alto, CA 94304
Telephone: (650) 422-6710
GOLDEN CORRAL: Fails to Prevent Data Breach, Bennett Alleges
------------------------------------------------------------
WAYLAND BENNETT, individually and on behalf of all others similarly
situated, Plaintiff v. GOLDEN CORRAL CORPORATION, Defendant, Case
No. 5:24-cv-00124-FL (E.D.N.C., Feb. 27, 2024) alleges violation of
the North Carolina Unfair and Deceptive Trade Practices Act.
The Plaintiff alleges in the complaint that the Defendant's data
security failures allowed a targeted cyberattack to compromise
Defendant's network (the "Data Breach") which contained personally
identifiable information ("PII" or "Private Information") of
Plaintiff and other individuals.
The Data Breach was a direct result of the Defendant's failure to
implement adequate and reasonable cyber-security procedures and
protocols necessary to protect individuals' Private Information
with which it was hired to protect, says the suit.
GOLDEN CORRAL CORPORATION owns, operates, and franchises family
dining restaurants. The Company offers steak, seafood, shrimp,
chicken, sirloin, omelets, pancakes, sausages and bacon, fruits,
vegetables, and desserts. Golden Corral serves customers in the
United States. [BN]
The Plaintiff is represented by:
Scott C. Harris
MILBERG COLEMAN BRYSON
PHILLIPS GROSSMAN, PLLC
900 W. Morgan St.
Raleigh, NC 27603
Telephone: (919) 600-5003
Email: sharris@milberg.com
- and -
Gary M. Klinger, Esq.
MILBERG COLEMAN BRYSON
PHILLIPS GROSSMAN, PLLC
227 W. Monroe St., Ste. 2100
Chicago, IL 60606
Telephone: (866) 252-0878
Email: gklinger@milberg.com
- and -
Kenneth J. Grunfeld, Esq.
KOPELOWITZ OSTROW, P.A.
65 Overhill Road
Bala Cynwyd, PA 19004
Telephone: (954) 525-4100
Email: grunfeld@kolawyers.com
GOLDEN CORRAL: Fails to Prevent Data Breach, Brand Suit Alleges
---------------------------------------------------------------
CARLTON BRAND, individually and on behalf of all others similarly
situated, Plaintiff v. GOLDEN CORRAL CORPORATION, Defendant, Case
No. 5:24-cv-00132-FL (E.D.N.C., Feb. 28, 2024) is a class action
against the Defendant for its failure to safeguard and secure the
personally identifiable information ("PII").
According to the complaint, as a result of the Defendant's
negligence, between approximately August 11, 2023 and August 15,
2023, cybercriminals were able to gain access to the Defendant's
computer records and access this sensitive and valuable PII (the
"Data Breach").
Despite learning of the Data Breach approximately six months
beforehand, the Defendant did not begin alerting Plaintiff and
other victims of the Data Breach until on or about February 16,
2023. Defendant owed a non-delegable duty to Plaintiff and Class
Members to implement and maintain reasonable and adequate security
measures to secure, protect, and safeguard their PII against
unauthorized access and disclosure. As a result of the Defendant's
inadequate security and breach of its duties and obligations, the
Data Breach occurred, and the Plaintiff's and Class Members' PII
was accessed and disclosed, the suit alleges.
GOLDEN CORRAL CORPORATION owns, operates, and franchises family
dining restaurants. The Company offers steak, seafood, shrimp,
chicken, sirloin, omelettes, pancakes, sausages and bacon, fruits,
vegetables, and desserts. [BN]
The Plaintiff is represented by:
Scott C. Harris, Esq.
MILBERG COLEMAN BRYSON
PHILLIPS GROSSMAN, PLLC
900 W. Morgan St.
Raleigh, NC 27603
Telephone: (919) 600-5003
Email: sharris@milberg.com
- and -
Todd S. Garber, Esq.
Andrew C. White, Esq.
FINKELSTEIN, BLANKINSHIP
FREI-PEARSON & GARBER, LLP
One North Broadway, Suite 900
White Plains, NY 10601
Telephone: (914) 298-3281
Email: tgarber@fbfglaw.com
awhite@fbfglaw.com
GOLDEN CORRAL: Fails to Prevent Data Breach, Brooks Alleges
-----------------------------------------------------------
CHRISTIE BROOKS, individually and on behalf of all others similarly
situated, Plaintiff v. GOLDEN CORRAL CORPORATION, Defendant, Case
No. 5:24-cv-00129-D-RJ (E.D.N.C., Feb. 28, 2024) is an action
arising from the recent cyberattack resulting in a data breach of
sensitive information in the possession and custody and control of
the Defendant (the "Data Breach").
According to the complaint, the Data Breach occurred on August 11,
2023. However, the Defendant did not become aware of suspicious
activity on its network until four days later, on August 15, 2023,
providing cybercriminals unfettered access to its network system
until Golden Corral discovered the Breach.
The Defendant's failure to timely detect and report the Data Breach
made its employees vulnerable to identity theft without any
warnings to monitor their financial accounts or credit reports to
prevent unauthorized use of their highly sensitive personal
identifiable information and protected health information (together
"PII/PHI"). As a result of its inadequate cybersecurity, Defendant
exposed Plaintiff's PII/PHI for theft by cybercriminals and sale on
the dark web, says the suit.
GOLDEN CORRAL CORPORATION owns, operates, and franchises family
dining restaurants. The Company offers steak, seafood, shrimp,
chicken, sirloin, omelettes, pancakes, sausages and bacon, fruits,
vegetables, and desserts. [BN]
The Plaintiff is represented by:
Joel R. Rhine, Esq.
RHINE LAW FIRM, P.C.
North Carolina State Bar No. 16028
1612 Military Cutoff, Suite 300
Wilmington, NC 28403
Telephone: (910) 772-9960
Facsimile: (910) 772-9062
Email: jrr@rhinelawfirm.com
- and -
Samuel J. Strauss, Esq.
Raina C. Borrelli, Esq.
TURKE & STRAUSS LLP
613 Williamson St., Suite 201
Madison, WI 53703
Telephone: (608) 237-1775
Facsimile: (608) 509-4423
Email: sam@turkestrauss.com
raina@turkestrauss.com
GOLDEN CORRAL: Hunt Sues Over Unprotected Private Information
-------------------------------------------------------------
ASHLEY HUNT, individually, and on behalf of all others similarly
situated, Plaintiff v. GOLDEN CORRAL CORPORATION, Defendant, Case
No. 5:24-cv-00125-D (D.N.C., February 27,2024) arises from its
failure to properly secure and safeguard Plaintiff's and Class
members' personally identifiable information stored within
Defendant's information network and asserts claims for negligence,
negligence per se, breach of implied contract, breach of implied
covenant of good faith and fair dealing, and breach of fiduciary
duty, and unjust enrichment.
While Defendant claims to have experienced the breach as early as
August 15, 2023, Defendant did not inform victims of the data
breach until February 2024. As a result, an unauthorized actor had
access to the PII months without the account being secured or the
breach being discovered, says the suit.
Headquartered in Raleigh, NC, Golden Corral Corporation is a
restaurant chain that operates approximately 400 buffet-style
restaurants in 43 states and Puerto Rico. The company also oversees
roughly 100 franchise locations. [BN]
The Plaintiff is reviewed by:
David M. Wilkerson, Esq.
THE VAN WINKLE LAW FIRM
1 N. Market Street
Asheville, NC 28801
Telephone: (828) 258-2991
Facsimile: (828) 257-2767
E-mail: dwilkerson@vwlawfirm.com
- and -
Daniel Srourian, Esq.
SROURIAN LAW FIRM, P.C.
3435 Wilshire Blvd., Suite 1710
Los Angeles, CA 90010
Telephone: (213) 474-3800
Facsimile: (213) 471-4160
E-mail: daniel@slfla.com
GOLDEN CORRAL: Morrow Sues Over Unsecured Private Information
-------------------------------------------------------------
Yasmeenah Morrow, on behalf of herself and all others similarly
situated, Plaintiff v. Golden Corral Corporation, Defendant, Case
No. 5:24-cv-00123-M (E.D.N.C., February 27, 2024) seeks to address
Defendant's inadequate safeguarding of Plaintiff's and Class
members' private information that it collected and maintained, and
for failing to provide adequate notice to Plaintiff and other Class
Members that their information had been stolen by criminals and
listed for sale on the dark web, asserting claims for negligence,
negligence per se, breach of implied contract, and unjust
enrichment.
The Plaintiff received a Notice of Data Breach from Defendant dated
February 16, 2024 informing her of the Data Breach. The Defendant's
Notice of Data Breach admits that Plaintiff's and Class members'
private information was accessed via an external system data breach
without authorization, exfiltrated by cybercriminals, and posted
for sale on the Internet, says the suit.
Headquartered in Raleigh, NC, Golden Corral Corporation is an
American restaurant chain which offers an all-you-can-eat buffet
and grill. It is a privately held company with locations in 43
U.S. states and Puerto Rico. [BN]
The Plaintiff is represented by:
Scott C. Harris, Esq.
MILBERG COLEMAN BRYSON PHILLIPS GROSSMAN, PLLC
900 W. Morgan St.
Raleigh, NC 27603
Telephone: (919) 600-5003
E-mail: sharris@milberg.com
- and -
Gary M. Klinger, Esq.
MILBERG COLEMAN BRYSON PHILLIPS GROSSMAN, PLLC
227 W. Monroe St., Ste. 2100
Chicago, IL 60606
Telephone: (866) 252-0878
E-mail: gklinger@milberg.com
- and -
Bryan L. Bleichner, Esq.
Philip J. Krzeski, Esq.
CHESTNUT CAMBRONNE PA
100 Washington Avenue South, Suite 1700
Minneapolis, MN 55401
Telephone: (612) 339-7300
Facsimile: (612) 336-2940
E-mail: bbliechner@chestnutcambronne.com
pkrzeski@chestnutcambronne.com
GREENIX HOLDINGS: Pizzillo Alleges Wage and Hour Violations
-----------------------------------------------------------
LEE PIZZILLO, an individual, on behalf of himself and all others
similarly situated, Plaintiff, v. GREENIX HOLDINGS, LLC, d/b/a
Greenix Pest Control, LLC, a Utah limited liability company,
Defendant, Case No. 2:24-cv-00153 (D. Utah, February 28, 2024)
seeks to remedy violations of the Fair Labor Standards Act and the
Ohio Minimum Fair Wage Standards Act.
From approximately October 2023 to January 23, 2024, the Plaintiff
was employed by Defendant as a technician in Ohio. Allegedly,
Plaintiff was subjected to Defendant's practices and policies of
not paying its hourly, non-exempt employees wages for all hours
worked, including overtime compensation at the rate of one and
one-half times their regular rate of pay for all the hours they
worked in excess of 40 each workweek.
Greenix Holdings, LLC. is a pest control company that employs pest
control technicians in approximately 18 different states across the
country, including Ohio. [BN]
The Plaintiff is represented by:
Randall L. Jeffs, Esq.
JEFFS & JEFFS, P.C.
90 North 100 East
P.O. Box 888
Provo, UT 84603
Telephone: (801) 373-8848
E-mail: rzjeffs@jeffslawoffice.com
- and -
Matthew S. Grimsley, Esq.
Anthony J. Lazzaro, 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
E-mail: matthew@lazzarolawfirm.com
anthony@lazzarolawfirm.com
JAJA RESTAURANT: Lewis and Pawlus Sue Over Illegal Tip Pooling
--------------------------------------------------------------
ALEXA LEWIS and HEATHER PAWLUS, Plaintiffs v. JAJA RESTAURANT aka
HB CLE 2407 LORAIN LLC and DAN WHALEN, Defendants, Case No.
1:24-cv-00371 (N.D. Ohio, February 28, 2024) is a class action
alleging that the Defendants violated Section 34a, Article II of
the Ohio Constitution, Ohio Revised Code Section 4111.14, and the
Fair Labor Standards Act.
Plaintiff Pawlus worked for Defendants as a server, and her rate of
pay was the Ohio tipped minimum wage rate. The Defendants only paid
Plaintiffs and similarly situated employees the tipped minimum
wage, instead of the full minimum wage. In addition, Defendants
required Plaintiffs and similarly situated employees to participate
in an illegal tip pool by taking more than 35% of their tips and
distributing the money to management and other employees who are
not legally allowed to participate in tip pools, says the suit.
Jaja is an Ohio limited liability company that owns and operates a
restaurant based in in Cuyahoga County, Ohio. [BN]
The Plaintiffs are represented by:
Stephan I. Voudris, Esq.
VOUDRIS LAW LLC
8401 Chagrin Road, Suite 8
Chagrin Falls, OH 44023
Telephone: (440) 543-0670
Facsimile: (440-543-0721
E-mail: svoudris@voudrislaw.com
csams@voudrislaw.com
JAVA MOMMA: Figueroa Seeks Damages for Breach of Caller ID Rules
----------------------------------------------------------------
KIMBERLY FIGUEROA, individually and on behalf of all others
similarly situated v. JAVA MOMMA, INC., Case No. CACE-24-002837
(Fla. Cir., 17th Judicial, Broward Cty., February 28, 2024) accuses
the Defendant of violating the Caller ID Rules of the Florida
Telephone Solicitation Act.
The Plaintiff, a Florida resident, owns a cell phone number that
has received telephonic sales calls from Defendant Java Momma. With
each text message advertisement, Defendant transmitted a telephone
number to the caller ID service of Plaintiff that was not capable
of receiving telephone calls, in violation of the Caller ID Rules
of the FTSA. The Plaintiff, on behalf of all others similarly
situated, seeks injunctive and declaratory relief, as well as
damages arising from the Defendant's illegal practice.
Headquartered in Danville, PA, Java Momma sells various goods to
customers 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
Telephone: (202) 709-5744
Facsimile: (866) 893-0416
E-mail: josh@sjlawcollective.com
shawn@sjlawcollective.com
JEFF RUBY: Faces Lamb Suit in Ohio Over Tip Retention Policy
------------------------------------------------------------
JOHNATHAN LAMB, on behalf of himself and all others similarly
situated, Plaintiff v. JEFF RUBY, JEFF RUBY CULINARY ENTERTAINMENT,
INC., THE PRECINCT, INC., CARLO & JOHNNY'S, LTD., JEFF RUBY
STEAKHOUSE, LLC, JEFF RUBY'S COLUMBUS, LLC, JEFF RUBY'S COLUMBUS
HOLDINGS, LLC, JEFF RUBY'S STEAKHOUSE LEXINGTON, LLC, JEFF RUBY'S
LOUISVILLE, LLC, and JEFF RUBY'S NASHVILLE, LLC, d/b/a JEFF RUBY
CULINARY ENTERTAINMENT, Defendants, Case No. 1:24-cv-00097-MRB
(S.D. Ohio, February 27, 2027) seeks to recover unpaid minimum and
overtime wages, unlawfully retained tips, liquidated damages,
restitution, attorneys' fees, costs, and all other damages
available under the Fair Labor Standards Act, the Kentucky Wages
and Hours Act, the Kentucky common law of unjust enrichment.
The Defendants employed Plaintiff Lamb as a server at their Jeff
Ruby's Steakhouse restaurant located in Lexington, KY from
approximately February 2019 through approximately March 2023.
Allegedly, Defendants violated the FLSA and KWHA because they
failed to satisfy the notice prerequisite for taking the tip credit
and required tip credit employees to share tip with back-of-house
employees who have no or only de minimis interaction with customers
while taking a tip credit, says the suit.
Jeff Ruby's Louisville, LLC owns and operates its steakhouse, Jeff
Ruby's Steakhouse - Louisville, located at 325 West Main Street,
Louisville, KY 40202. [BN]
The Plaintiff is represented by:
Robert E. DeRose, Esq.
BARKAN MEIZLISH DEROSE COX, LLP
4200 Regent Street, Suite 210
Columbus, OH 43219
Telephone: (614) 221-4221
E-mail: bderose@barkanmeizlish.com
- and -
David W. Garrison, Esq.
Joshua A. Frank, Esq.
Nicole A. Chanin, Esq.
BARRETT JOHNSTON MARTIN & GARRISON, PLLC
200 31st Avenue North
Nashville, TN 37203
Telephone: (615) 244-2202
E-mail: dgarrison@barrettjohnston.com
jfrank@barrettjohnston.com
nchanin@barrettjohnston.com
KENNAN & ASSOCIATES: Teague Sues Over Late Data Breach Notice
-------------------------------------------------------------
NATHAN TEAGUE, individually and on behalf of all others similarly
situated, Plaintiff v. KENNAN & ASSOCIATES, Defendant, Case No.
2:24-cv-01609 (C.D. Cal., February 27, 2024) arises from
Defendant's failure to implement adequate and reasonable
cyber-security procedures and protocols necessary to protect
individuals' personally identifiable information and/or protected
health information, which was accessed and exfiltrated by a threat
actor during a data breach of Defendant's network servers between
August 21, 2023 and August 27, 2023.
Despite the data breach occurring in August 2023, Keenan
inexcusably waited approximately five months, until on or about
January 26, 2024, to begin notifying impacted individuals of the
data breach. By failing to timely disclose the data breach, Keenan
prevented victims from taking meaningful and proactive mitigation
measures to protect themselves from harm, says the suit.
Plaintiff Teague asserts claims for negligence, negligence per se,
declaratory judgment, and for violations of the common law and
Section 5 of the Federal Trade Commission Act.
Headquartered in Torrance, CA, Kennan is an insurance brokerage
firm in the U.S. [BN]
The Plaintiff is represented by:
(Eddie) Jae K. Kim, Esq.
LYNCH CARPENTER, LLP
117 East Colorado Blvd., Suite 600
Pasadena, CA 91105
Telephone: (626) 550-1250
E-mail: ekim@lcllp.com
KIMBERLY-CLARK CORP: DePaul Sues Over Exposure to Toxic Chemicals
-----------------------------------------------------------------
BETHANY DePAUL, ARLENE QUARANTA, and MEREDITH QUARANTA,
individually and on behalf of all others similarly situated v.
KIMBERLY-CLARK CORPORATION, Case No. 3:24-cv-00271-KAD (D. Conn.,
February 28, 2024) accuses the Defendant of intentional, reckless,
and/or negligent acts concerning its use of per- and
polyfluoroalkyl substances and their constituents which have led to
the contamination of real property and drinking water supplies
owned and used by Plaintiffs.
The Plaintiffs reside in New Milford, Connecticut where Defendant
operates a facility. Defendant allegedly improperly used, stored,
emitted, discharged, disposed of, and/or distributed PFAS chemicals
in and around New Milford Connecticut. Such chemicals are known to
be dangerous to human health and the environment. The Defendant's
conduct has exposed Plaintiffs and Class members to PFAS chemicals
through the ingestion of PFAS-contaminated water. The PFAS exposure
has put Plaintiffs and class members at an increased risk of
developing cancers and other diseases, says the suit.
Kimberly-Clark is an American multinational corporation that
manufacturers a wide range of personal care products. Its principal
place of business is located at 351 Phelps Dr, Irving, TX
75038-6507. [BN]
The Plaintiffs are represented by:
Ian W. Sloss, Esq.
Johnathan Seredynski, Esq.
Krystyna Gancoss, Esq.
Kate Sayed, Esq.
SILVER GOLUB & TEITELL LLP
One Landmark Square, Floor 15
Stamford, CT 06901
Telephone: (203) 325-4491
E-mail: isloss@sgtlaw.com
jsered@sgtlaw.com
kgancoss@sgtlaw.com
ksayed@sgtlaw.com
KNIGHT TRANSPORTATION: Lira and Lofton Dismissed as Class Reps
--------------------------------------------------------------
Judge John J. Tuchi of the U.S. District Court for the District of
Arizona terminates Robert Lira and Matthew Lofton as representative
plaintiffs in the lawsuit styled Patrick LaCross, et al.,
Plaintiffs v. Knight Transportation Incorporated, et al.,
Defendants, Case No. 2:15-cv-00990-JJT (D. Ariz.).
At issue is Plaintiffs and Class Representatives Robert Lira and
Matthew Lofton's Notice of Election of Counsel and Related
Matters.
As the Court stated in its prior Order, Marlin & Saltzman, LLP, is
class counsel in this matter. Upon the election of Plaintiffs Lira
and Lofton to be represented by non-class counsel, Blackstone Law,
APC, the Court will terminate Lira and Lofton as class
representatives in this matter.
As such, Judge Tuchi opines, the non-representative Plaintiffs,
whether represented by non-class counsel Blackstone Law or any
other counsel, may not file their own motion to amend the complaint
or for summary judgment in this matter, as Blackstone Law
improperly states it intends to do in its Notice. Only the
remaining class representative, Patrick LaCross, represented by
class counsel Marlin & Saltzman, LLP, may file those motions on
behalf of the class of Plaintiffs in this matter.
As for Blackstone Law's apparent concern that Marlin & Saltzman
will not comply with the Arizona Rules of Professional Conduct in
transferring the files related to the non-representative Plaintiffs
Blackstone Law states it represents—Lira, Lofton, Patino Garcia,
Carter, and Rosete—nothing in the Court's Order was intended to
authorize such non-compliance.
The Court stated that Marlin & Saltzman will transfer the case
files only pertaining to the Plaintiffs Blackstone Law will
represent to indicate that, for example, files pertaining to the
depositions of the Plaintiffs Blackstone Law does not represent
need to be transferred to Blackstone Law.
Finally, the Court set the date of transfer of the files to
Blackstone Law independent of the deadline for filing a motion for
summary judgment, because, as stated supra, Blackstone Law as
non-class counsel may not file a motion for summary judgment on
behalf of non-representative (or representative) Plaintiffs.
Therefore, the Court directs the Clerk of Court to terminate Robert
Lira and Matthew Lofton as representative Plaintiffs, and to
terminate counsel Karen I. Gold as counsel for the remaining
representative Plaintiff, Patrick LaCross, in this class action.
The Court denies the request to amend the complaint filed by
non-representative Plaintiffs Lira, Lofton, Patino Garcia, Carter,
and Rosete and denies the other relief requested in these
Plaintiffs' Notice.
A full-text copy of the Court's Order dated Feb. 12, 2024, is
available at https://tinyurl.com/4rxy4erf from PacerMonitor.com.
LA GLADYS: Fernandez Seeks Unpaid Minimum and Overtime Wages
------------------------------------------------------------
JAIR FERNANDEZ v. LA GLADYS RESTAURANT INC., JUAN ANTONIO AGUILAR,
GLADYS BARSOLAS individually, Case No. 1:24-cv-01524 (S.D.N.Y.,
February 28, 2024) is a class action alleging the Defendants of
violating the Fair Labor Standards Act and the New York Labor Law.
The Plaintiff, on behalf of himself and other similarly situated
employees of Defendants, alleges that Defendant failed to pay him
the required minimum rate of $15.00 per hour under New York laws.
Furthermore, Plaintiff did not receive overtime pay for all hours
worked in excess of 40 hours per work week from August 12, 2023
until December 30, 2023. The Defendants also failed to provide
written notice of wage rates and did not maintain accurate record
keeping. Defendants' practices are in violation of the FLSA, NYLL,
and the Wage Theft Protection Act, says the Plaintiff.
La Gladys Restaurant Inc. is engaged in the food service industry,
with its places of business located at 360 Mamaroneck Ave
Mamaroneck, NY 10543, 453 Ellendale Ave Port Chester, NY 10573, 57
Croton Ave, Ossining, NY 10562 and 900 Main St, Peekskill, NY
10566. [BN]
The Plaintiff is represented by:
Lina Stillman, Esq.
STILLMAN LEGAL, P.C.
42 Broadway, 12th Floor
New York, NY 10004
Telephone: (212) 203-2417
Website: www.StillmanLegalPC.com
LAUNCH TECH: Fails to Provide COBRA Notice, Inga Says
-----------------------------------------------------
CARLOS R. INGA, on behalf of himself and all others similarly
situated, Plaintiff v. LAUNCH TECH USA, INC., Defendant, Case No.
5:24-cv-00441 (C.D. Cal., February 27, 2024) alleges that the
Defendant violated the Employee Retirement Income Security Act of
1974, Consolidated Omnibus Budget Reconciliation Act, by failing to
timely provide his and similarly situated persons with a COBRA
notice.
The Plaintiff was employed by Defendant as a shipping and receiving
coordinator from October 17, 2021 until September 5, 2023. During
the course of his employment, Plaintiff received employer-sponsored
health insurance benefits through Anthem Blue Cross and Blue
Shield. In the five months since his separation of employment,
Plaintiff has never been provided a COBRA notice. Moreover, the he
was never provided information explaining how to enroll in COBRA,
despite the expiration of his employer-sponsored health insurance
coverage, says the suit.
Based in Ontario, CA, Launch Tech USA, Inc. is a supplier of
automotive diagnostic tools and solutions. [BN]
The Plaintiff is represented by:
Eric Lechtzin, Esq.
EDELSON LECHTZIN LLP
411 S. State Street, Suite N-300
Newtown, PA 18940
Telephone: (215) 867-2399
Facsimile: (267) 685-0676
E-mail: elechtzin@edelson-law.com
LEARFIELD COMMUNICATIONS: Peterson Appeals Privacy Suit Dismissal
-----------------------------------------------------------------
TIM PETERSON is taking an appeal from a court order dismissing his
lawsuit entitled Tim Peterson, individually and on behalf of all
others similarly situated, Plaintiff, v. Learfield Communications,
LLC, et al., Defendants, Case No. 8:23-cv-00146-BCB, in the U.S.
District Court for the District of Nebraska.
The Plaintiff brings this class action complaint against the
Defendants by failing to disclose on its website that subscribers'
personal identifying information (PII) would be captured by the
Facebook Pixel utilized by the Defendants and then transferred to
Facebook in violation of the Video Privacy Protection Act (VPPA).
On Aug. 14, 2023, the Defendants filed a motion to dismiss for
failure to state a claim, which the Court granted through an Order
entered by Judge Brian C. Buescher.
The appellate case is captioned Tim Peterson v. Learfield
Communications, LLC, et al., Case No. 23-3773, in the United States
Court of Appeals for the Eighth Circuit, filed on December 29,
2023.
The briefing schedule in the Appellate Case states that:
-- Appendix was due on February 7, 2024;
-- Appellant Tim Peterson's Brief was due on February 7, 2024;
and
-- Appellee brief is due 30 days from the date the court issues
the Notice of Docket Activity filing the brief of Appellant. [BN]
Plaintiff-Appellant TIM PETERSON, on behalf of himself and all
others similarly situated, is represented by:
Pamela A. Car, Esq.
CAR & REINBRECHT
Suite 1135
2120 S. 72nd Street
Omaha, NE 68124
Telephone: (402) 391-8484
- and -
Gary S. Ishimoto, Esq.
Courtney Maccarone, Esq.
Mark Reich, Esq.
LEVI & KORSINSKY
17th Floor
33 White Hall Street
New York, NY 10004
Telephone: (212) 363-7500
- and -
William L. Reinbrecht, Esq.
LAW OFFICE OF WILLIAM L. REINBRECHT
Suite 1125
2120 S. 72nd Street
Omaha, NE 68124
Telephone: (402) 391-8484
Defendants-Appellees LEARFIELD COMMUNICATIONS, LLC, et al. are
represented by:
Bonnie L. DelGobbo, Esq.
BAKER & HOSTETLER
Suite 4500
One N. Wacker Drive
Chicago, IL 60606
- and -
Jarrod Reece, Esq.
LIKES & MEYERSON
Suite 100
444 Regency Parkway Drive
Omaha, NE 68114
Telephone: (402) 506-4604
LEPRINO FOODS: $3.5MM Settlement in Vasquez Suit Has Prelim. Nod
----------------------------------------------------------------
Magistrate Judge Barbara A. McAuliffe of the U.S. District Court
for the Eastern District of California grants preliminary approval
to the parties' class action settlement in the lawsuit titled
ISAIAS VASQUEZ and LINDA HEFKE, on behalf of all other similarly
situated individuals, Plaintiffs v. LEPRINO FOODS COMPANY, a
Colorado Corporation; LEPRINO FOODS DAIRY PRODUCTS COMPANY, a
Colorado Corporation; and DOES 1-50, inclusive, Defendants, Case
No. 1:17-cv-00796-JLT-BAM (E.D. Cal.).
Presently pending before the Court is the Plaintiffs' unopposed
motion for certification of a settlement class under Federal Rule
of Civil Procedure 23 and preliminary approval of the parties'
class action settlement. Leprino has agreed to pay a total maximum
settlement fund of $3,500,000 to settle long-standing cases against
it.
Plaintiffs Isaias Vazquez, Linda Hefke, Jerrod Finder, Jonathan
Talavera, John Perez, Andrew Howell, and Fred Walter, on behalf of
themselves and others similarly situated filed the motion on Oct.
16, 2023. Defendants Leprino Foods Company and Leprino Foods Dairy
Products Company (collectively "Defendants" or "Leprino,") filed a
statement of non-opposition to the motion on Dec. 4, 2023.
The motion was referred to Judge McAuliffe following consent by the
parties for the motion to be heard and decided by the assigned
Magistrate Judge. A hearing on the motion was held via Zoom video
conference on Jan. 22, 2024, before Judge McAuliffe. Counsel Kitty
Kit Szeto appeared via Zoom on behalf of the Plaintiffs. Counsel
Lisa Pooley appeared via Zoom on behalf of the Defendants.
At the hearing, the Court requested supplemental briefing on
several issues: (1) the requested enhancement payment to Donald
Null, (2) appointment of class counsel, (3) a lodestar related to
requested attorneys' fees; and (4) documentation of costs. The
Plaintiffs filed supplemental briefing on Feb. 4, 2024.
For reasons set forth in this Order, the Court grants the motion
for preliminary settlement approval; certifies the proposed
Settlement Class; appoints the Plaintiffs as Class Representatives;
appoints the Parris Law Firm and The Downey Law Firm, LLC, as Class
Counsel; and orders dissemination of notice to the Class pursuant
to the proposed notice plan.
Beginning in 2013 and until 2020, the Plaintiffs filed a series of
proposed class actions against Leprino challenging various of
Leprino's employment policies and practices. After years of
litigation, the Plaintiffs now seek preliminary approval of the
following cases pending in this Court: (1) Finder v. Leprino Foods
Company, et al., Case No. 1:13-cv-02059-JLT-BAM; (2) Talavera v.
Leprino Foods Company, et al., Case No. 1:15-cv-00105-JLT-BAM; (3)
Vasquez, et al. v. Leprino Foods Company, et al., Case No.
1:17-cv-00796-JLT-BAM; (4) Perez v. Leprino Foods Company, et al.,
Case No. 1:17-cv-00686-JLT-BAM; (5) Howell v. Leprino Foods
Company, et al., Case No. 1:18-cv-01404-JLT-BAM; and (6) Walter v.
Leprino Foods Company, et al., Case No. 2:20-cv-00700-JLT-BAM
(collectively "Leprino Cases").
The Leprino Cases challenge certain wage and hour policies and
practices, which allegedly resulted in denial of full compensation
for employees, at some or all of Leprino's three processing
facilities in California: Lemoore West, Lemoore East, and Tracy.
All of the Leprino Cases were ultimately related to one another
under this Court's Local Rule 123.
Following a long and convoluted procedural history, the Plaintiffs
in the Leprino Cases and Leprino reached a settlement. On Oct. 16,
2023, ten years after filing the first of the Leprino Cases, the
Plaintiffs filed this Motion for Preliminary Approval of Class
Action Settlement to settle all of the Leprino Cases. Soon
thereafter, the Leprino Cases were consolidated on Dec. 7, 2023,
for purposes of preliminary and final approval of the settlement.
On March 14, 2023, the Vasquez case proceeded to a jury trial. At
issue was whether Leprino had a facility-wide policy at its Lemoore
West facility between May 8, 2013, and March 31, 2020, that
required class members to be on-call during their meal and rest
breaks. On April 6, 2023, the jury rendered a verdict for Leprino,
finding that Leprino did not have a facility-wide policy at its
Lemoore West facility and that the class was not required to be
on-call during rest breaks or during meal breaks. The Plaintiffs
appealed the verdict on May 5, 2023, and Leprino filed a
conditional cross-appeal in the event the Ninth Circuit did not
affirm the verdict.
During the pendency of the Vasquez appeal, the parties participated
in two (2) full-day, in-person mediation sessions with Ninth
Circuit Mediator, Kyungah Kay Suk, on July 31, 2023, and Sept. 18,
2023. The parties had attempted previously to mediate the Vasquez
case unsuccessfully on Jan. 31, 2020, with a private mediator.
After ten years of hard-fought litigation, the parties finally
agreed to settle all of the Leprino Cases according to the terms of
the fully executed Settlement Agreement.
The Plaintiffs seek to certify the following Class, which Leprino
does not oppose or contest for settlement purposes only: "All
individuals who currently or formerly worked at Leprino's Lemoore
West, Lemoore East, or Tracy facilities in the State of California
as hourly, non-exempt employees at any time between November 15,
2009 and July 31, 2023" ("Settlement Class"). Subsets of this class
had been certified previously in the Vasquez, Perez, Howell, and
Walter matters.
Leprino has agreed to pay a total maximum settlement fund of
$3,500,000 ("Maximum Settlement Amount") to settle these
long-standing cases against it.
A Net Settlement Amount of approximately $1,219,624.06 prior to
deducting payroll taxes, will be automatically paid out to
Settlement Class Members without the need to submit a claim form.
The entire Net Settlement Amount will be distributed to the
Participating Class Members. A Participating Class member is any
Class Member, who does not submit a timely and valid request for
exclusion.
Following Final Approval and dismissal of the Leprino Cases, the
Defendants agree to waive their Bill of Costs totaling $65,297.26
awarded in Vasquez, et al. v. Leprino Foods Company, et al., Case
No. 1:17-cv-00796-JLT-BAM, filed on April 21, 2023.
The Court preliminarily concludes that the proposed settlement, on
the current record, is fair, reasonable, and adequate within the
meaning of Rule 23(e)(2) of the Federal Rules of Civil Procedure.
Accordingly, the motion for preliminary approval of the proposed
settlement, as supplemented with declarations, is granted.
A hearing on the Final Approval of the settlement ("Final Approval
Hearing") will be held before the Honorable Barbara A. McAuliffe on
June 14, 2024, at 9:00 a.m.
The following persons are conditionally certified as Class Members
solely for the purpose of entering a settlement in this matter:
All individuals who currently or formerly worked at
Leprino's Lemoore West, Lemoore East, or Tracy facilities in
the State of California as hourly, non-exempt employees at
any time between November 15, 2009 and July 31, 2023
("Settlement Class").
The Court finds that, for settlement purposes only, the Settlement
Class meets the requirements for certification under Rule 23.
The Court preliminarily finds that the Settlement, which provides
for a Maximum Settlement Amount of $3,500,000 for approximately
3,300 Class Members, appears to be within the range of
reasonableness of a settlement that could ultimately be given final
approval by the Court. The Maximum Settlement Amount includes all
attorneys' fees, litigation costs, Settlement Administration Costs,
and the Plaintiffs' Enhancement Payments.
The Court preliminarily approves Class Counsel's request for
attorneys' fees in the amount of $1,400,000 and costs in the amount
of $800,000 to be paid out of the Maximum Settlement Amount. The
Court preliminarily approves the Plaintiffs' Enhancement Payment in
the total amount of $45,000 to be paid out of the Maximum
Settlement Amount.
Phoenix Class Action Administration Solutions is appointed to act
as the Administrator, pursuant to the terms set forth in the
Settlement Agreement.
Plaintiffs Isaias Vazquez, Linda Hefke, Jerrod Finder, Jonathan
Talavera, John Perez, Andrew Howell, and Fred Walter are appointed
the Class Representatives and the representatives of the Settlement
Class for settlement purposes only.
The Plaintiffs' Counsel, the Parris Law Firm and The Downey Law
Firm, LLC, are appointed Class Counsel; Class Counsel are
authorized to act on behalf of the Class Representatives and the
Settlement Class.
The settlement of the Plaintiffs' California Labor Code Private
Attorney General Act ("PAGA") claim is fair and reasonable, and the
Court preliminarily approves the Settlement and release of that
claim, as well as the PAGA Allocation in the amount of $10,000,
which included payment to the LWDA and to the PAGA Members.
The Court approves, as to form and content, the Notice of
Settlement attached as Exhibit "8" ("Notice") to the Supplemental
Declaration of Kitty Szeto, except that the Final Fairness hearing
is set for June 14, 2024, at 9:00 and that the revised notice
erroneously lists Plaintiff Walter as "Walters" in multiple spots.
The rights of any potential objectors to the proposed Settlement
are adequately protected in that they may exclude themselves from
the Settlement and proceed with any alleged claims they may have
against Leprino, or they may object to the Settlement and appear
before this Court. However, to do so, they must follow the
procedures outlined in the Settlement Agreement which are set out
in the Notice.
The Court finds that the mailing of the Notice substantially in the
manner and form as set forth in the Settlement Agreement and this
Order meets the requirements of Federal Rules of Civil Procedure,
Rule 23 and due process, and is the best notice practicable under
the circumstances, and will constitute due and sufficient notice to
all persons entitled thereto.
The Court finds that the notice of settlement that Class Counsel
provided to the LWDA satisfies the notice requirements of the
California Private Attorneys General Act.
A full-text copy of the Court's Order dated Feb. 12, 2024, is
available at https://tinyurl.com/4bk6w6y5 from PacerMonitor.com.
MEDICAL MANAGEMENT: Fails to Prevent Data Breach, Baehr Alleges
---------------------------------------------------------------
DAVID BAEHR; and MARILYN ZAJACKA, individually and on behalf of all
others similarly situated, Plaintiffs v. MEDICAL MANAGEMENT
RESOURCE GROUP, LLC d/b/a American Vision Partners, Defendant, Case
No. 2:24-cv-00404-JZB (D. Ariz., Feb. 27, 2024) alleges violation
of the Health Insurance Portability and Accountability Act of
1996.
According to the complaint, on February 6, 2023, the Defendant, an
Arizona-based ophthalmologist practices management company
partnering with practices across five states disclosed that it was
the subject of a massive data breach whereby hackers gained
unauthorized access to its networks in Fall 2023 (the "Data
Breach"). During the Data Breach, hackers accessed, copied, and
exfiltrated highly sensitive information stored on American
Vision's servers, including names, contact information, dates of
birth, certain medical information.
As a result of the Defendant's failure to protect the sensitive
information it was entrusted to safeguard, the Plaintiffs and Class
members did not receive the benefit of their bargain with
Defendants and now face a significant risk of medical-related theft
and fraud, financial fraud, and other identity-related fraud now
and into the indefinite future, says the suit.
MEDICAL MANAGEMENT RESOURCES, INC. (MMRI), doing business as
Medical Management Resources of TeamHealth, operates as a revenue
management company. The Company offers reporting and tracking
applications, risk assessments, payroll Processing, and tax
planning services. Medical Management Resources of TeamHealth
serves clients in the United States. [BN]
The Plaintiff is represented by:
Elaine A. Ryan, Esq.
AUER RYAN, P.C.
20987 N. John Wayne Parkway, #B104-374
Maricopa, AZ 85139
Telephone: (520) 7005-7332
Email: eryan@auer-ryan.com
- and –
Norman E. Siegel, Esq.
J. Austin Moore, Esq.
Stefon J. David, Esq.
STUEVE SIEGEL HANSON LLP
460 Nichols Road, Suite 200
Kansas City, MO 64112
Telephone: (816) 714-7100
Email: siegel@stuevesiegel.com
moore@stuevesiegel.com
david@stuevesiegel.com
MEDICAL MANAGEMENT: Israel Sues Over Breach of Private Information
------------------------------------------------------------------
Lynda Israel, individually, and on behalf of all others similarly
situated, Plaintiff v. Medical Management Resource Group, L.L.C.
d/b/a American Vision Partners, Defendant, Case No.
2:24-cv-00405-CDB (D. Ariz., February 27, 2024) arises from Medical
Management Resource Group's failure to implement reasonable
security protections to safeguard its information systems and
databases.
On November 13, 2023, MMRG experienced a data breach incident in
which unauthorized cybercriminals accessed its information systems
and databases and stole private information belonging to Plaintiff
and Class members. MMRG discovered this unauthorized access on
November 14, 2023. On February 6, 2024, MMRG sent a notice to all
individuals whose information was accessed in the data breach, the
suit contends.
MMRG provides administrative services to 120 ophthalmology
practices located throughout Arizona, Nevada, New Mexico, and
Texas. [BN]
The Plaintiff is represented by:
Cristina Perez Hesano, Esq.
PEREZ LAW GROUP, PLLC
7508 N. 59th Avenue
Glendale, AZ 85301
Telephone: (602) 730-7100
Facsimile: (623) 235-6173
E-mail: cperez@perezlawgroup.com
- and -
Daniel O. Herrera, Esq.
Nickolas J. Hagman, Esq.
CAFFERTY CLOBES MERIWETHER & SPRENGEL LLP
135 S. LaSalle, Suite 3210
Chicago, IL 60603
Telephone: (312) 782-4880
Facsimile: (312) 782-4485
E-mail: dherrera@caffertyclobes.com
nhagman@caffertyclobes.com
MINDLANCE INC: Sheppard Sues Over Unpaid Work Time
--------------------------------------------------
CYNTHIA SHEPPARD, individually, and on behalf of others similarly
situated, Plaintiff v. MINDLANCE, INC., a New Jersey Corporation,
Defendant, Case No. 2:24-cv-01172 (D.N.J., February 28, 2024)
arises from Defendant's willful violations of the Fair Labor
Standards Act and the South Carolina Payment of Wages Act.
The Plaintiff held the position of remote IT Support Technicians
from approximately December 2022 to December 2023. She was required
to routinely work a full-time schedule, plus overtime, however,
Defendant does not compensate her for all work performed. In
addition, Defendants maintains a common plan and policy pursuant to
which they fail to pay their IT Support Technicians for no less
than 22 minutes per day of work performed during pre-shift time and
during their lunch periods, says the Plaintiff.
Midlance, Inc. is a staffing firm that provides contingent staffing
and a wide-ranging portfolio of comprehensive workforce solutions
that include digital transformation services. [BN]
The Plaintiff is represented by:
Nicholas Conlon, Esq.
BROWN, LLC
111 Town Square Place #400
Jersey City, NJ 07310
Telephone: (201) 630-0000
E-mail: nicholasconlon@jtblawgroup.com
- and -
Charles R. Ash, IV, Esq.
ASH LAW, PLLC
402 W. Liberty St.
Ann Arbor, MI 48103-4388
Telephone: (734) 234-5583
E-mail: cash@nationalwagelaw.com
- and -
Oscar Rodriguez, Esq.
HOOPER HATHAWAY, P.C.
126 S. Main St
Ann Arbor, MI 48104-1903
Telephone: (734) 662-4426
E-mail: orod@hooperhathaway.com
MULTI-FINELINE ELECTRONIX: Biondi Sues Over Private Data Breach
---------------------------------------------------------------
JOSEPH BIONDI, on behalf of himself individually and on behalf of
all others similarly situated, Plaintiff v. MULTI-FINELINE
ELECTRONIX, INC., Defendant, Case No. 8:24-cv-00400 (C.D. Cal.,
February 27, 2024) seeks to address Defendant's inadequate
safeguarding of Plaintiff's and Class member's private information
that it collected and maintained, and for failing to provide timely
and adequate notice to Plaintiff and other Class members that their
information had been subject to the unauthorized access by an
unknown third party and precisely what specific type of information
was accessed.
At the time of the data breach -- approximately December 1, 2022
through January 2, 2023 -- Defendant retained Plaintiff's private
information in its system. Plaintiff Biondi received the notice
letter, by email, directly from Defendant, dated February 8, 2024.
According to the notice letter, Plaintiff's private information was
improperly accessed and obtained by unauthorized third parties.
However, omitted from the notice letter were the details of the
root cause of the data breach, the vulnerabilities exploited, and
the remedial measures undertaken to ensure such a breach does not
occur again.
The Plaintiff asserts claims for negligence, unjust enrichment, and
for violations of Section 5 of the Federal Trade Commission Act.
Headquartered in Irvine, CA, Multi-Fineline Electronix, Inc. is a
flexible printed circuit manufacturer, assembler and supplier.
[BN]
The Plaintiff is represented by:
John J. Nelson, Esq.
MILBERG COLEMAN BRYSON PHILLIPS GROSSMAN, PLLC
280 S. Beverly Drive
Beverly Hills, CA 90212
Telephone: (858) 209-6941
E-mail: jnelson@milberg.com
NEXTDOOR HOLDINGS: Adamo Sues Over Drop in Share Price
------------------------------------------------------
FRANKIE J. ADAMO, individually and on behalf of all others
similarly situated, Plaintiff v. NEXTDOOR HOLDINGS, INC.; SARAH J.
FRIAR; MICHAEL DOYLE; VINOD KHOSLA; SAMIR KAUL; PETER BUCKLAND;
KHOSLA VENTURES LLC; and KHOSLA VENTURES SPAC SPONSOR II LLC,
Defendants, Case No. 4:24-cv-01213-KAW (N.D. Cal., Feb. 28, 2024)
is a securities fraud class action on behalf of all purchasers of
the publicly traded Class A common stock of Nextdoor between July
6, 2021 and November 8, 2022, inclusive (the "Class Period"), the
Plaintiff seeking to pursue remedies against the Company under the
Securities Exchange Act of 1934 ("1934 Act").
The Plaintiff alleges in the complaint that the press release, and
reports with the Securities and Exchange Commission by the
Defendants were materially false and misleading when made because
they failed to disclose the adverse facts pertaining to Nextdoor
and Nextdoor Private's business, operations, and financial
condition, which were known to the Defendants or recklessly
disregarded by them.
Nextdoor Class A common stock fell nearly 90 percent from the
$18.59 per share price high, causing the Plaintiff and the Class to
suffer millions of dollars in losses and economic damages under the
federal securities laws, the suit says.
NEXTDOOR HOLDINGS, INC. operates as a holding company. The Company,
through its subsidiaries, provides hyperlocal social networking
services for neighborhoods. [BN]
The Plaintiff is represented by:
Shawn A. Williams, Esq.
ROBBINS GELLER RUDMAN
& DOWD LLP
Post Montgomery Center
One Montgomery Street, Suite 1800
San Francisco, CA 94104
Telephone: (415) 288-4545
Facsimile: (415) 288-4534
Email: shawnw@rgrdlaw.com
– and –
Brian E. Cochran, Esq.
Francisco J. Mejia, Esq.
ROBBINS GELLER RUDMAN
& DOWD LLP
655 West Broadway, Suite 1900
San Diego, CA 92101-8498
Telephone: (619) 231-1058
Facsimile: (619) 231-7423
Email: bcochran@rgrdlaw.com
fmejia@rgrdlaw.com
OPENAI LP: Faces Class Action Suit Over Data Misuse Practices
-------------------------------------------------------------
A.S., individually and on behalf of all others similarly situated,
Plaintiff v. OPENAI LP, OPENAI INCORPORATED, OPENAI GP, LLC, OPENAI
STARTUP FUNDI, LP, OPENAI STARTUP FUND GP I, LLC, OPENAI STARTUP
FUND MANAGEMENT LLC, MICROSOFT CORPORATION and DOES 1 through 20,
inclusive, Defendants, Case No. 3:24-cv-01190 (N.D. Cal., February
27, 2024) arises from Defendants' unlawful and harmful conduct in
developing, marketing, and operating their AI products, including
ChatGPT-3.5, ChatGPT-4.0, Dall-E, and Vall-E.
The Plaintiff asserts claims for negligence, invasion of privacy,
intrusion upon seclusion, larceny/receipt of stolen property,
conversion, unjust enrichment, and for violations of the Electronic
Communications Privacy Act, the Computer Fraud and Abuse Act,
California Invasion of Privacy Act, and the California Unfair
Competition Law in connection with the Defendants' data misuse
practices that contradict the principles of transparency,
accountability, and respect for consumer privacy rights.
Allegedly, the Defendants' AI products used stolen private
information, including personally identifiable information, from
hundreds of millions of internet users, including children of all
ages, without their informed consent or knowledge. In addition,
Defendants failed to provide accurate and comprehensive
notifications to consumers about the scale of their data sharing
practices, says the suit.
Headquartered in San Francisco, CA and founded in 2015, OpenAI is
an AI research laboratory consisting of the non-profit OpenAI
Incorporated and its for-profit subsidiary corporation OpenAI
Limited Partnership. [BN]
The Plaintiff is represented by:
Kevin F. Ruf, Esq.
GLANCY PRONGAY & MURRAY LLP
1925 Century Park East, Suite 2100
Los Angeles, CA 90067
Telephone: (310) 201-9150
Facsimile: (310) 201-9160
E-mail: info@glancylaw.com
- and -
Brian P. Murray, Esq.
GLANCY PRONGAY & MURRAY LLP
230 Park Avenue, Suite 358
New York, NY 10169
Telephone: (212) 682-5340
Facsimile: (212) 884-0988
E-mail: bmurray@glancylaw.com
- and -
Paul C. Whalen, Esq.
LAW OFFICE OF PAUL C. WHALEN
768 Plandome Road
Manhasset, NY 11030
Telephone: (516) 426-6870
E-mail: pcwhalen@gmail.com
PERRIGO COMPANY: Continues to Defend Phenylephrine Class Suit
-------------------------------------------------------------
Perrigo Company PLC disclosed in its Form 10-K Report for the
fiscal period ending December 31, 2024 filed with the Securities
and Exchange Commission on February 27, 2024, that the Company
continues to defend itself from the Phenylephrine marketing and
sales practices multidistrict class suit in the U.S.
In September 2023, the FDA’s Advisory Committee on
Nonprescription Drugs issued an advisory opinion calling into
question the efficacy of orally administered phenylephrine (PE)
containing products as a nasal decongestant. While the FDA itself
has thus far taken no action in response to the Advisory Committee
opinion, several putative class action lawsuits have been filed
asserting various economic injury claims to consumers.
On December 6, 2023, a number of the pending PE actions filed in
various federal courts were consolidated into a multi-district
litigation ("MDL") (In re: Oral Phenylephrine Marketing and Sales
Practices Litigation, MDL No. 3089), pending before the U.S.
District Court for the Eastern District of New York.
A smaller group of putative class action lawsuits alleging various
PE products also were mislabeled as "Maximum Strength" were
excluded from the consolidation, and are currently pending in the
Northern District of Illinois.
Several individual arbitrations have also been threatened or filed
with the American Arbitration Association with similar efficacy
allegations.
At this time, the MDL proceedings are in the early stages.
Currently, it is not possible to assess reliably the outcome of
these cases or any potential future financial impact on the
Company.
Certain of the Company's customers have made requests regarding
indemnity from the Company for a portion of their defense costs and
potential liability.
Perrigo Company PLC is a provider of over-the-counter health and
wellness solutions. It is headquartered in Ireland and markets
around the world.
PERRIGO COMPANY: Continues to Defend Roofers' Pension Class Suit
----------------------------------------------------------------
Perrigo Company PLC disclosed in its Form 10-K Report for the
fiscal period ending December 31, 2024 filed with the Securities
and Exchange Commission on February 27, 2024, that the Company
continues to defend itself from the Roofers' Pension Fund class
suit in the U.S. District Court for the District of New Jersey.
Beginning in May 2016, purported class action complaints were filed
against the Company and our former CEO, Joseph Papa, in the U.S.
District Court for the District of New Jersey (Roofers' Pension
Fund v. Papa, et al.) purporting to represent a class of
shareholders for the period from April 21, 2015 through May 11,
2016, inclusive.
The original complaint alleged violations of federal securities
laws in connection with the actions taken by us and the former
executive to defend against the unsolicited takeover bid by Mylan
in the period from April 21, 2015 through November 13, 2015.
The plaintiff also alleged that the defendants provided inadequate
disclosure concerning alleged business developments during the
alleged class period including integration problems related to the
Omega acquisition.
The operative complaint is the first amended complaint filed on
June 21, 2017, and named as defendants us and 11 current or former
directors and officers of Perrigo (Mses. Judy Brown, Laurie Brlas,
Jacqualyn Fouse, Ellen Hoffing, and Messrs. Joe Papa, Marc Coucke,
Gary Cohen, Michael Jandernoa, Gerald Kunkle, Herman Morris, and
Donal O010000000’Connor).
The amended complaint alleges violations of federal securities laws
arising out of the actions taken by us and the former directors and
executives to defend against the unsolicited takeover bid by Mylan
in the period from April 21, 2015 through November 13, 2015 and the
allegedly inadequate disclosure throughout the entire class period
related to the business developments during that longer period
(April 2015 to May 2017) including purported integration problems
related to the Omega acquisition, alleges incorrect reporting of
organic growth at the Company and at Omega, alleges price fixing
activities with respect to six generic prescription
pharmaceuticals, and alleges improper accounting for the Tysabri
royalty stream.
During 2017, the defendants filed motions to dismiss, which the
plaintiffs opposed.
On July 27, 2018, the court issued an opinion and order granting
the defendants' motions to dismiss in part and denying the motions
to dismiss in part.
The court dismissed without prejudice defendants Laurie Brlas,
Jacqualyn Fouse, Ellen Hoffing, Gary Cohen, Michael Jandernoa,
Gerald Kunkle, Herman Morris, Donal O'Connor, and Marc Coucke.
The court also dismissed without prejudice claims arising from the
Tysabri accounting issue described above and claims alleging
incorrect disclosure of organic growth described above.
The defendants who were not dismissed are the Company, Joe Papa,
and Judy Brown.
The claims (described above) that were not dismissed relate to the
integration issue regarding the Omega acquisition, the defense
against the Mylan tender offer, and the alleged price fixing
activities with respect to six generic prescription
pharmaceuticals.
The defendants who remain in the case (us, Mr. Papa, and Ms. Brown)
have filed answers denying liability.
On November 14, 2019, the court granted the lead plaintiffs’
motion and certified three classes for the case: (i) all those who
purchased shares between April 21, 2015 through May 2, 2017
inclusive on a U.S. exchange and were damaged thereby; (ii) all
those who purchased shares between April 21, 2015 through May 2,
2017 inclusive on the Tel Aviv exchange and were damaged thereby;
and (iii) all those who owned shares as of November 12, 2015 and
held such stock through at least 8:00 a.m. on November 13, 2015
(whether or not a person tendered shares in response to the Mylan
tender offer) (the "tender offer class").
Plaintiffs' counsels have sent notices to the alleged classes.
The parties took discovery from 2018 through 2020. After discovery
ended, defendants filed motions for summary judgement and to
exclude plaintiffs' experts, which were fully briefed.
The case was then re-assigned to a new federal judge, who heard
oral argument on the motions in April 2022.
In July 2023 the court reassigned the case to another federal
judge.
On August 17, 2023, the court granted summary judgment to Ms. Brown
on all claims and dismissed her from the case; the court granted
summary judgment in part to Mr. Papa terminating the claim against
him that he made false statements with respect to alleged collusive
pricing at the Generic Rx business.
The court did not grant summary judgment on statements made about
the integration of Omega during 2015.
As to the Company, the court held oral argument in mid-November
2023 and reserved ruling on the issue of possible Company liability
for alleged collusive pricing; the parties and the Court also
discussed aspects of defendants' challenges to the plaintiffs'
experts.
Thereafter, parties engaged in a court-ordered settlement
conferences and the case remains ongoing against Perrigo.
There can be no certainty that Perrigo will be successful in these
further proceedings.
The Company intends to defend the lawsuit vigorously.
Perrigo Company PLC is a provider of over-the-counter health and
wellness solutions. It is headquartered in Ireland and markets
around the world.
PERRIGO COMPANY: March 21 Settlement Certification Hearing Set
--------------------------------------------------------------
Perrigo Company PLC disclosed in its Form 10-K Report for the
fiscal period ending December 31, 2024 filed with the Securities
and Exchange Commission on February 27, 2024, that the in Tel Aviv
District Court has scheduled the Baton class suit settlement
certification hearing on March 21, 2024.
On December 31, 2018, a shareholder filed an action against the
Company, its former CEO Murray Kessler, and its former CFO Ronald
Winowiecki in Tel Aviv District Court (Baton v. Perrigo Company
plc, et. al.).
The case is a securities class action brought in Israel making
similar factual allegations for the same period as those asserted
in a securities class action case (for those who purchased on a
U.S. exchange) in New York federal court in which the settlement
received final approval in February 2022.
The Baton case alleges that persons who purchased securities
through the Tel Aviv stock exchange and suffered damages can assert
claims under Israeli securities law that will follow the liability
principles of Sections 10(b) and 20(a) of the U.S. Securities
Exchange Act.
The plaintiff does not provide an estimate of class damages.
Since 2019, the court granted several requests by Perrigo to stay
the proceedings pending the resolution of proceedings in the New
York federal court.
During 2022, the case was reassigned to a newly-appointed judge.
After the settlement of the U.S. case in New York federal court,
Perrigo's counsel informed the Israeli Court of the final approval
of the settlement of the U.S. case.
The parties then sought further stays of the case while they
attempted mediation, which the Court granted.
In April 2023, the parties reported to the Court that the mediation
had led to a preliminary agreement on settlement.
The parties submitted settlement papers to the Court on November
17, 2023.
The Court set a deadline of early January 2024 for objections to
the proposed class settlement; various papers were filed, and the
Court ordered the parties to submit further briefing in February
2024.
The Court set a hearing on the motion to certify the settlement for
March 21, 2024.
Perrigo Company PLC is a provider of over-the-counter health and
wellness solutions. It is headquartered in Ireland and markets
around the world.
PRIME RANGERS: Misclassifies Satellite Technicians, Denbo Claims
----------------------------------------------------------------
CHRISTIAN DENBO, on behalf of himself and all others similarly
situated, Plaintiff v. PRIME RANGERS, INC., and RINNEL WILLIAMS,
Defendants, Case No. 1:24-cv-00883-LMM (N.D. Ga., February 27,
2024) accuses the Defendants of violating the Fair Labor Standards
Act. The class action arises from the Defendants' failure to pay
Plaintiff overtime wages at the rate of one and one-half times
their regular rate of pay for hours worked in excess of 40 during
the workweek.
Defendants Prime Rangers and Williams employed Plaintiff as a
satellite technician and installer during the approximate period
August 2022 through June 2023. However, the Defendants incorrectly
classified Plaintiff and other technicians as independent
contractors. As a result, Plaintiff and other technicians were not
paid proper overtime wages for their hours worked more than 40
hours per workweek in violation of the FLSA, says the suit.
Based in McDonough, GA, Prime Rangers, Inc. is an authorized DISH
Satellite television retailer that specializes in satellite
television and Internet service. [BN]
The Plaintiff is represented by:
Christopher B. Hall, Esq.
Gordon Van Remmen, Esq.
Douglas Blatecky, Esq.
HALL & LAMPROS, LLP
300 Galleria Parkway Suite 300
Atlanta, GA 30339
Telephone: (404) 876-8100
Facsimile: (404) 876-3477
E-mail: chall@hallandlampros.com
doug@hallandlampros.com
gordon@hallandlampros.com
PROGRESS RESIDENTIAL: Loses Bid to Compel Arbitration in Tate Suit
------------------------------------------------------------------
Judge Stephen M. McNamee of the U.S. District Court for the
District of Arizona denies the Defendant's Motion to Compel
Arbitration in the lawsuit styled Mitchell L. Tate, Plaintiff v.
Progress Residential LLC, Defendant, Case No. 2:23-cv-01203-SMM (D.
Ariz.).
Plaintiff Mitchell Tate rented a residential property managed by
Defendant Progress Residential LLC. Beginning in the fall of 2022,
the Defendant began contacting the Plaintiff through his cellular
phone, attempting to collect purported past due rent obligations.
These calls, of which the Plaintiff reports dozens, were in the
form of automated or prerecorded voice messages.
The Plaintiff believed that the calls were in error because he was
current on his rent payments. He contacted the Defendant and
demanded that the calls cease because he did not owe any past due
rent to the Defendant. Despite his demand, the calls continued.
On June 30, 2023, the Plaintiff brought claims against the
Defendant for violations of the Telephone Consumer Protection Act
(TCPA) and the Georgia Fair Business Practices Act (GFBPA). He
brings the TCPA claim as a putative nationwide class action.
On Sept. 7, 2023, the Defendant filed the Motion to Compel
Arbitration that is now before the Court. The Defendant argues that
the Plaintiff agreed to the Terms of Use of its website when he
submitted his online rental application.
Contained in the Defendant's Terms of Use is an Arbitration Clause
that provides, in relevant part, that "Any claim or dispute arising
out of or relating to these Terms of Service or the Services will
be settled by binding arbitration." The Plaintiff filed a Response
in opposition to the Motion to Compel Arbitration, contending that
he did not agree to the Defendant's Terms of Use, and even if he
had agreed, the Arbitration Clause does not cover the claims that
he brings against the Defendant.
The Court considers two factors when determining whether a dispute
should be resolved through arbitration: "(1) whether there is an
agreement to arbitrate between the parties; and (2) whether the
agreement covers the dispute," citing Brennan v. Opus Bank, 796
F.3d 1125, 1130 (9th Cir. 2015).
The parties dispute whether the Plaintiff agreed to the Arbitration
clause contained in the Defendant's Terms of Use and whether the
Arbitration clause encompasses his claims. The Defendant argues
that the Plaintiff agreed to the Arbitration clause when he
submitted his online rental application with the Defendant.
The Plaintiff contends that the Defendant's Terms of Use are
contained in a "browsewrap" fashion and, thus, he was never
required to accept the Terms. He further argues that even if he did
agree to the Terms of Use, his claims fall outside the scope the
Defendant's Terms of Use and thus are not subject to arbitration.
The Defendant disputes the Plaintiff's characterization of the
Terms of Use and contends that the Terms of Use is a valid
"clickwrap" agreement because he was required to affirmatively
indicate assent to the Terms in his rental application.
The Terms of Use at issue is available on the Defendant's website
and are hyperlinked at various locations. The initial presentation
of the Defendant's Terms of Use can be found at its landing page at
rentprogress.com, which displays a banner at the bottom of the
screen that states, "By using this site, you agree to the Terms of
Service and Privacy Policy." The Terms of Use and Privacy Policy
are hyperlinked at the underlined text.
Within the Terms of Use is the Arbitration clause that the
Defendant seeks to enforce, which provides, in relevant part, that
any claim or dispute arising out of or relating to these Terms of
Service or the Services will be settled by binding arbitration.
The Defendant identifies several junctures at which it argues that
the Plaintiff assented to the Terms of Use. The Defendant's primary
argument is that the Plaintiff agreed to the Terms of Use at the
"Additional Information" page of the rental application he
submitted, where he was prompted to--and did--agree to the
statement "I agree to abide by the terms and conditions set forth
in this lease application."
However, Judge McNamee notes, no hyperlink is contained in the
statement; consequently, the Terms are neither a pure browsewrap
nor a pure clickwrap agreement. Due to the absence of a hyperlink
at this specific juncture, the Defendant's argument relies on the
cumulation of hyperlinked references to the Terms of Use in
combination with the final indication of assent to the unlinked
"terms and conditions set forth in this lease application," to
support its conclusion that the Plaintiff assented to the Terms.
The Court finds that the display of the Terms of Use at the
rentprogress.com landing page, when taken in isolation, is
presented in a "browsewrap" fashion and does not bind the Plaintiff
to the Terms of Use. Neither party disputes that the Plaintiff used
the Defendant's website in order to submit a rental application.
However, though the Terms of Use are hyperlinked on the landing
page, the user is not required to affirmatively manifest assent to
the terms. Accordingly, this display does not suffice to create a
valid contract between the parties.
This conclusion also applies to the first references to the Terms
of Use in the rental application which the Plaintiff submitted,
Judge McNamee holds. At two pages of the rental application there
are displayed hyperlinked prompts which read "Check out our Terms &
Privacy" or "please read our Terms & Privacy."
By their plain language, although these prompts do direct the user
to the Terms & Privacy, Judge McNamee points out that neither
indicates that the user agrees to the Terms & Privacy. The user is
not required to follow the hyperlinks or acknowledge the Terms in
any manner before proceeding to the next page of the rental
application. As such, these references to the Terms are also
presented in a browsewrap fashion and do not bind Plaintiff to the
Terms of Use.
In sum, Judge McNamee says, the Defendant's argument that the Terms
of Use is a valid clickwrap agreement relies on a cumulation of
references to the Terms to support the conclusion that the
Plaintiff agreed to be bound. However, the Court finds that the
Defendant's online rental application failed at each of these
instances to secure the Plaintiff's unambiguous assent to the
Defendant's Terms of Use.
All of the references are either pure browsewrap agreements or are
too ambiguous to have placed the Plaintiff on notice of the Terms.
As such, Judge McNamee holds that the first Brennan factor is not
satisfied because there is no valid agreement to arbitrate between
the parties.
The Court finds the Plaintiff did not agree to the Terms of Use set
forth on the Defendant's website and, as such, there is no valid
agreement to arbitrate between the parties.
Accordingly, Judge McNamee denies the Defendant's Motion to Compel
Arbitration. The Defendant must answer the Complaint or otherwise
respond by appropriate motion within the time provided by the
applicable provisions of Rule 12(a) of the Federal Rules of Civil
Procedure.
A full-text copy of the Court's Order dated Feb. 12, 2024, is
available at https://tinyurl.com/3yuakvb9 from PacerMonitor.com.
PROGRESSIVE CASUALTY: Must Oppose Class Cert Bid by April 15
------------------------------------------------------------
In the class action lawsuit captioned as THURSTON v. PROGRESSIVE
CASUALTY INSURANCE COMPANY, et al., Case No. 1:22-cv-00375 (D.
Maine, Filed Nov. 30, 2022), the Hon. Judge Nancy Torresen entered
an order that the Defendants' opposition to the Plaintiff's motion
to certify class shall be filed by April 15, 2024.
-- Any reply shall be filed within 30 days of the opposition.
-- All other scheduling deadlines shall remain the same.
The nature of suit states Contract – Insurance.
Progressive is a casualty insurance company.[CC]
PROGRESSIVE SPECIALTY: 3rd Cir. Appeal Filed in Drummond Suit
--------------------------------------------------------------
PROGRESSIVE SPECIALTY INSURANCE CO., et al. have filed an appeal in
lawsuit entitled Leon Drummond, et al., individually and on behalf
of all others similarly situated, Plaintiffs, v. Progressive
Specialty Insurance Co., et al., Defendants, Case No.
5-21-cv-04479, in the U.S. District Court for the Eastern District
of Pennsylvania.
As previously reported in the Class Action Reporter, Plaintiffs
Leon Drummond and Lee Williams alleged that Progressive violated
insurance contracts between the two Plaintiffs and the company --
as well as the insurance contracts of other insureds who
experienced a total loss -- by applying projected sold adjustments
("PSA") to artificially deflate the value of totaled vehicles and
thereby pay insureds less than the contractually obligated actual
cash value ("ACV") of said vehicles. Additionally, the complaint
noted that Drummond and Williams would seek class certification to
represent all persons who made a first-party claim on an insurance
policy from Progressive where the payout was decreased after the
application of a PSA.
The complaint contained four causes of action. First, the complaint
proposed that Drummond would lead a class asserting a
breach-of-contract cause of action against Progressive Specialty
(First Cause of Action) and Williams would lead a class asserting a
breach-of-contract cause of action against Progressive Advanced
(Second Cause of Action). Moreover, both Drummond and Williams
sought declaratory judgment (Third and Fourth Causes of Action). On
Dec. 17, 2021, Progressive filed an answer, in which it denied that
the use of PSAs constituted a breach of contract and asserted that
the proposed class did not meet the requirements for class
certification.
On June 14, 2022, the Court consolidated the action with Driggins
v. Progressive Advanced Insurance Co., Civ. A. No. 22-1065.
Consequently, on June 29, 2022, Drummond and Williams filed with
Yeshonda Driggins ("Driggins") an amended complaint, the operative
complaint in this case. The amended complaint contains the same
causes of action as the original complaint, except Driggins joins
Williams in leading a breach-of-contract cause of action and
seeking declaratory judgment against Progressive Advanced. On July
22, 2022, Progressive answered the amended complaint, raising
largely the same claims and arguments contained within its first
answer.
On Oct. 12, 2022, the Plaintiffs filed a motion to certify class,
which the Court granted through an Order entered by Judge Edward G.
Smith on Aug. 11, 2023.
On Sept. 11, 2023, the Defendants filed a motion for summary
judgment, which the Plaintiffs opposed on Nov. 10, 2023.
On Dec. 6, 2023, the Plaintiffs filed an application for Admission
Pro Hac Vice of Brian A. Glasser, which the Court granted through
an Order entered by Judge Mark A. Kearney on Dec. 8, 2023.
On Dec. 7, 2023, the court vacated a portion of an order it entered
on September 15 granting Defendant's motion to seal, to the extent
it confirms oral argument saying they might not need oral argument.
Defendants were ordered to file a notice within 3 days of the Court
of Appeal's disposition of the pending Rule 23(f) Petition and the
parties' proposals for specific steps towards final judgment
consistent with Rule 1.
The appellate case is captioned Leon Drummond, et al. v.
Progressive Specialty Insurance Co., et al., Case No. 24-1267, in
the United States Court of Appeals for the Third Circuit, filed on
February 14, 2024. [BN]
Plaintiffs-Appellees LEON DRUMMOND, et al., on behalf of themselves
and all others similarly situated, are represented by:
Joseph H. Bates, III, Esq.
Edwin L. Lowther, III, Esq.
CARNEY BATES & PULLIAM
One Allied Drive, Suite 1400
Little Rock, AR 72202
Telephone: (501) 312-8500
- and -
Jacob L. Phillips, Esq.
NORMAND
3165 McCrory Place, Suite 175
Orlando, FL 32803
Telephone: (407) 603-6031
Defendants-Appellants PROGRESSIVE SPECIALTY INSURANCE CO., et al.
are represented by:
Jeffrey S. Cashdan, Esq.
KING & SPALDING
1180 Peachtree Street NE, Suite 1600
Atlanta, GA 30309
Telephone: (404) 572-4600
- and -
Paul A. Mezzina, Esq.
Amy R. Upshaw, Esq.
KING & SPALDING
1700 Pennsylvania Avenue NW, Suite 900
Washington, DC 20006
Telephone: (202) 626-8972
(202) 626-2915
RICHARD ROBINSON: Thomas Remains as Sole Plaintiff in Class Suit
----------------------------------------------------------------
In the class action lawsuit captioned as Anthony David Thomas, et
al., v. Richard Lee Robinson, et al., Case No.
2:24-cv-10250-SFC-PTM (E.D. Mich.), the Hon. Judge Sean F. Cox
entered an order that all Plaintiffs except Plaintiff Anthony David
Thomas are dismissed without prejudice.
The Court said, "The Plaintiff must submit the $350.00 filing fee
with the additional $52.00 administrative fee or file the required
Prisoner's Application to Proceed Without Prepayment of Fees and
Costs and Authorization to Withdraw from the Trust Fund Account, a
current Certification/Business Manager's Account Statement, and a
statement of Trust Fund Account (or institutional equivalent) for
the six-month period immediately preceding the filing of the
complaint."
Should the Plaintiff Thomas fail to correct this deficiency, the
Court must presume that he is not proceeding without prepayment of
the fee, assess the entire fee, and order the case dismissed for
want of prosecution. If the action is dismissed under such
circumstances, it will not be reinstated even if he subsequently
pays the fee.
The Court will sever lead Plaintiff Anthony David Thomas's case
from the remaining Plaintiffs. The Court will dismiss the remaining
Plaintiffs' claims without prejudice. The Court will require the
Plaintiff Thomas to correct a filing fee deficiency and to file an
amended complaint.
The Plaintiff Thomas, however, may not proceed with this action
unless and until he pays the filing fee or files the necessary
papers to proceed in forma pauperis.
A copy of the Court's order dated Feb. 29, 2024 is available from
PacerMonitor.com at https://urlcurt.com/u?l=pTWsXy at no extra
charge.[CC]
RIVIAN AUTOMOTIVE: Seeks Leave to File Certain Exhibits in Crews
----------------------------------------------------------------
In the class action lawsuit captioned as CHARLES LARRY CREWS, JR.,
Individually and on Behalf of All Others Similarly Situated, v.
RIVIAN AUTOMOTIVE, INC., ROBERT J. SCARINGE, CLAIRE MCDONOUGH,
JEFFREY R. BAKER, KAREN BOONE, SANFORD SCHWARTZ, ROSE MARCARIO,
PETER KRAWIEC, JAY FLATLEY, PAMELA THOMAS- GRAHAM, MORGAN STANLEY &
CO., LLC, GOLDMAN SACHS & CO., LLC, J.P. MORGAN SECURITIES LLC,
BARCLAYS CAPITAL INC., DEUTSCHE BANK SECURITIES INC., ALLEN &
COMPANY LLC, BOFA SECURITIES, INC., MIZUHO SECURITIES USA LLC,
WELLS FARGO SECURITIES, LLC, NOMURA
SECURITIES INTERNATIONAL, INC., PIPER SANDLER & CO., RBC CAPITAL
MARKETS, LLC, ROBERT W. BAIRD & CO. INC., WEDBUSH SECURITIES INC.,
ACADEMY SECURITIES INC., BLAYLOCK VAN, LLC, CABRERA CAPITAL MARKETS
LLC, C.L. KING & ASSOCIATES, INC., LOOP CAPITAL MARKETS LLC, SAMUEL
A. RAMIREZ & CO., INC., SIEBERT WILLIAMS SHANK & CO., LLC, and
TIGRESS FINANCIAL PARTNERS LLC, Case No. 2:22-cv-01524-JLS-E (C.D.
Cal.), the Rivian Defendants ask the Court granting them leave to
file Exhibits 4, 5, 9, 10, 11, and 12 to the Leong Declaration
partially under seal.
-- The Rivian Defendants' request to seal is narrowly targeted to
only information that would identify FE-1, -2, -3, -4, and -5,
the
confidential witnesses cited by the Plaintiffs in their
Consolidated Complaint and Amended Consolidated Complaint.
-- Sealing the information will not unduly obstruct the right of
public access to court records, particularly when redacted
versions of these documents have also been filed.
Rivian is an American electric vehicle manufacturer and automotive
technology and outdoor recreation company.
A copy of the Plaintiff's motion dated Feb. 29, 2024 is available
from PacerMonitor.com at https://urlcurt.com/u?l=DBCpFR at no extra
charge.[CC]
The Defendants are represented by:
Boris Feldman, Esq.
Doru Gavril, Esq.
Eunice Leong, Esq.
Rebecca Lockert, Esq.
Olivia Rosen, Esq.
FRESHFIELDS BRUCKHAUS DERINGER US LLP
855 Main Street
Redwood City, CA 94063
Telephone: (650) 618-9250
E-mail: boris.feldman@freshfields.com
doru.gavril@freshfields.com
eunice.leong@freshfields.com
rebecca.lockert@freshfields.com
olivia.rosen@freshfields.com
SANTA MONICA, CA: Murcia Bid for Class Cert. Deemed Withdrawn
-------------------------------------------------------------
In the class action lawsuit captioned as REYES CONTRERAS MURCIA, et
al., v. CITY OF SANTA MONICA, et al., Case No.
2:22-cv-05253-FLA-MAR (C.D. Cal.), the Hon. Judge Fernando
Aenlle-Rocha entered an order approving stipulation to vacate dates
in advance of approval of settlement:
-- The Plaintiffs' motion for class certification is deemed
withdrawn;
-- All pretrial, trial, and related dates are vacated;
-- Within 90 days of the Order, the Plaintiffs shall file a Motion
for preliminary approval of proposed class action settlement or
the parties shall file a joint status report regarding why the
motion has not been filed.
On March 1, 2024, the Plaintiffs Reyes Contreras Murcia and Sherman
A.
Perryman and Defendants City of Santa Monica, Ramon Batista, David
White, Matthew Lieb, and the Santa Monica Police Department filed a
notice of conditional settlement and request to vacate all pretrial
and trial dates. The parties state they have reached a tentative
settlement that would dispose of the entire litigation, but must
first obtain approval from the City Council of the City of Santa
Monica.
Santa Monica is a coastal city west of downtown Los Angeles.
A copy of the Court's order dated March 1, 2024 is available from
PacerMonitor.com at https://urlcurt.com/u?l=Zg7GU1 at no extra
charge.[CC]
SAVE MART: Plaintiffs' Bid for Class Cert Extended to July 5
------------------------------------------------------------
In the class action lawsuit captioned as KATHERINE BAKER, JOSE
LUNA, EDGAR POPKE, AND DENNY G. WRASKE Jr., on behalf of themselves
and all others similarly situated, v. SAVE MART SUPERMARKETS, Case
No. 3:22-cv-04645-AMO (N.D. Cal.), the Hon. Judge Araceli
Martínez-Olguin entered an order granting the stipulation
extending class certification briefing schedule:
-- The Plaintiffs shall file their motion for class certification
by
July 5, 2024;
-- The Defendants will file their opposition by Aug. 9, 2024;
-- The Plaintiffs will file their reply by Aug. 30, 2024; and
-- The hearing is set for Sept. 19, 2024.
Save Mart operates a chain of supermarkets.
A copy of the Court's order dated Feb. 29, 2024 is available from
PacerMonitor.com at https://urlcurt.com/u?l=k5hCyV at no extra
charge.[CC]
The Plaintiffs are represented by:
Anne B. Shaver, Esq.
Michelle A. Lamy, Esq.
Benjamin A. Trouvais, Esq.
LIEFF CABRASER HEIMANN & BERNSTEIN, LLP
275 Battery St., 29th Floor
San Francisco, CA 94111-3339
Telephone: (415) 956-1000
Facsimile: (415) 956-1008
- and -
James P. Keenley, Esq.
Emily A. Bolt, Esq.
BOLT KEENLEY KIM LLP
2855 Telegraph Ave., Suite 517
Berkeley, CA 94705
Telephone: (510) 225-0696
Facsimile: (510) 225-1095
- and -
Matthew J. Matern, Esq.
Mikael H. Stahle, Esq.
MATERN LAW GROUP, PC
1230 Rosecrans Ave., Suite 200
Manhattan Beach, CA 90266
Telephone: (310) 531-1900
Facsimile: (310) 531-1901
The Defendant is represented by:
Shayne Henry, Esq.
KIRKLAND & ELLIS, LLP
300 North LaSalle
Chicago, IL 60654
SBK DELIVERY: Court Tosses w/o Prejudice Opt-in's Claims in Miller
------------------------------------------------------------------
In the class action lawsuit captioned as Timothy M. Miller II, V.
SBK Delivery, LLC, Case No. 2:21-cv-04744-MHW-EPD (S.D. Ohio), the
Hon. Judge Michael H. Watson entered an order dismissing without
prejudice each of the opt-in's claims.
Because the Court need not consider ECF No. 87-18 given the
dismissal of the opt-ins' claims, the Court denies as moot the
Defendant's motion to strike the same, ECF No. 100.
The Court will rule in separate orders on the summary judgment
issues as they relate only to Plaintiff. The Clerk shall terminate
ECF Nos. 100 and 108.
The Court said, "There is no common policy or theory of violation
that caused the Plaintiff and the opt-ins to accrue generally the
same amount of overtime. Accordingly, they could not utilize
representative evidence to show the general amount of unpaid
overtime. The purpose of proceeding collectively thus does not
exist here, and the Court concludes that Plaintiff has not
conclusively demonstrated that he is similarly situated to the
opt-ins."
Mr. Timothy M. Miller II sues SBK Delivery, LLC for and in [sic]
behalf of himself and other employees similarly situated under the
Fair Labor Standards Act ("FLSA"), for alleged unpaid overtime
compensation. He alleges that he and other similarly situated
employees were delivery drivers whom the Defendant improperly
classified as independent contractors and then failed to pay
overtime.
The Defendant supplies package delivery drivers for other
companies.
A copy of the Court's opinion and order dated Feb. 29, 2024 is
available from PacerMonitor.com at https://urlcurt.com/u?l=MDaG7c
at no extra charge.[CC]
SERGIMMO TRATTORIA: Fails to Pay Proper Wages, Aguilar Alleges
--------------------------------------------------------------
ESPIDIRION AGUILAR, on behalf of himself and all other persons
similarly situated, Plaintiff v. SERGIMMO TRATTORIA INC.; SERGIMMO
WHITESTONE, INC.; and FRANCESCO SERGIO BADALAMENTI, Defendants,
Case No. 1:24-cv-01483 (S.D.N.Y., Feb. 27, 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 Aguilar was employed by the Defendants as a deli worker.
SERGIMMO TRATTORIA INC. operates as an Italian deli with a robust
menu that includes imported meats & house-made mozzarella. [BN]
The Plaintiff is represented by:
Peter A. Romero, Esq.
ROMERO LAW GROUP PLLC
490 Wheeler Road, Suite 277
Hauppauge, New York 11788
Telephone: (631) 257-5588
Email: promero@romerolawny.com
SURGICARE OF SILICON: Fails to Pay Proper Wages, Dauphinais Says
----------------------------------------------------------------
ELIZABETH DAUPHINAIS, as an individual and on behalf of all others
similarly situated, Plaintiff v. SURGICARE OF SILICON VALLEY, LLC;
SILICON VALLEY SURGERY CENTER, L.P.; BASCOM SURGERY CENTER; and
DOES 1 through 50, inclusive, Case No. 24CV431989 (Cal. Super.,
Santa Clara Cty., February 27, 2024) arises from the challenges
systemic illegal employment practices resulting in violations of
the California Labor Code against individuals who worked for
Defendants.
The Plaintiff has been employed by Defendants since in or around
August 2021. Throughout her employment Plaintiff worked as an
hourly, non-exempt employee. However, the Defendants failed to pay
Plaintiff for all hours she worked due to the unlawful rounding of
time, in violation of the California Labor Code. In addition, the
Defendants also failed to provide Plaintiff with accurate wage
statements, says the suit.
Surgicare of Silicon Valley, LLC is a Delaware limited liability
company that owns and operates surgical centers. [BN]
The Plaintiff is represented by:
Larry W. Lee, Esq.
Kristen M. Agnew, Esq.
Nicholas Rosenthal, Esq.
DIVERSITY LAW GROUP, P.C.
515 South Figueroa Street, Suite 1250
Los Angeles, CA 90071
Telephone: (213) 488-6555
Facsimile (213) 488-6554
E-mail: lwlee@diversitylaw.com
kagnew@diversitylaw.com
nrosenthal@diversitylaw.com
- and -
William L. Marder, Esq.
POLARIS LAW GROUP
501 San Benito Street, Suite 200
Hollister, CA 95023
Telephone: (831) 531-4214
Facsimile (831) 634-0333
E-mail: bill@polarislawgroup.com
TELEPHONE AND DATA: Ohnemus Sues Over Breach of Fiduciary Duties
----------------------------------------------------------------
JASON G. OHNEMUS, BROOK S. PAYNE, individually, and as
representatives of a Class of participants and Beneficiaries of the
Telephone and Data Systems, Inc. Tax Deferred Savings Plan,
Plaintiffs v. TELEPHONE AND DATA SYSTEMS, INC. and BOARD OF
DIRECTORS OF TELEPHONE AND DATA SYSTEMS, INC., Case No.
4:24-cv-00081-RGE-HCA (S.D. Iowa, February 28,2024) alleges
violations of the Employee Retirement Income Security Act.
The Plaintiffs allege two ERISA violations against Defendants: a
violation of the duty of prudence against Defendants for charging
Plan participants excessive Bundled recordkeeping and
administration (RKA) fees, and a claim against Defendants for
failure to monitor fiduciaries responsible for Plan administration
with regard to Plan Bundled RKA fees. The Defendants breached their
duty of prudence they owed to the Plan by requiring the Plan to pay
excessive recordkeeping, and failing to remove their high-cost
recordkeeper, Alight Solutions/Aon Consulting, the Plaintiffs
assert.
Headquartered in Chicago, IL, Telephone and Data Systems, Inc. is a
telecommunications service company providing wireless products and
services; cable and wireline broadband, TV and voice services; and
hosted and managed services to approximately 6 million customers
nationwide through its business units TDS Telecom and U.S. Cellular
and OneNeck IT Solutions. [BN]
The Plaintiffs are represented by:
Jill M. Zwagerman, Esq.
NEWKIRK ZWAGERMAN, P.L.C.
3900 Ingersoll Ave., Suite 201
Des Moines, IA 50312
Telephone: (515) 883-2000
E-mail: jzwagerman@newkirklaw.com
- and -
Paul M. Secunda, Esq.
WALCHESKE & LUZI, LLC
235 N. Executive Dr., Suite 240
Brookfield, WI 53005
Telephone: (414) 828-2372
Facsimile: (262) 565-6469
E-mail: psecunda@walcheskeluzi.com
TEN BRIDGES: W.D. Washington Refuses to Certify Class in Taie Suit
------------------------------------------------------------------
Judge John C. Coughenour of the U.S. District Court for the Western
District of Washington, Seattle, denies the Plaintiffs' motion for
class certification in the lawsuit entitled MARY TAIE, MOYRA COOP,
and WILLIAM GROVES, on behalf of themselves and all others
similarly situated, Plaintiffs v. TEN BRIDGES LLC, et al.,
Defendants, Case No. 2:21-cv-00526-JCC (W.D. Wash.).
According to the Plaintiffs' complaint, Clifford Groves died
intestate in 2010, leaving Plaintiffs Mary Taie, Moyra Coop, and
William Groves as his only heirs. They inherited their father's
home, subject to a deed of trust. In 2014, a foreclosure action was
filed in state court against the estate based on this deed of
trust. Ms. Taie was named a defendant in the foreclosure action,
alongside the "unknown heirs" of Clifford Groves.
After a sheriff's sale of the Groves home, the surplus foreclosure
proceeds of $135,224.51 remained, and were held on deposit in the
state court registry.
Defendant Ten Bridges LLC monitored the foreclosure action and,
when it learned about the sale, reached out to the Plaintiffs and
contracted with them to execute quitclaim deeds, selling their
rights to the foreclosure surplus proceeds to Ten Bridges for
$5,000 each.
Though not a party to the state foreclosure lawsuit, Ten Bridges
then moved the King County Superior Court to disburse the funds.
That court denied the motion. It then ordered Ten Bridges to
provide notice to the Plaintiffs. Ten Bridges then filed a second
motion to release the funds and served the Plaintiffs by mail. The
King County Superior Court then granted Ten Bridges' request.
The Plaintiffs later filed this putative class action against Ten
Bridges and its principal, Demian Heald, asserting claims under
Washington's Consumer Protection Act ("CPA") and Uniform Voidable
Transactions Act, along with non-statutory claims, namely,
conversion, unjust enrichment, negligent misrepresentation, and
abuse of the corporate form.
The parties cross-moved for summary judgment, resulting in the
dismissal of all but the Plaintiffs' unjust enrichment claim, for
which summary judgment was granted to the Plaintiffs. The Court now
considers the Plaintiffs' request for class certification with
respect to this claim.
At the outset, Judge Coughenour finds the Plaintiffs failed to
establish predominance. To prove unjust enrichment on a classwide
basis, they must show that each class member conferred a benefit on
Ten Bridges under such circumstances as to make it inequitable for
the defendant to retain the benefit without payment of its value.
Judge Coughenour opines that this requires an individualized
inquiry into the inequitable circumstances in each instance. As a
result, common questions rarely predominate in unjust enrichment
claims and courts often refuse to certify classes based on such
claims.
The Plaintiffs respond that unjust enrichment claims have been the
basis for class certification, citing In re Pepperdine Univ.
Tuition & Fees Covid-19 Refund Litig., 2023 WL 6373845 (C.D. Cal.
2023). This is true, Judge Coughenour says, but those instances
involve unique circumstances where the plaintiffs suffered a common
injustice of equivalent and identical weight, thereby not requiring
an individualized inquiry into (in)equitable circumstances.
Although the scheme operated by Ten Bridges produced a common
inequity insofar as the business practices are the same, the trier
of fact must still consider how and to what extent an injustice
occurred, Judge Coughenour says. But in any event, the Plaintiffs
failed to analyze or establish predominance as to their unjust
enrichment claims thereby failing to satisfy the demands of Rule
23(b)(3).
Accordingly, the Court rules that:
1. The Plaintiffs' motion for class certification is denied;
and
2. The Plaintiffs are awarded judgment against the Defendant
in the amount of $135, 224.51. That judgment representing
the aggregate sum of the foreclosure sale surplus proceeds.
A full-text copy of the Court's Order dated Feb. 12, 2024, is
available at https://tinyurl.com/bdhh5kch from PacerMonitor.com.
TRINITY HEALTH: Faces Greer Wage & Hour Suit in Michigan
--------------------------------------------------------
MARION GREER v. TRINITY HEALTH CORPORATION, Case No.
2:24-cv-10504-NGE-EAS (E.D. Mich., February 28, 2024) is a class
action alleging the Defendant of violating the Fair Labor Standards
Act and the Michigan Workforce Opportunity Wage Act.
The Plaintiff brings this action on behalf of herself and all
Michigan-based non-exempt employees of Defendant who were required
to first boot up and log into their computers and access the
company's virtual private network in order to clock in for the day.
The Plaintiff further alleges that she and similarly situated
employees were not paid for preliminary activities that were
integral to their principal work activities, including booting up
their computer and accessing the VPN before clocking in for the
day. Additionally, Defendant failed to pay Plaintiff and class
members the required federal minimum wage. Such acts are in
violation of the FLSA and WOWA, the Plaintiff claims.
Trinity Health Corporation operates as a non-profit healthcare
organization and is headquartered and principally does business in
Wayne County, MI. [BN]
The Plaintiff is represented by:
Craig J. Ackermann, Esq.
Brian Denlinger, Esq.
ACKERMANN & TILAJEF, P.C.
315 S. Beverly Drive, Ste. 504
Beverly Hills, CA 90212
Telephone: (310) 277-0614
E-mail: cja@ackermanntilajef.com
bd@ackermanntilajef.com
- and –
Matthew J. Clark, Esq.
GREGORY, MOORE, BROOKS & CLARK, P.C.
28 W. Adams, Ste. 300
Detroit, MI 48226
Telephone: (313) 964-5600
E-mail: matt@unionlaw.net
- and –
Raphael A. Katri, Esq.
LAW OFFICES OF RAPHAEL A. KATRI, APC
8549 Wilshire Blvd., Ste. 200
Beverly Hills, CA 90211
Telephone: (310) 940-2034
E-mail: rkatri@katrilaw.com
TRINITY UNIVERSAL: Lance Sues Over Unprotected Personal Info
------------------------------------------------------------
DAVID LANCE, individually and on behalf of others similarly
situated, Plaintiff v. TRINITY UNIVERSAL INSURANCE COMPANY,
Defendant, Case No. 3:24-cv-00480-X (N.D. Tex., February 28,2024)
arises from the Defendant's inadequate safeguarding of personal
information that it collected and maintained and for its failure to
provide timely and adequate notice to Plaintiff and other customers
that their information had been subject to the unauthorized access
by an unknown third party.
Between July 7, 2023, and July 10, 2023, an unknown and
unauthorized criminal actor gained access to Defendant's backup
tapes and exfiltrated Plaintiff's and Class member's personal
information. However, Plaintiff alleges that the Defendant's data
breach notification letter exacerbate the circumstances for victims
of the data breach because it was sent to any victims six months
later on or around February 15, 2024, says the suit.
Headquartered in Dallas, TX, Trinity Universal Insurance Company
provides insurance and financial services throughout Texas and the
United States. [BN]
The Plaintiff is represented by:
Andrew J. Shamis, Esq.
SHAMIS & GENTILE P.A.
14 NE 1st Ave., Suite 705
Miami, FL 33132
Telephone: (305) 479-2299
E-mail: ashamis@shamisgentile.com
UAG ESCONDIDO: S.D. California Dismisses Esparza Class Suit
-----------------------------------------------------------
Judge Dana M. Sabraw of the U.S. District Court for the Southern
District of California grants the Defendant's motion to dismiss the
lawsuit entitled MIGUEL ESPARZA, individually and on behalf of all
others similarly situated, Plaintiff v. UAG ESCONDIDO A1 INC., a
Delaware corporation, dba ACURAOFESCONDIDO.COM, and DOES 1 through
10, inclusive, Defendants, Case No. 3:23-cv-00102-DMS-KSC (S.D.
Cal.).
On Nov. 30, 2022, Plaintiff Miguel Esparza filed the present case
against Defendant UAG Escondido A1 Inc. in the Superior Court of
the State of California for the County of San Diego. In the
original Complaint, the Plaintiff alleged he used his smart phone
to visit the Defendant's website, www.acuraofescondido.com.
Through the website's chat feature, the Plaintiff had a
conversation with the Defendant. He alleged the Defendant was
secretly recording that conversation or allowing, aiding, and
abetting a third party to intercept and eavesdrop on them in real
time.
Indeed, the Plaintiff alleged the Defendant secretly wiretaps the
private conversations of everyone, who communicates through the
chat feature on its website, and allows at least one third party to
eavesdrop on such communications in real time and during
transmission to harvest data for financial gain. The Plaintiff
alleged the wiretapping and eavesdropping was enabled by embedding
software code on the Defendant's website. He further alleged the
data from those transcripts are then used for targeted marketing or
other purposes.
As a result of the Defendant's alleged secret recording of its web
chats with the Plaintiff and others, the Plaintiff filed the
present case alleging claims under California's Invasion of Privacy
Act ("CIPA"). The Defendant removed the case to this Court alleging
jurisdiction under the Class Action Fairness Act ("CAFA"), and then
moved to dismiss the Complaint.
On July 23, 2023, the Court granted that motion, dismissing with
prejudice the Plaintiff's claims under clauses one, two, and three
of California Penal Code Section 631(a), and dismissing without
prejudice the Plaintiff's claim under section 631(a), clause four.
Following that ruling, the Plaintiff filed a First Amended
Complaint ("FAC"). In the FAC, he alleges that within the last year
and while physically within California, he visited the Defendant's
Website using a smartphone and conducted a brief conversation
through the Website's chat feature. He alleges he was not advised
that his chat with the Defendant was being monitored, intercepted,
or recorded, nor did he consent thereto.
The Plaintiff now alleges the interloper in his web chat with the
Defendant was CarNow. He alleges that the Defendant allowed CarNow
to embed its chat technology code into the chat feature on the
Defendant's website. Through the use of that code, all chats on the
Defendant's website are routed through CarNow's servers so they may
simultaneously collect a transcript of that chat, along with other
user data, in real time and save it for later access.
The Plaintiff alleges CarNow is integrated with social media
platforms like Meta/Facebook and can become a lead generation
machine. He further alleges that the Defendant, CarNow, and Meta
profit from secretly exploiting the chat data through targeted
social media advertising. In short, the Plaintiff alleges CarNow
uses its record for Website user's interaction with the Defendant's
chat feature for data analytics and marketing/advertising to
consumers.
Given the Court's ruling on the Defendant's previous motion to
dismiss, the only claim that remains is the Plaintiff's claim under
section 631(a), clause four. This clause imposes liability on those
who aid, agree with, employ, or conspire with any person, who
violates clauses one through three. The Defendant argues the
Plaintiff has failed to state a claim under clause four, and thus,
the case should be dismissed with prejudice and without further
leave to amend.
The Court finds persuasive the reasoning of previous cases,
including Valenzuela v. Keurig Green Mountain, Inc., ___ F.Supp.3d
___, No. 22-CV-09042-JSC, 2023 WL 3707181, at *2 (N.D. Cal. May 24,
2023), and adopts the same conclusion here, namely, that clause one
does not apply to internet connections. Accordingly, Judge Sabraw
holds that the Plaintiff has failed to state a claim against CarNow
under Section 631(a), clause one.
The Court has reviewed both lines of cases on the issue of the
Plaintiff's claim under Section 631(a), clause two, and is inclined
to agree with those courts that have declined to extend the party
exemption to third parties.
Nevertheless, the Court need not reach that conclusion here because
even if the Court were to find the party exemption applied to third
parties, the Plaintiff has alleged sufficient facts to avoid
application of that exemption to CarNow on the present motion. As
the Defendant explains it, the party exemption applies only where
the third party simply records information and makes it available
to the defendant. If the third party uses the information for its
own purposes, it is no longer simply an extension of the party, and
hence, not entitled to the party exemption.
Here, Judge Sabraw points out, the Plaintiff alleges sufficient
facts to bring CarNow outside the exemption.
The Plaintiff asserts facts to support the substantial assistance
prong of his aiding and abetting claim by alleging that the
Defendant embedded CarNow's software code into its website. On the
knowledge prong, the Plaintiff argues the Court can infer the
Defendant's knowledge based on CarNow's "wiretapping and
eavesdropping" in violation of CIPA.
However, Judge Sabraw says, at this stage of the case, there has
been no finding that CarNow was engaged in wiretapping or
eavesdropping, and even if there was such a finding, that would not
speak to the Defendant's knowledge. Absent factual allegations on
that specific issue, the Plaintiff has failed to state an aiding
and abetting claim against the Defendant.
For these reasons, the Court grants the Defendant's motion to
dismiss. Consistent with the Plaintiff's request, the Court grants
him leave to file a Second Amended Complaint that cures the
pleading deficiency related to the knowledge element of his aiding
and abetting claim only. The Plaintiff is cautioned that if his
Second Amended Complaint does not cure this deficiency, his case
will be dismissed with prejudice and without further leave to
amend.
A full-text copy of the Court's Order dated Feb. 12, 2024, is
available at https://tinyurl.com/msx6ysca from PacerMonitor.com.
UNITED BEHAVIORAL: Desert Cove's Class Certification Bid Denied
---------------------------------------------------------------
Judge Jeffrey S. White of the U.S. District Court for the Northern
District of California issued an order denying the Plaintiffs'
motion for class certification and setting case management
conference in the lawsuit styled DESERT COVE RECOVERY, LLC, et al.,
Plaintiffs v. UNITED BEHAVIORAL HEALTH, Defendant, Case No.
4:19-cv-05721-JSW (N.D. Cal.).
Plaintiffs Desert Cove Recovery, LLC, Meridian Treatment Center,
Inc., and Hollywood Harmony, LLC, are behavioral healthcare
providers that provide substance abuse and mental health treatment.
They allege they formed contracts, either oral or implied, with
Defendant United Behavioral Health ("UBH") when UBH employees
verified benefits for or obtained preauthorization for the
Plaintiffs to treat UBH's insureds.
The Plaintiffs allege that during these calls UBH agreed to
reimburse them for medically necessary services, based on generally
accepted standards of medical care, but then denied coverage based
on UBH's Level of Care and Coverage Decision Guidelines ("UBH
Guidelines").
In addition to their contract claims, the Plaintiffs also bring a
claim for promissory estoppel and seek to recover the value of each
covered claim for services that was wrongfully denied, as
determined using the methodology for payment quoted by UBH on the
VOB call for that claim (such as usual and customary rate or a
Medicare-based rate).
The Plaintiffs have moved to certify the following class:
Any provider with an unreimbursed or under-reimbursed mental
health/substance use disorder claim denied by United
Behavioral Health using the [UBH] Guidelines for dates of
treatment between May 22, 2011 and January 31, 2019 for
those individuals with healthcare insurance plans not
subject to ERISA.
UBH argues the Plaintiffs cannot meet their burden to show there
are common questions of law or fact or that any such common
questions predominate over individual issues.
The Plaintiffs allege that contracts were formed during VOB and
pre-authorization calls, but VOB and authorization phone calls
alone are generally insufficient to form the basis for an oral or
implied contract because they lack a of manifestation of intent to
enter into a contract, Judge White opines, citing AToN Ctr., Inc.
v. BlueCross and Blue Shield of S. Car., No.
3:20-cv-000496-WQH-BGS, 2020 WL 4747752, at *3 (S.D. Cal. Aug. 17,
2020).
In In re First Alliance Mortgage Company 471 F.3d 977, 990 (9th
Cir. 2006), the court allowed class treatment of fraud claims
stemming from a common course of conduct. It reasoned that where a
"centrally organized strategy" is involved, such as when a standard
sales pitch is used, the "center of gravity of the fraud transcends
the specific details of oral communications."
The Plaintiffs argue that this case is analogous to cases like
First Alliance. The flaw in the Plaintiffs' argument is that the
record does not support it, Judge White holds.
Lisa Schmidt, UBH's Director of Member and Provider Services,
testified that UBH does not have specific scripts for VOB calls.
She also testified that the information it provides during those
calls is based on each member's policy. The Plaintiffs'
representatives also acknowledged that the substance of VOB calls
could vary, and Meridian's representative acknowledged that
information given during a VOP was not necessarily a guarantee that
those services would always be approved.
Ms. Schmidt also testified that the term "medical necessity" does
not appear in the program UBH uses to review subscriber benefits.
Ms. Schmidt's testimony is corroborated by the sample of VOB calls
UBH submitted. Indeed, Judge White notes, only a few transcripts
make reference to the term "medical necessity."
Similarly, although Mr. Ivie testified that Desert Cove created a
list of questions to pose to UBH on VOB calls, he acknowledged that
other facilities may pose different questions and gather different
information (Deposition of Desert Cove through Joseph Ivie). In
light of those differences, a fact finder would need to examine
individual calls to determine whether UBH's representatives went
beyond a standard VOB and reasonably signaled an intent to
transact.
Therefore, Judge White holds that the Plaintiffs have not put forth
evidence that shows a common course of conduct that would permit
the Court to determine "in one stroke" either that they formed
contracts with UBH or that UBH made a clear an unambiguous promise
to them.
The Court also concludes that whether UBH Guidelines do or do not
comport with generally accepted standards of medical care will not
generate common answers to drive resolution of this litigation
without individualized inquiries into the basis for denials.
The Plaintiffs rely heavily on the district court's decision in Wit
v. United Behavioral Health in which the plaintiffs also argued
that the UBH Guidelines did not comply with generally accepted
standards of medical care. In Wit v. United Behavioral Health, 79
F.4th 1068, 1076-78 (9th Cir. 2023) ("Wit II"), UBH appealed the
district court's decision to grant class certification. The appeals
court reversed the district court's order granting class
certification and held the plaintiffs "fell short of demonstrating
that all class members were denied a full and fair review of their
claims or that a common showing is possible."
Here, Judge White finds the Plaintiffs have not shown that their
claims are based on the same UBH Guidelines let alone shown that
they are based on Guidelines that have been conclusively determined
to be more restrictive than generally accepted standards of medical
care. The Plaintiffs also have not shown that their patients' plans
have a standard definition of medical necessity.
Finally, the remedy the Plaintiffs seek supports the Court's
conclusion that individualized issues of liability would
predominate any common questions that might exist. In Wit, the
trial court reasoned that the plaintiffs satisfied Rule 23(a)'s
commonality requirement, in part, because they did not "ask the
Court to make determinations as to whether class members were
actually entitled to benefits."
The Plaintiffs here are asking for that determination and
resolution of that question would require the Court to consider a
multitude of individualized circumstances relating to the medical
necessity for coverage and the specific terms of the member's plan,
Judge White opines.
Because the Court concludes the Plaintiffs have not satisfied the
commonality and predominance factors, it does not address whether
the Plaintiffs have satisfied the other Rule 23 factors.
Accordingly, the Court denies the Plaintiffs' motion for class
certification. The Court orders the parties to appear for a further
case management conference on March 22, 2024, at 11:00 a.m. The
parties will file an updated joint case management conference
statement by no later than March 15, 2024.
A full-text copy of the Court's Order dated Feb. 12, 2024, is
available at https://tinyurl.com/2uxwhs79 from PacerMonitor.com.
WASTE CONNECTIONS: Rolland Sues Over Labor Law Breaches
-------------------------------------------------------
JALEESA ROLLAND, individually, and on behalf of all others
similarly situated, Plaintiff v. WASTE CONNECTIONS US, INC. a
Delaware corporation; WASTE CONNECTIONS OF CALIFORNIA, INC. a
California corporation; and DOES 1 through 10, inclusive,
Defendants, Case No. 24CV432015 (Cal. Super., Santa Clara Cty.,
February 28, 2024) arises out of the Defendants' violations of the
California Labor Code and the California Business and Professions
Code.
The Plaintiff worked for Defendants in Santa Clara County,
California as an hourly-paid, non-exempt employee from
approximately September 2022, to approximately August 2023.
Throughout Plaintiff's employment, Defendants, at times, failed to
pay for all hours worked (including minimum, straight time, and
overtime wages), failed to provide with legally compliant meal
periods, failed to authorize and permit to take rest periods,
failed to timely pay all final wages when Defendants terminated
Plaintiff's employment, failed to furnish accurate wage statements,
failed to indemnify for expenditures, and failed to produce
requested employment records.
Waste Connections US, Inc. provides solid waste collection,
transfer, disposal, and recycling services. [BN]
The Plaintiff is represented by:
John G. Yslas, Esq.
Jeffrey C. Bils, Esq.
Aram Boyadjian, Esq.
Andrew Sandoval, Esq.
WILSHIRE LAW FIRM
3055 Wilshire Blvd., 12th Floor
Los Angeles, CA 90010
Telephone: (213) 381-9988
Facsimile: (213) 381-9989
E-mail: jyslas@wilshirelawfirm.com
jbils@wilshirelawfirm.com
aboyadjian@wilshirelawfirm.com
andrew.sandoval@wilshirelawfirm.com
WEST TECHNOLOGY: Pulliam Appeals Tort Suit Dismissal to 8th Cir.
----------------------------------------------------------------
MICHELLE PULLIAM, et al. are taking an appeal from a court order
dismissing their lawsuit entitled Michelle Pulliam, et al., on
behalf of themselves and all others similarly situated, Plaintiffs,
v. West Technology Group, LLC, Defendant, Case No.
8:23-cv-00159-BCB, in the U.S. District Court for the District of
Nebraska.
The case arises from the Defendant's failure to protect the
personally identifiable information of the Plaintiffs and similarly
situated individuals following a data breach on its corporate
network.
On Oct. 9, 2023, the Defendant filed a motion to dismiss for
failure to state a claim, which the Court granted through an Order
entered by Judge Brian C. Buescher on Jan. 19, 2024.
The appellate case is captioned Michelle Pulliam, et al. v. West
Technology Group, LLC, Case No. 23-1300, in the United States Court
of Appeals for the Eighth Circuit, filed on February 15, 2024.
The briefing schedule in the Appellate Case states that:
-- Brief of Appellants Marina Mauldin, Nicole Petersen and
Michelle Pulliam are due on March 26, 2024; and
-- Appellee brief is due 30 days from the date the court issues
the Notice of Docket Activity filing the brief of Appellant. [BN]
Plaintiffs-Appellants MICHELLE PULLIAM, et al., on behalf of
themselves and all others similarly situated, are represented by:
Mason A. Barney, Esq.
Tyler James Bean, Esq.
SIRI & GLIMSTAD
Suite 500
745 Fifth Avenue
New York, NY 10151
Telephone: (212) 532-1091
- and -
David K. Lietz, Esq.
MILBERG & COLEMAN
Suite 440
5335 Wisconsin Avenue, N.W.
Washington, DC 20015
Telephone: (866) 252-0878
- and -
Joseph M. Lyon, Esq.
LYON LAW FIRM
2754 Erie Avenue
Cincinnati, OH 45208
Telephone: (513) 381-2333
- and -
Terence Coates, Esq.
MARKOVITS & STOCK
Suite 530
119 E. Court Street
Cincinnati, OH 45202
Telephone: (513) 651-3700
- and -
Gary M. Klinger, Esq.
MILBERG & COLEMAN
Suite 2100
227 W. Monroe Street
Chicago, IL 60606
Telephone: (866) 252-0878
Defendant-Appellee WEST TECHNOLOGY GROUP, LLC is represented by:
Casie D. Collignon, Esq.
BAKER & HOSTETLER
Suite 4400
1801 California Street
Denver, CO 80202
Telephone: (303) 861-0600
WEST VIRGINIA: Court Grants Bid to Compel in Jonathan R. Suit
-------------------------------------------------------------
In the lawsuit captioned JONATHAN R., et al., Plaintiffs v. JIM
JUSTICE, et al., Defendants, Case No. 3:19-cv-00710 (S.D.W. Va.),
Magistrate Judge Cheryl a. Eifert of the U.S. District Court for
the Southern District of West Virginia, Huntington Division, issued
a Memorandum Opinion and Order granting the Plaintiffs' Motion to
Compel.
The Defendants have filed a response in opposition to the Motion,
and the Plaintiffs have filed a reply memorandum. After considering
the Motion, the Court grants same and orders the Defendants to
provide the relevant information within fourteen days of the date
of this Order.
The Plaintiffs seek information pertaining to a high-profile
incident in which children were found last October living in
appalling conditions in Sissonville, West Virginia. As the story
has unfolded in the press, allegations have surfaced that Child
Protective Services ("CPS"), part of the West Virginia Department
of Health and Human Resources ("DHHR"), was called on multiple
occasions--beginning as early as May--by concerned neighbors, who
suspected abuse and neglect.
However, CPS failed to respond and perform an adequate
investigation. As a result, the children were left to suffer at the
hands of their adoptive parents for months, until law enforcement
officers eventually found the children locked in their house or in
a detached shed, deprived of food, water, bathroom facilities,
hygiene products, and beds.
The parents were arrested, and the children were placed in
State custody. They are now part of the General Class in this class
action litigation against the DHHR and other Defendants.
The Defendants have objected to producing the information on the
grounds that the children were not members of the class when the
alleged abuse and neglect occurred, making the information
irrelevant, and that the requested information is not proportional
to the needs of the case because collecting it would be
burdensome.
The Defendants claim the burden on them to obtain the information
would outweigh any minimal relevancy the documents might have to
the claims and defenses in this case. According to the Defendants,
the retrieval of the information would take 25 to 50 hours of staff
and contractor time.
While the Defendants are correct that the children were not members
of the class when the alleged abuse and neglect occurred, one of
the allegations in this case is that the DHHR regularly failed to
protect foster children from physical and mental abuse, Judge
Eifert notes.
In addition, the Plaintiffs claim that DHHR's caseworkers, who are
responsible for the welfare of children in this State, are
understaffed and overworked, resulting in systemic failures,
including slow or nonexistent responses to reports of abuse or
neglect, as well as lack of appropriate follow-up. The Plaintiffs
argue that evidence of incidents, which corroborate their claims,
is key to establishing the Defendants' unconstitutional policies
and practices.
The Court agrees that information regarding the children found in
Sissonville is relevant to show the DHHR's general response to
allegations of abuse and neglect, as well as to establish that
caseworkers are understaffed and overworked. While statistics
showing overall numbers and generalized data that tracks the DHHR's
responses to reports of abuse and neglect of children are helpful
to proving a claim or defense, information regarding individual
cases is also useful.
The Court disagrees that the children must have been in the State's
custody at the time of their abuse and neglect in order for the
information to be relevant, unless the Defendants are claiming that
they apply a different or lesser standard of care to children, who
are not in the State's custody. That does not appear to be a
defense asserted by the Defendants.
Although this litigation centers on foster children, proof of
repeated and widespread failures on the part of the DHHR, as it
carries out its obligation to West Virginia children, can help the
Plaintiffs demonstrate the DHHR's customs and practices, Judge
Eifert opines.
With regard to the Defendants' argument that responding to the
discovery requests is overly burdensome when compared to the
usefulness of the anticipated result, Judge Eifert finds the
Defendants have failed to support that contention with evidence.
Conclusory and unsubstantiated allegations are simply insufficient
to support an objection based on burdensomeness.
Frankly, Judge Eifert says, considering the attention given to the
children's condition, it seems likely that the DHHR has already
collected and analyzed this information, or much of it, in order to
determine whether, or how, the agency failed these children.
The Clerk is directed to provide a copy of this Order to counsel of
record.
A full-text copy of the Court's Memorandum Opinion and Order dated
Feb. 12, 2024, is available at https://tinyurl.com/4hu984sh from
PacerMonitor.com.
WYNDHAM HOTELS: WDI's Bid to Dismiss Amended Cullum Suit Granted
----------------------------------------------------------------
In the lawsuit captioned SANDRA L. CULLUM and DEIRDRE SALEH,
Plaintiffs v. WYNDHAM HOTELS & RESORTS CORP., WYNDHAM DESTINATIONS
INC., MR. GEOFFREY A. BALLOTTI, WYNDHAM HOTELS (WH) & RESORTS,
INC., MS. ELISABETH GALE, DBA WYNDHAM CORPORATE OFFICE &
HEADQUARTERS, BROADRIDGE CORPORATE ISSUER SOLUTIONS, Defendants,
Case No. 1:22-cv-09700-LTS-SN (S.D.N.Y.), Judge Laura Taylor Swain
of the U.S. District Court for the Southern District of New York
grants WDI's motion to dismiss the amended complaint without
prejudice to arbitration of the Plaintiffs' claims in Florida.
Plaintiffs Sandra Cullum and Deirdre Saleh ("Plaintiffs"),
proceeding pro se and putatively on behalf of a class, bring this
action against Defendants Wyndham Destinations, Inc. ("WDI"),
Broadridge Corporate Issuer Solutions ("Broadridge"), Elisabeth
Gale, as well as Wyndham Hotels & Resorts, Inc. ("WHR") and
Geoffrey A. Ballotti ("Mr. Ballotti") (the "WHR Defendants," and
with WDI, Broadridge, and Elisabeth Gale, collectively,
"Defendants"), asserting various federal and state law claims
arising out of a timeshare contact.
Judge Swain notes that WDI proffers that it was renamed Travel +
Leisure Co. on Feb. 17, 2021. The Court will continue to refer to
the Defendant as WDI to avoid confusion and for consistency with
WDI's motion to dismiss. Elisabeth Gale is allegedly an employee of
a WDI subsidiary that is not named as a defendant. Ms. Gale has not
been served and has not made an appearance in this action or
responded to the Amended Complaint. WHR proffers that the
Plaintiffs improperly referred to the entity in its pleadings as
Wyndham Hotels (W.H.) & Resorts, Inc. and Wyndham Hotels & Resorts,
Corp.
The Plaintiffs seek $367,000 in compensatory damages, $15.4 billion
in class relief, and a permanent injunction preventing the
Defendants from "engaging in the unlawful activities and practices
complained of."
The Court notes, at the outset, that the Plaintiffs' extensive
allegations, which refer to the "Defendants" generally, consist
mainly of general allegations of falsehoods and trickery and
assertions that numerous laws and disclosure duties have been
violated. The Plaintiffs allege that the Defendants' actions have
caused substantial harm to elderly citizens, who have fallen victim
to their predatory tactics and suffered significant financial
losses, harassment, and intimidation.
The Court has jurisdiction of certain of the federal claims in this
action pursuant to 28 U.S.C. section 1331. The Court does not
appear to have diversity jurisdiction of the Plaintiffs' state law
claims.
On Jan. 21, 2019, the Plaintiffs attended a timeshare sales
presentation conducted by the Defendants at a Wyndham hotel
property in midtown Manhattan. They allege that they were told that
the presentation would take 90 minutes but it instead lasted three
to six hours or longer. They say the Defendants at Wyndham market
and sell vacation ownership interests in the form of points,
property & other action, provide consumer financing in connection
with the sale of point issues; provide property management &
develop and acquire vacation ownership resorts. Participants
purchase points, which are used as currency to book a stay at
Wyndham resort properties. They further allege that they were
subjected to high-pressure sales employing a tag-team format and
were presented with volumes of documents with little time to review
before signing.
According to attachments in the Amended Complaint reproducing
certain pages of a Retail Installment Contract between the
Plaintiffs and Wyndham Vacation Resorts, the Plaintiffs purchased
Wyndham timeshare interests on Dec. 5, 2019, and also concurrently
took out loans to finance the purchase. The Contract includes
provision requiring disputes to be subject to binding arbitration.
In the period spanning February 2019 to February 2023, the
Plaintiffs were charged $143,201.65 through monthly assessments, at
least some of which they allege to have been unauthorized. Attempts
to contact the Defendants about the foregoing issues via letters or
customer service inquiries were unsuccessful. The Plaintiffs were
told that the "timeshare is an investment opportunity" and that
they could sell their timeshare for a profit. They were also
presented with false or misleading statements about the ability to
rent or resell the timeshare, what they would receive as part of
ownership, the benefits or value of a timeshare purchase, and false
sales data & wrongful information. Judge Swain finds that the
Amended Complaint does not specify the statements it characterizes
as false and misleading, nor does it identify particular speakers
in connection with these allegations.
The Plaintiffs commenced this action by filing their original
Complaint against the Defendants on Nov. 14, 2022. Because the
Original Complaint lacked specific factual support and did not
conform to the pleading requirements of Rule 8 of the Federal Rules
of Civil Procedure by order dated Dec. 20, 2022, Judge Ronnie
Abrams, sua sponte, granted the Plaintiffs leave to file an amended
complaint within 60 days. Judge Abrams also dismissed for lack of
subject matter jurisdiction any claims in which the Plaintiffs seek
the criminal prosecution of any of the Defendants.
The Plaintiffs filed their Amended Complaint on Feb. 8, 2023. In
it, they assert a number of claims under federal and state civil
and criminal law, including 15 U.S.C. section 1601, et seq. (the
"Truth in Lending Act" or " TILA"), 12 U.S.C. section 2601, et seq.
(the "Real Estate Settlement Procedures Act" or "RESPA"), 16 C.F.R.
310 (the "Telemarketing Sales Rule" or "TSR"), the "Elder Justice
and Abuse Prevention Act," 15 U.S.C section 1681, et seq. (the
"Fair Credit Reporting Act" or "FCRA"), 15 U.S.C. section 41, et
seq. (the "Federal Trade Commission Act" or "FTCA"), 18 U.S.C.
section 1961, et seq. ("RICO"), 42 U.S.C. 3601, et seq. (the "Fair
Housing Act"), the Dodd-Frank Wall Street Reform and Consumer
Protection Act (the "Dodd-Frank Act"), federal mail and wire fraud
statutes, New York Executive Law, New York General Business Law
section 352, et seq. (the "Martin Act"), New York Real Property Law
sections 443, 443-a, 462, and common law claims for breach of
contract, fraudulent misrepresentation, negligent
misrepresentation, and fraudulent inducement.
On March 9, 2023, the WHR Defendants filed their motion to dismiss
the Amended Complaint; WDI and Broadridge filed their motions on
April 10, 2023, and April 19, 2023, respectively. In their response
filed on May 25, 2023, the Plaintiffs reasserted some of their
prior claims and also raised new claims for the first time. Judge
Abrams referred this case to Magistrate Judge Sarah Netburn for
general pretrial management purposes on May 30, 2023, and this case
was reassigned to this Court on June 15, 2023. No reply papers have
been filed.
Before the Court are three motions to dismiss (the "Motions to
Dismiss") the Amended Complaint. The WHR Defendants move for
dismissal pursuant to Federal Rule of Civil Procedure 12(b)(2) and,
alternatively, under Federal Rule of Civil Procedure 12(b)(6),
arguing that the Court cannot exercise personal jurisdiction over
them and contending that the Amended Complaint fails to allege
facts plausibly supporting any cause of action pleaded against
them.
Defendant WDI separately moves for dismissal pursuant to the
Federal Arbitration Act ("FAA"), and, alternatively, under Rule
12(b)(6), arguing that the agreement pursuant to which the
Plaintiffs purchased time share points includes a broad arbitration
clause and that the Amended Complaint fails to allege facts
plausibly supporting any cause of action pleaded against WDI and
fails to plead its fraud causes of action with particularity.
Defendant Broadridge moves to dismiss pursuant to Rule 12(b)(6),
also arguing that fraud is not pleaded with particularity and
asserting that no facts are pleaded that plausibly provide support
for any cause of action against Broadridge. For the reasons set
forth in this Memorandum Order and Opinion, WDI's and Broadridge's
motions to dismiss the Amended Complaint as against those
Defendants are granted in their entirety. WHR Defendants' motion to
dismiss the Amended Complaint as against them for lack of personal
jurisdiction is also granted. The Court grants Plaintiffs 30 days'
leave to file a Second Amended Complaint clearly setting forth the
factual basis of their claims against the remaining unserved
Defendant, Elisabeth Gale, should they wish to continue to pursue
claims against her.
As a preliminary matter, the Court must dismiss any claims in which
the Plaintiffs seek the criminal prosecution of any Defendant. The
Plaintiffs cannot bring criminal charges against the Defendants
because the decision to prosecute is solely within the discretion
of the prosecutor. They also cannot direct prosecutors to initiate
a criminal proceeding against any Defendant, because prosecutors
possess discretionary authority to bring criminal actions, and they
are immune from control or interference by citizen or court.
Because the Plaintiffs lack standing to cause the criminal
prosecution of others, to the extent they reassert or allege new
claims seeking criminal prosecution of the Defendants in their
Amended Complaint or Response, the Court dismisses those claims for
lack of subject matter jurisdiction.
For the reasons discussed in its Memorandum Order and Opinion, the
Court rules that WDI's motion to dismiss the Amended Complaint is
granted without prejudice to arbitration of the Plaintiffs' claims
in Florida in accordance with the provisions of the contract
underlying the transactions at issue in this case. The WHR
Defendants' motion to dismiss the Amended Complaint for lack of
personal jurisdiction is granted as to both Mr. Ballotti and WHR.
The Court also dismisses the Plaintiffs' federal law claims against
Broadridge pursuant to Federal Rule of Civil Procedure 12(b)(6),
for failure to state a claim upon which relief may be granted, and
declines to exercise supplemental jurisdiction of any state or
local law claims against Broadridge.
Judge Swain finds that the Plaintiffs have not effected proper
service on Defendant Gale, nor does the Amended Complaint provide
facts that would indicate a basis for the exercise of personal
jurisdiction over Ms. Gale or for any claims for relief against
her. If the Plaintiffs still wish to pursue litigation in the Court
against Ms. Gale, they may file a Second Amended Complaint within
30 days of the date of this Order.
The Second Amended Complaint may only assert claims against Ms.
Gale. In the "Statement of Claim" section of their Second Amended
Complaint, the Plaintiffs must provide a short and plain statement
of the specific facts supporting each claim against Ms. Gale. The
Plaintiffs should include all the information in the amended
complaint that they want the Court to consider, including:
a) a description of all relevant events, including what Ms.
Gale did or failed to do;
b) the approximate date and time of each event, and the
general location where each event occurred;
c) a description of the injuries the Plaintiffs suffered;
d) facts demonstrating that the Court can properly exercise
personal jurisdiction over Ms. Gale here in New York; and
e) the relief the Plaintiffs seek, such as money damages,
injunctive relief, or declaratory relief.
The Plaintiffs are advised that although the Court is obligated to
draw the most favorable inferences that their complaint supports,
the Court cannot invent factual allegations that they have not
pled.
Because the Plaintiffs' Second Amended Complaint will completely
replace, not supplement, the original and First Amended Complaint,
any facts or claims against Ms. Gale that the Plaintiffs want to
include from the original complaint must be repeated in the Second
Amended Complaint.
If the Plaintiffs do not file a Second Amended Complaint clarifying
the basis for their claims against Ms. Gale and the facts on which
they base their contention that she is subject to personal
jurisdiction in this Court within 30 days from the date of this
order, the Court will dismiss the claims against Ms. Gale without
prejudice and close this case. If the Plaintiffs file a Second
Amended Complaint, the Court will evaluate its content for
sufficiency and determine whether a summons will be issued.
This case remains referred to Magistrate Judge Sarah Netburn for
general pretrial management. This Memorandum Opinion and Order
resolves docket entries no. 21, 29, and 33.
The Clerk of Court is directed to (1) terminate Broadridge
Corporate Issuer Solutions, Geoffrey A. Ballotti, Wyndham
Destinations Inc., and Wyndham Hotels & Resorts, Inc. (sued as
"Wyndham Hotels (WH) & Resorts, Inc.," and "Wyndham Corporate
Office & Headquarters") as defendants in this action, and (2) mail
the Plaintiffs copies of this Memorandum Opinion and Order,
together with a form Amended Complaint.
A full-text copy of the Court's Memorandum Order and Opinion dated
Feb. 12, 2024, is available at https://tinyurl.com/43aanxat from
PacerMonitor.com.
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