/raid1/www/Hosts/bankrupt/CAR_Public/240402.mbx
C L A S S A C T I O N R E P O R T E R
Tuesday, April 2, 2024, Vol. 26, No. 67
Headlines
23ANDME INC: Brown Files Suit in N.D. California
ABM AVIATION INC: Williams Suit Removed to C.D. California
AEROTEK INC: Ahlstrom Suit Removed to S.D. California
AF EXPRESS: Fails to Pay Proper Wages, Almander Suit Alleges
ALKALOL COMPANY: Miller Files ADA Suit in W.D. New York
ALLIED WASTE SERVICES: Lopez Suit Removed to E.D. California
ALPHA METALLURGICAL: Tolliver Seeks Coal Miners' Unpaid Overtime
ALTERNATIVE PROTECTIVE: Smith Alleges Labor Code Breaches
ALTITUDE GROUP: Calloway Files FCRA Suit in S.D. Florida
AMAZON INC: Faces Class Suit Over Prime Video Commercial-Free Fees
ANAVEX LIFE: Blum Sues Over False Statements on Clinical Trials
ANTHEM HEALTH PLANS: Prosser TCPA Suit Removed to E.D. Missouri
ANTHONY DECHELLIS: Rossi Suit Removed to N.D. California
APOLLO GLOBAL MANAGEMENT: Quade Sues Over Invalid Terms
ARCHCARE COMMUNITY: Fails to Pay Proper Wages, Bell Alleges
ASR GROUP: Redner's Sues Over Control of Granulated Sugar Prices
AT&T INC: Puts Future Retirement Benefits at Risk, Schloss Alleges
AVID BIOSERVICES: Faces Class Action Suit Over Securities Claims
AXOS BANK: Ash Sues Over High Yielding Saving Account
BELGO HOLDINGS: Wahab Files ADA Suit in S.D. New York
BENCHMARK VA: Fails to Pay Proper Wages, Bargainer Alleges
BLUE IN GREEN: Anderson Files ADA Suit in E.D. New York
BRONSON HEALTH: Fails to Pay Proper Wages, Black Alleges
BUYERS PRODUCTS: Fails to Pay Proper Wages, Barnard Alleges
CANAL SOUND AND LIGHT: Beauchamp Files ADA Suit in S.D. New York
CHEMOCENTRYX INC: FDA Can't Access Confidential Docs in Homyk Suit
COLEMAN DINING: Llewellyn Alleges FLSA Tip Credit Violations
COMMONSPIRIT HEALTH: Fails to Properly Pay Nurses, Sullivan Says
CONTINENTAL AG: Carson et al. Allege Price Fixing Conspiracy
CONTINENTAL AG: May Sues Over Price-Fixing Conspiracy on Tires
CONTINENTAL AKTIENGESELLSCHAFT: Sued Over Conspiracy to Fix Prices
CROSS RIVER BANK: Trivest's Bids to Dismiss in Bowe Suit Granted
CROSS RIVER BANK: Trivest's Bids to Dismiss in Evans Suit Granted
CROSS RIVER BANK: Trivest's Bids to Dismiss in Salazar Suit OK'd
DAVE'S KILLER BREAD: Smothers Suit Removed to N.D. Illinois
DEBORAH PHILLIPS: Jones Suit Removed to D. South Carolina
DELTA DENTAL: Lamons Suit Transferred to D. Massachusetts
DELTA DENTAL: Meeks Suit Transferred to D. Massachusetts
DESALES UNIVERSITY: Keenhol Seeks Refund of Tuition and Fees
DHL EXPRESS USA: Sowemimo Files Suit in Cal. Super. Ct.
DOMINO SUGAR: Faces Class Action Lawsuit Over Price Fixing
DOMINO'S PIZZA: Faces Garcia et al. Suit Over BIPA Violations
DOR L'DOR INC: Erkan Files ADA Suit in E.D. New York
EDGAR P. BENJAMIN HEALTHCARE: Santos Sues Over Unpaid Earned Wages
EDTHEORY LLC: Camarena Sues Over Failure to Pay Minimum Wages
ELHILU SERVICE: Fails to Pay Proper Wages, Alcudia Alleges
ELRAC LLC: Odam Suit Removed to S.D. New York
EMPIRE AUTO PROTECT: Misner Files TCPA Suit in S.D. Ohio
ENTERPRISE LEASING: Brinston Suit Removed to E.D. California
EPIC GAMES INC: S.T.G. Files Suit in S.D. California
EVENT TICKETS: Faces Sellers Suit Over Alleged Hidden Junk Fees
EXECUTIVE GIFT SHOPPE: Wahab Files ADA Suit in S.D. New York
FACEBOOK INC: $37.5MM Class Settlement in Lundy Suit Has Final OK
FALCK NORTHERN CALIFORNIA: Nettles Suit Removed to N.D. California
FIELD SERVICE HOLDINGS: Brown Files Suit in Fla. Cir. Ct.
FIVE STAR BANK: Gurrant, Hoover Sue Over Unlawful Overdraft Fees
FLUXPACE DESIGN: S.D. New York Dismisses Lopez FLSA Class Suit
FOR THE LOVE OF CHICKEN: Payan Sues Over Unpaid Wages
FRESENIUS VASCULAR CARE: Gravley Files Suit in E.D. Pennsylvania
FROEDTERT HEALTH: Bangalore Allowed to File 2nd Amended Complaint
GENERAL MOTORS: Chicco Sues Over Erroneous Negative Driving Info
GLAD PRODUCTS: Woolard Sues Over Misleading Representations
GLADIATOR ENERGY: Sanders Seeks Unpaid Overtime for Supervisors
GOLFTEC MANAGEMENT: Li Suit Removed to N.D. California
GOODYEAR TIRE: Conspires to Control Tire Prices, Price Suit Claims
GRAND CANYON EDUCATION: Evans Files TCPA Suit in D. Arizona
GREATER ORLANDO PROPERTY: Anderson Files Suit in Fla. Cir. Ct.
HEALTHRIGHT 360 FOUNDATION: Evans Files Suit in Cal. Super. Ct.
HEALTHSOURCE GLOBAL: Wins Arbitration Bid; Franklin Suit Tossed
HITACHI RAIL STS: Turgut Suit Removed to D. Massachusetts
HOME DEPOT: Fails to Pay Proper Wages, Bermudez Alleges
HP PELZER: Fails to Pay Proper Wages, Baldwin Suit Says
HUTCHINSON ANTIVIBRATION: Robinson Sues Over Unpaid Overtime
HYUNDAI MOTOR: Russo Sues Over Genesis Sedan's Defective Paint
IKEA US RETAIL: Zhang Sues Over False and Unfair Advertising
INSOMNIA COOKIES: Court Dismisses Lee's Collective & Class Claims
INSURANCE SOLUTIONS: Bond Files TCPA Suit in N.D. Georgia
INTERNATIONAL PAPER: Maldonado Suit Removed to E.D. California
INVESTORPLACE MEDIA: Loses Bid to Dismiss Amended Hill Complaint
J RITTER LAW: Bid for Judgment on Pleadings in Church Suit Denied
JAAV INC: Wahab Files ADA Suit in S.D. New York
JANIE AND JACK: Chong-Vizcarra Files Suit in Cal. Super. Ct.
JC WINE & SPIRITS: Black Files ADA Suit in E.D. New York
JEWISH COMMUNITY SERVICES: Infante Suit Removed to S.D. Florida
JLE INDUSTRIES: Martin Files Suit in W.D. Pennsylvania
JOHN MUIR: Faces Nado Suit Over Mismanagement of 403(b) Plan Funds
KARENA FOODS: Fails to Pay Proper Wages, Castro Suit Alleges
KEN'S FOODS: Fails to Pay Proper Wages, Austin Alleges
KING'S COLLEGE: Delacruz Files ADA Suit in S.D. New York
KYLIE NOFS: Lures People to Fake Coinbit Platform, Shaya Alleges
L'OREAL USA: Mraz Sues Over Benzene's Presence on BPO Products
LATAM AIRLINES: Settlement Reached in AGRECU Suit
LINE FINANCIAL: Baker Files TCPA Suit in S.D. Ohio
LION BRAND YARN: Frost Files ADA Suit in D. Minnesota
LOS ANGELES, CA: Golfers Filed Suit on Black Market in Tee Times
MDL 2724: 3 Generic Meds Price-rigging Suits Remanded to D. Conn.
MDL 2873: Panel Denies Transfer of Hoffnagle v. CWC to D.S.C.
MDL 2873: Suessmann Consolidated in AFFFs Products Liability Row
MDL 2904: Batten Case Consolidated in AMCA Data Security Breach Row
MEDSTREAM ANESTHESIA: Blondeau's Conditional Cert Bid Partly OK'd
MICHIGAN: Court Denies AG's Bid to Intervene in Bowles v. Sabree
MPOWER ENERGY: Rhymes Suit Transferred to S.D. New York
MUFG UNION: Settles Overdraft Class Action Lawsuit for $5-Mil.
NBT BANCORP: Richey Suit Seeks Unpaid Overtime for Bank Tellers
NEXT BRIDGE: Faces Class Action Suit Over Securities Claims
NEXT BRIDGE: Misleads Buyers to Acquire Shares, Targgart Claims
NORTHEAST ORTHOPEDICS: Smith Sues Over Compromised Personal Info
PLUNGE RESTAURANT: Calderon Sues Over Breaches of Labor Code
PPG INDUSTRIES: All Fact Discovery Extended to June 24
R.O.A.D.S. FOUNDATION: Thomas Sues Over Unpaid Wages in California
RHOMBUS SERVICES: Fails to Pay Proper Wages, Adams Alleges
ROCKET COMPANIES: Seeks to File Surreply Portions Under Seal
SAN FRANCISCO FIRE CREDIT: Garves Files Suit in Cal. Super. Ct.
SCHMIDT BAKING: Fails to Pay Proper Wages, Adragna Alleges
SECURITAS SECURITY: Gandy Seeks Security Guards' Unpaid Overtime
SELECT PORTFOLIO: Wins Bid to Dismiss; Horan FDCPA Suit Stayed
STARBUCKS CORPORATION: Faces Bollinger ADA Suit in E.D. California
TECHNOLOGY CREDIT: CTU Dismissed From Genton Consolidated Suit
TECHNOLOGY CREDIT: Ohio Court Dismisses CTU From Chamberlin Suit
TECHNOLOGY CREDIT: Trivest's Bids to Dismiss in Riley Suit Granted
TECHNOLOGY CREDIT: Trivest's Bids to Dismiss in Stenger Suit OK'd
TEXAS: Court Denies Bid for Reconsideration in Thunderhorse Suit
TJ MAXX: Soriano Sues Over Unfair Employment Practices
TRICIDA INC: Court Narrows Claims in Pardi Securities Class Suit
UNITE HERE: Conway Sues Over Unprotected Private Information
UNITED SERVICES: Davidson Seeks Leave to File Documents Under Seal
UNITED SERVICES: Davidson Suit Seeks Rule 23 Class Certification
UNITEDHEALTH GROUP: Fails to Prevent Data Breach, Suit Alleges
US IMMIGRATION: Bid for Leave to File Sur-Reply Sought in Jimenez
US SPECIALTY: Wins Bid for Partial Summary Judgment in Pancake Suit
VALERO SERVICES: Fails to Pay Proper Wages, Arellano Alleges
VERA WHOLE HEALTH: Spencer Suit Removed to W.D. Washington
VERDUGO VISTA: Faces Mancilla Suit Over Labor Code Breaches
VERTIV CORPORATION: Torok Suit Removed to N.D. California
VIRGIN PULSE INC: Elston Suit Transferred to D. Massachusetts
VITAMIN WELL LLC: Miller Files ADA Suit in W.D. New York
WAL-MART STORES: Foster Suit Removed to N.D. Texas
WESTERN REFINING: Borba Suit Removed to E.D. California
ZUVI INC: Reid Files ADA Suit in S.D. New York
[*] Class Suits Filed Over Online Ticket Hidden Fees in New York
[*] Free Webinar on AI, Crypto Class Actions on April 4
[] Free Webinar on AI, Crypto Class Actions This Thursday
*********
23ANDME INC: Brown Files Suit in N.D. California
------------------------------------------------
A class action lawsuit has been filed against 23andMe, Inc. The
case is styled as Tyrell Brown, individually and on behalf of all
others similarly situated v. 23andMe, Inc., Case No.
5:24-cv-01662-SVK (N.D. Cal., March 18, 2024).
The nature of suit is stated as Other Personal Property for
Personal Injury.
23andMe -- https://www.23andme.com/ -- offers DNA testing with the
most comprehensive ancestry breakdown, personalized health insights
and more.[BN]
The Plaintiffs are represented by:
Michael Robert Reese, Esq.
REESE LLP
100 West 93rd Street, 16th Floor
New York, NY 10025
Phone: (212) 643-0500
Email: mreese@reesellp.com
ABM AVIATION INC: Williams Suit Removed to C.D. California
----------------------------------------------------------
The case captioned as Keimyah Williams, on behalf of herself and
others similarly situated v. ABM Aviation, Inc., and DOES 1 to 100,
inclusive, Case No. 23STCV31580 was removed from the Superior Court
of the State of California, County of Los Angeles, to the U.S.
District Court for the Central District of California on March 18,
2024, and assigned Case No. 2:24-cv-02181.
The Plaintiff alleges the following causes of action against
Defendant on behalf of herself and the putative class: Failure to
Pay Minimum/Regular Wages; Failure to Pay State Overtime; Failure
to Comply with Meal Break Laws; Failure to Comply with Rest Break
Laws; Failure to Provide Accurate Wage Statements; Failure to Pay
Wages Timely; and Violation of Cal. Bus. & Prof. Code.[BN]
The Defendants are represented by:
Sean A. O'Brien, Esq.
Laura Fleming, Esq.
Matthew C. Lewis, Esq.
Lukas R. Kramer, Esq.
PAYNE & FEARS LLP
4 Park Plaza, Suite 1100
Irvine, CA 92614
Phone: (949) 851-1100
Facsimile: (949) 851-1212
Email: sao@paynefears.com
lf@paynefears.com
mcl@paynefears.com
lrk@paynefears.com
AEROTEK INC: Ahlstrom Suit Removed to S.D. California
-----------------------------------------------------
The case captioned as Joshua Ahlstrom, Lydell Burston, and Quintin
Baker, individually and on behalf of all others similarly situated
and similarly aggrieved employees v. AEROTEK, INC., SEKISUI
DIAGNOSTICS, LLC, and DOES 1 to 10, inclusive, Case No.
37-2024-00006729-CU-OE-NC was removed from the Superior Court for
the State of California, County of San Diego, to the U.S. District
Court for the Southern District of California on March 15, 2024,
and assigned Case No. 3:24-cv-00507-BEN-SBC.
The Complaint asserts twelve causes of action against Defendants:
Overtime and Double Time Wages; Minimum Wages and Liquidated
Damages; Failure to Pay All Regular Wages; Waiting Time Penalties;
Failure to Reimburse Business Expenses; Rest Periods; Meal Periods;
Itemized Wage Statement (Check Stubs) Penalties; Penalties Under
California Labor Code; Violation of Labor Code; Restitution; and
Penalties Under California Labor Code.[BN]
The Defendants are represented by:
Nicole R Roysdon, Esq.
Sanam Khajenoori, Esq.
WILSON TURNER KOSMO LLP
402 West Broadway, Suite 1600
San Diego, CA 92101
Phone: (619) 236-9600
Facsimile: (619) 236-9669
Email: nroysdon@wilsonturnerkosmo.com
skhajenoori@wilsonturnerkosmo.com
AF EXPRESS: Fails to Pay Proper Wages, Almander Suit Alleges
------------------------------------------------------------
CHRISTIAN ALMADER; CRISTOBAL ALMADER; and JOSUE CENICEROS,
individually and on behalf of all others similarly situated,
Plaintiffs v. AF EXPRESS TRUCKING, LLC; and LUKASZ MAREK,
Defendants, Case No. 1:24-cv-02085 (N.D., Ill., March 12, 2024)
seeks to recover from the Defendants unpaid wages and overtime
compensation, interest, liquidated damages, attorneys' fees, and
costs under the Fair Labor Standards Act.
The Plaintiffs were employed by the Defendants as truck drivers.
AF EXPRESS TRUCKING, LLC provides towing, road side assistance, and
repair services for diesel trucks and other motorized vehicles.
[BN]
The Plaintiff is represented by:
Edward J Rolwes, Esq.
THE ROLWES LAW FIRM, LLC
4818 Washington Blvd
St. Louis, MO 63108
Telephone: (314) 448-0139
Facsimile: (314) 448-0139
Email: erolwes@rolweslaw.com
ALKALOL COMPANY: Miller Files ADA Suit in W.D. New York
-------------------------------------------------------
A class action lawsuit has been filed against Alkalol Company. The
case is styled as Kimberly Miller, on behalf of herself and all
other persons similarly situated v. Alkalol Company, Case No.
1:24-cv-00218 (W.D.N.Y., March 13, 2024).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
The Alkalol Company -- https://www.alkalolcompany.com/ -- is
leading manufacturer and distributor of natural OTC nasal rinse
products.[BN]
The Plaintiff is represented by:
Michael A. LaBollita, Esq.
GOTTFRIED & GOTTFRIED, LLP
122 East 42nd. St., Suite 620
New York, NY 10168
Phone: (212) 228-9795
Email: michael@gottlieb.legal
ALLIED WASTE SERVICES: Lopez Suit Removed to E.D. California
------------------------------------------------------------
The case captioned as Juan Lopez, as an individual and on behalf of
all others similarly situated v. ALLIED WASTE SERVICES OF NORTH
AMERICA, LLC, a Delaware limited liability company; REPUBLIC
SERVICES, INC., a Delaware corporation; and DOES 1 through 100,
inclusive, Case No. STK-CV-UOE-2023-0014268 was removed from the
Superior Court of the State of California, County of San Joaquin,
to the U.S. District Court for the Eastern District of California
on March 15, 2024, and assigned Case No. 2:24-at-00315.
The Complaint asserts the following six cause of action: Failure to
Pay All Minimum Wages Owed Labor Code; Failure to Provide Meal
Periods; Failure to Authorize and Permit All Rest Periods; Failure
to Provide Accurate, Itemized Wage Statements; Failure to Pay All
Wages Owed Upon Termination; and Unfair Competition.[BN]
The Defendants are represented by:
Irene V. Fitzgerald, Esq.
Julie R. Campos, Esq.
LITTLER MENDELSON, P.C.
5200 North Palm Avenue, Suite 302
Fresno, CA 93704.2225
Phone: (559) 244-7500
Fax: (559) 244-7525
Email: ifitzgerald@littler.com
jcampos@littler.com
ALPHA METALLURGICAL: Tolliver Seeks Coal Miners' Unpaid Overtime
----------------------------------------------------------------
ANDREW TOLLIVER, individually and on behalf of all others similarly
situated, Plaintiff v. ALPHA METALLURGICAL RESOURCES, INC., MARFORK
COAL COMPANY, LLC, SPARTAN MINING, LLC, ARACOMA COAL COMPANY, LLC,
and PARAMONT CONTURA, LLC, Defendants, Case No. 2:24-cv-00128 (S.D.
W. Va., March 15, 2024) is a class action against the Defendants
for failure to pay overtime wages in violation of the Fair Labor
Standards Act of 1938.
The Plaintiff worked for the Defendants as a coal miner.
Alpha Metallurgical Resources, Inc. is a mining company based in
Bristol, Tennessee.
Marfork Coal Company, LLC is a coal supplier with its principal
place of business in Whitesville, West Virginia.
Spartan Mining, LLC is a mining company with its principal place of
business in Wyoming, West Virginia.
Aracoma Coal Company, LLC is a coal supplier with its principal
place of business in Holden, West Virginia.
Paramont Contura, LLC is a mining company with its principal place
of business in Norton, Virginia. [BN]
The Plaintiff is represented by:
R. Booth Goodwin II, Esq.
Benjamin B. Ware, Esq.
W. Jeffrey Vollmer, Esq.
Stephanie H. Daly, Esq.
GOODWIN & GOODWIN, LLP
300 Summers Street, Suite 1500
Charleston, WV 25301
Telephone: (304) 346-7000
Facsimile: (304) 346-9692
E-mail: rbg@goodwingoodwin.com
bbw@goodwingoodwin.com
wjv@goodwingoodwin.com
shd@goodwingoodwin.com
ALTERNATIVE PROTECTIVE: Smith Alleges Labor Code Breaches
---------------------------------------------------------
KENDRICK G. SMITH, Plaintiff v. ALTERNATIVE PROTECTIVE SERVICES
INC.; JOHN F. CHAVERRA; CLAUDIA CHAVERRA; and DOES 1 to 25,
inclusive, Defendants, Case No. 24STCV06190 (Cal. Super., Los
Angeles Cty., March 13, 2024) is a class action alleging the
Defendants of violating numerous provisions of the California Labor
Code and the California Business and Professions Code.
Plaintiff Smith started working at Alternative Protective on or
around April 2023 as a security guard. He was classified as an
hourly, non-exempt employee. He is still employed at Alternative
Protective. Among other things, Plaintiff alleges that the
Defendants failed to pay him and other similarly situated aggrieved
employees for all hours worked, including the statutory minimum
wage for all hours worked and for "off the clock" work.
Based in Los Angeles County, California, Alternative Protective
Services, Inc. provides security guard services to its commercial
and residential clients. [BN]
The Plaintiff is represented by:
Harout Messrelian, Esq.
MESSRELIAN LAW INC.
500 N. Central Ave., Suite 840
Glendale, CA 91203
Telephone: (818) 484-6531
Facsimile: (818) 956-1983
E-mail: hm@messrelianlaw.com
ALTITUDE GROUP: Calloway Files FCRA Suit in S.D. Florida
--------------------------------------------------------
A class action lawsuit has been filed against The Altitude Group,
LLC. The case is styled as Kali Calloway, individually and on
behalf of all others similarly situated v. The Altitude Group, LLC
d/b/a Core Home Security, LLC, Case No. 9:24-cv-80290-XXXX (S.D.
Fla., March 13, 2024).
The lawsuit is brought over alleged violation of the Fair Credit
Reporting Act.
The Altitude Group, LLC doing business as Core Home Security --
https://corehomesecurity.com/ -- is the top-rated home security
systems and monitoring company in the nation. Professional free
installation.[BN]
The Plaintiffs are represented by:
Ryan L. McBride, Esq.
KAZEROUNI LAW GROUP, APC
301 E. Bethany Home Road, Ste. C-195
Phoenix, AZ 85012
Phone: (800) 400-6808
Email: ryan@kazlg.com
AMAZON INC: Faces Class Suit Over Prime Video Commercial-Free Fees
------------------------------------------------------------------
Cook County Record reports that Amazon has been hit with a class
action lawsuit, accusing the company of improperly unilaterally
changing the terms of service for its Prime video streaming
service.
The suit alleges that Amazon now requires customers to pay an
additional $3 per month or watch commercials, despite advertising
for years that Prime includes commercial-free internet streaming.
The case was initially filed in Cook County Circuit Court in
February, but was moved to federal court by Amazon on March 21.
The plaintiffs, Michael Milkes and Shari C. White, both identified
as residents of Illinois and subscribers to Prime, claim their
television viewing on Prime was unexpectedly interrupted by
commercials in February. They allege that Amazon did not seek their
consent or that of others similarly situated to change the terms of
Prime.
Both plaintiffs had paid for a full year of Prime before the
changes were announced on Jan. 4.
The lawsuit seeks to expand the case to include all Illinois
residents who purchased one year of Prime prior to Jan. 4. It
argues that Amazon's actions violate the Illinois Consumer Fraud
and Deceptive Business Practices Act.
Plaintiffs are represented by attorney Paul R. Kesselman, of
Wilmette.[GN]
ANAVEX LIFE: Blum Sues Over False Statements on Clinical Trials
---------------------------------------------------------------
JONATHAN BLUM, Individually and on behalf of All Others Similarly
Situated, Plaintiff v. ANAVEX LIFE SCIENCES CORPORATION and
CHRISTOPHER U. MISSLING, Defendants, Case No. 1:24-cv-01910
(S.D.N.Y., March 13, 2024) is a federal securities action on behalf
of the Plaintiff and all persons who purchased or otherwise
acquired Anavex stock between February 1, 2022 and January 1, 2024,
inclusive (the "Class Period"), against Anavex and certain of its
officers and/or directors for violations of the Securities Act of
1934.
Allegedly, Defendants misled investors by providing a materially
flawed and inaccurate impression of the Company's research program
and of blarcamesine's actual likelihood of success in the Rett
syndrome trials. By failing to disclose to investors the adverse
facts, Defendants presented a misleading picture of Anavex's
clinical trial operations. Anavex's false and misleading statements
had the intended effect and caused Anavex stock to trade at
artificially inflated levels throughout the Class Period. When
Defendants' prior misrepresentations and fraudulent conduct were
disclosed and became apparent to the market on January 2, 2024, the
price of Anavex stock fell precipitously. As a result of their
purchases of Anavex stock during the Class Period, Plaintiff and
the other Class Members suffered economic loss, says the suit.
Headquartered in New York, NY, Anavex Life Science Corp.
investigates, manufactures, and markets pharmaceuticals for central
nervous system disorders. Shares of the Anavex's stock trade on the
Nasdaq under the ticker symbol "AVXL." [BN]
The Plaintiff is represented by:
Adam M. Apton, Esq.
LEVI & KORSINSKY, LLP
33 Whitehall Street, 17th Floor
New York, NY 10004
Telephone: (212) 363-7500
Facsimile: (212) 363-7171
ANTHEM HEALTH PLANS: Prosser TCPA Suit Removed to E.D. Missouri
---------------------------------------------------------------
The case styled as Christopher Prosser, individually and on behalf
of all others similarly situated v. Anthem Health Plans of
Virginia, Inc., HMO Missouri, Inc., d/b/a Anthem Blue Cross and
Blue Shield, Does 1-35, Case No. 24JE-CC00101 was removed from the
Circuit Court of Jefferson County, to the U.S. District Court for
the Eastern District of Missouri on March 13, 2024.
The District Court Clerk assigned Case No. 4:24-cv-00386 to the
proceeding.
The lawsuit is brought over alleged violation of the Telephone
Consumer Protection Act for Restrictions of Use of Telephone
Equipment.
Anthem Blue Cross Blue Shield -- https://www.anthem.com/ -- is a
trusted health insurance plan provider.[BN]
The Plaintiff appears pro se.
The Defendant is represented by:
Neal F. Perryman, Esq.
LEWIS RICE LLC - St. Louis
600 Washington Avenue, Suite 2500
St. Louis, MO 63101
Phone: (314) 444-7661
Fax: (314) 612-7661
Email: nperryman@lewisrice.com
ANTHONY DECHELLIS: Rossi Suit Removed to N.D. California
--------------------------------------------------------
The case captioned as Stephen Rossi, individually and on behalf of
all others similarly situated v. ANTHONY DECHELLIS, CHRISTOPHER
COOPER, and MORGAN STANLEY & CO. LLC, Case No. 24CV431200 was
removed from the Superior Court of the State of California, County
of Santa Clara, to the U.S. District Court for the Northern
District of California on March 18, 2024, and assigned Case No.
3:24-cv-01674.
The Complaint alleges that former Boston Private shareholders
received approximately 1.9 million shares of the Security pursuant
to the Offering Materials and that those materials contained false
and misleading statements of material fact, and omitted material
facts that were both required by governing regulations and
necessary to make the statements not misleading in violation of
Sections 11, 12, and 15 of the Securities Act of 1933.[BN]
The Defendants are represented by:
Daniel H.R. Laguardia, Esq.
SHEARMAN & STERLING LLP
140 New Montgomery Street, 10th Floor
San Francisco, CA 94105-2997
Phone: 415.616.1100
Fax: 415.616.1199
Email: daniel.laguardia@shearman.com
- and -
Adam Hakki, Esq.
Daniel Lewis, Esq.
Joshua Ebersole, Esq.
SHEARMAN & STERLING LLP
599 Lexington Avenue
New York, NY 10022
Phone: 212.848.4000
Fax: 212.848.7179
Email: adam.hakki@shearman.com
daniel.lewis@shearman.com
joshua.ebersole@shearman.com
APOLLO GLOBAL MANAGEMENT: Quade Sues Over Invalid Terms
-------------------------------------------------------
Patrick Quade, on behalf of himself and all other similarly
situated common stockholders of APOLLO GLOBAL MANAGEMENT, INC. v.
APOLLO GLOBAL MANAGEMENT, INC., Case No. 2024-0254- (Del. Chancery
Ct., March 14, 2024), is brought seeking a declaratory judgment
from this Court that the terms of the Stockholders Agreement are
invalid and unenforceable under Delaware law.
In recent years, Delaware corporations have implemented what the
Court in Moelis described as a "new wave" of stockholder
agreements. Such "new wave" stockholder agreements contain, among
other things, extensive veto rights and other restrictions on
action by the corporation and its board of directors. However,
these stockholder agreements violate Section 141(a).
On January 1, 2022, Apollo entered into such a stockholders
agreement with its founders and their affiliates, in order to
entrench and perpetuate control in the hands of Apollo's founders
(the "Stockholders Agreement"). Several distinct requirements in
this Stockholders Agreement run afoul of Section 141 and this
Court's aforementioned guidance against constraining the ability of
the board of directors of Apollo (the "Board") to manage a Delaware
company as it sees fit.
Under the Stockholders Agreement, Apollo agreed, among other
things, to "recommend that its stockholders vote in favor of the
Former Managing Partners (or their designees, as applicable)" and
to "otherwise take reasonable action to support their nomination
and election (including by filling vacancies on the Board of
Directors, if necessary)" (hereinafter the "Recommendation
Requirement"). Likewise, Apollo's Board is required to fill any
Board vacancies by recommending that stockholders vote in favor of
the Former managing Partners or their designees (hereinafter the
"Vacancy Requirement").
Apollo also agreed that "each Former Managing Partner (but not his
designee) will be entitled to a seat on the Executive Committee so
long as such Former Managing Partner serves on the Board of
Directors" (hereinafter the "Committee Composition Requirement").
Under the teaching in Moelis, the above provisions of the
Stockholders Agreement all violate Section 141, because these
provisions impermissibly constrain the freedoms of the Board to
manage Apollo in the best interest of the Company and its
stockholders.
The Committee Composition Requirement violates Sections 141(a) and
(c) of the DGCL, because it also removes from Apollo's Board its
discretion to select who should serve on a Board committee.
Finally, the Pre-Approval Requirement, an obligation not to make
any non-pro rata distributions or payments to any "Former Managing
Partner" without first obtaining consent of the other "Former
Managing Partners," is a direct, board level constraint as to a
matter of management entrusted to the Board. In short, confronted
with the "immovable statutory object" of Section 141 of the DGCL,
the Stockholders Agreement must give way, says the complaint.
The Plaintiff owns shares of Apollo's common stock and has held the
stock of Apollo and its predecessor entities since 2019.
Apollo describes itself as a high-growth, global alternative asset
manager and a retirement services provider.[BN]
The Plaintiff is represented by:
Ralph N. Sianni
ANDERSEN SLEATER SIANNI LLC
2 Mill Road, Suite 202
Wilmington, DE 19806
Phone: (302) 510-8528
Email: rsianni@andersensleater.com
- and -
Hung G. Ta, Esq.
JooYun Kim, Esq.
Alex H. Hu, Esq.
Natalia D. Williams, Esq.
HGT LAW
250 Park Avenue, 7th Floor
New York, NY 10177
Phone: (646) 453-7288
ARCHCARE COMMUNITY: Fails to Pay Proper Wages, Bell Alleges
-----------------------------------------------------------
CONSTANCE BELL, individually and on behalf of all others similarly
situated, Plaintiff v. ARCHCARE COMMUNITY SERVICES, INC. d/b/a
ARCHCARE; and CARMEL RICHMOND NURSING HOME, INC., Defendants, Case
No. 1:24-cv-01877 (E.D.N.Y., March 13, 2024) seeks to recover from
the Defendants unpaid wages and overtime compensation, interest,
liquidated damages, attorneys' fees, and costs under the Fair Labor
Standards Act.
Plaintiff Bell was employed by the Defendants as a nursing
assistant.
ARCHCARE COMMUNITY SERVICES, INC. operate nursing homes and provide
nursing care services throughout the State of New York. [BN]
The Plaintiff is represented by:
Brett R. Gallaway, Esq.
Lee S. Shalov, Esq.
Jason S. Giaimo, Esq.
MCLAUGHLIN & STERN, LLP
260 Madison Avenue
New York, NY 10016
Telephone: (212) 448-1100
ASR GROUP: Redner's Sues Over Control of Granulated Sugar Prices
----------------------------------------------------------------
REDNER'S MARKETS, INC., individually and on behalf of all others
similarly situated, Plaintiff v. ASR GROUP INTERNATIONAL, INC.,
AMERICAN SUGAR REFINING, INC., DOMINO FOODS, INC., UNITED SUGAR
PRODUCERS & REFINERS COOPERATIVE F/K/A UNITED SUGARS CORPORATION,
MICHIGAN SUGAR COMPANY, COMMODITY INFORMATION, INC., and RICHARD
WISTISEN, Defendants, Case No. 1:24-cv-01968 (S.D.N.Y., March 15,
2024) is a class action against the Defendants for violation Of
Sections 1 and 3 of the Sherman Act.
The case arises from the Defendants' unlawful agreement to
artificially raise, fix, maintain, or stabilize prices of
granulated sugar throughout the Class Period. The Defendants have
implemented their agreement by sharing accurate, competitively
sensitive, non-public information with one another, including
through Commodity. Commodity provided this reciprocal information
to the Defendants rapidly, often within hours of having received
it. The Defendants then used the information they received from
Commodity when deciding how much to charge for their products.
Redner's Markets, Inc. is a supermarket chain headquartered in
Reading, Pennsylvania.
ASR Group International, Inc. is a global producer and seller of
granulated sugar based in West Palm Beach, Florida.
American Sugar Refining, Inc. is a sugar producer based in West
Palm Beach, Florida.
Domino Foods, Inc. is a marketing and sales subsidiary of ASR Group
in Florida.
United Sugar Producers & Refiners Cooperative, formerly known as
United Sugars Corporation, is a marketing cooperative based in
Edina, Minnesota.
Michigan Sugar Company is a cooperative of sugar beet owners,
headquartered in Bay City, Michigan
Commodity Information, Inc. is corporation based in Orem, Utah.
[BN]
The Plaintiff is represented by:
Gregory S. Asciolla, Esq.
Jonathan S. Crevier, Esq.
DICELLO LEVITT LLP
485 Lexington Avenue, Suite 1001
New York, NY 10017
Telephone: (646) 933-1000
E-mail: gasciolla@dicellolevitt.com
jcrevier@dicellolevitt.com
- and -
Joseph C. Kohn, Esq.
William E. Hoese, Esq.
Douglas A. Abrahams, Esq.
KOHN, SWIFT & GRAF, PC
1600 Market Street, Suite 2500
Philadelphia, PA 19103
Telephone: (215) 238-1700
E-mail: jkohn@kohnswift.com
whoese@kohnswift.com
dabrahams@kohnswift.com
- and -
Joshua H. Grabar, Esq.
GRABAR LAW OFFICE
One Liberty Place
1650 Market Street, Suite 3600
Philadelphia, PA 19103
Telephone: (267) 507-6085
E-mail: jgrabar@grabarlaw.com
AT&T INC: Puts Future Retirement Benefits at Risk, Schloss Alleges
------------------------------------------------------------------
CATHERINE SCHLOSS, PATRICIA TATE-JACKSON, and DARLENE WILSON,
individually and as representatives of a class of participants and
beneficiaries on behalf of the AT&T Pension Benefit Plan,
Plaintiffs v. AT&T INC., AT&T SERVICES, INC., STATE STREET GLOBAL
ADVISORS TRUST CO., DENISE R. SISK, and JOHN DOES 1–5,
Defendants, Case No. 1:24-cv-10656 (D. Mass., March 15, 2024) is a
class action against the Defendants for breach of fiduciary duties
and other violations of the Employee Retirement Income Security Act
of 1974 (ERISA).
According to the complaint, the Defendants breached their fiduciary
duties to the Plaintiffs and similarly situated participants and
beneficiaries on behalf of the AT&T Pension Benefit Plan by
selecting a riskier annuity provider, Athene Annuity and Life
Company and Athene Annuity & Life Assurance Company of New York,
instead of the safest annuity available. By transferring the
Plaintiffs' pension benefits to Athene, the Defendants put AT&T
retirees' and their beneficiaries' future retirement benefits at
substantial risk of default—a risk for which they were not
compensated, and which devalued their pensions. Moreover, the
Defendants breached their fiduciary duties by selecting State
Street as the Plan's independent fiduciary for purposes of the
transaction since the selection was influenced by the companies'
existing corporate relationships rather than an objective and
thorough investigation of alternatives, says the suit.
AT&T Inc. is a telecommunications services provider headquartered
in Dallas, Texas.
AT&T Services, Inc. is a wholly owned subsidiary of AT&T Inc.
State Street Global Advisors Trust Co. is a trust company
headquartered in Boston, Massachusetts. [BN]
The Plaintiffs are represented by:
Robert T. Naumes, Esq.
Christopher Naumes, Esq.
NAUMES LAW GROUP
2 Granite Ave, #425
Milton, MA 02186
Telephone: (617) 227-8444
Facsimile: (617) 696-2437
E-mail: robert@naumeslaw.com
christopher@naumeslaw.com
- and -
Jerome J. Schlichter, Esq.
Sean E. Soyars, Esq.
Kurt C. Struckhoff, Esq.
SCHLICHTER BOGARD LLP
100 South Fourth Street, Suite 1200
St. Louis, MO 63102
Telephone: (314) 621-6115
Facsimile: (314) 621-5934
E-mail: jschlichter@uselaws.com
ssoyars@uselaws.com
kstruckhoff@uselaws.com
AVID BIOSERVICES: Faces Class Action Suit Over Securities Claims
----------------------------------------------------------------
Rosen Law Firm, a global investor rights law firm, announces an
investigation of potential securities claims on behalf of
shareholders of Avid Bioservices, Inc. (NASDAQ: CDMO) resulting
from allegations that Avid Bioservices may have issued materially
misleading business information to the investing public.
SO WHAT: If you purchased Avid Bioservices securities you may be
entitled to compensation without payment of any out of pocket fees
or costs through a contingency fee arrangement. The Rosen Law Firm
is preparing a class action seeking recovery of investor losses.
WHAT TO DO NEXT: To join the prospective class action, go to
https://rosenlegal.com/submit-form/?case_id=23144 or call Phillip
Kim, Esq. toll-free at 866-767-3653 or email case@rosenlegal.com
for information on the class action.
WHAT IS THIS ABOUT: On March 6, 2024, after market hours, Avid
Bioservices filed a current report on Form 8-K with the SEC, in
which it stated that it had "received an acceleration notice (the
"Acceleration Notice") from a holder of its 1.250% Exchangeable
Senior Notes due 2026 (the "2026 Notes"). The Acceleration Notice
stipulates, among other things, that (i) the Company did not remove
the restrictive legend on the 2026 Notes by March 17, 2022 as
required under the indenture governing the 2026 Notes (the "2026
Notes Indenture"), (ii) due to such failure, additional interest
has accrued thereafter at a rate of 0.50% per annum (the
"Additional Interest"), (iii) such Additional Interest has not been
paid by the Company as of the date of the Acceleration Notice,
which constitutes an event of default under the 2026 Notes
Indenture (the "Event of Default"), and (iv) such holder is the
beneficial owner of at least 25% in aggregate principal amount of
the outstanding 2026 Notes and therefore has the right to
accelerate all of the 2026 Notes."
Further, "[a]s a result of such interest payment default and
pursuant to the terms of the 2026 Notes Indenture, such holder
declared 100% of the principal of, and accrued and unpaid interest
on, the 2026 Notes to be due and payable immediately (the
"Acceleration Event"). The accelerated amount, inclusive of
principal and interest due and payable, as of February 29, 2024,
the date of acceleration, was approximately $146.0 million and
accrues interest at 2.75% per annum until paid in full."
As a result, Avid Bioservices announced that "the Company may not
be able to timely file its Quarterly Report on Form 10-Q for the
fiscal quarter ended January 31, 2024, particularly in the event
the Company determines that some or all of the financial statements
included in the Relevant Reports must be restated."
On this news, the price of Avid Bioservices stock fell by $2.69 per
share, or 30.6%, to close at $6.10 per share on March 7, 2024.
WHY ROSEN LAW: We encourage investors to select qualified counsel
with a track record of success in leadership roles. Often, firms
issuing notices do not have comparable experience, resources, or
any meaningful peer recognition. Many of these firms do not
actually litigate securities class actions. Be wise in selecting
counsel. The Rosen Law Firm represents investors throughout the
globe, concentrating its practice in securities class actions and
shareholder derivative litigation. Rosen Law Firm has achieved the
largest ever securities class action settlement against a Chinese
Company. Rosen Law Firm was Ranked No. 1 by ISS Securities Class
Action Services for number of securities class action settlements
in 2017. The firm has been ranked in the top 4 each year since 2013
and has recovered hundreds of millions of dollars for investors. In
2019 alone the firm secured over $438 million for investors. In
2020, founding partner Laurence Rosen was named by law360 as a
Titan of Plaintiffs’ Bar. Many of the firm’s attorneys have
been recognized by Lawdragon and Super Lawyers.
Attorney Advertising. Prior results do not guarantee a similar
outcome.
Contact Information:
Laurence Rosen, Esq.
Phillip Kim, Esq.
The Rosen Law Firm, P.A.
275 Madison Avenue, 40th Floor
New York, NY 10016
Tel: (212) 686-1060
Toll Free: (866) 767-3653
Fax: (212) 202-3827
case@rosenlegal.com
www.rosenlegal.com [GN]
AXOS BANK: Ash Sues Over High Yielding Saving Account
-----------------------------------------------------
KYLE ASH; and MOSHE STEMPEL, individually and on behalf of all
others similarly situated, Plaintiff v. AXOS BANK d/b/a UFB DIRECT,
Defendants, Case No. 8:24-cv-00534 (C.D. Cal., March 13, 2024)
seeks monetary damages, restitution, and equitable relief from the
Defendant's misrepresentations and omissions in connection with its
false marketing of a series of purportedly "high yielding" savings
accounts that did not offer the highest interest rates available in
the market.
According to the complaint, in early 2022, the Defendant began to
aggressively market its high-yield savings accounts through a
classic bait and switch scheme. The scheme was rather straight
forward: The Defendant would introduce a new savings account
program, which it advertised as its "highest yielding" savings
account with a "variable" interest rate.
After signing up new customers, the Defendant would put a cap on
the interest rates on that savings account and then introduce, and
advertise, a new saving account with a similar account name that
offered a higher interest rate and annual percentage yield ("APY")
than the predecessor account, which now offered a capped interest
rate. The Defendant would then advertise the new account as the
"highest yielding" savings account without notifying the existing
or previous accountholders of this change, or the availability of
new accounts with higher interest rates.
A consumer visiting the UFB website would not be able to discern
any difference between the predecessor account(s) and the newer
account due to the marketing of it being the "highest-yielding"
offering. The Plaintiff would not have opened a savings account
with the Defendant, or he would have deposited his savings into a
different high-interest account, potentially into one of UFB's
newer savings accounts, if he knew that (1) the account was not, in
fact, "high yield," or "highest-yielding," says the suit.
AXOS BANK is a full-service bank. The Bank offers savings accounts,
personal and business loans, debit and credit cards, letter of
credit, certificate of deposits, mortgages, and other related
products and services. [BN]
The Plaintiff is represented by:
Jeffrey D. Kaliel, Esq.
KALIEL GOLD PLLC
1100 15th Street NW, 4th Floor
Washington, D.C. 20005
Telephone: (202) 350-4783
Email: jkaliel@kalielgold.com
- and -
Sophia Goren Gold, Esq.
KALIEL GOLD PLLC
950 Gilman Street, Suite 200
Berkeley, CA 94710
Tel: (202) 350-4783
Email: sgold@kalielgold.com
- and -
Scott Edelsberg, Esq.
EDELSBERG LAW, P.A.
1925 Century Park East, Suite 1700
Los Angeles, CA 90067
Telephone: (305) 975-3320
Email: scott@edelsberglaw.com
BELGO HOLDINGS: Wahab Files ADA Suit in S.D. New York
-----------------------------------------------------
A class action lawsuit has been filed against Belgo Holdings, LLC.
The case is styled as Angela Wahab, on behalf of herself and all
others similarly situated v. Belgo Holdings, LLC, Case No.
1:24-cv-01846-JPO (S.D.N.Y., March 12, 2024).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Belgo Holdings, LLC doing business as Wafels & Dinges --
https://wafels.com/ -- is a food truck offering artisan Belgian
waffle catering topped with choice of Dinges (toppings).[BN]
The Plaintiff is represented by:
Mark Rozenberg, Esq.
STEIN SAKS, PLLC
1 University Plaza, Ste. 620
Hackensack, NJ 07601
Phone: (201) 282-6500
Email: mrozenberg@steinsakslegal.com
BENCHMARK VA: Fails to Pay Proper Wages, Bargainer Alleges
----------------------------------------------------------
CHRISTOPHER BARGAINER, individually and on behalf of all others
similarly situated, Plaintiff v. BENCHMARK VA LLC SUBSURFACE
UTILITY SERVICES, Defendants, Case No. 3:24-cv-00181 (E.D. Va.,
March 12, 2024) seeks to recover from the Defendant unpaid wages
and overtime compensation, interest, liquidated damages, attorneys'
fees, and costs under the Fair Labor Standards Act.
Plaintiff Bargainer was employed by the Defendant as a utility
technician.
BENCHMARK VA LLC SUBSURFACE UTILITY SERVICES provides utility
locating services and damage prevention in Virginia, D.C.,
Maryland, North Carolina, South Carolina, and Delaware. [BN]
The Plaintiff is represented by:
Peter Winebrake, Esq.
Mark J. Gottesfeld, Esq.
WINEBRAKE & SANTILLO, LLC
715 Twinning Road, Suite 211
Dresher, PA 19025
Telephone: (215) 884-2491
- and –
Harold L. Lichten, Esq.
Matthew Thompson, Esq.
LICHTEN & LISS-RIORDAN, P.C.
719 Boyslton Street, Suite 2000
Boston, MA 02116
Telephone: (617) 994-5800
BLUE IN GREEN: Anderson Files ADA Suit in E.D. New York
-------------------------------------------------------
A class action lawsuit has been filed against Blue in Green, LLC.
The case is styled as Derrick Anderson, on behalf of himself and
all others similarly situated, v. Blue in Green, LLC, Case No.
1:24-cv-01751-DG-VMS (E.D.N.Y., March 8, 2024).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Blue in Green, LLC -- https://www.blueingreensoho.com/ -- is a
Japanese and American selvedge denim store in NYC.[BN]
The Plaintiff is represented by:
Mars Khaimov, Esq.
14749 71st Ave.
Flushing, NY 11367
Phone: (917) 915-7415
Email: mars@khaimovlaw.com
BRONSON HEALTH: Fails to Pay Proper Wages, Black Alleges
--------------------------------------------------------
DEB BLACK, individually and on behalf of all other similarly
situated, Plaintiff v. BRONSON HEALTH CARE GROUP, INC., Defendant,
Case No. 1:24-cv-00259 (W.D. Mich., March 12, 2024) seeks to
recover from the Defendants unpaid wages and overtime compensation,
interest, liquidated damages, attorneys' fees, and costs under the
Fair Labor Standards Act.
Plaintiff Black was employed by the Defendant as a nurse.
BRONSON HEALTH CARE GROUP, INC. operates as a hospital. The Company
offers angiography, anticoagulation, art therapy, behavioral
health, bereavement, birthing, blood management, bone density,
cancer care, blood management, and critical care services. Bronson
Health Care Group serves customers in Michigan. [BN]
The Plaintiff is represented by:
Seth R. Lesser, Esq.
Christopher M. Timmel, Esq.
Sarah Sears, Esq.
KLAFTER LESSER LLP
Two International Drive, Suite 350
Rye Brook, NY 10573
Telephone: (914) 934-9200
Email: seth@klafterlesser.com
christopher.timmel@klafterlesser.com
- and -
Joseph F. Scott, Esq.
Ryan A. Winters, Esq.
SCOTT & WINTERS LAW FIRM, LLC
Telephone: (216) 912-2221
50 Public Square, Suite 1900
Cleveland, OH 44113
Email: jscott@ohiowagelawyers.com
rwinters@ohiowagelawyers.com
- and -
Kevin M. McDermott II, Esq.
SCOTT & WINTERS LAW FIRM, LLC
Telephone: (216) 912-2221
11925 Pearl Rd., Suite 310
Strongsville, OH 44136
Email: kmcdermott@ohiowagelawyers.com
BUYERS PRODUCTS: Fails to Pay Proper Wages, Barnard Alleges
-----------------------------------------------------------
JEFF BARNARD, individually and on behalf of all others similarly
situated, Plaintiff v. BUYERS PRODUCTS COMPANY, Defendant, Case No.
1:24-cv-00482 (March 14, 2024) seeks to recover from the Defendant
unpaid wages and overtime compensation, interest, liquidated
damages, attorneys' fees, and costs under the Fair Labor Standards
Act.
Plaintiff Barnard was employed by the Defendant as a warehouse
associate.
BUYERS PRODUCTS COMPANY is a manufacturer in the truck industry. It
designs and manufactures truck parts like snowplows, spreaders,
dump inserts, hydraulics, and electronics. [BN]
The Plaintiff is represented by:
Scott D. Perlmuter, Esq.
Kathleen R. Harris, Esq.
TITTLE & PERLMUTER
4106 Bridge Ave.
Cleveland, OH 44113
Telephone: (216) 222-2222
Facsimile: (888) 604-9299
Email: scott@tittlelawfirm.com
katie@tittlelawfirm.com
CANAL SOUND AND LIGHT: Beauchamp Files ADA Suit in S.D. New York
----------------------------------------------------------------
A class action lawsuit has been filed against Canal Sound and
Light, Inc. The case is styled as Kevin Beauchamp, on behalf of
himself and all others similarly situated v. Canal Sound and Light,
Inc., Case No. 1:24-cv-01839 (S.D.N.Y., March 11, 2024).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Canal Sound and Light, Inc. -- https://www.canalsoundlight.com/ --
is a long-standing go-to for professional audio equipment, DJ gear,
club lighting & recording consoles.[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
CHEMOCENTRYX INC: FDA Can't Access Confidential Docs in Homyk Suit
------------------------------------------------------------------
In the lawsuit styled JONNIE HOMYK, et al., Plaintiffs v.
CHEMOCENTRYX, INC., et al., Defendants, Case No. 4:21-cv-03343-JST
(N.D. Cal.), Magistrate Judge Lisa J. Cisneros of the U.S. District
Court for the Northern District of California denies the Lead
Plaintiff's request in the Joint Discovery Letter Brief.
In the parties' Joint Discovery Letter Brief, Lead Plaintiff
Indiana Public Retirement System seeks an order authorizing it to
provide the U.S. Food and Drug Administration (FDA) with deposition
exhibits and testimony marked as confidential pursuant to the
Protective Order governing this case by Defendants ChemoCentryx,
Inc., and Thomas J. Schall, President and CEO of ChemoCentryx.
The Lead Plaintiff contends that this disclosure and use of the
material is necessary to allow the FDA to provide testimony by
affidavit or sworn declaration.
The Court held a hearing on the matter on March 5, 2024. After the
hearing, per the Court's order, the Lead Plaintiff filed a copy of
its subpoena to the FDA and its original request for deposition
testimony under 21 C.F.R. Section 20.1. On March 11, 2024, the Lead
Plaintiff also filed a copy of a "revised" request, dated six days
after the original request, which purportedly reflect
meet-and-confer discussions between counsel for the Lead Plaintiff
and the FDA.
Having read the Joint Discovery Letter Brief submitted by the
parties and carefully considered their arguments and relevant
authority, the Court denies the Lead Plaintiff's request for a
court order allowing it to disclose ChemoCentryx's confidential
documents for the reasons discussed in this Order.
In the Joint Discovery Letter Brief, filed on Jan. 16, 2024, the
Lead Plaintiff asserts that it wants to provide the FDA with
certain deposition exhibits and testimony, which were all
designated as confidential by ChemoCentryx pursuant to the
Protective Order. The material at issue consists of the first 49
exhibits marked at deposition to date, as well as deposition
testimony of: (1) Dr. Richard Glassock, who served as a member of
the Data Monitoring Committee (DMC), a committee empaneled in
connection with the FDA's evaluation of ChemoCentryx's New Drug
Application (NDA) for avacopan; and (2) Dr. Willis Maddrey, a liver
expert retained by ChemoCentryx, who analyzed data from the Phase
III clinical trial set up to evaluate avacopan in connection with
the NDA (the Advocate Trial).
The deposition exhibits generally contain internal ChemoCentryx
communications, as well as communications between ChemoCentryx and
the DMC, regarding results from the Advocate Trial, as well as
avacopan's safety and efficacy.
On Nov. 14, 2023, the Lead Plaintiff served a subpoena on the FDA
for deposition testimony regarding avacopan, the NDA, and the
Advocate Trial. The subpoena is subject to the FDA's Touhy
regulations, which prohibit FDA employees from providing testimony
before any tribunal pertaining to information acquired in the
discharge of their official duties except when the Commissioner (or
an employee designated to act on their behalf) determines that
"such testimony will be in the public interest and will promote the
objectives" of the Federal Food, Drug, and Cosmetic Act, as well as
the mission of the FDA.
The Lead Plaintiff included a cover letter with its subpoena
explaining why it believed that the FDA should produce a witness to
testify pursuant to 21 C.F.R. Section 20.1(c), as well as a copy of
the Amended Consolidated Class Action Complaint, Judge Tigar's
Order Granting in Part and Denying in Part Defendants' Motion to
Dismiss, and the Protective Order.
On Nov. 30, 2023, the FDA responded with its determination that the
Lead Plaintiff's Touhy request did not meet the requirements of 21
C.F.R. Section 20.1(c). The FDA found that the Lead Plaintiff
failed to provide any adequate explanation as to how it is in the
public health interest for FDA employees to cease performing their
official duties to prepare for and provide testimony in a civil
action to which the United States is not a party. In addition, the
FDA noted that the information that you seek from an FDA witness's
testimony is available from other sources. Nevertheless, the FDA
concluded its letter by stating that if agreed upon and authorized,
FDA is amenable to providing testimony by an affidavit or sworn
declaration.
Judge Cisneros notes that each side proffers several arguments as
to whether the Court should interpret the Protective Order to allow
the Lead Plaintiff to disclose the deposition exhibits and
testimony to the FDA. The Protective Order prohibits disclosure of
information or items designated confidential, but the Lead
Plaintiff contends that exceptions to the prohibition established
in Paragraph 7.2 of the Protective Order allow the disclosures that
it seeks to make.
The Lead Plaintiff does not argue that the material at issue does
not constitute information that may be treated as confidential
under Rule 26(c). Nor does the Lead Plaintiff claim that the
material is not "research, development or commercial information"
as enumerated under Rule 26(c)(1).
The Court is unpersuaded by the Lead Plaintiff's contention that
disclosure of documents designated as "confidential" to third-party
witnesses for the purpose of providing written testimony is
analogous to disclosure "during their depositions," pursuant to
Paragraph 7.2(f) of the Protective Order. As the Defendants point
out, disclosure outside of the context of a deposition deprives
them of the opportunity to monitor the use of those documents and
the opportunity to cross-examine a witness regarding those
documents.
Even if the Court were to determine that Paragraph 7.2(f)'s
exception applied to written testimony, Judge Cisneros says the
Lead Plaintiff has not established that disclosure of the
confidential material to the FDA is "reasonably necessary" in this
action. But the Court is not deciding whether the Lead Plaintiff
needs the FDA's testimony. Nor are the Defendants seeking to quash
the FDA subpoena. The Defendants' objections are to the disclosure
of confidential documents they produced in this litigation in a
manner not contemplated by the Protective Order and without their
consent.
Judge Cisneros opines, among other things, that the Lead Plaintiff
offers no explanation as to what the deposition exhibits and
testimony would add above and beyond these documents, which would
allow the Lead Plaintiff to obtain "meaningful testimony" from the
FDA. Judge Cisneros adds that allowing non-parties to dictate when
information designated as confidential pursuant to a protective
order is disclosed would undermine the effectiveness of that
protective order and would discourage the free flow and exchange of
discovery in civil litigation.
The Defendants argue that disclosure of their confidential
documents to the FDA to obtain the agency's written testimony
should not be permitted because the testimony would be
inadmissible, and because it is irrelevant to the securities class
action case the Lead Plaintiff has filed against the Defendants.
The Court rejects the Defendants' admissibility arguments outright
because relevant information need not be admissible to be
discoverable. More importantly, the Court is not being asked to
determine the admissibility or even the relevance of any FDA
written testimony. The question before the Court is much narrower:
should the Court issue an order permitting the Lead Plaintiff to
disclose deposition exhibits and testimony designated as
confidential by the Defendants to the FDA?
The Lead Plaintiff has failed to demonstrate that such an order is
consistent with what the parties agreed to in the Protective Order,
Judge Cisneros points out.
For these reasons, the Court denies the Lead Plaintiff's request in
the Joint Discovery Letter Brief for a court order allowing it to
share with the FDA any material designated by the Defendants as
"confidential" under the Protective Order governing this case.
A full-text copy of the Court's Order dated March 11, 2024, is
available at https://tinyurl.com/2tzjzanm from PacerMonitor.com.
COLEMAN DINING: Llewellyn Alleges FLSA Tip Credit Violations
------------------------------------------------------------
ELIZABETH A. LLEWELLYN, Individually and Behalf all Others
Similarly Situated, Plaintiff v. COLEMAN DINING GROUP INC, D.B.A.
COLEMAN PUBLIC HOUSE AND BRIAN TANNER, Defendants, Case No.
2:24-cv-01226-DCN (D.S.C., March 13, 2024) seeks all available
relief for Defendants' violations of the Fair Labor Standards Act,
the South Carolina Payment of Wages Act, and the Internal Revenue
Code.
The Defendants employed Plaintiff as a server from March 7, 2021,
to July 10, 2023. They paid Plaintiff, and other similarly situated
servers less than the statutory minimum of $7.25 wage by taking the
tip credit under the FLSA. Allegedly, the Defendants violated the
tip credit by not fully distributing the tips it collected from the
tip pool.
CDG Inc. operates two restaurants: Coleman Public House in Mount
Pleasant, SC and Maybank Public House in Charleston, SC. [BN]
The Plaintiff is represented by:
Marybeth Mullaney, Esq.
4900 O'Hear Ave, Suites 100 & 200
North Charleston, SC 29405
Telephone: (843) 588-5587
E-mail: marybeth@mullaneylaw.net
COMMONSPIRIT HEALTH: Fails to Properly Pay Nurses, Sullivan Says
----------------------------------------------------------------
DEBRA SULLIVAN, individually and on behalf of all others similarly
situated, Plaintiff v. COMMONSPIRIT HEALTH, Defendant, Case No.
1:24-cv-02188 (N.D. Ill., March 15, 2024) is a class action against
the Defendant for its failure to pay overtime wages in violation of
the Fair Labor Standards Act of 1938 and for unjust enrichment.
The Plaintiff was employed by the Defendant as an hourly nurse in
labor and delivery from approximately November 2020 to August
2021.
CommonSpirit Health is an operator of hospitals and care centers,
with its principal place of business in Chicago, Illinois. [BN]
The Plaintiff is represented by:
Douglas M. Werman, Esq.
Maureen A. Salas, Esq.
WERMAN SALAS PC
77 W. Washington St., Suite 1402
Chicago, IL 60602
Telephone: (312) 419-1008
E-mail: dwerman@flsalaw.com
msalas@flsalaw.com
- and -
Seth R. Lesser, Esq.
Christopher M. Timmel, Esq.
Sarah Sears, Esq.
KLAFTER LESSER LLP
Two International Drive, Suite 350
Rye Brook, NY 10573
Telephone: (914) 934-9200
E-mail: seth@klafterlesser.com
christopher.timmel@klafterlesser.com
sarah.sears@klafterlesser.com
- and -
Joseph F. Scott, Esq.
Ryan A. Winters, Esq.
SCOTT & WINTERS LAW FIRM, LLC
50 Public Square, Suite 1900
Cleveland, OH 44113
Telephone: (216) 912-2221
E-mail: jscott@ohiowagelawyers.com
rwinters@ohiowagelawyers.com
- and -
Kevin M. McDermott II, Esq.
SCOTT & WINTERS LAW FIRM, LLC
11925 Pearl Rd., Suite 310
Strongsville, OH 44136
Telephone: (216) 912-2221
E-mail: kmcdermott@ohiowagelawyers.com
CONTINENTAL AG: Carson et al. Allege Price Fixing Conspiracy
------------------------------------------------------------
MICHAEL CARSON, ROBERT F. BUCHNER, and ROBERT A. BOWDOIN, on behalf
of themselves and all others similarly situated, Plaintiffs v.
CONTINENTAL AKTIENGESELLSCHAFT; CONTINENTAL TIRE THE AMERICAS, LLC;
COMPAGNIE GÉNÉRALE DES ÉTABLISSEMENTS MICHELIN SCA; COMPAGNIE
FINANCIÈRE MICHELIN SA; MICHELIN NORTH AMERICA, INC.; NOKIAN TYRES
PLC; NOKIAN TYRES INC; NOKIAN TYRES U.S. OPERATIONS LLC; THE
GOODYEAR TIRE & RUBBER COMPANY; PIRELLI & C. S.P.A.; PIRELLI TIRE
LLC; BRIDGESTONE CORPORATION; BRIDGESTONE AMERICAS, INC.; and DOES
1-100, Defendants, Case No. 5:24-cv-00475 (N.D. Ohio, March 13,
2024) arises from the alleged unlawful agreements between
Defendants--some of the largest tire manufacturers in the United
States and the world--to artificially increase and fix the prices
of, and to restrict the supply of, new replacement tires for
passenger cars, vans, trucks, and buses sold in the United States.
Allegedly, Defendants effectuated their price fixing conspiracy by,
among other means, signaling price increases via public
communications and other public statements, coordinated lock-step
price increases, and implementing revenue management software to
facilitate and exchange pricing information. As a direct result of
Defendants' conspiracy, Plaintiffs and members of the Class
purchased tires from Defendants at artificially inflated prices and
were thereby directly injured in their business or property.
Accordingly, Plaintiffs seek to represent a Class of natural
persons and entities that purchased tires directly from Defendants
at supracompetitive prices to recover treble damages, injunctive
relief, and other relief as is appropriate, based on Defendants'
violation of federal antitrust laws, says the suit.
Headquartered in Hannover, Germany, Continental AG manufactures and
sells tires for cars, trucks, buses, two-wheel, and specialty
segments. The company has extensive operations throughout the
United States, either directly or through its wholly-owned and
controlled subsidiaries and affiliates. [BN]
The Plaintiffs are represented by:
Juan Jose Perez, Esq.
Kevin L. Murch, Esq.
PEREZ & MORRIS LLC
445 Hutchinson Avenue, Ste. 600
Columbus, OH 43235
Telephone: (614) 431-1500
Facsimile: (614) 431-3885
E-mail: jperez@perez-morris.com
kmurch@perez-morris.com
- and -
Joseph H. Meltzer, Esq.
Ethan Barlieb, Esq.
KESSLER TOPAZ MELTZER & CHECK, LLP
280 King of Prussia Road
Radnor, PA 19087
Telephone: (610) 667-7706
Facsimile: (610) 667-7056
E-mail: jmeltzer@ktmc.com
ebarlieb@ktmc.com
CONTINENTAL AG: May Sues Over Price-Fixing Conspiracy on Tires
--------------------------------------------------------------
TRACEY MAY, on behalf of herself and all others similarly situated,
Plaintiff v. CONTINENTAL AKTIENGESELLSCHAFT; CONTINENTAL TIRE THE
AMERICAS, LLC; COMPAGNIE GÉNÉRALE DES ÉTABLISSEMENTS; 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-00476 (N.D. Ohio, March 13, 2023) accuses the Defendants of
violating Section 1 of the Sherman Act and various state antitrust
and consumer protection laws.
Plaintiff May alleges that the Defendants have entered into and
engaged in a continuing combination, conspiracy or agreement to
unreasonably restrain trade or commerce by artificially restraining
competition with respect to the price of new replacement tires for
passenger cars, vans, trucks and buses sold within the United
States, with the purpose and effect of raising prices.
Headquartered in Hannover, Germany, Continental AG is multinational
automotive parts manufacturing company that also manufactures and
distributes a complete line of passenger, light truck and
commercial tires for both the original equipment and replacement
markets. [BN]
The Plaintiff is represented by:
Raymond J. Marvar, Esq.
THE MARVAR LAW FIRM, LLC
623 West Saint Clair Avenue Cleveland, OH 44113
Telephone: (216) 687-1212
Facsimile: (216) 621-2951
E-mail: rjmarvar@gmail.com
- and -
Tina Wolfson, Esq.
Theodore W. Maya, Esq.
AHDOOT & WOLFSON, PC
2600 West Olive Ave., Suite 500
Burbank, CA 91505
Telephone: (310) 474-9111
Facsimile: (310) 474-8585
E-mail: twolfson@ahdootwolfson.com
tmaya@ahdootwolfson.com
CONTINENTAL AKTIENGESELLSCHAFT: Sued Over Conspiracy to Fix Prices
------------------------------------------------------------------
Steven Slayman, on behalf of himself and all others similarly
situated v. CONTINENTAL AKTIENGESELLSCHAFT; CONTINENTAL TIRE THE
AMERICAS, LLC; COMPAGNIE GENERALE DES ETABLISSEMENTS MICHELIN SCA;
COMPAGNIE FINANCIERE MICHELIN SA; MICHELIN NORTH AMERICA, INC.;
NOKIAN TYRES PLC; NOKIAN TYRES INC.; NOKIAN TYRES U.S. OPERATIONS
LLC; THE GOODYEAR TIRE & RUBBER COMPANY; PIRELLI & C. S.P.A.;
PIRELLI TIRE LLC; BRIDGESTONE CORPORATION; BRIDGESTONE AMERICAS,
INC.; AND DOES 1-100, Case No. 1:24-cv-01930 (S.D.N.Y., March 14,
2024), is brought seeking injunctive relief, treble damages, costs,
attorneys' fees, and other just relief for Defendants' per se
violations of Sections 1 and 3 of the Sherman Act as a result of
the Defendants' conspiracy to fix prices.
Beginning no later than January 1, 2020, and continuing until the
effects of their anticompetitive conduct have ceased (the "Class
Period"), Defendants contracted, combined and/or conspired to fix,
raise, maintain or stabilize prices for new replacement tires for
passenger cars, vans, trucks and buses (collectively, "Tires") sold
in the United States.
The Defendants control nearly two-thirds of the global and U.S.
markets for Tires, generating billions of dollars in sales
annually. The Defendants' conspiracy to fix prices for Tires was
motivated by a sharp decrease in demand for Tires during the
COVID-19 pandemic. The Defendants effectuated their price fixing
conspiracy by, among other means, signaling price increases during
earnings calls and other public statements, implementing revenue
management software to facilitate and exchange pricing information,
participating in annual industry meetings and coordinating supply
reductions to keep prices artificially high.
The European Commission ("EC") is currently investigating
Defendants' conspiracy. On January 30, 2024, the EC announced dawn
raids at the premises of "companies active in the tyres industry in
several Member States." The EC justified its dawn raids over
suspicion that these companies "violated EU antitrust rules that
prohibit cartels and restrictive business practices," and further
announced that it suspected Defendants engaged in illegal price
coordination.
As a direct result of Defendants' conspiracy, Plaintiff and the
Class purchased Tires from Defendants at artificially inflated
prices and were thereby directly injured in their business or
property, says the complaint.
The Plaintiff purchased Tires directly from Defendants during the
Class Period.
The Defendants are the largest tire manufacturers in the world and
generate billions of dollars in sales annually.[BN]
The Plaintiff is represented by:
Kevin Landau, Esq.
Archana Tamoshunas, Esq.
Evan Rosin, Esq.
TAUS, CEBULASH & LANDAU, LLP
123 William Street, Suite 1900A
New York, NY 10038
Phone: (212) 931-0704
Email: klandau@tcllaw.com
atamoshunas@tcllaw.com
erosin@tcllaw.com
- and -
M. Stephen Dampier, Esq.
THE DAMPIER LAW GROUP, P.C.
11 N. Water St., 10th FL.
Mobile, AL 36602
Phone: (251) 929-0900
Email: stevedampier@dampierlaw.com
- and -
Moira Cain-Mannix, Esq.
Brian C. Hill, Esq.
Brian W. Castello, Esq.
MARCUS & SHAPIRA LLP
One Oxford Centre, 35th Floor
301 Grant Street
Pittsburgh, PA 15219-6401
Phone: (412) 471-3490
Email: cain-mannix@marcus-shapira.com
hill@marcus-shapira.com
CROSS RIVER BANK: Trivest's Bids to Dismiss in Bowe Suit Granted
----------------------------------------------------------------
Chief Judge Algenon L. Marbley of the U.S. District Court for the
Southern District of Ohio, Eastern Division, grants Defendant
Trivest Partners, L.P.'s motions to dismiss in the lawsuit entitled
GREGORY BOWE, et al., Plaintiffs v. CROSS RIVER BANK, et al.,
Defendants, Case No. 2:22-cv-04266-ALM-EPD (S.D. Ohio)
(consolidated with 1:22-cv-00723; 2:22-cv-04314; 2:22-cv-04315;
1:22-cv-00721; 2:22-cv-04318; 3:22-cv-04310).
This case Bowe, et al. v. Cross River Bank, et al., Case No.
2:22-cv-04266, is consolidated with Evans, et al. v. Cross River
Bank, et al., Case No. 1:22-cv-00723; Salazar, et al. v. Cross
River Bank, et al., Case No. 2:22-cv-04314; Riley, et al. v.
Technology Credit Union, et al., Case No. 2:22-cv-04315; Stenger,
et al. v. Technology Credit Union, et al., Case No. 1:22-cv-00721;
Chamberlin, et al. v. Technology Credit Union, et al., Case No.
2:22-cv-04318; and Genton, et al. v. Technology Credit Union, et
al., Case No. 2:22-cv-04310.
These matters are before the Court: Defendant Trivest Partners,
L.P.'s Motion to Dismiss; Defendant Jayson Waller's Motion to
Dismiss; Defendant Sunlight Financial, LLC's Motion to Compel
Arbitration and Dismiss; Defendant Cross River Bank's Motion for
Joinder in Defendant Sunlight, Financial LLC's Motion to Compel
Arbitration and Dismiss Complaint; and Plaintiffs' Motion for
Discovery. These motions and matters from the other cases are also
before the Court.
For all practical purposes, Judge Marbley notes that the motions
are nearly identical. The Court, thus, considers each set of
motions as consolidated motions and, as applicable, will reference
the motions outlined in Bowe, et al. v. Cross River Bank, et al.,
Case No. 2:22-cv-04266. Since Technology Credit Union is not a
party in Bowe, however, the Court will, as applicable, reference
Technology Credit Union's motions outlined in Riley, et al. v.
Technology Credit Union, et al., Case No. 2:22-cv-04315.
For the reasons set in this Opinion & Order, the Court grants
Defendant Trivest Partners, L.P.'s Motions to Dismiss; Defendant
Jayson Waller's Motions to Dismiss; and Defendant Cross River
Bank's and Defendant Technology Credit Union's Motions for Joinder
in Defendant Sunlight Financial, LLC's Motions to Compel
Arbitration and Dismiss.
Additionally, the Court severs all claims against Sunlight
Financial, LLC, from this action. As a result, the Court grants in
part Defendant Sunlight Financial, LLC's Motions to Compel
Arbitration and Dismiss, such that the motions are granted as to
Defendant Cross River Bank and Defendant Technology Credit Union
but stayed Defendant Sunlight Financial, LLC's Motions to Compel
Arbitration and Dismiss as to Defendant Sunlight. Finally, the
Court denies the Plaintiffs' Motions for Discovery.
As the Court is granting Cross River's and TCU's motions to join
Sunlight's motions to compel arbitration, the Court treats
Sunlight's motions to compel arbitration as being brought by each
of the three Defendants. Hence, this Opinion & Order reflects that
the motions to compel arbitration are partially granted and
partially stayed.
The complaints filed by the Plaintiffs in each of these seven cases
are substantially similar, as are the facts and allegations
contained therein. As such, the Court issued an order consolidating
the cases sua sponte. The Court, thus, recites the common facts of
the case as the Plaintiffs allege them across the consolidated
cases, specifying the facts on a party-specific basis where
necessary.
The consolidated cases stem from a purported business operation
that allegedly used false promises, deceptive advertisement, and
pressured sales tactics to sell customers overpriced and defective
residential solar panel systems. The Plaintiffs are Gregory and
Rebekah Bowe (Case No. 2:22-cv-04266, "Bowe"); Deanna and
Christopher Evans (Case No. 1:22-cv-00723, "Evans"); Stephen and
Mallori Salazar (Case No. 2:22-cv-04314, "Salazar"); John and Mary
Riley (Case No. 2:22-cv-04315, "Riley"); Bree-Ann and Brian Stenger
(Case No. 1:22-cv-00721, "Stenger"); Thomas and Amanda Chamberlin
(Case No. 2:22-cv-04318, "Chamberlin"); and Nathan and Tiffany
Genton (Case No. 2:22-cv-04310, "Genton").
The Bowe, Evans, and Salazar Plaintiffs sued Defendants Cross River
Bank ("Cross River"), Sunlight Financial, LLC ("Sunlight"), Jayson
Waller ("Waller"), and Trivest Partners, L.P. ("Trivest"). The
Riley, Stenger, Chamberlin, and Genton Plaintiffs also sued
Sunlight, Waller, and Trivest, but sued Defendant Technology Credit
Union ("TCU") rather than Cross River.
To provide context on the Defendants, Cross River and TCU are
credit unions who, along with Sunlight, provided loans to the
Plaintiffs for the purchase of the solar panel system from the now
defunct solar panel company, Power Home Solar, LLC (d/b/a Pink
Energy) ("Pink Energy"). Trivest is a private equity company that
invested in Pink Energy. Waller was a corporate officer of Pink
Energy. The Plaintiffs allege Trivest and/or Waller worked with
Pink Energy to solicit, sell, install, and maintain solar power
energy systems designed for residential use. The Plaintiffs also
allege Cross River and TCU acted by and through Sunlight to provide
financing to the Plaintiffs in the purchase of the Pink Energy
solar panel system.
In 2018, Trivest, through Waller, purchased a 25% ownership
interest in Pink Energy and became involved in the day-to-day
operation of Pink Energy. On Oct. 7, 2022, Pink Energy filed for
bankruptcy and, as such, has not been added as a party to these
lawsuits. The Plaintiffs, however, refer to the Defendants
collectively as the "Pink Energy Group" through their complaints.
Before turning to the procedural history in these consolidated
cases, the Court considers the procedural history of a related case
that began close in time. On Nov. 13, 2022, the plaintiffs in Hall,
et al. v. Trivest Partners L.P., et al. (Case No. 4:22-cv-12743)
("Hall") filed a nationwide class action lawsuit in the U.S.
District Court for the Eastern District of Michigan. The Hall
complaint arose from the same purported business operation that
allegedly used false promises, deceptive advertisement, and
pressured sales tactics to sell customers Pink Energy's overpriced
and defective home solar panel systems.
The three defendants in Hall are Trivest, Waller, and TGIF Power
Home Investor, LLC (later known as Pink Energy). The plaintiffs in
Hall allege three causes of action: Racketeer Influenced and
Corrupt Organizations Act ("RICO"), in violation of 18 U.S.C.
Sections 1962(a) and (c); Conspiracy to Violate RICO, in violation
of 18 U.S.C. Section 1962(d); and violations of the Michigan
Consumer Protections Act.
The putative class in Hall, which the court has not yet certified,
includes: "[a]ll persons in the United States who purchased a home
solar system from Power Home Solar, LLC (including d/b/a/ Pink
Energy) at any time since January 1, 2018."
The Plaintiffs filed their complaints in these consolidated cases
on Dec. 7, 2022, approximately one month after the complaint in
Hall was filed. The Plaintiffs' complaints bring forth 13 claims
against the Defendants, which include Breach of Contract (against
all Defendants), Fraudulent Misrepresentation (against all
Defendants), and Negligent Misrepresentation (against all
Defendants).
After the Plaintiffs filed their complaints, Trivest and Waller
filed Motions to Dismiss in all cases; Sunlight filed Motions to
Compel Arbitration and Dismiss in all cases; Cross River filed
Motions to Join Sunlight's Motions to Compel Arbitration and
Dismiss in Bowe, Evans, and Salazar; TCU filed Motions to Join
Sunlight's Motions to Compel Arbitration and Dismiss in Riley,
Stenger, Chamberlin, and Genton; and Plaintiffs filed Motions for
Discovery in all cases requesting to conduct limited discovery on
whether the arbitration provision at issue is enforceable.
The Plaintiffs filed responses in opposition to the various motions
to dismiss and motions to compel arbitration. The Plaintiffs,
however, did not oppose Cross River's or TCU's motions to join
Sunlight's motions. The Defendants filed responses in opposition to
the Plaintiffs' motions for limited discovery. The Court notes,
however, that on Nov. 3, 2023, Sunlight filed notice with the Court
that Sunlight Financial Holdings, Inc., and its debtor affiliates,
including Sunlight, commenced bankruptcy proceedings on Oct. 30,
2023.
A. Trivest's Motions to Dismiss
The Court first considers Trivest's motions to dismiss, which argue
that Trivest should be dismissed from this consolidated lawsuit
because the first to file rule applies, the Court lacks personal
jurisdiction over Trivest, and the Plaintiffs fail to state a claim
against Trivest.
Trivest argues Hall was filed before these consolidated cases were
filed and the resolution of Hall could resolve these consolidated
cases. The Plaintiffs respond that the first-to-file rule is
inapplicable here because Hall concerns substantially different
claims and parties from these consolidated cases.
First, the Court finds Hall predates these consolidated cases.
Second, when evaluating the similarity of the parties involved, the
Court finds the parties involved do not substantially overlap.
While the definition of the putative class in Hall is broad enough
to include the Plaintiffs and Hall defendants include Trivest and
Waller, Hall does not include Defendants Sunlight, Cross River, and
TCU, who are parties in these consolidated cases. Third, when
evaluating the similarity of the issues or claims at stake, the
Court finds the cases do not substantially overlap.
While Hall concerns the same scheme to defraud customers in
purchasing faulty residential solar panel systems from Pink Energy,
none of the 13 causes of action in these consolidated cases is pled
in Hall, Judge Marbley points out. Rather, Hall alleges RICO
violations and violations of the Michigan Consumer Sales Practices
Act. Since the actions do not raise the same claims arising under
the same laws, this factor weighs against application of the
first-to-file rule.
Overall, when evaluating the three factors of the first-to-file
rule, the Court does not find it appropriate to dismiss or stay
these consolidated cases based on Hall. Accordingly, Trivest's
motions to dismiss based on the first-to-file rule are denied.
While the Court refrains from a sweeping generalization that a
minority share and day-to-day operational involvement can never be
enough to establish specific jurisdiction, the Court finds the
Plaintiffs' allegations insufficient. For this reason, Trivest's
motions to dismiss are granted.
Despite finding the Court lacks personal jurisdiction over Trivest,
Judge Marbley analyzed Trivest's motion to dismiss for failure to
state a claim. The Court finds that the Plaintiffs fail to state a
valid claim against Trivest.
B. Waller's Motions to Dismiss
The Court next turns to Waller's motions to dismiss, which argue
Waller should be dismissed from this lawsuit because the Plaintiffs
fail to establish his personal liability and fail to adequately
plead their fraud and negligence-based claims against him.
Mr. Waller argues that he should be dismissed from this lawsuit
because the Plaintiffs never allege that he was directly involved
in the events that caused their injuries and, even if they had, he
is not personally liable for Pink Energy's actions because he was a
mere corporate officer. The Plaintiffs respond that they adequately
pled Waller's liability because they allege he was intimately
involved in the day-to-day operations of Pink Energy, designed and
taught the sales tactics that were used to defraud the Plaintiffs,
and had control over Pink Energy.
The Court finds the Plaintiffs fail to make any allegations which,
if proven, would render Waller personally liable for their alleged
injuries. Most of the Plaintiffs' allegations are directed at the
"Pink Energy Group" rather than Waller specifically. The specific
allegations against Waller are limited, among other things, to the
following: Waller was "intimately involved in designing,
implementing, and teaching the fraudulent sales practices employed
by Pink Energy's Agents/Employees."
Judge Marbley finds these allegations against Waller pertain to his
level of influence over Pink Energy's day-to-day operations and
tactics. None of them suggests that Waller himself interacted with
the Plaintiffs, or even that he directed the sales personnel, who
visited the Plaintiffs at their homes to utilize the hard-sell
tactics that he allegedly developed. Further, the Plaintiffs make
no allegations indicating Waller exercised complete or
near-complete dominion over Pink Energy to the extent that Pink
Energy lacked any effective autonomy.
In short, Judge Marbley says, there are no allegations that Pink
Energy is indistinguishable from Waller himself. As such, the Court
finds the Plaintiffs fail to plead Waller's personal liability. For
that reason, Waller's motions to dismiss are granted.
The Court also finds that the Plaintiffs fail to state valid
fraud-based claims against Waller, and fail to state a valid claim
for negligent retention/hiring and training. The Court adds that
the economic loss rule bars the Plaintiffs' negligence claim
against Waller.
C. Sunlight's Motions to Compel Arbitration and Dismiss,
Cross River's and TCU's Motions for Joinder in
Sunlight's Motion, and Plaintiffs' Motions for Discovery
On Oct. 30, 2023, Sunlight initiated bankruptcy proceedings. Since
Sunlight is a defendant in these consolidated cases, there is no
question that these lawsuits are "against the debtor." The
automatic stay applies to Sunlight and, therefore, the Court finds
it cannot issue an opinion on Sunlight's Motions to Compel
Arbitration and Dismiss at this time.
The Court finds Defendant Sunlight is not a required party since a
resolution of the claims against Sunlight would not resolve the
Plaintiffs' claims against the other Defendants. Put differently,
Judge Marbley explains each of the claims for relief sought by the
Plaintiffs could be effectively enforced against the other
Defendants without the need for Sunlight.
Therefore, the Court finds it promotes judicial efficiency to sever
all claims against Defendant Sunlight from these consolidated cases
and stay Sunlight's Motions to Compel Arbitration and Dismiss.
The Court next turns to Cross River's and TCU's Motions for Joinder
in Sunlight's Motions to Compel Arbitration and Dismiss. Since
Cross River and TCU are parties to the same Loan Agreements between
the Plaintiffs and Sunlight, the Court grants Cross River's and
TCU's Motions for Joinder in Sunlight's Motions to Compel
Arbitration and Dismiss.
Accordingly, the Court addresses the motions to compel arbitration
and dismiss as if Cross River and TCU were standing in Sunlight's
shoes.
In the motions to compel arbitration and dismiss, the parties
debate the enforceability of the Arbitration Provision contained in
the Loan Agreements that the Plaintiffs signed. Cross River/TCU
argue that the Plaintiffs entered into a valid arbitration
agreement and their claims against them are subject to arbitration.
The Plaintiffs respond that the Arbitration Provision in the Loan
Agreement should be voided because it was borne of fraud and is
unconscionable.
While the Plaintiffs provided an affidavit from counsel stating
they need depositions of sales personnel and corporate
representatives to gather information about Pink Energy's sales
practices and training, the Court finds the Plaintiffs have not
shown why they need such discovery to justify its position. In
fact, the Plaintiffs responded to Sunlight's motions before filing
their motions for discovery, and they detail in their responses in
opposition to Sunlight's motions how the sales in these cases were
conducted. Accordingly, the Plaintiffs' Motions for Discovery is
denied.
Judge Marbley notes that the Arbitration Provision specifically
states that any disputes about the validity, enforceability,
coverage, or scope of the Arbitration Provision are for the court
and not the arbitrator to decide, while disputes about the validity
or enforceability of the Note (i.e. Loan Agreement) is for the
arbitrator and not the court to decide. Accordingly, the Court
finds it has the authority to resolve the parties' disputes
surrounding the Arbitration Provision itself, but not the Loan
Agreement as a whole.
Judge Marbley finds that all of the Plaintiffs' allegations against
Cross River and TCU meet the definition of "claim" within the
Arbitration Provision since they all relate to the marketing, sale,
purchase, and installation of their solar panel system. Therefore,
the Court finds all of the Plaintiffs' claims against Cross River
and TCU are subject to arbitration.
The Plaintiffs argue the Arbitration Provision is procedurally
unconscionable because they were rushed to sign it without being
told about it. Judge Marbley points out that there is no evidence
before the Court, though, that they were too young, lacked
education, intelligence, and/or business acumen and experience,
and/or had such unequal bargaining power as to render the
Arbitration Provision procedurally unconscionable. Rather, the
evidence shows the Plaintiffs voluntarily signed the Loan Agreement
immediately below and above acknowledgments stating that they
agreed to the Arbitration Provision limiting their ability to
litigate any future dispute.
While the Plaintiffs may have felt they were rushed to sign the
agreements because they did not want to miss out on the sales
promotions, there is no evidence before the Court that they were
not given an opportunity to read the contracts and provisions
therein. Accordingly, the Court finds the Arbitration Provision is
not procedurally or substantively unconscionable.
Having found that the Plaintiffs' claims are subject to arbitration
and the Arbitration Provision is not unconscionable, the Court last
determines whether it should dismiss the claims against Cross River
and TCU as requested or enter a stay of the action. When all claims
fall under the scope of an arbitration agreement, Judge Marbley
explains that a court is to direct the parties to proceed to
arbitration and dismiss the claims, without prejudice and subject
to reinstatement, if necessary, so no further action is required of
the court, except to enter judgment.
Since the Court found all claims against Cross River and TCU fall
under the scope of the arbitration provision, the Court finds it
appropriate to dismiss, rather than stay, the Plaintiffs' claims
against Cross River and TCU. Accordingly, Cross River's and TCU's
Motions to Compel Arbitration and Dismiss are granted.
For the reasons set forth in this Opinion & Order, the Court grants
Defendant Trivest Partners, L.P.'s Motions to Dismiss; Defendant
Jayson Waller's Motions to Dismiss; and Defendant Cross River
Bank's and Defendant Technology Credit Union's Motions for Joinder
in Defendant Sunlight Financial, LLC's Motions to Compel
Arbitration and Dismiss. Additionally, the Court severs all claims
against Sunlight Financial, LLC from this action.
As a result, the Court grants in part Defendant Sunlight Financial,
LLC's Motions to Compel Arbitration and Dismiss, such that the
motions are granted as to Defendant Cross River Bank and Defendant
Technology Credit Union but stayed Defendant Sunlight Financial,
LLC's Motions to Compel Arbitration and Dismiss as to Defendant
Sunlight. Finally, the Court denies the Plaintiffs' Motions for
Discovery.
Based on the Court's rulings, the claims against Defendants Trivest
Partners, L.P., and Jayson Waller are dismissed in all cases. The
claims against Defendant Cross River Bank are dismissed in Bowe,
Evans, and Salazar, and the claims against Defendant Technology
Credit Union are dismissed in Riley, Stenger, Chamberlin, and
Genton.
The Plaintiffs are ordered to submit their claims against Defendant
Cross River Bank and Defendant Technology Credit Union to
arbitration according to the terms of the Loan Agreements.
A full-text copy of the Court's Opinion & Order dated March 11,
2024, is available at https://tinyurl.com/447kt4e8 from
PacerMonitor.com.
CROSS RIVER BANK: Trivest's Bids to Dismiss in Evans Suit Granted
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Chief Judge Algenon L. Marbley of the U.S. District Court for the
Southern District of Ohio, Eastern Division, grants Defendant
Trivest Partners, L.P.'s motions to dismiss in the lawsuit
captioned Evans, et al., Plaintiffs v. Cross River Bank, et al.,
Defendants, Case No. 1:22-cv-00723-ALM-EPD (S.D. Ohio).
The case Bowe, et al. v. Cross River Bank, et al., Case No.
2:22-cv-04266, is consolidated with Evans, et al. v. Cross River
Bank, et al., Case No. 1:22-cv-00723; Salazar, et al. v. Cross
River Bank, et al., Case No. 2:22-cv-04314; Riley, et al. v.
Technology Credit Union, et al., Case No. 2:22-cv-04315; Stenger,
et al. v. Technology Credit Union, et al., Case No. 1:22-cv-00721;
Chamberlin, et al. v. Technology Credit Union, et al., Case No.
2:22-cv-04318; and Genton, et al. v. Technology Credit Union, et
al., Case No. 2:22-cv-04310.
These matters are before the Court: Defendant Trivest Partners,
L.P.'s Motion to Dismiss; Defendant Jayson Waller's Motion to
Dismiss; Defendant Sunlight Financial, LLC's Motion to Compel
Arbitration and Dismiss; Defendant Cross River Bank's Motion for
Joinder in Defendant Sunlight, Financial LLC's Motion to Compel
Arbitration and Dismiss Complaint; and Plaintiffs' Motion for
Discovery. These motions and matters from the other cases are also
before the Court.
For all practical purposes, Judge Marbley notes that the motions
are nearly identical. The Court, thus, considers each set of
motions as consolidated motions and, as applicable, will reference
the motions outlined in Bowe, et al. v. Cross River Bank, et al.,
Case No. 2:22-cv-04266. Since Technology Credit Union is not a
party in Bowe, however, the Court will, as applicable, reference
Technology Credit Union's motions outlined in Riley, et al. v.
Technology Credit Union, et al., Case No. 2:22-cv-04315.
For the reasons set in this Opinion & Order, the Court grants
Defendant Trivest Partners, L.P.'s Motions to Dismiss; Defendant
Jayson Waller's Motions to Dismiss; and Defendant Cross River
Bank's and Defendant Technology Credit Union's Motions for Joinder
in Defendant Sunlight Financial, LLC's Motions to Compel
Arbitration and Dismiss.
Additionally, the Court severs all claims against Sunlight
Financial, LLC, from this action. As a result, the Court grants in
part Defendant Sunlight Financial, LLC's Motions to Compel
Arbitration and Dismiss, such that the motions are granted as to
Defendant Cross River Bank and Defendant Technology Credit Union
but stayed Defendant Sunlight Financial, LLC's Motions to Compel
Arbitration and Dismiss as to Defendant Sunlight. Finally, the
Court denies the Plaintiffs' Motions for Discovery.
As the Court is granting Cross River's and TCU's motions to join
Sunlight's motions to compel arbitration, the Court treats
Sunlight's motions to compel arbitration as being brought by each
of the three Defendants. Hence, this Opinion & Order reflects that
the motions to compel arbitration are partially granted and
partially stayed.
The complaints filed by the Plaintiffs in each of these seven cases
are substantially similar, as are the facts and allegations
contained therein. As such, the Court issued an order consolidating
the cases sua sponte. The Court, thus, recites the common facts of
the case as the Plaintiffs allege them across the consolidated
cases, specifying the facts on a party-specific basis where
necessary.
The consolidated cases stem from a purported business operation
that allegedly used false promises, deceptive advertisement, and
pressured sales tactics to sell customers overpriced and defective
residential solar panel systems. The Plaintiffs are Gregory and
Rebekah Bowe (Case No. 2:22-cv-04266, "Bowe"); Deanna and
Christopher Evans (Case No. 1:22-cv-00723, "Evans"); Stephen and
Mallori Salazar (Case No. 2:22-cv-04314, "Salazar"); John and Mary
Riley (Case No. 2:22-cv-04315, "Riley"); Bree-Ann and Brian Stenger
(Case No. 1:22-cv-00721, "Stenger"); Thomas and Amanda Chamberlin
(Case No. 2:22-cv-04318, "Chamberlin"); and Nathan and Tiffany
Genton (Case No. 2:22-cv-04310, "Genton").
The Bowe, Evans, and Salazar Plaintiffs sued Defendants Cross River
Bank ("Cross River"), Sunlight Financial, LLC ("Sunlight"), Jayson
Waller ("Waller"), and Trivest Partners, L.P. ("Trivest"). The
Riley, Stenger, Chamberlin, and Genton Plaintiffs also sued
Sunlight, Waller, and Trivest, but sued Defendant Technology Credit
Union ("TCU") rather than Cross River.
To provide context on the Defendants, Cross River and TCU are
credit unions who, along with Sunlight, provided loans to the
Plaintiffs for the purchase of the solar panel system from the now
defunct solar panel company, Power Home Solar, LLC (d/b/a Pink
Energy) ("Pink Energy"). Trivest is a private equity company that
invested in Pink Energy. Waller was a corporate officer of Pink
Energy. The Plaintiffs allege Trivest and/or Waller worked with
Pink Energy to solicit, sell, install, and maintain solar power
energy systems designed for residential use. The Plaintiffs also
allege Cross River and TCU acted by and through Sunlight to provide
financing to the Plaintiffs in the purchase of the Pink Energy
solar panel system.
In 2018, Trivest, through Waller, purchased a 25% ownership
interest in Pink Energy and became involved in the day-to-day
operation of Pink Energy. On Oct. 7, 2022, Pink Energy filed for
bankruptcy and, as such, has not been added as a party to these
lawsuits. The Plaintiffs, however, refer to the Defendants
collectively as the "Pink Energy Group" through their complaints.
Before turning to the procedural history in these consolidated
cases, the Court considers the procedural history of a related case
that began close in time. On Nov. 13, 2022, the plaintiffs in Hall,
et al. v. Trivest Partners L.P., et al. (Case No. 4:22-cv-12743)
("Hall") filed a nationwide class action lawsuit in the U.S.
District Court for the Eastern District of Michigan. The Hall
complaint arose from the same purported business operation that
allegedly used false promises, deceptive advertisement, and
pressured sales tactics to sell customers Pink Energy's overpriced
and defective home solar panel systems.
The three defendants in Hall are Trivest, Waller, and TGIF Power
Home Investor, LLC (later known as Pink Energy). The plaintiffs in
Hall allege three causes of action: Racketeer Influenced and
Corrupt Organizations Act ("RICO"), in violation of 18 U.S.C.
Sections 1962(a) and (c); Conspiracy to Violate RICO, in violation
of 18 U.S.C. Section 1962(d); and violations of the Michigan
Consumer Protections Act.
The putative class in Hall, which the court has not yet certified,
includes: "[a]ll persons in the United States who purchased a home
solar system from Power Home Solar, LLC (including d/b/a/ Pink
Energy) at any time since January 1, 2018."
The Plaintiffs filed their complaints in these consolidated cases
on Dec. 7, 2022, approximately one month after the complaint in
Hall was filed. The Plaintiffs' complaints bring forth 13 claims
against the Defendants, which include Breach of Contract (against
all Defendants), Fraudulent Misrepresentation (against all
Defendants), and Negligent Misrepresentation (against all
Defendants).
After the Plaintiffs filed their complaints, Trivest and Waller
filed Motions to Dismiss in all cases; Sunlight filed Motions to
Compel Arbitration and Dismiss in all cases; Cross River filed
Motions to Join Sunlight's Motions to Compel Arbitration and
Dismiss in Bowe, Evans, and Salazar; TCU filed Motions to Join
Sunlight's Motions to Compel Arbitration and Dismiss in Riley,
Stenger, Chamberlin, and Genton; and Plaintiffs filed Motions for
Discovery in all cases requesting to conduct limited discovery on
whether the arbitration provision at issue is enforceable.
The Plaintiffs filed responses in opposition to the various motions
to dismiss and motions to compel arbitration. The Plaintiffs,
however, did not oppose Cross River's or TCU's motions to join
Sunlight's motions. The Defendants filed responses in opposition to
the Plaintiffs' motions for limited discovery. The Court notes,
however, that on Nov. 3, 2023, Sunlight filed notice with the Court
that Sunlight Financial Holdings, Inc., and its debtor affiliates,
including Sunlight, commenced bankruptcy proceedings on Oct. 30,
2023.
A. Trivest's Motions to Dismiss
The Court first considers Trivest's motions to dismiss, which argue
that Trivest should be dismissed from this consolidated lawsuit
because the first to file rule applies, the Court lacks personal
jurisdiction over Trivest, and the Plaintiffs fail to state a claim
against Trivest.
Trivest argues Hall was filed before these consolidated cases were
filed and the resolution of Hall could resolve these consolidated
cases. The Plaintiffs respond that the first-to-file rule is
inapplicable here because Hall concerns substantially different
claims and parties from these consolidated cases.
First, the Court finds Hall predates these consolidated cases.
Second, when evaluating the similarity of the parties involved, the
Court finds the parties involved do not substantially overlap.
While the definition of the putative class in Hall is broad enough
to include the Plaintiffs and Hall defendants include Trivest and
Waller, Hall does not include Defendants Sunlight, Cross River, and
TCU, who are parties in these consolidated cases. Third, when
evaluating the similarity of the issues or claims at stake, the
Court finds the cases do not substantially overlap.
While Hall concerns the same scheme to defraud customers in
purchasing faulty residential solar panel systems from Pink Energy,
none of the 13 causes of action in these consolidated cases is pled
in Hall, Judge Marbley points out. Rather, Hall alleges RICO
violations and violations of the Michigan Consumer Sales Practices
Act. Since the actions do not raise the same claims arising under
the same laws, this factor weighs against application of the
first-to-file rule.
Overall, when evaluating the three factors of the first-to-file
rule, the Court does not find it appropriate to dismiss or stay
these consolidated cases based on Hall. Accordingly, Trivest's
motions to dismiss based on the first-to-file rule are denied.
While the Court refrains from a sweeping generalization that a
minority share and day-to-day operational involvement can never be
enough to establish specific jurisdiction, the Court finds the
Plaintiffs' allegations insufficient. For this reason, Trivest's
motions to dismiss are granted.
Despite finding the Court lacks personal jurisdiction over Trivest,
Judge Marbley analyzed Trivest's motion to dismiss for failure to
state a claim. The Court finds that the Plaintiffs fail to state a
valid claim against Trivest.
B. Waller's Motions to Dismiss
The Court next turns to Waller's motions to dismiss, which argue
Waller should be dismissed from this lawsuit because the Plaintiffs
fail to establish his personal liability and fail to adequately
plead their fraud and negligence-based claims against him.
Mr. Waller argues that he should be dismissed from this lawsuit
because the Plaintiffs never allege that he was directly involved
in the events that caused their injuries and, even if they had, he
is not personally liable for Pink Energy's actions because he was a
mere corporate officer. The Plaintiffs respond that they adequately
pled Waller's liability because they allege he was intimately
involved in the day-to-day operations of Pink Energy, designed and
taught the sales tactics that were used to defraud the Plaintiffs,
and had control over Pink Energy.
The Court finds the Plaintiffs fail to make any allegations which,
if proven, would render Waller personally liable for their alleged
injuries. Most of the Plaintiffs' allegations are directed at the
"Pink Energy Group" rather than Waller specifically. The specific
allegations against Waller are limited, among other things, to the
following: Waller was "intimately involved in designing,
implementing, and teaching the fraudulent sales practices employed
by Pink Energy's Agents/Employees."
Judge Marbley finds these allegations against Waller pertain to his
level of influence over Pink Energy's day-to-day operations and
tactics. None of them suggests that Waller himself interacted with
the Plaintiffs, or even that he directed the sales personnel, who
visited the Plaintiffs at their homes to utilize the hard-sell
tactics that he allegedly developed. Further, the Plaintiffs make
no allegations indicating Waller exercised complete or
near-complete dominion over Pink Energy to the extent that Pink
Energy lacked any effective autonomy.
In short, Judge Marbley says, there are no allegations that Pink
Energy is indistinguishable from Waller himself. As such, the Court
finds the Plaintiffs fail to plead Waller's personal liability. For
that reason, Waller's motions to dismiss are granted.
The Court also finds that the Plaintiffs fail to state valid
fraud-based claims against Waller, and fail to state a valid claim
for negligent retention/hiring and training. The Court adds that
the economic loss rule bars the Plaintiffs' negligence claim
against Waller.
C. Sunlight's Motions to Compel Arbitration and Dismiss,
Cross River's and TCU's Motions for Joinder in
Sunlight's Motion, and Plaintiffs' Motions for Discovery
On Oct. 30, 2023, Sunlight initiated bankruptcy proceedings. Since
Sunlight is a defendant in these consolidated cases, there is no
question that these lawsuits are "against the debtor." The
automatic stay applies to Sunlight and, therefore, the Court finds
it cannot issue an opinion on Sunlight's Motions to Compel
Arbitration and Dismiss at this time.
The Court finds Defendant Sunlight is not a required party since a
resolution of the claims against Sunlight would not resolve the
Plaintiffs' claims against the other Defendants. Put differently,
Judge Marbley explains each of the claims for relief sought by the
Plaintiffs could be effectively enforced against the other
Defendants without the need for Sunlight.
Therefore, the Court finds it promotes judicial efficiency to sever
all claims against Defendant Sunlight from these consolidated cases
and stay Sunlight's Motions to Compel Arbitration and Dismiss.
The Court next turns to Cross River's and TCU's Motions for Joinder
in Sunlight's Motions to Compel Arbitration and Dismiss. Since
Cross River and TCU are parties to the same Loan Agreements between
the Plaintiffs and Sunlight, the Court grants Cross River's and
TCU's Motions for Joinder in Sunlight's Motions to Compel
Arbitration and Dismiss.
Accordingly, the Court addresses the motions to compel arbitration
and dismiss as if Cross River and TCU were standing in Sunlight's
shoes.
In the motions to compel arbitration and dismiss, the parties
debate the enforceability of the Arbitration Provision contained in
the Loan Agreements that the Plaintiffs signed. Cross River/TCU
argue that the Plaintiffs entered into a valid arbitration
agreement and their claims against them are subject to arbitration.
The Plaintiffs respond that the Arbitration Provision in the Loan
Agreement should be voided because it was borne of fraud and is
unconscionable.
While the Plaintiffs provided an affidavit from counsel stating
they need depositions of sales personnel and corporate
representatives to gather information about Pink Energy's sales
practices and training, the Court finds the Plaintiffs have not
shown why they need such discovery to justify its position. In
fact, the Plaintiffs responded to Sunlight's motions before filing
their motions for discovery, and they detail in their responses in
opposition to Sunlight's motions how the sales in these cases were
conducted. Accordingly, the Plaintiffs' Motions for Discovery is
denied.
Judge Marbley notes that the Arbitration Provision specifically
states that any disputes about the validity, enforceability,
coverage, or scope of the Arbitration Provision are for the court
and not the arbitrator to decide, while disputes about the validity
or enforceability of the Note (i.e. Loan Agreement) is for the
arbitrator and not the court to decide. Accordingly, the Court
finds it has the authority to resolve the parties' disputes
surrounding the Arbitration Provision itself, but not the Loan
Agreement as a whole.
Judge Marbley finds that all of the Plaintiffs' allegations against
Cross River and TCU meet the definition of "claim" within the
Arbitration Provision since they all relate to the marketing, sale,
purchase, and installation of their solar panel system. Therefore,
the Court finds all of the Plaintiffs' claims against Cross River
and TCU are subject to arbitration.
The Plaintiffs argue the Arbitration Provision is procedurally
unconscionable because they were rushed to sign it without being
told about it. Judge Marbley points out that there is no evidence
before the Court, though, that they were too young, lacked
education, intelligence, and/or business acumen and experience,
and/or had such unequal bargaining power as to render the
Arbitration Provision procedurally unconscionable. Rather, the
evidence shows the Plaintiffs voluntarily signed the Loan Agreement
immediately below and above acknowledgments stating that they
agreed to the Arbitration Provision limiting their ability to
litigate any future dispute.
While the Plaintiffs may have felt they were rushed to sign the
agreements because they did not want to miss out on the sales
promotions, there is no evidence before the Court that they were
not given an opportunity to read the contracts and provisions
therein. Accordingly, the Court finds the Arbitration Provision is
not procedurally or substantively unconscionable.
Having found that the Plaintiffs' claims are subject to arbitration
and the Arbitration Provision is not unconscionable, the Court last
determines whether it should dismiss the claims against Cross River
and TCU as requested or enter a stay of the action. When all claims
fall under the scope of an arbitration agreement, Judge Marbley
explains that a court is to direct the parties to proceed to
arbitration and dismiss the claims, without prejudice and subject
to reinstatement, if necessary, so no further action is required of
the court, except to enter judgment.
Since the Court found all claims against Cross River and TCU fall
under the scope of the arbitration provision, the Court finds it
appropriate to dismiss, rather than stay, the Plaintiffs' claims
against Cross River and TCU. Accordingly, Cross River's and TCU's
Motions to Compel Arbitration and Dismiss are granted.
For the reasons set forth in this Opinion & Order, the Court grants
Defendant Trivest Partners, L.P.'s Motions to Dismiss; Defendant
Jayson Waller's Motions to Dismiss; and Defendant Cross River
Bank's and Defendant Technology Credit Union's Motions for Joinder
in Defendant Sunlight Financial, LLC's Motions to Compel
Arbitration and Dismiss. Additionally, the Court severs all claims
against Sunlight Financial, LLC from this action.
As a result, the Court grants in part Defendant Sunlight Financial,
LLC's Motions to Compel Arbitration and Dismiss, such that the
motions are granted as to Defendant Cross River Bank and Defendant
Technology Credit Union but stayed Defendant Sunlight Financial,
LLC's Motions to Compel Arbitration and Dismiss as to Defendant
Sunlight. Finally, the Court denies the Plaintiffs' Motions for
Discovery.
Based on the Court's rulings, the claims against Defendants Trivest
Partners, L.P., and Jayson Waller are dismissed in all cases. The
claims against Defendant Cross River Bank are dismissed in Bowe,
Evans, and Salazar, and the claims against Defendant Technology
Credit Union are dismissed in Riley, Stenger, Chamberlin, and
Genton.
The Plaintiffs are ordered to submit their claims against Defendant
Cross River Bank and Defendant Technology Credit Union to
arbitration according to the terms of the Loan Agreements.
A full-text copy of the Court's Opinion & Order dated March 11,
2024, is available at https://tinyurl.com/2zd7hhbd from
PacerMonitor.com.
CROSS RIVER BANK: Trivest's Bids to Dismiss in Salazar Suit OK'd
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Chief Judge Algenon L. Marbley of the U.S. District Court for the
Southern District of Ohio, Eastern Division, grants Defendant
Trivest Partners, L.P.'s motions to dismiss in the lawsuit styled
Salazar, et al., Plaintiffs v. Cross River Bank, et al.,
Defendants, Case No. 2:22-cv-04314-ALM-EPD (S.D. Ohio).
The case Bowe, et al. v. Cross River Bank, et al., Case No.
2:22-cv-04266, is consolidated with Evans, et al. v. Cross River
Bank, et al., Case No. 1:22-cv-00723; Salazar, et al. v. Cross
River Bank, et al., Case No. 2:22-cv-04314; Riley, et al. v.
Technology Credit Union, et al., Case No. 2:22-cv-04315; Stenger,
et al. v. Technology Credit Union, et al., Case No. 1:22-cv-00721;
Chamberlin, et al. v. Technology Credit Union, et al., Case No.
2:22-cv-04318; and Genton, et al. v. Technology Credit Union, et
al., Case No. 2:22-cv-04310.
These matters are before the Court: Defendant Trivest Partners,
L.P.'s Motion to Dismiss; Defendant Jayson Waller's Motion to
Dismiss; Defendant Sunlight Financial, LLC's Motion to Compel
Arbitration and Dismiss; Defendant Cross River Bank's Motion for
Joinder in Defendant Sunlight, Financial LLC's Motion to Compel
Arbitration and Dismiss Complaint; and Plaintiffs' Motion for
Discovery. These motions and matters from the other cases are also
before the Court.
For all practical purposes, Judge Marbley notes that the motions
are nearly identical. The Court, thus, considers each set of
motions as consolidated motions and, as applicable, will reference
the motions outlined in Bowe, et al. v. Cross River Bank, et al.,
Case No. 2:22-cv-04266. Since Technology Credit Union is not a
party in Bowe, however, the Court will, as applicable, reference
Technology Credit Union's motions outlined in Riley, et al. v.
Technology Credit Union, et al., Case No. 2:22-cv-04315.
For the reasons set in this Opinion & Order, the Court grants
Defendant Trivest Partners, L.P.'s Motions to Dismiss; Defendant
Jayson Waller's Motions to Dismiss; and Defendant Cross River
Bank's and Defendant Technology Credit Union's Motions for Joinder
in Defendant Sunlight Financial, LLC's Motions to Compel
Arbitration and Dismiss.
Additionally, the Court severs all claims against Sunlight
Financial, LLC, from this action. As a result, the Court grants in
part Defendant Sunlight Financial, LLC's Motions to Compel
Arbitration and Dismiss, such that the motions are granted as to
Defendant Cross River Bank and Defendant Technology Credit Union
but stayed Defendant Sunlight Financial, LLC's Motions to Compel
Arbitration and Dismiss as to Defendant Sunlight. Finally, the
Court denies the Plaintiffs' Motions for Discovery.
As the Court is granting Cross River's and TCU's motions to join
Sunlight's motions to compel arbitration, the Court treats
Sunlight's motions to compel arbitration as being brought by each
of the three Defendants. Hence, this Opinion & Order reflects that
the motions to compel arbitration are partially granted and
partially stayed.
The complaints filed by the Plaintiffs in each of these seven cases
are substantially similar, as are the facts and allegations
contained therein. As such, the Court issued an order consolidating
the cases sua sponte. The Court, thus, recites the common facts of
this case as the Plaintiffs allege them across the consolidated
cases, specifying the facts on a party-specific basis where
necessary.
The consolidated cases stem from a purported business operation
that allegedly used false promises, deceptive advertisement, and
pressured sales tactics to sell customers overpriced and defective
residential solar panel systems. The Plaintiffs are Gregory and
Rebekah Bowe (Case No. 2:22-cv-04266, "Bowe"); Deanna and
Christopher Evans (Case No. 1:22-cv-00723, "Evans"); Stephen and
Mallori Salazar (Case No. 2:22-cv-04314, "Salazar"); John and Mary
Riley (Case No. 2:22-cv-04315, "Riley"); Bree-Ann and Brian Stenger
(Case No. 1:22-cv-00721, "Stenger"); Thomas and Amanda Chamberlin
(Case No. 2:22-cv-04318, "Chamberlin"); and Nathan and Tiffany
Genton (Case No. 2:22-cv-04310, "Genton").
The Bowe, Evans, and Salazar Plaintiffs sued Defendants Cross River
Bank ("Cross River"), Sunlight Financial, LLC ("Sunlight"), Jayson
Waller ("Waller"), and Trivest Partners, L.P. ("Trivest"). The
Riley, Stenger, Chamberlin, and Genton Plaintiffs also sued
Sunlight, Waller, and Trivest, but sued Defendant Technology Credit
Union ("TCU") rather than Cross River.
To provide context on the Defendants, Cross River and TCU are
credit unions who, along with Sunlight, provided loans to the
Plaintiffs for the purchase of the solar panel system from the now
defunct solar panel company, Power Home Solar, LLC (d/b/a Pink
Energy) ("Pink Energy"). Trivest is a private equity company that
invested in Pink Energy. Waller was a corporate officer of Pink
Energy. The Plaintiffs allege Trivest and/or Waller worked with
Pink Energy to solicit, sell, install, and maintain solar power
energy systems designed for residential use. The Plaintiffs also
allege Cross River and TCU acted by and through Sunlight to provide
financing to the Plaintiffs in the purchase of the Pink Energy
solar panel system.
In 2018, Trivest, through Waller, purchased a 25% ownership
interest in Pink Energy and became involved in the day-to-day
operation of Pink Energy. On Oct. 7, 2022, Pink Energy filed for
bankruptcy and, as such, has not been added as a party to these
lawsuits. The Plaintiffs, however, refer to the Defendants
collectively as the "Pink Energy Group" through their complaints.
Before turning to the procedural history in these consolidated
cases, the Court considers the procedural history of a related case
that began close in time. On Nov. 13, 2022, the plaintiffs in Hall,
et al. v. Trivest Partners L.P., et al. (Case No. 4:22-cv-12743)
("Hall") filed a nationwide class action lawsuit in the U.S.
District Court for the Eastern District of Michigan. The Hall
complaint arose from the same purported business operation that
allegedly used false promises, deceptive advertisement, and
pressured sales tactics to sell customers Pink Energy's overpriced
and defective home solar panel systems.
The three defendants in Hall are Trivest, Waller, and TGIF Power
Home Investor, LLC (later known as Pink Energy). The plaintiffs in
Hall allege three causes of action: Racketeer Influenced and
Corrupt Organizations Act ("RICO"), in violation of 18 U.S.C.
Sections 1962(a) and (c); Conspiracy to Violate RICO, in violation
of 18 U.S.C. Section 1962(d); and violations of the Michigan
Consumer Protections Act.
The putative class in Hall, which the court has not yet certified,
includes: "[a]ll persons in the United States who purchased a home
solar system from Power Home Solar, LLC (including d/b/a/ Pink
Energy) at any time since January 1, 2018."
The Plaintiffs filed their complaints in these consolidated cases
on Dec. 7, 2022, approximately one month after the complaint in
Hall was filed. The Plaintiffs' complaints bring forth 13 claims
against the Defendants, which include Breach of Contract (against
all Defendants), Fraudulent Misrepresentation (against all
Defendants), and Negligent Misrepresentation (against all
Defendants).
After the Plaintiffs filed their complaints, Trivest and Waller
filed Motions to Dismiss in all cases; Sunlight filed Motions to
Compel Arbitration and Dismiss in all cases; Cross River filed
Motions to Join Sunlight's Motions to Compel Arbitration and
Dismiss in Bowe, Evans, and Salazar; TCU filed Motions to Join
Sunlight's Motions to Compel Arbitration and Dismiss in Riley,
Stenger, Chamberlin, and Genton; and Plaintiffs filed Motions for
Discovery in all cases requesting to conduct limited discovery on
whether the arbitration provision at issue is enforceable.
The Plaintiffs filed responses in opposition to the various motions
to dismiss and motions to compel arbitration. The Plaintiffs,
however, did not oppose Cross River's or TCU's motions to join
Sunlight's motions. The Defendants filed responses in opposition to
the Plaintiffs' motions for limited discovery. The Court notes,
however, that on Nov. 3, 2023, Sunlight filed notice with the Court
that Sunlight Financial Holdings, Inc., and its debtor affiliates,
including Sunlight, commenced bankruptcy proceedings on Oct. 30,
2023.
A. Trivest's Motions to Dismiss
The Court first considers Trivest's motions to dismiss, which argue
that Trivest should be dismissed from this consolidated lawsuit
because the first to file rule applies, the Court lacks personal
jurisdiction over Trivest, and the Plaintiffs fail to state a claim
against Trivest.
Trivest argues Hall was filed before these consolidated cases were
filed and the resolution of Hall could resolve these consolidated
cases. The Plaintiffs respond that the first-to-file rule is
inapplicable here because Hall concerns substantially different
claims and parties from these consolidated cases.
First, the Court finds Hall predates these consolidated cases.
Second, when evaluating the similarity of the parties involved, the
Court finds the parties involved do not substantially overlap.
While the definition of the putative class in Hall is broad enough
to include the Plaintiffs and Hall defendants include Trivest and
Waller, Hall does not include Defendants Sunlight, Cross River, and
TCU, who are parties in these consolidated cases. Third, when
evaluating the similarity of the issues or claims at stake, the
Court finds the cases do not substantially overlap.
While Hall concerns the same scheme to defraud customers in
purchasing faulty residential solar panel systems from Pink Energy,
none of the 13 causes of action in these consolidated cases is pled
in Hall, Judge Marbley points out. Rather, Hall alleges RICO
violations and violations of the Michigan Consumer Sales Practices
Act. Since the actions do not raise the same claims arising under
the same laws, this factor weighs against application of the
first-to-file rule.
Overall, when evaluating the three factors of the first-to-file
rule, the Court does not find it appropriate to dismiss or stay
these consolidated cases based on Hall. Accordingly, Trivest's
motions to dismiss based on the first-to-file rule are denied.
While the Court refrains from a sweeping generalization that a
minority share and day-to-day operational involvement can never be
enough to establish specific jurisdiction, the Court finds the
Plaintiffs' allegations insufficient. For this reason, Trivest's
motions to dismiss are granted.
Despite finding the Court lacks personal jurisdiction over Trivest,
Judge Marbley analyzed Trivest's motion to dismiss for failure to
state a claim. The Court finds that the Plaintiffs fail to state a
valid claim against Trivest.
B. Waller's Motions to Dismiss
The Court next turns to Waller's motions to dismiss, which argue
Waller should be dismissed from this lawsuit because the Plaintiffs
fail to establish his personal liability and fail to adequately
plead their fraud and negligence-based claims against him.
Mr. Waller argues that he should be dismissed from this lawsuit
because the Plaintiffs never allege that he was directly involved
in the events that caused their injuries and, even if they had, he
is not personally liable for Pink Energy's actions because he was a
mere corporate officer. The Plaintiffs respond that they adequately
pled Waller's liability because they allege he was intimately
involved in the day-to-day operations of Pink Energy, designed and
taught the sales tactics that were used to defraud the Plaintiffs,
and had control over Pink Energy.
The Court finds the Plaintiffs fail to make any allegations which,
if proven, would render Waller personally liable for their alleged
injuries. Most of the Plaintiffs' allegations are directed at the
"Pink Energy Group" rather than Waller specifically. The specific
allegations against Waller are limited, among other things, to the
following: Waller was "intimately involved in designing,
implementing, and teaching the fraudulent sales practices employed
by Pink Energy's Agents/Employees."
Judge Marbley finds these allegations against Waller pertain to his
level of influence over Pink Energy's day-to-day operations and
tactics. None of them suggests that Waller himself interacted with
the Plaintiffs, or even that he directed the sales personnel, who
visited the Plaintiffs at their homes to utilize the hard-sell
tactics that he allegedly developed. Further, the Plaintiffs make
no allegations indicating Waller exercised complete or
near-complete dominion over Pink Energy to the extent that Pink
Energy lacked any effective autonomy.
In short, Judge Marbley says, there are no allegations that Pink
Energy is indistinguishable from Waller himself. As such, the Court
finds the Plaintiffs fail to plead Waller's personal liability. For
that reason, Waller's motions to dismiss are granted.
The Court also finds that the Plaintiffs fail to state valid
fraud-based claims against Waller, and fail to state a valid claim
for negligent retention/hiring and training. The Court adds that
the economic loss rule bars the Plaintiffs' negligence claim
against Waller.
C. Sunlight's Motions to Compel Arbitration and Dismiss,
Cross River's and TCU's Motions for Joinder in
Sunlight's Motion, and Plaintiffs' Motions for Discovery
On Oct. 30, 2023, Sunlight initiated bankruptcy proceedings. Since
Sunlight is a defendant in these consolidated cases, there is no
question that these lawsuits are "against the debtor." The
automatic stay applies to Sunlight and, therefore, the Court finds
it cannot issue an opinion on Sunlight's Motions to Compel
Arbitration and Dismiss at this time.
The Court finds Defendant Sunlight is not a required party since a
resolution of the claims against Sunlight would not resolve the
Plaintiffs' claims against the other Defendants. Put differently,
Judge Marbley explains each of the claims for relief sought by the
Plaintiffs could be effectively enforced against the other
Defendants without the need for Sunlight.
Therefore, the Court finds it promotes judicial efficiency to sever
all claims against Defendant Sunlight from these consolidated cases
and stay Sunlight's Motions to Compel Arbitration and Dismiss.
The Court next turns to Cross River's and TCU's Motions for Joinder
in Sunlight's Motions to Compel Arbitration and Dismiss. Since
Cross River and TCU are parties to the same Loan Agreements between
the Plaintiffs and Sunlight, the Court grants Cross River's and
TCU's Motions for Joinder in Sunlight's Motions to Compel
Arbitration and Dismiss.
Accordingly, the Court addresses the motions to compel arbitration
and dismiss as if Cross River and TCU were standing in Sunlight's
shoes.
In the motions to compel arbitration and dismiss, the parties
debate the enforceability of the Arbitration Provision contained in
the Loan Agreements that the Plaintiffs signed. Cross River/TCU
argue that the Plaintiffs entered into a valid arbitration
agreement and their claims against them are subject to arbitration.
The Plaintiffs respond that the Arbitration Provision in the Loan
Agreement should be voided because it was borne of fraud and is
unconscionable.
While the Plaintiffs provided an affidavit from counsel stating
they need depositions of sales personnel and corporate
representatives to gather information about Pink Energy's sales
practices and training, the Court finds the Plaintiffs have not
shown why they need such discovery to justify its position. In
fact, the Plaintiffs responded to Sunlight's motions before filing
their motions for discovery, and they detail in their responses in
opposition to Sunlight's motions how the sales in these cases were
conducted. Accordingly, the Plaintiffs' Motions for Discovery is
denied.
Judge Marbley notes that the Arbitration Provision specifically
states that any disputes about the validity, enforceability,
coverage, or scope of the Arbitration Provision are for the court
and not the arbitrator to decide, while disputes about the validity
or enforceability of the Note (i.e. Loan Agreement) is for the
arbitrator and not the court to decide. Accordingly, the Court
finds it has the authority to resolve the parties' disputes
surrounding the Arbitration Provision itself, but not the Loan
Agreement as a whole.
Judge Marbley finds that all of the Plaintiffs' allegations against
Cross River and TCU meet the definition of "claim" within the
Arbitration Provision since they all relate to the marketing, sale,
purchase, and installation of their solar panel system. Therefore,
the Court finds all of the Plaintiffs' claims against Cross River
and TCU are subject to arbitration.
The Plaintiffs argue the Arbitration Provision is procedurally
unconscionable because they were rushed to sign it without being
told about it. Judge Marbley points out that there is no evidence
before the Court, though, that they were too young, lacked
education, intelligence, and/or business acumen and experience,
and/or had such unequal bargaining power as to render the
Arbitration Provision procedurally unconscionable. Rather, the
evidence shows the Plaintiffs voluntarily signed the Loan Agreement
immediately below and above acknowledgments stating that they
agreed to the Arbitration Provision limiting their ability to
litigate any future dispute.
While the Plaintiffs may have felt they were rushed to sign the
agreements because they did not want to miss out on the sales
promotions, there is no evidence before the Court that they were
not given an opportunity to read the contracts and provisions
therein. Accordingly, the Court finds the Arbitration Provision is
not procedurally or substantively unconscionable.
Having found that the Plaintiffs' claims are subject to arbitration
and the Arbitration Provision is not unconscionable, the Court last
determines whether it should dismiss the claims against Cross River
and TCU as requested or enter a stay of the action. When all claims
fall under the scope of an arbitration agreement, Judge Marbley
explains that a court is to direct the parties to proceed to
arbitration and dismiss the claims, without prejudice and subject
to reinstatement, if necessary, so no further action is required of
the court, except to enter judgment.
Since the Court found all claims against Cross River and TCU fall
under the scope of the arbitration provision, the Court finds it
appropriate to dismiss, rather than stay, the Plaintiffs' claims
against Cross River and TCU. Accordingly, Cross River's and TCU's
Motions to Compel Arbitration and Dismiss are granted.
For the reasons set forth in this Opinion & Order, the Court grants
Defendant Trivest Partners, L.P.'s Motions to Dismiss; Defendant
Jayson Waller's Motions to Dismiss; and Defendant Cross River
Bank's and Defendant Technology Credit Union's Motions for Joinder
in Defendant Sunlight Financial, LLC's Motions to Compel
Arbitration and Dismiss. Additionally, the Court severs all claims
against Sunlight Financial, LLC from this action.
As a result, the Court grants in part Defendant Sunlight Financial,
LLC's Motions to Compel Arbitration and Dismiss, such that the
motions are granted as to Defendant Cross River Bank and Defendant
Technology Credit Union but stayed Defendant Sunlight Financial,
LLC's Motions to Compel Arbitration and Dismiss as to Defendant
Sunlight. Finally, the Court denies the Plaintiffs' Motions for
Discovery.
Based on the Court's rulings, the claims against Defendants Trivest
Partners, L.P., and Jayson Waller are dismissed in all cases. The
claims against Defendant Cross River Bank are dismissed in Bowe,
Evans, and Salazar, and the claims against Defendant Technology
Credit Union are dismissed in Riley, Stenger, Chamberlin, and
Genton.
The Plaintiffs are ordered to submit their claims against Defendant
Cross River Bank and Defendant Technology Credit Union to
arbitration according to the terms of the Loan Agreements.
A full-text copy of the Court's Opinion & Order dated March 11,
2024, is available at https://tinyurl.com/2frsxxcc from
PacerMonitor.com.
DAVE'S KILLER BREAD: Smothers Suit Removed to N.D. Illinois
-----------------------------------------------------------
The case captioned as Wendy Smothers, Bhavik Lakhani, Massimiliano
Agostini, Octavio Chaves, and Michael Walsh individually and on
behalf of all others similarly situated v. DAVE'S KILLER BREAD,
INC., AND FLOWERS FOODS, INC., Case No. 23LA00000662 was removed
from the State of Illinois Circuit Court of 19th Judicial Circuit,
Lake County, to the U.S. District Court for the Northern District
of Illinois on March 15, 2024, and assigned Case No.
1:24-cv-02189.
The Complaint asserts the following claims: Violations of the
Illinois Consumer Fraud and Deceptive Business Practices Act;
Violations of the Illinois Uniform Deceptive Trade Practices Act;
Violation of California's Consumers Legal Remedies Act ("CLRA"),
(on behalf of the putative California class); Violations of New
York's (on behalf of the putative New York class); Violation of New
York's Gen. Bus. Law (on behalf of the putative New York class);
Breach of Express Warranty (on behalf of the putative nationwide
class or, in the alternative the Illinois class); Unjust Enrichment
(on behalf of the putative nationwide class or, in the alternative,
the Illinois class).[BN]
The Defendants are represented by:
Livia M. Kiser, Esq.
Jordan A. Block, Esq.
KING & SPALDING LLP
110 N. Wacker Drive, Suite 3800
Chicago, IL 60606
Phone: 312.995.6333
Email: lkiser@kslaw.com
jblock@kslaw.com
DEBORAH PHILLIPS: Jones Suit Removed to D. South Carolina
---------------------------------------------------------
The case styled as Clyde Marcus Jones, II, Dennis Phillips, on
behalf of themselves and all others similarly situated v. Deborah
Phillips; Michael Callahan, personally and as President of Duke
Energy's South Carolina Operations; Duke Energy Corporation; Duke
Energy Carolinas, LLC; Case No. 2024-CP-28-00109 was removed from
the Kershaw County Court of Common Pleas, to the U.S. District
Court for the District of South Carolina on March 15, 2024.
The District Court Clerk assigned Case No. 3:24-cv-01281-MGL to the
proceeding.
The nature of suit is stated as Torts to Land.
Duke Energy Corporation -- https://www.duke-energy.com/ -- is an
American electric power and natural gas holding company
headquartered in Charlotte, North Carolina.[BN]
The Plaintiff is represented by:
Algernon Gibson Solomons, III, Esq.
SPEIGHTS AND SOLOMONS LLC
PO Box 685
100 Oak Street East
Hampton, SC 29924
Phone: (803) 943-4444
Fax: (803) 943-4599
Email: gsolomons@speightsandsolomons.com
- and -
Austin Moses Sheheen, Esq.
SAVAGE, ROYALL, AND SHEHEEN LLP
1111 Church Street
Camden, SC 29020
Phone: (803) 432-4391
Fax: (803) 425-4812
Email: asheheen@thesavagefirm.com
- and -
Jessica Lerer Fickling, Esq.
STROM LAW FIRM LLC
6923 N Trenholm Road, Suite 200
Columbia, SC 29206
Phone: (803) 252-4800
Fax: (803) 252-4801
Email: jfickling@stromlaw.com
- and -
Vincent A. Sheheen, Esq.
SAVAGE ROYALL AND SHEHEEN
PO Drawer 10
Camden, SC 29020
Phone: (803) 432-4391
Fax: (803) 425-4816
Email: vsheheen@thesavagefirm.com
The Defendants are represented by:
Kevin A. Dunlap, Esq.
PARKER POE ADAMS AND BERNSTEIN (SPA)
100 Dunbar Street, Suite 206
Spartanburg, SC 29306
Phone: (864) 591-2030
Fax: (864) 591-2050
Email: kevindunlap@parkerpoe.com
- and -
Steven D. Weber, Esq.
PARKER POE ADAMS AND BERNSTEIN (CHAR NC)
401 S Tryon Street, Suite 3000
Charlotte, NC 28202
Phone: (704) 335-9065
Fax: (704) 334-4706
Email: steveweber@parkerpoe.com
DELTA DENTAL: Lamons Suit Transferred to D. Massachusetts
---------------------------------------------------------
The case styled as Kerry Lamons, individually and on behalf of all
others similarly situated; Taneisha Robertson, individually and on
behalf of her minor children, X.R. and J.R. v. Delta Dental of
California, Case No. 3:24-cv-00030 was transferred from the U.S.
District Court for the Northern District of California, to the U.S.
District Court for the District of Massachusetts on March 18,
2024.
The District Court Clerk assigned Case No. 1:24-cv-10668-ADB to the
proceeding.
The nature of suit is stated as Other Personal Property.
Delta Dental -- https://www1.deltadentalins.com/ -- has the largest
network of dentists nationwide.[BN]
The Plaintiffs are represented by:
Kyle Douglas McLean, Esq.
SIRI & GLIMSTAD LLP
700 S. Flower Street, Suite 1000
Los Angeles, CA 90017
Phone: (213) 376-3739
Email: kmclean@sirillp.com
The Defendants are represented by:
Robert J. Guite, Esq.
SHEPPARD, MULLIN, RICHTER & HAMPTON LLP
Four Embarcadero Center, 17th Floor
San Francisco, CA 94111
Phone: (415) 434-9100
Email: rguite@sheppardmullin.com
- and -
Kari M. Rollins, Esq.
Meghan Stuer, Esq.
SHEPPARD MULLIN RICHTER & HAMPTON LLP
30 Rockefeller Plaza
New York, NY 10112
Phone: (212) 653-8700
Email: krollins@sheppardmullin.com
mstuer@sheppardmullin.com
DELTA DENTAL: Meeks Suit Transferred to D. Massachusetts
--------------------------------------------------------
The case styled as John Meeks, individually and on behalf of all
others similarly situated v. Delta Dental of California, Case No.
3:24-cv-00202 was transferred from the U.S. District Court for the
Northern District of California, to the U.S. District Court for the
District of Massachusetts on March 15, 2024.
The District Court Clerk assigned Case No. 1:24-cv-10641-ADB to the
proceeding.
The nature of suit is stated as Other Contract.
Delta Dental -- https://www1.deltadentalins.com/ -- has the largest
network of dentists nationwide.[BN]
The Plaintiff is represented by:
(Eddie) Jae K. Kim, Esq.
LYNCH CARPENTER, LLP
117 East Colorado Blvd., Suite 600
Pasadena, CA 91105
Phone: (626) 550-1250
Email: ekim@lcllp.com
- and -
Gary F. Lynch, Esq.
LYNCH CARPENTER, LLP
1133 Penn Avenue, 5th Floor
Pittsburgh, PA 15222
Phone: (412) 322-9243
Email: gary@lcllp.com
The Defendants are represented by:
Robert J. Guite, Esq.
SHEPPARD, MULLIN, RICHTER & HAMPTON LLP
Four Embarcadero Center, 17th Floor
San Francisco, CA 94111
Phone: (415) 434-9100
Email: rguite@sheppardmullin.com
- and -
Kari M. Rollins, Esq.
Meghan Stuer, Esq.
SHEPPARD MULLIN RICHTER & HAMPTON LLP
30 Rockefeller Plaza
New York, NY 10112
Phone: (212) 653-8700
Email: krollins@sheppardmullin.com
mstuer@sheppardmullin.com
DESALES UNIVERSITY: Keenhol Seeks Refund of Tuition and Fees
------------------------------------------------------------
JEFFREY LOGAN KEENHOL, on behalf of himself and all others
similarly situated, Plaintiff V. DESALES UNIVERSITY, Defendant,
Case No. 5:24-cv-01083-JLS (E.D. Pa., March 13, 2024), arises from
the Defendant's refusal to provide a prorated refund of tuition or
fees tied to its on-campus education, services, and amenities that
were not available to students for a significant part of the Spring
2020 semester.
By not giving prorated refunds for tuition or fees charged for
on-campus education and services not provided, Desales University
breached its contracts with students or was otherwise unjustly
enriched. Accordingly, the Plaintiff brings this class action for
damages and restitution resulting from DSU's retention of the
tuition and fees paid by Plaintiff and the other putative Class
members for in-person education and services not being provided.
DSU is a private liberal arts college founded in 1964. DSU offers
undergraduate programs and graduate programs. Defendant's
undergraduate program enrolls students from Pennsylvania as well as
throughout other states and countries. Its principal campus is
located in Center Valley, Pennsylvania. [BN]
The Plaintiff is represented by:
Gary F. Lynch, Esq.
Nicholas A. Colella, Esq.
LYNCH CARPENTER, LLP
1133 Penn Avenue, 5th Floor
Pittsburgh, PA 15222
Telephone: 412-322-9243
Facsimile: 412-231-0246
E-mail: gary@lcllp.com
nickc@lcllp.com
- and -
Michael A. Tompkins, Esq.
Anthony Alesandro, Esq.
LEEDS BROWN LAW, P.C.
One Old Country Road, Suite 347
Carle Place, NY 11514
Telephone: (516) 873-9550
E-mail: mtompkins@leedsbrownlaw.com
DHL EXPRESS USA: Sowemimo Files Suit in Cal. Super. Ct.
-------------------------------------------------------
A class action lawsuit has been filed against DHL Express USA,
Inc., et al. The case is styled as Aaron Sowemimo, Patrick Brown,
an individual, and on behalf of themself and all others similarly
situated v. DHL Express USA, Inc., Does 1 through 50, Inclusive,
Case No. CGC24613006 (Cal. Super. Ct., San Francisco Cty., March
11, 2024).
The case type is stated as "Other Non-Exempt Complaints (failure to
pay regular and/or overtime wages; failure to provide meal periods;
failure to provide rest periods)."
DHL -- https://www.dhl.com/us-en/home.html -- is the global leader
in the logistics industry specializing in international shipping,
courier services and transportation.[BN]
The Plaintiff is represented by:
David R. Markham, Esq.
THE MARKHAM LAW FIRM
888 Prospect St., Ste. 200
La Jolla, CA 92037-4261
Phone: 619-399-3995
Fax: 619-323-1684
Email: dmarkham@markham-law.com
- and -
Walter Lewis Haines, Esq.
UNITED EMPLOYEES LAW GROUP
8605 Santa Monica Blvd., # 63354
West Hollywood, CA 90069-4109
Phone: 562-256-1047
Fax: 562-256-1006
Email: walter@uelglaw.com
DOMINO SUGAR: Faces Class Action Lawsuit Over Price Fixing
----------------------------------------------------------
cbsnews.com reports that Three antitrust lawsuits filed by food
businesses in federal court in Minnesota this week accuse some of
the largest U.S. sugar-producing companies of conspiring to fix
prices.
The lawsuits name United Sugars, which includes American Crystal
Sugar and the Minn-Dak Farmers Cooperative; Domino Sugar; Cargill;
other producers, and a commodity data company. The plaintiffs in
the class-action lawsuits include Great Harvest Bread in Duluth,
Morelos Bakery in St. Paul and the Connecticut restaurant group
WNT, the Star Tribune reported.
"Since at least 2019, the Producing Defendants have had an ongoing
agreement to artificially raise, fix, stabilize or maintain
Granulated Sugar prices in the United States," one of the lawsuits
alleges. "To effectuate this agreement, the Producing Defendants
engaged in price signaling and exchanges of detailed, accurate,
non-public, competitively sensitive information."
The lawsuits, which make broadly similar claims, seek injunctions
barring the sugar companies from engaging in illegal conduct and
unspecified damages.
The sugar industry, which is dominated by a handful of large
companies, has faced antitrust scrutiny for decades. A 1978 consent
decree banned sugar companies from communicating about future
prices or coordinating on sugar sales.
Minnesota grows more sugar beets than any other state. United
Sugars, which is based in Edina, called the claims baseless.
"While it is our longstanding practice to not comment extensively
on litigation, we believe this case has no merit, and we will
vigorously defend ourselves from its baseless accusations," the
company said in a statement.
Minnetonka-based agribusiness giant Cargill also denied the
allegations.
"We take pride in conducting our business with integrity," Cargill
said in a statement. "We compete vigorously but do so fairly,
ethically and in compliance with the law." [GN]
DOMINO'S PIZZA: Faces Garcia et al. Suit Over BIPA Violations
-------------------------------------------------------------
ODILON GARCIA, JONATHAN NEUMANN, and ZACHERY YOUNG, individually
and on behalf of all others similarly situated, Plaintiffs, v.
DOMINO’S PIZZA, INC. and CONVERSENOW TECHNOLOGIES, INC.,
Defendants, Case No. 1:24-cv-02090 (N.D. Ill., March 13, 2024)
arises out of Defendants' actions in collecting, capturing,
otherwise obtaining, using, and/or storing the biometric
identifiers and/or biometric information of Plaintiffs and other
similarly situated individuals, without informing them in writing
or obtaining their written consent, as required by the Illinois
Biometric Information Privacy Act.
The Plaintiffs bring this action on behalf of all individuals who
had their voiceprints, biometric identifiers, and/or biometric
information collected, captured, otherwise obtained, used, and/or
stored, when making a telephone order at a Domino's location in
Illinois at any time within the applicable statute of limitations,
to prevent Defendants from further violating Illinois law and to
recover damages for Defendants' violations of their and other Class
members' statutorily-protected rights to privacy under BIPA.
Headquartered in Michigan, Domino's Pizza, Inc. owns, operates,
oversees, and controls the "Domino's" brand of pizza restaurants.
It is the largest pizza company in the world, with approximately
$18 billion in global retail sales in 2023. [BN]
The Plaintiffs are represented by:
J. Ryan Lopatka, Esq.
KAHN SWICK & FOTI, LLC
161 N. Clark St., Suite 1700
Chicago, IL 60601
Telephone: (312) 759-9700
Facsimile: (504) 455-1498
E-mail: j.lopatka@ksfcounsel.com
- and -
Kim E. Miller, Esq.
KAHN SWICK & FOTI, LLC
250 Park Avenue, 7th Floor
New York, NY 10177
Telephone: (212) 696-3732
Facsimile: (504) 455-1498
E-mail: kim.miller@ksfcounsel.com
- and -
Lewis S. Kahn, Esq.
Melissa H. Harris, Esq.
KAHN SWICK & FOTI, LLC
1100 Poydras Street, Suite 960
New Orleans, LA 70163
Telephone: (504) 455-1400
Facsimile: (504) 455-1498
E-mail: lewis.kahn@ksfcounsel.com
melissa.harris@ksfcounsel.com
- and -
Don Bivens, Esq.
Teresita Mercado, Esq.
DON BIVENS, PLLC
15169 N. Scottsdale Road Suite 205
Scottsdale, AZ 85254
Telephone: 602-708-1450
E-mail: don@donbivens.com
teresita@donbivens.com
DOR L'DOR INC: Erkan Files ADA Suit in E.D. New York
----------------------------------------------------
A class action lawsuit has been filed against Dor L'Dor, Inc. The
case is styled as Nihal Erkan, on behalf of herself and all others
similarly situated v. Dor L'Dor, Inc., Case No.
1:24-cv-01746-EK-JRC (E.D.N.Y., March 8, 2024).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Dor L' Dor -- https://dorldornyc.com/ -- is a family owned small
business and has grown from a one shop boutique to an emerging
brand with locations throughout New York and New Jersey.[BN]
The Plaintiff is represented by:
Mars Khaimov, Esq.
14749 71st Ave.
Flushing, NY 11367
Phone: (917) 915-7415
Email: mars@khaimovlaw.com
EDGAR P. BENJAMIN HEALTHCARE: Santos Sues Over Unpaid Earned Wages
------------------------------------------------------------------
Rudis Santos, individually and on behalf of others similarly
situated v. THE EDGAR P. BENJAMIN HEALTHCARE CENTER, INC., TONY
FRANCIS, and EVAN TOBASKY, (Commonweath of Mass., March 12, 2024),
is brought under the Massachusetts Wage Act on behalf of the
Plaintiff and numerous other employees aggrieved by the Center's
failure to timely pay their earned wages and for retaliating
against him for complaining about his and his coworkers' unpaid
wages.
Between November 2023 1. and early December 2023, Plaintiff Rudis
Santos and dozens of his coworkers performed several weeks of work
for Defendant The Edgar P. Benjamin Healthcare Center, Inc. (the
"Center") without pay. After receiving a tip regarding these unpaid
wages, Boston 25 News arrived at the Center and began interviewing
employees regarding the allegations. Amongst other employees,
Boston 25 News interviewed Plaintiff Rudis Santos. While on camera,
Mr. Santos complained about the Center's failure to pay his and his
coworkers' wages. Immediately after the interview, Mr. Santos
entered the Center, at which point the company took his keys and
sent him home for the day. Mr. Santos then exited the building and
again spoke to Boston 25 News, reporting what had just happened. A
few weeks later, the Center terminated Mr. Santos employment
because of and in retaliation for his complaints about the
company's illegal wage practices, says the complaint.
The Plaintiff was hired by the Defendant as a housekeeper in March
2018.
The Center operates a skilled nursing and rehabilitation center in
Boston.[BN]
The Plaintiff is represented by:
Raven Moeslinger, Esq.
Nicholas F. Ortiz, Esq.
LAW OFFICE OF NICHOLAS F. ORTIZ, P.O.
One Boston Place, Suite 2600
Boston, MA 02108
Phone: (617)338-9400
Email: rm@mass-legal.com
EDTHEORY LLC: Camarena Sues Over Failure to Pay Minimum Wages
-------------------------------------------------------------
Sarah Camarena, and other similarly situated aggrieved employees v.
EDTHEORY, LLC; MARVEL PHILIP; PRADEESH THOMAS; and DOES 1 to 25,
inclusive, Case No. 24STCV06774 (Cal. Super. Ct., Los Angeles Cty.,
March 18, 2024), is brought for failure to compensate for all hours
worked; failure to pay minimum wages; failure to pay overtime;
failure to provide accurate itemized wage statements; failure to
pay wages owed every pay period; failure to give rest breaks;
failure to give meal breaks; failure to reimburse for business
expenses; Private Attorneys General Act ("PAGA"); violation of
California Business And Professions Code.
The Defendants did not provide Plaintiff and other similarly
situated aggrieved employees with the minimum wages to which they
were entitled for all work performed and did not compensate her and
others for all hours worked pursuant to California Labor Code. This
is so because Plaintiff and others consistently worked "off the
clock" in that the company had a policy of rounding down hours to
the detriment of employees who would not be paid for all hours
worked. In addition, since the Defendants manipulated Plaintiffs
timecard entries to input a meal break of 30 minutes that was NEVER
taken, the Defendants was essentially stealing wages from Plaintiff
and not paying her for all hours worked, including the minimum
wage. Management was aware that Plaintiff was working "off the
clock" and yet did not compensate her for these work hours.
Consequently, Plaintiff was not being paid for all hours worked and
was not being paid the minimum wage for all hours worked, says the
complaint.
The Plaintiff is currently working at EDTHEORY as a school aide.
EDTHEORY, INC. is and a Delaware corporation doing business in
Pleasanton, California, and which employed Plaintiff.[BN]
The Plaintiff is represented by:
Harout Messrelian, Esq.
MESSRELIAN LAW INC.
500 N. Central Ave., Suite 840
Glendale, CA 91203
Phone: (818) 484-6531
Facsimile: (818) 956-1983
ELHILU SERVICE: Fails to Pay Proper Wages, Alcudia Alleges
----------------------------------------------------------
JOSE LUIS MARTINEZ ALCUDIA, individually and on behalf of all
others similarly situated, Plaintiff v. ELHILU SERVICE STATION,
INC.; ESMAT ELHILU; and DOES 1 through 100, inclusive, Case No.
24STCV06200 (Cal. Super., Los Angeles Cty., March 13, 2024) is an
action against the Defendants for failure to pay minimum wages,
overtime compensation, authorize and permit meal and rest periods,
provide accurate wage statements, and reimburse necessary business
expenses.
Plaintiff Alcudia was employed by the Defendants as a staff.
ELHILU SERVICE STATION, INC. is a gas station ownership and
management company operating out of Los Angeles County, California.
[BN]
The Plaintiff is represented by:
Sarkis Sirmabekian, Esq.
SIRMABEKIAN LAW FIRM, PC
3435 Wilshire Blvd., Suite 1710
Los Angeles, CA 90010
Telephone: (818) 473-5003
Facsimile: (818) 476-5619
Email: contact@slawla.com
ELRAC LLC: Odam Suit Removed to S.D. New York
---------------------------------------------
The case captioned as Michael Odam, on behalf of himself and all
others similarly situated v. ELRAC, LLC, ALAMO RENTAL (US) LLC, and
NATIONAL RENTAL (US) LLC, Case No. 655487/2023 was removed from the
Supreme Court of the State of New York, County of New York, to the
U.S. District Court for the Southern District of New York on March
18, 2024, and assigned Case No. 1:24-cv-02017.
On March 5, 2024, Defendant Alamo Rental (US) LLC received notice
of service of the Summons and Complaint on the New York Secretary
of State. To date, Defendant ELRAC, LLC, has not received notice of
service of the Summons and Complaint; however, Defendant ELRAC, LLC
consents to the removal of this action. As part of the Complaint,
Plaintiff has alleged damages in excess of one million
dollars.[BN]
The Defendants are represented by:
Kelly M. Cardin, Esq.
Sarah M. Zucco, Esq.
OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C.
599 Lexington Avenue – 17th Fl.
New York, New York 10022
Phone: (212) 492-2517
Email: kelly.cardin@ogletreedeakins.com
sarah.zucco@ogletreedeakins.com
EMPIRE AUTO PROTECT: Misner Files TCPA Suit in S.D. Ohio
--------------------------------------------------------
A class action lawsuit has been filed against Empire Auto Protect,
LLC. The case is styled as Brady Misner, individually and on behalf
of all others similarly situated v. Empire Auto Protect, LLC, Case
No. 1:24-cv-00117-DRC (S.D. Ohio, March 8, 2024).
The lawsuit is brought over alleged violation of the Telephone
Consumer Protection Act for Restrictions of Use of Telephone
Equipment.
Empire Auto Protect -- https://empireautoprotect.com/ -- is a car
warranty company servicing nationwide.[BN]
The Plaintiff is represented by:
Andrew John Shamis, Esq.
SHAMIS & GENTILE, PA
14 NE 1st Ave., Ste. 1205
Miami, FL 33132
Phone: (305) 479-2299
Fax: (786) 623-0915
Email: ashamis@shamisgentile.com
ENTERPRISE LEASING: Brinston Suit Removed to E.D. California
------------------------------------------------------------
The case captioned as Edtivia Brinston, on behalf of herself and
all others similarly situated v. ENTERPRISE LEASING COMPANY WEST,
LLC; DOES 1 through 50; inclusive, Case No. A-24-886905-C was
removed from the Eighth Judicial District Court of the State of
Nevada, to the U.S. District Court for the District of Nevada on
March 14, 2024, and assigned Case No. 2:24-cv-00507-JAD-NJK.
The Defendant estimates there to presently be 468 non-exempt
employees who make less than one and one-half times the minimum
wage. The First Cause of Action seeks alleged unpaid daily overtime
for these employees.[BN]
The Defendants are represented by:
Scott M. Mahoney, Esq.
FISHER & PHILLIPS LLP
300 S. Fourth Street, Suite 1500
Las Vegas, NV 89101
Phone: (702) 252-3131
Email: smahoney@fisherphillips.com
EPIC GAMES INC: S.T.G. Files Suit in S.D. California
----------------------------------------------------
A class action lawsuit has been filed against Epic Games, Inc. The
case is styled as S.T.G., S.B.G., S.J.G., minors, by and through
their guardian Samuel Garcia; I.H., E.H., by and through their
guardian Arnold Hernandez; M.A., E.V.A., by and through their
guardian Stephanie Allen; individually and on behalf of all others
similarly situated v. Epic Games, Inc., Case No.
3:24-cv-00517-RSH-AHG (S.D. Cal., March 18, 2024).
The nature of suit is stated as Other Fraud.
Epic Games, Inc. -- http://store.epicgames.com/en-US/-- is an
American video game and software developer and publisher based in
Cary, North Carolina.[BN]
The Plaintiffs are represented by:
Mark N. Todzo, Esq.
LEXINGTON LAW GROUP
503 Divisadero Street
San Francisco, CA 94117
Phone: (415) 913-7800
Fax: (415) 759-4112
Email: mtodzo@lexlawgroup.com
- and -
Patrick R. Carey, Esq.
COVINGTON & BURLING LLP
1 Front Street, Floor 35
San Francisco, CA 94111
Phone: (415) 591-7093
Email: pcarey@cov.com
EVENT TICKETS: Faces Sellers Suit Over Alleged Hidden Junk Fees
---------------------------------------------------------------
Thomas Sellers, individually and on behalf of all others similarly
situated, Plaintiff v. Event Tickets Center, Inc., Defendant, Case
No. 1:24-cv-01881-ENV-VMS (E.D.N.Y., March 13, 2024) arises from
the Defendant's hidden junk fees, which violated the New York Arts
and Cultural Affairs Law.
Plaintiff Sellers alleges that Event Tickets Center sells tickets
in New York with hidden junk fees. The fees are not disclosed prior
to the ticket being selected for purchase, and the price of the
ticket increases during purchase. Moreover, Event Tickets Center
also fails to disclose, "in a clear and conspicuous manner the
portion of the ticket price stated in dollars that represents a
service charge, or any other fee or surcharge to the purchaser" as
required by New York law, says the suit.
Headquartered in Gainesville, FL, Events Tickets Center Inc. owns
and operates the website, www.eventticketscenter.com, which sells
tickets for concerts and sporting events. [BN]
The Plaintiff is represented by:
Jonas B. Jacobson, Esq.
Christin Cho, Esq.
DOVEL & LUNER, LLP
201 Santa Monica Blvd., Suite 600
Santa Monica, CA 90401
Telephone: (310) 656-7066
Facsimile: (310) 656-7069
E-mail: jonas@dovel.com
christin@dovel.com
EXECUTIVE GIFT SHOPPE: Wahab Files ADA Suit in S.D. New York
------------------------------------------------------------
A class action lawsuit has been filed against Executive Gift
Shoppe, Inc. The case is styled as Angela Wahab, on behalf of
herself and all others similarly situated v. Executive Gift Shoppe,
Inc., Case No. 1:24-cv-01844 (S.D.N.Y., March 12, 2024).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Executive Gift Shoppe -- https://www.executivegiftshoppe.com/ --
started in 1999 as a small company specializing in personalized
groomsmen gifts.[BN]
The Plaintiff is represented by:
Mark Rozenberg, Esq.
STEIN SAKS, PLLC
1 University Plaza, Ste. 620
Hackensack, NJ 07601
Phone: (201) 282-6500
Email: mrozenberg@steinsakslegal.com
FACEBOOK INC: $37.5MM Class Settlement in Lundy Suit Has Final OK
-----------------------------------------------------------------
Judge James Donato of the U.S. District Court for the Northern
District of California grants final approval of the proposed class
settlement agreement in the lawsuit entitled BRENDAN LUNDY, et al.,
Plaintiffs v. FACEBOOK INC., Defendant, Case No. 3:18-cv-06793-JD
(N.D. Cal.).
The case was one of two related putative class actions by Facebook
users, who challenged Defendant Facebook, Inc.'s alleged collection
of personal location data without permission. The Court dismissed
the complaint in the related action, Heeger v. Facebook (Case No.
18-6399), for lack of constitutional standing, but allowed this
case to proceed to discovery.
The case did not entail much motion practice or Court intervention
until September 2022, when the parties advised the Court that the
case had settled. The initial settlement request raised substantial
fairness concerns, particularly because the $37.5 million common
fund portended a low dollar recovery per class member relative to
the estimated costs of settlement administration.
A revised application was submitted, and the Court granted
preliminary approval subject to "a searching review" of additional
issues raised by the Court before final approval is granted or
denied in subsequent proceedings. Some of the Court's concerns were
exacerbated at the final approval hearing. The motion for final
approval indicated a claims rate of less than 2%, and an award of
less than $30 per class member. For that rather paltry result,
class counsel requested 25% of the settlement fund, which
represented a 1.17 multiplier of a bloated lodestar comprising
hours worked by 66 timekeepers across five law firms.
The Court disabused class counsel of any notion that such an
outsized fee would be awarded for such a modest win for class
members. The Court directed the parties to file a full accounting
of the share of the fund designated for claims administration,
which was more than $1 million, as well as additional support for
the fee request, including assurances that class counsel was not
seeking fees for work performed in the dismissed Heeger action.
The Plaintiffs filed a supplemental declaration about claims
administration and a renewed motion for fees, which reduced the
number of time keepers to 33 and the fee request to 23.5% of the
settlement fund, which is said to represent a 1.24 multiplier of
the revised lodestar. These filings resolved some of the Court's
concerns about the proposed settlement, but the claims
administrator's declaration indicated that the class notice
campaign included paid Facebook advertisements -- meaning the
Defendant was paying class members with one hand and robbing them
with the other.
The Court advised the parties that no settlement would be approved
unless and until the money spent on Facebook advertisements was
returned to the class. The Court further indicated that the result
did not warrant any lodestar multiplier for class counsel.
The parties have advised the Court that the $112,690.20 spent on
the Defendant's Facebook and Instagram platforms has been
reimbursed and will be restored to the common fund for distribution
to class members.
On the basis of that representation, the Court grants final
approval of the proposed class settlement and an award of
attorney's fees and costs, as set forth in this Order. This Order
is based on a proposed order filed with the Court and modified to
in accordance with the Court's practices and conclusions.
Judge Donato notes that all terms and definitions used in this
Order have the same meanings as set forth in the Amended Settlement
Agreement unless stated otherwise.
For purposes of the Settlement only, the Court holds that all
prerequisites for maintenance of a class action set forth in
Federal Rules of Civil Procedure 23(a) and (b)(3) are satisfied and
certifies the following Settlement Class: "All natural persons
residing in the United States who used Facebook between January 30,
2015 and April 18, 2018, inclusive, and whose iOS or Android
Location Services setting for the Facebook application was turned
off at any point during that period, but whose location information
was inferred by Facebook via the user's IP Addresses."
Excluded from the Settlement Class are: (i) all persons, who are
directors, officers, and agents of the Defendant or its
subsidiaries and affiliated companies or are designated by the
Defendant as its employees or its subsidiaries and affiliated
companies; (ii) the Court, the Court's immediate family, and Court
staff, as well as any appellate court to which this matter is ever
assigned, and its immediate family and staff; and (iii) eligible
persons who elect to opt out of the Settlement Class.
Pursuant to Federal Rule of Civil Procedure 23(e), the Court grants
final approval of the Settlement and finds that the Settlement is
fair, reasonable, and adequate. The Action, and all claims asserted
therein, is settled and dismissed on the merits with prejudice.
In accordance with this District's Procedural Guidance for Class
Action Settlements, the parties will file a post-distribution
accounting within 21 days after the distribution of the Net
Settlement Fund, and payment of Attorneys' Fees or Expenses and
Service Awards to Class Settlement Representatives, if any. The
Court sets a compliance deadline of May 31, 2024, to verify timely
filing of the post-distribution accounting. The Parties may request
a continuance of this deadline if the Net Settlement fund has not
been distributed 14 days before the compliance deadline.
Judge Donato holds that an award of attorneys' fees and expenses is
appropriate pursuant to Federal Rule of Civil Procedure
23(e)(2)(C)(iii) and, therefore, approves such award in the amount
of class counsel's lodestar, which is $7,131,789.6, plus
$309,524.79 in expenses (the Attorneys' Fees and Expenses Award).
For the reasons discussed at the hearing, a multiplier is denied.
The Court directs the Settlement Class Counsel to distribute the
Attorneys' Fees and Expenses Award among Settlement Class Counsel
and non-class counsel whose work and time was identified in the
Plaintiffs' Motion for Attorney's Fees, Expenses, and Service
Awards, except that 25% of the attorney's fees award will be held
back pending further order, to be issued after counsel have filed
the post-distribution accounting required by the District's
Procedural Guidance on Class Action Settlements. The amount of the
distributions otherwise will be determined solely by Settlement
Class Counsel. No other counsel will be entitled to an independent
award of attorneys' fees or expenses.
Payment of "Service Awards" to the Settlement Class Representatives
is approved in the amount of $2,000 for each of the five Settlement
Class Representatives.
A full-text copy of the Court's Order dated March 11, 2024, is
available at https://tinyurl.com/p8thm524 from PacerMonitor.com.
FALCK NORTHERN CALIFORNIA: Nettles Suit Removed to N.D. California
------------------------------------------------------------------
The case captioned as Simone Nettles, individually, and on behalf
of other members of the general public similarly situated v. FALCK
NORTHERN CALIFORNIA CORP., a Delaware corporation; and DOES 1
through 100, inclusive, Case No. 23CV040986 was removed from the
Superior Court of the State of California for the County of
Alameda, to the U.S. District Court for the Northern District of
California on March 15, 2024, and assigned Case No. 3:24-cv-01640.
On August 17, 2023, Plaintiff filed a stock, boilerplate Complaint
("Complaint"), which included no reference to the Union or any CBA,
and asserted claims for Unpaid Overtime; Unpaid Meal Period
Premiums; Unpaid Rest Periods; Unpaid Minimum Wages; Final Wages
Not Timely Paid; Wages Not Timely Paid During Employment;
Non-Complaint Wage Statements; Failure to Keep Requisite Payroll
Records; Unreimbursed Business Expenses; and Violation of
California Labor Code and Business & Professions Code.[BN]
The Defendants are represented by:
Nisha Verma, Esq.
Hannah R. Green, Esq.
DORSEY & WHITNEY LLP
600 Anton Boulevard, Suite 2000
Costa Mesa, CA 92626-7655
Phone: (714) 800-1400
Fax: (714) 800-1499
Email: verma.nisha@dorsey.com
green.hannah@dorsey.com
FIELD SERVICE HOLDINGS: Brown Files Suit in Fla. Cir. Ct.
---------------------------------------------------------
A class action lawsuit has been filed against Field Service
Holdings LLC. case is styled as Radames Brown, individually and on
behalf of all those similarly situated v. Field Service Holdings
LLC, Case No. 2024-10963-CIDL (Fla. Cir. Ct., Volusia Cty., March
17, 2024).
The case type is stated as "Other Civil - Circuit."
Field Service is where cross-industry service, support, and
customer success leaders come together to build world-class
operations.[BN]
The Plaintiff is represented by:
Zane C. Hedaya, Esq.
110 SE 6th Street
Fort Lauderdale, Florida 33301
FIVE STAR BANK: Gurrant, Hoover Sue Over Unlawful Overdraft Fees
----------------------------------------------------------------
WENDY GURRANT and TANYA HOOVER, on behalf of herself and all others
similarly situated, Plaintiff v. FIVE STAR BANK, Defendant, Case
No. 6:24-cv-06155 (W.D.N.Y., March 13, 2024) arises from
Defendant's routine policy and practices of charging its customers
Overdraft Fees (OD) on transactions that did not overdraw an
account and multiple fees on an item and asserts claims for breach
of contract and breach of the covenant of good faith and fair
dealing and for violations of the New York General Business Law.
According to the complaint, despite putting aside sufficient
available funds for debit card transactions at the time those
transactions are authorized, Five Star Bank later assesses OD Fees
on those same transactions when they purportedly settle days later
into a negative balance. Accordingly, Plaintiffs and other FSB
customers have been injured by FSB's practices. On behalf of
themselves and the putative class, Plaintiff seeks damages and
restitution for FSB's breach of contract.
Headquartered in Warsaw, NY, FSB is a bank with over $6 billion
dollars in assets. [BN]
The Plaintiffs are represented by:
James Bilsborrow, Esq.
WEITZ & LUXENBERG PC
700 Broadway
New York, NY 10003
Telephone: (212) 558-5500
E-mail: jbilsborrow@weitzlux.com
- and -
Jeffrey D. Kaliel, Esq.
KALIELGOLD PLLC
1100 15th Street NW, 4th Floor
Washington, D.C. 20005
Telephone: (202) 350-4783
E-mail: jkaliel@kalielpllc.com
- and -
Sophia Goren Gold, Esq.
KALIELGOLD PLLC
950 Gilman Street, Suite 200
Berkeley, CA 94710
Telephone: (202) 350-4783
E-mail: sgold@kalielgold.com
FLUXPACE DESIGN: S.D. New York Dismisses Lopez FLSA Class Suit
--------------------------------------------------------------
Judge Andrew L. Carter, Jr., of the U.S. District Court for the
Southern District of New York grants without prejudice the
Defendants' motion to dismiss the lawsuit titled LOPEZ, Plaintiff
v. FLUXPACE DESIGN & BUILD, LLC, et al., Defendants, Case No.
1:22-cv-07605-ALC (S.D.N.Y.).
Plaintiff Juan Lopez brings this putative class action suit against
Defendants Fluxpace Design & Build LLC, Fluxpace Inc., and Victor
Sierra alleging violations of the Fair Labor Standards Act ("FLSA")
29 U.S.C. Sections 201, et seq., as well as the Unpaid Overtime,
Wage Notice and Statement, Spread-of-Hours Pay, and Failure-to-Pay
provisions of the New York Labor Laws ("NYLL").
The Defendants moved to dismiss the Plaintiff's Complaint for lack
of subject matter jurisdiction pursuant to Fed. R. Civ. P. 12(b)(1)
and for failure to state a claim pursuant to Fed. R. Civ. P.
12(b)(6).
The Plaintiff filed the Complaint in this action on Sept. 7, 2022.
The Defendants then moved to dismiss the Complaint on Jan. 20,
2023. The Defendants included an evidentiary declaration in support
of their motion on that same date. The Plaintiff filed his
opposition on Feb. 3, 2023. The Defendants filed their reply brief
on Feb. 10, 2023.
Fluxpace Design & Build LLC and Fluxpace Inc. are construction
companies owned and operated by Defendant Victor Sierra. The
Plaintiff alleges that all the Defendants had the power to hire and
fire employees, including the Plaintiff, and to determine their
wages, compensation, working conditions, and assignments. The
Plaintiff also alleges that the Defendants had combined annual
revenues of at least $500,000, and, thus, would be covered under
FLSA.
Plaintiff Juan Lopez was employed by the Defendants as a
non-managerial construction worker, foreman and manual laborer from
August 2021 to July 2022. He alleges that he worked six days per
week, 10 to 11 hours per day, totaling approximately 60 to 66 hours
per week. He alleges that he was paid a fixed salary of $200 per
day from August to September 2021, $250 per day between October and
November 2021, $220 between December 2021 and July 2022, and was
ultimately not paid any wages for his final two weeks of work.
The Plaintiff claims he was also required to work in excess of
forty hours per week but never received an overtime premium.
Finally, he alleges that he was neither provided notification of
nor presented with posted notices of information or a statement of
wages regarding required wages under the FLSA or NYLL.
Defendant Victor Sierra alleges in his declaration that the
Plaintiff was an independent contractor and managed his activities
and retained a work crew, who the Plaintiff compensated from funds
paid to him by Fluxpace. Sierra goes on to allege that the
Defendants never interacted with and were not involved in the
hiring or firing of the Plaintiff's crew, did not maintain records
of wages or hours, and that the Plaintiff managed all aspects of
the crew's work.
Finally, the declaration includes as an exhibit an untranslated
screen shot, together with an uncertified translation thereof,
which purports to show that the Plaintiff threatened to sue
Defendant Sierra for failure to pay him and his work crew.
The Court will not consider the declaration's unsupported legal
conclusions and its untranslated screen shot and the uncertified
translation thereof.
The Defendants argue that the Plaintiff does not have standing to
bring this action because he is an independent contractor and has
failed to establish that he is a nonexempt employee and, therefore,
is not entitled to the protections offered by the FLSA.
The Complaint alleges that the Defendants owned and operated the
site where the Plaintiff worked, that the Individual Defendant, Mr.
Sierra, was the owner, officer, and/or agent of the Corporate
Defendants, and that Mr. Sierra retained the power inter alia to
making hiring decisions, determine work schedules and determine pay
rates. The Complaint goes on to allege that the Plaintiff suffered
actual concrete harms, including insufficient overtime and minimum
wage pay.
Judge Carter finds that these allegations are sufficient to meet
the "low threshold" of constitutional standing.
While sufficient to establish standing, Judge Carter points out
that the Plaintiff's mere conclusory assertions, however, are
insufficient to adequately plead a claim under both the formal and
functional tests. The the cases the Plaintiff cites as supporting
denial of the Defendant's motion are also unpersuasive.
For these reasons, Judge Carter rules that the Defendant's motion
to dismiss is granted without prejudice. The Plaintiff is granted
leave to amend his Complaint within 21 days of the entry of this
Order if he so desires.
A full-text copy of the Court's Opinion & Order dated March 11,
2024, is available at https://tinyurl.com/yaet6ffr from
PacerMonitor.com.
FOR THE LOVE OF CHICKEN: Payan Sues Over Unpaid Wages
-----------------------------------------------------
Xithzel Payan, and other similarly situated v. FOR THE LOVE OF
CHICKEN WH, LLC; ERIKA DE LA TEJA; and DOES 1 to 25, inclusive,
Case No. 24STCV06184 (Cal. Super. Ct., Los Angeles Cty., March 13,
2024), is brought against the Defendants for failure to compensate
for all hours worked; failure to pay minimum wages; failure to pay
overtime; failure to provide accurate itemized wage statements;
failure to pay wages owed every pay period; failure to pay wages
when employment ends; failure to provide rest breaks; failure to
provide meal breaks; failure to reimburse business expenses;
failure to pay wages when employment ends; Private Attorneys
General Act ("PAGA"); sexual harassment in violation of Fair
Employment and Housing Act ("FEHA"); wrongful constructive
discharge in violation of Public Policy; violation of Business and
Professions Code.
The Defendants violated Labor Code because it failed to pay
Plaintiff and other similarly situated aggrieved employees for all
hours worked, including the statutory minimum wage for all hours
worked and for "off the clock" work. This is so because the
Defendants had a company policy wherein they would
disproportionately round down the number of hours worked, resulting
in "time shaving" and further resulting in aggrieved employees not
being paid for all hours worked. Furthermore, and since Plaintiff
and others regularly worked through their meal periods while "off
the clock" and while clocked out, they were not compensated for all
hours worked, which would be akin to a minimum wage violation, says
the complaint.
The Plaintiff started working at FOR THE LOVE OF CHICKEN in 2023 as
a server.
FOR THE LOVE OF CHICKEN WH, LLC is a California Limited Liability
Company, doing business in the County of Los Angeles, State of
California.[BN]
The Plaintiff is represented by:
Harout Messrelian, Esq.
MESSRELIAN LAW INC.
500 N. Central Ave., Suite 840
Glendale, CA 91203
Phone: (818) 484-6531
Facsimile: (818) 956-1983
FRESENIUS VASCULAR CARE: Gravley Files Suit in E.D. Pennsylvania
----------------------------------------------------------------
A class action lawsuit has been filed against Fresenius Vascular
Care, Inc., et al. The case is styled as Steven Gravley, Sr.,
individually and on behalf of all others similarly situated v.
Fresenius Vascular Care, Inc. d/b/a Azura Vascular Care, Case No.
2:24-cv-01148 (E.D. Pa., March 15, 2024).
The nature of suit is stated as Other P.I.
Fresenius Vascular Care, Inc. doing business as Azura Vascular Care
-- https://www.azuravascularcare.com/ -- specializes in minimally
invasive outpatient procedures for the treatment & management of a
wide range of vascular conditions.[BN]
The Plaintiffs are represented by:
Andrew Ferich, Esq.
AHDOOT & WOLFSON, PC
201 King Of Prussia Road, Suite 650
Radnor, PA 19087
Phone: (310) 474-9111
Fax: (310) 474-8585
Email: aferich@ahdootwolfson.com
FROEDTERT HEALTH: Bangalore Allowed to File 2nd Amended Complaint
-----------------------------------------------------------------
In the lawsuit captioned NITISH S. BANGALORE, Plaintiff v.
FROEDTERT HEALTH, INC., THE BOARD OF DIRECTORS OF FROEDTERT HEALTH,
INC. and FROEDTERT HEALTH, INC. BENEFIT PLAN COMMITTEE, Defendants,
Case No. 2:20-cv-00893-PP (E.D. Wis.), Chief District Judge Pamela
Pepper of the U.S. District Court for the Eastern District of
Wisconsin grants the Plaintiff leave to file a second amended
complaint.
On June 12, 2020, the Plaintiff filed a class action alleging that
the Defendants had violated the duties of loyalty and prudence
required of Employee Retirement Income Security Act-governed
defined plan fiduciaries by, among other things, failing to monitor
fees and ensure that they were reasonable, failing to monitor
investments to ensure that they were prudent, failing to monitor
the committee in charge of the plan and engaging in prohibited
transactions.
The Plaintiff filed an amended complaint on Sept. 10, 2020,
omitting the allegations of engaging in prohibited transactions. On
Oct. 26, 2020, in lieu of an answer, the Defendants filed a motion
to dismiss the Plaintiff's amended complaint under Federal Rules of
Civil Procedure 12(b)(1) and 12(b)(6). The motion relied heavily on
the Seventh Circuit's decision in Divane v. Northwestern
University, 953 F.3d 980 (2020).
On Nov. 16, 2020, the Plaintiff filed a brief in opposition,
largely focusing on what he characterized as the Defendants'
misreading of Divane. The Plaintiff's opposition brief also relied
heavily on the Supreme Court's 2015 decision in Tibble v. Edison
Int'l, 575 U.S. 523 (2015).
On Feb. 4, 2021, the Court held a hearing on the Defendants' motion
to dismiss. After hearing argument on both subject-matter
jurisdiction and the merits of the Defendants' arguments, the Court
took the motion under advisement. The hearing involved significant
argument about the applicability of Divane.
Just shy of five months later, on July 2, 2021, the Supreme Court
granted certiorari to review the Seventh Circuit's decision in
Divane (Hughes v. Northwestern University, 141 S. Ct. 2882 (Mem)
(July 2, 2021)). On Jan. 24, 2022, the Supreme Court vacated the
Seventh Circuit's decision in Divane and remanded the case for
further proceedings. The Supreme Court cited its 2015 decision in
Tibble, asserting that the "categorical rule" applied by the
Seventh Circuit is inconsistent with the content-specific inquiry
that ERISA requires and fails to take into account respondents'
duty to monitor all plan investments and remove any imprudent
ones.
On Jan. 26, 2022, the Court denied the Defendants' motion to
dismiss without prejudice, because the motion relied on the Seventh
Circuit's recently vacated decision in Divane (and other Seventh
Circuit cases that had applied similar categorical rules). The
Court ordered the Defendants to file a notice indicating whether
they either (a) need additional time to evaluate the Hughes
decision and its impact on their position in this litigation, (b)
plan to answer or otherwise respond to the amended complaint or (c)
propose some other option.
On Feb. 11, 2022, the Defendants advised the Court that they
intended to file an updated motion to dismiss, which would
supersede the previous motion to dismiss that the Court had denied
without prejudice. The Defendants proposed a briefing schedule for
their anticipated amended motion, which the Court adopted. Per the
briefing schedule, the Defendants filed an amended motion to
dismiss on March 11, 2022. The Plaintiff responded on April 8,
2022, and the Defendant replied on April 29, 2022.
Approximately four months later, on Aug. 30, 2022, the Plaintiff
filed a motion for leave to file a second amended complaint and
attached a proposed second amended complaint. The Plaintiff
explained that while the Seventh Circuit has yet to decide Divane
on remand, on Aug. 29, 2022, the Seventh Circuit decided Albert v.
Oshkosh Corp., [47 F.4th 570 (7th Cir. 2022)]. He asserted that
Albert offered guidance to litigants as to the types of factual
averments that create the kind of context that could move this
claim from possibility to plausibility in light of Hughes and
existing Seventh Circuit precedent. On Sept. 6, 2022, the
Defendants filed an opposition brief.
On March 23, 2023--approximately 14 months after the Hughes court
had vacated and remanded Divane to the Seventh Circuit--the Seventh
Circuit issued its decision in Hughes v. Northwestern University,
63 F.4th 615 (7th Cir. 2023) ("Hughes II"). On March 31, 2023, the
Defendants filed a Civil Local Rule 7(h) expedited non-dispositive
motion for leave to submit supplemental briefing regarding Hughes
II for the Court's benefit. On April 3, 2023, the Plaintiff filed
his opposition to the Defendants' expedited motion for supplemental
briefing.
But on April 12, 2023, despite having asked the Court nine days
earlier to grant his pending motion for leave to file a second
amended complaint, the Plaintiff filed a new motion for leave to
file a second amended complaint, a new proposed second amended
complaint, and notice that he was withdrawing his previous motion
for leave to file a second amended complaint and the related
proposed second amended complaint.
In his new motion for leave to file a second amended complaint, the
Plaintiff asserted that Hughes II largely superseded Albert and
clarified the pleading standard in ERISA excessive fee cases like
this one. On May 3, 2023, the Defendants filed an opposition to the
Plaintiff's new motion for leave to file a second amended
complaint.
Though the Plaintiff initially failed to identify the changes
sought by his proposed amendments with the specificity required
under Civil L.R. 15(b), he remedied this failure by identifying the
specific changes in his reply brief, Judge Pepper notes. The Court
will not deny the Plaintiff's motion to amend based on his failure
to strictly adhere to Civil L.R. 15(a) and addresses the
Defendants' futility argument.
In arguing that allowing the Plaintiff to file the proposed second
amended complaint would be futile, the Defendants assert that
contrary to the Plaintiff's contention, Hughes II did not announce
the new pleading standard but rather expressly reaffirmed Albert.
The Defendants' contention that Hughes II did not announce a new
pleading standard is difficult to reconcile with the fact that in
the Seventh Circuit's own words, Hughes II described a "newly
formulated pleading standard," Judge Pepper opines.
Allowing the Plaintiff to amend his allegations nearly four years
into the case would moot the Defendants' fully briefed amended
motion to dismiss. The Court acknowledges that this will cause
further delay and possibly some prejudice to the Defendants if they
decide to amend their motion to dismiss for a second time.
But that prejudice does not warrant denial of the Plaintiff's
motion to amend, Judge Pepper opines. The Plaintiff correctly
points out what the Defendants seem reluctant to acknowledge that
since the Plaintiff filed the initial complaint in June 2020, the
standard for pleading ERISA breach of fiduciary duty claims has
shifted.
Given that shift, Judge Pepper says the Plaintiff's request for
leave to amend the complaint is reasonable. The delay is
regrettable, but it is due in great part to the time it has taken
for the issue to become settled in the Seventh Circuit.
Because the Plaintiff has explained the changes he is making in the
proposed amended pleading, because the Court cannot conclude that
amendment would be futile and because the Plaintiff seeks leave to
amend due to a change in the law and not a lack of diligence, the
Court grants the Plaintiff's motion for leave to file his proposed
second amended complaint.
The Court orders the Clerk of Court to separately docket the
proposed second amended complaint at Dkt. No. 65-1 as the operative
complaint.
The Court denies as moot the Defendants' amended motion to dismiss
the Plaintiff's amended class action complaint. The Court denies as
moot the Defendants' Local Rule 7(h) expedited non-dispositive
motion for leave to submit supplemental briefing.
The Court orders that by the end of the day on April 12, 2024, the
Defendants must file a proposed briefing schedule for their second
amended motion to dismiss the Plaintiff's second amended
complaint.
A full-text copy of the Court's Order dated March 11, 2024, is
available at https://tinyurl.com/2p9wjef3 from PacerMonitor.com.
GENERAL MOTORS: Chicco Sues Over Erroneous Negative Driving Info
----------------------------------------------------------------
Romeo Chicco, individually and on behalf of others similarly
situated, Plaintiff v. General Motors LLC, OnStar LLC, LexisNexis
Risk Solutions Inc., Defendants, Case No. 9:24-cv-80281-DMM (S.D.
Fla., March 13, 2024) accuses the Defendants of violating the Fair
Credit Reporting Act, the Florida Deceptive and Unfair Trade
Practices Act, and Florida common law invasion of privacy.
Plaintiff Chicco brings this class action complaint to challenge
the conduct of Defendants regarding erroneous reports of derogatory
and negative driving information made without his knowing consent.
Additionally, this illegal transfer and publication of data
constitutes an invasion of privacy. As a result of Defendants'
conduct, Plaintiff suffered damages and significant emotional
distress, says the suit.
Headquartered in Detroit, MI, General Motors LLC owns and
manufactures four automobile brands, Chevrolet, GMC, Cadillac and
Buick. [BN]
The Plaintiff is represented by:
Mohammad Kazerouni, Esq.
KAZEROUNI LAW GROUO, APC
245 Fischer Ave., Suite D1
Costa Mesa, CA 92626
Telephone: (800) 400-6808
Facsimile: (800) 520-5523
E-mail: mike@kazlg.com
- and -
Ryan L. McBride, Esq.
KAZEROUNI LAW GROUP, APC
2221 Camino Del Rio S., #101
San Diego, CA 92108
Telephone: (800) 400-6808
Facsimile: (800) 520-5523
E-mail: ryan@kazlg.com
GLAD PRODUCTS: Woolard Sues Over Misleading Representations
-----------------------------------------------------------
Craig Woolard, on behalf of himself and all others similarly
situated v. THE GLAD PRODUCTS COMPANY, a Delaware Corporation, and
THE CLOROX COMPANY, a Delaware Corporation, Case No.
3:24-cv-00504-JO-BLM (S.D. Cal., March 15, 2024), is brought
against the Defendants as a result of the Defendants' false and
misleading representations of their products Glad "Recycling" trash
bags which are not recyclable.
The Defendants' products are not recyclable. Defendants
misleadingly name and otherwise label the Products "Recycling" bags
and market them using imagery that reasonable consumers understand
to indicate recyclability, even though the Products themselves are
not recyclable anywhere in the Nation and in most places, municipal
use of the Products contaminates otherwise recyclable waste.
The Defendants' "Recycling" bags are not made of recyclable
plastics. Rather, the Products are made from LDPE plastics, which
are not recycled by recycling facilities in the United States due
to their low monetary value. Thus, even if "Recycling" bags might
be recyclable in theory, the Product's labeling is still deceptive.
According to the FTC, technical recyclability does not suffice for
a recyclability claim if there is no established program available
to recycle the product.
By selling the Products nationwide with the false name "Recycling,"
other misrepresentations and accompanying deceptive imagery,
Defendants mislead reasonable consumers to believe that the
Products are both recyclable and fit for municipal use throughout
California and the United States. As a result, consumers pay an
unwarranted premium for the Products based on their perceived
recyclability reasonably believing that they are making a
sustainable choice and a positive environmental impact, says the
complaint.
The Plaintiff purchased the Glad Recycling Trash Bags from a local
retailer.
Glad and its agents manufactured, promoted, marketed, and sold the
Products at stores and retailers throughout California and the
United States.[BN]
The Plaintiff is represented by:
Manfred P. Muecke, Esq.
MANFRED, APC
600 West Broadway, Suite 700
San Diego, CA 92101
Email: mmuecke@manfredapc.com
Phone: (619) 550-4005
Fax: (619) 550-4006
GLADIATOR ENERGY: Sanders Seeks Unpaid Overtime for Supervisors
---------------------------------------------------------------
TONY SANDERS, individually and on behalf of all others similarly
situated, Plaintiff v. GLADIATOR ENERGY, LLC, Defendant, Case No.
7:24-cv-00083-DC-RCG (W.D. Tex., March 15, 2024) is a class action
against the Defendant for its failure to pay overtime wages in
violation of the Fair Labor Standards Act of 1938.
Mr. Sanders worked for Gladiator Energy as a salaried supervisor.
Gladiator Energy, LLC is a provider of oilfield services based in
Texas. [BN]
The Plaintiff is represented by:
William S. Hommel, Jr., Esq.
HOMMEL LAW FIRM PC
5620 Old Bullard Road, Suite 115
Tyler, TX 75703
Telephone: (903) 596-7100
E-mail: bhommel@hommelfirm.com
GOLFTEC MANAGEMENT: Li Suit Removed to N.D. California
------------------------------------------------------
The case captioned as Ronald Li, an individual, on behalf of
himself and on behalf of all persons similarly situated v. GOLFTEC
MANAGEMENT LLC, a Limited Liability Company, and DOES 1 through 50,
inclusive, Case No. 23-CIV-02883 was removed from Superior Court of
California, County of San Mateo, to the U.S. District Court for the
Northern District of California on March 18, 2024, and assigned
Case No. 3:24-cv-01678.
The Plaintiff's Complaint asserts claims arising out of Plaintiff's
employment with Defendant for: Violation of California Business and
& Professions Code (Unfair Competition); Violation of California
Labor Code (Unpaid Minimum Wages); Violation of California Labor
Code (Unpaid Overtime); Violation of California Labor Code (Failure
to Provide Meal Periods); Violation of California Labor Code
(Failure to Provide Rest Periods); Violation of California Labor
Code (Non-Compliant Wage Statements); Violation of California Labor
Code (Unreimbursed Business Expenses); Violation of California
Labor Code (Sick Pay Wages); Violation of California Labor Code
(Wages Not Timely Paid Upon Termination); Discrimination and
Retaliation in Violation of FEHA; Violation of Labor Code; Wrongful
Termination in Violation of Public Policy.[BN]
The Defendants are represented by:
Paul S. Cowie, Esq.
Julia G. Remer, Esq.
SHEPPARD, MULLIN, RICHTER & HAMPTON LLP
A Limited Liability Partnership
Including Professional Corporations
Four Embarcadero Center, 17th Floor
San Francisco, CA 94111-4109
Phone: 415.434.9100
Facsimile: 415.434.3947
Email: pcowie@sheppardmullin.com
jremer@sheppardmullin.com
- and -
Benjamin J. Schnayerson, Esq.
Jimmy Macias, Esq.
JACKSON LEWIS P.C.
50 California Street, 9th Floor
San Francisco, CA 94111-4615
Phone: 415.394.9400
Facsimile: 415.394.9401
Email: ben.schnayerson@jacksonlewis.com
jimmy.macias@jacksonlewis.com
GOODYEAR TIRE: Conspires to Control Tire Prices, Price Suit Claims
------------------------------------------------------------------
PERCY PRICE, individually and on behalf of all others similarly
situated, Plaintiff v. THE GOODYEAR TIRE & RUBBER COMPANY;
COMPAGNIE GENERALE DES ETABLISSEMENTS MICHELIN SCA; MICHELIN NORTH
AMERICA INC.; BRIDGESTONE CORPORATION; BRIDGESTONE AMERICAS, INC.;
CONTINENTAL AKTIENGESELLSCHAFT; CONTINENTAL TIRE THE AMERICAS, LLC;
NOKIAN TYRES PLC; NOKIAN TYRES NORTH AMERICA, INC.; NOKIAN TYRES
INC.; NOKIAN TYRES U.S. OPERATION LLC; PIRELLI & C. S.P.A; PIRELLI
TIRE LLC; HANKOOK TIRE & TECHNOLOGY CO., LTD.; HANKOOK TIRE AMERICA
CORP.; YOKOHAMA RUBBER CO., LTD.; YOKOHAMA TIRE CORPORATION; TOYO
TIRE CORPORATION; TOYO TIRE U.S.A. CORP.; KUMHO TIRE CO.; KUMHO
TIRE U.S.A.; SUMITOMO RUBBER INDUSTRIES, LTD.; SUMITOMO RUBBER
NORTH AMERICA, INC.; GITI TIRE GLOBAL TRADING PTE. LTD.; and GITI
TIRE (USA) LTD., Defendants, Case No. 1:24-cv-01981 (S.D.N.Y.,
March 15, 2024) is a class action against the Defendants for
violation of Section 1 of the Sherman Act.
The case arises from the Defendants' alleged engagement in a
conspiracy to unlawfully fix, raise, maintain, and/or stabilize the
prices of replacement tires sold in the United States. The
Defendants' anticompetitive acts had a direct, substantial, and
foreseeable effect on interstate trade or commerce by causing
prices for tires to be higher than they otherwise would be in a
competitive market. As a direct result of the Defendants'
conspiracy, the Plaintiff and Class members paid artificially
higher prices for replacement tires and thereby suffered antitrust
injury, says the suit.
The Goodyear Tire & Rubber Company is a tire manufacturer,
headquartered in Akron, Ohio.
Compagnie Generale des Etablissements Michelin SCA is a tire
manufacturer based in Clermont-Ferrand, France.
Michelin North America Inc. is a tire manufacturer headquartered in
Greenville, South Carolina.
Bridgestone Corporation is a tire manufacturer based in Tokyo,
Japan.
Bridgestone Americas, Inc. is a wholly owned subsidiary of
Bridgestone Corporation.
Continental Aktiengesellschaft is a tire manufacturer based in
Hanover, Germany.
Continental Tire the Americas, LLC is a tire manufacturer
headquartered in Fort Mill, South Carolina.
Nokian Tyres plc is a tire manufacturer headquartered in Nokia,
Finland.
Nokian Tyres North America, Inc. is a tire manufacturer
headquartered in Nashville, Tennessee.
Nokian Tyres Inc. is an indirect subsidiary of Nokian Tyres plc.
Nokian Tyres U.S. Operation LLC is an indirect subsidiary of Nokian
Tyres plc.
Pirelli & C. S.p.A is a tire manufacturer headquartered in Milan,
Italy.
Pirelli Tire LLC is a tire manufacturer based in Rome, Georgia.
Hankook Tire & Technology Co., Ltd. is a tire manufacturer
headquartered in Seoul, South Korea.
Hankook Tire America Corp. is a wholly owned subsidiary of Hankook
Tire & Technology Co., Ltd., headquartered in Nashville,
Tennessee.
Yokohama Rubber Co., Ltd. is a global tire and rubber company
headquartered in Tokyo, Japan.
Yokohama Tire Corporation is a wholly owned subsidiary of Yokohama
Rubber Co., Ltd. based in Santa Ana, California
Toyo Tire Corporation is a tire manufacturer headquartered in
Osaka, Japan.
Toyo Tire U.S.A. Corp. is a wholly owned subsidiary of Toyo Tire
Corporation headquartered in Cypress, California.
Kumho Tire Co. is a tire manufacturer headquartered in Gwangju,
South Korea.
Kumho Tire U.S.A. is a wholly owned subsidiary of Kumho Tire Co.
headquartered in Atlanta, Georgia.
Sumitomo Rubber Industries, Ltd. is a tire and rubber company
headquartered in Kobe, Japan.
Sumitomo Rubber North America, Inc. is a wholly owned subsidiary of
Sumitomo Rubber Industries, Ltd. based in Rancho Cucamonga,
California.
GITI Tire Global Trading Pte. Ltd. is a tire manufacturer
headquartered in Singapore.
Giti Tire (USA) Ltd. is a wholly owned subsidiary of GITI Tire
Global Trading Pte. Ltd. headquartered in Rancho Cucamonga,
California. [BN]
The Plaintiff is represented by:
Jeffrey J. Corrigan, Esq.
William G. Caldes, Esq.
Jeffrey L. Spector, Esq.
Cary Zhang, Esq.
SPECTOR ROSEMAN & KODROFF, P.C.
2001 Market Street, Suite 3420
Philadelphia, PA 19103
Telephone: (215) 496-0300
Facsimile: (215) 496-6611
E-mail: jcorrigan@srkattorneys.com
bcaldes@srkattorneys.com
jspector@srkattorneys.com
czhang@srkattorneys.com
- and -
David McLafferty, Esq.
MCLAFFERTY LAW FIRM, P.C.
923 Fayette Street
Conshohocken, PA 19428
Telephone: (610) 940-4000
E-mail: dmclafferty@mclaffertylaw.com
GRAND CANYON EDUCATION: Evans Files TCPA Suit in D. Arizona
-----------------------------------------------------------
A class action lawsuit has been filed against Grand Canyon
Education Incorporated, et al. The case is styled as Meredith
Evans, individually and on behalf of a class of all persons and
entities similarly situated v. Grand Canyon Education Incorporated;
Unknown Party named as: John Doe Corporation Identified as
"Education Advisors", Case No. 2:24-cv-00553-JFM (D. Ariz., March
15, 2024).
The lawsuit is brought over alleged violation of the Telephone
Consumer Protection Act for Restrictions of Use of Telephone
Equipment.
Grand Canyon Education, Inc. -- https://www.gce.com/ -- is an
educational business service provider that proudly offers our
partners top quality higher education services.[BN]
The Plaintiff is represented by:
Anthony Paronich, Esq.
PARONICH LAW, P.C.
350 Lincoln St., Suite 2400
Hingham, MA 02043
Phone: (615) 485-0018
Email: anthony@paronichlaw.com
GREATER ORLANDO PROPERTY: Anderson Files Suit in Fla. Cir. Ct.
--------------------------------------------------------------
A class action lawsuit has been filed against Greater Orlando
Property Management LLC. The case is styled as Tysheka Anderson,
and all others similarly situated v. Greater Orlando Property
Management LLC, Case No. 2024-CA-002208-O (Fla. Cir. Ct., Orange
Cty., March 13, 2024).
The case type is stated as "CA - Other."
Greater Orlando Property Management --
https://www.gopropertymgmt.com/ -- are dedicated to providing the
highest quality rentals and management services across Orange
County and Seminole County, Florida.[BN]
The Plaintiff is represented by:
Matthew Peterson, Esq.
Phone: 815-999-9130
HEALTHRIGHT 360 FOUNDATION: Evans Files Suit in Cal. Super. Ct.
---------------------------------------------------------------
A class action lawsuit has been filed against Healthright 360
Foundation. The case is styled as Aviaire Evans, individually, an
on behalf of other members of the general public similarly situated
and on behalf of other aggrieved employees pursuant to the
California Private Attorneys General Act v. Healthright 360
Foundation, Case No. CGC24613215 (Cal. Super. Ct., San Francisco
Cty., March 18, 2024).
The case type is stated as "Other Non-Exempt Complaints."
Healthright 360 Foundation -- https://www.healthright360.org/ -- is
a Charitable Organization headquartered in San Francisco, CA.[BN]
The Plaintiff is represented by:
Arby Aiwazian, Esq.
LAWYERS for JUSTICE, PC
410 Arden Ave., Ste. 203
Glendale, CA 91203-4007
Phone: 818-265-1020
Fax: 818-265-1021
Email: arby@calljustice.com
HEALTHSOURCE GLOBAL: Wins Arbitration Bid; Franklin Suit Tossed
---------------------------------------------------------------
In the lawsuit titled Isabelle FRANKLIN, et al., on behalf of all
other similarly situated employees in the State of California,
Plaintiffs v. HEALTHSOURCE GLOBAL STAFFING, INC., et al.,
Defendants, Case No. 3:23-cv-00662-AGS-DEB (S.D. Cal.), Judge
Andrew G. Schopler of the U.S. District Court for the Southern
District of California grants HealthSource's motion to compel
arbitration, and dismisses the lawsuit without prejudice.
Judge Schopler notes that the current motions in this putative
employment class action raise two key issues. First, has the
defense established the $5 million amount-in-controversy threshold
for federal jurisdiction (thereby defeating the Plaintiffs' motion
to remand to state court)? Second, do valid arbitration agreements
cover all of plaintiffs' claims? The Court answers both questions
in the affirmative. Thus, the remand motion is denied, and the case
is dismissed in favor of arbitration.
Plaintiffs Isabelle Franklin and Siera Haboc are nurses, who worked
for Defendant HealthSource Global Staffing, Inc., as fill-in
strikebreakers. Those seeking work through HealthSource use its
secure online portal to nominate themselves for short-term
assignments. After self-nomination, applicants are presented with
various "pre-employment" documents, including the arbitration
agreement at issue here. Applicants need not sign this agreement to
be considered for assignments. If applicants do sign, HealthSource
does not request that they sign it again for later assignments,
although they may do so.
Plaintiff Franklin created an account on the HealthSource portal in
2010. On May 1, 2018, she logged in and electronically signed an
arbitration agreement that covered all disputes arising from past
and future employment relationships with HealthSource. Franklin
says she was "hired" in 2019. Per HealthSource, she worked a total
of four assignments.
By contrast, Plaintiff Haboc created her HealthSource account on
May 6, 2021, and she logged in and signed the arbitration agreement
on Aug. 9, 2021. Haboc worked only a single assignment later in
2021. In late 2022, both purport to have "resigned" from
HealthSource by email.
Soon thereafter, the Plaintiffs brought this putative class action
against HealthSource in state court, alleging multiple
wage-and-hour claims, as well as unfair business practices.
HealthSource removed the case here.
The Plaintiffs move to remand the case to state court, while
HealthSource seeks an order compelling arbitration, dismissing or
alternatively staying the case, and striking the class claims.
The Plaintiffs seek remand on four separate theories: (1) removal
was untimely; (2) HealthSource is forum shopping; (3) HealthSource
inflated the class size and, thus, the amount in controversy; and
(4) HealthSource's assumptions are baseless, unreasonable, and
speculative.
Judge Schopler holds that removal at this preliminary stage raises
no concerns about these warned-of sharp practices. Hence, the
Plaintiffs' request for remand on this basis is denied. Judge
Schopler adds that the forum-shopping accusations don't support
remand, let alone the requested sanctions.
In sum, Judge Schopler says, if the Plaintiffs' legal arguments are
successful, their class will include many who signed arbitration
agreements (albeit later deemed invalid). Thus, they cannot
reasonably fault the defense for considering damages from these
potential class members to be "at stake" in the litigation.
Finally, the Plaintiffs criticize HealthSource's damages
assumptions regarding wages due for company-mandated transportation
time, as well as "waiting-time penalties" for willful failure to
pay wages, among other claims.
Because the Court finds the jurisdictional threshold is met on the
waiting-time claims alone, it need not address the Defendant's
other arguments relating to the amount in controversy. Accordingly,
the Plaintiffs' remand motion is denied.
With respect to its Motion to Compel Arbitration, Judge Schopler
finds that HealthSource has carried its burden to prove the
existence of a valid agreement to arbitrate, and that it
encompasses the disputes at issue. HealthSource produced two
undisputed arbitration agreements electronically signed by Franklin
and Haboc on May 1, 2018, and Aug. 9, 2021, respectively.
The agreements also forbid both HealthSource and the Plaintiffs
from asserting class action or representative action claims against
the other in arbitration or otherwise. Judge Schopler notes that
the foregoing language covers all 11 claims, since all are grounded
in the Plaintiffs' employment relationship(s) with HealthSource.
The Plaintiffs do not dispute this characterization of their
claims.
The Plaintiffs resist arbitration on five different grounds. None
of their challenges gives rise to a genuine dispute of material
fact as to whether the arbitration agreements are valid and
binding, Judge Schopler holds.
Put simply, Judge Schopler says, the Plaintiffs argue that the
hypothetical existence of other agreements--which they probably did
not sign, and which may have had carve-out language--should defeat
HealthSource's attempt to enforce an arbitration agreement they did
sign, and which covered all past and future work assignments.
The Court declines to take such a broad inferential leap. As a
result, the Court need not address the Plaintiffs' "lack of mutual
assent" argument, which is premised on the hypothetical existence
of these multiple, signed, conflicting arbitration agreements.
The Plaintiffs seek to void the arbitration agreement as
unconscionable. Judge Schopler finds that if there is any evidence
of procedural unconscionability, it appears minimal. Nevertheless,
because HealthSource both drafted the agreement and likely
possessed superior bargaining power, the Court will continue the
analysis and assess substantive unconscionability.
In sum, Judge Schopler finds that the Plaintiffs' arguments are
unavailing. The Court discerns no "substantial degree of
unfairness" in this arbitration agreement that might raise concerns
about substantive unconscionability.
Judge Schopler also finds that HealthSource has preserved its right
to arbitration. Because HealthSource has met its burden of showing
a valid and binding arbitration agreement governs this case, and
the Plaintiffs have not proven the contrary, the motion to compel
arbitration is granted.
HealthSource also moves to dismiss or to stay this matter pending
arbitration. Because all claims here are to be arbitrated, the
Court dismisses this action without prejudice.
The Court orders as follows:
1. Plaintiffs' remand motion is denied;
2. HealthSource's motions to compel arbitration and dismiss
are granted. The individual claims in the complaint are
referred to arbitration, and the case is dismissed without
prejudice;
3. HealthSource's motions to strike class claims and stay the
action are denied as moot;
4. HealthSource's motion for judicial notice of a California
trial-court order is granted;
5. The Clerk is directed to close this case.
A full-text copy of the Court's Order dated March 11, 2024, is
available at https://tinyurl.com/ytvtrc3y from PacerMonitor.com.
HITACHI RAIL STS: Turgut Suit Removed to D. Massachusetts
---------------------------------------------------------
The case captioned as Volkan Turgut, on behalf of himself and
others similarly situated v. HITACHI RAIL STS USA, INC., Case No.
2484CV00474 was removed from the Superior Court for the
Commonwealth of Massachusetts, Suffolk County, to the U.S. District
Court for the District of Massachusetts on March 18, 2024, and
assigned Case No. 1:24-cv-10660.
In his Complaint, Plaintiff claims that Defendant violated chapter
149 of the Massachusetts General Laws by failing to pay Plaintiff
all payroll wages due to him and similarly situated class members
within the timeframe established in the Massachusetts Wage Act.
Plaintiff claims he is entitled to "an award of damages for all
wages and other losses to which Plaintiff and similarly situated
employees are entitled, statutory trebling of all wage-related
damages," and "attorneys' fees, costs, and interest."[BN]
The Defendants are represented by:
Jeffrey S. Shapiro, Esq.
Zinnia K. Khan, Esq.
FISHER & PHILLIPS LLP
200 State Street, 7th Floor
Boston, MA 02109
Phone: (617) 722-0044
Fax: (617) 532-5899
Email: jsshapiro@fisherphillips.com
zkhan@fisherphillips.com
HOME DEPOT: Fails to Pay Proper Wages, Bermudez Alleges
-------------------------------------------------------
WILLIAM BERMUDEZ, individually and on behalf of all others
similarly situated, Plaintiff v. HOME DEPOT, INC., Defendant, Case
No. 240301696 (Pa. Com. Pl., March 14, 2024) seeks relief under the
Philadelphia Fair Workweek Employment Standards ("Fair Workweek
Law").
According to the Plaintiff in the complaint, the Fair Workweek Law
require retail, hospitality, and fast-food employers to provide
their employees with predictable schedules with advance notice,
sufficient time between shifts, and pathways to full-time
employment. The Defendant violated the Fair Workweek Law by failing
to provide written notice of work schedules with at least 10 or
14-days' notice, changing employees' schedules at the last minute,
failing to provide sufficient time between shifts, and failing to
offer new shifts to current employees before hiring new employees,
says the suit.
HOME DEPOT, INC. is a home improvement retailer. The Company offers
wide range of building materials, home improvement, lawn, and
garden products, as well as provides DYI ideas, installation,
repair, and other services. [BN]
The Plaintiff is represented by:
Ryan Allen Hancock, Esq.
WILLIG, WILLIAMS & DAVIDSON
1845 Walnut Street, 24th Floor
Philadelphia, PA 19103
Telephone: (215) 656-3679
Email: rhancock@wwdlaw.com
HP PELZER: Fails to Pay Proper Wages, Baldwin Suit Says
-------------------------------------------------------
TAMARA BALDWIN, individually and on behalf of all others similarly
situated, Plaintiff v. HP PELZER AUTOMOTIVE SYSTEMS, INC.,
Defendant, Case No. 2:24-cv-10660-PDB-CI (E.D. Mich., March 14,
2024) seeks to recover from the Defendants unpaid wages and
overtime compensation, interest, liquidated damages, attorneys'
fees, and costs under the Fair Labor Standards Act.
Plaintiff Baldwin was employed by the Defendant as a operator.
HP PELZER AUTOMOTIVE SYSTEMS, INC. produces automotive parts. The
Company manufactures engine trunk, interior, exterior acoustic
systems, and trim components. [BN]
The Plaintiff is represented by:
Matthew S. Grimsley, Esq.
Anthony J. Lazzaro, Esq.
Lori M. Griffin, Esq.
THE LAZZARO LAW FIRM, LLC
The Heritage Building, Suite 250
34555 Chagrin Boulevard
Moreland Hills, OH 44022
Telephone: (216) 696-5000
Facsimile: (216) 696-7005
Email: matthew@lazzarolawfirm.com
anthony@lazzarolawfirm.com
lori@lazzarolawfirm.com
HUTCHINSON ANTIVIBRATION: Robinson Sues Over Unpaid Overtime
------------------------------------------------------------
Maurice Robinson, individually and on behalf of all others
similarly situated v. HUTCHINSON ANTIVIBRATION SYSTEMS, INC., a
Michigan corporation, Case No. 1:24-cv-00258 (E.D. Mich., March 12,
2024), is brought to recover unpaid overtime compensation,
liquidated damages, attorney's fees, costs, and other relief as
appropriate under the Fair Labor Standards Act ("FLSA").
The Plaintiff's base hourly rate of pay is $21.25. In addition to
the base rate of pay, Defendant incorporated various routine and
non-discretionary bonuses into its payment structure. For example,
Defendant promised its hourly employees shift premium pay,
attendance bonuses, and other forms of non-discretionary
remuneration.
Throughout Plaintiff's employment with Defendant, on occasions
where he worked certain shifts, he earned a shift premium.
Throughout Plaintiff's employment with Defendant, Plaintiff was
eligible for and received an attendance bonus and other
non-discretionary remuneration. As non-exempt employees,
Defendant's hourly employees were entitled to full compensation for
all overtime hours worked at a rate of 1.5 times their "regular
rate" of pay, says the complaint.
The Plaintiff has been employed with Defendant since September 2023
as a non-exempt mold operator.
Hutchinson Antivibration Systems, Inc. is a Michigan
corporation.[BN]
The Plaintiff is represented by:
Jesse L. Young, Esq.
SOMMERS SCHWARTZ, P.C.
141 E. Michigan Avenue, Suite 600
Kalamazoo, MI 49007
Phone: (269) 250-7500
Email: jyoung@sommerspc.com
- and -
Kevin J. Stoops, Esq.
SOMMERS SCHWARTZ, P.C.
One Town Square, 17th Floor
Southfield, MI 48076
Phone: (248) 355-0300
Email: kstoops@sommerspc.com
- and -
Jonathan Melmed, Esq.
Laura Supanich, Esq.
MELMED LAW GROUP, P.C.
1801 Century Park East, Suite 850
Los Angeles, CA 90067
Phone: (310) 824-3828
Email: jm@melmedlaw.com
lms@melmedlaw.com
HYUNDAI MOTOR: Russo Sues Over Genesis Sedan's Defective Paint
--------------------------------------------------------------
GAETANO RUSSO, individually and on behalf of all others similarly
situated, Plaintiff v. HYUNDAI MOTOR AMERICA, Defendant, Case No.
2:24-cv-01914-NJC-ARL (E.D.N.Y., March 15, 2024) is a class action
against the Defendant for violation of New York General Business
Law and breaches of implied warranty of merchantability and
Magnuson Moss Warranty Act.
The case arises from the Defendant's design, manufacturing,
marketing, and selling of the Hyundai and Genesis automobiles,
including the 2013 Hyundai Genesis 3.8 Sedan, with defective paint
and/or clear coat. The paint and/or clear coat on the Class
Vehicles were defective, in that they were of poor quality and/or
not properly or adequately applied, which caused (1) the clear coat
to weaken and/or deteriorate and (2) the paint to oxidize, become
discolored, and peel off. As a result of the Defendant's false and
misleading representations, the Class Vehicles are sold at premium
prices, approximately no less than $34,200, excluding tax and
sales, says the suit.
Hyundai Motor America is an automobile manufacturer based in
California. [BN]
The Plaintiff is represented by:
Spencer Sheehan, Esq.
Sheehan & Associates P.C.
60 Cuttermill Rd., Ste. 412
Great Neck, NY 11021
Telephone: (516) 268-7080
E-mail: spencer@spencersheehan.com
IKEA US RETAIL: Zhang Sues Over False and Unfair Advertising
------------------------------------------------------------
Bo Zhang, individually and on behalf of all others similarly
situated v. IKEA US RETAIL LLC and IKEA NORTH AMERICA SERVICES,
LLC, Case No. 3:24-cv-01641 (N.D. Cal., March 15, 2024), is brought
to redress Defendant's misconduct of false advertising, unfair,
deceptive, and/or fraudulent business practices with the
Defendant's Class Bed which contained defects.
Despite this apparent transparency as to the quality of its goods
or truthfulness of its advertising, Ikea has misrepresented the
materials used in the construction of its Hemnes Daybed and Brimnes
Daybed frames (the "Class Beds"). Rather than being built of solid
wood, as floor models, catalogues, and website descriptions
suggest, Ikea constructs the Class Bed frames with comb, or finger,
joints, which do not provide the same structural support that a
solid piece of wood does (the "Comb Joint Defect" or "Defect").
As a result of the misrepresentation, owners of the Class Beds
received a product with less structural integrity than they paid
for, and rightly expected. Worse yet, because each board that makes
up the bed frame is assembled using comb joints, repairs would only
constitute temporary fixes because the replacement boards will
ultimately fail as well.
Ikea knew, and/or was on notice of the fact, that its Class Beds
were constructed using comb joints that combined two or more pieces
of wood, rather than being one solid piece. Nevertheless, Ikea
advertised the Class Beds as having a base constructed of "solid
pine," to suggest the Class Beds had the structural integrity a
reasonable consumer would expect from solid wood.
If Plaintiff and/or other Class members knew of the
misrepresentation at the time of purchase, they would not have
bought or financed the Class Beds or would have paid substantially
less for them. Plaintiff and other Class members were denied the
benefit of the bargain in connection with their purchases or
financing of the Class Beds, says the complaint.
The Plaintiff purchased a "HEMNES Daybed frame with 3 drawers,
gray, Twin," or the Class Bed, on September 3, 2023.
Ikea designs and sells ready-to-assemble furniture, kitchen
appliances, home decorations, home accessories, and various other
home goods and service.[BN]
The Plaintiff is represented by:
Robert Mackey, Esq.
LAW OFFICES OF ROBERT MACKEY
16320 Murphy Road
Sonora, CA 95370
Phone: (412) 370-9110
Email: bobmackeyesq@aol.com
- and -
Nicholas A. Migliaccio, Esq.
Jason S. Rathod, Esq.
MIGLIACCIO & RATHOD LLP
412 H St. NE, Suite 302
Washington, D.C. 20002
Phone: (202) 470-3520
Facsimile: (202) 800-2730
Email: nmigliaccio@classlawdc.com
jrathod@classlawdc.com
INSOMNIA COOKIES: Court Dismisses Lee's Collective & Class Claims
-----------------------------------------------------------------
Judge Frank P. Geraci, Jr., of the U.S. District Court for the
Western District of New York dismisses the collective action and
class action claims asserted in the lawsuit titled JOSEPH LEE, on
his own behalf and on behalf of others similarly situated,
Plaintiff v. INSOMNIA COOKIES LLC, KRISPY KREME INC., SERVE U
BRANDS, INC., and SETH BERKOWITZ, Defendants, Case No.
6:23-cv-06321-FPG (W.D.N.Y.).
Plaintiff Joseph Lee brings this action against Defendants INSOMNIA
COOKIES LLC; KRISPY KREME INC.; SERVE U BRANDS, INC.; and SETH
BERKOWITZ alleging several violations of the Fair Labor Standards
Act ("FLSA") and the New York Labor Law ("NYLL"). The Plaintiff
brings his claims individually and on behalf of a class of other
employees similarly situated as a collective action under the FLSA
and as a class action under Federal Rule of Civil Procedure 23.
The Defendants bring the present motion for partial summary
judgment to dismiss the collective action and class claims. For the
reasons stated in this Decision and Order, the Defendants motion
for partial summary judgment is granted and the collective action
and class action claims are dismissed.
On March 6, 2019, the Plaintiff completed the Insomnia Cookies
onboarding process at its store location on Mount Hope Avenue in
Rochester, New York. The onboarding process consisted of reviewing
and signing various company policies, including the MEDIATION AND
CLASS ACTION WAIVER AGREEMENT, and was conducted through a
third-party digital portal called EfficientHire.
Judge Geraci notes that there is no genuine dispute as to whether
the Plaintiff signed the Waiver Agreement. The question the Court
must address is whether the Waiver Agreement is enforceable against
the Plaintiff, and if enforceable, whether it precludes him from
bringing class and collective action claims in this case. The
Plaintiff argues that the Waiver Agreement is not enforceable
against him because it is unconscionable.
The Court disagrees with the Plaintiff's unconscionability argument
but will begin by addressing whether the Waiver Agreement as
written precludes the class and collective action claims brought in
this case.
The Plaintiff brings the following claims in this action: (i)
illegal retention of tips in violation of the FLSA and NYLL; (ii)
failure to pay minimum wage and wage theft in violation of FLSA and
NYLL; (iii) failure to provide a "time of hire" wage notice in
violation of the NYLL; (iv) failure to provide wage statements in
violation of NYLL; and (v) failure to pay deductible costs of
operating an automobile for business purposes.
Judge Geraci finds that each of the Plaintiff's claims either
directly invokes the FLSA, or if not, the claim invokes the NYLL,
which addresses the "same or similar subject matter" as the FLSA.
The last claim does not directly invoke either statute, but since
the Plaintiff alleges a failure to pay reimbursable expenses, the
Court interprets that claim as alleging a compensation claim.
Altogether, each of the Plaintiff's claims allege a dispute
regarding compensation or a violation of the FLSA or another state
statute addressing the same or similar subject matter.
Therefore, Judge Geraci holds, all the claims brought by the
Plaintiff in this case are covered by the Waiver Agreement.
Having already determined that the Waiver Agreement covers claims
such as those brought in this case, Judge Geraci says it
necessarily follows that the Waiver Agreement precludes the class
and collective action claims brought in this case.
Judge Geraci opines that the Plaintiff does not put forth any
arguments of substantive unconscionability and could not because a
contractual proscription against class actions, such as contained
in the agreements, is neither unconscionable nor violative of
public policy.
Because the Plaintiff has failed to demonstrate that the Waiver
Agreement is unconscionable, the Court must enforce the Waiver
Agreement against the Plaintiff. Here, the Waiver Agreement
prohibits class and collective actions pursuing claims of the type
brought in this case. Accordingly, having signed and agreed to the
terms of the Waiver Agreement, the Plaintiff may not bring the
class and collective action claims asserted in this case.
For these reasons, the Court grants the Defendants' motion for
partial summary judgment, and dismisses the Plaintiff's class and
collective action claims asserted in the complaint.
A full-text copy of the Court's Decision and Order dated March 11,
2024, is available at https://tinyurl.com/5ynr6zzs from
PacerMonitor.com.
INSURANCE SOLUTIONS: Bond Files TCPA Suit in N.D. Georgia
---------------------------------------------------------
A class action lawsuit has been filed against Insurance Solutions
Group of Utah, Inc. The case is styled as Joseph Bond, individually
and on behalf of all others similarly situated v. Insurance
Solutions Group of Utah, Inc. doing business as: Lambert Insurance
Services, Case No. 1:24-cv-01045-AT (N.D. Ga., March 10, 2024).
The lawsuit is brought over alleged violation of the Telephone
Consumer Protection Act for Restrictions of Use of Telephone
Equipment.
Insurance Solutions Group of Utah, Inc. --
https://www.lambert-ins.com/sample-page/ -- is an insurance agency
in Murray, Utah.[BN]
The Plaintiff is represented by:
Anthony Paronich, Esq.
PARONICH LAW, P.C.
350 Lincoln St., Suite 2400
Hingham, MA 02043
Phone: (615) 485-0018
Email: anthony@paronichlaw.com
- and -
Steven Howard Koval, Esq.
THE KOVAL FIRM, LLC
Building 15, Suite 120
3575 Piedmont Rd.
Atlanta, GA 30305
Phone: (404) 513-6651
Fax: (404) 549-4654
Email: Steve@KovalFirm.com
INTERNATIONAL PAPER: Maldonado Suit Removed to E.D. California
--------------------------------------------------------------
The case captioned as Amber Maldonado, on behalf of herself and
current and former aggrieved employees v. INTERNATIONAL PAPER
COMPANY; and DOES 1 to 100, inclusive, Case No.
STK-CV-UOE-2024-0000528 was removed from the Superior Court of
California, County of San Joaquin, to the U.S. District Court for
the Eastern District of California on March 12, 2024, and assigned
Case No. 2:24-cv-00767-AC.
The Complaint purports to assert seven categories of labor code and
wage order violations against IP, each grouped under a single cause
of action for violation of California Labor Code, stemming from the
employment of Plaintiff and similarly situated, aggrieved
employees. The Complaint seeks penalties under PAGA for Labor Code
violations including unpaid minimum wages; unpaid overtime wages;
meal period violations; rest period violations; failure to timely
pay wages earned; wage statement violations; and failure to pay all
wages upon separation of employment.[BN]
The Defendants are represented by:
Danielle Hultenius Moore, Esq.
Aaron F. Olsen, Esq.
Christopher M. Champine, Esq.
FISHER & PHILLIPS LLP
4747 Executive Drive, Suite 1000
San Diego, CA 92121
Phone: (858) 597-9600
Facsimile: (858) 597-9601
Email: dmoore@fisherphillips.com
aolsen@fisherphillips.com
cchampine@fisherphillips.com
INVESTORPLACE MEDIA: Loses Bid to Dismiss Amended Hill Complaint
----------------------------------------------------------------
Judge Kenneth D. Bell of the U.S. District Court for the Western
District of North Carolina, Statesville Division, denies the
Defendant's motion to dismiss the Plaintiff's amended complaint in
the lawsuit captioned COURTNEY HILL, Plaintiff v. INVESTORPLACE
MEDIA, LLC, Defendant, Case No. 5:23-cv-00111-KDB-DCK (W.D.N.C.).
On Jan. 6, 2022, Plaintiff Courtney Hill began receiving text
messages from Defendant InvestorPlace, an independent financial
research firm that provides subscription-based financial analysis
and investment services. The Plaintiff alleges he had opted out of
text alerts from InvestorPlace on July 22, 2021, and received a
text message that same day confirming that the Plaintiff would be
"unsubscribed from all text messages from InvestorPlace" and
"receive no additional messages."
Following this exchange, the text messages from InvestorPlace had
ceased for approximately six months. However, in January 2022, they
resumed. The Plaintiff received additional text messages in
December 2022, January 2023, and April 2023.
The text messages from InvestorPlace provided "cryptocurrency
alerts," notifications of investor informational events, and links
to articles and stock recommendations published by the Defendant.
Importantly, the Plaintiff alleges that most of the text messages
he received contain a link that directs the viewer to a specific
page of the Defendant's website hosting the briefing or article
discussed. The rest simply urge the recipient to visit the
Defendant's website for more details.
In short, the Plaintiff alleges that the Defendant sought to profit
by sending these unsolicited text messages because people are
persuaded to visit the Defendant's website and purchase
subscriptions.
The Plaintiff filed his putative class action Complaint in
September 2023, alleging that the Defendant's unsolicited text
messages violated the Telephone Consumer Protection Act, 47 U.S.C.
Section 227, et seq. ("TCPA" or the "Act")). After the Defendant
filed a motion to dismiss, the Plaintiff filed his Amended
Complaint.
In response to the Amended Complaint, the Defendant filed its
Motion to Dismiss Plaintiff's Amended Complaint, which is now
before the Court and ripe for review.
The lone issue raised by the Defendant in this motion is whether
the Plaintiff has plausibly alleged the text messages he received
meet the regulatory definition of "telemarking." InvestorPlace
argues that the text messages do not "on their face" encourage
recipients to purchase anything and its self-described "general
participation in commercial activity" cannot establish that any
text messages sent by the Defendant were for the purpose of
encouraging a commercial transaction.
The Plaintiff responds that the Defendant's definition of
telemarking is erroneously "myopic" and that the text messages
constitute telemarketing because they were intended to promote the
Defendant's paid products/services despite nominally offering
"free" resources. The Plaintiff has alleged that although the text
messages purport to offer free advice, they are in fact a product
"pitch;" the purpose of which is to call attention and persuade
consumers to purchase the Defendant's investment analysis
services.
Judge Bell finds that the Plaintiff has plausibly alleged that the
text messages offering investment advice were a pitch meant to draw
recipients to the Defendant's website where they presumably would
be encouraged to purchase a subscription. Accordingly, the Court
finds these text messages do not merely provide informational
content but instead plausibly direct the recipient to specific
websites that provide free investment advice as a part of an effort
to market the purchase of a subscription from InvestorPlace.
In other words, Judge Bell opines that this is not the rare case in
which free products are distributed via text without hope of
financial gain. Thus, the Court finds these text messages were
plausibly sent for the purpose of encouraging the purchase or
rental of, or investment in, property, goods, or services.
Therefore, having found that the challenged text messages plausibly
meet the regulatory definition of telemarketing, the Court denies
the Defendant's Motion to Dismiss Plaintiff's Amended Complaint.
The case will proceed toward a decision on the merits of the
Plaintiff's claim in the absence of a voluntary resolution of the
dispute among the parties.
A full-text copy of the Court's Order dated March 11, 2024, is
available at https://tinyurl.com/yhy7ed4v from PacerMonitor.com.
J RITTER LAW: Bid for Judgment on Pleadings in Church Suit Denied
-----------------------------------------------------------------
Judge Michael A. Shipp of the U.S. District Court for the District
of New Jersey denies Defendant FedChex Recovery LLC's Motion for
Judgment on the Pleadings in the lawsuit entitled HUNTER J. CHURCH,
individually and on behalf of those similarly situated, Plaintiff
v. J RITTER LAW P.C., et al., Defendants, Case No.
3:23-cv-01709-MAS-RLS (D.N.J.).
The Plaintiff, a New Jersey resident, brings this action under the
Fair Debt Collection Practices Act ("FDCPA") against Defendants J.
Ritter Law, PC (the "Ritter Firm"), Jonathan Ritter, Esq.
("Attorney Ritter"), and FedChex. The Ritter Firm is a New
York-based law firm dedicated to the collection of outstanding
receivables and defaulted accounts. Attorney Ritter practices law
through the Ritter Firm. FedChex is a California limited liability
corporation that regularly collects debts for others and, in
connection with its collection of such debts, hires attorneys or
law firms, such as the Ritter Firm.
In the fall of 2017, the Plaintiff, then a student at Bergen County
College, obtained two textbooks from the college's bookstore. Years
later, on Feb. 22, 2022, the Ritter Firm sent the Plaintiff a
letter (the "Initial Letter") that stated that FedChex hired the
Ritter Firm to collect a debt owed to the Bookstore.
The Initial Letter further stated that the Defendants sought to
collect $466.77 from Plaintiff. This amount came from two debts
with a combined principal amount of $171.78 and another $294.99 in
unexplained fees. The Initial Letter gave the Plaintiff 30 days,
ending on March 30, 2022, to dispute the debt in writing.
Although the Complaint alleges that the debts included $299.99 in
fees, a closer reading of the validation notices attached to the
Complaint reveals that the fees only amounted to $294.99. The
Plaintiff mailed the Ritter Firm a written dispute on March 21,
2022. Before receiving the Plaintiff's written dispute, however,
and within the 30-day window the Plaintiff had to respond, the
Ritter Firm sent him another letter (the "Follow-Up Letter"), which
appeared to be from Attorney Ritter, that stated that he failed to
respond to the Initial Letter. Despite the Follow-Up Letter
appearing to have been sent by Attorney Ritter, the letter stated
that it was mailed without any meaningful attorney involvement.
Sometime after the Follow-Up Letter was sent, the Ritter Firm
received the Plaintiff's written dispute. The Ritter Firm, however,
never responded to the Plaintiff's written dispute; instead, one
month later, the Ritter Firm emailed the Plaintiff stating it had
closed out the Plaintiff's file with its office.
The Plaintiff claims that this correspondence from the Ritter Firm
left him confused, anxious, and upset as to his rights, what his
liability might be for the debt, and, if liable, what amount he
might be legally obligated to pay.
The Plaintiff commenced this lawsuit on Feb. 21, 2023, in New
Jersey Superior Court as a class action on behalf of all persons to
whom a letter was mailed, which was dated on or after Feb. 19,
2022. He alleges that the Defendants violated numerous provisions
of the FDCPA by: (1) harassing him; (2) using false, deceptive, or
misleading representations in the Initial Letter and Follow-Up
Letter; (3) falsely representing that the Initial Letter and
Follow-Up Letter came from an attorney; and (4) inconsistently
communicating with him during the 30-day validation period.
The Court acknowledges that its previous opinion stated that the
Plaintiff filed the Complaint on Feb. 23, 2023. The Court clarifies
that the Plaintiff filed the Complaint on Feb. 21, 2023.
On March 27, 2023, FedChex removed the case from the Superior
Court. The Plaintiff then moved to remand back to state court,
which the Court denied. On Aug. 11, 2023, FedChex filed the instant
Motion for Judgment on the Pleadings. The Plaintiff opposed, and
FedChex replied.
FedChex makes four arguments in support of granting judgment on the
pleadings: (1) the Complaint is barred by the FDCPA's statute of
limitations; (2) the Plaintiff fails to plead the existence of a
debt; (3) the Plaintiff fails to plead that FedChex is vicariously
liable for the Ritter Firm's conduct; and (4) the Complaint is a
"shotgun pleading" that the Court should dismiss.
As a threshold matter, FedChex argues that the Complaint is
time-barred by the FDCPA's statute of limitations. The FDCPA has a
one-year statute of limitations, which begins to run from the date
on which the violation occurs. Both parties agree that the statute
of limitations began running on Feb. 23, 2022, the day after the
Ritter Firm sent the Plaintiff the Initial Letter.
FedChex, however, claims that the Plaintiff's Complaint is untimely
because he did not file suit until Feb. 27, 2023. Not so, Judge
Shipp points out. The Plaintiff filed the Complaint on Feb. 21,
2023, which is timely.
Second, FedChex argues that judgment on the pleadings is warranted
because the Plaintiff has failed to plead the existence of a debt,
as defined under the FDCPA.
The Court finds that the Plaintiff's allegations regarding the debt
are well-pleaded. As such, the Court finds that the Plaintiff has
plausibly pled the existence of a debt within the FDCPA.
Third, FedChex argues that the Plaintiff has failed to plead that
it is vicariously liable for the Ritter Firm's conduct, because:
(1) the Plaintiff failed to plead that FedChex is a debt collector;
and (2) the Plaintiff failed to plead that FedChex exercised
control over the Ritter Firm.
Judge Shipp notes that FedChex, in its answer, admits that it
regularly collects debt for others, and in connection with its
collection of such debts, hires attorneys or law firms, such as
Ritter Firms to collect those debts. FedChex, in other words,
agrees with the Plaintiff that it qualifies as a debt collector
under the FDCPA. Accordingly, the Court rejects FedChex's
contention that the pleadings fail to adequately plead FedChex is a
debt collector, and finds that FedChex has failed to demonstrate
that the Plaintiff inadequately pled vicarious liability for the
Ritter Firm's conduct.
Finally, FedChex argues that the Court should dismiss the
Plaintiff's Complaint because it is an impermissible "shotgun
pleading." Specifically, FedChex argues that the complaint is a
shotgun pleading because it does not separate into a different
count each cause of action or claim for relief. Indeed, Judge Shipp
notes, the Complaint states only one cause of action for a
violation of the FDCPA and lists twelve provisions of the Act that
the Defendants allegedly violated.
The Court disagrees with FedChex's assertion that the Plaintiff
cannot allege multiple FDCPA violations under one cause of action.
The Plaintiff, in other words, seeks relief based on one set of
facts surrounding FedChex's attempt to collect a debt. Under these
facts, Judge Shipp explains, FedChex's conduct allegedly violated
the FDCPA in multiple ways. The Court, therefore, is unconvinced
that the Plaintiff must state each individual FDCPA violation in
its own separate cause of action. Accordingly, the Court will not
dismiss the Plaintiff's Complaint as a shotgun pleading.
A full-text copy of the Court's Memorandum Opinion dated March 11,
2024, is available at https://tinyurl.com/54bcprbj from
PacerMonitor.com.
JAAV INC: Wahab Files ADA Suit in S.D. New York
-----------------------------------------------
A class action lawsuit has been filed against Jaav, Inc. The case
is styled as Angela Wahab, on behalf of herself and all others
similarly situated v. Jaav, Inc., Case No. 1:24-cv-01959 (S.D.N.Y.,
March 15, 2024).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
JAAV, INC. was established on May 19 2008 as a domestic business
corporation.[BN]
The Plaintiff is represented by:
Mark Rozenberg, Esq.
STEIN SAKS, PLLC
1 University Plaza, Ste. 620
Hackensack, NJ 07601
Phone: (201) 282-6500
Email: mrozenberg@steinsakslegal.com
JANIE AND JACK: Chong-Vizcarra Files Suit in Cal. Super. Ct.
------------------------------------------------------------
A class action lawsuit has been filed against Janie and Jack, LLC.
The case is styled as Lisa Chong-Vizcarra, individually and on
behalf of all others similarly situated v. Janie and Jack, LLC,
Case No. CGC24613020 (Cal. Super. Ct., San Francisco Cty., March
11, 2024).
The case type is stated as "Business Tort."
Janie and Jack -- https://www.janieandjack.com/ -- is a children's
clothing brand founded in 2002 in San Francisco, California.[BN]
The Plaintiff is represented by:
Sarah N. Westcot, Esq.
BURSOR & FISHER, P.A.
701 Brickell Ave., Ste. 1420
Miami, FL 33131-2800
Phone: 305-330-5512
Email: swestcot@bursor.com
JC WINE & SPIRITS: Black Files ADA Suit in E.D. New York
--------------------------------------------------------
A class action lawsuit has been filed against JC Wine & Spirits,
Inc. The case is styled as Jahron Black, on behalf of himself and
all others similarly situated v. JC Wine & Spirits, Inc., Case No.
1:24-cv-01744-MMH (E.D.N.Y., March 8, 2024).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
JC Wine -- https://jcwinespirits.com/ -- offers the finest
selection of wines, carefully chosen to meet market requirements
from both Old World.[BN]
The Plaintiff is represented by:
Mars Khaimov, Esq.
14749 71st Ave.
Flushing, NY 11367
Phone: (917) 915-7415
Email: mars@khaimovlaw.com
JEWISH COMMUNITY SERVICES: Infante Suit Removed to S.D. Florida
---------------------------------------------------------------
The case captioned as Lisset Infante, and all others similarly
situated v. JEWISH COMMUNITY SERVICES OF SOUTH FLORIDA, INC., Case
No. 2024-031271-CC-24 was removed from the County Court in and for
Miami-Dade, Florida, to the U.S. District Court for the Southern
District of Florida on March 13, 2024, and assigned Case No.
1:24-cv-20968-XXXX.
Count I of the Complaint seeks damages due to alleged overtime
violations of the Fair Labor Standards Act ("FLSA"), and Count II
of the Complaint seeks damages due to alleged unpaid wages under
Florida Statute.[BN]
The Defendants are represented by:
Arlene K. Kline, Esq.
Paige S. Newman, Esq.
AKERMAN LLP
777 South Flagler Drive, Suite 1100 West Tower
West Palm Beach, FL 33401
Phone: (561) 653-5000
Facsimile: (561) 659-6313
Email: arlene.kline@akerman.com
paige.newman@akerman.com
JLE INDUSTRIES: Martin Files Suit in W.D. Pennsylvania
------------------------------------------------------
A class action lawsuit has been filed against JLE Industries, LLC,
et al. The case is styled as Rick Martin, individually and on
behalf all others similarly situated v. JLE Industries, LLC, JLE
Equipment Leasing, LLC, Evan Pohaski, Case No. 2:24-cv-00326-MPK
(W.D. Pa., March 12, 2024).
The nature of suit is stated as Truth in Lending.
JLE Industries -- https://jleindustries.com/ -- is one of the
fastest-growing flatbed trucking companies & freight carriers in
America.[BN]
The Plaintiff is represented by:
Sarah R. Schalman-Bergen, Esq.
LICHTEN & LISS-RIORDAN, P.C.
729 Boylston St., Suite 2000
Boston, MA 02116
Phone: (617) 994-5800
Fax: (617) 994-5801
Email: ssb@llrlaw.com
JOHN MUIR: Faces Nado Suit Over Mismanagement of 403(b) Plan Funds
------------------------------------------------------------------
CONAN NADO, individually and as a representative of a Class of
Participants and Beneficiaries of the John Muir Health 403(b) Plan,
Plaintiff v. JOHN MUIR HEALTH and BOARD OF DIRECTORS OF JOHN MUIR
HEALTH, Defendants, Case No. 4:24-cv-01632 (N.D. Cal., March 15,
2024) is a class action against the Defendants for violations of
the Employee Retirement Income Security Act of 1974 including
breach of duty of prudence, breach of fiduciary duty of loyalty,
and failure to adequately monitor other fiduciaries.
According to the complaint, the Defendants breached their duty of
prudence they owed to the Plan by requiring the Plan to pay
excessive recordkeeping and administrative (RKA) fees and by
failing to remove their high-cost, multiple-vendor recordkeepers,
Fidelity Investments Institutional Operations and Lincoln National
Corporation, who provided too many Plan investment choices.
Moreover, the Defendants breached their duty of loyalty they owed
to the Plan by declining to use forfeited funds in the Plan to
eliminate the administrative expenses charged to participant
accounts, and instead using such Plan assets to reduce the
company's own contribution expenses. As a result, the Plaintiff and
Class members paid all of these excessive total RKA fees in the
form of direct and indirect compensation to the Plan and suffered
injuries to their Plan accounts, says the suit.
John Muir Health is a hospital network headquartered in Walnut
Creek, California. [BN]
The Plaintiff is represented by:
James A. Bloom, Esq.
Todd M. Schneider, Esq.
SCHNEIDER WALLCE COTTRELL KONECKY LLP
2000 Powell Street, Suite 1400
Emeryville, CA 94608
Telephone: (415) 421-7100
Facsimile: (415) 421-7105
E-mail: jbloom@schneiderwallace.com
tschneider@schneiderwallace.com
- and -
Paul M. Secunda, Esq.
WALCHESKE & LUZI, LLC
235 N. Executive Dr., Suite 240
Brookfield, WI 53005
Telephone: (262) 780-1953
Facsimile: (262) 565-6469
E-mail: psecunda@walcheskeluzi.com
KARENA FOODS: Fails to Pay Proper Wages, Castro Suit Alleges
------------------------------------------------------------
LUCIO CASTRO, on behalf of himself and others similarly situated,
Plaintiff v. KARENA FOODS INC. d/b/a MUGHLAI INDIAN CUISINE, KDEM
EATS INC. d/b/a MUGHLAI INDIAN CUISINE, GARY TULSIANI, and MAHENDER
TULSIANI, Defendants, Case No. 1:24-cv-01893 (S.D.N.Y., March 13,
2024) accuses the Defendants of violating the Fair Labor Standards
Act and the New York Labor Law.
In or about October 2021, Defendants hired Plaintiff Castro to work
as a non-exempt food preparer/kitchen worker, porter, and food
delivery worker. Throughout the entirety of his employment,
Plaintiff was not paid proper minimum wages and overtime
compensation. Among other things, Defendants failed to provide
Plaintiff with weekly wage statements/pay stubs setting forth
Plaintiffs gross wages, deductions, and net wages, says the suit.
Based in New York, KARENA FOODS INC., owns and operates Indian
restaurants doing business as "Mughlai Indian Cuisine."[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
KEN'S FOODS: Fails to Pay Proper Wages, Austin Alleges
------------------------------------------------------
DAVID AUSTIN, individually and on behalf of all others similarly
situated, Plaintiffs v. KEN'S FOODS, INC., Defendant, Case No.
4:24-cv-40040 (D. Mass., March 13, 2024) seeks to recover from the
Defendants unpaid wages and overtime compensation, interest,
liquidated damages, attorneys' fees, and costs under the Fair Labor
Standards Act.
The Plaintiff was employed by the Defendant as a staff.
KEN'S FOODS, INC., is a manufacturer of salad dressings and sauces,
as well as mayonnaise and barbeque sauces. [BN]
The Plaintiff is represented by:
Benjamin Knox Steffans, Esq.
STEFFANS LEGAL PLLC
10 Wendell Ave. Ext. Ste 208
Pittsfield, MA 01201
Telephone: (413) 418-4176
Email: bsteffans@steffanslegal.com
- and -
Kevin J. Stoops, Esq.
Jesse L. Young, Esq.
Albert J. Asciutto, Esq.
SOMMERS SCHWARTZ, P.C.
One Towne Square 17th Floor
Southfield, MI 48076
Telephone: (248) 355-0300
Email: kstoops@sommerspc.com
jyoung@sommerspc.com
aasciutto@sommerspc.com
KING'S COLLEGE: Delacruz Files ADA Suit in S.D. New York
--------------------------------------------------------
A class action lawsuit has been filed against King's College. The
case is styled as Emanuel Delacruz, on behalf of himself and all
other persons similarly situated v. King's College, Case No.
1:24-cv-01945-VSB (S.D.N.Y., March 15, 2024).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
The King's College -- https://www.tkc.edu/ -- is a Christian
liberal arts college in New York City with a core curriculum in
Politics, Philosophy, and Economics, founded in 1938.[BN]
The Plaintiff is represented by:
Jeffrey Michael Gottlieb, Esq.
Dana Lauren Gottlieb, Esq.
GOTTLIEB & ASSOCIATES
150 E. 18 St., Suite PHR
New York, NY 10003
Phone: (917) 796-7437
Fax: (212) 982-6284
Email: nyjg@aol.com
danalgottlieb@aol.com
KYLIE NOFS: Lures People to Fake Coinbit Platform, Shaya Alleges
----------------------------------------------------------------
STEPHEN B. SHAYA, on behalf of himself and all others similarly
situated, Plaintiff v. KYLIE NOFS, ZHU SHICAI, LUO YANBING, LIN
YIN, YANG ZHENLIN, and JOHN DOE NOS. 1-25, Defendants, Case No.
2:24-cv-10670-MAG-EAS (E.D. Mich., March 15, 2024) is a class
action against the Defendants for conversion, money had and
received, fraudulent misrepresentation, and aiding and
abetting/civil conspiracy.
According to the complaint, the Defendants used a fake
cryptocurrency trading platform composed of several websites that
use the phrase "Coinbit" to lure a common class of victims,
including the Plaintiff, to transfer funds to cryptocurrency
wallets that they controlled. The Defendants made false
representations with the intention that the Plaintiff and the Class
would rely upon them and act on them by transferring their funds
and assets. The Plaintiff and Class members brought this class
action to freeze wallets containing their funds that the Defendants
converted and return these funds to them.
Defendants Zhu Shicai, Luo Yanbing, Lin Yin, Yang Shelin, and John
Doe Nos 1-25 are persons of unknown citizenship who participated in
the perpetration of the wrongdoing alleged herein. One or more of
Defendants were affiliated with Coinbit and the Coinbit Platform,
which Class Members accessed through the "DeFi" application
available through Crypto.com, a cryptocurrency exchange based in
Singapore that, on information and belief, has customers,
employees, and a physical presence in the U.S.[BN]
The Plaintiff is represented by:
Kenneth F. Neuman, Esq.
Matthew D. Smith, Esq.
ALTIOR LAW, P.C.
401 S. Old Woodward, Suite 460
Birmingham, MI 48009
Telephone: (248) 594-5252
E-mail: kneuman@altiorlaw.com
msmith@altiorlaw.com
L'OREAL USA: Mraz Sues Over Benzene's Presence on BPO Products
--------------------------------------------------------------
KAYLA MRAZ, on behalf of herself and all others similarly situated,
Plaintiff v. L'OREAL USA, INC., Defendant, Case No. 1:24-cv-01974
(S.D.N.Y., March 15, 2024) is a class action against the Defendant
for violations of state consumer fraud acts, California's False
Advertising Law, California's Unfair Competition Law, and
California's Consumer Legal Remedies Act, negligent
misrepresentation/omission, and unjust enrichment.
The case arises from the Defendant's false, deceptive, and
misleading advertising, labeling, and marketing of the La
Roche-Posay branded benzoyl peroxide (BPO) acne treatment products,
Effaclar Duo Acne Spot Treatment. The Defendant misrepresented,
omitted, and concealed the presence of benzene, a known human
carcinogen, in the BPO products to consumers by not including
benzene on the labels or otherwise warning about its presence. The
Plaintiff and similarly situated consumers would not have purchased
the products had they known that they contain high levels of
benzene, says the suit.
L'Oreal USA, Inc. is a manufacturer of cosmetics products in New
York, New York. [BN]
The Plaintiff is represented by:
Steven Sukert, Esq.
Jeff Ostrow, Esq.
Kristen Lake Cardoso, Esq.
KOPELOWITZ OSTROW, P.A.
One West Las Olas Blvd., Suite 500
Fort Lauderdale, FL 33301
Telephone: (954) 525-4100
E-mail: sukert@kolawyers.com
cardoso@kolawyers.com
ostrow@kolawyers.com
- and -
James E. Cecchi, Esq.
Jason H. Alperstein, Esq.
Donald E. Ecklund, Esq.
Kevin Cooper, Esq.
CARELLA, BYRNE, CECCHI, OLSTEIN, BRODY & AGNELLO, P.C.
5 Becker Farm Road
Roseland, NJ 07068
Telephone: (973) 994-1700
Facsimile: (973) 994-1744
E-mail: jcecchi@carellabyrne.com
jalperstein@carelleabyrne.com
decklund@carellabyrne.com
kcooper@carellabyrne.com
LATAM AIRLINES: Settlement Reached in AGRECU Suit
-------------------------------------------------
LATAM Airlines Group S.A. disclosed in its Form 20-F report for the
fiscal year ended December 31, 2022, filed with the Securities and
Exchange Commission on March 10, 2023, that on July 7, 2020,
Chilean Association of Consumers and Users (AGRECU) filed a class
action against LATAM Airlines Group S.A. in a Chilean court, for
alleged breaches of the Law on Protection of Consumer Rights due to
flight cancellations caused by the COVID-19 Pandemic, requesting
the nullity of possible abusive clauses, the imposition of fines
and compensation for damages in defense of the collective interest
of consumers. The case has been settled.
The company filed its statement of defense on August 21, 2020. The
25th Juzgado Civil de Santiago admitted the statement of defense
and convened the parties to a settlement hearing on October 1,
2020. A settlement was reached with AGRECU at that hearing that was
approved by the Court on October 5, 2020. On October 7, 2020, the
25th Civil Court confirmed that the decision approving the
settlement was final and binding. The amount at the moment is
undetermined.
LATAM Airlines Group S.A. is an airline holding company based in
Chile.
LINE FINANCIAL: Baker Files TCPA Suit in S.D. Ohio
--------------------------------------------------
A class action lawsuit has been filed against Line Financial, PBC.
The case is styled as Paula Baker, individually and on behalf of
all others similarly situated v. Line Financial, PBC doing business
as: Beem, Case No. 1:24-cv-00116-JPH (S.D. Ohio, March 8, 2024).
The lawsuit is brought over alleged violation of the Telephone
Consumer Protection Act for Restrictions of Use of Telephone
Equipment.
Line Financial, PBC doing business as Beem -- https://trybeem.com/
-- is the #1 Smart Wallet App that helps you stay on top of your
finances.[BN]
The Plaintiff is represented by:
Andrew John Shamis, Esq.
SHAMIS & GENTILE, PA
14 NE 1st Ave., Ste. 1205
Miami, FL 33132
Phone: (305) 479-2299
Fax: (786) 623-0915
Email: ashamis@shamisgentile.com
LION BRAND YARN: Frost Files ADA Suit in D. Minnesota
-----------------------------------------------------
A class action lawsuit has been filed against Lion Brand Yarn
Company. The case is styled as Clarence Frost, Tammy Frost,
individually and on behalf of all others similarly situated v. Lion
Brand Yarn Company, Case No. 0:24-cv-00950-KMM-LIB (D. Minn., March
15, 2024).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Lion Brand Yarn -- https://www.lionbrand.com/ -- is America's
oldest craft yarn company with 80+ active yarn families.[BN]
The Plaintiffs are represented by:
Jason D. Gustafson, Esq.
Patrick W. Michenfelder, Esq.
THRONDSET MICHENFELDER, LLC
One Central Avenue West, Suite 203
St. Michael, MN 55376
Phone: (763) 515-6110
Email: jason@throndsetlaw.com
pat@throndsetlaw.com
LOS ANGELES, CA: Golfers Filed Suit on Black Market in Tee Times
----------------------------------------------------------------
Matt Hamilton, writing for 2urbangirls.com, reports that five
golfers filed a class-action lawsuit this week against the city of
Los Angeles, alleging that officials failed to rein in a bustling
black market in tee times at municipal golf courses.
In October, some of the golfers, who are members of an Asian
American golfing group, shared evidence with L.A. Department of
Recreation and Parks officials of brokers selling tee times on
public courses, according to the lawsuit.
"To date, however, nothing has been done to prevent the illegal tee
time bookings at LA City Golf Courses," said the lawsuit, filed
Thursday in L.A. Superior Court. "Nothing has been done to ensure
the booking process is fair to all golfers who wish to play."
The city Department of Recreation and Parks operates 12 golf
courses of varying sizes, including seven 18-hole golf courses.
Golf has surged in popularity in recent years, and L.A.'s courses
-- convenient and affordable -- draw players who can't (or won't)
pay the five- and six-figure initiation fees to gain entry to tony
private country clubs.
But in recent years, a network of brokers, primarily in the Korean
community, has managed to consistently grab desirable morning and
afternoon tee times at the most sought-after municipal courses,
like Rancho Park and Griffith Park.
The lawsuit accuses the city of L.A., which is the sole defendant,
of a breach of implied contract and breach of public trust. It
points to a membership program offered by the city known as the
Player Card, which generates more than $600,000 in annual revenue
for the golf program. [GN]
MDL 2724: 3 Generic Meds Price-rigging Suits Remanded to D. Conn.
-----------------------------------------------------------------
In the multi-district case captioned "In re: Generic
Pharmaceuticals Pricing Antitrust Litigation," MDL No. 2724, Judge
Karen K. Caldwell, Chairperson of the U.S. Judicial Panel on
Multidistrict Litigation, has entered an order remanding three
actions from the U.S. District Court for the Eastern District of
Pennsylvania to the District of Connecticut.
Said state antitrust enforcement actions were transferred from the
District of Connecticut to the Eastern District of Pennsylvania for
centralized proceedings in MDL No. 2724 between 2017 and 2020. This
highly complex antitrust proceeding involves claims for price
fixing of numerous generic drugs in violation of the Sherman Act
and state antitrust laws. Plaintiffs in this MDL allege that the
average market price of these pharmaceutical products increased
between 2012 and the present because of overlapping conspiracies
effectuated by defendants through direct company-to-company
contacts and joint activities undertaken through trade
associations.
In December 2022, legislation was enacted to exempt state antitrust
enforcement actions arising under federal antitrust law from MDLs.
Plaintiffs in the state actions move for an order remanding these
actions to the District of Connecticut. Approximately forty
defendants oppose the motion for remand. Prior to its amendment in
December 2022, federal antitrust enforcement actions were exempt
from centralization.
Defendants argue that the transferee court and the parties have
expended significant resources on said actions, which will be
wasted if the actions are remanded to the District of Connecticut.
Even so, the impact of remand on the MDL is largely irrelevant
where the mandate of the statute is clear. Further, while remand
may temporarily disrupt proceedings in the MDL, it is unlikely that
the work by the parties and the court in the MDL will be for
nought. As mentioned, the rulings of the transferee court will
apply to the State Actions absent a ruling to the contrary by the
transferor court, and the extensive discovery conducted to date
undoubtedly will be used in both the state actions and the MDL.
Additionally, informal cooperation among the parties and
coordination among the involved courts remains possible, rules the
panel.
A full-text copy of the court's January 31, 2024 remand order is
available at
https://www.jpml.uscourts.gov/sites/jpml/files/MDL-2724-Remand_Order-1-24.pdf
MDL 2873: Panel Denies Transfer of Hoffnagle v. CWC to D.S.C.
-------------------------------------------------------------
Judge Karen K. Caldwell, Chairperson of the U.S. Judicial Panel on
Multidistrict Litigation, has denied the transfer of the case
captioned "Hoffnagle, et al. v. Connecticut Water Company," C.A.
No. 3:23−01489 (D. Conn.) to the District of South Carolina for
inclusion in "In Re: Aqueous Film-Forming Foams Products Liability
Litigation," MDL No. 2873.
MDL No. 2873 involves allegations that aqueous film-forming foams
(AFFFs) used at airports, military bases, or other locations to
extinguish liquid fuel fires caused the release of perfluorooctane
sulfonate (PFOS) and/or perfluorooctanoic acid (PFOA; collectively,
these and other per- or polyfluoroalkyl substances are referred to
as PFAS) into local groundwater and contaminated drinking water
supplies.
Plaintiffs in Hoffnagle seek to represent a class of all customers
of the Connecticut Water Company (CWC, the sole named defendant)
who allegedly received water contaminated with PFAS. Plaintiffs
seek damages and injunctive relief, including an order that CWC
adequately filter and treat its water to remove PFAS contamination
and to provide for a medical monitoring program. On its face,
plaintiffs' complaint does not involve allegations pertaining to
the manufacture, use, or disposal of AFFFs.
Defendant CWC argues that the Hoffnagle suit overlaps with an
action brought by CWC against PFAS and AFFF manufacturers, which is
pending in MDL No. 2873 and in which CWC alleges that the PFAS
contamination of its water supplies stems, at least in part, from
use or disposal of AFFF. Accordingly, CWC argues that there
necessarily will be overlapping discovery as between Hoffnagle and
CWC's AFFF action.
The panel ruled that neither CWC nor 3M have met their "significant
burden" of showing that transfer of Hoffnagle is appropriate.
Plaintiffs' complaint is focused on CWC's alleged obligations to
its customers to provide water free from PFAS contamination. CWC,
the sole named defendant, is not alleged to have manufactured,
used, or disposed of AFFFs. Transferring this action to MDL No.
2873 would significantly and unnecessarily broaden the scope of the
MDL. The source of the alleged PFAS-contamination at issue in
Hoffnagle is, to a large extent, irrelevant to plaintiffs' claims
against CWC. Any overlap in discovery with CWC's claims against
PFAS and AFFF manufacturers in the MDL should be minimal and can be
addressed through informal cooperation and coordination among the
involved parties and courts. Accordingly, after considering the
parties’ arguments, the panel determined that transfer of
Hoffnagle will not serve the convenience of the parties and
witnesses or promote the just and efficient conduct of the
litigation.
A full-text copy of the court's January 31, 2024 order is available
at
https://www.jpml.uscourts.gov/sites/jpml/files/MDL-2873-Order_Denying_Transfer-1-24.pdf
MDL 2873: Suessmann Consolidated in AFFFs Products Liability Row
-----------------------------------------------------------------
In the multi-district action captioned "In Re: Aqueous Film-Forming
Foams Products Liability Litigation," MDL No. 2873, Judge Karen K.
Caldwell, Chairperson of the U.S. Judicial Panel on Multidistrict
Litigation, has entered an order transferring "Suessmann, et al. v.
E.I. Du Pont De Nemours and Company, et al.," C.A. No. 1:23−20415
(D. N.J.) to the District of South Carolina and assigning it to the
Honorable Richard M. Gergel for inclusion in the coordinated or
consolidated pretrial proceedings.
3M Company moved to transfer this action to the District of South
Carolina for inclusion in MDL No. 2873. Neither plaintiffs nor the
other defendants responded to the motion.
In the panel's order centralizing this litigation, it was
determined that the District of South Carolina was an appropriate
forum for actions in which plaintiffs allege that aqueous
film-forming foam (AFFF) products used at airports, military bases,
or certain industrial locations caused the release of
perfluorooctanesulfonic acid and/or perfluorooctanoic acid into
local groundwater and contaminated drinking water supplies. The
panel finds that Suessmann share factual questions concerning the
use and storage of AFFFs, the toxicity of per- and polyfluoroalkyl
substances and the effects of these substances on human health and
these substances' chemical properties and propensity to migrate in
groundwater supplies.
A full-text copy of the court's January 31, 2024 transfer order is
available at
https://www.jpml.uscourts.gov/sites/jpml/files/MDL-2873-Transfer_Order-1-24.pdf
MDL 2904: Batten Case Consolidated in AMCA Data Security Breach Row
-------------------------------------------------------------------
In the multi-district action captioned, "In re: American Medical
Collection Agency, Inc., Customer Data Security Breach Litigation,"
MDL No. 2904, Judge Karen K. Caldwell, Chairperson of the U.S.
Judicial Panel on Multidistrict Litigation, transfers the case
styled as Bratten v. Quest Diagnostics Incorporated, et al.," (C.A.
No. 2:23−02546) from the U.S. District Court for the Eastern
District of California to the District of New Jersey and, with the
consent of that court, assigned to the Judge Madeline Cox Arleo for
coordinated or consolidated pretrial proceedings.
The panel held that centralization was warranted for actions
concerning a data security breach on the systems of American
Medical Collection Agency (AMCA) involving patient data that
various medical diagnostic testing companies and their agents, such
as Quest and Optum360, had provided to AMCA for billing and
collection purposes. Bratten alleges that Quest and Optum360
transmitted the medical information of Quest patients to
third-party debt collection agencies, including AMCA, without
patient authorization in violation of state law and, as a result,
plaintiff suffered damages from the unauthorized release of his
medical information.
According to the panel, there is a significant overlap with the MDL
proceedings and indicates that pretrial proceedings in Bratten will
be conducted more efficiently in the transferee court. The presence
of case-specific issues in Bratten concerning other debt collection
agencies is not an impediment to transfer in these circumstances.
Transfer does not require a complete identity of factual issues,
and the presence of additional facts or differing legal theories is
not significant when, as here, the actions arise from a common
factual core.
A full-text copy of the court's January 29, 2024 transfer order is
available at
https://www.jpml.uscourts.gov/sites/jpml/files/MDL-2904-Transfer_Order-1-24.pdf
MEDSTREAM ANESTHESIA: Blondeau's Conditional Cert Bid Partly OK'd
-----------------------------------------------------------------
In the class action lawsuit captioned as JOANNA BLONDEAU,
individually and on behalf of all others similarly situated, v.
MEDSTREAM ANESTHESIA, PLLC, Case No. (W.D.N.C.), the Hon. Judge
Martin Reidinger entered an order granting in part and denying in
part Blondeau's motion for conditional certification as follows:
(1) The Court conditionally certifies the following collective:
All Certified Registered Nurse Anesthetists (CRNAs) who
worked for either MedStream Anesthesia, PLLC, as an
independent contractor, or for Pivot Healthcare, as an
employee, and who worked over 40 hours in a workweek for
at
least one week in a hospital that contracted with
MedStream
between April 25, 2020, and the opt-in deadline.
(2) The parties are ordered to meet and confer within 14 days of
the entry of this Order regarding the contents of the
proposed notices. The parties are further ordered to submit
either a mutually agreeable notice, or separate notices
specifically addressing the issues that the parties were
unable
to resolve, within 14 days of the entry of this Order.
(3) The notice period in this matter shall be 60 days and shall
run beginning on the date that the notice is approved.
(4) Once the notice is approved, it shall be sent via U.S. mail
and
email.
(5) No reminder notice shall be sent.
(6) MedStream is ordered to provide Blondeau, to the extent
available, with the full names, last-known addresses, last-
known email addresses, date ranges worked, and work
locations
of the potential opt-in plaintiffs within 14 days of the
entry
of this Order.
(7) MedStream is further ordered to provide this information
in a computer-readable data file.
Ms. Blondeau commenced this action by filing her Complaint on April
25, 2023. She alleges that MedStream misclassified her and its
other CRNAs as independent contractors to avoid paying overtime
wages required by the Fair Labor Standards Act ("FLSA").
MedStream is a healthcare solutions company with over 50 anesthesia
practice sites across the Southeast and beyond.
A copy of the Court's order dated March 18, 2024 is available from
PacerMonitor.com at https://urlcurt.com/u?l=Kt1f3x at no extra
charge.[CC]
MICHIGAN: Court Denies AG's Bid to Intervene in Bowles v. Sabree
----------------------------------------------------------------
Judge Linda V. Parker of the U.S. District Court for the Eastern
District of Michigan, Southern Division, denies without prejudice
the Michigan Attorney General's motion to intervene in the lawsuit
entitled TONYA BOWLES, for herself and all those similarly
situated, Plaintiffs v. ERIC SABREE, et al., Defendants, Case No.
2:23-cv-10973-LVP-KGA (E.D. Mich.).
Presently before the Court is the Michigan Attorney General's
Motion to Intervene under Federal Rule of Civil Procedure 24(a).
Rule 24(a) provides that a court must permit intervention by
anyone, who has been given an unconditional right to intervene by a
federal statute. Congress provides an unconditional right to
intervene in 28 U.S.C. Section 2403, which states that federal
courts "shall permit" a state to intervene in any suit wherein the
constitutionality of any statute of that State affecting the public
interest is drawn in question.
The Michigan Department of Attorney General's motion to intervene
is premised on statements in a Complaint filed by Melvin Chuney,
Jr., Kennan Jackson, and Darlene Henderson (Chuney, et al. v.
County of Wayne, et al., No. 23-cv-10524 (E.D. Mich. filed Mar. 3,
2023)). That litigation, however, was consolidated with this
already pending matter. A class action complaint now governs the
litigation.
While the controlling pleading does reference the constitutionality
of a Michigan statute, specifically Michigan Compiled Laws Section
211.78m, it is not apparent to the Court that the Plaintiffs have
raised a constitutional question that has not already been decided
by the Michigan Supreme Court and Sixth Circuit.
At this time, therefore, the Court finds the Michigan Attorney
General's intervention unnecessary. Moreover, there are appeals
pending in the Sixth Circuit, the resolution of which may
significantly alter this litigation moving forward.
Therefore, the Court is denying without prejudice the Michigan
Attorney General's request to intervene. However, the Court will
reconsider the request without the need for a renewed motion, if it
appears that the constitutionality of Section 211.78m is, in fact,
at issue with respect to a question not already resolved
elsewhere.
A full-text copy of the Court's Order dated March 11, 2024, is
available at https://tinyurl.com/ycye3drn from PacerMonitor.com.
MPOWER ENERGY: Rhymes Suit Transferred to S.D. New York
-------------------------------------------------------
The case styled as Ayan Rhymes, Loveleen Kaur, on behalf of
themselves and all others similarly situated v. Mpower Energy NJ,
LLC, Case No. 2:23-cv-02556 was transferred from the U.S. District
Court for the District of New Jersey, to the U.S. District Court
for the Southern District of New York on March 18, 2024.
The District Court Clerk assigned Case No. 1:24-cv-02015-ER to the
proceeding.
The nature of suit is stated as Other Contract for Breach of
Contract.
Mpower Energy -- https://mpowerenergy.com/ -- offers clean, Clean
energy services for residential homeowners in the community at a
consistent, price-protected rate.[BN]
The Plaintiffs are represented by:
David Buckner, Esq.
BUCKNER AND MILES, P.A.
2020 Salzedo Street, Suite 302
Coral Gables, FL 33134
Phone: (305) 964-8003
Fax: (786) 523-0485
- and -
James A. Barry, Esq.
POGUST GOODHEAD LLC
505 S. Lenola Rd., Suite 126
Moorestown, NJ 08057
Phone: (610) 941-4204
- and -
Michael A Galpern, Esq.
JAVERGAUM WURGAFT HICKS KAHN WIKSTROM SININS PC
1000 Haddonfield Berlin Rd., Suite 203
Voorhees, NJ 08043
Phone: (856) 596-4100
Email: mgalpern@lawjw.com
- and -
Meghan J. Talbot, Esq.
POGUST GOODHEAD LLC
161 Washington St., Ste. 250
Conshohocken, PA 19428
Phone: (610) 941-4204
The Defendants are represented by:
Cara Debra Kaplan, Esq.
COZEN O'CONNOR
One Liberty Place
1650 Market Street, Ste. 2800
Philadelphia, PA 19103
Phone: (215) 864-8025
Email: ckaplan@cozen.com
- and -
Emma M. Lombard, Esq.
COZEN O'CONNOR
1010 Kings Highway South
Cherry Hill, NJ 08034
Phone: (212) 908-1329
Email: elombard@cozen.com
MUFG UNION: Settles Overdraft Class Action Lawsuit for $5-Mil.
--------------------------------------------------------------
Top Class Actions reports that MUFG Union Bank agreed to pay $5
million to resolve claims it charged unfair overdraft fees on debit
transactions despite authorizing them with a positive balance.
The settlement benefits MUFG Union Bank account holders who were
charged deceptive overdraft fees between Oct. 19, 2013, and Feb.
28, 2019.
A bank fee class action lawsuit alleged the bank charged consumers
overdraft fees on transactions that it had previously authorized
with a positive balance. Plaintiffs in the case claimed these fees
violated MUFG's account agreements.
MUFG Union Bank was a West Coast franchise that was purchased by US
Bank in 2021.
MUFG Union Bank hasn't admitted any wrongdoing but agreed to a $5
million settlement to resolve the overdraft class action lawsuit.
Under the terms of the settlement, class members can receive a
payment based on the amount they paid in overdraft fees during the
class period. Settlement payments will vary between class members
but are expected to average out to $40.16 per class member.
The deadline for exclusion and objection is June 25, 2024.
The final approval hearing for the settlement is scheduled for July
25, 2024.
No claim form is required to benefit from the settlement.
Who's Eligible
MUFG Union Bank account holders who were charged deceptive
overdraft fees between Oct. 19, 2013, and Feb. 28, 2019
Potential Award
Varies
Proof of Purchase
N/A
Exclusion Deadline
06/25/2024
Case Name
Harrold v. MUFG Union Bank NA, Case No. BC680214, in the California
Superior Court for Los Angeles County
Final Hearing
07/25/2024
Settlement Website
HarroldUnionBankOverdraftLitigation.com
Claims Administrator
Harrold v. MUFG Union Bank
c/o Kroll Settlement Administration LLC
PO Box 225391
New York, NY 10150-5391
Tel: 833-933-7977
Class Counsel
Jonathan M Streisfeld
KOPELOWITZ OSTROW PA
1 West Las Olas Blvd, 5th Floor
Ft. Lauderdale, FL 33301
Main 954-525-4100
Fax 954-525-4300
Andrea R Gold
TYCKO & ZAVAREEI LLP
2000 Pennsylvania Avenue NW, Suite 1010
Washington, DC 20006
Tel.: (510) 617-0985
Fax: (202) 973-0950
Defense Counsel
Nancy R Thomas
DAVIS WRIGHT TREMAINE LLP
865 South Figueroa Street, Suite 2400
Los Angeles, CA 90017-2566
Tel: (213) 655-9689
nancythomas@dwt.com [GN]
NBT BANCORP: Richey Suit Seeks Unpaid Overtime for Bank Tellers
---------------------------------------------------------------
HEATHER RICHEY and GLORIA FERDINAND, individually and on behalf of
all others similarly situated, Plaintiffs v. NBT BANCORP INC.,
Defendant, Case No. 6:24-cv-00362-GTS-MJK (N.D.N.Y., March 15,
2024) is a class action against the Defendant for failure to pay
overtime wages in violation of the Fair Labor Standards Act of
1938, the New York Labor Law, and the New York common law.
Plaintiffs Richey and Ferdinand worked for the Defendant as tellers
until 2021 and March 2018, respectively.
NBT Bancorp Inc. is a commercial banking company headquartered in
New York. [BN]
The Plaintiffs are represented by:
Matthew D. Miller, Esq.
Justin L. Swidler, Esq.
Richard S. Swartz, Esq.
SWARTZ SWIDLER, LLC
9 Tanner Street, Suite 101
Haddonfield, NJ 08033
Telephone: (856) 685-7420
Facsimile: (856) 685-7417
NEXT BRIDGE: Faces Class Action Suit Over Securities Claims
-----------------------------------------------------------
If you suffered a loss on your Next Bridge Hydrocarbons, Inc.
investment and want to learn about a potential recovery under the
federal securities laws, follow the link below for more
information:
https://zlk.com/pslra-1/next-bridge-hydrocarbons-inc-lawsuit-submission-form?prid=72367&wire=1
or contact Joseph E. Levi, Esq. via email at
jlevi@levikorsinsky.com or call (212) 363-7500 to speak to our team
of experienced shareholder advocates.
THE LAWSUIT: This lawsuit is on behalf of all persons or entities
that acquired shares of Next Bridge Hydrocarbons, Inc. in
connection with the Company's spin-off from Meta Materials, Inc. on
or around December 14, 2022.
CASE DETAILS: The complaint alleges that NBH filed a registration
statement in connection with its spin-off from Meta Materials that
contained false and/or materially misleading statements. The
statements at issue concern the value of the Company's oil and gas
assets and NBH's transactions with related parties. The complaint
alleges that these false and/or materially misleading statements
violated the Securities Act of 1933 and, consequently, damaged
shareholders who received NBH shares in conjunction with the
spin-off.
WHAT'S NEXT? If you suffered a loss in Next Bridge stock during the
relevant time frame - even if you still hold your shares - go to
https://zlk.com/pslra-1/next-bridge-hydrocarbons-inc-lawsuit-submission-form?prid=72367&wire=1
to learn about your rights to seek a recovery. There is no cost or
obligation to participate.
WHY LEVI & KORSINSKY: Over the past 20 years, Levi & Korsinsky LLP
has established itself as a nationally-recognized securities
litigation firm that has secured hundreds of millions of dollars
for aggrieved shareholders and built a track record of winning
high-stakes cases. The firm has extensive expertise representing
investors in complex securities litigation and a team of over 70
employees to serve our clients. For seven years in a row, Levi &
Korsinsky has ranked in ISS Securities Class Action Services' Top
50 Report as one of the top securities litigation firms in the
United States. Attorney Advertising. Prior results do not guarantee
similar outcomes.
CONTACT:
Levi & Korsinsky, LLP
Joseph E. Levi, Esq.
Ed Korsinsky, Esq.
33 Whitehall Street, 17th Floor
New York, NY 10004
jlevi@levikorsinsky.com
Tel: (212) 363-7500
Fax: (212) 363-7171
https://zlk.com/ [GN]
NEXT BRIDGE: Misleads Buyers to Acquire Shares, Targgart Claims
---------------------------------------------------------------
TODD TARGGART, on behalf of himself and all others similarly
situated, Plaintiff v. NEXT BRIDGE HYDROCARBONS, INC., KEN RICE,
GEORGE PALIKARAS, ROBERT L. COOK, CLIFTON DUBOSE, JR., JOSEPH
DEWOODY, LUCAS T. HAWKINS, DELVINA OELKERS, MIA PITTS, KRISTIN
WHITLEY, and GREGORY MCCABE, Defendants, Case No. 1:24-cv-01927
(E.D.N.Y., March 15, 2024) is a class action against the Defendants
for violations of Sections 11 and 15 of the Securities Act of
1933.
According to the complaint, the Defendants filed an inaccurate and
misleading Registration Statement with the U.S. Securities and
Exchange Commission in order to complete Next Bridge Hydrocarbons,
Inc.'s (NBH) spin-off from Meta Materials, Inc. on or around
December 14, 2022. The Plaintiff and similarly situated individuals
acquired NBH shares pursuant and/or traceable to the Registration
Statement and sustained damages as a result, says the suit.
Next Bridge Hydrocarbons, Inc. is an energy company based in Fort
Worth, Texas. [BN]
The Plaintiff is represented by:
Adam M. Apton, Esq.
LEVI & KORSINSKY, LLP
33 Whitehall Street, 17th Floor
New York, NY 10004
Telephone: (212) 363-7500
Facsimile: (212) 363-7171
NORTHEAST ORTHOPEDICS: Smith Sues Over Compromised Personal Info
----------------------------------------------------------------
JULIA SMITH, individually and on behalf of all others similarly
situated, Plaintiff v. NORTHEAST ORTHOPEDICS AND SPORTS MEDICINE,
PLLC, Defendant, Case No. 7:24-cv-01961-KMK (S.D.N.Y., March 15,
2024) is a class action against the Defendant for negligence,
breach of implied contract, unjust enrichment, and violation of the
New York Deceptive Trade Practices Act.
The case arises from the Defendant's failure to properly secure and
safeguard personally identifiable information (PII) and protected
health information (PHI) of the Plaintiff and similarly situated
patients stored within the Defendant's network system following a
data breach. The Defendant also failed to timely notify the
Plaintiff and similarly situated patients about the data breach. As
a result, the private information of the Plaintiff and Class
members was compromised and damaged through access by and
disclosure to unknown and unauthorized third parties, says the
suit.
Northeast Orthopedics and Sports Medicine, PLLC is a healthcare
services provider, with its principal place of business located in
Nanuet, New York. [BN]
The Plaintiff is represented by:
Vicki J. Maniatis, Esq.
MILBERG COLEMAN BRYSON PHILLIPS GROSSMAN PLLC
100 Garden City Plaza, Suite 500
Garden City, NY 11530
Telephone: (865) 412-2700
E-mail: vmaniatis@milberg.com
- and -
David K. Lietz, Esq.
MILBERG COLEMAN BRYSON PHILLIPS GROSSMAN, PLLC
5335 Wisconsin Avenue NW, Suite 440
Washington, DC 20015
Telephone: (866) 252-0878
Facsimile: (202) 686-2877
E-mail: dlietz@milberg.com
PLUNGE RESTAURANT: Calderon Sues Over Breaches of Labor Code
------------------------------------------------------------
BENJAMIN DIEGO CALDERON, an individual; Plaintiff v. PLUNGE
RESTAURANT, LLC, a California Limited Liability Company; STEPHANIE
LYN CARLOUGH, an individual; and DOES 1 through 20, inclusive;
Defendants, Case No. 24STCV06216 (Cal. Super., Los Angeles Cty.,
March 13, 2024) alleges violations of numerous provisions of the
California Labor Code, including the Defendants' failure to pay
Plaintiff and similarly situated individuals the proper minimum
wage and overtime compensation.
The Defendants employed Plaintiff as a restaurant worker between
approximately May 10, 2022 and approximately November 12, 2023.
However, Defendants misclassified Plaintiff and others as
independent contractors, paying them outside of payroll, and
depriving them of various labor law protection s afforded to
employees, in violation of the California Labor Code, says the
suit.
Plunge Restaurant LLC is a restaurant business operating out of Los
Angeles County, California. [BN]
The Plaintiff is represented by:
Sarkis Sirmabekian, Esq.
SIRMABEKIAN LAW FIRM, PC
3435 Wilshire Blvd., Suite 1710
Los Angeles, CA 90010
Telephone: (818) 473-5003
Facsimile: (818) 476-5619
E-mail: contact@slawla.com
PPG INDUSTRIES: All Fact Discovery Extended to June 24
------------------------------------------------------
In the class action lawsuit captioned as CHRISTIAN RODRIGUEZ, et
al., on behalf of themselves and all others similarly situated, v.
PPG INDUSTRIES, INC., Case No. 2:22-cv-00838-WSH-MPK (W.D. Pa.),
the Hon. Judge Maureen Kelly entered an order granting the Parties'
joint motion to extend class certification fact discovery.
The deadlines set forth in the case management order dated July 19,
2023 are amended as follows:
-- All fact discovery shall be completed by June 24, 2024.
-- A post-discovery status conference is scheduled for June 26,
2024
at 10:00 a.m. by video conference.
-- Conference previously scheduled for March 21, 2024 is
cancelled.
PPG is an American Fortune 500 company and global supplier of
paints, coatings, and specialty materials.
A copy of the Court's order dated March 18, 2024 is available from
PacerMonitor.com at https://urlcurt.com/u?l=7iCC0H at no extra
charge.[CC]
R.O.A.D.S. FOUNDATION: Thomas Sues Over Unpaid Wages in California
------------------------------------------------------------------
ERMALINDA THOMAS, individually and on behalf of all others
similarly situated, Plaintiff v. THE R.O.A.D.S. FOUNDATION, INC.
and DOES 1 to 100, inclusive, Defendants, Case No. 24STCV06490
(Cal. Super., Los Angeles Cty., March 15, 2024) is a class action
against the Defendants for violations of California Labor Code
including failure to pay overtime wages, failure to provide meal
periods, failure to provide rest periods, failure to timely pay
earned wages during employment, secret payment of lower wages than
designated by statute or contract, failure to provide complete and
accurate wage statements, and failure to pay employees all wages
due at time of termination/resignation.
The Plaintiff worked for the Defendants as a non-exempt employee
from approximately July 6, 2020, until in or about November 2023.
The R.O.A.D.S. Foundation, Inc. is a provider of health services in
California. [BN]
The Plaintiff is represented by:
Joseph Lavi, Esq.
Vincent C. Granberry, Esq.
Jordan Bello, Esq.
Brett Szmanda, Esq.
LAVI & EBRAHIMIAN, LLP
8889 W. Olympic Boulevard, Suite 200
Beverly Hills, CA 90211
Telephone: (310) 432-0000
Facsimile: (310) 432-0001
Email: jlavi@lelawfirm.com
vgranberry@lelawfirm.com
jbello@lelawfirm.com
bszmanda@lelawfirm.com
RHOMBUS SERVICES: Fails to Pay Proper Wages, Adams Alleges
----------------------------------------------------------
MARCUS ADAMS; and CONRAD EVERETT, individually and on behalf of all
others similarly situated, Plaintiffs v. RHOMBUS SERVICES, LLC
d/b/a Brandpoint Services, Defendant, Case No. 2:24-cv-01124 (E.D.
Pa., March 14, 2024) seeks to recover from the Defendants unpaid
wages and overtime compensation, interest, liquidated damages,
attorneys' fees, and costs under the Fair Labor Standards Act.
The Plaintiffs were employed by the Defendant as a merchandisers.
RHOMBUS SERVICES, LLC d/b/a Brandpoint Services provides facility
maintenance services, construction needs and special projects such
as remodeling, rollouts, implementing Covid-19 safety protocols and
digital signage. [BN]
The Plaintiff is represented by:
Josef F. Buenker, Esq.
THE BUENKER LAW FIRM
P.O. Box 10099
Houston, TX 77206
Telephone: (713) 868-3388
Email: jbuenker@buenkerlaw.com
- and -
Peter Winebrake, Esq.
Michelle Tolodziecki, Esq.
WINEBRAKE & SANTILLO, LLC
715 Twining Road, Suite 211
Dresher, PA 19025
Telephone: (215) 884-2491
Email: pwinebrake@winebrakelaw.com
mtolodziecki@winebrakelaw.com
ROCKET COMPANIES: Seeks to File Surreply Portions Under Seal
------------------------------------------------------------
In the class action lawsuit captioned as CARL SHUPE and
CONSTRUCTION LABORERS PENSION TRUST FOR SOUTHERN CALIFORNIA,
Individually and on Behalf of All Others Similarly Situated, v.
ROCKET COMPANIES, INC., JAY D. FARNER, DANIEL GILBERT and ROCK
HOLDINGS INC., Case No. 1:21-cv-11528-TLL-APP (E.D. Mich.),
Defendants request that the Court allow them to file under seal
portions of their Sur-Reply Memorandum of Law in Opposition to
Plaintiffs' Motion for Class Certification.
The Defendants move for an order allowing them to file under seal
portions of their Sur-Reply Memorandum of Law in Opposition to
Plaintiffs' Motion for Class Certification.
On May 16, 2023, the Court entered a stipulated protective order
describing how the parties must handle discovery materials
designated "Confidential" or "Highly Confidential."
Rocket is a Detroit-based fintech company consisting of mortgage,
real estate and financial service businesses.
A copy of the Defendants' motion dated March 15, 2024 is available
from PacerMonitor.com at https://urlcurt.com/u?l=4UlBBj at no extra
charge.[CC]
The Defendants are represented by:
Nick Gorga, Esq.
Jeremy D. Lockhart, Esq.
Carsten A. Parmenter, Esq.
HONIGMAN LLP
660 Woodward Avenue
2290 First National Building
Detroit, MI 48226
Telephone: (313) 465-7000
E-mail: ngorga@honigman.com
jlockhart@honigman.com
cparmenter@honigman.com
- and -
Deborah S. Birnbach, Esq.
Adam Slutsky, Esq.
Kate MacLeman, Esq.
GOODWIN PROCTER LLP
100 Northern Avenue
Boston, MA 02210
Telephone: (617) 570-1000
E-mail: dbirnbach@goodwinlaw.com
aslutsky@goodwinlaw.com
kmacleman@goodwinlaw.com
- and -
Jeffrey B. Morganroth, Esq.
MORGANROTH & MORGANROTH, PLLC
344 North Old Woodward Avenue, Suite 200
Birmingham, MI 48009
Telephone: (248) 864-4000
E-mail: jmorganroth@morganrothlaw.com
- and -
Sharon L. Nelles, Esq.
Jeffrey T. Scott, Esq.
Julia A. Malkina, Esq.
Jacob E. Cohen, Esq.
SULLIVAN & CROMWELL LLP
125 Broad Street
New York, NY 10004
Telephone: (212) 558-4000
E-mail: nelless@sullcrom.com
scottj@sullcrom.com
malkinaj@sullcrom.com
cohenja@sullcrom.com
SAN FRANCISCO FIRE CREDIT: Garves Files Suit in Cal. Super. Ct.
---------------------------------------------------------------
A class action lawsuit has been filed against San Francisco Fire
Credit Union, et al. The case is styled as Paul Garves, on behalf
of himself and all others similarly situated, and the general
public v. San Francisco Fire Credit Union, Does 1 through 50,
inclusive, Case No. CGC24613197 (Cal. Super. Ct., San Francisco
Cty., March 18, 2024).
The case type is stated as "Personal Injury/Property Damage -
Vehicle Related."
San Francisco Fire Credit Union -- https://sffirecu.org/ --
operates as a non-profit organization.[BN]
The Plaintiff is represented by:
David Keledjian, Esq.
D.LAW, INC.
880 E Broadway
Glendale, CA 91205-1218
Phone: 818-962-6465
Fax: 818-962-6469
Email: d.keledjian@d.law
SCHMIDT BAKING: Fails to Pay Proper Wages, Adragna Alleges
----------------------------------------------------------
SALVATORE ADRAGNA; DANIEL AUSTIN; BRADLEY JOHNSON; and MICHAEL
WILLIAMS, individually and on behalf of all others similarly
situated, Plaintiff v. SCHMIDT BAKING COMPANY, INC.; and SCHMIDT
BAKING DISTRIBUTION, LLC, Defendants, Case No. 3:24-cv-00431-KM
(M.D., PA., March 12, 2024) seeks to recover from the Defendants
unpaid wages and overtime compensation, interest, liquidated
damages, attorneys' fees, and costs under the Fair Labor Standards
Act.
The Plaintiffs were employed by the Defendants as distributors.
SCHMIDT BAKING COMPANY, INCORPORATED provides bakery products. The
Company offers bread, rolls, doughnuts, croutons, cakes, pies, and
other bakery products. Schmidt Baking Company serves customer in
the United States. [BN]
The Plaintiff is represented by:
Peter Winebrake, Esq.
Mark J. Gottesfeld, Esq.
WINEBRAKE & SANTILLO, LLC
715 Twinning Road, Suite 211
Dresher, PA 19025
Telephone: (215) 884-2491
SECURITAS SECURITY: Gandy Seeks Security Guards' Unpaid Overtime
----------------------------------------------------------------
LATOYA GANDY and KEONA GANDY, on behalf of themselves and all
others similarly situated, Plaintiffs v. SECURITAS SECURITY
SERVICES USA, INC., Defendant, Case No. 2:24-cv-02146 (C.D. Cal.,
March 15, 2024) is a class action against the Defendant for failure
to pay overtime wages in violation of the Fair Labor Standards Act
of 1938 and the Portal-to-Portal Act.
Plaintiff Latoya Gandy was employed as a security guard employee
from approximately March 2020 through November 2023.
Plaintiff Keona Gandy has been employed as a security guard
employee since September 2022.
Securitas Security Services USA, Inc. is a security company
headquartered in New Jersey. [BN]
The Plaintiffs are represented by:
Colby Qualls, Esq.
FORESTER HAYNIE PLLC
400 N. St. Paul Street, Suite 700
Dallas, TX 75201
Telephone: (214) 210-2100
E-mail: cqualls@foresterhaynie.com
SELECT PORTFOLIO: Wins Bid to Dismiss; Horan FDCPA Suit Stayed
--------------------------------------------------------------
Judge Robin L. Rosenberg of the U.S. District Court for the
Southern District of Florida issued an order granting the
Defendant's motion to dismiss and staying the lawsuit styled LAURIE
HORAN, et al., Plaintiffs v. SELECT PORTFOLIO SERVICING, INC.,
Defendant, Case No. 9:23-cv-81386-RLR (S.D. Fla.).
The matter is before the Court on the Defendant's Motion to
Dismiss. The Motion has been fully briefed. For the reasons set
forth in this Order, the Motion is granted insofar as this case is
dismissed in part and stayed in part.
The lawsuit is a class action case brought under the Fair Debt
Collections Practices Act, with the Plaintiffs alleging that the
Defendant engaged in deceptive and fraudulent debt collection
practices. There are two named Plaintiffs, each of whom relies upon
different factual allegations.
Although he has brought this case under the FDCPA, Plaintiff Ben
Pike owes no debt to the Defendant, nor does the Defendant act as a
collector for any debt that he may owe. Instead, Mr. Pike and the
Defendant are currently engaged in litigation in Florida state
court, where the Defendant is a foreclosing plaintiff and Mr. Pike
is a defendant.
Mr. Pike is not a defendant in state court because of a debt.
Instead, he is a defendant because he holds a junior lien on a
property that the Defendant is seeking to foreclose. An important
factual premise underpinning Mr. Pike's claims is the
communications the parties have exchanged as part of the
foreclosure process.
The Defendant argues that this case should be stayed as to Mr.
Pike, pending the resolution of the parties' foreclosure action.
Mr. Pike disagrees, arguing that the state court foreclosure action
is not a related or parallel proceeding to the debt-collection
action before this Court.
The Court disagrees, finding that this case resembles a published,
binding, recent, and analogous case decided at the Eleventh Circuit
Court of Appeals, Taveras v. Bank of America, 89 F.4th 1279 (2024).
In Taveras, the plaintiff brought federal claims against a
defendant in federal court, just like the instant case.
Judge Rosenberg notes that there also are key issues before the
state court--the validity of certain charges that the Defendant
made in connection with the first mortgage under foreclosure.
Additionally, the state court will have to determine whether the
Defendant has a legal right to foreclose. The validity of the
charges and the legal right to foreclosure are central to Mr.
Pike's federal claims before this Court.
Judge Rosenberg says Mr. Pike alleges that the Defendant used
deceptive means of collecting a debt by claiming it had the legal
right to foreclose and engage in the judicial foreclosure process
when it had not satisfied all legal conditions precedent.
Thus, for the same reasons Colorado River abstention was
appropriate in Tavares, Judge Rosenberg finds that abstention is
appropriate here, particularly when the state foreclosure action is
scheduled to go to trial as soon as next month. All of Mr. Pike's
claims are stayed pending a resolution of his state court
foreclosure proceedings.
The other named Plaintiff is Laurie Horan. Ms. Horan, unlike Mr.
Pike, was a borrower under a loan that the Defendant serviced. Her
loan was foreclosed upon, however, and the state court entered a
final judgment against her in 2021. There are at least two legal
ramifications that flow from the final judgment, and each is fatal
to Ms. Horan's claims before this Court.
First, Judge Rosenberg explains, just as with Mr. Pike, Ms. Horan's
claims are premised upon the validity of certain charges sought by
the Defendant in the state foreclosure process and the legal
validity of the Defendant to utilize the foreclosure process in the
first place. But to the extent Ms. Horan's claims are based upon
the validity of those things (or the Defendant's communications)
prior to the entry of final judgment, her claims are barred by res
judicata and collateral estoppel because those claims could have
been raised in the foreclosure case.
Second, to the extent Ms. Horan's claims are based upon the conduct
of the parties after the entry of final judgment, she simply has
not pled, and cannot plead, any basis for damages, Judge Rosenberg
opines. Ms. Horan's post-judgment claims allege that the Defendant
failed to properly respond to her requests for payoff letters and
that she wanted those letters so she could redeem her property
prior to a foreclosure sale. But those requests for letters cannot
form the basis for damages because Ms. Horan's right to redeem the
property prior to a foreclosure sale is entirely governed by
Florida statute 45.0315, not by any letter or statement generated
by the Defendant.
In short, Judge Rosenberg points out, it was the judgment that
determined what Ms. Horan had to pay to redeem her property, not
any letter that the Defendant may or may not have provided.
For all of the reasons set forth in the Defendant's Motion and
Reply, including reasons the Court did not explain or address,
which the Court adopts and incorporates here as a basis for its
decision, it is ordered and adjudged that Mr. Pike's claims are
stayed and Ms. Horan's claims are dismissed with prejudice as
further amendment would be futile. The Clerk of the Court will
close this case.
A full-text copy of the Court's Order dated March 11, 2024, is
available at https://tinyurl.com/mrxfxtxj from PacerMonitor.com.
STARBUCKS CORPORATION: Faces Bollinger ADA Suit in E.D. California
------------------------------------------------------------------
MARIA BOLLINGER; DAWN MILLER; and SHUNDA SMITH, individually and on
behalf of all other similarly situated, Plaintiffs v. STARBUCKS
CORPORATION, Defendants, Case No. 1:24-cv-00303-JLT-SKO (E.D. Cal.,
March 12, 2024) alleges violation of the Americans with
Disabilities Act.
The Plaintiffs alleges in the complaint that the Defendants violate
ADA by levying a Surcharge for its Non-Dairy Alternatives in the
form of Non-Dairy Alternatives added to its coffee-based drinks and
other beverages.
The Plaintiffs seek declaratory and injunctive relief to ensure
that the Defendant charges the same price to lactose intolerant
customers and customers with milk allergies for the same menu items
as regular customers and that it does not add a Surcharge for
Non-Dairy Alternatives such as soy, almond, coconut, oat, or other
lactose-free milk.
STARBUCKS CORPORATION is the premier roaster, marketer, and
retailer of specialty coffee. The Company offers packaged and
single-serve coffees and teas, beverage-related ingredients, and
ready-to-drink beverages, as well as produces and sells bottled
coffee drinks and a line of ice creams. Starbucks serves customers
worldwide. [BN]
The Plaintiff is represented by:
Trenton R. Kashima, Esq.
MILBERG COLEMAN BRYSON PHILLIPS GROSSMAN PLLC
402 West Broadway, Suite 1760
San Diego, CA 92101
Telephone: (619) 810-7047
Email: tkashima@milberg.com
- and -
Bogdan Enica, Esq.
KEITH GIBSON LAW, P.C.
1200 N. Federal Highway, Suite 200
Boca Raton, FL 33432
Telephone: (305) 539-9206
Email: bogdan@keithgibsonlaw.com
- and -
Keith L. Gibson, Esq.
KEITH GIBSON LAW, P.C.
490 Pennsylvania Avenue Suite 1
Glen Ellyn, IL 60137
Telephone: (630) 677-6745
Email: keith@keithgibsonlaw.com
- and -
Rachel L. Soffin, Esq.
MILBERG COLEMAN BRYSON PHILLIPS GROSSMAN PLLC
3833 Central Avenue
St. Petersburg, FL 33713
Telephone: (865) 247-0080
Email: rsoffin@milberg.com
TECHNOLOGY CREDIT: CTU Dismissed From Genton Consolidated Suit
--------------------------------------------------------------
Chief Judge Algenon L. Marbley of the U.S. District Court for the
Southern District of Ohio, Eastern Division, dismisses the
Plaintiffs' claims against Defendant Technology Credit Union in the
lawsuit entitled Genton, et al. v. Technology Credit Union, et al.,
Case No. 2:22-cv-04310-ALM-EPD (S.D. Ohio).
The case Bowe, et al. v. Cross River Bank, et al., Case No.
2:22-cv-04266, is consolidated with Evans, et al. v. Cross River
Bank, et al., Case No. 1:22-cv-00723; Salazar, et al. v. Cross
River Bank, et al., Case No. 2:22-cv-04314; Riley, et al. v.
Technology Credit Union, et al., Case No. 2:22-cv-04315; Stenger,
et al. v. Technology Credit Union, et al., Case No. 1:22-cv-00721;
Chamberlin, et al. v. Technology Credit Union, et al., Case No.
2:22-cv-04318; and Genton, et al. v. Technology Credit Union, et
al., Case No. 2:22-cv-04310.
These matters are before the Court: Defendant Trivest Partners,
L.P.'s Motion to Dismiss; Defendant Jayson Waller's Motion to
Dismiss; Defendant Sunlight Financial, LLC's Motion to Compel
Arbitration and Dismiss; Defendant Cross River Bank's Motion for
Joinder in Defendant Sunlight, Financial LLC's Motion to Compel
Arbitration and Dismiss Complaint; and Plaintiffs' Motion for
Discovery. These motions and matters from the other cases are also
before the Court.
For all practical purposes, Judge Marbley notes that the motions
are nearly identical. The Court, thus, considers each set of
motions as consolidated motions and, as applicable, will reference
the motions outlined in Bowe, et al. v. Cross River Bank, et al.,
Case No. 2:22-cv-04266. Since Technology Credit Union is not a
party in Bowe, however, the Court will, as applicable, reference
Technology Credit Union's motions outlined in Riley, et al. v.
Technology Credit Union, et al., Case No. 2:22-cv-04315.
For the reasons set in this Opinion & Order, the Court grants
Defendant Trivest Partners, L.P.'s Motions to Dismiss; Defendant
Jayson Waller's Motions to Dismiss; and Defendant Cross River
Bank's and Defendant Technology Credit Union's Motions for Joinder
in Defendant Sunlight Financial, LLC's Motions to Compel
Arbitration and Dismiss.
Additionally, the Court severs all claims against Sunlight
Financial, LLC, from this action. As a result, the Court grants in
part Defendant Sunlight Financial, LLC's Motions to Compel
Arbitration and Dismiss, such that the motions are granted as to
Defendant Cross River Bank and Defendant Technology Credit Union
but stayed Defendant Sunlight Financial, LLC's Motions to Compel
Arbitration and Dismiss as to Defendant Sunlight. Finally, the
Court denies the Plaintiffs' Motions for Discovery.
As the Court is granting Cross River's and TCU's motions to join
Sunlight's motions to compel arbitration, the Court treats
Sunlight's motions to compel arbitration as being brought by each
of the three Defendants. Hence, this Opinion & Order reflects that
the motions to compel arbitration are partially granted and
partially stayed.
The complaints filed by the Plaintiffs in each of these seven cases
are substantially similar, as are the facts and allegations
contained therein. As such, the Court issued an order consolidating
the cases sua sponte. The Court, thus, recites the common facts of
this case as the Plaintiffs allege them across the consolidated
cases, specifying the facts on a party-specific basis where
necessary.
The consolidated cases stem from a purported business operation
that allegedly used false promises, deceptive advertisement, and
pressured sales tactics to sell customers overpriced and defective
residential solar panel systems. The Plaintiffs are Gregory and
Rebekah Bowe (Case No. 2:22-cv-04266, "Bowe"); Deanna and
Christopher Evans (Case No. 1:22-cv-00723, "Evans"); Stephen and
Mallori Salazar (Case No. 2:22-cv-04314, "Salazar"); John and Mary
Riley (Case No. 2:22-cv-04315, "Riley"); Bree-Ann and Brian Stenger
(Case No. 1:22-cv-00721, "Stenger"); Thomas and Amanda Chamberlin
(Case No. 2:22-cv-04318, "Chamberlin"); and Nathan and Tiffany
Genton (Case No. 2:22-cv-04310, "Genton").
The Bowe, Evans, and Salazar Plaintiffs sued Defendants Cross River
Bank, Sunlight Financial, LLC, Jayson Waller, and Trivest Partners,
L.P. The Riley, Stenger, Chamberlin, and Genton Plaintiffs also
sued Sunlight, Waller, and Trivest, but sued Defendant Technology
Credit Union ("TCU") rather than Cross River.
To provide context on the Defendants, Cross River and TCU are
credit unions who, along with Sunlight, provided loans to the
Plaintiffs for the purchase of the solar panel system from the now
defunct solar panel company, Power Home Solar, LLC (d/b/a Pink
Energy) ("Pink Energy"). Trivest is a private equity company that
invested in Pink Energy. Waller was a corporate officer of Pink
Energy. The Plaintiffs allege Trivest and/or Waller worked with
Pink Energy to solicit, sell, install, and maintain solar power
energy systems designed for residential use. The Plaintiffs also
allege Cross River and TCU acted by and through Sunlight to provide
financing to the Plaintiffs in the purchase of the Pink Energy
solar panel system.
In 2018, Trivest, through Waller, purchased a 25% ownership
interest in Pink Energy and became involved in the day-to-day
operation of Pink Energy. On Oct. 7, 2022, Pink Energy filed for
bankruptcy and, as such, has not been added as a party to these
lawsuits. The Plaintiffs, however, refer to the Defendants
collectively as the "Pink Energy Group" through their complaints.
Before turning to the procedural history in these consolidated
cases, the Court considers the procedural history of a related case
that began close in time. On Nov. 13, 2022, the plaintiffs in Hall,
et al. v. Trivest Partners L.P., et al. (Case No. 4:22-cv-12743)
("Hall") filed a nationwide class action lawsuit in the U.S.
District Court for the Eastern District of Michigan. The Hall
complaint arose from the same purported business operation that
allegedly used false promises, deceptive advertisement, and
pressured sales tactics to sell customers Pink Energy's overpriced
and defective home solar panel systems.
The three defendants in Hall are Trivest, Waller, and TGIF Power
Home Investor, LLC (later known as Pink Energy). The plaintiffs in
Hall allege three causes of action: Racketeer Influenced and
Corrupt Organizations Act ("RICO"), in violation of 18 U.S.C.
Sections 1962(a) and (c); Conspiracy to Violate RICO, in violation
of 18 U.S.C. Section 1962(d); and violations of the Michigan
Consumer Protections Act.
The putative class in Hall, which the court has not yet certified,
includes: "[a]ll persons in the United States who purchased a home
solar system from Power Home Solar, LLC (including d/b/a/ Pink
Energy) at any time since January 1, 2018."
The Plaintiffs filed their complaints in these consolidated cases
on Dec. 7, 2022, approximately one month after the complaint in
Hall was filed. The Plaintiffs' complaints bring forth 13 claims
against the Defendants, which include Breach of Contract (against
all Defendants), Fraudulent Misrepresentation (against all
Defendants), and Negligent Misrepresentation (against all
Defendants).
After the Plaintiffs filed their complaints, Trivest and Waller
filed Motions to Dismiss in all cases; Sunlight filed Motions to
Compel Arbitration and Dismiss in all cases; Cross River filed
Motions to Join Sunlight's Motions to Compel Arbitration and
Dismiss in Bowe, Evans, and Salazar; TCU filed Motions to Join
Sunlight's Motions to Compel Arbitration and Dismiss in Riley,
Stenger, Chamberlin, and Genton; and Plaintiffs filed Motions for
Discovery in all cases requesting to conduct limited discovery on
whether the arbitration provision at issue is enforceable.
The Plaintiffs filed responses in opposition to the various motions
to dismiss and motions to compel arbitration. The Plaintiffs,
however, did not oppose Cross River's or TCU's motions to join
Sunlight's motions. The Defendants filed responses in opposition to
the Plaintiffs' motions for limited discovery. The Court notes,
however, that on Nov. 3, 2023, Sunlight filed notice with the Court
that Sunlight Financial Holdings, Inc., and its debtor affiliates,
including Sunlight, commenced bankruptcy proceedings on Oct. 30,
2023.
A. Trivest's Motions to Dismiss
The Court first considers Trivest's motions to dismiss, which argue
that Trivest should be dismissed from this consolidated lawsuit
because the first to file rule applies, the Court lacks personal
jurisdiction over Trivest, and the Plaintiffs fail to state a claim
against Trivest.
Trivest argues Hall was filed before these consolidated cases were
filed and the resolution of Hall could resolve these consolidated
cases. The Plaintiffs respond that the first-to-file rule is
inapplicable here because Hall concerns substantially different
claims and parties from these consolidated cases.
First, the Court finds Hall predates these consolidated cases.
Second, when evaluating the similarity of the parties involved, the
Court finds the parties involved do not substantially overlap.
While the definition of the putative class in Hall is broad enough
to include the Plaintiffs and Hall defendants include Trivest and
Waller, Hall does not include Defendants Sunlight, Cross River, and
TCU, who are parties in these consolidated cases. Third, when
evaluating the similarity of the issues or claims at stake, the
Court finds the cases do not substantially overlap.
While Hall concerns the same scheme to defraud customers in
purchasing faulty residential solar panel systems from Pink Energy,
none of the 13 causes of action in these consolidated cases is pled
in Hall, Judge Marbley points out. Rather, Hall alleges RICO
violations and violations of the Michigan Consumer Sales Practices
Act. Since the actions do not raise the same claims arising under
the same laws, this factor weighs against application of the
first-to-file rule.
Overall, when evaluating the three factors of the first-to-file
rule, the Court does not find it appropriate to dismiss or stay
these consolidated cases based on Hall. Accordingly, Trivest's
motions to dismiss based on the first-to-file rule are denied.
While the Court refrains from a sweeping generalization that a
minority share and day-to-day operational involvement can never be
enough to establish specific jurisdiction, the Court finds the
Plaintiffs' allegations insufficient. For this reason, Trivest's
motions to dismiss are granted.
Despite finding the Court lacks personal jurisdiction over Trivest,
Judge Marbley analyzed Trivest's motion to dismiss for failure to
state a claim. The Court finds that the Plaintiffs fail to state a
valid claim against Trivest.
B. Waller's Motions to Dismiss
The Court next turns to Waller's motions to dismiss, which argue
Waller should be dismissed from this lawsuit because the Plaintiffs
fail to establish his personal liability and fail to adequately
plead their fraud and negligence-based claims against him.
Mr. Waller argues that he should be dismissed from this lawsuit
because the Plaintiffs never allege that he was directly involved
in the events that caused their injuries and, even if they had, he
is not personally liable for Pink Energy's actions because he was a
mere corporate officer. The Plaintiffs respond that they adequately
pled Waller's liability because they allege he was intimately
involved in the day-to-day operations of Pink Energy, designed and
taught the sales tactics that were used to defraud the Plaintiffs,
and had control over Pink Energy.
The Court finds the Plaintiffs fail to make any allegations which,
if proven, would render Waller personally liable for their alleged
injuries. Most of the Plaintiffs' allegations are directed at the
"Pink Energy Group" rather than Waller specifically. The specific
allegations against Waller are limited, among other things, to the
following: Waller was "intimately involved in designing,
implementing, and teaching the fraudulent sales practices employed
by Pink Energy's Agents/Employees."
Judge Marbley finds these allegations against Waller pertain to his
level of influence over Pink Energy's day-to-day operations and
tactics. None of them suggests that Waller himself interacted with
the Plaintiffs, or even that he directed the sales personnel, who
visited the Plaintiffs at their homes to utilize the hard-sell
tactics that he allegedly developed. Further, the Plaintiffs make
no allegations indicating Waller exercised complete or
near-complete dominion over Pink Energy to the extent that Pink
Energy lacked any effective autonomy.
In short, Judge Marbley says, there are no allegations that Pink
Energy is indistinguishable from Waller himself. As such, the Court
finds the Plaintiffs fail to plead Waller's personal liability. For
that reason, Waller's motions to dismiss are granted.
The Court also finds that the Plaintiffs fail to state valid
fraud-based claims against Waller, and fail to state a valid claim
for negligent retention/hiring and training. The Court adds that
the economic loss rule bars the Plaintiffs' negligence claim
against Waller.
C. Sunlight's Motions to Compel Arbitration and Dismiss,
Cross River's and TCU's Motions for Joinder in
Sunlight's Motion, and Plaintiffs' Motions for Discovery
On Oct. 30, 2023, Sunlight initiated bankruptcy proceedings. Since
Sunlight is a defendant in these consolidated cases, there is no
question that these lawsuits are "against the debtor." The
automatic stay applies to Sunlight and, therefore, the Court finds
it cannot issue an opinion on Sunlight's Motions to Compel
Arbitration and Dismiss at this time.
The Court finds Defendant Sunlight is not a required party since a
resolution of the claims against Sunlight would not resolve the
Plaintiffs' claims against the other Defendants. Put differently,
Judge Marbley explains each of the claims for relief sought by the
Plaintiffs could be effectively enforced against the other
Defendants without the need for Sunlight.
Therefore, the Court finds it promotes judicial efficiency to sever
all claims against Defendant Sunlight from these consolidated cases
and stay Sunlight's Motions to Compel Arbitration and Dismiss.
The Court next turns to Cross River's and TCU's Motions for Joinder
in Sunlight's Motions to Compel Arbitration and Dismiss. Since
Cross River and TCU are parties to the same Loan Agreements between
the Plaintiffs and Sunlight, the Court grants Cross River's and
TCU's Motions for Joinder in Sunlight's Motions to Compel
Arbitration and Dismiss.
Accordingly, the Court addresses the motions to compel arbitration
and dismiss as if Cross River and TCU were standing in Sunlight's
shoes.
In the motions to compel arbitration and dismiss, the parties
debate the enforceability of the Arbitration Provision contained in
the Loan Agreements that the Plaintiffs signed. Cross River/TCU
argue that the Plaintiffs entered into a valid arbitration
agreement and their claims against them are subject to arbitration.
The Plaintiffs respond that the Arbitration Provision in the Loan
Agreement should be voided because it was borne of fraud and is
unconscionable.
While the Plaintiffs provided an affidavit from counsel stating
they need depositions of sales personnel and corporate
representatives to gather information about Pink Energy's sales
practices and training, the Court finds the Plaintiffs have not
shown why they need such discovery to justify its position. In
fact, the Plaintiffs responded to Sunlight's motions before filing
their motions for discovery, and they detail in their responses in
opposition to Sunlight's motions how the sales in these cases were
conducted. Accordingly, the Plaintiffs' Motions for Discovery is
denied.
Judge Marbley notes that the Arbitration Provision specifically
states that any disputes about the validity, enforceability,
coverage, or scope of the Arbitration Provision are for the court
and not the arbitrator to decide, while disputes about the validity
or enforceability of the Note (i.e. Loan Agreement) is for the
arbitrator and not the court to decide. Accordingly, the Court
finds it has the authority to resolve the parties' disputes
surrounding the Arbitration Provision itself, but not the Loan
Agreement as a whole.
Judge Marbley finds that all of the Plaintiffs' allegations against
Cross River and TCU meet the definition of "claim" within the
Arbitration Provision since they all relate to the marketing, sale,
purchase, and installation of their solar panel system. Therefore,
the Court finds all of the Plaintiffs' claims against Cross River
and TCU are subject to arbitration.
The Plaintiffs argue the Arbitration Provision is procedurally
unconscionable because they were rushed to sign it without being
told about it. Judge Marbley points out that there is no evidence
before the Court, though, that they were too young, lacked
education, intelligence, and/or business acumen and experience,
and/or had such unequal bargaining power as to render the
Arbitration Provision procedurally unconscionable. Rather, the
evidence shows the Plaintiffs voluntarily signed the Loan Agreement
immediately below and above acknowledgments stating that they
agreed to the Arbitration Provision limiting their ability to
litigate any future dispute.
While the Plaintiffs may have felt they were rushed to sign the
agreements because they did not want to miss out on the sales
promotions, there is no evidence before the Court that they were
not given an opportunity to read the contracts and provisions
therein. Accordingly, the Court finds the Arbitration Provision is
not procedurally or substantively unconscionable.
Having found that the Plaintiffs' claims are subject to arbitration
and the Arbitration Provision is not unconscionable, the Court last
determines whether it should dismiss the claims against Cross River
and TCU as requested or enter a stay of the action. When all claims
fall under the scope of an arbitration agreement, Judge Marbley
explains that a court is to direct the parties to proceed to
arbitration and dismiss the claims, without prejudice and subject
to reinstatement, if necessary, so no further action is required of
the court, except to enter judgment.
Since the Court found all claims against Cross River and TCU fall
under the scope of the arbitration provision, the Court finds it
appropriate to dismiss, rather than stay, the Plaintiffs' claims
against Cross River and TCU. Accordingly, Cross River's and TCU's
Motions to Compel Arbitration and Dismiss are granted.
For the reasons set forth in this Opinion & Order, the Court grants
Defendant Trivest Partners, L.P.'s Motions to Dismiss; Defendant
Jayson Waller's Motions to Dismiss; and Defendant Cross River
Bank's and Defendant Technology Credit Union's Motions for Joinder
in Defendant Sunlight Financial, LLC's Motions to Compel
Arbitration and Dismiss. Additionally, the Court severs all claims
against Sunlight Financial, LLC from this action.
As a result, the Court grants in part Defendant Sunlight Financial,
LLC's Motions to Compel Arbitration and Dismiss, such that the
motions are granted as to Defendant Cross River Bank and Defendant
Technology Credit Union but stayed Defendant Sunlight Financial,
LLC's Motions to Compel Arbitration and Dismiss as to Defendant
Sunlight. Finally, the Court denies the Plaintiffs' Motions for
Discovery.
Based on the Court's rulings, the claims against Defendants Trivest
Partners, L.P., and Jayson Waller are dismissed in all cases. The
claims against Defendant Cross River Bank are dismissed in Bowe,
Evans, and Salazar, and the claims against Defendant Technology
Credit Union are dismissed in Riley, Stenger, Chamberlin, and
Genton.
The Plaintiffs are ordered to submit their claims against Defendant
Cross River Bank and Defendant Technology Credit Union to
arbitration according to the terms of the Loan Agreements.
A full-text copy of the Court's Opinion & Order dated March 11,
2024, is available at https://tinyurl.com/yvjnfdzz from
PacerMonitor.com.
TECHNOLOGY CREDIT: Ohio Court Dismisses CTU From Chamberlin Suit
----------------------------------------------------------------
Chief Judge Algenon L. Marbley of the U.S. District Court for the
Southern District of Ohio, Eastern Division, dismisses the
Plaintiffs' claims against Defendant Technology Credit Union in the
lawsuit captioned Chamberlin, et al. v. Technology Credit Union, et
al., Case No. 2:22-cv-04318-ALM-EPD (S.D. Ohio).
The case Bowe, et al. v. Cross River Bank, et al., Case No.
2:22-cv-04266, is consolidated with Evans, et al. v. Cross River
Bank, et al., Case No. 1:22-cv-00723; Salazar, et al. v. Cross
River Bank, et al., Case No. 2:22-cv-04314; Riley, et al. v.
Technology Credit Union, et al., Case No. 2:22-cv-04315; Stenger,
et al. v. Technology Credit Union, et al., Case No. 1:22-cv-00721;
Chamberlin, et al. v. Technology Credit Union, et al., Case No.
2:22-cv-04318; and Genton, et al. v. Technology Credit Union, et
al., Case No. 2:22-cv-04310.
These matters are before the Court: Defendant Trivest Partners,
L.P.'s Motion to Dismiss; Defendant Jayson Waller's Motion to
Dismiss; Defendant Sunlight Financial, LLC's Motion to Compel
Arbitration and Dismiss; Defendant Cross River Bank's Motion for
Joinder in Defendant Sunlight, Financial LLC's Motion to Compel
Arbitration and Dismiss Complaint; and Plaintiffs' Motion for
Discovery. These motions and matters from the other cases are also
before the Court.
For all practical purposes, Judge Marbley notes that the motions
are nearly identical. The Court, thus, considers each set of
motions as consolidated motions and, as applicable, will reference
the motions outlined in Bowe, et al. v. Cross River Bank, et al.,
Case No. 2:22-cv-04266. Since Technology Credit Union is not a
party in Bowe, however, the Court will, as applicable, reference
Technology Credit Union's motions outlined in Riley, et al. v.
Technology Credit Union, et al., Case No. 2:22-cv-04315.
For the reasons set in this Opinion & Order, the Court grants
Defendant Trivest Partners, L.P.'s Motions to Dismiss; Defendant
Jayson Waller's Motions to Dismiss; and Defendant Cross River
Bank's and Defendant Technology Credit Union's Motions for Joinder
in Defendant Sunlight Financial, LLC's Motions to Compel
Arbitration and Dismiss.
Additionally, the Court severs all claims against Sunlight
Financial, LLC, from this action. As a result, the Court grants in
part Defendant Sunlight Financial, LLC's Motions to Compel
Arbitration and Dismiss, such that the motions are granted as to
Defendant Cross River Bank and Defendant Technology Credit Union
but stayed Defendant Sunlight Financial, LLC's Motions to Compel
Arbitration and Dismiss as to Defendant Sunlight. Finally, the
Court denies the Plaintiffs' Motions for Discovery.
As the Court is granting Cross River's and TCU's motions to join
Sunlight's motions to compel arbitration, the Court treats
Sunlight's motions to compel arbitration as being brought by each
of the three Defendants. Hence, this Opinion & Order reflects that
the motions to compel arbitration are partially granted and
partially stayed.
The complaints filed by the Plaintiffs in each of these seven cases
are substantially similar, as are the facts and allegations
contained therein. As such, the Court issued an order consolidating
the cases sua sponte. The Court, thus, recites the common facts of
this case as the Plaintiffs allege them across the consolidated
cases, specifying the facts on a party-specific basis where
necessary.
The consolidated cases stem from a purported business operation
that allegedly used false promises, deceptive advertisement, and
pressured sales tactics to sell customers overpriced and defective
residential solar panel systems. The Plaintiffs are Gregory and
Rebekah Bowe (Case No. 2:22-cv-04266, "Bowe"); Deanna and
Christopher Evans (Case No. 1:22-cv-00723, "Evans"); Stephen and
Mallori Salazar (Case No. 2:22-cv-04314, "Salazar"); John and Mary
Riley (Case No. 2:22-cv-04315, "Riley"); Bree-Ann and Brian Stenger
(Case No. 1:22-cv-00721, "Stenger"); Thomas and Amanda Chamberlin
(Case No. 2:22-cv-04318, "Chamberlin"); and Nathan and Tiffany
Genton (Case No. 2:22-cv-04310, "Genton").
The Bowe, Evans, and Salazar Plaintiffs sued Defendants Cross River
Bank, Sunlight Financial, LLC, Jayson Waller, and Trivest Partners,
L.P. The Riley, Stenger, Chamberlin, and Genton Plaintiffs also
sued Sunlight, Waller, and Trivest, but sued Defendant Technology
Credit Union ("TCU") rather than Cross River.
To provide context on the Defendants, Cross River and TCU are
credit unions who, along with Sunlight, provided loans to the
Plaintiffs for the purchase of the solar panel system from the now
defunct solar panel company, Power Home Solar, LLC (d/b/a Pink
Energy). Trivest is a private equity company that invested in Pink
Energy. Waller was a corporate officer of Pink Energy. The
Plaintiffs allege Trivest and/or Waller worked with Pink Energy to
solicit, sell, install, and maintain solar power energy systems
designed for residential use. The Plaintiffs also allege Cross
River and TCU acted by and through Sunlight to provide financing to
the Plaintiffs in the purchase of the Pink Energy solar panel
system.
In 2018, Trivest, through Waller, purchased a 25% ownership
interest in Pink Energy and became involved in the day-to-day
operation of Pink Energy. On Oct. 7, 2022, Pink Energy filed for
bankruptcy and, as such, has not been added as a party to these
lawsuits. The Plaintiffs, however, refer to the Defendants
collectively as the "Pink Energy Group" through their complaints.
Before turning to the procedural history in these consolidated
cases, the Court considers the procedural history of a related case
that began close in time. On Nov. 13, 2022, the plaintiffs in Hall,
et al. v. Trivest Partners L.P., et al. (Case No. 4:22-cv-12743)
("Hall") filed a nationwide class action lawsuit in the U.S.
District Court for the Eastern District of Michigan. The Hall
complaint arose from the same purported business operation that
allegedly used false promises, deceptive advertisement, and
pressured sales tactics to sell customers Pink Energy's overpriced
and defective home solar panel systems.
The three defendants in Hall are Trivest, Waller, and TGIF Power
Home Investor, LLC (later known as Pink Energy). The plaintiffs in
Hall allege three causes of action: Racketeer Influenced and
Corrupt Organizations Act ("RICO"), in violation of 18 U.S.C.
Sections 1962(a) and (c); Conspiracy to Violate RICO, in violation
of 18 U.S.C. Section 1962(d); and violations of the Michigan
Consumer Protections Act.
The putative class in Hall, which the court has not yet certified,
includes: "[a]ll persons in the United States who purchased a home
solar system from Power Home Solar, LLC (including d/b/a/ Pink
Energy) at any time since January 1, 2018."
The Plaintiffs filed their complaints in these consolidated cases
on Dec. 7, 2022, approximately one month after the complaint in
Hall was filed. The Plaintiffs' complaints bring forth 13 claims
against the Defendants, which include Breach of Contract (against
all Defendants), Fraudulent Misrepresentation (against all
Defendants), and Negligent Misrepresentation (against all
Defendants).
After the Plaintiffs filed their complaints, Trivest and Waller
filed Motions to Dismiss in all cases; Sunlight filed Motions to
Compel Arbitration and Dismiss in all cases; Cross River filed
Motions to Join Sunlight's Motions to Compel Arbitration and
Dismiss in Bowe, Evans, and Salazar; TCU filed Motions to Join
Sunlight's Motions to Compel Arbitration and Dismiss in Riley,
Stenger, Chamberlin, and Genton; and Plaintiffs filed Motions for
Discovery in all cases requesting to conduct limited discovery on
whether the arbitration provision at issue is enforceable.
The Plaintiffs filed responses in opposition to the various motions
to dismiss and motions to compel arbitration. The Plaintiffs,
however, did not oppose Cross River's or TCU's motions to join
Sunlight's motions. The Defendants filed responses in opposition to
the Plaintiffs' motions for limited discovery. The Court notes,
however, that on Nov. 3, 2023, Sunlight filed notice with the Court
that Sunlight Financial Holdings, Inc., and its debtor affiliates,
including Sunlight, commenced bankruptcy proceedings on Oct. 30,
2023.
A. Trivest's Motions to Dismiss
The Court first considers Trivest's motions to dismiss, which argue
that Trivest should be dismissed from this consolidated lawsuit
because the first to file rule applies, the Court lacks personal
jurisdiction over Trivest, and the Plaintiffs fail to state a claim
against Trivest.
Trivest argues Hall was filed before these consolidated cases were
filed and the resolution of Hall could resolve these consolidated
cases. The Plaintiffs respond that the first-to-file rule is
inapplicable here because Hall concerns substantially different
claims and parties from these consolidated cases.
First, the Court finds Hall predates these consolidated cases.
Second, when evaluating the similarity of the parties involved, the
Court finds the parties involved do not substantially overlap.
While the definition of the putative class in Hall is broad enough
to include the Plaintiffs and Hall defendants include Trivest and
Waller, Hall does not include Defendants Sunlight, Cross River, and
TCU, who are parties in these consolidated cases. Third, when
evaluating the similarity of the issues or claims at stake, the
Court finds the cases do not substantially overlap.
While Hall concerns the same scheme to defraud customers in
purchasing faulty residential solar panel systems from Pink Energy,
none of the 13 causes of action in these consolidated cases is pled
in Hall, Judge Marbley points out. Rather, Hall alleges RICO
violations and violations of the Michigan Consumer Sales Practices
Act. Since the actions do not raise the same claims arising under
the same laws, this factor weighs against application of the
first-to-file rule.
Overall, when evaluating the three factors of the first-to-file
rule, the Court does not find it appropriate to dismiss or stay
these consolidated cases based on Hall. Accordingly, Trivest's
motions to dismiss based on the first-to-file rule are denied.
While the Court refrains from a sweeping generalization that a
minority share and day-to-day operational involvement can never be
enough to establish specific jurisdiction, the Court finds the
Plaintiffs' allegations insufficient. For this reason, Trivest's
motions to dismiss are granted.
Despite finding the Court lacks personal jurisdiction over Trivest,
Judge Marbley analyzed Trivest's motion to dismiss for failure to
state a claim. The Court finds that the Plaintiffs fail to state a
valid claim against Trivest.
B. Waller's Motions to Dismiss
The Court next turns to Waller's motions to dismiss, which argue
Waller should be dismissed from this lawsuit because the Plaintiffs
fail to establish his personal liability and fail to adequately
plead their fraud and negligence-based claims against him.
Mr. Waller argues that he should be dismissed from this lawsuit
because the Plaintiffs never allege that he was directly involved
in the events that caused their injuries and, even if they had, he
is not personally liable for Pink Energy's actions because he was a
mere corporate officer. The Plaintiffs respond that they adequately
pled Waller's liability because they allege he was intimately
involved in the day-to-day operations of Pink Energy, designed and
taught the sales tactics that were used to defraud the Plaintiffs,
and had control over Pink Energy.
The Court finds the Plaintiffs fail to make any allegations which,
if proven, would render Waller personally liable for their alleged
injuries. Most of the Plaintiffs' allegations are directed at the
"Pink Energy Group" rather than Waller specifically. The specific
allegations against Waller are limited, among other things, to the
following: Waller was "intimately involved in designing,
implementing, and teaching the fraudulent sales practices employed
by Pink Energy's Agents/Employees."
Judge Marbley finds these allegations against Waller pertain to his
level of influence over Pink Energy's day-to-day operations and
tactics. None of them suggests that Waller himself interacted with
the Plaintiffs, or even that he directed the sales personnel, who
visited the Plaintiffs at their homes to utilize the hard-sell
tactics that he allegedly developed. Further, the Plaintiffs make
no allegations indicating Waller exercised complete or
near-complete dominion over Pink Energy to the extent that Pink
Energy lacked any effective autonomy.
In short, Judge Marbley says, there are no allegations that Pink
Energy is indistinguishable from Waller himself. As such, the Court
finds the Plaintiffs fail to plead Waller's personal liability. For
that reason, Waller's motions to dismiss are granted.
The Court also finds that the Plaintiffs fail to state valid
fraud-based claims against Waller, and fail to state a valid claim
for negligent retention/hiring and training. The Court adds that
the economic loss rule bars the Plaintiffs' negligence claim
against Waller.
C. Sunlight's Motions to Compel Arbitration and Dismiss,
Cross River's and TCU's Motions for Joinder in
Sunlight's Motion, and Plaintiffs' Motions for Discovery
On Oct. 30, 2023, Sunlight initiated bankruptcy proceedings. Since
Sunlight is a defendant in these consolidated cases, there is no
question that these lawsuits are "against the debtor." The
automatic stay applies to Sunlight and, therefore, the Court finds
it cannot issue an opinion on Sunlight's Motions to Compel
Arbitration and Dismiss at this time.
The Court finds Defendant Sunlight is not a required party since a
resolution of the claims against Sunlight would not resolve the
Plaintiffs' claims against the other Defendants. Put differently,
Judge Marbley explains each of the claims for relief sought by the
Plaintiffs could be effectively enforced against the other
Defendants without the need for Sunlight.
Therefore, the Court finds it promotes judicial efficiency to sever
all claims against Defendant Sunlight from these consolidated cases
and stay Sunlight's Motions to Compel Arbitration and Dismiss.
The Court next turns to Cross River's and TCU's Motions for Joinder
in Sunlight's Motions to Compel Arbitration and Dismiss. Since
Cross River and TCU are parties to the same Loan Agreements between
the Plaintiffs and Sunlight, the Court grants Cross River's and
TCU's Motions for Joinder in Sunlight's Motions to Compel
Arbitration and Dismiss.
Accordingly, the Court addresses the motions to compel arbitration
and dismiss as if Cross River and TCU were standing in Sunlight's
shoes.
In the motions to compel arbitration and dismiss, the parties
debate the enforceability of the Arbitration Provision contained in
the Loan Agreements that the Plaintiffs signed. Cross River/TCU
argue that the Plaintiffs entered into a valid arbitration
agreement and their claims against them are subject to arbitration.
The Plaintiffs respond that the Arbitration Provision in the Loan
Agreement should be voided because it was borne of fraud and is
unconscionable.
While the Plaintiffs provided an affidavit from counsel stating
they need depositions of sales personnel and corporate
representatives to gather information about Pink Energy's sales
practices and training, the Court finds the Plaintiffs have not
shown why they need such discovery to justify its position. In
fact, the Plaintiffs responded to Sunlight's motions before filing
their motions for discovery, and they detail in their responses in
opposition to Sunlight's motions how the sales in these cases were
conducted. Accordingly, the Plaintiffs' Motions for Discovery is
denied.
Judge Marbley notes that the Arbitration Provision specifically
states that any disputes about the validity, enforceability,
coverage, or scope of the Arbitration Provision are for the court
and not the arbitrator to decide, while disputes about the validity
or enforceability of the Note (i.e. Loan Agreement) is for the
arbitrator and not the court to decide. Accordingly, the Court
finds it has the authority to resolve the parties' disputes
surrounding the Arbitration Provision itself, but not the Loan
Agreement as a whole.
Judge Marbley finds that all of the Plaintiffs' allegations against
Cross River and TCU meet the definition of "claim" within the
Arbitration Provision since they all relate to the marketing, sale,
purchase, and installation of their solar panel system. Therefore,
the Court finds all of the Plaintiffs' claims against Cross River
and TCU are subject to arbitration.
The Plaintiffs argue the Arbitration Provision is procedurally
unconscionable because they were rushed to sign it without being
told about it. Judge Marbley points out that there is no evidence
before the Court, though, that they were too young, lacked
education, intelligence, and/or business acumen and experience,
and/or had such unequal bargaining power as to render the
Arbitration Provision procedurally unconscionable. Rather, the
evidence shows the Plaintiffs voluntarily signed the Loan Agreement
immediately below and above acknowledgments stating that they
agreed to the Arbitration Provision limiting their ability to
litigate any future dispute.
While the Plaintiffs may have felt they were rushed to sign the
agreements because they did not want to miss out on the sales
promotions, there is no evidence before the Court that they were
not given an opportunity to read the contracts and provisions
therein. Accordingly, the Court finds the Arbitration Provision is
not procedurally or substantively unconscionable.
Having found that the Plaintiffs' claims are subject to arbitration
and the Arbitration Provision is not unconscionable, the Court last
determines whether it should dismiss the claims against Cross River
and TCU as requested or enter a stay of the action. When all claims
fall under the scope of an arbitration agreement, Judge Marbley
explains that a court is to direct the parties to proceed to
arbitration and dismiss the claims, without prejudice and subject
to reinstatement, if necessary, so no further action is required of
the court, except to enter judgment.
Since the Court found all claims against Cross River and TCU fall
under the scope of the arbitration provision, the Court finds it
appropriate to dismiss, rather than stay, the Plaintiffs' claims
against Cross River and TCU. Accordingly, Cross River's and TCU's
Motions to Compel Arbitration and Dismiss are granted.
For the reasons set forth in this Opinion & Order, the Court grants
Defendant Trivest Partners, L.P.'s Motions to Dismiss; Defendant
Jayson Waller's Motions to Dismiss; and Defendant Cross River
Bank's and Defendant Technology Credit Union's Motions for Joinder
in Defendant Sunlight Financial, LLC's Motions to Compel
Arbitration and Dismiss. Additionally, the Court severs all claims
against Sunlight Financial, LLC from this action.
As a result, the Court grants in part Defendant Sunlight Financial,
LLC's Motions to Compel Arbitration and Dismiss, such that the
motions are granted as to Defendant Cross River Bank and Defendant
Technology Credit Union but stayed Defendant Sunlight Financial,
LLC's Motions to Compel Arbitration and Dismiss as to Defendant
Sunlight. Finally, the Court denies the Plaintiffs' Motions for
Discovery.
Based on the Court's rulings, the claims against Defendants Trivest
Partners, L.P., and Jayson Waller are dismissed in all cases. The
claims against Defendant Cross River Bank are dismissed in Bowe,
Evans, and Salazar, and the claims against Defendant Technology
Credit Union are dismissed in Riley, Stenger, Chamberlin, and
Genton.
The Plaintiffs are ordered to submit their claims against Defendant
Cross River Bank and Defendant Technology Credit Union to
arbitration according to the terms of the Loan Agreements.
A full-text copy of the Court's Opinion & Order dated March 11,
2024, is available at https://tinyurl.com/4jfr5pa2 from
PacerMonitor.com.
TECHNOLOGY CREDIT: Trivest's Bids to Dismiss in Riley Suit Granted
------------------------------------------------------------------
Chief Judge Algenon L. Marbley of the U.S. District Court for the
Southern District of Ohio, Eastern Division, grants Defendant
Trivest Partners, L.P.'s motions to dismiss in the lawsuit styled
Riley, et al. v. Technology Credit Union, et al., Case No.
2:22-cv-04315-ALM-EPD (S.D. Ohio).
The case Bowe, et al. v. Cross River Bank, et al., Case No.
2:22-cv-04266, is consolidated with Evans, et al. v. Cross River
Bank, et al., Case No. 1:22-cv-00723; Salazar, et al. v. Cross
River Bank, et al., Case No. 2:22-cv-04314; Riley, et al. v.
Technology Credit Union, et al., Case No. 2:22-cv-04315; Stenger,
et al. v. Technology Credit Union, et al., Case No. 1:22-cv-00721;
Chamberlin, et al. v. Technology Credit Union, et al., Case No.
2:22-cv-04318; and Genton, et al. v. Technology Credit Union, et
al., Case No. 2:22-cv-04310.
These matters are before the Court: Defendant Trivest Partners,
L.P.'s Motion to Dismiss; Defendant Jayson Waller's Motion to
Dismiss; Defendant Sunlight Financial, LLC's Motion to Compel
Arbitration and Dismiss; Defendant Cross River Bank's Motion for
Joinder in Defendant Sunlight, Financial LLC's Motion to Compel
Arbitration and Dismiss Complaint; and Plaintiffs' Motion for
Discovery. These motions and matters from the other cases are also
before the Court.
For all practical purposes, Judge Marbley notes that the motions
are nearly identical. The Court, thus, considers each set of
motions as consolidated motions and, as applicable, will reference
the motions outlined in Bowe, et al. v. Cross River Bank, et al.,
Case No. 2:22-cv-04266. Since Technology Credit Union is not a
party in Bowe, however, the Court will, as applicable, reference
Technology Credit Union's motions outlined in Riley, et al. v.
Technology Credit Union, et al., Case No. 2:22-cv-04315.
For the reasons set in this Opinion & Order, the Court grants
Defendant Trivest Partners, L.P.'s Motions to Dismiss; Defendant
Jayson Waller's Motions to Dismiss; and Defendant Cross River
Bank's and Defendant Technology Credit Union's Motions for Joinder
in Defendant Sunlight Financial, LLC's Motions to Compel
Arbitration and Dismiss.
Additionally, the Court severs all claims against Sunlight
Financial, LLC, from this action. As a result, the Court grants in
part Defendant Sunlight Financial, LLC's Motions to Compel
Arbitration and Dismiss, such that the motions are granted as to
Defendant Cross River Bank and Defendant Technology Credit Union
but stayed Defendant Sunlight Financial, LLC's Motions to Compel
Arbitration and Dismiss as to Defendant Sunlight. Finally, the
Court denies the Plaintiffs' Motions for Discovery.
As the Court is granting Cross River's and TCU's motions to join
Sunlight's motions to compel arbitration, the Court treats
Sunlight's motions to compel arbitration as being brought by each
of the three Defendants. Hence, this Opinion & Order reflects that
the motions to compel arbitration are partially granted and
partially stayed.
The complaints filed by the Plaintiffs in each of these seven cases
are substantially similar, as are the facts and allegations
contained therein. As such, the Court issued an order consolidating
the cases sua sponte. The Court, thus, recites the common facts of
this case as the Plaintiffs allege them across the consolidated
cases, specifying the facts on a party-specific basis where
necessary.
The consolidated cases stem from a purported business operation
that allegedly used false promises, deceptive advertisement, and
pressured sales tactics to sell customers overpriced and defective
residential solar panel systems. The Plaintiffs are Gregory and
Rebekah Bowe (Case No. 2:22-cv-04266, "Bowe"); Deanna and
Christopher Evans (Case No. 1:22-cv-00723, "Evans"); Stephen and
Mallori Salazar (Case No. 2:22-cv-04314, "Salazar"); John and Mary
Riley (Case No. 2:22-cv-04315, "Riley"); Bree-Ann and Brian Stenger
(Case No. 1:22-cv-00721, "Stenger"); Thomas and Amanda Chamberlin
(Case No. 2:22-cv-04318, "Chamberlin"); and Nathan and Tiffany
Genton (Case No. 2:22-cv-04310, "Genton").
The Bowe, Evans, and Salazar Plaintiffs sued Defendants Cross River
Bank ("Cross River"), Sunlight Financial, LLC ("Sunlight"), Jayson
Waller ("Waller"), and Trivest Partners, L.P. ("Trivest"). The
Riley, Stenger, Chamberlin, and Genton Plaintiffs also sued
Sunlight, Waller, and Trivest, but sued Defendant Technology Credit
Union ("TCU") rather than Cross River.
To provide context on the Defendants, Cross River and TCU are
credit unions who, along with Sunlight, provided loans to the
Plaintiffs for the purchase of the solar panel system from the now
defunct solar panel company, Power Home Solar, LLC (d/b/a Pink
Energy) ("Pink Energy"). Trivest is a private equity company that
invested in Pink Energy. Waller was a corporate officer of Pink
Energy. The Plaintiffs allege Trivest and/or Waller worked with
Pink Energy to solicit, sell, install, and maintain solar power
energy systems designed for residential use. The Plaintiffs also
allege Cross River and TCU acted by and through Sunlight to provide
financing to the Plaintiffs in the purchase of the Pink Energy
solar panel system.
In 2018, Trivest, through Waller, purchased a 25% ownership
interest in Pink Energy and became involved in the day-to-day
operation of Pink Energy. On Oct. 7, 2022, Pink Energy filed for
bankruptcy and, as such, has not been added as a party to these
lawsuits. The Plaintiffs, however, refer to the Defendants
collectively as the "Pink Energy Group" through their complaints.
Before turning to the procedural history in these consolidated
cases, the Court considers the procedural history of a related case
that began close in time. On Nov. 13, 2022, the plaintiffs in Hall,
et al. v. Trivest Partners L.P., et al. (Case No. 4:22-cv-12743)
("Hall") filed a nationwide class action lawsuit in the U.S.
District Court for the Eastern District of Michigan. The Hall
complaint arose from the same purported business operation that
allegedly used false promises, deceptive advertisement, and
pressured sales tactics to sell customers Pink Energy's overpriced
and defective home solar panel systems.
The three defendants in Hall are Trivest, Waller, and TGIF Power
Home Investor, LLC (later known as Pink Energy). The plaintiffs in
Hall allege three causes of action: Racketeer Influenced and
Corrupt Organizations Act ("RICO"), in violation of 18 U.S.C.
Sections 1962(a) and (c); Conspiracy to Violate RICO, in violation
of 18 U.S.C. Section 1962(d); and violations of the Michigan
Consumer Protections Act.
The putative class in Hall, which the court has not yet certified,
includes: "[a]ll persons in the United States who purchased a home
solar system from Power Home Solar, LLC (including d/b/a/ Pink
Energy) at any time since January 1, 2018."
The Plaintiffs filed their complaints in these consolidated cases
on Dec. 7, 2022, approximately one month after the complaint in
Hall was filed. The Plaintiffs' complaints bring forth 13 claims
against the Defendants, which include Breach of Contract (against
all Defendants), Fraudulent Misrepresentation (against all
Defendants), and Negligent Misrepresentation (against all
Defendants).
After the Plaintiffs filed their complaints, Trivest and Waller
filed Motions to Dismiss in all cases; Sunlight filed Motions to
Compel Arbitration and Dismiss in all cases; Cross River filed
Motions to Join Sunlight's Motions to Compel Arbitration and
Dismiss in Bowe, Evans, and Salazar; TCU filed Motions to Join
Sunlight's Motions to Compel Arbitration and Dismiss in Riley,
Stenger, Chamberlin, and Genton; and Plaintiffs filed Motions for
Discovery in all cases requesting to conduct limited discovery on
whether the arbitration provision at issue is enforceable.
The Plaintiffs filed responses in opposition to the various motions
to dismiss and motions to compel arbitration. The Plaintiffs,
however, did not oppose Cross River's or TCU's motions to join
Sunlight's motions. The Defendants filed responses in opposition to
the Plaintiffs' motions for limited discovery. The Court notes,
however, that on Nov. 3, 2023, Sunlight filed notice with the Court
that Sunlight Financial Holdings, Inc., and its debtor affiliates,
including Sunlight, commenced bankruptcy proceedings on Oct. 30,
2023.
The Court first considers Trivest's motions to dismiss, which argue
that Trivest should be dismissed from this consolidated lawsuit
because the first to file rule applies, the Court lacks personal
jurisdiction over Trivest, and the Plaintiffs fail to state a claim
against Trivest.
Trivest argues Hall was filed before these consolidated cases were
filed and the resolution of Hall could resolve these consolidated
cases. The Plaintiffs respond that the first-to-file rule is
inapplicable here because Hall concerns substantially different
claims and parties from these consolidated cases.
First, the Court finds Hall predates these consolidated cases.
Second, when evaluating the similarity of the parties involved, the
Court finds the parties involved do not substantially overlap.
While the definition of the putative class in Hall is broad enough
to include the Plaintiffs and Hall defendants include Trivest and
Waller, Hall does not include Defendants Sunlight, Cross River, and
TCU, who are parties in these consolidated cases. Third, when
evaluating the similarity of the issues or claims at stake, the
Court finds the cases do not substantially overlap.
While Hall concerns the same scheme to defraud customers in
purchasing faulty residential solar panel systems from Pink Energy,
none of the 13 causes of action in these consolidated cases is pled
in Hall, Judge Marbley points out. Rather, Hall alleges RICO
violations and violations of the Michigan Consumer Sales Practices
Act. Since the actions do not raise the same claims arising under
the same laws, this factor weighs against application of the
first-to-file rule.
Overall, when evaluating the three factors of the first-to-file
rule, the Court does not find it appropriate to dismiss or stay
these consolidated cases based on Hall. Accordingly, Trivest's
motions to dismiss based on the first-to-file rule are denied.
While the Court refrains from a sweeping generalization that a
minority share and day-to-day operational involvement can never be
enough to establish specific jurisdiction, the Court finds the
Plaintiffs' allegations insufficient. For this reason, Trivest's
motions to dismiss are granted.
Despite finding the Court lacks personal jurisdiction over Trivest,
Judge Marbley analyzed Trivest's motion to dismiss for failure to
state a claim. The Court finds that the Plaintiffs fail to state a
valid claim against Trivest.
The Court next turns to Waller's motions to dismiss, which argue
Waller should be dismissed from this lawsuit because the Plaintiffs
fail to establish his personal liability and fail to adequately
plead their fraud and negligence-based claims against him.
Mr. Waller argues that he should be dismissed from this lawsuit
because the Plaintiffs never allege that he was directly involved
in the events that caused their injuries and, even if they had, he
is not personally liable for Pink Energy's actions because he was a
mere corporate officer. The Plaintiffs respond that they adequately
pled Waller's liability because they allege he was intimately
involved in the day-to-day operations of Pink Energy, designed and
taught the sales tactics that were used to defraud the Plaintiffs,
and had control over Pink Energy.
The Court finds the Plaintiffs fail to make any allegations which,
if proven, would render Waller personally liable for their alleged
injuries. Most of the Plaintiffs' allegations are directed at the
"Pink Energy Group" rather than Waller specifically. The specific
allegations against Waller are limited, among other things, to the
following: Waller was "intimately involved in designing,
implementing, and teaching the fraudulent sales practices employed
by Pink Energy's Agents/Employees."
Judge Marbley finds these allegations against Waller pertain to his
level of influence over Pink Energy's day-to-day operations and
tactics. None of them suggests that Waller himself interacted with
the Plaintiffs, or even that he directed the sales personnel, who
visited the Plaintiffs at their homes to utilize the hard-sell
tactics that he allegedly developed. Further, the Plaintiffs make
no allegations indicating Waller exercised complete or
near-complete dominion over Pink Energy to the extent that Pink
Energy lacked any effective autonomy.
In short, Judge Marbley says, there are no allegations that Pink
Energy is indistinguishable from Waller himself. As such, the Court
finds the Plaintiffs fail to plead Waller's personal liability. For
that reason, Waller's motions to dismiss are granted.
The Court also finds that the Plaintiffs fail to state valid
fraud-based claims against Waller, and fail to state a valid claim
for negligent retention/hiring and training. The Court adds that
the economic loss rule bars the Plaintiffs' negligence claim
against Waller.
On Oct. 30, 2023, Sunlight initiated bankruptcy proceedings. Since
Sunlight is a defendant in these consolidated cases, there is no
question that these lawsuits are "against the debtor." The
automatic stay applies to Sunlight and, therefore, the Court finds
it cannot issue an opinion on Sunlight's Motions to Compel
Arbitration and Dismiss at this time.
The Court finds Defendant Sunlight is not a required party since a
resolution of the claims against Sunlight would not resolve the
Plaintiffs' claims against the other Defendants. Put differently,
Judge Marbley explains each of the claims for relief sought by the
Plaintiffs could be effectively enforced against the other
Defendants without the need for Sunlight.
Therefore, the Court finds it promotes judicial efficiency to sever
all claims against Defendant Sunlight from these consolidated cases
and stay Sunlight's Motions to Compel Arbitration and Dismiss.
The Court next turns to Cross River's and TCU's Motions for Joinder
in Sunlight's Motions to Compel Arbitration and Dismiss. Since
Cross River and TCU are parties to the same Loan Agreements between
the Plaintiffs and Sunlight, the Court grants Cross River's and
TCU's Motions for Joinder in Sunlight's Motions to Compel
Arbitration and Dismiss.
Accordingly, the Court addresses the motions to compel arbitration
and dismiss as if Cross River and TCU were standing in Sunlight's
shoes.
In the motions to compel arbitration and dismiss, the parties
debate the enforceability of the Arbitration Provision contained in
the Loan Agreements that the Plaintiffs signed. Cross River/TCU
argue that the Plaintiffs entered into a valid arbitration
agreement and their claims against them are subject to arbitration.
The Plaintiffs respond that the Arbitration Provision in the Loan
Agreement should be voided because it was borne of fraud and is
unconscionable.
While the Plaintiffs provided an affidavit from counsel stating
they need depositions of sales personnel and corporate
representatives to gather information about Pink Energy's sales
practices and training, the Court finds the Plaintiffs have not
shown why they need such discovery to justify its position. In
fact, the Plaintiffs responded to Sunlight's motions before filing
their motions for discovery, and they detail in their responses in
opposition to Sunlight's motions how the sales in these cases were
conducted. Accordingly, the Plaintiffs' Motions for Discovery is
denied.
Judge Marbley notes that the Arbitration Provision specifically
states that any disputes about the validity, enforceability,
coverage, or scope of the Arbitration Provision are for the court
and not the arbitrator to decide, while disputes about the validity
or enforceability of the Note (i.e. Loan Agreement) is for the
arbitrator and not the court to decide. Accordingly, the Court
finds it has the authority to resolve the parties' disputes
surrounding the Arbitration Provision itself, but not the Loan
Agreement as a whole.
Judge Marbley finds that all of the Plaintiffs' allegations against
Cross River and TCU meet the definition of "claim" within the
Arbitration Provision since they all relate to the marketing, sale,
purchase, and installation of their solar panel system. Therefore,
the Court finds all of the Plaintiffs' claims against Cross River
and TCU are subject to arbitration.
The Plaintiffs argue the Arbitration Provision is procedurally
unconscionable because they were rushed to sign it without being
told about it. Judge Marbley points out that there is no evidence
before the Court, though, that they were too young, lacked
education, intelligence, and/or business acumen and experience,
and/or had such unequal bargaining power as to render the
Arbitration Provision procedurally unconscionable. Rather, the
evidence shows the Plaintiffs voluntarily signed the Loan Agreement
immediately below and above acknowledgments stating that they
agreed to the Arbitration Provision limiting their ability to
litigate any future dispute.
While the Plaintiffs may have felt they were rushed to sign the
agreements because they did not want to miss out on the sales
promotions, there is no evidence before the Court that they were
not given an opportunity to read the contracts and provisions
therein. Accordingly, the Court finds the Arbitration Provision is
not procedurally or substantively unconscionable.
Having found that the Plaintiffs' claims are subject to arbitration
and the Arbitration Provision is not unconscionable, the Court last
determines whether it should dismiss the claims against Cross River
and TCU as requested or enter a stay of the action. When all claims
fall under the scope of an arbitration agreement, Judge Marbley
explains that a court is to direct the parties to proceed to
arbitration and dismiss the claims, without prejudice and subject
to reinstatement, if necessary, so no further action is required of
the court, except to enter judgment.
Since the Court found all claims against Cross River and TCU fall
under the scope of the arbitration provision, the Court finds it
appropriate to dismiss, rather than stay, the Plaintiffs' claims
against Cross River and TCU. Accordingly, Cross River's and TCU's
Motions to Compel Arbitration and Dismiss are granted.
For the reasons set forth in this Opinion & Order, the Court grants
Defendant Trivest Partners, L.P.'s Motions to Dismiss; Defendant
Jayson Waller's Motions to Dismiss; and Defendant Cross River
Bank's and Defendant Technology Credit Union's Motions for Joinder
in Defendant Sunlight Financial, LLC's Motions to Compel
Arbitration and Dismiss. Additionally, the Court severs all claims
against Sunlight Financial, LLC from this action.
As a result, the Court grants in part Defendant Sunlight Financial,
LLC's Motions to Compel Arbitration and Dismiss, such that the
motions are granted as to Defendant Cross River Bank and Defendant
Technology Credit Union but stayed Defendant Sunlight Financial,
LLC's Motions to Compel Arbitration and Dismiss as to Defendant
Sunlight. Finally, the Court denies the Plaintiffs' Motions for
Discovery.
Based on the Court's rulings, the claims against Defendants Trivest
Partners, L.P., and Jayson Waller are dismissed in all cases. The
claims against Defendant Cross River Bank are dismissed in Bowe,
Evans, and Salazar, and the claims against Defendant Technology
Credit Union are dismissed in Riley, Stenger, Chamberlin, and
Genton.
The Plaintiffs are ordered to submit their claims against Defendant
Cross River Bank and Defendant Technology Credit Union to
arbitration according to the terms of the Loan Agreements.
A full-text copy of the Court's Opinion & Order dated March 11,
2024, is available at https://tinyurl.com/kx83pf32 from
PacerMonitor.com.
TECHNOLOGY CREDIT: Trivest's Bids to Dismiss in Stenger Suit OK'd
-----------------------------------------------------------------
Chief Judge Algenon L. Marbley of the U.S. District Court for the
Southern District of Ohio, Eastern Division, grants Defendant
Trivest Partners, L.P.'s motions to dismiss in the lawsuit titled
Stenger, et al. v. Technology Credit Union, et al., Case No.
1:22-cv-00721-ALM-EPD.
The case Bowe, et al. v. Cross River Bank, et al., Case No.
2:22-cv-04266, is consolidated with Evans, et al. v. Cross River
Bank, et al., Case No. 1:22-cv-00723; Salazar, et al. v. Cross
River Bank, et al., Case No. 2:22-cv-04314; Riley, et al. v.
Technology Credit Union, et al., Case No. 2:22-cv-04315; Stenger,
et al. v. Technology Credit Union, et al., Case No. 1:22-cv-00721;
Chamberlin, et al. v. Technology Credit Union, et al., Case No.
2:22-cv-04318; and Genton, et al. v. Technology Credit Union, et
al., Case No. 2:22-cv-04310.
These matters are before the Court: Defendant Trivest Partners,
L.P.'s Motion to Dismiss; Defendant Jayson Waller's Motion to
Dismiss; Defendant Sunlight Financial, LLC's Motion to Compel
Arbitration and Dismiss; Defendant Cross River Bank's Motion for
Joinder in Defendant Sunlight, Financial LLC's Motion to Compel
Arbitration and Dismiss Complaint; and Plaintiffs' Motion for
Discovery. These motions and matters from the other cases are also
before the Court.
For all practical purposes, Judge Marbley notes that the motions
are nearly identical. The Court, thus, considers each set of
motions as consolidated motions and, as applicable, will reference
the motions outlined in Bowe, et al. v. Cross River Bank, et al.,
Case No. 2:22-cv-04266. Since Technology Credit Union is not a
party in Bowe, however, the Court will, as applicable, reference
Technology Credit Union's motions outlined in Riley, et al. v.
Technology Credit Union, et al., Case No. 2:22-cv-04315.
For the reasons set in this Opinion & Order, the Court grants
Defendant Trivest Partners, L.P.'s Motions to Dismiss; Defendant
Jayson Waller's Motions to Dismiss; and Defendant Cross River
Bank's and Defendant Technology Credit Union's Motions for Joinder
in Defendant Sunlight Financial, LLC's Motions to Compel
Arbitration and Dismiss.
Additionally, the Court severs all claims against Sunlight
Financial, LLC, from this action. As a result, the Court grants in
part Defendant Sunlight Financial, LLC's Motions to Compel
Arbitration and Dismiss, such that the motions are granted as to
Defendant Cross River Bank and Defendant Technology Credit Union
but stayed Defendant Sunlight Financial, LLC's Motions to Compel
Arbitration and Dismiss as to Defendant Sunlight. Finally, the
Court denies the Plaintiffs' Motions for Discovery.
As the Court is granting Cross River's and TCU's motions to join
Sunlight's motions to compel arbitration, the Court treats
Sunlight's motions to compel arbitration as being brought by each
of the three Defendants. Hence, this Opinion & Order reflects that
the motions to compel arbitration are partially granted and
partially stayed.
The complaints filed by the Plaintiffs in each of these seven cases
are substantially similar, as are the facts and allegations
contained therein. As such, the Court issued an order consolidating
the cases sua sponte. The Court, thus, recites the common facts of
this case as the Plaintiffs allege them across the consolidated
cases, specifying the facts on a party-specific basis where
necessary.
The consolidated cases stem from a purported business operation
that allegedly used false promises, deceptive advertisement, and
pressured sales tactics to sell customers overpriced and defective
residential solar panel systems. The Plaintiffs are Gregory and
Rebekah Bowe (Case No. 2:22-cv-04266, "Bowe"); Deanna and
Christopher Evans (Case No. 1:22-cv-00723, "Evans"); Stephen and
Mallori Salazar (Case No. 2:22-cv-04314, "Salazar"); John and Mary
Riley (Case No. 2:22-cv-04315, "Riley"); Bree-Ann and Brian Stenger
(Case No. 1:22-cv-00721, "Stenger"); Thomas and Amanda Chamberlin
(Case No. 2:22-cv-04318, "Chamberlin"); and Nathan and Tiffany
Genton (Case No. 2:22-cv-04310, "Genton").
The Bowe, Evans, and Salazar Plaintiffs sued Defendants Cross River
Bank, Sunlight Financial, LLC, Jayson Waller, and Trivest Partners,
L.P. The Riley, Stenger, Chamberlin, and Genton Plaintiffs also
sued Sunlight, Waller, and Trivest, but sued Defendant Technology
Credit Union ("TCU") rather than Cross River.
To provide context on the Defendants, Cross River and TCU are
credit unions who, along with Sunlight, provided loans to the
Plaintiffs for the purchase of the solar panel system from the now
defunct solar panel company, Power Home Solar, LLC (d/b/a Pink
Energy) ("Pink Energy"). Trivest is a private equity company that
invested in Pink Energy. Waller was a corporate officer of Pink
Energy. The Plaintiffs allege Trivest and/or Waller worked with
Pink Energy to solicit, sell, install, and maintain solar power
energy systems designed for residential use. The Plaintiffs also
allege Cross River and TCU acted by and through Sunlight to provide
financing to the Plaintiffs in the purchase of the Pink Energy
solar panel system.
In 2018, Trivest, through Waller, purchased a 25% ownership
interest in Pink Energy and became involved in the day-to-day
operation of Pink Energy. On Oct. 7, 2022, Pink Energy filed for
bankruptcy and, as such, has not been added as a party to these
lawsuits. The Plaintiffs, however, refer to the Defendants
collectively as the "Pink Energy Group" through their complaints.
Before turning to the procedural history in these consolidated
cases, the Court considers the procedural history of a related case
that began close in time. On Nov. 13, 2022, the plaintiffs in Hall,
et al. v. Trivest Partners L.P., et al. (Case No. 4:22-cv-12743)
("Hall") filed a nationwide class action lawsuit in the U.S.
District Court for the Eastern District of Michigan. The Hall
complaint arose from the same purported business operation that
allegedly used false promises, deceptive advertisement, and
pressured sales tactics to sell customers Pink Energy's overpriced
and defective home solar panel systems.
The three defendants in Hall are Trivest, Waller, and TGIF Power
Home Investor, LLC (later known as Pink Energy). The plaintiffs in
Hall allege three causes of action: Racketeer Influenced and
Corrupt Organizations Act ("RICO"), in violation of 18 U.S.C.
Sections 1962(a) and (c); Conspiracy to Violate RICO, in violation
of 18 U.S.C. Section 1962(d); and violations of the Michigan
Consumer Protections Act.
The putative class in Hall, which the court has not yet certified,
includes "all persons in the United States who purchased a home
solar system from Power Home Solar, LLC (including d/b/a/Pink
Energy) at any time since January 1, 2018."
The Plaintiffs filed their complaints in these consolidated cases
on Dec. 7, 2022, approximately one month after the complaint in
Hall was filed. The Plaintiffs' complaints bring forth 13 claims
against the Defendants, which include Breach of Contract (against
all Defendants), Fraudulent Misrepresentation (against all
Defendants), and Negligent Misrepresentation (against all
Defendants).
After the Plaintiffs filed their complaints, Trivest and Waller
filed Motions to Dismiss in all cases; Sunlight filed Motions to
Compel Arbitration and Dismiss in all cases; Cross River filed
Motions to Join Sunlight's Motions to Compel Arbitration and
Dismiss in Bowe, Evans, and Salazar; TCU filed Motions to Join
Sunlight's Motions to Compel Arbitration and Dismiss in Riley,
Stenger, Chamberlin, and Genton; and Plaintiffs filed Motions for
Discovery in all cases requesting to conduct limited discovery on
whether the arbitration provision at issue is enforceable.
The Plaintiffs filed responses in opposition to the various motions
to dismiss and motions to compel arbitration. The Plaintiffs,
however, did not oppose Cross River's or TCU's motions to join
Sunlight's motions. The Defendants filed responses in opposition to
the Plaintiffs' motions for limited discovery. The Court notes,
however, that on Nov. 3, 2023, Sunlight filed notice with the Court
that Sunlight Financial Holdings, Inc., and its debtor affiliates,
including Sunlight, commenced bankruptcy proceedings on Oct. 30,
2023.
The Court first considers Trivest's motions to dismiss, which argue
that Trivest should be dismissed from this consolidated lawsuit
because the first to file rule applies, the Court lacks personal
jurisdiction over Trivest, and the Plaintiffs fail to state a claim
against Trivest.
Trivest argues Hall was filed before these consolidated cases were
filed and the resolution of Hall could resolve these consolidated
cases. The Plaintiffs respond that the first-to-file rule is
inapplicable here because Hall concerns substantially different
claims and parties from these consolidated cases.
First, the Court finds Hall predates these consolidated cases.
Second, when evaluating the similarity of the parties involved, the
Court finds the parties involved do not substantially overlap.
While the definition of the putative class in Hall is broad enough
to include the Plaintiffs and Hall defendants include Trivest and
Waller, Hall does not include Defendants Sunlight, Cross River, and
TCU, who are parties in these consolidated cases. Third, when
evaluating the similarity of the issues or claims at stake, the
Court finds the cases do not substantially overlap.
While Hall concerns the same scheme to defraud customers in
purchasing faulty residential solar panel systems from Pink Energy,
none of the 13 causes of action in these consolidated cases is pled
in Hall, Judge Marbley points out. Rather, Hall alleges RICO
violations and violations of the Michigan Consumer Sales Practices
Act. Since the actions do not raise the same claims arising under
the same laws, this factor weighs against application of the
first-to-file rule.
Overall, when evaluating the three factors of the first-to-file
rule, the Court does not find it appropriate to dismiss or stay
these consolidated cases based on Hall. Accordingly, Trivest's
motions to dismiss based on the first-to-file rule are denied.
While the Court refrains from a sweeping generalization that a
minority share and day-to-day operational involvement can never be
enough to establish specific jurisdiction, the Court finds the
Plaintiffs' allegations insufficient. For this reason, Trivest's
motions to dismiss are granted.
Despite finding the Court lacks personal jurisdiction over Trivest,
Judge Marbley analyzed Trivest's motion to dismiss for failure to
state a claim. The Court finds that the Plaintiffs fail to state a
valid claim against Trivest.
The Court next turns to Waller's motions to dismiss, which argue
Waller should be dismissed from this lawsuit because the Plaintiffs
fail to establish his personal liability and fail to adequately
plead their fraud and negligence-based claims against him.
Mr. Waller argues that he should be dismissed from this lawsuit
because the Plaintiffs never allege that he was directly involved
in the events that caused their injuries and, even if they had, he
is not personally liable for Pink Energy's actions because he was a
mere corporate officer. The Plaintiffs respond that they adequately
pled Waller's liability because they allege he was intimately
involved in the day-to-day operations of Pink Energy, designed and
taught the sales tactics that were used to defraud the Plaintiffs,
and had control over Pink Energy.
The Court finds the Plaintiffs fail to make any allegations which,
if proven, would render Waller personally liable for their alleged
injuries. Most of the Plaintiffs' allegations are directed at the
"Pink Energy Group" rather than Waller specifically. The specific
allegations against Waller are limited, among other things, to the
following: Waller was "intimately involved in designing,
implementing, and teaching the fraudulent sales practices employed
by Pink Energy's Agents/Employees."
Judge Marbley finds these allegations against Waller pertain to his
level of influence over Pink Energy's day-to-day operations and
tactics. None of them suggests that Waller himself interacted with
the Plaintiffs, or even that he directed the sales personnel, who
visited the Plaintiffs at their homes to utilize the hard-sell
tactics that he allegedly developed. Further, the Plaintiffs make
no allegations indicating Waller exercised complete or
near-complete dominion over Pink Energy to the extent that Pink
Energy lacked any effective autonomy.
In short, Judge Marbley says, there are no allegations that Pink
Energy is indistinguishable from Waller himself. As such, the Court
finds the Plaintiffs fail to plead Waller's personal liability. For
that reason, Waller's motions to dismiss are granted.
The Court also finds that the Plaintiffs fail to state valid
fraud-based claims against Waller, and fail to state a valid claim
for negligent retention/hiring and training. The Court adds that
the economic loss rule bars the Plaintiffs' negligence claim
against Waller.
On Oct. 30, 2023, Sunlight initiated bankruptcy proceedings. Since
Sunlight is a defendant in these consolidated cases, there is no
question that these lawsuits are "against the debtor." The
automatic stay applies to Sunlight and, therefore, the Court finds
it cannot issue an opinion on Sunlight's Motions to Compel
Arbitration and Dismiss at this time.
The Court finds Defendant Sunlight is not a required party since a
resolution of the claims against Sunlight would not resolve the
Plaintiffs' claims against the other Defendants. Put differently,
Judge Marbley explains each of the claims for relief sought by the
Plaintiffs could be effectively enforced against the other
Defendants without the need for Sunlight.
Therefore, the Court finds it promotes judicial efficiency to sever
all claims against Defendant Sunlight from these consolidated cases
and stay Sunlight's Motions to Compel Arbitration and Dismiss.
The Court next turns to Cross River's and TCU's Motions for Joinder
in Sunlight's Motions to Compel Arbitration and Dismiss. Since
Cross River and TCU are parties to the same Loan Agreements between
the Plaintiffs and Sunlight, the Court grants Cross River's and
TCU's Motions for Joinder in Sunlight's Motions to Compel
Arbitration and Dismiss.
Accordingly, the Court addresses the motions to compel arbitration
and dismiss as if Cross River and TCU were standing in Sunlight's
shoes.
In the motions to compel arbitration and dismiss, the parties
debate the enforceability of the Arbitration Provision contained in
the Loan Agreements that the Plaintiffs signed. Cross River/TCU
argue that the Plaintiffs entered into a valid arbitration
agreement and their claims against them are subject to arbitration.
The Plaintiffs respond that the Arbitration Provision in the Loan
Agreement should be voided because it was borne of fraud and is
unconscionable.
While the Plaintiffs provided an affidavit from counsel stating
they need depositions of sales personnel and corporate
representatives to gather information about Pink Energy's sales
practices and training, the Court finds the Plaintiffs have not
shown why they need such discovery to justify its position. In
fact, the Plaintiffs responded to Sunlight's motions before filing
their motions for discovery, and they detail in their responses in
opposition to Sunlight's motions how the sales in these cases were
conducted. Accordingly, the Plaintiffs' Motions for Discovery is
denied.
Judge Marbley notes that the Arbitration Provision specifically
states that any disputes about the validity, enforceability,
coverage, or scope of the Arbitration Provision are for the court
and not the arbitrator to decide, while disputes about the validity
or enforceability of the Note (i.e. Loan Agreement) is for the
arbitrator and not the court to decide. Accordingly, the Court
finds it has the authority to resolve the parties' disputes
surrounding the Arbitration Provision itself, but not the Loan
Agreement as a whole.
Judge Marbley finds that all of the Plaintiffs' allegations against
Cross River and TCU meet the definition of "claim" within the
Arbitration Provision since they all relate to the marketing, sale,
purchase, and installation of their solar panel system. Therefore,
the Court finds all of the Plaintiffs' claims against Cross River
and TCU are subject to arbitration.
The Plaintiffs argue the Arbitration Provision is procedurally
unconscionable because they were rushed to sign it without being
told about it. Judge Marbley points out that there is no evidence
before the Court, though, that they were too young, lacked
education, intelligence, and/or business acumen and experience,
and/or had such unequal bargaining power as to render the
Arbitration Provision procedurally unconscionable. Rather, the
evidence shows the Plaintiffs voluntarily signed the Loan Agreement
immediately below and above acknowledgments stating that they
agreed to the Arbitration Provision limiting their ability to
litigate any future dispute.
While the Plaintiffs may have felt they were rushed to sign the
agreements because they did not want to miss out on the sales
promotions, there is no evidence before the Court that they were
not given an opportunity to read the contracts and provisions
therein. Accordingly, the Court finds the Arbitration Provision is
not procedurally or substantively unconscionable.
Having found that the Plaintiffs' claims are subject to arbitration
and the Arbitration Provision is not unconscionable, the Court last
determines whether it should dismiss the claims against Cross River
and TCU as requested or enter a stay of the action. When all claims
fall under the scope of an arbitration agreement, Judge Marbley
explains that a court is to direct the parties to proceed to
arbitration and dismiss the claims, without prejudice and subject
to reinstatement, if necessary, so no further action is required of
the court, except to enter judgment.
Since the Court found all claims against Cross River and TCU fall
under the scope of the arbitration provision, the Court finds it
appropriate to dismiss, rather than stay, the Plaintiffs' claims
against Cross River and TCU. Accordingly, Cross River's and TCU's
Motions to Compel Arbitration and Dismiss are granted.
For the reasons set forth in this Opinion & Order, the Court grants
Defendant Trivest Partners, L.P.'s Motions to Dismiss; Defendant
Jayson Waller's Motions to Dismiss; and Defendant Cross River
Bank's and Defendant Technology Credit Union's Motions for Joinder
in Defendant Sunlight Financial, LLC's Motions to Compel
Arbitration and Dismiss. Additionally, the Court severs all claims
against Sunlight Financial, LLC from this action.
As a result, the Court grants in part Defendant Sunlight Financial,
LLC's Motions to Compel Arbitration and Dismiss, such that the
motions are granted as to Defendant Cross River Bank and Defendant
Technology Credit Union but stayed Defendant Sunlight Financial,
LLC's Motions to Compel Arbitration and Dismiss as to Defendant
Sunlight. Finally, the Court denies the Plaintiffs' Motions for
Discovery.
Based on the Court's rulings, the claims against Defendants Trivest
Partners, L.P., and Jayson Waller are dismissed in all cases. The
claims against Defendant Cross River Bank are dismissed in Bowe,
Evans, and Salazar, and the claims against Defendant Technology
Credit Union are dismissed in Riley, Stenger, Chamberlin, and
Genton.
The Plaintiffs are ordered to submit their claims against Defendant
Cross River Bank and Defendant Technology Credit Union to
arbitration according to the terms of the Loan Agreements.
A full-text copy of the Court's Opinion & Order dated March 11,
2024, is available at https://tinyurl.com/y4tdrvwb from
PacerMonitor.com.
TEXAS: Court Denies Bid for Reconsideration in Thunderhorse Suit
----------------------------------------------------------------
Judge Marcia A. Crone of the U.S. District Court for the Eastern
District of Texas denies the Plaintiff's motion for reconsideration
in the lawsuit titled IRON THUNDERHORSE, Plaintiff v. CHAPLAIN GUY,
Defendant, Case No. 9:20-cv-00154-MAC-CLS (E.D. Tex.).
Plaintiff Iron Thunderhorse, an inmate confined at the Polunsky
Unit, proceeding pro se, brought this lawsuit pursuant to 42 U.S.C.
Section 1983 against Chaplain Guy. The Court referred this matter
to the Honorable Christine L. Stetson, United States Magistrate
Judge, at Beaumont, Texas, for consideration pursuant to applicable
laws and orders of this Court.
The Plaintiff has filed a motion for reconsideration. He seeks
relief from the Magistrate Judge's order denying his motion for
leave to file an amended and supplemental complaint. He contends
that the order was clearly erroneous and contrary to law.
The Magistrate Judge denied the Plaintiff's motion reciting that
this lawsuit was the result of his second amended complaint filed
in the Southern District, he sought to add new parties and new
claims after almost three years, as well as make this case a class
action.
Further, the Magistrate Judge observed that allowing the Plaintiff
to again amend his complaint would cause undue delay in this
action.
After careful consideration, the Court is of the opinion that the
Plaintiff's objections to the denial of his motion lack merit and
should be overruled. The Court finds the order of the Magistrate
Judge neither clearly erroneous nor contrary to law. As recited by
the Magistrate Judge, the Plaintiff was dilatory in filing his
motion and allowing his motion would cause undue delay in this
action.
To the extent the Plaintiff claims he did not receive the order in
a timely fashion, Judge Crone says a review of the docket reveals
the Plaintiff did not keep the Court informed of his current
address by updating his address during his transfers to other units
of assignment.
Further, the Plaintiff's motion for reconsideration of the order is
untimely as it was filed after the judgment was entered and does
not seek relief from the judgment. Therefore, Judge Crone denies
the motion for reconsideration.
For the reasons set forth here, Judge Crone holds that the
Plaintiff's motion lacks merit and should be denied.
A full-text copy of the Court's Memorandum Opinion and Order dated
March 11, 2024, is available at https://tinyurl.com/7u6p53tf from
PacerMonitor.com.
TJ MAXX: Soriano Sues Over Unfair Employment Practices
------------------------------------------------------
FAITH SORIANO, on behalf of herself and all others similarly
situated, Plaintiff v. T.J. MAXX OF CA, LLC, a Virginia Limited
Liability Company; THE TJX COMPANIES, INC., a Virginia Corporation;
and DOES 1 through 10, inclusive, Defendants, Case No.
2:24-cv-02077 (C.D. Cal., March 13, 2024) alleges that the
Defendants violated the Fair Credit Reporting Act, the California
Labor Code, and the Unfair Competition Law.
According to the complaint, the Defendants did not maintain a
compliant rest period policy applicable to Plaintiff and other
California Class Members under the California Labor Code. The
Defendants did not relieve employees of all duties during rest
periods and required them to continue work throughout their shifts,
says the suit.
Headquartered in Framingham, MA, T.J. MAXX OF CA, LLC is a Virginia
limited liability company that owns and operates department stores
throughout the United States and California. [BN]
The Plaintiff is represented by:
Isam C. Khoury, Esq.
Michael D. Singer, Esq.
Jeff Geraci, Esq.
COHELAN KHOURY & SINGER
605 C Street, Suite 200
San Diego, CA 92101
Telephone: (619) 595-3001
Facsimile: (619) 595-3000
E-mail: ikhoury@ckslaw.com
msinger@ckslaw.com
jgeraci@ckslaw.com
- and -
Sahag Majarian, Esq.
Garen Majarian, Esq.
MAJARIAN LAW GROUP, APC
18250 Ventura Blvd.
Tarzana, CA 91356
Telephone: (818) 609-0807
Facsimile: (818) 609-0892
E-mail: sahagii@aol.com
garen@majarianlawgroup.com
TRICIDA INC: Court Narrows Claims in Pardi Securities Class Suit
----------------------------------------------------------------
Judge Haywood S. Gilliam, Jr., of the U.S. District Court for the
Northern District of California grants in part and denies in part
the Defendants' motion to dismiss the lawsuit styled MICHAEL PARDI,
et al., Plaintiffs v. TRICIDA, INC., et al., Defendants, Case No.
4:21-cv-00076-HSG (N.D. Cal.).
The putative securities class action was filed against Defendants
Tricida, Inc., and Gerrit Klaerner. On June 1, 2021, Lead Plaintiff
Jeffrey Fiore filed an amended complaint alleging violations of
Sections 10(b) and 20(a) of the Securities Exchange Act of 1934 and
Rule 10b-5 promulgated thereunder.
The Court dismissed Fiore's amended complaint with leave to amend
on July 29, 2022. Fiore then filed a second amended complaint
("SAC"), reasserting the same claims. Pending before the Court is
Klaerner's motion to dismiss the SAC, for which the briefing is
complete. The Court finds the matter appropriate for disposition
without oral argument, and the matter is deemed submitted.
Tricida filed a voluntary petition for relief under Chapter 11 of
the Bankruptcy Code, and Fiore voluntarily dismissed Tricida from
the case in March 2023. Accordingly, the only remaining Defendant
in this case is Klaerner. The Court refers to Klaerner and Tricida
collectively as "Defendants" since both are alleged to have made
statements challenged in the operative complaint, notwithstanding
Tricida's later dismissal.
Tricida is a clinical-stage biopharmaceutical company incorporated
in Delaware with principal executive offices in South San
Francisco, California. Klaerner was Tricida's Chief Executive
Officer and President at the time the SAC was filed. Fiore alleges
he was damaged by the Defendants' misrepresentations and omissions
because he purchased Tricida common stock at artificially inflated
prices.
In May 2018, Tricida completed its Phase 3 clinical trial for
veverimer, a drug intended to slow the progression of chronic
kidney disease ("CKD") through treatment of metabolic acidosis. In
a June 5, 2018 press release, Tricida announced that the Phase 3
study for veverimer was conducted at 47 sites in the United States
and Europe and that the study met both its primary and secondary
endpoints in a statistically significant manner.
Following the trial results, Tricida held its initial public
offering ("IPO") on June 28, 2018, and began trading that same day
on the Nasdaq Global Select Market. In late August 2019, Tricida
submitted its New Drug Application ("NDA") for veverimer to the
United States Food and Drug Administration ("FDA") under the FDA's
Accelerated Approval Program. The FDA accepted Tricida's NDA for
review three months later.
Beginning in May 2020, Tricida began to receive indications from
the FDA that there were issues with its NDA. Early that month,
Tricida executives met with representatives from the FDA, in which
the FDA shared that it had concerns regarding: (1) the magnitude
and durability of the treatment effect on the surrogate marker of
serum bicarbonate demonstrated in the TRCA-301 and TRCA-301E
trials; and (2) the applicability of data from the TRCA-301 and
TRCA-301E trials to the U.S. population.
On July 15, 2020, Tricida issued a press release stating that the
FDA had notified it that the Agency had identified deficiencies
that preclude discussion of labeling and postmarketing
requirements/commitments at this time. Tricida issued another press
release on Aug. 24, 2020, stating that it had received a Complete
Response Letter from the FDA on Aug. 21, 2020, explaining that
Tricida's Phase 3 trial was inadequate on its own to demonstrate
the efficacy of veverimer.
Two months later, on Oct. 29, 2020, Tricida announced that the FDA
had informed it that the FDA was unlikely to rely solely on serum
bicarbonate data for determination of efficacy and would require
evidence of veverimer's effect on CKD progression from a near-term
interim analysis of the VALOR-CKD trial for approval under the
Accelerated Approval Program. Finally, on Feb. 25, 2021, Tricida
announced in a press release that the FDA had denied the appeal of
its application denial.
In January 2021, Plaintiff Michael Pardi filed this lawsuit,
asserting violations of Sections 10(b) and 20(a) of the Securities
Exchange Act and Rule 10b-5. In April 2021, the Court appointed
Fiore as Lead Plaintiff and Block & Leviton LLP as Lead Counsel.
Fiore seeks to represent "a class consisting of all purchasers of
the common stock of Tricida" from June 28, 2018, through Feb. 25,
2021.
Klaerner asks the Court to take judicial notice of 30 exhibits. He
argues that the exhibits are appropriately subject to the Court's
consideration under the doctrines of judicial notice and
incorporation by reference. Fiore filed no objection to either of
Klaerner's requests for judicial notice.
Exhibits 1–7 are public documents filed with the SEC. Exhibit 17
is a public decisional memo from the Office of Drug Evaluation,
which Klaerner offers to provide publicly available information
about a previous drug development program he led. Exhibit 22 is an
FDA Advisory Committee Calendar document publicly posted by the
FDA. Exhibits 23–26 are documents publicly posted by the National
Institutes of Health.
The Court previously granted judicial notice as to Exhibits 1–6
and 22–26 without taking notice of the truth of any of the facts
asserted. Accordingly, the Court grants Klaerner's request for
judicial notice as to Exhibits 1–7, 17, and 22–26 for the
purpose of considering what was disclosed to the market. In doing
so, the Court does not assume the truth of any of the facts
asserted.
Exhibits 8–14 and 28 and Reply Exhibit 2 are communications
between Tricida and the FDA. All of these exhibits except for
Exhibit 13 are cited in the SAC and serve as the basis for Fiore's
new allegations of falsity and scienter. Exhibits 15–16 are
transcripts of earnings calls cited in the SAC, which the Court
found to be properly subject to judicial notice in its prior
order.
Reply Exhibit 1 is a transcript from an earnings call that is not
cited in the SAC. Exhibits 8–12, 14–16, and 28, as well as
Reply Exhibit 2, are incorporated by reference because the SAC
explicitly and repeatedly refers to excerpts of these exhibits to
support its claims. Finding these documents incorporated by
reference, the Court grants the motion as to Exhibits 8–12,
14–16, and 28 and Reply Exhibit 2.
Because Exhibit 13 and Reply Exhibit 1 are not specifically
referenced in the complaint or relevant to the Court's analysis
because they are offered to dispute the SAC's well-pled
allegations, Judge Gilliam holds Klaerner's requests as to those
exhibits are denied.
Exhibits 18–21 are four publications from the scientific journal,
The Lancet. The Court previously took judicial notice of these
publications to indicate what was in the public realm at the time.
For the same reasons, the Court grants Klaerner's request for
judicial notice as to Exhibits 18–21, again without taking notice
of the truth of the facts asserted.
Finally, Klaerner seeks judicial notice of Exhibit 27, which is a
public court filing related to Tricida's bankruptcy proceedings.
The Court may take judicial notice of court filings and other
matters of public record, and in light of Fiore's lack of
opposition, the Court grants Klaerner's request as to Exhibit 27.
Lead Plaintiff Fiore alleges that Klaerner violated Section 10(b)
of the Exchange Act and Rule 10b-5 by making false or misleading
statements either intentionally or recklessly, starting with the
June 28, 2018 Registration Statement and Prospectus accompanying
Tricida's IPO and ending with Tricida's Feb. 25, 2021 press
release.
Mr. Klaerner moves to dismiss on two grounds: (1) the challenged
statements were not materially false or misleading; and (2) Fiore
fails to adequately plead facts giving rise to a strong inference
of scienter.
As a preliminary matter, Judge Gilliam notes, without seeking
leave, Klaerner attempts to revisit statements that the Court
already found sufficiently pled. Judge Gilliam points out that this
is an impermissible de facto motion for reconsideration of the
Court's previous order, which Klaerner neither acknowledges nor
properly briefs.
The Court finds that there is no basis to revisit any of its prior
rulings, including the statements discussing outstanding review
issues with the FDA that the Court previously found to be
sufficiently pled. Accordingly, the Court only addresses the
statements that it previously found inadequately pled, along with
the new purported misrepresentations and allegations of scienter
raised in the operative complaint.
Mr. Klaerner challenges Fiore's claims that his statements
concerning Tricida's Phase 3 clinical trial for veverimer were
false or misleading. In the SAC, Fiore challenges a number of
statements made by Klaerner, which were allegedly misleading as to
the likelihood that Tricida would achieve accelerated approval
because those representations omitted concerns raised by the FDA in
its ongoing dialogue with Tricida throughout the review and
approval process.
The Court finds that the statements identified by Fiore are
opinions, since they inherently reflect the speaker's assessment of
and judgment about the underlying circumstances. Moreover, the
Court agrees with Klaerner that there is no general requirement
under the securities laws for a company to engage in a rolling,
communication-by-communication disclosure of every detail arising
from the back-and-forth dialogue with the FDA throughout its
complex review and approval process, or to adopt the FDA's position
as correct and share it with the public when discussing its
product. Therefore, the Court grants Klaerner's motion as to these
statements.
The Court previously found that Fiore failed to sufficiently plead
that Klaerner's statement on the May 7, 2020 earnings call that an
upcoming Advisory Committee meeting, also known as "AdCom," was
canceled due in part to the logistical challenges posed by COVID-19
was false or misleading. In the SAC, Fiore now directly alleges
that the FDA did not cite logistical challenges stemming from
COVID-19 as even a contributing factor in canceling the AdCom
meeting in its communications with Tricida.
Construing the pleadings in the light most favorable to Fiore, the
Court concludes that he has sufficiently alleged that Klaerner's
May 7 statement was false or misleading given that the FDA never
cited COVID-19 logistics as the reason for the cancellation.
Therefore, the Court denies Klaerner's motion to dismiss on this
ground.
Similarly, the SAC identifies other factual representations that
Fiore contends were misleading with respect to Tricida's likelihood
of achieving FDA approval. For example, Klaerner stated that 196 of
the 208 subjects who completed the 12-week treatment period in the
pivotal Phase 3 trial, TRCA-301, agreed and were eligible to
continue in the extension trial, TRCA-301E, which was completed in
March 2019.
The Court finds that the SAC does not adequately plead that these
omissions identified by Fiore made the affirmative factual
statements false or misleading. Importantly, Tricida did disclose
to investors that the majority of the trial participants were
outside of the United States and explained how that fact could
affect FDA approval. Accordingly, the Court grants Klaerner's
motion as to these factual statements.
Mr. Klaerner also contends that Fiore's allegations are
insufficient to support a "strong inference" of scienter. The Court
finds, among other things, that Fiore fails to sufficiently allege
scienter as to the challenged statements, and to adequately plead
scienter as to the risk disclosures. Therefore, the Court denies
Klaerner's motion on this ground.
For the reasons stated in this Order, the Court rules as follows:
1. The Court denies Klaerner's motion to dismiss as to Fiore's
claim based on canceling the Advisory Committee meeting in
part due to COVID-19; and
2. The Court grants Klaerner's motion to dismiss as to Fiore's
other claims without leave to amend due to the failure to
adequately plead falsity and scienter.
In sum, at this stage of the proceedings, the Court has found that
two categories of statements about the May 1, 2020 late-cycle
meeting are actionable under the PSLRA and may proceed: (1) the
statements discussing outstanding review issues with the FDA that
the Court found in its prior order found to be sufficiently pled;
and (2) the statement that the AdCom meeting was canceled due in
part to the logistical challenges posed by COVID-19 that the Court
now finds is sufficiently pled.
The Court has set a telephonic case management conference for March
26, 2024, at 2:00 p.m. The parties were to submit a joint case
management statement on March 19, 2024.
A full-text copy of the Court's Order dated March 11, 2024, is
available at https://tinyurl.com/mwb2ekdj from PacerMonitor.com.
UNITE HERE: Conway Sues Over Unprotected Private Information
------------------------------------------------------------
TAMIKO CONWAY, on behalf of herself individually and on behalf of
all others similarly situated, Plaintiff v. UNITE HERE, Defendant,
Case No. 1:24-cv-01904 (S.D.N.Y., March 13, 2024) arises out of the
Defendant's failure to implement adequate and reasonable
cyber-security procedures and protocols necessary to protect its
union members' personally identifiable information from a
foreseeable and preventable cyber-attack.
The Plaintiff brings this class action lawsuit on behalf of those
similarly situated to address Defendant's inadequate safeguarding
of Class Members' PII 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.
Headquartered in New York, NY, Unite Here is a labor union that
represents 300,000 working people across Canada and the United
States. [BN]
The Plaintiff is represented by:
Vicki J. Maniatis, Esq.
MILBERG COLEMAN BRYSON PHILLIPS GROSSMAN, PLLC
100 Garden City Plaza, Suite 500
Garden City, NY 11530
Telephone: (865) 412-2700
E-mail: vmaniatis@milberg.com
- and -
Gary M. Klinger, Esq.
MILBERG COLEMAN BRYSON PHILLIPS GROSSMAN, PLLC
227 W. Monroe Street, Suite 2100
Chicago, IL 60606
Telephone: (866) 252-0878
E-mail: gklinger@milberg.com
UNITED SERVICES: Davidson Seeks Leave to File Documents Under Seal
-------------------------------------------------------------------
In the class action lawsuit captioned as HAROLD J. DAVIDSON, a
married man, on behalf of himself and all others similarly
situated, v. UNITED SERVICES AUTOMOBILE ASSOCIATION, a Texas
Corporation, Case No. 2:20-cv-00527-JWH-MAA (C.D. Cal.), the
Plaintiff asks the Court to enter an order granting his application
and place documents provisionally under seal and extending the
deadline for USAA to respond up to and including March 29, 2024.
Pursuant to Civil Local Rule 79-5, and the Protective Order signed
by the Court, Mr. Davidson submits this application for leave to
file under seal certain portions of his motion for class
certification and Exhibits 1-6, 8-30 submitted in support of the
Plaintiff's motion for class certification, and to file under
provisional seal those portions designated confidential but not
agreed to by the parties, so that Defendant USAA can put forth its
position on sealing.
United Services is an American financial services company providing
insurance and banking products exclusively to members of the
military, veterans, and their families.
A copy of the Plaintiff's motion dated March 18, 2024 is available
from PacerMonitor.com at https://urlcurt.com/u?l=8JuIEI at no extra
charge.[CC]
The Plaintiff is represented by:
Jeff Bolender, Esq.
BOLENDER LAW FIRM, PC
2276 Torrance Blvd.
Torrance, CA 90501
Telephone: (310) 320-0725
Facsimile: (424) 320-2642
E-mail: jbolender@bolender-firm.com
- and -
Robert B. Carey, Esq.
John M. DeStefano, Esq.
E. Tory Beardsley, Esq.
HAGENS BERMAN SOBOL SHAPIRO LLP
11 West Jefferson Street, Suite 1000
Phoenix, AZ 85003
Telephone: (602) 840-5900
Facsimile: (602) 840-3012
E-mail: rob@hbsslaw.com
johnd@hbsslaw.com
toryb@hbsslaw.com
UNITED SERVICES: Davidson Suit Seeks Rule 23 Class Certification
----------------------------------------------------------------
In the class action lawsuit captioned as HAROLD J. DAVIDSON, a
married man, on behalf of himself and all others similarly
situated, v. UNITED SERVICES AUTOMOBILE ASSOCIATION, a Texas
Corporation, Case No. 2:20-cv-00527-JWH-MAA (C.D. Cal.), the
Plaintiff will move the Court under Federal Rule of Civil Procedure
23 for an order granting the Plaintiff's motion for class
certification.
This motion is made following the conference of counsel pursuant to
L.R. 7-3, which took place over multiple telephone conversations in
July 2023 between Plaintiff's counsel John M. DeStefano and the
Defendant's counsel David C. Scott.
United Services provides insurance and banking products exclusively
to members of the military, veterans, and their families.
A copy of the Plaintiff's motion dated March 18, 2024 is available
from PacerMonitor.com at https://urlcurt.com/u?l=22jc3K at no extra
charge.[CC]
The Plaintiff is represented by:
Jeff Bolender, Esq.
BOLENDER LAW FIRM, PC
2276 Torrance Blvd.
Torrance, CA 90501
Telephone: (310) 320-0725
Facsimile: (424) 320-2642
E-mail: jbolender@bolender-firm.com
- and -
Robert B. Carey, Esq.
John M. DeStefano, Esq.
E. Tory Beardsley, Esq.
HAGENS BERMAN SOBOL SHAPIRO LLP
11 West Jefferson Street, Suite 1000
Phoenix, AZ 85003
Telephone: (602) 840-5900
Facsimile: (602) 840-3012
E-mail: rob@hbsslaw.com
johnd@hbsslaw.com
toryb@hbsslaw.com
UNITEDHEALTH GROUP: Fails to Prevent Data Breach, Suit Alleges
--------------------------------------------------------------
ADVANCED OBSTETRICS & GYNECOLOGY PC, individually and on behalf of
all others similarly situated, Plaintiff v. UNITEDHEALTH GROUP
INCORPORATED; OPTUM, INC.; and CHANGE HEALTHCARE INC., Defendants,
Case No. 3:24-cv-00063-MPM-JMV (N.D. Miss., March 14, 2024) alleges
that the Defendants failed to implement appropriate data management
and security measures to prevent data breach.
According to the Plaintiff in the complaint, the Defendants are
responsible for the harms caused and will continue to cause the
Plaintiff and other similarly situated persons in the massive and
preventable cyberattack purportedly discovered by the Defendants on
February 21, 2024, in which cybercriminals, known as the
BlackCat/ALPHV ransomware group, infiltrated the Defendants'
inadequately protected network and accessed highly sensitive
information which was being kept unprotected ("Data Breach").
The Defendants disregarded the rights of the Plaintiff and Class
Members by intentionally, willfully, recklessly, and negligently
failing to take and implement adequate and reasonable measures to
ensure that sensitive information was safeguarded and failing to
take available steps to prevent unauthorized disclosure of data and
failing to follow applicable, required and appropriate protocols,
policies, and procedures regarding the encryption of data, even for
internal use.
As a result of the Defendants' failures, medical providers
including Plaintiff and Class Members have been unable to receive
payment for their services. As many Class Members, including
Plaintiff, have limited liquidity, this disruption threatens to
bankrupt hundreds if not thousands of care providers, if it hasn't
done so already, says the suit.
UNITEDHEALTH GROUP INCORPORATED owns and manages organized health
systems. The Company provides employers products and resources to
plan and administer employee benefit programs. [BN]
The Plaintiff is represented by:
John W. ("Don") Barrett, Esq.
BARRETT LAW GROUP, P.A.
404 Court Square N
P.O. Box 927
Lexington, MS 39095
Telephone: (662) 834-2488
Email: dbarrett@barrettlawgroup.com
- and -
Richard R. Barrett, Esq.
LAW OFFICES OF RICHARD R.
BARRETT, PLLC
2086 Old Taylor Rd., Suite 1011
Oxford, MS 38655
Telephone: (662) 380-5018
Email: rrb@rrblawfirm.net
- and -
Charles J. LaDuca, Esq.
Brendan Thompson, Esq.
Christian Hudson, Esq.
CUNEO GILBERT & LADUCA, LLP
4725 Wisconsin Avenue NW Suite 200
Washington, DC 20016
Telephone: (202) 789-3960
Email: charlesl@cuneolaw.com
brendant@cuneolaw.com
chudson@cuneolaw.com
US IMMIGRATION: Bid for Leave to File Sur-Reply Sought in Jimenez
-----------------------------------------------------------------
In the class action lawsuit captioned as VICTOR JIMENEZ, et al., v.
U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT, et al., Case No.
1:23-cv-06353-RMI (N.D. Cal.), the Defendants move the Court for
leave to file sur-reply in support of opposition to the Plaintiff
Jimenez's motion for provisional class certification.
The Plaintiffs' Reply asserts additional factual allegations
regarding COVID-19 medical treatment at Golden State Annex ("GSA")
for proposed named Plaintiffs, all of which require a response.
The Plaintiffs' Reply relies on assertions such as, "in December of
2023 there was a COVID-19 outbreak in Mr. Orozco Cuevas'
dormitory." Until the Plaintiffs filed their reply, they did not
previously allege an outbreak at GSA in December 2023.
The Plaintiffs make other serious allegations against the
Defendants for the first time in their reply, including claims that
Defendants did not "wash anyone's blankets or clothing" during an
alleged outbreak, and that the Defendants "did not offer a COVID-19
vaccine to anyone."
The Defendants request the opportunity to respond to the new facts
regarding the proposed named Plaintiffs and the serious allegations
that the Defendants just learned of in the Plaintiffs' Reply. As
such, Defendants request leave to file the attached sur-reply to
address
the new arguments advanced in Plaintiffs' Reply and the factual
allegations offered by proposed named Plaintiffs.
On Dec. 14, 2023, the Plaintiffs filed a motion for provisional
class certification.
On Feb. 25, 2024, the Defendants filed an opposition to the
Plaintiffs' motion for provisional class certification.
On Feb. 27, 2024, the Plaintiffs filed a motion to add new
Plaintiffs as Class Representatives and attached a First Amended
Complaint.
On Feb. 17, 2024, the Plaintiffs indicated that they do not oppose
the Defendants filing a sur-reply to Plaintiffs' motion for
provisional class certification.
U.S. Immigration protects America from the cross-border crime and
illegal immigration.
A copy of the Defendants' motion dated March 18, 2024 is available
from PacerMonitor.com at https://urlcurt.com/u?l=Ywj6o3 at no extra
charge.[CC]
The Defendants are represented by:
Michelle M. Ramus, Esq.
Alexa White, Esq.
Shane Young, Esq.
Anna L. Dichter, Esq.
UNITED STATES DEPARTMENT OF JUSTICE
Ben Franklin Station
Washington, DC 20044
Telephone.: (202) 353-2405
Facsimile: (202) 305-7000
E-mail: Anna L. Dichter@usdoj.gov
US SPECIALTY: Wins Bid for Partial Summary Judgment in Pancake Suit
-------------------------------------------------------------------
Judge Marsha J. Pechman of the U.S. District Court for the Western
District of Washington, Seattle, grants the Defendant's motion for
partial summary judgment in the lawsuit entitled PANCAKE KING, LLC,
638, INC., and 668, INC., Plaintiffs v. U.S. SPECIALTY INSURANCE
COMPANY, Defendant, Case No. 2:23-cv-01142-MJP (W.D. Wash.).
The matter comes before the Court on the Parties' Cross-Motions for
Partial Summary Judgment. Having reviewed the Cross-Motions,
Replies, the Defendants' Requests for Judicial Notice, and all
supporting materials, the Court grants the Defendant's Motion and
denies the Plaintiffs' Motion.
Plaintiffs Pancake King LLC, 638, Inc., and 668, Inc. (collectively
"IHOP") are three International House of Pancakes franchisees, who
obtained an employment practices insurance policy from U.S.
Specialty. The Policy provides coverage for certain employment
practices and "is written on a claims-made and reported basis,
which requires that any claim be made and reported to USSIC during
the policy period."
IHOP presented U.S. Specialty with a claim for coverage under the
Policy after two employees filed class actions alleging violations
of Washington laws related to minimum wage and meal and rest
breaks. U.S. Specialty defended IHOP under a reservation of rights,
subject to a $100,000 cap on defense costs, and denied any duty to
indemnify IHOP for the claims.
Specialty justified its refusal to indemnify based on the following
language: "This Policy does not apply to any Loss: . . ." The Court
refers to this as the "Sublimit."
The primary dispute in the Parties' Cross-Motions is whether the
class actions should be considered to be based upon, or arising
from an actual or alleged violation of state wage and hour laws. If
the claims presented in the class actions were for violations of
wage and hour laws, then U.S. Specialty properly denied coverage
and is entitled to relief on its counterclaim. If not, then IHOP is
entitled to relief on some of its claims. To understand these
issues, the Court examines the claims in the class actions.
The first class action, Alyexi R. Archer v. Terpstra & Company LLC,
et al., Case No. 22-2-12277-3 SEA, alleged that IHOP failed to
encourage, record, promote, and compensate employees for rest and
meal breaks. The complaint contains the following causes of action:
(1) failure to ensure rest periods in violation of the Washington
Industrial Welfare Act RCW 49.12 ("IWA") and related Washington
Department of Labor & Industries ("DOLI") Regulation WAC
296-126-092, and failure to compensate for violations of the
Washington Minimum Wage Act ("MWA") and Washington Wage Payments
Act ("WPA"); (2) failure to provide meal periods in violation of
the IWA and DOLI Regulation WAC 296-126-092, and failure to
compensate for violations of the MWA and WPA; (3) failure to pay
overtime in violation of the MWA; and (4) willful withholding of
wages in violation of the Washington Wage Rebate Act ("WRA"). And
the prayer for relief asked for unpaid wages and double the wages
due to the Plaintiff pursuant to RCW 49.52.070.
Ultimately the parties settled the Archer class action for
$375,000. The settlement agreement included a release of "any and
all claims that were brought or that were brought or that could
have been brought based on any facts alleged in the Case with
respect to wage and hour violations by all Settlement Class
Members." The parties also settled Archer's individual wrongful
termination claims through a settlement agreement whose release
expressly carved out the claims based on "alleged wage and hour
violations made on a class basis in the case of Archer v. Terpstra
& Company, LLC, et al., No. 22-2-12277-3 SEA, King County Superior
Court."
In the second class action, Jarrod Kiger v. Pancake King, LLC, Case
No. 23-2-04966-7 SEA, the plaintiff alleged that Pancake King LLC
failed to provide employees with rest and meal breaks, compensate
employees for missed rest and meal breaks, and ensure policies and
practices to allow employees to take these breaks. The complaint
contained two causes of action: (1) failure to compensate for
missed meal and rest periods in violation of the IWA and DOLI
Regulation WAC 296-126-092; and (2) willful and intentional
withholding of wages in violation of the WRA.
The parties settled the claims in Kiger. Kiger agreed not to opt
out of or challenge the settlement reached in the Archer case in
exchange for $4,000 and the ability to obtain a pro rata share of
the Archer settlement.
Judge Pechman opines that there are three reasons why U.S.
Specialty is entitled to partial summary judgment. First, the plain
language of the Policy forecloses indemnification for the meal and
rest break claims in both the Archer and Kiger lawsuits. The
Sublimit applies to the claims presented in both Archer and Kiger,
and renders U.S. Specialty's denial of indemnification proper. The
Court finds no support for IHOP's argument that there is ambiguity
in the Sublimit because the Policy does not separately define the
term "wage and hour law."
Second, even if the Court were to find ambiguity in the Policy,
IHOP fails to explain why the Sublimit does not apply to the meal
and rest break claims in the two underlying actions. Third, IHOP
fails to identify any legal authority that supports its arguments
that the IWA and DOLI regulations only concern worker safety.
Judge Pechman says neither Archer nor Kiger included claims for
injunctive relief, and U.S. Specialty has not admitted that the
claims in the cases did not relate to wages. To the contrary, IHOP
itself has expressly identified the settled claims in the Archer
matter as being "wage and hour violations," which undermines its
position in the present lawsuit.
The Court, therefore, grants U.S. Specialty's Cross-Motion and
denies IHOP's Cross-Motion. U.S. Specialty is entitled to judgment
in its favor on its Counterclaim.
Having considered the Parties' arguments, the Policy's plain
language, and the underlying claims, the Court finds that the
Sublimit unambiguously applies to the claims presented in the
Archer and Kiger actions.
The Court finds that U.S. Specialty is entitled to judgment in its
favor on its counterclaim and that it owed no duty to fund the
settlements and indemnify IHOP in the Archer and Kiger actions. The
Clerk is ordered to provide copies of this order to all counsel.
A full-text copy of the Court's Order dated March 11, 2024, is
available at https://tinyurl.com/ysssvusf from PacerMonitor.com.
VALERO SERVICES: Fails to Pay Proper Wages, Arellano Alleges
------------------------------------------------------------
ERNESTO ARELLANO, individual and on behalf of all others similarly
situated, Plaintiff v. VALERO SERVICES, INC.; and DOES 1 through
100, inclusive, Defendant, Case No. 24STCV06281 (Cal. Super., Los
Angeles Cty., March 13, 2024) seeks to recover from the Defendants
unpaid wages and overtime compensation, interest, liquidated
damages, attorneys' fees, and costs.
Plaintiff Arellano was employed by the Defendants as a hydro
operator.
VALERO SERVICES, INC. manufactures and markets fuels. The Company
offers transportation fuels and petrochemical products including
gasoline, diesel, distillate and residual fuel oils, kerosene,
ethanol, and lubricants. [BN]
The Plaintiff is represented by:
Larry W. Lee, Esq.
Simon L. Yang, Esq.
DIVERSITY LAW GROUP, P.C.
515 S. Figueroa St., Suite 1250
Los Angeles, CA 90071
Telephone: (213) 488-6555
Facsimile: (213) 488-6554
Email: lwlee@diversitylaw.com
sly@diversitylaw.com
- and -
Edward W. Choi, Esq.
LAW OFFICES OF CHOI & ASSOCIATES,
A Professional Law Corporation
515 S. Figueroa St., Suite 1250
Los Angeles, CA 90071
Telephone: (213) 381-1515
Facsimile: (213) 465-4885
Email: edward.choi@choiandassociates.com
- and -
David Lee, Esq.
DAVID LEE LAW, APC
515 South Flower Street, Suite 1900
Los Angeles, CA 90071
Telephone: (213) 236-3536
Facsimile: (866) 658-4722
VERA WHOLE HEALTH: Spencer Suit Removed to W.D. Washington
----------------------------------------------------------
The case captioned as Shannon Spencer, individually and on behalf
of all others similarly situated v. VERA WHOLE HEALTH, INC., a
foreign profit corporation doing business as VERA WHOLE HEALTH and
APREE HEALTH; VERA WHOLE HEALTH WA, P.C., a Washington professional
services corporation; CASTLIGHT HEALTH, INC., a foreign profit
corporation doing business as CASTLIGHT HEALTH and APREE HEALTH;
and DOES 1-20, Case No. 24-2-00163-8 was removed from the SEA in
King County Superior Court, to the U.S. District Court for the
Western District of Washington on March 13, 2024, and assigned Case
No. 2:24-cv-00337.
The Complaint asserts three causes of action against Defendants on
behalf of Plaintiff and the putative class, including violation of
RCW; injunctive relief; and declaratory relief.[BN]
The Defendants are represented by:
Melissa K. Mordy, Esq.
DAVIS WRIGHT TREMAINE LLP
929 108th Avenue NE, Suite 1500
Bellevue, WA 98004-4786
Phone: (425) 646-6122
Fax: (425) 646-6199
Email: missymordy@dwt.com
- and -
Margaret Burnham, Esq.
David Rund, Esq.
DAVIS WRIGHT TREMAINE LLP
920 Fifth Avenue, Suite 3300
Seattle, WA 98104-1610
Phone: (206) 757-8374
Fax: (206) 757-7700
Email: megburnham@dwt.com
davidrund@dwt.com
VERDUGO VISTA: Faces Mancilla Suit Over Labor Code Breaches
-----------------------------------------------------------
MANCILLA, LIZBETH, an individual, on behalf of herself and others
similarly situated; Plaintiff v. VERDUGO VISTA OPERATING COMPANY,
LP, a Delaware limited partnership; and DOES 1 through 10,
inclusive; Defendants, Case No. 24NNCV00247 (Cal. Super., Los
Angeles Cty., March 13, 2024) accuses the Defendants of violating
the California Labor Code.
The Plaintiff was employed by Defendants as a non-exempt
receptionist at La Crescent Healthcare Center from approximately
October 2020--September 2023. Allegedly, Defendants failed to pay
Plaintiff and the aggrieved employees minimum wages for all hours
worked. Among other things, Defendants failed to pay them for work
performed during interrupted meal periods. The Defendants also
rounded meal period times up, thereby deducting thirty-minutes for
meal periods, even when there were between 25-29 minutes.
Defendants also engaged in an unlawful practice of time-shaving or
rounding work hours, says the Plaintiff.
Verdugo Vista Operating Company, LP, own and operates skilled
nursing facilities in California, including La Crescenta Healthcare
Center, located at 3050 Montrose Ave., La Crescenta, CA 91214.
[BN]
The Plaintiff is represented by:
Blake R. Jones, Esq.
BLAKE JONES LAW, PC
355 South Grand Avenue Suite 2450 - #2052
Los Angeles, CA 90071
Telephone: (323) 576-3221
E-mail: blake@blakejones.law
VERTIV CORPORATION: Torok Suit Removed to N.D. California
---------------------------------------------------------
The case captioned as Lawrence Torok, on behalf of himself and all
others similarly situated, and the general public v. VERTIV
CORPORATION, an Ohio corporation, and DOES 1 through 50, inclusive,
Case No. 24CV063621 was removed from the Superior Court of the
State of California for the County of Alameda, to the U.S. District
Court for the Northern District of California on March 15, 2024,
and assigned Case No. 4:24-cv-01645.
The Complaint in the State Court Action sets forth six causes of
action: Failure to Provide Meal Periods; Failure to Provide Rest
Periods; Failure to Pay Hourly Wages and Overtime; Failure to
Timely Pay All Final Wages; Failure to Indemnify; and Unfair
Competition.[BN]
The Defendants are represented by:
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: paul.smith@ogletree.com
VIRGIN PULSE INC: Elston Suit Transferred to D. Massachusetts
-------------------------------------------------------------
The case styled as Shirley Elston, and others similarly situated v.
Virgin Pulse Inc., Welltok Inc., Case No. 3:24-cv-05096 was
transferred from the U.S. District Court for the Western District
of Washington, to the U.S. District Court for the District of
Massachusetts on March 18, 2024.
The District Court Clerk assigned Case No. 1:24-cv-10671-ADB to the
proceeding.
The nature of suit is stated as Other Personal Property for
Property Damage.
Virgin Pulse, Inc. -- https://www.virginpulse.com/ -- operates as a
digital health, wellbeing, and engagement company.[BN]
The Plaintiff is represented by:
Charles E. Schaffer, Esq.
LEVIN SEDRAN & BERMAN
510 Walnut Street, Suite 500
Philadelphia, PA 19106-3697
Phone: (215) 592-1500
Fax: (215) 592-4663
Email: cschaffer@lfsblaw.com
- and –
Kristen Anne Johnson, Esq.
HAGENS BERMAN SOBOL SHAPIRO LLP
1 Faneuil Hall Square, Ste. 5th Floor
Boston, MA 02109
Phone: (617) 482-3700
Fax: (617) 482-3003
Email: kristenj@hbsslaw.com
- and –
Sean R. Matt, Esq.
HAGENS BERMAN SOBOL SHAPIRO LLP
1301 2nd Ave, Suite 2000
Seattle, WA 98101
Phone: (206) 623-7292
Email: sean@hbsslaw.com
VITAMIN WELL LLC: Miller Files ADA Suit in W.D. New York
--------------------------------------------------------
A class action lawsuit has been filed against Vitamin Well LLC. The
case is styled as Kimberly Miller, on behalf of herself and all
other persons similarly situated v. Vitamin Well LLC, Case No.
1:24-cv-00227 (W.D.N.Y., March 15, 2024).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Vitamin Well Group -- https://www.vitaminwell.com/ -- provide
healthier and better tasting drinks, snacks, and protein
products.[BN]
The Plaintiff is represented by:
Jeffrey M. Gottlieb, Esq.
GOTTLIEB & ASSOCIATES
150 E. 18th Street, Suite PHR
New York, NY 10003
Phone: (212) 228-9795
Fax: (212) 982-6284
Email: jeffrey@gottlieb.legal
- and -
Michael A. LaBollita, Esq.
GOTTFRIED & GOTTFRIED, LLP
122 East 42nd. St., Suite 620
New York, NY 10168
Phone: (212) 228-9795
Email: michael@gottlieb.legal
WAL-MART STORES: Foster Suit Removed to N.D. Texas
--------------------------------------------------
The case styled as Essence Foster, individually and on Behalf of
all other similarly situated v. Wal-Mart Stores Texas LLC doing
business as: Walmart SuperCenter #2649, Walmart Inc. doing business
as: Walmart SuperCenter #2649, Case No. DC-24-00536 was removed
from the 162nd Judicial District Court, Dallas County, Texas, to
the U.S. District Court for the Northern District of Texas on March
15, 2024.
The District Court Clerk assigned Case No. 3:24-cv-00650-D to the
proceeding.
The nature of suit is stated as Other Personal Injury Torts/Pers
Inj.
Walmart Inc. -- https://www.walmart.com/ -- is an American
multinational retail corporation that operates a chain of
hypermarkets, discount department stores, and grocery stores in the
United States, headquartered in Bentonville, Arkansas.[BN]
The Plaintiff is represented by:
Kurt Hollis Jones, Esq.
Brian D. Flick, Esq.
Marc E. Dann, Esq.
THE DANN LAW FIRM CO LPA
15000 Madison Avenue
Lakewood, OH 44107
Phone: (216) 373-0539
Email: kjones@dannlaw.com
bflick@dannlaw.com
The Defendants are represented by:
Randall Wilson Miller, Esq.
Frederick William Addison, III, Esq.
Gregory Carr Noschese, Esq.
Jordan R. Curry, Esq.
William Marcus Toles, Esq.
MUNSCH HARDT KOPF AND HARR
500 N Akard Street, Suite 4000
Dallas, TX 75201
Phone: (214) 855-7539
Email: rwmiller@munsch.com
raddison@munsch.com
gnoschese@munsch.com
jcurry@munsch.com
wtoles@munsch.com
WESTERN REFINING: Borba Suit Removed to E.D. California
-------------------------------------------------------
The case captioned as Cory Borba, an individual and on behalf of
all others similarly situated v. WESTERN REFINING RETAIL, LLC, a
Delaware limited liability company; and DOES 1 through 100,
inclusive, Case No. VCU305724 was removed from the Superior Court
of the State of California for the County of Tulare, to the U.S.
District Court for the Eastern District of California on March 15,
2024, and assigned Case No. 1:24-cv-00318-EPG.
The Plaintiff's Complaint purports to bring his claims on behalf of
himself and several classes based on alleged violations of the
California Labor Code, seeking to recover among other claims,
unpaid wages, including minimum wages; overtime wages; lawful meal
and/or rest periods; accurate wage statements; and timely payment
of wages.[BN]
The Defendants are represented by:
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
ZUVI INC: Reid Files ADA Suit in S.D. New York
----------------------------------------------
A class action lawsuit has been filed against Zuvi Inc. The case is
styled as Nadreca Reid, individually and as the representative of a
class of similarly situated persons v. Zuvi Inc., Case No.
1:24-cv-01967 (S.D.N.Y., March 15, 2024).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Zuvi -- https://www.zuvilife.com/ -- manufactures and sells hair
dryers and accessories.[BN]
The Plaintiff is represented by:
Dan Shaked, Esq.
SHAKED LAW GROUP, P.C.
14 Harwood Court, Suite 415
Scarsdale, NY 10583
Phone: (917) 373-9128
Email: shakedlawgroup@gmail.com
[*] Class Suits Filed Over Online Ticket Hidden Fees in New York
-----------------------------------------------------------------
JDSupra reports that in New York, there has been an uptick in class
action lawsuits seeking to contest "hidden" ticket fees following
online purchases. The New York Arts & Cultural Affairs Law was
amended in August 2022, which has prompted dozens of nearly
identical class action lawsuits to be filed in New York federal and
state courts against various operators of places of entertainment
related to charges incurred by consumers for admission.
New York Arts & Cultural Affairs Law Sec. 25.07
The New York Arts & Cultural Affairs Law governs ticket sale
practices for entertainment providers in New York that sell tickets
to events. Under Sec. 25.07(4), "every operator . . . of a place
of entertainment . . . shall disclose the total cost of the ticket,
inclusive of all ancillary fees that must be paid in order to
purchase the ticket. . . Such disclosure of the total cost and
fees shall be displayed in the ticket listing prior to the ticket
being selected for purchase. Disclosures of subtotals, fees,
charges, and any other component of the total price shall not be
false or misleading and may not be presented more prominently or in
the same or larger size as the total price. The price of the ticket
shall not increase during the purchase process, excluding
reasonable fees for the delivery of non-electronic tickets based on
the delivery method selected by the purchaser, which shall be
disclosed prior to accepting payment therefor." Class action
complaints have asserted that websites that facilitate online
ticket sales do not properly disclose the total ticket price,
inclusive of fees and other charges, prior to the ticket being
selected for purchase. The complaints have also alleged that the
total ticket price has not been displayed on the first webpage
where the ticket price appears. The law allows for any person
injured by a violation to recover any actual damages or $50,
whichever is greater. The Court may also award reasonable
attorneys' fees to a prevailing plaintiff.
Plaintiffs' Lawyers Are Not Dragging Their Heels
Plaintiffs across New York State are filing class action lawsuits
against a wide variety of businesses engaged in selling tickets
through their own website and third-party websites. These class
action lawsuits typically allege non-compliance with Sec. 25.07(4)
for failing to disclose service fees and other fees to customers up
front. The lawsuits describe any additional fees (i.e. electronic
or processing fees) as deceitful charges unfairly imposed on
customers under the ambiguous guise of taxes and fees. As a remedy
for violation of the law, class plaintiffs are seeking injunctive
relief to stop current practices, along with class-wide monetary
damages and attorney's fees.
Recommendations
As these lawsuits continue to be filed, businesses should stay
apprised of new developments and assess potential defenses to these
claims.
Companies should evaluate ticket sale practices and make any
necessary changes to comply with the amended New York Arts &
Cultural Affairs Law. Businesses that work with third-party
platforms and ticket resellers should be especially diligent in
ensuring their business partners are also in compliance. [GN]
[*] Free Webinar on AI, Crypto Class Actions on April 4
-------------------------------------------------------
Beard Group Inc. is hosting a FREE Class Action Webinar on Thurs.,
April 4th from 1:00-2:30 pm ET! SIGN UP TODAY!
The Webinar will cover two of the biggest topics of the year:
* The Rise In Artificial Intelligence Class Action
Litigations; and
* a Behind-The-Scenes Look at the Latest Crypto Class Action
Cases
The Webinar will be featuring:
* Gerald L. Maatman, Jr., Partner at Duane Morris LLP;
* Baldo Vinti, Partner at Proskauer Rose LLP;
* Jeff Warshafsky, Partner at Proskauer Rose LLP;
* Jennifer Yang, Senior Counsel at Proskauer Rose LLP;
* Candace Smith, Of Counsel at Herman Jones; and
* Lauren Humphries, Counsel at Buchanan Ingersol & Rooney PC
Register for FREE here https://lnkd.in/dZ7vTsCX
This complimentary Webinar is a run-up to the Class Action Money &
Ethics Conference on May 6th at the Harmonie Club in Manhattan. To
register for CAME 2024, please visit
https://www.classactionconference.com/
[] Free Webinar on AI, Crypto Class Actions This Thursday
---------------------------------------------------------
Beard Group Inc. is hosting a FREE Class Action Webinar on Thurs.,
April 4th from 1:00-2:30 pm ET! SIGN UP TODAY!
The Webinar will cover two of the biggest topics of the year:
* The Rise In Artificial Intelligence Class Action
Litigations; and
* a Behind-The-Scenes Look at the Latest Crypto Class Action
Cases
The Webinar will be featuring:
* Gerald L. Maatman, Jr., Partner at Duane Morris LLP;
* Baldo Vinti, Partner at Proskauer Rose LLP;
* Jeff Warshafsky, Partner at Proskauer Rose LLP;
* Jennifer Yang, Senior Counsel at Proskauer Rose LLP;
* Candace Smith, Of Counsel at Herman Jones; and
* Lauren Humphries, Counsel at Buchanan Ingersol & Rooney PC
Register for FREE here https://lnkd.in/dZ7vTsCX
This complimentary Webinar is a run-up to the Class Action Money &
Ethics Conference on May 6th at the Harmonie Club in Manhattan. To
register for CAME 2024, please visit
https://www.classactionconference.com/
*********
S U B S C R I P T I O N I N F O R M A T I O N
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