/raid1/www/Hosts/bankrupt/CAR_Public/241003.mbx
C L A S S A C T I O N R E P O R T E R
Thursday, October 3, 2024, Vol. 26, No. 199
Headlines
AIG WARRANTYGUARD: Court Grants Bids to Dismiss Shellenberger Suit
AMAZON.COM INC: Bid for Summary Judgment vs Mahone Partly OK'd
ARDEN CLAIMS: Fails to Secure Personal Info, Gomez Suit Says
ARROW FINANCIAL: Claims Settlement Hearing Set January 10
ASHLYNN MARKETING: Court Denies Bid to Dismiss Fraud Class Suit
BANK OF AMERICA: Individual Plaintiffs' Bid to Stay Granted in Part
BIOGEN INC: Faces Suit Over Alleged Tecfidera Monopoly
BOWL AMERICA: Agrees to Settle Breach Class Suit for $2.175-MM
BOYLAND AUTO: Plaintiff's Bid to Proceed in Forma Pauperis Denied
BRITISH AIRWAYS: High Court Rejects "Representative Action" Claim
BUDDI US: Class Action Settlement Gets Final Court Nod
CABINETWORKS MICHIGAN: Fails to Pay OT Wages, Fuller Suit Alleges
CALIFORNIA PHYSICIANS: Murillo Sues Over Breach of Private Info
CHARTER COMMUNICATIONS: Faces Lampos Wage-and-Hour Suit in Ohio
COLONIAL LIFE: Wins Summary Judgment in Seawell, et al. Suit
CORRECTCARE INTEGRATED: Class Settlement Gets Final Court Okay
DAZN US LLC: S.D. New York Directs McNair-Robinson to Amend Suit
DUKE CAPITAL: Court Narrows Claims in Castillo, et al. Lawsuit
DUPONT DE NEMOURS: Black Employees Allege Hostile Work Environment
EXPRESS SERVICES: Sabo Sues Over Data Security Failures
FIRST SOURCE: Bid to Amend Pleading in Sardo Class Suit Due Oct. 11
FORD MOTOR: Glancy Files Expanded Class Period for Securities Suit
GEICO: Loses Bid to Dismiss JCM, et al. Amended Complaint
GEICO: Loses Bid to Transfer Venue of JCM, et al. Suit
GENERAL MOTORS: Court Grants Summary Judgment in White Suit
GOAUTO INSURANCE: Court Dismisses Williams Suit w/ Prejudice
GOOGLE LLC: Bid for Summary Judgment in Frasco Granted in Part
HANMI FINANCIAL: Class Action Settlement Gets Final Court Okay
HC CONCRETE: Construction Workers Class Certified in Avelar Suit
HC CONCRETE: Wins Bid to Drop Misjoined Parties in Avelar
HEARTLAND PAYMENT: 9th Cir. Remands Black Ship, et al. Class Suit
HILL'S PET: Loses Bid to Stay Discovery in KetoNatural Lawsuit
HISAMITSU AMERICA: Class Cert Bid in Hrapoff Modified to Oct. 21
INTOUCHCX SOLUTIONS: Court Narrows Claims in Pearson, et al. Suit
KATZ NANNIS: Brown Sues Over Private Data Breach
KEMPER SPORTS: Scheide Sues Over Alleged Data Breach
KISS NUTRACEUTICALS: Objections to Discovery Order Sustained
LUCERO AG: Hearing on Motion to Withdraw Counsel Set for Nov. 15
MAC PROPERTIES: Settles Power Failure Class Action Suit
MDL 3076: Plaintiffs Seek OK of Global Resolution of All Disputes
MDL 3116: Crawford's Bid to Centralize Litigation in D.N.J. Denied
MDL 3117: Transfer of 35 Suits to NY Tax Foreclosure Row Denied
MDL 3119: 5 Suits Consolidated in Shale Oil Antitrust Row
MDL 3120: Consolidation of 28 Benzene Toxicity Suits Denied
MDL 3121: 6 Suits Consolidated in Healthcare Reimbursement Dispute
MERRILL LYNCH: Court Awards $102MM in Attys.' Fees in IPERS Suit
MERRILL LYNCH: Court Awards $18.8-Mil. in Expenses in IPERS Suit
MERRILL LYNCH: Court Issues Final Judgment & Order in IPERS Suit
MERRILL LYNCH: IPERS and Other Named Plaintiffs Awarded $100K Each
MERRILL LYNCH: Plan of Allocation OK'd for Credit Suisse Settlement
META PLATFORMS: Loses Bid to Dismiss Hartman, et al. BIPA Suit
MICOR INDUSTRIES: Gonzalez Sues Over Labor Law Breaches
NATURESTAR NORTH: Court Dismisses Little's 1st Amended Complaint
NBCUNIVERSAL MEDIA: S.D. New York Dismisses TAC in Golden Suit
NCB MANAGEMENT: Answer to Consolidated Class Complaint Due Oct. 2
NCB MANAGEMENT: Court Grants Bid to Dismiss in Data Breach Suit
NEW YORK CITY: $1.35M in Fees & Costs Awarded in Robinson v. NYCTA
NEWCOMB OIL: Southard's Class Settlement Obtains Final Court Nod
NY BACON: O'Bryant Sues Over Unpredictable Work Schedules
PARK MY FLEET: Grewal Suit Remanded to San Joaquin Superior Court
PLDT INC: Court Grants Final Approval of Class Action Settlement
PORSCHE CARS: Motion to Modify Class Action Settlement Order Okayed
QUTOUTIAO INC: Investors Appeal to Revive Illicit Ads Class Suit
R1 RCM INC: Response to Bid to Dismiss Hillbom Suit Due Oct. 10
RENTGROW INC: 4th Cir. Vacates Class Cert. Order in Fernandez Suit
RIVERSIDE RESORT: Laudonio Sues Over Data Security Failures
RIVERSIDE RESORT: Martin and David Sue Over Private Data Breach
SABER HEALTHCARE: Kuchar Settlement Gets Preliminary Court Okay
SLEEP NUMBER: Faces Evans Suit Over Deceptive Pricing Practices
SUNGHUN & MYOUNGJOO: Lahera Suit Alleges Worker Misclassification
SUPPORTS COORDINATION: Fails to Pay OT Wages, Rosenberger Claims
U.S. BANCORP: Violates ADA, Briand Class Action Suit Alleges
VEEVA SYSTEMS: Liu Suit Remanded to King County Superior Court
WALMART INC: Great Value Brand Not Pure Avocado Oil, Golikov Says
WESTECH SECURITY: Court Narrows Claims in Carrasquillo Lawsuit
WINGED FOOT: Court Allows Plaintiffs to Amend Complaint
WINNEBAGO INDUSTRIES: Rosen Law Probes Potential Securities Claims
WORLD AQUATICS: 9th Cir. Reverses Class Certification Denial
WYNN LAS VEGAS: Court Approves Class Settlement in FLSA Suit
*********
AIG WARRANTYGUARD: Court Grants Bids to Dismiss Shellenberger Suit
------------------------------------------------------------------
Judge James L. Robart of the U.S. District Court for the Western
District of Washington, Seattle, grants the Defendants' motions to
dismiss the lawsuit styled HADASSAH SHELLENBERGER, Plaintiff v. AIG
WARRANTYGUARD, INC., et al., Defendants, Case No. 2:24-cv-00657-JLR
(W.D. Wash.).
Before the Court are Defendant AIG WarrantyGuard, Inc.'s ("AIGWG")
and Defendant Whirlpool Corporation's motions to dismiss Plaintiff
Hadassah Shellenberger's putative class action complaint. Ms.
Shellenberger opposes the motions.
Whirlpool manufactures home appliances under various brand names,
including KitchenAid. Together, Whirlpool and AIGWG "market, sell,
and administer" warranty plans to consumers, who purchase Whirlpool
appliances.
This putative class action concerns Ms. Shellenberger's purchase of
the Defendants' warranty plan (the "Service Plan"), which provided
inferior coverage than she expected for her new KitchenAid
dishwasher.
Around April 2020, Ms. Shellenberger purchased a KitchenAid
dishwasher at Best Buy for $1,084.99, as well as a Geek Squad
protection plan ("GSP Plan") to cover the repair costs of any
potential malfunctions. Beginning around the same time, she began
receiving marketing communications from the Defendants. One of
these communications, which was either mailed or emailed to her,
urged her to protect her investment by purchasing a KitchenAid
Service Plan.
This marketing offer described the Service Plan as providing repair
or replacement benefits for covered malfunctions at no
out-of-pocket expenses to the consumer and paying for 100% of the
required parts and labor for such repairs. The offer used
KitchenAid branding, claimed to provide "KitchenAid certified
technicians using factory certified parts," and gave the option to
select from a variety of term lengths. It also contained a
disclaimer that directed readers to a KitchenAid webpage for
complete terms and conditions. At some point, Ms. Shellenberger
visited the KitchenAid website and viewed promotional language
similar to what she had seen on the mailers, though she does not
remember exactly when she did so.
After learning the Service Plan was cheaper than her GSP Plan, Ms.
Shellenberger called the number listed on the Defendants' marketing
offer and bought a three-year Service Plan over the phone. She
subsequently received a confirmation email with details about her
Service Plan. She alleges the Defendants are both parties to the
Service Plan contract, with Whirlpool acting as "the Service
Contract Administrator," and AIGWG as the "Obligor." She later
canceled her GSP Plan, for which she obtained a refund.
Ms. Shellenberger's dishwasher began malfunctioning soon after
purchase. She contacted Whirlpool and obtained a replacement gasket
under the manufacturer's warranty. This fix did not last, however,
because some time later she began observing similar problems with
the gasket. In September 2022, she submitted a claim under her
Service Plan. She also called Whirlpool, although this time, the
agent informed her that because there were no appointments
available in Whirlpool's network, she could hire an independent
repair company to fix her appliance, pay out-of-pocket fees for the
services, and then seek reimbursement from Whirlpool. The Whirlpool
agent also advised that any third-party repair service must comply
with various conditions before proceeding with a repair, for
example by performing a diagnostic test and sending a repair
estimate to Whirlpool.
Ms. Shellenberger attempted to locate a suitable repair service but
"gave up" after approximately one week. She continued using the
malfunctioning dishwasher until February 2023, when it stopped
working. She submitted another claim to Whirlpool under her Service
Plan, but was informed that, under the terms of her Service
Contract, her appliance would be bought out for $764.36. When she
asked whether a replacement was possible, the Whirlpool agent told
her that she could either accept the Buyout or get nothing. She
used the buyout payment--supplemented with her own funds--to
purchase a new dishwasher. She also purchased a new warranty plan
upon learning that her Service Plan term ended at the time of the
buyout.
Ms. Shellenberger initiated this action on May 10, 2024, claiming
the Defendants' marketing materials deceptively misrepresented and
omitted material terms of the Service Plan contract. She alleges
the Defendants' marketing impresses upon consumers that the Service
Plans are related to, and offer coverage benefits comparable to,
the Whirlpool manufacturer's warranty.
But according to Ms. Shellenberger, the Service Plans offer
"inferior" coverage and allow the Defendants to generate unfair
profits for themselves at the expense of unsuspecting
consumers--particularly through the buyout provision. She asserts
claims against the Defendants for: (1) violation of Washington's
Consumer Protection Act ("CPA"); (2) breach of contract; and (3)
breach of the duty of good faith and fair dealing.
The Defendants each filed a motion to dismiss the complaint,
describing this case as a "copycat lawsuit" based on a similar
putative class action that Ms. Shellenberger's attorney filed last
year in the Central District of California (citing Salas v.
Whirlpool Corp., No. 5:23-CV-01549-AB-KK, 2024 WL 694067 (C.D. Cal.
Jan. 24, 2024)).
The Court stayed discovery in this case pending resolution of the
Defendants' motions to dismiss. Because the Defendants join in each
other's motions, the Court analyzes the motions as one.
As a threshold matter, the Defendants ask the Court to consider
certain documents not attached to the complaint. AIGWG argues the
Court should consider the contents of the webpage
"serviceplans.kitchenaid.com/details" at the time the Complaint was
filed because the webpage has been incorporated by reference into
the Complaint." Because Ms. Shellenberger disputes the authenticity
of the webpage at issue, the Court declines to consider the
document.
In addition, the Defendants each attempt to introduce a copy of Ms.
Shellenberger's GSP Plan, arguing it is extensively referenced
throughout the complaint. But because she disputes the authenticity
of these documents, the Court likewise declines to consider them.
The Defendants first seek dismissal pursuant to Rule 12(b)(1) based
on the absence of subject matter jurisdiction, arguing Ms.
Shellenberger lacks Article III standing. The Court disagrees. The
Court concludes Ms. Shellenberger has Article III standing to
pursue her claims.
The Defendants next seek dismissal pursuant to Rule 12(b)(6),
arguing Ms. Shellenberger fails to state a claim. The Court
concludes dismissal is warranted as to each claim. For a variety of
reasons, the Court concludes that none of the challenged
misrepresentations or omissions is sufficiently pleaded.
Judge Robart notes that the Defendants' marketing materials
expressly directed Ms. Shellenberger to the complete terms and
conditions of a valid contract that she could have reviewed before
freely entering. Judge Robart opines that she cannot ignore readily
available contract terms and then plausibly claim she was deceived
by those terms. Accordingly, the Court concludes that she fails to
plausibly allege causation with respect to the Defendants' alleged
misrepresentations.
Judge Robart also opines, among other things, that many of Ms.
Shellenberger's allegations fall short of Rule 9(b) requirements.
She merely describes the content of the Defendants' marketing
materials without identifying what she actually read, aside from
the pricing and coverage term options. Thus, she fails to specify
which portions of the marketing she found material and what she
relied upon in deciding to buy her Service Plan.
In sum, Judge Robart points out, Ms. Shellenberger fails to allege
a cognizable breach or damages and facts plausibly supporting a
breach of duty. Her breach of contract claim and claim for breach
of the duty of good faith and fair dealing are, therefore,
dismissed.
In light of the liberal policy in favor of granting leave to amend,
the Court dismisses Ms. Shellenberger's claims without prejudice
and grants her leave to file an amended complaint. The Court warns
her that it will not tolerate strategic omission of pertinent facts
that may undermine her claims. Any amended complaint reasserting a
CPA claim must allege with particularity the circumstances of the
fraudulent conduct by providing the most complete, clear picture of
the alleged facts as possible. Failure to comply may warrant a
finding of bad faith and/or sanctions, up to and including
dismissal of her claims with prejudice.
For these reasons, the Court grants the Defendants' motions to
dismiss. Ms. Shellenberger will file her amended complaint, if any,
by no later than Oct. 2, 2024.
A full-text copy of the Court's Order dated Sept. 11, 2024, is
available at https://tinyurl.com/3h3aarba from PacerMonitor.com.
AMAZON.COM INC: Bid for Summary Judgment vs Mahone Partly OK'd
--------------------------------------------------------------
In the class action lawsuit captioned as YASMINE MAHONE and BRANDON
TOLE, v. AMAZON.COM, INC., et al., Case No. 2:22-cv-00594-MJP (W.D.
Wash.), the Hon. Judge Marsha Pechman entered an order granting in
part and denying in part Defendants' motion for summary judgment:
-- Mahone has not identified sufficient evidence to show Amazon
willfully violated USERRA. At most, Mahone has shown that
Amazon
was aware of USERRA at the time of her termination, but not
that
Amazon knowingly violated or recklessly disregarded its
obligations under USERRA.
-- Tole, on the other hand, has produced evidence showing a
dispute
of material fact supporting his theory that Amazon violated
USERRA
by refusing to consider any of his preleave work in his pursuit
of
a promotion and that he has been unfairly denied a promotion as
a
result of taking military leave. The jury must untangle the
disputed evidence and resolve that claim at trial
-- The Plaintiffs Yasmine Mahone and Brandon Tole claim that
Defendants Amazon.com, Inc. and related entities mistreated
them
on account of their military service in violation of the
Uniformed
Services Employment and Reemployment Rights Act of 1994
(USERRA).
-- Mahone asserts that Amazon willfully violated USERRA by
terminating and refusing to reemploy her on account of her
military service. Tole believes Amazon violated USERRA by
failing
to reinstate him with proper seniority and advancement upon
returning from an extended military leave of absence.
Mahone, who is a Private in the Alabama Army National Guard, began
working for Amazon on July 16, 2020, in Bessemer, Alabama.
Amazon.com is engaged in e-commerce, cloud computing, online
advertising, digital streaming, and artificial intelligence.
A copy of the Court's order dated Sept. 25, 2024, is available from
PacerMonitor.com at https://urlcurt.com/u?l=B106Ci at no extra
charge.[CC]
ARDEN CLAIMS: Fails to Secure Personal Info, Gomez Suit Says
------------------------------------------------------------
YARIDIA GOMEZ, on behalf of herself and all others similarly
situated v. ARDEN CLAIMS SERVICE, LLC, Case No. 1:24-cv-06727
(E.D.N.Y., Sept. 24, 2024) is a class action against the Defendant
for its failure to properly secure and safeguard sensitive
information of settlement class members.
The Plaintiff's and Class Members' sensitive personal information
-- which they entrusted to Defendant on the mutual understanding
that Defendant would protect it against disclosure -- was targeted,
compromised and unlawfully accessed due to the Data Breach. The
Defendant collected and maintained certain personally identifiable
information and protected health information of Plaintiff and the
putative Class Members, who received settlement checks from class
action settlements administered by Defendant. The PII compromised
in the Data Breach included Plaintiff's and Class Members' full
names and Social Security numbers, says the suit.
As a result of the alleged Data Breach, Plaintiff and approximately
138,000 Class Members, suffered concrete injuries in fact
including, but not limited to: (i) invasion of privacy; (ii) theft
of their PII; (iii) lost or diminished value of PII; (iv) lost time
and opportunity costs associated with attempting to mitigate the
actual consequences of the Data Breach; (v) lost opportunity costs
associated with attempting to mitigate the actual consequences of
the Data Breach; (vi) experiencing an increase in spam calls,
texts, and/or emails; (vii) statutory damages; (viii) nominal
damages; and (ix) the continued and certainly increased risk to
their PII, which: (a) remains unencrypted and available for
unauthorized third parties to access and abuse; and (b) remains
backed up in Defendant's possession and is subject to further
unauthorized disclosures so long as Defendant fails to undertake
appropriate and adequate measures to protect the PII.
The Defendant is a limited liability company that provides
administrative services for class action settlements, including by
distributing notice and payment to settlement class members.[BN]
The Plaintiff is represented by:
Todd S. Garber, Esq.
FINKELSTEIN, BLANKINSHIP,
FREI-PEARSON & GARBER, LLP
One North Broadway, Suite 900
White Plains, New York 10601
Telephone: (914) 298-3283
E-mail: tgarber@fbfglaw.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
ARROW FINANCIAL: Claims Settlement Hearing Set January 10
---------------------------------------------------------
Pomerantz LLP announces that the United States District Court for
the Northern District of New York has approved the following
announcement of a proposed class action settlement that would
benefit purchasers of securities of Arrow Financial Corporation
(NASDAQ: AROW).
SUMMARY NOTICE OF PENDENCY AND
PROPOSED CLASS ACTION SETTLEMENT
TO: ALL PERSONS AND ENTITIES WHO PURCHASED OR OTHERWISE ACQUIRED
ARROW FINANCIAL CORPORATION SECURITIES BETWEEN AUGUST 6, 2022 AND
MAY 12, 2023, BOTH DATES INCLUSIVE, AND WHO WERE ALLEGEDLY DAMAGED
THEREBY.
YOU ARE HEREBY NOTIFIED, pursuant to an Order of the United States
District Court for the Northern District of New York, that a
hearing will be held on January 10, 2025, at 11:00 a.m., before the
Honorable Anne M. Nardacci, at the United States District Court,
Northern District of New York, Courtroom 6, 445 Broadway, Albany,
New York 12207, for the purpose of determining: (1) whether the
proposed Settlement of the claims in the above-captioned Action for
the sum of $850,000 in cash should be approved by the Court as
fair, reasonable, and adequate; (2) whether the proposed Plan of
Allocation to distribute the Settlement proceeds is fair,
reasonable, and adequate; (3) whether the application of Lead
Counsel for an award of attorneys' fees of no more than 33.4% of
the Settlement Amount plus interest, reimbursement of litigation
expenses of no more than $85,000 plus interest, and awards to
Plaintiffs of no more than $4,000, in aggregate, from the
Settlement Amount should be approved; and (4) whether this Action
should be dismissed with prejudice as set forth in the Stipulation
and Agreement of Settlement dated June 7, 2024 ("Stipulation").
Lead Counsel has also applied for up to $125,000 to pay for
Administrative Costs.
The Court reserves the right to hold the Settlement Hearing
telephonically or by other virtual means. The Court appointed
Pomerantz LLP as Lead Counsel to represent you and the other
Settlement Class Members. However, you have the right to retain
your own counsel and the right to appear at the Settlement Hearing
through counsel of your choosing.
If you purchased or otherwise acquired Arrow Financial Corporation
("Arrow") securities between August 6, 2022 and May 12, 2023, both
dates inclusive, your rights may be affected by this Settlement. As
further described in the Notice of Pendency and Proposed Settlement
of Class Action ("Notice"), you will be bound by any judgment
entered in the Action, whether or not you make a claim, unless you
request exclusion from the Settlement Class. If you have not
received the Notice and the Proof of Claim and Release Form, you
may obtain copies by visiting www.strategicclaims.net/Arrow/ or by
contacting the Claims Administrator at info@strategicclaims.net or
toll-free at (866) 274-4004. If you are a Settlement Class Member,
in order to share in the distribution of the Net Settlement Fund,
you must submit a Proof of Claim and Release Form to the Claims
Administrator in the form and manner detailed in the Notice so that
it is postmarked or submitted electronically no later than January
17, 2025.
If you desire to be excluded from the Settlement Class, you must
submit to the Claims Administrator a request for exclusion so that
it is received no later than December 20, 2024, in the manner and
form explained in the Notice. All members of the Settlement Class
who have not requested exclusion from the Settlement Class will be
bound by any judgment entered in the Action pursuant to the
Stipulation.
Any objection to the Settlement, Plan of Allocation, or Lead
Counsel's request for an award of attorneys' fees and reimbursement
of expenses and awards to Plaintiffs must be in the manner and form
explained in the detailed Notice and received no later than
December 20, 2024, by each of the following:
CLERK OF THE COURT:
United States District Court
Northern District of New York
445 Broadway
Albany, New York 12207
LEAD COUNSEL:
Brenda Szydlo
POMERANTZ LLP
600 Third Ave., 20th Fl.
New York, NY 10016
DEFENSE COUNSEL:
William J. Sushon
O'MELVENY & MYERS LLP
1301 Ave. of the Americas, 17th Fl.
New York, NY 10019
If you have any questions about the Settlement, you may call or
write to Lead Counsel for Plaintiffs:
Brenda Szydlo
POMERANTZ LLP
600 Third Avenue, 20th Floor
New York, NY, 10016
(212) 661-1100
bszydlo@pomlaw.com
PLEASE DO NOT CONTACT THE COURT OR THE CLERK'S OFFICE REGARDING
THIS NOTICE.
Dated: August 26, 2024
BY ORDER OF THE UNITED STATES
DISTRICT COURT FOR THE
NORTHERN DISTRICT OF NEW YORK [GN]
ASHLYNN MARKETING: Court Denies Bid to Dismiss Fraud Class Suit
---------------------------------------------------------------
Wendy Biddle, J.D., writing for VitalLaw, reports that herbal
supplement manufacturer had exclusive knowledge of the
addictiveness of the product.
A manufacturer and distributor of kratom, an herbal supplement that
works on the same opioid receptors of the brain as morphine, moved
to dismiss a putative class action against it for violations of
California's consumer protection laws and fraudulent omission,
breach of implied warranty and unjust enrichment. The district
court in San Diego denied dismissal of a majority of the claims,
finding that the plaintiffs adequately pleaded their fraud-based
claims. The court also found that the statutes of limitations did
not toll until the plaintiffs discovered their addiction to the
product. The court did dismiss the implied warranty and unjust
enrichment claims as time-barred. The court also dismissed the
equitable claims under California's UCL and FAL because the
plaintiff failed to plead that a legal remedy was inadequate, but
dismissed without prejudice so that the plaintiffs could pursue the
claims in state court (J.J. v. Ashlynn Marketing Group, Inc., No.
3:24-cv-00311-GPC-MSB (S.D. Cal. Sept. 20, 2024)).
Plaintiffs bought kratom, which is manufactured and distributed by
Ashlynn Marketing Group, Inc. Kratom is a drug derived from the
kratom plant in southeast Asia and works on the same opioid
receptors in the brain as morphine. It has similar risks of
addition and dependency and has similar withdrawal symptoms. Kratom
has been used in herbal medicine in southeast Asia since the early
19th century.
In the U.S., kratom has gained popularity in the last decade and is
marketed as a coffee substitute, pain reliever, and as a treatment
for opioid withdrawal, depression, and anxiety. Ashlynn Marketing
Group (AMG) states on its website that scientists are conducting
studies to determine whether Kratom causes addition, withdrawal,
and death.
The two named plaintiffs, J.J. and C.D., began purchasing kratom in
2018 and 2020. Both claimed they did not know of the addictiveness
of the product until they tried to stop using it in 2022 and 2021,
respectively. They experienced painful withdrawal symptoms,
including minor psychosis.
The plaintiffs brought a putative class action against AMG on
behalf of three classes, two nationwide classes (one with all
people who purchased Krave Botanicals; and one with people who
purchased Krave Botanicals online) and one California class who
purchased Krave Botanicals. They brought six causes of action:
violations of California's Unfair Competition Law; violations of
California's Consumer Legal Remedies Act; violations of
California's False Advertising Law; breach of implied warranty;
unjust enrichment; and fraudulent omission.
Statute of limitations. AMG argued that the plaintiffs' claims are
time-barred because the claims have statutes of limitations ranging
from two to four years. The plaintiff, J.J. alleged he purchased
the products in 2018 and realized he was addicted to the products
in 2022. Plaintiff C.D. alleged he began purchasing the products in
2020 and realized he became addicted in 2021. AMG argued that the
claims are time barred based on the initial purchase date. AMG also
argued that the discovery rule does not apply.
Although the plaintiffs conceded that the discovery rule does not
apply to the implied warranty and unjust enrichment claims, they
argued that the discovery rule tolled the accruals of the remaining
causes of action. The court agreed with the plaintiffs that the
discovery rule tolled the actions, because from the complaint the
plaintiffs adequately alleged that they could not have made an
earlier discovery of addictiveness. They did not know the product
was addictive when they began purchasing. There were no disclosures
on the packaging and the word-of-mouth disclosures they heard were
of the benefits, with no mention of the product's addictiveness.
The court found that J.J. 's claim accrued in July 2022 and C.D.'s
claim accrued in February 2021. Both plaintiffs' claims therefore
fall within the statute of limitations and are not time barred. The
court dismissed the implied warranty and unjust enrichment claims
as time barred but denied dismissal of the remaining claims.
Rule 9(b). Next, AMG argued that the complaint failed to meet the
heightened pleading standard of Rule 9(b). The court was
unpersuaded by the argument, finding that the complaint adequately
alleged the who, what, how (from the packaging) and the when, and
the where to meet the requirements of Rule 9(b). The plaintiffs
also sufficiently described the content of the omission and where
the information could have been revealed. The court denied
dismissal based on Rule (b).
Fraud claims. AMG argued that the fraud claims should be dismissed
because the plaintiffs failed to sufficiently plead elements of the
fraud, like reliance and duty. The court concluded that the
plaintiffs sufficiently pleaded reliance because they alleged they
would have behaved differently if the omitted addictiveness
information had been disclosed. The plaintiffs also alleged that
AMG received numerous reports of the addictive potential of kratom
and worked closely with growers and distributors who disclosed the
addictive nature of the product to them. The plaintiffs alleged
they looked at the packaging and labels when they purchased, and
there was no information about the product being addictive. The
court found that information to be sufficient to plead reliance.
For the duty element, a defendant has a duty to disclose when
either the defect relates to an unreasonable safety hazard or the
defect is material, "central to the product's function" and the
defendant had exclusive knowledge of material facts not known to
the plaintiff. The plaintiffs sufficiently alleged that kratom's
addictiveness poses an unreasonable safety risk because it works on
the same opioid receptors as morphine and has similar effects like
dependency, withdrawal and addictiveness. They also alleged that
the addiction to kratom can sneak up on the user, making it
particularly insidious. The court agreed that the allegations were
sufficient to show that the product was unreasonably dangerous.
The court also found that the complaint sufficiently showed that
AMG had exclusive knowledge of the addictiveness of the product.
The complaint alleged that reasonable consumers would not expect
that kratom would operate like an opioid, when it was marketed as a
substitute for coffee and a treatment for opioid withdrawal and
more. The complaint adequately alleged that AMG knew of the
addictiveness of kratom through user reports, interactions with
growers and distributors and the item on their website that
scientists are still studying the product to determine whether
abusing the product leads to addiction or death. Taken together the
allegations support an inference that AMG knew or should have known
the product it was selling was addictive.
The court noted that even though the complaint stated that the
addictiveness of the kratom has been well-documented and
established in medical literature, the complaint also noted that
easily accessible information, like advertisements and word of
mouth, was shown to be full of misinformation. Even though such
medical information is publicly available, the court found that the
plaintiffs adequately alleged that the AMG had superior and
exclusive knowledge of the information. The court denied the motion
to dismiss.
Equitable claims. AMG argued that the UCL and FAL claims for
equitable relief should be dismissed because the plaintiffs failed
to allege that legal remedies would be inadequate as required.
Under Sonner v. Premium Nutrition Corp. 971 F.3d 834 (9th Cir.
2020), a federal court sitting in diversity does not have equitable
jurisdiction over equitable state law claims if the plaintiff does
not establish that they lack an adequate remedy at law. The
plaintiffs conceded that the court did not have equitable
jurisdiction over the equitable claims but requested that the court
dismiss the claims without prejudice for refiling in state court.
AMG argued that allowing the plaintiffs to refile in state court
would amount to claims splitting, which is prohibited. The court
disagreed with AMG, finding that the plaintiffs do not appear to be
harassing the defendant with increased litigation. The court noted
that while federal law bars it from considering the merits of state
law claim, the court also lacks the authority to prevent the state
court from doing so. The court therefore granted the motion to
dismiss the UCL and FAL claims without prejudice.
Nationwide class. Lastly, AMG argued that the nationwide class
allegations should be dismissed or stricken. Although the Ninth
Circuit in Mazza v. American Honda Motor Co., 666 F.3d 581 (9th
Cir. 2012) held that each class members' consumer protection claim
should be governed by the consumer protection laws of the
jurisdiction in which the transaction took place, the district
courts split on whether dismissal of a nationwide class is
appropriate at the motion to dismiss stage. The court found that
plaintiffs should be given the opportunity through discovery to
demonstrate that the nationwide classes are viable at the class
certification stage. Both parties will have a better opportunity to
develop their analyses at the class certification stage. The court
denied dismissal and striking of the nationwide class allegations.
The Case is No. 3:24-cv-00311-GPC-MSB.
Judge: Curiel, G.
Attorneys: Christian Schreiber (Olivier & Schreiber LLP) for J.J.
and C.D. Erin Marie Gilmore (Squire Patton Boggs) for Ashlynn
Marketing Group, Inc.
Companies: Ashlynn Marketing Group, Inc.
Cases: Advertising State Unfair Trade Practices California News
[GN]
BANK OF AMERICA: Individual Plaintiffs' Bid to Stay Granted in Part
-------------------------------------------------------------------
The Honorable Gonzalo P. Curiel of the United States District Court
for the Southern District of California granted in part Individual
Plaintiffs' expedited motion to stay their cases pending resolution
of the common issues of law and fact in the multidistrict
litigation case captioned IN RE: BANK OF AMERICA CALIFORNIA
UNEMPLOYMENT BENEFITS LITIGATION, Case No.: 21MD2992-GPC(MSB) (S.D
Calif.).
The Court grants Individual Plaintiffs' motion to stay their
proceedings until resolution of the motion for class certification
and denies without prejudice a stay beyond the ruling on the class
certification order.
This multidistrict litigation arises from several class actions and
a large number of individual actions brought against Defendant Bank
of America, N.A. over its administration of the electronic benefits
payment system for California's Employment Development Department
during the COVID-19 pandemic. EDD, the administrator of
unemployment benefits in California, entered into an exclusive
contract with BANA, to distribute those benefits through
Bank-issued and Bank-administered prepaid debit cards which are
linked to individual Bank depository accounts. The relevant
contract at issue was in effect from August 1, 2016 through July
31, 2021. Per the exclusive contract between EDD and
BANA, the BANA issued benefit payments to individuals found
eligible for unemployment benefits through more than 9 million
Bank-issued and Bank-administered prepaid debit cards. These
pre-paid debit cards were subject to rampant third-party fraud
during the COVID-19 pandemic and tens of millions of dollars have
been stolen from these bank accounts. All Plaintiffs similarly
claim that BANA "failed to safeguard and properly manage benefits
during the pandemic and unlawfully froze or denied access to funds
in recipients' debit card accounts."
On January 14, 2021, Class Plaintiff Jennifer Yick commenced a
purported class action titled Yick v. Bank of America, N.A., No.
3:21-cv-376, in the United States District Court for the Northern
District of California. Eight additional class actions were
subsequently filed and consolidated with Yick on March 29, 2021.
Since the filing of Yick, other class action plaintiffs and
hundreds of individual plaintiffs have filed actions against BANA
for injuries stemming from the same alleged conduct.
On June 4, 2021, the Judicial Panel on Multidistrict Litigation
transferred the Yick class action and individually filed actions to
this Court for consolidated pretrial proceedings and assigned it to
District Judge Larry A. Burns.
Since the lifting of the discovery stay in May 2023, Class
Plaintiffs and BANA have been actively engaged in discovery.
Individual Plaintiffs have also been engaged in discovery
concerning their individual cases but have not been fully privy to
all discovery produced by BANA.
Pursuant to a ruling from Magistrate Judge Berg on February 12,
2024, BANA was allowed to take the depositions of ten Individual
Plaintiffs prior to the filing of the motion for class
certification. On July 11, 2024, BANA served a Notice of Deposition
to the remaining 128 Individual Plaintiffs with depositions to
commence on September 16, 2024 and continuing through September 27,
2024. In response to concerns expressed by Individual Plaintiffs,
on August 9, 2024, BANA served an Amended Notice of Deposition to
the remaining 128 Individual Plaintiffs and offered that each
deposition take place at a central location within the federal
judicial district where each Individual Plaintiff lives. In order
to take the depositions of 128 individuals, the amended notice of
deposition generally schedules
four depositions per day between September 16, 2024 through
November 7, 2024.
In response, on August 13, 2024, Individual Plaintiffs filed the
instant motion to stay their proceedings pending resolution of
common issues of law and fact in the Class Action which will
streamline the litigation, including discovery, because the
individual and class claims substantially overlap.
Individual Plaintiffs argue there is no prejudice to BANA if a
brief stay is granted because it would not have to expend extra
resources deposing 133 Individual Plaintiffs and can focus its
resources on opposing the class certification motion.BANA responds
that it would suffer undue prejudice if the Individual Plaintiffs'
cases are stayed because discovery is nearly complete and it has
already spent nearly $8 million in discovery costs alone and
produced over 277,000 documents, 3,700 of which relate to the
Individual Plaintiffs' claims.
The Court finds in this case, BANA has not identified or provided
any evidence of any harm it will suffer if a stay were granted.
According to the Court, BANA has not articulated any reason why the
Individual Plaintiffs' depositions need to be completed now and
whether this discovery is relevant to resolving any pending motions
before the Court. Further, significant resources on discovery have
been expended but primarily with regards to the Class Plaintiffs
case, not necessarily with the Individual Plaintiffs. Further, BANA
claims Individual Plaintiffs' motion to stay was brought late in
the proceedings. However, the case is still in its early stages.
Additionally, BANA's concerns about delaying discovery due to the
risk of witnesses' memories fading, witnesses relocating or
becoming unavailable, and evidence becoming stale or dissipating
are speculative and no evidence has been provided that such risks
exist. Thus, BANA's alleged hardships do not support a stay, the
Court concludes.
On the other hand, Individual Plaintiffs claim they would suffer
extreme hardship and inequity by having to defend 128 depositions
without having had access to all of their records and without the
Court's ruling on common issues of law and fact. Without a stay,
Individual Plaintiffs argue they will be severely prejudiced in
their attempt to play "catch up" by propounding and responding to
discovery in 133 cases, reviewing hundreds of thousands of
documents, and seeking motions to compel, if necessary, in a short
amount of time.
In contrast, BANA argues the Individual Plaintiffs have been
actively engaged in discovery since June 5, 2023 and have sought
their individual files as well other discovery relating to them.
To the extent the limitation in seeking discovery was self-imposed
and/or based on a misunderstanding of the July 2021 Order,
Individual Plaintiffs have not shown that BANA was at fault. Thus,
the Court finds Individual Plaintiffs' purported hardships do not
support a stay.
Individual Plaintiffs contend that a stay of proceedings pending
resolution of the class action proceedings will promote judicial
economy and efficiency as well as party economy. hey argue the
Court's ruling on class certification and summary judgment will
reduce the number of issues to be determined for the Individual
Plaintiffs' cases either because some will dismiss and join the
class and others, who opt out of the Class, will be streamlined
because the individual and class claims substantially overlap. n
response, BANA maintains that it would be more efficient to simply
complete the depositions now rather than pause discovery and
restart it likely in 2026.
The Court concludes that judicial economy and the orderly course of
justice support a stay until a ruling on the motion for class
certification but not until a ruling on any summary judgment
motions. A ruling on class certification will likely narrow the
number of Individual Plaintiffs' cases, the Court states. The
parties do not dispute that the Class Plaintiffs and Individual
Plaintiffs' claims substantially overlap and if the Court certifies
a Class, certain Individual Plaintiffs may dismiss their individual
suits and join the Class. If the Court does not certify any Class,
then the short, limited stay will be lifted. While BANA complains
of the exorbitant amount it has already expended on discovery, a
stay, at this time, will protect it from any unnecessary and
wasteful discovery.
A full-text copy of the Court's Order dated September 17, 2024, is
available at https://urlcurt.com/u?l=ZuXFmw
BIOGEN INC: Faces Suit Over Alleged Tecfidera Monopoly
------------------------------------------------------
MAYOR AND CITY COUNCIL OF BALTIMORE, on behalf of itself and all
other similarly situated, Plaintiff v. BIOGEN, INC., Defendant,
Case No. 1:24-cv-08700 (N.D. Ill., September 20, 2024) seeks
damages and other relief arising out of defendant Biogen, Inc.'s
unlawful scheme to impair competition from generic versions of its
brand-name prescription drug Tecfidera.
The Plaintiff alleges that the Defendant Biogen resorted to using
unlawful, anticompetitive agreements to block the distribution of
generic Tecfidera while it scrambled to switch the market. Biogen
allegedly entered into unlawful restraints of trade with each of
the nation's three largest pharmacy benefit managers--Caremark Rx,
LLC, OptumRx, Inc., and Express Scripts, Inc. Biogen paid these
companies to manipulate the placement of generic Tecfidera on their
formularies--the lists that identify which drugs are covered and
establish the applicable patient copayments and coinsurance.
Moreover, together with its co-conspirators, Biogen has unlawfully
(1) restrained, suppressed, and eliminated competition in the
market for Vumerity, Tecfidera, and their generic equivalents; (2)
maintained monopoly and supracompetitive prices for those drug
products; and (3) prevented Plaintiff from purchasing the drugs in
a competitive market, robbing them of billions of dollars in the
aggregate.
Headquartered in Cambridge, MA, Biogen, Inc. manufactures and sells
branded prescription pharmaceuticals, including Tecfidera and
Vumerity for treatment of multiple sclerosis. [BN]
The Plaintiff is represented by:
Carol V. Gilden, Esq.
COHEN MILSTEIN SELLERS & TOLL PLLC
190 South LaSalle Street, Suite 1705
Chicago, IL 60603
Telephone: (312) 357-0370
E-mail: cgilden@cohenmilstein.com
- and -
Sharon K. Robertson, Esq.
COHEN MILSTEIN SELLERS & TOLL PLLC
88 Pine Street, 14th Floor
New York, NY 10005
Telephone: (212) 838-7797
E-mail: srobertson@cohenmilstein.com
BOWL AMERICA: Agrees to Settle Breach Class Suit for $2.175-MM
--------------------------------------------------------------
Kilgore News Herald reports that a proposed $2,175,000 Settlement
has been reached in a class action lawsuit titled, Fine, et al., v.
Bowl America, Inc., et al., 1:21-cv-01967-SAG (D. Md.). The lawsuit
alleges that Cheryl A. Dragoo, Merle Fabian, Nancy E. Hull, Gloria
M. Bragg and Allan L. Sher (deceased) (the "Defendants") breached
fiduciary duties owed to Bowl America stockholders in connection
with the Merger and/or aided and abetted such alleged breaches of
duty. Defendants deny all allegations of wrongdoing and liability.
Who is Included? The Settlement Class is defined as all holders of
Bowl America Class A common stock who, as of May 27, 2021: (1) were
entitled to vote on the Merger; and (2) continued to hold such
stock until the closing of the Merger on August 18, 2021. The class
excludes the Defendants, their family members, heirs, and any
person, firm, trust, corporation, or other entity related to or
affiliated with any of the Defendants.
What does the Settlement Provide? If you are a member of the Class,
you may be eligible to receive a distribution from the Settlement
proceeds. Specifically, the Net Settlement Fund will be distributed
on a pro rata basis to those eligible Class Members who held Bowl
America shares at the time such shares were converted into the
right to receive the Merger Consideration in connection with the
Closing and are not excluded from the Class. Class Members do not
need to submit a claim form or take any other action in order to be
entitled to receive a distribution from the Settlement. Rather,
distribution from the Settlement to Eligible Stockholders will be
paid directly.
Your Other Options. If you want to keep any right you may have to
sue or continue to sue Defendants and the other Released Defendant
Parties on your own concerning the Released Plaintiffs' Claims,
then you must take steps to remove yourself from the Class. This is
called excluding yourself or "opting out." If you submit a valid
exclusion request, you will not be legally bound by the Settlement
or anything that happens in the Action, and you will not receive
any payment from the Net Settlement Fund. The deadline to exclude
yourself is November 28, 2024. If you do not exclude yourself, you
may object to the object to the proposed Settlement, the proposed
Plan of Allocation, or Class Counsel's request for a Fee and
Expense Award by November 28, 2024.
The Court has scheduled a Settlement Hearing in this case on
December 12, 2024 at 9:00 a.m., before The Honorable Stephanie A.
Gallagher, either in person at the Court, or remotely by telephone
or videoconference to, among other things, determine whether the
proposed Settlement should be approved as fair, reasonable, and
adequate to the Class and in the best interests of the Class. If
there are timely objections, the Court will consider them and will
listen to people who have properly requested to speak at the
hearing. You or your own lawyer may attend and ask to appear at the
hearing, but you are not required to do so. The hearing could
reschedule to a different date or time, so please check the
Settlement website for those details.
More Information. Complete information about your rights and
options, as well as important documents (including the Settlement
Agreement) are available at
www.BowlAmericaSecuritiesLitigation.com. You may also call
toll-free 1-888-874-4173. [GN]
BOYLAND AUTO: Plaintiff's Bid to Proceed in Forma Pauperis Denied
-----------------------------------------------------------------
In the case captioned as WILLIAM LOUIS ARMSTRONG, Plaintiff, v.
BOYLAND AUTO BGMC, LLC, GENERAL MOTORS, KUNES BUICK GMC, AUTOMOTIVE
EXPERTS LLC, NATIONAL BUSINESS BROKERS,
DORIAN BOYLAND, and KAUFMAN DOLOWICH, Defendants, Case No.
24-CV-765-JPS (E.D. Wis.), Judge J.P. Stadtmuelle of the United
States District Court for the Eastern District of Wisconsin:
(1) grants Armstrong's motion for leave to proceed in forma
pauperis;
(2) grants Armstrong's motion for leave to proceed in forma
pauperis;
(3) denies without prejudice Armstrong's request for
appointment of counsel;
(4) denies without prejudice Armstrong's request for
designation of interim counsel;
(5) denies without prejudice Armstrong's request for
designation of a guardian ad litem or next friend;
(6) denies Armstrong's request for an order mandating service
of process;
(7) grants in part Armstrong's renewed motion for a stay of
proceedings; and
(8) orders that on or before November 22, 2024, Armstrong
shall either (i) obtain counsel and have counsel enter a notice of
appearance in this matter on behalf of the putative class, or (ii)
file an amended complaint setting forth Plaintiff's claims solely
on behalf of himself rather than on behalf of a putative class. No
further extension of time will be considered or granted. Failure to
timely undertake either of these options will result in dismissal
of this case without prejudice and without further notice.
In June 2024, Plaintiff William Louis Armstrong, proceeding pro se,
sued Defendants Boyland Auto BGMC, LLC, General Motors, Kunes Buick
GMC, Automotive Experts LLC, National Business Brokers, Dorian
Boyland, and Kaufman Dolowich for violations of both state and
federal law. He also moved for leave to proceed in forma pauperis.
In July 2024, the Court entered an order noting that it would defer
addressing Plaintiff's motion for leave to proceed in forma
pauperis and the process of screening his complaint pending
resolution of a threshold issue: Plaintiff's characterization of
his case as a class action and his request for class
certification.
The Court cannot entertain Plaintiff's request for class
certification at this juncture," the Court wrote, "because
Plaintiff cannot sue on behalf of a class while
proceeding pro se." Plaintiff could "either obtain legal
representation to attempt to pursue class certification, or he
could choose to proceed pro se on behalf of only himself." The
Court instructed Plaintiff to inform the Court as to which option
he intended to pursue.
Plaintiff filed a response to the Court's order in which he
confirmed that he intended to sue on behalf of a putative class. He
also wrote that he "intended to obtain counsel," but that he was
"not able to proceed" with the case at this juncture because
"outside factors have significantly limited the resources that he
has been able to devote to preparing" for the case. He requested an
indefinite stay of proceedings or, alternatively, that a guardian
ad litem or "interim counsel" be appointed for the putative class.
The Court entered another order, noting that it was unable to grant
Plaintiff the relief he sought in his letter. The Court declined to
"stay this case indefinitely until Plaintiff is ready to proceed
with it," and it further noted that it could not, at that point and
on the record before it, grant Plaintiff's request for appointment
of counsel. In evaluating a request for appointment of counsel, the
Court wrote, it must consider both whether "the indigent plaintiff
has made a reasonable attempt to obtain counsel or has been
effectively precluded from doing so" and whether "given the
difficulty of the case, the plaintiff appears competent to litigate
it himself." "Even assuming arguendo that Plaintiff meets the
indigency requirement," the Court further wrote, "he has not
demonstrated that he has 'made a reasonable attempt to obtain
counsel or has been effectively precluded from doing so.'"
Now before the Court is Plaintiff's response to the Court's most
recent order. In it, he renews his request for appointment of
counsel, or, in the alternative, renews his request for a stay, and
makes various other requests.
A copy of the Court's Order dated September 23, 2024, is available
at https://urlcurt.com/u?l=6JUjbs
BRITISH AIRWAYS: High Court Rejects "Representative Action" Claim
-----------------------------------------------------------------
CMS Law-Now reports that the High Court has rejected a
"Representative Action" claim brought against British Airways and
easyJet, which was seeking an estimated GBP319 million against
easyJet alone on behalf of persons entitled to compensation for
cancelled or delayed flights. This decision, of Smyth v BA and
easyJet [2024] EWHC 2173 (KB), is the latest judgment in the
important area of developing law: the Representative Action
procedure under CPR 19.8.
The High Court rejected the claim both on discretionary grounds,
where it expressed scepticism of the motives of the funder and the
claimants' representative, and because the claim did not meet the
"same interest" test set out in CPR 19.8. An important feature was
that both airlines had portals which allowed class members to seek
compensation direct without having any sum deducted, whereas this
claim sought to deduct 24% of all recoveries which, for claims
against just one of the two airlines, would have netted an
estimated GBP70 million.
Background
Representative Actions
A Representative Action can be used to determine issues on a
class-wide basis. There are two requirements for the court to
permit the use of this procedure: first, the representative and
class members must have the "same interest"; second, the court must
exercise its discretion in favour of allowing the claim to proceed
as a Representative Action.
Like the Collective Proceedings Order mechanism introduced in 2015
for claims in the Competition Appeal Tribunal, Representative
Actions can be brought on an "opt-out" basis -- which enables class
members to be aggregated without electing to join the claim. This
is an immensely powerful tool, which facilitates claims worth GBP
hundreds of millions or even billions which would simply not be
brought on that scale should class members have to choose to join a
claim (under an opt-in mechanism). The Collective Proceedings Order
mechanism is only available for competition claims, whereas the
Representative Action is available for all causes of action. Recent
development of this mechanism has focussed on the distinction
between, on the one hand, Representative Actions that will
determine liability with claimants subsequently opting-in to a
further stage to seek damages (the so-called "bifurcated approach")
and, on the other, Representative Actions that are framed to seek a
class wide award of damages on an opt-out basis. The Smyth v BA and
easyJet claim sought the latter.
The Regulation
Article 7(1) of EU Regulation 261/2004 provides the right for air
passengers to claim compensation in certain circumstances of a
delayed or cancelled flight. The Regulation sets out a tariff-based
system for the level of compensation. This is not a strict
liability regime where delay or cancellation automatically entitles
passengers to compensation. For example, no compensation is payable
if the delay or cancellation is caused by "extraordinary
circumstances". Furthermore, airlines are not required to
automatically issue compensation under the Regulation: rather,
passengers must proactively apply.
The claim was rejected
Master Davison rejected the claim both on discretionary grounds and
because it did not meet the "same interest" test.
Discretionary grounds
Master Davison identified a number of factors that militated
against exercising the court exercising its discretion to permit
the claim to continue. Those factors included:
1. The relationship between the proposed representative of the
claimants, Ms Smyth, and the funder, Mr Armour. Ms Smyth was an
employee of Mr Armour, and the court found that he was "the person
who was really running the litigation."
2. The proposed representative had not, the court determined,
been transparent about her funding arrangements and motivations. As
to her motives, the court ruled "I do not accept that her
motivation lies in a desire to secure redress from consumers".
3. Ms Smyth had secured an order on an ex parte basis that she
would be entitled to 24% of any compensation recovered by the
represented class. On of the airline defendants estimated that if
the aggregate damages against that airline were (hypothetically)
GBP319 million, this figure would equate to approximately GBP70
million for that defendant alone. However, members of the class
were able to claim direct -- and at no cost through claims systems
maintained by the airlines, failing which -- for a small court fee
-- through the Small Claims process of the Country Court, which has
special procedures for these kinds of claims.
4. The court was not persuaded that this action assisted with
access to justice given that the airlines' compensation scheme was
easily accessed and free to use, and the qualities of the County
Court alternative route which was available.
Exercising its discretion against permitting the claim to proceed,
Master Davison concluded, "I would not allow the claim to go
forward as a representative action because the dominant motive for
it lies in the financial interest of its backers, principally Mr
Armour, and not in the interests of consumers."
The same interest test
The court observed that Lloyd v Google had "relaxed the "same
interest" requirement" and that the Supreme Court had stressed the
need for a distinction between cases where there are conflicting
interests between class members and cases where there are "merely
divergent interests". Whilst the court accepted that there is a
distinction between divergent interests and a conflict of
interests, Master Davison observed that as "a question of fact and
degree . . . there is a point at which interests diverge so widely
that the class members cannot be said to have the "same interest".
This case trespasses a long way beyond that point. . . ".
The proposed representative defined the class as persons who had
presented themselves for check-in for any of the flights listed on
a schedule appended to a witness statement, save for persons on an
what was defined as an Excluded Journey. Excluded Journeys included
those where the passenger was travelling free of charge.
Importantly -- the proposed claimant representative did not intend
that the claim would proceed on behalf of all of the class members,
rather that the class would as it proceeded be reduced in a series
of steps which Master Davison likened to a "game of Russian dolls".
Those steps included pushing the burden of analysis onto the
defendants, requiring them to review the schedule of flights and
identify delayed flights and if they intended to raise an
"extraordinary circumstance" defence for any such passengers, and
whether a claim had already been made via their portal, among other
matters. Information from the defendants would then be used to
divide the class into cohorts. Those "where there was
uncontroversially a defence" would be abandoned. By the end of this
process there would be a residual class "in respect of which the
defendants have no defence".
Master Davison said that the "same interest" assessment "is made at
the outset of the claim" and, citing Emerald Supplies Ltd v British
Airways Plc [2010] EWCA Civ 1284, "at all stage of the
proceedings". The proposed representative's approach to refining
the class composition by removing cohorts demonstrated that the
class members did not have the same interest. Master Davison opined
"To accept that successive amendments to the class will be required
is to admit that at the outset the claim is not properly
constituted as a representative action."
Master Davison also ruled that the fact that there were no defences
in law to the final rump class meant that this cohort did not share
the same interest. Rather, it "would be just a collection of
represented parties with undisputed or indisputable claims. It
would be a class that was empty of actual issues."
The defendants also questioned the suitability of the
representative receiving "money which is not hers and to make
deductions from that money", i.e., the proposal that damages or
settlement sums due to class members being paid to the
representative and her deducting 24%. Master Davison observed that
it might have been better if this part of the claim had not been
addressed ex parte and in isolation in another division of the
court, but rather "in the broader context of the applications
before me".
Comment
Although this claim was rejected in part for failing to meet the
"same interest" test, on the discretionary element it is unusually
critical of the motivations of the proposed representative. Master
Davison raised questions on the suitability of the representative's
payment being determined in isolation and in a separate hearing.
This is a sensible conclusion; there are unanswered questions on
how payments to the representative and funders should be managed in
CPR 19.8 actions, and those issues should be addressed
transparently and in the broader context of the claim.
The court was unpersuaded that this claim would improve access to
justice for class members. This was particularly so given that the
defendants had a navigable compensation system that was cost and
risk free to users. Quite correctly, the court did not
simplistically conclude that members of a class will necessarily
benefit from litigation brought in their name.[GN]
BUDDI US: Class Action Settlement Gets Final Court Nod
------------------------------------------------------
Judge Mark C. Scarsi of the United States District Court for the
Central District of California granted final approval of class
action settlement in the case captioned as S.C., individually and
on behalf of all others similarly situated, Plaintiff, v. BUDDI US
LLC, BUDDI LTD., MONITORING PARTNERS LIMITED, and DOES 1-10,
inclusive Defendants, BUDDI US LLC and BUDDI LTD,
Cross-Complainants, v. LIBRE BY NEXUS, INC., NEXUS SERVICES, INC.,
and ROES 1-10, inclusive, Cross-Defendants, Case No.
8:20-cv-01370-MCS-KES (C.D. Calif.).
The Court has jurisdiction over the subject matter of the S.C.
Action, Plaintiff, the Class Members, and Defendants.
On April 1, 2024, the Court preliminarily approved the settlement
as to the Class conditionally certified in connection with the
settlement of this action,
consisting of:
The "Federal Privacy Class": "All individuals whose GPS tracking
data is included in the two spreadsheets produced in discovery by
Defendant entitled 'CA contacted no contact_1' and 'GA and TN Nexus
Removals (3)_0' – in workbook 'Tennessee.'"
The California CIPA subclass: "All individuals whose GPS tracking
data is included in the spreadsheet produced in discovery by
Defendant entitled 'CA contacted no contact_1.'"
Defendants properly and timely served notice of the Parties'
Settlement Agreement and Release as required under the Class Action
Fairness Act, 28 U.S.C. Sec. 1715, upon all persons entitled to
such notice.
The Settlement Agreement and Release was arrived at as a result of
arms' length negotiations conducted in good faith by experienced
attorneys familiar with the legal and factual issues of this case
and who have diligently investigated and prosecuted this matter and
engaged in substantial exchanges of information and informal
discovery, and was facilitated and overseen by the Honorable Andrew
Guilford (Ret.) at a mediation with the Parties.
The Settlement Agreement and Release is fair, reasonable, adequate,
and in the best interests of the Class in light of the complexity,
expense, and duration of litigation, as well as the risk involved
in establishing liability and damages and in maintaining the S.C.
Action through trial and appeal.
The settlement consideration provided by the Settlement Agreement
and Release constitutes fair value given in exchange for the
release of the Released Claims against the Released Parties. The
Court finds that the consideration provided to members of the Class
is reasonable, considering the facts and circumstances of the
claims and affirmative defenses asserted in the S.C. Action, and
the potential risks and likelihood of success of alternatively
pursuing trial on the merits.
The Settlement Agreement and Release is finally approved as fair,
reasonable, adequate, just, and in compliance with all applicable
requirements of the United States Constitution (including the Due
Process Clause) and all other applicable laws, and in the best
interest of the Class. Accordingly, the Court directs the Parties
and their counsel to implement and consummate the Settlement
Agreement and Release in accordance with its terms and conditions.
The Court finding that there were no opt outs from the Settlement,
each Settlement Class Member has released and is permanently barred
from filing or prosecuting any of the Settlement Class Members'
Released Claims against the
Defendant.
The Releasing Parties hereby absolutely, unconditionally, and
irrevocably release and forever discharge the Released Parties from
the Released Claims, as set forth in the Settlement Agreement and
Release.
The following monetary relief is hereby ordered pursuant to the
terms of the Settlement Agreement and Release:
Within thirty (30) days after the Effective Date, provided that
Defendants have been provided with a Form W-9 and payment
instructions, Defendants shall tender Five Hundred Thousand and
00/100 Dollars ($500,000.00) to the Claims Administrator for
deposit into a common settlement fund to be held by the Claims
Administrator and used to pay/reimburse the following amounts
pursuant to the specified terms of the Settlement Agreement and
Release:
(i) the costs and expense of notice and administration, as set
forth in section 8.4;
(ii) any Service Award to the Class Representatives, as set forth
in section 7;
(iii) Attorneys' fees and costs, as set forth in section 6; and
(iv) a distribution of the remainder to Class Members based on
their number of Settlement Credits, depending on whether they are
merely Class Members, or also are California Subclass Members, as
set forth in section 5. In no event shall Defendants be required to
pay more than $500,000.00 into the Settlement Fund
The Court awards $5,000.00 to Plaintiff S.C. to be paid from the
Settlement Fund as a Service Award for her role as a Class
Representative.
The Court awards to Class Counsel, as attorneys' fees and costs,
$125,000.00, which is equal to 25% of the Settlement Fund, and the
reimbursement of litigation expenses in the sum of $11,955.96.
The Court awards $17,597.43 to the Settlement Administrator as
reimbursement for fees and costs incurred in the notice process,
disbursement, and other matters relating to the administration of
the settlement.
A full-text copy of the Court's Order dated September 17, 2024, is
available at https://urlcurt.com/u?l=Z35IBQ
CABINETWORKS MICHIGAN: Fails to Pay OT Wages, Fuller Suit Alleges
-----------------------------------------------------------------
JERRY FULLER, on behalf of himself and those similarly situated v.
CABINETWORKS MICHIGAN, LLC, THE CABINETWORKS GROUP, CABINETWORKS
GROUP, INC., Case No. e 4:24-cv-01618-MWB (M.D. Pa., Sept. 24,
2024) alleges that the Defendants have misclassified their
production supervisors as exempt and failed and refused to pay them
overtime pay as required by the Fair Labor Standards Act, despite
knowing that these production supervisors work far more than forty
hours per week.
The Defendants fail and refuse to pay their hourly production
workers overtime for all hours worked in a workweek in excess of 40
hours, particularly those who work during the lunch period, the
Plaintiff says.
The Defendants are the privately held kitchen cabinet maker in the
United States, employing approximately 7,000 employees around the
country.[BN]
The Plaintiff is represented by:
Edward C. Sweeney, Esq.
M. Frances Ryan, Esq.
WUSINICH, SWEENEY & RYAN, LLC
102 Pickering Way, Suite 403
Exton, PA 19341
Telephone: (610) 594-1600
E-mail: esweeney@wspalaw.com
mfrancesryan@wusinichsweeney.com
CALIFORNIA PHYSICIANS: Murillo Sues Over Breach of Private Info
---------------------------------------------------------------
ALEXANDRA MURILLO, on behalf of herself and her minor child "W.A."
and her minor child "H.A.," Plaintiff, v. California Physicians'
Service d/b/a Blue Shield of California, Defendant, Case No.
3:24-cv-06633 (N.D. Cal., September 20, 2024) is a class action
brought on behalf of current and former Blue Shield subscribers
whose personally identifying information and personal health
information was stolen from a contractor Blue Shield hired and
supplied with the PII and PHI.
At least as early as April 2024, the contractor hired by Defendant,
Young Consulting, LLC, was breached and had subscriber data stolen
in a ransomware attack. However, no subscriber was informed of the
breach until late August 2024. Moreover, Defendant did not send any
notices to their subscribers who had been impacted by the data
breach and instead waited for Young Consulting to release the
information. Moreover, Defendant's failure to notify subscribers
that they had been impacted by this data breach for at least two
months after Defendant became aware of the breach harmed Plaintiff
and made it more difficult for Plaintiff to take swift action to
respond to the breach. Accordingly, the Plaintiff alleges claims of
negligence, breach of implied contract, unjust enrichment, and for
violations of California's Unfair Competition Law and
Confidentiality of Medical Information Act.
Blue Shield is a California health insurance company headquartered
in Oakland, CA. [BN]
The Plaintiff is represented by:
Robert C. Schubert, Esq.
Amber L. Schubert, Esq.
Daniel L.M. Pulgram, Esq.
SCHUBERT JONCKHEER & KOLBE LLP
2001 Union St, Ste 200
San Francisco, CA 94123
Telephone: (415) 788-4220
Facsimile: (415) 788-0161
E-mail: rschubert@sjk.law
aschubert@sjk.law
dpulgram@sjk.law
CHARTER COMMUNICATIONS: Faces Lampos Wage-and-Hour Suit in Ohio
---------------------------------------------------------------
GEORGE LAMPOS, on behalf of himself and all others similarly
situated, Plaintiff v. CHARTER COMMUNICATIONS, Defendant, Case No.
5:24-cv-01610 (N.D. Ohio, September 20, 2024) arises from
Defendant's practices and policies of not paying its non-exempt
employees for all hours worked, including overtime compensation in
violation of the Fair Labor Standards Act and the Ohio Minimum Fair
Wage Standards Act.
The Defendant employed Plaintiff as a customer service agent at its
Canal Place call center in Akron, Ohio. Allegedly, the Defendant
failed to pay Plaintiff and other similarly situated inbound sales
representatives for starting and logging into Defendant's computer
systems, numerous software applications, and phone systems, during
which they performed work that managers and/or other agents and/or
representatives observed. The amount of time Plaintiff and other
similarly situated employees spent on their required and unpaid
work before clocking in amounted to approximately 10 to 20 minutes
when Defendant's computer systems were working properly, or longer
when Defendant's computer systems were slow or not working.
However, the Defendant failed to make, keep and preserve records of
the unpaid work, says the suit.
Charter Communications is a telecommunications company
headquartered in Stamford, CT. [BN]
The Plaintiff is represented by:
Robert B. Kapitan, Esq.
Anthony J. Lazzaro, Esq.
THE LAZZARO LAW FIRM, LLC
The Heritage Building, Suite 250
34555 Chagrin Boulevard
Moreland Hills, OH 44022
Telephone: (216) 696-5000
Facsimile: (216) 696-7005
E-mail: robert@lazzarolawfirm.com
matthew@lazzarolawfirm.com
anthony@lazzarolawfirm.com
COLONIAL LIFE: Wins Summary Judgment in Seawell, et al. Suit
------------------------------------------------------------
In the case captioned as HENRY R. SEAWELL, III, et al., Plaintiffs,
v. COLONIAL LIFE & ACCIDENT INS. CO., Defendant, CIV. ACT. NO.
1:22-cv-278-TFM-MU (S.D. Ala.), Judge Terry F. Moorer of the United
States District Court for the Southern District of Alabama granted
the Colonial's motion for summary judgment.
Plaintiff Henry R. Seawell, III and Kathryn D. Seawell are citizens
of Baldwin County, Alabama. Colonial Life & Accident Insurance
Company is a corporation organized and existing under the law of
the State of South Carolina with its principal place of business in
South Carolina.
Plaintiffs filed this breach of contract action on July 15, 2022,
on behalf of themselves and other similarly situated policyholders,
seeking money damages and declaratory and injunctive relief
concerning the meaning of the pertinent provision in their
supplemental cancer insurance policy. On March 15, 2024, Plaintiffs
filed a motion to certify class. Defendants filed a response in
opposition to Plaintiffs' motion to certify class. May 17, 2024,
Defendant filed the instant motion for summary judgment. On July
11, 2024, the Court held oral argument on both the instant motion
for summary judgment and the motion to certify class.
Plaintiffs purchased a supplemental cancer policy from Colonial
beginning in 2002. The Policy provides benefits for oral
chemotherapy drugs.
Mrs. Seawell was diagnosed with metastatic breast cancer in 2016.
As part of her cancer treatment she takes an oral chemotherapy drug
called Ibrance, which she has filled every 28 days. Each time she
has her prescription filled, she submits a claim to Colonial.
Colonial has reimbursed the Plaintiffs $400 each time Mrs. Seawell
fills her prescription. Colonial has been paying Plaintiffs
benefits under the policy since 2016.
The insurance policy provides that "oral chemotherapy will be
limited to the cost of the prescription for the day you have the
prescription filled, up to the amount shown in the Schedule Page."
The Schedule Page provides: "the amount charged up to $400/day;
oral chemotherapy limited to $1200/month."
The parties disagree as to the interpretation of the oral
chemotherapy benefit in the Policy, and the proper interpretation
determines whether Defendant breached the contract. Defendant
argues that the policy means what it says, and that Plaintiffs'
interpretation of the policy is not supported by its language.
Plaintiffs counter that Mrs. Seawell is "entitled to multiple daily
benefits in a multi-day fill, up to the monthly maximum" as opposed
to one daily benefit upon filling her prescription. Plaintiffs
further argue that the policy is ambiguous, and that under Alabama
law, the Court should apply the rule of contra proferentem and
construe the ambiguity against the drafter. In support of their
argument, Plaintiffs point to the fact that Colonial did not define
the term "prescription" in their policy and claim that therefore
the policy cannot unambiguously mean what Colonial says it mean.
Judge Moorer says, "While the Court sympathizes with Mrs. Seawell's
cancer battle, it can find no ambiguity in the policy language. A
plain reading of the policy shows it means what it says -- that the
oral chemotherapy benefit is limited to the cost of the
prescription for the day you have the prescription filled. Despite
Plaintiffs' attempt to find ambiguity, it is clear from reading
'prescription' in the context of the sentence that a benefit is
paid on the day the prescription is filled and Plaintiffs' proposed
interpretation is not one that a person of ordinary intelligence
would reasonably give it."
He concludes, "Because the contract is unambiguous, the Court does
not reach the application of the principle of contra proferentum.
It is clear from the language of the contract that that a benefit
is paid for the day the prescription is filled, not for each day
the prescription is taken. Thus, Defendant's motion for summary
judgment is due to be granted."
Class Certification
In light of Martinez-Mendoza v. Champion Int'l Corp., 340 F.3d
1200, 1215-16 (11th Cir. 2003), Plaintiffs are ordered to submit
supplemental briefing to the Court on or before October 21, 2024,
as to whether they intend to pursue certification and to address
whether an actual case or controversy exists between the parties.
Defendant is ordered to respond to Plaintiff's supplemental
briefing on or before October 28, 2024
A copy of the Court's Memorandum Opinion and Order dated September
23, 2024, is available at https://urlcurt.com/u?l=8ayhMp
CORRECTCARE INTEGRATED: Class Settlement Gets Final Court Okay
--------------------------------------------------------------
In the consolidated case In re CorrectCare Data Breach Litigation,
Civil Action No. 5: 22-319-DCR (E.D. Ky.), Chief Judge Danny C.
Reeves of the United States District Court for the Eastern District
of Kentucky granted the plaintiffs' motion for final approval of
class action settlement.
Defendant CorrectCare Integrated Health, LLC is a third-party
administrator that facilitates access to medical providers and
manages medical claims payment for certain correctional facilities.
It discovered in July 2022 that two of its file directories had
been exposed on the public internet, thus disclosing the personal
identifiable information and personal health information of
approximately 600,000 incarcerated individuals -- the plaintiffs in
this class action.
In December 2022, the lead plaintiff, Virginia Hiley, sued
CorrectCare based on the data breach alleging claims of negligence,
negligence per se, breach of implied contract,
breach of fiduciary duty, invasion of privacy, and unjust
enrichment. A Consolidated Amended Complaint was filed in March
2023. This pleading consolidated the original action
with similar actions pending in this Court and added various claims
under state consumer privacy laws. The parties reached a settlement
following successful mediation. The plaintiffs then filed an
unopposed motion for preliminary approval of the class action
settlement.
The following class was preliminarily certified: "All individuals
whose Personal Information was compromised as a result of the Data
Incident."
The settlement provided for a non-reversionary $6,490,000 common
fund with payments to the members of the proposed settlement class,
release of claims, class-notice procedures, settlement
administration, attorneys' fees, costs, and service awards. After
reviewing the agreement at length, the Court denied the motion,
without prejudice, because it was unclear whether sufficient funds
would remain to pay class members seeking an alternative cash
payment after class members seeking out-of-pocket damages were
paid. Three weeks later, the plaintiffs filed a renewed motion for
settlement approval, noting that the settlement agreement had been
revised and limited total out-of-pocket losses to one-half of the
settlement fund, ensuring that sufficient money would remain to pay
class members seeking an alternative cash payment.
The Amended Complaint alleges that the data breach involved the
potential unauthorized access of PII of approximately 600,000
individuals who were housed at various correctional institutions in
four states (California, Georgia, Louisiana, and South Carolina).
On May 20, 2024, CorrectCare provided the settlement administrator
with data files containing 635,321 records for identified
settlement class members.
The plaintiffs have filed a separate motion seeking approval of
attorneys' fees, expenses, and service awards. They seek class
counsel attorneys' fees in the amount of one-third of the
settlement fund ($2,163,333.33), reimbursement of litigation
expenses ($12,313.92), and an award to each of the five class
representatives (i.e., a service award) of $2,500.00.
The plaintiffs seek approval of a $2,500 service award for each of
the five named plaintiffs.
A final approval hearing was held on September 16, 2024.
The Court concludes that the settlement is fair, reasonable, and
adequate. Accordingly, the objections received will be overruled,
the settlement agreement will be approved, and the proposed
incentive rewards and attorneys' fees and costs will be approved.
A full-text copy of the Court's Memorandum Opinion and and Order
dated September 17, 2024, is available at
https://urlcurt.com/u?l=F4Dh9o
DAZN US LLC: S.D. New York Directs McNair-Robinson to Amend Suit
----------------------------------------------------------------
In the lawsuit styled KYLE MCNAIR-ROBINSON, Plaintiff v. DAZN US
LLC, Defendant, Case No. 1:24-cv-06816-AS (S.D.N.Y.), Judge Arun
Subramanian of the U.S. District Court for the Southern District of
New York orders the Plaintiff to amend his complaint.
Plaintiff Kyle McNair-Robinson brings this action against Defendant
DAZN US LLC, invoking the Court's subject matter jurisdiction under
the Class Action Fairness Act, which requires at least one member
of the putative class to be a citizen of a state different from any
defendant. The Plaintiff alleges that jurisdiction exists here
because he is a citizen of California and DAZN US LLC is
incorporated in Delaware and has its principal place of business in
New York.
Judge Subramanian notes that it is well established that a limited
liability company ("LLC") is deemed to be a citizen of each state
of which its members are citizens, citing Handelsman v. Bedford
Vill. Assocs. L.P., 213 F.3d 48, 51-52 (2d Cir. 2000). Thus, a
complaint premised upon diversity of citizenship must allege the
citizenship of natural persons, who are members of an LLC and the
place of incorporation and principal place of business of any
corporate entities that are members of the LLC (including the
citizenship of any members of the LLC that are themselves LLCs).
Accordingly, the Court directs the Plaintiff to amend his complaint
to allege the citizenship of each constituent person or entity
comprising the LLC. If the Plaintiff is unable to amend the
complaint to truthfully allege complete diversity of citizenship,
then the complaint will be dismissed for lack of subject matter
jurisdiction without further notice to either party.
A full-text copy of the Court's Order dated Sept. 11, 2024, is
available at https://tinyurl.com/mrxy9s8n from PacerMonitor.com.
DUKE CAPITAL: Court Narrows Claims in Castillo, et al. Lawsuit
--------------------------------------------------------------
In the case captioned as SARAH CASTILLO, VIKTORIA SVENSSON, and
ROBIN BEAN, Plaintiffs, v. DUKE CAPITAL, LLC, Defendant (D. Ut.),
Judge Jill N. Parrish of the United States District Court for the
District of Utah granted in part and denied in part Duke Capital's
motion for summary judgment.
In 2019, Duke Capital filed lawsuits in Utah state court against
Sarah Castillo, Viktoria Svensson, and Robin Bean to recover debts
it had purchased from prior creditors. In these state-court
actions, Duke Capital asserted that it owned the debts, had the
same right to collect the accounts as was previously held by the
original creditors, and was accordingly entitled to judgment.
Ms. Castillo and Ms. Bean failed to answer the complaints filed
against them in the state-court actions, and Duke Capital obtained
default judgments against each. Ms. Svensson filed an answer on her
own behalf but failed to respond to Duke Capital's motion for
summary judgment filed thereafter. As a result, default judgment
was also entered against her. Duke Capital subsequently sought to
enforce the default judgments through garnishment proceedings. At
all relevant times during the state-court litigation, Duke Capital
was not registered with the Utah Division of Corporations and
Commercial Code and did not have a bond as described in the Utah
Collection Agency Act, which was in effect at all times relevant to
this suit. Plaintiffs initiated this action as a putative
class-action suit in March of 2020 in a Utah state district court.
Duke Capital removed the action to this court, and Plaintiffs filed
the amended, now-operative complaint. Plaintiffs assert five causes
of action:
(1) Violation of the Fair Debt Collection Practices Act, 15
U.S.C. Sec. 1692 et seq.;
(2) Violation of the Utah Consumer Sales Protection Act, UTAH C
ODE ANN. Sec. 13-11-1 et seq.;
(3) A request for declaratory judgment declaring that Duke
Capital lacked standing to obtain any judgment in the state courts
and that the default judgments on the debts were therefore void and
unenforceable;
(4) Intrusion upon seclusion; and
(5) Unjust enrichment.
In their second claim for relief, Plaintiffs allege that Duke
Capital acted deceptively and unconscionably by failing to register
with the appropriate state agency or post a bond as required by the
UCAA, thus violating the Utah Consumer Sales Protection Act. Duke
Capital moves for summary judgment, arguing that it is entitled to
summary judgment for four reasons:
(1) The UCAA's licensing requirements did not apply to it;
(2) all of Plaintiffs' claims are barred by the doctrine of
claim preclusion;
(3) all of Plaintiffs' claims are barred by the doctrine of
issue preclusion; and
(4) UCAA licensure violations (as Plaintiffs allege in their
amended complaint), by themselves, cannot support a claim under the
Utah Consumer Sales Protection Act.
Plaintiffs opposed Duke Capital's motion on its merits. They also
moved to amend their complaint to "remove all parts of their claims
which could be interpreted as a collateral attack on the prior
state court judgments." Duke Capital opposed Plaintiff's motion to
amend on grounds of futility.
Duke Capital's motion for summary judgment is granted in part and
denied in part, the Court holds.
Judge Parrish explains, "The court is satisfied that Plaintiffs'
claims here are not barred by claim preclusion on account of 'the
reasonable expectations of the parties.' While Plaintiffs should
have understood that the state-court actions foreclosed future
challenges to the validity of the debt, they could not have
reasonably expected that statutory consumer-rights claims regarding
injuries stemming from the process of collecting those debts would
be precluded by the state-court actions. Pragmatically, a consumer
need not expect that claims related to damages arising from the
conduct of collection agencies -- including he initiation of a
lawsuit -- be raised in defense against the collection of the
underlying debt. As a result, the court finds it unnecessary to
explore the other doctrinal issues raised by Plaintiffs, including
whether they must have had actual knowledge of the facts necessary
to support their claim at the time of the state-court actions."
Judge Parrish concludes that the Plaintiffs' state-law claims fail,
as they neither plead nor dispute facts sufficient to show that
Duke Capital engaged in proscribed debt-collection activities that
might support a claim under the Utah Consumer Sales Protection Act
or the common-law claims alleged. Duke Capital is therefore
entitled to summary judgment on these claims.
Plaintiffs' motion to amend their complaint is granted in part and
denied in part, the Court further holds. Judge Parrish says the
Plaintiffs may amend their complaint to remove all parts of their
FDCPA claim or pleading that could be interpreted as a collateral
attack on the state-court judgments. However, because amendment of
the pleading related to the state-law claims would be futile,
Plaintiffs are denied leave to amend those portions of the
complaint.
A copy of the Court's Memorandum Decision and Order dated September
23, 2024, is available at https://urlcurt.com/u?l=iXYWiE
DUPONT DE NEMOURS: Black Employees Allege Hostile Work Environment
------------------------------------------------------------------
Natalie Faas, writing for WGRZ, reports that six ex-employees have
filed a class action complaint against chemical company DuPont
claiming they were treated unfairly and worked in a hostile work
environment.
The men, all of whom are Black claim in the complaint, "DuPont
subjects their black employees to disparate treatment in
discipline, promotion, and termination". They are represented by
Derek Smith Law Group, Managing Attorney Alex Cabeceiras said,
"From nooses on toolboxes to the n-word repeatedly graffitied on
the wall to other symbols of hate being hung around DuPont."
The complaint also alleges that Black employees were not treated
the same as white employees when it came to employment conditions,
promotion opportunities, and discipline.
"Hand selecting, hand picking white laborers for managerial
positions therefore excluding black employees from ever reaching
that managerial level that they deserve," Cabeceiras said.
One ex-employee named on the complaint is John Stover. Stover
worked for DuPont for 27 years before his termination in 2023. He
says he was required to take a managerial test four separate times,
failing each one despite it being a "personality test," Stover
said. In the complaint, he said it specifically asked for the
takers' race. Stover believes he was targeted for speaking out
about the treatment he and other Black employees were receiving.
Stover said, "Because of me and Ryan stepping up and talking about
these issues, him being on the union board, me being a rep for 15
years we were targeted, we were targeted for our voices, and at
some point, we were terminated,".
Ryan Parish worked for DuPont for 25 years and is also a part of
the complaint. The complaint alleges that he was hit in the head
with a piece of cardboard by a supervisor, unlike his white
co-workers. The complaint says he was also told he could not apply
for a supervisory position due to his lack of work experience in
one particular area of the company. It alleges that a white
employee who had the same work experience as Parish was promoted to
that supervisor position. Parish said, "We have addressed this with
HR, or our management, and tried to rectify these issues. It's
actually unfortunate that we have to use the law to get fairness."
A spokesperson for DuPont issued this statement in response to 2 On
Your Side's request for comment:
"We have not been served in this matter and as such cannot comment
on the allegations. Respect for people is a core value at DuPont.
We cultivate diversity, equity, and inclusion in all aspects of our
company and foster a workplace environment where all colleagues are
valued and can thrive." [GN]
EXPRESS SERVICES: Sabo Sues Over Data Security Failures
-------------------------------------------------------
KURTIS SABO, on behalf of himself and on behalf of all other
similarly situated individuals, Plaintiff v. EXPRESS SERVICES,
INC., Defendant, Case No. 5:24-cv-00974-J (W.D. Okla., September
20, 2024) arises from Defendant's negligent failure to protect and
safeguard Plaintiff's and the Class's highly sensitive personally
identifiable information.
On September 13, 2024, the Defendant filed a notice of data breach
with the Attorney General of Texas after discovering that an
unauthorized actor gained access to two company email accounts on
June 21, 2024. In this notice, the Defendant confirmed that during
the data breach an unauthorized actor accessed and copied sensitive
information. Moreover, Defendant failed to provide timely notice to
data breach victims. Accordingly, the Plaintiff now asserts claims
for negligence, negligence per se, breach of implied contract,
unjust enrichment, and for declaratory and injunctive relief.
Headquartered in Oklahoma City, OK, Express Services , Inc. is a
staffing company that has more than 850 franchise locations in the
U.S., Canada, South Africa, Australia, and New Zealand. [BN]
The Plaintiff is represented by:
William B. Federman, Esq.
Kennedy M. Brian, Esq.
FEDERMAN & SHERWOOD
10205 N. Pennsylvania Ave.
Oklahoma City, OK 73120
Telephone: (405) 235-1560
Facsimile: (405) 239-2112
E-mail: wbf@federmanlaw.com
kpb@federmanlaw.com
- and -
Gary M. Klinger, Esq.
MILBERG COLEMAN BRYSON PHILLIPS GROSSMAN LLC
227 W. Monroe Street, Suite 2100
Chicago, IL 60606
Telephone: (866) 252-0878
E-mail: gklinger@milberg.com
FIRST SOURCE: Bid to Amend Pleading in Sardo Class Suit Due Oct. 11
-------------------------------------------------------------------
In the class action lawsuit captioned as Sardo, v. First Source
Federal Credit Union, Case No. 5:23-cv-00875-BKS-TWD (N.D.N.Y.),
the Hon. Judge Therese Wiley Dancks entered an uniform pretrial
scheduling order that:
-- Any motion to join any person as a party to this action shall
be
made on or before Nov. 1, 2024.
-- Any motion to amend any pleading in this action shall be made
on
or before Oct. 11, 2024.
-- The parties are directed to file a status report on or before
Jan.
10, 2025.
-- Initial Written Discovery Demands must be served by Nov. 11,
2024.
-- All discovery in this matter is to be completed on or before
May
1, 2025.
First Source offers personal & business accounts, loans, credit
cards, financial education and more.
A copy of the Court's order dated Sept. 25, 2024, is available from
PacerMonitor.com at https://urlcurt.com/u?l=TwWjmd at no extra
charge.[CC]
FORD MOTOR: Glancy Files Expanded Class Period for Securities Suit
------------------------------------------------------------------
Glancy Prongay & Murray LLP ("GPM"), announces that it has filed a
class action lawsuit in the United States District Court for the
Eastern District of Michigan, captioned Sklodowski v. Ford Motor
Company, et al., Case No. 24-cv-12492, on behalf of persons and
entities that purchased or otherwise acquired Ford Motor Company
("Ford" or the "Company") securities between October 28, 2021 and
July 24, 2024, inclusive (the "Class Period"). Plaintiff pursues
claims under Sections 10(b) and 20(a) of the Securities Exchange
Act of 1934 (the "Exchange Act").
Investors are hereby notified that they have until October 7, 2024
to move the Court to serve as lead plaintiff in this action.
If you suffered a loss on your Ford investments or would like to
inquire about potentially pursuing claims to recover your loss
under the federal securities laws, you can submit your contact
information at www.glancylaw.com/cases/Ford-Motor-Company-1/. You
can also contact Charles H. Linehan, of GPM at 310-201-9150,
Toll-Free at 888-773-9224, or via email at
shareholders@glancylaw.com or visit our website at
www.glancylaw.com to learn more about your rights.
On July 24, 2024, after the market closed, Ford announced second
quarter 2024 financial results, revealing that the Company's
"[p]rofitability was affected by an increase in warranty reserves"
and "higher warranty costs." As a result, the Company also revised
its outlook for full year earnings for its electric vehicle segment
to "reflect[] higher warranty costs than originally planned."
Analysts and journalists, including The Associated Press and The
Washington Post, reported that, in the second quarter, warranty and
recall costs totaled $2.3 billion, $800 million more than the first
quarter and $700 million more than a year prior.
On this news, the Company's share price fell $2.51, or 18.36%, to
close at $11.16 per share on July 25, 2024, on unusually heavy
trading volume.
The complaint filed in this class action alleges that throughout
the Class Period, Defendants made materially false and/or
misleading statements, as well as failed to disclose material
adverse facts about the Company's business, operations, and
prospects. Specifically, Defendants failed to disclose to
investors: (1) that the Company had deficiencies in its quality
assurance of vehicle models; (2) that, as a result, the Company was
experiencing higher warranty costs; (3) that the Company's warranty
reserves did not accurately reflect the quality issues in vehicles
sold; (4) that, as a result, the Company's profitability was
reasonably likely to suffer; and (5) that, as a result of the
foregoing, Defendants' positive statements about the Company's
business, operations, and prospects were materially misleading
and/or lacked a reasonable basis.
If you purchased or otherwise acquired Ford securities during the
Class Period, you may move the Court no later than October 7, 2024
to ask the Court to appoint you as lead plaintiff. To be a member
of the Class you need not take any action at this time; you may
retain counsel of your choice or take no action and remain an
absent member of the Class. If you wish to learn more about this
action, or if you have any questions concerning this announcement
or your rights or interests with respect to these matters, please
contact Charles Linehan, Esquire, of GPM, 1925 Century Park East,
Suite 2100, Los Angeles California 90067 at 310-201-9150, Toll-Free
at 888-773-9224, by email to shareholders@glancylaw.com, or visit
our website at www.glancylaw.com. If you inquire by email please
include your mailing address, telephone number and number of shares
purchased.
This press release may be considered Attorney Advertising in some
jurisdictions under the applicable law and ethical rules.
Contacts
Charles H. Linehan, Esq.
Glancy Prongay & Murray LLP
1925 Century Park East, Suite 2100
Los Angeles, CA 90067
Telephone: (310) 201-9150
(888) 773-9224
www.glancylaw.com
shareholders@glancylaw.com [GN]
GEICO: Loses Bid to Dismiss JCM, et al. Amended Complaint
---------------------------------------------------------
In the case captioned as JCM INSURANCE SERVICES, INC., et al.,
Plaintiffs, v. GOVERNMENT EMPLOYEES INSURANCE COMPANY, et al.,
Defendants, CASE NO. 1:23-cv-1801 (N.D. Ohio), Judge David A. Ruiz
of the United States District Court for the Northern District of
Ohio denied the defendants' motion to dismiss the amended complaint
filed by JCM and James Moyer.
Plaintiff JCM is an Ohio corporation and Plaintiff Moyer is the
sole owner of JCM.
On August 11, 2023, JCM and Moyer filed a Complaint against GEICO
and other defendants in the Cuyahoga County Court of Common Pleas,
Case No. CV-23-983829. On September 15, 2023, Defendant GEICO
removed this action to the Northern District of Ohio with the
express consent of the other named Defendant, Geico Insurance
Agency, LLC.
On October 13, 2023, Plaintiffs filed their First Amended
Complaint, which reasserted the same three causes of action as in
their original complaint: (1) declaratory relief that Plaintiffs
are "entitled to payments or renewal or service commissions based
on renewals" under a 2020 GEICO Field Representative (2020 GFR)
agreement; (2) breach of contract, namely the 2020 GFR agreement;
and (3) unjust enrichment.
It is alleged that in 2007, Defendants "first contracted with
Plaintiffs to sell insurance" on Defendants' behalf. In 2012,
Defendants and JCM entered into a contract titled a GEICO Field
Representative agreement, which Moyer signed on or around January
15, 2012. It is alleged that Section 10 of the 2012 GFR agreement
contained termination provisions, including the statement that "GFR
shall not be entitled to any payments or renewal or service
commissions based on renewals occurring subsequent to the
termination date of this Agreement."
It is also alleged that in December of 2020, the Defendants sent
Plaintiffs a revised GFR agreement (2020 GFR), that Defendants
required Plaintiffs to sign the Agreement, that Defendants did not
allow Plaintiffs to negotiate any of the terms of the 2020 GFR
agreement, and that on or about December 3, 2020, Moyer signed the
2020 GFR agreement.
Plaintiffs maintain that the 2020 GFR agreement made a number of
changes to the previous arrangements between the parties, namely
that the 2020 GFR removed the provision providing that Plaintiff
would not be entitled to any payments or renewal or service
commissions based on renewals occurring subsequent to the
termination date of the Agreement.
Defendants have moved to dismiss the First Amended Complaint for
failure to state a
claim.
Defendants' motion to dismiss argues that Plaintiffs' breach of
contract claim in Count Two fails under Maryland law, as a matter
of law, because the contract does not impose the obligation that
Plaintiffs claim Defendants breached.
Specifically, it is asserted that Plaintiffs' claim -- that
Defendants breached the 2020 GFR agreement by failing to pay
compensation for renewals that occurred after termination of the
agreement -- is barred by the clear and unambiguous terms of the
agreement itself. Defendants deny that said agreement imposes any
such obligation.
The Court declines to dismiss a breach of contract claim that is
based on Defendants' own interpretation of the relevant provisions,
an interpretation that is not compelled by the plain language of
the contract. Plaintiffs have alleged that Defendants breached the
2020 GFR agreement, while alleging they have performed their duties
under the contract. Judge Ruiz says, "Generally, nothing more is
required at this stage of the litigation. Therefore, Defendants'
motion to dismiss the breach of contract claim is hereby denied."
Defendants assert that Plaintiffs' unjust enrichment claim must be
dismissed because a binding agreement controls the parties'
relationship. Because Plaintiffs' complaint specifically alleges
the existence of an agreement that ostensibly covers the same
subject, Defendants argue that the unjust enrichment claim must be
dismissed.
Plaintiff points out that it is entitled to plead in the
alternative under Federal Rule of Civil Procedure 8(d)(2).
The Court disagrees that the Amended Complaint has not alleged
facts that could rise to bad faith. Reading the Amended Complaint
as a whole, it is certainly alleged that Defendants changed their
procedures on multiple occasions to include steps that would
effectively deprive Plaintiffs from receiving commissions, the
Court finds.
Therefore, Defendants' motion to dismiss the unjust enrichment
claim in Count Three is denied.
Defendants' motion to dismiss the complaint asserts that
Plaintiffs' claim for declaratory relief in Count One "fails for
the same reasons that the unjust enrichment and breach of contract
claims fail."
Defendants contend that a claim for declaratory relief fails as a
matter of law if the underlying violations also fail as a matter of
law.
Because Defendants' motion to dismiss Count One is predicated on
the assumed success of their challenges to the Counts Two and
Three, which the Court has denied, the motion to dismiss Count One
is denied.
A copy of the Court's Memorandum Opinion and Order dated September
23, 2024, is available at
https://urlcurt.com/u?l=iPMhxs
GEICO: Loses Bid to Transfer Venue of JCM, et al. Suit
------------------------------------------------------
In the case captioned as JCM INSURANCE SERV., INC., et al.,
Plaintiffs, v. GOVERNMENT EMPLOYEES INSURANCE CO., et al.,
Defendants, CASE NO. 1:23-cv-1801 (N.D. Ohio), Judge David A. Ruiz
of the United States District Court for the Northern District of
Ohio denied the defendants' motion to transfer venue.
On August 11, 2023, Plaintiffs JCM Insurance Services and James
Moyer filed a Complaint against GEICO and other defendants in the
Cuyahoga County Court of Common Pleas, Case No. CV-23-983829. The
Complaint alleged that 'on or about December 3, 2020, Mr. Moyer
signed the 2020 [GEICO Field Representative] GFR Agreement." Count
One seeks declaratory relief concerning the entitlement to
compensation for policy renewals under a 2020 GFR agreement; Count
Two alleges breach of contract -- namely the 2020 GFR agreement:
and Count Three alleges unjust enrichment alleging Plaintiffs
"confer[ed] a benefit upon [defendants] and [they] knowingly
accepted the benefits conferred upon them when Plaintiffs sold
Defendants' insurance products without any compensation, serviced
Defendants' customers without any compensation, and provided
business to Defendants without any compensation."
On September 15, 2023, Defendant GEICO removed this action to the
Northern District of Ohio with the express consent of the other
named Defendant, Geico Insurance Agency, LLC. On the same date,
Defendants filed a motion to transfer venue to the United States
District Court for the Southern District of Ohio, arguing that one
of the Plaintiffs herein, James Moyer, already filed a purported
class action claim against GEICO therein in Case No. 2:23-cv-578.
Defendants' motion to transfer was made pursuant to 28 U.S.C. Sec.
1404(a) and the "first-to-file" doctrine.
On October 13, 2023, Plaintiffs filed their First Amended
Complaint, which repeated the same three causes of action;
Plaintiffs also filed a brief opposing the motion to transfer
venue.
On December 18, 2023, Plaintiffs filed a Notice indicating that on
December 1, 2023, the Southern District of Ohio had dismissed
Plaintiffs' complaint in Case No. 2:23-cv-578. Plaintiffs asserts
that the first-to-file doctrine does not apply when the first
matter is no longer pending. Accordingly, Plaintiffs contend that
because their ERISA complaint is no longer pending in the Southern
District of Ohio, Defendants' first-to-file argument is now moot
and transfer is unwarranted. Defendants have not responded to this
mootness argument.
Judge Ruiz says, "Defendant has not responded and, therefore, has
not drawn the Court's attention to any authority suggesting that a
transfer should still occur."
"In addition, as Defendants have not responded, there is no
suggestion that the Southern District of Ohio's dismissal order
would have a res judicata impact on any of the causes of action
raised before this Court."
A copy of the Court's Memorandum Opinion and Order dated September
23, 2024, is available at https://urlcurt.com/u?l=8ZdGkq
GENERAL MOTORS: Court Grants Summary Judgment in White Suit
-----------------------------------------------------------
In the case captioned as ROY WHITE, individually and on behalf of
all others similarly situated, Plaintiff v. GENERAL MOTORS LLC,
Defendant, Civil Action No. 1:21-cv-00410-CNS-MEH (D. Colo.),
Judge Charlotte N. Sweeney of the United States District Court for
the District of Colorado granted the motion for summary judgment
filed by GM on the plaintiff's remaining claims.
Plaintiff White filed a Class Action Complaint against GM in
February 2021, alleging that GM's Generation IV Vortec 5300 Engines
have an "inherent . . . excessive oil consumption problem," which
Plaintiff calls the "Oil Consumption Defect. Plaintiff alleges
that the primary cause of the Oil Consumption Defect is the
allegedly defective piston rings that GM uses in the Gen IV LC9
Engines. Plaintiff also argues that GM knew of the Oil Consumption
Defect as early as 2008 and concealed it from consumers. Plaintiff
argues that the defect poses risk of damage to the Gen IV LC9
Engines which, in turn, poses serious safety risks to drivers.
Plaintiff purchased a Class Vehicle -- specifically a 2011 GMC
Sierra equipped with a "Generation IV LC9 Vortec 5300 engine" -- in
2012.
On February 29, 2024, the Court issued its Federal Rule of Evidence
702 order concerning Plaintiff's technical expert, Dr. Werner Dahm.
GM argued that his opinions are not based on sufficient facts or
data because he did not test, inspect, examine, or physically
handle any Class Vehicle, Gen IV LC9 Engines, or Gen IV LC9 Engine
components. For those reasons, GM argued that his opinions are
unreliable. The Court agreed and ruled that Dr. Dahm could not
testify that defective piston rings are the root cause of the
alleged oil consumption defect, and that the oil consumption defect
is present in all Class Vehicles.
GM advances two general arguments in its summary judgment motion.
First, GM argues that Plaintiff's claims are time-barred by
Colorado's three-year statute of limitations. Second, because the
Court excluded Dr. Dahm's root cause opinions, GM argues that
Plaintiff cannot prove a required element (causation) of his
remaining breach of implied warranty claim.
Plaintiff argues in response that GM fraudulently concealed the
alleged Oil Consumption Defect, and therefore, his claims were
tolled.
Because there is a genuine fact dispute over whether GM
fraudulently concealed the alleged Oil Consumption Defect, the
Court declines to grant summary judgment on statute of limitation
grounds.
GM argues that Plaintiff cannot prove the existence of the Oil
Consumption Defect or establish that the alleged defect caused the
Plaintiff's alleged damages absent expert testimony. Plaintiff
appears to take two approaches to oppose GM's argument. He first
argues that causation may be inferred if he provides the jury with
evidence that would make the causation inference reasonable. He
then argues that his claim will not require the jury to answer any
technical questions thus making expert testimony unnecessary.
According to the Court, without expert testimony to prove that the
alleged Oil Consumption Defect caused engine issues in the
Generation IV LC9 engine, Plaintiff cannot satisfy an element of
his breach of implied warranty claim. Summary judgment is thus
warranted, the Court concludes.
A full-text copy of the Court's Order dated September 17, 2024, is
available at https://urlcurt.com/u?l=huTG2x
GOAUTO INSURANCE: Court Dismisses Williams Suit w/ Prejudice
------------------------------------------------------------
In the class action lawsuit captioned as KIMBERLY WILLIAMS, ET AL.,
V. GOAUTO INSURANCE COMPANY, ET AL., Case No. 3:21-cv-00092-BAJ-SDJ
(M.D. La.), the Hon. Judge Brian Jackson entered an order:
-- granting the Defendants' motion for summary judgment; and
-- denying the Plaintiffs' motion for partial summary judgment on
the
Deficiencies in GoAuto's Cancellation Procedures.
The Plaintiffs' claims against Defendants will be dismissed with
prejudice.
The Court finds that GoAuto complies with the statute when its
system marks the policies as cancelled at 12:01 a.m. on the day
after the grace period ends.
In sum, the Court finds that GoAuto s cancellation procedure
complies with the statute because the request for cancellation is
delivered to GoAuto by a "private carrier," and the request is
"received" by GoAuto. Additionally, because under the statute the
cancellation will be effective at 12:01 a.m. on the day after the
grace period ends, it is irrelevant that GoAuto's system marks the
policies as cancelled before the notices of cancellation are
received.
The Plaintiffs Kimberly Williams, Nicholas Jenkins, and Felita
Wright challenge whether Defendant GoAuto Insurance Company's
procedure for cancelling policies complies with Louisiana Revised
Statute section 9:3550, which governs the cancellation due to
non-payment of financed automobile insurance policies.
The Plaintiffs Williams and Wright are former GoAuto insureds whose
policies were cancelled for non-payment.
Goauto operates as an insurance company.
A copy of the Court's ruling and order dated Sept. 25, 2024, is
available from PacerMonitor.com at https://urlcurt.com/u?l=vN79VD
at no extra charge.[CC]
GOOGLE LLC: Bid for Summary Judgment in Frasco Granted in Part
---------------------------------------------------------------
In the case captioned as ERICA FRASCO, et al., Plaintiffs, v. FLO
HEALTH, INC., et al., Defendants, Case No. 21-cv-00757-JD (N.D.
Calif.), Judge James Donato of the United States District Court for
the Northern District of California granted in part Google LLC's
motion for summary judgment.
In this putative class action, named plaintiffs Erica Frasco, Sarah
Wellman, Justine Pietrzyk, Jennifer Chen, Tesha Gamino, Leah
Ridgway, Autumn Meigs, and Madeline Kiss sued Flo Health, Inc. and
Google LLC, among others, over Flo's use of Google's analytics
services in connection with the Flo Period & Ovulation Tracker app
for women . Plaintiffs alleged a panoply of federal- and state-law
privacy claims and claims of unfair competition under California
law, against Google. After the close of fact discovery, Google
moved for summary judgment. Plaintiffs timely opposed.
Plaintiffs' claims are premised on the allegation that Google
violated their privacy rights by obtaining and storing, without
plaintiffs' knowledge or consent, sensitive personal information
from the Flo App via the Google software developer kit.
The Court finds there are genuine disputes of material fact bearing
on whether plaintiffs have suffered an injury in fact from Google
having collected their private health information.
Counts Nine, Ten, and Fourteen of the operative complaint allege
that Google violated the California Unfair Competition Law, Cal.
Bus. & Prof. Code Sec. 17200 et seq.; aided and abetted Flo's
violation of the UCL; and violated the California Comprehensive
Computer Data Access and Fraud Act, Cal. Penal Code Sec. 502.
Google says that plaintiffs lack statutory standing under the UCL
and CDAFA and so these claims should be dismissed.
Summary judgment is granted in Google's favor on the UCL and
UCL-based aiding-and-abetting claims because plaintiffs abandoned
the defense of their UCL claims, the Court holds. It is denied as
to the CDAFA claim because Google did not carry its burden for
summary judgement, the Court concludes.
Summary judgment is granted in favor of Google on the claim that it
aided and abettedFlo's intrusion upon plaintiffs' seclusion.
The Court further holds summary judgment is denied on plaintiffs'
claims under the Federal Wiretap Act, 18 U.S.C. Sec. 2511, and the
California Invasion of Privacy Act, Cal. Pen. Code Sec. 630 et seq.
Judge Donato says, "Consequently, Google might be liable for aiding
and abetting by providing the SDK to Flo only if there were
evidence that Google had actual knowledge of Flo's deceptive
disclosure practices with respect to plaintiffs' private health
information. The record presented to the Court is devoid of such
facts. Plaintiffs did not identify 'with reasonable particularity'
a non-speculative basis in the record from which a jury could
conclude that Google had the requisite knowledge."
A copy of the Court's Order dated September 23, 2024, is available
at https://urlcurt.com/u?l=vNJYFc
HANMI FINANCIAL: Class Action Settlement Gets Final Court Okay
--------------------------------------------------------------
In the case captioned as KILLYOUNG OH, Plaintiff, v. HANMI
FINANCIAL CORPORATION, et al., Defendants, Case No.
2:20-cv-02844-FLA (JCx) (C.D. Calif.), Judge Fernando L.
Aenlle-Rocha of the United States District Court for the Central
District of California granted Plaintiff's Motion for Final
Approval of Settlement and Plan of Allocation, and Final
Certification of Settlement Class.
On September 6, 2024, the court held a hearing regarding the Motion
to determine: (1) whether the terms and conditions of the
Stipulation of Settlement dated June 23, 2023 are fair, reasonable,
and adequate for the settlement of all claims asserted by the
Settlement Class against Defendants (as defined in the
Stipulation), including the release of the Released Claims against
the Released Parties, and should be approved; (2) whether judgment
should be entered dismissing this Action with prejudice; (3)
whether to approve the proposed Plan of Allocation as a fair and
reasonable method to allocate the Net Settlement Fund among
Settlement Class Members; (4) whether and in what amount to award
Lead Counsel fees and reimbursement of expenses; and (5) whether
and in what amount to approve an award to the Plaintiff.
The court, having considered the Motion and the information
submitted at the hearing, finds, orders, and adjudges as follows:
1. The court finds the prerequisites for a class action under Fed.
R. Civ. P. 23(a) and (b)(3) have been satisfied in that: (a) the
number of Settlement Class Members is so numerous that joinder of
all members thereof is impracticable; (b) there are questions of
law and fact common to the Settlement Class; (c) Plaintiff's claims
are typical of the claims of the Settlement Class they seek to
represent; (d) Plaintiff fairly and adequately represents the
interests of the Settlement Class; (e) questions of law and fact
common to the members of the Settlement Class predominate over any
questions affecting only individual
members of the Settlement Class; and (f) a class action is superior
to other available methods for the fair and efficient adjudication
of this Action. The Settlement Class is being certified for
settlement purposes only.
2. The court finally certifies this action as a class action for
purposes of the Settlement, pursuant to Rule 23(a) and (b)(3), on
behalf of all Persons who purchased publicly traded Hanmi Financial
Corporation common stock during the period from August 9, 2018 and
April 30, 2020, both dates inclusive, except that excluded from the
Settlement Class are: (i) Defendants; (ii) current and former
officers, employees, consultants, and directors of Hanmi; (iii)
siblings, parents, children, spouses, and household members of any
person excluded under (i) and (ii); (iv) any entities affiliated
with, controlled by, or more than 5% owned by, any person excluded
under (i) through (iii); and (v) the legal representatives, heirs,
successors, or assigns of any person excluded under (i) through
(iv). Also excluded from the Settlement Class are those persons or
entities who do not have compensatory losses. Pursuant to Rule 23,
Plaintiff is certified as the class representative on behalf of the
Settlement Class and Lead Counsel, previously selected by Plaintiff
and appointed by the court, are hereby appointed as Class Counsel
for the Settlement Class.
3. In accordance with the court's Preliminary Approval Order, the
court finds the form and method of notifying the Settlement Class
of the Settlement and its terms and conditions: (1) met the
requirements of due process, Rule 23, and Sec. 21D(a)(7) of the
Exchange Act, 15 U.S.C. Sec. 78u-4(a)(7), as amended by the Private
Securities Litigation Reform Act of 1995; (2) constituted the best
notice practicable under the circumstances; and (3) constituted due
and sufficient notice of these proceedings and the matters set
forth herein, including the Settlement and Plan of Allocation, to
all persons and entities entitled to such
notice. No Settlement Class Member is relieved from the terms and
conditions of the Settlement, including the releases provided for
in the Stipulation, based upon the contention or proof that such
Settlement Class Member failed to receive actual or adequate
notice. A full opportunity has been offered to the Settlement Class
Members to object to the proposed Settlement and to participate in
the hearing thereon. Thus, it is determined that all Settlement
Class Members are bound by this Final Judgment.
4. The Settlement is approved as fair, reasonable, and adequate,
and in the best interests of the Settlement Class. This court
further finds that the Settlement set forth in the Stipulation is
the result of good faith, arm's-length negotiations between
experienced counsel representing the interests of the Class
Representative, Settlement Class Members, and Defendants. The
Parties are directed to consummate the Settlement in accordance
with the terms and provisions of the Stipulation.
5. The court finds that the proposed Plan of Allocation is a fair
and reasonable method to allocate the Net Settlement Fund among
Settlement Class Members, and Class Counsel and the Claims
Administrator are directed to administer the Plan of Allocation in
accordance with its terms and the terms of the Stipulation.
A full-text copy of the Court's Judgment and Order dated September
17, 2024, is https://urlcurt.com/u?l=iBoljJ
HC CONCRETE: Construction Workers Class Certified in Avelar Suit
----------------------------------------------------------------
In the class action lawsuit captioned as LUIS AVELAR and MATEO
GOMEZ, individually and on behalf of all similarly-situated
persons, v. HC CONCRETE CONSTRUCTION GROUP, LLC, AND JON HARRIS,
Case No. 3:22-cv-00292 (M.D. Tenn.), the Hon. Judge Aleta Trauger
entered an order granting the Plaintiffs' motion for class
certification with a modified definition of the class, as follows:
(1) This action is certified as a class action with respect to
Counts Two (fraud), Three (conversion), and Four (unjust
enrichment) of the Complaint (Doc. No. 1).
(2) The class is defined as:
"All current and former hourly paid construction workers who
worked for HC Construction Group, LLC at any time since
April
22, 2019, were classified as "independent contractors," and
had
money deducted from their paychecks for workers'
compensation
insurance premiums."
(3) Named plaintiffs Luis Avelar and Mateo Gomez are designated
as
class representatives.
(4) Attorneys Martin D. Holmes, M. Reid Estes, Jr., and Autumn
L.
Gentry of Dickinson Wright PLLC are appointed as class
counsel.
(5) Defendants shall provide to the plaintiffs the names,
physical
addresses, email addresses, and cell phone numbers of all
class
members within 10 DAYS of the date of entry of this Order.
(6) The parties shall confer and attempt to reach an agreement
regarding the notice to be issued to all class members,
which
notice must comply with Rule 23(c)(2). Within 30 days after
entry of this Order, the plaintiffs shall file a motion for
the
approval of the language and method of publication of the
proposed notice, indicating whether the motion is or is not
opposed.
H&C Concrete specializes in foundations, pile caps, foundation
walls, slab on grade, cast in place columns/walls, elevated cast in
place decks.
A copy of the Court's order dated Sept. 25, 2024, is available from
PacerMonitor.com at https://urlcurt.com/u?l=CKlgr3 at no extra
charge.[CC]
HC CONCRETE: Wins Bid to Drop Misjoined Parties in Avelar
----------------------------------------------------------
In the class action lawsuit captioned as LUIS AVELAR and MATEO
GOMEZ, individually and on behalf of all similarly situated
persons, v. HC CONCRETE CONSTRUCTION GROUP, LLC, and JON HARRIS,
Case No. 3:22-cv-00292 (M.D. Tenn.), the Hon. Judge Aleta Trauger
entered an order granting granting the Defendants' motion to Drop
Misjoined Parties.
-- the Fair Labor Standards Act (FLSA) claims brought by putative
opt-in plaintiffs Maida Hernandez, Geovany Rodas, and Urbano
Gutierrez are dismissed without prejudice, on the basis that
these
individuals are not similarly situated to the named plaintiffs
for
purposes of the FLSA collective claims.
The court finds that dismissing any opt-in plaintiffs' claims under
the FLSA and dismissing them as opt-in plaintiffs with respect to
the FLSA collective action, whether with or without prejudice, has
no bearing on whether they will be deemed members of a class for
purposes of the plaintiffs' state law claims.
The plaintiffs filed their Collective and Class Action Complaint,
asserting a claim for violations of the wage and hour provisions
the Fair Labor Standards Act ("FLSA") on their own behalf and on
behalf of other similarly situated individuals, under the
provisions of the FLSA authorizing other similarly situated
individuals to "opt-in" as plaintiffs in a collective action.
HC Concrete is a privately owned company that provides commercial
concrete contracting services primarily in the Nashville, Tennessee
area.
A copy of the Court's order dated Sept. 25, 2024, is available from
PacerMonitor.com at https://urlcurt.com/u?l=pqrcbh at no extra
charge.[CC]
HEARTLAND PAYMENT: 9th Cir. Remands Black Ship, et al. Class Suit
-----------------------------------------------------------------
In the class action lawsuit captioned as BLACK SHIP, LLC; 33 TAPS,
LLC; HINOKI & THE BIRD, LLC, individually and on behalf of all
others similarly situated v. HEARTLAND PAYMENT SYSTEMS, LLC,
successor-in-interest to Heartland Payment Systems, LLC, F/K/A
Heartland Payment Systems, Inc. HEARTLAND PAYMENT SYSTEMS, LLC,
Appellant, No. 23-1997 (3rd Cir.), the United States Court of
Appeals for the Third Circuit will vacate the United States
District Court for the District of New Jersey's order and remand
the case for re-evaluation of Heartland's motion to compel
arbitration or in the alternative to dismiss for a lack of personal
jurisdiction.
Heartland Payment Services, LLC, a citizen of Georgia, provides
credit and debit card processing services. In
March 2016, two restaurants in Los Angeles, California -- 33 Taps,
LLC and Hinoki & the Bird, LLC, which both had citizenship in
Nevada and Virginia -- entered into a Merchant Processing Agreement
with Heartland for its services. The agreement contained a schedule
of fees for processing credit and debit card transactions.
The Original MPA also had several terms related to dispute
resolution. It had a forum-selection clause, which required any
lawsuit to be brought either in the United States District Court
for the District of New Jersey or in the Superior Court in Mercer
County, New Jersey. As a companion provision, the Original MPA
included a choice-of-law clause, which identified New Jersey law as
governing the agreement. The Original MPA, however, did not contain
an arbitration clause.
Around May 2017, Heartland posted a document on its website,
referred to herein as "the Revised MPA." Under the terms of that
document, Heartland could charge higher fees immediately,
unilaterally, and without prior notice. The Revised MPA also had
different dispute-resolution terms. Its forum-selection and
choice-of-law clauses used Georgia as the relevant jurisdiction for
both purposes. In addition, the Revised MPA contained a
class-action waiver and a mandatory arbitration clause.
Starting in 2019, Heartland began to charge higher fees consistent
with the Revised MPA. In October 2021, the two restaurants (along
with another Los Angeles based restaurant, Black Ship, LLC, which
has since voluntarily dismissed its claims) filed a putative class
action complaint against Heartland in the District Court. The
claims in the complaint, as amended, centered on allegations that
Heartland violated the Original MPA by charging higher fees than
permitted under that agreement.
Heartland moved to dismiss for a lack of personal jurisdiction or
in the alternative to compel arbitration. Its defenses rested on
the premise that the Revised MPA, not the Original MPA, governed
the parties' relationship. In Heartland's view, that was so because
under the Unilateral Amendment Clause of the Original MPA, the
posting of the Revised MPA on Heartland's website effectuated that
revised agreement. Thus, according to Heartland, because the
Revised MPA governed the parties' relationship, there was no
personal jurisdiction in New Jersey and arbitration was required.
In opposing that motion, the two restaurants argued that the
Original MPA controlled the parties' relationship. They relied on
the Notice Clause for the proposition that any notice must be
provided through first-class mail, and since the Revised MPA was
not sent through first-class mail, the requisite notice was not
provided for the Revised MPA to take effect. From their perspective
that the Original MPA continued to govern the parties' relationship
even after May 2017, the restaurants asserted that there was no
arbitration requirement and personal jurisdiction in New Jersey was
proper.
Exercising subject-matter jurisdiction under the Class Action
Fairness Act for minimally diverse classes of over 100 members with
over $5 million in controversy, the District Court denied
Heartland's motion.
Heartland then invoked the Third Circuit's appellate jurisdiction
over interlocutory orders denying arbitration. It now disputes
both the denial of arbitration as well as the rejection of its
personal-jurisdiction defense since both dispositions arguably
depend on the same underlying issue: whether the Original MPA or
the Revised MPA governed the parties' business relationship
starting in May 2017.
The Third Circuit points out neither the arbitrability issue nor
the personal jurisdiction issue require factual findings for
resolution. The Appellate Court explains, "Instead, both issues --
arbitrability and personal jurisdiction -- depend on the
construction of the Unilateral Amendment Clause and the Notice
Clause. And in this instance, that is a pure legal question. In
interpreting those provisions, however, statements of legal
conclusions in a pleading receive no weight. Thus, any assertion by
the restaurants in their operative complaint that those clauses
were ambiguous cannot be credited. Nor is an interpretation of an
ambiguity in a legal document an inference that must be drawn in a
plaintiff's favor at the motion-to-dismiss stage. Thus, the
District Court was not under an obligation to credit the
restaurants' interpretation of the Unilateral Amendment Clause and
the Notice Clause; rather, it should have performed a legal
interpretation."
A full-text copy of the Court's Opinion dated September 17, 2024,
is available at https://urlcurt.com/u?l=uZFPVZ
HILL'S PET: Loses Bid to Stay Discovery in KetoNatural Lawsuit
--------------------------------------------------------------
In the class action lawsuit captioned as KETONATURAL PET FOODS,
INC., individually and on behalf of all others similarly situated,
Plaintiff, v. HILL'S PET NUTRITION, INC., a subsidiary of
COLGATE-PALMOLIVE CO., Defendant, Case No. 24-cv-2046-KHV-ADM (D.
Kan.), Magistrate Judge Angel D. Mitchell of the United States
District Court for the District of Kansas denied Hill's motion to
stay discovery pending resolution of its motion to dismiss.
On February 6, 2024, KetoNatural filed this putative class action
asserting that Hill's, acting with others, undertook a scheme to
falsely convince American dog owners that "non-traditional" dog
foods increase the risk and severity of a deadly canine heart
disease called dilated cardiomyopathy. KetoNatural asserted two
causes of action: (1) false advertising under the Lanham Act, 15
U.S.C. Sec. 1125(a), and (2) civil conspiracy under Kansas common
law.
On June 17, Hill's responded by filing a motion to dismiss under
FED. R. CIV. P. 12(b)(6). Hill's motion asserts, among other
things, that the false-advertising claim fails because
the accused statements are not commercial speech and are not false,
and that the conspiracy claim fails because it is tied to the
false-advertising claim and, in any event, does not plead the
requisite "who, what, where, and when" necessary to state a claim.
KetoNatural opposed the motion, which is now fully briefed and
pending before the presiding district judge.
On August 23, Hill's filed the current motion to stay discovery
pending the court's ruling on the motion to dismiss. Hill's notes
that the ruling could dispose of the entire action or at least
substantially narrow the issues for discovery, and as a result,
proceeding with discovery would be wasteful and burdensome.
KetoNatural opposes a discovery stay. It argues that the motion to
dismiss lacks merit and is unlikely to be granted, and that Hill's
"burdensome" argument is speculative and not supported.
Judge Mitchell says, "The court is not persuaded that the case is
likely to be fully resolved via the pending motion to dismiss, at
least not any more so than when reviewing motions to dismiss filed
in other cases. The court does not presume to predict how the
district judge will rule, but KetoNatural raises what appear to be
legitimate arguments against dismissal at the pleading stage. It is
true that the ruling on the motion to dismiss might trim down the
case a bit, but then discovery will still be necessary to resolve
the case in its entirety. Quite simply, the pending motion to
dismiss does not appear to be any more meritorious (and hence
likely to end the case) than motions to dismiss regularly filed in
this court. In view of the above, the court cannot conclude that it
is likely that the case will be resolved upon the district judge's
ruling."
Hill's also has not demonstrated that participating in discovery at
this procedural juncture would be wasteful or burdensome enough to
justify a stay, the Court notes.
The Court concludes in sum, Hill's has not met its burden to
demonstrate that this is an exceptional case warranting a discovery
stay.
A copy of the Court's Memorandum and Order dated September 23,
2024, is available at
https://urlcurt.com/u?l=RCPKcK
HISAMITSU AMERICA: Class Cert Bid in Hrapoff Modified to Oct. 21
----------------------------------------------------------------
In the class action lawsuit captioned as CHERI HRAPOFF, JODY
HESSEL, and MARCY LUCCHESI, individually, and on behalf of all
those similarly situated, v. HISAMITSU AMERICA, INC, Case No.
4:21-cv-01943-JST (N.D. Cal.), the Hon. Judge Jon S. Tigar entered
a modified scheduling order as follow:
Event Current Proposed
Deadline Deadline
Class certification motion due Sept. 20, 2024 Oct. 21,
2024
Plaintiffs' class certification Sept. 20, 2024 Oct. 21,
2024
expert disclosures due
Plaintiffs' Opposition to Motion Sept. 30, 2024 Oct.
30,2024
for Reconsideration due
Defendant's Reply ISO Motion Oct. 14, 2024 Nov. 13,
2024
for Reconsideration due
Class certification opposition Nov. 22, 2024 Dec. 23,
2024
due
Defendant's class certification Nov. 22, 2024 Dec. 23,
2024
expert disclosures due
Class certification reply due Dec. 20, 2024 Jan. 20,
2025
Hisamitsu offers pain relieving patches, as well as poultices,
plasters, and ointments.
A copy of the Court's order dated Sept. 25, 2024, is available from
PacerMonitor.com at https://urlcurt.com/u?l=ESzdrd at no extra
charge.[CC]
The Plaintiffs are represented by:
Jonathan Shub, Esq.
SHUB & JOHNS LLC
200 Barr Harbor Drive, Suite 400
Conshohocken, PA 19428
Telephone: (610) 477-8380
E-mail: jshub@shublawyers.com
The Defendant is represented by:
Jason J. Kim, Esq.
HUNTON ANDREWS KURTH LLP
550 South Hope Street, Suite 2000
Los Angeles, CA 90071-2627
Telephone: (212) 532-2000
Facsimile: (212) 532-2020
E-mail: kimj@HuntonAK.com
INTOUCHCX SOLUTIONS: Court Narrows Claims in Pearson, et al. Suit
-----------------------------------------------------------------
In the case captioned as FREDDIE PEARSON, et al., Plaintiffs, v.
INTOUCHCX SOLUTIONS, INC., Defendant, Case No.:
2:23-cv-01888-APG-MDC (D. Nev.), Judge Andrew P. Gordon of the
United States District Court for the District of Nevada granted in
part InTouch's motion to dismiss.
Plaintiffs Freddie Pearson and Lea Ann Dailey sue their former
employer, InTouchCX Solutions, alleging InTouch failed to pay them
for overtime hours in violation of the Fair Labor Standards Act.
The plaintiffs purport to represent a collective of former call
center agents who worked for InTouch during the three years
preceding the filing of the complaint. Pearson also sues for
failure to pay wages for each hour, overtime, and the minimum wage
under Nevada law and the Nevada Constitution on behalf of himself
and a putative class of former Nevada InTouch employees. InTouch
moves to dismiss portions of the plaintiffs' second amended
complaint for failing to plausibly allege a cause of action.
InTouch argues that the SAC alleges insufficient facts to support a
plausible FLSA claim based on misclassification because the
plaintiffs allege they were hourly employees. The plaintiffs
respond that FLSA exemptions are affirmative defenses that InTouch
could raise in its answer and that their claims are not dependent
on a misclassification theory.
Judge Gordon says there are no facts in the SAC to support a
misclassification theory other than the conclusory statement that
InTouch 'unlawfully classifies some call center agents as exempt
employees and fails to pay them overtime compensation for hours
worked in excess of 40 in a workweek.' So, he dismisses the
plaintiffs' claims to the extent they are based on employees being
misclassified as exempt from the FLSA's minimum wage and overtime
requirements. He grants the plaintiffs leave to amend their
complaint if they intend to allege such a claim.
InTouch argues that Pearson cannot recover for unpaid exception
time accrued after his shift had ended because there are no facts
alleging that he ever worked exception time. Pearson does not
oppose dismissal on this basis. Therefore, Judge Gordon dismisses
Pearson's claims to the extent they rely on post-shift exception
time.
InTouch moves to dismiss the plaintiffs' claims to the extent they
rely on unpaid tech time because the plaintiffs have not provided
specific dates in which the tech time caused them to work more than
40 hours and because tech time was non-compensable "waiting time."
The plaintiffs argue that they have met the pleading standard under
Landers for the tech time.
Judge Gordon concludes, "The plaintiffs have plausibly alleged that
they were not free to leave their computer during tech time and
this time was uncompensated; therefore I deny InTouch's motion to
dismiss the claims based on tech time."
The plaintiffs may file an amended complaint to cure the
deficiencies identified in this order by October 18, 2024.
A copy of the Court's Order dated September 23, 2024, is available
at https://urlcurt.com/u?l=vZsAh8
KATZ NANNIS: Brown Sues Over Private Data Breach
------------------------------------------------
PHENICIA BROWN, individually and on behalf of all others similarly
situated, Plaintiff v. KATZ NANNIS + SOLOMON, PC, Defendant, Case
No. 1:24-cv-12414 (D. Mass., September 20, 2024) arises from
Defendant's its failure to properly secure and safeguard sensitive
information of its clients.
The Plaintiff's and Class Members' sensitive personal information
-- which they entrusted to Defendant on the mutual understanding
that Defendant would protect it against disclosure -- was targeted,
compromised, and unlawfully accessed due to the Data Breach that
occurred sometime between November 21, 2023, and November 27, 2023.
On September 3, 2024, the Defendant began sending Plaintiff and
other Data Breach victims a Notice of Data Breach letter. Moreover,
the Defendant failed 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.
Accordingly, the Plaintiff seeks redress for Defendant's unlawful
conduct and asserts claims for negligence, negligence per se, and
breach of implied contract.
Headquartered in Massachusetts, Katz Nannis + Solomon, PC is a
certified public accountant group that provides services to
early-stage, angel, and venture funded technology, life science and
entrepreneurial companies.[BN]
The Plaintiff is represented by:
Christina Xenides, Esq.
Tyler Bean, Esq.
SIRI & GLIMSTAD LLP
745 Fifth Avenue, Suite 500
New York, NY 10151
Telephone: (212) 532-1091
Facsimile: (646) 417-5967
E-mail: cxenides@sirillp.com
tbean@sirillp.com
- and -
Jeff Ostrow, Esq.
KOPELOWITZ OSTROW FERGUSON WEISELBERG GILBERT
One West Law Olas Blvd., Suite 500
Fort Lauderdale, FL 33301
Telephone: (954) 332-4200
E-mail: ostrow@kolawyers.com
KEMPER SPORTS: Scheide Sues Over Alleged Data Breach
----------------------------------------------------
EDWIN SCHEIDE, on behalf of himself and all others similarly
situated, Plaintiff v. KEMPER SPORTS MANAGEMENT, LLC, Defendant,
Case No. 1:24-cv-08679 (N.D. Ill., September 20, 2024) arises out
of the data breach that occurred on April 1, 2024 and impacted
several thousands of current and former employees.
On or about September 9, 2024 -- five months after the data breach
first occurred--Defendant finally began notifying Class Members
about the data breach. However, the Defendant's Breach Notice
obfuscated the nature of the breach and the threat it
posted--refusing to tell its employees how many people were
impacted, how the breach happened, or why it took the Defendant
almost two months to finally begin notifying victims that
cybercriminals had gained access to their highly private
information. The Defendant's failure to timely report the data
breach made the victims vulnerable to identity theft without any
warnings to monitor their financial accounts or credit reports to
prevent unauthorized use of their personally identifiable
information. Accordingly, the Plaintiff seeks redress for
Defendant's unlawful conduct and asserts claims for negligence,
breach of implied contract, unjust enrichment, invasion of privacy,
and breach of fiduciary duty.
Headquartered in Northbrook, IL, Kemper Sports is a golf sports and
hospitality management company that manages over 140 golf courses,
private clubs, sports venues and destination resorts nationwide.
[BN]
The Plaintiff is represented by:
Samuel J. Strauss, Esq.
Raina Borelli, Esq.
STRAUSS BORRELLI PLLC
980 N. Michigan Avenue, Suite 1610
Chicago, IL 60611
Telephone: (872) 263-1100
Facsimile: (872) 263-1109
E-mail: sam@straussborrelli.com
raina@straussborrelli.com
KISS NUTRACEUTICALS: Objections to Discovery Order Sustained
------------------------------------------------------------
In the case captioned as MELISSA GAMBOA, on her own behalf and on
behalf of all others similarly situated, Plaintiff, v. KISS
NUTRACEUTICALS, KISS INDUSTRIES, LLC, COLE EVANS, and GRANT DEAN,
Defendants, Civil Action No. 22-cv-1141-WJM-JPO (D. Colo.), Senior
Judge William J. Martínez of the United States District Court for
the District of Colorado sustained Plaintiffs' Objections to
Magistrate Judge James P. O'Hara's Minute Order Permitting
Depositions of Counsel and Public Official in their entirety.
The Court also entered an order as follows:
Plaintiffs shall file their Renewed Motion for Class Certification
by no later than October 9, 2024;
Defendants' response to said Renewed Motion shall be due no later
than October 23, 2024; and
Plaintiffs' Reply will be due no later than October 30, 2024.
Plaintiffs object to Magistrate Judge O'Hara's Order finding good
cause to modify the Phase I Scheduling Order and permitting
Defendants to take further class certification discovery through,
inter alia, the depositions of Plaintiffs' counsel (Mr. Brandt
Milstein and Mr. Andrew Turner), opt-in Plaintiff Maria Hernandez,
and Denver Labor Executive Director Matthew Fritz-Mauer. In
significant part, the parties' disagreement as to whether
additional class certification discovery is necessary turns on, as
Magistrate Judge O'Hara put it, the parties "radically different
views" of certain events taking place on (and in the months leading
up to) January 6, 2024.
Named Plaintiff Melissa Gamboa (a former employee of Defendants)
filed this class and collective action on behalf of herself and all
others similarly situated in May 2022, asserting violations of
federal and state law based on Defendants' alleged "refusal to pay
their employees overtime premiums for overtime hours worked.
Shortly after the litigation began, then-Magistrate Judge S. Kato
Crews entered a Scheduling Order providing for bifurcated
discovery. Pursuant to that Order, Phase I of the litigation would
be directed to class certification issues, with discovery
concluding on that topic on February 1, 2023. Plaintiff ultimately
filed her Rule 23 Motion for Class Certification in August 2023,
suggesting the parties had -- as of that time -- completed all
discovery necessary to fully brief class certification. On the same
date, the Court granted Plaintiff's Renewed Motion for Conditional
Collective Action Certification, thereby approving the Notice and
Consent to Join form appended thereto and authorizing a 60-day
opt-in period from the date Plaintiff disseminated the Notice.
On Defendants' September 2023 deadline to respond to the Class
Certification Motion, the parties instead jointly requested a
settlement conference and a stay of all proceedings pending the
same. As a result of the subsequent stay, briefing on the Class
Certification Motion was suspended. It is during this time, when
the litigation was stayed and briefing on class certification
remained incomplete, that the January Event occurred.
Plaintiffs' specific objections to the Discovery Order are
four-fold:
(1) "the Magistrate Judge erred in concluding that Defendants
had demonstrated good cause to re-open class certification
discovery to take depositions and documentary discovery from
Plaintiffs' counsel" insofar as Magistrate Judge O'Hara found "the
depositions ordered 'will develop evidence relevant to whether
Plaintiffs' current counsel could represent the class'";
(2) "the Magistrate Judge erred by failing to apply the Shelton
test or analyze any of its factors";
(3) the Discovery Order was clearly erroneous in holding that
'the requested discovery will develop evidence relevant to whether
plaintiff would be an adequate class representative'; and
(4) the Magistrate Judge erred by ordering documentary discovery
which Defendants have now utilized to seek the production of
counsel's files containing the names of all Kiss workers who
attended the immigration clinic."
Plaintiffs' Objection appears to take particular issue with
Magistrate Judge O'Hara's finding "that the depositions ordered
'will develop evidence relevant to whether Plaintiffs' current
counsel could represent the class.'"
Plaintiffs contend that "the class certification inquiry does not
permit the deposition of putative class counsel." As further
support, Plaintiffs state their "counsel finds no precedent from
any jurisdiction ever having permitted the deposition of putative
class counsel predicate to certification." The Court, too, is
wholly unconvinced that the depositions ordered are likely to
elicit evidence relevant to the Court's assessment of whether
Plaintiffs' counsel is adequate to represent the class under Rule
23(g).
Because the Court finds that the depositions ordered related to the
January Event are highly unlikely to elicit evidence relevant to
the adequacy of class counsel, the Court also finds the Smith
factors weigh against finding good cause to reopen class
certification discovery to depose Plaintiffs' counsel.
In this regard, Magistrate Judge O'Hara's Discovery Order was
clearly erroneous, and Plaintiffs' Objection is sustained, the
Court holds.
A copy of the Court's Order dated September 23, 2024, is available
at https://urlcurt.com/u?l=cbedy1
LUCERO AG: Hearing on Motion to Withdraw Counsel Set for Nov. 15
----------------------------------------------------------------
Magistrate Judge Erica Grosjean of the United States District Court
for the Eastern District of California scheduled a hearing on
November 15, 2024, at 10:00 a.m. for Littler Mendelson, P.C. and
its attorneys' motion, requesting leave to withdraw as counsel of
record for Defendants Lucero Ag Services, Inc. and Ricardo Ulices
Lucero-Ambrosio in the class action captioned as AZUCENA ORTIZ, et
al., Plaintiffs, v. LUCERO AG SERVICES, INC., et al., Defendants,
Case No. 1:23-cv-01319-JLT-EPG (E.D. Calif.).
Plaintiffs Azucena Ortiz, Gustavo Meza, and Dominga Espinoza filed
this putative class action on September 5, 2023, mostly alleging
violations of California state labor laws. The complaint names five
Defendants: (1) Lucero Ag Services, Inc.; (2) Paragroup Farms,
Inc.; (3) Ricardo Ulices Lucero-Ambrosio; (4) 559 Ag Corp., and (5)
Artemio Fidel Salazar Luna.
Defendants Lucero Ag Services, Inc. and Ricardo Ulices
Lucero-Ambrosio are directed to appear for the hearing and will be
given the opportunity to respond to counsel's motion to withdraw.
If they fail to appear at the hearing, they are advised that the
motion may be granted without any further opportunity for them to
offer their position.
A copy of the Court's Order dated September 23, 2024, is available
at https://urlcurt.com/u?l=8qkqy4
MAC PROPERTIES: Settles Power Failure Class Action Suit
-------------------------------------------------------
Zoe Pharo, writing for Hyde Park Herald, reports that a class
action lawsuit launched by tenants of two Algonquin Apartment
buildings that suffered a major power failure during a sub-zero
cold snap is nearly settled almost two years after the outage.
On December 23 of 2022, a power outage knocked out the two towers'
water, electricity and heat for nearly three weeks, displacing 180
residents. Weeks later, the Department of Buildings (DOB) assigned
blame for the failure on the apartment's property manager, Mac
Properties, saying that its previous unpermitted electrical work
overwhelmed the utility's system.
Mac, the DOB maintained, had installed dozens of individual window
heating units to replace basement boilers throughout its six
Algonquin Apartment buildings without the required permits. ComEd
representatives said the company was not informed by Mac of the
increased load, causing the outage in buildings located at 1607 and
1617 E. 50th Pl. when temperatures plummeted.
In a class action lawsuit filed weeks after these findings, tenants
say they sought damages from Mac because the outages "were the
direct result of Defendants' misconduct and grossly negligent
maintenance," the complaint reads.
After almost two years of evaluating documents and internal
communications from ComEd, the DOB and Mac, as well as interviews
with about 60 current and former tenants, a judge gave a
preliminary ruling in July in favor of the plaintiffs.
Per the ruling, tenants displaced by the outage can now file claims
to receive a minimum of $6,100 in compensation from Mac for damages
and injuries.
Mac's director of community development, Peter Cassel, told the
Herald that the company continues to disagree with the DOB's
claims. He said Mac did inform ComEd of the changes and that the
heating units were not the cause of the failure.
The first night of the outage, Mac reported that a warming bus and
the lobby of next-door Regents Park, 5035 S. East End Ave., were
provided for residents to shelter. When tenants filed suit weeks
later, however, they blasted the company for not offering other
accommodations, saying some tenants were forced to sleep in their
cars or find alternative accommodations on their own.
Cassel declined to respond to a Herald question regarding what
accommodations Mac provided that first night.
When residents were able to move back into their units in
mid-January, at least a quarter had chosen to move to other Mac
apartments or terminated their leases.
Gabriella Johnson, a three year tenant and plaintiff in the suit,
told the Herald last year that she remained in her dark and cold
13th-floor apartment well into Christmas Eve waiting for the power
to return when workers from the DOB began an emergency evacuation
of the building. She alleged that she wasn't able to get in contact
with anyone from Mac Properties until three days later.
"I can't believe the way Mac Properties handled this," she told the
Herald last year. "For no one to knock on the door, for none of the
residential service people to reach out by phone is unthinkable."
The damages, the lawsuit reads, extend beyond the holiday
cold-snap. It also includes issues tenants discovered upon
returning to their units, such as burst pipes and damaged or stolen
belongings.
Represented by attorneys Caryn C. Lederer and Tory Tilton of Hughes
Socol Piers Resnick & Dym, Ltd., the class action suit got
preliminary approval for settlement from Judge Michael Tully Mullen
on July 16.
With this preliminary approval, aAny individual who had a lease in
the two buildings at any point between December 23, 2022 and
January 13, 2023; was at least 18-years-old and who has not yet
signed a release of claims or settlement with Mac is now eligible
to submit a claim. Tenants may also opt out or object to the
settlement.
The date to submit a claim form, available at
bit.ly/AlgonquinClaim, is October 5. The deadline to object to the
settlement is November 6. The settlement will receive final
approval on November 7.
In total, Mac Properties will pay a settlement amount of $995,000.
The portion of the settlement allotted to tenants will amount to at
least $610,000, and will be divided equally among those who submit
claims. The individual settlement payout is expected to be a
minimum of $6,100, per court documents. The three plaintiffs who
initially launched the suit will also receive an additional $7,500,
an incentive award for their "time, effort, and risk" in pursuing
the case on behalf of other tenants.
Tilton, one of the lawyers representing Algonquin tenants, said the
legal team is now in the process of contacting people who they
believe qualify for the settlement.
They will appear next before the judge on November 7, after anyone
who wants to has filed a claim, for final approval. Tilton
estimates that about 99 residents are eligible for the settlement,
as some have likely already signed a release of claims with Mac.
Tilton said the team is pleased with the settlement.
"We understand residents impacted by the outage have been waiting
for compensation for quite some time, so we're pleased that that is
hopefully around the corner for them," she said. "We're just
hopeful that this settlement can provide some resolution and
closure to a very difficult event."
Cassel did not have any further comment on the settlement. [GN]
MDL 3076: Plaintiffs Seek OK of Global Resolution of All Disputes
-----------------------------------------------------------------
In the class action lawsuit Re: FTX Cryptocurrency Exchange
Collapse Litigation, Case No. 1:23-md-03076-KMM (S.D. Fla.), the
Plaintiffs ask the Court to enter an order approving the Global
Resolution of all pending disputes between Plaintiffs and the FTX
Debtors.
The Global Resolution will allow the MDL Plaintiffs, and the FTX
Debtors, to coordinate their activities before this MDL Court, the
Bankruptcy Court, and in the FTX criminal prosecutions.
Should the Court approve of this Global Resolution, MDL Plaintiffs
respectfully submit that the Court should establish monthly status
conferences, at the Court's convenience, so that the parties may
expeditiously raise any issues requiring Court intervention for
resolution in a timely manner, thereby advancing these MDL actions
in line with the policy of just and efficient resolution of these
complex consolidated proceedings.
Any class-wide settlements reached with any Defendants in this MDL
pursuant to this arrangement with the FTX Debtors will be subject
to the Notice provisions of Rule 23 of the Federal Rules of Civil
Procedure.
On March 11, 2024, Plaintiffs advised the Court that they had
reached a settlement with eleven FTX MDL Defendants: FTX Insider
Defendants, Gary Wang, Nishad Singh, Caroline Ellison, and Dan
Friedberg, as well as FTX Promoter Defendants, William Trevor
Lawrence, Kevin Paffrath, Tom Nash, Brian Jung, Graham Stephan,
Andre Jikh, and Jeremy LeFebvre.
The Court then stayed the cases as to those settling Defendants and
ordered that Plaintiffs file their omnibus motion for preliminary
approval of a class settlement before March 27, 2024 (ECF 539),
which Plaintiffs timely filed. (ECF 565). That motion for approval
remains pending.
Among the Defendants in the MDL are FTX's former executives and
professional services firms and celebrity promoters who worked with
FTX and allegedly were complicit in the alleged fraud.
Like the actions in the MDL, the Singh action is a putative class
action arising out of the FTX collapse. Plaintiffs allege that
defendant Singh promoted an FTX product (specifically,
Yield-Bearing Accounts, or "YBAs") and was complicit in the alleged
fraud.
Notably, the Plaintiffs assert nearly identical claims against
defendant Singh in the MDL but filed this action to address
alleged personal jurisdiction defects. Singh undoubtedly shares
factual questions with the actions in the MDL, and the transferee
court is well-positioned to manage the pretrial proceedings.
A copy of the Plaintiffs' motion dated Sept. 25, 2024, is available
from PacerMonitor.com at https://urlcurt.com/u?l=6SJbNq at no extra
charge.[CC]
The Plaintiffs are represented by:
Adam M. Moskowitz, Esq.
Joseph M. Kaye, Esq.
THE MOSKOWITZ LAW FIRM, PLLC
Continental Plaza
3250 Mary Street, Suite 202
Coconut Grove, FL 33133
Telephone: (305) 740-1423
E-mail: adam@moskowitz-law.com
joseph@moskowitz-law.com
service@moskowitz-law.com
- and -
David Boies, Esq.
Alexander Boies, Esq.
Brooke A. Alexander, Esq.
Marc Ayala, Esq.
Stephen Neal Zack, Esq.
Tyler Ulrich, Esq.
BOIES SCHILLER FLEXNER LLP
333 Main Street
Armonk, NY 10504
Telephone: (914) 749-8200
E-mail: dboies@bsfllp.com
aboies@bsfllp.com
balexander@bsfllp.com
mayala@bsfllp.com
szack@bsfllp.com
MDL 3116: Crawford's Bid to Centralize Litigation in D.N.J. Denied
------------------------------------------------------------------
Judge Karen K. Caldwell, Chairperson of the U.S. Judicial Panel on
Multidistrict Litigation, denied Lawrence L. Crawford's move to
transfer three actions, one each from the U.S. District Court for
the Northern District of Georgia, Southern District of Ohio and the
Eastern District of Pennsylvania, to centralize litigation to the
District of New Jersey under "In re: Lawrence L. Crawford
Litigation," MDL No. 3116. The Movant is proceeding pro se.
The three actions (including a potential tag-along action) concern
asserted violations of the rights of Crawford and other inmates
based on an alleged conspiracy in federal and state courts to
conceal evidence and obstruct rulings in their cases, an alleged
failure by South Carolina prisons to provide adequate medical care
and safe prison conditions, alleged acts of racial discrimination
by hundreds of defendants, and the policies of the Catholic church.
Some of the alleged violations appear to overlap, but many do not.
Moreover, one action (Fearless Fund) does not involve Crawford at
all and is entirely factually unrelated to the grievances he raises
in the other two actions on the motion.
According to the panel, the movant makes little effort to
demonstrate common factual issues. Rather, his main argument in
support of centralization is an alleged common question of law -
whether the Fourth Circuit should be disqualified from presiding
over his cases. Common legal questions, however, are insufficient
to satisfy the requirement of common factual questions. There also
are only three related actions in three districts namely, the
Southern District of Ohio, Eastern District of Pennsylvania, and
Western District of Kentucky, excluding the unrelated Fearless Fund
action. Nothing in the record suggests that centralization of these
few actions would serve the convenience of the parties or promote
the just and efficient conduct of the litigation. Indeed, they
still are in the case screening process applicable to pro se
prisoners seeking to file in forma pauperis under 28 U.S.C. Section
1915.
The panel concluded that centralization will not serve the
convenience of the parties and witnesses or further the just and
efficient conduct of the litigation. Movant Crawford has a long
history of frivolous litigation in the federal courts and his
briefs plainly acknowledge that he seeks centralization to avoid
courts that he believes wrongfully dismissed his cases. But
centralization is not a mechanism for avoiding a court allegedly
"hostile to his claims." Additionally, movant has failed to meet
his burden of demonstrating common factual issues that warrant
centralization.
A full-text copy of the court's July 31, 2024 order is available at
https://www.jpml.uscourts.gov/sites/jpml/files/MDL-3116-Order_Denying_Transfer-7-24.pdf
MDL 3117: Transfer of 35 Suits to NY Tax Foreclosure Row Denied
---------------------------------------------------------------
In the multi-district action captioned "In re: New York Tax
Foreclosure Surplus Litigation," MDL No. 3117, Judge Karen K.
Caldwell, Chairperson of the U.S. Judicial Panel on Multidistrict
Litigation, denied the transfer of 35 actions -- three putative
class actions and 32 individual or multi-plaintiff actions --
pending in three adjoining New York districts to the U.S. District
Court for the Northern District of New York.
These actions were filed in the wake of the U.S. Supreme Court's
ruling in "Tyler v. Hennepin County, 598 U.S. 631 (2023)," which
held that a government entity's retention of surplus proceeds after
the sale of a property for unpaid property taxes, without adequate
means for the foreclosed property owner to recover the surplus
proceeds, is a taking of private property for public use without
just compensation in violation of the Fifth Amendment to the
Constitution. Plaintiffs allege that the county or city defendants
foreclosed on their properties for unpaid taxes, and sold or
retained title to the properties without returning to plaintiffs
the amount by which the properties' sale price or value exceeded
the tax debts. They assert identical claims that defendants
violated the Takings Clause of the Fifth Amendment, and most assert
additional overlapping claims for unjust enrichment and violation
of the Excessive Fines clause of the federal or New York
Constitution.
According to the panel, the central factual questions to be
resolved in each case, however -- whether the property's value
exceeded the amount of plaintiffs' tax debts, whether plaintiffs
were afforded an adequate procedure for seeking to have any surplus
returned to them, whether plaintiffs timely pursued any such
procedure, and whether there are any co-owners of the properties or
lienholders with potential claims -- will be unique to each case.
In addition, plaintiffs concede that the procedures and practices
for foreclosing on properties differed from one county or city to
the next. Thus, while actions against any particular defendant may
involve some overlapping discovery regarding those procedures,
there are at least 30 different county defendants and four
different city defendants, and no defendant is named in more than
three actions. In these circumstances, there would be few, if any,
efficiencies to be gained by centralizing the actions for common
discovery. Hence, centralization is not necessary for the
convenience of the parties and witnesses or to further the just and
efficient conduct of the litigation, rules the panel.
A full-text copy of the court's August 2, 2024 order is available
at
https://www.jpml.uscourts.gov/sites/jpml/files/MDL-3117-Order_Denying_Transfer-7-24.pdf
MDL 3119: 5 Suits Consolidated in Shale Oil Antitrust Row
---------------------------------------------------------
In the multi-district action captioned "In re: Shale Oil Antitrust
Litigation," MDL No. 3119, Judge Karen K. Caldwell, Chairperson of
the U.S. Judicial Panel on Multidistrict Litigation, transfers
three cases from the U.S. District Court for the District of Nevada
and two from the District of New Mexico, all to the District of New
Mexico and, with the consent of that court, assigned them to Judge
Matthew L. Garcia for coordinated or consolidated pretrial
proceedings. All responding parties agree that the actions should
proceed together in one court.
These actions share factual questions arising from an alleged
price-fixing conspiracy among eight of the nation's largest shale
oil producers, which plaintiffs allege has had the effect of
fixing, raising, and maintaining the price of petroleum-based
products such as gasoline, diesel fuel, commercial marine fuel, and
heating oil, throughout the U.S. Plaintiffs variously bring claims
for violation of federal and state antitrust, unfair competition,
and consumer protection laws. All actions propose putative classes
of indirect purchasers of various petroleum-based products made
from crude oil.
All parties agree the actions should proceed in a single court, and
the panel agrees that centralization at this time will allow the
parties and the judiciary to more quickly realize such
efficiencies. The District of New Mexico is an appropriate
transferee district for this litigation as five related actions are
pending in this district, which bears a factual nexus to the
litigation, given that plaintiffs contend that much of defendants'
shale oil production occurs in New Mexico. This district also is
relatively convenient for several defendants, which have
headquarters in nearby Texas and Oklahoma, adds the panel.
A full-text copy of the court's August 1, 2024 transfer order is
available at
https://www.jpml.uscourts.gov/sites/jpml/files/MDL-3119-Transfer_Order-7-24.pdf
MDL 3120: Consolidation of 28 Benzene Toxicity Suits Denied
-----------------------------------------------------------
Judge Karen K. Caldwell, Chairperson of the U.S. Judicial Panel on
Multidistrict Litigation denied the transfer of 28 putative class
actions pending in 10 districts for the centralization of
litigation in either the Northern District of California, the
Central District of California, or the Eastern District of
California under "In re: Benzoyl Peroxide Marketing, Sales
Practices and Products Liability Litigation," MDL No. 3120.
These actions were brought shortly after testing laboratory
Valisure filed a citizen petition with the U.S. Food and Drug
Administration, stating that its testing had shown benzoyl peroxide
in acne products degrades into benzene, a known human carcinogen,
under certain conditions. Plaintiffs are purchasers of such acne
products who allege that they would not have purchased the products
had they known that their use posed a risk of exposure to benzene.
They assert claims for violation of state consumer protection laws,
along with, variously, claims for breach of express or implied
warranty, fraudulent or negligent misrepresentation, and unjust
enrichment. The actions will present several common issues of
fact—primarily whether benzoyl peroxide degrades into benzene,
under what conditions, and, if it does create benzene, whether
harmful levels of benzene are produced.
A number of considerations, though, weigh against centralization,
rules the panel. All but one of the suits were brought against an
individual defendant or group of related defendants and involve a
single product line. At least twelve different defendants or
defendant groups are named in the 35 total actions, yet no
defendant group was sued in more than six actions, and four
defendants have been sued in only one action. Defendants' products
vary with respect to their formulations, the quantity of benzoyl
peroxide they contain, how the products are packaged and stored,
and how they are labeled and marketed. Discovery as to any testing
done by defendants also will be defendant specific.
Thus, the panel concluded that centralization is not necessary for
the convenience of the parties and witnesses or to further the just
and efficient conduct of the litigation.
A full-text copy of the court's Augsut 1, 2024 order is available
at
https://www.jpml.uscourts.gov/sites/jpml/files/MDL-3120-Order_Denying_Transfer-7-24.pdf
MDL 3121: 6 Suits Consolidated in Healthcare Reimbursement Dispute
------------------------------------------------------------------
In the multi-district action captioned "In re: Multiplan Health
Insurance Provider Litigation," MDL No. 3121, Judge Karen K.
Caldwell, Chairperson of the U.S. Judicial Panel on Multidistrict
Litigation transfers three cases from the U.S. District Court for
the Northern District of Illinois, two from the Southern District
of New York and one from the Northern District of California, all
to the Northern District of Illinois and, with the consent of that
court, assigned them to Judge Matthew F. Kennelly for coordinated
or consolidated pretrial proceedings.
The actions involve common questions of fact arising from an
alleged conspiracy to fix, suppress, and stabilize reimbursement
rates paid to healthcare providers for out-of-network healthcare
services in the U.S. in violation of the Sherman Act.
Centralization will eliminate duplicative discovery; prevent
inconsistent pretrial rulings, particularly as to class
certification; and conserve the resources of the parties, their
counsel and the judiciary, rules the panel. The Northern District
of Illinois is an appropriate transferee district for this
litigation. Six actions are pending in that district, which has the
support of both some plaintiffs and all defendants. Two defendants
are headquartered in Illinois, and several others are located
nearby, the panel adds.
A full-text copy of the court's August 1, 2024 transfer order is
available at
https://www.jpml.uscourts.gov/sites/jpml/files/MDL-3121-Transfer_Order-7-24.pdf
MERRILL LYNCH: Court Awards $102MM in Attys.' Fees in IPERS Suit
----------------------------------------------------------------
Judge Katherine Polk Failla of the U.S. District Court for the
Southern District of New York awards attorneys' fees equal to
$102,200,000 in the lawsuit captioned IOWA PUBLIC EMPLOYEES'
RETIREMENT SYSTEM; LOS ANGELES COUNTY EMPLOYEES RETIREMENT
ASSOCIATION; ORANGE COUNTY EMPLOYEES RETIREMENT SYSTEM; SONOMA
COUNTY EMPLOYEES' RETIREMENT ASSOCIATION; and TORUS CAPITAL, LLC,
on behalf of themselves and all others similarly situated,
Plaintiffs v. MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED;
MERRILL LYNCH L.P. HOLDINGS, INC.; MERRILL LYNCH PROFESSIONAL
CLEARING CORP.; CREDIT SUISSE AG; CREDIT SUISSE SECURITIES (USA)
LLC; CREDIT SUISSE FIRST BOSTON NEXT FUND, INC.; CREDIT SUISSE
PRIME SECURITIES SERVICES (USA) LLC; GOLDMAN, SACHS & CO. LLC;
GOLDMAN SACHS EXECUTION & CLEARING, L.P.; J.P. MORGAN SECURITIES
LLC; J.P. MORGAN PRIME, INC.; J.P. MORGAN STRATEGIC SECURITIES
LENDING CORP.; J.P. MORGAN CHASE BANK, N.A.; MORGAN STANLEY & CO.
LLC; MORGAN STANLEY DISTRIBUTION, INC.; PRIME DEALER SERVICES
CORP.; STRATEGIC INVESTMENTS I INC.; UBS AG; UBS AMERICAS INC.; UBS
SECURITIES LLC; UBS FINANCIAL SERVICES INC.; EQUILEND LLC; EQUILEND
EUROPE LIMITED; and EQUILEND HOLDINGS LLC, Defendants, Case No.
1:17-cv-06221-KPF-SLC (S.D.N.Y.).
The matter came before the Court for hearing pursuant to
Plaintiffs' application for an award of attorneys' fees in their
Motion for Attorneys' Fees, Litigation Expenses, and Service
Awards.
The Plaintiffs are Iowa Public Employees' Retirement System
("IPERS"); Los Angeles County Employees Retirement Association;
Orange County Employees Retirement System; Sonoma County Employees'
Retirement Association; and Torus Capital, LLC.
The Plaintiffs allege that the Defendants, the dominant
intermediary banks in the U.S. stock loan market, conspired to
block and boycott new offerings that would have increased
competition and improved the efficiency and transparency of the
market, in violation of Section 1 of the Sherman Act, 15 U.S.C.
Section 1. The purpose and effect of this alleged conspiracy was to
maintain supracompetitive "spreads" between beneficial owners of
stock, who lend their stock out for a fee, and borrowers of stock,
who generally sell the borrowed shares as part of a short
transaction.
As a result, the Plaintiffs allege Class Members were damaged by
receiving lower fees for lending shares of stock and/or paying
higher fees for borrowing stock than they would have if the
Defendants had not conspired to block efficient new developments in
the market. The lawsuit also alleges that the Defendants were
unjustly enriched under common law.
Judge Failla notes that this Order incorporates by reference the
definitions and terms of the Credit Suisse Settlement Agreement,
the New Settlement Agreement, and all capitalized terms used, but
not defined here, will have the same meanings as set forth in the
Settlement Agreements.
The Court has jurisdiction over the subject matter of the Action,
and for purposes of enforcing and administering the Settlement, the
Court has jurisdiction over the parties to the action, including
members of the Settlement Class.
Judge Failla says notice of the Plaintiffs' Motion for Attorneys'
Fees, Litigation Expenses, and Service Awards was given to
potential members of the Settlement Classes in a reasonable manner,
and such Notice complies with Rule 23 of the Federal Rules of Civil
Procedure, due process requirements, and any other applicable law,
as it constituted the best notice practicable under the
circumstances, and constituted due and sufficient notice to persons
and entities entitled thereto.
Members of the Settlement Classes were given the opportunity to
object to the Motion for Attorneys' Fees, Litigation Expenses, and
Service Awards in compliance with Rule 23 of the Federal Rules of
Civil Procedure. No objections to the Motion have been made.
The Court grants the Motion for Attorneys' Fees, Litigation
Expenses, and Service Awards with respect to attorneys' fees as
described in this Order.
The Court awards attorneys' fees equal to $102,200,000, of which
13.97% will be drawn from the Credit Suisse Settlement Fund and
86.03% of which will be drawn from the New Settlement Fund
(collectively, the "Settlement Funds"). The Court also awards
interest on such attorneys' fees at the same rate as the earnings
in the respective Settlement Funds, accruing from the inception of
each of the Settlement Funds. Co-Lead Counsel is authorized to
allocate these awards among themselves and with other firms that
assisted them in such manner as, in their judgment, reflects the
contributions of each firm to the prosecution and settlement of the
Action.
In making this award of fees to Co-Lead Counsel, the Court has
considered and found that, among other things, (a) The Credit
Suisse Settlement created a fund of $81,000,000 in cash, and the
New Settlement created a Fund of $499,008,750 in cash, for a total
of $580,008,750 in total cash settlements in the Action and secured
valuable non-monetary relief; (b) Numerous members of the
Settlement Classes who have submitted valid Proof of Claim and
Release Forms will benefit from the Settlements achieved by Co-Lead
Counsel; and (c) The amount of attorneys' fees is appropriate to
the specific circumstances of this Action, and consistent with
awards in similar cases.
This fee award is independent of the Court's consideration of the
fairness, reasonability, and adequacy of any of the settlements
reached in this Action, and is also independent of the Court's
consideration of the Plans of Allocation, expense award, and
service awards. Any appeal or challenge affecting the Court's
approval regarding the current fee award will in no way disturb or
affect the finality of the final judgments entered with respect to
the Settlements, the Plans of Allocation, the expense awards, or
the service awards.
The fee award and interest awarded here will constitute a final
order and will be payable to Co-Lead Counsel from the Settlement
Funds upon entry of the final judgment related to each Settlement.
In the event that one or both Settlements are terminated or do not
become Final or the Effective Date does not occur in accordance
with the terms of their respective Settlement Agreements, this
Order will be rendered null and void to the extent provided in each
respective Agreement and will be vacated as to that Agreement.
A full-text copy of the Court's Order dated Sept. 11, 2024, is
available at https://tinyurl.com/47cf6b3v from PacerMonitor.com.
MERRILL LYNCH: Court Awards $18.8-Mil. in Expenses in IPERS Suit
----------------------------------------------------------------
Judge Katherine Polk Failla of the U.S. District Court for the
Southern District of New York awards litigation expenses equal to
$18,845,997 in the lawsuit entitled IOWA PUBLIC EMPLOYEES'
RETIREMENT SYSTEM; LOS ANGELES COUNTY EMPLOYEES RETIREMENT
ASSOCIATION; ORANGE COUNTY EMPLOYEES RETIREMENT SYSTEM; SONOMA
COUNTY EMPLOYEES' RETIREMENT ASSOCIATION; and TORUS CAPITAL, LLC,
on behalf of themselves and all others similarly situated,
Plaintiffs v. MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED;
MERRILL LYNCH L.P. HOLDINGS, INC.; MERRILL LYNCH PROFESSIONAL
CLEARING CORP.; CREDIT SUISSE AG; CREDIT SUISSE SECURITIES (USA)
LLC; CREDIT SUISSE FIRST BOSTON NEXT FUND, INC.; CREDIT SUISSE
PRIME SECURITIES SERVICES (USA) LLC; GOLDMAN, SACHS & CO. LLC;
GOLDMAN SACHS EXECUTION & CLEARING, L.P.; J.P. MORGAN SECURITIES
LLC; J.P. MORGAN PRIME, INC.; J.P. MORGAN STRATEGIC SECURITIES
LENDING CORP.; J.P. MORGAN CHASE BANK, N.A.; MORGAN STANLEY & CO.
LLC; MORGAN STANLEY DISTRIBUTION, INC.; PRIME DEALER SERVICES
CORP.; STRATEGIC INVESTMENTS I INC.; UBS AG; UBS AMERICAS INC.; UBS
SECURITIES LLC; UBS FINANCIAL SERVICES INC.; EQUILEND LLC; EQUILEND
EUROPE LIMITED; and EQUILEND HOLDINGS LLC, Defendants, Case No.
1:17-cv-06221-KPF-SLC (S.D.N.Y.).
The matter came before the Court for hearing pursuant to the
Plaintiffs' application for an award of litigation expenses in
their Motion for Attorneys' Fees, Litigation Expenses, and Service
Awards. The Plaintiffs are Iowa Public Employees' Retirement System
("IPERS"); Los Angeles County Employees Retirement Association;
Orange County Employees Retirement System; Sonoma County Employees'
Retirement Association; and Torus Capital, LLC.
The Plaintiffs allege that the Defendants, the dominant
intermediary banks in the U.S. stock loan market, conspired to
block and boycott new offerings that would have increased
competition and improved the efficiency and transparency of the
market, in violation of Section 1 of the Sherman Act, 15 U.S.C.
Section 1. The purpose and effect of this alleged conspiracy was to
maintain supracompetitive "spreads" between beneficial owners of
stock, who lend their stock out for a fee, and borrowers of stock,
who generally sell the borrowed shares as part of a short
transaction.
As a result, the Plaintiffs allege Class Members were damaged by
receiving lower fees for lending shares of stock and/or paying
higher fees for borrowing stock than they would have if the
Defendants had not conspired to block efficient new developments in
the market. The lawsuit also alleges that the Defendants were
unjustly enriched under common law.
Judge Failla notes that this Order incorporates by reference the
definitions and terms of the Credit Suisse Settlement Agreement,
the New Settlement Agreement, and all capitalized terms used, but
not defined here, will have the same meanings as set forth in the
Settlement Agreements.
The Court has jurisdiction over the subject matter of the Action,
and for purposes of enforcing and administering the Settlement, the
Court has jurisdiction over the parties to the action, including
members of the Settlement Class.
Judge Failla says notice of the Plaintiffs' Motion for Attorneys'
Fees, Litigation Expenses, and Service Awards was given to
potential members of the Settlement Classes in a reasonable manner,
and such Notice complies with Rule 23 of the Federal Rules of Civil
Procedure, due process requirements, and any other applicable law,
as it constituted the best notice practicable under the
circumstances, and constituted due and sufficient notice to persons
and entities entitled thereto.
Members of the Settlement Classes were given the opportunity to
object to the Motion for Attorneys' Fees, Litigation Expenses, and
Service Awards in compliance with Rule 23 of the Federal Rules of
Civil Procedure. No objections to the Motion have been made.
The Court grants the Motion for Attorneys' Fees, Litigation
Expenses, and Service Awards with respect to litigation expenses as
described here.
The Court awards litigation expenses equal to $18,845,997.91, which
will be drawn proportionally from each Settlement Fund associated
with a Settlement that becomes final. The Court also awards
interest on such litigation expenses at the same rate as the
earnings in the respective Settlement Funds, accruing from the
inception of each of the Settlement Funds. Co-Lead Counsel is
authorized to allocate these awards among themselves and with other
firms that assisted them in such manner as, in their judgment,
reflects the expenses reasonably borne in support of the litigation
by each firm.
In making this award of litigation expenses to Co-Lead Counsel, the
Court has considered and found that, among other things, (a) The
Credit Suisse Settlement created a fund of $81,000,000 in cash, and
the New Settlement created a Fund of $499,008,750 in cash, for a
total of $580,008,750 in total cash settlements in the Action, and
secured valuable non-monetary relief; (b) Numerous members of the
Settlement Classes who have submitted valid Proof of Claim and
Release Forms will benefit from the Settlements achieved by Co-Lead
Counsel; (c) The expenses sought by Co-Lead Counsel are reasonable
and were necessarily incurred; and (d) The amount of litigation
expenses awarded is appropriate to the specific circumstances of
this Action, and consistent with awards in similar cases.
This expense award is independent of the Court's consideration of
the fairness, reasonability, and adequacy of any of the settlements
reached in this Action, and is also independent of the Court's
consideration of the Plans of Allocation, fee award, and service
awards. Any appeal or challenge affecting this Court's approval
regarding the current award of litigation expenses will in no way
disturb or affect the finality of the final judgments entered with
respect to the Settlements, the Plans of Allocation, the fee
awards, or the service awards.
The expense award and interest awarded here will constitute a final
order and will be payable to Co-Lead Counsel from the Settlement
Funds upon entry of the final judgment related to each Settlement.
In the event that one or both Settlements are terminated or do not
become Final or the Effective Date does not occur in accordance
with the terms of their respective Settlement Agreements, this
Order will be rendered null and void to the extent provided in each
respective Agreement and will be as to that Agreement.
A full-text copy of the Court's Order dated Sept. 11, 2024, is
available at https://tinyurl.com/4ku273pa from PacerMonitor.com.
MERRILL LYNCH: Court Issues Final Judgment & Order in IPERS Suit
----------------------------------------------------------------
Judge Katherine Polk Failla of the U.S. District Court for the
Southern District of New York issued a Final Judgment and Order of
Dismissal approving a settlement agreement among the Settling
Parties in the lawsuit styled IOWA PUBLIC EMPLOYEES' RETIREMENT
SYSTEM; LOS ANGELES COUNTY EMPLOYEES RETIREMENT ASSOCIATION; ORANGE
COUNTY EMPLOYEES RETIREMENT SYSTEM; SONOMA COUNTY EMPLOYEES'
RETIREMENT ASSOCIATION; and TORUS CAPITAL, LLC, on behalf of
themselves and all others similarly situated, Plaintiffs v. MERRILL
LYNCH, PIERCE, FENNER & SMITH INCORPORATED; MERRILL LYNCH L.P.
HOLDINGS, INC.; MERRILL LYNCH PROFESSIONAL CLEARING CORP.; CREDIT
SUISSE AG; CREDIT SUISSE SECURITIES (USA) LLC; CREDIT SUISSE FIRST
BOSTON NEXT FUND, INC.; CREDIT SUISSE PRIME SECURITIES SERVICES
(USA) LLC; GOLDMAN, SACHS & CO. LLC; GOLDMAN SACHS EXECUTION &
CLEARING, L.P.; J.P. MORGAN SECURITIES LLC; J.P. MORGAN PRIME,
INC.; J.P. MORGAN STRATEGIC SECURITIES LENDING CORP.; J.P. MORGAN
CHASE BANK, N.A.; MORGAN STANLEY & CO. LLC; MORGAN STANLEY
DISTRIBUTION, INC.; PRIME DEALER SERVICES CORP.; STRATEGIC
INVESTMENTS I INC.; UBS AG; UBS AMERICAS INC.; UBS SECURITIES LLC;
UBS FINANCIAL SERVICES INC.; EQUILEND LLC; EQUILEND EUROPE LIMITED;
and EQUILEND HOLDINGS LLC, Defendants, Case No.
1:17-cv-06221-KPF-SLC (S.D.N.Y.).
The matter came before the Court for hearing pursuant to the
Plaintiffs' application for final approval of the settlement set
forth in the Stipulation and Agreement of Settlement with the
Goldman Sachs Defendants (Goldman, Sachs & Co. LLC; and Goldman
Sachs Execution & Clearing, L.P. (merged into Goldman, Sachs & Co.
LLC as of June 12, 2017)); the JPMorgan Defendants (J.P. Morgan
Securities LLC; J.P. Morgan Prime, Inc.; J.P. Morgan Strategic
Securities Lending Corp.; and JPMorgan Chase Bank, N.A.); the
Morgan Stanley Defendants (Morgan Stanley; Morgan Stanley Capital
Management, LLC; Morgan Stanley & Co. LLC; Morgan Stanley
Distribution, Inc.; Prime Dealer Services Corp.; and Strategic
Investments I, Inc.); the UBS Defendants (UBS AG; UBS Americas
Inc.; UBS Securities LLC; and UBS Financial Services Inc.); and the
EquiLend Defendants (EquiLend LLC; EquiLend Europe Limited; and
EquiLend Holdings LLC) (all such Defendants together, the "Settling
Defendants"), (the "Settling Defendants" and with Plaintiffs the
"Settling Parties"), dated Aug. 22, 2023 (the "Settlement
Agreement").
The Plaintiffs are Iowa Public Employees' Retirement System
("IPERS"); Los Angeles County Employees Retirement Association;
Orange County Employees Retirement System; Sonoma County Employees'
Retirement Association; and Torus Capital, LLC.
The Plaintiffs allege that the Defendants, the dominant
intermediary banks in the U.S. stock loan market, conspired to
block and boycott new offerings that would have increased
competition and improved the efficiency and transparency of the
market, in violation of Section 1 of the Sherman Act, 15 U.S.C.
Section 1. The purpose and effect of this alleged conspiracy was to
maintain supracompetitive "spreads" between beneficial owners of
stock, who lend their stock out for a fee, and borrowers of stock,
who generally sell the borrowed shares as part of a short
transaction.
As a result, the Plaintiffs allege Class Members were damaged by
receiving lower fees for lending shares of stock and/or paying
higher fees for borrowing stock than they would have if the
Defendants had not conspired to block efficient new developments in
the market. The lawsuit also alleges that the Defendants were
unjustly enriched under common law.
The Court finds it has jurisdiction over the subject matter of the
Action and over all parties to the Action, including all Settlement
Class Members, and that the notice provisions of the Class Action
Fairness Act have been satisfied.
Based on the record before the Court, including the Preliminary
Approval Order, the submissions in support of the settlement
between the Plaintiffs, for themselves individually and on behalf
of each Settlement Class Member in the Action, and the Settling
Defendants, and any objections and responses thereto, pursuant to
Rules 23(a) and 23(b)(3) of the Federal Rules of Civil Procedure,
the Court certifies solely for settlement purposes the following
Settlement Class:
all Persons who, directly or through an agent, entered into
Stock Loan Transactions with the Prime Broker Defendants,
direct or indirect parents, subsidiaries, or divisions of
the Prime Broker Defendants in the United States from
Jan. 7, 2009, through the Execution Date (the "Settlement
Class Period"), inclusive. Excluded from the Settlement
Class are Defendants and their employees, affiliates,
parents, and subsidiaries, whether or not named in the
Amended Complaint, entities which previously requested
exclusion from any Class in this Action, and the United
States Government, provided, however, that Investment
Vehicles will not be excluded from the definition of the
Settlement Class.
These entities are Citadel LLC, Two Sigma Investments, PDT
Partners, Renaissance Technologies LLC, TGS Management, Voloridge
Investment Management, and the D.E. Shaw Group and their corporate
parents, subsidiaries, and wholly owned affiliates (the "Opt-out
Entities").
The Court's certification of the Settlement Class is without
prejudice to, or waiver of, the rights of any non-settling
Defendant to contest certification of any non-settlement class
proposed in this Action. The Court's findings in this Final
Judgment and Order of Dismissal will have no effect on the Court's
ruling on any motion to certify any class in the Action, or appoint
class representatives, and no party may cite or refer to the
Court's certification of the Settlement Class as binding or
persuasive authority with respect to any motion to certify such
class or appoint class representatives.
Judge Failla finds that the requirements of Rules 23(a) and
23(b)(3) of the Federal Rules of Civil Procedure have been
satisfied, solely for settlement purposes.
The law firms of Quinn Emanuel Urquhart & Sullivan, LLP, and Cohen
Milstein Sellers & Toll PLLC, are appointed, solely for settlement
purposes, as Co-Lead Counsel for the Settlement Class. Plaintiffs
Iowa Public Employees' Retirement System; Los Angeles County
Employees Retirement Association; Orange County Employees
Retirement System; Sonoma County Employees' Retirement Association;
and Torus Capital, LLC are appointed, solely for settlement
purposes, as class representatives for the Settlement Class.
Pursuant to Rule 23(e) of the Federal Rules of Civil Procedure, the
Court grants final approval of the Settlement set forth in the
Settlement Agreement on the basis that the settlement is fair,
reasonable, and adequate as to, and in the best interests of, all
Settlement Class Members, and is in compliance with all applicable
requirements of the Federal Rules of Civil Procedure.
Except as to any individual claim of those Persons (identified in
Exhibit 1 hereto) who have validly and timely requested exclusion
from the Settlement Class ("Opt-Outs"), the Action and all claims
contained therein, as well as all of the Released Class Claims,
against Settling Defendants and Released Settling Defendant Parties
by the Plaintiffs and Releasing Class Parties are dismissed with
prejudice. The Settling Parties are to bear their own costs, except
as otherwise provided in the Settlement Agreement and the orders of
the Court.
The lone objection made to the Settlement Agreement, docket entry
678, is overruled. Judge Failla opines that it does not
meaningfully call into question whether the settlement should be
approved under the standards used in this Circuit.
Without further Court order, the Settling Parties may agree to
reasonable extensions of time to carry out any of the provisions of
the Settlement Agreement.
Judge Failla directs the Clerk of the Court to enter this Final
Judgment and Order of Dismissal pursuant to Rule 54(b) of the
Federal Rules of Civil Procedure immediately.
A full-text copy of the Court's Final Judgment and Order dated
Sept. 11, 2024, is available at https://tinyurl.com/yckbtez6 from
PacerMonitor.com.
MERRILL LYNCH: IPERS and Other Named Plaintiffs Awarded $100K Each
------------------------------------------------------------------
Judge Katherine Polk Failla of the U.S. District Court for the
Southern District of New York approves the payment of service
awards for $100,000 to each of the five named Plaintiffs in the
lawsuit titled IOWA PUBLIC EMPLOYEES' RETIREMENT SYSTEM; LOS
ANGELES COUNTY EMPLOYEES RETIREMENT ASSOCIATION; ORANGE COUNTY
EMPLOYEES RETIREMENT SYSTEM; SONOMA COUNTY EMPLOYEES' RETIREMENT
ASSOCIATION; and TORUS CAPITAL, LLC, on behalf of themselves and
all others similarly situated, Plaintiffs v. MERRILL LYNCH, PIERCE,
FENNER & SMITH INCORPORATED; MERRILL LYNCH L.P. HOLDINGS, INC.;
MERRILL LYNCH PROFESSIONAL CLEARING CORP.; CREDIT SUISSE AG; CREDIT
SUISSE SECURITIES (USA) LLC; CREDIT SUISSE FIRST BOSTON NEXT FUND,
INC.; CREDIT SUISSE PRIME SECURITIES SERVICES (USA) LLC; GOLDMAN,
SACHS & CO. LLC; GOLDMAN SACHS EXECUTION & CLEARING, L.P.; J.P.
MORGAN SECURITIES LLC; J.P. MORGAN PRIME, INC.; J.P. MORGAN
STRATEGIC SECURITIES LENDING CORP.; J.P. MORGAN CHASE BANK, N.A.;
MORGAN STANLEY & CO. LLC; MORGAN STANLEY DISTRIBUTION, INC.; PRIME
DEALER SERVICES CORP.; STRATEGIC INVESTMENTS I INC.; UBS AG; UBS
AMERICAS INC.; UBS SECURITIES LLC; UBS FINANCIAL SERVICES INC.;
EQUILEND LLC; EQUILEND EUROPE LIMITED; and EQUILEND HOLDINGS LLC,
Defendants, Case No. 1:17-cv-06221-KPF-SLC (S.D.N.Y.).
The matter came before the Court for hearing pursuant to the
Plaintiffs' application for Plaintiff service awards in their
Motion for Attorneys' Fees, Litigation Expenses, and Service
Awards. The Plaintiffs are Iowa Public Employees' Retirement System
("IPERS"); Los Angeles County Employees Retirement Association;
Orange County Employees Retirement System; Sonoma County Employees'
Retirement Association; and Torus Capital, LLC.
The Plaintiffs allege that the Defendants, the dominant
intermediary banks in the U.S. stock loan market, conspired to
block and boycott new offerings that would have increased
competition and improved the efficiency and transparency of the
market, in violation of Section 1 of the Sherman Act, 15 U.S.C.
Section 1. The purpose and effect of this alleged conspiracy was to
maintain supracompetitive "spreads" between beneficial owners of
stock, who lend their stock out for a fee, and borrowers of stock,
who generally sell the borrowed shares as part of a short
transaction.
As a result, the Plaintiffs allege Class Members were damaged by
receiving lower fees for lending shares of stock and/or paying
higher fees for borrowing stock than they would have if the
Defendants had not conspired to block efficient new developments in
the market. The lawsuit also alleges that the Defendants were
unjustly enriched under common law.
Judge Failla notes that this Order incorporates by reference the
definitions and terms of the Credit Suisse Settlement Agreement,
the New Settlement Agreement, and all capitalized terms used, but
not defined here, will have the same meanings as set forth in the
Settlement Agreements.
The Court has jurisdiction over the subject matter of the Action,
and for purposes of enforcing and administering the Settlement, the
Court has jurisdiction over the parties to the action, including
members of the Settlement Class.
Notice of the Plaintiffs' Motion for Attorneys' Fees, Litigation
Expenses, and Service Awards was given to potential members of the
Settlement Classes in a reasonable manner, and such Notice complies
with Rule 23 of the Federal Rules of Civil Procedure, due process
requirements, and any other applicable law, as it constituted the
best notice practicable under the circumstances, and constituted
due and sufficient notice to persons and entities entitled
thereto.
Members of the Settlement Classes were given the opportunity to
object to the Motion for Attorneys' Fees, Litigation Expenses, and
Service Awards in compliance with Rule 23 of the Federal Rules of
Civil Procedure. No objections to the Motion have been made.
The Court grants the Motion for Attorneys' Fees, Litigation
Expenses, and Service Awards with respect to service awards as
described here.
The Court approves the payment of service awards in the amount of
$100,000 to each of the five named Plaintiffs in this Action
(totaling $500,000): Iowa Public Employees' Retirement System; Los
Angeles County Employees Retirement Association; Orange County
Employees Retirement System; Sonoma County Employees' Retirement
Association; and Torus Capital, LLC. Of each award, 13.97% will be
drawn from the Credit Suisse Settlement Fund and 86.03% will be
drawn from the New Settlement Fund. The Court also awards interest
on such service awards at the same rate as the earnings in the
respective Settlement Funds, accruing from the inception of each of
the Settlement Funds.
In making these service awards, the Court has considered and found
that, among other things, (a) The Credit Suisse Settlement created
a fund of $81,000,000 in cash, and the New Settlement created a
Fund of $499,008,750 in cash, for a total of $580,008,750 in total
cash settlements in the Action, and secured valuable non-monetary
relief; (b) Numerous members of the Settlement Classes who have
submitted valid Proof of Claim and Release Forms will benefit from
the Settlements achieved by Plaintiffs and Co-Lead Counsel; (c) The
named Plaintiffs undertook risk in pursuing this suit against
investment banks that provide them with essential services; and (d)
The amount of service awards paid is appropriate to the specific
circumstances of this Action, and consistent with awards in similar
cases.
Judge Failla points out that the service awards are independent of
the Court's consideration of the fairness, reasonability, and
adequacy of any of the settlements reached in this Action, and is
also independent of the Court's consideration of the Plans of
Allocation, fee award, and expense awards. Any appeal or challenge
affecting this Court's approval regarding the current award of
service awards will in no way disturb or affect the finality of the
final judgments entered with respect to the Settlements, the Plans
of Allocation, the fee awards, or the expense awards.
In the event that one or both Settlements are terminated or do not
become Final or the Effective Date does not occur in accordance
with the terms of their respective Settlement Agreements, this
Order will be rendered null and void to the extent provided in each
respective Agreement and will be vacated as to that Agreement.
A full-text copy of the Court's Order dated Sept. 11, 2024, is
available at https://tinyurl.com/3ts767fa from PacerMonitor.com.
MERRILL LYNCH: Plan of Allocation OK'd for Credit Suisse Settlement
-------------------------------------------------------------------
Judge Katherine Polk Failla of the U.S. District Court for the
Southern District of New York approves the Plan of Allocation for
the Credit Suisse Settlement Agreement in the lawsuit titled IOWA
PUBLIC EMPLOYEES' RETIREMENT SYSTEM; LOS ANGELES COUNTY EMPLOYEES
RETIREMENT ASSOCIATION; ORANGE COUNTY EMPLOYEES RETIREMENT SYSTEM;
SONOMA COUNTY EMPLOYEES' RETIREMENT ASSOCIATION; and TORUS CAPITAL,
LLC, on behalf of themselves and all others similarly situated,
Plaintiffs v. MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED;
MERRILL LYNCH L.P. HOLDINGS, INC.; MERRILL LYNCH PROFESSIONAL
CLEARING CORP.; CREDIT SUISSE AG; CREDIT SUISSE SECURITIES (USA)
LLC; CREDIT SUISSE FIRST BOSTON NEXT FUND, INC.; CREDIT SUISSE
PRIME SECURITIES SERVICES (USA) LLC; GOLDMAN, SACHS & CO. LLC;
GOLDMAN SACHS EXECUTION & CLEARING, L.P.; J.P. MORGAN SECURITIES
LLC; J.P. MORGAN PRIME, INC.; J.P. MORGAN STRATEGIC SECURITIES
LENDING CORP.; J.P. MORGAN CHASE BANK, N.A.; MORGAN STANLEY & CO.
LLC; MORGAN STANLEY DISTRIBUTION, INC.; PRIME DEALER SERVICES
CORP.; STRATEGIC INVESTMENTS I INC.; UBS AG; UBS AMERICAS INC.; UBS
SECURITIES LLC; UBS FINANCIAL SERVICES INC.; EQUILEND LLC; EQUILEND
EUROPE LIMITED; and EQUILEND HOLDINGS LLC, Defendants, Case No.
1:17-cv-06221-KPF-SLC (S.D.N.Y.).
The matter came before the Court for hearing pursuant to the
Plaintiffs' application for final approval of the Plan of
Allocation for the Credit Suisse Settlement Agreement preliminarily
approved by the Court on March 8, 2024.
The Plaintiffs are Iowa Public Employees' Retirement System
("IPERS"); Los Angeles County Employees Retirement Association;
Orange County Employees Retirement System; Sonoma County Employees'
Retirement Association; and Torus Capital, LLC.
The Plaintiffs allege that the Defendants, the dominant
intermediary banks in the U.S. stock loan market, conspired to
block and boycott new offerings that would have increased
competition and improved the efficiency and transparency of the
market, in violation of Section 1 of the Sherman Act, 15 U.S.C.
Section 1. The purpose and effect of this alleged conspiracy was to
maintain supracompetitive "spreads" between beneficial owners of
stock, who lend their stock out for a fee, and borrowers of stock,
who generally sell the borrowed shares as part of a short
transaction.
As a result, the Plaintiffs allege Class Members were damaged by
receiving lower fees for lending shares of stock and/or paying
higher fees for borrowing stock than they would have if the
Defendants had not conspired to block efficient new developments in
the market. The lawsuit also alleges that the Defendants were
unjustly enriched under common law.
Judge Failla notes that this Order incorporates by reference the
definitions and terms of the Credit Suisse Settlement Agreement,
and all capitalized terms used, but not defined here, will have the
same meanings as set forth in the Credit Suisse Settlement
Agreement.
Pursuant to and in full compliance with Rule 23 of the Federal
Rules of Civil Procedure, the Court finds and concludes that due
and adequate notice was directed to all persons, who are members of
the Settlement Class, who could be identified with reasonable
effort, advising them of the Plan of Allocation and of their right
to object thereto, and a full and fair opportunity was accorded to
all persons and entities, who are members of the Settlement Class
with respect to the Plan of Allocation.
The Court finds that the Plan of Allocation is fair and reasonable
to Settlement Class Members. In particular, the Court finds that
the Plan of Allocation treats Settlement Class Members equitably
relative to each other because it distributes the Net Settlement
Fund to Settlement Class Members, as far as reasonably practicable,
in proportion to a reasonable estimation of the value of each
Settlement Class Member's claims, taking into account salient legal
and financial features of the Stock Loan Transactions underlying
the claims.
While one objection was filed with respect to the Credit Suisse
Settlement Agreement, docket entry 678, the objector did not oppose
the Plan of Allocation, specifically. Any argument challenging the
Plan of Allocation was, thus, waived. In any event, the Court would
have overruled the objection even if re-stated as a challenge to
the Plan of Allocation, and in the alternative does so here. The
Plan of Allocation treats Settlement Class Members fairly and
reasonably.
Accordingly, the Court finds and concludes that the Plan of
Allocation for the Credit Suisse Settlement, as set forth in the
Notice, is, in all respects, fair and reasonable, and the Court
approves the Plan of Allocation.
The Court's consideration and approval of the Plan of Allocation
for the Credit Suisse Settlement Agreement is independent of the
Court's consideration and approval of any settlement, the Plan of
Allocation for the New Settlement Agreement, the fee awards, the
expense awards, and the service awards.
Any appeal or challenge affecting this Court's approval regarding
the Court's approval of the Plan of Allocation for the Credit
Suisse Settlement Agreement will in no way disturb or affect the
finality of the final judgments entered with respect to the
Settlements, the Plan of Allocation for the New Settlement
Agreement, the fee awards, the expense awards, or the service
awards.
A full-text copy of the Court's Order dated Sept. 11, 2024, is
available at https://tinyurl.com/2p8banhf from PacerMonitor.com.
META PLATFORMS: Loses Bid to Dismiss Hartman, et al. BIPA Suit
--------------------------------------------------------------
In the class action lawsuit captioned as REBECCA HARTMAN, JOSEPH
TURNER, R.H., a Minor, by and through her Guardian and Next of
Friend REBECCA HARTMAN, and E.T., a Minor, by and through his
Guardian and Next of Friend JOSEPH TURNER, on behalf of themselves
and all other persons similarly situated known and unknown,
Plaintiffs, Chief Judge Nancy J. Rosenstengel of the United States
District Court for the Southern District of Illinois denied Meta's
motion to dismiss the complaint.
Plaintiffs allege that Defendant Meta Platforms, Inc.violated the
Illinois Biometric Information Privacy Act, 740 ILCS 14/1, et seq.,
by improperly collecting and possessing biometric identifiers and
information through its Facebook Messenger and Messenger Kids
applications. Plaintiffs' theory is that Meta collects peoples'
"face geometries" when they use the Messenger Applications' filters
and effects (e.g., bunny ears and flower crowns), and that this
practice fails to comply with BIPA's requirements. Plaintiffs bring
this action on behalf of themselves and other Illinois citizens
whose face geometries were allegedly collected between June 28,
2018, and the date of judgment in this case.
Meta contests the viability of Plaintiffs' BIPA claims on two
grounds. First, it argues that the information at issue is not
"biometric" because it is incapable of identifying individual users
and people. Second, it contends that Plaintiffs fail to allege that
Meta "collected" and "possessed" the information at issue under
sections 15(b) and 15(a) respectively.
Meta argues that the facial scans it allegedly generated are not
covered under BIPA because they are not unique to individual users
and thus incapable of identifying them.
Meta also offers a second argument in support of its contention
that the information at issue is incapable of identifying
individual users and people, and thus not covered as "biometric"
data under BIPA. On this point, Meta claims that Plaintiffs did not
provide identifying information that would allow it to match the
alleged facial geometry scans to individual users. Without such
information, Meta argues, it is impossible to identify people whose
face geometry was scanned, regardless of the
uniqueness of the data.
The Court finds Plaintiffs have sufficiently alleged that they
supplied identifying information that Meta could match to their
face geometry scans to identify them. These allegations meet the
minimum plausibility threshold under Rule 12(b)(6), and thus
distinguish this case from Daichendt, where the plaintiffs did not
provide "any information" that could be matched to their face
geometry to reveal their identities, the Court concludes.
So, crediting the truth of Plaintiffs' allegations and drawing all
reasonable inferences in their favor, the Court rejects Meta's
argument that the information at issue is incapable of identifying
individual users and people, and thus not covered under BIPA.
Count I of Plaintiffs' complaint asserts a claim under 740 ILCS
14/15(b), which prohibits private entities from "collect[ing]" or
otherwise obtaining a person's biometric data without their
informed written consent. Count II advances a claim under 740 ILCS
14/15(a), which imposes certain requirements on private entities
"in possession" of peoples' biometric data. Meta contends that
Plaintiffs have failed to state a claim under either section
because the complaint lacks the necessary factual allegations to
suggest that Meta "collect[ed]" or was "in possession" of biometric
data.
According to Meta, Plaintiffs "acknowledge" that the only place
where the information at issue is stored is on users' personal
devices, not on servers or in databases that Meta controls. Thus,
so the argument goes, if the information at issue never leaves a
user's personal device, there is no way Meta could have "collected"
or "possessed" it. And with this concession, Meta argues that
Counts I and II are fatally defective.
But the complaint reveals no such concession, the Court notes. In
fact, it reveals the opposite. Plaintiffs allege that Meta
"collect[ed] the Biometric Data of each child and adult user who
utilize[d] an effect or filter," and stored it locally on users'
devices and on its "servers. And specifically with respect to
biometric data on Meta's servers, Meta retains "exclusive control
over the process by which Biometric Data is harvested and stored."
These allegations refute Meta's claim of an "acknowledge[ment]"
from Plaintiffs that the information at issue is only stored on
users' personal devices, according to the Court.
The allegation that Meta stores Plaintiffs' biometric data on its
servers (which the Court accepts as true) also undercuts Meta's
legal argument that it did not "collect" or "possess" it.
With that, the Court rejects Meta's argument that Plaintiffs'
complaint fails to allege that it "collected" or "possessed" their
biometric data.
A full-text copy of the Court's Order dated September 17, 2024, is
available at https://urlcurt.com/u?l=aBOnN5
MICOR INDUSTRIES: Gonzalez Sues Over Labor Law Breaches
-------------------------------------------------------
Eric Gonzalez, on behalf of himself and other similarly situated
individuals, Plaintiff v. Micor Industries, LLC, Defendant, Case
No. 6:24-cv-01728 (M.D. Fla., September 21, 2024) seeks to recover
monetary damages for unpaid overtime wages under the Fair Labor
Standards Act.
Plaintiff Gonzalez was employed by Defendant as a mechanic assembly
worker from approximately September 1, 2022, to August 14, 2024, or
a total of 102 weeks. Allegedly, the Defendant deducted 30 minutes
of lunchtime daily from Plaintiff's working hours despite Plaintiff
not being able to take a full, uninterrupted lunch. As a result,
the Plaintiff was not paid for three overtime hours weekly. Among
other things, the Plaintiff was paid via direct deposit without
paystubs providing accurate information about the number of hours
worked or wages earned.
Based in Melbourne, FL, Micor Industries, LLC is engaged in the
precision machining industry. [BN]
The Plaintiff is represented by:
Zandro E. Palma, Esq.
THE PALMA LAW GROUP
9100 S. Dadeland Blvd. Suite 1500
Miami, FL 33156
Telephone: (305) 446-1500
Facsimile: (305) 446-1502
E-mail: zep@thepalmalawgroup.com
NATURESTAR NORTH: Court Dismisses Little's 1st Amended Complaint
----------------------------------------------------------------
Judge Jennifer L. Thurston of the U.S. District Court for the
Eastern District of California issued an order granting in part and
denying in part the Defendants' motion to dismiss first amended
complaint in the lawsuit captioned TERRI LITTLE, an individual,
Plaintiff v. NATURESTAR NORTH AMERICA, LLC, a Minnesota Limited
Liability Company; TARGET CORPORATION, a Minnesota Corporation,
Defendants, Case No. 1:22-cv-00232-JLT-EPG (E.D. Cal.).
Plaintiff Terri Little brings this putative class action lawsuit
against Defendants NatureStar North America, LLC, and Target
Corporation for the allegedly false and deceptive business practice
of advertising and marketing single-use tableware and food storage
bags as "compostable," when, according to the Plaintiff, they
contain perfluoralkyl and polyfluroalkyl substances ("PFAS"), which
are not compostable. Pending is the Defendants' Motion to Dismiss,
brought pursuant to Federal Rule of Civil Procedure 12(b)(1),
challenging the Plaintiff's Article III standing to bring this
case.
Compostable products are those that are capable of being broken
down into non-toxic elements, which are beneficial to the soil.
PFAS are highly persistent synthetic fluorinated chemicals, which
have been associated with a variety of negative health effects,
such as cancer, developmental toxicity, and immunotoxicity, and due
to their strong synthetic resistance, PFAS chemicals do not break
down and never become part of usable compost.
Foodware that contains PFAS may contaminate its food items and
leach PFAS from the product into the compost stream, contaminating
the compost itself and the organic matter grown using that
composted material. Therefore, environmentally conscious consumers,
who actively try to avoid purchasing PFAS-contaminated products,
look to private organizations, such as TUV Austria and the
Biodegradable Products Institute ("BPI"), which certify that a
product is compostable.
The Plaintiff is an environmentally conscious consumer and, when
given the choice, opts to purchase products that are compostable,
recyclable, or reusable. In 2021, the Plaintiff visited a Target
store in Hanford, California, and, relying on the Defendants'
representations that certain products were compostable, purchased a
package of 20 9-inch dinner plates, a package of twenty 16 oz.
cereal bowls, one package of quart-sized food storage bags, and one
package of gallon-sized food storage bags ("Products").
Though the Products bore a compostability certification from both
TUV Austria and BPI, when the Plaintiff sent the Products for
independent testing by a third-party laboratory, the test results
indicated the presence of significant amounts of PFAS within the
bowls and plates she purchased, in direct contradiction of the
Defendants' claims that their Products are compostable. The
Plaintiff alleges that other environmentally conscious consumers,
who purchase these Products in the belief that they are compostable
are also unwittingly hindering sustainable composting efforts.
The Plaintiff brings this putative class action lawsuit, in
relevant part, on behalf of: "All persons who purchased the
Products for personal, family or household purposes in California
(either directly or through an agent) during the applicable statute
of limitations period (the 'Class')." The Plaintiff brings six
causes of action for, inter alia, violations of provisions of
California's Unfair Competition Law, Consumers Legal Remedies Act,
the California Public Resources Code, Section 5 of the Federal
Trade Commission Act, and theories of breach of express warranty
and unjust enrichment.
Specifically, the Plaintiff seeks, in part, compensatory and
punitive damages, as well as a Court Order preliminarily and
permanently enjoining the Defendants from conducting their business
through the unlawful, unfair, or fraudulent business acts or
practices, untrue and misleading advertising, and other violations
of law described in the Complaint.
Now pending is the Defendants' Motion to Dismiss the FAC, brought
pursuant to Federal Rule of Civil Procedure 12(b)(1), principally
challenging the Plaintiff's Article III standing to bring this
action. The Defendants attack the Plaintiff's FAC for lack of
standing based on three grounds: the Defendants argue that the
Plaintiff has failed to allege a concrete injury; that the
Plaintiff's injuries are not yet ripe; and that the FAC fails to
support an entitlement to an injunction.
Judge Thurston finds that the Plaintiff has sufficiently pleaded
allegations that conform to the economic theory of injury-in-fact.
Accordingly, the Defendants' motion is denied on this basis.
At least in terms of her allegations, Judge Thurston finds the
Plaintiff has demonstrated that she suffered a cognizable financial
injury in her purchase of allegedly mislabeled compostable
Products. Accordingly, Judge Thurston holds that both
constitutional and prudential ripeness requirements are met, and
hence, the Defendants' motion is denied on this basis.
The Defendants also take issue with the Plaintiff's request for
injunctive relief, arguing that the FAC fails to show any imminent
threat to the Plaintiff, which is entirely implausible in this
situation since her alleged "injury" is complete, and that she,
therefore, lacks standing to pursue this remedy because she does
not allege that she or any of the unnamed plaintiffs will continue
to purchase the Products.
Though the Plaintiff recites the correct standard of
reliance--i.e., that she and the Class cannot rely on the validity
of the information advertised on the Products--she has failed to
bring any allegations of future conduct, Judge Thurston opines. As
such, the Court grants the Defendants' Motion to Dismiss and
dismisses the Plaintiff's request for injunctive relief.
However, because the Court dismisses this claim on Article III
jurisdictional grounds, and because this deficiency is easy to
cure, the Court grants the Plaintiff leave to amend her Complaint.
Based upon the foregoing, the Court rules that:
(1) the Defendants' Motion to Dismiss is granted in part and
denied in part;
(2) the Motion to Dismiss the Plaintiff's requests for
monetary damages is denied; and
(3) the Plaintiff's request for injunctive relief is dismissed
with leave to amend.
The Plaintiff will file the amended complaint or a notice that she
will not file an amended complaint within 21 days. If no amended
complaint is filed, the Defendants will file their answers within
21 days thereafter.
A full-text copy of the Court's Order dated Sept. 11, 2024, is
available at https://tinyurl.com/44k3vymb from PacerMonitor.com.
NBCUNIVERSAL MEDIA: S.D. New York Dismisses TAC in Golden Suit
--------------------------------------------------------------
Judge Paul A. Engelmayer of the U.S. District Court for the
Southern District of New York grants the Defendant's motion to
dismiss the third amended complaint in the lawsuit entitled
SHERHONDA GOLDEN, Plaintiff v. NBCUNIVERSAL MEDIA, LLC, Defendant,
Case No. 1:22-cv-09858-PAE (S.D.N.Y.).
Plaintiff Sherhonda Golden brings this putative class action
against NBCUniversal Media, LLC ("NBCU") alleging violations of the
Video Privacy Protection Act, 18 U.S.C. Section 2710 ("VPPA") and
unjust enrichment. In August 2023, the Court granted NBCU's motion
to dismiss Golden's First Amended Complaint ("FAC") in its
entirety, for failure to state a claim under Federal Rule of Civil
Procedure 12(b)(6) ("August 2023 Decision").
In dismissing the VPPA claim, the Court held, inter alia, that the
FAC fell short of pleading that Golden was a "consumer" within the
meaning of the VPPA. The Court, however, permitted Golden leave to
amend the FAC and replead the VPPA claim for the limited purpose of
adding factual allegations as to the operation of NBCU's mobile app
and email newsletter.
The Court noted that the FAC's sparse allegations on these subjects
make it theoretically possible that such an amendment could fortify
Golden's claim to have been a VPPA subscriber. Golden, thereafter,
amended and filed the Third Amended Complaint ("TAC"), the
operative complaint today. On Sept. 7, 2023, Golden filed a Second
Amended Complaint. On Sept. 14, 2023, after the parties conferred,
Golden, with NBCU's consent, filed the TAC.
Pending now is NBCU's motion to dismiss the TAC, again for failure
to state a claim under Rule 12(b)(6).
NBCU owns and operates Today.com, a website accessible from a
desktop computer or a mobile app. Today.com offers both live and
on-demand video content. The website also allows users to "sign up"
for a daily digital newsletter. Today.com directs users, who wish
to sign up for a newsletter, to enter an email address and click
"sign up." As an illustration, TAC presents a screenshot of the
screen that users would have seen on Nov. 18, 2022, on the
Today.com website to sign up for a newsletter.
Newsletter recipients provide NBCU with their internet protocol
("IP") address, a unique number assigned to all information
technology connected devices, which conveys the device's city, zip
code, and physical location to NBCU.
Once a user signs up, a daily digital newsletter is delivered to
the email address that the user provided to Today.com. The
newsletters contain hyperlinks to "web-hosted audio visual content,
exclusive content, and direct, prominently featured links to audio
visual content on Today.com." The TAC incorporates an excerpt of a
screenshot of a "This is Today" daily digital newsletter from Sept.
6, 2023, that would have been sent to a user's email address.
The TAC alleges that Today.com lets users, who have signed up for a
daily newsletter know that they can: (1) refer a friend to
"subscribe here"; (2) manage their "subscriptions"; and (3)
"unsubscribe" from their subscription to the newsletter.
Today.com permits users to sign up for multiple daily digital
newsletters. These include ones entitled: This is TODAY; Start
TODAY; Stuff We Love; TODAY On the Show; TODAY Food; TODAY Parents;
Read with Jenna; Concert Series Alerts, Show Updates, Special
Events & Offers. NBCU offers these daily newsletters with the goal
of building an ongoing relationship with its subscribers by having
direct access to and delivering content to each subscriber's inbox.
These daily digital newspapers also drive interactions with NBCU's
own website and video content.
Today.com's privacy policy as of February 2023 states that it
automatically collects certain information--including content you
view and duration. NBCU updated its privacy policy on Dec. 16,
2022, approximately one month after Golden filed this lawsuit. The
policy does not disclose, however, that Today.com shares that
information with third parties, including, as relevant here,
Facebook.
Today.com installed Facebook's tracking pixel (the "Pixel") to
transmit certain information about users to Facebook, which
Facebook then uses to show users targeted ads. The Pixel tracks
users' actions on Facebook advertisers' websites and reports them
to Facebook. To obtain the code for the Facebook Pixel, the website
advertiser informs Facebook, which website events it wishes to
track (for example, video media). Facebook, in turn, generates
corresponding pixel code for the advertiser to include in the code
of its website.
The TAC alleges that NBCU programmed the Pixel to transmit to
Facebook information about users' video viewing. NBCU declined to
program website or app so as not to transmit video viewing
information; NBCU programmed pixel so that Facebook received video
content name, URL, and user's FID.
As a result of the Pixel installation, when users clicked on
hyperlinks on the daily digital newsletter to view video content on
Today.com, the Pixel transmitted to Facebook information permitting
it to know what video content is being consumed, and that the
content was accessed via a daily digital newsletter. The Pixel
transmits users' information without their consent or knowledge.
NBCU benefits financially from providing this information to
Facebook.
In 2022, Golden signed up to receive a Today.com newsletter. She
has since received emails and other communications from Today.com.
She has accessed audiovisual content via hyperlinks provided in the
daily digital newsletters. She has also accessed Today.com's
content through its website and mobile app.
Ms. Golden has had a Facebook account since approximately 2012.
During the period relevant here, she has used her Today.com
subscription to view videos through Today.com or its mobile app
while concurrently logged into her Facebook account. She asserts
that she never agreed, authorized, or otherwise consented to NBCU's
disclosure of her personal video viewing information to Facebook,
and has not been given written notice stating that it is NBCU's
practice to do so.
On Nov. 18, 2022, Golden filed her original Complaint. On Jan. 27,
2023, NBCU moved to dismiss for failure to state a claim under
Federal Rule of Civil Procedure 12(b)(6). On Feb. 17, 2023, after
the Court issued an amend-or-oppose order, she filed the FAC, on
behalf of a putative class, alleging VPPA and unjust enrichment
claims.
On March 10, 2023, NBCU moved to dismiss the FAC, and filed a
memorandum of law and declaration in support. On April 7, 2023,
Golden opposed. On April 21, 2023, NBCU replied. On Aug. 23, 2023,
the Court issued the opinion granting NBCU's motion to dismiss,
without prejudice to Golden's right to amend the VPPA claim, for
the limited purpose of adding allegations as to the operation of
Today.com's mobile app and email newsletter to buttress its claim
that Golden qualified as a subscriber under the VPPA.
On Sept. 7, 2023, Golden filed a Second Amended Complaint. On Sept.
14, 2023, she filed, with NBCU's permission, the now operative TAC.
On Sept. 21, 2023, consistent with a schedule the Court set, NBCU
moved to dismiss the TAC for failure to state a claim under Rule
12(b)(6), and filed a brief letter in support. On Oct. 5, 2023,
Golden opposed. On Oct. 12, 2023, NBCU filed a reply.
The sole issue before the Court is whether the TAC adequately
alleges that Golden is a "subscriber" under the VPPA.
In the August 2023 Decision, the Court held, for two alternative
reasons, that the FAC did not do so, requiring its dismissal.
First, the FAC failed to plead any connection between the
newsletter emails from Today.com for which Golden subscribed, on
the one hand, and the website and mobile app through which Golden
had accessed the videos at issue. Instead, the FAC merely alleged
that Golden had downloaded a free mobile app and viewed videos,
and, unrelated to her video viewing, she had signed up for a free
email newsletter.
Second, the FAC failed to allege that Golden's receipt of the
Today.com newsletter and her use ofthe mobile app gave her any
video viewing benefits beyond those accessible to a general member
of the public.
NBCU contends that the TAC, notwithstanding Golden's efforts to
fortify it, again fails to state a claim. The Court agrees.
Judge Engelmayer opines that the TAC does not add any allegations
linking Golden's subscription to her use of the free mobile app.
That aspect of her usage, thus, still cannot support a VPPA claim,
for the reasons the August 2023 Decision set out. The TAC does add
allegations attempting to link the emailed newsletter that Golden
receives to her video viewing on Today.com. It alleges that the
emailed newsletter included hyperlinks to videos on Today.com's
website, and that Golden clicked on the hyperlinks there to access
these videos.
As such, with respect to Today.com's email newsletter--but not the
free mobile app--the first basis for dismissal in the August 2023
Decision does not require dismissal of the TAC, given its
allegations linking Golden's newsletter subscription to her video
viewing activity, Judge Engelmayer explains.
The second basis for dismissal set out in the August 2023 Decision,
however, equally applies to the TAC, Judge Engelmayer says.
Although adding the allegation that the newsletters contained
hyperlinks to NBCU's "web-hosted audio visual content," the TAC is
devoid of any allegations that these hyperlinks gave Golden access
to exclusive video content otherwise unavailable to a member of the
general public who is not a newsletter subscriber. The TAC is
similarly devoid of any allegations that the newsletter
subscription or mobile app gave Golden any unique video viewing
benefits beyond those accessible to any general member of the
public.
These deficiencies require dismissal of the TAC, Judge Engelmayer
holds. The TAC does not plead that Golden's free subscription to
the Today.com daily digital newsletter was a subscription to "audio
visual materials." Judge Engelmayer points out that the TAC does
not state a claim that Golden was a "subscriber," and therefore, a
"consumer," under the VPPA. Accordingly, the Court grants NBCU's
motion to dismiss the VPPA claim.
For these reasons, the Court grants NBCU's motion to dismiss the
TAC. The Clerk of the Court is directed to terminate the motion
pending at Docket 40 and to close this case.
A full-text copy of the Court's Opinion & Order dated Sept. 11,
2024, is available at https://tinyurl.com/3ta3mwyt from
PacerMonitor.com.
NCB MANAGEMENT: Answer to Consolidated Class Complaint Due Oct. 2
-----------------------------------------------------------------
Judge Kai N. Scott of the U.S. District Court for the Eastern
District of Pennsylvania grants Defendant NCB Management Services,
Inc.'s Motion to Dismiss Plaintiffs' Consolidated Class Action
Complaint, and orders NCB to file its answer to the Complaint by
Oct. 2, 2024, in the lawsuit captioned IN RE NCB MANAGEMENT
SERVICES, INC. DATA BREACH LITIGATION, Case No. 2:23-cv-01236-KNS
(E.D. Pa.).
In this putative class action arising out of a data breach of the
computer systems of Defendant NCB Management Services ("NCB"), the
Plaintiffs allege that NCB failed to adequately safeguard their
personal data, which was compromised as a result of the data
breach.
NCB is a debt collection and accounts receivable management
company. The Plaintiffs are former banking and credit services
customers of Defendants Bank of America Corporation ("BOA") and/or
Pathward, N.A. ("Pathward") (collectively, the "Bank Defendants"),
which were financial institution customers of NCB. NCB acquired the
Plaintiffs' personally identifiable information ("PII") from the
Bank Defendants when they hired it to service, manage and collect
outstanding balances on their customers' accounts.
The Plaintiffs assert claims on their own behalf and on behalf of a
nationwide class against NCB for negligence; negligence per se
based on violations of the Federal Trade Commission Act and the
Driver's Privacy Protection Act ("DPPA"); willful and negligent
violations of the Fair Credit Reporting Act; breach of implied
contract; breach of a contract to which the Plaintiffs were
intended third-party beneficiaries; invasion of privacy; unjust
enrichment; violation of the DPPA; and for relief under the
Declaratory Judgment Act.
A subset of the Named Plaintiffs asserts claims on behalf of
proposed sub-classes for violations of various state consumer
protection laws: the California-based Plaintiffs assert state law
statutory claims under the California Customer Records Act; the
California Unfair Competition Law, the California Consumers Legal
Remedies Act; and the California Consumer Privacy Act on behalf of
themselves and on behalf of a proposed state sub-class.
The New York-based Plaintiff, on behalf of a proposed sub-class,
brings a claim under the New York General Business Law. The
Florida-based plaintiff asserts a claim under the Florida Deceptive
and Unfair Trade Practices Act on behalf of a proposed sub-class.
Finally, two Massachusetts-based Plaintiffs assert a claim on
behalf of a proposed sub-class under the Massachusetts Consumer
Protection Act.
The Plaintiffs bring this case as a class action pursuant to Fed.
R. Civ. P. 23(a), 23(b)(2), and (b)(3) on behalf of the following
Nationwide Class: "All persons in the United States whose PII was
compromised in the Data Breach first made public by NCB in March
2023, and as supplemented by NCB in May 2023."
NCB moves to dismiss eight of the 16 Named Plaintiffs for lack of
standing because they failed to allege a concrete injury.
Specifically, NCB moves to dismiss Plaintiffs Joseph Lindquist,
Ernesto Medina, Benedict Lozada, Edward Del Hierro, Michael
Teixeira, Jacqueline O'Brien, Kelly Matts, and Micael Martin. It
also moves to dismiss 15 of the 17 claims that the Plaintiffs have
asserted against it pursuant to Rule 12(b)(6) of the Federal Rules
of Civil Procedure for failure to state a claim for which relief
can be granted. The claims that it does not seek to dismiss are for
negligence and for declaratory and injunctive relief.
For the reasons set forth in Court's Memorandum Opinion, the Court
grants NCB's motion in its entirety. The Court orders as follows.
Plaintiffs Joseph Lindquist, Ernesto Medina, Benedict Lozada,
Edward Del Hierro, Michael Teixeira, Jacqueline O'Brien, Kelly
Matts, and Micael Martin are dismissed from this action for lack of
standing pursuant to Fed. R. Civ. P. 12(b)(1).
Count III of the Plaintiffs' Consolidated Class Action Complaint,
asserting claims of negligence per se premised on an alleged
violation of: (a) the Federal Trade Commission Act, and (b) the
Driver's Privacy Protection Act ("DPPA") are dismissed as to
Defendant NCB Management Services, Inc. ("NCB") pursuant to Fed. R.
Civ. P. 12(b)(6). Count VI of the Complaint, asserting a claim for
breach of implied contract, is dismissed as to NCB pursuant to Fed.
R. Civ. P. 12(b)(6). Count IX of the Complaint, asserting a claim
for unjust enrichment, is dismissed as to NCB pursuant to Fed. R.
Civ. P. 12(b)(6).
Count XI of the Complaint, asserting a claim under the California
Unfair Competition Law, is dismissed as to NCB pursuant to Fed. R.
Civ. P. 12(b)(6). Count XII of the Complaint, asserting a claim
under the California Consumers Legal Remedies Act, is dismissed as
to NCB pursuant to Fed. R. Civ. P. 12(b)(6). Count XIII of the
Complaint, asserting a claim under the California Consumer Privacy
Act, is dismissed as to NCB pursuant to Fed. R. Civ. P. 12(b)(6).
Count XIV of the Complaint, asserting a claim under the DPPA, is
dismissed as to NCB pursuant to Fed. R. Civ. P. 12(b)(6). Count XV
of the Complaint, asserting a claim under the New York General
Business Law, is dismissed as to NCB pursuant to Fed. R. Civ. P.
12(b)(6). Count XVII of the Complaint, asserting a claim under the
Massachusetts Consumer Protection Act, is dismissed as to NCB
pursuant to Fed. R. Civ. P. 12(b)(6).
Count XIX of the Complaint, asserting a claim for breach of a
contract to which the Plaintiffs were intended third-party
beneficiaries, is dismissed as to NCB pursuant to Fed. R. Civ. P.
12(b)(6). Count XVI of the Complaint, asserting a claim under the
Florida Deceptive and Unfair Trade Practices Act is dismissed as to
NCB for lack of a named Florida plaintiff remaining in the action
to assert this claim.
Count IV of the Complaint, asserting a claim for a willful
Violation of the Fair Credit Reporting Act, is dismissed as
withdrawn as to NCB. Count V of the Complaint, asserting a claim
for a negligent Violation of the Fair Credit Reporting Act, is
dismissed as withdrawn as to NCB. Count VIII of the Complaint,
asserting a claim for invasion of privacy, is dismissed as
withdrawn as to NCB. Count X of the Complaint, asserting a claim
under the California Customer Records Act, is dismissed as
withdrawn as to NCB.
NCB will file its Answer to the Complaint by Oct. 2, 2024.
A full-text copy of the Court's Order dated Sept. 11, 2024, is
available at https://tinyurl.com/yc8hd65v from PacerMonitor.com.
NCB MANAGEMENT: Court Grants Bid to Dismiss in Data Breach Suit
---------------------------------------------------------------
In the lawsuit entitled IN RE NCB MANAGEMENT SERVICES, INC. DATA
BREACH LITIGATION, Case No. 2:23-cv-01236-KNS (E.D. Pa.), Judge Kai
N. Scott of the U.S. District Court for the Eastern District of
Pennsylvania issued a Memorandum Opinion granting NCB's motion to
dismiss in its entirety.
In this putative class action arising out of a data breach of the
computer systems of Defendant NCB Management Services ("NCB"), the
Plaintiffs allege that NCB failed to adequately safeguard their
personal data, which was compromised as a result of the data
breach.
NCB is a debt collection and accounts receivable management
company. The Plaintiffs are former banking and credit services
customers of Defendants Bank of America Corporation ("BOA") and/or
Pathward, N.A. ("Pathward") (collectively, the "Bank Defendants"),
which were financial institution customers of NCB. NCB acquired the
Plaintiffs' personally identifiable information ("PII") from the
Bank Defendants when they hired it to service, manage and collect
outstanding balances on their customers' accounts.
The Plaintiffs assert claims on their own behalf and on behalf of a
nationwide class against NCB for negligence; negligence per se
based on violations of the Federal Trade Commission Act and the
Driver's Privacy Protection Act ("DPPA"); willful and negligent
violations of the Fair Credit Reporting Act; breach of implied
contract; breach of a contract to which the Plaintiffs were
intended third-party beneficiaries; invasion of privacy; unjust
enrichment; violation of the DPPA; and for relief under the
Declaratory Judgment Act.
A subset of the Named Plaintiffs asserts claims on behalf of
proposed sub-classes for violations of various state consumer
protection laws: the California-based Plaintiffs assert state law
statutory claims under the California Customer Records Act; the
California Unfair Competition Law, the California Consumers Legal
Remedies Act; and the California Consumer Privacy Act on behalf of
themselves and on behalf of a proposed state sub-class.
The New York-based Plaintiff, on behalf of a proposed sub-class,
brings a claim under the New York General Business Law. The
Florida-based plaintiff asserts a claim under the Florida Deceptive
and Unfair Trade Practices Act on behalf of a proposed sub-class.
Finally, two Massachusetts-based Plaintiffs assert a claim on
behalf of a proposed sub-class under the Massachusetts Consumer
Protection Act.
The Plaintiffs bring this case as a class action pursuant to Fed.
R. Civ. P. 23(a), 23(b)(2), and (b)(3) on behalf of the following
Nationwide Class: "All persons in the United States whose PII was
compromised in the Data Breach first made public by NCB in March
2023, and as supplemented by NCB in May 2023."
NCB moves to dismiss eight of the 16 Named Plaintiffs for lack of
standing because they failed to allege a concrete injury.
Specifically, NCB moves to dismiss Plaintiffs Joseph Lindquist,
Ernesto Medina, Benedict Lozada, Edward Del Hierro, Michael
Teixeira, Jacqueline O'Brien, Kelly Matts, and Micael Martin. It
also moves to dismiss 15 of the 17 claims that the Plaintiffs have
asserted against it pursuant to Rule 12(b)(6) of the Federal Rules
of Civil Procedure for failure to state a claim for which relief
can be granted. The claims that it does not seek to dismiss are for
negligence and for declaratory and injunctive relief.
While the motions to dismiss were pending, the Plaintiffs
voluntarily dismissed the Bank Defendants from the case. Because
there are numerous allegations in the complaint about the Bank
Defendants, Judge Scott says this Memorandum Opinion will refer to
BOA and Pathward as Defendants to keep the references to those
parties consistent.
NCB argues that Plaintiffs Lindquist, Medina, Lozada, Del Hierro,
Teixeira, O'Brien, Matts, and Martin have failed to adequately
allege that their exposure to the risk of future harm has caused
them a separate concrete harm to meet the "concreteness"
requirement.
Judge Scott finds that the eight Plaintiffs at issue have failed to
meet their burden of pleading that their exposure to the risk of
future harm has caused them separate, concrete harms. While all of
the alleged injuries listed in paragraph 155 of the complaint --
except for the loss of time spent -- constitute separate concrete
harms, this paragraph lists all of the injuries claimed by all of
the Plaintiffs. None of these eight Plaintiffs have alleged that
they specifically suffered any of these injuries.
Only the other eight Named Plaintiffs allege these additional
injuries, Judge Scott says. Thus, the eight Plaintiffs that NCB
contends lack standing fail to meet the "concreteness" requirement
of the standing inquiry.
Therefore, because Plaintiffs Lindquist, Medina, Lozada, Del
Hierro, Teixeira, O'Brien, Matts, and Martin have not alleged a
concrete injury, they lack standing to bring this action, and their
claims will be dismissed pursuant to Federal Rule of Civil
Procedure 12(b)(1).
NCB also argues that the Plaintiffs have failed to allege that a
contract existed between them and NCB because the complaint lacks
factual allegations supporting a meeting of the minds or an
exchange of consideration. It contends there was no meeting of the
minds because the Plaintiffs are customers of NCB's clients -- the
Bank Defendants -- not NCB. They provided their PII to either BOA
or Pathward, and when they developed overdue balances on their
accounts, the banks provided that PII to NCB to collect on those
outstanding balances.
The Court agrees with NCB that the complaint lacks factual
allegations of a meeting of the minds or an exchange of
consideration. The Plaintiffs provided their PII to the Bank
Defendants -- not to NCB, and NCB provides debt collection services
to the banks -- not to the Plaintiffs. There was no direct
interaction or communication between the Plaintiffs and NCB
evidencing a meeting of the minds with the intent to enter into a
contract for data security.
As NCB points out, Judge Scott says the Plaintiffs did not even
know that NCB existed before they entered into their contracts with
the banks. Nor do the Plaintiffs plead facts of any conduct or
actions evidencing an exchange of consideration between the
parties. The Plaintiffs provided their PII to the banks, not to
NCB, and NCB provided its services to the banks, not the
Plaintiffs.
Consequently, Judge Scott finds there was no exchange of
consideration between the parties. Therefore, because the complaint
lacks factual allegations supporting a meeting of the minds or an
exchange of consideration, Judge Scott holds that the claim for
breach of implied contract against NCB will be dismissed.
Judge Scott also finds, among other things, that the Plaintiffs
have failed to plead how NCB actually benefitted from possessing
their PII. They have not plead that NCB became enriched specific to
the PII such that it reaped monetary benefits or otherwise profited
from holding the Plaintiffs' PII. Because vague allegations that
NCB collected information for "commercial gain" are not sufficient
to state a claim for unjust enrichment, the Plaintiffs' unjust
enrichment claim against NCB will be dismissed.
In conclusion, Judge Scott says NCB's motion to dismiss will be
granted in its entirety. Because Plaintiffs Joseph Lindquist,
Ernesto Medina, Benedict Lozada, Edward Del Hierro, Michael
Teixeira, Jacqueline O'Brien, Kelly Matts, and Micael Martin failed
to allege a concrete injury, they are dismissed from this action
for lack of standing pursuant to Fed. R. Civ. P. 12(b)(1).
Because the Plaintiffs failed to state a claim for which relief can
be granted on their claims for: breach of implied contract, breach
of a contract to which the Plaintiffs were intended third party
beneficiaries, unjust enrichment, violation of the DPPA, negligence
per se based on violation of the FTC Act and the DPPA, the
California Unfair Competition Law, California Consumers Legal
Remedies Act, California Consumer Privacy Act, the New York General
Business Law, and the Massachusetts Consumer Protection Act, these
claims will be dismissed pursuant to Fed. R. Civ. P. 12(b)(6).
Because there are no named Florida plaintiffs remaining in this
action, the Florida Deceptive and Unfair Trade Practices Act claim
will be dismissed. Finally, because the Plaintiffs withdrew their
claims for violations of the Fair Credit Reporting Act, the
California Customer Records Act, and for invasion of privacy, these
claims will be dismissed, as well.
A full-text copy of the Court's Memorandum Opinion dated Sept. 11,
2024, is available at https://tinyurl.com/wm42wya3 from
PacerMonitor.com.
NEW YORK CITY: $1.35M in Fees & Costs Awarded in Robinson v. NYCTA
------------------------------------------------------------------
Judge Analisa Torres of the U.S. District Court for the Southern
District of New York awards $1,342,186 in attorney's fees and
$14,405 in expenses in the lawsuit entitled NATHANIEL ROBINSON and
DAVID EVANS, on behalf of themselves and all others similarly
situated, Plaintiffs v. NEW YORK CITY TRANSIT AUTHORITY, Defendant,
Case No. 1:19-cv-01404-AT-BCM (S.D.N.Y.)
Plaintiffs Nathaniel Robinson and David Evans brought this class
action against Defendant the New York City Transit Authority
("NYCTA"), alleging that NYCTA's practice of obtaining default
judgments and enforcing them without adequate notice or opportunity
to be heard violated the Plaintiffs' right to due process under the
Fourteenth Amendment.
Following the certification of a class and a mixed ruling on
summary judgment, the parties reached a settlement. However, the
parties could not agree on the attorney's fees and expenses to be
paid to the Plaintiffs' counsel under 42 U.S.C. Section 1988. After
the Plaintiffs moved for attorney's fees, the Court referred the
motion to Magistrate Judge Barbara C. Moses.
On Aug. 16, 2024, Judge Moses issued a Report and Recommendation
(the "R&R") recommending that the Plaintiffs' counsel be awarded a
total of $1,342,186.50 in attorney's fees and $14,405.40 in
expenses. Eighteen days later, NYCTA objected, arguing that Judge
Moses awarded the Plaintiffs' counsel inappropriately high
attorney's fees.
The Court has reviewed Judge Moses' thorough R&R and finds that it
is not erroneous on its face, so it turns to NYCTA's objections and
conducts its own plenary review.
NYCTA makes two arguments as to why the R&R's fee award is
unreasonable. First, it contends that the R&R's 20% reduction of
lodestar fees does not reflect the Plaintiffs' limited success on
the merits, nor does it account for the disproportionate amount of
time their counsel spent on their unsuccessful claims.
The Court is not persuaded. Judge Torres opines that the R&R
acknowledges that the Plaintiffs lost on one of their procedural
due process issues, but as it points out, the Plaintiffs succeeded
on a second issue and retained the right to go to trial on a third,
leaving them in a relatively good position to negotiate a
meaningful settlement. Moreover, and as the R&R also notes, NYCTA
previously represented that the settlement it reached with the
Plaintiffs provides robust, systemic, and significant relief to the
class.
Second, NYCTA argues that Judge Moses' 20% reduction in lodestar
fees "does not go nearly far enough" to address the Plaintiffs'
overbilling for certain matters. Again, the Court disagrees. As the
R&R explains, the Plaintiffs' counsel cut almost 1,400 hours of
work from their requested lodestar amount in recognition of the
fact that some of their labor was duplicative.
Judge Torres points out that it was perfectly reasonable for Judge
Moses to conclude that a 20% reduction on top of that self-editing
would sufficiently address the case's inefficient staffing.
For these reasons, the Court overrules NYCTA's objections to the
R&R and adopts the R&R in its entirety. The Plaintiffs' motion for
attorney's fees is granted, as modified by the R&R. The Clerk of
Court is directed to terminate the motion at ECF No. 211.
A full-text copy of the Court's Order dated Sept. 11, 2024, is
available at https://tinyurl.com/3n3pnx88 from PacerMonitor.com.
NEWCOMB OIL: Southard's Class Settlement Obtains Final Court Nod
----------------------------------------------------------------
In the case captioned as MICHAEL SOUTHARD, on behalf of himself and
all others similarly situated, v. NEWCOMB OIL CO., LLC, Defendant,
Civil Action No. 3:21-cv-607-DJH-CHL (W.D. Ky.), Judge David J.
Hale of the United States District Court for the Western District
of Kentucky granted Southard's motion for final approval of his
class-action settlement with Newcomb Oil.
The Court held a final fairness hearing on August 9, 2024, and
heard from the parties in support of the settlement.
Newcomb Oil operates convenience stores throughout Kentucky called
"Five Star Food Marts."
Southard brought this class action on behalf of current and former
Five Star employees, alleging that Newcomb Oil violated their
rights under the Kentucky Wages and Hours Act and Kentucky common
law. Specifically, the complaint includes claims of:
(1) failure to pay for all hours worked, including overtime
under Ky. Rev. Stat. Sec. 337.285;
(2) failure to provide meal and rest periods under Ky. Rev.
Stat. Secs. 337.355, 337.365, and 446.070;
(3) untimely payment of wages and unlawful withholding of wages
under Ky. Rev. Stat. Secs. 337.055 and 337.060;
(4) failure to furnish accurate statements of wage deductions
under Ky. Rev. Stat. Sec. 337.070; and
(5) unjust enrichment.
Following discovery and a settlement conference with U.S.
Magistrate Judge Colin H. Lindsay, the parties reached a settlement
agreement in December 2023. Southard then
filed an unopposed motion for preliminary approval of his
class-action settlement with Newcomb Oil, which the Court granted
on May 10, 2024. The Court conditionally certified the following
settlement class:
[A]ll current and former hourly non-exempt Five Star convenience
store employees, including but not limited to customer service
representatives, store attendants, clerks, cashiers, GO Team
employees, money counters, inventory team members, or other
employees with similar job duties, employed by Defendant in
Kentucky at any time from
November 9, 2013 until December 16, 2023.
Under the parties' settlement agreement, Newcomb Oil agreed to pay
"a non-reversionary Gross Settlement amount of $1,500,000.00, plus
the employer's portion of payroll taxes on settlement awards to
Participating Class Members, which [Newcomb Oil] has agreed to pay
separately." The Net Settlement Fund is "estimated to be
$881,848.19.
Class counsel seek $525,000 in attorney fees and $15,101.81 in
costs. The proposed award of attorney fees and costs in this case
represents 36% of the total settlement amount.
Under the parties' settlement agreement, Southard will receive "a
$10,000 Service Award, for his role in prosecuting this lawsuit on
the behalf of all Class Members."
The Court finds the parties' settlement to be fair reasonable, and
adequate.
The Court confirms the appointment of Michael Southard as Class
Representative and approves the $10,000 service award to Southard
as set out in the Settlement Agreement.
The Court confirms the appointment of Schneider Wallace Cottrell
Konecky LLP and Kaplan Johnson Abate & Bird LLP as Class Counsel
and approves their request for $525,000 in attorney fees and
$15,101.81 in litigation costs.
The Court finds that CPT Group, Inc. is entitled to $69,500 for
settlement administration.
The Court directs the parties to effectuate the settlement terms as
set forth in the Settlement Agreement and the settlement
administrator to calculate and pay the claims of the class members
in accordance with the terms set forth in the Settlement
Agreement.
This matter is now dismissed with prejudice, stricken from the
Court's docket, and closed. The Court retains jurisdiction to
enforce the terms of the settlement, including the payment of the
settlement fund.
A copy of the Court's Order dated September 23, 2024, is available
at https://urlcurt.com/u?l=yZuNBo
NY BACON: O'Bryant Sues Over Unpredictable Work Schedules
---------------------------------------------------------
JUUNE O'BRYANT, individually and on behalf of all others similarly
situated, Plaintiff v. NY BACON LLC, Defendant, Case No.
1:24-cv-07150 (S.D.N.Y., September 20, 2024) arises out of
Defendant's failure to comply with the New York City Fair Workweek
Law, Title 20, Chapter 12 of the New York City Administrative
Code.
Plaintiff O'Bryant was employed by Defendant as a fast food worker
at their Wendy's location in New York City from in or around August
15, 2023 until November 15, 2023. The Defendant allegedly violated
the Fair Workweek Law by failing to provide predictable schedules
with at least 14-days' notice, changing employees' schedules at the
last minute, requiring employees to work clopenings without written
consent and without paying the premium, failing to offer new shifts
to current employees before hiring new employees, and reducing
employees' hours by more than 15% or terminating employees without
just cause and without providing a written explanation.
NY Bacon LLC owns and operates several Wendy's franchises in New
York City, NY. [BN]
The Plaintiff is represented by:
Brian S. Schaffer, Esq.
Armando A. Ortiz, Esq.
FITAPELLI & SCHAFFER, LLP
28 Liberty Street, 30th Floor
New York, NY 10005
Telephone: (212) 300-0375
PARK MY FLEET: Grewal Suit Remanded to San Joaquin Superior Court
-----------------------------------------------------------------
In the case captioned as SARVPREET GREWAL, Plaintiff, v. PARK MY
FLEET LLC, et al., Defendants, Judge Dale Drozd of the United
States District Court for the Eastern District of California
granted plaintiff's motion to remand this action to the San Joaquin
County Superior Court.
In December 29, 2024, plaintiff Sarvpreet Grewal filed this
putative class action against his employer, defendant Park My
Fleet, LLC, in the San Joaquin County Superior Court. In his
complaint, plaintiff brings seven separate claims alleging that
defendant violated California labor laws by failing to pay minimum
and straight time wages, pay overtime rages, pay meal and rest
period premiums, timely pay final wages, provide compliant wage
statements, and provide requested employment records, as well as a
claim under the California Business and Professions Code Secs.
17200, et seq.
On March 18, 2024, defendant removed this action to this federal
court pursuant to 28 U.S.C. Secs. 1332, 1441, and 1446, on the
grounds that diversity jurisdiction exists because plaintiff and
defendant are citizens of different states and the amount in
controversy exceeds $75,000.
On April 17, 2024, plaintiff filed the pending motion to remand
this action to the San Joaquin County Superior Court, arguing that
the amount in controversy requirement under 28
U.S.C. Sec. 1332 is not met and that the removal was not timely.
The court finds that defendant's asserted total amount in
controversy for plaintiff's overtime claim, $2,280 (low) and
$18,240 (high), are plainly unsupported and not drawn from the
allegations of plaintiff's complaint. Defendant bears the burden to
satisfy the amount-in-controversy requirement and the court will
not correct defendant's calculation for liquidated damages to
arrive at a corrected subtotal. More importantly, defendant fails
to substantiate its assumed violation rates. Plaintiff's complaint
stated merely that "at times" plaintiff worked more than 8 hours
per day, not that he worked overtime hours every single workday.
Thus, the court finds that defendant did not rely on reasonable
assumptions in calculating the amount in controversy with respect
to plaintiff's overtime claim. As a result, "the court does not
consider defendant's estimate of unpaid overtime damages in its
calculation of the amount in controversy."
As with plaintiff's overtime claim, defendant assumes that
plaintiff missed a meal period and was not compensated for that
meal period every single workday. Without any further explanation
or evidence, defendant also assumes that plaintiff missed a second
meal period every single workday. Based on these unsubstantiated
assumptions, defendant calculates the amount in controversy for
plaintiff's meal periods claim as the number of workweeks plaintiff
worked (16) multiplied by the number of missed meal periods per
week (5 first meal periods + 5 second meal periods), then
multiplied by his hourly wage ($19.00). This calculation yields an
amount in controversy of $3,040. Defendant then also assumes that
plaintiff worked through those meal periods and was not compensated
for that work, so doubles the amount of damages to $6,080
associated with plaintiff's meal periods claim.
The court finds defendant's assumptions on the violation rate are
unsubstantiated and not connected to the allegations of plaintiff's
complaint. As a result, there is no basis in the complaint for
defendant to include in the damages associated with plaintiff's
meal periods claim any "payment for the actual time worked."
For these reasons, the court finds that defendant did not rely on
reasonable assumptions in asserting the amount in controversy as to
plaintiff's meal periods claim. Accordingly, the court will also
not consider defendant's estimated amount in controversy as to this
claim. Because the estimated amounts for the remaining claims do
not exceed the $75,000 jurisdictional threshold, even if the court
were to accept all of defendant's remaining estimates, defendant
would still fail to satisfy its burden. Consequently, the court
need not, and does not, address whether defendant made reasonable
assumptions to arrive at its estimates with regard to plaintiff's
other claims. The court readily concludes that defendant has not
met its burden of establishing the requisite amount in controversy
by a preponderance of the evidence. Accordingly, plaintiff's motion
to remand this case to the San Joaquin County Superior Court will
be granted.
A full-text copy of the Court's Order dated September 17, 2024, is
available at https://urlcurt.com/u?l=GytbCG
PLDT INC: Court Grants Final Approval of Class Action Settlement
----------------------------------------------------------------
Judge Fernando L. Aenlle-Rocha of the United States District Court
for the Central District of Florida granted Lead Plaintiff Kevin
Douglas' Motion for Final Approval of Class Action Settlement,
Approval of the Plan of Allocation, and Final Certification of the
Class in th case captioned as SOPHIA OLSSON, Plaintiff, v. PLDT
INC., et al., Defendants, Case No. 2:23-cv-00885-FLA (MAAx) (C.D.
Calif.).
The court, having considered the Motion, the arguments of counsel
at the hearing, and all relevant materials, hereby grants the
Motion and orders and adjudges as follows:
1. For purposes of this Judgment and Order, the terms used herein
(including capitalized terms) shall have the same meanings as set
forth in the Stipulation of Settlement dated February 16, 2024.
2. The court has jurisdiction over the subject matter of the Action
and over all parties to the Action, including all Class Members.
3. "Class" shall mean all persons or entities who purchased or
otherwise acquired PLDT Inc. American Depository Shares during the
period from January 1, 2019 through December 21, 2022, inclusive.
Excluded from the Class are: (1) the defendants; (2) any individual
defendant's Immediate Family Members; (3) any firm, trust,
corporation, or other entity in which a defendant has or had a
controlling interest; (4) the Company's subsidiaries and
affiliates; (5) any person who is an officer, director, or
controlling person of the Company; (6) the Company's directors' and
officers' liability insurance carriers, and any affiliates or
subsidiaries thereof; and (7) the legal representatives,
affiliates, heirs, successors in interest, or assigns of any such
excluded person or entity. Also excluded from the Settlement Class
are those Persons who timely and validly requested exclusion and
are listed in Exhibit E to the Declaration of Josephine Bravata
Concerning: (A) Mailing of the Postcard Notice; (B) Publication of
the Summary Notice; and (C) Report on Requests for Exclusion and
Objections.
4. Pursuant to Federal Rule of Civil Procedure 23(e), the court
hereby approves the Settlement set forth in the Stipulation and
finds that said Settlement is, in all respects, fair, just,
reasonable, and adequate to the Class. The court finds that
certification of the Class for settlement purposes only is
appropriate because: the Class is so numerous that joinder of all
members is impracticable, satisfying the requirements of Rule
23(a)(1); there are questions of law or fact common to the Class,
satisfying the requirement of Rule 23(a)(2); the claims of Lead
Plaintiff are typical of the claims of the Class, satisfying the
requirement of Rule 23(a)(3); the Class Representative will fairly
and adequately protect the interests of the Class, satisfying the
requirement of Rule 23(a)(4); and questions of law and fact common
to the members of the Class predominate over questions affecting
only individual members, and a class action is superior to other
methods available for the fair and efficient adjudication of the
controversy, satisfying the requirements of Rule 23(b)(3). The
findings in this paragraph are for purposes of this Settlement only
and shall have no force or effect for any other purpose or if this
Judgment and Order does not become final.
5. The court approves the Settlement set forth in the Stipulation
and finds that: said Stipulation is, in all respects, fair,
reasonable, and adequate, and in the best interests of the Class;
there was no collusion in connection with the Stipulation; the
Stipulation was the product of informed, arm's-length negotiations
among competent, able counsel; and the record is sufficiently
developed and complete to have enabled the Lead Plaintiff and
Defendants to have adequately evaluated and considered their
positions.
6. Pursuant to Rule 23, the court finds that due and adequate
notice was directed to Persons who are Class Members, advising them
of the Plan of Allocation and of their right to object thereto, and
a full and fair opportunity was accorded to such Persons and
entities who are Class Members to be heard with respect to the Plan
of Allocation. Only one objection to the plan of allocation was
filed, by purported Class Member Matthew Miner, which is
overruled.
7. The court finds the formula for the calculation of the claims of
Authorized Claimants, which is set forth in the Notice of Pendency
of Proposed Settlement of Class Action sent to Class Members,
provides a fair and reasonable basis upon which to allocate the
proceeds of the Net Settlement Fund provided by the Settlement
among eligible Class Members, with due consideration having been
given to administrative convenience and necessity.
8. The court finds the Plan of Allocation, as set forth in the
Notice, is in all respects fair and reasonable, and approves the
Plan of Allocation.
9. The court finds that Defendants have satisfied their financial
obligations under the Stipulation by paying or causing to be paid
$3,000,000 to the Settlement Fund, in accordance with ¶ 2.2 of the
Stipulation.
10. Upon the Effective Date of the Settlement, the Lead Plaintiff
and each of the Class Members (excluding those who have validly
opted out of the class), on behalf of themselves, and each of their
respective heirs, executors, administrators, predecessors,
successors, assigns, parents, subsidiaries, affiliates, officers,
directors, agents, fiduciaries, beneficiaries, or legal
representatives, in their capacities as such, and any other person
or entity legally entitled to bring Released Plaintiff's Claims on
behalf of a Class Member, in that capacity, shall be deemed to
have, and by operation of law and of this Judgment and Order, shall
have fully, finally, and forever released, relinquished, waived,
and discharged against the Released Defendant Parties (whether or
not such Class Member executes and delivers the Proof of Claim) any
and all Released Claims (including, without limitation, Unknown
Claims).
11. Upon the Effective Date, Lead Plaintiff and all Class Members
(excluding those who have validly opted out of the Class), whether
or not such Class Members execute and deliver a Proof of Claim, are
hereby forever permanently barred and enjoined from instituting,
commencing, maintaining, prosecuting, or enforcing any and all
Released Claims (including, without limitation, Unknown Claims)
against any of the Released Defendant Parties, in all state and
federal courts and arbitral fora, and in the courts and agencies of
all foreign jurisdictions (including the Philippines).
12. Upon the Effective Date of the Settlement, Released Defendant
Parties shall be deemed to have, and by operation of this Judgment
and Order shall have, fully, finally, and forever released,
relinquished, and discharged the Released Plaintiff Parties,
including Lead Counsel, from all Released Defendants' Claims
(including, without limitation, Unknown Claims). For the avoidance
of doubt, the releases, relinquishments, and discharges provided by
the Released Defendant Parties in this Stipulation do not include
the release, relinquishment, or discharge of any claim or cause of
action that any of the Released Defendant Parties may have against
any insurer or reinsurer for, arising out of, or related to
insurance coverage for, arising out of or related to the Action or
any related matter or proceeding, including any derivative or ERISA
action based on similar allegations.
A full-text copy of the Court's Judgment and Order dated September
17, 2024, is available at https://urlcurt.com/u?l=Lj1Nro
PORSCHE CARS: Motion to Modify Class Action Settlement Order Okayed
-------------------------------------------------------------------
In the class action lawsuit captioned as AMANDA WASHBURN,
Plaintiff, v. PORSCHE CARS NORTH AMERICA, INC., a Delaware
corporation, Defendant, Case No. 2:22-cv-01233-TL (W.D. Wash.),
Judge Tana Lin of the United States District Court for the Western
District of Washington granted the Parties' Joint Motion to Further
Modify the Preliminary Approval Order filed in this case.
Judge Lin modified the schedule set forth in the Court's Order
Modifying Preliminary Approval of Class Action Settlement, dated
August 20, 2024, as follows:
Event Current Deadline Revised Deadline
Notice shall be mailed in October 7, 2024 November 6, 2024
accordance with the Notice Plan
and this Order
Deadline for Filing November 15, 2024 December 15, 2024
Class Counsel's Motion for Attorneys'
Fees, Costs, and Service Awards
Deadline for Mailing any December 6, 2024 January 5, 2025
Request for Exclusion from the
Settlement
Deadline for Filing December 6, 2024 January 5, 2025
or Mailing any Objections to the Settlement,
Class Counsel's Proposed Fees
and Expenses, and/or the
proposed Settlement Class
Representative service award
Deadline for Plaintiff February 4, 2025 March 6, 2025
to File a Motion for
Final Approval
Deadline for Plaintiff and February 11, 2025 March 13, 2025
Defendant to file any
submissions in response to any
Objections
Deadline for Settlement January 6, 2025 February 4, 2025
Class Members to Submit Claims
Final Approval Hearing at February 27, 2024 March 27, 2024
10:00 a.m
All other terms of this Court's Preliminary Approval Order dated
May 8, 2024, remain in effect.
A copy of the Court's Order dated September 23, 2024, is available
at https://urlcurt.com/u?l=xwdfFd
QUTOUTIAO INC: Investors Appeal to Revive Illicit Ads Class Suit
----------------------------------------------------------------
Erik UEbelacker, writing for Courthouse News Service, reports that
a group of investors argued to a Second Circuit appeals panel on
Monday, September 23, 2024, that popular Chinese media aggregator
Qutoutiao lied about its ability to detect illegal advertisements
on its platform in their attempt to revive their securities claims
against the company.
James Pappas is the lead defendant in the class action against
Qutoutiao, which supposedly promised investors that it had robust
and effective compliance measures to prevent advertisements deemed
illegal in China -- such as gambling sites and breast enhancement
procedures -- from appearing on its platform with a "high degree of
accuracy."
In reality, Pappas and the other investors say that more than a few
illicit advertisements slipped through the cracks, costing them
millions when Qutoutiao's stock price plummeted in response to
inevitable government intervention.
But Pappas' case was dead in the water as of last summer, when a
lower judge disposed of all claims -- ultimately not buying that
the investors' reliance on language as vague as "high degree of
accuracy" justified the securities claim.
Pappas' attorney, Richard Cipolla of Freedman Normand Friedland,
asked a three-judge panel to revive the complaint, reiterating that
Qutoutiao touted a slew of tools like "AI technologies" to lull
investors into a false sense of security about its advertising
compliance.
Cipolla almost immediately hit resistance when restating his
clients' issue with the "high degree of accuracy" statement from
Qutoutiao.
"What should it have been, 'medium?'" U.S. Circuit Judge Michael
Park, a Donald Trump appointee, inquired with jest. "These are
vague terms. This is also the kind of thing that we consider
puffery, isn't it?"
Cipolla hit back that since Qutoutiao boasted specific technology
to back its claims, it bolstered his clients' case that the company
misled its investors.
"They specify exactly what makes it effective," Cipolla said. "It's
not simply that, 'We're best in class,' or, 'We do the best we
can.' They say, 'We have these specific technology and controls
that bring us to this line.'"
Qutoutiao's attorney, Bryan Jin of Simpson Thacher & Bartlett,
argued that the investors' claims about the illegal ads were vastly
exaggerated, and thus rightfully dismissed by the lower court.
"Plaintiff alleges that at the time of the IPO under the SPO, there
were substantial portions of advertisements on QTT that were
illegal and QTT failed to disclose that," Jin said, "Well, that
naked statement in itself is certainly insufficient."
"The complaint goes on to allege that the government stepped in
because of the quantity of ads," U.S. Circuit Judge Denny Chin, a
Barack Obama appointee, replied. "Isn't that a plausible inference
that there was a substantial number of offending ads?"
Jin shot back that the supposed revenue drops all took place well
after the plaintiffs claimed, making the entire securities claim
implausible.
Park and Chin were joined on Monday's panel by U.S. District Judge
Lewis Liman, a Donald Trump-appointed federal judge in the Southern
District of New York. The panel didn't immediately issue a ruling.
Qutoutiao, which translates to "fun headlines" in English, was
founded in 2016 by Chinese billionaire Eric Tan. By 2018, the
mobile content aggregator amassed more than 17 million daily active
users and nearly 49 million monthly active users, according to
reports.
The investors initiated their consolidated class action in 2020,
after Qutoutiao was forced to "remove misleading or inappropriate
advertisements from [its] applications," which caused revenues to
plummet by around 20%, Pappas wrote in an appellate brief.
Pappas added that Qutoutiao specifically targeted those in rural
Chinese towns, who were typically "underserved" by digital
advertisers, but also less likely to report the unlawful ads.
"While QTT targeted users in smaller, provincial Chinese cities who
were starting to have more disposable income, advertisers selling
illicit advertisements knew those users were also less aware of
their rights and less likely to report such advertisements," Pappas
wrote. [GN]
R1 RCM INC: Response to Bid to Dismiss Hillbom Suit Due Oct. 10
---------------------------------------------------------------
In the lawsuit titled HEATHER HILLBOM, individually and on behalf
of all others similarly situated, Plaintiff v. R1 RCM INC.; and
DIGNITY HEALTH d/b/a DIGNITY HEALTH - ST. ROSE DOMINICAN HOSPITAL,
ROSE DE LIMA CAMPUS, Defendants, Case No. 2:24-cv-00664-JAD-EJY (D.
Nev.), Judge Jennifer A. Dorsey of the U.S. District Court for the
District of Nevada approved the parties' stipulation to extend time
to file response and reply to the Defendants' motion to dismiss.
Plaintiff Heather Hillbom and Defendants R1 RCM INC.; and DIGNITY
HEALTH d/b/a DIGNITY HEALTH - ST. ROSE DOMINICAN HOSPITAL, ROSE DE
LIMA CAMPUS, by and through their counsel, stipulate to extend the
Parties' respective deadlines to respond and reply to the
Defendants' Motion to Dismiss Plaintiff's Class Action Complaint
(the "Motion"). The Defendants filed their Motion on Aug. 27, 2024.
The Plaintiff's Response or Opposition to the Motion was due on
Sept. 10, 2024. The Defendants' Reply in support of their Motion
was due on Sept. 17, 2024.
The Parties have conferred and mutually agreed to an extension of
time for the Parties' briefing schedule related to the Defendants'
Motion as follows: (i) Plaintiff's Response to the Motion to be
filed by Oct. 10, 2024; and (ii) Defendants' Reply in support of
the Motion to be filed by Oct. 31, 2024.
The Court issued a Notice setting an in-person hearing for the
Defendants' Motion on a stacked calendar on Monday, Nov. 4, 2024,
at 02:30 p.m.
In light of the Parties' agreed upon extension of time of the their
briefing schedule related to the Defendants' Motion, the Parties
propose that the hearing on the Defendants' Motion be continued to
Nov. 25, 2024, or a later date, which is convenient for the Court.
Judge Dorsey notes that this is the Parties' first stipulation to
extend these deadlines and is not made for the purposes of delay.
Therefore, the Parties stipulated (and approved by the Court) as
follows:
1. The Plaintiff's Response to the Motion due by Oct. 10,
2024;
2. The Defendants' Reply in support of the Motion due by
Oct. 31, 2024; and
3. Hearing on the Defendants' Motion continued to Nov. 25,
2024, or a later date, which is convenient for the Court.
A full-text copy of the Court's Stipulation and Order dated Sept.
11, 2024, is available at https://tinyurl.com/3he7xnn7 from
PacerMonitor.com.
Gustavo Ponce -- gustavo@kazlg.com -- Mona Amini -- mona@kazlg.com
-- KAZEROUNI LAW GROUP, APC, in Las Vegas, Nevada 89103, Attorneys
for the Plaintiff.
Philip R. Erwin -- perwin@campbellandwilliams.com -- CAMPBELL &
WILLIAMS, in Las Vegas, NV 89101; Sean G. Wieber --
swieber@winston.com -- Kevin P. Simpson -- kpsimpson@winston.com --
Amelia Garza-Mattia -- agarzamattia@winston.com -- WINSTON & STRAWN
LLP, in Chicago, IL 60601, Attorneys for the Defendants.
RENTGROW INC: 4th Cir. Vacates Class Cert. Order in Fernandez Suit
------------------------------------------------------------------
The United States Court of Appeals for the Fourth Circuit vacates
and remands the order granting class certification in the lawsuit
titled MARCO A. FERNANDEZ, Plaintiff - Appellee v. RENTGROW, INC.,
Defendant - Appellant, Case No. 22-1619 (4th Cir.).
The appeal is from the U.S. District Court for the District of
Maryland, at Baltimore (James K. Bredar, Senior District Judge,
1:19-cv-01190-JKB).
Circuit Judge Allison Jones Rushing writes the Opinion for the
Panel.
When Marco Fernandez applied to rent an apartment, Defendant
RentGrow, Inc., sent the property owner a tenant screening report
about him. The report inaccurately stated that Fernandez had "1
Possible Match in OFAC Name Search." Luckily for Fernandez, the
property manager, who reviewed his report did not know what "OFAC"
(Office of Foreign Assets Control) was or read the section of his
report about the possible match, and it did not factor into any
variable she considered when deciding whether to rent an apartment
to him.
Nevertheless, Fernandez sued RentGrow for reporting this misleading
information about him alleging violations of the Fair Credit
Reporting Act (FCRA). His complaint asserted an individual claim
based on RentGrow's criminal record reporting procedures, which is
not at issue in this appeal. Relevant here, Fernandez also brought
an individual and class claim alleging that RentGrow willfully
failed to "follow reasonable procedures to assure maximum possible
accuracy" of OFAC information included in tenant screening reports.
For this claim, the complaint sought statutory and punitive
damages.
Mr. Fernandez sought to represent a class of similarly situated
plaintiffs. The district court certified a class of individuals,
who were the subject of a consumer report with a misleading
"possible OFAC match" furnished by RentGrow to a third party. In
certifying the class, the district court rejected RentGrow's
objection that Fernandez and the class members had failed to
demonstrate a concrete injury sufficient to establish Article III
standing to sue.
According to the district court, it did not matter that the
recipient of a misleading report did not read or comprehend it;
dissemination of the report sufficed to show a concrete injury in
fact.
The Court of Appeals disagrees. Reputational harm can be a concrete
injury, but only if the misleading information was brought to the
attention of a third party, who understood its defamatory
significance.
Judge Rushing opines that the evidence here does not support an
inference that any third party read and understood, or otherwise
considered, the inaccurate OFAC information in Fernandez's tenant
screening report. He, therefore, has failed to demonstrate a
concrete injury sufficient for Article III standing. That
conclusion requires rethinking class certification, so the Panel
vacates the district court's certification order and remands for
further proceedings.
Accordingly, the Court of Appeals holds that the district court's
order granting class certification is vacated and remanded for
further proceedings consistent with its Opinion.
Vacated and remanded.
A full-text copy of the Court's Opinion dated Sept. 11, 2024, is
available at https://tinyurl.com/4vrnykat from PacerMonitor.com.
Maura K. Monaghan -- mkmonaghan@debevoise.com -- Kristin D. Kiehn
-- kdkiehn@debevoise.com -- Emilia N. Brunello --
enbrunel@debevoise.com -- DEBEVOISE & PLIMPTON LLP, in New York
City, New York; Bonnie Keane DelGobbo -- bdelgobbo@bakerlaw.com --
BAKER & HOSTETLER, LLP, in Chicago, Illinois; Joel Griswold --
jcgriswold@bakerlaw.com -- BAKER & HOSTETLER, LLP, in Orlando,
Florida, for the Appellant.
Matthew W.H. Wessler -- matt@guptawessler.com -- GUPTA WESSLER
PLLC, in Washington, D.C.; Neil K. Sawhney -- neil@guptawessler.com
-- GUPTA WESSLER PLLC, in San Francisco, California; E. Michelle
Drake -- emdrake@bm.net -- John G. Albanese -- jalbanese@bm.net --
Ariana Kiener -- akiener@bm.net -- BERGER MONTAGUE PC, in
Minneapolis, Minnesota; Martin E. Wolf, GORDON, WOLF & CARNEY,
CHTD., in Towson, Maryland, for the Appellee.
RIVERSIDE RESORT: Laudonio Sues Over Data Security Failures
-----------------------------------------------------------
CAROL LAUDONIO, individually and on behalf of all others similarly
situated, Plaintiff v. RIVERSIDE RESORT & CASINO, INC., Defendant,
Case No. 2:24-cv-01775 (D. Nev., September 20, 2024) arises from
Defendant's failure to secure and safeguard Plaintiff and other
similarly situated Class members' personally identifiable
information, which was assessed and acquired by cybercriminals in a
data breach on or about July 25, 2024.
On or around September 5, 2024, the Defendant sent Plaintiff a
Notice of Data Breach letter indicating that an unauthorized party
had accessed and acquired certain files from Defendant's systems
during the Data Breach. However, the letter did not specify how
many individuals were affected by the Data Breach or provide
details about the circumstances surrounding the Data Breach.
Accordingly, the Plaintiff seeks to remedy the data security
failures and their consequences, and asserts claims for negligence,
negligence per se, breach of implied contract, unjust enrichment,
and declaratory relief.
Riverside Resort & Casino, Inc. owns and operates a hotel and
casino located on the banks of the Colorado River in Laughlin, NV.
[BN]
The Plaintiff is represented by:
Mona Amini, Esq.
Gustavo Ponce, Esq.
KAZEROUNI LAW GROUP, APC
6940 S. Cimarron Road, Suite 210
Las Vegas, NV 89113
Telephone: (800) 400-6808
Facsimile: (800) 520-5523
E-mail: mona@kazlg.com
gustavo@kazlg.com
RIVERSIDE RESORT: Martin and David Sue Over Private Data Breach
---------------------------------------------------------------
DARLENE MARTIN AND DAVID WILLEY, on behalf of themselves and all
others similarly situated, Plaintiffs V. RIVERSIDE RESORT & CASINO,
INC. and RIVERSIDE RESORT & CASINO, LLC, Defendants, Case No.
2:24-cv-01767 (D. Nev., September 20, 2024) arises from Defendant's
failure to properly secure and safeguard Plaintiffs' and other
similarly situated former and current employees and customers'
private information from hackers.
On or about September 4, 2024, Riverside also sent out data breach
letters to Plaintiff and other individuals whose information was
compromised as a result of the hacking incident. Based on the
Notice filed by the company, on July 25, 2024, Riverside detected
unusual activity on some of its computer systems. In response, the
company launched an investigation. The Riverside investigation
revealed that an unauthorized party had accessed and acquired
certain computer files earlier that day. On August 9, 2024,
Riverside concluded its investigation after identifying 51,555
individuals whose information had been stolen during the Data
Breach. Accordingly, the Plaintiffs, on behalf of themselves and
the Class, assert claims for negligence, negligence per se, breach
of implied contract, and unjust enrichment.
Riverside Resort and Casino, Inc. owns, maintains and operates Don
Laughlin’s Riverside Resort Hotel & Casino in Laughlin, NV. [BN]
The Plaintiffs are represented by:
Nathan R. Ring, Esq.
STRANCH, JENNINGS & GARVEY, PLLC
3100 W. Charleston Boulevard, Suite 208
Las Vegas, NV 89102
Telephone: (725) 235-9750
E-mail: lasvegas@stranchlaw.com
- and -
Tyler J. Bean, Esq.
SIRI & GLIMSTAD LLP
745 Fifth Avenue, Suite 500
New York, NY 10151
Telphone: (212) 532-1091
E-mail: tbean@sirillp.com
SABER HEALTHCARE: Kuchar Settlement Gets Preliminary Court Okay
---------------------------------------------------------------
In the case captioned as COLLEEN KUCHAR, on behalf of herself and
all others similarly situated, v. SABER HEALTHCARE GROUP, LLC, et
al., Defendants, Case No. 20-cev-02542 (N.D. Ohio), Judge David A.
Ruiz of the United States District Court for the Northern District
of Ohio granted preliminary approval of the parties' proposed class
action settlement.
Plaintiff Colleen Kuchar, on behalf of herself and all others
similarly situated and Defendants Saber Healthcare Group, LLC, and
Aurora Manor Limited Partnership, have jointly moved the Court to
approve the parties' proposed settlement pursuant to the Fair Labor
Standards Act, 29 U.S.C. Sec. 216(b), and preliminarily approve the
settlement pursuant to Fed. R. Civ. P. 23, approve a proposed
notice to Class Members, and schedule a Fairness Hearing.
This case was brought on November 11, 2020, alleging claims against
Defendants for unpaid regular and overtime wages. The class and
collective actions were brought on behalf of two groups of
healthcare workers at Aurora Manor and facilities affiliated with
SHG. The FLSA claims were pursued on behalf of:
(1) salaried MDS nurses and coordinators who worked more than 40
hours in one or more work weeks at any time but were not paid
overtime 1n the three years preceding the date of the grant of
conditional certification at any of the 122 facilities listed on
SHG's website and who had not executed arbitration agreements with
Defendants; and
(2) hourly nurses at Aurora Manor who worked more than 40 hours
in one or more work weeks at any time in the three years preceding
the date of the grant of conditional certification and who had not
executed arbitration agreements with Defendants. Ohio wage law
claims were pursued under FED. R. CIV. P. 23 only with respect to
the hourly nurses who worked in one or more workweeks at Aurora
Manor any time between November 11, 2018 and the present and had
not executed an arbitration agreement with Defendants.
For her claims on behalf of the MDS nurses, Plaintiff alleges that
she and Saber's other MDS nurses were misclassified as salaried
exempt under the Fair Labor Standards Act, and denied overtime pay
for the hours they worked over 40 per workweek.
For her claims on behalf of Aurora Manor's hourly patient care
staff, Plaintiff alleges that she and the other hourly patient care
staff at Aurora Manor were not paid for all of the regular and
overtime hours they worked through unpaid lunch breaks.
The named plaintiff, Colleen Kuchar, is a member of both groups as
she worked for the Aurora Manor facility as both an hourly and MDS
nurses.
On July 9, 2021, the Court conditionally certified this action as a
collective action under the Fair Labor Standards Act, 29 U.S.C.
Sec. 216(b), based on two collectives. There are a total of 19
Opt-In Plaintiffs across the two collectives. On October 4, 2021,
the Court granted Plaintiffs' motion for class certification of a
state-law class as to the Aurora Manor hourly nurses under FED. R.
CIV. P. 23. The Rule 23 class consists of 65 hourly nurses.
The parties have informed the Court that they believe the
settlement appropriately balances the expenses, risks, and possible
outcomes of protracted litigation. For the Plaintiff, Opt-Ins, and
Class Members, the proposed settlement will eliminate the risk and
delay of litigation and make substantial payments available to
them.
The settlement will resolve the disputed claims for Plaintiff
Kuchar, the Opt-ins who joined the case pursuant to 29 U.S.C. Sec.
216(b), all members of the Rule 23 Class, and terminated Opt-Ins
Tenkewich, Lawson, and Taylor.
The settlement makes fair and reasonable settlement payments
available to the Plaintiff and Class Members. The proposed method
of allocating the net settlement proceeds is reasonable and fair to
all. The net proceeds will be allocated to those individuals in
proportion to their estimated damages.
As to the Rule 23 Class, the Court finds that the proposed
settlement qualifies for preliminary approval pursuant to FED. R.
CIV. P. 23(e) on the basis that it is "fair, reasonable, and
adequate" to all participants.
The Proposed Notice to Class Members satisfies the requirements of
FED. R. CIV. P. 23(e) and (c)(2). The Court approves the Notice and
orders that it be distributed to Class Members by first-class
United States mail to their last-known addresses as shown in
Defendants' records.
The Fairness Hearing will be held on January 14, 2025.
A full-text copy of the Court's Order dated September 17, 2024, is
available at https://urlcurt.com/u?l=e5iUJY
SLEEP NUMBER: Faces Evans Suit Over Deceptive Pricing Practices
---------------------------------------------------------------
JUNE EVANS, individually and on behalf of all others similarly
situated v. SLEEP NUMBER CORPORATION, Case No. 1:24-at-00755 (E.D.
Cal., Sept. 24, 2024) alleges that Defendant's deceptive pricing
practices were confirmed through the use of The Wayback Machine, a
digital archive of the Internet created by the Internet Archive, a
non-profit organization.
After Defendant received Plaintiff's demand letter, some of the
Products were suddenly advertised online at their full retail
price. It is established that false "reference" pricing violates
state and federal law. Nonetheless, the Defendant employed
inflated, fictitious reference prices for the sole purpose of
increasing its sales. The Defendant engages in this deceptive
practice to deceive consumers, including Plaintiff, into believing
they are receiving a bargain on their in-store and online purchases
and thus to induce them into making a purchase they otherwise would
not have made, says the suit.
As a direct and proximate result of the Defendant's false and
misleading sales practices, Plaintiff and members of the Class,
were induced into purchasing the Products under the false premise
that they were of a higher grade, quality, or value than they
actually were.
The Plaintiff seeks relief in this action individually, and on
behalf of all purchasers of the Products for violations of
California's Consumers Legal Remedies Act, California's False
Advertising Law, and California's Unfair Competition Law.
Ms. Evans purchased one of Defendant's Products, a full-size C2 360
Smart Bed mattress, from Defendant's Bakersfield, California store.
Sleep Number Corp. is a wellness technology company engaged in the
design, manufacturing, marketing and distribution of sleep
solutions.[BN]
The Plaintiff is represented by:
L. Timothy Fisher, Esq.
Luke Sironski-White, Esq.
Joshua R. Wilner, Esq.
BURSOR & FISHER, P.A.
1990 North California Blvd., 9th Floor
Walnut Creek, CA 94596
Telephone: (925) 300-4455
Facsimile: (925) 407-2700
E-mail: ltfisher@bursor.com
lsironski@bursor.com
jwilner@bursor.com
- and -
Greg Sinderbrand, Esq.
SINDERBRAND LAW GROUP, P.C.
2829 Townsgate Road, Suite 100
Westlake Village, CA 91361
Telephone: (818) 370-3912
E-mail: greg@sinderbrandlaw.com
SUNGHUN & MYOUNGJOO: Lahera Suit Alleges Worker Misclassification
-----------------------------------------------------------------
YISILMARIS LAHERA, individually and behalf of all others similarly
situated, Plaintiff v. SUNGHUN & MYOUNGJOO, INC.; SUNG HUN PARK;
AND MYOUNG JOO KIM, Defendants, Case No. 4:24-cv-03545 (S.D. Tex.,
September 20, 2024) seeks to recover back wages, liquidated
damages, and attorneys' fees and costs under the Fair Labor
Standards Act of 1938.
The Defendants employed Plaintiff Lahera as a fast food customer
service worker from approximately July 2023 to July 2024. The
Defendants allegedly misclassified Plaintiff as an independent
contractor even if they acted as Plaintiff's employer. As a result,
the Plaintiff was paid straight time for overtime and did not
receive compensation for approximately 1,040 hours of overtime
during her entire employment with Defendants, says the suit.
Sunghun & Myoungjoo, Inc. is a domestic for-profit corporation that
owns and operates taco shops named "Taco Real." [BN]
The Plaintiff is represented by:
Bridget Davidson, Esq.
SPACE CITY LAW FIRM
440 Louisiana St., Ste 1110
Houston, TX 77002
Telephone: (713) 568-5305
Facsimile: (713) 583-1107
E-mail: bdavidson@spacecitylaw.com
SUPPORTS COORDINATION: Fails to Pay OT Wages, Rosenberger Claims
----------------------------------------------------------------
APRIL ROSENBERGER, on behalf of herself and others similarly
situated, Plaintiff v. SUPPORTS COORDINATION GROUP LLC, d/b/a PA
HEALTH MANAGEMENT, Defendant, Case No. 5:24-cv-05018 (E.D. Pa.,
September 20, 2024) seeks all available relief under the Fair Labor
Standards Act and the Pennsylvania Minimum Wage Act.
The Plaintiff was employed by Defendant as a CHC Service
Coordinator from approximately May 2020 to September 2023 and, like
other CHC Service Coordinators, was paid an annual salary.
Throughout her employment with the Defendant, the Plaintiff did not
receive any overtime wages for hours worked over 40 per week, says
the suit.
Headquartered in Lancaster, PA, Supports Coordination Group LLC
provides home health care services. [BN]
The Plaintiff is represented by:
Peter Winebrake, Esq.
Michelle Tolodziecki, Esq.
WINEBRAKE & SANTILLO, LLC
715 Twining Road, Suite 211
Dresher, PA 19025
Telephone: (215) 884-2491
U.S. BANCORP: Violates ADA, Briand Class Action Suit Alleges
------------------------------------------------------------
WILLIAN BRIAND individually, on behalf of himself, the general
public and on behalf of all other persons and class similarly
situated, that is, a class of claimants whose rights were violated
as were Williams, v. U.S. BANCORP., et al., Case No.
2:24-cv-08227-SB-PD (C.D. Cal., Sept. 24, 2024) seeks monetary
relief pursuant to the American with Disability Act of (1994).
The Plaintiff is also Untied States Citizen with a and vision
impairment issues who falls up under the ADA. The suit alleges that
the acts of the Defendants were negligent, carelessly, recklessly
and the overt acts were the legal (proximate) cause of injures and
damages to Plaintiff.
By the following overt acts or omissions to act, the Defendants
negligent actions occurred by and thru the employees as well as
DOES 1 through 200, inclusive, the Defendants.
The Plaintiff appears pro se.[BN]
VEEVA SYSTEMS: Liu Suit Remanded to King County Superior Court
--------------------------------------------------------------
In the case captioned as DONGQI LIU, Plaintiff, v. VEEVA SYSTEMS
INC., et al., Defendants, CASE NO. 23-cv-1784-BJR (W.D. Wash.),
Judge Barbara Jacobs Rothstein of the United States District Court
for the Western District of Washington granted Mr. Liu's Motion to
Remand. The case is remanded to King County Superior Court.
Plaintiff, Dongqi Liu, originally filed the case in King County
Superior Court alleging that Defendant, Veeva Systems Inc. had
violated a specific provision of Washington State's Equal Pay and
Opportunities Act, RCW 49.58.110, which requires certain employers
to disclose the wage scale or salary range, and a general
description of other compensation and benefits, in each posting for
an available position. Veeva removed the case to the District Court
on the basis of diversity jurisdiction, 28 U.S.C. Sec. 1332(a) and
under the Class Action Fairness Act, 28 U.S.C. Sec. 1332(d). Now
pending before the District Court is Plaintiff's motion to remand
the case.
Mr. Liu argues his case must be remanded because the District Court
lacks subject matter jurisdiction due to his failure to plead
Article III standing. He also contends that the District Court
lacks jurisdiction under CAFA, and the case does not meet the
$75,000 threshold for diversity jurisdiction under 28 U.S.C. Sec.
1332(a).
Veeva argues that the District Court has federal jurisdiction under
both 28 U.S.C. Sec. 1332(a) and CAFA.
Judge Rothstein concludes, "Veeva, as the 'party invoking federal
jurisdiction,' has not met its burden of demonstrating a case or
controversy under Article III standing at this stage of litigation.
Veeva asserts that Mr. Liu's allegation of harm from time wasted
inherently implies that he was a bona fide applicant. But in prior
decisions, this Court has found that plaintiffs must allege, at
minimum, that they applied for the job with good-faith intent, and
as such became personally exposed to the risk of harm caused by the
violation. An allegation of time wasted from going through the
motion of applying for a job without good-faith intent is
insufficient to satisfy Article III standing. Because Plaintiff's
lack of Article III standing implicates the Court's subject matter
jurisdiction, this case will be remanded to King County Superior
Court pursuant to 28 U.S.C. Sec. 1447(c). As such, the Court need
not address the arguments relating to diversity jurisdiction or
jurisdiction under CAFA."
A copy of the Court's Order dated September 23, 2024, is available
at https://urlcurt.com/u?l=HxNV4Q
WALMART INC: Great Value Brand Not Pure Avocado Oil, Golikov Says
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EDIE GOLIKOV, individually and on behalf of all others similarly
situated v. WALMART INC., Case No. 2:24-cv-08211 (C.D. Cal., Sept.
24, 2024) alleges that Walmart makes, markets and sells Great Value
brand avocado oil, but the truth is, it is not pure avocado oil.
According to the complaint, the bottle prominently states that it
contains only avocado oil. The bottle is labeled "Refined Avocado
Oil," and has pictures of avocados. The ingredient list also lists
only "avocado oil." Instead, testing has shown that the oil is
adulterated and impure.
On Nov. 14, 2021, the Plaintiff purchased a bottle of Great Value
Refined Avocado Oil from a Walmart store while living in Tarzana,
California.
When Ms. Golikov purchased the product, the package prominently
stated "Avocado Oil." She read and relied on this statement, and
believed she was purchasing pure avocado oil. But a recent study
shows that this is not true; Defendant’s avocado oil is
adulterated and impure. The Plaintiff was harmed, and brings this
lawsuit on behalf of herself and a class of consumers that
purchased Defendant’s avocado oil.
WALMART INC. is an American multinational retail corporation that
operates a chain of hypermarkets, discount department stores, and
grocery stores in the United States and 23 other countries.[BN]
The Plaintiff is represented by:
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: christin@dovel.com
WESTECH SECURITY: Court Narrows Claims in Carrasquillo Lawsuit
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In the case captioned as ANA CARRASQUILLO, on behalf of herself,
FLSA Collective Plaintiffs, and the Class, Plaintiffs, -against-
WESTECH SECURITY AND INVESTIGATION INC., Defendant, Case No.
23-cv-04931 (MKV) (S.D.N.Y.), Judge Mary Kay Vyskocil of the United
States District Court for the Southern District of New York granted
in part and denied in part Westech's motion to dismiss the amended
complaint. The defendant's motion to strike the class action
allegations is denied without prejudice.
Plaintiff Ana Carrasquillo was formerly employed as a security
guard by Defen Westech Security and Investigation Inc., a security
and private investigation company, for 8 months from approximately
April 2022 through December 31, 2022.
Plaintiff commenced this action by filing a Complaint and, with
leave of the Court, subsequently filed an Amended Complaint.
Plaintiff asserts claims under the Fair Labor Standards Act and the
New York Labor Law, including claims for unpaid overtime wages,
failure to pay wages at a prescribed frequency, and improper record
keeping.
Defendant now moves to dismiss the Amended Complaint pursuant to
Federal Rule of Civil Procedure 12(b)(6) and to strike the class
action allegations contained therein.
Defendant moves to dismiss Plaintiff's FLSA overtime claim for
failure to state a claim, arguing that: (1) the FLSA overtime claim
is based upon "nothing more than conclusory
allegations devoid of any allegations of actual fact;" (2) is
"directly contradicted by documentary evidence;" and (3)
Plaintiff's allegations are "fundamentally flawed" because they are
"inconsistent with other allegations set forth in the Amended
Complaint."
As a general rule, allegations that a plaintiff "typically" or
"generally" worked in excess of 40 hours a week are insufficient to
satisfy the pleading standard in FLSA overtime cases. Nevertheless,
the pleading standard in an FLSA overtime case is satisfied "if
plaintiffs allege that their regularly scheduled workweek for a
given period of time included more than forty hours of work, so
that they were eligible for overtime during every week in which
they worked their regular schedule."
Plaintiff sufficiently does so in this case, the Court finds.
Plaintiff alleges that from the start of her employment until
September 2022, she "was scheduled to work six (6) days per week
for eight (8) hours, from 4:00 p.m. to 12:00 a.m." and once a week
"scheduled to work a double shift of sixteen (16) hours, from 8:00
a.m. to 12:00 a.m.," totaling "fifty-six (56) hours per week" for
this period. She also alleges that from September 2022 to the end
of her employment, she "was scheduled to work five (5) days per
week, from 8:00 a.m. to 4:00 p.m., for a total of forty (40) hours
per week." However, Plaintiff further alleges that, in addition to
her regularly scheduled hours, she arrived at work and began
working an hour before her schedule "each shift," and waited to
debrief her relief guard for an additional twenty minutes after her
schedule "each shift," totaling an additional "six hours and forty
minutes
each week" that she worked.
According to the Court, these allegations, although perhaps sparse
in factual detail, are sufficiently specific to plausibly support
Plaintiff's claim that she was entitled to overtime under the FLSA,
because her "regularly scheduled workweek for a given period of
time included more than forty hours of work, so that [she was]
eligible for overtime during every week in which [she] worked [her]
regular schedule."
Defendant next moves to dismiss Plaintiff's claim that Defendant
failed to pay her wages within seven days of her work in violation
of NYLL Section 191. Defendant argues that Plaintiff's frequency of
pay claim fails because she is not a "manual worker" under Section
191, and therefore, the weekly wages requirement does not apply to
her.
Factual questions as to whether Plaintiff can proffer evidentiary
support for her assertions pertaining to the manual worker
classification are properly examined at a later stage. As a result,
Defendant's motion to dismiss Plaintiff's NYLL frequency of payment
claim is denied.
Defendant next seeks to dismiss Plaintiff's "spread of hours" claim
under the NYLL, arguing that the "spread of hours" provision does
not apply to her because she admits to earning more than the
minimum wage rate during her entire employment with Defendant.
Accordingly, because Plaintiff affirmatively alleges that she was
paid at a rate higher than minimum wage throughout her entire
employment with Defendant, Plaintiff fails to state a "spread of
hours" claim under NYLL, and her claim is dismissed.
Plaintiff also alleges that she was not given a wage notice and
wage statement as required by the NYLL. Plaintiff, however, fails
to allege a concrete harm with respect to these recordkeeping
claims, and she therefore lacks standing to assert these claims.
Accordingly, Plaintiff's wage notice and statement claims under the
NYLL are dismissed sua sponte for lack of Article III standing.
Finally, Defendant seeks to strike the class action allegations in
the Amended Complaint.
First, Defendant argues that the class allegations should be
stricken because "common questions of fact do not predominate over
individual questions. Defendant also argues that the class
allegations should be stricken because Plaintiff has "failed to
identify any other class members" and thus "failed to plausibly
allege that the class is numerous under Rule 23(a)(1)." The
question of whether to strike the class allegations requires a more
developed record on the facts and law. Accordingly, Defendant's
motion to strike the class action allegations is denied without
prejudice to renewal at a later stage in this case.
A full-text copy of the Court's Order dated September 17, 2024, is
available at https://urlcurt.com/u?l=oBo5AE
WINGED FOOT: Court Allows Plaintiffs to Amend Complaint
-------------------------------------------------------
In the case captioned as KEVIN P. CLUNE, et al., Plaintiffs,
-against- DESMOND T. BARRY, Jr., et al., Defendants, 16-cv-4441
(NSR) (JCM) (S.D.N.Y.), Judge Nelson S. Roman of the United States
District Court for the Southern District of New York granted
Plaintiffs' Motion for Leave to Amend. Plaintiffs shall file their
Second Amended Complaint on or before October 7, 2024. The
Defendants are directed to answer, seek leave to move, or otherwise
respond to the Second Amended Complaint on or before October 28,
2024.
Plaintiffs Kevin P. Clune, as Executor of the Estate of Barbara B.
Clune, and James E. Fisher commenced this action on June 13, 2016
against Defendants Desmond T. Barry, Jr., Winged Foot Golf Club,
Inc., John Doe Nos. 1-10, Daniel L. Mosley, Gail G. Garcia, and
John D. Gillespie (all three as Executors of the Estate of George
J. Gillespie, III), alleging that Defendants committed violations
of federal securities law, common law fraud and breach of fiduciary
duties in negotiating lease renewals that destroyed the market
value of Plaintiffs' shares in the Winged Foot Holding
Corporation.
Defendant WFGC maintains and operates a 280-acre property in
Westchester County, New York, which includes two golf courses, a
clubhouse, and other amenities. The WFHC is the owner of the
property.
In 2017, Clune amended his complaint to add Plaintiff Fisher and
additional factual allegations. Plaintiffs subsequently moved for
class certification, which the Court denied on June 26, 2019. The
Second Circuit denied Plaintiffs' request for leave to appeal the
denial of class certification pursuant to Rule 23(f) on November 7,
2019.
On September 20, 2022, Plaintiffs filed the instant motion for
leave to amend their complaint. On April 13, 2023, after
considering the parties' submissions, Magistrate Judge Judith
McCarthy issued the R&R recommending that this Court deny
Plaintiff's Motion. On April 27, 2023, Plaintiffs filed written
objections to the R&R.
Plaintiffs seek leave to file the proposed Second Amended
Complaint, which adds alternative claims for relief under the
Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. Secs.
1961 et seq., based on the same course of conduct that is already
alleged in the present complaint. Plaintiffs argue that they can
plead RICO claims in the alternative based on the same conduct as
their securities fraud claims because there is a dispute between
the parties about whether WFHC shares qualify as securities under
federal law. Judge McCarthy, however, found that Plaintiffs were
merely "recasting" alleged actionable securities fraud conduct as
mail and wire fraud in contravention of the Private Securities
Litigation Reform Act of 1995. Because such recast claims would
ultimately be futile, given they are statutorily prohibited under
the PSLRA, Judge McCarthy denied the Plaintiffs' Motion. The Court
disagrees with the R&R's conclusion that Plaintiffs' RICO claims
are futile under the PSLRA.
Judge Roman says, "Accordingly, at this stage, the Court will
permit Plaintiffs to plead, in the alternative, RICO claims based
on the Defendants' alleged misconduct. Ultimately, the question of
whether the WFHC shares constitute securities will be resolved, and
Plaintiffs will only be able to seek relief based on one of their
claims—either securities fraud or RICO, but not both. The Court
accordingly rejects the R&R's finding that Plaintiffs' proposed
RICO claims are barred by the RICO Amendment and grants Plaintiffs
leave to include such claims in their Second Amended Complaint."
Plaintiffs contend that their proposed RICO claims are timely under
the Second Circuit's "separate accrual" rule. Judge McCarthy,
however, found that the separate accrual rule was "inapplicable" to
Plaintiffs' RICO claims because Plaintiffs' injuries flow from the
same "single alleged scheme" that forms the basis of their
securities fraud claims. The Court disagrees with the R&R's
conclusion that the separate accrual rule is inapplicable to
Plaintiffs' proposed RICO claims.
Judge Roman explains, "In this case, Plaintiffs each suffered a
distinct loss through personally transacting with the Defendants
regarding their WFHC shares. Their alleged additional financial
losses are independent from the original injury stemming from
Defendants' perpetual extension of the sweetheart lease. As a
result, the Court disagrees with the R&R's conclusion that the
separate accrual rule is inapplicable to Plaintiffs' RICO claims
and instead applies the rule to hold that Plaintiffs direct RICO
claims accrued when each Plaintiff sold his individual share—in
2012 (Clune) and 2016 (Fisher)."
A copy of the Court's Opinion & Order dated September 23, 2024, is
available at https://urlcurt.com/u?l=4Hza8i
WINNEBAGO INDUSTRIES: Rosen Law Probes Potential Securities Claims
------------------------------------------------------------------
Why: Rosen Law Firm, a global investor rights law firm, announces
an investigation of potential securities claims on behalf of
shareholders of Winnebago Industries, Inc. (NYSE: WGO) resulting
from allegations that Winnebago may have issued materially
misleading business information to the investing public.
So What: If you purchased Winnebago 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 is this about: On September 23, 2024, during market hours,
Hunterbrook Media published an article called "'Grand Deception' --
Winnebago Muzzles Outcry Over Major Problem That Owners Say Makes
RVs Dangerous, Untowable, Worthless." In this article, Hunterbrook
said that Winnebago's "best-selling Grand Design RVs" appear to be
"experiencing frame failure, potentially affecting thousands of
units sold for more than a billion dollars. This defect has led to
costly damage and potential safety hazards, and rendered some RVs
unroadworthy." Further, the article stated that "Winnebago has used
NDAs, buybacks, and online censorship to silence complaints about
frame failure[.]"
On this news, the price of Winnebago stock fell 2.28% on September
23, 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.
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]
WORLD AQUATICS: 9th Cir. Reverses Class Certification Denial
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In the case captioned as THOMAS A. SHIELDS; KATINKA HOSSZÚ, on
behalf of themselves and all others similarly situated,
Plaintiffs-Appellants, v. WORLD AQUATICS, Defendant-Appellee, No.
23-15092 (9th Cir.) , the United States Court of Appeals for the
Ninth Circuit reversed the United States District Court for the
Northern District of California's denial of class certification for
swimmer plaintiffs.
Plaintiffs-Appellants, a group of professional swimmers and the
International Swimming League, appeal the district court's grant of
summary judgment to Defendant-Appellee Federation Internationale de
Natation (FINA) on their claims under section 1 of the Sherman Act.
(Since the district court's decision, FINA has changed its legal
name to World Aquatics.) The swimmer plaintiffs also appeal the
district court's denial of class certification.
The Third Circuit finds the district court abused its discretion in
refusing to certify the swimmer plaintiffs' proposed damages
classes of swimmers who signed contracts to participate in ISL
competitions in 2018 or participated in ISL events in 2019. Under
Rule 23(a)(4), plaintiffs must demonstrate that "the representative
parties will fairly and adequately protect the interests of the
class."
According to the Third Circuit, the district court abused its
discretion in determining that representation was inadequate
because swimmers "compete for shares of a fixed pot," meaning "any
damages formula will necessarily disfavor some swimmers." Any such
conflict would not be fundamental because each plaintiff shares the
same liability and damages theory: that General Rule 4 precluded
opportunities to compete in ISL events and collect prize money.
Plaintiffs proposed to apportion more money to swimmers with
stronger past performance; "[m]ere speculation as to conflicts that
may develop" from that methodology is not an appropriate reason to
deny certification, the Appellate Court concludes.
The Third Circuit says the district court also abused its
discretion in holding that a class action was not superior to
individual actions because issues related to the allocation of
damages -- as well as the high total damages at stake -- give each
absent class member a strong interest in individually prosecuting
an action. A class action is superior to other methods of
litigation when it "will reduce litigation costs and promote
greater efficiency" or when "no realistic alternative exists," the
Third Circuit states.
A full-text copy of the Court's Memorandum dated
September 17, 2024, is available at https://urlcurt.com/u?l=58wXVf
WYNN LAS VEGAS: Court Approves Class Settlement in FLSA Suit
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The Honorable Andrew Gordon of the United States District Court for
the District of Nevada granted approval of the class action
settlement in the case captioned as SHEILA LITTLE, individually and
on behalf of all others similarly situated, Plaintiff, vs. WYNN LAS
VEGAS, LLC, Defendant, Case No.: 2:23-cv-01150-APG-MDC (D. Nev.).
The Court finds the Settlement to be a reasonable resolution of a
bona fide dispute of wages pursuant to the FLSA. The Settlement is
reasonable in all respects, including the services awards to Sheila
Little, Elena Espino, and Alejandro Benitez, for the work that they
performed on behalf of others, the attorneys' fees and costs of
Plaintiffs' counsel, and the fees of the Settlement Administrator
Phoenix. The Court specifically finds that the Settlement confers a
substantial benefit to all individuals similarly situated to
Plaintiffs, considering the strength of Plaintiffs' claims and the
risk, expense, complexity, and duration of further litigation. The
Court finds that the Settlement is the result of arms-length
negotiations between experienced counsel representing the interests
of both sides and with the assistance of the honorable former
federal Magistrate Judge Carl W. Hoffman.
Service awards for Lead Plaintiff Sheila Little, Elena Espino, and
Alejandro Benitez, in the amount of $10,000 for each (and $30,000
total) are reasonable and hereby approved.
Plaintiffs' attorneys' fees in the amount of $200,000 and costs in
the amount of $10,000 are reasonable and hereby approved.
Fees of the Settlement Administrator, Phoenix Class Action
Administration Solutions, in the amount of $5,000 are reasonable
and hereby approved.
Without affecting the finality of this action, the Court will
retain exclusive and continuing jurisdiction to enforce the
Settlement Agreement.
A copy of the Court's Order dated September 23, 2024, is available
at https://urlcurt.com/u?l=cAmoIL
*********
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