/raid1/www/Hosts/bankrupt/CAR_Public/190809.mbx
C L A S S A C T I O N R E P O R T E R
Friday, August 9, 2019, Vol. 21, No. 159
Headlines
ACURIAN INC: Duran Files Suit Over Unsolicited Text Messages
ALBERTSONS COMPANIES: Dismissal in Data Breach Suit Upheld
ALEXION PHARMA: Suit over SOLIRIS Sales Practices Ongoing
ALKERMES PLC: Continues to Defend Consolidated Class Suit in NY
ALKERMES PLC: Continues to Defend Gagnon Class Suit
AMAZON.COM: Thomas, et al Seek OT Pay for Warehouse Workers
ARC OF FAYETTE: Lynn Moves for Certification of Class Under FLSA
ARMOUR RESIDENTIAL: Bid to Dismiss Merger-Related Suit Pending
BERRY BROS: Murillo Seeks to Conditionally Certify Class Action
BRISTOL-MYERS SQUIBB: Bid to Dismiss CheckMate-026 Suit Pending
BRISTOL-MYERS SQUIBB: Celgene Acquisition-Related Suits Dismissed
CAPITAL ONE: Anthony Sues Over Data Breach
CAPITAL ONE: Berger Sues Over Data Breach
CAPITAL ONE: Hilker Sues Over Failure to Protect PII
CAPITAL ONE: McDonough Sues Over Data Breach
CARDCONNECT: Bid to Reconsider Contract Terms Ruling in Kao Denied
COMMUNITY HEALTH: Court Certifies Class in Retirement System Suit
CONVERSE INC: 9th Cir. Flips Summary Judgment in Chavez Suit
CREDIT BUREAU OF NAPA: Class Certification Sought in McKinney Suit
DEL FRISCO'S: Sabatini Balks at L Catterton Merger Deal
DIGITAL CONCRETE: Compoli Sues Over Unpaid Overtime Wages
EDEN CREAMERY: Court Narrows Claims in 1st Amended Kamal Suit
ENTEGRA FINANCIAL: Suits over First Citizens Merger Deal Filed
EXPEDIA GROUP: Faces Liberty Expedia Merger-Related Suits
EXPEDIA GROUP: Faces Steamfitters Local 449 Suit
FACEBOOK INC: Continues to Defend Cyber-Attack Related Suits
FACEBOOK INC: Settlement Reached in FTC & SEC Probes
FLIRT NY: Fails to Properly Pay Workers, Nikonov Suit Says
FORD MOTOR: Pinon Sues over Breach of Warranty
GENOCEA BIOSCIENCES: Emerson Class Action Dismissed
HELIUS MEDICAL: Evans Files Suit Over Share Price Drop
HERITAGE-CRYSTAL CLEAN: Certification in Adelphia's Suit Affirmed
HONEYWELL INT'L: Pacheco Seeks More Time to File Certiorari Bid
JM SMUCKER: Order on Format for Doc Productions in Robinson Entered
LA ROSA REALTY: De La Cruz Sues Over Unsolicited Marketing
LG ELECTRONICS: Tabora, et al Sue over Fridge Compressor Defect
LIVE NATION: Still Defends Suits Related to Overpriced Tickets
LOANDEPOT.COM LLC: FAC in Roman Suit Dismissed w/o Prejudice
LOOMIS ARMORED: 2 Classes of Technicians Certified in Myers Suit
LOUISIANA: Can Partly Compel Replies to Tellis Discovery Requests
MDL 2179: Donovan v Herman Suit Goes to Eastern Dist. of Louisiana
MDL 2243: Hodge's Products Liability Litigation Goes to New Jersey
MDL 2244: Court Denies Bid to Remand Mugnolo Suit to N.D. Calif.
MDL 2545: Court Denies Bid to Transfer Ungleich v. Abbvie
MDL 2626: Alcon Vision v. Allied Vision Goes to M.D. Florida
MDL 2666: Kolb and Tye Product Liability Suits Moved to Minnesota
MDL 2738: 7 Suits v. Johnson & Johnson Moved to New Jersey
MDL 2738: Court Vacates Conditional Transfer Order for Cortez Suit
MDL 2738: Court Vacates Conditional Transfer Order for Jackson Suit
MDL 2738: Court Vacates CTO-140 and 141 for 6 Suits in Louisiana
MDL 2741: Cichy v. Bayer Suit Moved to Northern Dist. of California
MDL 2741: Court Vacates Conditional Transfer Order for Knox Lawsuit
MDL 2800: Joshpe v. Equifax Suit Moved to Northern Dist. of Georgia
MDL 2804: 43 National Prescription Opiate Suits Moved to N.D. Ohio
MDL 2804: Court Vacates Conditional Transfer Orders for 2 Lawsuits
MDL 2804: Court Vacates CTO for Illinois Public Risk Fund's Suit
MDL 2804: Court Vacates CTO-92 for Kern County's Opiate Lawsuit
MDL 2873: 2 Products Liability Suits Transferred to South Carolina
MDL 2875: 2 Collins Product Liability Suits Moved to New Jersey
MDL 2896: 4 Patent Suits by Keryx Transferred to Dist. of Delaware
MDL 2897: Court Denies Bid to Centralize 3 Products Liability Suits
MDL 2898: Court Denies Bid to Centralize 10 Product Liability Suits
MDL 2899: Court Denies Bid to Centralize 6 RICO Suits v. Aquawood
MDL 2900: Court Denies Motion to Centralize 2 Shareholder Lawsuits
MDL 2901: 3 Suits vs. Ford Motor Moved to Eastern Dist. Michigan
MDL 2903: 10 Product Liability Suits Transferred to W.D. New York
MDL 2904: 10 Data Security Suits Transferred to New Jersey
MISSOURI: Garrett's Bid to Intervene in Gasca Prisoners Suit Denied
NEWMONT GOLDCORP: Class Action in Canada Ongoing
NORFOLK SOUTHERN: Continues to Defend Fuel Surcharge-Related Suit
OHIO: Denial in Part of Bids to Dismiss Mann Suit Recommended
OLIN CORP: Tripp Plating Alleges Price-Fixing of Caustic Soda
ON QUE STYLE LLC: Reid Sues over ADA Violations
PERSONALIZED BEAUTY DISCOVERY: Reid Sues over ADA Violations
PHILIP MORRIS: ADESF Class Suit in Brazil vs. Unit Still Ongoing
PHILIP MORRIS: Class Certification Bid in Ringer Suit Underway
PHILIP MORRIS: Court Narrows Decision in Letourneau Class Suit
PHILIP MORRIS: Court of Appeals Narrows Decision in Blais Suit
PHILIP MORRIS: Natan Suit Against Unit Dismissed
PHILIP MORRIS: Still Defends Securities Litigation in New York
PHILIP MORRIS: Subsidiaries Face Rebolledo Suit in Columbia
PNC BANK: Scott Sues over Collateral Protection Insurance
POP WARNER: Archie, et al. Seek to Certify Class
PRINTPACK INC: Baker Seeks Unpaid Wages Under FLSA
PRO CUSTOM SOLAR: Becker Suit Asserts TCPA Violation
RAYTHEON COMPANY: Kendall Files Suit Over UTC Merger Deal
SAILED, LLC: Reyna Seeks Minimum & OT Wages for Delivery Workers
SHANGHAI ORIGINAL: Second Circuit Appeal Initiated in Jin Suit
SIX FLAGS: Continues to Defend Suits Over Credit Card Info
SIX FLAGS: Suit over Collection of Biometric Data Ongoing
SNAP INC: Continues to Defend Suits Over Initial Public Offering
SPRINT/UNITED MANAGEMENT: $4MM Caudle Settlement Has Prelim OK
SSC KERRVILLE: Conditional Class Cert. Bid Dismissed as Moot
ST. FRANCIS: La. App. Affirms Class Certification in Rabum Suit
SUFFOLK COUNTY, NY: Newkirk Seeks Cert. of Disabled Residents Class
SWIFT TRANSPORTATION: Court Consolidates Mcnutt, Woeck FLSA Suits
TOPIX PHARMACEUTICALS: Reid Sues over ADA Violations
TRINITY INDUSTRIES: Agreement in Principle Reached in Isolde Suit
UNITED SERVICES: Kan. App. Affirms Summary Judgment in Vaughn Suit
UNITED STATES: Kammeyer Suit Dismissed w/o Prejudice
VEGAS.COM: Website not Accessible to Blind Person, Traynor Says
VENATOR MATERIALS: City of Miami Trust Hits Share Price Drop
WALLACE RUSH: Thomas FLSA Suit Class Claims Dismissed w/ Prejudice
WESTERN EXPRESS: Rivera Seeks to Certify Class
WFS EXPRESS: Washington Ct. Stays Bautista Class Suit for 150 Days
WORLD WRESTLING: Appellate Briefs Due October 7
Asbestos Litigation
ASBESTOS UPDATE: 1 Asbestos Suit Filed in Alameda Court on Aug. 2
ASBESTOS UPDATE: 1 Asbestos Suit Filed in St. Louis Ct. on July 26
ASBESTOS UPDATE: Appeals Ct. Denies Attempt to Circumvent Discovery
ASBESTOS UPDATE: Bestwall Beats Bid to Toss Asbestos Bankruptcy
ASBESTOS UPDATE: Crane Co. Had 28,851 Pending Claims at June 30
ASBESTOS UPDATE: J&J Would Rather Fight Cancer-Warning Suit
ASBESTOS UPDATE: J&J, Colgate Get Jury to Reject Hayes Talc Claims
ASBESTOS UPDATE: J. Lagrone Files Suit in Delaware
ASBESTOS UPDATE: K. Mason Files Suit in Delaware
ASBESTOS UPDATE: Lennox Int'l. Paid $1.8MM for Lawsuits in 1H 2019
ASBESTOS UPDATE: Man Awarded $3MM Over Renovation Exposure
ASBESTOS UPDATE: Pentair Units Had 670 Pending Claims at June 30
ASBESTOS UPDATE: PPG Industries Had 490 Open Claims at June 30
ASBESTOS UPDATE: R. Medina Files Suit in Delaware
ASBESTOS UPDATE: Reese Couple Files Suit in St. Louis Circuit Ct.
ASBESTOS UPDATE: von Holzen Couple Files Suit in Delaware
*********
ACURIAN INC: Duran Files Suit Over Unsolicited Text Messages
------------------------------------------------------------
RADAMES DURAN, on behalf of himself and all others similarly
situated, Plaintiff, v. ACURIAN, INC., Defendant, Case No.
1:19-cv-07179 (S.D. N.Y., July 31, 2019) is an action brought by
Plaintiff on behalf of himself and all consumers in the United
States who have received unsolicited and unconsented-to commercial
text messages to their mobile phones from Defendant in violation of
the Telephone Consumer Protection Act ("TCPA").
According to the complaint, Plaintiff never consented to receiving
promotional and marketing text messages on his mobile phone.
Beginning in March of 2019, Plaintiff started receiving texts from
Defendant promoting its services. The Defendant sent similar
unsolicited marketing texts using an automated telephone texting
system to other similarly situated persons, who likewise never
consented to receiving them. The text messages sent to Plaintiff
were unwanted, annoying, and a nuisance, says the complaint.
Plaintiff DURAN resides in the state of New York.
ACURIAN, INC., is a medical research and service provider with a
principle executive office located at 2 walnut Grove Drive Ste 375,
Horsham, PA 19044.[BN]
The Plaintiff is represented by:
C.K. Lee, Esq.
LEE LITIGATION GROUP, PLLC
148 West 24th Street, 8th Floor
New York, NY 10011
Phone: 212-465-1188
Fax: 212-465-1181
ALBERTSONS COMPANIES: Dismissal in Data Breach Suit Upheld
----------------------------------------------------------
Albertsons Companies, Inc. said in its Form 10-Q Report filed with
the Securities and Exchange Commission on July 24, 2019, for the
quarterly period ended June 15, 2019, that the dismissal in the
security breach related class suits was upheld on appeal.
In 2014, the Company was the subject of criminal intrusions by the
installation of malware on a portion of its computer network that
processes payment card transactions for approximately 800 of its
stores through its then service provider SuperValu. The Company
believes these were attempts to collect payment card data.
The forensic investigation into the intrusions indicated that
although the Company was then compliant with the Payment Card
Industry (PCI) Data Security Standards issued by the PCI Council,
it was not compliant with all of these standards at the time of the
intrusions.
As a result, the Company was assessed by certain card companies for
incremental counterfeit fraud losses, non-ordinary course expenses
(such as card reissuance costs) and case management costs.
The Company has paid or recorded an estimated liability for all of
such assessments, and is seeking recovery from MasterCard of its
assessment.
As a result of the intrusion, two class action complaints were
filed against the Company by consumers.
These complaints have been dismissed, and the dismissal was upheld
on appeal on May 31, 2019.
In 2015 the Company also received a letter from the Office of the
Attorney General of the Commonwealth of Pennsylvania stating that
the Illinois and Pennsylvania Attorneys General Offices were
leading a multi-state group requesting specified information
concerning the two data breach incidents.
The Company has cooperated with the investigation. The multi-state
group did not make a monetary demand, and the Company is unable to
estimate the possibility or range of loss, if any.
Albertsons Companies, Inc., through its subsidiaries, operates as a
food and drug retailer in the United States. Its food and drug
retail stores offer grocery products, general merchandise, health
and beauty care products, pharmacy, fuel, and other items and
services. The company is headquartered in Boise, Idaho. Albertsons
Companies, Inc. is a subsidiary of Albertsons Investor Holdings
LLC.
ALEXION PHARMA: Suit over SOLIRIS Sales Practices Ongoing
---------------------------------------------------------
Alexion Pharmaceuticals, Inc. said in its Form 10-Q Report filed
with the Securities and Exchange Commission on July 24, 2019, for
the quarterly period ended June 30, 2019, that the company
continues to defend a putative class action suit involving SOLIRIS
sales practices.
On December 29, 2016, a shareholder filed a putative class action
against the Company and certain former employees in the U.S.
District Court for the District of Connecticut, alleging that
defendants made misrepresentations and omissions about SOLIRIS.
On April 12, 2017, the court appointed a lead plaintiff. On July
14, 2017, the lead plaintiff filed an amended putative class action
complaint against the Company and seven current or former
employees. Defendants moved to dismiss the amended complaint on
September 12, 2017.
Plaintiffs filed an opposition to defendants' motion to dismiss on
November 13, 2017, and defendants' filed a reply brief in further
support of their motion on December 28, 2017.
On March 26, 2019, the court held a telephonic status conference.
During that conference, the court informed counsel that it was
preparing a ruling granting the Defendants' pending motion to
dismiss.
The court inquired of plaintiffs' counsel whether they intended to
seek leave to amend their complaint, and indicated that if they
wished to file a second amended complaint, they would be allowed to
do so.
On April 2, 2019, the court granted plaintiffs until May 31, 2019
to file a second amended complaint, thereby rendering moot
defendants' pending motion to dismiss.
On May 31, 2019, Plaintiffs filed a second amended complaint
against the same defendants. The complaint alleges that defendants
engaged in securities fraud, including by making misrepresentations
and omissions in its public disclosures concerning the Company's
SOLIRIS sales practices, management changes, and related
investigations, between January 30, 2014 and May 26, 2017, and that
the Company's stock price dropped upon the purported disclosure of
the alleged fraud.
The plaintiffs seek to recover unspecified monetary relief,
unspecified equitable and injunctive relief, interest, and
attorneys' fees and costs.
Defendants' motion to dismiss the amended complaint is due August
2, 2019; plaintiffs' opposition to that motion is due October 2,
2019; and defendants' reply in further support of their motion is
due November 16, 2019.
Alexion said, "Given the early stage of these proceedings, we
cannot presently predict the likelihood of obtaining dismissal of
the case, nor can we estimate the possible loss or range of loss at
this time."
Alexion Pharmaceuticals, Inc., a biopharmaceutical company,
develops and commercializes various therapeutic products. The
company was founded in 1992 and is headquartered in Boston,
Massachusetts.
ALKERMES PLC: Continues to Defend Consolidated Class Suit in NY
---------------------------------------------------------------
Alkermes plc said in its Form 10-Q Report filed with the Securities
and Exchange Commission on July 25, 2019, for the quarterly period
ended June 30, 2019, that the company continues to defend the
Karimian and McDermott consolidated suit.
In December 2018 and January 2019, purported stockholders of the
Company filed putative class actions against the Company and
certain of its officers in the United States District Court for the
Eastern District of New York captioned Karimian v. Alkermes plc, et
al., No. 1:18-cv-07410 and. McDermott v. Alkermes plc, et al., No.
1:19-cv-00624, respectively.
In March 2019, the United States District Court for the Eastern
District of New York consolidated the two cases and appointed a
lead plaintiff. The plaintiff filed an amended complaint on July 9,
2019 naming one additional officer of the Company and one former
officer of the Company as defendants.
The amended complaint was filed on behalf of a putative class of
purchasers of Alkermes securities during the period of July 31,
2014 through November 1, 2018 and alleges violations of Sections
10(b) and 20(a) of the Securities Exchange Act of 1934, as amended,
based on allegedly false or misleading statements and omissions
regarding the Company's clinical methodologies and regulatory
submission for ALKS 5461 and the FDA's review and consideration of
that submission.
The lawsuit seeks, among other things, unspecified money damages,
prejudgment and postjudgment interest, reasonable attorneys' fees,
expert fees and other costs.
Alkermes plc, a biopharmaceutical company, researches, develops,
and commercializes pharmaceutical products to address unmet medical
needs of patients in various therapeutic areas in the United
States, Ireland, and internationally. Alkermes plc was founded in
1987 and is headquartered in Dublin, Ireland.
ALKERMES PLC: Continues to Defend Gagnon Class Suit
---------------------------------------------------
Alkermes plc said in its Form 10-Q Report filed with the Securities
and Exchange Commission on July 25, 2019, for the quarterly period
ended June 30, 2019, that the company continues to defend a class
action suit entitled, Gagnon v. Alkermes plc, et al., No.
1:17-cv-09178.
In November 2017, a purported stockholder of the Company filed a
putative class action against the Company and certain of its
officers (collectively, "Defendants") in the United States District
Court for the Southern District of New York captioned Gagnon v.
Alkermes plc, et al., No. 1:17-cv-09178.
This complaint was amended twice since its initial filing. The
second amended complaint was filed on behalf of a putative class of
purchasers of Alkermes securities during the period of February 24,
2015 through November 14, 2017 and alleged violations of Sections
10(b) and 20(a) of the Securities Exchange Act of 1934, as amended,
based on allegedly false or misleading statements and omissions
regarding the Company's marketing practices related to VIVITROL.
The lawsuit sought, among other things, unspecified damages for
alleged inflation in the price of securities, and reasonable costs
and expenses, including attorneys' fees.
In June 2018, Defendants filed a motion to dismiss the second
amended complaint and in March 2019, the United States District
Court for the Southern District of New York issued an order
granting Defendants’ motion to dismiss and dismissing the case in
its entirety and with prejudice.
In April 2019, the plaintiff filed a motion for partial
reconsideration, which was denied by the Court on July 2, 2019.
Plaintiff has until August 2, 2019 to file a notice of appeal of
the Court's decision to the United States Court of Appeals for the
Second Circuit.
Alkermes plc, a biopharmaceutical company, researches, develops,
and commercializes pharmaceutical products to address unmet medical
needs of patients in various therapeutic areas in the United
States, Ireland, and internationally. Alkermes plc was founded in
1987 and is headquartered in Dublin, Ireland.
AMAZON.COM: Thomas, et al Seek OT Pay for Warehouse Workers
-----------------------------------------------------------
SAVON THOMAS and COLLEEN E. MCLAUGHLIN, on behalf of themselves and
all others similarly situated, the Plaintiffs, vs. AMAZON.COM
SERVICES, INC., and AMAZON.COM, INC.,the Defendants, Case No.
1:19-cv-01696-DAP (N.D. Ohio., July 25, 2019), challenges policies
and practices of Defendants that violate the Ohio Overtime Law.
According to the complaint, the Defendants jointly operate
logistics facilities throughout the State of Ohio (the "Ohio Amazon
Fulfillment Centers"). Thomas and McLaughlin worked for Defendants
as non-exempt hourly employee.
The hourly-paid Ohio Warehouse Workers at the Ohio Amazon
Fulfillment Centers are jointly employed by Defendants. Although
the exact number is not known, Defendants employ over 100 Ohio
Warehouse Workers throughout the State of Ohio who are not exempt
from the Ohio Overtime Law.
The Plaintiffs and the Ohio Warehouse Workers regularly worked over
40 hours per workweek. Specifically, in every week in which
Plaintiffs were paid for at least 40 hours of work in a workweek,
they also worked overtime hours for which they were not paid, the
lawsuit says.[BN]
Counsel for the Plaintiffs are:
Hans A. Nilges, Esq.
Shannon M. Draher, Esq.
NILGES DRAHER LLC
7266 Portage St., N.W., Suite D
Massillon, OH 44646
Telephone: 330-470-4428
E-mail: hans@ohlaborlaw.com
sdraher@ohlaborlaw.com
ARC OF FAYETTE: Lynn Moves for Certification of Class Under FLSA
----------------------------------------------------------------
The Plaintiffs in the lawsuit entitled JESSE LYNN and BELINDA
DARNELL, on behalf of themselves and all similarly situated
employees v. ARC OF FAYETTE COUNTY and FAYETTE COUNTY BEHAVIORAL
HEALTH ADMINISTRATION, Case No. 2:17-cv-00474-MRH-LPL (W.D. Pa.),
moves for certification of class action.
The Plaintiffs filed the action on April 23, 2017, against the
Defendant alleging that they were owed statutorily required wages
under the Fair Labor Standards Act of 1938 and the Pennsylvania
Minimum Wage Act.
The action was filed on behalf of approximately 75 individuals
employed as Family Support Persons (FSP's) working in the Home
Support Programs in Fayette County since April 23, 2014, to the
present. The Plaintiffs seek certification of this action as a
class action pursuant to Rule 23 of the Federal Rules of Civil
Procedure to pursue their rights under the Pennsylvania Minimum
Wage Act and the Fair Labor Standards Act.[CC]
The Plaintiffs are represented by:
Joseph E. Fieschko, Jr., Esq.
FIESCHKO & ASSOCIATES, INC.
436 Seventh Avenue, Suite 2230
Pittsburgh, PA 15219
Telephone: (412) 281-2204
Facsimile: (412) 338-9169
E-mail: joe@fieschko.com
- and -
John R. Linkosky, Esq.
JOHN LINKOSKY & ASSOC.
715 Washington Avenue
Carnegie, PA 15106
Telephone: (412) 278-1289
E-mail: linklaw@comcast.net
Defendant ARC OF FAYETTE COUNTY is represented by:
Craig M. Brooks, Esq.
HOUSTON HARBAUGH, PC
401 Liberty Ave., 22nd Floor
Pittsburgh, PA 15222
Telephone: (412) 288-2214
E-mail: cbrooks@hh-law.com
Defendant FAYETTE COUNTY BEHAVIORAL HEALTH ADMINISTRATION is
represented by:
Marie Milie Jones, Esq.
Michael R. Lettrich, Esq.
JONES PASSODELIS, PLLC
Gulf Tower, Suite 3410
Pittsburgh, PA 15219
Telephone: (412) 315-7272
E-mail: mjones@jonespassodelis.com
mlettrich@jonespassodelis.com
ARMOUR RESIDENTIAL: Bid to Dismiss Merger-Related Suit Pending
--------------------------------------------------------------
ARMOUR Residential REIT, Inc. said in its Form 10-Q Report filed
with the Securities and Exchange Commission on July 24, 2019, for
the quarterly period ended June 30, 2019, that the court has yet to
issue an order on the motion to dismiss the complaint in the case
entitled, In re JAVELIN Mortgage Investment Corp. Shareholder
Litigation.
Nine putative class action lawsuits have been filed in connection
with the tender offer (the "Tender Offer") and merger (the
"Merger") for JAVELIN. The Tender Offer and Merger are collectively
defined herein as the "Transactions."
All nine suits name ARMOUR, the previous members of JAVELIN's board
of directors prior to the Merger (of which eight are current
members of ARMOUR's board of directors) (the "Individual
Defendants") and JMI Acquisition Corporation ("Acquisition") as
defendants. Certain cases also name ACM and JAVELIN as additional
defendants.
The lawsuits were brought by purported holders of JAVELIN's common
stock, both individually and on behalf of a putative class of
JAVELIN's stockholders, alleging that the Individual Defendants
breached their fiduciary duties owed to the plaintiffs and the
putative class of JAVELIN stockholders, including claims that the
Individual Defendants failed to properly value JAVELIN; failed to
take steps to maximize the value of JAVELIN to its stockholders;
ignored or failed to protect against conflicts of interest; failed
to disclose material information about the Transactions; took steps
to avoid competitive bidding and to give ARMOUR an unfair advantage
by failing to adequately solicit other potential acquirors or
alternative transactions; and erected unreasonable barriers to
other third-party bidders. The suits also allege that ARMOUR,
JAVELIN, ACM and Acquisition aided and abetted the alleged breaches
of fiduciary duties by the Individual Defendants. The lawsuits seek
equitable relief, including, among other relief, to enjoin
consummation of the Transactions, or rescind or unwind the
Transactions if already consummated, and award costs and
disbursements, including reasonable attorneys' fees and expenses.
The sole Florida lawsuit was never served on the defendants, and
that case was voluntarily dismissed and closed on January 20, 2017.
On April 25, 2016, the Maryland court issued an order consolidating
the eight Maryland cases into one action, captioned In re JAVELIN
Mortgage Investment Corp. Shareholder Litigation (Case No.
24-C-16-001542), and designated counsel for one of the Maryland
cases as interim lead co-counsel.
On May 26, 2016, interim lead counsel filed the Consolidated
Amended Class Action Complaint for Breach of Fiduciary Duty
asserting consolidated claims of breach of fiduciary duty, aiding
and abetting the breaches of fiduciary duty, and waste.
On June 27, 2016, defendants filed a Motion to Dismiss the
Consolidated Amended Class Action Complaint for failing to state a
claim upon which relief can be granted.
A hearing was held on the Motion to Dismiss on March 3, 2017, and
the Court reserved ruling. To date, the Court has not issued an
order on the Motion to Dismiss.
No further updates were provided in the Company's SEC report.
ARMOUR Residential REIT, Inc. invests in residential mortgage
backed securities in the United States. The company is managed by
ARMOUR Capital Management LP. The company was founded in 2008 and
is based in Vero Beach, Florida.
BERRY BROS: Murillo Seeks to Conditionally Certify Class Action
---------------------------------------------------------------
In the class action lawsuit styled as SERGIO MURILLO, individual
and on behalf of all others similarly situated, the Plaintiff. vs.
BERRY BROS. GENERAL CONTRACTORS, INC., the Defendant, Case No.
6:18-cv-01434-MJJ-CBW (W.D. La.), the Plaintiff asks the Court for
an order:
1. conditionally certifying the action for the purposes of
notice and discovery;
2. directing that notice in English and Spanish be sent to
all Putative Class Members;
3. approving notice and consent;
4. directing mailing, e-mailing, and texting of notice,
along with a remainder notice;
5. permitting Class Counsel to contract by telephone those
Putative Class Members who are former Employees of Berry
Bros. Or whose contact information is not valid;
6. directing Berry Bros. to post the the notice and consent
forms in their job sites/offices for the entire opt-in
period;
7. directing Berry Bros. to produce to Class Counsel the
contact information for each Putative Class Members within
15 days of the Court's order; and
8. authorizing a 90-day period for Putative Class Members to
join the case.
The Plaintiff alleges that Berry Bros. failed to properly pay its
Non-Exempt Laborers proper overtime compensation of no less than
1.5 times all compensation received, in violation of the Fair Labor
Standards Act.[BN]
Attorneys for the Plaintiff are:
Kenneth W. DeJean, Esq.
Adam R. Credeur, Esq.
LAW OFFICES OF KENNETH W. DEJEAN
417 W. University Avenue
P.O. Box 4325
Lafayette, LA 70502
Telephone: (337) 235 5294
Facsimile: (337) 235 1095
E-mail: kwdejean@kwdejean.com
adam@kwdejean.com
BRISTOL-MYERS SQUIBB: Bid to Dismiss CheckMate-026 Suit Pending
---------------------------------------------------------------
Bristol-Myers Squibb Company said in its Form 10-Q Report filed
with the Securities and Exchange Commission on July 25, 2019, for
the quarterly period ended June 30, 2019, that the motion to
dismiss the class action related to the CheckMate-026 clinical
trial remains pending.
Since February 2018, two separate putative class action complaints
were filed in the U.S. District for the Northern District of
California and in the U.S. District Court for the Southern District
of New York against the Company, the Company's Chief Executive
Officer, Giovanni Caforio, the Company's Chief Financial Officer,
Charles A. Bancroft and certain former and current executives of
the Company.
The case in California has been voluntarily dismissed.
The remaining complaint alleges violations of securities laws for
the Company's disclosures related to the CheckMate-026 clinical
trial in lung cancer. A fully briefed motion to dismiss is pending
before the court.
The Company intends to defend itself vigorously in this
litigation.
No further updates were provided in the Company's SEC report.
Bristol-Myers Squibb Company discovers, develops, licenses,
manufactures, markets, distributes, and sells biopharmaceutical
products worldwide. Bristol-Myers Squibb Company was founded in
1887 and is headquartered in New York, New York.
BRISTOL-MYERS SQUIBB: Celgene Acquisition-Related Suits Dismissed
-----------------------------------------------------------------
Bristol-Myers Squibb Company said in its Form 10-Q Report filed
with the Securities and Exchange Commission on July 25, 2019, for
the quarterly period ended June 30, 2019, that the class actions
suits related to the company's acquisition of Celgene Corp., have
been dismissed.
Following the announcement of the Company's pending acquisition of
Celgene Corp., thirteen complaints were filed by Celgene
shareholders in the U.S. District Court for the District of
Delaware, U.S. District Court for the District of New Jersey, the
U.S. District Court for the Southern District of New York and the
Court of Chancery of the State of Delaware seeking to enjoin the
Company's pending acquisition of Celgene.
The complaints in these actions name as defendants Celgene and the
members of Celgene's Board of Directors.
Five of these complaints also name the Company and Burgundy Merger
Sub, Inc., a wholly-owned subsidiary of the Company that was formed
solely for the purpose of completing the pending acquisition of
Celgene and will be merged with and into Celgene upon the
completion of the acquisition, as defendants. Of the complaints
naming the Company as a defendant, four are styled as putative
class actions.
The plaintiffs allege violations of various federal securities laws
and breaches of fiduciary duties in connection with the acquisition
of Celgene by the Company.
After the Company and Celgene released supplemental disclosures
relating to the proposed acquisition in early April 2019, the
plaintiffs in these cases agreed to dismiss their actions.
As of June 30, 2019, all of these complaints have been dismissed,
including all five complaints that named the Company and Burgundy
Merger Sub, Inc. as defendants.
Separately, a fourteenth complaint styled as a putative class
action was filed in the Court of Chancery of the State of Delaware
on behalf of the Company's shareholders naming members of the
Company's Board of Directors as defendants. This complaint alleges
that each of the members of the Company's Board of Directors
breached his or her fiduciary duties to the Company and its
shareholders by failing to disclose material information about the
pending acquisition. The lawsuit was voluntarily dismissed in April
2019.
Bristol-Myers Squibb Company discovers, develops, licenses,
manufactures, markets, distributes, and sells biopharmaceutical
products worldwide. Bristol-Myers Squibb Company was founded in
1887 and is headquartered in New York, New York.
CAPITAL ONE: Anthony Sues Over Data Breach
------------------------------------------
KENNETH ANTHONY, Individually and on Behalf of all Others Similarly
Situated, Plaintiff, v. CAPITAL ONE FINANCIAL CORPORATION, CAPITAL
ONE, N.A., and CAPITAL ONE BANK (USA), N.A., Defendants, Case No.
1:19-cv-00993-CMH-JFA (E.D. Va., July 31, 2019) is an action on
behalf of a nationwide class against Defendants because of their
failure to protect the confidential information of millions of
consumers and small businesses, including financial information
and/or personal information (collectively, their "PII").
Plaintiff first became aware that his PII was at risk on July 30,
2019 via several news outlets. The actual Data Breach occurred on
March 22 and 23, 2019, and was discovered by Defendants only in
July 19, 2019 and publicly disclosed on July 29, 2019, over four
months after the PII of over 100 million customers and credit card
applicants were breached. The Defendants apparently continued to
allow the hacker to intrude their systems at least until April 21,
2019.
As a result of the Capital One data breach, Plaintiff's PII, credit
and financial information has been forever adversely affected which
was proximately caused by Defendants. The Defendants had a duty to
protect Plaintiff's PII and PCI data, and Defendants failed to do
so. They unreasonably permitted his PII to be stored and in a
manner that caused it to be publicly accessible which ultimately
caused her damages. The Defendants had highly deficient security
measures in place that left Plaintiff and Class(es) members exposed
in the cloud to the public through a fairly simple intrusion
routine, says the complaint.
Plaintiff Kenneth Anthony is an individual residing in Woodbury,
New Jersey, who has been a credit card customer of Capital One.
Capital One Financial Corporation, through its subsidiaries,
including Defendants Capital One, N.A., and Capital One Bank (USA),
N.A., is one of the largest credit card issuers in the United
States, and one of the top 10 largest banks based on deposits,
serving approximately 45 million customer accounts.[BN]
The Plaintiff is represented by:
John Cole Gayle, Jr., Esq.
THE CONSUMER LAW GROUP, P.C.
1508 Willow Lawn Dr., Suite 220
Richmond, VA 23230
Phone: (804) 282-7900
Facsimile: (804) 673-0316
Email: jgayle@theconsumerlawgroup.com
- and -
Jonathan Shub, Esq.
Kevin Laukaitis, Esq.
KOHN, SWIFT & GRAF, P.C.
1600 Market Street, Suite 2500
Philadelphia, PA 19103
Phone: (215) 238-1700
Facsimile: (215) 238-1968
Email: jshub@kohnswift.com
klaukaitis@kohnswift.com
- and -
James A. Francis, Esq.
John Soumilas, Esq.
FRANCIS & MAILMAN, P.C.
1600 Market Street, Suite 2510
Philadelphia, PA 19103
Phone: (215) 735-8600
Facsimile: (215) 940-8000
Email: jfrancis@consumerlawfirm.com
jsoumilas@consumerlawfirm.com
CAPITAL ONE: Berger Sues Over Data Breach
-----------------------------------------
Paul Berger, David Bienfait, Mark Bodner, Timothy Davidson, Adam
Greenstein, LaToya Jawara, Vicki Johns, David Rosenthal, Stephen
Rosenthal and Marcia Sorin, individually and on behalf of all
others similarly situated, Plaintiffs, v. Capital One Financial
Corporation, Capital One, N.A., and Capital One Bank (USA), N.A.,
Defendants, Case No. 1:19-cv-02298 (D. Colo., July 31, 2019) is an
action on behalf of a nationwide class against Defendants because
of their failure to protect the confidential information of
millions of consumers and small businesses, including financial
information and/or personal information (collectively, their
"PII").
The Defendants' wrongful disclosure (the "Data Breach") has harmed
Plaintiffs and the Class, believed to include approximately 106
million card customers and applicants. The Defendants had
obligations, arising from promises made to its credit card
applicants and customers like Plaintiffs and other Class Members,
and based on industry standards, to keep the Sensitive Information
confidential and to protect it from unauthorized disclosures. Class
Members provided their Sensitive Information to Capital One with
the understanding that Capital One and any business partners to
whom Capital One disclosed the Sensitive Information would comply
with their obligations to keep such information confidential and
secure from unauthorized disclosures.
The Defendants' security failures demonstrate that they failed to
honor their duties and promises by not maintaining an adequate data
security system to reduce the risk of data breaches and
cyber-attacks; not adequately monitoring its system to identify the
data breaches and cyber-attacks; and not adequately protecting
Plaintiffs' and the Class's Sensitive Information. Plaintiffs and
other Class Members have been injured by the disclosure of their
Sensitive Information in the Data Breach, says the complaint.
Plaintiffs are individuals who have been credit card customers of
Capital One.
Capital One Financial Corporation, through its subsidiaries,
including Defendants Capital One, N.A., and Capital One Bank (USA),
N.A., is one of the largest credit card issuers in the United
States, and one of the top 10 largest banks based on deposits,
serving approximately 45 million customer accounts.[BN]
The Plaintiffs are represented by:
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
Phone: (917) 438-9189
Email: lnussbaum@nussbaumpc.com
bcohen@nussbaumpc.com
- and -
Adam Frankel, Esq.
GREENWICH LEGAL ASSOCIATES, LLC
881 Lake Avenue
Greenwich, CT 06831
Phone: (203) 622-6001
Email: adam@grwlegal.com
CAPITAL ONE: Hilker Sues Over Failure to Protect PII
----------------------------------------------------
CHRISTI J. HILKER, individually and on behalf of all others
similarly situated, Plaintiff, v. CAPITAL ONE FINANCIAL
CORPORATION, CAPITAL ONE, N.A., and CAPITAL ONE BANK (USA), N.A.,
Defendants, Case No. 1:19-cv-00995 (E.D. Va., July 31, 2019) is an
action on behalf of a nationwide class against Defendants because
of their failure to protect the confidential information of
millions of consumers and small businesses, including financial
information and/or personal information (collectively, their
"PII").
On July 29, 2019, Capital One Financial Corporation, Capital One
N.A., and Capital One Bank (USA), N.A. one of the largest banks and
credit card issuers in the United States, announced it had
experienced a data breach that affected over 100 million people in
the United States and six million people in Canada. The massive
breach went undiscovered by Capital One despite the fact that the
hacker had posted publicly about the breach on Twitter and other
social medial sites over the course of several months and Capital
One had records of the unauthorized intrusion. Moreover, Capital
One, which has infinite resources to protect the vulnerable data
entrusted to it, was fully aware of the perils of a data breach and
its legal responsibility to protect against a data breach,
acknowledging in a recent public filing that "safeguarding our
customers' information is" essential to our mission as a financial
institution.
Capital One announced that it was able to "immediately address the
configuration vulnerability" that allowed the malicious and
unauthorized access of over 100 million consumers' Personal
Information, but it is too little too late for the millions of
Americans whose privacy has been invaded and who now must contend
with the resultant and imminent identity theft and fraud, says the
complaint.
Plaintiff Christi J. Hilker is a resident and citizen of Overland
Park, Kansas, whose Personal Information was compromised in the
Data Breach.
Capital One Financial Corporation is a bank holding company that
specializes in credit cards, auto loans, and banking and savings
accounts.[BN]
The Plaintiff is represented by:
William H. Murphy III, Esq.
Jessica H. Meeder, Esq.
John G. Harnishfeger, Esq.
MURPHY, FALCON & MURPHY
One South Street, Ste 2300
Baltimore, MD 21202
Phone: (410) 951-8744
Fax: (410) 539-6599
Email: hassan.murphy@murphyfalcon.com
jessica.meeder@murphyfalcon.com
john.harnishfeger@murphyfalcon.com
- and -
Norman E. Siegel, Esq.
Barrett J. Vahle, Esq.
J. Austin Moore, Esq.
Jillian R. Dent, Esq.
STUEVE SIEGEL HANSON LLP
460 Nichols Road, Suite 200
Kansas City, MO 64112
Phone: (816) 714-7100
Facsimile: (816) 714-7101
Email: siegel@stuevesiegel.com
vahle@stuevesiegel.com
moore@stuevesiegel.com
dent@stuevesiegel.com
CAPITAL ONE: McDonough Sues Over Data Breach
--------------------------------------------
RACHEL MCDONOUGH, individually and on behalf of all others
similarly situated, Plaintiff, v. CAPITAL ONE FINANCIAL
CORPORATION, CAPITAL ONE BANK (USA), N.A., and CAPITAL ONE, N.A.,
Defendants, Case No. 1:19-cv-00984 (E.D. Va., July 30, 2019) is a
class action against Defendants, to obtain damages, restitution and
injunctive relief.
Capital One Financial Corporation is a bank holding company
specializing in credit cards, auto loans, banking and savings
accounts. Plaintiff has a Capital One Venture Rewards Credit Card
account with Capital One. Plaintiff applied for a Venture Card in
January of 2019 and was issued a Venture Card shorty thereafter.
Plaintiff first became aware that her personally identifiable
information (PII) was at risk on July 30, 2019 via several news
outlets.
Capital One claims "the configuration vulnerability was reported to
them by an external security researcher through our Responsible
Disclosure Program on July 17, 2019." Nevertheless, the hacker
infiltrated Capital One's deficient systems on March 22 and 23,
2019 and Defendants did not even know about it until a third party
notified Capital One of the vulnerability. By Defendants' own
admission, the hacker(s) had access to Defendants' information
systems, including Plaintiff's and the Class' PII, for four months
without any detection of the infiltration.
The complaint asserts that it was Defendants duty to protect
Plaintiff's PII data, and Defendants failed to do so. They
unreasonably permitted her PII and PCI to be stored and in a manner
that caused it to be publicly accessible which ultimately caused
her damages. Defendants had highly deficient security measures in
place that left Plaintiff and Class(es) members exposed in the
cloud to the public through a fairly simple intrusion routine.[BN]
The Plaintiff is represented by:
Steven T. Webster, Esq.
WEBSTER BOOK LLP
300 N. Washington St., Suite 404
Alexandria, VA 22314
Phone: (888) 987-9991
Facsimile: (888) 987-9991
Email: swebster@websterbook.com
- and -
W. Lewis Garrison, Jr., Esq.
Taylor C. Bartlett, Esq.
Christopher B. Hood, Esq.
HENINGER GARRISON DAVIS, LLC
2224 1st Avenue North
Birmingham, AL 35203
Phone: (205) 326-3336
Facsimile: (205) 326-3332
Email: lewis@hgdlawfirm.com
taylor@hgdlawfirm.com
- and -
James F. McDonough, III, Esq.
Jonathan R. Miller, Esq.
Travis E. Lynch, Esq.
HENINGER GARRISON DAVIS, LLC
3621 Vinings Slope, Suite 4320
Atlanta, GA 30339
Phone: (404) 996-0869, -0863, -0867
Facsimile: (205) 326-5502, -5506, -5515
Email: jmcdonough@hgdlawfirm.com
jmiller@hgdlawfirm.com
tlynch@hgdlawfirm.com
CARDCONNECT: Bid to Reconsider Contract Terms Ruling in Kao Denied
------------------------------------------------------------------
In the case TEH SHOU KAO, and T S KAO, INC., on behalf of
themselves and all others similarly situated, Plaintiffs, v.
CARDCONNECT CORP., Defendant. TECH LOUNGE SP, LLC, and THE LAW
OFFICE OF KEVIN ADAMS, PLLC, on behalf of themselves and all others
similarly situated, Plaintiffs, v. CARDCONNECT CORP., Defendant,
Consolidated Civil Action No. 16-5707 (E.D. Pa.), Judge Gerald J.
Pappert of the U.S. District Court for the Eastern District of
Pennsylvania denied CardConnect's Motion for Reconsideration as
well as its request for certification for interlocutory review.
The Plaintiffs are family-owned and operated small businesses: T S
Kao, Inc., is a Chinese restaurant in Michigan run by Teh Shou Kao
and his wife; Tech Lounge SP, LLC, is a video game lounge and
coffee bar in Wisconsin owned by a husband and wife; and The Law
Office of Kevin Adams, PLLC, is a firm in Michigan staffed by a
husband, wife and their daughters. The Plaintiffs used
CardConnect, a merchant services provider, to process their debit
and credit card payments. After CardConnect allegedly charged
unauthorized rates and fees, the Plaintiffs filed class action
lawsuits.
Kao and T S Kao filed their four-count class action Complaint
against CardConnect on Nov. 1, 2016. In Counts One and Two, they
alleged that no binding contract existed between the parties and,
as a result, CardConnect was unjustly enriched. In Counts Three
and Four, the Plaintiffs pled an alternative theory of liability:
if a contract existed, then CardConnect breached it and the implied
covenant of good faith and fair dealing, and certain contract terms
were invalid.
The case was previously assigned to Judge Ditter, who determined
that there was no express binding contract between the parties.
Although the parties agreed that there was an implied contract,
they disputed its terms. Judge Ditter directed the parties to take
discovery on that issue and then submit briefs on their respective
proposed terms. After reviewing the parties' extensive submissions
and responses thereto, Judge Ditter agreed with the Plaintiffs that
a service contract between the parties dictated the terms of the
implied agreement.
CardConnect seeks reconsideration of Judge Ditter's findings or, in
the alternative, certification for interlocutory review.
CardConnect timely filed its Motion pursuant to Local Rule 7.1(g),
arguing that the Court erred by failing to apply the law governing
implied contracts and by failing to cite to a single legal
authority. It also asserts that the Court committed a clear error
of law when it circumvented the role of the jury and decided the
central issue by weighing evidence and deciding disputed issues of
fact. As a result, CardConnect contends that the Court should
reconsider Judge Ditter's September 26 Order to prevent manifest
injustice.
The Plaintiff, however, argues that tge Defendant clearly does not
agree with Judge Ditter's ruling but the Defendant cannot argue
that it was not given a full and fair opportunity to make its case
before the Court ruled.
Judge Pappert finds that CardConnect fails to offer any conflicting
precedent on Judge Ditter's discretionary course of action with
respect to his tailoring of discovery and the resolution of an
issue the parties agreed to submit to him. After Judge Ditter
ruled that there was no binding express contract, he ordered the
parties to exchange documents "relevant to the issue of the terms
of the implied contract. That Order stated that the Plaintiffs
will designate what they propose are the terms of the implied
contract with the intention that the parties will be able to
stipulate to the terms, and the Defendant will have 30 days to
respond to the Plaintiffs' proposed terms. After several telephone
conferences and the parties' unsuccessful attempt to stipulate to
the terms of the implied contract, Judge Ditter ordered the parties
to take discovery and submit memoranda on the issue, which he would
take under advisement and issue a ruling. He then did just that.
Finally, the moving party must establish that certification of the
appeal materially advances the ultimate termination of the
litigation by considering whether an immediate appeal would (1)
obviate the need for trial; (2) eliminate complex issues, thereby
greatly simplifying the trial; or (3) eliminate issues thus making
discovery much easier and less costly. The Judge finds that the
action is over two years old and discovery has been taken on an
important issue. A ruling in favor of CardConnect would not
materially advance the ultimate termination of the litigation
because the case would be remain in the same procedural posture
with next steps including class certification.
Based on the foregoing, Judge Pappert denied CardConnect's Motion
for Reconsideration as well as its request for certification for
interlocutory review. An appropriate Order follows.
A full-text copy of the Court's June 26, 2019 Memorandum is
available at https://is.gd/sKpxXX from Leagle.com.
TEH SHOU KAO & T S KAO, INC., ON BEHALF OF THEMSELVES AND ALL
OTHERS SIMILARLY SITUATED, Plaintiffs, represented by E. ADAM WEBB
-- Contact@WebbLLC.com -- WEBB KLASE & LEMOND, LLC, KENNETH J.
GRUNFELD -- kgrunfeld@golombhonik.com -- GOLOMB & HONIK PC. &
MATTHEW C. KLASE, WEBB KLASE, LEMOND, LLC.
CARDCONNECT CORP., Defendant, represented by ANGELO A. STIO, III --
stioa@pepperlaw.com -- PEPPER HAMILTON LLP, JAIME A. BIANCHI --
jbianchi@whitecase.com -- WHITE & CASE LLP, JAN P. LEVINE --
levinej@pepperlaw.com -- PEPPER HAMILTON LLP & SAMUEL D. HARRISON
-- harrisons@pepperlaw.com --PEPPER HAMILTON LLP.
COMMUNITY HEALTH: Court Certifies Class in Retirement System Suit
-----------------------------------------------------------------
NORFOLK COUNTY RETIREMENT SYSTEM, individually and on behalf of
others similarly situated, the Plaintiff, vs. COMMUNITY HEALTH
SYSTEMS, INC., WAYNE T. SMITH, and LARRY CASH, the Defendants, Case
No. 3:11-cv-00433 (N.D. Tenn.), the Hon. Judge Eli Richardson
entered an order on July 26, 2019:
1. certifying a class of:
"all persons who and entities who purchased the publicly
traded common stock of CHS from July 27, 2006 through
April 8, 2011, inclusive, or who were damaged thereby.
Excluded from the Class are Defendants, the officers and
directors of the company, at all relevant times, members
of their immediate families and their legal
representatives, heirs, successors or assigns and any
entry in which Defendants have or had a controlling
interest."; and
2. appointing Lead Plaintiff (NYC Funds) as class
representative, and Lowey Dannenberg as Class Counsel.[CC]
CONVERSE INC: 9th Cir. Flips Summary Judgment in Chavez Suit
------------------------------------------------------------
In the case, ERIC CHAVEZ, an individual and on behalf of all others
similarly situated, Plaintiff-Appellant, v. CONVERSE, INC., a
Delaware corporation Defendant-Appellee, Case No. 17-17070 (9th
Cir.), the U.S. Court of Appeals for the Ninth Circuit reversed the
District Court's order granting summary judgment for Converse.
Converse requires its retail employees to undergo "off the clock"
exit inspections every time they leave the store. Seeking
compensation for these exit inspections, Plaintiff Chavez brought
the instant class action on behalf of himself and similarly
situated Converse employees. The District Court granted summary
judgment for Converse, holding the Chavez's claims were barred by
the federal de minimis doctrine, which precludes recovery for
otherwise compensable amounts of time that are small, irregular, or
administratively difficult to record. The California Supreme Court
subsequently held in Troester v. Starbucks Corp., that the federal
de minimis doctrine does not apply to wage and hour claims brought
under California law.
For substantially the reasons given in the related case, Rodriguez
v. Nike Retail Services, Inc., the ninth Circuit holds that the
District Court erred in granting summary judgment based on the
federal de minimis doctrine. It likewise holds that on the current
record there are no alternative grounds for affirmance.
Accordingly, it reversed and remanded for further proceedings
consistent with Troester.
Each party will bear its own costs on appeal.
A full-text copy of the Court's June 28, 2019 Memorandum is
available at https://is.gd/6m4v3e from Leagle.com.
CREDIT BUREAU OF NAPA: Class Certification Sought in McKinney Suit
------------------------------------------------------------------
Pakita McKinney moves the Court to certify the class described in
the complaint of the lawsuit styled PAKITA MCKINNEY, Individually
and on Behalf of All Others Similarly Situated v. CREDIT BUREAU OF
NAPA COUNTY INC. d/b/a CHASE RECEIVABLES, Case No. 2:19-cv-01064-LA
(E.D. Wisc.), and further asks that the Court both stay the motion
for class certification and to grant the Plaintiff (and the
Defendant) relief from the Local Rules setting automatic briefing
schedules and requiring briefs and supporting material to be filed
with the Motion.
Dicta in the Supreme Court's decision in Campbell-Ewald Co. v.
Gomez, left open the possibility that a defendant facing a class
action complaint could moot a class representative's case by
depositing funds equal to or in excess of the maximum value of the
plaintiff's individual claim with the court and having the court
enter judgment in the plaintiff's favor prior to the filing of a
class certification motion, the Plaintiff asserts, citing
Campbell-Ewald Co. v. Gomez, 136 S. Ct. 663, 672 (2016).
To avoid the risk of a defendant mooting a putative class
representative's individual stake in the litigation, the Seventh
Circuit instructed plaintiffs to file a certification motion with
the complaint, along with a motion to stay briefing on the
certification motion. Damasco v. Clearwire Corp., 662 F.3d 891,
896 (7th Cir. 2011), overruled on other grounds, Chapman v. First
Index, Inc., 796 F.3d 783, 787 (7th Cir. 2015) ("The pendency of
that motion [for class certification] protects a putative class
from attempts to buy off the named plaintiffs.").
While the Seventh Circuit has held that the specific procedure
described in Campbell-Ewald cannot force the individual settlement
of a class representative's claims, the same decision cautions that
other methods may prevent a plaintiff from representing a class,
the Plaintiff tells the Court, citing Fulton Dental, LLC v. Bisco,
Inc., No. 16-3574, 2017 U.S. App. LEXIS 10839 *9-10 (7th Cir. June
20, 2017). The Plaintiff asserts that one defendant has attempted
a similar tactic by sending a certified check to the proposed class
representative. Bonin v. CBS Radio, Inc., No. 16-cv-674-CNC (E.D.
Wis.); see also Severns v. Eastern Account Systems of Connecticut,
Inc., Case No. 15-cv-1168, 2016 U.S. Dist. LEXIS 23164 (E.D. Wis.
Feb. 24, 2016).
The Plaintiff is obligated to move for class certification to
protect the interests of the putative class, the Plaintiff
contends.
As the Motion to certify a class is a placeholder motion as
described in Damasco, the parties and the Court should not be
burdened with unnecessary paperwork and the resulting expense when
short motion to certify and stay should suffice until an amended
motion is filed, the Plaintiff avers.
The Plaintiff also asks to be appointed as class representative,
and for the appointment of Ademi & O'Reilly, LLP, as class
counsel.[CC]
The Plaintiff is represented by:
John D. Blythin, Esq.
Mark A. Eldridge, Esq.
Jesse Fruchter, Esq.
Ben J. Slatky, Esq.
ADEMI & O'REILLY, LLP
3620 East Layton Avenue
Cudahy, WI 53110
Telephone: (414) 482-8000
Facsimile: (414) 482-8001
E-mail: jblythin@ademilaw.com
meldridge@ademilaw.com
jfruchter@ademilaw.com
bslatky@ademilaw.com
DEL FRISCO'S: Sabatini Balks at L Catterton Merger Deal
-------------------------------------------------------
ERIC SABATINI, Individually and On Behalf of All Others Similarly
Situated, the Plaintiff, vs. DEL FRISCO'S RESTAURANT GROUP, INC.,
IAN R. CARTER, NORMAN J. ABDALLAH, PAULINE J. BROWN, DAVID B. BARR,
WILLIAM LAMAR JR., and JOE REECE, Defendants, Case No.
1:19-cv-01385-UNA (D. Del., July 25, 2019), alleges that the
Defendants violated Sections 14(a) and 20(a) of the Securities
Exchange Act of 1934 in connection with a proposed transaction
announced on June 24, 2019, pursuant to which Del Frisco's
Restaurant Group, Inc. will be acquired by L Catterton.
On June 23, 2019, Del Frisco's Board of Directors caused the
Company to enter into an agreement and plan of merger with L
Catterton. Pursuant to the terms of the Merger Agreement, Del
Frisco's stockholders will receive $8.00 in cash for each share of
Del Frisco's common stock they own.
On July 23, 2019, the Defendants filed a proxy statement with the
United States Securities and Exchange Commission in connection with
the Proposed Transaction. The Proxy Statement omits material
information with respect to the Proposed Transaction, which renders
the Proxy Statement false and misleading. Because of the
misleading Proxy Statement, the Plaintiff and the Class are
threatened with irreparable harm, the lawsuit says.
Del Frisco's is a collection of 78 restaurants across 17 states and
Washington, D.C., including Del Frisco's Double Eagle Steakhouse,
Del Frisco's Grille, Barcelona Wine Bar, and bartaco.[BN]
Attorneys for the Plaintiff are
Richard A. Maniskas, Esq.
RM LAW, P.C.
1055 Westlakes Drive, Suite 300
Berwyn, PA 19312
Telephone: (484) 324-6800
Facsimile: (484) 631-1305
E-mail: rm@maniskas.com
- and -
Gina M. Serra, Esq.
Brian D. Long, Esq.
RIGRODSKY & LONG, P.A.
300 Delaware Avenue, Suite 1220
Wilmington, DE 19801
Telephone: (302) 295-5310
Facsimile: (302) 654-7530
E-mail: bdl@rl-legal.com
gms@rl-legal.com
DIGITAL CONCRETE: Compoli Sues Over Unpaid Overtime Wages
---------------------------------------------------------
TIMOTHY COMPOLI and COREY CARDINAL, Individually and on behalf of
others similarly situated, Plaintiffs, v. DIGITAL CONCRETE IMAGING,
INC. and BRYAN W. BACHELLER, individually, Defendants, Case No.
8:19-cv-01876 (M.D. Fla., July 31, 2019) sues the Defendants
pursuant to the Fair Labor Standards Act of 1938.
The complaint alleges that Plaintiffs regularly and routinely
worked over 40 hours in a work week but were not paid time and a
one-half their regular hourly rate for each and every hour that
they worked. The Defendants knew or had reason to know that
Plaintiffs performed work in excess of 40 hours per work week and
their violations of the FLSA were intentional and willful, says the
complaint.
Plaintiffs began their employment with Defendants in April 2017 as
Utility Locators.
DIGITAL was a Florida for profit corporation, authorized and doing
business in this judicial district.[BN]
The Plaintiffs are represented by:
Wolfgang M. Florin, Esq.
Christopher D. Gray, Esq.
FLORIN GRAY BOUZAS OWENS, LLC
16524 Pointe Village Drive, Suite 100
Lutz, FL 33558
Phone (727) 254-5255
Facsimile (727) 483-7942
Email: wolfgang@fgbolaw.com
chris@fgbolaw.com
EDEN CREAMERY: Court Narrows Claims in 1st Amended Kamal Suit
-------------------------------------------------------------
In the case, YOUSSIF KAMAL, et al., on their own behalf and on
behalf of all others similarly situated, Plaintiffs, v. EDEN
CREAMERY, LLC dba HALO TOP CREAMERY, JAMES WOOLVERTON, Defendants,
Case No. 18-cv-01298-BAS-AGS (S.D. Cal.), Judge Synthia Bashant of
the U.S. District Court for the Southern District of California
granted in part and denied in part the Defendants' motion to
dismiss all claims in the operative First Amended Complaint
("FAC").
At the bottom of the case are allegations of underfilled Halo Top
ice cream pints. Plaintiffs Kamal, Gillian Neely, Richard Lichten,
Susan Cox, Nick Tovar, Michele Kinman, Ralph Jacobson, Ashley
Petefish and Teri Brown contend that what looks like a full pint of
Halo Top ice cream to consumers on the outside is, for some
consumers, less than a full pint -- sometimes "dramatically" so.
According to them, Eden Creamery, the company that produces,
markets, and advertises, and sells Halo Top, routinely underfills
its pint containers of ice cream.
The Plaintiffs bring the action against Eden Creamery and its
founder and CEO, Defendant Woolverton, alleging that the labeling,
advertising, and marketing of Halo Top ice cream pints -- all of
which allegedly focuses on the Halo Top pint's pint-size -- is
misleading, deceptive, and fraudulent due to Eden Creamery's
alleged underfilling. On the basis of this alleged conduct, the
Plaintiffs raise claims against the Defendants for common law fraud
under California law and statutory claims for violation of
California's Unfair Competition Law; California's False Advertising
Law; various provisions of the California Consumers Legal Remedies
Act ("CLRA"),; the Arizona Consumer Fraud Act; the Colorado
Consumer Protection Act; the Illinois Consumer Protection Fraud and
Deceptive Business Practices Act; the Nevada Deceptive Trade
Practices Act; the New Jersey Consumer Fraud Act; and the New York
General Business Law.
The Plaintiffs seek to represent a nationwide class of consumers
who purchased one or more Halo Top ice cream pints and who received
less than a pint or, alternatively, a multi-state class based on
where one of the named Plaintiffs purchased an underfilled pint.
The Defendants move to dismiss all claims in the FAC. The
Plaintiffs oppose.
Plaintiffs Kamal and Neely filed the 13-page original complaint
against Eden Creamery on June 15, 2018. These original Plaintiffs
sought to represent a putative nationwide class or, alternatively,
a single-state California class for a breach of implied contract
claim and claims asserted under the UCL, FAL, CLRA, for Eden
Creamery's allegedly underfilled Halo Top pints.
After Eden Creamery moved to dismiss the original complaint, the
Plaintiffs filed the FAC. The 45-page FAC adds seven new
Plaintiffs and names Woolverton as a Defendant. The FAC discards
the original complaint's breach of implied contract claim and,
instead, asserts a common law fraud claim for intentional
misrepresentation and omission. With the presence of the new
Plaintiffs who allegedly purchased Halo Top pints in states other
than California, the FAC includes a swath of state consumer law
claims under the laws of Arizona, Colorado, Illinois, Nevada, New
Jersey, and New York.
Judge Bashant granted in part and denied in part the Defendants'
motion to dismiss the FAC.
She granted Defendants' motion as follows: (i) Plaintiff Petefish's
AFCA claims that pre-date Sept. 8, 2017 are dismissed with
prejudice as barred by the applicable statute of limitations; (ii)
Plaintiff Brown's request for monetary relief under the ICFDPA is
dismissed with prejudice because such relief is not available;
(iii) Plaintiff Jacobson's NDTPA claim is dismissed withoout
prejudice, and Jacobson is granted leave to amend no later than
July 10, 2019 to allege, with factual allegations, that he is among
the class of persons that may assert an NDTPA claim; (iv) the New
York GBL claims asserted on behalf of a nationwide class are
dismissed with prejudice, and the ruling does not affect any such
claims asserted on behalf of a New York single-state putative
subclass; and (v) any fraud by omission claim is dismissed.
The Judge otherwise denied the Defendants' motion. The Defendants
will answer the FAC no later than July 19, 2019. G iven the length
of time the case has been pending since the FAC was filed, the
Judge will not grant an extension of the deadline absent a
particularized showing of extraordinary circumstances.
A full-text copy of the Court's June 26, 2019 Order is available at
https://is.gd/vOHbp2 from Leagle.com.
Youssif Kamal, on their own behalf and on behalf of all others
similarly situated, Gillian Neely, on their own behalf and on
behalf of all others similarly situated, Richard Lichten, on their
own behalf and on behalf of all others similarly situated, Susan
Cox, on their own behalf and on behalf of all others similarly
situated, Nick Tovar, on their own behalf and on behalf of all
others similarly situated, Michele Kinman, on their own behalf and
on behalf of all others similarly situated, Ralph Jacobson, on
their own behalf and on behalf of all others similarly situated &
Ashley Petefish, on their own behalf and on behalf of all others
similarly situated, Plaintiffs, represented by Andrew Joseph Brown
-- andrewb@thebrownlawfirm.com -- The Law Offices of Andrew J.
Brown.
Eden Creamery, LLC, doing business as Halo Top Creamery & Justin T
Woolverton, Defendants, represented by Jeffrey A. Rosenfeld --
jeffrey.rosenfeld@alston.com -- Alston & Bird.
ENTEGRA FINANCIAL: Suits over First Citizens Merger Deal Filed
--------------------------------------------------------------
Entegra Financial Corp. said in its Form 8-K filing with the U.S.
Securities and Exchange Commission filed on July 25, 2019, that the
company has been named as a defendant in two class action suits
related to its merger with First Citizens.
On April 23, 2019, Entegra's Board of Directors caused the Company
to enter into an agreement and plan of merger with First Citizens.
Pursuant to the terms of the Merger Agreement, shareholders of
Entegra will receive $30.18 in cash for each share of Entegra they
own.
Two lawsuits challenging the mergers were filed on June 20, 2019.
The lawsuits, filed by purported shareholders of Entegra, are
captioned, respectively, Karp v. Edwards et al., No. 1:19-cv-05798,
filed as an individual action in the United States District Court
for the Southern District of New York, and Parshall v. Entegra
Financial Corp. et al., No. 1:19-cv-01152, a putative class action
on behalf of Entegra shareholders, filed in the United States
District Court for the District of Delaware (collectively, the
"Merger Litigation").
Both lawsuits name as defendants Entegra, its directors, First
Citizens and certain of First Citizens’ subsidiaries, and seek
(among other relief) an order enjoining completion of the mergers.
The Merger Litigation alleges that the definitive proxy statement
omitted material information in violation of Sections 14(a) and
20(a) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), and certain rules and regulations promulgated
thereunder by not disclosing in the Proxy Statement certain
allegedly material facts.
Entegra believes that the claims asserted in the Merger Litigation
are entirely without merit. However, to avoid the risks that the
lawsuits may delay or otherwise adversely affect the consummation
of the mergers and to minimize the expense of defending the Merger
Litigation, Entegra has decided to make an additional disclosures
related to the mergers.
A copy of the supplemental disclosure is available at
https://urlzs.com/UdkJb.
Entegra Financial Corp., incorporated on May 31, 2011, is the
holding company for Entegra Bank. The Company provides a range of
financial services through full-service offices located in
Cherokee, Henderson, Jackson, Macon, Polk and Transylvania
counties, North Carolina and Anderson, Greenville, and Spartanburg
counties, South Carolina. It provides full service retail and
commercial banking products, as well as wealth management services
through a third party. It operates through retail banking segment.
The company is based in Franklin, North Carolina.
EXPEDIA GROUP: Faces Liberty Expedia Merger-Related Suits
---------------------------------------------------------
Expedia Group, Inc. said in its Form 10-Q Report filed with the
Securities and Exchange Commission on July 25, 2019, for the
quarterly period ended June 30, 2019, that the company is defending
against two class action suits related to the Company's proposed
acquisition of Liberty Expedia Holdings, Inc.
On April 15, 2019, Expedia Group, Inc. ("Expedia Group" or the
"Company") entered into an Agreement and Plan of Merger, as amended
by Amendment No. 1 to Agreement and Plan of Merger, dated as of
June 5, 2019 (the "Merger Agreement"), by and among the Company,
LEMS I LLC, a Delaware limited liability company and a wholly owned
subsidiary of Expedia Group ("Merger LLC"), LEMS II Inc., a
Delaware corporation and a wholly owned subsidiary of Merger LLC
("Merger Sub"), and Liberty Expedia Holdings, Inc. ("LEXPE").
The Merger Agreement provides for, among other things and subject
to the satisfaction or waiver of certain specified conditions set
forth therein, (i) the merger of Merger Sub with and into LEXPE
(the "Merger"), with LEXPE surviving the Merger as a wholly owned
subsidiary of Merger LLC, and (ii) immediately following the
Merger, the merger of LEXPE (as the surviving corporation in the
Merger) with and into Merger LLC (the "Upstream Merger", and
together with the Merger, the "Combination"), with Merger LLC
surviving the Upstream Merger as a wholly owned subsidiary of
Expedia Group.
On June 26, 2019, a purported stockholder brought an
action(Teamsters Union Local No. 142 Pension Fund v. Barry Diller,
et al.) in the Delaware Court of Chancery against the Company and
all current and one former member of the Company's board of
directors that seeks class action status on behalf of all of the
Company's stockholders.
The action alleges, among other things, that the individual
defendants wrongfully caused the Company to enter into certain
agreements with Mr. Diller, the Company's Executive Chairman, in
connection with the Company's proposed acquisition of Liberty
Expedia Holdings, Inc.
While plaintiff has not sought to block the closing of the
acquisition, the action seeks to undo certain aspects of the
acquisition agreements, including by seeking an order converting
high vote Class B common stock of Expedia Group transferred to or
acquired by Mr. Diller under the terms of those agreements into low
vote common stock of Expedia Group.
On July 24, 2019, a second purported stockholder, Tova Plaut, filed
a substantially similar complaint in the Delaware Court of Chancery
asserting substantially the same claims as those in the Teamsters
complaint against the same Defendants based on substantially
similar factual allegations.
Expedia Group, Inc., together with its subsidiaries, operates as an
online travel company in the United States and internationally. It
operates through Core OTA, Trivago, HomeAway, and Egencia segments.
The company was formerly known as Expedia, Inc. and changed its
name to Expedia Group, Inc. in March 2018. Expedia Group, Inc. was
founded in 1996 and is headquartered in Bellevue, Washington.
EXPEDIA GROUP: Faces Steamfitters Local 449 Suit
------------------------------------------------
Expedia Group, Inc. said in its Form 10-Q Report filed with the
Securities and Exchange Commission on July 25, 2019, for the
quarterly period ended June 30, 2019, that the company has been
named as a defendant in a putative class action suit entitled,
Steamfitters Local 449 v. Barry Diller, et al.
On July 24, 2019, a purported stockholder filed a lawsuit in the
Delaware Court of Chancery asserting both direct claims on behalf
of a putative class of Company shareholders and derivative claims
on behalf of the Company against current and former directors and
officers of the Company (the "Individual Defendants") and The
Diller-von Furstenberg Foundation. The Company was named as a
nominal defendant.
The action asserts claims for breach of fiduciary duty, unjust
enrichment and declaratory relief alleging, among other things,
that the Individual Defendants wrongfully caused the Company to
enter into certain agreements with Mr. Diller, the Company's
Executive Chairman, in connection with the Company's proposed
acquisition of Liberty Expedia Holdings, Inc.
Plaintiff does not seek to block the closing of the acquisition,
but does seek, inter alia, an order declaring that Mr. Diller has
no contractual right to obtain high vote Class B common stock of
Expedia Group in connection with the acquisition or to prevent the
acquisition from taking place in the absence of his agreements with
the Company in this regard, as well as monetary damages.
Expedia Group, Inc., together with its subsidiaries, operates as an
online travel company in the United States and internationally. It
operates through Core OTA, Trivago, HomeAway, and Egencia segments.
The company was formerly known as Expedia, Inc. and changed its
name to Expedia Group, Inc. in March 2018. Expedia Group, Inc. was
founded in 1996 and is headquartered in Bellevue, Washington.
FACEBOOK INC: Continues to Defend Cyber-Attack Related Suits
------------------------------------------------------------
Facebook, Inc. said in its Form 10-Q Report filed with the
Securities and Exchange Commission on July 25, 2019, for the
quarterly period ended June 30, 2019, that the company continues to
defend multiple putative class action suits in connection with a
third-party cyber-attack.
Beginning on September 28, 2018, multiple putative class actions
were filed in state and federal courts in the United States and
elsewhere against the company alleging violations of consumer
protection laws and other causes of action in connection with a
third-party cyber-attack that exploited a vulnerability in
Facebook's code to steal user access tokens and access certain
profile information from user accounts on Facebook, and seeking
unspecified damages and injunctive relief.
Facebook said, "We believe these lawsuits are without merit, and we
are vigorously defending them. In addition, the events surrounding
this cyber-attack became the subject of Irish Data Protection
Commission (IDPC) and other government inquiries."
Facebook, Inc., incorporated on July 29, 2004, is focused on
building products that enable people to connect and share through
mobile devices, personal computers and other surfaces. The Company
also enables people to discover and learn about what is going on in
the world around them, enables people to share their opinions,
ideas, photos and videos, and other activities with audiences
ranging from their friends to the public, and stay connected by
accessing its products. The Company's products include Facebook,
Instagram, Messenger, WhatsApp and Oculus. The company is based in
Menlo Park, California.
FACEBOOK INC: Settlement Reached in FTC & SEC Probes
----------------------------------------------------
Facebook, Inc. said in its Form 10-Q Report filed with the
Securities and Exchange Commission on July 25, 2019, for the
quarterly period ended June 30, 2019, that the company has entered
into a settlement and modified consent order to resolve the Federal
Trade Commission (FTC) inquiry, and also enters into a settlement
to resolve the Securities and Exchange Commission's (SEC) inquiry,
in each case pending federal court approval of the respective
settlement.
Beginning on March 20, 2018, multiple putative class actions and
derivative actions were filed in state and federal courts in the
United States and elsewhere against the company and certain of its
directors and officers alleging violations of securities laws,
breach of fiduciary duties, and other causes of action in
connection with the company's platform and user data practices as
well as the misuse of certain data by a developer that shared such
data with third parties in violation of the company's terms and
policies, and seeking unspecified damages and injunctive relief.
Beginning on July 27, 2018, two putative class actions were filed
in federal court in the United States against the company and
certain of its directors and officers alleging violations of
securities laws in connection with the disclosure of the company's
earnings results for the second quarter of 2018 and seeking
unspecified damages.
These two actions subsequently were transferred and consolidated in
the U.S. District Court for the Northern District of California
with the putative securities class action described above relating
to the company's platform and user data practices.
The company believes that these lawsuits are without merit, and the
company is vigorously defending them. In addition, the company's
platform and user data practices, as well as the events surrounding
the misuse of certain data by a developer became the subject of
U.S. Federal Trade Commission (FTC), SEC, state attorneys general,
and other government inquiries in the United States, Europe, and
other jurisdictions.
Facebook said, "In July 2019, we entered into a settlement and
modified consent order to resolve the FTC inquiry, and we also
entered into a settlement to resolve the SEC inquiry, in each case
pending federal court approval of the respective settlement. Among
other matters, our settlement with the FTC requires us to pay a
penalty of $5.0 billion and to significantly enhance our practices
and processes for privacy compliance and oversight. In addition,
our settlement with the SEC requires us to pay a penalty of $100
million."
Facebook, Inc., incorporated on July 29, 2004, is focused on
building products that enable people to connect and share through
mobile devices, personal computers and other surfaces. The Company
also enables people to discover and learn about what is going on in
the world around them, enables people to share their opinions,
ideas, photos and videos, and other activities with audiences
ranging from their friends to the public, and stay connected by
accessing its products. The Company's products include Facebook,
Instagram, Messenger, WhatsApp and Oculus. The company is based in
Menlo Park, California.
FLIRT NY: Fails to Properly Pay Workers, Nikonov Suit Says
----------------------------------------------------------
DENYS NIKONOV, Individually and on behalf of all other persons
similarly situated, Plaintiff, v. FLIRT NY INC. d/b/a FLIRT BEAUTY
BOUTIQUE, VIOLETA CHULPAYEV, and ARIEL CHULPAYEV, Jointly and
Severally, Defendants, Case No. 1:19-cv-07128 (S.D. N.Y., July 30,
2019) alleges that Defendants willfully violated the New York Labor
Law ("NYLL") and the Fair Labor Standards Act ("FLSA") by failing
to pay wages for all hours worked, failing to pay overtime premium
pay, failing to pay spread-of-hours pay, unlawfully retaining
gratuities, failing to provide the Notice and Acknowledgement of
Payrate and Payday under N.Y. Lab. Law, and failing to provide an
accurate wage statement under New York Labor Law.
During his employment with Defendants, Nikonov often worked more
than 10 hours per day. Nikonov regularly worked more than 40 hours
per week, at least 2 to 3 weeks per month. The Defendants either
did not allow Nikonov an uninterrupted 30-minute meal break or
permitted him at most a 5 to15-minute break. When paying him an
hourly rate, Defendants did not pay Nikonov overtime premium pay
for any hours he worked over 40 hours in any given week. When being
paid strictly commissions, Defendants did not ensure his effective
hourly rate equaled 1.5 times the statutory minimum wage for every
hour he worked above 40 in a week, says the complaint.
Plaintiff Nikonov was employed by Defendants as a hair stylist from
February 8, 20192 until April 20, 2019.
Flirt Beauty is a hair salon located at 1014 Second Avenue, New
York, New York 10022. Defendants also own and operate a spa and
brow salon in Manhasset, New York called Flirt Spa & Brow Bar.[BN]
The Plaintiff is represented by:
Douglas B. Lipsky, Esq.
Milana Dostanitch, Esq.
LIPSKY LOWE LLP
630 Third Avenue, Fifth Floor
New York, NY 10017-6705
Phone: 212.392.4772
Email: doug@lipskylowe.com
milana@lipskylowe.com
FORD MOTOR: Pinon Sues over Breach of Warranty
----------------------------------------------
A class action complaint has been filed against Ford Motor Company
for alleged violations of the Magnuson-Moss Warranty Act. The case
is captioned Ramiro Antonio Sandoval Pinon, on behalf of himself
and all others similarly situated, Plaintiff, vs. Ford Motor
Company, Defendant, Case No. 1:19-cv-02044-NYW (D.Colo., July 15,
2019). This consumer protection lawsuit is assigned to Hon. Judge
Nina Y. Wang.
Headquartered in Dearborn Michigan, Ford Motor is a global
automotive and mobility company. Its business includes designing,
manufacturing, marketing, and servicing a line of Ford cars,
trucks, and sport utility vehicles, as well as Lincoln luxury
vehicles. [BN]
The Plaintiff is represented by:
Ivy Tran Ngo, Esq.
FRANKLIN D. AZAR & ASSOCIATES PC-AURORA
14426 East Evans Avenue
Aurora, CO 80014-1474
Telephone: (303) 573-3000
Facsimile: (303) 759-5203
E-mail: ngoi@fdazar.com
- and -
Margeaux Rachelle Azar, Esq.
FRANKLIN D. AZAR & ASSOCIATES PC-AURORA
14426 East Evans Avenue
Aurora, CO 80014-1474
Telephone: (303) 757-3300
Facsimile: (720) 213-5131
E-mail: azarm@fdazar.com
GENOCEA BIOSCIENCES: Emerson Class Action Dismissed
---------------------------------------------------
Genocea Biosciences, Inc. said in its Form 10-Q Report filed with
the Securities and Exchange Commission on July 25, 2019, for the
quarterly period ended June 30, 2019, that the case entitled,
Emerson v. Genocea Biosciences et al., U.S. District Court (Mass.),
Civil Action No. 17-cv-12137-PBS (the "Emerson Action"), has been
dismissed
In 2017, three purported shareholders filed placeholder complaints
against Genocea and certain of its officers alleging violations of
the federal securities laws in connection with the Company's
disclosures related to GEN-003, a Phase 3-ready investigational
immunotherapy for the treatment of genital herpes infections.
On February 12, 2018, the Court appointed the Genocea Investor
Group (a group of five purported shareholders) as lead plaintiff in
the consolidated proposed class action, and appointed Scott+Scott
LLP, Levi & Korsinsky LLP, and Block & Leviton LLP as lead counsel.
The lead plaintiff filed an amended complaint on March 29, 2018.
Defendants filed a motion to dismiss on May 14, 2018. The lead
plaintiff filed an opposition to defendants' motion to dismiss on
June 28, 2018, as well as a motion to strike certain documents
attached to defendants' motion to dismiss, on June 29, 2018.
Defendants filed a reply in further support of the dismissal
motion, and an opposition to plaintiffs' motion to strike, on July
30, 2018.
The court held oral argument on the motion to dismiss and motion to
strike on September 25, 2018. On December 6, 2018, the court
granted defendants' motion to dismiss and, because the court's
decision did not consider the documents plaintiffs sought to
strike, did not rule on plaintiffs' motion to strike.
On January 7, 2019, plaintiffs filed a notice of appeal in the
District of Massachusetts to appeal the court's order granting
defendants' motion to dismiss.
The appeal, captioned Yuksel v. Genocea Biosciences, Inc., et al.,
U.S. Court of Appeal for the First Circuit, Case No. 19-1036, was
docketed in the First Circuit on January 15, 2019.
By order dated January 29, 2019, the First Circuit set a deadline
of March 11, 2019 for plaintiffs' opening brief.
Shortly thereafter, however, plaintiffs made a settlement offer to
defendants, and the parties subsequently entered into a settlement
agreement and general release on April 22, 2019.
In connection with the settlement agreement, the parties fully and
finally resolved the Emerson Action, including the entry of a
general release, and plaintiffs agreed to request a voluntary
dismissal of the appeal with prejudice pursuant to Federal Rule of
Appellate Procedure 42(b).
On May 9, 2019, plaintiffs filed the voluntarily dismissal motion.
The Court dismissed the Emerson Action on May 23, 2019.
Genocea Biosciences, Inc., a biopharmaceutical company, discovers
and develops novel cancer vaccines. Genocea Biosciences, Inc. was
founded in 2006 and is headquartered in Cambridge, Massachusetts.
HELIUS MEDICAL: Evans Files Suit Over Share Price Drop
------------------------------------------------------
WILLIAM EVANS, Individually and On Behalf of All Others Similarly
Situated, Plaintiff, v. HELIUS MEDICAL TECHNOLOGIES, INC., PHILIPPE
DESCHAMPS, JOYCE LAVISCOUNT, and JONATHAN SACKIER, Defendants, Case
No. 1:19-cv-07171 (S.D. N.Y., July 31, 2019) is a class action on
behalf of persons and entities that acquired Helius securities
between November 9, 2017 and April 10, 2019, inclusive, seeking to
pursue remedies under the Securities Exchange Act of 1934 (the
"Exchange Act").
The Company's Portable Neuromodulation Stimulator ("PoNS") is
purportedly a medical device for the treatment of chronic balance
deficit associated with mild to moderate traumatic brain injury.
Throughout the Class Period, Defendants made materially false
and/or misleading statements, as well as failed to disclose
material adverse facts about the Company's business, operations,
and prospects. Specifically, Defendants failed to disclose to
investors that: (i) that the clinical study on the use of PoNS did
not produce statistically significant results regarding the
effectiveness of the treatment; (ii) as a result, the clinical
study did not support the Company's application for regulatory
clearance; (iii) as a result, the Company was unlikely to receive
regulatory approval of PoNS; and (iv) as a result of the foregoing,
Defendants' positive statements about the Company's business,
operations, and prospects were materially false and/or misleading
and/or lacked a reasonable basis.
On January 25, 2019, the Company announced that it had received a
request for additional data and information from the U.S. Food and
Drug Administration (the "FDA") related to the Company's request
for de novo classification and 510(k) clearance of PoNS. On this
news, the Company's share price fell $0.48, or approximately 6%, to
close at $7.13 per share on January 25, 2019, on unusually heavy
trading volume. On April 10, 2019, the Company revealed that the
FDA had denied regulatory clearance of the PoNS device because the
Company had not provided sufficient clinical data to show the
device was effective. On this news, the Company's share price fell
$4.11, or more than 66%, to close at $2.10 per share on April 10,
2019, on unusually heavy trading volume. As a result of Defendants'
wrongful acts and omissions, and the precipitous decline in the
market value of the Company's securities, Plaintiff and other Class
members have suffered significant losses and damages, says the
complaint.
Plaintiff purchased Helius securities during the Class Period.
Helius is a neurotechnology company that purports to develop,
license, or acquire non-invasive technologies targeted at reducing
symptoms of neurological disease or trauma.[BN]
The Plaintiff is represented by:
Jeremy A. Lieberman, Esq.
J. Alexander Hood II, Esq.
POMERANTZ LLP
600 Third Avenue, 20th Floor
New York, NY 10016
Phone: (212) 661-1100
Facsimile: (212) 661-8665
Email: jalieberman@pomlaw.com
ahood@pomlaw.com
- and -
Patrick V. Dahlstrom, Esq.
POMERANTZ LLP
10 South La Salle Street, Suite 3505
Chicago, IL 60603
Phone: (312) 377-1181
Facsimile: (312) 377-1184
Email: pdahlstrom@pomlaw.com
HERITAGE-CRYSTAL CLEAN: Certification in Adelphia's Suit Affirmed
-----------------------------------------------------------------
Heritage-Crystal Clean, Inc. said in its Form 10-Q Report filed
with the Securities and Exchange Commission on July 25, 2019, for
the quarterly period ended June 15, 2019, that the Illinois Court
of Appeals has affirmed a circuit court order establishing the
certification of three classes in Adelphia, Inc. d/b/a/ Village
Auto and Dan's One Stop Shop, LLC v. Heritage-Crystal Clean, Inc.
and Heritage-Crystal Clean, LLC, Case No. 15-L-386.
The Company is currently defending a putative class action lawsuit,
Adelphia, Inc. d/b/a/ Village Auto and Dan's One Stop Shop, LLC v.
Heritage-Crystal Clean, Inc. and Heritage-Crystal Clean, LLC, Case
No. 15-L-386, in the Circuit Court for the Sixteenth Judicial
Circuit in Kane County, Illinois, alleging that the Company charged
fees in violation of both its contracts and applicable state laws.
The case involves claims brought under the Illinois Consumer Fraud
and Deceptive Business Practices Act, 815 ILCS 505/1 et seq., as
well as claims for breach of contract and unjust enrichment.
The case has been brought as a putative class action on behalf of
all customers of HCC who entered into a written contract and have
paid a fuel surcharge from 2005 to present. The Circuit Court
granted Plaintiffs' request for class certification on August 28,
2018.
Heritage-Crystal Clean said, "We have petitioned the Illinois Court
of Appeals for an interlocutory appeal of this order. It was
granted and we proceeded with the appellant process. On June 17,
2019, the Illinois Court of Appeals affirmed the Circuit Court's
order establishing the certification of three classes. As of June
15, 2019, no liability was accrued related to this lawsuit.
Heritage-Crystal Clean, Inc., through its subsidiary,
Heritage-Crystal Clean, LLC, provides parts cleaning, and hazardous
and non-hazardous containerized waste services to small and
mid-sized customers in the vehicle maintenance and manufacturing
services industries in North America. It operates in two segments,
Environmental Services and Oil Business. Heritage-Crystal Clean,
Inc. was incorporated in 2007 and is headquartered in Elgin,
Illinois.
HONEYWELL INT'L: Pacheco Seeks More Time to File Certiorari Bid
---------------------------------------------------------------
Plaintiffs Augustine Pacheco and Vicki Hansen ask Justice Neil M.
Gorsuch for an extension--from August 14 to October 13, 2019--to
file their petition for writ of certiorari in the matter entitled
AUGUSTINE PACHECO and VICKI HANSEN, for themselves and others
similarly-situated, Petitioners-Applicants v. HONEYWELL
INTERNATIONAL, INC., in the Supreme Court of the United States.
The Lower Court cases are Augustine Pacheco and Vicki Hansen, for
themselves and others similarly-situated Appellees v. Honeywell
International Inc., Case No. No: 18-1006, and Augustine Pacheco and
Vicki Hansen, for themselves and others similarly-situated
Appellees v. Honeywell International Inc. Appellant, Case No.
18-1294, in the United States Court of Appeals for the Eighth
Circuit.
According to the Plaintiffs, the Eighth Circuit reversed, invoking
a flawed Sixth Circuit decision which held that absent "explicit"
vesting language, a promise of healthcare until age 65 ends at
labor contract expiration. The Eighth Circuit's (1) March 21, 2019
judgment and decision; (2) May 16, 2019 order denying rehearing en
banc; and (3) June 4, 2019 order denying a stay of the mandate are
attached to the petition.
The District Court case is styled AUGUSTINE PACHECO v. HONEYWELL
INTERNATIONAL, INC., Case No. 0:17-cv-05048-SRN, in the U.S.
District Court for the District of Minnesota - Minneapolis.
As previously reported in the Class Action Reporter, the lawsuit is
brought to enforce collectively-bargained promises of
Honeywell-sponsored healthcare until age 65 for employees, who took
early retirement under the Honeywell-sponsored pension plan.[BN]
The Petitioner-Applicants are represented by:
Stuart M. Israel, Esq.
John G. Adam, Esq.
LEGGHIO & ISRAEL, P.C.
306 South Washington, Suite 600
Royal Oak, MI 48067
Telephone: (248) 398-5900
E-mail: israel@legghioisrael.com
jga@legghioisrael.com
JM SMUCKER: Order on Format for Doc Productions in Robinson Entered
-------------------------------------------------------------------
Judge Haywood S. Gilliam, Jr. of the U.S. District Court for the
Northern District of California has entered an order on the
stipulated format for document productions in the case, SHELLY
ROBINSON, individually and on behalf of all others similarly
situated, Plaintiff, v. THE J.M. SMUCKER COMPANY, an Ohio
corporation; and DOES 1 through 10, inclusive Defendants, Case No.
4:18-cv-04654-HSG (N.D. Cal.).
The Order will govern discovery of electronically stored
information ("ESI") in the case as a supplement to the Federal
Rules of Civil Procedure, the Court's Guidelines for the Discovery
of ESI, and any other applicable orders and rules.
The parties agreed that to the extent that the producing party
elects to produce hard copy documents in electronic format, such
documents will be produced in the following format:
a. Single page Group 4 Tagged Image File Format (.TIF or
.TIFF) files at 300 × 300 dpi resolution and 8.5 × 11-inch page
size (size for size), unless a document requires a higher
resolution in order to be appropriately viewed.
b. A unique Bates number will be assigned to each page, and
branded in the lower right-hand corner of the page, but will not
obscure any part of the underlying image. Each image should have a
unique file name, which will be the Bates number of the individual
page.
c. Any confidentiality or other endorsements will be branded
on the lower left-hand corner of the page. The parties will use
reasonable measures to ensure that any such branding does not
obscure any part of the underlying image.
d. In scanning paper documents, distinct documents should not
be merged into a single record, and single documents should be
merged into multiple records (i.e., paper documents should be
logically unitized). The parties will make their best efforts to
have their vendors unitize documents correctly and will commit to
address situations where there are improperly unitized documents.
e. The parties agreed that any file folders/binders/dividers
and/or documents affixed to hard copy documents will be scanned as
separate documents.
f. The appropriate load/unitization files in accordance with
attached Exhibit A and consistent with the specifications for such
files.
g. The parties agreed that the producing party also produce
searchable optical character recognition ("OCR") text of scanned
paper documents consistent with the specifications for Searchable
Text.
The parties agreed that certain documents will be produced in
native format, including:
a. Spreadsheet formatted document (e.g., Microsoft Excel
Files);
b. Presentation formatted documents (e.g., Microsoft
PowerPoint Files; and
c. Photographic or graphics images, video or audio files
(non-trivial) (e.g., .jpg, .jpeg,.raw, .png, .dwg, .mp3, .mpeg,
.avi, .dvi Files) x Transferable databases (e.g., Microsoft Access
Files) x Project tracking documents (e.g., Microsoft Project). Any
documents produced in native format should be produced in
accordance with the following specifications:
i. A unique document number and confidentiality
designation will be used as the file name, and the original file
name and file extension will be preserved in the corresponding load
file. An example of this convention would be
XXXXXX0000001_HighlyConfidential.doc.
ii. For each produced native file, the producing party
will provide a static image slipsheet indicating that the document
was produced in native format and providing the unique Bates number
for the corresponding native file.
iii. For each document produced in native format, the
producing party will provide all metadata contained in the field
identified in Exhibit B, to the extent that such metadata already
exists—i.e., there is no obligation to create any metadata.
Except for those documents produced in native format, the parties
agreed that ESI will be produced in TIFF format according to the
following specifications:
a. Single page Group 4 Tagged Image File Format (.TIF or
.TIFF) files at 300 × 300 dpi resolution and 8.5 × 11-inch page
size (size for size).
b. The appropriate load/unitization files in accordance with
attached Exhibit B and consistent with the specifications for such
files.
c. A unique Bates number will be assigned to each page, and
branded in the lower right-hand corner of the page, but will not
obscure any part of the underlying image. Each image should have a
unique file name, which will be the Bates number of the individual
page.
d. Any confidentiality or other endorsements will be branded
on the lower left-hand corner of the page. The parties will use
reasonable measures to ensure that any such branding does not
obscure any part of the underlying image.
e. The parties agree to meet and confer regarding file types
that are not amenable to conversion into TIFF images and which may
not be easily produced in native file format. If necessary, any
such relevant and responsive, but non-convertible files, may be
temporarily produced in the form of a placeholder TIFF image.
The parties agreed that for all ESI produced as TIFF images, where
possible, the producing party will provide a searchable,
document-level .TXT file which will be created directly from the
native file. For ESI from which text cannot be extracted, or from
paper documents, the parties agree that they will produce
document-level OCR text for each such document. Each such file
will have a filename matching the Bates number applied to the first
page of the corresponding static image file or placeholder file,
followed by the .TXT extension.
The parties agreed to meet and confer with respect to any documents
or other files containing non-English language text. To the extent
practicable, the parties will consider producing searchable text in
standard encoded 8-bit Unicode Transformation Format (UTF-8).
The parties agreed that the producing party will provide the
following load files for all productions:
a. Metadata Import File: DAT format, in ASCII format, using
Concordance default delimiters to separate the fields and records.
b. Image Cross-Reference File: Standard Opticon delimited file
in .OPT format, containing the corresponding image information and
indicating page breaks. Only one Metadata Import File and (if
appropriate) one Image Cross-Reference File should be included with
each production. The Metadata Import File should contain the
metadata fields detailed and described in Exhibit A and/or Exhibit
B, as appropriate. To the extent possible, the parties agree to
populate the Custodian field for all produced ESI and paper
documents.
When processing ESI, the parties agreed to use GMT-5 as the time
zone.
When processing ESI for production as a static image, the parties
agree that Auto Date be forced off, and hidden columns or rows,
hidden worksheets, speaker notes, track changes, and comments be
forced on.
In the event an ESI file needs to be redacted to remove certain
information, that ESI file may be converted to a static image.
The parties agreed that de-duplication of documents may be
performed globally across the entire ESI collection. A list of all
custodians who were in possession of the document, including those
whose copy of the document was removed during deduplication, should
be placed in the CUSTODIAN_DUPLICATE (or DUPLICATE_CUSTODIAN)
field, with each entry separated by a semi-colon (;) character, as
set forth in Exhibit B. The parties agreed that deduplication may
be performed on a family level.
The parties agreed that removal of wholly included, prior-in time
or lesser-included versions of e-mail threads will reduce each
Parties' costs of document review, production, and litigation
support hosting. For the avoidance of doubt, only email messages
for which the parent document and all attachments are contained in
the more inclusive email message will be considered less inclusive
email messages that need not be produced; if the later message
contains different text (such as where the later message adds
in-line comments to the body of the earlier message), or does not
include an attachment that was part of the earlier message, the
earlier message must be produced. To the extent that an e-mail
thread contains privileged communications, such communications can
be redacted. If an e-mail thread contains responsive,
non-privileged communications, the entire e-mail thread cannot be
withheld as privileged.
A full-text copy of the Court's June 28, 2019 Order is available at
https://is.gd/KIcikK from Leagle.com.
Shelly Robinson, individually and on behalf of all others
similarly
situated, Plaintiff, represented by David W. Reid, Pacific Trial
Attorneys, APC & Scott J. Ferrell --
sferrell@pacifictrialattorneys.com -- Pacific Trial Attorneys.
J.M. Smucker Company, an Ohio corporation, Defendant, represented
by Ronald Y. Rothstein -- dreid@pacifictrialattorneys.com --
Winston and Strawn LLP, pro hac vice, Crista N. Welch --
cwelch@coblentzlaw.com -- Winston and Strawn LLP & Megan Lee Whipp
-- mwhipp@winston.com -- Winston and Strawn LLP.
LA ROSA REALTY: De La Cruz Sues Over Unsolicited Marketing
----------------------------------------------------------
ALEXANDER DE LA CRUZ, individually and on behalf of all others
similarly situated, Plaintiff, v. LA ROSA REALTY, LLC, a Florida
Limited Liability Company, Defendant, Case No. 1:19-cv-23153-XXXX
(S.D. Fla., July 31, 2019) is an action against Defendant, to
secure redress for violations of the Telephone Consumer Protection
Act.
To promote its services, Defendant engages in unsolicited
marketing, harming thousands of consumers in the process. Through
this action, Plaintiff seeks injunctive relief to halt Defendant's
illegal conduct, which has resulted in the invasion of privacy,
harassment, aggravation, and disruption of the daily life of
thousands of individuals. Plaintiff also seeks statutory damages on
behalf of himself and members of the class, and any other available
legal or equitable remedies, says the complaint.
Plaintiff is a natural person who was a resident of Miami-Dade
County, Florida.
Defendant is a real estate brokerage firm.[BN]
The Plaintiff is represented by:
Andrew J. Shamis, Esq.
Garrett O. Berg, Esq.
SHAMIS & GENTILE, P.A.
14 NE 1st Ave., Suite 1205
Miami, FL 33132
Phone (305) 479-2299
Facsimile (786) 623-0915
Email: ashamis@shamisgentile.com
gberg@shamisgentile.com
- and -
Scott Edelsberg, Esq.
Jordan D. Utanski, Esq.
EDELSBERG LAW, PA
19495 Biscayne Blvd. #607
Aventura, FL 33180
Phone: (305) 975-3320
Email: scott@edelsberglaw.com
utanski@edelsberglaw.com
LG ELECTRONICS: Tabora, et al Sue over Fridge Compressor Defect
---------------------------------------------------------------
REX TABORA, BERNIE HMUROVICH, SARAH JOHNSON, LENNY MARTINEZ, AND
EVA PEREZ, individually and on behalf of all others similarly
situated, the Plaintiffs, vs. LG ELECTRONICS U.S.A., INC., the
Defendant, Case No. 2:19-cv-15826 (D.N.J., July 25, 2019), alleges
that LG concealed a known defect from its customers in the United
States who purchased LG Refrigerators with linear compressors on or
after January 30, 2014.
LG expressly warranted that the compressor in the LG Refrigerators
would be covered for ten years from the date of purchase. However,
when customers report to LG that their refrigerators are failing,
they are often told that the manifestations of the Compressor
Defect are minor, are provided with ineffective repairs, and/or
directed to have their compressors replaced with the same defective
parts.
LG knew of this critical defect at the time of sale of the LG
Refrigerators, but sold them anyway, without disclosing the
Compressor Defect to Plaintiffs and Class members. Moreover, LG has
routinely failed to repair the LG Refrigerators without charge when
customers report failures arising from the Compressor Defect.
As a result of these failures by LG, Plaintiffs and Class members
have been damaged, and bring this lawsuit to recover those damages,
the lawsuit says.[BN]
Counsel for the Plaintiffs and the Class are:
Shanon J. Carson., Esq.
Lawrence Deutsch, Esq.
Jacob M. Polakoff, Esq.
Amey J. Park, Esq.
E. Michelle Drake, Esq.
BERGER MONTAGUE PC
1818 Market Street, Suite 3600
Philadelphia, PA 19103
Telephone: (215) 875-3000
Facsimile: (215) 875-4604
E-mail: scarson@bm.net
ldeutsch@bm.net
jpolakoff@bm.net
apark@bm.net
emdrake@bm.net
LIVE NATION: Still Defends Suits Related to Overpriced Tickets
--------------------------------------------------------------
Live Nation Entertainment, Inc. said in its Form 10-Q Report filed
with the Securities and Exchange Commission on July 25, 2019, for
the quarterly period ended June 30, 2019, that the company
continues to defend several class action suits related to the
resale of tickets on secondary ticket exchanges at elevated
prices.
The following putative class action lawsuits were filed against
Live Nation and/or Ticketmaster in the United States and Canada:
Vaccaro v. Ticketmaster LLC (Northern District of Illinois, filed
September 2018);
Ameri v. Ticketmaster LLC (Northern District of California, filed
September 2018);
Lee v. Ticketmaster LLC, et al. (Northern District of California,
filed September 2018);
Thompson-Marcial v. Ticketmaster Canada Holdings ULC (Ontario
Superior Court of Justice, filed September 2018);
McPhee v. Live Nation Entertainment, Inc., et al. (Superior Court
of Quebec, District of Montreal, filed September 2018);
Crystal Watch v. Live Nation Entertainment, Inc., et al. (Court of
Queen's Bench for Saskatchewan, by amendments filed September
2018);
Gaetano v. Live Nation Entertainment, Inc., et al. (Northern
District of New York, filed October 2018);
Dickey v. Ticketmaster LLC, et al. (Central District of California,
filed October 2018);
Gomel v. Live Nation Entertainment, Inc., et al. (Supreme Court of
British Columbia, Vancouver Registry, filed October 2018);
Smith v. Live Nation Entertainment, Inc., et al. (Ontario Superior
Court of Justice, filed October 2018);
Messing v. Ticketmaster LLC, et al. (Central District of
California, filed November 2018); and
Niedbalski v. Ticketmaster LLC, et al. (Central District of
California, filed December 2018).
In March 2019, the court granted the defendants' motion to compel
arbitration of the Dickey lawsuit and stayed the matter.
In April 2019, the court granted the defendants' motion to compel
arbitration of the Lee lawsuit and dismissed the case. Lee
subsequently appealed the District Court's ruling to the Ninth
Circuit.
The Gaetano lawsuit was voluntarily dismissed with prejudice by the
plaintiff in April 2019.
The Ameri lawsuit was dismissed in May 2019 in light of the
parties' agreement to arbitrate the matter and the Vaccaro lawsuit
was settled and dismissed in June 2019.
The Messing and Niedbalski lawsuits are stayed pending the outcome
of the appeal in the Lee matter.
The remaining lawsuits make similar factual allegations that Live
Nation and/or Ticketmaster LLC engage in conduct that is intended
to encourage the resale of tickets on secondary ticket exchanges at
elevated prices.
Based on these allegations, each plaintiff asserts violations of
different state/provincial and federal laws.
Each plaintiff also seeks to represent a class of individuals who
purchased tickets on a secondary ticket exchange, as defined in
each plaintiff's complaint.
The complaints seek a variety of remedies, including unspecified
compensatory damages, punitive damages, restitution, injunctive
relief and attorneys' fees and costs.
Live Nation said, "Based on information presently known to
management, we do not believe that a loss is probable of occurring
at this time, and believe that the potential liability, if any,
will not have a material adverse effect on our financial condition,
cash flows or results of operations. Further, we do not currently
believe that the claims asserted in these lawsuits have merit, and
considerable uncertainty exists regarding any monetary damages that
will be asserted against us. We intend to vigorously defend these
actions."
Live Nation Entertainment, Inc. operates as a live entertainment
company. It operates through Concerts, Sponsorship & Advertising,
and Ticketing segments. The Company was incorporated in 2005 and is
headquartered in Beverly Hills, California.
LOANDEPOT.COM LLC: FAC in Roman Suit Dismissed w/o Prejudice
------------------------------------------------------------
In the case, EVA ROMAN, Plaintiff, v. LOANDEPOT.COM, LLC,
Defendant, Case No. 6:18-cv-1710-Orl-31TBS (M.D. Fla.), Judge
Gregory A. Presnell of the U.S. District Court for the Middle
District of Florida, Orlando Division, granted the Defendant's
Motion to Dismiss the First Amended Complaint.
According to the allegations of the First Amended Complaint in the
putative class action, loanDepot holds the mortgage on Roman's home
in Kissimmee. In September 2017, shortly after Hurricane Irma
struck the area, loanDepot offered Roman, via email, a "forbearance
plan." The email described the "forbearance plan" as a temporary
suspension of her mortgage loan payments intended to allow time and
flexibility for her to manage the challenges affecting her ability
to pay her mortgage due to the natural disaster. According to the
email, much of which was written in a question-and-answer format,
if Roman accepted, her mortgage payments would be suspended for a
minimum of 3 months, negative credit reporting will be suppressed
and "late charges will be waived for the duration of the plan.
Roman accepted the forbearance plan offer on Sept. 20, 2017. On
Sept. 23, 2017, she spoke with a loanDepot representative by
telephone and asked how she would need to pay the suspended
payments. During the conversation, the loanDepot representative
assured the Plaintiff that her suspended payments would be added to
the end of the mortgage.
On Sept. 25, 2017, Roman received a confirmation letter from
loanDepot. It stated that the forbearance plan "will begin on Oct.
1, 2017 through Dec. 1, 2017. During this time, she will not be
required to make payment. The letter also provided that the
forbearance plan will end Jan. 1, 2018 at which time she will be
contacted to reassess her current circumstances as well as be
provided information on alternatives that may be available to her.
Roman did not make the mortgage payments that would otherwise have
been due on Oct. 1, Nov. 1, and Dec. 1 of 2017. On Oct. 17, 2017,
Roman received a loan statement from loanDepot showing that she had
not made her October 1 payment and now owed $3,313.84 -- twice the
amount of her usual payment. On Nov. 10, 2017, she received a
letter from loanDepot stating that she had missed two payments and
was now in default.
Shortly thereafter loanDepot informed Roman that she had to either
pay the Suspended Payments immediately or enter into a loan
modification that would raise her mortgage interest rate from 3.75%
to 4.25%. She refused both options and instead asked loanDepot to
add the extra payments to the end of the loan, as she had been
promised during the September 23 Conversation. loanDepot refused
to do so.
In late December, loanDepot offered to place Roman into a
"foreclosure prevention program," pursuant to which she would need
to make a mortgage payment of $1,573.69 each month for three
consecutive months to avoid foreclosure. Roman accepted and made
the first two payments in January and February of 2018. However,
loanDepot refused to accept the third payment unless she agreed to
a loan modification that included a higher interest rate. Roman
refused to modify the loan.
By letter dated March 9, 2018, loanDepot told Roman she had to pay
$3,149.02 by March 6, 2018 and approximately $2,156 for each of the
following five months thereafter to avoid foreclosure. She
refused. In September 2018, loanDepot initiated foreclosure
proceedings against her.
On Oct. 11, 2018, Roman filed the instant suit. In her Amended
Complaint, she asserts three claims: violation of Florida's
Deceptive and Unfair Trade Practices Act (Count I); breach of
contract (Count II); and promissory estoppel (Count III). By way of
the instant motion, loanDepot seeks dismissal of all three counts.
Judge Presnell finds that so far as Roman's allegations disclose,
the payments were actually suspended during the forbearance period,
even if a few of the documents she received did not reflect this.
But assuming arguendo that those payments were not actually
suspended (and that loanDepot's promise to do was therefore a
deceptive act), Roman has not stated an FDUTPA claim because she
has not shown that she suffered any damage as a result. Count I
will therefore be dismissed.
Next, the Judge finds that the language upon which Roman seeks to
rely does not impose an obligation on loanDepot to offer her any
particular type of repayment plan. And even assuming arguendo that
loanDepot was obligated to offer some option other than immediate
repayment, Roman admits in the Amended Complaint that the company
offered to let her pay the Suspended Payments over time after the
suspension period, rather than immediately thereafter, in exchange
for an increase in her interest rate. While she may not have
approved it, it was nonetheless a repayment plan. Count II will be
dismissed.
Finally, in connection with Count III, Roman again argues that
loanDepot breached its promise to offer her a repayment plan -- an
argument that is foreclosed by, inter alia, her allegations in the
Amended Complaint that she was offered the chance to make payments
over time in exchange for an interest rate increase. As this is
the only promise Roman seeks to have enforced via promissory
estoppel, Count III will be dismissed.
Based on the foergoing, Judge Presnell granted the Defedant's
Motion to Dismiss, and dismissed without prejudice the Amended
Complaint. Should the Plaintiff wish to do so, she may file a
second amended complaint that cures the issues discussed on July
12, 2019.
A full-text copy of the Court's June 28, 2019 Order is available at
https://is.gd/4anO29 from Leagle.com.
Eva Roman, on behalf of herself and all others similarly situated,
Plaintiff, represented by Henry Clay Parker, IV, Parker &
Associates, PA, James P. Booker -- jbooker@pwcklegal.com -- Peiffer
Wolf Carr & Kane, pro hac vice & Lydia M. Floyd --
lfloyd@pwcklegal.com -- Peiffer Wolf Carr & Kane, pro hac vice.
LoanDepot.com, LLC, Defendant, represented by Aaron A. Wagner --
aaron.wagner@lockelord.com -- Locke Lord, LLP, Rebecca Katherine
Marine -- rebecca.marine@lockelord.com -- Locke Lord, LLP & Dale A.
Evans, Jr. -- d ale.evans@lockelord.com --, Locke Lord, LLP.
LOOMIS ARMORED: 2 Classes of Technicians Certified in Myers Suit
----------------------------------------------------------------
The Hon. Frank D. Whitney granted on the terms set forth in the
order the Plaintiff's motion for class and collective action
certification in the lawsuit titled SHAKEERA MYERS, on behalf of
herself and all others similarly situated v. LOOMIS ARMORED US,
LLC, Case No. 3:18-cv-00532-FDW-DSC (W.D.N.C.).
Judge Whitney ruled that the case shall proceed with respect to the
North Carolina Wage and Hour Act claims as a class action under
Rule 23 of the Federal Rules of Civil Procedure and with respect to
the Fair Labor Standards Act claims as a collective action under 29
U.S.C. Section 216(b).
For purposes of Ms. Myers' FLSA claim, the class is defined as:
All current and former armored service technicians,
including armed drivers, armed messengers, and armed guards,
or in similar positions, who worked for Loomis Armored US,
LLC in North Carolina at any time within the three (3) years
prior to the date of commencement of this action through the
present, and who were not compensated at the appropriate one
and one-half (1.5) times their regular hourly rate for all
hours worked in excess of forty (40) per week.
For purposes of Ms. Myers' NCWHA claims, the class is defined as:
All current and former armored service technicians,
including armed drivers, armed messengers, and armed guards,
or in similar positions, who worked for Loomis Armored US,
LLC in North Carolina at any time within the two (2) years
prior to the date of commencement of this action through the
present, and who were not compensated at the approximate one
and one-half (1.5) times their regular hourly rate for all
hours worked in excess of forty (40) per week, and/or from
those wages Defendant deducted amounts for bulletproof vests
or firearms.
The Plaintiff's counsel shall serve as counsel for the class. The
Defendant shall provide Named Plaintiff's counsel the last known
names, mailing addresses, e-mail addresses, and dates of employment
of all putative collective members and Rule 23 class members who
worked for the Defendant at any time from October 1, 2015 to
October 1, 2018 in native format within ten (10) days of the
Order.
The Court denies without prejudice Ms. Myers' motion to authorize
class notices. The Court directs the parties to confer and agree
upon the content, form, and distribution of the notice (including
appropriate forms), and jointly submit, within seven (7) days of
this Order, proposed notice and forms for this Court's approval.
In the event the parties are unable to agree, parties are directed
to brief the outstanding issues to be submitted within ten (10)
days from this Order. Supplemental briefings should be no longer
than 1,500 words in length.[CC]
LOUISIANA: Can Partly Compel Replies to Tellis Discovery Requests
-----------------------------------------------------------------
In the case, ANTHONY TELLIS, ET AL., v. JAMES M. LeBLANC, ET AL
(Civil Action No. 18-cv-0541) (W.D. La.), Judge Mark L. Hornsby of
the U.S. District Court for the Western District of Louisiana,
Shreveport Division, granted in part and denied in part the
Defendants' motion to compel the Plaintiffs to produce outstanding
responses to their discovery requests.
The Advocacy Center, on behalf of inmates at the David Wade
Correctional Center ("DWCC"), filed the putative class action to
seek injunctive relief with respect to the mental health care
afforded inmates who are held in extended lockdown on the south
compound in buildings N-1 through N-4.
Before the Court is the Defendants' Motion to Compel, which seeks
an order from the Court to compel Plaintiffs to produce outstanding
responses to their discovery requests.
The Plaintiffs argue that the Defendants failed to meet and confer
in good faith prior to filing the motion. They claim that they
received a request to supplement their responses on Sept. 18, 2018.
They claim that a telephone call that same month was the only time
that the parties conferred regarding the adequacy of the
supplemental responses. The Plaintiffs assert that the Defendants
did not inform the Plaintiffs that the supplemental responses were
unsatisfactory.
The Defendants respond that they sent a letter to the Plaintiffs
highlighting the deficiencies in the supplemental responses and
conferred on the matter via telephone on Sept. 19, 2018. During
that conference, the Plaintiffs agreed to provide a
supplementation. The Defendants contend that the parties discussed
the issues for over an hour, and the Plaintiffs have still not
provided supplemental responses consistent with their agreement at
the conference. The Defendants argue that they were not under any
obligation to meet and confer on the issues again, and the matter
is ripe for decision. Judge Hornsby agrees.
The Defendants have propounded many interrogatories to the
Plaintiffs seeking specific instances of denial of mental health
care, the factual bases for the claims in the Plaintiffs'
complaint, all documents and evidence the Plaintiffs intend to use
at trial, and the like. The Plaintiffs objected to many of these
interrogatories, claiming that they are overbroad and burdensome
"blockbuster" interrogatories.
For the following reasons, Judge Hornsby is granted in part and
denied in part the Defendants' motion as follows:
a. Interrogatory No. 3: The Defendants asked the Plaintiffs to
identify all witnesses regarding the facts and circumstances
surrounding the incidents referred to in the complaint. The Judge
granted. The Plaintiffs will provide a good faith list of their
(currently) expected trial witnesses. The Plaintiffs' final
witness list will be filed in connection with preparation of the
pretrial order.
b. Interrogatory No. 4: The Defendants asked Plaintiffs to
identify every person with whom the named Plaintiffs or their
attorney has met or from whom the Plaintiffs have taken a
statement. The Judge denied. The Plaintiffs' response is
sufficient.
c. Interrogatory No. 5: The Defendants asked Plaintiffs to list
each document, exhibit, or piece of evidence they may use at trial
and to identify the custodian of those items. The Judge granted.
The Plaintiffs will provide a good faith list of the exhibits they
currently plan to use at trial. Their final exhibit list will be
filed in connection with preparation of the pretrial order.
d. Interrogatory No. 7: The Defendants asked Plaintiffs to
identify all factual bases for their allegations in paragraphs
51-106 of their complaint and to identify any evidence they contend
supports these allegations. The Judge denied this holding that the
request is overly broad and unduly burdensome.
e. Interrogatory No. 11: The Defendants ask the Plaintiffs to
identify every instance in which they contend that the Defendants
ignored complaints concerning mental health needs. This is
granted. The question is broad, but so are the allegations
asserted by the Plaintiffs regarding the denial of mental health
treatment. To the extent the Plaintiffs know of specific instances
of the Defendants ignoring requests made by inmates on extended
lockdown for mental health treatment, they are directed to provide
that information.
f. Interrogatory No. 12: The Defendants asked the Plaintiffs to
identify all bases for their allegation that mental illness goes
untreated at DWCC. It is granted for the same reasons in
Interrogatory No. 11. To the extent the Plaintiffs know of
specific instances of mental illness of inmates on extended
lockdown going untreated at DWCC, they are directed to provide that
information.
g. Interrogatory No. 13: The Defendants asked the Plaintiffs to
identify each and every instance in which they contend the
Defendants took any actions that the Plaintiffs believe demonstrate
a disregard for serious medical needs. The Defendants claim that
the Plaintiffs' answer consisted of broad claims rather than
identifying specific instances. The Judge granted for the same
reasons in Interrogatories 11 and 12. To the extent the Plaintiffs
know of specific instances of actions by the Defendants that the
Plaintiffs believe demonstrate a disregard for serious mental
health needs of inmates on extended lockdown at DWCC, they are
directed to provide that information.
h. Interrogatory No. 14: The Defendants asked Plaintiffs that,
if they contend that the Defendants have ever delayed providing
mental health care to the named Plaintiffs, they identify each and
every instance in which that has occurred and how they were
substantially harmed. The Judge granted in part. To the extent
the Plaintiffs know of specific instances of the Defendants
delaying mental health care to inmates on extended lockdown at
DWCC, they are directed to provide that information.
i. Interrogatory No. 16: The Defendants asked the the
Plaintiffs to provide all factual bases for the allegations that
Defendants respond "brutally" to symptoms of mental illness,
requests for mental health treatment, and attempts to redress
grievances and identify all documents and evidence that the
Plaintiffs contend support those allegations. The Defendants also
asked them to identify which defendants were responsible for the
identified bases. The Defendants claim that the Plaintiffs
provided very general narratives but only provided one specific
instance. The Judge granted in part. To the extent the Plaintiffs
know of specific instances of the Defendants responding brutally to
requests for mental health treatment by inmates on extended
lockdown at DWCC, they are directed to provide that information.
j. Interrogatory No. 18: The Defendants asked the Plaintiffs to
identify all factual bases for allegations that the Defendants
discriminate as to mental health treatment on the basis of
disability and to identify all documents and evidence they contend
support those allegations. The request is granted in part. To the
extent the Plaintiffs know of specific instances of the Defendants
discriminating on the basis of disability in providing mental
health treatment to inmates on extended lockdown, they are directed
to provide that information.
k. Interrogatory No. 19: The Defendants asked the Plaintiffs to
identify all offenders at DWCC they claim have a current
attorney-client relationship with the Plaintiffs' counsel. The
Judge denied. The Plaintiffs' response is sufficient.
l. Interrogatory No. 20: The Defendants asked the Plaintiffs to
identify every instance they contend that the Defendants violated
the First Amendment, the person responsible for the violation, and
the documents or evidence supporting the contention. The request
is granted in part. To the extent the Plaintiffs know of specific
instances of Defendants violating the First Amendment of inmates on
extended lockdown, they are directed to provide that information.
m. Interrogatory No. 21: The Defendants asked the Plaintiffs to
identify all bases on which they contend the Defendants violated
the Eighth Amendment and identify all documents and evidence they
contend support those allegations. It is granted in part. To the
extent the Plaintiffs know of specific instances of Defendants
violating the Eighth Amendment of inmates on extended lockdown,
they are directed to provide that information. If the answer is
redundant of the other responses ordered, the Plaintiffs may simply
incorporate those answers by reference.
n. Request for Production 14: The Defendants seek all documents
or evidence showing which DWCC inmates have an attorney-client
relationship with the Advocacy Center. The Judge denied it. The
Defendants have not satisfied the court that this information is
relevant to a claim or defense. Furthermore, the request for "all
documents" regarding an attorney-client relationship is over broad
and would include privileged information.
o. Request for Production No. 15: The Defendants seek all
documents related to billing by the Advocacy Center in the matter.
The Judge denied it. It is the Court's long-standing practice to
defer requests for attorneys' fees to post-trial motion practice.
This discovery is premature. The Plaintiffs responded that the
requested documents are not relevant.
p. Request for Production 16: The Defendants seek all documents
and evidence related to the allegations in Paragraph 12 of the
complaint, which deals with the transferring of offenders. The
Judge denied. The request for "all documents" regarding the
transfers is over broad. He believes that the Defendants likely
are the best source for that information.
A full-text copy of the Court's June 26, 2019 Memorandum Order is
available at https://is.gd/VSDkGb from Leagle.com.
Bruce Charles, on behalf of themselves and all other smimilarly
situated prisoners at David Wade Correctional Center, Plaintiff,
represented by Jonathan Cameron Trunnell --
advocacycenter@advocacyla.org -- Advocacy Center, Bruce W.
Hamilton, American Civil Liberties Union Foundation of LA,
Katharine Murphy Schwartzmann, American Civil Liberties Union
Foundation of LA, Melanie Ann Bray -- mbray@advocacyla.org --
Advocacy Center of LA, Ronald Kenneth Lospennato, Advocacy Center
&
Sarah H. Voigt, Advocacy Center.
Advocacy Center of Louisiana, Plaintiff, represented by Jonathan
Cameron Trunnell, Advocacy Center, Katharine Murphy Schwartzmann,
American Civil Liberties Union Foundation of LA, Melanie Ann Bray,
Advocacy Center of LA, Ronald Kenneth Lospennato, Advocacy Center
&
Sarah H. Voigt, Advocacy Center.
James M LeBlanc, Secretary of the Louisiana Department of Public
Safety and Corrections, Jerry Goodwin, Warden of David Wade
Correctional Center, Lonnie Nail, Col, Deborah Dauzat, Assistant
Warden & Johnie Adkins, Defendants, represented by Margaret
Annette
C. Collier, LA Dept of Justice, Connell L. Archey --
connell@kswb.com -- Kantrow Spaht et al, George Prentiss Holmes --
george@kswb.com -- Kantrow Spaht et al, Keith Joseph Fernandez --
keith@kswb.com -- Kantrow Spaht et al & Randal J. Robert, Kantrow
Spaht et al.
Gregory Seal, Dr & Aerial Robinson, Defendants, represented by
Margaret Annette C. Collier, LA Dept of Justice, Connell L.
Archey,
Kantrow Spaht et al, George Prentiss Holmes, Kantrow Spaht et al &
Randal J. Robert, Kantrow Spaht et al.
Steve Hayden, Defendant, represented by George Prentiss Holmes,
Kantrow Spaht et al & Randal J. Robert, Kantrow Spaht et al.
LA Dept of Public Safety & Corrections, Defendant, represented by
Margaret Annette C. Collier, LA Dept of Justice, Connell L.
Archey,
Kantrow Spaht et al, George Prentiss Holmes, Kantrow Spaht et al,
Jonathan Ray Vining, LA Dept of Public Safety & Corrections, Keith
Joseph Fernandez, Kantrow Spaht et al & Randal J. Robert, Kantrow
Spaht et al.
MDL 2179: Donovan v Herman Suit Goes to Eastern Dist. of Louisiana
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In the case, IN RE: OIL SPILL BY THE OIL RIG "DEEPWATER HORIZON" IN
THE GULF OF MEXICO, ON APRIL 20, 2010, MDL No. 2179, Judge Sarah S.
Vance of the U.S. Judicial Panel on Multidistrict Litigation has
entered an order transferring the action styled DONOVAN v. HERMAN,
C.A. No. 8:19-00623 from the Middle District of Florida to the
Eastern District of Louisiana, and, with the consent of that court,
assigned it to the Honorable Carl J. Barbier for inclusion in the
coordinated or consolidated pretrial proceedings.
Plaintiff in the Middle District of Florida action (Donovan) moves
under Panel Rule 7.1 to vacate the Panel's order conditionally
transferring the action to the Eastern District of Louisiana for
inclusion in MDL No. 2179. Defendant Stephen J. Herman, who is
co-liaison counsel in the MDL and a member of the Plaintiffs
Steering Committee, opposes the motion.
In support of his motion to vacate, the Donovan plaintiff argues
that his action focuses on specific alleged misconduct on the part
of defendant Herman, which falls outside the MDL's ambit. After
reviewing plaintiff's 130-page complaint, the Panel is not
convinced by this argument. Plaintiff's wide-ranging allegations
concerning defendant's wrongdoing go to the core of the MDL itself,
including the prosecution and settlement of tens of thousands of
claims in the litigation. As the Panel previously has noted, a
transferee judge has an undeniable interest in policing the conduct
of attorneys involved in an MDL. Here, in addition to allegations
concerning defendant's role as one of the principal attorneys in
the MDL, plaintiff asserts multiple challenges to the conduct of
the litigation generally.
After considering the argument of counsel, Judge Vance finds that
the Donovan action involves common questions of fact with actions
transferred to MDL No. 2179, and that transfer will serve the
convenience of the parties and witnesses and promote the just and
efficient conduct of the litigation. The actions in the MDL share
factual questions arising from the explosion and fire that
destroyed the Deepwater Horizon offshore drilling rig, and the
resulting oil spill. A review of the Donovan complaint leaves no
doubt that the action implicates those same questions.
A full-text copy of the Court's July 31, 2019 Transfer Order is
available at https://is.gd/XlXR32
MDL 2243: Hodge's Products Liability Litigation Goes to New Jersey
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In the case, IN RE: FOSAMAX (ALENDRONATE SODIUM) PRODUCTS LIABILITY
LITIGATION (NO. II), MDL No. 2243, Judge Sarah S. Vance of the U.S.
Judicial Panel on Multidistrict Litigation has entered an order
transferring the action styled HODGE v. MERCK SHARP & DOHME CORP.,
C.A. No. 2:19-02185 from the Western District of Tennessee to the
District of New Jersey, and, with the consent of that court,
assigned it to the Honorable Freda L. Wolfson for inclusion in the
coordinated or consolidated pretrial proceedings.
Plaintiff in the Western District of Tennessee action (Hodge) moves
under Panel Rule 7.1 to vacate the Panel's order conditionally
transferring the action to the District of New Jersey for inclusion
in MDL No.2243.Defendant Merck Sharp & Dohme Corp. opposes the
motion.
In support of her motion to vacate, the Hodge plaintiff, who is
proceeding pro se, argues that she would be inconvenienced by
transfer. But, in deciding issues of transfer under Section 1407,
the Panel looks to the overall convenience of the parties and
witnesses, not just those of a single plaintiff for defendant in
isolation. Here, overall convenience will be served by transfer of
Hodge, given the factual issues the case shares with other MDL
cases. Moreover, the Panel notes that "since Section 1407 transfer
is for pretrial proceedings only, there is usually no need for the
parties and witnesses to travel to the transferee district for
depositions or otherwise."
After considering the parties' arguments, Judge Vance finds that
the Hodge action involves common questions of fact with actions
transferred to MDL No. 2243, and that transfer will serve the
convenience of the parties and witnesses and promote the just and
efficient conduct of the litigation. The actions in the MDL "share
questions of fact arising from similar allegations that use of
Fosamax or its generic equivalent caused femur fractures or similar
bone injuries." The Hodge plaintiff does not dispute that her
action implicates those same questions.
A full-text copy of the Court's July 31, 2019 Transfer Order is
available at https://is.gd/g60qOb
MDL 2244: Court Denies Bid to Remand Mugnolo Suit to N.D. Calif.
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In the case, IN RE: DEPUY ORTHOPAEDICS, INC., PINNACLE HIP IMPLANT
PRODUCTS LIABILITY LITIGATION, MDL No. 2244, Judge Sarah S. Vance
of the U.S. Judicial Panel on Multidistrict Litigation has denied
the Plaintiff's motion for Section 1407 remand of the action styled
MUGNOLO v. DEPUY ORTHOPAEDICS, INC., ET AL., C.A. No. 3:15-3347
(N.D. Calif., C.A. No. 4:15-2314) in the Northern District of Texas
to the Northern District of California.
Plaintiff in the Mugnolo action moves under Panel Rule 10.3 for
Section 1407 remand of the action to the Northern District of
California. Responding defendant DePuy Orthopaedics, Inc., opposes
the motion.
After considering the argument of counsel, Judge Vance denies the
motion to remand. The Panel ordered centralization in this docket
in May 2011. The MDL actions are largely personal injury actions
sharing factual questions concerning alleged injuries from DePuy's
Pinnacle Acetabular Cup System hip implants. In seeking remand,
plaintiff mostly rehashes the arguments he made in his motion to
vacate the Panel's order conditionally transferring his action to
the MDL, which the Panel denied over plaintiff's objections in
October 2015. In his motion to vacate, plaintiff argued that the
MDL did not involve non-metal-on-metal devices and that the manner
of his injury (hip dislocation due to locking ring failure) was
unique. In transferring Mugnolo, the Panel noted that, as stated
in the initial transfer order, the MDL was not limited to
metal-on-metal configurations of Pinnacle hip implants and that
"[e]ven if the mechanism of failure of plaintiff's Pinnacle hip
implant is somewhat different, transfer is appropriate to prevent
any overlap in discovery in the MDL. . . ."
In addition to the arguments made in his motion to vacate,
plaintiff asserts that personal circumstances regarding his
finances and health require quick resolution of his claims, yet his
case has not significantly progressed since transfer. But,
plaintiff filed this Section 1407 motion without first seeking a
suggestion of remand from the transferee judge. Panel Rule 10.3(a)
counsels that the Panel is "reluctant to order a remand absent the
suggestion of the transferee judge." Indeed, a party moving for
Section 1407 remand without such a suggestion "bears a strong
burden of persuasion." Plaintiff has not met that burden here.
Judge Kinkeade, in his capacity as transferee judge, has become
familiar with the issues in this litigation by presiding over
extensive pretrial proceedings. He is in the best position to
determine the future course of actions in the MDL. Remand of this
or any other MDL cases without the transferee judge's suggestion
would be premature.
A full-text copy of the Court's July 31, 2019 Order is available at
https://is.gd/urwdUP
MDL 2545: Court Denies Bid to Transfer Ungleich v. Abbvie
---------------------------------------------------------
In the case, IN RE: TESTOSTERONE REPLACEMENT THERAPY PRODUCTS
LIABILITY LITIGATION, MDL No. 2545, Judge Sarah S. Vance of the
U.S. Judicial Panel on Multidistrict Litigation denied the
Defendant's motion to transfer the action styled UNGLEICH v. ABBVIE
INC., C.A. No. 0:19-61144 from the Southern District of Florida to
the Northern District of Illinois for inclusion in MDL No. 2545.
Defendant Abbvie, Inc., in the Southern District of Florida
Ungleich action moves under Section 1407(c) to transfer the action
to the Northern District of Illinois for inclusion in MDL No. 2545.
Pro se plaintiff Thomas R. Ungleich opposes the motion.
After considering the parties' arguments, Judge Vance finds that
transfer of this action is not appropriate. In the Panel's order
centralizing this litigation, the Judge held that the Northern
District of Illinois was an appropriate Section 1407 forum for
actions sharing factual questions arising from allegations that the
use of one or more testosterone replacement therapies caused
plaintiffs or their decedents to suffer injuries such as heart
attack, stroke, deep vein thrombosis, or pulmonary embolism. In
opposing transfer, the Ungleich plaintiff argues that he alleges
that his use of AndroGel caused him to develop prostate cancer, and
that no MDL cases involve similar injuries. Abbvie itself points
to no such cases. The MDL has advanced to a mature stage, and the
Judge does not think it appropriate to expand its scope at this
juncture.
The parties can employ alternatives to transfer to minimize
whatever, if any, possibilities may arise of duplicative discovery
and/or inconsistent pretrial rulings.
A full-text copy of the Court's July 31, 2019 Order is available at
https://is.gd/xz9vnF
MDL 2626: Alcon Vision v. Allied Vision Goes to M.D. Florida
------------------------------------------------------------
In the case, IN RE: DISPOSABLE CONTACT LENS ANTITRUST LITIGATION,
MDL No. 2626, Judge Sarah S. Vance of the U.S. Judicial Panel on
Multidistrict Litigation has entered an order transferring the
action styled ALCON VISION, LLC. v. ALLIED VISION GROUP, INC., ET
AL., C.A. No. 1:18-2486 from the Eastern District of New York to
the Middle District of Florida and, with the consent of that court,
assigned it to the Honorable Harvey E. Schlesinger for inclusion in
the coordinated or consolidated pretrial proceedings.
Judge Vance further ordered that all claims and counterclaims
except for three counterclaims (Counts I, II and III) relating to
Alcon's institution of universal pricing policies are separated and
simultaneously remanded, under 28 U.S.C. Section 1407(a), to the
Eastern District of York.
Plaintiff in the Eastern District of New York action (Alcon) and
plaintiffs in MDL No. 2626 separately move under Panel Rule 7.1 to
vacate the Panel's order conditionally transferring the action to
MDL No. 2626. Defendants and counterclaimants Allied Vision Group,
Inc., and National Lens, LLC, oppose the motions to vacate.
The actions in MDL No. 2626 share factual questions concerning
defendants' alleged anticompetitive conduct aimed at fixing,
raising, maintaining and/or stabilizing the prices at which
disposable contact lenses are sold in the United States. At issue
in all initially centralized actions were defendants' pricing
policies that allegedly prevented resale of the subject contact
lenses below a minimum price. The Alcon action is a trademark
infringement action against discount retailers Allied Vision and
National Lens, "gray market" purchasers that allegedly bought
certain Alcon products overseas and sold them in the United States.
In Alcon, defendants have asserted several counterclaims that
generally (1) refute Alcon's accusation of trademark infringement
and suggest instead that changes Alcon made to products exclusively
sold in the U.S. were pretextual and aimed at eliminating gray
market competitors, (2) challenge Alcon's proposed
exclusive-dealing arrangements and (3) connect Alcon's filing of
this trademark action to its alleged prior efforts to prevent
resellers from distributing Alcon products to the detriment of eye
care professionals. Three of these counterclaims relate to
universal pricing policies (UPPs) at issue in the MDL. The factual
overlap between the counterclaims and the claims in the MDL is
exemplified, in particular, by the transferee judge's December2018
decision certifying various classes of retail purchasers of contact
lenses subject to UPPs.
Alcon and the MDL plaintiffs oppose transfer on the grounds that
the MDL is too advanced and involves consumers, as opposed to gray
market resellers like defendants. The Panel agrees the MDL is at a
somewhat advanced stage, and that, until recently, the litigation
principally consisted of actions brought by consumers. But, in
June 2019, the Panel transferred antitrust counterclaims relating
to Alcon's UPPs asserted in a similar trademark infringement action
(Lens.com) brought by Alcon against another gray market seller. As
with Lens.com, the Panel is concerned that transferring the entire
Alcon action would add significant additional antitrust and
trademark-related allegations that could slow the MDL's
considerable progress. A more tailored solution -- transfer of
only defendants' three UPP-related counterclaims -- is consistent
with the Panel's previous order, and prevents the risk of
inconsistent rulings concerning Alcon's UPPs, while not expanding
the MDL's scope. In these circumstances, the Panel views this as
the best solution.
A full-text copy of the Court's July 31, 2019 Transfer Order with
Simultaneous Separation and Remand of Certain Claims is available
at https://is.gd/MyuGGQ
MDL 2666: Kolb and Tye Product Liability Suits Moved to Minnesota
-----------------------------------------------------------------
In the case, IN RE: BAIR HUGGER FORCED AIR WARMING DEVICES PRODUCTS
LIABILITY LITIGATION, MDL No. 2666, Judge Sarah S. Vance of the
U.S. Judicial Panel on Multidistrict Litigation has entered an
order transferring two actions, KOLB, ET AL. v. MCCLARY, ET AL.,
C.A. No. 4:19-00889 (Eastern District of Missouri) and TYE, ET AL.
v. ST. LUKE'S EAST ANESTHESIA SERVICES, PC, ET AL.,C.A. No.
4:19-00294 (Western District of Missouri), to the District of
Minnesota, and, with the consent of that court, assigned them to
the Honorable Joan N. Ericksen for inclusion in the coordinated or
consolidated pretrial proceedings.
Plaintiffs in the Eastern District of Missouri Kolb and Western
District of Missouri Tye actions separately move under Panel Rule
7.1 to vacate the Panel's orders conditionally transferring the
actions to the District of Minnesota for inclusion in MDL No. 2666.
Defendants 3M Company and Arizant Healthcare Inc. oppose the
motions.
In support of their motions to vacate, the Kolb and Tye plaintiffs
argue that their actions were improperly removed and their motions
for remand to state court are pending. The Panel often has held
that jurisdictional issues do not present an impediment to
transfer, as plaintiffs can present their arguments regarding those
issues to the transferee judge.
After considering the argument of counsel, Judge Vance finds that
the Kolb and Tye actions involve common questions of fact with
actions transferred to MDL No. 2666, and that transfer will serve
the convenience of the parties and witnesses and promote the just
and efficient conduct of the litigation. The actions in the MDL
share factual questions arising from allegations that post-surgery
use of a Bair Hugger forced air warming system causes serious
infections due to the introduction of contaminants into open
wounds. The Kolb and Tye plaintiffs do not dispute that their
actions implicate those same questions.
A full-text copy of the Court's July 31, 2019 Transfer Order is
available at https://is.gd/Hi1wzt
MDL 2738: 7 Suits v. Johnson & Johnson Moved to New Jersey
----------------------------------------------------------
In the case, IN RE: JOHNSON & JOHNSON TALCUM POWDER PRODUCTS
MARKETING, SALES PRACTICES AND PRODUCTS LIABILITY LITIGATION, MDL
No. 2738, Judge Sarah S. Vance of the U.S. Judicial Panel on
Multidistrict Litigation has entered an order transferring seven
actions against Johnson & Johnson, et al., to the District of New
Jersey and, with the consent of that court, assigned them to the
Honorable Freda L. Wolfson for coordinated or consolidated pretrial
proceedings.
Plaintiffs in the seven actions listed on Schedule A move under
Panel Rule 7.1 to vacate the Panel's orders that conditionally
transferred these actions to the District of New Jersey for
inclusion in MDL No. 2738. Defendants Johnson & Johnson and
Johnson & Johnson Consumer, Inc., oppose all of the motions.
Defendants Cyprus Amax Mineral Company and Cyprus Mines Corporation
oppose the motion to vacate the conditional transfer order in the
Eastern District of Missouri Bathon action.
In support of their motions to vacate, plaintiffs in all seven
actions argue that federal subject matter jurisdiction over their
respective actions is lacking, and that plaintiffs' motions for
remand to state court should be decided before transfer. The Panel
has held that such jurisdictional issues generally do not present
an impediment to transfer. Plaintiffs also argue that transfer
will cause them inconvenience and delay the resolution of their
remand motions. But transfer of an action is appropriate if it
furthers the expeditious resolution of the litigation taken as a
whole, even if some parties to the action might experience
inconvenience or delay. Plaintiffs can present their remand
arguments to the transferee judge.
In addition, plaintiffs argue that transfer of these actions is not
appropriate because plaintiffs assert claims against unique
defendants -- namely, K&B Louisiana Corporation, d/b/a Rite Aid
Corporation (the Louisiana actions), Schnuck Markets, Inc.
(Bathon), and Walgreen Company (Fox). Plaintiffs' arguments are
not persuasive. Transfer under Section 1407 does not require a
complete identity of factual issues or parties when the actions
arise from a common factual core. Plaintiffs' claims, like those
of plaintiffs in the MDL, arise from a common factual core—that
plaintiffs allegedly developed ovarian cancer following perineal
application of Johnson & Johnson's talcum powder products. That
plaintiffs assert additional claims against other defendants does
not weigh against transfer. Moreover, the Panel has transferred
numerous actions involving claims against retailers and other
defendants to the MDL, including several actions involving claims
against the K&B Louisiana Corporation, Schnuck Markets, Inc., and
Walgreen Company.
Therefore, after considering the argument of counsel, Judge Vance
finds that the actions listed on Schedule A involve common
questions of fact with the actions transferred to MDL No. 2738, and
that transfer under 28 U.S.C. Section 1407 will serve the
convenience of the parties and witnesses and promote the just and
efficient conduct of the litigation. In the Panel's order
centralizing this litigation, the Judge held that the District of
New Jersey was an appropriate Section 1407 forum for actions
sharing factual questions arising from allegations that plaintiffs
or their decedents developed ovarian cancer following perineal
application of Johnson & Johnson's talcum powder products (namely,
Johnson's Baby Powder and Shower to Shower body powder).
Plaintiffs' actions here share multiple questions of fact with the
actions already in the MDL.
A full-text copy of the Court's July 31, 2019 Transfer Order is
available at https://is.gd/kzl0uO
MDL 2738: Court Vacates Conditional Transfer Order for Cortez Suit
------------------------------------------------------------------
In the case, IN RE: JOHNSON & JOHNSON TALCUM POWDER PRODUCTS
MARKETING, SALES PRACTICES AND PRODUCTS LIABILITY LITIGATION, MDL
No. 2738, the U.S. Judicial Panel on Multidistrict Litigation has
entered an order vacating its conditional transfer designated as
"CTO-140" filed on April 25, 2019, as it relates to the action
styled Cortez v. Johnson & Johnson, et al., (M.D. La., C.A. No.
3:19-00232).
The Panel also ordered that the Hearing Session Order and the
attached Schedule filed on June 18, 2019, are VACATED insofar as
they relate to this action.
A conditional transfer order was filed in this action (Cortez) on
April 25, 2019. Prior to expiration of that order's 7-day stay of
transmittal, plaintiff in Cortez filed a notice of opposition to
the proposed transfer. Plaintiff later filed a motion and brief to
vacate the conditional transfer order. The Panel has now been
advised that Cortez was remanded to the 19th Judicial District
Court for the Parish of East Baton Rouge, Louisiana, by the
Honorable Brian A. Jackson in an order filed on June 21, 2019.
A full-text copy of the Court's June 24, 2019 Order is available at
https://is.gd/TyMYtt
MDL 2738: Court Vacates Conditional Transfer Order for Jackson Suit
-------------------------------------------------------------------
In the case, IN RE: JOHNSON & JOHNSON TALCUM POWDER PRODUCTS
MARKETING, SALES PRACTICES AND PRODUCTS LIABILITY LITIGATION, MDL
No. 2738, the U.S. Judicial Panel on Multidistrict Litigation has
entered an order vacating its conditional transfer designated as
"CTO-143" filed on May 8, 2019, as it relates to the action styled
Jackson v. Johnson & Johnson, et al., (E.D. La., C.A. No.
2:19-09983).
The Panel also ordered that the Hearing Session Order and the
attached Schedule filed on June 18, 2019, are VACATED insofar as
they relate to this action.
A conditional transfer order was filed in this action (Jackson) on
May 8, 2019. Prior to expiration of that order's 7-day stay of
transmittal, plaintiff in Jackson filed a notice of opposition to
the proposed transfer. Plaintiff later filed a motion and brief to
vacate the conditional transfer order. The Panel has now been
advised that Jackson was remanded to the Civil District Court for
the Parish of Orleans, Louisiana, by the Honorable Martin L. C.
Feldman in an order filed on June 20, 2019.
A full-text copy of the Court's June 21, 2019 Order is available at
https://is.gd/MUb2PU
MDL 2738: Court Vacates CTO-140 and 141 for 6 Suits in Louisiana
----------------------------------------------------------------
In the case, IN RE: JOHNSON & JOHNSON TALCUM POWDER PRODUCTS
MARKETING, SALES PRACTICES AND PRODUCTS LIABILITY LITIGATION, MDL
No. 2738, the U.S. Judicial Panel on Multidistrict Litigation has
entered an order vacating its conditional transfer designated as
"CTO-140, and 141" filed on April 25, 2019, and April 30, 2019,
respectively, as they relate to six actions in the Middle District
of Louisiana, namely:
DIST DIV. C.A. NO. CASE CAPTION
---- ---- -------- ------------
LAM 3 19-00230 Vitter v. Johnson & Johnson et al
LAM 3 19-00233 Huffman v. Johnson & Johnson et al
LAM 3 19-00234 Autin v. Johnson & Johnson et al
LAM 3 19-00240 Broussard v. Johnson & Johnson
et al
LAM 3 19-00242 Falgout et al v. Johnson & Johnson
et al
LAM 3 19-00255 Jones v. Johnson & Johnson et al
The Panel further ordered that the Hearing Session Order and the
attached Schedule filed on June 18, 2019, are VACATED insofar as
they relate to these actions.
Conditional transfer orders were filed in the six actions on April
25,2019, and April 30, 2019, respectively. Prior to expiration of
that order's 7-day stay of transmittal, plaintiffs filed notices of
opposition to the proposed transfer. Plaintiffs later filed motions
and briefs to vacate the conditional transfer orders. The Panel
has now been advised that these actions have been remanded to their
respective state courts.
A full-text copy of the Court's July 9, 2019 Order is available at
https://is.gd/WagjP1
MDL 2741: Cichy v. Bayer Suit Moved to Northern Dist. of California
-------------------------------------------------------------------
In the case, IN RE: ROUNDUP PRODUCTS LIABILITY LITIGATION, MDL No.
2741, Judge Sarah S. Vance of the U.S. Judicial Panel on
Multidistrict Litigation has entered an order transferring the
action styled CICHY v. BAYER CORPORATION, ET AL., C.A. No.
1:19-02548 from the Northern District of Illinois to the Northern
District of California and, with the consent of that court,
assigned it to the Honorable Vince Chhabria for coordinated or
consolidated pretrial proceedings.
Plaintiff in the Cichy action moves under Panel Rule 7.1 to vacate
the Panel's order that conditionally transferred Cichy to the
Northern District of California for inclusion in MDL No. 2741.
Defendant Monsanto Company opposes the motion.
In support of his motion, plaintiff argues that federal subject
matter jurisdiction over Cichy is lacking, and that his motion for
remand to state court should be decided prior to transfer. The
Panel has held that such jurisdictional issues generally do not
present an impediment to transfer. Plaintiff also argues that
transfer will cause him inconvenience and delay the resolution of
his remand motion. But transfer of an action is appropriate if it
furthers the expeditious resolution of the litigation taken as a
whole, even if some parties to the action might experience
inconvenience or delay. Plaintiff can present his remand arguments
to the transferee judge.
In addition, plaintiff argues that transfer of Cichy is not
appropriate because he asserts medical malpractice claims relating
to the prescription of an anti-fungal medication against various
medical providers. This argument is not persuasive. Transfer
under Section 1407 does not require a complete identity of factual
issues or parties when the actions arise from a common factual
core. Plaintiff's claims, like those of plaintiffs in the MDL,
arise from a common factual core—that plaintiff allegedly
developed non-Hodgkin's lymphoma or an hematopoietic cancer similar
to those previously transferred to the MDL (in plaintiff's case,
acute myeloidleukemia) following exposure to Monsanto's Roundup
herbicide. That plaintiff asserts additional claims against
additional defendants do not weigh against transfer.
Therefore, after considering the parties' arguments, Judge Vance
finds that the Cichy action involves common questions of fact with
the actions transferred to MDL No. 2741, and that transfer under 28
U.S.C. Section 1407 will serve the convenience of the parties and
witnesses and promote the just and efficient conduct of the
litigation. In the Panel's order centralizing this litigation, the
Judge held that the Northern District of California was an
appropriate Section 1407 forum for actions sharing factual
questions arising out of allegations that Monsanto's Roundup
herbicide, particularly its active ingredient, glyphosate, causes
non-Hodgkin's lymphoma. Cichy shares multiple factual issues with
the cases already in the MDL.
A full-text copy of the Court's July 31, 2019 Transfer Order is
available at https://is.gd/YfEhkT
MDL 2741: Court Vacates Conditional Transfer Order for Knox Lawsuit
-------------------------------------------------------------------
In the case, IN RE: ROUNDUP PRODUCTS LIABILITY LITIGATION, MDL No.
2741, the U.S. Judicial Panel on Multidistrict Litigation has
entered an order vacating its conditional transfer order designated
as "CTO-133" filed on May 15, 2019, as it relates to the action
styled Knox, et al. v. Monsanto Company, et al. (D. Mont., C.A. No.
4:19-00036).
The Panel further ordered that the Hearing Session Order and the
attached Schedule filed on June 18, 2019, are VACATED insofar as
they relate to this action.
A conditional transfer order was filed in this action (Knox) on May
15, 2019. Prior to expiration of that order's 7-daystay of
transmittal, plaintiffs in Knox filed a notice of opposition to the
proposed transfer. Plaintiffs later filed a motion and brief to
vacate the conditional transfer order. The Panel has now been
advised that Knox was remanded to the Eighth Judicial District
Court, Cascade County, Montana by the Honorable Brian Morris, in an
order filed on July 17, 2019.
A full-text copy of the Court's July 19, 2019 Order is available at
https://is.gd/CSK2RV
MDL 2800: Joshpe v. Equifax Suit Moved to Northern Dist. of Georgia
-------------------------------------------------------------------
In the case, IN RE: EQUIFAX, INC., CUSTOMER DATA SECURITY BREACH
LITIGATION, MDL No. 2800, Judge Sarah S. Vance of the U.S. Judicial
Panel on Multidistrict Litigation has entered an order transferring
the action styled JOSHPE v. EQUIFAX INFORMATION SERVICES LLC, C.A.
No. 1:19-03146 from the Southern District of New York to the
Northern District of Georgia and, with the consent of that court,
assigned it to the Honorable Thomas W. Thrash for inclusion in the
coordinated or consolidated pretrial proceedings.
Plaintiff in the Joshpe action moves under Panel Rule 7.1 to vacate
the Panel's order conditionally transferring his action to MDL No.
2800. Defendant Equifax Information Services LLC (Equifax) opposes
the motion to vacate.
After considering the parties' arguments, Judge Vance finds this
action involves common questions of fact with the actions
previously transferred to MDL No. 2800, and that transfer under 28
U.S.C. Section 1407 will serve the convenience of the parties and
witnesses and promote the just and efficient conduct of the
litigation. The actions in MDL No. 2800 arise from a 2017
cybersecurity incident involving Equifax in which the personally
identifiable information of more than 145 million consumers
allegedly was compromised. Joshpe involves allegations, similar to
those in the MDL No. 2800 actions, that Equifax failed to
adequately safeguard plaintiff's personally identifiable
information, which was compromised during the Equifax data breach,
and failed to provide the public with timely notice of the breach.
Plaintiff does not dispute that his action arises out of the 2017
Equifax data breach or that it shares questions of fact and law
with the MDL No. 2800 actions. Instead, he argues that (1) the
questions of fact that are common to the MDL No. 2800 actions are
undisputed and, therefore, not sufficiently complex to warrant
transfer; (2) he alleges a unique New York state law claim; and (3)
transfer will cause him inconvenience. As the Panel already
determined when centralizing this docket, allowing common discovery
to proceed in a coordination fashion will promote the just and
efficient conduct of the litigation. While it is undisputed that a
data breach occurred, discovery still will be necessary into, for
instance, how the breach occurred, what Equifax could have done to
prevent it, and the facts surrounding Equifax's decision on when to
announce the breach. Plaintiff argues that unique factual
questions will include how each specific victim's personally
identifiable information was compromised, the lack of remedial
action taken by defendants with respect to specific plaintiffs, and
the precise ramifications and damages associated with each victim.
But this is true of many individual plaintiffs in the MDL and does
not weigh against transfer. Plaintiff's state law claim is
included in the consolidated consumer class action complaint in MDL
No. 2800 and, therefore, it is not unique. Moreover, plaintiff
asserts a claim under the Fair Credit Reporting Act, which also is
included in the MDL No. 2800 consolidated consumer class action
complaint. Finally, the Panel has held that, while it might
inconvenience some parties, transfer of a particular action often
is necessary to further the expeditious resolution of the
litigation taken as a whole.
A full-text copy of the Court's July 31, 2019 Transfer Order is
available at https://is.gd/xSBLjg
MDL 2804: 43 National Prescription Opiate Suits Moved to N.D. Ohio
------------------------------------------------------------------
In the case, IN RE: NATIONAL PRESCRIPTION OPIATE LITIGATION, MDL
No. 2804, Judge Sarah S. Vance of the U.S. Judicial Panel on
Multidistrict Litigation has entered an order transferring 43
actions to the Northern District of Ohio and, with the consent of
that court, assigned them to the Honorable Dan A. Polster for
inclusion in the coordinated or consolidated pretrial proceedings.
Plaintiffs in 43 actions move under Panel Rule 7.1 to vacate the
orders conditionally transferring their respective actions listed
on Schedule A to MDL No. 2804. Central District of California
plaintiff United Healthcare Services, Inc., also requests
establishment of a separate MDL consisting of claims against Insys
Therapeutics, Inc., in the District of Arizona. Various defendants
oppose the motions.
After considering the arguments of counsel, Judge Vance finds these
actions involve common questions of fact with the actions
previously transferred to MDL No. 2804, and that transfer under 28
U.S.C. Section 1407will serve the convenience of the parties and
witnesses and promote the just and efficient conduct of the
litigation. Moreover, transfer is warranted for the reasons set
forth in the Panel's order directing centralization. In that
order, the Panel held that the Northern District of Ohio was an
appropriate Section 1407 forum for actions sharing factual
questions regarding the allegedly improper marketing and
distribution of various prescription opiate medications into
states, cities, and towns across the country.
Despite some variances among the actions before the Panel, they
share a factual core with the MDL actions: the manufacturer and
distributor defendants' alleged knowledge of and conduct regarding
the diversion of these prescription opiates, as well as the
manufacturers' allegedly improper marketing of such drugs. The
actions therefore fall within the MDL's ambit.
The parties opposing transfer in 42 actions argue principally that
federal jurisdiction is lacking over their cases. But opposition
to transfer based on a jurisdictional challenge is insufficient to
warrant vacating conditional transfer orders covering otherwise
factually related cases. Several parties also argue2that including
their actions in this large MDL will cause them inconvenience.
Given the undisputed factual overlap with the MDL proceedings,
transfer is justified in order to facilitate the efficient conduct
of the litigation as a whole.
Central District of California plaintiff United HealthCare, which
brings claims against Insys for its role in United's purported
wrongful coverage of Subsys prescriptions, opposes transfer on the
grounds that its action, United Healthcare, is unique. United also
requests the creation of an Insys-only MDL.
The Judge denies the motion to vacate and the request to create a
new MDL. Insys initiated Chapter 11 proceedings in early June
2019. Creating a new MDL is inadvisable at this time -- no
litigation is ongoing at the moment against Insys, pursuant to the
automatic stay, and Insys has yet to weigh in on United's proposal.
Further, the United Healthcare action shares significant factual
overlap with many MDL actions. The Panel recently transferred a
third-party payor putative class action(of which United presumably
would be a member), the crux of which was that Insys perpetrated a
scheme to defraud third-party payors of prescription drugs by,
among other things, impersonating physician office staff and
falsifying patient records to induce third-party payors to pay for
prescriptions of Subsys. Moreover, Insys and its role in the
proliferation of Subsys is at issue in hundreds of actions brought
by other MDL plaintiffs.
A full-text copy of the Court's July 31, 2019 Transfer Order is
available at https://is.gd/1vpltH
MDL 2804: Court Vacates Conditional Transfer Orders for 2 Lawsuits
------------------------------------------------------------------
In the case, IN RE: NATIONAL PRESCRIPTION OPIATE LITIGATION, MDL
No. 2804, the U.S. Judicial Panel on Multidistrict Litigation has
entered an order vacating its conditional transfer orders
designated as "CTO-89 and 92" filed on April 12, 2019, and May 7,
2019, respectively, as it relates to two actions:
DIST DIV. C.A. NO. CASE CAPTION
---- ---- -------- ------------
E.D. Va. 3 19-00242 Dinwiddie County, Virginia v.
Purdue Pharma, L.P. et al
C.D. Cal. 2 19-03588 City of El Monte et al v. Purdue
Pharma L.P.et al
The Panel further ordered that the Hearing Session Order and the
attached Schedule filed on June 18, 2019, are VACATED insofar as
they relate to these actions.
Conditional transfer orders were filed in the actions on April 12,
2019, and May 7, 2019, respectively. Prior to expiration of that
order's 7-day stay of transmittal, plaintiffs filed notices of
opposition to the proposed transfer. Plaintiffs later filed motions
and briefs to vacate the conditional transfer orders. The Panel
has now been advised that these actions have been remanded to their
respective state courts.
A full-text copy of the Court's July 8, 2019 Order is available at
https://is.gd/nib4Z8
MDL 2804: Court Vacates CTO for Illinois Public Risk Fund's Suit
----------------------------------------------------------------
In the case, IN RE: NATIONAL PRESCRIPTION OPIATE LITIGATION, MDL
No. 2804, the U.S. Judicial Panel on Multidistrict Litigation has
entered an order vacating its conditional transfer order designated
as "CTO-94" filed on May 22, 2019, as it relates to the action
styled Illinois Public Risk Fund v. Purdue Pharma L.P. et al.,
(N.D. Ill., C.A. No. 1:19-03210).
The Court further ordered that the Hearing Session Order and the
attached Schedule filed on June 18, 2019, are VACATED insofar as
they relate to this action.
A conditional transfer order was filed in this action (Illinois) on
May 22, 2019. Prior to expiration of that order's 7-day stay of
transmittal, plaintiff in Illinois filed a notice of opposition to
the proposed transfer. Plaintiff later filed a motion and brief to
vacate the conditional transfer order. The Panel has now been
advised that Illinois was remanded to the Circuit Court of Cook
County, Illinois, by the Honorable Matthew F. Kennelly in an order
filed on July 15, 2019.
A full-text copy of the Court's July 22, 2019 Order is available at
https://is.gd/U7QaNi
MDL 2804: Court Vacates CTO-92 for Kern County's Opiate Lawsuit
---------------------------------------------------------------
In the case, IN RE: NATIONAL PRESCRIPTION OPIATE LITIGATION, MDL
No. 2804, the U.S. Judicial Panel on Multidistrict Litigation has
entered an order vacating its conditional transfer order designated
as "CTO-92" filed on May 7, 2019, as it relates to the action
styled County of Kern, et al. v. Purdue Pharma L.P. et al., (E.D.
Calif., C.A. No. 1:19-00557).
The Panel further ordered that the Hearing Session Order and the
attached Schedule filed on June 18, 2019, are VACATED insofar as
they relate to this action.
A conditional transfer order was filed in this action (Kern County)
on May 7, 2019. Prior to expiration of that order's 7-day stay of
transmittal, plaintiffs in Kern County filed a notice of opposition
to the proposed transfer. Plaintiffs later filed a motion and brief
to vacate the conditional transfer order. The Panel has now been
advised that Kern County was remanded to the Kern County Superior
Court, California, by the Honorable Lawrence J. O'Neill in an order
filed on July 23, 2019.
A full-text copy of the Court's July 24, 2019 Order is available at
https://is.gd/nFkgr9
MDL 2873: 2 Products Liability Suits Transferred to South Carolina
------------------------------------------------------------------
In the case, IN RE: AQUEOUS FILM-FORMING FOAMS PRODUCTS LIABILITY
LITIGATION, MDL No. 2873, Judge Sarah S. Vance of the U.S. Judicial
Panel on Multidistrict Litigation has entered an order transferring
two actions to the District of South Carolina and, with the consent
of that court, assigned them to the Honorable Richard M. Gergel for
coordinated or consolidated pretrial proceedings.
The two actions are:
* In the District of Colorado, SECURITY WATER DISTRICT, ET AL.
v. UNITED STATES OF AMERICA, C.A. No. 1:19-00649; and
* In the District of New Jersey, RIDGEWOOD WATER v. 3M COMPANY,
ET AL., C.A. No. 2:19-09651.
Plaintiffs in the actions listed on Schedule A move under Panel
Rule 7.1 to vacate the Panel's orders that conditionally
transferred these actions to the District of South Carolina for
inclusion in MDL No. 2873. Defendant United States of America
opposes the motion in the District of Colorado Security Water
District action, while defendants 3M Company, Tyco Fire Products,
LP, Chemguard, Inc., Buckeye Fire Equipment Company, and National
Foam, Inc., oppose the motion in the District of New Jersey
Ridgewood Water action.
Plaintiffs in Security Water District argue that transfer is
inappropriate because they assert claims against the United States
related to the alleged contamination of groundwater near Peterson
Air Force Base. Even so, Security Water District shares common
factual questions with the actions pending in MDL No. 2873. Like
those actions, plaintiffs in Security Water District allege that
the groundwater near Peterson Air Force Base was contaminated
through the use of aqueous film-foaming foams (AFFFs). Several
actions involving claims against the United States relating to the
use of AFFFs at Air Force bases have been transferred to or filed
in the MDL. These actions will involve the same or similar
discovery relating to the military's use of AFFFs, as well as the
same asserted defense that the discretionary function exception to
the Federal Tort Claims Act, 28 U.S.C. Section 2680(a), protects
the United States from liability to plaintiffs. Additionally,
there are more than forty actions against the AFFF manufacturers
pending in the MDL that allege that the Air Force's use of AFFFs at
Peterson Air Force Base contaminated nearby water supplies.
Security Water District is likely to share common factual questions
and discovery with these actions as well. Centralization will
allow coordinated discovery among all these actions to proceed in a
streamlined and efficient manner.
Plaintiff in Ridgewood Water argues that federal subject matter
jurisdiction over its action is lacking and that its pending motion
for remand to state court should be decided by the transferor
court. The Panel has held that such jurisdictional issues
generally do not present an impediment to transfer. Plaintiff can
present its remand arguments to the transferee judge.
Plaintiff in Ridgewood Water also argues that transfer is
inappropriate because unique issues relating to the contamination
of its water supplies will predominate over common questions of
fact with the actions pending in the MDL. In particular, plaintiff
argues that it alleges multiple sources of contamination, only some
of which stem from the use of AFFFs. This argument is
unpersuasive. Plaintiff alleges that AFFF used by the Ridgewood
Fire Department is a source of the perfluorooctane sulfonate (PFOS)
and/or perfluorooctanoic acid (PFOA) contamination. That plaintiff
alleges additional sources of contamination do not convert
Ridgewood Water into a "non-AFFF" case of the type the Panel
excluded from the MDL in the initial centralization order.
Ridgewood Water shares numerous factual questions regarding AFFFs
and PFOS/PFOA contamination with the actions in the MDL. Moreover,
plaintiff asserts many of the same product3liabilityclaims against
the same manufacturer defendants as the majority of actions pending
in the MDL.
Plaintiff emphasizes that the government contractor defense is not
at issue in Ridgewood Water. This does not weigh against
centralization. Multiple contamination sites already at issue in
the MDL involve non-military firefighting or industrial facilities,
and likewise may not involve the government contractor defense.
Transfer under Section 1407 does not require a complete identity of
factual and legal issues when the actions, as they do here, arise
from a common factual core.
Finally, plaintiff in Ridgewood Water contends that transfer will
unnecessarily delay the prosecution of its claims. The Panel
rejects this argument. Ridgewood Water was only recently filed,
and discovery in the MDL has only just begun. Plaintiff will
benefit from coordination with other water providers asserting
similar claims against the AFFF manufacturers. In any event,
transfer of an action is appropriate if it furthers the expeditious
resolution of the litigation taken as a whole, even if some parties
to the action might experience inconvenience or delay. To the
extent plaintiff seeks "unique or time-sensitive relief pertaining
to its water supplies, [it] can and should raise such concerns with
the transferee court."
Accordingly, after considering the argument of counsel, Judge Vance
finds that the two actions involve common questions of fact with
the actions transferred to MDL No. 2873, and that transfer under 28
U.S.C. Section 1407 will serve the convenience of the parties and
witnesses and promote the just and efficient conduct of the
litigation. In the Panel's order centralizing this litigation, the
Judge held that the District of South Carolina was an appropriate
Section 1407 forum for actions in which plaintiffs allege that AFFF
products used at airports, military bases, or certain industrial
locations caused the release of PFOS and/or PFOA into local
groundwater and contaminated drinking water supplies. The actions
in the MDL share factual questions concerning the toxicity of PFOA
and PFOS and the effects of these substances on human health; these
substances' chemical properties and propensity to migrate in
groundwater supplies; the knowledge of the AFFF manufacturers
regarding the dangers of PFOA and PFOS; their warnings, if any,
regarding proper use and storage of AFFFs; and to what extent, if
any, defendants conspired or cooperated to conceal the dangers of
PFOA and PFOS in their products. Security Water District and
Ridgewood Water will involve similar factual questions.
A full-text copy of the Court's July 31, 2019 Transfer Order is
available at https://is.gd/IJ8tWF
MDL 2875: 2 Collins Product Liability Suits Moved to New Jersey
---------------------------------------------------------------
In the case, IN RE: VALSARTAN PRODUCTS LIABILITY LITIGATION, MDL
No. 2875, Judge Sarah S. Vance of the U.S. Judicial Panel on
Multidistrict Litigation has entered an order transferring two
Collins lawsuits from the Southern District of California to the
District of New Jersey and, with the consent of that court,
assigned them to the Honorable Robert B. Kugler for inclusion in
the coordinated or consolidated pretrial proceedings.
The two cases are:
* COLLINS v. PRINSTON PHARMACEUTICAL, INC., ET AL., C.A. No.
3:19–00415; and
* COLLINS v. AUROBINDO PHARMA USA, INC., ET AL., C.A. No.
3:19–00688
Plaintiff Carrie Collins moves under Panel Rule 7.1 to vacate the
Panel's orders conditionally transferring the two actions to MDL
No. 2875. In one action, plaintiff brings putative statewide class
claims against defendants Prinston Pharmaceutical Inc., and Solco
Healthcare U.S., LLC, based on their alleged role in the
manufacture of generic valsartan drugs (the Prinston action). In
the second action, plaintiff brings similar putative class claims
against another manufacturer, Aurobindo Pharma USA, Inc. (APUSA)
and Aurobindo Ltd. (the Aurobindo action). Defendants Prinston
Pharmaceutical, Solco Healthcare, and APUSA oppose the motions to
vacate and support transfer.
After considering the argument of counsel, Judge Vance finds these
actions involve common questions of fact with the actions in MDL
No.2875and that transfer under 28 U.S.C. Section 1407 will serve
the convenience of the parties and witnesses and promote the just
and efficient conduct of the litigation. Like the actions in the
MDL, these actions involve factual questions arising from
allegations that the defendants manufactured or sold generic
valsartan containing nitrosamine impurities known as NDMA and NDEA,
that the impurities present a risk of cancer and other injuries,
and that plaintiff1suffered damages as a result.
In support of the motions to vacate, plaintiff principally argues
that the actions were improperly removed, and the transferor courts
should decide the issues presented in plaintiff's motions for
remand to state court. The pendency of jurisdictional objections
is not, as a general matter, a sufficient reason to deny transfer.
Moreover, after the filing of plaintiff's motion to vacate in one
of the actions (Collins v. Aurobindo), the transferor court
resolved the jurisdictional objections in that action and denied
plaintiff's remand motion. Plaintiff can present the remand
arguments in the other action to the transferee judge.
Plaintiff also asserts that the Class Action Fairness Act (CAFA)
bars transfer of these actions, citing Panel precedent concerning
CAFA's restriction on transfer of "mass actions." But nothing in
the Panel's Darvocet decision or CAFA prevents transfer of these
putative class actions. Darvocet interpreted a restriction
applicable to transfer of "mass actions" only, not class actions.
The face of each complaint states that each action2is a "statewide
class action," and plaintiff has never asserted that the actions
are "mass actions" under CAFA.
Additionally, plaintiff contends that transfer will be inefficient
because the putative classes in the actions are California
purchasers of valsartan, and the claims rest on California laws as
to which California courts have extensive experience. These
arguments are unconvincing. The putative statewide classes in
Prinston and Aurobindo overlap with the putative nationwide class
and California subclass in the MDL, and California law claims are
pending before the transferee court. Thus, centralization will
eliminate duplicative discovery and prevent inconsistent pretrial
rulings, including with respect to class certification.
A full-text copy of the Court's July 31, 2019 Transfer Order is
available at https://is.gd/VzQAuM
MDL 2896: 4 Patent Suits by Keryx Transferred to Dist. of Delaware
------------------------------------------------------------------
In the case, IN RE: AURYXIA (FERRIC CITRATE) PATENT LITIGATION, MDL
No. 2896, Judge Sarah S. Vance of the U.S. Judicial Panel on
Multidistrict Litigation has entered an order transferring four
actions of Keryx Biopharmaceuticals, Inc., et al., to the District
of Delaware and, with the consent of that court, assigned them to
the Honorable Leonard P. Stark for coordinated or consolidated
pretrial proceedings.
Plaintiffs and patentholders Keryx Biopharmaceuticals, Inc., Panion
& BF Biotech, Inc., and Chen Hsing Hsu (together, Keryx) move under
28 U.S.C. Section 1407 to centralize pretrial proceedings in this
litigation in the District of Delaware. This litigation consists
of four actions pending in two districts.
In the District of Delaware
* KERYX BIOPHARMACEUTICALS, INC., ET AL. v. LUPIN LTD., ET AL.,
C.A. No. 1:18-01968
* KERYX BIOPHARMACEUTICALS, INC., ET AL. v. TEVA
PHARMACEUTICALSUSA, INC., C.A. No. 1:18-02012
* KERYX BIOPHARMACEUTICALS, INC., ET AL. v. CHEMO RESEARCH S.L.,
ETAL., C.A. No. 1:19-00220
In the Northern District of West Virginia, KERYX
BIOPHARMACEUTICALS, INC., ET AL. v. MYLAN PHARMACEUTICALSINC., C.A.
No. 1:19-00040.
The Panel has been notified that plaintiffs have filed another two
potentially related actions in the District of Delaware.
Responding generic manufacturer defendants do not oppose the
motion.
Keryx filed these actions after the generic drug manufacturer
defendants submitted Abbreviated New Drug Applications (ANDAs)
seeking approval by the U.S. Food and Drug Administration (FDA) to
make and sell generic versions of Auryxia (ferriccitrate), which is
used in the treatment of adults with chronic kidney disease. The
actions on the motion area series of Hatch-Waxman patent
infringement lawsuits, in which Keryx alleges that each of the
defendants has infringed thirteen or fourteen U.S. Patents by
filing ANDAs seeking FDA approval to market generic Auryxia in the
United States.
After considering all arguments, Judge Vance finds that these
actions involve common questions of fact, and that centralization
in the District of Delaware will serve the convenience of the
parties and witnesses and promote the just and efficient conduct of
this litigation. These actions involve substantially identical
claims that defendants infringed the Auryxia patents.
Centralization is warranted to prevent inconsistent rulings
(particularly with respect to claim construction and issues of
patent validity) and overlapping pretrial obligations, reduce
costs, and create efficiencies for the parties, courts, and
witnesses.
The Panel recently centralized a similar litigation, finding that
because of "the complexity of the allegations and regulatory
framework governing Hatch-Waxman cases, as well as the need for
swift progress in litigation involving the potential entry of
generic drugs into the market, placing all actions before a single
judge should foster the efficient resolution of all of the
actions." The Judge is persuaded that centralization of these
cases similarly will lead to their efficient resolution.
The Judge selects the District of Delaware as the transferee
district for these actions. All but one of the six related actions
are pending in this district. She is confident that the Honorable
Leonard P. Stark, who is well-versed in complex patent litigation,
will steer this matter on a prudent course.
A full-text copy of the Court's July 31, 2019 Transfer Order is
available at https://is.gd/BbwcCf
MDL 2897: Court Denies Bid to Centralize 3 Products Liability Suits
-------------------------------------------------------------------
In the case, IN RE: BERNZOMATIC AND WORTHINGTON BRANDED HANDHELD
TORCH PRODUCTS LIABILITY LITIGATION (No. II), MDL No. 2897, Judge
Sarah S. Vance of the U.S. Judicial Panel on Multidistrict
Litigation has denied the Plaintiffs' motion for Section 1407
centralization of the following actions:
* District of Arizona, PERALTA v. WORTHINGTON INDUSTRIES
INCORPORATED, ET AL., C.A. No. 2:17-03195
* In the Central District of California, AVERY v. BERNZOMATIC,
ET AL., C.A. No. 2:19-02856
* In the Northern District of Illinois, BAILEY v. BERNZOMATIC,
ET AL., C.A. No. 1:16-07548
Plaintiffs in the three actions listed on Schedule A move under 28
U.S.C. Section 1407to centralize this litigation in the Central
District of California or, alternatively, the Northern District of
Illinois. The litigation consists of three actions pending in
three districts. Responding defendants oppose centralization.
After considering the argument of counsel, Judge Vance concludes
that Section 1407 centralization of this litigation is not
necessary. The three actions here involve injuries arising from
the use of handheld torches that were attached to small propane
cylinders. The accidents in which plaintiffs suffered injuries
arose indifferent circumstances – Plaintiff Bailey was burning
weeds with his torch upside down, Plaintiff Peralta was lighting
his fireplace, and Plaintiff Avery's cylinder was compromised by an
out-of-control backyard fire. Additionally, although all
plaintiffs were using propane non-refillable tall cylinders,
different types of torches were attached to the cylinders:
Plaintiffs Bailey and Avery's cylinders had UL2317 torches
attached, while Plaintiff Peralta was using a cylinder with a
TS4000 torch.
There is some factual overlap among the actions, but the Judge is
not convinced that centralizing these cases -- two of which are at
an advanced procedural stage -- would produce much, if any,
tangible benefit. There are only three actions in this litigation,
and the parties to the actions are represented by common counsel.
Notably, two cases -- the Northern District of Illinois Bailey
action and the District of Arizona Peralta action -- are nearing
the end of discovery. As the Panel noted in its order denying
centralization (when four related actions were pending), the
proponent of centralization bears a heavier burden to demonstrate
that centralization is appropriate when only a few actions are at
issue. Moving plaintiffs (again) have failed to carry that burden.
Given the limited number of actions and involved counsel, informal
coordination of discovery and other pretrial matters among the
parties and involved courts, if the need arises, is preferable to
formal centralization under Section 1407.
Attorney Andrew W. Shalaby, who represents all plaintiffs, bemoans
the delay and duplicative efforts expended in these cases. The
blame, though, for much of that delay and inefficiency appears to
rest on his own misconduct. For instance, Mr. Shalaby's pro hac
vice status was revoked in the Northern District of Illinois Bailey
action, after the presiding judge concluded, inter alia, that he
could no longer rely on Mr. Shalaby's truthfulness. Significant
delays have occurred while the Bailey plaintiff attempts to obtain
new counsel (the attorney who initially replaced Mr. Shalaby has
since withdrawn from the case).
This Section 1407 motion borders on being frivolous. Mr. Shalaby
appears to be seeking centralization either to delay proceedings in
the two advanced actions, in which he faces serious sanctions, or
to wage a personal battle against defendants. Regardless of his
motive, these circumstances -- once again -- do not come close to
those in which we have found centralization to be appropriate.
The Judge cautions Mr. Shalaby that any further motions to
centralize based on these facts may result in restrictions on his
ability to file before the Panel. Instead of filing further
matters before the Panel, Mr. Shalaby should focus his efforts on
bringing the claims of the plaintiffs he purports to represent to
an appropriate resolution.
A full-text copy of the Court's July 31, 2019 Order is available at
https://is.gd/6OUigQ
MDL 2898: Court Denies Bid to Centralize 10 Product Liability Suits
-------------------------------------------------------------------
In the case, IN RE: HYUNDAI AND KIA GDI ENGINE MARKETING, SALES
PRACTICES, AND PRODUCTS LIABILITY LITIGATION, MDL No. 2898, Judge
Lewis A. Kaplan of the U.S. Judicial Panel on Multidistrict
Litigation has denied the plaintiffs' motion to centralize 10
actions, as listed on Schedule A, in the Central District of
California.
Plaintiffs in the Northern District of California Musgrave action
move under 28 U.S.C. Section 1407 to centralize pretrial
proceedings in the actions listed on Schedule A in the Central
District of California. This litigation consists of ten putative
class actions, seven of which are pending in the Central District
of California. The other three actions are pending in the Northern
District of California, the Middle District of Florida, and the
Western District of Washington. In addition, the parties have
informed the Panel of two related actions pending in the Central
and Northern Districts of California. All responding parties --
plaintiffs in five consolidated actions in the Central District of
California, plaintiffs in the Western District of Washington Short
action, and defendants -- oppose centralization. The Short
plaintiffs alternatively support the Central District1of California
as the transferee district, but request the Panel instruct the
transferee court to place Short on a separate track for discovery
and pretrial motion practice.
On the basis of the papers filed and the hearing held, Judge Kaplan
concludes that centralization will not serve the convenience of the
parties and witnesses or further the just and efficient conduct of
this litigation. These actions share some factual issues arising
from allegations that manufacturing or design defects in certain
Hyundai and Kia vehicles equipped with gas direct injection (GDI)
engines may cause those engines to seize, fail, and potentially
catch fire. The eight related actions pending in the Central
District of California, though, have all been assigned to the same
judge, and five have been consolidated. Only four actions are
pending outside the Central District of California, two of which
involve notably different factual allegations regarding the alleged
defects. Where only a minimal number of actions are involved, the
proponent of centralization bears a heavier burden to demonstrate
that centralization is appropriate. Movants have not met that
burden here.
In addition, the parties in the consolidated actions pending in the
Central District of California have informed the Panel that they
have reached a settlement-in-principle that will resolve the claims
as to vehicles equipped with the Theta II engine, which constitute
the majority of vehicles and models at issue in the actions. The
parties anticipate moving for preliminary approval of the proposed
class settlement shortly. Movants argue that centralization is
necessary to protect the interests of the class members with
respect to the proposed settlement. Movants, though, may file
objections in the Central District of California if and when the
parties there move for court approval of the proposed class
settlement. Centralization at this time is premature and could
delay the class-wide settlement with little or no benefit to the
parties or putative class members.
A full-text copy of the Court's July 29, 2019 Order is available at
https://is.gd/xWfJDI
MDL 2899: Court Denies Bid to Centralize 6 RICO Suits v. Aquawood
-----------------------------------------------------------------
In the case, IN RE: SLB ENTERPRISE RICO LITIGATION, MDL No. 2899,
Judge Sarah S. Vance of the U.S. Judicial Panel on Multidistrict
Litigation has denied a motion for centralization of ASI, INC. v.
AQUAWOOD, LLC, ET AL., C.A. No. 0:19-00763 filed in the District of
Minnesota and five other actions in the Southern District of Iowa.
The Iowa actions are:
* RENNENGER v. AQUAWOOD, LLC, ET AL., C.A. No. 4:19-00123
* ROUSH v. AQUAWOOD, LLC, ET AL., C.A. No. 4:19-00131
* DRAKE v. AQUAWOOD, LLC, ET AL., C.A. No. 4:19-00132
* MILLER v. AQUAWOOD, LLC, ET AL., C.A. No. 4:19-00134
* ACKELSON v. AQUAWOOD, LLC, ET AL., C.A. No. 4:19-00135
Plaintiff in one action (ASI) moves under 28 U.S.C. Section 1407 to
centralize this litigation in the Southern District of Iowa.
Plaintiffs in all actions support centralization in the Southern
District of Iowa. All responding defendants support, or do not
oppose, centralization, but request the Central District of
California or, alternatively, the District of New Jersey.
On the basis of the papers filed and the hearing session held,
Judge Vance concludes that centralization is not necessary for the
convenience of the parties and witnesses or to further the just and
efficient conduct of the litigation. The actions unquestionably
involve nearly identical factual allegations that affiliated toy
companies based largely in Hong Kong and California, doing business
under the names SLB Toys, Manley Toy Direct, Toy Quest, and other
alleged shell companies (together, the SLB companies)are engaged in
a common scheme to evade court judgments. But where only a minimal
number of actions are involved, the proponent of centralization
bears a heavier burden to demonstrate that centralization is
appropriate. Movant has failed to do so here.
There are only six actions in this litigation pending in two
districts. Moreover, all five actions in the Southern District of
Iowa action are assigned to the same judge. Thus, as a practical
matter, there are only two sets of pretrial proceedings to
coordinate. Such coordination should be aided by the fact that
plaintiffs are represented by the same counsel in all actions.
Additionally, the number of involved defense counsel appears to be
limited. Although plaintiffs have named a total of 19 defendants
in their nearly identical complaints, the four defendants appearing
in the Panel proceedings are represented by two counsel, and the
underlying dockets indicate that only one additional firm is
representing six recently served defendants.
Moreover, there appear to be other alternatives to centralization.
For example, plaintiffs could seek Section 1404 transfer of the
District of Minnesota action to the Southern District of Iowa where
all other actions on the motion are pending. Although the
responding defendants prefer another district at this time, a
reasonable prospect still exists that the multidistrict character
of this litigation maybe eliminated without resort to
centralization. Alternatively, the parties could agree to stay
discovery in the later-filed Iowa actions under the first-to-file
rule.
A full-text copy of the Court's July 31, 2019 Order is available at
https://is.gd/hjRdNq
MDL 2900: Court Denies Motion to Centralize 2 Shareholder Lawsuits
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In the case, IN RE: TRUECAR, INC., SHAREHOLDER DERIVATIVE
LITIGATION, MDL No. 2900, Judge Sarah S. Vance of the U.S. Judicial
Panel on Multidistrict Litigation has denied the TrueCar
defendants' motion for centralization of two actions.
These two actions are:
* In the Central District of California, DRULIAS v. GUTHRIE, ET
AL., C.A. No. 2:19-01636; and
* In the District of Delaware, IN RE TRUECAR, INC. SHAREHOLDER
DERIVATIVE LITIGATION, C.A. No. 1:19-00617.
The TrueCar defendants move under 28 U.S.C. Section 1407 to
centralize pretrial proceedings in this litigation in the District
of Delaware. Defendant United Services Automobile Association
joins the motion. The District of Delaware plaintiff supports
centralization in the District of Delaware or, alternatively, the
Central District of California. The Central District of California
plaintiff opposes centralization or, alternatively, suggests
centralization in the Central District of California.
On the basis of the papers filed and the hearing held, Judge Vance
concludes that centralization is not necessary for the convenience
of the parties and witnesses or to further the just and efficient
conduct of this litigation. The actions share factual issues
arising from plaintiffs' allegations that the defendants breached
their fiduciary duties (or aided and abetted such breaches)to
TrueCar by causing the company to issue false and misleading
statements in 2017. Plaintiffs allege that defendants illegally
profited from their statements through millions in insider trades.
But there are only two actions pending in two districts. The
TrueCar defendants are represented by the same counsel in both
actions. In these circumstances, informal coordination seems
practicable. Moreover, the Judge is not inclined to centralize
just two cases when the parties have made no genuine efforts to
cooperate informally. It appears that movants have not explored
this option as an alternative to Section 1407 centralization, or
indeed any option aside from asking the Central District of
California plaintiff to move his action to the District of
Delaware. The Panel has held that "centralization under Section
1407 should be the last solution after considered review of all
other options." Given the limited number of parties, counsel, and
courts, informal cooperation should be sufficient to avoid
duplicative pretrial activity(e.g., filing notices of depositions
in all actions, and agreeing that discovery obtained in one action
will be usable in all actions).
At oral argument, movants represented that several other cases were
likely to be filed. The Panel is presented with just two cases,
and is reluctant to grant centralization based on the mere
possibility of future actions.
A full-text copy of the Court's July 31, 2019 Order is available at
https://is.gd/WhgqTn
MDL 2901: 3 Suits vs. Ford Motor Moved to Eastern Dist. Michigan
----------------------------------------------------------------
In the case, IN RE: FORD MOTOR CO. F-150 AND RANGER TRUCKFUEL
ECONOMY MARKETING AND SALES PRACTICES LITIGATION, MDL No. 2901,
Judge Sarah S. Vance of the U.S. Judicial Panel on Multidistrict
Litigation has entered an order transferring three actions to the
Eastern District of Michigan and, with the consent of that court,
assigned them to the Honorable Sean F. Cox for coordinated or
consolidated pretrial proceedings.
Plaintiffs in two actions move under 28 U.S.C. Section 1407 to
centralize this*litigation in the Eastern District of Michigan.
This litigation currently consists of three actions pending in
three districts, as listed below:
Middle District of Alabama
COOK v. FORD MOTOR COMPANY, C.A. No. 2:19–00335
Central District of Illinois
HUBERT v. FORD MOTOR COMPANY, C.A. No. 2:19–02125
Eastern District of Michigan
LLOYD v. FORD MOTOR COMPANY, C.A. No. 5:19–11319
Since the filing of the motion, the Panel has been notified of
eleven additional related federal actions.
All responding parties support centralization, but differ on the
appropriate transferee district. Plaintiffs in three potential
tag-along actions (Travis, Smith, and Allen) support centralization
in the Eastern District of Michigan. Plaintiffs in three other
potential tag-along actions (Sartip, Dawson, and Goodfriend)
request the Central District of California and, alternatively, the
Eastern District of Michigan. Defendant Ford Motor Company
requests the Southern District of New York and, alternatively, the
Eastern District of Michigan.
On the basis of the papers filed and the hearing session held,
Judge Vance finds that these actions involve common questions of
fact, and that centralization will serve the convenience of the
parties and witnesses and promote the just and efficient conduct of
this litigation. These putative nationwide and statewide class
actions share complex factual questions arising from allegations
that defendant Ford falsely marketed and advertised the miles per
gallon estimates for Ford F-150 and Ford Ranger trucks, model years
2017 to 2019. Plaintiffs contend that defendants marketed the
vehicles as achieving certain EPA mileage estimates, but those
vehicles performed well below the advertised levels. Specifically,
all actions allege that Ford misrepresented and miscalculated road
testing factors, including "road load," during internal testing
processes in order to report that its automobiles are more fuel
efficient than they actually are, and that Ford is conducting an
investigation into the road load specifications used to certify its
fuel economy ratings. Centralization will eliminate duplicative
discovery; prevent inconsistent pretrial rulings, especially with
respect to class certification and Daubert motions; and conserve
the resources of the parties, their counsel and the judiciary.
The Judge concludes that the Eastern District of Michigan is an
appropriate transferee forum. Ford, the sole defendant in all
actions, has its headquarters in this district, and thus relevant
documents and witnesses will be located in this district. Judge
Sean F. Cox is an experienced transferee judge with the ability
and willingness to manage this litigation efficiently. The Panel
is confident he will steer this matter on a prudent course.
A full-text copy of the Court's August 1, 2019 Transfer Order is
available at https://is.gd/6puJNh
MDL 2903: 10 Product Liability Suits Transferred to W.D. New York
-----------------------------------------------------------------
In the case, IN RE: FISHER-PRICE ROCK ‘N PLAY SLEEPER MARKETING,
SALES PRACTICES, AND PRODUCTS LIABILITY LITIGATION, MDL No. 2903,
Judge Sarah S. Vance of the U.S. Judicial Panel on Multidistrict
Litigation has entered an order transferring 10 actions, as listed
on Schedule A, to the Western District of New York and, with the
consent of that court, assigned them to the Honorable Geoffrey W.
Crawford, sitting in the Western District of New York as a visiting
judge under 28 U.S.C. Section 292(b), for coordinated or
consolidated pretrial proceedings.
Defendants Fisher-Price, Inc., and Mattel, Inc., move under 28
U.S.C. Section 1407 to centralize pretrial proceedings in the
actions listed on Schedule A in the Central District of California.
This litigation consists of ten putative class actions, two of
which are pending in the Central District of California. Six
actions are pending in the Western District of New York, one action
in the District of Colorado, and one action in the Northern
District of Oklahoma. In addition, the parties have informed the
Panel of five related actions pending in the Southern District of
Iowa and the Western District of New York.
Plaintiffs in the actions pending in the Central District of
California support the motion. Plaintiffs in the six Western
District of New York actions, as well as plaintiffs in two
potential tag-along actions pending in that district, oppose
centralization. Alternatively, these plaintiffs suggest the
Western District of New York as the transferee district.
Plaintiffs in the District of Colorado and Northern District of
Oklahoma actions also oppose centralization. Alternatively, these
plaintiffs ask that the Panel excludes the Colorado and Oklahoma
actions from the MDL or, if the Panel declines to do so, that the
judge centralizes in either the District of Colorado or the
Northern District of Oklahoma.
On the basis of the papers filed and hearing session held, Judge
Vance finds that the actions listed on Schedule A involve common
questions of fact, and that centralization in the Western District
of New York will serve the convenience of the parties and witnesses
and promote the just and efficient conduct of this litigation.
These actions share factual questions arising from allegations that
Fisher-Price's Rock 'n Play Sleeper(RNPS ) is unsafe because, among
other reasons, its angled design does not allow infants to sleep in
a supine position, which allegedly increases the risk that infants
will suffer from positional asphyxia, plagiocephaly, and
torticollis. Plaintiffs uniformly allege that defendants'
advertising and marketing for the RNPS was false and misleading,
and that Fisher-Price's April 2019 recall of the RNPS was
deficient.
The plaintiffs opposing centralization do not dispute the existence
of common factual issues, but they argue that these factual issues
are not sufficiently complex to warrant centralization. The Panel
rejects this argument. Discovery regarding the design of the RNPS
and whether it unreasonably increases the risk of positional
asphyxiation in infants likely will be more akin to the discovery
required in products liability litigations than run-of-the-mill
false advertising lawsuits, with expert testimony required on a
number of complicated topics, such as the suitability of the RNPS
for prolonged sleeping by infants. The opposing plaintiffs also
point to differences in the putative classes asserted in the
actions, but any such differences are outweighed in this instance
by the potential for duplicative and complex discovery and
discovery motions, which will be substantially eliminated through
centralization. In any event, the asserted classes are not so
different as the opposing plaintiffs contend. Plaintiffs assert
similar causes of action for breach of warranties, fraud, unjust
enrichment, violation of state consumer protection laws, and
negligence. Even setting aside the putative nationwide classes
asserted in the majority of actions, at least three actions
(pending in the Central District of California and the Western
District of New York) assert claims on behalf of the same putative
class of California purchasers of the RNPS, while two actions
(pending in the District of Colorado and the Western District of
New York) assert claims on behalf of the same putative class of
Colorado purchasers. Centralization thus will eliminate
duplicative discovery; prevent inconsistent pretrial rulings,
including with respect to class certification; and conserve the
resources of the parties, their counsel, and the judiciary.
The Panel is not persuaded that alternatives to centralization are
practicable or preferable for this litigation. The opposing
plaintiffs point to the motions of several of the New York
plaintiffs to intervene in and transfer the two Central District of
California actions to the Western District of New York. These
motions, though, do not offer a "reasonable prospect" of
eliminating the multidistrict character of this litigation. Here,
the motions are opposed by all parties to the California actions,
both plaintiffs and defendants. Even if the motions were granted,
there still would be actions pending in four districts, as no
transfer motions have been filed in the District of Colorado, the
Southern District of Iowa, or the Northern District of Oklahoma.
While it is possible that Section 1404 motions could be filed in
all the actions, the Judge concludes that centralization of this
litigation is most appropriate now. It expeditiously places all
related actions before a single judge who can ensure that pretrial
proceedings are conducted in a streamlined manner leading to the
just and efficient resolution of all actions.
The opposing plaintiffs also contend that voluntary coordination of
discovery is practicable given the limited number of actions and
involved counsel. The pretrial proceedings in this litigation,
though, are likely to involve relatively complex causation issues
necessitating extensive common expert discovery and one or more
Dauber hearings. Additionally, the proposed nationwide classes
among the fifteen related actions, as well as at least two of the
putative state classes, overlap significantly. There are at least
five groups of plaintiffs' counsel in this litigation, and clear
fault lines already are evident between two of these groups (as
evidenced by the motions to intervene and transfer filed in the
Central District of California). In this instance, centralization
will provide superior coordination than could be achieved
informally among counsel.
Judge Vance denies the request of the Colorado and Oklahoma
plaintiffs to be excluded from this MDL. These plaintiffs contend
that their exclusion is warranted because they assert claims only
on behalf of non-overlapping putative state classes – an argument
the Panel already have rejected. In addition, they argue that
centralization will violate their rights to due process, in that
they will be unable to prosecute their claims independently of
other counsel in the MDL, in particular, whomever is appointed as
lead plaintiffs' counsel for the litigation. "The fundamental
requirement of due process is the opportunity to be heard at a
meaningful time and in a meaningful manner." Plaintiffs' arguments
are speculative, and the Panel finds they are without
merit—transfer will not deny plaintiffs the opportunity to
meaningfully participate in pretrial proceedings before the
transferee court.
The Western District of New York is an appropriate transferee
district for this litigation. This district has a strong
connection to these cases. Fisher-Price is headquartered in East
Aurora, New York, and the critical events and decisions underlying
plaintiffs' claims regarding the RNPS occurred there. Two thirds
of the related actions (10 of 15) were filed in this district,
which is supported by the majority of responding plaintiffs. The
Western District of New York thus presents a convenient and
relatively accessible forum for this litigation. All of the
related actions pending in this district are assigned to the
Honorable Geoffrey W. Crawford of the District of Vermont, who sits
in the Western District of New York as a visiting judge.
Centralization in the Western District of New York therefore allows
the Panel to assign this litigation to an able jurist who has not
yet had the opportunity to preside over an MDL. The Panel is
confident that Judge Crawford will steer this litigation on an
efficient and prudent course.
A full-text copy of the Court's August 1, 2019 Transfer Order is
available at https://is.gd/kDuHgj
MDL 2904: 10 Data Security Suits Transferred to New Jersey
----------------------------------------------------------
In the case, IN RE: AMERICAN MEDICAL COLLECTION AGENCY, INC.,
CUSTOMER DATA SECURITY BREACH LITIGATION, MDL No. 2904, Judge Sarah
S. Vance of the U.S. Judicial Panel on Multidistrict Litigation has
entered an order transferring 10 actions, as listed on Schedule A,
to the District of New Jersey and, with the consent of that court,
assigned them to the Honorable Madeline Cox Arleo for coordinated
or consolidated pretrial proceedings.
This litigation arises out of a data security breach on the systems
of*American Medical Collection Agency( AMCA),a breach that
reportedly compromised patient data1that various medical diagnostic
testing companies had provided to AMCA for billing and collection
purposes, including Quest Diagnostics, Inc. (Quest), Laboratory
Corporation of America Holdings(LabCorp), Bio-Reference
Laboratories, Inc. (Bio-Reference), and others. Quest, LabCorp,
and Bio-Reference publicly announced the breach in early June 2019,
and the putative class actions now before the Panel soon followed.
The Panel is presented with two motions for centralization under 28
U.S.C. Section 1407. In one motion, plaintiffs in a District of
New Jersey action (Fernandez) move to centralize ten actions, as
listed on Schedule A, in the District of New Jersey. They ask that
the scope of the proposed MDL be limited to Quest actions -- that
is, actions arising from the AMCA data breach brought on behalf of
Quest patients against Quest, Optum360 (a Quest contractor),and
AMCA. In their reply brief, they additionally propose a separate
MDL in the Southern District of New York for potential tag-along
actions involving LabCorp patients. In the other motion, plaintiff
in a Southern District of New York action (Worthey) moves to
centralize the ten actions listed on Schedule A, together with all
related actions arising out of the AMCA data breach (including
actions against LabCorp, Bio-Reference, and other laboratories) in
a single multi-defendant MDL in the Southern District of New York.
Since the filing of the two motions, the Panel has been notified of
32 potential tag-along actions, which involve putative class claims
against LabCorp, Quest, Optum360, Bio-Reference, and AMCA, singly
or in combination.
All responding parties support centralization but disagree on the
structure of the proposed MDL proceedings (two or more
laboratory-specific MDLs or a single omnibus MDL) and the proposed
transferee districts. Defendants Quest, Optum360, LabCorp, and
Bio-Reference unanimously support centralization of all actions in
a single multi-defendant MDL in the District of New Jersey or,
alternatively, the Southern District of New York. Plaintiffs in
nine actions also support a single multi-defendant MDL, and
variously propose the Southern District of New York, the Central
District of California, and the District of Minnesota as their
first or second choice for transferee district. Plaintiffs in 14
actions support creation of one or more laboratory-specific MDLs --
a Quest MDL in the District of New Jersey; a LabCorp MDL in the
Middle District of North Carolina or the Southern District of New
York; and, should the need arise, additional MDLs for other
laboratories impacted by the AMCA data breach.
Judge Vance finds that common factual questions in all actions
unquestionably arise from the same recently-disclosed breach of
AMCA's systems from August 2018 through March 2019, through which
an unauthorized user allegedly gained access to patients' personal
and financial information, including social security numbers and
credit card and bank account information, and patients' medical
information. Thus, discovery and motions concerning AMCA's data
security practices, how the unauthorized access occurred, and the
investigation into the breach will be substantially the same in all
actions.
The only issue is whether creation of a single multi-defendant MDL
or laboratory-specific MDLs will achieve greater efficiencies. The
plaintiffs supporting creation of laboratory-specific MDLs argue
that separate MDLs are warranted principally because (1) each
laboratory's practices and procedures for the storage and sharing
of patient data will raise unique factual issues; (2) each
laboratory had a distinct contractual relationship with AMCA; (3)
the laboratory defendants are direct competitors and, thus, will
need to protect against the disclosure of confidential information;
and (4) the common factual issues surrounding AMCA's conduct will
be minor because AMCA is in bankruptcy and likely will not
participate in the litigation.
In response, the parties supporting a single multi-defendant MDL
argue that (1) the central factual issues in all actions,
regardless of the named defendants, concern the same data breach on
AMCA's systems and, in particular, AMCA's data security practices
and the cause of the breach;(2) the actions propose overlapping
nationwide and statewide classes, and several actions propose a
class of all patients affected by the AMCA data breach without
limitation as to the laboratory used; (3) as a result,
centralization is necessary to avoid duplicative discovery and
class certification proceedings, as well as inconsistent pretrial
rulings; and (4)concerns about protection of confidential
proprietary information in a multi-defendant MDL likely are
overstated, given that all defendants support a single MDL, and in
any event, appropriate protective orders can address such concerns.
They also note that a number of complaints are not amenable to
separation into laboratory-specific MDLs, as they plead claims
against multiple laboratory defendants.
In the Panel's judgment, a single MDL encompassing Quest, LabCorp,
Bio-Reference, and potentially other laboratories is necessary to
ensure the just and efficient conduct of this litigation. In many
situations, the Panel is hesitant to bring together actions
involving competing defendants, but when, as here, the actions stem
from the same data breach, and there is significant overlap in the
central factual issues, parties, proposed classes, and claims, the
Panel finds that creation of a single MDL is warranted. A single,
multi-defendant MDL also will facilitate more efficient
coordination with the AMCA bankruptcy proceeding, in which the
parties' anticipated discovery of AMCA likely would take place.
Although the advocates of separate MDL shave identified certain
laboratory-specific issues, Section 1407 does not require a
complete identity of common factual issues or parties as a
prerequisite to transfer, and the presence of additional facts is
not significant where the actions arise from a common factual core.
The Panel is confident that the transferee judge can accommodate
any issues involving the different laboratories in a manner that
ensures the just and efficient resolution of all cases.
On the basis of the papers filed and the hearing session held,
Judge Vance finds that the actions listed on Schedule A involve
common questions of fact and that centralization will serve the
convenience of the parties and witnesses and promote the just and
efficient conduct of this litigation. All of the actions present
common factual questions concerning an alleged data breach of
AMCA's systems from about August 2018 through March 2019, that
allegedly compromised patient data provided to AMCA by Quest,
LabCorp, Bio-Reference, and other medical testing laboratories.
The common factual questions include: (1) AMCA's data security
practices and whether they met industry standards; (2) how the
unauthorized access occurred; (3) when defendants knew or should
have known of the breach; (4) the investigation into the breach;
and (5) the alleged delay in disclosure of the breach by all
defendants. Thus, although the actions on Schedule A are on behalf
of Quest patients, the Judge has have determined that the
centralized proceedings should include the potential tag-along
actions against LabCorp and Bio-Reference, and potentially actions
against other laboratories impacted by the AMCA data breach.
Centralization will eliminate duplicative discovery; prevent
inconsistent pretrial rulings, including with respect to class
certification; and conserve the resources of the parties, their
counsel, and the judiciary.
The Judge concludes that the District of New Jersey is an
appropriate transferee district. All defendants and plaintiffs in
over a dozen actions support this district, where four actions on
the motion and seven potential tag-along actions are pending.
Defendants Quest and Bio-Reference have their headquarters there,
and AMCA is located nearby in Elmsford, New York. Thus, common
documents and witnesses likely will be located in or near this
district. Judge Madeline Cox Arleo, who presides over six of the
pending actions, is an experienced transferee judge with the
ability and willingness to manage this litigation efficiently. The
Panel is confident she will steer this matter on a prudent course.
A full-text copy of the Court's July 31, 2019 Transfer Order is
available at https://is.gd/ELRYaQ
MISSOURI: Garrett's Bid to Intervene in Gasca Prisoners Suit Denied
-------------------------------------------------------------------
Judge Stephen R. Bough of the U.S. District Court for the Western
District of Missouri, Southern Division, denied Mason Garrett
Garrett's pro se motion to intervene in the case, STEPHANIE GASCA,
et al., on behalf of themselves and all similarly situated
individuals, Plaintiffs, v. ANNE PRECYTHE, Director of the
Missouri, Department of Corrections, et al., Defendants, Case No.
17-cv-04149-SRB (W.D. Mo.).
In his motion, Mr. Garrett represents that he is incarcerated, that
unconstitutional acts were committed against him, and that he would
like to proceed pro se in regards to his own pain and suffering
which differs from those who wish to involve him into a case that
he chooses to separate from. The Plaintiffs and the Defendants
interpret Mr. Garrett's motion as a motion to intervene as the
class representative and both parties oppose the motion.
The Plaintiffs in the class action lawsuit include all adult
parolees in the state of Missouri who currently face, or who in the
future will face, parole revocation proceedings. The Class Members
claim the parole revocation process run by the Missouri Department
of Corrections ("MDOC") and its Parole Board violates the due
process rights of people on parole. The violations alleged include
failing to provide notice of alleged parole violations and
revocation decisions and failing to screen for and provide
attorneys to parolees who have a right to an attorney. The Class
Members seek an order from the Court directing MDOC and the Parole
Board to change the way they conduct parole revocations, and to
comply with the Constitution.
The Counsel for the Class represents that she spoke over the phone
with Mr. Garrett on June 14, 2019, at which time Mr. Garrett
informed the Counsel that he is no longer on parole supervision.
Therefore, the Class Counsel maintains that Mr. Garrett is not a
Class Member.
Judge Bough holds that whether Mr. Garrett is a Class Member or
not, to the extent he has claims different from those of the class,
as he suggests, Mr. Garrett is free to file a separate complaint
with the Court. To the extent he seeks to intervene as the Class
Representative, even if he were a Class Member, the Judge would
deny Mr. Garrett's request because he does not suggest that the
current Class Representatives are not adequate representatives of
the class.
Further, Mr. Garrett asserts that his pain and suffering differs
from that of the Class Members. Although he does not describe his
claims with any specificity, his assertion that his "pain and
suffering" is unlike that of the Class Members suggests that he
does not have a claim or defense that shares with the main action a
common question of law or fact
For these reasons, Judge Bough denied Mr. Garrett's pro se motion
to intervene.
A full-text copy of the Court's June 28, 2019 Order is available at
https://is.gd/XcSViZ from Leagle.com.
Stephanie Gasca, Mildred Curren, Kenneth Hemphill, Jesse Neely,
Amber Wyse, Timothy Gallagher & Solomon Warren, Plaintiffs,
represented by Amy Elizabeth Breihan --
amy.breihan@macarthurjustice.org -- MacArthur Justice Center at
St.
Louis, Locke E. Bowman -- l-bowman@law.northwestern.edu --
Roderick
and Solange MacArthur Justice Center, pro hac vice, Megan G.
Crane,
pro hac vice & Sheila A. Bedi -- sheila.bedi@law.northwestern.edu
-- Roderick and Solange MacArthur Justice Center, pro hac vice.
Anne L. Precythe, in her official capacity, Director of the
Missouri Department of Corrections, Kenneth Jones, in his official
capacity, Chairman of the Missouri Division of Probation and
Parole, Jennifer Zamkus, in her official capacity, Vice Chair of
the Missouri Board of Probation and Parole, Jim Wells, in his
official capacity, Member of the Missouri Board of Probation and
Parole, Martin Rucker, in his official capacity, Member of the
Missouri Board of Probation and Parole, Ellis McSwain, Jr, in his
official capacity, Member of the Missouri Board of Probation and
Parole, Gary Dusenberg, in his official capacity, Member of the
Missouri Board of Probation and Parole & Paul Fitzwater, in his
official capacity, Member of the Missouri Board of Probation and
Parole, Defendants, represented by Doug Shull, Missouri Attorney
General's Office & Justin Moore, Missouri Attorney General's
Office.
NEWMONT GOLDCORP: Class Action in Canada Ongoing
------------------------------------------------
Newmont Goldcorp Corp said in its Form 10-Q Report filed with the
Securities and Exchange Commission on July 25, 2019, for the
quarterly period ended June 30, 2019, that the company continues to
defend a class action suit in Ontario Superior Court of Justice.
On October 28, 2016 and February 14, 2017, separate proposed class
actions were commenced in the Ontario Superior Court of Justice
pursuant to the Class Proceedings Act (Ontario) against the Company
and certain of its current and former officers.
Both statement of claims alleged common law negligent
misrepresentation in Goldcorp, Inc.'s public disclosure concerning
the Peñasquito mine and also pleaded an intention to seek leave
from the Court to proceed with an allegation of statutory
misrepresentation pursuant to the secondary market civil liability
provisions under the Securities Act (Ontario). By a consent order,
the latter lawsuit will proceed, and the former action has been
stayed.
The active lawsuit purports to be brought on behalf of persons who
acquired Goldcorp Inc.'s securities in the secondary market during
an alleged class period from October 30, 2014 to August 23, 2016.
Newmont said, "The Company intends to vigorously defend this
matter, but cannot reasonably predict the outcome."
Newmont Goldcorp Corp, formerly Newmont Mining Corporation,
incorporated on December 06, 2001, is a mining company, which is
focused on the production of and exploration of gold, copper,
silver, zinc and lead. The Company is primarily a gold producer
with operations and/or assets in the United States, Australia,
Peru, Ghana and Suriname. The Company's segments include North
America, South America, Asia Pacific and Africa. The company is
based in Greenwood Village, Colorado.
NORFOLK SOUTHERN: Continues to Defend Fuel Surcharge-Related Suit
-----------------------------------------------------------------
said in its Form 10-Q Report filed with the Securities and Exchange
Commission on July 24, 2019, for the quarterly period ended June
30, 2019, that the company continues to defend itself against a
consolidated lawsuit over fuel surcharges.
In 2007, various antitrust class actions filed against the company
and other Class I railroads in various Federal district courts
regarding fuel surcharges were consolidated in the District of
Columbia by the Judicial Panel on Multidistrict Litigation.
In 2012, the court certified the case as a class action.
The defendant railroads appealed this certification, and the Court
of Appeals for the District of Columbia vacated the District
Court's decision and remanded the case for further consideration.
On October 10, 2017, the District Court denied class certification;
the findings are subject to appeal.
Norfolk Southern said, "We believe the allegations in the
complaints are without merit and intend to vigorously defend the
cases. We do not believe the outcome of these proceedings will have
a material effect on our financial position, results of operations,
or liquidity."
No further updates were provided in the Company's SEC report.
Norfolk Southern Corporation, together with its subsidiaries,
engages in the rail transportation of raw materials, intermediate
products, and finished goods. Norfolk Southern Corporation was
founded in 1883 and is based in Norfolk, Virginia.
OHIO: Denial in Part of Bids to Dismiss Mann Suit Recommended
-------------------------------------------------------------
In the case, JEFFREY D. MANN, et al., Plaintiffs, v. OHIO
DEPARTMENT OF REHABILITATION AND CORRECTIONS, et al., Defendants,
Civil Action No. 2:18-cv-01565 (S.D. Ohio), Chief Magistrate Judge
Elizabeth A. Preston Deavers of the U.S. District Court for the
Southern District of Ohio, Eastern Division, recommended that (i)
Interested Party, the State of Ohio's Motion to Dismiss and the
Defendants' Motion to Dismiss be granted in part and denied in
part; and (ii) the Plaintiffs' Motion to Appoint Class Counsel and
the Plaintiffs' Motion to Certify Claims as a Class Action be
denied without prejudice.
The Plaintiffs, inmates at Grafton Correctional Institution who are
proceeding without the assistance of counsel, bring the action
under 42 U.S.C. Section 1983. They initiated the action by filing
Motions for Leave to Proceed in forma pauperis on Dec. 4, 2018.
Also on Dec. 4, 2018, they filed a Motion to Appoint Class Counsel
and a Motion to Certify Claims as a Class Action.
On Dec. 11, 2019, the Court granted the Plaintiffs' Motions for
Leave to Proceed in forma pauperis and filed their Complaint. They
bring civil rights claims under 42 U.S.C. Section 1983, asserting a
violation of their Eighth Amendment rights based on deliberate
indifference to serious medical needs relating to Hepatitis C.
The Plaintiffs allege that they all have been diagnosed with HCV
infections. Specifically, they allege that Plaintiff Mann was told
he would not be eligible for treatment until his APRI level reached
1.5, even though it was acknowledged that an APRI of over 1.5
indicated the later stages of the disease, with irreversible damage
to the liver and its functions with the stated reason for the delay
being the costs. The Plaintiffs allege that Plaintiff Bragg was
also denied treatment based on his APRI level. Finally, they
allege that Plaintiff Pastrano has been continually denied
treatment and is also denied periodic blood testing, which they
allege is required by Ohio policies and protocols.
The matter is before the Court for consideration of Interested
Party, the State of Ohio's Motion to Dismiss, Defendants Ohio
Department of Rehabilitation and Correction ("ODRC"), Andrew Eddy,
David Hannah, and Janice Douglas' ("Defendants") Motion to Dismiss,
the Plaintiffs' Response in Opposition, and the Defendants' Reply
in Support. The Defendants bring their motion to dismiss pursuant
to Rule 12(b)(6) of the Federal Rules of Civil Procedure, alleging
that the Plaintiffs have failed to state a claim upon which relief
can be granted.
Interested Party, State of Ohio, and the Defendants argue that the
Plaintiffs' claims against the ODRC are barred by the Eleventh
Amendment and 42 U.S.C. Section 1983. Magistrate Judge Deavers
finds that because Ohio has not waived its sovereign immunity in
federal court, it is entitled to Eleventh Amendment immunity from
suit for monetary damages. Further, ODRC is not a "person" who can
be held liable under Section 1983. Accordingly, she recommends
that Interested Party, State of Ohio, and the Defendants' Motions
to Dismiss be granted with respect to Defendant ODRC and that
Defendant ODRC be terminated from the case
Interested Party, State of Ohio and the Defendants argue that the
Plaintiffs' claims against Defendants Andrew Eddy and David Hannah
(now Defendant Grafton Corr. Inst. Health Care Administrator or
"Defendant GCIHCA") must be dismissed because they fall under the
doctrine of respondeat superior. The Magistrate finds that when
indulging all reasonable inferences in favor of the Plaintiffs and
taking these wellpleaded facts as true, the Plaintiffs' Complaint
establishes that Defendants Eddy and GCIHCA at least implicitly
authorized, approved, or knowingly acquiesced in providing medical
care, or the lack thereof, to the Plaintiffs. Accordingly, under
the limited circumstances of this particular case, the Magistrate
recommends that Interested Party, State of Ohio, and the
Defendants' Motions to Dismiss be denied on respondeat superior
grounds.
Interested Party, State of Ohio and the Defendants argue that the
Plaintiffs fail to state a claim under Section 1983 because the
facts the Plaintiffs allege are insufficient to state a claim for
medical deliberate indifference. In reviewing the Plaintiffs'
allegations, the Magistrate concludes that the Plaintiffs
sufficiently state a claim for medical deliberate indifference with
respect to these Defendants at this stage of the litigation.
Furthermore, multiple cases in federal court involve prisoner
plaintiffs who allege deliberate indifference to their serious
medical needs related to Hepatitis C. A review of these cases
reveals that, while the law has evolved on the issue, the
Magistrate concludes that dismissing the Plaintiffs' deliberate
indifference claims at the pleading stage would be improper.
Accordingly, she recommends that Interested Party, State of Ohio
and the Defendants' Motions to Dismiss be denied as to the
Plaintiffs' claims for medical deliberate indifference.
For the reasons stated, Magistrate Judge Deavers recommended that
(i) Interested Party, the State of Ohio's Motion to Dismiss and the
Defendants' Motion to Dismiss be granted in part and denied in
part. Specifically, she recommended that the Motions to Dismiss be
granted with respect to Defendant ODRC, but denied on all other
grounds. Furthermore, she also recommended that the Plaintiffs'
Motion to Appoint Class Counsel and the Plaintiffs' Motion to
Certify Claims as a Class Action be denied without prejudice so
that the Plaintiffs may re-file the two Motions once the Court has
completed its consideration of the remaining Motions to Dismiss.
If any party seeks review by the District Judge of the Report and
Recommendation, that party may, within 14 days, file and serve on
all parties objections to the Report and Recommendation,
specifically designating the Report and Recommendation, and the
part in question, as well as the basis for objection. Response to
objections must be filed within 14 days after being served with a
copy.
The parties are specifically advised that the failure to object to
the Report and Recommendation will result in a waiver of the right
to de novo review by the District Judge and waiver of the right to
appeal the judgment of the District Court. Even when timely
objections are filed, appellate review of issues not raised in
those objections is waived.
A full-text copy of the Court's June 26, 2019 Report and
Recommendation is available at https://is.gd/WMrM0D from
Leagle.com.
State of Ohio, Interested Party, represented by Mindy Ann Worly,
Ohio Attorney General's Office Criminal Justice Section.
Jeffrey D. Mann, Plaintiff, pro se.
John T. Bragg, Plaintiff, pro se.
Eric Pastrano, Plaintiff, pro se.
Ohio Department of Rehabilitation and Corrections, Dr. Andrew Eddy,
Mona Parks, Dr. Janice Douglas & Annette Chambers-Smith,
Defendants, represented by Mindy Ann Worly, Ohio Attorney General's
Office Criminal Justice Section.
OLIN CORP: Tripp Plating Alleges Price-Fixing of Caustic Soda
-------------------------------------------------------------
THE TRIPP PLATING WORKS, INC., On Behalf of Itself and All Others
Similarly Situated, the Plaintiff, vs. OLIN CORPORATION; K.A. STEEL
CHEMICALS, INC.; OCCIDENTAL PETROLEUM CORPORATION; OCCIDENTAL
CHEMICAL CORPORATION (D/B/A OXYCHEM); WESTLAKE CHEMICAL
CORPORATION; SHIN-ETSU CHEMICAL CO. LTD.; SHINTECH INCORPORATED;
FORMOSA PLASTICS CORPORATION; and FORMOSA PLASTICS CORPORATION,
U.S.A., the Defendants, Case No. 1:19-cv-00975 (W.D.N.Y., July 25,
2019), seeks to recover damages and injunctive relief under the
antitrust laws of various states of the United States against
Defendants.
The civil antitrust action seeks damages and injunctive relief
arising out of the collusive and concerted restraint of trade in
sodium hydroxide, commonly known as Caustic Soda, by the Defendants
-- all of whom are direct competitors and leading manufacturers of
Caustic Soda in the United States -- during a period spanning from
at least October 1, 2015, to the present.
But for Defendants' and their co-conspirators' collusive conduct as
alleged herein, Plaintiff and members of the class Plaintiff seeks
to represent would not have paid -- and would not continue to
pay—artificially inflated prices for Caustic Soda.
Caustic Soda is a commodity chemical sold in solid and liquid forms
that is produced as a co-product of chlorine production from the
electrolysis of brine or salt water. Caustic Soda is used by
customers in a variety of industries, including paper, pulp and
cellulose; chemical production; soaps and detergents; aluminum;
food processing; water treatment; textiles; mineral oils;
recycling; and pharmaceuticals. Defendants are estimated to control
at least 90% of the domestic supply of Caustic Soda.
From approximately 2012 until the fourth quarter of 2015, Caustic
Soda prices were either declining or flat, and industry margins
were poor, given industry overcapacity and
flat demand. These conditions motivated the Defendants to conspire
and combine to restrict domestic supply; to fix, raise, maintain,
and stabilize the price at which Caustic Soda was and continues to
be sold; and to allocate customers in violation of Section 1 of the
Sherman Act. Beginning in the fourth quarter of 2015, the
Defendants announced Caustic Soda price increases in a coordinated
fashion and began increasing Caustic Soda prices despite sluggish
demand, stable or declining costs, and excess capacity. They also
at times refused to supply customers, put them on allocation, or
refused to bid on contracts while falsely claiming supply was tight
or scarce. Defendants' market shares have been relatively stable
since 2015, with customer turnover lower in the years since the
fourth quarter of 2015 than before that quarter. In sum, Defendants
entered into an agreement or understanding to increase prices of
Caustic Soda and not to compete on price for the business of each
other's customers, the lawsuit says.
The Plaintiff and the other members of the Class have been injured
and have suffered damages, and they continue to suffer such
injuries as a direct and proximate result of Defendants'
actions.[BN]
Attorneys for the Plaintiff are:
Barbara Hart, Esq.
LOWEY DANNENBERG, P.C.
44 South Broadway, Suite 1100
White Plains, NY 10601
Telephone: 914-997-0500
E-mail: Bhart@lowey.com
- and -
Ryan L. Gellman, Esq.
COLUCCI & GALLAHER, P.C.
2000 Liberty Building
424 Main Street
Buffalo, NY 14202
Telephone: 716-853-4080
E-mail: rlg@cgbuffalo.com
ON QUE STYLE LLC: Reid Sues over ADA Violations
-----------------------------------------------
A class action complaint has been filed against On Que Style LLC
for alleged violations of the Americans with Disabilities Act of
1990 (ADA). The case is captioned Valentin Reid, on behalf of
himself and all others similarly situated, Plaintiff, vs. On Que
Style L.L.C., Defendant, Case No. 1:19-cv-06551-DAB (S.D.N.Y., July
15, 2019). This civil rights-related lawsuit is assigned to Hon.
Judge Deborah A. Batts.
On Que Style L.L.C is a premier designer resale and consignment
company based in Orange County, California. Its boutique sells
luxury designer apparel, handbags, shoes and accessories. It also
sells these products online throughout the United States. [BN]
The Plaintiff is represented by:
David Paul Force, Esq.
STEIN SAKS, PLLC
285 Passaic Street
Hackensack, NJ 07601
Telephone: (201) 282-6500
E-mail: dforce@steinsakslegal.com
PERSONALIZED BEAUTY DISCOVERY: Reid Sues over ADA Violations
------------------------------------------------------------
A class action complaint has been filed against Personalized Beauty
Discovery, Inc. for alleged violations of the Americans with
Disabilities Act of 1990 (ADA). The case is captioned Valentin
Reid, on behalf of himself and all others similarly situated,
Plaintiff, vs. Personalized Beauty Discovery, Inc., Defendant, Case
No. 1:19-cv-06547-PGG-BCM (S.D.N.Y., July 15, 2019). This civil
rights-related lawsuit is assigned to Hon. Judge Paul G. Gardephe.
Based in San Mateo, California, Personalized Beauty Discovery, Inc.
runs an online community for women to express their beauty. The
company offers ipsy, a social networking service that allows the
users to share their personal beauty ideas and products with
others. [BN]
The Plaintiff is represented by:
David Paul Force, Esq.
STEIN SAKS, PLLC
285 Passaic Street
Hackensack, NJ 07601
Telephone: (201) 282-6500
E-mail: dforce@steinsakslegal.com
PHILIP MORRIS: ADESF Class Suit in Brazil vs. Unit Still Ongoing
----------------------------------------------------------------
Philip Morris International Inc. said in its Form 10-Q Report filed
with the Securities and Exchange Commission on July 25, 2019, for
the quarterly period ended June 30, 2019, that the company
continues to defend a class action suit in Brazil entitled, The
Smoker Health Defense Association (ADESF) v. Souza Cruz, S.A. and
Philip Morris Marketing, S.A.
In a class action pending in Brazil, The Smoker Health Defense
Association (ADESF) v. Souza Cruz, S.A. and Philip Morris
Marketing, S.A., Nineteenth Lower Civil Court of the Central Courts
of the Judiciary District of Sao Paulo, Brazil, filed July 25,
1995, the company's subsidiary and another member of the industry
are defendants.
The plaintiff, a consumer organization, is seeking damages for all
addicted smokers and former smokers, and injunctive relief.
In 2004, the trial court found defendants liable without hearing
evidence and awarded "moral damages" of R$1,000 (approximately
$267) per smoker per full year of smoking plus interest at the rate
of 1% per month, as of the date of the ruling.
The court did not award actual damages, which were to be assessed
in the second phase of the case. The size of the class was not
estimated.
Defendants appealed to the Sao Paulo Court of Appeals, which
annulled the ruling in November 2008, finding that the trial court
had inappropriately ruled without hearing evidence and returned the
case to the trial court for further proceedings. In May 2011, the
trial court dismissed the claim.
In February 2015, the appellate court unanimously dismissed
plaintiff's appeal. In September 2015, plaintiff appealed to the
Superior Court of Justice. In February 2017, the Chief Justice of
the Superior Court of Justice denied plaintiff's appeal.
In March 2017, plaintiff filed an en banc appeal to the Superior
Court of Justice. In addition, the defendants filed a
constitutional appeal to the Federal Supreme Tribunal on the basis
that plaintiff did not have standing to bring the lawsuit. Both
appeals are still pending.
No further updates were provided in the Company's SEC report.
Philip Morris International Inc., through its subsidiaries,
manufactures and sells cigarettes, other nicotine-containing
products, and smoke-free products and related electronic devices
and accessories. The company was incorporated in 1987 and is
headquartered in New York, New York.
PHILIP MORRIS: Class Certification Bid in Ringer Suit Underway
--------------------------------------------------------------
Philip Morris International Inc. said in its Form 10-Q Report filed
with the Securities and Exchange Commission on July 25, 2019, for
the quarterly period ended June 30, 2019, that closing arguments
regarding the class certification bid in the case, Aharon Ringer v.
Philip Morris Ltd. and Globrands Ltd., are scheduled for September
2019.
An individual plaintiff filed a purported class action
certification motion, Aharon Ringer v. Philip Morris Ltd. and
Globrands Ltd., on July 18, 2017, in the Central District Court of
Israel.
The company's Israeli affiliate and an Israeli importer and
distributor for other multinational tobacco companies are
defendants.
Plaintiff seeks to represent a class of smokers in Israel who have
purchased cigarettes imported by defendants since July 18, 2010.
Plaintiff estimates the class size to be 7,000,000 smokers.
Plaintiff alleges that defendants misled consumers by not
disclosing sufficient information about carbon monoxide, tar, and
nicotine yields of, and tobacco contained in, the imported
cigarettes.
Plaintiff seeks various forms of relief, including an order for
defendants to label cigarette packs in accordance with plaintiff's
demands, and damages for misleading consumers, breach of autonomy
and unjust enrichment. Closing arguments regarding class
certification are scheduled for September 2019.
Philip Morris International Inc., through its subsidiaries,
manufactures and sells cigarettes, other nicotine-containing
products, and smoke-free products and related electronic devices
and accessories. The company was incorporated in 1987 and is
headquartered in New York, New York.
PHILIP MORRIS: Court Narrows Decision in Letourneau Class Suit
--------------------------------------------------------------
Philip Morris International Inc. said in its Form 10-Q Report filed
with the Securities and Exchange Commission on July 25, 2019, for
the quarterly period ended June 30, 2019, that a Court of Appeal in
Canada has issued a decision largely affirming the trial court's
findings of liability and the total amount of punitive damages
awarded allocating CAD 57 million including interest (approximately
$43.6 million) to Rothmans, Benson & Hedges Inc. (RBH).
In a class action pending in Canada, Cecilia Letourneau v. Imperial
Tobacco Ltd., Rothmans, Benson & Hedges Inc. (RBH) and
JTI-Macdonald Corp., Quebec Superior Court, Canada, filed in
September 1998, RBH and other Canadian manufacturers (Imperial
Tobacco Canada Ltd. and JTI-Macdonald Corp.) are defendants.
The plaintiff, an individual smoker, sought compensatory and
punitive damages for each member of the class who is deemed
addicted to smoking.
The class was certified in 2005. The trial court issued its
judgment on May 27, 2015.
The trial court found RBH and two other Canadian manufacturers
liable and awarded a total of CAD 131 million (approximately $100.1
million) in punitive damages, allocating CAD 46 million
(approximately $35.2 million) to RBH.
The trial court estimated the size of the addiction class at
918,000 members but declined to award compensatory damages to the
addiction class because the evidence did not establish the claims
with sufficient accuracy. The trial court found that a claims
process to allocate the awarded punitive damages to individual
class members would be too expensive and difficult to administer.
On March 1, 2019, the Court of Appeal issued a decision largely
affirming the trial court's findings of liability and the total
amount of punitive damages awarded allocating CAD 57 million
including interest (approximately $43.6 million) to RBH.
RBH and PMI believe the findings of liability and damages in both
Letourneau and the Blais cases were incorrect and in contravention
of applicable law on several grounds including the following: (i)
defendants had no obligation to warn class members who knew, or
should have known, of the risks of smoking; (ii) defendants cannot
be liable to class members who would have smoked regardless of what
warnings were given; and (iii) defendants cannot be liable to all
class members given the individual differences between class
members.
Philip Morris International Inc., through its subsidiaries,
manufactures and sells cigarettes, other nicotine-containing
products, and smoke-free products and related electronic devices
and accessories. The company was incorporated in 1987 and is
headquartered in New York, New York.
PHILIP MORRIS: Court of Appeals Narrows Decision in Blais Suit
--------------------------------------------------------------
Philip Morris International Inc. said in its Form 10-Q Report filed
with the Securities and Exchange Commission on July 25, 2019, for
the quarterly period ended June 30, 2019, that a Court of Appeal in
Canada has issued a decision largely affirming the trial court's
findings of liability and the compensatory and punitive damages
award while reducing the total amount of compensatory damages to
approximately CAD 13.5 billion including interest (approximately
$10.3 billion) due to the trial court's error in the calculation of
interest.
In a class action pending in Canada, Conseil Quebecois Sur Le Tabac
Et La Sante and Jean-Yves Blais v. Imperial Tobacco Ltd., Rothmans,
Benson & Hedges Inc. and JTI-Macdonald Corp., Quebec Superior
Court, Canada, filed in November 1998, Rothmans, Benson & Hedges
Inc. (RBH) and other Canadian manufacturers (Imperial Tobacco
Canada Ltd. and JTI-Macdonald Corp.) are defendants.
The plaintiffs, an anti-smoking organization and an individual
smoker, sought compensatory and punitive damages for each member of
the class who allegedly suffers from certain smoking-related
diseases. The class was certified in 2005. The trial court issued
its judgment on May 27, 2015.
The trial court found RBH and two other Canadian manufacturers
liable and found that the class members' compensatory damages
totaled approximately CAD 15.5 billion, including pre-judgment
interest (approximately $11.8 billion). The trial court awarded
compensatory damages on a joint and several liability basis,
allocating 20% to our subsidiary (approximately CAD 3.1 billion,
including pre-judgment interest (approximately $2.37 billion)).
In addition, the trial court awarded CAD 90,000 (approximately
$68,780) in punitive damages, allocating CAD 30,000 (approximately
$22,930) to RBH. The trial court estimated the disease class at
99,957 members. RBH appealed to the Court of Appeal of Quebec.
In October 2015, the Court of Appeal ordered RBH to furnish
security totaling CAD 226 million (approximately $172.7 million) to
cover both the Letourneau and Blais cases, which RBH has paid in
installments through March 2017.
The Court of Appeal ordered Imperial Tobacco Canada Ltd. to furnish
security totaling CAD 758 million (approximately $579.3 million) in
installments through June 2017.
JTI Macdonald Corp. was not required to furnish security in
accordance with plaintiffs' motion. The Court of Appeal ordered
that the security is payable upon a final judgment of the Court of
Appeal affirming the trial court's judgment or upon further order
of the Court of Appeal.
On March 1, 2019, the Court of Appeal issued a decision largely
affirming the trial court's findings of liability and the
compensatory and punitive damages award while reducing the total
amount of compensatory damages to approximately CAD 13.5 billion
including interest (approximately $10.3 billion) due to the trial
court's error in the calculation of interest.
The compensatory damages award is on a joint and several basis with
an allocation of 20% to RBH (approximately CAD 2.7 billion,
including pre-judgment interest (approximately $2.06 billion)).
The Court of Appeal upheld the trial court's findings that
defendants violated the Civil Code of Quebec, the Quebec Charter of
Human Rights and Freedoms, and the Quebec Consumer Protection Act
by failing to warn adequately of the dangers of smoking and by
conspiring to prevent consumers from learning of the dangers of
smoking.
The Court of Appeal further held that the plaintiffs either need
not prove, or had adequately proven, that these faults were a cause
of the class members' injuries.
In accordance with the judgment, defendants are required to deposit
their respective portions of the damages awarded in both the
Letourneau case and the Blais case, approximately CAD 1.1 billion
(approximately $840.7 million), into trust accounts within 60 days.
RBH's share of the deposit is approximately CAD 257 million
(approximately $196.4 million). PMI recorded a pre-tax charge of
$194 million in its consolidated results, representing $142 million
net of tax, as tobacco litigation-related expense, in the first
quarter of 2019.
The charge reflects PMI's assessment of the portion of the judgment
that represents probable and estimable loss prior to the
deconsolidation of RBH and corresponds to the trust account deposit
required by the judgment.
Philip Morris International Inc., through its subsidiaries,
manufactures and sells cigarettes, other nicotine-containing
products, and smoke-free products and related electronic devices
and accessories. The company was incorporated in 1987 and is
headquartered in New York, New York.
PHILIP MORRIS: Natan Suit Against Unit Dismissed
------------------------------------------------
Philip Morris International Inc. said in its Form 10-Q Report filed
with the Securities and Exchange Commission on July 25, 2019, for
the quarterly period ended June 30, 2019, that the trial court has
dismissed the case, Adir Natan vs. Philip Morris Ltd., with
prejudice.
In Israel, an individual filed a purported class action
certification motion, Adir Natan vs. Philip Morris Ltd., in June
2017 against the company's subsidiary with the Israeli District
Court of Haifa related to the marketing of our Platform 1 product.
In May 2019, plaintiff voluntarily withdrew the class certification
motion, and the trial court dismissed the case with prejudice.
Philip Morris International Inc., through its subsidiaries,
manufactures and sells cigarettes, other nicotine-containing
products, and smoke-free products and related electronic devices
and accessories. The company was incorporated in 1987 and is
headquartered in New York, New York.
PHILIP MORRIS: Still Defends Securities Litigation in New York
--------------------------------------------------------------
Philip Morris International Inc. said in its Form 10-Q Report filed
with the Securities and Exchange Commission on July 25, 2019, for
the quarterly period ended June 30, 2019, that the company
continues to defend a putative shareholder class action suit
entitled, In re Philip Morris International Inc. Securities
Litigation.
A putative shareholder class action lawsuit, In re Philip Morris
International Inc. Securities Litigation, is pending in the United
States District Court for the Southern District of New York,
purportedly on behalf of purchasers of Philip Morris International
Inc. stock between July 26, 2016 and April 18, 2018.
The lawsuit names Philip Morris International Inc. and certain
officers and employees as defendants and includes allegations that
the defendants made false and/or misleading statements and/or
failed to disclose information about PMI's business, operations,
financial condition, and prospects, related to product sales of,
and alleged irregularities in clinical studies of, PMI's Platform 1
product.
The lawsuit seeks various forms of relief, including damages.
In November, 2018, the court consolidated three putative
shareholder class action lawsuits with similar allegations
previously filed in the Southern District of New York (namely, City
of Westland Police and Fire Retirement System v. Philip Morris
International Inc., et al, Greater Pennsylvania Carpenters' Pension
Fund v. Philip Morris International Inc., et al., and Gilchrist v.
Philip Morris International Inc., et al.) into these proceedings.
A putative shareholder class action lawsuit, Rubenstahl v. Philip
Morris International Inc., et al., that had been previously filed
in December, 2017 in the United States District Court for the
District of New Jersey, was voluntarily dismissed by the plaintiff
due to similar allegations in these proceedings.
Philip Morris said, "We believe that this lawsuit is without merit
and intend to defend it vigorously."
Philip Morris International Inc., through its subsidiaries,
manufactures and sells cigarettes, other nicotine-containing
products, and smoke-free products and related electronic devices
and accessories. The company was incorporated in 1987 and is
headquartered in New York, New York.
PHILIP MORRIS: Subsidiaries Face Rebolledo Suit in Columbia
-----------------------------------------------------------
Philip Morris International Inc. said in its Form 10-Q Report filed
with the Securities and Exchange Commission on July 25, 2019, for
the quarterly period ended June 30, 2019, that the company's
subsidiaries faces a purported class action suit in Columbia
entitled, Ana Ferrero Rebolledo vs. Philip Morris Colombia S.A., et
al.
An individual filed a purported class action, Ana Ferrero Rebolledo
vs. Philip Morris Colombia S.A., et al., in April 2019 against the
company's subsidiaries with the Civil Court of Bogota related to
the marketing of the company's Platform 1 product.
Plaintiff alleges that the company's subsidiaries advertise the
product in contravention of law and in a manner that misleads
consumers by portraying the product in a positive light, and
further asserts that the Platform 1 vapor contains many toxic
compounds, creates a high level of dependence, and has damaging
second-hand effects.
Plaintiff seeks injunctive relief and damages on her behalf and on
a behalf of two classes (class 1 - all Platform 1 consumers in
Colombia who seek damages for the purchase price of the product and
personal injuries related to the alleged addiction, and class 2 -
all residents of the neighborhood where the advertising allegedly
took place who seek damages for exposure to the alleged illegal
advertising).
Philip Morris said, "Our subsidiaries have not been served with the
complaint."
Philip Morris International Inc., through its subsidiaries,
manufactures and sells cigarettes, other nicotine-containing
products, and smoke-free products and related electronic devices
and accessories. The company was incorporated in 1987 and is
headquartered in New York, New York.
PNC BANK: Scott Sues over Collateral Protection Insurance
---------------------------------------------------------
LARRY E. SCOTT, JR., individually and on behalf of all others
similarly situated, the Plaintiff, vs. PNC BANK, NATIONAL
ASSOCIATION and PNC FINANCIAL SERVICES GROUP, INC., the Defendants,
Case No. 2:19-cv-00903-LPL (W.D. Pa., July 25, 2019), alleges that
PNC Bank violated the Truth in Lending Act, by:
-- adversely changing the terms of automotive loans after
origination without consent and altering the terms of the loan to
include insurance in amounts greater than necessary to protect its
interest in property; and
-- failing to provide proper notice, after origination, that
PNC Bank was amending the terms of loans as described in the
relevant automotive loan documents.
In March 2013, the Plaintiff purchased a new vehicle via a Retail
Installment Sales Contract. The other party to the contract was
Myrtle Beach Chevrolet Cadillac in Myrtle Beach, South Carolina,
who later assigned the Contract to PNC Bank.
The Defendants were under a continuous duty to disclose to
Plaintiff and members of the class if CPI was purchased for their
vehicle and the associated cost that would be added to their
accounts.
The Plaintiff was never informed, as required by the Contract, that
PNC Bank had purchased Collateral Protection Insurance ("CPI"), nor
was he informed, as required by the Contract, of the cost of the
CPI or that it was added to his principal balance. As a result,
Plaintiff unknowingly paid PNC Bank for the cost of the CPI and a
related finance charge over the life of his Contract. PNC Bank
purchased the CPI from State National Insurance
The Defendants concealed the unwarranted purchase of CPI and the
subsequent charges to Plaintiff's and class members' accounts by
failing to provide contractually-required notice, and Plaintiff and
class members reasonably relied upon this concealment.
Due to Defendants' concealment, Plaintiff and class members could
not have discovered, through the exercise of reasonable diligence,
the true nature of Defendants' unlawful conduct and unwarranted
charges to their accounts.
Despite the fact that Plaintiff provided proof that he had
maintained the required insurance on the Vehicle throughout the
life of the Contract, these communications proved to be fruitless
as both PNC Bank and SNIC informed Plaintiff that the CPI premium
($4,139.00) added to Plaintiff's principal loan balance on July 10,
2013, and the related finance charges would not be refunded.
PNC Bank had no right under the Contract to force-place insurance
on the Vehicle, because, as previously noted, Plaintiff fully
complied with his obligation to maintain physical damage insurance
coverage for the Vehicle.
Furthermore, by providing contact information for his insurance
agent as stated above, PNC Bank knew or should have known that
Plaintiff maintained the requisite insurance on the Vehicle and
that force-placing insurance on the Vehicle was unwarranted.
PNC Bank is a Pennsylvania corporation and citizen with its
principal place of business in Pittsburgh, Pennsylvania. PNC Bank
is a subsidiary of Defendant PNC Financial.[BN]
Attorneys for the Plaintiff are:
Gary F. Lynch, Esq.
Matthew D. Brady, Esq.
CARLSON LYNCH LLP
1133 Penn Avenue, 5 th Floor
Pittsburgh, PA 15222
Telephone: 412-322-9243
Facsimile: 412-231-0246
E-Mail: glynch@carlsonlynch.com
mbrady@carlsonlynch.com
- and -
T. Christopher Tuck, Esq.
Robert S. Wood, Esq.
T.A.C. Hargrove, II, Esq.
RICHARDSON, PATRICK,
WESTBROOK & BRICKMAN, L.L.C.
1037 Chuck Dawley Blvd., Bldg. A
Mount Pleasant, SC 29464
Telephone: 843.727.6500
Facsimile: 843.216.6509
E-mail: ctuck@rpwb.com
bwood@rpwb.com
thargrove@rpwb.com
POP WARNER: Archie, et al. Seek to Certify Class
------------------------------------------------
In the case, KIMBERLY ARCHIE, et al, the Plaintiffs, vs. POP WARNER
LITTLE SCHOLARS INC., a non-profit corporation; and DOES 1 through
50, inclusive, the Defendants, Case No. 2:16-cv-06603-PSG-PLA (C.D.
Cal., Filed Sep. 1, 2016), the Plaintiffs ask the Court to certify
a class consisting of:
"all persons who enrolled their minor children Pop Warner
tackle football from 1997 to present".
Excluded from the Class are governmental entities, the
Defendants, any entity in which Defendants have controlling
interest, and Defendants' officers, directors, affiliates,
legal representative, employees, successors, subsidiaries,
and assigns, as well as any judge, justice officer presiding
over this matter and the members of their immediate family
and judicial staff.
The case is about the safety of millions of children in America.
Every year, hundreds of thousands of children across the United
States sign up and compete in the Pop Warner Youth Tackel Football
program.[CC]
Attorneys for the Plaintiffs are:
Boris Treyzon, Esq.
Slav Kasreliovich, Esq.
Joseph Finnerty, Esq.
Michael Kelly, Esq.
ABIR COHEN TREYZON SALO, LLP
16001 Ventura Blvd., Suite 200
Encino, CA 91436
Telephone: (424) 288 4367
Facsimile: (424) 288 4368
E-mail: btreyzon@actslaw.com
skasreliovich@actslaw.com
jfinnerty@actslaw.com
mkelly@actslaw.com
PRINTPACK INC: Baker Seeks Unpaid Wages Under FLSA
--------------------------------------------------
DANA BAKER, Individually, and on behalf of himself and others
similarly situated, Plaintiff, v. PRINTPACK, INC., a Georgia
Corporation, Defendant, Case No. 1:19-cv-01155 (W.D. Tenn., July
31, 2019) is a collective action for violations of the Fair Labor
Standards Act brought against Printpack, Inc. on behalf of all
current and former non-exempt hourly-paid employees.
The complaint asserts that the Defendant had a common timekeeping
"rounding-off" policy that benefitted Defendant but did not equally
benefit Plaintiff and similarly situated hourly-paid employees. The
Defendant's policy was to pay hourly-paid workers only for the
scheduled time of their shifts, regardless of whether or not they
were required to perform work prior to or after their scheduled
shift times. The aforementioned unpaid "edited-out/shaved" time of
Plaintiff and similarly situated hourly-paid employees was not
recorded into Defendant's centralized timekeeping system, during
all times relevant. By its failure to record accurately all the
time worked by Plaintiff and class members (during all times
relevant), Defendant willfully failed to compensate them for all
such time at the applicable straight time and overtime rates of
pay, as required by the FLSA.
As a result, Plaintiff and class members suffered lost wages in
terms of lost straight time and overtime compensation as well as
other damages, says the complaint.
Plaintiff Dana Baker was employed by and performed work for
Defendant as an hourly-paid employee at Defendant's Jackson,
Tennessee facilities.
Defendant Printpack, Inc. is a flexible and rigid packaging company
specializing in the food, beverage, pharmaceutical and agricultural
industries, according to the information on its website.[BN]
The Plaintiff is represented by:
J. Russ Bryant, Esq.
Robert E. Turner IV, Esq.
Nathaniel A. Bishop, Esq.
Robert E. Morelli, III, Esq.
JACKSON, SHIELDS, YEISER & HOLT
262 German Oak Drive
Memphis, TN 38018
Phone: (901) 754-8001
Fax: (901) 759-1745
Email: gjackson@jsyc.com
rbryant@jsyc.com
rturner@jsyc.com
rmorelli@jsyc.com
PRO CUSTOM SOLAR: Becker Suit Asserts TCPA Violation
----------------------------------------------------
PERRY BECKER, individually and on behalf of all others similarly
situated, Plaintiff, v. PRO CUSTOM SOLAR LLC D/B/A MOMENTUM SOLAR,
Defendant, Case No. 2:19-cv-00535 (M.D. Fla., July 31, 2019) is a
putative class action under the Telephone Consumer Protection Act
("TCPA"), arising from Defendant's knowing and willful violations
of the TCPA.
As part of its marketing strategy, Defendant utilizes automatic
telephone dialing systems to place calls to unsuspecting consumers
on their cellular telephones to sell services and goods. The
Defendant caused thousands of calls to be placed to the cellular
telephones of Plaintiff and Class Members, causing them injuries,
including invasion of their privacy, aggravation, annoyance,
intrusion on seclusion, trespass, and conversion. Through this
action, Plaintiff seeks injunctive relief to halt Defendant's
illegal conduct. Plaintiff also seeks statutory damages on behalf
of himself and Class Members, and any other available legal or
equitable remedies resulting from the illegal actions of
Defendants.
Plaintiff is a natural person who was a resident of Charlotte
County, Florida.
Defendant is one of the fastest growing solar companies in the
nation employing over 1,200 people nationwide.[BN]
The Plaintiff is represented by:
Ignacio J. Hiraldo, Esq.
IJH LAW
1200 Brickell Ave. Suite 1950
Miami, FL 33131
Phone: 786.496.4469
Email: IJHiraldo@IJHlaw.com
- and -
Manuel S. Hiraldo, Esq.
HIRALDO P.A.
401 E. Las Olas Boulevard, Suite 1400
Ft. Lauderdale, FL 33301
Phone: 954.400.4713
Email: mhiraldo@hiraldolaw.com
- and -
Michael Eisenband, Esq.
EISENBAND LAW, P.A.
515 E. Las Olas Boulevard, Suite 120
Ft. Lauderdale, Fl 33301
Email: MEisenband@Eisenbandlaw.com
Phone: 954.533.4092
RAYTHEON COMPANY: Kendall Files Suit Over UTC Merger Deal
---------------------------------------------------------
MARION KENDALL, Individually and on Behalf of All Others Similarly
Situated, Plaintiff, v. RAYTHEON COMPANY, DR. THOMAS A. KENNEDY,
DR. WILLIAM R. SPIVEY, GEORGE R. OLIVER, DINESH C. PALIWAL, STEPHEN
J. HADLEY, ELLEN M. PAWLIKOWSKI, MARTA R. STEWART, ADRIANE M.
BROWN, ROBERT O. WORK, ROBERT E. BEAUCHAMP, TRACY A. ATKINSON,
JAMES A. WINNEFELD, JR., and LETITIA A. LONG, Defendants, Case No.
1:19-cv-01423-UNA (D. Del., July 30, 2019) is a class action
brought by Plaintiff on behalf of herself and the other public
holders of the common stock of Raytheon Company against the Company
and the members of the Company's board of directors for their
violations of Sections 14(a) and 20(a) of the Securities Exchange
Act of 1934, in connection with the proposed merger between
Raytheon and United Technologies Corporation ("UTC").
On June 9, 2019, the Board caused the Company to enter into an
agreement and plan of merger, pursuant to which the Company's
shareholders stand to receive 2.3348 shares of UTC common stock for
each share of Raytheon stock they own. Upon completion of the
merger, Raytheon shareholders will own approximately 43% and UTC
shareholders will own approximately 57% of the combined company.
On July 17, 2019, in order to convince Raytheon shareholders to
vote in favor of the Proposed Transaction, the Board authorized the
filing of a materially incomplete and misleading Form S-4
Registration Statement with the Securities and Exchange Commission,
in violation of the Exchange Act, says the complaint. The
materially incomplete and misleading S-4 violates both Regulation G
and SEC Rule 14a-9, each of which constitutes a violation of the
Exchange Act, it adds.
While touting the fairness of the Merger Consideration to the
Company's shareholders in the S-4, Defendants have failed to
disclose certain material information that is necessary for
shareholders to properly assess the fairness of the Proposed
Transaction. In particular, the S-4 contains materially incomplete
and misleading information concerning: (i) the financial
projections for the Company that were prepared by the Company and
relied on by Defendants in recommending that Raytheon shareholders
vote in favor of the Proposed Transaction; and (ii) the summary of
certain valuation analyses conducted by Raytheon's financial
advisors, Citigroup Global Markets Inc. ("Citi") and RBC Capital
Markets, LLC ("RBC") in support of their opinions that the Merger
Consideration is fair to shareholders, on which the Board relied.
It is imperative that the material information that has been
omitted from the S-4 is disclosed prior to the forthcoming vote to
allow the Company's shareholders to make an informed decision
regarding the Proposed Transaction, the complaint relates.
Plaintiff is a holder of Raytheon common stock.
Raytheon serves as a prime contractor or subcontractor for both
domestic and international customers primarily specializing in
defense and other government markets.[BN]
The Plaintiff is represented by:
Michael Van Gorder, Esq.
FARUQI & FARUQI, LLP
3828 Kennett Pike, Suite 201
Wilmington, DE 19807
Phone: (302) 482-3182
Email: mvangorder@faruqilaw.com
- and -
Nadeem Faruqi, Esq.
James M. Wilson, Jr., Esq.
FARUQI & FARUQI, LLP
685 Third Avenue, 26th Floor
New York, NY 10017
Phone: (212) 983-9330
Fax: (212) 983-9331
Email: nfaruqi@faruqilaw.com
jwilson@faruqilaw.com
SAILED, LLC: Reyna Seeks Minimum & OT Wages for Delivery Workers
----------------------------------------------------------------
GABRIEL TRINIDAD REYNA, individually and on behalf of others
similarly situated, the Plaintiff, vs. SAILED, LLC (D/B/A
FRIENDLY'S PIZZERIA), ARTURO FLORES , and GERARDA ROSAS, the
Defendants, Case No. 1:19-cv-06969 (S.D.N.Y., July 25, 2019), seeks
to recover unpaid minimum and overtime wages pursuant to the Fair
Labor Standards Act of 1938 and the New York Labor Law.
The Plaintiff was employed as a delivery worker. However, he was
required to spend a considerable part of his work day performing
non-tipped duties, including but not limited to mopping, taking out
trash, filling food stations, storing products for deliveries,
cleaning the storage, cleaning the refrigerators and folding card
boxes (the "non-tipped
duties").
The Plaintiff worked for Defendants in excess of 40 hours per week,
without appropriate minimum wage and overtime compensation for the
hours that he worked.
Rather, the Defendants failed to maintain accurate record-keeping
of the hours worked and failed to pay Plaintiff Trinidad
appropriately for any hours worked, either at the straight rate of
pay or for any additional overtime premium, the lawsuit says.
The Defendants own, operate, or control a pizzeria, located at 59
Nassau Street, New York, NY 10038 under the name "Friendly's
Pizzeria".[BN]
Attorneys for the Plaintiff are:
Michael Faillace, Esq.
MICHAEL FAILLACE & ASSOCIATES P.C.
60 East 42nd Street, Suite 4510
New York, NY 10165
Telephone: (212) 317-1200
Facsimile: (212) 317-1620
E-mail: Faillace@employmentcompliance.com
SHANGHAI ORIGINAL: Second Circuit Appeal Initiated in Jin Suit
--------------------------------------------------------------
Plaintiffs Jianmin Jin and Chunyou Xie filed an appeal from the
District Court's opinion and order issued on July 10, 2019, in
their lawsuit titled Jin, et al. v. Shanghai Original, Inc., et
al., Case No. 16-cv-5633, in the U.S. District Court for the
Eastern District of New York (Brooklyn).
As previously reported in the Class Action Reporter, the two named
plaintiffs, along with nine opt-in plaintiffs, bring claims under
the Fair Labor Standards Act (FLSA) and New York Labor Law (NYLL)
for violations of state and federal minimum wage and overtime laws
by Joe's Shanghai restaurant, which has locations in Midtown
Manhattan, Chinatown, and Flushing, Queens. The named plaintiffs
both worked at the Flushing location, while the opt-in plaintiffs,
with one exception, worked in Midtown or Chinatown.
The appellate case is captioned as Jin, et al. v. Shanghai
Original, Inc., et al., Case No. 19-2170, in the United States
Court of Appeals for the Second Circuit.[BN]
Plaintiffs-Appellants Jianmin Jin, on behalf of themselves and
others similarly situated, and Chunyou Xie, on behalf of themselves
and others similarly situated, are represented by:
John Troy, Esq.
JOHN TROY & ASSOCIATES, PLLC
41-25 Kissena Boulevard
Flushing, NY 11355
Telephone: (718) 762-1324
E-mail: johntroy@troypllc.com
Defendants-Appellees Shanghai Original, Inc., DBA Joe's Shanghai;
East Brother Corp., DBA Joe's Shanghai; Shanghai Duplicate Corp,
DBA Joe's Shanghai; Kiu Sang Si, AKA Joseph Si; Yiu Fai Fong; and
Tun Yee Lam are represented by:
David B. Horowitz, Esq.
FONG & WONG, P.C.
254 Canal Street
New York, NY 10013
Telephone: (212) 966-6668
SIX FLAGS: Continues to Defend Suits Over Credit Card Info
----------------------------------------------------------
Six Flags Entertainment Corporation said in its Form 10-Q Report
filed with the Securities and Exchange Commission on July 24, 2019,
for the quarterly period ended June 30, 2019, that the company
continues to defend itself from four potential class action
complaint.
Complaints were filed on August 11, 2017 in the Circuit Court of
Lake County, Illinois, on September 1, 2017 in the United States
District Court for the Northern District of Georgia, on September
11, 2017 in the Superior Court of Los Angeles County, California,
and on November 30, 2017 in the Superior Court of Ocean County, New
Jersey.
The complaints allege that the company, in violation of federal
law, printed more than the last five digits of a credit or debit
card number on customers' receipts, and/or the expiration dates of
those cards.
A willful violation may subject a company to liability for actual
damages or statutory damages between $100 and $1,000 per person,
punitive damages in an amount determined by a court, and reasonable
attorneys' fees, all of which are sought by the plaintiffs. The
complaints do not allege that any information was misused.
Six Flags said, "We intend to vigorously defend ourselves against
this litigation. Since this litigation is in an early stage, the
outcome is currently not determinable, and a reasonable estimate of
loss or range of loss in excess of the immaterial amount that we
have recorded for this litigation cannot be made."
No further updates were provided in the Company's SEC report.
Six Flags Entertainment Corporation (Six Flags), incorporated on
December 9, 1997, is a regional theme park operator. The Company
operates in the theme parks segment. The Company operates
approximately 19 regional theme and water parks. Its parks occupy
approximately 4,500 acres of land. Its parks are located in
geographically diverse markets across North America. The company is
based in Grand Prairie, Texas.
SIX FLAGS: Suit over Collection of Biometric Data Ongoing
---------------------------------------------------------
Six Flags Entertainment Corporation said in its Form 10-Q Report
filed with the Securities and Exchange Commission on July 24, 2019,
for the quarterly period ended June 30, 2019, that the company
continues to defend a potential class action suit related to
Illinois Biometric Information Privacy Act ("BIPA").
On January 7, 2016, a potential class action complaint was filed
against Six Flags Entertainment Corporation in the Circuit Court of
Lake County, Illinois. On April 22, 2016, Great America, LLC was
added as a defendant.
The complaint asserts that the company violated the Illinois
Biometric Information Privacy Act ("BIPA") in connection with the
admission of season pass holders and members through the finger
scan program that commenced in the 2014 operating season at Six
Flags Great America in Gurnee, Illinois, and seeks statutory
damages, attorneys' fees and an injunction.
An aggrieved party under BIPA may recover (i) $1,000 if a company
is found to have negligently violated BIPA or (ii) $5,000 if a
company is found to have intentionally or recklessly violated BIPA,
plus reasonable attorneys’ fees in each case. The complaint does
not allege that any information was misused or disseminated.
On April 7, 2017, the trial court certified two questions for
consideration by the Illinois Appellate Court of the Second
District. On June 7, 2017, the Illinois Appellate Court granted the
company's motion to appeal. Accordingly, two questions regarding
the interpretation of BIPA were certified for consideration by the
Illinois Appellate Court.
On December 21, 2017, the Illinois Appellate Court found in
company's favor, holding that the plaintiff had to allege more than
a technical violation of BIPA and had to be injured in some way in
order to have a right of action. On March 1, 2018, the plaintiff
filed a petition for leave to appeal to the Illinois Supreme Court.
On May 30, 2018, the Illinois Supreme Court granted the plaintiff's
petition for leave to appeal and oral arguments were heard on
November 20, 2018.
On January 25, 2019, the Illinois Supreme Court found in favor of
the plaintiff, holding that the plaintiff does not need to allege
an actual injury beyond the violation of his rights under BIPA in
order to proceed with a complaint.
Six Flags saids, "We intend to continue to vigorously defend
ourselves against this litigation. Since this litigation is still
in an early stage, the outcome is currently not determinable and a
reasonable estimate of loss or range of loss in excess of the
immaterial amount that we have recorded for this litigation cannot
be made."
Six Flags Entertainment Corporation (Six Flags), incorporated on
December 9, 1997, is a regional theme park operator. The Company
operates in the theme parks segment. The Company operates
approximately 19 regional theme and water parks. Its parks occupy
approximately 4,500 acres of land. Its parks are located in
geographically diverse markets across North America. The company is
based in Grand Prairie, Texas.
SNAP INC: Continues to Defend Suits Over Initial Public Offering
----------------------------------------------------------------
Snap Inc. said in its Form 10-Q Report filed with the Securities
and Exchange Commission on July 24, 2019, for the quarterly period
ended June 30, 2019, that the company continues to defend itself
against class action suits related to its initial public offering
(IPO).
Beginning in May 2017, the company, certain of its officers and
directors, and the underwriters for its IPO were named as
defendants in securities class actions purportedly brought on
behalf of purchasers of the company's Class A common stock,
alleging violation of securities laws in connection with its IPO.
Management believes these lawsuits are without merit and intend to
vigorously defend them.
Snap said, "Based on the preliminary nature of the proceedings in
this case, the outcome of this matter remains uncertain."
No further updates were provided in the Company's SEC report.
Snap Inc. operates as a camera company in the United States and
internationally. The company offers Snapchat, a camera application
that helps people to communicate through short videos and images.
The company was formerly known as Snapchat, Inc. and changed its
name to Snap Inc. in September 2016. Snap Inc. was founded in 2010
and is headquartered in Santa Monica, California.
SPRINT/UNITED MANAGEMENT: $4MM Caudle Settlement Has Prelim OK
--------------------------------------------------------------
In the case, JOSHUA CAUDLE and KRYSTLE WHITE, individually and on
behalf of all others similarly situated, Plaintiffs, v.
SPRINT/UNITED MANAGEMENT COMPANY, a Kansas corporation; and DOES 1
through 100, Defendant, Case No. C 17-06874 WHA (N.D. Cal.), Judge
William Alsup of the U.S. District Court for the Northern District
of California granted the Plaintiffs' motion for preliminary
approval of a class settlement agreement.
Defendant Sprint sells mobile phone devices and services to retail
customers. In February 2016, Sprint instituted a redesigned
incentive compensation plan called the Sprint Promoter Score
Adjustment program, which remained in effect until March 2017. This
program allegedly made an unlawful factors outside the individual
employees' control and unrelated to the individual employees'
efforts regarding a particular sale or transaction.
Plaintiffs Caudle and White -- a former store manager and a former
lead retail consultant, respectively -- worked in various northern
California Sprint retail store locations. They brought the instant
action in November 2017, asserting various claims arising out of
the Sprint Promoter Score Adjustment program for alleged unlawful
deductions from employees' wages under California Labor Code
Sections 221-23.
An order dated Dec. 18, 2018, certified three classes relating to
the deductions made under the Sprint Promoter Score Adjustment
program. The first class was directly based on Sprint's policy at
issue (i.e., the Sprint Promoter Score Adjustment program). The
other two certified classes -- the wage statement and waiting time
classes -- are derivative of the first class. Both Joshua Caudle
and Krystle White were appointed as the class representatives.
Following class certification, the parties reached a settlement by
ultimately accepting a mediator's proposal. The net settlement
fund would be $4 million minus attorney's fees and costs, incentive
payments, administrative expenses, and payment to the Labor &
Workforce Development Agency ("LWDA") for civil penalties under the
Labor Code Private Attorneys General Act ("PAGA"), equaling to an
estimated $2.622 million.
The fund would be composed as follows.
1. Incentive Award: Caudle and White plan to request an
incentive award of $5,000 and $3,000, respectively, for a total of
$8,000. The settlement agreement, however, is not contingent on
approval of the incentive award.
2. Attorney's Fees and Costs: The Class counsel plan to
request an award of attorney's fees of $1 million and costs of
$50,000. Any unapproved portion of the request for fees and costs
would be added to the net settlement fund and distributed to the
class on a pro rata basis. The settlement agreement is not
contingent on the approval of the requested attorney's fees and
costs award.
3. PAGA Allocation: $300,000 would be paid to settle claims
for potential penalties under PAGA. In accordance with PAGA, 75%
of this amount ($225,000) would be paid to the California Labor and
Workforce Development Agency and 25% ($75,000) to the class members
as part of the pro rata distribution.
4. Administration Costs: $20,000 will be set aside from the
gross settlement to cover the cost of administering class notice.
Any unused amount would be added to the net settlement fund.
5. Allocation to the Class Members: Following the above
deductions, the net settlement fund amounts to $2.622 million. The
following distributions would be made with respect to the 2,290
class members:
a. Each class member would receive a 100% reimbursement
of all amounts deducted from their commissions under the Sprint
Promoter Score Adjustment program, plus interest.
b. The wage-statement class would receive $133,820.71
for wage-statement penalties, distributed pro rata to each member
based on their final hourly pay.
c. The waiting-time class would receive $1,204,386.38
for waiting-time penalties, distributed pro rata to each member
based on the number of months between September 2016 and March 2017
that they incurred the deductions at issue.
d. Class members would receive $75,000 in PAGA civil
penalties, distributed pro rata based on the number of months they
incurred the deductions at issue.
6. No Reversion: There would be no reversion to the
Defendant.
As background, the certified claims included the following:
a. Class 1 (Unlawful Deductions — SPS Class): All current
and former employees of Sprint who worked at Sprint's retail store
location(s) in California and whose compensation was based in full
or in part on incentive compensation (also called commissions), and
whose commissions were reduced by a Sprint Promoter Score
Adjustment, at any time from February 2016 to March 2017.
b. Class 2 (Wage Statement Class): All members of the
Unlawful Deductions - SPS Class whose commissions were reduced by a
Sprint Promoter Score Adjustment at any time from September 29,
2016 through March 2017.
c. Class 3 (Waiting Time Class): All members of the Unlawful
Deductions - SPS Class who separated their employment from Sprint
at any time from February 2016 through the present.
The settlement agreement contemplates $1 million in attorney's fees
(representing 25% of the gross settlement fund) and $50,000 in
costs, and a total incentive payment of $8,000. While the prospect
of these forthcoming requests does not prevent preliminary approval
at this stage, the parties are advised that the requested amounts
are subject to close scrutiny and potential reduction at the final
approval stage.
The parties have agreed to a revised proposed form of notice, which
would be sent to the 2,290 class members via first-class mail, and
skip traces will be performed on any notices returned as
undeliverable. The notice procedure and the distribution of class
funds is to be administered by Simpluris, Inc., and will not exceed
$20,000. The Payments will be automatically mailed to the class
members upon final approval of the settlement (unless a class
member affirmatively opts out). The parties propose a 60-day
opt-out and objection period.
The Plaintiffs now move for preliminary approval of the settlement
agreement.
Subject to final approval of the settlement and to the extent
stated, Judge Alsup granted the Plaintiffs' motion for preliminary
approval of the class settlement agreement. He approved the
proposed form of notice, to be administered by Simpluris. The
final pretrial conference and trial dates, as well as other pending
deadlines in the action, are vacated.
The following dates are set: (i) the Class notice will be
disseminated by July 19; (ii) the motion for attorney's fees and
costs and incentive award is due by August 16; (iii) the objections
by the class members are due by September 13; (iv) the motion for
final approval of settlement agreement is due by October 15; and
(v) the final fairness hearing will be held on November 14 at 11
a.m.
A full-text copy of the Court's June 28, 2019 Order is available at
https://is.gd/ActF3U from Leagle.com.
Joshua Caudle & Krystle White, Plaintiffs, represented by Paul
Haines -- phaines@haineslawgroup.com -- Haines Law Group, APC,
Tuvia Korobkin -- tkorobkin@haineslawgroup.com -- Haines Law
Group,
APC & Stacey Min Ha Shim -- sshim@haineslawgroup.com -- Haines Law
Group, APC.
Sprint/United Management Company, Defendant, represented by Lisa
K.
Horgan -- lhorgan@littler.com --, Littler Mendelson, P.C. & Elisa
Nadeau -- enadeau@littler.com -- Littler Mendelson, PC.
SSC KERRVILLE: Conditional Class Cert. Bid Dismissed as Moot
-------------------------------------------------------------
In the class action lawsuit styled as ROSARIO PASSMORE,
INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED; BRENDA
L. CHAFTON, INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY
SITUATED; MARIA WEAKS, JO ANN VEGA, KELLY SLAPE, the Plaintiffs,
vs. SSC KERRVILLE HILLTOP VILLAGE OPERATING COMPANY LLC, SSC
KERRVILLE EDGEWATER OPERATING COMPANY, LLC, SSC KERRVILLE ALPINE
TERRACE OPERATING COMPANY, LLC, the Defendants, Case No.
5:18-cv-00782-FB-ESC (W.D. Tex., July 25, 2019), the Hon Judge
Elizabeth S. Chestney entered an order on July 25, 2019:
1. lifting Court's previous stay of the case;
2. granting the Parties' joint motion for leave to file
settlement document under seal and for preliminary
approval of Fair Labor Standards Act settlement and brief
in support
3. dismissing as moot without prejudice plaintiffs' opposed
motion for expedited conditional certification of a
collective action and to authorize judicially-supervised
notice under section 216(b) and brief in support, to
refiling if the settlement is not finalized;
4. directing the parties' settlement agreement and release be
filed under seal;
5. instructing the clerk of court that the sealed document
discussed in the order be excluded from the electronic
docket as well as the public case file;
6. destroying or returning all physical copies of the sealed
documents to counsel for Defendants within 10 days after
the court enters any order dismissing thes action with
prejudice;
7. preliminarily approving proposed settlement agreement and
release signed by Plaintiffs and Defendants pending a
final fairness hearing;
8. preliminarily finding that the settlement on the terms in
the agreement is a fair and reasonable compromise of a
bona fide dispute, and that such settlement is in the best
interest of the flsa settlement class;
9. finding that the settlement as proposed in the agreement
resulted from arms'-length negotiations;
10. appointing Ilym Group, Inc. to serve as settlement
administrator;
11. authorizing Ilym Group, Inc. to mail and e-mail the
respective approved notice of FLSA settlement and further
administer the settlement in accordance with the terms of
the agreement and this order;
12. the settlement administrator shall also be authorized to
post the settlement claim form to the website
kerrvilleovertimelawsuit.com.
13. approving mail, e-mail, and text message notices of
settlement; and
14. finding the form and method for notifying the FLSA class
meets the requirements of the FLSA.[CC]
ST. FRANCIS: La. App. Affirms Class Certification in Rabum Suit
---------------------------------------------------------------
In the case, IRMA RABUN, INDIVIDUALLY AND ON BEHALF OF ALL OTHERS
SIMILARLY SITUATED, Plaintiffs-Appellees, v. ST. FRANCIS MEDICAL
CENTER, INC., Defendant-Appellant, Case No. 52,658-CA (La. App.),
Judge Jeffrey Stephen Cox of the Court of Appeal of Louisiana,
Second Circuit, affirmed the trial court's judgment granting
Rabun's motion to certify the matter as a class action.
On Feb. 1, 2013, Ms. Rabun was involved in a automobile accident
and subsequently treated at St. Francis. Ms. Rabun filed a suit
for damages against the other driver in the accident. St. Francis
filed a medical lien for the full cost of her medical treatment
against the settlement Ms. Rabun would receive in connection with
the underlying accident. Ms. Rabun had health insurance and St.
Francis was a contracted health care provider, which would have
allowed for a discounted rate on medical services. However, St.
Francis did not file a claim with Ms. Rabun's insurer, only filing
the medical lien against Ms. Rabun's judgment. Ms. Rabun filed
suit against St. Francis claiming St. Francis was required to
submit all claims for medical bills to her health insurer for the
contracted rate, in accordance with the Health Care Consumer
Billing Disclosure Protection Act.
The appeal does not encompass the merits of Ms. Rabun's claim, but
is limited to a review of the trial court's certification of the
class action. Ms. Rabun defined the class to be certified as all
persons currently and/or formerly residing in the State of
Louisiana during the relevant time period:
(1) Having Health Insurance Coverage [as defined by La. R.S.
22:1872(18)] provided coverage for themselves or for others for
whom they are legally responsible, with any Health Insurance Issuer
[as defined by La. R.S. 22:1872(19)] at the time covered health
care services [as defined by La. R.S. 22:1872(8)] were provided by
any company owned and/or operated by St. Francis Medical Center;
and,
(2) With which Health Insurance Issuer any company owned
and/or operated by St. Francis Medical Center was a contracted
health care provider at the time of service [as defined by La. R.S.
22:1872(6); and,
(3) From whom St. Francis Medical Center and/or any company
owned and/or operated by St. Francis Medical Center collected,
and/or attempted to collect, the Health Insurance Issuer's
Liability [as defined by La. R.S. 22:1872(20)], including, but not
limited to, any collection or attempt to collect from any
settlement, judgment or claim made against any third person or
insurer who may have been liable for any injuries sustained by the
patient (which insurers include those providing liability coverage
to third persons, uninsured/underinsured coverage, and/or medical
payments coverage); and/or,
(4) From whom St. Francis Medical Center and/or any company
owned and/or operated by St. Francis Medical Center, collected,
and/or attempted to collect, any amount in excess of the Contracted
Reimbursement Rate [as defined by La. R.S. 22:1872(7)], including
but not limited to, any collection or attempt to collect from any
settlement, judgment, or claim made against any third person or any
insurer which may have been liable for any injuries sustained by
the patient (which insurers include those providing liability
coverage to third persons, uninsured/underinsured coverage, and/or
medical payments coverage); and or
(5) From whom St. Francis Medical Center and/or any company
owned and/or operated by St. Francis Medical Center, collected,
and/or attempted to collect, any amount without first receiving any
explanation of benefits or other information from the Health
Insurance Issuer setting forth the liability of the insured as
required by La. R.S. 22:1874(A)(2) and (3).
She requested the class extend back to Jan. 1, 2004, the effective
date of the Balance Billing Act.
St. Francis opposed the class action certification, arguing Ms.
Rabun's claims are inappropriate for class certification. Its
reasons for judgment were signed on Jan. 30, 2018. The judgment
certifying the class was signed on April 19, 2018.
St. Francis now appeals the trial court's judgment certifying the
class. It argues the trial court abused its discretion in granting
Ms. Rabun's motion to certify class action where she failed to
establish by a preponderance of the evidence that she is an
adequate class representative; there are questions of law or fact
common to the members of the purported class which predominate over
those questions affecting only individual members; and, a class
action is the superior method to adjudicate these claims. St.
Francis asserts that Ms. Rabun has not proven that all of the
requisite elements of class certification are satisfied sufficient
to certify this matter as a class action.
Judge Cox finds that the trial court did not err in finding Ms.
Rabun is an adequate class representative. The record does not
show that Ms. Rabun's interest is in conflict with the other class
members, and she has agreed to see this suit through to end.
Further, he does not doubt the competency or qualifications of
either party's chosen counsel. The trial court also has not made a
finding of fact regarding prescription, and the Defendants have not
filed an exception of prescription.
Additionally, the Judge notes that at this juncture, he is only
determining whether the trial court properly ruled on the
procedural issue of whether or not the matter should proceed as a
class action. The merits of any individual claims or damages is
not properly before us. We find that the trial court did not err in
finding Ms. Rabun is an adequate class representative.
Next, the Judge finds that the fact that different health insurance
providers and participation agreements are involved does not
outweigh the common question of whether St. Francis's collection
policy, in effect at the time, violated the Balance Billing Act.
In the interest of judicial economy, a class action will diminish
the need to have numerous individual suits regarding the same
issue.
Additionally, the class action ensures fairness among the class
members. For these reasons, the Judge finds that the trial court
was not manifestly erroneous in determining class action is the
superior method for adjudication, as the common question is most
efficiently answered in the context of a class action suit. He
finds that the trial court did not abuse its discretion in
certifying Ms. Rabun's motion to certify the matter as a class
action.
For the foregoing reasons, Judge Cox affirmed the trial court's
granting of Ms. Rabun's motion to certify the matter as a class
action. Costs associated with the appeal are assessed to the
Defendants.
A full-text copy of the Court's June 26, 2019 Order is available at
https://is.gd/Ia457b from Leagle.com.
BREAZEALE, SACHSE & WILSON, LLP, By: David Robert Kelly --
david.kelly@bswllp.com -- Thomas Richard Temple, Jr. --
thomas.temple@bswllp.com -- Christopher David Billings --
chris.billings@bswllp.com -- Joseph J. Cefalu, III --
joseph.cefalu@bswllp.com -- Counsel for Appellant.
HOFFOSS DEVALL, LLC, By: J. Lee Hoffoss, Jr., Claude P. Devall,
Jr., Donald W. McKnight, MARTZELL, BICKFORD & CENTOLA, PC, By:
Scott R. Bickford , Lawrence J. Centola, III , LABRDE EARLES LAW
FIRM, By: Derrick G. Earles, PARKER ALEXANDER, LLC, By: Kevin D.
Alexander, HAROLD D. LUCIUS, JR. , KIRBY D. KELLY, Counsel for
Appellees.
SUFFOLK COUNTY, NY: Newkirk Seeks Cert. of Disabled Residents Class
-------------------------------------------------------------------
The Plaintiffs in the lawsuit captioned Lance Newkirk, on behalf of
himself, and all those similarly situated; Meesha Johnson, on
behalf of herself, and all those similarly situated; Dorothy Wendel
on behalf of herself, and all those similarly situated; Christopher
G., on behalf of himself, and all those similarly situated v.
Frances Pierre, Commissioner of the Suffolk County Department of
Social Services, in her official capacity, Case No. CV 19-4283
(E.D.N.Y.), move the Court for an order granting their motion for
class certification.
The class is defined as:
All Suffolk County residents with disabilities who:
(1) have applied for or will apply for Supplemental
Nutrition Assistance Program ("SNAP"), Medicaid, or
Temporary Assistance ("TA"), from the Suffolk County
Department of Social Services ("SCDSS") since July 1, 2018
and are entitled to reasonable accommodations in the
application process to participate in or benefit from these
programs; and/or (2) have been found eligible for such
programs and are entitled to reasonable accommodations in
order to enjoy equal opportunity to participate in or
benefit from them;
The Plaintiffs also ask the Court to appoint the Empire Justice
Center and the National Center for Law and Economic Justice as
counsel for the certified class.[CC]
The Plaintiffs are represented by:
Greg Bass, Esq.
Marc Cohan, Esq.
Travis W. England, Esq.
Jen Samantha D. Rasay, Esq.
NATIONAL CENTER FOR LAW AND ECONOMIC JUSTICE
275 Seventh Ave, Suite 1506
New York, NY 10001
Telephone: (212) 633-6967
E-mail: Bass@nclej.org
Cohan@nclej.org
England@nclej.org
Rasay@nclej.org
- and -
Linda Hassberg, Esq.
Saima Akhtar, Esq.
EMPIRE JUSTICE CENTER
Touro Law Center PAC
225 Eastview Drive, Room 222
Central Islip, NY 11722
Telephone: (631) 650-2305
E-mail: LHassberg@empirejustice.org
sakhtar@empirejustice.org
SWIFT TRANSPORTATION: Court Consolidates Mcnutt, Woeck FLSA Suits
-----------------------------------------------------------------
Judge Benjamin H. Settle of the U.S. District Court for the Western
District of Washington, Seattle, consolidates the cases captioned
MARY McNUTT, an individual, on behalf of herself and all others
similarly situated, Plaintiff, v. SWIFT TRANSPORTATION CO. OF
ARIZONA, LLC; and DOES 1 through 10, inclusive, Defendant, and
RICHARD D. WOECK JR., an individual, Plaintiff, v. SWIFT
TRANSPORTATION CO. OF ARIZONA, LLC; and DOES 1 through 10,
inclusive, Defendant, Case Nos. 3:18-cv-05668-BHS,
3:19-cv-05342-BHS (W.D. Wash.),
Plaintiffs McNutt and Woeck, the plaintiffs in McNutt v. Swift
Transportation Co. of Arizona, LLC, USDW, Western District, Case
No. 3:18-cv-05668-BHS, and Woeck v. Swift Transportation Co. of
Arizona, LLC, USDW, Western District, Case No. 3:19-cv-05342-BHS,
respectively, and the Defendant, the Defendant in both actions,
stipulated to the consolidation of the captioned matters.
The McNutt Action was filed on Aug. 15, 2018 in the Western
District of Washington. The initial complaint asserted a
Washington class action against Defendant Swift for (1) failure to
pay rest breaks, (2) failure to pay minimum wage, (3) failure to
pay overtime, and (4) willful refusal to pay wages arising out of
Defendant's per-mile compensations scheme for its truck drivers.
Thereafter, Plaintiff McNutt was advised by Defendant Swift that
Hedglin v. Swift Transportation Co. of Arizona, LLC, USDC, Western
District of Washington Case No. 3:16-Cv-05127-BHS had been
preliminarily approved as a class action settlement, and would
release the Washington claims pled in the case. Therefore, on
April 1, 2019, Plaintiff McNutt opted-out of the Hedglin Action
settlement and filed a motion for leave to amend her complaint to
allege a nation-wide FLSA claim and drop her Washington state law
claims. Plaintiff McNutt's motion for leave to amend was granted
on May 31, 2019, and she filed her First Amended Complaint on June
3, 2019.
While the motion to amend in the McNutt Action was pending, the
Woeck Action was filed on April 25, 2019 as a nation-wide FLSA
action. Plaintiff Woeck simultaneously opted-out of the Hedglin
Action's settlement. As set forth further, the nation-wide claims
asserted in the Woeck Action are substantially the same as those
asserted in the McNutt Action.
The central allegation in both actions is that Defendant Swift
fails to pay minimum wage for all hour worked because the
Plaintiffs are paid by the mile and thus are not compensated for
on-duty time other than driving. Both the Plaintiffs were employee
truck drivers for Swift and their respective lawsuits involve a
significant (if not near total) overlap of legal and factual
questions. Thus, consolidation will avoid duplicate filings of the
same or similar papers, including the class certification
proceedings, which will save the Court and the parties significant
resources.
Second, consolidation will avoid duplicative discovery. Given the
overlap in the factual allegations and the legal issues, relevant
evidence in both actions will only have to be produced once. This
will save the parties significant resources, and save the Court
time and resources in the event of discovery disputes.
Third, the motion to consolidate is timely, as both actions are at
an early and similar stage of litigation. The First Amended
Complaint in the McNutt Action was filed June 3, 2019 and the
Complaint in the Woeck Action was filed on April 25, 2019. Both
actions are in the same district and before the same judge, and
minimal discovery has been conducted so far. There is not
currently an operative answer on file in either action.
Based on the foregoing, the parties request that McNutt and Woeck
Actions be consolidated.
Ahead of filing the motion, the parties met and conferred regarding
case schedule pursuant to Local Rule 42(b). They stipulated and
agreed that the case schedule previously laid out in McNutt should
be vacated and the following schedule be implemented: (i)
Defendant's Responsive Pleading due by July 2, 2019; (ii) FRCP
26(f) Conference Deadline of Aug. 5, 2019; (iii) Initial Disclosure
Deadline of Aug. 14, 2019; (iv) Joint Status Report due by Aug. 23,
2019; and (v) Case Management Conference to be set by the Court
thereafter.
The parties respectfully request that the Court grants the Joint
Stipulated Motion and: (1) consolidate the McNutt and Woeck Action
with the McNutt Action, the latter which will be the lead case (as
the earlier filed), (2) the Court vacates the previous case
schedule in McNutt and adopt the case management schedule set
forth.
Judge Settle so ordered.
A full-text copy of the Court's June 28, 2019 Order is available at
https://is.gd/Q3JTfB from Leagle.com.
Richard D Woek, Jr, an individual, Plaintiff, represented by Joshua
H. Haffner -- jhh@haffnerlawyers.com -- HAFFNER LAW PC.
Swift Transportation Co of Arizona LLC, Defendant, represented by
Blair I. Fassburg -- bfassburg@williamskastner.com -- WILLIAMS
KASTNER, David W. Wiley -- dwiley@williamskastner.com -- WILLIAMS
KASTNER & Sean D. Leake -- sleake@williamskastner.com -- WILLIAMS
KASTNER.
TOPIX PHARMACEUTICALS: Reid Sues over ADA Violations
----------------------------------------------------
A class action complaint has been filed against Topix
Pharmaceuticals, Inc. for alleged violations of the The Americans
with Disabilities Act of 1990 (ADA). The case is captioned Valentin
Reid, on behalf of himself and all others similarly situated,
Plaintiff, v. Topix Pharmaceuticals, Inc., Defendant, Case No.
1:19-cv-06543-VSB (S.D.N.Y., July 15, 2019). This civil
rights-related lawsuit is assigned to Hon. Judge Robert W.
Lehrburger.
Topix Pharmaceuticals Inc. develops, manufactures, distributes, and
sells therapeutic and cosmetic skincare products. The company
maintains and operates a Long Island-based 125,000 square foot
manufacturing facility. [BN]
The Plaintiff is represented by:
David Paul Force, Esq.
STEIN SAKS, PLLC
285 Passaic Street
Hackensack, NJ 07601
Telephone: (201) 282-6500
E-mail: dforce@steinsakslegal.com
TRINITY INDUSTRIES: Agreement in Principle Reached in Isolde Suit
-----------------------------------------------------------------
Trinity Industries, Inc. said in its Form 10-Q Report filed with
the Securities and Exchange Commission on July 25, 2019, for the
quarterly period ended June 30, 2019, that the parties in in the
case, Thomas Nemky, Individually and On Behalf of All Other
Similarly Situated v. Trinity Industries, Inc., Timothy R. Wallace,
and James E. Perry, Case No. (2:15-CV-00732) ("Nemky") and Richard
J. Isolde, Individually and On Behalf of All Other Similarly
Situated v. Trinity Industries, Inc., Timothy R. Wallace, and James
E. Perry, have reached an agreement in principle to settle all
claims in this case without any admission of liability or fault for
$7.5 million.
On January 11, 2016, the cases styled Thomas Nemky, Individually
and On Behalf of All Other Similarly Situated v. Trinity
Industries, Inc., Timothy R. Wallace, and James E. Perry, Case No.
(2:15-CV-00732) ("Nemky") and Richard J. Isolde, Individually and
On Behalf of All Other Similarly Situated v. Trinity Industries,
Inc., Timothy R. Wallace, and James E. Perry, Case No.
(3:15-CV-2093) ("Isolde"), were consolidated in the District Court
for the Northern District of Texas, with all future filings to be
filed in the Isolde case.
On March 9, 2016, the Court appointed the Department of the
Treasury of the State of New Jersey and its Division of Investment
and the Plumbers and Pipefitters National Pension Fund and United
Association Local Union Officers & Employees' Pension Fund as
co-lead plaintiffs ("Lead Plaintiffs").
On May 11, 2016, the Lead Plaintiffs filed their Consolidated
Complaint alleging defendants Trinity Industries, Inc., Timothy R.
Wallace, James E. Perry, and Gregory B. Mitchell violated Section
10(b) of the Securities Exchange Act of 1934, Rule 10b-5
promulgated thereunder, and defendants Mr. Wallace and Mr. Perry
violated Section 20(a) of the Securities Exchange Act of 1934 by
making materially false and misleading statements and/or by failing
to disclose material facts about Trinity's ET Plus and the FCA case
styled Joshua Harman, on behalf of the United States of America,
Plaintiff/Relator v. Trinity Industries, Inc., Defendant, Case No.
2:12-cv-00089-JRG (E.D. Tex.).
On August 18, 2016, Trinity, Mr. Wallace, Mr. Perry, and Mr.
Mitchell filed motions to dismiss Lead Plaintiffs Consolidated
Complaint, which remain pending. On March 13, 2017, the Court
granted defendant's motion to stay and administratively close
proceedings pending the Fifth Circuit appeal.
Following the conclusion of the appeal, the Court entered orders
regarding the schedule for filing Lead Plaintiffs' amended
complaint and Defendants' motion to dismiss an amended complaint.
The parties have reached an agreement in principle to settle all
claims in this case without any admission of liability or fault for
$7.5 million.
Defendants have denied and continue to deny specifically each and
all of the claims and contentions alleged by Lead Plaintiffs in
this case. The settlement is subject to completion of a formal
stipulation of settlement and final court approval.
Lead Plaintiffs will file a motion for preliminary approval of the
settlement once the stipulation of settlement has been executed.
Trinity Industries, Inc. provides rail transportation products and
services in North America. It operates through three segments:
Railcar Leasing and Management Services Group, Rail Products Group,
and All Other. Trinity Industries, Inc. was founded in 1933 and is
headquartered in Dallas, Texas.
UNITED SERVICES: Kan. App. Affirms Summary Judgment in Vaughn Suit
------------------------------------------------------------------
In the case, MEREDITH VAUGHN, Individually and on Behalf of All
Others Similarly Situated, Appellant, v. UNITED SERVICES AUTOMOBILE
ASSOCIATION, Appellee, Case No. 118,974 (Kan. App.), Judge G.
Gordon Atcheson of the Court of Appeals of Kansas affirmed the
district court's order granting summary judgment for United
Services Automobile Association ("USAA").
Vaughn sued USAA, her insurance carrier, in Crawford County
District Court for medical expenses she claimed were due under the
no-fault provisions of her policy as the result of injuries she
received in a motor vehicle collision. Vaughn was injured in a
motor vehicle collision with another driver in June 2014 for which
she received medical treatment at a Wichita hospital. Hisham
Abu-Salman, the other driver, was at fault for the collision.
Vaughn submitted a bill from the hospital for about $6,600 and a
bill from a physicians' group for $1,077 to USAA for payment under
her no-fault coverage. USAA paid a portion of each bill, leaving
Vaughn personally responsible for about $2,500 in medical costs,
even though her policy limit for that particular coverage was
$12,500. USAA has insisted it was obligated to pay only the
"reasonable" cost of the treatment Vaughn received and did so.
Vaughn sued USAA in August 2015 after the company refused to pay
the full amount of the hospital and physician bills she submitted
under the personal injury protection ("PIP") provisions of her
policy. The suit alleged various legal theories for recovery,
including breach of contract, and Vaughn asked that the district
court certify her as a class representative to sue on behalf of
other USAA policyholders ostensibly denied PIP coverage in the same
manner. USAA duly answered and denied it had wrongfully deprived
Vaughn of any benefits due her.
In the meantime, Vaughn filed a separate action against Abu-Salman
to recover for the personal injuries and other harm she suffered as
a result of the collision, including economic damages for all of
her medical expenses and lost wages. The Kansas Automobile Injury
Reparations Act gives an insurance company that pays PIP benefits a
subrogation right against any recovery its insured may obtain from
a third party legally responsible for the insured's injuries. So
USAA was entitled to repayment of the PIP benefits if Vaughn
settled with or collected on a judgment against Abu-Salman.
In early May 2017, Vaughn's lawyer informed a representative of
USAA that she likely would settle with Abu-Salman and asked USAA to
waive its subrogation rights for the PIP benefits. The USAA
representative responded in writing that the company has waived its
PIP subrogation rights.
On May 18, Vaughn signed a release of all claims against Abu-Salman
in exchange for $25,000, reflecting the limits of his motor vehicle
liability insurance policy. The release stated that Vaughn
"reserves her under insured claim" and that she in no way intended
to waive or compromise that claim against USAA. Vaughn made a
separate demand against USAA for payment on her underinsured
motorist coverage, given the extent of her compensable injuries.
USAA ultimately tendered a policy limits payment to Vaughn under
that coverage.
Six weeks later, USAA filed a motion for summary judgment in the
case on the grounds that Vaughn's complete release of Abu-Salman
extinguished her claim for PIP benefits consistent with established
Kansas law. Vaughn filed a memorandum opposing the motion.
Everybody agrees that only Vaughn's breach of contract claim
against USAA remained at issue on summary judgment.
In a 10-page journal entry filed on Jan. 30, 2018, the district
court granted USAA's motion, relying heavily on the Court's opinion
in Chamberlain v. Farm Bureau Mut. Ins. Co. The district court
found the request for certification of a class action to be moot,
since Vaughn had no viable legal claim and, therefore, could not
serve as a class representative.
Vaughn has appealed. Vaughn has offered a series of legal
rejoinders in an effort to show the district court's reasoning and
result to be flawed. Among other things, she represents in her
brief (without citation to the record) that USAA has retained a
company to "audit" PIP claims using a computer program to determine
how much should be paid on a particular bill for medical services.
Vaughn also cites Kelley v. Progressive Northwestern Ins. Co.,
(unpublished opinion), as a well-reasoned opinion that supports
reversing the district court.
Judge Atcheson holds that the district court correctly applied the
law to the undisputed facts in finding that Vaughn's settlement
with and release of Abu-Salman extinguished her breach of contract
claim against USAA for unpaid PIP benefits. Vaughn has neither
pointed to disputed material facts nor legal error that would
require the Court to reverse the judgment the district court
entered for USAA. In turn, the district court properly treated the
request for class certification as moot for want of a viable class
representative. Accordingly, he affirmed.
A full-text copy of the Court's June 28, 2019 Memorandum Opinion is
available at https://is.gd/REixzw from Leagle.com.
Patrick C. Smith, of Patrick C. Smith, LLC, of Pittsburg, for
appellant.
Jay Williams -- jwilliams@schiffhardin.com -- and Paula M. Ketcham
-- pketcham@schiffhardin.com -- pro hac vice, of Schiff Hardin LLP,
of Chicago, Illinois, and Dana M. Harris --
dharris@harrisandhart.com -- and Emily A. Yessen --
eyessen@harrisandhart.com -- of Harris & Hart, L.L.C., of Overland
Park, for appellee.
UNITED STATES: Kammeyer Suit Dismissed w/o Prejudice
----------------------------------------------------
In the case, JAMES R. KAMMEYER, JR., Plaintiff, v. WILLIAM TRUE, D.
STICKELS, DANIEL HUGGINS, UNITED STATES OF AMERICA, and Defendants,
Case No. 19-cv-00454-JPG (S.D. Ill.), Judge J. Phil Gilbert of the
U.S. District Court for the Southern District of Illinois dismissed
without prejudice the Complaint.
Plaintiff Kammeyer, an inmate with the Federal Bureau of Prisons
who is currently incarcerated at the United States Penitentiary
located in Marion, Illinois ("USP Marion"), brings the action for
alleged violations of his constitutional rights by persons acting
under the color of federal authority that occurred in connection
with prison restrictions imposed after several incidents involving
drug overdoses. The Plaintiff seeks injunctive and monetary relief
and has filed a motion to certify the Complaint as a class action
on behalf of all inmates housed at USP Marion.
The case is now before the Court for preliminary review of the
Complaint pursuant to 28 U.S.C. Section 1915A. The Plaintiff
claims that because the Defendants have used mass punishment and
encouraged inmate self-enforcement of the antidrug policy the
safety of the general inmate population is threatened and violent
attacks, tension, and anxiety among the population have increased.
He also alleges that during the shakedown, staff destroyed all
microwave ovens in inmate housing units purchased with inmate funds
and disposed of other inmates' property. The Plaintiff, however,
is only entitled to assert his own rights. Thus, the Court will
only consider the alleged harms to the Plaintiff, not to the inmate
population generally.
Based on the allegations in the Complaint, Judge Geilbert finds it
convenient to divide the pro se action into the following seven
counts: (i) Count 1: First Amendment retaliation claim against
True, Stickles, and Huggins; (ii) Count 2: First Amendment claim
for violating the Plaintiff's right to access the courts; (iii)
Count 3: Fifth Amendment claim against True and Stickles for
seizing and discarding the Plaintiff's property during the
penitentiary wide shakedown on April 3 and 4, 2019; (iv) Count 4:
Eighth Amendment claim for cruel and unusual punishment against
True, Stickles, and Huggins for implementing mass punishment on the
entire inmate population; (v) Count 5: Eighth Amendment claim
against True, Stickles, and Huggins for failure to protect the
Plaintiff from threats against his safety; (vi) Count 6: Fourth
Amendment claim against True and Stickles for unreasonable search
and seizure during the penitentiary wide shakedown on April 3 and
4, 2019; and (vii) Count 7: Tort claims pursuant to the Federal
Tort Claims Act.
Any other claim that is mentioned in the Complaint but not
addressed in the Order should be considered dismissed without
prejudice as inadequately pleaded under the Twombly pleading
standard.
The Judge finds that Count 1 fails to state a claim upon which
relief may be granted and will be dismissed without prejudice. To
the extent that the Plaintiff is arguing that the threats by the
Defendants amounted to cruel and unusual punishment under the
Eighth Amendment, the claim also fails. The Plaintiff does not
provide enough information regarding either instance of threats.
In the first instance of retaliation, he states that staff
threatened him with retaliation if he participated in the food
strike and states that "`Staff' includes the Defendants," but does
not specify what each defendant did, said, or threatened. In the
other claim of retaliation, the Plaintiff attributes the threats
simply to "staff." The allegations are too vague to support a
claim against the Defendants.
Next, the Judge holds that Count 2 is dismissed without prejudice.
He finds that the Plaintiff does not associate the claim with any
Defendants or describe what conduct caused a detriment to his
ability to pursue a claim or defense in court. Claims must be
supported by more than conclusory statements.
The due process claim in Count 3 will be dismissed without
prejudice. He holds that a claim for relief premised on due
process violations where the prisoner had alternative remedies is
also not recognized by the Seventh Circuit in a Bivens action.
Other administrative procedures are available to potentially
compensate a federal inmate for the loss of property.
Next, the claims under Count 4 of cruel and unusual punishment
resulting from the mass punishment imposed by the Defendants are
dismissed without prejudice. The Judge finds that the Plaintiff
has not alleged that the limitations on commissary spending or
phone or email use has denied him basic necessities. Further, to
the extent that the Plaintiff is arguing a due process violation
since the limitations on commissary, phone calls, and emails where
imposed on inmates who were not involved in the drug overdoses, the
claim also fails. Finally, the Plaintiff alleging that the food
was nutritionally inadequate because the portions were small and
the food was not hot does not rise to the level of a constitutional
deprivation.
Because his claim fails to show that he was personally at risk of
an attack and that Defendants were aware of that specific risk and
failed to act, Count 5 will be dismissed without prejudice. The
Plaintiff states in the Complaint that he did not participate in
the food strike, but does not allege that as a result of not
participating he was attacked or subjected to violence or further
threats.
Since the Fourth Amendment has no application within prison cells,
Count 6 is dismissed without prejudice. In general, prisoners do
not have protection from unreasonable searches under the Fourth
Amendment.
Finally, because the Plaintiff admits that he has not exhausted his
administrative remedies, any claims brought under the FTCA are
dismissed without prejudice. The Judge finds that the Plaintiff
alleges that there are possible state tort actions involved in his
claims, but fails to provide any supporting facts.
The Plaintiff's Complaint does not survive preliminary review and
will be dismissed. He will have an opportunity to re-plead his
claims in a First Amended Complaint, however, if he wishes to
proceed any further with the action. Furthermore, if the Plaintiff
wishes to pursue an FTCA lawsuit and has not yet completed the
administrative claim process required before bringing suit under
the FTCA, he must file a new lawsuit to bring the FTCA claim, after
the claim has been administratively exhausted. He cannot present
an FTCA claim in this action unless he has already exhausted the
administrative process, because a lawsuit prematurely filed prior
to exhaustion must be dismissed.
The Plaintiff seeks certification of a class action for his claims.
As those claims are dismissed, the Judge denied as moot the
Plaintiff's Motion for Class Action and Certification.
Finally, the Judge encourages the Plaintiff to renew his request
for the appointment of counsel at a later date. He finds that the
Plaintiff is competent to litigate the matter without
representation at this time. Other than citing Federal Rule of
Civil Procedure 23(g), requiring the Court to appoint class counsel
when it certifies a class action, the Plaintiff provides no
information regarding why he is unable to proceed pro se, and given
the early stage of the litigation, it is difficult to accurately
evaluate the need for assistance of counsel.
Based on this, Gilbert dismissed without prejudice the Complaint,
including Counts 1 to 7, for failure to state a claim upon which
relief may be granted. He denied as moot the Motion for Class
Action and Certification, and denied without prejudice the request
for recruitment of counsel.
The Judge granted the Plaintiff leave to file a "First Amended
Complaint" by July 24, 2019. Should the Plaintiff fail to file a
First Amended Complaint within the allotted time or consistent with
the instructions set forth in this Order, the entire case will be
dismissed with prejudice for failure to comply with a court order
and/or for failure to prosecute his claims. The dismissal will
also count as one of the Plaintiff's three allotted "strikes" under
28 U.S.C. Section 1915(g).
It is strongly recommended that the Plaintiff use the civil rights
complaint form designed for use in the District. He should label
the form, "First Amended Complaint," and he should use the case
number for this action (No. 19-cv-00454-JPG). To enable him to
comply with the Order, the Clerk is directed to mail the Plaintiff
a blank civil rights complaint form.
An amended complaint generally supersedes and replaces the original
complaint, rendering the original complaint void. The First
Amended Complaint must stand on its own without reference to any
previous pleading. The Plaintiff must re-file any exhibits he
wishes the Court to consider. The First Amended Complaint is also
subject to review pursuant to 28 U.S.C. Section 1915A.
The Plaintiff is further advised that his obligation to pay the
filing fee for the action was incurred at the time the action was
filed, thus the filing fee remains due and payable, regardless of
whether the Plaintiff files a First Amended Complaint.
Finally, the Plaintiff is advised that he is under a continuing
obligation to keep the Clerk of Court and each opposing party
informed of any change in his address; the Court will not
independently investigate his whereabouts. This will be done in
writing and not later than seven days after a transfer or other
change in address occurs. Failure to comply with this Order will
cause a delay in the transmission of court documents and may result
in dismissal of this action for want of prosecution.
A full-text copy of the Court's June 26, 2019 Memorandum and Order
is available at https://is.gd/gd1O3U from Leagle.com.
James R. Kammeyer, Jr., and All Inmates Housed at USP Marion,
Plaintiff, pro se.
VEGAS.COM: Website not Accessible to Blind Person, Traynor Says
---------------------------------------------------------------
YASEEN TRAYNOR A/K/A YASEEN TRAYLOR, on behalf of himself and all
others similarly situated, the Plaintiffs, vs. VEGAS.COM, LLC, the
Defendant, Case No. 1:19-cv-06947 (S.D.N.Y.), July 25, 2019),
asserts that Defendant failed to design, construct, maintain, and
operate its website to be fully accessible to and independently
usable by Plaintiff and other blind or visually-impaired people.
Defendant's denial of full and equal access to its website, and
therefore denial of its goods and services offered thereby, is a
violation of Plaintiff's rights under the Americans with
Disabilities Act ("ADA").
The Plaintiff is a visually-impaired and legally blind person who
requires screen-reading software to read website content using his
computer. The Plaintiff uses the terms "blind" or
"visually-impaired" to refer to all people with visual impairments
who meet the legal definition of blindness in that they have a
visual acuity with correction of less than or equal to 20 x 200.
Some blind people who meet this definition have limited vision.
Others have no vision.
Based on a 2010 U.S. Census Bureau report, approximately 8.1
million people in the United States are visually impaired,
including 2.0 million who are blind, and according to the American
Foundation for the Blind's 2015 report, approximately 400,000
visually impaired persons live in the State of New York.
The Plaintiff seeks a permanent injunction to cause a change in
Defendant's corporate policies, practices, and procedures so that
Defendant's website will become and remain accessible to blind and
visually-impaired consumers, the lawsuit says.
VEGAS.com, LLC is a destination-specific Online Travel Agency
founded in 1998 and headquartered in Las Vegas, Nevada.[BN]
Attorneys for the Plaintiff are:
David Force, Esq.
STEIN SAKS, PLLC
285 Passaic Street
Hackensack, NJ 07601
Telephone: (201) 282-6500
Facsimile: (201) 282-6501
E-mail: dforce@steinsakslegal.com
VENATOR MATERIALS: City of Miami Trust Hits Share Price Drop
------------------------------------------------------------
CITY OF MIAMI GENERAL EMPLOYEES' & SANITATION EMPLOYEES' RETIREMENT
TRUST, individually and on behalf of all others similarly situated,
Plaintiff, v. VENATOR MATERIALS PLC, SIMON TURNER, KURT D. OGDEN,
STEPHEN IBBOTSON, RUSS R. STOLLE, PETER R. HUNTSMAN, SIR ROBERT J.
MARGETTS, DOUGLAS D. ANDERSON, DANIELE FERRARI, KATHY D. PATRICK,
HUNTSMAN (HOLDINGS) NETHERLANDS B.V., HUNTSMAN INTERNATIONAL LLC,
HUNTSMAN CORPORATION, CITIGROUP GLOBAL MARKETS INC., MERRILL LYNCH,
PIERCE, FENNER & SMITH INCORPORATED, GOLDMAN SACHS & CO. LLC, and
J.P. MORGAN SECURITIES LLC, Defendants, Case No. 1:19-cv-07182
(S.D. N.Y., July 31, 2019) is a securities class action brought on
behalf of all persons or entities that: (a) purchased Venator
ordinary shares between August 2, 2017 and October 29, 2018,
inclusive; (b) purchased Venator shares in or traceable to the
Company's initial public offering of ordinary shares conducted on
or around August 3, 2017 (the "IPO"); and (c) purchased Venator
shares in or traceable to the Company's secondary public offering
of ordinary shares conducted on or around December 4, 2017 (the
"SPO," and together with the IPO, the "Offerings").
The claims asserted in the complaint are alleged against Venator
and certain of the Company's officers, members of Venator's Board
of Directors, including the Directors that signed the registration
statements for the Offerings, the lead underwriters of the
Offerings, and the "Selling Shareholders", and arise under Sections
11, 12(a)(2), and 15 of the Securities Act of 1933 (the "Securities
Act"), and Sections 10(b) and 20(a) of the Securities Exchange Act
of 1934 (the "Exchange Act") and Rule 10b-5, promulgated
thereunder.
The Defendant Venator was previously organized as the Pigments &
Additives division within defendant Huntsman Corporation, a
multinational manufacturer of chemical products. In October 2016,
Huntsman began exploring options to separate its Pigments &
Additives and Textile Effects divisions from its core business. On
January 17, 2017, Huntsman announced that it would spin off its
Pigments & Additives division into a new entity named Venator
Materials Corporation. On January 30, 2017, a fire ravaged one of
Venator's key Titanium Dioxide manufacturing plants located in
Pori, Finland. Before the fire, the Pori facility could produce up
to 130,000 metric tons of Titanium Dioxide each year, which
represented approximately 17% of the Company's total Titanium
Dioxide capacity and approximately 2% of total global demand for
the chemical. Following the fire at the Pori site, Huntsman
reorganized its separation from Venator as an initial public
offering of Venator shares, rather than a tax-free spin-off. As a
result, the shares would not be distributed to existing Huntsman
shareholders, as would have been the case in a spin-off, but rather
were offered to the public, with all proceeds going to Huntsman. On
or around August 3, 2017, Venator conducted the IPO, through which
more than 26 million ordinary shares of Venator were sold at $20
per share, with Huntsman reaping over $522 million in gross
proceeds. Four months after the IPO, on or around December 4, 2017,
Venator conducted the SPO, through which an additional 23.7 million
ordinary shares of Venator were sold at $22.50 per share, resulting
in over $533 million in gross proceeds to Huntsman.
In the Offering Materials for both the IPO and the SPO, Defendants
misrepresented the true extent of the fire damage to Venator's Pori
facility, the cost to rehabilitate the facility, and the impact on
Venator's business and operations. Throughout the Class Period, the
Company repeatedly misrepresented the true extent of the damage at
the Pori facility and made reassuring statements to investors
regarding the Company's business operations, financial prospects,
and the restoration of its Titanium Dioxide production capacity. As
a result of these misrepresentations, Venator shares traded at
artificially inflated prices throughout the Class Period. The truth
began to emerge on July 31, 2018, when Venator revealed that the
fire damage at the Pori facility was far more extensive than
Defendants had previously represented to investors. Specifically,
Venator announced that the cost to repair the facility had climbed
to more than $375 million above the insurance policy limits, more
than double the amount disclosed to investors just two months after
the IPO. On this news, the price of Venator shares declined from
$15.35 per share to $14.62 per share.
On October 30, 2018, Venator announced that in addition to the over
$500 million in costs and lost business associated with the Pori
fire incurred to date--which had been covered by Venator's
insurance policy--the Company incurred an additional restructuring
expense of approximately $415 million and would incur additional
"charges of $220 million through the end of 2024" related to the
Pori site. As a result of these disclosures, the Company's stock
price declined from $8.00 per share to $6.47 per share, or more
than 19%, on unusually high trading volume. Ultimately, by October
30, 2018, the price of Venator shares had fallen 68% from the price
at which Venator shares were sold to investors in the IPO and 71%
from the price at which Venator shares were sold to investors in
the SPO. As a result of Defendants' wrongful acts and omissions,
and the precipitous decline in the market value of the Company's
shares, Plaintiff and other Class members have suffered significant
losses and damages, says the complaint.
Plaintiff City of Miami General Employees' & Sanitation Employees'
Retirement Trust is a single-employer defined benefit pension plan
covering all City of Miami general and sanitation employees.
Venator is a global chemical company primarily focused on the
development and manufacture of Titanium Dioxide.[BN]
The Plaintiff is represented by:
Avi Josefson, Esq.
Michael D. Blatchley, Esq.
BERNSTEIN LITOWITZ BERGER & GROSSMANN LLP
1251 Avenue of the Americas
New York, NY 10020
Phone: (212) 554-1400
Facsimile: (212) 554-1444
Email: avi@blbglaw.com
michaelb@blglaw.com
- and -
Robert D. Klausner, Esq.
KLAUSNER KAUFMAN JENSEN & LEVINSON
7080 Northwest 4th Street
Plantation, FL 33317
Phone: (954) 916-1202
Email: bob@robertdklausner.com
WALLACE RUSH: Thomas FLSA Suit Class Claims Dismissed w/ Prejudice
------------------------------------------------------------------
In the case, DE'MARCUS THOMAS v. WALLACE, RUSH, SCHMIDT, INC, Civil
Action No. 16-572-BAJ-RLB (M.D. La.), Judge Brian A. Jackson of the
U.S. District Court for the Middle District of Louisiana (i)
granted in part and denied in part Motions of Defendants Wallace
and D&A Enterprises to dismiss, in part, Thomas' claims, and (ii)
granted their motions to strike the class-action allegations of his
fourth amended complaint.
The dispute arises from a company's alleged failure to pay laborers
for work they performed following the August 2016 flooding in Baton
Rouge, Louisiana. De'Marcus Thomas sued Wallace and D&A
Enterprises for violating the Fair Labor Standards Act ("FLSA"),
defrauding him, breaching an employment contract, and negligently
failing to keep payroll records. He purports to allege
collective-action claims under Section 216(b) of the FLSA, and he
seeks to certify a Federal Rule of Civil Procedure 23 class under
an unspecified Rule 23(b) subpart.
Thomas filed the suit in August 2016. The case proceeded without
issue until March 2017, when Wallace notified the Court that it had
filed for bankruptcy protection. The Court responded by staying
the case. It lifted the stay in October 2018, on Thomas' motion
and following the bankruptcy court's entry of an order lifting the
stay to allow the case to immediately proceed in the Middle
District of Louisiana.
After the Court lifted the stay, Wallace moved to dismiss Thomas'
claims and to strike his class-action allegations. The Court
granted the motion to dismiss, in part, and granted the motion to
strike, in full. It explained how Thomas' complaint was
deficiently pleaded and granted him leave to amend certain claims.
He amended -- for the fourth time.
The claims Thomas attempts to allege in his latest complaint
resemble those he attempted to allege in his last one. His fourth
amended complaint attempts to allege (1) individual and
collective-action claims for violations of the FLSA; (2) individual
and class-action claims for violations of the Louisiana Wage
Payment Law, LA. R.S. 23:631; (3) individual and class-action
claims for breach of contract; (4) individual and class-action
claims for detrimental reliance; (5) individual and class-action
claims for fraud; and (6) individual and class-action claims for
negligence.
Thomas' class definition has changed. He proposes a Rule 23 class
and a collective-action class defined as all persons who were or
are currently employed by WRS and/or Servpro of Fort Collins in the
State of Louisiana from July of 2016 to July of 2017 who were hired
to perform Manual Labor in connection with the flooding event that
occurred on or about August of 2016 in the greater Baton Rouge,
Louisiana region/area.
Manual Labor is defined as any labor related work pertaining to
physical labor tasks such as site demolition, removing drywall,
removing insulation, removing and/or remediating flooring, removing
and/or disposing of trash, and/or any other flood related
remediation and demolition activities which involve manual labor.
These class members may have had additional duties that were not
Manual Labor in nature, but Manual Labor was the primary job
function in their duties. The Plaintiffs and the members of the
Plaintiff Class are similarly situated in that they were hired to
perform Manual Labor, as defined, following the flooding event that
occurred in August of 2016 in the greater Baton Rouge, Louisiana
region/area on an hourly basis for the same rate of pay for the
Defendants in the above specified time period.
To be eligible to be class members, said workers must have not been
compensated for regular wages and/or have not been compensated the
overtime rate of one and one-halftimes the regular rate of pay for
all work performed in excess of 40 hours per work week, and for any
worker for which Defendants WRS and Servpro failed to maintain and
preserve payroll records or other records, containing, without
limitation, the total hours worked by each class member each
workday and total hours worked by each class member each workweek.
Thomas purports to allege FLSA collective-action claims on behalf
of the class described above. He alleges that he and the members
of his proposed class were together the victims of Defendant's3
improper policies and practices of failing to keep accurate payroll
records and failing to pay regular wages and overtime. He alleges
that members of the proposed class are situated similarly to him
because (1) they were recruited by Wallace to provide disaster
restorative services in Louisiana; (2) they were given job
assignments by Wallace, directed by job site supervisors from
Wallace, and D&A Enterprises as to the specific service to be
performed; and (3) they all advance similar claims of not being
compensated for regular wages and/or overtime wages. He also
alleges that he spoke with "numerous" laborers who said that the
"Defendant" failed to pay them for "similar work."
Thomas purports to allege class-action claims on behalf of the
class described. He fails, however, to specify the type of class.
He cites Rule 23(b)(2), the provision governing equitable-relief
classes, in a single paragraph. But that provision cannot apply:
Thomas predominantly requests money damages -- not equitable
relief. Accordingly, his fourth amended complaint requires the
Court to guess the type of class he intends to certify.
Contending that these allegations do not suffice, Wallace and D&A
Enterprises move to (1) dismiss Thomas' collective-action,
detrimental-reliance, fraud, and negligence claims for failure to
state a claim; and (2) strike his class-action allegations. Thomas
opposes.
Judge Jackson finds that Thomas' class definition fails the "fair
notice" standard. It is altogether unclear who, exactly, the
definition covers. He therefore grants the Defendants' motions and
dismisses Thomas' collective-action claims with prejudice.
Next, the Judge finds that Thomas' fourth amended complaint makes
clear that he had no written employment contract with Wallace or
D&A Enterprises; so his alleged reliance on oral promises was not
unreasonable as a matter of law. Hid allegations, viewed in his
favor and taken as true, suffice to state a detrimental-reliance
claim.
Thomas also fails to plead plausible fraud claims. He again fails
to allege the person who made the fraudulent statement or the time
or place the statement was made. His allegations thus fail to
satisfy Rule 9(b)'s particularity requirement. The Judge therefore
grants Wallace's and D&A Enterprises' motions and dismisses Thomas'
fraud claims with prejudice.
Thomas did not respond to D&A Enterprises' challenge to his
negligence claim. Accordingly, Thomas has abandoned the claim.
The Judge therefore grants D&A Enterprises' motion to dismiss
Thomas' negligence claim and dismisses the claim with prejudice.
As to the Motions to Strike, the Judge finds that Thomas' fourth
amended complaint fails to identify the type of class he hopes to
certify. The only class-action provision he cites is Rule
23(b)(2); that provision cannot apply because he predominantly
requests money damages -- not equitable or injunctive relief.
Because Thomas recites some language drawn from Rules 23(b)(1) and
23(b)(3), the Judge assumes that he seeks to certify a class under
either or both of those provisions. So he must plead facts
satisfying the "threshold requirements" of Rule 23(a) and the
specific requirements of Rules 23(b)(1) or 23(b)(3).
Thomas failed to cure the deficiencies the Court identified in its
Ruling and Order. He again fails to allege facts sufficient to
satisfy the "threshold requirements" of Rule 23(a). Because he
fails to allege facts sufficient to satisfy Rule 23(a), the Judge
need not consider Rule 23(b). He grants Wallace's and D&A
Enterprises' motions and strikes all class-action allegations from
Thomas' fourth amended complaint. The wage-and-hour dispute will
not proceed as a class action.
Accordingly, Judge Jackson granted in part and denied in part the
Motions for Partial Dismissal as follows: Thomas' collective-action
claims are dismissed with prejudice; Thomas' fraud claims are
dismissed with prejudice; Thomas' negligence claim against D&A
Enterprises is dismissed with prejudice. The Motions are otherwise
denied. The Judge granted the Motions to Strike. Thomas'
class-action claims are dismissed with prejudice.
A full-text copy of the Court's June 26, 2019 Ruling and Order is
available at https://is.gd/iCus9c from Leagle.com.
De'Marcus Thomas, individually and on behalf of all simiarly
situated, Plaintiff, represented by Galen M. Hair --
hair@vhclaw.com -- Scott, Vicknair, Hair & Checki, LLC, Christopher
A. Meeks -- chrism@ssv-law.com -- Christopher Meeks, David Paul
Vicknair -- david@ssv-law.com -- Scott, Vicknair, Hair & Checki,
LLC & Deandra Nicole De Napoli, Scott, Vicknair, Hair & Checki,
LLC.
Wallace, Rush, Schmidt, Inc., other WRS, Defendant, represented by
Joelle Flannigan Evans -- joelle@semmlaw.com -- Schonekas, Evans,
McGoey & McEachin, LLC, Andrea V. Timpa -- andrea@semmlaw.com --
Schonekas, Evans, McGoey & McEachin, LLC, Jesse L. Wimberly, III,
Wimberly Law Firm, Patrick S. McGoey -- patrick@semmlaw.com --
Schonekas, Evans, McGoey & McEachin, LLC & Phillip K. Wallace --
Pkwallace@aol -- Phillip K. Wallace, PLC.
D&A Enterprises, Inc., doing business as Servpro of Fort Collins,
Defendant, represented by Thomas J. McGoey, II --
tjmcgoey@liskow.com -- Liskow & Lewis N.O. & A'Dair Ragan Flynt --
aflynt@liskow.com -- Liskow & Lewis.
WESTERN EXPRESS: Rivera Seeks to Certify Class
----------------------------------------------
In the class action lawsuit styled as MARC RIVERA, individually and
on behalf of himself and others similarly situated, the Plaintiff,
vs. WESTERN EXPRESS, INC. doing business as WESTERN EXPRESS
TRANSPORT OF CALIFORNIA, INC., a Tennessee Corporation; and DOES 1
through 100, inclusive, the Defendant, Case No.
5:18-cv-00697-JGB-SHK (C.D. Cal.), the Plaintiff will move the
Court on August 26, 2019, to certify a class of:
"all natural persons residing in the United States of America
at any time from April 5, 2013 to the present who
electronically applied for employment with Defendant WESTERN
EXPRESS, INC. ("WEX"), using either an internet browser or
mobile application and for whom a consumer report was
authorized and obtained as part of the employment
application process with disclosure documents identical in
content to those provided to Plaintiff MARC RIVERA, as shown
by WEX's corporate records."[CC]
Attorneys for the Plaintiff individually and on behalf of others
similarly situated are:
Michael D. Singer, Esq.
J. Jason Hill, Esq.
COHELAN KHOURY & SINGER
605 C Street, Suite 200
San Diego, CA 92101
Telephone: (619) 595-3001
Facsimile: (619) 595-3000
E-mail: msinger@ckslaw.com
jhill@ckslaw.com
- and -
Jonathan Lebe, Esq.
LEBE LAW APC
777 S. Alameda Street, Second Floor
Los Angeles, CA 90021
Telephone: (213) 358-7046
Facsimile: (310) 820-1258
E-mail: jon@lebelaw.com
WFS EXPRESS: Washington Ct. Stays Bautista Class Suit for 150 Days
------------------------------------------------------------------
In the case, JIRIKI BAUTISTA, an individual, ARI SILVA, an
individual, Plaintiff, v. WFS EXPRESS, a Delaware corporation,
CONSOLIDATED AVIATION SERVICES, a New York Corporation Defendants,
Case No. C18-0757 RSM (W.D. Wash.), Judge Ricardo S. Martinez of
the U.S. District Court for the Western District of Washington,
Seattle, temporarily stayed all litigation in the case for 150 days
while the Parties schedule, prepare for and complete mediation in
an attempt to reach an agreement to resolve the action.
On April 25, 2018, the Plaintiffs commenced the action by filing a
complaint in King County Superior Court against the Defendants. On
May 25, 2018, the Defendants removed the action to the U.S.
District Court for the Western District of Washington pursuant to
the Class Action Fairness Act.
In the subsequent 12 months, the Parties have participated in
substantial documentary discovery, including the production of
timekeeping and payroll data for the Defendants' employees, who
comprise the putative class. The counsel for the Parties have
conferred regarding the relevant factual and legal issues in the
case, and whether it would be preferable to participate in early
mediation before undertaking signification litigation and motions
practice relating to the validity of the Plaintiffs' claims and
theories. The Parties have also considered the Court's practice of
encouraging litigants to explore early settlement initiatives that
might shorten the duration and cost of litigation.
As result of these discussions, the Parties have agreed that before
the Plaintiffs further litigate their claims and move the Court for
class certification, and before the Defendants pursue their
defenses (including motions practice), it is in the best interest
of the Parties to explore settlement of the matter by way of
mediation. In line with this agreement, the Parties have agreed to
continue documentary and deposition discovery to allow an informed
and thorough mediation process.
The Parties believe that in the next 150 days, they can: (1) agree
upon a neutral mediator and schedule a mediation session; (2)
complete the discovery necessary to prepare for mediation; and (3)
conduct the mediation. However, they also agree that if they are
simultaneously attempting to comply with Court deadlines and
participate in motions practice, this would reduce their ability to
constructively participate in mediation.
On the basis of the foregoing, the Parties request the Court enters
an Order staying the action for all purposes for a period of at
least 150 days so that the Parties may conduct early settlement
efforts.
Having reviewed the Parties' Stipulated Motion for Temporary Stay
of Case for 150 Days, Judge Martinez granted the motion for good
cause shown within, and ordered that all litigation in the action
is temporarily stayed for 150 days from the entry of the Order to
enable the Parties to focus on and conduct additional settlement
efforts. Within 150 days, the Parties will file a status report
with the Court describing the status of the Parties' efforts to
resolve the matter. The trial date and all other deadlines are
vacated.
A full-text copy of the Court's June 28, 2019 Order is available at
https://is.gd/Q3JTfB from Leagle.com.
Jikiri Bautista, an individual & Ari Silva, an individual,
Plaintiffs, represented by Abel M. Tsegga --
abel@northshorelawgroup.com -- TG LAW GROUP, PLLC, Duncan Calvert
Turner -- dturner@badgleymullins.com -- BADGLEY MULLINS TURNER PLLC
& Mark A. Trivett -- mtrivett@badgleymullins.com -- BADGLEY MULLINS
TURNER PLLC.
WFS Express, a Delaware corporation & Consolidated Aviation
Services, a New York corporation, Defendants, represented by
Kathryn S. Rosen -- katierosen@dwt.com -- DAVIS WRIGHT TREMAINE,
Paula L. Lehmann -- paulalehmann@dwt.com -- DAVIS WRIGHT TREMAINE &
N. Joseph Wonderly -- joewonderly@dwt.com -- DAVIS WRIGHT
TREMAINE.
WORLD WRESTLING: Appellate Briefs Due October 7
-----------------------------------------------
World Wrestling Entertainment, Inc. said in its Form 10-Q Report
filed with the Securities and Exchange Commission on July 25, 2019,
for the quarterly period ended June 30, 2019, that the company's
brief will be filed on or before October 7, 2019.
On October 23, 2014, a lawsuit was filed in the U. S. District
Court for the District of Oregon, entitled William Albert Haynes
III, on behalf of himself and others similarly situated, v. World
Wrestling Entertainment, Inc.
This complaint was amended on January 30, 2015 and alleged that the
Company ignored, downplayed, and/or failed to disclose the risks
associated with traumatic brain injuries suffered by WWE's
performers and seeks class action status.
On March 31, 2015, the Company filed a motion to dismiss the first
amended class action complaint in its entirety or, if not
dismissed, to transfer the lawsuit to the U.S. District Court for
the District of Connecticut.
Without addressing the merits of the Company's motion to dismiss,
the Court transferred the case to Connecticut on June 25, 2015. The
plaintiffs filed an objection to such transfer, which was denied on
July 27, 2015.
On January 16, 2015, a second lawsuit was filed in the U.S.
District Court for the Eastern District of Pennsylvania, entitled
Evan Singleton and Vito LoGrasso, individually and on behalf of all
others similarly situated, v. World Wrestling Entertainment, Inc.,
alleging many of the same allegations as Haynes. On February 27,
2015, the Company moved to transfer venue to the U.S. District
Court for the District of Connecticut due to forum-selection
clauses in the contracts between WWE and the plaintiffs and that
motion was granted on March 23, 2015.
The plaintiffs filed an amended complaint on May 22, 2015 and,
following a scheduling conference in which the court ordered the
plaintiffs to cure various pleading deficiencies, the plaintiffs
filed a second amended complaint on June 15, 2015. On June 29,
2015, WWE moved to dismiss the second amended complaint in its
entirety.
On April 9, 2015, a third lawsuit was filed in the U. S. District
Court for the Central District of California, entitled Russ
McCullough, a/k/a "Big Russ McCullough," Ryan Sakoda, and Matthew
R. Wiese a/k/a "Luther Reigns," individually and on behalf of all
others similarly situated, v. World Wrestling Entertainment, Inc.,
asserting similar allegations to Haynes.
The Company again moved to transfer the lawsuit to Connecticut due
to forum-selection clauses in the contracts between WWE and the
plaintiffs, which the California court granted on July 10, 2015.
On September 21, 2015, the plaintiffs amended this complaint, and,
on November 16, 2015, the Company moved to dismiss the amended
complaint.
Each of these suits seeks unspecified actual, compensatory and
punitive damages and injunctive relief, including ordering medical
monitoring. The Haynes and McCullough cases purport to be class
actions.
On February 18, 2015, a lawsuit was filed in Tennessee state court
and subsequently removed to the U.S. District Court for the Western
District of Tennessee, entitled Cassandra Frazier, individually and
as next of kin to her deceased husband, Nelson Lee Frazier, Jr.,
and as personal representative of the Estate of Nelson Lee Frazier,
Jr. Deceased, v. World Wrestling Entertainment, Inc.
A similar suit was filed in the U. S. District Court for the
Northern District of Texas entitled Michelle James, as mother and
next friend of Matthew Osborne, minor child, and Teagan Osborne, a
minor child v. World Wrestling Entertainment, Inc.
These lawsuits contain many of the same allegations as the other
lawsuits alleging traumatic brain injuries and further allege that
the injuries contributed to these former talents' deaths.
WWE moved to transfer the Frazier and Osborne lawsuits to the U.S.
District Court for the District of Connecticut based on
forum-selection clauses in the decedents' contracts with WWE, which
motions were granted by the respective courts.
On November 23, 2015, amended complaints were filed in Frazier and
Osborne, which the Company moved to dismiss on December 16, 2015
and December 21, 2015, respectively. On November 10, 2016, the
Court granted the Company's motions to dismiss the Frazier and
Osborne lawsuits in their entirety.
On June 29, 2015, the Company filed a declaratory judgment action
in the U. S. District Court for the District of Connecticut
entitled World Wrestling Entertainment, Inc. v. Robert Windham,
Thomas Billington, James Ware, Oreal Perras and various John and
Jane Does seeking a declaration against these former performers
that their threatened claims related to alleged traumatic brain
injuries and/or other tort claims are time-barred.
On September 21, 2015, the defendants filed a motion to dismiss
this complaint, which the Company opposed.
The Court previously ordered a stay of discovery in all cases
pending decisions on the motions to dismiss.
On January 15, 2016, the Court partially lifted the stay and
permitted discovery only on three issues in the case involving
Singleton and LoGrasso. Such discovery was completed by June 1,
2016. On March 21, 2016, the Court issued a memorandum of decision
granting in part and denying in part the Company's motions to
dismiss the Haynes, Singleton/LoGrasso, and McCullough lawsuits.
The Court granted the Company's motions to dismiss the Haynes and
McCullough lawsuits in their entirety and granted the Company's
motion to dismiss all claims in the Singleton/LoGrasso lawsuit
except for the claim of fraud by omission.
On March 22, 2016, the Court issued an order dismissing the Windham
lawsuit based on the Court's memorandum of decision on the motions
to dismiss. On April 4, 2016, the Company filed a motion for
reconsideration with respect to the Court's decision not to dismiss
the fraud by omission claim in the Singleton/LoGrasso lawsuit and,
on April 5, 2016, the Company filed a motion for reconsideration
with respect to the Court dismissal of the Windham lawsuit.
On July 21, 2016, the Court denied the Company's motion in the
Singleton/LoGrasso lawsuit and granted in part the Company's motion
in the Windham lawsuit.
On April 20, 2016, the plaintiffs filed notices of appeal of the
Haynes and McCullough lawsuits. On April 27, 2016, the Company
moved to dismiss the appeals for lack of appellate jurisdiction,
which motions were granted, and the appeals were dismissed with
leave to appeal upon the resolution of all of the consolidated
cases.
The Company filed a motion for summary judgment on the sole
remaining claim in the Singleton/LoGrasso lawsuit, which was
granted on March 28, 2018. The Company also filed a motion for
judgment on the pleadings against the Windham defendants.
Lastly, on July 18, 2016, a lawsuit was filed in the U.S. District
Court for the District of Connecticut, entitled Joseph M.
Laurinaitis, et al. vs. World Wrestling Entertainment, Inc. and
Vincent K. McMahon, individually and as the trustee of certain
trusts.
This lawsuit contains many of the same allegations as the other
lawsuits alleging traumatic brain injuries and further alleges,
among other things, that the plaintiffs were misclassified as
independent contractors rather than employees denying them, among
other things, rights and benefits under the Occupational Safety and
Health Act (OSHA), the National Labor Relations Act (NLRA), the
Family and Medical Leave Act (FMLA), federal tax law, and various
state Worker's Compensation laws.
This lawsuit also alleges that the booking contracts and other
agreements between the plaintiffs and the Company are
unconscionable and should be declared void, entitling the
plaintiffs to certain damages relating to the Company's use of
their intellectual property.
The lawsuit alleges claims for violation of RICO, unjust
enrichment, and an accounting against Mr. McMahon. The Company and
Mr. McMahon moved to dismiss this complaint on October 19, 2016.
On November 9, 2016, the Laurinaitis plaintiffs filed an amended
complaint. On December 23, 2016, the Company and Mr. McMahon moved
to dismiss the amended complaint. On September 29, 2017, the Court
issued an order on the motion to dismiss pending in the Laurinaitis
case and on the motion for judgment on the pleadings pending in the
Windham case.
The Court reserved judgment on the pending motions and ordered that
within thirty-five (35) days of the date of the order the
Laurinaitis plaintiffs and the Windham defendants file amended
pleadings that comply with the Federal Rules of Civil Procedure.
The Court further ordered that each of the Laurinaitis plaintiffs
and the Windham defendants submit to the Court for in camera review
affidavits signed and sworn under penalty of perjury setting forth
facts within each plaintiff's or declaratory judgment-defendant's
personal knowledge that form the factual basis of their claim or
defense. On November 3, 2017, the Laurinaitis plaintiffs filed a
second amended complaint.
The Company and Mr. McMahon believe that the second amended
complaint failed to comply with the Court's September 29, 2017
order and otherwise remained legally defective for all of the
reasons set forth in their motion to dismiss the amended complaint.
Also on November 3, 2017, the Windham defendants filed a second
answer. On November 17, 2017, the Company and Mr. McMahon filed a
response that, among other things, urged the Court to grant the
motion for judgment on the pleadings against the Windham defendants
and dismiss the Laurinaitis plaintiffs' complaint with prejudice
and award sanctions against the Laurinaitis plaintiffs' counsel
because the amended pleadings failed to comply with the Court's
September 29, 2017 order and the Federal Rules of Civil Procedure.
On September 17, 2018, the Court granted the motion to dismiss
filed by the Company and Mr. McMahon in the Laurinaitis case in its
entirety, awarded sanctions against the Laurinaitis plaintiffs'
counsel, and granted the Company's motion for judgment on the
pleadings against the Windham defendants. The plaintiffs have
attempted to appeal these decisions.
On November 16, 2018, the Company moved to dismiss all of the
appeals, except for the appeal of the dismissal of the Laurinaitis
case, for being filed untimely.
On April 4, 2019, the Second Circuit issued an order referring the
Company's motions to dismiss to the panel that will determine the
merits of the appeals and directing the plaintiffs-appellants to
file a scheduling notification letter indicating the date on which
they will file their opening briefs.
The plaintiffs-appellants' opening brief was filed on July 8, 2019.
The Company's brief will be filed on or before October 7, 2019.
WWE said, "The Company believes all claims and threatened claims
against the Company in these various lawsuits were prompted by the
same plaintiffs' lawyer and that all are without merit. The Company
intends to continue to defend itself against the attempt to appeal
these decisions vigorously."
World Wrestling Entertainment, Inc., an integrated media and
entertainment company, engages in the sports entertainment business
in North America, Europe, the Middle East, Africa, the Asia
Pacific, and Latin America. It operates in three segments: Media,
Live Events, and Consumer Products. The company was founded in 1980
and is headquartered in Stamford, Connecticut.
Asbestos Litigation
ASBESTOS UPDATE: 1 Asbestos Suit Filed in Alameda Court on Aug. 2
-----------------------------------------------------------------
The Northern California Record reported that the Alameda County
Superior Court reported the following activity in the suit brought
by Bryan Navarro, Lucia A Navarro and Paul Navarro against Advance
Stores Company on Aug. 2: 'Complaint Asbestos Filed.' Case number
RG19029800 was filed in the Alameda County Superior Court on Aug.
2.
ASBESTOS UPDATE: 1 Asbestos Suit Filed in St. Louis Ct. on July 26
------------------------------------------------------------------
Te St. Louis Record reported that the following cases categorized
as "asbestos" cases were on the docket in the St. Louis 22nd
Judicial Circuit Court on July 26:
* Dennis Ray Jr Peoples v. General Gasket Corporation;
Vanderbilt Minerals LLC, 1922-CC10983
Randy Lee Gori (plaintiff's attorney)
ASBESTOS UPDATE: Appeals Ct. Denies Attempt to Circumvent Discovery
-------------------------------------------------------------------
Zach Schlein, writing for Law.com, reported that a Florida appeals
court has dismissed a petition from Florida Power & Light Co. in a
lawsuit over the company's alleged noncompliance with asbestos
regulations.
The Third District Court of Appeal dismissed FPL's appeal in a
premises liability and negligence suit brought against the company
in Miami-Dade Circuit Court.
The plaintiff, Larry Cook, has alleged FPL and other businesses
named in his 2017 complaint are liable for his terminal lung
cancer. His suit purports Cook's condition was caused in part by
exposure to asbestos while working on premises owned or controlled
by FPL from the 1960s through 1980s.
FPL appealed to the Third DCA after a lower court denied its two
motions for protective orders against depositions. As noted by the
appellate court, the plaintiff sought testimony from an FPL
corporate representative who could detail the company's history and
interactions with asbestos-containing products, as well as its
adherence to occupational health and safety laws.
"FPL moved for protective orders from each notice and in support,
submitted an affidavit prepared by its senior attorney, stating
that compliance and production would require FPL to expend
significant time, be voluminous and would cost millions of
dollars," the opinion said.
The appellate panel denied FPL's petition after determining the
court did not have jurisdiction in the matter as the company would
not suffer irreparable harm by complying with the orders.
"As the trial court expressly instructed, FPL is required only to
designate a corporate representative who is able to testify about
matters known or reasonably available to the organization," the
opinion said. "Although FPL may have meritorious arguments in favor
of a protective order at some later time in the litigation when the
record is more developed, the record before us does not reflect
that the orders under review amount to to irreparable harm."
FPL's outside counsel, Palm Beach Gardens lawyer Charles
Schlumberger, told the Daily Business Review he was no longer on
the case following his March retirement and declined to comment
further. FPL's in-house counsel, Joseph Ianno Jr. and Kevin Ivan
Christopher Donaldson, did not return press inquiries by deadline.
Cook is being represented by Ferraro Law Firm attorneys Mathew
Daniel Gutierrez and Juan Bauta, who said he was "very happy" with
the Third DCA's ruling.
"The takeaway is that the law requires companies to give
discovery," said Bauta, a Miami-based litigator. "They can't just
sit back and say, 'It's too expensive so we're not going to look
into this stuff.'"
Bauta said even if FPL doesn't employ anyone who worked
contemporaneously with Cook, the the company has a responsibility
to present someone who can testify about the plaintiff's work
conditions.
"Our argument was it's hard to believe the operators of a nuclear
power plant are that disorganized, and if they are, God help us,"
Bauta said. "If they really have no organization to their documents
. . . that's kind of a scary proposition."
ASBESTOS UPDATE: Bestwall Beats Bid to Toss Asbestos Bankruptcy
---------------------------------------------------------------
Bloomberg reported that a Georgia-Pacific LLC affiliate facing
thousands of asbestos claims beat the alleged victims' efforts to
dismiss its bankruptcy case.
Bestwall LLC, which was created to channel and handle more than
64,000 asbestos exposure claims against paper-product maker
Georgia-Pacific, can continue to negotiate the terms of a
claimants' trust instead of having to litigate all the claims in
courtrooms around the country, according to U.S. Bankruptcy Judge
Laura T. Beyer's opinion filed July 29.
ASBESTOS UPDATE: Crane Co. Had 28,851 Pending Claims at June 30
---------------------------------------------------------------
Crane Co. has 28,851 pending asbestos-related claims as of June 30,
2019, according to the Company's Form 8-K filed with the U.S.
Securities and Exchange Commission on July 23, 2019.
The Company states, "Of the 28,851 pending claims as of June 30,
2019, approximately 18,000 claims were pending in New York,
approximately 100 claims were pending in Texas, approximately 300
claims were pending in Mississippi, and approximately 200 claims
were pending in Ohio, all jurisdictions in which legislation or
judicial orders restrict the types of claims that can proceed to
trial on the merits.
"We have tried several cases resulting in defense verdicts by the
jury or directed verdicts for the defense by the court. We further
have pursued appeals of certain adverse jury verdicts that have
resulted in reversals in favor of the defense."
A full-text copy of the Form 8-K is available at
https://is.gd/RxyMi8
ASBESTOS UPDATE: J&J Would Rather Fight Cancer-Warning Suit
-----------------------------------------------------------
Edvard Pettersson, writing for Bloomberg, reported that Johnson &
Johnson wants its day in court to fight a lawsuit intended to force
it to put a cancer warning on the company's Baby Powder. So, it's
urging a judge not to let a law firm that's been arguing for the
warning to suddenly drop the lawsuit.
It's an unusual twist for a defendant not to go along with
plaintiffs who want their case dismissed. But it's being fought
because J&J doesn't want to give the Lanier Law Firm a chance to
refile the suit with more defendants.
J&J says it expects to win a decision that its talc products,
including Baby Powder, don't need a warning label under
California's Proposition 65 law, which requires it for products
that contain known carcinogens. A hearing on the dismissal request
is scheduled Monday in Los Angeles federal court.
Texas lawyer W. Mark Lanier has been one of J&J's most formidable
adversaries in bringing lawsuits on behalf of people who claim Baby
Powder can cause ovarian cancer. Last year, Lanier won a $4.69
billion jury verdict in a Missouri state court on behalf of 22
women and their families who blamed their illnesses on the presence
of asbestos in J&J's talc products.
The New Brunswick, New Jersey-based health care conglomerate faces
more than 14,000 lawsuits accusing it of hiding the health risks of
Baby Powder for more than 40 years to protect one of its best-known
brands. The U.S. Justice Department is also pursuing a criminal
investigation into whether the company lied to the public about
possible cancer risks, according to people familiar with the
matter.
J&J insists its talc products are safe and that numerous scientific
tests, including those done by the U.S. Food and Drug
Administration, have shown that they aren't contaminated with
asbestos.
The California Prop. 65 lawsuit was an attempt to tip the scales in
the other Baby Powder cases, the company said.
"The Lanier Law Firm commenced this action as a transparent
tactical maneuver to improve their litigation position in
personal-injury actions that they have pending against defendants
across the country," J&J said in a July 8 filing opposing the
dismissal request. "They saw Proposition 65 as a potential vehicle
to obtain a court-ordered cancer warning on defendants' talcum
powder products."
The company argues that Lanier's firm wants to walk away from the
case to avoid an adverse ruling. According to J&J, it's likely that
it will win because quarterly tests by an outside laboratory have
found no asbestos in its talc supply. In addition, the company
says, the disputed amount of asbestos the plaintiffs' expert found
in Baby Powder would only result in potential exposure from
inhalation well within California's safety guidelines.
If U.S. District Judge George Wu denies Lanier's request, and if he
doesn't decide himself that based on the evidence J&J's Baby Powder
doesn't need a cancer warning, the case could head for a jury trial
in October.
"In general, Prop. 65 defendants contesting dismissals are rare,"
said Robert Falk, an attorney with Morrison and Foerster LLP in San
Francisco who isn't involved in the case. "Defendants having a high
level of confidence that they will prevail on a Prop. 65 claim by
means of either summary judgment or, if necessary, a trial are not"
rare.
California's Proposition 65, a 1986 voter-approved initiative,
requires that manufacturers and retailers disclose the presence of
carcinogens in their products or pay a $2,500 fine per violation.
The law has created a cottage industry for lawyers who sue to
enforce it, usually without anyone claiming to have suffered an
injury from the lack of disclosure. The cases are usually settled
for relatively little money, most of which ends up with the
lawyers.
The Prop. 65 lawsuit filed last year against J&J in California
state court was different because it included seven named
plaintiffs who either are suffering from ovarian cancer or
represent individuals who died from it.
Individual Claims
Because the lawsuit included individual damage claims, J&J was
allowed to move the case to federal court where, unlike in state
court, a plaintiff needs a unanimous jury verdict to win.
According to J&J, four of the five plaintiffs it was able to
question under oath didn't even know they were part of a lawsuit.
The Lanier Firm said in its request for dismissal that "Shower to
Shower," one of the products it claims needs a cancer warning, is
now sold by Valeant Pharmaceuticals' North American unit. It wants
to bring a new lawsuit to include Valeant as a defendant, and
possibly Claire's Store Inc. The FDA earlier this year said that
some of Claire's products tested positively for asbestos.
The law firm denied J&J's allegation that it's request to the
dismiss the case was a "tactical maneuver."
"We believe Valeant is a necessary party to the litigation and J&J
refuses to allow us to add them into the current suit," Lanier
said. "We believe firmly that J&J has asbestos in its talc. Our
position on that hasn't changed."
The case is Luna v. Johnson & Johnson, 18-cv-04830, U.S. District
Court, Central District of California (Los Angeles).
ASBESTOS UPDATE: J&J, Colgate Get Jury to Reject Hayes Talc Claims
------------------------------------------------------------------
Jef Feeley, writing for Bloomberg, reported that Johnson & Johnson
and Colgate-Palmolive Co. persuaded a Kentucky jury to reject
claims that asbestos in the companies talc-based products was
responsible for a woman's death.
Jurors in a Louisville state court deliberated about a half hour
before finding J&J and Colgate weren't liable for Donna Ann Hayes's
cancer. Hayes died in 2016 of mesothelioma, an asbestos-linked
cancer.
J&J says the ruling is its sixth win in a wave of trials involving
people who claim the company hid that its iconic baby powder was
contaminated with asbestos. Juries in at least half a dozen other
cases ruled for the plaintiffs, with a St. Louis panel awarding
$4.7 billion in damages to 22 women last year. The company
appealed.
A jury in New Jersey is hearing evidence in another such case. J&J
faces more than 15,000 lawsuits over the allegedly contaminated
products, according to securities filings.
"We are pleased the jury rejected the claim that Johnson's Baby
Powder contained asbestos and caused the plaintiff's disease," Kim
Montagnino, a J&J spokeswoman, said in an emailed statement.
Allison Klimerman, a Colgate spokeswoman, didn't immediately return
a call for comment after regular business hours.
Hayes, a travel agent, was in her early 70s when she was diagnosed
with mesothelioma, according to court testimony. She used both
J&J's Baby Powder and Colgate's Cashmere Bouquet powder at
different times in her life, according to Joe Satterley, her
lawyer.
Her family claimed she developed the fatal illness because she
inhaled the asbestos in the products. During the two-week trial,
experts hired by the family testified that samples of Baby Powder
and Cashmere Bouquet tested positively for asbestos. Talc was also
found in Hayes's lymph tissue, according to trial testimony.
"We're disappointed the jury didn't see the evidence the way we saw
it," Joe Satterley, the lawyer for Hayes's family, said in an
interview.
J&J's and Colgate's lawyers said Hayes's cancer wasn't tied to the
powders, but came from regular environmental factors. The
companies' experts testified that talc used in the products came
from asbestos-free mines and dismissed the plaintiffs experts'
findings, saying they were mistaken when they identified harmless
minerals as the carcinogen.
The case is Hayes v. Colgate-Palmolive, 16-ci-03503, 30th Judicial
District of Kentucky (Louisville).
Cynthia Hayes, estate of Donna Ann Hayes, Plaintiff, represented by
Brenton D. Stanley, Morgan & Morgan Louisville, PLLC, J. Garrett
Cambron, Satterley & Kelley PLLC, James E. Kiser, Satterley &
Kelley PLLC, Joseph D. Satterley, Satterley & Kelley PLLC, Paul J.
Ivie, Satterley & Kelley PLLC & Paul J. Kelley, Satterley & Kelley
PLLC.
Colgate-Palmolive Company, Defendant, represented by Brad E. Estes,
Quinn Emanuel Urquhart Oliver & Sullivan, LLP, Frederick R.
Bentley, III, Stites & Harbison, PLLC, J.D. Horton, Quinn Emanuel
Urquhart Oliver & Sullivan, LLP, Matthew W. Breetz, Stites &
Harbison, PLLC & Nathan Guest, Quinn Emanuel Urquhart Oliver &
Sullivan, LLP.
Johnson and Johnson, Defendant, represented by Ashley W. Spires,
Lewis Brisbois Bisgaard & Smith, LLP, Brantley C. Rowlen, Lewis
Brisbois Bisgaard & Smith, LLP, Carol D. Browning, Stites &
Harbison, PLLC & R. Scott Masterson, Lewis Brisbois Bisgaard &
Smith, LLP.
Beacon CMP Corp., Defendant, represented by Berlin Tsai, Lynch,
Cox, Gilman & Goodman, P.S.C.
Honeywell International, Inc., Individually and As Successor in
Interest to Allied Signal Corp., Allied Chemical, Wilputte Coke
Oven and The Bendix Corporation, Defendant, represented by Scott
Allen Davidson, Boehl Stopher & Graves, LLP.
Carlisle Industrial Brake and Friction, Inc., Defendant,
represented by Patrick W. Gault, Napier Gault Schupach & Stevens
PLC.
Moog Louisville Warehouse, Inc., doing business as Bumper to Bumper
Auto Parts, Doug's Acquisition Company, No. 1, doing business as
Bumper to Bumper Auto Parts & Bumper to Bumper Auto Parts,
Defendants, represented by Amy D. Cubbage, Ackerson & Yann PSC.
ASBESTOS UPDATE: J. Lagrone Files Suit in Delaware
--------------------------------------------------
In the case captioned JOHN LAGRONE PLAINTIFF, v. 84 LUMBER COMPANY;
ACE HARDWARE CORPORATION; AMTICO USA, LLC; BIRD, INC.; CERTAINTEED
CORPORATION; DOMCO PRODUCTS TEXAS INC., A/K/A DOMCO INC. FLOOR
PRODUCTS; DAP, INC., N-K-A LA MIRADA PRODUCT, INC.; KARNAK
CORPORATION; MANNINGTON MILLS, INC; METROPOLITAN LIFE INSURANCE
COMPANY; PPG ARCHITECTURAL FINISHES, INC., AS SUCCESSOR-IN-
INTEREST TO AKZO NOBEL PAINTS, LLC F/K/A THE GLIDDEN COMPANY; UNION
CARBIDE CORPORATION; DEFENDANTS, Case No. N19C-05-244 ASB filed
with the Superior Court of the State of Delaware, the Plaintiff
alleged that he was wrongfully exposed to asbestos from products
mixed, mined, manufactured, distributed, sold, removed, installed,
and/or used by the Defendants, and that, as a result of the
Defendants' wrongful conduct, the Plaintiff developed lung cancer
and other asbestos-related injuries and diseases.
The Plaintiff, a resident of Davenport, Indiana, alleged that he
experienced occupational and bystander exposure to asbestos while
he worked as a construction worker in various locations in
Mississippi from 1976 to 1982.
Attorney for Plaintiff:
R. Joseph Hrubiec, Esq.
NAPOLI SHKOLNIK LLC
919 North Market Street, Suite 1801
Wilmington, DE 19801
Telephone: (302) 330-8025
Email: RHrubiec@NapoliLaw.com
ASBESTOS UPDATE: K. Mason Files Suit in Delaware
------------------------------------------------
Plaintiff, KEVIN MASON, a a resident of Winlock, Washington, filed
a lawsuit with the Superior Court of the State of Delaware alleging
that he was wrongfully exposed to asbestos from asbestos-containing
products which were mixed, mined, manufactured, distributed, sold,
removed, installed and/or used by the Defendants, which include
Honeywell International, Inc., and that as a result of the
Defendants' wrongful conduct, the Plaintiff developed lung cancer
and other asbestos-related injuries and diseases.
The Plaintiff added he experienced occupational and bystander
exposure to asbestos while he worked as a boiler technician in San
Diego, California at U.S. Navy while serving onboard the USS
Consolation and USS Horn from 1976 to 1997, as well as performing
automotive repairs on personal vehicles in St. Helens, Oregon and
other cities and states from 1972 to 1980.
The case is KEVIN MASON, AND TERESA MASON, Plaintiffs, v. AIR &
LIQUID SYSTEMS CORPORATION, A/K/A BUFFALO PUMPS, INC.; BORG-WARNER
MORSE TEC, LLC. AS SUCCESSOR-BY-MERGER TO BORG-WARNER CORPORA TION;
BW/IP INTERNATIONAL, INC. (INDIVIDUALLY AND AS
SUCCESSOR-IN-INTEREST TO BYRON JACKSON PUMPS); CBS CORPORATION, A
DELAWARE CORP. F/K/A VIACOM INC., SUCCESSOR BY MERGER TO CBS CORP.,
A PENNSYLVANIA CORP. F/K/A WESTINGHOUSE ELECTRIC CORP.; CRANE CO.;
FMC CORPORATION INDIVIDUALLY & AS SUCCESSOR TO NORTHERN PUMP
COMPANY, COFFIN, CHICAGO PUMP COMPANY; FOSTER WHEELER ENERGY
CORPORA TION; GENERAL ELECTRIC COMPANY; GOULDS PUMPS, INC.;
GRINNELL LLC, FORMERLY KNOWN AS GRINNELL CORPORATION, SUED
INDIVIDUALLY AND AS SUCCESOR IN INTEREST TO GRINNELL FIRE
PROTECTION SYSTEMS COMPANY, INC.; HONEYWELL INTERNATIONAL, INC.,
F/K/A ALLIEDSIGNAL, INC., F/K/A THE BENDIX CORPORA TION; IMO
INDUSTRIES, INC.; INGERSOLL-RAND COMPANY; ITT CORPORATION;
METROPOLITAN LIFE INSURANCE COMPANY; TRANE US, INC., F/K/A AMERICAN
STANDARD, INC.; WARREN PUMPS, LLC; Defendants, Case No. N19C-05-208
ASB.
Attorney for Plaintiff:
R. Joseph Hrubiec, Esq.
NAPOLI SHKOLNIK LLC
919 North Market Street, Suite 1801
Wilmington, DE 19801
Telephone: (302) 330-8025
ASBESTOS UPDATE: Lennox Int'l. Paid $1.8MM for Lawsuits in 1H 2019
------------------------------------------------------------------
Lennox International Inc. has recorded US$1.8 million expense, net
of probable insurance recoveries, for known and future
asbestos-related litigation for the six months ended June 30, 2019,
according to the Company's Form 10-Q filing with the U.S.
Securities and Exchange Commission for the quarterly period ended
June 30, 2019.
The Company states, "We are involved in a number of claims and
lawsuits incident to the operation of our businesses. Insurance
coverages are maintained and estimated costs are recorded for such
claims and lawsuits, including costs to settle claims and lawsuits,
based on experience involving similar matters and specific facts
known.
"Some of these claims and lawsuits allege personal injury or health
problems resulting from exposure to asbestos that was integrated
into certain of our products. We have never manufactured asbestos
and have not incorporated asbestos-containing components into our
products for several decades. A substantial majority of these
asbestos-related claims have been covered by insurance or other
forms of indemnity or have been dismissed without payment. The
remainder of our closed cases have been resolved for amounts that
are not material, individually or in the aggregate. Our defense
costs for asbestos-related claims are generally covered by
insurance; however, our insurance coverage for settlements and
judgments for asbestos-related claims varies depending on several
factors and are subject to policy limits, so we may have greater
financial exposure for future settlements and judgments.
"For the three months ended June 30, 2019 and 2018, expense for
asbestos-related litigation was US$0.4 million and US$(0.2) million
and for the six months ended June 30, 2019 and 2018, expense for
asbestos-related litigation was US$1.8 million and US$1.9 million,
respectively, net of probable insurance recoveries, for known and
future asbestos-related litigation and is recorded in Losses
(gains) and other expenses, net in the Consolidated Statements of
Operations."
A full-text copy of the Form 10-Q is available at
https://is.gd/NoH6Jx
ASBESTOS UPDATE: Man Awarded $3MM Over Renovation Exposure
----------------------------------------------------------
The Guardian reported that a terminally ill South Australian man
has been awarded a record $3m payout after he was exposed to
asbestos dust, including while renovating his home.
Matthew Werfel, 42, will receive $3,077,187 -- the largest amount
ever awarded to an asbestos victim in Australia -- after the
building materials company James Hardie was found to have failed to
warn the public about risks posed by their cement products.
Lawyers for Werfel lodged a claim against James Hardie -- now known
as Amaca -- in the South Australian employment tribunal seeking
damages after he was diagnosed with mesothelioma in 2017.
Werfel had been exposed to asbestos dust while working for a
fencing contractor as a teenager and later in the mid-2000s during
renovations on his Pooraka home.
Over three or four weekends, he sanded and painted the home,
unaware it was constructed from asbestos cement sheets.
"By the time of Mr Werfel's exposure there can be no doubt that
Amaca knew the risk that was posed to renovators," Judge Leonie
Farrell said in her judgment on Tuesday.
In addition to awarding compensation for pain and suffering, future
economic loss, medical expenses and loss of life expectancy,
Farrell imposed exemplary damages on the company, as a deterrent to
other firms.
"Amaca breached its duty of care to a large class of Australians,
of which Mr Werfel was a member," Farrell said.
"The magnitude of the risk of members of this class contracting
mesothelioma was vast. The consequences of the risk were the deaths
of many Australians. The probability of the risk occurring was
certain.
"It had occurred in the past and the numbers were increased to the
knowledge of Amaca. Amaca had the resources with which it could and
should have taken steps to minimise or obviate the risk of death in
this class."
Werfel welcomed the payout but feared many home renovators were
still exposed to the dangerous fibre.
"On the one hand, this outcome is a great relief, knowing that my
family will be taken care of," he said in a statement.
"But it's heartbreaking to think how many people continue to be
exposed, without their knowledge, to asbestos in their homes and
workplaces."
His lawyer Annie Hoffman said the case had significant implications
for people exposed to asbestos in their homes, workplaces and in
the community.
She said the case confirmed James Hardie's duty of care continues
even decades later.
ASBESTOS UPDATE: Pentair Units Had 670 Pending Claims at June 30
----------------------------------------------------------------
Pentair plc's subsidiaries are defending themselves against
approximately 670 pending claims related to asbestos matters as of
June 30, 2019, according to the Company's Form 10-Q filing with the
U.S. Securities and Exchange Commission for the quarterly period
ended June 30, 2019.
The Company states, "Our subsidiaries and numerous other
unaffiliated companies are named as defendants in personal injury
lawsuits based on alleged exposure to asbestos-containing
materials. These cases typically involve product liability claims
based primarily on allegations of manufacture, sale or distribution
of industrial products that either contained asbestos or were
attached to or used with asbestos-containing components
manufactured by third-parties. Each case typically names between
several dozen to more than a hundred corporate defendants. Our
historical strategy has been to mount a vigorous defense aimed at
having unsubstantiated suits dismissed, and, where appropriate,
settling suits before trial. Although a large percentage of
litigated suits have been dismissed, we cannot predict the extent
to which we will be successful in resolving lawsuits in the
future.
"As of June 30, 2019, there were approximately 670 claims
outstanding against our subsidiaries. This amount is not adjusted
for claims that are not actively being prosecuted, identified
incorrect defendants, or duplicated other actions, which would
ultimately reflect our current estimate of the number of viable
claims made against us, our affiliates, or entities for which we
assumed responsibility in connection with acquisitions or
divestitures. In addition, the amount does not include certain
claims pending against third parties for which we have been
provided an indemnification."
A full-text copy of the Form 10-Q is available at
https://is.gd/s3kOCl
ASBESTOS UPDATE: PPG Industries Had 490 Open Claims at June 30
--------------------------------------------------------------
PPG Industries, Inc. said in its Form 10-Q filing with the U.S.
Securities and Exchange Commission for the quarterly period ended
June 30, 2019, that it is aware of approximately 490 open and
active asbestos-related claims pending against the Company and
certain of its subsidiaries.
The Company states, "These claims consist primarily of non-PC
Relationship Claims and claims against a subsidiary of PPG. The
Company is defending the remaining open and active claims
vigorously.
"Since April 1, 2013, a subsidiary of PPG has been implicated in
claims alleging death or injury caused by asbestos-containing
products manufactured, distributed or sold by a North American
architectural coatings business or its predecessors which was
acquired by PPG. All such claims have been either served upon or
tendered to the seller for defense and indemnity pursuant to
obligations undertaken by the seller in connection with the
Company's purchase of the North American architectural coatings
business. The seller has accepted the defense of these claims
subject to the terms of various agreements between the Company and
the seller. The seller's defense and indemnity obligations in
connection with newly filed claims ceased with respect to claims
filed after April 1, 2018.
"PPG has established reserves totaling approximately US$180 million
for asbestos-related claims that would not be channeled to the
Trust which, based on presently available information, we believe
will be sufficient to encompass all of PPG's current and potential
future asbestos liabilities. These reserves include a US$162
million reserve established in 2009 in connection with an amendment
to the PC plan of reorganization. These reserves, which are
included within Other liabilities on the accompanying condensed
consolidated balance sheets, represent PPG's best estimate of its
liability for these claims. PPG does not have sufficient current
claim information or settlement history on which to base a better
estimate of this liability in light of the fact that the Bankruptcy
Court's injunction staying most asbestos claims against the Company
was in effect from April 2000 through May 2016. PPG will monitor
the activity associated with its remaining asbestos claims and
evaluate, on a periodic basis, its estimated liability for such
claims, its insurance assets then available, and all underlying
assumptions to determine whether any adjustment to the reserves for
these claims is required.
"The amount reserved for asbestos-related claims by its nature is
subject to many uncertainties that may change over time, including
(i) the ultimate number of claims filed; (ii) the amounts required
to resolve both currently known and future unknown claims; (iii)
the amount of insurance, if any, available to cover such claims;
(iv) the unpredictable aspects of the litigation process, including
a changing trial docket and the jurisdictions in which trials are
scheduled; (v) the outcome of any trials, including potential
judgments or jury verdicts; (vi) the lack of specific information
in many cases concerning exposure for which PPG is allegedly
responsible, and the claimants' alleged diseases resulting from
such exposure; and (vii) potential changes in applicable federal
and/or state tort liability law. All of these factors may have a
material effect upon future asbestos-related liability estimates.
As a potential offset to any future asbestos financial exposure,
under the PC plan of reorganization PPG retained, for its own
account, the right to pursue insurance coverage from certain of its
historical insurers that did not participate in the PC plan of
reorganization. While the ultimate outcome of PPG's asbestos
litigation cannot be predicted with certainty, PPG believes that
any financial exposure resulting from its asbestos-related claims
will not have a material adverse effect on PPG's consolidated
financial position, liquidity or results of operations."
A full-text copy of the Form 10-Q is available at
https://is.gd/bTXTsZ
ASBESTOS UPDATE: R. Medina Files Suit in Delaware
-------------------------------------------------
Ricardo Medina, a resident of Santa Fe, New Mexico, filed a lawsuit
with the Superior Court of the State of Delaware alleging that he
was wrongfully exposed to asbestos as a result of the installation,
use, maintenance, servicing, and/or removal of the Defendants'
products.
The Plaintiff further alleged that as a result of the Defendants'
wrongful conduct, he suffers from mesothelioma. He said he first
became aware that he suffered from the disease on or about March of
2019.
Mr. Medina's former employers include, but are not limited to, the
following:
a. United States Navy - located in San Francisco and San Diego,
CA from approximately 1962 t 1966 as an Electrician;
b. TV Repair School - located in El Paso, TX in approximately
1967 as a Student;
c. General Electric - located in El Paso, TX from approximately
1970 to 1978 as a Salesman;
d. General Electric - located in El Paso, TX from approximately
1978 to 1982 as a Refrigeration Repairman;
e. Alamo Heating & Cooling - located in San Antonio, TX from
approximately 1982 to 1983 as an AC & R Technician;
f. United States Navy - located in Kingsville, TX from
approximately 1983 to 1984 as an HVAC Mechanic;
g. United States Navy - located in Corpus Christi, TX from
approximately 1985 to 1999 as an HVAC Mechanic.
The case is IN RE: ASBESTOS LITIGATION. RICARDO MEDINA, v.
Plaintiff, AIR & LIQUID SYSTEMS CORPORATION, as successor by merger
to BUFFALO PUMPS, INC.; ALLIS-CHALMERS CORPORATION PRODUCT
LIABILITY TRUST; ATWOOD & MORRILL CO., d/b/a WEIR VALVES & CONTROLS
USA, INC.; AURORA PUMP COMPANY; BURNHAM LLC, individually and as
successor to BURNHAM CORPORATION; CARRIER CORPORATION, individually
and as successor in interest to BRYANT HEATING & COOLING SYSTEMS;
CBS CORPORATION, a Delaware Corporation, f/k/a VIACOM, INC.,
successor by merger to CBS CORPORATION, a Pennsylvania Corporation,
f/k/a WESTINGHOUSE ELECTRIC CORPORATION, as successor in interest
to THE BRYANT ELECTRIC COMPANY; CRANE CO., individually and as
successor to JENKINS VALVE, INC; CROSBY VALVE, LLC; EATON
CORPORATION, individually as successor in interest to
CUTLER-HAMMER, INC.; FLOWSERVE U.S., INC., individually and solely
as successor to DURCO, DURIRON, ANCHOR DARLING, SUPERIOR GROUP,
EDWARD VOGT, VOGT VALVES, NORDSTROM VALVES, EDWARD VALVE, INC., and
ROCKWELL MANUFACTURING COMPANY; FOSTER WHEELER LLC; GARDNER DENVER,
INC.; GENERAL ELECTRIC COMPANY; GOULDS PUMPS, LLC; IMO INDUSTRIES,
INC.; ITT LLC; KOHLER COMPANY; MANNING, MAXWELL & MOORE,
INCORPORATED; PEERLESS INDUSTRIES, INC.; RHEEM MANUFACTURING
COMPANY; SCHNEIDER ELECTRIC USA, INC., individually and as
successor in interest to SQUARE D COMPANY; THE NASH ENGINEERING
CO.; VELAN VALVE CORPORATION; WARREN PUMPS, LLC; THE MARLEY-WYLAIN
COMPANY, d/b/a WEIL-MCLAIN, individually and as successor in
interest to THE WEIL-MCLAIN COMPANY, Defendants, Case No.
N19C-05-242 ASB.
Attorneys for Plaintiff:
Adam Balick, Esq.
Patrick J. Smith, Esq.
BALICK & BALICK, LLC
711 North King Street
Wilmington, DE 19801
(302) 658-4265
Email: abalick@balick.com
-- and --
Bartholomew J. Dalton, Esq.
Ipek K. Medford, Esq.
Andrew C. Dalton, Esq.
Michael C. Dalton, Esq.
DALTON & ASSOCIATES, P.A.
Cool Spring Meeting House
1106 West Tenth Street
Wilmington, DE 19806
Tel: (302) 652-2050
Email: IMedford@BDaltonlaw.com
OF COUNSEL:
WEITZ & LUXENBERG, P.C.
700 Broadway
New York, NY 10003
(212) 558-5500
ASBESTOS UPDATE: Reese Couple Files Suit in St. Louis Circuit Ct.
-----------------------------------------------------------------
The St. Louis Record reported that the following cases categorized
as "asbestos" cases were on the docket in the St. Louis 22nd
Judicial Circuit Court on July 19:
* Patricia Reese; Stanley Reese v. Cbs Corporation; Crown Cork &
Seal USA Inc.; Fmc Corporation; Gardner Denver Inc; General
Electric Company; General Gasket Corporation; Grinnell Llc;
Honeywell International Inc.; Ingersoll Rand Company; Metropolitan
Life Insurance Company; Pneumo Abex Llc; The Dow Chemical Company;
Trane Us Inc; Union Carbide Corp., 1922-CC10927
Matt C Morris (plaintiff's attorney)
ASBESTOS UPDATE: von Holzen Couple Files Suit in Delaware
---------------------------------------------------------
Richard von Holzen and Cynthia von Holzen, residents of Wisconsin,
filed a lawsuit with the Superior Court of the State of Delaware
alleging that Mr. von Holzen was wrongfully exposed to asbestos
while in the Navy serving as a fireman in the boiler rooms of the
USS Springfield and USS Tidewater from approximately the late 1960s
to the early 1970s.
As a result of the Defendants' wrongful conduct, Mr. von Holzen
developed mesothelioma and other asbestos-related injuries and
diseases.
The case is IN RE ASBESTOS LITIGATION: RICHARD VON HOLZEN AND
CYNTHIA VON HOLZEN Plaintiffs, v. AIR & LIQUID SYSTEMS CORPORATION,
individually and as successor-in-interest to BUFFALO PUMPS;
ARMSTRONG INTERNATIONAL, INC.; AURORA PUMP COMPANY; CBS CORPORATION
f/k/a VIACOM, INC. (sued as successor- by-merger to CBS CORPORATION
f/k/a WESTINGHOUSE ELECTRIC CORPORTION) and also as
successor-in-interest to BG STURTEVANT; CRANE CO.; FLOWSERVE US
INC.; FMC CORPORATION; FOSTER WHEELER ENERGY CORPORATION; GARDNER
DENVER, INC.; GENERAL ELECTRIC COMPANY; THE GOODYEAR TIRE & RUBBER
COMPANY; HOPEMAN BROTHERS, INC.; IMO INDUSTRIES, INC.;
INGERSOLL-RAND COMPANY; JERGUSON GAGE & VALVE COMPANY, d/b/a CLARK-
RELIANCE CORPORATION; JOHN CRANE, INC.; METROPOLITAN LIFE INSURANCE
COMPANY; THE NASH ENGINEERING COMPANY; VELAN VALVE CORP.; VIAD
CORP, f/k/a THE DIAL CORPORATION, individually and as successor to
GRISCOM- RUSSELL COMPANY; WARREN PUMPS, LLC; WEIR VALVES & CONTROLS
USA, INC., individually and as successor-in- interest to ATWOOD &
MORRILL CO., INC.; THE WILLIAM POWELL COMPANY; Defendants, Case No.
N19C-05-237 ASB.
Attorney for Plaintiffs:
David deBruin, Esq.
GAWTHROP GREENWOOD, PC
3711 Kennett Pike, Suite 100
Wilmington, DE 19807
Phone: 302-660-2744
Email: ddebruin@gawthrop.com
Of counsel:
William "Will" B. Allen, Esq.
DEAN OMAR BRANHAM SHIRLEY, LLP
302 N. Market Street, Suite 300
Dallas, Texas 75202
Telephone: (214) 722-5990
Facsimile: (214) 722-5991
*********
S U B S C R I P T I O N I N F O R M A T I O N
Class Action Reporter is a daily newsletter, co-published by
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Fernandez, Joy A. Agravante, Psyche A. Castillon, Julie Anne L.
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