/raid1/www/Hosts/bankrupt/CAR_Public/241016.mbx
C L A S S A C T I O N R E P O R T E R
Wednesday, October 16, 2024, Vol. 26, No. 208
Headlines
ADVANCE AUTO PARTS: Riley Suit Transferred to D. Montana
ADVANCE AUTO PARTS: Smith Suit Transferred to D. Montana
ADVANCE AUTO PARTS: Vogel Suit Transferred to D. Montana
AETNA INC: LGBTQ+ Coverage Class Settlement Gets Court's Prelim OK
AMAZON.COM INC: Seeks to Seal Unredacted Class Cert Opposition
BANK OF AMERICA: Agusta Has Until Oct. 18 to File Amended Complaint
BANK OF AMERICA: Parties in Hamilton Seek Class Briefing Schedule
BAYER HEALTHCARE: Appeals Class Cert. Ruling in Drake Suit
BIO-LAB INC: Hollingsworth Sues Over Hazardous Chemical Exposure
BIO-LAB INC: Long Sues for Negligence, Toxic Chemical Exposure
BMW OF NORTH AMERICA: Filing for Class Cert Bid Due March 25, 2026
BRINKER INT'L: Hale Labor Suit Seeks to Certify Classes
BROWN PAPER: Bid to Compel Arbitration in Open Book Suit Granted
BUILDING SERVICE: Court Grants Bid to Dismiss Navarro FLSA Suit
CASSAVA SCIENCES: Seeks Evidentiary Hearing on Class Cert Bid
CHARTER COMMUNICATIONS: Hearing on Denial Bid Continued to Dec. 9
CHURCH OF JESUS CHRIST: Judge Delays Tithing Discovery of Evidence
CLEVELAND, OH: NAACP Seeks Class Action Status for Overbilling Suit
DENT WIZARD: Griffiths Seeks to Recover Unpaid Overtime Wages
EDEN CREAMERY: Kamal Files Petition for Writ of Mandamus
EL NUEVO: Fails to Pay OT Wages Under FLSA, Pena Suit Says
ELANCO ANIMAL: Faces Securities Class Action Lawsuit
ENERGIZER HOLDINGS: Judge Mendoza Authorizes Class Suit to Proceed
EQONEX LIMITED: S.D. New York Dismisses Li Securities Class Suit
EQUAL EXCHANGE: Filing for Class Cert Bid Extended to Jan. 31, 2025
EVOLVE BANK & TRUST: Bynoe Suit Removed to M.D. Tennessee
EVOLVE BANK & TRUST: Gaskins Suit Transferred to W.D. Tennessee
EVOLVE BANK & TRUST: Starling Suit Transferred to W.D. Tennessee
FRATELLI ROSSETTI: Website Not Blind-Accessible, Abramson Says
FROST BANK: Bid for Arbitration in Criswell Suit Granted in Part
GORUCK HOLDINGS: Website Inaccessible to Blind Users, Suarez Says
HAPPYNEST INC: Leonard Files Suit in Fla. Cir. Ct.
HOMEWORKS ENERGY: Giguere Renewed Bid for Class Cert Granted
HOP ENERGY: Court Grants Bid for Stay in Melville Class Suit
HOP ENERGY: Court Grants Bid for Stay in Mullaney Class Suit
HORMEL FOODS: Court Denies Bid to Dismiss Payne ERISA Class Suit
ILEARNINGENGINES INC: Faces Walker Suit Over Share Price Drop
INNOVATIVE INDUSTRIAL: Handal Appeals Dismissal of 2nd Amended Suit
INVIVYD INC: Massachusetts Court Dismisses Brill Securities Suit
IRIS ENERGY: Securities Artificially Inflated, Williams-Israel Says
JOHNSON, TN: Must Oppose Class Cert Bid by Nov. 22
KATHY KUO: Trippett Sues Over Website's Access Barriers
KISS NAIL: Website Inaccessible to Blind Users, Karim Says
LANSING COMMUNITY: Settles Data Breach Class Suit for $1.45MM
LIVE NATION: Caballero Suit Transferred to D. Montana
LIVE NATION: Moledina Suit Transferred to D. Montana
MAJOR ENERGY: Court Grants Bid to Dismiss/Stay Glikin Class Suit
MERRICK BANK: Capozzi Sues Over Failure to Safeguard PII
META PLATFORMS: EU Court Rejects Bid to Block GBP2.3BB Class Action
NATERA INC: Faces Petersen Class Suit Over PGT-A Deceptive Ads
NEW HAMPSHIRE: Partly Wins Bid to Nix 5 Plaintiffs From G.K. Suit
NEW HAMPSHIRE: Teen Foster Children Class Certified in B.D. Suit
NEW YORK UNIVERSITY: Wins Bid to Strike Sacerdote's Jury Demand
NEXSTAR MEDIA: Carolus Files Suit in Cal. Super. Ct.
NORFOLK SOUTHERN: Sheely Appeals $600M Train Derailment Settlement
NORTHROP GRUMMAN: Court Stays Brzozowski Class Action
NW NATURAL: Faces Deceptive Marketing Class Action Lawsuit
NYC HARLEM: Class Settlement in Medina Suit Gets Final Nod
NYC PUBLIC SCHOOLS: C.S. Sues Over Failure to Provide Equal Access
P&P IMPORTS: Bishop Sues Over Blind-Inaccessible Website
PARTY CITY: Agostino Sues Over Termination Without Notice
PEP BOYS: Violates Labor Code's Seating Mandate, Gutierrez Says
PG&E CORP: Securities Omnibus Claims Objections Overruled in Part
PONTIAC, MI: S. J. Appeals Case Dismissal to 6th Cir.
PRENTKE ROMICH: Fails to Secure Customers' Info, Westman Claims
SAKS FIFTH AVENUE: Dalton Sues Over Blind-Inaccessible Website
SARAH JANE SPIKES: Brown Sues Over Fraudulent Schemes
SEDGWICK CLAIMS: Bailey Sues Over Unlawful Surcharges
SELF EDGE NEW YORK: Abramson Sues Over Blind-Inaccessible Website
SIMPLENURSING LLC: Sued Over Unlawful Disclosure of Identities
SNOWFLAKE INC: Conte Suit Transferred to D. Montana
SOMEONE CARES: Durham Sues Over Failure to Pay Overtime Wages
SOUTH CAROLINA: Joint Bid for Discovery OK'd
STERLING METS: Dowling Suit Removed to E.D. New York
THANG BOTANICALS: Faces Class Action Over Addictive Supplements
TICKETMASTER LLC: Getman Suit Transferred to D. Montana
TICKETMASTER LLC: Miller Suit Transferred to D. Montana
TICKETMASTER LLC: Poluk Suit Transferred to D. Montana
TICKETMASTER LLC: Ryan Suit Transferred to D. Montana
TICKETMASTER LLC: Spencer Suit Transferred to D. Montana
TICKETMASTER LLC: Xian Suit Transferred to D. Montana
TOTAL SAFETY: Fails to Protect Personal Info, Incorvaia Says
TRUE CHOICE: Knueppel Class Action Dismissed with Prejudice
TWO BUDS: Website Not Accessible to Blind, Robles Suit Alleges
UBER TECHNOLOGIES: Gonzalez Sues Over Fraudulent IRS Info Returns
UNITED STATES: Ritter Files Suit in U.S. Ct. of Federal Claims
WALDEN UNIVERSITY: Carroll Seeks Final OK of Settlement
WALMART INC: Court Directs Filing of Discovery Plan in Mejia Suit
WALMART INC: Hansbrough Files Suit in W.D. Arkansas
WELLS FARGO: Matula ERISA Suit Moved From California to Minnesota
WEST BEND: Court Directs Filing of Discovery Plan in Stormy Suit
WEST THOMAS: Class Cert Bid Filing Amended to June 1, 2025
XCEL ENERGY: Bifurcated Discovery Appropriate, Court Says
XCEL ENERGY: Filing for Class Cert Bid in Parker Due Jan. 31, 2025
ZARBEE'S INC: Reply in Support of Class Cert Bid Due Dec. 20
*********
ADVANCE AUTO PARTS: Riley Suit Transferred to D. Montana
--------------------------------------------------------
The case captioned as Brian Riley, individually and on behalf of
all others similarly situated v. Advance Auto Parts, Inc., Case No.
5:24-cv-00397 was transferred from the U.S. District Court for the
Eastern District of North Carolina, to the U.S. District Court for
the District of Montana on Oct. 9, 2024.
The District Court Clerk assigned Case No. 2:24-cv-00136-BMM to the
proceeding.
The nature of suit is stated as Other Personal Property for Breach
of Fiduciary Duty.
Advance Auto Parts -- https://corp.advanceautoparts.com/ -- is a
source for quality auto parts, advice and accessories.[BN]
The Plaintiff is represented by:
Amber Love Schubert, Esq.
SCHUBERT JONCKHEER & KOLBE LLP
2001 Union St Ste 200
San Francisco, CA 94123
Phone: (415) 788-4220
Fax: (415) 788-0161
Email: aschubert@sjk.law
- and -
Scott C. Harris, Esq.
MILBERG COLEMAN BRYSON PHILLIPS GROSSMAN, PLLC
900 W. Morgan Street
Raleigh, NC 27603
Phone: (919) 600-5000
Fax: (919) 600-5035
Email: sharris@milberg.com
The Defendant is represented by:
Kelly Margolis Dagger, Esq.
Thomas Hamilton Segars, Esq.
ELLIS & WINTERS, LLP
P.O. Box 33550
Raleigh, NC 27636
Phone: (919) 573-1292
Fax: (919) 865-7010
Email: kelly.dagger@elliswinters.com
tom.segars@elliswinters.com
ADVANCE AUTO PARTS: Smith Suit Transferred to D. Montana
--------------------------------------------------------
The case captioned as Don Smith, individually and on behalf of all
others similarly situated v. Advance Auto Parts, Inc., Case No.
5:24-cv-00356 was transferred from the U.S. District Court for the
Eastern District of North Carolina, to the U.S. District Court for
the District of Montana on Oct. 9, 2024.
The District Court Clerk assigned Case No. 2:24-cv-00133-BMM to the
proceeding.
The nature of suit is stated as Other Personal Property for Breach
of Fiduciary Duty.
Advance Auto Parts -- https://corp.advanceautoparts.com/ -- is a
source for quality auto parts, advice and accessories.[BN]
The Plaintiff is represented by:
Scott C. Harris, Esq.
MILBERG COLEMAN BRYSON PHILLIPS GROSSMAN, PLLC
900 W. Morgan Street
Raleigh, NC 27603
Phone: (919) 600-5000
Fax: (919) 600-5035
Email: sharris@milberg.com
ADVANCE AUTO PARTS: Vogel Suit Transferred to D. Montana
--------------------------------------------------------
The case captioned as Gregory Vogel, individually and on behalf of
all others similarly situated v. Advance Auto Parts, Inc., Case No.
5:24-cv-00361 was transferred from the U.S. District Court for the
Eastern District of North Carolina, to the U.S. District Court for
the District of Montana on Oct. 9, 2024.
The District Court Clerk assigned Case No. 2:24-cv-00135-BMM to the
proceeding.
The nature of suit is stated as Other Contract for Breach of
Fiduciary Duty.
Advance Auto Parts -- https://corp.advanceautoparts.com/ -- is a
source for quality auto parts, advice and accessories.[BN]
The Plaintiff is represented by:
John A. Bruno, Esq.
Ruth Sheehan, Esq.
Joel R. Rhine, Esq.
RHINE LAW FIRM
1612 Military Cutoff Rd
Charlotte, NC 28203, Ste #300,
Wilmington, NC 28403
Phone: (704) 679-9020
Email: jab@rhinelawfirm.com
RAS@rhinelawfirm.com
jrr@rhinelawfirm.com
- and -
Thomas A. Zimmerman, Jr., Esq.
ZIMMERMAN LAW OFFICES, P.C.
77 West Washington Street, Suite 1220
Chicago, IL 60602
Phone: (312) 440-0020
Fax: (312) 440-4180
Email: tom@attorneyzim.com
- and -
Marita Isabel Ramirez, Esq.
Dannlaw
15000 Madison Avenue
Lakewood, OH 44107
Phone: (513) 645-3488
Fax: (216) 373-0536
Email: mramirez@dannlaw.com
The Defendant is represented by:
Kelly Margolis Dagger, Esq.
Thomas Hamilton Segars, Esq.
ELLIS & WINTERS, LLP
P.O. Box 33550
Raleigh, NC 27636
Phone: (919) 573-1292
Fax: (919) 865-7010
Email: kelly.dagger@elliswinters.com
tom.segars@elliswinters.com
AETNA INC: LGBTQ+ Coverage Class Settlement Gets Court's Prelim OK
------------------------------------------------------------------
ecbawm.com reports that in a landmark decision, the U.S. District
Court for the Southern District of New York has preliminarily
approved a settlement between Aetna and plaintiffs in Goidel v.
Aetna, a federal class action addressing claims of discriminatory
practices against LGBTQ+ policyholders seeking fertility
treatments.
Under the settlement, Aetna will compensate individuals in the
affected class, LGBTQ+ members of certain New York commercial and
student insurance plans who were, or would have been, denied
coverage for artificial insemination.
The lawsuit -- filed in September 2021 by Emma Goidel, Ilana Lee,
Madeleine Lee, and Lesley Brown -- alleged that Aetna's policies
regarding artificial insemination and in vitro fertilization (IVF)
discriminated against LGBTQ+ beneficiaries by subjecting them to
higher out-of-pocket costs and longer waiting periods compared to
heterosexual couples. The plaintiffs argued that these practices
violated Section 1557 of the Affordable Care Act and various state
and local laws.
Under settlement terms, if the settlement receives final court
approval, Aetna will compensate members of the affected class as
follows:
-- Reprocess eligible insurance claims to reimburse class
members for out-of-pocket expenses related to intrauterine
insemination cycles paid for out-of-pocket, at a default amount of
$2,300 per class member or up to the limits of their plans,
whichever is greater.
-- Establish a $2 million common fund to provide additional
compensation to each class member.
-- Cover all costs associated with the administrator and special
master responsible for distributing the common fund.
Aetna has also implemented the following significant changes to its
fertility coverage policies:
-- Aligned its definition of infertility with the guidelines
from the American Society for Reproductive Medicine, ensuring that
all eligible plan members have equitable access to fertility
treatments, regardless of sexual orientation.
-- Introduced a new policy making intrauterine insemination a
standard medical benefit covered for all members.
-- Revised its requirements for progressing to IVF to ensure the
treatment is more accessible for LGBTQ+ individuals.
This decision solidifies a triumph for equitable access to
healthcare services for everyone looking to build their families,"
said Alison Tanner, senior litigation counsel for reproductive
rights and health at the National Women's Law Center. "We are ready
to help affected class members receive the compensation they
deserve, and we remain committed to advocating for equitable access
to fertility treatments for all."
"The Court's preliminary approval allows us to move forward with
distributing real compensation to the LGBTQ+ class members affected
by this policy," said Zoe Salzman, Partner at ECBAWM.
If you believe you are in the class of individuals covered by this
settlement, please visit this page or contact: 1-800-205-6861.
ECBAWM attorneys Debbie Greenberger, Eric Abrams, and Zoe Salzman,
along with paralegal, Carlos Martinez-Montes represent the
plaintiffs in this settlement, as well as attorneys from the
National Women's Law Center. [GN]
AMAZON.COM INC: Seeks to Seal Unredacted Class Cert Opposition
--------------------------------------------------------------
In the class action lawsuit captioned as KAELI GARNER, et al., v.
AMAZON.COM, INC., a Delaware Corporation, and AMAZON.COM SERVICES
LLC, a Delaware Limited Liability Company, Case No.
2:21-cv-00750-RSL (W.D. Wash.), the Defendants ask the Court to
enter an order sealing the following:
-- Amazon's unredacted Opposition to Plaintiffs' motion for
class
certification;
-- The unredacted Declaration of Y. Monica Chan and Exhibits
12-30,
40-46;
-- The unredacted Declaration of Nathan Bogusz and Exhibits
A-C;
-- The unredacted Declaration of Leila Rouhi and Exhibits I-K,
V-
II;
-- The unredacted Declaration of Nedim Fresko and Exhibits
JJ-KK;
-- Rebuttal Report and Declaration of Richard Stern; and
-- Rebuttal Report and Declaration of Professor Lorin Hitt.
These materials contain confidential and commercially sensitive
information regarding Amazon's internal practices and policies,
metrics regarding proprietary technology, non-public profit and
loss information, and the Plaintiffs' account records— the
disclosure of which would cause harm to Amazon or reveal
Plaintiffs’ non-public information.
On Sept. 13, 2024 and Oct. 4, 2024, pursuant to LCR 5(g)(3)(A), the
parties conferred about the need to seal portions of Amazon's
Opposition, supporting declarations, and exhibits. Plaintiffs
support provisionally filing under seal Plaintiffs’ account
records but take no position with respect to the remaining
documents.
Amazon.com is an online retailer that offers a wide range of
products.
A copy of the Defendants' motion dated Oct. 7, 2024, is available
from PacerMonitor.com at https://urlcurt.com/u?l=NjyejB at no extra
charge.[CC]
The Defendants are represented by:
Brian D. Buckley, Esq.
Y. Monica Chan, Esq.
Jedediah Wakefield, Esq.
Tyler G. Newby, Esq.
Armen N. Nercessian, Esq.
Garner F. Kropp, Esq.
Melissa Lawton, Esq.
Janie Yoo Miller, Esq.
Esther Galan, Esq.
FENWICK & WEST LLP
401 Union Street, 5th Floor
Seattle, WA 98101
Telephone: (206) 389-4510
Facsimile: (206) 389-4511
E-mail: bbuckley@fenwick.com
jwakefield@fenwick.com
tnewby@fenwick.com
anercessian@fenwick.com
gkropp@fenwick.com
mlawton@fenwick.com
jmiller@fenwick.com
egalan@fenwick.com
BANK OF AMERICA: Agusta Has Until Oct. 18 to File Amended Complaint
-------------------------------------------------------------------
In the lawsuit entitled ANTHONY M. AGUSTA, Plaintiff v. BANK OF
AMERICA, Defendant, Case No. 5:24-cv-00430-TJC-PRL (M.D. Fla.),
Magistrate Judge Philip Lammens of the U.S. District Court for the
Middle District of Florida, Ocala Division, grants the Plaintiff
until Oct. 18, 2024, to file both an amended complaint and a
properly completed affidavit.
Plaintiff Anthony M. Augusta, who is proceeding pro se, filed this
action against Defendant Bank of America. The Plaintiff seeks to
proceed in forma pauperis. For the reasons explained in this Order,
Judge Lammens rules that the Plaintiff's motion to proceed in forma
pauperis will be taken under advisement, and, in an abundance of
caution, the Plaintiff will be given an opportunity to amend the
complaint and cure the deficient affidavit in support of his
motion.
As a preliminary matter, Judge Lammens says the Plaintiff's motion
to proceed in forma pauperis is deficient because the affidavit in
support of the motion is unsigned. Rather than denying the motion
outright, however, Judge Lammens will provide the Plaintiff with an
opportunity to cure the deficient affidavit.
Turning to the Court's review of the complaint, Judge Lammens says
it appears that the Plaintiff's claims arise out of his
dissatisfaction regarding his attempt to claim part of the proceeds
of a class action settlement involving Bank of America in Farrell
v. Bank of Am., N.A., 327 F.R.D. 422 (S.D. Cal. 2018), a case
previously before the United States District Court for the Southern
District of California, Case No.: 3:16-cv-00492-L-W.
The Plaintiff's complaint consists of two short pages, the majority
of which appears to be a recitation from a court-authorized notice
in the class action, Judge Lammens notes. The Plaintiff alleges
that he is entitled to reimbursement of "extended overdrawn balance
charges," and that he was charged an overdraft fee of $35 "many
times" in 2014, 2015, and 2016.
As set forth in the complaint, the Plaintiff seeks "return of my
monies and punitive damages in the amount of $10.000." He contends
the bank's position is that he does not qualify for reimbursement.
As best can be discerned from the Plaintiff's scant allegations
(which are lacking in well-pled facts), the Plaintiff seeks to
challenge the Bank's position that he is not qualified to
reimbursement of the overdraft charges.
Judge Lammens finds that the Plaintiff's complaint does not meet
the pleading requirements set forth in the Federal Rules of Civil
Procedure. The Plaintiff's complaint does not contain a short plain
statement of the claim showing that the pleader is entitled to
relief, as required by Rule 8 of the Federal Rules of Civil
Procedure. Although the Plaintiff is proceeding pro se, he is still
required to conform to procedural rules, and the Court is not
required to rewrite a deficient pleading.
Further, to the extent that the Plaintiff is alleging the Defendant
violated his right to reimbursement arising out of the settlement
agreement, Judge Lammens points out that this Court is without
subject matter jurisdiction to hear his claim. Settlement
agreements are treated as contracts and governed by state law.
By the Plaintiff's own admission, the amount in controversy is less
than $75,000. Even if the Court assumes that the Plaintiff's
reference to "$10.000" is meant to be a demand for $10,000, Judge
Lammens says the amount in controversy is still far from met. The
Plaintiff has failed to establish a basis for diversity
jurisdiction.
Further and significantly, Judge Lammens notes it appears that the
Plaintiff's complaint amounts to an inappropriate post-judgment
attack on the proceedings in Farrell, as the complaint alleges the
same injuries as those in the class-action and arises out of the
same law as that in Farrell.
A review of the public docket in Farrell v. Bank of Am., N.A, in
the United States District Court for the Southern District of
California, Case No.: 3:16-cv-00492-L-W, reveals that judgment was
entered in that case on Sept. 19, 2018, following court approval of
the parties' settlement agreement, Judge Lammens says. Accordingly,
the Plaintiff's claim appears to be barred by principles of res
judicata. If the Plaintiff has a viable basis for a claim, Judge
Lammens finds he has failed to adequately allege it.
Accordingly, the Court rules that the Plaintiff's motion to proceed
in forma pauperis is taken under advisement, and the Plaintiff will
have until Oct. 18, 2024, to file both an amended complaint and a
properly completed affidavit in support of his motion to proceed in
forma pauperis. The amended complaint must comply with all pleading
requirements contained in Rules 8, 9, 10, and 11 of the Federal
Rules of Civil Procedure, as well as those contained in the Local
Rules of the Middle District of Florida. Failure to comply with
this Order may result in a recommendation that this action be
dismissed for failure to prosecute pursuant to Local Rule 3.10.
Further, the Plaintiff is cautioned that despite proceeding pro se,
he is required to comply with this Court's Local Rules, the Federal
Rules of Civil Procedure, and the Federal Rules of Evidence. The
Plaintiff may obtain a copy of the Local Rules from the Court's
website or by visiting the Office of the Clerk of Court. Also,
resources and information related to proceeding in court without a
lawyer, including a handbook entitled Guide for Proceeding Without
a Lawyer, can be located on the Court's website. The Plaintiff
should also consult the Middle District of Florida's Discovery
Handbook for a general discussion of this District's discovery
practices.
A full-text copy of the Court's Order is available at
https://tinyurl.com/436t3pmd from PacerMonitor.com.
BANK OF AMERICA: Parties in Hamilton Seek Class Briefing Schedule
------------------------------------------------------------------
In the class action lawsuit captioned as A.M. HAMILTON, an
individual, on behalf of himself and all others similarly situated,
v. BANK OF AMERICA, N.A., Case No. 2:22-cv-00374-ART-EJY (D. Nev.),
the Parties ask the Court to enter an order granting the
stipulation to set a briefing schedule on the Individual
Plaintiffs' motion to stay discovery and motion to stay case.
In order to ensure counsel for BANA has sufficient time to review
the forthcoming amended complaint to determine which Plaintiffs and
claims remain in the litigation, the Parties have agreed that
BANA's deadline to respond to the Individual Plaintiffs' Motion to
Stay Discovery and Motion to Stay Case shall be extended 14 days
until Oct. 22, 2024 and further that the Individual Plaintiffs
shall have 14 days until Nov. 5, 2024 to file their Reply.
This is the first request for an extension of these deadlines,
which were set upon the filing of the Individual Plaintiffs'
motions on Sept. 24, 2024.
On Sept. 4, 2024, the Court ordered pursuant to the Parties'
Stipulation that the Plaintiffs must amend their respective
operative Complaints by no later than Oct. 8, 2024.
Bank of America offers saving and current account, housing and auto
loans, and online banking.
A copy of the Parties' motion dated Oct. 7, 2024, is available from
PacerMonitor.com at https://urlcurt.com/u?l=kw96lg at no extra
charge.[CC]
The Plaintiff is represented by:
Michael Kind, Esq.
KIND LAW
8860 South Maryland Parkway, Suite 106
Las Vegas, NV 89123
Telephone: (702) 337-2322
E-mail: mk@kindlaw.com
- and -
George Haines, Esq.
Gerardo Avalos, Esq.
FREEDOM LAW FIRM
8985 S. Eastern Ave., Suite 350
Las Vegas, NV 89123
Telephone: (702) 880-5554
E-mail: ghaines@freedomlegalteam.com
gavalos@freedomlegalteam.com
- and -
Joshua Swigart, Esq.
SWIGART LAW GROUP, APC
221 Camino del Rio S., Suite 308
San Diego, CA 92108
Telephone: (866) 219-3343
E-mail: josh@swigartlawgroup.com
- and -
George O. West III, Esq.
LAW OFFICES OF GEORGE O. WEST III
10161 Park Run Drive, Suite 150
Las Vegas, NV 89145
Telephone: (702) 664-1168
E-mail: gowesq@cox.net
- and -
E. Adam Webb, Esq.
WEBB, KLASE & LEMOND LLC
1900 The Exchange S.E., Suite 480
Atlanta, GA 30339
Telephone: (770) 444-0773
E-mail: adam@webbllc.com
The Defendant is represented by:
Kelly H. Dove, Esq.
SNELL & WILMER LLP
3883 Howard Hughes Parkway, Suite 1100
Las Vegas, NV 89169
Telephone: (702) 784-5200
E-mail: kdove@swlaw.com
- and -
James McGarry, Esq.
GOODWIN PROCTER LLP
100 Northern Avenue
Boston, MA 02210
Telephone: (617) 570-1000
E-mail: jmcgarry@goodwinlaw.com
- and -
Yvonne Chan, Esq.
JONES DAY
100 High Street
Boston, MA 02210
Telephone: (617) 449-6914
E-mail: ychan@jonesday.com
BAYER HEALTHCARE: Appeals Class Cert. Ruling in Drake Suit
----------------------------------------------------------
BAYER HEALTHCARE LLC is taking an appeal from a court order
granting the Plaintiffs' motion to certify class in the lawsuit
entitled Doniece Drake, et al., individually and on behalf of all
others similarly situated, Plaintiffs, v. Bayer Healthcare LLC,
Defendant, Case No. 3:22-cv-01085-MMA-JLB, in the U.S. District
Court for the Southern District of California.
As previously reported in the Class Action Reporter, the case
involves the Defendant's popular "One A Day" ("OAD") line of
multivitamins. Specifically, the Plaintiffs' Second Amended
Complaint concerns the Defendant's OAD Natural Fruit Bites
Multivitamin products, including the following "four varieties:
Men's, Women's, Men's 50+, and Women's 50+." The Plaintiffs allege
that the Defendant's "advertising and marketing campaign is false,
deceptive, and misleading" because it holds its products out as
"natural" even though they "contain non-natural, synthetic
ingredients."
The Plaintiffs filed a motion for class certification, which the
Court granted through an Order entered by Judge Michael Anello. The
Court also granted the parties' pending motions to seal and denied
the parties' motions for sanctions.
The Court concluded that the Plaintiffs have met all the
requirements of Rule 23(b)(3), as well as Rule 23(a). The Court
also found that compelling reasons have been shown to seal the
business information of Circana Inc. and the Defendant, as well as
the Plaintiffs' personal information. Therefore, the Court granted
the parties' motions to seal.
The appellate case is captioned Drake, et al. v. Bayer Healthcare
LLC, Case No. 24-5956, in the United States Court of Appeals for
the Ninth Circuit, filed on October 1, 2024. [BN]
BIO-LAB INC: Hollingsworth Sues Over Hazardous Chemical Exposure
-----------------------------------------------------------------
BESSIE HOLLINGSWORTH, KASSEY NICOLE GOOLSBY, ERNESTINE SIMMONS, and
LISA WISE, individually and on behalf of all others similarly
situated, Plaintiffs v. BIO-LAB, INC. and KIK CONSUMER PRODUCTS,
INC., Defendants, Case No. 1:24-cv-04414-SEG (N.D. Ga., Sept. 30,
2024) is a class action complaint against the Defendants for
negligence, nuisance, strict liability, trespass, and medical
monitoring arising from alleged unlawful conduct.
According to the complaint, Bio-Lab operates a chemical
manufacturing facility on Old Covington Highway in Conyers,
Rockdale County, Georgia. On September 29, 2024, a fire suppression
sprinkler at the plant activated, spraying water onto chemicals
inside the plant, causing a chemical reaction that produced
hazardous gas. The incident also caused a fire on the roof of the
Plant, which caused the roof to collapse. Over 24 hours after the
beginning of the disaster, the Plaintiffs and other residents in
nearby areas continued reporting a heavy chemical haze throughout
the community and a strong chlorine smell.
As a result of the fire and release of chemicals that is the
subject of this action, the Plaintiffs suffered, and continue to
suffer from the loss of use and enjoyment of their homes and other
related losses. The Plaintiffs have also experienced the effects of
exposure including eye irritation, dizziness, and coughing, says
the suit.
Bio-Lab manufactures pool and spa chemicals under brands including
BioGuard, SpaGuard, Spa Essentials, Natural Chemistry, SeaKlear,
and AquaPill.[BN]
The Plaintiffs are represented by:
Kyle G.A. Wallace, Esq.
SHIVER HAMILTON CAMPBELL, LLC
3490 Piedmont Road NE, Suite 640
Atlanta, GA 30305
Telephone: (470) 990-7166
E-mail: kwallace@shiverhamilton.com
- and -
Jeffrey S. Goldenberg, Esq.
Todd B. Naylor, Esq.
Robert B. Sherwood, Esq.
GOLDENBERG SCHNEIDER, L.P.A.
4445 Lake Forest Drive, Suite 490
Cincinnati, OH 45242
Telephone: (513) 345-8297
Facsimile: (513) 345-8294
E-mail: jgoldenberg@gs-legal.com
tnaylor@gs-legal.com
rsherwood@gs-legal.com
- and -
Charles E. Schaffer, Esq.
Nicholas J. Elia, Esq.
LEVIN SEDRAN & BERMAN LLP
510 Walnut Street, Suite 500
Philadelphia, PA 19106
Telephone: (215) 592-1500
Facsimile: (215) 592-4663
E-mail: cschaffer@lfsblaw.com
nelia@lfsblaw.com
- and -
Nicholas A. Migliaccio, Esq.
Jason Rathod, Esq.
MIGLIACCIO & RATHOD, LLP
412 H Street NE
Washington, D.C. 20002
Telephone: (202) 470-3520
E-mail: nmigliaccio@classlawdc.com
jrathod@classlawdc.com
BIO-LAB INC: Long Sues for Negligence, Toxic Chemical Exposure
--------------------------------------------------------------
TONYA LONG, individually and on behalf of all others similarly
situated, Plaintiff v. BIO-LAB, INC. and KIK CONSUMER PRODUCTS,
INC., Defendants, Case No. 1:24-cv-04411-SEG (N.D. Ga., Sept. 30,
2024) is a class action against the Defendants for negligence,
nuisance, strict liability, trespass, and medical monitoring
arising from alleged unlawful conduct.
On September 29, 2024, at approximately 5:00 a.m., a chemical fire
broke out on the roof of the KIK Bio-Lab facility in Conyers,
Georgia. Around that same time, a building sprinkler activated,
spraying water onto water reactive chemicals and triggering
explosive chemical reactions. Massive walls of smoke, containing
toxic chemicals such as chlorine, hydrochloric acid, hydrogen
cyanide, hydrogen bromide and phosgene billowed throughout Rockdale
County. These chemicals are incredibly caustic, and can cause
severe, life-changing injuries with even short-term exposures, says
the suit.
Plaintiff Tonya Long, along with thousands of other residents, was
forced to evacuate her home with no advanced notice. She remains
evacuated and scared of the long-term implications for her family.
The Defendants' recklessness has upended the lives of nearly
100,000 Georgians, who must now fear for their health and the
habitability of their neighborhoods, says the Plaintiff.
Bio-Lab manufactures pool and spa chemicals under brands including
BioGuard, SpaGuard, Spa Essentials, Natural Chemistry, SeaKlear,
and AquaPill.[BN]
The Plaintiff is represented by:
William Maxwell Compton, Esq.
MORGAN & MORGAN
200 Stephenson Ave. Suite 200
Savannah, GA 31405
Telephone: (912) 443-1017
Facsimile: (912) 443-1184
E-mail: MCompton@forthepeople.com
- and -
T. Michael Morgan, Esq.
MORGAN & MORGAN, P.A.
20 N Orange Ave., Suite 1600
Orlando, FL 32801
Telephone: (407) 418-2031
Facsimile: (407) 245-3384
E-mail: mmorgan@ForThePeople.com
- and -
Rene F. Rocha, Esq.
MORGAN & MORGAN, COMPLEX LITIGATION GROUP
400 Poydras Street, Suite 1515
New Orleans, LA 70130
Telephone: (954) 318-0268
Facsimile: (954) 327-3018
E-mail: rrocha@ForThePeople.com
- and -
Frank Petosa, Esq.
MORGAN & MORGAN, COMPLEX LITIGATION GROUP
8151 Peters Road Suite 4000
Plantation, FL 33324
Telephone: (954) 318-0268
Facsimile: (954) 327-3018
E-mail: fpetosa@ForThePeople.com
BMW OF NORTH AMERICA: Filing for Class Cert Bid Due March 25, 2026
------------------------------------------------------------------
In the class action lawsuit captioned as CRAFT v. BMW OF NORTH
AMERICA, LLC, et al., Case No. 2:24-cv-06826 (D.N.J., Filed June 7,
2024), the Hon. Judge William J. Martini entered an order:
-- Disclosures: Nov. 8, 2024
-- Service of initial written Nov. 11, 2024
Discovery:
-- Motions to amend or to add April 6, 2025
parties to be filed:
-- Factual discovery to be Sept. 11, 2025
Completed:
-- Plaintiff's expert report(s) Oct. 26, 2025
Due:
-- Defendant's expert report(s) Dec. 10, 2025
Due:
-- Plaintiff's rebuttal expert Jan. 9, 2026
report(s) due:
-- Expert depositions to be Feb. 8, 2026
Completed:
-- Class Certification motion March 25, 2026
to be filed:
-- Dispositive motions to be filed: March 25, 2026
The nature of suit states diversity-breach of contract.
BMW of North America markets and sells motor vehicles.[CC]
BRINKER INT'L: Hale Labor Suit Seeks to Certify Classes
-------------------------------------------------------
In the class action lawsuit captioned as AMANDA HALE and JESUS
GOMEZ., on behalf of themselves and all others similarly situated,
and the general public, v. BRINKER INTERNATIONAL, INC., a Delaware
corporation; BRINKER INTERNATIONAL PAYROLL COMPANY, L.P., a
Delaware limited partnership; BRINKER RESTAURANT CORPORATION, a
Virginia corporation; and DOES 1 through 50, inclusive, Case No.
3:21-cv-09978-VC (N.D. Cal.), the Plaintiff asks the Court to enter
an order certifying the following classes:
Missed Meal Period Class
"All non-exempt employees of Defendants in California who
signed
the same arbitration agreement as Plaintiffs Hale and Gomez,
who
worked a shift in excess of 6 hours, and whose timekeeping
records
do not reflect any recorded meal period for such shifts, during
the time period Nov. 18, 2018 through the present."
Missed Rest Period Class
"All non-exempt positions of Defendants in California who
signed
the same arbitration agreement as Plaintiffs Hale and Gomez,
and
who worked a shift of at least 3.5 hours during the time period
Nov. 18, 2018 through the present.
Cell Phone Reimbursement Class
"All non-exempt positions of Defendants in California who
signed
the same arbitration agreement as Plaintiffs Hale and Gomez,
and
who were required to utilize their personal cell phone to use
the
application HotSchedules, during the time period Nov. 18, 2018
through the present."
The Plaintiff further moves for an order pursuant to Fed. R. Civ.
P. 23(g) appointing Setareh Law Group and Haines Law Group, APC, as
class counsel.
This Motion is made pursuant to Fed. R. Civ. P. 23(a) and 23(b)(3).
This Motion is based on this Notice of Motion, the Memorandum of
Points and Authorities, the Compendium of Evidence filed herewith,
all other documents on file with the Court in this action, and any
further argument as may be made at the hearing
The Plaintiff Hale worked as a food server employed with Brinker at
a Chili's Grill & Bar restaurant location in Simi Valley, CA. Ms.
Hale was employed with Brinker from December of 2005 until July
2020.
Brinker owns and operates over one hundred restaurants in
California, including such chains as Chili's Grill and Bar and
Maggiano's Little Italy.
A copy of the Plaintiffs' motion dated Oct. 7, 2024, is available
from PacerMonitor.com at https://urlcurt.com/u?l=HmSUd2 at no extra
charge.[CC]
The Plaintiffs are represented by:
Shaun Setareh, Esq.
Jose Maria D. Patino, Jr., Esq.
Tyson Gibb, Esq.
SETAREH LAW GROUP
9665 Wilshire Boulevard, Suite 430
Beverly Hills, CA 90212
Telephone: (310) 888-7771
Facsimile: (310) 888-0109
E-mail: shaun@setarehlaw.com
jose@setarehlaw.com
tyson@setarehlaw.com
- and -
Paul K. Haines, Esq.
Fletcher W. Schmidt, Esq.
Andrew J. Rowbotham, Esq.
HAINES LAW GROUP, APC
2155 Campus Drive, Suite 180
El Segundo, CA 90245
Telephone: (424) 292-2350
Facsimile: (424) 292-2355
E-mail: phaines@haineslawgroup.com
fschmidt@haineslawgroup.com
arowbotham@haineslawgroup.com
BROWN PAPER: Bid to Compel Arbitration in Open Book Suit Granted
----------------------------------------------------------------
Judge Andrew G. Schopler of the U.S. District Court for the
Southern District of California grants the Defendants' motion to
compel arbitration in the lawsuit entitled OPEN BOOK THEATRE
COMPANY, individually and on behalf of all others similarly
situated, Plaintiff v. BROWN PAPER TICKETS, LLC, et al.,
Defendants, Case No. 3:24-cv-00076-AGS-VET (S.D. Cal.).
The Defendants seek to compel arbitration of this putative class
action based on the provisions of an online point-and-click
agreement.
The legal battlefield here is the website of Defendant Brown Paper
Tickets, LLC, which handles ticket sales for event organizers. To
set up an "event" on that site, visitors are first presented with a
checkbox and notice. The notice affirms: "I have read and agree to
the Brown Paper Tickets Event Organizer Terms of Usage." Before
proceeding, users must "affirmatively check" the box beside the
notice.
The final eight words of the notice are displayed as a
color-contrasted "blue hyperlink," which, if clicked, takes users
to a page containing the promised Terms of Usage. According to
those terms, any dispute that "arises out of or relates to" the
agreement and that cannot be resolved by mediation will be
"resolved by arbitration administered by the American Arbitration
Association under its Commercial Arbitration Rules."
Plaintiff Open Book Theatre Company created an account and listed
three of its events on Brown Paper Tickets' website. Ticket sales
for these performances generated $5,547 for Open Book. Believing it
was entitled to full payment "within 10 days of the event," and not
having been paid within that time, Open Book filed a putative class
action against Brown Paper Tickets and its parent company,
codefendant Events.com, Inc.
The Defendants now move to compel arbitration of all claims or,
alternatively, to dismiss the complaint.
In opposing the defense's motion to compel arbitration, Open Book
argues that: (1) no arbitration agreement was formed; (2) even if
one was formed, it was unconscionable; and (3) regardless,
Events.com, as a nonsignatory, cannot invoke the arbitration
provision.
While Open Book relegates this agreement to the "browsewrap"
category, Judge Schopler finds that is plainly not so. The website
does not seek to bind users by their passive browsing. This
qualifies as a "modified" clickwrap agreement. That is, rather than
presenting visitors the full contractual terms on screen, users are
notified of the existence of the website's terms of use and advised
that by making some type of affirmative act, often by clicking a
button, they are agreeing to them.
Because Open Book incorrectly analyzes this online agreement
through a browsewrap lens, its arguments about conspicuousness
mostly miss the mark, Judge Schopler opines. In short, the design
of the website and the transactional context provided reasonably
conspicuous notice that the terms of usage to which the user would
be bound--including arbitration terms--were set forth in the
hyperlinked document.
Next, Open Book takes issue with the evidence of assent. It points
out that users are not required to open the link, read the terms,
and assent to the terms that waive their rights, nor is there any
evidence that Open Book in fact clicked on the hyperlink.
Yet, Judge Schopler explains, the issue is not whether Open Book
clicked on the hyperlink, but whether it clicked on the checkbox
for: "I have read and agree to" the hyperlinked terms of usage.
Judge Schopler points out that Open Book must have done so, because
users must check that box before they are able to create an event.
And "checking a box or clicking on a button" may manifest the
necessary assent.
A user's failure to click on the hyperlink or read the hyperlinked
terms is irrelevant, Judge Schopler holds. If a party has signed a
contract without reading it, she cannot successfully argue that the
contract is unenforceable as long as she was not deprived of the
opportunity to read it, Judge Schopler opines, citing Signavong v.
Volt Mgmt. Corp., No. C07-515JLR, 2007 WL 1813845, at *3 (W.D.
Wash. June 21, 2007).
During Brown Paper Tickets' event-creation process, users cannot
move on to create an event on the website until they first agree to
the hyperlinked terms of usage (including the arbitration
provisions) by affirmatively checking a box. Judge Schopler points
out that this creates the necessary "forced confrontation with the
terms" and "forced decision to accept or reject them." Thus, Open
Book unambiguously manifested assent to the terms--including the
arbitration provision--and the parties formed an agreement to
arbitrate.
Even if an arbitration agreement was formed, Open Book contends
that it fails due to its procedural and substantive
unconscionability. But this Court cannot reach those issues. So,
Judge Schopler says, this case must be referred to arbitration, and
all arguments going to the scope or enforceability of the
arbitration provision are for the arbitrator to decide in the first
instance.
Finally, Open Book objects to the invocation of arbitration by
Events.com because it is not an intended third party beneficiary of
the alleged agreement to arbitrate. This argument is entirely
beside the point, Judge Schopler says. Open Book is equitably
estopped from avoiding arbitration as to its claims against
Events.com and must face an arbitrator's decision on any remaining
issues.
Accordingly, the Court grants the Defendants' motion to compel
arbitration, and all claims against both Defendants, including the
class claims, are referred to arbitration. This matter is stayed
pending resolution of arbitration. The alternative dismissal motion
is denied as moot.
While arbitration is pending or proceeding, Judge Schopler directs
the parties to file a joint status report on Dec. 1, 2024, and
every three months thereafter (that is, March 1, 2025; June 1,
2025; etc.). Also, within 14 days of the arbitration action's
conclusion, the parties must file a joint status report.
A full-text copy of the Court's Order is available at
https://tinyurl.com/2p9f6ecj from PacerMonitor.com.
BUILDING SERVICE: Court Grants Bid to Dismiss Navarro FLSA Suit
---------------------------------------------------------------
Judge Allyne R. Ross of the U.S. District Court for the Eastern
District of New York issued an Opinion & Order granting the
Defendants' motion to dismiss the lawsuit styled MARIA ISABEL
ALVARADO NAVARRO, ARMANDO ROMERO ROJO, and CHRISTIAN "RICARDO
RODRIGUEZ" ENRIQUE CAMACHO ALVARADO, a minor by his mother and
natural guardian, MARIA I. ALVARADO NAVARRO; and DIEGO "ALEXIS"
ELEAZAR CAMACHO ALVARADO, a minor by his mother and natural
guardian MARIA I. ALVARADO NAVARRO, for himself and all others
similarly situated, Plaintiffs v. BUILDING SERVICE, INC., d/b/a
GUADALUPE "LUPE" CASTILLO RAMIREZ AND ESTEBAN ALVARADO NAVARRO,
Defendants, Case No. 1:23-cv-07343-ARR-MMH (E.D.N.Y.).
The Plaintiffs, who performed cleaning and maintenance work for
Building Service, Inc., filed this putative class action against
the company and its operators alleging violations of the Fair Labor
Standards Act ("FLSA"); New York Labor Law ("NYLL"); Title VII of
the Civil Rights Act ("Title VII"); and the New York State Human
Rights Law ("NYSHRL").
Plaintiff Maria Isabel Alvarado Navarro is a Mexican national, who
lives in Queens County, New York, without lawful immigration
status. Between December 2022 and June 2023, Maria worked for
Building Service, which provides cleaning and maintenance services
to commercial properties and businesses in the tri-state area. The
Plaintiffs allege that Maria worked more than 60 hours per week,
including multiple shifts lasting more than 10 hours, and often
worked alongside her sons Christian Ricardo Rodriguez Enrique
Camacho Alvarado and Diego Alexis Eleazar Camacho Alvarado and her
brother, Armando Romero Rojo, who are also named as Plaintiffs.
Maria recorded her hours by clocking in and out during her shifts
but alleges that her time records were subsequently manipulated by
Building Service's operators--Individual Defendants Guadalupe
Castillo Ramirez and Esteban Alvarado Navarro--to indicate shorter
shifts than actually worked. The FAC is silent concerning hours,
time records, and compensation for Ricardo Rodriguez, Alexis, and
Armando.
In addition to manipulating Maria's hours, the First Amended
Complaint ("FAC") alleges that Lupe engaged in a range of other
exploitative behaviors involving Maria and her family.
Specifically, the FAC alleges that Lupe verbally belittled Maria,
attempted to "involve" Maria's family in "dubious financial
transactions," and threatened retaliation for reporting illegal
conduct.
The Plaintiffs allege that the Defendants failed to pay them earned
wages in violation of the FLSA and NYLL; failed to pay them
overtime wages in violation of the FLSA and NYLL; failed to pay
them spread-of-hours compensation in violation of the NYLL; and
failed to provide required wage statements and notices in violation
of the NYLL
Additionally, the FAC alleges that the Defendants subjected Maria
to unlawful discrimination on the basis of her national origin and
immigration status in violation of Title VII and the NYSHRL.
The Defendants move to dismiss the federal claims pursuant to Rule
12(b)(6) of the Federal Rules of Civil Procedure, citing the dearth
of factual details in the FAC. As to the state law claims, the
Defendants urge the Court to decline to exercise supplemental
jurisdiction.
The bulk of the FAC concerns the Plaintiffs' allegations that they
were underpaid for the number of hours they worked, in violation of
both the FLSA and NYLL. Because the FAC lacks concrete allegations
concerning the actual hours worked by or compensation provided to
any individual, Judge Ross finds the Plaintiffs have not stated a
plausible claim for unpaid wages or overtime premiums under either
federal or state law.
With respect to the Plaintiffs' discrimination claims arising under
Title VII and the NYSHRL, in essence, the FAC alleges that the
Defendants harassed Maria and exploited her vulnerability as an
undocumented immigrant by involving or attempting to involve her in
fraudulent financial transactions. The FAC asserts that the
Defendants' behavior amounted to disparate treatment on the basis
of national origin or immigration status and creation of a hostile
work environment.
Judge Ross finds the FAC fails to allege any specific "adverse
employment action" taken against Maria. The FAC fails to explain
how any of Lupe's actions constitute a change in the "terms and
conditions" of Maria's employment. Without a clear articulation of
the Plaintiffs' theory of liability, Judge Ross is unable to draw
an interference of discrimination.
In sum, because the complaint does not contain facts that give rise
to an inference of disparate treatment or a hostile workplace,
Judge Ross holds the Plaintiffs' eighth cause of action is
dismissed without prejudice.
Having dismissed all of the Plaintiffs' federal claims, Judge Ross
declines to exercise supplemental jurisdiction over their state law
claims.
In the event that the Plaintiffs elect to replead their wage
statement or wage notice claims, Judge Ross encourages them to
provide additional details concerning what, if any, wage
documentation was provided to the Plaintiffs, and how the alleged
inadequacies resulted in concrete harm.
In opposing the motion to dismiss, the Plaintiffs requested leave
to amend the complaint to address any perceived deficiencies. The
Plaintiffs have also included a proposed amended complaint that
purports to accomplish as much. The Defendants urge the Court to
dismiss with prejudice based on their assessment that the proposed
amendment is still inadequate and demonstrates that amendment would
be futile.
With the exception of the spread-of-hours claim, which fails as a
matter of law, Judge Ross agrees with the Plaintiffs that many of
their claims are potentially curable with additional factual
information. That said, Judge Ross agrees with the Defendants that
the current proposed amendment is inadequate to cure all the
deficiencies identified in this Opinion.
If the Plaintiffs elect to replead, Judge Ross says any amended
complaint should, consistent with this Opinion, include
substantially more factual details. The Plaintiffs should not
assume that leave to amend will be granted again and, as such, are
encouraged to make any forthcoming amended complaint their last and
best attempt.
For these reasons, the Court grants the Defendants' motion to
dismiss the complaint in its entirety. With the exception of the
spread-of hours claim, which is dismissed with prejudice, the
Plaintiffs are permitted to amend their complaint. Any amended
complaint will be filed, along with a motion to amend, within 21
days of the date of this order.
A full-text copy of the Court's Opinion & Order is available at
https://tinyurl.com/2au8z4z3 from PacerMonitor.com.
CASSAVA SCIENCES: Seeks Evidentiary Hearing on Class Cert Bid
-------------------------------------------------------------
In the class action lawsuit Re Cassava Sciences, Inc. Securities
Litigation, Case No. 1:21-cv-00751-DAE (W.D. Tex.), the Defendants
ask the Court to enter an order granting the motion requesting
evidentiary hearing on Plaintiffs' opposed motion for class
certification.
The parties have submitted hundreds of pages of expert reports in
connection with Plaintiffs' Opposed Motion for Class Certification,
with numerous exhibits and appendixes.
The Court would benefit from hearing from the parties' counsel and
witnesses live, with each side permitted to cross-examine the other
side's witnesses. The Court also would benefit from questioning the
parties' experts directly.
In that vein, Defendants' expert, Dr. Rene Stulz, prepared a
further report responding to the criticisms and inaccuracies
introduced in the Rebuttal Report of Plaintiffs' expert, Dr. Steven
Feinstein.
The Defendants also deposed Dr. Feinstein regarding the contents of
his rebuttal report. Consistent with the Court's order dated
September 19, 2024, which instructed that Defendants' Surreply not
introduce "any new evidence," Defendants did not cite that report
or deposition transcript in their Surreply.
The Defendants submit, however, that Dr. Stulz's response to Dr.
Feinstein's rebuttal report would aid the Court’s consideration
of Plaintiffs' Opposed Motion for Class Certification.
At an evidentiary hearing, Dr. Stulz could testify and answer the
Court's questions regarding the contents of this report. Dr.
Stulz's report is attached as Exhibit A to the accompanying
Affidavit of Scott Campbell, which also was filed with Defendants'
Surreply.
Cassava Sciences is an American pharmaceutical company based in
Austin, Texas.
A copy of the Defendants' motion dated Oct. 7, 2024, is available
from PacerMonitor.com at https://urlcurt.com/u?l=q9jIWf at no extra
charge.[CC]
The Defendants are represented by:
Gregg Costa, Esq.
Trey Cox, Esq.
Monica K. Loseman, Esq.
Scott Campbell, Esq.
John Turquet Bravard, Esq.
Mary Beth Maloney, Esq.
GIBSON, DUNN & CRUTCHER LLP
811 Main Street, Suite 3000
Houston, TX 77002
Telephone: (346) 718-6600
E-mail: gcosta@gibsondunn.com
tcox@gibsondunn.com
mloseman@gibsondunn.com
scampbell@gibsondunn.com
jturquetbravard@gibsondunn.com
mmaloney@gibsondunn.com
- and -
Eric J. Schoen, Esq.
Douglas W. Greene, Esq.
C. Shawn Cleveland, Esq.
BAKER & HOSTETLER LLP
45 Rockefeller Plaza
New York, NY 10111
Telephone: (212) 847-7090
E-mail: dgreene@bakerlaw.com
scleveland@bakerlaw.com
CHARTER COMMUNICATIONS: Hearing on Denial Bid Continued to Dec. 9
-----------------------------------------------------------------
In the class action lawsuit captioned as Harper v. Charter
Communications, LLC, et al., Case No. 2:19-cv-00902 (E.D. Cal.,
Filed May 17, 2019), the Hon. Judge William B. Shubb entered an
order notifying the parties that the Defendant's motion to deny the
Plaintiffs' motion to certify class currently set for hearing on
Nov. 12, 2024, is continued to Dec. 9, 2024, at 1:30 PM.
The nature of suit states labor litigation.
Charter is an American telecommunications and mass media company
with services branded as Spectrum.[CC]
CHURCH OF JESUS CHRIST: Judge Delays Tithing Discovery of Evidence
------------------------------------------------------------------
Tony Semerad, writing for The Salt Lake Tribune, reports that the
Church of Jesus Christ of Latter-day Saints has gotten its way --
for now.
A federal judge has agreed to delay temporarily the discovery of
evidence in a high-profile lawsuit over tithing against the
Utah-based faith and its investment firm, Ensign Peak Advisors.
On a request by church attorneys, Judge Robert Shelby put discovery
on hold last week until he can rule on whether to dismiss the
underlying lawsuit, which is likely a few months away.
Shelby said a short delay "is especially non-concerning," given
that the case, if it survives, "will take substantial time to
litigate."
The court also has no reason to believe, Shelby wrote, that a pause
on discovery will "be the cause of lost evidence, missing
witnesses, or significantly faded memories."
The Salt Lake City-based judge has scheduled arguments on whether
to dismiss the case for mid-December -- and said he is likely to
resolve that motion "shortly thereafter."
The would-be class-action suit is being pursued by nine plaintiffs
in five states, including Utah, alleging fraud by top church
leaders and Ensign Peak officials over how tithing funds were
used.
They contend the church solicited donations for charitable purposes
but instead diverted the funds to a multibillion-dollar investment
portfolio managed by Salt Lake City-based Ensign Peak.
Their action also seeks to certify a class of plaintiffs nationwide
in the case they say could include millions of like-minded former
Latter-day Saints.
Church lawyers are seeking have the entire case thrown out, arguing
it threatens to violate First Amendment protections that bar the
courts from probing into religious affairs.
They also sought to block discovery of evidence on a similar basis,
contending that the court-authorized process created a "substantial
danger that the state will become entangled in essentially
religious controversies."
The plaintiffs, meanwhile, disagreed, countering that lawyers for
the faith had failed to show how discovery might create a hardship
or inequity for the church.
But a delay in discovery, Shelby said, would result in a
"comparatively small amount of harm" to the plaintiffs' case, while
easing a significant burden for the church.
On top of involving decades of conduct by church officials and
potentially millions of proposed class members, Shelby said the
complaint "alleges a global religion committed fraud amounting to
tens of billions of dollars."
"If the case proceeds to discovery," the judge wrote, "the cost and
time defendants commit to their discovery responses will be
significant."
Delaying such a legal to-and-fro for now, the judge said, is also
convenient for the court. Church lawyers, he noted, say that First
Amendment issues in the case "will generate numerous, legitimate
discovery disputes."
"From the court's perspective," Shelby wrote, "it is 'eminently
logical' to delay exposing these disputes and committing judicial
resources to their resolution until the court has an opportunity to
review" legal issues raised in the church's motion to have the case
dismissed.[GN]
CLEVELAND, OH: NAACP Seeks Class Action Status for Overbilling Suit
-------------------------------------------------------------------
Mark Oprea, writing for CleveScene, reports that lawyers working
for an affiliate of the NAACP argued earlier this month that an
ongoing suit against Cleveland Water should be classified as a
class-action case.
That suit, Pickett v. City of Cleveland, which was originally filed
in 2019, contends that tens of thousands of mostly Black
Clevelanders had been discriminated against when the city's water
department overbilled them, shut off their water line unjustly or
placed liens on their homes for, in some cases, as little as $300
in overdue bills.
Although the city has twice tried to appeal (and have the case
dismissed), a trio of lawyers for the NAACP's Legal Defense Fund
have argued since last year that, as assistant attorney to the
plaintiffs Arielle Humphries said, "thousands of complaints"
against Cleveland Water clearly amount to a suit greater than on a
person-by-person basis.
"We have shown that this is a widespread issue," Humphries told
Scene in a phone call on Wednesday, October 9. "And that there are
a lot of Black Clevelanders that have been subject to the
discriminatory lien policy and the discriminatory unfair billing
policy."
"The policy needs to change," she added.
A brief filed in the Northern District of Ohio Court on October 4
supports the NAACP's position that the case is worthy of class
action status, which the court agreed with in a ruling late last
year. Cleveland has since appealed.
The subject at hand: From 2012 to 2020, there were 17,000 liens on
Clevelanders' homes placed due to unpaid bills, the lawyers for the
plaintiffs argue.
And unfairly so, they argue: 18 percent of those liens were on
homes in majority-white neighborhoods, they say; about 70 percent
of those liens were placed on homes in majority-Black
neighborhoods, mostly those in Central, Lee-Miles, Fairfax and
Slavic Village.
Which is, the lawyers argue, a matter of color and race, not just
financial status -- a clear violation, they say, of the Federal
Housing Act, along with the Due Process and Equal Protection
Clauses of the Fourteenth Amendment of the U.S. Constitution, which
states that no state "can take away a person's life, liberty, or
property without due process of law."
"Even when controlling for median household income, the higher
percentage of Black residents in any given neighborhood," the
October 4 brief reads, "the higher the number and proportion of all
water liens are placed in that neighborhood."
"Cleveland Water will not be commenting on this particular case, as
it is an ongoing legal matter," a spokesperson told Scene via
email.
In a message to News 5, who covered the story in 2019, Cleveland
Water said that they're "currently working through the court system
with outside counsel."
The city, they also found, had spent $1.4 million in attorneys fees
up to 2023 arguing the case. [GN]
DENT WIZARD: Griffiths Seeks to Recover Unpaid Overtime Wages
-------------------------------------------------------------
TYRONE GRIFFITHS, RICHARD REYES, and WILLIAM GONZALEZ,
individually, and on behalf of all those similarly situated,
Plaintiffs v. DENT WIZARD INTERNATIONAL, LLC, Defendant, Case No.
6:24-cv-01771 (M.D. Fla., Sept. 30, 2024) is a class action against
the Defendant seeking to recover Plaintiffs' unpaid overtime wages
pursuant to the Federal Fair Labor Standards Act.
According to the complaint, the Plaintiffs received commission
based on a percentage of invoiced work but were not paid proper
overtime compensation even if they worked more than 40 hours in the
workweek. Dent Wizard regularly disregarded and/or failed to record
the actual time spent working by Plaintiffs. The Plaintiffs
regularly worked longer than eight hours per day to get the work
completed, but Dent Wizard only allowed Plaintiffs to record an
eight hour workday, says the suit.
The Plaintiffs were employed by the Defendant as technicians
throughout North America to perform automotive restoration services
work at facilities owned or operated by its clientele.
Dent Wizard contracts with large automobile dealerships, body
shops, automobile auctions, car rental companies, and other
clientele in the automotive industry to recondition inventory
vehicles prior to bringing them to market.[BN]
The Plaintiffs are represented by:
N. Ryan LaBar, Esq.
Scott C. Adams, Esq.
LABAR & ADAMS, P.A.
2300 East Concord Street
Orlando, FL 32803
Telephone: (407) 835-8968
Facsimile: (407) 835-8969
E-mail: rlabar@labaradams.com
sadams@labaradams.com
EDEN CREAMERY: Kamal Files Petition for Writ of Mandamus
--------------------------------------------------------
YOUSSIF KAMAL, et al. filed a petition for writ of mandamus and/or
prohibition with the United States Court of Appeals for the Ninth
Circuit. The appellate case is captioned Kamal, et al. v. United
States District Court for the Southern District of California, San
Diego, et al., Case No. 23-5958, filed on October 1, 2024.
As previously reported in the Class Action Reporter, the lawsuit
entitled Youssif Kamal, et al., individually and on behalf of all
others similarly situated, Plaintiffs, v. Eden Creamery, LLC, doing
business as Halo Top Creamery, et al., Defendants, Case No.
3:18-cv-1298, filed in the U.S. District Court for the Southern
District of California, alleged that Halo Top knew it is
short-changing its customers by under-filling its pint containers
but refused to do anything about it.
On Feb. 2, 2021, the Plaintiffs filed a motion for voluntary
dismissal without prejudice, which the Court denied through an
Order entered by Judge Todd W. Robinson on Sept. 29, 2021.
On Oct. 21, 2021, the Court ordered to dismiss the Plaintiffs'
individual claims with prejudice, and class claims without
prejudice with each party to bear its own costs and attorneys'
fees.
On Aug. 16, 2024, the Court conditionally granted the Plaintiffs'
motion for voluntary dismissal without prejudice. [BN]
EL NUEVO: Fails to Pay OT Wages Under FLSA, Pena Suit Says
----------------------------------------------------------
MARINO PENA, on behalf of himself and others similarly situated v.
EL NUEVO VALLE #2 RESTAURANT CORP. d/b/a EL NUEVO VALLE #2
LECHONERA, DEL VY CASTRO A COST A, CARLOS CASTRO ACOSTA, RUBEN
ATICE, and JOHN DOES 1-5, Case No. 1:24-cv-07640 (S.D.N.Y., Oct. 8,
2024) seeks to recover unpaid overtime compensation, liquidated
damages, prejudgment and post-judgment interest, and attorneys'
fees and costs, pursuant to the Fair Labor Standards Act.
The Plaintiff worked six days per week, and his work scheduled
consisted of eight to 11 hours per day, thereby working between 48
and 66 hours per week. From the beginning of the six (6) year
limitations period in October 2018 and continuing through December
2018, the Plaintiff was not paid proper minimum wages and overtime
compensation. During this period, Plaintiff was paid, in cash, at
the rate of $9 per hour straight time for all hours worked and
worked between 48 and 66 hours per week. Work performed in excess
of forty 40 hours per week was not paid at the statutory rate of
time and one-half as required by state and federal law, the suit
alleges.
The Plaintiff further seeks, pursuant to the New York Labor Law, to
recover from the Defendants unpaid minimum wages, unpaid overtime
compensation, unpaid "spread of hours" premium for each day that
the length of Plaintiffs work shift exceeded ten (10) hours;
liquidated and statutory damages pursuant to the New York Labor Law
and the New York State Wage Theft Prevention Act, prejudgment and
post-judgment interest, and attorneys' fees and costs.
The Plaintiff worked for the Defendant as a non-exempt food
preparer/kitchen helper, stock person, porter, and food delivery
person at the Restaurant from 2012 until Sept. 16, 2024.
El Nuevo owns and operates a restaurant doing business as "El Nuevo
Valle #2 Lechonera."[BN]
The Plaintiff is represented by:
Justin Cilenti, Esq.
Peter H. Cooper, Esq.
CILENTI & COOPER, PLLC
60 East 42nd Street, 40th Floor
New York, NY 10165
Telephone: (212) 209-3933
Facsimile: (212) 209-7102
E-mail: info@jcpclaw.com
ELANCO ANIMAL: Faces Securities Class Action Lawsuit
----------------------------------------------------
If you suffered a loss on your Elanco Animal Health Incorporated
(NYSE:ELAN) investment and want to learn about a potential recovery
under the federal securities laws, follow the link below for more
information:
https://zlk.com/pslra-1/elanco-animal-health-incorporated-lawsuit-submission-form?prid=107627&wire=1
or contact Joseph E. Levi, Esq. via email at
jlevi@levikorsinsky.com or call (212) 363-7500 to speak to our team
of experienced shareholder advocates.
THE LAWSUIT: A class action securities lawsuit was filed against
Elanco Animal Health Incorporated that seeks to recover losses of
shareholders who were adversely affected by alleged securities
fraud between November 7, 2023 and June 26, 2024.
CASE DETAILS: The filed complaint alleges that defendants made
false statements and/or concealed that: (i) Zenrelia, a once-daily
oral inhibitor for canine dermatology, was less safe than the
Company had led investors to believe; (ii) Elanco was unlikely to
meet its own previously issued timeline for the U.S. approval and
commercial launch of both Zenrelia and Credelio Quattro, a broad
spectrum parasiticide product for dogs; (iii) accordingly, the
Company's business and/or financial prospects were overstated; and
(iv) as a result, the Company's public statements were materially
false and misleading at all relevant times.
WHAT'S NEXT? If you suffered a loss in Elanco stock during the
relevant time frame - even if you still hold your shares - go to
https://zlk.com/pslra-1/elanco-animal-health-incorporated-lawsuit-submission-form?prid=107627&wire=1
to learn about your rights to seek a recovery. There is no cost or
obligation to participate.
WHY LEVI & KORSINSKY: Over the past 20 years, Levi & Korsinsky LLP
has established itself as a nationally-recognized securities
litigation firm that has secured hundreds of millions of dollars
for aggrieved shareholders and built a track record of winning
high-stakes cases. The firm has extensive expertise representing
investors in complex securities litigation and a team of over 70
employees to serve our clients. For seven years in a row, Levi &
Korsinsky has ranked in ISS Securities Class Action Services' Top
50 Report as one of the top securities litigation firms in the
United States. Attorney Advertising. Prior results do not guarantee
similar outcomes.
CONTACT:
Levi & Korsinsky, LLP
Joseph E. Levi, Esq.
Ed Korsinsky, Esq.
33 Whitehall Street, 17th Floor
New York, NY 10004
jlevi@levikorsinsky.com
Tel: (212) 363-7500
Fax: (212) 363-7171
https://zlk.com/ [GN]
ENERGIZER HOLDINGS: Judge Mendoza Authorizes Class Suit to Proceed
------------------------------------------------------------------
Judge Salvador Mendoza Jr., who was nominated by President Biden to
the Ninth Circuit court of appeals, wrote a unanimous opinion that
reversed a lower court and allowed a class action to go forward
against a sunscreen maker for allegedly including dangerous levels
of benzene in its product. The October 2024 decision was in Bowen v
Energizer Holdings Inc.
What happened in this case?
Beth Bowen is a California resident who purchased several bottles
of Banana Boat sunscreen from a pharmacy. She used up several
bottles and, after hearing about sunscreen problems, saved part of
the last bottle she used and had it tested at a laboratory. The
tests revealed that the sunscreen contained benzene, which the FDA
has stated can cause cancer, although the bottle did not disclose
that ingredient.
Bowen filed a class action lawsuit against Energizer and several
other corporations involved in manufacturing and distributing the
sunscreen. The complaint contends that the corporations failed to
disclose the dangerous benzene in the product and that they falsely
represented that it was "safe" when used as directed. The
corporations moved to dismiss the case, claiming that Bowen did not
have standing to bring the case in federal court. The lower court
agreed.
In particular, the district court ruled that Bowen's allegations
and outside source did not "establish" that sunscreen with the
amount of benzene claimed by Bowen "creates a credible or
substantial risk" of physical or economic harm. Bowen maintained
that the court had improperly resolved disputed factual issues in
the corporations' favor and appealed to the Ninth Circuit.
How did Judge Mendoza and the Ninth Circuit decide the case and why
is it important?
Judge Mendoza's unanimous opinion agreed with Bowen's criticism,
reversed the lower court judgment, and sent the case back so that
the class action can proceed. In a case like this one, Mendoza
explained, there is a clear overlap between the facts that may
establish standing and those that determine which party is right on
the merits. In such a situation, he went on, a district court
should not determine those facts on its own, but instead apply a
standard like a "motion for summary judgment." That means that a
court should not itself seek to resolve "genuinely disputed facts"
but instead should "leave the resolution of material factual
disputes" to the jury or other trier of fact.
Mendoza wrote that the court below, however, had erroneously sought
itself to resolve disputed factual issues that should have been
left for a jury to determine. Such "genuine disputes of material
fact" on the harm caused by benzene, he went on, "render dismissal
on standing grounds improper." The opinion made clear that Bowen's
allegations were sufficient to support standing and ruled that the
case should proceed in the district court.
The opinion by Judge Mendoza is obviously important to Beth Bowen
and the other members of the class who seek justice concerning the
harms they contend are caused by the benzene-laden sunscreen. The
case also provides useful guidance on resolving standing issues
when they overlap with the merits, particularly in the Ninth
Circuit, which includes California, Alaska, Arizona, Hawaii, Idaho,
Montana, Nevada, Oregon and Washington. In addition, the ruling
serves as a reminder of the importance of promptly confirming
fair-minded judges to our federal courts. [GN]
EQONEX LIMITED: S.D. New York Dismisses Li Securities Class Suit
----------------------------------------------------------------
Judge Gregory H. Woods of the U.S. District Court for the Southern
District of New York issued a Memorandum Opinion & Order granting
the Defendants' motion to dismiss the lawsuit captioned BIN LI,
individually and on behalf of others similarly situated, Plaintiff
v. EQONEX LIMITED, BINANCE GROUP, BIFINITY UAB, JONATHAN FARNELL,
DANIEL LING, ALMIRA CEMMELL, YU HELEN HAI, ZHAO CHANGPENG,
Defendants, Case No. 1:23-cv-03346-GHW (S.D.N.Y.).
Eqonex is a Singapore-domiciled digital assets financial company.
Eqonex offered digital asset custodian services, asset management
services, and brokerage services. Eqonex's custody business was
composed of Digivault, a secure digital asset custodian. Eqonex
also operated an exchange for trading virtual currencies and their
derivatives (the "Exchange"). Income from the Exchange made up 79.9
percent of Eqonex's revenues in the fiscal year ending in March
2022. Eqonex was publicly listed on the NASDAQ in October 2020.
Binance is a large blockchain ecosystem and cryptocurrency
infrastructure provider. Binance operates the largest bitcoin
exchange in the world by volume. Bifinity is a payments technology
company incorporated in the Republic of Lithuania. Bifinity is a
part of Binance as its official fiat-to-crypto payments provider.
Binance launched Bifinity on March 7, 2022, the same day that
Eqonex announced the strategic partnership with Bifinity.
Individual Defendant Zhao Changpeng is the sole shareholder of
Bifinity and is the co-founder and Chief Executive Officer ("CEO")
of Binance. Jonathan Parnell is the head of Binance for the U.K.
and is the CEO of Bifinity. Parnell became Eqonex's CEO and a
member of Eqonex's board of directors on March 17, 2022. Yu Helen
Hai is the president of Bifinity, as well as the head of the NFT
and fan token platforms of Binance and the Binance Charity
Foundation. Daniel Ling serves as Bifinity's Director of Strategy.
Almira Cemmell became Eqonex's Chief Corporate Affairs Officer
("CCAO") on March 31, 2022.
In March 2022, Eqonex entered into a strategic partnership with
Bifinity UAB. The terms of the strategic partnership gave Bifinity
significant influence over Eqonex's operations. When announcing the
strategic partnership, Eqonex also announced that the two companies
would continue discussing a potential merger.
Five months after the strategic partnership began, Eqonex decided
to close its virtual currencies exchange--its primary source of
revenue--and Bifinity took full ownership of Eqonex's digital asset
custodian business. Three months later, Eqonex found itself unable
to repay its loan to Bifinity and told investors it had doubts
about the company's ability to continue as a going concern.
Eqonex's stock price collapsed shortly thereafter.
The Plaintiffs brought this securities class action on behalf of
themselves and other similarly situated investors, who acquired
Eqonex common stock. They claim that Bifinity entered into the
strategic partnership merely to take advantage of Eqonex's
financial hardship and acquire Eqonex's U.K.-approved digital asset
custodian.
As a result, the Plaintiffs claim that the Defendants, in
connection with this scheme, made false and misleading statements
about their intentions to strengthen Eqonex and facilitate a
merger, in violation of Section 10(b) and Section 20(a) of the
Securities Exchange Act of 1934 (the "Exchange Act") and Rule
10b-5.
The Defendants respond that the Plaintiffs have failed to allege
with particularity facts supporting the existence of such a scheme
or supporting the Defendants' scienter. The Defendants move to
dismiss all claims pursuant to Fed. R. Civ. P. 12(b)(6) and 12(b)
(2).
Because the Plaintiffs have not adequately pleaded that any
Defendant planned for Eqonex to fail at the time that the strategic
partnership with Bifinity was announced, Judge Woods finds that the
Plaintiffs have not adequately pleaded that any of the allegedly
misleading statements were made with scienter. For that reason, and
for the other reasons described in this Memorandum Opinion & Order,
the Court grants the Defendants' motion to dismiss.
For these reasons, the Court grants the Defendants' motion to
dismiss.
Judge Woods opines that the Plaintiffs have failed to plead a
primary Violation of Section 10(b) of the Exchange Act by
Defendants Parnell and Hai or by Eqonex. The Plaintiffs have
separately failed to plead Section 20(a) control—person claims
against all Defendants.
Because the Court cannot conclude that further amendment of the
complaint would be futile, the Court grants the Plaintiffs leave to
file a second amended complaint solely to cure the deficiencies
identified in this opinion no later than 30 days from the date of
this order.
The Clerk of Court is directed to terminate the motion pending at
ECF No. 46.
A full-text copy of the Court's Memorandum Opinion & Order is
available at https://tinyurl.com/c2ebtw3p from PacerMonitor.com.
EQUAL EXCHANGE: Filing for Class Cert Bid Extended to Jan. 31, 2025
-------------------------------------------------------------------
In the class action lawsuit captioned as Rodriguez v. Equal
Exchange, Inc., Case No. 3:23-cv-00055 (S.D. Cal., Filed Jan. 11,
2023), the Hon. Judge Andrew G. Schopler entered an order granting
joint motion for an extension of deadline to file a
class-certification motion to Jan. 31, 2025.
The nature of suit states torts -- personal property -- other
fraud.
Equal Exchange distributes organic, gourmet coffee, tea, sugar,
bananas, avocados, cocoa, and chocolate bars produced by farmer
cooperatives in Latin America, Africa, and Asia.[CC]
EVOLVE BANK & TRUST: Bynoe Suit Removed to M.D. Tennessee
---------------------------------------------------------
The case styled as Chana Bynoe, Edward Nantz, and Adam White, on
behalf of themselves and all others similarly situated v. EVOLVE
BANK & TRUST, Case No. 24C2058 was removed from the Circuit Court
for the Twentieth Judicial District, Davidson County, Tennessee, to
the United States District Court for the Middle District of
Tennessee on Oct. 9, 2024, and assigned Case No. 3:24-cv-01208.
The Class Action Complaint alleges claims against Evolve for
invasion of privacy, breach of implied contract, unjust enrichment,
negligence, negligence per se, breach of third-party beneficiary
contract, and breach of fiduciary duty, in connection with a data
breach.[BN]
The Defendants are represented by:
Diana M. Fassbender, Esq.
ORRICK, HERRINGTON & SUTCLIFFE LLP
2100 Pennsylvania Ave., N.W.
Washington, D.C. 20037
Phone: 202-339-8533
Email: dszego@orrick.com
- and -
Daniel W. Van Horn, Esq.
Andrew B. Schrack, Esq.
BUTLER SNOW LLP
6075 Poplar Ave., Ste. 500
Memphis, TN 38119
Phone: (901) 680-7200
Fax: (901) 680-7201
Email: danny.vanhorn@butlersnow.com
andrew.schrack@butlersnow.com
EVOLVE BANK & TRUST: Gaskins Suit Transferred to W.D. Tennessee
---------------------------------------------------------------
The case captioned as William Gaskins, on behalf of himself and all
others similarly situated v. Evolve Bank & Trust, Case No.
3:24-cv-00654 was transferred from the U.S. District Court for the
Western District of North Carolina, to the U.S. District Court for
the Western District of Tennessee on Oct. 8, 2024.
The District Court Clerk assigned Case No. 2:24-cv-02747-SHL-cgc to
the proceeding.
The nature of suit is stated as Other P.I. for Breach of Fiduciary
Duty.
Evolve Bank & Trust -- https://www.getevolved.com/ -- is a
best-in-class technology-focused financial services organization
and Banking-as-a-Service ("BaaS") provider.[BN]
The Plaintiff is represented by:
Edward H. Maginnis, Esq.
MAGINNIS LAW, PLLC
4801 Glenwood Ave Suite 310
Raleigh, NC 27612
Phone: (919) 526-0450
Fax: (919) 882-8763
Email: emaginnis@maginnislaw.com
- and -
Karl S. Gwaltney, Esq.
MAGINNIS HOWARD LAW
7706 Six Forks Road, Suite 101
Raleigh, NC 27615
Phone: (919) 960-1545
Email: kgwaltney@maginnishoward.com
The Defendant is represented by:
Amisha R. Patel, Esq.
ORRICK, HERRINGTON & SUTCLIFFE LLP
2100 Pennsylvania Ave, NW
Washington, DC 20037
Phone: (202) 339-8457
Email: apatel@orrick.com
- and -
Aravind Swaminathan, Esq.
ORRICK, HERRINGTON & SUTCLIFFE LLP
401 Union Street, Suite 3300
Seattle, WA 98101
Phone: (206) 839-4300
Email: aswaminathan@orrick.com
- and -
Daniel W. Van Horn, Esq.
BUTLER SNOW LLP
Crescent Center
6075 Poplar Avenue, 5th Floor
Memphis, TN 38119
Phone: (901) 680-7331
Fax: (901) 680-7201
Email: danny.vanhorn@butlersnow.com
EVOLVE BANK & TRUST: Starling Suit Transferred to W.D. Tennessee
----------------------------------------------------------------
The case captioned as Tracy E. Starling, on behalf of herself and
all others similarly situated v. Evolve Bank & Trust, Case No.
4:24-cv-00549 was transferred from the U.S. District Court for the
Eastern District of Arkansas, to the U.S. District Court for the
Western District of Tennessee on Oct. 8, 2024.
The District Court Clerk assigned Case No. 2:24-cv-02748-SHL-cgc to
the proceeding.
The nature of suit is stated as Other Contract for Declaratory
Judgement.
Evolve Bank & Trust -- https://www.getevolved.com/ -- is a
best-in-class technology-focused financial services organization
and Banking-as-a-Service ("BaaS") provider.[BN]
The Plaintiff is represented by:
Liberato P. Verderame, Esq.
Marc H. Edelson, Esq.
EDELSON LECHTZIN LLP
411 South State Street, Suite N-300
Newtown, PA 18940
Phone: (215) 867-2399
Fax: (267) 685-0676
Email: lverderame@edelson-law.com
medelson@edelson-law.com
- and -
Randall Keith Pulliam, Esq.
Joseph Henry (Hank) Bates, III, Esq.
CARNEY BATES & PULLIAM, PLLC
One Allied Drive, Suite 1400
Little Rock, AR 72202
Phone: (501) 312-8500
Fax: (501) 312-8505
Email: rpulliam@cbplaw.com
hbates@cbplaw.com
The Defendant is represented by:
Amisha R. Patel, Esq.
ORRICK, HERRINGTON & SUTCLIFFE LLP
2100 Pennsylvania Ave, NW
Washington, DC 20037
Phone: (202) 339-8457
Email: apatel@orrick.com
- and -
Aravind Swaminathan, Esq.
ORRICK, HERRINGTON & SUTCLIFFE LLP
401 Union Street, Suite 3300
Seattle, WA 98101
Phone: (206) 839-4300
Email: aswaminathan@orrick.com
- and -
Andrew B. Schrack, Esq.
BUTLER SNOW LLP
6075 Poplar Ave., Suite 500
Memphis, TN 38119
Phone: (901) 680-7353
Email: andrew.schrack@butlersnow.com
- and -
Daniel W. Van Horn, Esq.
BUTLER SNOW LLP
Crescent Center
6075 Poplar Avenue, 5th Floor
Memphis, TN 38119
Phone: (901) 680-7331
Fax: (901) 680-7201
Email: danny.vanhorn@butlersnow.com
FRATELLI ROSSETTI: Website Not Blind-Accessible, Abramson Says
--------------------------------------------------------------
PAUL ABRAMSON, on behalf of himself and all others similarly
situated, Plaintiff v. Fratelli Rossetti New York, Ltd.,
Defendant, Case No. 1:24-cv-06892 (E.D.N.Y., Sept. 30, 2024) is a
civil rights action against the Defendant for its failure to
design, construct, maintain, and operate its website
https://www.fratellirossetti.com to be fully accessible to and
independently usable by Plaintiff and other blind or
visually-impaired persons in violation of the Americans with
Disabilities Act, the New York State Human Rights Law, and the New
York City Human Rights Law.
On August 20, 2024, the Plaintiff was looking for a new pair of
shoes that would serve as a versatile option, suitable for both
casual and formal outfits. After he encountered the Defendant's
website, he browsed the website and tried to analyze the company
products but encountered many accessibility issues including
inability to access the sub menu elements, announcement of constant
update of moving content, and ambiguous link texts that hindered
his ability to assess the items properly. These access barriers
have caused Fratellirossetti.com to be inaccessible to, and not
independently usable by, blind and visually-impaired people, says
the Plaintiff.
The Plaintiff seeks a permanent injunction to cause a change in
Fratelli Rossetti New York's policies, practices, and procedures so
that Defendant's website will become and remain accessible to blind
and visually-impaired consumers. This complaint also seeks
compensatory damages to compensate Class members for having been
subjected to unlawful discrimination.
Fratelli Rossetti New York, Ltd. operates the website that sells
footwear including loafers, sneakers, slip-ons, sandals, bags,
belts, outerwear and shoe care accessories.[BN]
The Plaintiff is represented by:
Gabriel A. Levy, Esq.
GABRIEL A. LEVY, P.C.
1129 Northern Blvd., Suite 404
Manhasset, NY 11030
Telephone: (347) 941-4715
E-mail: glevyfirm@gmail.com
FROST BANK: Bid for Arbitration in Criswell Suit Granted in Part
----------------------------------------------------------------
Judge Xavier Rodriguez of the U.S. District Court for the Western
District of Texas, San Antonio Division, grants in part and denies
in part the Defendant's motion to compel individual arbitration in
the lawsuit captioned LANITA CRISWELL, ON BEHALF OF THEMSELVES AND
ALL OTHERS SIMILARLY SITUATED; AND LASHEENA NEAL, ON BEHALF OF
THEMSELVES AND ALL OTHERS SIMILARLY SITUATED, Plaintiffs v. FROST
BANK, Defendant, Case No. 5:24-cv-00327-XR (W.D. Tex.).
The Court considered United States Magistrate Judge Elizabeth S.
Chestney's Report and Recommendation ("Recommendation") in the
case, filed Aug. 16, 2024, regarding the Defendant's motion to
compel individual arbitration, strike the Plaintiffs' class
allegations, and dismiss this action in its entirety. After careful
consideration, the Court adopts the Magistrate Judge's
Recommendation to compel arbitration and otherwise deny the
Defendant's motion in all respects.
Plaintiffs Lanita Criswell and Lasheena Neal originally filed this
case as a putative class action, asserting claims against Defendant
Frost Bank for breach of contract and violation of Regulation E of
the Electronic Funds Transfer Act stemming from the Defendant's
overdraft policy and practice. Overdraft fees are sometimes imposed
by banks when a transaction results in a negative balance.
The Plaintiffs, who each were hit with a $35 overdraft fee,
challenged Frost Bank's alleged practice of charging overdraft fees
on later-settled transactions, which, at the time of authorization,
did not result in a negative balance. Also known as "authorize
positive, settle negative" transactions, the Plaintiffs assert that
this practice leads to consumers being assessed multiple overdraft
fees when they may reasonably have expected only one. The
Plaintiffs contend that the Defendant misrepresented its "true
debit card processing and overdraft practices" and seek damages.
The Defendant moved to compel individual arbitration, relying on
the Deposit Agreement between the Plaintiffs and the Defendant that
expressly provides for individual arbitration. The Defendant also
moved to strike the class allegations and dismiss the complaint on
res judicata and principals of comity, arguing that a prior
"mirror-image overdraft class action" in Texas state court that was
nonsuited with prejudice bars this action, citing Woods v. Frost
Bank, No. 2021-CI-26208 (Bexar County, Tex.) (the "Woods Action").
The Defendant also asserted that Plaintiffs' breach-of-contract
claims were barred by the statute of limitations. In response, the
Plaintiffs dropped their class claims and agreed to submit their
individual claims (and the Defendant's statute-of-limitations
defense) to an arbitrator. The Plaintiffs, however, rejected the
Defendant's res judicata and comity theories and argued that
certain provisions in the Deposit Agreement governing
pre-arbitration dispute resolution procedures--"in-person"
negotiations and mediations at equal cost to the parties--were
unconscionable.
After this development, the Magistrate Judge recommended the
Defendant's motion to compel individual arbitration be granted and
the Defendant's motion to dismiss on statute of limitations be
denied without prejudice. The Magistrate Judge rejected the
Plaintiffs' argument that, before submitting the case to
arbitration, the Court should strike the arbitration agreement's
pre-arbitration negotiation and mediation requirements as
unconscionable.
Judge Rodriguez notes that the Plaintiffs' unconscionability
challenge was moot because they can (and did) opt to bypass
pre-arbitration dispute resolution and proceed straight to
arbitration.
The Magistrate Judge rejected the Defendant's argument that the
Plaintiffs' class claims were barred by res judicata, reasoning
that (1) the pre-certification non-suit in the Woods Action could
not bind unnamed class members and (2) the Plaintiffs' class claims
were mooted by their decision to submit to individual arbitration.
The Magistrate Judge was unmoved by the Defendant's plea for a
ruling barring future class actions to prevent counsel from abusing
the judicial process by filing future class actions governed by a
binding agreement to arbitrate. Similarly, the Magistrate Judge
rejected the Defendant's argument that the class claims should be
stricken on principles of comity. The Magistrate Judge pointed out
that the Defendant was "not asking the Court to apply legal
principles or conclusions from the Woods decision to find that the
class claims lack merit and should be stricken."
Instead, the Defendant sought to foreclose any similar claim by an
account holder of the Defendant. Not only does comity not extend
this far but applying it in this way would allow comity to
eviscerate the strict requirements of res judicata.
Finally, the Magistrate Judge recommended that the Court stay the
case pending arbitration (rather than dismiss it), relying on the
Supreme Court's recent holding in Smith v. Spizziri that courts
must grant a party's request for a stay pending arbitration, even
if all claims are subject to arbitration (citing 601 U.S. 472,
475–76 (2024). Even though the Plaintiffs have not explicitly
requested a stay, they generally oppose all relief requested in the
Defendants' motion other than submitting their claims to
arbitration, including dismissal of this lawsuit.
The Court has reviewed the Recommendation and finds it to be
neither clearly erroneous nor contrary to law. Accordingly, the
Court adopts the Magistrate Judge's Recommendation in all
respects.
Accordingly, the Court grants in part and denies in part the
Defendant's Motion. The motion is granted with respect to its
request to compel individual arbitration and denied in all other
respects.
The parties are directed to file an advisory as to the status of
the arbitration by no later than March 17, 2025, with additional
advisories to follow every 180 days thereafter. The parties must
inform the Court of the outcome of the arbitration within 30 days
of the conclusion of the proceedings.
The Court further orders that all deadlines and proceedings in this
matter are stayed pending resolution of the arbitration
proceedings. This case is administratively closed pending
arbitration.
A full-text copy of the Court's Order dated Sept. 18, 2024, is
available at https://tinyurl.com/3uwe9v6t from PacerMonitor.com.
GORUCK HOLDINGS: Website Inaccessible to Blind Users, Suarez Says
-----------------------------------------------------------------
ALVIN SUAREZ, on behalf of himself and all others similarly
situated, Plaintiff v. Goruck Holdings, LLC, Defendant, Case No.
1:24-cv-07374 (S.D.N.Y., Sept. 30, 2024) is a civil rights action
against Goruck Holdings for its failure to design, construct,
maintain, and operate its website https://www.goruck.com to be
fully accessible to and independently usable by Plaintiff and other
blind or visually-impaired persons in violation of the Americans
with Disabilities Act, the New York State Human Rights Law, and the
New York City Human Rights Law.
On August 26, 2024, the Plaintiff was searching online for a
versatile and durable backpack suitable for daily use. He wanted to
find a comfortable backpack to be spacious enough for carrying
items for work, travel, and gym. During this search, Plaintiff came
across the Defendant's website which offered a variety of
rucksacks. While attempting to purchase the GR1 USA - Cordura
rucksack, the Plaintiff encountered difficulties navigating the
website due to accessibility issues, such as unannounced content
changes and alerts, which prevented him from effectively browsing
and purchasing the desired product. These access barriers have
caused Goruck.com to be inaccessible to, and not independently
usable by blind and visually-impaired persons, says the Plaintiff.
The Plaintiff seeks a permanent injunction to cause a change in
Goruck Holdings' policies, practices, and procedures so that the
website will become and remain accessible to blind and
visually-impaired consumers. This complaint also seeks compensatory
damages to compensate Class members for having been subjected to
unlawful discrimination.
Goruck Holdings operates the website which provides consumers with
access to an array of goods and services, including, the ability to
view rucking gear, rucksacks, belt bags, hats, tops, bottoms,
trainers, kit bags.[BN]
The Plaintiff is represented by:
Gabriel A. Levy, Esq.
GABRIEL A. LEVY, P.C.
1129 Northern Blvd., Suite 404
Manhasset, NY 11030
Telephone: (347) 941-4715
E-mail: glevyfirm@gmail.com
HAPPYNEST INC: Leonard Files Suit in Fla. Cir. Ct.
--------------------------------------------------
A class action lawsuit has been filed against HappyNest Inc. The
case is styled as James Leonard, individually and on behalf of all
those similarly situated v. HappyNest Inc., Case No. CACE24014492
(Fla. Cir. Ct., Broward Cty., Oct. 9, 2024).
HappyNest -- https://www.happynest.com/ -- is a convenient,
affordable and eco-friendly laundry service..[BN]
The Plaintiff is represented by:
Faaris K. Uddin, Esq.
THE LAW OFFICES OF JIBRAEL S. HINDI
110 SE 6th Street, Suite 1744
Fort Lauderdale, FL 33301
Phone: 954-907-1136
Email: faaris@jibraellaw.com
HOMEWORKS ENERGY: Giguere Renewed Bid for Class Cert Granted
-------------------------------------------------------------
In the class action lawsuit captioned as Giguere v. Homeworks
Energy, Inc., et al., Case No. 3:21-cv-30015 (D. Mass., Filed Feb.
5, 2021), the Hon. Judge Mark G. Mastroianni entered an order
granting the Plaintiff's renewed motion for class certification:
"All Massachusetts employees of HomeWorks Energy, Inc. whose
compensation was subject to the Installer Compensation Plan and
who
received a "disincentive" that reduced their "incentive"
compensation in any given week during the class period of
February
5, 2018 through the date of Judgement in this matter."
The court appoints Jospeh Giguere as the Class Representative. The
court appoints Hayber, McKenna & Dinsmore, LLC as Class Counsel.
Defendants shall produce pay sheets for Massachusetts employees
subject to the Installer Compensation Plan to Class Counsel within
30 days. Class Counsel shall then consult with Dr. Fox and provide
a list of the Class Members to Defendants, along with Dr. Fox's
analysis.
The Defendants shall provide Class Counsel with the last known
address, emails, and telephone numbers of the Class Members within
45 days of receiving the list.
The court approves the proposed Notice of Pending Class Action
submitted by the parties. Class Counsel is authorized to retain a
third-party administrator for the purpose of sending the Notice to
the Class. Notice shall be sent to the Class within 21 days after
the Class list is finalized.
Class Members shall have 30 days from the mailing of the Notice to
exclude themselves from the Class in accordance with the terms
contained in the Notice. The parties shall confer and file a joint
status report by October 14, 2024, setting forth proposed
scheduling deadlines, including dispositive motions. (Rivera,
Christina)
-- The parties filed a Joint Stipulation with Respect to Class
Certification, but the court still has an obligation to ensure
the
requirements of Rule 23 are satisfied.
-- The court finds these Rule 23 requirements are satisfied here.
In
particular, the proposed class is so numerous (in the hundreds)
that joinder is impractical; there are questions of law and
fact
common to the class and typicality of claims and defenses in
light
of the Massachusetts Wage Act claims and common wage practices;
and the representative parties will fairly and adequately
represent the interests of the class, as there are no
substantial
conflicts between the named plaintiff and the class, and
Plaintiff's counsel is well qualified and experienced in class
litigation.
-- The proposed class is also ascertainable because class members
can
be identified through objective criteria from Defendants'
records
and Plaintiff's expert's algorithm. In addition, under Rule
23(b)(3), the common questions of law and fact predominate over
any issues affecting only individual members, and a class
action
is superior to other available methods for fairly and
efficiently
adjudicating the controversy.
The suit alleges violation of the Fair Labor Standards Act (FLSA).
HomeWorks performs home energy assessments and corrects energy loss
problems through insulation and high efficiency heating and
cooling.[CC]
HOP ENERGY: Court Grants Bid for Stay in Melville Class Suit
------------------------------------------------------------
Magistrate Judge Victoria Reznik of the U.S. District Court for the
Southern District of New York grants the Defendant's request for a
stay in the lawsuit styled RYAN MELVILLE, On behalf of himself and
all others similarly situated, Plaintiff v. HOP ENERGY, LLC,
Defendant, Case No. 21-cv-10406-KMK-VR (S.D.N.Y.). MICHELLE
MULLANEY and ROBERT MULLANEY, On behalf of themselves and all
others similarly situated, Plaintiff v. HOP ENERGY, LLC, Defendant,
Case No. 7:23-cv-07318-KMK-VR (S.D.N.Y.).
Before the Court is the Defendant's motion to stay this matter
pending a class action settlement in a separate case in another
jurisdiction (the Callery settlement). The parties filed virtually
identical motion papers in Melville and Mullaney. Unless otherwise
noted, Judge Reznik says all ECF Nos. refer to those assigned to
filings in Melville v. HOP Energy, LLC, 21-cv-10406-KMK-VR
(S.D.N.Y.). Similarly, all page numbers refer to the ECF pagination
printed in blue at the top of each ECF filed page.
Also before the Court is the Plaintiffs' motion for an Order to
Show Cause asking for sanctions against the Defendant for allegedly
violating the Court's Interim Class Counsel Order. For reasons set
forth in this Opinion & Order, the Court grants the Defendant's
request for a stay. Additionally, the Plaintiffs' request for
sanctions (and related relief) is denied without prejudice.
In June 2020, Brian Callery, a former HOP Energy customer, filed a
lawsuit in Pennsylvania state court alleging that HOP Energy did
not intend to honor their promise to charge the Plaintiff the
actual prevailing retail price for heating oil, but rather engaged
in a scheme where HOP created a false, inflated "prevailing retail
price," which they quoted to Capped Plan customers" (Callery, et
al. v. HOP Energy, LLC, 20-cv-3652-CMR (E.D. Pa.) (Callery)). HOP
removed Callery to the United States District Court for the Eastern
District of Pennsylvania, where it is pending.
Then, in December 2021, Melville was filed by Ryan Melville, a
former HOP customer, alleging that HOP breached its contract by not
delivering heating oil at its promotional prevailing retail price
for first-year customers. Later, in August 2023, counsel for
Melville filed the Mullaney case in this Court, alleging that HOP
breached its contract with the Plaintiff by overcharging customers,
who purchased variable-rate heating oil, from HOP.
At various points during discovery, the Plaintiffs disputed whether
Callery overlapped with Melville and Mullaney, citing Judge Karas'
opinion denying HOP's previous motion to stay. According to the
Plaintiffs, Melville and Mullaney do not overlap with Callery
because Callery involved customer contracts with capped pricing,
not variable pricing.
Conversely, the Defendant has a more expansive view of Callery,
arguing that the cases do overlap because each plaintiff was a
capped price program customer, and each plaintiff's agreement
provided that the customer would pay HOP's prevailing retail price
upon the expiration of the contract term or when HOP delivered the
designated number of gallons to the customer.
In December 2023, all parties participated in a global mediation,
which was ultimately unsuccessful. Soon thereafter, counsel for the
Plaintiffs sought an order to be appointed interim class counsel
for Melville and Mullaney, arguing that the Defendant would engage
in a reverse auction by settling Callery in a way that would
subsume the Melville and Mullaney classes and claims.
In May 2024, this Court granted the request of the Plaintiffs'
counsel to be appointed Interim Class Counsel. But in doing so, the
Court did not specifically define the scope of the Plaintiffs'
authority in those settlement negotiations nor specifically enjoin
the Defendant from entering settlement negotiations or discussions
in Callery. Despite this, the Court assumed that any further
settlement negotiations would involve interim class counsel for the
Melville and Mullaney plaintiffs if the settlement attempted to
resolve claims on their behalf.
After this Court entered the Interim Class Counsel (ICC) order, the
Defendant continued to engage in settlement discussions with
counsel for Callery but without the involvement of counsel for the
Melville and Mullaney plaintiffs. The parties dispute the
circumstances behind why the Melville and Mullaney plaintiffs were
not included in those later discussions. The Plaintiffs argue that
the negotiations were "secret" and "collusive." But the Defendant
asserts that the Plaintiffs made clear they were not interested in
continuing settlement discussions. Indeed, according to the
Defendant, they had rejected the Plaintiffs' settlement demand in
April 2024 and believed the Plaintiffs were thereafter "unwilling
to pursue settlement talks."
Those settlement discussions resulted in an agreement in principle
between the Callery plaintiffs and the Defendant. On July 16, 2024,
the Callery plaintiffs filed a motion for preliminary approval of
the settlement with the federal court in Pennsylvania. If approved,
the settlement would potentially encompass the proposed claims of
the Melville and Mullaney plaintiffs and their proposed putative
class.
As a result, the Defendant seeks to stay this action pending the
case-dispositive settlement in Callery. The Plaintiffs oppose,
primarily arguing that the Defendant violated the Court's ICC Order
by settling their claims in Callery without the Plaintiffs'
involvement and that the Defendant should not be rewarded for such
conduct with a stay of this case.
In deciding whether to issue a stay, Judge Reznik notes that courts
in this Circuit will consider the following factors, often referred
to as the Kappel factors: 1) the private interests of the
plaintiffs in proceeding expeditiously with the civil litigation as
balanced against the prejudice to the plaintiffs if delayed; 2) the
private interest of and burden on the defendants; 3) the interests
of the courts; 4) the interests of persons not parties to the civil
litigation; and 5) the public interest, citing Rankine v. Levi
Strauss & Co., 674 F. Supp. 3d 57, 68 (S.D.N.Y. 2023) (quoting
Kappel v. Comfort, 914 F. Supp. 1056, 1058 (S.D.N.Y. 1996)).
Because the Plaintiffs have not persuasively argued that prejudice
would follow from a stay, Judge Reznik finds the first factor only
slightly weighs in their favor. In light of the pending discovery
that still needs to be exchanged, as well as the "concrete"
prejudice that the Defendant would suffer should this case
continue, it is clear to the Court that the second factor counsels
granting a stay.
The third factor -- the interest of the courts -- similarly weighs
in favor of granting a stay, Judge Reznik holds. Both the fourth
and fifth factors -- the interests of non-parties and of the public
-- are served by granting a stay, as well, because Judge Reznik
explains it would promote the efficient use of judicial resources
and minimize the possibility of conflicts between different
courts.
As such, Judge Reznik finds four of the five Kappel factors favor
granting a stay of this action pending a resolution in Callery.
In a separate filing, the Plaintiffs requested an Order to Show
Cause as to why the Defendant should not be held in civil contempt
for allegedly violating the Court's Interim Class Counsel Order and
engaging in a collusive reverse auction settlement. As part of that
request, the Plaintiffs ask the Court to force HOP to carve-out the
Melville and Mullaney plaintiffs in their Callery settlement and to
enjoin HOP, under the All Writs Act (28 U.S.C. Section 1651(a)),
from settling the claims of the proposed Melville and Mullaney
classes in Callery.
Although the Plaintiffs have raised potentially valid concerns
about how the Callery settlement was negotiated without their
involvement, the parties' dueling affidavits demonstrate that there
are likely two or more sides to this story, Judge Reznik notes.
Perhaps the Defendant tried to evade this Court's Interim Class
Counsel order and negotiate a reverse auction settlement that
settles claims on the cheap, as the Plaintiffs argue. Or perhaps
the Plaintiffs were jockeying for control of global settlement
discussions, refused to negotiate in good faith, and made any
recovery for the proposed class less likely with scorched-earth
litigation tactics (as the Defendant argues).
The truth may be somewhere in the middle, Judge Reznik says. In any
case, the Court declines to delve into the merits of these
allegations, which, in essence, go to the adequacy of the proposed
settlement in Callery, including the fairness of its proposed terms
and the scope of the purported class. The Court is not tasked with
evaluating the settlement in Callery; the judge in Callery is,
Judge Reznik opines.
Although the Plaintiffs argue that the Court should intervene by
enjoining HOP from entering into the Callery settlement under the
All Writs Act, the Court is not convinced it has the authority to
do such a thing. The Act is generally used to prohibit activities
in another court (typically a state court) that threaten to
undermine a pending settlement in the enjoining court.
Judge Reznik opines that the the Melville and Mullaney plaintiffs
have not explained why Rule 23(e) is not an adequate remedy to
oppose the Callery settlement. That said, it does not go unnoticed
by the Court that HOP's actions may have violated the spirit of the
Court's Interim Class Counsel order, if not its explicit terms.
The Court contemplated that its Interim Class Counsel order would
mean that the Melville and Mullaney plaintiffs would participate in
any settlement that attempted to extinguish their claims. But for
the reasons explained here, the Court declines to rule on the
Plaintiffs' request for sanctions and denies the Plaintiffs'
request to enjoin the Callery settlement or otherwise dictate its
terms. But the Plaintiffs' request for sanctions is denied without
prejudice for renewal if this case proceeds.
For these reasons, the Court grants the Defendant's request for a
stay. The Melville and Mullaney cases will be stayed pending
resolution of the settlement in Callery. Notwithstanding this stay,
the parties must update the Court within 90 days of this Order on
the status of the Callery litigation.
Additionally, the Plaintiffs' request for an Order to Show Cause is
denied without prejudice. The Clerk of Court is directed to
terminate the pending motions at ECF Nos. 134 and 138.
A full-text copy of the Court's Opinion & Order is available at
https://tinyurl.com/yuft7sry from PacerMonitor.com.
HOP ENERGY: Court Grants Bid for Stay in Mullaney Class Suit
------------------------------------------------------------
Magistrate Judge Victoria Reznik of the U.S. District Court for the
Southern District of New York grants the Defendant's request for a
stay in the lawsuit titled MICHELLE MULLANEY and ROBERT MULLANEY,
On behalf of themselves and all others similarly situated,
Plaintiff v. HOP ENERGY, LLC, Defendant, Case No.
7:23-cv-07318-KMK-VR (S.D.N.Y.). RYAN MELVILLE, On behalf of
himself and all others similarly situated, Plaintiff v. HOP ENERGY,
LLC, Defendant, Case No. 21-cv-10406-KMK-VR (S.D.N.Y.).
Before the Court is the Defendant's motion to stay this matter
pending a class action settlement in a separate case in another
jurisdiction (the Callery settlement). The parties filed virtually
identical motion papers in Melville and Mullaney. Unless otherwise
noted, Judge Reznik says all ECF Nos. refer to those assigned to
filings in Melville v. HOP Energy, LLC, 21-cv-10406-KMK-VR
(S.D.N.Y.). Similarly, all page numbers refer to the ECF pagination
printed in blue at the top of each ECF filed page.
Also before the Court is the Plaintiffs' motion for an Order to
Show Cause asking for sanctions against the Defendant for allegedly
violating the Court's Interim Class Counsel Order. For reasons set
forth in this Opinion & Order, the Court grants the Defendant's
request for a stay. Additionally, the Plaintiffs' request for
sanctions (and related relief) is denied without prejudice.
In June 2020, Brian Callery, a former HOP Energy customer, filed a
lawsuit in Pennsylvania state court alleging that HOP Energy did
not intend to honor their promise to charge the Plaintiff the
actual prevailing retail price for heating oil, but rather engaged
in a scheme where HOP created a false, inflated "prevailing retail
price," which they quoted to Capped Plan customers" (Callery, et
al. v. HOP Energy, LLC, 20-cv-3652-CMR (E.D. Pa.) (Callery)). HOP
removed Callery to the United States District Court for the Eastern
District of Pennsylvania, where it is pending.
Then, in December 2021, Melville was filed by Ryan Melville, a
former HOP customer, alleging that HOP breached its contract by not
delivering heating oil at its promotional prevailing retail price
for first-year customers. Later, in August 2023, counsel for
Melville filed the Mullaney case in this Court, alleging that HOP
breached its contract with the Plaintiff by overcharging customers,
who purchased variable-rate heating oil, from HOP.
At various points during discovery, the Plaintiffs disputed whether
Callery overlapped with Melville and Mullaney, citing Judge Karas'
opinion denying HOP's previous motion to stay. According to the
Plaintiffs, Melville and Mullaney do not overlap with Callery
because Callery involved customer contracts with capped pricing,
not variable pricing.
Conversely, the Defendant has a more expansive view of Callery,
arguing that the cases do overlap because each plaintiff was a
capped price program customer, and each plaintiff's agreement
provided that the customer would pay HOP's prevailing retail price
upon the expiration of the contract term or when HOP delivered the
designated number of gallons to the customer.
In December 2023, all parties participated in a global mediation,
which was ultimately unsuccessful. Soon thereafter, counsel for the
Plaintiffs sought an order to be appointed interim class counsel
for Melville and Mullaney, arguing that the Defendant would engage
in a reverse auction by settling Callery in a way that would
subsume the Melville and Mullaney classes and claims.
In May 2024, this Court granted the request of the Plaintiffs'
counsel to be appointed Interim Class Counsel. But in doing so, the
Court did not specifically define the scope of the Plaintiffs'
authority in those settlement negotiations nor specifically enjoin
the Defendant from entering settlement negotiations or discussions
in Callery. Despite this, the Court assumed that any further
settlement negotiations would involve interim class counsel for the
Melville and Mullaney plaintiffs if the settlement attempted to
resolve claims on their behalf.
After this Court entered the Interim Class Counsel (ICC) order, the
Defendant continued to engage in settlement discussions with
counsel for Callery but without the involvement of counsel for the
Melville and Mullaney plaintiffs. The parties dispute the
circumstances behind why the Melville and Mullaney plaintiffs were
not included in those later discussions. The Plaintiffs argue that
the negotiations were "secret" and "collusive." But the Defendant
asserts that the Plaintiffs made clear they were not interested in
continuing settlement discussions. Indeed, according to the
Defendant, they had rejected the Plaintiffs' settlement demand in
April 2024 and believed the Plaintiffs were thereafter "unwilling
to pursue settlement talks."
Those settlement discussions resulted in an agreement in principle
between the Callery plaintiffs and the Defendant. On July 16, 2024,
the Callery plaintiffs filed a motion for preliminary approval of
the settlement with the federal court in Pennsylvania. If approved,
the settlement would potentially encompass the proposed claims of
the Melville and Mullaney plaintiffs and their proposed putative
class.
As a result, the Defendant seeks to stay this action pending the
case-dispositive settlement in Callery. The Plaintiffs oppose,
primarily arguing that the Defendant violated the Court's ICC Order
by settling their claims in Callery without the Plaintiffs'
involvement and that the Defendant should not be rewarded for such
conduct with a stay of this case.
In deciding whether to issue a stay, Judge Reznik notes that courts
in this Circuit will consider the following factors, often referred
to as the Kappel factors: 1) the private interests of the
plaintiffs in proceeding expeditiously with the civil litigation as
balanced against the prejudice to the plaintiffs if delayed; 2) the
private interest of and burden on the defendants; 3) the interests
of the courts; 4) the interests of persons not parties to the civil
litigation; and 5) the public interest, citing Rankine v. Levi
Strauss & Co., 674 F. Supp. 3d 57, 68 (S.D.N.Y. 2023) (quoting
Kappel v. Comfort, 914 F. Supp. 1056, 1058 (S.D.N.Y. 1996)).
Because the Plaintiffs have not persuasively argued that prejudice
would follow from a stay, Judge Reznik finds the first factor only
slightly weighs in their favor. In light of the pending discovery
that still needs to be exchanged, as well as the "concrete"
prejudice that the Defendant would suffer should this case
continue, it is clear to the Court that the second factor counsels
granting a stay.
The third factor -- the interest of the courts -- similarly weighs
in favor of granting a stay, Judge Reznik holds. Both the fourth
and fifth factors -- the interests of non-parties and of the public
-- are served by granting a stay, as well, because Judge Reznik
explains it would promote the efficient use of judicial resources
and minimize the possibility of conflicts between different
courts.
As such, Judge Reznik finds four of the five Kappel factors favor
granting a stay of this action pending a resolution in Callery.
In a separate filing, the Plaintiffs requested an Order to Show
Cause as to why the Defendant should not be held in civil contempt
for allegedly violating the Court's Interim Class Counsel Order and
engaging in a collusive reverse auction settlement. As part of that
request, the Plaintiffs ask the Court to force HOP to carve-out the
Melville and Mullaney plaintiffs in their Callery settlement and to
enjoin HOP, under the All Writs Act (28 U.S.C. Section 1651(a)),
from settling the claims of the proposed Melville and Mullaney
classes in Callery.
Although the Plaintiffs have raised potentially valid concerns
about how the Callery settlement was negotiated without their
involvement, the parties' dueling affidavits demonstrate that there
are likely two or more sides to this story, Judge Reznik notes.
Perhaps the Defendant tried to evade this Court's Interim Class
Counsel order and negotiate a reverse auction settlement that
settles claims on the cheap, as the Plaintiffs argue. Or perhaps
the Plaintiffs were jockeying for control of global settlement
discussions, refused to negotiate in good faith, and made any
recovery for the proposed class less likely with scorched-earth
litigation tactics (as the Defendant argues).
The truth may be somewhere in the middle, Judge Reznik says. In any
case, the Court declines to delve into the merits of these
allegations, which, in essence, go to the adequacy of the proposed
settlement in Callery, including the fairness of its proposed terms
and the scope of the purported class. The Court is not tasked with
evaluating the settlement in Callery; the judge in Callery is,
Judge Reznik opines.
Although the Plaintiffs argue that the Court should intervene by
enjoining HOP from entering into the Callery settlement under the
All Writs Act, the Court is not convinced it has the authority to
do such a thing. The Act is generally used to prohibit activities
in another court (typically a state court) that threaten to
undermine a pending settlement in the enjoining court.
Judge Reznik opines that the the Melville and Mullaney plaintiffs
have not explained why Rule 23(e) is not an adequate remedy to
oppose the Callery settlement. That said, it does not go unnoticed
by the Court that HOP's actions may have violated the spirit of the
Court's Interim Class Counsel order, if not its explicit terms.
The Court contemplated that its Interim Class Counsel order would
mean that the Melville and Mullaney plaintiffs would participate in
any settlement that attempted to extinguish their claims. But for
the reasons explained here, the Court declines to rule on the
Plaintiffs' request for sanctions and denies the Plaintiffs'
request to enjoin the Callery settlement or otherwise dictate its
terms. But the Plaintiffs' request for sanctions is denied without
prejudice for renewal if this case proceeds.
For these reasons, the Court grants the Defendant's request for a
stay. The Melville and Mullaney cases will be stayed pending
resolution of the settlement in Callery. Notwithstanding this stay,
the parties must update the Court within 90 days of this Order on
the status of the Callery litigation.
Additionally, the Plaintiffs' request for an Order to Show Cause is
denied without prejudice. The Clerk of Court is directed to
terminate the pending motions at ECF Nos. 134 and 138.
A full-text copy of the Court's Opinion & Order is available at
https://tinyurl.com/4v7tdfzk from PacerMonitor.com.
HORMEL FOODS: Court Denies Bid to Dismiss Payne ERISA Class Suit
----------------------------------------------------------------
In the lawsuit entitled Scott Payne, Plaintiff v. Hormel Foods
Corp., The Board of Directors of Hormel Foods Corp., and John Does
1–40, Defendants, Case No. 0:24-cv-00545-SRN-DTS (D. Minn.),
Judge Susan Richard Nelson of the U.S. District Court for the
District of Minnesota denies the Defendants' Motion to Dismiss.
Defendants Hormel Foods Corporation, the Hormel Foods Corporation
Board of Directors ("the Board"), and the John Doe officers,
employees, and contractors of the Hormel Foods Corporation
(collectively, "the Defendants" or "Hormel"), sponsor and operate
two retirement plans for Hormel employees: the Hormel Foods
Corporation Tax Deferred Investment Plan A ("Plan A"), and the
Hormel Foods Corporation Joint Earnings Profit Sharing Trust
("JEPST Plan") (collectively, "the Plans").
Together, the Plans hold at least $1.2 billion in assets under
management. The Plans each offer several different investment
options, with varying risk levels, which participants may elect.
The majority of these investment options are not at issue here.
Mr. Payne is a participant in the Plans, and has been since at
least 2017. In this putative class action lawsuit, he directs his
claims towards two aspects of the Plans: (1) the stable value
investment option; and (2) the share classes selected for certain
mutual funds.
Mr. Payne initiated this putative class action lawsuit on Feb. 21,
2024, on behalf of himself and all persons, who were participants
or beneficiaries of the Plans during the relevant period. He
alleges that Hormel breached its duty of care, skill, prudence, and
diligence under the Employee Retirement Income Security Act of 1974
("ERISA") by selecting the underperforming stable value investment
option, and by retaining more expensive share classes in certain
mutual funds when less expensive share classes were available.
Hormel moves to dismiss the Complaint under Federal Rule of Civil
Procedure 12(b)(6), arguing that Mr. Payne fails to state a claim
upon which relief can be granted. Hormel argues that Mr. Payne
fails to plausibly allege a breach of fiduciary duty with respect
to either the stable value investment option or the retention of
more expensive mutual fund share classes, and that he fails to
plausibly allege that the Board is a fiduciary within the meaning
of ERISA.
Taking the facts as true and drawing all reasonable inferences in
the Plaintiff's favor, the Court finds that Mr. Payne has plausibly
pled meaningful benchmarks against which to judge whether the
MassMutual general account GIC underperformed. The Court further
finds that the Plaintiff plausibly alleges that the MassMutual
separate account GICs are a meaningful benchmark.
Taking the facts as true and drawing all reasonable inferences in
Mr. Payne's favor, the Court finds that he has plausibly alleged
that MassMutual's separate account GICs are also a meaningful
benchmark. The Court also finds it plausible that a prudent
fiduciary in the circumstances alleged would have acted
differently, and denies the motion to dismiss on this basis.
The Court also finds that the Plaintiff has plausibly alleged a
breach of fiduciary duty with respect to the Harbor Fund share
classes, and he plausibly alleged that the Defendants' fiduciary
process with respect to the Plans was flawed in these respects.
Accordingly, the motion to dismiss on this basis is denied.
Based on the submissions and the entire file and proceedings, the
Court denies the Defendants' Motion to Dismiss.
A full-text copy of the Court's Order is available at
https://tinyurl.com/ye2x8vye from PacerMonitor.com.
Katherine Rollins -- kerollins@wantathome.com -- Scott Moriarity --
samoriarity@wantathome.com -- Shawn Wanta -- sjwanta@wantathome.com
-- Wanta Thome PLC, in Minneapolis, MN 55402, for the Plaintiff.
Andrew Holly -- holly.andrew@dorsey.com -- Brock Huebner --
huebner.brock@dorsey.com -- Dorsey & Whitney LLP, in Minneapolis,
MN 55402, for the Defendants.
ILEARNINGENGINES INC: Faces Walker Suit Over Share Price Drop
-------------------------------------------------------------
DANNY WALKER, individually and on behalf of all others similarly
situated v. ILEARNINGENGINES, INC., Harish Chidambaran, and Sayyed
Farhan Naqvi, Case No. 8:24-cv-02900-DKC (D. Md., Oct. 7, 2024) is
a class action on behalf of persons and entities that purchased or
otherwise acquired iLearningEngines securities between April 22,
2024 and Aug. 28, 2024, inclusive (the "Class Period").
On Aug. 29, 2024, before the market opened, Hindenburg Research
published a report titled "iLearningEngines: An Artificial
Intelligence SPAC With Artificial Partners and Artificial Revenue."
In its report, Hindenburg Research alleged that nearly all of the
Company's revenue and expenses in 2022 and 2023 were run through an
undisclosed related party, which the Company refers to as their
"Technology Partner." Hindenburg Research alleged the Company used
its undisclosed related party relationship with this Technology
Partner to falsely report $138 million in revenue from the Indian
market in 2022, when in reality, total revenue was, in fact,
$853,471.00, or 99.4% less than what iLearningEngines' claimed in
revenue in the country that period.
On this news, the Company's share price fell $1.70 or 53.3%, to
close at $1.49 on Aug. 29, 2024, on unusually heavy trading volume.
The Plaintiff contends that the Defendants failed to disclose to
investors: (1) that the Company used its undisclosed related party
Technology Partner to report "largely fake" revenue and expenses;
(2) that, as a result of the foregoing, the Company significantly
overstated its revenue; and (3) that, as a result of the foregoing,
the Defendants' positive statements about the Company's business,
operations, and prospects were materially misleading and/or lacked
a reasonable basis.
As a result of Defendants' wrongful acts and omissions, and the
precipitous decline in the market value of the Company's
securities, the Plaintiff and other Class members have suffered
significant losses and damages.
The Plaintiff pursues claims against the Defendants under the
Securities Exchange Act of 1934.
Plaintiff Walker purchased iLearningEngines securities during the
Class Period.
iLearningEngines purports to be an "AI-powered learning automation"
software company.[BN]
The Plaintiff is represented by:
Stephen A. Weisbrod, Esq.
William E. Jacobs, Esq.
WEISBROD MATTEIS & COPLEY PLLC
3000 K Street, NW, Suite 275
Washington, DC 20007
Telephone: (202) 499-7900
E-mail: sweisbrod@wmclaw.com
wjacobs@wmclaw.com
- and -
Robert V. Prongay, Esq.
Charles H. Linehan, Esq.
GLANCY PRONGAY & MURRAY LLP
1925 Century Park East, Suite 2100
Los Angeles, CA 90067
Telephone: (310) 201-9150
Facsimile: (310) 201-9160
- and -
Corey D. Holzer, Esq.
HOLZER & HOLZER, LLC
211 Perimeter Center Parkway, Suite 1010
Atlanta, GA 30346
Telephone: (770) 392-0090
Facsimile: (770) 392-0029
INNOVATIVE INDUSTRIAL: Handal Appeals Dismissal of 2nd Amended Suit
-------------------------------------------------------------------
ALEJANDRO HANDAL, et al. are taking an appeal from a court order
dismissing the lawsuit entitled Michael V. Mallozzi, et al.,
individually and on behalf of all others similarly situated,
Plaintiffs, v. Innovative Industrial Properties Inc., et al.,
Defendants, Case No. 2-22-cv-02359, in the U.S. District Court for
the District of New Jersey.
The lawsuit was purportedly brought on behalf of purchasers of the
company's common stock and alleges that the company and certain of
the company's officers made false or misleading statements
regarding the company's business in violation of Section 10(b) of
the Securities Exchange Act of 1934, SEC Rule 10b-5, and Section
20(a) of the Exchange Act. According to the filed complaint, the
Plaintiff is seeking an undetermined amount of damages, interest,
attorneys' fees and costs and other relief on behalf of the
putative classes of all persons who acquired shares of the
company's common stock between May 7, 2020 and April 13, 2022.
On September 29, 2022, an Amended Class Action complaint was filed
under the same Case Number, adding as defendants Alan D. Gold and
Benjamin C. Regin, and asserting causes of action under Sections
10(b) and 20(a) of the Securities Exchange Act of 1934 and Rule
10b-5 promulgated thereunder. According to the Amended Class Action
Complaint, the Plaintiff is seeking an undetermined amount of
damages, interest, attorneys' fees and costs and other relief on
behalf of the putative classes of all persons who acquired shares
of the company's common stock between August 7, 2020 and August 4,
2022.
On December 1, 2022, the Defendants moved to dismiss the Amended
Class Action Complaint.
On January 25, 2023, the Plaintiff responded to the Defendants'
motion to dismiss the Amended Class Action Complaint; and on March
6, 2023, the Defendants replied to the Plaintiff's response.
On Sept. 19, 2023, Judge Evelyn Padin granted the Defendants'
motion to dismiss the amended complaint.
On Oct. 19, 2023, the Plaintiffs filed a second amended complaint,
which the Defendants moved to dismiss on Dec. 18, 2023.
On Sept. 25, 2024, Judge Padin granted the Defendants' motion to
dismiss the second amended complaint, holding that the Plaintiffs
have not adequately alleged an underlying securities violation. The
case was dismissed with prejudice.
Lead Plaintiff Alejandro Handal appealed the ruling to the United
States Court of Appeals for the Third Circuit on October 1, 2024.
The appellate case is captioned Alejandro Handal, et al. v.
Innovative Industrial Properties Inc, et al., Case No. 24-2829.
[BN]
Plaintiffs-Appellants ALEJANDRO HANDAL, et al., individually and on
behalf of all others similarly situated, are represented by:
Jacob A. Goldberg, Esq.
Gonen Haklay, Esq.
THE ROSEN LAW FIRM
101 Greenwood Avenue, Suite 440
Jenkintown, PA 19046
Telephone: (215) 600-2817
- and -
Laurence M. Rosen, Esq.
THE ROSEN LAW FIRM
275 Madison Avenue, 40th Floor
New York, NY 10016
Telephone: (973) 313-1887
Defendants-Appellees INNOVATIVE INDUSTRIAL PROPERTIES INC., et al.
are represented by:
Christopher A. DeGennaro, Esq.
FOLEY & LARDNER
90 Park Avenue
New York, NY 10016
Telephone: (212) 338-3441
- and -
Stacy R. Obenhaus, Esq.
FOLEY & LARDNER
2021 McKinney Avenue, Suite 1600
Dallas, TX 75201
Telephone: (214) 999-4868
INVIVYD INC: Massachusetts Court Dismisses Brill Securities Suit
----------------------------------------------------------------
Judge Julia E. Kobick of the U.S. District Court for the District
of Massachusetts grants with prejudice the Defendants' motion to
dismiss the lawsuit captioned LAURA L. BRILL, Individually and on
Behalf of All Others Similarly Situated, Plaintiff v. INVIVYD,
INC., TILLMAN U. GERNGROSS, and LAURA WALKER, Defendants, Case No.
1:23-cv-10254-JEK (D. Mass.).
The case is a putative class action lawsuit alleging violations of
Sections 10(b) and 20(a) of the Securities Exchange Act of 1934 and
Securities and Exchange Commission Rule 10b-5. Defendant Invivyd,
Inc., (at all relevant times called Adagio Therapeutics, Inc.) is a
biopharmaceutical company that, in 2021, developed a monoclonal
antibody therapy for the prevention and treatment of COVID-19.
Adagio's lead product candidate, ADG20, had been successful in
combatting the original strain of SARS-CoV-2 and its early
variants, including Alpha, Beta, Delta, and Gamma.
When the Omicron variant emerged in November 2021, Adagio and the
Individual Defendants optimistically predicted that ADG20 would
continue to be effective against the new variant. They made several
public statements to that effect on Nov. 29 and Dec. 1, 2021, only
to reveal on Dec. 14, 2021, that in vitro testing results
demonstrated a 300-fold reduction in ADG20's effectiveness against
Omicron.
Adagio's common stock price increased from $25.12 to $46.83 per
share following the Defendants' statements on Nov. 29, 2021, and
then fell to $5.57 per share by Dec. 15, 2021, after the release of
the in vitro results.
The Lead Plaintiffs and putative class members purchased stock of
Adagio during the Nov. 29 to Dec. 14, 2021 class period. In their
second amended complaint, the Plaintiffs allege that the
Defendants' Nov. 29 and Dec. 1, 2021 statements were materially
false or misleading, in violation of section 10(b), Rule 10b-5, and
section 20(a).
Pending before the Court is the Defendants' motion to dismiss the
second amended complaint with prejudice and without leave to amend.
The Defendants contend, and the Court agrees, that the Plaintiffs
fail to allege that the Defendants' statements were materially
false or misleading under the heightened pleading standards
required under Federal Rule of Civil Procedure 9(b) and the Private
Securities Litigation Reform Act. The Plaintiffs also fail to
allege facts sufficient to show that the Defendants acted with the
requisite scienter. The Defendants' motion will, therefore, be
granted.
Lead Plaintiffs Robyn Fizz and Gerald Hass and putative class
members purchased common stock of Adagio Therapeutics, Inc. between
Nov. 29 and Dec. 14, 2021 (the "Class Period"). Defendant Invivyd,
Inc.--then called Adagio Therapeutics, Inc.--is a clinical-stage
biopharmaceutical company that, during the Class Period, was
focused on developing a monoclonal antibody therapy to prevent and
treat COVID-19.
Defendant Tillman Gerngross is a co-founder of Adagio and, during
the Class Period, served as its Chief Executive Officer and a
member of the Board of Directors. Defendant Laura Walker is also a
cofounder of Adagio and, during the Class Period, served as its
Chief Scientific Officer.
Adagio was founded in June 2020, in the throes of the COVID-19
pandemic, to develop drugs for treating and preventing COVID-19 and
future coronavirus outbreaks. It conducted an initial public
offering ("IPO") on Aug. 6, 2021, and as part of the IPO, filed
with the Securities and Exchange Commission ("SEC") a Form S-1
Registration Statement on July 16, 2021, and its SEC Rule 424(b)(4)
final prospectus (the "Prospectus") on Aug. 6, 2021.
During the Class Period, Adagio's lead product candidate was ADG20.
According to the Prospectus, ADG20 was designed to be a potent,
long-acting and broadly neutralizing antibody for both the
treatment and prevention of COVID-19 as either a single or
combination agent. At the time, most available antibody treatments
for COVID-19, including ADG20, targeted the "spike protein" of the
SARS-CoV-2 virus. The spike protein is the structural portion of
the SARS-CoV-2 virus that enables it to enter a human host cell and
begin replicating.
The original complaint in this case was filed on Jan. 31, 2023. On
June 28, 2023, the Court appointed Robyn Fizz and Gerald Hass as
Lead Plaintiffs. With leave of the Court, the Plaintiffs filed an
amended complaint on Aug. 23, 2023, and the operative second
amended complaint on Nov. 22, 2023 (the "SAC"). The SAC alleges
that Invivyd (Adagio) and the Individual Defendants, Dr. Gerngross
and Dr. Walker, violated Section 10(b) of the Securities Exchange
Act of 1934 and Rule 10b-5 (Count I); and that Dr. Gerngross and
Dr. Walker violated section 20(a) of the Securities Exchange Act of
1934 (Count II).
On Jan. 12, 2024, the Defendants moved to dismiss the complaint
with prejudice and without leave to amend. The Defendants advance
three principal arguments as to why the allegations set forth in
the SAC are inadequate to state claims under section 10(b) and Rule
10b-5, each of which could independently serve as grounds for
dismissal: (1) the relevant statements fall within the scope of the
safe-harbor provisions of the Private Securities Litigation Reform
Act ("PSLRA"); (2) the relevant statements were not materially
false or misleading; and (3) facts alleged do not support a strong
inference of scienter.
Bypassing the Defendants' safe harbor argument, the Court concludes
that the facts alleged in the SAC do not plausibly show that the
Defendants made materially false or misleading statements or
omissions, nor do they establish a strong inference of scienter.
Having already been afforded two opportunities to amend the
complaint, Judge Kobick notes that the Plaintiffs, nevertheless,
request leave to file a third amended complaint if the Court were
to grant the motion to dismiss.
The Plaintiffs do not, however, identify any additional substantive
allegations that would be included in a possible third amended
complaint, Judge Kobick says. Nor do they offer any argument as to
why justice otherwise requires amendment. Accordingly, the request
for leave to amend is denied.
For these reasons, the Court grants the Defendants' motion to
dismiss. The second amended complaint is dismissed with prejudice
and without leave to amend.
A full-text copy of the Court's Memorandum and Order is available
at https://tinyurl.com/5b2ftffs from PacerMonitor.com.
IRIS ENERGY: Securities Artificially Inflated, Williams-Israel Says
-------------------------------------------------------------------
PAUL WILLIAMS-ISRAEL, Individually and on behalf of all others
similarly situated v. IRIS ENERGY LIMITED (IREN), DANIEL ROBERTS,
WILLIAM ROBERTS, and BELINDA NUCIFORA, Case No. 1:24-cv-07046
(E.D.N.Y., Oct. 7, 2024) is a class action on behalf of persons or
entities who purchased or otherwise acquired publicly traded IREN
securities between June 20, 2023, and July 11, 2024, inclusive (the
"Class Period").
During the Class Period, the Defendants, individually and in
concert, directly or indirectly, disseminated or approved false
statements, which they knew or deliberately disregarded were
misleading in that they contained misrepresentations and failed to
disclose material facts necessary in order to make the statements
made, in light of the circumstances under which they were made, not
misleading.
The Defendants acted with scienter in that they knew that the
public documents and statements issued or disseminated in the name
of IREN were materially false and misleading; knew that such
statements or documents would be issued or disseminated to the
investing public; and knowingly and substantially participated, or
acquiesced in the issuance or dissemination of such statements or
documents as primary violations of the securities laws.
As a result, the market price of IREN securities was artificially
inflated during the Class Period. In ignorance of the falsity of
Defendants' statements, the Plaintiff and the other members of the
Class relied on the statements and/or the integrity of the market
price of IREN securities during the Class Period in purchasing IREN
securities at prices that were artificially inflated as a result of
the Defendants' false and misleading statements, says the suit.
Had the Plaintiff and the other members of the Class been aware
that the market price of IREN securities had been artificially and
falsely inflated by Defendants' misleading statements and by the
material adverse information which Defendants did not disclose,
they would not have purchased IREN securities at the artificially
inflated prices that they did, or at all.
The Plaintiff seeks to recover compensable damages caused by the
Defendants' violations of the federal securities laws under the
Securities Exchange Act of 1934.
The Plaintiff purchased IREN securities during the Class Period and
was economically damaged thereby.
Iris Energy Limited owns and operates bitcoin mining data
centers.[BN]
The Plaintiff is represented by:
Laurence Rosen, Esq.
Phillip Kim, Esq.
THE ROSEN LAW FIRM, P.A.
275 Madison Avenue, 40th Floor
New York, NY 10016
Telephone: (212) 686-1060
Facsimile: (212) 202-3827
E-mail: lrosen@rosenlegal.com
philkim@rosenlegal.com
JOHNSON, TN: Must Oppose Class Cert Bid by Nov. 22
--------------------------------------------------
In the class action lawsuit captioned as JANE DOE, et. al., v.
JOHNSON CITY, TENNESSEE, et al., Case No. 2:23-cv-00071-TRM-JEM
(E.D. Tenn.), the Hon. Judge Travis McDonough entered an order
granting the parties' joint motion to amend the briefing schedule
for Plaintiffs' motion for class certification:
1. The Plaintiffs' motion for class certification shall be filed
on
or before Oct. 15, 2024.
2. Defendants' response in opposition to the motion for class
certification shall be filed on or before Nov. 22, 2024.
3. Plaintiffs' reply in support of the motion for class
certification shall be filed on or before Dec. 6, 2024.
4. Plaintiffs are authorized to file their opening brief in
support
of their motion for class certification in excess of the page
limit prescribed by Local Rule 7.1(b) up to and including 30
pages, excluding the table of contents, the table of
authorities, exhibits, declarations, the proof of service, or
signature pages.
5. Defendants are authorized to file their response brief in
opposition to the motion for class certification in excess of
the page limit prescribed by Local Rule 7.1(b) up to and
including 30 pages, excluding the table of contents, the
table
of authorities, exhibits, declarations, the proof of service,
or
signature pages.
Johnson is a city in Carter, Sullivan, and Washington counties in
the U.S. state of Tennessee, with most of the city being in
Washington County.
A copy of the Court's order dated Oct. 7, 2024, is available from
PacerMonitor.com at https://urlcurt.com/u?l=0PUsTL at no extra
charge.[CC]
KATHY KUO: Trippett Sues Over Website's Access Barriers
-------------------------------------------------------
ALFRED TRIPPETT, on behalf of himself and all others similarly
situated, Plaintiff v. Kathy Kuo Designs, Inc., Defendant, Case No.
1:24-cv-06893 (E.D.N.Y., Sept. 30, 2024) is a civil rights action
against the Defendant for its failure to design, construct,
maintain, and operate its website, https://www.kathykuohome.com, to
be fully accessible to and independently usable by Plaintiff and
other blind or visually-impaired persons in violation of the
Americans with Disabilities Act, the New York State Human Rights
Law, and the New York City Human Rights Law.
On July 29, 2024, the Plaintiff intended to purchase dinnerware in
preparation for a party and encountered the Defendant's website.
Attracted by the website's offerings, he explored the extensive
range of high end home goods. He selected the Juliska Provence
Modern Classic Clear Glass Pitcher but while attempting to make a
purchase he encountered accessibility issues including
non-focusable interactive elements via keyboard, ambiguous
interactive elements, inaccurate labeling of form fields. As a
result, he was unable to easily navigate through the webpages and
complete the purchase. These access barriers have caused
Kathykuohome.com to be inaccessible to, and not independently
usable by blind and visually-impaired people, says the Plaintiff.
The Plaintiff seeks a permanent injunction to cause a change in
Kathy Kuo Designs' policies, practices, and procedures so that
Defendant's website will become and remain accessible to blind and
visually-impaired consumers. This complaint also seeks compensatory
damages to compensate Class members for having been subjected to
unlawful discrimination.
Kathy Kuo Designs, Inc. operates the website that offers a variety
of home furnishings and decor, including categories such as
furniture, lighting, rugs and decor items.[BN]
The Plaintiff is represented by:
Gabriel A. Levy, Esq.
GABRIEL A. LEVY, P.C.
1129 Northern Blvd., Suite 404
Manhasset, NY 11030
Telephone: (347) 941-4715
E-mail: glevyfirm@gmail.com
KISS NAIL: Website Inaccessible to Blind Users, Karim Says
----------------------------------------------------------
JESSICA KARIM, on behalf of herself and all others similarly
situated, Plaintiff v. Kiss Nail Products, Inc., Defendant, Case
No. 1:24-cv-07366 (S.D.N.Y., Sept. 30, 2024) is a civil rights
action against the Defendant for its failure to design, construct,
maintain, and operate its website https://www.kissusa.com to be
fully accessible to and independently usable by Plaintiff and other
blind or visually-impaired persons in violation of the Americans
with Disabilities Act, the New York State Human Rights Law, and the
New York City Human Rights Law.
The Plaintiff alleges that Kiss Nail Products denies her and other
similarly situated blind individuals access to goods, services and
information made available through Kissusa.com. The website
contains access barriers that prevent free and full use using
keyboards and screen-reading software. These barriers are pervasive
and include, but are not limited to: inaccurate heading hierarchy,
changing of content without advance warning, inaccessible contact
information, inadequate focus order, unclear labels for interactive
elements, the lack of adequate labeling of form fields, and the
requirement that transactions be performed solely with a mouse,
says the Plaintiff.
The Plaintiff seeks a permanent injunction to cause a change in
Kiss Nail Products' policies, practices, and procedures so that
Defendant's website will become and remain accessible to blind and
visually-impaired consumers. This complaint also seeks compensatory
damages to compensate Class members for having been subjected to
unlawful discrimination.
Kiss Nail Products, Inc. operates the website which provides
consumers with access to an array of goods and services, including,
the ability to view artificial nails, nail kits, false eyelashes,
eyelash glue, hair styling tools and accessories.[BN]
The Plaintiff is represented by:
Gabriel A. Levy, Esq.
GABRIEL A. LEVY, P.C.
1129 Northern Blvd., Suite 404
Manhasset, NY 11030
Telephone: (347) 941-4715
E-mail: glevyfirm@gmail.com
LANSING COMMUNITY: Settles Data Breach Class Suit for $1.45MM
-------------------------------------------------------------
Tyler Schneider, writing for Lansing City Pulse, reports that more
than 750,000 former, current or even potential Lansing Community
College students may be eligible for a portion of a $1.45 million
class action settlement tied to an early 2023 data breach,
according to mailers sent to some of those impacted.
Mailers that say "You are Eligible for a CASH PAYMENT" began
arriving this week. It is unclear how many mailers were sent.
Compromised data, including names and Social Security numbers,
could have been accessed by an "unauthorized actor" between Dec.
25, 2022, and March 15, 2023, said the mailers and documents
submitted to U.S. District Court for the Western District of
Michigan.
Those who file a claim by Dec. 30 are eligible for a cash payment
in an undetermined amount based on how many file.
Additionally, individuals who believe they experienced "actual
out-of-pocket losses," so long as they are documented and "more
likely than not" related to the breach, are eligible for
reimbursements of "up to $2,000 per individual," according to the
mailers.
Shub & Johns LLC, a Pennsylvania-based law firm, filed the class
action lawsuit in July 2023. In June, the firm filed an unopposed
motion for preliminary settlement approval. According to court
documents, final approval could be issued following a hearing
before District Judge Paul L. Maloney on Jan. 21, 2025.
As part of the settlement, LCC has agreed to "institute policies,
procedures, and additional security-related remedial measures,"
according to court documents. These include implementing additional
security programs, updating its software and systems, resetting
passwords of compromised accounts and "expanding use of
multi-factor authorization."
According to Shub & Johns' website, "though the company experienced
the breach in March 2023, it did not begin informing impacted
consumers until June 30, 2023." Efforts to reach for comment
attorney Benjamin F. Johns, who is leading the case for the firm,
were not immediately successful.
Asked for comment, LCC media spokesperson Marilyn Twine emailed a
statement:
"Lansing Community College has reached a settlement agreement with
the plaintiffs in a legal case related to the March 2023 cyber
incident. This settlement agreement is subject to the court's final
approval following a January 21, 2025, hearing. A notice regarding
this settlement has been mailed to individuals whose personal
information may have been involved in the cyber incident."
To submit a claim or learn more about the settlement, visit
www.lansingsettlement.com. [GN]
LIVE NATION: Caballero Suit Transferred to D. Montana
-----------------------------------------------------
The case captioned as Jodi Caballero, Owen Conlan, Bryan Curtis,
Kelley Davis, Charles Fitzgerald, Brendan Healy, Chris Rippel,
Michael Walters, individually and on behalf of all others similarly
situated v. Live Nation Entertainment, Inc., Ticketmaster LLC, Case
No. 2:24-cv-04625 was transferred from the U.S. District Court for
the Central District of California, to the U.S. District Court for
the District of Montana on Oct. 9, 2024.
The District Court Clerk assigned Case No. 2:24-cv-00116-BMM to the
proceeding.
The nature of suit is stated as Other Personal Property for Breach
of Fiduciary Duty.
Live Nation Entertainment, Inc. --
https://www.livenationentertainment.com/ -- is an American
multinational entertainment company that was founded in 2010
following the merger of Live Nation and Ticketmaster.[BN]
The Plaintiff is represented by:
David Binder Jonelis, Esq.
LAVELY AND SINGER PC
2049 Century Park East Suite 2400
Los Angeles, CA 90067-2906
Phone: (310) 556-3501
Email: djonelis@lavelysinger.com
- and -
Alex M. Kashurba, Esq.
Beena M. McDonald, Esq.
Marissa Pembroke, Esq.
Steven A. Schwartz, Esq.
CHIMICLES SCHWARTZ KRINER AND DONALDSON-SMITH LLP
361 W. Lancaster Avenue
Haverford, PA 19041
Phone: (610) 642-8500
Email: amk@chimicles.com
bmm@chimicles.com
mnp@chimicles.com
sas@chimicles.com
- and -
James J. Rosemergy, Esq.
CAREY DANIS AND LOWE
8235 Forsyth Boulevard, Suite 1100
St Louis, MO 63105
Phone: (314) 725-7700
Fax: (314) 721-0905
Email: jrosemergy@careydanis.com
The Defendants are represented by:
James Michael Pearl, Esq.
PAUL HASTINGS LLP
1999 Avenue of the Stars, 27th Floor
Los Angeles, CA 90067
Phone: (310) 620-5700
Fax: (310) 620-5899
Email: jamespearl@paulhastings.com
- and -
D. Scott Carlton, Esq.
Raymond W. Stockstill, Esq.
PAUL HASTINGS LLP
515 South Flower Street 25th Floor
Los Angeles, CA 90071
Phone: (213) 683-6000
Fax: (213) 627-0705
Email: scottcarlton@paulhastings.com
beaustockstill@paulhastings.com
LIVE NATION: Moledina Suit Transferred to D. Montana
----------------------------------------------------
The case captioned as Faisal Moledina, individually and on behalf
of all others similarly situated v. Live Nation Entertainment,
Inc., Ticketmaster LLC, Case No. 2:24-cv-04631 was transferred from
the U.S. District Court for the Central District of California, to
the U.S. District Court for the District of Montana on Oct. 9,
2024.
The District Court Clerk assigned Case No. 2:24-cv-00117-BMM to the
proceeding.
The nature of suit is stated as Other Statutory Actions for
Tort/Non-Motor Vehicle.
Live Nation Entertainment, Inc. --
https://www.livenationentertainment.com/ -- is an American
multinational entertainment company that was founded in 2010
following the merger of Live Nation and Ticketmaster.[BN]
The Plaintiff is represented by:
Seyed Abbas Kazerounian, Esq.
Mona Amini, Esq.
KAZEROUNI LAW GROUP APC
245 Fischer Avenue Suite D1
Costa Mesa, CA 92626
Phone: (800) 400-6808
Fax: (800) 520-5523
Email: ak@kazlg.com
mona@kazlg.com
- and -
Daniel S. Robinson, Esq.
Michael Willard Olson, Esq.
ROBINSON CALCAGNIE INC.
19 Corporate Plaza Drive
Newport Beach, CA 92660
Phone: (949) 720-1288
Fax: (949) 720-1292
Email: drobinson@robinsonfirm.com
molson@robinsonfirm.com
The Defendants are represented by:
D. Scott Carlton, Esq.
PAUL HASTINGS LLP
515 South Flower Street 25th Floor
Los Angeles, CA 90071
Phone: (213) 683-6000
Fax: (213) 627-0705
Email: scottcarlton@paulhastings.com
MAJOR ENERGY: Court Grants Bid to Dismiss/Stay Glikin Class Suit
----------------------------------------------------------------
In the lawsuit captioned ANGELA GLIKIN, on behalf of herself and
all others similarly situated, Plaintiff v. MAJOR ENERGY ELECTRIC
SERVICES, LLC, Defendant, Case No. 1:21-cv-03251-MJM (D. Md.),
Judge Matthew J. Maddox of the U.S. District Court for the District
of Maryland grants the Defendant's motion to dismiss.
Plaintiff Angela Glikin brings this putative class action against
Defendant Major Energy Electric Services, LLC, alleging breach of
contract and unjust enrichment. Pending before the Court are the
Defendant's Motion to Dismiss the Amended Complaint and the
Plaintiff's Motion for Leave to File Surreply. For the reasons
stated in this Memorandum Opinion, Judge Maddox rules that the
Plaintiff's motion will be denied, and the Defendant's motion,
construed as a motion to stay these proceedings, will be granted.
Historically, Maryland residents had their electricity and natural
gas utilities supplied by regulated entities like Baltimore Gas and
Electric ("BGE"). In 1999, however, Maryland passed the Electric
Customer Choice and Competition Act, which deregulated the
utilities market and allowed customers to purchase their
electricity from licensed independent energy service companies
("ESCOs") in addition to their state and local utility companies.
The Defendant is one such ESCO and acts as a "middleman" between
the energy producer and the end-user customer, buying energy and
reselling it to customers. There is no difference in the
electricity that ESCOs provide compared with state-regulated
utility companies--the only difference is price. The Plaintiff
alleges that a local utility company's rates, like BGE's, for the
supply of electricity, thus, serves as an ideal indicator of market
conditions.
In 2013, the Plaintiff, a Maryland resident, enrolled with Entrust
Energy ("Entrust"), an ESCO, to receive electricity at a fixed rate
of 9.5¢ per kWh (kilowatt-hour). Her agreement with Entrust
provided that the plan would eventually go from a fixed rate to a
month-to-month variable rate unless she responded to a notice sent
45 days before the change went into effect. The Plaintiff alleges
that this provision was the same for all of the Defendant's
customers.
In May 2016, the Plaintiff received a letter, informing her that
Entrust had assigned her electricity supply contract to National
Gas and Electric ("NGE"). In March 2018, the Plaintiff received
another letter, informing her that NGE would soon assign her
electricity supply contract to the Defendant. The letter explained
that the Defendant would honor the Plaintiff's prior agreement with
NGE and that the variable rate calculation would remain the same.
The Plaintiff's contract with NGE was assigned to the Defendant in
April 2018. The Plaintiff alleges that the Defendant, despite
ensuring that it would provide competitive prices, immediately
began to "price gouge" her.
In January 2020, the Plaintiff realized her electric utility rates
with the Defendant were significantly higher than what BGE, her
local utility, was charging, and she cancelled her service with the
Defendant. Specifically, for the 21 months that the Defendant
supplied electricity to the Plaintiff, its rates were on average
151% higher than BGE's rates. The Plaintiff argues that a
reasonable customer would interpret the statement regarding
competitive prices to refer to the market rate and that the rates
the Defendant charged could not possibly be described as
competitive.
Not only were the Defendant's rates consistently higher than BGE's,
but they were also higher than those of other ESCOs. Of the 54
ESCOs that operated in Maryland in 2018, the Defendant's rates were
the second highest. The Plaintiff contends that the Defendant's
conduct was contrary to what a reasonable customer would have
expected from an electricity supplier that promised competitive
prices.
According to the Amended Complaint, the Plaintiff and other
customers of the Defendant were induced to purchase its energy
supply services by the Defendant's representation that its prices
would be competitive and would reflect market conditions. The
Defendant knew it could charge exorbitant rates because customers
would not know such rates were out of line with the Defendant's
competitors.
According to the Plaintiff, no interpretation of the phrase "market
conditions" could explain or justify the rates that the Defendant
charged for supplying electricity. Accordingly, the Plaintiff
alleges, no reasonable customer with adequate knowledge of the
Defendant's rates relative to the market would have chosen to
contract with the Defendant.
The Plaintiff sues on behalf of a putative class of the Defendant's
customers for its "standardized and uniform" conduct. The class is
comprised of multi-state and state-specific subclasses.
On Jan. 14, 2021, the Plaintiff filed her initial Complaint in the
District Court for the Southern District of New York, asserting
claims for breach of contract (Count I), breach of the implied
covenant of good faith and fair dealing (Count II), violations of
New York Business Law (Counts III & IV), unfair and deceptive
practices (Count V), violation of the Maryland Consumer Protection
Act (Count VI), fraud by concealment (Count VII), and unjust
enrichment (Count VIII).
The case was transferred to this Court on Dec. 12, 2021. The
Plaintiff filed an Amended Complaint on Oct. 17, 2023, dropping all
claims except for breach of contract (Count I) and unjust
enrichment (Count II). The Plaintiff does not forgo her breach of
the implied covenant of good faith and fair dealing claim in her
Amended Complaint but rather combines it with her breach of
contract claim into a single count.
The Defendant filed a notice of intent to file a motion to dismiss
on Oct. 31, 2023, for which the Court set a briefing schedule on
Nov. 8, 2023. On Nov. 28, 2023, the Defendant filed its Motion to
Dismiss. The Plaintiff filed her response in opposition to the
Defendant's motion, and the Defendant filed its reply in support of
the motion. The Plaintiff then filed a Motion for Leave to File
Surreply. The Defendant filed its response in opposition to the
Plaintiff's motion, and the Plaintiff filed a reply.
In her motion for leave to file surreply, the Plaintiff argues that
the Court should consider its proposed surreply because the
Defendant raised several new arguments in its reply brief. The
Defendant in turn contends that the Plaintiff's proposed surreply
should be denied because (1) it is untimely and (2) the Defendant
did not raise new arguments in its reply brief.
The Court agrees with the Defendant that the arguments raised in
its reply brief were not new, but rather were responsive to
arguments that the Plaintiff had made in her opposition. The
Plaintiff's Motion to File Surreply is, thus, denied, and the
proposed surreply will not be considered.
In its motion to dismiss, the Defendant argues this action should
be dismissed because the Plaintiff failed to exhaust her
administrative remedies under Maryland law by failing to pursue her
claims with the Maryland Public Service Commission ("PSC").
The Court finds that the Plaintiff's claims are unexhausted and
must first be presented to the PSC before the Court may adjudicate
them. However, the Court retains the discretion to stay the instant
proceeding, rather than dismiss it outright. In light of the
extensive procedural history of this case dating back several
years, the Court declines to dismiss the instant case and will
instead enter a stay pending a decision by the PSC.
For these reasons, the Court denies the Plaintiff's Motion for
Leave to File Surreply. The Defendant's Motion to Dismiss will be
treated as a motion to stay and will be granted.
A full-text copy of the Court's Memorandum Opinion is available at
https://tinyurl.com/2zzeaa4v from PacerMonitor.com.
MERRICK BANK: Capozzi Sues Over Failure to Safeguard PII
--------------------------------------------------------
Mark Capozzi, individually, and on behalf of all others similarly
situated v. MERRICK BANK, Case No. 2:24-cv-05420 (E.D. Pa., Oct. 9,
2024), is brought against Defendant for its failure to properly
secure and safeguard Plaintiff's and other similarly situated
customers' ("Class Members," as defined infra) sensitive personally
identifiable information, including their names, Social Security
numbers, dates of birth, and account information ("PII").
By obtaining, collecting, using, and deriving a benefit from the
PII of Plaintiff and Class Members, Defendant assumed legal and
equitable duties to those individuals to protect and safeguard that
information from unauthorized access and intrusion.
On April 26, 2024, FBCS announced that certain systems in its
network had been subject to unauthorized access between February 14
and February 26, 2024, and the unauthorized actor had the ability
to view or acquire certain information on the FBCS network during
the period of access ("Data Breach"). In a filing with the Office
of the Maine Attorney General, FBCS confirms that the PII of
4,253,394 individuals was exposed by the Data Breach. On September
30, 2024, Defendant began sending out notice letters to its
customers, stating that Merrick Bank's debt collection agency,
FBCS, had experienced a data breach, which it discovered on
February 26, 2024.
The Defendant failed to adequately protect Plaintiff's and Class
Members' PII––and failed to even encrypt or redact this highly
sensitive information. This unencrypted, unredacted PII was
compromised due to Defendant's negligent and/or careless acts and
omissions and its utter failure to protect its customers' sensitive
data. Hackers targeted and obtained Plaintiff's and Class Members'
PII because of its value in exploiting and stealing the identities
of Plaintiff and Class Members. The present and continuing risk to
victims of the Data Breach will remain for their respective
lifetimes.
The Defendant also failed to adequately protect Plaintiff's and
Class Members' PII by virtue of its failure to vet its
vendors—here, FBCS and ensure they were submitting PII to an
entity with adequate data security practices and that its vendors
were deleting or archiving inactive PII data and files, says the
complaint.
The Plaintiff provided his PII to Defendant as a condition for
using a credit card.
Merrick Bank provides over six billion dollars in credit to over
three million cardholders across the United States.[BN]
The Plaintiff is represented by:
Andrew W. Ferich, Esq.
AHDOOT & WOLFSON, PC
201 King of Prussia Road, Suite 650
Radnor, PA 19087
Phone: 310-474-9111
Fax: 310-474-8585
Email: aferich@ahdootwolfson.com
- and -
Jeff Ostrow, Esq.
KOPELOWITZ OSTROW P.A.
One West Las Olas Blvd., Suite 500
Fort Lauderdale, FL 33301
Phone: (954) 332-4200
Email: ostrow@kolawyers.com
- and -
Charles E. Schaffer, Esq.
LEVIN SEDRAN & BERMAN, LLP
510 Walnut Street, Suite 500
Philadelphia, PA 19106
Phone: 215-592-1500
Email: cschaffer@lfsblaw.com
- and -
John A. Yanchunis, Esq.
MORGAN & MORGAN COMPLEX LITIGATION GROUP
201 North Franklin Street 7th Floor
Tampa, FL 33602
Phone: (813) 223-5505
Email: JYanchunis@forthepeople.com
META PLATFORMS: EU Court Rejects Bid to Block GBP2.3BB Class Action
-------------------------------------------------------------------
Decision Marketing reports that Meta's week has gone from bad to
worse; just days after the EU's top court ruled it must limit the
data it uses in advertising, Britain's antitrust tribunal has
rejected a second attempt to block a GBP2.3bn class action accusing
the Facebook owner of exploiting its users' data.
The class action is being brought on behalf of 45 million Facebook
users by legal academic Dr Liza Lovdahl Gormsen, who claims that
"Facebook has struck an unfair bargain with its users" over
collection of their data on their activities outside of the main
site.
This, Dr Lovdahl Gormsen maintains, means users are forced to give
up this information as a condition of accessing the Facebook
platform, in a "take-it-or-leave-it" offer.
Her original claim was refused in 2023, but a revised version was
given the green light in February by the Competition Appeal
Tribunal.
However, Meta, which insists the claim "remains entirely without
merit" has now launched two unsuccessful bids to block the case.
Earlier this week, the court ruled that the "complex" issues should
be determined at trial.
The tech giant has yet comment on the decision but maintains that
it is "committed to giving people meaningful control" of the
information they share on its platforms and to "invest heavily to
create tools that allow them to do so".
Earlier this week, Austrian privacy activist and lawyer Max Schrems
scored yet another victory in his long-running battle with Meta
over the use of personal data for advertising.
The European Court of Justice ruling will have widespread
consequences for the entire online ad industry by forcing all
companies to limit the use of data for advertising purposes, as
well as prevent them from using publicly available personal data
beyond the originally intended purposes for publication.
Schrems lawyer Katharina Raabe-Stuppnig said at the time: "Meta has
basically been building a huge data pool on users for 20 years now,
and it is growing every day. However, EU law requires 'data
minimisation'.
"Following this ruling only a small part of Meta's data pool will
be allowed to be used for advertising -- even when users consent to
ads. This ruling also applies to any other online advertisement
company, that does not have stringent data deletion practices."
[GN]
NATERA INC: Faces Petersen Class Suit Over PGT-A Deceptive Ads
--------------------------------------------------------------
SHANNON PETERSEN and ERIN VEDRODE, individually and on behalf of
all others similarly situated v. NATERA, INC., Case No.
3:24-cv-07062 (N.D. Cal., Oct. 8, 2024) seeks to recover economic
losses suffered by the Plaintiffs and Class members as a result of
the false, deceptive, unfair, and misleading advertising,
marketing, and promotion of Defendant's preimplantation genetic
testing for aneuploidy ("PGT-A" or "PGT-A testing").
The Plaintiffs and Class members each spent thousands of dollars
for PGT-A based on Defendant's material misrepresentations and
omissions. They file this lawsuit to remedy Defendant's unfair and
deceptive business practices arising from its marketing and sale of
PGT-A testing as a proven, accurate, and reliable method to
decrease the chance of miscarriage and increase the chance of
giving birth to a healthy baby when science does not support this.
The Plaintiffs and Class members would not have purchased PGT-A
testing from the Defendant had they known the truth, and seek all
available damages, equitable relief, and other remedies from the
Defendant.
Plaintiff Petersen is a resident of Petaluma, California and
received fertility treatment in Greenbrae, California.
Plaintiff Vedrode is a resident of Saginaw, Michigan and received
fertility treatment fertility in Ann Arbor, Michigan.
Natera is a clinical genetic testing company that specializes in
non-invasive, cell-free DNA (cfDNA) testing technology.[BN]
The Plaintiffs are represented by:
Sophia M. Rios, Esq.
Shanon J. Carson, Esq.
BERGER MONTAGUE PC
8241 La Mesa Blvd., Suite A
La Mesa, CA 91942
Telephone: (619) 489-0300
E-mail: srios@bm.net
scarson@bm.net
- and -
Allison S. Freeman, Esq.
CONSTABLE LAW, P.A.
139 6th Avenue S
Safety Harbor, FL 34695
Telephone: (727) 797-0100
E-mail: allison@constable-law.com
- and -
Paula S. Bliss, Esq.
JUSTICE LAW COLLABORATIVE LLC
210 Washington St.
No. Easton, MA 02356
Telephone: (508) 230-2700
E-mail: paula@justicelc.com
NEW HAMPSHIRE: Partly Wins Bid to Nix 5 Plaintiffs From G.K. Suit
-----------------------------------------------------------------
Judge Paul J. Barbadoro of the U.S. District Court for the District
of New Hampshire grants in part and denies in part the Defendants'
motion to dismiss five Plaintiffs from the lawsuit styled G.K., by
their next friend, Katherine Cooper, et al. v. Christopher Sununu,
Governor of New Hampshire, et al., Case No. 1:21-cv-00004-PB
(D.N.H.).
Six adolescents within the custody of the New Hampshire Division of
Children, Youth, and Families (DCYF) filed a putative class action
complaint seeking injunctive and declaratory relief for alleged
violations of the Americans with Disabilities Act (ADA), the
Rehabilitation Act, and the Adoption Assistance and Child Welfare
Act (CWA). Since filing the complaint, five of the six named
plaintiffs have exited DCYF custody.
The Defendants move to dismiss the five Plaintiffs no longer in
DCYF custody from the lawsuit, arguing that their claims are now
moot. The Defendants further move to dismiss the remaining
Plaintiff's CWA claim for lack of statutory standing. For reasons
set forth in this Memorandum and Order, the Court granted in part
and denied in part the Defendants' motion.
In January 2021, four adolescent foster children, G.K., C.I., T.L.,
and R.K., filed a complaint on behalf of themselves and a putative
class of similarly situated individuals seeking declaratory and
injunctive relief for alleged deficiencies in New Hampshire's
operation of its foster care program. The Named Plaintiffs are each
pursuing this action pseudonymously. In an effort to further
protect the Plaintiffs' identities, the parties refer to them using
gender-neutral pronouns. Judge Barbadoro follows suit here.
Count I of the Plaintiffs' initial complaint asserted that the
Defendants are violating the due process clause of the Fourteenth
Amendment by failing to provide adolescent foster children (that
is, foster children between 14 and 17 years of age) with the right
to counsel at certain proceedings. Count II asserted that the
Defendants are violating the CWA by failing to ensure that
adolescent foster children receive legally adequate case plans.
Finally, Counts III through VI alleged that the Defendants are
violating the ADA and the Rehabilitation Act by systematically
placing and retaining adolescent foster children with mental and
behavioral disabilities in congregate care facilities, even where
those children could be appropriately placed in community-based
settings.
The Defendants moved to dismiss each of the Plaintiffs' claims
under Federal Rule of Civil Procedure 12(b)(6). Judge Barbadoro
granted the Defendants' motion with regards to the Plaintiffs' due
process claim but declined to dismiss the remaining claims. As
relevant here, Judge Barbadoro concluded that, although the CWA
does not explicitly provide for a private right of action, it
conferred an individual right to a case plan that could be enforced
through a cause of action under 42 U.S.C. Section 1983.
A few months later, in November 2021, T.L. was returned to their
parent's custody. Then, in May 2022, C.I. "aged out" of DCYF
custody upon turning 18 years old. The Defendants moved to dismiss
T.L. and C.I. from the lawsuit, arguing that their claims were
moot. While that motion was pending, R.K. was returned to their
parent's custody, leaving G.K. as the only named Plaintiff still
within DCYF custody.
Judge Barbadoro ultimately denied the Defendants' motion to dismiss
without prejudice based on my conclusion that it was unnecessary to
decide given that at least one Named Plaintiff remained in DCYF
custody and could advance live claims on behalf of the class.
In March 2023, the Plaintiffs moved to certify a class of certain
adolescent foster children with mental health disabilities. Shortly
after that motion became ripe, the parties agreed to stay the
litigation in order to pursue mediation. In January 2024, while the
stay was still in place, G.K. aged out of DCYF custody. The
Plaintiffs filed a motion to amend their complaint to add a new
Named Plaintiff still within DCYF custody, D.M., which the Court
granted.
The parties were ultimately unable to reach a settlement agreement,
and mediation came to a close in April 2024. A few weeks later, the
Plaintiffs moved to supplement the expert reports they had
submitted in support of their motion for class certification. Judge
Barbadoro granted the Plaintiffs' motion but provided the
Defendants with the opportunity to respond to the Plaintiffs'
supplemental reports through additional discovery and briefing.
The Defendants were given until August 2024 to submit their
supplemental briefing, which made it impossible for Judge Barbadoro
to rule on the Plaintiffs' motion for class certification before
D.M. aged out of DCYF custody in July 2024. Consequently, Judge
Barbadoro granted the Plaintiffs' request to amend their complaint
to add a sixth Named Plaintiff, B.D., who has remained in DCYF
custody.
The parties have submitted their supplemental briefing, and the
Plaintiffs' motion for class certification is now ripe for
resolution. The Defendants have renewed their motion to dismiss
those Named Plaintiffs, who have exited DCYF custody and, further,
move to dismiss B.D.'s CWA claim.
The Defendants assert that G.K., C.I., T.L., R.K., and D.M. must be
dismissed from the action because their claims for prospective
relief are now moot. The Defendants further assert that B.D. lacks
statutory standing to pursue their CWA claim because they do not
receive federally-reimbursed foster care maintenance payments.
The Plaintiffs contend that none of their claims are moot under the
so-called inherently transitory exception to mootness. The
Plaintiffs further argue that B.D. has standing to advance their
CWA claim, even if they do not receive foster care maintenance
payments, because the CWA's case planning requirements apply to all
foster children.
B.D.'s CWA claims are brought pursuant to Section 1983. B.D.'s CWA
claim is premised on the assertion that the Defendants fail to
provide adolescent foster children with timely, up-to-date case
plans that meet these substantive requirements. The Defendants
assert, among other things, that B.D. lacks statutory standing to
bring this claim because B.D. does not receive foster care
maintenance payments under Title IV-E.
The Defendants' argument, however, entirely ignores the fact that
the Plaintiffs' CWA claim is also based on the case planning
requirements of Section 622, Judge Barbadoro says. While the
Defendants may be correct that Section 671 only applies to a
particular subset of foster children, Judge Barbadoro opines that
Section 622 expressly applies to all foster children. And, although
Section 622 does not explicitly reference a "case plan" in the
manner that Section 671 does, it clearly imposes the same case
planning requirements.
Thus, Judge Barbadoro holds, all foster children--including
B.D.--have an enforceable right to a case plan under Section 622.
To the extent that some children are also provided with case
planning rights under Section 671, those rights are merely
duplicative to those already conferred by Section 622. Accordingly,
B.D. enjoys the same case planning rights as every other member of
the putative class, regardless of whether Section 671 applies to
B.D.
The Defendants do not dispute that Section 622 provides all foster
children with the same case planning rights as Section 671; indeed,
the Defendants have expressly disavowed making any such argument.
Instead, the Defendants' argument appears to be limited to the
assertion that, even if B.D. has standing to enforce the case
planning requirements of Section 622, they lack standing to enforce
the case planning requirements of Section 671.
Judge Barbadoro opines that the Defendants' argument is flawed for
several reasons. As an initial matter, it fails to justify the
relief they seek. That B.D.'s case planning rights derive from one
section of the CWA but not another provides no basis for dismissing
B.D.'s claim in its entirety. More fundamentally, the Defendants'
argument ignores the fact that, although the substantive rights
B.D. seeks to enforce stem from the CWA, their cause of action
arises under Section 1983.
Accordingly, the question is not whether B.D. can state a claim
under each and every provision of the CWA, but whether they can
state a claim under Section 1983. Because Section 622 and Section
671 confer the exact same case planning rights, the fact that only
one of the provisions applies to B.D. has no bearing on their
ability to enforce those rights through a cause of action under
Section 1983.
To the extent the Defendants argue that B.D. cannot represent a
putative class that includes some members, who may wish to also
invoke the case planning requirements of Section 671, Judge
Barbadoro points out that their argument is best addressed at class
certification. For now, it is sufficient to conclude that B.D. has
an enforceable right to a case plan, and therefore, has statutory
standing to pursue their CWA claim.
Judge Barbadoro also finds, among other things, that the Plaintiffs
have a strong argument that their claims are inherently transitory.
As explained in Judge Barbadoro's order on the Plaintiffs' motion
for class certification, the Defendants are engaging in various
allegedly unlawful practices that apply to the class as a whole.
Accordingly, there is little doubt that at least some class members
will retain a live claim at every stage of the litigation.
Regardless, Judge Barbadoro needs not determine whether the
Plaintiffs' claims fit within the inherently transitory exception.
The exception operates to keep a class action viable prior to
certification so that class claims do not become unreviewable
because of friction in the judicial machinery. But here, because
B.D. can advance each of the Plaintiffs' claims on behalf of the
class, the class claims remain viable regardless of whether the
inherently transitory exception applies, Judge Barbadoro explains.
Because there is no need to invoke the inherently transitory
exception, Judge Barbadoro declines to consider whether it applies
and dismisses G.K., C.I., T.L., R.K., and D.M. from the case.
For these reasons, the Court rules that the Defendants' motion to
dismiss is granted in part and denied in part, and the Defendants'
motion to disqualify the Plaintiffs' next friends is denied. In
light of this conclusion, the Defendants' motion to disqualify the
next friends of C.I., T.L., and R.K. is denied as moot.
B.D. may remain as a plaintiff and advance each of the putative
class claims, but G.K., C.I., T.L., R.K., and D.M. are dismissed
from the action. The case caption will be amended, accordingly.
A full-text copy of the Court's Memorandum and Order is available
at https://tinyurl.com/n3w5maxh from PacerMonitor.com.
NEW HAMPSHIRE: Teen Foster Children Class Certified in B.D. Suit
----------------------------------------------------------------
Judge Paul J. Barbadoro of the U.S. District Court for the District
of New Hampshire grants the Plaintiff's motion for class
certification in the lawsuit titled B.D., by their next friend,
Christine Wellington v. Christopher Sununu, Governor of New
Hampshire, et al., Case No. 1:21-cv-00004-PB (D.N.H.).
The Named Plaintiff in this putative class action is seeking to
represent a class of adolescent foster children with mental
disabilities, who are in the custody of the New Hampshire Division
of Children, Youth, and Families (DCYF) and either have been
unnecessarily placed in a congregate care setting or are at risk of
being unnecessarily placed in congregate care.
DCYF, a division of New Hampshire's Department of Health and Human
Services (DHHS), oversees the state's child welfare services,
including its child protection services. Children, who have been
removed from their homes as a result of abuse or neglect, may be
placed under the protective supervision or legal custody of DCYF.
DCYF is responsible for arranging placements and supportive
services for children under its care, as well as developing a case
plan to guide each child's time in foster care.
The Plaintiff's primary claims are that these congregate care
placements violate the Americans with Disabilities Act (ADA) and
the Rehabilitation Act. The Plaintiff also asserts that the
Defendants are violating the Adoption Assistance and Child Welfare
Act (CWA) by failing to provide class members with adequate case
plans.
As a federally funded program, New Hampshire's foster care program
must comply with a number of federal statutes, including Title II
of the Americans with Disabilities Act (ADA), section 504 of the
Rehabilitation Act, and the Adoption Assistance and Child Welfare
Act (CWA). The ADA and the Rehabilitation Act each prohibit public
entities from discriminating on the basis of disability in the
administration of certain programs.
Named Plaintiff B.D. is a 15-year-old foster child, who suffers
from post-traumatic stress disorder,
attention-deficit/hyperactivity disorder, and depression. B.D. was
removed from their parent's home at the age of 13 and placed in the
legal custody of DCYF after a finding of parental neglect. B.D.
spent three days in an emergency foster home immediately following
their removal but was then moved to a congregate care facility,
where they have remained ever since.
Plaintiff B.D. has expressed frustration with their placement in
congregate care and would prefer to live with a foster family.
Based on the opinion of their child psychology expert witness, B.D.
contends that they could remain in the community if provided with
an appropriate placement and accompanying supports.
Although B.D. was provided with a case plan shortly after their
removal from the home, Judge Barbadoro notes, it was lacking
several required components, including the Youth Information Sheet
that details B.D.'s family, medical, and educational background.
B.D. received a transition plan after turning 14, but the plan is
formulaic, lacking any meaningful description of B.D.'s individual
needs and goals and fails to outline a concrete plan for achieving
the few goals that are described. Neither the case plan nor the
transition plan have been updated over the course of B.D.'s nearly
two years in DCYF custody.
B.D., acting through their next friend, filed a complaint on behalf
of themselves and a putative class of similarly situated
individuals challenging perceived deficiencies in New Hampshire's
operation of its foster care program.
The putative class claims fall into two categories. First, B.D.
alleges that the Defendants are violating the ADA's integration
mandate and methods of administration regulation by systematically
placing and retaining adolescent foster children (that is, foster
children between 14 and 17 years of age) with mental and behavioral
disabilities in congregate care facilities, even where those
children could be appropriately placed in community-based
settings.
Second, B.D. alleges that the Defendants violate the CWA by failing
to ensure that adolescent foster children receive required case
planning services, including the provision of timely, up-to-date
case and transition plans that meet the substantive requirements
outlined in the statute.
B.D. filed a motion for class certification pursuant to Federal
Rule of Civil Procedure 23(b)(2), seeking to certify a class of:
All children, ages 14 through 17, who: (1) are, or will be, in the
legal custody or under the protective supervision of DCYF under
N.H. Rev. Stat. Ann. Section 169-C:3 (XVII) and/or (XXV); (2) have
a mental impairment that substantially limits a major life
activity, or have a record of such an impairment; and (3) currently
are, or are at serious risk of being, unnecessarily placed in
congregate care settings.
The Defendants object, arguing that neither B.D.'s disability
discrimination claims nor their case planning claim are appropriate
for class resolution.
B.D. argues that their claims are appropriate for class treatment
because they raise common questions regarding the legal sufficiency
of the Defendants' administration of its foster care system. The
Defendants disagree and assert that B.D.'s claims turn on
individualized considerations that cannot be resolved or remediated
on a class-wide basis. The Defendants further take issue with the
proposed class definition and argue that B.D. has failed to
establish the required elements of numerosity, typicality, and
adequacy.
Judge Barbadoro finds that the Plaintiff satisfies each of the
prerequisites of Rule 23(a) and Rule 23(b)(2) of the Federal Rules
of Civil Procedure.
For these reasons, the Court grants B.D.'s motion for class
certification. The Court certifies a class of:
All children, ages 14 through 17, who:
(1) are, or will be, in the legal custody or under the
protective supervision of DCYF under N.H. Rev. Stat.
Ann. Section 169-C:3 (XVII) and/or (XXV);
(2) have a mental impairment that substantially limits a
major life activity, or have a record of such an
impairment; and
(3) currently are, or are at serious risk of being,
unnecessarily placed in congregate care settings.
B.D., by and through their next friend, Christine Wellington, is
appointed as class representative. B.D.'s counsel of record is
appointed as class counsel pursuant to Rule 23(g).
A full-text copy of the Court's Memorandum and Order is available
at https://tinyurl.com/4rdt32vf from PacerMonitor.com.
NEW YORK UNIVERSITY: Wins Bid to Strike Sacerdote's Jury Demand
---------------------------------------------------------------
In the lawsuit styled DR. ALAN SACERDOTE, DR. HERBERT SAMUELS, MARK
CRISPIN MILLER, MARIE E. MONACO, DR. SHULAMITH LALA STRAUSSNER, AND
JAMES B. BROWN, individually and as representatives of a class of
participants and beneficiaries on behalf of the NYU School of
Medicine Retirement Plan for Members of the Faculty, Professional
Research Staff and Administration and the New York University
Retirement Plan for Members of the Faculty, Professional Research
Staff and Administration, Plaintiffs v. NEW YORK UNIVERSITY,
RETIREMENT PLAN COMMITTEE, MARGARET MEAGHER, and NANCY SANCHEZ,
Defendants, Case No. 1:16-cv-06284-AT-VF (S.D.N.Y.), Judge Analisa
Torres of the U.S. District Court for the Southern District of New
York grants the Defendants' motion to strike the Plaintiffs' jury
demand.
The Plaintiffs, New York University ("NYU") professors and
participants in NYU's retirement plans, allege that the Defendants,
NYU, NYU's Retirement Plan Committee (the "Committee"), Margaret
Meagher, and Nancy Sanchez, violated their fiduciary duties under
the Employee Retirement Income Security Act ("ERISA").
The Plaintiffs allege that the Defendants breached their fiduciary
duties of loyalty and prudence to (1) the NYU Retirement Plan for
Members of the Faculty, Professional Research Staff and
Administration, and (2) the NYU School of Medicine Retirement Plan
for Members of the Faculty, Professional Research Staff and
Administration (together, the "Plans") by allowing the Plans to pay
excessive administrative fees, maintaining an inefficient
multi-recordkeeper structure, including in the Plans higher-cost
retail share classes for which an identical lower-cost version of
the same fund was available, and retaining investment options in
the Plans despite a sustained track record of underperformance.
The Defendants now move to strike the jury demand contained in the
Plaintiffs' Second Amended Complaint ("SAC").
The Plaintiffs commenced this class action in 2016 against NYU.
According to the Plaintiffs, NYU breached its duty under ERISA to
ensure that Plan expenses are reasonable and that the Plans'
investments are prudent. In November 2016, after the Defendants
moved to dismiss the action, the Plaintiffs amended their complaint
(First Amended Complaint ("FAC").
The FAC encompassed seven claims; as relevant here, the Plaintiffs
alleged that NYU breached its fiduciary duty by allowing the Plans
to pay excessive administrative fees for recordkeeping services
("Count III") and by failing to prudently select investment options
for the Plans, resulting in the inclusion of funds with high
expenses and poor performance relative to other investment options
that were readily available to the Plans ("Count V"). NYU again
moved to dismiss.
The Honorable Katherine B. Forrest was initially assigned to the
matter, and in August 2017, she granted in part and denied in part
NYU's motion. Judge Forrest granted the motion with respect to
Counts I, II, IV, VI, and VII and denied it with respect to Count
III. As to Count V, Judge Forrest declined to dismiss the portions
of the claim alleging that NYU imprudently selected for the plans
(1) two particular funds with "high fees and poor performance" and
(2) actively managed funds--i.e., more expensive funds--that did
not have a realistic expectation of higher returns, but she
dismissed the portions of the claim alleging that NYU did not act
prudently when it (1) included retail class shares of mutual funds
in the Plans (the "Share Class Claim"), (2) included investment
options with "unnecessary layers of fees" in the Plans, and (3)
failed to consolidate the Plans' offerings into a "core investment
lineup."
In October 2017, Judge Forrest denied reconsideration, and she also
denied the Plaintiffs' motion to amend their complaint to add
additional Defendants.
Two months later, NYU moved to strike the Plaintiffs' jury demand.
After the Plaintiffs failed to oppose, Judge Forrest granted the
motion. In April 2018, Judge Forrest held an eight-day bench trial,
and three months later, she issued a decision finding in favor of
NYU on all remaining claims (Sacerdote v. N.Y. Univ., 328 F. Supp.
3d 273 (S.D.N.Y. 2018)). The Plaintiffs appealed, and in August
2021, the Second Circuit affirmed the judgment in part, vacated it
in part, and remanded the case for further proceedings (Sacerdote
v. N.Y. Univ., 9 F.4th 95, 102 (2d Cir. 2021)).
As relevant here, the Second Circuit held that Judge Forrest erred
when she dismissed the Share Class Claim and denied the Plaintiffs
leave to amend their complaint to add the individual Committee
members as named defendants, but the court upheld Judge Forrest's
decision to strike the Plaintiffs' jury demand.
On remand, the Plaintiffs amended their complaint, adding three new
Defendants: the Committee and two individual Committee members,
Margaret Meagher and Nancy Sanchez. The SAC reasserts Count III
against Meagher and Sanchez, the Share Class Claim against all
Defendants, and a failure-to-monitor claim ("Count VII") against
NYU. The SAC also includes a demand for a jury trial.
Now before the Court is the Defendants' motion to strike the
Plaintiffs' jury demand, which argues that the Plaintiffs waived
their right to a jury trial and that, regardless, the Plaintiffs
have no right to a jury trial under ERISA or the Constitution.
The Defendants assert that, because the SAC adds claims that are
substantially similar to those raised in the FAC, and because the
Plaintiffs did not oppose NYU's motion to strike the jury demand in
the Plaintiffs' FAC, and the Second Circuit subsequently determined
that the Plaintiffs had indeed waived their right to a jury, the
Court should grant the Defendants' motion to strike.
The Court agrees with the Defendants. Judge Torres opines that the
Plaintiffs' addition of three Defendants and their reassertion of
the Share Class Claim in the SAC do not create a "new issue"
suitable for a jury. Although the Share Class Claim had been
dismissed by the time that the Plaintiffs waived their jury demand,
it does not add any new issues that would revive their right to a
jury trial.
The Court will not exercise its discretion under Federal Rule of
Civil Procedure 39 to order a jury trial. Judge Torres explains
that the Second Circuit has imposed limits on this discretion,
explaining that inadvertence in failing to make a timely jury
demand does not warrant a favorable exercise of discretion under
Rule 39(b).
Judge Torres points out that the Plaintiffs do not suggest that
anything other than inadvertence caused them to waive their right
to a jury. And, none of the other relevant factors weigh in their
favor.
For these reasons, the Court grants the Defendants' motion to
strike the Plaintiffs' jury demand. The Clerk of Court is directed
to terminate the motion at ECF No. 481.
A full-text copy of the Court's Order dated Sept. 18, 2024, is
available at https://tinyurl.com/4p87neh7 from PacerMonitor.com.
NEXSTAR MEDIA: Carolus Files Suit in Cal. Super. Ct.
----------------------------------------------------
A class action lawsuit has been filed against Nexstar Media Inc.,
et al. The case is styled as Brian Carolus, Saber Khamooshi, Ryan
Wu, individually and on behalf of a class of similarly situated v.
Nexstar Media Inc., Does 1 through 100, inclusive, Case No.
CGC24618799 (Cal. Super. Ct., San Francisco Cty., Oct. 8, 2024).
The case type is stated as "Other Non-Exempt Complaints."
Nexstar Media Inc. -- https://www.nexstar.tv/ -- owns and operates
television stations.[BN]
The Plaintiffs are represented by:
Eric Andrew Grover, Esq.
KELLER GROVER LLP
1965 Market St.
San Francisco, CA 94103
Phone: 415-543-1305
Email: eagrover@kellergrover.com
NORFOLK SOUTHERN: Sheely Appeals $600M Train Derailment Settlement
------------------------------------------------------------------
REVEREND JOSEPH SHEELY is taking an appeal from a court order
granting the Plaintiffs' motion for final approval of the
settlement in In re: East Palestine Train Derailment, Case No.
4:23-cv-00242, in the U.S. District Court for the Northern District
of Ohio.
This is a class action on behalf of the Plaintiffs and other
persons adversely affected by a train derailment and chemical spill
(vinyl chloride) which occurred on February 3, 2023, in or near
East Palestine, Ohio, which was proximately caused by the
negligence of the Defendant, Norfolk Southern Railway Company
and/or the Defendant, Norfolk Southern Corporation.
On Sept. 6, 2024, the Plaintiffs filed a motion for final approval
of settlement.
On September 25, 2024, Judge Benita Pearson approved a $600 million
settlement between Norfolk Southern and people who live near East
Palestine, where the company's train derailed and contaminated the
community. Judge Pearson ruled that the settlement of the class
action lawsuit was fair, reasonable and adequate.
Objecting Settlement Class Member Rev. Joseph Sheely appealed. The
appellate case is captioned In re: East Palestine Train Derailment,
Case No. 24-3852, in the United States Court of Appeals for the
Sixth Circuit, filed on October 1, 2024. [BN]
Interested Party-Appellant REVEREND JOSEPH SHEELY is represented
by:
David M. Graham, Esq.
1080 Montgomery Avenue, NE
Cleveland, TN 37311
Telephone: (904) 567-6529
Plaintiffs-Appellees HAROLD R. FEEZLE, et al., on behalf of
themselves and all others similarly situated, are represented by:
Adam J. Gomez, Esq.
123 South Justison Street
Wilmington, DE 19801
Telephone: (302) 622-7107
- and –
David C. Harman, Esq.
BURG SIMPSON ELDREDGE HERSH JARDINE
201 E. Fifth Street, Suite 1340
Cincinnati, OH 45202
Telephone: (513) 852-5600
- and -
David M. Matejczyk, Esq.
5045 Park Avenue, W.
Seville, OH 44273
Telephone: (330) 769-0911
Defendants-Appellees NORFOLK SOUTHERN RAILWAY COMPANY, et al. are
represented by:
Alan Evan Schoenfeld, Esq.
WILMER HALE
250 Greenwich Street
7 World Trade Center
New York, NY 10007
Telephone: (212) 230-8800
NORTHROP GRUMMAN: Court Stays Brzozowski Class Action
------------------------------------------------------
In the class action lawsuit captioned as Brzozowski, et al., v.
Northrop Grumman Corporation, et al., Case No. 2:24-cv-05285
(E.D.N.Y., Filed July 29, 2024), the Hon. Judge Gary R. Brown
entered an order staying case and noting that:
"the related individual actions are also before Judge Brown and
have been stayed pending resolution of the motion for class
certification in Romano, consistent with Judge Brown's prior
Orders."
The nature of suit states Real Property -- Tort Product Liability.
Northrop is an American multinational aerospace and defense
company.[CC]
NW NATURAL: Faces Deceptive Marketing Class Action Lawsuit
----------------------------------------------------------
Jenna Deml, writing for KOIN, reports that Oregon's largest natural
gas supplier is facing another legal challenge just days after
being accused of spreading misinformation about climate change in a
separate suit by Multnomah County.
The new class action lawsuit, filed Wednesday, October 9, on behalf
of customers who enrolled in NW Natural's Smart Energy Program,
alleges the customers wanting to make "green" choices were misled
by the company's marketing team. The utility company advertises the
program's use of biogas as a way to offset gas emissions.
However, the suit further claims the program is actually sending
the offset payments to industrial dairy farms, leading to increased
emissions.
Additionally, the suit alleges NW Natural claimed the same
environmental benefits from the emissions of their Smart Energy
customers, in a process known as "double counting." The suit states
this was a way for the company to claim the investments as part of
their state mandated decarbonization program.
As a result, the suit is accusing the utility company for breach of
contract and violating Oregon law on unfair and deceptive
marketing.
"There is a vast chasm between NW Natural's representations and
reality," said Danny Noonan, a Climate and Energy Strategist with
Breach Collective. "NW Natural has spent years greenwashing its
operations to prevent needed regulation and is finally being called
to account by its own customers."
The suit also requests a jury trial to be determined at a later
date.
All of this comes after Multnomah County named NW Natural a suit
alleging the company is responsible for a "substantial portion" of
greenhouse gas pollution in Oregon. The county claims the company
spread misinformation about climate change and blames them for the
2021 heat dome that killed dozens of people.
When reached for comment, NW Natural released this statement:
"We are aware of reports that a class action complaint against NW
Natural and NW Natural Holdings has been filed in Multnomah County
Circuit Court. Neither entity has been served with a complaint and
we cannot comment in detail. However, the company takes these
matters seriously and intends to vigorously defend itself should
this matter come to court." [GN]
NYC HARLEM: Class Settlement in Medina Suit Gets Final Nod
----------------------------------------------------------
In the class action lawsuit captioned as MARISOL MEDINA,
individually and on behalf of all others similarly situated, v. NYC
HARLEM FOODS INC., et al., Case No. 1:21-cv-01321-VSB (S.D.N.Y.),
the Hon. Judge Vernon Broderick entered an order granting final
approval of class and settlement, granting class counsel's motion
for attorneys' fees and granting plaintiff's motion for service
payments:
-- The Court confirms as final the appointment of Marisol Medina
as
class representative.
-- The Court likewise confirms as final the appointment of Bouklas
Gaylord LLP as Class Counsel.
-- The Court approves the Parties' retention of Martom Solutions
LLC
as Settlement Claims Administrator.
-- The Court specifically finds that the settlement is rationally
related to the strength of the claims in this case given the
risk,
expense, complexity, and duration of further litigation. The
Court
also finds that the Agreement is the result of arms-length
negotiations between experienced counsel representing the
interests of the Parties, after thorough factual and legal
investigation.
-- The Court grants to Class Counsel an award of attorneys' fees
and
costs of $434,192.15. Such award is reasonable in light of the
effort expended and risks undertaken by Class Counsel, and the
results of such efforts including the ultimate recovery
obtained.
-- Service payment of $25,000 to Marisol Medina is approved.
The Defendants include BRONX 163 FOODS INC., BRONX MARKET FOODS
INC, NYC 143 FOODS INC, NYC 96 FOODS INC, NYC 89 FOODS INC, NYC
PARK FOODS INC, NYC 125 FOODS INC, NYC 159 FOODS INC, NYC 155 FOODS
INC, SUNNYSIDE BK QSR INC, NYC 116 BK QSR INC, NYC 116 FOODS INC,
NYC 121 FOODS INC, NYC 114 FOODS INC, BRONX PROSPECT FOODS INC.,
NYC 145 FOODS INC., NYC LENOX FOODS INC., NYC 178 FOODS INC., BRONX
138 FOODS INC., RV EASTCHESTER FOODS INC., NYC 148 FOODS INC., NYC
LEXINGTON FOODS INC., NYC 161 FOODS INC., BRONX 170 FOODS INC.,
ANDHRA FOODS INC., SOMYA FOODS, INC., RVN FOODS INC., and SRINIVASA
RAO TUMMALAPENTA, individually.
A copy of the Court's order dated Oct. 7, 2024, is available from
PacerMonitor.com at https://urlcurt.com/u?l=TOUGch at no extra
charge.[CC]
NYC PUBLIC SCHOOLS: C.S. Sues Over Failure to Provide Equal Access
------------------------------------------------------------------
C.S., by her parent, K.S.; M.T., by her parent, N.T.; H.B., by his
parent, V.B.; C.I.R., by her parent, C.R.; on behalf of themselves
and all others similarly situated v. NEW YORK CITY PUBLIC SCHOOLS,
and DAVID C. BANKS, as Chancellor of New York City Public Schools,
Case No. 1:24-cv-07600 (S.D.N.Y., Oct. 8, 2024), is brought to
challenge Defendants' systematic failure to provide equal access to
education for students with disabilities who are chronically absent
or otherwise suffering from school avoidance ("School Avoidance"),
in violation of rights guaranteed by the Individuals with
Disabilities in Education Act ("IDEA"), the Americans with
Disabilities Act ("ADA"), Section 504 of the Rehabilitation Act
("Section 504"), the New York State Constitution, and New York
City's Human Rights Law ("NYCHRL").
The Plaintiffs are among the approximately 200,000 New York City
students who are or should be eligible for services, modifications,
and accommodations via an Individualized Education Plan ("IEP") or
a Section 504 Accommodation Plan ("504 Plan") because they have
disabilities that affect access to education. The Plaintiffs are
also among the growing number of students whose disabilities cause
them to avoid approaching, entering, and/or remaining in school,
such that they are deprived of the benefits of public education.
But a student's School Avoidance does not relieve Defendants of the
obligation to provide that student with the free appropriate public
education ("FAPE") to which they are entitled by law. When a
student who is in school finds it challenging to enter or remain in
their classroom, the school cannot simply ignore the behavior.
Instead, the school is required by law to conduct evaluations to
determine whether the student's behavior is related to a
disability. Students who, like Plaintiffs, avoid attending school
altogether are entitled to the same assistance. Indeed, these
students frequently require even more support than students who
have similar challenges inside school buildings.
The New York City Public School ("NYCPS") has no systematic policy
or procedures in place to ensure that a student suffering from
School Avoidance receive a FAPE. Although NYCPS's Chancellor's
Regulations provide for certain processes to address chronic
absenteeism, those processes are rarely followed, and in any event,
are wholly insufficient to address School Avoidance.
The Defendants' failure to develop and implement a policy to
address School Avoidance is an abrogation of their duty to ensure
that students with disabilities receive equal access to education
and requires the intervention of this Court, says the complaint.
The Plaintiffs are minor children who are public school students.
NYCPS is an agency of New York City.[BN]
The is represented by:
Susan J. Horwitz, Esq.
Adriene Holder, Esq.
Lilia Toson, Esq.
Katherine M. Groot, Esq.
THE LEGAL AID SOCIETY
49 Thomas Street
New York, NY 10013
Phone: (212) 577-3300
Email: shorwitz@legal-aid.org
kgroot@legal-aid.org
- and -
Jeffrey P. Metzler, Esq.
Spencer E. Young, Esq.
PILLSBURY WINTHROP SHAW PITTMAN LLP
31 West 52nd Street
New York, NY 10019-6131
Phone: (212) 858-1000
Email: jeffrey.metzler@pillsburylaw.com
spencer.young@pillsburylaw.com
P&P IMPORTS: Bishop Sues Over Blind-Inaccessible Website
--------------------------------------------------------
CEDRIC BISHOP, on behalf of himself and all other persons similarly
situated, Plaintiff v. P&P IMPORTS LLC, Defendant, Case No.
1:24-cv-07396 (S.D.N.Y., Sept. 30, 2024) is a civil rights action
against the Defendant for its failure to design, construct,
maintain, and operate its interactive website
https://playgosports.com to be fully accessible to and
independently usable by Plaintiff and other blind or
visually-impaired persons in violation of the Americans with
Disabilities Act, the New York State Human Rights Law, and the New
York City Human Rights Law.
During Plaintiff's visits to the website, the last occurring on
September 26, 2024, in an attempt to purchase a GoSports Air Hockey
Table from Defendant and to view the information on the website,
the Plaintiff encountered multiple access barriers that denied
Plaintiff a shopping experience similar to that of a sighted person
and full and equal access to the goods and services offered to the
public and made available to the public. The Plaintiff attempted to
purchase a GoSports Air Hockey Table but was unable to locate
pricing and was not able to add the items to the cart due to broken
links, pictures without alternate attributes and other barriers on
Defendant's Website, which prevented him from doing so, says the
suit.
The Plaintiff seeks a permanent injunction to cause a change in
Defendant's corporate policies, practices, and procedures so that
Defendant's website will become and remain accessible to blind and
visually-impaired consumers.
P&P Imports LLC operates the Play GoSports online retail store, as
well as the Play GoSports interactive website and advertises,
markets, and operates in the State of New York and throughout the
United States.[BN]
The Plaintiff is represented by:
Michael A. LaBollita, Esq.
Dana L. Gottlieb, Esq.
Jeffrey M. Gottlieb, Esq.
GOTTLIEB & ASSOCIATES PLLC
150 East 18th Street, Suite PHR
New York, NY 10003
Telephone: (212) 228-9795
Facsimile: (212) 982-6284
E-mail: Jeffrey@Gottlieb.legal
Dana@Gottlieb.legal
Michael@Gottlieb.legal
PARTY CITY: Agostino Sues Over Termination Without Notice
---------------------------------------------------------
Kimberly Redmond, writing for NJBIZ, reports that a former Party
City employee is suing after she and 180 others were let go from
their positions at the specialty retailer's corporate headquarters
in Woodcliff Lake allegedly without notice.
In a proposed class action suit filed Sept. 23 in U.S. District
Court for the District of New Jersey, lead plaintiff Sonia Agostino
said the company violated federal and state employment laws when it
terminated 181 workers without warning in September.
Under the federal statute, employers with 100 workers or more must
give at least 60 days' notice before a planned mass layoff. New
Jersey's recently updated law calls for 90 days' notice of a plant
closure, reduction-in-force or large-scale layoff.
Prior to the terminations, Party City's corporate location had
about 328 employees, the complaint says.
Agostino said in her complaint that Party City failed to file a
WARN notice altogether. According to her, the company informed
impacted employees of the layoffs Sept. 17, and then let them go
the same day.
She seeks certification of a nationwide class and a New Jersey
subclass of employees who were fired. Agostino is also asking the
court for back pay, severance, attorney's fees and costs, as well
as any other relief a judge deems fit.
Ezra Salami is an attorney handling Agostino's case. He noted that
the suit "comes fresh off the heels of New Jersey Gov. Phil
Murphy's signing of a 2023 amendment to NJ WARN Act legislation,
which was revised to afford greater protection to employees from
large companies such as Party City."
'One of the best'
"As a result, New Jersey now has one of the best state-version WARN
Act laws in the country. As alleged in the lawsuit, nevertheless,
Party City flatly ignored Gov. Murphy's sweeping new law [in] 2023
when it summarily terminated hundreds of employees via email on
September 17th without any notice or warning as employees, many of
which have families with children, head into the holiday shopping
season," said Salami, who is managing attorney of Brooklyn,
N.Y.-headquartered Ezra Law PC.
A spokesperson for Party City did not immediately respond to a
request for comment.
The lawsuit comes nearly a year after Party City emerged from
Chapter 11 bankruptcy with a reduced store footprint, strengthened
capital structure and improved liquidity.
As part of its restructuring agreement, the retailer wiped away
nearly $1 billion in debt, renegotiated leasing terms and closed
underperforming locations. Party City is the largest retailer of
party goods in the U.S., Canada and Mexico. The company was
established 38 years ago in East Hanover.
When it filed for bankruptcy relief in January 2023, Party City's
footprint included about 820 stores -- 770 of them owned. Now, it
boasts about 750 company-owned and franchise stores.
In August, the company brought in Barry Litwin, an industry veteran
with turnaround experience, as its new chief executive officer and
president.
Party City's board chairman Bob Hull said he and the team were
"extremely confident" that Litwin's expertise "in fostering
business growth and transformation, as well as his people-focused
leadership style will bring Party City to the next level."
In taking the reins, Litwin said, "Our main priority is to
strengthen our financial health, and there is work ahead of us."
[GN]
PEP BOYS: Violates Labor Code's Seating Mandate, Gutierrez Says
---------------------------------------------------------------
MARK GUTIERREZ, an individual, on behalf of himself, and all others
similarly situated, Plaintiff v. THE PEP BOYS MANNY MOE & JACK OF
CALIFORNIA LLC, a California Limited Liability Company, and DOES 1
through 50, inclusive, Defendants, Case No. 24STCV25173 (Cal.
Super., Los Angeles Cty., Sept. 30, 2024) seeks civil penalties on
behalf of Plaintiff and other aggrieved employees for violations of
the seating mandate pursuant to Private Attorneys General Act of
2004, California Labor Code.
The law requires that employees shall be permitted to use suitable
seats when it does not interfere with the performance of their
duties, or, when the nature of the work does require standing but
the employees are not engaged in the active duties of their
employment, an adequate number of suitable seats shall be placed in
reasonable proximity to the work area and employees shall be
permitted to use such seats when it does not interfere with the
performance of their duties.
The complaint alleges that Defendant's Regional and District
Managers instructed employees, including Plaintiff, that they are
not permitted to sit in chairs when completing work tasks, even
when doing so did not interfere with the performance of their job
duties.
The Plaintiff was employed by The Pep Boys Manny Moe and Jack of
California LLC at the Pep Boys that Defendant owns and operates
located in Monrovia California.
Pep Boys is an American automotive aftermarket service chain.[BN]
The Plaintiff is represented by:
Thomas A. Kearney, Esq.
Prescott W. Littlefield, Esq.
Andrew J. Kearney, Esq.
KEARNEY LITTLEFIELD, LLP
655 N. Central Ave., 17th Floor
Glendale, CA 91203
Telephone (213) 473-1900
Facsimile (213) 473-1919
E-mail: tak@kearneylittlefield.com
pwl@kearneylittlefield.com
ajk@kearneylittlefield.com
- and -
Brandon Littlefield, Esq.
LITTLEFIELD LAW
1450 San Marino Ave., Ste. 113
San Marino, CA 91108
E-mail: brandon@littlefieldlawpractice.com
PG&E CORP: Securities Omnibus Claims Objections Overruled in Part
-----------------------------------------------------------------
Judge Dennis Montali of the U.S. Bankruptcy Court for the Northern
District of California issued a Memorandum Decision overruling in
part and sustaining in part the Thirty-Third and Thirty-Fourth
Securities Omnibus Claims Objections in the lawsuit entitled In re:
PG&E CORPORATION, and PACIFIC GAS AND ELECTRIC COMPANY, Reorganized
Debtors, Case No. 19-30088-DM (Bankr. N.D. Cal.).
The Court has had under submission PG&E's Thirty-Third Securities
Omnibus Claims Objection to PERA and Securities Act Plaintiffs'
TAC, Including to Certain Claimants That Adopted the TAC ("33rd
Omnibus Objection") and PG&E's Thirty-Fourth Securities Claims
Omnibus Objection to Claims Adopting RKS Amendment ("34th Omnibus
Objection" and together, the "Omnibus Objections"). Rule 3007(d)2
of the Federal Rules of Bankruptcy Procedure permits the filing of
omnibus objections.
The Court has considered the Omnibus Objections; Lead Plaintiff
PERA and The Securities Act Plaintiffs' Response and Opposition to
the Reorganized Debtors' Thirty-Third Securities Omnibus Claims
Objection; the RKS Claimants' Opposition to Reorganized Debtors'
Thirty-Fourth Securities Claims Omnibus Objection to Claims
Adopting the RKS Amendment; the Omnibus Reply in Support of
Reorganized Debtors' Thirty-Third and Thirty-Fourth Securities
Claims Omnibus Objections ("Reply"); the Further Reply in Support
of Reorganized Debtors' Thirty-Fourth Securities Claims Omnibus
Objection to Claims Adopting RKS Amendment; the Third Amended
Consolidated Class Action Complaint for Violation of the Federal
Securities Laws (filed in USDC action 3:18-cv-03509-EJD) ("TAC");
the Amended Statement of Claim on Behalf of the RKS Claimants; and
the numerous filings related to the foregoing submissions.
The TAC contains six claims for relief, four of which are directed
at PG&E. In its entirety, it includes 706 numbered paragraphs
spanning 216 pages. The RKS Amendment covers 195 pages of text and
673 numbered paragraphs. It consists of five claims for relief, all
against PG&E.
PERA and RKS assert two different types of causes of action
asserted under two different statutory schemes. First are the
Exchange Act claims, which originate under the Securities Exchange
Act of 1934 and are based on equity interests purchased by
Securities Fraud claimants. Next are the Securities Act claims,
asserted by purchasers of debt securities purchased during the
Notes and Exchange Offerings. These claims were either paid or left
in place under the Confirmed Plan, but as with the Exchange Act
claims, the individual damage amounts remain undetermined.
Albeit with differing pleading standards, Judge Montali says the
Omnibus Objections are taken as motions to dismiss the TAC and the
RKS Amendment.
For the reasons set forth in this Memorandum Decision, the Court
rules that the Omnibus Objections are overruled in part and
sustained in part. While the Court does not believe it will be
necessary for PERA or the RKS Claimants to seek to amend their
respective submissions, given the breadth of what survives the
Omnibus Objections, the rules permit them to do so.
If either does amend, the Court will not consider any renewed
attempts by PG&E to dismiss at this stage. Any amendments to the
TAC or the RKS Amendments were due to be filed on Oct. 8, 2024.
These matters must proceed with the pleadings as modified by this
ruling and any further amendments so discovery, more typical
pre-trial proceedings, mediation, and then trial as necessary.
Judge Montali notes that PG&E is clear that the Private Securities
Litigation Reform Act ("PSLRA") is a shield to protect law abiding
companies from frivolous lawsuits from investors. It is not a sword
for bankruptcy debtors to hinder claimants.
The original TAC was filed by PERA and other plaintiffs before the
bankruptcy filing. For all practical purposes the bankruptcy
removed PG&E from the TAC. Any attendant procedural benefits of the
PSLRA might remain in the District Court Action.
On May 19, 2019, PG&E filed the Motion to Set Last Day to File
Proofs of Claim. That motion sought to set a bar date for filing
proofs of claim by Wildfire Claimants; Wildfire Subrogation
Claimants; Customers, and governmental units. Proofs of Claim were
not required to be filed by holders of equity security interests or
Debt Claims (without any carveout for claims relating to the
purchase or sale of such a Debt Claim). The motion did not mention
any claim for securities fraud as later alleged in the TAC or the
RKS Amendment.
The Court initially set a claims bar date of Oct. 21, 2019. Proofs
of claim on behalf of the class described in the TAC were duly
filed Oct. 21, 2019 (Proof of Claim Nos. 72193, 72273). On Dec. 19,
2019, PERA filed a Motion to Apply Bankruptcy Rule 7023 to Class
Proof of Claim, which PG&E opposed. PG&E insisted that the proof of
claim process was superior to PERA's proposal.
After further briefing, the Court sided with PG&E, and instead of
proceeding with a Rule 7023 class action as requested by PERA, set
a new bar date of April 16, 2020, for what the Court's Order
defined as Securities Claimants, and broadened the types of claims
that could be filed by the extended bar date.
In the rounds of briefing and supplemental briefing, the only time
the PSLRA was even mentioned was by Mr. Etkin, counsel for PERA, at
the hearing on PERA's Motion to Apply Bankruptcy Rule 7023 to Class
Proof of Claim, Judge Montali says. Mr. Etkin's mention of the
PSLRA stay indicates that he believed the PSLRA's stay on discovery
applied during the pendency of a motion to dismiss a class action
lawsuit arising under the statute. While PERA may have believed the
PSLRA to apply to its proposed class, PG&E at no point suggested
the heightened pleading standards of the PSLRA would apply to its
proposed claims objection process that, again, was strictly in
opposition to a proposed class process.
An amended Plan was confirmed on June 20, 2020. On Sept. 29, 2020,
PERA filed a second motion to apply Rule 7023 and certify a class
of the thousands of securities claims. The Court again sided with
PG&E and denied that motion as well, and instead entered an Order
Approving Securities ADR and Related Procedures for Resolving
Subordinated Securities Claim. That order approved detailed
Securities Claim Procedures, along with Securities Omnibus
Objection Procedures. That order also provided that to the extent
there were unresolved objections after settlement negotiations and
mediation, merits-based objections will be made pursuant to section
502 of the Bankruptcy Code and consistent with Rule 3007 of the
Federal Rules of Bankruptcy Procedure. The only reference to the
PSLRA was in a footnote.
In short, Judge Montali says, PG&E designed and supported the
procedures that the Court implemented over the objections of PERA.
Yet now, PG&E seeks to use the PSLRA as a shield notwithstanding
the fact that PG&E chose bankruptcy and the now well-established
Securities Claim Procedures. PG&E must continue with rather than
frustrate these procedures.
On July 28, 2023, the Court entered the Order Authorizing Amendment
and Objection Procedures for Securities Claims (the "Objections
Procedures Order"). The Objections Procedures Order was agreed to
by RKS (but not PERA). The Objections Procedures Order states that
discovery was not to take place until motions to dismiss the claims
were decided.
In the summer of 2023, there was no focus by the Court or the
parties as to whether the PSLRA even applied. As the situation has
progressed, it is evident that PG&E was of the view that the PSLRA
should apply and, therefore, a stay of discovery was appropriate.
Later the Court issued the Order Denying Requests for Limited
Discovery on Jan. 25, 2024, and included its explanation about
timing discovery after the sufficiency objections were ruled upon.
The opposition by PERA and RKS in their subsequent filings
demonstrate that the underlying premise of the applicability of the
PSLRA must be reconsidered. Indeed, the Court never formally held
that it did apply. Judge Montali says that it is particularly
inappropriate to use in opposition to claims that have been filed
against debtors in bankruptcy court, and not in opposition to
actions filed by class plaintiffs against it, as contemplated by
the PSLRA.
The Court cannot and will not depart from the traditional procedure
of deferring any disputed fact questions until after completion of
appropriate discovery. The PSLRA is unfamiliar territory for
bankruptcy courts to navigate and this Court will not venture
there, Judge Montali explains.
Judge Montali finds that the TAC and RKS Amendment plausibly allege
that the Offering Documents contained misleading statements and
omissions. Accordingly, the Omnibus Objections regarding falsity in
the Offering Documents under various portions of the Securities Act
are overruled.
The Omnibus Objections on reliance based on the Ute line of cases
are sustained, Judge Montali holds, citing Affiliated Ute Citizens
of Utah v. United States, 406 U.S. 128 (1972).
Judge Montali also finds, among other things, that PG&E's attempt
to eliminate certain claimants for failure to plead reliance fails
and the Omnibus Objections based on failure to plead reliance are
overruled. Those claimants, who must prove reliance as to their
claims, may do so as a part of their proof at trial or on any
dispositive pretrial motion.
For these reasons, the Court rules that the 33rd Omnibus Objection
and the 34th Omnibus Objection are overruled in part and sustained
in part. Promptly after the issuance of this Memorandum Decision,
the Court will issue specific orders disposing of those Omnibus
Objections for the reasons stated here.
The Court will conduct a status conference on these matters on Oct.
22, 2024, at 10:00 a.m. The purpose of that conference will be to
discuss with counsel the further conduct of the remaining
securities fraud claims asserted by PERA and RKS. Prior to that
time, counsel should meet and confer to discuss such matters as
discovery, motions, whether any mediation efforts should be
coordinated with the mediation the district court has ordered and
other matters as appropriate.
One week prior to the status conference, Judge Montali directs the
parties to submit updated reports concerning unresolved claims
filed in their respective June 21, 2024 submissions.
A full-text copy of the Court's Memorandum Decision is available at
https://tinyurl.com/4vf9bxts from PacerMonitor.com.
PONTIAC, MI: S. J. Appeals Case Dismissal to 6th Cir.
-----------------------------------------------------
S. J., minor, by and through his Parents and Natural Guardians
Lawrence F Jasper, II and Rosalia O. Jasper, et al. are taking an
appeal from a court order dismissing their lawsuit entitled S. J.,
minor, by and through his Parents and Natural Guardians Lawrence F
Jasper, II and Rosalia O. Jasper, et al., individually and on
behalf of all others similarly situated, Plaintiffs, v. City of
Pontiac, MI, et al., Defendants, Case No. 2:24-cv-10111, in the
U.S. District Court for the Eastern District of Michigan.
As previously reported in the Class Action Reporter, the lawsuit,
which was removed from the Oakland County Circuit Court to the U.S.
District Court for the Eastern District of Michigan, is brought
against the Defendants for violations of Civil Rights Act.
On May 7, 2024, the Defendants filed a motion to dismiss.
On July 12, 2024, Magistrate Judge Curtis Ivy, Jr. filed a Report
and Recommendation for Rule 4(M) dismissal, which the Court adopted
through an Order entered by Judge David M. Lawson on October 1,
2024. The Court dismissed the case without prejudice for failure to
complete service of process.
The appellate case is captioned S. J., et al. v. City of Pontiac,
MI, et al., Case No. 24-1823, in the United States Court of Appeals
for the Sixth Circuit, filed on October 1, 2024. [BN]
Plaintiffs-Appellants S. J., minor, by and through his Parents and
Natural Guardians Lawrence F Jasper, II and Rosalia O. Jasper, et
al., individually and on behalf of all others similarly situated,
appear pro se.
Defendants-Appellees CITY OF PONTIAC, MI, et al. are represented
by:
Michael T. Berger, Esq.
Holly Stockton Battersby, Esq.
ROSATI SCHULTZ JOPPICH & AMTSBUECHLER
27555 Executive Drive, Suite 250
Farmington Hills, MI 48331
Telephone: (248) 489-4100
- and -
Brandon S. Corcoran, Esq.
MILLER JOHNSON
500 Woodward Avenue, Suite 2800
Detroit, MI 48226
Telephone: (313) 672-6946
PRENTKE ROMICH: Fails to Secure Customers' Info, Westman Claims
---------------------------------------------------------------
CINDY WESTMAN, individually and as next friend of Z.R., a minor,
and on behalf of all others similarly situated v. PRENTKE ROMICH
COMPANY d/b/a PRC-SALTILLO, Case No. 5:24-cv-01738 (N.D. Ohio, Oct.
7, 2024) sues the Defendant for its failure to properly secure and
safeguard the Plaintiffs' and other similarly situated PRC-Saltillo
customers' personally identifiable information and protected health
information from criminal hacker.
On Sept. 12, 2024, PRC-Saltillo filed official notice of a hacking
incident with the Office of the Maine Attorney General.
On Sept. 25, 2024, PRC-Saltillo also sent out data breach letters
to the individuals whose information was compromised as a result of
the hacking incident.
The Plaintiffs and "Class Members" were, and continue to be, at
significant risk of identity theft and various other forms of
personal, social, and financial harm. The risk will remain for
their respective lifetime, the suit asserts.
The compromised information includes names, addresses, phone
numbers, dates of birth, treatment cost information,
referring/treating physician, health insurance policy numbers,
Medicare/Medicaid plan names, and/or medical device purchased.
Accordingly, the Plaintiffs, on behalf of themselves and the Class,
assert claims for negligence, negligence per se, breach of express
contract, breach of implied contract, violation of the Illinois
Consumer Fraud and Deceptive Business Practices Act, unjust
enrichment, breach of fiduciary duty, breach of confidence, and
declaratory judgment.
PRC-Saltillo is a developer of speech-generating devices, apps and
several innovative AAC language systems.[BN]
The Plaintiff is represented by:
Terence R. Coates, Esq.
MARKOVITS, STOCK & DEMARCO, LLC
119 East Court Street, Suite 530
Cincinnati, OH 45202
Telephone: (513) 651-3700
Facsimile: (513) 665-0219
E-mail: tcoates@msdlegal.com
- and -
Tyler J. Bean, Esq.
SIRI & GLIMSTAD LLP
745 Fifth Avenue, Suite 500
New York, NY 10151
Telephone: (212) 532-1091
E-mail: tbean@sirillp.com
SAKS FIFTH AVENUE: Dalton Sues Over Blind-Inaccessible Website
--------------------------------------------------------------
Julie Dalton, individually and on behalf of all others similarly
situated v. Saks Fifth Avenue LLC, Case No. 0:24-cv-03860-NEB-DLM
(D. Minn., Oct. 8, 2024), is brought arising because Defendant's
Website (www.saksfifthavenue.com) (the "Website" or "Defendant's
Website") is not fully and equally accessible to people who are
blind or who have low vision in violation of both the general
non-discriminatory mandate and the effective communication and
auxiliary aids and services requirements of the Americans with
Disabilities Act (the "ADA") and its implementing regulations. In
addition to her claim under the ADA, Plaintiff also asserts a
companion cause of action under the Minnesota Human Rights Act
(MHRA).
The Defendant owns, operates, and/or controls its Website and is
responsible for the policies, practices, and procedures concerning
the Website's development and maintenance. As a consequence of her
experience visiting Defendant's Website, including in the past
year, and from investigation performed on her behalf, Plaintiff
found Defendant's Website has a number of digital barriers that
deny screen-reader users like Plaintiff full and equal access to
important Website content Defendant makes available to its sighted
Website users.
Still, Plaintiff would like to, intends to, and will attempt to
access Defendant's Website in the future to browse, research, or
shop online and purchase the products and services that Defendant
offers. The Defendant's policies regarding the maintenance and
operation of its Website fail to ensure its Website is fully
accessible to, and independently usable by, individuals with
vision-related disabilities. The Plaintiff and the putative class
have been, and in the absence of injunctive relief will continue to
be, injured, and discriminated against by Defendant's failure to
provide its online Website content and services in a manner that is
compatible with screen reader technology, says the complaint.
The Plaintiff is and has been legally blind.
The Defendant offers clothing and accessories for sale including,
but not limited to, clothing, shoes, bags, jewelry, beauty
supplies, and more.[BN]
The Plaintiff is represented by:
Patrick W. Michenfelder, Esq.
Chad A. Throndset, Esq.
Jason Gustafson, Esq.
THRONDSET MICHENFELDER, LLC
Jason Gustafson (#0403297)
222 South Ninth Street, Suite 1600
Minneapolis, MN 55402
Phone: (763) 515-6110
Email: pat@throndsetlaw.com
chad@throndsetlaw.com
jason@throndsetlaw.com
SARAH JANE SPIKES: Brown Sues Over Fraudulent Schemes
-----------------------------------------------------
Thurman Brown, Heir and Lead Plaintiff, on behalf of himself and
others similarly situated v. Sarah Jane Spikes, Murrell K. Spikes,
Rickey McCluney, Mark D. Lackey, the Registrar Of Deeds for
Cleveland County, and others to be determined, Case No.
1:24-cv-00249-MR-WCM (W.D.N.C., Oct. 9, 2024), is brought against
Sarah Jane Spikes and her associates for fraudulent property
transfer, estate mismanagement, professional negligence, and
related fraudulent schemes.
The Plaintiffs bring this action under the Federal Rules Of Civil
Procedure, Rule 23, seeking compensation, restitution, and
injunctive relief for the harm caused by the defendants' actions in
connection With the estate Of Henrietta Flack Withrow. The
fraudulent activities, which began as early as 2005, involved the
illegal transfer of estate property through deed fraud, title
washing, and misrepresentation. Plaintiffs also bring claims Of
professional negligence against attorneys involved in facilitating
these fraudulent transactions and claim negligence against the
Cleveland County Registrar of Deeds, says the complaint.
The Plaintiff is a resident of North Carolina and an heir to the
estate of Hemietta Flack Withrow.
Sarah Jane Spikes is a resident of Cleveland County, North
Carolina, and was the executor of the estate of Henrietta Flack
Withrow.[BN]
The Plaintiff appears pro se.
SEDGWICK CLAIMS: Bailey Sues Over Unlawful Surcharges
-----------------------------------------------------
Korine Y. Bailey, on behalf of herself and all others similarly
situated v. SEDGWICK CLAIMS MANAGEMENT SERVICES, INC., Case No.
2:24-cv-02749 (W.D. Tenn., Oct. 8, 2024), is brought as a result of
the Defendants surcharges which violate the Employee Retirement
Income Security Act ("ERISA") and its anti-discrimination
provisions by unfairly targeting employees based on their health
status, such as tobacco use.
It is both unfair and unlawful for entities like the Sedgwick to
impose punitive health insurance surcharges on employees who use
tobacco products. This lawsuit challenges Defendant's practice of
charging a "tobacco surcharge" that unjustly forces certain
employees to pay higher premiums for their health insurance.
Tobacco surcharges have become more prevalent in recent years, but
to be lawful, they must adhere to specific rules set forth by ERISA
and related regulations. These rules mandate that employers cannot
charge extra fees based on tobacco use unless those fees are part
of a compliant wellness program that offers a reasonable
alternative standard to all participants. While ERISA allows for
wellness programs that incentivize healthy behavior, these programs
must meet strict criteria.
Notwithstanding, the Sedgwick Welfare Benefits Plan (the "Plan")
fails to offer the requisite reasonable alternative standard as
mandated by law. Furthermore, even if such an alternative standard
existed, Defendant has neglected to adequately inform employees of
its availability, an alternative that would allow employees to
circumvent the surcharge for the entirety of the year.
Further, participants must also be notified that recommendations of
the person's physician will be accommodated, which Plan materials
fail to do. This failure to communicate is common across all Plan
communications. As a result, the Defendant's tobacco surcharge is
in violation of ERISA's anti-discrimination provisions. It imposes
additional costs on employees who use tobacco products without
satisfying the legal criteria for a bona fide wellness program,
says the complaint.
The Plaintiff is and continues to be an employee of Sedgwick.
Sedgwick is a private company that provides technology-enabled
risk, benefits and integrated business solutions.[BN]
The Plaintiff is represented by:
R. Scott Pietrowski, Esq.
Oren Faircloth, Esq.
David J. DiSabato, Esq.
SIRI & GLIMSTAD LLP
745 Fifth Avenue, Suite 500
New York, NY 10151
Phone: (212) 532-1091
Email: spietrowski@sirillp.com
ofaircloth@sirillp.com
ddisabato@sirillp.com
SELF EDGE NEW YORK: Abramson Sues Over Blind-Inaccessible Website
-----------------------------------------------------------------
Paul Abramson, on behalf of herself and all others similarly
situated v. SELF EDGE NEW YORK, LLC, Case No. 1:24-cv-07085
(S.D.N.Y., Oct. 8, 2024), is brought against the Defendant for
their failure to design, construct, maintain, and operate their
website to be fully accessible to and independently usable by
Plaintiff and other blind or visually-impaired persons.
The Defendant is denying blind and visually-impaired persons
throughout the United States with equal access to the goods and
services Self Edge provides to their non-disabled customers through
https://www.selfedge.com (hereinafter "Selfedge.com" or "the
website"). The Defendant's denial of full and equal access to its
website, and therefore denial of its products and services offered,
and in conjunction with its physical locations, is a violation of
Plaintiff's rights under the Americans with Disabilities Act (the
"ADA").
Because Defendant's website, https://www.selfedge.com, is not
equally accessible to blind and visually-impaired consumers, it
violates the ADA. Plaintiff seeks a permanent injunction to cause a
change in We Catch Em's policies, practices, and procedures to that
Defendant's website will become and remain accessible to blind and
visually-impaired consumers. This complaint also seeks compensatory
damages to compensate Class members for having been subjected to
unlawful discrimination, says the complaint.
The Plaintiff is a visually-impaired and legally blind person who
requires screen-reading software to read website content using the
computer.
Selfedge.com is a commercial website and online platform that
provides men's apparel and accessories offered by Defendant in
connection with its physical locations.[BN]
The Plaintiff is represented by:
Gabriel Levy, Esq.
GABRIEL A. LEVY, P.C.
1129 Northern Blvd., Suite 404
Manhasset, NY 11030
Phone: +1 347-941-471
Email: Glevyfirm@gmail.com
SIMPLENURSING LLC: Sued Over Unlawful Disclosure of Identities
--------------------------------------------------------------
Faith Benson, individually and on behalf of all others similarly
situated v. SIMPLENURSING LLC, Case No. 1:24-cv-01118-UNA (D. Del.,
Oct. 9, 2024), is brought to redress Defendant's practices of
knowingly disclosing Plaintiff's and its other customers'
identities and their purchases of subscriptions to access
prerecorded video content to Meta Platforms, Inc., formerly known
as Facebook, Inc., in violation of the federal Video Privacy
Protection Act ("VPPA").
The Defendant has systematically transmitted (and continues to
transmit today) its customers' personally identifying video viewing
information to Meta using a snippet of programming code called the
"Meta Pixel," which Defendant chose to install and configure on its
www.simplenursing.com website (the "Website").
The information Defendant disclosed (and continues to disclose) to
Meta via the Meta Pixel includes the customer's Facebook ID ("FID")
and the subscription that each of its customers purchased on its
Website. An FID is a unique sequence of numbers linked to a
specific Meta profile. The Meta Pixel installed by Defendant
captures and discloses to Meta information that reveals a
particular person purchased a subscription to access prerecorded
video content on Defendant's Website (hereinafter, "Private Viewing
Information").
The Defendant disclosed and continues to disclose its customers'
Private Viewing Information to Meta without asking for, let alone
obtaining, their consent to these practices. The VPPA clearly
prohibits what Defendant has done. VPPA provides that, absent the
consumer's prior informed, written consent, any "video tape service
provider who knowingly discloses, to any person, personally
identifiable information concerning any consumer of such provider
shall be liable to the aggrieved person for."
Accordingly, on behalf of herself and the putative Class members,
Plaintiff brings this Class Action Complaint against Defendant for
intentionally and unlawfully disclosing her and the Putative Class
members' Private Viewing Information to Meta, says the complaint.
The Plaintiff is a user of Meta.
The Defendant operates and maintains the Website
www.simplenursing.com, where it sells subscriptions to access
prerecorded video content on standardized examination preparation
for exams such as the NCLEX-RN, TEAS, NCLEX-PN, and nursing
school.[BN]
The Plaintiff is represented by:
R. Grant Dick IV, Esq.
Dean R. Roland, Esq.
COOCH AND TAYLOR, P.A.
The Brandywine Building
1000 North West St., Suite 1500
Wilmington, DE 19801
Phone: (302) 984-3867
Facsimile: (302) 984-3939
Email: gdick@coochtaylor.com
droland@coochtaylor.com
- and -
Elliot O. Jackson, Esq.
HEDIN LLP
1395 Brickell Ave., Suite 610
Miami, FL 33131-3302
Phone: (305) 357-2107
Facsimile: (305) 200-8801
Email: ejackson@hedinllp.com
SNOWFLAKE INC: Conte Suit Transferred to D. Montana
---------------------------------------------------
The case captioned as Alessandra Conte, individually and on behalf
of all others similarly situated v. Snowflake, Inc., Case No.
3:24-cv-04443 was transferred from the U.S. District Court for the
Northern District of California, to the U.S. District Court for the
District of Montana on Oct. 9, 2024.
The District Court Clerk assigned Case No. 2:24-cv-00128-BMM to the
proceeding.
The nature of suit is stated as Other Contract for Contract
Default.
Snowflake Inc. -- https://www.snowflake.com/en/ -- is an American
_cloud computing–based data cloud company based in Bozeman,
Montana.[BN]
The Plaintiff is represented by:
Vess Allen Miller, Esq.
COHEN AND MALAD, LLP
One Indiana Square, Suite 1400
Indianapolis, IN 46204
Phone: (317) 636-6481
Fax: (317) 636-2593
Email: vmiller@cohenandmalad.com
The Defendant is represented by:
Stephen Andrew Broome, Esq.
QUINN EMANUEL URQUHART & SULLIVAN LLP
865 S. Figueroa Street, 10th Floor
Los Angeles, CA 90017
Phone: (213) 443-3285
Fax: (213) 443-3100
Email: stephenbroome@quinnemanuel.com
SOMEONE CARES: Durham Sues Over Failure to Pay Overtime Wages
-------------------------------------------------------------
Willie Durham, on behalf of himself and others similarly situated
v. SOMEONE CARES INC. OF ATLANTA, a Georgia Domestic Nonprofit
Corporation, RONNIE E. BASS, an individual, and WINSTON LIBURD, an
individual, Case No. 1:24-cv-04576-SDG (N.D. Ga., Oct. 9, 2024), is
brought for damages and other relief brought by Plaintiffs pursuant
to the Fair Labor Standards Act, 29 U.S.C. §§ 201 et seq.,
("FLSA"), as a result of Defendants' failure to pay Plaintiffs
overtime wages as required by federal law.
The essence of Plaintiffs' claims are that Defendants failed to pay
Plaintiffs at least one and one-half times their regular rate of
pay for each hour they worked for Defendants over 40 hours in a
given workweek, constituting a violation of the overtime wage
provisions of the FLSA.
These causes of action arise from Defendants' willful actions while
Plaintiffs were employed by Defendants from 2022-2023. During their
time being employed by Defendants, Plaintiffs were denied overtime
wage payments as part of Defendants' scheme to avoid the FLSA's
overtime wage provisions, says the complaint.
The Plaintiff resides in this District and is a former employee of
Defendants from July 2022 to November 2023.
Someone Cares Inc. of Atlanta ("SCIA") is a Georgia Domestic
Nonprofit Corporation with its principal office address located in
Marietta, Georgia.[BN]
The Plaintiff is represented by:
Carlos V. Leach, Esq.
Jordan P. Rose, Esq.
THE LEACH FIRM, P.A.
1560 N. Orange Ave., Suite 600
Winter Park, FL 32789
Phone: (407) 574-4999
Facsimile: (833) 423-5864
Email: cleach@theleachfirm.com
jrose@theleachfirm.com
ppalmer@theleachfirm.com
SOUTH CAROLINA: Joint Bid for Discovery OK'd
---------------------------------------------
In the class action lawsuit captioned as STERLING MISANIN, et al.,
v. ALAN WILSON, in his official capacity as the Attorney General of
South Carolina, et al., Case No. 2:24-cv-04734-RMG (D.S.C.), the
Hon. Judge Richard Mark Gergel entered an order
1. granting the parties' joint motion for discovery regarding the
Plaintiffs' motions for class certification and a preliminary
injunction, and
2. approving the parties' proposed schedule as follows:
By Oct. 8, 2024, Plaintiffs will serve written discovery
limited
to requests that are relevant to the question of numerosity
with
respect to Plaintiffs' pending motion for class certification.
Defendants will have 21 days from service of those requests to
serve their responses and objections;
By Oct. 16, 2024, the Defendants will identify and disclose any
expert witness(es) they intend to use to support their
opposition
to the Plaintiffs' pending motions;
By Oct. 16, 2024, Plaintiffs will produce medical records
sufficient to show each Plaintiff’s gender dysphoria
diagnosis and
treatment plan.
On or before Oct. 25, 2024, Defendants will have the
opportunity
to depose the declarants, both Plaintiffs and experts, whose
declarations are used in support of Plaintiffs' pending
motions;
and
Defendants will make their expert witness(es) available to be
deposed between Nov. 4, 2024, and Nov. 13, 2024.
A copy of the Court's order dated Oct. 7, 2024, is available from
PacerMonitor.com at https://urlcurt.com/u?l=cMeHrP at no extra
charge.[CC]
STERLING METS: Dowling Suit Removed to E.D. New York
----------------------------------------------------
The case styled as Chris Dowling, on behalf of himself and all
others similarly situated v. STERLING METS, L.P. and DOES 1-10,
Case No. 718313/2024 was removed from the Supreme Court of Queens
County, New York, to the United States District Court for the
Eastern District of New York on Oct. 8, 2024, and assigned Case No.
1:24-cv-07092.
The Plaintiff claims SMLP sells, leases, trades, and/or shares
biometric identifier information from visitors to Citi Field for
value or otherwise profits from such a transaction. Based on that
allegation, Plaintiff asserts three claims for relief: Violation
of New York City Biometric Identifier Information Protection Code;
Violation of New York General Business Law; and Unjust
Enrichment.[BN]
The Plaintiff is represented by:
Jennifer Czeisler, Esq.
Edward Ciolko, Esq.
Blake Hunter Yagman, Esq.
STERLINGTON, PLLC
One World Trade Center
New York, NY 10004
Phone: (212) 433-2995
Email: sregan@huntonAK.com
jen.czeisler@sterlingtonlaw.com
ed.ciolko@sterlingtonlaw.com
blake.yagman@sterlingtonlaw.com
- and -
Adam Pollock, Esq.
Anna Menkova, Esq.
POLLOCK COHEN LLP
111 Broadway, Suite 1804
New York, NY 10006
Phone: (212) 337-536
Email: sregan@huntonAK.com
Adam@PollockCohen.com
Anna@PollockCohen.com
The Defendants are represented by:
Shawn Patrick Regan, Esq.
Sarah F. Spellman, Esq.
200 Park Avenue, 52nd Floor
New York, NY 10166
Phone: (212) 309-1046
Email: sregan@huntonAK.com
sspellman@huntonAK.com
- and -
Neil K. Gilman, Esq.
2200 Pennsylvania Avenue, NW
Washington, D.C. 20037
Phone: (202) 955-1674
Email: ngilman@huntonAK.com
THANG BOTANICALS: Faces Class Action Over Addictive Supplements
---------------------------------------------------------------
Adam Jackson, writing for Green Market Report, reports that a
California-based kratom extract manufacturer is facing a class
action lawsuit alleging it failed to warn consumers about the
addictive potential of its products.
The lawsuit, filed Monday, October 7, in U.S. District Court in San
Francisco, claims Thang Botanicals Inc. and FTLS Holdings LLC,
which make the 7ΩHMZ products in question, sold
7-Hydroxymitragynine (7-OH) tablets without disclosing they could
be as addictive as opioids, according to Law360.
Kratom is derived from a Southeast Asian plant and sold as a bitter
powder. The product has gained popularity in the U.S. as an herbal
supplement and potential alternative to opioids.
According to the complaint, 7-OH activates the same brain receptors
as morphine and heroin. The plaintiffs allege the companies knew
about such effects but failed to include proper warnings on product
packaging.
"Defendants rely on their products' vague packaging and consumers'
limited knowledge of 7-Hydroxymytragynine to get unsuspecting
people addicted to their products," the lawsuit stated.
Four plaintiffs from California, Nevada and Oregon claim they
developed dependencies after using the product and experienced
withdrawal symptoms when attempting to stop.
One plaintiff, identified as J.R. from Nevada, said he was told the
product would help with leg pain without being addictive. The
complaint states J.R. "could not believe that something without a
warning could wreak the same havoc on his life that those pills did
when he was an addict."
The lawsuit seeks to represent a nationwide class of consumers who
purchased 7ΩHMZ products. Gregory Dalli, CFO for both defendants,
appeared on a podcast in September to discuss the product.
"7-Hydroxymitragynine in specific is a really perfect key for the
MU opioid receptor," Dalli said, according to the complaint.
The plaintiffs allege the companies even distributed free samples
without adequate warnings.
"The very act of giving out 'free samples' is a signal to consumers
that the product is safe and harmless," the lawsuit said.
The American Kratom Association estimates the industry is worth
$1.3 billion annually, with 11 million-15 million users in the U.S.
However, the Food and Drug Administration has not approved kratom
for any medical use, nor does it regulate it. There have been
numerous reports linking strings of deaths to the use of Kratom
over the years.
The lawsuit also alleges the companies violated implied warranties
and were unjustly enriched by their sales practices.
Plaintiffs' attorneys are seeking an order requiring the companies
to launch a "corrective advertising campaign" in addition to
damages. [GN]
TICKETMASTER LLC: Getman Suit Transferred to D. Montana
-------------------------------------------------------
The case captioned as Amy Getman, Stephanie Evangelista, on behalf
of themselves and all others who are similarly situated v.
Ticketmaster LLC, Live Nation Entertainment, Inc., Case No.
2:24-cv-04580 was transferred from the U.S. District Court for the
Central District of California, to the U.S. District Court for the
District of Montana on Oct. 9, 2024.
The District Court Clerk assigned Case No. 2:24-cv-00115-BMM to the
proceeding.
The nature of suit is stated as Other Contract.
Ticketmaster Entertainment, LLC -- https://www.ticketmaster.com/ --
is an American ticket sales and distribution company based in
Beverly Hills, California.[BN]
The Plaintiffs are represented by:
Ryan J. Clarkson, Esq.
Yana A. Hart, Esq.
Tiara Avaness, Esq.
CLARKSON LAW FIRM PC
22525 Pacific Coast Highway
Malibu, CA 90265
Phone: (213) 788-4050
Fax: (213) 788-4070
Email: rclarkson@clarksonlawfirm.com
yhart@clarksonlawfirm.com
tavaness@clarksonlawfirm.com
- and -
Edward W. Ciolko, Esq.
STERLINGTON PLLC
One World Trade Center, 85th Floor
New York, NY 10007
Phone: (212) 433-2993
Email: edward.ciolko@sterlingtonlaw.com
The Defendants are represented by:
D. Scott Carlton, Esq.
Raymond W. Stockstill, Esq.
PAUL HASTINGS LLP
515 South Flower Street 25th Floor
Los Angeles, CA 90071
Phone: (213) 683-6000
Fax: (213) 627-0705
Email: scottcarlton@paulhastings.com
beaustockstill@paulhastings.com
- and -
James Michael Pearl, Esq.
PAUL HASTINGS LLP
1999 Avenue of the Stars, 27th Floor
Los Angeles, CA 90067
Phone: (310) 620-5700
Fax: (310) 620-5899
Email: jamespearl@paulhastings.com
TICKETMASTER LLC: Miller Suit Transferred to D. Montana
-------------------------------------------------------
The case captioned as Matthew Miller, individually and on behalf of
all others similarly situated v. Ticketmaster LLC, Live Nation
Entertainment, Inc., Case No. 2:24-cv-05867 was transferred from
the U.S. District Court for the Central District of California, to
the U.S. District Court for the District of Montana on Oct. 9,
2024.
The District Court Clerk assigned Case No. 2:24-cv-00126-BMM to the
proceeding.
The nature of suit is stated as Other Contract.
Ticketmaster Entertainment, LLC -- https://www.ticketmaster.com/ --
is an American ticket sales and distribution company based in
Beverly Hills, California.[BN]
The Plaintiffs are represented by:
Jennifer M French, Esq.
LYNCH CARPENTER, LLP
1234 Camino Del Mar
Del Mar, CA 92014
Phone: (619) 762-1903
Fax: (858) 313-1850
Email: jennf@lcllp.com
The Defendants are represented by:
D. Scott Carlton, Esq.
Raymond W. Stockstill, Esq.
PAUL HASTINGS LLP
515 South Flower Street 25th Floor
Los Angeles, CA 90071
Phone: (213) 683-6000
Fax: (213) 627-0705
Email: scottcarlton@paulhastings.com
beaustockstill@paulhastings.com
- and -
James Michael Pearl, Esq.
PAUL HASTINGS LLP
1999 Avenue of the Stars, 27th Floor
Los Angeles, CA 90067
Phone: (310) 620-5700
Fax: (310) 620-5899
Email: jamespearl@paulhastings.com
TICKETMASTER LLC: Poluk Suit Transferred to D. Montana
------------------------------------------------------
The case captioned as Corey Poluk, on behalf of themselves and all
others who are similarly situated v. Ticketmaster LLC, Live Nation
Entertainment, Inc., Case No. 2:24-cv-04671 was transferred from
the U.S. District Court for the Central District of California, to
the U.S. District Court for the District of Montana on Oct. 9,
2024.
The District Court Clerk assigned Case No. 2:24-cv-00119-BMM to the
proceeding.
The nature of suit is stated as Other P.I. for Tort/Non-Motor
Vehicle.
Ticketmaster Entertainment, LLC -- https://www.ticketmaster.com/ --
is an American ticket sales and distribution company based in
Beverly Hills, California.[BN]
The Plaintiff is represented by:
Laura Grace Van Note, Esq.
Scott Edward Cole, Esq.
COLE & VAN NOTE
555 12th Street, Suite 1725, Suite 1725
Oakland, CA 94607
Phone: (510) 891-9800
Email: lvn@colevannote.com
sec@colevannote.com
The Defendants are represented by:
Raymond W. Stockstill, Esq.
PAUL HASTINGS LLP
515 South Flower Street 25th Floor
Los Angeles, CA 90071
Phone: (213) 683-6000
Fax: (213) 627-0705
Email: beaustockstill@paulhastings.com
TICKETMASTER LLC: Ryan Suit Transferred to D. Montana
-----------------------------------------------------
The case captioned as Cynthia Ryan, Rosalia Garcia, on behalf of
themselves and all others who are similarly situated v.
Ticketmaster LLC, Live Nation Entertainment, Inc., Case No.
2:24-cv-04482 was transferred from the U.S. District Court for the
Central District of California, to the U.S. District Court for the
District of Montana on Oct. 9, 2024.
The District Court Clerk assigned Case No. 2:24-cv-00114-BMM to the
proceeding.
The nature of suit is stated as Other Contract.
Ticketmaster Entertainment, LLC -- https://www.ticketmaster.com/ --
is an American ticket sales and distribution company based in
Beverly Hills, California.[BN]
The Plaintiffs are represented by:
Ryan J. Clarkson, Esq.
Yana A. Hart, Esq.
Tiara Avaness, Esq.
CLARKSON LAW FIRM PC
22525 Pacific Coast Highway
Malibu, CA 90265
Phone: (213) 788-4050
Fax: (213) 788-4070
Email: rclarkson@clarksonlawfirm.com
yhart@clarksonlawfirm.com
tavaness@clarksonlawfirm.com
- and -
Steven A. Schwartz, Esq.
CHIMICLES SCHWARTZ KRINER AND DONALDSON-SMITH LLP
361 West Lancaster Avenue
Haverford, PA 19041-0100
Phone: (610) 642-8500
Fax: (610) 649-3633
Email: sas@chimicles.com
The Defendants are represented by:
Eric D. Stolze, Esq.
William K Whitner, Esq.
PAUL HASTINGS LLP
1170 Peachtree Street, N.E., Suite 100
Atlanta, GA 30309
Phone: (404) 815-2400
Fax: (404) 815-2424
Email: ericstolze@paulhastings.com
kwhitner@paulhastings.com
- and -
James Michael Pearl, Esq.
PAUL HASTINGS LLP
1999 Avenue of the Stars, 27th Floor
Los Angeles, CA 90067
Phone: (310) 620-5700
Fax: (310) 620-5899
Email: jamespearl@paulhastings.com
- and -
D. Scott Carlton, Esq.
Raymond W. Stockstill, Esq.
PAUL HASTINGS LLP
515 South Flower Street 25th Floor
Los Angeles, CA 90071
Phone: (213) 683-6000
Fax: (213) 627-0705
Email: scottcarlton@paulhastings.com
beaustockstill@paulhastings.com
TICKETMASTER LLC: Spencer Suit Transferred to D. Montana
--------------------------------------------------------
The case captioned as Shannon Spencer, Gerry McAuley, Ryan Jossart,
individually and on behalf of all others similarly situated v.
Ticketmaster LLC, Live Nation Entertainment, Inc., Case No.
2:24-cv-05760 was transferred from the U.S. District Court for the
Central District of California, to the U.S. District Court for the
District of Montana on Oct. 9, 2024.
The District Court Clerk assigned Case No. 2:24-cv-00125-BMM to the
proceeding.
The nature of suit is stated as Other Contract.
Ticketmaster Entertainment, LLC -- https://www.ticketmaster.com/ --
is an American ticket sales and distribution company based in
Beverly Hills, California.[BN]
The Plaintiffs are represented by:
John J. Nelson, Esq.
MILBERG COLEMAN BRYSON PHILLIPS GROSSMAN PLLC
402 W. Broadway, Suite 1760
San Diego, CA 92101
Phone: (858) 209-6941
Fax: (865) 522-0049
Email: jnelson@milberg.com
- and -
Kennedy M. Brian
William B. Federman
FEDERMAN AND SHERWOOD
10205 North Pennsylvania Avenue
Oklahoma City, OK 73120
Phone: (405) 235-1560
Email: kpb@federmanlaw.com
wbf@federmanlaw.com
The Defendants are represented by:
D. Scott Carlton, Esq.
Raymond W. Stockstill, Esq.
PAUL HASTINGS LLP
515 South Flower Street 25th Floor
Los Angeles, CA 90071
Phone: (213) 683-6000
Fax: (213) 627-0705
Email: scottcarlton@paulhastings.com
beaustockstill@paulhastings.com
- and -
James Michael Pearl, Esq.
PAUL HASTINGS LLP
1999 Avenue of the Stars, 27th Floor
Los Angeles, CA 90067
Phone: (310) 620-5700
Fax: (310) 620-5899
Email: jamespearl@paulhastings.com
TICKETMASTER LLC: Xian Suit Transferred to D. Montana
-----------------------------------------------------
The case captioned as Christina Xian, on behalf of herself and all
others similarly situated v. Ticketmaster LLC, Live Nation
Entertainment, Inc., Case No. 2:24-cv-04726 was transferred from
the U.S. District Court for the Central District of California, to
the U.S. District Court for the District of Montana on Oct. 9,
2024.
The District Court Clerk assigned Case No. 2:24-cv-00122-BMM to the
proceeding.
The nature of suit is stated as Other Contract.
Ticketmaster Entertainment, LLC -- https://www.ticketmaster.com/ --
is an American ticket sales and distribution company based in
Beverly Hills, California.[BN]
The Plaintiffs are represented by:
John J. Nelson, Esq.
MILBERG COLEMAN BRYSON PHILLIPS GROSSMAN PLLC
402 W. Broadway, Suite 1760
San Diego, CA 92101
Phone: (858) 209-6941
Fax: (865) 522-0049
Email: jnelson@milberg.com
- and -
Mason Adams Barney, Esq.
Tyler J. Bean, Esq.
SIRI & GLIMSTAD LLP
745 Fifth Avenue, Suite 500
New York, NY 10151
Phone: (212) 532-1091
Email: mbarney@sirillp.com
tbean@sirillp.com
The Defendants are represented by:
D. Scott Carlton, Esq.
Raymond W. Stockstill, Esq.
PAUL HASTINGS LLP
515 South Flower Street 25th Floor
Los Angeles, CA 90071
Phone: (213) 683-6000
Fax: (213) 627-0705
Email: scottcarlton@paulhastings.com
beaustockstill@paulhastings.com
- and -
James Michael Pearl, Esq.
PAUL HASTINGS LLP
1999 Avenue of the Stars, 27th Floor
Los Angeles, CA 90067
Phone: (310) 620-5700
Fax: (310) 620-5899
Email: jamespearl@paulhastings.com
TOTAL SAFETY: Fails to Protect Personal Info, Incorvaia Says
------------------------------------------------------------
GIUSEPPE INCORVAIA, individually and on behalf of others similarly
situated, Plaintiff v. TOTAL SAFETY CONSULTING, LLC, Defendant,
Case No. 2:24-cv-09547 (D.N.J., Sept. 30, 2024) is an action on
behalf of the Plaintiff and all other similarly situated victims as
a result of a recent cyberattack and data breach involving
personally identifiable information.
Total Safety Consulting, LLC provides consulting services. The
Company offers site safety management, fire safety, environmental
health, and technical training services. TSC serves customers in
the State of New Jersey. In 2023, an unknown and unauthorized
criminal actor gained access to TSC's network and exfiltrated, at a
minimum, name, Social Security number, driver's license number,
financial account information, and payment card information.
As a result of the alleged Data Breach, the Plaintiff and Class
Members suffered injury and ascertainable losses in the form of the
present and imminent threat of fraud and identity theft, loss of
the benefit of their bargain, out-of-pocket expenses, loss of value
of their time reasonably incurred to remedy or mitigate the effects
of the attack, and the loss of, and diminution in, value of their
personal information, says the suit.
The Plaintiff brings this class action lawsuit on behalf of those
similarly situated to address Defendant's inadequate safeguarding
of Class Members' PII that Defendant collected and maintained, and
for failing to provide timely and adequate notice to Plaintiff and
other Class Members that their information had been subject to the
unauthorized access by an unknown third party.[BN]
The Plaintiff is represented by:
Leanna A. Loginov, Esq.
SHAMIS & GENTILE P.A.
14 NE 1st Ave., Suite 705
Miami, FL 33132
Telephone: (305) 479-2299
E-mail: lloginov@shamisgentile.com
TRUE CHOICE: Knueppel Class Action Dismissed with Prejudice
-----------------------------------------------------------
In the class action lawsuit captioned as PERLA KNUEPPEL, v. TRUE
CHOICE LLC and MED ADVANTAGE ADVISORS, LLC, Case No.
6:24-cv-01521-JSS-LHP (M.D. Fla.), the Hon. Judge Julie Sneed
entered an order dismissing Knueppel case with prejudice.
-- The parties shall bear their own costs and attorney's fees.
-- Any pending motions are denied as moot.
-- The Clerk is directed to terminate any pending deadlines and
thereafter close this case.
The Plaintiff filed a Notice of Dismissal seeking to dismiss this
putative class action with prejudice as to Plaintiff's individual
claim and without prejudice as to any other potential member of the
putative class's right to bring claims. Upon review of the docket,
none of the Defendants have filed an answer or motion for summary
judgment in this matter.
The Plaintiff represents that she reached a settlement with
Defendants as to her claims. Additionally, no other class members
have appeared in this action. Federal Rule of Civil Procedure
23(e), states that a "certified class" or a "class proposed to be
certified for purposes of settlement" may be voluntarily dismissed
only with the court's approval.
Since the putative class has not been certified and no other class
member has appeared, the court does not need to approve Plaintiff's
voluntary dismissal. Further, since this dismissal only binds
Plaintiff as the proposed class representative, the court does not
need to dismiss without prejudice any potential claims of class
members who have not appeared.
True Choice is an insurance agency that provides medicare
information services.
A copy of the Court's order dated Oct. 7, 2024, is available from
PacerMonitor.com at https://urlcurt.com/u?l=KMKLQj at no extra
charge.[CC]
TWO BUDS: Website Not Accessible to Blind, Robles Suit Alleges
--------------------------------------------------------------
PRIMITIVO ROBLES, on behalf of himself and all others similarly
situated v. TWO BUDS ENTERPRISE, INC. d/b/a TWO BUDS DISPENSARY,
Case No. 1:24-cv-07586 (S.D.N.Y., Oct. 7, 2024) sues the Defendant
for its failure to design, construct, maintain, and operate the
Defendant's Website, www.twobudsdispensary.nyc, to be fully
accessible to and independently usable by the Plaintiff and other
blind or visually-impaired people, under the Americans with
Disabilities Act.
The Plaintiff discovered Defendant's Website around Sept. 21, 2024,
as a result of a glowing recommendation by a close friend who had
been aware of Plaintiff's condition, and the potential benefits and
uses of marijuana and related products. Therefore, on this same
day, the Plaintiff accessed the Defendant's Website for the first
time with a sighted relative and was very impressed with the
companies thoroughness of each product sold online, detailing each
of its unique characteristics.
However, when attempting to discover crucial medical information
about this product and others with similar properties from the
Website including any potential contraindications, the Plaintiff
was unable to discern any further information other than what was
contained within the Product Tile, as a result of the pervasive
access barriers. The lack of this crucial information caused the
Plaintiff extreme anxiety and depression, because he was very
interested in utilizing this product to combat his illness, the
suit says.
Because simple compliance with the WCAG 2.1 Guidelines would
provide Plaintiff and other visually-impaired consumers with equal
access to the Website, the Plaintiff alleges that the Defendant has
engaged in acts of intentional discrimination.
The Plaintiff seeks a permanent injunction to cause a change in the
Defendant's corporate policies, practices, and procedures so that
the Defendant's Website will become and remain accessible to blind
and visually-impaired consumers.
Two Buds offers a diverse selection of cannabis products, including
flower, edibles, concentrates, and more.[BN]
The Plaintiff is represented by:
Jon L. Norinsberg, Esq.
Bennitta L. Joseph, Esq.
JOSEPH & NORINSBERG, LLC
110 East 59th Street, Suite 2300
New York, NY 10022
Telephone: (212) 227-5700
Facsimile: (212) 656-1889
E-mail: jon@norinsberglaw.com
bennitta@employeejustice.com
UBER TECHNOLOGIES: Gonzalez Sues Over Fraudulent IRS Info Returns
-----------------------------------------------------------------
JOSE GONZALEZ, individually, and on behalf of other members of the
general public similarly situated v. UBER TECHNOLOGIES, INC., and
DOES 1-10, inclusive, Case No. 1:24-cv-01204-CDB (E.D. Cal., Oct.
7, 2024) is a class action complaint against the Defendant to stop
Defendant's practice of submitting fraudulent information returns
with the Internal Revenue Service for a nationwide class of
individuals ("Class Members") who the Defendant reported earned
income while working as independent contractors for the Defendant,
when such people did not in fact do any work for the Defendant.
In February of 2020, the Plaintiff unexpectedly received a form
1099-MISC from the Defendant, which indicated that it had paid him
approximately $6,000 in nonemployment compensation. The Plaintiff
immediately filed an identity theft report with the Federal Trade
Commission, and reached out to the Defendant for an explanation.
The suit contends that the Defendant allowed an unknown person to
work for it as a rideshare or delivery driver using the Plaintiff's
personal information without adequately verifying that the person
submitting the Plaintiff's information was actually the Plaintiff.
Thus, unknowing individuals who have no affiliation with the
Defendant, such as Plaintiff, are stuck with an unexpected income
tax bill for money they never received.
The Plaintiff alleges that the Defendant submitted a fraudulent
Form 1099-K to the IRS claiming that the Plaintiff had earned in
excess of $50,000 from the Defendant as an independent contractor
when, in fact, the Plaintiff had never received any money from the
Defendant whatsoever.
In January of 2024, the Plaintiff received a notice from the
California Franchise Tax Board indicating that it believed that the
Plaintiff owed back taxes in the amount of $3,600 for income he
received from the Defendant in 2019. The Plaintiff is now dealing
with the Franchise Tax Board, as he did with the IRS, to correct
this issue.
Had Defendant properly verified the identities of the individuals
who drive for it, and submitted correct information returns with
the IRS, none of this would have ever happened, the lawsuit
asserts.
Uber provides ride-hailing services, courier services, food
delivery, and freight transport.[BN]
The Plaintiff is represented by:
Todd M. Friedman, Esq.
Adrian R. Bacon, Esq.
Matthew R. Snyder, Esq.
LAW OFFICES OF TODD M. FRIEDMAN, P.C.
21031 Ventura Blvd., Suite 340
Woodland Hills, CA 91364
Telephone: (323) 306-4234
Facsimile: 866-633-0228
E-mail: tfriedman@toddflaw.com
abacon@toddflaw.com
msnyder@toddflaw.com
UNITED STATES: Ritter Files Suit in U.S. Ct. of Federal Claims
--------------------------------------------------------------
A class action lawsuit has been filed USA. The case is styled as
Tyrone Ritter, on behalf of himself and individuals similarly
situated v. USA, Case No. 1:24-cv-01608-SSS (U.S. Ct. of Federal
Claims., Oct. 9, 2024).
The nature of suit is stated as Civilian Pay – FLSA.
The U.S. -- https://www.usa.gov/ -- is a country of 50 states
covering a vast swath of North America, with Alaska in the
northwest and Hawaii extending the nation's presence into the
Pacific Ocean.[BN]
The Plaintiffs are represented by:
Andrew Frisch, Esq.
MORGAN & MORGAN, P.A.
8151 Peters Road, Suite 4000
Plantation, FL 33324
Phone: (954) 318-0268
Email: afrisch@forthepeople.com
WALDEN UNIVERSITY: Carroll Seeks Final OK of Settlement
--------------------------------------------------------
In the class action lawsuit captioned as Aljanal Carroll, Claudia
Provost Charles, Tiffany Fair, and Tareion Fluker, v. Walden
University, LLC, and Walden e-Learning, LLC, Case No.
1:22-cv-00051-JRR (D. Md.), the Plaintiffs ask the Court to enter
an order, pursuant to Federal Rule of Civil Procedure 23:
(1) granting final approval of the parties' proposed Settlement
Agreement;
(2) certifying a settlement class; and
(3) approving an award of attorneys' fees and costs to
Plaintiffs'
counsel.
The Defendants do not oppose the Plaintiffs' motion, the Plaintiffs
said.
Walden is a private for-profit online university headquartered in
Minneapolis, Minnesota.
A copy of the Plaintiffs' motion dated Oct. 8, 2024, is available
from PacerMonitor.com at https://urlcurt.com/u?l=bMnDYz at no extra
charge.[CC]
The Plaintiffs are represented by:
Alexa T. Milton, Esq.
Glenn Schlactus, Esq.
Tara K. Ramchandani, Esq.
Lila R. Miller, Esq.
Edward K. Olds, Esq.
RELMAN COLFAX PLLC
1225 19th St. NW Suite 600
Washington, DC 20036
Telephone: (202) 728-1888
Facsimile: (202) 728-0848
E-mail: amilton@relmanlaw.com
gschlactus@relmanlaw.com
tramchandani@relmanlaw.com
lmiller@relmanlaw.com
tolds@relmanlaw.com
- and -
Eric Rothschild, Esq.
NATIONAL STUDENT LEGAL
DEFENSE NETWORK
1701 Rhode Island Ave., NW
Washington, DC 20036
E-mail: eric@defendstudents.org
WALMART INC: Court Directs Filing of Discovery Plan in Mejia Suit
-----------------------------------------------------------------
In the class action lawsuit captioned as Mejia v. Walmart Inc.,
Case No. 1:24-cv-01316-JBM-JEH (C.D. Ill.), the Hon. Judge Jonathan
E. Hawley entered a standing order as follows:
-- Rule 16 scheduling conference
The Court will set a Rule 16 scheduling conference
approximately
30 days after the answer or other responsive pleading is
filed.
The conference will generally be conducted by telephone.
-- Discovery plan
The discovery plan shall be filed with the Court at least
three
calendar days before the Rule 16 scheduling conference.
-- Waiver of the Rule 16 scheduling conference
If the parties agree on all matters contained in the
discovery
plan, then the parties may waive the Rule 16 scheduling
conference. To do so, the parties shall indicate in the
discovery that the parties agree upon all maters contained
within the discovery plan, and they request that the Rule 16
scheduling conference be cancelled.
-- Failure of counsel to attend a scheduled telephone hearing
For the convenience of counsel, the Court conducts most
hearings
by telephone when possible. Counsel's failure to appear for a
telephone hearing will be treated as a failure of counsel to
appear for an in-person hearing.
-- Discovery disputes brought to the Court's attention after the
discovery deadline has already passed
The parties may not raise a discovery dispute with the Court
after the relevant discovery deadline has passed; all
discovery
disputes must be brought to the Court's attention before the
relevant discovery deadline passes. Any discovery disputes
raised with the Court after the expiration of the relevant
discovery deadline shall be deemed waived by the Court, even
if
the parties agreed to conduct discovery after the relevant
discovery deadline has passed. If the parties agree to
conduct
discovery after the expiration of a deadline set by the
Court,
they must still file a motion requesting that the Court move
that deadline as agreed by the parties in order to avoid any
subsequent discovery disputes being deemed waived.
-- Settlement conferences and mediation
The parties are encouraged to seek a settlement conference or
mediation with a magistrate judge. Where parties request a
settlement conference or mediation in a case referred to
Judge
Hawley, Judge Hawley will conduct said conference or
mediation.
Walmart is an American multinational retail corporation that
operates a chain of hypermarkets and department stores.
A copy of the Court's order dated Oct. 7, 2024, is available from
PacerMonitor.com at https://urlcurt.com/u?l=w5YqIU at no extra
charge.[CC]
WALMART INC: Hansbrough Files Suit in W.D. Arkansas
---------------------------------------------------
A class action lawsuit has been filed against Walmart Inc. The case
is styled as Tiffine Hansbrough, Shawn Kirchner, individually and
on behalf of all others similarly situated v. Walmart Inc., Case
No. 5:24-cv-05214-TLB (W.D. Ark., Oct. 9, 2024).
The nature of suit is stated as Tort Product Liability.
Walmart Inc. -- https://corporate.walmart.com/ -- is an American
multinational retail corporation that operates a chain of
hypermarkets.[BN]
The Plaintiffs are represented by:
James Allen Carney, Esq.
CARNEY BATES & PULLIAM, PLLC
One Allied Drive, Ste 1400
Little Rock, AR 72202
Phone: (501) 312-8500
Fax: (501) 312-8505
Email: acarney@cbplaw.com
WELLS FARGO: Matula ERISA Suit Moved From California to Minnesota
-----------------------------------------------------------------
In the lawsuit titled THOMAS O. MATULA, JR., individually and on
behalf of those similarly situated, Plaintiff v. WELLS FARGO &
COMPANY, HUMAN RESOURCES COMMITTEE OF THE BOARD OF DIRECTORS OF
WELLS FARGO, WELLS FARGO EMPLOYEE BENEFIT REVIEW COMMITTEE; and
DOES 1-10 INCLUSIVE, Defendants, Case No. 3:24-cv-03504-WHA (N.D.
Cal.), Judge William Alsup of the U.S. District Court for the
Northern District of California transfers the action to the U.S.
District Court for the District of Minnesota.
In this putative class action under the Employee Retirement Income
Security Act, the Plaintiff and the Defendants have stipulated to
transfer venue pursuant to 28 U.S.C. Section 1440(a). After
reviewing the stipulation, the Court grants both side's stipulation
and transfers this action to the District of Minnesota.
Plaintiff Thomas Matula Jr. worked for Wells Fargo in California
and was enrolled in Wells Fargo's 401k Plan ("the Plan") which
defined Wells Fargo employee pension benefits. The Plan was funded
by a combination of withheld employee earnings and contributions by
the employer, which were then deposited into the Plan's trust
fund.
The Plaintiff alleges that the Defendants forfeited nonvested plan
assets for its own benefit to reduce future employer contributions,
rather than for the benefit of Plan participants. In doing so, the
Plaintiff alleges that the Defendants have placed its own interests
above the interests of the Plan and its participants.
In June 2024, the Plaintiff filed a putative class action in this
district alleging a breach of fiduciary duty, breach of ERISA's
anti-inurement provision, engaged in transactions prohibited by
ERISA, and failure to monitor the individuals to whom Wells Fargo
had delegated fiduciary responsibilities.
The Plan contains a provision which states that all controversies,
disputes, and claims arising hereunder will be submitted to the
District of Minnesota, except as otherwise provided in the Trust
Agreement. Further, the Plan is administered in the state of
Minnesota. Both sides have now filed a stipulation to transfer
venue to the district of Minnesota.
Judge Alsup notes that neither side alleges fraud or overreaching
with respect to venue, nor is either side contesting the
application of this forum-selection clause. This order finds that
enforcing the forum-selection clause would not deprive the
Plaintiffs their day in Court because this forum-selection clause
effectively guarantees venue in a federal court.
As this order will explore in due course, Judge Alsup says the
enforcement of this forum-selection clause would not contravene
public policy. Therefore, this order finds that the clause itself
is valid.
Judge Alsup finds that court congestion in this district is
relatively similar to that of the District of Minnesota. Likewise,
given that this Plan is administered in Minnesota, this order finds
that Minnesota courts have an interest in resolving this action.
Lastly, the court of appeals has recognized that pushing all
actions of the Plan in one federal court would encourage uniformity
in the decisions interpreting the plan. This uniformity would, in
turn, decrease costs and further ERISA's goal of providing low-cost
plans. Thus, this order finds that the Plan contains a valid forum
selection clause and that ERISA permits both sides to enforce that
clause.
Accordingly, the Court grants the stipulation to transfer venue to
the District of Minnesota pursuant to 28 U.S.C. Section 1404(a).
The Clerk is directed to transfer this action to the District of
Minnesota.
A full-text copy of the Court's Order is available at
https://tinyurl.com/yu9ead46 from PacerMonitor.com.
WEST BEND: Court Directs Filing of Discovery Plan in Stormy Suit
----------------------------------------------------------------
In the class action lawsuit captioned as Stormy Creek LLC, v. West
Bend Mutual Insurance Company, Case No. 1:24-cv-01250-JES-JEH (C.D.
Ill.), the Hon. Judge Jonathan E. Hawley entered a standing order
as follows:
-- Rule 16 scheduling conference
The Court will set a Rule 16 scheduling conference
approximately
30 days after the answer or other responsive pleading is
filed.
The conference will generally be conducted by telephone.
-- Discovery plan
The discovery plan shall be filed with the Court at least
three
calendar days before the Rule 16 scheduling conference.
-- Waiver of the Rule 16 scheduling conference
If the parties agree on all matters contained in the
discovery
plan, then the parties may waive the Rule 16 scheduling
conference. To do so, the parties shall indicate in the
discovery that the parties agree upon all maters contained
within the discovery plan, and they request that the Rule 16
scheduling conference be cancelled.
-- Failure of counsel to attend a scheduled telephone hearing
For the convenience of counsel, the Court conducts most
hearings
by telephone when possible. Counsel's failure to appear for a
telephone hearing will be treated as a failure of counsel to
appear for an in-person hearing.
-- Discovery disputes brought to the Court's attention after the
discovery deadline has already passed
The parties may not raise a discovery dispute with the Court
after the relevant discovery deadline has passed; all
discovery
disputes must be brought to the Court's attention before the
relevant discovery deadline passes. Any discovery disputes
raised with the Court after the expiration of the relevant
discovery deadline shall be deemed waived by the Court, even
if
the parties agreed to conduct discovery after the relevant
discovery deadline has passed. If the parties agree to
conduct
discovery after the expiration of a deadline set by the
Court,
they must still file a motion requesting that the Court move
that deadline as agreed by the parties in order to avoid any
subsequent discovery disputes being deemed waived.
-- Settlement conferences and mediation
The parties are encouraged to seek a settlement conference or
mediation with a magistrate judge. Where parties request a
settlement conference or mediation in a case referred to
Judge
Hawley, Judge Hawley will conduct said conference or
mediation.
West Bend provides property & casualty insurance products to
individuals.
A copy of the Court's order dated Oct. 8, 2024, is available from
PacerMonitor.com at https://urlcurt.com/u?l=kwgROw at no extra
charge.[CC]
WEST THOMAS: Class Cert Bid Filing Amended to June 1, 2025
----------------------------------------------------------
In the class action lawsuit captioned as JOHN FORRETT, individually
and on behalf of those similarly situated, v. WEST THOMAS PARTNERS,
LLC d/b/a GFB, Case No. 5:22-cv-02048-NC (N.D. Cal.), the Hon.
Judge Nathanael Cousins entered an order setting amended case
schedule as follows:
1. Discovery is stayed until: Dec. 15, 2024
2. The last day to complete fact April 3, 2025
discovery shall be:
3. The last date for disclosure of April 17, 2025
expert reports shall be:
4. The last date for disclosure of May 17, 2025
rebuttal expert reports shall be:
5. Plaintiffs' class certification June 1, 2025
motion shall be due:
6. Defendant's opposition to July 1, 2025
Plaintiffs' class certification
brief shall be due:
7. Plaintiffs' reply brief for class July 15, 2025
certification shall be due:
8. The last date to complete expert July 25, 2025
discovery shall be:
9. The last date to file Daubert motions Aug. 1, 2025
(limited to one omnibus motion per side)
shall be:
A copy of the Court's order dated Oct. 7, 2024, is available from
PacerMonitor.com at https://urlcurt.com/u?l=2q29DH at no extra
charge.[CC]
XCEL ENERGY: Bifurcated Discovery Appropriate, Court Says
---------------------------------------------------------
In the class action lawsuit captioned as DONNIE PARKER d/b/a SPRING
CREEK RANCH, V. XCEL ENERGY SERVICES, INC., et al., Case No.
2:24-cv-00078-Z-BV (N.D. Tex.), the Hon. Judge Amanda Burch entered
an order concluding that bifurcated discovery is appropriate in the
case.
Ultimately, the likelihood that full discovery will ( 1) delay the
class certification decision and (2) prejudice Defendants make
conducting full-merits discovery inappropriate at this early stage.
But if, after beginning discovery, either party determines that
merits discovery is necessary to adequately brief the class
certification issue, that party may move the Court to reevaluate
bifurcation.
The Plaintiff in a putative class action for "billions of dollars
in losses" suffered in a fire that Parker maintains was caused by
Defendants' negligence in maintaining a utility pole.
The parties filed competing proposed scheduling orders with a
primary disagreement concerning how discovery should proceed. For
the reasons explained below,
Parker's suit arises out of the Feb. 26, 2024, Smokehouse Creek
Fire- the "largest wildfire in Texas history[.]"
The fire purportedly "burned over one-million acres" and "destroyed
numerous properties and thousands of livestock." Parker alleges
that his working cattle operation at Spring Creek Ranch was one of
the impacted properties, having "lost approximately 90% of its
available grasses and rangeland," and suffering the destruction of
buildings, equipment, fencing, and livestock. Id. at 4-5. His
"surviving livestock had to be relocated to rented pastures due to
the barren landscape."
Xcel offers wind, solar, biomass, hydro, and other renewable energy
grants.
A copy of the Court's order dated Oct. 7, 2024, is available from
PacerMonitor.com at https://urlcurt.com/u?l=RiIqkQ at no extra
charge.[CC]
XCEL ENERGY: Filing for Class Cert Bid in Parker Due Jan. 31, 2025
------------------------------------------------------------------
In the class action lawsuit captioned as DONNIE PARKER d/b/a SPRING
CREEK RANCH, V. XCEL ENERGY SERVICES, INC., et al., Case No.
2:24-cv-00078-Z-BV (N.D. Tex.), the Hon. Judge Amanda Burch entered
a class certification scheduling order as follows:
-- To the extent they have not already done so, Nov. 8, 2024
the parties shall exchange initial
disclosures no later than:
-- All motions to join other parties must be Dec. 8, 202
filed no later than:
-- All motions seeking to amend pleadings Dec. 8, 2024
must be filed no later than:
-- Class Certification Discovery: Jan. 17,
2025
-- Plaintiffs must designate experts by: Nov. 27,
2024
-- Defendants must designate experts by: Dec. 13,
2024
-- Rebuttal Experts on Class Certification: Dec. 27,
2024
-- Plaintiffs must file a motion for class Jan. 31,
2025
certification with supporting evidence,
including expert testimony, if any, and
supporting brief, by:
-- Defendants' response to the motion is due Feb. 28,
2025
by:
-- Any reply is due: March 21,
2025
-- The parties shall jointly select a Jan. 14,
2025
mediator and mediate on or before:
Xcel offers wind, solar, biomass, hydro, and other renewable energy
grants.
A copy of the Court's order dated Oct. 7, 2024, is available from
PacerMonitor.com at https://urlcurt.com/u?l=rJkInL at no extra
charge.[CC]
ZARBEE'S INC: Reply in Support of Class Cert Bid Due Dec. 20
------------------------------------------------------------
In the class action lawsuit captioned as KRYSTAL LOPEZ, and DAMANY
BROWNE, individually and on behalf of all others similarly
situated, v. ZARBEE'S, INC., Case No. 3:22-cv-04465-CRB (N.D.
Cal.), the Parties ask the Court to enter the proposed deadlines as
follows:
1. Plaintiffs' reply in support of Plaintiffs' motion for class
certification is due on Dec. 20, 2024;
2. Plaintiffs' opposition to the Weir Daubert motion is due
Dec. 20, 2024;
3. Zarbee's reply in support of the Weir Daubert motion is due
on
Jan. 21, 2025;
4. The Hearing on (i) Plaintiffs' motion for class certification
and (ii) Zarbee's Weir Daubert motion is continued to Jan.
31,
2025.
Zarbee's produces pharmaceutical products.
A copy of the Parties' motion dated Oct. 8, 2024, is available from
PacerMonitor.com at https://urlcurt.com/u?l=Gf582b at no extra
charge.[CC]
The Plaintiffs are represented by:
Jonas B. Jacobson, Esq.
Grace Bennett, Esq.
Simon Franzini, Esq.
DOVEL & LUNER, LLP
201 Santa Monica Blvd., Suite 600
Santa Monica, CA 90401
Telephone: (310) 656-7066
Facsimile: (310) 656-7069
E-mail: jonas@dovel.com
grace@dovel.com
simon@dovel.com
The Defendant is represented by:
Joshua Kipnees, Esq.
Steven A. Zalesin, Esq.
PATTERSON BELKNAP WEBB & TYLER
LLP
1133 Avenue of the Americas
New York, NY 10036
Telephone: (212) 336-2110
E-mail: jkipnees@pbwt.com
sazalesin@pbwt.com
- and -
Gary T. Lafayette, Esq.
Brian H. Chun, Esq.
LAFAYETTE & KUMAGAI LLP
1300 Clay Street, Suite 810
Oakland, CA 94612
Telephone: (415) 357-4600
Facsimile: (415) 357-4605
E-mail: glafayette@lkclaw.com
bchun@lkclaw.com
*********
S U B S C R I P T I O N I N F O R M A T I O N
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