/raid1/www/Hosts/bankrupt/CAR_Public/190917.mbx
C L A S S A C T I O N R E P O R T E R
Tuesday, September 17, 2019, Vol. 21, No. 186
Headlines
325 THIRNICBAR: Class of Bartenders Certified in Vasil FLSA Suit
658-660 AMSTERDAM: Minimum Wages for Deliver Workers Sought
ACADEMY LTD: Conditional Certification of Class in Robbins Endorsed
AIR RESOURCES: Gomez Labor Suit Seeks Unpaid Overtime Wages
ALLERGAN GROUP: Implant Patients Sue Over Product Recall
ALLIED INTERSTATE: Seeks Approval of $130K Accord in Garcia Suit
ARCHIPEL CAPITAL: Court Denies Class Cert. Bid in Amerio Suit
ASCENSIONPOINT RECOVERY: Krajenka Moves for Class Certification
ASSURED AUTO: Fabrikant Files Suit Under TCPA Over Robocalls
BANK OF AMERICA: Apilado Suit Remanded to Circuit Court
BANK OF AMERICA: Nagy Sues over Unwanted Cellular Telephone Calls
BIG TOP: Settlement Conference in Pizano Suit Cont'd to Sept. 18
BLUESTEM BRANDS: Court OKs $1MM Class Settlement in Williams
CAPITAL ONE: Mallh Sues over Financial Data Breach
CARRIZO OIL: Sabatini Says Registration Statement Misleading
CENTER LINE, MI: Bid for Summary Judgment in Halpern Partly Granted
CERVERA REAL: Santamaria Seeks Minimum & OT Wages for Realtors
CHARTER COMMUNICATIONS: Bid to Remand Harper to State Court Denied
CHINATOWN TAKE-OUT: Appeals Order in Li FLSA Suit to 2nd Cir.
CONSTELLATION ENERGY: Court Dismisses Overcharging Suit
DIRECT ENERGY: Court Denies Shelton TCPA Suit Dismissal
DIRECT ENERGY: Court Denies Shelton TCPA Suit Dismissal
DYNAMIC RECOVERY: Seeks Approval of $130K Hussein Suit Settlement
E. MISHAN & SONS: Mack et al Sue over Sale of Non-Stick Pans
EQUIFAX INC: Molinari FCRA Suit Dismissed Without Prejudice
EZ ENERGY: Igboeli-Ilodi Files Suit Over Unauthorized Fax Ads
FIELDWORK CHICAGO−SCHAUMBURG: Dixie's Bid to Certify Class Denied
FIRST HOME BANK: Fabricant Sues Over Illegal Telemarketing Calls
FIRST NATIONAL: Court Narrows Protective Order in Lundquist
FORD MOTOR: Court Denies Bid to Strike Dismissal Request
FORD MOTOR: New Jersey Court Dismisses Amended Sisolak Suit
FREIGHT HANDLERS: Court Conditionally Certifies Class in Kraft Suit
GEICO GENERAL: Court Certifies Class in PIP Evaluation Suit
GIROS RAPIDEZ: Sent Unsolicited Texts, Griffin Suit Asserts
H.E. BUTT: Meza et al Sue over Savings & Retirement Plan
HALLRICH INC: Approval of Arbitration Bid in Jefferis Recommended
HEADWAY TECH: Fahey Sues Over HDD Suspension Assembly Price-fixing
HEAVENLY YUMMIES: Fails to Pay Minimum and OT Wages, Rivera Says
HUDSON BANK: Court OKs Dismissal of J. Lin's FDCPA Suit
HUDSON HALL: Underpays Bartenders, Braunstein Suit Alleges
INSURANCE LINE: Robinson Sues over Illegal Telephone Calls
INTERNATIONAL PAPER: 4th Cir. Affirms M. Perkins' Suit Dismissal
JOS A BANK: Court Grants Summary Judgment Bid in Akinmeji Suit
JUSTICE ENERGY: Retired Coal Miners Hit Denied Insurance Claims
JUUL LABS: Misrepresents Nicotine Content, Boyd Suit Claims
KANE FURNITURE: Refused to Honor Lifetime Guarantee, Grace Says
KINKISHARYO INT'L: Removes Loaiza et al Suit to C.D. California
L'OREAL USA: Carter Moves for Certification of Purchasers Class
LGE COMMUNITY: 11th Cir. Flips Dismissal of EPTA Suit
LOWE'S HOME: $250K Saenz Labor Suit Settlement Has Final Approval
MAPO TOFU: Seeks 2nd Circuit Review of Judgment in Xu Suit
MERRILL LYNCH: Court Denies Securities Suit Dismissal
METAL GREEN: Liu Seeks Unpaid Wages & Overtime
MIAMI-DADE COUNTY, FL: CFC Seeks to Certify ICE Detainees Class
MIDWEST RECEIVABLE: Ct. Stays Rodz Class Certification Proceedings
MONOTYPE IMAGING: Wheby Says Merger Docs Have Misleading Info
NAVY FEDERAL CREDIT: Ybanez Hits Missed Breaks, Seeks Final Pay
NEW JERSEY: Court Denies Bid for Show Cause Order in Eagle Suit
NEW JERSEY: Court Dismisses Daniels Job Discrimination Suit v. DOC
NEWREZ LLC: Naiman Sues over Unsolicited Robocalls
NRT WEST: Ct. Denies Certification of Three Classes in Chinitz Suit
NUTRACEUTICAL CORP: 9th Cir. Dismisses Petition in Lambert
NYU LANGONE: Desir Sues to Recover Unpaid Wages for Interns
O'RYAN OIL: Johnson Overtime Suit Goes to Dallas Court
OCWEN LOAN: Grant of Leave to Amend Count II in Andrade Recommended
PERRIGO CO: Claims in Carmignac Securities Fraud Suit Narrowed
PETVET CARE: Orr Seeks Overtime Wages for Vet Tech
PLAINS ALL: Andrews Moves to Amend Definition of Fisher Subclass
PLAN BENEFIT: Class of Plan Participants Certified in Chavez Suit
PROFESSIONAL MAINTENANCE: Faces Headley Wage & Hour Suit in Cal.
QUALITY HEALTHCARE: Guyton Seeks to Recover Unpaid Overtime Wages
RMLS HOP: Slaughter Seeks Overtime Pay for Restaurant Staff
ROBERT BAGGETT: Court Dismisses J. Hood's Pro Se Complaint
RUSTIC FROG: Taylor Seeks Minimum & OT Wages for Exotic Dancers
SAMARITAN DAYTOP: Denied OT Pay, Wage Statements, Daise Suit Says
SEALY INC: Sarmiento Seeks to Certify 3 Classes of Employees
SLEEPY'S LLC: Settlement in Sullivan Suit Has Prelim Approval
STEAM GENERATING: Miller Seeks Overtime Wages for Employees
TACOMA, WA: Class Cert. Bid in Jackson Denied Without Prejudice
TARGET CORPORATION: Greenberg Appeals N.D. Cal. Ruling to 9th Cir.
TD BANK: Power Sues over Unauthorized Recordings of Calls
TOP FLITE: Fabricant Moves for Certification of Four Classes
TORO COMPANY: Faces Brooks Suit Over Defective Lawn Mowers
UBER TECH: Irving Securities Suit Dismissed Without Leave to Amend
UNION PACIFIC: Missouri Court Narrows Claims in McCullen Suit
UNITED STATES: Kluge Sues Over Unpaid Differential Pay Benefit
US SECURITY: Ct. Certifies 2 Classes of Guards in Langston Suit
WALMART INC: Thomas Seeks OK to Send Opt-in Notice to Prop. Class
WASHINGTON: Court Orders Show Cause to Proceed IFP in Malone
WHITMAN CONSULTING: Robertson Seeks OT Pay for Welding Inspectors
ZEBRA TECHNOLOGIES: Warren Police Suit Moved to N.D. Illinois
*********
325 THIRNICBAR: Class of Bartenders Certified in Vasil FLSA Suit
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The Hon. Lee Yeakel grants the Parties' Agreed Motion for
Conditional Certification and for Notice to Putative Class Members
filed in the lawsuit titled ANDREW VASIL, and all others similarly
situated v. 325 THIRNICBAR, LLC, ET AL., Case No. 1:19-cv-00540-LY
(W.D. Tex.).
The lawsuit is conditionally certified as a collective action under
29 U.S.C. Section 216(b) (Fair Labor Standards Act) without
prejudice to the Defendants' right to assert their defenses and to
seek de-certification at a later stage of the proceeding.
The Defendants are ordered to provide to the Plaintiff's counsel
within 30 days from the date of this order the names and last known
addresses of the potential class members defined as:
ALL CURRENT OR FORMER EMPLOYEES OF THIRSTY NICKEL, TOULOUSE,
THE LIBRARY, AND MOOSEKNUCKLE PUB, ON 6TH STREET IN AUSTIN,
TEXAS, WHO WORKED AT THOSE BARS AS BAR BACKS, BARTENDERS OR
FRONT DOOR WORKERS AT ANY TIME FROM SEPTEMBER 3, 2016, TO
JUNE 1, 2019.
Judge Yeakel directs the Plaintiff's counsel to mail the approved
Notice to the Potential Plaintiffs within 10 days of receipt of the
information referred to in this Order. The Potential Plaintiffs
shall timely return his or her completed Consent form to the
Plaintiff's counsel postmarked on or before 75 days after notice is
mailed to remain eligible to participate in the collective
action.[CC]
The Plaintiff is represented by:
Charles Scalise, Esq.
ROSS SCALISE LAW GROUP
1104 San Antonio Street
Austin, TX 78701
Telephone: (512) 474-7677
E-mail: charles@rosslawgroup.com
658-660 AMSTERDAM: Minimum Wages for Deliver Workers Sought
-----------------------------------------------------------
FIDEL MONTALVO CANDIA and LUIS GARCIA GALVEZ, individually and on
behalf of others similarly situated, the Plaintiffs, vs. 658-660
AMSTERDAM CORP. (D/B/A NUMERO 28 PIZZERIA CUCINA), REMO BIAMONTE,
MICHAEL DOE, and CHICHO DOE, the Defendants, Case No. 1:19-cv-08181
(S.D.N.Y., Sept. 3, 2019), seeks to recover unpaid minimum wages,
liquidated damages, interest, attorneys' fees and costs pursuant to
the Fair Labor Standards Act and the New York Labor Law.
The Defendants own, operate, or control a pizzeria, located at 660
Amsterdam Ave, New York, New York 10025 under the name "Numero 28
Pizzeria Cucina".
The Plaintiffs were employed as delivery workers at the restaurant.
However, they were required to spend a considerable part of their
work day performing non-tipped duties, including but not limited to
cutting vegetables, preparing pizza dough, sweeping and mopping,
taking out the trash, and stocking deliveries (non-tipped
duties).
The Plaintiffs worked for Defendants without appropriate minimum
wage compensation for the hours that they worked. Rather,
Defendants failed to pay Plaintiffs appropriately for any hours
worked, either at the straight rate of pay.
Furthermore, Defendants repeatedly failed to pay Plaintiffs wages
on a timely basis. Defendants employed and accounted for
Plaintiffs as delivery workers in their payroll, but in actuality
their duties required a significant amount of time spent performing
the alleged non-tipped duties.[BN]
Attorneys for the Plaintiffs 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
Attorneys for Plaintiffs
E-mail: Faillace@employmentcompliance.com
ACADEMY LTD: Conditional Certification of Class in Robbins Endorsed
-------------------------------------------------------------------
In the case, RUSTY ROBBINS and DUSTIN TRAINER, Plaintiffs, v.
ACADEMY, LTD d/b/a ACADEMY, SPORTS + OUTDOORS, Defendant, Civil
Action No. 4:18-CV-00347 (S.D. Tex.), Magistrate Judge Frances H.
Stacy of the U.S. District Court for the Southern District of
Texas, Houston Division, recommended that the Plaintiffs' Motion
for Conditional Certification and for Approval and Facilitated
Notice to Similarly Situated Employees be granted.
The action arises out of alleged violations of the Fair Labor
Standards Act ("FLSA"), with the Plaintiffs alleging that Academy's
store managers were subject to a single decision, policy, or plan
in violation of the FLSA, warranting the issuance of notice to the
putative collective, and to conditional certification of "all store
managers, including Hardlines Managers, Softlines Managers,
Logistics Managers, and Operations Managers, who worked at any
Academy location for the three years preceding the filing of this
lawsuit."
Before the Magistrate Judge upon referral from the District Judge
is the Plaintiffs' Motion for Conditional Certification and for
Approval and Facilitated Notice to Similarly Situated Employees.
In that motion, Robbins and Trainer, who filed the FLSA case on
behalf of themselves and all others similarly situated, complain
that the Defendant improperly classified their store managers,
including Hardlines Managers, Softlines Managers, Logistic
Managers, Operations Managers, or other Assistant Managers in
comparable roles with different titles, as exempt "executives" from
the overtime requirements of the FLSA, and failed to pay them
overtime wages earned. They seek certification of the case as a
collective action of "all current and former store managers
employed by Academy at any time from three years preceding the
filing of this lawsuit, through the entry of final judgement in the
case.
Additionally, the Plaintiffs seek an Order: (1) requiring Academy
to produce a computer-readable data file containing the names and
contact information for all collective members, (2) authorizing
them to mail, email, and text the proposed Notice and Consent to
Join Form to the collective, (3) authorizing them to create a
website where members of the FLSA collective can review the notice
and join the case, and (4) allowing them to post the notice in
Academy's break rooms and to include the notice in Store Manager's
pay envelopes or other method of delivery of their paycheck
information.
The Plaintiffs have submitted Declarations from the Named
Plaintiffs, Corporate Representatives of Academy, and 21 Opt In
Plaintiffs in support of their Motion for Conditional
Certification. They argue that all of the Declarations establish
that Academy subjects them and other store managers to the same
uniform policy, that the store managers are similarly situated with
regard to their job duties and compensation, and that the store
managers receive the same training and are subject to the same
evaluation matrices. Relying upon this evidence, the Plaintiffs
further argue that they have exceeded their burden for conditional
certification, and their proposed forms of notice should be
approved.
In response to the Plaintiffs' Motion for Conditional Certification
and for Approval and Facilitated Notice to Similarly Situated
Employees, Academy does not address whether or not the Plaintiffs
have met their burden for conditional certification. I nstead,
Academy first argues that the Court should delay consideration of
the Plaintiff's motion for conditional certification until after
the Court rules on Academy's motions for summary judgment on
Trainer's and Robbin's claims. Academy then argues, in the event
the Court is unwilling to delay consideration of the motion for
conditional certification, about the manner and form of the
proposed collective action notice.
Magistrate Judge Stacy finds that the Plaintiffs have satisfied the
lenient standard recognized in Lusardi v. Xerox Corp. for a class
consisting of store managers because they have satisfied all three
factors recognized in Prater v. Commerce Equities Mgmt. Co. First,
the Plaintiffs assert that "Academy violated the FLSA by
misclassifying them and the similarly situated store managers as
exempt "executives" and failing to pay them overtime compensation."
The overtime compensation that Academy has failed to pay comes
from the expectation that Academy puts on its store managers to
work an excess of 40 hours per week. Second, the Plaintiffs have
asserted that they perform similar duties as store managers, which
is also made evident from the fact that Academy used the same job
descriptions for all store managers. Third, the 21 declarations
from the Opt In Plaintiffs shows there are people who will opt in
that are similarly situated. As such, the Plaintiffs have met
their lenient burden for conditional certification, and the
Defendant does not rebut this assertion. Thus, the Plaintiffs'
Motion for Conditional Certification should be granted.
As for Academy's argument that judicial economy weighs in favor of
the Court first addressing the FLSA exemption issues contained in
Academy's Motions for Summary Judgment, the Magistrate has given
measured consideration to that argument and concludes that there is
no authority that would unequivocally support a delay in the
certification issue nor is there clear economy/efficiency to be
gained by such a delay. Both sides have briefed the issue of
whether the certification issue or the merits-based summary
judgment issues should be decided first, with each side citing to
cases that support their position. None of those cases provide any
guidance on when, and under what circumstances, conditional
certification issues in an FLSA case should be delayed.
Because the efficiency/economy considerations do not clearly and
heavily weigh in favor of delaying a ruling on the certification
issue, the Magistrate concludes that the Plaintiffs' Motion for
Conditional Certification can and should be decided now.
As for the form and type of notice to be provided to the certified
class, the Magistrate concludes that the three-year look back
period for the form's temporal scope should precede the date that
the Court approves notice; that a 90-day opt-in period is
reasonable based on past precedent; and that the notice should be
disseminated by mail and email. However, requiring Academy to post
the notice in its break rooms and to include the notice along with
the store managers' paychecks is overly intrusive, and a reminder
notice does not seem warranted.
As for the final issue in dispute, she holds that the Academy need
should not have to produce the last known home and cellular
telephone numbers, last known personal and work email addresses, or
last four digits of social security numbers for the putative class
members whose notices are returned as undeliverable, but rather, as
the Defendant suggests, the Plaintiffs can request whatever
additional information is necessary to find the current address for
any putative class member whose notice is returned as
undeliverable.
Based on the foregoing, and the conclusion that certification can
and should be decided at this stage, Magistrate Judge Stacy
recommended (i) that the Plaintiffs' Motion for Conditional
Certification and for Approval and Facilitated Notice to Similarly
Situated Employees be granted; (ii) that the Court conditionally
certifies a class of all current and former store managers employed
by Academy at any time from three years preceding the filing of the
lawsuit, through the entry of final judgment in the case; and (iii)
that Notice be sent to the class members, with provisions in and
for the notice as set forth.
The Clerk will file the instrument and provide a copy to all
counsel and unrepresented parties of record. Within 14 days after
being served with a copy, any party may file written objections.
Failure to file objections within such period will bar an aggrieved
party from attacking factual findings on appeal. Moreover, absent
plain error, failure to file objections within the 14-day period
bars an aggrieved party from attacking conclusions of law on
appeal. The original of any written objections will be filed with
the United States District Clerk.
A full-text copy of the Court's July 31, 2019 Memorandum and
Recommendation is available at https://is.gd/dFaR0w from
Leagle.com.
Allan Lasley, Plaintiff, represented by Alan Luis Quiles --
aquiles@shavitzlaw.com -- SHAVITZ LAW GROUP, P.A., Camar R. Jones
-- cjones@shavitzlaw.com -- SHAVITZ LAW GROUP, P.A., pro hac vice &
Gregg I. Shavitz -- gshavitz@shavitzlaw.com -- SHAVITZ LAW GROUP,
P.A., pro hac vice.
Rusty Robbins & Dustin Trainer, Plaintiffs, represented by Camar R.
Jones, SHAVITZ LAW GROUP, P.A. & Alan Luis Quiles, SHAVITZ LAW
GROUP, P.A.
Academy LTD, doing business as Academy Sports & Outdoors,
Defendant, represented by Robert G. Lian, Jr. -- blian@akingump.com
-- Akin Gump Strauss Hauer Feld LLP, pro hac vice, Brian Glenn
Patterson -- bpatterson@akingump.com -- Akin Gump Strauss Hauer
Feld LLP & Courtney Leigh Stahl -- cstahl@akingump.com -- Akin Gump
Strauss Hauer & Feld LLP.
AIR RESOURCES: Gomez Labor Suit Seeks Unpaid Overtime Wages
-----------------------------------------------------------
Santos Gomez, individually and on behalf of all others similarly
situated, Plaintiff, v. Air Resources Americas, LLC, Defendant,
Case No. 19-cv-01413 (M.D. Pa., August 15, 2019), seeks to recover
unpaid overtime and other damages under the Fair Labor Standards
Act and the Pennsylvania Minimum Wage Act.
Air Resources Americas operates as Swift Worldwide Resources. It
provides business support services including logistics, payroll,
human resources and benefits solutions including staffing solutions
within the energy, process, and infrastructure industries
throughout the United States. Gomez has worked for Swift since May
of 2017 as a Drilling Safety Manager. Throughout his employment, he
was paid a day-rate with no overtime compensation. He claims that
he was paid a salary regardless of the number of hours he worked
that day without any overtime pay for hours worked in excess of
forty hours in a workweek. [BN]
Plaintiff is represented by:
Michael A. Josephson, Esq.
Andrew W. Dunlap, Esq.
JOSEPHSON DUNLAP LAW FIRM
11 Greenway Plaza, Suite 3050
Houston, TX 77046
Tel: (713) 352-1100
Fax: (713) 352-3300
Email: mjosephson@mybackwages.com
adunlap@mybackwages.com
- and -
Richard J. Burch, Esq.
BRUCKNER BURCH, P.L.L.C.
8 Greenway Plaza, Suite 1500
Houston, TX 77046
Tel: (713) 877-8788
Fax: (713) 877-8065
Email: rburch@brucknerburch.com
ALLERGAN GROUP: Implant Patients Sue Over Product Recall
--------------------------------------------------------
Jane Doe 1 and Jane Doe 2, individually and on behalf of all others
similarly situated, Plaintiffs, v. Allergan, Inc. (previously
Inamed Corporation), Allergan USA, Inc., Allergan PLC, McGhan
Medical Corporation and Inamed Corporation, Defendants, Case No.
19-cv-16784 (D. N.J., August 16, 2019), seeks to recover
compensable damages caused by negligence, unjust enrichment and the
Illinois Consumer Fraud Act.
Allergan manufactures and sells BIOCELL (C) saline-filled and
silicone-filled breast implants and tissue expanders. On July 24,
2019, Allergan announced a worldwide recall of BIOCELL after the
U.S. Food and Drug Administration reported of cases of breast
implant-associated anaplastic large cell lymphoma.
Both Plaintiffs have BIOCELL implants that are subject to the said
recall. [BN]
Plaintiff is represented by:
Matthew D. Schelkopf, Esq.
Joseph G. Sauder, Esq.
Joseph B. Kenney, Esq.
SAUDER SCHELKOPF
555 Lancaster Ave.
Berwyn, PA 19312
Telephone: (610) 200-0581
Email: jgs@sstriallawyers.com
mds@sstriallawyers.com
jbk@sstriallawyers.com
lgk@sstriallawyers.com
- and -
Shanon J. Carson, Esq.
Barbara A. Podell, Esq.
Jeffrey L. Osterwise
BERGER & MONTAGUE, P.C.
1622 Locust Street
Philadelphia, PA 19103
Telephone: (215) 875-3000
Facsimile: (215) 875-4604
Email: scarson@bm.net
bpodell@bm.net
josterwise@bm.net
- and -
Matthew R. Mendelsohn, Esq.
David M. Freeman, Esq.
David A. Mazie, Esq.
MAZIE SLATER KATZ & FREEMAN, LLC
103 Eisenhower Parkway
Roseland, NJ 07068
Tel: (973) 228-0391
Email: mrm@mazieslater.com
dfreeman@mazieslater.com
dmazie@mazieslater.com
- and -
John Albanese, Esq.
BERGER AND MONTAGUE
43 SE Main Street, Suite 505
Minneapolis, MN 55414
Tel: (612) 594-
Email: jalbanese@bm.net
ALLIED INTERSTATE: Seeks Approval of $130K Accord in Garcia Suit
----------------------------------------------------------------
In the lawsuit captioned ESMERALDA GARCIA, an individual; on behalf
of herself and all others similarly situated v. ALLIED INTERSTATE,
LLC, a Minnesota Corporation; IQOR US, INC., a Delaware
Corporation; LVNV FUNDING, a Delaware Limited Liability Company;
RESURGENT CAPITAL SERVICES, L.P., a Delaware Limited Partnership;
and ALEGIS GROUP, LLC, a Delaware Limited Liability Company; and
JOHN AND JANE DOES 1 NUMBERS THROUGH 25, Case No. 5:15-cv-00294-RCL
(W.D. Tex.), the parties jointly move the Court to certify the
Plaintiff conditionally as class representative, to certify her
attorneys conditionally as class counsel, to preliminarily approve
a proposed settlement pursuant to Rule 23 of the Federal Rules of
Civil Procedure, and to approve the proposed class notice.
Subject to the terms of the Settlement Agreement, the Settling
Defendants have agreed to provide the following relief to Plaintiff
and the Class:
A. The Settling Defendants shall pay to the Class a total
Settlement Fund of $130,000, which Class Counsel have
confirmed is approximately two percent of LVNV's net worth.
The Settling Defendants have, through informal discovery,
provided evidence to Class Counsel to verify this
assertion;
B. Distribution of the Settlement Fund shall be made on a
claims-made basis, i.e., Class Members who wish to claim
their share of the Settlement Fund must submit a claim in
the form that will be included with the Class Notice. 50%
of the Settlement Fund will be apportioned and disbursed on
a pro rata basis to each Class Member whose letter was
dated on or before May 6, 2015, and who: (1) does not seek
exclusion; and (2) timely submits a claim form. 50% of the
Settlement Fund will be apportioned and disbursed on a pro
rata basis to each Class Member whose letter was dated
after May 6, 2015, and who: (1) does not seek exclusion;
and (2) timely submits a claim form. All distribution
checks to the Class will expire after 120 days. The
proceeds of any uncashed or undeliverable distribution
checks shall be distributed, subject to Court approval, as
a cy pres donation to the Texas Access to Justice
Foundation;
C. In addition to the Settlement Fund, LVNV will provide to
each Class Member an account credit of the lesser of: (i)
$115; or (ii) the Class Member's remaining balance owed to
LVNV. Furthermore, as to any Class Member for whom the debt
at issue in this litigation is still being reported to a
consumer reporting agency, the Settling Defendants will
request deletion of the trade line reporting that debt. No
claim form is required to receive the trade line deletion
and account credit;
D. The Plaintiff will be paid the total amount of $500 in
satisfaction of 1/2 of her individual claim for statutory
damages. She will also be paid, subject to Court approval,
the total sum of $4,500 for her service to the Class;
E. As a non-monetary part of the settlement, the Settling
Defendants will submit to the Court's entry of a mandatory
injunction under the Texas Debt Collection Act providing
that, on a going-forward basis, they will make the
following statement in any collection letter seeking
payment on a time-barred debt from consumer debtors who
have Texas addresses;
F. Subject to Court approval, Class Counsel will be paid the
total sum of $200,000 as compensation for their reasonable
and necessary attorney's fees and costs in service to
Plaintiff and the Class; and
G. The Settling Defendants shall bear the costs of
administration, notice, and distribution of the Settlement
Fund.
The Parties also ask the Court to set a final hearing to determine
whether the Settlement is fair, adequate, and reasonable; and at
such hearing approve the Settlement and grant final judgment.[CC]
The Plaintiff is represented by:
Andrew T. Thomasson, Esq.
Philip D. Stern, Esq.
STERN THOMASSON LLP
150 Morris Avenue, 2nd Floor
Springfield, NJ 07081
Telephone: (973) 379-7500
Facsimile: (973) 532-5868
E-mail: Andrew@SternThomasson.com
Philip@SternThomasson.com
Defendants LVNV Funding LLC, Resurgent Capital Services L.P., and
Alegis Group LLC are represented by:
Manuel H. Newburger, Esq.
BARRON & NEWBURGER PC
7320 North MoPac Expy., Suite 400
Austin, TX 78731
Telephone: (512) 649-4022
Facsimile: (512) 279-0310
E-mail: mnewburger@bn-lawyers.com
ARCHIPEL CAPITAL: Court Denies Class Cert. Bid in Amerio Suit
-------------------------------------------------------------
The Hon. David N. Hurd denies the Plaintiffs' motion for class
certification in the lawsuit titled STEVEN AMERIO and ANDREW
GOLDBERG, Individually and as Co-Lead Plaintiffs on behalf of all
others similarly situated v. GREGORY W. GRAY, JR.; GREGORY P.
EDWARDS; ARCHIPEL CAPITAL LLC; BIM MANAGEMENT LP; and BENNINGTON
INVESTMENT MANAGEMENT, INC., Case No. 5:15-cv-00538-DNH-TWD
(N.D.N.Y.).
"Plaintiffs Goldberg and Amerio have failed to meet their burden of
proving that their causes of action could be properly brought as a
class action," Judge Hurd opines. "The primary concern in
determining whether to grant a class action certification is
whether the class action mechanism is a fair and efficient
mechanism of resolving the claims. In this case, it is neither.
Accordingly, plaintiffs' motion for class certification must be
denied."
On April 30, 2015, Plaintiff Andrew Goldberg brought this suit
alleging an ongoing pattern of securities fraud, among other
claims, against the Defendants. Plaintiff Steven Amerio joined the
action on December 22, 2017, via the Plaintiffs' Second Amended
Complaint, which is also the current operative pleading.
In substance, Plaintiffs Goldberg and Amerio allege that Defendant
Gregory W. Gray, as the managing partner of Defendant Archipel
Capital, LLC, and a general partner of Defendant BIM Management LP,
duped clients into investing in a company whose prospects Mr. Gray
overstated at every opportunity.
Defendant Gregory W. Gray, Jr., of Orchard Park, New York, appears
pro se.[CC]
The Plaintiffs are represented by:
John C. Cherundolo, Esq.
J. Patrick Lannon, Esq.
CHERUNDOLO LAW FIRM, PLLC
AXA Tower One 17th Floor
100 Madison Street
Syracuse, NY 13202
Telephone: (315) 753-4267
- and -
Kevin P. Roddy, Esq.
James E. Tonrey, Jr., Esq.
WILENTZ GOLDMAN & SPITZER PA
90 Woodbridge Center Drive, Suite 900
Woodbridge, NJ 07095
Telephone: (732) 855-6402
E-mail: kroddy@wilentz.com
jtonrey@wilentz.com
Defendants Edwards, Archipel Capital LLC, BIM Management LP, and
Bennington Investment Management, Inc. are represented by:
Michael J. Grudberg, Esq.
TARTER KRINSKY & DROGIN LLP
1350 Broadway
New York, NY 10018
Telephone: (212) 216-8035
Facsimile: (212) 216-8001
E-mail: mgrudberg@tarterkrinsky.com
ASCENSIONPOINT RECOVERY: Krajenka Moves for Class Certification
---------------------------------------------------------------
Brian Krajenka moves the Court to certify the class described in
the complaint of the lawsuit captioned BRIAN KRAJENKA,
Individually, as Representatives of the Estate of MARILYNN
KRAJENKA, and on Behalf of All Others Similarly Situated v.
ASCENSIONPOINT RECOVERY SERVICES, LLC, Case No. 2:19-cv-01280 (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 contends.
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
ASSURED AUTO: Fabrikant Files Suit Under TCPA Over Robocalls
------------------------------------------------------------
BEN FABRIKANT, individually and on behalf of all others similarly
situated v. ASSURED AUTO GROUP, INC., a Florida corporation,
SUNPATH LIMITED, a Delaware corporation, NORTHCOAST WARRANTY
SERVICES, INC., a Delaware corporation, WESCO INSURANCE COMPANY, a
Delaware corporation, John Doe 1, an unknown business entity, Case
No. 8:19-cv-00383 (D. Neb., Sept. 1, 2019), accuses the Defendants
of violating the Telephone Consumer Protection Act by selling their
products via illegal robocalls.
Assured Auto Group is a corporation organized and existing under
the laws of the State of Delaware with its principal place of
business located in West Palm Beach, Florida. Sunpath Limited is a
corporation organized and existing under the laws of the State of
Delaware with its principal place of business in Braintree,
Massachusetts.
Northcoast Warranty Services, Inc. is a corporation organized and
existing under the laws of the State of Delaware with its principal
place of business in Cleveland, Ohio. Wesco Insurance Company is a
corporation organized and existing under the laws of the State of
Delaware with its principal place of business located in New York
City. The Doe Defendant is an unknown business entity.
The Defendants are companies that closely cooperate to market,
sell, finance and provide vehicle service contracts to consumers.
Assured is the sales agent for the joint product with the other
Defendants. Sunpath is the administrator of the vehicle service
contract. Northcoast is the party responsible for the benefits
under the contract. Wesco is a secondary insurer for the
contract.[BN]
The Plaintiff is represented by:
Mark L. Javitch, Esq.
JAVITCH LAW OFFICE
210 S Ellsworth Ave., #486
San Mateo, CA 94401
Telephone: (402) 301-5544
Facsimile: (402) 396-7131
E-mail: mark@javitchlawoffice.com
BANK OF AMERICA: Apilado Suit Remanded to Circuit Court
-------------------------------------------------------
The United States District Court for the District of Hawaii issued
an Order granting Plaintiffs' Motion for Order of Remand in the
case captioned FRANCISCO M. APILADO, et al., Plaintiffs, v. BANK OF
AMERICA, N.A., et al., Defendants. Civil No. 19-00285 JAO-KJM. (D.
Haw.).
The instant action arises out of BANA's allegedly wrongful
non-judicial foreclosures of Plaintiffs' properties. Plaintiffs
filed a First Amended Complaint, asserting the following causes of
action: (1) wrongful deprivation of real property (Count I) and (2)
unfair and deceptive trade practices and unfair methods of
competition under Hawai'i Revised Statutes (HRS) Chapter 480 (Count
II).
Defendant Bank of America, N.A. (BANA) removed this action from the
Circuit Court of the First Circuit, State of Hawai'i on the basis
of diversity jurisdiction, arguing that the Court may disregard the
lack of complete diversity between the parties because Plaintiff
Randall K. Jim was fraudulently joined and/or egregiously
misjoined.
Removal Jurisdiction
Under 28 U.S.C. Section 1441, a defendant may remove a civil action
brought in a state court to federal district court if the district
court has original jurisdiction. Removal statutes are strictly
construed and a defendant seeking removal has the burden to
establish that removal is proper and any doubt is resolved against
removability.
Diversity of Citizenship
BANA asserted diversity jurisdiction as the basis for removal.
Federal district courts have original jurisdiction over cases where
the amount in controversy exceeds $75,000, exclusive of interest
and costs, and where the matter in controversy is between citizens
of different states. Complete diversity of citizenship requires
that each of the plaintiffs be a citizen of a different state than
each of the defendants.
Here, complete diversity is lacking because Plaintiff Jim and BANA
share North Carolina citizenship.
Fraudulent Joinder
BANA acknowledges that the parties lack complete diversity but
contends the Court may disregard Plaintiff Jim's citizenship
because he was fraudulently joined. An exception to the requirement
for complete diversity exists when a non-diverse defendant was
fraudulently joined. The Ninth Circuit has explained that under the
fraudulent-joinder doctrine, joinder of a non-diverse defendant is
deemed fraudulent, and the defendant's presence in the lawsuit is
ignored for purposes of determining diversity, if the plaintiff
fails to state a cause of action against a resident defendant, and
the failure is obvious according to the settled rules of the
state.
Removing defendants may present the facts showing the joinder to be
fraudulent.A defendant claiming fraudulent joinder bears the heavy
burden of facing both the strong presumption against removal
jurisdiction as well as the general presumption against fraudulent
joinder.
The Ninth Circuit has clarified that the fraudulent joinder test is
not equivalent to the test used to assess the sufficiency of a
claim under Rule 12(b)(6). Equating the two conflates a
jurisdictional inquiry with an adjudication on the merits. Because
the purpose of the fraudulent joinder doctrine is to allow a
determination whether the district court has subject matter
jurisdiction, the standard is similar to the wholly insubstantial
and frivolous' standard for dismissing claims under Rule 12(b)(1)
for lack of federal question jurisdiction. This standard accords
with the presumption against removal jurisdiction, under which
courts strictly construe the removal statute and reject federal
jurisdiction if there is any doubt as to the right of removal in
the first instance.
The Fraudulent Joinder Doctrine Only Applies to Defendants
BANA contends that the fraudulent joinder doctrine applies to
plaintiffs. But Ninth Circuit precedent reveals otherwise: Ninth
Circuit cases addressing the doctrine apply it exclusively to
defendants.
To support the proposition that the fraudulent joinder doctrine
applies equally to plaintiffs in the Ninth Circuit, BANA cites
California Dump Truck Owners Ass'n v. Cummins Engine Co., 24 F.
App'x 727 (9th Cir. 2001).
Like California Dump Truck, Tomlinson has no precedential value and
it does not inform this Court's decision because it prefaced its
analysis with the disclaimer: even if applicable in the Ninth
Circuit. BANA rounds out its argument by citing to district court
cases from Kentucky, Louisiana, and Mississippi, none of which
warrant discussion because they are not from the Ninth Circuit.
At the hearing, BANA's counsel insisted that the fraudulent joinder
doctrine can apply to plaintiffs because Ninth Circuit precedent
does not expressly prohibit it. Accepting BANA's position would
require the Court to disregard the overwhelming authority cited
above. An absence of case law prohibiting the doctrine's
application to plaintiffs does not mean the converse is the state
of the law. Significantly, the Ninth Circuit has not adopted the
fraudulent joinder doctrine as to plaintiffs in the nearly 18 years
since California Dump Truck issued.
As the sole named Defendant, BANA cannot invoke the doctrine to
excuse the lack of complete diversity between the parties. BANA's
argument that Plaintiff Jim's citizenship can be disregarded
because he was misjoined is more appropriately analyzed in the
context of the fraudulent/egregious misjoinder doctrine, which the
Court turns to now.
Fraudulent/Egregious Misjoinder
BANA posits that Plaintiffs egregiously misjoined Plaintiff Jim in
an effort to thwart removal to federal court. Again relying on
non-precedential authority, BANA urges the Court to adopt the
fraudulent misjoinder or egregious misjoinder doctrine, first
recognized by the Eleventh Circuit.
Fraudulent misjoinder occurs when the joinder of a non-diverse
defendant having no real connection with the controversy, as
evaluated under Federal Rule of Civil Procedure (FRCP) 20, is so
egregious as to constitute fraudulent joinder. Unlike the
fraudulent joinder doctrine, which concerns the joinder of a
non-diverse defendant against whom there is no possibility of a
claim, the fraudulent misjoinder doctrine focuses on whether the
claims are sufficiently related to be included in the same action.
The Ninth Circuit has yet to adopt the fraudulent misjoinder
doctrine, and the Court declines to apply it here. California Dump
Truck acknowledged the Eleventh Circuit's recognition of the
doctrine, but it stopped short of accepting the doctrine. In fact,
no other federal appellate court has adopted the doctrine, even
when presented with the opportunity to do so.
The fraudulent misjoinder doctrine's fundamental flaw is that it
requires courts to act before they have jurisdiction over a case.
Namely, courts must consult FRCP 20 or corresponding state law at
the outset to ascertain whether non-diverse parties were
fraudulently/egregiously misjoined. Upon a finding of
fraudulent/egregious misjoinder, a court could only obtain
jurisdiction by severing the parties/claims at issue under FRCP
20(b) or 21 which it is powerless to do without jurisdiction and
remanding that portion of the case. Without a valid basis for
jurisdiction, the Court cannot address BANA's misjoinder
arguments.
In sum, the Court concludes that the fraudulent joinder doctrine
applies to defendants, not plaintiffs. The Court also declines to
adopt the fraudulent misjoinder doctrine. Consequently, Plaintiff
Jim's citizenship must be considered. Because Plaintiff Jim and
BANA are both citizens of North Carolina, diversity jurisdiction is
lacking. In the absence of jurisdiction, the Court must remand the
action.
In accordance with this, the Court grants the Plaintiffs' Motion
for Order of Remand, and remands the action to the Circuit Court of
the First Circuit, State of Hawai'i.
A full-text copy of the District Court's August 27, 2019 Order is
available at https://tinyurl.com/y5c4acj7 from Leagle.com.
Francisco M. Apilado, Marian R. Apilado, Dustin G. K. Apilando,
Shannon M. P. Apilando, Donald C. Beaumonte, Jr., Nolan T.
Caballero, Sr., Danielle K. Caballero, Dyron B. Castulo, Carol E.
Cobia, Nowlin P. Correa, Nicholas J. D'Ambrosio, Judy A.
D'Ambrosio, Alejandro G. Dela Cruz, Filomena C. Dela Cruz, Marie B.
Drury, John J. Edwards, Romaine M. Edwards, Patrick K. Fernandez,
Chadwick K. Phillips, Sr., Brenda A. Phillips, Juan C. Fox, William
Fruen, Patricia R. Fruean, Thomas E. Gray, Sharon J. Gray, Russell
R. Higgins, Randall K. Jim, Darin M. Jones, Jonathan M. Julian,
Holly H. K. Kaakimaka, Roland M. Kam, Madonna T. Machado, Dale E.
Sims, Laura Makenna, Laola T. Malaluan, Jason P. Malaluan, Peter P.
Marquardt, Thomas J. Masterson, Maria E. Masterson, Marcia May,
Darius A. Jamal, Edward T. Nagata, Pearl K. Nagata, Pat T. Kadooka,
Leigh A. Kadooka, Robert C. Pastore, Jr., Mary N. Pastore, Cary F.
Pitcher, Joni A. Pitcher, Shirley D. Renteria, Aubrey S. Renteria,
Lois E. Robinson, Kris A. Rodriguez, Mynor S. Roque, Elizabeth M.
Spector, Modesto D. P. Tadiarca, Jr., Charleen M. A. Tinao, Rolando
M. Tirso, Kamehalyn Y. Santos, George T. Tolmachoff, Marilynn E.
Tolmachoff, Paul Y. Tominaga, Sharon N. Tominaga, Leo C. Valencia,
Amelia B. Valencia, Phillip Vallejo, Deborah R. Vallejo, Dean F.
Willis & Genesis K. Willis, Plaintiffs, represented by James J.
Bickerton -- bickerton@bsds.com -- Bickerton Law Group LLLP,
Bridget G. Morgan-Bickerton -- morgan@bsds.com -- Bickerton Law
Group LLLP, John F. Perkin, Perkin & Faria, 700 Bishop St., Suite
111, Honolulu, HI, 96813-4124 & Van-Alan H. Shima, Affinity Law
Group, 1188 Bishop St., Century Sq. Suite 3408, Honolulu, HI,
96813-3301
Bank of America, N.A., Defendant, represented by Elizabeth M.Z.
Timmermans -- eztimmermans@mcguirewoods.com -- McGuireWoods LLP,
pro hac vice, Patricia J. McHenry -- pmchenry@cades.com -- Cades
Schutte LLP, Robert A. Muckenfuss -- rmuckenfuss@mcguirewoods.com
-- McGuireWoods LLP, pro hac vice & Allison Mizuo-Lee
alee@cades.com -- Cades Schutte
BANK OF AMERICA: Nagy Sues over Unwanted Cellular Telephone Calls
-----------------------------------------------------------------
LISA NAGY, individually and on behalf of all others similarly
situated, the Plaintiff, vs. BANK OF AMERICA CORPORATION, the
Defendant, Case No. 3:19-cv-01664-BAS-KSC (S.D. Cal. Sept. 3,
2019), seeks other available legal or equitable remedies, resulting
from the illegal actions Bank of America Corporation, in
negligently, knowingly, and/or willfully contacting the Plaintiff
on Plaintiff's cellular telephone, in violation of the Telephone
Consumer Protection Act, thereby invading Plaintiff's privacy.
Sometime prior to April 2018, the Plaintiff allegedly incurred
financial obligations to Defendant. The Plaintiff then obtained
representation from Attorney, Daniel G. Shay.
On or about April 30, 2018, Mr. Shay, on behalf of Plaintiff, sent
a cease and desist letter to Defendant by facsimile advising
Defendant of Plaintiff's representation and demanding Defendant to
cease all communications with Plaintiff.
Mr. Shay's letter expressly "revoked any prior express consent that
may have been given to receive telephone calls especially to
[Plaintiff's] cellular telephone, from an automated telephone
dialing system or an artificial or pre-recorded voice, as outlined
in the Telephone Consumer Protection Act.
Despite the unequivocal, explicit admonishment, Defendant
continuously called Plaintiff's cellular telephone at least six
times between April 30, 2018 and June 7, 2018, the lawsuit says.
The Bank of America Corporation is an American multinational
investment bank and financial services company based in Charlotte,
North Carolina, with central hubs in New York City, London, Hong
Kong, Minneapolis, and Toronto.[BN]
Attorneys for the Plaintiff are:
Yana A. Hart, Esq.
Abbas Kazerounian, Esq.
KAZEROUNI LAW GROUP, APC
2221 Camino Del Rio South, Suite 101
San Diego, CA 92108
Telephone: (619) 233-7770
Facsimile: (619) 297-1022
E-mail: yana@kazlg.com
ak@kazlg.com
- and -
Daniel G. Shay, Esq.
LAW OFFICE OF DANIEL G. SHAY
2221 Camino Del Rio South, Suite 308
San Diego, CA 92108
Telephone: (619) 344-8667
Facsimile: (619) 344-8657
E-mail: danielshay@tcpafdcpa.com
BIG TOP: Settlement Conference in Pizano Suit Cont'd to Sept. 18
----------------------------------------------------------------
The Clerk of the U.S. District Court for the Northern District of
Illinois made a docket entry in the case captioned Jose Pizano v.
Big top & Party Rentals, LLC d/b/a Big Top Tent & Party Rentals,
LLC, et al., Case No. 1:15-cv-11190 (N.D. Ill.), relating to
matters before the Honorable Robert M. Dow, Jr.
The minute entry states that:
-- Settlement conference is held and continued to
September 18, 2019, at 11:30 a.m.
-- Counsel are to provide a joint status report on progress
toward settlement to the Proposed Order Box no later than
noon on September 17, 2019; and
-- Pending motions [125, 127] are stricken without prejudice
to being refiled if the case does not settle.[CC]
BLUESTEM BRANDS: Court OKs $1MM Class Settlement in Williams
------------------------------------------------------------
The United States District Court for the Middle District of
Florida, Tampa Division, issued an Order and Judgment granting
Plaintiffs' Motion for Final Certification and Final Approval of
the Proposed Class Action Settlement in the case captioned WADDELL
WILLIAMS, on behalf of himself and others similarly situated,
Plaintiff, v. BLUESTEM BRANDS, INC., Defendant. Case No.
8:17-CV-01971-T-27AAS. (M.D. Fla.).
Plaintiff now requests final certification of the settlement class
under Fed. R. Civ. P. 23 (b)(3) and final approval of the proposed
class action settlement.
Waddell Williams filed a class action complaint against Bluestem
Brands, Inc. in the United States District Court for the Middle
District of Florida, asserting class claims under the Telephone
Consumer Protection Act (hereinafter referred to as the TCPA.
Plaintiff now requests final certification of the settlement class
under Fed. R. Civ. P. 23 (b)(3) and final approval of the proposed
class action settlement.
The Court has read and considered the Settlement Agreement, Motion
for Final Approval, Motion for Attorneys' Fees, Costs, Expenses,
and an Incentive Award, and the record. All capitalized terms used
herein have the meanings defined herein and in the Agreement.
Pursuant to Fed. R. Civ. P. 23(b)(3), the Lawsuit is hereby
certified, for settlement purposes only, as a class action on
behalf of the following Class Members with respect to the claims
asserted in the Lawsuit:
All persons and entities throughout the United States (1) to
whom Bluestem Brands, Inc. placed a call in connection with a
Fingerhut, Gettington, or PayCheck Direct account (2) directed to a
number assigned to a cellular telephone service (3) in connection
with its efforts to collect an account balance, (4) via LiveVox,
Inc.'s Quick Connect platform (5) where Bluestem's records contain
a notification of wrong phone (6) from November 2, 2015 through
July 8, 2018.
The Court finds that the settlement of this action, on the terms
and conditions set forth in the Settlement Agreement, is in all
respects fundamentally fair, reasonable, adequate, and in the best
interest of the Class Members, when considering, in their totality,
the following factors: (1) the absence of any fraud or collusion
behind the settlement (2) the complexity, expense, and likely
duration of the litigation (3) the stage of the proceedings and the
amount of discovery completed (4) the probability of the
Plaintiff's success on the merits (5) the range of possible
recovery and the opinions of the class counsel, class
representatives, and the substance and amount of opposition to the
settlement.
Settlement Fund - Defendant established a $1,000,000 Settlement
Fund (Settlement Fund), and will separately pay up to $269,500 to
cover the costs and expenses for class notice and the
administration of the settlement, including expenses necessary to
identify potential Class Members, mail and process claims, and
distribute settlement checks.
Plaintiff's attorneys' fees, in the amount of $380,850, which is 30
percent of the total settlement, and the reimbursement of Class
Counsel's litigation costs and expenses, in the amount of
$17,120.82 and
The Incentive Payment to Plaintiff. Waddell Williams will receive
$5,000 as acknowledgment of his role in prosecuting this case on
behalf of the Class Members.
Class Counsel's request for an award of attorneys' fees of $380,850
is approved.
Class Counsel's request for reimbursement of reasonable litigation
costs and expenses in the amount of $17,120.82 is approved.
Plaintiff's request for an incentive award of $5,000 is approved.
A full-text copy of the District Court's August 27, 2019 Order is
available at https://tinyurl.com/yxl5hywp from Leagle.com.
Waddell Williams, on behalf of himself and others similarly
situated, Plaintiff, represented by Jesse S. Johnson --
jjohnson@gdrlawfirm.com -- Greenwald Davidson Radbil, PLLC &
Michael L. Greenwald -- mgreenwald@gdrlawfirm.com -- Greenwald
Davidson Radbil, PLLC.
Bluestem Brands, Inc., Defendant, represented by Ailen Cruz --
acruz@wiandlaw.com -- Wiand Guerra King, PL, Erin L. Hoffman --
erin.hoffman@FaegreBD.com -- Faegre Baker Daniels, LLP, pro hac
vice & Nathan A. Brennaman -- nate.brennaman@FaegreBD.com -- Faegre
Baker Daniels, LLP, pro hac vice.
CAPITAL ONE: Mallh Sues over Financial Data Breach
--------------------------------------------------
VICTOR MALLH and JONATHAN QUINTEVIS, on behalf of themselves and
all others similarly situated, the Plaintiffs, vs. CAPITAL ONE
FINANCIAL CORPORATION, CAPITAL ONE, N.A., CAPITAL ONE BANK (USA),
N.A., AMAZON.COM, INC., and AMAZON WEB SERVICES, INC., the
Defendants, Case No. 1:19-cv-05040 (E.D.N.Y., Sept. 4, 2019), is a
nationwide class action on behalf of all persons whose personal
identifying financial information was provided to Capital One,
arising out of Defendants' "data breach", which resulted in a third
party obtaining the names, birth dates, approximately 140,000
Social Security numbers, approximately 80,00 bank account numbers,
addresses, phone numbers, email addresses, credit scores, credit
limits, accounts balances, payment histories, and self-reported
income of approximately 100 million consumers and small businesses
in the United States. Most of these consumers and small businesses
applied for Capital One credit cards from 2005 through early 2019.
The Plaintiffs and the Class are now subject to the serious and
real risk that highly confidential information they shared with
Capital One, in reliance on Capital One’s assurances of security,
will be used to their detriment, the lawsuit says. Although
Defendants knew about the data breach, they did not disclose the
breach to the public until July 29, 2019, ten days after their
investigation. As a result, Plaintiffs and the Class remained
ignorant that their sensitive information was compromised and were
unable to take any actions to protect themselves.
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. Capital One
Defendants rent cloud-based storage provided by AWS that hosted
credit card applications and material containing customer’s
personal information. Through AWS, Amazon provide "information
technology infrastructure services to businesses in the form of web
services.[BN]
Attorneys for the Plaintiffs are:
Orin Kurtz, Esq.
GARDY & NOTIS, LLP
Tower 56
126 East 56 th Street, 8th Floor
New York, NY 10022
Telephone: (212) 905-0509
Facsimile: (212) 905-0508
E-mail: mgardy@gardylaw.com
okurtz@gardylaw.com
CARRIZO OIL: Sabatini Says Registration Statement Misleading
------------------------------------------------------------
ERIC SABATINI, Individually and On Behalf of All Others Similarly
Situated, the Plaintiff, vs. CARRIZO OIL & GAS, INC., S.P. JOHNSON
IV, STEVEN A. WEBSTER, ROGER A. RAMSEY, F. GARDNER PARKER, THOMAS
L. CARTER, JR., FRANK A. WOJTEK, ROBERT F. FULTON, FRANCES ALDRICH
SEVILLA- SACASA, and CALLON PETROLEUM COMPANY, the Defendants, Case
No. 1:19-cv-01644-UNA (D. Del., Sept. 3, 2019), stems from a
proposed transaction announced on July 15, 2019, pursuant to which
Carrizo Oil & Gas, Inc. will be acquired by Callon Petroleum
Company. On July 14, 2019, Carrizo's Board of Directors caused the
Company to enter into an agreement and plan of merger with Callon.
Pursuant to the terms of the Merger Agreement, Carrizo's
stockholders will receive 2.05 shares of Callon stock for each
share of Carrizo common stock they own.
On August 20, 2019, the Defendants filed a Form S-4 Registration
Statement with the United States Securities and Exchange Commission
in connection with the Proposed Transaction.
The Registration Statement omits material information with respect
to the Proposed Transaction, which renders the Registration
Statement false and misleading.
Carrizo is an energy company actively engaged in the exploration,
development, and production of oil and gas from resource plays
located in the United States. The Company's current operations are
principally focused on proven, producing oil and gas plays in the
Eagle Ford Shale in South Texas and the Permian Basin in West
Texas.[BN]
Attorneys for the Plaintiff are:
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
- and -
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
CENTER LINE, MI: Bid for Summary Judgment in Halpern Partly Granted
-------------------------------------------------------------------
In the case, HALPERN 2012, LLC, on behalf of themselves and others
similarly situated, Plaintiff, v. CITY OF CENTER LINE, Defendant,
Judge Nancy G. Edmunds of the U.S. District Court for the Eastern
District of Michigan, Southern Division, granted in part the
Defendant's motion for summary judgment.
In the putative class action, Plaintiff Halpern challenges the
constitutionality of Defendant City of Center Line's rental
property ordinance. Like many municipalities, the Defendant has a
Property Maintenance Code ("PMC") that includes provisions
regulating landlords and the leasing of residential housing units.
The Defendant's PMC requires property owners who rent out their
properties to, among other things, register their property with the
City, comply with habitability standards, and submit to
inspections. It charges fees for occupancy certificates and
inspections, and imposes fines when inspections are refused. Its
ordinances are derived from the International Property Maintenance
Code of 2009, a widely used set of standards.
Plaintiff owns a single-family rental property located at 8424
Harding in Center Line, Michigan that is subject to Defendant's
PMC. The Plaintiff's property is managed by Garner Property
Management. At all relevant times, its property has been occupied
by a tenant. After the Plaintiff was issued a citation for failing
to schedule a follow-up inspection, it initiated the putative class
action challenging the constitutionality of the Defendant's rental
property inspection ordinances.
The Plaintiff alleges that the Defendant's PMC is unconstitutional
because the version of the PMC in effect when the case was filed
authorizes rental property inspections without a warrant or an
opportunity for pre-compliance review. Asserting various legal
theories, the Plaintiff asks the Court to void the PMC and order
the Defendant to return all fees and fines collected under it.
The specific ordinance challenged by the Plaintiff requires
inspection of rental properties to ensure compliance with the
Defendant's ordinance requirements and habitability standards.
Pursuant to Center Line Rental Ordinance Section 14-212(a), the
city building department will inspect "on a biennial basis any
non-owner occupied residential building in the city including the
individual residential dwelling units therein."
The building official will determine whether the building complies
with the standards of the city building, plumbing, electrical and
heating ordinances. If the building inspected complies with these
standards, the city building department will issue a certificate of
compliance to that effect. Should a property owner dispute the
findings of the inspector, the owner is afforded an appeal
procedure as a matter of right. No person is permitted to occupy
any such building without a certificate of compliance.
Although the inspections are mandatory for a certificate of
compliance to be issued, it is the owner of the property who must
schedule the inspection. The Defendant sends a letter requesting
the inspection be scheduled, and the owner is expected to call and
do so. A property owner faces a range of penalties if it fails to
schedule the inspection and comply with the ordinance.
On April 10, 2017 an initial inspection of the Plaintiff's property
was conducted. The parties appear to agree that consent by either
the property owner or the tenant was given for the inspection. The
inspection report identified a number of issues with the dwelling,
including repairs needed to the basement, ceiling, and garage,
which were necessary to be completed before a certificate of
compliance could be issued. After the inspection, the Defendant
sent a letter to the Plaintiff's property manager detailing the
required repairs and setting May 10, 2017 as the completion date.
On May 11, 2017, a second letter was sent to the property manager
noting that a certificate of compliance was missing in violation of
Section 14-215. This letter instructed the property manager to
contact the Defendant within five days to schedule a reinspection
that would confirm completion of the repairs.
On June 8, 2017, the property manager wrote to Defendant requesting
a 45-day extension. The Defendant concedes this extension was
granted. However, by Aug. 5, 2017, reinspection had still not
occurred and third letter was sent to the Plaintiff's property
manager requesting a follow up inspection.
On Sept. 13, 2017, the Defendant issued the Plaintiff a citation
for continuing to rent a residential property without a valid
certificate of compliance in violation of Section 14-215. In
October of 2017 the citation was dismissed by the Defendant. The
Plaintiff did not pay any fines or receive any criminal penalties
in connection with the dismissed citation.
On June 13, 2018, the Plaintiff initiated the putative class action
lawsuit against the Defendant. The complaint includes six counts
all arising from the constitutionality of the inspection ordinance.
Specifically, the Plaintiff claims the Defendant's ordinance
violates the Fourteenth Amendment's Due Process Clause (Count I)
and the Fourth Amendment (Count II) and raises claims of unjust
enrichment and the "remedy of assumpsit" under state law (Count
III). The complaint also includes claims for injunctive and
declaratory relief (Counts IV and V), and for liability under 42
U.S.C. Section 1983 (Count VI).
On Feb. 6, 2018, the Plaintiff filed its motion for class
certification. Through this motion, the Plaintiff seeks
certification of a class of all property owners who paid inspection
or registration fees under the Defendant's ordinance. Following a
hearing, the Court took the class certification issue under
advisement pending the resolution of the Defendant's dispositive
motions.
Before the Court is the Defendant's motion summary judgment seeking
dismissal of the Plaintiff's claims in their entirety. Defendant
challenges Plaintiff's standing to assert its Fourth Amendment
claim (Count II) on two grounds. First, the Defendant argues the
Plaintiff lacks Fourth Amendment standing to assert a
constitutional violation resulting from a search of tenant-occupied
rental properties. Second, the Defendant argues the Plaintiff has
not suffered an injury-in-fact and therefore fails to meet the
Article III requirements for federal jurisdiction.
The Plaintiff filed a response in opposition and Defendant
submitted a reply brief. The Plaintiff has also filed a motion to
amend Count III of its complaint.
Judge Edmunds finds that the pre-amendment version of Section
14-220 of the Defendant's PMC is unconstitutional under the Fourth
Amendment because it did not include an explicit warrant procedure
or the opportunity for pre-compliance review. The Plaintiff is
entitled to a declaratory judgment to that effect. The subsequent
amendment of the ordinance does not render the issue moot, but it
does obviate the need for injunctive relief. Finally, the
Plaintiff has not brought forth evidence creating a fact question
on any other aspect of its complaint and has not presented evidence
establishing it is entitled to recover damages.
Accordingly, the Judge (i) granted the Plaintiff's motion for leave
to amend its complaint; (ii) granted in part the Defendant's motion
for summary judgment; (iii) granted the Plaintiff partial summary
judgment under Federal Rule of Civil Procedure 56(f)(1) as to part
of Count II declaring the pre-amendment version of Section 14-220
of the City of Center Line's Property Maintenance Code
unconstitutional; (iv) dismissed with prejudice Counts I, III, IV,
V, VI, and part of Count II of the complaint seeking damages; and
(v) dismissed as moot the Plaintiff's motion for class
certification.
A full-text copy of the Court's July 31, 2019 Order is available at
https://is.gd/N52WNs from Leagle.com.
Halpern 2012, LLC, Plaintiff, represented by Mark K. Wasvary --
mark@wasvarylaw.com -- Mark K. Wasvary, P.C. & Aaron D. Cox, Law
Offices of Aaron D. Cox PLLC.
City of Centerline, Defendant, represented by James E. Tamm --
jetamm@odtlegal.com -- O'Connor, DeGrazia, Michael J. Bonvolanta --
mjbonvolanta@odtlegal.com -- O'Connor, DeGrazia, Tamm & O'Connor,
P.C., Paul Michael Indyk -- pmindyk@odtlegal.com -- O'Connor,
DeGrazia, Tamm and O'Connor, P.C. & Richard V. Stokan, Jr. --
rvstokan@odtlegal.com -- O'Connor, DeGrazia, Tamm & O'Connor,
P.C..
CERVERA REAL: Santamaria Seeks Minimum & OT Wages for Realtors
--------------------------------------------------------------
BEATRIZ SANTAMARIA, the Plaintiffs, vs. CERVERA REAL ESTATE, INC.,
Defendants, Case No. 1:19-cv-23674-XXXX (S.D. Fla., Sept. 3, 2019),
alleges that the Defendant evade the mandatory minimum wage and
overtime provisions of the Fair Labor Standards Act of 1938, by
improperly designating its core revenue-generating employees as
independent contractors.
According to the complaint, the Defendant has a longstanding policy
of misclassifying its employees as purported independent
contractors. In doing so, the Defendant required and/or permitted
Plaintiff, and others similarly situated, to work as realtors on
their property in excess of 40 hours per week but refused to
compensate them at the applicable minimum wage and overtime rates.
The Defendant is a real estate sales company engaged in real estate
sales, marketing, finance, and development, with operations
throughout the United States, and internationally.[BN]
Attorneys for the Plaintiff are:
Raymond R. Dieppa, Esq.
FLORIDA LEGAL, LLC
261 N.E. 1st Street, Suite 502
Miami, FL 33132
Telephone: (305) 901-2209
Facsimile: (786) 870-4030
E-mail: ray.dieppa@floridalegal.law
CHARTER COMMUNICATIONS: Bid to Remand Harper to State Court Denied
------------------------------------------------------------------
Judge William B. Shubb of the U.S. District Court for the Eastern
District of California denied the Plaintiff's Motion to Remand the
case, LIONEL HARPER, individually and on behalf of all others
similarly situated and all aggrieved employees, Plaintiff, v.
CHARTER COMMUNICATIONS, LLC, CHARTER COMMUNICATIONS, INC., and DOES
1 through 25, Defendants, Case No. 2:19-cv-00902 WBS DMC (E.D.
Cal.), to Shasta County Superior Court.
Harper initiated the putative class action against the Charter
Defendants, alleging various violations of the California Labor and
Business and Professions Codes.
The Charter Defendants market and sell telecommunications services
nationwide, including in California. From approximately September
2017 to March 2018, the Plaintiff worked for the Charter Defendants
as a salesperson in California. During that time, the Plaintiff
alleges, the Charter Defendants violated a variety of wage and hour
laws by, for example, failing to pay overtime wages, failing to pay
minimum wage for all hours worked, failing to provide rest breaks
or pay premium wages in lieu of rest breaks, and failing to provide
accurate wage statements.
Following a ruling from a JAMS arbitrator that the Plaintiff's
claims were not arbitrable, the Plaintiff filed the action in state
court. He brought the action as a class action on behalf of all
nonexempt employees who worked for the Defendants in California
within four years from Nov. 19, 2018.
The Charter Defendants removed the action from Shasta County
Superior Court pursuant to the Class Action Fairness Act ("CAFA").
To establish minimal diversity under CAFA, the Notice of Removal
alleges that none of the Defendants are citizens of California and
relies on the Plaintiff's allegations that he is a resident of
California who worked for the Charter Defendants in California from
approximately September 2017 until March 2018 to support the
allegation that the Plaintiff is a citizen of California.
The Plaintiff now moves to remand pursuant to 28 U.S.C. Section
1447, contending that the Charter Defendants have not properly
plead minimal diversity under CAFA.
Judge Shubb finds that the Charter Defendants have submitted
substantial evidence that Plaintiff Harper is domiciled in
California and is a citizen of the United States. This evidence
shows that: (1) Lionel Harper owns real property in California; (2)
he has worked in California fairly consistently since 2002; (3) he
has lived in California since 1994, with the exception of the
2009-2010 year, when he lived in Nebraska; and (4) he is registered
to vote in California. The Plaintiff does not dispute the accuracy
or credibility of this evidence and does not contend that he is
not, in fact, a citizen of California.
Having scrutinized the entire record, the Judge thus finds by a
preponderance of the evidence that Harper is a citizen of
California. Since neither Defendant is a citizen of California,
there is minimal diversity in the case. Given this, and the fact
that it is a putative class action with more than 100 Plaintiffs
and $5 million in controversy, removal of the case was proper under
CAFA.
For these reasons, Judge Shubb denied the Plaintiff's Motion to
Remand.
A full-text copy of the Court's July 31, 2019 Order is available at
https://is.gd/RtoeFI from Leagle.com.
Lionel Harper, Plaintiff, represented by Jamin S. Soderstrom --
jamin@soderstromlawfirm.eom -- Soderstrom Law Firm.
Charter Communications, LLC & Charter Communications, Inc.,
Defendants, represented by Kathryn T. McGuigan --
kathryn.mcguigan@morganlewis.com -- Morgan, Lewis and Bockius LLP,
Nicole Antonopoulos -- nicole.antonopoulos@morganlewis.com --
Morgan Lewis & Bockius LLP & Zachary W. Shine --
zachary.shine@morganlewis.com -- Morgan, Lewis & Bockius LLP.
CHINATOWN TAKE-OUT: Appeals Order in Li FLSA Suit to 2nd Cir.
-------------------------------------------------------------
Defendants Chinatown Take-Out Inc. and Yechiel Meiteles filed an
appeal from a District Court opinion and order entered on August 7,
2019, in the lawsuit titled Li, et al. v. Chinatown Take-Out Inc.,
et al., Case No. 16-cv-7787, in the U.S. District Court for the
Southern District of New York (White Plains).
The appellate case is captioned as Li, et al. v. Chinatown Take-Out
Inc., et al., Case No. 19-2628, in the United States Court of
Appeals for the Second Circuit.
As previously reported in the Class Action Reporter, the Plaintiffs
appealed from the District Court's Opinion and Order, and Judgment
entered in their lawsuit on December 4, 2018, and December 6, 2018.
That appellate case is entitled Li, et al. v. Chinatown Take-Out
Inc., et al., Case No. 19-78.
The Plaintiffs allege violations of the Fair Labor Standards Act,
and the New York Labor Law, arising from the Defendants' various
willful and unlawful employment policies, patterns and/or
practices.[BN]
Plaintiffs-Appellees Shanfa Li, on behalf of himself and others
similarly situated and Guiming Shao 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-Appellants Chinatown Take-Out Inc., DBA China Town Take
Out and Yechiel Meiteles are represented by:
Bernard Weinreb, Esq.
THE LAW OFFICE OF BERNARD WEINREB
2 Perlman Drive
Spring Valley, NY 10977
Telephone: (845) 369-1019
E-mail: boruchw@cs.com
CONSTELLATION ENERGY: Court Dismisses Overcharging Suit
-------------------------------------------------------
The United States District Court for the District of New Jersey
issued an Opinion granting Defendants' Motion to Dismiss in the
case captioned MICHAEL CODA, individually and on behalf of all
others similarly situated, Plaintiff, v. CONSTELLATION ENERGY POWER
CHOICE, LLC, Defendant. Civil Action No. 17-3437
(JMV)(MF)(D.N.J.).
In this putative class action, Plaintiff alleges that Defendant
overcharged him for electricity. Defendant Constellation is an
energy service company (ESCO) that supplies power to residents in
New Jersey. Defendant offered Plaintiff a 12-month fixed rate for
electricity, at a rate of $0.0999 per kilowatt hour (kWh), which he
accepted in 2011 (Agreement). Plaintiff alleges that after the
initial 12-month period, Defendant automatically converted
Plaintiff to a Variable Rate, which Defendant established monthly,
based upon such factors as electricity market pricing, transmission
costs, utility charges and other market related factors.
Defendant argues that the FAC still fails to state any plausible
claims and must be dismissed pursuant to Federal Rule of Civil
Procedure 12(b)(6).
The New Jersey Consumer Fraud Act
The New Jersey Consumer Fraud Act provides that the act, use or
employment by any person of any unconscionable commercial practice,
deception, fraud, false pretense, false promise, misrepresentation,
or the knowing, concealment, suppression, or omission of any
material fact with intent that others rely upon such concealment,
suppression or omission, in connection with the sale or
advertisement of any merchandise or real estate, or with the
subsequent performance of such person as aforesaid, whether or not
any person has in fact been misled, deceived or damaged thereby, is
declared to be an unlawful practice.
A CFA claim is comprised of (1) unlawful conduct (2) ascertainable
loss and (3) a causal relationship between the unlawful conduct and
the ascertainable loss.
In dismissing the CFA claim in the initial Complaint, the Court
determined that Plaintiff failed to assert substantial aggravating
circumstances, which is necessary to proceed on a contract-based
claim under the CFA. Specifically, this Court determined that the
express language of the Agreement permitted Defendant to consider a
list of non-exhaustive factors in setting the variable rate that
were not necessarily tied to wholesale market rates. In addition,
there was no representation in the Agreement that Plaintiff would
pay less in comparison to other local energy suppliers. The FAC
fails to remedy these deficiencies, largely because Plaintiff
cannot change the terms of the Agreement. Thus, Plaintiff's new
allegations in the FAC comparing Constellation's rates to
competitors and explaining that a reasonable consumer would expect
Defendant's rates would be competitive are not enough to state a
claim in light of the Agreement.
Accordingly, Plaintiff fails to establish that there were any
substantial aggravating circumstances.
The FAC omits the critical fact that Plaintiff could have (after
the initial one-year period expired) terminated his relationship
with Defendant at any time for any reason or asked to be switched
back to a fixed rate. Thus, Plaintiff was not forced into paying
rates he did not like.
In fact, Plaintiff's energy bills included a price comparison
between the rates he was being charged by Defendant and PSE&G's
rates. Accordingly, Plaintiff was well aware of how his monthly
rate compared to rates he would have been paying with PSE&G and he
could have canceled his contract with Constellation at any time.
Moreover, the plain terms of the Agreement demonstrate that the
switch from a fixed-rate to a variable rate was automatic if the
parties failed to enter into an additional contract.
As a result, Plaintiff fails to establish that Defendant made a
material misrepresentation or engaged in a deceptive or
unconscionable business practice, even assuming that the Court
accepts Plaintiff's allegation that the Agreement was initially a
solicitation.
Count I is dismissed.
Breach of Contract
To state a claim for breach of contract, plaintiff must allege the
following: (1) the existence of the contract (2) breach of the
contract (3) damages as a result of the breach; and (4) that
plaintiff performed its duties under the contract.
The breach of contract claim was dismissed from Plaintiff's initial
Complaint because, like the CFA claim, the Court did not agree that
market conditions necessarily meant wholesale costs and competing
rates. Accordingly, Plaintiff's attempt to limit the variable rate
to two factors was not supported by the plain language of the
Agreement. Additionally, the Agreement did not guarantee savings or
competitive pricing despite Plaintiff's assumption otherwise.
Plaintiff alleges in the FAC that Defendant breached the Agreement
because it failed to charge variable rates as provided for in
Section 4 of the Agreement. In the FAC, Plaintiff essentially makes
the same arguments that the Court previously found deficient.
Plaintiff fails to state a breach of contract claim.
Count II is dismissed.
The Implied Covenant of Good Faith and Fair Dealing
In dismissing the implied covenant claim in the initial Complaint,
the Court determined that Plaintiff failed to plausibly allege bad
faith. In the FAC, Plaintiff alleges that Defendant breached the
implied covenant by arbitrarily and unreasonably exercising its
unilateral rate-setting discretion to price gouge and frustrate
Plaintiff's reasonable expectation of a market-based variable
rate.
The implied covenant of good faith and fair dealing is a component
of every contract that requires both parties to a contract act in
good faith, that is, they must adhere to community standards of
decency, fairness, or reasonableness. Good faith requires a party
to refrain from destroying or injuring the right of the other party
to receive its contractual benefits. When a party has the right to
exercise discretion under a contract, the discretion must not be
used arbitrarily, unreasonably, or capriciously.
However, a plaintiff cannot satisfy the improper motive' element of
a claim for breach of the covenant of good faith and fair dealing
by alleging, without more, that the defendant's discretionary
decisions benefitted the defendant and disadvantaged the plaintiff.
Although a court may infer that a defendant acted with a bad
motive, a plaintiff must provide factual support that would allow
the Court to draw such a conclusion. Examples of bad faith conduct
that supports an implied covenant claim are (1) purposefully hiding
vital information to ensure that the plaintiff continued to perform
under the contract even though the defendant knew it was going to
terminate the plaintiff's exclusive distributorship arrangement and
(2) deliberately evading the plaintiff after the plaintiff notified
the defendant that it intended to exercise its option to purchase a
lease.
Here, Plaintiff fails to provide sufficient factual allegations
demonstrating that Constellation acted with bad faith in setting
its variable monthly rate. First, Plaintiff's reasonable
expectation of a market-based variable rate is not supported by the
clear terms of the Agreement. The Agreement does not indicate that
Constellation's pricing would be competitive or that it would
result in savings to Plaintiff. Second, contrary to hiding
information, PSE&G's monthly rates were disclosed on Plaintiff's
energy bills. Third, Plaintiff's argument that Constellation acted
in bad faith because it engaged in a bait-and-switch scheme is not
supported by the allegations in the FAC and the Agreement. As a
result, Plaintiff fails to plead facts sufficient to demonstrate
the Constellation acted with bad faith.
Count III, therefore, is also dismissed.
Accordingly, the Defendant's motion is granted, and the First
Amended Complaint is dismissed.
A full-text copy of the District Court's August 27, 2019 Opinion is
available at https://tinyurl.com/y2y8fwkn from Leagle.com.
MICHAEL CODA, Individually and on behalf all others similarly
situated, Plaintiff, represented by MATTHEW ROSS MENDELSOHN, MAZIE
SLATER KATZ & FREEMAN LLC, 103 Eisenhower Pkwy, Roseland, NJ
07068-1031
CONSTELLATION ENERGY POWER CHOICE, LLC., Defendant, represented by
ELIZABETH J. SHER -- esher@daypitney.com -- DAY PITNEY LLP & NAJU
RAJNI LATHIA -- nlathia@daypitney.com -- DAY PITNEY LLP.
DIRECT ENERGY: Court Denies Shelton TCPA Suit Dismissal
-------------------------------------------------------
The United States District Court for the Northern District of Ohio,
Eastern Division, issued an Memorandum and Order denying Defendant
Direct Energy's Motion to Dismiss in the case captioned JAMES
EVERETT SHELTON, et al., Plaintiffs, v. DIRECT ENERGY, L.P., et
al., Defendants. Case No. 1:19CV0081. (N.D. Ohio).
The plaintiff James Everett Shelton has filed an amended class
action complaint against defendants Direct Energy, L.P., and KAA
Energy, Inc., alleging violations of the Telephone Consumer
Protection Act (TCPA) and Pennsylvania's Telemarketer Registration
Act (PTRA).
Direct Energy filed a motion to dismiss the amended complaint
pursuant to Civil Rule 12(b)(1), based on lack of subject-matter
jurisdiction, and pursuant to Rule 12(b)(6), for failure to state a
claim upon which relief can be granted.
Standard under Rule 12(b)(1)
Civil Rule 12(b)(1) allows for dismissal of a claim for lack of
subject-matter jurisdiction. In ruling on such a motion, the court
must determine whether it has jurisdiction over the subject matter.
When the defendant challenges subject matter jurisdiction through a
motion to dismiss, the plaintiff bears the burden of establishing
jurisdiction.
Standard under Rule 12(b)(6)
Civil Rule 12(b)(6) allows for dismissal of a claim for failure to
state a claim upon which relief can be granted. In Ashcroft v.
Iqbal, the Supreme Court summarized the new "plausibility" standard
for dismissal under Rule 12(b)(6) as follows: To survive a motion
to dismiss, a complaint must contain sufficient factual matter,
accepted as true, to state a claim to relief that is plausible on
its face. A claim has facial plausibility when the plaintiff pleads
factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.
The plausibility standard is not akin to a probability requirement,
but it asks for more than a sheer possibility that a defendant has
acted unlawfully. Where a complaint pleads facts that are merely
consistent with a defendant's liability, it stops short of the line
between possibility and plausibility of `entitlement to relief.
Direct Energy's Arguments
The motion to dismiss relies on two arguments: (1) there is no
injury in fact to support Article III standing because Shelton
signed up as a Direct Energy customer as a result of the calls and
(2) Shelton is a serial TCPA litigator who has suffered no legal
injury.
Injury in Fact
The motion asserts that Shelton suffered no injury-in-fact to
support Article III standing. A challenge to a party's standing is
a jurisdictional challenge. The jurisdiction of the federal courts
is limited by Article III of the Constitution to adjudicating
actual Cases and Controversies. Standing is essential to the
exercise of jurisdiction, and is a threshold question that
determines the power of the court to entertain the suit.
Direct Energy's first argument is that Shelton cannot demonstrate
any concrete or particularized injury sufficient to establish an
injury in fact because he signed up to be a Direct Energy customer,
therefore he sought to benefit from the call demonstrating that the
calls were not unwarranted, nuisances, invasive, costly, or
inconvenient. The amended complaint alleges otherwise.
In any event, this argument is unsupported by any case authority,
and the court rejects it as a legal basis for dismissing the action
on jurisdictional grounds.
Legal Injury
In addition, Direct Energy claims that Shelton is a serial TCPA
litigator manipulating the TCPA to trap companies that respond to
his requests to be called, who has suffered no legal injury. Direct
Energy argues that some courts have found that TCPA suits have been
abused by serial litigants, and thus the court should apply close
scrutiny on the issue of standing in light of Spokeo.
In addition to alleging a statutory violation under the TCPA,
Shelton's complaint alleged specific harms. Shelton alleged he was
temporarily deprived of legitimate use of his phone because the
phone line was tied up, he was charged for the call and his privacy
was improperly invaded, plus the call was frustrating, obnoxious,
annoying, a nuisance, and disturbed his solitude.
The court finds that the amended complaint sufficiently alleges
concrete harms, in addition to the alleged statutory violation, to
satisfy the injury-in-fact requirement for Article III standing.
Direct Energy also contends that Shelton's complaint should be
dismissed because he is a serial litigator improperly manipulating
the TCPA. The defendant asserts that Shelton is a professional TCPA
plaintiff who has filed approximately thirty-seven TCPA lawsuits in
recent years.
The fact that Shelton has filed other TCPA suits does not deprive
him of standing, nor does that fact bar this suit.
In addition, Direct Energy asserts that Shelton consented to the
call by completing an online survey indicating interest. Shelton
unequivocally denies having visited the unidentified website that
KAA Energy asserts is the basis for calling him. He asserts that
when a robocall to a cell phone is made for telemarketing purposes,
the consent required by the TCPA is prior express written consent.
This court has ruled that express consent is not an element of a
plaintiff's prima facie case but is an affirmative defense for
which the defendant bears the burden of proof.
Thus, it is not an issue to be determined on a motion to dismiss
the amended complaint.
The court denies Direct Energy's motion to dismiss.
A full-text copy of the District Court's August 27, 2019 Memorandum
and Order is available at https://tinyurl.com/y45xhct2 from
Leagle.com.
James Everett Shelton, Plaintiff, represented by Brian K. Murphy --
murphy@mmmb.com -- Murray, Murphy, Moul & Basil, Jonathan P. Misny
-- misny@mmmb.com -- Murray, Murphy, Moul & Basil, Matthew P. McCue
-- mmccue@massattorneys.net -- Law Office of Matthew P. McCue &
Anthony Paronich -- ted@broderick-law.com -- Broderick Paronich.
Direct Energy, LP, Defendant, represented by Ashley L. Oliker --
wcolonrosa@fbtlaw.com -- Frost Brown Todd, Frank S. Carson --
lalford@fbtlaw.com -- Frost Brown Todd, Michael D. Matthews, Jr. --
matt.matthews@mhllp.com -- McDowell Heatherington & William B.
Thomas -- william.thomas@mhllp.com -- McDowell Heatherington.
Kaa Energy, Inc., Defendant, represented by Gregory G. Guice --
gguice@reminger.com -- Reminger Co.
DIRECT ENERGY: Court Denies Shelton TCPA Suit Dismissal
-------------------------------------------------------
The United States District Court for the Northern District of Ohio,
Eastern Division, issued an Memorandum and Order denying Defendant
Direct Energy's Motion to Dismiss in the case captioned JAMES
EVERETT SHELTON, et al., Plaintiffs, v. DIRECT ENERGY, L.P., et
al., Defendants. Case No. 1:19CV0081. (N.D. Ohio).
The plaintiff James Everett Shelton has filed an amended class
action complaint against defendants Direct Energy, L.P., and KAA
Energy, Inc., alleging violations of the Telephone Consumer
Protection Act (TCPA) and Pennsylvania's Telemarketer Registration
Act (PTRA).
Direct Energy filed a motion to dismiss the amended complaint
pursuant to Civil Rule 12(b)(1), based on lack of subject-matter
jurisdiction, and pursuant to Rule 12(b)(6), for failure to state a
claim upon which relief can be granted.
Standard under Rule 12(b)(1)
Civil Rule 12(b)(1) allows for dismissal of a claim for lack of
subject-matter jurisdiction. In ruling on such a motion, the court
must determine whether it has jurisdiction over the subject matter.
When the defendant challenges subject matter jurisdiction through a
motion to dismiss, the plaintiff bears the burden of establishing
jurisdiction.
Standard under Rule 12(b)(6)
Civil Rule 12(b)(6) allows for dismissal of a claim for failure to
state a claim upon which relief can be granted. In Ashcroft v.
Iqbal, the Supreme Court summarized the new plausibility standard
for dismissal under Rule 12(b)(6) as follows: "To survive a motion
to dismiss, a complaint must contain sufficient factual matter,
accepted as true, to state a claim to relief that is plausible on
its face. A claim has facial plausibility when the plaintiff pleads
factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.
The plausibility standard is not akin to a probability requirement,
but it asks for more than a sheer possibility that a defendant has
acted unlawfully. Where a complaint pleads facts that are merely
consistent with a defendant's liability, it stops short of the line
between possibility and plausibility of `entitlement to relief."
Direct Energy's Arguments
The motion to dismiss relies on two arguments: (1) there is no
injury in fact to support Article III standing because Shelton
signed up as a Direct Energy customer as a result of the calls and
(2) Shelton is a serial TCPA litigator who has suffered no legal
injury.
Injury in Fact
The motion asserts that Shelton suffered no injury-in-fact to
support Article III standing. A challenge to a party's standing is
a jurisdictional challenge. The jurisdiction of the federal courts
is limited by Article III of the Constitution to adjudicating
actual Cases and Controversies. Standing is essential to the
exercise of jurisdiction, and is a threshold question that
determines the power of the court to entertain the suit.
Direct Energy's first argument is that Shelton cannot demonstrate
any concrete or particularized injury sufficient to establish an
injury in fact because he signed up to be a Direct Energy customer,
therefore he sought to benefit from the call demonstrating that the
calls were not unwarranted, nuisances, invasive, costly, or
inconvenient. The amended complaint alleges otherwise.
In any event, this argument is unsupported by any case authority,
and the court rejects it as a legal basis for dismissing the action
on jurisdictional grounds.
Legal Injury
In addition, Direct Energy claims that Shelton is a serial TCPA
litigator manipulating the TCPA to trap companies that respond to
his requests to be called, who has suffered no legal injury. Direct
Energy argues that some courts have found that TCPA suits have been
abused by serial litigants, and thus the court should apply close
scrutiny on the issue of standing in light of Spokeo.
In addition to alleging a statutory violation under the TCPA,
Shelton's complaint alleged specific harms. Shelton alleged he was
temporarily deprived of legitimate use of his phone because the
phone line was tied up, he was charged for the call and his privacy
was improperly invaded, plus the call was frustrating, obnoxious,
annoying, a nuisance, and disturbed his solitude.
The court finds that the amended complaint sufficiently alleges
concrete harms, in addition to the alleged statutory violation, to
satisfy the injury-in-fact requirement for Article III standing.
Direct Energy also contends that Shelton's complaint should be
dismissed because he is a serial litigator improperly manipulating
the TCPA. The defendant asserts that Shelton is a professional TCPA
plaintiff who has filed approximately thirty-seven TCPA lawsuits in
recent years.
The fact that Shelton has filed other TCPA suits does not deprive
him of standing, nor does that fact bar this suit.
In addition, Direct Energy asserts that Shelton consented to the
call by completing an online survey indicating interest. Shelton
unequivocally denies having visited the unidentified website that
KAA Energy asserts is the basis for calling him. He asserts that
when a robocall to a cell phone is made for telemarketing purposes,
the consent required by the TCPA is prior express written consent.
This court has ruled that express consent is not an element of a
plaintiff's prima facie case but is an affirmative defense for
which the defendant bears the burden of proof.
Thus, it is not an issue to be determined on a motion to dismiss
the amended complaint.
The court denies Direct Energy's motion to dismiss.
A full-text copy of the District Court's August 27, 2019 Memorandum
and Order is available at https://tinyurl.com/y45xhct2 from
Leagle.com.
James Everett Shelton, Plaintiff, represented by Brian K. Murphy --
murphy@mmmb.com -- Murray, Murphy, Moul & Basil, Jonathan P. Misny
-- misny@mmmb.com -- Murray, Murphy, Moul & Basil, Matthew P. McCue
-- mmccue@massattorneys.net -- Law Office of Matthew P. McCue &
Anthony Paronich -- ted@broderick-law.com -- Broderick Paronich.
Direct Energy, LP, Defendant, represented by Ashley L. Oliker --
wcolonrosa@fbtlaw.com -- Frost Brown Todd, Frank S. Carson --
lalford@fbtlaw.com -- Frost Brown Todd, Michael D. Matthews, Jr. --
matt.matthews@mhllp.com -- McDowell Heatherington & William B.
Thomas -- william.thomas@mhllp.com -- McDowell Heatherington.
Kaa Energy, Inc., Defendant, represented by Gregory G. Guice --
gguice@reminger.com -- Reminger Co.
DYNAMIC RECOVERY: Seeks Approval of $130K Hussein Suit Settlement
-----------------------------------------------------------------
The parties in the lawsuit captioned Margaret Hussein, On behalf of
Plaintiff and the class v. Dynamic Recovery Solutions, LLC, Case
No. 1:18-cv-04400 (N.D. Ill.), ask the Court to:
(1) preliminarily approve their Class Settlement Agreement,
which provides with a Class Recovery of $130,000;
(2) set dates for class members to object or opt out;
(3) schedule a hearing for final approval of the Agreement;
(4) approve the notice to be mailed to the class; and
(5) find that service of said notice satisfies due process
requirements.
The Plaintiff filed the lawsuit alleging that DRS violated the Fair
Debt Collection Practices Act by sending collection letters on
time-barred debts, which did not disclose that they could not be
sued for the debt or that a payment may restart the statute of
limitations on the debt.
After arm's-length negotiations and a private mediation session
held on March 21, 2019, before the Hon. David H. Coar (Ret.), the
parties reached a settlement to resolve the Litigation. For
purposes of effectuating this settlement, the Parties request that
this Court preliminarily and conditionally certify a Class
consisting of:
All individuals with Illinois addresses, (b) to whom DRS
sent a letter to collect a debt, (c) which debt was a credit
card on which the last payment had been made more than 5
years prior to the letter, (d) which stated that "The law
limits how long you can be sued on a debt. Because of the
age of your debt, our client will not sue you for it," (e)
which did not state that any payment may restart the statute
of limitations, and (f) which letter was sent between
June 25, 2017 and present.
DRS represents that the class size is approximately 5,237
individuals.
Excluded from the Class are:
a. any person who is already subject to an existing release;
b. any person who has filed for bankruptcy protection under
Title 11 of the United States Code as of the date of the
Conditional Certification Order;
c. any Class Member who timely mails a request for exclusion;
and
d. any person to whom Defendant sent the Letter but whose
Letter was returned as undeliverable, based on DRS's
records.
The Agreement provides for this relief to class members:
a. DRS shall pay to the class a total Class Recovery of
$130,000;
b. Distribution of the Class Recovery shall be made on a
claims-made basis, i.e. Class Members who wish to claim
their share of the Class Recovery must submit a claim in
the form that will accompany the Class Notice. The Class
Recovery will be divided equally among all Class Members
who timely submit claim forms;
c. The time period for Class Members to timely submit claim
forms shall be sixty (60) days after the Initial Notice
Date. All distribution checks to the Class will expire
after ninety (90) days;
d. The proceeds of any uncashed distribution checks shall be
distributed as a cy pres distribution to the Chicago
Volunteer Legal Services Foundation; and
e. Given the approximate class size of 5,237, Class Counsel
anticipates, based on a 5%-10% response rate, that class
members who submit claim forms are likely to receive
somewhere between $250-$500.
Plaintiff Margaret Hussein will be paid the total amount of $7,000
for her service to the class and for her individual statutory
damages. Subject to Court approval, DRS has agreed to pay Class
Counsel the total sum of $106,000 for their attorneys' fees and
costs.[CC]
The Plaintiff is represented by:
Steven J. Uhrich, Esq.
UHRICH LAW, P.C.
1 N. State Street, Suite 1500
Chicago, IL 60602
Telephone: (773) 969-6337
E-mail: steven@uhrichlawpc.com
- and -
Ronald Wilcox, Esq.
Allison A. Krumhorn, Esq.
WILCOX LAW FIRM PC
2021 The Alameda, Suite 200
San Jose, CA 95126
Telephone: (408) 296-0400
E-mail: ronaldwilcox@post.harvard.edu
allisonkrumhorn@gmail.com
- and -
David M. Schultz, Esq.
Jennifer M. Weller, Esq.
Lindsey A.L. Conley, Esq.
HINSHAW & CULBERTSON LLP
151 N. Franklin Street, Suite 2500
Chicago, IL 60606
Telephone: (312) 704-3527
E-mail: dschultz@hinshawlaw.com
jweller@hinshawlaw.com
lconley@hinshawlaw.com
E. MISHAN & SONS: Mack et al Sue over Sale of Non-Stick Pans
------------------------------------------------------------
CARL MACK and ALEC GABLE, on behalf of themselves and all others
similarly situated, the Plaintiffs, vs. E. MISHAN & SONS, INC., the
Defendant, Case No. 1:19-cv-08233 (S.D.N.Y., Sept. 4, 2019),
contends that the Defendant advertises its cooking pans as
"non-stick" and did not require butter or oil to cook with.
However when Plaintiffs used the pans, the food stuck. Defendant's
deceptive and misleading practices constitute a deceptive act and
practice in the conduct of business in violation of New York
General Business Law and Plaintiffs and the Class Members have been
damaged thereby.
E. Mishan and Sons ("Emson") markets and sells cooking pans and
other cookware under the brand name "Gotham Steel."[BN]
Counsel for the Plaintiffs and the Class are:
Jason P. Sultzer, Esq.
Joseph Lipari, Esq.
Adam Gonnelli, Esq.
THE SULTZER LAW GROUP P.C.
85 Civic Center Plaza, Suite 200
Poughkeepsie, NY 12601
Telephone: (845) 483-7100
Facsimile: (888) 749-7747
E-mail: sultzerj@thesultzerlawgroup.com
- and -
Bonner Walsh, Esq.
WALSH PLLC
1651 Long Haul Road
Grangeville, ID 83530
Telephone: (541) 359-2827
Facsimile: (866) 503-8206
E-mail: bonner@walshpllc.com
EQUIFAX INC: Molinari FCRA Suit Dismissed Without Prejudice
-----------------------------------------------------------
Judge I. Leo Glasser of the U.S. District Court for the Eastern
District of New York granted without prejudice Equifax's motion to
dismiss the case, JOHN MOLINARI, individually and on behalf of all
others similarly situated, Plaintiff, v. EQUIFAX INC. and EQUIFAX
CONSUMER SERVICES LLC, Defendants, Case No. 18-CV-3282 (E.D. N.Y.),
pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure.
Molinari brought the putative class action against Equifax for
selling credit scores that are not derived from a widely used
credit scoring model in violation of the Fair Credit Reporting Act
("FCRA"). Equifax is one of the nation's largest credit reporting
agencies that collects certain credit information from would be
borrowers and provides it to various businesses. It also markets
and sells credit-related products directly to consumers, such as
credit scores, which are numerical summaries, typically between 300
and 850, designed to predict whether consumers are likely to pay
their debts and are relied on by lenders.
Lenders rely on credit scores that are created by a variety of
different scoring models, but the models relied on most often are
those developed by the Fair Isaac Corpo. ("FICO"). In addition to
FICO credit scores, several companies, including the Defendant,
have developed credit score models intended only to advise a
consumer as to how his creditworthiness may be regarded by lenders.
Those models that have been developed for this purpose differ from
those developed by FICO and are rarely used by lenders. One such
model creates a credit score unique to Equifax and is referred to
as the "Equifax Credit Score."
On May 29, 2015, Molinari purchased his credit score from Equifax
through its website, www.equifax.com. Before clicking on the link
to purchase his score, he was directed to a webpage that provided
at the bottom of the page and in fine print, "What You Need To
Know: The Equifax Credit Score is based on the Equifax Credit Score
Model. Third parties use many different types of credit scores and
will not use the Equifax Credit Score to assess your
creditworthiness." Despite this disclaimer, Molinari believed he
was receiving a credit score that would be provided to and used by
lenders.
On Jan. 3, 2017, the U.S. Consumer Financial Protection Bureau
("CFPB") investigated Equifax's marketing practices and concluded
that from July 21, 2011 through March 14, 2014, Equifax violated
the Consumer Financial Protection Act by deceptively marketing its
credit scores to consumers. It also concluded that there were
significant and meaningful differences between the Equifax Credit
Scores and the variety of FICO scoring models used by lenders.
On June 5, 2018, Molinari, relying on that conclusion, brought the
lawsuit on behalf of himself and others who purchased Equifax
Credit Scores between June 5, 2013 and June 5, 2018.
While the CFPB concluded that Equifax violated the Consumer
Financial Protection Act because of its deceptive marketing
practices, Molinari claims only that Equifax violated an entirely
different statute, Section 1681g(f)(7)(A) of the FCRA.
Pending before the Court is Equifax's motion to dismiss. In
addition to claiming that its score complies with the statute,
Equifax argues that Molinari does not have standing to bring the
action because he alleged no facts regarding his own Equifax Credit
Score experience and how it differed from the scores typically used
by lenders.
Judge Glasser finds that Molinari did not allege a violation of
Section 1681g(f)(7)(A) of the FCRA that creates a real risk of a
concrete injury. Molinari claims that as a result of the
significant difference between the Equifax Credit Scores and the
credit scores provided to the vast majority of lenders, the Equifax
Credit Scores do not meaningfully assist consumers in understanding
how lenders will assess their credit worthiness . Critically,
Molinari did not allege what the significant difference was between
his Equifax Credit Score and the score that would be provided to
lenders or how he knew that his Equifax Credit Score did not
meaningfully assist him.
Indeed, rather than relying on his specific experience in
purchasing his Equifax Credit Score, Molinari clearly relied on a
portion of the CFPB's conclusions in its Consent Order to support
his claim. His selective reliance on that Consent Order is
misplaced because (1) the report concluded that Equifax violated
the Consumer Financial Protection Act because of its marketing
practices, not the Fair Credit Reporting Act, an entirely different
statute containing different requirements for consumer reporting
agencies and (2) the CFPB concluded that Equifax engaged in
deceptive marketing practices from July 21, 2011 through March 14,
2014, while Molinari's Complaint alleges that the FCRA violations
occurred between June 5, 2013 and June 5, 2018, a time period that
has minimal overlap with the CFPB's review.
Accordingly, the Judge finds that Molinari does not have standing
to bring this claim and therefore it is dismissed. Having
dismissed this claim, the Judge need not determine whether Equifax
willfully violated the statute.
Based on this, Judge Glasset granted without prejudice Equifax's
motion to dismiss.
A full-text copy of the Court's July 31, 2019 Memorandum and Order
is available at https://is.gd/dUXabx from Leagle.com.
John Molinari, Plaintiff, represented by George Volney Granade, II
-- mreese@reesellp.com. -- Reese LLP, Matthew D. Schultz --
mschultz@levinlaw.com -- Levin Papantonio Thomas Mitchell Echsner &
Procter, pro hac vice & Michael Robert Reese, Reese LLP.
Equifax Inc. & Equifax Consumer Services LLC, Defendants,
represented by John C. Toro -- jtoro@kslaw.com -- King & Spalding
LLP, pro hac vice, Katherine P. Nobles -- pnobles@kslaw.com -- King
& Spalding LLP, pro hac vice, Misty Peterson -- mpeterson@kslaw.com
-- King & Spalding LLP, pro hac vice & Zachary A. McEntyre --
zmcentyre@kslaw.com -- King & Spalding LLP.
EZ ENERGY: Igboeli-Ilodi Files Suit Over Unauthorized Fax Ads
-------------------------------------------------------------
VICTORIA IGBOELI-ILODI, individually and on behalf of all others
similarly situated v. EZ ENERGY GROUP LLC, a Florida limited
liability company, and JOHN DOE CORPORATION, Case No. 1:19-cv-01996
(N.D. Ohio, Aug. 29, 2019), seeks to:
(1) stop the Defendants' practice of sending unauthorized and
unwanted fax advertisements; and
(2) obtain redress for all persons and entities injured by
their conduct, which violates the Federal Telephone
Consumer Protection Act of 1991, as amended by the Junk
Fax Prevention Act of 2005.
EZ Energy is a limited liability company incorporated and existing
under the laws of the State of Florida. EZ Energy is a national
company that provides telemarketing services for energy supply
companies, as well as other types of businesses throughout the USA
and Canada. EZ Energy has focused on the deregulated energy sales
business since at least 2008. EZ Energy provides telemarketing
services for energy supply companies.
John Doe Corporation is an electricity supplier certified by the
Public Utilities Commission of Ohio ("PUCO"). John Doe Corporation
is a certified supplier in the Ohio Energy Choice Program, offering
electricity and/or natural gas to consumers and/or small businesses
in Ohio. John Doe Corporation is a customer of EZ Energy. The
true identity of John Doe Corporation will be revealed during
discovery.[BN]
The Plaintiff is represented by:
Adam T. Savett, Esq.
SAVETT LAW OFFICES LLC
2764 Carole Lane
Allentown, PA 18104
Telephone: (610) 621-4550
Facsimile: (610) 978-2970
E-mail: adam@savettlaw.com
FIELDWORK CHICAGO−SCHAUMBURG: Dixie's Bid to Certify Class Denied
-------------------------------------------------------------------
The Clerk of the U.S. District Court for the Northern District of
Illinois made a docket entry in the case entitled Dixie Plumbing
Specialties, Inc. v. Fieldwork Chicago−Schaumburg, Inc., et al.,
Case No. 1:19-cv-05821 (N.D. Ill.), relating to matters before the
Honorable John J. Tharp Jr.
The minute entry states that:
-- Plaintiff's motion for class certification is denied
without prejudice and will not be heard as noticed;
-- The motion acknowledges that it is being filed at this time
only for the prophylactic purpose of preventing the
Plaintiff's claim from being mooted by an attractive
settlement offer;
-- The Supreme Court's decision in Campbell−Ewald Co. v.
Gomez, 136 S. Ct. 663 (2016) obviates the need for such
prophylactic motions. See also Conrad v. Boiron, Inc., 869
F.3d 536, 541 (7th Cir. 2017); Laurens v. Volvo Cars of
North America, LLC, 868 F.3d 622, 628 (7th Cir. 2017);
Fulton Dental, LLC v. Bisco, Inc., 860 F.3d 541, 545 (7th
Cir. 2017); Chapman v. First Index, Inc., 796 F.3d 783,
786−87 (7th Cir. 2015);
-- The motion may be refiled when the Plaintiff is prepared to
substantively brief the motion or in accordance with a
future scheduling order entered by the Court; and
-- An initial status hearing in the case will be set once the
due date(s) for the Defendants' responses to the complaint
are known.[CC]
FIRST HOME BANK: Fabricant Sues Over Illegal Telemarketing Calls
----------------------------------------------------------------
Terry Fabricant, individually and on behalf of all others similarly
situated, Plaintiff, v. First Home Bank, Defendant, Case No.
19-cv-07134 (C.D. Cal., August 15, 2019), seeks injunctive relief,
statutory damages, treble damages and all other relief for
violation of the Telephone Consumer Protection Act.
First Home Bank, is a Florida chartered community bank with its
principal place of business in St. Petersburg, Florida. It
conducted telemarketing campaigns in order to promote its business.
Fabricant claims to have received auto-dialed telemarketing calls
on his phones. Fabricant's phone is registered in the National
Do-Not-Call registry. [BN]
Plaintiff is represented by:
John R. Habashy, Esq.
LEXICON LAW, PC
633 W. Fifth St., 28th Floor
Los Angeles, CA 90071
Telephone: 213-233-5900
Fax: 888-373-2107
Email: john@lexiconlaw.com
- and -
Ryan M. Kelly, Esq.
ANDERSON + WANCA
3701 Algonquin Road, Suite 500
Rolling Meadows, IL 60008
Telephone: (847) 368-1500
Fax: (847) 368-1501
Email: rkelly@andersonwanca.com
FIRST NATIONAL: Court Narrows Protective Order in Lundquist
-----------------------------------------------------------
The United States District Court for the Western District of
Washington, Tacoma, issued an Order granting in part and denying in
part Defendants' Motion for Protective Order as to Second Rule
30(b)(6) Deposition in the case captioned CAMERON LUNDQUIST, an
individual, and LEENAN LARA, an individual, on behalf of themselves
and all others similarly situated, Plaintiffs, v. FIRST NATIONAL
INSURANCE COMPANY OF AMERICA, et al., Defendants. Case No. 18-5301
RJB. (W.D. Wash.).
In this putative class action, the Plaintiffs assert that
Defendants' practice of using unexplained and unjustified condition
adjustments to comparable vehicles when valuing a total loss claim
for a vehicle, violates the Washington Administrative Code (WAC),
specifically WAC 284-30-391(4)(b) and (5)(d), and so constitutes:
(1) breach of contract (2) breach of the implied covenant of good
faith and fair dealing, (3) violation of Washington's Consumer
Protection Act (CPA) and (4) civil conspiracy.
RULE 30 AND STANDARD ON MOTION FOR PROTECTIVE ORDER
On motion or on its own, the court must limit the frequency or
extent of discovery otherwise allowed by these rules or by local
rule if it determines that: (i) the discovery sought is
unreasonably cumulative or duplicative, or can be obtained from
some other source that is more convenient, less burdensome, or less
expensive (ii) the party seeking discovery has had ample
opportunity to obtain the information by discovery in the action
or(iii) the proposed discovery is outside the scope permitted by
Rule 26(b)(1). Further, pursuant to Rule 26(c)(1), for good cause,
the court may issue an order to protect a party or person from
oppression, or undue burden or expense, including forbidding the
disclosure or discovery or limiting the scope of disclosure or
discovery.
MOTION FOR PROTECTIVE ORDER - TIME, TOPICS IN DISPUTE IN THE
30(b)(6) NOTICE OF DEPOSITION, AND MOTION FOR ATTORNEYS' FEES
The Insurer Defendants move for a protective order either
preventing their Rule 30(b)(6) deponent from being deposed again or
limiting the deposition's length and scope.
Motion to Strike Notice of Deposition
To the extent the Insurer Defendants move for an order striking
Plaintiff's second Rule 30(b)(6) deposition, the motion should be
denied. While Rule 30(d)(1) generally limits a deposition to one
day of 7 hours, the rule allows for additional time if it is
"needed to fairly examine the deponent. The Plaintiffs have shown
that additional time is needed to examine the Insurer Defendants'
Rule 30(b)(6) deponent.
Time - Length of Second 30(b)(6) Deposition
The first deposition of the Insurer Defendants' Rule 30(b)(6)
deponent was over four hours. As stated above, additional time is
needed to examine the Rule 30(b)(6) deponent. Accordingly, the
Plaintiffs should be permitted the seven-hour time limit on this
deponent. To the extent the Insurer Defendants move to limit the
length of the deposition to less than three hours, the motion
should be denied.
Topics No. 1-6 and 9: Regarding Defendant CCC
The Notice of Deposition identified the following as Topics No. 1-6
and 9.
The Insurer Defendants moves for an order protecting its Rule
30(b)(6) deponent from having to respond to these topics, asserting
that the topics are duplicative of written discovery already
provided. The Insurer Defendants agree to provide limited testimony
as to Topic 3.
The Insurer Defendants' motion to limit the scope of the deposition
on Topics 1-6 and 9 should be denied. The discovery sought is
relevant to the case. While written discovery is important, it does
not take the place of depositions.
The Defendant has not shown good cause for the order.
Topic No. 7: Prior 30(b)(6) Topics
The Insurer Defendants argue that this topic was the subject of the
prior Rule 30(b)(6) deposition. The Plaintiffs argue that the prior
designee provided testimony on the storage, maintenance and
retrieval of data, not on the meaning and purpose of the data.
The Insurer Defendants' motion for a protective order should be
granted and the Rule 30(b)(6) deponent protected from having to
testify about Topic 7. The Plaintiffs have already had an
opportunity to ask questions about this spreadsheet, and further
inquiry would be unduly duplicative.
Topics No. 8 and 10: Insurer Defendants' Legal Positions
The Notice of Deposition identified the following as Topics No. 8
and 10.
The Insurer Defendants object to providing testimony on these two
topics, arguing that they seek testimony on the Insurer Defendants'
interpretation of Washington law and their legal duties. They
maintain the information is protected by attorney client privilege.
The Plaintiffs argue that their request should not be taken to
infringe on any privilege.
The Insurer Defendants' motion for an order protecting its Rule
30(b)(6) deponent from testifying on Topics 8 and 10 should be
granted. These topics seek a legal opinion and not facts related to
the case. The Insurer Defendants have shown good cause for issuance
of the order. Rule 26(c)(1).
Topics 11-17: Production Information
The Notice of Deposition identified the following as Topics No.
11-17.
The Insurer Defendants move for a protective order as to these
topics, arguing that they are not relevant to any parties' claim or
defense, are subject to the ESI Protocol order entered in this
case, and have been the subject of near weekly meet-and-confer
sessions. They maintain that further testimony is duplicative and
that the Plaintiffs seek information protected by the
attorney-client privilege and work product doctrine. The Plaintiffs
assert that the information is relevant because it seeks to
discover whether the Defendants have made a reasonable and through
search for responsive documents.
The Insurer Defendants' motion for an order protecting its Rule
30(b)(6) deponent from testifying on Topics 11-17 should be
granted. The Plaintiffs do not respond to the Insurer Defendants
point that these topics may well require testimony from counsel.
These topics, in part, seek information protected by
attorney-client privilege and/or the work product doctrine. The
topics, as written, seek information that is duplicative of
information the Plaintiffs already have in their possession. The
Insurer Defendants have shown good cause for issuance of the order
to protect the deponent from testifying on Topics 11-17. Rule
26(c)(1). This order should not be construed as a way to keep the
parties from continuing to communicate about discovery. The
discovery deadline is still months away. The parties are strongly
encouraged to work together.
Topic 18: Organization of Insurer Defendants' Claims Department
The Notice of Deposition identified the following as Topic No. 18.
The Insurer Defendants move for a protective order as to this
topic, arguing that it is overbroad because it seeks information on
the entire claims department. They maintain that the claims at
issue here involve only the total loss claims department. The
Insurer Defendants agree to provide information regarding the total
loss claims department. The Plaintiffs argue that the Defendants
waived their defense to this topic because they didn't object to it
in their response to the Notice of Deposition. The Plaintiffs also
assert that this topic is relevant because it is important in
determining how the claims process works. Information on all
positions is important, they maintain, because the Insurer
Defendants may not consider upper management as a part of the total
claims loss department even though it may play a role.
The Defendant's motion for a protective order regarding this topic
should be denied. The Defendant has not shown good cause for
issuance of the order. The Plaintiffs have shown that the
information they seek is sufficiently relevant in understanding how
the Defendants' claims process works.
Motion for Attorneys' Fees for Having to Bring the Motion for
Protective Order
Under Rule 37(a)(5)(C), if the motion is granted in part and denied
in part, the court may issue any protective order and may, after
giving an opportunity to be heard, apportion the reasonable
expenses for the motion.
This order grants, in part, and denies, in part, the Defendant's
motion for a protective order. While the Court is disappointed that
the parties did not resolve these issues together in a civil
manner, there are not sufficient grounds to award attorneys' fees
for this motion.
The Defendant's motion for attorneys' fees should be denied.
The Insurer Defendants' Motion for Protective Order is GRANTED as
to: Topics No. 7, 8, 10-17. The Insurer Defendants' designated Rule
30(b)(6) deponent is protected from having to testify on Topics 7,
8, 10-17; and DENIED as to: The motion for an order striking the
Notice of Deposition entirely, Limiting the scope of Topics: 1-6,
9, and 18; and The motion for attorneys' fees.
A full-text copy of the District Court's August 27, 2019 Order is
available at https://tinyurl.com/y5kq7sql from Leagle.com.
Cameron Lundquist, an individual, on behalf of himself and all
others similarly situated & Leeana Lara, Plaintiffs, represented by
Steve W. Berman -- steve@hbsslaw.com -- HAGENS BERMAN SOBOL SHAPIRO
LLP, David L. Woloshin, ASTOR WEISS KAPLAN & MANDEL, LLP, pro hac
vice, Dina S. Ronsayro, ASTOR WEISS KAPLAN & MANDEL, LLP, The
Bellevue Suite 600, 200 South Broad Street, Philadelphia, PA 19102,
pro hac vice, John M. DeStefano -- johnd@hbsslaw.com -- HAGENS
BERMAN SOBOL SHAPIRO LLP, pro hac vice, Marc A. Goldich, AXLER
GOLDICH LLC, 1520 Locust Street, Suite 301 Philadelphia, PA 19102,
pro hac vice & Robert B. Carey -- rob@hbsslaw.com -- HAGENS BERMAN
SOBOL SHAPIRO LLP, pro hac vice.
First National Insurance Company of America, a New Hampshire
Corporation & LM General Insurance Company, Defendants, represented
by Casey Grabenstein -- casey.grabenstein@saul.com -- SAUL EWING
ARNSTEIN & LEHR LLP, pro hac vice, James A. Morsch --
jim.morsch@saul.com -- SAUL EWING ARNSTEIN & LEHR LLP, pro hac
vice, John Michael Silk- silk@wscd.com -- WILSON SMITH COCHRAN &
DICKERSON & Kellie Y. Chen -- kellie.chen@saul.com -- SAUL EWING
ARNSTEIN & LEHR LLP, pro hac vice.
CCC Information Services, Inc., Defendant, represented by Kathleen
M. O'Sullivan -KOSullivan@perkinscoie.com -- PERKINS COIE, Jason R.
Burt -- jason.burt@lw.com -- LATHAM & WATKINS, pro hac vice,
Kathleen P. Lally -- kathleen.lally@lw.com -- LATHAM & WATKINS, pro
hac vice, Marguerite M. Sullivan -- marguerite.sullivan@lw.com --
LATHAM & WATKINS, pro hac vice & Steven J. Pacini --
steven.pacini@lw.com -- LATHAM & WATKINS LLP, pro hac vice.
FORD MOTOR: Court Denies Bid to Strike Dismissal Request
--------------------------------------------------------
The United States District Court for the Eastern District of
Michigan, Southern Division, issued an Order denying Plaintiffs'
Motion to Strike Defendants' Motions to Dismiss in the case
captioned LEN GAMBOA, et al., Plaintiffs, v. FORD MOTOR COMPANY,
ROBERT BOSCH GMBH, ROBERT BOSCH LLC, Defendants. Case No. 18-10106.
(E.D. Mich.).
The Plaintiffs, individually, and on behalf of all other similarly
situated individuals, filed a Complaint against Defendants Ford
Motor Company, Robert Bosch GmbH, and Robert Bosch LLC.
Plaintiffs allege that Defendants unlawfully manufactured and sold
defective vehicles that had defective emissions controls in
violation of: the Racketeer Influenced and Corrupt Organizations
Act (RICO) (Count 1); and various state consumer protection
statutes.
Plaintiffs argue that the Court should strike Defendants' Motions
to Dismiss because it is Plaintiffs' belief that, in the Court's
Order allowing Plaintiffs to file their Consolidated Amended
Complaint (CAC), the Court only gave Defendants the ability to
answer the CAC.
Plaintiffs claim that the Court clearly indicated to the parties
that the dismissal stage has ended, and that Defendants are not
permitted to raise any defenses that were or could have been raised
previously. Plaintiffs further contend that Defendants will have
the chance to raise any relevant arguments in a summary judgment
motion at a later date, but assert that a motion to dismiss is
improper at this juncture.
Defendants claim that the Court gave them the opportunity to file
an answer, and held that Defendants could file additional motions
to dismiss. Defendants express that the Court declared that
Defendants could revive and revisit their motions to dismiss in
response to a consolidated complaint and that doing so would not
unduly prejudice Plaintiffs. Defendants additionally argue that
under Fed. R. Civ. P. 12(f), courts are not permitted to strike
motions because they are not considered pleadings according to Fed.
R. Civ. P. 7(a).
Rule 12(f) permits a federal court to strike from a pleading any
redundant, immaterial, impertinent, or scandalous matter. A court
has liberal discretion to strike such filings as it deems
appropriate.A court should strike a matter if it can confidently
conclude that the portion of the pleading to which the motion is
addressed is redundant or is both irrelevant to the subject matter
of the litigation and prejudicial to the objecting party.
The Court agrees with Defendants.
A motion to strike is the incorrect vehicle for overcoming
Defendants' Motions. Courts can only strike pleadings, which are
limited to the materials listed in Fed. R. Civ. P. 7(a). Since a
motion to dismiss is not considered a pleading, Rule 12(f) does not
provide a sufficient basis for Plaintiffs to strike Defendants'
Motions.
Plaintiffs' request is denied.
A full-text copy of the District Court's August 27, 2019 Order is
available at https://tinyurl.com/y3lagnhb from Leagle.com.
Len Gamboa, Jeff Retmier, Nikiah Nudell, David Bates, Pete Petersen
& William Sparks, Plaintiffs, represented by Caroline F. Bartlett,
Carella, Byrne, Cecchi, Olstein, Brody and Agnello, 5 Becker Farm
Road Roseland, NJ 07068, Christopher A. Seeger, Seeger Weiss LLP,
55 Challenger Road, 6th Floor Ridgefield Park, NJ 07660, David
Stellings, Lieff Cabraser Heimann & Bernstein, 250 Hudson Street,
8th Floor. New York, NY 10013, E. Powell Miller -- epm@miller.law
-- The Miller Law Firm, James E. Cecchi, Carella Byrne, 5 Becker
Farm Road Roseland, NJ 07068, Katherine Irene McBride, Lieff
Cabraser Heimann & Bernstein, Kevin Budner, Lieff Cabraser Heimann
& Bernstein, 250 Hudson Street, 8th Floor, New York, NY 10013,
Melvin B. Hollowell, The Miller Law Firm, P.C., 1001 Woodward Ave.
Suite 850, Detroit, MI 48226, Phong-Chau Nguyen, Lieff Cabraser
Heimann & Bernstein, Scott A. George, Seeger Weiss LLP, 55
Challenger Road, 6th Floor Ridgefield Park, NJ 07660, Sharon S.
Almonrode, The Miller Law Firm, P.C., William Kalas, The Miller Law
Firm, P.C., 1001 Woodward Ave., Suite 850, Detroit, MI 48226,
Wilson McClelland Dunlavey, Lieff Cabraser Heimann and Bernstein,
250 Hudson Street, 8th Floor. New York, NY 10013 & Steve W. Berman
-- steve@hbsslaw.com -- Hagens Berman Sobol Shapiro LLP.
Ford Motor Company, Defendant, represented by Jeffrey M. Yeatman --
jeffrey.yeatman@dlapiper.com -- DLA Piper LLP, Joel A. Dewey --
joel.dewey@dlapiper.com -- DLA Piper LLP, Patrick G. Seyferth --
seyferth@bsplaw.com -- Bush, Seyferth & Paige, Stephanie A.
Douglas, Bush Seyferth & Paige & Susan M. McKeever, Bush Seyferth
Paige, 3001 W. Big Beaver, Ste. 600, Troy, Michigan
Robert Bosch GmbH, Defendant, represented by Matthew D. Slater,
Cleary Gottlieb Steen & Hamilton LLP.
FORD MOTOR: New Jersey Court Dismisses Amended Sisolak Suit
-----------------------------------------------------------
In the case, JOHN SISOLAK and KEVIN BOLCH, Individually and on
Behalf of All Others Similarly Situated, Plaintiffs, v. FORD MOTOR
CO., Defendant, Civil Action No. 18-11821 (MAS) (TJB) (D. N.J.),
Judge Michael A. Shipp of the U.S. District Court for the District
of New Jersey granted Ford's Motion to Dismiss the Amended
Complaint.
The Plaintiffs filed their original Complaint on July 19, 2018. On
Sept. 24, 2018, the Defendant filed its first Motion to Dismiss and
Motion to Strike. On Nov. 5, 2018, the Plaintiffs filed a Motion
to Amend the Complaint and opposition to the Defendant's Motion to
Strike. On Nov. 19, 2018, the Court granted the Plaintiffs' Motion
to Amend and terminated as moot the Defendant's Motion to Strike.
The Plaintiffs' Amended Complaint asserts two counts, the first
under N.J.S.A. 2A:62A-21 ("Firefighters' Act"), and the second
under New Jersey's Product Liability Act, N.J.S.A. 2A:58C-2
("PLA"). The matter arises from Ford's sale and lease of Ford
Explorer models to state agencies, towns, and municipalities
throughout the United States that are modified for law enforcement
and classified as Police Interceptor Vehicles.
The Plaintiffs allege that the Police Interceptor Vehicles
manufactured from 2011 through 2017 are defective and dangerous for
operators and passengers because exhaust and other gases may enter
the passenger compartments of the vehicles. Sisolak and Bolch are
both police officers employed in the Police Department of East
Brunswick Township. From 2014 through the Summer of 2017, both
officers were assigned to drive and operate "car number 321," a
2014 Ford Explorer and one of approximately 25 Ford Explorers owned
by the Township.
The Plaintiffs allege the Ford Explorer Police Interceptor
Vehicles, including car number 321, are dangerous and defective and
neither the Plaintiffs nor the Department were notified that the
vehicles were defective or that vehicle occupants would be exposed
to lethal carbon monoxide and other potentially dangerous gases
while driving the vehicles during routine police duties. The
Plaintiffs both allege that they experienced dizziness, headaches,
and respiratory distress when operating car number 321 and that
they filed Workers' Compensation claims for injuries sustained
during their employment. They bring their action on behalf of
themselves and the members of a proposed class.
The matter comes before the Court upon the Defendant's Motion to
Dismiss the Amended Complaint. Plaintiffs Sisolak and Bolch
opposed, and the Defendant replied.
Judge Shipp finds that Count I of the Amended Complaint in the
present case contains factual allegations which suggest that the
claim would traditionally be considered a product liability claim.
He finds the New Jersey Appellate Division's discussion in Foster
v. Newark Housing Authority instructive in considering the
relationship between the PLA and the Firefighters' Act. In Foster,
the New Jersey Appellate Division considered whether the
Firefighters' Act is subject to New Jersey's Tort Claims Act
("TCA"). The Foster Court stated that, "read literally, the
beginning language of the first section of the Firefighters' Act
suggests an independent cause of action outside the TCA." The
Foster Court also noted, however, "the second section of that
statute shows that is not the case by providing that 'limitations
otherwise accorded under law' will continue to apply. The TCA is
just such a limitation.
Similarly, in the case, the Judge finds that the broad language in
the first section of the Firefighters' Act may seem to suggest an
independent cause of action outside the PLA. When read in
conjunction with the limitations clause, however, and in
consideration of the "expansive and inclusive" language of the PLA,
it would appear that the PLA also serves as a limitation. The
Plaintiffs' arguments with respect to the Firefighters' Act are
creative. Nevertheless, there is no indication that the
legislature intended for the Firefighters' Act to serve as an
exception to the PLA where the alleged facts reflect that the
essential nature of a case falls under the PLA.
Finally, the Judge finds unpersuasive the Plaintiffs' argument that
summary judgment might be granted if, after discovery has been
completed, "the damages sought herein are covered by the PLA". He
says the inquiry in the case is not confined to the ultimate
"damages sought" but, rather, the relevant inquiry is whether the
claim would traditionally be considered a product liability claim.
He finds that the allegations in Count I of the Amended Complaint
have the "essential nature" of design defects, manufacturing
defects, and failure to warn defects, which are considered product
liability claims. He, therefore, finds that the Plaintiffs'
Firefighters' Act claim, as currently pled, is subsumed by the PLA.
The Plaintiffs thus failed to adequately plead a cause of action
pursuant to the Firefighters' Act.
Judge Shipp, accordingly, granted the Defendant's Motion to
Dismiss. The Judge will enter an Order consistent with his
Memorandum Opinion.
A full-text copy of the Court's July 31, 2019 Memorandum Opinion is
available at https://is.gd/xmrszX from Leagle.com.
JOHN SISOLAK, Individually And on Behalf of All Others Similarly
Situated & KEVIN BOLCH, Individually And on Behalf of All Others
Similarly Situated, Plaintiffs, represented by SHELLY A. LEONARD,
Blau Leonard Law Group, LLC.
FORD MOTOR COMPANY, Defendant, represented by MEGAN E. KREBS --
megan.krebs@dlapiper.com -- DLA PIPER LLP.
FREIGHT HANDLERS: Court Conditionally Certifies Class in Kraft Suit
-------------------------------------------------------------------
In the case, JAMES KRAFT, Plaintiff, v. FREIGHT HANDLERS, INC. and
FHI, LLC, Defendants, Case No. 6:18-cv-1469-Orl-41GJK (M.D. Fla.),
Judge Carlos E. Mendoza of the U.S. District Court for the Middle
District of Florida, Orlando Division, granted in part and denied
in part the Plaintiff's Motion to Conditionally Certify Collective
Action and Facilitate Notice to Members of the FLSA Collective.
The Plaintiff seeks certification pursuant to 29 U.S.C. Section
216(b) of the Fair Labor Standards Act ("FLSA") for his overtime
wage dispute. The Defendants provide freight unloading and other
services to customers at distribution centers, warehouse, and
industrial sites throughout the United States. The Plaintiff
alleges that he and others similarly situated were employed by the
Defendants to unload goods from trucks and break down pallets as
"Unloaders," also titled as "Freight Handlers" or "Lumpers."
The Plaintiff further alleges: (1) the Defendants required the
Plaintiff and similarly situated employees to work prior to their
regularly scheduled shifts and before they were clocked in; (2) the
Defendants' managers were instructed to 'clock out' the Plaintiff
and similarly situated employees for approximately one hour each
day while they continued to work; and (3) the Defendants required
the Plaintiff and similarly situated employees to clock out at the
end of the day and remain onsite performing unpaid work
The Plaintiff states that all Freight Handlers were compensated on
a production basis determined by the number and type of trucks
unloaded. Also, he alleges that he and those similarly situated
were not paid overtime because managers were incentivized by
receiving bonuses to perform the illegal actions listed above to
keep labor costs down.
The Plaintiff's Motion seeks an Order certifying the following
class: "all 'Freight Handlers' (also knwon as 'Lumpers' and/or
'Unloaders' and other employees performing similar duties, however
variously titled) employed by the Defendants within the last three
years.
He also seeks his Notice and Consent forms to be approved by the
Court; the ability to send notice via email, U.S. Mail, and text
message; permission to send reminder notices halfway through a
90-day opt-in period; permission for the potential opt-in
Plaintiffs to electronically sign and return consents; and for the
Defendants to identify all the members of the class.
United States Magistrate Judge Gregory J. Kelly issued a Report and
Recommendation ("R&R"), recommending that the Court grants the
Motion in part and conditionally certifies a national class of
employees, except for employees in California. The Plaintiff and
the Defendants both filed Objections to the R&R and Responses to
each other's Objections.
The Defendants object to Magistrate Judge Kelly's factual and legal
findings and argue that the Court should consider their affidavits,
which they contend undermine Plaintiff's assertions of similarity.
They cite Jones v. RS & H, Inc., for the proposition that at this
stage, the Defendants' affidavits and other evidence can be
considered. The Defendants make similar objections to argue that
the Plaintiff has not shown a common policy. They also object to
the class definition proposed by Judge Kelly as impermissible
because it assumes liability by the Defendants.
The Plaintiff only objects to three portions of Magistrate Judge
Kelly's notice provision: language regarding the opt-in Plaintiff's
potential liability for costs, language regarding the opt-in
Plaintiff's potentially needing to appear in the Middle District of
Florida for deposition, and the denial of reminder notices.
After a de novo review of the record, Judge Mendoza agrees with the
analysis set forth in the R&R except for the class definition,
which the parties agreed to modify. Therefore, he adopted in part
the R&R and made a part of the Order to the extent consistent with
that stated therein. He granted in part and denied in part the
Plaintiff's Motion to Conditionally Certify Collective Action and
Facilitate Notice to Members of the FLSA Collective.
The case is conditionally certified as a class action for the
following class: All Employees of Freight Handlers, Inc. and FHI,
LLC with the exception of California employees who: (1) are or were
employed as Freight Handlers (also known as Unloaders or Lumpers or
other employees performing similar duties however variously titled)
during the three years preceding the filing of this suit; and (2)
worked more than forty hours in any work week during the three
years preceding the filing of this suit.
The Judge appointed the Plaintiff as the class counsel.
He approved the proposed notice and Consent to Become Class Member
Pursuant to 29 U.S.C. 216(b) (Doc. 60-2) with the following
revisions: In the section on Effects of Joining Suit, the language
should be modified as follows: "If the Defendants prevail, then you
will be responsible for their costs in this matter. While the suit
is pending, you may be required to provide information or sit for
depositions and testify in court in the Orlando Division of the
Middle District of Florida. The final sentence should be amended
to reflect that the potential class member will not be responsible
to pay Plaintiff's counsel's attorney's fees directly. The Notice
should state that the potential class members have the right to
retain their own counsel."
On Aug. 12, 2019, the Defendants will provide the Plaintiff with
the names, job titles, dates of employment, last known addresses,
telephone numbers, and email addresses for everyone in the class.
Within 10 days of receiving the above list, the Plaintiff will send
the approved Notice and Consent Forms containing the revision above
with a self-addressed return envelope to each putative class member
via first class mail and email.
Within seven days from date of sending Notice deadlines, the
Plaintiff will notify the Court of the date the Notices were sent.
The Potential class members may electronically sign their
consents.
The Judge denied the Plaintiff's Motion in all other respects.
A full-text copy of the Court's July 31, 2019 Order is available at
https://is.gd/WNQ757 from Leagle.com.
James Kraft, on behalf of himself and those similarly situated,
Plaintiff, represented by Camar R. Jones -- cjones@shavitzlaw.com
-- Shavitz Law Group PA, Gregg I. Shavitz --
gshavitz@shavitzlaw.com -- Shavitz Law Group PA, Matthew Ryan
Gunter -- mgunter@forthepeople.com -- Morgan & Morgan, PA & Paul M.
Botros -- pbotros@forthepeople.com -- Morgan & Morgan, PA.
Freight Handlers, Inc., a Foreign For Profit Corporation & FHI,
LLC, a Foreign Limited Liability Company, Defendants, represented
by Ashley Marissa Schachter -- aschachter@bakerlaw.com -- Baker &
Hostetler, LLP, Chang Yu -- ayu@kilpatricktownsend.com --
Kilpatrick Townsend & Stockton, LLP, pro hac vice, Kevin W.
Shaughnessy -- kshaughnessy@bakerlaw.com -- Baker & Hostetler, LLP,
Randall D. Avram -- ravram@kilpatricktownsend.com -- Kilpatrick
Townsend & Stockton, LLP, pro hac vice & Yendelela Neely Holston --
yholston@kilpatricktownsend.com -- Kilpatrick Townsend & Stockton
LLP, pro hac vice.
GEICO GENERAL: Court Certifies Class in PIP Evaluation Suit
-----------------------------------------------------------
The Superior Court of Delaware issued an Opinion granting
Plaintiffs' Motion for Class Certification in the case captioned
YVONNE GREEN, WILMINGTON PAIN & REHABILITATION CENTER, AND
REHABILITATION ASSOCIATES, P.A., on behalf of themselves and all
others similarly situated, Plaintiffs, v. GEICO GENERAL INSURANCE
COMPANY, Defendant. C.A. No. N17C-03-242 EMD CCLD. (Del. Super.).
Yvonne Green, Wilmington Pain & Rehabilitation Center (WPRC), and
Rehabilitation Associates, P.A., on behalf of themselves and others
similarly situated filed suit against GEICO General Insurance
Company. As alleged, Geico uses two computerized models to evaluate
personal injury protection (PIP) claims of its insureds. The
Plaintiffs argue that Geico uses the Rules to deny valid claims
without evaluating the facts underlying the claims.
In their submissions, the Plaintiffs propose four classes:
1. The Claimant Class - GRR (All Counts): All persons who,
during the period from March 10, 2011 to the date of class notice,
submitted a claim to Geico pursuant to Geico's Delaware automobile
insurance policy's PIP coverage, which claim:
a. was paid by Geico at an amount less than the stated policy
limits, and
b. was reduced by Geico as a result of the Geographic
Reduction Rule.
2. The Claimant Class - PMR (All Counts): All persons who,
during the period from March 10, 2011 to the date of class notice,
submitted a claim to Geico pursuant to Geico's Delaware automobile
insurance policy's PIP coverage, which claim:
a. was paid by Geico at an amount less than the stated policy
limits, and
b. was denied by Geico as a result of the Passive Modality
Rule.
3. The Insured Class - GRR (Count III): All persons who, during
the period from March 10, 2011 to the date of class notice, were
insureds whose claim was submitted to Geico pursuant to Geico's
Delaware automobile insurance policy's PIP coverage which claim:
a. was paid by Geico at an amount less than the stated policy
limits and
b. was reduced by Geico as a result of Geico's Geographic
Reduction Rule.
4. The Insured Class - PMR (Count III): All persons who, during
the period from March 10, 2011 to the date of class notice, were
insureds whose claim was submitted to Geico pursuant to Geico's
Delaware automobile insurance policy's PIP coverage which claim:
a. was paid by Geico at an amount less than the stated policy
limits and
b. was denied by Geico as a result of Geico's Passive
Modality Rule.
Delaware follows a two-step analysis to certify a class. The first
step requires that a class satisfy the following requirements in
Civil Rule 23(a): (1) numerosity, (2) commonality, (3) typicality,
and (4) adequacy.
If the Civil Rule 23(a) requirements are met, the second step is to
properly fit the action within the framework provided for in Civil
Rule 23(b). Civil Rule 23(b) sets forth three disjunctive
requirements: (1) prosecution of separate actions would create a
risk of (i) inconsistent or varying adjudications or (ii)
adjudications as to one member of the class would be dispositive as
to members that are not parties to the adjudications (2) the party
opposing the class has acted or refused to act in a manner
generally applicable to the class, thereby making appropriate final
equitable relief or corresponding declaratory relief with respect
to the class as a whole or (3) cases where common issues of law or
fact predominate.
The Plaintiffs argue for class certification under all three
categories in Civil Rule 23(b)
CIVIL RULE 23(a)
Numerosity
First, a class must be so numerous that joinder of all members is
impracticable in order to meet the numerosity requirement. Although
there is no numerical cutoff under the numerosity requirement,
numbers in the proposed class in excess of forty, and particularly
in excess of one hundred, have sustained the numerosity
requirement.
The Plaintiffs allege that there are 500 class members. Geico does
not dispute that the Plaintiffs have satisfied the numerosity
requirement. Proceeding as a class action allows the Court to
resolve common issues that would otherwise be litigated in hundreds
of cases. Therefore, the Court finds that the Plaintiffs satisfy
the numerosity requirement.
Commonality
There must be questions of law or fact common to the class in order
to meet the commonality requirement. In addition, the Plaintiffs
must have suffered the same injury.
The Plaintiffs argue that they raise common contentions of law and
fact in each of the counts. According to the Plaintiffs, the common
contention relevant to each count is that Geico's use of systematic
rules to impose a cap (GRR) and exclusion (PMR), in lieu of a
proper investigation, violates its duty under its insurance
policies and law. The Plaintiffs assert that individual issues are
not relevant to the counts.
Declaratory Judgment
The Plaintiffs and Geico contend that Geico has an obligation to
pay medical expenses that are reasonable and necessary under
Geico's insurance policies with the Plaintiffs, and under Section
2118. Geico, however, goes on to further claim that the Plaintiffs
cannot prevail without showing that each of the Plaintiffs' claims
were reasonable and necessary.
According to Geico, this requires an individualized analysis that
prevents certification under Civil Rule 23. Geico heavily relies on
Johnson v. GEICO Cas. Co. to support its argument. In that case
with virtually identical facts, the Federal District Court for the
District of Delaware found that the plaintiffs' claim for
declaratory judgment did not meet the commonality requirement for
declaratory judgment.
The Plaintiffs' allegations that Geico purposefully failed to
promptly process a claim in good faith by using the Rules instead
of some other type of process seem to bear a tenuous connection to
the broad processing language of Section 2118B. Still, that and
Geico's use of the Rules and alleged failure to individually
investigate and properly rule on claims until after the Plaintiffs'
request re-evaluation and Geico's conflicting information may
violate Section 2118B.
An insured is allowed to seek reimbursement for reasonable and
necessary expenses under 2118(a)(2) by making a written request for
payment. Section 2118B(c) requires the insurer to process the
written request within thirty days and either pay it as reasonable
and necessary or provide an explanation for denying the request as
unreasonable and unnecessary. It could be determined that the Rules
do not constitute a valid processing and denial of those written
requests as set forth in 2118B(c).
Here, the Plaintiffs raise a common question about whether Geico's
use of the Rules violates Section 2118, in lieu of claiming that
Geico made unreasonable payments to the Plaintiffs, which raises
individualized questions. In simpler words, the Plaintiffs have
attacked the computer software programs, i.e., the Rules, rather
than alleging the amount the insurers ultimately paid was
unreasonable.
Breach of Contract
A breach of an insurance contract requires that (i) there is a
valid insurance contract (ii) the insured plaintiff complied with
conditions precedent to the insurer offering coverage, and (iii)
the insurer failed to offer the required coverage. The insured
plaintiff bears the burden of proving that the insured plaintiff's
claims are reasonable and necessary.
Here, as in Johnson, the Court finds that the Plaintiffs meet the
commonality requirement regarding the breach of contract claim.
This is because the Plaintiffs raise common questions of law such
as whether the Rules constitute a secret exclusion to the insurance
policies and violate Geico's contractual obligation to pay
premiums.
Bad Faith Breach of Contract
Under Delaware law, insurance companies owe a duty of good faith
and fair dealing to their insureds. Where an insurer fails to
investigate or process a claim or delays payment in bad faith, it
is in breach of the implied obligations of good faith and fair
dealing underlying all contractual obligations. An insurer engages
in bad faith breach of contract regarding an insurance contract
when the insured plaintiff shows that the insurer's refusal to
honor [the claim] was clearly without any reasonable
justification.
Here, as in Johnson, the Court finds that the Plaintiffs meet the
commonality requirement regarding the bad faith breach of contract
claim. This is because the Plaintiffs raise common questions such
as (i) whether Geico's use of the Rules constitutes an arbitrary
reduction or denial of claims and (ii) whether Geico has any
personalized review of claims by humans or factors other than the
CPT code, geozip code, etc.
Therefore, the Court finds that the Plaintiffs meet the commonality
requirement for all counts and proposed classes.
Typicality
The claims or defenses of the representative parties [must be]
typical of the claims or defenses of the class in order to meet the
typicality requirement. In this case, neither party disputes that
the Plaintiffs meet this requirement. The Court finds that the
class representatives' claims are typical of all of the Plaintiffs'
claims. This is because Geico has allegedly (i) failed to conduct
reasonable investigations into all of the Plaintiffs' claims and
(ii) used the Rules to arbitrary deny all of the Plaintiffs'
claims.
Adequacy
Finally, in order to meet the adequacy requirement, the
representative parties must fairly and adequately protect the
interests of the class. A conflict concerning the allocation of
remedies amongst class members with competing interest can be
fundamental and can thus render a representative plaintiff
inadequate.
Geico argues that there is an inherent conflict between the
Plaintiffs. To support its argument, Geico uses a hypothetical
example: if the Plaintiffs prevail, Geico may need to pay a
Plaintiff the amount of the Plaintiff's policy cap, rather than an
amount reduced by the Rules; then, there may be a conflict between
medical providers if the policy cap is not sufficient to pay all of
the money that multiple medical providers are owed.
The Court notes that this hypothetical conflict may never
materialize. Even if the conflict does exist, the conflict does not
defeat the adequacy requirement. As the Court noted in Johnson,
class representatives often compete for a limited pool of funds for
relief, but this does not defeat a class representative's ability
to adequately serve the interest of a class.
23(b)(3)
Lastly, Civil Rule 23(b)(3) is satisfied if: The Court finds that
the questions of law or fact common to the members of the class
predominate over any questions affecting only individual members,
and that a class action is superior to other available methods for
the fair and efficient adjudication of the controversy. The matter
pertinent to the findings include (A) The interest of members of
the class in individually controlling the prosecution or defense of
separate actions (B) The extent and nature of any litigation
concerning the controversy already commenced by or against members
of the class (C) The desirability or undesirability of
concentrating the litigation of the claims in the particular forum
(D) The difficulties likely to be encountered in the management of
a class action.
In order to certify a class action under Civil 23(b)(3), the
plaintiffs must (i) raise common questions of law or fact, and (ii)
class action must be superior to other methods of resolution (such
as joinder). The essential elements of the cause of action may not
require individual treatment in order for plaintiffs to raise
common questions of law or fact. But, plaintiffs can form a class
action to litigate one issue.
The Plaintiffs contend that they are owed the amount that Geico has
withheld under the GRR and PMR as damages because Geico violated
Section 2118B and the terms of the policies. In response, Geico
argues that the Plaintiffs have not sufficiently presented a
damages model. So, Geico claims that it cannot assess whether
individual claims for damages will predominate common questions of
liability in trial. In its Reply, the Plaintiffs state that the
Plaintiffs were not able to present a damages model because Geico
has not produced discovery on damages.
Here, the Court will certify the plaintiffs' class for the limited
purpose of determining whether Geico's use of the GRR and PMR was a
breach of contract, bad faith breach of contract, and to rule on a
declaratory judgment.
A full-text copy of the Superior Court's August 27, 2019 Opinion is
available at https://tinyurl.com/y36ware9 from Leagle.com.
Richard H. Cross, Jr. -- rcross@crosslaw.com -- Esquire,
Christopher P. Simon -- csimon@crosslaw.com
Esquire, Cross & Simon, LLC, Wilmington, Delaware Attorneys for
Plaintiffs.
Paul A. Bradley, Esquire, Stephanie A. Fox, Esquire, Maron Marvel
Bradley Anderson & Tardy LLC, 1201 North Market Street, Suite 900,
Wilmington, DE 19801, George M. Church -- gchurch@
milesstockbridge.com -- Esquire, Laura A. Cellucci, Esquire --
lcellucci@milesstockbridge.com -- Miles & Stockbridge P.C.,
Baltimore, Maryland, Meloney Perry -- mperry@mperrylaw.com -- Perry
Law, P.C., Dallas, Texas Attorneys for Defendant GEICO General
Insurance Company.
GIROS RAPIDEZ: Sent Unsolicited Texts, Griffin Suit Asserts
-----------------------------------------------------------
BRYAN ASHLEY GRIFFIN, individually and on behalf of all others
similarly situated v. GIROS RAPIDEZ, LLC, Case No.
0:19-cv-62186-XXXX (S.D. Fla., Aug. 31, 2019), alleges that the
Defendant caused thousands of unsolicited marketing text messages
to be sent to the cellular telephones of the Plaintiff and Class
Members, causing them injuries pursuant to the Telephone Consumer
Protection Act, including invasion of their privacy, aggravation,
annoyance, intrusion on seclusion, trespass, and conversion.
Giros is a Florida limited liability company, with a principal
address in Hollywood, Florida. The Defendant is an international
currier and/or shipping company. The Defendant directs, markets,
and provides substantial business activities throughout the State
of Florida.[BN]
The Plaintiff is represented by:
Jibrael S. Hindi, Esq.
Thomas J. Patti, Esq.
THE LAW OFFICES OF JIBRAEL S. HINDI
110 SE 6th Street, Suite 1744
Fort Lauderdale, FL 33301
Telephone: (954) 907-1136
Facsimile: (855) 529-9540
E-mail: jibrael@jibraellaw.com
tom@jibraellaw.com
H.E. BUTT: Meza et al Sue over Savings & Retirement Plan
--------------------------------------------------------
Marvin Montgomery and Francisco Meza, as representatives of a class
of similarly situated persons, and on behalf of the H-E-B Savings &
Retirement Plan, the Plaintiffs, v. H.E. Butt Grocery Company, the
H-E-B Savings & Retirement Plan Investment & Administration
Committee, and John and Jane Does 1-20, the Defendants, Case No.
5:19-cv-01063 (W.D. Tex., Sept. 3, 2019), alleges that Defendants
have breached their fiduciary duties and engaged in other unlawful
conduct to the detriment of Plaintiffs, the Retirement Plan, and
the Class.
The Defendants have failed to administer the Plan in the best
interest of participants and have failed to employ a prudent
process for managing the Plan.
The Plaintiffs bring the action to recover all losses caused by
Defendants' unlawful conduct, prevent further similar conduct, and
obtain equitable and other relief as provided by the Employee
Retirement Income Security Act of 1974.[BN]
Counsel for the Plaintiffs and the proposed Class are:
Joe Kendall, Esq.
KENDALL LAW GROUP, PLLC
3811 Turtle Creek, Suite 1450
Dallas, TX 75219
Telephone: 214-744-3000
Facsimile: 214-744-3015
E-mail: jkendall@kendalllawgroup.com
- and -
Paul J. Lukas, Esq.
Kai H. Richter, Esq.
Brock J. Specht, Esq.
Carl F. Engstrom, Esq.
Brandon T. McDonough, Esq.
NICHOLS KASTER, PLLP
4600 IDS Center, 80 S 8 th Street
Minneapolis, MN 55402
Telephone: 612-256-3200
Facsimile: 612-338-4878
E-mail: lukas@nka.com
krichter@nka.com
bspecht@nka.com
cengstrom@nka.com
bmcdonough@nka.com
HALLRICH INC: Approval of Arbitration Bid in Jefferis Recommended
-----------------------------------------------------------------
In the case, MARK JEFFERIS, Plaintiff, v. HALLRICH INCORPORATED, et
al., Defendants, Case No. 1:18-cv-687 (S.D. Ohio), Magistrate Judge
Karen L. Litkovitz of the U.S. District Court for the Southern
District of Ohio, Western Division, recommended that (1) the
Defendants' motion to dismiss the Plaintiffs' class and collective
action for lack of subject matter jurisdiction and to compel
mediation and arbitration be granted; (2) the arbitration agreement
be enforced without regard to the provisions requiring initiation
of mediation within six months of accrual of an Fair Labor
Standards Act ("FLSA") claim and arbitration within 14 days
thereafter; and (3) the case be dismissed without prejudice.
Plaintiff Jefferis and putative Opt-In Plaintiff Katie Reeder, on
behalf of themselves and similarly-situated individuals, bring the
action against Defendants Hallrich and A.E. Szambecki alleging
claims under the FLSA; the Ohio Constitution, Article II, Section
34a; the Ohio Prompt Pay Act, Ohio Rev. Code Section 4113.15; and
Ohio Rev. Code Section 2307.60. They allege that the Defendants
violated federal and state law by failing to adequately reimburse
the pizza delivery drivers they employed for delivery-related
expenses, thereby failing to pay the legally-mandated minimum wage
for all hours worked.
Defendant Hallrich is a Pizza Hut International Franchisee that
operates in several states and employs or employed the Plaintiffs.
Defendant Szambecki is the CEO of Hallrich.
During the hiring process at Hallrich, employees are required to
electronically sign a "Dispute Resolution Plan." The Plan states
that it is intended to create an exclusive mechanism for the final
resolution of all Disputes falling within its terms. It states
that it applies to any matter related to the relationship between
the Plaintiffs and the Company, including any allegations of wage
disputes over compensation, expense reimbursement, or wages.
The Plan outlines a two-step process that an aggrieved party must
complete in order to seek recovery for a claim against Hallrich.
First, the dispute must be submitted to mediation within six months
of the date of the incident giving rise to the dispute. Second, if
the dispute is not resolved through mediation, the aggrieved party
must initiate arbitration proceedings within 14 days from the date
the mediation process has been concluded or within 45 days of the
date mediation was requested. Failure of a party to comply with
the time limits under the Plan bars relief to the aggrieved party.
The Plan also provides that it may be terminated by the Company at
any time. However, such termination will not be effective: 1.
Until 60 days after notice of such termination is given to
Employees; or 2. As to any Disputes which arose prior to the date
of such termination. The Plaintiffs signed the Plan during new
employee onboarding at the company.
The Defendants move to compel mediation and arbitration in
accordance with the terms of the Plan. The Defendants allege that
the plaintiffs' claims arise from their respective employment with
Hallrich, and the Class and Collective Action Complaint alleges
workplace-related claims under the FLSA and Ohio law. They contend
that because the Plaintiffs' claims are covered by the Plan, the
Court should compel mediation and arbitration and dismiss the
lawsuit.
The Plaintiffs oppose the Defendants' motion to compel mediation
and arbitration on three bases: (1) the Plan signed by the
Plaintiffs is an illusory promise, not a contract, and is
unenforceable; (2) the Plan attempts to illegally waive the
relevant statute of limitations; and (3) the Plan violates the Ohio
Constitution, Article II, Section 34a.
Magistrate Judge Litkovitz finds that the Plan does not give the
Defendants an unfettered right to alter the terms of the Plan such
that it is unenforceable for lack of mutuality of obligation. The
Defendants' motion to compel should not be denied on this basis.
She also finds that the Plan is clear as to the parties' intent on
severability of unenforceable provisions: such provisions should be
severed from the Plan and the remainder of the Plan should be
enforced. This is not a case where the unenforceable provisions
are so overwhelming as to 'taint' the rest of the agreement."
Accordingly, the arbitration agreement should be enforced without
regard to the provisions requiring initiation of mediation within
six months of accrual of an FLSA claim and arbitration within 14
days thereafter.
The Judge further finds that the Plaintiffs have failed to explain
how the Plan's requirements for mediation and arbitration deprive
them of any rights or remedies under Section 34a. They have not
cited any legal authority to support their position that a Section
34a wage claim cannot be submitted to mediation or arbitration.
Their argument that the Plan violates Section 34a is not well-taken
and they should be required to submit their Section 34a claims to
mediation and arbitration in accordance with the Plan.
Finally, she determines that the Plan, with the severance of the
provisions specifying a six-month limitation period (for mediation)
and 14-day limitation period (for arbitration), is enforceable and
all of the Plaintiffs' claims are subject to arbitration.
Therefore, she concludes that dismissal without prejudice, rather
than a stay of proceedings pending the conclusion of arbitration,
is appropriate.
Based on the foregoing, Magistrate Judge Litkovitz recommended
that: (1) the Defendants' motion to dismiss the Plaintiffs' class
and collective action for lack of subject matter jurisdiction and
to compel mediation and arbitration should be granted; (2) the
arbitration agreement should be enforced without regard to the
provisions requiring initiation of mediation within six months of
accrual of an FLSA claim and arbitration within 14 days thereafter;
and (3) the case should be dismissed without prejudice from the
docket of the Court.
A full-text copy of the Court's July 31, 2019 Report &
Recommendation is available at https://is.gd/YUHtK4 from
Leagle.com.
Mark Jefferis, Plaintiff, represented by Andrew Biller --
abiller@msdlegal.com -- Biller & Kimble, LLC, Andrew P. Kimble --
akimble@msdlegal.com -- Biller & Kimble, LLC Of Counsel Markovits,
Stock & DeMarco, LLC & Philip J. Krzeski -- pkrzeski@msdlegal.com
-- Biller & Kimble, LLC Of Counsel Markovits, Stock & DeMarco,
LLC.
Hallrich Incorporated & A.E. Szambecki, Defendants, represented by
John W. McKenzie -- jmckenzie@kwwlaborlaw.com -- & John W.
Hofstetter -- jhofstetter@kwwlaborlaw.com -- Kastner Westman &
Wilkins, LLC.
HEADWAY TECH: Fahey Sues Over HDD Suspension Assembly Price-fixing
------------------------------------------------------------------
Brian Fahey and Peter Sanchez, individually and on behalf of all
others similarly situated, Plaintiff, v. Headway Technologies,
Inc., Hutchinson Technology Inc., Magnecomp Precision Technology
Public Co., Ltd., NAT Peripheral (Dong Guan) Co., Ltd., NAT
Peripheral (H.K.) Co., Ltd, NHK Spring Co. Ltd., NHK International
Corporation, NHK Spring (Thailand) Co., Ltd., NHK Spring Precision
(Guangzhou) Co., Ltd., SAE Magnetics (H.K.) Ltd. and TDK
Corporation, Defendants, Case No. 19-cv-12407, (E.D. Mich., August
15, 2019), seeks damages, injunctive relief and other relief
pursuant to the Sherman Act, federal antitrust laws, state
antitrust, unfair competition, consumer protection laws and the
laws of unjust enrichment.
Defendants are manufacturers of hard disk drive suspension
assemblies. Plaintiff purchased at least one HDD suspension
assembly indirectly from at least one Defendant and claims that
they conspired to fix prices of and allocate market shares for
these suspension assemblies.
Suspension assemblies are a component of hard disk drives and are
installed in a variety of electronic products. [BN]
Plaintiff is represented by:
James P. Allen, Sr., Esq.
ALLEN BROTHERS, PLLC
400 Monroe, Ste. 620
Detroit, MI 48226
Tel: (313) 962-7777
Email: jamesallen@allenbrotherspllc.com
- and -
Eugene A. Spector, Esq.
William G. Caldes, Esq.
Mary Ann Geppert, Esq.
SPECTOR ROSEMAN & KODROFF, PC
2001 Market Street, Suite 3420
Philadelphia, PA 19103
Tel: (215) 496-0300
Email: espector@srkattorneys.com
bcaldes@srkattorneys.com
HEAVENLY YUMMIES: Fails to Pay Minimum and OT Wages, Rivera Says
----------------------------------------------------------------
EVIN FERMIN DIAZ RIVERA, individually and on behalf of all
similarly situated employees v. HEAVENLY YUMMIES, INC., HESHAM
AMIN, and REDA ABDALLAH, Case No. 1:19-cv-04987 (E.D.N.Y., Aug. 31,
2019), accuses the Defendants of violating the Fair Labor Standards
Act and New York Labor Law because the Plaintiff and other hourly
employees were paid below the New York minimum wage rate, zero
over-time pay, and no spread-of-hours pay.
Heavenly Yummies, Inc., is a corporation duly organized under the
laws of New York state, with a principal place of business located
at 23-10 38th Avenue, in Long Island City, New York. The
Individual Defendants are officers or employees of the Company.
The Defendants control several quick serve restaurants ("QSR")
including Heavenly Yummies, a falafel QSR in Queens.[BN]
The Plaintiff is represented by:
Robert Santino, Esq.
Richard M. Garbarini, Esq.
GARBARINI FITZGERALD P.C.
250 Park Ave., 7th Floor
New York, NY 10177
Telephone: (212) 300-5358
Facsimile: (888) 265-7054
E-mail: rgarbarini@garbarinilaw.com
HUDSON BANK: Court OKs Dismissal of J. Lin's FDCPA Suit
-------------------------------------------------------
The United States District Court for the District of New Jersey
issued an Opinion granting Defendants' Motion to Dismiss in the
case captioned JAY LIN and IRENE LIN, on behalf of themselves and
all others similarly situated, Plaintiff, v. HUDSON CITY SAVINGS
BANK, M&T BANK, and PARKER McCAY, P.A., Defendants. Civil Action
No. 3:18-cv-15387-BRM-LHG. (D.N. J.).
The Plaintiffs filed a Complaint, in which they sought class action
certification, against the Defendants asserting causes of action
for: violations of the automatic stay imposed by 11 U.S.C. Section
362(a) (Count One), violations of the Fair Debt Collection
Practices Act (FDCPA) (Count Two), violations of the New Jersey
Consumer Fraud Act (NJCFA) (Count Three) and unjust enrichment
(Count Four).
The Defendants argue this Court lacks subject matter jurisdiction
over this action pursuant to the Rooker-Feldman doctrine, this
Court should abstain from exercising jurisdiction pursuant to the
Colorado River abstention doctrine, Plaintiffs' claims are barred
by the doctrines of collateral estoppel and res judicata, and that
notwithstanding these doctrines, Plaintiffs fail to state a claim
for which relief can be granted. Plaintiffs argue this Court should
deny Defendants' Motions to Dismiss because neither Defendant
submitted Corporate Disclosure Statements as required by Rule 7.1
and Defendants' reliance on Rule 12(b)(1) is wholly without merit
in the absence of existing state court judgment[s] subject to
relitigation in federal court.
Rooker-Feldman Doctrine
Pursuant to the Rooker-Feldman doctrine, federal district courts
lack subject matter jurisdiction to review and reverse state court
judgments. Rooker-Feldman serves to bar a claim when: (1) the
federal claim was actually litigated in state court before the
plaintiff filed the federal action or (2) if the federal claim is
inextricably intertwined with the state adjudication, meaning that
federal relief can only be predicated upon a conviction that the
state court was wrong.
Here, the four criteria necessary to invoke the Rooker-Feldman
doctrine are satisfied. First, final judgment was entered in the
Foreclosure Action against Plaintiffs on July 28, 2017. Prior to
the entry of final judgment in the Foreclosure Action, Plaintiffs
argued unsuccessfully that the action should have been stayed due
to Zucker Goldberg's bankruptcy and by operation of the automatic
stay. Second, Plaintiffs complain of injuries caused by the
Foreclosure Action, as they specifically allege Defendants
continued to prosecute Plaintiffs' foreclosure case and caused
damages and irreparable damages to Plaintiffs. Third, the entry of
final judgment in the Foreclosure Action and the orders denying
Plaintiffs' other motions were all rendered prior to Plaintiffs'
filing of this action. Finally, Plaintiffs seek a determination
from this Court that would necessarily find that the Superior Court
erred with respect to the validity of the foreclosure proceedings,
thereby requiring this Court to improperly undertake the role of
reviewing and overruling orders from the Superior Court.
The Rooker-Feldman doctrine deprives this Court of subject matter
jurisdiction to hear this matter.
Colorado River Abstention Doctrine
Under the Colorado River abstention doctrine, a federal court may
abstain exercising jurisdiction when there is a parallel concurrent
proceeding pending in state court. Colo. River Water Conservation
Dist. v. United States, 424 U.S. 800, 813 (1976). In the context of
Colorado River abstention, parallel means that the state and
federal proceedings involve the same parties and substantially
identical claims [raising] nearly identical allegations and
issues.
Here, this action has the same parties as did the Foreclosure
Action and identical underlying operative facts from which
Plaintiffs claim they are entitled to relief. Plaintiffs merely
craft different causes of action to seek relief from the
disposition of their state case. Moreover, exceptional
circumstances, as defined in Colorado River, exist such that this
Court should abstain from exercising jurisdiction: exercising
jurisdiction over this matter would create concurrent jurisdiction
as well as the potential for contradicting rulings; any ruling from
this Court in Plaintiffs' favor would implicate the validity of the
state court's judgments; and the state court exercised jurisdiction
over this matter far before the Complaint was filed before this
Court.
Accordingly, this Court abstains from asserting jurisdiction.
Entire Controversy Doctrine
The doctrine requires a party to bring in one action all
affirmative claims that it might have against another party or be
forever barred from bringing a subsequent action involving the same
underlying facts. The central consideration is whether the claims
arise from related facts or the same transaction or series of
transactions.
The purposes of the doctrine are threefold: (1) the need for
complete and final disposition through the avoidance of piecemeal
decisions (2) fairness to parties to the action and those with a
material interest in the action and (3) efficiency and the
avoidance of waste and the reduction of delay.
The entire controversy doctrine applies to foreclosure proceedings
but encompasses only germane counterclaims. New Jersey courts have
held that the exact claims raised by Plaintiffs herein FDCPA,
NJCFA, and unjust enrichment are indeed germane counterclaims that
must be raised during a foreclosure action. Plaintiffs failed to
assert these claims in the Foreclosure Action.
The entire controversy doctrine bars Plaintiffs' suit.
Res Judicata (Claim Preclusion)
The doctrine of res judicata, or claim preclusion, is a
court-created rule that is designed to draw a line between the
meritorious claim on the one hand and the vexatious, repetitious
and needless claim on the other hand. The doctrine bars a party
from initiating a second suit against the same adversary based on
the same `cause of action' as the first suit.
Here, res judicata bars Plaintiffs' claims against Defendants.
Plaintiffs' claims arise from the same transactions and occurrences
as the Foreclosure Action, and the issues raised in the Complaint
both could have and in some cases were raised in the Foreclosure
Action. Moreover, it is indisputable that Plaintiffs and Hudson
were parties to the Foreclosure Action and that a final judgment
was entered therein.
Therefore, res judicata precludes Plaintiffs' claims.
Collateral Estoppel
Finally, Plaintiffs' claims are similarly precluded by the doctrine
of collateral estoppel. Collateral estoppel prevents a party from
re-litigating an issue when: (1) the issue to be precluded is
identical to the issue decided in the prior proceeding (2) the
issue was actually litigated in the prior proceeding (3) the court
in the prior proceeding issued a judgment on the merits (4) the
determination of the issue was essential to the prior judgment and
(5) the party against whom the doctrine is asserted was a party to
or in privity with a party to the earlier proceeding.
Here, Plaintiffs seek to re-litigate before this Court an identical
issue for which a judgment on the merits was rendered in the
Foreclosure Action. Accordingly, the doctrine of collateral
estoppel bars Plaintiffs' suit as well.
Accordingly, the Defendants' Motions to Dismiss are granted and the
Complaint is dismissed without prejudice.
A full-text copy of the District Court's August 27, 2019 Opinion is
available at
https://tinyurl.com/y69cjesd from Leagle.com.
Jay Lin, Lead Plaintiff, represented by JAY J. LIN --
jlin168888@aol.com -- JAY LIN, on behalf of themselves and all
others similarly situated, Plaintiff, pro se.
IRENE LIN, on behalf of themselves and all others similarly
situated, Plaintiff, represented by JAY J. LIN.
HUDSON CITY SAVINGS BANK & M&T BANK, Defendants, represented by
FRED W. HOENSCH, Parker Ibrahim & Berg LLP, JAMES PAUL BERG, PARKER
IBRAHIM & BERG LLP, MARISSA EDWARDS, PARKER IBRAHIM & BERG LLP &
SCOTT W. PARKER, PARKER IBRAHIM & BERG LLP, 1635 Market St Fl 11
Philadelphia, PA, 19103-2219
PARKER MCCAY PA, Defendant, represented by ANDREW CHRISTOPHER
SAYLES -- asayles@connellfoley.com -- CONNELL FOLEY LLP.
HUDSON HALL: Underpays Bartenders, Braunstein Suit Alleges
----------------------------------------------------------
TINA BRAUNSTEIN, individually and on behalf of all others similarly
situated, Plaintiff v. HUDSON HALL, LLC d/b/a MERCADO LITTLE SPAIN;
and JOSE RAMON ANDRES PUERTA a/k/a JOSE ANDRES, Case No.
1:19-cv-07983 (S.D.N.Y., Aug. 26, 2019) seeks to recover from the
Defendants unpaid wages and overtime compensation, interest,
liquidated damages, attorneys' fees, and costs under the Fair Labor
Standards Act.
The Plaintiff Braunstein was employed by the Defendant as
bartender.
Hudson Hall, LLC is a corporation organized and existing under the
laws of the State of New York that owns and operates numerous bars,
kiosks, and restaurants at the Mercado Little Spain food court in
Hudson Yards. [BN]
The Plaintiff is represented by:
D. Maimon Kirschenbaum, Esq.
Denise Schulman, Esq.
JOSEPH KIRSCHENBAUM LLP
32 Broadway, Suite 601
New York, NY 10004
Tel: (212) 688-5640
Fax: (212) 688-2548
INSURANCE LINE: Robinson Sues over Illegal Telephone Calls
----------------------------------------------------------
FREDERICK ROBINSON, individually and on behalf of all others
similarly situated, the Plaintiff, vs. INSURANCE LINE ONE, LLC, and
DOES 1 through 10, inclusive, the Defendants, Case No.
2:19-cv-07602 (C.D. Cal., Sept. 3, 2019), seeks damages and any
other available legal or equitable remedies resulting the illegal
actions of Insurance Line One LLC, in negligently, knowingly,
and/or willfully contacting Plaintiff on his home telephone in
violation of the Telephone Consumer Protection Act, thereby
invading Plaintiff's privacy.
Beginning in or around July 2018, Defendant contacted the Plaintiff
on his home telephone ending in -6241, in an effort to solicit its
insurance services. The Defendant often called from telephone
numbers including, but not limited to, (661) 403-5448.
The Plaintiff’s telephone number ending in -6241 has been
registered on the National Do-Not-Call List since 2008.
Despite this, Defendant continued to call Plaintiff in an attempt
to solicit its services and in violation of the Do-Not-Call
provisions of the TCPA thus repeatedly violating Plaintiff's
privacy.
Insurance Line is an insurance telemarketing company.[BN]
Attorneys for the Plaintiff are:
Todd M. Friedman, Esq.
Meghan E. George, Esq.
Adrian R. Bacon, Esq.
LAW OFFICES OF TODD M. FRIEDMAN, P.C.
21550 Oxnard St., Suite 780
Woodland Hills, CA 91367
Telephone: 323 306-4234
Facsimile: 866 633-0228
E-mail: tfriedman@toddflaw.com
mgeorge@toddflaw.com
abacon@toddflaw.com
INTERNATIONAL PAPER: 4th Cir. Affirms M. Perkins' Suit Dismissal
----------------------------------------------------------------
The United States Court of Appeals, Fourth Circuit, issued an
Opinion affirming the District Court's Order granting Defendant's
Motion for Summary Judgment in the case captioned MATTHEW PERKINS,
Plaintiff-Appellant, v. INTERNATIONAL PAPER COMPANY,
Defendant-Appellee. No. 18-1507 (4th Cir.).
Perkins, an African American male, began working as a technician at
what is now IPC's Eastover paper mill. Perkins continued working
there until 2014, when he retired. Perkins alleges in his Amended
Complaint that, during his time at IPC, he experienced race-based
discrimination. Our review of the record indicates that Perkins'
evidence of this alleged discrimination falls into three
categories: (1) mistreatment in various ways compared to white
employees (2) improper denials of requests for promotions and (3)
racially offensive conduct and statements at work.
After discovery, IPC moved for summary judgment. The district court
adopted the magistrate judge's recommendation to grant IPC's motion
concluding there were no genuine issues of material fact as to any
of his claims.
All of Perkins' claims are based on Title VII. Title VII prohibits
discrimination against any individual with respect to his
compensation, terms, conditions, or privileges of employment,
because of such individual's race. This provision is sometimes
referred to as the anti-discrimination provision. In a separate
section, Title VII outlaws discrimination based an employee's
opposition to conduct made unlawful by Title VII or participation
in any Title VII investigation, proceeding or hearing. This
provision is sometimes referred to as the anti-retaliation"
provision. Perkins' claims for disparate treatment, hostile work
environment and constructive discharge fall under SEction 2000e-2.
His retaliation claim falls under Section 2000e-3.
On appeal, Perkins argues the district court erred in granting IPC
summary judgment on each of his claims.
With respect to his disparate treatment claim, Perkins argues the
district court did not even address this claim, but instead
improperly relied on the magistrate judge's decision on timeliness.
With respect to the hostile work environment claim, Perkins argues
he provided sufficient evidence of a severe or pervasive
environment.
With respect to his constructive discharge claim, Perkins appears
to argue that the same facts that establish a hostile work
environment establish a constructive discharge.
Last, regarding his retaliation claim, Perkins argues that, much
like his disparate treatment claim, the district court largely
ignored the claim and granted summary judgment with no legal
reasoning.
The Court begins with Perkins' disparate treatment claim. In an
attempt to prove this claim, Perkins said that from 2007 to 2013,
IPC inappropriately denied him several promotions, overtime hours,
additional educational benefits and a training opportunity. Perkins
also testified that in 2011, IPC gave him an inaccurate evaluation.
Perkins further said that he did not receive annual reviews, that
he did not have a fair opportunity to compete for manager positions
and that he experienced daily and consistent hostile treatment.
Perkins claims this evidence satisfies his burden for a disparate
treatment claim and the district court erred by effectively
ignoring the claim. It is true that the district court's order
contains no independent discussion on the disparate treatment
claim. However, it finds that Plaintiff's objections to the Report
did not overcome the Magistrate Judge's analysis which cites to the
facts and evidence in the record, and the relevant caselaw.
Regardless of the level of discussion in the district court's
order, the Court affirms the district court because, based on our
de novo review, the evidence offered by Perkins fails to create a
genuine issue of material fact.
The district court properly granted summary judgment on his claim
for disparate treatment.
The Court next turns to Perkins' race-based hostile work
environment claim. Perkins asserts this claim under 42 U.S.C.
Section 2000e-2, the anti-discrimination provision of Title VII. To
establish a prima facie Title VII claim for a hostile work
environment based on race, Perkins must demonstrate: (1) he
experienced unwelcome harassment (2) the harassment was based on
his race (3) the harassment was sufficiently severe or pervasive to
alter the conditions of employment and create an abusive
atmosphere; and (4) there is some basis for imposing liability on
the employer.
The critical issue for us on appeal is the severe and pervasive
element. To establish that race-based harassment was sufficiently
severe or pervasive under Title VII, Perkins must show that a
reasonable jury could find that the race-based harassment was so
severe or pervasive as to alter the conditions of Perkins'
employment and create an abusive or hostile atmosphere.
IPC does not dispute that a reasonable jury could find Perkins
subjectively perceived his environment to be abusive or hostile.
Our focus then on appeal is whether a reasonable jury could
conclude that an objective reasonable person would perceive
Perkins' work environment to be hostile or abusive.
When determining whether the harassing conduct was objectively
severe or pervasive, the Court must look at all the circumstances,
including the frequency of the discriminatory conduct; its
severity; whether it is physically threatening or humiliating, or a
mere offensive utterance; and whether it unreasonably interferes
with an employee's work performance.
The Court now turns back to the evidence offered by Perkins in
support of his hostile work environment claim. The Court will first
consider the evidence Perkins offered that he and other African
American employees were mistreated compared to white IPC employees
and unfairly denied promotions. The Court will then consider
evidence of racially offensive conduct and statements made to and
in the presence of other IPC employees that Perkins knew about
while at IPC. The Court will last consider racially offensive
statements made to other IPC employees that Perkins neither
witnessed nor was aware.
Regarding mistreatment compared to white employees, Perkins
testified IPC denied his request for retroactive application of the
new amount of education benefits when it approved the new amount
for current participants, including white employees. Perkins
testified that most of the employees at the bottom of his
department's list ranking technicians were African Americans and
females.
Perkins also testified the assignment of employees to the
twelve-hour shift on one portion of a machine and to the shorter
shift for a different job on that same machine was unfair to
African Americans. Last, Perkins testified he never saw white
employees questioned about overtime like he was. Other IPC
employees testified that African American employees were treated
less favorably than white employees in that the IPC workplace rules
and practices were enforced more stringently against African
American employees than white employees and that some white
employees did not talk to and otherwise shunned African American
employees. In addition, Perkins testified that he was passed over
for several promotion requests. He and other IPC employees also
testified more generally that white employees were promoted more
often than African American employees.
The handful of incidents Perkins described occurred between 2007
and 2013. Those incidents, while no doubt serious to Perkins, from
an objective perspective cannot reasonably be described as either
frequent, physically threatening or humiliating. Further, Perkins
does not allege the incidents interfered with his ability to
perform his job. And the evidence offered by Perkins' co-workers is
of the same character.
Thus, considering the evidence in the light most favorable to
Perkins, the Court agrees with the district court that this
evidence does not rise to the level of severity and pervasiveness
required by Supreme Court and Fourth Circuit precedent to
constitute a hostile workplace.
Next, looking at the evidence of racially offensive conduct and
statements of which Perkins was aware, Perkins' Amended Complaint
does not refer to these incidents. Likewise, they were not
mentioned by the magistrate judge or the district court and
received scant attention by the parties in their briefs. But this
evidence is plainly in the record and was addressed by the parties
at oral argument without any waiver or forfeiture objection. While
not required to do so, we feel it is appropriate to address this
alleged evidence here.
Perkins is clear that no one made racial slurs or racially
offensive statements to him. But while at IPC, Perkins learned of
two incidents of racially offensive conduct by white co-workers.
While this Court has held that the primary focus in the hostile
work environment analysis is on the plaintiff's experience,
evidence of how others were treated in the same workplace can be
relevant to a hostile work environment claim.
Based on the Court's precedent, the evidence of racially offensive
conduct that Perkins heard about second-hand should not be
disregarded simply because he did not witness it. Despite that,
this evidence does not create a genuine issue of material fact on
Perkins' hostile work environment claim because the statements are
remote in time relative to each other and to Perkins' decision to
leave IPC. Thus, insufficient to create a genuine issue of material
fact.
Perkins next alleges that his working conditions were so
intolerable that he was constructively discharged. Perkins
testified he left IPC because he had no ability to provide a
positive influence, was devalued and could not sleep at night
because of racism and prejudice. Perkins added that high blood
pressure and shoulder pain were additional reasons he left. But on
appeal, Perkins appears to argue the same evidence that supports
his hostile work environment claim also supports and creates a
genuine issue of material fact on his constructive discharge claim.
Either way, the Court disagrees.
A claim for constructive discharge has two elements. First, a
plaintiff must show that his working conditions became so
intolerable that a reasonable person in the employee's position
would have felt compelled to resign. Second, a plaintiff must
actually resign because of those conditions.
Here, the only issue is the intolerability requirement.
Intolerability' is not established by showing merely that a
reasonable person, confronted with the same choices as the
employee, would have viewed resignation as the wisest or best
decision, or even that the employee subjectively felt compelled to
resign.
Critically, difficult or unpleasant working conditions and denial
of management positions, without more, are not so intolerable as to
compel a reasonable person to resign.
Considering the record de novo and reviewing the evidence in the
light most favorable to Perkins, we find no error in the district
court's conclusion that the evidence offered by Perkins does not
create a genuine issue of material fact as to constructive
discharge. Proof of constructive discharge requires a greater
severity or pervasiveness of harassment than the minimum required
to prove a hostile working environment.
Thus, the district court did not err in granting IPC's motion for
summary judgment as to Perkins' constructive discharge claim.
Last, the Court turns to Perkins' retaliation claim. Perkins
alleges that IPC retaliated against him for engaging in actions
protected by Title VII. Perkins offered evidence that he raised a
litany of concerns about work-related issues at IPC. He further
testified that, as a result of expressing his concerns, IPC took
the following retaliatory actions against him: (1) denied him
annual reviews (2) denied him a fair opportunity to compete for
manager positions (3) caused him to suffer a worsening hostile work
environment (4) denied him overtime (5) denied him a machine
coordinator position; and (6) constructively discharged him.
Perkins contends the district court erred in granting summary
judgment to IPC on this claim arguing the district court provided
no legal reasoning on this issue. Like the disparate treatment
claim, the district court did not separately analyze Perkins'
retaliation claim. However, it granted summary judgment for the
reasons articulated in the magistrate judge's report, which
addressed retaliation.
Regardless of the extent of analysis below, based on a de novo
review, the Court finds Perkins did not create a genuine issue of
material fact on his retaliation claim.
Looking more closely at these elements, protected activities can
fall into two categories: participation and opposition. An employer
may not retaliate against an employee for participating in an
ongoing investigation or proceeding under Title VII, nor may the
employer take an adverse employment action against an employee for
opposing discrimination practices in the workplace.
To establish the necessary causation for a retaliation claim, the
employer must have taken the adverse employment action because the
plaintiff engaged in a protected activity. At the prima facie
stage, a plaintiff does not have to show that their protected
activities were but-for causes of the adverse action. However, he
still must make some showing of causation. For example, a plaintiff
may establish causation by showing that (1) the employer either
understood or should have understood the employee to be engaged in
protected activity and (2) the employer took adverse action against
the employee soon after becoming aware of such activity.
Turning to the evidence Perkins argues supports his claim, Perkins
testified about a lengthy list of alleged protected activities. But
quantity does not necessarily equal quality. As the district court
properly noted, three of those alleged protected activities
Perkins' exit interview, Ethics Helpline call and meetings with
mill management occurred after he stopped working at IPC and, thus,
were not related to any adverse actions towards him.
As to his remaining alleged material adverse actions, Perkins
cannot establish hostile work environment or constructive discharge
are material adverse actions because we have already concluded he
has not offered evidence that creates a genuine issue of material
fact on those issues. And as to Perkins' claim that he was denied
annual reviews, in addition to not offering sufficient evidence
that this constituted an adverse employment action, he likewise
failed to offer sufficient evidence that it was a materially
adverse action.
Thus, Perkins' retaliation claim should be dismissed.
A full-text copy of the Fourth Circuit's August 27, 2019 Opinion is
available at https://tinyurl.com/y332qyq8 from Leagle.com.
ARGUED: Shannon Marie Polvi, CROMER BABB PORTER & HICKS, LLC, 1418
Laurel St., Ste. A, Columbia, South Carolina, for Appellant.
Matthew J. Gilley -- mgilley@fordharrison.com -- FORD & HARRISON
LLP, Spartanburg, South Carolina, for Appellee.
ON BRIEF: Kristin S. Gray -- kgray@fordharrison.com -- FORD &
HARRISON LLP, Spartanburg, South Carolina, for Appellee.
JOS A BANK: Court Grants Summary Judgment Bid in Akinmeji Suit
--------------------------------------------------------------
In the case, OLUSOLA AKINMEJI, et al., Plaintiffs, v. JOS A. BANK
CLOTHIERS, INC., Defendant, Civil No. PJM 17-1349 (D. Md.), Judge
Peter J. Messitte of the U.S. District Court for the Distrct of
Maryland granted Jos. A. Bank Clothiers ("JAB")'s motion for
summary judgment as to the Plaintiffs' California Unfair
Competition Law claims.
The case is one more lawsuit against JAB for allegedly deceptive
promotional practices. To date, none of the preceding lawsuits has
been successful.
In the present case, Plaintiffs Akinmeji and Raychel Jackson, on
behalf of themselves and a putative nationwide class and
sub-classes, allege that JAB has violated several Maryland and
California unfair competition and consumer protection statutes.
They also assert a number of common law torts.
JAB is a clothing retailer chain that has made sales pitches to
consumers to the effect that, if they purchase one item at a
"regular" price, they will also receive one or more additional
items for "free." The Plaintiffs allege that JAB has
misrepresented and continues to misrepresent the nature and amount
of its price discounts by offering misleading dollar and percentage
discounts off its "regular" prices. These "free" apparel
promotions and discount offers are said to be false because the
so-called "regular" price is actually fabricated and inflated;
consequently, at best only a minimal percentage of consumers pay
JAB's "regular" prices for its apparel.
Essentially, the Plaintiffs contend that JAB is advertising normal
retail prices as temporary price reductions, which gives consumers
a false impression as to the value of JAB's products and the
bargains they believe they will receive if they purchase the
products. They allege they have suffered damages measured by the
difference between the temporary price reduction they paid (which
they believed was the normal retail price) and the value of the
suits actually received. They are now, however, at the point where
they must plead cognizable damages as a result of JAB's purported
false misrepresentations.
Akinmeji sued JAB on behalf of himself and a putative class of
Maryland residents who purchased apparel from JAB pursuant to its
advertising. Suit was originally filed in the Circuit Court for
Prince George's County, Maryland on Jan. 25, 2017. After its
registered agent received a copy of the Complaint, on May 16, 2017,
JAB timely removed the case to the Court on the basis of diversity
of citizenship and the Class Action Fairness Act of 2005. On June
27, 2017, Akinmeji amended his Complaint to add (a) Jackson as a
co-Plaintiff, (b) California statutory claims, (c) a putative
nationwide class of JAB consumers, and (d) a putative sub-class of
California residents who were JAB consumers.
After initially challenging, then conceding, that the Court could
exercise personal jurisdiction over it, JAB moved to dismiss the
Plaintiffs' Amended Complaint for failure to state a claim. At the
end of a hearing on JAB's Motion on July 17, 2018, the Court orally
dismissed all the Counts in the Plaintiffs' Amended Complaint,
except for three Counts alleging that JAB violated California's
Unfair Competition Law ("UCL").
In short, Akinmeji was dismissed from the case entirely and only
Jackson, the California resident, remained as the Plaintiff. The
Court then ordered Jackson to submit preliminary damages
calculations on behalf of herself and the putative California
sub-class. After Jackson outlined her preliminary damages
calculations by way of Initial Disclosures, JAB moved for summary
judgment on the remaining California statutory claims.
Jackson filed an Opposition, ECF No. 104, and JAB filed its Reply.
The Court then heard further oral argument on JAB's Motion.
Because the California UCL created a substantive right for
consumers to seek redress from the courts for unfair competitive
practices, Judge Messitte will apply the UCL's statute of
limitations, not Maryland's general statute of limitations. Since
Jackson allegedly bought her suits from JAB on Feb. 1, 2014 and
joined the case as a Plaintiff in the Amended Complaint filed on
June 27, 2017, well within the four-year statute of limitations
period of the UCL, her UCL claims are timely.
JAB next argues that Jackson has failed to put forth an appropriate
measure for calculating restitution, nor indeed, it says, has she
proffered any evidence to support her claim to restitution under
the UCL. Jackson counters that her proposed measure of restitution
has been accepted in other cases and that it creates a genuine
dispute of material fact, when set against JAB's proposed measure.
The Judge agrees with JAB. In the present case the proper measure
of restitution is the difference between the total price paid and
the value of goods received. The parties agree that Jackson
visited JAB's store in Stockton, California, paid $995, and
received four suits in exchange. Thus, the primary dispute
regarding restitution is how to determine the total value of the
four suits she received from JAB.
The Judge finds that Jackson has failed to propose a legally
cognizable measure of restitution in support of her UCL claims.
Jackson proposes three alternative methods of calculating
restitution relative to the price-value differential: (1)
rescission of the purchase price and complete restitution, (2)
restitution based on "the false transaction value promised by the
Defendant, i.e., a refund of the excess amount that plaintiff paid
as a result of the Defendant's deceptive practice," and (3)
restitution based on the Defendant's net profits as a result of the
allegedly deceptive advertisements. The Judge finds that none of
these proposed alternative measures to be appropriate for the
purposes of calculating restitution in the present case.
Based on the foregoing, Judge Messitte granted the Defendant JAB's
Motion for Summary Judgment. The Clerk is directed to close the
case.
A full-text copy of the Court's July 31, 2019 Memorandum Opinion is
available at https://is.gd/sVwnqR from Leagle.com.
Olusola Akinmeji & Raychel Jackson, On Behalf of Themselves and
Others Similarly Situated, Plaintiffs, represented by Beatrice
Oluwayemisi Yakubu -- byakubu@cuneolaw.com -- Cuneo Gilbert &
LaDuca, LLP, Charles J. LaDuca -- charles@cuneolaw.com -- Cuneo
Gilbert & LaDuca, LLP, pro hac vice, Charles D. Moore, Halunen and
Associates, pro hac vice, Christopher J. Moreland, Halunen Law, pro
hac vice, Daniel Cohen, Cuneo Gilbert & LaDuca, LLP & Melissa S.
Weiner, pro hac vice.
Jos. A. Bank Clothiers, Inc., Defendant, represented by Bruce L.
Marcus, Marcus Bonsib LLC, Joseph Anthony Compofelice, Jr. ,
MarcusBonsib LLC, Charles W. Steese --
csteese@armstrongteasdale.com -- Armstrong Teasdale LLP, pro hac
vice, Cindy N. Pham, Armstrong Teasdale LLP, pro hac vice & Eric M.
Walter -- ewalter@armstrongteasdale.com -- Armstrong Teasdale LLP,
pro hac vice.
JUSTICE ENERGY: Retired Coal Miners Hit Denied Insurance Claims
---------------------------------------------------------------
James E. Graham II, Dennis Adkins, Roger Wriston and David B. Polk,
on behalf of themselves and others similarly situated and United
Mine Workers of America International Union, Plaintiffs v. Justice
Energy Co. Inc., Keystone Service Industries, Inc., Bluestone Coal
Corporation, Double-Bonus Coal Co. and Southern Coal Corporation,
Defendants, Case No. 19-cv-00597 (S.D. Va. August 15, 2019), seeks
declaratory, injunctive and other relief enjoining Defendants from
unilaterally modifying or terminating group medical insurance plans
and group prescription insurance plans maintained for the benefit
of retired coal miners, their spouses, surviving spouses and
dependents and reimbursement of any health care expenses incurred
by the retirees as a result of breach of contract; and violation of
the Labor-Management Relations Act of 1947 and the Employee
Retirement Income Security Act.
Defendants are in the business of operating coal mining facilities
in West Virginia. Plaintiffs are retired coal miners who have a
collective bargaining agreement under which they are entitled to
medical and prescription benefits "for life." Since at least late
2017 through the present, Defendants have failed to pay undisputed
claims for both medical services and prescription drug costs in a
timely manner as required by their respective collective bargaining
agreements, notes the complaint.[BN]
Plaintiff is represented by:
Charles F. Donnelly, Esq.
UNITED MINE WORKERS OF AMERICA
1300 Kanawha Boulevard East
Charleston, WV 25301
Tel: (304) 346-0341
Fax: (304) 346-1186
Email: cdonnelly@umwa.org
- and -
Kevin F. Fagan, Esq.
UNITED MINE WORKERS OF AMERICA
18354 Quantico Gateway Drive, Suite 200
Triangle, VA 22172
Tel: (703) 291-2418
Fax: (703) 291-2448
Email: kfagan@umwa.org
- and -
Timothy J. Baker, Esq.
UNITED MINE WORKERS OF AMERICA
18354 Quantico Gateway Drive
Triangle, VA 22172
Tel: (703) 291-2418
Fax: (703) 291-2448
Email: tjbaker@umwa.org
JUUL LABS: Misrepresents Nicotine Content, Boyd Suit Claims
-----------------------------------------------------------
MINDY BOYD, individually and as guardian of her minor child, E.B.,
individually and on behalf of all others similarly situated,
Plaintiff v. JUUL LABS, INC., Defendant, Case No. 4:19-cv-0674
(W.D. Mo., Aug. 26, 2019) alleges that the Defendant failed to
provide accurate, true, and correct information concerning the
risks of using JUUL and appropriate, complete, and accurate
warnings concerning the potential adverse effects of nicotine use
and, in particular JUUL's patented nicotine salts and the chemical
makeup of JUULpods liquids.
According to the complaint, JUUL knew of the significant health
risks posed by nicotine use and, with that knowledge, developed an
e-cigarette that is more potent than any other. JUUL was also aware
that nicotine has greater adverse impact on adolescents, including
an increased risk of becoming addicted to nicotine. With that
knowledge, JUUL developed a marketing strategy that targeted
teenagers.
Consistent with JUUL's deceptive practices, studies have shown that
JUUL e-cigarettes contain higher levels of benzoic acid and
nicotine than JUUL represents. Specifically, rather than the 4%
benzoic acid solution disclosed in JUUL's patent paperwork, JUUL
products have been found to have a benzoic acid solution of 4.5%.
Likewise, independent studies have revealed that a single JUULpod
contains 6% nicotine or 60 mg/mL of nicotine per JUULpod. JUUL
represents that each JUULpod contains 5% or 50 mg/mL.
JUUL Labs, Inc. manufactures electronic cigarettes. The Company
offers products such as device kits, JUULpods, and accessories in
different flavors. JUUL Labs serves customers in the United States.
[BN]
The Plaintiff is represented by:
Thomas P. Cartmell, Esq.
Jonathan P. Kieffer, Esq.
Tyler W. Hudson, Esq.
WAGSTAFF & CARTMELL LLP
4740 Grand Avenue, Suite 300
Kansas City, MO 64112
Telephone: (816) 701-1100
Facsimile: (816) 531-2372
E-mail: tcartmell@wcllp.com
jpkieffer@wcllp.com
thudson@wcllp.com
- and -
Kirk J. Goza, Esq.
Brad Honnold, Esq.
GOZA & HONNOLD LLC
9500 Nall Ave., Suite 400
Overland Park, KS 66207
Telephone: (913) 451-3433
E-mail: kgoza@gohonlaw.com
bhonnold@gohonlaw.com
KANE FURNITURE: Refused to Honor Lifetime Guarantee, Grace Says
---------------------------------------------------------------
ROBERT GRACE, individually and on behalf of all those similarly
situated v. KANE FURNITURE CORPORATION, Case No. 19-CA-009014 (Fla.
Cir., Hillsborough Cty., Aug. 29, 2019), arises from the
Defendant's alleged deceptive and unfair business practices in
violation of Florida's Deceptive and Unfair Trade Practices Act.
The Defendant is a Florida corporation with 17 retail furniture
stores throughout the State of Florida, including three stores in
Hillsborough County.
The Plaintiff alleges that the Defendant, through a pattern and
practice of doing business, solicited consumers through the use of
a broad, statewide multi-million-dollar marketing plan based almost
entirely on an advertising campaign claiming a "FREE LIFETIME
GUARANTEE--QUALITY SO GOOD IT'S GUARANTEED FOR LIFE."
The Plaintiff contends that despite being given the opportunity to
inspect the deterioration of his furniture, the Defendant failed
and refused to honor its promise of a lifetime guarantee by either
repairing or refunding him the purchase price.[BN]
The Plaintiff is represented by:
J. Daniel Clark, Esq.
CLARK & MARTINO, P.A.
3407 W. Kennedy Boulevard
Tampa, FL 33609
Telephone: (813) 879-0700
Facsimile: (813) 879-5498
E-mail: dclark@clarkmartino.com
- and -
V. Stephen Cohen, Esq.
Pedro F. Bajo, Jr., Esq.
BAJO CUVA COHEN & TURKEL, P.A.
100 N. Tampa Street, Suite 1900
Tampa, FL 33602
Telephone: (813) 443-2199
Facsimile: (813) 443-2193
E-mail: scohen@bajocuva.com
pedro.bajo@bajocuva.com
- and -
Ricardo A. Roig, Esq.
RICARDO A. ROIG, P.L.
2803 Safe Harbor Dr.
Tampa, FL 33618
Telephone: (813) 964-7530
Facsimile: (813) 441-6889
E-mail: roiglaw@gmail.com
KINKISHARYO INT'L: Removes Loaiza et al Suit to C.D. California
---------------------------------------------------------------
Kinkisharyo International, L.L.C. removes case captioned as ANTHONY
LOAIZA, JOSE LANDAVERDE, individually, and on behalf of other
members of the general public similarly situated, the Plaintiff, v.
KINKISHARYO INTERNATIONAL LLC, an unknown business entity; and DOES
1 through 100, inclusive, the Defendant, Case No. 19STCV23921
(Filed July 10, 2019), from the Los Angeles Superior Court, to the
US District Court for the Central District of California on Sep. 4,
2019.
The Plaintiffs brought claims for unpaid overtime; unpaid meal
period premiums; unpaid rest period premiums; unpaid minimum wage;
final wages not timely paid; wages not timely paid during
employment; non-compliant wage statements; failure to keep
requisite payroll records; unreimbursed business expense; and
unfair competition in violation of Business and Professions Code
section.[BN]
Attorneys for the Defendant are:
Ronald J. Holland, Esq.
Philip Shecter, Esq.
Alice Kwak, Esq.
MCDERMOTT WILL & EMERY LLP
415 Mission St Suite 5600
San Francisco, CA 94105-2533
Telephone: 628 218 3800
Facsimile: 628 877 0107
E-mail: rjholland@mwe.com
pshecter@mwe.com
akwak@mwe.coms
L'OREAL USA: Carter Moves for Certification of Purchasers Class
---------------------------------------------------------------
The Plaintiffs in the lawsuit styled ANGELA CARTER, ELLA VALRIE,
and DORA BLACKMON, individually and on behalf of all others
similarly situated v. L'OREAL USA, INC., and SOFT SHEEN-CARSON,
LLC, Case No. 2:16-cv-00508-TFM-B (S.D. Ala.), move for
certification of a class defined as:
All resident citizens of the United States and its
territories, except those of the State of New York, who
purchased Soft Sheen-Carson Optimum Salon Haircare(R) brand
Amla Legend "No-Mix, No-Lye" Rejuvenating Ritual Hair
Relaxer for personal, family, or household use from
December 1, 2012, to the present day.
Excluded from the class are (i) any person who purchased
Soft Sheen-Carson Optimum Salon Haircare(R) brand Amla
Legend "No-Mix, No-Lye" Rejuvenating Ritual Hair Relaxer for
resale and not personal, family, or household use, (ii) any
person who signed a release of any Defendant in exchange for
consideration, (iii) any officers, directors, or employees,
or immediate family members of the officers, directors, or
employees of any Defendant or any entity in which any
Defendant has a controlling interest, (iv) any legal counsel
of employee of legal counsel for any Defendant, and (v) the
presiding Judges in this legal action, as well as the
Judges' staff and their immediate family members.
The Plaintiffs allege that the Defendants breached their legal
duties by misbranding their Optimum Salon Haircare(R) brand Amla
Legend "No-Mix, No-Lye" Rejuvenating Ritual Hair Relaxer.
Specifically, the Plaintiff alleges that the Defendants
misrepresented the Product (1) as containing "No-Lye" when its
packaging reflects Sodium Hydroxide (i.e., Lye) as a listed
ingredient, and (2) can "undo 2 years of [hair] damage in just 2
weeks", "rejuvenate" damaged hair and/or "reverse [hair] damage"
when it cannot and does not bestow such extraordinary benefits to
the foreseeable user.
The Plaintiffs seek damages and equitable remedies for themselves
and the putative class, which includes consumers, who purchased the
Defendants' Product, which the Defendants knowingly and/or
negligently misbranded in violation of the law.[CC]
The Plaintiffs are represented by:
W. Lewis Garrison, Jr., Esq.
William L. Bross, Esq.
Brandy Lee Robertson, Esq.
Honza J. Prchal, Esq.
HENINGER GARRISON DAVIS, LLC
2224 First Avenue North
Birmingham, AL 35203
Telephone: (205) 326-3336
Facsimile: (205) 380-8072
E-mail: wlgarrison@hgdlawfirm.com
william@ghdlawfirm.com
brandy@hgdlawfirm.com
honza@hgdlawfirm.com
- and -
K. Stephen Jackson, Esq.
Joseph L. "Josh" Tucker, Esq.
JACKSON & TUCKER, P.C.
2229 First Avenue North
Birmingham, AL 35203
Telephone: (205) 252-3535
Facsimile: (205) 252-3536
E-mail: steve@jacksonandtucker.com
josh@jacksonandtucker.com
LGE COMMUNITY: 11th Cir. Flips Dismissal of EPTA Suit
-----------------------------------------------------
The United States Court of Appeals, Eleventh Circuit, issued an
Opinion reversing the District Court's judgment granting
Defendant's Motion to Dismiss in the case captioned CAROL TIMS,
Individually, and on behalf of all others similarly situated,
Plaintiff-Appellant, v. LGE COMMUNITY CREDIT UNION,
Defendant-Appellee. No. 17-14968. (11th Cir.).
Tims sued LGE in district court for breach of contract, breach of
the implied covenant of good faith and fair dealing, and violation
of the Electronic Fund Transfer Act (EFTA). The district court
dismissed her claims under Federal Rule of Civil Procedure 12(b)(6)
after determining that the two parties' agreements unambiguously
permitted LGE to assess overdraft fees using the available balance
calculation method.
LGE filed a Rule 12(b)(6) motion to dismiss all claims, which the
district court granted. Using Georgia's canons of contract
construction, the district court determined that the agreements
unambiguously permitted LGE to assess overdraft fees using the
available balance calculation method. The court concluded that LGE
had neither breached the parties' contract nor the covenant of good
faith and fair dealing and that no EFTA violation had occurred.
Tims challenges the district court's dismissal of her claims
against LGE for (1) breach of contract (2) breach of the implied
covenant of good faith and fair dealing and (3) violation of
Regulation E of EFTA.
Tims Stated a Claim for Breach of Contract
To state a claim for breach of contract under Georgia law, Tims had
to plausibly allege that LGE owed her a contractual obligation,
then breached it, causing her damages. Tims alleged that LGE
promised to calculate her account balance and assess overdraft fees
in light of that balance by considering only the ledger balance,
then breached that promise by considering the available balance
instead.
Under Georgia law, courts interpret contracts in three steps:
first, the court determines whether the contract language is clear
and unambiguous. If the language is clear, the court applies its
plain meaning; if it is unclear, the court proceeds to step two. At
step two, the court attempts to resolve the ambiguity using
Georgia's canons of contract construction. If the ambiguity cannot
be resolved using the canons, then the court proceeds to step
three, where the parties' intent becomes a question of fact for the
jury.
A contract is ambiguous when it leaves the intent of the parties in
question, i.e., that intent is uncertain, unclear, or is open to
various interpretations. A contract is unambiguous when, after
examining the contract as a whole and affording its words their
plain meaning, the contract is capable of only one reasonable
interpretation.
The Plain Language of the Opt-In and Account Agreements Is
Ambiguous as to Which Account Balance Calculation Method LGE Uses
to Assess Overdraft Fees.
Both parties argue that the Opt-In and Account Agreements are
unambiguous, but they disagree about which account balance
calculation method the agreements unambiguously promised to use.
Each party contends that the agreements' plain language clearly
supports its own interpretation of LGE's balance calculation
method.
After careful review, the Court disagrees with both parties that
the agreements are unambiguous.
In relevant part, the Opt-In Agreement explained that an overdraft
occurs when you do not have enough money in your account to cover a
transaction, but we pay it anyway. Each party contends that this
language plainly supports its own interpretation of LGE's balance
calculation method.
Tims argues that the phrase enough money in your account
unambiguously referred to the ledger balance because the term
account is presented without limitation or modification, such as a
reference to available funds. LGE argues that enough unambiguously
referred to the available balance. LGE consults the dictionary
definition of the word enough occurring in such quantity, quality,
or scope as to satisfy fully the demands, wants, or needs of a
situation or of a proposed use or end then points out that enough
is synonymous with available. Because enough and available are
synonyms, LGE argues, a consumer would understand merely by reading
the word enough that LGE would take only a consumer's available
funds into account in calculating the account's balance.
The Court finds neither argument persuasive. The Opt-In Agreement
sheds no light on what enough money in an account means in the
context of determining when an overdraft has occurred.
Each party contends the language of this agreement, too, clearly
requires the use of its favored account balance calculation method
in charging overdraft fees. Tims argues that the phrase sufficient
funds, by itself, plainly refers to the ledger balance. She also
argues that even though the Funds Availability Disclosure said some
deposited funds will be considered unavailable to consumers for a
period of time, it did not say whether or how the funds'
unavailability relates to the financial institution's account
balance calculation method for overdraft purposes.
In an argument similar to the one it makes about the Opt-In
Agreement, LGE asserts that sufficient is synonymous with available
and so a consumer reading the word available and then the term
sufficient in adjacent sentences would understand the.
Neither argument persuades the Court. The Court cannot say the
Account Agreement unambiguously articulated the account balance
calculation method LGE uses for unsettled debit transactions.
Nothing in the Account Agreement explained how LGE determines
whether funds are sufficient.
In the absence of anything in the Account Agreement addressing the
account balance calculation method LGE used in its overdraft
service for unsettled transactions and given the ambiguity of the
terms sufficient funds and available, the Account Agreement failed
to clearly indicate which balance calculation method LGE was using
to determine when an unsettled debit transaction would result in an
assessment of overdraft fees.
Neither the Opt-In Agreement nor the Account Agreement clearly
articulated which balance calculation method LGE was using to
determine when unsettled transactions would trigger an overdraft.
The contracts are ambiguous.
The Agreements Remain Ambiguous After Considering Georgia's Canons
of Contract Construction
Having determined that the language of the Opt-In and Account
Agreements is susceptible to two different constructions, the Court
turns to the second step of contract interpretation under Georgia
law and attempt to resolve the ambiguity using Georgia's canons of
construction. Applying these canons, the district court determined
that any ambiguity in the contracts could be resolved.
The district court concluded that the use of the word available in
the Account Agreement plainly referred to the available balance
method for two reasons: first, based on the close proximity of the
words available and sufficient in the Payment Order subsection, and
second, because available must be interpreted consistently
throughout the Account Agreement, which uses the word in different
subsections.
The Court finds neither reason compelling.
First, the proximity of the word available to the word sufficient
in the Payment Order subsection of the Account Agreement does not
clearly communicate that LGE would use an available balance
calculation method when considering unsettled transactions in its
overdraft service. Thus, even read together, the terms available
and sufficient fail to clearly communicate how unsettled
transactions are treated in the balance calculation method LGE
employs in its overdraft services.
So the contract remains capable of two reasonable constructions.
Second, the Court disagrees that the Account Agreement was
necessarily referring to an available balance calculation method
for unsettled debit transactions based on the use of the word
available in a Funds Availability Disclosure provision that
addresses a completely different matter: the availability of
deposited funds. The Funds Availability Disclosure provision used
variations of the word available more than 20 times in nearly every
sentence. But available was never used in conjunction with the word
balance. And available was never defined to exclude unsettled debit
transactions for overdraft purposes.
Neither the Opt-In Agreement nor the Account Agreement read
separately, nor the two agreements read together, clearly
articulated LGE's balance calculation method for charging overdraft
fees. Applying the Georgia canons of construction does nothing to
clarify the contracts' ambiguity. Because the language remains
ambiguous after considering both the plain language of the
contracts and the Georgia canons of construction before us, the
parties' intent will become a question for the jury should neither
party be granted summary judgment.
The district court therefore erred in dismissing Tims's claim for
breach of contract.
Tims Stated a Claim Against LGE for Breach of the Covenant of Good
Faith and Fair Dealing.
Tims next argues that the district court erred in dismissing her
claim that LGE breached the implied covenant of good faith and fair
dealing under Georgia law. The Court agrees.
Under Georgia law, every contract imposes upon each party a duty of
good faith and fair dealing in its performance and enforcement.
That implied promise becomes a part of the provisions of the
contract, but the covenant cannot be breached apart from the
contract provisions that it modifies and therefore cannot provide
an independent basis for liability.
Given our conclusion on the breach of contract claim, Tims's
allegations sufficiently set forth facts showing a breach of an
actual term of the agreement. Tims alleged that LGE had a
contractual obligation to use the ledger balance calculation method
and breached that promise; therefore, Tims's claim for breach of
the implied covenant of good faith and fair dealing has been
properly pled. The district court erred in dismissing this claim.
Tims Stated a Claim Against LGE for Violating EFTA.
Tims alleges, and the Court thinks it plausible, that LGE violated
EFTA Regulation E.
Under EFTA, Congress charged the Federal Reserve Board and, later,
the Consumer Financial Protection Bureau (CFPB) with promulgating
regulations to carry out EFTA's purposes. One of EFTA's central
features is a requirement that financial institutions disclose the
terms and conditions of electronic fund transfers involving a
consumers account in accordance with the regulations of the
Regulation E is part of the CFPB's implementation of this
requirement. Regulation E requires financial institutions to give
consumers a notice describing the institution's overdraft service.
In its notice defining the term overdraft, LGE copied verbatim the
definition of that term provided in Model Form A-9: an overdraft
occurs when you do not have enough money in your account to cover a
transaction, but we pay it anyway. LGE seeks refuge in the safe
harbor because, it argues, it used an appropriate model form to
describe its overdraft service. The Court disagrees that LGE is
protected from liability by the safe harbor.
Tims does not allege LGE failed to do any of that. Instead, she
challenges the substance of the Opt-In Agreement, which she says
failed to give her enough information to give affirmative consent
to LGE's overdraft service. As its text makes clear, the
safe-harbor provision LGE invokes does not preclude liability when,
as in this case, the content of the Regulation E disclosure is at
issue. Because Tims challenges only LGE's failure to make an
adequate disclosure, and not its failure to make the disclosure "in
proper form," LGE cannot seek refuge under the safe harbor
provision. This is so whether or not the form accurately describes
the overdraft service. In this, our ruling is consistent with the
great weight of district court authority to have considered the
matter.
Tims's complaint challenged the substance of LGE's Opt-In
Agreement. Because the safe harbor does not protect financial
institutions from challenges to the substance of Opt-In Agreements,
Tims's EFTA claim survives a motion to dismiss, and the district
court erred in granting the motion.
The Court reverses the district court's order granting LGE's motion
to dismiss and remand for further proceedings consistent with this
opinion.
A full-text copy of the Eleventh Circuit's August 27, 2019 Opinion
is available at https://tinyurl.com/y433wofk from Leagle.com.
G. Franklin Lemond, Jr., Webb Klase & Lemond LLC, 1900the Exchange
SE Ste 480
Atlanta, GA, 30339-2049, for Plaintiff-Appellant.
Edward Adam Webb, Webb Klase & Lemond LLC, 1900the Exchange SE Ste
480
Atlanta, GA, 30339-2049, for Plaintiff-Appellant.
Kevin A. Maxim, The Maxim Law Firm, PC., 1718 Peachtree St., NW,
Suite 599
Atlanta, GA, 30309, for Defendant-Appellee.
Richard D. McCune -- rdm@mccunewright.com -- for
Plaintiff-Appellant.
Howard R. Rubin -- howard.rubin@katten.com -- for
Plaintiff-Appellant.
Taras Kihiczak, The Kick Law Firm, 815 Moraga Dr., Los Angeles, CA,
90049-1633, for Plaintiff-Appellant.
Brandon J. Wilson, Howard & Howard Attorneys PLLC, 450 West Fourth
Street, Royal Oak, MI 48067for Defendant-Appellee.
Stephen Paul Dunn, 450 West Fourth Street, Royal Oak, MI
48067-2557, for Defendant-Appellee.
LOWE'S HOME: $250K Saenz Labor Suit Settlement Has Final Approval
-----------------------------------------------------------------
In the case, JOSEPH SAENZ, on behalf of himself and others
similarly situated, Plaintiff, v. LOWE'S HOME CENTERS, LLC, a North
Carolina limited liability company; and DOES 1 through 20,
inclusive, Defendants, Case No. 2:17-cv-08758-ODW (PLA) (C.D.
Cal.), Judge Otis D. Wright, II of the U.S. District Court for the
Central District of California (i) granted the Plaintiff's Motion
for Final Approval of the Class Settlement, and (ii) granted in
part his Motion for Attorneys' Fees, Expenses, Incentive Award, and
Administrative Costs.
The case is a wage-and-hour class action against the Defendant.
Plaintiff Saenz, on behalf of himself and proposed class members,
alleges that the Defendant failed to provide accurate itemized
wages statements to non-exempt employees in violation of California
Labor Code section 226.
The parties reached a settlement on behalf of the class, and the
Court preliminarily approved the settlement and certified the class
of all non-exempt employees of Defendant Lowe's Home Centers, LLC
who received a wage statement at the time of their in-store
termination during the Class Period and who worked overtime in the
period covered by that wage statement. The Class Period is from
July 15, 2016, to Jan. 31, 2018. Additionally, the Court also
appointed the Plaintiff as the class representative and his counsel
as the class counsel.
Following the Court's Order, the Administrator, ILYM Group, Inc.,
provided notice to the potential class members as approved by the
Court. Specifically, on April 26, 2019, ILYM distributed the
Court-approved Notice Packet to the class list, which contained
2320 individuals. ILYM received 14 requests for exclusion, leaving
a total of 2306 class members.
The Defendant originally estimated that there were 2,323 members in
the proposed class. The finalized class list contained 2,320 class
members.
The Settlement Agreement provides a non-reversionary settlement of
$250,000 to be distributed pro rata. The Gross Settlement Amount
includes any statutory and civil penalties, damages, or other
relief arising from the Defendant's provision of allegedly
inaccurate wage statements; interest, attorneys' fees and costs,
the fees and costs of the Administrator, including any fees and
costs in connection with notice and the exclusion process, up to a
maximum of $30,000; settlement payments; and the incentive award.
After deducting the class counsel fees, litigation costs, incentive
award, administration fees, and PAGA allocation, the net settlement
amount is estimated at $111,157.60. ( This results in each class
member receiving $50.89, which consists of a pro rata share of the
net settlement proceeds of $48.20 plus a pro rata share of the PAGA
allocation in the amount of $2.69. The class members who opted out
will also receive their pro rata share of the PAGA allocation of
$2.69. Any check uncashed within 180 days of issuance will be
transmitted to the California Department of Industrial Relations
Unpaid Wage Fund in the name of the settlement class member.
The Plaintiff now moves for final approval of the class settlement.
He also seeks: attorneys' fees of one-third the common fund
($83,333.33), reimbursement of costs totaling $2476.11, settlement
administration costs of $23,032.96, and a service award of $5000.
The Defendant does not oppose, and no class members object.
Judge Wright previously found that the class merited certification,
and nothing has changed since the Court conditionally certified the
class. Accordingly, he maintains its approval.
Because he finds that the proposed settlement is fair, reasonable,
and adequate, the Judge will grant the Plaintiff's Motion for Final
Approval of the Class Action Settlement.
The Judge will award the Class Counsel $62,500, which is 25% of the
Gross Settlement Amount. He finds the Class Counsel's fee request
to be excessive, particularly given the risk of litigation, and
skill required and quality of representation factors. He will
award the Class Counsel $2476.11 in litigation and expenses and
ILYM's is awarded $23,032.96 in fees and costs.
The reasonableness of the expenses are confirmed by the fact that
there are no objectors and the Settlement Agreement allows for
reimbursement of expenses up to $25,000. ILYM's request for fees
and costs of is also reasonable.
Finally, the Judge will award Mr. Saenz $5,000 as an incentive
award. He finds that Mr. Saenz represented that he participated
in many conversations with Class Counsel regarding the case,
reviewed documents, and assisted in settlement negotiation.
For the foregoing reasons, Judge Otis granted the Plaintiff's
Motion for Final Approval of Class Settlement. He granted in part
the Plaintiff's Motion for Attorneys' Fees and Costs.
A full-text copy of the Court's July 31, 2019 Order is available at
https://is.gd/OfXaBT from Leagle.com.
Joseph Saenz, Individually and on behalf of all others similarly
situated, Plaintiff, represented by Samuel A. Wong, Aegis Law Firm
PC, Ali Sarah Carlsen, Aegis Law Firm PC, Jessica L. Campbell,
Aegis Law Firm PC, Kashif Haque -- khaque@aegislawfirm.com -- Aegis
Law Firm PC, Marta Manus -- mmanus@ckslaw.com -- Cohelan Khoury &
Singer & Samantha A. Smith -- ssmith@aegislawfirm.com -- Aegis Law
Firm PC.
Lowes Home Centers, LLC, a North Carolina limited liablity company,
Defendant, represented by Kirk A. Hornbeck, Jr. --
khornbeck@HuntonAK.com -- Hunton Andrews Kurth LLP, Phillip J.
Eskenazi -- peskenazi@HuntonAK.com -- Hunton Andrews Kurth LLP &
Megan Lorenzen, Hunton Andrews Kurth LLP.
MAPO TOFU: Seeks 2nd Circuit Review of Judgment in Xu Suit
----------------------------------------------------------
Defendants Kalian Feng, Mapo Tofu Food Corp. and Jun Zeng filed an
appeal from a District Court judgment issued on August 1, 2019, in
the lawsuit styled Xu v. Mapo Tofu Food Corp., et al., Case No.
17-cv-9087, in the U.S. District Court for the Southern District of
New York (New York City).
As previously reported in the Class Action Reporter, the lawsuit
was filed on November 20, 2017, seeking to recover unpaid minimum
wages, gratuity retentions, liquidated damages, prejudgment and
post-judgment interest, unpaid "spread-of-hours" premium for each
day the Plaintiff worked 10 or more hours, compensation for failure
to provide wage notice at the time of hiring and failure to provide
paystubs in violation of the New York Labor Laws. The Plaintiff
further seeks attorney's fees and costs under the Fair Labor
Standards Act.
The appellate case is captioned as Xu v. Mapo Tofu Food Corp., et
al., Case No. 19-2741, in the United States Court of Appeals for
the Second Circuit.[BN]
Plaintiff-Appellee Yaoxing Xu, Individually and on behalf of all
other employees similarly situated, is represented by:
Keli Liu, Esq.
HANG AND ASSOCIATES, PLLC
136-20 38th Avenue
Flushing, NY 11354
Telephone: (718) 353-8588
E-mail: kliu@hanglaw.com
Defendants-Appellants Mapo Tofu Food Corp., DBA Mapo Tofu, Jun Zeng
and Kalian Feng are represented by:
Kevin K. Tung, Esq.
KEVIN KERVENG TUNG, P.C.
136-20 38th Avenue
Flushing, NY 11354
Telephone: (718) 939-4633
E-mail: ktung@kktlawfirm.com
MERRILL LYNCH: Court Denies Securities Suit Dismissal
-----------------------------------------------------
The United States District Court, D. Maine, issued an Order denying
Defendant Merrill Lynch's Motion to Dismiss in the case captioned
THOMAS BALDWIN, Individually and On Behalf of All Others Similarly
Situated, Plaintiff, v. MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED, Defendant. No. 2:19-cv-00026-JDL. (D. Maine).
Merrill Lynch seeks the dismissal of Baldwin's complaint under Fed.
R. Civ. P. 12(b)(6).
Thomas Baldwin alleges that Merrill Lynch, Pierce, Fenner & Smith
Incorporated (Merrill Lynch) misrepresented the tax consequences of
investing money into a 529 college savings plan that it manages on
behalf of the Finance Authority of Maine. Baldwin brings this class
action individually and on behalf of all persons and entities who
enrolled in the Maine program through Merrill Lynch's website and
were then required to pay New York state income tax on the income
associated with their accounts, but who expected to receive the
same tax advantages as participants in the equivalent New York
program. Baldwin asserts claims under the Maine Unfair Trade
Practices Act (Maine UTPA) and for negligent misrepresentation.
Merrill Lynch argues that the Securities Litigation Uniform
Standards Act (SLUSA) requires any class action alleging
misrepresentation in connection with the purchase or sale of
covered securities to be brought under federal law, which Baldwin
has not done.
To withstand Merrill Lynch's 12(b)(6) motion to dismiss, Baldwin's
complaint must contain sufficient factual matter, accepted as true,
to state a claim to relief that is plausible on its face. Merely
reciting elements of a claim will not do, nor will alleging facts
that are too meager, vague, or conclusory to remove the possibility
of relief from the realm of conjecture. The question is whether,
after isolating and ignoring legal labels and conclusions and
drawing all reasonable inferences in the pleader's favor, the
complaint's well-pled facts plausibly narrate a claim for relief.
Merrill Lynch argues that Baldwin's complaint must be dismissed
because the SLUSA requires that any class action alleging
misrepresentation in connection with the purchase or sale of
covered securities be brought under federal law, and Baldwin's
complaint asserts only state law claims.
Congress enacted the SLUSA to prevent plaintiffs from diverting
securities class actions from federal courts to state courts to
circumvent the heightened pleading requirements imposed on federal
securities-fraud suits.
The SLUSA reads, in relevant part: "No covered class action based
upon the statutory or common law of any State or subdivision
thereof may be maintained in any State or Federal court by any
private party alleging (A) a misrepresentation or omission of a
material fact in connection with the purchase or sale of a covered
security or (B) that the defendant used or employed any
manipulative or deceptive device or contrivance in connection with
the purchase or sale of a covered security."
Baldwin argues that the SLUSA does not require dismissal of the
complaint because the misrepresentations it alleges were not made
in connection with the purchase of covered securities, but were
instead made in connection with his and the class members'
decisions to invest in the Maine 529 Program, which Merrill Lynch
concedes is not itself a covered security.
Baldwin contends that even if most of the funds invested by him and
other class members into the Maine 529 Program were ultimately used
to purchase covered securities, those purchases were made by
Merrill Lynch, and not by the investors in the Maine 529 Program.
Therefore, Merrill Lynch's fraudulent misrepresentations or
omissions were not made in connection with a purchase or sale of a
covered security' because they were not material to a decision by
one or more individuals other than the fraudster to buy or to sell
a covered security.
When courts are confronted with plaintiffs who allege that a
misrepresentation has induced them to purchase uncovered
securities, the SLUSA precludes the claim only if the circumstances
of the purchase evince an intent to take an ownership interest in
covered securities. To determine whether the plaintiffs evinced an
intent to take an ownership interest in covered securities, the
inquiry focuses on what the fund represents its primary purpose to
be in soliciting investors and whether covered securities
predominate in the promised mix of investments. The court should
also look at the nature, subject, and scope of the alleged
misrepresentation.
The Court therefore first examine the primary purpose of the Maine
529 Program, including the mix of the types of investments it
offers, and then assess the nature of Merrill Lynch's alleged
misrepresentation.
The Maine 529 Program's Primary Purpose and Mix of Investments
Baldwin's complaint is silent both as to what the Maine 529 Program
represents its primary purpose to be and as to the makeup of its
investments between covered and non-covered securities. The 2012
Maine 529 NextGen Program Description, however, which Merrill Lynch
has attached to its motion to dismiss, states that Section 529
Qualified Tuition Programs are intended to be used only to save for
qualified higher education expenses. Indeed, Merrill Lynch argues
that the 529 Program is primarily a vehicle to obtain ownership of
underlying covered securities because with two exceptions, all of
the investments in the Maine 529 Program's portfolios are covered
securities.However, taken together, the complaint and the
information cited by Merrill Lynch fail to establish that the
primary purpose of the Maine 529 Program is to invest in covered
securities.
The Nature of the Misrepresentation
In addition to determining what the fund represents its primary
purpose to be and determining whether covered securities
predominate the mix of investments, an inquiring court should also
look at the nature, subject, and scope of the alleged
misrepresentation.
Here, the link between the alleged misrepresentations the tax
advantages for New York taxpayers in investing in the Maine 529
Program and covered securities is similarly fragile. As previously
noted, the complaint states that investments in the New York 529
Program grow deferred from federal and state income taxes, and that
no federal or state taxes are due on money withdrawn from New York
529 Program plans used to pay for qualified education expenses. The
complaint accuses Merrill Lynch of "misleadingly and deceptively
market[ing] its Maine 529 Program as providing the same benefits to
New York State income tax payers as those enrolled in the New York
529 Program.
Thus, the essence of Baldwin's claim is only indirectly tied to the
Maine 529 Program's function of serving as a means of investing in
covered versus uncovered securities to pay for educational
expenses. Indeed, the complaint alleges that the Maine 529
Program's tax advantages the subject of the alleged
misrepresentations are not connected to whether funds are invested
in covered or uncovered securities. Thus, what matters instead is
the investment of money in the 529 Program itself.
Because the complaint's claims do not rest on alleged
misrepresentations about the quality or existence of the covered
securities held in the Maine 529 Program portfolios, the
potentially relevant covered securities are too attenuated from the
alleged misrepresentations to come within the strictures of SLUSA.
Merrill Lynch has failed to show based on the allegations of the
complaint and the publicly-sourced information it cites that the
Maine 529 Program represents that its primary purpose is to invest
in covered securities, or that the alleged misrepresentation
regarding the tax advantages of the program alleged by the
complaint relates to the nature of the securities Baldwin or others
would invest in by opening an account.
A full-text copy of the District Court's August 27, 2019 Order is
available at https://tinyurl.com/y5btfexr from Leagle.com.
THOMAS BALDWIN, Individually and On Behalf of All Others Similarly
Situated, Plaintiff, represented by BENJAMIN N. DONAHUE --
bdonahue@hww.law -- HALLETT WHIPPLE WEYRENS, JONATHAN STERN --
jstern@rosenlegal.com -- THE ROSEN LAW FIRM P.A., pro hac vice &
DAVID A. WEYRENS -- dweyrens@hww.law -- HALLETT WHIPPLE WEYRENS.
MERRILL LYNCH PIERCE FENNER & SMITH INCORPORATED, Defendant,
represented by JEFF GOLDMAN -- jeff.goldman@morganlewis.com --
MORGAN, LEWIS & BROCKIUS LLP, MATTHEW C. MCDONOUGH --
matthew.mcdonough@morganlewis.com -- MORGAN, LEWIS & BROCKIUS LLP,
pro hac vice & S. ELAINE MCCHESNEY --
elaine.mcchesney@morganlewis.com -- MORGAN, LEWIS & BOCKIUS, LLP,
pro hac vice.
METAL GREEN: Liu Seeks Unpaid Wages & Overtime
----------------------------------------------
BO LIU, on behalf of himself and others similarly situated, the
Plaintiffs, v. METAL GREEN RECYCLING INDUSTRIES INC. and "JOHN
DOE", the Defendants, Case No. 2:19-cv-17625 (D.N.J., Sept. 4,
2019), seeks unpaid wages from Defendants for the work he
performed, and for which he was not compensated in accordance with
the parties' agreement; unpaid wages from Defendants for overtime
work for which he did not receive overtime premium pay; and
liquidated damages pursuant to the Fair Labor Standards Act and New
Jersey Wage and Hour Law.
The Plaintiff was employed at Metal Green, from on or about April
17, 2017 until on or about May 14, 2018. Liu's job involved
assisting with the review and sorting of piles of recycling
materials.
Metal Green is a metal-recycling business corporation which
conducts business in the State of New Jersey.[BN]
Attorney for the Plaintiffs are:
Heng Wang, Esq.
WANG, GAO & ASSOCIATES, P.C.
36 Bridge Street
Metuchen, NJ 08840
Telephone: (732) 767-3020
Facsimile: (732) 343-6880
MIAMI-DADE COUNTY, FL: CFC Seeks to Certify ICE Detainees Class
---------------------------------------------------------------
The Plaintiffs in the lawsuit entitled C.F.C., individually and on
behalf of those similarly situated; S.C.C., individually and on
behalf of those similarly situated; WECOUNT!, INC., a Florida not
for profit corporation; FLORIDA IMMIGRANT COALITION, INC., a
Florida not for profit corporation v. MIAMI-DADE COUNTY, FLORIDA,
Case No. 1:18-cv-22956-KMW (S.D. Fla.), ask the Court to certify an
"ICE Detainer Class" defined as:
all persons who, since January 26, 2017, (1) have been or
are detained in the custody of MDCR, (2) were or are subject
to an ICE Detainer not supported by a judicial warrant, (3)
were, are, or will be entitled to be released from MDCR
custody under applicable federal, state, or local law, and
(4) due to MDCR's ICE Detainer policy and practice were not,
are not, or will not be released, but instead were, are, or
will be re-arrested and held in MDCR custody after being
eligible for release from MDCR custody. Class members seek
prospective injunctive and declaratory relief, as well as
incidental damages under Fla. Stat. Ann. Section 961.06 or,
alternatively, Fla. Stat. Ann. Section 760.11.
This case primarily seeks declaratory relief and injunctive relief,
with statutory damages sought as an incident to the declaratory and
injunctive relief, relating to Miami-Dade County's standard policy
and practice of voluntarily complying with U.S. Immigration and
Customs Enforcement ("ICE") immigration detainers ("ICE
Detainers"), and, therefore, presents a perfect vehicle for
class-wide adjudication under Rule 23(b)(2) of the Federal Rules of
Civil Procedure, the Plaintiffs contend.
The Plaintiffs also ask the Court to appoint them as class
representatives and to appoint their current counsel as class
counsel.[CC]
The Plaintiffs are represented by:
Edward Soto, Esq.
Pravin R. Patel, Esq.
Corey D. Berman, Esq.
Nicole Comparato, Esq.
WEIL, GOTSHAL & MANGES LLP
1395 Brickell Avenue, Suite 1200
Miami, FL 33131
Telephone: (305) 577-3100
E-mail: edward.soto@weil.com
pravin.patel@weil.com
Corey.berman@weil.com
nicole.comparato@weil.com
- and -
Alana Greer, Esq.
Oscar Londono, Esq.
COMMUNITY JUSTICE PROJECT, INC.
3000 Biscayne Blvd. Suite 106
Miami, FL 33137
Telephone: (305) 907-7697
E-mail: alana@communityjusticeproject.com
oscar@communityjusticeproject.com
- and -
Rebecca Sharpless, Esq.
IMMIGRATION CLINIC - UNIVERSITY OF MIAMI SCHOOL OF LAW
1311 Miller Drive, Suite E-273
Coral Gables, FL 33146
Telephone: (305) 284-3576
E-mail: rsharpless@law.miami.edu
MIDWEST RECEIVABLE: Ct. Stays Rodz Class Certification Proceedings
------------------------------------------------------------------
The United States District Court for the Eastern District of
Wisconsin issued an Order granting Plaintiffs' Motion to Stay in
the case captioned PAULA RODZ, Plaintiff, v. MIDWEST RECEIVABLE
SOLUTIONS, LLC, Defendant.
In this motion she moved to certify the class described in the
complaint but also moved the court to stay further proceedings on
that motion.
The plaintiff filed a class action complaint.
In Damasco v. Clearwire Corp., 662 F.3d 891, 896 (7th Cir. 2011),
the court suggested that class-action plaintiffs move to certify
the class at the same time that they file their complaint. The
pendency of that motion protects a putative class from attempts to
buy off the named plaintiffs. However, because parties are
generally unprepared to proceed with a motion for class
certification at the beginning of a case, the Damasco court
suggested that the parties ask the district court to delay its
ruling to provide time for additional discovery or investigation.
The plaintiff's motion to stay further proceedings on the motion
for class certification is granted.
A full-text copy of the District Court's August 27, 2019 Order is
available at https://tinyurl.com/yxp9q4ra from Leagle.com.
Paula Rodz, Plaintiff, represented by Ben J. Slatky --
bslatky@ademilaw.com -- Ademi & O'Reilly LLP, Jesse Fruchter --
jfruchter@ademilaw.com -- Ademi & O'Reilly LLP, John D. Blythin --
jblythin@ademilaw.com -- Ademi & O'Reilly LLP & Mark A. Eldridge --
meldridge@ademilaw.com -- Ademi & O'Reilly LLP.
MONOTYPE IMAGING: Wheby Says Merger Docs Have Misleading Info
-------------------------------------------------------------
The case, EARL M. WHEBY, JR., Individually and On Behalf of All
Others Similarly Situated, the Plaintiff, vs. MONOTYPE IMAGING
HOLDINGS INC., EILEEN A. CAMPBELL, GAY W. GADDIS, ROGER J. HEINEN
JR., SCOTT LANDERS, PAMELA F. LENEHAN, PETER J. SIMONE, TIMOTHY B.
YEATON, and DENISE F. WARREN, the Defendants, Case No.
1:19-cv-01645-UNA (D. Del., Sept. 3, 2019), stems from a proposed
transaction announced on July 26, 2019, pursuant to which Monotype
Imaging Holdings Inc. will be acquired by HGGC, LLC, Marvel Parent,
LLC and Marvel Merger Sub, Inc.
On July 25, 2019, Monotype's Board of Directors caused the Company
to enter into an agreement and plan of merger with Marvel. Pursuant
to the terms of the Merger Agreement, Monotype's stockholders will
receive $19.85 in cash for each share of Monotype common stock they
own.
On August 26, 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, the lawsuit says.
First, the Proxy Statement omits material information regarding the
Company's financial projections. The Proxy Statement fails to
disclose: (i) all line items used to calculate EBITDA; (ii) all
line items used to calculate unlevered free cash flow; and (iii) a
reconciliation of all non-GAAP to GAAP metrics. The disclosure of
projected financial information is material because it provides
stockholders with a basis to project the future financial
performance of a company, and allows stockholders to better
understand the financial analyses performed by the company's
financial advisor in support of its fairness opinion.
Second, the Proxy Statement omits material information regarding
the analyses performed by the Company's financial advisor in
connection with the Proposed Transaction, J.P. Morgan. With respect
to JPM's Discounted Cash Flow Analysis, the Proxy Statement fails
to disclose: (i) all line items used to calculate unlevered free
cash flow; (ii) the range of terminal values for the Company; (iii)
the individual inputs and assumptions underlying the range of
discount rates from 8.25% to 10.25% and the terminal growth rates
ranging from 2.5% to 3.5%; and (iv) the Company's fully diluted
shares outstanding, the lawsuit says.
Monotype is a leading global provider of design assets, technology,
and expertise for creative minds and content creators across the
globe. The Company supports people from global enterprise
organizations to agencies to individual designers by providing them
solutions that drive brand expression, technology that cultivates
meaningful engagement with customers, and expertise that drives
better design and improved marketing outcomes.[BN]
Attorneys for the Plaintiff are:
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
- and -
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
NAVY FEDERAL CREDIT: Ybanez Hits Missed Breaks, Seeks Final Pay
----------------------------------------------------------------
Daniel Ybanez, individually, and on behalf of other members of the
general public similarly situated, Plaintiff, v. Navy Federal
Credit Union, Defendants, Case No. 37-2019-00043142, (Cal. Super.,
August 16, 2019), seeks monetary damages and restitution,
penalties/premium pay for missed meal and rest periods, restitution
and restoration of sums owed and property unlawfully withheld,
reimbursement of business-related expenses, payment of final wages
upon termination, statutory penalties, declaratory and injunctive
relief, interest, attorneys' fees and costs under California labor
code and applicable Industrial Welfare Commission Orders.
Defendants hired Plaintiff and classified him as non-exempt
employee and failed to compensate them for all hours worked, missed
meal periods and/or rest breaks. [BN]
Plaintiff is represented by:
Douglas Han, Esq.
Shunt Tatavos-Gharajeh, Esq.
Daniel J. Park, Esq.
JUSTICE LAW CORPORATION
411 North Central Avenue, Suite 500
Glendale, CA 91203
Tel: (818) 230-7502
Fax: (818) 230-7259
NEW JERSEY: Court Denies Bid for Show Cause Order in Eagle Suit
---------------------------------------------------------------
In the case, EAGLE SYSTEMS, INC., on behalf of itself and all
others similarly situated, Plaintiff, v. ROBERT ASARO-ANGELO, in
his official capacity, Defendant, Civil Action No. 18-11445 (MAS)
(DEA) (D. N.J.), Judge Michael A. Shipp of the U.S. District Court
for the District of New Jersey denied the Plaintiff's Motion for an
Order to Show Cause ("OTSC").
The Plaintiff was audited by the Department of Labor and Workforce
Development of the State of New Jersey ("NJDOL"), and the NJDOL
determined that some, but not all, of its drivers were "employees"
pursuant to New Jersey's ABC Test2 and the Plaintiff owed over $2
million in taxes and penalties. On Oct. 26, 2011, the Plaintiff
appealed the NJDOL's assessments and penalties, and the appeal was
brought before the New Jersey Office of Administrative Law.
On Aug. 13, 2015, the NJDOL moved for summary disposition of the
OAL Proceeding. In its brief, the NJDOL argued that a certain
provision of the New Jersey Administrative Code was "invalid and
therefore unenforceable." The NJDOL subsequently issued proposed
regulations eliminating that provision, and those regulations were
adopted on Sept. 17, 2018.
The Plaintiff initiated the matter on July 8, 2018, and states that
the instant matter was filed in anticipation of the need to stay
the OAL Proceeding. It brings seven substantive counts against the
Defendant and in the eighth count seeks declaratory relief pursuant
to the Declaratory Judgment Act ("DJA"). The Plaintiff seeks a
declaration that the Federal Aviation Authorization Administration
Act of 1994 ("FAAAA"), preempts New Jersey's ABC Test.
On Dec. 5, 2018, Eagle Systems filed the instant OTSC. It seeks an
OTSC (1) enjoining and restraining the hearing of the [OAL
Proceeding], and (2) enjoining the NJDOL from (i) applying the ABC
Test in classifying Eagle's and the Class Members' Owner-Operators
as independent contractors; (ii) summarily classifying Eagle's and
the Class Members' Owner-Operator independent contractors as
employees; (iii) performing naked tax assessments on Eagle and the
Class Members; (iv) unlawfully assessing unemployment taxes against
Eagle and the Class Members for independent contractor
Owner-Operators; and (v) abating the contributions, interest and
penalties assessed by the NJDOL against Eagle and the Class
Members.
The Plaintiff states that a stay of the OAL Proceeding is necessary
until the issues raised in the Complaint are adjudicated because
the OAL Proceeding is predicated on egregiously ultra vires and
unlawful tax assessments made by the NJDOL against Eagle which are
preempted by operation of federal law. On Jan. 14, 2019, the
Defendant opposed the Plaintiff's Motion, and on Feb. 14, 2019, the
Plaintiff replied.
The Plaintiff argues that the legal standard for injunctive relief
is met because all four factors are satisfied. The Defendant
opposes the Court's grant of injunctive relief, arguing that none
of the factors are met. Judge Shipp finds that the Plaintiff has
not met its burden of establishing the likelihood of success on its
primary claim, and the issue that is at the center of the instant
matter, whether the FAAAA preempts the ABC Test.
The Plaintiff cites legal authority regarding tax assessments
levied by the Commissioner of the Internal Revenue Service and the
tax authority in the Virgin Islands. Conspicuously absent is any
authority supporting the Plaintiff's ability to bring its state-law
based naked tax assessment claims in a federal district court. As
discussed, the Judge holds that the TIA appears to bar such claims
from being brought in the Court. Even if the TIA did not operate
as a statutory bar, the principles of comity and restraint
expounded upon in Fair Assessment in Real Estate Association and
Great Lakes Dredge & Dock Co. v. Huffman, would prevent the Court
from granting the Plaintiff the relief it seeks. The Judge,
accordingly, finds that the Plaintiff has not established a
likelihood of success on the merits of its naked tax assessment
claims.
Finally, the Judge finds that the Plaintiff has failed to establish
the likelihood of success on its Contracts Clause Claims. In order
to prove a violation of this constitutional provision, a plaintiff
must demonstrate that a 'change in state law' has operated as a
substantial impairment of a contractual relationship. For the same
reasons the Plaintiff likely cannot establish that the NDOL engaged
in rule-making that violated the NJAPA, the Judge finds that the
Plaintiff likely cannot establish that the NJDOL's conduct during
the course of the audits or during the OAL Proceeding amounts to a
change in state law.
In light of this, Judge Shipp finds that the Plaintiff has failed
to establish likelihood of success on the merits of its claims.
Because this factor is essential, he does not reach the other
factors that must be satisfied to grant injunctive relief. He,
accordingly, denied the Plaintiff's Motion for an Order to Show
Cause. An order consistent with his Memorandum Opinion will be
entered.
A full-text copy of the Court's July 31, 2019 Order is available at
https://is.gd/4jBANM from Leagle.com.
NEW JERSEY MOTOR TRUCK ASSOCIATION, Movant, represented by RYAN
TODD WARDEN -- ryan.warden@ogletree.com -- OGLETREE, DEAKINS, NASH,
SMOAK & STEWART, P.C.
INTERNATIONAL BROTHERHOOD OF TEAMSTERS, Movant, represented by
DAVID TYKULSKER, TYKULSKER & ASSOCIATES.
EAGLE SYSTEMS, INC., on behalf of itself and all others similarly
situated, Plaintiff, represented by MARK A. SALOMAN --
msaloman@fordharrison.com -- FORDHARRISON LLP, SALVADOR PEDRO SIMAO
-- ssimao@fordharrison.com -- FORD & HARRISON, DAVID S. KIM --
dkim@fordharrison.com -- FORD & HARRISON LLP & JEFFREY ALAN SHOOMAN
-- jshooman@fordharrison.com -- FORD HARRISON LLP.
ROBERT ASARO-ANGELO, in his official capacity as THE COMMISSIONER
OF THE DEPARTMENT OF LABOR AND WORKFORCE DEVELOPMENT OF THE STATE
OF NEW JERSEY, Defendant, represented by RIMMA RAZHBA, OFFICE OF
THE ATTORNEY GENERAL.
Intermodal Association of North America, Interested Party,
represented by KEVIN M. CAPUZZI -- kcapuzzi@beneschlaw.com --
BENESCH FRIEDLANDER COPLAN & ARONOFF LLP.
NEW JERSEY: Court Dismisses Daniels Job Discrimination Suit v. DOC
------------------------------------------------------------------
Judge Brian R. Martinotti of the U.S. District Cour for the
District of New Jersey granted the Defendants' Motion to Dismiss
the case, BENJAMIN DANIELS, Plaintiff, v. STATE OF NEW JERSEY
DEPARTMENT OF CORRECTIONS, et al., Defendants, Case No.
3:18-cv-15375-BRM-DEA (D. N.J.).
The matter arises out of the alleged racial discrimination and
retaliation Daniels incurred working for the DOC. Daniels is a
Lieutenant with the DOC currently assigned to the Central Reception
and Assignment Facility ("CRAF"), which is responsible for
processing inmates in the DOC prison system and employs 300 staff
members. At all relevant times, Daniels' direct supervisors were
Major D'Amico, Major Beatty, Administrator Robert Buechele,
Administrator Robert Chetirkin, associate Administrator Degner, and
Assistant Superintendent Lisa Schofield.
The facts as to Daniels's case fall within three categories: (1)
allegations related to his June 16, 2017 Equal Employment
Opportunity Commission ("EEOC") right-to-sue letter, (2)
allegations related to his Aug. 2, 2018 EEOC right-to-sue letter;
and (3) assertions regarding his Aug. 31, 2018, 10-day suspension.
Daniels also seeks to certify a class because he has testified as a
witness for various minority employees who he claims have also been
the victims of discrimination and retaliation at the hands of the
Defendants. For example, he testified as a witness in Sergeant
Jackson's disciplinary hearing on Sept. 19, 2016, and in support of
his Equal Employment Division ("EED") complaint.
On Oct. 29, 2018, Daniels filed a Complaint alleging: (1) race
discrimination, disparate impact, and retaliation in violation of
Title VII of the Civil Rights Act of 1964 ("Title VII"), and the
New Jersey Law Against Discrimination ("NJLAD"); (2) retaliation,
in violation of 42 U.S.C. Section 1981; and (3) retaliation in
violation of the Conscientious Employee Protection Action ("CEPA").
On Dec. 11, 2018, Defendants filed a Motion to Dismiss on the basis
that all claims relating to the June 16, 2017 right-to-sue letter
are barred by the statute of limitations and all Title VII claims
relating to the 10-day suspension and retaliation for filing the
March 26, 2018 EEOC complaint should be dismissed for failure to
exhaust administrative remedies. Daniels opposes the Motion.
Judge Martinotti finds that Daniels received his first right-to-sue
letter on June 16, 2017, and the action was filed on Oct. 29, 2018,
well beyond the 90-day period. Therefore, all claims relating to
the June 16, 2017 right-to-sue letter are barred by the statue of
limitations. Accordingly, Defendants' Motion to Dismiss as to
these issue is granted.
Next, the finds that the Complaint does not provide any indication
that Daniels filed an EEOC complaint as to his 10-day suspension or
retaliation for filing his March 26, 2018 EEOC complaint. The
Complaint also fails to allege he received a right-to-sue letter as
to either of those claims. In fact, there is no indication that
Daniels filed any EEOC complaints after his March 26, 2016 EEOC
complaint. Clearly, Daniels March 26, 2018 EEOC complaint, which
he contends gave rise to the retaliation, could not have been
incorporate in that filing. Also, his suspension, occurring after
the issuance of the August 2, 2018 right-to-sue letter could not
have fallen within the scope of that March 26, 2018 EEOC charge.
Consequently, both Title VII claims must be dismissed for failure
to exhaust administrative remedies, since Daniels did not put the
EEOC on notice of his claims and afford them the opportunity to
settle his disputes. Accordingly, the Defendants Motion to Dismiss
as to these issues is granted.
The Defendants argue that Daniels' request for class certification
should be denied because he fails to meet Federal Rule of Civil
Procedure 23's requirements. Daniels contends because "there are
many injured persons in relation to this claim" and he "has
testified as a witness in numerous EED complaints," he should be
granted class certification.
The Judge finds that both Daniels's Complaint and Opposition Brief
merely allege he should be granted class certification because he
has testified as a witness for various minority employees who been
claimed to be the victims of discrimination and retaliation at the
hands of the Defendants. Neither the Complaint nor the Opposition
Brief articulate a proposed class definition that is readily
ascertainable based on objective criteria. Daniels fails to
identify a particular group that was harmed during a particular
time frame, in a particular location, in a particular way, and the
Judge cannot ascertain the class' membership in an objective
manner.
Moreover, the Judge finds that Daniels' bare allegations do not
satisfy the two-prong test required pursuant to Federal Rule of
Civil Procedure 23. Daniels, holding the burden, fails to
establish that his proposed class meets all four requirements in
Rule 23(a) and that the proposed class qualifies under at least on
section of Rule 23(b). He fails to allege: (1) the potential
number of plaintiffs; (2) whether there are questions of law or
fact common to the class; (3) whether his claim is typical of those
of the members of the class; and (4) whether he will fairly and
adequately protect the interests of the class. Accordingly,
Daniels' request for class certification is denied.
For the reasons he set forth, Judge Martinotti granted Defendants'
Motion to Dismiss. Daniels may file an amended Complaint by no
later than Aug. 12, 2019.
A full-text copy of the Court's July 31, 2019 Order is available at
https://is.gd/1XlIi5 from Leagle.com.
BENJAMIN DANIELS, Plaintiff, pro se.
MR. GARY LANIGAN, MR. ROBERT BUECHELE, MR. SALVATORE D'AMICO, MR.
TREVOR BEATTY, MR. ROBERT CHETIRKIN, MR. ANTHONY DEGNER & STATE OF
NJDOC, Defendants, represented by ADAM ROBERT GIBBONS, STATE OF NEW
JERSEY & NICHOLAS ANGELO SULLIVAN, STATE OF NEW JERSEY, ATTORNEY
GENERAL'S OFFICE.
NEWREZ LLC: Naiman Sues over Unsolicited Robocalls
--------------------------------------------------
Sidney Naiman, individually and as the representative of a class of
similarly-situated persons, the Plaintiff, vs. NewRez LLC, the
Defendant, Case No. 2:19-cv-05085-SRB (D. Ariz., Sept. 4, 2019),
challenges Defendant's practice of initiating autodialed or
artificial voice telemarketing calls to cellular telephones without
the prior express written consent of the called parties as required
by the Telephone Consumer Protection Act.
According to the complaint, the Defendant solicits business through
robocalls to cellular phones. These robocalls are made directly by
Defendant, or by a telemarketer acting on Defendant's behalf.
Defendant's practice caused actual harm to Plaintiff and the other
members of the Class in several ways, including temporarily using
their cellular phones and tying up their lines, invading their
privacy, causing wear and tear on their cellular phones, consuming
battery life, and causing some of them to be charged for calls they
did not want to receive.
Moreover, these calls injured Plaintiff and the Class because they
were frustrating, obnoxious, annoying, and a nuisance, and
disturbed their solitude, the lawsuit says.[BN]
Attorneys for the Plaintiff are:
Trinette G. Kent, Esq.
KENT LAW OFFICES
3219 E Camelback Rd #588
Phoenix, AZ 85018
Telephone: (480) 247-9644
Facsimile: (480) 717-4781
E-mail: tkent@kentlawpc.com
- and -
Tod A. Lewis, Esq.
Jonathan B. Piper, Esq.
BOCK & HATCH, LLC
134 N. La Salle St., Ste. 1000
Chicago, IL 60602
Telephone: (312) 658-5500
Facsimile: (312) 658-5555
E-mail: service@classlawyers.com
NRT WEST: Ct. Denies Certification of Three Classes in Chinitz Suit
-------------------------------------------------------------------
U.S. Magistrate Judge Nathanael M. Cousins denies the Plaintiff's
motion for class certification in the lawsuit captioned RONALD
CHINITZ v. NRT WEST, INC., d/b/a Coldwell Banker Residential
Brokerage Company, Case No. 5:18-cv-06100-NC (N.D. Cal.).
In this class action, Plaintiff Ronald Chinitz accuses Defendant
NRT West ("NRT"), Inc., of making unlawful robocalls. Mr. Chinitz
sought to certify three nationwide classes.
1. National Do-Not-Call Registry Class ("NDNC Class"):
All persons in the United States who: (a) received more
than one call made by one of NRT's real estate agents on
NRT's behalf or by another agent of NRT on NRT's behalf;
(b) promoting NRT's goods or services; (c) in a 12-month
period; (d) on their residential telephone line; (e) whose
residential telephone number(s) appear on the DNC; (f) at
any time since October 4, 2014;
2. National Internal Do-Not-Call Class ("IDNC Class"):
All persons in the United States who: (a) received more
than one call made by one of NRT's real estate agents on
NRT's behalf or by another agent of NRT on NRT's behalf;
(b) promoting NRT's goods or services; (c) in a 12-month
period; (d) on their residential telephone line; (e) who
made a request not to receive calls from or on behalf of
NRT; (f) at any time since October 4, 2014; and
3. National Prerecorded Message Residential Class
("Prerecorded Message Class"):
All persons in the United States to whom: (a) one of NRT's
real estate agents on NRT's behalf, or another agent of NRT
on NRT's behalf, initiated one of more non-emergency
telephone calls; (b) promoting NRT's goods or services; (c)
to a recipient's residential telephone line; (d) through
the use of an artificial or prerecorded voice; (e) at any
time since October 4, 2014.
"For two of those classes, Chinitz failed to present any evidence
to establish numerosity. And for all of his proposed classes,
Chinitz failed to present sufficient evidence to establish a common
question," Judge Cousins opines.[CC]
NUTRACEUTICAL CORP: 9th Cir. Dismisses Petition in Lambert
----------------------------------------------------------
The United States Court of Appeals, Ninth Circuit, issued a
Memorandum dismissing the Petition in the case captioned TROY
LAMBERT, on Behalf of Themselves and All Others Similarly Situated,
Plaintiff-Appellant, v. NUTRACEUTICAL CORP., Defendant-Appellee.
No. 15-56423. (9th Cir.).
Troy Lambert petitions under Federal Rule of Civil Procedure 23(f)
for leave to appeal the district court's order decertifying the
proposed class in this case.
The only question the Court must answer is whether Lambert's Rule
23(f) petition is timely where, following the district court's
scheduling order, Lambert filed a motion for reconsideration 20
days after the district court's decertification order and then
filed a Rule 23(f) petition 14 days after the denial of the motion
for reconsideration.
Lambert first argues that his Rule 23(f) petition was timely
because his motion for reconsideration was filed within the time
allowed by Federal Rule of Civil Procedure 59(e) and the time to
file a petition ran from the disposition of the reconsideration
motion, not the decertification order.
This argument is unavailing. In Nutraceutical, the Supreme Court
noted that a timely motion for reconsideration filed within a
window to appeal renders an otherwise final decision of a district
court not final.
Thus, a timely motion for reconsideration does not toll anything
but rather affects the antecedent issue of when the 14-day limit
begins to run. By extension, if a motion for reconsideration is
filed after the Rule 23(f) 14-day window to file a petition passes,
then the district court's order has already become final and the
untimely motion cannot impact the antecedent issue of when the
14-day period begins to run.
In other words, Lambert cannot resuscitate the Rule 23(f) deadline
by filing a motion for reconsideration after the 14-day period has
expired.
Lambert also argues that his Rule 23(f) petition was timely because
the motion for reconsideration was filed within the time limit set
by the district court, causing the time to appeal to run from the
court's disposition of the reconsideration motion.
This argument, however, contravenes the Supreme Court's unequivocal
conclusion that Rule 23(f)'s time limit is purposefully
unforgiving.
Last, Lambert argues that the district court's decision denying the
motion for reconsideration constituted an order granting or denying
class-action certification under Rule 23(f), and therefore
triggered a new 14-day window to appeal. Lambert asserts that it
constituted a new certification order because the district court
altered the decertification order by directing Lambert's counsel to
give notice to the class of the decertification and, alternatively,
because the reconsideration denial with its notice provision falls
within the plain language of Rule 23(f). As we previously pointed
out, other circuits that have considered motions for
reconsideration filed more than 14 days after the order granting or
denying certification have suggested or held that petitioners may
receive an additional 14 days to file a Rule 23(f) petition only if
the motion for reconsideration was granted and changed the status
quo of class certification.
Here, the district court denied Lambert's motion for
reconsideration and did not change the status quo of class
certification. In ordering counsel to give notice of class
decertification, the district court did not change the status quo
of class certification itself. Moreover, we note that the district
court explicitly instructed Lambert not to file a new motion for
class certification and Lambert's counsel stated on the record that
it was counsel's intention to file only a motion for
reconsideration. Allowing Lambert to restyle his motion for
reconsideration as a motion to recertify the class would defeat the
function of the Rule 23(f) deadline.
The Court therefore rejects Lambert's arguments and dismiss the
petition as untimely.
A full-text copy of the Ninth Circuit's August 27, 2019 Memorandum
is available at https://tinyurl.com/y2seapz4 from Leagle.com.
NYU LANGONE: Desir Sues to Recover Unpaid Wages for Interns
-----------------------------------------------------------
CINDY DESIR, on behalf of herself, FLSA Collective Plaintiffs and
the Class v. NYU LANGONE HEALTH SYSTEM, and NICOLE REISS, Case No.
1:19-cv-08144 (S.D.N.Y., Aug. 30, 2019), alleges that pursuant to
the Fair Labor Standards Act of 1938, she and other Pharmacy Tech
Interns are entitled to recover from the Defendants: (a) unpaid
minimum wages, (b) unpaid overtime compensation, (c) liquidated
damages, (d) prejudgment and post-judgment interest, and (e)
attorneys' fees and costs.
NYU was and still is a not-for-profit corporation duly organized
under and existing by virtue of the laws of the State of New York,
having its principal place of business located at 550 First Avenue,
in New York City. Nicole Reiss, was employed by NYU, working at
the NYU's Hospital at 550 1st Avenue, where the Plaintiff worked.
NYU operates not for profit hospitals in the greater metropolitan
New York City area, including the one at 550 1st Avenue.[BN]
The Plaintiff is represented by:
Arthur H. Forman, Esq.
LAW OFFICE OF ARTHUR H. FORMAN
90-20 Metropolitan Avenue
Forest Hills, NY 11375
Telephone: (718) 268-2616
E-mail: mail@ahforman.com
O'RYAN OIL: Johnson Overtime Suit Goes to Dallas Court
------------------------------------------------------
THOMAS GLENDALE JOHNSON, INDIVIDUALLY AND ON BEHALF OF ALL OTHERS
SIMILARLY SITUATED, the Plaintiff, vs. RYAN C. HOERAUF, INC. D/B/A
O'RYAN OIL & GAS AND RYAN C. HOERAUF, the Defendant, Case No.
3:19-cv-01992-L (E.D. Tex., May 8, 2019), alleges that Defendant
failed to pay overtime wages pursuant to the Fair Labor Standards
Act.
In November 2016, the Plaintiff began his employment at O'Ryan Oil
& Gas' Big "R" Gas Plant in Henderson County, Texas. His job at
O'Ryan Oil & Gas was called a plant operator; however, the work he
did for O'Ryan Oil & Gas was not exempt as defined under 29 CFR
part 451.
The Plaintiff alleges that he was misclassified as an exempt
employee under the FLSA. The evidence at trial will show that
Plaintiff was not paid overtime wages at one and one-half times his
regular hourly rate for all hours worked in excess of 40 hours in a
work week, the lawsuit says.
On August 7, 2019, the case was transferred from the Eastern
District of Texas, Tyler Division, to the Northern District of
Texas, Dallas Division, following a July 16 order by Magistrate
Judge John D. Love granting a Motion to Change Venue.[BN]
Attorney for the Plaintiff is:
William S. Hommel, Jr., Esq.
HOMMEL LAW FIRM
5620 Old Bullard Road, Suite 115
Tyler, TX 75703
Telephone: 903 596-7100
Facsimile: 469 533-1618
OCWEN LOAN: Grant of Leave to Amend Count II in Andrade Recommended
-------------------------------------------------------------------
In the case, ARTUR and JULIA ANDRADE, on behalf of themselves and
all others so similarly situated, v. OCWEN LOAN SERVICING, LLC, et
al, C.A. No. 18-00385-WES (D. R.I.), Magistrate Judge Lincoln D.
Almond of the U.S. District Court for the District of Rhode Island
recommended that (i) the Defendants' Motion to Dismiss Plaintiffs'
Class Action Complaint be denied as moot, and (ii) Plaintiffs'
Motion for Leave to File an Amended Class Action Complaint be
granted in part.
The case is a putative class action challenging the validity of
mortgage foreclosures occurring between July 1, 2015 and Sept. 28,
2017. The representative Plaintiffs identified in the Amended
Class Action Complaint (Andrades and Dubois) were the subject of
residential mortgage foreclosures on June 1, 2017 and Sept. 26,
2017, respectively. The representative Plaintiffs sue Ocwen as the
third-party mortgage loan servicer for their respective mortgagees,
HSBC Bank USA, NA as Trustee for Option One Mortgage Loan Trust
2007-HL1 ("HSBC"), and Deutsche Bank Savings Fund Society, FSB as
Trustee for Argent Securities, Inc. Asset Backed Pass-through
Certificates 2006-M2.
In Count II, the Plaintiffs allege that he Defendants failed to
foreclose and sell in a manner prescribed by "applicable law" in
breach of the applicable mortgage contracts. In particular, they
allege that Ocwen was not a licensed, third-party servicer in Rhode
Island at the time of the foreclosures in violation of R.I. Gen.
Laws Section 19-14.11-1 and an April 20, 2017 Emergency Cease and
Desist Order issued by the Rhode Island Department of Business
Regulation ("RIDBR") and directed at Ocwen.
Pending before the Court for a report and recommendation are the
Defendants' Motion to Dismiss Plaintiffs' Class Action Complaint
and the Plaintiffs' Motion for Leave to File an Amended Class
Action Complaint. A hearing was held on July 22, 2019.
At the hearing, the Plaintiffs' counsel indicated that he was no
longer pursuing Count I (a Declaratory Judgment claim) and focused
his request to amend and opposition to the Defendants' dismissal
arguments on Count II of the proposed Amended Class Action
Complaint (a Breach of Contract claim). Accordingly, the Court
will consider the Plaintiffs' Motion to Amend solely as to Count II
and whether or not such amendment would be futile (applying the
Rule 12(b)(6) standard) as argued by the Defendants. Such
treatment moots the Defendants' pending Motion to Dismiss as to the
original Class Action Complaint.
Count II is a state law breach of contract claim. The
representative Plaintiffs allege that their mortgage contracts
(consistent with all standard mortgage contracts) provide that any
foreclosure and sale be conducted in a manner prescribed by
applicable law. They describe Count II as a straightforward state
law contract theory, alleging that the Defendants failed to
foreclose in the manner prescribed by applicable law by foreclosing
and conducting mortgagee sales when not licensed to do so in Rhode
Island and when under an order by the RIDBR to cease and desist
such activity.
On balance and applying the Rule 12(b)(6) standard, Magistrate
Judge Almond holds that the Count II of the Amended Class Action
Complaint states a plausible breach of contract claim. The
mortgage contracts in issue require foreclosure and sale in the
manner prescribed by applicable law. It does not take a leap of
logic to conclude that a mortgagor who engages an unlicensed loan
servicer to effectuate a foreclosure is not acting in a manner
prescribed by applicable law. It is undisputed that R.I. Gen. Laws
Section 19-14.11-4 provides that conducting any business covered by
Chapter 14.11 without holding a valid license as required, or
assisting, or aiding and abetting, such unlicensed activity, is a
statutory violation.
The Defendants raise additional factual defenses that cannot be
resolved pursuant to Rule 12(b)(6). For instance, the Defendants
argue that the Consent Order between Ocwen and RIDBR "definitively
and conclusively" resolved Ocwen's licensing status. The
Magistrate holds that the Court simply cannot reach that conclusion
on the current record. The Plaintiffs allege plainly that Ocwen
was not properly licensed in the State of Rhode Island at the
relevant time, and the Court must accept that well-pleaded
allegation as true at this stage.
Also, that allegation is supported by the terms of the RIDBR
Emergency Cease and Desist Order and not directly controverted by
the Consent Order. The Consent Order does not directly address
Ocwen's licensing status at the time of the subject foreclosures.
While it may be true that the Consent Order resolved Ocwen's
licensing issue with the RIDBR, the Consent Order, on its face,
does not specifically grant retroactive licensure to Ocwen,
acknowledge that Ocwen was properly licensed during the relevant
period, or absolve Ocwen from any civil liability for unlicensed
activity.
The Defendants also argue that the Plaintiffs' only challenge to
the foreclosures in issue relate to the licensing issue. In other
words, they contend that these defaulted mortgages were destined
ultimately for foreclosure, license or no license. While the
Defendants may well be correct and the Plaintiffs may not have any
evidence of actual damages flowing from the alleged breach, the
Magistrate holds that that is a fight for another day and presents
a factual issue which cannot be resolved at this stage of the
proceedings.
For the foregoing reasons, Magistrate Judge Almond recommended that
the Defendants' Motion to Dismiss be denied as moot and that the
Plaintiffs' Motion to Amend be granted in part solely as to the
proposed Count II breach of contract claim. The Plaintiffs shall,
within 14 days, submit a proposed one-count Amended Class-Action
Complaint to the Court for its consideration in conjunction with
the Report and Recommendation.
Any objection to the Report and Recommendation must be specific and
must be filed with the Clerk of the Court within 14 days of its
receipt. Failure to file specific objections in a timely manner
constitutes waiver of the right to review by the District Court and
the right to appeal the District Court's decision.
A full-text copy of the Court's July 31, 2019 Report and
Recommendation is available at https://is.gd/Xh33aW from
Leagle.com.
Artur Andrade, On behalf of themselves and all other so similarly
situated & Julia Andrade, On behalf of themselves and all other so
similarly situated, Plaintiffs, represented by Todd S. Dion --
toddsdion@msn.com -- Law Office of Todd S. Dion Esq.
Ocwen Loan Servicing, LLC & HSBC Bank USA, N.A., as Trustee for
Option One Mortgage Loan Trust 2007-HL1, Defendants, represented by
Samuel C. Bodurtha -- sbodurtha@hinshawlaw.com -- Hinshaw &
Culbertson LLP & Ethan Z. Tieger -- etieger@hinshawlaw.com --
Hinshaw & Culbertson LLP.
PERRIGO CO: Claims in Carmignac Securities Fraud Suit Narrowed
--------------------------------------------------------------
In the case, CARMIGNAC GESTION, S.A., Plaintiff, v. PERRIGO COMPANY
PLC, JOSEPH C. PAPA, and JUDY L. BROWN, Defendants. FIRST MANHATTAN
CO., Plaintiff, v. PERRIGO COMPANY PLC, JOSEPH C. PAPA, and JUDY L.
BROWN, Defendants. MANNING & NAPIER ADVISORS, LLC, Plaintiff, v.
PERRIGO COMPANY PLC, JOSEPH C. PAPA, and JUDY L. BROWN, Defendants.
NATIONWIDE MUTUAL FUNDS, on behalf of its series NATIONWIDE GENEVA
MID CAP GROWTH FUND and NATIONWIDE S&P 500 INDEX FUND, and
NATIONWIDE VARIABLE INSURANCE TRUST, Plaintiffs, v. PERRIGO COMPANY
PLC, JOSEPH C. PAPA, and JUDY L. BROWN, Defendants, Civil Action
Nos. 17-10467, 18-2291, 18-674, 18-15382 (D. N.J.). Judge Madeline
Cox Arleo of the U.S. District Court for the District of New Jersey
granted in part and denied in part the Defendants' Motions to
Dismiss certain claims in each action.
The Judge considers the viability of claims raised by the four
Plaintiffs that opted out of a putative class action predicated
upon alleged violations of federal securities laws. Plaintiffs
Carmignac Gestion, S.A., Manning & Napier Advisors, LLC, First
Manhattan Co., and Nationwide Mutual Funds along with Nationwide
Variable Insurance, brought four separate but related lawsuits
against Defendants Perrigo, Papa, and Brown.
The Plaintiffs are corporate entities that either purchased Perrigo
stock on behalf of investors or advised investors in connection
with the purchase of Perrigo stock. In each action, the claims
arising from the securities purchases have been assigned to or
otherwise lie with the named Plaintiffs.
Defendant Perrigo is a publicly-traded company that manufactures
specialty, generic, and over-the-counter ("OTC") pharmaceutical and
healthcare products. Defendant Papa served as Perrigo's CEO and as
Chairman of its Board of Directors from 2006 to April 2016.
Defendant Brown served as Perrigo's CFO from 2006 to February
2017.
The Defendants' alleged misrepresentations and omissions relate to
a number of issues that impacted Perrigo's financial stability and
growth potential. Those allegations form the basis for the claims
in the related putative class action, Roofer's Pension Fund v.
Papa. The claims asserted by the class action plaintiffs
substantially overlap with the claims Plaintiffs allege in the
instant four individual actions. Relevant to the pending Motions
to Dismiss, the Plaintiffs raise new claims alleging that the
Defendants misrepresented and concealed the impact of increased
competition and downward pricing pressure on Perrigo's generic drug
revenues.
The Plaintiffs allege that from April to October 2015, the
Defendants made multiple misrepresentations about the status and
sustainability of Perrigo's generic drug pricing. The Plaintiffs
allege that, contrary to the Defendants' assurances about the
stability and sustainability of Perrigo's generic drug prices, the
Company's Rx segment was negatively impacted by the influx of
generic drug approvals. They further allege that Perrigo
acknowledged the financial ramifications caused by "a reduction in
pricing expectations in our Rx segment due to industry and
competitive pressures" only a few months after Brown assured
investors that Perrigo was "insulated" from the "pricing drama."
On Nov. 1, 2017, Carmignac filed a securities fraud Complaint
against the Defendants based on the same allegations that give rise
to the claims in the related class action. Plaintiffs Manning,
First Manhattan, and Nationwide subsequently filed separate,
similar actions against the Defendants. The Plaintiffs' claims are
largely duplicative of the claims asserted in the related class
action. Because of the Stipulations, those duplicative claims are
not at issue in the pending Motions to Dismiss.
Relevant to the pending Motions, all four Plaintiffs raised new
claims relating to Perrigo's generic drug pricing. Under the new
theory, the Plaintiffs allege that the Defendants violated
securities laws by making misrepresentations and omissions to
investors about the stability and sustainability of Perrigo's drug
pricing, while failing to disclose increased competition and
downward pricing pressure in the generic drug market. Manning and
First Manhattan also maintain new claims for violations of Section
18 of the Exchange Act, alleging that Perrigo made
misrepresentations that concealed its participation in an
anti-competitive price-fixing scheme. Although the price-fixing
allegations were addressed in Roofer's Pension Fund, they were not
examined in the context of Section 18.
The Defendants now move to dismiss the Section 18 claims raised by
First Manhattan and Manning, and all the claims premised upon
Perrigo's alleged failure to adequately disclose the increased
competition in the generic drug market. All four Motions are
opposed.
Judge Arleo granted in part and denied in part the Defendants'
Motions to Dismiss. She granted the Defendants' Motions to Dismiss
with respect to claims premised upon the statements made to First
Manhattan representatives during the April 22, 2015 conference call
and during the Sept. 30, 2015 meeting. The Judge agrees with the
Defendants that First Manhattan has failed to allege falsity.
First Manhattan has abandoned its claims with respect to these
challenged statements, as it presents no arguments in opposition to
dismissal. The statements are all inactionable as puffery or as
too vague to induce reliance.
The Judge denied the Defendants' Motions to Dismiss with respect to
all the other claims.
A full-text copy of the Court's July 31, 2019 Opinion is available
at https://is.gd/KNs9ZU from Leagle.com.
NATIONWIDE MUTUAL FUNDS, on behalf of its series NATIONWIDE GENEVA
MID CAP GROWTH FUND and NATIONWIDE S&P 500 INDEX FUND & NATIONWIDE
VARIABLE INSURANCE TRUST, on behalf of its series NVIT DYNAMIC U.S.
GROWTH FUND, NVIT MULTI-MANAGER LARGE CAP VALUE FUND, NVIT S&P 500
INDEX FUND, and TEMPLETON NVIT INTERNATIONAL VALUE FUN, Plaintiffs,
represented by MARISSA R. PARKER -- mparker@stradley.com --
STRADLEY RONON STEVENS & YOUNG LLP, JOSHUA EDWARD D'ANCONA --
jdancona@ktmc.co -- KESSLER TOPAZ MELTZER & CHECK LLP, JOSHUA
ANGELO MATERESE -- jmaterese@ktmc.co -- KESSLER TOPAZ MELTZER &
CHECK, LLP, MICHELLE M. NEWCOMER , KESSLER TOPAZ MELTZER & CHECK
LLP & JOSEPH THOMAS KELLEHER -- jkelleher@stradley.com -- STRADLEY,
RONON, STEVENS & YOUNG LLP.
PERRIGO COMPANY PLC, Defendant, represented by ALAN S. NAAR --
anaar@greenbaumlaw.com -- GREENBAUM, ROWE, SMITH & DAVIS, LLP.
JOSEPH C. PAPA, Defendant, represented by MARSHALL R. KING --
mking@gibsondunn.com -- GIBSON, DUNN & CRUTCHER LLP.
JUDY L. BROWN, Defendant, represented by BRIAN THOMAS FRAWLEY --
frawleyb@sullcrom.com -- SULIVAN & CROMWELL.
PETVET CARE: Orr Seeks Overtime Wages for Vet Tech
--------------------------------------------------
AMY ROYSE ORR, an individual, 0n behalf of herself and others
similarly situated, the Plaintiff, vs. PETVET CARE CENTERS
(CALIFORNIA), INC., a Delaware corporation; PETVET CENTERS, LLC, a
Delaware limited liability company; PETVET CENTERS, INC., a
Delaware corporation; VETERINARY MEDICAL AND SURGICAL GROUP, a
business entity, form unknown; and DOES 1 through 50, inclusive,
Case No. 9cv354063 (Cal. Super., Sept. 3, 2019), seeks to recover
minimum and overtime wages under the California Labor Code.
The Plaintiff was employed by Defendants as a non—exempt hourly
Veterinary Technician (Vet Tech) at Defendants' emergency
veterinary hospital and pet care facilities in San Juan Capistrano,
California.
PetVet Care Centers, Inc. owns and operates veterinary hospitals.
The Hospital manages and consolidates emergency animal hospital and
general practice veterinary clinics. PetVet Care Centers serves
customers in the United States.[BN]
Attorneys for the Plaintiff on behalf of herself and others
similarly situated, are:
David Yeremian, Esq.
Alvin B. Lindsay, Esq.
DAVID YEREMIAN & ASSOCIATES,
535 N. Brand B1Vd., Suite 705
Glendale, CA 91203
Telephone: (818) 230-8380
Facsimile: (818) 230-0308
E-mail: david@yeremianfaw.com
alvin@yeremianlaw.com
- and -
Emil Davtyan, Esq.
DAVTYAN PROFESSIONAL LAW CORPORATION
5959 Topanga Canyon Blvd, Suite 130
Woodland Hills, CA 91367
Telephone: (818) 875-2008
Facsimile: (818) 722-3974
E-mail: support@davtyanlaw.com
PLAINS ALL: Andrews Moves to Amend Definition of Fisher Subclass
----------------------------------------------------------------
In the lawsuit titled KEITH ANDREWS, an individual, TIFFANI
ANDREWS, an individual, BACIU FAMILY LLC, a California limited
liability company, ROBERT BOYDSTON, an individual, MORGAN
CASTAGNOLA, an individual, THE EAGLE FLEET, LLC, a California
limited liability company, ZACHARY FRAZIER, an individual, MIKE
GANDALL, an individual, ALEXANDRA B. GEREMIA, as Trustee for the
Alexandra Geremia Family Trust dated 8/5/1998, JIM GUELKER, an
individual, JACQUES HABRA, an individual, MARK KIRKHART, an
individual, MARY KIRKHART, an individual, RICHARD LILYGREN, an
individual, HWA HONG MUH, an individual, OCEAN ANGEL IV, LLC, a
California limited liability company, PACIFIC RIM FISHERIES, INC.,
a California corporation, SARAH RATHBONE, an individual, COMMUNITY
SEAFOOD LLC, a California limited liability company, SANTA BARBARA
UNI, INC., a California corporation, SOUTHERN CAL SEAFOOD, INC., a
California corporation, TRACTIDE MARINE CORP., a California
corporation, WEI INTERNATIONAL TRADING INC., a California
corporation and STEPHEN WILSON, an individual, individually and on
behalf of others similarly situated v. PLAINS ALL AMERICAN
PIPELINE, L.P., a Delaware limited partnership, PLAINS PIPELINE,
L.P., a Texas limited partnership, and JOHN DOES 1 through 10, Case
No. 2:15-cv-04113-PSG-JEM (C.D. Cal.), the Plaintiffs ask the Court
to modify its initial order certifying the Fisher Subclass to
correspond to the final evidence.
The proposed amended Fisher Subclass definition is:
All persons and businesses (Fishers) who owned or worked on
a vessel that was in operation as of May 19, 2015 and that:
(1) landed any commercial seafood in California Department
of Fish and Wildlife ("CDFW") fishing blocks 654, 655,
or 656; or
(2) landed any commercial seafood, except Groundfish or
Highly Migratory Species (as defined by the CDFW and the
Pacific Fishery Management Council), in CDFW fishing
blocks 651-656, 664-670, 678-686, 701-707, 718-726,
739-746, 760-764, or 806-809;
from May 19, 2010 to May 19, 2015, inclusive; and
all persons and businesses (Processors) in operation as of
May 19, 2015 who purchased such commercial seafood directly
from the Fishers and re-sold it at the retail or wholesale
level.
Excluded from the proposed Subclass are: (1) Defendants, any
entity or division in which Defendants have a controlling
interest, and their legal representatives, officers,
directors, employees, assigns and successors; (2) the judge
to whom this case is assigned, the judge's staff, and any
member of the judge's immediate family, and (3) businesses
that contract directly with Plains for use of the Pipeline.
The Plaintiffs contend that the proposed definition is limited to
the 50 blocks that contained the highest volumes of oil identified
by Dr. Rupert, using Dr. Mezic's model, plus five blocks that do
not meet that criteria, but are surrounded by "top 50" blocks. The
amended definition eliminates 17 blocks from the original
definition that were not among the most contaminated, including all
the groundfish-only blocks that were located north and west of
Point Conception. The proposed definition instead includes those
blocks south and east of the Channel Islands that, based on Dr.
Mezic's model, were among the most contaminated. The original
definition contained 36 blocks, the amended definition contains
55.
In May 2015, Plains' pipeline Line 901 (the "Pipeline") ruptured
onshore near Santa Barbara causing an oil spill into the Pacific
Ocean (the "Spill"). The Plaintiffs have long claimed that Plains
knew the entire Pipeline was severely corroded and at risk of
rupture.
These allegations have now been confirmed, the Plaintiffs assert.
The Plaintiffs add that Plains was indicted for its conduct leading
up to the Spill, and after vigorously defending itself in a
months-long trial, was found guilty by a California jury of nine
separate counts, including a felony count for knowingly discharging
oil into the ocean.
The Court will commence a hearing on November 18, 2019, at 1:30
p.m., to consider the Motion.[CC]
The Plaintiffs are represented by:
Robert L. Lieff, Esq.
Elizabeth J. Cabraser, Esq.
Robert J. Nelson, Esq.
Nimish R. Desai, Esq.
Wilson M. Dunlavey, Esq.
LIEFF CABRASER HEIMANN & BERNSTEIN, LLP
275 Battery Street, 29th Floor
San Francisco, CA 94111-3339
Telephone: (415) 956-1000
Facsimile: (415) 956-1008
E-mail: rlieff@lieff.com
ecabraser@lchb.com
rnelson@lchb.com
ndesai@lchb.com
wdunlavey@lchb.com
- and -
Lynn Lincoln Sarko, Esq.
Gretchen Freeman Cappio, Esq.
Daniel Mensher, Esq.
Ray Farrow, Esq.
KELLER ROHRBACK L.L.P.
1201 Third Ave., Suite 3200
Seattle, WA 98101
Telephone: (206) 623-1900
Facsimile: (206) 623-3384
E-mail: lsarko@kellerrohrback.com
gcappio@kellerrohrback.com
dmensher@kellerrohrback.com
rfarrow@kellerrohrback.com
- and -
Juli Farris, Esq.
Matthew J. Preusch, Esq.
KELLER ROHRBACK L.L.P.
801 Garden Street, Suite 301
Santa Barbara, CA 93101
Telephone: (805) 456-1496
Facsimile: (805) 456-1497
E-mail: jfarris@kellerrohrback.com
mpreusch@kellerrohrback.com
- and -
A. Barry Cappello, Esq.
Leila J. Noel, Esq.
Lawrence J. Conlan, Esq.
CAPPELLO & NOEL LLP
831 State Street
Santa Barbara, CA 93101-3227
Telephone: (805) 564-2444
Facsimile: (805) 965-5950
E-mail: abc@cappellonoel.com
lnoel@cappellonoel.com
lconlan@cappellonoel.com
- and -
William M. Audet, Esq.
Ling K. Kuang, Esq.
AUDET & PARTNERS, LLP
711 Van Ness Avenue, Suite 500
San Francisco, CA 94102-3275
Telephone: (415) 568-2555
Facsimile: (415) 568-2556
E-mail: waudet@audetlaw.com
lkuang@audetlaw.com
PLAN BENEFIT: Class of Plan Participants Certified in Chavez Suit
-----------------------------------------------------------------
The Hon. Sam Sparks granted the Plaintiffs' Motion for Class
Certification in the lawsuit entitled HERIBERTO CHAVEZ, EVANGELINA
ESCARCEGA as legal representative of JOSE ESCARCEGA, and JORGE
MORENO v. PLAN BENEFIT SERVICES, INC., FRINGE INSURANCE BENEFITS,
INC., and FRINGE BENEFIT GROUP, Case No. 1:17-cv-00659-SS (W.D.
Tex.).
The Class consists of "all participants in and beneficiaries of
employee benefit plans that provide benefits through CPT and CERT,
other than officers and directors of the Defendants and their
immediate family members, from July 6, 2011 until the time of
trial."
The Court appoints Heriberto Chavez, Evangelina Escarcega on behalf
of her disabled son Jose Escarcega, and Jorge Moreno as Class
Representatives. The Court also appoints the law firms of
Feinberg, Jackson, Worthman & Wasow LLP and Altshuler Berzon LLP as
Class Counsel.
Plaintiffs Heriberto Chavez, Evangelina Escarcega on behalf of her
disabled son Jose Escarcega, and Jorge Moreno bring this action on
behalf of themselves and a proposed class of similarly situated
participants and beneficiaries under the Employee Retirement Income
Security Act of 1974 against Defendants Fringe Insurance Benefits,
Inc., Plan Benefit Services, Inc., and Fringe Benefit Group.[CC]
PROFESSIONAL MAINTENANCE: Faces Headley Wage & Hour Suit in Cal.
----------------------------------------------------------------
CHRISTIAN HEADLEY, individually and on behalf of all similarly
situated employees of Defendants in the State of California v.
PROFESSIONAL MAINTENANCE SYSTEMS, INC.; and DOES 1 THROUGH 50,
inclusive, Case No. 37-2019-00045619-CU-OE-CTL (Cal. Super., San
Diego Cty., Aug. 29, 2019), alleges that the Defendants decreased
their employment-related costs by systematically violating
California wage and hour laws and engaging in unlawful and unfair
business practices, including failure to pay all minimum and
regular wages for all hours worked.
Professional Maintenance Systems, Inc. is a California company with
its principal place of business in San Diego, California, operating
and doing business in the state of California, including in San
Diego County. The true names and capacities of the Doe Defendants
are presently unknown to the Plaintiff.
PMS offers maintenance services. The Company provides building
cleaning, janitorial, custodial supplies, power washing, stone
care, and wall washing services.[BN]
The Plaintiff is represented by:
Graham S.P. Hollis, Esq.
Hali M. Anderson, Esq.
GRAHAMHOLLIS APC
3555 Fifth Avenue, Suite 200
San Diego, CA 92103
Telephone: (619) 692-0800
Facsimile: (619) 692-0822
E-mail: ghollis@grahamhollis.com
handerson@grahamhollis.com
QUALITY HEALTHCARE: Guyton Seeks to Recover Unpaid Overtime Wages
-----------------------------------------------------------------
Natessa Guyton, individually and on behalf of all others similarly
situated, Plaintiffs, v. Quality Healthcare LLC, Verlencia Myers
and Jetuwan Brown, Defendants, Case No. 19-cv-00149 (N.D. Miss.,
August 15, 2019), seeks to recover unpaid overtime wages, an
additional equal amount as liquidated damages, as well as interest,
reasonable attorneys' fees, costs, and disbursements in violation
of the Fair Labor Standards Act.
Quality Healthcare is in the business of offering in-home private
duty nursing services as well as homemaker and companionship
services, including elderly care, respite care and private duty
nursing. Guyton worked for Quality Healthcare in excess of 40 hours
during workweeks between August 5, 2016 and the present. [BN]
Plaintiff is represented by:
George B. Ready, Esq.
LAW OFFICE OF GEORGE B. READY
175 East Commerce St.
P.O. Box 127
Hernando, MS 38632
Tel: (662) 429-7088
Email: gbready@georgebreadyattorneys.com
- and -
Nathaniel A. Bishop, Esq.
JACKSON, SHIELDS, YEISER & HOLT
262 German Oak Drive
Memphis, TN 38018
Telephone: (901) 754-8001
Facsimile: (901) 754-8524
Email: nbishop@jsyc.com
RMLS HOP: Slaughter Seeks Overtime Pay for Restaurant Staff
-----------------------------------------------------------
SHAKURA SLAUGHTER, 3281 Kenaston Dr. Columbus Ohio 43232, On behalf
of herself and all others similarly situated, the Plaintiff, v.
RMLS HOP OHIO, L.L.C. c/o Ohio Statutory Agent National Service
Information, Inc. 145 Baker Street Marion, OH 43302 and ROMULUS
HOLDINGS LLC c/o Statutory Agent David A McEvoy 4560 East Camp
Lowell Drive Tucson, AZ 85712, the Defendants, Case No.
2:19-cv-03812-EAS-KAJ (S.D. Ohio, Sept. 3, 2019), challenges
policies and practices of the Defendants that violated the minimum
wage and overtime provisions of the Fair Labor Standards Act and
the Ohio overtime compensation statute.
The Defendants have employed hundreds of full and part-time tipped
servers (tipped employees). The Plaintiff was employed by
Defendants from about March 2018 to July 2018 as a server at the
Hilliard, Ohio IHOP location. The Plaintiff also worked at the
Reynoldsburg, Ohio IHOP location from about December 2018 to March
2019 as a server.
The Defendants regularly and frequently required Plaintiff and the
FLSA Collective and Ohio Class to perform non-tipped duties
unrelated to their tipped occupations including but not limited to
washing trays, washing dishes; stocking ice; washing appliances;
stocking and arranging the salad case (including retrieving
materials from freezers, prepping the salad, weighing and
apportioning salad, portioning dressings and portioning toppings),
working the grill line and performing the primary job duties of
cook; operating the dish tank and performing the primary job duties
of a dishwasher; breaking down and cleaning the server line;
scrubbing and cleaning storage shelves in the kitchen; cleaning and
scrubbing coffee makers, equipment and pots; preparing delivery
orders for Uber Eats, Door Dash, and Grub Hub; packing and bagging
condiments; preparing takeout orders and online orders from the
IHOP website and mobile application; cutting lemons and limes, and
other workplace maintenance tasks.
However, while Plaintiff, the FLSA Collective, and Ohio Class
worked more than 40 hours in a single workweek, as a result of
Defendants' minimum wage violations and unlawful tip credit
practices and policies, Defendants paid Plaintiff and other members
of the FLSA Collective and Ohio Class a reduced overtime wage when
these employees worked more than 40 hours in a single workweek, the
lawsuit says.
Defendants are franchise owners and operators of 100 plus
International House of Pancakes (IHOP) restaurant locations across
11 states, including several in Ohio.[BN]
Attorneys for the Plaintiff are:
Kevin M. McDermott II, Esq.
Joseph F. Scott, Esq.
Ryan A. Winters, Esq.
SCOTT & WINTERS LAW FIRM, LLC
The Caxton Building
812 Huron Rd. E., Suite 490
Cleveland, OH 44115
Telephone: (216) 912-2221
Facsimile: (216) 350-6313
E-mail: jscott@ohiowagelawyers.com
rwinters@ohiowagelawyers.com
kmcdermott@ohiowagelawyers.com
ROBERT BAGGETT: Court Dismisses J. Hood's Pro Se Complaint
----------------------------------------------------------
The United States District Court for the Eastern District of
Tennessee issued an Order dismissing the Prisoner's Pro Se
Complaint in the case captioned JONATHON C. HOOD, 1,000,000 JOHN
DOES, and 1,000,000 JANE DOES, Plaintiffs, v. ROBERT BAGGETT, et
al., Defendants. No. 4:19-cv-15-HSM-SKL. (E.D. Tenn.).
Johnathon C. Hood, an inmate at Trousdale Turner Correctional
Center (TTCC), filed a pro se Complaint on behalf of himself, as
well as on behalf of the People of Tennessee, 1,000,000 John Does
and 1,000,000 Jane Does.
The allegations thereafter are difficult to discern. Plaintiff
argues that Defendants are attempting to discharge the fines of all
the above potential plaintiffs and expire the statute of
limitations that would hold them liable, but also argues that this
action should be retroactive back to the 1970s or as far back as
records are kept.
He requests that the Court classify the offenses he has alleged as
federal offenses and assign a special prosecutor because the
Defendants receive federal funds and have used the funds that they
have allegedly collected legally in federal petitions and grants,
thus defrauding the American people and the federal government.
Under the Prison Litigation Reform Act (PLRA), district courts must
screen prisoner complaints and sua sponte dismiss any claims that
are frivolous or malicious, fail to state a claim for relief, or
are against a defendant who is immune. Courts must liberally
construe pro se pleadings filed in civil rights cases and hold them
to a less stringent standard than formal pleadings drafted by
lawyers.
When reviewing a complaint for failure to state a claim under Rule
12(b)(6), the Court must take all of the factual allegations in the
complaint as true. While detailed factual allegations are not
required, a complaint must contain more than an unadorned,
the-defendant-unlawfully-harmed-me accusation. Therefore, to
survive dismissal for failure to state a claim, plaintiff's factual
allegations must be enough to raise a right to relief above the
speculative level on the assumption that all the allegations in the
complaint are true.
First and foremost, in the Complaint, Plaintiff clearly states that
his victory in his individual action asserting these claims is a
necessary prerequisite for the claims that he seeks to assert on
behalf of a class of current or former inmates with similar claims.
But Plaintiff did not succeed in his individual action. Despite his
hopes for success in obtaining a settlement from Defendant Baggett
in that action, the Court dismissed all of his claims pursuant to
the PLRA for failure to state a claim. Accordingly, by Plaintiff's
own admission a necessary condition-precedent to pursuing this
action has not been met, and the basis for Plaintiff's Complaint is
now moot.
Even if Plaintiff had succeeded in his individual action, however,
he would still not be entitled to pursue this action to assert the
constitutional rights of other prisoners and criminal defendants.
Pro se prisoners are generally limited to legal actions in which
they seek to vindicate violation of their own constitutional
rights. Absent a request for class certification pursuant to
Federal Rule of Civil Procedure 23, a pro se prisoner lacks
standing to assert the constitutional rights of other prisoners.
And even when a pro se prisoner requests class certification,
federal courts routinely conclude that pro se prisoners are not
able to fairly and adequately represent the interests of a class.
Plaintiff has simply stated no plausible claim for relief in his
Complaint. Accordingly, the Court DENIES Plaintiff's Motion for a
state-wide class action and hereby DISMISSES this action in its
entirety for failure to state a claim upon which relief may be
granted pursuant to 28 U.S.C. Sections 1915(e)(2)(B) and 1915(A).
A full-text copy of the District Court's August 27, 2019 Memorandum
Opinion is available at https://tinyurl.com/yyrezq3c from
Leagle.com.
Jonathon C. Hood, Plaintiff, pro se.
1,000,000 John Does, Plaintiff, pro se.
1,000,000 Jane Does, Plaintiff, pro se.
RUSTIC FROG: Taylor Seeks Minimum & OT Wages for Exotic Dancers
---------------------------------------------------------------
CHIMERE TAYLOR, individually, and on behalf of all others similarly
situated, the Plaintiff, vs. RUSTIC FROG STUDIOS, LLC, a Domestic
Limited Liability Company, and DONALD R. SCOTT, individually, the
Defendants, Case No. 4:19-cv-00185-SEB-DML (S.D. Ind., Sept. 3,
2019), seeks to recover minimum wage and overtime pay under the
Fair Labor Standards Act of 1938.
The case implicates an adult entertainment club which goes by the
trade name of "Rustic Frog." The Defendants have a longstanding
policy of misclassifying their employees as independent
contractors.
The Defendants required and/or permitted Chimere Taylor and others
to work as exotic "entertainers" and/or dancers at their adult
entertainment club in excess of 40 hours per week, but refused to
compensate them at the applicable minimum wage and overtime rate.
In fact, Defendants refused to compensate Plaintiff at all for the
hours she worked. Plaintiff's only compensation was in the form of
tips from club patrons.[BN]
Counsel for the Plaintiff are:
J. Corey Asay, Esq.
Morgan & Morgan, P.A.
333 W. Vine Street, Suite 1200
Lexington, KY 40507
Telephone: (859) 286-8368
Facsimile: (859) 286-8384
E-mail: casay@forthepeople.coms
SAMARITAN DAYTOP: Denied OT Pay, Wage Statements, Daise Suit Says
-----------------------------------------------------------------
Jack Daise, individually and on behalf of others similarly
situated, Plaintiff, v. Samaritan Daytop Village, Inc., Defendant,
Case No. 19-cv-04732 (S.D. N.Y., August 9, 2019), seeks to recover
unpaid minimum and overtime wages and redress for failure to
provide itemized wage statements pursuant to the Fair Labor
Standards Act of 1938 and New York Labor Law, including applicable
liquidated damages, interest, attorneys' fees and costs.
Defendant owns and operates transitional housing facilities, mental
health shelters, outpatient treatment programs, residential
treatment centers throughout the city and state of New York and
also provides services for substance abusers, military veterans and
seniors. Daise worked as a shift supervisor at Bridge Haven
Transitional Residence, one of its transitional housing facilities
located at 165 West 169th Street, Bronx, New York 10452. He claims
to have spent more than forty hours per week but did not receive
overtime pay for this. [BN]
Plaintiff is represented by:
Christopher H. Lowe, Esq.
LIPSKY LOWE LLP
630 Third Avenue, Fifth Floor
New York, NY 10017-6705
Tel: (212) 392-4772
Fax: (212) 444-1030
Email: chris@lipskylowe.com
SEALY INC: Sarmiento Seeks to Certify 3 Classes of Employees
------------------------------------------------------------
The Plaintiffs in the lawsuit captioned JESUS SARMIENTO and JUAN
CHAVEZ, on behalf of themselves and all others similarly situated
and on behalf of the general public v. SEALY, INC. and SEALY
MATTRESS MANUFACTURING COMPANY, LLC, Case No. 4:18-cv-01990-JST
(N.D. Cal.), seek an order certifying these classes:
1. All nonexempt employee of Defendants in California who
concurrently worked at two or more positions for Defendants
with differently hourly rates of pay under the union
contract since March 31, 2014;
2. All employees who were terminated from their employment
with Defendants in California and all employees who
resigned from their employment with Defendants since
March 31, 2015; and
3. All employees of Defendants in California who received wage
statements since March 31, 2017 to present.
The Plaintiffs also ask the Court to appoint them as class
representatives and to appoint Burton Employment Law as class
counsel.
The Court will commence a hearing on December 18, 2019, at 2:00
p.m., to consider the Motion.[CC]
The Plaintiffs are represented by:
Jocelyn Burton, Esq.
Scott Nakama, Esq.
BURTON EMPLOYMENT LAW
1939 Harrison Street, Suite 400
Oakland, CA 94612
Telephone: (510) 350-7025
Facsimile: (510) 473-3672
E-mail: jburton@burtonemploymentlaw.com
snakama@burtonemploymentlaw.com
SLEEPY'S LLC: Settlement in Sullivan Suit Has Prelim Approval
-------------------------------------------------------------
In the case, LAURITA SULLIVAN and CARLOS BRYANT, on behalf of
themselves and all others similarly situated; Plaintiffs, v.
SLEEPY'S LLC; MATTRESS FIRM, INC.; Defendants, C.A. No.
1:17-cv-12009 (D. Mass.), Judge Richard G. Stearns of the U.S.
District Court for the District of Massachusetts granted the
parties' joint motion for preliminary approval of class settlement
agreement.
Pursuant to Rule 23 of the Federal Rules of Civil Procedure, the
Judge provisionally certified a settlement class consisting of all
individuals who worked as commission sales employees at Sleepy's
stores in Massachusetts during the time period from Sept. 11, 2014
to Oct. 22, 2016.
He preliminarily finds and concludes that the requirements of Rule
23(a) and (b)(3) of the Federal Rules of Civil Procedure have been
met for settlement purposes. The Settlement Class Representatives
and James Livingstone and John Regan from The Employee Rights
Group, LLC (Class Counsel), will fairly and adequately protect the
interests of the Settlement Class.
The Judge approved, in form and content, the Notice of Proposed
Class Action Settlement.
Within 21 days, the Defendants will provide the Claims
Administrator, Optime Administration, LLC, a list of all Class
Members and their last known addresses, and the Parties will
provide the Claims Administrator a copy of the Settlement Notice
and Claim Form as approved by the Court.
Within 14 days, the Claims Administrator will send the Settlement
Notice, Optout Form, and Objection Form approved by the Court to
all Class Members, via First Class U.S. mail, using the most
current mailing addresses presently available to the Defendants.
If any Settlement Notice is returned to the Claims Administrator
without a forwarding address, the Claims Administrator will
undertake reasonable efforts to search for the correct address and
will promptly re-mail the Settlement Notices to any newly-found
addresses.
If any person contacts any of the parties before 45 days following
the date on which the Claims Administrator mails the Settlement
Notice to the Class Member, claiming that he or she should have
been sent a Settlement Notice and should be entitled to participate
in the Settlement, that person will be instructed to submit his or
her position in writing to the Plaintiffs' Counsel and the
Defendants' Counsel, together with any documents or other evidence
in support of such position.
The Counsel for the parties will be promptly notified of any
dispute and given access to any documents or other evidence that
any person submits in support of his or her position with respect
to the dispute. The Parties will then attempt to resolve the
dispute.
A Final Approval Hearing is scheduled for Dec. 18, 2019; at 2:00
p.m.
A full-text copy of the Court's July 31, 2019 Order is available at
https://is.gd/eLl149 from Leagle.com.
Laurita Sullivan, on behalf of themselves and all others similarly
situated & Carlos Bryant, on behalf of themselves and all others
similarly situated, Plaintiffs, represented by James D.
Livingstone, The Employee Rights Group, LLC & John P. Regan, Jr.,
The Employee Rights Group, LLC.
Sleepy's LLC & Mattress Firm, Inc., Defendants, represented by
Diane M. Saunders -- diane.saunders@ogletree.com -- Ogletree
Deakins Nash Smoak & Stewart, P.C..
STEAM GENERATING: Miller Seeks Overtime Wages for Employees
-----------------------------------------------------------
PAM MILLER, Individually and For Others Similarly Situated, the
Plaintiff, vs. THE STEAM GENERATING TEAM, LLC, the Defendant, Case
No. 3:19-cv-429 (W.D.N.C., Sept. 3, 2019), seeks to recover unpaid
overtime wages and other damages from Defendant under the Fair
Labor Standards Act.
Miller and the Putative Class Members regularly work more than 40
hours a week. But SGT classifies Miller and the other workers like
her as independent contractors and pays them the same hourly rate
for all hours worked, including those in excess of 40 hours in a
single workweek (straight time for overtime). SGT's "straight time
for overtime" pay plan violates the overtime requirements of the
FLSA.
Miller was employed by SGT from approximately June 2016 until April
2017 and regularly worked in excess of 40 hours a week without
receiving overtime pay.
SGT provides various industrial replacement services to the nuclear
industry, including nuclear construction services, fuel,
engineering, and heavy components for nuclear power plants across
the United States.[BN]
Attorneys for the Plaintiff are:
Tamara L. Huckert, Esq.
Christopher Strianese, Esq.
STRIANESE HUCKERT LLP
3501 Monroe Rd.
Charlotte, NC 28205
Telephone: 704 966-2101
E-mail: chris@strilaw.com
tamara@strilaw.com
- and -
Michael A. Josephson, Esq.
Andrew W. Dunlap, Esq.
Taylor A. Jones, Esq.
JOSEPHSON DUNLAP LLP
11 Greenway Plaza, Suite 3050
Houston, TX 77046
Telephone: 713-352-1100
Facsimile: 713-352-3300
E-mail: mjosephson@mybackwages.com
adunlap@mybackwages.com
tjones@mybackwages.com
- and -
Richard J. (Rex) Burch, Esq.
BRUCKNER BURCH PLLC
8 Greenway Plaza, Suite 1500
Houston, TX 77046
Telephone: 713-877-8788
Facsimile: 713-877-8065
E-mail rburch@brucknerburch.com
TACOMA, WA: Class Cert. Bid in Jackson Denied Without Prejudice
---------------------------------------------------------------
In the case, KYNTREL JACKSON, also known as SINISTER DAEVAYASNAHAM
GOD, et al., Plaintiffs, v. US BANKRUPTCY COURT CLERK FOR THE CITY
OF TACOMA, et al., Defendants, Case No. 3:19-cv-5475-RBL-JRC (W.D.
Wash.), Judge Ronald B. Leighton of the U.S. District Court for the
Western District of Washington, Tacoma, denied without prejudice
the Plaintiffs' motion for class certification.
Judge Leighton has reviewed the Report and Recommendation of
Magistrate Judge J. Richard Creatura, any objections to the Report
and Recommendation, and the remaining record. He adopted the
Report and Recommendation, and denied without prejudice the
Plaintiffs' request that the matter be certified as a class action.
Further, claims other than those brought by Plaintiff Jackson will
be severed from the case with cause number 3:19-cv-5475.
The Judge dismissed without prejudice the claims of Daniel Simms,
Blake Suess, Bert Holmes, and John Fecteau from cause number
3:19-cv-5475 without prejudice.
The Clerk will open individual cases, under four new cause numbers,
for Simms, Suess, Holmes, and Fecteau. In each case, the Clerk
will docket the Order and the relevant individual's in forma
pauperis application from the matter. If there is no in forma
pauperis application, the Clerk will docket the deficiency letter
directing the relevant individual to file such an application or to
pay the filing fee.
Plaintiff Jackson will file a new proposed complaint in support of
his application to proceed in forma pauperis in the matter within
30 days of the date of the Order. The new proposed complaint must
include only claims, arguments, and the Defendants specific to
Plaintiff Jackson. The Clerk will renote plaintiff Jackson's in
forma pauperis application for 30 days from the date of the Order.
Plaintiff Simms and Mr. Suess and Mr. Fecteau will each file new
proposed complaints in support of their individual in forma
pauperis applications, under the new cause numbers assigned to
them, within 30 days of the date of the Order. Each proposed
complaint must include only claims, arguments, and defendants
specific to each individual in that action.
If Mr. Holmes wishes to proceed with his claims, he will comply
with the Clerk's direction to either pay the filing fee or submit
an application to proceed in forma pauperis, under the new cause
number assigned to him.
The Clerk will assign the four new cases to the undersigned and
will refer them to Magistrate Judge Creatura.
A full-text copy of the Court's July 31, 2019 Order is available at
https://is.gd/gjlOr9 from Leagle.com.
Kyntrel Jackson, also known as, Plaintiff, pro se.
Daniel Jerimiah Simms, Plaintiff, pro se.
Blake Suess, Plaintiff, pro se.
Bert Holmes, Plaintiff, pro se.
John Alexander Fecteau, Plaintiff, pro se.
TARGET CORPORATION: Greenberg Appeals N.D. Cal. Ruling to 9th Cir.
------------------------------------------------------------------
Plaintiff Todd Greenberg filed an appeal from a Court ruling in the
lawsuit entitled Todd Greenberg v. Target Corporation, et al., Case
No. 3:17-cv-01862-RS, in the U.S. District Court for the Northern
District of California, San Francisco.
As reported in the Class Action Reporter on Aug. 6, 2019, the
District Court issued an order rescheduling hearing on the
Defendant's motion to dismiss in the case.
The Plaintiff previously sought certification of two classes:
1. 9-State Class with laws similar to California's UCL or
California-Only UCL Class:
"all California consumers who, within the applicable
statute of limitations period until the date notice is
disseminated, purchased Biotin Products"; and
2. California-Only CLRA Class:
"all California consumers who, within the applicable
statute of limitations period until the date notice is
disseminated, purchased Biotin Products."
The appellate case is captioned as Todd Greenberg v. Target
Corporation, et al., Case No. 19-16699, in the United States Court
of Appeals for the Ninth Circuit.
The briefing schedule in the Appellate Case is set as follows:
-- Transcript must be ordered by September 30, 2019;
-- Transcript is due on October 29, 2019;
-- Appellant Todd Greenberg's opening brief is due on
December 9, 2019;
-- Appellees International Vitamin Corporation, Perrigo
Company of South Carolina, Inc. and Target Corporation's
answering brief is due on January 7, 2020; and
-- Appellant's optional reply brief is due 21 days after
service of the answering brief.[BN]
Plaintiff-Appellant TODD GREENBERG, On Behalf of Himself and All
Others Similarly Situated is represented by:
Manfred P. Muecke, Esq.
Patricia N. Syverson, Esq.
BONNETT FAIRBOURN FRIEDMAN & BALINT PC
600 West Broadway, Suite 900
San Diego, CA 92101
Telephone: (619) 756-6978
E-mail: mmuecke@bffb.com
psyverson@bffb.com
- and -
Elaine A. Ryan, Esq.
BONNETT FAIRBOURN FRIEDMAN & BALINT, PC
2325 E. Camelback Road, Suite 300
Phoenix, AZ 85016
Telephone: (602) 274-1100
E-mail: eryan@bffb.com
- and -
Stewart M. Weltman, Esq.
SIPRUT, PC
17 North State Street, Suite 1600
Chicago, IL 60602
Telephone: (312) 236-0000
E-mail: sweltman@siprut.com
Defendant-Appellee TARGET CORPORATION, a Minnesota Corporation,
INTERNATIONAL VITAMIN CORPORATION, a New Jersey Corporation, and
PERRIGO COMPANY OF SOUTH CAROLINA, INC. are represented by:
Samuel G. Brooks, Esq.
William P. Cole, Esq.
Matthew R. Orr, Esq.
CALL & JENSEN, APC
610 Newport Center Drive, Suite 700
Newport Beach, CA 92660
Telephone: (949) 717-3000
E-mail: sbrooks@calljensen.com
wcole@calljensen.com
morr@calljensen.com
TD BANK: Power Sues over Unauthorized Recordings of Calls
---------------------------------------------------------
MATTHEW POWER, individually and on behalf of others, the Plaintiff,
v. TD BANK USA, N.A., the Defendant, Case No. 19CV1665 CAB MDD
(Cal. Super., Sept. 3, 2019), seeks to recover damages and
injunctive relief from the Defendant for unauthorized recordings of
conversations with Plaintiff and Class Members without any
notification nor warning to Plaintiff or Class Members in violation
of the California Invasion of Privacy Act.
The Plaintiff was personally affected by Defendant's because
Plaintiff was shocked, upset and angry that Defendant recorded its
telephone, the lawsuit says.[BN]
Attorneys for the Plaintiff are:
Yana A. Hart, Esq.
Abbas Kazerounian, Esq.
KAZEROUNI LAW GROUP, APC
2221 Camino Del Rio South, Suite 101
San Diego, CA 92108
Telephone: (619) 233-7770
Facsimile: (619) 297-1022
E-mail: yana@kazlg.com
ak@kazlg.com
- and -
Daniel G. Shay, Esq.
LAW OFFICE OF DANIEL G. SHAY
2221 Camino Del Rio South, Suite 308
San Diego, CA 92108
Telephone: (619) 222-7429
Facsimile: (866) 431-3292
E-mail: danielshay@tcpafdcpa.com
TOP FLITE: Fabricant Moves for Certification of Four Classes
------------------------------------------------------------
The Plaintiff in the lawsuit captioned TERRY D. FABRICANT,
individually and as the representative of a class of
similarly-situated persons v. TOP FLITE FINANCIAL, INC., a Michigan
corporation, Case No. 2:19-cv-12558-LJM-SDD (E.D. Mich.), filed
with the Court a "placeholder" motion for class certification.
Plaintiff Terry D. Fabricant files this "placeholder" motion for
class certification in order to prevent against a "buy-off"
attempt, a tactic class-action defendants sometimes use to attempt
to prevent a case from proceeding to a decision on class
certification by attempting to "moot" the named plaintiff's claims
by tendering the plaintiff individual (but not classwide) relief,
according to the Motion. The Plaintiff asks the Court to allow
this "placeholder" motion for class certification to remain pending
to protect against any alternative pick-off attempt following the
Supreme Court's decision in Campbell-Ewald Co. v. Gomez, 136 S. Ct.
663, 672 (2016).
The issue presented is whether the Court should allow the Plaintiff
to keep a motion for class certification on file in order to
protect against any attempt by the Defendant to "pick-off" its
individual claims in order to "moot" the case before the Court can
decide the issue of class certification.
The Plaintiff proposes these class definitions:
* Count I:
All persons in the United States who received a call made by
or on behalf of Defendant to the individual's cellular
telephone through the use of an automatic telephone dialing
system, or any other device having the capacity to dial
numbers without human intervention, from four years prior to
the date of filing of this Complaint until the date
Defendant's conduct ceases, where the call(s) were made
without prior express written consent from the recipient to
make such call;
* Count II:
All persons whose telephone numbers were listed on the Do
Not Call Registry, and to whom, during the four years prior
to the filing of this Complaint, more than one call within
any twelve-month period was placed by or at the direction
of, to promote the sale of Defendant's services;
* Count III:
All persons or entities who, within the four years prior to
the filing of the instant Complaint, received a
non-emergency, unauthorized text message to their cellular
telephones from Defendant through the use of an automatic
dialing system and who did not provide prior express consent
and/or prior express written consent to receive such text
messages; and
* Count IV:
All California residents who, at any time during one year
preceding the original filing of this Complaint, used a
cellular device or cordless telephone located in California
to call or receive calls which were recorded and/or
monitored by Defendant surreptitiously or without
disclosure.[CC]
The Plaintiff is represented by:
Ryan M. Kelly, Esq.
ANDERSON + WANCA
3701 Algonquin Road, Suite 500
Rolling Meadows, IL 60008
Telephone: (847) 368-1500
Facsimile: (847) 368-1501
E-mail: rkelly@andersonwanca.com
TORO COMPANY: Faces Brooks Suit Over Defective Lawn Mowers
----------------------------------------------------------
WILLIAM BROOKS, individually and on behalf of all others similarly
situated, Plaintiff v. THE TORO COMPANY; and TORO INTERNATIONAL,
INC., Defendants, Case No. 0:19-cv-02345 NEB-ECW (D. Minn., Aug.
26, 2019) is an action against the Defendants arising from their
manufacture, distribution and sale of defective TimeCutter lawn
mowers.
According to the complaint, the Defendants represents that they
emphasize quality and innovation in the products, customer
service, manufacturing, and marketing. The Defendants also
represents that they strives to provide well-built, dependable
products supported by its vast service network, and that it has
"rigorous product safety standards" and that it continually works
"to improve the safety and reliability of their products." Despite
these representations, the Defendants designed, manufactured,
distributed, marketed and sold its TimeCutter driving lawn mowers
("Lawn Mowers") that present a serious safety risk to the
TimeCutter Lawn Mower consumer, and an accompanying risk of
property loss. The Defendants are well-aware of a fire hazard that
exists with respect to its Lawn Mowers.
The Defendants instituted a recall of their 2015 TimeCutter Mowers
due to the fire risk that it exposed to its purchasers. That recall
is wholly inadequate in that it does not alone sufficiently provide
reasonable notice to the Defendants' purchasers of its Lawn Mowers
of the safety hazards they present. The recall is also further
inadequate because it does not include 2014 TimeCutter Lawn Mowers,
which were purchased by the Plaintiff and which caught fire.
The Toro Company designs, manufactures, and markets a range of turf
equipment. The Company's products include professional turf
maintenance equipment, turf and agricultural irrigation systems,
landscaping equipment, and residential yard products. [BN]
The Plaintiff is represented by:
Daniel E. Gustafson, Esq.
Karla M. Gluek, Esq.
Amanda M. Williams, Esq.
GUSTAFSON GLUEK PLLC
120 South 6th Street, Suite 2600
Minneapolis, MN 54402
Telephone: (612) 333-8844
E-mail: dgustafson@gustafsongluek.com
kgluek@gustafsongluek.com
awilliams@gustafsongluek.com
- and -
Richard M. Paul III, Esq.
Ashlea G. Schwarz, Esq.
Sean R. Cooper, Esq.
PAUL LLP
601 Walnut Street, Suite 300
Kansas City, MO 64106
Telephone: (816) 984-8100
E-mail: Rick@PaulLLP.com
Ashlea@PaulLLP.com
Sean@PaulLLP.com
UBER TECH: Irving Securities Suit Dismissed Without Leave to Amend
------------------------------------------------------------------
In the case, IRVING FIREMEN'S RELIEF & RETIREMENT FUND, Plaintiff,
v. UBER TECHNOLOGIES, et al., Defendants, Case No. 17-cv-05558-HSG
(N.D. Cal.), Judge Haywood S. Gilliam, Jr. of the U.S. District
Court for the Northern District of California granted the
Defendants' motions to dismiss the operative complaint without
leave to amend.
Plaintiff Irving Firemen's Relief & Retirement Fund filed the
putative class action on Sept. 26, 2017, asserting one violation of
California Corporations Code Sections 25400(d) and 25500 against
Uber and Travis Kalanick, Uber's former CEO.
On Dec. 22, 2017, the Plaintiff filed a first amended complaint,
asserting the same statutory violations. The Court dismissed the
first amended complaint with leave to amend after which the
Plaintiff filed a second amended complaint, reasserting the same
statutory violation.
Pending before the Court are the Defendants' separately filed
motions to dismiss the operative complaint, briefing for which is
complete.
The Plaintiff defines the putative class to include all persons or
entities who, directly or indirectly, purchased or committed to
purchase (and subsequently closed a binding commitment to purchase)
an interest in Uber securities sold in the Company's Series D, E,
F, or G offerings. As was true of prior iterations of the
complaint, the gravamen of the operative complaint is that Uber and
Kalanick disseminated false and misleading statements and omissions
for the purpose of inducing the purchase of billions of dollars of
such Uber securities.
The Plaintiff again divides the Defendants' allegedly fraudulent
statements into six categories: (1) growth; (2) legal compliance;
(3) competition; (4) ethical culture; (5) self-driving car
technologies; and (6) data security. The Plaintiff claims that the
value of Uber securities declined as Uber's various corporate
scandals came to light, and the class members consequently lost
billions of dollars. And as was the case with respect to the first
amended complaint, the Defendants contend that the challenged
statements are inactionable. Again, Kalanick's motion is limited
to whether the Plaintiff adequately alleges a misleading statement
or omission. And again, Uber argues not only that the Plaintiff
fails to adequately plead cognizable false or misleading statements
and omissions, but also that the Plaintiff does not sufficiently
plead loss causation, injury, and scienter.
The second amended complaint adds little to the first amended
complaint other than including statements contained in a
confidential offering memorandum that was circulated to prospective
investors in connection with the Series G offering. And as to these
statements, a new threshold matter exists: the Defendants contend
that statements in the New Riders Offering Memorandum are
inactionable because, among other reasons, Uber did not draft the
offering memorandum and thus did not "make" any statements therein.
But the Court need not resolve whether these statements are fairly
attributable to Uber because the statements are not actionable for
other reasons.
Judge Gilliam finds that the Plaintiff has failed to plead (1)
materially false or misleading statements and omissions, and (2)
loss causation. The Judge finds the statements that "warnings of
the risks of further data breaches," and "warnings about the risk
of negative publicity as a result of data privacy breaches" in no
way represented to investors what steps or measures Uber may have
taken to correct past weaknesses, such that its failure to discuss
shortcomings were material omissions. Based on this lack of
connection, the Judge finds the Plaintiff again fails to plead the
requisite link to suggest the alleged representations were false or
misleading.
He also finds that the Plaintiff's pleaded facts demonstrate that
at least several of those had little or no effect. And the
Plaintiff's contention that mutual funds merely "revalue their
investments as circumstances require and information permits," is
precisely the point. These funds—according to the Plaintiff --
had certain purportedly relevant information -- again, according to
Plaintiff—and did not revalue their investment. Accordingly, the
Judge holds that the Plaintiff has again failed to plead loss
causation.
And because the Plaintiff has previously been granted leave to
amend and has subsequently failed to add the requisite
particularity, the Judge finds that leave to amend is unwarranted.
Accordingly, Judge Gilliam granted the Defendants' motions to
dismiss without leave to amend. The clerk is directed to close the
file.
A full-text copy of the Court's July 31, 2019 Order is available at
https://is.gd/VKrCtd from Leagle.com.
Irving Firemen's Relief & Retirement Fund, Plaintiff, represented
by Angel Puimei Lau , Robbins Geller Rudman Dowd LLP, Brian Edward
Cochran -- bcochran@rgrdlaw.com -- Robbins Geller, et al., Jason
A.
Forge -- jforge@rgrdlaw.com -- Robbins Geller Rudman and Dowd LLP,
Jeffrey James Stein -- jstein@rgrdlaw.com -- Robbins Geller Rudman
and Dowd LLP, Luke O. Brooks -- lukeb@rgrdlaw.com -- Robbins
Geller
Rudman & Dowd LLP, Shawn A. Williams -- shawnw@rgrdlaw.com --
Robbins Geller Rudman & Dowd LLP, Darryl James Alvarado --
dalvarado@rgrdlaw.com -- Robbins Geller Rudman Dowd LLP, Erika
Limpin Oliver -- eoliver@rgrdlaw.com -- Robbins Geller Rudman Dowd
LLP, Lucas F. Olts -- lolts@rgrdlaw.com -- Robbins Geller Rudman &
Dowd LLP & Darren Jay Robbins -- darrenr@rgrdlaw.com -- Robbins
Geller Rudman & Dowd LLP.
Uber Technologies, Defendant, represented by Alvin Matthew Ashley
-- mashley@irell.com -- Irell & Manella LLP, Andra Barmash Greene
-- agreene@irell.com -- Irell & Manella LLP, David Siegel --
dsiegel@irell.com -- Irell & Manella LLP, Michael David Harbour --
mharbour@irell.com -- Irell and Manella & Nathaniel H. Lipanovich
-- nlipanovich@irell.com -- Irell & Manella LLP.
Travis Kalanick, Defendant, represented by James Neil Kramer,
Orrick, Herrington & Sutcliffe LLP, Joseph G. Petrosinelli,
Williams and Connolly LLP, Kenneth Jerome Brown, Williams and
Connolly LLP & Walter F. Brown, Orrick Herrington & Suutcliffe
LLP.
New Riders LP & Morgan Stanley Investment Management Inc.,
Miscellaneouss, represented by James Glenn Kreissman, Simpson
Thacher & Bartlett LLP & Stephen Patrick Blake, Simpson Thacher
Bartlett LLP.
UNION PACIFIC: Missouri Court Narrows Claims in McCullen Suit
-------------------------------------------------------------
In the case, JERAMIE A. McCULLEN, o/b/o himself and a class of
others similarly situated, Plaintiff, v. UNION PACIFIC RAILROAD
COMPANY, Defendant, Case No. 19-00347-CV-W-ODS (W.D. Mo.), Judge
Ortrie D. Smith of the U.S. District Court for the Western District
of Missouri, Western Division, granted in part and denied in part
the Defendant's Motion to Partially Dismiss Plaintiff's Amended
Petition for Damages.
In April 2019, the Plaintiff filed a putative class action against
Defendant Union Pacific. In his Amended Petition for Damages, the
Plaintiff alleges the Defendant violated the Missouri Human Rights
Act ("MHRA"). He claims he and others similarly situated sought
employment with the Defendant, they were offered conditional
employment pending a pre-employment physical, and in at least some
instances, they passed the pre-employment physical. However, the
applicants' conditional offers of employment were rescinded because
they had physical or mental impairments, Defendant regarded them as
having impairments, and/or the applicants' medical records
indicated they had impairments.
In May 2019, the Defendant removed the matter to the Court. The
Defendant now moves to dismiss the Plaintiff's failure to
accommodate, and also moves to dismiss the Plaintiff's class
allegations, or alternatively, dismiss class claims accruing before
Jan. 6, 2018, due to the Plaintiff's failure to administratively
exhaust said claims.
Judge Smith has carefully reviewed and considered the Plaintiff's
Amended Petition and finds it contains sufficient facts that, if
accepted as true, state a plausible class action claim against the
Defendant, and the Plaintiff has put the Defendant on notice of a
plausible class claim. Furthermore, he hesitates to foreclose the
possibility of class-wide relief at the pleading stage. Instead,
the Plaintiff should be given the opportunity to conduct discovery
on class certification issues. The Court and other courts have
reached similar conclusions. For the foregoing reasons, the Judge
denied the Defendant's motion to dismiss the Plaintiff's class
allegations.
The parties agree a plaintiff filing suit under the MHRA must
exhaust his or her administrative remedies. To that end, a charge
of discrimination must be filed with the Missouri Commission on
Human Rights ("MCHR") within 180 days of the alleged discriminatory
act. The Plaintiff filed his charge of discrimination with the
MCHR on July 5, 2018. The Defendant contends the Plaintiff's class
allegations accruing before Jan. 6, 2018 (180 days before the
Plaintiff filed his charge of discrimination) are time barred and
must be dismissed. In response to the Defendant's motion, the
Plaintiff concedes only those class allegations accruing on or
after Jan. 6, 2018 are actionable. Pursuant to the Plaintiff's
concession, the Judge granted the Defendant's motion to dismiss,
and dismissed the class allegations accruing before Jan. 6, 2018.
The Plaintiff alleges two counts in this lawsuit. Both counts
allege the Defendant discriminated against him on the basis of his
disability in violation of the MHRA. In Count I, the Plaintiff
alleges the Defendant failed to provide a reasonable accommodation.
In Count II, he alleges it rescinded its offer of employment.
The Defendant moves to dismiss Count I, arguing the MHRA does not
recognize failure to accommodate as a separate form of
discrimination. The Plaintiff argues Count I sufficiently states a
claim of disability discrimination under the MHRA, and he should be
permitted to plead both failure to accommodate and rescission of
employment offer as theories of disability discrimination.
The Judge has not located legal authority requiring the Plaintiff
to allege multiple ways of proving discrimination in one count or
separate counts. The Plaintiff chose the latter. Whether the
Plaintiff will request or be permitted to submit one or both ways
of proving disability discrimination to the jury remains a topic
for another day. At this juncture, the Judge holds that the
Plaintiff's disability discrimination claim, which he intends to
prove with the Defendant's alleged failure to accommodate (as well
as the Defendant's decision to rescind the offer of employment),
has been sufficiently pleaded and will not be dismissed.
Accordingly, he denied the Defendant's motion to dismiss Count I.
For the foregoing reasons, Judge Smith granted in part the
Defendant's motion to dismiss in that any class allegations
accruing before Jan. 6, 2018, are time barred and dismissed, but
denied the Defendant's motion to dismiss in all other respects.
A full-text copy of the Court's July 31, 2019 Order is available at
https://is.gd/PqCRpx from Leagle.com.
Jeramie A. McCullen, on behalf of himself and a class of others
similarly situated, Plaintiff, represented by Joshua P. Wunderlich
-- j.wunderlich@cornerstonefirm.com -- Cornerstone Law Firm.
Union Pacific Railroad Company, Defendant, represented by Katherine
Rhoten -- krhoten@constangy.com -- Constangy, Brooks, Smith &
Prophete LLP & Robert L. Ortbals, Jr. -- rortbals@constangy.com --
Constangy, Brooks, Smith & Prophete LLP.
UNITED STATES: Kluge Sues Over Unpaid Differential Pay Benefit
--------------------------------------------------------------
JOHN C. KLUGE for himself and THE PUTATIVE CLASS v. UNITED STATES
GOVERNMENT, Case No. 1:19-cv-02618 (D.D.C., Aug. 29, 2019), is
brought on behalf of similarly situated U.S. military reserve
personnel, who are also federal civilian employees, who volunteered
to serve the Nation in wartime only to be unlawfully deprived of a
differential pay benefit of employment found in 5 U.S.C. 5538.
The Congress passed the Differential Pay Law, and it was signed
into law, 10 years ago with effective date of January 28, 2009.
Congress intended with this Statute to provide the same employment
benefits that a large number of private sector, even state, local,
and foreign, employers provide to activated reservists covering the
difference when their military pay and allowances is less than
their civilian pay.
John Kluge is a resident of Fairfax, Virginia, and was formerly a
federal civilian employee at the U.S. Department of Homeland
Security. He is also a Commissioned Officer in the United States
Army Reserves. In 2008 and 2009, the Plaintiff was mobilized by
the Army pursuant to an order to Active Duty under 10 U.S.C.
1301(d). He volunteered for wartime duty. As such, he contends,
he should have received differential pay, as his civilian
compensation was more than his military compensation during this
period.
The Defendant is the United States of America, a sovereign. The
Defendant is responsible for the actions of its various
departments, agencies, and offices, such as the Office of Personnel
Management and DHS. OPM is an executive branch office and DHS is
an executive department.[BN]
The Plaintiff is represented by:
James Renne, Esq.
THE MILITARY LAW PROJECT
4201 Wilson Blvd., Suite 110521
Arlington, VA 22203
US SECURITY: Ct. Certifies 2 Classes of Guards in Langston Suit
----------------------------------------------------------------
The Hon. Patrick R. Wyrick conditionally certified two classes in
the lawsuit styled PAUL LANGSTON, on behalf of himself and others
similarly situated v. U.S. SECURITY ASSOCIATES, INC., Case No.
5:18-cv-00868-PRW (W.D. Okla.).
The classes are defined as:
(1) A class consisting of all current and former
non-supervisor hourly security guard employees employed by
Defendant who at any time in the period measured three
years prior to the date of this order to the present (1)
worked forty hours or more in a workweek, (2) relieved a
preceding shift and/or was relieved by a subsequent shift,
(3) was required to arrive at work before his/her shift
began and/or to stay after his/her shift ended to perform
"pass on" duties and was not allowed to be clocked in
during this time outside his/her scheduled shift, (4) is
not subject to an arbitration agreement with Defendant,
and (5) did not exclusively work overlapping shifts; and
(2) A class consisting of all current and former supervisor
hourly security guard employees employed by Defendant who
at any time in the period measured three years prior to
the date of this order to the present (1) worked forty
hours or more in a workweek, (2) relieved a preceding
shift and/or was relieved by a subsequent shift, (3) was
required to arrive at work before his/her shift began
and/or to stay after his/her shift ended to perform "pass
on" duties and was not allowed to be clocked in during
this time outside his/her scheduled shift, (4) is not
subject to an arbitration agreement with Defendant, and
(5) did not exclusively work overlapping shifts.
The Court ruled that notice shall be sent to all present and former
Fair Labor Standards Act non-exempt employees of the Defendant, who
at any time during the last three years from the date of this order
worked over forty (40) hours in a workweek, including "pass on"
time. The Defendant shall provide within thirty (30) days of the
date of this order a roster of such present and former employees
that includes their full names, dates of employment, and all
contact information known by Defendant. This information shall be
provided to the Plaintiff in an easily accessible electronic format
(such as Excel or Word).
Judge Wyrick also ruled that the parties shall confer about the
contents of the notice to send to the potential classes and submit
a proposed notice to the Court for approval within thirty (30) days
of the date of this order. Upon court approval, the notice shall
be sent to the employees identified in (4) within ten (10) days of
that approval. The Plaintiff's counsel shall notify Defendant's
counsel of the date on which each notice is sent to each potential
class member.
Duplicate copies of the notice may be sent in the event new,
updated, or corrected contact information is found for one or more
employees, Judge Wyrick further ruled. The Plaintiff is granted
leave to amend the complaint to add Elisa Bohanan as a named
plaintiff to serve as the representative plaintiff of the
supervisor class, but denied leave to amend in all other respects,
as the need to amend is mooted by the conditional class
certification granted in this order.[CC]
WALMART INC: Thomas Seeks OK to Send Opt-in Notice to Prop. Class
-----------------------------------------------------------------
The Plaintiff in the lawsuit titled TANIELLE THOMAS, for herself
and all others similarly situated v. WALMART, INC., and SAM'S WEST,
INC., d/b/a SAM'S CLUB, Case No. 2:18-cv-04717-MMB (E.D. Pa.),
moves the Court to enter her proposed Order authorizing the
dissemination of a Court-approved Notice to:
all persons who have worked as a full-time, hourly-paid
employee in any position or department in the 18 Sam's Club
stores in the geographic market where Plaintiff worked
(including Delaware, Eastern Maryland, Southern New Jersey
and Eastern Pennsylvania) during the past three years under
the "opt-in" mechanism for collective actions provided by
the Fair Labor Standards Act.[CC]
The Plaintiff is represented by:
David J. Cohen, Esq.
STEPHAN ZOURAS LLP
604 Spruce Street
Philadelphia, PA 19106
Telephone: (215) 873-4836
E-mail: dcohen@stephanzouras.com
- and -
James B. Zouras, Esq.
STEPHAN ZOURAS LLP
100 North Riverside Plaza, Suite 2150
Chicago, IL 60606
Telephone: (312) 233-1550
E-mail: jzouras@stephanzouras.com
WASHINGTON: Court Orders Show Cause to Proceed IFP in Malone
------------------------------------------------------------
The United States District Court for the Western District of
Washington, Tacoma, issued an Order to Show Cause Regarding IFP
Application in the case captioned CALVIN MALONE, et al.,
Plaintiffs, v. ROBERT W. FERGUSON, et al., Defendants. Case No.
3:19-cv-05574 RJB-JRC. (W.D. Wash.).
Plaintiffs, who state that they are each civil detainees at the
Special Commitment Center ("SCC"), initiated this matter by filing
a proposed class action complaint but neither paid the filing fee
nor requested that each plaintiff be allowed to proceed in forma
pauperis.
Here, two of the plaintiffs who have filed IFP applications appear
to be able to pay the filing fee. Plaintiffs George Mitchell and
Richard Jackson appear to have sufficient funds to pay the filing
fee and would not qualify for IFP status. Although these plaintiffs
state that they require their savings upon release, this conclusory
statement is inadequate for the Court to disregard the amounts in
their savings accounts.
Moreover, the complaint that plaintiffs filed is a proposed class
action complaint, in which plaintiffs seek to proceed on behalf of
themselves and other SCC residents for alleged violations of
federal and state minimum wage laws. However, plaintiffs are pro se
and therefore cannot bring a class action lawsuit. This is because
by bringing a class action lawsuit without being represented by
counsel, plaintiffs would be representing the class members but it
is well-established that the privilege to proceed pro se does not
allow one to appear as an attorney for others.
The Court orders plaintiffs to show cause regarding plaintiff
Mitchell's and plaintiff Jackson's IFP applications and whether
they seek the appointment of counsel in this matter. Specifically,
plaintiffs must either pay the $400 filing fee to bring this action
or show cause why plaintiff Mitchell and plaintiff Jackson cannot
afford to pay the filing fee.
Moreover, if plaintiffs wish to proceed with this matter as a class
action which cannot proceed with pro se lead plaintiffs they must
either obtain counsel at their own expense or have this Court
appoint counsel to represent them, if they cannot afford counsel
and would otherwise qualify for the appointment of counsel. If
plaintiffs wish to request the appointment of counsel to represent
them, then they may file a motion for the appointment of counsel in
response to this show cause order.
A full-text copy of the District Court's August 27, 2019 Order is
available at https://tinyurl.com/y39fdrq8 from Leagle.com.
Calvin Malone, Plaintiff, pro se.
George O. Mitchell, Plaintiff, pro se.
Jonathan Parsons, Plaintiff, pro se.
Richard Jackson, Plaintiff, pro se.
James Turner, Plaintiff, pro se.
WHITMAN CONSULTING: Robertson Seeks OT Pay for Welding Inspectors
-----------------------------------------------------------------
ZACHARIAH ROBERTSON, Individually and For Others Similarly
Situated, the Plaintiff, vs. WHITMAN CONSULTING ORGANIZATION, INC.,
the Defendant, Case No. 1:19-cv-02508 (D. Colo., Sept. 3, 2019),
seeks to recover unpaid overtime wages and other damages from
Defendant under the Fair Labor Standards Act.
WhitCo pays Robertson and the other hourly workers like him a daily
per diem, which represents compensation that is primarily for the
benefit and convenience of WhitCo's hourly employees.
The lawsuit contends that the FLSA requires this type of
compensation to be included in the calculation of the workers'
regular rate of pay for overtime purposes. Because the per diem was
not used in calculating these workers' regular rate of pay,
WhitCo's hourly workers were not properly compensated at a rate of
one-and-one-half times their regular rate of pay for all hours
worked in excess of 40 hours in a single workweek.
WhitCo employed Robertson as a Welding Inspector during the
statutory time period until April 2018 and regularly worked in
excess of 40 hours a week without receiving overtime pay calculated
at the legal overtime rate.
WhitCo is a provider of Construction Management and Inspection
Services for the oil and gas industry.[BN]
Attorneys for the Plaintiff are:
Michael A. Josephson, Esq.
Andrew W. Dunlap, Esq.
Taylor A. Jones, Esq.
JOSEPHSON DUNLAP
11 Greenway Plaza, Suite 3050
Houston, TX 77046
Telephone: 713 352-1100
Facsimile: 713-352-3300
E-mail: mjosephson@mybackwages.com
adunlap@mybackwages.com
tjones@mybackwages.com
- and -
Richard J. (Rex) Burch, Esq.
BRUCKNER BURCH PLLC
8 Greenway Plaza, Suite 1500
Houston, TX 77046
Telephone: 713-877-8788
Facsimile: 713-877-8065
E-mail: rburch@brucknerburch.com
ZEBRA TECHNOLOGIES: Warren Police Suit Moved to N.D. Illinois
-------------------------------------------------------------
The case, CITY OF WARREN POLICE AND FIRE RETIREMENT SYSTEM,
Individually and on Behalf of All Others Similarly Situated, the
Plaintiff, vs. ZEBRA TECHNOLOGIES CORPORATION, ANDERS GUSTAFSSON
and MICHAEL C. SMILEY, the Defendants, Case No. 2:17-cv-04412
(Filed July 26, 2017), was transferred from the United States
District Court for the Eastern District of New York, to the United
States District Court for Northern District of Illinois (Chicago)
on Aug. 28, 2019. The Northern District of Illinois Court Clerk
assigned Case No. 1:19-cv-05872 to the proceeding.
The case is a securities class action on behalf of all persons who
purchased Zebra common stock between March 17, 2015 and May 9,
2016, inclusive, seeking to pursue remedies under the Securities
Exchange Act of 1934.[BN]
Attorneys for the Plaintiff are:
Alan I. Ellman, Esq.
LABATON SUCHAROW LLP
140 Broadway
New York, NY 10005
Telephone: (212) 907-0700
E-mail: aellman@labaton.com
- and -
David A. Rosenfeld, Esq.
Robert D. Gerson, Esq.
Samuel H Rudman, Esq.
ROBBINS GELLER RUDMAN & DOWD LLP
58 South Service Road, Suite 200
Melville, NY 11747
Telephone: (631) 367-7100
E-mail: drosenfeld@rgrdlaw.com
rgerson@grdlaw.com
srudman@rgrdlaw.com
Attorneys for the Defendants are:
Andrew W. Stern, Esq.
James Wallace Ducayet, Esq.
Walter C. Carlson, Esq.
SIDLEY AUSTIN LLP
787 Seventh Avenue
New York, NY 10019
Telephone: (212) 839-5397
E-mail: astern@sidley.com
jducayet@sidley.com
wcarlson@sidley.com
Attorneys for Movant Gerardo Birkenfeld are:
Kim E. Miller, Esq.
KAHN SWICK & FOTI, LLC
500 5th Ave., Suite 1810
New York, NY 10110
Telephone: (212) 696-3730
E-mail: kim.miller@ksfcounsel.com
Attorneys for Movant Steve Sylvander are:
Adam M. Apton, Esq.
Nicholas Porritt, Esq.
LEVI & KORSINSKY, LLP
1101 30th Street NW, Suite 115
Washington, DC 22201
Telephone: (202) 524-4290
E-mail: aapton@zlk.com
nporritt@zlk.com
*********
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.
Toledo, Christopher G. Patalinghug, and Peter A. Chapman, Editors.
Copyright 2019. All rights reserved. ISSN 1525-2272.
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