/raid1/www/Hosts/bankrupt/CAR_Public/191111.mbx
C L A S S A C T I O N R E P O R T E R
Monday, November 11, 2019, Vol. 21, No. 225
Headlines
3M CO: King Class Action in Alabama Still Ongoing
3M CO: St. John Class Action in Alabama Still Ongoing
3M CO: Stover Class Action Remains Stayed
3M CO: Water Contamination Suit Remains Stayed in Alabama Court
ABB OPTICAL: Lewis Wage & Hour Suit Remanded to Alameda Sup. Court
ABBVIE INC: Walleye Appeals Dismissal of Amended Suit to 7th Cir.
ABIOMED INC: Faces Barry Suit over 26% Drop in Share Price
ALIBABA: $250MM Deal in 2015 Consumer Suit Gets Final Approval
ALTERRA AMERICA: 5th Cir. Upholds Remand of Cobalt Insurance Suit
APPLE INC: $6.6 Million Settlement Over iPHone 4 Glitch Approved
APPLE INC: Faces Class Action in Illinois Over Siri Voiceprints
APPLE INC: Faces New iPhone Throttling Class Action in California
AQA: May Face Class Action Following Re-Marking Blunder
AURATE LLC: Crosson Files ADA Suit in E.D. New York
AUTOLIV INC: Insurer's Antitrust Lawsuit Ongoing
AVENUE STORES: Has Made Unsolicited Calls, Bicana Suit Claims
AVON PRODUCTS: Proxy Statement Misleading, Kent Says
BACKYARD PRODUCTS: No Arbitration in Barksdale Suit, Court Orders
BALTIMORE, MD: Borkowski Has Until Dec. 3 to File 3rd Amended Suit
BARNES & NOBLE: Thorne Alleges Violation under ADA
BEA PROPERTIES: Underpays Laborers, Coello Suit Alleges
BOEING COMPANY: Pilot M Sues Over Lost Wages & Emotional Distress
BOIE LLC: Crosson Files ADA Suit in E.D. New York
BOSTON PROPER: Guglielmo Asserts Breach of Disabilities Act
BOSTON SCIENTIFIC: Bid to Certify Classes in Sandoe TCPA Suit Nixed
BUFFALO EXCHANGE: Wu Files ADA Suit in E.D. New York
BUILD-A-BEAR: Website Not Accessible to Blind, Desalvo Alleges
CAPITAL ONE: Court Denies Stay Pending Appeal in McFarland Suit
CENTURY 21: Wu Files ADA Suit in E.D. New York
CHRYSLER GROUP: Class Certification Bid in Tomassini Underway
COLD STONE: Lopez Asserts Breach of Disabilities Act
COLONIAL FIRST: Maurice Blackburn Files "MySuper" Class Action
COMPLETE BUSINESS: Ct. Allows Filing of 2nd Amended Fleetwood Suit
CONSTANT CONTACT: Warner Sues Over Illegal, Unsolicited Marketing
CONVERSE INC: Delacruz Sues Over Blind-Inaccessible Gift Cards
DIRECTV LLC: Violates Fair Credit Reporting Act, Nash Suit Says
DYSON DIRECT: Tidwell Seeks OT Wages for Hourly-Rate Employees
ELI LILLY: 7th Cir. Appeal in Medical Mutual of Ohio Suit Pending
ELI LILLY: Continues to Defend Suits over Insulin Pricing
EQUIFAX INC: Consolidated Securities Class Suit in Georgia Ongoing
EQUIFAX INC: Settlement in Thomas Class Suit Wins Final Approval
EQUILON ENTERPRISES: Not the Employer of Henderson, Cal. App. Holds
ESSEX PROPERTY: Bevan Sues over Improper Tenant Charges
EXPEDITORS INT'L: Wroblewski Sues Over Collection of Biometrics
FACEBOOK INC: Seeks Supreme Court Review of Ruling in Duguid Suit
FARMERS GROUP: Tex. App. Remands Geter Suit to Trial Court
FIRST HAWAIIAN: Settlement in Overdraft Fee Suit Wins Final Okay
FMR LLC: Jury Trial Not Required in Moitoso Suit, Court Opines
G4S SECURE: Pitts Seeks to Certify FLSA Class
GEICO INSURANCE: Court Narrows Docs Production in Prudhomme Suit
GNC HOLDINGS: Appeal from Workweek Suit Judgment Still Pending
GNC HOLDINGS: Trial in Naranjo Class Suit Set for January 2020
GREENLAND ACQUISITION: Wheby Suit Dismissed Following MOU
GRIFFITH FOODS: Terry Sues Over Unlawful Use of Biometric Data
GUARDIAN LIFE: Gloss Seeks Overtime Pay for Field Sales Reps
HEALTHPLUS SURGERY: Judge Allows NJ Class Action to Proceed
HEARTLAND EXPRESS: Fails to Give Proper Rest Period, Freitas Says
HOUSTON, TX: Averts Class Suit Over Untested Sexual Assault Kits
HYVEE: Chimicles Schwartz Files Data Breach Class Action
ILLINI PRECAST: Jimenez Wants to Collect Unpaid Overtime Wages
IMAGE INT'L: Class Settlement in Hodge Suit Gets Final Approval
INSTAWARES HOLDING: Guglielmo Asserts Breach of ADA in New York
INTEL CORP: Hearing This Month on Motion to Stay
INTEL CORP: Settlement in McFee Acquisition Suit Wins Final Okay
JILLIAN MICHAELS: Court Rules on Class Certification Bid
JOHNSON & JOHNSON: Continues to Defend Talcum-Powder Lawsuits
JOHNSON & JOHNSON: Court Dismisses Enriquez Opioid Lawsuit
JOINT UNDERWRITING: Court Dismisses Ronda RICO Suit
JUUL LABS: Rochester Sues Over Underage Nicotine/Vaping Addiction
KRAFT HEINZ: Hedick & Iron Workers Securities Suits Consolidated
LINEAGE CELL: Faces Ross Class Action in Delaware Chancery Court
M-I LLC: Bid to Recognize Green as Party in Coder FLSA Suit Denied
MANTEI & ASSOCIATES: Court Denies Remand of Black Securities Suit
MARISCOS EL PUERTO: Faces Gutierrez Wage and Hour Suit in Nevada
MCCABE WEISBERG: Violates Fair Debt Collection Act, Del Rio Says
MDL 14-2551: Court Dismisses Todd Harvey's Claims in NHL Suit
MDL 2841: Court Narrows Claims in Monat Hair Care Products Suit
MDL 2915: Wise Suit Over Capital One Data Breach Consolidated
MICHAEL A. DEMAYO: Hatch, et al Seek to Certify Class
NATIONAL PRESCRIPTION: Williamsburg City to Join Opioid Lawsuit
NCAA: Cole Sues Over Disregard for Health of Student-Athletes
NORTHSTAR MEMORIAL: $2.2M Deal in Uschold Suit Gets Prelim. OK
NV NUTRITION: Falsely Markets Nutriar Vaping Pens, Hauer Alleges
OVERSTOCK.COM INC: Crutchfield Sues over Drop in Share Price
PALM BEACH COUNTY: $390K in Attorneys Fees Awarded in Bradshaw Suit
PATRIOT WELL: Carr, et al. Seek to Certify Two Classes
PAYPAL HOLDINGS: Dismissal of Sgarlata Class Suit Under Appeal
PEI WEI: Faces Sexual Harassment Class Action in Arkansas
PINES MAINTENANCE: Madrid Seeks to Recover Unpaid Overtime Wages
PIONEER CREDIT: Clayton Sues Over TCPA Violation
PIVOTAL SOFTWARE: Being Sold for Too Little to VMware, Shan Says
PNC MERCHANT: Claims in Amended Consolidated Healing Suit Narrowed
POCATELLO/CHUBBUCK SD 25: Zeyen Class Certification Denial Affirmed
PR.BUSINESS LLC: Faces Murphy TCPA Suit Over Unwanted Robocalls
PRUDENTIAL INSURANCE: Cho Sues Over Breaches of Fiduciary Duty
PURE DEBT: Order on Evidence Preservation in Boehm Suit Entered
R&R EXPRESS: Class of Logistics Coordinators Certified in Rood Suit
RANDSTAD PROFESSIONALS: Mennucci Seeks OT Pay for Recruiters
RIVEREDGE HOSPITAL: Gresham Sues Over Illegal Use of Biometrics
ROCK ENTERPRISES: Goncalves Sues Over Unpaid Overtime Wages
SAN GABRIEL: Cal. App. Flips Class Certification Denial in Gonzales
SECURED LAND: Sued by Van Gestel Over Improperly Charged Fees
SEMI-TROPIC COOPERATIVE: Improperly Pays Workers, Martinez Claims
STATE FARM LIFE: Whitman Files Class Suit in Washington
SUTTER HEALTH: Settles Antitrust Class Action
SYNEOS HEALTH: Staff Promotions Policy Violates FMLA, Bigelow Says
TAKEDA PHARMA: Court Tosses ACTOS Direct Purchaser Antitrust Suit
TGI FRIDAYS: Calcano Alleges Violation under Disabilities Act
TILE SHOP: K-Bar Sues Board Over Breaches of Fiduciary Duties
TRANSOCEAN RESOURCES: Guglielmo Alleges Violation under ADA
TRANSWORLD SYSTEMS: Cinelli Alleges Wrongful Debt Collections
TRISTAR PRODUCTS: 6th Cir. Upholds Denial of Ariz. AG Intervention
TWITTER INC: Faces Shenwick Suit over Drop in Share Price
UBER TECHNOLOGIES: Underpays Drivers, Colopy Suit Alleges
VERMONT: DOC May Face Class Action Over Halal Food Access
VICTOR'S CAFE: $$72K Attorneys' Fees Awarded in Espinal FLSA Suit
WERNER ENTERPRISES: 8th Cir. Vacates $779K Award in Petrone Suit
WEWORK COMPANIES: Osborne Sues Over Unlawful Use of Biometric Data
WINGSTOP INC: Camacho Files ADA Suit in E.D. New York
WONDERFUL CO: Bid to Compel Arbitration in Calzadillas Case Gets OK
*********
3M CO: King Class Action in Alabama Still Ongoing
-------------------------------------------------
3M Company said in its Form 10-Q Report filed with the Securities
and Exchange Commission on October 25, 2019, for the quarterly
period ended September 30, 2019, that the company continues to
defend the "King" class action lawsuit in the U.S. District Court
for the Northern District of Alabama.
The King putative class action was filed in November 2017 against
3M, its subsidiary Dyneon, Daikin America, and the West Morgan-East
Lawrence Water and Sewer Authority (Water Authority) in the U.S.
District Court for the Northern District of Alabama. The plaintiffs
are residents of Lawrence and Morgan County, Alabama who receive
their water from the Water Authority. They assert various common
law claims, including negligence, nuisance, wantonness, and
fraudulent concealment, and they seek injunctive relief, attorneys'
fees, compensatory and punitive damages for their alleged personal
injuries.
The plaintiffs contend that the defendants own and operate
manufacturing and disposal facilities in Decatur that have released
and continue to release PFOA, PFOS and related chemicals into the
groundwater and surface water of their sites, resulting in
discharge into the Tennessee River.
The plaintiffs also contend that the defendants have discharged
chemicals into the Decatur Utilities Dry Creek Wastewater Treatment
Plant, which, in turn, discharged wastewater containing these
chemicals into the Tennessee River.
The plaintiffs contend that, as a result of the alleged discharges,
the water supplied by the Water Authority to the plaintiffs was,
and is, contaminated with PFOA, PFOS, and related chemicals at a
level dangerous to humans.
No further updates were provided in the Company's SEC report.
3M Company operates as a technology company worldwide. The
company's Industrial segment offers tapes, abrasives, adhesives,
ceramics, sealants, specialty materials, purification products,
closure systems, acoustic systems products, automotive components,
abrasion-resistant films, and paint finishing and detailing
products. The company was founded in 1902 and is headquartered in
St. Paul, Minnesota.
3M CO: St. John Class Action in Alabama Still Ongoing
-----------------------------------------------------
3M Company said in its Form 10-Q Report filed with the Securities
and Exchange Commission on October 25, 2019, for the quarterly
period ended September 30, 2019, that the company continues to
defend the St. John putative class action suit.
A former employee filed a putative class action lawsuit in 2002 in
the Circuit Court of Morgan County, Alabama (the "St. John case"),
seeking unstated damages and alleging that the plaintiffs suffered
fear, increased risk, subclinical injuries, and property damage
from exposure to certain perfluorochemicals at or near the
Company's Decatur, Alabama, manufacturing facility.
The plaintiffs' counsel filed an amended complaint in November
2006, limiting the case to property damage claims on behalf of a
putative class of residents and property owners in the vicinity of
the Decatur plant. In June 2015, the plaintiffs filed an amended
complaint adding additional defendants, including BFI Waste
Management Systems of Alabama, LLC; BFI Waste Management of North
America, LLC; the City of Decatur, Alabama; Morgan County, Alabama;
Municipal Utilities Board of Decatur; and Morgan County, Alabama,
d/b/a Decatur Utilities.
In 2005, the judge in a second putative class action lawsuit filed
by three residents of Morgan County, Alabama, seeking unstated
compensatory and punitive damages involving alleged damage to their
property from emissions of certain perfluorochemical compounds from
the Company's Decatur, Alabama, manufacturing facility that
formerly manufactured those compounds (the "Chandler case") granted
the Company's motion to abate the case, effectively putting the
case on hold pending the resolution of class certification issues
in the St. John case. Despite the stay, plaintiffs filed an amended
complaint seeking damages for alleged personal injuries and
property damage on behalf of the named plaintiffs and the members
of a putative class.
No further action in the case is expected unless and until the stay
is lifted.
No further updates were provided in the Company's SEC report.
3M Company operates as a technology company worldwide. The
company's Industrial segment offers tapes, abrasives, adhesives,
ceramics, sealants, specialty materials, purification products,
closure systems, acoustic systems products, automotive components,
abrasion-resistant films, and paint finishing and detailing
products. The company was founded in 1902 and is headquartered in
St. Paul, Minnesota.
3M CO: Stover Class Action Remains Stayed
-----------------------------------------
3M Company said in its Form 10-Q Report filed with the Securities
and Exchange Commission on October 25, 2019, for the quarterly
period ended September 30, 2019, that the "Stover" class action
suit is still on hold pending the resolution of the class
certification issues in the St. John case.
In February 2009, a resident of Franklin County, Alabama, filed a
putative class action lawsuit in the Circuit Court of Franklin
County (the "Stover case") seeking compensatory damages and
injunctive relief based on the application by the Decatur utility's
wastewater treatment plant of wastewater treatment sludge to
farmland and grasslands in the state that allegedly contain
perfluorooctanoate (PFOA), perfluorooctane sulfonate (PFOS) and
other perfluorochemicals.
The named plaintiff seeks to represent a class of all persons
within the State of Alabama who have had PFOA, PFOS, and other
perfluorochemicals released or deposited on their property. In
March 2010, the Alabama Supreme Court ordered the case transferred
from Franklin County to Morgan County.
In May 2010, consistent with its handling of the other matters, the
Morgan County Circuit Court abated this case, putting it on hold
pending the resolution of the class certification issues in the St.
John case.
No further updates were provided in the Company's SEC report.
3M Company operates as a technology company worldwide. The
company's Industrial segment offers tapes, abrasives, adhesives,
ceramics, sealants, specialty materials, purification products,
closure systems, acoustic systems products, automotive components,
abrasion-resistant films, and paint finishing and detailing
products. The company was founded in 1902 and is headquartered in
St. Paul, Minnesota.
3M CO: Water Contamination Suit Remains Stayed in Alabama Court
---------------------------------------------------------------
3M Company said in its Form 10-Q Report filed with the Securities
and Exchange Commission on October 25, 2019, for the quarterly
period ended September 30, 2019, that the class action suit filed
in state court in Lawrence County, Alabama, remains stayed.
In August 2016, a group of over 200 plaintiffs filed a putative
class action against West Morgan-East Lawrence Water and Sewer
Authority (Water Authority), 3M, Dyneon, Daikin, BFI Waste Systems
of Alabama (BFI), and the City of Decatur in state court in
Lawrence County, Alabama.
Plaintiffs are residents of Lawrence, Morgan and other counties who
are or have been customers of the Water Authority. They contend
defendants have released PFAS that contaminate the Tennessee River
and, in turn, their drinking water, causing damage to their health
and properties.
3M said, "In January 2017, the court in the St. John case,
discussed above, stayed this litigation pending resolution of the
St. John case."
No further updates were provided in the Company's SEC report.
3M Company operates as a technology company worldwide. The
company's Industrial segment offers tapes, abrasives, adhesives,
ceramics, sealants, specialty materials, purification products,
closure systems, acoustic systems products, automotive components,
abrasion-resistant films, and paint finishing and detailing
products. The company was founded in 1902 and is headquartered in
St. Paul, Minnesota.
ABB OPTICAL: Lewis Wage & Hour Suit Remanded to Alameda Sup. Court
------------------------------------------------------------------
The United States District Court for the Northern District of
California remanded to the Alameda County Superior Court the case
captioned AR'MANEY LEWIS, Plaintiff, v. ABB OPTICAL GROUP LLC, et
al., Defendants, Case No. 19-cv-02311-HSG. (N.D. Cal.).
Plaintiff filed a wage and hour putative class action complaint in
the Alameda County Superior Court. Plaintiff was employed by
Defendants as an hourly, non-exempt employee in California.
Plaintiff asserts that Defendant engaged in pattern and practice of
wage abuse against their hourly-paid or non-exempt employees within
the State of California. This pattern and practice involved, inter
alia, failing to pay them for all regular and/or overtime wages
earned and for missed meal periods and rest breaks.
Defendant ABB Con-Cise Optical Group LLC removed the case to
federal court, claiming that California District Court has
diversity jurisdiction under 28 U.S.C. Section 1332.
Plaintiff argues the case must be remanded to state court because
Defendant failed to meet its burden to show the amount in
controversy exceeds $75,000. Specifically, Plaintiff notes that
Defendant estimated less than $7,000 in unpaid wages and penalties
and relied on $90,000 in attorney's fees to meet the requirement.
The District Court agrees that Defendant has not met its burden to
show that the amount in controversy exceeds $75,000. Additionally,
because resolution of this issue is dispositive, the District Court
does not reach Plaintiff's other arguments for remand or any of
Defendant's other motions.
Using the claims and allegations raised by Plaintiff in the
Complaint, Defendant proffered the following estimates to meet the
amount in controversy requirement: $1,023.75 potential recovery for
Plaintiff's overtime claim (assuming three quarters of an hour
overtime per day during the fourteen weeks of employment at a
$19.50 overtime rate), $1,820.00 potential recovery for Plaintiff's
meal and rest break claim (assuming five denied meal periods and
rest periods per week of employment), $3,120.00 potential recovery
for failure to timely pay wages at termination (statutory penalties
up to thirty day maximum under section 203), $650 potential
recovery for failure to provide wage statements (statutory
penalties for seven potentially unprovided wage statements) and
$90,000 in attorneys' fees (estimating a billing rate of $450 per
hour and two hundred hours of attorney time spent on the case).
The District Court finds that Defendant has failed to show by a
preponderance of the evidence that attorneys' fees for a
single-plaintiff wage and hour suit alleging less than $7,000 in
damages would add up to $90,000. Although the District Court may
consider, a reasonable estimate of authorized attorneys' fees
likely to be expended. Defendant offers very little to explain why
$90,000 is reasonable.
Defendant cites various cases to argue that 200 attorney hours is a
reasonable estimate for such an action, but the cases range from
considering one hundred hours to be a conservative estimate, to
awarding only 62 hours worth of work because the remaining hours
were unsubstantiated, to awarding over 400 hours' worth of
attorneys' fees. Defendant makes no effort to explain why the
facts of these cases are like the facts and claims at issue in this
case. Nor does Defendant focus on the statutory bases for
attorneys' fees given Plaintiff's claims, or explain why the work
on only those claims would require 200 hours.
The Court must remand if there is any doubt as to the right of
removal in the first instance.
Accordingly, the District Court grants Plaintiff's motion to
remand, finding that Defendant has not met its burden to show that
there is at least $75,000 in controversy.
A full-text copy of the District Court's October 10, 2019 Order is
available at https://tinyurl.com/y45gv9lf from Leagle.com
Ar'maney Lewis, individually, and on behalf of other members of the
general public similarly situated, Plaintiff, represented by Edwin
Aiwazian - edwin@lfjpc.com - Lawyers for Justice, PC & Kenyon
Daniel Harbison - kharbison@allenmatkins.com - Allen Matkins Leck
Gamble et al.
ABB Optical Group LLC, an unknown business entity, Defendant,
represented by Christopher J. Banks -
christopher.banks@morganlewis.com - Morgan Lewis & Bockius LLP.
ABB/Con-Cise Optical Group LLC, an unknown business entity,
Defendant, represented by Karen Yoonjung Cho -
karen.cho@morganlewis.com -, Morgan, Lewis & Bockius LLP, Maureen
Nicole Beckley - maureen.beckley@morganlewis.com - Morgan, Lewis
and Bockius LLP & Christopher J. Banks -
christopher.banks@morganlewis.com - Morgan Lewis & Bockius LLP.
ABBVIE INC: Walleye Appeals Dismissal of Amended Suit to 7th Cir.
-----------------------------------------------------------------
Plaintiff Walleye Trading LLC filed an appeal from court rulings
issued in its lawsuit entitled WALLEYE TRADING LLC, individually
and on behalf of all others similarly situated, Plaintiff v. ABBVIE
INC. and WILLIAM J. CHASE, Defendants, Case No. 1:18-cv-05114, in
the U.S. District Court for the Northern District of Illinois.
The Plaintiff appeals these rulings:
-- order granting AbbVie Inc. and William J. Chase's motion to
dismiss Walleye's Amended Class Action Complaint under
Federal Rule of Civil Procedure 12(b)(6) entered in this
action on September 18, 2019;
-- Judgment in favor of Defendants entered in this action
on September 18, 2019 and amended on September 19, 2019;
and
-- all other orders that have merged into that final
Judgment.
The appellate case is captioned as WALLEYE TRADING LLC,
individually and on behalf of all others similarly situated,
Plaintiff v. ABBVIE INC. and WILLIAM J. CHASE, Defendants, Case No.
19-3063, in the United States Court of Appeals for the Seventh
Circuit.
As previously reported in the Class Action Reporter on Oct 15,
2019, Judge Charles P. Kocoras granted the Defendants' motion to
dismiss Plaintiff Walleye's First Amended Class Action Complaint
under Federal Rule of Civil Procedure 12(b)(6).
AbbVie conducted a modified Dutch Auction to repurchase $7.5
billion of its common stock. It set a tender range between $99 to
$114 per share (in $1 increments). AbbVie engaged Computershare as
the depositary to facilitate the Auction. Computershare and AbbVie
communicated daily regarding the tender process.
The Auction began on May 1, 2018 and continued until midnight on
May 29, 2018. At 8:00 a.m. (EST) on May 30, 2018, AbbVie issued a
Schedule to (Amendment No. 7) Tender Offer Statement announcing the
Auction's preliminary results. Once AbbVie announced that its
purchase price would be $105, its stock rose 3.5% from its May 29,
2018 closing price of $99.47, closing at $103.01 on May 30, 2018,
with a trading volume of more than 31 million shares.
Forty-six minutes after the market closed on May 30, AbbVie filed a
Corrected Schedule to Tender Offer Statement. The accompanying
press release showed that AbbVie's initial statement failed to
account for approximately 5,495,581 shares, of which 3,785,725 were
tendered by guaranteed delivery, which led AbbVie to lower its
purchase price from $105 to $103. The next trading day, AbbVie
stock traded down sharply and closed at $98.94.
Walleye brings the action under Federal Rules of Civil Procedure
23(a) and (b)(3) on behalf of all those who bought, or otherwise
transacted in AbbVie securities between 9:30 a.m. and 4:00 p.m.
(EST) on May 30, 2018 and were damaged thereby. Walleye alleges
three claims under the Exchange Act: Count I alleges Defendants
violated Section 14(e) of the Exchange Act; Count II alleges that
the Defendants violated Section 10(b) of the Exchange Act; and
Count III alleges that Defendant William Chase (AbbVie's CFO)
violated Section 20(a) of the Exchange Act.
The Defendants have moved to dismiss the First Amended Complaint
for failure to state a claim. They urge the Court to dismiss Count
I because Section 14(e) does not apply to statements made after a
tender offer expires. They further urge the Court to dismiss Count
II because Walleye does not allege sufficient facts to support
Section 10(b)'s falsity and scienter elements. Finally, the
Defendants urge the Court to dismiss Count III because Walleye has
not adequately alleged the direct liability of any Defendant.[BN]
The Plaintiff is represented by:
Seth Meyer, Esq.
Ashley C. Keller, Esq.
Tom Kayes, Esq.
U. Seth Ottensoser, Esq.
KELLER LENKNER LLC
150 N. Riverside Plaza, Suite 4270
Chicago, IL 60606
Telephone: (312) 741-5220
E-mail: sam@kellerlenkner.com
ack@kellerlenkner.com
tk@kellerlenkner.com
so@kellerlenkner.com
ABIOMED INC: Faces Barry Suit over 26% Drop in Share Price
----------------------------------------------------------
JOSEPH BARRY, individually and on behalf of all others similarly
situated, Plaintiff v. ABIOMED, INC.; MICHAEL R. MINOGUE; and TODD
A. TRAPP, Defendants, Case No. 1:19-cv-09258 (S.D.N.Y., Oct. 7,
2019) is a federal securities class action on behalf of a class
consisting of all persons other than Defendants who purchased or
otherwise acquired ABIOMED securities between November 1, 2018 and
July 31, 2019, both dates inclusive, seeking to recover damages
caused by the Defendants' violations of the federal securities laws
and to pursue remedies under the Securities Exchange Act of 1934.
The Plaintiff alleges in the complaint that throughout the Class
Period, the Defendants made materially false and misleading
statements regarding the Company's business, operational and
compliance policies. Specifically, Defendants made false and/or
misleading statements and/or failed to disclose that: (i) ABIOMED's
revenue growth was in decline; (ii) the Company did not have a
sufficient plan in place to stem its declining revenue growth;
(iii) the Company was unlikely to restore its revenue growth over
the next several fiscal quarters; (iv) consequently, ABIOMED was
reasonably likely to revise its full-year 2020 guidance in a way
that would fall short of the Company's projections and market
expectations; and (v) as a result, the Company's public statements
were materially false and misleading at all relevant times.
On August 1, 2019, pre-market, the Defendants issued a press
release announcing ABIOMED's financial and operating results for
the first quarter of fiscal year 2020 (the "1Q 2020 Press
Release"). Among other results, the 1Q 2020 Press Release disclosed
ABIOMED's third consecutive quarter of slowing revenue growth,
reporting "first quarter fiscal 2020 revenue of $207.7 million, an
increase of 15.4% compared to revenue of $180.0 million for the
same period of fiscal 2019." This represented a significant
decrease in revenue growth from 2Q 2019. Commenting on the
Company's surprising financial result disappointment, the Company's
Chairman, President and CEO, Defendant Michael R. Minogue
("Minogue"), revealed that the Company's "new training programs,
organizational changes in distribution, and external initiatives. .
. will require time to drive more growth in the future."
Following the Company's disclosure of its 1Q 2020 financial
performance and revised guidance, Investor's Business Daily
published an article raising concern with Defendant Minogue's prior
public statements, titled: "This Medtech's CEO Promised To 'Correct
The Course' – That Didn't Happen."
On this news, ABIOMED's stock price fell $73.69 per share, or
26.45%, to close at $204.87 per share on August 1, 2019.
ABIOMED, Inc. develops, manufactures, and markets cardiovascular
products. The Company develops technologies designed to assist and
replace the pumping function of the heart. Abiomed's products and
services are used by health care professionals in worldwide. [BN]
The Plaintiff is represented by:
Thomas L. Laughlin, IV, Esq.
Rhiana L. Swartz, Esq.
SCOTT+SCOTT ATTORNEYS LAW LLP
230 Park Avenue, 17th Floor
New York, NY 10169
Telephone: (212) 223-6444
Facsimile: (212) 223-6334
E-mail: tlaughlin@scott-scott.com
rswartz@scott-scott.com
- and -
Brian Schall, Esq.
THE SCHALL LAW FIRM
1880 Century Park East, Suite 404
Los Angeles, CA 90067
Telephone: (310) 301-3335
Facsimile: (310) 388-0192
E-mail: brian@schallfirm.com
ALIBABA: $250MM Deal in 2015 Consumer Suit Gets Final Approval
--------------------------------------------------------------
Seeking Alpha's Brandy Betz, citing Bloomberg, reports that a
federal judge in Manhattan grants the final approval for Alibaba's
$250M settlement related to a 2015 consumer lawsuit claiming BABA
artificially inflated the value of its shares.
The judge ruled that the settlement is "fair, reasonable and
adequate." [GN]
ALTERRA AMERICA: 5th Cir. Upholds Remand of Cobalt Insurance Suit
-----------------------------------------------------------------
The United States Court of Appeals for the Fifth Circuit issued an
Opinion affirming the District Court's judgment granting
Plaintiffs' Motion to Remand in the case captioned COBALT
INTERNATIONAL ENERGY, INCORPORATED, Plaintiff-Appellee. GAMCO
GLOBAL GOLD, NATURAL RESOURCES; INCOME TRUST; GAMCO NATURAL
RESOURCES, GOLD; INCOME TRUST; JACK E. GOLDEN; JON A. MARSHALL; D.
JEFF VAN STEENBERGEN; MYLES W. SCOGGINS; MARTIN H. YOUNG; WILLIAM
P. UTT; KENNETH W. MOORE, JR.; JAMES W. FARNSWORTH; JOSEPH H.
BRYANT; JOHN P. WILKIRSON; J. HARDY MURCHISON; PETER R. CONEWAY; N.
JOHN LANCASTER, JR.; HENRY CORNELL; KENNETH A. PONTARELLI,
Intervenor Plaintiffs-Appellees, v. ALTERRA AMERICA INSURANCE
COMPANY, Defendant-Appellant. ALLIED WORLD ASSURANCE COMPANY,
Intervenor Defendant-Appellant. No. 19-20519. (5th Cir.)
Cobalt International Energy, Inc. is a party to two suits relevant
to the current appeal. The first is a class action that originated
in federal court. The second, a suit for insurance coverage of
losses stemming from the class action, was filed in state court but
removed to federal court by Alterra America Insurance Company and
Allied World Assurance Company. Following removal, Cobalt filed a
motion to remand the case to state court. The district court
granted that motion, and Alterra and Allied World appealed.
Cobalt was a Texas-based oil exploration and production corporation
that engaged in offshore exploration in Angola, West Africa. At
some point prior to the litigation in the present case, Cobalt
purchased management liability insurance policies to provide
primary and excess liability coverage for itself and its officers
and directors.
In 2011, Cobalt disclosed that the United States Securities and
Exchange Commission and United States Department of Justice were
investigating allegations of connections between the company's
Angolan local partner and senior Angolan government officials. In
2013 and 2014, Cobalt disclosed that certain of its wells in Angola
did not contain viable oil reserves. Those disclosures led to a
consolidated class action. GAMCO Global Gold, Natural Resources,
and Income Trust and GAMCO Natural Resources, Gold & Income Trust
(the "GAMCO funds") together serve as lead plaintiffs in that
case.
Cobalt and the class signed a settlement agreement in October 2018.
Under the terms of the settlement agreement, Cobalt agreed to pay
$220 million. That amount was payable exclusively from Cobalt's
liability policies, and the parties agreed that Cobalt and the
GAMCO funds would together pursue recovery against Cobalt's
insurers. The district court granted preliminary approval of the
agreement in November 2018 and finally approved the agreement after
a hearing on February 13, 2019.
In May 2016, while the class action was pending, Cobalt filed suit
in Texas state court seeking insurance coverage for losses arising
out of the class action (the "insurance coverage suit"). The GAMCO
funds intervened in the insurance coverage suit in January 2019,
asserting a right to do so based on the proposed settlement
agreement in the class action. Illinois National Insurance Company,
a defendant in the insurance coverage suit, almost immediately
filed a motion to strike the GAMCO funds' petition in intervention.
Illinois National argued that the GAMCO funds did not have standing
in the coverage litigation because the class action settlement
agreement had not yet received final court approval.
On February 1, 2019, before final court approval of the class
action settlement agreement and before Illinois National's motion
to strike was heard, Cobalt and the GAMCO funds jointly filed a
fifth amended petition joining Alterra and Cobalt's twelve other
remaining excess insurers to the insurance coverage action. Allied
World, which had intervened in the insurance coverage action in
September 2018, then removed the insurance coverage action to
federal court pursuant to the Class Action Fairness Act of 2005
("CAFA" or the "Act"). Alterra joined in Allied World's removal
three days later.
Cobalt filed a motion to remand, arguing both (1) that Allied
World's removal was untimely because it was not filed within 30
days of the GAMCO funds' intervention; and (2) that the coverage
action is not a "class action" for purposes of CAFA. The district
court agreed with both of Cobalt's arguments, concluded that it
lacked subject matter jurisdiction over the insurance coverage
action, and granted the motion to remand. Allied World and Alterra
(together, "Defendant-Appellants") appealed.
On review, the Fifth Circuit concludes that the notice of removal
was not timely. The GAMCO funds filed a petition in intervention in
the insurance coverage action on January 22, 2019. In Texas,
intervention occurs the moment the intervening party files its
petition. Assuming momentarily that the insurance coverage action
did in fact become a class action under CAFA because of the GAMCO
funds' status as lead plaintiffs in the federal class litigation,
Defendant-Appellants were on notice that the case was eligible for
removal when the GAMCO funds intervened. Therefore, any defendants
must have removed the insurance coverage action to federal court
within 30 days of January 22 (i.e., on or before February 21).
Allied World's notice of removal was not filed until March 1 and
was therefore untimely.
Alterra's later joinder in Allied World's untimely removal is not
curative, the Fifth Circuit opines. Each defendant has 30 days
following service of an initial pleading to "file the notice of
removal." Cobalt and the GAMCO funds first named Alterra in their
fifth amended petition. With respect to Alterra, that amended
petition was the "initial pleading" for purposes of 28 U.S.C. Sec.
1446(b)(2)(B). Alterra's 30-day deadline to remove therefore
started to run on February 11, 2019, the date the fifth amended
petition was served. Alterra's notice of joinder was filed on March
4, 2019 -- within that deadline. But Alterra did not file its own
notice of removal, instead choosing to join the previous (and
untimely) notice filed by Allied World. Given the clear language of
the removal statute, which directs each defendant to file its own
"notice of removal," Alterra's joinder was insufficient, the Fifth
Circuit holds.
Accordingly, the Fifth Circuit affirmed the district court's order
granting Cobalt's motion to remand.
A full-text copy of the Fifth Circuit's October 3, 2019 Opinion is
available at https://tinyurl.com/y24enfud from Leagle.com
Ronald J. Restrepo - rrestrepo@drhrlaw.com - for Intervenor
Defendant-Appellant.
Robert P. Scott, Jr. - rscott@blankrome.com - for Intervenor
Plaintiff-Appellee.
Robert P. Scott, Jr. , for Plaintiff-Appellee.
Marc Daniel Cabrera - - mcabrera@lockelord.com - for
Defendant-Appellant.
Kristin V. Gallagher - kgallagher@mcdonaldcarano.com - for
Intervenor Defendant-Appellant.
Daisy Khambatta - dkhambatta@cozen.com - for Intervenor
Defendant-Appellant.
Andrew J. Entwistle - aentwistle@entwistle-law.com - for Intervenor
Plaintiff-Appellee.
Michael Frederick Perlis - mperlis@lockelord.com - for
Defendant-Appellant.
APPLE INC: $6.6 Million Settlement Over iPHone 4 Glitch Approved
----------------------------------------------------------------
OAN reports that Apple is being forced to pay out nearly $7 million
to end a lawsuit over an iPhone glitch. A California judge agreed
to a $6.6 million settlement deal, which will end the 2014 class
action lawsuit against the tech giant.
Judge Brian Walsh approved the settlement during a hearing in San
Jose on Oct. 18, 2019. More than 100,000 people who purchased
iPhone 4s after August 31, 2012 are entitled to a sum of no larger
than $199 per person.
The lawsuit comes after customers accused Apple of issuing iPhone
4s that had Wi-Fi and Bluetooth malfunctions. The glitches
reportedly began after the company issued one of its mandated
system updates.
Apple is expected to release its first 5G phone next year,
following Samsung, Motorola, LG and OnePlus, who already have 5g
devices on the market. [GN]
APPLE INC: Faces Class Action in Illinois Over Siri Voiceprints
---------------------------------------------------------------
Jonathan Bilyk, writing for Cook County Record, reports that Apple
has now joined the ranks of the tech giants hit with a class action
in Illinois under the state's biometric information privacy law, as
a group of trial lawyers have taken aim at the company's deployment
of its Siri virtual assistant.
On Oct. 10, attorneys with the firms of Miller Shakman Levine &
Feldman, of Chicago, and Silver Golub & Teitell, of Stamford,
Conn., filed a class action complaint in Cook County Circuit Court
against the Cupertino, Calif.-based technology titan.
The named plaintiff in the action is Deborah Zaluda identified only
as a resident of Illinois.
The lawsuit targets Apple's use of its voice-activated A.I., Siri,
which is enabled across its spectrum of smart products, including
its iPhones and Apple Watches.
First introduced in 2011, Siri fields spoken voice queries,
allowing users to interact with Apple's platforms to answer
questions and obtain recommendations in a conversational fashion.
Before using Siri, users are instructed to create a "User Profile"
by repeating a set of five phrases, essentially to allow Siri to
record a user's voice and learn to recognize it.
According to the complaint, Siri "also records and analyzes the
user's first 40 requests in the same way and stores the resulting
data."
The complaint said this means Apple, through Siri, creates and
stores a "voiceprint" for each user, allowing Apple, through Siri,
to identify each user.
However, the lawsuit accuses Apple of creating these voiceprints in
violation of an Illinois privacy law. The lawsuit asserts the law,
known as the Biometric Information Privacy Act, requires companies,
like Apple, to obtain written authorization from users before
creating and storing biometric identifiers, like voiceprints. The
lawsuit said Apple has not done so, and also has not notified users
of its policies for storing, sharing and ultimately destroying the
voiceprints and other electronically stored biometric data.
The lawsuit seeks damages of $1,000-$5,000 per violation, as
spelled out in the BIPA law. Some observers have said each
violation could be defined as each time a user's voiceprint is
created, saved or scanned.
While the lawsuit is the first to target Apple's use of Siri under
BIPA, a large and growing number of class actions have been brought
against hundreds of businesses of a host of sizes and across
industries under the BIPA law.
Other big tech companies targeted under BIPA have included Facebook
and Shutterfly, sued over allegations their photo tagging features
violate the BIPA-created rights of Illinois users whose facial
geometry has been scanned, saved and stored for use in identifying
them in photos uploaded and shared to social media and photo
sharing platforms.
Recently, the U.S. Ninth Circuit Court of Appeals in California
rejected Facebook's attempt to sidestep a class action under BIPA,
which originated in Cook County court and was transferred to
federal court in San Francisco.
Facebook could face "tens of billions" of dollars in damages as a
result of the class action, according to the trial lawyers with the
firm of Edelson P.C., in Chicago, who filed that lawsuit.
A continuously growing number of employers in Illinois have also
been targets of BIPA class actions, as the lawsuits have accused
the employers of violating the law by requiring employees to scan
fingerprints or use other biometric identifiers to either punch the
clock at work or access secure areas, such as drug storage areas in
hospitals or rail yards.
Earlier this year, the Illinois Supreme Court opened the way for
many new actions, and laid the basis for the Ninth Circuit's ruling
by finding plaintiffs don't need to prove they were harmed in any
concrete way, such as by having their identity stolen or data
exposed in a breach, before filing suit. Rather, the Illinois
Supreme Court, merely failing to notify employees of their
biometric data retention policies could place companies of all
sizes on the hook for potentially millions or even billions of
dollars in damages. [GN]
APPLE INC: Faces New iPhone Throttling Class Action in California
-----------------------------------------------------------------
Mikey Campbell, writing for Apple Insider, reports that a fresh
class action lawsuit lodged in California seeks to bring Apple to
task for quietly building iPhone-throttling battery management
tools into previous versions of its iOS operating system, an action
that allegedly hindered and interfered with device performance.
Filed with the U.S. District Court for the Northern District of
California, the lawsuit is the latest in a long line of similar
complaints lodged in courts across the country.
Among the causes of action laid out by plaintiffs are counts of
trespass to chattels, violation of the Computer Fraud and Abuse Act
(CFAA), violation of California's Computer Data Access and Fraud
Act, unfair business practices and false advertisement.
Plaintiffs allege Apple harmed owners of iPhone 6, 6 Plus, 6s, 6s
Plus, SE, 7 and 7 Plus units by implementing an iOS feature that,
under certain conditions, temporarily throttles an iPhone's
processor during instances of heavy load.
First released in iOS 10.2.1, the hardware management tool was
included in subsequent iOS versions to mitigate negative effects of
aging iPhone batteries, specifically unexpected shutdowns suffered
by certain iPhone 6 and 6s devices. Critics claim Apple failed to
adequately inform users about the feature and its ability to slow
down performance without user consent, as release notes
accompanying the 10.2.1 release state only that the update
"improves power management during peak workloads to avoid
unexpected shutdowns on iPhone."
A Reddit user discovered the CPU throttling function by running
impromptu benchmarking tests on their personal device, setting off
a firestorm of complaints and rekindling rumors of a so-called
planned obsolescence scheme.
Further testing from third parties confirmed the presence of an
undisclosed throttling process, prompting Apple to issue an apology
to iPhone owners for a lack of transparency. In a bid to quell
customer concerns, the company slashed prices on out-of-warranty
battery replacements and introduced a battery health tool in iOS
that allows users to disable the throttling feature.
Despite its best efforts, Apple was saddled with a series of
class-action lawsuits and government inquiries. In April 2018, the
Judicial Panel on Multidistrict Litigation ordered the
consolidation of 61 class action complaints targeting the slowdown
controversy. New cases continue to pop up, however, with the latest
filed with a California court in August.
As with previous cases, plaintiffs seek class certification,
unspecified damages with interest and attorneys' fees. [GN]
AQA: May Face Class Action Following Re-Marking Blunder
-------------------------------------------------------
Lizzie Roberts and Camilla Turner at The Telegraph report that the
UK's biggest exam board could face class action from parents,
following revelations that answers were being "remarked" by the
same examiners.
Earlier, it emerged that AQA was handed the biggest ever fine by
the exam regulator after it admitted that for three years it failed
to ensure that the examiners who remarked questions following an
appeal were different to the examiners who had marked them the
first time around.
Now the board could face class action from parents who fear their
children may have been disadvantaged as a result.
Ofqual told The Daily Telegraph that while AQA had accepted its
ruling on its remarking failures and will not appeal, it is still
possible for third parties to make representations about its
enforcement action.
Shimon Goldwater, a senior solicitor at Asserson -- the law firm
which represented university students who launched legal action
against last year's lecturer strikes -- said a group action might
be possible against the examination board.
He said that if parents could show they have experienced financial
loss arising from AQA'S failures, they could make a claim. Marking
reviews are paid for by schools, so this would only apply where the
cost has been passed on to parents.
Mr Goldwater said: "If there is actual money that you've had to lay
out because of it . . . then possibly those expenses you could
claim."
Dr Tony Breslin, former chief examiner for GCSEs and chair of
examiners for A levels, said that AQA's remarking blunder
represents a "systematic failure".
He said: "If I were a parent, I would be furious. I would imagine
an enterprising law firm could launch a class action on behalf of a
group of parents."
But any parents or schools that decide to take action and challenge
either Ofqual or AQA would need "very deep pockets", he added.
The exam board has been ordered to pay GBP350,000 by Ofqual, as
well as an unprecedented GBP735,570 in compensation to schools and
exam centres.
During 2016, 2017 and 2018, AQA failed to ensure that the examiners
who remarked questions following an appeal were different to the
examiners who had marked them the first time around.
Neil Roskilly, chief executive of the Independent Schools
Association, said they would "certainly support" parents in
launching a claim if they felt their children had been "dumbed
down".
"AQA has said no child has missed out on a grade they should have
received, but it would be interesting to see if that proves to be
the case," he said.
Mark Bedlow, AQA's Interim Chief Executive, said: "I want to
reassure everyone that this past technical issue -- which we've
fixed now -- didn't affect the outcome of anyone's review. Where
necessary, grades were still changed.
"Reviews of marking are only carried out by our best, most
experienced examiners who are very unlikely to have made mistakes
in their original marking -- and, in the vast majority of cases,
we're talking about one isolated, anonymised answer from a paper
being reviewed by the senior examiner who originally marked it.
"But reviews should always be carried out by a fresh pair of eyes
and we're sorry that, for a small proportion in the past, this
wasn't the case. We've made sure we got it right this summer, just
as we did after last year's November exams." [GN]
AURATE LLC: Crosson Files ADA Suit in E.D. New York
---------------------------------------------------
A class action lawsuit has been filed against Aurate, LLC. The case
is styled as Aretha Crosson individually and as the representative
of a class of similarly situated persons, Plaintiff v. Aurate, LLC,
Defendant, Case No. 1:19-cv-06144 (E.D.N.Y., Oct. 31, 2019).
The Plaintiff filed the case under the Americans with Disabilities
Act.
Aurate LLC operates as a jewelry company. The Company offers rings,
necklaces, bracelets, and earrings.[BN]
The Plaintiff is represented by:
Dan Shaked, Esq.
Shaked Law Group, P.C.
44 Court Street, Suite 1217
Brooklyn, NY 11217
Phone: (917) 373-9128
Fax: (718) 504-7555
Email: shakedlawgroup@gmail.com
AUTOLIV INC: Insurer's Antitrust Lawsuit Ongoing
------------------------------------------------
Autoliv, Inc. said in its Form 10-Q Report filed with the
Securities and Exchange Commission on October 25, 2019, for the
quarterly period ended September 30, 2019, that the company
continues to defend an antitrust lawsuit initiated by an insurer
(and its affiliated entities) that opted out of an end-payor class
settlement.
The Company is subject to civil litigation alleging
anti-competitive conduct in the U.S. and Canada. As previously
reported, the Company, several of its subsidiaries, and its
competitors were named as defendants in a total of nineteen
purported antitrust class action lawsuits filed between June 2012
and June 2015. Fifteen of these lawsuits were filed in the U.S. and
were consolidated in the Automobile Parts Antitrust Litigation, a
Multi-District Litigation (MDL) proceeding in the United States
District Court for the Eastern District of Michigan.
Plaintiffs in the U.S. cases sought to represent four purported
classes - direct purchasers, auto dealers, end-payors, and truck
and equipment dealers - who purchased occupant safety systems or
components directly from a defendant, indirectly through purchases
or leases of new vehicles containing such systems, or through
purchases of replacement parts.
In May 2014, the Company, without admitting any liability, entered
into separate settlement agreements with the direct purchasers,
auto dealers, and end-payors, which were granted final approval by
the MDL court in 2015 and 2016.
In April 2016, the Company entered into a settlement agreement with
the truck and equipment dealers' class, which was granted final
approval by the MDL court in 2016.
The class settlements do not resolve any claims of settlement class
members who opt-out of the settlements or the unasserted claims of
any purchasers of occupant safety systems who are not otherwise
included in a settlement class, such as states and municipalities.
Several individuals and one insurer (and its affiliated entities)
opted-out of the end-payor class settlement, including the
Company's settlement.
In September 2016, the insurer (and its affiliated entities) that
opted out of the end-payor class settlement filed an antitrust
lawsuit in the United States District Court for the Eastern
District of Michigan.
The Company has accrued an amount that is not material to the
Company's results of operations to resolve this issue.
No further updates were provided in the Company's SEC report.
Autoliv, Inc., through its subsidiaries, develops, manufactures,
and supplies automotive safety systems to the automotive industry.
Autoliv, Inc. was founded in 1953 and is headquartered in
Stockholm, Sweden.
AVENUE STORES: Has Made Unsolicited Calls, Bicana Suit Claims
-------------------------------------------------------------
MARGARITA BICANA, individually and on behalf of all others
similarly situated, Plaintiff v. AVENUE STORES, LLC, Defendant,
Case No. 8:19-cv-01923 (C.D. Cal., Oct. 7, 2019) seeks to stop the
Defendants' practice of making unsolicited calls.
Avenue Stores, LLC operates as a chain of retail stores. The
Company offers plus-size tops, bottoms, jackets, blazers,
intimates, dresses, swimwear, basics tees, tanks, web exclusives,
outfits, shoes, and accessories for women. Avenue Stores operates
in the United States. [BN]
The Plaintiff is represented by:
Abbas Kazerounian, Esq.
Mona Amini, Esq.
KAZEROUNI LAW GROUP, APC
245 Fischer Avenue, Unit D1
Costa Mesa, CA 92626
Telephone: (800) 400-6808
Facsimile: (800) 520-5523
E-mail: ak@kazlg.com
mona@kazlg.com
- and -
Scott Edelsberg, Esq.
EDELSBERG LAW, P.A.
19495 Biscayne Blvd #607
Aventura, FL 33180
Telephone: (305) 975-3320
E-mail: scott@edelsberglaw.com
- and -
Andrew J. Shamis, Esq.
SHAMIS & GENTILE, P.A.
14 NE 1st Avenue, Suite 1205
Miami, FL 33132
Telephone: (305) 479-2299
E-mail: ashamis@shamisgentile.com
AVON PRODUCTS: Proxy Statement Misleading, Kent Says
----------------------------------------------------
MICHAEL KENT, Individually and On Behalf of All Others Similarly
Situated, the Plaintiff, v. AVON PRODUCTS, INC., CHAN W. GALBATO,
W. DON CORNWELL, JAN ZIJDERVELD, JOSE ARMARIO, NANCY KILLEFER,
SUSAN J. KROPF, HELEN MCCLUSKEY, ANDREW G. MCMASTER, JR., JAMES A.
MITAROTONDA, MICHAEL F. SANFORD, LENARD TESSLER, NATURA COSMÉTICOS
S.A., NECTARINE MERGER SUB I, INC., NECTARINE MERGER SUB II, INC.,
and NATURA & CO. HOLDING S.A., the Defendants, Case No.
1:19-cv-01959-UNA (D. Del., Oct. 15, 2019), stems from a proposed
transaction announced on May 22, 2019, pursuant to which Avon
Products, Inc. will be acquired by Natura Cosmeticos S.A.,
Nectarine Merger Sub I, Inc., a Delaware corporation, Nectarine
Merger Sub II, Inc., a Delaware corporation, and Natura & Co
Holding S.A.
On May 22, 2019, Avon's Board of Directors caused the Company to
enter into an agreement and plan of merger with Natura.
On October 4, 2019, the Defendants filed a proxy statement with the
United States Securities and Exchange Commission in connection with
the Proposed Transaction, which scheduled a stockholder vote on the
Proposed Transaction for November 13, 2019.
The Proxy Statement omits material information with respect to the
Proposed Transaction, which renders the Proxy Statement false and
misleading.
First, the Proxy Statement omits material information regarding the
Company's and Natura's financial projections.
Second, the Proxy Statement omits material information regarding
the analyses performed by the Company's financial advisors in
connection with the Proposed Transaction, Goldman Sachs and PJT
Partners.
Third, the Proxy Statement omits material information regarding
potential conflicts of interest of PJT. The Proxy Statement fails
to disclose the timing and nature of the past services PJT provided
to Cerberus, the lawsuit says.
Avon is a global manufacturer and marketer of beauty and related
products. The Company's product categories are Beauty and Fashion &
Home. Beauty consists of skincare, fragrance, and color
(cosmetics). Fashion & Home consists of fashion jewelry, watches,
apparel, footwear, accessories, gift and decorative products,
housewares, entertainment and leisure products, children's
products, and nutritional products.
Avon's business is conducted primarily in one channel: direct
selling. The Company's reportable segments are based on geographic
operations in four regions: (i) Europe, Middle East, and Africa;
(ii) South Latin America; (iii) North Latin America; and (iv) Asia
Pacific.[BN]
Attorneys for the Plaintiff are:
Gina M. Serra, Esq.
Seth D. Rigrodsky, 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: sdr@rl-legal.com
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
BACKYARD PRODUCTS: No Arbitration in Barksdale Suit, Court Orders
-----------------------------------------------------------------
The United States District Court for the Western District of
Missouri, Western Division, denied the Defendants' Motion to Compel
Plaintiff to Arbitrate Claims on an Individualized Basis and
Dismiss or, Alternatively, Stay Proceeding Pending Completion of
the Arbitration in the case captioned CAMILLE BARKSDALE,
individually and on behalf of all others Plaintiffs, v. BACKYARD
PRODUCTS, LLC d/b/a BACKYARD STORAGE SOLUTIONS, LLC; BACKYARD
SERVICES, LLC; HEARTLAND INDUSTRIES, Defendants. No.
4:19-cv-06074-DGK. (W.D. Mo.).
The putative class action alleges violations of the Fair Credit
Reporting Act (FCRA). Plaintiff Camille Barksdale asserts that
after she applied for employment with Defendants Backyard Products,
LLC d/b/a Backyard Storage Solutions, LLC; Backyard Services, LLC;
and Heartland Industries, Defendants ordered her credit report
without her consent, or without providing her with the appropriate
disclosure, both of which are FCRA violations.
On review, the District Court finds that the purported arbitration
agreement lacks mutual assent due to Defendants failure to sign it
and thus no agreement exists under Missouri law.
Accordingly, the District Court denies Defendants' motion for an
arbitration.
A full-text copy of the District Court's October 3, 2019 Order is
available at https://tinyurl.com/yxcbj7qq from Leagle.com
Camille Barksdale, Plaintiff, represented by Charles Jason Brown -
brown@brownandwatkins.com - Brown & Watkins, LLC & Jayson A.
Watkins - watkins@brownandwatkins.com - Brown & Watkins, LLC.
Backyard Products LLC, doing business as Backyard Storage
Solutions, LLC, Defendant, represented by Blake J. Burgan , One
Indiana Square, One Indiana Square, Suite 3500, Indianapolis, IN
46204, pro hac vice, Jeffrey D. Stemerick -
jstemerick@taftlaw.com - Taft Stettinius & Hollister LLP, pro hac
vice, Michael C. Terrell - mterrell@taftlaw.com - Taft Stettinius &
Hollister LLP, pro hac vice, Anthony F. Rupp - trupp@foulston.com -
Foulston Siefkin, LLP & Forrest T. Rhodes, Jr. -
frhodes@foulston.com - Foulston Siefkin, LLP.
Backyard Services LLC & Heartland Industries, Defendants,
represented by Anthony F. Rupp , Foulston Siefkin, LLP & Forrest T.
Rhodes, Jr. , Foulston Siefkin, LLP.
BALTIMORE, MD: Borkowski Has Until Dec. 3 to File 3rd Amended Suit
------------------------------------------------------------------
In the case ANNA BORKOWSKI, et al. v. BALTIMORE COUNTY, MARYLAND,
et al. Civil Action No. DKC 18-2809. (D. Md.), Judge Deborah
Chasanow of the U.S. District Court for the District of Maryland
enlarged the time to allow Plaintiffs to file a third amended
complaint through Dec. 3, 2019.
Plaintiffs are Anna Borkowski, Katelyn Frank, Marcella Fegler,
Annemarie Hendler, and Kaila Noland.
Plaintiffs highlight the complex nature of the case and counsel's
other upcoming obligations in their request for more time to file a
third amended complaint.
A full-text copy of the District of Court's October 10, 2019 Order
is available at https://tinyurl.com/y3hlcq2k from Leagle.com
Anna Borkowski & Katelyn Frank, Plaintiffs, represented by Rignal
Woodward Baldwin, V - RBaldwinV@baldwinlawllc.com - BaldwinLaw LLC
& Stephen Craig Rigg -
SRigg@baldwinlawllc.com - BaldwinLaw, LLC.
Marcella Fegler, Annemarie Hendler & Kaila Noland, Plaintiffs,
represented by Rignal Woodward Baldwin, V , BaldwinLaw LLC.
Baltimore County, Maryland, Baltimore County Police Department,
Nicholas Tomas, Kristin Burrows, Kimberly Montgomery, Paul Dorfler,
James Johnson, Terrence Sheridan, Morrow Lane, Rosemarie Brady &
Timothy Lee, Defendants, represented by Christopher C. Dahl –
cdahl@bakerdonelson.com -BAKER DONELSON & Neil E. Duke –
nduke@bakerdonelson - BAKER DONELSON.
The Board of Regents of the University System of Maryland,
University of Maryland, Baltimore County, Freeman Hrabowski, III,
University of Maryland Baltimore County Police Department & Mark
Sparks, Defendants, represented by Erik James Delfosse , Office of
the Attorney General.
Lisa Dever, Scott Shellenberger, Bonnie Fox & Krystin Richardson,
Defendants, represented by Wendy L. Shiff , Office of the Attorney
General.
Paul Dillon, Defendant, represented by Christopher Bowie Lord ,
Office of the Attorney General Educational Affairs Division & Erik
James Delfosse , Office of the Attorney General.
Bernadette Hunton, Defendant, represented by Clifford Bernard
Geiger - cgeiger@kollmanlaw.com - Kollman and Saucier PA &
Alexander P. Berg - aberg@kollmanlaw.com - Kollman & Saucier PA.
BARNES & NOBLE: Thorne Alleges Violation under ADA
--------------------------------------------------
Barnes & Noble Booksellers, Inc. is facing a class action lawsuit
filed pursuant to the Americans with Disabilities Act. The case is
styled as Braulio Thorne, on behalf of himself and all other
persons similarly situated, Plaintiff v. Barnes & Noble
Booksellers, Inc., Defendant, Case No. 1:19-cv-10069 (S.D. N.Y.,
Oct. 30, 2019).
Barnes & Noble Booksellers Inc. retails books and magazines. The
Company offers new and used textbooks, general reading books,
notebooks, school merchandise, athletic gear, and alumni products.
Barnes & Noble Booksellers operates in the United States.[BN]
The Plaintiff is represented by:
Jeffrey Michael Gottlieb, Esq.
150 E. 18 St., Suite PHR
New York, NY 10003
Tel: (212) 228-9795
Fax: (212) 982-6284
Email: nyjg@aol.com
BEA PROPERTIES: Underpays Laborers, Coello Suit Alleges
-------------------------------------------------------
VICTOR DANIEL COELLO, individually and on behalf of all others
similarly situated, Plaintiff v. BEA PROPERTIES LLC; JO-BE
PROPERTIES LLC; JOHN MARINO; and VIDAL LAGARA, Defendants, Case No.
2:19-cv-05688-MKB-JO (E.D.N.Y., Oct. 8, 2019) is an action against
the Defendants for unpaid wages, overtime pay, liquidated damages,
attorney's fees and costs.
The Plaintiff Coello was employed by the Defendants laborer.
Bea Properties LLC is a New York corporation providing general
maintenance work, landscaping, and construction services. [BN]
The Plaintiff is represented by:
Roman Avshalumov, Esq.
HELEN F. DALTON & ASSOCIATES, P.C.
80-02 Kew Gardens Road, Suite 601
Kew Gardens, NY 11415
Telephone: (718) 263-9591
BOEING COMPANY: Pilot M Sues Over Lost Wages & Emotional Distress
-----------------------------------------------------------------
PILOT M, individually and on behalf of all those similarly situated
v. THE BOEING COMPANY, a Delaware corporation, Case No.
1:19-cv-07294 (N.D. Ill., Nov. 5, 2019), is brought on behalf of
the Plaintiff and 150 other pilots qualified to fly the Boeing 737
MAX series of aircraft as employees of an international airline.
According to the complaint, the Plaintiff's personal and
professional life was disrupted when BOEING and the Federal
Aviation Administration engaged in an unprecedented cover-up of
known design flaws of the MAX, which predictably resulted in the
crashes of two MAX aircraft and grounding of all MAX aircraft
worldwide. The Plaintiff relied on BOEING's representations that
the MAX was safe when the Plaintiff chose to qualify to fly the
MAX, and the Plaintiff suffered significant lost wages, among other
economic and non-economic damages, when the MAX was grounded with
no end in sight.
Additionally, the Plaintiff suffered severe emotional and mental
distress when the Plaintiff was compelled to fly the MAX--placing
the Plaintiff's life and the lives of the crews and passengers in
danger--despite the growing awareness of the dangerous nature of
the Maneuvering Characteristics Augmentation System (the "MCAS")
and other problems that BOEING had previously concealed or failed
to disclose to the Plaintiff, says the complaint.
For these reasons, the Plaintiff, individually and on behalf of all
those similarly situated, seeks entry of a judgment against BOEING
in an amount that will make the Plaintiff whole and deter BOEING
and other manufacturers from valuing corporate profits over human
life.
The Plaintiff was a resident of Iceland and licensed pilot employed
by an international airline that employed 45 pilots, who are
qualified to operate the MAX, and who are citizens of many
different nations, including the United States.
BOEING designs, manufactures and markets aircrafts, including MAX
airplanes.[BN]
The Plaintiff is represented by:
Patrick M. Jones, Esq.
Sarah M. Beaujour, Esq.
PMJ PLLC
100 South State Street
Chicago, IL 60603
Phone: (312) 255-7976
Email: pmj@patjonespllc.com
smb@patjonespllc.com
- and -
Joseph C. Wheeler, Esq.
IALPG PTY LTD
(T/AS INTERNATIONAL AEROSPACE LAW & POLICY GROUP)
ID, 7/139 Junction Road, Clayfield
Queensland, Australia 4011
Phone: +61 7 3040 1099
Email: jwheeler@ialpg.com
BOIE LLC: Crosson Files ADA Suit in E.D. New York
-------------------------------------------------
A class action lawsuit has been filed against Boie, LLC. The case
is styled as Aretha Crosson individually and as the representative
of a class of similarly situated persons, Plaintiff v. Boie, LLC,
Defendant, Case No. 1:19-cv-06145 (E.D.N.Y., Oct. 31, 2019).
The Plaintiff filed the case under the Americans with Disabilities
Act.
Boie, LLC manufactures eco-friendly toothbrush & body scrubber and
offers oral care and personal care.[BN]
The Plaintiff is represented by:
Dan Shaked, Esq.
Shaked Law Group, P.C.
44 Court Street, Suite 1217
Brooklyn, NY 11217
Phone: (917) 373-9128
Fax: (718) 504-7555
Email: shakedlawgroup@gmail.com
BOSTON PROPER: Guglielmo Asserts Breach of Disabilities Act
-----------------------------------------------------------
Boston Proper LLC is facing a class action lawsuit filed pursuant
to the Americans with Disabilities Act. The case is styled as
Joseph Guglielmo, on behalf of himself and all others similarly
situated, Plaintiff v. Boston Proper LLC, Defendant, Case No.
1:19-cv-10071 (S.D. N.Y., Oct. 30, 2019).
Boston Proper operates as an online retailer of apparel and
accessories for women.BN]
The Plaintiff is represented by:
Russel Craig Weinrib, Esq.
Stein Saks PLLC
285 Passaic St., Suite 5
Hakensack, NJ 07601
Tel: (201) 282-6500
Email: rweinrib@steinsakslegal.com
BOSTON SCIENTIFIC: Bid to Certify Classes in Sandoe TCPA Suit Nixed
-------------------------------------------------------------------
In the case, Sandoe, Plaintiff, v. Boston Scientific Corporation,
Defendant, Civil Action No. 18-11826-NMG (D. Mass.), Judge
Nathaniel M. Gorton of the U.S. District Court for the District of
Massachusetts denied the Plaintiff's (i) motion to certify two
classes of similarly situated individuals, and (ii) motion to
strike the expert testimony upon which Boston Scientific relies in
opposing class certification.
The case involves an alleged violation of the Telephone Consumer
Protection Act ("TCPA") by Boston Scientific regarding prerecorded
voice calls made to more than 200,000 phone numbers between 2014
and 2018. Sandoe received two prerecorded calls from Boston
Scientific, one in June, 2018 and one in July, 2018.
Boston Scientific is a medical device manufacturer and a healthcare
company that partners with health care clinics to host educational
seminars for clinic patients. Relevant to the case, it partnered
with a number of pain management clinics from 2014 through 2018 to
host several "Focus on Diagnosis" seminars to educate clinic
patients about treatment options for chronic pain management.
Boston Scientific provided varying levels of support for each
Seminar depending on the needs of the hosting clinic.
Boston Scientific began offering to make invitation calls for the
Seminars on behalf of partner clinics in late 2014. It partnered
with two vendors to transmit prerecorded voice messages inviting
clinic patients to the Seminars. Boston Scientific was involved in
providing guidance as to which patients the clinics should invite
but the ultimate list of invitees was the decision of the clinic
physicians. It made between one and three calls to each invitee.
If an individual answered the first call and responded
affirmatively or negatively, he or she did not receive any
additional calls.
Sandoe received two prerecorded messages at his cell phone number
intended for S.B., a patient of Spine Works Institute. Spine Works
partnered with Boston Scientific to host a Seminar in July, 2018,
and intended to invite S.B. The telephone number S.B. had provided
to Spine Works, however, had been reassigned to Mr. Sandoe. Mr.
Sandoe testified that he answered both calls and called Spine Works
to request that it stop calling him. The Plaintiff's phone records
do not, however, show any outbound calls to Spine Works.
At the time Mr. Sandoe received the two prerecorded calls, his
number was listed on the National Do-Not-Call Registry. The
Plaintiff testified that he did not register the number and only
learned that it was on the National Do-Not-Call Registry from his
attorneys in connection with the case.
Plaintiff Mr. Sandoe seeks certification of the following two
classes:
a. Prerecorded No Consent Class: All persons in the United
States who from four years prior to the filing of the action
through the present (1) the Defendant (or an agent acting on behalf
of the Defendant) called, (2) using a prerecorded voice message,
(3) where such person was not listed in the Defendant's records as
the intended recipient of the call.
b. Do Not Call Registry Class: All persons in the United
States who from four years prior to the filing of the action
through the present (1) the Defendant (or an agent acting on behalf
of the Defendant) called more than one time, (2) within any
12-month period, (3) where the person's telephone number had been
listed on the National Do Not Call Registry for at least 30 days,
(4) to invite them to a Boston Scientific educational event, (5)
where such person was not listed in the Defendant's records as the
intended recipient of the call.
The Plaintiff proffers expert Anya Verkhovskaya to testify
regarding the process she used to identify proposed class members.
After twice supplementing her report (the first report contained an
error in the data and the second report contained a glitch in the
code) Ms. Verkhovskaya identified as wrong numbers approximately
15% of a sample set of 9,000 telephone numbers.
Boston Scientific submitted a rebuttal report of its expert, Mr.
Jan Kostyun, who opines that Ms. Verkhovskaya's methodology and
analysis is unreliable, unsupportable, flawed and inconsistent.
Specifically, Mr. Kostyun criticizes the reverse-append process as
1) failing properly to identify even the named Plaintiff as a class
member without individualized inquiry and 2) using the "fuzzy"
period for no justifiable reason. Mr. Kostyun ultimately concludes
that Ms. Verkhovskaya's methodology cannot reliably identify
members of the proposed classes.
Judge Gorton holds that even if both proposed classes were to
satisfy the requirements of Rule 23(a), the Plaintiff has failed to
demonstrate that the members of the proposed classes are
ascertainable and that common issues predominate under Rule
23(b)(3).
First, the Judge explains that where testimony is genuinely
challenged and relevant to an element of a party's affirmative
case, however, a class cannot be certified without providing the
defendant an opportunity to litigate its defenses. The consent is
a defense to the TCPA claim of each member of the putative class.
The Defendant has a right to challenge, and has expressly stated
its intention to do so, any submitted affidavits purporting to
self-identify as class members on the ground of consent. As a
result, the challenged affidavits would be inadmissible and each of
the thousands of putative class members would be subject to
cross-examination at trial. Such a procedure has been expressly
rejected in this Circuit as a means for identifying class members.
Although he is convinced that the Plaintiff has failed to establish
that the proposed classes are ascertainable, Judge Gorton need not
definitively resolve that issue because he finds that the Plaintiff
has not demonstrated that common issues predominate under Rule
23(b)(3).
Second, the Judge finds that the Plaintiff has not met his burden
of demonstrating that common issues predominate. As he discussed,
consent is a defense under the TCPA. The universe of potential
class members includes only individuals who are associated with
telephone numbers that Boston Scientific and its partner clinics
believed to be registered to clinic patients. This is not a case
where the defendant engaged in "random robocalling." Indeed, the
Plaintiff does not dispute that intended recipients are excluded
from the potential class.
The Plaintiff has also failed to demonstrate that common proof can
be used to establish 1) whether the varying messages for each of
the Seminars were health care messages or telephone solicitations,
2) whether a landline or a cell phone was called, 3) whether the
prerecorded message was actually transmitted and 4) whether the
individual who received the call was the individual who registered
his or her name on the Do-Not-Call Registry. Accordingly, the
Plaintiff has not satisfied its burden of demonstrating that common
issues predominate under Rule 23(b)(3), rules the Court.
The Plaintiff moves to strike the testimony of Boston Scientific's
proposed expert Mr. Kostyun. Judge Gorton holds that the Defendant
has demonstrated that Mr. Kostyun's testimony is sufficiently
relevant and reliable to qualify as expert testimony under Rule
702. Mr. Kostyun has 35 years of experience in the
telecommunications industry and has submitted expert testimony on
TCPA issues in federal courts during the past ten years. Moreover,
Mr. Kostyun employed virtually the same methodology as the
Plaintiff's expert but reached a contrary conclusion based on
testing the opinions of the Plaintiff's expert against publicly
accessible resources. Accordingly, the Plaintiff's motion to
strike Mr. Kostyun's testimony will be denied.
For the forgoing reasons, Judge Gorton denied the Plaintiff's (i)
motion to certify two classes of similarly situated individuals,
and (ii) motion to strike the expert testimony upon which Boston
Scientific relies in opposing class certification.
A full-text copy of the Court's Oct. 23, 2019 Memorandum & Order is
available at https://is.gd/422uUv from Leagle.com.
Steven Sandoe, Plaintiff, represented by Avi R. Kaufman --
kaufman@kaufmanpa.com -- Kaufman P.A., pro hac vice & Jason R.
Campbell.
Boston Scientific Corporation, Defendant, represented by 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, W. Daniel Deane --
ddeane@nixonpeabody.com -- Nixon Peabody LLP & Troy K. Lieberman --
tlieberman@nixonpeabody.com -- Nixon Peabody LLP.
BUFFALO EXCHANGE: Wu Files ADA Suit in E.D. New York
----------------------------------------------------
A class action lawsuit has been filed against Buffalo Exchange,
LTD. The case is styled as Kathy Wu on behalf of himself and all
other persons similarly situated, Plaintiff v. Buffalo Exchange,
LTD, Defendant, Case No. 1:19-cv-06177 (E.D.N.Y., Oct. 31, 2019).
The Plaintiff filed the case under the Americans with Disabilities
Act.
Buffalo Exchange is a privately owned, family-operated fashion
resale retailer that buys and resells used clothing.[BN]
The Plaintiff is represented by:
Darryn G Solotoff, Esq.
Law Office of Darryn G Solotoff PLLC
100 Quentin Roosevelt Boulevard, Ste 280
Garden City, NY 11530
Phone: (516) 317-2453
Fax: (516) 706-4692
Email: ds@lawsolo.net
BUILD-A-BEAR: Website Not Accessible to Blind, Desalvo Alleges
--------------------------------------------------------------
BRETT DESALVO, individually and on behalf of all others similarly
situated, Plaintiff v. BUILD-A-BEAR WORKSHOP, INC.; and Defendants,
Case No. 2:19-cv-08609-MWF-JEM (C.D. Cal., Oct. 7, 2019) alleges
violation of the Americans with Disabilities Act.
The Plaintiff alleges in the complaint that the Defendant's
website, https://www.buildabear.com/ is not fully or equally
accessible to blind and visually-impaired consumers in violation of
the Americans with Disabilities Act. The Plaintiff seeks a
permanent injunction to cause a change in the Defendant's corporate
policies, practices, and procedures so that the Defendant's website
will become and remain accessible to blind and visually-impaired
consumers.
Build-A-Bear Workshop, Inc. is an interactive and entertainment
mall-based retailer that invites guests to create their own
customized stuffed animals through a bear-making process. The
Company serves customers worldwide. [BN]
The Plaintiff is represented by:
Thiago Coelho, Esq.
Bobby Saadian, Esq.
WILSHIRE LAW FIRM
3055 Wilshire Blvd., 12th Floor
Los Angeles, CA 90010
Telephone: (213) 381-9988
Facsimile: (213) 381-9989
CAPITAL ONE: Court Denies Stay Pending Appeal in McFarland Suit
---------------------------------------------------------------
Judge Theodore Chuang of the U.S. District Court for the District
of Maryland issued a Memorandum Opinion denying Defendant's Motion
to Stay Pending Appeal in the case captioned ANTHONY McFARLAND, On
Behalf of Himself and All Others Similarly Situated, Plaintiff, v.
CAPITAL ONE, N.A., d/b/a Capital One Auto Finance, Defendant, Civil
Action No. TDC-18-2148. (D. Md.).
Plaintiff Anthony McFarland filed the putative class action against
Defendant Capital One, N.A. in the Circuit Court for Prince
George's County, Maryland, alleging that in financing the purchase
of vehicles, Capital One has charged and collected convenience fees
in violation of state law.
After Capital One removed the case to federal court, the Maryland
District Court granted McFarland's Motion to Remand and ordered the
case remanded to state court. Capital One has since appealed that
ruling to the United States Court of Appeals for the Fourth
Circuit. Pending before the District Court is Capital One's Motion
to Stay Pending Appeal.
On review, the District Court finds that Capital One has not made a
strong showing of likely success on the merits.
Particularly where the Fourth Circuit is required to rule on the
appeal within 60 days of accepting it, such that any parallel
litigation in state court would be of limited duration, the
District Court concludes that Capital One has not identified
irreparable harm that would result in the absence of a stay.
Moreover, under the case's circumstances, where the burden is on
the party seeking the stay to establish that the factors are all
met, Capital One has failed to demonstrate that McFarland will not
be harmed by the issuance of a stay, the District Court opines.
Finally, the District Court states that the public interest factor,
even if viewed as favoring a stay, is insufficient to support a
finding that Capital One has met its burden on the Motion.
According, Judge Chuang denies Capital One's Motion to Stay Pending
Appeal.
A full-text copy of the District of Court's October 10, 2019
Memorandum Opinion is available at https://tinyurl.com/y3lc7p5c
from Leagle.com
Anthony McFarland, On behalf of himself and all others similarly
situated, Plaintiff, represented by Cory L. Zajdel -
clz@zlawmaryland.com - Z Law LLC & David Matthew Trojanowski -
DMT@ZLAWMARYLAND.COM - Z Law, LLC.
Capital One, N.A., doing business as Capital One Auto Finance,
Defendant, represented by Syed Mohsin Reza -
mohsin.reza@troutman.com - Troutman Sanders LLP & Jonathan S.
Hubbard , Troutman Sanders LLP, pro hac vice.
CENTURY 21: Wu Files ADA Suit in E.D. New York
----------------------------------------------
A class action lawsuit has been filed against Century 21 Department
Stores LLC. The case is styled as Kathy Wu on behalf of himself and
all other persons similarly situated, Plaintiff v. Century 21
Department Stores LLC, Defendant, Case No. 1:19-cv-06176 (E.D.N.Y.,
Oct. 31, 2019).
The Plaintiff filed the case under the Americans with Disabilities
Act.
Century 21 Department Stores LLC is a chain of department stores in
the northeastern United States, headquartered in New York
City.[BN]
The Plaintiff is represented by:
Darryn G Solotoff, Esq.
Law Office of Darryn G Solotoff PLLC
100 Quentin Roosevelt Boulevard, Ste 280
Garden City, NY 11530
Phone: (516) 317-2453
Fax: (516) 706-4692
Email: ds@lawsolo.net
CHRYSLER GROUP: Class Certification Bid in Tomassini Underway
-------------------------------------------------------------
In the class action lawsuit styled as ROBERT TOMASSINI and THOMAS
HROMOWYK, on behalf of themselves and others similarly situated,
the Plaintiffs, vs. CHRYSLER GROUP LLC (n/k/a FCA US LLC), the
Defendant, Case No. 3:14-cv-01226-MAD-ML (N.D.N.Y.), Atty. Nicholas
A. Migliaccio submits declaration in support of Plaintiff's Motion
for Class Certification.
Atty. Migliaccio declares that he's an attorney licensed to
practice in the United States District Court for the Northern
District of New York. He is also a Partner with the law firm of
Migliaccio & Rathod LLP, one of the firms representing Plaintiff
and the putative class in the action.
On Sept. 8, 2014, Plaintiff Tomassini commenced the putative class
action in state court, and the Defendant removed to the Northern
District of New York on Oct. 8, 2014.[CC]
COLD STONE: Lopez Asserts Breach of Disabilities Act
----------------------------------------------------
Cold Stone Creamery Restaurants, L.L.C. is facing a class action
lawsuit filed pursuant to the Americans with Disabilities Act. The
case is styled as Victor Lopez and on behalf of all other persons
similarly situated, Plaintiff v. Cold Stone Creamery Restaurants,
L.L.C., Defendant, Case No. 1:19-cv-10081 (S.D. N.Y., Oct. 30,
2019).
Cold Stone Creamery is an American ice cream parlor chain.[BN]
The Plaintiff is represented by:
Bradly Gurion Marks, Esq.
The Marks Law Firm PC
175 Varick Street 3rd Floor
New York, NY 10014
Tel: (646) 770-3775
Fax: (646) 867-2639
Email: bmarkslaw@gmail.com
COLONIAL FIRST: Maurice Blackburn Files "MySuper" Class Action
--------------------------------------------------------------
The Australia Associated Press reports that a law firm says it has
filed class action proceedings against Colonial First State
alleging more than 100,000 superannuation fund members lost money
because the Commonwealth Bank-owned wealth manager was too slow to
implement government reforms.
Maurice Blackburn says it has filed proceedings in Victoria's
Federal Court alleging Colonial failed to move $3.2 billion of
members' money into a lower-cost, higher-performing MySuper product
in a timely way, acting against the best interest of members and
contravening superannuation law.
MySuper was introduced as part of superannuation reforms announced
by the federal Labor government in 2011, creating a low-cost
default super fund designed to ensure people with low balances were
not charged excessive fees.
Colonial First State is owned by the Commonwealth Bank. (AAP)
"MySuper was introduced to protect the retirement outcomes of
Australians by ensuring that consumers weren't losing money on
unnecessary fees and products," principal lawyer Miranda Nagy
said.
"Colonial had a legal obligation over and above a basic moral
obligation to move default member balances into MySuper at the time
that best met their members' needs, not their own."
Maurice Blackburn said it filed the action against Colonial First
State Investments Limited, the trustee of the Colonial First State
FirstChoice Superannuation Trust, and former Colonial former
executive director Linda Elkins.
"The contraventions at the heart of this case resulted in members
in FirstChoice Employer Super paying higher fees and receiving a
lower investment return for an extended period of time, when they
could have been in Colonial's cheaper, better-performing MySuper
product earlier," Ms Nagy said.
"The whole point of the MySuper reforms was to make sure that
millions of everyday Australians who hadn't made an active decision
about their super, were not 'getting charged for valet parking when
they were taking the train', as minister (Bill) Shorten said at the
time."
The class action is the latest legal hit for Commonwealth Bank.
Commonwealth Bank and Colonial First State were hit by a class
action law suit last year over allegedly uncompetitive
superannuation returns, while CBA's CommInsure life insurance unit
was last month charged with 87 counts of unlawfully selling life
insurance policies over the phone.
And Maurice Blackburn is already running a shareholder class action
related to the share price fall related to AUSTRAC's
money-laundering allegations against CBA, which resulted in the
largest civil penalty in Australian corporate history. [GN]
COMPLETE BUSINESS: Ct. Allows Filing of 2nd Amended Fleetwood Suit
-------------------------------------------------------------------
In the case, FLEETWOOD SERVICES, LLC, et al., v. COMPLETE BUSINESS
SOLUTIONS GROUP, INC., doing business as PAR FUNDING, Civil Action
No. 18-268 (E.D. Pa.), Judge Juan R. Sanchez of the U.S. District
Court for the Eastern District of Pennsylvania granted the
Plaintiffs leave to file their Second Amended Complaint after they
remove their request for injunctive and declaratory relief.
Plaintiffs Fleetwood Services, Robert Fleetwood, and Pamela
Fleetwood filed a Complaint alleging they were the victims of a
financial fraud perpetrated by Defendants Complete Business
Solutions Group, Inc. and John and Jane Doe investors.
Fleetwood Services is a golf course construction company owned by
Robert and Pamela Fleetwood. Complete Business is a company that
buys future receivables from small businesses. In January 2017,
Complete Business allegedly approached Fleetwood Services with a
plan to consolidate Fleetwood Services' debt. Fleetwood Services
agreed to the consolidation plan. To implement the plan, the two
companies signed an agreement in which Complete Business paid
$370,000 for $547,600 of future receivables.
According to Fleetwood Services, the agreement was not a purchase
of future receivables. Instead, it alleges, the agreement was
actually a loan designed to keep Fleetwood Services in never-ending
debt. The Plaintiffs allege Complete Business demanded daily
payments unrelated to any future receivables. They also allege
Complete Business charged usurious interest rates and unauthorized
fees. When Fleetwood Services got behind on its payments, Complete
Business allegedly called Mr. and Mrs. Fleetwood and threatened to
take away their business and their personal assets if they did not
pay. In July 2017, Fleetwood paid back the money it owed to
Complete Business with a loan from another company.
On Jan. 22, 2018, the Plaintiffs filed a Complaint in the case.
Complete Business moved to dismiss. The Plaintiffs responded to
the motion to dismiss by filing their First Amended Complaint. The
First Amended Complaint included claims for violations of Texas
usury laws, fraud, negligent misrepresentation, damages pursuant to
a term in the contract, and violations of the Racketeer Influence
and Corrupt Organizations Act ("RICO"). Complete Business then
moved to dismiss the First Amended Complaint. On March 29, 2019,
the Court dismissed the contract claim in the First Amended
Complaint, but allowed the rest of the Complaint to go forward.
On July 19, 2019, the Plaintiffs sought leave to file a Second
Amended Complaint. The Second Amended Complaint included many of
the same claims as the First Amended Complaint: violations of Texas
usury law, fraud, and RICO. It also removed some of the claims in
the First Amended Complaint; it removed the negligent
misrepresentation claim and a claim relying on an inapplicable
Texas law. The Second Amended Complaint added a new claim for
attorneys' fees and a new request for injunctive and declaratory
relief. Finally, it included additional allegations such as: facts
tending to show the agreement the parties signed was
unconscionable; facts tending to show the agreement the parties
signed was a loan rather than a purchase agreement for future
receivables; and class action allegations.
To demonstrate that Complete Business treated its agreements with
businesses like loans instead of purchases of future receivables,
the Plaintiffs included allegations related to a Bloomberg article.
This article focused on Complete Business's "mob-like intimidation
tactics" when a business cannot pay. According to the Plaintiffs,
if the agreements were actually for future receivables as they
purported to be, Complete Business would have contacted the
business's customers rather than the business itself.
Complete Business opposes the changes in the Second Amended
Complaint. It argues two changes in the proposed Second Amended
Complaint are futile: the new class action allegations and the new
request for declaratory and injunctive relief. Complete Business
also argues the allegations relying on the Bloomberg article (in
paragraph 91-97 of the Second Amended Complaint) should be stricken
under Rule 12(f) as "immaterial, impertinent, or scandalous." It
urges the Court to deny the Plaintiffs leave to make those three
changes.
Judge Sanchez holds that the Plaintiffs' amendment adding class
allegations is not futile. Complete Business makes two arguments
to the contrary, but neither is persuasive. First, Complete
Business argues Plaintiffs cannot represent the class because their
claims are barred by Texas's voluntary payment rule. Second,
Complete Business argues the class allegations are futile because
of the class action waiver in the parties' contract.
Judge Sanchez holds that at this stage, the Plaintiffs have alleged
enough facts to be entitled to further discovery regarding whether
the contract was unconscionable. They allege Complete Business
fraudulently coerced them into signing an agreement with unfair and
one-sided terms. Regarding procedural unconscionability, they
allege Complete Business falsely represented the nature and purpose
of the contract. They also allege Complete Business took advantage
of Fleetwood's "desperate financial condition".
Regarding substantive unconscionability, the Judge finds that the
contract's provisions included: a provision giving Complete
Business the irrevocable right to withdraw money directly from
Fleetwood's bank accounts; a provision giving Complete Business the
power of attorney to act as if it were Fleetwood, including
collecting checks and signing invoices in Fleetwood's name; a
provision preventing Fleetwood from transferring, moving or selling
the business or any assets without permission from Complete
Business; and a one-sided attorneys' fees provision obligating
Fleetwood to pay Complete Business's attorneys' fees if Complete
Business won any litigation but not obligating Complete Business to
pay Fleetwood's attorneys' fees if Fleetwood won. Given the
allegations of substantive and procedural unconscionability, the
Judge will not foreclose discovery on the unconscionability of the
contract. If the Plaintiffs move to certify a class, he will have
an opportunity to address the contract's unconscionability with the
benefit of discovery.
Next, the Judge addresses the Plaintiffs' amendment requesting
injunctive and declaratory relief and finds the amendment would be
futile. A party seeking an injunction must prove (1) it will
suffer irreparable injury, (2) no remedy available at law could
adequately remedy that injury, (3) the balance of hardships tips in
its favor, and (4) an injunction would not disserve the public
interest. Declaratory relief can be appropriate to settle actual
controversies before they ripen into violations of a law or a
breach of duty. Like injunctive relief, declaratory judgments are
by definition prospective in nature. In other words, both
injunctive and declaratory relief prevent future harm.
The Plaintiffs will not suffer any future harm. In their complaint,
they conceded they have already paid Complete Business the money
they owed under the contract. Since they have already paid off the
contract, there is no likelihood they will have to pay more in the
future. At oral argument, they conceded they could not prove they
would suffer any future irreparable harm. Instead, they argued
they did not have to prove future irreparable harm because they are
seeking an injunction under RICO. Because the Plaintiffs admit
they cannot show any future harm, they would not be entitled to
injunctive relief under RICO even if such relief were available for
the private plaintiffs, holds the Court.
Finally, Judge Sanchez will deny Complete Business' request to
strike the Second Amended Complaint's allegations about the
Bloomberg article. The Bloomberg allegations he says do not meet
the high standard for a motion to strike. These allegations are
related to the case because they tend to support the idea that
Complete Business treated the contracts as loans rather than as
contracts for future receivables. The allegations are also not
"impertinent or scandalous" under Rule 12(f). They are based on a
public report from a reputable news source. They are not
unsupported allegations nor do they maliciously publicize
previously private information. The Judge will therefore allow the
Plaintiffs to include the Bloomberg allegations in their Second
Amended Complaint.
Judge Sanchez concludes that the amendment adding the class
allegations is not futile, the amendment requesting injunctive and
declaratory relief is futile, and the Bloomberg claims should not
be stricken. He therefore gave the Plaintiffs leave to file their
Second Amended Complaint after they remove their request for
injunctive and declaratory relief.
A full-text copy of the Court's Oct. 23, 2019 Memorandum is
available at https://is.gd/9ovzM5 from Leagle.com.
FLEETWOOD SERVICES, LLC, ROBERT L. FLEETWOOD & PAMELA A. FLEETWOOD,
INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED,
Plaintiffs, represented by MATTHEW K. DAVIS, JONES DAVID & JACKSON
PC, WENDY D. DAWER -- wdawer@jonesdavis.com -- JONES DAVIS &
JACKSON PC, JUSTIN E. PROPER -- properj@whiteandwilliams.com --
WHITE & WILLIAMS LLP & SHANE R. HESKIN --
heskins@whiteandwilliams.com -- WHITE & WILLIAMS LLP.
COMPLETE BUSINESS SOLUTIONS GROUP, INC., doing business as PAR
FUNDING, Defendant, represented by BRETT ADAM BERMAN --
bberman@foxrothschild.com -- FOX ROTHSCHILD LLP, CYNTHIA A. CLARK,
JOHN P. HARTLEY, Complete Business Solutions Group & JONATHAN DAVID
CHRISTMAN -- jchristman@foxrothschild.com -- Fox Rothschild LLP.
CONSTANT CONTACT: Warner Sues Over Illegal, Unsolicited Marketing
-----------------------------------------------------------------
William Warner, individually and on behalf of all others similarly
situated v. CONSTANT CONTACT, INC., Case No. 0:19-cv-62756-XXXX
(S.D. Fla., Nov. 6, 2019), arises from the Defendant's violations
of the Telephone Consumer Protection Act.
To solicit new clients, the Defendant engages in unsolicited
marketing with no regard for privacy rights of the recipients of
those messages. The Defendant caused thousands of unsolicited text
messages to be sent to the cellular telephones of the Plaintiff and
Class Members, causing them injuries, including invasion of their
privacy, aggravation, annoyance, intrusion on seclusion, trespass,
and conversion. Through this action, the Plaintiff seeks injunctive
relief to halt the Defendant's illegal conduct. The Plaintiff also
seeks statutory damages on behalf of himself and Class Members, and
any other available legal or equitable remedies resulting from the
illegal actions of the Defendant.
The Plaintiff is a natural person and is a resident of Miami-Dade
County, Florida.
The Defendant is an online marketing company headquartered in
Burlington, Massachusetts.[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
Phone: 954-907-1136
Fax: 855-529-9540
Email: tom@jibraellaw.com
jibrael@jibraellaw.com
CONVERSE INC: Delacruz Sues Over Blind-Inaccessible Gift Cards
--------------------------------------------------------------
Emanuel Delacruz, on behalf of himself and all others similarly
situated v. CONVERSE INC., Case No. 1:19-cv-10293-GBD (S.D.N.Y.,
Nov. 5, 2019), arises from the Defendant's failure to sell store
gift cards that contain writing in Braille so they will be fully
accessible to and independently usable by the Plaintiff and other
blind or visually-impaired people.
The Defendant's denial of full and equal access to its store gift
cards, and, therefore, denial of its products and services and in
conjunction with its physical locations, is a violation of the his
rights under the Americans with Disabilities Act, the Plaintiff
contends. Because the Defendant's store gift cards are not equally
accessible to blind and visually-impaired consumers, it violates
the ADA. The Plaintiff seeks a permanent injunction to cause a
change in the Defendant's corporate policies, practices, and
procedures so that its store gift cards will become and remain
accessible to blind and visually-impaired consumers.
The Plaintiff is a visually-impaired and legally blind person, who
requires Braille, which is a tactile writing system, to read
written material, including books, signs, store gift cards, credit
cards, etc.
The Defendant operates multiple Converse retail stores locations in
the State of New York.[BN]
The Plaintiff is represented by:
Jeffrey M. Gottlieb, Esq.
Dana L. Gottlieb, Esq.
GOTTLIEB & ASSOCIATES
150 East 18th Street, Suite PHR
New York, NY 10003-2461
Phone: (212) 228-9795
Fax: (212) 982-6284
DIRECTV LLC: Violates Fair Credit Reporting Act, Nash Suit Says
---------------------------------------------------------------
TONI NASH, on behalf of herself and all others similarly situated,
Plaintiff v. DIRECTV, LLC, Defendant, Case No. 2:19-cv-09032 (C.D.
Cal., Oct. 21, 2019), alleges that the Defendant violated the Fair
Credit Reporting Act.
In June 2018, Ms. Nash had the occasion to review her credit report
at which time she noticed that DirecTV had pulled her credit on
August 29, 2017. She contends she did not initiate a transaction
with DirecTV, nor gave it permission to pull her credit. Indeed,
Ms. Nash does not now, nor has she ever had a relationship with
DirecTV or otherwise sought credit from it.
As a result of DirecTV's conduct, Ms. Nash alleges she has suffered
injury to her ability to obtain credit. In addition, she asserts,
DirecTV has not promised to delete the information, or refrain from
using it in any way, nor has DirecTV disclosed why it obtained the
information, who it was disclosed to, how it was and is being used,
and how it monetized the information (meaning how it sold or
obtained economic benefit from Plaintiff's information).
The Plaintiff also suffered economic damage from DirecTV's taking
unauthorized possession of her information and obtaining economic
benefit from the unauthorized taking and use of her property, which
belongs to her. DirecTV routinely and willfully makes such credit
inquiries on consumers without any permissible purpose or
authorization in violation of the FCRA; takes unauthorized
possession of the consumers' information and uses it for economic
benefit without payment or reimbursement to the consumers, the
lawsuit says.
The Plaintiff, on behalf of herself and the putative class, seeks
actual damages, statutory damages, punitive damages, attorney's
fees, costs and expenses for the Defendant's violations of the
FCRA.
The FCRA was promulgated to ensure fair and accurate reporting of
credit, promote efficiency in banking, and protect consumers'
privacy. Given the effect a credit inquiry can have on a consumer's
credit score, the FCRA narrowly delineates the circumstances under
which a third party may obtain a consumer's credit. Unless a
consumer has initiated a credit transaction with a person, or a
person has an otherwise statutorily permissible purpose, they are
not allowed to pull a consumer's credit report. Doing so violates
the FCRA.[BN]
The Plaintiff is represented by:
Jeff Westerman, Esq.
WESTERMAN LAW CORP.
1875 Century Park East, Suite 2200
Los Angeles, CA 90067
Telephone: (310) 698-7450
E-mail: jwesterman@jswlegal.com
- and -
John A. Yanchunis, Esq.
Jonathan B. Cohen, Esq.
MORGAN & MORGAN
COMPLEX LITIGATION GROUP
201 N. Franklin Street, 7th Floor
Tampa, FL 33602
Telephone: 813/223-5505
Facsimile: (813) 223-5402
E-mail: jyanchunis@forthepeople.com
jcohen@forthepeople.com
DYSON DIRECT: Tidwell Seeks OT Wages for Hourly-Rate Employees
--------------------------------------------------------------
ANITA TIDWELL and DION GREEN on behalf of themselves and all other
plaintiffs similarly situated, Plaintiffs v. DYSON DIRECT, INC.,
Defendant, Case No. 1:19-cv-06929 (N.D. Ill., Oct. 21, 2019), seeks
overtime wages under the Fair Labor Standards Act and the Illinois
Minimum Wage Law.
The Plaintiffs worked for the Defendants as hourly-rate employees
within the past three years in the state of Illinois. The
Plaintiffs allege that the Defendant did not pay them and similarly
situated employees proper overtime wages of one and one-half time
their regular rate of pay for all hours worked above 40 hours in a
work week. By way of example, the Defendant did not pay Ms. Tidwell
one and one-half times her full regular rate of pay for all hours
worked in excess of 40 in an individual work weeks for the pay
period of November 17, 2018, through November 20, 2018, or December
3, 2016, through December 16, 2016.
While certain overtime compensation was paid, the Defendant failed
to pay for all hours worked over forty in a work week at one and
one-half times her regular rate of pay, the lawsuit says.
Dyson is an affiliate of Dyson Ltd., a British technology company
established in the United Kingdom in 1991. It designs and
manufactures household appliances such as vacuum cleaners, air
purifiers, hand dryers, bladeless fans, heaters, hair dryers, and
lights. As of February 2018, Dyson, Ltd. had more than 12,000
employees worldwide. Dyson Direct, Inc. is an Illinois corporation
that operates at multiple locations in this Judicial District,
including in Chicago and Aurora, Illinois. The Aurora, Illinois
facility location handles approximately 30,000 inquiries per day
and has employed hundreds of workers.[BN]
The Plaintiffs are represented by:
David J. Fish, Esq.
John Kunze, Esq.
THE FISH LAW FIRM P.C.
200 E 5th Ave., Suite 123
Naperville, IL 60563
Telephone: (630)355-7590
Facsimile: (630)778-0400
ELI LILLY: 7th Cir. Appeal in Medical Mutual of Ohio Suit Pending
-----------------------------------------------------------------
Eli Lilly and Company said in its Form 10-Q Report filed with the
Securities and Exchange Commission on October 25, 2019, for the
quarterly period ended September 30, 2019, that Medical Mutual of
Ohio's appeal from the order dismissing its lawsuit is currently
pending before the U.S. Court of Appeals for the Seventh Circuit.
The company was named as a defendant in approximately 250 Axiron
personal injury/product liability lawsuits in the U.S. involving
approximately 250 plaintiffs. In some of the cases, other
manufacturers of testosterone are named as co-defendants.
Nearly all of these lawsuits have been consolidated in a federal
multi-district litigation in the U.S. District Court for the
Northern District of Illinois. A small number of lawsuits have been
filed in state courts.
The cases generally allege cardiovascular and related injuries.
The company has reached agreement on a settlement framework that
provides for a comprehensive resolution of nearly all of these
personal injury claims alleging cardiovascular and related injuries
from Axiron treatment.
Eli Lilly said, "While we are in the process of settling these
cases, there can be no assurances, however, that a final settlement
of all cases will be reached."
The company has also been engaged in litigation with Medical Mutual
of Ohio ("MMO"), which filed a class action complaint against
multiple manufacturers of testosterone products, including the
company, in the U.S. District Court for the Northern District of
Illinois, on behalf of third-party payers who paid for those
products and is seeking damages under the Federal Racketeer
Influenced and Corrupt Organizations Act. MMO's motion for class
certification was denied, and in February 2019, the District Court
granted summary judgment in favor of defendants, dismissing MMO's
lawsuit with prejudice. MMO's appeal of this dismissal is currently
pending before the U.S. Court of Appeals for the Seventh Circuit,
and an oral argument is scheduled for November 2019.
Eli Lilly said, "We continue to believe all of these lawsuits are
without merit and are defending against them vigorously."
No further updates were provided in the Company's SEC report.
Eli Lilly and Company discovers, develops, manufactures, and
markets pharmaceutical products worldwide. The company operates in
two segments, Human Pharmaceutical Products and Animal Health
Products. Eli Lilly and Company was founded in 1876 and is
headquartered in Indianapolis, Indiana.
ELI LILLY: Continues to Defend Suits over Insulin Pricing
---------------------------------------------------------
Eli Lilly and Company said in its Form 10-Q Report filed with the
Securities and Exchange Commission on October 25, 2019, for the
quarterly period ended September 30, 2019, that the company
continues defend several class action suits related to sales of
insulin.
The company, along with Sanofi and Novo Nordisk, are named as
defendants in a consolidated purported class action lawsuit, In re.
Insulin Pricing Litigation, in the U.S. District Court of New
Jersey relating to insulin pricing. Plaintiffs seek damages under
various state consumer protection laws and the Federal Racketeer
Influenced and Corrupt Organization Act (federal RICO Act).
Separately, the company, along with Sanofi and Novo Nordisk, are
named as defendants in MSP Recovery Claims, Series, LLC et al. v.
Sanofi Aventis U.S. LLC et al., in the same court, seeking damages
under various state consumer protection laws, common law fraud,
unjust enrichment, and the federal RICO Act.
Also in the same court, the company, along with Sanofi and Novo
Nordisk, have been named as defendants in a purported class action
lawsuit, Prof'l Drug Co., Inc. & FWK Holdings, LLC v. Novo Nordisk
Inc. et al., seeking damages under the federal and New Jersey RICO
Acts.
The Minnesota Attorney General's Office filed a complaint against
the company, Sanofi, and Novo Nordisk, State of Minnesota v.
Sanofi-Aventis U.S. LLC et al., in the U.S. District Court of New
Jersey, alleging unjust enrichment, and violations of various
Minnesota state consumer protection laws and the federal RICO Act.
Additionally, the Kentucky Attorney General's Office filed a
complaint against the company, Sanofi, and Novo Nordisk,
Commonwealth of Kentucky v. Novo Nordisk, Inc. et al., in Kentucky
state court, alleging violations of the Kentucky consumer
protection law, false advertising, and unjust enrichment.
Eli Lilly said, "We believe all of these claims are without merit
and are defending against them vigorously."
Eli Lilly and Company discovers, develops, manufactures, and
markets pharmaceutical products worldwide. The company operates in
two segments, Human Pharmaceutical Products and Animal Health
Products. Eli Lilly and Company was founded in 1876 and is
headquartered in Indianapolis, Indiana.
EQUIFAX INC: Consolidated Securities Class Suit in Georgia Ongoing
------------------------------------------------------------------
Equifax Inc. said in its Form 10-Q Report filed with the Securities
and Exchange Commission on October 25, 2019, for the quarterly
period ended September 30, 2019, that the company continues to
defend a consolidated securities class action suit in the U.S.
District Court for the Northern District of Georgia.
A consolidated putative class action lawsuit alleging violations of
certain federal securities laws in connection with statements and
alleged omissions regarding the company's cybersecurity systems and
controls is pending against the company and its former Chairman and
Chief Executive Officer in the U.S. District Court for the Northern
District of Georgia.
The consolidated complaint seeks certification of a class of all
persons who purchased or otherwise acquired Equifax securities from
February 25, 2016 through September 15, 2017 and unspecified
monetary damages, costs and attorneys' fees.
The Company moved to dismiss the consolidated class action
complaint in its entirety. On January 28, 2019, the court dismissed
claims against certain individual defendants and claims challenging
certain statements, but allowed other claims against Equifax and
its former Chairman and Chief Executive Officer to proceed.
Pursuant to scheduling and case management orders issued by the
court, pre-trial proceedings, including discovery between the
parties, are moving forward on the remaining claims.
No further updates were provided in the Company's SEC report.
Equifax Inc. provides information solutions and human resources
business process outsourcing services for businesses, governments,
and consumers. The company operates through four segments: U.S.
Information Solutions (USIS), International, Workforce Solutions,
and Global Consumer Solutions. Equifax Inc. was founded in 1899 and
is headquartered in Atlanta, Georgia.
EQUIFAX INC: Settlement in Thomas Class Suit Wins Final Approval
----------------------------------------------------------------
Equifax Inc. said in its Form 10-Q Report filed with the Securities
and Exchange Commission on October 25, 2019, for the quarterly
period ended September 30, 2019, that the court in Mark William
Thomas, et al. v. Equifax Information Services LLC, has granted
final approval to the parties' settlement.
Equifax has been named as a defendant in 19 putative class action
lawsuits pending in federal courts across the country relating to
its reporting of civil judgments and tax liens on consumers’
credit files.
In October 2018, Equifax and the plaintiffs' attorneys who filed
the lawsuits reached an agreement in principle to settle the public
records-related claims at issue on behalf of a nationwide class of
consumers and the company accrued an estimate of $18.5 million for
its liability for these matters in the third quarter of 2018. The
amount accrued represents its best estimate of the liability
related to this matter.
The parties have filed notices of settlement in the pending
lawsuits, and on April 17, 2019, the plaintiffs filed a motion for
preliminary approval of the nationwide class action settlement in
the case titled Mark William Thomas, et al. v. Equifax Information
Services LLC. On September 13, 2019, the court granted final
approval of the settlement.
Equifax Inc. provides information solutions and human resources
business process outsourcing services for businesses, governments,
and consumers. The company operates through four segments: U.S.
Information Solutions (USIS), International, Workforce Solutions,
and Global Consumer Solutions. Equifax Inc. was founded in 1899 and
is headquartered in Atlanta, Georgia.
EQUILON ENTERPRISES: Not the Employer of Henderson, Cal. App. Holds
-------------------------------------------------------------------
In the case captioned BILLY R. HENDERSON, Plaintiff and Appellant,
v. EQUILON ENTERPRISES, LLC, Defendant and Respondent, Case No.
A151626 (Cal. App.), Judge Gabriel P. Sanchez of the Court of
Appeals of California for the First District, Division One,
affirmed the trial court's judgment granting Shell Oil's motion for
summary judgment.
Plaintiff and Appellant Billy Henderson brought a civil action for
wage and hour violations against Defendant and Respondent Equilon,
doing business as Shell Oil Products US, under a "joint employer"
theory of liability. Henderson's causes of action consisted of
failure to pay overtime compensation, failure to pay for missed
break periods, and unfair business practices.
Henderson commenced a class action in July 2010. The trial court
stayed the action under the common law doctrine of exclusive
concurrent jurisdiction due to the earlier filing of a related
class action lawsuit. In April 2016, Henderson filed a second
amended complaint removing the class action allegations and stating
individual claims for unpaid wages, statutory wage and
record-keeping penalties and interest, as well as restitution,
injunctive, and declaratory relief under Business and Professions
Code section 17200 et seq.
Henderson alleged he had been employed as the station manager of
several Shell-owned gasoline stations operated by Danville
Petroleum, Inc. He claimed he worked overtime and missed off-duty
meal and rest breaks without receiving compensation. He further
alleged that while he had been hired by Danville, Shell was liable
as his "joint employer" because Shell "both directly and indirectly
controlled the wages, hours or working conditions" of Danville's
employees.
Shell moved for summary judgment, asserting it could not be held
liable because Danville was Henderson's sole employer. Henderson
settled his claims against Danville and opposed Shell's motion for
summary judgment. After a hearing conducted on Jan. 12, 2017, the
trial court issued its opinion and order granting Shell's motion.
The judgment in favor of Shell was entered on March 30, 2017.
The appeal followed.
On review, Judge Sanchez concludes that Henderson has not presented
any triable issues of fact demonstrating the existence of a joint
employment relationship between Shell and appellant under the three
alternative definitions of employment set forth in Wage Order No.
7. Because no evidence demonstrates that Shell was Henderson's
employer, either solely or jointly, summary judgment was properly
granted, Judge Sanchez opines.
Accordingly, the Appeals Court upheld the trial court's judgment.
A full-text copy of the Appellate Court's Oct. 8, 2019 Order is
available at https://is.gd/uav5vg from Leagle.com.
Bleau Fox, PLC, Samuel T. Rees, Lichten & Liss-Riordan, P.C.,
Shannon E. Liss-Riordan -- sliss@llrlaw.com -- for Plaintiff and
Appellant.
Lafayette & Kumagai LLP, Gary T. Lafayette -- glafayette@lkclaw.com
-- Syusan T. Kumagai -- skumagai@lkclaw.com -- Barbara L. Lyons,
for Defendant and Respondent.
ESSEX PROPERTY: Bevan Sues over Improper Tenant Charges
-------------------------------------------------------
KATHERINE BEVAN, individually and on behalf of all others similarly
situated, Plaintiff v. ESSEX PROPERTY TRUST, INC.; and DOES 1
through 50, Defendants, Case No. 19CV356296 (Cal. Super., Santa
Clara Cty., Oct. 8, 2019) is an action against the Defendants for
alleged violation of the Unfair Competition Law.
The Plaintiff alleges in the complaint that the Defendants acted
intentionally and with deliberate indifference and conscious
disregard to the rights of all tenants in charging their tenants
for apartment cleaning, unnecessary floor sealant, and other
repairs regardless of the actual condition of the apartment unit,
and failure to provide the requisite documents showing charges
incurred and deducted by the Defendants from the tenant's security
deposits.
Essex Property Trust, Inc. is a self-administered and self-managed
real estate investment trust company. The Company specializes in
acquiring, developing, and managing multifamily residential
properties. Essex has ownership interests in residential properties
and commercial properties located in the States of California and
Washington. [BN]
The Plaintiff is represented by:
Kenneth H. Yoon, Esq.
Stephanie E. Yasuda, Esq.
Brian G. Lee, Esq.
YOON LAW, APC
One Wilshire Blvd., Suite 2200
Los Angeles, CA 90017
Telephone: (213) 612-0988
Facsimile: (213) 947-1211
E-mail: kyoon@yoonlaw.com
syasuda@yoonlaw.com
blee@yoonlaw.com
- and -
Charles Hargraves, Esq.
KEESE HARGRAVES LLP
2780 Skypark Drive, Suite 260
Torrance, CA 90505
Telephone: (424) 247-7280
E-mail: charlie@keesehargraves.com
EXPEDITORS INT'L: Wroblewski Sues Over Collection of Biometrics
---------------------------------------------------------------
ANDREW WROBLEWSKI, individually and on behalf of all others
similarly situated, Plaintiff v. EXPEDITORS INTERNATIONAL OF
WASHINGTON, INC., a Washington corporation, Defendant, Case No.
2019CH12183 (Ill. Cir., Oct. 21, 2019), alleges that the Defendant
violated the Illinois Biometric Information Privacy Act.
Despite the substantial privacy risks created by the collection and
storage of biometric data, and the decade-old prohibition on
collecting and retaining biometric data in Illinois without
informed consent, the Defendant uses a biometric time-tracking
system that requires workers at one of the Defendant's locations to
use their fingerprints as a means of authentication. When its
Illinois workers begin their time with the Defendant, the Defendant
requires them to scan their fingerprints into a time management
database.
The Defendant's scanning and retention of its workers' fingerprints
without informed consent is clearly unlawful in Illinois.
The Plaintiff seeks an order:
-- declaring that the Defendant's conduct violates BIPA;
-- requiring that the Defendant cease the unlawful activities
and destroy the biometric data it unlawfully collected; and
-- awarding the Plaintiff and the Class statutory damages of
$1,000 for each negligent violation of BIPA and $5,000 for
each violation found to be willful or reckless, plus their
attorneys' fees and costs.
Since 2008, it has been illegal in Illinois to collect an
individual's biometric information or identifiers-such as a
fingerprint, voiceprint, or faceprint-without the individual's
informed, written consent.
The Defendant operates industrial warehouses located at 10 Falcon
Ct., in Streamwood, Illinois, and at 1600 Central Ave., in Roselle,
Illinois.[BN]
The Plaintiff is represented by:
Aaron M. Zigler, Esq.
Alex J. Dravillas, Esq.
KELLER LENKNER LLC
150 N. Riverside Plaza, Suite 4270
Chicago, IL 60606
Telephone: (312) 741-5220
E-mail: amz@kellerlenkner.com
ajd@kellerlenkner.com
FACEBOOK INC: Seeks Supreme Court Review of Ruling in Duguid Suit
-----------------------------------------------------------------
Defendant Facebook, Inc., filed with the Supreme Court of the
United States a petition for a writ of certiorari in the matter
titled FACEBOOK, INC., Petitioner v. NOAH DUGUID, individually and
on behalf of himself and all others similarly situated, Respondent,
and UNITED STATES OF AMERICA, Respondent-Intervenor, Case No.
19-511.
Response is due on November 20, 2019.
The appellate case is captioned as Noah Duguid v. Facebook, Inc.,
Case No. 17-15320, in the United States Court of Appeals for the
Ninth Circuit.
As previously reported in the Class Action Reporter, the Ninth
Circuit revived the proposed class action lawsuit brought on behalf
of non-Facebook users, who claim they've gotten unsolicited texts
from Facebook in violation of a federal robocalling statute. The
lawsuit is styled Noah Duguid v. Facebook, Inc., Case No.
3:15-cv-00985-JST, in the U.S. District Court for the Northern
District of California, San Francisco,
The U.S. Court of Appeals for the Ninth Circuit reversed a lower
court decision that had tossed a lawsuit brought by Noah Duguid, a
non-Facebook user who claimed the company violated the Telephone
Consumer Protection Act (TCPA) by mistakenly sending him security
messages meant to alert users when their account had been accessed
from an unrecognized device or browser. Duguid claimed that
Facebook failed to respond to his multiple text and e-mail requests
to stop sending him the texts.
Facebook, Inc. is an American online social media and social
networking service company based in Menlo Park, California. It was
founded by Mark Zuckerberg, along with fellow Harvard College
students and roommates Eduardo Saverin, Andrew McCollum, and Dustin
Mosko.[BN]
The Defendant-Petitioner is represented by:
Paul D. Clement, Esq.
Devin S. Anderson, Esq.
Kasdin M. Mitchell, Esq.
Lauren N. Beebe, Esq.
KIRKLAND & ELLIS LLP
1301 Pennsylvania Avenue
NW Washington, DC 20004
Telephone: (202) 389-5140
E-mail: paul.clement@kirkland.com
devin.anderson@kirkland.com
kasdin.mitchell@kirkland.com
lauren.beebe@kirkland.com
- and -
Andrew B. Clubok, Esq.
Roman Martinez, Esq.
Susan E. Engel, Esq.
Samir Deger-Sen, Esq.
Gregory B. in den Berken, Esq.
LATHAM & WATKINS LLP
555 Eleventh Street, NW, Suite 1000
Washington, DC 20004
Telephone: (202) 637-3323
E-mail: andrew.clubok@lw.com
roman.martinez@lw.com
susan.engel@lw.com
samir.deger-sen@lw.com
greg.indenberken@lw.com
Respondent-Intervenor United States is represented by:
Noel J. Francisco, Esq.
SOLICITOR GENERAL
UNITED STATES DEPARTMENT OF JUSTICE
950 Pennsylvania Avenue
NW Washington, DC 20530-0001
E-mail: Noel.Francisco@USDOJ.gov
FARMERS GROUP: Tex. App. Remands Geter Suit to Trial Court
----------------------------------------------------------
The Court of Appeals of Texas, Thirteenth District, Corpus Christi,
Edinburg, affirmed in part and reversed in part a trial court
judgment in the case FARMERS GROUP, INC., FARMERS UNDERWRITERS
ASSOCIATION, FIRE UNDERWRITERS ASSOCIATION, FARMERS INSURANCE
EXCHANGE, FIRE INSURANCE EXCHANGE, GERALD HOOKS JR., LESLY K.
NOLEN, AND JOSEPH C. BLANKS, P.C., Appellants, v. SANDRA GETER, ON
BEHALF OF HERSELF AND ALL OTHERS SIMILARLY SITUATED, Appellee, Case
No. 13-18-00187-CV. (Tex. App.).
Sandra Geter, on behalf of herself and all others similarly
situated (Geter or the Geter class), against Farmers Group, Inc.,
Farmers Underwriters Association, Fire Underwriters Association,
Farmers Insurance Exchange, and Fire Insurance Exchange
(collectively "Farmers") -- asserting that Farmers improperly
refused to renew their HO-B homeowners insurance policies. The
trial court granted partial summary judgment in favor of the class
and conducted a trial on attorney's fees. It later rendered
judgment requiring Farmers to offer retroactively renewed HO-B
policies to all class members, and it awarded the class over $3
million in attorney's fees and court costs.
On appeal, Farmers argues that the trial court: (1) erred by
ordering Farmers to offer renewed HO-B policies to all class
members; (2) lacked subject matter jurisdiction to order a
particular premium rate for those renewed policies; (3) lacked
subject matter jurisdiction to compel Farmers to renew the
policies; (4) erred in granting specific performance; (5) erred in
awarding injunctive relief; (6) erred in granting a motion to show
cause filed by the class; and (7) erred in awarding attorney's fees
and costs. Appellants Gerald Hooks Jr., Lesly K. Nolen, and Joseph
C. Blanks, P.C. (Blanks) argue that the trial court erred by
striking their pleas in intervention seeking attorney's fees.
On review, the Appellate Court concludes that Geter met her burden
of establishing as a matter of law that Farmers' decision to
non-renew was made because of claims for losses resulting from
natural causes. According to the notice of non-renewal, Farmers
made the decision not to renew because of substantial losses which
we have incurred for the homeowners and dwelling lines of insurance
in Texas. Moreover, the Appellate Court finds that for Farmers, the
evidence establishes that the reason for its non-renewal in the
case was one of the reasons specifically prohibited under the
policy. Accordingly, the trial court did not err in ruling that
Geter was entitled to renewal under the terms of the policy, the
Appellate Court opines. The Appellate Court overrules Farmers'
first issue.
The Appellate Court however agrees with Farmers that the trial
court lacked subject matter jurisdiction to set premium rates for
retroactive renewed policies. The trial court therefore infringed
on TDI's exclusive jurisdiction by setting premium rates for the
retrospective HO-B policies, the Appellate Court holds. But the
Appellate also opines that the trial court did not infringe upon
the Texas Department of Insurance's (TDI) exclusive jurisdiction
to approve policy forms because it ordered renewal of a form which,
undisputedly, was approved for use by the TDI as of the time it was
ordered to be effective. Thus, Farmers' second issue is sustained
in part and overruled in part, the Appellate Court orders.
As to specific performance, the Appellate Court concludes that the
trial court erred by awarding specific performance of the HO-B
policy's non-renewal provisions as a remedy for Farmers' breach of
contract. Instead, the trial court should have granted Farmers'
second summary judgment motion to the extent it argued that
specific performance is unavailable as a remedy in the case. The
Appellate Court sustains Farmers' fourth issue.
The Appellate Court overrules Farmers' seventh issue that the trial
court erred in granting attorney's fees and costs to the Geter
class. Farmers contends that the award of fees should be reversed
because the Geter class is not entitled to declaratory judgment for
the reasons set forth in its other issues. Though the Appellate
Court have found that specific performance was not an appropriate
remedy under the particular facts of this case, the Appellate Court
have also concluded that the trial court did not err in determining
that Geter was entitled to renewal of the HO-B policy under the
policy's terms. Therefore, the class was entitled to declaratory
relief in that regard, the Appellate Court holds.
The Appellate Court rules that because specific performance was an
inappropriate remedy in the case, the trial court's judgment
compelling Farmers to offer or issue retroactive renewed HO-B
policies to the Geter class members is reversed. The Appellate
Court further reverses the trial court's order granting Farmers'
motion to strike the intervention filed by Hooks and Nolen to the
extent they seek recovery of attorney's fees under the Uniform
Declaratory Judgments Act (UDJA).
The Appellate Court remands the cause to the trial court for
further proceedings consistent with its opinion, including but not
limited to determination of: (1) what remedy, if any, is
appropriate and lawful under the circumstances to address Farmers'
improper non-renewal of the HO-B policies at issue and (2) whether
Hooks and Nolen are entitled to recover attorney's fees under the
UDJA, and if so, what amount of fees is reasonable and necessary.
The remainder of the trial court's judgment is affirmed, the
Appellate Court rules.
A full-text copy of the Appellate Court's October 10, 2019
Memorandum Opinion is available at https://tinyurl.com/yxl3rfhz
from Leagle.com
Layne E. Kruse , 1301 McKinney St., Ste 5100, Houston, TX
77010-3095, Lawrence L. Germer , 550 Fannin, Suite 400, Beaumont,
Texas 77701, Dov Preminger -- dov.preminger@nortonrosefulbright.com
; Warren S. Huang -- warren.huang@nortonrosefulbright.com ; Carlos
Ray Rainer , 1301 McKinney St Ste 5100, Houston, TX 77010-3095;
Katherine D. Mackillop -
Katherine.mackillop@nortonrosefulbright.com ; for Fire Insurance
Exchange, Farmers Group, Inc., Farmers Underwriters Association,
Fire Underwriters Association and FARMERS INSURANCE EXCHANGE,
Appellants.
Joseph C. Blanks , PO Box 999, Doucette, TX 75942-0999, for Gerald
Hooks, Jr., Joseph C. Blanks, P.C. and Lesly K. Nolen, Appellants.
Glen W. Morgan - gmorgan@rmqlawfirm.com - L. DeWayne Layfield , 801
Lauriel St . Beaumont, TX 77701, John Werner , for Sandra Geter,
Appellee.
FIRST HAWAIIAN: Settlement in Overdraft Fee Suit Wins Final Okay
----------------------------------------------------------------
said in its Form 10-Q Report filed with the Securities and Exchange
Commission on October 25, 2019, for the quarterly period ended
September 30, 2019, that the Court has approved a settlement
agreement executed by the parties in a class action, pursuant to
which the Company funded a $4.1 million settlement account.
In January 2017, a putative class action lawsuit was filed by a
Bank customer alleging that First Hawaiian Bank (FHB) improperly
charged an overdraft fee in circumstances where an account had
sufficient funds to cover the transaction at the time the
transaction was authorized but not at the time the transaction was
presented for payment, and that this practice constituted an unjust
and deceptive trade practice and a breach of contract.
The lawsuit further alleged that FHB's practice of assessing a
one-time continuous negative balance overdraft fee on accounts
remaining in a negative balance for a seven-day period constituted
a usurious interest charge and an unfair and deceptive trade
practice. In October 2018, the parties reached an agreement in
principle to resolve this class action lawsuit.
In connection with the anticipated settlement agreement, the
Company recorded an expense of approximately $4.1 million during
the three months ended September 30, 2018.
In August 2019, the Court approved the settlement agreement
executed by the parties, pursuant to which the Company funded a
$4.1 million settlement account.
First Hawaiian, Inc. operates as a bank holding company for First
Hawaiian Bank that provides a range of banking services to consumer
and commercial customers in the United States. It operates in three
segments: Retail Banking, Commercial Banking, and Treasury and
Other. The company was formerly known as BancWest Corporation and
changed its name to First Hawaiian, Inc. in April 2016. The company
was founded in 1858 and is headquartered in Honolulu, Hawaii. First
Hawaiian, Inc. is a subsidiary of BancWest Corporation.
FMR LLC: Jury Trial Not Required in Moitoso Suit, Court Opines
--------------------------------------------------------------
In the case captioned KEVIN MOITOSO, TIM LEWIS, MARY LEE TORLINE,
and SHERYL ARNDT, individually and as representatives of a class of
similarly situated persons, and on behalf of the FIDELITY
RETIREMENT SAVINGS PLAN, Plaintiffs, v. FMR LLC, FMR LLC FUNDED
BENEFITS INVESTMENT COMMITTEE, FMR LLC RETIREMENT COMMITTEE,
FIDELITY MANAGEMENT & RESEARCH COMPANY, FMR CO., INC., and FIDELITY
INVESTMENTS INSTITUTIONAL OPERATIONS COMPANY, INC., Defendants,
Civil Action No. 18-12122-WGY (D. Mass.), Judge William G. Young of
the U.S. District Court for the District of Massachusetts granted
Fidelity's motion to strike the Plaintiffs' jury demand.
Moitoso, Lewis, Torline, and Arndt, individually and as
representatives of a class of similarly situated persons, and on
behalf of the Fidelity Retirement Savings Plan, filed the suit
against Fidelity on Oct. 10, 2018. On Oct. 19, 2018, the
Plaintiffs filed a demand for a jury trial. Thereafter, the
Plaintiffs amended their complaint thrice, once as of right and
twice with leave from the Court. Five days after filing their
second amended complaint, on Jan. 15, 2019, the Plaintiffs again
demanded a jury trial. The Plaintiffs reasserted their jury trial
demand on April 4, 2019, after filing their third amended
complaint.
On April 17, 2019, Fidelity, for the first time, moved to strike
the Plaintiffs' jury demand. The Plaintiffs opposed the motion to
strike on May 1, 2019. On May 2, 2019, the Plaintiffs filed their
fourth amended complaint, with Fidelity's agreement. The day
before the hearing on May 7, 2019, Fidelity filed a reply.
The Operative Demand requests a trial by jury on counts one through
four and count six of the Operative Complaint, which seek an award
of losses for Fidelity's alleged breaches of fiduciary duty. In
the alternative, the Plaintiffs request an advisory jury.
The Plaintiffs are former Fidelity employees who participated in
the Fidelity Retirement Savings Plan. They allege that Fidelity
breached its fiduciary duties in managing the Plan. The Plaintiffs
request, among other things, that Fidelity restore to the Plan the
losses that the Plan suffered as a consequence of Fidelity's
alleged breaches of fiduciary duty. They state that because they
are former employees, they immediately may withdraw a proportional
share of the loss award from the Plan if and when the Court enters
judgment in their favor.
The parties present the District Court with a close call as to
whether their dispute includes a claim best characterized as a suit
at common law. The plaintiffs seek a money award on behalf of a
plan subject to the Employee Retirement Income Security Act of 1974
("ERISA") for the plan fiduciaries' alleged breaches of fiduciary
duty. The plan fiduciaries object to a jury trial and insist no
such right exists in the present case.
After close study of historical practice and ERISA's text, Judge
Young concludes that a money award, if any, that the plaintiffs
might win would be an equitable surcharge, not legal damages. As a
result, the District rules that the Seventh Amendment to the U.S.
Constitution does not require a jury trial in the present case.
Nonetheless, because citizen juries play a vital role in the
democracy and so as to preserve the Plaintiffs' rights, the Judge
Court will empanel an advisory jury.
A full-text copy of the District Court's Oct. 8, 2019 Memorandum &
Order is available at https://is.gd/Fy9lT5 from Leagle.com.
Kevin Moitoso, individually and as representatives of a class of
similarly situated persons, and on behalf of the Fidelity
Retirement Savings Plan, Tim Lewis, individually and as
representatives of a class of similarly situated persons, and on
behalf of the Fidelity Retirement Savings Plan & Mary Lee Torline,
individually and as representatives of a class of similarly
situated persons, and on behalf of the Fidelity Retirement Savings
Plan, Plaintiffs, represented by Brock J. Specht , Nicholas Kaster,
PLLP, pro hac vice, Carl F. Engstrom -- cengstrom@nka.com --
Nicholas Kaster PLLP, pro hac vice, Jacob T. Schutz, Nicholas
Kaster, PLLP, pro hac vice, James H. Kaster, Nichols Kaster, PLLP,
pro hac vice, Kai H. Richter -- krichter@nka.com -- Nichols Kaster
PLLP, pro hac vice, Mark E. Thomson -- mthomson@nka.com -- Nichols
Kaster, PLLP, pro hac vice, Paul J. Lukas -- lukas@nka.com --s
Nichols Kaster & Anderson LLP, pro hac vice, Jacob A. Walker --
jake@blockesq.com -- Block & Leviton LLP & Jason M. Leviton --
jason@blockesq.com -- Block & Leviton LLP, pro hac vice.
Sheryl Arndt, individually and as representatives of a class of
similarly situated persons, and on behalf of the Fidelity
Retirement Savings Plan, Plaintiff, represented by James H. Kaster,
Nichols Kaster, PLLP, pro hac vice, Brock J. Specht, Nicholas
Kaster, PLLP & Kai H. Richter, Nichols Kaster PLLP.
FMR LLC, FMR LLC Retirement Committee, Fidelity Management &
Research Company, FMR Co., Inc., Fidelity Investments Institutional
Operations Company, Inc. & FMR LLC Funded Benefits Investment
Committee, Defendants, represented by Christina L. Hennecken --
chennecken@goodwinlaw.com -- Goodwin Procter LLP, pro hac vice, M.
William Jay -- wjay@goodwinlaw.com -- Goodwin Procter LLP, pro hac
vice, Michael K. Isenman -- misenman@goodwinlaw.com -- Goodwin
Procter LLP, pro hac vice, Alison V. Douglass, Goodwin Procter,
LLP, Benjamin S. Reilly, Goodwin Procter LLP, David Rosenberg,
Goodwin Procter LLP, John J. Falvey, Jr. -- jfalvey@goodwinlaw.com
-- Goodwin Procter LLP & Paul E. Nemser, Goodwin Procter, LLP.
G4S SECURE: Pitts Seeks to Certify FLSA Class
---------------------------------------------
In the class action lawsuit styled as WALLACE PITTS, on behalf of
himself and others similarly situated, the Plaintiff, vs. G4S
SECURE SOLUTIONS (USA) INC., the Defendant, Case No.
2:19-cv-02650-MHW-CMV (S.D. Ohio), the Plaintiff moves the Court
for an order pursuant to section 216(b) of the Fair Labor Standards
Act:
a. conditionally certifying the case as a FLSA collective
action against Defendant on behalf of Plaintiff and others
similarly situated;
b. directing that notice be sent by United States mail and
email to:
"all former and current site supervisors employed by
Defendant in Alabama, Florida, Kentucky, Louisiana, New
York, and Ohio within three years preceding the date of
filing of the Complaint to the present";
c. directing the parties to jointly submit within 14 days
following the Court's ruling on this Motion a proposed
Notice informing such present and former employees of the
pendency of this collective action and permitting them to
opt into the case by signing and submitting a Consent to
Join Form;
d. directing the Defendant to provide within 14 days following
the Court's ruling on this Motion a roster of such present
and former employees that includes their full names, their
dates of employment, last known home addresses and phone
numbers, and personal email addresses;
e. directing that the Notice, in the form approved by the
Court, be sent to such present and former employees within
14 days following the Court's Approval of the proposed
Notice submitted by the Parties, using the home and email
addresses listed in the Roster; and
f. providing that duplicate copies of the Notice may be sent in
the event new, updated, or corrected mailing addresses or
email addresses are found for one or more of such present or
former employees.
G4S Secure Solutions is an American/British-based security services
company, and a subsidiary of G4S plc. It was founded as The
Wackenhut Corporation in 1954, in Coral Gables, Florida, by George
Wackenhut and three partners.[CC]
Counsel for the Plaintiff are:
Jeffrey Moyle, Esq.
Hans A. Nilges, Esq.
Shannon M. Draher, Esq.
NILGES DRAHER LLC
614 West Superior Ave., Suite 1148
Cleveland, OH 44113
Telephone: (216) 230-2955
Facsimile: (330) 754-1430
E-mail: jmoyle@ohlaborlaw.com
hans@ohlaborlaw.com
sdraher@ohlaborlaw.com
GEICO INSURANCE: Court Narrows Docs Production in Prudhomme Suit
----------------------------------------------------------------
The United States District Court for the Western District of
Louisiana, Lafayette Division. granted in part and denied in part
Plaintiffs' Motion to Compel Discovery in the case captioned
Prudhomme et al., v. Geico Insurance Co. et al., Civil Action No.
15-CV-00098. (W.D. La.)
Plaintiffs filed the Motion To Compel contending that their
attempts to obtain discoverable information have been thwarted by
GEICO. They seek an order compelling GEICO to produce documents
responsive to Plaintiffs' Requests for Production; to produce
corporate representatives who are knowledgeable about the topics
they have been designated to testify; and to produce deponents who
are not unreasonably evasive and uncooperative during depositions.
GEICO's 30(b)(6) Witness
Troy Don Penry was designated by GEICO as their corporate
representative to testify on certain topic requested by Plaintiffs
30(b)(6) deposition notice, which included information on the CCC
Valuescope system.
The Court stated that it has no way of knowing to what extent
Defendants could, or could not, prepare an appropriate designee on
the reasons for using a system that was implemented over 20 years
earlier. Penry has testified and GEICO represents, however, that
some due diligence in obtaining answers to Plaintiffs' requests was
done. Based on the transcript of Penry's testimony, the Court
cannot say that Penry was not Plaintiffs' "best chance" of
obtaining the data and information. The Court will not compel GEICO
to provide another corporate designee.
GEICO's Adjuster
Plaintiffs deposed GEICO damage adjuster, Jeremy Louviere. They
contend that during his deposition, Louviere was evasive and
non-responsive throughout the deposition. In its opposition, GEICO
contends that Louviere was not being evasive but instead did not
understand the terminology used by counsel. They further contend
that that Louviere's inability to recall specifics from seven years
before his deposition is not evasiveness.
The Court finds Louviere's responses regarding the number of total
loss claims he has adjusted during his career with GEICO to be most
telling of the characterization of his level of cooperation in the
deposition. Based on his deposition testimony, the Court finds
Louviere was evasive and uncooperative.
The Court will allow Plaintiffs to retake Louviere's deposition.
GEICO's Production Responses
* Production No. 12 - Plaintiffs requested GEICO documents which
detail the accuracy and/or cost saving benefits of CCC Valuescope
Value Report valuation system as compared to NADA, Kelley Blue
Book, or any other vehicle valuation program or system. In its
Response, GEICO objected to this Request as vague and ambiguous and
may improperly label a product and overbroad, unduly burdensome and
seeks documents that are not relevant to Plaintiffs' claims.
* Production No. 14 - Plaintiffs requested documents which
discuss/address whether CCC Valuescope Value Report valuation
system complies with Louisiana law. In its Response, GEICO again
objected as vague and ambiguous and may improperly label a product
and overbroad, unduly burdensome as it was not limited to the
Louisiana law at issue nor to the time period of Plaintiffs'
claim. In its opposition to the motion, GEICO further objects to
the request to the extent it requests internal evaluation of state
legal requirements (GEICO's counsel's opinion) as protected by the
attorney-client privilege.
* Production No. 15 - Plaintiffs requested documents, data and/or
analyses provided by GEICO to CCC detailing their intended uses of
the CCC valuation product. In its Response, GEICO again objected
as vague and ambiguous and may improperly label a product and
overbroad, unduly burdensome as it is not limited to the
Plaintiffs' claims, the timeframe of Plaintiffs' insurance claims,
any class period nor to the use of CCC Valuescope Value Reports
related to the total loss claims.
* Production No. 16 — Plaintiffs requested every CCC valuation
report generated for GEICO's Louisiana insureds, including the
amount paid to each insured for each total loss claim.
GEICO also objected to this request as vague and ambiguous and
seeking confidential, proprietary and/or competitively sensitive
information in that it seeks personal information of GEICO
claimants and insureds. It again asserted the request was
overbroad, unduly burdensome seeking documents not relevant because
it was not limited to Plaintiffs' claims, the timeframe of claims,
nor to any potentially relevant class period.
In their motion, Plaintiffs state that they recognize these
objections as valid to a point. They contend, however, if and when
a class is certified, the information will be necessary for the
identification of class members and the determination of the
damages. They request that, should a class be certified, the Court
compel the production of these documents.
* Production No. 17 - Plaintiffs request all solicitation,
promotion, and/or sales materials, electronic or otherwise,
provided to GEICO by CCC prior to GEICO's purchase and
implementation of the CCC Valuescope Value Repot System. GEICO
objected to this request as vague and ambiguous and may improperly
label a product and overbroad, unduly burdensome as it is not
relevant to the Plaintiffs' claims, limited to the timeframe of
Plaintiffs' insurance claims, any relevant class period, nor to the
use of implementation of CCC Valuescope Value Reports related to
the total loss claims. Such documents would be from more than ten
years ago and possibly more than twenty years ago and therefore not
proportional to the litigation. GEICO stated it is not searching
for and may be withholding documents on this basis.
* Production No. 18 - Plaintiffs request documents provided to
GEICO by CCC, prior to GEICO's implementation of the CCC system,
that explain and/or demonstrate how the CCC valuation product
works. GEICO objected to this request stating most of the same
objections to those in its response to Production No. 17.
Accordingly, the Court orders that:
1. The Motion to Compel filed by Plaintiffs is GRANTED IN PART
AND DENIED IN PART as follows: (1) GEICO is to provide dates to
Plaintiffs for the continuation of the deposition (not to exceed 2
hours) of Mr. Louviere within the next 30 days, (2) GEICO is to
serve its privilege log on Plaintiffs, in compliance with this
order, no later than November 8, 2019, (3) the parties are to
confer in a Rule 37 conference regarding Plaintiffs' requests for
production of the Check Writer System within 30 days.
2. Plaintiffs' motion is denied with regard to Requests 15, 17
and 18 to the extent that those Requests seek the production of
documents or data involving the implementation of the CCC
Valuescope Value Reports which were created at least a decade
before existence of the claims in the action.
A full-text copy of the District Court's October 10, 2019
Memorandum Order is available at https://tinyurl.com/y3mvd82m from
Leagle.com
Eric Prudhomme, individually and on behalf of others similarly
situated & Elvin Jack, individually and on behalf of others
similarly situated, Plaintiffs, represented by John R. Whaley -
jrwhaley@whaleylaw.com - Whaley Law Firm, Arthur Mahony Murray ,
Murray Law Firm, 650 Poydras St Ste 2150 New Orleans, Louisiana
70130, George F. Riess , Law Office of George Riess, 228 Saint
Charles Ave Ste 1224, New Orleans, LA, 70130, Kenneth W. DeJean ,
Law Offices of Kenneth W DeJean, 417 West University Avenue,
Lafayette, LA 70506-3649, Kenneth D. St Pe , Law Office of Kenneth
D St Pe,311 W. University Ave. Suite A, Lafayette, LA 70506 &
Stephen B. Murray, Jr. , Murray Law Firm, 650 Poydras Street •
Suite 2150 • New Orleans, Louisiana 70130
Government Employees Insurance Co & Geico General Insurance Co,
Defendants, represented by Stephen R. Barry , Barry & Co, 405 West
Main Street, Lafayette, LA 70501, Dan W. Goldfine
-dan.goldfine@huschblackwell.com - Husch Blackwell, pro hac vice,
Daphne P. McNutt , Barry & Co, 405 West Main Street, Suite 101,
Lafayette, LA 70501, Ian M. Fischer -
ian.fischer@huschblackwell.com - Husch Blackwell, pro hac vice,
Joshua Grabel - josh.grabel@huschblackwell.com - Husch Blackwell,
pro hac vice, Kathleen Crowe Marksbury , Barry & Co, 405 West Main
Street, Suite 101, Lafayette, LA 70501& Mark J. Neal , Neal Law
Firm, PO Box 3008, Monroe, LA, 71210
GNC HOLDINGS: Appeal from Workweek Suit Judgment Still Pending
--------------------------------------------------------------
GNC Holdings, Inc. said in its Form 10-Q Report filed with the
Securities and Exchange Commission on October 25, 2019, for the
quarterly period ended September 30, 2019, that the company is
awaiting the court's ruling on its appeal from an "adverse
judgment" in the Pennsylvania Fluctuating Workweek related class
suit.
On September 18, 2013, Tawny Chevalier and Andrew Hiller commenced
a class action in the Court of Common Pleas of Allegheny County,
Pennsylvania. Plaintiff asserted a claim against the Company for a
purported violation of the Pennsylvania Minimum Wage Act ("PMWA"),
challenging the Company's utilization of the "fluctuating workweek"
method to calculate overtime compensation, on behalf of all
employees who worked for the Company in Pennsylvania and who were
paid according to the fluctuating workweek method.
In October 2014, the Court entered an order holding that the use of
the fluctuating workweek method violated the PMWA. In September
2016, the Court entered judgment in favor of Plaintiffs and the
class in an immaterial amount, which has been recorded as a charge
in the accompanying Consolidated Financial Statements. Plaintiffs
subsequently filed a petition for an award of attorney's fees,
costs and incentive payment. The court awarded an immaterial amount
in legal fees.
The Company appealed the adverse judgment and the award of
attorney's fees. On December 22, 2017, the Pennsylvania Superior
Court held that the Company correctly determined the "regular rate"
by dividing weekly compensation by all hours worked (rather than
40), but held that the regular rate must be multiplied by 1.5
(rather than 0.5) to determine the amount of overtime owed. Taking
accumulated interest into account, the net result of the Superior
Court's decision was to reduce the Company's liability by an
immaterial amount, which has been reflected in the accompanying
Consolidated Financial Statements.
The Company filed a petition for appeal to the Pennsylvania Supreme
Court on January 22, 2018. The Pennsylvania Supreme Court accepted
the Company's petition for appeal and the Company filed its
appellant's brief on August 27, 2018. Oral argument occurred in
April 2019 and the Company awaits the Court's ruling.
No further updates were provided in the Company's SEC report.
GNC Holdings, Inc., together with its subsidiaries, operates as a
specialty retailer of health, wellness, and performance products.
The company operates through three segments: U.S. and Canada,
International, and Manufacturing/Wholesale. The company was founded
in 1935 and is headquartered in Pittsburgh, Pennsylvania.
GNC HOLDINGS: Trial in Naranjo Class Suit Set for January 2020
--------------------------------------------------------------
GNC Holdings, Inc. said in its Form 10-Q Report filed with the
Securities and Exchange Commission on October 25, 2019, for the
quarterly period ended September 30, 2019, that the trial in the
class action suit initiated by Elizabeth Naranjo is currently
scheduled for January 2020.
On February 29, 2012, former Senior Store Manager, Elizabeth
Naranjo, individually and on behalf of all others similarly
situated, sued General Nutrition Corporation in the Superior Court
of the State of California for the County of Alameda.
The complaint contains eight causes of action, alleging, among
other matters, meal, rest break and overtime violations for which
indeterminate money damages for wages, penalties, interest, and
legal fees are sought.
In June 2018, the Court granted in part and denied in part the
Company's Motion for Decertification. In August 2018, the plaintiff
voluntarily dismissed the class action claims alleging overtime
violations. As of September 30, 2019, an immaterial liability has
been accrued in the accompanying financial statements.
The Company intends to vigorously defend against the remaining
class action claims asserted in this action. Trial is currently
scheduled for January 2020.
GNC Holdings, Inc., together with its subsidiaries, operates as a
specialty retailer of health, wellness, and performance products.
The company operates through three segments: U.S. and Canada,
International, and Manufacturing/Wholesale. The company was founded
in 1935 and is headquartered in Pittsburgh, Pennsylvania.
GREENLAND ACQUISITION: Wheby Suit Dismissed Following MOU
---------------------------------------------------------
Greenland Acquisition Corporation (NASDAQ: GLAC) (the "Company" or
"Greenland") on Oct. 17 dislcosed that it has entered into a
confidential memorandum of understanding (the "MOU") with the
plaintiff and other parties in a purported class action, captioned
Wheby v. Greenland Acquisition Corporation, et al., Case No.
19-1758-MN (D. Del.), which was filed on September 19, 2019,
against the Company and certain individuals (the "Action").
Pursuant to the MOU, a stipulation and order of dismissal of the
Action was filed by the plaintiff in the United States District
Court for the District of Delaware on October 14, 2019, which was
approved and entered by the court on October 15, 2019.
"We are pleased that the case has been dismissed and we remain
focused on driving long-term value for our shareholders by working
toward advancing the proposed business combination with Zhongchai
Holding (Hong Kong) Limited," stated Yanming Liu, Chief Executive
Officer and Chairman of the Company.
About Greenland
Greenland Acquisition Corporation is a blank check company formed
for the purpose of acquiring, engaging in a share exchange, share
reconstruction and amalgamation with, purchasing all or
substantially all of the assets of, entering into contractual
arrangements with, or engaging in any other similar business
combination with one or more businesses or entities. [GN]
GRIFFITH FOODS: Terry Sues Over Unlawful Use of Biometric Data
--------------------------------------------------------------
Dearlo Terry, individually, and on behalf of all others similarly
situated, v. GRIFFITH FOODS GROUP, INC., Case No. 2019CH12910
(Ill., Cir. Ct., Cook Cty. Nov. 6, 2019), is brought against the
Defendant, its subsidiaries and affiliates, to redress and curtail
the Defendant's unlawful collection, use, storage, and disclosure
of the Plaintiff's sensitive biometric data.
The Defendant's employees are required to have their fingerprints
scanned by a biometric timekeeping device. Unlike ID badges or time
cards--which can be changed or replaced if stolen or
compromised--fingerprints are unique, permanent biometric
identifiers associated with each employee. This exposes the
Defendant's employees to serious and irreversible privacy risks.
Recognizing the need to protect its citizens from such situation,
Illinois enacted the Biometric Information Privacy Act,
specifically to regulate companies that collect and store Illinois
citizens' biometrics, such as fingerprints.
Notwithstanding the clear and unequivocal requirements of the law,
the Plaintiff alleges that the Defendant disregards employees'
statutorily protected privacy rights and unlawfully collects,
stores, disseminates, and uses its employees' biometric data in
violation of BIPA. Specifically, the Defendant has violated and
continues to violate BIPA because it did not and continues not to:
properly inform the Plaintiff in writing of the specific purpose
and length of time for which their fingerprints were being
collected, stored, and used, as required by BIPA; receive a written
release from the Plaintiff to collect, store, or otherwise use
their fingerprints, as required by BIPA; publish a publicly
available retention schedule and guidelines for permanently
destroying Plaintiff's fingerprints, as required by BIPA; and
obtain consent from Plaintiff to disclose, redisclose, or otherwise
disseminate their fingerprints to a third party as required by
BIPA, says the complaint.
Dearlo Terry is a natural person and a citizen of the State of
Illinois.
Griffith Foods Group, Inc. is an Illinois manufacturer of food
ingredients located in Alsip, Illinois.[BN]
The Plaintiff is represented by:
James B. Zouras, Esq.
Ryan F. Stephan, Esq.
Catherine T. Mitchell, Esq.
STEPHAN ZOURAS, LLP
100 N. Riverside Plaza, Suite 2150
Chicago, IL 60606
Phone: (312) 233-1550
Fax: (312) 233-1560
Email: jzouras@stephanzouras.com
rstephan@stephanzouras.com
cmitchell@stephanzouras.com
GUARDIAN LIFE: Gloss Seeks Overtime Pay for Field Sales Reps
------------------------------------------------------------
MEGHAN GLOSS, on behalf of herself and all others similarly
situated, Plaintiff v. THE GUARDIAN LIFE INSURANCE COMPANY OF
AMERICA; ROBERT FINE & ASSOCIATES; RANDY S. FINE, individually,
Defendants, Case No. 90-3086 (Mass. Super., Oct. 21, 2019), seeks
to recover overtime wages under the Massachusetts General Laws.
Meghan Gloss is an individual residing in Bellingham,
Massachusetts. The Defendants employed the Plaintiff in 2018 as an
inside sales person in Framingham, Massachusetts.
Guardian engages individuals as "Field Representatives" to sell and
provide insurance and financial services on a full time basis to
members of the public. The primary duty of a Guardian "Field
Representative" is the sale of insurance and financial services.
During Plaintiffs tenure as a "Field Representative" with Guardian,
the company prohibited her from soliciting or placing business with
any other insurance company. Guardian paid the Plaintiff a monthly
salary in the amount of $2,000, plus commissions. The Plaintiffs
monthly salary was payable in equal installments on the fifteenth
and last days of each month.
Guardian classifies all "Field Representatives" as independent
contractors. Guardian classified the Plaintiff as an independent
contractor. The Plaintiff contends that she was actually Guardian's
employee because her activities were within the company's usual
course of business, Guardian exercised control and direction over
her, and she did not sell or provide insurance or financial
services for any company other than Guardian during her tenure as a
"Field Representative."
The Plaintiff worked in excess of 40 hours during one or more
workweeks. Guardian treats all "Field Representatives" as exempt
for overtime purposes. Guardian treated the Plaintiff as exempt for
overtime purposes. Guardian did not pay the Plaintiff overtime
wages for any of the hours she worked in excess of 40 during a
week, the lawsuit says.
Guardian is an insurance and financial services company. RFA is an
agency of Guardian, not an affiliate or subsidiary. Guardian's and
RFA's usual course of business is the sale and provision of
insurance and financial services to members of the public.[BN]
The Plaintiff is represented by:
Brook S. Lane, Esq.
FAIR WORK,P.C.
192 South Street, Suite 450
Boston, MA 02111
Telephone: 617-607-3260
E-mail: brook@fairworklaw.com
HEALTHPLUS SURGERY: Judge Allows NJ Class Action to Proceed
-----------------------------------------------------------
Spencer Kent, writing NJ Advance Media, reports that a judge has
given the green light for a class-action lawsuit against a Bergen
County surgery center over infection control deficiencies that
potentially exposed thousands of patients to HIV, hepatitis B and
hepatitis C.
The suit involves 400 New Jersey residents who were among nearly
4,000 patients possibly exposed to the diseases at HealthPlus
Surgery Center in Saddle Brook. Those at risk were patients who had
procedures at the facility between January 2018 and Sept. 7, 2018.
An Essex County Superior Court judge made the ruling on Oct. 11,
giving the go-ahead for the class-action suit while denying a
motion to stay the litigation by the facility's attorneys.
Joe Osefchen, the attorney representing the 400 residents, said the
suit is asking HealthPlus to cover the cost of a second blood test
to confirm whether his clients contracted any of the diseases from
the facility.
Why a second blood test? It can take up to six months for HIV to
come back positive on a test (hepatitis B and hepatitis C usually
only take a matter of weeks but sometimes can take months to show
up positive). Therefore, any patient tested within that six-month
window of exposure may have received inaccurate results - meaning
they may have actually been HIV positive despite a negative
result.
"People get a negative (result) on that early test, they're going
to think they're okay," Osefchen told NJ Advance Media.
However, Keith Roberts, an attorney representing HealthPlus,
maintained that the issue of re-testing touches upon "complex,
scientific issues that vary from patient to patient."
"But the concern of HealthPlus will always be the well-being of the
patients," Roberts added.
HealthPlus sent out a letter in December 2018 warning the nearly
4,000 patients about the potential risk of exposure, saying that
the facility would pay for blood testing.
However, Osefchen said that the facility hasn't taken measures to
ensure patients have received a follow-up test.
And, according to Osefchen, of the nearly 4,000 patients, only
around 700 have been tested.
Even though the class-action suit is not seeking money damages,
Osefchen said that option would still be on the table for patients
to pursue in future litigation.
Osefchen said while some of his clients may have already gotten
re-tested, some may not have. Some may not have been tested at all.
The suit is asking for the facility to issue another notice saying
it would pay for further blood work.
It's still not clear whether anyone contracted diseases from the
facility. In December last year, the New Jersey Department of
Health said it was not aware of any illness as a result of the
infection control issues at HealthPlus.
State health officials have maintained that the risk of infection
was low.
Osefchen said he is aware of nearly 20 separate suits -- litigation
he emphasized he is not involved in -- against the facility with
patients who are seeking money damages. He said it was his
understanding that some of those patients have alleged that they
contracted diseases from HealthPlus.
One patient did test positive for chronic hepatitis B last year,
but it also remains unclear whether the disease was a preexisting
condition or whether the patient had contracted it from HealthPlus,
a previous report said.
Following a complaint filed to the state health department, likely
by a former employee, state health officials inspected the facility
and immediately shut it down for three weeks. The facility reopened
after state health officials said the issues were addressed.
State health officials in a September 2018 report said they found
operating rooms at the facility improperly cleaned and disinfected
between procedures, increasing the likelihood of exposure to
infectious diseases. Surgical tools were at times found with "brown
rust-like stains" prior to use.
A state inspector saw a stretcher in a hallway with a blood-stained
sheet that wasn't properly disinfected even after the issue was
raised to workers.
And one staffer told a state inspector that "due to the high volume
of procedures, surgical trays were not always allowed to dry in
sterilizers before being used."
In addition to infection control deficiencies, the report cited
possible opioid theft by employees at the facility, with large
amounts of powerful opioids like Fentanyl and Oxycodone found
missing.
An evidentiary hearing will be held in December at Essex County
Superior Court, at which point each side will present evidence and
give testimony. [GN]
HEARTLAND EXPRESS: Fails to Give Proper Rest Period, Freitas Says
-----------------------------------------------------------------
Gregg Freitas and Ryan Calvert, on behalf of himself and those
similarly situated v. HEARTLAND EXPRESS, INC. OF IOWA, Case No.
2:19-cv-00383-SAB (E.D. Wash., Nov. 5, 2019), is brought to address
the Defendant's systemic denial of minimum wages and compliant meal
and rest periods, among other violations, under the Fair Labor
Standards Act, the Revised Code of Washington, the Washington
Administrative Code, California Unfair Competition Law, California
Labor Code, and California of Industrial Relations and Industrial
Welfare Commission wage orders.
The Defendant's drivers work away from home for weeks on end on
rounds of duty hauling freight in long-haul semis, either alone, or
as a part of a two-driver team, according to the complaint. The
Drivers live on the truck and attempt to rest in the truck's
cramped "sleeper berth," a small bunk in the truck's cab--often
while the truck is in motion and being driven by a coworker. The
Drivers must be logged into the truck's electronic system under one
of four duty statuses: "driving," "on-duty not driving," "off
duty," or "sleeper berth" during their tours of duty. The
Defendant's policy and practice is to pay only for time spent
driving. The Defendant does not pay Drivers for time logged as
"sleeper berth."
The Defendant's "sleeper berth" polices result in two categories of
violations: (1) unpaid wages for time during Drives are confined to
the "sleeper berth" and the immediate vicinity of the truck while
subject to the control of the Defendant and unable to use the time
effectible for their own purposes; and (2) noncompliant meal and
rest periods during the time when Drivers are constrained to the
"sleeper berth" and the immediate area surrounding the truck while
subject to the control of the Defendant, says the complaint.
The Plaintiffs were employed by the Defendant as over-the-road
truck drivers.
The Defendant has been engaged in the business of long-haul
trucking in California.[BN]
The Plaintiffs are represented by:
Toby J. Marshall, Esq.
Erika L. Nusser, Esq.
TERRELL MARSHALL LAW GROUP PLLC
936 North 34th Street, Suite 300
Seattle, WA 98103-8869
Phone: (206) 816-6603
Facsimile: (206) 319-5450
Email: tmarshall@terrellmarshall.com
enusser@terrellmarshall.com
HOUSTON, TX: Averts Class Suit Over Untested Sexual Assault Kits
----------------------------------------------------------------
Brian Flood, writing for Bloomberg Law, reports that Houston
escaped a putative class action over the city's delay in testing
sexual assault kits because the plaintiffs waited too long to bring
their case, the Fifth Circuit ruled Oct. 16.
Dejenay Beckwith and Beverly Flores were each sexually assaulted in
2011, and the Houston Police Department collected a SAK from each
for testing. Beckwith's assailant had a long history of sexually
assaulting women, and was listed in a DNA database system. Beckwith
claims that if Houston had promptly tested SAKs from his previous
victims, he'd have been stopped before he had a chance to assault
her. [GN]
HYVEE: Chimicles Schwartz Files Data Breach Class Action
--------------------------------------------------------
Tisia Muzinga, writing for KCCI, reports that a Pennsylvania law
firm announced Oct. 16 that it has filed a class-action lawsuit
against Hy-Vee in the wake of a recent data breach.
Chimicles Schwartz Kriner & Donaldson-Smith LLP said is
representing customers whose personal information was compromised
in a security breach of Hy-Vee's gas pumps, drive-through coffee
shops and Market Grilles, Market Grille Expresses and Wahlburgers
locations between Dec. 14, 2018, and July 29, 2019.
The lawsuit accuses Hy-Vee of providing little information to
customers following the breach and failing to "implement adequate
data security measures."
It alleges that the breach was a result of Hy-Vee's inadequate data
security measures and cavalier approach to data security.
The lawsuit goes on to say that, despite the well-publicized and
ever-growing threat of security breaches, Hy-Vee failed to ensure
that it maintained adequate data security measures causing card
information to be stolen.
Hy-Vee has not confirmed the number of cards that were compromised,
but a data security expert listed in the lawsuit alleges that the
credit and debit card information of more than 5 million customers
are for sale on the dark web.
Hy-Vee said in a statement to KCCI, "At this time we are not
commenting on pending litigation." [GN]
ILLINI PRECAST: Jimenez Wants to Collect Unpaid Overtime Wages
--------------------------------------------------------------
Agustin Jimenez, Leopoldo Jimenez, Ginder Rivera Lopez, Everardo
Estrada Torres, and Omar Arreguin Nunez, on behalf of themselves
and all others similarly situated v. ILLINI PRECAST, LLC and CRAIG
WEGENBACH, Case No. 2:19-cv-01623-NJ (E.D. Wis., Nov. 5, 2019), is
brought under the Fair Labor Standards Act to account for and
collect unpaid overtime due to the Plaintiffs.
The Defendants misclassified the Plaintiffs as either a shift
"Supervisor" or a shift "Foreman" and paid them a salary, and not
hourly wages, despite the fact that the Plaintiffs' primary job
duties consists of performing repetitive operations with their
hands, physical skills and energy, according to the complaint.
Due to the misclassification, the Defendants have failed to
properly pay the Plaintiffs for all of the time the Defendants
required them to work--systematically denying the Plaintiffs their
earned waged and overtime compensation through the Defendants'
company-wide policies and practice that violate the FLSA, says the
complaint.
The Plaintiffs were employed by the Defendants as "Supervisors" and
"Foremen" for particular work shifts at the Burlington, Wisconsin
production facility
Illini Precast, LLC manufactures precast concrete component
pieces.[BN]
The Plaintiffs are represented by:
Robert M. Mihelich, Esq.
LAW OFFICES OF ROBERT M. MIHELICH
2665 S. Moorland Road, Ste. 200
New Berlin, WI 53151
Phone: (262) 789-9300
Email: attyrmm@bizwi.rr.com
IMAGE INT'L: Class Settlement in Hodge Suit Gets Final Approval
---------------------------------------------------------------
In the case, Lynn Hodge, Plaintiff, v. Image International
Manufacturing, LLC., et al., Defendants, Case No. EDCV 18-925 JGB
(SHKx) (C.D. Cal.), Judge Jesus G. Bernal of the U.S. District
Court for the Central District of California, Eastern Division,
granted the Plaintiff's Motion for Final Approval of Class Action
Settlement.
Judge Hodge awarded (i) the Class Counsel attorneys' fees in the
amount of $107,250; (ii) the Class Counsel costs in the amount of
$6,887.76; and (iii) $15,000 to Plaintiff Hodge. The Judge also
ordered the payment of $2,750 to the Settlement Administrator.
Accordingly, in light of the class settlement reached, the
complaint is dismissed with prejudice, the Court rules.
A full-text copy of the District Court's Oct. 11, 2019 Judgment is
available at https://is.gd/VqnGdZ from Leagle.com.
Lynn Hodge, an individual, Plaintiff, represented by David P. Myers
-- dmyers@myerslawgroup.com -- Myers Law Group APC, Jason T.
Hatcher -- jhatcher@myerslawgroup.com -- Myers Law Group APC &
Robert M. Kitson -- rkitson@myerslawgroup.com -- Myers Law Group
APC.
Image International Manufacturing, LLC, a Florida Limited Liability
Company, Defendant, represented by Margaret Rosenthal --
mrosenthal@bakerlaw.com -- Baker and Hostetler LLP & Vartan Serge
Madoyan -- vmadoyan@bakerlaw.com -- Baker and Hostetler LLP.
INSTAWARES HOLDING: Guglielmo Asserts Breach of ADA in New York
---------------------------------------------------------------
Instawares Holding Company, LLC is facing a class action lawsuit
filed pursuant to the Americans with Disabilities Act. The case is
styled as Joseph Guglielmo, on behalf of himself and all others
similarly situated, Plaintiff v. Instawares Holding Company, LLC,
Defendant, Case No. 1:19-cv-10080 (S.D. N.Y., Oct. 30, 2019).
Instawares Holding Company, LLC operates as an e-commerce company
that supplies restaurant equipment.[BN]
The Plaintiff is represented by:
Russel Craig Weinrib, Esq.
Stein Saks PLLC
285 Passaic St., Suite 5
Hakensack, NJ 07601
Tel: (201) 282-6500
Email: rweinrib@steinsakslegal.com
INTEL CORP: Hearing This Month on Motion to Stay
------------------------------------------------
Intel Corporation said in its Form 10-Q Report filed with the
Securities and Exchange Commission on October 25, 2019, for the
quarterly period ended September 28, 2019, that a hearing on the
motion to stay a second U.S. class action suit related to
securities vulnerabilities is scheduled this month.
In June 2017, a Google research team notified the company and other
companies that it had identified security vulnerabilities (now
commonly referred to as "Spectre" and "Meltdown") that affect many
types of microprocessors, including the company's products. As is
standard when findings like these are presented, the company worked
together with other companies in the industry to verify the
research and develop and validate software and firmware updates for
impacted technologies.
On January 3, 2018, information on the security vulnerabilities was
publicly reported, before software and firmware updates to address
the vulnerabilities were made widely available. Numerous lawsuits
have been filed against Intel and, in certain cases, the company's
current and former executives and directors, in U.S. federal and
state courts and in certain courts in other countries relating to
the Spectre and Meltdown security vulnerabilities, as well as
another variant of these vulnerabilities ("Foreshadow") that has
since been identified.
As of October 23, 2019, consumer class action lawsuits relating to
certain security vulnerabilities publicly disclosed in 2018 were
pending in the United States, Canada, and Israel.
The plaintiffs, who purport to represent various classes of
purchasers of the company's products, generally claim to have been
harmed by Intel's actions and/or omissions in connection with the
security vulnerabilities and assert a variety of common law and
statutory claims seeking monetary damages and equitable relief.
In the U.S., numerous individual class action suits filed in
various jurisdictions were consolidated in April 2018 for all
pretrial proceedings in the U.S. District Court for the District of
Oregon. Intel filed a motion to dismiss that consolidated action in
October 2018, and a hearing on that motion was held in February
2019.
In Canada, in one case pending in the Superior Court of Justice of
Ontario, an initial status conference has not yet been scheduled.
In a second case pending in the Superior Court of Justice of
Quebec, the court entered an order in October 2018, staying that
case for one year.
In Israel, both consumer class action lawsuits were filed in the
District Court of Haifa. In the first case, the District Court
denied the parties' joint motion to stay filed in January 2019, but
to date has deferred Intel's deadline to respond to the complaint
in view of Intel's pending motion to dismiss in the consolidated
proceeding in the U.S. Intel filed a motion to stay the second case
pending resolution of the consolidated proceeding in the U.S., and
a hearing on that motion has been scheduled for November 2019.
Additional lawsuits and claims may be asserted seeking monetary
damages or other related relief.
Intel said, "The company disputes the pending claims described
above and intend to defend those lawsuits vigorously. Given the
procedural posture and the nature of those cases, including that
the pending proceedings are in the early stages, that alleged
damages have not been specified, that uncertainty exists as to the
likelihood of a class or classes being certified or the ultimate
size of any class or classes if certified, and that there are
significant factual and legal issues to be resolved, we are unable
to make a reasonable estimate of the potential loss or range of
losses, if any, that might arise from those matters."
Intel Corporation offers computing, networking, data storage, and
communication solutions worldwide. It operates through Client
Computing Group, Data Center Group, Internet of Things Group,
Non-Volatile Memory Solutions Group, Programmable Solutions Group,
and All Other segments. The company was founded in 1968 and is
based in Santa Clara, California.
INTEL CORP: Settlement in McFee Acquisition Suit Wins Final Okay
----------------------------------------------------------------
Intel Corporation said in its Form 10-Q Report filed with the
Securities and Exchange Commission on October 25, 2019, for the
quarterly period ended September 28, 2019, that the court in the
class action suit related to the company's acquisition of McAfee,
Inc. has granted plaintiffs' motion for final approval of a
settlement.
On August 19, 2010, the company announced that it had agreed to
acquire all of the common stock of McAfee, Inc. (McAfee) for $48.00
per share. Four McAfee shareholders filed putative class-action
lawsuits in Santa Clara County, California Superior Court
challenging the proposed transaction.
The cases were ordered consolidated in September 2010. Plaintiffs
filed an amended complaint that named former McAfee board members,
McAfee, and Intel as defendants, and alleged that the McAfee board
members breached their fiduciary duties and that McAfee and Intel
aided and abetted those breaches of duty. The complaint requested
rescission of the merger agreement, such other equitable relief as
the court may deem proper, and an award of damages in an
unspecified amount. In June 2012, the plaintiffs' damages expert
asserted that the value of a McAfee share for the purposes of
assessing damages should be $62.08.
In January 2012, the court certified the action as a class action,
appointed the Central Pension Laborers' Fund to act as the class
representative, and scheduled trial to begin in January 2013. In
March 2012, defendants filed a petition with the California Court
of Appeal for a writ of mandate to reverse the class certification
order; the petition was denied in June 2012.
In March 2012, at defendants' request, the court held that
plaintiffs were not entitled to a jury trial and ordered a bench
trial. In April 2012, plaintiffs filed a petition with the
California Court of Appeal for a writ of mandate to reverse that
order, which the court of appeal denied in July 2012.
In August 2012, defendants filed a motion for summary judgment. The
trial court granted that motion in November 2012 and entered final
judgment in the case in February 2013. In April 2013, plaintiffs
appealed the final judgment. The California Court of Appeal heard
oral argument in October 2017, and in November 2017, affirmed the
judgment as to McAfee's nine outside directors, reversed the
judgment as to former McAfee director and chief executive officer
David DeWalt, Intel, and McAfee, and affirmed the trial court's
ruling that the plaintiffs are not entitled to a jury trial.
At a June 2018 case management conference following remand, the
Superior Court set an October hearing date for any additional
summary judgment motions that may be filed, and set trial to begin
in December 2018. In July 2018, plaintiffs filed a motion for leave
to amend the complaint, which the court denied in September 2018.
Also, in July 2018, McAfee and Intel filed a motion for summary
judgment on the aiding and abetting claims asserted against them;
in October 2018, the court granted the motion as to McAfee and
denied the motion as to Intel.
The parties agreed in principle to settle the case in late October
2018, and finalized the settlement agreement in March 2019. The
court granted plaintiffs' motion for preliminary approval of the
settlement in May 2019, and granted plaintiffs' motion for final
approval of the settlement in October 2019. The settlement requires
an aggregate payment by defendants of $12 million. Intel's
contribution to the settlement is immaterial to its financial
statements.
Intel Corporation offers computing, networking, data storage, and
communication solutions worldwide. It operates through Client
Computing Group, Data Center Group, Internet of Things Group,
Non-Volatile Memory Solutions Group, Programmable Solutions Group,
and All Other segments. The company was founded in 1968 and is
based in Santa Clara, California.
JILLIAN MICHAELS: Court Rules on Class Certification Bid
--------------------------------------------------------
In the class action lawsuit styled as Lisa Friedman, the Plaintiff
v. Jillian Michaels, et al., the Defendants, Case No.
2:18-cv-09414-GW-SS (C.D. Cal.), the Hon. Judge George H. Wu
entered an order on Oct. 23, 2019, adopting its October 10, 2019
tentative ruling as its final order as to the Motion for Class
Certification.
The Court said it will discuss with the parties what effect, if
any, the Court's ruling on Defendants' Motion for Summary Judgment
should have on the class as certified.
On November 4, 2019, Defendants EM Digital, LLC, Empowered Media,
LLC, Jillian Michaels filed a Supplemental Briefing in Support of
Defendants' Motion for Summary Judgment. On the same day,
Plaintiff a Supplemental Brief in Opposition to Defendants' Motion
for Summary Judgment.
In this putative class action filed against Jillian Michaels, EM
Digital, LLC and Empowered Media, LLC on August 20, 2018,
Plaintiff
Lisa Friedman seeks certification of a class (along with
appointment as class representative and appointment of class
counsel) pursuant to Rules 23(a) and 23(b)(2) and (b)(3) of the
Federal Rules of Civil Procedure. The Plaintiff filed the
operative First Amended Class Complaint for Damages and Injunctive
Relief ("FACC") on May 16, 2019.
The FACC presents claims for: 1) violation of the California
Unfair
Competition Law, 2) violation of the California Consumer Legal
Remedies Act, and 3) violation of California False Advertising
Law.
As the FACC initially describes the subject matter of the case, it
concerns the Defendants' automatic renewals of consumers'
subscriptions to the Defendants' "My Fitness by Jillian Michaels"
service without disclosing that feature of the transaction and
without obtaining the consumers' affirmative consent.
In the Motion, the Plaintiff has defined the class she now seeks
to
certify as "All consumers, who were first charged from January 1,
2017 to the present, whose credit cards or debit cards were
automatically charged on a recurring basis by Defendants as part
of
a subscription to the 'My Fitness by Jillian Michaels'
service."[CC]
The Plaintiff is represented by:
Jesenia A. Martinez, Esq.
John P. Kristensen, Esq.
KRISTENSEN WEISBERG LLP
12540 Beatrice St., Suite 200
Los Angeles, CA 90066-7059
Telephone: (310) 507-7924
E-mail: jesenia@kristensenlaw.com
john@kristensenlaw.com
The Defendants are represented by:
Richard S. Busch, Esq.
Keith Kelly, Esq.
KING & BALLOW
1999 Ave. of the Stars, Suite 1100
Century City, CA 90067
Telephone: (424) 253-1255
Facsimile: (888) 688-0482
E-mail: rbusch@kingballow.com
kkelly@kingballow.com
JOHNSON & JOHNSON: Continues to Defend Talcum-Powder Lawsuits
-------------------------------------------------------------
Theron Mohamed, writing for Markets Insider, reports that Johnson &
Johnson's finance chief has accused lawyers of splurging hundreds
of millions on advertising to build class-action lawsuits that
falsely claim the talc in its products cause cancer.
Talc, a mineral in baby powder and other drying products, is "the
poster child for how big a business plaintiffs' attorneys have made
this type of approach," CFO Joseph Wolk said on the healthcare
giant's third-quarter earnings call. Johnson & Johnson is also
fending off class-action lawsuits centered on its anti-psychotic
drug Risperdal and its role in fueling the opioid crisis.
"The plaintiffs bar in total has spent over $400 million this year
alone in advertising on TV, trying to drum up the numbers in
class-action suits," Wolk continued. "It's become a $36 billion
industry."
However, Johnson & Johnson has repeatedly denied that talc is
dangerous.
"We're going to continue to defend a product that we know to be
safe, that we know does not cause cancer," Wolk said. "That's not
just the opinion of Johnson & Johnson's scientists, that's the
opinion of respected institutions like the National Cancer
Institute, the FDA and numerous prestigious universities."
Other experts aren't so sure. "It is not clear if consumer products
containing talcum powder increase cancer risk," the American Cancer
Society says on its website.
There were 15,500 plaintiffs involved in talcum-powder lawsuits
against Johnson & Johnson as of June 30, up from 1,400 in early
2016, the Wall Street Journal reported.
The company continues to battle the claims. It has appealed a $4.7
billion jury award to 22 women and their families who alleged its
baby powder caused ovarian cancer, the Journal said. Moreover,
Reuters reported a Missouri appeals court overturned a $110 million
verdict against the company -- although that was because an
out-of-state plaintiff brought the case. [GN]
JOHNSON & JOHNSON: Court Dismisses Enriquez Opioid Lawsuit
----------------------------------------------------------
The Superior Court of New Jersey, Law Division, Camden County, has
entered an order dismissing the case captioned MATTHEW ENRIQGUEZ,
individually and on behalf of all others similarly situated
Plaintiff, v. JOHNSON & JOHNSON; JANSSEN PHARMACEUTICALS, INC.;
ACTA VIS PHARMA, INC.; and ACTA VIS LLC, Defendants. No.
CAM-L-4677-18. (N.J. Super. Ct.)
Plaintiff Matthew Enriguez is a New Jersey resident who alleges
that he purchased health insurance from Blue Cross Blue Shield.
Plaintiff asserts that as a result of the conduct of Defendants,
New Jersey health insurers paid higher costs for both opioids and
addiction treatment, resulting in increased costs to health
insurers. Plaintiff alleges that health insurers passed these
higher costs on to their insureds, causing class members to pay
higher costs for health insurance.
Defendants Johnson & Johnson Pharmaceuticals, Janssen
Pharmaceuticals, Inc., Actavis Pharma, Inc. and Actavis LLC filed a
motion asking the Court to dismiss with prejudice Plaintiff's
Complaint for failure to state a claim pursuant to R. 4:6-2(e). The
Actavis Defendants further assert that they only manufacture
generic opioid medications and do no promotion for those
medications. Janssen Pharmaceuticals, Inc. asserts that it is a
separate corporate entity which does not manufacture opioid
medications.
Plaintiff's Complaint consists of five (5) separate Counts.
I. Count I alleges violations of New Jersey's Consumer Fraud
Act (NJCFA or CFA) based on Defendants' alleged deceptive
marketing practices resulting in the improper sale of
opioids, causing Plaintiff and Class Members to pay
higher insurance premiums, co-pays and deductibles.
II. Count II alleges an unreasonable interference with a common
right to the general public causing a Public Nuisance based
upon Defendants' promotion of opioids in such a fashion
that they knew or should have known was false and
misleading, causing harm to Plaintiff and Class Members.
III. Count III alleges unjust enrichment against all Defendants
as a result of Defendants voluntarily accepting and
retaining the inflated prices for opioids for which
Plaintiff and Class Members incurred the cost by paying
higher health insurance costs.
IV. Count IV alleges negligence against all Defendants. It is
asserted that Defendants had a duty to exercise reasonable
care in manufacturing and distributing highly dangerous
medications, namely opioids, and further that Defendants
knew or should have known that by providing misleading
information to doctors and insurers about such
pharmaceuticals, it was foreseeable that not only would
there be misuse, abuse and addiction, but further that
the costs for both the drugs and addiction treatment
would ultimately fall on health insurers who would pass
those costs along to purchasers of health insurance.
V. Count V alleges negligent interference with prospective
economic advantage against all Defendants. Plaintiff
asserts that each Defendant had a duty to exercise
reasonable care in manufacturing and distributing opioids.
Plaintiff claims that he and Class Members had an
economic relationship with the insurers and that
Defendants' conduct interfered with that relationship,
causing Plaintiff and Class Members to pay increased
health insurance costs.
Defendants moved to dismiss all Counts of the Complaint for failure
state a claim. Defendants assert Plaintiff's claims fail for: lack
of causation for all claims; failure to plead the fraud claim with
particularity; failure to plead a cognizable injury; lack of CFA
applicability; and failure to plead an interference with a public
right. Defendants further move to dismiss the class allegations for
lack of commonality and predominance.
The Superior Court states that the question presented to the court
is whether the Plaintiff and the proposed class are the appropriate
representatives to seek compensation and accountability for the
reprehensible conduct alleged.
The Superior Court opines, "The allegations of the complaint
sufficiently allege facts to support Plaintiff's claim of the
complicity of Defendants in creating and perpetuating the opioid
crisis. The court concludes that while Defendants should be held
responsible for such conduct if established, this particular
Plaintiff and this particular proposed class are simply not the
appropriate vehicle to vindicate the rights of those who have been
impacted by the alleged conduct of Defendants. The alleged harm to
Plaintiff is far too attenuated and remote. This deficiency cannot
be cured by amending the Complaint."
Accordingly, the Superior Court grants the motion to dismiss. The
Plaintiff's Complaint will be dismissed, with prejudice, the Court
orders.
A full-text copy of the Superior Court's October 10, 2019 Opinion
is available at https://tinyurl.com/y56fb4l7 from Leagle.com
Joshua Morris Neuman, Esquire , Kilcoyne & Nesbit, LLC,Commerce
Corporate Center, 5050 Tilghman Street, Suite 115, Allentown, PA
18104, Counsel for Plaintiff, Matthew Enriguez, individually and on
behalf of all others similarly situated.
Ashley Keller- ack@kellerlenkner.com - Esquire and Travis Lenkner -
tdl@kellerlenkner.com - Esquire , Keller Lenkner LLC, pro hac
vice, Counsel for Plaintiff Matthew Enriguez, individually and on
behalf of all others similarly situated.
William S. Consovoy, Esquire , Consovoy McCarthy Park PLLC, 3033
Wilson Boulevard Suite 700 Arlington, VA 22201 pro hac vice,
Counsel for Plaintiff Matthew Enriguez, individually and on behalf
of all others similarly situated.
Martin B. Gandelman - mgandelman@ck-litigation.com - Esquire and
Walter R. Krzastek-
walterk@ck-litigation.com - Esquire , Calcagni & Kanefsky, LLP,
Counsel for Defendants, Johnson & Johnson and Janssen
Pharmaceuticals, Inc.
Ross B. Galin - rgalin@omm.com - Esquire , and Amy Laurendeau -
alaurendeau@omm.com - Esquire , O'Melveny & Myers LLP, pro hac
vice, Counsel for Defendants, Johnson & Johnson and Janssen
Pharmaceuticals, Inc.
Harvey Bartle, IV, Esquire , Morgan, Lewis & Bockius, LLP, 1701
Market Street Philadelphia, PA 19103, Counsel for Defendants,
Actavis Pharma, Inc. and Actavis LLC.
Rebecca Hillyer, Esquire and Steven A. Reed, Esquire , Morgan,
Lewis & Bockius, LLP, 1701 Market Street Philadelphia, PA 19103,
pro hac vice, Counsel for Defendants, Actavis Pharma, Inc. and
Actavis LLC.
JOINT UNDERWRITING: Court Dismisses Ronda RICO Suit
---------------------------------------------------
The United States District Court for the District of Puerto Rico
issued an Order granting Defendants' Joint Motion for Summary
Judgment in the case captioned NOEMI TORRES RONDA and ANGELO RIVERA
LAMBOY, Plaintiffs, v. JOINT UNDERWRITING ASSOCIATION; CARIBBEAN
ALLIANCE INSURANCE COMPANY; CHARTIS INSURANCE COMPANY OF PUERTO
RICO; COOPERATIVA DE SEGUROS MULTIPLES DE PUERTO RICO; INTEGRAND
ASSURANCE COMPANY; MAPFRE-PRAICO; NATIONAL INSURANCE COMPANY;
OPTIMA INSURANCE COMPANY; REAL LEGACY ASSURANCE COMPANY, INC.;
ROYAL & SUN ALLIANCE OF PUERTO RICO, INC.; SEGUROS TRIPLE-S
PROPIEDAD INC.; UNIVERSAL INSURANCE COMPANY; ALLSTATE INSURANCE
COMPANY; GENERAL ACCIDENT INSURANCE COMPANY; NATIONWIDE MUTUAL
INSURANCE COMPANY; RAMON L. CRUZ COLON, in his official capacity as
Insurance Commissioner of the Commonwealth of Puerto Rico; RUBEN A.
HERNANDEZ GREGORAT, in his official capacity as Secretary of the
Department of Transportation and Public Works; and JESUS F. MENDEZ,
in his official capacity as Secretary of the Department of the
Treasury of the Commonwealth of Puerto Rico, Defendants. Civil
11-1826CCC. (D.P.R.)
Before the Court is Defendants' Joint Motion for Summary Judgment.
Plaintiffs allege that defendants took advantage of Law 253 of
1995, the Compulsory Motor Vehicle Liability Insurance Act, which
requires every motor vehicle owner to buy automobile insurance for
a set premium of $99. Plaintiffs allege that JUA and defendant
insurance companies are required by law to refund to purchasers a
portion of the premium intended for acquisition and administrative
costs that were never expended. Rather than issuing such a refund,
plaintiffs allege that the defendants conspired to retain the full
premium.
STANDARD OF REVIEW
Summary judgment is appropriate when there is no genuine dispute as
to any material fact and the moving party is entitled to judgment
as a matter of law. The Court look to the pleadings, depositions,
answers to interrogatories, admissions on file, and any affidavits
in making the determination. A dispute is genuine if the evidence
about the fact is such that a reasonable jury could resolve the
point in favor of the non-moving party. A fact is material if it
has potential to determine the outcome of the litigation.
Once a properly supported motion has been presented, where a
nonmovant bears the burden of proof on an issue, the nonmovant must
point to competent evidence and specific facts to defeat summary
judgment.
Racketeer Influenced and Corrupt Organizations Act
A civil RICO suit must allege violations of 18 U.S.C. Section
1962(c), which states that it shall be unlawful for any person
employed by or associated with any enterprise engaged in, or the
activities of which affect, interstate or foreign commerce, to
conduct or participate, directly or indirectly, in the conduct of
such enterprise's affairs through a pattern of racketeering
activity or collection of unlawful debt. Only a person injured in
his business or property by reason of a violation of 18 U.S.C.
Section 1962 has standing to bring a private civil RICO action.
The definition of racketeering activity is found at 18 U.S.C.
Section 1961(1), and at least two related acts included in such
definition are required to establish a pattern. Included under the
definition of racketeering activity is any act which is indictable
under 18 U.S.C. Section 1341 (mail fraud). There are two elements
to mail fraud: (1) having devised or intending to devise a scheme
to defraud or to perform specified fraudulent acts) and (2) use of
the mail for the purpose of executing, or attempting to execute,
the scheme or specified fraudulent acts.
Puerto Rico Compulsory Insurance
Law No. 253 of 1995 established a new compulsory automobile
insurance system, created JUA, and required all private insurance
companies underwriting automobile insurance to become members of
JUA. Law No. 253 set the price of compulsory auto insurance at $99,
27 L.P.R.A. Section 8056, and provides that the insurance premium
is not refundable.
Count One
Count One alleges that defendants violated RICO because they
knowingly, intentionally and unlawfully, aided and abetted, and
conspired with each other, to devise, or intend to devise the
Scheme to Defraud, by which they were to illegally obtain, acquire
and maintain control of the refundable payments paid by the
Representative Plaintiffs and Class Members, to later illegally
keep those assets for their own pecuniary benefit and interest.
Plaintiffs allege that they were economically injured by
defendants' actions because they are entitled to a refund of a
portion of the premiums paid for compulsory liability insurance
specifically, 8% of the premium intended to be used to for
acquisition expenses, such as commissions paid to insurance
brokers, and 4% of the premium intended to be used for
administrative expenses, such as providing paper copies of
insurance policies.
Plaintiffs argue three theories of mail fraud: (1) the defendants
caused DTPW to mail billing statements for compulsory insurance
that failed to inform consumers that parts of the insurance premium
were refundable (2) the defendants caused DTPW to mail billing
statements for compulsory insurance that charged acquisition and
administrative costs that would not be incurred (3) JUA failed to
place excess premium funds in the Special Reserve created by Rule
LXX.
Plaintiffs' first claim, that defendants committed mail fraud by
causing DPTW to omit on billing documents that a portion of the
premium is refundable, must fail because the conduct that plaintiff
identifies as fraudulent is required by law. The DPTW must bill for
compulsory insurance premiums at a cost of $99. Nothing in the
compulsory insurance statute requires the DTPW to state that any
portion of the premium is refundable.
Whether or not defendants influenced the drafting of the statute or
accompanying regulations in a way that benefitted them, as
plaintiffs allege, Law 253 is the law of Puerto Rico, and
compliance with its terms cannot constitute mail fraud.
The second claim alleges that defendants committed mail fraud by
causing DTPW to mail billing documents charging the full $99
compulsory insurance premium and then failing to refund the portion
of the premium not actually spent on acquisition or administrative
costs. As to the remaining private insurance companies, assuming,
arguendo, that they are legally required to refund excess premium
payments, there is no racketeering activity as required to support
a RICO claim. As previously stated, DTPW is required by law to
charge a $99 premium, 26 L.P.R.A. Section 8056, and compliance with
the law cannot constitute mail fraud.
There are no facts in dispute which, when viewed in the light most
favorably to the plaintiffs, would permit a finding of mail fraud
by JUA or the private insurance companies.
The third claim pertains solely to JUA. Plaintiff alleges that JUA
has failed to place excess funds in the Special Reserve, as
required by Rule LXX (d.e. 46-1). Plaintiff's Complaint does not
include this theory; it was raised by plaintiffs for the first time
in their Opposition to the Motion for Summary Judgment. This claim
is not obviously related to the mailings by DPTW, which the Court
have already found cannot constitute mail fraud. In addition,
plaintiffs have not alleged that they have been injured in their
business or property by JUA's alleged failure to place funds in the
Special Reserve.
This claim must fail under RICO because, assuming, arguendo, that
JUA has failed to place funds in the Special Reserve, there are no
facts in dispute that, when viewed in the light most favorable to
plaintiffs, would allow a factfinder to find mail fraud or an
injury that would confer plaintiffs standing.
Even accepting plaintiffs' factual allegations as true and drawing
all reasonable inferences in their favor, a reasonable trier of
fact could not find that mail fraud constituting racketeering
activity occurred. Accordingly, plaintiffs' RICO claim fails as a
matter of law and summary judgment must be granted in favor of
defendants as to Count One.
Count Two
Count Two alleges that defendant JUA violated 18 U.S.C.
Section1962(a) by transmitting racketeering proceeds to a bank
outside of Puerto Rico. As plaintiffs' racketeering claim at Count
One has failed, no racketeering proceeds can be established.
Accordingly, summary judgment must be granted in favor of
defendants as to Count Two.
Count Three
Count Three alleges that all defendants violated 18 U.S.C. Section
1562(d) by conspiring to transfer racketeering proceeds as alleged
in Count Two. As plaintiffs' racketeering claim has failed, no
racketeering proceeds can be established. Accordingly, summary
judgment must be granted in favor of defendants as to Count Three.
Count Four
The Court's jurisdiction in this matter rest upon federal question
jurisdiction under 28 U.S.C. Section 1331. Having granted summary
judgment in favor of defendants on all federal causes of action,
the Court declines to exercise supplemental jurisdiction over
plaintiffs' remaining claims under Commonwealth law.
The Court GRANTS appearing defendants' Joint Motion for Summary
Judgment and all defendants' Motion for Summary Judgment.
A full-text copy of the District Court’s September 30, 2019 Order
is available at https://tinyurl.com/y5xqevur from Leagle.com
Noemi Torres-Ronda & Angelo Rivera-Lamboy, Plaintiffs, represented
by Eric M. Quetglas-Jordan -quetglaslaw@gmail.com - Quetglas Law
Office PSC, Pedro R. Vazquez, III , Pedro R. Vazquez Law Office 405
Esmeralda Ave Pmb 153, Guaynabo, PR, 00969-4457 & Jose F. Quetglas
, Quetglas Law Office, 1021 Ave. Ashford CondadoSanturce, PR 00907
Joint Underwriting Association, Defendant, represented by Mario A.
Arroyo-Maymi , Mario Arroyo Law Offices P.S.C., PMB 379, 1353 Ave.
Luis Vigoreaux, Guaynabo, P.R. 00966, Moraima S. Rios-Robles -
mrios@arroyorioslaw.com - Arroyo & Rios Law Offices, P.S.C. &
Yamilette Vega-Motta - yvega@arroyorioslaw.com - Arroyo & Rios Law
Offices, P.S.C.
Chartis Insurance Company of Puerto Rico & Allstate Insurance
Company, Defendants, represented by Carmen M. Alfonso-Rodriguez -
car@mcvpr.com - McConnell Valdes, LLC, Eduardo A. Zayas-Marxuach -
ezm@mcvpr.com - McConnell Valdes, LLC, Anders C. Wick , Dentons US
LLP, 1221 Ave. of the Americas, New York, New York 10020, pro hac
vice & Mark L. Hanover , Dentons US LLP, 1221 Ave. of the Americas,
New York, New York 10020
Cooperativa de Seguros Multiples de Puerto Rico, Real Legacy
Assurance Co., Inc. & Royal & Sun Alliance of Puerto Rico Inc.,
Defendants, represented by Pedro R. Cintron-Rivera , Pedro R.
Cintron Rivera Law Office, PO Box 1094Fajardo, PR 00738- 1094
JUUL LABS: Rochester Sues Over Underage Nicotine/Vaping Addiction
-----------------------------------------------------------------
City of Rochester, New Hampshire, Individually and on Behalf of All
Others Similarly Situated v. JUUL LABS, INC. and ALTRIA GROUP,
INC., Case No. 3:19-cv-07298 (N.D. Cal., Nov. 6, 2019), asserts
claims for violations of the New Hampshire Consumer Protection Act,
violation of the Racketeer Influenced and Corrupt Organizations
Act, public nuisance, negligence and unjust enrichment.
The action arises out of the Defendants' creation of a nationwide
epidemic--based on numerous fraudulent activities--of underage
nicotine addiction caused by "vaping" with JUUL's popular
electronic cigarette or "e-cigarette," which has directly resulted
in the Plaintiff and other municipalities, counties, and schools in
New Hampshire and across the country to expend their limited
resources to attempt to curb the severe public nuisance the
Defendants created, and which is ongoing.
The Defendants created the public nuisance by, among other things:
designing the JUUL e-cigarette and its packaging to aesthetically
appeal to kids and be easily concealable; selling nicotine
cartridges or "JUULpods" in multiple fruity flavors that appeal to
kids; designing its patented nicotine formula to be significantly
more addictive than cigarettes; directly marketing the JUUL
e-cigarette to children through youthful and vibrant images in
print advertising and by paying "influencers" to endorse JUUL's
products and by making purported "educational" presentations to ids
on school campuses to falsely represented and the purported
"safety" of JUUL's e-cigarette; and making false and misleading
statements about the safety of the JUUL e-cigarette and downplaying
or omitting disclosure of the risks of addiction associated with
its use, says the complaint.
The City of Rochester, New Hampshire, is a city in Strafford
County, New Hampsire.
JUUL manufactures, markets, and sells e-cigarettes and pre-filled
nicotine cartridges called JUULpods.[BN]
The Plaintiff is represented by:
Shawn A. Williams, Esq.
ROBBINS GELLER RUDMAN & DOWD LLP
Post Montgomery Center
One Montgomery Street, Suite 1800
San Francisco, CA 94104
Phone: 415/288-4545
Fax: 415/288-4534
Email: shawnw@rgrdlaw.com
KRAFT HEINZ: Hedick & Iron Workers Securities Suits Consolidated
----------------------------------------------------------------
Judge Robert M. Dow, Jr. of the U.S. District Court for the
Northern District of Illinois, Eastern Division, consolidated the
cases GEORGE A. HEDICK, JR., et al., Plaintiffs, v. THE KRAFT HEINZ
COMPANY, et. al., Defendants; IRON WORKERS DISTRICT COUNCIL
(PHILADELPHIA AND VICINITY) RETIREMENT AND PENSION PLAN, et al.,
Plaintiffs, v. THE KRAFT HEINZ COMPANY, et. al., Defendants; and
TIMBER HILL LLC Plaintiff, v. THE KRAFT HEINZ COMPANY, et. al.,
Defendants, Case Nos. 19-cv-1339, 19-cv-1845, 19-cv-2807 (N.D.
Ill).
The case is a securities class action against The Kraft Heinz,
Bernardo Hees, Paulo Basilio, and David H. Knopf. Six movants
requested that the Court consolidate the captioned cases and sought
appointment of Lead Plaintiff in the matter: (1) Michael Guzzi, Cam
Hung Diep, and James Tarsy; (2) The New York City Fund; (3) Earl
Chesson, The Chesson Limited Partnership, and Earl G. Chesson
Revocable Tryst U/A DTD 4/11/2017 ("Chesson Group"); (4) Arca
Investments and Krupa Global Investments; (5) Sjunde AP-Fonden
("AP7") and Union Asset Management Holding AG; and (6) Timber Hill
LLC. The motion by movants Michael Guzzi, Cam Hung Diep, and James
Tarsy was terminated as moot after they filed a motion to
withdraw.
The Plaintiffs bring the action as a class action pursuant to
Federal Rule of Civil Procedure 23(a) and (b)(3) on behalf of a
Class, consisting of all those who purchased or otherwise acquired
Kraft securities publicly traded on NASDAQ during the class period
and were damaged upon the revelation of the alleged corrective
disclosures.
Before the Court are the remaining Lead Plaintiff motions. Also
before the Court are the AP7/Union Group's motion for discovery;
the AP7/Union Group's motion for leave to file a sur-reply to
address arguments that it contends that the NYC Fund raised for the
first time in its reply brief; the NYC Fund's motion to take
judicial notice of the master agreement between the New York City
Law Department and Kessler Topaz Meltzer & Check, LLP dated Feb. 8,
2019; and various motions to seal.
The actions arise from alleged violations of the Securities
Exchange Act of 1934 and related rules and regulations by the
Defendants. Defendant Kraft Heinz manufactures and markets food
and beverage products in the United States, Canada, Europe, and
internationally.
Judge Dow finds that the present complaints are based on the same
challenged conduct and there are common questions of law and fact.
Furthermore, no party has identified any prejudice that would
result from consolidating these actions. Accordingly, Judge Dow
grants the pending motions to consolidate the captioned cases.
Next, Judge Dow concludes that the AP7/Union group has the largest
financial interest in the relief sought by the class. Based on all
of the available information, he concludes that the AP7/Union Group
is sufficiently cohesive to represent the interests of the class.
AP7/Union Group has the biggest financial loss in the amount of
$24,789,508.
Given the many qualified potential lead plaintiffs and counsel who
have come forward at the initial stage of the case to offer their
services, lead plaintiff and counsel undoubtedly will be carefully
monitored going forward, both externally and by the Court itself,
to ensure that no unaddressed conflicts arise, Judge Dow opines.
The Judge is not, however, persuaded to disregard the presumption
established by the PSLRA based on speculative future conflicts. He
therefore concludes that the AP7/Union Group alone is presumed the
most adequate Plaintiff under the PSLRA.
The Judge appoints Kessler Topaz and Bernstein Litowitz to serve as
the co-lead counsel. Both of these firms have extensive
experience in the area of securities law.
Finally, to the extent that the NYC Fund's redactions are made to
protect investment strategies beyond strategies that are common
industry knowledge, Judge Dow agrees that sealing the NYC Fund's
unredacted submissions may be appropriate. However, after an
initial review of the materials redacted, he is not satisfied that
the NYC Fund's redactions are so limited. He recognizes that the
NYC Fund only redacted a small portion of its submissions, but that
does not relieve the Court of its obligation to determine whether
good cause exists to seal those portions of the NYC Fund's
submissions. Although the Judge leaves open the possibility that
there is good cause to seal portions of the NYC Fund's submissions,
some of the redactions clearly are not supported by good cause.
Given the number of pending motions to seal and the fact that the
NYC Fund also seeks to file documents under seal on privilege
grounds, Judge Dow will refer the remaining sealing issues to the
assigned magistrate judge for resolution.
For the reasons set forth, Judge Dow consolidated the captioned
cases. The Judge further granted the lead plaintiff motion of the
AP7/Union Group and approved the selection of Kessler Topaz Meltzer
& Check, LLP and Bernstein Litowitz Berger & Grossmann LLP as the
co-lead counsel. He denied the remaining lead plaintiff motions in
full. The AP7/Union Group's motion for discovery, the AP7/Union
Group's motion for leave to file a sur-reply, and the NYC Fund's
motion to take judicial notice are denied as moot. The motions to
seal is referred to a magistrate.
A full-text copy of the District Court's Oct. 8, 2019 Memorandum
Opinion & Order is available at https://is.gd/YTypI5 from
Leagle.com.
George A. Hedick, Jr., individually and on behalf of all others
similarly situated, Plaintiff, represented by Gerald P. Meyer --
gmeyer@mololamken.com -- MoloLamken LLP, Megan Cunniff Church --
mchurch@mololamken.com -- MoloLamken LLP & Steven Francis Molo --
smolo@mololamken.com -- MoloLamken LLP.
Iron Workers District Council (Philadelphia and Vicinity)
Retirement and Pension Plan, Plaintiff, represented by Sharan
Nirmul, Kessler Topaz Meltzer Check, John Michael Robinson, Quinn
Emanuel Urquhart & Sullivan, Llp & Jonathan Christian Bunge, Quinn
Emanuel Urquhart & Sullivan LLP.
Timber Hill LLC, Plaintiff, represented by Andrew J. Entwistle,
Entwistle & Cappucci, LLP, Andrew Mitchell Sher, Entwistle and
Cappucci LLP, pro hac vice, Claire Gorman Kenny, Moirano Gorman
Kenny, LLC, Michael H. Moirano, Moirano Gorman Kenny, LLC, Robert
N. Cappucci, ENTWISTLE & CAPPUCCI LLP, pro hac vice & Sean Michael
Riegert, Entwistle & Cappucci LLP, pro hac vice.
The Kraft Heinz Company, Defendant, represented by Daniel J. Kramer
-- dkramer@paulweiss.com -- Paul, Weiss, Rifkind, Wharton &
Garrison LLP, Andrew Ehrlich -- ehrlich@paulweiss.com -- Paul,
Weiss, Rifkind, Wharton & Garrison LLP, pro hac vice, Dean Nicholas
Panos -- dpanos@jenner.com -- Jenner & Block LLP, Gabriel Gillett
-- ggillett@jenner.com -- Jenner & Block, Llp, Howard Steven Suskin
-- hsuskin@jenner.com -- Jenner & Block LLP & William A. Clareman
-- wclareman@paulweiss.com -- Paul, Weiss, Rifkind, Wharton &
Garrison LLP, pro hac vice.
Bernardo Hees, Paulo Basilio & David H. Knopf, Defendants,
represented by Andrew Ehrlich, Paul, Weiss, Rifkind, Wharton &
Garrison LLP, Daniel J. Kramer, Paul, Weiss, Rifkind, Wharton &
Garrison LLP, William A. Clareman, Paul, Weiss, Rifkind, Wharton &
Garrison LLP, Dean Nicholas Panos, Jenner & Block LLP, Gabriel
Gillett, Jenner & Block, Llp & Howard Steven Suskin, Jenner & Block
LLP.
Michael Guzzi, Cam Hung Diep & James Tarsy, Movants, represented by
Carl V. Malmstrom, Wolf Haldenstein Adler Freeman & Herz LLC.
The New York City Funds, Movant, represented by Adam Farra, Cohen
Milstein Sellers & Toll PLLC, pro hac vice, Carol V. Gilden, Cohen
Milstein Sellers & Toll PLLC, Julie Goldsmith Reiser, Cohen,
Milstein, Sellers & Toll, P.L.L.C., pro hac vice & Laura Helen
Posner, Cohen Milstein Sellers & Toll PLLC, pro hac vice.
Earl Chesson, The Chesson Limited Partnership & EARL G. CHESSON
REVOCABLE TRYST U/A DTD 4/11/2017, Movants, represented by Gerald
P. Meyer, MoloLamken LLP, Steven Francis Molo, MoloLamken LLP,
Laurence Rosen, The Rosen Law Firm, P.A. & Phillip C. Kim, The
Rosen Law Firm, P.A., pro hac vice.
Arca Investments, a.s. & Krupa Global Investments, Movants,
represented by Alan Francis Curley, Robinson Curley P.C., C. Philip
Curley, Robinson Curley P.C., Robert C. Finkel, Wolf Popper, LLP &
Robert C. Finkel, Wolf Popper, LLP, pro hac vice.
Sjunde AP-Fonden & Union Asset Management Holding AG, Movants,
represented by Naumon A. Amjed, Kessler Topaz Meltzer & Check, LLP,
pro hac vice.
LINEAGE CELL: Faces Ross Class Action in Delaware Chancery Court
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A class action lawsuit has been filed against Lineage Cell
Therapeutics, Inc. The case is styled as NEIL D. ROSS,
Individually and On Behalf of All Others Similarly Situated, the
Plaintiff, vs. LINEAGE CELL THERAPEUTICS, INC. f/k/a BIOTIME, INC.,
BROADWOOD CAPITAL, INC., BROADWOOD PARTNERS, L.P., NEAL C.
BRADSHER, MICHAEL H. MULROY, DON M. BAILEY, ALFRED D. KINGSLEY,
RICHARD T. LEBUHN, ANDREW ARNO, STEPHEN L. CARTT, and ADITYA
MOHANTY, the Defendants, Case No. 2019-0822 (Del. Ch., Oct. 15,
2019).
Mr. Ross has submitted Affidavit and Verification pursuant to Court
of Chancery Rules 23(aa) and 3(aa) in connection with the filing of
the Verified Class Action Complaint. Mr. Ross sworned that he held
shares of Asterias Biotherapeutics, Inc. continuously throughout
the wrongs alleged in the Complaint.
Neither he, nor anyone else affiliated with him, have received,
been promised or offered, and will not accept any form of
compensation, directly or indirectly, for prosecuting or serving as
a representative party in the action except for:
(i) such damages or other relief as the Court may award me as
a member of the class;
(ii) such fees, costs or other payments as the Court expressly
approves to be paid to me or on my behalf; or
(iii) reimbursement, paid by my attorneys, of actual and
reasonable out-of-pocket expenses incurred by me directly in
connection with prosecution of the action, Mr. Ross said.
In March 2019, BioTime, Inc. (NYSE American and TASE: BTX),
announced the closing of its acquisition of Asterias
Biotherapeutics, whereby BioTime has acquired through a merger, all
of the remaining outstanding common stock of Asterias which was not
previously owned by BioTime. As a result of the acquisition,
Asterias became a wholly-owned subsidiary of BioTime and the
operations of BioTime and Asterias have combined. Notably, 98% of
BioTime votes cast and 96% of Asterias votes cast were in favor of
the merger.
Following the closing of the merger, BioTime has 151,579,482
million shares of common stock issued and outstanding with prior
BioTime stockholders collectively owning approximately 84% of the
combined company, and prior Asterias stockholders collectively
owning approximately 16% of the combined company.[BN]
M-I LLC: Bid to Recognize Green as Party in Coder FLSA Suit Denied
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In the case, ROBERT CODER, ET AL., v. M-I, LLC, SECTION: D (1),
Civil Action No. 17-15074-WBV-JVM, (E.D. La.), Judge Wendy B.
Vitter of the U.S. District Court for the Eastern District of
Louisiana denied Coder's Motion to Recognize William Green as a
Party Plaintiff.
On Dec. 6, 2017, Coder, individually and on behalf of all others
similarly situated, Murray Alford, Craig Dawson, Michael Maloy,
Robert Theiss and Cory Veuleman, filed a Complaint in the Court,
styled as a collective action, seeking to recover unpaid overtime
wages under the Fair Labor Standards Act ("FLSA") from the
Defendant. On Dec. 12, 2017, the case was consolidated with Civ.
A. No. 17-6124-GGG-JVM, Bocage v. M-I, LLC. After consolidation,
the Bocage matter became the lead consolidated case into which
further pleadings were filed.
On Jan. 3, 2018, Jeremy Bocage, the Plaintiff in the Bocage matter,
filed a Motion for Leave to File an Amended Complaint, seeking to
add Kenneth Abbas, Robert Armstrong, Mike Aucoin, Ernest Badeaux,
Jr., David Burford, Brian Carbo, Maxcillian Danos, III, Kenneth
Kidder, Terry Leeper, Ricky Livingston, Harry Mankle, Bradley
McKay, Phillip Palmer, Martin Ranstead, Garret Richard, James
Smith, Steven Sonnier, Mark Stockstill, Elwin Thomas, Dominique
Trahan and Larry Williamson as plaintiffs. The Court granted the
Motion for Leave on March 7, 2018.
Thereafter, on July 5, 2018, Coder filed a Notice of Filing Written
Consent to Join as the Plaintiffs in the consolidated matter,
asserting that William D. Green, William McBee and James E. Slack
have elected to become Plaintiffs in the lawsuit by filing the
attached written consent forms, in accordance with the provisions
of 29 U.S.C. Section 216(b). On July 6, 2018, the Clerk of Court
marked the pleading as deficient because it is an "Improper form of
pleading." Coder failed to address the deficiency or file any
further motion to request that a party be added until Oct. 8, 2019,
well over one year later.
On July 10, 2018, the Court issued an Order Deconsolidating Cases.
In the instant case, the parties recently filed joint stipulations
of dismissal with respect to Craig Dawson, Murray Alford, Michael
Maloy, Robert Theiss and Cory Veuleman, who have been dismissed
without prejudice from the case. Thus, the only remaining named
Plaintiff in the action is Coder.
As indicated, on Oct. 8, 2019, Coder filed the instant Motion,
requesting an Order from the Court recognizing that William Green
was properly joined as a collective action Plaintiff when he filed
his written consent to join the lawsuit on July 5, 2018, despite
the notice of deficiency and lapse of time since the notice. Coder
asserts that his counsel contacted the Court to clarify the
deficiency and "spoke to a member of the Court's staff," during
which the counsel pointed out that the case was filed as a putative
collective action and that additional Plaintiffs could be added by
filing a written consent to join under 29 U.S.C. Section 216(b).
Relying upon an Eleventh Circuit case, Coder argues that the only
requirement for Green to become a plaintiff in the case was to file
a written consent with the Court and be similarly situated to the
named Plaintiff. He contends that Green filee a written consent on
July 5, 2018, and that the Declarations of Coder and Green,
submitted in support of the instant Motion, clearly demonstrate
that they are similarly situated. Coder asserts that under the
three-factor test set forth in Lusardi v. Xerox Corp., Coder and
Green are similarly situated. Finally, Coder asserts that general
fairness and procedural considerations dictate that Green should be
recognized as an opt-in Plaintiff and allowed to proceed to trial
along with Coder.
The Defendant opposes the Motion, arguing that Green was never
properly added as a Plaintiff in the case. It asserts that Green
attempted to file his written consent, but that it was rejected by
the Court as deficient, and that Green took no action to correct
the deficiency. The Defendant further asserts that the instant
Motion is untimely and highly prejudicial to the Defendant because
it was filed over a month after the Court determined that Green was
not a proper party on Sept. 11, 2019.
Even if Green's consent had been timely or correctly filed, the
Defendant argues that he still cannot proceed in the action as an
opt-in Plaintiff because Coder has never moved for certification of
the class. It asserts that if a case does not proceed as a
collective action, the opt-in Plaintiffs are dismissed without
prejudice.
Alternatively, if Green is recognized as a Plaintiff, the Defendant
argues that it should be allowed to re-urge its motion to sever,
which would no longer be moot. Finally, the Defendant argues that
Coder's alternative request for the Court to toll the statute of
limitations on Green's claims is inappropriate because Coder has
not and cannot allege that an extraordinary circumstance prevented
Green's timely filing of his written consent.
Judge Vitter agrees with the Defendant that if a case does not
proceed as a collective action, any opt-in Plaintiffs must be
dismissed without prejudice. Thus, even if Green's written consent
to join the action as a Plaintiff was properly before the Court,
his claims would be dismissed without prejudice.
As previously noted, the Clerk of Court deemed the written consent
deficient and Coder failed to cure the deficiency by re-filing the
written consent or by filing a motion for leave to amend the
Complaint. Thus, Coder and Green cannot be said to have
"diligently pursued their rights," in light of the fact that their
request to equitably toll Green's claims was asserted approximately
15 months after they received the Clerk of Court's Notice of
Deficient Document on July 6, 2018. Further, Coder has not alleged
that an extraordinary circumstance prevented Green from timely
filing his written consent, nor has Coder alleged that Defendant
did anything to induce Green to delay re-filing his written
consent. Accordingly, Coder has failed to satisfy his burden of
proving that equitable tolling is warranted in the case.
For these reasons, Judge Vitter denied Coder's Motion to Recognize
William Green as a Party Plaintiff.
A full-text copy of the Court's Oct. 23, 2019 Order & Reasons is
available at https://is.gd/H3DllJ from Leagle.com.
Robert Coder, Individually and on Behalf of All others Similarly
Situated, Plaintiff, represented by Stephen N. Elliott --
elliotts@bcedlaw.com -- Bernard, Cassisa, Elliott & Davis, APLC &
Kenneth Joseph DeRoche, Jr. -- kderoche@bcedlaw.com -- Bernard,
Cassisa, Elliott & Davis, APLC.
M-I, LLC, doing business as M-I SWACO, Defendant, represented by
Sam Zurik, III -- sz@kullmanlaw.com -- Kullman Firm, MaryJo L.
Roberts -- mlr@kullmanlaw.com -- Kullman Firm & Robert P. Lombardi
-- rpl@kullmanlaw.com -- Kullman Firm.
MANTEI & ASSOCIATES: Court Denies Remand of Black Securities Suit
-----------------------------------------------------------------
The United States District Court for the District of South
Carolina, Columbia Division, denied Plaintiffs' Motion to Remand in
the case captioned DONALD BLACK, MARCIA BLACK, LARRY MARTIN,
REBECCA MARTIN, BARBARA THOMPSON, and JAMES THOMPSON, for
themselves and a class of similarly situated plaintiffs,
Plaintiffs, v. MANTEI & ASSOCIATES, RICKEY ALAN MANTEI, CINDY
CHIELLINI, CENTAURUS FINANCIAL, INC., and J.P. TURNER & CO., LLC,
Defendants, Civil Action No. 3:19-02097-MGL, (D.S.C.).
Plaintiffs commenced the class action in the Lexington County Court
of Common Pleas, alleging that Defendants advertised and sold
illiquid debt instruments to unsophisticated investors. Plaintiffs
allege the suit involves products including structured certificates
of deposit principal protected notes and medium term' corporate
bonds, all of which shared the same characteristics that Defendants
willfully misrepresented and/or concealed from Named Plaintiffs and
other Class Members.
Defendants removed the action to federal court based on 15 U.S.C.
Section 78bb(f)(2).
Plaintiffs now seek a remand of the action to state court.
Plaintiffs also request for attorney fees.
Congress, through the Securities Litigation Uniform Standards Act
of 1998 (SLUSA), manifested complete preemption for any state law
class actions claims over certain securities cases. 15 U.S.C. Sec.
78bb(f)(2). SLUSA preempts a claim if four elements are met: 1)
"the action is a covered class action," 2) "the action purports to
be based on state law," 3) "the defendant is alleged to have
misrepresented or omitted a material fact (or to have used or
employed any manipulative or deceptive device or contrivance)," and
4) the conduct described in element three is done "in connection
with the purchase or sale of a covered security." Green v.
Ameritrade, Inc., 279 F.3d 590, 596 (8th Cir. 2002).
Notwithstanding Plaintiffs' assertion the securities in question
are excluded securities, the complaint defines one category of
included products as debt instruments "with an interest rate that
was subject to fluctuations prior to maturity, which could decrease
to zero based on market variables, and which has or had a maturity
period greater than 10 years." Defendants identified four examples
of instruments fitting this definition, which had been sold to
Plaintiffs and would also fit under the definition of a covered
security. Each debt instrument was "equal or senior in seniority
than the common stock" of the offeree, traded on the New York Stock
exchange, and, therefore, a covered security.
Accordingly, SLUSA preemption applies inasmuch as the four elements
described above are met, the District Court finds. As such, federal
jurisdiction is present and this case is unsuited for remand, the
District Court opines.
A full-text copy of the District of Court's October 10, 2019
Memorandum Opinion and Order is available at
https://tinyurl.com/y3thojva from Leagle.com
Donald Black, For themselves and a Class of Similarly Situated
Plaintiffs, Marcia Black, For themselves and a Class of Similarly
Situated Plaintiffs, Larry Martin, For themselves and a Class of
Similarly Situated Plaintiffs, Rebecca Martin, For themselves and a
Class of Similarly Situated Plaintiffs, Barbara Thompson, For
themselves and a Class of Similarly Situated Plaintiffs & James
Thompson, For themselves and a Class of Similarly Situated
Plaintiffs, Plaintiffs, represented by Elizabeth Zeck , Willoughby
and Hoefer PA, Mitchell Myron Willoughby -
mwilloughby@willoughbyhoefer.com - Willoughby and Hoefer PA &
Robert Walker Humphrey, II - whumphrey@willoughbyhoefer.com -
Willoughby and Hoefer, pro hac vice.
Mantei & Associates, Ltd., Ricky Alan Mantei & Cindy Chiellini,
Defendants, represented by Michael Hart Montgomery , Montgomery
Willard, 1002 Calhoun Street, Columbia, South Carolina 29201-2406
Centaurus Financial, Inc., Defendant, represented by Joel Haywood
Smith - joel.smith@bowmanandbrooke.com - Bowman and Brooke &
Kevin Joseph Malloy - kevin.malloy@bowmanandbrooke.com - Bowman
and Brooke.
J.P. Turner & Company, L.L.C, Defendant, represented by Cory E.
Manning , Nelson Mullins Riley and Scarborough LLP, 1320 Main
Street, 17th Floor, Columbia, SC 29201
MARISCOS EL PUERTO: Faces Gutierrez Wage and Hour Suit in Nevada
----------------------------------------------------------------
Ayde Azuccera Perez Gutierrez; Brenda Karla Gabrela Reyes Medrano;
Adriana Torres; Erika Socorro Valle Peralta; Salvador Vladimir
Jimenez Flores; and Virdiana Ramirez Roddriguez, individually and
on behalf of all other similarly situated v. MARISCOS EL PUERTO,
INC.; LA CATRINA, LLC; LA CATRINA ENTERTAINMENT, LLC; MANUELA
HERNANDEZ; JULIAN HERNANDEZ; GECOTR MORENO; and DANNY HERNANDEZ,
Case No. 2:19-cv-01940 (D. Nev., Nov. 5, 2019), is brought under
the Fair Labor Standards Act and the Nevada wage and hours laws
seeking compensation and credit for all of the Plaintiffs'
uncompensated work required or permitted by the Defendants.
The Defendants willfully failed to pay the Plaintiffs their minimum
wages and overtime wages, according to the complaint. The
Plaintiffs also allege that the Defendants engaged in grossly
unlawful and criminal activities against the Plaintiffs, such as
sexual harassment, battery, assaults, rapes, defamation and public
disclosure of private facts.
The Plaintiffs were workers employed by the Defendants as part of
their bar and restaurant business.
The Defendants operate a bar and restaurant business commonly known
as La Catrina Car & Grill and Maricos El Puerto located in Las
Vegas, Nevada.[BN]
The Plaintiffs are represented by:
Jakub P. Medrala, Esq.
THE MEDRALA LAW FIRM, PROF. LLC
1091 S. Cimarron Road, Suite A-1
Las Vegas, NV 89145
Phone: (702) 475-884
Facsimile: (702) 475-884
Email: jmedrala@medralalaw.com
MCCABE WEISBERG: Violates Fair Debt Collection Act, Del Rio Says
----------------------------------------------------------------
Alfred Del Rio a/k/a Alfredo Del Rio and Olivia Del Rio v. McCABE,
WEISBERG & CONWAY, LLC; NEWREZ LLC D/B/A SHELLPOINT MORTGAGE
SERVICING; and THE BANK OF NEW YORK MELLON FKA THE BANK OF NEW
YORK, AS TRUSTEE FOR THE CERTIFICATEHOLDERS OF CWALT INC.,
ALTERNATIVE LOAN TRUST 2007-11T1, MORTGAGE PASS-THROUGH
CERTIFICATES, SERIES 2007-11T1, Case No. 1:19-cv-10312 (S.D.N.Y.,
Nov. 6, 2019), is brought for damages for individual consumers
arising from the Defendant's violations of the Fair Debt Collection
Practices Act and the New York Deceptive Acts and Practices law.
These laws prohibit debt collectors from engaging in abusive,
deceptive, and unfair collection practices.
The Plaintiffs allegedly entered into a mortgage agreement in the
principal amount of $536,000.00 to purchase or improve the subject
premises known as 5910 Tyndall Avenue, in Bronx, New York, on
February 13, 2007. In an August 24, 2009 summons and complaint and
a implemental October 23, 2009 summons and complaint, Defendant
Bank New York or its predecessor-in-interest commenced a
foreclosure action. The 2009 Foreclosure Action was voluntarily
discontinued on September 14, 2015. More than 4 years after the
expiration of the statute of limitations, Defendant McCabe filed a
foreclosure action on August 29, 2019, one behalf Defendant Bank of
New York against the Plaintiffs.
McCabe commenced the 2019 Foreclosure Action at the behest of and
under the direction of the Bank of New York and/or Shellpoint.
Between March 2019 and August 2019, while having full and complete
knowledge that any mortgage on the Subject Premises is
uncollectible due to the stature of limitation having expired,
Shellpoint directed their agent Bank of New York to commence the
2019 Foreclosure Action. The successful outcome in 2019 Foreclosure
Action would benefit McCabe directly, as McCabe would earn a
significant amount of legal fees for legal work rendered in
conjunction with a time-barred foreclosure action, the Plaintiffs
contend. The Defendants failed to notify them that the debt McCabe
was seeking to collect was time-barred, the Plaintiffs assert.
The Plaintiffs timely filed an answer with counterclaims seeing an
order to cancelling and discharging the mortgage as time-barred on
October 21, 2019. Despite the Plaintiffs' answer in the foreclosure
action, the Defendants have continued their litigation of the 2019
Foreclosure Action, says the complaint.
The Plaintiffs are natural persons who reside in Bronx County, New
York.
McCabe is a law firm with its primary business located in New
Rochelle, New York.[BN]
The Plaintiffs are represented by:
Andreas E. Christou, Esq.
Alexander Kadochnikov, Esq.
SHIRYAK, BOWMAN, ANDERSON, GILL & KADOCHNIKOV LLP
80-02 Kew Gardens Road, Suite 600
Kew Gardens, NY 11415
Phone: 718-332-9600
MDL 14-2551: Court Dismisses Todd Harvey's Claims in NHL Suit
-------------------------------------------------------------
The United States District Court for the District of Minnesota
issued an Opinion and Order granting Defendant National Hockey
League's (NHL) Motion to Dismiss in the case captioned IN RE:
NATIONAL HOCKEY LEAGUE PLAYERS' CONCUSSION INJURY LITIGATION,
relates to: Adams v. NHL, et al., Case No. 15-cv-00472 (SRN/JSM),
MDL No. 14-2551 (SRN/BRT), (D.Minn.).
The case arises from repetitive head trauma-including concussive
and sub-concussive head injuries-sustained by former NHL players
during their professional careers. Plaintiffs allege that the
National Hockey League (NHL) knew or should have known that by
promoting fighting in the sport, players would suffer brain trauma
with debilitating long-term effects. Based on these allegations,
Plaintiffs assert six counts against the NHL. These counts mimic
all six counts in the MDL complaint.
Defendant National Hockey League moved to dismiss Plaintiff Todd
Harvey's claims in the Complaint for lack of personal
jurisdiction.
When considering specific jurisdiction, the Court examines the
nature, quality, and quantity of NHL's contacts with Minnesota, and
those contacts' relation to Plaintiffs' suit.
First, the Court finds that the NHL's alleged contacts with
Minnesota in the Complaint are limited to: (1) NHL players, other
than Harvey, who were residents of Minnesota and suffered from
repetitive head trauma as a result of the NHL's acts and/or
omissions and (2) NHL players, other than Harvey, who played for a
Minnesota team in the NHL and suffered head trauma as a result of
the NHL's acts and/or omissions.
Fatal to Harvey and his claims are that the contacts pleaded in the
Complaint do not specifically relate to his causes of action. These
attenuated contacts are clearly not connected to his claims, and
when there is no such connection, specific jurisdiction is lacking
regardless of the extent of a defendant's unconnected activities in
the State, the Court holds.
In the present case, Harvey brings six counts against the NHL
alleging a variety of negligence-based and fraud-based causes of
actions, including a claim for medical monitoring procedure costs.
The basis of these claims, among other things, is the NHL's alleged
(i) failure to warn about the long-term risks of head injuries (ii)
promotion and encouragement of violence in hockey and (iii) failure
to implement appropriate concussion protocols to prevent him from
returning to play after sustaining a head injury. However, "this
purported misconduct was not alleged to have occurred in
Minnesota," the Court points out.
No party here is a Minnesota citizen, and there is no evidence in
the record that any witnesses reside here, or relevant documents
are in this forum, the Court further finds.
Accordingly, the Court grants Defendant's motion to dismiss for
lack of personal jurisdiction.
A full-text copy of the District of Court's October 10, 2019
Opinion and Order is available at https://tinyurl.com/y28e9oue from
Leagle.com
Plaintiffs' Interim Co-Lead Class Counsel, Plaintiff, represented
by Bradley C. Buhrow , Zimmerman Reed PLLP, 1100 IDS Center, 80 S
8th St., Minneapolis, MN 55402, pro hac vice, Brian C. Gudmundson ,
Zimmerman Reed, PLLP, Charles S. Zimmerman
-Charles.Zimmerman@zimmreed.com - Zimmerman Reed, LLP, David M.
Cialkowski , Zimmerman Reed, PLLP, 1100 IDS Center, 80 South Eighth
Street Minneapolis, MN 55402, Hart L. Robinovitch .
Hart.Robinovitch@zimmreed.com - Zimmerman Reed, PLLP, Janine D.
Arno - jarno@rgrdlaw.com -, Robbin Geller Rudman & Dowd LLP,
Kathleen L. Douglas - kdouglas@rgrdlaw.com - Robbins Geller Rudman
& Dowd LLP, Leonard B. Simon - lens@rgrdlaw.com - Robbins Geller
Rudman & Dowd LLP, Mark J. Dearman - mdearman@rgrdlaw.com -
Robbins Geller Rudman & Dowd, LLP, Stephen G. Grygiel -
sgrygiel@silvermanthompson.com - SILVERMAN, THOMPSON, SLUTKIN &
WHITE
National Hockey League, Defendant, represented by Aaron D. Van Oort
- aaron.vanoort@FaegreBD.com - Faegre Baker Daniels LLP, Adam M.
Lupion – alupion@proskauer.com -PROSKAUER ROSE, LLP,
-daniel.connolly@FaegreBD.com, Faegre Baker Daniels LLP, Geoffrey
M. Wyatt -geoffrey.wyatt@skadden.com - Skadden, Arps, Slate,
Meagher & Flom, LLP, Jessica D. Miller -jessica.miller@skadden.com
- Skadden, Arps, Meagher & Flom LLP, -john.beisner@skadden.com,
SKADDEN ARPS SLATE MEAGHER & FLOM LLP, Joseph Baumgarten –
jbaumgarten@proskauer.com -PROSKAUER ROSE, LLP, Joseph M. Price -
joseph.price@FaegreBD.com - Faegre Baker Daniels LLP, Linda S.
Svitak - linda.svitak@FaegreBD.com - Faegre Baker Daniels LLP,
Matthew Michael Martino - matthew.martino@skadden.com - Skadden,
Arps, Slate, Meagher & Flom LLP
MDL 2841: Court Narrows Claims in Monat Hair Care Products Suit
---------------------------------------------------------------
Judge Darrin P. Gayles, of the U.S. District Court of the Southern
District of Florida, Miami Division, granted in part and denied in
part the Defendants' Motion to Dismiss Plaintiffs' First Amended
Master Consolidated Class Action Complaint in IN RE: MONAT HAIR
CARE PRODUCTS MARKETING, SALES PRACTICES, AND PRODUCTS LIABILITY
LITIGATION. THIS DOCUMENT RELATES TO ALL CASES, MDL No. 2841,
Master File No. 18-MD-02841-GAYLES (S.D. Fla.).
The action is about hair care products that did not perform as
promised. Rather than promoting healthy hair growth, the
Plaintiffs contend that the products at issue cause hair loss and
scalp irritation.
Defendants Monat Global Corp., Alcora Corp., and B&R Products
comprise a family-controlled beauty conglomerate that designs,
manufactures, markets, and distributes the eight hair-treatment
systems at issue in the action. Alcora--the umbrella organization
for Monat and B&R--is owned, controlled, and operated by the
Urdaneta family. Monat, a multinational company that markets and
sells the Products, is a wholly owned subsidiary of Alcora. B&R is
also a subsidiary of Alcora and is the sole manufacturer of the
Products. The Urdaneta family controls the operations of each of
the Defendants.
The Products contain the same four key ingredients: Proctine(TM),
Rejuvenique(TM), Cipixy(TM), and Crodasorb(TM). The Key
Ingredients are a proprietary mix of several ingredients not listed
on the Products' labels. The Defendants sell the Products via
Monat's website or through sales agents called Market Partners.
They require their Market Partners to use approved marketing
material when selling the Products.
In their marketing material, the Defendants represent that the
Products are clinically tested and proven to promote hair growth,
prevent aging, and reduce hair loss. In addition, their marketing
material states that the Products are approved by the Food and Drug
Administration ("FDA") and do not contain any "toxic" ingredients.
Despite Defendants' representations to the contrary, the Products
contain several harsh chemicals, including Cocomidopropyl Betaine,
Benzyl Alcohol, Red Clover Leaf Extract, Butylene Glycol, ethanol,
and sulfates. Their marketing material includes "before" and
"after" photos depicting "customers" with unruly hair before use of
the Products and long shiny hair after use. But these photos are
stock images purchased by the Defendants--not real customers.
By 2016, the Better Business Bureau ("BBB") had received over 825
complaints by customers about the Defendants, over 630 of which
related to the Products. In the complaints, customers stated that
the Products caused their hair to fall out and caused sores and
lesions on their scalps. In addition, between Aug. 29, 2017, and
March 27, 2019, the FDA received 237 adverse incident reports from
customers related to the Products. Like the BBB complaints, the
FDA adverse incident reports indicate that the Products caused the
customers' hair loss, head sores, and severe skin reactions. Id.
When customers complained directly to the Defendants about the
Products, the Defendants told them that the various adverse
reactions were part of an intended "detox process." They
encouraged the upset customers to continue using the Products for
at least 90 days, while the scalp "detoxed." Monat's President
later acknowledged that the purported detoxification process was
not scientifically supported.
In March of 2018, the FDA inspected the Defendants' manufacturing
facilities. Following the inspection, the FDA issued a repor
noting, in part, that the Products "may have become contaminated
with filth" during manufacture. In addition, the FDA Report stated
that th eDefendants failed "to sample and test raw materials for
conformance with specifications to ensure the absence of filth,
microorganisms, and or other adulterants prior to processing or
usage."
The Plaintiffs are 18 former users of the Products who claim that
the Products did not perform as promised and caused them to suffer
hair loss, scalp irritation, and severe skin reactions. The
Plaintiffs allege that (1) inclusion of the Key Ingredients and
lack of biocides in the Products constitutes a design defect, (2)
contamination of the Products in Defendants' facilities resulted in
a manufacturing defect, and (3) the Products are more dangerous
than a reasonable consumer would expect based on their packaging
and advertising. Plaintiffs also contend that Defendants
misrepresented the efficacy of the Products.
The Plaintiffs seek to represent a nationwide class of all
consumers who have suffered economic damages and bodily injury
resulting from their use of the Products.
On Dec. 20, 2018, the Plaintiffs filed their First Amended
Consolidated Master Class Action Complaint asserting claims for (1)
violation of Florida's Deceptive and Unfair Trade Practices Act
("FDUTPA"), (2) violation of the Magnuson-Moss Warranty Act, (3)
breach of implied warranty of merchantability, (4) violation of
express warranty, (5) negligence, (6) negligence-failure to warn,
(7) strict liability-design defect, (8) strict liability-failure to
warn, (9) strict liability-manufacturing defect, (10) unjust
enrichment, and, in the alternative, (11-26) violations of various
state consumer protection laws.5
The Defendants have moved to dismiss arguing the Plaintiffs (1)
fail to allege a product defect or causation, (2) have no standing
to bring a claim for injunctive relief under FDUTPA, (3) cannot
allege a claim for unjust enrichment, (4) fail to allege claims
against B&R, and (5) are time-barred from bringing many of their
state consumer protection claims.
Judge Gayles granted in part and denied in part the Defendants'
Motion to Dismiss. He dismissed the Plaintiffs' requests for
injunctive relief in their FDUTPA and alternate state consumer
protection claims. The remainder of the Plaintiffs' claims may
proceed as pled.
In their FDUTPA and alternate state consumer protection claims, the
Plaintiffs ask the Court to enjoin the Defendants' unlawful
practices. The Defendants argue that the Plaintiffs have no
constitutional standing to seek injunctive relief.
Judge Gayles agrees. The Plaintiffs clearly alleged in the
Complaint that they would not have purchased the Products had they
known of the harm. Therefore, they do not intend to purchase the
Products in the future. Because the Plaintiffs fail to allege the
threat of future harm, they have no constitutional standing to seek
injunctive relief under FDUTPA or the alternate state consumer
protection claims.
The Defendants will answer the First Amended Master Consolidated
Class Action Complaint within 20 days of the date of the Order.
A full-text copy of the Court's Oct. 23, 2019 Order is available at
https://is.gd/3PNnnx from Leagle.com.
Monat Hair Care Products Marketing, Sales Practices and Products
Liability Litigation, In Re, represented by Julie Braman Kane,
Colson Hicks Eidson, Latoya Crystal Brown, Colson Hicks Eidson &
William C. Meyers -- william.meyers@goldbergkohn.com -- Goldberg
Kohn Ltd.
Naim Shakir Surgeon, Special Master, pro se.
Sue Hoffpauir & Donna Stefforia, Plaintiffs, represented by Julie
Braman Kane, Colson Hicks Eidson & Latoya Crystal Brown, Colson
Hicks Eidson.
Jessica Row, Plaintiff, represented by Amanda M. Williams --
awilliams@gustafsongluek.com -- Julie Braman Kane, Colson Hicks
Eidson, Yvonne M. Flaherty -- ymflaherty@locklaw.com -- Lockridge
Grindal Nauen & Holstein & Latoya Crystal Brown, Colson Hicks
Eidson.
Dana Sohovich, on behalf of herself and others similary situated,
Consol Plaintiff, represented by Adam David Warden --
awarden@saxenawhite.com -- Saxena White P.A., Dianne Marie Anderson
-- danderson@saxenawhite.com -- Saxena White, P.A., Jessica J.
Sleater -- jessica@andersensleater.com -- Andersen Sleater Sianni
LLC, Joseph E. White, III -- jwhite@saxenawhite.com -- Saxena White
PA, Julie Braman Kane, Colson Hicks Eidson & Latoya Crystal Brown,
Colson Hicks Eidson.
B & R Products, Inc., Defendant, represented by Andrea Cox --
andie.cox@saul.com -- Arnstein & Lehr LLP, Kristen A. Jones --
kristen.jones@goldbergkohn.com -- Goldberg Kohn Ltd. & William C.
Meyers, Goldberg Kohn Ltd.
Monat Global Corp., Consol Defendant, represented by Andrea Cox,
Arnstein & Lehr LLP, Ann E. Zachritz, Andrews Davis PCOKC, David J.
Chizewer, Goldberg Kohn Ltd., pro hac vice, Jeffrey Brian Shapiro,
Saul Ewing Arnstein & Lehr, Joseph L. Hoolihan, Goldberg Kohn Ltd.,
pro hac vice, Kristen A. Jones, Goldberg Kohn Ltd., Laura A. Frase,
Cantey Hanger LLP, Sean M. Gaffney, Procopio Cory Hargreaves &
Savitch, LLP, Steven N. Malitz, Saul Ewing Arnstein & Lehr LLP, pro
hac vice, William C. Meyers, Goldberg Kohn Ltd, Julie Braman Kane,
Colson Hicks Eidson & Latoya Crystal Brown, Colson Hicks Eidson.
Alcora Corporation, also known as Alcora Group, Consol Defendant,
represented by Andrea Cox, Arnstein & Lehr LLP, Jeffrey Brian
Shapiro, Saul Ewing Arnstein & Lehr, Kristen A. Jones, Goldberg
Kohn Ltd., Steven N. Malitz, Saul Ewing Arnstein & Lehr LLP, pro
hac vice, Julie Braman Kane, Colson Hicks Eidson, Latoya Crystal
Brown, Colson Hicks Eidson & William C. Meyers, Goldberg Kohn Ltd.
Does 1-10, inclusive, Consol Defendant, represented by Julie Braman
Kane, Colson Hicks Eidson & Latoya Crystal Brown, Colson Hicks
Eidson.
Toni Miller, Consol Defendant, represented by Janet Robards Varnell
-- JVarnell@VarnellandWarwick.com -- Varnell and Warwick, P.A. &
Tara Clark Newberry, Clark Newberry Law Firm.
MDL 2915: Wise Suit Over Capital One Data Breach Consolidated
-------------------------------------------------------------
The class action lawsuit styled as NICOLE WISE, HOLLY ALCAZ, and
HAROLD VELEZ, on behalf of themselves and others similarly
situated, Plaintiffs v. CAPITAL ONE FINANCIAL CORPORATION, a
Delaware corporation, CAPITAL ONE, N.A., a foreign corporation, and
CAPITAL ONE BANK (USA), N.A., a Virginia corporation, Defendants,
Case No. 8:19-cv-01915 (Filed Aug. 5, 2019), was transferred from
the U.S. District Court for the Middle District of Florida, to the
U.S. District Court for the Eastern District of Virginia
(Alexandria) on Oct 18, 2019.
The Eastern District of Virginia Court Clerk assigned Case No.
1:19-cv-02945-AJT-JFA to the proceeding. The case is assigned to
the Hon. District Judge Anthony J. Trenga.
The Wise case is being consolidated with the multidistrict
litigation titled In re: CAPITAL ONE CUSTOMER DATA SECURITY BREACH
LITIGATION, MDL 2915. The MDL was created by Order of the United
States Judicial Panel on Multidistrict Litigation on Oct. 2, 2019.
These actions share factual issues concerning a recently-announced
incident in which an individual gained unauthorized access to the
personal information, maintained on cloud-based systems, of more
than 100 million Capital One credit card customers and individuals
who applied for Capital One credit card products.
All actions arise from the same data security breach, and they all
allege that Capital One failed to put in to place reasonable data
protections. Centralization will eliminate duplicative discovery,
prevent inconsistent pretrial rulings on class certification and
other issues, and conserve the resources of the parties, their
counsel, and the judiciary.
In its Oct. 2, 2019 Order, the MDL Panel select the Eastern
District of Virginia as the transferee district for the litigation.
Common defendant Capital One is headquartered within this district
in McLean, Virginia, and represents that relevant documents and
witnesses will be found there. Moreover, the AWS defendants
maintain that relevant witnesses and evidence are located in an AWS
facility located in Northern Virginia. Judge Anthony J. Trenga is
an able jurist with MDL experience, and we are confident he will
steer these proceedings on a prudent course. The Panel find that
centralization under Section 1407 of all actions in the Eastern
District of Virginia will serve the convenience of the parties and
witnesses and promote the just and efficient conduct of this
litigation. Presiding Judge in the MDL is Hon. Anthony J. Trenga.
The lead case is Case No. 1:19-md-02915-AJT-JFA.[BN]
The Plaintiffs are represented by:
J. Andrew Meyer, Esq.
FINN LAW GROUP, P.A.
7431 114th Ave., Suite 104
Largo, FL 33773
Telephone: (727) 214-0700
Facsimile: (727) 475-1494
E-mail: ameyer@finnlawgroup.com
- and -
Michael A. Ziegler, Esq.
Kaelyn Steinkraus, Esq.
LAW OFFICE OF MICHAEL A. ZIEGLER, P.L.
2561 Nursery Road, Suite A
Clearwater, FL 33764
Telephone: (727) 538-4188
Facsimile: (727) 362-4778
E-mail: mike@zieglerlawoffice.com
kaelyn@zieglerlawoffice.com
MICHAEL A. DEMAYO: Hatch, et al Seek to Certify Class
-----------------------------------------------------
In the class action lawsuit styled as JOHNATHAN HATCH, MARK
DVORSKY, and KELLY EPPERSON, on behalf of themselves and others
similarly situated, the Plaintiffs, v. MICHAEL A. DEMAYO,
individually, THE LAW OFFICES OF MICHAEL A. DEMAYO, P.C., LAW
OFFICES OF MICHAEL A. DEMAYO, L.L.P., JASON E. TAYLOR,
individually, LAW OFFICES OF JASON E. TAYLOR, P.C., BENJAMIN T.
COCHRAN, individually, HARDISON & COCHRAN, PLLC, CARL B. NAGLE,
individually, NAGLE & ASSOCIATES, P.A., JOHN J. GELSHENEN,
individually, DAVIS & GELSHENEN LLP, MARK I. FARBMAN, individually,
MARK FARBMAN, P.A., TED A. GREVE, individually, TED A. GREVE &
ASSOCIATES, P.A., CHRISTOPHER T. MAY, individually and ESTWANIK AND
MAY, P.L.L.C., the Defendants, Case No. 1:16 –cv-00925-LCB-LPA
(M.D.N.C.), the Plaintiffs ask the Court for an order certifying a
class comprised of the Plaintiffs and all other persons similarly
situated.[CC]
Attorneys for the Plaintiffs are:
John F. Bloss, Esq.
Frederick L. Berry, Esq.
301 North Elm Street, Ste. 800
Greensboro, NC 27401
Telephone: 336-273-1600
Facsimile: 336-274-4650
E-mail: jbloss@greensborolaw.com
fberry@greensborolaw.com
- and -
James R. Faucher, Esq.
BROWN, FAUCHER, PERALDO
& BENSON, PLLC
822 N. Elm Street Suite 200
Greensboro, NC 27401
Telephone (336) 478-6000
E-mail: james@greensborolawcenter.com
jfaucher@bbflaw.com
Attorneys for the Defendants are:
Reid C. Adams, Jr., Esq.
Jonathan R. Reich, Esq.
WOMBLE BOND DICKINSON
Irvine, CA
Telephone: 714 557-3800
E-mail: cal.adams@wbd-us.com
jonathan.reich@wbd-us.com
- and -
Bradley M. Risinger, Esq.
Matthew Nis Leerberg, Esq.
Troy D. Shelton, ESQ.
FOX ROTHSCHILD LLP
one Biscayne Tower
2 South Biscayne Blvd., Suite 2750
Miami FL 33131
Telephone: 305 442 6540
Facsimile: 305 442 6541
E-mail: brisinger@foxrothschild.com
mleerberg@foxrothschild.com
tshelton@foxrothschild.com
NATIONAL PRESCRIPTION: Williamsburg City to Join Opioid Lawsuit
---------------------------------------------------------------
Jarrod Mills, writing for The Daily Independent, reports that the
City Council of Williamsburg went into an executive session during
its regular meeting on Oct. 14 to discuss whether or not to involve
itself with a national class action suit against pharmaceutical
companies.
"We got word of a national class action suit against the companies
and distributors of opioids, the makers, and distributors of
opioids," said Williamsburg Mayor Roddy Harrison.
The class action suit, the National Prescription Opiate Litigation,
is a consolidated suit of over 2,000 individual pending lawsuits
against some of the biggest pharmaceutical companies in America.
Judge Dan Polster will oversee the trial in the Northern District
of Ohio if it goes to trial, as most multi-district litigations
don't get that far. The majority of cases like this reach a
settlement before they ever go to trial.
"Our attorney felt like we should go into executive session to
answer questions," said Harrison.
Board members wanted to be sure they had as accurate of information
as possible before voting on the issue.
"You had the opportunity to opt out of that class action suit if
you wanted to," Harrison said.
This is due to Polster creating a "negotiation class" for the
federal trial. This allows lawyers to act on behalf of 49 local
governments during the trial in accepting settlement deals, and
etc. If a city or county in the U.S. does not want to be
represented by those lawyers, they can opt out of the arrangement.
After the executive decision and cleaning things up with the city's
attorney, Williamsburg's City Council voted unanimously to take
part in the class action suit.
Trials for Polster's own district were scheduled to start Oct. 21.
They are the only cases with a trial date so far. [GN]
NCAA: Cole Sues Over Disregard for Health of Student-Athletes
-------------------------------------------------------------
Wesley Cole, individually and on behalf of all others similarly
situated v. NATIONAL COLLEGIATE ATHLETIC ASSOCIATION, Case No.
1:19-cv-04463-TWP-TAB (S.D. Ind., Nov. 6, 2019), seeks to obtain
redress for injuries sustained a result of the Defendant's reckless
disregard for the health and safety of generations of Greensboro
College student-athletes.
Despite knowing for decades of a vast body of scientific research
describing the danger of traumatic brain injuries ("TBIs") like
those the Plaintiff experienced, the Defendant failed to implement
adequate procedures to protect the Plaintiff and other Greensboro
football players from the long-term dangers associated with them,
the Plaintiff alleges. As a direct result of the Defendant's acts
and omissions, the Plaintiff and countless former Greensboro
football players suffered brain and other neurocognitive injuries
from playing NCAA football. As such, the Plaintiff brings this
Class Action Complaint in order to vindicate those players' rights
and hold the NCAA accountable, says the complaint.
Wesley Cole is a natural person and citizen of the State of North
Carolina.
The NCAA is the governing body of collegiate athletics that
oversees twenty-three college sports and over 400,000 students who
participate in intercollegiate athletics, including the football
program at Greensboro.[BN]
The Plaintiff is represented by:
Jeff Raizner, Esq.
RAIZNER SLANIA LLP
2402 Dunlavy Street
Houston, TX 77006
Phone: 713.554.9099
Fax: 713.554.9098
Email: efile@raiznerlaw.com
- and -
Jay Edelson, Esq.
Benjamin H. Richman, Esq.
EDELSON PC
350 North LaSalle Street, 14th Floor
Chicago, IL 60654
Phone: 312.589.6370
Fax: 312.589.6378
Email: jedelson@edelson.com
brichman@edelson.com
- and -
Rafey S. Balabanian, Esq.
EDELSON PC
123 Townsend Street, Suite 100
San Francisco, CA 94107
Phone: 415.212.9300
Fax: 415.373.9435
Email: rbalabanian@edelson.com
NORTHSTAR MEMORIAL: $2.2M Deal in Uschold Suit Gets Prelim. OK
--------------------------------------------------------------
In the case captioned WILLIAM USCHOLD, et al., Plaintiffs, v. NSMG
SHARED SERVICES, LLC, Defendant, Case No. 18-cv-01039-JSC (N.D.
Cal.), Magistrate Judge Jacqueline Scott Corley of the U.S.
District Court for the Northern District of California granted the
Plaintiffs' amended, unopposed motion for preliminary approval of
the parties' class action settlement agreement.
Uschold and Tyrone Dangerfield filed the state law wage-and-hour
action on behalf of themselves and others similarly situated
against their employer, NSMG. The Plaintiffs allege that NSMG
violated California state law in its operation of a commission
payment system and failed to reimburse them for reasonable business
expenses incurred while using personal property for work purposes.
NSMG is a limited liability corporation organized under Delaware
law; the company maintains its principal place of business in
Houston, Texas. NSMG employs individuals who provide funeral and
burial related services throughout the Bay Area. The Plaintiffs
are former Bay Area employees of NSMG who worked for the company in
2017.
The parties participated in private mediation on Oct. 24, 2018 and
Feb. 5, 2019 but were unable to reach a settlement agreement. They
continued to negotiate and on March 8, 2019, the Plaintiffs filed a
Notice of Settlement.
Under the Settlement Agreement, the proposed class consists of all
employees paid commissions by the Defendant at any time from Jan.
17, 2014 through the date of Preliminary Approval of Settlement.
The parties conditionally stipulate and agree that the requisites
for establishing class certification have been met for purposes of
effectuating the Settlement Agreement.
The Defendant agrees to pay $2.2 million to the Settlement
Administrator, who will deposit that amount in a qualified
settlement fund. The following will be deducted from the Gross
Settlement Amount:
(1) payment of $33,000 to the Labor Workforce Development
Agency to settle the PAGA claim asserted in the FAC;
(2) the Settlement Administrator's fees and costs, not
exceeding $9,000;
(3) the Plaintiffs' attorneys' fees (not exceeding $736,200
(representing one-third of the Gross Settlement Amount))
and costs (not exceeding $20,000); (4) the Defendant's
estimated share of applicable payroll taxes to be paid
on the individual settlement payments; and
(5) "Service Awards" of $2,000 to each of the four named
Plaintiffs in the FAC.
The remainder following those deductions (approximately $1,417,400)
constitutes the "Net Settlement Amount" from which individual class
members will be paid.
The individual Class Settlement Payments for class members that do
not opt out will be calculated as follows:
(a) Each Class Member's Total Individual Workweeks will be
determined on a pro-rata basis as determined by the
number of workweeks each Class Member worked in the
state of California from Jan. 17, 2014 through the
date of preliminary approval of the settlement.
(b) The Total Individual Workweeks for each Class Member
will be aggregated to determine the Total Class Gross
Workweeks.
(c) The estimated Individual Settlement Payment for each
Class Member set forth in the Class Notice will be
based on: (i) each Class Member's Total Individual
Workweeks; (ii) divided by the aggregate number of
Total Class Gross Workweeks of all Class Members;
(iii) multiplied by the value of the Net Settlement
Amount.
Each class member will receive a pro-rata share of the Net
Settlement Amount based on the number of weeks the individual
worked compared to the number of weeks worked by all class members.
A class member has 60 days to dispute the information on the
Notice, including his or her Total Individual Compensation. The
Settlement Administrator will mail Class Settlement Payments by
check to individual class members within 10 days of the "Effective
Date."
No later than 30 days after the 180-day period has passed, the
Plaintiffs' counsel will report to the Court the total amount paid
to the class members and any amount remaining in the qualified
settlement fund. The remaining amount will be distributed cy pres
as follows: 50% to the charitable organization Foundation for
Advocacy Inclusion and Resources; 25% to the California State
Treasury for deposit in the Trial Court Improvement and
Modernization Fund; and 25% to the State Treasury for deposit into
the Equal Access Fund of the Judicial Branch. No settlement funds
will revert to the Defendant.
The parties' motion for final approval should provide more
information about these potential cy pres recipients and their
relationship to the issues in the lawsuit, as well as any
relationship to counsel. It should also explain why any uncashed
amounts should not be provided to the State of California as
unclaimed property rather than distributed to the cy pres
recipients or whether the parties have agreed that the amounts of
uncashed checks can be provided to the State of California as
unclaimed property.
Within 20 days of preliminary approval, the Defendant will provide
the Settlement Administrator an electronic file(s) containing the
following information for each Class Member: (1) full name; (2)
last-known address; (3) social security number (if known); and (4)
the gross individual workweeks from Jan. 17, 2014 through the date
of preliminary approval for work done as a commissioned sales
employee in the state of California. No later than 40 days after
preliminary approval, the Settlement Administrator must mail the
notice of settlement to the class members by United States first
class mail, postage prepaid.
Judge Corley holds that the consideration of the fairness factors
warrants preliminary approval of the parties' Settlement Agreement.
The proposed settlement appears fair, adequate, reasonable, and in
the best interests of the class members given the uncertainty of
continued litigation.
Accordingly, Judge Corley granted the Plaintiffs' motion for
preliminary approval of the class action settlement. Na'il
Benjamin and Allyssa Villanueva of Benjamin Law Group, P.C. are
appointed as the Class Counsel for the Settlement Class. The
Notice will be provided in accordance with the notice plan and the
Order.
On Nov. 4, 2019, the Class Counsel will file a motion seeking
approval of attorneys' fees and costs. The parties will appear
before the Court for a final approval hearing on Feb. 20, 2020 at
9:00 a.m. in Courtroom F, 450 Golden Gate Ave., San Francisco,
California.
The Class Counsel will file a noticed motion for final approval of
settlement no later than 35 days before the final approval hearing.
The motion will include a copy of the Notice ultimately sent to
the class along with the other information, as available, suggested
by the Northern District of California Procedural Guidance for
Class Action Settlements.
A full-text copy of the District Court's Oct. 8, 2019 Order is
available at https://is.gd/HqZoyH from Leagle.com.
William Uschold, individually and on behalf of others similarly
situated & Tyrone Dangerfield, individually and on behalf of others
similarly situated, Plaintiffs, represented by Na'il Benjamin --
nbenjamin@benjaminlawgroup.com -- Benjamin Law Group, P.C. &
Allyssa Briana Villanueva -- allyssa@benjaminlawgroup.com --
Banjamin Law Group, P.C.
Northstar Memorial Group, an Unicorporated Association & NSMG
Shared Services, LLC, a foreign California forfeited entity,
Defendants, represented by JoAnna L. Brooks -- jbrooks@littler.com
-- Littler Mendelson, P.C. & Michael William Nelson --
mwnelson@littler.com -- Littler Mendelson, PC.
NV NUTRITION: Falsely Markets Nutriar Vaping Pens, Hauer Alleges
----------------------------------------------------------------
Connor Hauer, individually and on behalf of all others similarly
situated v. NV NUTRITION, LLC, and DOES 1 through 1, inclusive,
Case No. 2:19-cv-09520 (C.D. Cal., Nov. 5, 2019), seeks to secure
injunctive relief for a proposed class arising from the Defendants'
false and misleading advertising of their Nutriar vaping pens.
According to the complaint, the Nutriar vaping pens are labeled and
advertised as "safe" and "nutritional," when in fact, they put
consumers at risk of lung disease and a plethora of other horrific
illnesses. The Product is unsafe and causes harmful side effect,
many of which are worse than those cause by smoking cigarettes.
The Plaintiff alleges that the Company misleads reasonable
consumers to believe its Product is safe, and fails to disclose
material information to consumers, putting consumers at risk of
serious medical harm. The Plaintiff contends that the Company
misleads reasonable consumers to believe that its Products provide
a positive nutritional and health benefit without any negative
effects.
The Company deceptively advertises its products as "safe" and
"nutritional" despite the fact that: (a) propylene glycol and
vegetable glycerin (PG/VG) inhibit cell function and can cause
airway obstruction, (b) vaping has been proven by the scientific
community to be extremely harmful and similar to the negative
effects of cigarettes, and (c) "Natural and Artificial Flavorings"
in the Products can have toxic components, which the Defendants
fail to disclose to consumers, says the complaint.
Connor Hauer purchased the Nutriar Immune Product in California
within the last four years of the filing of this Complaint.
NV Nutrition is one of the owners, manufacturers and distributors
of the Products.[BN]
The Plaintiff is represented by:
Ryan J. Clarkson, Esq.
Matthew T. Theriault, Esq.
Bahar Sodaify, Esq.
CLARKSON LAW FIRM, P.C.
9255 Sunset Blvd., Suite 804
Los Angeles, CA 90069
Phone: (213) 788-4050
Fax: (213) 788-4070
Email: rclarkson@clarksonlawfirm.com
sclarkson@clarksonlawfirm.com
bsodaify@clarksonlawfirm.com
OVERSTOCK.COM INC: Crutchfield Sues over Drop in Share Price
------------------------------------------------------------
MICHAEL CHAMBERS, individually and on behalf of all others
similarly situated, Plaintiff v. OVERSTOCK.COM, INC., PATRICK M.
BYRNE and GREGORY J. IVERSON, Defendant, Case No. 2:19-cv-00741-TC
(D. Utah., Oct. 8, 2019), is a federal securities class action on
behalf of all investors who purchased or otherwise acquired
Overstock.com. Inc. common stock between May 9, 2019 and September
23, 2019, inclusive, alleges violations of the Securities Exchange
Act of 1934.
The Plaintiff alleges in the complaint that the Defendants conceal
the true operational and financial condition of Overstock, and
materially misrepresented and failed to disclose the conditions
that were adversely affecting the Company throughout the Class
Period, because it (i) enabled them to deceive the investing public
regarding Overstock's business, operations, management and the
intrinsic value of Overstock common stock; (ii) enabled defendants
to artificially inflate the price of Overstock common stock; (iii)
enabled defendant Byrne to sell over $90 million of his privately
held Overstock shares while in possession of material adverse
non-public information about the Company; and (iv) caused Plaintiff
and other members of the Class to purchase Overstock common stock
at artificially inflated prices.
Between September 3, 2019 and September 13, 2019, Overstock's share
price inexplicably skyrocketed $9.86 or 65%, closing at $24.93 on
September 13th. This sudden rise in the Company's share price at
first confounded analysts and investors, who could not detect any
material changes in either the overall retail or blockchain markets
or Overstock's business prospects. With regards to the digital
dividend, analysts believed that the structure of the dividend
caused more confusion than excitement about the Company's value.
The truth would come to light on September 16, 2019, when Bloomberg
published an article entitled "How Patrick Byrne's Final Act at
Overstock Crushed Short Sellers." This article surprised investors
by disclosing that the digital dividend offering was really an
engineered and well-planned short squeeze primarily designed to
hurt short sellers.
Upon publication of the Bloomberg article, the Company's shares
declined precipitously, falling from a close of just below $24.93
per share on September 13th (the last day of trading before the
articles publication) to a close of $19.75 on September 16th – a
drop of $5.18 or 20%.
Shares continued to trade lower the following day, September 17,
2019, after the NY Post reported that Byrne's short squeeze was
waning, as the brokerage firms JPMorgan and Morgan Stanley agreed
to take cash of an equivalent value to the digital dividend to
cover short positions. According to the Post, Overstock shares
"buckled as word of the brokerage concession began to spread early
Friday because it meant short sellers could maintain their short
positions."
The publication of the NY Post article resulted in the Company's
shares declining an additional $2.15 or 12% to close at $17.60 on
the same days as the article's publication.
Overstock is a Delaware corporation with its principal place of
business located in Midvale, Utah. Overstock.com, Inc. offers
discounted brand-name merchandise for sale over the internet.
Products include bed-and-bath goods, kitchenware, jewelry, sporting
goods, electronics, and designer accessories. [BN]
The Plaintiff is represented by:
Jon V. Harper, Esq.
Harper Law PLC
P.O. Box 581468
Salt Lake City, UT 84158
Telephone: (801) 910-4357
E-mail: jharper@jonharperlaw.com
- and -
Jeffrey C. Block, Esq.
Jacob A. Walker, Esq.
Mark A. Delaney, Esq.
BLOCK & LEVITON LLP
260 Franklin Street, Suite 1860
Boston, MA 02110
Telephone: (617)398-5600
Facsimile: (617)507-6020
E-mail: jeff@blockesq.com
jake@blockesq.com
mdelaney@blockesq.com
PALM BEACH COUNTY: $390K in Attorneys Fees Awarded in Bradshaw Suit
-------------------------------------------------------------------
Magistrate Judge William Matthewman of the U.S. District Court for
the Southern District of Florida granted in part and denied in part
Plaintiffs' Verified Motion for Attorneys' Fees in the case
captioned H.C., et al., Plaintiffs, v. RIC BRADSHAW, et al.,
Defendants, Civil No. 18-cv-80810 (S.D. Fla.).
Plaintiffs are H.C., a minor, by and through his parent and natural
guardian; Jenny C., M.F., a minor, by and through his parent and
natural guardian; Asisa Rolle and T.M., by and through his parent
and natural guardian, Jessica Joiner.
Defendant are Rick Bradshaw, Palm Beach County Sheriff; and
Defendant School Board of Palm Beach County.
The class action was filed in June 2018. By November 2018, the
parties were able to negotiate a class action settlement agreement.
On March 5, 2019, the Court entered a Final Order Approving
Class-Action Settlement Agreement, Appointment of Class Counsel and
Certification of Class.
Plaintiffs sought $606,526.00 in attorneys' fees, along with
$39,296.78 in costs, for a total amount sought of $645,822.78. The
Sheriff's Response, which was joined and adopted by the School
Board, asserts that Plaintiffs should be awarded $260,690.50 in
attorneys' fees and $131.33 in costs, for a total amount of
$260,821.83. Then, in Plaintiffs' Reply, Plaintiffs increased the
award sought to $631,736.25 in attorneys' fees and $30,644.39 in
costs, for a total of $662,380.64. The District Court disagrees
with both parties' positions. Plaintiffs seek too much, and the
Sheriff suggests too little.
After very carefully considering the parties' papers, the
applicable law, the Court's own experience, and the entire docket
in the case, the District Court finds that Plaintiffs are entitled
to attorneys' fees in the amount of $390,959.00 and costs in the
amount of $29,724.53, for a total award of $420,683.53.
Accordingly, the District Court orders that:
1. Plaintiffs' Verified Motion for Attorneys' Fees and Costs
is granted in part and denied in part.
2. Plaintiffs, H.C., a minor, but and through his parent and
natural guardian, Jenny C.; M.F., a minor, by and through
his parent and natural guardian, Asisa Rolle; and T.M.,
by and through his parent and natural guardian, Jessica
Joiner will be awarded their attorneys' fees in the
amount of $390,959.00 and costs in the amount of
$29,724.53, for a total award of $420,683.53, against
Defendant Rick Bradshaw, Palm Beach County Sheriff and
Defendant School Board of Palm Beach County.
The parties were ordered to file a Joint Notice, stating their
positions on apportionment of the attorneys' fees and costs between
the two Defendants.
A full-text copy of the District of Court's October 10, 2019
Opinion is available at https://tinyurl.com/y25gao39 from
Leagle.com
H. C., a minor, by and through his parent and natural guardian,
Jenny C., M. F., a minor, by and through his parent and natural
guardian, Asisa Rolle, T. M., a minor, by and though his parent and
natural guardian, Jessica Joiner & All Others Similarly Situated,
Plaintiffs, represented by Diana Leigh Martin , Cohen, Milstein,
Sellers & Toll, PLLC, Sabarish P. Neelakanta , SPN Law, LLC, 301
Clematis Street, Suite 3000 West Palm Beach, FL 33401, Theodore Jon
Leopold - tleopold@cohenmilstein.com - Cohen Milstein Sellers &
Toll, PLLC, Masimba Maxwell Mutamba – mmutamba@hrdc-law.org -
Human Rights Defense Center & Melissa Marie Duncan –
mduncan@legalaidpbc.com - Legal Aid Society of Palm Beach County.
Palm Beach County School District, Defendant, represented by Lisa
A. Carmona , Office of General Counsel.
Palm Beach County Sheriff's Office, Defendant, represented by
Adriana Mihaela Jisa , Purdy Jolly Giuffreda & Barranco PA &
Richard A. Giuffreda , Purdy Jolly Giuffreda Barranco & Jisa PA,
2455 E Sunrise Blvd Ste 1216, Fort Lauderdale, FL, 33304-3115
School Board of Palm Beach County, Defendant, represented by Jon
Erik Bell , School District of Palm Beach County, Laura Esterman
Pincus & Lisa A. Carmona , Office of General Counsel.
Palm Beach County Sheriff, Ric Bradshaw, in his individual and
official capacity, Michael Gauger, Chief Deputy of the Palm Beach
County Sheriff's Office, in his individual capacity, Alfonso
Starling, Corrections Operations Major of the Palm Beach County
Sheriff's Office, in his individual capacity & Frank Milo,
Corrections Security Major of the Palm Beach County Sheriff's
Office, in his individual capacity, Defendants, represented by
Richard A. Giuffreda , Purdy Jolly Giuffreda Barranco & Jisa PA.
PATRIOT WELL: Carr, et al. Seek to Certify Two Classes
------------------------------------------------------
In the class action lawsuit styled as REECE CARR, DUSTIN MANN, and
LUPE HERNANDEZ, individually and on behalf of all others similarly
situated, the Plaintiffs, vs. PATRIOT WELL SOLUTIONS, LLC, the
Defendant, Case No. 5:19-cv-00212-FB-RBF (W.D. Tex.), the Plaintiff
asks the Court for an order certifying two Fair Labor Standards Act
classes:
Operator Class:
"all current and former hourly-paid Operators employed by
Patriot at any time during the last three years who received
a non-discretionary bonus that was not factored into their
regular rates of pay"; and
Field Supervisor Class:
"all current and former Field Supervisors employed by Patriot
at any time during the last three (3) years who were paid a
salary without overtime".
According to the lawsuit, Patriot both failed to properly calculate
its employees' regular rate and misclassified its employees as
exempt in an effort to avoid paying the overtime wages required
under federal law. Patriot instead uniformly pays its Operators an
hourly rate that does not include its non-discretionary bonuses
into the employees' regular rate for overtime. Patriot also
maintains a uniform pay practice of paying Field Supervisors a
salary without any overtime compensation. These practices are clear
per se violations of the FLSA, the lawsuit says.
Patriot provides completion services and solutions to the oil and
gas industry.[BN]
Attorneys for the Plaintiffs and putative Collective and Class
are:
Michael A. Josephson, Esq.
Andrew W. Dunlap, 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
- and -
Joseph A. Fitapelli, Esq.
Armando Ortiz, Esq.
FITAPELLI & SCHAFFER, LLP
28 Liberty Street, 30 th Floor
New York, NY 10005
Telephone: (212 300-0375
Facsimile: (212)481-1333
- 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
PAYPAL HOLDINGS: Dismissal of Sgarlata Class Suit Under Appeal
--------------------------------------------------------------
PayPal Holdings, Inc. said in its Form 10-Q Report filed with the
Securities and Exchange Commission on October 25, 2019, for the
quarterly period ended September 30, 2019, that the plaintiffs in
Sgarlata v. PayPal Holdings, Inc., et al., Case No.
3:17-cv-06956-EMC, have filed a notice of appeal.
The court granted Defendant's motion to dismiss with prejudice on
September 18, 2019; plaintiffs have filed a notice of appeal.
In November 2017, the company announced that it had suspended the
operations of TIO Networks ("TIO") as part of an ongoing
investigation of security vulnerabilities of the TIO platform. On
December 1, 2017, the company announced that it had identified
evidence of unauthorized access to TIO's network, including
locations that stored personal information of some of TIO's
customers and customers of TIO billers and the potential compromise
of personally identifiable information for approximately 1.6
million customers.
The company had received a number of governmental inquiries,
including from state attorneys general, and the company may be
subject to additional governmental inquiries and investigations in
the future.
In addition, on December 6, 2017, a putative class action lawsuit
captioned Sgarlata v. PayPal Holdings, Inc., et al., Case No.
3:17-cv-06956-EMC was filed in the U.S. District Court for the
Northern District of California (the "Court") against the Company,
its Chief Executive Officer, its Chief Financial Officer and Hamed
Shahbazi, the former chief executive officer of TIO (the
"Defendants") alleging violations of federal securities laws.
The initial complaint alleged that Defendants made false or
misleading statements or failed to disclose that TIO's data
security program was inadequate to safeguard the personally
identifiable information of its users, those vulnerabilities
threatened continued operation of TIO's platform, the Company's
revenues derived from TIO services were thus unsustainable, and
consequently, the Company overstated the benefits of the TIO
acquisition, and, as a result, the Company's public statements were
materially false and misleading at all relevant times.
The plaintiff who initiated the lawsuit sought to represent a class
of shareholders who acquired shares of the Company's common stock
between February 14, 2017 through December 1, 2017 and sought
damages and attorneys' fees, among other relief.
On March 16, 2018, the Court appointed two new plaintiffs, not the
original plaintiff who filed the case, as interim co-lead
plaintiffs in the case and appointed two law firms as interim
co-lead counsel. On June 13, 2018, the interim co-lead plaintiffs
filed a first amended complaint, which named TIO Networks ULC, TIO
Networks USA, Inc., and John Kunze (the Company's Vice President,
Global Consumer Products and Xoom) as additional defendants.
The first amended complaint was purportedly brought on behalf of
all persons other than the Defendants who acquired the Company's
securities between November 10, 2017 and December 1, 2017. The
amended complaint alleged that the Company's and TIO's November 10,
2017 announcement of the suspension of TIO's operations was false
and misleading because the announcement only disclosed security
vulnerabilities on TIO's platform, rather than an actual security
breach that Defendants were allegedly aware of at the time of the
announcement.
Defendants' filed their motion to dismiss the first amended
complaint on July 13, 2018 and the Court granted the motion,
without prejudice, on December 13, 2018. Plaintiffs filed a second
amended complaint on January 14, 2019.
The second amended complaint alleges substantially the same theory
of liability as the first amended complaint, but no longer names
Hamed Shabazi as a defendant. The remaining Defendants filed their
motion to dismiss the second amended complaint on March 15, 2019,
and a hearing was held on July 16, 2019.
The court granted Defendant's motion to dismiss with prejudice on
September 18, 2019; plaintiffs have filed a notice of appeal.
PayPal Holdings said, "We may be subject to additional litigation
relating to TIO's data security platform or the suspension of TIO's
operations in the future.
PayPal Holdings, Inc. operates as a technology platform and digital
payments company that enables digital and mobile payments on behalf
of consumers and merchants worldwide. PayPal Holdings, Inc. was
founded in 1998 and is headquartered in San Jose, California.
PEI WEI: Faces Sexual Harassment Class Action in Arkansas
---------------------------------------------------------
Peter Hayes, writing for Bloomberg Law, reports that Pei Wei Asian
Diner LLC was hit with a proposed class action alleging the company
allows sexual harassment of female employees at its Little Rock,
Ark., location.
The general manager and a kitchen manager sexually harassed female
employees, and the company knew about it, according to the
complaint filed by the Equal Employment Opportunity Commission Oct.
15 in the U.S. District Court for the Eastern District of
Arkansas.
Although it was aware of the problem, the company failed to take
measures to protect employees from harassment or maintain an
effective anti-harassment policy, according to the complaint.
COURT: E.D. Ark.
TRACK DOCKET: No. 19-cv-00718
JUDGE: Kristine G. Baker
COMPANY INFO: Pei Wei Asian Diner LLC
[GN]
PINES MAINTENANCE: Madrid Seeks to Recover Unpaid Overtime Wages
----------------------------------------------------------------
Fermin Madrid, Individually and On Behalf of All Others Similarly
Situated v. PINES MAINTENANCE, INC. and JAW INC., Case No.
4:19-cv-04336 (S.D. Tex., Nov. 5, 2019), seeks to recover unpaid
overtime wages from the Defendants under the Fair Labor Standards
Act of 1938.
The Defendant violated the FLSA by employing the Plaintiff and
other nonexempt employees "for a workweek longer than forty hours
but refusing to compensate them for their employment in excess of
forty hours at a rate not less than one and one-half times the
regular rate at which they are or were employed," says the
complaint. The Defendant also violated the FLSA by failing to
maintain accurate time and pay records for the Plaintiff as
required by the FLSA.
The Plaintiff was employed by the Defendant as a maintenance
employee for daily upkeep of the grounds of a golf club.
Pines Maintenance, Inc. maintains the Augusta Pines Golf Club in
Spring, Texas.[BN]
The Plaintiff is represented by:
Melissa Moore, Esq.
Curt Hesse, Esq.
MOORE & ASSOCIATES
Lyric Centre
440 Louisiana Street, Suite 675
Houston, TX 77002
Phone: (713) 222-6775
Facsimile: (713) 222-6739
PIONEER CREDIT: Clayton Sues Over TCPA Violation
------------------------------------------------
Rodney Clayton, individually and on behalf of all others similarly
situated v. PIONEER CREDIT RECOVERY, INC.; DOES 1 through 10,
inclusive, Case No. 4:19-cv-07275 (N.D. Cal., Nov. 5, 2019), seeks
damages and other remedies resulting from the Defendants' illegal
actions in negligently contacting the Plaintiff on his cellular
telephone in violation of the Telephone Consumer Protection Act,
thereby, invading his privacy.
The Defendant called the Plaintiff 47 times between March 5, 2019,
and March 28, 2019, according to the complaint. The Plaintiff
repeatedly asked the Defendant to cease calling him. However, the
Plaintiff's efforts to get the Defendant to cease its automated
barrage of solicitation were to no avail as the Defendant continued
to harass and annoy him with calls.
The Plaintiff contends he is not a customer of the Defendant's
services and has never provided any personal information to the
Defendant for any purpose whatsoever. Accordingly, the Defendant
never received the Plaintiff's "prior express consent" to receive
calls using an automatic telephone dialing system or an artificial
or prerecorded voice on his telephone, says the complaint.
The Plaintiff is a natural person residing in Alameda County,
California.
Pioneer Credit Recovery is a collection agency.[BN]
The Plaintiff is represented by:
Todd M. Friedman, Esq.
Adrian R. Bacon, Esq.
LAW OFFICE OF TODD M. FRIEDMAN, P.C.
21550 Oxnard Street, Suite 780
Woodland Hills, CA 91367
Phone: (323) 306-4234
Fax: (866) 633-0228
Email: tfriedman@toddflaw.com
abacon@toddflaw.com
PIVOTAL SOFTWARE: Being Sold for Too Little to VMware, Shan Says
----------------------------------------------------------------
ZENGHUAN SHAN, on behalf of himself and all others similarly
situated, Plaintiff v. PIVOTAL SOFTWARE, INC., PAUL MARITZ, MICHAEL
S. DELL, EGON DURBAN, WILLIAM D. GREEN, MARCY S. KLEVORN, MADELYN
LANKTON, ROBERT MEE, ZANE ROWE, VMWARE, INC. and RAVEN TRANSACTION
SUB, INC., Defendants, Case No. 3:19-cv-06814 (N.D. Cal., Oct, 21,
2019), alleges that the Defendants violated the Securities and
Exchange Act of 1934 and breached their fiduciary duties to
stockholders as a result of their efforts to sell the Company to
VMware, Inc. and Raven Transaction Sub, Inc.
Mr. Shan alleges that as a result of an unfair process the Company
will be sold for an unfair price. He seeks to enjoin an upcoming
stockholder vote on the proposed all-cash transaction whereby
Pivotal Software stockholders will receive $15 for each share of
the Company they own.
The terms of the Proposed Transaction were memorialized in an
August 22, 2019 filing with the Securities and Exchange Commission
on Form 8-K attaching the definitive Agreement and Plan of Merger.
Under the terms of the Merger Agreement, Merger Sub will merge with
and into Pivotal, with Pivotal surviving the Merger and becoming a
wholly owned subsidiary of Vmware. On October 10, 2019, Defendants
caused the filing of a preliminary proxy statement on PREM14A with
the United States Securities and Exchange Commission in support of
the Proposed Transaction.
In approving the Proposed Transaction, the Defendants have breached
their fiduciary duties of loyalty, good faith, due care and
disclosure by, inter alia, (i) agreeing to sell Pivotal Software
without first taking steps to ensure that Plaintiff and Class
members would obtain adequate, fair and maximum consideration under
the circumstances; and (ii) engineering the Proposed Transaction to
benefit themselves and/or VMWare without regard for Pivotal
Software public stockholders.
In addition, the Proposed Transaction is unfair and undervalued for
a number of reasons, the Plaintiff contends. Significantly, the
Preliminary Proxy describes an insufficient sales process in which
the only end goal was an "inside" sale to other Companies wholly
owned and/or completely controlled by Dell. He alleges the
Preliminary Proxy is materially deficient, deprives Pivotal
Software stockholders of the information they need to make an
intelligent, informed and rational decision of whether to vote
their shares in favor of the Proposed Transaction, and is thus in
breach of the Defendants' fiduciary duties.
The Preliminary Proxy omits and/or misrepresents material
information concerning, among other things:
(a) the sales process and in particular, certain conflicts of
interest for management;
(b) the data and inputs underlying the financial valuation
analyses that purport to support the fairness opinions
provided by the Company's financial advisors, Morgan
Stanley & Co. LLC; and
(c) the financial projections for Pivotal Software, provided
by Pivotal Software to the Special Committee's financial
advisor Morgan Stanley, to Vmware's financial advisor
Lazard Freres & Company LLC , to Dell's financial advisors
Moelis & Company LLC and Goldman Sachs & Co. LLC for use
in their respective financial analyses.
Absent judicial intervention, the Proposed Transaction will be
consummated, resulting in irreparable injury to the Plaintiff and
the Class, the lawsuit says.
Pivotal Software, Inc. is an American multinational software and
services company based in San Francisco that provides cloud
platform hosting and consulting services.[BN]
The Plaintiff is represented by:
Evan J. Smith, Esq.
Ryan P. Cardona, Esq.
BRODSKY & SMITH, LLC
9595 Wilshire Boulevard, Suite 900
Beverly Hills, CA 90212
Telephone: (877) 534-2590
Facsimile: (310) 247-0160
E-mail: esmith@brodskysmith.com
rcardona@brodskysmith.com
PNC MERCHANT: Claims in Amended Consolidated Healing Suit Narrowed
------------------------------------------------------------------
In the case, HEALING FOR THE ABUSED WOMAN MINISTRIES; KELWIN
INKWEL, LLC; ANITA'S SKIN & BODY CARE; D.B. KOSIE & ASSOCIATES;
CHOI'S BEER SHOP, LLC; and ABRAMOFF LAW OFFICES, on behalf of
themselves and all others similarly situated, Plaintiffs, v. PNC
MERCHANT SERVICES COMPANY, L.P., Defendant, Case No. 17-CV-6255
(NGG) (CLP) (E.D. N.Y.), Judge Nicholas G. Garaufis of the U.S.
District Court for the Eastern District of New York (i) granted in
part and denied in part the Defendant's motion to dismiss under
Federal Rule of Civil Procedure 12(b)(6); and (ii) granted the
Defendant's motion to strike the jury demand.
Plaintiffs Healing for the Abused Woman Ministries ("HAWM"), Kelwin
Inkwel, LLC, Anita's Skin & Body Care ("ASBC"), D.B Kosie &
Associates ("DBKA"), Choi's Beer Shop, LLC, and Abramoff Law
Offices ("ALO") bring the consolidated putative class action
against Defendant PNC Merchant. The Plaintiffs assert four causes
of action under New York law: (1) breach of contract and breach of
the covenant of good faith and fair dealing; (2) conversion; (3)
fraudulent inducement; and (4) unjust enrichment.
The Defendant is a Delaware limited partnership co-owned by PNC
Bank and First Data Corp. that provides credit and debit card
processing services to more than 125,000 merchants. It obtains
merchant customers through a sales team comprising "inside" sales
agents (who follow up, either by email or telephone, on customer
leads developed by PNC Bank), and "outside" sales agents (who work
primarily at PNC Bank's retail branches and visit potential
customers at their places of business to pitch Defendant's
services).
The Plaintiffs allege that low commissions coupled with poor
training has fostered a culture of deception among the Defendant's
sales agents. They further allege that sales agents routinely
deceive merchants regarding the terms of the Merchant Agreement.
They allege that agents are trained to avoid discussing the term
and the fee with merchants and that some agents affirmatively
represent that the deal is "cancelable at any time."
Plaintiffs HAWM and Inkwel filed a class action complaint against
the Defendant on Oct. 26, 2017. On Feb. 6, 2018, HAWM and Inkwel
filed an amended complaint joining DBKA and ASBC as the Plaintiffs.
Separately, on Oct. 22, 2018, Plaintiffs Choi's LLC and ALO filed
a class action complaint, also before the Court. On Nov. 5, 2018,
the separate actions were consolidated on consent of the parties
and a consolidated class action complaint followed on Nov. 21,
2018.
On Feb. 6, 2019, the Defendant filed a motion to dismiss all claims
against it and to strike the jury demand. Subsequently, on Aug.
21, 2019, while the motion to dismiss was pending, the Plaintiffs
filed a further amended complaint deleting certain paragraphs,
which for the purpose of resolving the motion the court deemed
effective nunc pro tunc to Nov. 21, 2018. In the further amended
complaint, the Plaintiffs assert claims, individually and on behalf
of the putative class, for breach of contract and breach of the
implied covenant of good faith and fair dealing, fraudulent
inducement, unlawful termination penalties and conversion, and
unjust enrichment.
Judge Garaufis granted in part and denied in part the Defendant's
motion to dismiss the Amended Consolidated Class Action Complaint.
The Motion to Dismiss is granted as to: (1) all the Plaintiffs'
fraudulent inducement claims; (2) Plaintiffs HAWN; ASBC; Choi's
LLC; and ALO's unjust enrichment claims; (3) all the Plaintiffs'
conversion claims; (4) Plaintiffs HAWM; Kelwin Inkwel, LLC; D.B.
Kosie & Associates; Choi's LLC; and ALO's breach of contract
claims; and (5) all the Plaintiffs' claims for breach of the
implied covenant of good faith and fair dealing.
The Motion to Dismiss is denied as to: (1) Plaintiffs Kelwin
Inkwel, LLC and DBKAs' unjust enrichment claims; and (2) Plaintiff
ASBC's breach of contract claim.
Among other things, Judge Garaufis finds that while the Plaintiffs
will ultimately bear the burden on the issue, the Defendant has not
met its burden on the motion. DBKA and Inkwel both allege
precisely how the ETF is unreasonable as applied to them, and the
Defendant fails to substantively respond to these allegations.
Further, the Judge is unaware of any legal support for the
Defendant's argument that a party's contractual stipulation that a
liquidated damages provision constitutes a reasonable pre-estimate
of damages precludes any subsequent challenge to the enforceability
of that provision. Moreover, accepting the Defendant's argument
would eviscerate the prohibition on punitive liquidated damages
provisions; indeed, under the Defendant's theory, any stipulation
of damages -- no matter how unreasonable or severe -- could be
insulated from judicial inquiry by dint of careful drafting.
In addition, while ASBC alleges to have paid the annual fee in each
of the years from 2013-2015, it also sought and obtained a full
refund of the 2015 fee. Because the complaint does not allege any
other compensable damages ASBC suffered as a result of the
Defendant's assessment of the 2015 annual fee upon it, the fact
that the fee was refunded in full precludes any further recovery.
Because, however, ASBC obtained no refund of the 2013 annual fee
and only a partial refund of the 2014 annual fee, it may proceed
with its breach claim as to the annual fee assessed in these
years.
Further, the Judge granted the Defendant's motion to strike the
jury demand. He holds that when asserted in federal court, the
right to a jury trial is governed by federal law and a contractual
waiver of that right is enforceable if it is made knowingly,
intentionally, and voluntarily. The Plaintiffs urge the Court to
deny the Defendant's motion to strike based on allegations of fraud
in the contracting process, but the contention is mooted by the
Judge's dismissal of the Plaintiffs' fraudulent inducement claims.
The Clerk of Court is directed to terminate Plaintiffs Healing for
the Abused Woman Ministries; Choi's Beer Shop, LLC; and Abramoff
Law Offices.
The remaining parties are directed to contact Magistrate Judge
Cheryl L. Pollack concerning the next steps in the case.
A full-text copy of the District Court's Oct. 8, 2019 Memorandum &
Order is available at https://is.gd/p4FWsn from Leagle.com.
Kelwin Inkwel, LLC, Plaintiff, represented by E. Adam Webb --
Adam@WebbLLC.com -- Webb Webb, Klase & Lemond, LLC, pro hac vice.
Anita's Skin & Body Care & D.B. Kosie & Associates, on behalf of
themselves and all others similarly situated, Plaintiffs,
represented by E. Adam Webb, Klase & Lemond, LLC.
PNC Merchant Services Company, L.P., Defendant, represented by
Casey D. Laffey -- claffey@reedsmith.com -- ReedSmith LLP, Perry A.
Napolitano -- pnapolitano@reedsmith.com -- Reed Smith LLP, pro hac
vice & Justin J. Kontul -- jkontul@reedsmith.com -- Reed Smith LLP,
pro hac vice.
POCATELLO/CHUBBUCK SD 25: Zeyen Class Certification Denial Affirmed
-------------------------------------------------------------------
Judge Roger Stephen Burdick of the Supreme Court of Idaho, Boise,
affirmed the Bannock County district court's order denying Zeyen's
motion for class certification and his motion for leave to further
amend his complaint captioned MIKE ZEYEN, individually, and as a
patron of Pocatello/Chubbuck School District #25 and, on behalf of
and as Guardian Ad Litem of his minor children, Olivia Zeyen, Noah
Zeyen and Ann Zeyen; RACHAEL BOOTH, individually, and as patron of
Pocatello/Chubbuck School District #25 and, on behalf of and as
Guardian Ad Litem of her minor children, Madison Booth and Braydon
Booth, Plaintiffs-Appellants, v. POCATELLO/CHUBBUCK SCHOOL DISTRICT
NO. 25, a municipal corporation of the State of Idaho,
Defendant-Respondent, Docket No. 46193 (Idaho).
In July 2016, Zeyen filed his original complaint on behalf of all
K-12 school children in School District 25. Zeyen alleges that
School District 25's practice of charging fees violates Article IX,
section 1, of the Idaho Constitution. Zeyen sought declaratory
judgment that the fees imposed by School District 25 were illegal
and unconstitutional. He also requested the "reimbursement" or
"refund" of the fees paid for the 2014-15 school year as well as
the following years. In November 2016, the court calendared the
case for trial to take place in fall 2017 with motions to amend
pleadings due on Jan. 3, 2017.
In October 2016, Zeyen moved for class certification. A decision
on that motion was delayed after a few events altered the course of
proceedings. First, School District 25 claimed it stopped charging
fees that were associated with academic credit beginning with the
2016-17 school year. Second, Joki v. State was on appeal to the
Court. The Court heard oral argument in the Joki case in January
2017 and took the case under advisement. A short time after, Zeyen
moved to suspend proceedings until the Court issued a decision in
Joki. The district court granted Zeyen's motion and vacated the
trial dates.
The Court issued the Joki opinion in April 2017. In August 2017,
the district court held a status conference. Shortly thereafter,
Zeyen filed, and the district court granted, a motion for leave to
amend his complaint. The first amended complaint differed from the
original complaint by asserting that Zeyen and the proposed class
have a right and standing to sue both as a constitutional claim
under the Education Article, and also, concurrently, as a claim
under the Constitutionally Based Education Claims Act based on the
Court's decision in Joki.
A few months later, in October 2017, Zeyen moved for leave to amend
his complaint a second time to plead a violation of the takings
clause. The proposed complaint contained additional references to
the takings clause in the Idaho and U.S. Constitutions as well as
42 U.S.C. Section 1983. In support of his motion, Zeyen argued
that he had a viable claim for an unlawful taking under the Court's
recent decision in Hill-Vu Mobile Home Park v. City of Pocatello.
He also asserted that the Educational Claims Act could not limit
his Constitutional claims.
In January 2018, the district court heard argument on Zeyen's
motion for leave to amend the First Amended Complaint and his
motion to certify the class. It orally denied the motion to amend
the First Amended Complaint and took the class-certification issue
under advisement. The court later issued an order denying the
motion for class certification.
In the accompanying memorandum decision, the court recited its
reasoning for denying Zeyen's motion to amend the Amended
Complaint, explaining that Zeyen's "undue delay" in asserting the
takings claim would be "especially prejudicial" given "that
discovery was concluded in accordance with the accelerated
timeline" he had requested. As to class certification, the court
ruled that Zeyen lacked standing to pursue the class action.
The court determined that the Educational Claims Act provides the
sole mechanism for Zeyen to acquire standing under the Education
Article. Because the Educational Claims Act does not address past
wrongs or individual damages, the court ruled that Zeyen failed the
typicality requirement for class-action standing because he lacked
a redressable injury required for individual standing.
At Zeyen's request, the court certified the memorandum decision as
a final appealable judgment under Rule 54(b) of the Idaho Rules of
Civil Procedure, and Zeyen appealed. After his appeal was
conditionally dismissed for lack of a partial judgment, the court
entered a partial judgment denying the motion for class
certification. The Court elected to treat the final partial
judgment as a motion for permissive appeal and granted the motion.
On appeal, the Court must examines (i) whether the district court
abused its discretion when it denied Zeyen's motion for leave to
amend the first amended complaint; (ii) whether it abused its
discretion when it denied Zeyen's motion for class certification
for lack of standing; and (iii) whether Zeyen is entitled to
attorney's fees on appeal.
Judge Burdick determines that Zeyen has failed to show that the
district court abused its discretion in denying his motion for
leave to amend the first amended complaint. The district court
cited two justifying reasons for denying Zeyen's motion: undue
delay and prejudice. Both reasons are supported by the record.
First, Zeyen's delay was undue. Zeyen conflates "timeliness" and
"undue delay." These are separate concepts. The district court
rested its decision on the "undue" nature of the delay, not
timeliness. Zeyen's counsel conceded at the motion hearing that
the failure to include the takings claim in the original complaint
was due to lack of awareness. On balance, the district court
acknowledged and applied the appropriate Foman factors in deciding
whether to grant Zeyen's motion for leave to amend the complaint.
Next, the Judge finds no error in the district court's
interpretation of the Educational Claims Act. The Act provides
that the district court must issue declaratory relief only in the
event the school is providing all the required services. Zeyen
pursues a judgment declaring that School District 25's past
practices were in violation of the Education Article. Again,
Zeyen's sought-after relief is not provided by the plain terms of
the Act.
The Judge also declines to entertain Zeyen's constitutional
argument because it was not considered by the district court and
therefore, there is no adverse ruling to appeal. The district
court never addressed whether the Educational Claims Act
impermissibly forecloses a takings action because Zeyen's motion
for leave to amend the first amended complaint was denied. In both
the original complaint and the first amended complaint, Zeyen
exclusively sought relief under the Education Article and the
Educational Claims Act. Even though Zeyen pleaded facts that could
fit a takings claim, Zeyen failed to plead a short and plain
statement of a takings cause of action thereby giving School
District 25 notice that such a claim would be brought. As a
byproduct of Zeyen's failure to adequately present the takings
claim, he has failed to secure an adverse ruling. Without an
adverse ruling, we will not review Zeyen's argument on appeal.
Finally, Zeyen argues in his appellant's brief that he is entitled
to attorney's fees on appeal under the private-attorney-general
doctrine, under the common-fund doctrine, under 42 U.S.C. Section
1988, or under such other measure as the Court may deem
appropriate. However, Zeyen retracts his request for attorney's
fees in his reply brief. The Judge accepts the rescission and
declines to award attorney's fees on appeal. Even if Zeyen's
request for attorney's fees has legal or factual foundation, Zeyen
is correct that an attorney's fee award would be premature at this
time because attorney's fees cannot be awarded before a final
decision on the merits of the case, rules Judge Burdick.
For these reasons, Judge Burdick affirmed the district court's
denial of Zeyen's motion to certify the class and his motion for
leave to amend the first amended complaint.
A full-text copy of the Court's Oct. 23, 2019 Opinion is available
at https://is.gd/VfaF6l from Leagle.com.
Huntley Law Firm, PLLC, Boise and Wood Law Group, PC, Idaho Falls,
for appellants. Theodore J. Wood -- hwood@hwoodlaw.com -- argued.
Anderson, Julian & Hull, LLP, Boise, for respondent. Brian K.
Julian -- bjulian@ajhlaw.com -- argued.
PR.BUSINESS LLC: Faces Murphy TCPA Suit Over Unwanted Robocalls
---------------------------------------------------------------
ROBERT A. MURPHY, IV, Individually and on behalf of a class of all
persons and entities similarly situated, Plaintiff v. PR.BUSINESS,
LLC (d.b.a. Onboarding Alexa and Alexa Signup); and YEXT One
Madison Avenue, Defendants, Case No. 2:19-cv-04909-GEKP (E.D. Pa.,
Oct. 21, 2019), alleges that the Defendants made or caused to be
made automated telephone calls using equipment prohibited by the
Telephone Consumer Protection Act to promote their services without
the Plaintiff's prior express written consent, and while his number
was on the National Do Not Call Registry.
According to the complaint, since the call to the Plaintiff was
transmitted using technology capable of generating thousands of
similar calls per day, the Plaintiff brings this action on behalf
of a proposed nationwide class of other persons who were sent the
same illegal telemarketing calls.
Month after month, unwanted robocalls and texts, both telemarketing
and informational, top the list of consumer complaints received by
the Federal Communications Commission, the lawsuit says.
The Plaintiff is an adult citizen residing in Delaware County,
Pennsylvania.
PR.business engages in digital marketing. YEXT engages in digital
marketing nationwide YEXT has partnered with and/or contracted with
Defendant PR.Business to expand its customer base by robocalling
potential clients.[BN]
The Plaintiff is represented by:
Glenn A. Ellis, Esq.
Joseph Marano, Esq.
FREIWALD LAW, P.C.
1500 Walnut Street, 18th Floor
Philadelphia, PA 19102
Telephone: 215 875-8000
Facsimile: 215-875-8575
E-mail: gae@freiwaldlaw.com
jm@freiwaldlaw.com
PRUDENTIAL INSURANCE: Cho Sues Over Breaches of Fiduciary Duty
--------------------------------------------------------------
Young Cho, Individually and as Representative of a Class of
Similarly Situated Persons, and on Behalf of the Prudential
Employee Savings Plan v. THE PRUDENTIAL INSURANCE COMPANY OF
AMERICA, PRUDENTIAL EMPLOYEE SAVINGS PLAN ADMINISTRATIVE COMMITTEE,
PRUDENTIAL EMPLOYEE SAVINGS PLAN INVESTMENT OVERSIGHT COMMITTEE,
AND DOES NO.1-20, Case No. 2:19-cv-19886 (D.N.J., Nov. 5, 2019), is
brought under the Employee Retirement Income Security Act of 1974
seeking to remedy losses to the Plan caused by the Defendants'
breaches of fiduciary duty and violations of ERISA's prohibited
transaction provisions.
The Plaintiff alleges that the Defendants violated the ERISA by
overpopulating the Plan with proprietary mutual funds offered by
Prudential and its affiliates, failing to monitor the performance
of those fund, and failing to adequately disclose the amount of
recordkeeping fees received by Prudential, resulting in the payment
of grossly excessive fees to Prudential and significant losses to
the Plan and its participants like the Plaintiff.
By selecting Prudential-affiliated funds, the Defendants placed
Prudential's interests above the Plan's interests, the Plaintiff
contends. Instead of considering objective criteria like fees and
performance to select investments for the Plan, the Investment
Oversight Committee selected Prudential Funds because they were
familiar and generated substantial revenues for Prudential, the
Plaintiff asserts. Unaffiliated investment products do not generate
any fees for Prudential. As a result, the Committee chose many
Prudential funds to benefit Prudential, the sponsor of the Plan,
without investigating whether Plan participant would be better
served by investments managed by unaffiliated companies.
Exacerbating the problems arising from these sever conflicts of
interest, several of the unaffiliated investment options offered to
Plan participants were egregiously expensive and generally
underperformed compared to benchmarks selected by the Investments
Oversight Committee, says the complaint. Hence, the Plaintiff
asserts claims against the Defendants for: breach of the fiduciary
duties of prudence and loyalty; engaging in prohibited transaction
with a party-in=interest; engaging in prohibited transaction with a
fiduciary; failure to monitor fiduciaries; and in the alternative,
knowing breach of trust.
The Prudential Insurance Company of America is the largest
insurance company in North America and one of the largest financial
institutions in the world. Along with its primary business,
insurance, it also operates in securities, investments, residential
real estate, employee benefits, home mortgages, and the corporate
relocation industry.[BN]
The Plaintiff is represented by:
James C. Shah, Esq.
SHEPHERD, FINKELMAN, MILLER & SHAH, LLP
1620 N. Commerce Pkwy., Ste. 320
Collingswood, NJ 08107
Phone: 856/858-1770
Facsimile: 856/858-7012
Email: jshah@sfmslaw.com
nfinkelman@sfmslaw.com
PURE DEBT: Order on Evidence Preservation in Boehm Suit Entered
---------------------------------------------------------------
Magistrate Judge Cheryl R. Zwart of the U.S. District Court for the
District of Nebraska has entered an order regarding the
preservation of evidence in the case captioned ANDREW BOEHM,
individually and on Behalf of all others similarly situated,
Plaintiff, v. PURE DEBT SOLUTIONS CORPORATION., a Wyoming
corporation, Defendant, Case No.: 8:19-cv-00117-LSC-CRZ (D. Neb.).
The action, brought by Plaintiff Boehm, concerns alleged violations
of the Telephone Consumer Protection Act (TCPA) by the Defendant,
concerning alleged automated and/or artificial or prerecorded calls
to cellular telephone numbers of the Plaintiff and a nationwide
putative class of similarly situated persons, during the period of
March 20, 2015 through March 20, 2019. The Defendant denies these
claims.
On Sept. 13, 2019, the Court issued an order limiting discovery at
this time by the Parties to the individual claims of the Plaintiff,
to be completed by Dec. 10, 2019, essentially bifurcating merits
and class certification discovery until further notice. Thus, in
an effort to prevent the loss or destruction of data that is
potentially relevant to the putative class action, which data is
reasonably believed to be in the possession or control of
third-party cellular telephone carriers and companies used by the
Defendant to place outgoing calls, and finding good cause under
Fed. R Civ. P. 26(d), the Magistrate Judge ordered the preservation
of evidence as follows:
1) The following cellular telephone companies, including:
i) AT&T Mobility, ii) Sprint/Nextel Communications, iii)
T-Mobile, USA, iv) Cellco Partnership d/b/a Verizon Wireless
v) U.S. Cellular and vi) MetroPCS, shall, without undue delay
upon service of this order, take reasonable steps to preserve
their regular business records concerning all calls from the
following originating numbers: (402) 327-3186 and
(402) 389-3843 to all terminating cellular telephone numbers
of their cellular telephone customers, as well as subscriber
information for the accounts with such terminating cellular
telephone numbers, for the period of March 20, 2015 through
March 20, 2019, until further notice from or authorized by
the Court.
The Plaintiff is ordered to serve the Order on the cellular
telephone carriers identified within 10 days. In the event
one or more of the parties to the action is able to
identify additional cellular telephone carriers who may
have possession of control of potentially relevant
information, such carriers are likewise ordered to
preserve evidence as indicated, upon service of the Order.
2) Wolf Marketing LLC, shall, without undue delay upon
service of the Order, take reasonable steps to preserve
their regular business records, including dialer and phone
records, records of consent, opt-in records, and records
of equipment used, concerning all outbound and inbound calls
(including text messages), including but not limited to
calls relating to Caller I.D. numbers (402) 327-3186 and
(402) 389-3843, for the period of March 20, 2015 through
March 20, 2019, until further notice from or authorized by
the Court.
The Defendant is ordered to serve the Order on Wolf
Marketing within ten days by certified mail, return
receipt requested at Wolf Marketing's last known address.
"Service" of the order will be complete upon mailing.
The Order does not require the production of such evidence
at this time. However, such evidence may be ordered by
the Court to be produced in connection with the action
in the future.
The preservation order will expire automatically effective Dec. 31,
2020, unless otherwise ordered by the Court.
A full-text copy of the District Court's Oct. 11, 2019 Order is
available at https://is.gd/m924c0 from Leagle.com.
Andrew Boehm, individually and on behalf of all others similarly
situated, Plaintiff, represented by Abbas Kazerounian --
ak@kazlg.com -- KAZEROUNIAN LAW FIRM & Jason Ibey --
jason@kazlg.com -- KAZEROUNI LAW FIRM, pro hac vice.
Pure Debt Solutions Corporation, a Wyoming corporation, Defendant,
represented by Elizabeth A. Culhane, FRASER, STRYKER LAW FIRM,
Genevieve Bradley -- gbradley@rothjackson.com -- ROTH, JACKSON LAW
FIRM, pro hac vice, Joseph E. Jones -- jjones@fraserstryker.com --
FRASER, STRYKER LAW FIRM, Mitchell N. Roth -- mroth@rothjackson.com
-- ROTH, JACKSON LAW FIRM, pro hac vice & Sarah L. McGill --
SMCGILL@FraserStryker.com -- FRASER, STRYKER LAW FIRM.
R&R EXPRESS: Class of Logistics Coordinators Certified in Rood Suit
-------------------------------------------------------------------
In the case, BEN ROOD, Plaintiff, v. R&R EXPRESS, INC., Defendant,
Case No. 2:17-cv-1223-NR (W.D. Pa.), Judge J. Nicholas Ranjan of
the U.S. District Court for the Western District of Pennsylvania
granted Mr. Rood's motion for conditional certification but denied
without prejudice his requests related to notice.
Rood is a former employee of Defendant R&R Express. Mr. Rood filed
a "collective/class action complaint" alleging, among other things,
that R& R Express failed to pay him and others similarly situated
overtime in violation of the Fair Labor Standards Act ("FLSA").
R&R Express provides transportation and logistics services. It
employed Mr. Rood as a Logistics Coordinator from May 31, 2016
until Sept. 12, 2017. As a Logistics Coordinator, Mr. Rood was
responsible for arranging logistics support (freight brokerage) for
industries throughout the contiguous United States. Multiple
witnesses testified that Logistics Coordinators work whatever hours
are required to succeed. According to Mr. Rood, that means that
he, and other Logistics Coordinators, necessarily worked overtime.
Mr. Rood alleges that these "Logistics Coordinators were all
subject to the same policy resulting in the systematic, blanket
denial of overtime pay to employees who regularly worked more than
40 hours in workweeks during the class period who performed
non-exempt duties and would otherwise have been entitled to
overtime pay during the relevant time period.
Mr. Rood seeks to recover unpaid overtime on behalf of the
"Logistics Coordinators employed by R&R Express over the past three
years. His proposed collective includes an estimated 18 potential
members.
Mr. Rood now moves the Court to conditionally certify a collective
action. Additionally, Mr. Rood asks the Court to approve his
proposed Notice of Conditionally Certified Collective Action
Lawsuit; approve his proposed Opt-in Consent Form; and order R&R
Express to produce the contact information for each of its current
and former employees in the proposed notice group.
Judge Ranjan finds that Mr. Rood has made the "modest factual
showing" that he and the putative notice recipients are similarly
situated for step one of the certification analysis. Mr. Rood has
offered testimony from several witnesses that the Logistics
Coordinators have identical job titles, identical job descriptions,
materially similar (if not identical) job duties, worked from the
same location, were subject to the same managerial oversight, and
were compensated according to the same compensation structure. As
a result, Mr. Rood has met his burden of showing that the
collective he seeks to represent were together the victims of a
single decision, policy or plan.
R&R Express contests conditional certification on two grounds.
First, R&R Express argues that the Logistics Coordinators fall
under the administrative exemption to the FLSA's overtime pay
requirement. Second, R&R Express argues that conditional
certification should be denied because many fact-specific
mini-trials would be necessary to establish the claims of
individual Logistics Coordinators and R&R's defenses to them.
Judge Ranjan recognizes that the question of whether an employer
has properly classified a position as exempt from the FLSA overtime
pay requirements compels a court to perform 'an individual,
fact-specific analysis of each employee's job responsibilities
under the relevant statutory exemption criteria' to determine
whether all employees in that position uniformly carried out
similar duties and responsibilities. However, the court performs
that analysis at the 'decertification' stage, and not the initial
'conditional certification' stage. Any other individualized issues
related to whether "the putative class members were similarly
situated'" likewise cannot be resolved at this stage of the
certification process.
R&R Express, however, is free to raise these arguments at later
stages of the case, particularly when Mr. Rood would face a more
onerous standard. At this point, the Judge cannot reach the merits
of Mr. Rood's FLSA claims or make conclusive findings.
Mr. Rood has asked the Court to endorse his proposed "Notice of
Collective Action Lawsuit" and "instruct R&R Express to produce the
contact information for each of its current and former employees in
the Proposed FLSA Notice Group." R&R Express did not respond to
either of Mr. Rood's requests about Notice, instead focusing its
briefing on its merits-based defenses to conditional
certification.
The Judge holds that disputes about the form and content of any
notice are best resolved by the parties. He will afford the
parties 20 days to meet and confer about the form of notice, the
method of dissemination of that notice, and the database of
employees to which the notice will be distributed. If the parties
cannot agree, Mr. Rood is free to file a motion to resolve any
disputes over the form of notice.
Based on the foregoing, Judge Ranjan granted in part and denied in
part Mr. Rood's Motion to Conditionally Certify an FLSA Collective
and to Facilitate Notice without prejudice. An appropriate Order
follows.
A full-text copy of the Court's Oct. 23, 2019 Memorandum Opinion is
available at https://is.gd/ow25Gg from Leagle.com.
BEN ROOD, on behalf of himself and similarly situated employees,
Plaintiff, represented by Joseph H. Chivers --
jchivers@employmentrightsgroup.com -- & John R. Linkosky --
linklaw@comcast.net.
R&R EXPRESS, INC., Defendant, represented by Patrick Sorek, Burns
White & Ralph M. Monico -- rmmonico@burnswhite.com -- Burns White
Center.
RANDSTAD PROFESSIONALS: Mennucci Seeks OT Pay for Recruiters
------------------------------------------------------------
CAROL MENNUCCI, on behalf of herself and those similarly situated,
Plaintiff v. RANDSTAD PROFESSIONALS US, LLC, a Foreign Limited
Liability Company, Defendant, Case No. 1:19-cv-04693-TWT (N.D. Ga.,
Oct. 21, 2019), seeks unpaid wages from the Defendants for overtime
work for which the Plaintiff and the proposed members class did not
receive overtime premium pay, and liquidated damages pursuant to
the Fair Labor Standards Act.
The Plaintiff was an hourly-paid non-exempt recruiter and performed
related activities for the Defendant in Brevard County, Florida.
The Plaintiff on behalf of herself and other hourly recruiter
employees and former recruiter employees similarly situated file
the complaint against Defendants.
The Plaintiff, and those similarly situated to her, routinely
worked in excess of 40 hours per week as part of their regular job
duties. Despite working more than 40 hours per week, the Defendant
failed to pay the Plaintiff, and those similarly situated to her,
overtime compensation at a rate of time and a half her regular rate
of pay for hours worked over forty in a workweek, the lawsuit
says.
The Defendant is a wholly-owned subsidiary of Randstad Holding
N.V., a publicly held company, which engages in the provision of
solutions in the fields of flexible work and human resources
services and holds itself out as "a global leader in the HR
services industry."[BN]
The Plaintiff is represented by:
Andrew R. Frisch, Esq.
MORGAN & MORGAN, P.A.
8151 Peters Road, Suite 4000
Plantation, FL 33324
Telephone: (954) WORKERS
Facsimile: (954) 327-3515
E-mail: AFrisch@forthepeople.com
RIVEREDGE HOSPITAL: Gresham Sues Over Illegal Use of Biometrics
---------------------------------------------------------------
Crystal Gresham, individually, and on behalf of all others
similarly situated v. RIVEREDGE HOSPITAL, INC. d/b/a RIVEREDGE
HOSPITAL, Case No. 2019CH12841 (Ill. Cir., Cook Cty., Nov. 5,
2019), seeks to redress and curtail the Defendant's unlawful
collection, use, storage, and disclosure of the Plaintiff's
sensitive biometric data.
The Defendant's employees are required to have their fingerprints
scanned by a biometric timekeeping device. Unlike ID badges or time
cards--which can be changed or replaced if stolen or
compromised--fingerprints are unique, permanent biometric
identifiers associated with each employee. This exposes the
Defendant's employees to serious and irreversible privacy risks.
Recognizing the need to protect its citizens from such situation,
Illinois enacted the Biometric Information Privacy Act,
specifically to regulate companies that collect and store Illinois
citizens' biometrics, such as fingerprints.
According to the complaint, the Defendant has violated and
continues to violate BIPA because it did not and continues not to:
properly inform the Plaintiff in writing of the specific purpose
and length of time for which their fingerprints were being
collected, stored, and used, as required by BIPA; receive a written
release from the Plaintiff to collect, store, or otherwise use
their fingerprints, as required by BIPA; publish a publicly
available retention schedule and guidelines for permanently
destroying Plaintiff's fingerprints, as required by BIPA; and
obtain consent from Plaintiff to disclose, redisclose, or otherwise
disseminate their fingerprints to a third party as required by
BIPA.
Crystal Gresham is a natural person and a citizen of the state of
Illinois.
Riveredge owns and operates a behavioral health care facility,
located in Cook County.[BN]
The Plaintiff is represented by:
Ryan F. Stephan, Esq.
James B. Zouras, Esq.
STEPHAN ZOURAS, LLP
100 N. Riverside Plaza, Suite 2150
Chicago, IL 60606
Phone: (312) 233-1550
Fax: (312) 233-1560
Email: rstephan@stephanzouras.com
jzouras@stephanzouras.com
ROCK ENTERPRISES: Goncalves Sues Over Unpaid Overtime Wages
-----------------------------------------------------------
Laura Goncalves, individually and on behalf of all other similarly
situated current and former employees v. ROCK ENTERPRISES USA,
INC., a Florida Limited liability corporations d/b/a Subway
Restaurant, MARTHA ROBEEN, individually and JRH & ASSOCIATES, LLC,
d/b/a JRH Employee Leasing, Case No. 1:19-cv-00933-TFM-B (S.D.
Ala., Nov. 5, 2019), is brought under the Fair Labor Standards Act
accusing the Defendants of not paying overtime wages.
The Defendants violated the FLSA in that they failed to pay the
Plaintiff for all hours she worked by not compensating her at the
rate of time and one-half her regular rate of pay for all the hours
worked over 40 hours in one workweek, says the complaint.
The Plaintiff was employed at the Defendant's Baldwin County
location from 2017 to 2018.
Rock Enterprises is a franchisee of Subway restaurants in Baldwin
County, Alabama.[BN]
The Plaintiff is represented by:
Ronald W. Kim, Esq.
RON KIM LAW
262 German Oak Drive
Memphis, TN 38018
Email: rk@ronkimlaw.com
- and -
Nathaniel Bishop, Esq.
JACKSON, SHIELDS, YEISER, HOLT, OWEN AND BRYANT
262 German Oak Drive
Memphis, TN 38018
Email: nbishop@jsyc.com
SAN GABRIEL: Cal. App. Flips Class Certification Denial in Gonzales
-------------------------------------------------------------------
In the case, FRANCISCO GONZALES, Plaintiff and Appellant, v. SAN
GABRIEL TRANSIT, INC., et al., Defendants and Respondents, Case No.
B282377 (Cal. App.), Judge Thomas L. Willhite, Jr. of the Court of
Appeals of California for the Second District, Division Four,
reversed the trial court's order denying Gonzales' motion for class
certification.
Appellant Gonzales formerly worked as a driver for respondent San
Gabriel Transit ("SGT"), a company that coordinates with public and
private entities to arrange transportation services for passengers.
In February 2014, Gonzales filed the putative class action seeking
to represent over 550 drivers engaged by SGT as independent
contractors from February 2010 to the present.
Among other things, Gonzales alleged that by misclassifying drivers
as independent contractors, SGT violated various provisions of the
Labor Code and the Industrial Welfare Commission ("IWC")'s wage
orders, particularly Wage Order No. 9-2001, which governs the
transportation industry, and engaged in unlawful business practices
under Business and Professions Code section 17200 (17200).
In the operative first amended complaint, Gonzales alleges that he
and a similarly situated class of SGT's drivers during the four
years immediately preceding and during the pendency of this action
were misclassified as independent contractors in violation of the
Labor Code, administrative regulations and wage order provisions,
and that SGT engaged in unfair business practices.
Specifically, Gonzales alleged causes of action for (1) unpaid
wages; (2) failure to pay minimum wage; (3) failure to pay overtime
compensation; (4) failure to provide meal and rest breaks; (5)
failure to furnish accurate wage statements; (6) waiting time
penalties (§§ 201-203); (7) failure to reimburse business
expenses; (8) common law conversion; (9) unfair business practices;
(10) misclassification as independent contractor; (11) recovery for
unlawful wage deductions; (12) conversion; and (13) accounting.
In January 2016, Gonzales filed a motion seeking class
certification for approximately 560 members of a class defined as
all non-employee Drivers, or Lessees, of SGT from Feb. 14, 2010 to
the present who drove a taxicab or van and paid SGT a weekly
vehicle lease.
In the alternative, Gonzales proposed certification of three
subclasses:
a. Subclass A: All non-employee Drivers, or Lessees, of SGT
from Feb. 14, 2010 to the present who drove a taxicab
or van, paid SGT a weekly lease, and transported
passengers in connection with Access Paratransit
Services, Inc.
b. Subclass B: All non-employee Drivers, or Lessees, of SGT
from Feb. 14, 2010 to the present who drove a taxicab or
van, paid SGT a weekly vehicle lease, and transported
school children in connection with a school route.
c. Subclass C: All other non-employee Drivers, or Lessees,
of SGT from Feb. 14, 2010 to the present who drove a
taxicab or van and paid SGT a weekly vehicle lease.
The trial court did not evaluate individual causes of action.
Rather, analyzing the action as a whole, premised on terms
contained in several lease agreements in effect during the class
period, the trial court found that Gonzales failed to demonstrate
the requisite community of interest or typicality among SGT drivers
under the then-prevailing legal test, and denied the motion for
class certification.
While the appeal was pending, the California Supreme Court decided
Dynamex Operations West, Inc. v. Superior Court (2018) 4 Cal.5th
903, in which it adopted the "ABC test" used in other jurisdictions
to streamline and provide consistency in analyzing the distinction
between employees and independent contractors for purposes of wage
order claims.
On review, Judge Willhite concludes that: (1) the ABC test adopted
in Dynamex is retroactively applicable to pending litigation on
wage and hour claims; (2) the ABC test applies with equal force to
Labor Code claims that seek to enforce the fundamental protections
afforded by wage order provisions; and (3) statutory claims
alleging misclassification not directly premised on wage order
protections, and which do not fall within the generic category of
"wage and hour laws," are appropriately analyzed under what has
commonly been known as the "Borello" test.
Because the trial court did not have the benefit of the Dynamex
decision, Judge Willhite reversed and remanded the matter with
directions.
On remand, the trial court is tasked to:
(1) evaluate which alleged Labor Code claims enforce wage order
requirements, and which do not;
(2) as to the Labor Code claims that enforce wage order
requirements, apply the ABC test as set forth in Dynamex to
determine whether the requirements of commonality and
typicality for purposes of certification of a class action
are satisfied;
(3) as to the Labor Code claims that do not enforce wage order
requirements, apply the Borello test to determine whether
the requirements of commonality and typicality for
purposes of certification of a class action are satisfied;
(4) as to the derivative claim under section 17200, apply the
ABC or Borello test as appropriate for the underlying
alleged unlawful business practice; and
(5) in the event the court determines class certification is
appropriate for any claims, complete the analysis by
determining whether proceeding as a class action would be
superior to alternative methods of adjudication.
A full-text copy of the District Court's Oct. 8, 2019 Opinion is
available at https://is.gd/yiorMr from Leagle.com.
Law Offices of Thomas W. Falvey, Thomas W. Falvey --
thomaswfalvey@gmail.com -- Armand R. Kizirian --
armand@kizirianlaw.com -- and Michael H. Boyamian for Plaintiff and
Appellant.
Dunn DeSantis Walt & Kendrick, James A. McFaul --
jmcfaul@ddwklaw.com -- Bradley A. Lebow -- blebow@ddwklaw.com --
and Kevin V. DeSantis -- kdesantis@ddwklaw.com -- for Defendants
and Respondents.
SECURED LAND: Sued by Van Gestel Over Improperly Charged Fees
-------------------------------------------------------------
E. Alison Van Gestel, individually and on behalf of all others
similarly situated v. SECURED LAND TRANSFER LLC d/b/a SUNBELT TITLE
AGENCY, Case No. 19-007343-CI (Fla. Cir., Pinellas Cty., Nov. 5,
2019), arises from closing fees improperly charged and collected by
the Defendant from buyers of real estate transaction in the state
of Florida.
The Plaintiff entered into a real estate purchase and sale contract
with the owner of certain real estate located in Pinellas, Florida.
Pursuant to the terms of the Contract, the Plaintiff agreed to pay
cash for the Seller's Property. The Defendant was the designated
Closing Agent for the procurement of title insurance and to perform
closing services in connection with the transaction. The Defendant
performed Closing Services for which the Defendant charged a fee.
The Contract provided that the Closing Services Fee would only be
charged to, and collected from, the Seller. Because the sale was a
cash transaction, there was no lender's policy, endorsement or
related loan closing services required to be paid by the Plaintiff,
the Buyer. The Plaintiff alleges that the closing fee of $375 was
improperly charged by the Defendant to the Plaintiff despite
explicit language in the Contract that "Seller shall pay for
Owner's Policy and Charges," which included the Defendant's Closing
Services Fee. Consequently, the Plaintiff has been improperly and
unfairly charged monies by the Defendant, which the Defendant was
not authorized to collect from the Plaintiff, says the complaint.
The Plaintiff is an individual residing in Pinellas County,
Florida.
The Defendant is a licensed title agency and a foreign company
licensed to do business Florida.[BN]
The Plaintiff is represented by:
Joshua H. Eggnatz, Esq.
EGGNATZ PASCUCCI
7450 Griffin Rd., Suite 230
Davie, FL 33314
Email: jeggnatz@justiceearned.com
- and -
Seth M. Lehrman, Esq.
EDWARDS POTTINGER LLC
425 North Andrews Avenue, Suite 2
Fort Lauderdale, FL 33301
Phone: 954-524-2820
Facsimile: 954-524-2822
Email: seth@epllc.com
- and –
Richard B. Feinberg, Esq.
FLORIDA LEGACY LAW, LLC
600 Cleveland Street, Suite 313
Clearwater, FL 33755
Phone: 727 231-6400
Email: ricfeinberg@hotmail.com
SEMI-TROPIC COOPERATIVE: Improperly Pays Workers, Martinez Claims
-----------------------------------------------------------------
Fabian Caballero Martinez, on behalf of himself and all others
similarly situated v. SEMI-TROPIC COOPERATIVE GIN & ALMOND HULLER
INC., and DOES 1 through 20, inclusive, Case No. 1:19-at-00812
(E.D. Cal., Nov. 5, 2019), is brought pursuant to the Migrant and
Seasonal Agricultural Worker Protection Act and the California
Labor Code arising from the Defendants' failure to pay overtime
wages.
The Defendants violated wage and hour laws by failing to pay all
overtime wages owed to their employees and failing to pay wages of
terminated employees, says the complaint.
The Plaintiff was employed as a non-exempt employee of the
Defendants.
The Defendants conducted and conducts business in Kern County.[BN]
The Plaintiff is represented by:
Stan S. Mallison, Esq.
Hector R. Martinez, Esq.
MALLISON & MARTINEZ
1939 Harrison Street, Suite 730
Oakland, CA 94612-3547
Phone: (510) 832-9999
Facsimile: (510) 832-1101
Email: Stanm@TheMMLAwFirm.com
Hectorm@TheMMLAwFirm.com
STATE FARM LIFE: Whitman Files Class Suit in Washington
-------------------------------------------------------
A class action lawsuit has been filed against State Farm Life
Insurance Company. The case is styled as William T Whitman,
individually and on behalf of all others similarly situated,
Plaintiff v. State Farm Life Insurance Company, an Illinois
corporation, Defendants, Case No. 3:19-cv-06025 (W.D. Wash., Oct.
30, 2019).
The docket of the case states the nature of suit as Insurance filed
as a Diversity Action.
State Farm Life Insurance Company operates as an insurance company.
The Company offers life insurance products, as well as insures
cars, boats, motorcycles, homes, and businesses.[BN]
The Plaintiff is represented by:
Kim D Stephens, Esq.
TOUSLEY BRAIN STEPHENS
1700 SEVENTH AVE, STE 2200
SEATTLE, WA 98101
Tel: (206) 682-5600
Email: kstephens@tousley.com
SUTTER HEALTH: Settles Antitrust Class Action
---------------------------------------------
Tara Bannow, writing for Modern Healthcare, reports that Sutter
Health's tentative settlement in its class action lawsuit means the
not-for-profit hospital giant will likely get to keep more details
about its allegedly anticompetitive contracting practices hidden
than if the case had gone to trial, experts say.
The San Francisco Superior Court judge overseeing the case
announced on Oct. 16, the day opening arguments were expected to
begin, that the parties had reached a tentative agreement. The
judge expects a final settlement to come down in February or
March.
Being able to keep details about its contracting practices secret
was likely a significant factor in deciding to settle, said Bill
Horton, a partner with Jones Walker and co-chair of its healthcare
industry team. Sutter likely has a proprietary interest in the
model it has developed, and a trial doesn't afford control over the
information that's revealed, said Horton, who is not involved in
the Sutter lawsuit.
"That's a very uncontrolled setting if you're interested in
managing the flow of information," he said. "Having proprietary
information come out during the course of a trial is just not the
way you're going to want to do it."
The class action antitrust lawsuit involved about 1,500 self-funded
health plans. The trial had been expected to last three months,
which is very costly and time consuming, Horton said. A government
entity like the state of California is a formidable challenger
given that it relies on tax dollars and not private money, he
said.
Health plans in the case were seeking $900 million in damages.
Jonathan Grossman, an antitrust attorney with Cozen O'Conner who
isn't involved in the lawsuit, said he expects the settlement in
this case will likely include a relatively small amount in damages
in exchange for Sutter's commitment to end the practices that were
the subject of the litigation.
The downside of a settlement is that it does not offer a legal
precedent on hospital or insurer practices like a trial would,
Grossman said.
"If you are a hospital system in Denver, you don't have the same
kind of takeaways as you do if there was a trial litigated to
conclusion," he said.
Sutter spokeswoman Amy Thoma Tan wrote in an email that the parties
have reached a settlement agreement to resolve the case, but
declined to share any additional information. Jury selection in the
Superior Court of California, San Francisco County already began.
Ken Garcia, a spokesman for the San Francisco County Superior
Court, said the judge overseeing the case, Anne-Christine Massullo,
cannot comment on the settlement.
The case got a second wind last year when California Attorney
General Xavier Becerra filed a similar lawsuit that was ultimately
combined with the existing one. [GN]
SYNEOS HEALTH: Staff Promotions Policy Violates FMLA, Bigelow Says
------------------------------------------------------------------
ANDREA BIGELOW, individually and on behalf and of all others
similarly situated, Plaintiff, v. SYNEOS HEALTH, LLC, Defendant,
Case No. 3:19-cv-01145-MMH-JRK (M.D. Fla., Oct. 7, 2019) alleges
violation of the Family Medical Leave Act.
According to the complaint, the Plaintiff utilized Family Medical
Leave Act (FMLA) leave for the birth of her child from April 1,
2019, through May 28, 2019. Upon the conclusion of her FMLA leave,
the Plaintiff returned to work without consequence at that time,
and commenced her job duties and responsibilities without issue.
However, in August 2019, the Plaintiff discovered that the
Defendant promoted one of her male peers, who had not recently
utilized FMLA, into a position of Senior Clinical Operations Lead.
The Plaintiff was as qualified, if not more qualified, than this
non-FMLA protected male peer to receive the same promotion, but the
Plaintiff was never contacted, notified, nor considered for, the
promotion.
On August 30, 2019, the Plaintiff met with the Defendant's
management, during which time she inquired as to why she was not
considered and notified of the promotion opportunity.
At this time, and in response to the Plaintiff's inquiry, the
Defendant's management explained that it was the Defendant's
company policy that, if employees are on FMLA leave in the year and
during the time promotions are made available or considered, said
employee is not eligible or considered for said promotion because
of her use of FMLA leave.
Syneos Health, LLC operates as a biopharmaceutical company. The
Company offers clinical development programs and clinical trials in
the areas of cardiovascular health, central nervous system,
endocrinology, infectious diseases, oncology, pediatrics, and
psychiatry. Syneos Health serves patients worldwide. [BN]
The Plaintiff is represented by:
Noah E. Storch, Esq.
RICHARD CELLER LEGAL, P.A.
10368 West State Road 84, Suite 103
Davie, L 33324
Telephone: (866) 344-9243
Facsimile: (954) 337-2771
E-mail: noah@floridaovertimelawyer.com
TAKEDA PHARMA: Court Tosses ACTOS Direct Purchaser Antitrust Suit
-----------------------------------------------------------------
In the case IN RE ACTOS DIRECT PURCHASER ANTITRUST LITIGATION, Case
No. 15-CV-3278 (RA) (S.D. N.Y.), Judge Ronnie Abrams of the U.S.
District Court for the Southern District of New York granted the
Defendants' Motions to Dismiss, except for Takeda's motion to
dismiss the individual monopolization claim against it.
The case concerns whether several pharmaceutical companies are
liable to the direct purchasers ("Direct-Purchaser Plaintiffs" or
"DPPs") of brand and generic versions of two diabetes drugs, called
ACTOS and ACTOplus met, for unlawfully inflating those drugs'
prices in violation of federal antitrust laws.
Specifically, DPPs assert monopolization and restraint of trade
claims, pursuant to Sections 1 and 2 of the Sherman Act, against
the innovators of ACTOS and ACTOplus met, Defendants Takeda
Pharmaceutical Co. Ltd., Takeda America Holdings, Inc., Takeda
Pharmaceuticals U.S.A., Inc., and Takeda Development Center
Americas, Inc. The DPPs also assert claims under those provisions
against the following companies marketing generic versions of ACTOS
and ACTOplus: Defendants Mylan Inc. and Mylan Pharmaceuticals Inc.;
Actavis PLC and Watson Laboratories, Inc.; Ranbaxy, Inc., Ranbaxy
Laboratories, Ltd., and Ranbaxy Pharmaceuticals, Inc.; and Teva
Pharmaceutical Industries, Ltd. and Teva Pharmaceuticals USA, Inc.
The issues in the present case largely revolve around the proper
interpretation of a provision of the Hatch-Waxman Act, which
controls how and when manufacturers of brand name drugs, and their
generic counterparts, can lawfully enter the market. Normally,
inventors obtain patents for their brand-name drugs. Patents that
protect a drug may include claims directed to: (1) a single active
ingredient of the drug, that is, a chemical compound, referred to
in the Act's supporting regulations as a "drug substance" claim;
(2) multiple active ingredients of the drug, that is, a chemical
composition, referred to as a "drug product" claim; or (3) a method
of using the drug, referred to as a "method-of-use" claim.
Starting in the 1980s, Takeda obtained several patents related to
its diabetes medicines. The first of those patents, U.S. Patent.
No. 4,687,777, claimed the compound "pioglitazone," the active
ingredient in Takeda's brand-name drug ACTOS. Takeda later
obtained two other patents -- U.S. Patent Nos. 5,965,584 and
6,329,404 -- which claimed compositions of pioglitazone combined
with other drugs. More specifically, the 584 patent claims
compositions of pioglitizaone with metformin, and methods of using
those combinations; the 404 patent claims compositions of
pioglitazone with an insulin secretion enhancer, and methods of
using those compositions.
Related cases were brought by indirect purchasers of ACTOS
("End-Payor Plaintiffs" or "EPPs"), which arises from most of the
alleged conduct in the present case. The related cases are In re
Actos End-Payor Antitrust Litig., No. 13-CV-9244 (RA), 2019 WL
4805843, at *1-4 (S.D.N.Y. Sept. 30, 2019) ("End Payor III"); In re
Actos End-Payor Antitrust Litig., 848 F.3d 89, 93-97 (2d Cir. 2017)
("End Payor II"); In re Actos End-Payor Antitrust Litig., No.
13-CV-9244 RA, 2015 WL 5610752, at *1-16 (S.D.N.Y. Sept. 22, 2015)
("End Payor I").
On July 15, 2003, Defendants Mylan, Actavis, and Ranbaxy ("first
generics") filed Abbreviated New Drug Applications ("ANDAs")
seeking FDA approval to market generic ACTOS. In response, Takeda
sued the first generics in the district, asserting that their ACTOS
ANDAs induced infringement of the claims in the '777 patent and the
Patents. Takeda's lawsuits against the first generics were
consolidated. Judge Cote, who presided over these cases, decided
to try Mylan's challenge to the '777 patent first. After a bench
trial in 2006, Judge Cote ruled that the '777 patent was not
invalid and that Mylan's ACTOS ANDA would infringe the patent.
In July 2004, Teva filed an ANDA seeking approval to market generic
ACTOS. Teva received tentative approval from the FDA for its ACTOS
ANDA in February 2006. Three years later, Takeda sued Teva,
asserting that its ACTOS ANDA would induce infringement of the '777
patent and the Patents. The lawsuit was consolidated with Takeda's
lawsuits against the first generics.
Soon after Takeda sued Teva, the FDA received a so-called citizen
petition from non-party Sandoz Inc., essentially asking it to deny
final approval of Teva's ANDA on the ground that it lacked a
Paragraph IV certification as to the Patents' drug product claims.
The FDA granted the citizen petition on March 15, 2010. The first
generics settled their lawsuits with Takeda around this time.
In August 2005, the FDA approved Takeda's New Drug Application
("NDA") for ACTOplus, which contains a combination of the active
ingredient in ACTOS, pioglitazone hydrochloride, with metformin
hydrochloride. Takeda listed the '584 patent in the Orange Book
for the ACTOplus NDA, as well as three other method-of-use
patents.
In March 2008, Mylan submitted an ANDA seeking approval to market
generic ACTOplus. Mylan made a Paragraph IV certification as to
each patent listed for the ACTOplus NDA, and Takeda accordingly
sued Mylan in August 2008. Mylan was the only first-filer for
ACTOplus and was entitled to an 180-day exclusivity period.
By early 2009, Teva submitted an ANDA for generic ACTOplus which,
unlike its ACTOS ANDA, included a Paragraph IV certification. In
response, Takeda sued Teva, asserting that its ACTOplus ANDA (as
well as its earlier-filed ACTOS ANDA, as noted) would induce
infringement of the Patents' claims.
Takeda ultimately settled its lawsuits with the first generics in
March 2010 and with Teva in December of that year. The DPPs assert
that each of these settlements constituted unreasonable restraints
of trade and were the result of a conspiracy between Takeda and the
other Defendants ("Generic Defendants") to unlawfully extend
Takeda's monopoly over the ACTOS and ACTOplus drug markets.
None of the agreements prohibited Takeda from issuing additional
licenses to generic manufacturers or from licensing an authorized
generic to manufacture generic ACTOS on its behalf. Neither the
FTC nor the Department of Justice objected to the settlements.
The DPPs allege that the March 2010 settlement agreements were "in
reality a single deal between all four companies," that constituted
a conspiracy to restrain trade and perpetuate Takeda's monopoly in
the ACTOS and ACTOplus drug markets, in violation of Sections 1 and
2 of the Sherman Act. In support of this theory, they emphasize
that the lawsuits that were settled were consolidated; the
settlements were announced within days of each other; the entry
dates for the ACTOS products were the same; while the terms of the
agreements were confidential, each permitted Takeda to share them
with other generics; and that none of the first generics would have
agreed to the later entry dates for ACTOS and ACTOplus without
knowing that their generic competitors were getting the same deal.
Teva's December 2010 settlement allegedly reflects its decision to
join the purported conspiracy, as per the Plaintiffs' complaint.
On June 4, 2015, DPPs filed a Consolidated Class Action Complaint,
asserting many of the claims currently before the District Court.
On Sept. 22, 2015, the Court issued its End-Payor I decision,
dismissing the EPPs' complaint in its entirety with prejudice. On
Nov. 12, 2015, the Court granted DPPs leave to amend the
then-operative complaint in light of End Payor I. The DPPs filed
their Second Amended Complaint on Jan. 8, 2016. On Jan. 28, 2016,
Takeda filed a motion to dismiss the DPPs' Section 2 claim against
it; Teva and Actavis filed a joint motion to dismiss for lack of
standing; and the Defendants further filed a joint motion to
dismiss the DPPs' remaining Section 1 claims and overarching
conspiracy claims under Sections 1 and 2. The DPPs filed a
consolidated opposition, to which the Defendants replied.
On May 27, 2016, in light of the appeal of End Payor I, the
District Court stayed the case pending the Second Circuit's
resolution of the appeal. After the Second Circuit issued its
decision on Feb. 8, 2017, the District Court granted DPPs' request
for leave to amend the complaint again. The DPPs filed their
request, attaching the proposed Third Amended Complaint, on April
6, 2017. The request was granted and the operative complaint was
filed on Nov. 16, 2017. The Defendants subsequently filed
supplemental memoranda of law in support of their pending Motions
to Dismiss, after which DPPs filed a consolidated opposition, and
the Defendants replied.
On Sept. 30, 2019, the District Court denied Takeda's Motion to
Dismiss the monopolization claims against it in End Payor III.
Before the Court are the Defendants' Motions to Dismiss.
Judge Abrams granted the Defendants' Motions to Dismiss Counts II
through VIII of the Complaint. The Judge denied Takeda's Motion to
Dismiss Count I.
Judge Abrams finds that DPPs' monopolization claim against Takeda,
based on Takeda's allegedly improper Orange Book listings, is
essentially identical to that asserted by the EPPs most recently in
End Payor III. The same goes for Takeda's motion to dismiss that
claim in these two related actions. For the reasons provided in
End Payor III, DPPs have plausibly alleged that Takeda's January
2010 statements to the FDA, in response to the Sandoz Citizen
Petition, constituted anti-competitive conduct. As was the case
with the EPPs, DPPs here have further plausibly alleged that the
anti-competitive conduct caused antitrust injury by delaying both
Teva's entry, and the entry of the other generics, into the ACTOS
drug market. Hence, DPPs' monopolization claim, to the extent
based on Takeda's statements to the FDA, will thus proceed.
Unlike EPPs in End Payor I, the DPPs do not predicate their
antitrust claims arising from the settlement agreements on the
reverse payment theory endorsed by FTC v. Actavis, Inc., the
District Court states. The underlying considerations articulated
in Actavis, however, are still relevant to the Court's analysis of
the DPPs' alternative theory.
Among other things, the Judge finds that (i) the EPPs did not
appeal the dismissal of their claims based on the settlement
agreements; (ii) because DPPs ultimately cannot establish that the
settlement agreements are subject to antitrust scrutiny under their
non-reverse-payment theory, their claims based on the individual
settlement agreements fail, as do their overarching conspiracy
claims; (iii) the DPPs' non-reverse-payment theory as to how the
settlement agreements constitute unreasonable restraints of trade
is truly novel: no other court, as far as this one can tell, has
ever endorsed it; (iv) he can't conclude that the DPPs'
settlement-with-knowledge-of-Orange-Book-fraud theory can subject
Paragraph IV settlements to antitrust scrutiny; and (v) the DPPs'
assertion that it follows that the first generics knew these
descriptions were false or improper is plainly speculative in the
absence of any facts to support such a theory.
Finally, Judge Abrams denied the DPPs' request for leave to amend
the Complaint is denied. Despite the fact that the DPPs have had
two prior opportunities to amend in light of the relevant decisions
in the End-Payor cases, they seek leave to amend again because
Defendants purportedly did not provide DPPs with the settlement
agreements until after the Second Amended Complaint was filed. The
District Court opines: "Be that as it may, amendment would still be
futile, because the problem with the DPPs' claims based on those
settlement agreements is substantive: "better pleading will not
cure it.""
The Clerk of Court is directed to lift the stay of the case.
A full-text copy of the District Court's Oct. 8, 2019 Opinion &
Order is available at https://is.gd/GHg2Ma from Leagle.com.
American Sales Company, LLC, on behalf of itself and all others
similarly situated, Plaintiff, represented by David S. Nalven --
davidn@hbsslaw.com -- Hagens Berman Sobol Shapiro LLP, Linda P.
Nussbaum, Nussbaum Law Group, P.C., Thomas Matthew Sobol --
tom@hbsslaw.com -- Hagens Berman Sobol Shapiro LLP, pro hac vice,
Gregory Thomas Arnold, Hagens Berman Sobol Shapiro LLP & Kristen
Anne Johnson -- kristenj@hbsslaw.com -- Hagens, Berman, Sobol,
Shapiro, LLP.
Cesar Castillo, Inc., Individually and on behalf of all those
similarly situated, Consolidated Plaintiff, represented by Bradley
J. Demuth, Nussbaum Law Group, P.C., Linda P. Nussbaum, Nussbaum
Law Group, P.C. & Thomas Matthew Sobol, Hagens Berman Sobol Shapiro
LLP.
Takeda Pharmaceutical Co. Ltd., Takeda America Holdings, Inc.,
Takeda Pharmaceuticals U.S.A., Inc. & Takeda Development Center
Americas, Inc., Defendants, represented by Adam R. Lawton --
karen.lent@skadden.com -- Munger, Tolles & Olson LLP, pro hac
vice.
Actavis PLC & Watson Laboratories, Inc., Defendants, represented by
Steven Craig Sunshine -- steve.sunshine@skadden.com
-- Skadden, Arps, Slate, Meagher & Flom LLP & Karen Hoffman Lent,
Skadden, Arps, Slate, Meagher & Flom LLP.
Ranbaxy, Inc., Ranbaxy Pharmaceuticals, Inc. & Sun Pharmaceutical
Industries Ltd., Defendants, represented by Stacey Anne Mahoney,
Morgan Lewis & Bockius, LLP.
Teva Pharmaceutical Industries, Ltd., Defendant, represented by
Katherine R. Katz -- katherine.katz@kirkland.com -- Kirkland &
Ellis LLP & Ross Lee Weiner, Kirkland & Ellis LLP.
Teva Pharmaceuticals USA, Inc., Defendant, represented by Katherine
R. Katz, Kirkland & Ellis LLP, Gregory L. Skidmore, Kirkland &
Ellis LLP, John O'Quinn -- john.oquinn@kirkland.com -- Kirkland &
Ellis LLP & Ross Lee Weiner, Kirkland & Ellis LLP.
TGI FRIDAYS: Calcano Alleges Violation under Disabilities Act
-------------------------------------------------------------
TGI Friday's Inc. is facing a class action lawsuit filed pursuant
to the Americans with Disabilities Act. The case is styled as
Marcos Calcano, on behalf of himself and all other persons
similarly situated, Plaintiff v. TGI Friday's Inc., Defendant, Case
No. 1:19-cv-10054 (S.D. N.Y., Oct. 30, 2019).
TGI Fridays is an American restaurant chain focusing on casual
dining. The company is a unit of the Sentinel Capital Partners and
TriArtisan Capital Partners, who purchased the company from Carlson
Companies in May 2014.[BN]
The Plaintiff is represented by:
Jeffrey Michael Gottlieb, Esq.
150 E. 18 St., Suite PHR
New York, NY 10003
Tel: (212) 228-9795
Fax: (212) 982-6284
Email: nyjg@aol.com
TILE SHOP: K-Bar Sues Board Over Breaches of Fiduciary Duties
-------------------------------------------------------------
K-Bar Holdings LLC, on behalf of itself and all others similarly
situated stockholders of TILE SHOP HOLDINGS, INC., and derivatively
on behalf of Nominal Defendant TILE SHOP HOLDINGS, INC. v. TILE
SHOP HOLDINGS, INC., a Delaware corporation, Nominal Defendant, and
ROBERT A. RUCKER, PETER J. JACULLO III, PETER H. KAMIN, CABELL
LOLMAUGH, TODD KRASNOW, and PHILIP B. LIVINSTON, Defendants, Case
No. 1:19-cv-09837 (Del. Ch., Nov. 5, 2019), is brought under the
Securities Exchange Act of 1934 for the Defendants' breaches of
fiduciary duties.
This case involves the Company's Board of Directors that purposely
let half of its members--including the known repeat fraudster who
founded the Company--buy a controlling stake in the Company through
open market purchases at depressed prices, without paying a fair
price much less a control premium. Instead of adopting a poison
pill or taking defensive measure to protect public stockholders in
the face of a change of control transaction, this Board helped turn
a slowly developing creeping takeover into a modern street sweep,
the Plaintiff alleges.
In late 2017, the Board abruptly replaced a skilled and effective
Chief Executive Officer with the Company's founder despite the
founder's history of prior malfeasance. Robert Rucker founded, and
together with Peter Jacullo and Peter Kamin controlled the Tile
Shop before the Company went public my merger in 2012. By that
time, Rucker had already been caught falsifying the Company's
financials in a scheme to defraud his ex-wife and the court that
oversaw his divorce proceeding. In November 2013, when Rucker was
again implicated in a fraud, concealing numerous related party
transactions Rucker was forced out of the executive suite.
When the Company announced it was going dark on October 22, 2019,
the Company's stock plummeted by 66%, to below $2 per share.
Immediately, Rucker, Jacullo, and Kamin began to rapidly purchase
the Company's stock at deflated market prices. The Board has done
and is doing nothing to prevent Rucker, Jacullo, and Kamin from
buying more stock and gaining absolute control of the Company, the
Plaintiff asserts. The Board, comprised of a majority of director
who are benefitting from the Go-Dark Scheme or are loyal to Rucker,
Jacullo, and Kamin, is actively breaking its fiduciary duties, the
Plaintiff avers.
The Plaintiff and the Class have lost the value of the share of
Company stock and will not receive any control premium for their
shares as a result of the Defendants' breaches of fiduciary duty,
says the complaint.
Plaintiff is a stockholder of the Company.
Tile Shop is a specialty retailer of manufactures and natural stone
tiles, setting and maintenance materials, and related accessories
in the United States.[BN]
The Plaintiff is represented by:
Mark Lebovitch, Esq.
Christopher J. Orrico, Esq.
BERNSTEIN LITOWITZ BERGER & GROSSMANN LLP
1251 Avenue of the Americas, 44th Floor
New York, NY 10020
Phone: (212) 554-1400
- and -
Gregory V. Varallo, Esq.
BERNSTEIN LITOWITZ BERGER & GROSSMANN LLP
500 Delaware Avenue
Wilmington, DE 19801
Phone: (302) 364-3601
- and -
Jonathan Kass, Esq.
OFFIT KURMAN P.A.
1201 North Orange Street
Wilmington, DE 19801
Phone: (302) 351-0919
TRANSOCEAN RESOURCES: Guglielmo Alleges Violation under ADA
-----------------------------------------------------------
Transocean Resources Management, Inc. is facing a class action
lawsuit filed pursuant to the Americans with Disabilities Act. The
case is styled as Joseph Guglielmo, on behalf of himself and all
others similarly situated, Plaintiff v. Transocean Resources
Management, Inc., Defendant, Case No. 1:19-cv-10093 (S.D. N.Y.,
Oct. 30, 2019).
Transocean Resources Management, Inc. provides Internet based
services.[BN]
The Plaintiff is represented by:
Russel Craig Weinrib, Esq.
Stein Saks PLLC
285 Passaic St., Suite 5
Hakensack, NJ 07601
Tel: (201) 282-6500
Email: rweinrib@steinsakslegal.com
TRANSWORLD SYSTEMS: Cinelli Alleges Wrongful Debt Collections
-------------------------------------------------------------
ANTHONY CINELLI, individually and on behalf of all others similarly
situated, Plaintiff v. TRANSWORLD SYSTEMS INC., Defendant, Case No.
2:19-cv-05651 (E.D.N.Y., Oct. 7, 2019) seeks to stop the
Defendant's unfair and unconscionable means to collect a debt.
Transworld Systems Inc. provides receivables collection and
management services. [BN]
The Plaintiff is represented by:
Craig B. Sanders, Esq.
BARSHAY SANDERS, PLLC
100 Garden City Plaza, Suite 500
Garden City, NY 11530
Telephone: (516) 203-7600
Facsimile: (516) 706-5055
E-mail: csanders@barshaysanders.com
TRISTAR PRODUCTS: 6th Cir. Upholds Denial of Ariz. AG Intervention
------------------------------------------------------------------
The United States Court of Appeals for the Sixth Circuit issued an
Opinion affirming the district court's judgment denying the Arizona
Attorney General's Motion to Intervene in the case captioned
KENNETH CHAPMAN, JESSICA VENNEL, JASON JACKSON, and EDWINA PINON,
on behalf of themselves and all others similarly situated,
Plaintiffs-Appellees, v. TRISTAR PRODUCTS, INC.,
Defendant-Appellee, STATE OF ARIZONA and ARIZONA ATTORNEY GENERAL,
Proposed Intervenors-Appellants, Case Nos. 18-3847/3866, (6th
Cir.).
Plaintiffs brought the class action alleging that certain pressure
cookers that Defendant Tristar Products, Inc. manufactures had
defective lids. Allegedly, the lids could come open while the
cookers were in use, which exposed the user to possible injury from
the hot, pressurized contents of the cooker spilling out onto the
user.
The Arizona Attorney General believes the plaintiff class got a bad
deal in settling the products liability lawsuit over allegedly
defective pressure cookers. The settlement agreement, entered after
one day of trial, included an award of approximately $2 million in
fees and expenses for class counsel, and substantially less than
that primarily in the form of coupons for the class members. The
Attorney General, on behalf of his office and the State of Arizona
objected in the district court to the terms of the settlement,
arguing that it was lopsided and should be rejected.
The district court denied the motion on the ground that Arizona did
not have Article III standing to intervene and then approved the
settlement.
Arizona moved to intervene either permissively or as of right under
Rule 24. Intervenors must establish Article III standing if they
wish to appeal the outcome of a lawsuit.
To demonstrate standing, Arizona offers three theories of injury.
Arizona argues that it has standing (1) under the doctrine of
parens patriae; (2) under Section 1715 of the Class Action Fairness
Act, 28 U.S.C. Section 1715; and (3) because it has a participatory
interest as a repeat player. Each basis was rejected by the
district court's ruling, which the Sixth Circuit reviewed de novo.
Standing under Parens Patriae
Parens patriae, which literally means parent of the country, began
as a common-law doctrine that allowed the sovereign to assume legal
responsibility including the right to sue or defend suits over
those who are legally incapable of protecting their own rights.
The modern doctrine, however, is not nearly so broad. To assert
standing under parens patriae today, a State must assert an injury
to what has been characterized as a quasi-sovereign interest.
Arizona argues that it satisfies parens patriae because it is
acting on behalf of its citizens, the members of the nationwide
settlement class who are Arizona citizens and that it has attempted
to address this type of settlement which it argues is unfair
through legislation.
The Sixth Circuit notes that in the present case, the only injury
alleged is injury to an identifiable group of Arizonans, class
members in the instant litigation and Arizona has not fleshed out
the indirect effects of this alleged injury on Arizona as a whole.
Therefore, Arizona has not shown any imperiled quasi-sovereign
interests and does not have standing under parens patriae, the
Sixth Circuit opines.
Standing under CAFA
Arizona also argues that it has standing under the Class Action
Fairness Act (CAFA). But CAFA does not create a right of action for
state attorneys general, thus, the Court need not consider here the
reach of the principle that Congress may elevate to the status of
legally cognizable injuries concrete, de facto injuries that were
previously inadequate in law, the Sixth Circuit states.
Standing under Participatory Interests
Finally, Arizona asserts that it has standing because it has
participated regularly in class action settlement proceedings to
protect Arizona consumers and ensure statutory compliance. Arizona
cites Michigan State AFL-CIO v. Miller, 103 F.3d 1240 (6th Cir.
1997) to support the proposition that being a repeat player in
class action settlements gives Arizona standing in this case.
Arizona's reliance on Miller is inapposite, the Sixth Circuit
opines.
Harm to Arizona's participatory interests is not an injury in fact
sufficient to create standing under Article III, the Sixth Circuit
holds.
The Sixth Circuit recaps that Arizona's arguments concerning parens
patriae, CAFA, and participatory interests fail and thus, Arizona
has not met its burden to demonstrate standing. "Because Arizona
has no standing to bring this appeal, we are barred by Article III
from determining the merits of Arizona's appeal. We therefore
DISMISS this appeal for want of jurisdiction," the Sixth Circuit
rules.
A full-text copy of the Sixth Circuit's October 10, 2019 Opinion is
available at https://tinyurl.com/y2wapctn from Leagle.com
ARGUED: Oramel H. (O.H.) Skinner, OFFICE OF THE ARIZONA ATTORNEY
GENERAL, Phoenix, Arizona, for Appellants.
Gregory F. Coleman - greg@gregcolemanlaw.com - GREG COLEMAN LAW PC,
Knoxville, Tennessee, for Class Appellees.
Stephen R. Robinson, 309 W Pennsylvania Ave., Towson, MD 21204,
TRISTAR PRODUCTS, INC., Wyomissing, Pennsylvania, for Appellee
Tristar.
James Burnham , UNITED STATES DEPARTMENT OF JUSTICE, Washington,
D.C., for Federal Amicus Curiae.
ON BRIEF: Oramel H. (O.H.) Skinner , Drew C. Ensign , OFFICE OF THE
ARIZONA ATTORNEY GENERAL, Phoenix, Arizona, for Appellants.
Gregory F. Coleman , Adam A. Edwards - adam@gregcolemanlaw.com -
Mark E. Silvey , GREG COLEMAN LAW PC, 800 S. Gay Street, Suite
1100, Knoxville, TN 37929, Drew Legando , LANDSKRONER GRIECO
MERRIMAN, LLC, 1360 W. 9th St. #200, Cleveland, OH 44113, for
Class Appellees.
Stephen R. Robinson , TRISTAR PRODUCTS, INC., Wyomissing,
Pennsylvania, for Appellee Tristar.
James Burnham , Kendrack D. Lewis , UNITED STATES DEPARTMENT OF
JUSTICE, Washington, D.C., for Federal Amicus Curiae.
Theodore H. Frank - ted.frank@hlli.org - HAMILTON LINCOLN LAW
INSTITUTE, Washington, D.C., for Amicus Curiae.
TWITTER INC: Faces Shenwick Suit over Drop in Share Price
---------------------------------------------------------
DORIS SHENWICK, as trustee for the DORIS SHENWICK TRUST,
individually and on behalf of all others similarly situated,
Plaintiff v. TWITTER, INC., Defendants, Case No. 3:16-cv-05314-JST
(N.D. Cal., Oct. 8, 2019) is a securities class action on behalf of
all persons who purchased or otherwise acquired Twitter common
stock between February 6, 2015 and July 28, 2015, inclusive,
against Twitter and certain of its officers and directors for
violations of the Securities Exchange Act of 1934. These claims are
asserted against Twitter and certain of its officers and directors
who made materially false and misleading statements during the
Class Period in press releases and filings with the SEC and in oral
statements to the media, securities analysts and investors.
Immediately prior to the Class Period, the Defendants faced a
dilemma regarding the disclosure of Twitter's two most closely
tracked metrics: Monthly Active Users -- "MAU," a measure of the
total number of users on the Twitter platform -- and Timeline Views
-- a measure of "user engagement, "i.e., how frequently MAUs
interacted with the Twitter platform. Both metrics, and in
particular the growth of the metrics, were closely tracked by
analysts and investors.
On April 28, 2015, the Company issued an earnings press release for
the first quarter of 2015 and held a conference call with analysts.
The earnings press release stated: "Twitter Reports First Quarter
2015 Results; Lowers Full-Year 2015 Expectations." On the earnings
call, defendant Noto stated: "[O]ur visibility is actually limited
as it relates to Q2 MAU ads. . . . [T]he visibility is not as
strong as it was in Q1 and the trend is not similar to Q1."
As a direct result of the disclosures on April 28, 2015, Twitter's
stock price suffered a significant decline. On April 28, 2015, the
price of Twitter stock plunged $9.39 per share, to close at $42.27
per share -- a decline of 18% on volume of 77 million shares. On
the following trading day, April 29, 2015, the price of Twitter
stock dropped again, by 9% or $3.78 per share, closing at $38.49
per share on volume of more than 120 million shares.
On July 28, 2015, after the market closed, the Company issued an
earnings press release for the second quarter of 2015 and held a
conference call with analysts. On the earnings call, the Defendants
revealed that MAU growth was stagnant and that no growth was
expected for a considerable period of time; user engagement was
declining; new MAUs were lower quality and less engaged than
existing users; new initiatives were not effective at driving MAU
growth or engagement; and the Company faced advertising revenue
constraints as result of stagnant user engagement and MAU growth.
The disclosures on July 28, 2015, also had a direct impact on
Twitter's stock price. The price of Twitter stock fell $5.30 per
share, to close at $31.24 per share on July 29, 2015, a one-day
decline of nearly 15% on volume of nearly 93 million shares.
Commentators, including securities analysts, linked this decline to
investors' concern about adverse trends in user engagement and MAU
growth.
Twitter's stock price continued to fall on high trading volumes in
the days following the Defendants' July 28, 2015 announcement as
the market absorbed the news, dropping another 13% to $27.04 by
August 7, 2015.
The declines in Twitter's stock price on April 28-29, 2015 and July
29, 2015, were a direct result of the nature and extent of
Defendants' prior misstatements and omissions being revealed to
investors and the market. The timing and magnitude of Twitter's
stock price declines negates any inference that the losses suffered
by the Plaintiff's funds and other Class members were caused by
changed market conditions, macroeconomic or industry factors, or by
Company-specific factors unrelated to the Defendants'
misrepresentations.
Twitter, Inc. provides online social networking and microblogging
service. The Company offers users the ability to follow other users
activity, read, and post tweets. Twitter serves customers
worldwide. [BN]
The Plaintiff is represented by:
Lesley E. Weaver, Esq.
BLEICHMAR FONTI & AULD LLP
1999 Harrison Street, Suite 670
Oakland, CA 94612
Telephone: (415) 445-4003
Facsimile: (415) 445-4020
- and -
Gregg S. Levin, Esq.
MOTLEY RICE LLC
28 Bridgeside Blvd.
Mt. Pleasant, SC 29464
Telephone: (843) 216-9000
Facsimile: (843) 216-9450
- and -
Daniel S. Drosman, Esq.
Susannah R. Conn, Esq.
ROBBINS GELLER RUDMAN & DOWD LLP
655 West Broadway, Suite 1900
San Diego, CA 92101-8498
Telephone: (619) 231-1058
Facsimile: (619) 231-7423
UBER TECHNOLOGIES: Underpays Drivers, Colopy Suit Alleges
---------------------------------------------------------
THOMAS COLOPY, individually and on behalf of all others similarly
situated, Plaintiff v. UBER TECHNOLOGIES, INC, Defendant, Case No.
3:19-cv-06462 (N.D. Cal., Oct. 8, 2019) is an action against the
Defendant's failure to pay the Plaintiff and the class overtime
compensation for hours worked in excess of 40 hours per week.
The Plaintiff Colopy was employed by the Defendant as driver.
Uber Technologies, Inc. provides ride hailing services. The Company
develops applications for road transportation, navigation, ride
sharing, and payment processing solutions. Uber Technologies serves
customers worldwide. [BN]
The Plaintiff is represented by:
Shannon Liss-Riordan, Esq.
Anne Kramer, Esq.
LICHTEN & LISS-RIORDAN, P.C.
729 Boylston Street, Suite 2000
Boston, MA 02116
Telephone: (617) 994-5800
Email: sliss@llrlaw.com
akramer@llrlaw.com
VERMONT: DOC May Face Class Action Over Halal Food Access
---------------------------------------------------------
Alan J. Keays, writing for VT Digger, reports that a Muslim inmate
suing top Department of Corrections officials over claims that
prison food does not meet his religious dietary needs is pressing
ahead to make his lawsuit a class action.
Justin Russell has been engaged in a long-running battle in federal
court in Vermont with the corrections department over access to
halal food for nearly four years.
Now, Russell, through his attorney David Bond, is making a push to
add other Muslim inmates to the lawsuit. Russell is currently
incarcerated at Northwest State Correctional Facility in Swanton.
Bond said previous attempts to make the case a class action have
failed due to the lack of proof of other inmates who would likely
join the lawsuit. However, Bond said, when he went to the Swanton
facility he found several willing to join the case.
Six inmates signed affidavits saying they would like to be added to
the case, he said on Oct. 15.
Michael Touchette, Vermont's corrections commissioner, named as a
defendant in the lawsuit, declined to comment on the matter. He
said the department does not comment on pending litigation.
While there is no set number for a case to proceed as a class
action, Bond said, typically that number hovers around 40 for
federal courts in the district circuit that includes Vermont. He
said he expected he could easily meet that number based on the six
who signed affidavits in just one Vermont prison facility.
"(Russell) has reached out to his fellow Muslim brothers in DOC
custody with a message of hope that this litigation will someday
help bring an end to the denial of free exercise and equal
protection rights that Muslim inmates are subjected to within the
custody of Vermont DOC," Bond wrote of his client in a recent
filing. "He cares deeply about the issues presented."
Russell, in his civil rights lawsuit, claims that corrections
officials are violating his constitutional right stemming from a
policy that provides Muslim inmates with prepackaged kosher meals
instead of halal meals.
"One of the fundamental tenets of Islam is the consumption of a
Halal diet. 'Halal' simply means permissible according to the
Quran. Food that is not Halal is 'Haram,' or forbidden," the
lawsuit stated.
"Although there are many considerations that come into play in
determining whether food is Halal or Haram, the Quran absolutely
prohibits the consumption of pork, blood, or alcohol," according to
the lawsuit. "In addition, all meat and meat by-products must come
from ritually slaughtered animals."
While kosher dietary restrictions are similar to halal, they are
not the same, the lawsuit stated.
"Alcohol may be permissible in certain forms to persons keeping
Kosher. However it is never anything but Haram to Muslims,"
according to the lawsuit. "Likewise, the slaughter of animals is
performed according to different rituals, and by adherents of a
different faith."
The corrections department, the lawsuit stated, switched on a
"system-wide basis" to prepackaged "kosher/halal" meals in late
2014 and early 2015.
"They're taking the position that kosher is interchangeable with
halal," Bond said of the corrections department, "which is contrary
to our position."
In the lawsuit, Russell is seeking an injunction ordering the
department to rollback that switch and go back to how halal meals
were handled prior to late 2014 by preparing them on site using
halal ingredients.
Russell and those other inmates willing to join the lawsuit, Bond
said, are now eating food they believe is not halal and are praying
for forgiveness.
Also, Bond said, when he went to the correctional facility in
Swanton he discovered that the corrections department was no longer
serving the prepackaged "kosher/halal" meals there.
"All they're doing now is saying there is no pork in the food so
it's halal, which is completely wrong," he said. "So we're going to
try to turn it into a class action."
At a hearing in the case on Oct. 16, the parties argued whether an
expert witness, an imam, who supports the state's position should
be allowed to testify if the case goes to trial.
Magistrate Judge John Conroy took the matter under advisement and
said he would "promptly" issue a written ruling.
Conroy did ask several questions during the hearing.
"Wouldn't the fact that some members of the plaintiff's religious
community hold a contrary interpretation of Islamic dietary
requirements be at least relevant to the sincerity of the
plaintiff's religious beliefs," Conroy said to Bond.
Bond responded that according to past case law it comes down to
what his client believes.
"Ultimately, you could have a religion of one," Bond told Conroy.
"We're not in that position by any means. There's millions of
people who hold similar beliefs to Mr. Russell."
Tabitha Bono is an attorney for Trinity Services Group and argued
in support of allowing the testimony of the imam.
Assistant Attorney General David McLean, who also attended the
hearing on Oct. 16, told the judge during the proceeding that the
state has a contract with the Florida-based Trinity Services Group
"for designing religious meals."
Bono told Conroy that the case centers on whether Russell's
religious belief is a "sincere" religious belief.
Bono then talked about a deposition that was taken earlier of
Russell. "He was asked where in the Quran he gets his beliefs,"
Bono said of Russell. And she said, "He did not know."
Bond, speaking later in the hearing, went back to that point.
"Mr. Russell was asked where in the Quran do find your beliefs,"
Bond told the judge. "If I were challenged, where in the Bible did
I find my beliefs, I'd very hard pressed to be able to cite chapter
and verse."
Bond added, "It's a big book, as is the Quran."
Asked after the hearing how much in damages he is seeking for his
client and others, Bond said that hasn't been determined. "I
haven't attempted to sort out how we might present that to a jury
yet," he said.
Russell, according to court filing, has served time in a variety of
different correctional facilities in Vermont. He also had been
released for a period as the lawsuit has remained pending, but has
since been reincarcerated.
According to the state's online prisoner locator, Russell is
currently being held without bail on an aggravated assault charge.
He has pleaded not guilty to the charges against him and is
awaiting trial. [GN]
VICTOR'S CAFE: $$72K Attorneys' Fees Awarded in Espinal FLSA Suit
-----------------------------------------------------------------
In the case, DIONNY ESPINAL, on behalf of himself, individually,
and on behalf of all others similarly-situated, Plaintiff, v.
VICTOR'S CAFE 52nd STREET, INC., and SONIA ZALDIVAR, individually,
and CHRISTIAN BETERE, individually, Defendants, Case No. 16-CV-8057
(VEC) (S.D. N.Y.), Judge Valerie Caproni of the U.S. District Court
for the Southern District of New York granted in part and denied in
part the Plaintiffs' Motion for Attorneys' Fees and Expenses.
On Oct. 14, 2016, Named Plaintiff Espinal filed the action against
the Defendants alleging violations of the Fair Labor Standards Act
("FLSA"), and New York Labor Law ("NYLL"). The Plaintiffs worked
as bussers and/or food runners and asserted claims against the
Defendant, a Manhattan restaurant, for unpaid minimum and overtime
wages as well as other NYLL statutory damages. After two mediation
sessions and additional negotiations, the Parties reached an
agreement in principle on July 19, 2018.
The Parties ultimately agreed to settle the action on a class-wide
basis for the maximum amount of $345,000. The Net Settlement
Amount is $193,676.02, representing the Gross Settlement Fund less
Attorneys' Fees and Costs, the Plaintiffs' Service Awards, and the
Claim Administrator Fees and Costs. According to the Settlement
Agreement, the 36 participating Class Members will receive an
initial distribution of $53,058.78, in proportion to their claims,
followed by a second distribution of $47,461.96. The remainder of
the Net Settlement Amount will be distributed evenly between the
National Employment Law Project, a cy pres designee, and the
Defendants. By Order dated Oct. 23, 2019, the Court approved the
parties' Settlement Agreement, excluding the attorneys' fees and
costs provisions, as fair and adequate under Federal Rule of Civil
Procedure 23(e).
The Plaintiffs moved for approval of $115,000 in attorneys' fees
and $1,523.98 in costs.
First, the Court determines a baseline reasonable fee percentage in
relation to the settlement, using common fund settlements of
similar magnitude and complexity as guidance. Next, the Court
considers the remaining Goldberger factors, namely the risk to
Class Counsel, the quality of representation, and other public
policy concerns to determine the precise percentage of the
settlement fund to award. Lastly, it applies the lodestar method
as a cross-check, considering the amount of time reasonably spent
by the Class Counsel and the hourly rate charged.
After examining cases of similar size and complexity and reviewing
the extensive empirical data analyzing fee percentages awarded in
this Circuit, Judge Caproni finds that the 33.33% requested by the
Plaintiffs is an unreasonably high percentage of the settlement
fund. Based on the extensive empirical evidence indicating that
the average fee percentage in labor and employment cases is between
27% and 28% and the average percentage of fees awarded in the
Circuit is 26.9%, even for a complex FLSA case, a reasonable
percentage is still far below the 33.33% requested by the
Plaintiffs. After considering the requested fee in relation to the
settlement and the complexity vel non of the case in light of the
empirical data, the Judge finds a reasonable baseline percentage in
the case to be 25% of the Gross Settlement Fund, or $86,250.
The baseline fee percentage award, in the case 25% of the Gross
Settlement Fund, may be increased or decreased based on a
consideration of the remaining Goldberger factors--the risk of
litigation, the quality of representation, and any remaining policy
considerations.
The Class Counsel asks one third of the gross settlement amount,
totaling $115,000. The requested amount is 115% of the amount that
will ultimately be distributed to the class members. After
consideration of the empirical evidence and Goldberger factors, the
Judge finds a reasonable baseline percentage fee to be 25. In
order to appropriately account for the significant policy
considerations against reversionary settlements, a further decrease
of 4% of the baseline percentage is appropriate. The decrease
reflects the Court's obligation to award a fee percentage based on
scrutiny of the unique circumstances of each case as well as its
responsibility to jealously protect the "rights of those who are
interested in the fund."
The $72,450 fee award calculated under the percentage of the fund
method is reasonable even though it is slightly below the lodestar,
rules the Court. It is the case because the lodestar is inflated
by at least 20%. Reducing the reported lodestar by 20%, the fee
awarded is 1.14 times the lodestar, which is a reasonable multiple
in the case.
Finally, the Class Counsel also seeks reimbursement of $1,523.98 in
litigation expenses. The Class Counsel's expenses include costs
for filing fees, service, mailing of notices, travel, postage and
PACER fees. The Counsel is entitled to reimbursement of reasonable
litigation expenses from the settlement fund when the expenses are
necessary and were directly related to the results achieved. The
Judge finds the Class Counsel's expenses to be reasonable and
accordingly grants the Plaintiffs' motion for costs.
For the foregoing reasons, Judge Caproni granted in part and denied
in part the Plaintiffs' Motion for fees and costs. The Class
Counsel is hereby awarded attorneys' fees of $72,450 and
reimbursement of expenses in the sum of $1,523.98. The Clerk of
Court is respectfully directed to close the motion at Docket No.
81.
A full-text copy of the Court's Oct. 23, 2019 Opinion & Order is
available at https://is.gd/VKGdP7 from Leagle.com.
Dionny Espinal, on behalf of himself, individually, and on behalf
on all others similarly-situated, Juan Soriano & Cesar Palacios,
Plaintiffs, represented by Alexander Todd Coleman --
atc@employmentlawyernewyork.com -- Borrelli & Associates, P.L.L.C.,
Michael John Borrelli -- mrm@employmentlawyernewyork.com --
Borrelli & Associates, P.L.L.C. & Michael R. Minkoff, Borrelli &
Associates, P.L.L.C.
Francisco A Espinal, Plaintiff, represented by Michael John
Borrelli, Borrelli & Associates, P.L.L.C.
Eduardo Garcia, Plaintiff, represented by Michael R. Minkoff,
Borrelli & Associates, P.L.L.C.
Victor's Cafe 52nd Street, Inc., Sonia Zaldivar, individually &
Christian Betere, individually, Defendants, represented by Danielle
E. Gonnella -- gonnellad@gtlaw.com -- Greenberg Traurig, LLP &
Jonathan L. Sulds -- suldsj@gtlaw.com -- Greenberg Traurig, LLP.
WERNER ENTERPRISES: 8th Cir. Vacates $779K Award in Petrone Suit
----------------------------------------------------------------
The United States Court of Appeals for the Eighth Circuit issued an
Opinion vacating a district court judgment in case captioned Philip
Petrone, on behalf of themselves and all those similarly situated;
Stewart Fisher, on behalf of themselves and all those similarly
situated; Jasbir Singh, on behalf of themselves and all those
similarly situated; Brian Pankz, on behalf of themselves and all
those similarly situated; Jason Dewayne Gunn; Ahmad Abdinasir; Adam
F. Akhalu; Latoshia Denise Anderson; Derek C. Anglero; Alan Blane
Arthur; Christopher Ayala; Timothy McCabe Bailey; Csaba G. Barabas,
Plaintiffs-Appellants, v. Werner Enterprises, Inc., doing business
as Werner Trucking; Drivers Management, LLC, Defendants-Appellees.
Nos. 18-1574, 18-1647, 18-2116. (8th Cir.)
Plaintiffs filed a class action against Werner Enterprises, Inc.
and Drivers Management, LLC arising out of an eight-week
student-driver training program operated by Defendants and intended
for new truck drivers. Plaintiffs alleged violations of the Fair
Labor Standards Act (FLSA) and Nebraska law, and sought
compensation for unpaid wages allegedly earned during off-duty time
spent on short rest breaks and while resting in their trucks'
sleeper berths.
Following a three-day trial, the jury awarded Plaintiffs
$779,127.00 in damages for their short-rest-break claims and found
Defendants not liable on Plaintiffs' sleeper-berth claims. After
trial, the district court awarded Plaintiffs a reduced amount of
liquidated damages under the FLSA and a reduced amount of
attorney's fees, nontaxable costs, and expenses; refused to award
Plaintiffs certain taxable costs due to their failure to comply
with a local rule; and awarded costs to Defendants on the
sleeper-berth claims as the prevailing party.
Plaintiffs appealed the district court's post-trial rulings, and
Defendants cross-appealed the court's pre-trial ruling.
On review, the Eighth Circuit agrees with the district court that
Plaintiffs did not show good cause to modify and extend the Rule
16(b) deadline on disclosure of expert reports. Although
Plaintiffs' motion framed the revised expert report as a mere
supplement under Rule 26(e), Plaintiffs' expert was materially
altering, not merely clarifying his original report and there is no
evidence that Plaintiffs subsequently learned of information that
was previously unknown or unavailable to them. Plaintiffs thus
failed to show the requisite good cause to extend the expert
disclosure deadline, the Eighth Circuit states.
Nevertheless, relying on Rules 1 and 37(c)(1), the district court
modified the schedule, extended the deadline to disclose expert
reports. This was error, the Eighth Circuit opines. Nothing in the
text of either rule allowed the district court to bypass the
mandatory good-cause standard under Rule 16(b)(4).
Additionally, Rule 37(c)(1) was unavailable to the district court,
the Eighth Circuit states. The disclosure mandates in Rule 26 are
given teeth by the threat of sanctions in Rule 37. To the contrary,
by their motion for extension of the disclosure deadline,
Plaintiffs sought to bring their disclosure of the new report into
compliance with Rule 26(a) so that the disclosed information would
not be excluded under the terms of Rule 37(c)(1) at a later hearing
or trial, nor would Plaintiffs be subject to other sanctions when
use of the information was attempted.
The dissent's statement that Rule 37(c)(1) addresses what to do if
a party fails to provide information as required by Rule 26(a) is
incomplete. Rule 37(c)(1) addresses what to do if a party fails to
disclose information as required by Rule 26(a) and attempts to use
that information on a motion at a hearing, or at a trial.
Accordingly, the district court, having found no good cause for
extension of the Rule 16(b) disclosure deadline to permit the late
disclosure of Plaintiffs' new expert report, abused its discretion
in granting Plaintiffs' motion to modify the progression order and
to allow disclosure of the new expert report after the
court-imposed deadline, the Eighth Circuit holds.
Notwithstanding the district court's error, the Eighth Circuit will
affirm unless Defendants can show the error was not harmless.
Defendants moved to exclude all of Plaintiffs' expert's damages
calculations and testimony, which the district court denied,
without prejudice, when it modified the progression order and
allowed Plaintiffs to file the late report. The court found that
the information in the report was useful and necessary to the
disposition of the case on the merits. The jury awarded $779,127.00
in damages on Plaintiffs' short-rest-break claims, an amount
identical to Plaintiffs' expert's testimony at trial.
The jury clearly relied on Plaintiffs' expert's opinion in reaching
its $779,127.00 damages award. The Eighth cannot say that its award
would have been the same without the new information and,
therefore, the district court's error was not harmless.
The Eighth Circuit vacates the district court judgment and remands
the case to the district court for proceedings consistent with its
opinion. Because the Eighth Circuit vacates the judgment, the
Eighth Circuit need not address the remaining arguments in
Defendants' cross-appeal and in Plaintiffs' appeal.
A full-text copy of the Eighth Circuit's October 10, 2019 Opinion
is available at https://tinyurl.com/y63oqdq3 from Leagle.com
Patrick Joseph Barrett , Fraser Stryker PC LLO, 409 S 17th St.,
#500, Omaha, NE 68102, for Defendant-Appellee.
Joseph Edward Jones , 34004 Alameda Drive, Sorrento, Florida 32776,
for Defendant-Appellee.
Elizabeth A. Culhane , Fraser Stryker PC LLO, 409 S 17th St., #500,
Omaha, NE 68102, for Defendant-Appellee.
Justin L. Swidler - jswidler@swartz-legal.com - for
Plaintiff-Appellant.
Richard S. Swartz - rswartz@swartz-legal.com - for
Plaintiff-Appellant.
Joshua S. Boyette - jboyette@swartz-legal.com - for
Plaintiff-Appellant.
Joseph L. Messa, Jr. , 123 South 22nd Street, Philadelphia, PA
19103, for Plaintiff-Appellant.
Thomas N. Sweeney , 123 South 22nd Street, Philadelphia, PA 19103,
for Plaintiff-Appellant.
WEWORK COMPANIES: Osborne Sues Over Unlawful Use of Biometric Data
------------------------------------------------------------------
Elliott Osborne, individually, and on behalf of all others
similarly situated v. WEWORK COMPANIES, INC.; WEWORK CONSTRUCTION
LLC; WW 210 N GREEN LLC d/b/a WEWORK; 332 S MICHIGAN TENANT LLC
d/b/a WEWORK GRANT PARK; WW 111 WEST ILLINOIS LLC d/b/a WEWORK
RIVER NORTH; 20 W KINZIE TENANT LLC d/b/a WEWORK4; 100 S STATE
STREET TENANT LLC d/b/a WEWORK5; 125 S CLARK STREET TENANT LLC
d/b/a WEWORK6; 222 S RIVERSIDE PLAZA TENANT LLC d/b/a WEWORK8; 3310
NORTH WABASH TENANT LLC d/b/a WEWORK9; 515 N STATE STREET TENANT
d/b/a WEWORK10; 1 SOUTH DEARBORN STREET TENANT LLC d/b/a WEWORK11;
625 WEST ADAMS STREET TENANT LLC, Case No. 2019CH12856 (Ill. Cir.,
Cook Cty., Nov. 5, 2019), is brought against the Defendants, its
subsidiaries and affiliates, to redress and curtail their unlawful
collection, use, storage, and disclosure of the Plaintiff's
sensitive biometric data.
The individuals entering the Defendants' office spaces are required
to provide their facial geometry via a photograph or facial
geometry scan so that the Defendant can track their movement in and
out of the office. Unlike ID badges or time cards--which can be
changed or replaced if stolen or compromised--facial geometry
features are unique, permanent biometric identifiers associated
with each individual. This exposes the individuals to serious and
irreversible privacy risks. Recognizing the need to protect its
citizens from such situation, Illinois enacted the Biometric
Information Privacy Act, specifically to regulate companies that
collect and store Illinois citizens' biometrics, such as facial
features.
Notwithstanding the clear and unequivocal requirements of the law,
the Defendants disregard individuals' statutorily protected privacy
rights and unlawfully collect, store, disseminate, and use their
employees' biometric data in violation of BIPA, the Plaintiff
alleges. Specifically, the Defendants has violated and continues to
violate BIPA because it did not and continues not to: properly
inform the Plaintiff in writing of the specific purpose and length
of time for which their fingerprints were being collected, stored,
and used, as required by BIPA; publish a publicly available
retention schedule and guidelines for permanently destroying the
Plaintiff's fingerprints, as required by BIPA; receive a written
release from the Plaintiff to collect, store, or otherwise use
their fingerprints, as required by BIPA; and obtain consent from
Plaintiff to disclose, redisclose, or otherwise disseminate their
fingerprints to a third party as required by BIPA, says the
complaint.
Elliott Osborne is a natural person and a citizen of the State of
Illinois.
WeWork is a commercial real estate company that rents shared
workspaces and short-term offices to startup, freelancers and,
global corporations including Amazon, Facebook, Bank of America and
Starbucks.[BN]
The Plaintiff is represented by:
Ryan F. Stephan, Esq.
James B. Zouras, Esq.
STEPHAN ZOURAS, LLP
100 N. Riverside Plaza, Suite 2150
Chicago, IL 60606
Phone: (312) 233-1550
Fax: (312) 233-1560
Email: rstephan@stephanzouras.com
jzouras@stephanzouras.com
WINGSTOP INC: Camacho Files ADA Suit in E.D. New York
-----------------------------------------------------
A class action lawsuit has been filed against Wingstop Inc. The
case is styled as Jason Camacho and on behalf of all other persons
similarly situated, Plaintiff v. Wingstop Inc., Defendant, Case No.
1:19-cv-06161 (E.D.N.Y., Oct. 31, 2019).
The Plaintiff filed the case under the Americans with Disabilities
Act.
Wingstop Inc. is a chain of nostalgic, aviation-themed restaurants
specializing in chicken wings. Wingstop locations are decorated
following a 1930s and 1940s "pre-jet" aviation theme.[BN]
The Plaintiff is represented by:
Darryn G Solotoff, Esq.
Law Office of Darryn G Solotoff PLLC
100 Quentin Roosevelt Boulevard, Ste 280
Garden City, NY 11530
Phone: (516) 317-2453
Fax: (516) 706-4692
Email: ds@lawsolo.net
WONDERFUL CO: Bid to Compel Arbitration in Calzadillas Case Gets OK
-------------------------------------------------------------------
In the case, SALVADOR CALZADILLAS, on behalf of himself and others
similarly situated, Plaintiffs, v. THE WONDERFUL COMPANY, LLC,
Defendant, Case No. 1:19-cv-00172-DAD-JLT (E.D. Cal.), Judge Dale
A. Drozd of the U.S. District Court for the Eastern District of
California (i) granted the Defendant's motion to compel
arbitration; and (ii) denied the Plaintiffs' request for leave to
amend.
The Plaintiffs commenced the action by filing a class action
complaint on Feb. 7, 2019. The Plaintiffs are seasonal
agricultural workers within the meaning of the Agricultural Worker
Protection Act ("AWPA"). They are, and have been throughout the
relevant period, non-exempt employees within the meaning of
California Labor Code Section 500 et seq. and the rules and
regulations of California Industrial Welfare Commission Wage Order
No. 14-2001 ("IWC Wage Order 14").
The Defendant is the world's largest grower of tree nuts and
America's largest citrus grower. The Plaintiffs are employed to
work in the Defendant's fields, and are either employed directly or
through various Farm Labor Contractors ("FLCs").
Under the parties' working arrangement, the Defendant is required
to pay the Plaintiffs their agreed-upon wages for all hours worked,
to pay workers for required rest periods, to provide meal periods,
and to abide in all respects with IWC Wage Order 14. The complaint
alleges, however, that the Plaintiffs have not been compensated by
the Defendant for all time worked. The Defendant also failed to
provide the Plaintiffs with meal periods as required under
California law and failed to issue itemized wage statements
accurately reflecting all of the hours and rates worked by the
Plaintiffs. Based on these allegations, the Plaintiffs assert a
total of 11 causes of action, alleging violations of both state and
federal law.
As noted, on April 5, 2019, the Defendant moved to compel
arbitration and to stay or dismiss the action. As also noted, on
April 17, 2019, the Plaintiffs filed an ex parte application for an
order permitting them to conduct discovery and an order continuing
the hearing date on the Defendant's motion. On April 23, 2019, the
Plaintiff filed an opposition to the Defendant's motion.
The Court's prior order of June 3, 2019, has already addressed most
of the contentions raised in the parties' first round of briefing.
The only question that remains unanswered is whether the Defendant
is an intended third-party beneficiary of the "Mutual Agreement to
Arbitrate Disputes." If so, the Defendant possesses standing to
enforce that agreement, and arbitration of the Plaintiffs' claims
is required.
In the Court's prior order, the Defendant has already produced one
piece of evidence tending to establish that it is a third-party
beneficiary of the Agreement. The arbitration provision in the
Agreement was signed by the Plaintiff. The Plaintiffs were given
the opportunity to conduct discovery in order to gather their own
evidence in an attempt to demonstrate that the Defendant is not a
third-party beneficiary of the Agreement. However, the Plaintiffs
in their supplemental briefing point to nothing that would call the
Defendant's evidence into question. Instead, they merely state
that the Defendant has failed to set forth any evidence showing
that it is a third-party beneficiary of the arbitration agreement
signed by and between the Plaintiff and Lexus FLC on Nov. 1, 2016.
Judge Drozd holds that the Plaintiffs are mistaken. Because the
Plaintiffs have produced no evidence inconsistent with or contrary
to that evidence presented by the Defendant, the Judge must
conclude that the Defendant has satisfied its burden of
establishing that it is a third-party beneficiary to the Agreement
and therefore has standing to enforce it.
The Plaintiffs argue, in the alternative, that the arbitration
provision should be set aside for fraud in the execution. The
argument was not raised in their initial opposition to the
Defendant's motion to compel arbitration. Because it has only been
raised in supplemental briefing, the argument is waived and the
Judge declines to consider it.
The Plaintiffs also request leave to amend in order to substitute
another class representative as the named Plaintiff. On the record
before the Court, the Judge finds both bad faith by the Plaintiffs
and unfair prejudice to the Defendant. Finding both bad faith and
unfair prejudice, he declines to grant leave to amend in the case.
Finally, the Judge must decide whether to stay the action or
dismiss it. Because all of the Plaintiffs' claims are subject to
arbitration, he concludes that dismissal is appropriate.
For the reasons he set forth, Judge Drozd (i) granted the
Defendant's motion to compel arbitration; and (ii) denied the
Plaintiffs' request for leave to amend. He dismissed the action
without prejudice. The Clerk of Court is directed to close the
case.
A full-text copy of the Court's Oct. 23, 2019 Order is available at
https://is.gd/aKY8F3 from Leagle.com.
Salvador Calzadillas, Plaintiff, represented by Edgar Ivan
Aguilasocho -- eaguilasocho@farmworkerlaw.com -- Martinez,
Aguilasocho & Lynch APLC, Liane Katzenstein Ly --
liane@kingsleykingsley.com -- Kingsley & Kingsley, APC, Mario
Martinez -- mmartinez@farmworkerlaw.com -- Martinez Aguilasocho &
Lynch, APLC & Eric Bryce Kingsley -- eric@kingsleykingsley.com --
Kingsley & Kingsley APC.
The Wonderful Company, LLC, Defendant, represented by Lisa Ann
Stilson -- lisa.stilson@roll.com -- Roll Law Group, P.C. & Brooke
S. Hammond -- brooke.hammond@roll.com -- Roll Law Group P.C..
*********
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