/raid1/www/Hosts/bankrupt/CAR_Public/190620.mbx
C L A S S A C T I O N R E P O R T E R
Thursday, June 20, 2019, Vol. 21, No. 123
Headlines
3M COMPANY: Cadrette et al. Sue over Hazardous AFFF Products
3M COMPANY: Faces Craig Suit Over Defective Combat Arms Earplugs
400 CORP: Faces Weinstein Suit in Northern District of Georgia
ALBERTSON'S LLC: Raziano Labor Suit Removed to C.D. Cal.
ALEXANDER HOLDINGS: Tineo Labor Suit Seeks Unpaid Overtime Wages
ALLON TRANSPORTATION: Beltz Seeks Payment of Minimum Wage
ALLTRAN FINANCIAL: Faces Suit over Debt Collection Practices
AMERICAN BANKERS: Nationwide Class Claims in Garvey Suit Struck
AMPIO PHARMA: Shi Class Action Underway in California
ARKANSAS: Court Denies Bid to Certify Class in Lamar Suit
ASCENDANT MARKETING: Connor et al. Seek Unpaid Wages
AXA EQUITABLE: Brach Family Foundation Class Suit Ongoing
AXA EQUITABLE: Continues to Defend O'Donnell Class Action
BARRIER COMPLIANCE: Perez Seeks Overtime Pay for Off-the-Clock Work
BEDFORD, OH: Court Awards $41K in Restitution in Pund Suit
BERKSHIRE HILLS: Settlement Reached in Depositor's Class Suit
BERKSHIRE HILLS: SI Financial Shareholder Sues over Merger Deal
BJ'S WHOLESALE: Class Certification on Count I in Bugliaro Flipped
BLOUNT INTERNATIONAL: Sept. 9 Settlement Fairness Hearing Set
BMW NORTH: Faces Class Action Over N63 Oil Burning Defect
BRIDGETON LANDFILL: Bid to Remand Kitchin Suit to State Court OK'd
CALIFORNIA FACULTY: Brice Suit Moved to C.D. Calif.
CAPSTONE LOGISTICS: Bid for Summary Judgment in Furlough Granted
CARVANA LLC: Faces Schrenk Suit in California Superior Court
CHECKERS DRIVE-IN: Medgebow Seeks Approval of $3.46MM Settlement
CHESAPEAKE & DELAWARE: Reynolds Hits Illegal Tip Pool
CIRKUL INC: Thomas Seeks Unpaid Overtime Premiums
CLOUDERA INC: Christie Sues Over Securities Exchange Act Breach
CN TRANSPORTATION: Removes Rogers Suit to N.D. Illinois
COCRYSTAL PHARMA: Insurer Declines to Cover Costs in Pepe Suit
COMMUNITY ALTERNATIVES: Court Denies Certification in RICO Suit
CORE-MARK INT'L: Court Partly Grants Bid to Dismiss Brown FCRA Suit
CORECIVIC OF TN: Filing of Gonzalez Deal Approval Bid Due July 15
CORPUS CHRISTI, TX: Denial of Bid to Dismiss Trevino Suit Reversed
CREDIT CONTROL: Schwartz Suit Terminated
CSX TRANSPORTATION: Class Certification Sought in Diehl Suit
DIGNITY HEALTH: Submission of Klatt Settlement Docs Due July 1
DISTILL TABLE: Smith Hits Illegal Tip Pool, Seeks Minimum Pay
DRIVE SHACK: Wage-and-Hour Class Suit Ongoing
DUKE UNIVERSITY: Settles No-Poach Class Action for $54.5MM
ENDO INTERNATIONAL: Certification of Class Sought in SEB Suit
EQUIFAX INFORMATION: McKinney Sues over Debt Collection Practices
EVERI PAYMENTS: Removes Donahue Suit to N.D. Illinois
FD HOLDINGS: Court Dismisses M. Butt's FCRA Suit
FIAT CHRYSLER: Kelley et al. Suit Moved to N.D. California
FIRST AMERICAN: Sindaghatta Files Suit in S.D. California
FIRST FINANCIAL: Limitations Period Ruling in Delaney Suit Flipped
FIRST STUDENT: Terms of Rosario Suit Deal Found Fair & Reasonable
FISHER-PRICE INC: Flores Sues over Defective Infant Sleepers
FLEETCOR TECHNOLOGIES: Still Defends Georgia Class Action
FOODLINER INC: $1.2MM Settlement in Austin Suit Has Final Approval
GENERAL MOTORS: Hutchinson Sues over Defective Powertrain
GILEAD SCIENCES: Accused of HIV Meds Price-Rigging
GIRARD SYSTEMS: Faces Rogers Suit in Orange California
GOOGLE INC: Court Considers Cy Pres Settlement Challenge
GOOGLE LLC: Communication with DBM Advertisers Not Misleading
GRAND AMERICAN: Sued by Schantz-Tursi Over Unpaid Overtime
GTX INC: Defending Suits over Oncternal Therapeutics Merger
HAXTON MASONRY: Bid to Transfer Jimenez to Arizona Denied
HOME BUYERS: Arbitration Award Confirmation in Jones Recommended
ILE BIZARD-STE GENEVIEVE: Residents Mull Class Action Over Flood
INCLUSIVE EDUCATION: Faces Thorpe Suit in California State Court
INDIAN RIVER: $1.4MM Settlement in Cooley Suit Has Final Approval
INTERMEX WIRE: Has Made Unsolicited Calls, Sawyer Suit Claims
INTERNATIONAL PAPER: Class of Residents Certified in Slocum Suit
INTERNATIONAL PAPER: Ct. Won't Reconsider Bolton Case Dismissal
INTERNATIONAL PAPER: Jarrell Wins Class Certification Bid
INTERNATIONAL PAPER: Sanders' Bid to Certify Residents Class OK'd
INTUIT INC: Free Tax Filing Program Deceptive, Leon Claims
INVITEDHOME MANAGEMENT: Faces Reid ADA Suit in S.D. New York
J2 GLOBAL: Davis Neurology Class Suit Remanded to State Court
JAB HOLDING: Glaeser Sues over Unsolicited Tender Offer
JANI-KING OF PHILADELPHIA: Settlement in Myers Has Prelim Approval
JP BODEN: Faces Reid ADA Suit in Southern District of New York
KANDI TECHNOLOGIES: Bid to Dismiss Shareholder Class Suits Pending
KENTUCKY: Court Dismisses Class Suit Over Income Tax Imposition
KOHLBERG VENTURES: 9th Cir. Flips Dismissal of Wojciechowski Suit
LOUISIANA: AJ Moves to Certify Class of Medicaid Beneficiaries
LUCKY STORES: Bid to Remand Beasley to Calif. State Court Denied
LYNAS CORP: No Class Action After Funding Deal Fails
MAIDEN HOLDINGS: New Jersey Class Action Ongoing
MANCHESTER FARM: Faces Rojas et al. Suit in Montgomery Maryland
MDL 2741: Pearlson Suit Consolidated in Roundup Litigation
MDL 2741: Six Suits Consolidated in Roundup Liability Litigation
MEDLEY CAPITAL: Agreement Reached in Suit over Sierra Income Merger
MEDLEY CAPITAL: RICO Suits in Virginia & Pennsylvania Underway
MELINTA THERAPEUTICS: Appeal in Consolidated Class Suit Pending
MERCK SHARP: Supreme Court Allows Fosamax Class Action to Proceed
MOM365 INC: $400K Settlement in Hoover Suit Has Prelim Approval
MONEYGRAM INT'L: Continues to Defend Illinois Class Action
MONSANTO CO: Roundup Exposure Caused Lymphoma, Bourgeois Says
MONSANTO COMPANY: Downes Sues over Sale of Herbicide Roundup
MONSANTO COMPANY: Ehrhardt Sues over Sale of Herbicide Roundup
MONSANTO COMPANY: Gusler Sues over Sale of Herbicide Roundup
MONSANTO COMPANY: Guzman Sues over Sale of Herbicide Roundup
MONSANTO COMPANY: Johnson Sues over Sale of Herbicide Roundup
MONSANTO COMPANY: Ladd Sues over Sale of Herbicide Roundup
MONSANTO COMPANY: Long Sues over Sale of Herbicide Roundup
MONSANTO COMPANY: Masko Sues over Sale of Herbicide Roundup
MONSANTO COMPANY: Oneal Sues over Sale of Herbicide Roundup
MONSANTO COMPANY: Reger Sues over Sale of Herbicide Roundup
MONSANTO COMPANY: Smetana Suit Moved to N.D. California
MONSANTO COMPANY: Snell Sues over Sale of Herbicide Roundup
MONSANTO COMPANY: Strayhorn Sues over Sale of Herbicide Roundup
MT. PLEASANT: Faces Class Action Over Excessive Water Bill
MURRAY-DARLING: July 3 Hearing Set in Irrigators' Class Action
NAT'L ASSOCIATION: Files Motion to Dismiss Antitrust Class Action
NATIONAL SECURITIES: Court Denies Bid to Junk J. Ginzkey Suit
NATIONAL SECURITY: Ninth Circuit Appeal Filed in Jewel Class Suit
NATIONSTAR MORTGAGE: Alhassid FDCPA Suit Dismissal Affirmed in Part
NCL CORP: Continues to Defend Philips Class Suit in Florida
NEW YORK: No Decision in Subway Elevator Class Action v. MTA
NOLAN ENTERPRISES: De Angelis Moves to Certify Class of Dancers
NORTHROP GRUMMAN: Defends Expert Witness in 401(k) Fee Class Suit
OBALON THERAPEUTICS: Bid to Dismiss Consolidated Class Suit Pending
OCULAR THERAPEUTIX: Wins Dismissal of DEXTENZA Suit
ORANGE CORROSION: Hernandez Seeks Unpaid Wages & Benefits
PATERSON CAR EMPORIUM: Vidal Suit to Recover Unpaid Overtime
PENNSYLVANIA: Inmate Appeals to State Supreme Court
PHEAA: Love and Smith Sue over Student Loans in N.D. Georgia
POLARITYTE INC: Consolidated Securities Class Suit Ongoing in Utah
PROSHARES TRUST II: Amended Consolidated Complaint Due June 21
PROSPECT CHARTERCARE: Court Approves $11.9MM Deal in ERISA Suit
PURDUE PHARMA: Opioid Suit Remanded to Mass. State Court
PURDUE PHARMA: Roofers Local 149 Files RICO Suit in N.D. Ohio
QUILL LINCOLNSHIRE: Faces Reid Suit in Southern Dist. of New York
R.A. ROGERS: Challenger Sues over Debt Collection Practices
REWALK ROBOTICS: Pierce Atwood Discusses Denial of Bid to Amend
RICHFIELD HOSPITAL: Faces Knapp et al. Suit in Onondaga, NY Court
RIMROCK ENGINEERING: Homeowners File Class Suit Over Soil Issues
RINGCENTRAL INC: Hurley TCPA Class Action Ongoing
RINGCENTRAL INC: Supply Pro Seeks Supreme Court Review
RIOT BLOCKCHAIN: To Seek Dismissal of Takata & Klapper Suit
ROADRUNNER TRANSPORT: Gomez Labor Suit Removed to C.D. Cal.
ROSE ASSOCIATES: Olsen Files ADA Suit in E.D. New York
RUNNER SPORTS: Faces Reid Suit in Southern Dist. of New York
SAN JOAQUIN GENERAL: Franklin Seeks Pay for Off-the-Clock Work
SARBANAND FARMS: Court Denies Bid to Dismiss Rosas FLCA Suit
SCI DIRECT: $1.65-Mil. Romano Suit Settlement Wins Prelim. Approval
SERCO INC: Court Conditionally Certifies Class in Sandoval Suit
SERVICE COMPANIES: Mijares' Bid to Certify Cleaners Class Denied
SOUTH CONE: Faces Reid ADA Suit in Southern Dist. of New York
SSP AMERICA: Wilson-Davis Labor Suit Removed to C.D. Cal.
ST. LOUIS, MO: Seeks 8th Circuit Review of Ruling in Ahmad Suit
STAMPS.COM INC: Awaits Final Okay of Lopez-Dixon Case Settlement
STAMPS.COM INC: Continues to Defend Karinski Class Suit
STARKEY LABORATORIES: Beck et al. Allege Theft of ESOP Funds
STEAK N SHAKE: Court Partly Amends Judgment in Drake MMWL/FLSA Suit
STEAK N' SHAKE: Judge Cuts Attorneys Fees in Class Action
STERLING JEWELERS: Bagu Seeks Unpaid Wages for Hourly Employees
STONEMOR PARTNERS: Appeal in Anderson Class Suit Ongoing
STORED VALUE: Seeks 6th Cir. Review of Ruling in Humphrey Suit
SYNACOR INC: Bid to Dismiss New York Securities Suit Still Pending
SYNCHRONOSS TECH: Bid to Dismiss Amended NJ Complaint Underway
TOLTECA ENTERPRISES: Hackler Seeks Certification of FDCPA Class
TRAININGWHEEL: Conditional Certification of Freeman Class Endorsed
TREVENA INC: Continues to Defend Consolidated Class Suit in PA
TRUEACCORD LLC: Russo Files FCRA Suit in E.D. Pennsylvania
TRUECAR INC: Appeal in Gordon Rose Class Action Pending
TURTLE CREEK: Williams Files FDCPA Suit in S.D. Mississippi
TYSON FOODS: Cattle Price-Fixing Class Action Filed in Minnesota
U.S. HEALTHWORKS: Averts Class Action Over Background Checks
UNITED AIRLINES: Faces Ward Suit Over Wage and Hour Violations
VENKY'S FOOD: Socop Sues Over Denied Pay Slips, Overtime Pay
VERIZON COMMUNICATIONS: Kaufman Alleges Wrongful Debt Collections
VERMONT: West Moves to Certify Class of Inmates With Chronic HCV
WASTE MANAGEMENT: Texas Court Moves 5 FLSA Suits to Home States
WELLS FARGO: FHFA Says Disclosures over NovaStar Bonds Misleading
WEWORK WELLNESS: Olsen Files ADA Suit in S.D. New York
WILL COUNTY, IL: Dunn Seeks to Certify Detainees Class, Subclasses
WILLIAMS-SONOMA: Faces Migyanko ADA Suit in W.D. Pennsylvania
YANKEE CANDLE: Faces Bone Suit in District of Massachusetts
YELP INC: Securities Class Action Ongoing in California
ZALE DELAWARE: Fails to Pay Proper Wages, Leos Suit Claims
[*] South Africa Likely Ripe for Climate Change Class Action
*********
3M COMPANY: Cadrette et al. Sue over Hazardous AFFF Products
------------------------------------------------------------
A class action lawsuit against The 3M Company and other
manufacturers alleges that Defendants failed in their duty to warn
users, bystanders and sensitive receptors of the inherently
dangerous properties of their Aqueous Film Forming Foam (AFFF)
products.
Accoridng to the complaint, as part of the fire training exercises,
Wurtsmith Air Force Base (WAFB) used AFFF and other materials
containing Per- and Polyfluoroalkyl Substances ("PFAS"), including
perfluorooctanesulfonic acid ("PFOS") and related fluorochemicals
that can degrade to perfluorooctanoic acid ("PFOA") or PFOS.
While the base was operational, hazardous PFAS materials were
released into the environment, resulting in the contamination of
Plaintiffs' and putative Class Members' homes and persons.
Contaminants from WAFB and the surrounding area migrated beyond the
base's boundaries contaminating water sources in the city of Oscoda
reaching Plaintiffs' homes and causing them significant personal
injuries and property damage.
WAFB was closed in June 1993, after 70 years of operation as an
aviation support facility. The community of Oscoda is located
downgradient of WAFB. As a direct and proximate result of the use
of Defendants' AFFF products containing PFAS at WAFB, Oscoda's
drinking water supply has been contaminated with elevated levels of
PFAS. AFFF has been linked to the contamination of surface and
groundwater with PFOA, PFOS and other PFAS throughout the country,
the lawsuit says.
The Plaintiffs and putative Class Members receive their potable
water from private wells, or a municipal water provider. PFAS that
was used, and subsequently released from WAFB, have contaminated
numerous private wells relied upon by Plaintiffs and putative Class
Members.
The Defendants marketed and sold their products with knowledge that
large quantities of AFFF, containing toxic PFAS, would be stored in
fire suppressant systems and tanks on USAF Bases, including WAFB,
and that such systems and storage were used and maintained is such
a manner that dangerous chemicals would be released into the air,
soil, and groundwater.
The Putative Class represents past and present residents of Oscoda
who were exposed to drinking water contaminated with PFAS, and who
have suffered a bioaccumulation of PFAS, including but not limited
to PFOA and PFOS, in their bodies.
Wurtsmith Air Force Base ("WAFB") is located in Oscoda, Michigan,
Iosco County, approximately 170 miles north of Detroit. WAFB was
established in 1923 under the name Camp Skeel and operated as a
landing field and gunnery range. In 1942 the Camp was renamed
Oscoda AAF and became the home of the 134th Army Air Force Base
Fighter Unit in 1943.
The case is captioned as MICHAEL CADRETTE; MARK A. CLAEYS; LAURENCE
J. CURLEY; DAVID M. GREGORY; CHARLES A. RICKS; CHERI ALDRICH; DAVID
H. BROCK; LISA M. COLLINS; LORI K. CHILDERS; LORRINE COUCH-HART;
RICKY SEXTON; FREDERICK J. MASIC II; BARON CATON; LINDA A. COLE;
Individually and on behalf of all others similarly Situated
Plaintiffs, vs. THE 3M COMPANY, f/k/a Minnesota Mining and
Manufacturing, Co.; TYCO FIRE PRODUCTS L.P., successor in interest
to THE ANSUL COMPANY; BUCKEYE FIRE EQUIPMENT COMPANY; CHEMGUARD,
INC.; NATIONAL FOAM, INC., E.I DU PONT DE NEMOURS AND COMPANY,
individually and as successor in interest to DuPont Chemical
Solutions Enterprise, THE CHEMOURS COMPANY FC, L.L.C., individually
and as successor in interest to Dupont Chemical Solutions
Enterprise and DYNAX CORPORATION, the Defendants, Case No.
1:19-cv-11537-TLL-PTM (E.D. Mich., May 24, 2019).[BN]
Attorneys for the Plaintiffs:
Hunter J. Shkolnik, Esq.
Paul J. Napoli, Esq.
Tate J. Kunkle, Esq.
Patrick J. Lanciotti, Esq.
NAPOLI SHKOLNIK PLLC
360 Lexington Ave., 11th Floor
New York, NY, 10017
Telephone: (212) 397-1000
Facsimile: (646) 843-7603
E-mail: pnapoli@napolilaw.com
tkunkle@napolilaw.com
planciotti@napolilaw.com
3M COMPANY: Faces Craig Suit Over Defective Combat Arms Earplugs
----------------------------------------------------------------
ROBERT CRAIG v. 3M COMPANY, AEARO HOLDINGS, LLC, AEARO
INTERMEDIATE, LLC AEARO, LLC and AEARO TECHNOLOGIES, LLC, Case No.
3:19-cv-01509-MCR-GRJ (N.D. Fla., May 20, 2019), seeks damages from
3M and its subsidiary entities for injuries allegedly caused by the
use of 3M's defective Combat Arms Earplugs during military
service.
The case arises out of a multi-year, multi-million-dollar fraud
perpetrated on the United States Government and the men and women,
who served in the United States military ("U.S. military") by one
of the largest companies in the country, 3M (Minnesota Mining &
Manufacturing), according to the complaint. The Plaintiff asserts
that from approximately 2003 through 2015, 3M sold to the U.S.
military tens of thousands of defective earplugs, the dual-ended
Combat Arms Earplugs, version 2 ("Combat Arms Earplugs") for the
use of U.S. soldiers and service men and women in combat and
training.
3M Company is a Delaware corporation with its principal place of
business in St. Paul, Minnesota. 3M is one of the largest
companies in the United States and is in the business of designing,
manufacturing and selling worker safety products which include
hearing protection devices.
Aearo Holding LLC is a Delaware limited liability company with its
principal place of business in St. Paul, Minnesota. AHC was
formerly known as Aearo Holding Corp. and is a wholly owned
subsidiary of 3M Company.
Aearo Technologies LLC is a Delaware limited liability company with
its principal place of business in St. Paul. ATL is a subsidiary
of Aearo Holding LLC and 3M Company, and has operated under the
assumed business names "Aearo Company" and "Aearo Technologies."
Aearo Intermediate LLC is a Delaware limited liability company with
its principal place of business in Indianapolis, Indiana. ATI was
formerly known as Aearo Technologies, Inc. ATI is a subsidiary of
Aearo Holding LLC and 3M Company.
Aearo LLC is a Delaware limited liability company with its
principal place of business in Indianapolis. AL is a subsidiary of
Aearo Holding LLC and 3M Company.[BN]
The Plaintiff is represented by:
Michael W. Gaines, Esq.
Tim L. Bowden, Esq.
LAW OFFICES OF TIM BOWDEN
306 Northcreek Blvd., Suite 200
Goodlettsville, TN 37072
Telephone: (615) 859-1996
Facsimile: (615) 859-1921
E-mail: mwgaines01@gmail.com
bowden_law@bellsouth.net
400 CORP: Faces Weinstein Suit in Northern District of Georgia
--------------------------------------------------------------
A class action lawsuit has been filed against 400 Corp. The case is
captioned as Jeanne Weinstein individually, and on behalf of all
others similarly situated, the Plaintiff, vs. 400 Corp. doing
business as: The Ridge Great Steaks & Seafood and Stephen Campbell,
the Defendant, Case No. 2:19-cv-00105-RWS (N.D. Ga., May 24, 2019).
The suit alleges Fair Labor Standards Act violation. The case is
assigned to the Hon. Judge Richard W. Story.[BN]
Attorneys for the Plaintiff:
C. Andrew Head, Esq.
HEAD LAW FIRM, LLC - IL
4422 N. Ravenswood Ave.
Chicago, IL 60640
Telephone: (404) 924-4151
Facsimile: (404) 796-7338
E-mail: ahead@headlawfirm.com
ALBERTSON'S LLC: Raziano Labor Suit Removed to C.D. Cal.
--------------------------------------------------------
The case captioned Michael Raziano, Brian Traister and Chris
Valdez, on behalf of themselves and all others similarly situated,
Plaintiff, v. Albertson's, LLC and Does 1 through 50, Inclusive,
Defendants, Case No. 19STCV0957A (Cal. Super., March 21, 2019), was
removed to the United States District Court for the Central
District of California on May 20, 2019, under Case No.
19-cv-04373.
The Plaintiff seeks compensatory damages, economic and/or special
damages, penalties, restitution, unpaid wages and benefits,
attorneys' fees, costs and interest pursuant to California Labor
Code.[BN]
The Plaintiff is represented by:
Michael D. Singer, Esq.
Marta Manus, Esq.
COHELAN KHOURY & SINGER
605 C Street, Suite 200
San Diego, CA 92101
Telephone: (619) 595-3001
Facsimile: (619) 595-3000
Email: msineer@ckslaw.com
mmanus@ckslaw.com
- and -
Roger Carter, Esq.
THE CARTER LAW FIRM
23 Corporate Plaza Drive, Suite 150
Newport Beach, CA 92660
Telephone: (949) 254-7500/Facsimile: (949) 629-2501
Email: roeer@carterlawfmn.net
- and -
Marc H. Phelps, Esq.
THE PHELPS LAW GROUP
23 Corporate Plaza Drive, Suite 150
Newport Beach, CA 92660
Telephone: (949) 629-2533
Facsimile: (949) 629-2501
Email: marc@phelpslawgroup.com
Albertson's is represented by:
Tyler B. Runge, Esq.
Jeffrey K. Brown, Esq.
Ray Edward Boggess, Esq.
PAYNE AND FEARS LLP
Jamboree Center
4 Park Plaza, Suite 1100
Irvine, CA 92614
Tel: (949) 851-1100
Email: tbr@paynefears.com
jkb@paynefears.com
reb@paynefears.com
ALEXANDER HOLDINGS: Tineo Labor Suit Seeks Unpaid Overtime Wages
----------------------------------------------------------------
Rodolfo Tineo, individually and on behalf all other employees
similarly situated, Plaintiff, v. Alexander Holdings, LLC,
Alexander Holdings II, LLC, Ira Sumkin and Adrian "Doe,"
Defendants, Case No. 19-cv-02985 (E.D. N.Y., May 20, 2019), seeks
unpaid overtime compensation, unpaid "spread-of-hours" premium,
compensation for failure to provide wage notices at the time of
hiring and failure to provide paystubs, liquidated damages,
prejudgment and post-judgment interest and attorneys' fees and
costs pursuant to the Fair Labor Standards Act and New York Labor
Law including monetary damages and other relief.
Defendants operate several general contracting companies that serve
commercial and residential remodeling and construction projects in
and outside the State of New York. Tineo worked for them as a
general laborer. [BN]
Plaintiff is represented by:
Lorena Duarte, Esq.
HANG & ASSOCIATES, PLLC
136-20 38th Avenue, Suite 10G
Flushing, NY 11354
Tel: (718)353-8588
Email: lduarte@hanglaw.com
ALLON TRANSPORTATION: Beltz Seeks Payment of Minimum Wage
---------------------------------------------------------
GREG BELTZ, On behalf of himself and all other persons similarly
situated, the Plaintiff, v. ALLON TRANSPORTATION SERVICES, LLC and
WESTERN FLYER EXPRESS, LLC, the Defendants, Case No.
6:19-cv-01145-JWB-TJJ (D. Kan., June 3, 2019), alleges that
Defendants failed and refused to compensate the Plaintiff for his
last two weeks of employment and deprived him of making minimum
wage required by the the Fair Labor Standards Act of 1938 and the
Kansas Wage Payment Act.
According to the complaint, the Plaintiff was employed by
Defendants as a truck driver, moving goods through interstate
commerce, from October 2018 through December 2018. Throughout his
employment, the Plaintiff received instruction from WFE and
compensation for his labor from ATS. The Defendants were the
Plaintiff's joint employers.
Throughout the Plaintiff's employment with Defendants, the
Plaintiff was compensated on a flat-fee basis of $1,000.00 per
week, regardless of how many hours he worked. The Plaintiff
voluntarily terminated his employment with Defendants on or about
December 28, 2018. The Defendants failed and refused to compensate
the Plaintiff at all for his last two weeks of employment (i.e.,
the workweeks beginning on December 17 and December 24), thereby
depriving him of making minimum wage as required by the FLSA and
the agree-upon compensation rate as required by the KWPA.
The Defendants claim that they withheld the Plaintiff's last two
weeks' worth of wages to compensate them for alleged damages to
their truck driven by the Plaintiff. The Plaintiff did not
intentionally damage any property belonging to Defendants. The
deductions of the Plaintiff's wages taken by Defendants are not for
a lawful purpose under state or federal law, including the FLSA and
KWPA, the lawsuit says.[BN]
Attorneys for the Plaintiff
Sean M. McGivern, Esq.
Nathan R. Elliott, Esq.
GRAYBILL & HAZLEWOOD, LLC
218 N. Mosley
Wichita, KS 67202
Telephone: (316) 266-4058
Facsimile: (316) 462-5566
E-mail: sean@graybillhazlewood.com
nathan@grabillhazlewood.com
ALLTRAN FINANCIAL: Faces Suit over Debt Collection Practices
------------------------------------------------------------
KAREN BALCHUNAS-CANTOR, individually and on behalf of all others
similarly situated, Plaintiff v. ALLTRAN FINANCIAL, LP, Defendants,
Case No. 2:19-CV-03222-LDH-PK (E.D.N.Y., May 30, 2019) seeks to
stop the Defendant's unfair and unconscionable means to collect a
debt. The case is assigned to Judge LaShann DeArcy Hall and
referred to Magistrate Judge Peggy Kuo.
Alltran Financial, LP specializes in revenue cycle, accounts
receivable, and contact center solutions within healthcare,
financial services, higher education, and government industries in
the Unites States. Alltran Financial, LP was formerly known as
United Recovery Systems, LP and changed its name to Alltran
Financial, LP in July 2016. The company was founded in 1977 and is
based in Houston, Texas with facilities in Sartell, Minnesota;
Gaithersburg, Maryland; Woodridge, Illinois; Bryan and Houston,
Texas; and Tulsa, Oklahoma. [BN]
The Plaintiff is represented by:
Ryan L Gentile, Esq.
LAW OFFICES OF GUS MICHAEL FARINELLA
110 Jericho Turnpike, Suite 100
Floral Park, NY 11001
Telephone: (516) 326-2333
Facsimile: (516) 305-5566
E-mail: rlg@lawgmf.com
AMERICAN BANKERS: Nationwide Class Claims in Garvey Suit Struck
---------------------------------------------------------------
In the case, TERRENCE GARVEY, individually and on behalf of classes
of similarly situated individuals, Plaintiff, v. AMERICAN BANKERS
INSURANCE COMPANY OF FLORIDA, a Florida corporation, and ROYAL
ADMINISTRATION SERVICES, INC., a Florida Corporation, Defendants,
Case No. 17-CV-986 (N.D. Ill.), Judge Sharon Johnson Coleman of the
U.S. District Court for the Northern District of Illinois, Eastern
Division, granted the Defendants' motion to strike Garvey's
nationwide class claims.
Plaintiff Garvey brings the putative class action against
Defendants Bankers and Royal, asserting that the Defendants
violated the Telephone Consumer Protection Act of 1991 ("TCPA").
Bankers is a nationwide provider of automotive warranty
underwriting services, and Royal is a nationwide provider of
automotive warranty administration services. Both Bankers and
Royal are Florida corporations with their principal places of
business located in Florida.
In his third amended class action complaint, Garvey asserts a
violation of the TCPA on behalf of the putative class. Garvey, an
Illinois resident, alleges that the Defendants placed unauthorized
automated telephone calls using an automatic telephone dialing
system ("ATDS") to the cellular telephones of individuals
throughout the nation.
Garvey seeks to represent the following class of individuals: All
persons in the United States and its Territories who, since Oct.
16, 2013, received one or more telephone solicitation calls on
their cellular telephone advertising the sale of automotive
warranty products by or on behalf of Defendants through an
automated telephone dialing system without providing prior express
written consent to receive such phone calls.
The Defendants argue that Garvey's nationwide class allegations
fail to satisfy Federal Rule of Civil Procedure 23's requirements
as a matter of law and move to strike the non-Illinois residents
from Garvey's class definition in the Third Amended Complaint
pursuant to Rule 23(d)(1)(D) and, in the alternative, Rule
12(b)(2).
The Defendants challenge specific personal jurisdiction only as to
claims brought by out of state Plaintiffs. They contend that the
Court should strike non-Illinois pPlaintiffs because those
Plaintiffs are not Illinois residents, did not receive telephone
calls in Illinois, and were not otherwise injured in Illinois, so
general and specific personal jurisdiction do not exist. In
response, Garvey contends that the Supreme Court's reasoning in
Bristol-Myers Squibb Co. v. Superior Court of California, San
Francisco Cty., 137 S.Ct. 1773, 198 L.Ed.2d 395 (2017) is
inapplicable because the absent non-resident class members are not
named parties, the due-process concerns underlying that case are
not present in class actions, and the case does not extend to class
actions.
Because Judge Coleman holds that the Court lacks general personal
jurisdiction over the Defendants, which are both Florida residents,
any finding of jurisdiction must be specific. For the Court to
exercise specific jurisdiction, the injury of the non-Illinois
Plaintiffs must arise out of or relate to the Defendants' contacts
with Illinois. Because the parties do not contend that the
non-Illinois residents were injured in Illinois, exercising
specific jurisdiction over the Defendants with respect to the
nonresidents' claims would violate the Defendants' contacts with
Illinois. Accordingly, the Judge must strike the class definition
to the extent it asserts claims of non-residents. This ruling
should "streamline discovery and simplify the disputed issues."
Garvey nevertheless contends that the Dfendants waived their
ability to object to personal jurisdiction because they never
raised lack of personal jurisdiction as an affirmative defense to
any of Garvey's individual or class claims and waived their
personal jurisdiction defense by failing to raise it in a timely
manner. Although the Defendants' answers could have more clearly
stated their personal jurisdiction defenses, the Judge finds that
they did not waive their jurisdictional objections.
Moreover, the Judge would excuse the Defendants if they had failed
to raise their defenses. District courts retain the independent
power to identify and apply the proper construction of governing
law,' even where the parties `fail[ ] to advert' to the applicable
rule in their own briefing.
For these reasons, Judge Cleman granted the Defendants' Motion to
Strike the Nationwide Class Claims. The case proceeds on Garvey's
purported class claims as they pertain to Illinois residents only.
A full-text copy of the Court's May 10, 2019 Memorandum Opinion and
Order is available at https://is.gd/Bs5xOF from Leagle.com.
Terence Garvey, individually and on behalf of classes of similarly
situated individuals, Plaintiff, represented by David Louis Gerbie
-- info@mcgpc.com -- Mcguire Law, P.c., Eugene Y. Turin, Mcguire
Law, P.C., Evan M. Meyers, McGuire Law, P.C. & Michael J. McMorrow
-- mike@mjmcmorrow.com -- McMorrow Law, P.C.
American Bankers Insurance Company of Florida, a Florida
corporation, Defendant, represented by Brian P. Perryman --
brian.perryman@dbr.com -- Drinker Biddle & Reath LLP, Franklin G.
Burt -- frank.burt@dbr.com -- Drinker Biddle & Reath LLP & Matthew
M. Morrissey -- matthew.morrissey@dbr.com -- Drinker Biddle & Reath
LLP.
Royal Administration Services, Inc., a Florida corporation,
Defendant, represented by Robert R. Benjamin, Golan Christie Taglia
LLP, Anthony Joseph Dagostino, Golan Christie Taglia LLP & Melanie
Elysia Baker, Golan Christie Taglia.
AMPIO PHARMA: Shi Class Action Underway in California
-----------------------------------------------------
Ampio Pharmaceuticals, Inc. said in its Form 10-Q Report filed with
the Securities and Exchange Commission on May 10, 2019, for the
quarterly period ended March 31, 2019, that the company continues
to defend a putative class action suit entitled, Shi v. Ampio
Pharmaceuticals, Inc., et al.
On August 25, 2018, a purported shareholder of the Company
commenced a putative class action lawsuit in the United States
District Court for the Central District of California, captioned
Shi v. Ampio Pharmaceuticals, Inc., et al., Case No. 18-cv-07476
(the "Securities Class Action"). A second, similar class action was
filed on August 31, 2018, but has since been voluntarily dismissed.
Plaintiff in the Securities Class Action alleges that the Company
and certain of its current officers violated the federal securities
laws by misrepresenting and/or omitting material information
regarding the AP-003 Phase III clinical trials of Ampion. The
plaintiff asserts claims under Sections 10(b) and 20(a) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"),
and Securities and Exchange Commission Rule 10b-5, on behalf of a
putative class of purchasers of the Company’s common stock from
December 14, 2017 through August 7, 2018.
Plaintiff in the Securities Class Action seeks unspecified damages,
pre-judgment and post-judgment interest, and attorneys' fees and
costs.
Ampio Pharmaceuticals, Inc., a biopharmaceutical company, focuses
on the development of therapies for the treatment of prevalent
inflammatory conditions in the United States. The company is
developing compounds that decrease inflammation by inhibiting
specific pro-inflammatory compounds. Its product pipeline includes
Ampion, an intra-articular injection for the treatment of
osteoarthritis of the knee. Ampio Pharmaceuticals, Inc. is
headquartered in Englewood, Colorado.
ARKANSAS: Court Denies Bid to Certify Class in Lamar Suit
---------------------------------------------------------
In the case, ANTHONY LAMAR, ADC #120479A, Plaintiff, v. WENDY
KELLEY, et al., Defendants, Case No. 5:18-CV-00292 BSM (E.D. Ark.),
Judge Brian S. Miller of the U.S. District Court for the Eastern
District of Arkansas, Pine Bluff Division, (i) dismissed without
prejudice the Doe defendants; (ii) granted Lamar's motion to
voluntarily dismiss Defendant Tiffany Moore, and dismissed Moore
without prejudice; (iii) denied Lamar's motions requesting class
certification; (iv) denied the motion for reconsideration of an
order adopting a partial recommended disposition; (v) denied
Lamar's motion for leave to appeal in forma pauperis; and (vi)
denied Lamar's motion appealing the denial of class certification.
After de novo review of the record, Judge Miller adopted Magistrate
Judge Beth Deere's partial recommended disposition. He advised
Lamar that the case will not be certified as a class action. An in
forma pauperis appeal would not be taken in good faith.
A full-text copy of the Court's May 8, 2019 Order is available at
https://is.gd/zSZopI from Leagle.com.
Anthony Lamar, Plaintiff, pro se.
Wendy Kelley, Director, Arkansas Department of Correction, Randy
Straughn, Major, Varner Unit, ADC, James Gibson,
Superintendent/Head Warden, Varner Unit, ADC, Yolanda Linsy,
Captain, Varner Unit, ADC, James Shipman, Deputy Warden over
Security, Varner Supermax, ADC & Washington, Classification
Officer, Varner Unit, ADC, Defendants, represented by Ka Tina Rena
Guest, Arkansas Attorney General's Office.
ASCENDANT MARKETING: Connor et al. Seek Unpaid Wages
----------------------------------------------------
MARK CONNOR, RAYNA OLIVAS, and SHIRLEEN MUTULO, individuals, on
behalf of themselves, and on behalf of all persons similarly
situated, the PLAINTIFFS, vs. ASCENDANT MARKETING GROUP, LLC, a
California limited liability company; and Does 1 through 50,
Inclusive, the Defendants, Case No. 37-2019-00026864-CU-OE-TL (Cal.
Super., May 24, 2019), seeks to recover wages and penalties from
unpaid wages earned and due, including but not limited to unpaid
minimum wages, unpaid and illegally calculated overtime
compensation, illegal meal and rest period policies, failure to pay
all wages due to discharged and quitting employees, failure to
indemnify employees for necessary expenditures and/or losses
incurred in discharging their duties, failure to provide accurate
itemized wage statements, failure to maintain required records, and
interest, attorney's fees, costs, and expenses under the California
Labor Code.
According to the complaint, the Defendants have avoided payment of
wages, overtime wages, meal periods, rest periods, and other
benefits as required by the California Labor Code, the California
Code of Regulations. Further, the Defendants have failed to record,
report, and pay the correct sums of assessment to the state
authorities under the California Labor Code and other applicable
regulations.
As a result of Defendants' unfair and unlawful business practices,
the Defendants have reaped unfair and illegal profits during the
class period at the expense of Plaintiffs, Class Members, and
members of the public. The Defendants should be made to disgorge
their ill-gotten gains and to restore them to Plaintiffs and the
Class members, the lawsuit says.[BN]
Attorneys for the Plaintiffs:
Jean-Claude Lapuyade, Esq.
JCL LAW FIRM, APC
3990 OLD TOWN AVENUE, SUITE C204
San Diego, CA 92110
Telephone: (619) 599-8292
Facsimile: (619) 599-8291
E-mail: JLAPUYADE@CL-LAWFIRM.COM
- and -
Shani O. Zakay, Esq.
ZAKAY LAW GROUP, APC
5850 Oberlin Drive, Suite 230A
San Diego, CA 92121
Telephone: (619) 255-9047
Facsimile: (858) 404-9203
E-mail: SHANI@ZAKAYLAW.COM
AXA EQUITABLE: Brach Family Foundation Class Suit Ongoing
---------------------------------------------------------
AXA Equitable Holdings, Inc. said in its Form 10-Q Report filed
with the Securities and Exchange Commission on May 10, 2019, for
the quarterly period ended March 31, 2019, that the company
continues to defend a class action suit entitled, Brach Family
Foundation, Inc. v. AXA Equitable Life Insurance Company.
In February 2016, a lawsuit was filed in the United States District
Court for the Southern District of New York entitled Brach Family
Foundation, Inc. v. AXA Equitable Life Insurance Company.
This lawsuit is a putative class action brought on behalf of all
owners of universal life ("UL") policies subject to AXA Equitable
Life's cost of insurance (COI) rate increase. In early 2016, AXA
Equitable Life raised COI rates for certain UL policies issued
between 2004 and 2007, which had both issue ages 70 and above and a
current face value amount of $1 million and above.
A second putative class action was filed in Arizona in 2017 and
consolidated with the Brach matter. The current consolidated
amended class action complaint alleges the following claims: breach
of contract; misrepresentations by AXA Equitable Life in violation
of Section 4226 of the New York Insurance Law; violations of New
York General Business Law Section 349; and violations of the
California Unfair Competition Law, and the California Elder Abuse
Statute.
Plaintiffs seek: (a) compensatory damages, costs, and, pre- and
post-judgment interest; (b) with respect to their claim concerning
Section 4226, a penalty in the amount of premiums paid by the
plaintiffs and the putative class; and (c) injunctive relief and
attorneys' fees in connection with their statutory claims.
Five other federal actions challenging the COI rate increase are
also pending against AXA Equitable Life and have been coordinated
with the Brach action for the purposes of pre-trial activities. T
hey contain allegations similar to those in the Brach action as
well as additional allegations for violations of various states'
consumer protection statutes and common law fraud. Two actions are
also pending against AXA Equitable Life in New York state court.
AXA Equitable Life is vigorously defending each of these matters.
AXA Equitable Holdings, Inc. operates as a diversified financial
services company worldwide. It operates through four segments:
Individual Retirement, Group Retirement, Investment Management and
Research, and Protection Solutions. The company was founded in 1859
and is based in New York, New York. AXA Equitable Holdings, Inc. is
a subsidiary of AXA S.A.
AXA EQUITABLE: Continues to Defend O'Donnell Class Action
---------------------------------------------------------
AXA Equitable Holdings, Inc. said in its Form 10-Q Report filed
with the Securities and Exchange Commission on May 10, 2019, for
the quarterly period ended March 31, 2019, that the class action
suit initiated by Richard T. O'Donnell, was transferred in December
2018 and is pending in Connecticut Superior Court, Judicial
District of Stamford.
In August 2015, a lawsuit was filed in Connecticut Superior Court,
Judicial Division of New Haven entitled Richard T. O'Donnell, on
behalf of himself and all others similarly situated v. AXA
Equitable Life Insurance Company.
This lawsuit is a putative class action on behalf of all persons
who purchased variable annuities from AXA Equitable Life, which
were subsequently subjected to the volatility management strategy
and who suffered injury as a result thereof.
Plaintiff asserts a claim for breach of contract alleging that AXA
Equitable Life implemented the volatility management strategy in
violation of applicable law.
In November 2015, the Connecticut Federal District Court
transferred this action to the United States District Court for the
Southern District of New York. In March 2017, the Southern District
of New York granted AXA Equitable Life's motion to dismiss the
complaint.
In April 2017, the plaintiff filed a notice of appeal. In April
2018, the United States Court of Appeals for the Second Circuit
reversed the trial court's decision with instructions to remand the
case to Connecticut state court.
In September 2018, the Second Circuit issued its mandate, following
AXA Equitable Life's notification to the court that it would not
file a petition for writ of certiorari.
The case was transferred in December 2018 and is pending in
Connecticut Superior Court, Judicial District of Stamford.
AXA Equitable said, "We are vigorously defending this matter."
AXA Equitable Holdings, Inc. operates as a diversified financial
services company worldwide. It operates through four segments:
Individual Retirement, Group Retirement, Investment Management and
Research, and Protection Solutions. The company was founded in 1859
and is based in New York, New York. AXA Equitable Holdings, Inc. is
a subsidiary of AXA S.A.
BARRIER COMPLIANCE: Perez Seeks Overtime Pay for Off-the-Clock Work
-------------------------------------------------------------------
Jesus Perez, on behalf of himself and all others
similarly-situated, Plaintiff, v. Barrier Compliance Services, LLC,
Defendant, Case No. 19-cv-00061, (W.D. Ky., May 20, 2019) seeks to
recover unpaid minimum and overtime wages and redress for
Defendant's failure to provide itemized wage statements pursuant to
the Fair Labor Standards Act of 1938.
Barrier Compliance Services performs inspections, assessments,
construction and installation, design, assistance and code
compliance. Perez worked for Barrier as a field employee. He claims
to have incurred off-the-clock work without appropriate
compensation including uncompensated work for on-call time, waiting
time, and/or receiving or performing work-related calls. [BN]
Plaintiff is represented by:
Parker M. Wornall, Esq.
Courtney L. Graham, Esq.
Randall S. Strause, Esq.
STRAUSE LAW GROUP, PLLC
804 Stone Creek Pkwy., Ste. One
Louisville, KY 40223
Telephone: (502) 426-1661
Fax: (502) 426-6772
Email: rstrause@strauselawgroup.com
Compwornall@strauselawgroup.com
cgraham@strauselawgroup.com
BEDFORD, OH: Court Awards $41K in Restitution in Pund Suit
----------------------------------------------------------
In the case, KENNETH PUND, et al., Plaintiffs, v. CITY OF BEDFORD,
OHIO, et al., Defendants, Case No. 1:16CV1076 (N.D. Ohio), Judge
Benita Y. Pearson of the U.S. District Court for the Northern
District of Ohio, Eastern Division, granted summary judgment in
favor of the Class for restitution in the amount of $40,667, to be
distributed proportionally to the class members.
The Court granted summary judgment in favor of the Class on its
allegations that the City's Point of Sale Inspection Ordinance and
Rental Inspection Ordinance (as they existed between 2014 and 2017)
were unconstitutional, and that the City had been unjustly enriched
by inspections that occurred pursuant to those ordinances. It
denied summary judgment (without prejudice to later filing) on the
Class' request for restitution and instead certified the class
pursuant to Fed. R. Civ. P. 23(b)(3).
The Class disseminated notice of a pending class action. After the
opt-out period concluded, the Class renewed its motion for summary
judgment as to the amount of restitution. In its motion, the Class
asks the Court (1) to order the City to return $60,400, or in the
alternative $40,667 for distribution among the class members. It
also asks the Court (2) to order the City to pay $1,000 incentive
awards to the named Plaintiffs, and (3) to order that all
restitution payments be made to a third-party administrator within
20 days of the Court's final Order and to class members within 45
days of the date of the Court's final Order.
In a status conference on Dec. 21, 2018, the Court advised the
Class Counsel that incentive awards are a matter of contract and
that, unless persuaded of its authority to do so, it would not
grant such awards on a summary-judgment motion. The Class Counsel
did not protest, nor did he raise the issue in his reply brief in
support of summary judgment. The Court perceives, therefore, that
the Class has abandoned its request for incentive awards as part of
its summary-judgment motion.
In its opposition brief, the City states that it agrees with the
Class about the manner and timing of restitution: it will make
payment of funds to a third-party administrator within 20 days of
the Court's final order, and payment to the Class Members within 45
days of the Court's final order. Because the parties agree on the
manner and timing of restitution payments, it is unnecessary for
the Court to address those matters in the Order.
The only issue remaining, then, is the amount of restitution that
the City owes the Class. The Class has equivocated on its request.
In its initial motion for summary judgment, the Class asked for
$61,700 in restitution ($23,575 for point-of-sale inspection fees
and $38,125 for rental inspection fees). In its reply brief
pertaining to that motion, the Class stipulated to a one-third
reduction of that figure, to $41,134, because it acknowledged that
some portion of each inspection was conducted on property that was
not constitutionally protected (that is, property outside the house
and curtilage). After accounting for small clerical errors, the
Class advanced a request for $40,734.
In its renewed motion for summary judgment and corresponding
briefs, the Class argues that a recent development in case law has
rendered the one-third stipulated reduction inappropriate. It
submits that Collins v. Virginia clarified the meaning of
"curtilage," and according to that clarification, the class members
are entitled to the return of their entire inspection fees.
Accounting for opt-outs, the Class requests a total figure of
$60,400 in restitution. Despite its insistence that Collins
strengthened its hand, however, the Class repeats its request for
$40,667 in its initial brief and its reply.
Thus, despite its equivocation, the Class does not renounce its
"alternative" request for restitution amounting to $40,667. For
its part, the City is willing to pay restitution in the amount of
$40,667.
Judge Pearson finds that the Class's theory that Collins prohibits
a government official from putting a single the on private property
is incorrect. Collins did not move the curtilage boundaries
forward or backward, and it does not apply to the case in the way
the Class suggests. The Class' suggestion that the point-of-sale
and rental inspections were constitutional only to the extent they
were conducted from a street or sidewalk would obviate the
centuries-old distinction between curtilage and open field.
Despite its zealous argument that, since Collins, the Class is
entitled to complete restitution, the Class repeatedly reiterates
its alternative request for $40,667, a one-third reduction of the
entire amount of fees paid. Because Collins does not have the
effect the Class suggests, the Judge is left with no reason not to
honor the parties' factual stipulation as to the intrusiveness of
the City's inspections.
For the foregoing reasons, Judge Pearson granted summary judgment
in favor of the Class for restitution in the amount of $40,667, to
be distributed proportionally to the class members in the manner
described and agreed to in ECF Nos. 62 and 63. The Class' request
for incentive awards for named Plaintiffs is denied.
All allegations of liability and restitution are resolved. The
parties agree that the Class is the prevailing party. The Class
Counsel will file an Application for Attorney Fees, together with
supporting exhibits and affidavits, no later than 21 days from the
date of the Order. The Defendants will respond no later than 14
days from the date of the filing of that Application.
A full-text copy of the Court's May 8, 2019 Memorandum of Opinion
and Order is available at https://is.gd/LQHZl2 from Leagle.com.
Kenneth Pund, Plaintiff, represented by Christopher P. Finney --
chris@finneylawfirm.com -- Gary F. Werner --
gwerner@bernsockner.com -- Berns, Ockner & Greenberger, Maurice A.
Thompson -- mthompson@ohioconstitution.org -- Center for
Constitutional Law & Sheldon Berns -- sberns@bernsockner.com --
Berns, Ockner & Greenberger.
John Diezic, Scott Jowers & Stephanie Jowers, Plaintiffs,
represented by Christopher P. Finney, Maurice A. Thompson & Sheldon
Berns, Berns, Ockner & Greenberger.
City of Bedford, Rob Brown, in his official capacity as Building
Inspector, City of Bedford and in his individual capacity & Richard
Hickman, in his official capacity as Building Inspector, City of
Bedford and in his individual capacity, Defendants, represented by
Kallen L. Dearnbarger, Smith Marwill & R. Eric Smearman --
res@smithmarwill.com -- Smith Marwill.
BERKSHIRE HILLS: Settlement Reached in Depositor's Class Suit
-------------------------------------------------------------
Berkshire Hills Bancorp, Inc. said in its Form 10-Q Report filed
with the Securities and Exchange Commission on May 10, 2019, for
the quarterly period ended March 31, 2019, that a settlement has
been reached in a class action suit pending in the United States
District Court, District of Massachusetts.
The Company and its bank unit were served with the complaint on
April 28, 2016.
The complaint was filed by an individual Berkshire Bank depositor,
who claims to have filed the complaint on behalf of a purported
class of Berkshire Bank depositors, and alleges violations of the
Electronic Funds Transfer Act and certain regulations thereunder,
among other matters.
On July 15, 2016, the complaint was amended to add purported claims
under the Massachusetts Consumer Protection Act.
On January 4, 2019, the Parties reached an agreement in principle
to settle the matter on a class-wide basis.
Among other terms, the agreement in principle provides that the
Defendants will pay a total of Three Million Dollars ($3.0 million)
in exchange for the dismissal with prejudice and release of all
claims that have been or could have been asserted in the lawsuit on
behalf of the Plaintiff and the Settlement Class Members. The
Parties are in the process of negotiating the final terms of a
written Settlement Agreement.
Once the Parties execute the Settlement Agreement, it will be
presented to the Court for preliminary approval, class notice, a
period for members to opt out or object, and a final approval
hearing.
The Company accrued $3.0 million as of March 31, 2019, in
anticipation of a settlement.
Berkshire Hills Bancorp, Inc. operates as a bank holding company
for Berkshire Bank that provides various banking products and
services. It offers various deposit accounts, including demand
deposit, NOW, regular savings, money market savings, time
certificates of deposit, and retirement deposit accounts; and
loans, such as commercial real estate, commercial and industrial,
consumer, and residential mortgage loans. Berkshire Hills Bancorp,
Inc. was founded in 1846 and is headquartered in Boston,
Massachusetts.
BERKSHIRE HILLS: SI Financial Shareholder Sues over Merger Deal
---------------------------------------------------------------
Berkshire Hills Bancorp, Inc. said in its Form 10-Q Report filed
with the Securities and Exchange Commission on May 10, 2019, for
the quarterly period ended March 31, 2019, that the company
together with SI Financial Group, Inc., is facing a class action
suit initiated by a purported SI Financial shareholder.
On December 11, 2018, the Company entered into an agreement and
plan of merger with SI Financial Group, Inc. ("SI Financial").
Under the agreement, SI Financial will merge with and into the
Company in a transaction to be accounted for a business
combination. Immediately following the merger, SI Financial's
wholly-owned subsidiary, Savings Institute Bank and Trust Company,
will merge with and into Berkshire Bank.
On February 9, 2019, the Company received notice of a lawsuit filed
in the United States District Court for the District of Connecticut
by a purported SI Financial Group, Inc. ("SI Financial")
shareholder. The lawsuit purports to be filed as a putative class
action lawsuit against SI Financial, the individual members of the
SI Financial board of directors, and the Company, in connection
with the Company’s announced intention to acquire and merge with
SI Financial.
The Plaintiff, on behalf of himself and similarly-situated SI
Financial shareholders, generally alleges that the registration
statement filed with the SEC on February 4, 2019 contains
materially misleading omissions or misrepresentations in violation
of Section 14(a) and Section 20(a) of the Exchange Act, and Rule
14a-9 promulgated thereunder.
The Plaintiff seeks injunctive relief, unspecified damages, and an
award of attorneys' fees and expenses.
Berkshire Hills said, "Of note, although the Company is named in
the caption to atop this complaint, neither the Company, nor
Berkshire Bank, nor any of their affiliates are identified as
defendants in this action. The Company, SI Financial and the
individual Defendants deny the allegations contained in the
complaint and intend to vigorously defend this lawsuit."
Berkshire Hills Bancorp, Inc. operates as a bank holding company
for Berkshire Bank that provides various banking products and
services. It offers various deposit accounts, including demand
deposit, NOW, regular savings, money market savings, time
certificates of deposit, and retirement deposit accounts; and
loans, such as commercial real estate, commercial and industrial,
consumer, and residential mortgage loans. Berkshire Hills Bancorp,
Inc. was founded in 1846 and is headquartered in Boston,
Massachusetts.
BJ'S WHOLESALE: Class Certification on Count I in Bugliaro Flipped
------------------------------------------------------------------
In the case, BJ's Wholesale Club, Inc., and State of Florida
Department of Revenue, Appellants, v. Laura Bugliaro, et al.,
Appellees, Case Nos. 3D17-1495, 3D17-1476 (Fla. Dist. App.), Judge
Ivan F. Fernandez of the District Court of Appeal of Florida for
the Third District reversed the trial court's May 24, 2017
non-final order certifying a class on Count I, pursuant to Florida
Rule of Appellate Procedure 9.30(a)(3)(C)(vi).
The matter came before the trial court on Bugliaro's motion for
class certification on Count I, seeking injunctive relief under the
Florida Deceptive and Unfair Trade Practices Act. The motion
concerns a statewide class of non-tax-exempt members of BJ's
Wholesale Club's 31 Florida stores.
In her third amended complaint, Bugliaro alleges that BJ's engaged
in deceptive and unfair trade practices by improperly imposing on
and collecting from its members a charge denominated as a "sales
tax" on the full, undiscounted price of products purchased with a
discount, funded in part by BJ's, at all of BJ's 31 Florida
locations. Particularly, Bugliaro asserts that when members of
BJ's Wholesale Club's 31 Florida stores use discounts, issued and
funded in-part by BJ's, to make in-store purchases in Florida, BJ's
still charges and purports to collect "sales tax" on the full price
of the item, without application of the portion of the discount
that is funded by BJ's to reduce the sales price of the item.
On Feb. 27, 2016, the trial court, on the parties' cross-motions
for summary judgment, determined that BJ's improperly charged and
collected taxes on the portion of the discounts that constituted
its dealer discount. On Sept. 9, 2016, Bugliaro filed her motion
for class certification on Count I for injunctive relief pursuant
to Florida Rule of Civil Procedure 1.220(b)(2).
Bugliaro defined the proposed statewide class as all non-tax-exempt
members of BJ's Wholesale Club's 31 Florida stores who will make in
store purchases in Florida and will be charged and pay monies as a
'sales tax' on the full, undiscounted price of products purchased
with a discount funded in part by BJ's. On Oct. 4, 2016, BJ's
filed its opposition to the motion for class certification. On
Nov. 4, 2016, Bugliaro filed her reply in support of her motion for
class certification.
On May 24, 2017, the trial court entered an order granting
Bugliaro's motion for class certification on Count I finding,
Bugliaro has demonstrated by competent, substantial evidence that
this action meets each and every one of Rule 1.220's prerequisites
for class certification. It certified the class under Bugliaro's
proposed definition and appointed Bugliaro as the class
representative. The State and BJ's separately appealed the
non-final order granting class certification. The appeals are
consolidated for the purposes of the record, oral argument, and
decision only.
Upon review of the record, Judge Dernandez reversed and remanded
the order granting class certification because: 1) the trial court
lacked subject matter jurisdiction, as Bugliaro failed to exhaust
her administrative remedies, and 2) the class is not
ascertainable.
As to the trial court's lack of subject matter jurisdiction,
Bugliaro is not seeking purely injunctive relief, as she claims.
Count I, upon which Bugliaro is proceeding for class certification,
incorporates the first paragraph of the operative complaint in
which Bugliaro seeks damages, including a tax refund. Because
Count I includes a request for a refund, Bugliaro and any putative
class members were required to exhaust their administrative
remedies with the Department of Revenue pursuant to section 215.26,
Florida Statutes (2016). Since the statute requires that an
aggrieved party pursue his or her administrative remedies prior to
filing a lawsuit, the trial court was without subject matter
jurisdiction in the case.
In addition, the class is not ascertainable because the definition
of the class is either over or under inclusive. The tax issue in
the case only affects the stores in Florida; however, BJ's has
nationwide membership where potentially any member in the nation
could travel to Florida and shop at any one of BJ's 31 Florida
locations. Because BJ's members are not members of particular
stores, the reference to "members of BJ's Wholesale Club's 31
Florida stores" encompasses either every current and future BJ's
member nationwide, or the definition does not include anyone, as
membership is not limited by state. Based on the definition of the
class, the Judge finds that the class is not ascertainable because
it has not been defined in such a way that the members of that the
class can be properly notified of the class action and their right
to opt out.
The Order is not final until disposition of timely filed motion for
rehearing.
A full-text copy of the Court's May 8, 2019 Order is available at
https://is.gd/cu8lpK from Leagle.com.
Foley & Lardner, LLP, Kevin A. Reck -- kreck@foley.com -- and
Christina M. Kennedy -- ckennedy@foley.com -- (Orlando), Brandon J.
Williams -- bjwilliams@foley.com -- James A. McKee --
jmckee@foley.com -- and Benjamin J. Grossman --
bjgrossman@foley.com -- (Tallahassee), for appellant BJ's Wholesale
Club, I nc.
Ashley Moody, Attorney General, and Amit Agarwal, Solicitor
General, and J. Clifton Cox, Special Counsel, and Edward M. Wenger,
Chief Deputy Solicitor General, (Tallahassee), for appellant State
of Florida Department of Revenue.
Kluger, Kaplan, Silverman, Katzen and Levine, P.L., Alan J. Kluger
-- akluger@klugerkaplan.com -- Steve I. Silverman --
ssilverman@klugerkaplan.com -- and Erin E. Bohannon --
ebohannon@klugerkaplan.com; Samson Appellate Law and Daniel M.
Samson; VM Diaz & Partners, LLC, Victor M. Diaz, Jr., and Jorge D.
Lorenzo, for appellees.
BLOUNT INTERNATIONAL: Sept. 9 Settlement Fairness Hearing Set
-------------------------------------------------------------
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
PORTLAND DIVISION
ELIA AZAR and DEAN ALFANGE, on behalf of
themselves and all others similarly situated,
Plaintiffs,
v.
BLOUNT INTERNATIONAL, INC., JOSHUA L.
COLLINS, DAVID A. WILLMOTT, ROBERT E.
BEASLEY, JR., RONALD CAMI, ANDREW C.
CLARKE, NELDA J. CONNORS, E. DANIEL JAMES,
HAROLD E. LAYMAN, MAX L. LUKENS, AND DANIEL
J. OBRINGER,
Defendants.
IF YOU HELD BLOUNT INTERNATIONAL, INC. ("BLOUNT") COMMON STOCK
CONTINUOUSLY FROM MARCH 4, 2016, THE RECORD DATE FOR VOTING ON THE
PROPOSED ACQUISITION OF BLOUNT BY AMERICAN SECURITIES LLC AND P2
CAPITAL PARTNERS LLC, THROUGH APRIL 12, 2016, THE DATE THE
TRANSACTION WAS COMPLETED, YOU COULD RECEIVE A PAYMENT FROM A CLASS
ACTION SETTLEMENT. CERTAIN PERSONS ARE EXCLUDED FROM THE CLASS AS
SET FORTH BELOW. 1
PLEASE READ THIS NOTICE CAREFULLY. YOUR RIGHTS MAY BE AFFECTED BY A
CLASS ACTION LAWSUIT PENDING IN THIS COURT.
YOU ARE HEREBY NOTIFIED, pursuant to Rule 23 of the Federal Rules
of Civil Procedure and Order of the United States District Court
for the District of Oregon, Portland Division, that the
above-captioned litigation (the "Action") has been certified as a
class action and that a Settlement has been proposed for
$3,059,000.00 in cash. A hearing will be held on September 9, 2019,
at 10:00 a.m., before the Honorable Michael H. Simon at the Mark O.
Hatfield United States Courthouse, 1000 Southwest Third Avenue,
Portland, Oregon 97204-2944, for the purpose of determining
whether: (1) the proposed Settlement should be approved by the
Court as fair, reasonable and adequate; and (2) the application of
Lead Plaintiffs' counsel for the payment of attorneys' fees and
expenses, including Lead Plaintiffs' expenses incurred in
connection with the Action, should be approved.
If you are a Class Member described above, your rights may be
affected by the Settlement of the Action and you may be entitled to
share in the Settlement Fund. If you have not received a detailed
Notice of Pendency and Proposed Settlement of Class Action
("Notice") and a copy of the Proof of Claim and Release, you may
obtain a copy of these documents by contacting the Claims
Administrator: Azar v. Blount International, Inc., c/o Epiq Class
Action & Claims Solutions, Inc., PO Box 2312, Portland, OR
97208-2312 or call 1-888-418-0346. You may also obtain copies of
the Stipulation of Settlement, Notice, and Proof of Claim and
Release at www.blountinternationalsettlement.com.
If you are a Class Member, to be eligible to share in the
distribution of the Net Settlement Fund, you must submit a Proof of
Claim and Release postmarked no later than August 12, 2019. If you
are a Class Member and do not submit a valid Proof of Claim and
Release, you will not be eligible to share in the distribution of
the Net Settlement Fund but you will still be bound by any judgment
entered by the Court in this Action (including the releases
provided for therein).
To exclude yourself from the Class, you must submit a written
request for exclusion postmarked by August 19, 2019, and in
accordance with the instructions set forth in the Notice. If you
are a Class Member and do not exclude yourself from the Class, you
will be bound by any judgment entered by the Court in this Action
(including the releases provided for therein), whether or not you
submit a Proof of Claim and Release. If you submit a written
request for exclusion, you will have no right to recover money
pursuant to the Settlement.
Any objection to the terms and conditions of the proposed
Settlement, the allocation, the request for attorneys' fees and
reimbursement of litigation expenses, or the request for a
compensatory award to the Lead Plaintiffs must be filed with the
Court and delivered such that it is received by each of the
following no later than August 19, 2019:
COURT
Clerk of the Court
U.S. District Court for the District of Oregon, Portland Division
Mark O. Hatfield
United States Courthouse
1000 Southwest Third Ave.
Portland, OR 97204
LEAD COUNSEL
W. Scott Holleman
Johnson Fistel LLP
99 Madison Avenue, 5th Fl.
New York, NY 10016
DEFENSE COUNSEL
Gary Bornstein
Cravath, Swaine & Moore LLP
825 Eighth Avenue
New York, NY 10019
PLEASE DO NOT CONTACT THE COURT OR THE CLERK'S OFFICE REGARDING
THIS NOTICE. If you have any questions about the settlement, you
may contact Lead Counsel at the address listed above.
DATED: May 13, 2019
BY ORDER OF THE COURT
UNITED STATES DISTRICT COURT
DISTRICT OF OREGON
PORTLAND DIVISION
1 This Summary Notice incorporates by reference the definitions in
the Stipulation of Settlement dated as of April 12, 2019
("Stipulation"), and all capitalized terms used, but not defined
herein, shall have the same meanings as in the Stipulation. The
Stipulation can be obtained at
www.blountinternationalsettlement.com. [GN]
BMW NORTH: Faces Class Action Over N63 Oil Burning Defect
---------------------------------------------------------
Brigette Honaker, writing for Top Class Actions, reports that a
recent class action lawsuit claims that certain BMW engines are
plagued with an oil burning defect, similar to older models.
The defect allegedly affects N63 model engines and causes the
vehicles to consume excess amounts of engine oil with regular use.
This means that consumers are reportedly forced to regularly refill
the oil in their vehicles in addition to taking the cars in for
regular oil changes.
According to the BMW class action, the defect is found in several
iterations of the N63 engine including the N63TU.
"BMW has known about this for many years, and in fact faced a prior
class action concerning earlier model cars equipped with N63
engines, which is the predecessor of the N63TU. BMW never fixed the
defect, which continues to plague the class vehicles at issue in
this action," the BMW class action lawsuit claims.
Plaintiff Thomas Isley allegedly experienced the issue with his
2015 BMW X5 xDrive50i. The vehicle was originally equipped with the
defective N63TU engine, but BMW replaced this engine with the N63
after the vehicle continually burned through oil.
Despite paying for the engine replacement out-of-pocket, Isley
allegedly continues to suffer from the oil burning defect –
meaning he needs to routinely add six to eight quarts of engine oil
in between oil changes.
Isley claims that BMW knew that the oil burning defect plagued the
N63 engines, but concealed the issue from consumers.
The original N63 was released in 2008, but a May 2013 technical
bulletin released to technicians reportedly showed that BMW was
aware of the oil consumption complaints. Since then, each new
version of the N63 engine allegedly experiences the oil burning
defect.
"BMW has attempted to mask the oil consumption defect until the
expiration of the new vehicle limited warranty by characterizing
the excessive oil consumption as 'normal' and further instructing
service representatives and owners to overfill the class vehicles
with engine oil," Isley argues.
Isley seeks to represent a Class of consumers who purchased,
leased, or own a 2012 to present BMW automobile equipped with any
variant of the N63TU engine, including certain model years of the
BMW 5 Series, 6 Series, 7 Series, X5, and X6.
If the court chooses not to certify the nationwide Class, Isley
proposes to represent three statewide Classes of the same consumers
from certain states.
The first multi-state Class would include consumers from
California, Florida, Illinois, Massachusetts, Michigan, Minnesota,
Missouri, New Jersey, New York, and Washington. The other two
Classes would include consumers from New Jersey and Tennessee,
respectively.
The BMW oil class action lawsuit seeks declaratory relief,
injunctive relief, restitution, disgorgement, punitive damages,
treble damages, exemplary damages, compensatory damages, statutory
and civil penalties, court costs, and attorneys' fees.
Isley and the proposed Class are represented by Frederick J.
Klorczyk III and Joel D. Smith of Bursor & Fisher PA.
The BMW Oil Guzzling Class Action Lawsuit is Isley v. BMW of North
America LLC, et al., Case No. 2:19-cv-12680, in the U.S.
District Court for the District of New Jersey. [GN]
BRIDGETON LANDFILL: Bid to Remand Kitchin Suit to State Court OK'd
------------------------------------------------------------------
Judge Catherine D. Perry of the U.S. District Court for the Eastern
District of Missouri, Eastern Division, granted the Plaintiffs'
motion to remand the case, JOHN C. KITCHIN, JR., NORTH WEST AUTO
BODY COMPANY, and MARY MENKE, on behalf of themselves and all
others similarly situated, Plaintiffs, v. BRIDGETON LANDFILL, LLC,
et al., Defendants, Case No. 4:18 CV 672 CDP (E.D. Mo.), to state
court.
From 1942 to 1957, uranium ore was processed into various uranium
compounds at a facility located in downtown St. Louis, Missouri, as
part of the Manhattan Project -- a United States research project
designed to develop the first nuclear weapons. In the late 1940's,
the Manhattan Project acquired an additional tract of land near
Lambert Airport -- the St. Louis Airport Site ("SLAPS") -- for
storage of radioactive wastes from the uranium processing occurring
at the downtown site. Contaminated scrap was also stored at the
SLAPS site.
In the 1960's, some of the radioactive wastes were moved from SLAPS
to a storage site on Latty Avenue in Hazelwood, Missouri. In 1973,
the Defendant landfill owners and operators accepted over 46,000
tons of these radioactive wastes mixed with contaminated soil and
used this mixture as daily cover for the West Lake Landfill located
in Bridgeton, Missouri. The Landfill is not a licensed nuclear
facility.
According to the Plaintiffs, despite knowing that the Landfill was
not permitted to accept radioactive material and was never an
adequate storage or disposal site for radioactive wastes, the
Defendants nevertheless dumped the wastes into the Landfill and
spread them over a large area. They claim that about 15 acres of
the Landfill are filled with radioactive wastes at a depth of up to
20 feet. The Plaintiffs contend that because of the Defendants'
spread and improper storage of these wastes, radioactive material
has contaminated soil, water, and air, resulting in the
contamination of surrounding communities where their properties are
located.
The Plaintiffs are property owners seeking damages and injunctive
relief for radioactive contamination of their respective properties
allegedly caused by neighboring West Lake Landfill, located in
North St. Louis County, Missouri. They assert that their property
has been damaged by soil, dust, and air contamination from improper
generation, handling, storage, and disposal of radioactive
materials by four corporate defendants who are landfill owners and
operators. The Plaintiffs originally filed the suit in St. Louis
County Circuit Court on behalf of themselves and all other others
similarly situated, pleading various state-law tort theories.
The Defendants removed the action to the Court arguing that the
allegations arise under federal law -- specifically the
Price-Anderson Act ("PAA") as amended in 1988, which provides a
federal compensation regime for damages resulting from a nuclear
incident; and the Comprehensive Environmental Response,
Compensation, and Liability Act ("CERCLA"), which established a
federal "Superfund" to clean up uncontrolled or abandoned
hazardous-waste sites, and provides for liability of persons
responsible for releases of hazardous waste at these sites.
In their removal petition, the Defendants also invoked the Class
Action Fairness Act ("CAFA"), which permits federal courts to
preside over certain class actions in diversity jurisdiction where
the aggregate amount in controversy exceeds $5 million; where the
class comprises at least 100 plaintiffs; and where there is at
least "minimal diversity" between the parties, i.e., at least one
plaintiff class member is diverse from at least one defendant.
The Plaintiffs move to remand the case to state court.
Judge Perry concludes that the Defendants have failed to meet their
burden of establishing federal subject-matter jurisdiction for
purposes of the PAA and CERCLA. Further, the Plaintiffs have met
their burden of establishing that the local-controversy exception
to CAFA jurisdiction applies in the case. Accordingly, the action
must be remanded to state court. In light of this determination,
the Judge need not address the Plaintiffs' argument that applying
the PAA to their claims would deprive them of due process.
Accordingly, for all of the foregoing reasons, Judge Perry granted
the Plaintiffs' Motion for Remand. She denied as moot the
Plaintiffs' alternative Motion for Leave to Amend and Remand, as
well as the Defendants' (i) Motion to Strike Plaintiffs' Experts
or, in the Alternative, for Leave to File Sur-Repl; and (ii) Motion
for Oral Argument. The case is remanded to the Circuit Court of
St. Louis County, Missouri, from which it was removed.
A full-text copy of the Court's May 8, 2019 Memorandum and Order is
available at https://is.gd/STeeU7 from Leagle.com.
John C. Kitchin, Jr., North West Auto Body & Mary Menke, on behalf
of themselves and all other similarly situated, Plaintiffs,
represented by Anthony D. Gray, JOHNSON GRAY LLC, Barry James
Cooper, Jr. -- bcooper@sch-llc.com -- COOPER LAW FIRM, LLC, Celeste
Brustowicz -- cbrustowicz@sch-llc.com -- THE COOPER LAW FIRM, LLC,
Kimberly Starr Morr, THE DRISCOLL FIRM, P.C., Nathaniel Richard
Carroll, KEANE LAW LLC, Ron A. Rustin, Ryan A. Keane, KEANE LAW LLC
& Victor T. Cobb -- victortcobb@gmail.com -- COOPER LAW FIRM, LLC.
Bridgeton Landfill, LLC, Republic Services, Inc. & Allied Services,
LLC, Defendants, represented by Allyson Elisabeth Cunningham --
acunningham@lathropgage.com -- LATHROP GAGE, LLP, Patricia L. Silva
-- psilva@lathropgage.com -- LATHROP AND GAGE, LLP, Peter F. Daniel
-- pdaniel@lathropgage.com -- LATHROP AND GAGE, LLP & William
Garland Beck -- wbeck@lathropgage.com -- LATHROP GAGE, LLP.
CALIFORNIA FACULTY: Brice Suit Moved to C.D. Calif.
---------------------------------------------------
In the case, WILLIAM D. BRICE, Plaintiff, v. CALIFORNIA FACULTY
ASSOCIATION, Defendant, Case No. 2:18-cv-03106-MCE-EFB (E.D. Cal.),
Judge Morrison C. England, Jr. of the U.S. District Court for the
Eastern District of California granted the Defendant's Motion to
Transfer Venue to the Central District of California pursuant to 28
U.S.C. Section 1404(a).
The Plaintiff has been a faculty member at the Dominguez Hills
campus of the California State University ("CSU") since
approximately Aug. 1, 2014. Defendant CFA is a labor organization
providing exclusive representation to some 28,000 faculty employees
at 23 CSU campuses located throughout the state. The CFA is an
affiliate of the California Teachers Association ("CTA").
Although the Plaintiff resigned his membership with Defendant CFA
and its affiliates around November of 2014, under California
Government Code Section 3583.5, the Plaintiff was nonetheless
required, as a nonmember, to pay CFA union fees as a condition of
his employment with CSU. Those fees were automatically deducted
from his wages without his consent and were transferred to CFA
between Dec. 1, 2014 and July 1, 2014.
On June 27, 2018, the U.S. Supreme Court issued its decision in
Janus v. AFSCME. Janus found the First Amendment is violated when
a public sector union like CFA forces a government employee like
the Plaintiff to pay fees to a union as a condition of employment.
Janus accordingly overturned prior precedent and held that the
compulsory collection of "fair share" fees (to cover the cost of
collective bargaining representation) from non-union members could
not continue. Although the Plaintiff claims that following the
Janus decision, CFA refunded $10.26 to the Plaintiff (which
represented the four days it charged the Plaintiff for union fees
between the day the case was decided and July 1, 2018), the
Plaintiff claims that CFA has not refunded any further fee it
collected from him prior to June 27, 2018.
The Plaintiff accordingly instituted the present lawsuit on Nov.
30, 2018. He seeks to recover, on behalf of a class of all CSU
employees who were represented by CFA but chose not to join CFA,
all "fair share" fees received by the CFA before Janus was decided.
He filed here in the Eastern District of California on grounds
that CFA is headquartered in Sacramento, and that technically that
entitles Plaintiff to a venue within the Eastern District under 28
U.S.C. Section 1391. He elected to file in the Eastern District
despite the fact that he resides within the Central District of
California, worked at a CSU campus within the Central District, and
was represented by CFA through a field representative based in the
Central District.
Defendant CFA now moves to transfer venue from the Court to the
Central District on grounds that venue is also proper there,
despite the fact that CFA happens to be headquartered here in the
Eastern District. It argues for transfer on grounds that the
Central District is a more convenient forum for the litigants. In
addition, because seven other cases also challenging non-member
fees in the wake of Janus are already pending before a single
Central District judge, CFA claims that interests of judicial
economy also weigh in favor of transferring the matter.
The Plaintiff opposes, pointing out that his choice of venue should
be accorded deference and that key CFA personnel involved in
decisions on how to spend the subject non-member dues would have
been employed at CFA headquarters in Sacramento.
Judge England believes the convenience of the parties would best be
served by litigating the matter in the Central District. This is
the case despite the fact that the Eastern District arguably has
some interest in the subject matter of the case given the fact that
CFA's headquarters are there and a portion of the putative class
members are also in the Eastern District. While he recognizes that
a strong showing of inconvenience must be made in order to warrant
upsetting the Plaintiff's choice of forum, the fact that the
Plaintiff may be able to point to CFA's headquarters as at least
some justification for retaining the case in the Eastern District
is nonetheless eclipsed once the Court looks to whether the
interests of justice warrant a transfer.
In addition, he finds that it appears that a total of seven related
cases, all pending before Judge Staton in the Central District,
turn on whether the CTA and its affiliates, including the CFA, must
refund payments initially collected in accordance with California
law and then-binding Supreme Court precedent before being
invalidated by the Supreme Court's subsequent decision in Janus.
According to CFA, transferring the case to the Central District
would allow the same District Judge to consider all of these cases,
and thereby avoid duplication of effort and potentially
inconsistent rulings.
Plaintiff tries to distinguish the related matters in the Central
District by claiming that while "the abstract legal question of
union liability for pre-Janus deductions may be similar," the cases
are nonetheless not comparable because "different unions,
employers, employees, and labor statutes are involved." Pl.'s Opp.,
ECF No. 24, 10:13-16. These differences are not dispositive,
however, because the related cases, as well as this matter, share
the common question of whether CTA affiliates that collected "fair
share" fees pre-Janus can be held retrospectively liable for
damages.
The fact that the classes may potentially overlap, particularly
when combined with the shared fundamental issue of whether the
collection of fair-share fees were permissible prior to Janus, all
point to a clear risk of inconsistent results if the case is not
transferred to the Central District. Although the Judge recognizes
that the cases are not identical, he finds that any differences in
the parties involved is inconsequential in the face of the
underlying, and fundamental, legal question they all share. Having
that same issue determined in different districts bears a clear
risk of not just inconsistent rulings, but a wasteful duplication
of effort. Accordingly, he finds that the interests of justice
clearly militate in favor of a transfer in this instance.
Finally, the Judge notes that given its status as one of the most
congested dockets in the country (with an average caseload per
judgeship of 1,302 in the Eastern District as of June 2018, as
opposed to the Central District's 486 pending cases per judge as of
the same date), engaging in duplicative work is not an empty
concern. The relative congestion of the calendars of the potential
transferee and transferor courts is also properly considered in
determining whether a transfer would serve the interests of
justice.
For the reasons set forth, Judge England granted the Defendant's
Motion to Transfer Venue. He transferred the case to the Central
District of California. The Clerk of the Court is directed to
close the case once that transfer has been effectuated.
A full-text copy of the Court's May 8, 2019 Memorandum and Order is
available at https://is.gd/YZyxAa from Leagle.com.
William D. Brice, Plaintiff, represented by Jeffrey D. Jennings,
National Right to Work Legal Defense Foundation, pro hac vice,
Milton L. Chappell, National Right To Work Legal Defense
Foundation, pro hac vice & Steven R. Burlingham, Gary, Till,
Burlingham & Lynch.
California Faculty Association, Defendant, represented by Scott A.
Kronland -- skronland@altshulerberzon.com -- Altshuler Berzon LLP &
Patrick Casey Pitts -- cpitts@altshulerberzon.com -- Altshuler
Berzon, LLP.
CAPSTONE LOGISTICS: Bid for Summary Judgment in Furlough Granted
----------------------------------------------------------------
In the case, DEANDRE FURLOUGH, Plaintiff, v. CAPSTONE LOGISTICS,
LLC, et al., Defendants, Case No. 18-cv-02990-SVK (N.D. Cal.),
Magistarte Judge Susan van Kuelen of the U.S. District Court for
the Northern District of California granted the Defendants' motion
for summary judgment.
Plaintiff Furlough, a former employee of Defendants Capston and
Pinnacle Workforce Logistics, LLC, sues the Defendants on
individual and putative class action bases for engaging in various
wage and hour violations under the California Labor Code and the
applicable Industrial Wage Commission ("IWC") Wage Order. The
Plaintiff was employed by Capstone as a freight handler from
approximately Sept. 14, 2017 to Dec. 20, 2017. The Plaintiff had
previously been employed by Capstone for several months in 2015.
At the time the Plaintiff applied for employment with Capstone in
2017, Capstone used Recruiting Management ("RM"), a paperless
web-based system developed by ADP for tracking employment
applicants and onboarding new employees. In support of their
motion for summary judgment, the Defendants provided a printed log
of the Plaintiff's interactions with RM. The Plaintiff does not
dispute that he applied for a freight handler position through RM,
or that he received an offer of employment through RM.
The Plaintiff acknowledged that he received and had read or would
read Capstone's Associate Handbook as one step in completing the
onboarding_eform on Sept. 13, 2017. The Associate Handbook in
effect on that date included a section on "Dispute Resolution" that
stated that "Capstone maintains an Arbitration Program." The
Associate Handbook contains some description of the Arbitration
Program but states that the terms of the Company's
Employment-At-Will and Arbitration Agreement, not the policy,
control the arbitration program.
On April 13, 2018, te Plaintiff filed a class action complaint in
Santa Clara County Superior Court, alleging violations of the
California Labor Code, Business and Professions Code, and the
applicable IWC Wage Order. The Defendants removed the action to
the Court.
After removing the action from Santa Clara County Superior Court to
the Court, the Defendants moved to compel individual arbitration of
the Plaintiff's claims pursuant to an arbitration agreement
contained in materials that the Defendants contend the Plaintiff
received and acknowledged during the hiring process. On Sept. 24,
2018, the Court denied the motion to compel arbitration, holding
that there were issues of fact concerning whether an arbitration
agreement exists and setting a jury trial on that issue. All the
parties have consented to the jurisdiction of a magistrate judge.
After conducting discovery on the issue of whether an arbitration
agreement exists, both sides have now moved for summary judgment on
that issue. The Court held a hearing on April 30, 2019.
Based on a careful review of the parties' submissions, arguments at
the hearing, the case file, and relevant law, Magistrate Judge
Kuelenfinds that an ar bitration agreement exists. The facts and
circumstances of the case lead her to conclude that the Plaintiff's
check box acknowledgments and his e-signature constitute his
consent to the Arbitration Agreement. And because the Plaintiff
did not directly transport goods while at Capstone and he has not
shown that Capstone is in the transportation industry itself, the
Plaintiff is not a transportation worker falling within an
exemption from the FAA.
The Magistrate concludes that the Defendants have established that
there is no genuine dispute of material fact concerning the
existence of an arbitration agreement. Accordingly, she granted
the Defendants' motion for summary judgment that an arbitration
agreement exists, and denied the Plaintiff's cross-motion for
summary judgment on that issue.
On June 11, 2019 at 10:00 a.m., the Court will hold a status
conference to determine what issues remain in the case in light of
the finding that there is an arbitration agreement, as well as how
to proceed on the remaining issues. The parties are ordered to
file a joint statement, not to exceed five pages, setting forth
their views on these issues no later than June 4, 2019
A full-text copy of the Court's May 10, 2019 Order is available at
https://is.gd/0SrunV from Leagle.com.
Deandre Furlough, Plaintiff, represented by Geoff Drew La Val --
glaval@grahamhollis.com -- Graham Hollis APC, Graham Stephen Paul
Hollis -- ghollis@grahamhollis.com -- GrahamHollis A.P.C., Vilmarie
Cordero -- vcordero@grahamhollis.com -- GrahamHollis APC & Hali
Michelle Anderson, Sheppard Mullin Richter and Hampton LLP.
Capstone Logistics, LLC, Defendant, represented by Gerald L.
Maatman, Jr. -- gmaatman@seyfarth.com -- Seyfarth Shaw LLP, pro hac
vice, Jennifer A. Riley -- jriley@seyfarth.com -- Seyfarth Shaw
LLP, Jinouth Desiree Vasquez Santos, Seyfarth Shaw LLP, Matthew
James Gagnon, Seyfarth Shaw LLP & Eric E. Hill --
ehill@seyfarth.com -- Seyfarth Shaw LLP.
Pinnacle Workforce Logistics LLC, Defendant, represented by Gerald
L. Maatman, Jr., Seyfarth Shaw LLP, Jennifer A. Riley, Seyfarth
Shaw LLP, Jinouth Desiree Vasquez Santos, Seyfarth Shaw LLP,
Matthew James Gagnon, Seyfarth Shaw LLP & Eric E. Hill, Seyfarth
Shaw LLP.
CARVANA LLC: Faces Schrenk Suit in California Superior Court
------------------------------------------------------------
A class action lawsuit has been filed against Carvana Group LLC.
The case is captioned as Keith Schrenk on behalf of himself and all
other persons similarly situated, the Plaintiff, vs. Carvana Group
LLC, Carvana LLC, and Does 1-100, the Defendants, Case No.
34-2019-00257244-CU-BT-GDS (Cal. Super., May 24, 2019).
Carvana, LLC retails used cars online. The company offers sedans,
sport utility vehicles, convertibles, trucks, mini-vans,
hatchbacks, coupes, and wagons. It also provides car trade-in and
financing options. The company was incorporated in 2012 and is
based in Phoenix, Arizona. It has distribution centers in Atlanta,
Georgia; Nashville, Tennessee; and Charlotte, North Carolina. The
company also has physical presence in Houston, Austin, Dallas, San
Antonio, and Pittsburgh, Texas; and St. Louis, Missouri. Carvana,
LLC operates as a subsidiary of Carvana Group, LLC.[BN]
Attorneys for the Plaintiff:
Timothy D. Cohelan, Esq.
COHELAN & KHOURY
605 C St Ste 200
San Diego, CA 92101-5394
Telephone: (619) 595-3001
Facsimile: (619) 595-3000
E-mail: tcohelan@ckslaw.com
CHECKERS DRIVE-IN: Medgebow Seeks Approval of $3.46MM Settlement
----------------------------------------------------------------
The Plaintiff in the lawsuit captioned JOEL MEDGEBOW, individually
and on behalf of all others similarly situated v. CHECKERS DRIVE-IN
RESTAURANTS INC., Case No. 9:19-cv-80090-BB (S.D. Fla.), asks the
Court to:
(1) grant preliminary approval of the Parties' proposed Class
Action Settlement Agreement and Release;
(2) certify for settlement purposes only the proposed
Settlement Class, pursuant to Rule 23(b)(3) and (e) of the
Federal Rules of Civil Procedure;
(3) approve the Settlement Class Notice Program set forth in
the Agreement and approve the form and content of the
notices and Claim Form, attached to the Agreement;
(4) approve and order the opt-out and objection procedures set
forth in the Agreement;
(5) appoint Plaintiff Joel Medgebow as Class Representative;
(6) appoint as Class Counsel the Plaintiff's counsel; and
(7) schedule a Fairness Hearing.
On January 23, 2019, the Plaintiff filed his original class action
complaint against Checkers alleging that Checkers violated the
Telphone Consumer Protection Act ("TCPA"), a federal privacy
statute which affords consumers a private right of action, seeking
statutory damages for the Class. The Settlement Agreement reached
provides compensation for the post-revocation text messages that
were sent by Checkers to the Plaintiff and Settlement Class
Members.
The Agreement provides, inter alia, for a Settlement Fund in the
amount of $3,461,850, from which the Defendant is required to pay
up to $450 to Settlement Class members who submit a valid Claim,
and potential awards of attorneys' fees and costs and a Service
Award to the named Plaintiff, as well as injunctive relief. The
parties will create a website and direct notice will be sent by
U.S. mail to those Settlement Class Members for whom mailing
addresses can be determined, and by e-mail to those Settlement
Class Members who provided his or her e-mail to Checkers.[CC]
The Plaintiff is represented by:
Joshua H. Eggnatz, Esq.
Michael J. Pascucci, Esq.
EGGNATZ PASCUCCI
7450 Griffin Rd., Suite 230
Davie, FL 33314
Telephone: (954) 889-3359
Facsimile: (954) 889-5913
E-mail: JEggnatz@JusticeEarned.com
MPascucci@JusticeEarned.com
- and -
Seth M. Lehrman, Esq.
EDWARDS POTTINGER, LLC.
425 North Andrews Avenue, Suite 2
Fort Lauderdale, FL 33301
Telephone: (954) 524-2820
Facsimile: (954) 524-2822
E-mail: seth@epllc.com
CHESAPEAKE & DELAWARE: Reynolds Hits Illegal Tip Pool
-----------------------------------------------------
Christina Mary Reynolds, on behalf of herself and all others
similarly situated, Plaintiff, v. Chesapeake & Delaware Brewing
Holdings, LLC, Chesapeake & Delaware Brewing Pennsylvania Holdings,
LLC, Iron Hill Brewery, LLC, Kevin Finn, Mark Edelson, Kevin Davies
and Doe Defendants 1-10, Defendants, Case No. 19-cv-02184 (E.D.
Pa., May 20, 2019), seeks to recover minimum and overtime wages
under the Fair Labor Standards Act, the Pennsylvania Minimum Wage
Act and the Wage Payment and Collection Law.
Defendants operate a restaurant chain in Pennsylvania where
Reynolds was employed as a tipped server at their North Wales
restaurant. She claims to be denied overtime pay and her tips
subjected to unauthorized tip credit. [BN]
Plaintiff is represented by:
Gary F. Lynch, Esq.
Edward W. Ciolko, Esq.
Matthew D. Brady, Esq.
CARLSON LYNCH SWEET KILPELA & CARPENTER, LLP
1133 Penn Avenue, 5th Floor
Pittsburgh, PA 15222
Tel: (412) 322-9243
Email: glynch@carlsonlynch.com
eciolko@carlsonlynch.com
zmbrady@carlsonlynch.com
- and -
Gerald D. Wells, III, Esq.
Robert J. Gray, Esq.
CONNOLLY WELLS & GRAY, LLP
2200 Renaissance Blvd., Suite 275
King of Prussia, PA 19406
Telephone: (610) 822-3700
Facsimile: (610) 822-3800
Email: gwells@cwglaw.com
rgray@cwglaw.com
CIRKUL INC: Thomas Seeks Unpaid Overtime Premiums
-------------------------------------------------
Bryan Thomas, on behalf of himself and those similarly situated,
Plaintiff, v. Cirkul, Inc., Defendant, Case No. 19-cv-01240 (M.D.
Fla., May 20, 2019), seeks to recover minimum wages, overtime
compensation, withheld tips, liquidated damages and reasonable
attorneys' fees and costs under the Fair Labor Standards Act.
Cirkul operates a manufacturing facility in Tampa, Florida where
Thomas worked as a line worker. Thomas claims to have worked in
excess of 40 hours per week without being paid overtime premiums.
[BN]
Plaintiff is represented by:
Noah E. Storch, Esq.
RICHARD CELLER LEGAL, P.A
7450 Griffin Road, Suite 230
Davie, FL 33314
Telephone: (866) 344-9243
Facsimile: (954) 337-2771
Email: noah@floridaovertimelawyer.com
CLOUDERA INC: Christie Sues Over Securities Exchange Act Breach
---------------------------------------------------------------
SHANICE CHRISTIE, Individually and on behalf of all other similarly
situated, Plaintiff, v. CLOUDERA, INC., THOMAS J. REILLY, JIM
FRANKOLA, AND MICHAEL A. OLSON, Defendants, Case No. 5:19-cv-03221
(N.D. Cal., June 7, 2019) is a securities class action on behalf of
all purchasers of Cloudera common stock between April 28, 2017 and
June 5, 2019, inclusive (the "Class Period"). The claims asserted
herein are alleged against Cloudera, the Company’s former Chief
Executive Officer, Thomas J. Reilly, Chief Financial Officer, Jim
Frankola, and Michael A. Olson, the Company’s founder and former
Chairman, and arise under the Securities Exchange Act of 1934 (the
"Exchange Act").
Throughout the Class Period, defendants failed to disclose adverse
facts pertaining to the Company’s business, operations, and
financial condition, which were known to or recklessly disregarded
by Defendants. Specifically, Defendants failed to disclose that:
(i) Cloudera was finding it increasingly difficult to identify
large enterprises interested in adopting the Company’s
Hadoop-based platform; (ii) Cloudera needed to expend an increasing
amount of capital on sales and marketing activities to generate new
revenues, even as new revenue opportunities were diminishing; and
(iii) Cloudera had materially diminished sales opportunities and
prospects and could not generate annual positive cash flows. The
truth began to be revealed on April 3, 2018 when, in connection
with its Q4 and FY 2018 financial results, the Company provided a
disappointing outlook for fiscal 2019 along with missed revenue
numbers.
This news contradicted Defendants’ prior positive statements and
were all the more surprising as they had come less than a year
after Cloudera had gone public. As a result of the defendants’
wrongful acts and omissions, and the precipitous decline in the
market value of Cloudera’s stock, Plaintiff and other Class
members have suffered significant losses and damages, says the
complaint.
Plaintiff Shanice Christie purchased Cloudera common stock on the
public market during the Class Period.
Defendant Cloudera is a data management and software company
incorporated under the laws of Delaware.[BN]
The Plaintiff is represented by:
Frank J. Johnson, Esq.
Brett M. Middleton, Esq.
JOHNSON FISTEL, LLP
655 West Broadway, Suite 1400
San Diego, CA 92101
Phone: (619) 230-0063
Facsimile: (619) 255-1856
Email: FrankJ@johnsonfistel.com
BrettM@johnsonfistel.com
CN TRANSPORTATION: Removes Rogers Suit to N.D. Illinois
-------------------------------------------------------
The Defendant in the case, RICHARD ROGERS, individually and on
behalf of all other similarly situated, Plaintiff v. CN
TRANSPORTATION LIMITED, Defendant, filed a notice to remove the
lawsuit from the Circuit Court of the State of Illinois, County of
Cook (Case No. 2019 CH 05129) to the U.S. District Court for the
Northern District of Illinois on May 31, 2019. The clerk of court
for the Northern District of Illinois assigned Case No.
1:19-cv-03647. The case is assigned to Honorable Rebecca R.
Pallmeyer.
CN Transportation Limited provides freight transportation services,
general cartage, load transportation services, and logistics
services. [BN]
The Plaintiff is represented by:
David Louis Gerbie, Esq.
Myles P. McGuire, Esq.
MCGUIRE LAW, P.C.
55 W. Wacker, 9th Floor
Chicago, IL 60601
Telephone: (312) 893-7002
E-mail: dgerbie@mcgpc.com
mmcguire@mcgpc.com
The Defendant is represented by:
Charles Andrewscavage, Esq.
SCOPELITIS GARVIN LIGHT HANSON & FEARY
30 W. Monroe St., Suite 600
Chicago, IL 60603
Telephone: (312) 255-7167
E-mail: candrewscavage@scopelitis.com
- and -
Andrew Joseph Butcher, Esq.
SCOPELITIS GARVIN LIGHT HANSON & FEARY
30 W. Monroe St., Suite 600
Chicago, IL 60603
Telephone: (312) 255-7172
E-mail: abutcher@scopelitis.com
COCRYSTAL PHARMA: Insurer Declines to Cover Costs in Pepe Suit
--------------------------------------------------------------
Cocrystal Pharma, Inc. said in its Form 10-Q Report filed with the
Securities and Exchange Commission on May 10, 2019, for the
quarterly period ended March 31, 2019, that the company's insurance
company has initially declined to cover the class action suit
initiated by Anthony Pepe.
On September 20, 2018, Anthony Pepe, individually and on behalf of
a class, filed with the United States District Court for the
District of New Jersey a complaint against the Company, certain
current and former executive officers and directors of the Company
and the other defendants named therein for violation of Section
10(b) of the Exchange Act and Rule 10b-5 promulgated thereunder.
The class consists of the persons and entities who purchased the
Company's common stock during the period from September 23, 2013
through September 7, 2018. Pepe also alleges violation of other
sections of the Exchange Act by the defendants named in the
complaint other than the Company.
Pepe seeks damages, pre-judgment and post-judgment interest,
reasonable attorneys' fees, expert fees and other costs.
Cocrystal said, "We were recently notified that our insurance
company has initially declined to cover the class action and
related derivative action. The insurance company had previously
delayed reimbursing our legal fees related to the SEC subpoena we
received in 2015 requesting information, but ultimately paid us
that sum and never declined coverage. We have retained specialized
insurance legal counsel to analyze and strategize our options.
While we cannot quantify the amount of litigation costs, they are
likely to be material as would be any adverse judgment or
settlement amount."
Cocrystal Pharma, Inc., a clinical stage biotechnology company,
engages in discovering and developing various novel antiviral
therapeutics that target the replication machinery of hepatitis
viruses, influenza viruses, and noroviruses. Cocrystal Pharma, Inc.
was founded in 2007 and is headquartered in Tucker, Georgia.
COMMUNITY ALTERNATIVES: Court Denies Certification in RICO Suit
---------------------------------------------------------------
The United States District Court for the Northern District of
California issued an Order denying Plaintiffs' Motion for Class
Certification in the case captioned ROBERT JACKSON, JAMES BROOKS,
and KYSER WILSON, individually and on behalf of others similarly
situated, Plaintiffs, v. LEADERS IN COMMUNITY ALTERNATIVES, INC.,
Defendant. No. C 18-04609 WHA. (N.D. Cal.).
In this putative class action under the Racketeer Influenced and
Corrupt Organizations Act, plaintiffs move for class certification.
The County of Alameda contracted with defendant Leaders in
Community Alternatives, Inc. to provide an electronic-monitoring
program, including GPS and alcohol monitoring, for criminal
defendants on pre-trial release or home detention. Plaintiffs
allege that they all paid LCA amounts they could not afford because
LCA threatened to violate them so that they would return to jail if
they failed to pay LCA's fee.
Based on this, the plaintiffs assert a RICO claim based on
predicate acts of extortion under state and federal law. They seek
to certify the following class pursuant to Federal Rules of Civil
Procedure 23(a) and 23(b)(3):
All individuals who have been or will be put on LCA's Electronic
Monitoring program by the Alameda County Court system from July 31,
2014, until this litigation is complete, who were threatened with
jail by LCA or any of its employees, agents, or representatives.
Certification under FRCP 23(b)(3) is a two-step process. The
Plaintiffs must first show that the class meets the following four
requirements of FRCP 23(a): (1) the class is so numerous that
joinder of all members is impracticable (2) there are questions of
law or fact common to the class (3) the claims or defenses of the
representative parties are typical of the claims or defenses of the
class and (4) the representative parties will fairly and adequately
protect the interests of the class. Plaintiffs must next establish
that the questions of law or fact common to class members
predominate over any questions affecting only individual members,
and that a class action is superior to other available methods for
fairly and efficiently adjudicating the controversy.
To prove their RICO claim, the plaintiffs will need to show (1) the
conduct (2) of an enterprise (3) through a pattern (4) of
racketeering activity.
The Plaintiffs describe this case as being about Alameda County
allowing a private company to extort money from poor Californians.
In an effort to show a pattern of extortionate conduct, the
plaintiffs submitted declarations from seven putative class members
wherein they checked boxes indicating the types of statements made
to them by LCA employees. For example, a putative class member
could indicate whether he was told that he would be incarcerated if
he was late on payments or did not make full payments or was told
that he would or could go to jail if he was late on payments or did
not make full payments.
The Plaintiffs also submitted declarations from five former (and
seemingly disgruntled) LCA employees. As these declarations
highlight, conversations between these employees and their clients
regarding the possibility of jail varied. While Ms. Barrera said
that it was an every day thing to hear case managers tell people
they would go to jail if they did not pay, Ms. Ambriz overheard
case managers telling clients that they needed to make their
payments because otherwise they would be terminated from the
program and, ultimately, thrown in jail. Ms. Vargas, in turn,
stated in her declaration that she heard clients being told it was
either this comply with LCA or jail during enrollment as a way to
ensure they would make payments in the future.
During the evidentiary hearing, former-LCA employees Yvette
Barrera, Maria Vargas and Claudia Canas spoke to the fearful
tactics they and other LCA employees used to obtain payments. The
context and wording of the threats the former employees purportedly
made varied. For example, Ms. Barrera testified that she and other
LCA employees would tell the clients that we had to do an Incident
Report and we would tell them that if they didn't make a payment,
they would have to go back to jail. Ms. Barrera was directed by her
superiors to Just send an Incident Report.
Ms. Vargas, in turn, testified that if her LCA clients refused to
give a payment or were completely non-compliant then she would tell
them it would be this or jail. She elaborated that if after
multiple warnings the participant still failed to pay, she would
send a violation report to the client and the court and "take the
bracelet back off and basically that would mean them going back to
jail in that sense.
This evidentiary record demonstrates that maintaining a class
action under FRCP 23(b)(3) is inappropriate in this case. It is
undisputed that no formal training or policy required or encouraged
LCA employees to threaten putative class members. Nor were any
allegedly extortionate threats made in writing. Rather, plaintiffs'
RICO claim is premised on allegations that LCA employees orally and
wrongfully threatened putative class members with jail if they
failed to pay LCA's fees. Yet LCA clearly does not engage in
extortion merely by demanding fees properly owed under its
electronic-monitoring program
It is also undisputed that LCA employees do not engage in extortion
simply by informing participants that they will submit an incident
report to the court if the individual fails to comply with the
program's requirements. Jail is a potential sanction that a court
may impose if an individual willfully refuses to pay their fees,
and plaintiffs' counsel has rightfully conceded that LCA has an
ethical obligation to inform program participants that a possible
consequence of nonpayment is returning to jail.
A key issue at trial will accordingly be whether LCA employees
referenced the possibility of jail as an appropriate advisements of
the program's requirements or, rather, as an extortionate threat
made to wrongfully instill fear and profit LCA. At most, the
testimony presented at the evidentiary hearing could provide a
common method of proving that LCA employees had an Alameda
County-wide practice of acting as bill collectors and reminding
clients that they might go to jail if they failed to pay. This does
not, however, amount to a common method of proving a pattern of
extortionate threats in the furtherance of a RICO enterprise.
The Plaintiffs have failed to carry their burden under FRCP
23(b)(3) of showing that common issues of fact or law will
predominate in resolving their RICO claim. The motion for class
certification is accordingly denied.
The Plaintiffs' motions for class certification is denied. This
case will proceed to trial as scheduled on an individual basis.
A full-text copy of the District Court's June 6, 2019 Order is
available at https://tinyurl.com/y6k9jzo9 from Leagle.com.
William Edwards, on behalf of himself and others similarly
situated, Robert Jackson, on behalf of himself and others similarly
situated, James Brooks, on behalf of himself and others similarly
situated & Kyser Wilson, on behalf of himself and others similarly
situated, Plaintiffs, represented by Marissa Hatton, pro hac vice &
Phil Telfeyan, Equal Justice Under Law, 400 7th Street NW, Suite
602, Washington DC 20004
Leaders in Community Alternatives, Inc., Alameda County & Wendy
Still, Defendants, represented by Kevin E. Gilbert --
kgilbert@ohshlaw.com -- Orbach, Huff, Suarez & Henderson, Kristina
Doan Strottman -- kstrottman@bwslaw.com -- &Susan Eileen Coleman --
scoleman@bwslaw.com -- Burke, Williams & Sorensen LLP.
Supercom, Inc., Linda Connelly, Diane Harrington, Kent Borowick,
Raelene Rivas & Jeanette Arguello-Ramos, Defendants, represented by
Kristina Doan Strottman & Susan Eileen Coleman, Burke, Williams &
Sorensen LLP.
CORE-MARK INT'L: Court Partly Grants Bid to Dismiss Brown FCRA Suit
-------------------------------------------------------------------
Chief Magistrate Judge Joseph C. Spero of the U.S. District Court
for the Northern District of California granted in part and denied
in part Core-Mark's motion to dismiss the case, WILLIE A. BROWN,
Plaintiff, v. CORE-MARK INTERNATIONAL, INC., Defendant, Case No.
18-cv-07451-JCS (N.D. Cal.).
In the putative class action, Brown brings two claims under the
Fair Credit Reporting Act ("FCRA") against his former employer, the
Defendant. Brown alleges that when he applied and was hired for a
job with Core-Mark, he was confused by a disclosure form purporting
to indicate that Core-Mark could obtain consumer reports related to
Brown, and that he therefore "did not give valid authorization for
Core-Mark to procure a consumer report. He alleges that Core-Mark
nevertheless subsequently obtained such a report.
Seeking to represent a class of similarly situated employees and
applicants, Brown brings claims under 15 U.S.C. Section
1681b(b)(2)(A)(i), for failure to provide proper disclosure that a
consumer report may be obtained, and under 15 U.S.C. Section
1681b(b)(2)(A)(ii), for failure to obtain proper authorization to
obtain such a repor. He contends that Core-Mark's purported
violations were willful and that he and the putative class are
therefore entitled to statutory damages under 15 U.S.C. Section
1681n.
Core-Mark moves for judgment on the pleadings under Rule 12(c) on
the basis that the disclosure is clear on its face. It
distinguishes Gilberg on the basis that the sentence at issue in
that case was grammatically incorrect, while the sentence at issue
-- otherwise substantially identical—corrects that error by using
a comma instead of a semicolon. Core-Mark also moves to dismiss
for lack of subject matter jurisdiction under Rule 12(b)(1),
arguing that Brown lacks Article III standing to bring a claim
because Core-Mark's disclosure form did not violate the FCRA.
Finally, it briefly moves in the alternative to dismiss for failure
to state a claim under Rule 12(b)(6), based on the same arguments.
Brown argues that the case should go forward because the
disclosure form did not meaningfully differ from the form at issue
in Gilberg, and because he should be allowed to present evidence as
to how a reasonable person would understand its language.
Judge Spero finds that Lee v. Hertz Corporation, the only case that
Core-Mark cites dismissing an FCRA claim for lack of standing,
predated yed v. M-I, LLC and is distinguishable from the facts at
hand. There, the plaintiffs did not allege that the disclosures
they received prevented them from understanding that they were
authorizing Hertz to procure a background report. Brown alleges
that he was confused by the standard disclosure form and did not
understand that Core-Mark would be requesting a 'consumer report'
as defined in the FCRA. On the issue of standing, the case is
therefore analogous to Syed, not Lee. Core-Mark's motion to
dismiss under Rule 12(b)(1) will be denied.
As to the Motion for Judgment on the Pleadings Under Rule 12(c),
the Judge finds that when asked at the hearing how the word
"however" could induce confusion as it is used in Core-Mark's
disclosure, Brown's attorney's answer was not persuasive, and mere
reference to Gilberg v. California Check Cashing Stores, LLC does
not explain how the disclosure here could be unclear when the
grammatical error identified in that case has been resolved. The
similarity to Gilberg is the only basis for a lack of clarity
identified in Brown's complaint, and Brown's claims will therefore
be dismissed for failure to state a claim on which relief can be
granted.
It is conceivable, however, that the disclosure could be unclear
for other reasons. If Brown believes that some other aspect of the
disclosure was not "clear" within the meaning of the FCRA, he may
amend his complaint to present such a theory. In order to have
standing to pursue a claim based on a different reason the
disclosure was unclear, Brown must have actually been confused by
the purported lack of clarity underlying his claim and must so
allege, and any such amendment must, of course, have a sufficient
basis in fact to comply with Rule 11 of the Federal Rules of Civil
Procedure.
For the reasons discussed, Judge Spero denied Core-Mark's motion to
dismiss for lack of jurisdiction, but granted the motion for
judgment on the pleadings on the basis that Brown has not plausibly
alleged that Core-Mark's disclosure was "unclear" merely on account
of its similarity to the disclosure in Gilberg. He dismissed
Brown's claims with leave to amend. If Brown was in fact confused
by some other aspect of the disclosure and can amend his complaint
to cure the deficiencies identified, he may file an amended
complaint no later than May 24, 2019.
A full-text copy of the Court's May 10, 2019 Order is available at
https://is.gd/8kap6L from Leagle.com.
Willie A. Brown, an individual, on behalf of himself and others
similarly situated, Plaintiff, represented by Kelsey M. Szamet,
Kingsley and Kingsley, APC, Emil Davtyan, Davtyan Professional Law
Corporation, Eric B. Kingsley, Kingsley & Kingsley, APC & Liane
Katzenstein Ly, Kingsley & Kingsley, APC.
Core-Mark International, Inc., Defendant, represented by James
Randall Coffey -- rcoffey@fisherphillips.com -- Fisher Phillips
LLP, Annie Lau -- alau@fisherphillips.com -- Fisher and Phillips
LLP & Jessie Fox Bustamante -- jbustamante@fisherphillips.com --,
Fisher Phillips LLP.
CORECIVIC OF TN: Filing of Gonzalez Deal Approval Bid Due July 15
-----------------------------------------------------------------
In the case, Jose Gonzalez, an individual, on behalf of himself and
all others similarly situated, Plaintiff, v. CoreCivic of Tennesee,
LLC (formerly CCA of Tennessee, LLC), and Does 1 through 10,
inclusive, Defendants, Case No. 1:16-cv-01891-DAD-JLT (E.D. Cal.),
Magistrate Judge Jennifer L. Thurston of the U.S. District Court
for the Eastern District of California continued the deadline for
the Plaintiffs to file their unopposed motion for preliminary
approval of class action settlement to July 15, 2019.
On Nov. 30, 2018, the parties agreed to settle the matter on terms
that are different than those the Court previously refused to
accept. Because the end of the class period agreed upon by the
parties is Feb. 28, 2019, the parties could not obtain complete
payroll and time keeping data for currently employed class members
until after that date.
On Jan. 22, 2019, the Court ordered the unopposed motion for
preliminary approval of class action settlement to be filed no
later than March 29, 2019. On March 27, 2019, based on a
stipulation submitted by the parties, the Court continued the
deadline for the Plaintiff to file the motion for preliminary
approval to April 29, 2019.
Since March 27, 2019, the Defendant has continued to work
diligently to compile time keeping data through Feb. 28, 2019.
Compiling the time-keeping data in an electronic format that can be
produced to the counsel for the Plaintiff has taken longer than
anticipated because the electronic time records are contained in
individual spreadsheets for approximately 1200 individuals, which
increased the amount of time it took for Defendant to generate the
electronic time records as well as the time it has taken for the
counsel for the Defendant to review the electronic time records and
to format the time records so they can be produced to the
Plaintiff's counsel by removing the employee name on each time
record and replacing it with a DOE designation.
The counsel for the Defendant is now in possession of all the of
the electronic time records and has produced them to the
Plaintiff's counsel on April 29, 2019. The time keeping data is
necessary for the Plaintiffs' counsel to prepare the unopposed
motion for preliminary approval of class action settlement. The
sheer volume of the data within the excel sheets has taken longer
than expected to combine and analyze.
The parties agree that it is in each of their best interest to
continue the current deadline for the Plaintiffs to file their
unopposed motion for preliminary approval of class action
settlement to allow them to analyze the newly-produced data.
Therefore, the parties stipulated and agreed to continue the
deadline for the Plaintiffs to file their unopposed motion for
preliminary approval of class action settlement to June 14, 2019.
Having reviewed the Stipulation to Continue the Filing Date of the
Plaintiff's Unopposed Motion for Preliminary Approval of Class
Action Settlement and finding good cause for the relief requested
therein, Judge Thurston ordered that the deadline for the
Plaintiffs to file their unopposed motion for preliminary approval
of class action settlement is continued to July 15, 2019. The
Court does not anticipate again extending this deadline.
A full-text copy of the Court's May 10, 2019 Order is available at
https://is.gd/WpQ6g9 from Leagle.com.
Jose Gonzalez, Plaintiff, represented by Peter R. Dion-Kindem,
Peter R. Dion-Kindem, P.C., Adrian R. Bacon, Law Offices of Todd
M.
Friedman, P.C., Jeff Holmes, Jeff Holmes, Esq., Lonnie C.
Blanchard, III -- lonnieblanchard@gmail.com -- The Blanchard Law
Group, APC & Todd M. Friedman, Law Offices of Todd M. Friedman,
P.C.
CoreCivic of Tennessee, LLC & CoreCivic, Inc., Defendants,
represented by Paul M. Gleason -- pgleason@gleasonfavarote.com --
Gleason and Favarote LLP.
CORPUS CHRISTI, TX: Denial of Bid to Dismiss Trevino Suit Reversed
-------------------------------------------------------------------
The Court of Appeals of Texas, Thirteenth District, Corpus Christi,
Edinburg, issued a Memorandum Opinion affirming in part and
reversing in part Defendant's Motion to Dismiss in the case
captioned CITY OF CORPUS CHRISTI, Appellant, v. BACILIA TREVINO,
Appellee. No. 13-18-00442-CV. (Tex. App.).
The City appeals the Trial Court denial of its Motion to Dismiss
for lack of subject matter jurisdiction.
Appellee Becilia Trevino filed suit against appellant, the City of
Corpus Christi (City), alleging several causes of action after the
City issued a boil-water advisory.
APPLICABLE LAW
Sovereign immunity protects the State from lawsuits for money
damages. Political subdivisions of the state, including cities, are
entitled to such immunity referred to as governmental immunity
unless it has been waived.
To waive immunity, consent to suit must ordinarily be found in a
constitutional provision or legislative enactment. A statute shall
not be construed as a waiver of sovereign immunity unless the
waiver is effected by clear and unambiguous language.
Negligent Misrepresentation and Negligence Claims
Trevino's petition alleges that her health was jeopardized by the
City's negligence. Her counsel explained during oral argument
before this Court that the City had a duty to provide safe drinking
water and Trevino, an elderly woman, drank un-boiled water during
the advisory, causing her personal injury such as nausea. Trevino
also alleges negligent misrepresentation since the City failed to
provide water to Trevino according to their contract.
Trevino relies on Section 101.0215(a) of the Texas Tort Claims Act
(TTCA) for the proposition that governmental immunity is waived for
all claims arising out of a city's performance of governmental
functions. To the contrary, Section 101.0215(a) provides that a
municipality is liable under this chapter for damages arising from
its governmental functions.
Trevino fails to direct us to any waiver of immunity under the TTCA
that would apply to her negligent misrepresentation claim, and we
find none.
The TTCA expressly waives sovereign immunity for: (1) property
damage, personal injury, and death proximately caused by the
wrongful act or omission or the negligence of an employee acting
within his scope of employment if: (A) the property damage,
personal injury, or death arises from the operation or use of a
motor-driven vehicle or motor-driven equipment and (B) the employee
would be personally liable to the claimant according to Texas law
and (2) personal injury and death so caused by a condition or use
of tangible personal or real property if the governmental unit
would, were it a private person, be liable to the claimant
according to Texas law.
The City argued in the alternative, though, that the trial court
lacked jurisdiction because Trevino failed to comply with the
TTCA's notice requirement. The Court agrees.
This notice requirement is jurisdictional.
Trevino acknowledges that she did not present the City with formal
written notice of her claim within six months but counters that the
City had actual notice of her claim. Trevino relies on the
issuance of the boil-water advisory itself as proof of actual
notice. But actual notice to a governmental unit requires knowledge
of (1) a death, injury, or property damage (2) the governmental
unit's alleged fault producing or contributing to the death,
injury, or property damages and (3) the identity of the parties.
The City's notice to the public at large about a potential health
hazard does not constitute actual notice that Trevino subsequently
suffered an injury from that hazard.
Finally, Trevino argues that the City was performing a proprietary
function, which, if true, would take her claim outside the TTCA and
its notice requirement. Trevino asserts that, although water and
sewer service is one of the governmental functions enumerated in
the TTCA, water service also constitutes a public utility, one of
the enumerated proprietary functions.
Because Trevino did not satisfy these requirements, the trial court
erred in denying the City's jurisdictional challenge to her
negligence claim.
Fraud Claims
Trevino also alleges the City committed common-law fraud by
charging her for services she did not receive. Similarly, she
alleges the City's failure to provide water according to the terms
of their contract constituted fraudulent misrepresentation.
The TTCA specially excepts intentional torts from its limited
waiver of immunity. Accordingly, the TTCA does not waive immunity
from fraud claims because fraud is an intentional tort. The trial
court erred in denying the City's jurisdictional challenge to
Trevino's fraud claims.
Breach of Contract
Trevino alleges the City had a duty to provide water to Trevino and
did not do that, thereby breaching their contract with Trevino.
A governmental unit that enters a contract waives immunity from
liability, but not immunity from suit. Chapter 271 of the Local
Government Code provides a limited waiver of immunity from suit
when a local governmental entity enters into a contract subject to
this subchapter defined as a written contract stating the
essential terms of the agreement for providing goods or services to
the local governmental entity.
The agreement between Trevino and the City does not fall under this
waiver because the City was providing goods or services to Trevino.
Trevino argues that her breach of contract claim is not subject to
governmental immunity in the first instance because the City was
performing a proprietary function. The Court have already
determined that the City was performing one of the TTCA's
enumerated governmental functions by providing Trevino water
services and that determination forecloses Trevino's argument.
The trial court erred in denying the City's jurisdictional
challenge to Trevino's breach of contract claim.
Civil Rights Violations
In response to the City's plea, Trevino filed an amended petition
alleging for the first time that the City violated her civil rights
pursuant to the Civil Rights Statute. In her brief to this Court,
Trevino cites to 42 U.S.C. Sections 1981 and 1983 as the vehicle
for bringing her civil rights claims but fails to identify any
specific constitutional violation. Whatever they may be, and this
Court expresses no opinion on the validity of such a claim under
the circumstances of this case, federal constitutional claims enjoy
supremacy over governmental immunity. Therefore, a plea to the
jurisdiction was not an appropriate procedural vehicle to dispose
of Trevino's civil rights claims and the Court affirms the trial
court's order denying the City's plea as to these claims.
Because there is no legislative waiver of governmental immunity
from Trevino's claims for negligent misrepresentation, fraud, or
breach of contract, the Court reverses that portion of the trial
court's order denying the plea to the jurisdiction as to those
claims.
And although Trevino has alleged a viable claim for negligence
based on the condition of the water, she failed to comply with the
jurisdictional notice requirement under the TTCA.
The Court also reverses the portion of trial court's order denying
the plea to the jurisdiction as to the negligence claim. The Court
renders judgment granting the plea to the jurisdiction as to
Trevino's negligent misrepresentation, fraud, breach of contract,
and negligence claims. The remainder of the trial court's order is
affirmed.
A full-text copy of the Tex. App.'s June 6, 2019 Memorandum Opinion
is available at https://tinyurl.com/y3sdldm5 from Leagle.com.
Mark DeKoch, 538 South Tancahua Street, Corpus Christi, TX 78401,
Renatto Garcia, 1201 Leopard St, Corp Christi, TX 78401-2120, for
City of Corpus Christi, Appellant.
William J. Tinning, 1013 Bluff Dr, Portland, TX 78374, for Bacilia
Trevino, Appellee.
CREDIT CONTROL: Schwartz Suit Terminated
----------------------------------------
Judge Pamela K. Chen terminated the case captioned Leah Schwartz,
individually, and on behalf of a class of similarly situated
persons, Plaintiffs, v. Credit Control, LLC d/b/a Credit Control &
Collections, LLC, Defendant, Case No. 19-cv-02963, (E.D. N.Y., May
20, 2019), following the Plaintiff's voluntary dismissal of the
case.[BN]
The Plaintiff is represented by:
Craig B. Sanders, Esq.
BARSHAY SANDERS, PLLC
100 Garden City Plaza, Suite 500
Garden City, NY 11530
Tel: (516) 203-7600
Fax: (516) 706-5055
Email: ConsumerRights@BarshaySanders.com
CSX TRANSPORTATION: Class Certification Sought in Diehl Suit
------------------------------------------------------------
The Class Plaintiffs in the lawsuit entitled DENORA DIEHL, on
behalf of herself and all others similarly situated v. CSX
TRANSPORTATION, INC., Case No. 3:18-cv-00122-KRG (W.D. Pa.), move
for class certification pursuant to Rule 23(a), 23(b)(3) and,
alternatively, Rule 23(c)(4) of the Federal Rules of Civil
Procedure.[CC]
The Class Plaintiffs are represented by:
D. Blayne Honeycutt, Esq.
FAYARD & HONEYCUTT, APC
519 Florida Avenue, SW
Denham Springs, LA 70726
Telephone: (225) 664-4193
E-mail: dbhoneycutt@fayardlaw.com
- and -
Mark P. Bryant, Esq.
Emily W. Roark, Esq.
BRYANT LAW CENTER
601 Washington Street
Paducah, KY 42003
Telephone: (270) 442-1422
E-mail: mark.bryant@bryantpsc.com
emily.roark@bryantpsc.com
- and -
David G. Bryant, Esq.
DAVID BRYANT LAW, PLLC
600 West Main Street, Suite 100
Louisville, KY 40202
Telephone: (502) 540-1221
E-mail: david@davidbryantlaw.com
- and -
Bryan S. Neiderhiser, Esq.
MARCUS & MACK, P.C.
57 South Sixth Street
Indiana, PA 15701
Telephone: (724) 349-5602
E-mail: bneiderhiser@marcusandmack.com
DIGNITY HEALTH: Submission of Klatt Settlement Docs Due July 1
--------------------------------------------------------------
In the case, MEGAN E. KLATT, an individual, on behalf of herself
and all others similarly situated, Plaintiff, v. DIGNITY HEALTH, a
California corporation; DOES 1-50, unknown individuals; and ROE
COMPANIES 1-50, unknown business entities, Defendants, Case No.
2:17-cv-02425-RFB-BNW (D. Nev.), Magistrate Judge Brenda Weksler of
the U.S. District Court for the District of Nevada granted the
Parties additional 45 days to submit the necessary settlement
documents, up to and including July 1, 2019.
The Parties submitted their Stipulation and Order to Continue
Settlement Documents Deadline. On Feb. 28, 2019, they attended
mediation and subsequently reached a settlement in principal.
Therefore, on April 5, 2019, they submitted a Stipulation and Order
to Suspend Dispositive Motion Deadlines Pending Settlement,
requesting that the dispositive motion deadlines be suspended while
they worked diligently to draft and agree upon the requisite
settlement documents.
Given the Parties' settlement, on April 10, 2019, the Court issued
an Order Granting the Stipulation to Suspend and directed the
Parties to file a stipulation to dismiss or dispositive motions by
May 17, 2019.
The Parties are currently in the process of finalizing a host of
complex and lengthy settlement documents, including a Joint Motion
for Preliminary Approval of Class Action Settlement and the
associated Joint Stipulation of Settlement, which will require
Court approval. As such, the Parties respectfully requested, and
Magistrate Judge Weksler granted, an additional 45 days to submit
the necessary settlement documents, up to and including July 1,
2019.
The Stipulation was submitted in good faith and not for the purpose
of delay.
A full-text copy of the Court's May 17, 2019 Order is available at
https://is.gd/tv9bwM from Leagle.com.
Megan E. Klatt, Plaintiff, represented by Christopher D. Kircher --
cdk@skrlawyers.com -- Semenza Kircher Rickard, Jarrod L. Rickard
-- jlr@skrlawyers.com -- Semenza Kircher Rickard & Lawrence J.
Semenza, III -- ljs@skrlawyers.com -- Semenza Kircher Rickard.
Dignity Health, Defendant, represented by Kirsten Ann Milton --
Kirsten.Milton@jacksonlewis.com -- Jackson Lewis PC, pro hac vice &
Daniel Aquino -- Daniel.Aquino@jacksonlewis.com -- Jackson Lewis
P.C..
DISTILL TABLE: Smith Hits Illegal Tip Pool, Seeks Minimum Pay
-------------------------------------------------------------
Chelsea Smith, on behalf of themselves and all others similarly
situated, Plaintiffs, v. Eddie Tancredi Culinary, Inc., Western
Reserve Distillers, LLC, Distill Table LLC, Eddie Tancredi,
Defendants, Case No. 19-cv-01149, (N.D. Ohio, May 20, 2019), seeks
unpaid overtime compensation, liquidated damages, attorneys' fees
and costs under the Fair Labor Standards Act and the Ohio Minimum
Fair Wage Standards Act.
Defendants operate a restaurant and distillery in the shared space
located at 14221 Madison Ave., Lakewood, OH under the name "Distill
Table" where Smith worked as a server. Defendants allegedly took a
"tip credit" thus rendering her wages less than the lawful minimum
wage. [BN]
Plaintiff is represented by:
Hans A. Nilges, Esq.
Shannon M. Draher, Esq.
NILGES DRAHER LLC
7266 Portage Street, N.W., Suite D
Massillon, OH 44646
Telephone: (330) 470-4428
Facsimile: (330) 754-1430
Email: hans@ohlaborlaw.com
sdraher@ohlaborlaw.com
- and -
Robi J. Baishnab, Esq.
NILGES DRAHER LLC
34 N. High St., Ste. 502
Columbus, OH 43215
Telephone: (614) 824-5770
Facsimile: (330) 754-1430
Email: rbaishnab@ohlaborlaw.com
- and -
Christopher J. Lalak, Esq.
NILGES DRAHER LLC
614 West Superior Ave., Ste. 1148
Cleveland, OH 44113
Telephone: (216) 230-2955
Email: clalak@ohlaborlaw.com
DRIVE SHACK: Wage-and-Hour Class Suit Ongoing
---------------------------------------------
Drive Shack Inc. said in its Form 10-Q Report filed with the
Securities and Exchange Commission on May 10, 2019, for the
quarterly period ended March 31, 2019, that the company continues
to defend a class action suit related to its alleged violation of
state wage and hour laws.
On February 19, 2019, a former employee filed a class action
complaint against the Company alleging that the company's
Traditional Golf properties in the State of New York did not comply
with state wage and hour laws, including New York Labor Law Section
190 et seq. and Section 196-d and 12 New York Codes, Rules and
Regulations Part 146, and seeking monetary damages under these
laws.
The Company has not accrued additional losses in connection with
this legal dispute because management does not believe there is a
probable and reasonably estimable loss at this time.
Drive Shack said, "However, the ultimate outcome of the proceedings
may have a material adverse effect on our business, financial
position or results of operations."
No further updates were provided in the Company's SEC report.
Drive Shack Inc. owns and operates golf-related leisure and
entertainment businesses. Its Entertainment Golf Venues segment
operates an entertainment golf venue in Orlando, Florida. The
company was formerly known as Newcastle Investment Corp. and
changed its name to Drive Shack Inc. in December 2016. Drive Shack
Inc. was founded in 2002 and is based in New York, New York.
DUKE UNIVERSITY: Settles No-Poach Class Action for $54.5MM
----------------------------------------------------------
Amanda Bronstad, writing for Law.com, reports that in what could be
the first settlement of its kind, Duke University has agreed to pay
$54.5 million to resolve a class action over an alleged illegal
employee-poaching agreement with the University of North Carolina
after the U.S. Department of Justice intervened in the antitrust
case.
The proposed settlement, filed on May 20, comes the same day that
the DOJ filed a motion to intervene in the class action in order to
enforce injunctive relief that would prohibit Duke and UNC from
signing "no-poach" employee agreements during the next five years.
The case is one of several in which the DOJ has filed statements of
interest seeking to clarify the standard of review that judges
should use in evaluating whether an agreement violates the federal
antitrust law, the Sherman Antitrust Act.
But it's also unprecedented because previous cases in which the DOJ
has sought to be involved remain pending, while a "no-poach"
settlement last year came in the DOJ's own case. The Duke
settlement is the first time the DOJ has been involved in
settlement of a private antitrust class action over allegedly
illegal poaching of employees.
"The settlement also sets forth an important and perhaps
unprecedented role for the United States Department of Justice to
monitor and enforce compliance with the settlement's injunctive
relief provisions," wrote lead plaintiffs counsel Dean Harvey, of
San Francisco's Lieff Cabraser Heimann & Bernstein, in a motion for
preliminary approval of the settlement filed on May 20. "The
settlement also provides an important role for the DOJ in enforcing
compliance with the settlement's injunctive relief provisions. This
is perhaps unprecedented; Dr. [Danielle] Seaman could not locate
any other example of a class action settlement that provides an
enforcement mechanism for the DOJ."
The settlement excludes attorney fees, but class counsel said they
planned to request about one-third of the settlement fund in fees
and $3.3 million in costs.
Assistant Attorney General Makan Delrahim, on May 20, praised
lawyers in the case for "working cooperatively with us throughout
the resolution of this matter, including for agreeing to permit the
United States to seek to intervene in this settlement."
"Permitting the United States to become part of this settlement
agreement in this private antitrust case, and thereby to obtain all
of the relief and protections it likely would have sought after a
lengthy investigation, demonstrates the benefits that can be
obtained efficiently for the American worker when public and
private enforcement work in tandem," he said in a statement.
Harvey declined to comment beyond the court filings.
Gregg Levy -- glevy@cov.com -- a partner at Covington & Burling in
Washington, D.C., and Brent Powell -- brent.powell@wbd-us.com -- of
Womble Bond Dickinson, who represented Duke in the case, did not
respond to a request for comment. But Michael Schoenfeld, vice
president for public affairs and government relations at Duke, said
in a statement that Duke denied the allegations and was settling to
"avoid the wasteful cost and inconvenience of prolonged
litigation."
"We will continue to vigorously compete for the best faculty who
will help fulfill these missions," he wrote in an emailed
statement. "The university is and has been committed to complying
with all relevant laws in recruiting the most talented physicians,
scientists and scholars. Our agreement with plaintiffs and the
Department of Justice to implement certain compliance measures
affirms that commitment."
The case is the latest in which the DOJ has sought to clarify its
views in an antitrust class action involving a "no-poach"
agreement. Last year, the DOJ reached an agreement with two
railroad equipment suppliers that had cut deals not to hire each
other's employees. The DOJ also has filed notes of statements of
interest in a growing number of "no-poach" class actions in the
past year, primarily against franchise retailers like fast-food
restaurants, citing similar investigations by state attorneys
general and 2016 guidance from the DOJ. That guidance said that the
Justice Department "intends to proceed criminally against naked
wage-fixing or no-poaching agreements," which it deemed "per se
illegal under the antitrust laws."
In the recent spate of "no-poach" class actions against franchise
establishments, the DOJ has sought to clarify that the agreements
are per se illegal "unless the facts show that they are reasonably
necessary to a separate legitimate business transaction or
collaboration between employers." Defendants have challenged that
standard of review, claiming that judges should analyze the cases
under the "rule of reason."
Danielle Seaman, an assistant professor of radiology at Duke
University School of Medicine, filed the class action in 2015. She
alleged that, when she contacted the UNC Chapel Hill School of
Medicine in 2015 to inquire about a position in its Radiology
Department, the person in charge wrote an email back to her saying,
"lateral moves of faculty between Duke and UNC are not permitted"
due to an agreement "between the deans of UNC and Duke a few years
back."
In 2018, U.S. District Judge Catherine Eagles of the Middle
District of North Carolina approved a settlement with the
University of North Carolina that had "broad injunctive relief,"
but no damages, due to immunity defenses available to a public
institution. She also certified a class of faculty members in the
claims remaining against Duke.
Ahead of a summary judgment hearing, the DOJ filed a March 7
statement of interest in the case, insisting that the standard of
review in no-poach agreements under Section 1 of the Sherman Act
was the per se rule, citing its case against the railroad equipment
suppliers.
The DOJ also said that Duke did not have a "state action" defense
to liability under the U.S. Supreme Court's 1943 decision in Parker
v. Brown.
"Duke's expansive arguments on the 'state action' doctrine and
indulgent treatment of no-poach agreements are not supported by
precedent and risk significant harm to competition, consumers, and
workers in North Carolina," wrote the DOJ's Nickolai Levin, an
attorney in the antitrust division in Washington, D.C.
The Duke case settled in April, prompting the DOJ to file a motion
to intervene on May 20 in order to obtain "the right to enforce any
injunctive relief."
"The United States has a significant interest in the proposed
injunctive relief because the United States enforces the federal
antitrust laws, and it has repeatedly enforced the antitrust laws
against anti-competitive no-poach agreements," wrote Barry Creech,
a trial attorney in the DOJ's Antitrust Division, in the motion to
intervene. "Allowing the United States to intervene in this matter
will further the United States' significant interest in preventing
anti-competitive no-poach agreements in the future."
Settlement documents estimate each class member's portion of the
cash fund to be approximately $10,000—among the largest per
capita recovery in an antitrust class action, according to court
documents.
As to the injunctive relief, the agreement also provides that Duke
would not enter into any more "no-poach" agreements and would
appoint an "antitrust compliance officer," train employees, report
potential settlement violations to the DOJ, and allow the DOJ to
inspect documents and interview employees for enforcement purposes.
Duke's president, vice president and general counsel also must
certify to the DOJ that they have complied with the settlement
every year for five years. [GN]
ENDO INTERNATIONAL: Certification of Class Sought in SEB Suit
-------------------------------------------------------------
The Plaintiff in the lawsuit captioned SEB INVESTMENT MANAGEMENT
AB, Individually and on Behalf of All Others Similarly Situated v.
ENDO INTERNATIONAL PLC, et al., Case No. 2:17-cv-03711-TJS (E.D.
Pa.), moves the Court for entry of an order:
(i) certifying the Class, as defined in the accompanying
memorandum of law;
(ii) appointing the Plaintiff as Class Representative; and
(iii) appointing Kessler Topaz Meltzer & Check, LLP as Class
Counsel.[CC]
The Plaintiff is represented by:
Sharan Nirmul, Esq.
Johnston de F. Whitman, Jr., Esq.
Michelle M. Newcomer, Esq.
Margaret E. Mazzeo, Esq.
Evan R. Hoey, Esq.
KESSLER TOPAZ MELTZER & CHECK, LLP
280 King of Prussia Road
Radnor, PA 19087
Telephone: (610) 667-7706
Facsimile: (610) 667-7056
E-mail: snirmul@ktmc.com
jwhitman@ktmc.com
mnewcomer@ktmc.com
mmazzeo@ktmc.com
ehoey@ktmc.com
EQUIFAX INFORMATION: McKinney Sues over Debt Collection Practices
-----------------------------------------------------------------
CHRISTINE MCKINNEY, individually and on behalf of all others
similarly situated, Plaintiff v. EQUIFAX INFORMATION SERVICES, LLC,
Defendant, Case No. 8:19-cv-01294-WFJ-AAS (M.D. Fla., May 30, 2019)
seeks to stop the Defendant's unfair and unconscionable means to
collect a debt. The case is assigned to Judge William F. Jung and
referred to Magistrate Judge Amanda Arnold Sansone.
Equifax Information Services LLC collects and reports consumer
information to financial institutions. The company was formerly
known as Equifax Credit Information Services Inc. and changed its
name to Equifax Information Services LLC in June 2004. The company
was incorporated in 1937 and is based in Atlanta, Georgia. Equifax
Information Services LLC operates as a subsidiary of Equifax Inc.
[BN]
The Plaintiff is represented by:
Philip Ross Goldberg, Esq.
Thomas Martin Bonan, Esq.
Bryan James Geiger, Esq.
SERAPH LEGAL PA
2002 E 5th Ave Ste 104
Tampa, FL 33605
Telephone: (813) 567-1230
Facsimile: (855) 500-0705
E-mail: PhilRGoldberg@gmail.com
tbonan@seraphlegal.com
bgeiger@seraphlegal.com
EVERI PAYMENTS: Removes Donahue Suit to N.D. Illinois
-----------------------------------------------------
The Defendants in the case, GERALDINE DONAHUE, individually and on
behalf of all others similarly situated, Plaintiff v. EVERI
PAYMENTS, INC.; and EVRI HOLDINGS, INC., Defendants, filed a notice
to remove the lawsuit from the Circuit Court of the State of
Illinois, County of Cook (Case No. 2018 CH 15419) to the U.S.
District Court for the Northern District of Illinois on May 31,
2019. The clerk of court for the Northern District of Illinois
assigned Case No. 1:19-cv-03665. The case is assigned to Honorable
Elaine E. Bucklo.
Everi Payments Inc. provides products and services related to
gaming establishments. The company was formerly known as Global
Cash Access, Inc. Everi Payments Inc. is based in Las Vegas,
Nevada. Everi Payments Inc. is a subsidiary of Everi Holdings Inc.
[BN]
The Plaintiff is represented by:
Keith James Keogh, Esq.
Michael S. Hilicki, Esq.
KEOGH LAW, LTD.
55 W. Monroe, Suite 3390
Chicago, IL 60603
Telephone: (312) 726-1092
E-mail: Keith@KeoghLaw.com
MHilicki@KeoghLaw.com
The Defendants are represented by:
David Luther Hartsell, Esq.
Amy L. Starinieri Gilbert, Esq.
MCGUIREWOODS LLP
77 West Wacker Drive, Suite 4100
Chicago, IL 60601
Telephone: (312) 849-8100
E-mail: dhartsell@mcguirewoods.com
astarinieri@mcguirewoods.com
FD HOLDINGS: Court Dismisses M. Butt's FCRA Suit
------------------------------------------------
The United States District Court for the Eastern District of
Michigan, Southern Division, issued an Opinion and Order granting
Defendant's Motion to Dismiss in the case captioned MUHAMMAD M.
BUTT, Plaintiff, v. FD HOLDINGS, LLC d/b/a FACTUAL DATA, KROLL
FACTUAL DATA, INC., and CBCINNOVIS, INC., Defendants. Case No.
18-cv-13641. (E.D. Mich.).
Before the Court is Defendant FD Holdings, LLC d/b/a Factual Data's
(FD Holdings) Motion to Dismiss Plaintiff Muhammad M. Butt's
Amended Complaint pursuant to Federal Rule of Civil Procedure
12(b)(6).
The Plaintiff initiated this lawsuit by filing a one-count Class
Action Complaint against Defendant Kroll Factual Data, Inc.,
d/b/a/Factual Data, alleging violations of 15 USC Section 1681e(b),
the Fair Credit Reporting Act (FCRA), for failure to maintain
reasonable procedures, individually and on behalf of a putative
class.
The Plaintiff alleges that FD Holdings violated 15 U.S.C. Section
1681e(b) of the FCRA by negligently or willfully providing Hall
with inaccurate information regarding his discharged debt to
Mayflower due to its failure to maintain reasonable procedures.
The Defendant argues that the Court should dismiss the Amended
Complaint because the credit report provided to Hall was accurate,
it followed reasonable procedures in producing the report, and the
Plaintiff did not suffer any injury.
FD Holdings argues that the Plaintiff falls short on three of the
four elements: (1) the credit report was accurate (2) it followed
reasonable procedures by relying on the LexisNexis report and (3)
the Plaintiff did not suffer a cognizable injury caused by the
Defendant, by paying to retain counsel to remedy the credit report.
Accuracy of the Reported Information
FD Holdings contends that the information about the Mayflower
judgment was accurate
The Plaintiff argues that information is technically inaccurate if
it misleading, but that is not the law of this circuit.
In the instant case, the creditor Mayflower's debt was not properly
listed by the debtor's attorney on the Schedule F, Matrix or the
Certificate of Notice.
Thus, the Plaintiff's argument that the Bankruptcy Court discharge
filing gave notice to FD Holdings that the Mayflower debt was
discharged and therefore the credit report was inaccurate, is
without merit. Plaintiff `s counsel failed in his obligation to
include Mayflower on the Bankruptcy Petition Schedule F as an
unsecured creditor on the list of creditors, and on the Creditor
Matrix that would receive notice regarding his bankruptcy matters,
and on the Bankruptcy Court Notice for Meeting of Creditors on
February 20, 2014.
By the close of the Bankruptcy case, it was not clear from the
record that the Mayflower debt was discharged. Indeed, just the
opposite that it was not discharged. Plaintiff cannot convert his
own negligence in the Bankruptcy proceedings into grounds for an
individual or class action claim against FD Holdings for not having
reasonable procedures.
Therefore, Plaintiff has not stated a claim for a violation of
Section 1681e(b).
Reasonable Procedures
The Plaintiff has not sufficiently pled that FD Holdings did not
follow reasonable procedures. The Plaintiff's Bankruptcy counsel's
errors, by presenting in multiple filings, incomplete and
inaccurate information in Plaintiff's Chapter 7 Bankruptcy
proceedings, caused Plaintiff's subsequent credit reporting problem
at issue in this Complaint filed by that former Bankruptcy counsel.
These errors in the Bankruptcy Court filings, totally undermine the
validity of this Fair Credit Reporting Act claim, pursuant to 15
U.S.C. Section 1681e(b). FD Holdings could not have verified or
updated the Mayflower judgment information by reviewing the
Bankruptcy filings because of counsel's glaring omission.
In addition, Plaintiff Butt's Bankruptcy Case Form B9A, Notice of
Chapter 7 Bankruptcy Case, Meeting of Creditors, also filed by
Plaintiff's counsel in the instant case, on the page titled, The
Certificate of Notice for Creditors, lists, inter alia, State of
Michigan, 35th District Court twice and Credit Acceptance but not
Mayflower Auto Transport. This again would confirm to any reader of
the Bankruptcy Court record that Plaintiff's Petition did not
list/regard Mayflower as a creditor that would/should receive
notice of that critical creditors meeting.
Thus, because of Plaintiff's counsel's negligence, there was no
listing in the Bankruptcy Court Matrix that the Mayflower debt
would have been cancelled that Mayflower had been discharged as a
creditor, prior to his mortgage application to Hall Financial.
So yes, there was a failure here to follow procedures, but it was a
failure by Plaintiff's bankruptcy counsel, the same counsel in the
instant case, who tried to shift his negligence to FD Holdings by
filing the instant Complaint. It was Plaintiff's counsel's failure
to follow the required procedures in the Bankruptcy Court that
caused his client's credit request in this case to be initially
denied.
Plaintiff's counsel's omission of Mayflower on the Schedule F,
Creditor Matrix and Certificate of Notice created a situation where
anyone searching the Bankruptcy Court Website would conclude that
the Mayflower debt had not been discharged.
Cognizable Injury and Article III Standing
Addressing the element of damages, the Plaintiff has not alleged a
cognizable injury caused by Defendant as required by the FCRA. Any
injury suffered by the Plaintiff resulted from his attorney's
negligence. The Plaintiff's allegation that, after Hall Financial
rejected his request for financing based upon the Mayflower debt,
the Plaintiff was forced to retain his Bankruptcy counsel to
clarify the information provided about the Mayflower judgment, was
caused by his counsel's error in the Bankruptcy pleadings. This
cannot satisfy an element of injury caused by FD Holdings. Here,
any pre-litigation costs were created by his Bankruptcy counsel
present counsel, to correct his own erroneous Bankruptcy Court
filings.
Thus, the Plaintiff has not alleged a concrete injury for purposes
of surviving a motion under Rule 12(b)(6). The Plaintiff has failed
to allege even a procedural violation of the FCRA by Defendant
because the information on the credit report was accurate;
Plaintiff's counsel did not list Mayflower as a creditor on the
Schedule F, Matrix, nor in the Discharge Order's Certificate of
Notice. Thus, Plaintiff lacks standing under Article III to bring
an action under the FCRA.
The Court grants Defendant FD Holdings, LLC, d/b/a Factual Data's
Motion to Dismiss the Plaintiff's Complaint with Prejudice.
A full-text copy of the District Court's June 6, 2019 Opinion and
Order is available at https://tinyurl.com/yybss7zc from
Leagle.com.
Muhammad M Butt, Plaintiff, represented by David A. Chami, PRICE
LAW GROUP, APC, 6345 Balboa Boulevard, Building 2, Suite 247,
Encino, CA 91316 & Nemer N. Hadous, HADOUS|CO. PLLC, 500 N Beech
Daly Rd, Dearborn Heights, MI 48127-3460
FD Holdings, LLC, Doing business as Factual Data, Defendant,
represented by Jason A. Spak -- jason.spak@fisherbroyles.com --
FisherBroyles, LLP.
FIAT CHRYSLER: Kelley et al. Suit Moved to N.D. California
----------------------------------------------------------
The class action lawsuit titled DAVID KELLEY, et al., individually
and on behalf of all others similarly situated, Plaintiffs v. FIAT
CHRYSLER AUTOMOBILES N.V.; FCA US LLC; SERGIO MARCHIONNE, FORMER
CEO OF FCA, FIAT and FIAT SUBSIDIARIES and CHAIRMAN OF FCA and FIAT
SUBSIDIARIES, DECEASED, AND HIS SUCCESSOR, MICHAEL MANLEY; VM
MOTORI S.p.A.; VM NORTH AMERICA, INC.; ROBERT BOSCH GmbH; BOSCH
GmbH; ROBERT BOSCH LLC; BOSCH LLC and VOLKMAR DENNER, Defendants,
Case No. 2:19-cv-11338, was removed from the Eastern District of
Michigan, to the U.S. District Court for the Northern District of
California on May 31, 2019. The District Court Clerk assigned Case
No. 3:19-cv-03019 to the proceeding. The Case is assigned to the
Hon. Edward M. Chen.
Fiat Chrysler Automobiles N.V., together with its subsidiaries,
designs, engineers, manufactures, distributes, and sells vehicles,
components, and production systems. The company was formerly known
as Fiat S.p.A. and changed its name to Fiat Chrysler Automobiles
N.V. in October 2014. Fiat Chrysler Automobiles N.V. was founded in
1899 and is based in London, the United Kingdom. [BN]
The Plaintiff is represented by:
Kenneth A. Stern, Esq.
STERN LAW, PLLC
41850 West 11 Mile Road, Suite 121
Novi, MI 48375
Telephone: (248) 347-7300
Facsimile: (248) 305-3250
E-mail: ken@sternlawonline.com
FIRST AMERICAN: Sindaghatta Files Suit in S.D. California
---------------------------------------------------------
A class action lawsuit has been filed against First American
Financial Corporation. The case is styled as Shreyas Sindaghatta,
Individually and on Behalf of All Others Similarly Situated,
Plaintiff v. First American Financial Corporation, First American
Title Insurance Company, Defendants, Case No. 3:19-cv-01083-BEN-RBB
(S.D. Cal., June 10, 2019).
The nature of suit is stated as Other Contract.
First American Financial Corporation is a United States financial
services company and is a provider of title insurance and
settlement services to the real estate and mortgage
industries.[BN]
The Plaintiff is represented by:
Amber Lee Eck, Esq.
Haeggquist & Eck, LLP
225 Broadway, Suite 2050
San Diego, CA 92101
Phone: (619) 342-8000
Fax: (619) 342-7878
Email: ambere@haelaw.com
FIRST FINANCIAL: Limitations Period Ruling in Delaney Suit Flipped
------------------------------------------------------------------
In the case, Otha Delaney, Petitioner, v. First Financial of
Charleston, Inc., Respondent, Opinion No. 27884 (S.C.), Judge Kaye
Gorenflo Hearn of the Supreme Court of South Carolina reversed the
circuit court's conclusion that the limitations period began upon
receipt of the allegedly deficient notice, which the court of
appeals affirmed in a split decision.
The case concerns when a claim for deficient notice of disposition
of collateral under Article 9 of the Uniform Commercial Code
accrues for statute of limitation purposes.
In October of 2007, Petitioner Delaney bought a 2003 Chevrolet
pick-up truck from Coliseum Motors pursuant to a retail installment
sales contract. The dealership subsequently assigned the contract
to Respondent First Financial of Charleston, Inc., which acquired a
security interest under the UCC. After Delaney failed to make
payments, First Financial lawfully repossessed the truck, and on
May 2, 2008, it sent Delaney a letter entitled, "Notice of Private
Sale of Collateral." Over seven months later, on Dec. 15, 2008,
First Financial sold the truck.
On Oct. 3, 2011, more than three years after sending notice but
less than three years from the sale of the truck, Delaney filed
suit against First Financial, seeking to represent a class of
individuals who had received notice that allegedly failed to comply
with certain requirements in Article 9. Accordingly, Delaney
asserted he was entitled to the statutory penalty under section
36-9-625(c)(2) of the South Carolina Code (2003). First Financial
moved to dismiss pursuant to Rule 12(b)(6), SCRCP, asserting the
statute of limitations had expired. Before the trial court, the
parties disputed whether the appropriate limitations period was
one, three, or six years.
After a hearing, the trial court found: (1) the remedy Delaney
sought pursuant to section 36-9-625(c)(2) was a statutory penalty;
(2) the six-year Article 2 limitations period did not apply because
Delaney failed to plead breach of contract, the claim solely
concerned deficient notice under Article 9, and even if Article 2
applied, the more specific limitations period on penalties
governed; and finally, (3) under either limitation period,
Delaney's claim was time-barred as his action accrued upon receipt
of the allegedly deficient notice.
The court of appeals affirmed in a split decision, holding that
because the claim concerned deficient notice, it accrued upon
receipt of the notice. Concluding Delaney's claim was untimely
under either the one or three-year limitations period for an action
upon a statutory penalty, the court affirmed. Judge Thomas
concurred in the majority's decision that Article 2's six-year
limitations period did not apply, but dissented on the issue as to
when Delaney's cause of action accrued, finding that it accrued
upon disposition of the collateral. Delaney sought a writ of
certiorari, which the Court granted.
Delaney asserts the court of appeals erred in holding his claim
accrued upon receipt of the notice instead of when First Financial
disposed of the collateral, contending section 36-9-611(b) only
requires a secured party "that disposes of collateral" to provide
notice. Because in Delaney's view the notice is not final until
disposition, the statute of limitations does not begin to run until
that point in time. Conversely, First Financial argues the
limitations period began when the noncompliant notice was sent,
without regard to the date of disposition.
Judge Hearn agrees with Delaney. Delaney's claim did not accrue
until First Financial disposed of the collateral. Having concluded
the limitations period did not begin until Dec. 15, 2008, she nexts
turn to which statute of limitations governs.
At the oral argument before the Court, the counsel for First
Financial conceded the three-year limitations period applied, and
the Judge agrees. She finds that Section 15-3-540(2) sets forth a
three-year limitations period for an action upon a statute for a
penalty or forfeiture when the action is given to the party
aggrieved or to such party and the State, except when the statute
imposing it prescribes a different limitation. Accordingly, because
Delaney is an aggrieved party, the three-year limitations period
under section 15-3-540(2) applies.
Delaney's claim for deficient notice of disposition of collateral
did not accrue until First Financial disposed of the collateral.
Accordingly, because Delaney filed the action within three years
from that date, Judge Hearn reversed and remanded for further
proceedings.
A full-text copy of the Court's May 8, 2019 Opinion is available at
https://is.gd/3ldz4v from Leagle.com.
Philip L. Fairbanks, of The Law Offices of Philip Fairbanks, PC,
Kathy D. Lindsay, of Kathy D. Lindsay, PA, and Frederick M. Corley,
all of Beaufort, for Petitioner.
Stephen Lynwood Brown -- sbrown@ycrlaw.com -- Russell Grainger
Hines -- rhines@ycrlaw.com -- and Perry McPherson Buckner IV --
pbuckner@ycrlaw.com -- all of Young Clement Rivers, LLP, of
Charleston, for Respondent.
FIRST STUDENT: Terms of Rosario Suit Deal Found Fair & Reasonable
-----------------------------------------------------------------
In the case, MARIBEL ROSARIO, et al., Plaintiffs, v. FIRST STUDENT
MANAGEMENT LLC, and FIRST STUDENT INC., Defendants, Case No.
5:15-cv-06478 (E.D. Pa.), Judge Joseph F. Leeson, Jr. of the U.S.
District Court for the Eastern District of Pennsylvania found that
the terms of the settlement agreement are a fair and reasonable
resolution of a bona fide dispute under the Fair Labor Standards
Act ("FLSA").
The Parties submitted Amended Joint Proposed Findings of Fact and
Conclusions of Law in support of their motion for approval of the
parties' settlement pursuant to the Court's Feb. 13, 2019 Order.
On Dec. 7, 2015, the Plaintiffs filed a four-count Complaint in the
U.S. District Court for the Eastern District of Pennsylvania
alleging the following violations on behalf of 76 named Plaintiffs:
FLSA - Straight Time Claim (Count I); FLSA - Overtime Claims (Count
II); Wage Payment and Collection Law ("WPCL") - Straight Time Claim
(Count III); and WPCL - Overtime Claims (Count IV).
All Plaintiffs are current and former bus drivers and
monitors/aides who worked at bus yards across Pennsylvania.
The Plaintiffs filed their claims as a collective action pursuant
to Section 216(b) of the FLSA and as a class action pursuant to
Rule 23 of the Federal Rules of Civil Procedure.
The Plaintiffs allege that First Student failed to pay drivers and
aides for allegedly performing compensable activities in between
the time they arrived at their First Student location and the time
that they boarded their respective buses to log-in to the Zonar
system -- a computerized system used to conduct their pre-trip
inspections and to track their movements via a Global Positioning
Satellite ("GPS") network.
Likewise, they allege that upon returning from their routes, they
were not properly compensated for time spent performing their
post-trip inspections and for alleged activities performed from the
time they logged off of the Zonar system to the time that they left
the facility.
First Student provides its drivers and monitors with a set schedule
and requires them to report any work performed outside of the
scheduled time. It contends that the fixed schedule, along with
time reported on the exception forms/logs, accurately reflects all
time worked for drivers and aides. It contends that its use of set
schedules and exception reporting is a lawful policy under the
FLSA.
The Parties engaged in an in-person mediation with Judge Joel B.
Rosen, U.S.M.J. (Ret.) on Oct. 4, 2018. They reached a settlement.
The Parties have prepared a Settlement Agreement and Release that
memorializes the terms of their settlement, which is contingent
upon approval of the Court.
First Student agrees to pay the Plaintiffs, the total agreed-upon
amount of $249,955 as a full and final settlement of the Action,
which includes attorney fees, costs, and expenses, in accordance
with the payment schedule set forth in Exhibit A to the parties'
Amended Joint Proposed Findings of Fact and Conclusions of Law.
The total allocation of the settlement amount for distribution to
Plaintiffs is $108,452.56.
In order to receive their allocated settlement amount, each
Plaintiff must execute the Parties' Settlement Agreement and
Release, provide a Form W-4 and a Form W-9. For any Plaintiff who
does not execute the Parties' Settlement Agreement and Release, the
Plaintiffs' counsel will dismiss their claims without prejudice and
the $249,955 settlement amount will be reduced by that the
Plaintiff's allocated portions of the settlement amount set forth
in Exhibit A, including their wages, liquidated damages and
allocated attorneys' fees, costs and expenses. All Plaintiffs who
execute the Settlement Agreement and Release will receive a
prorated share of the $108,452.56, i.e. $547.74 per claimant. The
total allocation of the settlement amount for attorney fees, costs,
and expenses is $141,502.44.
Judge Leeson finds that (i) the settlement is fair and reasonable
to the Plaintiffs; (ii) the settlement agreement does not frustrate
the implementation of the FLSA as First Student continues to deny
liability, and thus, resolution of the case would require a trial
on the merits; and (iii) the Plaintiffs' Counsels' fees and costs
are fair and reasonable.
For these reasons, the Judge concludes that the terms of the
settlement agreement are a fair and reasonable resolution of a bona
fide dispute under the FLSA. A separate order follows.
A full-text copy of the Court's May 10, 2019 Opinion is available
at https://is.gd/noXmbQ from Leagle.com.
MARIBEL ROSARIO, LUZ TINTINAGOZ, JUDY REHRIG, WALID NADRAMS, BARRY
DEMKO, MARIA LOPEZ, JESICA MARIN, DELINDA SANTIAGO, CARLOS CORDERO,
JUANA CORDERO, JOSEPH BARNER, ISAAC MALDONADO, TANIKA JOHNSON,
JUANA ESPINAL, POLLY BIEBER, DOROTHEA WOLBACH, ALVIN OLTEVO,
MILEDIS ROSARIO DECESTINO, BRENDA VERA, MARIA SANCHEZ, MARIA SOLER,
GRISETTE QUIONES, ANA PAREZ, VIRGINIA MALDONADO, ESTELLA FAUST,
BARBARA REPASCH, RODE ESPINAL, CARLENE HAAS, NICOLE FENSTARMAKER,
ROSA FIGUEROA, DONNA BETZ, BELINDA DIAZ, MIKE CECH, JACQUELINE
CANALES, JEFFREY DELBREY, LLANELY HERNANDEZ, BATANIA PINENTEL,
ARISELLE PINEDA, CANDY ZAVALA, DEBBIE HAUSRATH, TELMA SORTO, MARIA
THEU, YUCLERCA LAUSELL, GIANA LOPEZ, MAYRA MUNOZ, TINA REPPERTQ,
MICHAEL DEHAVEN, SHERRIE ANABUI, ERIC MONTOYA, MELISSA FERMIN, ANA
SANCHEZ, BRENDALIZ APONTE, URBANA LALAMN, LUCIE STROHL, LIMARY
ORTIZ, WAYNE CHENEVERT, JESSICA MARINEZ, DANA CAPPEL, DARLENE
PERRY, DIANE KELCHNER, JUSTINA KEELAN, NICOLE TUCKER, GLORIA
KNAPPENBERGER, JENNIFER WILSON, CAROLYN KILIAN, MAE KLINE, KLYDE
TWISS, VERONICA MARGIOTTO, MARGARET TICHY, KATHOLINE MCELDRIDGE,
JESUS ELIAS, JOFFRE OJEDA, FOTEN AWID, KENNETH SWAYER, WANDA MUNOZ
& SANDRA GONZALEZ, INDIVIDUALLY AND ON BEHALF OF SIMILARLY SITUATE
EMPLOYEES, Plaintiffs, represented by GERARD J. GEIGER, NEWMAN
WILLIAMS MISHKIN CORVELEYN WOLFE & FARERI, PATRICK T. CRONIN --
ptcesq@gmail.com -- CRONIN & BERKOWITZ & STEVEN A. BERKOWITZ --
sberkowitz@contractorlawoffices.com -- STEVEN A. BERKOWITZ & ASSOC
PC.
FIRST STUDENT MANAGEMENT LLC & FIRST STUDENT INC., Defendants,
represented by WILLIAM J. SIMMONS -- wsimmons@littler.com --
LITTLER MENDELSON, P.C., ALEXA JOY LABORDA NELSON --
alabordanelson@littler.com -- LITTLER MENDELSON PC & NILOY RAY --
nray@littler.com -- LITTLER MENDELSON PC.
FISHER-PRICE INC: Flores Sues over Defective Infant Sleepers
------------------------------------------------------------
KAREN FLORES, individually and on behalf of all others similarly
situated, Plaintiff v. FISHER-PRICE, INC., Defendant, Case No.
8:19-cv-01073-JVS-JDE (C.D. Cal., May 31, 2019) is an action
against the Defendant for selling and manufacturing a defective
Rock 'N Play Sleeper line of products, including but not limited to
the Rock 'N Play Sleeper, the Auto Rock 'N Play Sleeper, the Deluxe
Rock 'N Play Sleeper, and several other variants.
The Plaintiff alleges that the Defendant's products are defective
because, even when used according to the Defendant's instructions,
the products present a serious risk to the health and welfare of
infants. The defining feature of the products -- locking the infant
into an inclined sleeping position -- is in fact a dangerous
defect. The products can at the very least, contribute to
positional plagiocephaly -- a condition in which an infant's skull
is misshapen or flattened by pressure, or at the unimaginable
worst, cause death by suffocation. The defect renders the products
unsuitable for their express principle purpose -- holding sleeping
infants for hours at a time.
Fisher-Price, Inc. manufactures and markets toys for babies,
toddlers, preschoolers, and kids. The company was founded in 1930
and is based in East Aurora, New York. As of November 1993,
Fisher-Price, Inc. operates as a subsidiary of Mattel, Inc. [BN]
The Plaintiff is represented by:
Marc G. Reich, Esq.
Adam T. Hoover, Esq.
REICH RADCLIFFE & HOOVER LLP
4675 MacArthur Court, Suite 550
Newport Beach, CA 92660
Telephone: (949) 975-0512
Facsimile: (949) 208-2839
E-mail: mgr@reichradcliffe.com
adhoover@reichradcliffe.com
FLEETCOR TECHNOLOGIES: Still Defends Georgia Class Action
---------------------------------------------------------
FleetCor Technologies, Inc. said in its Form 10-Q Report filed with
the Securities and Exchange Commission on May 10, 2019, for the
quarterly period ended March 31, 2019, that the company continues
to defend a class action suit in the United States District Court
for the Northern District of Georgia.
On June 14, 2017, a shareholder filed a class action complaint in
the United States District Court for the Northern District of
Georgia against the Company and certain of its officers and
directors on behalf of all persons who purchased or otherwise
acquired the Company's stock between February 5, 2016 and May 2,
2017.
On October 13, 2017, the shareholder filed an amended complaint
asserting claims on behalf of a putative class of all persons who
purchased or otherwise acquired the Company's common stock between
February 4, 2016 and May 3, 2017.
The complaint alleges that the defendants made false or misleading
statements regarding fee charges and the reasons for its earnings
and growth in certain press releases and other public statements in
violation of the federal securities laws.
Plaintiff seeks class certification, unspecified monetary damages,
costs, and attorneys' fees.
The Company disputes the allegations in the complaint and intends
to vigorously defend against the claims.
No further updates were provided in the Company's SEC report.
FleetCor Technologies, Inc. provides commercial payment solutions
in North America, Latin America, Europe, and Australasia. The
company offers fuel payment solutions to businesses and government
entities that operate vehicle fleets, as well as to oil and leasing
companies, and fuel marketers. FleetCor Technologies, Inc. was
founded in 1986 and is headquartered in Peachtree Corners,
Georgia.
FOODLINER INC: $1.2MM Settlement in Austin Suit Has Final Approval
------------------------------------------------------------------
In the case, RONDA AUSTIN, et al., Plaintiffs, v. FOODLINER, INC.,
Defendant, Case No. 16-cv-07185-HSG (N.D. Cal.), Judge Haywood S.
Gilliam, Jr. of the U.S. District Court for the Northern District
of California (i) granted Plaintiffs Austin, Christopher Corduck,
Ernest Dial, Billy Wayne Gibson, and Bobby G. Smith's unopposed
motion for final approval of class action settlement; and (2)
granted in part and denied in part their unopposed motion for
attorneys' fees, costs, and class representative incentive awards.
The Plaintiffs were formerly employed as truck drivers by the
Defendant. They brought suit on behalf of a class of all
individuals whom Foodliner employed as truck drivers in California
at any time during the Class Period, which commenced on Nov. 3,
2012.
The Plaintiffs alleged that their job was to haul materials from
one location to another using Foodliner's trucks. Foodliner
controlled all the logistical details, such as drivers' schedules,
work locations, and the specific duties to be performed. It paid
drivers on a per-trip basis.
The Plaintiffs alleged that this system meant that they were not
paid for all hours worked, in particular, for their rest periods;
for non-productive time, including but not limited to, for dead
mileage, dead running or dead-heading (dead-heading) (when the
truck driver operates without carrying any cargo or load); for work
performed pre- and post-trip; for the time spent fueling their
vehicles; for the time spent completing necessary paperwork; for
standby time; and for time spent attending required safety meetings
and trainings. And they were "not paid separately for their missed
meal and rest periods. Further, Foodliner allegedly failed to
reimburse the putative class members for certain eligible costs
incurred while on the job,and to provide accurate wage statements.
The Plaintiffs originally filed suit in state court on Nov. 3,
2016. Foodliner removed the case on December 15. On Oct. 20,
2017, the Plaintiffs filed the FAC, which Foodliner answered on
Nov. 13, 2017.
On April 19, 2018, the parties notified the Court that they had
reached a settlement agreement, after which the Plaintiffs filed an
unopposed motion for preliminary approval of the class settlement.
The Court granted preliminary approval on August 17.
The Plaintiffs filed their motion for attorneys' fees, costs, and
class representative incentive awards on November 6, and their
motion for final approval on December 20. The Court held a hearing
on the motions on May 2, 2019.
After conducting discovery, the parties engaged in a mediation on
Aug. 16, 2017. Although the case did not settle at the August
session, the mediator made a proposal the following April. The
parties accepted a modified version of the mediator's proposal and
reached the Settlement Agreement.
The class is defined as all individuals employed by Foodliner as
truck drivers in California at any time from Nov. 3, 2012 to Aug.
17, 2018. There is also a Private Attorneys General Act ("PAGA")
subclass, consisting of the class members employed by Foodliner
between Oct. 31, 2015 to Aug. 17, 2018.
Foodliner agreed to pay a gross settlement amount of $1.2 million,
which is inclusive of all payments to the Class Members, the Class
Counsel Fees and Costs Payment, the Class Representative Service
Payment, the Settlement Administration Fees, withholdings for wage
payments made to Class Members under the Settlement, and payment to
the California Labor & Workforce Development Agency for its share
of PAGA penalties. The amount does not include employer payroll
taxes.
The proceeds will be distributed as follows: Each Participating
Class Member will receive a proportionate share that is equal to
(i) the number of workweeks he or she worked during the time period
from Nov. 3, 2012, through the date of Preliminary Approval of the
Settlement, divided by (ii) the total number of workweeks worked by
all Participating Class Members during the time period from Nov. 3,
2012, through the date of Preliminary Approval of the Settlement.
Further, one-quarter of the $81,405 allocated to PAGA penalties
(i.e., $20,351.25) will be distributed to the PAGA subclass as
follows: Each Participating Class Member who is a member of the
PAGA Subclass will receive a proportionate share of money allocated
to that subclass that is equal to (i) the number of workweeks he or
she worked during the time period from Oct. 31, 2015, through the
date of Preliminary Approval of the Settlement, divided by (ii) the
total number of workweeks worked by all Participating Class Members
who are members of the PAGA Subclass during the time period from
Oct. 31, 2015, through the date of Preliminary Approval of the
Settlement. No portion of the settlement fund will revert to
Foodliner and any unclaimed portion of the fund will ultimately be
paid to Legal Aid at Work.
The settlement administrator estimates that that the net settlement
fund will total $751,873.63. The 217 class members will receive an
average payment of $3,558.64; the largest individual payment is
estimated to be $15,653.44 and the smallest individual payment is
estimated to be $7.09.
The settlement administrator mailed the class notice to 216 class
members. Of the 216 class notices sent, two were deemed
indeliverable. The settlement administrator also received two
requests from class members to be added to the class list.
Plaintiff Austin requested a $10,000 incentive award. Plaintiffs
Corduck, Dial, Gibson, and Smith requested incentive awards of
$7,500 each. The Defendant agreed not to oppose any of these
applications.
The Plaintiffs agreed to seek attorney's fees amounting to 33% or
less of the gross settlement amount, or $399,960. The counsel
filed an application for $300,000 in attorneys' fees, which is 25%
of the gross settlement amount. The class counsel also seeks costs
and expenses of $22,221.37.
After considering and weighing all of the above factors, Judge
Gilliam finds that the Settlement Agreement is fair, reasonable,
and adequate, and that the settlement class members received
adequate notice. Accordingly, he will grant the Plaintiffs' motion
for final approval of class action settlement.
The Judge also finds that the fee request reasonable under both the
percentage of fund and lodestar methods. Therefore, he will
garnted the motion for attorneys' fees and awards $300,000 in fees
to the class counsel.
The ounsel has provided an itemized list of expenses, including
filing fees, travel expenses, mediation expenses, postage, and
printing. The Judge has reviewed the enumerated costs and find
them to be reasonably incurred. Accordingly, he will grant the
motion for costs in the amount of $22,221.37.
Finally, the Judge finds that an incentive award of $10,000 for
Austin and $5,000 each for the other named Plaintiffs is
reasonable. Further, the class counsel has justified the larger
award for Austin. However, the counsel has not provided any
particular reason why the other named Plaintiffs are deserving of
an award greater than the presumptive one. Therefore, the Judge
will award $10,000 to Austin and $5,000 to the other named
Plaintiffs.
For the foregoing reasons, Judge Gilliam granted the Plaintiffs'
motion for final approval of the $1.2 million class action
settlement. He granted in part and denied in part the Plaintiffs'
motion for attorneys' fees, costs, and class representative
incentive awards. He awarded the class counsel $300,000 in
attorneys' fees and $22,221.37 in costs. In addition, the Judge
approved a payment of $4,500 to the settlement administrator. He
awarded incentive payments of $10,000 to Plaintiff Austin and
$5,000 each to Plaintiffs Corduck, Dial, Gibson, and Smith.
The parties and settlement administrator are directed to implement
te final order and the Settlement Agreement in accordance with the
terms of the Settlement Agreement. The parties are directed to
submit a joint proposed judgment by May 31, 2019.
A full-text copy of the Court's May 10, 2019 Order is available at
https://is.gd/Q4XDxt from Leagle.com.
Ronda Austin, Christopher Corduck, Ernest Dial, Billy Wayne Gibson
& Bobby G. Smith, on behalf of themselves and all others similarly
situated, Plaintiffs, represented by Hunter Pyle --
hpyle@ssrplaw.com -- Hunter Pyle Law & Chad A. Saunders --
csaunders@ssrplaw.com -- Sundeen Salinas & Pyle.
Foodliner, Inc., Defendant, represented by Mollie Michelle Burks
--
mburks@grsm.com -- Gordon & Rees Scully Mansukhani, LLP, John Paul
Briscoe -- jbriscoe@mayallaw.com -- Burton Employment law &
Nicholas A. Deming -- ndeming@grsm.com -- Gordon & Rees.
GENERAL MOTORS: Hutchinson Sues over Defective Powertrain
---------------------------------------------------------
KATRINA HUTCHINSON, on behalf of herself and all others similarly
situated, the Plaintiff, vs. GENERAL MOTORS LLC, the Defendant,
Case No. 8:19-cv-01551 (D. Md., May 24, 2019), asks the Court to
compel GM to adequately disclose and remediate the engine power
reduced defect, and to enjoin GM from incorporating the defective
powertrain into its vehicles in the future in accordance with the
Magnuson-Moss Warranty Act and the Maryland Consumer Protection
Act.
The action arises from the sale or lease of thousands of 2016 -
2018 Chevy Malibu vehicles throughout Maryland and the United
States manufactured by Defendant GM that are equipped with a
defective electronic throttle control and/or accelerator pedal
position sensor that cause the vehicles to abruptly lose power,
often at interstate highway speeds. The defect manifests with a
significant and abrupt reduction of power accompanied by an "Engine
Power is Reduced" warning on the dashboard.
The defect affects model year 2016 through 2018 Chevrolet Malibu
vehicles sold or leased to consumers in the United States,
including Plaintiff's vehicle. All Class Vehicles share the same
dangerously defective condition that GM failed to disclose to
Plaintiff, consumers, and each Class Member.
According to the complait, in the Class Vehicles, acceleration in
the powertrain is controlled by electronic throttle control which
includes an accelerator pedal position sensor. Unlike traditional
throttle control systems, which rely on mechanical linkages, the
Class Vehicles' use electronic sensors and electromechanical
actuators and human-machine interfaces such as pedal feel emulators
to control vehicle functions.
Electronic throttle control ("ETC") is an automobile technology
that controls the powertrain of a vehicle. ETC electronically
"connects" the accelerator pedal to the throttle, replacing a
mechanical linkage such as a throttle cable running to a
carburetor.
The Plaintiff and Class Members purchased GM vehicles fitted with
defective electronic throttle control and/or accelerator pedal
position sensors that cause them to abruptly lose power at high
speeds. This is a major safety concern because drivers have
reported that the defect can cause a loss of control or a rear end
accident from vehicles following behind them.[BN]
Attorneys for the Plaintiff and Putative Class:
Nicholas A. Migliaccio, Esq.
Jason S. Rathod, Esq.
Esfand Y. Nafisi, Esq.
MIGLIACCIO & RATHOD LLP
412 H Street N.E., Ste. 302
Washington, DC 20002
Telephone: (202) 470-3520
E-mail: nmigliaccio@classlawdc.com
jrathod@classlawdc.com
- and -
Daniel Levin, Esq.
Nicholas Elia, Esq.
LEVIN SEDRAN & BERMAN
510 Walnut Street, Suite 500
Philadelphia, PA 19106
Telephone: (215) 592-1500
E-mail: DLevin@lfsblaw.com
Nelia@lfsblaw.com
GILEAD SCIENCES: Accused of HIV Meds Price-Rigging
--------------------------------------------------
Michael Snipe, John Carroll, Josh Mcdonald, John Doe, Gabriel
Molina and Troy Vazquez-Cain, on behalf of themselves and all
others similarly situated, Plaintiffs, v. Gilead Sciences, Inc.,
Gilead Holdings, LLC, Gilead Sciences, LLC, Gilead Sciences Ireland
UC, Bristol-Myers Squibb Company, E. R. Squibb & Sons, LLC, Japan
Tobacco, Inc., Japan Tobacco International USA, Inc., Akros Pharma
Inc., Janssen R&D Ireland and Johnson & Johnson, Inc., Defendants,
Case No. 19-cv-02734 (N.D. Cal., May 20, 2019), seeks permanent
injunctive relief pursuant to the Clayton and Sherman Act.
Defendants are international pharmaceutical companies whom
Plaintiffs claim develop and market HIV suppressing drugs. They
allegedly acquired and maintained a monopoly in the market for
drugs that comprise the modern HIV treatment regimen where Gilead
dominates the market for such and entered into a series of
collusive and illegal horizontal agreements that ensured that each
co-conspirator would not compete against Gilead's HIV medications
and would effectively block other companies from competing against
them even after their patents expired.
Plaintiffs are users/prescription issuers who claims that they have
purchased these HIV medications at supra-competitive prices. [BN]
Plaintiff is represented by:
Lionel Z. Glancy, Esq.
Kevin F. Ruf, Esq.
GLANCY PRONGAY & MURRAY LLP
1925 Century Park East, Suite 2100
Los Angeles, CA 90067
Telephone: (310) 201-9150
Facsimile: (310) 201-9160
Email: info@glancylaw.com
- and -
Linda P. Nussbaum, Esq.
Bart D. Cohen, Esq.
NUSSBAUM LAW GROUP, P.C.
1211 Avenue of the Americas, 40th Floor
New York, NY 10036-8718
Tel: (917) 438-9189
Email: lnussbaum@nussbaumpc.com
bcohen@nussbaumpc.com
- and -
Michael Gallagher, Jr.
MILBERG TADLER PHILLIPS GROSSMAN, LLP
One Pennsylvania Plaza, 19th Floor
New York, NY 10119
Telephone: (212) 594-5300
Email: mgallagher@milberg.com
GIRARD SYSTEMS: Faces Rogers Suit in Orange California
------------------------------------------------------
A class action lawsuit has been filed against Girard Systems. The
case is captioned as ALYSON ROGERS, individually and on behalf of
all others similarly situated, Plaintiff v. GIRARD SYSTEMS; and
BIEN NGUYEN Defendants, Case No. 30-2019-01073390 (Cal. Super.,
Orange Cty., May 31, 2019).
Girard Systems manufactures protective packaging materials. The
Company offers home, commercial, specialty, and RV awning. Girard
Systems serves customers in the State of California. [BN]
The Plaintiff is represented by the Law Offices of Todd M.
Friedman, P.C.
GOOGLE INC: Court Considers Cy Pres Settlement Challenge
--------------------------------------------------------
Jeff Reynolds, writing for Heartland, reports that a challenge to
class action lawsuit settlements that benefit lawyers and leave the
class members with trifling awards or nothing at all has been sent
to a district court by the U.S. Supreme Court.
The Ninth Circuit Court of Appeals remanded the case, Frank v.
Gaos, to the Northern District of California to address plaintiffs'
standing to sue in federal court on May 13. The U.S. Supreme Court
sent the case back to the Ninth Circuit to consider the standing
issue in a March 20 order.
"We look forward to the standing issue being resolved so that the
Court may reach the merits of our appeal," said Melissa Holyoak, a
petitioner in the case, and president and general counsel of the
Hamilton Lincoln Law Institute, a nonprofit public interest law
firm.
Injured Parties Got Nothing
The original class action suit, Gaos v. Google, sought a settlement
of trillions of dollars for 100 million class members for alleged
privacy violations committed by Google against users of its search
engine.
The plaintiffs' lawyers negotiated a settlement with Google in
which class members received nothing, and lawyers and third parties
received $8.5 million.
Frank v. Gaos, a case initiated by Theodore H. Frank, formerly
director of litigation at the Competitive Enterprise Institute
(CEI), challenged the settlement of the class action suit and the
underlying legal doctrine of cy pres, a term shortened from the
French phrase meaning "as near as possible."
When it would be difficult to identify or compensate individual
members of the class harmed, cy pres lets attorneys substitute
other recipients, such as charities, to receive the settlement
funds instead of the class members.
Lawyers Control 'Slush Fund'
Google made some donations and paid the lawyers representing the
class of search engine users claiming harm, explained Frank, who
argued his own case before the Supreme Court on October 31 2018, in
a CEI news release.
"Plaintiffs' attorneys negotiated a settlement that paid themselves
millions of dollars and gave themselves control of a slush fund to
donate to their pet causes, while leaving class members—their
clients—with nothing," stated Frank.
The Gaos settlement is a textbook example of cy pres abuse, stated
CEI.
"The cy pres recipients included class counsel's alma maters and
several organizations that Google already supports through
donations," wrote CEI. "This means Google was able to get rid of a
lawsuit brought by more than 100 million people by making no
material changes to its practices and simply donating to some of
the same groups it supports anyway. This unfair settlement typifies
cy pres abuse."
'Violations Are Sufficiently Concrete'
After the issue of Frank's and the other plaintiffs' standing to
sue in federal court is resolved, Frank v. Gaos could be judged on
its merits, says Holyoak.
"The standing question relates to whether plaintiffs have standing
to bring their claims," said Holyoak. "Specifically, the issue is
whether plaintiffs' allegations of Electronic Communications
Privacy Act violations are sufficiently concrete, meaning they are
more than just bare procedural violations.
"We are confident that the district court will find standing here
because plaintiffs' alleged injuries -- that Google disseminated
their private internet search queries -- is similar to privacy
injuries that the law has recognized for centuries," said Holyoak.
[GN]
GOOGLE LLC: Communication with DBM Advertisers Not Misleading
-------------------------------------------------------------
In the case, ADTRADER, INC., et al., Plaintiffs, v. GOOGLE LLC,
Defendant, Case No. 17-cv-07082-BLF (VKD) (N.D. Cal.), Magistrate
Judge Virginia K. DeMarchi of the U.S. District Court for the
Northern District of California, San Jose Division, concluded that
Google's proposed oral communications with DBM advertisers are
unlikely to mislead or coerce putative class members.
Defendant Google and the Plaintiffs ("AdTrader") dispute whether
and in what form Google may communicate with advertisers using
Google's DoubleClick Bid Manager ("DBM") who are putative class
members in the action. The Court heard oral argument on the matter
on May 7, 2019.
Google proposes to send an email message to certain DBM advertisers
advising that it will issue them invalid activity credits or cash
refunds for previously-uncredited invalid advertising activity
detected between 2012 and late 2017. It also proposes to
communicate with some of its largest DBM advertisers by telephone,
but plans to limit those communications to the matters covered in
the proposed email message. Many of the DBM advertisers are
putative class members in the action.
AdTrader objects to Google's proposed communications in their
entirety, arguing that the communications are misleading,
particularly with respect to Google's reasons for providing the
credits and refunds. In the alternative it says Google's proposed
email message should be revised to include information alerting the
DBM advertisers to the nature and existence of the action and
clarifying that Google is not seeking a waiver or release of any
claims the advertisers may have in the action.
AdTrader opposes any unsupervised oral communications between
Google and the DBM advertisers. It has two principal objections to
Google's proposed email message. First, AdTrader contends that the
invalid activity credits and refunds Google intends to provide to
DBM advertisers will "substantially eradicate" those advertisers'
claims against Google in the case, and that by accepting such
credits and refunds the advertisers may unwittingly compromise
other benefits they might enjoy from continued participation in a
class action. Second, AdTrader argues that the proposed email
message says that Google is providing credits and refunds for
previously-uncredited invalid activity because of its commitment to
the highest standards, rather than because it has been forced to do
so through the Plaintiffs' efforts in the litigation, and that
Google's favorable marketing spin makes the proposed email message
misleading.
Magistrate Judge DeMarchi finds that AdTrader's first objection is
less an objection to the proposed communications than an objection
to the fact of Google providing credits and refunds for much or all
of the invalid advertising activity at issue in the case. She
concludes that a communication from Google that advises DBM
advertisers of the credits or refunds they will receive and the
procedures for receiving those credits or refunds is not coercive
or misleading in itself simply because the communication does not
also disclose that such credits or refunds may provide
substantially all of the recovery to which the putative class may
be entitled in the action.
With respect to AdTrader's second objection, the parties' dispute
reflects a disagreement about the "real" reason Google has decided
to provide credits and refunds at this time. The Magistrate finds
that AdTrader does not argue persuasively that Google's messaging
will cause putative class members to accept credits or refunds when
they otherwise would have rejected them, or that the messaging will
cause putative class members to opt-out of a class if one is
certified. Google's messaging to the DBM advertisers at most will
enable Google to give its credit/refund program a rosier glow than
it may deserve. It messaging will not, however, change the facts
with regard to whether AdTrader's efforts catalyzed Google's
decision to issue credits and refunds at this time, or impact the
ultimate determination of whether the putative class members are
entitled to additional relief, including an award of attorneys'
fees to class counsel. For this reason, she concludes that
Google's proposed communications do not threaten the fairness of
the litigation.
Having concluded that Google's proposed email communication to DBM
advertisers is not improper, the Magistrate further concludes that
Google may also communicate regarding the same matters by telephone
with these advertisers. Google advises the Court that it may be
necessary to engage in such communications with those advertisers
that have the largest accounts because the logistics of processing
the credits and refunds may be complex. It states that its
representatives will be instructed not to comment on the pending
litigation, but only to answer questions regarding the
credit/refund program described in the proposed email
communication. On that basis, she concludes that the Google's
proposed oral communications with DBM advertisers are unlikely to
mislead or coerce the putative class members.
A full-text copy of the Court's May 8, 2019 Order is available at
https://is.gd/PscOnY from Leagle.com.
AdTrader, Inc., Plaintiff, represented by Flora F. Vigo, Esq. --
fvigo@gawpoe.com -- Gaw Poe LLP, Mark Weylin Poe, Esq. --
mpoe@gawpoe.com -- Gaw & Poe LLP, Samuel S. Song, Esq. --
ssong@gawpoe.com -- Gaw & Poe LLP, Victor Meng, Esq. --
vmeng@gawpoe.com -- Gaw & Poe LLP & Randolph Gaw, Gaw & Poe LLP.
Specialized Collections Bureau, Inc., Classic and Food EOOD, LML
CONSULT Ltd., Fresh Break Ltd. & Ad Crunch Ltd., Plaintiffs,
represented by Flora F. Vigo, Gaw Poe LLP, Samuel S. Song, Gaw &
Poe LLP & Randolph Gaw, Gaw & Poe LLP.
Google LLC, Defendant, represented by Jeffrey Gutkin, Esq. --
jgutkin@cooley.com -- Cooley LLP, Michael Graham Rhodes, Esq. --
rhodesmg@cooley.com -- Cooley LLP, Audrey Jane Mott-Smith, Esq. --
amottsmith@cooley.com -- cwong@cooley.com -- Cooley LLP & Kyle
Christopher Wong, Cooley LLP.
GRAND AMERICAN: Sued by Schantz-Tursi Over Unpaid Overtime
----------------------------------------------------------
Dale Schantz-Tursi, on behalf of himself and all others similarly
situated, Plaintiff, v. Grand American Franchise Corporation, Inc.,
Gold Restaurant, Inc., Parkbrook Entertainment, Inc., Almi
Restaurant, Inc. and Frank B Spencer, Defendants, Case No.
19-cv-01157 (N.D. Ohio, May 20, 2019), seeks unpaid overtime
compensation as well as liquidated damages, attorney's fees and
costs under the Fair Labor Standards Act and Ohio Labor Laws.
Defendants own and operate "Crazy Horse," a chain of adult
nightclubs throughout Northeast Ohio. Dale Schantz-Tursi was
employed by Defendants from approximately 2012 to February 2019 as
a club manager. Throughout his employment, he has been denied
overtime pay during workweeks in which he worked 40 or more hours
in a work week, says the complaint. [BN]
Plaintiff is represented by:
Joseph F. Scott, Esq.
Ryan A. Winters, Esq.
Kevin M. McDermott II, Esq.
SCOTT & WINTERS LAW FIRM, LLC
The Caxton Building
812 E. Huron Road, Suite 490
Cleveland, OH 44114
Tel. (216) 912-2221
Fax: (216) 350-6313
Email: jscott@ohiowagelawyers.com
rwinters@ohiowagelawyers.com
kmcdermott@ohiowagelawyers.com
GTX INC: Defending Suits over Oncternal Therapeutics Merger
-----------------------------------------------------------
GTx, Inc. said in its Form 10-Q Report filed with the Securities
and Exchange Commission on May 10, 2019, for the quarterly period
ended March 31, 2019, that the company has been named as a
defendant in several class action suits related to its merger with
Oncternal Therapeutics, Inc.
On March 6, 2019, GTx, Inc. ("GTx" or the "Company") entered into
an Agreement and Plan of Merger and Reorganization, as amended by
Amendment No. 1 to Agreement and Plan of Merger and Reorganization
dated April 30, 2019 (the "Merger Agreement"), with Oncternal
Therapeutics, Inc., a Delaware corporation ("Oncternal"), and
Grizzly Merger Sub, Inc., a Delaware corporation and wholly-owned
subsidiary of GTx ("Merger Sub"). Upon the terms and subject to the
satisfaction of the conditions described in the Merger Agreement,
including approval of the transaction by the Company's stockholders
and Oncternal's stockholders, Merger Sub will be merged with and
into Oncternal (the "Merger"), with Oncternal surviving the Merger
as a wholly-owned subsidiary of the Company.
On April 10, 2019, a purported stockholder of GTx commenced a
putative class action lawsuit captioned Wheby v. GTx, Inc. et al.
in the U.S. District Court for the District of Delaware, naming as
defendants GTx, Michael G. Carter, J. Kenneth Glass, Marc S.
Hanover, J. R. Hyde, III, Garry A. Neil, Kenneth S. Robinson, and
Robert J. Wills, collectively comprising the members of GTx's board
of directors, its CEO (who is also a director), and the Chairman of
the board of directors, Oncternal, and Merger Sub (the "Wheby
Action").
On April 11, 2019, a purported stockholder of GTx commenced a
putative class action lawsuit captioned Miller v. GTx, Inc. et al.
in the U.S. District Court for the District of Delaware, naming as
defendants GTx, GTx"s board of directors, Oncternal, and Merger Sub
(the "Miller Action").
On April 11, 2019, a purported stockholder of GTx commenced a
putative class action lawsuit captioned Kopanic v. GTx, Inc. et al.
in the U.S. District Court for the Southern District of New York,
naming as defendants GTx and GTx's board of directors (the "Kopanic
Action").
On April 23, 2019, a purported stockholder of GTx commenced a
putative class action lawsuit captioned Tabb v. GTx, Inc. et al. in
the U.S. District Court for the District of Delaware, naming as
defendants GTx and GTx's board of directors (the "Tabb Action").
On May 1, 2019, a purported stockholder of GTx commenced a putative
class action lawsuit captioned Living Seas LLC v. GTx, Inc. et al.
in the U.S. District Court for the District of Delaware, naming as
defendants GTx and GTx's board of directors (the "Living Seas
Action").
On May 7, 2019, a purported stockholder of GTx commenced a putative
class action lawsuit captioned Cooper v. GTx, Inc. et al. in the
U.S. District Court for the Southern District of New York, naming
as defendants GTx and GTx's board of directors (the "Cooper
Action", together with the Living Seas Action, the Tabb Action, the
Kopanic Action, the Miller Action, and the Wheby Action, the
"Recent Actions").
Collectively, the Recent Actions allege violations of Sections
14(a) and 20(a) of the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), as well as Rule 14a-9 promulgated thereunder,
in connection with GTx's filing of a registration statement on Form
S-4 in connection with the Merger with the U.S. Securities and
Exchange Commission (the "Registration Statement").
The Living Seas Action, Wheby Action, Kopanic Action and Miller
Action each separately assert that the Registration Statement is
materially deficient and misleading because it failed to disclose
information regarding (i) GTx's and Oncternal's financial
projections, (ii) communications and purported conflicts of
interest between Oncternal and members of GTx's board of directors
and management regarding their future employment with the combined
successor company, and (iii) the confidentiality agreements entered
into between GTx and other potential strategic partners during the
process leading up the signing of the Original Merger Agreement.
The Tabb Action asserts that the Registration Statement is
materially deficient and misleading on the basis of assertions (ii)
and (iii), as contained in the preceding sentence. The Cooper
Action asserts that the Registration Statement is materially
deficient and misleading on the basis of assertions (i) through
(iii), as contained in the first sentence of this paragraph, while
adding a fourth assertion that the Registration Statement is
materially deficient and misleading because (iv) the terms of other
bids provided to GTx by other bidders during negotiations were not
disclosed in the Registration Statement.
As relief, the Recent Actions each separately seek an order, among
other things, enjoining the defendants from closing the proposed
transaction or taking any steps to consummate the Merger and/or
awarding rescissory damages.
GTx said, "We and our board of directors believe that the
above-described claims are without merit and intend to vigorously
defend these actions. We cannot predict the outcome of or estimate
the possible loss or range of loss from any of these matters. It is
possible that additional, similar complaints may be filed or the
complaints described above will be amended. If this occurs, we do
not intend to announce the filing of each additional, similar
complaint or any amended complaint unless it contains allegations
that are substantially distinct from those made in the pending
actions."
GTx, Inc., a biopharmaceutical company, engages in the discovery,
development, and commercialization of medicines for the treatment
of stress urinary incontinence (SUI) and prostate cancer. GTx, Inc.
was founded in 1997 and is headquartered in Memphis, Tennessee.
HAXTON MASONRY: Bid to Transfer Jimenez to Arizona Denied
---------------------------------------------------------
Magistrate Judge Susan van Keulen of the U.S. District Court for
the Northern District of California denied Defendant Haxton's
motion to transfer the case, DAVID JIMENEZ, Plaintiff, v. HAXTON
MASONRY, INC., et al., Defendants, Case No. 18-cv-07109-SVK (N.D.
Cal.), to the District Court of Arizona under 28 U.S.C. Section
1404(a).
Jimenez seeks to bring a class action against Defendant Haxton
under the Fair Labor Standards Act, the California Labor Code and
the California Business and Professions Code. The Plaintiff
specifically seeks recovery for failure to pay wages, overtime and
travel expenses in connection with the Plaintiff's and his
coworkers' travel to worksites in California. The Plaintiff's
first amended complaint alleges that he worked for Haxton as an
hourly employee from 2013 to 2017.
Haxton is a commercial masonry company incorporated in Arizona, and
its only business office is in Yuma, Arizona. The Plaintiff
alleges that as a concrete finisher, Haxton required him to
regularly travel to California to complete masonry projects. He
further alleges that his wage sheets show that he performed
approximately 70% of his work for Haxton in California. The
Plaintiff resides in Yuma, Arizona, so to complete this work,
healleges that Haxton required him and his fellow employees to
travel to and stay overnight at jobsites in California. The
Amended Complaint alleges that on these trips, the Plaintiff and
his Haxton coworkers had to pay for their own travel expenses,
including rental cars, gas, food, and lodging. He contends that he
and the other potential class members have been deprived of wages,
overtime and expenses for this travel time.
Haxton's motion to transfer requests that the Court dismiss or
transfer venue of the lawsuit under Federal Rule of Civil Procedure
12(b)(3) and 28 U.S.C. Section 1404(a). However, Haxton's reply
and representations at oral argument clarify that Haxton only moves
to transfer the action for convenience under Section 1404(a).
Haxton contends that the District of Arizona provides a more
convenient forum for the Parties and potential witnesses, all of
whom reside in Arizona. The Plaintiff opposes Haxton's motion and
argues that the Court should defer to his choice of forum. The
most relevant factors to Haxton's motion to transfer are (1) the
Plaintiff's choice of forum, (2) convenience of the parties, (3)
convenience of witnesses, (4) familiarity with governing law and
(5) the public interest factors.
Judge van Kuelen concludes that the Plaintiff's choice of forum and
the Court's familiarity with the governing law weigh in favor of
denying Haxton's motion to transfer. While the convenience of the
parties and witnesses may weigh in favor of transfer, mitigating
factors such as Haxton's regular and substantial presence in
California for business give these considerations less weight.
Thus, on balance the factors weigh against transferring this case
to Arizona. Accordingly, the Judge finds that Haxton has failed to
meet its burden in demonstrating the necessary level of
inconvenience to disturb the Plaintiff's choice of forum. He will
deny Haxton's motion to transfer.
At the May 7, 2019 hearing, Haxton's counsel informed the Court
that he plans to file a motion to withdraw as counsel shortly and
requested that the Court reserve June 25, 2019, for a potential
hearing on that motion. The Judge directs counsel to Civil Local
Rule 11-5 and notes that a hearing on the counsel's request to
withdraw may not be necessary. He will determine whether or not to
hold a hearing after receiving Haxton's counsel's request to
withdraw as the counsel, which Haxton's counsel will file by May
30, 2019.
In light of Haxton's possible need to secure counsel, the Judge
also continues the Parties' June 4, 2019 initial case management
conference to July 9, 2019 at 9:30 a.m. The Parties will file a
joint case management statement by July 2, 2019.
For the foregoing reasons, Judge van Kuelen (i) denied Haxton's
motion to transfer; (ii) granted both the Plaintiff's and Haxton's
requests for judicial notice; (iii) ordered Haxton's counsel will
file a request to withdraw as the counsel by May 30, 2019; and (iv)
continued the June 4, 2019 initial case management conference to
July 9, 2019 at 9:30 a.m. The Parties will file a joint case
management statement by July 2, 2019.
A full-text copy of the Court's May 10, 2019 Order is available at
https://is.gd/QgvRZN from Leagle.com.
David Jimenez, Plaintiff, represented by Conor Daniel Granahan --
conor@conorgranahanlaw.com -- Law Offices of Conor Granahan.
Haxton Masonry, Inc., Defendant, represented by Michael Meyers
Freeland, Freeland Law Firm & Philip Henri Dyson --
phil@phildysonlaw.com -- Law Office of Philip H. Dyson.
HOME BUYERS: Arbitration Award Confirmation in Jones Recommended
----------------------------------------------------------------
In the case, JASON JONES and AMANDA JONES, Petitioners, v. HOME
BUYERS WARRANTY CORPORATION, and NATIONAL HOME INSURANCE COMPANY (A
RISK RETENTION GROUP), Respondents, Civil Action No. 17-773-JFB-SRF
(D. Del.), Magistrate Judge Shelly R. Fallon of the U.S. District
Court for the District of Delaware recommended that (i) the
Joneses' motion to vacate, modify, or correct the arbitration award
be denied; and (ii) the Respondents' motion to confirm the
arbitration award be granted.
The present action concerns breach of warranty and alleged
construction defect claims arising under or related to the
warranty. The matter was arbitrated before the American
Arbitration Association ("AAA"), which resulted in an Arbitration
Order issued on May 10, 2017.
On Oct. 15, 2015, the Petitioners filed a class action in the
Delaware Superior Court against BPG Residential Partners IV, LLC,
BPGS, Home Buyers Warranty Corp., and National Home Insurance Co.
On Nov. 30, 2015, the Respondents filed a petition in the District
Court of Delaware to enforce the arbitration agreement in the
Warranty.
On May 4, 2016, Chief Magistrate Judge Thynge issued a Report and
Recommendation, which recommended granting the Respondents'
petition. Judge Thynge's Report and Recommendation was adopted by
District Judge Andrews on June 21, 2016. The court enjoined
prosecution of the class action against the Respondents pursuant to
28 U.S.C. Section 2283, determined that the Petitioners were
required to arbitrate, and left the question of the arbitration
agreement's validity to the arbitrator.
On July 22, 2016, the Petitioners commenced the arbitration
proceeding before the AAA against Respondents. The sole question
before the arbitrator was whether the arbitration agreement was
valid, i.e., whether the arbitration provision was enforceable and
not unconscionable. On Aug. 19, 2016, the Respondents asserted a
counterclaim for attorney's fees, arbitration costs, and interest.
On Febr. 14, 2017, the arbitration evidentiary hearing was held,
and Howard D. Venzie rendered his decision on May 10, 2017 in his
"Ruling and Order on Enforcement of Arbitration Agreement,"
concluding that the arbitration agreement was valid and
enforceable, and directed Petitioners to submit an amended
arbitration demand.
On May 23, 2017, the Petitioners informed the arbitrator that they
were appealing the Arbitration Order. The arbitrator stayed all
proceedings until the appeal was completed. The Respondents moved
to dismiss the appeal on June 6, 2017. On June 8, 2017, the
arbitrator lifted his suspension order and directed that the
Petitioners respond to the Respondents' motion to dismiss the
appeal and provide a copy of their appeal.
On June 13, 2017, the Petitioners filed a petition in the Delaware
Chancery Court seeking to vacate the Arbitration Order. On June
16, 2017, the Respondents removed the matter to the Court. On July
12, 2017, the Petitioners moved to remand, which the Court denied
in a Report and Recommendation on May 29, 2018. The Report and
Recommendation denying remand was adopted by Judge Bataillon on
Aug. 21, 2018.
The Petitioners submitted a copy of their Delaware Chancery Court
petition to the arbitrator as proof of their appeal. On July 25,
2017, the arbitrator denied the Respondents' motion to dismiss the
appeal and request for judgment before suspending the proceeding,
pending the resolution of the present matter before the District
Court.
The dispute before the Court is whether the Arbitration Order
should be confirmed for the reasons presented by the Respondents or
vacated for the reasons argued by the Petitioners.
Magistrate Judge Fallon finds that the Petitioners have failed to
carry their "heavy burden" of showing that the arbitrator acted
outside the scope of his contractually delegated authority.
Therefore, she will recommend denying the Petitioners' motion on
this issue.
Contrary to the Petitioners' argument, the arbitrator analyzed the
arbitration agreement under Delaware law and came to a
determination as to its validity. Accordingly, the Magistrate will
recommend denying the Petitioners' motion on this issue.
Next, she finds that the Petitioners have made no allegations of
bad faith or gross misconduct in the exclusion of their testimony.
Although the Petitioners claim the arbitrator questioned why they
were present and did not permit their testimony, they do not cite
any authority or evidence that "the arbitrator's refusal to hear
proffered testimony so affected the rights of a party that it may
be said that he was deprived of a fair hearing. Therefore, the
Magistrate will recommend denying the Petitioners' motion on this
issue.
She further finds that the Petitioners fail to demonstrate the
arbitrator's "evident partiality" necessary to vacate the award
under 9 U.S.C. Section 10(a)(2). Therefore, she will recommend
denying the Petitioners' motion on this issue. The Petitioners
have failed to establish any grounds upon which the Arbitration
Order should be vacated.
Finally, the Magistrate finds that the Petitioners have not
presented evidence or legal authority to meet their burden of
proving that modification under Section 11 is warranted. Therefore,
the court recommends denying Petitioners' motion to modify the
award. She will recommend that the Arbitration Order is binding
upon the parties and any further warranty-related claims between
the Petitioners and the Respondents will be determined through
binding arbitration in accordance with the valid and enforceable
arbitration provision in the home warranty as determined by the
arbitrator.
For the foregoing reasons, Magistrate Judge Fallon recommended
granting the Respondents' motion to confirm the arbitration award
and denying the Petitioners' motion to vacate, modify, or correct
the arbitration award. Her Report and Recommendation is filed
pursuant to 28 U.S.C. Section 636(b)(1)(B), Fed. R. Civ. P.
72(b)(1), and D. Del. LR 72.1. The parties may serve and file
specific written objections within 14 days after being served with
a copy of the Report and Recommendation. The objection and
responses to the objections are limited to 10 pages each. The
failure of a party to object to legal conclusions may result in the
loss of the right to de novo review in the District Court.
The parties are directed to the court's Standing Order For
Objections Filed Under Fed. R. Civ. P. 72, dated Oct. 9, 2013, a
copy of which is available on the court's website,
http://www.ded.uscourts.gov.
A full-text copy of the Court's May 10, 2019 Report &
Recommendation is available at https://is.gd/BnmvUr from
Leagle.com.
Jason Jones & Amanda Jones, Petitioners, represented by Kevin A.
Guerke -- kguerke@ycst.com -- Young, Conaway, Stargatt & Taylor
LLP.
National Home Insurance Company (A Risk Retention Group) and Home
Buyers Warranty Corporation, Respondent, represented by Kathleen M.
Miller -- KMILLER@SKJLAW.COM -- Smith, Katzenstein, & Jenkins LLP &
Robert Karl Beste, III -- RKB@SKJLAW.COM -- Smith, Katzenstein, &
Jenkins LLP.
National Home Insurance Company (A Risk Retention Group) and Home
Buyers Warranty Corporation, Counter Claimant, represented by
Kathleen M. Miller, Smith, Katzenstein, & Jenkins LLP & Robert Karl
Beste, III, Smith, Katzenstein, & Jenkins LLP.
Amanda Jones & Jason Jones, Counter Defendants, represented by
Kevin A. Guerke, Young, Conaway, Stargatt & Taylor LLP.
ILE BIZARD-STE GENEVIEVE: Residents Mull Class Action Over Flood
----------------------------------------------------------------
Phil Carpenter, writing for Global News, reports that a
class-action lawsuit against the borough of Ile Bizard-Ste
Genevieve could be in the works.
Some residents say they feel abandoned by borough authorities and
they claim that borough administration has let them down.
"I mean we were kind of on our own," Joly Street resident Shelley
Base said.
Flooding over the last few weeks has made life miserable and
residents say that's because the mayor didn't do enough to protect
people from the flood or provide adequate relief.
So, volunteer, Robert Idsinga, is collecting names and information
for a possible class-action lawsuit against the borough.
"People were flooded, the street was flooded, there's contaminated
water everywhere, people are having health problems," Idsinga tells
Global News.
People have raised several issues in recent weeks that they claim
is evidence that the borough isn't looking after its residents.
Two days ago there were complaints about stagnant flood water that
has pooled on Barabé Crescent.
Days earlier, those living on Ile Mercier said they were frustrated
because the island has been cut off for almost a month -- the only
way to access it is by boat, because the bridge is closed, and
garbage has been piling up.
"They should try to find some method to open the bridge or make a
secure way to pass over it," resident Pier-Luc Cauchon told Global
News at the time.
Now, water is still on some streets, like Joly, and though it
wasn't as bad as in 2017, Base said, it didn't have to happen
again.
"I had a lot of water coming into the basement [this year] and I
had quite a few things damaged," she said.
Borough mayor Normand Marinacci says he did everything he could.
"We did the right things at the right place," he claims. "We're not
perfect. Maybe a pump could break -- these things happen."
Those pushing for the lawsuit say they want someone to be held
accountable for what they see as negligence.
"A lot of these people are poor," Idsinga points out. "A small
amount of money goes a long way for them. Right now, a lot of them
are staying in flood zones because that's all they can afford to
do."
The amount of the damages will be determined once names and
information have been collected. [GN]
INCLUSIVE EDUCATION: Faces Thorpe Suit in California State Court
----------------------------------------------------------------
A class action lawsuit has been filed against Inclusive Education
and Community Partnership Inc. The case is captioned as Julie
Thorpe, individually and on behalf of all others similarly, the
Plaintiff, vs. Inclusive Education and Community Partnership Inc.,
the Defendant, Case No. 56-2019-00528641-CU-OE-VTA (Cal. Super.,
May 22, 2019). The case alleges employment-related violation.
IECP provides inclusive support services to individuals with
special needs in school, home, and community settings.[BN]
Attorneys for the Plaintiff:
Allen Feghali, Esq.
Kane Moon, Esq.
MOON & YANG, APC
1055 W 7th St, Ste 1880
Los Angeles, CA 90017-2529
Telephone: (213) 232-3128
Facsimile: (213) 232-3125
E-mail: allen.feghali@moonyanglaw.com
kane.moon@moonyanglaw.com
Attorneys for the Defendant:
Monnett G De La Torre, Esq.
Jonathan Fraser Light, Esq.
LIGHTGABLER
760 Paseo Camarillo
Camarillo, CA 93010
Telephone: (805) 248-7208
Facsimile: (805) 248-7209
E-mail: mdelatorre@lightgablerlaw.com
jlight@lightgablerlaw.com
INDIAN RIVER: $1.4MM Settlement in Cooley Suit Has Final Approval
-----------------------------------------------------------------
In the case, CHARLES W. COOLEY, GRADY ANDERSON, and NICHOLAS MARONE
on behalf of themselves and all others similarly situated,
Plaintiffs v. INDIAN RIVER TRANSPORT CO., a Florida Corporation,
and DOES 1-10, inclusive, Defendant, Case No. 1:18-cv-00491 (E.D.
Cal.), Judge William B. Shubb of the U.S. District Court for the
Eastern District of California granted the Plaintiffs' motion for
final approval of the class and class action settlement.
Plaintiffs Cooley, Anderson, and Marone were formerly employed by
Indian River as truck drivers. They brought the putative class
action on behalf of themselves and similarly aggrieved employees.
They allege that Indian River committed various violations of
California law1 by failing to inform its drivers they were entitled
to paid meal or rest breaks, not compensating them for rest breaks
and other time they were working but not driving, and by providing
them with wage statements that did not include all the information
required by the Labor Code.
The parties reached a settlement which would resolve the
Plaintiffs' claims against the Defendant. The total settlement in
the case is $1.4 million. The Court previously granted preliminary
approval of that settlement. The Plaintiffs now move for final
approval of the settlement pursuant to Federal Rule of Civil
Procedure 23(e).
Judge Shubb granted the Plaintiffs' motion for final approval of
the class and class action settlement. Solely for the purpose of
the settlement, and pursuant to Federal Rule of Civil Procedure 23,
he certified the class of all persons who were employed by Indian
River Transport Co. as a truck driver at any time during the period
from April 7, 2013 through Jan. 21, 2019, and performed work for
Indian River for at least one full day in the State of California
at any time.
He appointed the named plaintiffs Charles W. Cooley, Grady
Anderson, and Nicholas Marone as the representatives of the class
and finds that they meet the requirements of Rule 23. He also
appointed Desai Law Firm, P.C., as the counsel to the settlement
class, and finds that the counsel meets the requirements of Rule
23.
The Settlement Agreement's plan for class notice is the best notice
practicable under the circumstances and satisfies the requirements
of due process and Rule 23. The plan is approved and adopted. The
notice to the class complies with Rule 23(c)(2) and Rule 23(e) and
is approved and adopted.
Having found that the parties and their counsel took appropriate
efforts to locate and inform all putative class members of the
settlement, and given that no class members filed an objection to
the settlement, the Judge finds and ordered that no additional
notice to the class is necessary.
As of the date of the entry of the Order, the Plaintiff and all the
class members who have not timely opted out of the settlement do
and will be deemed to have fully, finally, and forever released,
settled, compromised, relinquished, and discharged the Defendants
of and from any and all settled claims, pursuant to the release
provisions stated in the parties' Settlement Agreement.
The Plaintiff's counsel is entitled to fees in the amount of
$462,000 and costs in the amount of $10,000.
The named Plaintiffs are each entitled to an incentive payment of
$10,000.
The Judge dismissed the action with prejudice.
The Clerk is instructed to enter judgment accordingly.
A full-text copy of the Court's May 10, 2019 Order and Memorandum
is available at https://is.gd/HfgnXb from Leagle.com.
Charles W. Cooley, Grady Anderson & Nicholas Marone, Plaintiffs,
represented by Aashish Y. Desai -- aashish@desai-law.com -- Desai
Law Firm, P.C. & Maria Adrianne De Castro -- adrianne@desai-law.com
-- Desai Law Firm PC.
Indian River Transport Co., a Florida Corporation, Respondent,
represented by Alexandra Hemenway -- ahemenway@littler.com --
Littler Mendelson, P.C., Britney Noelle Torres --
btorres@littler.com -- Littler Mendelson, P.C. & Richard H. Rahm
--
btorres@littler.com -- Littler Mendelson, P.C..
INTERMEX WIRE: Has Made Unsolicited Calls, Sawyer Suit Claims
-------------------------------------------------------------
STUART SAWYER, individually and on behalf of all others similarly
situated, Plaintiff v. INTERMEX WIRE TRANSFER, LLC, Defendant, Case
No. 1:19-cv-22212 (S.D. Fla., May 30, 2019) seeks to stop the
Defendants' practice of making unsolicited calls.
Intermex Wire Transfer, LLC provides money transfer services. The
company was founded in 1994 and is headquartered in Miami, Florida.
[BN]
The Plaintiff is represented by:
William "Billy" Peerce Howard, Esq.
THE CONSUMER PROTECTION FIRM, PLLC
4030 Henderson Blvd.
Tampa, FL 33629
Telephone: (813) 500-1500
E-mail: Billy@theconsumerprotectionfirm.com
- and -
Alexander H. Burke, Esq.
BURKE LAW OFFICES, LLC
155 N. Michigan Ave., Suite 9020
Chicago, IL 60601
Telephone: (312) 729-5288
E-mail: aburke@burkelawllc.com
INTERNATIONAL PAPER: Class of Residents Certified in Slocum Suit
----------------------------------------------------------------
The Honorable Eldon E. Fallon grants the Plaintiffs' motion seeking
class certification in the lawsuit captioned SHIRLEY SLOCUM, ET AL.
v. INTERNATIONAL PAPER COMPANY, ET AL., Case No.
2:16-cv-12563-EEF-JVM (E.D. La.).
The Plaintiffs sought certification of this class for purposes of
determining the Defendant's liability:
All natural and juridical persons who sustained any loss or
damages of any kind (including but not limited to property
damages, personal injuries and emotional distress) arising
in any way from or out of the discharges or releases of
Black Liquor from the Bogalusa Paper Mill facility
evaporator tank that ruptured on or about June 10, 2015 and
thereafter as the result of malfunction evaporators prone to
unpermitted releases and/or discharges of Black Liquor on
people and property situated in close proximity to the
Bogalusa Paper Mill.
Shawn C. Reed, Esq., and Jonathan C. Pedersen, Esq., are appointed
as Co-Lead Class Counsel and Co-Lead Liaison Counsel. The
Plaintiffs' Steering Committee, comprised of Shawn C. Reed;
Jonathan C. Pedersen; D. Douglas Howard, Jr.; William H. Arata; and
Thomas M. Discon is established.
The Plaintiffs are ordered to provide the Court with a proposed
notice and the Defendant may file its objection thereto, if any.
This series of class action cases arise out of injuries allegedly
sustained by Plaintiffs as a result of a discharge of "black
liquor" at the Bogalusa Paper Mill on June 10, 2015. The
Plaintiffs assert claims against the Defendant for failure to
provide complete and accurate information about the chemical
composition and known risks presented by the black liquor that was
allegedly discharged from a ruptured evaporator tank at the
Bogalusa Paper Mill. The Plaintiffs' theories of liability sound
in negligence, strict liability, and nuisance.[CC]
INTERNATIONAL PAPER: Ct. Won't Reconsider Bolton Case Dismissal
---------------------------------------------------------------
The Hon. Eldon E. Fallon denied the motion seeking reconsideration
of the Court's dismissal of the lawsuit styled JAMIA BOLTON v.
INTERNATIONAL PAPER COMPANY, ET AL., Case No. 2:16-cv-13346-EEF-JVM
(E.D. La.), as a result of the Plaintiff's failure to comply with
several court orders, including a rule to show cause why this
action should not be dismissed.
The Plaintiff's motion seeking class certification is denied as
moot. The motion seeking to file a reply brief in support of class
certification is also denied as moot.
The case is one in a series of class actions arising out of
injuries allegedly sustained by the Plaintiffs as a result of an
eruption at the Bogalusa Paper Mill on June 10, 2015. Following
the incident, the Plaintiffs filed four separate class actions in
state court, which Defendant International Paper Company
subsequently removed to the District Court. In each action, the
Plaintiffs assert claims against the Defendant for failure to
provide complete and accurate information about the chemical
composition and known risks presented by "black liquor," the
chemical allegedly discharged from a ruptured evaporator tank.
Relevant to the instant motion is the case brought by Jamia Bolton.
Ms. Bolton is represented by Barry Bolton, Esq.
Mr. Bolton's main defense of his failure to participate in
discovery is that he never received notice from the Court regarding
any status conferences, orders, or the rule to show cause of which
he now seeks reconsideration, according to the Court's Order &
Reasons.
In his motion, Mr. Bolton confirmed that the e-mail address he
provided to the Court was correct. The Court's Information
Technology unit diagnostic confirmed he had received all of the
Court's notices. As a result, the Court concludes Mr. Bolton
received notice of each filing, and his motion to reconsider will
not be granted on this basis.
During oral argument, Mr. Bolton also implored the Court to
reinstate this action for the benefit of his clients. However,
dismissal of Mr. Bolton's action will not prejudice any Plaintiff,
with the exception of Ms. Jamia Bolton, the only named Plaintiff in
this case, the Court notes.
Because the deadline for seeking class certification passed in
January 2019 and Mr. Bolton did not seek class certification or an
extension of the certification deadline, the only Plaintiff that
could be dismissed with prejudice in this action was Ms. Bolton.
The remaining Plaintiffs Mr. Bolton claims to represent were never
made a party to the case and therefore could not and were not
dismissed.
Finally, and most importantly, Mr. Bolton's motion plainly does not
meet the standard for a motion to reconsider, Judge Fallon opines.
Under Rule 59(e) of the Federal Rules of Civil Procedure, district
courts have the power to consider altering or amending a judgment
that would otherwise be final.
"Because Mr. Bolton does not point to a change in controlling law,
new evidence, and/or a need to correct a clear and manifest error,
the Court will deny the motion for reconsideration," Judge Fallon
adds.[CC]
The Plaintiff is represented by:
Barry W. Bolton, Esq.
LAW OFFICES OF BARRY W. BOLTON
712 Louisiana Ave.
Bogalusa, LA 70427
Telephone: (985) 735-9093
INTERNATIONAL PAPER: Jarrell Wins Class Certification Bid
----------------------------------------------------------
The Honorable Eldon E. Fallon grants the Plaintiffs' motion for
class certification in the lawsuit styled BRENT JARRELL, ET AL. v.
INTERNATIONAL PAPER COMPANY, ET AL., Case No. 2:16-cv-13793-EEF-JVM
(E.D. La.).
The Plaintiffs seek certification of this class for purposes of
determining the Defendant's liability:
All natural and juridical persons who sustained any loss or
damages of any kind (including but not limited to property
damages, personal injuries and emotional distress) arising
in any way from or out of the discharges or releases of
Black Liquor from the Bogalusa Paper Mill facility
evaporator tank that ruptured on or about June 10, 2015 and
thereafter as the result of malfunction evaporators prone to
unpermitted releases and/or discharges of Black Liquor on
people and property situated in close proximity to the
Bogalusa Paper Mill.
Judge Fallon appoints Shawn C. Reed, Esq., and Jonathan C.
Pedersen, Esq., as Co-Lead Class Counsel and Co-Lead Liaison
Counsel. The Plaintiffs' Steering Committee, comprised of Shawn C.
Reed; Jonathan C. Pedersen; D. Douglas Howard, Jr.; William H.
Arata; and Thomas M. Discon is also established.
The Plaintiffs are ordered to provide the Court with a proposed
notice and the Defendant may file its objection thereto, if any.
This series of class action cases arise out of injuries allegedly
sustained by Plaintiffs as a result of a discharge of "black
liquor" at the Bogalusa Paper Mill on June 10, 2015. The
Plaintiffs assert claims against the Defendant for failure to
provide complete and accurate information about the chemical
composition and known risks presented by the black liquor that was
allegedly discharged from a ruptured evaporator tank at the
Bogalusa Paper Mill. The Plaintiffs' theories of liability sound
in negligence, strict liability, and nuisance.[CC]
INTERNATIONAL PAPER: Sanders' Bid to Certify Residents Class OK'd
-----------------------------------------------------------------
The Honorable Eldon E. Fallon grants the Plaintiffs' motion for
class certification in the lawsuit entitled DERRICK SANDERS, ET AL.
v. INTERNATIONAL PAPER COMPANY, ET AL., Case No.
2:16-cv-12567-EEF-JVM (E.D. La.).
The Plaintiffs seek certification of this class for purposes of
determining the Defendant's liability:
All natural and juridical persons who sustained any loss or
damages of any kind (including but not limited to property
damages, personal injuries and emotional distress) arising
in any way from or out of the discharges or releases of
Black Liquor from the Bogalusa Paper Mill facility
evaporator tank that ruptured on or about June 10, 2015 and
thereafter as the result of malfunction evaporators prone to
unpermitted releases and/or discharges of Black Liquor on
people and property situated in close proximity to the
Bogalusa Paper Mill.
Shawn C. Reed, Esq., and Jonathan C. Pedersen, Esq., are appointed
as Co-Lead Class Counsel and Co-Lead Liaison Counsel. The
Plaintiffs' Steering Committee, comprised of Shawn C. Reed;
Jonathan C. Pedersen; D. Douglas Howard, Jr.; William H. Arata; and
Thomas M. Discon is established.
Judge Fallon directed the Plaintiffs to provide the Court with a
proposed notice and the Defendant may file its objection thereto,
if any.
This series of class action cases arise out of injuries allegedly
sustained by Plaintiffs as a result of a discharge of "black
liquor" at the Bogalusa Paper Mill on June 10, 2015. The
Plaintiffs assert claims against the Defendant for failure to
provide complete and accurate information about the chemical
composition and known risks presented by the black liquor that was
allegedly discharged from a ruptured evaporator tank at the
Bogalusa Paper Mill. The Plaintiffs' theories of liability sound
in negligence, strict liability, and nuisance.[CC]
INTUIT INC: Free Tax Filing Program Deceptive, Leon Claims
----------------------------------------------------------
MARIA LEON, on behalf of herself and all others similarly situated,
the Plaintiff, v. INTUIT, INC., the Defendant, Case No.
3:19-cv-02878-CRB (N.D. Cal., May 24, 2019), alleges that Intuit,
the market leader in the electronic tax filing business, has
engaged in false and deceptive advertising, diverting lower-income
tax payers who are eligible to receive free tax preparation and
filing services under the Internal Revenue Service's (IRS) Free
File program (Free File Program) to its paid TurboTax products. The
suit seeks injunctive and equitable relief to put an end to
Intuit's misrepresentations and deception, and for damages.
Legally obligated under an agreement with the IRS to provide free
tax filing services to tax payers who fall in the bottom 70% of
earners, Intuit deliberately hid access to its TurboTax Free File
Program by locating the service on a different website and using
code to block search engine access to that very website.
Then, to further confuse and mislead its 36 million TurboTax
customers, the majority of whom are likely qualified for the IRS
Free File Program, Intuit also launched a "free" product on its
main website and widely advertised its "free" tax services to draw
taxpayers to that website, as opposed to the separate (and largely
hidden website) for the Free File Program. Once the taxpayer
entered in extensive personal information, TurboTax would inform
the applicant that they had to pay a fee in order to submit their
tax returns. As a result of its misrepresentations and deceptive
practices, Intuit has profited handsomely, the lawsuit says.
By evading and violating its obligations under its agreement with
the IRS, Intuit coopted a free program that was intended to
minimize the burden of filing taxes, and instead, through
misrepresentations and deceptive practices, made billions of
dollars on the backs of millions of lower-income taxpayers who were
legally entitled to receive free tax services.[BN]
Attorneys for the Plaintiff:
Jonathan K. Levine, Esq.
Elizabeth C. Pritzker, Esq.
Heather P. Haggarty, Esq.
PRITZKER LEVINE LLP
180 Grand Avenue, Suite 1390
Oakland, CA 94612
Telephone: (415) 692-0772
Facsimile: (415) 366-6110
E-mail: jkl@pritzkerlevine.com
ecp@pritzkerlevine.com
hph@pritzkerlevine.com
INVITEDHOME MANAGEMENT: Faces Reid ADA Suit in S.D. New York
------------------------------------------------------------
A class action lawsuit has been filed against Invitedhome
Management, LLC. The case is captioned as Valentin Reid, on behalf
of himself and all others similarly situated, the Plaintiff, v.
Invitedhome Management, LLC, the Defendant, Case No.
1:19-cv-04810-VSB (S.D.N.Y., May 23, 2019). The suit alleges
Americans with Disabilities Act violation. The case is assigned to
the Hon. Judge Vernon S. Broderick.
InvitedHome Management LLC provides luxury vacation homes rental
and management services in Colorado. The company was founded in
2009 and is based in Boulder, Colorado.[BN]
Attorneys for the Plaintiff:
David Paul Force, Esq.
STEINSAKS LEGAL
66 Washington Place
East Rutherford, NJ 07073
Telephone: (201) 669-9480
E-mail: dforce@steinsakslegal.com
J2 GLOBAL: Davis Neurology Class Suit Remanded to State Court
-------------------------------------------------------------
j2 Global, Inc. said in its Form 10-Q Report filed with the
Securities and Exchange Commission on May 10, 2019, for the
quarterly period ended March 31, 2019, that the class action suit
initiated by Davis Neurology, P.A., has been remanded to the
Arkansas state court.
On January 21, 2016, Davis Neurology, P.A. filed a putative class
action against two j2 Global affiliates in the Circuit Court for
the County of Pope, State of Arkansas (58-cv-2016-40), alleging
violations of the Telephone Consumer Protection Act (TCPA).
The case was ultimately removed to the U.S. District Court for the
Eastern District of Arkansas (the "Eastern District of Arkansas")
(No. 4:16-cv-00682). On June 6, 2016, the j2 Global affiliates
filed a motion for judgment on the pleadings.
On March 20, 2017, the Eastern District of Arkansas dismissed all
claims against the j2 Global affiliates. On July 23, 2018, the
Eighth Circuit Court of Appeals vacated the judgment and remanded
to district court with instructions to return the case to state
court.
The j2 Global affiliates have filed a petition for rehearing or
rehearing en banc. On December 11, 2018, the Eight Circuit Court of
Appeals denied the j2 Global affiliates' petition for panel
rehearing and petition for rehearing en banc. On January 29, 2019,
the case was remanded to the Arkansas state court.
j2 Global, Inc., together with its subsidiaries, provides Internet
services worldwide. It operates through three segments: Fax and
Email Marketing; Voice, Backup, and Security; and Digital Media.
The company was formerly known as j2 Global Communications, Inc.
and changed its name to j2 Global, Inc. in December 2011. j2
Global, Inc. was founded in 1995 and is headquartered in Los
Angeles, California.
JAB HOLDING: Glaeser Sues over Unsolicited Tender Offer
-------------------------------------------------------
PAUL GLAESER, in behalf of himself and all others simialrly
situated, the Plaintiff, vs. SABINE CHALMERS, JOACHIM FABER, OLIVER
GOUDET, PETER HARF, ANNA-LENA KAMENETZKY, PIERRE LAUBIES, PAUL S.
MCHAELS, ERHARD SCHOWEL, ROBERT SINGER, JAB HOLDING COMPANY, S.A.
R.L., JAB COSMETICS B.V., and COTTAGE HOLDCO B.V., the Defendants,
Case No. 2019-0388-AGB (Del. Ch., May 30, 2019), alleges that the
Coty board of directors breached their fiduciary duty with respect
to their recommendation that Coty stockholders tender their shares
to JAB Holding and its affiliates.
On February 13, 2019, JAB commenced an unsolicited tender offer to
acquire additional shares of Coty at a price of $11.65 per share
such that, following the offer, its holdings of the Company would
increase from roughly 40% to anywhere from 47-60% of the
outstanding shares of Coty common stock.
According to the complaint, the Board, already dominated by JAB
affiliates due to JAB's previous majority ownership, appointed the
supposedly independent Special Committee -- that itself has
significant conflict of interest -- to greenlight the Tender Offer.
The conflicted Board and Special Committee proceeded to give in to
JAB'S pressure, trading its recommendation for meaningless
stockholders protections and an increased minimum tender offer to
50.1% of outstanding common stock without any increase in the offer
price, the lawsuit says.[BN]
Attorneys for the Plaintiff:
Carmella P. Keener, Esq.
ROSENTHAL, MONHATT & GODDESS P.A.
919 N. Market Street, Suite 1401
P.O. Box 1070
Wilmington, DE 19899
Telephone: (302) 656 4433
E-mail: ckeener@rmgglaw.com
- and -
Donald J. Enright, Esq.
Elizabeth k. Tripodi, Esq.
1101 30th Street N.W. Suite 115
Washington, DC 20007
Telephone: (202) 524 4290
E-mail: denright@zlk.com
etripodit@zlk.com
JANI-KING OF PHILADELPHIA: Settlement in Myers Has Prelim Approval
------------------------------------------------------------------
In the case, PAMELA MYERS ET AL., v. JANI-KING OF PHILADELPHIA,
INC. ET AL, Civil Action No. 09-1738 (E.D. Pa.), Judge R. Barclay
Surrick of the U.S. District Court for the Eastern District of
Pennsylvania granted the Plaintiffs' Unopposed Motion for
Preliminary Class Action Settlement Approval.
Judge Surrick preliminarily approved the Settlement set forth in
the Parties' Settlement Agreement, which appears to be the product
of serious, informed, and extensive arm's length negotiations
between the Parties and appears to be fair, adequate, and
reasonable to the Settlement Class so as to fall within the range
of possible final approval. He approved the proposed form and
content of the Settlement Notice and Claim Form, and ordered the
Parties to proceed with dissemination of the Notice as provided in
the Settlement Agreement.
All claim forms, opt-out requests, and objections will be due
within 60 days of the date that the Class Notice mailing is
commenced.
Fourteen days prior to the deadline for submitting claim forms,
opt-out requests, and objections, the Class Counsel will file with
the Court any motion for attorneys' fees and costs and any motion
for an enhancement award for the class representatives. Upon
passage of the deadline for claims forms, opt-out requests, and
objections, the Class Counsel will promptly file a motion for final
settlement approval.
A fairness hearing is scheduled for Aug. 20, 2019, at 11:00 a.m.
A full-text copy of the Court's May 10, 2019 Order is available at
https://is.gd/oRpBx2 from Leagle.com.
DARRYL WILLIAMS & HOWARD BROOKS, Plaintiffs, represented by DAVID
J. COHEN -- dcohen@stephanzouras.com -- STEPHAN ZOURAS LLP, JAMES
B. ZOURAS, STEPHAN ZOURAS LLP, PETER DELANO, LICHTEN & LISS-RIORDAN
PC, RYAN F. STEPHAN, STEPHAN ZOURAS LLP, SHANNON LISS-RIORDAN,
LICHTEN & LISS-RIORDAN PC, ADELAIDE PAGANO -- apagano@llrlaw.com --
LICHTEN & LISS-RIORDAN PC & PATRICK HOWARD -- phoward@smbb.com --
SALTZ MONGELUZZI BARRETT & BENDESKY.
JANI-KING OF PHILADELPHIA, INC., JANI-KING, INC. & JANI-KING
INTERNATIONAL, INC., Defendants, represented by AARON D. VANOORT --
aaron.vanoort@FaegreBD.com -- FAEGRE, BAKER, DANIELS, KERRY L.
BUNDY -- kerry.bundy@FaegreBD.com -- FAEGRE BAKER & DANIELS LLP,
DADRI-ANNE A. GRAHAM, FAEGRE BAKER DANIEL LLP, GEORGE A. STOHNER,
FAEGRE BAKER DANIELS LLP, JOSEPH E. WOLFSON, STEVENS & LEE, KENNETH
D. KLEINMAN, STEVENS & LEE PC & LARRY E. LATARTE --
larry.latarte@FaegreBD.com -- FAEGRE BAKER DANIELS LLP.
JP BODEN: Faces Reid ADA Suit in Southern District of New York
--------------------------------------------------------------
A class action lawsuit has been filed against JP Boden USA, LLC.
The case is captioned as Valentin Reid, on behalf of himself and
all others similarly situated, the Plaintiff, vs. JP Boden USA,
LLC, the Defendant, Case No. 1:19-cv-04803-RA (S.D.N.Y., May 23,
2019). The suit alleges Americans with Disabilities Act violation.
The case is assigned to the Hon. Judge Ronnie Abrams.[BN]
Attorneys for the Plaintiff:
David Paul Force, Esq.
66 Washington Place
East Rutherford, NJ 07073
Telephone: (201) 669-9480
E-mail: dforce@steinsakslegal.com
KANDI TECHNOLOGIES: Bid to Dismiss Shareholder Class Suits Pending
------------------------------------------------------------------
Kandi Technologies Group Inc. said in its Form 10-Q Report filed
with the Securities and Exchange Commission on May 10, 2019, for
the quarterly period ended March 31, 2019, that the company is
awaiting the court's decision on its motion to dismiss the
remaining class action suits in New York is still pending
Beginning in March 2017, putative shareholder class actions were
filed against Kandi Technologies Group, Inc. and certain of its
current and former directors and officers in the United States
District Court for the Central District of California and the
United States District Court for the Southern District of New York.
The complaints generally allege violations of the federal
securities laws based on Kandi's disclosure in March 2017 that its
financial statements for the years 2014, 2015 and the first three
quarters of 2016 would need to be restated, and sought damages on
behalf of putative classes of shareholders who purchased or
acquired Kandi's securities prior to March 13, 2017.
All of the remaining cases are in the New York federal court, and
lead plaintiff and lead counsel have been appointed.
Kandi has moved to dismiss the remaining cases and that motion
remains pending.
No further updates were provided in the Company's SEC report.
Kandi Technologies Group Inc. manufactures small vehicles including
all terrain vehicles (ATVs), golf carts, motor cycles, motor
scooters and go-karts. The Company also is focused on the
development of energy saving mini-cars. The company is based in
People's Republic of China.
KENTUCKY: Court Dismisses Class Suit Over Income Tax Imposition
---------------------------------------------------------------
Judge Robert E. Weir of the U.S. District Court for the Eastern
District of Kentucky, Southern Division, London, granted the
Defendants' motion to dismiss under Federal Rules 12(b)(1) and (6)
the case, CHRISTOPHER R. CLASS, Plaintiff, v. STATE OF KENTUCKY, et
al., Defendants, Case No. 6:18-cv-323-REW (E.D. Ky.).
Pro se Plaintiff Class challenges Kentucky's imposition of state
taxes on his federal employment income.
Affording Class the leniency due a pro se litigant, Judge Weir
construes Class' complaint as seeking a refund of his 2015 Kentucky
income tax payment of $3,500 (plus 17% annual interest) based on
alleged RICO violations. Class also appears to seek a declaration
that he (and other federal employees) owe no state income tax to
the Commonwealth. None of Class' claims are properly before the
Court.
Preliminarily, to the extent Class seeks any relief on behalf of a
class of people of similar circumstances, the Judge holds that
plaintiffs in federal court may not appear pro se where interests
other than their own are at stake. Thus, he rejects a class theory
for structural reasons and turns to Class' individual claims.
Class repeatedly invokes diversity of citizenship. Section 1332
vests district courts with original jurisdiction over civil actions
between citizens of different states where the amount in
controversy exceeds $75,000. The Judge finds that the action does
not satisfy either Section 1332 predicate. The parties are not
diverse -- Class lists his address as Nancy, Kentucky, and
identifies all three named Defendants as Kentuckians. And, less
than $75,000 is disputed -- Class seeks a refund of $3,500 along
with 17% annual interest, beginning in 2015. Thus, Section 1332
provides no federal jurisdictional hook for Class' suit.
Class also cites a myriad of federal statutes -- perhaps in an
effort to invoke federal question jurisdiction. Yet scattered
references to federal statutes do not, alone, provide the Court
federal question jurisdiction under 28 U.S.C. Section 1331. A RICO
claim may provide a Section 1331 jurisdictional basis. However,
Class does not ultimately allege any discrete act of RICO
"racketeering activity" by any Defendant. Most importantly, and as
a foundational flaw of the entire case, Class fails to address the
most relevant federal statute: 28 U.S.C. Section 1341. The Tax
Injunction Act bars Class' challenges to Kentucky's taxation policy
so long as the Commonwealth offers a plain, speedy, and efficient
remedy.
For these reasons and under the applicable standards, Judge Weir
dismissed Class' complaint. He denied all pending motions (DE 7,
15, 16 & 18) as moot. A separate Judgment striking the matter from
the active docket will be entered.
A full-text copy of the Court's May 10, 2019 Opinion and Order is
available at https://is.gd/sXP03C from Leagle.com.
Christopher R. Class, Plaintiff, pro se.
State of Kentucky, Tax Agency & Attorney General Andy Beshear,
Defendants, represented by Steven Travis Mayo, Commonwealth of
Kentucky.
KOHLBERG VENTURES: 9th Cir. Flips Dismissal of Wojciechowski Suit
-----------------------------------------------------------------
Judge Ronald M. Gould of the U.S. Court of Appeals for the Ninth
Circuit reversed the district court's dismissal of the case, PETER
WOJCIECHOWSKI, on his own behalf and on behalf of all other persons
similarly situated, Plaintiff-Appellant, v. KOHLBERG VENTURES, LLC,
Defendant-Appellee, Case No. 17-15966 (9th Cir.).
The Court considers whether a prior action brought by
Plaintiff-Appellant Wojciechowski against nonparties to the case
bars the action against Defendant-Appellee Kohlberg, under the
doctrine of claim preclusion. Wojciechowski was formerly employed
by ClearEdge Power, LLC. He was terminated without notice. Six
days later, ClearEdge Power, LLC -- along with its owner, ClearEdge
Power, Inc. -- filed for bankruptcy.
Wojciechowski filed an adversary class action against the ClearEdge
entities in the bankruptcy court. He alleged that the two
ClearEdge entities were a "single employer" under the Worker
Adjustment and Retraining Notification ("WARN") Act, and that the
entities violated that act when they fired him and other employees
without 60 days' advance notice. Wojciechowski settled that
action.
Per the settlement agreement, the class released all claims it had
against "(i) Defendants ClearEdge, Power, Inc. and ClearEdge Power,
LLC and their respective estates," and "(ii) each of the
Defendants' current and former shareholders, officers, directors,
employees, accountants, attorneys, representatives and other
agents, and all of their respective predecessors, successors and
assigns, excluding any third parties which may or may not be
affiliated with Defendants ClearEdge Power, Inc. and ClearEdge
Power LLC, including, but not limited to Kohlberg Ventures, LLC."
Kohlberg was not involved in the bankruptcy proceedings or in
settlement negotiations. The bankruptcy court approved the
settlement agreement and closed the case soon after. The ClearEdge
estates paid a portion of the class members' WARN Act wages and
benefits.
Wojciechowski then filed the putative class action. He alleges
that Kohlberg, as a "single employer" with the ClearEdge entities,
violated the WARN Act when it fired him without advance notice.
Wojciechowski seeks an award for the balance of the Class' WARN Act
wages and benefits. That is, he seeks what the class is owed under
the Act less the amount received from the ClearEdge estates.
Kohlberg moved to dismiss Wojciechowski's claim on the basis of
claim preclusion. The district court granted Kohlberg's motion.
Relevant in the appeal, the district court held that Kohlberg could
not be bound by the settlement agreement -- and the provision
preserving the class' claims against Kohlberg -- because Kohlberg
was not a party to the adversary proceeding and did not agree to
allow Wojciechowski to split his claim.
Wojciechowski timely appealed.
Judge Gould finds that Wojciechowski and the class in the prior
bankruptcy proceeding settled their WARN Act claim against the
ClearEdge entities. The bankruptcy court approved the settlement
agreement and closed the case, giving the agreement preclusive
effect. The settlement agreement released the class' claims
against the ClearEdge entities and other parties, but it explicitly
preserved claims against any third parties which may or may not be
affiliated with Defendants ClearEdge Power, Inc. and ClearEdge
Power LLC, including, but not limited to Kohlberg Ventures, LLC.
Under the unambiguous terms of the settlement agreement,
Wojciechowski's and the class' claims against Kohlberg are not
precluded.
Kohlberg contends that it cannot be bound by the settlement
agreement because it was not a party to the adversary proceeding
and did not agree to the terms of the settlement agreement. The
Judge finds Kohlberg incorrect. He opines that when the bankruptcy
court approved the settlement agreement in the previous action,
that agreement became entitled to preclusive effect separate and
apart from any contractual obligations it imposed on the parties.
The agreement determines the scope of preclusion in the action as a
matter of preclusion law, not as a matter of contract. Because the
Court is not imposing any obligations on Kohlberg as a matter of
contract, it does not matter whether Kohlberg, as a nonparty to the
contract, is bound by its terms. Instead, the Court considers
whether the settling parties intended to preclude Wojciechowski's
current claim as a matter of preclusion law. As explained, they
did not.
Based on the foregoing, Judge Gould holds that claim preclusion
does not bar Wojciechowski's WARN Act claim against Kohlberg
because the parties in the bankruptcy proceeding did not intend
their settlement to extend to claims against Kohlberg. It is of no
moment that Kohlberg neither consented to nor approved the
agreement. Because claim preclusion does not bar Wojciechowski's
claim, he reverses the district court's dismissal of his claim and
remanded for further proceedings.
A full-text copy of the Court's May 8, 2019 Opinion is available at
https://is.gd/W7xypv from Leagle.com.
Robert N. Fisher -- rfisher@outtengolden.com -- (argued), René S.
Roupinian -- rsr@outtengolden.com -- and Jack A. Raisner --
jar@outtengolden.com -- Outten & Golden LLP, New York, New York;
Gail L. Chung, Outten & Golden LLP, San Francisco, California; for
Plaintiff-Appellant.
Daniel L. Thieme -- dthieme@littler.com -- (argued), Littler
Mendelson P.C., Seattle, Washington; Michael F. McCabe --
mmccabe@littler.com -- and George J. Tichy II -- gtichy@littler.com
-- Littler Mendelson P.C., San Francisco, California; for
Defendant-Appellee.
LOUISIANA: AJ Moves to Certify Class of Medicaid Beneficiaries
--------------------------------------------------------------
The Plaintiffs in the lawsuit titled A.J., a minor child by and
through his mother, Donnell Creppel; G.M., a minor child by and
through his mother, Jessica Michot; B.W., a minor child by and
through his mother, Kodi Wilson; B.C., a minor child by and through
his mother, Sarah Washington v. REBEKAH GEE, in her official
capacity as Secretary of Louisiana Department of Health, and the
LOUISIANA DEPARTMENT OF HEALTH, Case No. 3:19-cv-00324-BAJ-RLB
(M.D. La.), move the Court to certify this case as a class action,
with the class defined as:
All Medicaid beneficiaries under the age of 21 in Louisiana
who are enrolled in the Children's Choice Waiver, the New
Opportunities Waiver, the Supports Waiver, or the
Residential Options Waiver who have been authorized for
in-home nursing services by the Defendants, but are not
receiving the nursing services at the level authorized by
the Defendants.
The Motion also moves the Court to appoint the Plaintiffs' counse
as Class Counsel pursuant to Rule 23(g) of the Federal Rules of
Civil Procedure.[CC]
The Plaintiffs are represented by:
Amitai Heller, Esq.
Ronald Lospennato, Esq.
ADVOCACY CENTER
8325 Oak Street
New Orleans, LA 70118
Telephone: (504) 522-2337
Facsimile: (504) 522-5507
E-mail: aheller@advocacyla.org
rlospennato@advocacyla.org
- and -
Jane Perkins, Esq.
Elizabeth Edwards, Esq.
NATIONAL HEALTH LAW PROGRAM
200 N. Greensboro St., Suite D-13
Carrboro, NC 27510
Telephone: (919) 968-6308
E-mail: perkins@healthlaw.org
edwards@healthlaw.org
The Defendants are represented by:
Kimberly Sullivan, Esq.
LOUISIANA DEPARTMENT OF HEALTH
628 N. 4th Street
Baton Rouge, LA 70802
Telephone: (225) 342-9500
Facsimile: (225) 342-5568
E-mail: Kimberly.Sullivan@la.gov
LUCKY STORES: Bid to Remand Beasley to Calif. State Court Denied
----------------------------------------------------------------
Judge Maxine M. Chesney of the U.S. District Court for the Northern
District of California denied Beasley's Motion to Remand the case,
MARK BEASLEY, Plaintiff, v. LUCKY STORES, INC., et al., Defendants,
Case No. 18-cv-07144-MMC (N.D. Cal.) to the Superior Court of
California, County of San Francisco, filed Dec. 21, 2018.
The instant case is a putative class action lawsuit brought by
Beasley, a California citizen, as a purchaser and consumer of
Coffee-mate, a line of coffee-creamer products. Beasley alleges
that Nestlé, a Delaware corporation with its principal place of
business in California or Virginia, manufactures, markets, and
sells Coffee-mate. He also alleges that Lucky, Save Mart, and
SMCI, each of which is a California corporation, and Kroger, a
Delaware corporation with its principal place of business in Ohio,
sold Coffee-mate at their grocery stores throughout California, and
that, during the class period, he purchased Coffee-mate from
grocery stores owned by said four Defendants.
According to Beasley, Coffee-mate, during the class period,
contained partially hydrogenated oil ("PHO"), which is an
artificial form of trans fat and an unsafe food additive. In
addition, Beasley alleges that, for portions of the class period,
the packaging for Coffee-mate bore deceptive nutrient content
claims, namely, "0g Trans Fat" and/or "IT'S GOOD TO KNOW: 0g TRANS
FAT/serv LACTOSE-FREE GLUTEN-FREE."
Based on these allegations, Beasley, on Oct. 29, 2018, filed his
initial complaint in the Superior Court of California, County of
San Francisco. In said complaint, Beasley asserted five Causes of
Action, brought both individually and on behalf of the following
two putative classes: (1) a Class, defined as all citizens of
California who purchased in California, on or after Jan. 1, 2010,
Coffee-mate products containing PHO; and (2) a 0g Trans Fat Claim
Subclass, defined as all citizens of California who purchased in
California, on or after January 1, 2010, Coffee-mate containing the
nutrient content claim `0g Trans Fat' and containing PHO.
The first two Causes of Action were brought on behalf of the Class
and asserted, respectively, Unfair Conduct/Unlawful Conduct under
California's Unfair Competition Law ("UCL") and Breach of Implied
Warranty of Merchantability. The last three Causes of Action were
limited to the 0g Trans Fat Claim Subclass and asserted,
respectively, Unlawful Conduct/Fraudulent Conduct/Unfair Conduct
under the UCL, violation of California's False Advertising Law, and
Breach of Express Warranty.
Subsequently, on Nov. 26, 2018, the Defendants removed the instant
case to federal court, on the basis that the Court has jurisdiction
pursuant to the Class Action Fairness Act of 2005 ("CAFA").
On Dec. 19, 2018, Beasley filed the FAC, in which he reasserts the
above five Causes of Action and adds, on behalf of the 0g Trans Fat
Claim Subclass, a Cause of Action under California's Consumer Legal
Remedies Act. Further, as to all Causes of Action, he asserts
jurisdiction is proper in state court because, in addition to
Beasley himself, several Defendants and all the members of the
proposed class are California citizens, all claims are asserted
under the laws of California, and the decisions about the labeling
and formulation of Coffee-mate during the class period were made in
and emanated from California.
By the instant motion, Beasley seeks an order remanding the
above-titled action to state court, on the basis that the local
controversy exception to CAFA applies.
Judge Chesney finds that Beasley has failed to show the instant
action meets all of the requirements for the local controversy
exception, and, consequently, the instant action is not subject to
remand. The Defendants' conduct could be alleged to have injured
consumers throughout the country, and Beasley's limitation of the
putative class and subclass to California citizens does not defeat
CAFA jurisdiction. Beasley's reliance on his inclusion of claims
under the UCL, which he asserts offers consumers protections not
available in other states and unique to California likewise is
unavailing, as Beasley's choice of statute does not alter the fact,
whether or not alleged in the FAC, that the harm he attributes to
Coffee-mate occurred nationwide.
In his motion to remand, Beasley, without providing any explanation
as to how he could amend his complaint in order to qualify for the
local controversy exception, requests leave to amend. Given
Beasley's allegations, the Judge already has the information
required to determine whether the instant suit is within the
Court's jurisdiction under CAFA. Accordingly, amendment being
futile, leave to amend is denied.
For the reasons state, Judge Chesney denied the Motion to Remand.
A full-text copy of the Court's May 10, 2019 Order is available at
https://is.gd/Hkmdcw from Leagle.com.
Mark Beasley, on behalf of himself and all others similarly
situated, Plaintiff, represented by Gregory Weston --
gweston@winston.com -- & Andrew Christopher Hamilton, The Weston
Firm.
Lucky Stores, Inc. & The Save Mart Companies, Inc., Defendants,
represented by Dale Joseph Giali -- dgiali@mayerbrown.com -- Mayer
Brown LLP.
Nestle USA, Inc., Save Mart Super Markets & The Kroger Company,
Defendants, represented by Keri Elizabeth Borders --
kborders@mayerbrown.com -- Mayer Brown LLP & Dale Joseph Giali,
Mayer Brown LLP.
LYNAS CORP: No Class Action After Funding Deal Fails
----------------------------------------------------
Litigation Finance Journal reports that Maurice Blackburn was set
to bring a class action against Lynas Corp. for the Aussie mining
company's failure to alert investors of significant delays to its
Malaysian processing plant, yet the action never got off the ground
after a deal with an unnamed litigation funder never materialized.
[GN]
MAIDEN HOLDINGS: New Jersey Class Action Ongoing
------------------------------------------------
Maiden Holdings Ltd. said in its Form 10-Q Report filed with the
Securities and Exchange Commission on May 10, 2019, for the
quarterly period ended March 31, 2019, that the company continues
to defend putative class suits in the United States District Court
for the District of New Jersey.
A putative class action complaint was filed against Maiden
Holdings, Arturo M. Raschbaum, Karen L. Schmitt, and John M.
Marshaleck in the United States District Court for the District of
New Jersey on February 11, 2019, alleging that Defendants violated
Section 10(b) of the Exchange Act and Rule 10b-5 (and Section 20(a)
for control person liability) by making misrepresentations about
the Company and its business, including the Company's risk
management and underwriting policies and practices.
Plaintiffs further claim that these misrepresentations inflated the
price of Maiden Holdings' common stock, and that when the truth
about the misrepresentations was revealed, the Company's stock
price fell, causing Plaintiffs to incur losses.
Maiden has not yet been served with the complaint, but believe the
claims are without merit and intends to vigorously defend itself.
Maiden Holdings said, "There exist and the Company expects
additional lawsuits to be filed against the Company, its
subsidiaries and its respective officers due to the diminution in
value of our securities as a result of our operating results and
financial condition. It is currently uncertain as to the effect of
such litigation on our business, operating results and financial
conditions."
Maiden Holdings Ltd. is a Bermuda-based holding company, previously
focused on serving the needs of regional and specialty insurers in
the United States ("U.S."), Europe and select other global markets.
The company operates internationally providing branded auto and
credit life insurance products through insurer partners to retail
clients in the EU and other global markets through Maiden Global
Holdings, Ltd. ("Maiden Global") and its subsidiaries. The company
is based in Pembroke, Bermuda.
MANCHESTER FARM: Faces Rojas et al. Suit in Montgomery Maryland
---------------------------------------------------------------
A class action lawsuit has been filed against Manchester Farm
Community Association Inc. The case is captioned as DONNA ROJAS;
LUIS SANTIZO; JASON TONKINS; MILLY TERRY; EUGENE MARTY THOMPSON;
LISA MOORE; DARLEAN THOMPSON; LOLIA S SAMUEL-HORSFALL, individually
and on behalf of all other similarly situated, Plaintiff v.
MANCHESTER FARM COMMUNITY ASSOCIATION INC.; STONEHEDGE CONDOMINIUM
INC.; ACTON VILLAGE ASSOC IATION INC.; BELLE POINT HOMEOWNERS
ASSOCIATION INC.; HUNTINGTON NEIGHBORHOOD ASSOCIATION INC.;
ROSEDALE ESTATES CONDOMINIUM COUNCIL INC.; HUNTING CREEK HOMEOWNERS
ASSOCIATION INC.; and BRENTWOOD HOMEOWNERS ASSOCIATION INC.,
Defendants, Case No. 467322V (Md. Cir., Montgomery Cty., May 31,
2019).
Manchester Farm Community Association Inc. provides community
association management services, property management, accounting,
and financial services. [BN]
The Plaintiff is represented by:
RICHARD S. GORDON, Esq.
GORDON WOLF & CARNEY, CHTD.
100 W Pennsylvania Ave., Suite 100
Towson, MD 21204
Telephone: (410) 825-2300
MDL 2741: Pearlson Suit Consolidated in Roundup Litigation
----------------------------------------------------------
The lawsuit styled DAVID PEARLSON v. MONSANTO COMPANY and JOHN DOES
1-50, Case No. 4:19-cv-00899, was transferred on May 20, 2019, from
the U.S. District Court for the Eastern District of Missouri to the
U.S. District Court for the Northern District of California (San
Francisco).
The California District Court Clerk assigned Case No.
3:19-cv-02708-VC to the proceeding.
The lawsuit is consolidated in the multidistrict litigation titled
In re: Roundup Products Liability Litigation, MDL No.
3:16-md-02741-VC.
The lawsuits in the litigation arise from the Plaintiffs' alleged
Roundup(R)-related injuries. The Plaintiffs seek damages for the
injuries they allegedly suffered as a direct and proximate result
of the Defendant's negligent and wrongful conduct in connection
with the design, development, manufacture, testing, packaging,
promoting, marketing, advertising, distribution, labeling, and/or
sale of the herbicide Roundup(R), containing the active ingredient
glyphosate.
The Plaintiffs maintain that Roundup(R) and/or glyphosate is
defective, dangerous to human health, unfit and unsuitable to be
marketed and sold in commerce, and lacked proper warnings and
directions as to the dangers associated with its use.
Monsanto Company is a Delaware corporation with a principal place
of business in St. Louis, Missouri. Monsanto is a multinational
agricultural biotechnology corporation and the world's leading
producer of glyphosate.[BN]
The Plaintiff is represented by:
Eric D. Holland, Esq.
HOLLAND LAW FIRM
300 North Tucker, Suite 801
St. Louis, MO 63101
Telephone: (314) 241-8111
Facsimile: (314) 241-5554
E-mail: eholland@allfela.com
- and -
Raymond C. Silverman, Esq.
Melanie H. Muhlstock, Esq.
PARKER WAICHMAN LLP
6 Harbor Park Drive
Port Washington, NY 11050
Telephone: (516) 723-4627
Facsimile: (516) 723-4727
E-mail: rsilverman@yourlawyer.com
mmuhlstock@yourlawyer.com
MDL 2741: Six Suits Consolidated in Roundup Liability Litigation
----------------------------------------------------------------
Six lawsuits were transferred on May 20, 2019, from the U.S.
District Court for the Eastern District of Missouri to the U.S.
District Court for the Northern District of California (San
Francisco):
(1) ERLINE S. BALENTINE and KENNETH B. BALENTINE v. MONSANTO
COMPANY, Case No. 4:19-cv-00678.
New Case No. 3:19-cv-02696-VC;
(2) CLAUDE B. BASHER and BETTY L. BASHER v. MONSANTO COMPANY,
Case No. 4:19-cv-00679. New Case No. 3:19-cv-02702-VC;
(3) ROBERT R. BAUMAN v. MONSANTO COMPANY,
Case No. 4:19-cv-00682. New Case No. 3:19-cv-02703-VC;
(4) THOMAS C. BERNT v. MONSANTO COMPANY,
Case No. 4:19-cv-00683. New Case No. 3:19-cv-02704-VC;
(5) JOSEPH P. CAROLLO v. MONSANTO COMPANY,
Case No. 4:19-cv-00685. New Case No. 3:19-cv-02705-VC;
and
(6) GEORGE E. CHALK and MARIAN F. CHALK v. MONSANTO COMPANY,
Case No. 4:19-cv-00686. New Case No. 3:19-cv-02706-VC.
The lawsuits are consolidated in the multidistrict litigation
titled In re: Roundup Products Liability Litigation, MDL No.
3:16-md-02741-VC.
The lawsuits in the litigation arise from the Plaintiffs' alleged
Roundup(R)-related injuries. The Plaintiffs seek damages for the
injuries they allegedly suffered as a direct and proximate result
of the Defendant's negligent and wrongful conduct in connection
with the design, development, manufacture, testing, packaging,
promoting, marketing, advertising, distribution, labeling, and/or
sale of the herbicide Roundup(R), containing the active ingredient
glyphosate.
The Plaintiffs maintain that Roundup(R) and/or glyphosate is
defective, dangerous to human health, unfit and unsuitable to be
marketed and sold in commerce, and lacked proper warnings and
directions as to the dangers associated with its use.
Monsanto Company is a Delaware corporation with a principal place
of business in St. Louis, Missouri. Monsanto is a multinational
agricultural biotechnology corporation and the world's leading
producer of glyphosate.[BN]
The Plaintiffs are represented by:
Seth S. Webb, Esq.
BROWN AND CROUPPEN P.C.
One Metropolitan Square
211 N. Broadway, Suite 1600
St. Louis, MO 63102
Telephone: (314) 222-2222
Facsimile: (314) 421-0359
E-mail: sethw@getbc.com
MEDLEY CAPITAL: Agreement Reached in Suit over Sierra Income Merger
-------------------------------------------------------------------
Medley Capital Corporation said in its Form 10-Q Report filed with
the Securities and Exchange Commission on May 10, 2019, for the
quarterly period ended March 31, 2019, that certain parties in the
case entitled, In re Medley Capital Corporation Stockholder
Litigation, C.A. No. 2019-0100-KSJM, has reached an agreement.
On August 9, 2018, the Company entered into a definitive agreement
to merge with Sierra Income Corporation ("Sierra"). Pursuant to the
Agreement and Plan of Merger, dated as of August 9, 2018, by and
between the Company and Sierra (the "MCC Merger Agreement"), the
Company would, on the terms and subject to the conditions set forth
in the MCC Merger Agreement, merge with and into Sierra, with
Sierra as the surviving entity (the "Combined Company") in the
merger (the "MCC Merger").
On February 11, 2019, a putative stockholder class action related
to the MCC Merger was commenced in the Court of Chancery of the
State of Delaware by FrontFour Capital Group LLC and FrontFour
Master Fund, Ltd (collectively, "FrontFour"). The action, as
consolidated, is captioned In re Medley Capital Corporation
Stockholder Litigation, C.A. No. 2019-0100-KSJM (the "Class
Action").
The complaint alleged that the Company's directors (Brook Taube,
Seth Taube, Jeff Tonkel, Mark Lerdal, Karin Hirtler-Garvey, John E.
Mack, and Arthur S. Ainsberg) breached their fiduciary duties to
the Company's stockholders in connection with the MCC Merger, and
that MDLY, Sierra, MCC Advisors, Medley Group LLC, and Medley LLC
aided and abetted those alleged breaches of fiduciary duties.
On March 11, 2019, following a two-day trial, the Court issued a
Memorandum Opinion (the "Decision") denying FrontFour's requests to
(i) permanently enjoin the MCC Merger and (ii) require the Company
to conduct a "shopping process" for the Company on terms proposed
by FrontFour in its complaint. The Court held that the Company's
directors breached their fiduciary duties in entering into the MCC
Merger, but rejected FrontFour's claim that Sierra aided and
abetted those breaches of fiduciary duties.
The Court ordered defendants to issue corrective disclosures
consistent with the Decision, and enjoined a vote of the Company's
stockholders on the MCC Merger until such disclosures have been
made and stockholders have had the opportunity to assimilate this
information.
On April 15, 2019, certain parties in the Class Action reached
agreement on the principal terms of a settlement, which are
contained in a binding term sheet, dated April 15, 2019 (the
"Settlement Term Sheet"), among Brook Taube, Seth Taube, Jeff
Tonkel, Mark Lerdal, Karin Hirtler-Garvey, John E. Mack, Arthur S.
Ainsberg, the Company, MCC Advisors, Medley LLC, and Medley Group
LLC (the "Medley Parties"), on the one hand, and FrontFour, on
behalf of itself and a class of similarly situated stockholders of
the Company, on the other hand.
The Settlement Term Sheet is intended to form the basis of a
definitive stipulation of settlement in the Class Action. The
Settlement Term Sheet provides that the Company will seek to obtain
the agreement and/or consent of Sierra to effect certain amendments
to (i) the MCC Merger Agreement and (ii) the MDLY Merger Agreement
(together with the MCC Merger Agreement, the "Merger Agreements").
If the foregoing amendments are entered into they will, among other
matters (a) extend the Outside Date (as defined in the Merger
Agreements) to October 31, 2019; (b) permit the Company's special
committee of independent directors (the "MCC Special Committee") to
undertake a sixty-day "go shop" process to solicit superior
transactions to the MCC Merger and (c) if the MCC Merger is
consummated, create a settlement fund, consisting of $17 million in
cash and $30 million of Sierra stock, with the number of shares of
Sierra stock to be calculated using the pro forma NAV reported in
the future proxy supplement describing the amendments to the MCC
Merger Agreement, which will be distributed to eligible members of
the Class (as defined in the Settlement Term Sheet).
In connection with the Settlement Term Sheet, MDLY has executed an
acknowledgement and agreement to take certain actions, including
consenting to certain amendments to the Merger Agreements, in
furtherance of the transactions contemplated thereby.
Medley Capital Corporation is an externally-managed,
non-diversified closed-end management investment company that has
elected to be regulated as a business development company (BDC)
under the 1940 Act. The fund seeks to invest in privately
negotiated debt and equity securities of small and middle market
companies. The company is based in New York, New York.
MEDLEY CAPITAL: RICO Suits in Virginia & Pennsylvania Underway
--------------------------------------------------------------
Medley Capital Corporation said in its Form 10-Q Report filed with
the Securities and Exchange Commission on May 10, 2019, for the
quarterly period ended March 31, 2019, that the company continues
to defend a class action lawsuits in Virginia and Pennsylvania
alleging claims under the Racketeer Influenced and Corrupt
Organizations Act, and various other claims arising out of the
alleged payday lending activities of American Web Loan.
Medley LLC, Medley Capital Corporation, Medley Opportunity Fund II
LP, Medley Management, Inc., Medley Group, LLC, Brook Taube, and
Seth Taube were named as defendants, along with other various
parties, in a putative class action lawsuit captioned as Royce
Solomon, Jodi Belleci, Michael Littlejohn, and Giulianna Lomaglio
v. American Web Loan, Inc., AWL, Inc., Mark Curry, MacFarlane
Group, Inc., Sol Partners, Medley Opportunity Fund, II, LP, Medley
LLC, Medley Capital Corporation, Medley Management, Inc., Medley
Group, LLC, Brook Taube, Seth Taube, DHI Computing Service, Inc.,
Middlemarch Partners, and John Does 1-100, filed on December 15,
2017, amended on March 9, 2018, and amended a second time on
February 15, 2019, in the United States District Court for the
Eastern District of Virginia, Newport News Division, as Case No.
4:17-cv-145 (hereinafter, "Class Action 1").
Medley Opportunity Fund II LP and Medley Capital Corporation were
also named as defendants, along with various other parties, in a
putative class action lawsuit captioned George Hengle and Lula
Williams v. Mark Curry, American Web Loan, Inc., AWL, Inc., Red
Stone, Inc., Medley Opportunity Fund II LP, and Medley Capital
Corporation, filed February 13, 2018, in the United States District
Court, Eastern District of Virginia, Richmond Division, as Case No.
3:18-cv-100 ("Class Action 2").
Medley Opportunity Fund II LP and Medley Capital Corporation were
also named as defendants, along with various other parties, in a
putative class action lawsuit captioned John Glatt, Sonji Grandy,
Heather Ball, Dashawn Hunter, and Michael Corona v. Mark Curry,
American Web Loan, Inc., AWL, Inc., Red Stone, Inc., Medley
Opportunity Fund II LP, and Medley Capital Corporation, filed
August 9, 2018 in the United States District Court, Eastern
District of Virginia, Newport News Division, as Case No.
4:18-cv-101 ("Class Action 3") (together with Class Action 1 and
Class Action 2, the "Virginia Class Actions").
Medley Opportunity Fund II LP was also named as a defendant, along
with various other parties, in a putative class action lawsuit
captioned Christina Williams and Michael Stermel v. Red Stone, Inc.
(as successor in interest to MacFarlane Group, Inc.), Medley
Opportunity Fund II LP, Mark Curry, Brian McGowan, Vincent Ney, and
John Doe entities and individuals, filed June 29, 2018 and amended
July 26, 2018, in the United States District Court for the Eastern
District of Pennsylvania, as Case No. 2:18-cv-2747 (the
"Pennsylvania Class Action") (together with the Virginia Class
Actions, the "Class Action Complaints").
The plaintiffs in the Class Action Complaints filed their putative
class actions alleging claims under the Racketeer Influenced and
Corrupt Organizations Act, and various other claims arising out of
the alleged payday lending activities of American Web Loan.
The claims against Medley Opportunity Fund II LP, Medley LLC,
Medley Capital Corporation, Medley Management, Inc., Medley Group,
LLC, Brook Taube, and Seth Taube (in Class Action 1, as amended);
Medley Opportunity Fund II LP and Medley Capital Corporation (in
Class Action 2 and Class Action 3); and Medley Opportunity Fund II
LP (in the Pennsylvania Class Action), allege that those defendants
in each respective action exercised control over, or improperly
derived income from, and/or obtained an improper interest in,
American Web Loan's payday lending activities as a result of a loan
to American Web Loan. The loan was made by Medley Opportunity Fund
II LP in 2011.
American Web Loan repaid the loan from Medley Opportunity Fund II
LP in full in February of 2015, more than 1 year and 10 months
prior to any of the loans allegedly made by American Web Loan to
the alleged class plaintiff representatives in Class Action 1.
In Class Action 2, the alleged class plaintiff representatives have
not alleged when they received any loans from American Web Loan. In
Class Action 3, the alleged class plaintiff representatives claim
to have received loans from American Web Loan at various times from
February 2015 through April 2018.
In the Pennsylvania Class Action, the alleged class plaintiff
representatives claim to have received loans from American Web Loan
in 2017. By orders dated August 7, 2018 and September 17, 2018, the
Court presiding over the Virginia Class Actions consolidated those
cases for all purposes.
On October 12, 2018, Plaintiffs in Class Action 3 filed a notice of
voluntary dismissal of all claims, and on October 29, 2018,
Plaintiffs in Class Action 2 filed a notice of voluntary dismissal
of all claims.
Medley LLC, Medley Capital Corporation, Medley Management, Inc.,
Medley Group, LLC, Brook Taube, and Seth Taube never made any loans
or provided financing to, or had any other relationship with,
American Web Loan.
Medley Opportunity Fund II LP, Medley LLC, Medley Capital
Corporation, Medley Management, Inc., Medley Group, LLC, Brook
Taube, Seth Taube are seeking indemnification from American Web
Loan, various affiliates, and other parties with respect to the
claims in the Class Action Complaints.
Medley Opportunity Fund II LP, Medley LLC, Medley Capital
Corporation, Medley Management, Inc., Medley Group, LLC, Brook
Taube, and Seth Taube believe the alleged claims in the Class
Action Complaints are without merit and they intend to defend these
lawsuits vigorously.
Medley Capital Corporation is an externally-managed,
non-diversified closed-end management investment company that has
elected to be regulated as a business development company (BDC)
under the 1940 Act. The fund seeks to invest in privately
negotiated debt and equity securities of small and middle market
companies. The company is based in New York, New York.
MELINTA THERAPEUTICS: Appeal in Consolidated Class Suit Pending
---------------------------------------------------------------
Melinta Therapeutics, Inc. said in its Form 10-Q Report filed with
the Securities and Exchange Commission on May 10, 2019, for the
quarterly period ended March 31, 2019, that the appeal from a court
decision in a consolidated class action suit in North Carolina
remains pending.
On November 3, 2017, Melinta merged with Cempra, Inc. in a business
combination. Prior to the merger, on November 4, 2016, a securities
class action lawsuit was commenced in the United States District
Court, Middle District of North Carolina, Durham Division, naming
Cempra, Inc. (now known as Melinta Therapeutics, Inc.) (for
purposes of this Contingencies section, "Cempra") and certain of
Cempra's officers as defendants.
Two substantially similar lawsuits were filed in the United States
District Court, Middle District of North Carolina on November 22,
2016, and December 30, 2016, respectively.
Pursuant to the Private Securities Litigation Reform Act, on July
6, 2017, the court consolidated the three lawsuits into a single
action and appointed a lead plaintiff and co-lead counsel in the
consolidated case.
On August 16, 2017, the plaintiff filed a consolidated amended
complaint. The plaintiff alleged violations of the Securities
Exchange Act of 1934 (the "Exchange Act") in connection with
allegedly false and misleading statements made by the defendants
between July 7, 2015, and November 4, 2016 (the "Class Period").
The plaintiff sought to represent a class comprised of purchasers
of Cempra's common stock during the Class Period and sought
damages, costs and expenses and such other relief as determined by
the court. On September 29, 2017, the defendants filed a motion to
dismiss the consolidated amended complaint.
After the motion to dismiss was fully briefed, the court heard oral
arguments on July 24, 2018. On October 26, 2018, the court granted
the defendants' motion to dismiss and dismissed the plaintiff's
consolidated amended complaint in its entirety.
On November 21, 2018, the plaintiff filed its notice of appeal, and
on December 20, 2018, the Fourth Circuit entered its briefing
schedule. The appellant filed its brief on January 28, 2019; the
appellee filed its response brief on February 27, 2019; and the
appellant filed its reply brief on March 20, 2019. The court has
not yet ruled on the appeal.
Melinta said, "We believe that we have meritorious defenses and
intend to defend the lawsuit vigorously. It is possible that
similar lawsuits may yet be filed in the same or other courts that
name the same or additional defendants."
Melinta Therapeutics, Inc., a commercial-stage pharmaceutical
company, discovers, develops, and commercializes various
anti-infectives for the treatment of bacterial infectious diseases
in North America. Melinta Therapeutics, Inc. was founded in 2000
and is headquartered in New Haven, Connecticut.
MERCK SHARP: Supreme Court Allows Fosamax Class Action to Proceed
-----------------------------------------------------------------
Matthew Vadum, writing for The Epoch Times, reports that the
Supreme Court decided to allow a class-action lawsuit against an
osteoporosis drug maker to proceed and stipulated that when the
matter is adjudicated, a judge, not a jury, must decide whether
federal law requires that a warning be placed on the drug's label.
The opinion written by Justice Stephen Breyer came May 20 in the
case known as Merck Sharp & Dohme Corp. v. Albrecht. All nine
justices agreed in the judgment reached by Breyer, but there were
two concurring opinions that provided different reasonings for
reaching that result.
More than 500 consumers are suing the company, claiming injuries
dating from 1999 through 2010 related to their use of Fosamax,
sales of which brought Merck a reported $250 million in 2017 in the
bisphosphonates market. Before the company lost patent exclusivity
in 2008, Fosamax sales routinely generated upward of $3 billion
annually.
The medication has been prescribed to prevent and treat
osteoporosis in post-menopausal women since 1995. Some women have
broken their femurs while using the bone-strengthening drug. The
femur, located in the thigh, is the longest and strongest bone in
the human body.
Litigants claim they suffered atypical femur fractures after
long-term use and further claim the company knew about the risk for
more than 10 years before the government, based on its own
research, added information about it to the drug's warning label in
January 2011.
A federal judge in New Jersey granted summary judgment to Merck,
following the reasoning contained in a 2009 Supreme Court ruling
called Wyeth v. Levine. In that case, the high court found federal
law prevents consumers from filing failure-to-warn claims under
state law when there is "clear evidence" that the Food and Drug
Administration wouldn't have approved the warning.
But on March 22, 2017, a three-judge panel of the
Philadelphia-based Third Circuit Court of Appeals voted unanimously
to revive the plaintiffs' claims.
Although Merck had warned the FDA in 2008 about the risk that the
drug could cause a "low-energy femoral shaft fracture," the FDA
rejected the request to add the warning in 2009.
But even after the FDA said no to adding the warning, the "burden
and the responsibility to correct a drug label rests with the
manufacturer, not the FDA," the circuit court ruled in allowing the
plaintiffs' lawsuits to proceed.
In the newly published Supreme Court opinion, Justice Breyer wrote
that:
"Judges, rather than lay juries, are better equipped to evaluate
the nature and scope of an agency's determination."
"Judges are experienced in 'the construction of written
instruments,' such as those normally produced by a federal agency
to memorialize its considered judgments."
Breyer wrote that failure-to-warn claims under state law continue
to be preempted by federal law if there is "clear evidence" that
the FDA would have refused to change the drug's label.
He clarified that "clear evidence" means "evidence that shows the
court that the drug manufacturer fully informed the FDA of the
justifications for the warning required by state law and that the
FDA, in turn, informed the drug manufacturer that the FDA would not
approve a change to the drug's label to include that warning."
At oral arguments before the Supreme Court, the class-action
litigants' lawyer, David C. Frederick, said Merck consultant Dr.
Joseph M. Lane of the Hospital for Special Surgery in New York
City, previously complained that the company failed to provide
"medically accurate education" to the Food and Drug Administration
about fractures suffered by users of the drug.
Frederick said Lane is "the one who had coined the term 'Fosamax
fracture' because, in all of his years of osteology, he had not
encountered these kinds of fractures until he had patients coming
to him who were on this drug." [GN]
A full-text copy of the Opinion is available at
https://tinyurl.com/y6pj4maj
MOM365 INC: $400K Settlement in Hoover Suit Has Prelim Approval
---------------------------------------------------------------
In the case, KELLY HOOVER, Plaintiff, v. MOM365, INC., a Missouri
Corporation; and DOES 1 to 100, inclusive, Defendants, Case No.
2:17-cv-01328-TLN-CKD (E.D. Cal.), Judge Troy L. Nunley of the U.S.
District Court for the Eastern District of California granted the
Plaintiff's Motion for Preliminary Approval of Class Action
Settlement.
The Plaintiff filed the present putative class action on May 19,
2017. By way of the First Amended Complaint against the Defendant,
the Plaintiff alleges class and Private Attorneys General Act
("PAGA") claims for failure to provide legally compliant rest
periods; failure to pay wages for all hours worked, including
minimum and overtime wages; failure to provide Paid Time Off
benefits in violation of California Labor Code section 227.3;
failure to provide Paid Time Off benefits that complied with the
California Healthy Workplace Healthy Families Act of 2014; failure
to pay all wages due or owed at termination; and failure to provide
legally compliant wage statements. The Plaintiff also alleges
unfair competition claims based on these allegations. The
Plaintiff properly alleges that she has exhausted administrative
remedies on the PAGA claims as detailed in the Motion.
The Defendant denies all of the Plaintiff's claims and denies that
the case is appropriate for class treatment.
The parties have agreed to a PAGA and class settlement. The
Defendant will provide monetary consideration in exchange for a
judgment consistent with the terms of the proposed settlement as
set forth in the Joint Stipulation Regarding Class Action
Settlement and Release.
To briefly summarize, the Agreement provides that Defendant will
pay a total of $400,000, in addition to any monies necessary to
satisfy the Defendant's tax obligations, in exchange for the
release of the claims described in the Agreement. Costs of
administering the settlement will be paid from the settlement
proceeds; $10,000 of the settlement proceeds will be allocated to
PAGA claims ($2,500 to the settlement class; $7,500 to the LWDA);
up to 25% will be paid to Plaintiff's attorneys, and up to $12,000
will cover litigation costs. The class members who fail to timely
opt out will waive any and all claims that are pled in the Action
or could have been pled. Any amount from settlement checks not
cashed within 180 days of issuance will be paid out pursuant to
California Code of Civil Procedure Section 384(b) as follows: (1)
25% to the State Treasury for deposit in the Trial Court
Improvement and Modernization Fund; (2) 25% to the State Treasury
for deposit into the Equal Access Fund of the Judicial Branch; and
(3) 50% to the Sacramento Voluntary Legal Services Program of
Northern California Employment Law Clinic as cy pres beneficiaries.
No portion of the Gross Settlement Amount or Net Settlement Amount
will revert to the Defendant for any reason.
Judge Nunley preliminarily and conditionally approved the following
class for settlement purposes only, subject to a final fairness
hearing and certification of the settlement class, under the
Federal Rules of Civil Procedure and related case law: All of the
Defendant's California employees who were paid under Defendant's
commission, piece rate, and/or incentive based compensation system,
including but not limited to, employees working under the
photographer job title from May 17, 2013, to the Preliminary
Approval Date. For purposes of preliminary approval, he finds that
the settlement class meets the requirements of Federal Rules of
Civil Procedure 23(a) and 23(b)(3).
Furthermore, the Judge finds that Plaintiff Kelly Hoover and her
counsel, Galen T. Shimoda and Justin P. Rodriguez of the Shimoda
Law Corp., are adequate representatives of the settlement class.
The Plaintiff provides that neither the Plaintiff nor the Class
Counsel have conflicts with the class members, and it appears to
the Court that the Plaintiff and the counsel have prosecuted the
action vigorously up to this point, and nothing indicates they will
not continue to do so. He therefore preliminarily approved them as
the class representative and the class counsel, respectively.
The Judge finds on a preliminary basis that the Settlement
Agreement appears to be fair, reasonable, and adequate. Because he
finds the parties' settlement to have been agreed upon only after
extensive and costly investigation, arms'-length negotiations in
mediation, and in an attempt to avoid further delays and costs,the
Judge preliminarily approved the proposed settlement.
He ordered and approved Simpluris, Inc., to act as the Claims
Administrator in the case. Appropriate costs for Simpluris, Inc.'s
services will be decided at a final fairness hearing. Those costs
are presently estimated to be approximately $14,499, and in no
event will they exceed $30,000. Per the Settlement Agreement,
costs are to be paid from the settlement proceeds. Any difference
between the actual costs and the $30,000 noticed to purported class
members will be redistributed to the class pro rata.
The releases and waivers for the class members who do not exclude
themselves from the Settlement Agreement and the releases and
waivers by the class representatives are also approved by the Court
as stated in the Settlement Agreement.
The Plaintiff will file a motion for attorneys' fees, costs, and
Claims Administrator costs no later than 14 days before the end of
the notice period, which will be heard on the same day as the final
fairness hearing. Per the Agreement, in no event will the
attorney's fees exceed 25% of the total gross settlement amount,
and costs will not exceed $12,000. Any monies not so awarded will
be distributed to the settlement class on a pro rata basis.
The Judge ordered the Defendant to provide social security number
information, last known contact information, and any other readily
available information to the Claims Administrator only, and not to
the Plaintiff or her counsel, in order to process the settlement as
contemplated within the Settlement Agreement and approved by the
Order.
Accordingly, with good cause shown, the Judge approved and ordered
the following implementation schedule:
a. Last day for Defendant to provide Claims Administrator
with Class Member information - Within 14 calendar days of the date
of electronic filing of the Preliminary Approval
b. Last day for Claims Administrator to complete the Claims
NCOA search, update Class Member - Within 14 calendar days after
mailing Administrators' receipt of Class Members' information, and
mail Notice Packets information from Defendants
c. Last day for Class Members to opt-out, submit disputes,
submit objections, and submit data requests - 90 calendar days
after mailing of Notice Packet
d. Last day for Class Members to opt-out, submit the
disputes, submit objections, and submit data requests for Notice
Packets re-mailed on or after the conclusion of the Notice Period -
15 calendar days after the conclusion of Notice Period
e. Last day for Claims Administrator to provide the Parties
with list of all Class Members who have timely requested to opt-out
- 21 calendar days after conclusion of Notice Period
f. Last day for Claims Administrator to provide Parties with
signed declaration reporting on settlement administration - 21
calendar days after conclusion of the Notice Period
g. Last day for Claims Administrator to calculate the amounts
owed to fund settlement, employer tax payments, Net Settlement
Amount, and Claim Amounts for Qualified Claimants and report to
Parties - 7 calendar days after Final Approval Date
h. Last day for Defendant to fund settlement 14 calendar days
after Claims Administrators payments report to Parties the amounts
owed to fund settlement, Net Settlement Amount, and Claim Amounts
for Qualified Claimants
i. Last day for Claims Administrator to deliver 7 calendar
days after receipt of funds from payment of Class Counsel's
attorneys' fees and Defendants costs, Enhancement Payments, PAGA
Payment, Settlement Administration Costs, and payment to Qualified
Claimants
j. Last day for Qualified Members to cash settlement checks -
180 days after issuance of Qualified Members checks
k. Last day for Claims Administrator to deliver value of
uncashed settlement checks to cy pres beneficiary - 14 days after
settlement check cashing deadline
For the reasons set forth, Judge Nunley granted the Plaintiff's
unopposed Motion for Preliminary Approval of Class Action
Settlement. He sets a hearing for final approval of the Settlement
Agreement and certification of the settlement class on Nov. 14,
2019, at 2:00 p.m., with briefs and supporting documentation to be
filed no later than Oct. 17, 2019. The class members who object in
a timely manner, and in the manner set forth in the Class Notice,
may appear and present such objections at the fairness hearing in
person or by the counsel.
If for any reason the Court does not grant final approval of the
Settlement Agreement, all evidence and proceedings held in
connection therewith will be without prejudice to the status quo
and rights of the parties to the litigation. The parties will
revert to their respective positions as if no settlement had been
reached at all.
A full-text copy of the Court's May 10, 2019 Order is available at
https://is.gd/Tb1PZN from Leagle.com.
Kelly Hoover, Plaintiff, represented by Galen T. Shimoda --
attorney@shimodalaw.com -- Shimoda Law Corp. & Justin Paul
Rodriguez -- jrodriguez@shimodalaw.com -- Shimoda Law Corp.
MOM365, Inc., a Missouri Corporation, Defendant, represented by
Michelle Brauer Abidoye, Ford & Harrison LLP, Alexandria M. Witte
-- awitte@fordharrison.com -- Ford Harrison LLP & David Cheng, Ford
Harrison LLP.
MONEYGRAM INT'L: Continues to Defend Illinois Class Action
----------------------------------------------------------
MoneyGram International, Inc. said in its Form 10-Q Report filed
with the Securities and Exchange Commission on May 10, 2019, for
the quarterly period ended March 31, 2019, that the company
continues to defend a putative securities class action suit in the
United States District Court for the Northern District of
Illinois.
On November 14, 2018, a putative securities class action lawsuit
was filed in the United States District Court for the Northern
District of Illinois against MoneyGram and certain of its executive
officers.
The lawsuit asserts claims under Sections 10(b) and 20(a) of the
Securities Exchange Act of 1934 and alleges that MoneyGram made
material misrepresentations regarding its compliance with the
stipulated order for permanent injunction and final judgment that
MoneyGram entered into with the Federal Trade Commission ("FTC") in
October 2009 and with the deferred prosecution agreement that
MoneyGram entered into with the U.S. Attorney's Office for the
Middle District of Pennsylvania and the U.S. Department of Justice
in November 2012.
The lawsuit seeks unspecified damages, equitable relief, interest,
and costs and attorneys' fees.
The Company intends to vigorously defend this matter.
MoneyGram said, "We are unable to predict the outcome, or the
possible loss or range of loss, if any, related to this matter."
MoneyGram International, Inc., together with its subsidiaries,
provides money transfer services in the United States and
internationally. The company operates through two segments, Global
Funds Transfer and Financial Paper Products. MoneyGram
International, Inc. was founded in 1940 and is based in Dallas,
Texas.
MONSANTO CO: Roundup Exposure Caused Lymphoma, Bourgeois Says
--------------------------------------------------------------
HELEN BOURGEOIS, and CHARLES BOURGEOIS v. MONSANTO COMPANY, Case
No. 3:19-cv-00321-BAJ-EWD (M.D. La., May 20, 2019), is an action
for damages allegedly suffered by the Plaintiffs as a direct and
proximate result of the Defendant's negligent and wrongful conduct
in connection with the design, development, manufacture, testing,
packaging, promoting, marketing, advertising, distribution,
labeling, and/or sale of the herbicide Roundup(R), containing the
active ingredient glyphosate.
Helen Bourgeois purchased and used Roundup and/or other Monsanto
glyphosate-containing products ("Roundup") in her home from 2003 to
2016, and was diagnosed with non-Hodgkin Lymphoma in 2008. The
Plaintiffs maintain that Roundup(R) and/or glyphosate is defective,
dangerous to human health, unfit and unsuitable to be marketed and
sold in commerce, and lacked proper warnings and directions as to
the dangers associated with its use.
Monsanto Company is a Delaware corporation with a principal place
of business in St. Louis, Missouri. Monsanto is a multinational
agricultural biotechnology corporation and the world's leading
producer of glyphosate.[BN]
The Plaintiffs are represented by:
D. Blayne Honeycutt, Esq.
Colt J. Fore, Esq.
Hannah Honeycutt Calandro, Esq.
FAYARD & HONEYCUTT
519 Florida Avenue SW
Denham Springs, LA 70726
Telephone: (225) 664-0304
Facsimile: (225) 664-2010
E-mail: dbhoneycutt@fayardlaw.com
colt@fayardlaw.com
hannah@fayardlaw.com
MONSANTO COMPANY: Downes Sues over Sale of Herbicide Roundup
------------------------------------------------------------
Robert Downes, the Plaintiff, v. MONSANTO COMPANY, the Defendant,
Case No. 4:19-cv-01552 (E.D. Mo., June 3, 2019), seeks to recover
damages suffered by the Plaintiff, as a direct and proximate result
of the Defendant's negligent and wrongful conduct in connection
with the design, development, manufacture, testing, packaging,
promoting, marketing, advertising, distribution, labeling, and/or
sale of the herbicide Roundup (TM), containing the active
ingredient glyphosate.
The Plaintiff maintains that Roundup (TM) and/or glyphosate is
defective, dangerous to human health, unfit and unsuitable to be
marketed and sold in commerce, and lacked proper warnings and
directions as to the dangers associated with its use. Plaintiff's
injuries, like those striking thousands of similarly situated
victims across the country, were avoidable.
The Plaintiff brings this action for personal injuries sustained by
exposure to Roundup (TM), which contains the active ingredient
glyphosate and the surfactant polyethoxylated tallow amine (POEA).
As a direct and proximate result of being exposed to Roundup, the
Plaintiff developed diffuse Non-Hodgkin's Lymphoma.
Roundup refers to all formulations of Defendant's Roundup products,
including, but not limited to, Roundup Concentrate Poison Ivy and
Tough Brush Killer 1, Roundup Custom Herbicide, Roundup D-Pak
Herbicide, Roundup Dry Concentrate, Roundup Export Herbicide,
Roundup Fence & Hard Edger 1, Roundup Garden Foam Weed & Grass
Killer, Roundup Grass and Weed Killer, Roundup Herbicide, Roundup
Original 2k Herbicide, Roundup Original II Herbicide, Roundup Pro
Concentrate, Roundup Pro Dry Herbicide, and Roundup Promax.[BN]
Attorneys for the Plaintiff:
Kirk J. Goza, Esq.
GOZA & HONNOLD LLC
9500 Nall Ave. Suite 400
Overland Park, KS 66207
Telephone: (913) 451-3433
Facsimile: (913) 839-0567
E-mail: kgoza@gohonlaw.com
MONSANTO COMPANY: Ehrhardt Sues over Sale of Herbicide Roundup
--------------------------------------------------------------
Dennis Ehrhardt, the Plaintiff, v. MONSANTO COMPANY, the Defendant,
Case No. 4:19-cv-01549 (E.D. Mo., June 3, 2019), seeks to recover
damages suffered by the Plaintiff, as a direct and proximate result
of the Defendant's negligent and wrongful conduct in connection
with the design, development, manufacture, testing, packaging,
promoting, marketing, advertising, distribution, labeling, and/or
sale of the herbicide Roundup (TM), containing the active
ingredient glyphosate.
The Plaintiff maintains that Roundup (TM) and/or glyphosate is
defective, dangerous to human health, unfit and unsuitable to be
marketed and sold in commerce, and lacked proper warnings and
directions as to the dangers associated with its use. Plaintiff's
injuries, like those striking thousands of similarly situated
victims across the country, were avoidable.
The Plaintiff brings this action for personal injuries sustained by
exposure to Roundup (TM), which contains the active ingredient
glyphosate and the surfactant polyethoxylated tallow amine (POEA).
As a direct and proximate result of being exposed to Roundup, the
Plaintiff developed diffuse Non-Hodgkin's Lymphoma.
Roundup refers to all formulations of Defendant's Roundup products,
including, but not limited to, Roundup Concentrate Poison Ivy and
Tough Brush Killer 1, Roundup Custom Herbicide, Roundup D-Pak
Herbicide, Roundup Dry Concentrate, Roundup Export Herbicide,
Roundup Fence & Hard Edger 1, Roundup Garden Foam Weed & Grass
Killer, Roundup Grass and Weed Killer, Roundup Herbicide, Roundup
Original 2k Herbicide, Roundup Original II Herbicide, Roundup Pro
Concentrate, Roundup Pro Dry Herbicide, and Roundup Promax.[BN]
Attorneys for the Plaintiff:
Kirk J. Goza, Esq.
GOZA & HONNOLD LLC
9500 Nall Ave. Suite 400
Overland Park, KS 66207
Telephone: (913) 451-3433
MONSANTO COMPANY: Gusler Sues over Sale of Herbicide Roundup
------------------------------------------------------------
Gerald Gusler, the Plaintiff, v. MONSANTO COMPANY, the Defendant,
Case No. 4:19-cv-01554 (E.D. Mo., June 3, 2019), seeks to recover
damages suffered by the Plaintiff, as a direct and proximate result
of the Defendant's negligent and wrongful conduct in connection
with the design, development, manufacture, testing, packaging,
promoting, marketing, advertising, distribution, labeling, and/or
sale of the herbicide Roundup (TM), containing the active
ingredient glyphosate.
The Plaintiff maintains that Roundup (TM) and/or glyphosate is
defective, dangerous to human health, unfit and unsuitable to be
marketed and sold in commerce, and lacked proper warnings and
directions as to the dangers associated with its use. Plaintiff's
injuries, like those striking thousands of similarly situated
victims across the country, were avoidable.
The Plaintiff brings this action for personal injuries sustained by
exposure to Roundup (TM), which contains the active ingredient
glyphosate and the surfactant polyethoxylated tallow amine (POEA).
As a direct and proximate result of being exposed to Roundup, the
Plaintiff developed diffuse Non-Hodgkin's Lymphoma.
Roundup refers to all formulations of Defendant's Roundup products,
including, but not limited to, Roundup Concentrate Poison Ivy and
Tough Brush Killer 1, Roundup Custom Herbicide, Roundup D-Pak
Herbicide, Roundup Dry Concentrate, Roundup Export Herbicide,
Roundup Fence & Hard Edger 1, Roundup Garden Foam Weed & Grass
Killer, Roundup Grass and Weed Killer, Roundup Herbicide, Roundup
Original 2k Herbicide, Roundup Original II Herbicide, Roundup Pro
Concentrate, Roundup Pro Dry Herbicide, and Roundup Promax.[BN]
Attorneys for the Plaintiff:
Kirk J. Goza, Esq.
GOZA & HONNOLD LLC
9500 Nall Ave. Suite 400
Overland Park, KS 66207
Telephone: (913) 451-3433
Facsimile: (913) 839-0567
E-mail: kgoza@gohonlaw.com
MONSANTO COMPANY: Guzman Sues over Sale of Herbicide Roundup
------------------------------------------------------------
Florentina Guzman, the Plaintiff, v. MONSANTO COMPANY, the
Defendant, Case No. 4:19-cv-01642 (E.D. Mo., June 6, 2019), seeks
to recover damages suffered by the Plaintiff, as a direct and
proximate result of the Defendant's negligent and wrongful conduct
in connection with the design, development, manufacture, testing,
packaging, promoting, marketing, advertising, distribution,
labeling, and/or sale of the herbicide Roundup (TM), containing the
active ingredient glyphosate.
The Plaintiff maintains that Roundup (TM) and/or glyphosate is
defective, dangerous to human health, unfit and unsuitable to be
marketed and sold in commerce, and lacked proper warnings and
directions as to the dangers associated with its use. Plaintiff's
injuries, like those striking thousands of similarly situated
victims across the country, were avoidable.
The Plaintiff brings this action for personal injuries sustained by
exposure to Roundup (TM), which contains the active ingredient
glyphosate and the surfactant polyethoxylated tallow amine (POEA).
As a direct and proximate result of being exposed to Roundup, the
Plaintiff developed diffuse Non-Hodgkin's Lymphoma.
Roundup refers to all formulations of Defendant's Roundup products,
including, but not limited to, Roundup Concentrate Poison Ivy and
Tough Brush Killer 1, Roundup Custom Herbicide, Roundup D-Pak
Herbicide, Roundup Dry Concentrate, Roundup Export Herbicide,
Roundup Fence & Hard Edger 1, Roundup Garden Foam Weed & Grass
Killer, Roundup Grass and Weed Killer, Roundup Herbicide, Roundup
Original 2k Herbicide, Roundup Original II Herbicide, Roundup Pro
Concentrate, Roundup Pro Dry Herbicide, and Roundup Promax.[BN]
Attorneys for the Plaintiff:
Kirk J. Goza, Esq.
GOZA & HONNOLD LLC
9500 Nall Ave. Suite 400
Overland Park, KS 66207
Telephone: (913) 451-3433
Facsimile: (913) 839-0567
E-mail: kgoza@gohonlaw.com
MONSANTO COMPANY: Johnson Sues over Sale of Herbicide Roundup
-------------------------------------------------------------
Brenda Johnson, the Plaintiff, v. MONSANTO COMPANY, the Defendant,
Case No. 4:19-cv-01553 (E.D. Mo., June 3, 2019), seeks to recover
damages suffered by the Plaintiff, as a direct and proximate result
of the Defendant's negligent and wrongful conduct in connection
with the design, development, manufacture, testing, packaging,
promoting, marketing, advertising, distribution, labeling, and/or
sale of the herbicide Roundup (TM), containing the active
ingredient glyphosate.
The Plaintiff maintains that Roundup (TM) and/or glyphosate is
defective, dangerous to human health, unfit and unsuitable to be
marketed and sold in commerce, and lacked proper warnings and
directions as to the dangers associated with its use. Plaintiff's
injuries, like those striking thousands of similarly situated
victims across the country, were avoidable.
The Plaintiff brings this action for personal injuries sustained by
exposure to Roundup (TM), which contains the active ingredient
glyphosate and the surfactant polyethoxylated tallow amine (POEA).
As a direct and proximate result of being exposed to Roundup, the
Plaintiff developed diffuse Non-Hodgkin's Lymphoma.
Roundup refers to all formulations of Defendant's Roundup products,
including, but not limited to, Roundup Concentrate Poison Ivy and
Tough Brush Killer 1, Roundup Custom Herbicide, Roundup D-Pak
Herbicide, Roundup Dry Concentrate, Roundup Export Herbicide,
Roundup Fence & Hard Edger 1, Roundup Garden Foam Weed & Grass
Killer, Roundup Grass and Weed Killer, Roundup Herbicide, Roundup
Original 2k Herbicide, Roundup Original II Herbicide, Roundup Pro
Concentrate, Roundup Pro Dry Herbicide, and Roundup Promax.[BN]
Attorneys for the Plaintiff:
Kirk J. Goza, Esq.
GOZA & HONNOLD LLC
9500 Nall Ave. Suite 400
Overland Park, KS 66207
Telephone: (913) 451-3433
Facsimile: (913) 839-0567
E-mail: kgoza@gohonlaw.com
MONSANTO COMPANY: Ladd Sues over Sale of Herbicide Roundup
----------------------------------------------------------
Robert Ladd, the Plaintiff, v. MONSANTO COMPANY, the Defendant,
Case No. 4:19-cv-01543 (E.D. Mo., June 3, 2019), seeks to recover
damages suffered by the Plaintiff, as a direct and proximate result
of the Defendant's negligent and wrongful conduct in connection
with the design, development, manufacture, testing, packaging,
promoting, marketing, advertising, distribution, labeling, and/or
sale of the herbicide Roundup (TM), containing the active
ingredient glyphosate.
The Plaintiff maintains that Roundup (TM) and/or glyphosate is
defective, dangerous to human health, unfit and unsuitable to be
marketed and sold in commerce, and lacked proper warnings and
directions as to the dangers associated with its use. Plaintiff's
injuries, like those striking thousands of similarly situated
victims across the country, were avoidable.
The Plaintiff brings this action for personal injuries sustained by
exposure to Roundup (TM), which contains the active ingredient
glyphosate and the surfactant polyethoxylated tallow amine (POEA).
As a direct and proximate result of being exposed to Roundup, the
Plaintiff developed diffuse Non-Hodgkin's Lymphoma.
Roundup refers to all formulations of Defendant's Roundup products,
including, but not limited to, Roundup Concentrate Poison Ivy and
Tough Brush Killer 1, Roundup Custom Herbicide, Roundup D-Pak
Herbicide, Roundup Dry Concentrate, Roundup Export Herbicide,
Roundup Fence & Hard Edger 1, Roundup Garden Foam Weed & Grass
Killer, Roundup Grass and Weed Killer, Roundup Herbicide, Roundup
Original 2k Herbicide, Roundup Original II Herbicide, Roundup Pro
Concentrate, Roundup Pro Dry Herbicide, and Roundup Promax.[BN]
Attorneys for the Plaintiff:
Kirk J. Goza, Esq.
GOZA & HONNOLD LLC
9500 Nall Ave. Suite 400
Overland Park, KS 66207
Telephone: (913) 451-3433
Facsimile: (913) 839-0567
E-mail: kgoza@gohonlaw.com
MONSANTO COMPANY: Long Sues over Sale of Herbicide Roundup
----------------------------------------------------------
Marvin Long, the Plaintiff, v. MONSANTO COMPANY, the Defendant,
Case No. 4:19-cv-01556-CAS (E.D. Mo., June 3, 2019), seeks to
recover damages suffered by the Plaintiff, as a direct and
proximate result of the Defendant's negligent and wrongful conduct
in connection with the design, development, manufacture, testing,
packaging, promoting, marketing, advertising, distribution,
labeling, and/or sale of the herbicide Roundup (TM), containing the
active ingredient glyphosate.
The Plaintiff maintains that Roundup (TM) and/or glyphosate is
defective, dangerous to human health, unfit and unsuitable to be
marketed and sold in commerce, and lacked proper warnings and
directions as to the dangers associated with its use. Plaintiff's
injuries, like those striking thousands of similarly situated
victims across the country, were avoidable.
The Plaintiff brings this action for personal injuries sustained by
exposure to Roundup (TM), which contains the active ingredient
glyphosate and the surfactant polyethoxylated tallow amine (POEA).
As a direct and proximate result of being exposed to Roundup, the
Plaintiff developed diffuse Non-Hodgkin's Lymphoma.
Roundup refers to all formulations of Defendant's Roundup products,
including, but not limited to, Roundup Concentrate Poison Ivy and
Tough Brush Killer 1, Roundup Custom Herbicide, Roundup D-Pak
Herbicide, Roundup Dry Concentrate, Roundup Export Herbicide,
Roundup Fence & Hard Edger 1, Roundup Garden Foam Weed & Grass
Killer, Roundup Grass and Weed Killer, Roundup Herbicide, Roundup
Original 2k Herbicide, Roundup Original II Herbicide, Roundup Pro
Concentrate, Roundup Pro Dry Herbicide, and Roundup Promax.[BN]
Attorneys for the Plaintiff:
Kirk J. Goza, Esq.
GOZA & HONNOLD LLC
9500 Nall Ave. Suite 400
Overland Park, KS 66207
Telephone: (913) 451-3433
Facsimile: (913) 839-0567
E-mail: kgoza@gohonlaw.
MONSANTO COMPANY: Masko Sues over Sale of Herbicide Roundup
-----------------------------------------------------------
TORRIE MASKO, the Plaintiff, v. MONSANTO COMPANY, the Defendant,
Case No. 4:19-cv-01548 (E.D. Mo., June 3, 2019), seeks to recover
damages suffered by the Plaintiff, as a direct and proximate result
of the Defendant's negligent and wrongful conduct in connection
with the design, development, manufacture, testing, packaging,
promoting, marketing, advertising, distribution, labeling, and/or
sale of the herbicide Roundup (TM), containing the active
ingredient glyphosate.
The Plaintiff maintains that Roundup (TM) and/or glyphosate is
defective, dangerous to human health, unfit and unsuitable to be
marketed and sold in commerce, and lacked proper warnings and
directions as to the dangers associated with its use. Plaintiff's
injuries, like those striking thousands of similarly situated
victims across the country, were avoidable.
The Plaintiff brings this action for personal injuries sustained by
exposure to Roundup (TM), which contains the active ingredient
glyphosate and the surfactant polyethoxylated tallow amine (POEA).
As a direct and proximate result of being exposed to Roundup, the
Plaintiff developed diffuse Non-Hodgkin's Lymphoma.
Roundup refers to all formulations of Defendant's Roundup products,
including, but not limited to, Roundup Concentrate Poison Ivy and
Tough Brush Killer 1, Roundup Custom Herbicide, Roundup D-Pak
Herbicide, Roundup Dry Concentrate, Roundup Export Herbicide,
Roundup Fence & Hard Edger 1, Roundup Garden Foam Weed & Grass
Killer, Roundup Grass and Weed Killer, Roundup Herbicide, Roundup
Original 2k Herbicide, Roundup Original II Herbicide, Roundup Pro
Concentrate, Roundup Pro Dry Herbicide, and Roundup Promax.[BN]
Attorneys for the Plaintiff:
Kirk J. Goza, Esq.
GOZA & HONNOLD LLC
9500 Nall Ave. Suite 400
Overland Park, KS 66207
Telephone: (913) 451-3433
Facsimile: (913) 839-0567
E-mail: kgoza@gohonlaw.com
MONSANTO COMPANY: Oneal Sues over Sale of Herbicide Roundup
-----------------------------------------------------------
DOROTHA S. ONEAL, the Plaintiff, v. MONSANTO COMPANY, the
Defendant, Case No. 3:19-cv-02798-VC (E.D. Mo., April 23, 2019),
seeks to recover damages suffered by the Plaintiff, as a direct and
proximate result of the Defendant's negligent and wrongful conduct
in connection with the design, development, manufacture, testing,
packaging, promoting, marketing, advertising, distribution,
labeling, and/or sale of the herbicide Roundup (TM), containing the
active ingredient glyphosate.
The Plaintiff maintains that Roundup (TM) and/or glyphosate is
defective, dangerous to human health, unfit and unsuitable to be
marketed and sold in commerce, and lacked proper warnings and
directions as to the dangers associated with its use. Plaintiff's
injuries, like those striking thousands of similarly situated
victims across the country, were avoidable.
The Plaintiff brings this action for personal injuries sustained by
exposure to Roundup (TM), which contains the active ingredient
glyphosate and the surfactant polyethoxylated tallow amine (POEA).
As a direct and proximate result of being exposed to Roundup, the
Plaintiff developed diffuse Non-Hodgkin's Lymphoma.
Roundup refers to all formulations of Defendant's Roundup products,
including, but not limited to, Roundup Concentrate Poison Ivy and
Tough Brush Killer 1, Roundup Custom Herbicide, Roundup D-Pak
Herbicide, Roundup Dry Concentrate, Roundup Export Herbicide,
Roundup Fence & Hard Edger 1, Roundup Garden Foam Weed & Grass
Killer, Roundup Grass and Weed Killer, Roundup Herbicide, Roundup
Original 2k Herbicide, Roundup Original II Herbicide, Roundup Pro
Concentrate, Roundup Pro Dry Herbicide, and Roundup Promax.[BN]
Attorneys for the Plaintiff:
Seth S. Webb, Esq.
BROWN & CROUPPEN, P.C.
211 North Broadway, Suite 1600
St. Louis, MO 63102
Telephone: (314) 222-2222
Facsimile: (314) 421-0359
E-mail: sethw@getbc.com
MONSANTO COMPANY: Reger Sues over Sale of Herbicide Roundup
-----------------------------------------------------------
Debbie Reger, the Plaintiff, v. MONSANTO COMPANY, the Defendant,
Case No. 4:19-cv-01555 (E.D. Mo., June 3, 2019), seeks to recover
damages suffered by the Plaintiff, as a direct and proximate result
of the Defendant's negligent and wrongful conduct in connection
with the design, development, manufacture, testing, packaging,
promoting, marketing, advertising, distribution, labeling, and/or
sale of the herbicide Roundup (TM), containing the active
ingredient glyphosate.
The Plaintiff maintains that Roundup (TM) and/or glyphosate is
defective, dangerous to human health, unfit and unsuitable to be
marketed and sold in commerce, and lacked proper warnings and
directions as to the dangers associated with its use. Plaintiff's
injuries, like those striking thousands of similarly situated
victims across the country, were avoidable.
The Plaintiff brings this action for personal injuries sustained by
exposure to Roundup (TM), which contains the active ingredient
glyphosate and the surfactant polyethoxylated tallow amine (POEA).
As a direct and proximate result of being exposed to Roundup, the
Plaintiff developed diffuse Non-Hodgkin's Lymphoma.
Roundup refers to all formulations of Defendant's Roundup products,
including, but not limited to, Roundup Concentrate Poison Ivy and
Tough Brush Killer 1, Roundup Custom Herbicide, Roundup D-Pak
Herbicide, Roundup Dry Concentrate, Roundup Export Herbicide,
Roundup Fence & Hard Edger 1, Roundup Garden Foam Weed & Grass
Killer, Roundup Grass and Weed Killer, Roundup Herbicide, Roundup
Original 2k Herbicide, Roundup Original II Herbicide, Roundup Pro
Concentrate, Roundup Pro Dry Herbicide, and Roundup Promax.[BN]
Attorneys for the Plaintiff:
Kirk J. Goza, Esq.
GOZA & HONNOLD LLC
9500 Nall Ave. Suite 400
Overland Park, KS 66207
Telephone: (913) 451-3433
Facsimile: (913) 839-0567
E-mail: kgoza@gohonlaw.com
MONSANTO COMPANY: Smetana Suit Moved to N.D. California
-------------------------------------------------------
The class action lawsuit titled WAYNE A. SMETANA, individually and
on behalf of all others similarly situated, Plaintiff v. MONSANTO
COMPANY, Defendant, Case No. 4:19-cv-00792-JAR, was removed from
the Eastern District of Missouri, to the U.S. District Court for
the Northern District of California on June 4, 2019. The District
Court Clerk assigned Case No. 3:19-cv-03081 to the proceeding. The
Case is assigned to the Hon. Vince Chhabria.
Monsanto Company, together with its subsidiaries, provides
agricultural products for farmers worldwide. The company was
formerly known as Monsanto Ag Company and changed its name to
Monsanto Company in March 2000. Monsanto Company was founded in
2000 and is based in St. Louis, Missouri. As of June 7, 2018,
Monsanto Company operates as a subsidiary of Bayer
Aktiengesellschaft. [BN]
The Plaintiff is represented by:
Seth S. Webb, Esq.
BROWN & CROUPPEN, P.C.
211 North Broadway, Suite 1600
St. Louis, MO 63102
Telephone: (314) 222-2222
Facsimile: (314) 421-0359
E-mail: sethw@getbc.com
MONSANTO COMPANY: Snell Sues over Sale of Herbicide Roundup
-----------------------------------------------------------
Glen Snell, the Plaintiff, v. MONSANTO COMPANY, the Defendant, Case
No. 4:19-cv-01544 (E.D. Mo., June 3, 2019), seeks to recover
damages suffered by the Plaintiff, as a direct and proximate result
of the Defendant's negligent and wrongful conduct in connection
with the design, development, manufacture, testing, packaging,
promoting, marketing, advertising, distribution, labeling, and/or
sale of the herbicide Roundup (TM), containing the active
ingredient glyphosate.
The Plaintiff maintains that Roundup (TM) and/or glyphosate is
defective, dangerous to human health, unfit and unsuitable to be
marketed and sold in commerce, and lacked proper warnings and
directions as to the dangers associated with its use. Plaintiff's
injuries, like those striking thousands of similarly situated
victims across the country, were avoidable.
The Plaintiff brings this action for personal injuries sustained by
exposure to Roundup (TM), which contains the active ingredient
glyphosate and the surfactant polyethoxylated tallow amine (POEA).
As a direct and proximate result of being exposed to Roundup, the
Plaintiff developed diffuse Non-Hodgkin's Lymphoma.
Roundup refers to all formulations of Defendant's Roundup products,
including, but not limited to, Roundup Concentrate Poison Ivy and
Tough Brush Killer 1, Roundup Custom Herbicide, Roundup D-Pak
Herbicide, Roundup Dry Concentrate, Roundup Export Herbicide,
Roundup Fence & Hard Edger 1, Roundup Garden Foam Weed & Grass
Killer, Roundup Grass and Weed Killer, Roundup Herbicide, Roundup
Original 2k Herbicide, Roundup Original II Herbicide, Roundup Pro
Concentrate, Roundup Pro Dry Herbicide, and Roundup Promax.[BN]
Attorneys for the Plaintiff:
Kirk J. Goza, Esq.
GOZA & HONNOLD LLC
9500 Nall Ave. Suite 400
Overland Park, KS 66207
Telephone: (913) 451-3433
Facsimile: (913) 839-0567
E-mail: kgoza@gohonlaw.com
MONSANTO COMPANY: Strayhorn Sues over Sale of Herbicide Roundup
---------------------------------------------------------------
E. BRUCE STRAYHORN, the Plaintiff, v. MONSANTO COMPANY, the
Defendant, Case No. 2:19-cv-00377 (S.D. Fla., June 6, 2019), seeks
to recover damages suffered by the Plaintiff, as a direct and
proximate result of the Defendant's negligent and wrongful conduct
in connection with the design, development, manufacture, testing,
packaging, promoting, marketing, advertising, distribution,
labeling, and/or sale of the herbicide Roundup (TM), containing the
active ingredient glyphosate.
The Plaintiff maintains that Roundup (TM) and/or glyphosate is
defective, dangerous to human health, unfit and unsuitable to be
marketed and sold in commerce, and lacked proper warnings and
directions as to the dangers associated with its use. Plaintiff's
injuries, like those striking thousands of similarly situated
victims across the country, were avoidable.
The Plaintiff brings this action for personal injuries sustained by
exposure to Roundup (TM), which contains the active ingredient
glyphosate and the surfactant polyethoxylated tallow amine (POEA).
As a direct and proximate result of being exposed to Roundup, the
Plaintiff developed diffuse Non-Hodgkin's Lymphoma.
Roundup refers to all formulations of Defendant's Roundup products,
including, but not limited to, Roundup Concentrate Poison Ivy and
Tough Brush Killer 1, Roundup Custom Herbicide, Roundup D-Pak
Herbicide, Roundup Dry Concentrate, Roundup Export Herbicide,
Roundup Fence & Hard Edger 1, Roundup Garden Foam Weed & Grass
Killer, Roundup Grass and Weed Killer, Roundup Herbicide, Roundup
Original 2k Herbicide, Roundup Original II Herbicide, Roundup Pro
Concentrate, Roundup Pro Dry Herbicide, and Roundup Promax.[BN]
Attorneys for the Plaintiff:
Andrew T. Kagan, Esq.
KAGAN LEGAL GROUP
295 Palmas Inn Way, Suite 6
Palmanova Plaza
Humacao, PR 00791
Telephone: (939) 220-2424
Facsimile: (939) 220-2477
E-mail: andrew@kaganlegalgroup.com
- and -
Elizabeth P. Kagan, Esq.
KAGAN LAW FIRM
8191 College Pkwy Suite 303,
Fort Myers, FL 33919
Telephone: (239) 466-1161
Facsimile: (239) 466-7226
E-mail: liz@kagan-law.com
- and -
Jennifer A. Moore, Esq.
MOORE LAW GROUP, PLLC
1473 South 4th Street
Louisville, KY 40208
Telephone: (502) 717-4080
Facsimile: (502) 717-4086
E-mail: jennifer@moorelawgroup.com
MT. PLEASANT: Faces Class Action Over Excessive Water Bill
----------------------------------------------------------
Kolbie Satterfield, writing for WCSC, reports that a recently filed
class-action lawsuit claims Mt. Pleasant Waterworks overcharged
people on their bills and monopolized the area's water services
available to Mt. Pleasant residents.
The lawsuit states the customer's water bill is based on how many
gallons they use every month, but MPW "routinely bills members of
the putative class amounts that exceed their actual usage." It also
said that the excessive charges did not align with the actual usage
of water and waters services that were used.
The lawsuit claims that MPW has a monopoly on the water services
available to people living in Mt. Pleasant because it is the
"exclusive supplier" to everyone living in the town.
The lawsuit details several incidents where customers were paid
hundreds of dollars more than they were typically charged, and
states that when customers asked about the charge they were told
that they have leaky toilets and that's why the bill high.
"In one particular instance, it is reported that MPW's customer
service representative told a customer that the customer's cat was
flushing the toilet and that the cat was causing the customer's
excessive water bills," the lawsuit states.
The lawsuit goes on to claim that MPW customer service
representatives said leaks from irrigation systems could also be a
result of the excessive water bill.
According to the lawsuit, customers who had the excessive bills had
their plumbing and irrigation systems checked only to have no
issues found.
In one case, the lawsuit states after a new meter was replaced a
woman's bill returned to normal, around $40, compared to a $451
bill that she received in 2016.
In another case listed in the lawsuit, a woman's water bills ranged
from $42.17 to $1,057.99 over the course of several years. The
lawsuit states that after she complained in February 2019, her bill
returned to normal.
Only four people are listed in the lawsuit, but the lawsuit alleges
there could be more than 500 people who have been unnecessarily
overcharged.
The lawsuit is suing both as a class action and on behalf of
individual complaints. The lawsuit is suing for breach of contract,
conversion, unjust enrichment/quantum meruit, negligence, negligent
misrepresentation, unfair trade practices act violations and
fraud.
This lawsuit was filed by K&L Gates Law Firm and they are demanding
a jury trial.
Mt. Pleasant Waterworks released the following statement:
Mount Pleasant Waterworks (MPW) received notice on May 17 of a
lawsuit filed on behalf of four customers who are disputing charges
on their water bills. We want our customers to know that our rate
structure is equitable and fair. MPW has a metering system that can
track water usage by the hour. We regularly help customers find
leaks before they even know they are there -- a benefit that our
customers appreciate.
Lawsuits of this nature impact rate payers more than one would
think. Because a few customers have filed a lawsuit, with no basis,
other customers will pay more in their water bills to cover legal
and administrative costs. Staff directs countless hours and
resources away from our primary mission of providing our customers
with essential water and wastewater service.
Although we can't speak to these customers' accounts because of
privacy concerns and pending litigation, MPW is a responsive and
open public agency. We have a proven track record of operational
and financial transparency and customer advocacy. MPW is committed
to our customers, and we'll give this lawsuit the research and
consideration it deserves.
Mount Pleasant Waterworks was created by the voters of the Town of
Mount Pleasant to serve the town as exclusive water and wastewater
provider through provisions of State law. Our Board is elected, and
we do not make a profit and receive no revenue from taxes. The
revenue we receive from water and sewer bills is reinvested in our
water and sewer system, so we can deliver safe, reliable water,
provide essential fire services and remove wastewater for treatment
at the lowest possible cost.
We have always maintained transparency as an organization and
administer our policies fairly across the board treating every
customer equally. "By no means will this mindset change," says
General Manager Clay Duffie. "MPW staff and board take pride in the
quality of service we provide to our community. We are members of
the same community and strive to provide excellent customer service
every day." [GN]
MURRAY-DARLING: July 3 Hearing Set in Irrigators' Class Action
--------------------------------------------------------------
Alana Christensen, writing for Country News, reports that a group
of southern Riverina irrigators is seeking $750million for losses
in production as a result of "reckless" management of the
Murray-Darling Basin.
The nine irrigators have lodged a class action in the NSW Supreme
Court, saying decisions made by the Murray-Darling Basin Authority
led to them receiving zero general security water allocation and
the region losing millions.
Southern Riverina Irrigators chair and Barooga farmer Chris Brooks,
who is spearheading the class action, said communities had been
"crucified" as a result of the lack of water.
"There is just a continuing desertion of population, businesses
have folded, dairy farms are closing, rice mills are closing down,"
he said.
"It's devastating and mental health is a real issue.
"It's depressing to see it happen in a town you've grown up in."
The group claims that it should have been reasonably foreseeable
that a decision to drain the Menindee Lakes in 2016 would lead to
southern storages falling in the resulting two years, making it
increasingly difficult to fulfill obligations to South Australia
while also delivering allocations.
"(The MDBA) owed a duty of care to those reliant on water
entitlements from the Murray-Darling Basin to not be reckless or
negligent in its discharge of its functions," the statement of
claim reads.
The class action has also taken aim at the authority for conveyance
losses sustained this season, saying if the Murray River was run at
capacity earlier in the year, the losses would not have been
sustained and they still could have received an allocation.
An MDBA report released in March revealed that hundreds of
gigalitres of water had been lost in the Murray River system in the
prior eight months, with as much as 1000Gl in conveyance losses
expected to be recorded by the end of May.
The class action claims that the total amount of spillage in the
system as a result of exceeding constraints at the Barmah Choke and
at Tocumwal exceeded 861000Ml.
"The total amount of water access licences held by members in the
(Murray Irrigation) region is approximately 831000Ml," according to
the statement of claim.
"(The MDBA) was grossly negligent or ... reckless in sending water
above capacity down the Murray from the southern storages and in
doing so causing the spillage," the statement of claim reads.
"(The MDBA) could have, but took no steps to prevent such risk from
being realised."
A spokesperson for the MDBA declined to comment.
One of those who have joined the class action is Flanagan Marketing
Services director Lawrie Flanagan who runs Woodlawn Pastoral
Company — a dairy farm just outside Finley -- with his sons.
Mr Flanagan said the time to fight was now.
"We're going to end up having to walk off because we have no
water," he said.
"It cannot be overstated how much this area has been decimated.
"Whatever happens, at least we'll make them nervous.
"We cannot take it lying down."
The MDBA has until June 11 to respond to the claims, with an
initial hearing scheduled for July 3. [GN]
NAT'L ASSOCIATION: Files Motion to Dismiss Antitrust Class Action
-----------------------------------------------------------------
Aly J. Yale, writing for Forbes, reports that the National
Association of REALTORS has filed a motion to dismiss a class
action lawsuit that was filed against the organization in March.
The antitrust suit, which accuses the trade group of colluding to
inflate commissions through its Multiple Listing Services and
compensation policies, also named four major real estate brokerages
as defendants—RE/MAX, Keller Williams, HomeServices of America
and Realogy Holdings.
According to NAR's statement "the complaint misrepresents NARs
rules for the operation of Multiple Listing Services, which have
long been recognized by the courts across the country as protecting
consumers and creating competitive, efficient markets that benefit
home buyers and sellers."
The suit stems from a 2015 home sale in which Christopher Moehrl,
the original complainant on the claim, was forced to pay both his
agent's commission and the commission of the agent representing the
buyer.
According to the filing, the defendants have been "conspiring to
require home sellers to pay the broker representing the buyer of
their homes, and to pay at an inflated amount, in violation of
federal antitrust law … The conspiracy has saddled home sellers
with a cost that would be borne by the buyer in a competitive
market."
In its motion to dismiss, NAR called Moehrl's claims a "wholly
inaccurate misreading of certain provisions in the NAR Handbook on
Multiple Listing Policy and the NAR Code of Ethics."
The class action suit is now open to sellers in more than 20 MLS
service areas across the country and has spawned two copycat
claims, both filed in April. Mantill Williams, NAR's vice president
of communications, says the group will move to dismiss the other
cases as well.
According to John Smaby, president of NAR, all three claims have no
merit.
"In today's complex real estate environment, REALTORS and Multiple
Listing Services promote a pro-consumer, pro-competitive market for
home buyers and sellers, contrary to the baseless claims of these
class action attorneys," he said. "Our filing shows the lawsuit is
wrong on the facts, wrong on the economics and wrong on the law."
He also says the class action attorneys involved in the case
"dreamed up" anticompetitive rules that don't exist within NAR's
policies.
Those attorneys include a slew of major players from five legal
firms, as well as nonprofit organization Justice Catalyst Law. One
of the firms -- Hagens Berman Sobol Shapiro -- has secured
billion-dollar judgments in class action suits against the tobacco
industry and Toyota and was also involved in the 2016 case against
disgraced medical technology provider Theranos.
Rob Hahn, the founder at real estate consulting firm 7DS
Associates, expects the well-heeled firms are more than prepared
for NAR's motion to dismiss.
"This is entirely expected, and there's no chance that firms like
Hagens Berman filed this without expecting this," Hahn said. "I
think everybody is waiting to see if these three lawsuits survive
the motion to dismiss. If they do, the floodgates will open."
Only time will tell, and as Williams explains, it could be a long
road ahead if the dismissal isn't granted.
"We filed our motion to dismiss, and now we await the judge's
decision," Williams said. "If the court allows the plaintiffs to
proceed, we may be looking at a very long, drawn-out process.
Class-action lawsuits like this one have been known to go on for
years -- sometimes more than a decade." [GN]
NATIONAL SECURITIES: Court Denies Bid to Junk J. Ginzkey Suit
-------------------------------------------------------------
The United States District Court for the Western District of
Washington, Seattle, issued an Order denying Defendant's Motion to
Dismiss in the case captioned JAMES GINZKEY, RICHARD FITZGERALD,
CHARLES CERF, BARRY DONNER, and on behalf of the class members
described below, Plaintiffs, v. NATIONAL SECURITIES CORPORATION, a
Washington Corporation, Defendant. Case No. C18-1773 RSM. (W.D.
Wash.).
The Plaintiffs allege they relied on NSC's approval of the
Beamreach Offerings for sale to make their investments in
Beamreach. Beamreach paid its bankruptcy counsel, Pachulski Stang
Ziehl & Jones, LLP, for services in connection with restructuring
or bankruptcy of the company. Beamreach filed for Chapter 7
bankruptcy citing a catastrophic cash flow situation and loans due.
The Plaintiffs' investments resulted in a total loss. The
Plaintiffs filed this putative class action on December 10, 2018
asserting claims of negligence and unjust enrichment.
Defendant's Motion to Dismiss under Rule 12(b)(6)
Defendant NSC argues that it fully warned the Plaintiffs of all of
the risks they identify in their Complaint that ultimately led to
the demise of Beamreach in February 2017 and that the Plaintiffs'
claims are barred by the doctrine of assumption of risk. NSC asks
the Court to compare the Complaint's numerous bullet points of
allegedly undisclosed risks against the actual disclosures made to
the Plaintiffs in the PPMs.
However, the allegations and disclosures are not identical. For
example, the Plaintiffs allege that there was little commercial
appetite for the IP that Beamreach had spent $250 million
developing, and that the valuable IP portfolio was virtually
worthless.
NSC argues that it disclosed this risk by stating, while major
technical milestones have been achieved and functional product
prototypes demonstrated, several potential technological hurdles
remain, and Beamreach's solar modules have only been tested to a
limited extent in outdoor environments. The Plaintiffs allege that
Beamreach had retained bankruptcy counsel prior to the November
2016 offering, that NSC knew that the company was being forced to
sell the company or refinance the loan by March 2017, and that NSC
should have inquired into Beamreach's bankruptcy plans.
In Response, the Plaintiffs argue that NSC had duties under
Financial Industry Regulatory Authority (FINRA) regulations to
investigate and disclose information beyond what was in the PPMs.
THe Plaintiffs state that NSC vigorously and incorrectly argues
that all of this risks of Beamreach were disclosed by Beamreach
but ignores its duties pursuant FINRA Rule 2111.05 to conduct a
reasonable investigation of the Beamreach before offering
securities to its customers.
As the Court reads it, Defendant NSC is jumping ahead by arguing
about the sufficiency of warnings and what a reasonable jury could
conclude in this case. Such arguments are improper on a Rule
12(b)(6) motion to dismiss.
The question here is whether the Complaint contains sufficient
factual matter, accepted as true, to state a claim to relief that
is plausible on its face. This requirement is met when the
plaintiff pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the
misconduct alleged. As NSC notes, a motion to dismiss may be
granted based upon an affirmative defense where the complaint's
allegations, with all inferences drawn in plaintiff's favor,
nonetheless show that the affirmative defense is apparent on the
face of the complaint.
In this case the Plaintiffs plead that NSC failed to disclose a
wide collection of risks with these investments; although the
record is clear that NSC disclosed many of these risks, it is not
at all clear that it disclosed all of these risks, or that the PPMs
alone satisfied NSC's duty to the Plaintiffs.
Based solely on the Complaint and the PPMs, some of the alleged
risks were arguably not disclosed such as the fact that Beamreach
had virtually worthless intellectual property, or that it had
retained bankruptcy counsel prior to the November 2016 offering.
The Court need not rule on the ultimate issue, but simply finds now
that the Complaint contains sufficient factual content to allow the
reasonable inference of liability, accepting all facts alleged in
the complaint as true and with all inferences in the light most
favorable to the non-moving party. The Plaintiffs' claims are
therefore plausible on their face, and this Motion is properly
dismissed.
A full-text copy of the District Court's June 6, 2019 Order is
available at https://tinyurl.com/y393n9xq from Leagle.com.
James Ginzkey, on behalf of the class members described below,
Richard Fitzgerald, on behalf of the class members described below,
Charles Cerf, on behalf of the class members described below &
Barry Donner, on behalf of the class members described below,
Plaintiffs, represented by Alexander N. Loftus, STOLTMANN LAW
OFFICES, pro hac vice, Joseph Wojciechowski, STOLTMANN LAW OFFICES,
10 South LaSalle Street, Suite 3500, Chicago, IL 60603-1002, pro
hac vice, Joshua B. Kons -- joshuakons@konslaw.com -- LAW OFFICES
OF JOSHUA B. KONS, LLC, pro hac vice & David P. Neuman, ISRAELS &
NEUMAN PLC, 506 Second Avenue, Seattle, WA 98104.
National Securities Corporation, a Washington Corporation,
Defendant, represented by Danilo Daniel Buzzetta, BAKER & HOSTETLER
LLP, pro hac vice, Douglas W. Greene --dgreene@bakerlaw.com --
BAKER HOSTETLER LLP & James Raymond Morrison --
jmorrison@bakerlaw.com -- BAKER HOSTETLER LLP.
NATIONAL SECURITY: Ninth Circuit Appeal Filed in Jewel Class Suit
-----------------------------------------------------------------
Plaintiffs Tash Hepting, Young Boon Hicks, Carolyn Jewel, Erik
Knutzen and Joice Walton filed an appeal from a Court ruling in
their lawsuit entitled Carolyn Jewel, et al. v. National Security
Agency, et al., Case No. 4:08-cv-04373-JSW, in the U.S. District
Court for the Northern District of California, Oakland.
As previously reported in the Class Action Reporter, Carolyn Jewel
filed the case in 2008, claiming the government acquires AT&T
customers' e-mail and other data using spy devices attached to the
Company's network. Digital watchdog group Electronic Frontier
Foundation (EFF) represents Jewel in the action.
The appellate case is captioned as Carolyn Jewel, et al. v.
National Security Agency, et al., Case No. 19-16066, in the United
States Court of Appeals for the Ninth Circuit.
The briefing schedule in the Appellate Case is set as follows:
-- Transcript was to be ordered by June 19, 2019;
-- Transcript is due on July 19, 2019;
-- Appellants Tash Hepting, Young Boon Hicks, Carolyn Jewel,
Erik Knutzen and Joice Walton's opening brief is due on
August 28, 2019;
-- Appellees David S. Addington, Richard B. Cheney, Michael V.
Hayden, National Security Agency, United States Department
of Justice and United States of America's answering brief
is due on September 30, 2019; and
-- Appellant's optional reply brief is due 21 days after
service of the answering brief.[BN]
The Plaintiffs-Appellants are represented by:
Aram Antaramian, Esq.
LAW OFFICE OF ARAM ANTARAMIAN
1714 Blake Street
Berkeley, CA 94703
Telephone: (510) 289-1626
E-mail: aram@eff.org
- and -
Benjamin W. Berkowitz, Esq.
Philip James Tassin, Esq.
Rachael E. Meny, Esq.
KEKER, VAN NEST & PETERS LLP
633 Battery Street
San Francisco, CA 94111
Telephone: (415) 391-5400
Facsimile: (415) 397-7188
E-mail: bberkowitz@kvn.com
ptassin@kvn.com
rmeny@kvn.com
- and -
Cindy Cohn, Esq.
Andrew Gellis Crocker, Esq.
Aaron David Mackey, Esq.
Kurt Opsahl, Esq.
Lee Tien, Esq.
James S. Tyre, Esq.
Jamie Lee Williams, Esq.
ELECTRONIC FRONTIER FOUNDATION
815 Eddy Street
San Francisco, CA 94109
Telephone: (415) 436-9333
Facsimile: (415) 436-9993
E-mail: cindy@eff.org
andrew@eff.org
amackey@eff.org
kurt@eff.org
lee@eff.org
jstyre@eff.org
jamie@eff.org
- and -
Thomas E. Moore, III, Esq.
ROYSE LAW FIRM, PC
149 Commonwealth Drive, Suite 1001
Menlo Park, CA 94025
Telephone: (650) 813-9700
Facsimile: (650) 813-9777
E-mail: tmoore@rroyselaw.com
- and -
Richard R. Wiebe, Esq.
LAW OFFICE OF RICHARD R. WIEBE
44 Montgomery Street, Suite 650
San Francisco, CA 94104
Telephone: (415) 433-3200
Facsimile: (415) 433-6382
E-mail: wiebe@pacbell.net
Defendants-Appellees NATIONAL SECURITY AGENCY; MICHAEL V. HAYDEN,
in his personal capacity; UNITED STATES OF AMERICA; RICHARD B.
CHENEY, in his personal capacity; DAVID S. ADDINGTON, in his
personal capacity; and UNITED STATES DEPARTMENT OF JUSTICE are
represented by:
Marcia Berman, Esq.
Anthony Joseph Coppolino, Esq.
DOJ - U.S. DEPARTMENT OF JUSTICE
20 Massachusetts Ave. NW
Washington, DC 20530
Telephone: (202) 514-2205
Facsimile: (202) 616-8470
E-mail: marcia.berman@usdoj.gov
tony.coppolino@usdoj.gov
NATIONSTAR MORTGAGE: Alhassid FDCPA Suit Dismissal Affirmed in Part
-------------------------------------------------------------------
In the case, SARAH ALHASSID, Plaintiff-Appellant, v. NATIONSTAR
MORTGAGE LLC, d.b.a. Champion Mortgage, Defendant-Appellee, Case
No. 18-13676 (11th Cir.), the U.S. Court of Appeals for the
Eleventh Circuit affirmed in part and reversed in part the district
court's dismissal of Alhassid's five-count class action complaint
against Nationstar, the servicer of her reverse mortgage.
Alhassid alleges that Nationstar improperly placed flood insurance
on her home and charged her for the premiums, which led to
increased financing costs on the mortgage. The district court
dismissed the complaint for failure to state a claim under either
the federal Fair Debt Collection Practices Act or Florida consumer
protection law.
In 2007, Alhassid took out a reverse mortgage with Seattle Mortgage
Company on her condominium unit in Aventura, Florida. Seattle
Mortgage Co. transferred the rights to Bank of America, and the
servicing rights were transferred to defendant Nationstar in 2012.
Under the terms of the mortgage at issue, Alhassid was responsible
for insuring the property against damage caused by flooding and for
paying flood and hazard insurance premiums. If Alhassid failed to
do so, the lender retained the right to "do and pay whatever is
necessary to protect the value of the Property and Lender's rights
in the Property, including payment of taxes, hazard insurance and
other items, including flood insurance. In other words, so long as
there was a condo association insurance policy covering flood
damage to the lender's satisfaction, Alhassid would not have to
take out her own policy and the loan servicer could not charge
flood insurance premiums to Alhassid's account.
Alhassid alleges that Nationstar, with knowledge that her condo
association had flood insurance covering the property, improperly
took out a lender-placed flood insurance policy on her property and
charged her for the premiums. A total of $5,200 in premiums was
added to the balance of her loan, which resulted in a corresponding
increase in monthly interest and monthly mortgage insurance premium
charges added to the balance. Alhassid claims that this conduct
violated the Fair Debt Collection Practices Act ("FDCPA"), the
Florida Consumer Collection Protection Act ("FCCPA"), and two
provisions of the Florida Deceptive and Unfair Trade Practices Act
("FDUTPA"). She also seeks to recover for unjust enrichment under
Florida law.
The district court granted Nationstar's motion to dismiss for
failure to state a claim upon which relief can be granted. The
court held that the monthly account statements sent by Nationstar
were not "debt collection letters," and therefore they could not
lead to a violation of the FDCPA or the FCCPA. It found that
Nationstar was in fact required by federal and Florida law to
purchase flood insurance for the property, so that conduct did not
violate the FDUTPA. It dismissed the unjust enrichment claim on
the ground that Alhassid's claims were squarely based on her
contract with Nationstar, i.e. the reverse mortgage, which
precludes an unjust enrichment claim under Florida law.
Alhassid asserts that Nationstar violated 15 U.S.C. Section 1692e's
prohibition on false, deceptive, or misleading representation or
means in connection with the collection of any debt in two ways:
first, Nationstar included the improper lender-placed flood
insurance premiums in her account statements; and second,
Nationstar made other communications representing that Alhassid was
required to purchase a flood insurance policy despite the condo
association's blanket policy insuring all units against flood and
hazard losses.
The Appellate Court agrees with the district court that Alhassid
fails to plausibly allege that the monthly account statements or
any other communications were made in connection with the
collection of a debt. It is clear that the monthly account
statement about Alhassid's reverse mortgage is not attempting to
collect on any debt. It was purely informational, containing no
explicit or implicit demand for payment, and therefore cannot be
the basis for an FDCPA claim.
In addition, and in any event, Alhassid has failed to plausibly
allege that Nationstar is a "debt collector" under the definition
of the FDCPA. The Court finds that complaint does not allege that
the debt was in default at the time it was obtained by Nationstar,
and so Alhassid has not sufficiently pleaded that Nationstar is a
debt collector under the FDCPA for the purposes of this claim.
This alternative ground also requires dismissal of the FDCPA
claim.
As for Alhassid's second claim, the FCCPA, the Court finds that
because Nationstar's communications were not made for the purposes
of collecting a debt, Alhassid has not plausibly alleged a
violation of the FCCPA. The FCCPA expressly provides that due
consideration and great weight will be given to the interpretations
of the Federal Trade Commission and the federal courts relating to
the federal FDCPA when construing the Act. One relevant difference
is that the FCCPA applies to any "person" collecting a consumer
debt; it is not limited to statutorily defined "debt collectors,"
like the FDCPA.
The Court also affirms the dismissal of Alhassid's claim for unjust
enrichment. Her claims, as the district court noted, arise out of
a relationship governed by a contract between the two parties. The
Court is bound by Florida court decisions on issues of Florida law;
in the case, there is undoubtedly an express contract concerning
the same subject matter as Alhassid's unjust enrichment claim, so
this claim must be dismissed.
Lastly, however, the Court is unpersuaded by the district court's
analysis of Alhassid's FDUTPA claims, at least at this stage in the
proceedings. The district court dismissed Alhassid's FDUTPA claims
on the ground that Nationstar's purchase of insurance "was required
by federal and Florida law." It disagrees. Taking these
allegations as true, as it must at this stage, the Court cannot
conclude that the purchase of force-placed insurance was required
by state or federal law. Nationstar knew or should have known that
Alhassid's home was covered by the condo association's flood
insurance policy. Because it cannot conclude that the purchase of
force-placed insurance is required by state or federal law when a
home is already covered, the Court reverses the district court's
dismissal of her FDUTPA claims on the ground.
Based on this, the Appellate Court affirmed in part, reversed in
part, and remanded.
A full-text copy of the Court's May 8, 2019 Order is available at
https://is.gd/hshWkk from Leagle.com.
Nancy M. Wallace -- mudell@bmulaw.com -- for Defendant-Appellee.
Christopher Stephen Carver -- christopher.carver@akerman.com -- for
Defendant-Appellee.
Maury L. Udell -- mudell@bmulaw.com -- for Plaintiff-Appellant.
Michael J. Larson, for Defendant-Appellee.
Henry H. Bolz, IV -- henry.bolz@akerman.com -- for
Defendant-Appellee.
NCL CORP: Continues to Defend Philips Class Suit in Florida
-----------------------------------------------------------
NCL Corporation Ltd. said in its Form 10-Q Report filed with the
Securities and Exchange Commission on May 10, 2019, for the
quarterly period ended March 31, 2019, that the company continues
to defend a class action suit initiated by Marta and Jerry
Phillips.
On September 21, 2018, a purported class-action lawsuit was filed
by Marta and Jerry Phillips and others against NCL Corporation Ltd.
in the United States District Court for the Southern District of
Florida relating to the marketing and sales of our Booksafe Travel
Protection Plan.
The plaintiffs purport to represent an alleged class of passengers
who purchased Booksafe Travel Protection Plans.
The complaint alleges that the Company concealed that it received
proceeds on the sale of the travel insurance portion of the plan.
The complaint seeks an unspecified amount of damages, fees and
costs.
NCL said, "We believe we have meritorious defenses to the claim and
that any liability which may arise as a result of this action will
not have a material impact on our consolidated financial
statements."
No further updates were provided in the Company's SEC report.
NCL Corporation Ltd. operates as a cruise line operator. The
company was founded in 2013 and is based in Miami, Florida. NCL
Corporation Ltd. operates as a subsidiary of Norwegian Cruise Line
Holdings Ltd.
NEW YORK: No Decision in Subway Elevator Class Action v. MTA
------------------------------------------------------------
CBS New York reports that the push to put elevators in every New
York City subway station hit a possible roadblock on May 21.
Several nonprofits organizations and individuals are behind a class
action lawsuit calling on the Metropolitan Transportation Authority
to add elevators to all stations.
"It's not just for people in wheelchairs. Yes, we're the most
visible ones who need it. But it's for older people with tired
legs, it's for parents with strollers," Sasha Blair-Goldensohn, of
the Upper West Side, told CBS2's Jenna DeAngelis. "We filed this
suit two years ago, and what's happened since then? Delay, delay,
delay."
Of the 472 subway stations in the city, the MTA says only 120 are
currently equipped with elevators.
A federal judge ruled back in March the agency must comply with
regulations under the Americans with Disabilities Act and install
elevators in all subway stations under renovation.
"We saw what happened with Malaysia Goodson -- she died doing
this," said Christine Serdjenian-Yearwood, founder of Up-Stand.
"It's a safety concern and we want it addressed."
Goodson died after falling down subway station stairs carrying her
1-year-old daughter in a stroller. The medical examiner determined
a medical episode contributed to her death, but her family believes
an elevators could have saved her.
Following the tragedy, the MTA board pledged to install 50
elevators in existing subway stations within the next five years.
But advocates want action now.
"I challenge all of the MTA board members to spend a week or two on
a wheelchair, with a walker and with a cane," resident Alberto
Mercado said.
During the May 21 hearing on the MTA and city's motion to dismiss,
the judge said he believes there needs to be some action by the
agency, but no decision was made.
Both sides will be back in court on June 5 to re-argue the case.
The judge wants the issue resolved and hopes to do so then. [GN]
NOLAN ENTERPRISES: De Angelis Moves to Certify Class of Dancers
---------------------------------------------------------------
The Plaintiff in the lawsuit titled STEPHANIE DE ANGELIS,
Individually and on behalf of all others similarly situated v.
NOLAN ENTERPRISES, INC., d/b/a CENTERFOLD CLUB, Case No.
2:17-cv-00926-ALM-EPD (S.D. Ohio), asks the Court to:
(1) conditionally certify this case as a collective action
under 29 U.S.C. Section 216(b) with respect to a
collective class of:
All of Defendant's current and former dancers who have
worked at Defendant's club during the three years before
this Complaint was filed up to the present;
(2) order expedited discovery of the names, all known
addresses, phone numbers, email addresses, and dates of
employment of Collective Action Members employed during
the specified time period; and
(3) order issuance of notice to prospective Collective Action
Members via ordinary mail and e-mail.
Ms. De Angelis alleges that in violation of the basic protections
of the Fair Labor Standards Act, the Defendant utilizes a payroll
policy that wrongly misclassifies its dancers as independent
contractors in order to avoid paying them for all hours worked,
including overtime.[CC]
The Plaintiff is represented by:
Michael J. Boyle, Jr., Esq.
Matthew R. Wilson, Esq.
Courtney M. Werning, Esq.
MEYER WILSON CO., LPA
1320 Dublin Road, Suite 100
Columbus, OH 43215
Telephone: (614) 224-6000
Facsimile: (614) 224-6066
E-mail: mboyle@meyerwilson.com
mwilson@meyerwilson.com
cwerning@meyerwilson.com
- and -
Steven C. Babin, Jr., Esq.
BABIN LAW, LLC
1320 Dublin Road, Suite 100
Columbus, OH 43215
Telephone: (614) 224-6000
Facsimile: (614) 224-6066
E-mail: steven.babin@babinlaws.com
- and -
Lance Chapin, Esq.
CHAPIN LEGAL GROUP, LLC
580 South High Street, Suite 330
Columbus, OH 43215
Telephone: (614) 221-9100
Facsimile: (614) 221-9272
E-mail: lance.chapin@chapinlegal.com
NORTHROP GRUMMAN: Defends Expert Witness in 401(k) Fee Class Suit
-----------------------------------------------------------------
Jacklyn Wille, writing for Bloomberg News, reports that Northrop
Grumman Corp. defended the expert witness it tapped to testify in
support of its retirement plan fees, saying "no basis in law"
existed to disqualify her from the case.
The company is responding to a motion to disqualify attorney Marcia
Wagner from testifying on the grounds that one of Wagner's legal
partners previously worked for the law firm representing the
Northrop plan participants. [GN]
OBALON THERAPEUTICS: Bid to Dismiss Consolidated Class Suit Pending
-------------------------------------------------------------------
Obalon Therapeutics, Inc. said in its Form 10-Q Report filed with
the Securities and Exchange Commission on May 10, 2019, for the
quarterly period ended March 31, 2019, that the motion to dismiss
filed in the consolidated Hustig and Cook class action suits is
still pending.
The court initially scheduled a hearing for May 30, 2019 on the
motion to dismiss. In an order dated June 5, Judge Anthony J.
Battaglia held that the hearing date on Defendants' Motions to
Dismiss is continued to August 1, 2019 2:00 p.m.
On February 14 and 22, 2018, plaintiff stockholders filed class
action lawsuits against the Company and certain of its executive
officers in the United States District Court for the Southern
District of California (Hustig v. Obalon Therapeutics, Inc., et
al., Case No. 3:18-cv-00352-AJB-WVG, and Cook v. Obalon
Therapeutics, Inc. et al., Case No. 3:18-cv-00407-CAB-RBB).
On July 24, 2018, the court appointed Inter-Local Pension Fund
GCC/IBT as lead plaintiff. On October 5, 2018, plaintiffs filed an
amended complaint. The amended complaint alleges that the Company
and certain of its executive officers made false and misleading
statements and failed to disclose material adverse facts about its
business, operations, and prospects in violation of Sections 10(b)
(and Rule 10b-5 promulgated thereunder) and 20(a) of the Exchange
Act.
The amended complaint also alleges violations of Section 11 of the
Exchange Act arising out of the Company's initial public offering.
The plaintiffs seek damages, interest, costs, attorneys' fees, and
other unspecified equitable relief.
The underwriters from the company's initial public offering have
also been named as defendants in this case and we have certain
obligations under the underwriting agreement to indemnify them for
their costs and expenses incurred in connection with this
litigation.
The Company believes the complaint is without merit, and on
December 4, 2018, the Company moved to dismiss the amended
complaint.
Obalon Therapeutics, Inc., a vertically integrated medical device
company, focuses on developing and commercializing medical devices
to treat people who are obese and overweight. The company offers
the Obalon balloon system designed to provide weight loss in obese
patients. Obalon Therapeutics, Inc. was founded in 2008 and is
headquartered in Carlsbad, California.
OCULAR THERAPEUTIX: Wins Dismissal of DEXTENZA Suit
---------------------------------------------------
Ocular Therapeutix, Inc. said in its Form 10-Q Report filed with
the Securities and Exchange Commission on May 10, 2019, for the
quarterly period ended March 31, 2019, that the court has granted
defendants' motion to dismiss the consolidated class action suit
over the company's DEXTENZA product.
On July 7, 2017, a putative class action lawsuit was filed against
the company and certain of its current and former executive
officers in the United States District Court for the District of
New Jersey, captioned Thomas Gallagher v. Ocular Therapeutix, Inc,
et al., Case No. 2:17-cv-05011.
The complaint purports to be brought on behalf of shareholders who
purchased the company's common stock between May 5, 2017 and July
6, 2017.
The complaint generally alleges that we and certain of our current
and former officers violated Sections 10(b) and/or 20(a) of the
Securities Exchange Act of 1934, or the Exchange Act, and Rule
10b-5 promulgated thereunder by making allegedly false and/or
misleading statements concerning the Form 483 issued by the FDA
related to DEXTENZA and the company's manufacturing operations for
DEXTENZA.
The complaint seeks unspecified damages, attorneys' fees, and other
costs.
On July 14, 2017, an amended complaint was filed; the amended
complaint purports to be brought on behalf of shareholders who
purchased our common stock between May 5, 2017 and July 11, 2017,
and otherwise includes allegations similar to those made in the
original complaint.
On July 12, 2017, a second putative class action lawsuit was filed
against the company and certain of its current and former executive
officers in the United States District Court for the District of
New Jersey, captioned Dylan Caraker v. Ocular Therapeutix, Inc., et
al., Case No. 2:17-cv-05095.
The complaint purports to be brought on behalf of shareholders who
purchased the company's common stock between May 5, 2017 and July
6, 2017. The complaint includes allegations similar to those made
in the Gallagher complaint and seeks similar relief.
On August 3, 2017, a third putative class action lawsuit was filed
against the company and certain of its current and former executive
officers in the United States District Court for the District of
New Jersey, captioned Shawna Kim v. Ocular Therapeutix, Inc., et
al., Case No. 2:17-cv-05704. The complaint purports to be brought
on behalf of shareholders who purchased the company's common stock
between March 10, 2016 and July 11, 2017. The complaint includes
allegations similar to those made in the Gallagher complaint and
seeks similar relief.
On October 27, 2017, a magistrate judge for the United States
District Court for the District of New Jersey granted the
defendants' motion to transfer the above-referenced Gallagher,
Caraker, and Kim litigations to the United States District Court
for the District of Massachusetts. These matters were assigned the
following docket numbers in the District of Massachusetts:
1:17-cv-12288 (Gallagher), 1:17-cv-12146 (Caraker), and
1:17-cv-12286 (Kim).
On March 9, 2018, the court consolidated the three actions and
appointed co-lead plaintiffs and co-lead counsel for the
consolidated action. On May 7, 2018, co-lead plaintiffs filed a
consolidated amended class action complaint.
The amended complaint makes allegations similar to those in the
original complaints, against the same defendants, and seeks similar
relief on behalf of shareholders who purchased our common stock
between March 10, 2016 and July 11, 2017. The amended complaint
generally alleges that defendants violated Sections 10(b) and/or
20(a) of the Exchange Act and Rule 10b-5 promulgated thereunder.
On July 6, 2018, defendants filed a motion to dismiss the
consolidated amended complaint. Plaintiffs' filed an opposition to
the motion to dismiss on September 4, 2018, and defendants filed a
reply on October 4, 2018. The court held oral argument on the
motion to dismiss on February 6, 2019. By order dated April 30,
2019, the court granted defendants' motion to dismiss.
Ocular Therapeutix, Inc., a biopharmaceutical company, focuses on
the formulation, development, and commercialization of therapies
for diseases and conditions of the eye using its bioresorbable
hydrogel platform technology. Ocular Therapeutix, Inc. was founded
in 2006 and is headquartered in Bedford, Massachusetts.
ORANGE CORROSION: Hernandez Seeks Unpaid Wages & Benefits
---------------------------------------------------------
JAMES HERNANDEZ, individually and on behalf of all others similarly
situated, the Plaintiff, vs. ORANGE CORROSION SERVICES, INC., a
California corporation; and DOES 1 through 20, inclusive, the
Defendants, Case No. 30-2019-01071977-CU-OE-CXC (Cal. Super., May
24, 2019), seeks monetary relief against Defendants to recover
unpaid wages and benefits, interest, attorneys' fees, costs and
expenses, and penalties pursuant to the California Labor Code.
The Plaintiff alleges that Defendants engaged in a systematic
pattern of wage and hour violations under the California Labor Code
and Industrial Welfare Commission Wage Orders, all of which
contribute to Defendants' deliberate unfair competition.
The Plaintiff alleges that Defendants have increased their profits
by violating state wage and hour laws by, among other things:
failing to pay all wages (including minimum wages and overtime
wages); failing to provide lawful meal periods or compensation in
lieu thereof; failing to authorize or permit lawful rest breaks or
provide compensation in lieu thereof; failing to provide accurate
itemized wage statements; failing to pay all wages due upon
separation of employment; and failing to reimburse all business
expenses incurred by the employee in direct consequence of the
discharge of his or her duties.
Defendants provide construction maintenance services throughout
California, including Orange County.[BN]
Attorneys for James Hernandez, individually and on behalf of all
others similarly situated:
Samuel A. Wong, Esq.
Kashif Haque, Esq.
Jessica L. Campbell, Esq.
Fawn F. Bekam, Esq.
AEGIS LAW FIRM, PC
9811 Irvine Center Drive, Suite 100
Irvine, CA 92618
Telephone: (949) 379-6250
Facsimile: (949) 379-6251
PATERSON CAR EMPORIUM: Vidal Suit to Recover Unpaid Overtime
------------------------------------------------------------
Alfonso Vidal, individually and on behalf of all others similarly
situated, Plaintiff, v. Paterson Car Emporium LLC and Efi Klietman,
Defendants, Case No. 19-cv-12711 (D. N.J., May 20, 2019), seeks to
recover overtime wages due, liquidated damages, and all reasonable
attorneys' fees pursuant to the Fair Labor Standards Act of 1938,
the New Jersey Wage and Hour Law and the New Jersey Wage Payment
Act.
Paterson employed Vidal as a mechanic and assemblyman from in or
around March 2016 until on or around March 7, 2019, assembling and
disassembling cars, repairing cars at the Defendants' workshop. He
claims to have worked in excess of 40 hours per week without being
paid overtime premiums. [BN]
Plaintiff is represented by:
Nicole Grunfeld, Esq.
KATZ MELINGER PLLC
280 Madison Avenue, Suite 600
New York, NY 10016
Tel: (212) 460-0047
Email: ndgrunfeld@katzmelinger.com
PENNSYLVANIA: Inmate Appeals to State Supreme Court
---------------------------------------------------
In a class action lawsuit, Daryl Cook, and Those Similarly Situated
Inmates, the Petitioner v. Executive Deputy Secretary of PA Dept.
of Corrections, the Respondent, Case No. 38WM2019, the Petitioner
filed a petition on May 24, 2019, for Leave to Appeal Nunc Pro Tunc
Supreme Court of Pennsylvania.[BN]
The Petitioner appears pro se.
Attorneys for Executive Deputy Secretary of PA Dept. of
Corrections:
Theron Richard Perez, Esq.
Debra S. Rand, Esq.
PENNSYLVANIA DEPARTMENT OF CORRECTIONS
PA Dept of Corrections Occ
1920 Technology Pkwy
Mechanicsburg, PA 17050-8507
Telephone: (717) 728-2574
PHEAA: Love and Smith Sue over Student Loans in N.D. Georgia
------------------------------------------------------------
A class action lawsuit has been filed against Pennsylvania Higher
Education Assistance Agency. The case is captioned as Amanda Love
and Wingo Smith, Individually and on behalf of all others similarly
situated, the Plaintiff, vs. Pennsylvania Higher Education
Assistance Agency doing business as: FedLoans Servicing, Inc., the
Defendant, Case No. 1:19-cv-02387-MHC (N.D. Ga., May 24, 2019).
The suit alleges violation over student loans. The case is
assigned to the Hon. Judge Mark H. Cohen.
The Pennsylvania Higher Education Assistance Agency headquartered
in Harrisburg, Pennsylvania, with regional offices throughout the
state, is the quasi-governmental agency that administers several
State higher education student financial aid programs. Created in
1963 by the Pennsylvania General Assembly.[BN]
Attorneys for the Plaintiffs:
Christopher Neil Armor, Esq.
ARMOR LAW, LLC
P.O. Box 451328
Atlanta, GA 31145
Telephone: (470) 990-2568
Facsimile: (404) 592-6102
E-mail: chris.armor@armorlaw.com
- and -
James W. Hurt , Jr., Esq.
HURT STOLZ, P.C.
1551 Jennings Mill Road, Suite 3100-B
Watkinsville, GA 30677
Telephone: (706) 395-2750
Facsimile: (866) 766-9245
E-mail: jhurt@hurtstolz.com
Attorneys for the Defendant:
Aliza R. Karetnick, Esq.
DUANE MORRIS-PA
30 South 17th Street, 5th Floor
Philadelphia, PA 19103-4196
Telephone: (215) 979-1231
- and -
Sarah Tope Reise, Esq.
BALLARD SPAHR-ATL
999 Peachtree Street, Suite 1000
Atlanta, GA 30309-3915
Telephone: (678) 420-9300
Facsimile: (678) 420-9301
E-mail: reises@ballardspahr.com
POLARITYTE INC: Consolidated Securities Class Suit Ongoing in Utah
------------------------------------------------------------------
PolarityTE, Inc. said in its Form 10-Q Report filed with the
Securities and Exchange Commission on May 10, 2019, for the
quarterly period ended March 31, 2019, that the company continues
to defend a consolidated class action suit in Utah entitled, In re
PolarityTE, Inc. Securities Litigation.
On June 26, 2018, a class action complaint alleging violations of
the Federal securities laws was filed in the United States District
Court, District of Utah, by Jose Moreno against the Company and two
directors of the Company, Case No. 2:18-cv-00510-JNP (the "Moreno
Complaint").
On July 6, 2018, a similar complaint was filed in the same court
against the same defendants by Yedid Lawi, Case No.
2:18-cv-00541-PMW (the "Lawi Complaint").
Both the Moreno Complaint and Lawi Complaint allege that the
defendants made or were responsible for, disseminating information
to the public through reports filed with the Securities and
Exchange Commission and other channels that contained material
misstatements or omissions in violation of Sections 10 and 20(a) of
the Exchange Act and Rule 10b-5 adopted thereunder.
Specifically, both complaints allege that the defendants
misrepresented the status of one of the Company's patent
applications while touting the unique nature of the Company's
technology and its effectiveness. Plaintiffs are seeking damages
suffered by them and the class consisting of the persons who
acquired the publicly-traded securities of the Company between
March 31, 2017, and June 22, 2018.
Plaintiffs have filed motions to consolidate and for appointment as
lead plaintiff. On November 28, 2018, the Court consolidated the
Moreno and Lawi cases under the caption In re PolarityTE, Inc.
Securities Litigation (the Consolidated Securities Litigation'),
and requested the appointment of the plaintiff in Lawi as the lead
plaintiff.
On January 16, 2019, the Court granted the motion of Yedid Lawi for
appointment as lead plaintiff, and on February 1, 2019, the Court
granted the lead plaintiff's motion for approval of lead counsel
and liaison counsel. The Court ordered that the lead plaintiff file
and serve a consolidated complaint no later than 60 days after
February 1, 2019, the defendants shall have 60 days after filing
and service of the consolidated complaint to answer or otherwise
respond, and the lead plaintiff must file a motion for class
certification within 90 days of service of the consolidated
complaint.
The Lead Plaintiff filed a consolidated complaint on April 2, 2019,
and asserted essentially the same violations of Federal securities
laws recited in the original complaints.
The Company believes the allegations in the consolidated complaint
are without merit, and intends to defend the litigation,
vigorously. The Company expects its first response will be to file
a motion to dismiss the consolidated complaint.
PolarityTE said, "At this early stage of the proceedings the
Company is unable to make any prediction regarding the outcome of
the litigation."
PolarityTE, Inc., a biotechnology and regenerative biomaterials
company, focuses on discovering, designing, and developing a range
of regenerative tissue products and biomaterials for the fields of
medicine, biomedical engineering, and material sciences in the
United States. The company operates in two segments, Regenerative
Medicine and Contract Services. PolarityTE, Inc. is headquartered
in Salt Lake City, Utah.
PROSHARES TRUST II: Amended Consolidated Complaint Due June 21
--------------------------------------------------------------
ProShares Trust II said in its Form 10-Q Report filed with the
Securities and Exchange Commission on May 10, 2019, for the
quarterly period ended March 31, 2019, that the court in the case
entitled, In re ProShares Trust II Securities Litigation, has
directed the lead plaintiff to file an amended consolidated
complaint by June 21, 2019.
The Hon. Denise L Cote held in a Case Management Order dated April
29 that Defendants shall file an answer to the amended complaint or
a motion to dismiss the amended complaint by August 2, 2019. If a
motion to dismiss the amended complaint is filed, any amended
complaint must be filed by September 6, 2019. It is unlikely that
Lead Plaintiff will be granted any further opportunities to amend.
If Lead Plaintiff elects not to further amend, it shall file its
opposition to the motion to dismiss on or before September 6, 2019.
Defendants shall file their reply to the opposition(s) to the
motion to dismiss on or before September 27, 2019.
The ProShare Capital Management LLC (Sponsor) and the ProShares
Trust II (Trust) are named as defendants in the following purported
class action lawsuits filed in the United States District Court for
the Southern District of New York on the following dates: (i) on
January 29, 2019 and captioned Ford v. ProShares Trust II et al.;
(ii) on February 27, 2019 and captioned Bittner v. ProShares Trust
II, et al.; and (iii) on March 1, 2019 and captioned Mareno v.
ProShares Trust II, et al.
The allegations in the complaints are substantially the same,
namely that the defendants violated Sections 11 and 15 of the 1933
Act and Sections 10(b) and 20(a) and Rule 10b-5 of the 1934 Act by
issuing untrue statements of material fact and omitting material
facts in the prospectus for ProShares Short VIX Short-Term Futures
ETF, and allegedly failing to state other facts necessary to make
the statements made not misleading.
Certain Principals of the Sponsor and Officers of the Trust are
also defendants in the actions, along with a number of others.
On April 29, 2019, the Court entered an order consolidating the
three suits into a single action captioned In re ProShares Trust II
Securities Litigation, and requiring that the lead plaintiff file
an amended consolidated complaint by June 21, 2019.
Counsel for the Trust believes the complaints are without merit and
that the lawsuits will not adversely impact the operation of the
Trust, ProShares Short VIX Short-Term Futures ETF, or any of its
other Funds.
The Trust and the Sponsor intend to vigorously defend against these
lawsuits. The Trust and the Sponsor cannot predict the outcome of
these lawsuits.
ProShares said, "Accordingly, no loss contingency has been recorded
in the Statement of Financial Condition and the amount of loss, if
any, cannot be reasonably estimated at this time. ProShares Short
VIX Short-Term Futures ETF may incur expenses in defending against
such lawsuits."
ProShares Trust II (the "Trust") is a Delaware statutory trust
formed on October 9, 2007 and is currently organized into separate
series (each, a "Fund" and collectively, the "Funds").
PROSPECT CHARTERCARE: Court Approves $11.9MM Deal in ERISA Suit
---------------------------------------------------------------
The United States District Court for the District of Rhode Island
issued a Memorandum and Order granting Joint Motion for Settlement
Class Certification, Appointment of Class Counsel, and Preliminary
Settlement Approval in the case captioned STEPHEN DEL SESTO, AS
RECEIVER AND ADMINISTRATOR OF THE ST. JOSEPH HEALTH SERVICES OF
RHODE ISLAND RETIREMENT PLAN, ET AL. Plaintiffs, v. PROSPECT
CHARTERCARE, LLC, ET AL., Defendants. C.A. No. 18-328 WES. (D.
R.I).
Preliminary Approval Under Rule 23(e)
The Court concludes that preliminary approval is warranted here.
The proposed terms of the settlement are set forth in the Settling
Parties' settlement agreement (Settlement Agreement). The basic
terms of this proposal provide that the Settling Defendants will
make an initial lump sum payment of at least $11,150,000 to the
Receiver. RHW will also assign to the Receiver its interest in an
escrow account held by the Rhode Island Department of Labor and
Training with a current balance of $750,000. CCCB will transfer to
the Receiver its interest in non-settling defendant CharterCARE
Foundation as well as its membership interest in non-settling
defendant Prospect CharterCARE.
Certification of Class, Class Representatives, and Class Counsel
The Settling Parties also seek certification under Rule
23(b)(1)(B), which requires a demonstration that prosecuting
separate actions would risk creating adjudications with respect to
individual class members that would be dispositive of the interests
of the other members not parties to the individual adjudications or
would substantially impair or impede their ability to protect their
interests. The Court concludes that these criteria have been
satisfied.
First, there are 2,729 Plan participants, rendering joinder of all
members of the proposed settlement class impracticable.
Second, the issues raised by Plaintiffs' claims present issues of
law and fact common to the class. These include, but are not
limited to: (1) when and whether the Plan became subject to ERISA
(2) a determination of the Plan participants' rights and any
defendants' obligations under the Plan and whether any
participant's rights were violated by any defendant (3) whether any
defendant committed fraud, engaged in the fraudulent transfer of
assets, or participated in an unlawful civil conspiracy and (4)
whether any defendant violated the Hospital Conversions Act, R.I.
Gen. Laws § 23-17.14 et seq.
Third, the claims of the named plaintiffs arise from the same set
of events and allegations as those of the other proposed class
members. The defendants' conduct also allegedly affected the named
plaintiffs in the same manner as the proposed class members.
Consequently, the Court finds there is typicality among the
proposed class representatives' claims and the claims of the
proposed class.
Fourth, the proposed class representatives are aligned with the
proposed class members. There is no evidence that named plaintiffs
have any interests that conflict with those of other class members.
In addition, the retainer agreements for the proposed class counsel
sets forth each representative's duty to act fairly and in the best
interests of the class and provides that class counsel will not
advise or represent any client concerning any dispute about how to
allocate any aggregate settlement proceeds.
The Court thus concludes that the proposed representatives will
fairly and adequately protect the interests of the class.
Lastly, the Court recognizes that the proposed class counsel are
highly qualified and able to carry out their corresponding duties.
Among other things, counsel are experienced in complex litigation,
appear to have engaged in significant pre-suit investigation, and
presented the proposed settlement to the Rhode Island Superior
Court in related receivership proceedings to obtain that court's
required approval.
For these reasons, the Court preliminarily certifies, for the
purposes of this settlement only, the following class:
All participants of the St. Joseph Health Services of Rhode
Island Retirement Plan, including (1) all surviving former
employees of St. Joseph Health Services of Rhode Island Inc. who
are entitled to benefits under the Plan; and (2) all
representatives and beneficiaries of deceased former employees of
St. Joseph Health Services of Rhode Island Inc. who are entitled to
benefits under the Plan.
The Court also preliminarily appoints plaintiffs Gail J. Major,
Nancy Zompa, Ralph Bryden, Dorothy Willner, Caroll Short, Donna
Boutelle, and Eugenia Levesque as settlement class representatives
and preliminary appoints Wistow, Sheehan & Lovley, P.C. as class
counsel.
Notice to Potential Class Members
Rule 23(e)(1) requires that the Court "direct notice in a
reasonable manner to all class members who would be bound by the
proposal The Court has reviewed the Settling Parties' proposed
Notice of Class Action Partial Settlement (Class Notice), and
agrees with class counsel that it summarizes the proposed
settlement's terms and the rights of the recipients in sufficiently
plain, easily understood language.
The Court therefore finds that the form and content of the proposed
notice is reasonable and adequate.
Objections of Non-Settling Parties
In granting preliminary approval of the Settlement Agreement, the
Court makes no findings, and expressly declines to rule, on the
Non-Settling Parties' objections. The Court's preliminary approval
of the Settlement Agreement is without prejudice to the
Non-Settling Parties' rights to assert their objections at the time
of the final fairness hearing pursuant to the terms of this Order.
Final Approval Hearing and Related Procedures
The Court approves the proposed notice plan set forth in the
Settlement Agreement and its exhibits for giving notice to the
settlement class (i) directly, by first class mail, per the Class
Notice attached to the Settlement Agreement as Exhibit 1 and (ii)
by publishing the Joint Motion with all exhibits thereto, including
but not limited to the Settlement Agreement, on the website
maintained by the Receiver as more fully described in the
Settlement Agreement. The Court hereby directs the Settling
Parties, and specifically the Receiver, to complete all aspects of
the notice plan no later than July 1, 2019, in accordance with the
terms of the Settlement Agreement.
Members of the preliminarily-approved settlement class do not have
the right to exclude themselves or opt-out of the settlement.
Consequently, all settlement class members will be bound by all
determinations and judgments concerning the Settlement Agreement.
Settlement class members who wish to object to Settlement Agreement
or to Plaintiffs' Counsel's Motion for Award of Attorneys' Fees,
must do so by the August 30, 2019 (Objection Deadline) which is
sixty (60) calendar days after the deadline for notice to be sent
pursuant to this Order.
The Joint Motion for Settlement Class Certification, Appointment of
Class Counsel, and Preliminary Approval by Plaintiffs and
Defendants SJHSRI, RWH, and CCCB is granted.
A full-text copy of the District Court's June 6, 2019 Order is
available at https://tinyurl.com/y5d9t7ph from Leagle.com.
Stephen Del Sesto, as Receiver and Administrator of the St. Joseph
Health Services of Rhode Island Retirement Plan, Gail J. Major,
Nancy Zompa, Ralph Bryden, Dorothy Willner, Caroll Short, Donna
Boutelle & Eugenia Levesque, Plaintiffs, represented by Benjamin G.
Ledsham, Wistow, Sheehan & Loveley, PC, Stephen P. Sheehan, Wistow,
Sheehan & Loveley, PC & Max Wistow, Wistow Sheehan & Loveley, 61
Weybosset St, Providence, RI 02903
Prospect CharterCARE, LLC, Prospect CharterCare SJHSRI, LLC &
Prospect Chartercare RWMC, LLC, Defendants, represented by Joseph
V. Cavanagh, III, Blish & Cavanagh LLP, Joseph V. Cavanagh, Jr.,
Blish & Cavanagh, LLP, Commerce Center, 30 Exchange Terrace,
Providence, RI 02903-1765, William Mark Russo, Ferrucci Russo P.C.,
55 Pine Street, 4th Floor, Providence, RI 02903, Christopher Joseph
Fragomeni -- cfragomeni@shslawfirm.com -- SHECHTMAN HALPERIN
SAVAGE, LLP & Dean J. Wagner -- dwagner@shslawfirm.com -- Shechtman
Halperin Savage LLP.
CharterCARE Community Board, St. Joseph Health Services of Rhode
Island & Roger Williams Hospital, Defendants, represented by Robert
D. Fine -- rfine@crfllp.com -- Chace, Ruttenberg & Freedman, LLP &
Richard J. Land -- rland@crfllp.com -- Chace Ruttenberg & Freedman,
LLP.
PURDUE PHARMA: Opioid Suit Remanded to Mass. State Court
--------------------------------------------------------
The United States District Court for the District of Massachusetts
issued a Memorandum and Order granting Plaintiff's Motion to Remand
in the case captioned TOWN OF RANDOLPH, Plaintiff, v. PURDUE PHARMA
L.P. d/b/a PURDUE PHARMA (DELAWARE) LIMITED PARTNERSHIP, ET AL.,
Defendants. No. 19-cv-10813-ADB. (D. Mass.).
The Town of Randolph filed an action in Superior Court alleging a
variety of state law claims against Defendants, all related to the
prescribing of opioid medications. Defendants are corporate
entities and individuals involved in the manufacture and
distribution of opioid medications. The Complaint, in seven counts,
alleges public nuisance, common law fraud, negligent
misrepresentation, negligence, violations of Massachusetts General
Laws ch. 93A, Section 11 (Chapter 93A), unjust enrichment, and
civil conspiracy.
Defendant CVS Health Corporation (CVS) removed this action pursuant
to the Class Action Fairness Act (CAFA). The notice of removal
asserted that the action is removable under CAFA because the
lawsuit is essentially a class action lawsuit, litigation of this
case in federal court promotes CAFA's overall purpose, and CAFA's
statutory requirements are satisfied.
CVS contends that this case essentially is a class action despite
the fact that the Plaintiff has not alleged a putative class action
on the face of its Complaint. CVS interprets the Plaintiff to be
acting as a representative for a class of residents who were
allegedly harmed, either directly or indirectly, by the Defendants'
purported misconduct.
CVS supports its argument with caselaw holding that where a lawsuit
resembles a class action' by asserting claims both individually and
on behalf of others, CAFA removal has been found proper.
The Plaintiff responds that the instant action cannot qualify as a
class action under Section 1332(d) because the statute under which
the action was brought, Chapter 93A, is not a similar State
statute.
The Plaintiff further argues that it would not be possible for it
to bring a class action under Chapter 93A on behalf of the Town of
Randolph's residents because the injuries suffered by the Plaintiff
differ from the injuries suffered by its residents.
The only statutory claim in the Complaint, brought under Chapter
93A, alleges that certain of the Defendants made false, misleading,
and deceptive statements to prescribers, consumers, payors, and
Plaintiff, engaged in false, untrue, and misleading marketing with
the intent that the Town of Randolph and its residents would rely
on the false statements, and should have reasonably foreseen that
such reliance would result in the use of opioid prescriptions ...
that would cause death or severe harm to users and harm to the
Town.
The alleged damages are losses sustained by the Town of Randolph.
The Town of Randolph states in the Complaint that it brings this
action on its own behalf and as parens patriae in the public
interest on behalf of its residents.
By its terms, Chapter 93A, which targets unfair and deceptive acts
and practices, permits representative actions:
Any persons entitled to bring such action under ch. 93A,
Section 11 may, if the use or employment of the unfair method of
competition or the unfair or deceptive act or practice has caused
similar injury to numerous other persons similarly situated and if
the court finds in a preliminary hearing that he adequately and
fairly represents such other persons, bring the action on behalf of
himself and such other similarly injured and situated persons; the
court shall require that notice of such action be given to unnamed
petitioners in the most effective, practicable manner. Such action
shall not be dismissed, settled or compromised without the approval
of the court, and notice of any proposed dismissal, settlement or
compromise shall be given to all members of the class of
petitioners in such a manner as the court directs.
Because Chapter 93A clearly allows representative actions, or an
action brought by 1 or more representative persons as a class
action, the Court must determine whether it also is similar to Rule
23.
To certify a class action under Rule 23, a plaintiff must
demonstrate the following: that the class is so numerous that
joinder of all members is impracticable, that there are questions
of law or fact common to the class, that claims or defenses of the
representative parties are typical of the claims or defenses of the
class and that the representative parties will fairly and
adequately protect the interests of the class.
In addition, a plaintiff who meets these threshold requirements
must also demonstrate that lie or she seeks to represent one of the
three types of class actions delineated in Rule 23(b). The most
common class action type requires a court finding that the
questions of law or fact common to class members predominate over
any questions affecting only individual members, and that a class
action is superior to other available in methods for fairly and
efficiently adjudicating the controversy.
The question of whether Chapter 93A is similar to Rule 23 for
purposes of 28 U.S.C. Section 1332(d)(1)(B) has not been squarely
addressed by the First Circuit. Since CAFA was enacted other courts
in this district have been faced with remand motions in removed
cases involving Chapter 93A claims, but the issue presented has
typically concerned the amount-in-controversy requirement of CAFA.
Even if the Court were to conclude that the class action provisions
of Chapter 93A were sufficiently similar to Rule 23, the Plaintiff
has not attempted to invoke the class action provisions of Chapter
93A. This case is not a lawsuit that resembles a class action by
asserting claims both individually and on behalf of others. The
Complaint only claims losses suffered by Plaintiff and omits both
class-specific allegations and a definition of a proposed class.
The Plaintiff further evidences its intention not to proceed as a
representative action by bringing this action as parens patriae.
CVS correctly observes in its opposition brief that the doctrine of
parens patriae is not applicable to towns, like the Plaintiff,
which are political subdivisions of Massachusetts. CVS does not
challenge the Plaintiffs standing to bring this action in light of
the unavailability of parens patriae, but instead reasons that if
this action is not a parens patriae suit, then it must be a class
action. CVS's reasoning presents a false dichotomy and fails to
account for the possibility that the Plaintiff may bring a suit
under Chapter 93A to recover damage to itself without bringing a
class action.
This Court, squarely presented with the merits of removal under
CAFA, concludes that it lacks jurisdiction over this action and
that remand, rather than awaiting a decision on transfer from the
JPML, is the appropriate course of action as well as the most
efficient use of judicial resources.
Removal of this action was improper because the Court lacks
subject-matter jurisdiction over the claims presented. The
Plaintiff's motion to remand is, therefore, granted.
A full-text copy of the District Court's June 6, 2019 Memorandum
and Order is available at https://tinyurl.com/y6d4kzcw from
Leagle.com.
Town of Randolph, Plaintiff, represented by Judith S. Scolnick ,
Scott & Scott, LLP. The Chrysler Building 405 Lexington Avenue,
40th Floor, New York, NY 10174
CVS Health Corporation & CVS Pharmacy, Inc., Defendants,
represented by Conor B. O'Croinin -- cocroinin@zuckerman.com --
Zuckerman Spaeder, LLP, pro hac vice, Clint D. Watts --
CWATTS@MDMC-LAW.COM -- McElroy, Deutsch, Mulvaney & Carpenter, LLP
& Paul E. Dwyer, Jr. -- PDWYER@MDMC-LAW.COM -- McElroy, Deutsch,
Mulvaney & Carpenter, LLP.
Mallinckrodt plc & Mallinckrodt LLC, Defendants, represented by
Andrew O'Connor -- Andrew.O'Connor@ropesgray.com -- Ropes & Gray,
Brien T. O'Connor -- Brien.O'Connor@ropesgray.com -- Ropes & Gray &
Erin R. Macgowan -- Erin.Macgowan@ropesgray.com -- Ropes & Gray
LLP.
McKesson Corporation, Defendant, represented by John O. Mirick --
jmirick@mirickoconnell.com -- Mirick, O'Connell, DeMallie &
Lougee.
PURDUE PHARMA: Roofers Local 149 Files RICO Suit in N.D. Ohio
-------------------------------------------------------------
A class action lawsuit has been filed against Purdue Pharma L.P. et
al. The case is styled as ROOFERS LOCAL 149 SECURITY BENEFIT TRUST
FUND, On behalf of itself and all others similarly situated,
Plaintiff v. Purdue Pharma L.P., Purdue Pharma Inc., The Purdue
Frederick Company Inc., Endo Health Solutions Inc., Endo
Pharmaceuticals Inc., Par Pharmaceuticals Inc., Janssen
Pharmaceuticals Inc., Janssen Pharmaceutica Inc. n/k/a Janssen
Pharmaceuticals Inc., Noramco, Inc., Ortho-McNeil-Janssen
Pharmaceuticals, Inc. n/k/a Janssen Pharmaceuticals, Inc., Johnson
& Johnson, Teva Pharmaceutical Industries Ltd, Teva Pharmaceuticals
USA Inc., Cephalon Inc., Allergan PLC f/k/a Actavis PLC, Allergan
Finance LLC f/k/a Actavis Inc., f/k/a Watson Pharmaceuticals Inc.,
Watson Laboratories Inc., Actavis LLC, Actavis Pharms Inc. f/k/a
Watson Pharma, Inc., Insys Therapeutic Inc., Mallinckrodt, PLC,
Mallinckrodt, LLC, SPECGX LLC, Cardinal Health Inc., McKesson
Corporation, Amerisourcebergen Corporation, Health Mart Systems,
Inc., H. D. SMITH, LLC d/b/a HD SMITH, f/k/a H.D. SMITH WHOLESALE
DRUG CO., H. D. Smith Holdings, LLC, H. D. Smith Holding Company,
CVS Health Corporation, Walgreens Boots Alliance, Inc. a/k/a
Walgreen Co., WAL-MART INC. f/k/a WAL-MART STORES, INC., RiteAid
Corp., Defendants, Case No. 1:19-op-45428-DAP (N.D. Ohio, June 10,
2019).
The Plaintiff filed the case under the Racketeer Influenced and
Corrupt Organizations Act.
Purdue Pharma L.P. is a privately held pharmaceutical company owned
principally by parties and descendants of Mortimer and Raymond
Sackler. The company's branches include Purdue Pharma Inc., The
Purdue Frederick Company, Purdue Pharmaceutical Products L.P., and
Purdue Products L.P.[BN]
The Plaintiff appears pro se.
QUILL LINCOLNSHIRE: Faces Reid Suit in Southern Dist. of New York
-----------------------------------------------------------------
A class action lawsuit has been filed against Quill Lincolnshire,
Inc. The case is captioned as Valentin Reid, on behalf of himself
and all others similarly situated, the Plaintiff, vs. Quill
Lincolnshire, Inc., the Defendant, Case No. 1:19-cv-04820-DAB
(S.D.N.Y., May 23, 2019). The suit alleges Americans with
Disabilities Act violation. The case is assigned to the Hon. Judge
Deborah A. Batts.[BN]
Attorneys for the Plaintiff:
David Paul Force, Esq.
STEINSAKS LEGAL
66 Washington Place
East Rutherford, NJ 07073
Telephone: (201) 669-9480
E-mail: dforce@steinsakslegal.com
R.A. ROGERS: Challenger Sues over Debt Collection Practices
-----------------------------------------------------------
CHARLES CHALLENGER, individually and on behalf of all others
similarly situated, Plaintiff v. R.A. ROGERS, INC., Defendant, Case
No. 1:19-cv-00562-LY (W.D. Tex., May 31, 2019) seeks to stop the
Defendant's unfair and unconscionable means to collect a debt. The
case is assigned to Judge Lee Yeakel.
R.A. Rogers, Inc. is a full service collection agency, specializing
in credit unions, banks, medical, property management and
commercial collections. [BN]
The Plaintiff is represented by:
Yitzchak Zelman, Esq.
MARCUS & ZELMAN, LLC
701 Cookman Ave., Suite 300
Asbury Park, NJ 07712
Telephone: (732) 695-3282
Facsimile: (732) 298-6256
E-mail: yzelman@marcuszelman.com
REWALK ROBOTICS: Pierce Atwood Discusses Denial of Bid to Amend
---------------------------------------------------------------
Melanie A. Conroy, Esq. -- mconroy@pierceatwood.com -- of Pierce
Atwood LLP, in an article for The National Law Review, reports that
on May 16, 2019, the District of Massachusetts denied a lead
plaintiff's motion to amend a complaint that sought to overcome
standing deficiencies of the original class representative by
adding a new named plaintiff. The Court dismissed the putative
class action without prejudice, holding that if a class action has
only one representative, and that party does not have standing, the
Court lacks jurisdiction over the case and cannot permit the lead
plaintiff substitution.
In Yan v. ReWalk Robotics, Ltd., lead plaintiff Wang Yan brought a
putative class action for alleged violations of the Securities Act
of 1933 and the Exchange Act of 1934 in connection with the
company's 2014 initial public offering. In a class action complaint
filed in 2017, Yan claimed that ReWalk concealed material
information in its IPO documents concerning a failure to comply
with FDA regulations and continued to make materially false
statements after the IPO. In August 2018, the Court granted the
defendants' motion to dismiss all Securities Act claims for failure
to plead a false or misleading statement and dismissed all Exchange
Act claims because Yan lacked standing based on his dates of share
purchase, which were limited to the time of the IPO. Dismissal was
granted without prejudice so that Yan could make a supplemental
pleading on the standing issue or seek a substitute lead plaintiff.
Yan moved in September 2018 to amend the complaint to add another
representative as named plaintiff.
Relying on First Circuit authority, the Court observed that
"standing is a threshold question in every case." Then, citing
Second, Third, and Fifth Circuit decisions, the Court explained
that it lacks Article III jurisdiction over a class action if the
only named class representative does not have standing to bring the
putative class claims. Under such circumstances, there can be no
opportunity to substitute a class representative in the absence of
a live case or controversy. In drawing a bright line that appears
to be previously unmarked by the First Circuit, the Court noted:
"no court appears to have held that a plaintiff in a class action
who does not have standing can simply move to amend the complaint
to add someone who does."
Yan argued that standing issues could be resolved through the
recognized right of the lead plaintiff to amend a complaint to
include additional named plaintiffs. The Court distinguished the
cited cases, reasoning that those circumstances were limited to
Rule 23 typicality and adequacy concerns, and not Article III
standing. The Court explained: "Article III standing is not the
same as Rule 23 typicality and adequacy." The difference is
critical because "the named plaintiff or class representative in a
class action must have Article III standing." For that reason, the
Court held that Yan's lack of standing, in this case, was "fatal to
the putative class action and cannot be cured by amendment." [GN]
RICHFIELD HOSPITAL: Faces Knapp et al. Suit in Onondaga, NY Court
-----------------------------------------------------------------
A class action lawsuit has been filed against Richfield Hospital
Inc. The case is captioned as MARINA KNAPP; and LARYSA KYLYMAR,
individually and on behalf of all others similarly situated,
Plaintiff v. RICHFIELD HOSPITAL INC.; RICHFIELD SYRACUSE HOTEL
PARTNERS LLC; TJM PROPERTIES, INC.; TJM HOTELS AND RESORTS, LLC;
TJM PROPERTY MANAGEMENT INC.; TJM SYRACUSE, LLC; and TERENCE
MCCARTHY, Defendants, Case No. 2904938/2019 (N.Y. Sup., Onondaga
County, May 31, 2019). The case is assigned to Hon. Anthony J.
Paris.
Richfield Syracuse Hotel Partners, LLC operates in the hotel
investment industry. The company was incorporated in 2010 and is
headquartered in Syracuse, New York. [BN]
The Plaintiffs are represented by:
Jessica Lukasiewicz, Esq.
THOMAS & SOLOMON LLP
693 East Avenue
Rochester, NY 14607
Telephone: (585) 272-0540
RIMROCK ENGINEERING: Homeowners File Class Suit Over Soil Issues
----------------------------------------------------------------
Rob Rogers, writing for Billings Gazette, reports that ground under
homes in the Copper Ridge subdivision is collapsing, and homeowners
there have sued the engineers, arguing their diagnoses of the soil
issues didn't go far enough to correct the problem.
On May 15, those homeowners asked a judge to grant their lawsuit
class action status in order to include other homeowners in the
subdivision. The motion was filed in Yellowstone County District
Court.
"As a result of the inadequate investigation, procedures,
recommendations and conclusions . . . many homes have suffered
damage as a result of the soils beneath their homes collapsing,"
according to the May 15 filing. "The value of every home and
undeveloped lot within the subdivision has been diminished."
Attorneys argue that 480 lots in the three Copper Ridge subdivision
are impacted and so the lawsuit would be better served with a class
action status.
"We filed the case to protect everyone," said David Legare, one of
the attorneys representing the group of homeowners. "We wanted to
try and find a global solution."
By expanding to a class action, all 480 lot owners would become
party to the lawsuit.
The lawsuit argues that in 2005 Terracon Consultants performed a
geotechnical engineering report for the proposed subdivision that
identified "hydro-collapsible" soil throughout the area and called
for individual geotechnical investigations to be performed for each
proposed structure to be built in the subdivision.
The suit specifically names two firms -- Rimrock Engineering and
Rawhide Engineering -- and 11 individuals, 10 of them John Does and
the other a geotechnical engineer named Robert Kukes, who works at
Rawhide.
The lawsuit alleges that the two firms and Kukes produced eight
geotechnical engineering reports over the next decade that
insufficiently addressed the problems identified in the Terracon
report and called for a uniform approach to all lots as opposed to
an individual approach.
Like a refrain though the lawsuit, the attorneys for the homeowners
repeatedly state that the engineers "were aware or should have been
aware of the findings" from the Terracon report.
Legare described the damage to the some of the homes as "avoidable
harm" and said that had the recommendations made in the Terracon
report been followed, even though they called for more expensive
remedies for building on collapsible soil, many of the homeowners
wouldn't be facing their current problems.
"We believe the source of the problem is Mr. Kukes' work," Legare
said.
A phone call to Kukes' office, along with a message left with an
associate there, were not returned by press time on May 15.
The homeowners are seeking punitive damages from Kukes and the
engineering firms, and a ruling to find them negligent in their
duties. [GN]
RINGCENTRAL INC: Hurley TCPA Class Action Ongoing
-------------------------------------------------
RingCentral, Inc. said in its Form 10-Q Report filed with the
Securities and Exchange Commission on May 10, 2019, for the
quarterly period ended March 31, 2019, that the company continues
to defend a class action suit initiated by Joann Hurley.
On November 17, 2017, Joann Hurley ("Hurley"), filed a second
amended complaint in an ongoing putative class action lawsuit
pending in the United States District Court for the Southern
District of West Virginia, adding the Company as a named defendant
and alleging that the Company and other defendants violated the
Telephone Consumer Protection Act (TCPA) and regulations
promulgated thereunder by allegedly using an automated telephone
dialing system to deliver prerecorded political messages to Hurley,
an incumbent running for reelection, and others. Hurley
alternatively alleged that the Company was vicariously liable for
the actions of the other co-defendants.
Hurley seeks statutory, compensatory, consequential, incidental and
punitive damages, costs, and attorneys' fees in connection with her
claims.
The Company was served with the second amended complaint on January
4, 2018. On March 23, 2018, the Company filed a motion to dismiss
the complaint for lack of standing and failure to sufficiently
state a claim on which relief may be granted. Hurley filed her
opposition brief on April 6, 2018, and the Company filed its reply
brief on April 13, 2018.
On October 4, 2018, the district court issued its memorandum and
opinion order granting in part and denying in part the Company's
motion to dismiss. The district court dismissed Hurley's vicarious
liability claim but allowed Hurley's TCPA claim to proceed. The
Company filed its answer and affirmatives defenses to the second
amended complaint on October 18, 2018.
RingCentral said, "It is too early to predict the outcome of this
lawsuit. Based on the information known to the Company as of the
date of this filing and the rules and regulations applicable to the
preparation of the Company's condensed consolidated financial
statements, it is not possible to provide an estimated amount of
any such loss or range of loss that may occur."
RingCentral, Inc. provides software-as-a-service solutions that
enable businesses to communicate, collaborate, and connect
primarily in North America. The company was incorporated in 1999
and is headquartered in Belmont, California.
RINGCENTRAL INC: Supply Pro Seeks Supreme Court Review
------------------------------------------------------
RingCentral, Inc. said in its Form 10-Q Report filed with the
Securities and Exchange Commission on May 10, 2019, for the
quarterly period ended March 31, 2019, that the petition for writ
of certiorari in Supply Pro Sorbents, LLC's class action suit is
pending.
On April 21, 2016, Supply Pro Sorbents, LLC ("SPS") filed a
putative class action against the Company in the United States
District Court for the Northern District of California, alleging
common law conversion and violations of the federal Telephone
Consumer Protection Act ("TCPA") arising from fax cover sheets used
by the Company's customers when sending facsimile transmissions
over the Company's system ("SPS Lawsuit").
SPS seeks statutory damages, costs, attorneys' fees and an
injunction in connection with its TCPA claim, and unspecified
damages and punitive damages in connection with its conversion
claim. On July 6, 2016, the Company filed a Petition for Expedited
Declaratory Ruling before the Federal Communications Commission
("FCC"), requesting that the FCC issue a ruling clarifying certain
portions of its regulations promulgated under TCPA at issue in the
SPS Lawsuit ("Petition"). The Petition remains pending.
On July 8, 2016, the Company filed a motion to dismiss the SPS
Lawsuit in its entirety, along with a collateral motion to dismiss
or stay the SPS Lawsuit pending a ruling by the FCC on the
Company's Petition. On October 7, 2016, the district court granted
the Company's motion to dismiss.
The district court concurrently dismissed the Company's motion to
dismiss or stay as moot. Plaintiff filed its amended complaint on
October 27, 2016, alleging essentially the same theories and
claims. On November 21, 2016, the Company filed a motion to dismiss
the amended complaint, along with a renewed motion to dismiss or
stay the case pending resolution of the FCC Petition.
On July 17, 2017, the district court granted the Company's motion
to dismiss with prejudice and concurrently dismissed the Company's
motion to dismiss or stay as moot.
SPS filed a notice of appeal to the Ninth Circuit Court of Appeals
on July 28, 2017. SPS's opening brief on appeal was filed on
December 20, 2017; asking that the dismissal be reversed and the
case be returned to the district court for the Lawsuit to proceed.
The Company's answering brief was filed on February 20, 2018;
asking that the dismissal be affirmed. SPS filed its reply brief on
April 12, 2018.
The Ninth Circuit Court of Appeals issued a decision on November
20, 2018, affirming the order of the district court and finding in
RingCentral's favor. On December 4, 2018, SPS filed a petition for
panel rehearing, which RingCentral responded to on January 9, 2019.
On January 28, 2019, the Ninth Circuit Court of Appeals denied SPS'
petition for rehearing. On April 29, 2019, SPS filed a petition in
the Supreme Court for a writ of certiorari. A response in
opposition from the Company is optional unless the Supreme Court
requests that the Company file a response.
RingCentral said, "The Company cannot predict whether the Supreme
Court will grant SPS's petition. It is too early to predict the
outcome of the SPS Lawsuit. Based on the information known to the
Company as of the date of this filing and the rules and regulations
applicable to the preparation of the Company's condensed
consolidated financial statements, it is not possible to provide an
estimated amount of any such loss or range of loss that may
occur."
RingCentral, Inc. provides software-as-a-service solutions that
enable businesses to communicate, collaborate, and connect
primarily in North America. The company was incorporated in 1999
and is headquartered in Belmont, California.
RIOT BLOCKCHAIN: To Seek Dismissal of Takata & Klapper Suit
-----------------------------------------------------------
Riot Blockchain, Inc. said in its Form 10-Q Report filed with the
Securities and Exchange Commission on May 10, 2019, for the
quarterly period ended March 31, 2019, that the company intends to
file a motion to dismiss the consolidated Takata and Klapper class
action suit.
On February 17, 2018, Creighton Takata filed an action asserting
putative class action claims on behalf of the Company's
shareholders in the United District Court for the District of New
Jersey, Takata v. Riot Blockchain Inc., et al., Case No. 3:
18-cv-02293.
The complaint asserts violations of federal securities laws under
Section 10(b) and Section 20(a) of the Securities Exchange Act of
1934 on behalf of a putative class of shareholders that purchased
stock from November 13, 2017 through February 15, 2018. The
complaint alleges that the Company and certain of its officers and
directors made, caused to be made, or failed to correct false
and/or misleading statements in press releases and public filings
regarding its business plan in connection with its cryptocurrency
business.
The complaint requests damages in unspecified amounts, costs and
fees of bringing the action, and other unspecified relief.
Two additional, nearly identical complaints were subsequently filed
by Richard Roys and Bruce Greenawalt in the United District States
Court for the Southern District of Florida (Roys v. Riot Blockchain
Inc., et al., Case No. 9:18-cv-80225) and the United States
District Court for the District of Colorado (Greenawalt v. Riot
Blockchain Inc., et al., Case No. 1:18-cv-00440), respectively.
On March 27, 2018, the court closed the Roys case for
administrative purposes. On April 2, 2018, Mr. Greenawalt filed a
notice of voluntary dismissal of his action, which the court
entered on the same date.
On April 18, 2018, Joseph J. Klapper, Jr., filed a complaint
against Riot Blockchain, Inc., and certain of its officers and
directors in the United District Court for the District of New
Jersey (Klapper v. Riot Blockchain Inc., et al., Case No. 3:
18-cv-8031).
The complaint contained substantially similar allegations and the
same claims as those filed by Mr. Takata, and requests damages in
unspecified amounts, costs and fees of bringing the action, and
other unspecified relief.
On November 6, 2018, the court in the Takata action issued an order
consolidating Takata with Klapper into a single putative class
action. The court also appointed Dr. Golovac as Lead Plaintiff and
Motely Rice as Lead Counsel of the consolidated class action.
Lead Plaintiff filed a consolidated complaint on January 15,
2019.Defendants filed motions to dismiss on March 18, 2019. Lead
Plaintiff was subsequently granted leave to file another amended
complaint on May 8, 2019.
Defendants intend to file a motion to dismiss in response, with
briefing expected to be completed on the motion to dismiss in late
June 2019.
Riot Blockchain said, "Subject to the outcome of the pending
motions, defendants intend to continue to vigorously contest Lead
Plaintiff's allegations. Because this litigation is still at this
early stage, we cannot reasonably estimate the likelihood of an
unfavorable outcome or the magnitude of such an outcome, if any."
Riot Blockchain, Inc. focuses on building, supporting, and
operating blockchain technologies, primarily through its
cryptocurrency mining operations and other developed businesses, as
well as joint ventures, acquisitions, and targeted investments in
the sector. The company was formerly known as Bioptix, Inc. and
changed its name to Riot Blockchain, Inc. in October 2017. Riot
Blockchain, Inc. was founded in 2000 and is based in Castle Rock,
Colorado.
ROADRUNNER TRANSPORT: Gomez Labor Suit Removed to C.D. Cal.
-----------------------------------------------------------
The case captioned Fernando Gomez, as an individual, and on behalf
of all similarly situated employees, Plaintiff, v. Roadrunner
Transportation LLC, Defendant, Case No. CGC-18-571755 (Cal. Super.,
December 3, 2019), was removed to the U.S. District Court for the
Central District of California on May 20, 2019, under Case No.
19-cv-02748.
Gomez seeks redress for Defendant's failure to provide meal
periods, rest periods, minimum wages, overtime, complete and
accurate wage statements; reimbursement of business-related
expenses and resulting from unfair business practices; waiting time
penalties for unpaid wages due upon termination; and for violation
of the California Labor Code, California Business and Professions
Code, including declaratory relief, damages, penalties, equitable
relief, costs and attorneys' fees.
Roadrunner is a provider of transportation and logistical services
and maintains and operates depot/service centers in San Francisco,
Los Angeles and Commerce, California.[BN]
Plaintiff is represented by:
Kevin Mahoney, Esq.
Alexander Perez, Esq.
Katherine J. Odenbreit, Esq.
MAHONEY LAW GROUP, APC
249 E. Ocean Blvd.,Ste. 814
Long Beach, CA 90802
Telephone: (562) 590-5550
Facsimile: (562) 590-8400
Email: kmahoney@mahoney-law.net
aperez@mahoney-law.net
kodenbreit@mahoney-law.net
Roadrunner is represented by:
Megan E. Ross, Esq.
SCOPELITIS GARVIN LIGHT HANSON & FEARY
1104 San Antonio St.
Austin, TX 78701
Tel: (626) 795-4700
Email: mross@scopelitis.com
ROSE ASSOCIATES: Olsen Files ADA Suit in E.D. New York
------------------------------------------------------
A class action lawsuit has been filed against Rose Associates, Inc.
The case is styled as Thomas J. Olsen, individually and on behalf
of all other persons similarly situated, Plaintiff v. Rose
Associates, Inc. doing business as: 2Cooper, Defendant, Case No.
1:19-cv-03431 (E.D. N.Y., June 10, 2019).
The Plaintiff filed the case under the Americans with Disabilities
Act.
Rose Associates, Inc. is the largest property management firm in
the New York City market that is solely focused on multi-family. It
develops and manages office towers, commercial retail centers,
mixed-use complexes, and high-rise residential buildings.[BN]
The Plaintiff is represented by:
Douglas Brian Lipsky, Esq.
Lipsky Lowe LLP
630 Third Avenue
New York, NY 10017-6705
Phone: (212) 392-4772
Fax: (212) 444-1030
Email: doug@lipskylowe.com
RUNNER SPORTS: Faces Reid Suit in Southern Dist. of New York
------------------------------------------------------------
A class action lawsuit has been filed against Runner Sports Retail,
Inc. The case is captioned as Valentin Reid, on behalf of himself
and all others similarly situated, the Plaintiff, vs. Runner Sports
Retail, Inc., the Defendant, Case No. 1:19-cv-04823-RA (S.D.N.Y.,
May 23, 2019). The suit alleges Americans with Disabilities Act
violation. The case is assigned to the Hon. Judge Ronnie
Abrams.[BN]
Attorneys for the Plaintiff:
David Paul Force, Esq.
STEINSAKS LEGAL
66 Washington Place
East Rutherford, NJ 07073
Telephone: (201) 669-9480
E-mail: dforce@steinsakslegal.com
SAN JOAQUIN GENERAL: Franklin Seeks Pay for Off-the-Clock Work
--------------------------------------------------------------
Isabelle Franklin, individually and on behalf of all others
similarly situated, Plaintiff, v. San Joaquin General Hospital
Foundation, Defendant, Case No. 19-cv-00907 (E.D. Cal., May 20,
2019), seeks redress for Defendant's failure to provide meal and
rest breaks, failure to provide itemized wage statements, interest
thereon at the statutory rate; reimbursement of business-related
expenses; actual damages; all wages due terminated employees; costs
of suit; prejudgment interest and such other and further relief
under the Fair Labor Standards Act, California labor laws and
applicable Industrial Welfare Commission Wage Orders.
Plaintiff is a former non-exempt, hourly employee who worked as a
nurse at San Joaquin General Hospital in French Camp, California
from approximately February to May of 2018. She claims overtime for
pre-shift and post shift duties, off-the-clock work and
compensation for missed rest periods. [BN]
Plaintiff is represented by:
David C. Leimbach, Esq.
Carolyn H. Cottrell, Esq.
Michelle S. Lim, Esq.
SCHNEIDER WALLACE COTTRELL KONECKY WOTKYNS LLP
2000 Powell Street, Ste. 1400
Emeryville, CA 94608
Tel: (415) 421-7100
Fax: (415) 421-7105
Email: ccottrell@schneiderwallace.com
dleimbach@schneiderwallace.com
mlim@schneiderwallace.com
SARBANAND FARMS: Court Denies Bid to Dismiss Rosas FLCA Suit
------------------------------------------------------------
The United States District Court for the Western District of
Washington, Seattle, issued an Order denying Defendant's Motion to
Dismiss in the case captioned BARBARO ROSAS and GUADALUPE TAPIA, as
individuals and on behalf of all other similarly situated persons,
Plaintiffs, v. SARBANAND FARMS LLC, et al., Defendants. Case No.
C18-0112-JCC. (W.D. Wash.).
This matter comes before the Court on Defendant CSI Visa Processing
S.C.'s (CSI) motion to dismiss for lack of personal jurisdiction.
The Plaintiffs bring this class action arising out of the
Defendants' recruitment, employment, and treatment of foreign H-2A
farm workers. The Plaintiffs allege that Defendant CSI violated the
Washington Farm Labor Contractors Act (FLCA) by failing to obtain
and carry a current farm labor contractor's license at all times
and exhibit it to Plaintiffs; failing to obtain a bond and disclose
the existence and amount of that bond to the Plaintiffs.
Motion to Dismiss Standard of Review
Claims against a defendant must be dismissed when a court lacks
personal jurisdiction. When a defendant seeks dismissal on this
ground, the plaintiff must show that the exercise of jurisdiction
is appropriate. In the absence of an evidentiary hearing, the
plaintiff need only make a prima facie showing of jurisdictional
facts; in assessing this showing, the Court must take any
uncontroverted allegations in the plaintiff's complaint as true and
resolve any conflicts between the facts in the documentary evidence
in the plaintiff's favor.
Personal Jurisdiction
When determining whether the exercise of personal jurisdiction over
a defendant is appropriate, federal courts apply the law of the
state in which they sit; in Washington, courts are authorized to
exercise jurisdiction over a non-resident defendant to the extent
permitted by the due process clause of the United States
Constitution. Thus, the only question for the Court is whether the
exercise of jurisdiction over Defendant CSI comports with the
limitations imposed by due process.
Due process permits a court to subject a defendant to judgment only
when the defendant has sufficient contacts with the sovereign such
that the maintenance of the suit does not offend traditional
notions of fair play and substantial justice.
General Jurisdiction
General jurisdiction is properly exercised when a party engages in
continuous and systematic general business contacts that
approximate physical presence in the forum state. Here, Defendant
CSI's contacts with Washington are insufficient to support an
exercise of general jurisdiction: it has no business offices or
exclusive agents in Washington, it pays no taxes in Washington, and
it is not registered to do business here. Further, Plaintiff does
not allege that the Court may properly exercise general
jurisdiction over Defendant CSI.
The Court finds that it does not have general personal jurisdiction
over Defendant CSI.
Specific Jurisdiction
Specific jurisdiction is properly exercised when a defendant has
purposefully availed itself of the privilege of conducting
activities within the forum State, thus invoking the benefits and
protections of its laws. The Ninth Circuit uses a three-prong test
to determine whether the exercise of specific jurisdiction is
appropriate:
1. The non-resident defendant must purposefully direct his
activities or consummate some transaction with the forum or
resident thereof; or perform some act by which he purposefully
avails himself of the privilege of conducting activities in the
forum, thereby invoking the benefits and protections of its laws
2. The claim must be one which arises out of or relates to the
defendant's forum-related activities; and
3. The exercise of jurisdiction must comport with fair play and
substantial justice, i.e. it must be reasonable.
Purposeful Availment
In cases sounding in contract or arising out of contractual
relations, the court typically inquires whether a defendant
purposefully availed itself of the privilege of conducting
activities or consummated a transaction in the forum,' focusing on
activities such as delivering goods or executing a contract.
Defendant CSI maintains that occasional meetings within the forum
state, such as its attendance and participation in wafla events, do
not create a substantial connection with Washington; however, this
is a misrepresentation of Defendant CSI's connections with WAFLA.
In 2018, Defendant CSI was a main sponsor of WAFLA. This ensured
Defendant CSI recognition on conference promotional materials and
emails; prominent signage and recognition throughout the
conference, including packet inserts, personalized signage, and
general sessions screens; a booth at the conference; future webinar
sponsorship; and a list of the conference attendees. Defendant CSI
also sponsored WAFLA's conferences in 2016 and 2017. This is
distinguishable from Picot, where the defendant traveled to
California at the request and expense of the plaintiffs and the
Ninth Circuit found that such contacts were merely "random,
fortuitous, or attenuated.
Thus, Defendant CSI had significant contacts with Washington's
market of growers through its regular sponsorship of WAFLA
conferences and supplied goods to the Washington market in the form
of H-2A visa workers, thus satisfying the purposeful availment
prong.
Arising Out of the Forum-Related Activity
Because the purposeful availment prong has been satisfied, the
Court must now assess whether Plaintiffs' claims against Defendant
CSI arise out of Defendant CSI's forum-related activity.
At issue is the contract between Defendant Sarbanand Farms and
Defendant CSI for the 2017 season. The Plaintiffs have claimed
that, while performing under this contract, Defendant CSI failed to
comply with the provisions of the Washington Farm Labor Contractors
Act. Thus, the Court must determine whether Plaintiffs' claims
against Defendant CSI would have arisen but for Defendant CSI's
aforementioned contacts with Washington.
Defendant CSI's contacts with Washington were substantial, as
particularly evidenced by its participation in WAFLA conferences.
Defendant CSI was a sponsor of WAFLA conferences from 2016 to 2018,
which allowed it to solicit attendees' business through
distributing promotional materials and having access to a list of
attendees. Through this availment of the Washington market,
Defendant CSI supplied H-2A visa workers to many Washington
agricultural entities. These included Growers, who used WAFLA as
an intermediary to obtain H-2A visa workers from Defendant CSI in
2015 and 2016. Following their experience with Defendant CSI,
facilitated by WAFLA, Growers decided to expand their use of the
H-2A visa program and work directly with Defendant CSI in obtaining
H-2A visa workers for the 2017 harvesting season.
As a result, Defendant Sarbanand Farms and Defendant CSI entered a
contract for the 2017 season, under which Defendant CSI would
recruit and process H-2A visa applicants to work for Defendant
Sarbanand Farms in Washington. And as discussed above, Defendant
CSI's performance under this contract was analogous to supplying
goods to the Washington market, as it enabled Mexican nationals to
work for Defendant Sarbanand Farms in Washington under H-2A visas.
Therefore, but for Defendant CSI's long-standing solicitation of
Washington agricultural entities' business and its prior work on
behalf of Growers, and but for the contract between Defendant CSI
and Defendant Sarbanand governing Defendant CSI's recruitment and
supplying of workers on behalf of Defendant Sarbanand Farms,
Plaintiffs' claims against Defendant CSI would not have arisen.
Thus, Plaintiffs' claims arose out of Defendant CSI's contacts with
Washington, and the second prong of the purposeful availment test
is satisfied.
Fair Play and Substantial Justice
As Plaintiffs have satisfied the first two prongs of the purposeful
availment test, the burden shifts to Defendant CSI to "to `present
a compelling case' that the exercise of jurisdiction would not be
reasonable.
To evaluate whether the exercise of jurisdiction would be
reasonable, the Court looks to:
(1) the extent of the defendant['s] purposeful interjection into
the forum state's affairs (2) the burden on the defendant of
defending in the forum (3) the extent of conflict with the
sovereignty of the defendant's state (4) the forum state's interest
in adjudicating the dispute (5) the most efficient judicial
resolution of the controversy (6) the importance of the forum to
the plaintiff's interest in convenient and effective relief and(7)
the existence of an alternative forum.
Defendant CSI offers three reasons why the Court's exercise of
jurisdiction over it would be unreasonable.
First, Defendant CSI contends that it never interjected itself into
Washington's affairs, as its processing of visa applications
occurred solely in Mexico and it did not play a role in
transporting H-2A visa workers to Washington.
This is unavailing. Defendant CSI had substantial contacts with the
Washington market through its interactions with WAFLA, and the
contract between it and Defendant Sarbanand Farms arose out of
those contacts and Defendant CSI's existing relationship with
Growers.
Second, Defendant CSI asserts that the Court's exercise of
jurisdiction would be unreasonable because Defendant CSI could not
control where H-2A visa workers initially sent to work for
Defendant Munger Bros. in California would be sent after the
conclusion of their contract. But the contract at issue is that
between Defendant CSI and Defendant Sarbanand Farms, under which
Defendant CSI supplied H-2A visa workers directly for work in
Washington.
Thus, the fact that H-2A visa workers initially sent to California
were subsequently transferred to Washington without input from
Defendant CSI dose not render the Court's exercise of jurisdiction
unreasonable.
Third, Defendant CSI argues that the Court's exercise of
jurisdiction would be unreasonable because of the burden placed on
Defendant CSI, a foreign corporation, in litigating a case in
Washington that does not relate to its direct activities. This
burden is insufficient to outweigh Defendant CSI's long-running
availment of the Washington market and its role in recruiting the
H-2A visa workers sent directly to Washington.
Therefore, Defendant CSI has not presented a compelling case that
the Court's exercise of jurisdiction over it is unreasonable and
has not carried its burden under the third prong of the purposeful
availment test.
Defendant CSI's motion to dismiss for lack of personal jurisdiction
is denied.
A full-text copy of the District Court's June 6, 2019 Order is
available at https://tinyurl.com/y57tplms from Leagle.com.
Barbaro Rosas & Guadalupe Tapia, Plaintiffs, represented by Adam J.
Berger -- berger@sgb-law.com -- SCHROETER GOLDMARK & BENDER,
Joachim Morrison, COLUMBIA LEGAL SERVICES, Andrea L. Schmitt,
COLUMBIA LEGAL SERVICES, Bonnie A. Linville, COLUMBIA LEGAL
SERVICES, Lindsay Halm, SCHROETER GOLDMARK & BENDER, Lori Isley,
COLUMBIA LEGAL SERVICES & Tony Gonzalez, COLUMBIA LEGAL SERVICES,
201200 Palouse StWenatchee, WA 98801- 2235
Sarbanand Farms LLC, Munger Bros LLC & Nidia Perez, Defendants,
represented by Theodore William Hoppe -- tad@hoppe-law.com -- HOPPE
LAW GROUP, pro hac vice, Christopher E. Hawk -- chawk@grsm.com --
GORDON REES SCULLY MANSUKHANI & Derek Allan Bishop --
dbishop@grsm.com -- GORDON REES SCULLY MANSUKHANI LLP.
CSI Visa Processing, S.C., Defendant, represented by Adam S.
Belzberg -- adam.belzberg@stoel.com -- STOEL RIVES & Christopher T.
Wall -- christopher.wall@stoel.com -- STOEL RIVES.
Washington State Employment Security Department, Interested Party,
represented by Mary Maureen Tennyson, ATTORNEY GENERAL'S OFFICE.
SCI DIRECT: $1.65-Mil. Romano Suit Settlement Wins Prelim. Approval
-------------------------------------------------------------------
The Hon. Otis D. Wright, II, grants the Plaintiffs' Motion for
Preliminary Approval of Class Action Settlement filed in the
lawsuit styled NICOLE ROMANO, JONATHAN BONO, and JAMES DOYLE,
individually and on behalf of all others similarly situated v. SCI
DIRECT, INC., TRIDENT SOCIETY INC., NEPTUNE SOCIETY OF AMERICA,
INC., and NEPTUNE MANAGEMENT CORP., Case No. 2:17-cv-03537-ODW-JEM
(C.D. Cal.).
The final approval hearing will be held on November 18, 2019, at
1:30 p.m.
The parties reached a settlement on behalf of the class. The
Settlement Agreement defines the proposed class as:
"All individuals who contracted with or provided services to
SCI Direct, as an independent sales representative in
California from May 18, 2014 to February 1, 2019 (the 'Class
Period')."
The parties estimate that there are approximately 230 potential
members of the class ("Class Size").
In full settlement of the claims asserted in this lawsuit, the
Defendants agree to pay $1,650,000 (the "Total Settlement Amount").
The Total Settlement Amount includes PAGA penalties, the incentive
award, and the fees and costs of the Settlement Administrator. Any
amount not used by the Settlement Administrator will be added to
the amount distributable to the class members.
After deducting the payments from the Total Settlement Amount, the
estimated total distributable amount to the class members is
$1,490,000. After 120 days, any uncashed checks will revert to
Defendants, with the exception of the settlement amount related to
the PAGA penalties. The settlement amount related to the PAGA
penalties will be delivered to California Controller's Unclaimed
Funds in the name of the class member.
The Settlement Agreement authorizes the Plaintiffs' counsel to
petition the Court for approval of attorneys' fees in an amount not
to exceed $825,000 and costs not exceeding $25,000. This amount is
separate and will not be deducted from the Total Settlement Amount.
The Settlement Agreement provides that the Plaintiffs' counsel
will petition the Court for approval of incentive awards of $5000
for Plaintiff James Doyle, $10,000 for
Plaintiff Jonathan Bono, and $15,000 for Plaintiff Nicole Romano.
The Settlement Agreement requires payments to the California Labor
and Workforce Development Agency ("LWDA") pursuant to PAGA. The
parties agreed to allocate $160,000 of the Total Settlement Amount
for PAGA penalties, $120,000 (75% of $160,000) of which shall be
paid to the LWDA, with the remaining $40,000 to be distributed to
the settling class members on a pro rata basis.[CC]
SERCO INC: Court Conditionally Certifies Class in Sandoval Suit
---------------------------------------------------------------
In the case, MAR'BELLA SANDOVAL, individually and on behalf of all
others similarly situated, Plaintiff, v. SERCO, INC., Defendant,
Case No. 4:18-CV-01562 JAR (E.D. Mo.), Judge John A. Ross of the
U.S. District Court for the Eastern District of Missouri, Eastern
Division, granted in part and denied in part (i) the Plaintiff's
Opposed Motion for Conditional Certification and Notice to Putative
Class Members; and (ii) the Defendant's Motion for Denial of
Plaintiff's Motion for Court-Facilitated Notice, Accounting of
Plaintiff's Communications with Putative Class Members, and
Sanctions.
The action is over overtime pay under the Fair Labor Standards Act
("FLSA"), and the Missouri Minimum Wage Law ("MMWL"). Serco is a
multinational services company headquartered in Virginia that
serves primarily federal, state, and local governments. It employs
numerous customer service or call-center employees across the
nation who are responsible for speaking with and assisting
customers of Serco's clients. The Plaintiff is a former Serco
hourly call-center employee.
The Plaintiff brings Count I of her complaint as an "opt-in"
collective action under the FLSA, on behalf of all hourly
call-center employees who were employed by Serco, Inc., anywhere in
the United States, at any time from Sept. 17, 2015 through the
final disposition of the matter. Count II is brought under the
MMWL as a Federal Rule of Civil Procedure 23 class action on behalf
of all hourly call-center employees who were employed by Serco,
Inc., in Missouri, at any time from Sept. 17, 2016 through the
final disposition of the matter.
She alleges that she and the putative class members are required to
start and log-in to their computers, open and log-in to multiple
different Serco computer programs, and ensure that each program is
running correctly -- all of which can take up to 20 minutes --
before they are able to take their first phone call, which comes in
as soon as their official shift starts. She further alleges that
Serco frequently required her and the putative class members to
assist customers after the end of their scheduled shifts, and to
remain at their computers during the lengthy shut-down process,
activities which were performed after the employees' scheduled
shifts had concluded. As a result of Serco's policy and practice
of requiring its employees to perform these start-up and shut-down
tasks off-the-clock and without pay before their scheduled shifts
began, and after their scheduled shifts ended, the Plaintiff
alleges that she and the putative class members were not
compensated for all hours worked.
On Nov. 21, 2018, the Plaintiff filed her Motion for Conditional
Certification and Notice to Putative Class Members. In her motion,
she requests the Court conditionally certify a collective action
and authorize notice to the following class: All hourly call-center
employees who worked for Serco, Inc. in the Affordable Care Act
Division, anywhere in the United States, at any time in the
preceding three years through the final disposition of the matter.
Serco opposes certification on the grounds that the Plaintiff has
failed to (1) clearly define the group of individuals she purports
to represent; and (2) establish she is "similarly situated" to the
individuals she purports to represent. In further opposition, it
argues that conditional certification and court-facilitated notice
would be improper because the Plaintiff has already, without the
Court's authorization, distributed notice before filing her motion.
Serco notes that by the time it filed its answer to the Plaintiff's
complaint on Nov. 9, 2018, 273 consent to join forms had been filed
by the Plaintiff's counsel.
On March 14, 2019, Serco filed a motion for denial of
court-facilitated notice, accounting of the Plaintiff's
communications with the putative class, and sanctions, asserting
that her counsel has been unilaterally contacting unrepresented
individuals to solicit their participation in the case. According
to Serco, on Feb. 17, 2019, an attorney at the Plaintiff's
counsel's firm emailed the communication to an unknown number of
individuals.
One of the recipients of the communication posted it to her
Facebook page on Feb. 20, 2019. Serco argues the communication is
misleading, improper, and unethical, and a "perversion" of the
court-facilitated notice process.
Judge Ross finds that the Plaintiff has satisfied her minimal
burden of demonstrating that she and members of the proposed class
were subject to a company-wide policy improperly requiring them to
perform work off-the-clock and without pay and are thus similarly
situated for purposes of conditional certification. Serco's
arguments are not entirely without merit; however, they are better
suited for summary judgment or decertification following discovery,
or at least where discovery is largely complete and the matter is
ready for trial.
As to the Notice to the potential class members, the Judge finds
that although communicating with putative class members is not an
ethical violation per se, the Plaintiff's counsel prematurely and
unilaterally distributed notice to current and former Serco
employees about the lawsuit and their opportunity to join through
targeted ads on Facebook and on their website. The actions of the
Plaintiff's counsel in distributing notice of this action to
potential plaintiffs in the manner are clearly a concerted effort
to circumvent the established notification procedure for opt-in
collective actions.
Moreover, the communications from the Plaintiff's counsel are
inaccurate and misleading in that they suggest that any Serco
employee may participate in the lawsuit, regardless of the position
they held or time period in which they worked for Serco. The Judge
will, therefore, grant Serco's motion insofar as it seeks to strike
all consent to join forms filed to date and dismiss those opt-in
Plaintiffs without prejudice.
The Judge further finds the circumstances of the case warrant
equitable tolling of the FLSA's statute of limitations for these
Plaintiffs who, through no fault of their own, opted-in based on
information provided them that was not approved by the Court. He
will also require the Plaintiff to issue a curative notice to
these opt-in plaintiffs informing them that (i) their consents to
join were stricken because they were provided with information
about this lawsuit that was not approved by the Court and thus
potentially misleading; and (ii) they will be receiving a new
notice, approved by the Court. Finally, he has determined that
Serco has incurred attorney's fees and costs in pursuing its motion
for sanctions that but for the conduct of the Plaintiff's counsel
would not have been incurred. The Judge will reserve ruling on
whether to impose a monetary sanction to be paid by Plaintiff's
counsel.
In accordance with these rulings, Judge Ross granted in part
Plaintiff's motion for conditional certification and notice to
putative class members; and granted in part Serco's motion for
denial of court-facilitated notice, accounting of the Plaintiff's
communications with the putative class members, and sanctions.
He conditionally certified a class of Serco hourly employees who
worked in the four locations that processed Affordable Care Act
applications, such as the General Clerk 2s, General Clerk 3s,
linguists, production control clerk, and quality control clerk and
those individuals who are paid by the hour and must turn in the
hours over the Deltek System.
Plaintiff Mar'Bella Sandoval is conditionally authorized to act as
the class representative, and the Law Offices of Thomas E. Kennedy,
III, L.C. and Anderson Alexander, PLLC, are authorized to act as
the class counsel.
As it relates to notice to the putative class members, the Judge
denied the Plaintiff's Opposed Motion for Conditional Certification
and Notice to Putative Class Members.
He granted in part the Defendant's Motion for Denial of Plaintiff's
Motion for Court-Facilitated Notice, Accounting of Plaintiff's
Communications with Putative Class Members, and Sanctions.
All Opt-In Plaintiffs' consent forms filed as of the date of the
Order are stricken and all the Opt-In Plaintiffs are dismissed
without prejudice.
The statute of limitations for each of these Opt-In Plaintiffs will
be tolled from the date of the Order to the close of the class
notice period to allow for refiling if they so choose; at the
conclusion of that period, the statute of limitations will commence
running against the claims of the Opt-In Plaintiffs.
The Plaintiff shall, within seven days of the date of the Order,
submit a proposed curative notice to the Defendant. The Defendant
will have seven days to respond. Thereafter, the parties will have
five days to file a joint agreed upon curative notice with the
Court for its approval. In the event they cannot agree, the
Plaintiff will submit her proposed curative notice and the
Defendant will submit its objections to that notice for the Court's
consideration. Once the Court has approved the curative notice,
the class counsel will have 21 days to disseminate the curative
notice to all the opt-in Plaintiffs dismissed from the action.
Following the curative notice period, the Plaintiff will have seven
days to submit a new proposed class notice and consent form to the
Defendant. The Defendant will have seven days to respond.
Thereafter, the parties will have five days to file a joint agreed
upon class notice with the Court for its approval. In the event
they cannot agree, the Plaintiff will submit her proposed class
notice and the Defendant will submit its objections to that notice
for the Court's consideration. The Court will then issue an order
regarding notice to the class.
A full-text copy of the Court's May 10, 2019 Memorandum and Order
is available at https://is.gd/jmAhZs from Leagle.com.
Mar'Bella Sandoval, Individually and on behalf of all others
similarly situated, Plaintiff, represented by Austin Winters
Anderson -- austin@a2xlaw.com -- ANDERSON ALEXANDER, PLLC, pro hac
vice, Sarah Jane Hunt -- sarahjane@tkennedylaw.com -- LAW OFFICES
OF THOMAS E. KENNEDY, III, LC & William Clifton Alexander, ANDERSON
ALEXANDER, PLLC, pro hac vice.
Serco, Inc., Defendant, represented by Brett C. Bartlett --
bbartlett@seyfarth.com -- SEYFARTH SHAW, LLP, Katy M. Smallwood --
ksmallwood@seyfarth.com -- SEYFARTH SHAW, LLP & Kevin M. Young --
kyoung@seyfarth.com -- SEYFARTH SHAW, LLP.
SERVICE COMPANIES: Mijares' Bid to Certify Cleaners Class Denied
----------------------------------------------------------------
The Hon. Roy B. Dalton, Jr., denies the Plaintiffs' motion for
conditional certification and authorization to notify the putative
class under 29 U.S.C. Section 216(b) in the lawsuit titled MANUEL
MIJARES; MARIAN GODOY; JOANDERSON BENCOMO; and ANOAS DIONICIO v.
THE SERVICE COMPANIES, INC., Case No. 6:18-cv-02024-RBD-TBS (M.D.
Fla.).
Judge Dalton opines that the Plaintiffs have failed to demonstrate
that "there are other employees . . . who desire to 'opt-in' and
who are 'similarly situated' with respect to their job requirements
and with regard to their pay provisions," citing Dybach, 942 F.2d
at 1567–68.
Plaintiffs Manuel Mijares, Marian Godoy, Joanderson Bencomo, and
Anoas Dionicio sued their former employer, The Service Companies,
Inc., under the Fair Labor Standards Act for failing to pay
overtime compensation. The Plaintiffs suggest this collective
action include:
All "house cleaners" who worked for Defendant within the
last three years who believe they were not paid proper
overtime wage compensation during any work week of their
employment within the applicable statute of limitations
period.[CC]
SOUTH CONE: Faces Reid ADA Suit in Southern Dist. of New York
-------------------------------------------------------------
A class action lawsuit has been filed against South Cone, Inc. The
case is captioned as Valentin Reid, on behalf of himself and all
others similarly situated, the Plaintiff, vs. South Cone, Inc., the
Defendant, Case No. 1:19-cv-04822-PAE (S.D.N.Y., May 23, 2019). The
suit alleges Americans with Disabilities Act violation. The case is
assigned to the Hon. Judge Paul A. Engelmayer.[BN]
Attorneys for the Plaintiff:
David Paul Force, Esq.
STEINSAKS LEGAL
66 Washington Place
East Rutherford, NJ 07073
Telephone: (201) 669-9480
E-mail: dforce@steinsakslegal.com
SSP AMERICA: Wilson-Davis Labor Suit Removed to C.D. Cal.
---------------------------------------------------------
The case captioned Tramon Wilson-Davis, individually and on behalf
of all others similarly situated, Plaintiff, v. SSP America, Inc.,
SSP America LAX and Does 1-100, inclusive, Defendants, Case No.
19STCV08579 (Cal. Super., March 13, 2019), was removed to the U.S.
District Court of Central California on May 20, 2019 under Case No.
19-cv-04375.
Davis seeks redress for Defendants' failure to provide meal
periods, rest periods, minimum wages, overtime, complete and
accurate wage statements; reimbursement of business-related
expenses resulting from unfair business practices; waiting time
penalties for unpaid wages due upon termination; and for violation
of the California Labor Code, California Business and Professions
Code, including declaratory relief, damages, penalties, equitable
relief, costs and attorneys' fees.[BN]
Plaintiff is represented by:
Jessica L Campbell, Esq.
Simon Kwak, Esq.
Suren N. Weerasuriya, Esq.
Samuel A. Wong, Esq.
AEGIS LAW FIRM, PC
9811 Irvine Center Drive, Suite 100
Irvine, CA 2618
Telephone: (949) 379-6250
Facsimile: (949) 379-6251
Defendants are represented by:
Denise M. Visconti, Esq.
Christina Hayes, Esq.
LITTLER MENDELSON, P.C.
501 W. Broadway, Suite 900
San Diego, CA 92101.3577
Telephone: (619) 232-0441
Facsimile: (619) 232-4302
Email: dvisconti@littler.com
chayes@littler.com
ST. LOUIS, MO: Seeks 8th Circuit Review of Ruling in Ahmad Suit
---------------------------------------------------------------
The City of St. Louis filed an appeal from a Court ruling in the
lawsuit styled Maleeha Ahmad, et al. v. City of St. Louis,
Missouri, Case No. 4:17-cv-02455-CDP, in the U.S. District Court
for the Eastern District of Missouri - St. Louis.
As previously reported in the Class Action Reporter, the ACLU of
Missouri has filed a class action lawsuit against the City of St.
Louis on behalf of protesters alleging the city has retaliated
against them for expressing their right to free speech,
unreasonably seized them, applied undue force and violated their
due process rights with methods including "kettling," gassing them
and spraying them without fair warning.
The lawsuit was filed in federal court on behalf of lead plaintiffs
Maleeha Ahmad and Alison Dreith, who was also pepper-sprayed at the
downtown protest. Dreith is also executive director of NARAL
Pro-Choice Missouri.
Both Dreith and Ahmad were protesting downtown on the afternoon of
September 15, 2017. That was just hours after the announcement
that former St. Louis police officer Jason Stockley had been found
not guilty of murder, and well before any of the damage that would
result later in the weekend following the end of organized
protests.
The appellate case is captioned as Maleeha Ahmad, et al. v. City of
St. Louis, Missouri, Case No. 19-8011, in the United States Court
of Appeals for the Eighth Circuit.[BN]
Plaintiffs-Respondents Maleeha S. Ahmad, W. Patrick Mobley and
Pamela Lewczuk are represented by:
Omri E. Praiss, Esq.
Anthony E. Rothert, Esq.
AMERICAN CIVIL LIBERTIES UNION OF MISSOURI FOUNDATION
906 Olive Street
Saint Louis, MO 63101
Telephone: (314) 652-3114
E-mail: opraiss@aclu−mo.org
trothert@aclu−mo.org
- and -
Jessie M. Steffan, Esq.
AMERICAN CIVIL LIBERTIES UNION OF MISSOURI FOUNDATION
454 Whittier Street
Saint Louis, MO 63108-0000
Telephone: (314) 652-3114
E-mail: jsteffan@aclu−mo.org
- and -
Gillian R. Wilcox, Esq.
ACLU OF MISSOURI FOUNDATION
406 W. 34th Street, Suite 420
Kansas City, MO 64111
Telephone: (816) 470-9938
E-mail: gwilcox@aclu−mo.org
Defendant-Petitioner City of St. Louis, Missouri, is represented
by:
Megan Kathleen G. Bruyns, Esq.
Robert Henry Dierker, Jr., Esq.
Abby Duncan, Esq.
Brandon David Laird, Esq.
Amy Raimondo, Esq.
CITY COUNSELOR'S OFFICE
314 City Hall
1200 Market Street
Saint Louis, MO 63103-0000
Telephone: (314) 622-3361
E-mail: duncana@stlouis-mo.gov
STAMPS.COM INC: Awaits Final Okay of Lopez-Dixon Case Settlement
----------------------------------------------------------------
Stamps.com Inc. said in its Form 10-Q Report filed with the
Securities and Exchange Commission on May 10, 2019, for the
quarterly period ended March 31, 2019, that final approval of the
settlement in the case, Juan Lopez and Nicholas Dixon v.
Stamps.com, Inc., Case No. 2:18-cv-01101, is pending.
On February 8, 2018, a putative class action complaint was filed
against us in a case entitled Juan Lopez and Nicholas Dixon v.
Stamps.com, Inc., Case No. 2:18-cv-01101, in the United States
District Court for the Central District of California, Western
Division, alleging wage and hour claims on behalf of our current
and former "non-exempt" hourly call center employees. The complaint
sought class certification, unspecified damages, unpaid wages,
penalties, restitution, interest, and attorneys' fees and costs.
On July 24, 2018, the company entered into a preliminary settlement
that would resolve this matter for a non-material payment to be
distributed to the participating class members. The court granted
preliminary approval of the settlement and, at a hearing held on
April 29, 2019, requested additional documentation.
Therefore the timing of final approval of the settlement is now
pending court approval at a time convenient to the court.
Stamps.com Inc. provides Internet-based mailing and shipping
solutions in the United States and Europe. The company offers
mailing and shipping solutions to mail and ship various mail pieces
and packages through the United States Postal Service (USPS) under
the Stamps.com and Endicia brands. The company was formerly known
as StampMaster, Inc. and changed its name to Stamps.com Inc. in
December 1998. Stamps.com Inc. was founded in 1996 and is
headquartered in El Segundo, California.
STAMPS.COM INC: Continues to Defend Karinski Class Suit
-------------------------------------------------------
Stamps.com Inc. said in its Form 10-Q Report filed with the
Securities and Exchange Commission on May 10, 2019, for the
quarterly period ended March 31, 2019, that the company continues
to defend a class action suit entitled, entitled Karinski v.
Stamps.com, Inc. et al, Case 2:19-cv-01828.
On February 28, 2019, a putative class action complaint was filed
against the Company in a case entitled Grabisch v. Stamps.com, Inc.
et al, Case No. 2:19-cv-01497, in the United States District Court
for the Central District of California, Western Division, alleging
violations of the Securities Exchange Act of 1934 purportedly on
behalf of all those who purchased, or otherwise acquired,
Stamps.com common stock between May 3, 2017 and February 21, 2019.
On March 13, 2019, a second putative class action complaint, with
the same allegations, was filed against the Company in a case
entitled Karinski v. Stamps.com, Inc. et al, Case 2:19-cv-01828, in
the United States District Court for the Central District of
California, Western Division.
On April 22, 2019, the Grabisch action was dismissed in its
entirety without prejudice. The remaining Karinski complaint seeks
class certification, unspecified damages, attorneys' fees and
costs. Lead plaintiff motions were filed on April 29, 2019, but a
lead plaintiff has not yet been appointed and a consolidated
complaint has not yet been filed.
Stamps.com said, "We believe that the case is without merit and
intend to defend this case vigorously. Due to the very recent
filing date of the case, neither the likelihood that a loss, if
any, will be realized, nor an estimate of the possible loss or
range of loss, if any, can be determined."
Stamps.com Inc. provides Internet-based mailing and shipping
solutions in the United States and Europe. The company offers
mailing and shipping solutions to mail and ship various mail pieces
and packages through the United States Postal Service (USPS) under
the Stamps.com and Endicia brands. The company was formerly known
as StampMaster, Inc. and changed its name to Stamps.com Inc. in
December 1998. Stamps.com Inc. was founded in 1996 and is
headquartered in El Segundo, California.
STARKEY LABORATORIES: Beck et al. Allege Theft of ESOP Funds
------------------------------------------------------------
Jaime Beck, Byron Hanson, and Lynn Melcher, the Plaintiffs, v.
WILLIAM F. AUSTIN, BRANDON SAWALICH, JEROME RUZICKA, SCOTT A.
NELSON, LAWRENCE W. MILLER, W. JEFFREY TAYLOR, JEFFREY LONGTAIN,
and STARKEY LABORATORIES, INC., the Defendants, Case No.
0:19-cv-01453-PJS-SER (D. Minn., June 3, 2019), seeks to recover
assets Plaintiffs lost as a direct result of Defendants' mail
fraud, wire fraud, and embezzlement of funds, and Defendants'
failure to meet their duty to be reasonably prudent fiduciaries,
and to recover embezzled funds to the Starkey Employee Stock
Ownership Plan (ESOP).
According to the complaint, the Plaintiffs are ESOP participants.
Between 2006 and 2015, Jerome Ruzicka, Scott Nelson, Lawrence
Miller, Jeffrey Taylor, and Jeffrey Longtain (the "RICO
Defendants") stole over $30,000,000 under their own tallies from
Starkey Laboratories, a corporation that manufactures hearing aids.
Starkey is a privately held corporation that was owned, in part, by
its employees through an ESOP. By stealing tens of millions of
dollars from the company, these defendants stole from Starkey's
owners, including the ESOP. The ESOP was entitled to distributions
from Starkey's profits and it suffered from receiving significantly
lower contributions due to the Defendants' theft, and suffered
substantial losses as a result of the RICO Defendants' conduct.
Over the course of at least 2008 until the ESOP was shuttered at
the end of 2017, the ESOP lost almost $37 million dollars and had a
net loss of almost $4 million dollars, despite Starkey itself
having its "most profitable year ever" during that time, and
estimated annual revenues of up to $850 million.
In 2016, a federal grand jury indicted Ruzicka, Nelson, Miller, and
Taylor of committing mail and/or wire fraud in the course of their
overall scheme to defraud Starkey. Nelson and Longtain pleaded
guilty to conspiracy and tax fraud, respectively, and testified
against Ruzicka and Taylor. In 2018, a jury found defendants
Ruzicka and Taylor guilty of several counts of mail and wire fraud.
Ruzicka and Taylor were finally sentenced on May 15, 2019, and have
been ordered to report to serve their sentences of 84 months and 18
months, respectively, on July 8, 2019.
Ruzicka, Miller, and Nelson each served as ESOP fiduciaries during
the time period in which they stole over $30,000,000 from Starkey.
William Austin, Starkey's founder and CEO, served as an ESOP
fiduciary in his role as trustee, and though Austin told
investigators he heard rumors of financial looting as early as
2006, he failed to investigate until 2015. After Austin discovered
Ruzicka's fraud, he replaced Ruzicka as an ESOP trustee with his
stepson, Brandon Sawalich. Although Austin and Sawalich have
maintained that they had no knowledge of the theft led by Ruzicka
until 2015, they both owed duties of prudence and loyalty to ESOP
beneficiaries.
Austin, Sawalich, Ruzicka, Miller, and Nelson -- as "Fiduciary
Defendants" -- owed the ESOP fiduciary duties and were required to
act prudently and solely in the interest of all of the participants
and beneficiaries of the ESOP, including Plaintiffs and the Class.
This included not defrauding or embezzling tens of millions of
dollars, engaging in proper oversight, and bringing a shareholder
derivative action against the RICO Defendants for their blatant
violations of corporate fiduciary duties under Minnesota Law. Had
the Fiduciary Defendants brought such an action, they would likely
have prevailed and recovered the funds stolen from Starkey and the
ESOP participants and beneficiaries. Defendants Austin and Sawalich
allege that they were unaware of the fraud committed by Ruzicka,
Miller, and Nelson while it was happening, but admit they failed to
investigate until 2015 despite hearing rumors as early as 2006 and
still have failed to take any action for the benefit of the ESOP up
until and including the filing of this complaint. They had duties
under ERISA to bring a derivative action to recover the funds
stolen by the fraud defendants, and by failing to do so, violated
their fiduciary obligations to plaintiffs. In fact, Austin filed a
motion under the Crime Victim's Rights Act requesting the court
name himself and Starkey as "crime victims," but did not seek to
name the ESOP as a victim of fraud or attempt to recover the stolen
funds for the ESOP. The Court ordered that Starkey Laboratories,
Inc. be considered a crime victim pursuant to the Crime Victim's
Rights Act, even while acknowledging that Austin had failed to
pursue Crime Victim status for the ESOP and noting that the law
could not benefit the ESOP or Austin as the only shareholders of
Starkey.
During the course of their $30,000,000 theft, the RICO Defendants
committed mail fraud, wire fraud, and embezzlement of employee
benefit plan funds in violation of RICO, 18 U.S.C. sections 1962
(c) and (d). Plaintiffs bring this civil RICO action to recover
those funds stolen from the ESOP, the lawsuit says.
The ESOP was originally effective January 1, 2004, and was in
effect until December 31, 2017. The provisions of the ESOP were
most recently amended and restated effective January 1, 2017, and
the ESOP was terminated effective December 31, 2017, via written
action of the sole director of Starkey, Defendant Austin, in lieu
of a meeting. The ESOP was an employee stock ownership plan
pursuant to 26 U.S.C. section 4975(e)(7) and 26 U.S.C. section
401(a).[BN]
Attorneys for the Plaintiffs:
Kate M. Baxter-Kauf, Esq.
Gregg M. Fishbein, Esq.
Arielle S. Wagner, Esq.
LOCKRIDGE GRINDAL NAUEN, PLLP
100 Washington Avenue South, Suite 2200
Minneapolis, MN 55401-2159
Telephone: 612-339-6900
Facsimile: 612-339-0981
E-mail: gmfishbein@locklaw.com
kmbaxter-kauf@locklaw.com
aswagner@locklaw.com
STEAK N SHAKE: Court Partly Amends Judgment in Drake MMWL/FLSA Suit
-------------------------------------------------------------------
In the case, SANDRA DRAKE and RANDY SMITH on behalf of themselves
and others similarly situated, Plaintiffs, v. STEAK N SHAKE
OPERATIONS, INC, Defendant, Case No. 4:14-cv-01535-JAR (E.D. Mo.),
Judge John A. Ross of the U.S. District Court for the Eastern
District of Missouri, Eastern Division, granted in part the
Plaintiffs' Motion to Alter Judgment.
The case began in 2014 with a complaint for damages for unpaid
overtime filed by Managers who worked for Defendant Steak N Shake
Operations, Inc. ("SnS") Managers. The Managers sought to pursue a
class action under the Missouri Minimum Wage Law ("MMWL") and a
collective action under the Fair Labor Standards Act ("FLSA").
The collective and class were formally certified in December 2017.
A six-day jury trial was held in February 2019. The jury found for
the Plaintiffs on the issues of liability and willfulness and, in a
second phase of trial, awarded the 275 MMWL class members a total
of $2,883,180.05 and awarded the eleven FLSA class members a total
of $154,988.22. The Court entered a judgment incorporating the
jury's verdicts on Feb. 28, 2019.
Thereafter, the Plaintiffs filed the motion to alter judgment,
arguing that they are entitled to (1) liquidated damages under the
MMWL in an amount equal to the jury's $2,883,180.05 award; (2)
liquidated damages under the FLSA in an amount equal to the jury's
$154,988.22 award; (3) attorney fees in the amount of $1,819,200
based on hourly rates of $575 and $550; and (4) costs in the amount
of $40,219.49.
The Defendant does not challenge the Plaintiffs' first or fourth
requests, but it argues that it is shielded from liquidated damages
under the FLSA because it acted in good faith and asserts that the
claimed hourly rates are unreasonably high.
Judge Ross finds that under the MMWL, as applicable when the
Plaintiffs filed suit, employers who fail to properly pay overtime
will be liable to the employee affected for the full amount of the
wage rate and an additional equal amount as liquidated damages.
The Defendant does not dispute that the award of liquidated damages
is mandatory and automatic under the statute. Accordingly, the
Judge will amend the Court's judgment to include liquidated damages
under the MMWL in an amount equal to the jury's $2,883,180.05
award.
The Judge is not persuaded that the Defendant had no reason to
believe that Managers were not performing exempt tasks. Indeed,
SnS senior management testified that it was aware of chronic and
widespread understaffing. The evidence at trial showed that SnS'
primary solution for understaffed stores was to use salaried
Managers working overtime and that SnS must have known that those
Managers were simply too busy performing production and service
duties to meet the definitions for exempt employees. Thus, SnS'
failure to pay overtime was not a good faith mistake. Accordingly,
he will amend its judgment to award the Plaintiffs liquidated
damages under the FLSA in an amount equal to the jury's $154,988.22
award.
The Judge recognizes that the case was a complex, years-long case
involving almost 300 Plaintiffs, that the outcome was unclear, that
the counsel undertook significant risk in pursuing it to trial, and
did pursue the suit all the way to a jury verdict. Given the
substantial amount of time and labor expended, tge counsel's
considerable skill, the effects of pursuing this kind of case on a
firm of their size, and the outcome of the suit, he concludes that
the counsel are entitled to hourly rates greater than those awarded
in the recent FLSA cases in the district cited. Considering all
relevant factors in light of local rates, he concludes that hourly
rates of $500 for Mr. Donelon and $475 for Mr. Craig are
reasonable. Accordingly, the Judge will amend its judgment to
include an award of $711,150 for Mr. Donelon's 1,422.3 reported
hours, and $865,070 for Mr. Craig's 1,821.2 reported hours,
totaling $1,576,220.
Finally, the Plaintiffs seek an award of reasonable out-of-pocket
expenses incurred by the attorney which are normally charged to a
fee paying client. As noted, the Defendant does not object to the
Plaintiffs' request for costs or the amount. Accordingly, the
Judge will amend its judgment to include an award of $40,219.49 in
costs.
For the foregoing reasons, Judge Ross finds that the Court's
Judgment dated Feb. 28, 2019, will be amended as described.
Accordingly, he granted in part the Plaintiffs' Motion to Alter
Judgment. An amended judgment will be filed separately.
A full-text copy of the Court's May 10, 2019 Order is available at
https://is.gd/vuvY8u from Leagle.com.
Sandra Drake & Randy Smith, on behalf of themselves and others
similarly situated, Plaintiffs, represented by Brendan J. Donelon,
DONELON, P.C. & Daniel W. Craig, DONELON, P.C.
Steak N Shake Operations, Inc., an Indiana Corporation, Defendant,
represented by Rene' Leigh Duckworth --
rene.duckworth@ogletree.com
-- OGLETREE DEAKINS, Rodney A. Harrison --
rodney.harrison@ogletree.com -- OGLETREE DEAKINS, Erin E. Williams
-- erin.williams@ogletree.com -- OGLETREE DEAKINS & Mallory M.
Stumpf -- mallory.stumpf@ogletree.com -- OGLETREE DEAKINS.
STEAK N' SHAKE: Judge Cuts Attorneys Fees in Class Action
---------------------------------------------------------
Takesha Thomas, writing for St. Louis Record, reports that a
federal judge has amended part of a nearly $3 million award
involving a class action suit filed by managers of Steak N' Shake
restaurants.
On May 10, Judge John A. Ross for the U.S. District Court for the
Eastern District of Missouri Eastern Division granted the class
action plaintiffs' request to alter judgment involving attorneys'
fees and liquidation damages based on the Fair Labor Standards Act
(FLSA).
Sandra Drake and Randy Smith filed a 2014 complaint alleging that
Steak N' Shake (SnS) failed to pay overtime wages to managers. In
February, 275 class action members were awarded $2.8 million under
the Missouri Minimum Wage Law and 11 FLSA class members were
awarded $154,988.22.
Ross amended the hourly rate for attorneys representing the
plaintiffs. The plaintiffs' attorneys sought to charge between $575
and $550 per hour for a total of $1.8 million. Steak N' Shake
argued that, while it was undisputed the number of hours charged,
the rate was unreasonably high.
"The court agrees that the fees are somewhat too high for this
district, given all of the factors, and should be adjusted," Ross
wrote, ruling that the rate should be reduced to $500 for Brendan
J. Donelon and $475 for Daniel Craig, both of Donelon PC in Kansas
City.
Regarding liquidation damages under the FLSA, the plaintiffs argued
that SnS willfully violated the law when it failed to pay overtime
rates to managers. They argued that based on the FLSA, SnS should
not only be held liable, but also be charged "an additional equal
amount as liquidated damages," the ruling states
SnS claims that it "acted in good faith and had reasonable grounds
for believing that its managers were performing [exempt work]," the
ruling states.
Ross, however, found that Steak N' Shake did not act in "good
faith" when it failed to pay overtime to managers.
"The evidence at trial showed that SnS's primary solution for
understaffed stores was to use salaried managers working overtime
and that SnS must have known that those managers were simply too
busy performing production and service duties to meet the
definitions for exempt employees. Thus, SnS's failure to pay
overtime was not a good faith mistake. Accordingly, the court will
amend its judgment to award Plaintiffs liquidated damages under the
FLSA in an amount equal to the jury's $154,988.22 award," Ross
wrote. [GN]
STERLING JEWELERS: Bagu Seeks Unpaid Wages for Hourly Employees
---------------------------------------------------------------
STEPHANIE BAGU, on behalf of herself and all others similarly
situated, the Plaintiff, vs. STERLING JEWELERS INC., the
Defendant, Case No. 19-1480 (Mass. Super., May 24, 2019), seeks
recover unpaid wages including overtime and Sunday and holiday
premium pay, owed to Plaintiff and all other similarly situated
individuals who have worked as hourly commissioned employees for
Sterling Jewelers Inc. and have not received all wages owed.
Sterling owns and operates numerous retail jewelry stores under
several brand names throughout Massachusetts. Sterling employs
sales representatives and other hourly employees to work at those
stores and pays those employees an hourly rate plus commissions
based on their sales.
Although the sales representatives and other hourly employees at
Sterling's retail stores often work more than 40 hours in a week.
Sterling does not pay the employees the overtime compensation owed
to them. In addition, and although Sterling's sales representatives
and other hourly employees routinely work Sundays and holidays,
Sterling does not pay all premium pay owed to the employees for
work performed on those days. As a result of these practices,
Sterling has violated the overtime provision of the Massachusetts
Minimum Fair Wage Law, and the Massachusetts Wage Act, the lawsuit
says.[BN]
Attorneys for the Plaintiff:
Hillary Schwab, Esq.
Brant Casavant, Esq.
FAIR WORK P.C.
192 South Street, Suite 450
Boston, MA 02111
Telephone: (617) 607-3261
Facsimile. (617) 488-2261
E-mail: hillary@fairworklaw.com
brant@fairworklaw.com
STONEMOR PARTNERS: Appeal in Anderson Class Suit Ongoing
--------------------------------------------------------
StoneMor Partners L.P. said in its Form 10-Q Report filed with the
Securities and Exchange Commission on May 10, 2019, for the
quarterly period ended March 31, 2019, that the appeal in Anderson
v. StoneMor Partners, LP, et al., is still ongoing.
Anderson v. StoneMor Partners, LP, et al., No. 2:16-cv-6111, filed
on November 21, 2016, in the United States District Court for the
Eastern District of Pennsylvania.
The plaintiffs in this case (as well as Klein v. StoneMor Partners,
LP, et al., No. 2:16-cv-6275, filed in the United States District
Court for the Eastern District of Pennsylvania on December 2, 2016,
which has been consolidated with this case) brought an action on
behalf of a putative class of the holders of Partnership units and
allege that the Partnership made misrepresentations to investors in
violation of Section 10(b) of the Securities Exchange Act of 1934
by, among other things and in general, failing to clearly disclose
the use of proceeds from debt and equity offerings by making
allegedly false or misleading statements concerning (a) the
Partnership's strength or health in connection with a particular
quarter's distribution announcement, (b) the connection between
operations and distributions and (c) the Partnership's use of cash
from equity offerings and its credit facility.
Plaintiffs sought damages from the Partnership and certain of its
officers and directors on behalf of the class of Partnership
unitholders, as well as costs and attorneys' fees.
Lead plaintiffs have been appointed in this case, and filed a
Consolidated Amended Class Action Complaint on April 24, 2017.
Defendants filed a motion to dismiss that Consolidated Amended
Complaint on June 8, 2017. The motion was granted on October 31,
2017, and the court entered judgment dismissing the case on
November 30, 2017.
Plaintiffs filed a notice of appeal on December 29, 2017. Oral
argument was held before the United States Court of Appeals for the
Third Circuit on November 1, 2018.
StoneMor said, "The Partnership expects the court to render a
decision in the near future, but there can be no assurance as to
when the court will issue its ruling."
StoneMor Partners L.P., together with its subsidiaries, owns and
operates cemeteries and funeral homes in the United States. It
operates through two segments, Cemetery Operations and Funeral Home
Operations. The company was founded in 1999 and is headquartered in
Trevose, Pennsylvania.
STORED VALUE: Seeks 6th Cir. Review of Ruling in Humphrey Suit
--------------------------------------------------------------
Defendants Republic Bank & Trust Company and Stored Value Cards,
Inc., filed an appeal from a Court ruling in the lawsuit titled
Amber Humphrey v. Stored Value Cards, Inc., et al., Case No.
1:18-cv-01050, in the U.S. District Court for the Northern District
of Ohio at Cleveland.
The appellate case is captioned as Amber Humphrey v. Stored Value
Cards, Inc., et al., Case No. 19-3467, in the United States Court
of Appeals for the Sixth Circuit.
As reported in the Class Action Reporter on May 3, 2019, the
Defendants filed an appeal from a Court ruling in the lawsuit.
That appellate case is entitled In re: Stored Value Cards, Inc., et
al., Case No. 19-303.
Judge James S. Gwin granted in November 2018 the Plaintiff's motion
to certify the three proposed classes: a nationwide class for the
Plaintiff's claims under the Electronic Funds Transfer Act
("EFTA"), and two Ohio classes for Ohio law conversion and unjust
enrichment claims.
Ms. Humphrey brings the class action complaint against the
Defendants alleging that they wrongfully issued unsolicited and
activated debit cards to her and the class members. She says this
distribution of unsolicited and activated debit cards was illegal
and caused them to suffer fees they had never agreed to.[BN]
Plaintiff-Appellee AMBER HUMPHREY, on behalf of herself and all
others similarly situated, fka Amber Horvath, is represented by:
Stephen M. Bosak, Jr., Esq.
Matthew A. Dooley, Esq.
Ryan M. Gembala, Esq.
O'TOOLE, MCLAUGHLIN, DOOLEY & PECORA
5455 Detroit Road
Sheffield Village, OH 44054
Telephone: (440) 930-4001
E-mail: sbosak@omdplaw.com
MDooley@omdplaw.com
rgembala@omdplaw.com
Defendants-Appellants STORED VALUE CARDS, INC., dba Numi Financial,
and REPUBLIC BANK & TRUST COMPANY are represented by:
Terry W. Posey, Jr., Esq.
THOMPSON HINE
10050 Innovation Drive, Suite 400
Miamisburg, OH 45342
Telephone: (937) 443-6857
E-mail: Terry.Posey@ThompsonHine.com
- and -
Robert Francis Ware, Esq.
THOMPSON HINE
127 Public Square, Suite 3900
Cleveland, OH 44114
Telephone: (216) 566-5500
E-mail: rob.ware@thompsonhine.com
- and -
Elizabeth Catherine Rinehart, Esq.
VENABLE LLP
750 E. Pratt Street, Suite 900
Baltimore, MD 21202
Telephone: (410) 244-7400
E-mail: lcrinehart@venable.com
SYNACOR INC: Bid to Dismiss New York Securities Suit Still Pending
------------------------------------------------------------------
Synacor, Inc. said in its Form 10-Q Report filed with the
Securities and Exchange Commission on May 10, 2019, for the
quarterly period ended March 31, 2019, that the company's motion to
dismiss the federal securities class action suit filed in the U.S.
District Court for the Southern District of New York, is still
pending.
The Company and its Chief Executive Officer and former Chief
Financial Officer were named as defendants in a federal securities
class action lawsuit filed on April 4, 2018 in the United States
District Court for the Southern District of New York.
The class includes persons who purchased the Company's shares
between May 4, 2016 and March 15, 2018. The plaintiff alleged that
the Company made materially false and misleading statements
regarding its contract with AT&T and the timing of revenue to be
derived therefrom, and that as a result class members suffered
losses because Synacor shares traded at artificially inflated
prices.
The plaintiff sought an unspecified amount of damages, as well as
interest, attorneys' fees and legal expenses.
The court appointed a lead plaintiff and approved plaintiff’s
selection of lead counsel on July 6, 2018. On October 16, 2018 the
court appointed new lead counsel and confirmed the lead plaintiff.
The plaintiff filed an amended complaint on November 2, 2018 and
the Company filed a motion to dismiss on December 17, 2018.
The plaintiff filed its opposition to the Motion to Dismiss on
January 19, 2019 and the Company filed its reply to plaintiff’s
opposition on February 15, 2019.
The Company disputes these claims and intends to defend them
vigorously.
Synacors said, "The Company cannot yet determine whether it is
probable that a loss will be incurred in connection with this
complaint, nor can the Company reasonably estimate the potential
loss, if any. Any liabilities related to this lawsuit are covered
by D&O insurance after the Company reaches its deductible."
No further updates were provided in the Company's SEC report.
Synacor, Inc. operates as a technology development, multiplatform
services, and revenue partner for video, Internet, and
communications providers; and device manufacturers, governments,
and enterprises in the United States and internationally. The
company was formerly known as CKMP, Inc. and changed its name to
Synacor, Inc. in July 2001. Synacor, Inc. was founded in 1998 and
is headquartered in Buffalo, New York.
SYNCHRONOSS TECH: Bid to Dismiss Amended NJ Complaint Underway
--------------------------------------------------------------
Synchronoss Technologies, Inc. said in its Form 10-Q Report filed
with the Securities and Exchange Commission on May 10, 2019, for
the quarterly period ended March 31, 2019, that the motion to
dismiss the second consolidated amended complaint in a class action
before the United States District Court for the District of New
Jersey remains pending.
On May 1, 2017, May 2, 2017, June 8, 2017 and June 14, 2017, four
putative class actions were filed against the Company and certain
of its current and former officers and directors in the United
States District Court for the District of New Jersey (the
"Securities Law Action").
After these cases were consolidated, the court appointed as lead
plaintiff Employees' Retirement System of the State of Hawaii,
which filed, on November 20, 2017, a consolidated amended complaint
purportedly on behalf of purchasers of our common stock between
February 3, 2016 and June 13, 2017.
On February 2, 2018, the defendants moved to dismiss the
consolidated amended complaint in its entirety, with prejudice.
Before that motion was decided, on August 24, 2018, lead plaintiff
filed a second consolidated amended complaint purportedly on behalf
of purchasers of our common stock between October 28, 2014 and June
13, 2017. The second consolidated amended complaint asserts claims
under Sections 10(b) and 20(a) of the Securities Exchange Act of
1934, as amended, and it alleges, among other things, that the
defendants made false and misleading statements of material
information concerning the company's financial results, business
operations, and prospects. The plaintiff seeks unspecified damages,
fees, interest, and costs.
Defendants' motion to dismiss the second consolidated amended
complaint is pending before the Court.
The Company believes that the asserted claims lack merit, and
intends to defend against all of the claims vigorously.
Synchronoss said, "Due to the inherent uncertainties of litigation,
the Company cannot predict the outcome of the actions at this time
and can give no assurance that the asserted claims will not have a
material adverse effect on its financial position or results of
operations."
No further updates were provided in the Company's SEC report.
Synchronoss Technologies, Inc. provides cloud, digital, messaging,
and Internet of Things (IoT) platforms, products, and solutions in
North America, Europe, the Middle East, Africa, Latin America, and
the Asia Pacific. Synchronoss Technologies, Inc. was founded in
2000 and is headquartered in Bridgewater, New Jersey.
TOLTECA ENTERPRISES: Hackler Seeks Certification of FDCPA Class
---------------------------------------------------------------
The Plaintiff in the lawsuit styled SADIE HACKLER, on behalf of
herself and all others similarly situated v. TOLTECA ENTERPRISES,
INC. d/b/a PHOENIX RECOVERY GROUP, Case No. 5:18-cv-00911-XR (W.D.
Tex.), seeks certification of a class consisting of:
all persons in the United States and its territories, who,
within the year proceeding the filing of the suit, were sent
an initial communication letter by Defendant that:
a. Had these words in this order: "If you dispute the
validity of this debt within 30 days from receipt of this
notice, we will mail verification of the debt to you. If
you do not dispute the validity of this debt within 30
days, from receipt of this notice, we will assume it is
valid" or
b. Regardless of whether the letter contained the words "in
writing" and "written request", the letter included the
statement "Your balance may reflect a one-time agency
collection fee."
The class does not include persons who, prior to the date the
action is certified to proceed as a class, either (1) provided
Defendant with a notice of a bankruptcy filing, (2) commenced an
action in any court against Defendant an action alleging violations
of the FDCPA, or (3) signed a general release of claims against
Defendant; or (4) is a judge assigned to this case or is a member
of such judge's staff or immediate family, or (5) the Defendant can
demonstrate that the Form Letter was not received by the
addressee.
The lawsuit is a case brought under the Federal Fair Debt
Collection Practices Act. It concerns a form letter that Defendant
uses in its consumer debt collection business and sent to the
Plaintiff. The Form Letter does not include certain notices
required by the FDCPA, nor does is accurately state the amount of
the debt sought to be collected.[CC]
The Plaintiff is represented by:
Benjamin R. Bingham, Esq.
BINGHAM & LEA, P.C.
319 Maverick Street
San Antonio, TX 78212
Telephone: (210) 224-1819
Facsimile: (210) 224-0141
E-mail: ben@binghamandlea.com
- and -
William M. Clanton, Esq.
LAW OFFICE OF BILL CLANTON, P.C.
926 Chulie Dr.
San Antonio, TX 78216
Telephone: (210) 226-0800
Facsimile: (210) 338-8660
E-mail: bill@clantonlawoffice.com
TRAININGWHEEL: Conditional Certification of Freeman Class Endorsed
------------------------------------------------------------------
In the case, KATRINA FREEMAN, individually and on behalf of all
persons similarly situated, and AIREANNE, individually and on
behalf of all persons similarly situated, Plaintiff, v.
TRAININGWHEEL CORPORATION, LLC, a/k/a, TRAININGWHEEL, INC.,
Defendant, Case No. 2:19-cv-52-FtM-38UAM (M.D. Fla.), Magistrate
Judge Douglas N. Frazier of the U.S. District Court for the Middle
District of Florida, Fort Myers Division, recommended that the
parties' Joint Stipulation and Motion for Entry of Order Approving
Conditional Certification and Court-Authorized Notice Pursuant to
29 U.S.C. Section 216(b) and Request for Stay Pending Alternative
Dispute Resolution, filed on March 11, 2019, be granted.
The parties are requesting the Court to enter an order approving
conditional certification and court-authorized notice under Section
216(b) of the Fair Labor Standards Act ("FLSA"), and for a stay of
the proceedings until the completion of alternative dispute
resolution following the opt-in period. They have agreed to
stipulate to a conditional certification of the collective.
They ask that the collective action consist of individuals to be
conditionally certified and receive notice of the lawsuit: All
individuals who worked for TrainingWheel providing training and
support to TrainingWheel's clients in connection with the
implementation of electronic recordkeeping systems in the United
States and who did not receive overtime compensation for hours
worked in excess of 40 per week from three years prior to the
Court's order granting certification to the present. In addition,
the parties stipulate to the terms of the Notice of Lawsuit and
Opt-In Consent Form.
Given the parties' agreement, Magistrate Judge Frazier recommended
that the parties' stipulation and motion be adopted by the District
Court.
He recommended that:
1) The Joint Stipulation and Motion be granted;
2) The District Court enter an Order certifying the following
class: All individuals who worked for TrainingWheel providing
training and support to TrainingWheel's clients in connection with
the implementation of electronic recordkeeping systems in the
United States and who did not receive overtime compensation for
hours worked in excess of 40 per week from [three years prior to
the Court's order granting certificatio] to the present.
3) The Order include the following:
a. Within five business days from the date of the Court's
Order, the Defendants will serve onthe Plaintiffs' counsel a list
of potential Collective members;
b. Within five business days from the date of service by
the Defendant of the said list, the Plaintiffs' counsel will cause
the Notice and Opt-In Consent Form to the Collective. The
Plaintiff will simultaneously send a single copy of the Notice and
Opt-In Consent Form to each individual. The body of the email to
be sent to the Collective will be generic and it will be shown to
and approved by the Defendant's counsel. There will be no other
communications with the Collective other than notice, except that
there will be no restrictions on the Plaintiffs' counsel's ability
to communicate with their clients.
c. As soon as practical, the Plaintiffs' counsel will
provide notice to the Defendant that the Notice and Opt-In Consent
Forms have been sent.
d. Any member of the Collective will have 60 days from
the date of mailing to return a signed copy of the Opt-In Consent
Form to the Plaintiffs' counsel for filing. Opt-In Consents will
be deemed filed on the day they are stamped as received by the
Plaintiffs' counsel. All Opt-In Consents that are received by mail
must be postmarked or marked submitted (if electronic) within 60
days from the date of mailing.
e. The Plaintiffs' counsel will electronically file all
returned Opt-In Consent Forms on a weekly basis.
f. In addition, except as stated in the Stipulation and
Motion, the Parties request that the Court stay any proceedings,
discovery, or case management orders pending participation in
mediation at the close of the opt-in period.
g. The Parties will participate in an in-person mediation
conference before mediator, Mark Hanley, Esquire. The mediation
will take place within 30 days following the close of the opt-in
period. The Plaintiffs and the Defendant will equally divide the
costs of mediation. The Parties will file a Notice of Mediation
notifying the Court of the agreed-upon mediation date.
h. Attendance at mediation will satisfy the mandatory ADR
requirements of the Case Management Plan for the Middle District of
Florida. The Parties will not be required to re-mediate the case
unless ordered by the Court or by mutual agreement.
i. In order for the Parties to engage in meaningful
settlement discussions, the Defendant will produce to the
Plaintiffs' counsel, within 10 business days following the close of
the opt-in period, the following documents and information, if they
exist, for the named Plaintiffs and any individuals who have
submitted Opt-In Consent Forms (Opt-In Plaintiffs):
i. A computer readable database (such as Microsoft
Excel) containing pay and time information during the relevant
statute of limitations. The information will include the amount
and dates of all compensation paid, the hours worked, and the rates
of pay, and the locations and dates of employment.
ii. All documents summarizing or describing the
policies and procedures for compensating the Plaintiffs and the
Opt-In Plaintiffs.
iii. All documents regarding time-keeping systems,
policies, procedures, and practices for the Plaintiffs and the
Opt-In Plaintiffs.
iv. All documents summarizing or describing the job
duties of the Plaintiffs and the Opt-In Plaintiffs.
v. The complete personnel files of the named
Plaintiffs and the Opt-In Plaintiffs.
j. Prior to the mediation, and pursuant to a schedule
agreed to by the mediator and the Parties, the Parties will submit,
to each other and the mediator, detailed mediation statements
setting forth the facts and relevant law supporting their position
on liability and damages.
k. Within five business days following the mediation, the
Parties will file a joint status report notifying the Court whether
the case has settled, subject to Court approval, or the Parties
have reached an impasse.
l. If the mediation results in an impasse, the Parties
will hold a case management conference and submit a proposed Case
Management Plan no later than 30 days following notice to the
Court.
A full-text copy of the Court's May 10, 2019 Report and
Recommendation is available at https://is.gd/764A0q from
Leagle.com.
Katrina Freeman, individually and on behalf of all persons
similarly situated, Plaintiff, represented by David M. Blanchard --
blanchard@bwlawonline.com -- Blanchard & Walker, PLLC, Harold L.
Lichten -- hlichten@llrlaw.com -- Lichten & Liss-Riordan, PC, pro
hac vice, Alexandra K. Piazza -- apiazza@bm.net -- Berger Montague,
PC, pro hac vice, Eric Jacob Lindstrom -- elindstrom@eganlev.com --
Egan, Lev, Lindstrom & Siwica, PA, Nicholas R. Wolfmeyer , Egan,
Lev, Lindstrom & Siwica, PA, Olena Savytska -- osavytska@llrlaw.com
-- Lichten & Liss-Riordan, PC, pro hac vice, Sarah R.
Schalman-Bergen -- sschalman-bergen@bm.net -- Berger Montague, PC,
pro hac vice & Shanon J. Carson -- scarson@bm.net -- Berger
Montague, PC, pro hac vice.
Aireanne Clark, individually and on behalf of all persons similarly
situated, Plaintiff, represented by David M. Blanchard , Blanchard
& Walker, PLLC, pro hac vice, Harold L. Lichten , Lichten &
Liss-Riordan, PC, pro hac vice, Alexandra K. Piazza , Berger
Montague, PC, pro hac vice, Eric Jacob Lindstrom , Egan, Lev,
Lindstrom & Siwica, PA, Nicholas R. Wolfmeyer , Egan, Lev,
Lindstrom & Siwica, PA, Olena Savytska , Lichten & Liss-Riordan,
PC, pro hac vice, Sarah R. Schalman-Bergen , Berger Montague, PC,
pro hac vice & Shanon J. Carson , Berger Montague, PC, pro hac
vice.
TrainingWheel Corporation, LLC, also known as TrainingWheel, Inc.,
Defendant, represented by Conor Foley, Jason L. Gunter, PA, Jason
L. Gunter -- jason@gunterfirm.com -- GunterFirm & Victor Bermudez,
GunterFirm.
TREVENA INC: Continues to Defend Consolidated Class Suit in PA
--------------------------------------------------------------
Trevena, Inc. said in its Form 10-Q Report filed with the
Securities and Exchange Commission on May 10, 2019, for the
quarterly period ended March 31, 2019, that the company continues
to defend a consolidated class action suit in the U.S. District
Court for the Eastern District of Pennsylvania.
In October and November 2018, the company and certain of its
current and former officers and directors were sued in three
purported class actions filed in the U.S. District Court for the
Eastern District of Pennsylvania.
In each case, the plaintiffs allege that we and the officers made
false and misleading statements in violation of federal securities
laws regarding the company's business, operations, and prospects,
including certain statements made relating to its End-of-Phase 2
meeting with the FDA.
The plaintiffs seek, among other remedies, unspecified damages,
attorneys' fees and other costs.
In January 2019, the three lawsuits were consolidated into one
action. On March 6, 2019, the District Court held a hearing to
appoint the lead plaintiff and lead counsel, and a consolidated
amended complaint will be filed after such appointments are made.
Trevena said, "We believe that the lawsuits are without merit, and
we intend to vigorously defend ourselves against the allegations.
Trevena, Inc., a biopharmaceutical company, focuses on the
development and commercialization of treatment options that target
and treat diseases affecting the central nervous system. The
company was founded in 2007 and is headquartered in Chesterbrook,
Pennsylvania.
TRUEACCORD LLC: Russo Files FCRA Suit in E.D. Pennsylvania
----------------------------------------------------------
A class action lawsuit has been filed against TRUEACCORD LLC. The
case is styled as JAMES D. RUSSO, individually and on behalf of all
other persons similarly situated consumers, Plaintiff v. TRUEACCORD
LLC, Defendant, Case No. 2:19-cv-02522-MAK (E.D. Pa., June 10,
2019).
The Plaintiff filed the case under the Fair Credit Reporting Act.
TrueAccord LLC provides debt recovery services. The Company offers
platform that bridges the gap between the creditor and those in
debt.[BN]
The Plaintiff is represented by:
NICHOLAS J. LINKER, ESQ.
ZEMEL LAW LLC
1373 Broad St., SUITE 203-C
Clifton, NJ 07013
Phone: (862) 227-3106
Email: nl@zemellawllc.com
TRUECAR INC: Appeal in Gordon Rose Class Action Pending
-------------------------------------------------------
TrueCar, Inc. said in its Form 10-Q Report filed with the
Securities and Exchange Commission on May 10, 2019, for the
quarterly period ended March 31, 2019, that the appeal from the
court's decision in the class action suit initiated by Gordon Rose
is still pending.
On December 23, 2015, the Company was named as a defendant in a
putative class action lawsuit filed by Gordon Rose in the
California Superior Court for the County of Los Angeles.
The complaint asserted claims for unjust enrichment, violation of
the California Consumer Legal Remedies Act and violation of the
California Business and Professions Code, based principally on
factual allegations similar to those asserted in the NY Lanham Act
Litigation and the CNCDA Litigation. The complaint sought an award
of unspecified damages, interest, disgorgement, injunctive relief
and attorney's fees.
In the complaint, the plaintiff sought to represent a class of
California consumers defined as "all California consumers who
purchased an automobile by using TrueCar, Inc.'s price certificate
during the applicable statute of limitations."
On January 12, 2016, the court entered an order staying all
proceedings in the case pending an initial status conference, which
was scheduled for April 13, 2016. On March 16, 2016, the case was
reassigned to a different judge. As a result of that reassignment,
the initial status conference was rescheduled for and held on May
26, 2016.
By stipulation, the stay of discovery was continued until a second
status conference, which was scheduled for October 12, 2016. On
July 13, 2016, the plaintiff amended his complaint. The amended
complaint continues to assert claims for unjust enrichment,
violation of the California Consumer Legal Remedies Act and
violation of the California Business and Professions Code.
The amended complaint retains the same proposed class definition as
the initial complaint. Like the initial complaint, the amended
complaint seeks an award of unspecified damages, punitive and
exemplary damages, interest, disgorgement, injunctive relief and
attorney's fees.
On September 12, 2016, the Company filed a demurrer to the amended
complaint. On October 12, 2016, the court heard oral argument on
the demurrer. On October 13, 2016, the court granted in part and
denied in part the Company's demurrer to the amended complaint,
dismissing the unjust enrichment claim but declining to dismiss the
balance of the claims at the demurrer stage of the litigation.
At a status conference held on January 26, 2017, the court ruled
that discovery could then proceed regarding matters related to
class certification only. At a status conference held on July 25,
2017, the court set a deadline of January 8, 2018 for the filing of
the plaintiff's motion for class certification and provided that
discovery could continue to proceed regarding matters related to
class certification only at that time.
Subsequently, the court extended to February 7, 2018 the deadline
for the filing of plaintiff’s motion for class certification and
for the completion of related discovery. On February 7, 2018, the
plaintiff filed a motion for class certification. The court held a
hearing on the plaintiff's class certification motion on July 12,
2018 and denied the motion on July 27, 2018.
On September 26, 2018, the plaintiff filed a notice of appeal and
proceedings in the trial court have been stayed pending the
resolution of the appeal.
TrueCar said, "The Company believes that the amended complaint is
without merit, and it intends to vigorously defend itself in this
matter. The Company has not recorded an accrual related to this
matter as of March 31, 2019 as the Company does not believe a loss
is probable or reasonably estimable."
TrueCar, Inc., together with its subsidiaries, operates as an
Internet-based information, technology, and communication services
company in the United States. It operates its platform on the
TrueCar Website and mobile applications. The company was formerly
known as Zag.com Inc. TrueCar, Inc. was founded in 2005 and is
headquartered in Santa Monica, California.
TURTLE CREEK: Williams Files FDCPA Suit in S.D. Mississippi
-----------------------------------------------------------
A class action lawsuit has been filed against Turtle Creek Assets,
LTD. et al. The case is styled as Lamarcus Williams on behalf of
himself and all others similarly situated, Plaintiff v. Turtle
Creek Assets, LTD., Gordon Engle, an Individual, Defendants, Case
No. 5:19-cv-00054-DCB-MTP (S.D. Miss., June 10, 2019).
The Plaintiff filed the case under the Fair Debt Collection
Practices Act.
Turtle Creek Assets, Ltd. was founded in 2004. The Company's line
of business includes providing various business services.[BN]
The Plaintiff is represented by:
Shireen Hormozdi, Esq.
HORMOZDI LAW FIRM, LLC
1770 Indian Trail Lilburn Road, Suite 175
Norcross, GA 30093
Phone: (678) 394-7795
Fax: (866) 395-0967
Email: shireen@norcrosslawfirm.com
TYSON FOODS: Cattle Price-Fixing Class Action Filed in Minnesota
----------------------------------------------------------------
DTN reports that the nation's largest meatpackers face a second
class-action lawsuit alleging conspiracy to drive down cattle
prices. The suit was filed in federal court by a Fort Lauderdale,
Florida-based live cattle futures trader.
The plaintiff, Michael Sevy, alleges in a lawsuit filed in the U.S.
District Court for the District of Minnesota that at least since
January 2015, meatpackers have been conspiring to drive down
prices.
A similar lawsuit filed by the Ranchers-Cattlemen Action Legal Fund
United Stockgrowers of America (R-CALF USA) in the U.S. District
Court of the Northern District of Illinois on behalf of four
cattle-feeding ranchers in Iowa, Nebraska, Kansas and Wyoming, was
voluntarily dismissed by R-CALF USA and then refiled in the
Minnesota court.
When contacted by DTN, R-CALF CEO Bill Bullard would not comment on
why the lawsuit was moved. The attorney for R-CALF also did not
respond to DTN's request for comment.
Both lawsuits allege the nation's largest meatpacking companies
engaged in fed-cattle price fixing, unjustly enriched their
businesses, manipulated the prices of fed cattle and, as a result,
the Chicago Mercantile Exchange live cattle futures and options,
and committed a number of violations of the Commodity Exchange Act,
among other allegations.
Named in the lawsuits are Tyson Foods Inc., Tyson Fresh Meats Inc.,
JBS S.A., JBS USA Food Company, Swift Beef Company, JBS Packerland
Inc., Cargill Inc., Cargill Meat Solutions Corp., Marfrig Global
Foods S.A., and National Beef Packing Company LLC. In addition, the
lawsuits also name 10 unidentified cattle futures and options
traders who trade on the Chicago Mercantile Exchange.
According to Sevy's lawsuit, he would be able to identify the 10
traders through trading records from the CME.
In his lawsuit, Sevy claims that, as a live cattle futures trader,
he "suffered damages from a manipulated live cattle futures and
options market. Plaintiff suffered monetary losses by transacting
in live cattle futures and options at artificial prices directly
resulting from packing defendants' conduct, including their
suppression of fed cattle prices."
Similar to the R-CALF lawsuit, Sevy alleges that beginning on "at
least" Jan. 1, 2015, and continuing today, "packing defendants
engaged in a continuing agreement, understanding and conspiracy in
an unreasonable and unlawful restraint of trade to allocate the
market for, and artificially fix, depress, suppress, or stabilize
the price of fed cattle."
His lawsuit alleges the companies' conduct had the effect of
"manipulating the prices of live cattle futures and/or option
contracts traded on the CME" in violation of the Sherman Act.
"Against this backdrop, fed cattle prices increased steadily
between 2009 and 2014 in response to strong beef demand and a
shortage of fed cattle following the droughts of 2011 through
2013," Sevy's lawsuit said. "After prices peaked in November 2014,
the industry expected the price of fed cattle to stabilize in 2015
and continue at or around that level for a number of years.
"This widely predicted price stability did not occur. Instead,
packing defendants used their market power, price sensitivities,
and the thin cash cattle trade to their advantage and embarked upon
a conspiracy to depress fed cattle prices."
As is the case with the R-CALF lawsuit, Sevy's action requests a
trial by jury and seeks punitive damages and restitution.
In a statement to DTN, Cargill said it denies the claims in Sevy's
lawsuit.
"For many years, Cargill has served as a trusted partner to
American cattle ranchers, committed to supporting their family
farms and livelihoods," the company said. "We believe the claims
lack merit, and we are confident in our efforts to maintain market
integrity and conduct ethical business."
A spokesperson for Marfrig told DTN the company would not comment,
as it had not officially been notified of the lawsuit.
Other companies named in the new lawsuit did not respond to DTN's
request for comment.
In its lawsuit, R-CALF USA alleges the packers conspired to
"suppress the price of fed cattle that they purchased in the United
States," beginning on Jan. 1, 2015, and continuing to the present.
Both lawsuits said fed-cattle prices increased steadily between
2009 and 2014, as a result of demand and a shortage in fed cattle
following the droughts of 2011 through 2013.
Then, after prices peaked in November 2014, the cattle industry
expected fed-cattle prices to stabilize in 2015 and continue around
that level for a number of years. Instead, that did not occur.
[GN]
U.S. HEALTHWORKS: Averts Class Action Over Background Checks
------------------------------------------------------------
Law360 reports that a California federal judge has ended a proposed
class action accusing health care provider U.S. Healthworks Inc. of
obtaining background checks on job applicants without properly
informing them, saying the former employee behind the case should
have filed it sooner. [GN]
UNITED AIRLINES: Faces Ward Suit Over Wage and Hour Violations
--------------------------------------------------------------
CHARLES E. WARD, FELICIA VIDRIO and PAUL BRADLEY, individually, and
on behalf of all others similarly situated v. UNITED AIRLINES,
INC., and Does 1 through 25, inclusive, Case No. CGC-19-575737
(Cal. Super., San Francisco Cty., April 26, 2019), is brought for
the Defendants' alleged violations of California's wage and hour
laws stemming from these uniform policies:
(1) pilots and flight attendants are required to perform
pre-flight duties without compensation; and
(2) pilots and flight attendants, who work on-call in "reserve
status," perform such work without compensation, despite
being subject to the extensive control of the Defendants.
The Defendants are in the business of air transportation and
conduct this business throughout the United States, including the
state of California. The Plaintiffs are ignorant of the true
names, capacities, relationships, and extent of participation in
the conduct alleged herein, of the Doe Defendants.[BN]
The Plaintiffs are represented by:
Kirk D. Hanson, Esq.
LAW OFFICES OF KIRK D. HANSON
2790 Truxtun Rd., Suite 140
San Diego, CA 92106
Telephone: (619) 523-1992
Facsimile: (619) 523-9002
E-mail: Hansonlaw@cox.net
- and -
Jeffrey C. Jackson, Esq.
LAW OFFICES OF JEFFREY C. JACKSON
2790 Truxtun Rd., Suite 140
San Diego, CA 92106
Telephone: (619) 523-9001
Facsimile: (619) 523-9002
VENKY'S FOOD: Socop Sues Over Denied Pay Slips, Overtime Pay
------------------------------------------------------------
Andres Yaqui Socop, Pedro De La Luz Martinez, Porfidio Mutzutz
Xiquin and Santos Castillo, individually and on behalf of others
similarly situated, Plaintiff, v. Venky's Food Corp. and Rita
Sabharwal, Defendants, Case No. 19-cv-04631 (S.D. N.Y., May 20,
2019), seeks to recover unpaid minimum and overtime wages and
redress for failure to provide itemized wage statements pursuant to
the Fair Labor Standards Act of 1938 and New York Labor Law,
including applicable liquidated damages, interest, attorneys' fees
and costs.
Defendants own, operate, or control an Indian restaurant, located
at 1593 Second Avenue, New York, New York 10028 under the name "Om
Real Indian Food" where Plaintiffs have been employed as delivery
workers, dish washers and food preparers. They claim to have spent
more than 20% of their time performing non-tipped duties for
Defendant such as opening and closing the restaurant, rolling
silverware, performing side work, and other non-tipped duties,
which usually is in excess of forty hours per week but did not
receive overtime pay for this. [BN]
Plaintiff is represented by:
Michael Faillace, Esq.
MICHAEL FAILLACE & ASSOCIATES, P.C.
60 East 42nd Street, Suite 4510
New York, NY 10165
Tel: (212) 317-1200
Email: Faillace@employmentcompliance.com
VERIZON COMMUNICATIONS: Kaufman Alleges Wrongful Debt Collections
-----------------------------------------------------------------
JESSE KAUFMAN, individually and on behalf of all others similarly
situated, Plaintiff v. VERIZON COMMUNICATIONS, INC.; JOHN DOE; and
DOES 1-X, Defendants, Case No. RG19021474 (Cal. Super., Alameda
Cty., May 31, 2019) seeks to stop the Defendant's unfair and
unconscionable means to collect a debt.
Verizon Communications Inc. is an integrated telecommunications
company that provides wire line voice and data services, wireless
services, Internet services, and published directory information.
The Company also provides network services for the federal
government including business phone lines, data services,
telecommunications equipment, and payphones. [BN]
The Plaintiff is represented by:
S. Chandler Visher, Esq.
268 Bush St., Suite 4500
San Francisco, CA 94104
Telephone: (415) 901-0500
Facsimile: (415) 901-0504
- and –
Alan M. Kaufman, Esq.
369 Pine Street, Suite 218
San Francisco, CA 94104
Telephone: (415) 956-7770
Facsimile: (415) 956-7773
E-mail: alan@kaufmanlawsf.com
VERMONT: West Moves to Certify Class of Inmates With Chronic HCV
----------------------------------------------------------------
The Plaintiffs in the lawsuit titled RICHARD WEST and JOSEPH
BRUYETTE, individually and on behalf of a class of similarly
situated persons v. AL GOBEILLE, Vermont Secretary of Human
Services, MARTHA MAKSYM, Vermont Deputy Secretary of Human
Services, MICHAEL TOUCHETTE, Vermont Department of Corrections
Commissioner, BENJAMIN WATTS, Vermont Department of Corrections
Health Services Director, in their official capacities, and
CENTURION OF VERMONT, LLC, Case No. 2:19-cv-00081-wks (D. Vt.),
move the Court for an order certifying a Proposed Class that
includes all persons:
i. Who are, or will be, in the legal custody of the Vermont
Department of Corrections regardless of facility
location; and
ii. Who have been incarcerated for at least 14 days or who
have completed their Initial Healthcare Receiving
Screening, whichever occurs first; and
iii. Who have been diagnosed with a chronic HCV, and are
candidates for DAA treatment as per the standard of care;
and
iv. For whom DAA treatment has been or will be denied or
withheld based on considerations that deviate from the
medical standard of care, including, but not limited to:
time left before release from DOC custody or indefinite
release date, a disciplinary record, a history of
substance abuse or mental health issues, the acquisition
of tattoos while incarcerated, disease severity
considerations, or other unnecessary treatment criteria.
The Vermont Agency for Human Services (AHS), Vermont Department of
Corrections (DOC), and contracted health care provider Centurion of
Vermont, LLC (Centurion) are systematically denying or withholding
medical treatment to hundreds of people with chronic Hepatitis C
(chronic HCV) in the legal custody of DOC, the Plaintiffs allege.
The Plaintiffs contend that they and the putative class face a
byzantine bureaucracy that refuses them necessary lifesaving
treatment, without medical justification, for the Defendants'
purpose of saving money.
The Plaintiffs also ask the Court to appoint them as class
representatives, and to appoint their counsel as class
counsel.[CC]
The Plaintiffs are represented by:
James M. Diaz, Esq.
Lia Ernst, Esq.
ACLU FOUNDATION OF VERMONT
90 Main Street, Suite 200
Montpelier, VT 05602
Telephone: (802) 223-6304
E-mail: jdiaz@acluvt.org
lemst@acluvt.org
- and -
James Valente, Esq.
COSTELLO, VALENTE & GENTRY, P.C.
51 Putney Road
Brattleboro, VT 05301
Telephone: (802) 257-5533
E-mail: valente@cvglawoffice.com
- and -
Kevin Costello, Esq.
CENTER FOR HEALTH LAW & POLICY INNOVATION
Harvard Law School
1585 Massachusetts Avenue
Cambridge, MA 02138
Telephone: (617) 496-0901
E-mail: kcostello@law.harvard.edu
WASTE MANAGEMENT: Texas Court Moves 5 FLSA Suits to Home States
---------------------------------------------------------------
Judge Lee H. Rosenthal of the U.S. District Court for Southern
District of Texas, Houston Division, granted Waste Management's
motion to transfer these cases, NICHOLAS AYALA, Plaintiff, v. WASTE
MANAGEMENT OF ARIZONA, INC., Defendant. JAMES BOGDEN, Plaintiff, v.
WASTE MANAGEMENT OF COLORADO, INC., Defendant. MARK ABLES,
Plaintiff, v. WASTE MANAGEMENT, INC. OF TENNESSEE, Defendant.
REYNOLD VICENTE, Plaintiff, v. WASTE MANAGEMENT OF CALIFORNIA,
INC., Defendant. ERWIN RUEMMELE, Plaintiff, v. WASTE MANAGEMENT,
INC. OF FLORIDA, Defendant, Civil Action Nos. H-19-196, H-19-198,
H-19-199, H-19-218, H-19-220 (S.D. Tex.), to district courts in
each of the five Plaintiffs' home state.
In June 2018, several truck drivers sued Waste Management, alleging
that they were not paid for overtime in violation of the Fair Labor
Standards Act. The Plaintiffs contended that they routinely worked
more than 40 hours each week without overtime pay. They alleged
that Waste Management adopted a policy to automatically deduct 30
minutes from the Plaintiffs' daily worktime as "meal breaks," even
if they did not take the breaks and continued driving their routes
for all or part of the 30-minute period. According to them, Waste
Management violated the FLSA by failing to compensate them for the
two and a half hours or more each week they worked during these
meal breaks. They asked for overtime wages, liquidated damages,
attorneys' fees, and costs.
The Court denied the Plaintiffs' motion for nationwide
collective-action certification and dismissed the non-Texas
drivers' claims without prejudice. Drivers in Arizona, California,
Colorado, Florida, and Tennessee then filed five separate lawsuits
in the Southern District of Texas, each alleging FLSA claims on
behalf of drivers working for Waste Management in these five
states.
The cases are: (i) Carlos Ayala v. Waste Management of Arizona,
Inc., H-19-196; (ii) James Bogden v. Waste Management of Colorado,
Inc., H-19-198; (iii) Mark Ables v. Waste Management, Inc. of
Tennessee, H-19-199; (iv) Reynold F. Vicente v. Waste Management of
California, Inc., H-19-218; and (v) Erwin Ruemmele v. Waste
Management, Inc. of Florida, H-19-220.
Waste Management and its subsidiaries and affiliates have moved to
transfer these cases to the district courts in the Plaintiffs' five
home states and proceed in the district with the case involving
only Texas drivers. Waste Management argues that transfer is
proper on the same ground the Court identified in declining to
certify a nationwide collective action -- that the Plaintiffs were
not similarly situated across the states. Waste Management also
argues that the evidence and witnesses relating to claims the
non-Texas drivers asserted are in Waste Management's regional
offices and facilities where these drivers worked, not in Texas.
Judge Rosenthal finds that the four private-interest factors each
weighs in favor of allowing transfer, including (i) the ease of
access to sources of proof; (ii) the availability of compulsory
process over witnesses; and (iii) the relative convenience of the
witnesses. One public-interest factor favors transfer, one favors
transferring three cases, and one is neutral. Waste Management has
shown that district courts in Arizona, Colorado, California,
Florida, and Tennessee are clearly more convenient forums than the
Court. He granted Waste Management's motions to transfer, (Case
No. 19-196, Docket Entry No. 16; Case No. H-19-198, Docket Entry
No. 18; Case No. H-19-199, Docket Entry No. 10; Case No. H-19-218,
Docket Entry No. 19; and Case No. H-19-220, Docket Entry No. 20).
Accordingly, he transferred: (i) Carlos Ayala v. Waste Management
of Arizona, Inc., No. H-19-196, to the District of Arizona; (ii)
James Bogden v. Waste Management of Colorado, Inc., No. H-19-198,
to the District of Colorado; (iii) Mark Ables v. Waste Management,
Inc. of Tennessee, No. H-19-199, to the Western District of
Tennessee; (iv) RReynold F. Vicente v. Waste Management of
California, Inc., No. H-19-218, to the Central District of
California; and (v) Erwin Ruemmele v. Waste Management, Inc. of
Florida, No. H-19-220, to the Middle District of Florida.
A full-text copy of the Court's May 10, 2019 Memorandum and Opinion
is available at https://is.gd/ZanKST from Leagle.com.
Reynold Vicente, Plaintiff, represented by William Clifton
Alexander -- clif@a2xlaw.com -- Anderson Alexander, PLLC.
Waste Management of California, Inc., Defendant, represented by
John A. Ybarra -- jybarra@littler.com -- Littler Mendelson PC, Abby
L. Bochenek -- abochenek@littler.com -- Littler Mendelson PC, Leila
Camille Clewis -- lclewis@littler.com -- Littler Mendelson, P.C. &
Matthew J. Ruza -- mruza@littler.com -- Littler Mendelson, P.C..
WELLS FARGO: FHFA Says Disclosures over NovaStar Bonds Misleading
-----------------------------------------------------------------
FEDERAL HOUSING FINANCE AGENCY, IN ITS CAPACITY AS CONSERVATOR OF
THE FEDERAL HOME LOAN MORTGAGE CORPORATION, the Plaintiff, v. WELLS
FARGO SECURITIES, LLC, f/k/a WACHOVIA CAPITAL MARKETS, LLC,
Defendant, Case No. 1:19-cv-05207 (S.D.N.Y., June 3, 2019), targets
Defendant's false and misleading statements and omissions contained
in certain registration statements filed with the Securities and
Exchange Commission, pursuant to which Freddie Mac purchased
certain residential mortgage-backed securities ("RMBS")
underwritten by Wells Fargo and others.
Among other things, the registration statements falsely represented
that the mortgage loans underlying the RMBS complied with certain
underwriting guidelines and standards, and presented a false
picture of the characteristics and riskiness of those loans.
These representations were material to Freddie Mac, as they would
have been to any reasonable investor, and their falsity violates
Section 11 of the Securities Act of 1933, 15 U.S.C. section 77k. As
a joint lead manager and underwriter for the RMBS issuances, Wells
participated in the drafting and/or dissemination of the false and
misleading registration statements, was responsible for conducting
due diligence on the registration statements and ensuring the
accuracy of the representations contained therein, and is now
liable under Section 11 for the damages Freddie Mac suffered by
virtue of the false registration statements.
As part of its investment portfolio, Freddie Mac purchased
certificates from the senior AAA-rated tranche 1 of offerings of
certain "private label" RMBS ("PLS"). In 2006, NovaStar Mortgage,
LLC, f/k/a NovaStar Mortgage, Inc. ("NMI"), sponsored several
issuances of PLS, including the NovaStar Mortgage Funding Trust,
Series 2006-3 (the "NovaStar 2006-3 Trust"), that issued the
NovaStar Home Equity Loan Asset-Backed Certificates, Series 2006-3
(the "NHEL 2006-3 Certificates"), and the NovaStar Mortgage Funding
Trust, Series 2006-6 (the "NovaStar 2006-6 Trust"), that issued the
NovaStar Home Equity Loan Asset-Backed Certificates, Series 2006-6
(the "NHEL 2006-6 Certificates"). In 2006, Freddie Mac purchased
bonds from the senior, AAA-rated tranches of the NHEL Certificates:
CUSIP 66988WAA4 from the A-1A tranche of the NHEL 2006-3
Certificates and CUSIP 66988RAA5 from the A-1A tranche of the NHEL
2006-6 Certificates (together, the "NovaStar Bonds"). Freddie Mac
still holds those NovaStar Bonds, which, together, had an original
face value in excess of $1 billion.
The registration statements for the NHEL Certificates consisted of
a "Shelf Registration Statement," a "Prospectus," and a "Prospectus
Supplement" filed with the SEC. The Registration Statements
contained representations concerning, among other things, the
characteristics and credit quality of the mortgage loans underlying
the NHEL Certificates, the creditworthiness of the borrowers on
those underlying mortgage loans, and the origination and
underwriting practices used to make and approve the loans. Such
representations were material to a reasonable investor's decision
to invest in the NHEL Certificates and they were material to
Freddie Mac's decision to purchase the NovaStar Bonds.
Unbeknownst to Freddie Mac, many of those representations were
materially false because, among other reasons, many of the
underlying mortgage loans were not originated in accordance with
the represented underwriting standards and origination practices,
and did not have the credit quality and other characteristics
represented in the Registration Statements. Among other things,
the Registration Statements represented that "[a]ll of the mortgage
loans" in the NovaStar Trusts "were originated or purchased by
[NMI]" and that all such loans were originated pursuant to NMI's
guidelines. The Registration Statements falsely represented that
those guidelines were followed except in specified circumstances,
when in fact the guidelines were systematically disregarded.
According to the complaint, a forensic review of statistically
significant representative samples of 100 loan files from the
NovaStar 2006-3 Trust and 456 loan files from the NovaStar 2006-6
Trust has revealed that, contrary to the representations in the
Registration Statements, the vast majority of loans reviewed did
not adhere to NMI's underwriting guidelines. For example, the files
for many loans: (i) lack documentation necessary to underwrite the
loan properly; (ii) include an invalid, incomplete, or unsupported
appraisal; (iii) evidence the loan underwriter's failure to confirm
the reasonableness of the borrower's stated income; or (iv) reflect
that the borrower's income, FICO score, debt, debt-to-income ratio
("DTI"), or loan-to-value ("LTV") ratio are outside the range
permitted under NMI's guidelines. Adherence to underwriting
guidelines, particularly on criteria bearing on loan eligibility,
is a material consideration to reasonable investors. Material
discrepancies from underwriting guidelines are very serious, and
investors should have been notified of the inclusion in the
NovaStar Trusts of loans that failed to comply with NMI's
guidelines.
Wells utterly failed in its legal obligation to ensure the accuracy
of the NHEL Certificates' Registration Statements. To the extent
Wells conducted any due diligence at all on the NovaStar Trusts,
the NHEL Certificates, and/or the Registration Statements, Wells
neither believed nor had any basis from that due diligence to
believe in the accuracy of the Registration Statements'
representations, including whether the ratings supplied by the
credit rating agencies were justified by the subordination levels
based upon those representations. The Registration Statements for
the NHEL Certificates were false and Wells is liable as a matter of
law for their falsity.
The Registration Statements' misstatements and omissions of
material facts have caused large financial losses to Freddie Mac.
As the truth concerning the misrepresented and omitted facts came
to light, and as the hidden risks materialized, the market value of
the NovaStar Bonds that Freddie Mac purchased declined. FHFA, as
Conservator for Freddie Mac, now seeks damages from Wells for the
losses Freddie Mac has suffered, the lawsuit says.[BN]
Attorneys for the Plaintiff:
Christopher P. Johnson, Esq.
Kyle A. Lonergan, Esq.
H. Lawrence Stierhoff, Esq.
Drew B. Hollander, Esq.
MCKOOL SMITH, LLP
ONE BRYANT PARK, 47th Floor
New York, NY 10036
Telephone: (212) 402 9400
E-mail: cpjohnson@mckoolsmith.com
klonergan@mckoolsmith.com
lstierhoff@mckoolsmith.com
dhollander@mckoolsmith.com
WEWORK WELLNESS: Olsen Files ADA Suit in S.D. New York
------------------------------------------------------
A class action lawsuit has been filed against WeWork Wellness LLC.
The case is styled as Thomas J. Olsen, individually and on behalf
of all other persons similarly situated, Plaintiff v. WeWork
Wellness LLC, Defendant, Case No. 1:19-cv-05427 (S.D. N.Y., June
10, 2019).
The Plaintiff filed the case under the Americans with Disabilities
Act.
WeWork is an American company that provides shared workspaces for
technology startup subculture communities, and services for
entrepreneurs, freelancers, startups, small businesses and large
enterprises.[BN]
The Plaintiff is represented by:
Christopher Howard Lowe, Esq.
Lipsky Lowe LLP
630 Third Avenue
New York, NY 10017-6705
Phone: (212) 392-4772
Fax: (212) 444-1030
Email: chris@lipskylowe.com
WILL COUNTY, IL: Dunn Seeks to Certify Detainees Class, Subclasses
------------------------------------------------------------------
The Plaintiff in the lawsuit entitled ANDREA DUNN, on behalf of
herself and all others similarly situated v. COUNTY OF WILL and
MIKE KELLEY, Sheriff of Will County, individually and in his
official capacity, Case No. 1:18-cv-06304 (N.D. Ill.), seeks to
certify these class and subclasses:
* Class:
All persons detained in the Will County Adult Detention
Facility in booking cells between September 17, 2016, and
the present;
* Subclass 1:
All those persons in the class detained overnight in the
Will County Adult Detention Facility in booking cells; and
* Subclass 2:
All those persons in the class arrested without a warrant
and detained over 48 hours in the Will County Adult
Detention Facility in booking cells awaiting a
probable-cause hearing.
The Plaintiff also asks the Court under Rule 23 of the Federal
Rules of Civil Procedure to appoint her as the class
representative, and to appoint Heffner Hurst and the Law Office of
Jordan Marsh, LLC as class counsel.
Ms. Dunn is one of many people whom have been arrested without a
warrant in Will County and detained at the Will County Adult
Detention Facility while awaiting probable-cause hearings, the
Plaintiff contends. She alleges that the Defendants systematically
violate the Fourth Amendment of the U.S. Constitution by detaining
warrantless arrestees in unreasonable conditions and for
unreasonable lengths of time at the ADF.[CC]
The Plaintiff is represented by:
Matthew T. Heffner, Esq.
Matthew T. Hurst, Esq.
HEFFNER HURST
30 N. LaSalle, Suite 1210
Chicago, IL 60602
Telephone: (312) 346-3466
E-mail: mheffner@heffnerhurst.com
- and -
Jordan Marsh, Esq.
LAW OFFICES OF JORDAN MARSH, LLC
55 East Monroe St., Suite 3800
Chicago, IL 60603
Telephone: (312) 401-5510
E-mail: jordan@jmarshlaw.com
WILLIAMS-SONOMA: Faces Migyanko ADA Suit in W.D. Pennsylvania
-------------------------------------------------------------
A class action lawsuit has been filed against Williams-Sonoma, Inc.
The case is captioned RONALD J. MIGYANKO individually and on behalf
of all others similarly situated, the Plaintiff, vs.
WILLIAMS-SONOMA, INC. doing business as: WILLIAMS SONOMA, the
Defendant, Case No. 2:19-cv-00610-MJH (W.D. Pa., May 24, 2019). The
suit alleges Americans with Disabilities Act violation. The case is
assigned to the Hon. Judge Marilyn J. Horan.
Williams-Sonoma, Inc., is an American publicly traded consumer
retail company that sells kitchenwares and home furnishings. It is
headquartered in San Francisco, California, United States. It is
one of the largest e-commerce retailers in the U.S., and one of the
biggest multi-channel specialty retailers in the world.[BN]
Attorneys for the Plaintiff:
R. Bruce Carlson, Esq.
CARLSON LYNCH, LLP
1133 Penn Avenue, 5th Floor
Pittsburgh, PA 15222
Telephone: (412) 322-9243
E-mail: bcarlson@carlsonlynch.com
YANKEE CANDLE: Faces Bone Suit in District of Massachusetts
-----------------------------------------------------------
A class action lawsuit has been filed against The Yankee Candle
Company, Inc. The case is captioned as BARBARA BONE, individually
and on behalf of all others similarly situated, Plaintiff v. THE
YANKEE CANDLE COMPANY, INC., Defendant, Case No. 3:19-cv-30074-MGM
(D. Mass., May 31, 2019). The case is assigned to Judge Mark G.
Mastroianni.
The Yankee Candle Company, Inc. designs, manufactures, wholesales,
and retails scented candles. The Yankee Candle Company, Inc. was
founded in 1969 and is based in South Deerfield, Massachusetts with
a location in Williamsburg, Virginia. As of October 3, 2013, The
Yankee Candle Company, Inc. operates as a subsidiary of Newell
Brands Inc. [BN]
The Plaintiff is represented by:
Kevin M. Kinne, Esq.
COHEN KINNEVALICENTI& COOK, LLP
28 North Street, 3rd Floor
Pittsfield, MA 01201
Telephone: (413) 443-9399
Facsimile: (413) 442-9399
E-mail: kinne@cohenkinne.com
YELP INC: Securities Class Action Ongoing in California
--------------------------------------------------------
Yelp Inc. said in its Form 10-Q Report filed with the Securities
and Exchange Commission on May 10, 2019, for the quarterly period
ended March 31, 2019, that the company continues to defend a class
action suit in the U.S. District Court for the Northern District of
California.
In January 2018, a putative class action lawsuit alleging
violations of the federal securities laws was filed in the U.S.
District Court for the Northern District of California, naming as
defendants the Company and certain of its officers.
The complaint, which the plaintiff amended on June 25, 2018,
alleges violations of the Exchange Act by the Company and its
officers for allegedly making materially false and misleading
statements regarding its business and operations on February 9,
2017.
The plaintiff seeks unspecified monetary damages and other relief.
On August 2, 2018, the Company and the other defendants filed a
motion to dismiss the amended complaint, which the court granted in
part and denied in part on November 27, 2018. The case remains
pending.
Yelp said, "Due to the preliminary nature of this lawsuit, the
Company is unable to reasonably estimate either the probability of
incurring a loss or an estimated range of such loss, if any, from
the lawsuit."
Yelp Inc. operates a platform that connects consumers with local
businesses in the United States, Canada, and internationally. Yelp
Inc. was founded in 2004 and is headquartered in San Francisco,
California.
ZALE DELAWARE: Fails to Pay Proper Wages, Leos Suit Claims
----------------------------------------------------------
CAROLINA LEOS, individually and on behalf of all others similarly
situated, Plaintiff v. ZALE DELAWARE, INC.; and DOES 1 to 100,
Defendants, Case No. 19STCV18846 (Cal. Super., Los Angeles Cty.,
May 30, 2019) is an action against the Defendants for unpaid
regular hours, overtime hours, minimum wages, wages for missed meal
and rest periods.
The Plaintiff Leos was employed by the Defendants as non-exempt
employee.
Zale Delaware, Inc., doing business as Piercing Pagoda, operates a
network of jewelry retail kiosks in various shopping malls in the
United States and Puerto Rico. It offers gold, silver, diamond, and
gemstone jewelry that include earrings, necklaces, bracelets,
rings, and body jewelry. The company also provides gift services,
eGift cards, and gift cards. It offers jewelry for men, women, and
children. In addition, it serves customers online. The company was
founded in 1969 and is based in Irving, Texas. Zale Delaware, Inc.
operates as a subsidiary of Zale Corporation. [BN]
The Plaintiff is represented by:
Joseph Lavi, Esq.
Jordan D. Bello, Esq.
Vincent Granberry, Esq.
LAVI & EBRAHIMIAN, LLP
8889 W. Olympic Blvd., Suite 200
Beverly Hills, CA 90211
Telephone: (310) 432-0000
Facsimile: (310) 432-0001
E-mail: jlavi@lelawfirm.com
jbello@lelawfirm.com
- and -
Sahag Majarian II, Esq.
LAW OFFICES OF SAHAG MAJARIAN II
18250 Ventura Boulevard
Tarzana, CA 91356
Telephone: (818) 609-0807
Facsimile: (818) 609-0892
E-mail: sahagii@aol.com
[*] South Africa Likely Ripe for Climate Change Class Action
------------------------------------------------------------
Brandon Abdinor, writing for Daily Maverick, reports that the
Netherlands is currently the site of the world's most advanced
class action climate change lawsuit, with 900 citizens partnered
with the Urgenda Foundation winning battle after battle in the
courts as the Dutch government appeals each loss. Similar actions
are well underway in Canada, Ireland, the UK and the US. Is this
something that will become necessary in South Africa, and what
would it entail?
The 2018 version of the UN's IPCC report warned that we have just
12 years to limit devastating climate change. That means we need to
pull out all the stops, and will inevitably include approaching the
courts to compel reluctant agencies to align with this need.
South Africans can be forgiven for having doubts that there is
sufficient political will to tackle the issue with any serious
intent. This publication and various other forums saw a dissection
of a number of political party manifestos leading up to the
recently concluded 2019 elections. The understanding of, and
commitment to, tackling climate change was at the very least
deficient, and in some cases displayed a disturbing
misunderstanding of the science.
While the issue receives negligible attention in headlining
speeches and policy statements from the state, developments that
take us in the opposite direction, such as the recent offshore gas
find, are trumpeted as game-changing boons.
Class action lawsuits in South Africa
Our legal system does not have a well-developed or time-tested
class action jurisprudence compared with some other countries. It
was only with the introduction of our new Constitution that rights
to this type of action became formulated. S38(c) provides that
"anyone acting as a member of, or in the interest of, a group or
class of persons" may approach the court for redress for an
infringement of the rights contained in the Bill of Rights.
This, of course, includes S24 which gives citizens the right to an
environment which is not harmful to health and wellbeing. It also
protects the environment for the benefit of present and future
generations.
The jurisprudence was fleshed out in a 2012 Supreme Court of
Appeals case where certain factors for certification of a class
action were laid out, including:
* A cause of action raising a triable issue;
* That the right to relief depends upon the determination of
issues of fact or law, or both, common to all members of the
class;
* That the relief sought, or damages claimed, flow from the
cause of action and are ascertainable and capable of
determination;
* That where the claim is for damages, there is an appropriate
procedure for allocating the damages to the members of the class;
* That the proposed representative is suitable to be permitted
to conduct the action and represent the class; and
* Whether, given the composition of the class and the nature of
the proposed action, a class action is the most appropriate means
of determining the claims of class members.
Suing the state for not taking appropriate action
According to Climate Action Tracker, an international agency
analysing global measures to address climate change, South Africa's
undertakings are rated as "Highly Insufficient".
The State is likely to defend a claim that it is not taking
appropriate or sufficient action. The Climate Change Bill was
introduced in June 2018, with the period for public comment ending
two months later. The objects of the (eventual) Act are to:
* Deliver a co-ordinated and integrated response to climate
change;
* Enhance the nation's adaptive capacity, strengthen resilience
and reduce vulnerability to climate change; and
* Contribute to the global efforts to stabilise greenhouse gas
(GHG) concentrations in the atmosphere to levels that avoid
dangerous anthropogenic interference with the climate system.
The Bill goes on to compel the Minister to establish a national
framework to realise these objects "within two years of the
relevant section taking effect". The earliest that this period
could commence is when the Act itself is promulgated. The Bill also
compels MECs and mayors to develop climate change response plans,
again within two years of the relevant section coming into effect.
Adaptation measures are also enabled, as is the broad framework for
limiting GHG emissions via an "emissions trajectory" that must be
established by the minister. Empowering the establishment of
sectoral emission caps and carbon budgets, the Bill is an
apparently reasonable mechanism that would enable a committed state
to address climate change.
But there are no actual timeframes for meaningful action. Even if
the designated functionaries complete their high-level plans in
time, it is conceivable that years could elapse before we see the
state assertively policing meaningful emission reduction measures.
The vagueness and generality could leave the state open to
allegations of not acting firmly or quickly enough.
The state's other main climate change-focused instrument, the
Carbon Tax Act, comes into effect in June 2019. Due to various
allowances, the price of R6 to R48 per ton of CO2e (CO2 equivalent)
has been criticised as being disturbingly low. Challenging this Act
and its implementation is another possible target for would-be
plaintiffs.
Suing the state for taking inappropriate action
Another possible angle for potential litigants would be to
challenge action that is currently being taken, or intended to be
taken, by the state which is deemed to exacerbate the
destructiveness of climate change.
The Brulpadda offshore gas find could well find itself a target of
legal climate change activism. Touted in some circles as being a
one-billion-barrel bonanza, the eventual commercial extraction of
the natural gas is likely to completely blow the country's carbon
budget in terms of the Paris Agreement (and its successors) and any
emission targets that may emanate from the Climate Change Act.
The Department of Energy could find itself the target of action in
its capacity as author and guardian of the Integrated Resource Plan
(IRP) which determines the mix of electricity generation. The
latest 2018 version was subject to public debate late last year and
is now in a closed-door review process. The plan maps out
generation sources up to 2030 and envisages 46% coal-fired power
and 16% gas at that time. While on a better trajectory than in the
past, these levels of fossil fuel generation are also likely to
compromise internal and international emission reduction
commitments.
Suing for damages caused by climate change
The Climate Change Bill, along with a recently published (for
comment) National Climate Change Adaptation Strategy, formalise the
state's responsibility to take adaptation measures. This adds to
the government's liability to ensure that citizens and activities
are protected from climate change-induced disasters. Extreme
weather events and water shortages, for instance, can cause massive
financial and other losses, and the victims are likely to find
themselves in a position to have a claim should adaptation measures
be found to have been wanting. Unlike some of the scenarios
described above, these claims could be for money which the state
would then have to pay over as damages.
Suing corporations
Eskom, as the emitter of around 50% of SA's GHGs, might seem like
low-hanging fruit for a class action. But it must be borne in mind
that the utility takes its cue from the IRP discussed above, and
therefore that any fault that is established should be laid at the
Department of Energy's door.
Petrochemical giant Sasol is the next-largest emitter and therefore
also vulnerable to claims. Developments in global climate change
litigation so far seem to indicate less success against
corporations than against governments. When reduced to the simplest
terms, a corporation can argue that it is merely meeting market
demand, that the users of its products share liability and that it
is the government that should be enabling systems that do not
require fossil fuel.
Class actions are legally and financially challenging, but South
Africa has a solid network of environmental and social justice
organisations that are no strangers of the courts.
Well-coordinated action by affected citizens, supported by a
coalition of civil society agencies, will find the necessary
foundation in place to succeed. Ideally, of course, this wouldn't
be necessary as everyone is doing their bit. [GN]
*********
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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Toledo, Christopher G. Patalinghug, and Peter A. Chapman, Editors.
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