/raid1/www/Hosts/bankrupt/CAR_Public/191205.mbx
C L A S S A C T I O N R E P O R T E R
Thursday, December 5, 2019, Vol. 21, No. 243
Headlines
ABBVIE: Lawyers Get $5.3MM Fees in Class Action Settlement
ABERCROMBIE & FITCH: Tucker Sues Over Blind-Unusable Gift Cards
AE HOSPITALITY: Monkhouse Law Launches $12MM Class Action
ALLERGAN: Faces Class Action Over Recalled Breast Implants
AMP LTD: App. Ct. Endorses a Stay to Address Competing Class Suits
ANCHOR DRILLING: Judge Signs Off on Amended $1.1MM Class Settlement
ANZ BANK: Hearing in Ross Asset Class Action Scheduled for March
ARS NATIONAL: Perl Files FDCPA Suit in S.D. New York
AUSTRALIA: Homeowners Near Eight Military Bases Mull Class Action
BEACHBODY LLC: Guglielmo Files ADA Suit in S.D. New York
BROOKDALE SENIOR: Class Action to Remain in Federal Court
CAESARS ENTERTAINMENT: Briefing Sched on Summ. Jdg. Bid Extended
CAL ART DESIGN: Lara Seeks to Recover Overtime Wage & Premium Pay
CARNIVAL CORP: $12.5MM Class Action Settlement Gets Final Court OK
CAVALRY PORTFOLIO: Can Compel Arbitration in Good FDCPA Suit
CEANNATE CORP: OT Class Action Settlement Gets Final Court Nod
CENTER FOR SENIORS: Kim Appeals Ruling in FLSA Suit to 7th Cir.
CHARLOTTE'S WEB: Sells Illegal CBD Products, McCarthy Suit Says
CHICAGO, IL: Class Action Seeks Refund of CBD Parking Tickets
CIMPRESS USA: Guglielmo Files ADA Suit in S.D. New York
DOMINO'S PIZZA: Blanton Files Appeal in Antitrust Suit
EAST COAST WALL: Bonilla Seeks to Recover Unpaid Overtime Wages
EXPERIAN INFORMATION: Lowenbein Files FCRA Suit in New York
FUYAO GLASS: Wants Class Action Settlement Kept Private
GOGO INC: Illinois Judge Dismisses Securities Class Action
GREGORY PEST: Carpenter Seeks to Recover Minimum & Overtime Wages
GREYSTAR REAL: Court Pauses Class Action Over 401(k) Fees
HORIZON HOBBY: Guglielmo Files ADA Suit in S.D. New York
HOSPITAL FOR SICK: CPA Suspends Limitation Period in Class Action
INFOTECH SOLUTIONS: Faces Bollinger Suit Alleging FLSA Violation
IROBOT CORP: Schall Law Firm Investigates Securities Claims
JUUL LABS: Baron & Budd Files Class Action on Behalf of LAUSD
JUUL LABS: Colorado Teen Files Suit Over Nicotine Addiction
JUUL LABS: Panish Shea Files Class Action on Behalf of LAUSD
KNOLLWOOD ROAD: Lara Seeks to Recover Minimum and Overtime Wages
MDL 1869: D.C. Circuit Tosses Class Certification
MDL 2492: Alexander Suit v. NCAA Over Health Issues Consolidated
MDL 2492: Amell Suit v. NCAA Over Health Issues Consolidated
MDL 2492: Bates Suit v. NCAA Over Health Issues Consolidated
MDL 2492: Deptula Suit v. NCAA Over Health Issues Consolidated
MDL 2492: Dimmack Suit v. NCAA Over Health Issues Consolidated
MDL 2492: Justice Suit v. NCAA Over Health Issues Consolidated
MDL 2492: Leiss Suit v. NCAA Over Health Issues Consolidated
MDL 2492: Noiel Suit v. NCAA Over Health Issues Consolidated
MDL 2492: Reid Suit v. NCAA Over Health Issues Consolidated
MDL 2492: Springer Suit v. NCAA Over Health Issues Consolidated
MDL 2492: Vincent Suit v. NCAA Over Health Issues Consolidated
MDL 2804: Montgomery County to Join Opioid Class Action
MICHAELS ORGANIZATION: Lenz Files Suit in M.D. Florida
OLD NAVY LLC: Faces Nemykina Suit Over False Prices and Discounts
PACIFIC FOODS: Nelles Sues Over False Vanilla Almond Milk Labels
PHILADELPHIA FEDERAL: Faces Class Action Over NSF Fees
PLANTRONICS INC: December 20 Settlement Fairness Hearing Set
POST CONSUMER: First Circuit Appeal Filed in Lima Consumer Suit
POWERCOR: Bushfire Class Action Hearing Scheduled for December 9
RESOLUTE ENERGY: Filing of Bid to Extend Time Supplement Due Dec 12
RUSHMORE LOAN: 11th Cir. Overturns Ruling in Sellers FDCPA Case
SAFEWAY INC: Settles Cashier Seat Class Action for $12 Million
SCOTT & ASSOCIATES: Eleventh Circuit Appeal Filed in Russaw Suit
SHANGHAI ORIGINAL: Jin Appeals Denial to Reconsider Decert. Order
SHUTTERFLY INC: Guglielmo Files ADA Suit in S.D. New York
SMILEDIRECT: Kirby McInerney Files Class Action Over IPO
SPECTRUM BRANDS: Class Action to Remain in Federal Court
SWITCH ENERGY: Moore Sues Over Nuisance Telemarketing Practices
THE PERSONAL: $2.2MM Creditor Score Class Action Settlement OK'd
THRIFT BOOKS: Guglielmo Files ADA Suit in S.D. New York
TRICOPIAN INC: Faces Class Action Over Swap Fees
TRW AUTOMOTIVE: Sixth Circuit Appeal Initiated in UAW ERISA Suit
UNITED STATES: Ct. Limits Detainees' Ability to Bring Class Action
VALENTINE & KEBARTAS: Kucur Files FDCPA Suit in E.D. New York
WALMART-STORES: Court Dismantles Sex Discrimination Class Action
WHITEWAVE SERVICES: Mislabels Vanilla Almond Creamer, Newton Says
[*] Australian Lawyers Reject Push for Class Action Regulation
[*] Class Action Settlement Payout Process May Become Easier
[*] More Labor Depreciation Class Actions Filed This Past Quarter
[*] Privacy Class Actions Expected to Increase by 300% in 2020
*********
ABBVIE: Lawyers Get $5.3MM Fees in Class Action Settlement
----------------------------------------------------------
Dan Churney, writing for Cook County Record, reports that plaintiff
attorneys are collecting $5.3 million for handling a class action
against North Chicago-based drugmaker AbbVie, which alleged the
company hid information that caused investors in a European company
to lose millions after AbbVie pulled out of a merger with the
company.
On Oct. 22 in U.S. District Court for the Northern District of
Illinois, Judge Robert Dow Jr. approved a $16.8 million settlement,
from which $5.3 million goes to the New York City firms of Wolf,
Haldenstein, Adler, Freeman & Herz, which also has a Chicago
office, and Gardy & Notis. The firms are receiving an additional
$530,133 for costs pressing the case.
These firms said their percentage of the settlement is not
"excessive" and is in line with similar settlements.
The firms were lead counsel for a group of hedge funds and other
investors, who sued AbbVie and its chief executive officer Richard
Gonzalez in 2014 after AbbVie's abortive merger with Irish
pharmaceutical company Shire PLC.
Plaintiffs said AbbVie withdrew from the $54 billion deal, after
AbbVie learned its taxes would not be cut if it became a foreign
corporation. AbbVie allegedly failed to not only disclose it might
not go through with the merger if taxes would not be reduced, but
Gonazalez spoke positively about the proposed merger a few weeks
before the deal was abandoned.
Investors said they would not have continued putting money into
Shire if they had known AbbVie might back out. As a consequence,
investors said they took a bath when Shire's stock price plummeted
30 percent in the two days after the proposed merger came unglued.
They sued, alleging AbbVie breached the U.S. Securities Exchange
Act.
For serving as lead plaintiff, Dawn Bradley is collecting $9,037 on
top of her pro rata share of the settlement as a class member.
Other plaintiffs include Elliott International, the Liverpool
Partnership, Tyrus Capital Event Master Fund and Tyrus Capital
Opportunities Master Funds.
Class members are those who acquired shares, bought call options or
sold put options of Shire between Sept. 29 and Oct. 14, 2014. The
settlement recognizes a loss of $50.69 per acquired share and notes
more than 40 million shares were tradeable during the period. The
dates mark when Gonzalez expressed confidence in the Shire purchase
and when AbbVie announced it might not make the purchase.
No class members registered objections to the settlement, court
records showed.
More than two dozen investment companies and associated entities
excluded themselves from the class, such as Goose Hill Capital and
First New York Securities.
AbbVie officers during the class period and their relatives are
among the groups automatically excluded from the class.
In agreeing to settle, plaintiff's attorneys noted arguments they
anticipated AbbVie might have put forth at trial.
Plaintiff said AbbVie might have argued they were not obliged to
announce the merger was still under evaluation, before announcing
their final decision. Defendants might also have contended
Gonzalez's positive remark about the merger, shortly before calling
off the deal, was not intended as an official statement.
In response, plaintiffs said they would allege Gonzalez should have
known his remark would be misleading and his alleged failure to
correct that misleading impression showed alleged intent to
deceive.
AbbVie is represented by Kirkland & Ellis, of Chicago. [GN]
ABERCROMBIE & FITCH: Tucker Sues Over Blind-Unusable Gift Cards
---------------------------------------------------------------
HENRY TUCKER, ON BEHALF OF HIMSELF AND ALL OTHER PERSONS SIMILARLY
SITUATED v. ABERCROMBIE & FITCH CO., Case No. 1:19-cv-10032
(S.D.N.Y., Oct. 29, 2019), is brought against the Defendant for its
failure to sell store gift cards to consumers that contain writing
in Braille to be fully accessible to and independently usable by
the Plaintiff and other blind or visually-impaired people.
Mr. Tucker 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. He contends that the Defendant's denial of full and
equal access to its store gift card is a violation of his rights
under 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
its store gift cards will become and remain accessible to blind and
visually-impaired consumers.
Abercrombie & Fitch Co. is registered to do business in New York
and a Delaware public company with its principal executive offices
in New Albany, Ohio. The Defendant operates Abercrombie & Fitch
retail stores, as well as stores for various subsidiary companies
and advertises, markets, distributes, and/or sells retail
merchandise in the City and State of New York and throughout the
world.[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
Telephone: (212) 228-9795
Facsimile: (212) 982-6284
E-mail: nyjg@aol.com
DanaLGottlieb@aol.com
AE HOSPITALITY: Monkhouse Law Launches $12MM Class Action
---------------------------------------------------------
An employee class action lawsuit has been filed by Monkhouse Law
against AE Hospitality of Toronto that operated two closely related
catering companies, Encore Food with Elegance and Applause Catering
Inc. The two catering companies no longer exist and have been
replaced by Encore Catering.
The employee lawsuit claims damages of $5 million for breached
employment standards and $2 million in missed CCP and EI premiums.
It also seeks $5 million in punitive damages for a total of 12
Million Dollars.
"The flexibility to refuse work does not turn employees into
independent contractors," said Andrew Monkhouse --
andrew@monkhouselaw.com -- founder and managing lawyer of Monkhouse
Law, a Toronto employment law firm.
"This is yet another misclassification of workers. We are seeing
more and more of these cases every month," said Mr. Monkhouse.
The employee class action lawsuit is being filed on the heels of a
July 2019 Tax Court of Canada decision, AE Hospitality v MNR, where
Canada Revenue Agency (CRA) found that the 218 workers of AE
Hospitality were employees and not independent contractors. This
being the case, the 218 workers were engaged in pensionable and
insurable employment.
Whereas in tax cases, subjective intent (i.e. to be an independent
contractor) is relevant in determining an employee's status,
employees have no power to contract out of the protections afforded
them under the Employment Standards Act (ESA) 2000, even if they
wanted to.
"Rather, the test in assessing the status of a worker is this:
'Whose business is it?' Do workers bear the business risk? in
relation to the services they provide to the company? Or, is that
risk borne by the company?" said Mr. Monkhouse.
Affected employees of AE Hospitality can keep up-to-date on the
employee class action lawsuit by completing a form on the Monkhouse
law website for affected workers:
https://www.monkhouselaw.com/ae-hospitality-catering-misclassification
Toronto-based Monkhouse Law is an employment law firm that
specializes in: employee class actions, wrongful dismissal, human
rights law, employment insurance claims, and denied long-term
disability claims.
For further information: Andrew Monkhouse, Monkhouse Law Barristers
& Solicitors, Andrew@monkhouselaw.com, (416) 907-9249 [GN]
ALLERGAN: Faces Class Action Over Recalled Breast Implants
----------------------------------------------------------
Naseem S. Miller, writing for Orlando Sentinel, reports that two
women in Florida have filed a lawsuit against Allergan, the maker
of textured breast implants that have been recalled because of
their association with increased risk of a rare cancer.
The lawsuit, filed in federal court in the Middle District of
Florida, is demanding $5 million in damages. It is seeking class
action status.
At the crux of the lawsuit is the surgical costs associated with
removing and replacing the textured breast implants, which Allergan
is not offering to cover.
This leaves women with a "horrible choice: remove the Implant and
pay surgical and associated costs out of their own pocket or live
in fear knowing that their Implants have increased their risk of
developing cancer," the lawsuit says.
The lawsuit alleges that Allergan breached its implied contract by
selling a product that posed a risk to patients, has unjustly
profited at the expense of the affected women, and has violated
Florida's Deceptive and Unfair Trade Practices Act.
The case is one of several lawsuits filed against Allergan in
recent months. A similar lawsuit filed in August sought to cover
the costs associated with replacing the breast implants. In another
lawsuit, filed in September, two women alleged that they developed
cancer because of Allergan's textured implants.
Compared with implants that have a smooth outer surface, textured
implants provide more friction with the surrounding tissue and
thereby are more likely to stay in place. Several companies,
including Allergan, make textured implants.
But the Food and Drug Administration recalled Allergan BIOCELL
textured breast implants in July because of the increased risk of
anaplastic large cell lymphoma, or BIA-ALCL, a type of
non-Hodgkin's lymphoma.
FDA officials said that the risk of developing the cancer with
Allergan's BIOCELL textured implants was nearly 6 times the risk of
developing the cancer from textured implants manufactured by other
companies.
Federal health officials are not recommending replacement of
textured implants if patients have no symptoms such as sudden
swelling or enlargement of the breast.
Following the recall, Allergan -- an international pharmaceutical
company based in Ireland, which is the maker of Botox Cosmetic,
Coolsculpting and other drugs and medical devices -- said that if
women with textured breast implants chose to replace their
implants, the company would provide smooth implants of similar size
for free, according to the lawsuit.
The company also offered to reimburse up to $1,000 in diagnostic
fees and up to $7,500 in surgical fees associated with diagnosis
and treatment of the BIA-ALCL cancer, the lawsuit says.
But Allergan is not offering to pay for all the expenses associated
with removing and replacing the recalled implants or for the cost
of implants from a different company, according to the lawsuit.
"The offer is hollow as Allergan refuses to pay the majority of the
costs associated with the needed removal of the Implants,"
according to the lawsuit.
Kelli Russell, the Orange County woman in the lawsuit, had a double
mastectomy after a cancer diagnosis in 2016 and decided to have
reconstructive breast surgery, choosing one of Allergan's textured
silicone breast implants, according to the lawsuit. She learned
about the recall in a letter from Allergan in August.
The second woman, Amy Ferrera of Hillsborough County, had breast
augmentation in December 2009 and found out about the recall after
her doctor called her in September and told her that she needed to
schedule an appointment to discuss her options, according to the
lawsuit.
Both women have health insurance, but their out-of-pocket costs for
the procedure would range from $3,000 to $9,000, excluding time off
from work, the lawsuit says.
The odds of developing anaplastic large cell lymphoma are still
low, but diagnosis is serious and can lead to death if the cancer
isn't diagnosed early.
The FDA recall was based on reports of 573 cases of anaplastic
large cell lymphoma worldwide, including 33 deaths. Of all the
cases, 481 had Allergan breast implants at the time of diagnosis,
according to the FDA.
"The continued distribution of Allergan's BIOCELL textured breast
implants would likely cause serious, adverse health consequences
and potentially death from BIA-ALCL," the FDA wrote on Aug. 2.
Textured implants make up less than 10% of all breast implants sold
in the U.S., and the FDA is still trying to determine if the risk
of anaplastic large cell lymphoma is only associated with specific
models of textured breast implants or all of them.
Since the recall, Allergan has started removing the breast implants
from the market. The agency also advised doctors to stop using the
breast implants and return their inventory to the company.
Attorneys for the women did not respond to requests for comment,
nor did Allergan. [GN]
AMP LTD: App. Ct. Endorses a Stay to Address Competing Class Suits
------------------------------------------------------------------
John Emmerig, Esq., and Michael Legg, Esq., of Jones Day, in an
article for JDSupra, report that the competing class actions,
particularly in relation to shareholder claims, have increased in
Australia due to the incentives in the Australian legal market,
namely minimal regulation of litigation funding and high rates of
return for lawyers and funders.
The Result: Consequently, methods for dealing with competing class
actions have become urgent. In Wigmans v AMP Ltd [2019] NSWCA 243,
a five-judge Court of Appeal endorsed the use of a stay to address
competing class actions and provided guidance on how a court should
employ a multifactorial approach to determine which class action(s)
to stay.
Looking Ahead: This is the second Australian appeal court to
endorse the use of a stay. However, competing class actions may be
addressed in a number of ways. Other approaches, such as
consolidation, may also be employed.
Background
Five sets of competing open shareholder class actions were
commenced against AMP Limited ("AMP") arising from disclosures made
before the Financial Services Royal Commission. The first, the
Wigmans proceeding, was commenced in the Supreme Court of New South
Wales ("Supreme Court of NSW"). The remaining four were commenced
in the Federal Court and transferred to the Supreme Court of NSW by
decision of the Full Federal Court. The five proceedings
substantially overlapped in the facts alleged, the causes of action
pleaded and their group membership. Two of the sets of proceedings
were consolidated ("Komlotex/Fernbrook proceedings") so that five
became four. Otherwise, all parties sought to stay all of the other
class actions, except their own.
The judge at first instance applied a multifactorial analysis to
determine which of the proceedings should progress. Her Honour
identified the following relevant factors to be taken into account
in the present case:
-- the competing funding proposals, costs estimates and net
hypothetical return to group members;
-- the proposals for security for costs;
-- the nature and scope of the causes of action advanced;
-- the size of the respective classes;
-- the extent of any bookbuild;
-- the experience of the legal practitioners and availability of
legal resources;
-- the state of progress of the proceedings; and
-- the conduct of the representative plaintiffs to date.
Her Honour ultimately chose to stay all proceedings except the
Komlotex/Fernbrook proceedings and placed most weight on the
funding proposal that minimised the cost to group members.
Komlotex/Fernbrook utilised a "no win, no fee" model that involved
group members only being required to pay legal fees upon a
successful outcome, and with no litigation funder, so that there
was no funding commission.
New South Wales Court of Appeal
A five-judge Court of Appeal considered three proposed grounds of
appeal brought by Wigmans. As the appeal was in relation to an
interlocutory order, leave to appeal was required. Leave was not
granted for grounds 2 (conducting a comparison of returns to group
members under the funding proposals was not permitted or, if
allowed, was not based on a rational foundation) or 3 (if a
multifactorial approach was allowed, the judge erred in how it was
conducted).
Ground 1 addressed what principles are to be applied where one
defendant is the subject of multiple "open" class actions. The test
proposed by Wigmans was that if the first class action was
regularly commenced, then for it be stayed, it must be shown to be
"clearly inappropriate". Moreover, subsequently filed class actions
are necessarily duplicative and as a result vexatious and
oppressive, and ultimately an abuse of process.
President Bell wrote the lead judgment. While the proposed approach
did not create a rigid "first filed" test, it would, in practice,
cast an onus that would be very difficult to discharge for later
plaintiffs; it was not appropriate. His Honour found that although
the order of filing of proceedings is a relevant consideration in
any application to stay proceedings, the common law has never
favoured a "first filed" rule as a means of resolving which of the
competing proceedings should proceed. Moreover, the case law relied
on by Wigmans demonstrated that the resources of the plaintiffs in
group proceedings and the availability of funding to such parties
have been treated as relevant considerations.
President Bell then turned to section 58 of the Civil Procedure Act
2005 (NSW) which mandates how judges are to determine, inter alia,
stay applications, including by mandatory reference to the
overriding purpose "to facilitate the just, quick and cheap
resolution of the real issues in the proceedings". Section 58
provides a broad power and discretion to grant a stay of
proceedings. The primary judge exercised the discretion vested in
her by the Civil Procedure Act by reference to a range of relevant
considerations and in a manner that was open to her and undertaken
without error.
His Honour also observed that there is no "one size fits all"
response to competing class actions and approaches, other than a
stay may be used. However, it is the strong policy of the law to
avoid a multiplicity of proceedings.
Justices of Appeal Meagher and Payne added that in determining how
to address competing class actions, "the persons whose interests
must be given primary consideration are the represented group
members and the defendants", not the funders and law firms that are
competing in the class actions marketplace.
Four Key Takeaways
1. The decision in Wigmans v AMP Ltd [2019] NSWCA 243 provides
further guidance as to how competing class actions may be
addressed. It is clear that a stay may be pursued.
2. However, uncertainty persists due to the no "one size fits all"
response, permitting multiple approaches other than a stay.
Moreover, even if a stay is to be adopted, which class action will
proceed will depend on a multifactorial analysis.
3. A key factor will be the funding of the class action and how a
court evaluates the rates and methods of charging legal fees and
litigation funding fees. Class action financing has been an area of
innovation which is likely to continue.
4. From a defendant's perspective, the courts have recognised that
defendants should not have to face multiple class actions with the
same allegations—multiplicity is to be avoided where possible.
[GN]
ANCHOR DRILLING: Judge Signs Off on Amended $1.1MM Class Settlement
-------------------------------------------------------------------
Scott Holland, writing for Pennsylvania Record, reports that a
federal judge has signed off on an amended $1.1 million settlement
agreement in a labor law class action lawsuit.
Chad Kapolka and Brett Turrentine had sued Anchor Drilling Fluids
USA and Q'Max America, alleging violations of the Fair Labor
Standards Act with respect to overtime wages. In a Sept. 3 order,
U.S. District Judge Nicholas Ranjan, of the Western District of
Pennsylvania, raised concerns about the parties' proposed
settlement agreement.
After a jointly submitted amended agreement, Ranjan issued an Oct.
22 opinion moving the deal forward.
Ranjan said he was inclined to reject the initial agreement on
account of its confidentiality provision, a flaw addressed in the
amended version. The underlying dispute is the plaintiffs'
allegation that the companies misclassified putative class members
as independent contractors, depriving them of overtime pay.
The companies "disagreed vehemently with many of the assertions in
the complaint," Ranjan wrote, citing an affidavit from the lawyers'
attorneys.
Under the deal, the defendant companies will pay $1.105 million, of
which $386,750 will go to the plaintiffs' lawyers in fees, along
with up to $20,000 in court costs and other expenses and up to
$7,000 for settlement administrative costs. Kapolka and Turrentine
will each get $5,000 service awards. The remaining $694,522 will be
prorated among opt-in class members based on the number of weeks of
overtime pay in dispute.
"This case is not all that complex when compared to other class or
collective actions, but neither is it uniquely straightforward,"
Ranjan wrote, adding "settlement of this case would conserve
substantial time, expense and judicial resources."
Ranjan said all parties faced significant risks had the matter
proceeded to trial, which factored into settlement negotiations,
and further determined it was appropriate to set aside 35 percent
of the settlement pool given the nature of the litigation and the
experience of the plaintiffs' counsel. [GN]
ANZ BANK: Hearing in Ross Asset Class Action Scheduled for March
----------------------------------------------------------------
BusinessDesk reports that a date has been set for the first legal
hurdle for Ross Asset Management investors in their class action
against the ANZ Bank.
Five hundred investors have now signed up to the class action
against ANZ, which alleges the bank breached its duties. The claim
has been estimated at upwards of $70 million and is being defended
by ANZ.
RAM, the country's largest Ponzi scheme, collapsed in late 2012.
More than 800 investors believed more than $450 million was being
managed on their behalf, but actual losses were closer to $100
million. About $10 million has been recovered.
The initial hearing is expected to take two days because rather
than go directly to trial, the bank has opted to try and eliminate
the investor group's claim at a preliminary hearing scheduled for
March.
The bank has already spent years fighting in court with the
Financial Markets Authority, which in 2016 formed a view ANZ could
be liable to investors and the regulator wanted to pass its
information on. That information will be used if the case continues
after this first hurdle.
As a strike-out application, no evidence will be heard, but the
bank is arguing RAM investors don't have a case.
"ANZ has made the application because it believes the claim is not
reasonably arguable, which is the relevant legal test for a claim
to be struck out under the High Court rules," a spokeswoman says in
a statement.
RAM investor group spokesman John Strahl says the bank is perfectly
entitled to the preliminary action. That means the actual claim
won't be fully heard until 2021 at the earliest.
"We would have preferred to be getting on with discovery and the
other preliminary steps to go to trial. That will have to take a
bit of a back seat because they've told us they don't want to
expend time and effort until after this application, which is
consistent with their 'we're completely innocent' approach up until
now."
However, he says there is an opportunity for the courts to review
the case with the "bare bones" they currently have. "And if the
courts say no, we'd rather know about it now than in a couple of
years time."
Strahl says investors are in for the long haul, having made
litigation funding arrangements with LPF Group. Under their deal,
the litigation funder takes 25 percent if it settles before July
next year, and 30 percent thereafter. RAM investors need to sign up
for the claim before Jan. 31 to participate.
The FMA's work investigating Ross and then the ANZ makes it one of
the most time-consuming and costly cases for the regulator. It
started receiving complaints about RAM in 2012.
The regulator spent about 4,500 hours and almost $140,000 in
external costs on the initial investigation into Ross. It then
spent another 3,000 hours fighting the ANZ and racked up another
$705,000 in external costs.
This could be compared with the FMA's most costly case as at July
this year, the Hanover litigation. That case settled after the
regulator paid $3.78 million to external advisors and 7,286 in
staff hours.
The prosecutions of Paul Bublitz and other directors associated
with Viaduct Capital and Mutual Finance cost $2.35 million and
16,097 in staff hours.
Section 34 of the Financial Markets Authority Act, which allows the
regulator to step into the shoes of investors and take a claim, has
only been used once. That was against Prince and Partners, a case
which involved 1,346 staff hours and saw $820,000 in billings to
advisors. [GN]
ARS NATIONAL: Perl Files FDCPA Suit in S.D. New York
----------------------------------------------------
A class action lawsuit has been filed against ARS National Services
Inc. The case is styled as Gittel Perl, individually and on behalf
of all others similarly situated, Plaintiff v. ARS National
Services Inc., Defendant, Case No. 7:19-cv-11031 (S.D.N.Y., Dec. 2,
2019).
The Plaintiff filed the case under the Fair Debt Collection
Practices Act.
ARS National Services, Inc. offers accounts receivable management
services. It caters to financial services organizations; banks; and
credit card companies. The company is based in Escondido,
California.[BN]
The Plaintiff is represented by:
Craig B. Sanders, Esq.
Barshay Sanders, PLLC
100 Garden City Plaza, Suite 500
Garden City, NY 11530
Phone: (516) 203-7600
Fax: (516) 281-7601
Email: csanders@barshaysanders.com
AUSTRALIA: Homeowners Near Eight Military Bases Mull Class Action
-----------------------------------------------------------------
Tony Moore, writing for The Age, reports that homeowners near eight
military bases who claim the value of their property has nosedived
by up to half are preparing to sue the federal government in one of
Australia's largest class actions.
The lawsuit was announced on Oct. 29 as pressure mounts on the
government over its response to PFAS contamination from chemicals
that have leached from firefighting foams at airbases.
Mr. Gaven said recent rates notices showed sizeable drops in land
valuations around RAAF Base Pearce.
"These are the people who have experienced drops in land valuations
of around 50 per cent. A lot of people have just received their
rates notices from the Valuer-General and the unimproved value of
the land has gone down by 50 per cent," he said.
"We think that devaluation is a direct response to the PFAS
contamination."
Shine Lawyers is currently involved in two class actions for home
owners at Oakey and Katherine.
Another law firm, Dentons, has launched a class action for
residents at Williamtown, near Newcastle.
On Oct. 29 Shine Lawyers announced its third "broader" class action
for communities around eight Australian Defence Force bases,
including Townsville in Queensland, where there are two bases;
Bullsbrook in WA; Wagga Wagga and Richmond in NSW; Edinburgh in
South Australia; Wodonga in Victoria and Darwin in the Northern
Territory.
Mr. Gaven said residents felt trapped by being unable to sell their
homes.
"We have had people who have suffered property losses of up to 50
per cent," Mr. Gaven said.
"These people are living in areas where the Department of Defence
is saying you can't eat their fruit and vegetables, they can't eat
the eggs, they cannot eat their livestock," he said.
"You also have pets that are riddled with cancer.
"The most common scenario we have found is that people are saying
they are basically stuck. They cannot sell their properties because
they have lost so much money in them and no one basically wants to
buy them."
The Defence Department has been reviewing the situation involving
PFAS contamination at RAAF bases since 2004. Firefighting foams
were phased out between 2004 and 2010.
The department has run community consultation sessions in each
community where contamination has been confirmed.
Shine Lawyers' Josh Aylward on Oct. 28 told Brisbane Times its
class action team had met families from around RAAF Base Amberley
who have complained their land values had plummeted.
Defence Department scientific studies in November 2018 and August
2019 confirmed PFAS chemicals leached from RAAF Base Amberley into
the surrounding Bremer River and Warrill Creek.
Mr. Gaven said the decision to broaden the class action was taken
because PFAS contamination was becoming a national issue.
"These people have obviously been affected in similar ways to the
people in Oakey, Katherine and Williamtown," he said.
"We are looking to get compensation for those people who find
themselves in a similar situation to those other people."
Mr. Gaven said he expected large numbers of people to join the
broader class action before it was filed.
Shine Lawyers was focusing on loss of property value, he said,
because the health impacts of PFAS were still being evaluated by
international scientists. [GN]
BEACHBODY LLC: Guglielmo Files ADA Suit in S.D. New York
--------------------------------------------------------
A class action lawsuit has been filed against Beachbody, LLC. The
case is styled as Joseph Guglielmo, on behalf of himself and all
others similarly situated, Plaintiff v. Beachbody, LLC, Defendant,
Case No. 1:19-cv-11041 (S.D.N.Y., Dec. 2, 2019).
The Plaintiff filed the case under the Americans with Disabilities
Act.
Beachbody LLC is an American multinational corporation that uses
direct response infomercials, multi-level marketing, e-commerce and
individual sales consultants to sell fitness, weight loss, and
muscle building home-exercise videos.[BN]
The Plaintiff is represented by:
Russel Craig Weinrib, Esq.
Stein Saks PLLC
285 Passaic St., Suite 5
Hakensack, NJ 07601
Phone: (201) 282-6500
Email: rweinrib@steinsakslegal.com
BROOKDALE SENIOR: Class Action to Remain in Federal Court
---------------------------------------------------------
Perry Cooper, writing for Bloomberg Law, reports that Brookdale
Senior Living Inc. will continue to face a class action alleging it
mistreated patients at a Kentucky nursing home in federal court,
after the Sixth Circuit refused Oct. 28 to review denial of the
plaintiffs' bid to return the case to state court.
Brookdale removed Carrie Johnson's suit from state court under the
Class Action Fairness Act. Johnson sought remand, arguing CAFA's
local controversy exception applied, but the lower court denied her
motion.
She asked the Sixth Circuit to let her appeal. [GN]
CAESARS ENTERTAINMENT: Briefing Sched on Summ. Jdg. Bid Extended
----------------------------------------------------------------
In the case, JUSTIN CASTILLO, as an individual and on behalf of all
others similarly situated, Plaintiff, v. CAESARS ENTERTAINMENT
CORPORATION and DESERT PALACE, LLC d/b/a CAESARS PALACE HOTEL &
CASINO, Defendants, Case No. 2:18-cv-2297-GMN-NJK (D. Nev.), Judge
Gloria M. Navarro of the U.S. District Court for the District of
Nevada has entered an order granting the Parties' stipulation to
extend brieding schedule on the Defendants' Motion for Partial
Summary Judgment and on the Defendants' Motion Stay Discovery
Pending Resolution of Motion for Partial Summary Judgment, or in
the Alternative, for Reconsideration.
Castillo and the Defendants stipulated and agreed that (i) the
Plaintiff's deadline to respond to the Defendants' Motion for
Partial Summary Judgment is extended from Nov. 18, 2019 to Dec. 20,
2019; and (ii) the Defendants' deadline to file a reply brief in
support is extended from Jan. 3, 2020 to Jan. 10, 2020.
Further, the Parties stipulated and agreed that (i) the Plaintiff's
deadline to respond to Defendants' Motion Stay is extended from
Nov. 12, 2019 to Nov. 26, 2019; and (ii) the Defendants' deadline
to file a reply brief in support thereof is extended from Dec. 3,
2019 to Dec. 10, 2019.
Judge Navarro finds that good cause exists for the extensions
requested. The Plaintiff's counsel has a motion for summary
judgment hearing in another class-action case on Nov. 21, 2019,
which will require substantial preparation and travel. In
addition, the Plaintiff's counsel has several other briefing
deadlines in the late November and early December time frame.
While the Defendants are amenable to the extensions requested by
the Plaintiff's counsel, each of the Plaintiff's new deadlines
would be immediately before a major holiday, thus warranting
one-week extensions for each of the Defendants' reply deadlines if
the Plaintiff's extensions are granted. In light of these
considerations and the holiday season, good cause exists for the
extensions requested.
It is the first stipulation for an extension of time relating to
the subject motions.
FOr these reasons, Judge Navarro granted the Stipulation to Extend
Briefing Schedule on the Defendants' Motion for Partial Summary
Judgment and on Defendants' Motion to Stay.
A full-text copy of the Court's Nov. 13, 2019 Order is available at
https://is.gd/6RptM3 from Leagle.com.
Justin Castillo, as an individual and on behalf of all others
similarly situated, Plaintiff, represented by Lionel Z. Glancy --
lglancy@glancylaw.com -- Glancy Prongay & Murray LLP, Danielle
Manning -- dmanning@glancylaw.com -- Glancy Prongay & Murray LLP,
pro hac vice, David C. OMara, The OMara Law Firm, P.C., Marc
Lawrence Godino -- mgodino@glancylaw.com -- Glancy Prongay &
Murray
LLP, Mark Samuel Greenstone -- mgreenstone@glancylaw.com --
Greenstone Law APC & Michael Joe Jaurigue, Jaurigue Law Group.
Caesars Entertainment Corporation & Desert Palace, LLC, doing
business as Caesars Palace Hotel & Casino, Defendants, represented
by Matthew T. Murchison -- matthew.murchison@lw.com -- Latham &
Watkins LLP, pro hac vice, Melanie Marilyn Blunschi --
melanie.blunschi@lw.com -- Latham & Watkins LLP, Adam J. Tuetken
--
adam.tuetken@lw.com -- Latham & Watkins LLP, pro hac vice, Frank
M.
Flansburg, III -- fflansburg@bhfs.com -- Browmstein Hyatt Farber
Schreck & Natalie Hardwick Rao -- natalie.rao@lw.com -- Latham &
Watkins LLP, pro hac vice.
United States of America, Intervenor, represented by
Joshua Charles Abbuhl, Civil Division, Federal Programs Branch U.S.
Department of Justice.
CAL ART DESIGN: Lara Seeks to Recover Overtime Wage & Premium Pay
-----------------------------------------------------------------
VICTOR LARA, as representative of the State of California and the
Labor and Workforce Development Agency, and on behalf of himself
and other current and former employees, Plaintiff v. CAL ART DESIGN
CORP. dba MALIBU CERAMIC WORKS; and DOES 1 through 50, inclusive,
Defendant, Case No. 19STCV40439 (Cal. Super., Nov. 7, 2019), seeks
compensation for all hours worked, overtime compensation, premium
pay, reporting time pay, business expense reimbursements, and
penalties from the Defendants for their violation of the the
Private Attorneys' General Act, California Labor Code.
The Plaintiff alleges that the Defendants failed to provide meal
periods, to provide rest periods, to keep accurate payroll records,
and to pay waiting time penalties.
Mr. Lara began his employment with Malibu on January 2017, as a
tile mason, and has at all times been paid an hourly wage of less
than twice the applicable minimum wage, the lawsuit says.
Malibu Ceramic Works specializes in the production of custom
handmade decorative tile, most notably Malibu Tile and terra cotta
paver tile.[BN]
The Plaintiff is represented by:
Katherine Odenbreit, Esq.
Joshua D. Klein, Esq.
MAHONEY LAW GROUP, APC
249 E. Ocean Blvd., Ste. 814
Long Beach, CA 90802
Telephone: (562) 590-5550
Facsimile: (562) 590-8400
E-mail: kodenbreit@mahoney-law.net
jklein@mahoney-law.net
CARNIVAL CORP: $12.5MM Class Action Settlement Gets Final Court OK
------------------------------------------------------------------
Porter Wells, writing for Bloomberg Law, reports that three major
cruise lines and a travel agency have received final approval from
the Northern District of Illinois for a $12.5 million class action
settlement. They were accused of bombarding consumers nationwide
with prerecorded telemarketing calls promoting cruise trips without
their consent.
Carnival Corp., Royal Caribbean Cruises Ltd., and Norwegian Cruise
Lines (Bahamas) Ltd., contributed to the settlement fund together
with Resort Marketing Group, the travel agency that operated the
auto-dialing system in a manner that purportedly violated the
Telephone Consumer Protection Act.
A total 274,851 valid claims have been filed since the settlement
was initially approved in July 2017, Judge Andrea R. Wood said Oct.
28 for the U.S. District Court for the Northern District of
Illinois. The average share of the fund was just over $22 per
claim, she said.
Thirty-one objections were filed against the settlement's terms,
but the agreement is fair, reasonable, and adequate, Wood said.
Some media outlets reported that affected consumers could take home
several hundred dollars each, which led to some dissatisfied class
members, but "the surge of claimants that resulted from the press
coverage was not a situation created by the parties," Wood said.
Class counsel was awarded $3.15 million in attorneys' fees using a
percentage-of-the-fund method. Here, that amounted to 33.99% of the
settlement fund after subtracting administrative costs and Philip
Chavrat's $25,000 incentive award for serving as the class
representative, Wood said.
The attorneys' fees are reasonable, given the initial complaint was
filed in 2012 and the complex litigation was hard-fought before the
parties agreed to settle, Wood said.
Two objectors sought separate incentive awards and attorneys' fees
in the six-figure range, but the objectors' efforts to influence
the settlement terms and class notice procedures weren't material
contributions that would justify such payouts, Wood said.
The Burke Law Offices LLC, Broderick Law P.C., and the Law Office
of Matthew McCue in Natick, MA., represented Charvat and the
class.
Foreman Friedman P.A., Wiczer Sheldon & Jacobs LLC, and the Neff
Law Group P.C. in New Orleans, LA., represented Royal Caribbean.
Swanson Martin & Bell LLP represented Carnival.
Resort Marketing Group and Elizabeth Valente represented
themselves.
The case is Charvat v. Valente, N.D. Ill., No. 12-cv-05746,
10/28/19. [GN]
CAVALRY PORTFOLIO: Can Compel Arbitration in Good FDCPA Suit
------------------------------------------------------------
In the case, BRADLEY GOOD, and all others similarly situated,
Plaintiff, v. CAVALRY PORTFOLIO SERVICES, LLC, et al., Defendants,
Civil Action No. 19-0059 (E.D. Pa.), Judge Nitza I. Quinones
Alejandro of the U.S. District Court for the Eastern District of
Pennsylvania granted the Defendants' motion to dismiss the class
action and compel arbitration. The action is stayed pending the
completion of the arbitration proceedings.
A full-text copy of the Court's Nov. 13, 2019 Order is available at
https://is.gd/ayHDRz from Leagle.com.
BRADLEY GOOD, AND ALL OTHERS SIMILARLY SITUATED, Plaintiff,
represented by CARY L. FLITTER -- cflitter@consumerslaw.com --
FLITTER MILZ, P.C., ANDREW M. MILZ, FLITTER MILZ, P.C. & JODY T.
LOPEZ-JACOBS.
CAVALRY PORTFOLIO SERVICES, LLC & CAVALRY SPV I, LLC, Defendants,
represented by SHANNON P. MILLER -- smiller@MauriceWutscher.com --
Maurice Wutscher LLP & THOMAS R. DOMINCZYK --
tdominczyk@MauriceWutscher.com -- MAURICE WUTSCHER, LLP.
CEANNATE CORP: OT Class Action Settlement Gets Final Court Nod
--------------------------------------------------------------
Law360 reports that an Illinois federal judge granted final
approval to a $425,000 settlement between Ceannate Corp. and a
class of employees alleging the business outsourcing provider
didn't pay them overtime.[GN]
CENTER FOR SENIORS: Kim Appeals Ruling in FLSA Suit to 7th Cir.
---------------------------------------------------------------
Plaintiff Paul Kim filed an appeal from a court ruling in the
lawsuit titled Paul Kim v. Center For Seniors, et al., Case No.
1:18-cv-07660, in the U.S. District Court for the Northern District
of Illinois, Eastern Division.
As previously reported in the Class Action Reporter, the lawsuit is
brought against the Defendants for violations of the Fair Labor
Standards Act, the Illinois Wage Law and the Illinois Wage Payment
and Collection Act.
The Plaintiff alleges that the Defendants willfully and
intentionally failed to pay overtime wages. The Plaintiff is a
resident of Illinois and worked for the Defendants since July 11,
2015. The Plaintiff did all maintenance and repairs of the
buildings.
The Defendants own and operate Center For Seniors, which runs four
Senior Centers in Chicago, Morton Grove, Schaumburg and Wheeling,
Illinois. The centers provide services to senior citizens, such as
adult day service, meals, and recreational activities. The center
also provides the shuttle service between the center and its
customers' home.
The appellate case is captioned as Paul Kim v. Center For Seniors,
et al., Case No. 19-3141, in the U.S. Court of Appeals for the
Seventh Circuit.
The briefing schedule in the Appellate Case states that the
Appellant's brief is due on or before December 9, 2019, for Paul
Kim.[BN]
Plaintiff-Appellant PAUL KIM, on behalf of himself and all other
plaintiffs similarly situated known and unknown, is represented
by:
Ryan Kim, Esq.
INSEED LAW
2454 E. Dempster Street
Des Plaines, IL 60016
Telephone: (847) 905-6262
Defendants-Appellees CENTER FOR SENIORS, an Illinois Non-profit
organization, YOUNG HA and JAE KWAN HA are represented by:
Jennifer Adams Murphy, Esq.
WESSELS SHERMAN JOERG LISZKA LAVERTY SENECZKO P.C.
2035 Foxfield Drive
Dunham Center
St. Charles, IL 60174-0000
Telephone: (630) 377-1554
E-mail: jemurphy@wesselssherman.com
CHARLOTTE'S WEB: Sells Illegal CBD Products, McCarthy Suit Says
---------------------------------------------------------------
Michele McCarthy, individually and on behalf of all others
similarly situated v. CHARLOTTE'S WEB HOLDINGS, INC., a Colorado
Corporation, Case No. 5:19-cv-07836 (N.D. Cal., Nov. 30, 2019), is
brought on behalf of consumers, who purchased the Defendant's CBD
products, all of which are promoted as products containing
cannabidiol, for personal use and not for resale.
The CBD Products include "CBD Oils", "CBD Liquid Capsules", "CBD
Gummies", and "CBD Isolate." The Plaintiff alleges that these
products are illegal to sell. She contends that with knowledge of
growing consumer demand for CBD Products, the Defendant has
intentionally marketed and sold illegal CBD products.
The Defendant's multiple and prominent systematic mislabeling of
the Products form a pattern of unlawful and unfair business
practices that harms the public, the Plaintiff asserts. She avers
that she and each of the Class members have suffered an injury
caused by the false, fraudulent, unfair, deceptive, and misleading
practices of the Defendant.
The Plaintiff brings this suit to halt the unlawful sales and
marketing of the CBD Products by the Defendant and for damages she
sustained as a result. If the Plaintiff knew the Products were not
legally sold in the United States, she would have not purchased
them, says the complaint.
Michele McCarthy is a citizen of California, who purchased CBD Oil
in olive oil flavor for $254.77 from the Defendant's Web site.
The Defendant formulates, manufactures, advertises, and sells the
CBD Products throughout the United States, including in the state
of California.[BN]
The Plaintiff is represented by:
Jonathan Shub, Esq.
Kevin Laukaitis, Esq.
KOHN, SWIFT & GRAF, P.C.
1600 Market Street, Suite 2500
Philadelphia, PA 19103
Phone: (215) 238-1700
Email: jshub@kohnswift.com
klaukaitis@kohnswift.com
CHICAGO, IL: Class Action Seeks Refund of CBD Parking Tickets
-------------------------------------------------------------
Jonathan Bilyk, writing for Cook County Record, reports that a new
class action lawsuit will seek to force Chicago City Hall to cough
up the money it collected from people the lawsuit claims wrongly
paid parking tickets issued an ordinance placing restrictions on
parking inside the city's Central Business District, when their
cars weren't parked in the CBD.
On Oct. 24, lawyers with the Zimmerman Law Offices filed the
complaint in Cook County Circuit Court against the city of Chicago.
The lawsuit was brought by named plaintiff Alec Pinkston, a Chicago
man who said the city wrongly issued him a CBD parking ticket when
his car was parked south of the CBD's southern limit.
The lawsuit would seek to include a class of additional plaintiffs,
which could number in the tens of thousands, as the plaintiffs
assert the city may have issued as many as 6,000 bogus CBD tickets
each year from 2013-2018. The tickets required those receiving them
to pay at least $65 for each violation, according to the
complaint.
The lawsuit centers on a news report published by CBS Chicago in
May 2019. The report asserted an analysis completed by
"self-described data geek" Matt Chapman of a dataset published by
ProPublica revealed that "from 2013 to 2018 the city issued 30,001
[Central Business District Tickets] outside the Central Business
District."
The special CBD tickets were issued under a city ordinance which
enhances the fine for violating the city's metered parking
restrictions in the CBD, such as parking without paying the meter
or remaining parked after the meter expires.
The Pinkston complaint noted ProPublica's dataset included
"information on when, where, and by whom tickets were issued;
de-identified license plates; vehicle make; registration zip code
(sic); the violation for which the vehicle was cited; the payment
status" and "block-level address information to the location where
a ticket was issued."
The complaint said the analysis indicated "the City has a routine
practice of issuing Central Business District Tickets to vehicles
parked outside of the City's Central Business District."
" . . . As a result, Plaintiff (Pinkston) and members of the class
were (and are) subject to fines in connection with violations . . .
which they did not commit," the complaint said.
The CBD roughly includes the Loop and much of River North, bordered
by Halsted Street on the west, Division Street on the north,
Roosevelt Road on the south and Lake Michigan on the east.
In the complaint, Pinkston said he received a CBD ticket in May
2019, when his vehicle was parked in the 1200 block of South Wabash
Avenue, south of Roosevelt Road, which serves as the southern
boundary for the CBD.
In addition to the $65 per ticket fine, the complaint said many of
those who received the tickets also were "subjected to late payment
fees, interest, the immobilization of their vehicles, the
suspension of their drivers licenses, liens imposed on their
personal property, and other costs associated with the City's debt
collection attempts," including attorney fees and court costs.
The complaint asserts the city is continuing to issue the invalid
tickets.
The lawsuit asks the court to order the city to stop writing up the
CBD tickets outside the CBD, and to refund all of the fines paid by
those who received CBD tickets outside the CBD. The complaint does
not estimate the sum of those alleged invalid fines and fees.
The complaint asks to include anyone who was "issued a Central
Business District Ticket when their vehicles were parked outside of
the City's Central Business District," with the addition of a
special subclass for those who also "paid a fine, penalty, and/or
interest" on those CBD tickets. [GN]
CIMPRESS USA: Guglielmo Files ADA Suit in S.D. New York
-------------------------------------------------------
A class action lawsuit has been filed against Cimpress USA
Incorporated. The case is styled as Joseph Guglielmo, on behalf of
himself and all others similarly situated, Plaintiff v. Cimpress
USA Incorporated, Defendant, Case No. 1:19-cv-11047 (S.D.N.Y., Dec.
2, 2019).
The Plaintiff filed the case under the Americans with Disabilities
Act.
Cimpress makes customized print, signage, apparel, gifts, identity
merchandise, packaging and other products.[BN]
The Plaintiff is represented by:
Russel Craig Weinrib, Esq.
Stein Saks PLLC
285 Passaic St., Suite 5
Hakensack, NJ 07601
Phone: (201) 282-6500
Email: rweinrib@steinsakslegal.com
DOMINO'S PIZZA: Blanton Files Appeal in Antitrust Suit
------------------------------------------------------
A notice of appeal has been filed in Harley Blanton, et al. v.
Domino's Pizza Franchising LLC, et al., in the Court of Appeals for
the Sixth Circuit on Dec. 2, 2019.
The case is captioned HARLEY BLANTON, DEREK PIERSING, on Behalf of
Themselves and All Others Similarly Situated, Plaintiff-Appellant
v. DOMINO'S PIZZA FRANCHISING LLC, a Delaware Limited Liability
Company, DOMINO'S PIZZA MASTER ISSUER LLC, a Delaware Limited
Liability Company, DOMINO'S PIZZA LLC, a Michigan Limited Liability
Corporation, DOMINO'S PIZZA, INC., a Delaware Corporation,
Defendant-Appellee, Case No. 19-2388.
The nature of suit is stated as Antitrust.
Domino's is the recognized world leader in pizza delivery operating
a network of company-owned and franchise-owned stores in the United
States and international markets.[BN]
The Plaintiff-Appellant is represented by:
Derek Yeats Brandt, Esq.
McCune Wright Arevalo LLP
101 W. Vandalia Street, Suite 200
Edwardsville, IL 62025
Personal: 618-307-6116
- and -
Michelle Conston, Esq.
Scott & Scott
230 Park Avenue
17th Floor
New York, NY 10169
Personal: 212-223-6444
- and -
Dean Michael Harvey, Esq.
Lieff Cabraser Heimann and Bernstein
275 Battery Street
29th Floor
San Francisco, CA 94111
Business: 415-956-1000
- and -
E. Powell Miller, Esq.
Miller Law Firm
950 W. University Drive, Suite 300
Rochester, MI 48307
Business: 248-841-2200
- and -
Walter W. Noss, Esq.
Scott & Scott
707 Broadway, Suite 1000
San Diego, CA 92101
Personal: 619-233-4565
The Defendant-Appellee is represented by:
Edward J. Hood, Esq.
Clark Hill
500 Woodward Avenue, Suite 3500
Detroit, MI 48226
Personal: 313-965-8591
- and -
Norman M. Leon, Esq.
DLA Piper
203 N. LaSalle Street, Suite 1900
Chicago, IL 60601
Business: 312-368-4000
Personal: 312-368-2192
EAST COAST WALL: Bonilla Seeks to Recover Unpaid Overtime Wages
---------------------------------------------------------------
FRANCISCO BONILLA, individually and on behalf of all others
similarly situated v. EAST COAST WALL COATINGS INC., EAST COAST
WALL COATINGS OF NY INC., and JOHN DI STEFANO, FRANK DI STEFANO,
and ANTHONY RIGGI, as individuals, Case No. 1:19-cv-06079-ENV-VMS
(E.D.N.Y., Oct. 29, 2019), seeks to recover damages for egregious
violations of state and federal wage and hour laws arising out of
the Plaintiff's employment by the Defendants.
Mr. Bonilla was employed by the Defendants from February 1999 until
July 2018. He alleges that he worked 72 hours or more per week
during his employment by the Defendants but they did not pay him
time and a half (1.5) for hours worked over 40, in violation of the
Fair Labor Standards Act.
East Coast Wall Coatings Inc. and East Coast Wall Coatings of NY
Inc. are corporations organized under the laws of New York with a
principal executive office in Franklin Square, New York. The
Individual Defendants are owners, operators or agents of the
Corporate Defendants.[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
E-mail: avshalumovr@yahoo.com
EXPERIAN INFORMATION: Lowenbein Files FCRA Suit in New York
-----------------------------------------------------------
A class action lawsuit has been filed against Experian Information
Solutions, Inc., and American Honda Finance Corporation. The case
is styled as Shmuel Lowenbein, on behalf of himself and all other
similarly situated consumers, Plaintiff v. Experian Information
Solutions, Inc., American Honda Finance Corporation, Defendants,
Case No. 1:19-cv-06766 (E.D.N.Y., Dec. 2, 2019).
The Plaintiff filed the case under the Fair Credit Reporting Act.
Experian is a global information services company that provides
information, analytical tools, and marketing services to help
clients manage their commercial and financial decisions. The
company helps organizations manage credit risk, prevent fraud,
target marketing offers, and automate decision making.[BN]
The Plaintiff appears pro se.
FUYAO GLASS: Wants Class Action Settlement Kept Private
-------------------------------------------------------
Thomas Gnau, writing for Dayton Daily News, reports that in a new
legal filing, Moraine manufacturer Fuyao Glass America is seeking
to keep private how much the company is willing to pay to settle a
workers' class-action lawsuit.
The motion is unopposed by the Columbus law firm that represents
more than 600 former and current Fuyao workers in a legal action
that took aim at the way Fuyao allegedly scheduled and paid
workers.
The case goes back nearly two and one-half years to the original
plaintiff, Julia Staggs, who filed the suit in June 2017 in
Dayton's federal court.
The core contention of the suit is that Fuyao automatically
deducted from workers' payroll for lunch breaks -- whether or not
employees actually took the breaks. Staggs worked at Fuyao from
September to December 2016. Staggs alleged that she worked overtime
at Fuyao without being paid a time-and-a-half wages for that
overtime work. She also claimed that she and others were not
completely relieved of duties during what were supposed to be
breaks from work. A recent docket entry in the case revealed that
the parties had arrived at a settlement during mediation.
Plaintiffs' attorney Bob DeRose recently declined to comment on
that settlement.
In a filing, Fuyao's attorneys wrote that the parties have agreed
to seek to place settlement documents under seal. "The parties
agreed to this term to protect not only Fuyao, but the individuals
who are identified by name and amount of certain payments in the
agreement, in light of the media attention currently surrounding
the company and its operations," wrote Cleveland attorney Timothy
Anderson, who is a member of Fuyao's legal team. The filing says
Fuyao denies any wrongdoing and adds: "Fuyao has a substantial
interest in excluding the motion and agreement from the public
record to avoid negative publicity from those who would undoubtedly
misconstrue the terms of the agreement, including the payments to
the plaintiffs, as an admission of guilt." The settlement agreement
names plaintiffs and specific payments they will receive, the
filing says. However, the filing also says that "pertinent
documents" beyond the "motion, (settlement) agreement and related
documents" will remain a part of the public record. "The public can
view and assess the claims and defenses asserted in the case," the
filing says. Founded by a Chinese industrialist and billionaire,
Fuyao has more than 2,300 workers in Moraine, making automotive
glass. [GN]
GOGO INC: Illinois Judge Dismisses Securities Class Action
----------------------------------------------------------
Shearman & Sterling LLP, in an article for JDSupra, reports that on
October 16, 2019, Judge Jorge L. Alonso of the United States
District Court for the Northern District of Illinois Eastern
Division dismissed a putative securities class action against an
in-flight internet connectivity services provider (the "Company")
and some of its current and former executives. Pierrelouis v. Gogo
Inc., et al., No. 18-cv-04473 (N.D. Ill. Oct. 16, 2019).
Plaintiffs, who brought claims under Sections 10(b) and 20(a) of
the Securities Exchange Act of 1934 (the "Exchange Act") and Rule
10b-5 promulgated thereunder, alleged that defendants
misrepresented the Company's financial health and the performance
and reliability of its in-flight internet services by failing to
disclose the extent of a de-icing fluid issue that was affecting
its ability to provide those services, and that the eventual
disclosure of the issue caused the Company's stock price to
decline. The Court held that plaintiffs failed to plead a material
misrepresentation or omission and also failed to adequately allege
a strong inference of scienter, and therefore dismissed the amended
complaint without prejudice.
According to the amended complaint, in 2016 the Company launched a
new antenna-and-satellite-based internet system, known as the "2Ku
system", to deliver faster in-flight internet connectivity.
However, according to plaintiffs, the systems were installed in
such a manner that de-icing fluid could interfere with it while the
plane was de-icing, causing the systems to malfunction. A major
airline experienced service issues as a result of this process at
the end of 2017 and the Company and its repair teams made attempts
to fix the malfunction, but the issue persisted. Plaintiffs claimed
that repairs would often be delayed for weeks as airline clients
were unable to take their planes out of service for an extended
period of time for repairs, which negatively impacted the Company's
average revenue per aircraft ("ARPA"), a key accounting metric that
shareholders allegedly relied upon in evaluating the Company's
financial performance. Plaintiffs allege that between 2017 and
2018, the Company failed to "fully disclose that a defect in the
2Ku system or its installation was inhibiting its performance" and
that the Company "described any stagnation of ARPA as a short-term
problem caused by 'dilution'" from new installations. According to
plaintiffs, defendants misled investors and analysts by marketing
the 2Ku systems' advantages as "15-plus megabits per second speed
to connect the passengers [,] 98% coverage of global flight
hours[,] and 98% service availability." Plaintiffs alleged that
this description was materially misleading because it suggested
that 2Ku's systems "were already achieving [this] level of
performance . . . when in reality the de-icing fluid infiltration
problem was negatively affecting the system's performance and
requiring costly repairs" and that its service ability was not at
98% as a result of all the issues. Defendants argued that
plaintiffs had not "alleged with particularity that the de-icing
fluid problem had yet manifested itself in such a serious way as to
permit a factfinder to reasonably conclude" that the statements
were misleading at the time they were made.
The Court first considered plaintiffs' arguments that the issues
with 2Ku's systems "must have been apparent long before" its
disclosure in May 2018 and even before its partial disclosure in
February 2018. According to plaintiffs, certain individual
defendants "publicly touted" the Company's "ability to track and
respond" to outages and, therefore, "the problem must have
manifested" by late 2017 based on the major airline's complaints.
The Court rejected plaintiffs' arguments and found that these
examples "do not amount to sufficiently particularized factual
allegations to support a reasonable belief that defendants'
statements were false or misleading at the time they were made."
Rather, according to the Court, the examples cited by
plaintiffs—(i) that the Company "could and did track service
outages," (ii) that defendants "had access to outage reports" and
(iii) that at some time prior to May 4, 2018, during or after the
"winter," the 2Ku systems' availability "plunged" down to the mid
80s'—failed to "provide sufficiently specific and particularized
information about when the data revealed that the de-icing problem
had caused a precipitous drop in availability, or when it became
clear that costly remediation efforts were necessary." Accordingly,
the Court found that plaintiffs "have not made sufficiently
particularized allegations to make plausible, rather than merely
possible, that defendants' statements were misleading when made."
Although the Court held that plaintiffs failed to adequately allege
a material misstatement or omission, it nonetheless proceeded to
consider, and reject, the sufficiency of plaintiffs' scienter
allegations. The Court observed that, again, mere allegations of
the Company's ability to track service outages, its management's
access to outage reports, and a drop in service availability failed
to satisfy PSLRA's particularity requirements because they did not
"answer the critical question of when defendants had sufficient
knowledge to put them on notice that there was at least a
substantial risk that [the Company] would have to incur
considerable remediation costs to prevent service outages due to
de-icing fluid infiltration." According to the Court, an inference
of scienter based on an allegation that defendants were monitoring
data because the numbers were so important is "weak at best."
Moreover, according to the Court, separate and apart from the
particularity requirement, plaintiffs' allegations did not support
a strong inference of scienter that is "cogent and at least as
compelling as any opposing inference of nonfraudulent intent," as
required by the Supreme Court's decision in Tellabs, Inc. v. Makor
Issues & Rights, Ltd., 551 U.S. 308 (2007). The Court found that
"because plaintiffs have not alleged that, before or during the
class period, defendants were presented with any specific
information that demonstrated the scope and magnitude of the
de-icing problem, the inference that defendants recklessly
disregarded a serious problem in omitting to disclose it to
investors is not 'cogent and compelling' in light of opposing,
nonfraudulent inferences," such as the outages being "caused by
other factors apart from the de-icing fluid that were easier to
fix," the defendants not knowing "how expensive and difficult the
necessary repairs would be at first," or the weather being
"different from what they expected, preventing the problem from
revealing itself right away or worsening it once it did."
Finding that plaintiffs failed to sufficiently plead either a
material misrepresentation or scienter, the Court did not consider
plaintiffs' claims under Section 20(a) because there was no
predicate violation of the Exchange Act under which a
control-person violation could be established. The Court,
therefore, granted defendants' motion to dismiss and granted
plaintiffs leave to amend. [GN]
GREGORY PEST: Carpenter Seeks to Recover Minimum & Overtime Wages
-----------------------------------------------------------------
MARK CRAIG CARPENTER, individually and on behalf of others
similarly situated v. GREGORY PEST SOLUTIONS, INC., Case No.
6:19-cv-02079 (M.D. Fla., Oct. 29, 2019), seeks to recover unpaid
overtime and minimum wages under the Fair Labor Standards Act.
Gregory Pest Solutions is a South Carolina Corporation doing
business in Orange County, Florida. The Company employed Mr.
Carpenter in its Orlando office as a pest control technician from
June 2016 through July 29, 2019.[BN]
The Plaintiff is represented by:
Robert S. Norell, Esq.
ROBERT S. NORELL, P.A.
300 N.W. 70 Avenue, Suite 305
Plantation, FL 33317
Telephone: (954) 617-6017
Facsimile: (954) 617-6018
E-mail: rob@floridawagelaw.com
GREYSTAR REAL: Court Pauses Class Action Over 401(k) Fees
---------------------------------------------------------
Jacklyn Wille, writing for Bloomberg Law, reports that a subsidiary
of Greystar Real Estate Partners LLC convinced a federal judge in
San Antonio to pause a proposed class action over the company's
401(k) fees while it pursues arbitration with the employee who
filed suit.
Magistrate Judge Henry J. Bemporad of the U.S. District Court for
the Western District of Texas paused the case while an arbitrator
considers whether any of Sonia Torres's claims against Greystar
fall outside her arbitration agreement with the company. Bemporad
also instructed the arbitrator to determine whether the arbitration
agreement waived the claim Torres brought on behalf of the Greystar
401(k) plan. [GN]
HORIZON HOBBY: Guglielmo Files ADA Suit in S.D. New York
--------------------------------------------------------
A class action lawsuit has been filed against Horizon Hobby, LLC.
The case is styled as Joseph Guglielmo, on behalf of himself and
all others similarly situated, Plaintiff v. Horizon Hobby, LLC,
Defendant, Case No. 1:19-cv-11051 (S.D.N.Y., Dec. 2, 2019).
The Plaintiff filed the case under the Americans with Disabilities
Act.
Horizon Hobby, LLC. currently manufactures various hobby-grade
radio-controlled models, as well as Athearn model trains and
die-cast models, which it sells direct to consumers as well as to
hobby retailers.[BN]
The Plaintiff is represented by:
Russel Craig Weinrib, Esq.
Stein Saks PLLC
285 Passaic St., Suite 5
Hakensack, NJ 07601
Phone: (201) 282-6500
Email: rweinrib@steinsakslegal.com
HOSPITAL FOR SICK: CPA Suspends Limitation Period in Class Action
-----------------------------------------------------------------
Lauren Tomasich, Esq. -- ltomasich@osler.com -- and Waleed Malik,
Esq. -- wmalik@osler.com -- of Osler Hoskin & Harcourt LLP, in an
article for Lexology, reported that Section 28 of Ontario's Class
Proceedings Act (CPA) suspends limitation periods for causes of
action asserted in a class action. In RG v The Hospital for Sick
Children, Justice Perell found that this provision continues to
suspend a limitation period after a court refuses to certify a
class action. Justice Perell held that defendants must bring a
motion to discontinue the class action (which requires court
approval) for the limitation period clock to start running again,
admitting that this conclusion "may come as a surprise to the class
action bar."
Background: Flawed testing at Motherisk lab leads to litigation
This case related to flawed tests of hair samples at the Motherisk
Drug Testing Laboratory. Test results (which claimed to detect drug
and alcohol consumption) were used in family, child protection, and
criminal proceedings. The tests were shown to be unreliable in a
criminal appeal, resulting in an uproar. At least 28 separate
actions followed, including a class action commenced by RG.
Litigation history
RG first asked the Ontario Superior Court to certify her class
action. On November 1, 2017, Justice Perell dismissed her
certification motion (discussed in a previous post). That decision
was upheld on appeal.
After exhausting her appeal rights, RG moved for an order
continuing her personal action (which advanced the same claims as
her proposed class action) and joining her claim with approximately
200 other plaintiffs. The defendants opposed RG's motion and, among
other things, argued that many co-plaintiffs' claims were
statute-barred because the applicable limitation periods had
started running when RG's certification motion was dismissed. RG
disagreed and argued that the applicable limitation periods
remained suspended even after certification was denied.
Court decision: Limitation periods stayed suspended after
certification denied
Justice Perell agreed with RG. He noted that s. 28(2) of the CPA
sets out some circumstances where limitation periods start running
again (including a class member opting out or being excluded, and
the class action being decertified, dismissed without an
adjudication on the merits, discontinued or settled). Refusing
certification was not listed in s. 28(2) and therefore Justice
Perell found that his refusal to certify RG's class action did not
restart the limitation periods.
In addition, Justice Perell found that this interpretation was fair
to both plaintiffs and defendants. It was fair to plaintiffs
because it allows a court to order that notice be given before a
class action is dismissed and limitation periods resume. And it is
fair to defendants because they have the option of taking steps
that will restart limitation periods. In particular, Justice Perell
held that a defendant who wants to end the operation of s. 28 of
the CPA must bring a motion discontinuing the class action with
leave of the court under s. 29, either after or at the same time as
the certification motion is heard.
While Justice Perell found that the co-plaintiffs' claims were not
statute barred, he dismissed RG's motion to join their claims
because her pleadings did not include the facts necessary for
determining if the test for joining actions was met.
Conclusion
Section 28 is meant to prevent class members from rushing to file
potentially unnecessary individual claims if they are afraid of a
limitation period running out while they wait to find out if they
can be part a proposed class action. While Justice Perell's holding
was grounded in the wording of the provision, it does not appear to
be consistent with this purpose. As noted by the Supreme Court of
Canada in Canadian Imperial Bank of Commerce v Green, “[o]nce
certification is denied and appeals exhausted, the right to seek
justice through a class proceeding is no longer actively engaged”
and so the purpose of s. 28 is exhausted.
Even Justice Perell acknowledged that things are different once
certification is refused. While deciding RG's joinder motion, he
noted that her continued action would be an ordinary action and not
an action under the CPA. It seems odd that an ordinary action can
continue to trigger s. 28 of the CPA.
The continued suspension of limitation periods appears to be a
legislative gap in the CPA. However, unless this gap is closed on
appeal or by legislative amendment, defendants will continue to
face the risk of dormant claims coming out of the woodwork if they
don't act promptly to discontinue a class action and restart the
running of limitation periods after defeating a certification
motion.[GN]
INFOTECH SOLUTIONS: Faces Bollinger Suit Alleging FLSA Violation
----------------------------------------------------------------
SEAN BOLLINGER v. INFOTECH SOLUTIONS FOR BUSINESS INTERNATIONAL,
INC., MATTI KON, in his official and individual capacities, JOHN
DOES 1-10, AND XYZ CORP. 1-10, Case No. 2:19-cv-19509-ES-CLW
(S.D.N.Y., Oct. 29, 2019), is brought on behalf of the Plaintiff
and all others similarly situated seeking equitable and legal
relief for violations of the Fair Labor Standards Act of 1938 and
the New York Labor Law.
The Plaintiff, a resident of Bloomfield, New Jersey, previously
worked for InfoTech at a New York City location. He alleges that
the Defendants failed to pay him in a timely manner and that they
have not paid all wages owed to him.
InfoTech is a corporation that provides information technology and
develops software with its corporate headquarters located in New
York City.[BN]
The Plaintiff is represented by:
Ty Hyderally, Esq.
HYDERALLY & ASSOCIATES, P.C.
33 Plymouth Street, Suite 202
Montclair, NJ 07042
Telephone (973) 509-8500
Facsimile (973) 509-8501
E-mail: tyh@employmentlit.com
- and -
Edward F. Westfield, Esq.
HYDERALLY & ASSOCIATES, P.C.
6218 Riverdale Avenue
Riverdale, NY 10471
Telephone: (718) 601-1100
Facsimile: (212) 601-1200
E-mail: efw@efwpc.com
IROBOT CORP: Schall Law Firm Investigates Securities Claims
-----------------------------------------------------------
The Schall Law Firm, a national shareholder rights litigation firm,
on Oct. 28 disclosed that it is investigating claims on behalf of
investors of iRobot Corporation ("iRobot" or "the Company")
(NASDAQ:IRBT) for violations of securities laws.
We also encourage you to contact Brian Schall of the Schall Law
Firm, 1880 Century Park East, Suite 404, Los Angeles, CA 90067, at
424-303-1964, to discuss your rights free of charge. You can also
reach us through the firm's website at www.schallfirm.com, or by
email at brian@schallfirm.com.
The class in this case has not yet been certified, and until
certification occurs, you are not represented by an attorney. If
you choose to take no action, you can remain an absent class
member.
The Schall Law Firm represents investors around the world and
specializes in securities class action lawsuits and shareholder
rights litigation.
This press release may be considered Attorney Advertising in some
jurisdictions under the applicable law and rules of ethics.
CONTACT:
The Schall Law Firm
Brian Schall, Esq.
310-301-3335
Cell: 424-303-1964
info@schallfirm.com
www.schallfirm.com
[GN]
JUUL LABS: Baron & Budd Files Class Action on Behalf of LAUSD
-------------------------------------------------------------
The national law firm of Baron & Budd filed a class action lawsuit
on behalf of the Los Angeles Unified School District (Los Angeles
Unified) against JUUL Labs, Inc., the leading e-cigarette
manufacturer, for creating an epidemic of youth vaping that has
infiltrated the second-largest school district in the country,
impeding student learning and putting the health and safety of
nearly 600,000 Los Angeles Unified students at risk. The District
is represented in the matter by attorneys John Fiske and Scott
Summy of Baron & Budd, P.C.; Brian Panish, Rahul Ravipudi and Jesse
Creed of Panish Shea & Boyle LLP; and David Holmquist, Alexander
Molina, and Devora Navera Reed of the Office of General Counsel for
Los Angeles Unified School District.
"We filed a lawsuit against JUUL Labs, Inc. to recover costs and
expenses spent battling the e-cigarette epidemic among students in
Los Angeles," Baron & Budd Shareholder John Fiske said. "Our
students and communities deserve better, and JUUL Labs must right
this wrong."
"JUUL designed its device and used deceptive marketing to entice
and sustain an entire generation of underage consumers into
nicotine addiction," said Baron & Budd Shareholder Scott Summy. "We
intend to hold JUUL accountable for its role in the vaping crisis
that has affected our youth, our schools, and families across the
country who are combating the real and life-threatening
consequences of JUUL's irresponsible practices."
Los Angeles Unified School District v. JUUL Labs, Inc. et al
Superior Court in the State of California, County of San
Bernardino, San Bernardino District Court
Case No.: CIV DS 1932301
According to the District, student vaping incidences throughout Los
Angeles Unified have increased tenfold since 2013. During the
2018-19 academic year alone, there were 435 critical incidents
reported; however, these numbers dramatically underestimate the
total incidences of vaping and e-cigarette use on campus, as they
reflect only critical incidents reported by principals. By the end
of the current school year, the number of critical incidents is
expected to be substantially higher.
As alleged in the complaint, the vaping epidemic has, and will,
continue to challenge the academic achievements of all Los Angeles
Unified students as the District is forced to divert its resources,
time and effort to combat the issue. Not only has vaping affected
individual learning, it has led to a rise in student absences due
to disciplinary action or sickness, which in turn causes a
reduction in District state funding. Funds typically used for
classroom instruction are now being diverted for educational
campaigns, prevention and treatment for student vaping as well as
the launch of an internal task force of administrators and staff to
enforce vaping restrictions and dispose of vaping paraphernalia on
campus. District property has also been affected as student
bathrooms -- often referred to as the "JUUL room" -- cannot be
utilized due to high instances of bathroom vaping.
The District anticipates the need to create and fund intervention
and cessation and treatment programs as it plans for the
devastating impacts of a "JUULing future."
About Baron & Budd, P.C.
Baron & Budd, P.C. is among the largest and most accomplished
plaintiffs' law firms in the country. With more than 40 years of
experience, Baron & Budd has the expertise and resources to handle
complex litigation throughout the United States. As a law firm that
takes pride in remaining at the forefront of litigation, Baron &
Budd has spearheaded many significant cases for hundreds of
entities and thousands of individuals. Since the firm was founded
in 1977, Baron & Budd has achieved substantial national acclaim for
its work on cutting-edge litigation, trying hundreds of cases to
verdict and settling tens of thousands of cases in areas of
litigation as diverse and significant as dangerous and highly
addictive pharmaceuticals, defective medical devices, asbestos and
mesothelioma, California wildfires and environmental contamination,
fraudulent banking practices,
e-cigarettes, motor vehicles, federal whistleblower cases, and
other consumer fraud issues.
About Panish Shea & Boyle LLP
Panish Shea & Boyle LLP is a nationally recognized personal injury
law firm representing plaintiffs in catastrophic injury, wrongful
death, product liability, mass torts/class action, and business
litigation cases. Firm attorneys have obtained some of the most
significant awards for plaintiffs in U.S. history, including a $4.9
billion verdict in Anderson v. GM, and are repeatedly recognized
for excellence by other trial attorneys, legal organizations and
publications nationwide. The firm is ranked by U.S. News & World
Report and Best Lawyers(R) as a "Tier 1" Firm -- the highest
ranking a firm can receive -- in the areas of Plaintiffs Mass Tort
Litigation/Class Actions, Plaintiffs Personal Injury Litigation and
Plaintiffs Product Liability Litigation, and is recognized as being
among the top Plaintiff's law firms in the country by the National
Law Journal. [GN]
JUUL LABS: Colorado Teen Files Suit Over Nicotine Addiction
-----------------------------------------------------------
John Daley, writing for CPR News, reports that a Colorado resident
is suing JUUL Labs. Nineteen-year-old Mohammed Aldawoodi alleges
his use of the popular brand of e-cigarette has caused him to
suffer from nicotine addiction and severe injuries.
Lawyers for Aldawoodi filed the suit in the U.S. District Court in
Colorado. JUUL Labs is based in San Francisco, California.
The suit says the teenager first began to use JUUL about three
years ago when he was still a minor. In addition to his nicotine
addiction, he said his use caused "severe and permanent personal
injuries, pain, suffering and emotional distress."
The complaint argues the e-cigarette giant fraudulently said its
product did not have a high risk of nicotine addiction in
adolescents, targeted adolescents with misleading marketing
campaigns and sold JUUL pods to minors over the internet.
Aldawoodi's attorney, Seth Katz, declined to comment and said he's
not able to discuss the facts of the case at this point.
JUUL has not yet responded to a request for comment.
In recent months, the company has faced an increasing number of
lawsuits like this one. A class-action suit was filed in Florida in
May on behalf of a 15-year-old who became addicted to JUUL,
alleging it caused her to suffer seizures. A woman from Florida
filed the first wrongful death lawsuit against the company in early
October. She said her 18-year-old son died due to electronic
cigarettes, which sentenced her to "a life of sadness."
Three school districts in the Midwest also filed suit against Juul
in early October, accusing it of putting students in danger and
causing educators to divert time and money to battle an epidemic of
nicotine addiction.
A number of state attorneys general, including Phil Weiser in
Colorado, have also opened investigations into the company. [GN]
JUUL LABS: Panish Shea Files Class Action on Behalf of LAUSD
------------------------------------------------------------
The Los Angeles Unified School District (Los Angeles Unified) has
filed a class action lawsuit against JUUL Labs, Inc., the leading
e-cigarette manufacturer, for creating an epidemic of youth vaping
that has infiltrated the second-largest school district in the
country, impeding student learning and putting the health and
safety of more than 600,000 Los Angeles Unified students at risk.
The District is represented in the matter by attorneys Brian
Panish, Rahul Ravipudi and Jesse Creed of Panish Shea & Boyle LLP,
John Fiske and Scott Summy of Baron & Budd, P.C., and David
Holmquist, Alexander Molina and Devora Navera Reed of the Office of
General Counsel for the Los Angeles Unified School District.
"We are here to join others in the cause to stop this epidemic,"
Los Angeles Unified Superintendent Austin Beutner said. "The money
we are spending to deal with the trauma vaping is bringing into our
schools is money not spent on instruction. By filing this lawsuit,
we are taking a step toward ensuring those responsible will pay the
price to repair the harm done to our students, our schools and the
communities we serve."
According to the District, student vaping incidences throughout Los
Angeles Unified have increased tenfold since 2013. During the
2018-19 academic year alone, there were approximately 435 critical
incidents reported; however, these numbers dramatically
underestimate the total incidences of vaping and e-cigarette use on
campus, as they reflect only critical incidents reported by
principals. By the end of the current school year, the number of
critical incidents is expected to be substantially higher.
"JUUL designed its device and used deceptive marketing to entice
and sustain an entire generation of underage consumers into
nicotine addiction," attorney Brian Panish said. "We intend to hold
JUUL accountable for its role in the vaping crisis that has
affected our youth, our schools, and families across the country
who are combating the real and life-threatening consequences of
JUUL's irresponsible practices."
As alleged in the complaint, the vaping epidemic has, and will,
continue to challenge the academic achievements of all Los Angeles
Unified students as the District is forced to divert its resources,
time and effort to combat the issue. Not only has vaping affected
individual learning, it has led to a rise in student absences,
which in turn causes a reduction in District state funding. Funds
typically used for classroom instruction are now being diverted for
educational campaigns, prevention and treatment for student vaping
as well as the launch of an internal task force of administrators
and staff to enforce vaping restrictions and dispose of vaping
paraphernalia on campus. District property has also been affected
as some student bathrooms -- often referred to as the "JUUL room"
-- cannot be utilized due to high instances of bathroom vaping.
The District recognizes there is an increasing and immediate need
to create and fund intervention, cessation and treatment programs
for Los Angeles Unified students as it plans for the devastating
impacts of a "JUULing future."
Los Angeles Unified School District v. JUUL Labs, Inc. et al
Superior Court in the State of California, County of San
Bernardino, San Bernardino District Court
Case No.: CIV DS 1932301
About Panish Shea & Boyle LLP
Panish Shea & Boyle LLP is a nationally recognized personal injury
law firm representing plaintiffs in catastrophic injury, wrongful
death, product liability, mass torts/class action, and business
litigation cases. Firm attorneys have obtained some of the most
significant awards for plaintiffs in U.S. history, including a $4.9
billion verdict in Anderson v. GM, and are repeatedly recognized
for excellence by other trial attorneys, legal organizations and
publications nationwide. The firm is ranked by U.S. News & World
Report and Best Lawyers(R) as a "Tier 1" Firm -- the highest
ranking a firm can receive -- in the areas of Plaintiffs Mass Tort
Litigation/Class Actions, Plaintiffs Personal Injury Litigation and
Plaintiffs Product Liability Litigation, and is recognized as being
among the top Plaintiff's law firms in the country by the National
Law Journal.
About Baron & Budd, P.C.
Baron & Budd, P.C. is among the largest and most accomplished
plaintiffs' law firms in the country. With 40 years of experience,
Baron & Budd has the expertise and resources to handle complex
litigation throughout the United States. As a law firm that takes
pride in remaining at the forefront of litigation, Baron & Budd has
spearheaded many significant cases for entities and individuals.
Since the firm was founded in 1977, Baron & Budd has achieved
substantial national acclaim for its work on cutting-edge
litigation, trying hundreds of cases to verdict and settling tens
of thousands of cases in areas of litigation as diverse as
pharmaceuticals and defective medical devices, asbestos and
mesothelioma, water contamination, fraudulent banking practices,
motor vehicles, employment, and other consumer fraud issues.
KNOLLWOOD ROAD: Lara Seeks to Recover Minimum and Overtime Wages
----------------------------------------------------------------
SERGIO CALDERON LARA, JESUS MISARAY, BERNARDO SEGURA LARA, and
JORGE GRANADOS, individually and on behalf of others similarly
situated v. KNOLLWOOD ROAD DELICATESSEN INC. (D/B/A KNOLLWOOD
GOURMET DELI), JOHN DOE CORP. (D/B/A G & J DELI), GERARD FLETCHER,
TIMOTHY FLETCHER, GAMEL C. SALEH (A.K.A. MOE), and KARMEN DOE, Case
No. 1:19-cv-09996 (S.D.N.Y., Oct. 29, 2019), seeks to recover
unpaid minimum and overtime wages under the Fair Labor Standards
Act and the New York Labor Law.
The Defendants own(ed), operate(d), or control(led) two delis,
located at 1155 Knollwood Road, in White Plains, New York, under
the name "Knollwood Gourmet Deli," and at 2739 White Plains Road,
in Bronx, New York, under the name "G & J Deli Grocery."
The Plaintiffs are both current and former employees of the
Defendants, and are/were employed as cooks, grill men and deli
workers at the Delis.
The Plaintiffs allege that they worked for the Defendants in excess
of 40 hours per week, without appropriate minimum wage, overtime,
and spread of hours compensation for the hours that they
worked.[BN]
The Plaintiffs are represented by:
Michael Faillace, Esq.
MICHAEL FAILLACE & ASSOCIATES, P.C.
60 East 42nd Street, Suite 4510
New York, NY 10165
Telephone: (212) 317-1200
Facsimile: (212) 317-1620
E-mail: Michael@Faillacelaw.com
MDL 1869: D.C. Circuit Tosses Class Certification
-------------------------------------------------
Kendall E. Waters, Esq. -- kwaters@foley.com -- of Foley & Lardner
LLP, in an article for The National Law Review, report that the
D.C. Circuit avoided taking a side in the widening circuit split
over the evidentiary standards applicable to expert testimony at
the class certification stage. In In re Rail Freight Fuel Surcharge
Antitrust Litig. - MDL No. 1869, 934 F.3d 619 (D.C. Cir. 2019), the
court declined to formally adopt a position on whether Daubert
applies to expert testimony at the class certification stage. While
the panel stated that a critical analysis of an expert's model may
be applicable at the class certification stage, it expressly
declined to formally decide whether the expert testimony must be
admissible. Id. at 623.
Notably, though not addressing whether a full Daubert analysis
applies, the D.C. Circuit held that the class expert's regression
analysis for proving causation, injury, and damages on a classwide
basis, even if sufficiently reliable, did not prove damages for all
class members. Instead, the proposed model measured negative
damages for over 2,000 members of the proposed class. This lack of
uniformity -- with over 12% of the class unaccounted for -- failed
to satisfy Rule 23's predominance requirement because common
questions could not "predominate where there exists no reliable
means of proving classwide injury in fact." Without proffering
another model to account for injuries on a classwide basis, the
class could not stand.
In contrast to the D.C. Circuit's avoidance of the admissibility
standard for experts at the class certification stage, last year we
reported that the 9th Circuit held that expert evidence offered in
support of class certification need not be admissible at trial. The
Ninth Circuit in Sali v. Corona Regional Medical Center, 889 F.3d
623 (9th Cir. 2018), reasoned that "[a]pplying the formal
strictures of trial to such an early stage of litigation makes
little common sense. Because a class certification decision is far
from a conclusive judgment on the merits of the case, it is of
necessity[ ] not accompanied by the traditional rules and procedure
applicable to civil trials." The Ninth Circuit represents the
minority position on this issue, joined only by the Eighth Circuit.
The Second, Third, Fifth, Seventh, and Eleventh Circuits subject
class certification expert evidence to more rigorous scrutiny.
Supreme Court guidance suggests that the Court may be in favor of
applying Daubert at the class certification stage, but it has not
definitively ruled on the issue. Wal-Mart Stores, Inc. v. Dukes,
131 S. Ct. 2541, 2553-54 (2011) ("The District Court concluded that
Daubert did not apply to expert testimony at the certification
stage of class-action proceedings. We doubt that is so . . . ."
(internal citation omitted). Given the existing circuit split,
until this issue is resolved by the Supreme Court, clients,
counsel, and the court should thoughtfully consider their ability
to dispute proffered expert models at class certification. [GN]
MDL 2492: Alexander Suit v. NCAA Over Health Issues Consolidated
----------------------------------------------------------------
The case titled Marcelious Alexander, individually and on behalf of
all similarly situated individuals, Plaintiff v. NATIONAL
COLLEGIATE ATHLETIC ASSOCIATION, Defendant, Case No. 1:19-cv-04190
(Filed Oct. 11, 2019), was transferred from the U.S. District Court
for the Southern District of Indiana to the U.S. District Court for
the Northern District of Illinois (Chicago) on Nov. 7, 2019.
The Northern District of Illinois Court Clerk assigned Case No.
1:19-cv-07353 the proceeding.
The Plaintiff brings this class action complaint against NCAA to
obtain redress for injuries sustained as result of the Defendant's
reckless disregard for the health and safety of generations of
student-athletes.
The Alexander case is being consolidated with MDL No. 2492, Re:
NATIONAL COLLEGIATE ATHLETIC ASSOCIATION STUDENT-ATHLETE CONCUSSION
INJURY LITIGATION. The MDL was created by Order of the United
States Judicial Panel on Multidistrict Litigation on Dec. 18, 2013.
These actions seek medical monitoring for putative classes of
former student athletes at NCAA-member schools who allege they
suffered concussions. The Plaintiffs allege that the NCAA concealed
information about the risks of the long-term effects of concussion
injuries. Opponents to centralization argue, inter alia, that (1)
the putative classes and claims alleged in these actions do not
sufficiently overlap; and (2) given the small number of actions
pending, alternatives to centralization are preferable. Opponents'
arguments, while persuasive when the Section 1407 motion was first
filed, are less compelling now given the current state of the
litigation, the Panel said.
Since the motion for centralization was filed, an additional eight
related actions have been filed, most alleging overlapping putative
classes of former football players at NCAA-member schools. The
Northern District of Illinois Arrington action involves
student-athletes who participated in additional sports, and the
putative class alleged in that action is more limited in scope.
Most of the actions now pending, however, involve nearly completely
overlapping putative classes and claims. Moreover, the Panel is
persuaded that the overlap between Arrington and the remaining
actions is sufficient to warrant centralization. Regardless of the
scope of the putative classes alleged, all actions share common
factual questions concerning the NCAA's knowledge of the risks of
concussions in football players and its policies governing the
protection of players from such injuries. The Plaintiffs in all
actions seek medical monitoring for putative class members.
In its Dec. 18, 2013 Order, the MDL Panel found that the these
actions involve common questions of fact, and that centralization
in the Northern District of Illinois will serve the convenience of
the parties and witnesses and promote the just and efficient
conduct of this litigation. These actions share factual questions
relating to allegations against the NCAA stemming from injuries
sustained while playing sports at NCAA-member institutions,
including damages resulting from the permanent long-term effects of
concussions. Centralization will eliminate duplicative discovery;
prevent inconsistent pretrial rulings, including with respect to
class certification; and conserve the resources of the parties,
their counsel, and the judiciary. Presiding Judge in the MDL is
Hon. Judge John Z. Lee Paul. The lead case is 1:16-cv-08727.
NCAA is a non-profit organization which regulates athletes of 1,268
North American institutions and conferences.[BN]
The Plaintiff is represented by:
Jeff Raizner, Esq.
RAIZNER SLANIA LLP
2402 Dunlavy Street
Houston, TX 77006
Telephone: (713) 554-9099
Facsimile: (713) 554-9098
E-mail: jraizner@raiznerlaw.com
MDL 2492: Amell Suit v. NCAA Over Health Issues Consolidated
------------------------------------------------------------
The case styled JARED AMELL, individually and on behalf of all
similarly situated individuals, Plaintiff v. NATIONAL COLLEGIATE
ATHLETIC ASSOCIATION, and St. Lawrence University, Defendants, Case
No. 1:19-cv-04190, was transferred from the U.S. District Court for
the Southern District of Indiana to the U.S. District Court for the
Northern District of Illinois (Chicago) on Nov. 7, 2019.
The Northern District of Illinois Court Clerk assigned Case No.
1:19-cv-07351 the proceeding.
The Plaintiff brings this class action complaint against the
Defendants to obtain redress for injuries sustained as result of
their reckless disregard for the health and safety of generations
of student-athletes.
The Amell case is being consolidated with MDL No. 2492, In Re:
NATIONAL COLLEGIATE ATHLETIC ASSOCIATION STUDENT-ATHLETE CONCUSSION
INJURY LITIGATION. The MDL was created by Order of the United
States Judicial Panel on Multidistrict Litigation on Dec. 18, 2013.
These actions seek medical monitoring for putative classes of
former student athletes at NCAA-member schools, who allege they
suffered concussions. The Plaintiffs allege that the NCAA concealed
information about the risks of the long-term effects of concussion
injuries. Opponents to centralization argue, inter alia, that (1)
the putative classes and claims alleged in these actions do not
sufficiently overlap; and (2) given the small number of actions
pending, alternatives to centralization are preferable. Opponents'
arguments, while persuasive when the Section 1407 motion was first
filed, are less compelling now given the current state of the
litigation, the Panel said.
Since the motion for centralization was filed, an additional eight
related actions have been filed, most alleging overlapping putative
classes of former football players at NCAA-member schools. The
Northern District of Illinois Arrington action involves
student-athletes, who participated in additional sports, and the
putative class alleged in that action is more limited in scope.
Most of the actions now pending, however, involve nearly completely
overlapping putative classes and claims. Moreover, the Panel is
persuaded that the overlap between Arrington and the remaining
actions is sufficient to warrant centralization. Regardless of the
scope of the putative classes alleged, all actions share common
factual questions concerning the NCAA's knowledge of the risks of
concussions in football players and its policies governing the
protection of players from such injuries. The Plaintiffs in all
actions seek medical monitoring for putative class members.
In its Dec. 18, 2013 Order, the MDL Panel found that the these
actions involve common questions of fact, and that centralization
in the Northern District of Illinois will serve the convenience of
the parties and witnesses and promote the just and efficient
conduct of this litigation. These actions share factual questions
relating to allegations against the NCAA stemming from injuries
sustained while playing sports at NCAA-member institutions,
including damages resulting from the permanent long-term effects of
concussions. Centralization will eliminate duplicative discovery;
prevent inconsistent pretrial rulings, including with respect to
class certification; and conserve the resources of the parties,
their counsel, and the judiciary. Presiding Judge in the MDL is
Hon. Judge John Z. Lee Paul. The lead case is 1:16-cv-08727.
NCAA is a non-profit organization, which regulates athletes of
1,268 North American institutions and conferences.[BN]
The Plaintiff is represented by:
Jeff Raizner, Esq.
RAIZNER SLANIA LLP
2402 Dunlavy Street
Houston, TX 77006
Telephone: (713) 554-9099
Facsimile: (713) 554-9098
E-mail: jraizner@raiznerlaw.com
MDL 2492: Bates Suit v. NCAA Over Health Issues Consolidated
------------------------------------------------------------
The case titled TIMOTHY BATES, individually and on behalf of all
similarly situated individuals, Plaintiff v. NATIONAL COLLEGIATE
ATHLETIC ASSOCIATION, Defendant, Case No. 1:19-cv-03275 (Filed Aug.
5, 2019), was transferred from the U.S. District Court for the
Southern District of Indiana to the U.S. District Court for the
Northern District of Illinois (Chicago) on Nov. 7, 2019.
The Northern District of Illinois Court Clerk assigned Case No.
1:19-cv-07333 the proceeding.
The Plaintiff brings this class action complaint against NCAA to
obtain redress for injuries sustained as result of its reckless
disregard for the health and safety of generations of
student-athletes.
The Bates case is being consolidated with MDL No. 2492, In Re:
NATIONAL COLLEGIATE ATHLETIC ASSOCIATION STUDENT-ATHLETE CONCUSSION
INJURY LITIGATION. The MDL was created by Order of the United
States Judicial Panel on Multidistrict Litigation on Dec. 18, 2013.
These actions seek medical monitoring for putative classes of
former student athletes at NCAA-member schools, who allege they
suffered concussions. The Plaintiffs allege that the NCAA concealed
information about the risks of the long-term effects of concussion
injuries. Opponents to centralization argue, inter alia, that (1)
the putative classes and claims alleged in these actions do not
sufficiently overlap; and (2) given the small number of actions
pending, alternatives to centralization are preferable. Opponents'
arguments, while persuasive when the Section 1407 motion was first
filed, are less compelling now given the current state of the
litigation, the Panel said.
Since the motion for centralization was filed, an additional eight
related actions have been filed, most alleging overlapping putative
classes of former football players at NCAA-member schools. The
Northern District of Illinois Arrington action involves
student-athletes, who participated in additional sports, and the
putative class alleged in that action is more limited in scope.
Most of the actions now pending, however, involve nearly completely
overlapping putative classes and claims. Moreover, the Panel is
persuaded that the overlap between Arrington and the remaining
actions is sufficient to warrant centralization. Regardless of the
scope of the putative classes alleged, all actions share common
factual questions concerning the NCAA's knowledge of the risks of
concussions in football players and its policies governing the
protection of players from such injuries. The Plaintiffs in all
actions seek medical monitoring for putative class members.
In its Dec. 18, 2013 Order, the MDL Panel found that the these
actions involve common questions of fact, and that centralization
in the Northern District of Illinois will serve the convenience of
the parties and witnesses and promote the just and efficient
conduct of this litigation. These actions share factual questions
relating to allegations against the NCAA stemming from injuries
sustained while playing sports at NCAA-member institutions,
including damages resulting from the permanent long-term effects of
concussions. Centralization will eliminate duplicative discovery;
prevent inconsistent pretrial rulings, including with respect to
class certification; and conserve the resources of the parties,
their counsel, and the judiciary. Presiding Judge in the MDL is
Hon. Judge John Z. Lee Paul. The lead case is 1:16-cv-08727.
NCAA is a non-profit organization, which regulates athletes of
1,268 North American institutions and conferences.[BN]
The Plaintiff is represented by:
Jeff Raizner, Esq.
RAIZNER SLANIA LLP
2402 Dunlavy Street
Houston, TX 77006
Telephone: (713) 554-9099
Facsimile: (713) 554-9098
E-mail: jraizner@raiznerlaw.com
MDL 2492: Deptula Suit v. NCAA Over Health Issues Consolidated
--------------------------------------------------------------
The case captioned DAVID DEPTULA, individually and on behalf of all
similarly situated individuals, Plaintiff v. NATIONAL COLLEGIATE
ATHLETIC ASSOCIATION, Defendant, Case No. 1:19-cv-04186 (Filed Oct.
11, 2019), was transferred from the U.S. District Court for the
Southern District of Indiana to the U.S. District Court for the
Northern District of Illinois (Chicago) on Nov. 7, 2019.
The Northern District of Illinois Court Clerk assigned Case No.
1:19-cv-07345 the proceeding.
The Plaintiff brings this class action complaint against NCAA to
obtain redress for injuries sustained as result of its reckless
disregard for the health and safety of generations of
student-athletes.
The Deptula case is being consolidated with MDL No. 2492, In Re:
NATIONAL COLLEGIATE ATHLETIC ASSOCIATION STUDENT-ATHLETE CONCUSSION
INJURY LITIGATION. The MDL was created by Order of the United
States Judicial Panel on Multidistrict Litigation on Dec. 18, 2013.
These actions seek medical monitoring for putative classes of
former student athletes at NCAA-member schools, who allege they
suffered concussions. The Plaintiffs allege that the NCAA concealed
information about the risks of the long-term effects of concussion
injuries. Opponents to centralization argue, inter alia, that (1)
the putative classes and claims alleged in these actions do not
sufficiently overlap; and (2) given the small number of actions
pending, alternatives to centralization are preferable. Opponents'
arguments, while persuasive when the Section 1407 motion was first
filed, are less compelling now given the current state of the
litigation, the Panel said.
Since the motion for centralization was filed, an additional eight
related actions have been filed, most alleging overlapping putative
classes of former football players at NCAA-member schools. The
Northern District of Illinois Arrington action involves
student-athletes, who participated in additional sports, and the
putative class alleged in that action is more limited in scope.
Most of the actions now pending, however, involve nearly completely
overlapping putative classes and claims. Moreover, the Panel is
persuaded that the overlap between Arrington and the remaining
actions is sufficient to warrant centralization. Regardless of the
scope of the putative classes alleged, all actions share common
factual questions concerning the NCAA's knowledge of the risks of
concussions in football players and its policies governing the
protection of players from such injuries. The Plaintiffs in all
actions seek medical monitoring for putative class members.
In its Dec. 18, 2013 Order, the MDL Panel found that the these
actions involve common questions of fact, and that centralization
in the Northern District of Illinois will serve the convenience of
the parties and witnesses and promote the just and efficient
conduct of this litigation. These actions share factual questions
relating to allegations against the NCAA stemming from injuries
sustained while playing sports at NCAA-member institutions,
including damages resulting from the permanent long-term effects of
concussions. Centralization will eliminate duplicative discovery;
prevent inconsistent pretrial rulings, including with respect to
class certification; and conserve the resources of the parties,
their counsel, and the judiciary. Presiding Judge in the MDL is
Hon. Judge John Z. Lee Paul. The lead case is 1:16-cv-08727.
NCAA is a non-profit organization, which regulates athletes of
1,268 North American institutions and conferences.[BN]
The Plaintiff is represented by:
Jeff Raizner, Esq.
RAIZNER SLANIA LLP
2402 Dunlavy Street
Houston, TX 77006
Telephone: (713) 554-9099
Facsimile: (713) 554-9098
E-mail: jraizner@raiznerlaw.com
MDL 2492: Dimmack Suit v. NCAA Over Health Issues Consolidated
--------------------------------------------------------------
The case entitled CHRISTOPHER DIMMACK, individually and on behalf
of all similarly situated individuals, Plaintiff v. NATIONAL
COLLEGIATE ATHLETIC ASSOCIATION, and WASHINGTON AND JEFFERSON
COLLEGE, Defendants, Case No. 1:19-cv-04188 (Filed Oct. 11, 2019),
was transferred from the U.S. District Court for the Southern
District of Indiana to the U.S. District Court for the Northern
District of Illinois (Chicago) on Nov. 7, 2019.
The Northern District of Illinois Court Clerk assigned Case No.
1:19-cv-07349 the proceeding.
The Plaintiff brings this class action complaint against the
Defendants to obtain redress for injuries sustained as result of
their reckless disregard for the health and safety of generations
of student-athletes.
The Dimmack case is being consolidated with MDL No. 2492, In Re:
NATIONAL COLLEGIATE ATHLETIC ASSOCIATION STUDENT-ATHLETE CONCUSSION
INJURY LITIGATION. The MDL was created by Order of the United
States Judicial Panel on Multidistrict Litigation on Dec. 18, 2013.
These actions seek medical monitoring for putative classes of
former student athletes at NCAA-member schools, who allege they
suffered concussions. The Plaintiffs allege that the NCAA concealed
information about the risks of the long-term effects of concussion
injuries. Opponents to centralization argue, inter alia, that (1)
the putative classes and claims alleged in these actions do not
sufficiently overlap; and (2) given the small number of actions
pending, alternatives to centralization are preferable. Opponents'
arguments, while persuasive when the Section 1407 motion was first
filed, are less compelling now given the current state of the
litigation, the Panel said.
Since the motion for centralization was filed, an additional eight
related actions have been filed, most alleging overlapping putative
classes of former football players at NCAA-member schools. The
Northern District of Illinois Arrington action involves
student-athletes, who participated in additional sports, and the
putative class alleged in that action is more limited in scope.
Most of the actions now pending, however, involve nearly completely
overlapping putative classes and claims. Moreover, the Panel is
persuaded that the overlap between Arrington and the remaining
actions is sufficient to warrant centralization. Regardless of the
scope of the putative classes alleged, all actions share common
factual questions concerning the NCAA's knowledge of the risks of
concussions in football players and its policies governing the
protection of players from such injuries. The Plaintiffs in all
actions seek medical monitoring for putative class members.
In its Dec. 18, 2013 Order, the MDL Panel found that the these
actions involve common questions of fact, and that centralization
in the Northern District of Illinois will serve the convenience of
the parties and witnesses and promote the just and efficient
conduct of this litigation. These actions share factual questions
relating to allegations against the NCAA stemming from injuries
sustained while playing sports at NCAA-member institutions,
including damages resulting from the permanent long-term effects of
concussions. Centralization will eliminate duplicative discovery;
prevent inconsistent pretrial rulings, including with respect to
class certification; and conserve the resources of the parties,
their counsel, and the judiciary. Presiding Judge in the MDL is
Hon. Judge John Z. Lee Paul. The lead case is 1:16-cv-08727.
NCAA is a non-profit organization, which regulates athletes of
1,268 North American institutions and conferences.[BN]
The Plaintiff is represented by:
Jeff Raizner, Esq.
RAIZNER SLANIA LLP
2402 Dunlavy Street
Houston, TX 77006
Telephone: (713) 554-9099
Facsimile: (713) 554-9098
E-mail: jraizner@raiznerlaw.com
MDL 2492: Justice Suit v. NCAA Over Health Issues Consolidated
--------------------------------------------------------------
The case styled MELVIN JUSTICE, individually and on behalf of all
similarly situated individuals, Plaintiff v. NATIONAL COLLEGIATE
ATHLETIC ASSOCIATION, and BROWN UNIVERSITY, Defendants, Case No.
1:19-cv-04192 (Filed Oct. 11, 2019), was transferred from the U.S.
District Court for the Southern District of Indiana to the U.S.
District Court for the Northern District of Illinois (Chicago) on
Nov. 7, 2019.
The Northern District of Illinois Court Clerk assigned Case No.
1:19-cv-07358 the proceeding.
The Plaintiff brings this class action complaint against the
Defendants to obtain redress for injuries sustained as result of
their reckless disregard for the health and safety of generations
of student-athletes.
The Justice case is being consolidated with MDL No. 2492, In Re:
NATIONAL COLLEGIATE ATHLETIC ASSOCIATION STUDENT-ATHLETE CONCUSSION
INJURY LITIGATION. The MDL was created by Order of the United
States Judicial Panel on Multidistrict Litigation on Dec. 18, 2013.
These actions seek medical monitoring for putative classes of
former student athletes at NCAA-member schools, who allege they
suffered concussions. The Plaintiffs allege that the NCAA concealed
information about the risks of the long-term effects of concussion
injuries. Opponents to centralization argue, inter alia, that (1)
the putative classes and claims alleged in these actions do not
sufficiently overlap; and (2) given the small number of actions
pending, alternatives to centralization are preferable. Opponents'
arguments, while persuasive when the Section 1407 motion was first
filed, are less compelling now given the current state of the
litigation, the Panel said.
Since the motion for centralization was filed, an additional eight
related actions have been filed, most alleging overlapping putative
classes of former football players at NCAA-member schools. The
Northern District of Illinois Arrington action involves
student-athletes, who participated in additional sports, and the
putative class alleged in that action is more limited in scope.
Most of the actions now pending, however, involve nearly completely
overlapping putative classes and claims. Moreover, the Panel is
persuaded that the overlap between Arrington and the remaining
actions is sufficient to warrant centralization. Regardless of the
scope of the putative classes alleged, all actions share common
factual questions concerning the NCAA's knowledge of the risks of
concussions in football players and its policies governing the
protection of players from such injuries. The Plaintiffs in all
actions seek medical monitoring for putative class members.
In its Dec. 18, 2013 Order, the MDL Panel found that the these
actions involve common questions of fact, and that centralization
in the Northern District of Illinois will serve the convenience of
the parties and witnesses and promote the just and efficient
conduct of this litigation. These actions share factual questions
relating to allegations against the NCAA stemming from injuries
sustained while playing sports at NCAA-member institutions,
including damages resulting from the permanent long-term effects of
concussions. Centralization will eliminate duplicative discovery;
prevent inconsistent pretrial rulings, including with respect to
class certification; and conserve the resources of the parties,
their counsel, and the judiciary. Presiding Judge in the MDL is
Hon. Judge John Z. Lee Paul. The lead case is 1:16-cv-08727.
NCAA is a non-profit organization, which regulates athletes of
1,268 North American institutions and conferences.[BN]
The Plaintiff is represented by:
Jeff Raizner, Esq.
RAIZNER SLANIA LLP
2402 Dunlavy Street
Houston, TX 77006
Telephone: (713) 554-9099
Facsimile: (713) 554-9098
E-mail: jraizner@raiznerlaw.com
MDL 2492: Leiss Suit v. NCAA Over Health Issues Consolidated
------------------------------------------------------------
The case titled CHRISTOPHER LEISS, individually and on behalf of
all similarly situated individuals, Plaintiff v. NATIONAL
COLLEGIATE ATHLETIC ASSOCIATION, Defendant, Case No. 1:19-cv-03446
(Filed Aug. 13, 2019), was transferred from the U.S. District Court
for the Southern District of Indiana to the U.S. District Court for
the Northern District of Illinois (Chicago) on Nov. 7, 2019.
The Northern District of Illinois Court Clerk assigned Case No.
1:19-cv-07340 to the proceeding.
The Plaintiff brings this class action complaint against NCAA to
obtain redress for injuries sustained as result of its reckless
disregard for the health and safety of generations of
student-athletes.
The Leiss case is being consolidated with MDL No. 2492, In Re:
NATIONAL COLLEGIATE ATHLETIC ASSOCIATION STUDENT-ATHLETE CONCUSSION
INJURY LITIGATION. The MDL was created by Order of the United
States Judicial Panel on Multidistrict Litigation on Dec. 18, 2013.
These actions seek medical monitoring for putative classes of
former student athletes at NCAA-member schools, who allege they
suffered concussions. The Plaintiffs allege that the NCAA concealed
information about the risks of the long-term effects of concussion
injuries. Opponents to centralization argue, inter alia, that (1)
the putative classes and claims alleged in these actions do not
sufficiently overlap; and (2) given the small number of actions
pending, alternatives to centralization are preferable. Opponents'
arguments, while persuasive when the Section 1407 motion was first
filed, are less compelling now given the current state of the
litigation, the Panel said.
Since the motion for centralization was filed, an additional eight
related actions have been filed, most alleging overlapping putative
classes of former football players at NCAA-member schools. The
Northern District of Illinois Arrington action involves
student-athletes, who participated in additional sports, and the
putative class alleged in that action is more limited in scope.
Most of the actions now pending, however, involve nearly completely
overlapping putative classes and claims. Moreover, the Panel is
persuaded that the overlap between Arrington and the remaining
actions is sufficient to warrant centralization. Regardless of the
scope of the putative classes alleged, all actions share common
factual questions concerning the NCAA's knowledge of the risks of
concussions in football players and its policies governing the
protection of players from such injuries. The Plaintiffs in all
actions seek medical monitoring for putative class members.
In its Dec. 18, 2013 Order, the MDL Panel found that the these
actions involve common questions of fact, and that centralization
in the Northern District of Illinois will serve the convenience of
the parties and witnesses and promote the just and efficient
conduct of this litigation. These actions share factual questions
relating to allegations against the NCAA stemming from injuries
sustained while playing sports at NCAA-member institutions,
including damages resulting from the permanent long-term effects of
concussions. Centralization will eliminate duplicative discovery;
prevent inconsistent pretrial rulings, including with respect to
class certification; and conserve the resources of the parties,
their counsel, and the judiciary. Presiding Judge in the MDL is
Hon. Judge John Z. Lee Paul. The lead case is 1:16-cv-08727.
NCAA is a non-profit organization, which regulates athletes of
1,268 North American institutions and conferences.[BN]
The Plaintiff is represented by:
Jeff Raizner, Esq.
RAIZNER SLANIA LLP
2402 Dunlavy Street
Houston, TX 77006
Telephone: (713) 554-9099
Facsimile: (713) 554-9098
E-mail: jraizner@raiznerlaw.com
MDL 2492: Noiel Suit v. NCAA Over Health Issues Consolidated
------------------------------------------------------------
The case captioned CARY NOIEL, individually and on behalf of all
similarly situated individuals, Plaintiff v. NATIONAL COLLEGIATE
ATHLETIC ASSOCIATION, Defendant, Case No. 1:19-cv-04043 (Filed
Sept. 26, 2019), was transferred from the U.S. District Court for
the Southern District of Indiana to the U.S. District Court for the
Northern District of Illinois (Chicago) on Nov. 7, 2019.
The Northern District of Illinois Court Clerk assigned Case No.
1:19-cv-07343 to the proceeding.
The Plaintiff brings this class action complaint against NCAA to
obtain redress for injuries sustained as result of its reckless
disregard for the health and safety of generations of
student-athletes.
The Noiel case is being consolidated with MDL No. 2492, In Re:
NATIONAL COLLEGIATE ATHLETIC ASSOCIATION STUDENT-ATHLETE CONCUSSION
INJURY LITIGATION. The MDL was created by Order of the United
States Judicial Panel on Multidistrict Litigation on Dec. 18, 2013.
These actions seek medical monitoring for putative classes of
former student athletes at NCAA-member schools, who allege they
suffered concussions. The Plaintiffs allege that the NCAA concealed
information about the risks of the long-term effects of concussion
injuries. Opponents to centralization argue, inter alia, that (1)
the putative classes and claims alleged in these actions do not
sufficiently overlap; and (2) given the small number of actions
pending, alternatives to centralization are preferable. Opponents'
arguments, while persuasive when the Section 1407 motion was first
filed, are less compelling now given the current state of the
litigation, the Panel said.
Since the motion for centralization was filed, an additional eight
related actions have been filed, most alleging overlapping putative
classes of former football players at NCAA-member schools. The
Northern District of Illinois Arrington action involves
student-athletes, who participated in additional sports, and the
putative class alleged in that action is more limited in scope.
Most of the actions now pending, however, involve nearly completely
overlapping putative classes and claims. Moreover, the Panel is
persuaded that the overlap between Arrington and the remaining
actions is sufficient to warrant centralization. Regardless of the
scope of the putative classes alleged, all actions share common
factual questions concerning the NCAA's knowledge of the risks of
concussions in football players and its policies governing the
protection of players from such injuries. The Plaintiffs in all
actions seek medical monitoring for putative class members.
In its Dec. 18, 2013 Order, the MDL Panel found that the these
actions involve common questions of fact, and that centralization
in the Northern District of Illinois will serve the convenience of
the parties and witnesses and promote the just and efficient
conduct of this litigation. These actions share factual questions
relating to allegations against the NCAA stemming from injuries
sustained while playing sports at NCAA-member institutions,
including damages resulting from the permanent long-term effects of
concussions. Centralization will eliminate duplicative discovery;
prevent inconsistent pretrial rulings, including with respect to
class certification; and conserve the resources of the parties,
their counsel, and the judiciary. Presiding Judge in the MDL is
Hon. Judge John Z. Lee Paul. The lead case is 1:16-cv-08727.
NCAA is a non-profit organization, which regulates athletes of
1,268 North American institutions and conferences.[BN]
The Plaintiff is represented by:
Jeff Raizner, Esq.
RAIZNER SLANIA LLP
2402 Dunlavy Street
Houston, TX 77006
Telephone: (713) 554-9099
Facsimile: (713) 554-9098
E-mail: jraizner@raiznerlaw.com
MDL 2492: Reid Suit v. NCAA Over Health Issues Consolidated
-----------------------------------------------------------
The case captioned MARL REID, individually and on behalf of all
similarly situated individuals, Plaintiff v. NATIONAL COLLEGIATE
ATHLETIC ASSOCIATION, and WIDENER UNIVERSITY, Defendants, Case No.
1:19-cv-04191 (Filed Oct. 11, 2019), was transferred from the U.S.
District Court for the Southern District of Indiana to the U.S.
District Court for the Northern District of Illinois (Chicago) on
Nov. 7, 2019.
The Northern District of Illinois Court Clerk assigned Case No.
1:19-cv-07356 to the proceeding.
The Plaintiff brings this class action complaint against the
Defendants to obtain redress for injuries sustained as result of
their reckless disregard for the health and safety of generations
of student-athletes.
The Reid case is being consolidated with MDL No. 2492, In Re:
NATIONAL COLLEGIATE ATHLETIC ASSOCIATION STUDENT-ATHLETE CONCUSSION
INJURY LITIGATION. The MDL was created by Order of the United
States Judicial Panel on Multidistrict Litigation on Dec. 18, 2013.
These actions seek medical monitoring for putative classes of
former student athletes at NCAA-member schools, who allege they
suffered concussions. The Plaintiffs allege that the NCAA concealed
information about the risks of the long-term effects of concussion
injuries. Opponents to centralization argue, inter alia, that (1)
the putative classes and claims alleged in these actions do not
sufficiently overlap; and (2) given the small number of actions
pending, alternatives to centralization are preferable. Opponents'
arguments, while persuasive when the Section 1407 motion was first
filed, are less compelling now given the current state of the
litigation, the Panel said.
Since the motion for centralization was filed, an additional eight
related actions have been filed, most alleging overlapping putative
classes of former football players at NCAA-member schools. The
Northern District of Illinois Arrington action involves
student-athletes, who participated in additional sports, and the
putative class alleged in that action is more limited in scope.
Most of the actions now pending, however, involve nearly completely
overlapping putative classes and claims. Moreover, the Panel is
persuaded that the overlap between Arrington and the remaining
actions is sufficient to warrant centralization. Regardless of the
scope of the putative classes alleged, all actions share common
factual questions concerning the NCAA's knowledge of the risks of
concussions in football players and its policies governing the
protection of players from such injuries. The Plaintiffs in all
actions seek medical monitoring for putative class members.
In its Dec. 18, 2013 Order, the MDL Panel found that the these
actions involve common questions of fact, and that centralization
in the Northern District of Illinois will serve the convenience of
the parties and witnesses and promote the just and efficient
conduct of this litigation. These actions share factual questions
relating to allegations against the NCAA stemming from injuries
sustained while playing sports at NCAA-member institutions,
including damages resulting from the permanent long-term effects of
concussions. Centralization will eliminate duplicative discovery;
prevent inconsistent pretrial rulings, including with respect to
class certification; and conserve the resources of the parties,
their counsel, and the judiciary. Presiding Judge in the MDL is
Hon. Judge John Z. Lee Paul. The lead case is 1:16-cv-08727.
NCAA is a non-profit organization, which regulates athletes of
1,268 North American institutions and conferences.[BN]
The Plaintiff is represented by:
Jeff Raizner, Esq.
RAIZNER SLANIA LLP
2402 Dunlavy Street
Houston, TX 77006
Telephone: (713) 554-9099
Facsimile: (713) 554-9098
E-mail: jraizner@raiznerlaw.com
MDL 2492: Springer Suit v. NCAA Over Health Issues Consolidated
---------------------------------------------------------------
The case entitled BRANDIN SPRINGER, individually and on behalf of
all similarly situated individuals, Plaintiff v. NATIONAL
COLLEGIATE ATHLETIC ASSOCIATION, and MENLO COLLEGE, Defendants,
Case No. 1:19-cv-04187 (Filed Oct. 11, 2019), was transferred from
the U.S. District Court for the Southern District of Indiana to the
U.S. District Court for the Northern District of Illinois (Chicago)
on Nov. 7, 2019.
The Northern District of Illinois Court Clerk assigned Case No.
1:19-cv-07347 to the proceeding.
The Plaintiff brings this class action complaint against the
Defendants to obtain redress for injuries sustained as result of
their reckless disregard for the health and safety of generations
of student-athletes.
The Springer case is being consolidated with MDL No. 2492, In Re:
NATIONAL COLLEGIATE ATHLETIC ASSOCIATION STUDENT-ATHLETE CONCUSSION
INJURY LITIGATION. The MDL was created by Order of the United
States Judicial Panel on Multidistrict Litigation on Dec. 18, 2013.
These actions seek medical monitoring for putative classes of
former student athletes at NCAA-member schools, who allege they
suffered concussions. The Plaintiffs allege that the NCAA concealed
information about the risks of the long-term effects of concussion
injuries. Opponents to centralization argue, inter alia, that (1)
the putative classes and claims alleged in these actions do not
sufficiently overlap; and (2) given the small number of actions
pending, alternatives to centralization are preferable. Opponents'
arguments, while persuasive when the Section 1407 motion was first
filed, are less compelling now given the current state of the
litigation, the Panel said.
Since the motion for centralization was filed, an additional eight
related actions have been filed, most alleging overlapping putative
classes of former football players at NCAA-member schools. The
Northern District of Illinois Arrington action involves
student-athletes, who participated in additional sports, and the
putative class alleged in that action is more limited in scope.
Most of the actions now pending, however, involve nearly completely
overlapping putative classes and claims. Moreover, the Panel is
persuaded that the overlap between Arrington and the remaining
actions is sufficient to warrant centralization. Regardless of the
scope of the putative classes alleged, all actions share common
factual questions concerning the NCAA's knowledge of the risks of
concussions in football players and its policies governing the
protection of players from such injuries. The Plaintiffs in all
actions seek medical monitoring for putative class members.
In its Dec. 18, 2013 Order, the MDL Panel found that the these
actions involve common questions of fact, and that centralization
in the Northern District of Illinois will serve the convenience of
the parties and witnesses and promote the just and efficient
conduct of this litigation. These actions share factual questions
relating to allegations against the NCAA stemming from injuries
sustained while playing sports at NCAA-member institutions,
including damages resulting from the permanent long-term effects of
concussions. Centralization will eliminate duplicative discovery;
prevent inconsistent pretrial rulings, including with respect to
class certification; and conserve the resources of the parties,
their counsel, and the judiciary. Presiding Judge in the MDL is
Hon. Judge John Z. Lee Paul. The lead case is 1:16-cv-08727.
NCAA is a non-profit organization, which regulates athletes of
1,268 North American institutions and conferences.[BN]
The Plaintiff is represented by:
Jeff Raizner, Esq.
RAIZNER SLANIA LLP
2402 Dunlavy Street
Houston, TX 77006
Telephone: (713) 554-9099
Facsimile: (713) 554-9098
E-mail: jraizner@raiznerlaw.com
MDL 2492: Vincent Suit v. NCAA Over Health Issues Consolidated
--------------------------------------------------------------
The case styled JIMMIE VINCENT, individually and on behalf of all
similarly situated individuals, Plaintiff v. NATIONAL COLLEGIATE
ATHLETIC ASSOCIATION, Defendant, Case No. 1:19-cv-03274 (Filed Aug.
5, 2019), was transferred from the U.S. District Court for the
Southern District of Indiana to the U.S. District Court for the
Northern District of Illinois (Chicago) on Nov. 7, 2019.
The Northern District of Illinois Court Clerk assigned Case No.
1:19-cv-07331 to the proceeding.
The Plaintiff brings this class action complaint against NCAA to
obtain redress for injuries sustained as result of its reckless
disregard for the health and safety of generations of
student-athletes.
The Vincent case is being consolidated with MDL No. 2492, In Re:
NATIONAL COLLEGIATE ATHLETIC ASSOCIATION STUDENT-ATHLETE CONCUSSION
INJURY LITIGATION. The MDL was created by Order of the United
States Judicial Panel on Multidistrict Litigation on Dec. 18, 2013.
These actions seek medical monitoring for putative classes of
former student athletes at NCAA-member schools, who allege they
suffered concussions. The Plaintiffs allege that the NCAA concealed
information about the risks of the long-term effects of concussion
injuries. Opponents to centralization argue, inter alia, that (1)
the putative classes and claims alleged in these actions do not
sufficiently overlap; and (2) given the small number of actions
pending, alternatives to centralization are preferable. Opponents'
arguments, while persuasive when the Section 1407 motion was first
filed, are less compelling now given the current state of the
litigation, the Panel said.
Since the motion for centralization was filed, an additional eight
related actions have been filed, most alleging overlapping putative
classes of former football players at NCAA-member schools. The
Northern District of Illinois Arrington action involves
student-athletes, who participated in additional sports, and the
putative class alleged in that action is more limited in scope.
Most of the actions now pending, however, involve nearly completely
overlapping putative classes and claims. Moreover, the Panel is
persuaded that the overlap between Arrington and the remaining
actions is sufficient to warrant centralization. Regardless of the
scope of the putative classes alleged, all actions share common
factual questions concerning the NCAA's knowledge of the risks of
concussions in football players and its policies governing the
protection of players from such injuries. The Plaintiffs in all
actions seek medical monitoring for putative class members.
In its Dec. 18, 2013 Order, the MDL Panel found that the these
actions involve common questions of fact, and that centralization
in the Northern District of Illinois will serve the convenience of
the parties and witnesses and promote the just and efficient
conduct of this litigation. These actions share factual questions
relating to allegations against the NCAA stemming from injuries
sustained while playing sports at NCAA-member institutions,
including damages resulting from the permanent long-term effects of
concussions. Centralization will eliminate duplicative discovery;
prevent inconsistent pretrial rulings, including with respect to
class certification; and conserve the resources of the parties,
their counsel, and the judiciary. Presiding Judge in the MDL is
Hon. Judge John Z. Lee Paul. The lead case is 1:16-cv-08727.
NCAA is a non-profit organization, which regulates athletes of
1,268 North American institutions and conferences.[BN]
The Plaintiff is represented by:
Jeff Raizner, Esq.
RAIZNER SLANIA LLP
2402 Dunlavy Street
Houston, TX 77006
Telephone: (713) 554-9099
Facsimile: (713) 554-9098
E-mail: jraizner@raiznerlaw.com
MDL 2804: Montgomery County to Join Opioid Class Action
-------------------------------------------------------
Catherine Dominguez, writing for Chron, reports that Commissioners
gave the Montgomery County Attorney's Office approval to join a
class action lawsuit against dozens of pharmaceutical companies
regarding thousands of deaths caused by the overprescribed
opioids.
While the nation's three largest drug distributors agreed to a $260
million settlement, the pharmaceutical industry still face more
than 2,600 individual suits, including one filed by Montgomery
County in December 2017, regarding the opioid crisis. The agreement
was struck in the middle of the night, just hours before a jury
that was selected was scheduled to hear opening arguments in
federal court in Cleveland.
The trial, involving Cleveland's Cuyahoga County and Akron's Summit
County, was seen as a critical test case that could have gauged the
strength of the opposing sides' arguments and prodded the industry
and its foes toward a nationwide resolution of nearly all lawsuits
over opioids, according to the Associated Press.
"We received information that we could opt in or opt out of the
national class action," County Attorney B.D. Griffin told
commissioners. "We thought it would be better to be a member of the
class as opposed to a standalone lawsuit."
Class action lawsuits are made up of claimants who've suffered a
similar loss or injury and bring a single collective case against
the responsible party or parties. Once a certain percentage of
plaintiffs opt into a class action suit, it can proceed.
Griffin said the suit deals with the direct and indirect costs
associated to overprescribed opioids.
According to Montgomery County's lawsuit, before the 1990s, it was
generally accepted to prescribe opioids for short-term pain
management following surgery, for cancer patients and for
palliative care. At that time, opioids for long-term pain
management was discouraged.
However, the suit states, pharmaceutical companies "dramatically
changed doctors' views regarding opioids through a well-funded
deceptive marketing scheme. Each defendant used direct marketing
and unbranded advertising disseminated by seemingly independent
third parties to spread false and deceptive statements about the
risks and benefits of long-term opioid use."
Opioids are a class of drugs that include the illegal drug heroin,
synthetic opioids such as fentanyl, and pain relievers available
legally by prescription, such as oxycodone, hydrocodone, codeine
and morphine, according to the Department of Health and Human
Services.
The suit alleges through multimillion-dollar marketing campaigns,
drug companies purported benefits of opioids for pain management
and functional improvement for patients with physically demanding
jobs.
According to the suit, in 2014 defendants spent $168 million on
detailing branded opioids to doctors which was twice as much as
defendants spent on detailing in 2000. [GN]
MICHAELS ORGANIZATION: Lenz Files Suit in M.D. Florida
------------------------------------------------------
A class action lawsuit has been filed against The Michaels
Organization et al. The case is styled as Joshua Lenz, Traci Lenz,
Jason Norquist, Amie Norquist, Ryan Morgan, Erica Morgan, Gary
Elbon, Kayla Elbon, Jason Genrich, Jenny Genrich, individually and
on behalf of all others similarly situated, Plaintiffs v. The
Michaels Organization, LLC; Michaels Management Services, INC.;
Interstate Realty Management Company; AMC East Communities, LLC;
Clark Realty Capital LLC; Harbor Bay at Macdill, Defendant, Case
No. 8:19-cv-02950-JSM-AEP (M.D. Fla., Dec. 2, 2019).
The nature of suit is stated as Other Contract.
The Michaels Organization is a privately-held family of independent
but integrated companies dedicated to excellence in affordable,
military, student and conventional multifamily housing.[BN]
The Plaintiffs are represented by:
Natalie Khawam, Esq.
Whistleblower Law Firm, P.L.
400 N. Tampa St Ste 950
Tampa, FL 33602-4700
Phone: (813) 944-7853
Email: nataliek@813whistle.com
OLD NAVY LLC: Faces Nemykina Suit Over False Prices and Discounts
-----------------------------------------------------------------
Anna Nemykina, for Herself, as a Private Attorney General, and/or
On Behalf Of All Others Similarly Situated v. OLD NAVY, LLC; OLD
NAVY (APPAREL), LLC; OLD NAVY HOLDINGS, LLC; GPS SERVICES, INC.;
THE GAP, INC.; and DOES 1-20, inclusive, Case No. 2:19-cv-01958
(W.D. Wash., Dec. 1, 2019), is brought on behalf of a class of
Washington State consumers, who purchased falsely discounted
products on Old Navy's Web site, seeking to recover damages, among
other things.
Ms. Nemykina also asks the Court to order the Defendants to
disgorge all revenues they have unjustly received from the proposed
Class due to their intentional and unlawful pattern and practice of
using false reference prices and false discounts.
Old Navy has perpetrated a massive false discount advertising
scheme across nearly all of its Old Navy-branded products across
all of its sales channels (i.e. on the Old Navy Web site and in all
of its brick and-mortar Old Navy and Old Navy Outlet stores),
according to the complaint. Old Navy advertises perpetual or near
perpetual discounts (typically a purported savings of 30% to 60%
off) from Old Navy's self-created list prices for the products.
Old Navy represents its list prices to be the "regular" and normal
prices of the items, and the list prices function as reference
prices from which the advertised discounts and percentage-off sales
are calculated. Old Navy's discounts and reference prices are
false, because Old Navy rarely if ever offers the products at the
advertised list price, the Plaintiff contends.
Old Navy invents inflated and fictitious list prices in order to
enable it to advertise perpetual website-wide and store-wide "sale"
events and product discounts to induce customers to purchase its
products, the Plaintiff says. Old Navy's marketing plan is to trick
its customers into believing that its products are worth, and have
a value equal to, the inflated list price, and that the lower
advertised sale price represents a special bargain--when in reality
and unbeknownst to the customer, the "sale" price is approximately
equal to Old Navy's usual and normal selling price for the
product.
Old Navy's nationwide fraudulent advertising scheme harms consumers
like the Plaintiff, who purchased falsely discounted products on
Old Navy's Web site from her home in Washington State, by causing
them to pay more than they otherwise would have paid and to buy
more than they otherwise would have bought, says the complaint.
The Plaintiff is a citizen of Washington State.
Old Navy is a popular retailer which calls itself "one of the
fastest growing apparel brands in the U.S. and category leader in
family apparel".[BN]
The Plaintiff is represented by:
Daniel M. Hattis, Esq.
Che Corrington, Esq.
Paul Karl Lukacs, Esq.
HATTIS & LUKACS
400 108th Ave NE, Ste. 500
Bellevue, WA 98004
Phone: 425.233.8650
Fax: 425.412.7171
Email: dan@hattislaw.com
che@hattislaw.com
pkl@hattislaw.com
- and -
Stephen P. DeNittis, Esq.
Shane T. Prince, Esq.
DeNITTIS OSEFCHEN PRINCE, P.C.
5 Greentree Centre, Suite 410
525 Route 73 N
Marlton, NJ 08057
Phone: (856) 797-9951
Facsimile: (856) 797-9978
Email: sdenittis@denittislaw.com
sprince@denittislaw.com
PACIFIC FOODS: Nelles Sues Over False Vanilla Almond Milk Labels
----------------------------------------------------------------
Marc Nelles, individually and on behalf of all others similarly
situated v. Pacific Foods of Oregon, LLC, Case No. 1:19-cv-11025
(S.D.N.Y., Dec. 1, 2019), seeks damages under consumer protection
laws arising from the Defendant's misleading representations on its
vanilla almond milk products' packaging.
The Product's front label and advertising makes direct
representations with respect to its primary recognizable and
characterizing flavor by the word "Vanilla" and/or vignette of
cured vanilla beans. Since vanilla is the only flavor with its own
standard of identity, its labeling is controlled not by the general
flavor regulations but by the standards for vanilla ingredients.
This means that if a product is represented as being characterized
by vanilla yet also contains non-vanilla vanillin, the label and
packaging must declare the presence of vanillin and identify it as
an artificial flavor.
The Plaintiff notes that the Product's front label (1) represents
the Product's characterizing flavor is vanilla, and (2) lacks any
qualifying terms, thus, confirming to consumers they contain a
sufficient amount of the characterizing food ingredient, vanilla
(flavoring or extract) to independently flavor the Products. The
Plaintiff contends that these representations are misleading
because the Product does not contain the amount, type and/or
percentage of vanilla as a component of its flavoring, which is
required by law and consistent with consumer expectations.
Had the Plaintiff and class members known the truth, they would not
have bought the Product or would have paid less for it, says the
complaint. The Product also contains other representations, which
are misleading and deceptive. As a result of the false and
misleading labeling, the Product is sold at a premium price,
approximately no less than $4.99 per 32 FL OZ, excluding
tax--compared to other similar products represented in a
non-misleading way.
The Plaintiff purchased one or more of the Products for personal
use and consumption.
Pacific Foods of Oregon, LLC manufactures, distributes, markets,
labels and sells almondmilk beverages purporting to be
characterized by and containing flavor only from vanilla under
their Pacific Foods brand.[BN]
The Plaintiff is represented by:
Spencer Sheehan, Esq.
SHEEHAN & ASSOCIATES, P.C.
505 Northern Blvd., Suite 311
Great Neck, NY 11021
Telephone: (516) 303-0552
Facsimile: (516) 234-7800
E-mail: spencer@spencersheehan.com
- and -
Michael R. Reese, Esq.
REESE LLP
100 West 93rd Street, 16th Floor
New York, NY 10025
Telephone: (212) 643-0500
Facsimile: (212) 253-4272
E-mail: mreese@reesellp.com
PHILADELPHIA FEDERAL: Faces Class Action Over NSF Fees
------------------------------------------------------
Michael Bartlett, writing for Credit Union Journal, reports that
Philadelphia Federal Credit Union has been sued over the fees it
charges members for insufficient funds.
Aliesha Dailey, the lead plaintiff in the class action lawsuit,
alleged that the $1.1 billion-asset credit union charged her two
fees for the same item, according to the complaint.
Dailey attempted an Automated Clearing House transaction from her
savings account on Feb. 6, according to the complaint. The credit
union declined payment on the item as Dailey's account had
insufficient funds to cover the amount. At that time, Philadelphia
FCU charged Dailey a $28 NSF fee.
"Plaintiff does not dispute this initial fee, as it is allowed by
PFCU's account documents," the complaint states.
On Feb. 7, the credit union allegedly processed the item a second
time. In this instance, the item was paid, though there were still
insufficient funds, and Dailey was charged a $28 overdraft fee,
according to the lawsuit.
"In sum, PFCU charged Plaintiff $56 in NSF Fees to attempt to
process a single payment," the complaint says.
Philadelphia FCU did not immediately respond to a request for
comment.
The plaintiff didn't dispute PFCU's right to either reject a
transaction and charge a single NSF fee, or pay a transaction and
charge a single overdraft fee if that transaction overdraws the
account. However, the complaint asserts that "PFCU unlawfully
maximizes its already profitable account fees with deceptive
practices that also violate its contract" by assessing multiple NSF
fees on what the plaintiff argues is a "single" ACH transaction.
"In PFCU's sole and undisclosed view, each time PFCU processes an
ACH transaction or check for payment after a having been rejected
for insufficient funds, it becomes a new, unique item or
transaction that is subject to another NSF Fee. But PFCU's Account
Documents never even hints that this counterintuitive result could
be possible," the complaint argues.
The complaint goes on to state that the credit union's account
documents "indicate that only a single NSF fee will be charged for
however many times the request for payment is reprocessed. An
electronic item reprocessed after an initial return for
insufficient funds cannot and does not fairly become a new, unique
item for NSF fee assessment purposes."
The lawsuit alleges breach of contract and breach of duty of good
faith and fair dealing and seeks monetary damages, restitution and
declaratory relief from the credit union.
A number of credit unions have faced complaints over how they
handle members not having sufficient funds to cover a transaction.
Several credit unions, such as United Federal Credit Union and
VyStar Credit Union, have been sued and eventually settled cases
regarding their overdraft practices. [GN]
PLANTRONICS INC: December 20 Settlement Fairness Hearing Set
------------------------------------------------------------
A COURT AUTHORIZED THIS SUMMARY LEGAL NOTICE
If you purchased Plantronics BackBeat FIT wireless sport
headphones, version Genesis or 16M ("Headphones"), you may be
entitled to a cash payment of up to $50 or an extended warranty
from a class action settlement.
A settlement has been reached in a class action lawsuit titled Shin
v. Plantronics, Inc., No. 5:18-cv-05626-NC (N.D. Cal.). The lawsuit
claims that Plantronics, Inc. falsely advertised and warranted the
Headphones as sweatproof, waterproof, and providing up to eight
hours of listening time on a single charge. Plantronics denies all
of the claims and allegations in the lawsuit and denies any
wrongdoing and stands by its products as advertised and warranted.
WHO IS A CLASS MEMBER?
You may be in the Settlement Class if you live in the United States
and its territories and purchased at retail the Headphones on or
between April 1, 2014, and October 31, 2019.
WHAT BENEFITS DOES THE SETTLEMENT PROVIDE?
Class Members can receive one of the following benefits under the
settlement:
Extended Limited Warranty - Class Members who purchased Headphones
on or after January 1, 2018, receive a 12-month limited warranty
extension unless they file a claim for the $50 or $25 cash payment
(see below). The Extended Limited Warranty applies to the
Headphones' battery, battery performance, ability to retain a
charge, or their resistance to water, moisture, or sweat and is
subject to terms and conditions as described in the Settlement
Agreement. The Extended Limited Warranty will begin to run on the
Effective Date of the Settlement. You do not need to submit a Claim
Form if you qualify for the Extended Limited Warranty. However, if
you choose to receive a cash payment through this Settlement, you
are not eligible to also receive the Extended Limited Warranty.
$50 Cash Payment - Class Members who submit a Valid Claim supported
by proof of purchase information and provide evidence that the
Class Member made a contemporaneous written claim or complaint that
their Headphones were defective or did not function properly may
receive a cash payment of $50. Class Members must attest that: (a)
their Headphones malfunctioned or failed to work properly due to an
issue with the battery, battery performance, or an ability to
retain a charge, or due to an issue with the Headphones' resistance
to water, moisture, or sweat; and (b) they did not previously
receive a replacement set of Headphones from any source or a refund
from Plantronics or the retailer from which they purchased the
Headphones for all or any portion of their purchase price. Proof of
purchase information can be satisfied by the Class Member
submitting evidence (e.g., a receipt) or by purchase information
obtained by Class Counsel from third-party retailers (e.g., Costco,
Best Buy). Class Members who purchased multiple sets of Headphones
can receive up to two $50 payments. Class Members who previously
received replacement Headphones or a refund in response to the
original warranty claim or complaint are not entitled to payment
under this alternative. The Settlement Administrator will review
all claims, as necessary, to determine whether the information
obtained from third-party retailers satisfies the proof of purchase
requirement. The Settlement Administrator will also review
information and records in Plantronics' possession and obtained
from third-party retailers to determine if the Class Member made a
written claim or complaint. Go to www.headphonesettlement.com to
file a claim.
$25 Cash Payment - Class Members who submit a Valid Claim supported
by proof of purchase information and attest that (a) their
Headphones malfunctioned or failed due to an issue with the
battery, battery performance, or an ability to retain a charge, or
due to an issue with the Headphones' resistance to water, moisture,
or sweat, and (b) they did not previously receive a refund, may
receive a $25 cash payment. Proof of purchase information can be
satisfied by the Class Member submitting evidence (e.g., a receipt)
or by purchase information obtained by Class Counsel from
third-party retailers (e.g., Costco, Best Buy). The Settlement
Administrator will review all claims, as necessary, to determine
whether the information obtained from third-party retailers
satisfies the proof of purchase requirement. Class Members who
purchased multiple sets of Headphones can receive up to two $25
payments. Class Members who previously received a set of
replacement Headphones are limited to one $25 payment. Go to
www.headphonesettlement.com to file a claim.
Plantronics has also agreed to pay (1) reasonable attorneys' fees
and expenses to Class Counsel not to exceed $650,000; (2) a Service
Award of $5,000 to the Named Plaintiff; and (3) the costs of
administering the Settlement.
YOUR RIGHTS AND OPTIONS
Submit a Claim Form. To be eligible to receive a cash payment, you
must submit a timely Claim Form. You can submit a Claim Form
electronically on the Settlement Website:
www.headphonesettlement.com or download a Claim Form from the
Settlement Website, complete the information, and mail it to the
Settlement Administrator. Your Claim Form must be postmarked or
submitted online no later than December 31, 2019. (Click Here to
file a claim)
Opt Out. You may also exclude yourself from the settlement and keep
your rights, if any, to sue Plantronics by sending a written
request for exclusion to the Settlement Administrator by November
22, 2019. If you do not exclude yourself, you will be bound by the
Settlement and give up your right to sue regarding the settled
claims.
Object. If you do not exclude yourself, you have the right to
object to the proposed Settlement. Written objections must be
signed, postmarked by November 22, 2019, and provide the reasons
for the objection. Please review the Settlement Website
www.headphonesettlement.com for further details.
Do Nothing. If you do nothing, you will not receive any cash
payment and will lose the right to sue regarding any issues
relating to the Lawsuit and claims released by the Settlement. You
will be considered part of the Settlement Class, and you will be
bound by the Settlement and the Court's decisions.
Released Claims. If you submit a claim, do nothing, or do not
exclude yourself from the Settlement, you will be releasing
Plantronics from all claims, damages, and losses that you now have
or may have in the future that relate to your Headphones' battery,
battery performance, ability to retain a charge, or their
resistance to water, moisture, or sweat.
Attend the Fairness Hearing. The Court, located at the United
States District Court for the Northern District of California, 280
South 1st Street, Courtroom 5, San Jose, California 95113, will
hold a Fairness Hearing on December 20, 2019 at 11 am. All persons
who timely object to the Settlement by November 22, 2019, may ask
to appear at the Fairness Hearing.
This Notice is only a summary. You can find more details at the
Settlement Website: www.headphonesettlement.com or by calling
toll-free 800-983-6533.
Do not contact the Court. [GN]
POST CONSUMER: First Circuit Appeal Filed in Lima Consumer Suit
---------------------------------------------------------------
Plaintiffs Anita S. Lima and Susan Wrublewski filed an appeal from
a court ruling entered in their lawsuit entitled Lima, et al. v.
Post Consumer Brands, LLC, Case No. 1:18-cv-12100-ADB, in the U.S.
District Court for the District of Massachusetts, Boston.
As reported in the Class Action Reporter on Oct. 31, 2019, the
District Court issued a Memorandum and Order denying Plaintiffs'
Motion for Reconsideration.
Anita S. Lima and Susan Wrublewski brought this putative class
action against Defendant Post Consumer Brands, LLC, alleging that
Post's advertising and packaging of its Honey Bunches of Oats
cereal was deceptive. The Plaintiffs claimed that Post violated
state consumer protection laws and unjustly enriched itself by
creating the false impression that Honey Bunches of Oats was
primarily sweetened with honey.
On Aug. 13, 2019, the District Court dismissed the Plaintiffs'
Amended Complaint for failure to state a claim.
The Plaintiffs sought reconsideration of the Court's August 2019
Order granting Post's motion to dismiss. The Plaintiffs claimed
that the Court committed errors of law in its dismissal of both
Plaintiffs' consumer protection and unjust enrichment claims.
The appellate case is captioned as Lima, et al. v. Post Consumer
Brands, LLC, Case No. 19-2004, in the United States Court of
Appeals for the First Circuit.[BN]
Plaintiffs-Appellants ANITA S. LIMA, individually and on behalf of
others similarly situated, and SUSAN WRUBLEWSKI, individually and
on behalf of others similarly situated, are represented by:
Kenneth David Quat, Esq.
QUAT LAW OFFICES
929 Worcester Rd.
Framingham, MA 01701
Telephone: (508) 872-1261
E-mail: ken@quatlaw.com
- and -
Carlos F. Ramirez, Esq.
REESE LLP
7 Skyline Dr., Ste 350
Hawthorne, NY 10532
Telephone: (914) 860-4994
E-mail: cramirez@reesellp.com
- and -
Michael R. Reese, Esq.
MILBERG TADLER PHILLIPS GROSSMAN LLP
1 Penn Plaza, Suite 1920
New York, NY 10119-0000
Telephone: (212) 594-5300
Defendant-Appellee POST CONSUMER BRANDS, LLC, is represented by:
Sarah L. Brew, Esq.
Christine R.M. Kain, Esq.
Aaron D. Van Oort, Esq.
Tyler Adam Young, Esq.
Emily R. Zambrana, Esq.
FAEGRE BAKER DANIELS LLP
90 S 7th St., Suite 2200
Minneapolis, MN 55402-3901
Telephone: (612) 766-7470
E-mail: sarah.brew@FaegreBD.com
christine.kain@FaegreBD.com
aaron.vanoort@FaegreBD.com
tyler.young@FaegreBD.com
emily.zambrana@faegrebd.com
- and -
Kara G. Thorvaldsen, Esq.
WILSON ELSER MOSKOWITZ EDELMAN & DICKER LLP
260 Franklin St., 14th Floor
Boston, MA 02110-3112
Telephone: (617) 422-5300
E-mail: kara.thorvaldsen@wilsonelser.com
POWERCOR: Bushfire Class Action Hearing Scheduled for December 9
----------------------------------------------------------------
Andrew Thomson, writing for The Standard, reports that the Supreme
Court of Victoria has listed the settled Terang/Cobden bushfire
class action for a further hearing on the week starting December
9.
That listing will be to hear the application for approval of a
settlement in the proceeding between Powercor and lead plaintiff
Anthony Lenehan.
"At this hearing, any objections to the proposed settlement will
also be heard," the Supreme Court spokesman said.
A Powercor spokeswoman said the proposed settlement, for those
involved in the class action, was subject to approval by the
Supreme Court.
She said the settlement was without admission of liability by
Powercor.
"We acknowledge these fires have been devastating for landowners
and the community," she said.
"We are pleased to have reached a settlement agreement for the
Terang fire with all parties," she said.
Warrnambool's Maddens Lawyers have not responded to calls for
comment.
A number of questions have been put to Maddens relating to an
estimate of the total payout, Maddens' costs, the payout of cents
in the dollar of class action member losses and the cents/dollar of
losses after Maddens' costs are taken out of the payout.
The Standard revealed that the settlement made by lawyers for
insurance companies, at no cost to their Terang/Cobden bushfire
victims prior to the trial, was for 82.5 cents in the dollar of
losses suffered.
It's expected that the class action member settlement cents/dollar
will be significantly less than 82.5 cents, with some experts
tipping less than half.
Powercor failed to look at its own data which could have prevented
a devastating fire, a barrister told a Warrnambool court on Oct.
21.
Tim Tobin, SC, told the Supreme Court sitting in Warrnambool, that
the power company had information that would have alerted it to the
dangers of its assets sparking the St Patrick's Day fire at Terang
that raced towards Cobden but no one looked at the data.
During the opening address of a class action seeking compensation
for fire victims, Mr Tobin said the conductors which clashed
sparking the blaze were too close. He claimed Powercor had
straightened a pole in 2007 to ensure the conductors were separated
but the same pole in a clay table drain had shifted, reducing the
gap.
He also claimed the conductors did not have enough clearance from
the ground -- in places they were more than one metre too short.
He said clashing conductors at pole No. 3 near the Terang
electrical substation led to molten metal falling to the ground and
sparking the blaze. The fire burnt 18 kilometres in a
south-easterly direction, torching 4000 hectares, 90 properties,
homes, sheds, fences and livestock.
Mr Tobin said the conductors should have been 900mm apart but were
only 210mm apart, a "grossly insufficient clearance" and if
Powercor complied with its own standard the fire would never have
started.
He said Powercor's own Light Detecting and Ranging Measurement data
showed there was a gross breach of regulations but the electricity
distributor did not instruct anyone to look at the data.
The company looked at data for 66kv lines but not 22kv lines.
"No one bothered to look at the 22kv lines," he said.
"Powercor never looked at the risk of clashing. It would have been
obvious to anyone looking at clearances."
Mr Tobin said clashing conductors had been a major cause of
bushfires since the 1970s and Powercor admitted its assets caused
the Terang/Cobden bushfire.
He said on Black Saturday 2009 clashing conductors caused a
bushfire at Weerite, just 30 kilometres east of Terang.
Mr Tobin said that since the fire on St Patrick's Day, concrete had
been added to reinforce the pole and the crossarms had been
relocated.
Barrister Tim Margetts, QC, said there was no argument that
Powercor had a duty of care but the dispute was whether plaintiffs
had the right to claim damages.
He agreed Powercor had an obligation to inspect and maintain its
assets.
"In this trial we say that from a Powercor perspective, Powercor
has discharged that duty," he said.
Mr Margetts said the question was whether Powercor had discharged
its duty and exercised reasonable care.
He said there were risks in the supply of electricity that could
not be completely eliminated and not all potential risks could be
prevented or all risk removed.
The barrister said a management scheme had been put to and accepted
by Energy Safe Victoria.
Mr Margetts said clashing conductors on poles with such cross arms
were "exceptionally rare" and experienced linesmen had described it
as "unheard of".
"The court has to consider if the inspection and maintenance
practices introduced by Powercor discharge the duty of care," he
said.
The QC said the clash of conductors happened 2.5 metres from the
power pole, not at the pole. [GN]
RESOLUTE ENERGY: Filing of Bid to Extend Time Supplement Due Dec 12
-------------------------------------------------------------------
In the case, JOHN ISENSEE, Individually and on Behalf of All Others
Similarly Situated, Plaintiff, v. RESOLUTE ENERGY CORPORATION,
RICHARD F. BETZ, NICHOLAS J. SUTTON, JAMES E. DUFFY, TOD C. BENTON,
JOSEPH CITARRELLA, WILKIE S. COLYER, THOMAS O. HICKS, JR., GARY L.
HULTQUIST, JANET W. PASQUE, ROBERT J. RAYMOND, and WILLIAM K.
WHITE, Defendants, Case No. 19 Civ. 551 (AT) (S.D. N.Y.), Judge
Analisa Torres of the U.S. District Court for the Southern District
of New York ordered that by Dec. 12, 2019, the Plaintiff must file
a supplemental letter explaining why his pending motion to dismiss
in his Delaware action warrants an extension of time to file a
motion for attorney's fees in the action, or stating any additional
reasons that an extension of time should be granted.
The Plaintiff filed the securities class action on Jan. 18, 2019,
alleging the Defendants violated Sections 14(a) and 20(a) of the
Securities Exchange Act of 1934 and Rule 14a-9 promulgated
thereunder by the Defendants. On July 8, 2019, the Plaintiff moved
to voluntarily dismiss his claims, conceding that they were mooted
by supplemental disclosures made by the Defendants, but stated that
he intends to assert a claim for attorney's fees in connection with
the supplemental disclosures. That same day, the Court granted the
motion, and ordered the Plaintiff to provide the Court with a
status letter concerning his proposed fee application by Aug. 8,
2019.
On Aug. 8, 2019, the Plaintiff informed the Court that a similar
action had been filed against the Defendants in the U.S. District
Court for the District of Delaware -- In re Resolute Energy
Corporation Securities Litigation, No. 1:19-cv-00077 (D. De.) --
and in light of that action requested an extension to provide the
Court with an update on his proposed motion seeking an award of
attorney's fees." The Court granted an extension until Nov. 8,
2019.
On Nov. 8, 2019, the Plaintiff filed a status update reiterating
his intent to file a motion for attorney's fees, informing the
Court that a motion to dismiss was now fully briefied in the
Delaware action, and stating that he anticipates that he will
provide the Court with an update on his proposed motion seeking an
award of attorney's fees no later than Feb. 6, 2020.
Federal Rule of Civil Procedure 54(d)(2)(B)(1) requires that unless
a statute or court order provides otherwise, a motion for
attorney's fees must be filed no later than 14 days after the entry
of judgment. Judge Torres therefore construed the Plaintiff's
status letter as a request for a further extension of the deadline
to file a motion for attorney's fees. The Plaintiff's request,
however, does not provide the Court with sufficient information to
determine whether a further extension is warranted.
Accordingly, the Judge ordered that by Dec. 12, 2019, the Plaintiff
will file a supplemental letter explaining in greater detail why
the pending motion to dismiss in the Delaware action warrants an
extension of time to file a motion for attorney's fees in the
action, or stating any additional reasons that an extension of time
should be granted.
A full-text copy of the Court's Nov. 13, 2019 Order is available at
https://is.gd/aOHEFy from Leagle.com.
John Isensee, individually and on behalf of all others similarly
situated, Plaintiff, represented by Joshua M. Lifshitz --
jml@jlclasslaw.com -- Lifshitz & Miller.
RUSHMORE LOAN: 11th Cir. Overturns Ruling in Sellers FDCPA Case
---------------------------------------------------------------
Perry Cooper, writing for Bloomberg Law, reports that Florida
consumers suing a mortgage lender for sending allegedly deceptive
debt collection letters will get another chance to argue their suit
should proceed as a class action, the Eleventh Circuit held.
The lower court "erroneously classified the question of whether the
Bankruptcy Code precluded or preempted the FDCPA and FCCPA claims
as raising an individual, rather than common, issue," Judge Jill A.
Pryor wrote for the U.S. Court of Appeals for the Eleventh
Circuit.
Randolph and Tabetha Sellers sued Rushmore Loan Management Services
LLC under the Fair Debt Collection Practices Act and the Florida
Consumer Collection Practices Act. [GN]
SAFEWAY INC: Settles Cashier Seat Class Action for $12 Million
--------------------------------------------------------------
Jennifer Carsen, writing for HRDrive, reports that Safeway has
agreed to pay $12 million to settle a lawsuit involving its alleged
failure to provide seats to cashiers at its California grocery
stores, in violation of state law (Sharp v. Safeway Inc., No.
2011-1-CV-202901 (Superior Ct. of Calif., County of Santa Clara,
Oct. 21, 2019)).
The California wage orders generally require that employees be
provided with "suitable seats" when the nature of the work permits
it. Safeway argued that it had a good-faith belief that the nature
of the cashiers' work did not reasonably permit seats.
The court decertified the class in this case, but the settlement
still has a sweeping impact: According to a story in the San
Francisco Chronicle, Safeway could be required to provide seats to
as many as 30,000 checkout clerks at its California stores over the
next two years, in addition to the monetary settlement.
Dive Insight:
When a non-compliant policy or practice affects a large number of
workers, even relatively small issues can quickly balloon into big,
expensive problems for employers. This happens frequently with wage
and hour missteps, as recent litigation illustrates.
Auto-deduct policies, for example, have ensnared many employers
lately. Although the policies themselves are not illegal, they
become an issue when employees work through planned breaks. Pre-
and post-shift work can be problematic, too: CorePower Yoga paid
$1.5 million after allegedly failing to pay its instructors for the
time they spent preparing for classes. And miscalculated overtime
can also add up quickly, as Delta Airlines recently discovered when
it paid $3.5 million to settle an overtime class action suit.
Wage and hour issues aren't the only claims ripe for collection
action, however. Walmart recently shelled out $14 million to settle
claims that it discriminated against pregnant employees by not
offering them the same opportunities for light duty that other
workers received. Policies requiring workers to be "100% healed"
before returning to work also tend to have a broad impact.
To stay out of class action trouble, employers must ensure that
policies are compliant and administered in a consistent,
even-handed fashion by HR and supervisors. Regular training for
managers is also an important best practice, experts say. [GN]
SCOTT & ASSOCIATES: Eleventh Circuit Appeal Filed in Russaw Suit
----------------------------------------------------------------
Plaintiff Dorothy Russaw filed an appeal from a court ruling in the
lawsuit titled Dorothy Russaw v. Scott & Associates, P.C., Case No.
2:19-cv-00421-ALB-SMD, in the U.S. District Court for the Middle
District of Alabama.
The nature of suit is stated as consumer credit.
The appellate case is captioned as Dorothy Russaw v. Scott &
Associates, P.C., Case No. 19-14307, in the United States Court of
Appeals for the Eleventh Circuit.[BN]
Plaintiff-Appellant DOROTHY RUSSAW, individually and on behalf of
all others similarly situated, is represented by:
David I. Schoen, Esq.
DAVID I. SCHOEN, ATTORNEY AT LAW
2800 Zelda Rd., Suite 100-6
Montgomery, AL 36106-2685
Telephone: (334) 395-6611
E-mail: schoenlawfirm@gmail.com
- and -
Yitzchak Zelman, Esq.
MARCUS & ZELMAN, LLC
701 Cookman Ave.
Asbury Park, NJ 07712
Telephone: (347) 526-4093
E-mail: yzelman@marcuszelman.com
Defendant-Appellee SCOTT & ASSOCIATES, P.C., is represented by:
Neal D. Moore, III, Esq.
Rachael T. Schexnailder, Esq.
FERGUSON FROST MOORE & YOUNG, LLP
1400 Urban Ctr. Dr., Suite 200
Birmingham, AL 35242
Telephone: (205) 879-8722
E-mail: ndm@ffmylaw.com
SHANGHAI ORIGINAL: Jin Appeals Denial to Reconsider Decert. Order
------------------------------------------------------------------
Plaintiffs Jianmin Jin and Chunyou Xie filed an appeal from the
District Court's Opinion & Order issued on October 2, 2019, in the
lawsuit entitled Jin, et al. v. Shanghai Original, Inc., et al.,
Case No. 16-cv-5633, in the U.S. District Court for the Eastern
District of New York (Brooklyn).
The Opinion & Order denied the Plaintiff's motion for relief from
the decertification order.
As reported in the Class Action Reporter on Nov. 6, 2019, District
Court Judge Allyne Ross rejects reconsideration of a class
decertification order in the case.
In October 2016, Jinanmin Jin and Chunyou Xie filed suit against
Joe's Shanghai on behalf of themselves and others similar situated
under the Fair Labor Standards Act (FLSA) and New York Labor Law
(NYLL).
Previously, the District Court granted the Plaintiffs' motion to
certify a NYLL class of all non-managerial employees at Joe's
Shanghai restaurant in Flushing, Queens (Flushing restaurant).
However, Judge Ross decertified that class in a July 10, 2019
decision. The decertification decision was precipitated by various
actions by counsel which led the District Court to conclude that
that counsel was not able to provide adequate class representation.
The issue was referred to Judge Orenstein, who reopened discovery
to allow the Plaintiffs to conduct dozens of depositions. The
judge found that the Plaintiffs' counsel decided not to complete
the remaining depositions or prosecute motions for sanctions,
without notice to the court. Subsequent red flags about counsel's
competency continued to appear, including failure to adequately
respond to the court's orders regarding witness lists, and apparent
attempts to delay trial.
The appellate case is captioned as Jin, et al. v. Shanghai
Original, Inc., et al., Case No. 19-3552, in the United States
Court of Appeals for the Second Circuit.[BN]
Plaintiffs-Appellants Jianmin Jin, on behalf of themselves and
others similarly situated, and Chunyou Xie, on behalf of themselves
and others similarly situated, are represented by:
John Troy, Esq.
JOHN TROY & ASSOCIATES, PLLC
41-25 Kissena Boulevard
Flushing, NY 11355
Telephone: (718) 762-1324
E-mail: johntroy@troypllc.com
Defendants-Appellees Shanghai Original, Inc., DBA Joe's Shanghai;
East Brother Corp., DBA Joe's Shanghai; Always Good Brothers, Inc.,
DBA Joe's Shanghai; Shanghai City Corp, DBA Joe's Shanghai;
Shanghai Duplicate Corp, DBA Joe's Shanghai; Kiu Sang Si, AKA
Joseph Si; Mimi Si; Yiu Fai Fong; Tun Yee Lam; and Solomon C. Liou
are represented by:
David B. Horowitz, Esq.
FONG & WONG, P.C.
254 Canal Street
New York, NY 10013
Telephone: (212) 966-6668
E-mail: dh@fwatty.com
SHUTTERFLY INC: Guglielmo Files ADA Suit in S.D. New York
---------------------------------------------------------
A class action lawsuit has been filed against Shutterfly, Inc. The
case is styled as Joseph Guglielmo, on behalf of himself and all
others similarly situated, Plaintiff v. Shutterfly, Inc.,
Defendant, Case No. 1:19-cv-11052 (S.D.N.Y., Dec. 2, 2019).
The Plaintiff filed the case under the Americans with Disabilities
Act.
Shutterfly, Inc. is an American photography, photography products,
and image sharing company, headquartered in Redwood City,
California.[BN]
The Plaintiff is represented by:
Russel Craig Weinrib, Esq.
Stein Saks PLLC
285 Passaic St., Suite 5
Hakensack, NJ 07601
Phone: (201) 282-6500
Email: rweinrib@steinsakslegal.com
SMILEDIRECT: Kirby McInerney Files Class Action Over IPO
--------------------------------------------------------
Geert De Lombaerde, writing for NashvillePost, reports that a New
York law firm has filed a putative class action against
SmileDirectClub, accusing the company, some of its executives and
shareholders as well as a number of investment banks of, among
other things, making misleading statements and of not properly
disclosing risks to the company's business model.
Attorneys with Kirby McInerney said their complaint filed in U.S.
District Court for the Southern District of New York aims to
represent investors who bought into SmileDirect's September initial
public offering, which fell flat and saw the company's stock
(Ticker: SDC) fall from $23 to below $10 in about a month. (They
have since rebounded a little to about $12 apiece.)
Their case piggy-backs in several ways on the putative class action
filed in Nashville five weeks ago by a group of attorneys that
includes Bone McAllester Norton's Ed Yarbrough. The September suit
represents consumers and orthodontists who claim SmileDirect is,
among other things, skirting federal laws by not using licensed
dentistry professionals and issuing fraudulent marketing claims.
In addition to their allegations that SmileDirect leaders misled
potential investors about the design and efficacy of its products,
the Kirby McInerny team says the downtown-based company "knowingly
concealed deceptive marketing practices" and didn't properly detail
its exposure to lawsuits -- such as the local case -- over its
business model. The lawyers say investors wanting to be appointed
lead plaintiff had until Dec. 2 to apply.
Shares of Tivity Health have rallied more than 6 percent in the
past two days -- bouncing off its lowest level in more than three
years -- in part on word that the Franklin company is partnering
with Walmart on a new community health initiative.
The Walmart Health facility -- the retailer's health care group is
run by veteran local health care CEO Phil Suiter -- opened in
September in a town west of Atlanta and is the first of its kind
for the country's largest private employer. It combines primary
care and laboratory services with health insurance education and
enrollment and other services. Tivity is providing a number of
fitness programs, including its core SilverSneakers offering for
seniors, to the Walmart center and will soon add wellness and
nutrition services.
"We have a shared vision of improving wellness at the community and
individual level by addressing key factors that contribute to poor
health," Tivity CEO Donato Tramuto said in a statement. "This model
will combine affordable, accessible care with well-being programs
like SilverSneakers in a consumer-focused model that addresses
health, not sick care." [GN]
SPECTRUM BRANDS: Class Action to Remain in Federal Court
--------------------------------------------------------
Scott Holland, writing for Pennsylvania Record, reports that a
federal judge has refused a request to send a class action
complaint regarding hair rollers back to state court.
Bruce Winkworth and Marcia Botelho filed a class action in the
Court of Common Pleas of Jefferson County alleging Spectrum Brands
sold Remington Hot Rollers with a "defective and dangerous
condition." Spectrum removed the complaint to federal court. U.S.
Magistrate Judge Patricia Dodge, of the Western District of
Pennsylvania, issued an opinion Oct. 21 on the plaintiffs' motion
to remand their lawsuit.
Dodge said the issue is the jurisdictional requirements of the
Class Action Fairness Act. The original complaint does not state
the amount in controversy, but Spectrum said the amount exceeds the
threshold of $5 million that grants jurisdiction to the federal
court.
The complaint calls for creation of two classes, a nationwide
injunctive and declaratory relief class and a damages class for
Pennsylvanians only, and seeks on behalf of both "compensatory,
direct, incidental and consequential damages, including full
refunds or replacement of the Hot Rollers with a nondefective
product at least the quality and grade marketed and promised, as
well as the shipment at Spectrum's expense for breach of express
warranties," Dodge wrote.
Spectrum arrived at its estimate by taking the prospective size of
the nationwide class and looking at the cost of refunds or product
replacements for the $25 rollers. That equates to 200,081 buyers,
but the number of rollers sold in the putative four-year class
period exceeds 400,000.
The plaintiffs insisted they are not seeking that many refunds,
only for Pennsylvania class members who have breach of express
warranty claims. Dodge called that position "untenable" both
because it improperly binds proposed class members before
certification and contradicts with their complaint's request that a
court declare all rollers sold within the four years "are covered
under Spectrum's express and implied warranties," a declaration
that necessarily entitles all customers to a refund or
replacement.
"It is entirely appropriate for Spectrum to rely upon national
sales data over the relevant time period to prove to a reasonable
certainty that jurisdiction exists," Dodge wrote. [GN]
SWITCH ENERGY: Moore Sues Over Nuisance Telemarketing Practices
---------------------------------------------------------------
George Moore, on behalf of himself and others similarly situated v.
SWITCH ENERGY LLC, Case No. 1:19-cv-07859 (N.D. Ill., Nov. 29,
2019), is brought to enforce the consumer-privacy provisions of the
Telephone Consumer Protection Act, a federal statute enacted in
1991, in response to widespread public outrage about the
proliferation of intrusive, nuisance telemarketing practices.
The Defendant made repeated automated and pre-recorded
telemarketing calls to the cellular telephone number of
individuals, including the Plaintiff, to promote their services in
violation of the TCPA. Calls were also made to residential
telephone lines despite their presence on the National Do Not Call
Registry, such as the Plaintiff's.
The Plaintiff contends he never consented to receive the calls.
Because telemarketing campaigns generally place calls to hundreds
of thousands or even millions of potential customers en masse, the
Plaintiff bring this action on behalf of a proposed nationwide
class of other persons, who received illegal telemarketing calls
from or on behalf of the Defendant.
George Moore is a resident of Illinois in this District.
Switch Energy offers utility services in the Midwest, Mid-Atlantic
and New England regions.[BN]
The Plaintiff is represented by:
Anthony Paronich, Esq.
PARONICH LAW, P.C.
350 Lincoln St., Suite 2400
Hingham, MA 02043
Phone: (508) 4221-1510
Email: anthony@paronichlaw.com
THE PERSONAL: $2.2MM Creditor Score Class Action Settlement OK'd
----------------------------------------------------------------
Greg Meckbach, writing for Canadian Underwriter, reports that a
$2.2 million settlement of a class-action privacy lawsuit against
The Personal has been approved by a judge, plaintiffs' law firm
Waddell Phillips Professional Corporation announced.
The lawsuit arose after The Personal asked some auto claimants if
it could access their credit scores. This resulted in a complaint
with the federal Privacy Commissioner and the launch of the class
action in Federal Court.
The settlement -- approved recently by Justice Benjamin Glustein of
the Ontario Superior Court of Justice -- was originally announced
this past August.
The Personal was originally checking some clients' credit scores
when investigating auto claims but has since stopped doing this, a
DGIG spokesperson Canadian Underwriter earlier. DGIG said at the
time The Personal was checking the credit scores only if the
claimants consented. The intent was to triage claims for a possible
second look in case there were signs of possible fraud.
The Personal has not admitted any liability or wrongdoing.
A representative plaintiff, Kalevi Haikola, made an auto accident
benefits claim with The Personal in 2012. Haikola alleges he was
asked to give The Personal permission to obtain his credit score.
Of the $2.2 million, $585,000 will go to the plaintiffs' class
lawyers, an honorarium of $15,000 will go to Haikola and the
remainder will be divided among the members of the class who either
automatically qualify for a payment or who submit a valid claim
form before the claim deadline of February 7, 2020, Waddell
Phillips said on Oct. 28.
There are about 8,525 class members, meaning that if every class
member receives a payment, then each would receive about $150.
The settlement is comprised of people who: had a valid auto policy
with The Personal Insurance Company policy between January 2012 and
May 2019; made a claim under that policy with The Personal during
the same time frame; and consented to the collection and/or use of
their credit score by The Personal or its agents as part of the
fraud prevention and detection needs of The Personal's claims
management process.
Clients may opt out of the class-action and file their own claims
against The Personal, reports CA2 Inc., a firm appointed to manage
the claims from the settlement. The deadline to opt out is December
6.
Class members who are currently insured by The Personal do not need
to do anything to make a claim. They would be automatically
included in the distribution of the settlement fund, unless they
choose to opt out, says CA2. Class members who are no longer
customers of The Personal and who wish to receive compensation must
complete an online claim form or email a completed claim form to
CA2. [GN]
THRIFT BOOKS: Guglielmo Files ADA Suit in S.D. New York
-------------------------------------------------------
A class action lawsuit has been filed against Thrift Books Global,
LLC. The case is styled as Joseph Guglielmo, on behalf of himself
and all others similarly situated, Plaintiff v. Thrift Books
Global, LLC, Defendant, Case No. 1:19-cv-11053-JGK (S.D.N.Y., Dec.
2, 2019).
The Plaintiff filed the case under the Americans with Disabilities
Act.
ThriftBooks is a large web-based used bookseller headquartered near
Seattle, Washington. ThriftBooks sells used books, DVDs, CDs, VHS
tapes, video games, and audio cassettes.[BN]
The Plaintiff is represented by:
Russel Craig Weinrib, Esq.
Stein Saks PLLC
285 Passaic St., Suite 5
Hakensack, NJ 07601
Phone: (201) 282-6500
Email: rweinrib@steinsakslegal.com
TRICOPIAN INC: Faces Class Action Over Swap Fees
------------------------------------------------
Jason Diffendal, writing for WDW News Today, reports that a
California law firm has filed a putative class-action lawsuit in
the Southern District of California against Tricopian, Inc. and
SaveMe Batteries North America, the companies behind the FuelRod
portable charger and swapping machines at Walt Disney World and the
Disneyland Resort.
From the court filing:
". . . This class action seeks compensatory damages, restitution,
disgorgement of profits, costs of suit, actual damages, attorneys'
fees, costs, declaratory judgment, injunctive relief, and any other
relief that this Court deems just and proper arising from
Defendants' breach of contract, and unfair, unlawful, unethical,
fraudulent, misleading, unconscionable, and/or deceptive business
policies and practices related to Defendants' manufacturing,
advertising, marketing, and/or sales of their FuelRod product and
related service."
The case, filed by the law office of Francis J. Flynn, Jr., with
named plaintiff Gabriel Veasey, of Sarasota, Florida, claims that
FuelRod's "unilaterally making such a fundamental change in the
nature of its support of the product so as to deprive consumers of
the primary benefit of the bargain." The marketing message of "Free
Unlimited Swaps" was the primary benefit of the product, the suit
claims, since the FuelRod charger itself was quite inferior to
other chargers costing much less.
We've covered the upcoming changes to the FuelRod kiosks, and the
lawsuit shows photos of other kiosks located at airports that, just
like the machines at the Disney parks, advertised Unlimited Free
Swaps.
The suit also includes photos of a FuelRod kiosk at Epcot
prominently advertising the Free Unlimited Swapping.
The suit goes on to reference our article when the kiosks were
changed to eliminate the "free" moniker in relation to swapping.
The court filing claims this is a violation of California False
Advertising Law, California Unfair Competition Law, California
Consumer Legal Remedies Act, and Breach of Contract. [GN]
TRW AUTOMOTIVE: Sixth Circuit Appeal Initiated in UAW ERISA Suit
----------------------------------------------------------------
Plaintiffs Ronald Gardner, Martin Lamer, Kim Taskila, UAW
International and John Yasso filed an appeal from a court ruling
issued in their lawsuit styled UAW International, et al. v. TRW
Automotive U.S. LLC, Case No. 2:11-cv-14630, in the U.S. District
Court for the Eastern District of Michigan at Detroit.
The appellate case is captioned as UAW International, et al. v. TRW
Automotive U.S. LLC, Case No. 19-2262, in the United States Court
of Appeals for the Sixth Circuit.
The lawsuit alleges violations of the Employee Retirement Income
Security Act.
As previously reported in the Class Action Reporter, the Defendant
appealed a ruling in the lawsuit. That appellate case is entitled
UAW International, et al. v. TRW Automotive U.S. LLC, Case No.
18-1160.[BN]
Plaintiffs-Appellants UAW INTERNATIONAL, MARTIN LAMER, JOHN YASSO,
KIM TASKILA and RONALD GARDNER, for themselves and others similarly
situated, are represented by:
William Arthur Wertheimer, Jr., Esq.
LAW OFFICE OF WILLIAM ARTHUR WERTHEIMER, JR.
550 Vanderbilt Avenue, Apartment 610
Brooklyn, NY 11238
Telephone: (248) 396-2125
E-mail: billwertheimer@gmail.com
Defendant-Appellee TRW AUTOMOTIVE U.S. LLC is represented by:
Gregory Valentin Mersol, Esq.
BAKER & HOSTETLER LLP
127 Public Square, Suite 2000
Cleveland, OH 44114
Telephone: (216) 861-7935
E-mail: gmersol@bakerlaw.com
UNITED STATES: Ct. Limits Detainees' Ability to Bring Class Action
------------------------------------------------------------------
Aditi Shah, writing for LawFare, reports that a U.S. district court
has limited the ability of immigration detainees to use an
important procedural tool to challenge their detention. With the
ruling, detainees are restricted in their ability to bring a Rule
23(b)(2) class action to assert a right to individualized bond
hearings under the Due Process Clause. The order lays bare the
consequences of the Supreme Court's 2018 decision in Jennings v.
Rodriguez and foreshadows increased difficulty for detained
asylum-seekers hoping to challenge their prolonged imprisonment
without bond hearings.
Two years ago, two petitioners brought a class action lawsuit
against the federal government, asking whether detaining
asylum-seekers who passed their initial credible fear interview for
more than six months without a bond hearing violates the
Immigration and Nationality Act or the Due Process Clause of the
Fifth Amendment. The petitioners, Hanad Abdi and Johan Barrios
Ramos, sued on behalf of themselves and other asylum-seekers
detained pursuant to 8 U.S.C. Sec. 1225(b)(l)(B)(ii), a subsection
of the federal statute governing the inspection and detention of
immigrants who are considered "applicants for admission" to the
United States, at the Buffalo Federal Detention Facility. In
December 2017, Judge Elizabeth Wolford of the U.S. District Court
for the Western District of New York certified a subclass under
Rule 23(b)(2) of the Federal Rules of Civil Procedure. The subclass
Wolford certified was as follows:
All arriving asylum-seekers who are or will be detained at the
Buffalo Federal Detention Facility, have passed a credible fear
interview, and have been detained for more than six months without
a bond hearing before an immigration judge.
In September, however, Wolford issued a decision decertifying the
subclass, concluding that it no longer met the requirements of Rule
23(b)(2). What changed in the 21 months since her initial ruling?
In February 2018, the Supreme Court ruled in Jennings v. Rodriguez.
In Jennings, the court held that the Immigration and Nationality
Act does not give detained immigrants the right to periodic bond
hearings at six-month intervals.
Besides this narrow holding, the court did not address the Jennings
respondents' constitutional due process claims and instead remanded
the case to the U.S. Court of Appeals for the Ninth Circuit to
consider the due process arguments. However, Justice Samuel Alito,
writing for the Supreme Court, advised the Ninth Circuit to first
assess whether a Rule 23(b)(2) class action is an appropriate
mechanism to resolve the respondents' due process claims before the
circuit court makes any decision about the merits of the
respondents' constitutional claims. While these issues remain open
in the Jennings remand, Wolford most recently ruled that the
subclass is no longer appropriate because Jennings invalidated the
statutory six-month rule that held the subclass together. This post
examines Wolford's decision to decertify the subclass and the
implications of her ruling for detained immigrants seeking to use
the class device to assert due process rights.
Many cases in which detained immigrants challenge their prolonged
incarceration, like Jennings and Abdi, are class actions. A class
action is a type of lawsuit brought by one or more plaintiffs on
behalf of a larger group of similarly situated individuals or
parties. Rule 23(a) sets out four requirements that must be met in
order for a person or party to establish a class action: "(1) the
class is so numerous that joinder of all members is impracticable;
(2) there are questions of law or fact common to the class; (3) the
claims or defenses of the representative parties are typical of the
claims or defenses of the class; and (4) the representative parties
will fairly and adequately protect the interests of the class."
In addition to satisfying these four conditions, the suit must be
one of the four types of class actions specified in Rule 23(b).
Rule 23(b)(2) allows for a class action where "the party opposing
the class has acted or refused to act on grounds that apply
generally to the class, so that final injunctive relief or
corresponding declaratory relief is appropriate respecting the
class as a whole." Many Rule 23(b)(2) class actions have
historically been and continue to be cases concerning civil and
constitutional rights where plaintiffs seek injunctive or
declaratory relief for the entire class.
In the Jennings case, Alejandro Rodriguez, a Mexican citizen and
lawful permanent resident in the United States, represented a class
certified under Rule 23(b)(2). The class comprised immigrants
detained for more than six months without a bond hearing and was
divided into subclasses for each of the four provisions of the
immigration statute pursuant to which they were held. Rodriguez and
the other named plaintiffs argued that they and the other class
members had statutory and constitutional rights to periodic
individualized bond hearings, and they sought declaratory and
injunctive relief to that effect. The Ninth Circuit affirmed the
district court's grant of a permanent injunction and held that the
immigration statute provisions implicitly required periodic bond
hearings at six-month intervals. After the Ninth Circuit ruling,
the government applied to the Supreme Court for certiorari.
As Andrew Patterson noted previously in Lawfare, the Supreme Court
held that the Ninth Circuit misapplied the doctrine of
constitutional avoidance in interpreting the immigration statute to
require periodic bond hearings. Although the text of the statute
did not state that periodic bond hearings for detainees are
required, the Ninth Circuit discerned that prolonged detention
without a bond hearing would raise due process concerns and so it
invoked the doctrine of constitutional avoidance to read the
statutory provisions as implicitly requiring a bond hearing every
six months. Courts apply the doctrine of constitutional avoidance
to avoid striking down statutes where there's a plausible
interpretation of the statute that doesn't present constitutional
concerns. The Supreme Court saw the Ninth Circuit's application of
constitutional avoidance as incorrect because there was no textual
support for the Ninth Circuit's interpretations, making the
interpretations implausible. Because the Ninth Circuit resolved the
class claims on statutory and not constitutional grounds in their
initial ruling, which the Supreme Court ruled was erroneous, the
court remanded the case to the Ninth Circuit to consider the due
process arguments.
However, as mentioned above, Justice Alito instructed the Ninth
Circuit to address certain procedural issues before adjudicating
the constitutional claims. First, Alito wrote that the Ninth
Circuit should assess whether it continues to have jurisdiction to
issue classwide injunctive relief under 8 U.S.C. Sec. 1252(f)(1),
which doesn't allow courts, other than the Supreme Court, to have
jurisdiction to "enjoin or restrain the operation" of Secs.
1221-1232 except with respect to an individual immigrant,
prohibiting federal courts from issuing classwide injunctions. The
Ninth Circuit originally held that Sec. 1252(f)(1) did not bar
classwide injunctive relief in this case because the detainees were
seeking to enjoin conduct that wasn't authorized by the statute,
rather than enjoining conduct that was authorized pursuant to "the
operation" of the statutes, but Alito noted this reasoning may not
apply for the constitutional claim. Alito advised the circuit court
to consider if the class can be sustained for declaratory relief
alone, if the court finds it does not have jurisdiction to issue
classwide injunctive relief. Because Rule 23(b)(2) permits "final
injunctive relief or corresponding declaratory relief," the court
may still have jurisdiction to issue a declaratory judgment -- for
example, that detention for six months or more without periodic
bond hearings is unconstitutional -- notwithstanding Sec.
1252(f)(1).
Second, and more relevant here, Alito wrote that the court should
"consider whether a Rule 23(b)(2) class action continues to be the
appropriate vehicle for respondents' claims." Alito offered two
reasons to reevaluate whether a Rule 23(b)(2) class is still
appropriate. First, because the Ninth Circuit already recognized
that some class members in this case may not have a constitutional
right to bond hearings, the class may no longer satisfy the Supreme
Court's standard articulated in Wal-Mart Stores, Inc. v. Dukes, 564
U.S. 338, 360 (2011), that "Rule 23(b)(2) applies only when a
single injunction or declaratory judgment would provide relief to
each member of the class." Second, because the Supreme Court has
described the Due Process Clause as "flexible" and based on each
particular situation, a Rule 23(b)(2) class litigated on common
facts may not be the appropriate vehicle to resolve the
respondents' due process claims.
Putting aside the instructions above for a moment, as a reminder,
the narrow holding of Jennings was that the immigration statute
provisions, including Sec. 1225(b), do not require periodic bond
hearings at six-month intervals. In the Abdi case, the original
basis for certifying the subclass was the same justification that
Jennings eliminated: that § 1225(b) requires bond hearings after
six months in immigration detention. What impact did invalidating
the statutory six-month rule have? Almost eight months after the
Jennings decision, the government filed a motion in Abdi to vacate
Wolford's prior grant of a preliminary injunction, and a few months
later, it filed a motion to decertify the subclass. The
government's arguments for decertifying the subclass resonated
strongly with Alito's points: Because Jennings eliminated the
statutory basis for certifying the subclass, and because the
subclass's due process claims require individualized consideration
and are thus incapable of uniform resolution as Rule 23 requires,
the subclass should be decertified. The petitioners in this case
did not dispute that Jennings invalidated the statutory basis for
the injunction and subclass certification. As a result, the central
question for Wolford was this: Without the statutory six-month
bright-line rule -- the glue that held the subclass together -- is
the subclass still appropriate to adjudicate the constitutional due
process claim?
In considering this issue, Wolford did not decide if the individual
subclass members in this case have due process rights to bond
hearings after six months in detention. Instead, she focused on the
narrower question of whether the "flexible notions of due process
categorically require a bond hearing after the passage of six
months' time." To Wolford, the answer was no because, based on her
analysis, deciding whether an individual detained pursuant to Sec.
1225(b) is entitled to a bond hearing under the Due Process Clause
"is necessarily a fact-specific and individualized determination."
It was this determination that led Wolford to decertify the
subclass, but what informed her determination in the first place?
Wolford's analysis focused on two points: first, that Jennings
eliminated the subclass glue, the statutory six-month bright-line
rule; and second, that in the absence of the six-month rule, the
flexibility inherent to the due process inquiry prevents classwide
injunctive or declaratory relief in this case. When this subclass
was initially certified, Wolford rejected the government's argument
that it was necessary to consider each subclass member's individual
circumstances to determine if the individual was entitled to a bond
hearing. In part, Wolford made this decision because, in the
pre-Jennings world, the government was statutorily obligated to
provide a bond hearing after six months in detention. The shared
characteristic that all subclass members were detained for at least
six months was the "linchpin" to Wolford's initial conclusion that
each subclass member could be entitled to an individualized bond
hearing, justifying the injunction and the subclass certification.
However, as we know, Jennings eliminated the statutory basis for
the temporal justification. The thrust of Wolford's decision, thus,
was why she did not find that there was a constitutional basis for
the six-month rule.
To determine the constitutional issue, Wolford assessed how other
courts post-Jennings have decided whether the length of immigration
detention is unreasonable or unjustified as a matter of due
process. Because the Second Circuit hasn't yet established a
standard, Wolford looked to other district courts in the circuit
and found that they have adopted a case-by-case approach and a
multifactor test. A year earlier, Judge John Koeltl of the Southern
District of New York summarized seven factors the court considered
in the context of 8 U.S.C. Sec. 1226(c), which governs the
detention of criminal immigrants, including "the party responsible
for the delay" and "whether the detention facility is meaningfully
different from a penal institution for criminal detention." Other
district courts have also applied the multifactor test in the Sec.
1225(b) context and produced mixed outcomes, with some finding that
due process requires an individualized hearing and others finding
that it doesn't. Moreover, Alito's invocation of the standard
articulated in Dukes—that the Rule 23(b)(2) class is appropriate
when a single injunctive or declaratory remedy can be applied "only
as to all of the class members or as to none of them" (quoting a
law review article)—and emphasis on the flexibility of due
process bolstered Wolford's conviction that "a bright-line rule
would constrict the flexibility inherent to a due process inquiry
and is inconsistent with the Supreme Court's teachings in
Jennings." These analyses led Wolford to conclude that even if a
majority of the subclass members would be entitled to a bond
hearing based on the individualized due process inquiry, in the
absence of a bright-line temporal rule that has statutory or
constitutional support, there's no categorical, classwide
entitlement to bond hearings. So, the subclass can't stand.
Before Wolford reached her decision, in opposition to the
government's motions to vacate the preliminary injunction and
decertify the subclass, Abdi and Ramos unsuccessfully attempted to
salvage the subclass. To argue that a six-month bright-line rule
for immigration detention is required under due process, Abdi and
Ramos analogized to bright-line temporal rules in other detention
contexts like the criminal context, but Wolford was not ultimately
convinced by such efforts given the "materially different context
of immigration detention." As a result, and as noted above, Wolford
concluded that a single injunction could not apply to the subclass.
In the alternative, Abdi and Ramos encouraged Wolford to issue a
declaratory judgment that "continued mandatory immigration
detention for six months or more is unconstitutional as applied to
each subclass member." Wolford dismissed this point because
declaratory judgment would require the same thing as the
injunction: It would be necessary to find that the Due Process
Clause categorically requires a bond hearing after six months,
which Wolford ruled it does not.
The petitioners also urged the court to follow the approach the
U.S. District Court for the District of Massachusetts took in Reid
v. Donelan, a post-Jennings decision. In that case, the court
denied the motion to decertify the class of immigrants detained
under § 1226(c), determining that "the class still presents the
common threshold question of whether their detention after six
months without a bail hearing or reasonableness review violates the
Constitution." However, Wolford was unpersuaded by petitioners'
invocation of the Reid ruling because, in her view, the
petitioners' arguments did not address Jennings's invalidation of
the six-month bright-line rule. In fact, in a subsequent decision
in the Reid case, the court there also denied plaintiffs' requests
for a classwide injunction ordering bond or reasonableness hearings
or a declaratory judgment that due process requires automatic bond
or reasonableness hearings after more than six months in detention
on the basis that due process requires consideration of individual
circumstances. Essentially, Wolford's decision came out of the
conclusion that the petitioners' arguments didn't reach the core of
her analysis: Without a viable bright-line temporal rule,
individual circumstances can require a bond hearing for some
subclass members and not for others even if they are all detained
for the same length of time. As a result, a single injunction or
declaratory judgment can't be issued, failing Rule 23(b)(2).
Yet, by decertifying the subclass, the court didn't close other
doors available to subclass members. The district court's actual
holding, not unlike Jennings, is narrow: It "merely holds that the
Fifth Amendment's Due Process Clause does not categorically require
that bond hearings take place after six months of immigration
detention, and that without this pre-Jennings temporal limitation,
the subclass must be decertified pursuant to Rule 23(b)(2) and
Dukes." The plaintiffs can, for example, amend their pleadings and
pursue a new class definition, as other courts have allowed in
light of Jennings. However, the court's emphasis on the flexibility
and individualized nature of due process presents a challenge for
detainees like Abdi and Ramos: Is it possible to craft a class
definition that allows categorical application in a due process
inquiry?
One potential avenue echoes the plaintiffs' and the court's
approach in Reid, where the court did grant a classwide declaratory
judgment that "mandatory detention without a bond hearing under 8
U.S.C. Sec. 1226(c) violates due process when the detention becomes
unreasonably prolonged in relation to its purpose in ensuring the
removal of deportable criminal aliens." The court also stated that
length is the most important factor in judging reasonableness, and
that mandatory detention for over a year without a bond hearing is
likely to be unreasonable. This declaratory judgment, however, is
different from the declaratory relief the Abdi petitioners sought
because it does not announce that detainees have a due process
right to a bond hearing after six months in detention. Under the
Reid declaratory judgment, detainees must still bring an individual
habeas petition to challenge their detention and seek a bond
hearing. Because this approach is focused on the type of relief
sought, rather than the class definition, the Abdi petitioners
would not necessarily need to redefine the subclass to pursue the
declaratory judgment in Reid. However, this approach still would
not help the Abdi subclass members achieve classwide relief on the
question of whether they are entitled to a bond hearing –– they
would still have to do what they were trying to avoid by using the
class device in the first place, litigating individually for the
right to a bond hearing.
The other option, pursuing a new class definition, will be
especially challenging, as I mentioned earlier, because Wolford's
answer to the subclass's question –– does due process require a
bond hearing after six months in immigration detention –– is
that, under due process, it depends on each subclass member's
individual circumstances. For the Abdi lawyers to redefine the
subclass to satisfy Wolford's analysis, they would need to
formulate a bright-line rule pertaining to the right to a bond
hearing that they can show is required under the Due Process Clause
-- a rule that could serve as new glue to hold the subclass
together. However, Wolford's answer that "the fact-specific
circumstances of each alien will dictate whether each is or is not
entitled to a bond hearing" appears antithetical to a possibility
of establishing another categorically unifying bright-line rule.
If the Abdi lawyers were to redefine the class tomorrow, for
example, as all asylum-seekers detained at the Buffalo Federal
Detention Facility for more than a year without a bond hearing due
to delays at no fault of their own, they would encounter the same
obstacle: They would need to show that due process requires a bond
hearing after a year when the delays were at no fault of the
detainees to maintain the class. This presents a significant
challenge because Wolford's analysis highlights that, in light of
Jennings, Dukes, and post-Jennings decisions, due process requires
consideration of various individualized circumstances and so the
class would fail Rule 23(b)(2). Thus, although Wolford's precise
ruling is narrow, the premises of her conclusion make it hard to
imagine an adequate class definition, at least in the context of
pursuing a due process right to a bond hearing, in the
post-Jennings world.
One of the advantages of the Rule 23(b)(2) class action, and why it
is especially useful in cases like Jennings and Abdi, is that it
allows plaintiffs to challenge conduct on the large-scale level at
which it is occurring. Although plaintiffs can always bring
individual suits, they risk their cases becoming moot before they
are resolved, something class certification sometimes provides an
exception for. The class device also carries a financial advantage:
It saves lawyers and public interest groups time and resources,
encouraging them to litigate on behalf of indigent immigrant
detainees. Abdi represents a limitation on the availability of this
useful, efficient and common tool to detained immigrants seeking
release. While we do not yet know the long-term impact of Jennings
on how expansive this limitation will be, Abdi hints that the fate
of Rule 23(b)(2) class actions for detained immigrants pursuing due
process relief is in trouble. Given the multifactor approach that
courts have endorsed, it's difficult to imagine any bright-line
rule being sufficient to hold together future classes of
immigration detainees pursuing due process rights to a bond
hearing. Abdi signals movement in a still-developing trend
post-Jennings on the availability of the Rule 23(b)(2) class device
and ultimately on the ability of detained immigrants to challenge
prolonged incarceration. [GN]
VALENTINE & KEBARTAS: Kucur Files FDCPA Suit in E.D. New York
-------------------------------------------------------------
A class action lawsuit has been filed against Valentine & Kebartas,
LLC. The case is styled as Suleyman Kucur, individually and on
behalf of all others similarly situated, Plaintiff v. Valentine &
Kebartas, LLC, Defendant, Case No. 1:19-cv-06769 (E.D.N.Y., Dec. 2,
2019).
The Plaintiff filed the case under the Fair Debt Collection
Practices Act.
Valentine and Kebartas, LLC (V&K) provides collection services to
public and private sector clients.[BN]
The Plaintiff is represented by:
Craig B. Sanders, Esq.
Barshay Sanders, PLLC
100 Garden City Plaza, Suite 500
Garden City, NY 11530
Phone: (516) 203-7600
Fax: (516) 281-7601
Email: csanders@barshaysanders.com
WALMART-STORES: Court Dismantles Sex Discrimination Class Action
----------------------------------------------------------------
Patrick Dorrian and Paige Smith, writing for Bloomberg Law, report
that a group of female Walmart Stores Inc. employees who allege
systemic sex discrimination cost them promotions and better pay
must pursue 18 separate lawsuits because of significant fact
differences in their claims, the Northern District of California
said in a ruling that's part of the aftermath of a dismantled class
action against the retail giant.
Each woman worked for a different supervisor at a different Walmart
at different times, the court said. That means the circumstances of
the bias each allegedly experienced didn't arise out of the same
occurrence or transaction, which is necessary for claims by
multiple plaintiffs to be joined in one suit, the court said,
granting Walmart's motion to sever.
The outcome is similar to that in a pair of cases against Walmart
in federal court in Florida, where a judge ruled in July that 79
other female current or former employees had to pursue their claims
in individual suits. All three cases stem from the proposed about
1.5 million-member sex discrimination class action against the
retailer that the U.S. Supreme Court invalidated in its landmark
2011 Wal-Mart Stores Inc. v. Dukes decision.
The justices ruled in Dukes that the proposed class failed to
identify a common policy to link their individual circumstances.
The "individualized proof that militated against class
certification" in Dukes "also precludes joinder" of the 18
plaintiffs claims here, Judge Charles R. Breyer said.
Following Dukes, attorneys representing the workers crafted a new
litigation strategy, characterized by curated individual lawsuits
instead of large class actions, to finally push courts to hear the
merits of the bias cases brought against Walmart. Until now,
procedural hurdles have stopped that from happening, or the cases
have been individually settled by the retail giant.
At least a dozen individual lawsuits following this pattern have
been filed since February 2019, Cohen Milstein partner Christine
Webber previously told Bloomberg Law. Webber was synchronizing many
of the individual lawsuits, including this case, but isn't
representing the workers in the dispute before Breyer. The cases
were filed in multiple states.
Wider Strategy Tested
In the Oct. 25 ruling, Breyer said 17 women can pursue disparate
impact pay discrimination claims against Walmart based on the
alleged system of subjective decision-making the Supreme Court
rejected as a common employment practice suitable for class
treatment in Dukes. The various pay policies they describe as
discriminating against women are so intertwined they're "incapable
of separate analysis," Breyer said.
Given statistical disparities in the pay of male and female Walmart
employees, the 17 women may be able to show the pay policies "as a
whole" resulted in unintended pay bias against them, the court
said. One woman was too late with her pay bias claim, it said.
The lawsuits are an attempt to "try to repackage" claims of gender
discrimination that already have failed, said a Walmart
spokesperson in an Oct. 28 email.
"We've maintained that if someone has a legitimate claim of being
treated unfairly, they should have that timely, individual claim
heard by the court—but not grouped with other claims in a way the
law does not recognize," the spokesperson said. "We have asked the
Court to sever the cases and provide a process to hear the
individual allegations that are more than 15 years old."
The various Walmart promotion policies the women describe also may
be actionable unintentional bias for the same reason, if they can
add to their allegations of statistical sex-based disparities,
Breyer said. He granted 17 women leave to amend that claim in their
individual cases. One woman's failure-to-promote claim was
untimely, he said.
The court rejected Walmart's argument the disparate impact claims
based on policies implemented in 2005 and 2006 should be barred as
untimely because they weren't part of the Dukes class suit. The
court said they were "similar enough" claims to benefit from class
tolling rules.
Scott Wagner & Associates P.A., which represents the 18 women,
didn't respond to a request for comment. Littler Mendelson P.C.
represents Walmart, and the company spokesperson spoke on behalf of
the firm.
The case is Renati v. Wal-Mart Stores, Inc., 2019 BL 410673, N.D.
Cal., No. 19-cv-02525, 10/25/19. [GN]
WHITEWAVE SERVICES: Mislabels Vanilla Almond Creamer, Newton Says
-----------------------------------------------------------------
Lespaul Newton, individually and on behalf of all others similarly
situated v. Whitewave Services, Inc., Case No. 1:19-cv-06743
(E.D.N.Y., Nov. 30, 2019), seeks damages under consumer protection
laws arising from the Defendant's misleading representations on
their vanilla almond creamer products' packaging.
The Product's front label and advertising makes direct
representations with respect to its primary recognizable and
characterizing flavor by the word "Vanilla" and/or vignette. Since
vanilla is the only flavor with its own standard of identity, its
labeling is controlled not by the general flavor regulations but by
the standards for vanilla ingredients. This means that if a product
is represented as being characterized by vanilla yet also contains
non-vanilla vanillin, the label and packaging must declare the
presence of vanillin and identify it as an artificial flavor.
The Plaintiff notes that the Product's front label (1) represents
the Product's characterizing flavor is vanilla, and (2) lacks any
qualifying terms, thus, confirming to consumers they contain a
sufficient amount of the characterizing food ingredient, vanilla
(flavoring or extract) to independently flavor the Products. The
Plaintiff contends that these representations are misleading
because the Product does not contain the amount, type and/or
percentage of vanilla as a component of its flavoring, which is
required by law and consistent with consumer expectations.
Had the Plaintiff and class members known the truth, they would not
have bought the Product or would have paid less for it, says the
complaint. The Product also contains other representations, which
are misleading and deceptive. As a result of the false and
misleading labeling, the Product is sold at a premium price,
approximately no less than $5.99 per 9 FL OZ, excluding
tax--compared to other similar products represented in a
non-misleading way, says the complaint.
The Plaintiff purchased one or more of the Products for personal
use and consumption.
Whitewave Services, Inc. manufactures, distributes, markets, labels
and sells almond creamer products purporting to be flavored
exclusively with vanilla under their Silk brand.[BN]
The Plaintiff is represented by:
Spencer Sheehan, Esq.
SHEEHAN & ASSOCIATES, P.C.
505 Northern Blvd., Suite 311
Great Neck, NY 11021
Telephone: (516) 303-0552
Facsimile: (516) 234-7800
E-mail: spencer@spencersheehan.com
- and -
Michael R. Reese, Esq.
REESE LLP
100 West 93rd Street, 16th Floor
New York, NY 10025
Telephone: (212) 643-0500
Facsimile: (212) 253-4272
E-mail: mreese@reesellp.com
[*] Australian Lawyers Reject Push for Class Action Regulation
--------------------------------------------------------------
The Australian Associated Press reports that one of Australia's
biggest law firms has hit back at an employer group's campaign
aimed at reining in "the recent explosion" in class actions.
Australian Industry Group chief executive Innes Willox has urged
the Morrison government to regulate and limit speculative and
costly class actions with a seven-point plan to address the issue.
"The recent explosion in class action claims by plaintiff law
firms, typically backed by overseas litigation funders, is a clear
and present danger to Australia's fragile economy," he said on Oct.
30.
But leading class action lawyers have pointed to reports published
in the past by the Australian and Victorian law reform commissions,
which found class actions are well regulated.
Slater and Gordon head of class actions Ben Hardwick said both
bodies found the system was providing justice for Australians.
"Scare campaigns by the likes of Ai Group fly in the face of
objective evidence from independent bodies such as the ALRC that
the system is not broken," he told AAP.
Ai Group estimates $10 billon was claimed against businesses in the
class actions filed in the past financial year, with almost all of
the cases still before the courts.
Mr Willox warned class actions were driving up business costs
through higher insurance premiums and making it harder to get
loans.
"We've become a bit of honey pot. There's almost been a gold rush
towards Australia with litigants coming here because they know
we're easy pickings," Mr Willox told the ABC.
"The concern here is Australia's become almost the world champion
of class actions because of lax laws and regulations."
Under the employer group's seven point plan, litigation funders
would be regulated through the Australian Securities and
Investments Commission.
There would be limits on returns to plaintiff lawyers, who would
also be exposed to costs for unsuccessful actions.
Ai Group also wants the government to raise the minimum number of
people involved to start a class action from six, while banning
litigation funders from exerting control over proceedings.
Slater and Gordon is working on 17 class actions including one
targeting excessive superannuation fees and another on behalf of
stonemasons suffering respiratory diseases like scoliosis.
Mr Hardwick said the current system gave courts adequate regulatory
powers.
"Court supervision of all aspects of class actions such as
litigation funding and legal fees means that the interests of both
corporations and claimants are well protected," he said.
"Courts regularly use their powers place limits on the size of
legal costs and the commissions that litigation funders are
entitled to receive." [GN]
[*] Class Action Settlement Payout Process May Become Easier
------------------------------------------------------------
Ted Knutson, writing for Forbes, reports that if you get a letter
in the mail saying you are eligible for money from a class action
settlement, the process to get paid may seem excruciatingly
cumbersome.
Equifax data breach anyone?
But the red faces that come from anger over red tape may be on
their way out.
Moves are afoot to make direct payment by PayPal and the alike more
common rather and waiting for a check in the mail and trying to
find the time to cash it less common.
Burdensome claims forms?
Eventually they could be filled out automatically with your role
only to check for accuracy.
The efforts to breaking down barriers to joining class action
payments and aggrieved consumers was the subject of a Federal Trade
Commission workshop on Oct. 29 in Washington which brought together
FTC specialists and class experts from around the country.
Typically, only 9 percent of people respond when they get a notice
they are eligible for a payment from a class action settlement.
While going through the circa 2019 paperwork can be challenging,
accomplishing the exercise can be time well spent stressed
prominent consumer class action attorney Liz Cabraser.
If you don't go to the kitchen table to fill out the forms, she
warned you could be leaving money on the table:
"The money in a settlement from people who don't file claims goes
to make the payments for people who do bigger."
She noted payments can range from $20 for a small purchased to
upwards of $40,000 for individuals who bought a Volkswagen Diesel
that was part of an emissions rigging scandal.
An FTC study issued in September found the use of visually
prominent, "plain English" language to describe payment
availability in class action claims notices sent to consumers
increased the success.
In addition, sending postcards that included a detachable class
action claim form resulted in more people applying for the money
they're entitled to.
Companies rarely put information about class action settlements
against them on their websites because they view it as an admission
of harming consumers when they didn't acknowledge guilt in the
agreement, said U.S. Magistrate Judge of the United States District
Court for the Northern District of California.
Corley added no notice is going to get a 100 percent response rate
from the people eligible -- and that's proper because some
individuals won't reply because they're upset data mining or other
potentially privacy intrusive ways have found them.
"No notice is going to be perfect. Some people don't like class
actions and some people don't think they have been harmed," said
Hassan Zavareel.
To make the claims process less imperfect, Cabraser urged the
process be made interactive to let consumers communicate back and
ask questions.
"No one needs to motivate someone to go to Amazon for an hour and
spend money," said the attorney.
A means to this end she advocated is to have lawyers put
information about a class action suit put information about it on
their websites with orders, schedules and important briefs so
people can follow along. [GN]
[*] More Labor Depreciation Class Actions Filed This Past Quarter
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Mark Johnson, Esq. -- mjohnson@bakerlaw.com -- of BakerHostetler,
in an article for JDSupra, reported that this past quarter saw more
of the same in labor depreciation and tag and title class action
activity, with a few decisions on less commonly recurring claims
and one that's an oldie but (in some states for the plaintiffs'
bar) a goodie.
Upcoming Key Labor Depreciation Decisions
Since last quarter's report, more labor depreciation class actions
have been filed in Tennessee and now in Mississippi and South
Carolina. Butler v. The Travelers Home and Marine Ins. Co., Case
no. 3:19-cv-02621 (D. S.C.) (filed Sept. 16); Ferguson v. American
Family Home Ins. Co., Case no. 3:19-cv-00728 (S.D. Miss.) (filed
Oct. 11). Some of the existing Tennessee cases have been joined by
Mississippi insureds. These cases follow the Tennessee Supreme
Court's decision holding that a policy that does not expressly
refer to labor depreciation in the definition of actual cash value
or depreciation is ambiguous, and is construed against the insurer.
Lammert v. AutoOwners (Mut.) Ins. Co., 2019 WL 1592687 (April 15,
2019). Mississippi claims are based on guidance by the Mississippi
Department of Insurance that if labor is depreciated, the policy
should clearly state as much. Bulletin 2017-8 (Aug. 4, 2017).
The appearance of Mississippi insureds in the Tennessee cases is no
accident. The Fifth Circuit recently heard oral argument on whether
a class should have been certified in Mitchell v. State Farm, which
originated in the Northern District of Mississippi. The district
court in that case had also denied a motion to dismiss, finding
that labor should not have been depreciated. 335 F.Supp.3d 847
(2018); 327 F.R.D. 552 (2018).
Similarly, in July the Sixth Circuit accepted a discretionary
appeal of the district court's certification of a class action in
Hicks v. State Farm Fire and Cas. Co., 2019 WL 846044
(E.D. Ky. Feb. 21, 2019). Case no. 19-503. Just last year the court
of appeals had ruled in the same case that Kentucky law prohibited
deduction of labor depreciation. Hicks v. State Farm Fire and Cas.
Co., 751 Fed. Appx. 703. Since Tennessee is within the Sixth
Circuit, the outcome of that appeal may have a significant impact
on the Tennessee labor depreciation cases, just as the decision by
the Fifth Circuit in Mitchell may affect other cases in that
circuit. One can only guess that plaintiffs' counsel is rolling the
dice on a decision on class certification by the Sixth Circuit in
Hicks over the Fifth Circuit in Mitchell, in packing Mississippi
insureds in the Tennessee cases. In any event, a decision from the
Fifth Circuit will likely come first, as briefing in Hicks hasn't
begun.
Meanwhile, the Sixth Circuit is also reviewing district court
decisions holding that Ohio law permits deduction of labor
depreciation in Perry v. Allstate Indem. Co. and Cranfield v. State
Farm Fire and Cas. Co., 340 F.Supp.3d 670 (N.D. Ohio 2018); 2018 WL
6169311 (N.D. Ohio Nov. 26, 2018). Those appeals are fully briefed,
and the court has recently ordered that oral argument is
unnecessary in one. Nos. 18-4267, 19-3004. Separately, the district
court in Schulte v. Liberty Insurance Corp., Case no. 3:19-cv00026
(S.D. Ohio), refused to certify the question to the Ohio Supreme
Court, and no appeal was filed from the state court decision in
Parker v. American Family Insurance Co., allowing labor
depreciation in Ohio. For now, it looks like this question of Ohio
law will be settled by the Sixth Circuit.
Update on Vehicle Tax, Tag and Title Class Actions
Class actions for total loss taxes and title and registration fees
keep rumbling along. In Coleman v. United Services Automobile
Ass'n, the court dismissed without prejudice breach of contract
claims for payment of sales tax and transfer fees under total loss
claims. Because the policy defined actual cash value as the costs
to buy a comparable vehicle, not necessarily replacement costs, ACV
was limited to the purchase price of a replacement vehicle and not
incidental costs. 2019 WL 3554184, Case no. 1:19-cv01745 (N.D. Ill.
July 31, 2019). The federal district court in another case granted
the insurer's motion to compel appraisal and dismissed the
complaint. McGowan v. First Acceptance Ins. Co., Case no.
8:19-cv-01101 (M.D. Fla. Aug. 14, 2019). The court held that
plaintiff's claims only raised a question of the amount of loss,
not coverage, so that appraisal was required by the policy.
Plaintiffs have appealed that decision to the Eleventh Circuit.
This strategy, of seeking simultaneous dismissal and compelling
appraisal, was implemented before in cases reported the past two
quarters (April and July 2019). Adding to all of the pending cases,
another class action has been filed asserting claims for payment of
tag and title fees. Wilkerson v. American Family Mutual Insurance
Co. was filed Oct. 17 in the Northern District of Ohio, Eastern
Division. Case no. 1:19-cv02425-CAB. It appears that the tag and
title class actions have a number of miles yet to travel.
Diminished Value Class Action Fails
Class actions based on some theory of diminution of value of autos,
which were hot more than 10 years ago, have occasionally
resurfaced. In Martins v. Vermont Mutual Ins. Co., the court held
that the policy did not provide coverage of inherent diminution in
value for first-party claims. The court followed the rationale of a
Massachusetts Supreme Court decision finding that Massachusetts law
does not require payment of third-party diminished value claims.
2019 WL 3818293, Case no. 1:17-cv-12360 (D. Mass. Aug. 14, 2019).
Third Circuit Recharges Rental Car Class Action
A few months ago, the Third Circuit Court of Appeals reversed
summary judgment for an insurer in a class action over rental car
expenses. Stechert v. The Travelers Home and Marine Ins. Co., 2019
WL 3526449 (Aug. 2, 2019). The policy provided for rental coverage
of up to 30 days unless the insurer determined that replacement
transportation could be obtained sooner. The adjustor, in limiting
rental coverage to a series of five-day periods pursuant to
internal practice, did not make any finding that replacement
transportation could have been obtained. The plaintiffs "felt
compelled" to lease another car that was a lemon because they were
led to believe rental coverage was ending. The court found summary
judgment inappropriate because of inconsistencies between the
policy and internal documents and conduct of the insurer, even
though the plaintiffs received the full 30 days of benefits. This
curious outcome, where the plaintiffs seemingly received everything
their policy provided, also revived the plaintiffs' bad faith
claim.
Florida PIP Class Certification Reversed
In another court of appeals decision, the Eleventh Circuit reversed
certification of an injunction class under Rule 23(b)(2) over
Florida PIP claims handling processes. In AA Suncoast Chiropractic
Clinic P.A. v. Progressive American Ins. Co., the plaintiffs are
providers who received assignments of insureds' PIP claims. 2019 WL
4316088 (11th Cir. Sept. 12, 2019). PIP benefits are capped at
$2,500, unless there's an emergency medical condition, in which
case $10,000 in benefits is available. The district court refused
to certify a damages class because of the individual assessments
necessary to prove liability and damages. However, the lower court
certified an injunction class based on requested declaratory relief
that the insurer's reliance on non-treating physicians to determine
whether an emergency condition existed was unlawful. The court of
appeals found that the relief sought by the certified class "is not
an injunction at all," and the declaratory request was minimal and
disconnected from class members. The injunction would mandate that
claims be reprocessed based on outside determinations, a ruse for
damages under past claims that the district court already held
could not be certified. In short, the injunction did not operate to
prevent future harm, as the claims presented retrospective harm --
"an ongoing interest in getting paid for past claims that have been
rejected." Because the case was about damages, the only proper
mechanism for class certification was under Rule 23(b)(3), which
had already been rejected based on individualized issues in proof
of liability and damages. [GN]
[*] Privacy Class Actions Expected to Increase by 300% in 2020
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IANS reports that with the focus on data privacy growing across the
world, privacy class-action lawsuits will increase by 300 per cent
in 2020, warns a forecast by market research firm Forrester.
The coming year will be a bad year for third-party data and a good
year for marketers who take consumer privacy seriously, said the
"Predictions 2020" report.
"Consumers are deeply concerned with how their data is collected
and used. A barrage of news about data breaches, government
surveillance, and corporate misconduct has soured consumer
sentiment on current data practices," said the report.
"The backlash has begun, and more people are taking active measures
to protect their privacy," it added.
Curbing reliance on third-party data will help some marketers get
ahead of the curve next year.
"Big tech firms such as Apple and Mozilla are providing consumers
with new tools that shut out data collection. Anti-surveillance
startups will receive funding," said the report.
The report also predicts that organisations will shift 10 per cent
of their budget to influencer marketing.
In 2020, ransomware incidents will grow as attackers learn that
holding data hostage is a quick path to monetisation.
These attackers will target consumer devices (and consumers) to the
detriment of device manufacturers -- demanding ransom from the
manufacturer after notifying its affected customers that it's up to
the manufacturer to "fix this issue."
Attackers will use artificial intelligence (AI) and machine
learning to enhance existing attacks using the tremendous amounts
of data now available to them.
"AI technologies like natural language generation and video AI will
be used to generate fake audio and video designed to fool users; as
a result, deepfakes alone will cost businesses over a quarter of a
billion dollars," according to the predictions.[GN]
*********
S U B S C R I P T I O N I N F O R M A T I O N
Class Action Reporter is a daily newsletter, co-published by
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USA, and Beard Group, Inc., Washington, D.C., USA. Rousel Elaine T.
Fernandez, Joy A. Agravante, Psyche A. Castillon, Julie Anne L.
Toledo, Christopher G. Patalinghug, and Peter A. Chapman, Editors.
Copyright 2019. All rights reserved. ISSN 1525-2272.
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