/raid1/www/Hosts/bankrupt/CAR_Public/191219.mbx
C L A S S A C T I O N R E P O R T E R
Thursday, December 19, 2019, Vol. 21, No. 253
Headlines
ALAMEDA COUNTY, CA: Inmates Sue Over Alleged Forced Labor
ALAMEDA RESEARCH: Faces Class Action Over Market Manipulation
ALASKA: Sued for Denying Permanent Fund Dividend Payments
AMAG INC: Faces Class Action Over Makena Drug
AMAZON WEB: Faces Ragsdale Suit Over Collection of Biometric Data
APEX SYSTEMS: Court Grants Judgment on Pleadings in Ratcliffe Suit
BELLEVILLE BEHAVIORAL: Faces Class Action Over BIPA Violations
BETTER PRODUCE: Altamirano-Santiago Class May Proceed by Pseudonym
BKP INC: Colorado Dist. Ct. Denies Bid to Stay Miles FLSA Suit
BONOBOS INC: Calcano Files ADA Suit in S.D. New York
CACHET FINANCIAL: Faces Class Action Over Negligence
CALIBURN INT'L: Orobitg Seeks Wages, Bonuses for Laid-off Workers
CALIFORNIA: Home Care Workers Class Certified in Ray v. Los Angeles
CALIFORNIA: Sued for Failing to Implement Parole Reforms
CANADA: Law Firm Seeks Temporary Injunction from SVT
CAPITAL ONE: Fabian's Bid for Attys' Fees & Costs in Langer Denied
CATERPILLAR INC: Partial Summary Judgment in Kerns Partly Affirmed
CBL: LPF Group Funds $750MM Shareholder Class Action
CHARTER COMMUNICATIONS: Baird Fraud Suit Removed to C.D. Calif.
CLIENT SERVICES: Certification of Classes Sought in Voeks Suit
COLONIAL PARKING: Abraha's Class Cert. Bid Denied Without Prejudice
COOK COUNTY, IL: Alicea Moves to Certify Class of Arrestees
CREE INC: Young Seeks to Certify Class of LED Lightbulb Buyers
DASH LUBE: Court Narrows Claims in Moreno Suit
DO & CO: Round Seeks to Stop Illegal Collection of Biometric Data
EMERITUS CORP: Judge Tosses Part of Arbitration Agreement
EQUIFAX INC: Class Certification Denied in Data Breach Suit
FACEBOOK INC: Hacking Victims May Seek Independent Audits
FACEBOOK INC: May Have to Turn Over Cambridge Analytica Info
FACEBOOK INC: Must Explain Evidence Request in Cambridge Case
FACTOR75: Fischler Files ADA Suit in E.D. New York
FREEDOM SOLAR: Procedural Guidance for Settlement in Naiman Entered
GO NY TOURS: Must Face Bus Driver's FLSA Class Action
GOOD KITHCEN: Nisbett Files ADA Suit in New York
GULF OIL: Attorneys Discuss Supreme Court's Class Action Ruling
HALLIBURTON CO: Waived Right to Compel Arbitration, Suit Claims
HE CHENG RESTAURANT: Wang Seeks to Recover Unpaid Overtime Wages
INSY: Miller Wants Class Action Excluded from Liquidation Plan
INTER-CONTINENTAL HOTEL: Class Action Belongs in Federal Court
JUDICIAL CORRECTIONAL: Court Dismisses Fourth Amended Hamilton Suit
KEIS GEORGE: Jefferson Files FDCPA Suit in N.D. Ohio
KINDRED HEALTHCARE: Kirby Moves to Certify Class and 3 Subclasses
LOISAIDA ENTERPRISES: Fails to Pay Minimum & OT Wages, Perez Says
LVNV FUNDING: Arbitration Ruling in Maisano Suit Affirmed
MAURY COBB: Stevens Files FDCPA Suit in S.D. Ohio
MCKESSON CORP: Judge Denies Motion to Dismiss Class Action
MDL 2639: Dismissal of Class Actions Upheld
MENDOTA HEIGHTS, MN: Objections to Denial of Bid to Compel Tossed
MICROSOFT CORP: 9th Cir. Hears Arguments in Gender Bias Case
MIDLAND CREDIT: Certification of Classes Sought in Matke Suit
PLAINS MIDSTREAM: McCarthy Tetrault Attorneys Discuss Ruling
PRADA USA: Faces Morris TCPA Suit Over Unsolicited Text Messages
RENO, NV: Female Strippers File Class Action
RHODE ISLAND: Correa Seeks to Certify Class of R.I. Residents
RIPPLE: At Risk of Possible Enforcement Actions by Regulators
ROUNDY'S ILLINOIS: Haugen's Cond. Cert. Bid Partly Granted
ROYAL CARIBBEAN: Plaintiff Attorneys Get $3.1MM Under Settlement
SAMSUNG ELECTRONICS: DeFrank Files Suit in New Jersey
SAN FRANCISCO, CA: Discrimination Class Action Dismissal Reversed
SAO PAOLO: Class Action Seeks Injunction to Suspend Auction
SAVOYA LLC: Court Orders Supplemental Briefing in Alabsi Case
SKYLINE SECURITY: McMillan Sues Over Unsolicited Telephone Calls
SONIC DRIVE-IN: Small Seeks Minimum Wage Under FLSA for Servers
ST. GEORGE LOGISTICS: Faces Class Action Over BIPA Violation
STOVER DIAGNOSTICS: Jones Moves to Certify Phlebotomists Class
SUR LA TABLE: Gift Cards Not Accessible to Blind, Calcano Claims
TENNESSEE: Prisoners Suit v. Dept. of Correction Dismissed
TESARO INC: Court Dismisses Amended LSI Securities Fraud Suit
THIRD CENTURY: Rivera Seeks Overtime Pay for Maintenance Laborers
THOR MOTOR: Court Dismisses Hayes Labor Suit with Leave to Amend
TOYOTA: Faces Class Action Over Valve Spring Recall Repair
UNITED PARCEL: Sims Labor Class Suit Removed to N.D. California
UNITED STATES: Calhoun Files Suit in D. Columbia
UNIVERSITY OF CALIFORNIA: Riffel Suit Transferred to N.D. Calif.
VISKASE COMPANIES: Thomas Seeks Overtime Pay Under FLSA and AMWA
WAL-MART: Faces Class Action Over Great Value LED Light Bulbs
YUNJI INC: Faces Van Hoomissen Suit Over Decline in IPO Price
[*] Methods Used to Assess Personal Data Value for Class Suits
*********
ALAMEDA COUNTY, CA: Inmates Sue Over Alleged Forced Labor
---------------------------------------------------------
Courthouse News Service reported that eight inmates filed a federal
class action claiming Alameda County and Aramark Correctional
Services put them to involuntary servitude and force them to work
without pay.
A copy of the Complaint is available at:
https://is.gd/LZz4EG
ALAMEDA RESEARCH: Faces Class Action Over Market Manipulation
-------------------------------------------------------------
Cali Haan, writing for Crowdfund Insider, reports that a plaintiff
called "Bitcoin Manipulation Abatement LLC" has launched a
class-action suit against cryptocurrency derivatives exchange FTX,
partner firm Alameda Research and several associated individuals
alleging they are, "well known among cryptocurrency traders for
being principal manipulators of the Bitcoin spot and Bitcoin
derivatives markets."
According to the FTX website, FTX was incubated by Alameda
Research.
According to a court filing lodged November 4th in San Francisco:
"Plaintiff BMA . . . alleges that during the time period from about
November 20, 2017 and until present time . . . Defendants . . .
Bankman-Fried, Wang, Croghan, CWang, Wong and Ellison conspired . .
. and participated in a long-running enterprise…engaging in a
continuing pattern of racketeering activity involving, among other
unlawful acts, operating an unlicensed money transmitting business
. . . money laundering…wire fraud…interstate transportation of
stolen property . . . perpetrating a manipulative, fraudulent and
deceptive scheme to manipulate the prices of certain cryptocurrency
derivatives, including, without limitation, bitcoin future
contracts, bitcoin swaps, as well as the cash prices of
cryptocurrencies . . . "
"The sheer magnitude of Defendants' unlawful activity is truly
staggering," the suit alleges, and involved alleged fraudulent
activity on, "at least 35 derivatives exchanges, including, without
limitation, regulated commodity derivatives exchanges Chicago
Mercantile Exchange (CME) and Chicago Board Options Exchange
(CBOE)."
The suit also claims the accused generated, "illicit profits . . .
exceed(ing) $150,000,000, which were misappropriated from numerous
cryptocurrency traders."
The scheme came to a halt when Binance launched a Bitcoin
derivatives trading platform, where internal controls tripped up
the plan:
"Defendants . . . were caught red-handed when, at about 21:00 EDT
on September 15, 2019 . . . (when) Defendants, and each of them,
made two illicit unsuccessful attempts to manipulate prices of
bitcoin futures listed on Binance cryptrocurrency futures exchange.
One such attempt was perpetrated by dumping futures contracts for
about 255 bitcoins, valued at approximately $2,626,500, on to the
newly opened Binance's SAFU futures market, at market prices, in
two minute time interval, with the specific purpose to cause a
calculated artificial price move that would trigger cascading
execution of stop loss orders and liquidations of bitcoin futures
long positions on Binance and propagate to other exchanges
('liquidation cascade')."
The accused allegedly used carefully-timed trades to prey on new
derivatives exchanges because they were thinly-traded and could be
used to trigger intended 'cascades' across crypto markets:
"In furtherance of the alleged manipulative and deceptive scheme,
Defendants, and each of them, deliberately chose the newly opened
and thinly traded derivatives exchange and the time of the lowest
global bitcoin and bitcoin futures trading liquidity (21:00 EDT on
Sunday) to maximize the impact of their illicit and unlawful
manipulation attempt on the price of bitcoin futures.
The attempts on Binance were not successful, the suit claims:
"Both times, Defendants, and each of them, were caught by Binance's
market surveillance functionality and their manipulation attempts
were thwarted."
Alameda Research has responded to the news of the case in a blog
post titled, "Nuisance Suit."
In the post, the company calls Bitcoin Manipulation Abatement LLC a
"troll" says it has, "not been served."
"The nuisance suit is riddled with laughable inaccuracies,
including mistaking the entire business model of Alameda," the
company writes.
"The troll has no evidence of any wrongdoing, and will not further
discover any -- because there was no wrongdoing to discover
evidence of. Instead, he attempts to cite the analysis of
shitposted conspiracy theories on Twitter out of a desperate
attempt to construe some sort of suit," they continue.
Alameda Research further claims:
"It is an unfortunate reality that it is easy to file bullshit
lawsuits and annoying to fight them, and some assholes will use
this as an excuse to extort anyone they see as high profile…On
the bright side, at least we're now seen as successful enough to
distract trolls from their everyday operation."
Crypto lawyer Stephen D Palley tweeted that the case is
"interesting":
He also wrote, "The narrative would be nicer if the plaintiff were
something other than a purpose-built litigation vehicle (though
it's a manageable and not novel contrivance) . . .(and) should also
note that just because someone sues someone for a kajillion dollars
it doesn't mean that it'll survive a motion dismiss." [GN]
ALASKA: Sued for Denying Permanent Fund Dividend Payments
---------------------------------------------------------
Courthouse News Service reported that a federal class action claims
Alaska and its Governor Mike Dunleavy unconstitutionally deny
payments from the Permanent Fund Dividend to spouses of military
members in same-sex marriages.
A copy of the Complaint is available at:
https://is.gd/OYvAOS
AMAG INC: Faces Class Action Over Makena Drug
---------------------------------------------
Courthouse News Service reported that a woman filed a federal class
action against Amag Inc., claiming its high-priced drug Makena
(hydroxyprogesterone caproate) did not prevent pre-term birth, as
advertised, causing her baby to die shortly after birth.
A copy of the Complaint is available at:
https://is.gd/zOchfv
AMAZON WEB: Faces Ragsdale Suit Over Collection of Biometric Data
-----------------------------------------------------------------
MARTIN RAGSDALE, individually and on behalf of similarly situated
individuals, Plaintiff v. AMAZON WEB SERVICES, INC., a Delaware
corporation, Defendant, Case No. 2019CH13251 (Ill. Cir., Nov. 15,
2019), seeks statutory damages and other remedies as a result of
Defendant's conduct in violating the Plaintiff's biometric privacy
rights under Illinois Biometric Information Privacy Act.
The Defendant offers cloud storage services for businesses that
handle biometric identifiers and biometric information. Some of the
Defendant's customers are commercial businesses that require their
employees to provide their biometrics, e.g. fingerprints, to check
in and out of their shifts at work. In such a scenario, the
Defendant stores data and information that is generated as a result
of the capture, collection, and processing of biometric
identifiers.
The Plaintiff notes that BIPA not only regulates the conduct of
entities that capture and collect biometric identifiers, such as
many of the Defendant's commercial customers, but also of entities
that store data and information derived from those biometric
identifiers, like the Defendant. BIPA defines a "biometric
identifier" as any personal feature that is unique to an
individual, including fingerprints and hand geometry. "Biometric
information" is any information based on a biometric identifier,
regardless of how it is converted or stored.
BIPA provides, inter alia, that private entities, such as
Defendant, may not store an individual's biometric identifiers,
such as fingerprints and hand scans, or any biometric information,
including any data regardless of the manner from which it was
converted, or is converted or stored, unless they first: inform
that person in writing that biometric identifiers or biometric
information will be stored; inform that person in writing of the
specific purpose and the length of term for which such biometric
identifiers or biometric information is being stored; and receive a
written release from the person for the storage of their biometric
identifiers or biometric information.
Despite obtaining, storing, and possessing biometric information of
thousands of Illinois residents, including the Plaintiffs'
biometrics, on behalf of scores of its customers, the Defendant
failed to comply with BIPA, according to the complaint.
The Defendant is a leading cloud provider in the United States,
offering its customers the ability to store their data, access
their data remotely, and create back-up copies of their data. The
Defendant stores a myriad of types of data on behalf of a wide
range of customers spanning virtually every industry sector.[BN]
The Plaintiff is represented by:
Jad Sheikali, Esq.
Andrew T. Heldut, Esq.
MCGUIRE LAW, P.C.
55 W. Wacker Drive, 9th Fl.
Chicago, IL 60601
Telephone: (312) 893-7002
E-mail: jsheikali@mcgpc.com
aheldut@mcgpc.com
APEX SYSTEMS: Court Grants Judgment on Pleadings in Ratcliffe Suit
------------------------------------------------------------------
In the case, BERNICE RATCLIFFE, individually and on behalf of other
members of the general public similarly situated, Plaintiff, v.
APEX SYSTEMS, LLC., a Virginia limited liability company; and DOES
1 through 100, inclusive, Defendants, Case No.
3:19-cv-01688-WQH-MDD (S.D. Cal.), Judge William Q. Hayes of the
U.S. District Court for the Southern District of California granted
without prejudice Defendant Apex's Motion for Judgment on the
Pleadings.
On Aug. 5, 2019, the Plaintiff commenced the action by filing a
Complaint in the Superior Court of California for the County of San
Diego, assigned case number 37-2019-00040686-CU-OE-CTL, against
Defendant Apex. On Aug. 30, 2019, the Defendant filed an Answer in
the Superior Court of California for the County of San Diego.
On Sept. 4, 2019, the Defendant removed the action to the Court,
contending that the Court has original jurisdiction pursuant to 28
U.S.C. Section 1332(d)(2) (the Class Action Fairness Act of 2005)
and diversity jurisdiction pursuant to 28 U.S.C. Section 1332(a).
The Plaintiff alleges that the Defendant employed her in California
as an hourly-wage employee from May of 2017 to August of 2018. She
alleges the following causes of action against the Defendant: (1)
failure to pay overtime wages; (2) failure to pay for work
performed during meal periods; (3) failure to pay for work
performed during rest periods; (4) failure to pay at least minimum
wages for all hours worked; (5) failure to pay wages owed at the
time of discharge or resignation; (6) failure to provide accurate
itemized wage statements; and (7) failure to reimburse business
expenses. In addition, the Plaintiff alleges an eighth claim for
engaging in unlawful and unfair business practices.
The Plaintiff seeks an Order certifying the Class; general and
special damages; actual, consequential, and incidental damages;
liquidated damages; punitive damages; civil penalties; statutory
penalties; prejudgment interest; attorneys' fees; injunctive
relief; and the appointment of a receiver to receive, manage, and
distribute funds disgorged from the Defendants.
On Sept. 17, 2019, the Defendant filed the Motion for Judgment on
the Pleadings. On Oct. 7, 2019, the Plaintiff filed a Response in
Opposition.
The Defendant contends that the Plaintiff's conclusory allegations
provide no substantive facts to show that its conduct allegedly led
to unpaid overtime and unpaid minimum wages. It contends that the
Plaintiff fails to allege facts to support conclusory allegations
regarding meal and rest period violations. The Defendant contends
that the Plaintiff fails to allege facts that would give rise to a
plausible business expense reimbursement claim. It contends that
the Plaintiff's claims regarding wages owed at the time of
discharge or resignation, accurate itemized wage statements, and
unfair business practices fail to meet the plausibility pleading
standard because each claim derives from other factually deficient
allegations. The Defendant contends that the Plaintiff's prayer
for punitive damages fails as a matter of law because punitive
damages are not recoverable for California Labor Code violations.
The Plaintiff contends that the Complaint pleads sufficient facts
to state claims for unpaid minimum wages and unpaid overtime. She
contends that the Complaint adequately pleads claims for meal and
rest period violations. She contends that the Complaint
sufficiently pleads a cause of action for unreimbursed business
expenses. The Plaintiff contends that the Complaint adequately
pleads claims for wages owed at the time of discharge or
resignation, inaccurate wage statements, and unfair competition.
The Plaintiff requests leave to amend the Complaint should the
Court be inclined to grant the Defendant's Motion.
First, Judge Hayes finds that the conclusory allegation that the
Plaintiff worked overtime is not sufficient to plausibly support a
claim for unpaid overtime wages. The Plaintiff fails to allege at
least one workweek when she worked in excess of 40 hours and was
not paid for the excess hours in that workweek, or was not paid
minimum wages.
Second, the Judge holds that the Plaintiff's unpaid meal and rest
period claims are unsupported by allegations of fact. The
Plaintiff fails to allege facts regarding "when, how, and which
individuals were denied meal and rest periods" that would plausibly
indicate the Defendant's liability. She fails to identify any
specific instance in which she was not provided with a meal break
she was due. The Plaintiff fails to identify the manner in which
she was denied a meal break. Her unpaid meal and rest period
allegations are insufficient.
Third, the Judge finds that the Plaintiff's Complaint does not
provide any supporting factual allegations. Her conclusory
allegations merely repeat the language of the applicable statutory
provisions. The Judge concludes that the Plaintiff's allegation
regarding unpaid wages owed at discharge or resignation is
insufficient.
Fourth, the Judge concludes that the Plaintiff's allegations
regarding inaccurate wage statements are insufficient. Although
her allegations mention the failure to include the total number of
hours worked and a general allegation that she and the other class
members 'suffered injury and damage,' that is insufficient -- a
cognizable injury must be alleged.
Fifth, the Judge holds that the Plaintiff fails to allege a
specific cost incurred that was not fully reimbursed by the
Defendant. The Plaintiff's conclusory allegations again merely
mirror the language of the statute without any supporting factual
allegations. The Judge concludes that the Plaintiff's allegation
regarding unreimbursed business expenses is insufficient.
Finally, the Plaintiff's claim for unfair business practices fails
because the Plaintiff has not adequately pled any of the preceding
causes of action. The Complaint fails to allege facts regarding
the Defendant's unfair business practices and contains only
conclusory allegations. The Plaintiff's eighth cause of action
must be dismissed.
Based on the foregoing, Hayes granted without prejudice the Motion
for Judgment on the Pleadings. Any motion to file an amended
complaint will be filed within 21 days from the date of service of
the Order.
A full-text copy of the Court's Nov. 13, 2019 Order is available at
https://is.gd/2mxwjF from Leagle.com.
Bernice Ratcliffe, individually, and on behalf of other members of
the general public similarly situated, Plaintiff, represented by
Douglas Han -- dhan@justicelawcorp.com -- Justice Law Corporation,
Shunt Tatavos-Gharajeh -- statavos@justicelawcorp.com -- Justice
Law Corporation, Kenneth H. Yoon, Law Offices of Kenneth H. Yoon &
Stephanie Emi Yasuda -- syasuda@yoonlaw.com -- Law Offices of
Kenneth H. Yoon.
Apex Systems, LLC, a Virginia limited liability company, Defendant,
represented by Lauren Elizabeth Grochow --
lauren.grochow@troutman.com -- Troutman Sanders & Mark J. Payne --
mark.payne@troutman.com -- Troutman Sanders.
BELLEVILLE BEHAVIORAL: Faces Class Action Over BIPA Violations
--------------------------------------------------------------
John Breslin, writing for Madison - St. Clair Record, reports that
a former employee of a southern Illinois long term care company is
claiming her one time employer violated provisions of a biometric
data privacy act.
Altamese Young, who worked at Belleville Behavioral Health and
Nursing Center for five months this year, wants her case under the
Biometric Information Privacy Act (BIPA) certified as a class
action on behalf of an estimated 75 employees of the company.
The suit, filed Oct. 23 in St. Clair County Circuit Court, also
names the center's parent company, Integrity Healthcare Communities
as a defendant. The company would not comment on the complaint to
the Record.
Young, a PRN, or short term health care employee of the company,
states in the complaint that her hand was scanned when the started
and finished work, and when in and out on lunch breaks.
"By requiring employees to scan their hands to record their time,
instead of identification numbers or badges only, defendants
ensured that one employee could not clock in for another," the
complaint states. "Thus, there's no question that Defendants
benefited from using a biometric time clock."
It is argued in the complaint that the use of biometrics places
employees at risk because it is a "unique and permanent"
identifier.
Illinois, recognizing those risks, including the potential for
identify theft, enacted BIPA to restrict the collection, storage,
use, or transfer of the data.
It is alleged the defendants violated BIPA by failing to provide
the plaintiff with any written documents stating they were
"collecting, retaining, or disseminating her hand geometry scan."
The defendants did not obtain Young's written consent, it is
claimed, with the suit alleging violations under various provisions
of BIPA.
The plaintiff is requesting damages to the plaintiff and the class
for each alleged violation, and an order barring the company from
any further BIPA violations.
Young is represented by Douglas M. Werman, Maureen A. Salas,
Zachary C. Flowerree, Sarah J. Arendt, and Jacqueline H.
Villanueva, of Werman Salas of Chicago.
St. Clair County Circuit Court case number 2019-L-742. [GN]
BETTER PRODUCE: Altamirano-Santiago Class May Proceed by Pseudonym
------------------------------------------------------------------
In the case MANUEL DE JESUS ALTAMIRANO-SANTIAGO, LUCIO
MENDOZA-CASTRO, FREDI SAUL CANSECO-VASQUEZ, and others similarly
situated Plaintiffs, v. BETTER PRODUCE, INC., RANCHO DEL MAR, INC.,
C.J.J. FARMING, INC., and JUAN CISNEROS, Defendants, Case No.
19-cv-3964 DDP (FFMx) (C.D. Cal.), Judge Dean D. Pregerson of the
U.S. District Court for the Central District of California granted
the Named Plaintiffs' Motion for Leave to File Under Seal and
Proceed by Pseudonym.
The Plaintiffs are agricultural workers imported from Mexico by the
Defendants to work in their strawberry fields. The Defendants are
Rancho del Mar, Better Produce, Inc., C.J.J. Farming, Inc., all
California corporations with their principal place of business in
Santa Maria, California, and Juan Cisneros, CEO of all the
Corporate Defendants.
The Plaintiffs were recruited from Oaxaca to work for the
Defendants under the "H-2A program." Under the H-2A program, an
agricultural employer may import workers to work in agriculture on
a temporary basis. The Plaintiffs completed visa paperwork with an
individual from the office of Defendant Better Produce.
The Plaintiffs allege that they were required to obtain a passport
at their own expense without reimbursement from the Defendants.
Further, they allege that they were instructed to travel from
Oaxaca to the U.S. Consulate and were required to pay the cost of
travel, hotel expenses, the fee to cross the U.S.-Mexican border,
and the subsistence costs on the travel from the border to Santa
Maria, California. These costs were necessary to the Plaintiffs
and the others similarly situated and were not reimbursed by the
Defendants.
Additionally, the Plaintiffs allege that each season, a supervisor
for the Defendants collected fees from each the Plaintiff and the
others similarly situated in the amount of $675 U.S. Dollars. The
supervisor indicated that the fee was meant to cover some of the
Defendants' expenses in recruiting foreign workers. The Plaintiffs
also allege that their return travel expenses were the Defendants'
contractual obligation, but the Plaintiffs "arranged their own
travel," and paid their own expenses to return to their homes in
Oaxaca. The Plaintiffs further allege that the Defendants did not
compensate their travel and wait time to go to work, and they did
not always receive a timely meal period, a 30-minute meal period,
or required rest breaks.
Based on these allegations, the Plaintiffs bring the action
claiming violations of the Fair Labor Standards Act ("FLSA"),
violations of California's Labor Code, violation of California's
Unfair Competition Law, and breach of contract. On July 30, 2019,
the Court granted conditional certification of the FLSA action and
approved the proposed FLSA notice to putative opt-in members.
The Plaintiffs now move for leave to file under seal and proceed by
pseudonym. Specifically, they request to (1) amend their complaint
to add one new named Plaintiff by pseudonym; (2) file future
Opt-ins under seal; (3) order the Defendants' counsel not to share
the names of Opt-ins with their client or reveal the names or
identifying information in any way to their clients; (4) order an
additional notice informing putative opt-ins that they may join the
suit with their names filed under seal, and (5) allow any
withdrawals to be filed under seal.
The Plaintiffs seek to protect a fourth named Plaintiff, and the
putative class, from the Defendants' coercive conduct and
communications. They argue that the Defendants have engaged in
conduct, such as sending a supervisor to the putative class
members' homes in Mexico and organizing meetings for current
workers in the United States, and have made threats to the putative
class members such that the putative class members fear
retaliation, if they do not affirmatively opt-out of the action.
Specifically, during oral argument, the Plaintiffs represented, and
the Defendants did not dispute, that the Defendants have collected
and produced to the Plaintiffs' counsel, more than 30 pre-printed
forms and over 70 handwritten notes -- over 100 statements -- from
the putative class members purporting to affirmatively opt-out.
The Plaintiffs contend that the opt-outs are the product of
putative members' fear of economic and physical retaliation.
The Defendants on the other hand, declare that they have not made
any threats, attempts to coerce, retaliated, nor entered into any
settlements or agreements to settle claims raised in these
proceedings. They instead declare that several current and former
workers employed by them have voluntarily provided statements
indicating their desire or intention to not be involved in these
proceedings.
Judge Pregerson finds that the need for anonymity and protection
from coercive conduct is evident from the number of opt-out forms,
and the language contained therein, that the Defendants have
collected at this early stage of the litigation. While the Court
recognizes that the Plaintiffs have not presented a clear picture
of the threats Defendants have made, the Judge also concludes that
the Defendants have not provided a credible explanation for the
volume of "voluntary" opt-out forms they've collected at this early
stage of the proceedings. Moreover, the opt-outs contain language
that indicates a fear of retaliation, specifically, a loss of
employment.
The Judge also concludes that the Plaintiffs' and the putative
class face reasonable fears of economic retaliation because of
their vulnerable status. The Plaintiffs and the putative class
members are low-wage, temporary guest workers from Mexico, who are
unable to enter the United States and work unless the Defendants
submit H-2A petitions for them. Moreover, the Defendants have the
Plaintiffs' contact information, including their home addresses in
Mexico, and the Defendants can, and have in the past, visited the
Plaintiffs' homes in Mexico.
The Plaintiffs' request the Court to permit one of the four Named
Plaintiffs to proceed anonymously and the Plaintiffs do not seek to
prevent the Defendants' counsel from knowing the true name of the
fourth Named Plaintiff. They only seek to prevent the counsels'
clients from having knowledge, at this early stage, of the fourth
Named Plaintiff's name and of future opt-ins and future opt-outs.
Because the Plaintiffs seek limited remedial action, the Judge
holds that the Defendants will not be prejudiced at this early
stage. He further concludes that litigating the case on the merits
is in the public's interest; the Plaintiffs seek to enforce
important statutory rights that benefit the general public. The
Defendants may request relief from the Court, as necessary, at each
stage of the proceeding to ensure that they are not prejudiced.
Finally, recognizing the serious allegations in the case, the
vulnerability of the putative class members, and the number of
opt-outs collected unilaterally by the Defendant, the Judge
concludes that curative notice in the putative class and FLSA
action is necessary.
For the reasons he stated, Jude Pregerson granted the Plaintiffs'
motion for leave to amend the complaint to proceed by pseudonym.
The Plaintiffs may file future opt-ins and opt-outs under seal.
Additional notice to putative opt-ins informing them that they may
join the suit with their names to be filed under seal is granted.
The parties will meet and confer and file a joint supplemental
notice to putative opt-ins, for the Court's approval, within 14
days from the date of the Order. The Defendants' counsel will not
reveal the names of opt-ins or opt-outs to their client. Failure
to abide by the Court's orders may result in sanctions.
A full-text copy of the Court's Nov. 13, 2019 Order is available at
https://is.gd/Uo1gV9 from Leagle.com.
Manuel de Jesus Altamirano-Santiago, and others similarly
situated,
Lucio Mendoza-Castro, and others similarly situated & Fredi Saul
Canseco-Vasquez, and others similarly situated, Plaintiffs,
represented by Dawson McKinnon Morton --
dawson@lawofficesofsantosgomez.com -- Law Offices of Santos Gomez
&
Santos Gomez -- santos@lawofficesofsantosgomez.com -- Law Offices
of Santos Gomez.
Better Produce, Inc., Rancho del Mar, Inc., C.J.J. Farming, Inc. &
Juan Cisneros, Defendants, represented by Vincent Thomas Martinez,
Twitchell and Rice LLP.
BKP INC: Colorado Dist. Ct. Denies Bid to Stay Miles FLSA Suit
--------------------------------------------------------------
In the case, LISA MILES a/k/a Elisa Marie Miles, and those
similarly situated, Plaintiff/Counter Defendant, v. BKP INC., ELLA
BLISS BEAUTY BAR LLC, ELLA BLISS BEAUTY BAR - 2, LLC, ELLA BLISS
BEAUTY BAR - 3, LLC, BROOKE VANHAVERMAAT, KELLY HUELSING, and PETER
KOCLANES, Defendants/Counter Claimants, Civil Action No.
18-cv-01212-PAB-MEH (D. Colo.), Judge Philip A. Brimmer of the U.S.
District Court for the District of Colorado denied the Plaintiff's
Motion to Stay Litigation Pending Decisions on Dispositive Motions
in State Court Proceeding Brought by Defendants Against Plaintiff's
Counsel.
On May 17, 2018, Plaintiff Miles filed a class and collective
action against the Defendants alleging that the Defendants failed
to pay their employees for certain hours worked, such as time spent
cleaning the facilities and time spent working overtime. That same
day, the Plaintiff's counsel held a press conference outside an
Ella Bliss Beauty Bar location to discuss the lawsuit. On May 17,
2019, the Defendants sued the Plaintiff's counsel in the District
Court for the City and County of Denver, raising claims of
defamation and intentional interference with contractual relations
based on statements made during the press conference. The
Plaintiff's counsel filed two motions to dismiss and one motion for
summary judgment in the state court case.
The Plaintiff argues that a stay is warranted under the String
Cheese Incident factors because (1) there is a strong public
interest in deterring frivolous lawsuits against opposing counsel;
(2) both parties would benefit from assurance that their actions
taken in discovery in the case do not affect the collateral claims;
(3) a stay would promote judicial efficiency because the state
court motions could effectively adjudicate some issues in the case;
(4) a stay would not prejudice interested, putative-class-member
non-parties because their claims were tolled by the Plaintiff's
class action complaint.
Judge Brimmer finds that a stay is not warranted. He is not
convinced by the Plaintiff's arguments.
First, he finds that the Plaintiff has not explained why the
counsel may be forced to withdraw if, as she claims, the state
court litigation is tactical and frivolous, and has not explained
how the state court proceedings would "hobble" the class action.
The Plaintiff has therefore failed to show that issuing a stay of
the proceedings in the case would benefit the public interest.
Instead, the public has an interest in the speedy resolution of
legal disputes. The case has been pending for eighteen months and
is still within the discovery stage. A stay would work only to
further delay the completion of discovery, the progression of the
case, and the eventual resolution of this dispute. The Judge finds
that the public interest factor weighs against a stay.
Second, the Judge will not consider the merits of the parties'
purported discovery dispute, as the proper method for addressing
such dispute is through a request for a discovery conference with
the magistrate judge. Further, the Plaintiff's speculation that
the Defendants' discovery objection "may" be rooted in an ulterior
motive does not support a finding that the parties' interest in
conducting complete discovery would benefit from a stay. Moreover,
the Plaintiff's argument goes exclusively toward her own interests,
not the Defendants' interests. The Judge agrees that a speedy
resolution would benefit all involved.
Third, the Judge holds that while it is possible that resolution of
the state court action in the Plaintiff's counsel's favor could
create collateral estoppel effects in the instant case, he agrees
with the Defendants that the argument is necessarily speculative in
predicting how the state court will rule.
Finally, the Judge holds that the Plaintiff has failed to
demonstrate that a stay would benefit non-party interests. The
Plaintiff merely argues that the putative class members would not
be prejudiced by a delay. She does not explain why these
individuals' interests would actually benefit from a stay.
In sum, Judge Brimmer finds that, under the String Cheese Incident
factors, the case does not provide such "extreme circumstances" so
as to justify a stay. Accordingly, he denied the Plaintiff's
Motion to Stay Litigation Pending Decisions on Dispositive Motions
in State Court Proceeding Brought by Defendants Against Plaintiff's
Counsel.
A full-text copy of the Court's Nov. 13, 2019 Order is available at
https://is.gd/DKhk6k from Leagle.com.
Lisa Miles, and those similarly situated also known as Elisa Marie
Miles, Plaintiff, represented by Alexander Neville Hood --
alex@towardsjustice.org -- Towards Justice, David Hollis Seligman
-- david@towardsjustice.org -- Towards Justice, Liana Gerstle
Orshan -- lorshan@kln-law.com -- Killmer Lane & Newman, LLP, Tania
N. Valdez, Killmer Lane & Newman, LLP & Mari Anne Newman --
mnewman@kln-law.com -- Killmer Lane & Newman, LLP.
BKP Inc., Ella Bliss Beauty Bar LLC, Ella Bliss Beauty Bar 2, LLC,
Ella Bliss Beauty Bar 3, LLC, Brooke Vanhavermaat, Kelly Huelsing &
Peter Koclanes, Defendants, represented by Brooke A. Colaizzi --
bcolaizzi@shermanhoward.com -- Sherman & Howard, L.L.C., Heather
Fox Vickles -- hvickles@shermanhoward.com -- Sherman & Howard,
L.L.C. & Raymond Myles Deeny -- deeny@shermanhoward.com -- Sherman
& Howard, L.L.C.
Ella Bliss Beauty Bar 3, LLC, BKP Inc., Brooke Vanhavermaat, Peter
Koclanes, Kelly Huelsing, Ella Bliss Beauty Bar LLC & Ella Bliss
Beauty Bar 2, LLC, Counter Claimants, represented by Brooke A.
Colaizzi,Sherman & Howard, L.L.C., Heather Fox Vickles,Sherman &
Howard, L.L.C. & Raymond Myles Deeny,Sherman & Howard, L.L.C.
Lisa Miles, and those similarly situated, Counter Defendant,
represented by Alexander Neville Hood,Towards Justice, David Hollis
Seligman,Towards Justice, Liana Gerstle Orshan,Killmer Lane &
Newman, LLP, Tania N. Valdez,Killmer Lane & Newman, LLP & Mari Anne
Newman,Killmer Lane & Newman, LLP.
Ella Bliss Beauty Bar 3, LLC, BKP Inc., Peter Koclanes, Kelly
Huelsing, Ella Bliss Beauty Bar LLC, Ella Bliss Beauty Bar 2, LLC &
Brooke Vanhavermaat, Counter Defendants, represented by Brooke A.
Colaizzi, Sherman & Howard, L.L.C., Heather Fox Vickles,Sherman &
Howard, L.L.C. & Raymond Myles Deeny,Sherman & Howard, L.L.C.
BONOBOS INC: Calcano Files ADA Suit in S.D. New York
----------------------------------------------------
A class action lawsuit has been filed against Bonobos, Inc. The
case is styled as Evelina Calcano, on behalf of herself and all
other persons similarly situated, Plaintiff v. Bonobos, Inc.,
Defendant, Case No. 1:19-cv-11476 (S.D.N.Y., Dec. 16, 2019).
The Plaintiff filed the case under the Americans with Disabilities
Act.
Bonobos is an e-commerce-driven apparel subsidiary of Walmart
headquartered in New York City that designs and sells men's
clothing.[BN]
The Plaintiff is represented by:
Darryn G Solotoff, Esq.
Law Office of Darryn G Solotoff PLLC
100 Quentin Roosevelt Boulevard, Ste 280
Garden City, NY 11530
Phone: (516) 317-2453
Fax: (516) 706-4692
Email: ds@lawsolo.net
CACHET FINANCIAL: Faces Class Action Over Negligence
----------------------------------------------------
Courthouse News Service reported that Web Payroll Service claims in
a federal class action that the negligence of Cachet Financial
Services and Financial Business Group Holdings allowed a payroll
processor to abscond with $26 million from automated clearing house
accounts.
A copy of the Complaint is available at:
https://is.gd/2fjMBs
CALIBURN INT'L: Orobitg Seeks Wages, Bonuses for Laid-off Workers
-----------------------------------------------------------------
Sisy Orobitg, individually, and on behalf of others similarly
situated, Plaintiff v. Caliburn International, LLC, and
Comprehensive Health Services, LLC, Defendants, Case No.
1:19-cv-24748-BB (S.D. Fla., Nov. 15, 2019), arises from the
Defendants' violations of the Fair Labor Standards Act and the
Workers Adjustment and Retraining Notification Act of 1988.
The Defendants utilized a system called Easy Clocking, which
reflects hourly-paid employees' clock-in and clock-out times. The
Defendants utilized another timekeeping system called Deltek, which
reflects the time for which hourly-paid employees will be
compensated.
Easy Clocking time is transferred into Deltek and approved by the
Defendants' management before it is paid. The Defendants maintained
a common policy of prohibiting hourly-paid employees from being
"clocked in" before and after their scheduled shifts, and/or during
their meal breaks, regardless of whether they were working during
such times, the Plaintiff says.
As a result, the Plaintiff alleges, hourly-paid employees regularly
worked "off the clock" before and after their scheduled shifts,
and/or during their meal breaks, and were not paid for such work.
The Plaintiff adds that when hourly-paid employees clocked in
before and after their scheduled shifts, and/or during their meal
breaks, their time records would be altered to reflect 40 hours
before being approved in Deltek.
In many weeks, the work hourly-paid employees performed before and
after their scheduled shifts and/or during their meal breaks
occurred in excess of forty (40) hours in a workweek, and thus
should have been compensated at time-and-a-half of their regular
rates of pay, but were not, according to the complaint. The
Defendants knew that hourly-paid employees were working before and
after their scheduled shifts, and/or during their meal breaks, but
failed to compensate them for such time.
In August 2019, the Defendants laid off over 2,000 full-time
employees at its Homestead, Florida shelter. From October 29, 2019,
to November 1, 2019, the Defendants laid off another approximately
2,000 full-time employees at its Homestead, Florida shelter,
including the Plaintiff, in anticipation of closing the shelter on
November 30, 2019, due to the federal government not renewing its
contract with the Defendants. The employees the Defendants laid off
over in October 29, amounted to nearly all of the shelter's
remaining full-time employees.
The Plaintiff contends that the laid-off employees were entitled to
receive 60 days advance written notice from the Defendants under
the WARN Act. The Defendants failed to give the employees notice at
least 60 days prior laying them off, in violation of the WARN Act.
The Defendants failed to pay the Plaintiff and the other laid-off
employees their respective wages, salary, commissions, bonuses,
accrued holiday pay vacation which would have accrued for 60 days
following their respective layoffs without notice and failed to
make 401(k) contributions and provide them with health insurance
coverage and other employee benefits, the lawsuit says. The
Defendants jointly employed the Plaintiff and other members of the
FLSA Collective and classified them as hourly-paid, non-exempt
employees, and have not guaranteed them any minimum weekly
salaries.
The Defendants operate Homestead Temporary Shelter for
Unaccompanied Children located in Homestead, Florida, which is the
largest and only for-profit shelter for unaccompanied migrant
children in the United States.
Caliburn International is a professional services provider for the
U.S. government and commercial clients worldwide. Comprehensive
Health Services, LLC is a for-profit medical management services
provider that contracts with the United States federal government.
It is a wholly owned subsidiary of Caliburn International,
LLC.[BN]
The Plaintiff is represented by:
Jay P. Lechner, Esq.
WHITTEL & MELTON, LLC
11020 Northcliffe Blvd.
Spring Hill, FL 34608
Telephone: 352-683-2016
Facsimile: 352-556-4839
E-mail: lechnerj@theFLlawfirm.com
pleadings@theFLlawfirm.com
bonnie@theFLlawfirm.com
pls@theFLlawfirm.com
- and -
Jason T. Brown, Esq.
Nicholas Conlon, Esq.
Lotus Cannon, Esq.
BROWN, LLC
111 Town Square Place, Suite 400
Jersey City, NJ 07310
Telephone: (877) 561-0000
Facsimile: (855) 582-5297
E-mail: jtb@jtblawgroup.com
nicholasconlon@jtblawgroup.com
lotus.cannon@jtblawgroup.com
CALIFORNIA: Home Care Workers Class Certified in Ray v. Los Angeles
-------------------------------------------------------------------
The Honorable Percy Anderson issued an order in the lawsuit styled
Trina Ray, et al. v. California Dep't of Soc. Servs., et al., Case
No. 2:17-cv-04239-PA-SK (C.D. Cal.), granting Trina Ray's Motion
for Conditional Certification, and approves her proposed notice
period and method of notice, with the exceptions that:
(1) the County of Los Angeles shall not disclose potential
collective plaintiffs' social security numbers; and
(2) the County has 60 days from the date of this Order to
produce the notice information to the Plaintiffs.
The class is defined as:
All people employed by the County as home care workers, home
care providers, or in other similar job titles, through the
In-Home Supportive Services program and in the County of Los
Angeles, who were paid for hours in excess of forty (40) per
week at a rate of less than 1.5 times their regular rate at
any time from January 1, 2015 to February 1, 2016.
On June 7, 2017, Plaintiff Trina Ray filed a Fair Labor Standards
Act ("FLSA") collective action against the California Department of
Social Services ("CDSS") and the County of Los Angeles for unpaid
overtime wages from January 1, 2015, to January 31, 2016. She
filed this collective action on behalf of herself and a putative
collective of In-Home Supportive Services ("IHSS") providers. On
July 21, 2017, she filed a First Amended Complaint, in which she
dropped CDSS as a defendant and added Sasha Walker as a plaintiff.
In addition, the Court grants the Plaintiffs' Motion for Equitable
Tolling, and tolls the statute of limitations from September 28,
2017, until the date of this Order, which is December 11, 2019.
The County is ordered to file an Answer within 21 days of this
Order, and the Clerk is ordered to issue an Order Setting
Scheduling Conference.
Finally, the Plaintiffs are ordered to file all Notices of Consent
at once with the Court at the end of the 60-day notice period. The
Court does not want a Notice of Consent filed individually by each
opt-in plaintiff.
The parties are ordered to meet and confer no later than Dec. 23,
2019, as to the best way for the Plaintiffs to notify the County of
additional opt-in plaintiffs.[CC]
CALIFORNIA: Sued for Failing to Implement Parole Reforms
--------------------------------------------------------
Courthouse News Service reported that a federal class action filed
on Nov. 27 claims that California has failed to carry out a package
of reforms passed in 2017 that utilized parole consideration for
those convicted of nonviolent crimes.
A copy of the Complaint is available at:
https://is.gd/aDDS0M
CANADA: Law Firm Seeks Temporary Injunction from SVT
----------------------------------------------------
Travis Paterson, writing for Victoria News, reports that a lower
Mainland law firm has submitted a second class petition to the
Supreme Court of B.C. seeking a temporary injunction from the
speculation and vacancy tax (SVT).
The new petition, from Lawrence Wong and Associates in Vancouver,
features nine more clients in addition to the five parties included
on the initial petition filed Sept. 26. Of the nine clients of
which six are parties from Greater Victoria.
One of the parties is Hugh Bacon, who with his wife Heather, have a
condo in Sidney.
They claim they're caught in the giant net that is the SVT as they
also spend much of the year at their other place, a seasonal
residence next to a ski hill in Ontario.
"We have rented the [Sidney condo] in the past to help pay the
bills," Bacon said. "And other times we'd stay there four to six
months of the year."
They were surprised with the retroactive application of the SVT
because had they known, they could have rented it out. But it was
impossible to retroactively rent the house out in 2018, saying they
didn't know until November.
"We're trapped, like many others," Bacon said. "At the time, my
wife was still undergoing cancer treatment in Ontario. And as you
know, you can't go back and forth."
Another client in the case is Claire Carlin, who supports the SVT
but says she is unfairly caught by its blanket ruling. Carlin's
husband lives in Bellingham. They married 27 years ago but
continued to live and work in their respective cities, and see each
other for small increments each month.
"We have an unconventional marriage, he is domiciled in Bellingham,
he worked there, and I worked in Victoria," said Carlin, who lives
in James Bay near Beacon Hill.
Despite retirement, little has changed and they visit each other
about once a week per month. He still has a business there, as well
as his children and grandchildren. Carlin volunteers with the
Francophone Historical Association of Victoria, leads a federally
funded research project in association with University of Victoria
on digitizing archives, and volunteers at Abkhazi Garden.
"My [condo] is not vacant. I live in it all year round. When I
first called the province, I was told by someone at the province
that my situation is collateral damage."
Making matters worse, Carlin is designated as a satellite owner,
because her partner is in the U.S. That bumps her to a two per cent
tax bracket.
"It's an extreme source of anxiety and stress that I might lose my
home. If I rented my house, I could avoid the tax, but I would have
to find somewhere to live. Or I could divorce my husband.
"The tax bill is so large I can't afford to pay it. I'm not
divorcing him because the province asked me to."
The petition seeks an injunction based on the claim that the SVT is
unconstitutional and infringes Section 7 of the Canadian Charter of
Rights and Freedoms, life, liberty and the security of the person.
"We are seeking to turn this into a class proceeding," said
Lawrence Wong. "But that comes later. For the time being, we are
seeking an interim injunction to suspend the provisions of this
tax, so that they don't have to sell their homes, or remortgage. We
want relief for all the proposed class members." [GN]
CAPITAL ONE: Fabian's Bid for Attys' Fees & Costs in Langer Denied
------------------------------------------------------------------
In the case, RANDY LANGER, et al. v. CAPITAL ONE AUTO FINANCE, a
division of Capital One, N.A, Civil Action No. 16-6130 (E.D. Pa.),
Judge Harvey Bartle, III of the U.S. District Court for the Eastern
District of Pennsylvania denied the motion of Rudy A. Fabian and
Fabian Legal Services, LLC for an award of attorney's fees and
costs out of the settlement fund in the action without prejudice to
his right to file a separate action against the Class counsel,
Richard E. Shenkan Shenkan and Shenkan Injury Lawyers, LLC.
The case is a class action against Defendant Capital One Auto
Finance, a division of Capital One, N.A., challenging the adequacy
of repossession notices provided to the class members who defaulted
on auto loans. The Court granted preliminary approval of the
settlement on May 24, 2019 and scheduled a hearing for Nov. 8, 2019
to consider final approval of the settlement and approval of
attorneys' fees and costs out of the settlement fund.
On Nov. 6, 2019, Fabian filed a motion for an award of attorney
fees and in opposition to the Plaintiffs' previously uncontested
motion for final approval of settlement. Fabian appeared with
counsel at the hearing on Nov. 8, 2019.
At the hearing, Fabian did not oppose the settlement as it
pertained to the class members and did not oppose an award of the
counsel fees in the amount of $2.6 million, the amount sought by
Shenkan. Instead, he claimed Shenkan had engaged him as a contract
attorney with respect to legal research on the case and had not
been fully paid. He concedes that there was no written contract
between him and Shenkan and states that his theory of recovery is
quantum meruit. He seeks what is due him out of the $2.6 million.
Fabian never entered his appearance as the class counsel and never
appeared before the Court, either in person or by signing any
papers filed in the action.
The Court approved the settlement as to the class members as fair,
reasonable, and adequate. However, it withheld approval of any
award to Shenkan pending resolution of Fabian's motion for
attorney's fees.
Shenkan argues that Fabian's motion for attorney's fees should be
denied because Fabian has not met the requirements of Rule 24(a) of
the Federal Rules of Civil Procedure for intervention. According
to Shenkan, Fabian's remedy lies in a separate lawsuit against him.
Indeed, Fabian currently has such an action pending in the U.S.
District Court for the Western District of Pennsylvania related to
a different class action which has settled and for which Fabian did
contract work for Shenkan. Shenkan has stated on the record at the
final approval hearing and in an affidavit filed in the Court that
he will not raise as a defense in any lawsuit by Fabian that Fabian
failed to move to intervene here.
Fabian did not specifically seek to intervene when he filed his
motion. He made no reference to Rule 24(a). His motion is
predicated on Rule 54(d)(2) and Rule 23(h)(1) of the Federal Rules
of Civil Procedure. In his reply brief, he argues for the first
time that intervention is not necessary, or in the alternative if
intervention is required, he has satisfied the necessary criteria.
Rule 24(a)(2) provides in pertinent part:
Judge Bartle holds that Fabian is not the class counsel and has
never entered his appearance for any party in the action. No class
member has chosen Fabian to represent him or her. As important as
his work may have been, he has no association with class counsel
Shenkan or Shenkan Injury Lawyers, LLC other than as a contract
attorney. Under the circumstances, he has no interest relating to
the property or transaction that is the subject of the action. He
does not have a legal interest as distinguished from interests of a
general and indefinite character. Rather, he has a separate and
distinct dispute for money allegedly owed for work he did for
Shenkan, not for work he did for the class or any member of the
class. Moreover, he has not alleged that he cannot protect his
interest and recover what may be due from Shenkan through the
filing a separate lawsuit.
Rules 23(h)(1) and 54(d)(2)(A) do not help Fabian. While these
rules deal with the award and procedures for the award of
attorney's fees, they clearly presupposed that the movant was, at
some point at least, the attorney for a prevailing party. Fabian,
as previously noted, was never the attorney of record for anyone.
Thus his attempt to rely on Rules 23(h)(1) and 54(d)(2)(A) is to no
avail.
Accordingly, Judge Bartle denied the motion of Fabian for an award
of attorney's fees and costs out of the settlement fund in the
action without prejudice to his right to file a separate action
against Shenkan and Shenkan Injury Lawyers, LLC.
A full-text copy of the Court's Nov. 27, 2019 Order is available at
https://is.gd/t3vX4r from Leagle.com.
RANDY LANGER & JAMES LANGER, Plaintiffs, represented by RICHARD E.
SHENKAN -- rshenkan@shenkanlaw.com -- SHENKAN INJURY LAWYERS LLC.
CAPITAL ONE AUTO FINANCE, A DIVISION OF CAPITAL ONE, N.A.,
Defendant, represented by SAMANTHA BETH KATS -- skats@stradley.com
-- STRADLEY RONON STEVENS & YOUNG LLP, BURT M. RUBLIN --
RUBLINBALLARDSPAHR.COM -- BALLARD SPAHR ANDREWS & INGERSOLL, LLP,
DANIEL J.T. MCKENNA -- MCKENNADBALLARDSPAHR.COM -- BALLARD SPAHR
ANDREWS & INGERSOLL, LLP, JOSEPH THOMAS KELLEHER --
jkelleher@stradley.com -- STRADLEY, RONON, STEVENS & YOUNG, LLP &
ROBERT EVAN HAIMES -- HAIMESRBALLARDSPAHR.COM -- BALLARD SPAHR
LLP.
RUDY A FABIAN, Movant, represented by BERNARD S. RUBB.
CATERPILLAR INC: Partial Summary Judgment in Kerns Partly Affirmed
------------------------------------------------------------------
In the case, JUDITH KERNS, et al., Plaintiffs-Appellees, v.
CATERPILLAR, INC., Defendant-Appellant, Case No. 18-5384 (6th
Cir.), Judge Raymond Kethledge of the U.S. Court of Appeals for the
Sixth Circuit affirmed in part and reversed in part the district
court's order grating partial summary judgment for the Plaintiffs.
The 12-year-old class action is the latest case in a series of
disputes over the vesting of lifetime benefits in
collective-bargaining agreements. The Plaintiffs -- the surviving
spouses of employees who retired under a collective-bargaining
agreement -- sued to obtain free healthcare benefits for life,
which they say were promised under the agreement.
In 1998, Caterpillar, a construction-equipment manufacturer,
entered into a new collective-bargaining agreement with its
workforce, which was represented by United Auto Workers. That
agreement included an "Insurance Plan Agreement," to which the
parties attached a "Group Insurance Plan." The Plan in turn
defined the employees' healthcare and retirement benefits.
Caterpillar and the UAW removed that "life without cost" language
when they entered into a new collective-bargaining agreement in
January 2005. Accordingly, Caterpillar notified the spouses of
deceased employees that the company would soon be deducting
healthcare premiums from their monthly pension payments. After
some of those spouses objected to that change, the company agreed
in writing not to charge those premiums to spouses of employees who
died before the 2005 agreement took effect -- or "actual surviving
spouses," as Caterpillar sometimes calls them here.
The litigation began in 2006. The Plaintiffs are surviving spouses
of employees who worked for Caterpillar, retired while the 1998
Plan Agreement and Plan were in effect, and have since died. Some
of those employees died before the 1998 Plan Agreement terminated
in 2005; some died afterward. All the Plaintiffs sought injunctive
and declaratory relief to the effect that, under the 1998 Agreement
and Plan, they have a "vested" entitlement -- meaning an
entitlement that continues after the expiration of the agreement
that gives rise to it -- to free healthcare benefits for life.
The district court thereafter certified a single class that
included spouses of Caterpillar employees who died while the 1998
Plan Agreement and Plan were in effect, and spouses of employees
who died afterward. In 2010 the district court granted partial
summary judgment for the Plaintiffs, relying in large part on the
Court's Yard-Man decision. Since then, however, the Supreme Court
has emphatically rejected the rule of Yard-Man, which it said place
a thumb on the scale in favor of vested retiree benefits in all
collective-bargaining agreements. Three years later, the Supreme
Court again reversed the Court in a case where it heard echoes of
Yard-Man in the Court's opinion.
Those decisions prompted Caterpillar to file several motions for
reconsideration, which the district court denied. Finally, in
March 2018, the district court entered a final judgment. The
appeal followed.
Caterpillar makes two preliminary arguments. First, Caterpillar
argues that the claims of "actual surviving spouses" -- meaning
again spouses of employees who both retired (or were eligible for
retirement) and died while the 1998 Plan Agreement and Plan
remained in effect -- are moot because Caterpillar has not charged
them premiums for the past 13 years and because there is no
evidence that Caterpillar plans to charge them premiums in the
future. Second, Caterpillar argues that the claims of the
remaining Plaintiffs are time-barred.
Judge Kethledge finds that the 1998 agreements included not only a
general-durational provision for the Plan Agreement, but also a
specific-durational provision for healthcare benefits under the
Plan. The general-durational provision appears in Section 9(a) of
the Plan Agreement. The durational provision specific to
healthcare benefits appears in Section 5.1 of the Plan, which
provides that "benefits in accordance with this Section" will be
provided to such Employee, retired Employee, and Dependents thereof
for the duration of any Agreement to which the Plan is a part.
The Judge holds that the durational language in Section 5.1 means
that Caterpillar's obligation to provide healthcare benefits under
Section 5 of the Plan terminated when the Plan Agreement did. And
the Plan Agreement terminated no later than Jan. 10, 2005, which
was the effective date of a different agreement in which
Caterpillar and the UAW struck a different deal as to healthcare
benefits. Hence the Plaintiffs cannot claim any entitlement under
Section 5 of the 1998 Plan now.
Caterpillar is not obligated to provide lifetime healthcare
benefits without cost to spouses of retirees who died after the
Plan Agreement expired.
In addition, the Judge holds that the termination of the prior
Agreement would not have "automatically terminated" the Plan. But
the parties in fact chose not to attach the Plan to another
agreement -- instead they agreed upon a different plan -- which
means that Caterpillar's obligation to provide benefits under
Section 5 to post-termination spouses terminated when the Plan
Agreement did.
For the foregoing reasons, Judge Kethledge affirmed the district
court's judgment as to the surviving spouses of retirees who both
retired (or were eligible to retire) and died while the 1998 Plan
Agreement remained in effect. He reversed the court's judgment as
to the surviving spouses of retirees who died after the 1998 Plan
terminated. The Judge remanded the case for proceedings consistent
with his Opinion.
A full-text copy of the Court's Nov. 13, 2019 Order is available at
https://is.gd/oKXi5S from Leagle.com.
CBL: LPF Group Funds $750MM Shareholder Class Action
----------------------------------------------------
According to an article posted by John Freund at Litigation Finance
Journal, LPF Group is funding a $750MM class action against
collapsed New Zealand Insurer CBL, alleging the company directors
breached their continuous disclosure obligations, made misleading
statements during the IPO, and engaged in insider trading.
As reported in Stuff, CBL collapsed in 2018, and now major
shareholders, led by investment firm Harbour and Argo Investments
Limited, are seeking redress for their financial losses. The
company failure was one of the largest at the time in New Zealand
corporate history.
The claim alleges that the IPO statements were misleading, as they
gave the impression that the company had enough in reserves to
cover its insurance obligations. The claim also states that company
executives failed to properly disclose key financial information
post-IPO, and that directors Peter Harris and Alistair Hutchinson
sold shares in CBL through companies they controlled, using
information not privy to the general public.
The now-defunct insurer, which did most of its business in Europe
and specialized in new home renovation insurance, cost shareholders
hundreds of millions when it went belly-up. Questions are also
being asked about the industry regulator, the Reserve Bank, which
had suspicions about CBL in 2013, but did not actively pursue an
investigation until 2017 due to a lack of resources.
CBL's directors are defending themselves against the allegations,
and deny any wrongdoing whatsoever. [GN]
CHARTER COMMUNICATIONS: Baird Fraud Suit Removed to C.D. Calif.
---------------------------------------------------------------
The case styled as Lance Baird, Individually and on behalf of a
class of others similarly situated, Plaintiff v. Charter
Communications, Inc. dba Charter Communications (CCI), Inc., a
Delaware corporation, Defendant, Case No. 19STCV41042 was removed
from the Los Angeles Superior Court to the U.S. District Court for
the Central District of California on Dec. 16, 2019, and assigned
Case No. 2:19-cv-10621.
The nature of suit is stated as Other Fraud.
Charter Communications, Inc. is an American telecommunications and
mass media company that offers its services to consumers and
businesses under the branding of Spectrum.[BN]
The Plaintiff appears pro se.
The Defendant is represented by:
Lukas Sosnicki, Esq.
Thompson Coburn LLP
2029 Century Park East 19th Floor
Los Angeles, CA 90067
Phone: (310) 282-2536
Fax: (310) 282-2501
Email: lsosnicki@thompsoncoburn.com
CLIENT SERVICES: Certification of Classes Sought in Voeks Suit
--------------------------------------------------------------
Megan Voeks moves the Court to certify the classes described in the
complaint of the lawsuit captioned MEGAN VOEKS, Individually and on
Behalf of All Others Similarly Situated v. CLIENT SERVICES, INC.,
Case No. 2:19-cv-01832 (E.D. Wisc.), and further asks that the
Court both stay the motion for class certification and to grant the
Plaintiff (and the Defendant) relief from the Local Rules setting
automatic briefing schedules and requiring briefs and supporting
material to be filed with the Motion.
Dicta in the Supreme Court's decision in Campbell-Ewald Co. v.
Gomez, left open the possibility that a defendant facing a class
action complaint could moot a class representative's case by
depositing funds equal to or in excess of the maximum value of the
plaintiff's individual claim with the court and having the court
enter judgment in the plaintiff's favor prior to the filing of a
class certification motion, the Plaintiff asserts, citing
Campbell-Ewald Co. v. Gomez, 136 S. Ct. 663, 672 (2016).
To avoid the risk of a defendant mooting a putative class
representative's individual stake in the litigation, the Seventh
Circuit instructed plaintiffs to file a certification motion with
the complaint, along with a motion to stay briefing on the
certification motion. Damasco v. Clearwire Corp., 662 F.3d 891,
896 (7th Cir. 2011), overruled on other grounds, Chapman v. First
Index, Inc., 796 F.3d 783, 787 (7th Cir. 2015) ("The pendency of
that motion [for class certification] protects a putative class
from attempts to buy off the named plaintiffs.").
While the Seventh Circuit has held that the specific procedure
described in Campbell-Ewald cannot force the individual settlement
of a class representative's claims, the same decision cautions that
other methods may prevent a plaintiff from representing a class,
the Plaintiff tells the Court, citing Fulton Dental, LLC v. Bisco,
Inc., No. 16-3574, 2017 U.S. App. LEXIS 10839 *9-10 (7th Cir. June
20, 2017). The Plaintiff asserts that one defendant has attempted
a similar tactic by sending a certified check to the proposed class
representative. Bonin v. CBS Radio, Inc., No. 16-cv-674-CNC (E.D.
Wis.); see also Severns v. Eastern Account Systems of Connecticut,
Inc., Case No. 15-cv-1168, 2016 U.S. Dist. LEXIS 23164 (E.D. Wis.
Feb. 24, 2016).
The Plaintiff is obligated to move for class certification to
protect the interests of the putative class, the Plaintiff
contends.
As the Motion to certify a class is a placeholder motion as
described in Damasco, the parties and the Court should not be
burdened with unnecessary paperwork and the resulting expense when
short motion to certify and stay should suffice until an amended
motion is filed, the Plaintiff asserts.
The Plaintiff also asks to be appointed as class representative,
and for the appointment of Ademi & O'Reilly, LLP, as class
counsel.[CC]
The Plaintiff is represented by:
John D. Blythin, Esq.
Mark A. Eldridge, Esq.
Jesse Fruchter, Esq.
Ben J. Slatky, Esq.
ADEMI & O'REILLY, LLP
3620 East Layton Avenue
Cudahy, WI 53110
Telephone: (414) 482-8000
Facsimile: (414) 482-8001
E-mail: jblythin@ademilaw.com
meldridge@ademilaw.com
jfruchter@ademilaw.com
bslatky@ademilaw.com
COLONIAL PARKING: Abraha's Class Cert. Bid Denied Without Prejudice
-------------------------------------------------------------------
The Hon. Colleen Kollar-Kotelly entered an order in the lawsuit
styled BERTHE BENYAM ABRAHA, et al. v. COLONIAL PARKING, INC., et
al., Case No. 1:16-cv-00680-CKK (D.D.C.), denying without prejudice
the Plaintiffs' Amended Motion for Class Certification, and setting
schedule in connection with the parties' recent settlement.
According to the Order, the Court has received the parties' Joint
Motion to Amend Scheduling Order. In the Joint Motion, the parties
indicate that they "have reached an agreement in principle to
settle this Action in its entirety," subject to certain conditions,
including the Court's certification of the proposed class and the
Court's approval of a proposed class settlement plan.
The Court understands that the Court's certification of the
proposed class is a condition of the parties' proposed settlement.
Accordingly, in light of the general guidance provided in Amchem
Products, Inc. v. Windsor, 521 U.S. 591 (1997), the Court shall
deny without prejudice the Plaintiffs' Amended Motion for Class
Certification. The parties may submit a renewed Motion for Class
Certification when they submit their Motion for Preliminary
Approval of Class Settlement. This way, the Court may consider the
certification motion in light of the proposed settlement terms.
Based on this development, the parties request that the Court
vacate the deadlines related to summary judgment motions in the
Amended Scheduling and Procedures Order. Accordingly, for good
cause and with the parties' consent, the Court vacates the January
10, 2020, February 10, 2020, and March 11, 2020 deadlines in the
Amended Scheduling and Procedures Order.
The parties also request that the Court set a deadline of January
13, 2020, for the parties to file a Motion for Preliminary Approval
of Class Settlement. For good cause, and with the parties'
consent, the Court adopts this deadline. The parties shall file
their Motion for Preliminary Approval of Class Settlement, along
with their renewed Motion for Class Certification, no later than
January 13, 2020.
The parties also request that the Court set a deadline for filing a
Motion for Final Approval of Class Settlement. To ensure that the
schedule allows sufficient time, the Court shall defer on setting
this deadline until the Court has resolved the parties' Motion for
Preliminary Approval of Class Settlement and Motion for Class
Certification.[CC]
COOK COUNTY, IL: Alicea Moves to Certify Class of Arrestees
-----------------------------------------------------------
The Plaintiffs in the lawsuit titled ELIZABETH ALICEA, MICHELLE
URRUTIA, KATINA RAMOS, and JACK ARTINIAN, individually, and on
behalf of all others similarly situated v. COUNTY OF COOK, and
THOMAS J. DART, individually, and in his official capacity as
Sheriff of Cook County, Case No. 1:18-cv-05381 (N.D. Ill.), filed
with the Court their Second Motion for Class Certification.
In accordance with the Court's November 20, 2019 Order, the
Plaintiffs seek certification of a Class defined as:
All arrestees who used the toilet in one of the Holding
Cells identified in Exhibit 12 to this Second Motion for
Class Certification prior to appearing at a probable cause
hearing since August 8, 2016.
The Plaintiffs' Class Action Complaint brings claims against
Defendants COUNTY OF COOK, and THOMAS J. DART ("Sheriff"), in his
official capacity as Sheriff of Cook County, alleging that the
Defendants' policy of monitoring and recording arrestees using the
toilets in holding cells in Cook County courthouses ("Holding
Cells") constitutes an unreasonable search, in violation of the
Fourth and Fourteenth Amendments to the United States Constitution,
via 42 U.S.C. Section 1983, and an intrusion upon seclusion.
The Plaintiffs also ask the Court to (1) appoint them as Class
Representatives; and (2) appoint Thomas A. Zimmerman, Jr., Esq.,
Sharon A. Harris, Esq., and Matthew C. De Re, Esq., as Class
Counsel.[CC]
The Plaintiffs are represented by:
Thomas A. Zimmerman, Jr., Esq.
Sharon A. Harris, Esq.
Matthew C. De Re, Esq.
ZIMMERMAN LAW OFFICES, P.C.
77 West Washington Street, Suite 1220
Chicago, IL 60602
Telephone: (312) 440-0020
Facsimile: (312) 440-4180
CREE INC: Young Seeks to Certify Class of LED Lightbulb Buyers
--------------------------------------------------------------
The Plaintiff in the lawsuit captioned JEFF YOUNG, individually and
on behalf of all others similarly situated v. CREE Inc., Case No.
4:17-cv-06252-YGR (N.D. Cal.), seeks certification of this Class:
All persons in California who purchased Cree LED Lightbulbs
for end use, and not resale, during the period from March
2013 to the present (the "Class").
Excluded from the Class are Cree, including its corporate
affiliates, parents, or subsidiaries; Cree's employees, including
officers and directors; and the Court to which this case is
assigned.
The action involves consumer protection, warranty, fraud, and
unjust enrichment claims based on Cree's uniform misrepresentations
to Plaintiff and other California consumers concerning the
comparative longevity and cost and energy savings of Cree's LED
Lightbulbs.
The Court will commence a hearing on April 21, 2020, at 2:00 p.m.,
to consider the Motion.[CC]
The Plaintiff is represented by:
Melissa S. Weiner, Esq.
Joseph C. Bourne, Esq.
PEARSON, SIMON & WARSHAW, LLP
800 LaSalle Avenue, Suite 2150
Minneapolis, MN 55402
Telephone: (612) 389-0600
Facsimile: (612) 389-0610
E-mail: mweiner@pswlaw.com
jbourne@pswlaw.com
- and -
Michael McShane, Esq.
AUDET & PARTNERS, LLP
711 Van Ness Avenue, Suite 500
San Francisco, CA 94102-3275
Telephone: (415) 568-2555
Facsimile: (415) 568-2556
E-mail: mmcshane@audetlaw.com
- and -
Charles J. LaDuca, Esq.
Alexandra C. Warren, Esq.
CUNEO GILBERT & LADUCA, LLP
4725 Wisconsin Avenue NW, Suite 200
Washington, DC 20016
Telephone: (202) 789-3960
Facsimile: (202) 589-1813
E-mail: claduca@cuneolaw.com
awarren@cuneolaw.com
- and -
Charles E. Schaffer, Esq.
LEVIN SEDRAN & BERMAN
510 Walnut Street, Suite 500
Philadelphia, PA 19106
Telephone: (215) 592-1500
Facsimile: (215) 592-4663
E-mail: cschaffer@lfsblaw.com
- and -
Michael Liskow, Esq.
THE SULTZER LAW GROUP P.C.
270 Madison Avenue, Suite 1800
New York, NY 10016
Telephone: (212) 969-7811
Facsimile: (888) 749-7747
E-mail: liskowm@thesultzerlawgroup.com
DASH LUBE: Court Narrows Claims in Moreno Suit
----------------------------------------------
The Hon. Dana M. Sabraw grants in part and denies in part the
Plaintiff's motion for class certification in the lawsuit entitled
ROBERTO MORENO, individually and on behalf of all others similarly
situated v. DASH LUBE, GHARDASH ENTERPRISES, INC., KAYLA CORP.,
collectively d/b/a as Jiffy Lube, PAYAM RYAN GHARDASH and POYA PAUL
GHARDASH, Case No. 3:18-cv-01922-DMS-AHG (S.D. Cal.).
Specifically, the Court grants the Motion on the Plaintiff's wage
statement claim, but denies the Motion on the Plaintiff's
off-the-clock claims. On the wage statement claim, the Court
certifies this class:
"All current and former hourly service technicians who worked
for Defendants at any of their Jiffy Lube automotive oil
change shops at any time from August 17, 2014 through
judgment."
The Plaintiff is appointed as Class Representative, and the law
firms of JCL Law Firm, APC and Sommers Schwartz P.C. are appointed
as Class Counsel pursuant to Rule 23(g) of the Federal Rules of
Civil Procedure.
The standard for class certification under Rule 23(a) of the
Federal Rules of Civil Procedure requires the plaintiff to prove by
a preponderance of the evidence that the requirements for class
certification are met.
That standard is not met here, the Court notes. Contrary to the
Plaintiff's suggestion that the Defendants had a company-wide
policy of editing employees' timesheet reports to reflect
sixty-minute lunch breaks, the evidence reflects two isolated
instances.
Considering the evidence as a whole, the Plaintiff has not shown by
a preponderance of the evidence that the Defendants had a "uniform
practice of falsifying timekeeping records to reflect 60-minute
meal periods that did not occur or that did not last the full 60
minutes." Therefore, Judge Sabraw opines the commonality
requirement is not met for the Plaintiff's off-the-clock
claims.[CC]
DO & CO: Round Seeks to Stop Illegal Collection of Biometric Data
-----------------------------------------------------------------
DANNY ROUND, on behalf of himself and all others similarly
situated, Plaintiff v. DO & CO CHICAGO CATERING, INC., Defendant,
Case No. 2019CH13272 (Ill. Cir., Nov. 15, 2019), seeks to put a
stop to the Defendant's unlawful collection, use, and storage of
the Plaintiff's and the proposed Class's sensitive biometric data
pursuant to the Biometric Information Privacy Act.
According to the complaint, in Illinois, at least one hundred
individuals perform work for the Defendant, including at the Des
Plaines location where the Plaintiff performed work as a laborer.
Individuals, who perform work for Defendant in Illinois have been
required to place their finger on the Defendant's biometric time
clocks. The Defendant uses a biometric time tracking system
(Biometric Scanner System) that requires workers and employees to
use their fingerprint as part of a means of authentication (in
addition to a 4-digit PIN).
The Defendant disregards their workers' statutorily protected
rights and unlawfully collects, stores, and uses their biometric
data in violation of the BIPA, the lawsuit says.
The Defendant provides catering services.[BN]
The Plaintiff is represented by:
Alejandro Caffarelli, Esq.
Lorrie T. Peeters, Esq.
Katherine Stryker, Esq.
CAFFARELLI & ASSOCIATES LTD.
224 N. Michigan Ave., Ste. 300
Chicago, IL 60604
Telephone: (312) 763-6880
EMERITUS CORP: Judge Tosses Part of Arbitration Agreement
---------------------------------------------------------
Maria Dinzeo, writing for Courthouse News Service, reported that
citing binding precedent, a federal judge tossed part of an
arbitration agreement that required nursing home employees suing
for unpaid wages to give up their right to seek civil penalties
under the Private Attorneys General Act, a law that deputizes
private citizens to enforce California's strict labor codes.
U.S. District Judge William Alsup ruled on Nov. 25 that waivers
forcing employees to give up their right to bring PAGA actions are
invalid because they hurt the state's interest in penalizing
employers who violate wage and labor safety laws.
For 17 years, Flora Gonzales worked with dementia patients as a
medication aide at a nursing home in Fremont, California. Around
2014 or 2015, the nursing home where she worked was bought by
Brookdale Senior Living, the largest senior housing operator in the
United States.
In 2017, Gonzales filed a class action against Brookdale, along
with the home's previous owner Emeritus, claiming she and other
employees had been deprived of meal and rest breaks and were
required to work overtime without compensation. The complaint
included a Private Attorneys General Act claim seeking civil
penalties on behalf of the state and her fellow workers.
That Brookdale and Emeritus sought to arbitrate rather than defend
the case is par for the course, as was with Gonzales' response that
the agreement Brookdale had her sign when it took over the facility
in 2014 is unconscionable and unenforceable.
Alsup saw differently, finding Gonzales couldn't show "any overly
harsh or one-sided result created by the agreement." But he found
the provision requiring Gonzales to waive her PAGA claim invalid
because it has nothing to do with arbitration and is simply
incompatible with public policy.
He pointed to Iskanian v. CLS Transportation Los Angeles, a
frequently cited 2014 California Supreme Court ruling that class
action waivers are unenforceable across the board.
While that might have been the end of it, Brookdale and Emeritus
countered with a recent U.S. Supreme Court decision in Epic Systems
v. Lewis that threatens to upend collective PAGA lawsuits.
Justice Neil Gorsuch wrote in the majority's opinion that it is not
illegal under federal law for employers to force workers to waive
their class action rights as a condition of employment.
As Alsup wrote in a brief, somewhat jeering summary of the case,
"In Epic Systems, the Supreme Court held that contract defenses
which invalidated arbitration agreements were a ‘device' that
manifested ‘judicial antagonism' towards arbitration and were
therefore preempted by the Federal Arbitration Act."
Alsup rejected the argument that the Supreme Court's decision in
Epic Systems overrules Iskanian. He cited Sakkab v. Luxottica,
where the Ninth Circuit said the Iskanian rule is binding on
federal courts:
"The California Supreme Court's decision in Iskanian expresses no
preference regarding whether individual PAGA claims are litigated
or arbitrated. It provides only that representative PAGA claims may
not be waived outright," the Ninth Circuit panel wrote. "The
Iskanian rule does not prohibit the arbitration of any type of
claim."
Alsup wrote, "Put simply, PAGA waivers are invalid because they
hurt California's interest in enforcing the Labor Code and not
because of any reason that has anything to do with arbitration.
Therefore, our court of appeals held in Sakkab, that the Federal
Arbitration Act did not pre-empt the California Supreme Court's
decision in Iskanian. For these same reasons, the holdings of Epic
Systems and Sakkab are therefore not clearly irreconcilable and
this order remains bound by Sakkab."
Reached by phone on Nov. 26, Brookdale's attorney Shannon Rea Boyce
with Littler Mendelson said she does not comment on ongoing
litigation.
Employment attorney Jocelyn Burton, who represents Gonzales, said
on Nov. 26 employment defense lawyers have been looking to expand
Epic ever since the decision came out.
"They want to expand Epic beyond what it is, and most courts have
not accepted the analysis that Epic implicitly overrules Iskanian,"
Burton said.
But PAGA is one of the few strong protections that low-wage workers
have, she explained, as employers know that wage-and-hour lawsuits
can be prohibitively expensive to pursue.
"It's to enforce labor laws that otherwise wouldn't be enforced,"
Burton said. "Part of the problem is in a lot of these cases we are
dealing with really low-wage workers and it's difficult for an
attorney to justify opening a case for maybe $10,000 worth of wage
claims. Employers know that, and as a result there's nothing other
than PAGA to deter employers from flaunting labor laws."
Burton said she doesn't really see Epic weakening PAGA at this
point. "The Supreme Court tends to be pro arbitration, but they
haven't really taken on PAGA."
A copy of the Order Re Motion to Compel Arbitration is available
at:
https://is.gd/cJUo2P
EQUIFAX INC: Class Certification Denied in Data Breach Suit
-----------------------------------------------------------
Lawyer's Daily reports that a judge denied class action
certification in a suit that sought compensatory and punitive
damages against credit-reporting company Equifax Inc. following a
massive global data breach that affected more than 143 million
people worldwide. [GN]
FACEBOOK INC: Hacking Victims May Seek Independent Audits
---------------------------------------------------------
Nicholas Iovino, writing for Courthouse News Service, reported that
four million Facebook users who had personal data exposed in a
September 2018 data breach can team up in a fight to make the
social media giant submit to independent audits of its data
security measures, a federal judge ruled on Nov. 26.
U.S. District Judge William Alsup granted a hacking victim's motion
for class certification to seek an injunction that would force the
company to reform its data security system. One potential remedy
could involve placing an independent monitor in Facebook's
headquarters to scrutinize the company's data security protocols.
However, the judge refused to allow the class to seek monetary
damages from Facebook for credit monitoring services and loss of
control over private information.
Last year, hackers managed to infiltrate millions of Facebook
accounts by exploiting a vulnerability in a "View As" feature for
user profiles. Facebook initially said the breach affected 50
million users but has since downgraded the estimate to 29 million
users, including 4 million in the United States.
Hackers swiped the names and contact information -- such as phone
numbers or email addresses -- of 2.7 million U.S. users, and
infiltrated the profiles of an additional 1.2 million U.S. users,
gaining access to usernames, birthdates, workplaces, hometowns,
schools attended and other personal information, including places
where they recently "checked in" or were "tagged."
Lead plaintiff Stephen Adkins sued Facebook on Sept. 28, 2018, mere
hours after the data breach was made public in a Facebook blog
post.
Adkins' attorneys sought class certification for damages related to
an increased risk of identity theft, lost time users spent
responding to the data breach, loss of privacy, and diminished
value of private information.
Because Akins never paid for credit monitoring services, Alsup
found he could not represent a class seeking compensation for those
services. The judge also refused to certify a class seeking
monetary damages for the "diminished value of personal
information."
Plaintiffs' lawyers argued the data breach reduced the value of
users' personal information, which they could potentially sell to
third parties as Facebook does for targeted advertising.
Judge Alsup rejected that theory, finding it farfetched that
personal data is as valuable to users as it is to Facebook. The
social media giant made more than $55 billion in 2018, largely from
targeted advertising revenue directly linked to users' personal
data.
"Although it's true that each user's information is worth a certain
amount of money to Facebook and the companies Facebook gave it to,
it does not follow that the same information has independent
economic value to an individual user," Alsup wrote in his 16-page
ruling.
However, the judge found class certification was appropriate for 4
million users seeking an injunction to make Facebook adopt specific
data security reforms. Adkins wants an independent auditor and
internal security teams to conduct simulated hacking attacks, run
automated security monitoring and periodically review the company's
security protocols.
"Any final order may also embed a monitor into Facebook's
headquarters," Alsup wrote.
Adkins also seeks a court order that would require training and
testing for security personnel on new procedures; segmenting
Facebook applications and creating firewalls to block hackers from
accessing other areas during an attack; conducting regular database
scans and security checks; routine and continual training and
education for internal security teams; and meaningful education for
users about threats posed by data breaches and steps they can take
to protect themselves.
During a motion to dismiss hearing in May, Facebook argued the
terms of service users agree to when they sign up for or continue
using Facebook exempts it from liability for data breaches.
Plaintiff lawyers countered the limitation-of-liability clause
should be deemed "unconscionable" and "unenforceable" because it
directly contradicts pledges Facebook has made about protecting
user privacy.
In June, Alsup found the clause exempts Facebook from liability for
breach of contract but it does not "unequivocally preclude
liability for negligence."
Facebook and its lawyers did not immediately respond to email
requests for comment on Nov. 27, but the company said in a 2018
blog post about the hack that "people's privacy and security is
incredibly important, and we're sorry this happened. It's why we've
taken immediate action to secure these accounts and let users know
what happened."
Facebook is represented by Elizabeth Deeley --
elizabeth.deeley@lw.com -- of Latham & Watkins in San Francisco.
Plaintiffs' class attorney Andrew Friedman --
afriedman@cohenmilstein.com -- of Cohen Milstein Sellers & Toll in
New York, also did not respond to an email request for comment on
Nov 27.
A copy of the Order on Motion for Class Certification and Motions
to Strike is available at:
https://is.gd/It7tHs
FACEBOOK INC: May Have to Turn Over Cambridge Analytica Info
------------------------------------------------------------
Alaina Lancaster, writing for Law.com, reports that Facebook might
be required to turn over information it was forced to give U.S.
regulators in a case stemming from its Cambridge Analytica
scandal.
Judge Vince Chhabria of the U.S. District Court for the Northern
District of California floated the idea on Nov. 4 as an avenue that
could expedite a proposed class action over claims the social
network breached its privacy guidelines when Facebook apps gathered
unauthorized data from users indirectly through friends. [GN]
FACEBOOK INC: Must Explain Evidence Request in Cambridge Case
-------------------------------------------------------------
Daniel R. Stoller, writing for Bloomberg Law, reports that Facebook
Inc. must tell a California federal court why it wants to restrict
information on certain third-party applications and other documents
in a consumer class action over the Cambridge Analytica data
scandal.
Facebook should be prepared to answer questions about how many
internal documents plaintiffs can get during discovery, the U.S.
District Court for the Northern District of California said in a
pretrial order. It ordered Facebook to explain what limits it wants
on documents that show restrictions it placed on applications that
could access user data.
Class plaintiffs want to know how Facebook allowed apps such as the
one involved in the Cambridge Analytica episode to scrape user data
without consent. The defunct British consultancy, which had ties to
to Donald Trump's 2016 presidential campaign, improperly obtained
Facebook data on 87 million users, igniting the lawsuit.
U.S. District Court Judge Vincent Chhabria asked whether discovery
would "be limited to an inquiry about what restrictions Facebook
imposed on the particular apps that had access to the named
plaintiffs' information, or would it include a general inquiry
about the restrictions Facebook placed on apps?" He also asked if
it was "even possible to determine which apps were given access to
which users' information?"
Facebook didn't immediately respond to a request for comment on the
Nov. 1 pretrial order.
Facebook lost its bid to challenge Chhabria's decision that the
class had standing to pursue its claims. The judge said users have
a privacy interest in data shared with friends, even if they didn't
show they were victims of identity theft or other economic
injuries. The company filed for an immediate appeal, but Chhabria
denied it Oct. 31 without further comment. District court judges
review in some cases whether parties can proceed with so-called
interlocutory appeals.
Other Fights
Facebook is facing two other lawsuits over its relationship with
Cambridge Analytica from Washington, D.C. attorney general Karl
Racine (D) and from Cook County, Ill. prosecutor Kim Foxx (D). It's
also facing a multistate privacy probe by state attorneys general.
Facebook reached deals with the Federal Trade Commission for $5
billion, the Securities and Exchange Commission for $100 million,
and the U.K Information Commissioner's Office for 500,000 pounds
($644,000) to end Cambridge Analytica probes.
Gibson, Dunn & Crutcher LLP represents Facebook. Keller Rohrback
LLP and Bleichmar Fonti & Auld LLP, which represent the class,
declined to comment.
The case is In re Facebook Inc. Consumer Privacy User Profile
Litig., N.D. Cal., No. 18-md-02843, pretrial order 11/1/19 [GN]
FACTOR75: Fischler Files ADA Suit in E.D. New York
--------------------------------------------------
A class action lawsuit has been filed against Factor75, LLC. The
case is styled as Brian Fischler Individually and on behalf of all
other persons similarly situated, Plaintiff v. Factor75, LLC,
Defendant, Case No. 1:19-cv-07044 (E.D.N.Y., Dec. 16, 2019).
The Plaintiff filed the case under the Americans with Disabilities
Act.
Factor 75 is an online platform that plans, prepares, and delivers
nutritionist-designed and chef-crafted meals for its users.[BN]
The Plaintiff is represented by:
Douglas Brian Lipsky, Esq.
Lipsky Lowe LLP
630 Third Avenue, Fifth Floor
New York, NY 10017-6705
Phone: (212) 392-4772
Fax: (212) 444-1030
Email: doug@lipskylowe.com
FREEDOM SOLAR: Procedural Guidance for Settlement in Naiman Entered
-------------------------------------------------------------------
In the case, SIDNEY NAIMAN, individually and on behalf of all
others similarly situated, Plaintiff, v. FREEDOM SOLAR SERVICES,
INC; FREEDOM FOREVER, LLC; and DOES 1 through 10, inclusive, and
each of them, Defendants, Case No. C 19-00256 WHA (N.D. Cal.),
Judge William Alsup of the U.S. District Court for the Northern
District of California has entered a notice and order regarding
putative class actions, the factors to be evaluated for any
proposed class settlement, and the protocol for interviewing
putatice class members.
For the settlement guidance, the Judge advises the counsel to
review the Procedural Guidance for Class Action Settlements, which
is available on the website for the U.S. District Court for the
Northern District of California at
www.cand.uscourts.gov/ClassActionSettlementGuidance.
In addition, the counsel should review the following substantive
and timing factors that the Judge will consider in determining
whether to grant preliminary and/or final approval to a proposed
class settlement: (i) adequacy of representation; (ii) due
diligence; (iii) cost-benefit for absent class members; (iv) the
release; (v) reversion; (vi) claim procedure; (vii) attorneys'
fees; (viii) a right to opt-out is not a cure-all; (ix) incentive
payment; (x) notice to class members; (xi) timing of proposes
settlement; (xii) interim counsel motions to talk settlement;
(xiii) settlement of individual plaintiff's claim; and (ix)
communications with putative class members.
A full-text copy of the Court's Nov. 27, 2019 Notice & Order is
available at https://is.gd/dINjxz from Leagle.com.
Sidney Naiman, individually and on behalf of all others similarly
situated & Deborah Schick, individually and on behalf of all others
similarly situated, Plaintiffs, represented by Todd Michael
Friedman -- tfriedman@toddflaw.com -- Law Offices of Todd M.
Friedman, P.C., Adrian R. Bacon -- abacon@toddflaw.com -- Law
Offices of Todd M. Friedman, P.C., Kelsey Lynn Kuberka --
Kelsey.Kuberka@toddflaw.com -- Law Offices of Todd M. Friedman,
Meghan Elisabeth George -- mgeorge@toddflaw.com -- Law Offices of
Todd M. Friedman, P.C. & Tom E. Wheeler -- twheeler@toddflaw.com --
Law Offices of Todd M. Friedman, PC.
Freedom Forever, LLC, Defendant, represented by Julie Beth Isen --
jisen@freedomforever.com -- Freedom Forever LLC.
Freedom Solar Services Inc, Defendant, represented by Dominic
Ganalongo Mendoza -- dgm_law@yahoo.com.ph -- Freedom Forever LLC &
Julie Beth Isen, Freedom Forever LLC.
GO NY TOURS: Must Face Bus Driver's FLSA Class Action
-----------------------------------------------------
Bloomberg Law reports that Go New York Tours, Inc. can't avoid
litigating the class action Fair Labor Standards Act lawsuit of a
bus driver alleging the company failed to pay him and other
similarly-situated employees minimum and overtime wages. The tour
bus company sought to dismiss the case for failure to prosecute
because the plaintiff took no action for approximately 22 months.
The court found that sanctions less severe than dismissal were
appropriate in this case, because the lack of prosecution wasn't
motivated by an obstructionist litigation strategy, and there
wasn't an extreme, deliberately dilatory pattern. The case is
Balderramo v. Go N.Y. Tours Inc., 2019 BL 421025, S.D.N.Y., Case
No. 1:15-cv-02326-ER, 11/1/19. [GN]
GOOD KITHCEN: Nisbett Files ADA Suit in New York
------------------------------------------------
A class action lawsuit has been filed against The Good Kitchen,
LLC. The case is styled as Kareem Nisbett Individually and on
behalf of all other persons similarly situated, Plaintiff v. The
Good Kitchen, LLC, Defendant, Case No. 1:19-cv-11518 (S.D.N.Y.,
Dec. 16, 2019).
The Plaintiff filed the case under the Americans with Disabilities
Act.
The Good Kitchen makes easy to heat-and-eat delicious, high
quality, prepared meals that can be delivered wherever and
whenever.[BN]
The Plaintiff is represented by:
Christopher Howard Lowe, Esq.
Lipsky Lowe LLP
420 Lexington Avenue, Suite 1830
New York, NY 10170
Phone: (212) 764-71717
Email: chris@lipskylowe.com
GULF OIL: Attorneys Discuss Supreme Court's Class Action Ruling
---------------------------------------------------------------
Christina Tellado, Esq. -- Christina.Tellado@hklaw.com -- a partner
and co-head of Holland & Knight's national wage and hour group, and
Deisy Castro, Esq. -- Deisy.Castro@hklaw.com -- and Dana Feinstein,
Esq. -- Dana.Feinstein@hklaw.com -- associates at Holland & Knight,
in an article for Law.com, wrote: Imagine the following scenario:
You are newly engaged to represent a client in a putative class or
collective action. Naturally, you want to gather information in
order to learn more about the claims and potential defenses in the
litigation -- so why not begin by conducting interviews of the
putative class or collective action members?
Despite the desire to be proactive, attorneys do not have an
unlimited ability to speak with putative collective and class
action members. Counsel's communications will be governed by the
Supreme Court's decision in Gulf Oil v. Bernard, which held that an
order limiting communication between attorneys and prospective
class members "should be based on a clear record and specific
findings reflecting a weighing of the need for a limitation and the
potential interference with the parties' rights. . . .[S]uch a
weighing should result in a carefully drawn order that limits
speech as little as possible, consistent with the parties' rights.
. . . The mere possibility of abuses in class-action litigation
does not justify routine adoption of a communications ban that
interferes with the formation of a class or the prosecution of a
class action in accordance with the Federal Rules," in Gulf Oil,
452 U.S. at 90.
Each circuit has interpreted Gulf Oil differently -- and although
Gulf Oil was decided in 1981, courts in 2019 are still providing
new interpretations of the Supreme Court's decision. For example,
in July 2019, the U.S. District Court for the Central District of
California held that defense counsel who obtained release
agreements from putative class members before class certification
had acted improperly because the releases did not reference the
class action. Accordingly, the court allowed class members the
option to revoke their agreements, in Lopez v. Liberty Mutual
Insurance, in July 2019.
The complexity involved in contacting putative class or collective
action members may be best illustrated by Weller v. Dollar General,
which is currently pending in the U.S. District Court for the
Eastern District of Pennsylvania. Specifically, in March 2019, a
magistrate judge analyzed defense counsel's behavior, balancing
Pennsylvania law, the Pennsylvania Rules of Professional Conduct
and the Fair Labor Standards Act, to ultimately hold that defense
counsel should have sought court authorization or requested
information through the discovery process before speaking to
putative class members in Weller, in March 2019.
Yet, in an unexpected turn of events, the district judge, in
response to objections to the magistrate judge's decision, ordered
that an evidentiary hearing be conducted pursuant to Gulf Oil
because, as he explained in a two-and-a-half-page footnote, the
magistrate judge, in finding that the putative class members are
protected as represented parties, improperly relied on Pennsylvania
state law. Specifically, the court explained that, pursuant to
Standard Fire Insurance v. Knowles, putative class members are not
considered represented parties while a motion for class
certification is pending.
This holding is in contrast to Pennsylvania law, Pa. R. Civ. P.
1701(a), under which putative class members are considered parties
while a motion for certification is pending. The court further
explained that, given that the case is a class action venued in
federal court, federal procedural law governs, and as such, the
state law rules that govern conduct with represented parties are
inapplicable.
Therefore, it is clear that interviewing putative collective or
class action members without risking court rebuke is not a
cut-and-dried issue. Before proceeding with any such
communications, it is imperative to review the requirements and
legal precedent in the applicable jurisdiction in order to
determine whether such interviews are allowed. Any named plaintiff
is a party who is undoubtedly represented and is off limits. See
Model Rule of Professional Conduct 4.2. However, as highlighted by
the Weller case, interviewing putative class or collective members
before certification may potentially be allowed. But due to the
evolving interpretation of Gulf Oil, a plan to communicate with
putative members of a class or collective should be approached
cautiously. Defense counsel should expect that any communications
with putative members of a class or collective may be scrutinized
by the court and plaintiffs counsel. Accordingly, it is imperative
to craft a clear communication plan, which does not mislead the
interviewees.
Finally, it is impossible to prohibit communications between a
putative collective or class action member and his or her current
employer. Accordingly, any representatives of the employer should
be thoroughly briefed on how to properly communicate with current
employees who are putative collective or class action members. Any
communications should be solely work-related and should avoid any
statements that could be seen as coercive.
By considering legal precedent and basic principles of legal ethics
-- and employing common-sense interview techniques -- it is
possible to zealously represent your client in a class or
collective action without violating collective or class rights.
[GN]
HALLIBURTON CO: Waived Right to Compel Arbitration, Suit Claims
---------------------------------------------------------------
Bloomberg Law reports that Halliburton Co. waived its right to
compel arbitration of class and collective action claims under the
Fair Labor Standards Act and the New Mexico Minimum Wage Act,
brought by a former employee seeking unpaid overtime on behalf of a
class of directional drillers who worked for the company as
independent contractors during a three-year period.
The plaintiffs argued Halliburton took actions that were
inconsistent with its right to arbitrate, while Halliburton
contended that arbitration agreements containing collective action
waivers in contracts signed by the workers were enforceable. [GN]
HE CHENG RESTAURANT: Wang Seeks to Recover Unpaid Overtime Wages
----------------------------------------------------------------
Dao Feng Wang, on behalf of himself and others similarly situated,
Plaintiff v. He Cheng Restaurant Corp. d/b/a Ayame Hibachi & Sushi,
Ping An Xi Le Inc., d/b/a Ayame Hibachi & Sushi, Jian Tu, Sheng Le
Chen, Bao May, and Qing Chi Cai, Defendants, Case No. 2:19-cv-20397
(D.N.J., Nov. 15, 2019), arises from the Defendants' employment
policies, patterns and practices that violate the Fair Labor
Standards Act and the New Jersey State Wage and Hour Law.
The Plaintiff alleges that he is entitled to recover from the
Defendants unpaid overtime wages, liquidated damages, prejudgment
and post-judgment interest, and attorneys' fees and costs.
Mr. Wang currently resides in Queens, New York. From September 10,
2017, to October 26, 2019, the Plaintiff was employed as delivery
person by the Defendants at their sushi restaurant located at 526
Washington Street, in Hoboken, New Jersey.[BN]
The Plaintiff is represented by:
Qinyu Fan, Esq.
HANG AND ASSOCIATES, PLLC
136-20 38th Ave., Suite 10G
Flushing, NY 11355
Telephone: (718) 353-8588
Facsimile: (718) 353-6288
INSY: Miller Wants Class Action Excluded from Liquidation Plan
--------------------------------------------------------------
Jim Christie, writing for Reuters, reports that Insys Therapeutics
Inc's bankruptcy liquidation plan should be denied due to its
injunction on future litigation, the lead plaintiff in a securities
class action against the opioids maker said on Nov. 4 in filing.
Clark Miller, who is represented by Cross & Simon and Lowenstein
Sandler, had sued Insys alleging it made false and misleading
statements between 2014 and 2016 to inflate its stock price. In an
objection filed in U.S. Bankruptcy Court in Delaware, Miller said
the class action lawsuit must be excluded from the liquidation plan
for it to be approved. [GN]
INTER-CONTINENTAL HOTEL: Class Action Belongs in Federal Court
--------------------------------------------------------------
Kathleen Dailey, writing for Bloomberg Law, reports that a San
Diego hotel worker's class action against Inter-Continental Hotels
Group Inc. belongs in federal court because the estimated amount in
controversy totals about $9.2 million, the Southern District of
California said.
Mallory Cavada, a former front desk manager at Staybridge Suites in
San Diego, filed a putative class action against joint employers
Inter-Continental, IHG Management Maryland LLC, and
Intercontinental Hotels Group Resources Inc., alleging unfair
competition, wage, overtime, meal and rest break, business-related
expense, and wage statement violations of California labor law.
[GN]
JUDICIAL CORRECTIONAL: Court Dismisses Fourth Amended Hamilton Suit
-------------------------------------------------------------------
In the case, EMERSON HAMILTON, et al., Plaintiffs, v. JUDICIAL
CORRECTIONAL SERVICES LLC, et al., Defendants, Case No.
2:18-cv-00933-RDP (N.D. Ala.), Judge R. David Proctor of the U.S.
District Court for the Northern District of Alabama, Southern
Division, granted CHC Companies, LLC ("CHC")'s and Correct Care
Solutions, LLC ("CCS")'s Motion to Dismiss the Fourth Amended
Complaint.
The case is one of a series of several cases, primarily putative
class action suits, that have been brought against Judicial
Correction Services, Inc. ("JCS"), corporate entities related to
JCS, and municipalities that contracted with JCS for probation
supervision services. In these cases, the Court has ruled on
numerous motions to dismiss, several substantive dispositive
motions following discovery, and one motion for class
certification.
The Plaintiffs' Fourth Amended Complaint in the case, like the
complaints in all of the other cases, focuses on probation services
provided by JCS to various municipalities in the state of Alabama.
The vast majority of the well-pleaded facts in the Fourth Amended
Complaint relate to JCS.
Based on a careful review of the Fourth Amended Complaint, the only
well-pleaded (i.e., non-conclusory) facts alleged regarding CHC and
CCS are (1) that CHC merged with Defendant JCS on Sept. 30, 2011,
and (2) that CCS purchased Defendant CHC in 2014. The remaining
allegations are wholly conclusory. The Plaintiffs make no effort,
in the fourth iteration of their Complaint, to provide supporting
factual detail to flesh out these conclusory allegations regarding
CHC and CCS.
For example, the Plaintiffs allege CHC directed and controlled
Defendant JCS' operations and CCS directed and controlled Defendant
JCS' operations. The Plaintiffs further allege each of the
Plaintiffs was sentenced to probation, which Defendant JCS,
Defendant CHC, and/or Defendant CCS extended beyond two years. To
further illustrate the conclusory nature of the allegations
regarding CHC and CCS, the Court notes that the Plaintiffs allege
Plaintiff Antonio Calhoun was continuously kept on probation by
Defendants JCS, CHC and CCS for approximately six years, from Feb.
12, 2009 through at least Feb. 5, 2015. Interestingly, according
to earlier allegations of the Fourth Amended Complaint, CHC did not
"merge" with JCS until 2011, and CCS did not "purchase" JCS until
2014. Therefore, it is not plausibly alleged that either CHC or
CCS kept Mr. Calhoun on probation from 2009 through 2015. There
are similar examples of this type of conclusory factual allegations
in the amended pleading.
Count I of the Fourth Amended Complaint asserts a Violation of Due
Process claim presumably against all the Defendants. Counts II,
III, and IV contain Civil Conspiracy claims under 42 U.S.C. Section
1983 involving different municipal courts, again presumably against
all the Defendants. Count V contains a Money Had and received
claim, against presumably against all the Defendants.
The matter is before the Court on CHC's and CCS's Motion to Dismiss
the Fourth Amended Complaint.
First, Judge Proctor holds that the Plaintiffs' Fourth Amended
Complaint, rather than specifying which Defendant took which
actions against which Plaintiffs, lumps CHC and CCS in with JCS
when describing what action "Defendants" allegedly have taken
against the Plaintiffs. Therefore, the Plaintiffs' Fourth Amended
Complaint is an impermissible shotgun pleading and is due to be
dismissed for this reason alone. But there is more.
Second, the Judge holds that the allegations of the Fourth Amended
Complaint regarding CHC and CCS are simply not plausible factual
allegations. In addition to the issues discussed, the Plaintiffs
allege that each of the Defendants, JCS, CHC and CCS, contracted
with the municipalities. However, the Court is aware, from its
dealings with a number of these cases, that the City of
Childersburg entered into its contract with JCS in 2005. Thus, the
claims asserted against CHC and CCS are also due to be dismissed
because the sparse allegations of the Fourth Amended Complaint
regarding CHC and CCS fail to state plausible claims against them.
Third, the Judge finds that the Fourth Amended Complaint does not
identify any policy of either CHC or CCS that caused the
Plaintiffs' injuries. Nor does it provide any explanation
regarding the manner of the "direction and control" allegedly
exercised by CHC and CCS. Nor does it allege any action taken by
CHC or CCS that caused the Plaintiffs' rights to be violated. In
sum, no factual detail is provided. The Judge cannot discern any
plausible basis for holding CHC or CCS liable for the conduct of
JCS and/or its employees based on the conclusory allegations
presented the Fourth Amended Complaint. Therefore, for this
additional reason, the Plaintiffs' Sectoin 1983 claims fail to
state a claim against CHC and CCS.
Finally, the Judge holds that although a court should generally
allow a plaintiff the opportunity to replead at least once,
dismissal of a complaint with prejudice is warranted under certain
circumstances. On three separate occasions, the Plaintiffs have
amended their complaint after the Defendants filed motions to
dismiss on the previous version of the Complaint. And the
Plaintiffs have had competent counsel at all stages of the
litigation.
For all of the alternative reasons he discussed, Judge Proctor
granted CHC's and CCS's Motion to Dismiss the Fourth Amended
Complain. A separate order will be entered.
A full-text copy of the Court's Nov. 13, 2019 Order is available at
https://is.gd/2AHy7k from Leagle.com.
Emerson Hamilton, Bennie Bruno, Willie Walker, Tevell Crawford,
Antonio Calhoun, Lewis Mallory, Joshua Hall, Earnest Norwood,
Correy Kelley, Norwood McDonald & Khomenie Datcher, Plaintiffs,
represented by Lloyd W. Gathings, II, GATHINGS LAW & Honora McKeown
Gathings, GATHINGS LAW.
Hardin Bradford, Robert Walker, Marcel Lawson & Rodney Pope,
Plaintiffs, represented by Honora McKeown Gathings, GATHINGS LAW.
Judicial Correctional Services LLC, formerly known as Judicial
Correction Services Inc, Defendant, represented by Larry S. Logsdon
-- llogsdon@wallacejordan.com -- WALLACE JORDAN RATLIFF & BRANDT,
LLC, Michael L. Jackson -- mjackson@wallacejordan.com -- WALLACE
JORDAN RATLIFF & BRANDT, LLC, Wesley Kyle Winborn --
wwinborn@wallacejordan.com -- WALLACE JORDAN RATLIFF & BRANDT &
Wilson F. Green -- wgreen@fleenorgreen.com -- FLEENOR & GREEN LLP.
KEIS GEORGE: Jefferson Files FDCPA Suit in N.D. Ohio
----------------------------------------------------
A class action lawsuit has been filed against Keis George LLP, et
al. The case is styled as Ykeam Yusef Jefferson, individually and
on behalf of all others similarly situated, Plaintiff v. Keis
George LLP, and John Does 1 - 25, Defendants, Case No.
1:19-cv-02903 (N.D. Ohio, Dec. 16, 2019).
The Plaintiff filed the case under the Fair Debt Collection
Practices Act.
Keis George is a national subrogation law firm representing
insurance companies and self-insured businesses.[BN]
The Plaintiff is represented by:
Amichai E. Zukowsky, Esq.
23811 Chagrin Blvd., Ste. 160
Beachwood, OH 44122
Phone: (216) 800-5529
Fax: (216) 514-4987
Email: ami@zukowskylaw.com
KINDRED HEALTHCARE: Kirby Moves to Certify Class and 3 Subclasses
-----------------------------------------------------------------
In the lawsuit titled MICHAEL KIRBY, LAURA KINGSTON, KEOSHA GATES,
MARTHA PARRA, MICHELLE MARIE DICK, JEFFREY MONTES, individually,
and on behalf of other members of the general public similarly
situated v. KINDRED HEALTHCARE OPERATING, LLC, a Delaware limited
liability company; KND 52, L.L.C., a Delaware limited liability
company; KND 55, L.L.C., a Delaware limited liability company; THC
- ORANGE COUNTY, LLC, a California limited liability company;
Bayberry Care Center, L.L.C., a Delaware limited liability company;
Foothill Nursing Company Partnership, a California general
partnership; and DOES 1 through 10, inclusive, Case No.
5:19-cv-00833-JLS-DFM (C.D. Cal.), the Plaintiffs move the Court to
certify that this action is maintainable as a class action as to
these claims:
(a) Violation of California Labor Code sections 1182.12, 1194,
1197, 1197.1 and 1198 (Unpaid Minimum Wages);
(b) Violation of California Labor Code section 226.7 and 1198
(Failure to Authorize and Permit Rest Periods);
(c) Violation of California Labor Code section 226.7 and
512(a) (Failure to Provide Meal Periods);
(d) Violation of California Labor Code sections 222.5, 2802
(Failure to Pay Physical Examination Costs and
Unreimbursed Business Expenses);
(e) Violation of California Labor Code section 226(a), 1174(d)
and 1198 (Non-Compliant Wage Statements);
(f) Violation of California Labor Code sections 201, 202 and
203 (Wages Not Timely Paid Upon Termination); and
(g) Violation of California Business & Professions Code
sections 17200, et seq.
The Plaintiffs also ask the Court to certify a class and
subclasses:
* Class:
All hourly, non-exempt non-clinician employees and Certified
Nursing Assistants of Kindred Healthcare Operating, LLC or
any of its subsidiaries in the State of California at any
time from May 12, 2013 through the date of certification
(hereinafter referred to as the proposed "Class Members");
* Drug-Testing Subclass:
All Class Members who were required to undergo mandatory
drug and/or tuberculin testing and/or physical examinations
after May 12, 2013 through the date of certification;
* Rest Break Subclass:
All Class Members subject to a collective bargaining
agreement that provides for "a rest period during each half
shift of four hours worked" or "every four hours worked" and
who worked any shift at least 3.5 hours in length at any
time from May 12, 2013 through the date of certification;
* On-Premises Rest Break Subclass:
All Class Members who worked any shift at least 3.5 hours in
length at any time from May 12, 2013 through the date of
certification; and
* Meal Period Premium Subclass:
All Class Members who worked any shift at least 5 hours in
length at any time from May 12, 2013 through the date of
certification.
The Plaintiffs further ask the Court to appoint Michael Kirby,
Laura Kingston, Keosha Gates, Martha Parra, Michelle Marie Dick,
and Jeffrey Montes as class representatives, and to appoint
Capstone Law APC as class counsel.
The Court will commence a hearing on April 17, 2020, at 10:30 a.m.,
to consider the Motion.[CC]
The Plaintiffs are represented by:
Melissa Grant, Esq.
Robert Drexler, Esq.
Molly DeSario, Esq.
Jonathan Lee, Esq.
CAPSTONE LAW APC
1875 Century Park East, Suite 1000
Los Angeles, CA 90067
Telephone: (310) 556-4811
Facsimile: (310) 943-0396
E-mail: Melissa.Grant@capstonelawyers.com
Robert.Drexler@capstonelawyers.com
Molly.DeSario@capstonelawyers.com
Jonathan.Lee@capstonelawyers.com
LOISAIDA ENTERPRISES: Fails to Pay Minimum & OT Wages, Perez Says
-----------------------------------------------------------------
CONRADO RODRIGUEZ PEREZ, individually and on behalf of others
similarly situated, Plaintiff v. LOISAIDA ENTERPRISES CORPORATION,
(D/B/A LOSAIDA ENTERPRISES CORP) and WILLIAM ROBLES, Defendants,
Case No. 1:19-cv-10600 (S.D.N.Y., Nov. 15, 2019), alleges that the
Plaintiff worked for the Defendants in excess of 40 hours per week
without appropriate minimum wage and overtime compensation pursuant
to the Fair Labor Standards Act of 1938 and the New York Labor
Law.
The Plaintiff alleges that the Defendants failed to maintain
accurate record-keeping of the hours worked and failed to pay him
appropriately for any hours worked, either at the straight rate of
pay or for any additional overtime premium. He asserts that the
Defendants' conduct extended beyond him to all other similarly
situated employees.
Mr. Perez is a former employee of Defendants Loisaida Enterprises
Corporation and William Robles.
The Defendants own, operate, or control several buildings, located
at 738 East 5th Street, in New York City, under the name "Losaida
Enterprises Corp."[BN]
The Plaintiff is 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
LVNV FUNDING: Arbitration Ruling in Maisano Suit Affirmed
---------------------------------------------------------
In the case, VINCENT C. MAISANO, on behalf of himself and those
similarly situated, Plaintiff-Appellant, v. LVNV FUNDING, LLC,
Defendant-Respondent, Case No. A-1775-18T2 (N.J. Super. App. Div.),
the Superior Court of New Jersey, Appellate Division, affirmed the
trial court's Nov. 9, 2018-order compelling arbitration and
dismissing the complaint with prejudice.
The Plaintiff entered into a credit card agreement with Credit One.
The six-page Agreement included an "Important Notice" prominently
placed on the first page of the document, directing the cardholder
to read the Arbitration Agreement portion of the document for
important information about his and Credit One's legal rights under
the Agreement.
The Plaintiff used the credit card to make purchases. He defaulted
by failing to tender the required credit card payment. Credit One
subsequently wrote off his account in December 2012 with an unpaid
balance of $826.13.
Defendant LVNV Funding acquires unpaid credit card accounts and
pursues collection of those accounts. In January 2013, after the
Plaintiff's debt was deemed uncollectible, Credit One assigned all
rights, title and interest in the account to Sherman Originator
III, LLC. The account was assigned from Sherman Originator III,
LLC to Sherman Originator, LLC, and then to the Defendant.
The Defendant filed an action in the Special Civil Part to recover
the unpaid credit card debt from the Plaintiff. The documents
evidencing assignment of the Plaintiff's account to the Defendant
were annexed to the Special Civil Part complaint. As a result of
that lawsuit, the Plaintiff made payments to satisfy the
outstanding debt.
In June 2018, the Plaintiff filed a putative class action for
declaratory judgment, injunctive relief, and damages against the
Defendant. In lieu of filing an answer, the Defendant filed a
motion to dismiss and compel arbitration pursuant to the Agreement.
After hearing the arguments of the counsel, the motion judge
concluded the Arbitration Agreement was valid, clear, and not in
violation of either of the two statutes or the case law. Having
determined the Arbitration Agreement was valid, the judge granted
the Defendant's motion to compel arbitration and dismissed the
matter with prejudice.
On appeal, the Plaintiff argues the motion judge erred by (1)
deeming it was for the arbitrator to decide whether the assignment
of his credit card debt to the Defendant was void; (2) concluding
the Arbitration Agreement did not violate the plain language
requirements; and (3) relying on inadmissible hearsay in the
Defendant's affidavits.
The Court holds that the Agreement provides the cardholder with
notice of the types of claims subject to arbitration, and plainly
outlines the difference between arbitration and judicial
proceedings. The Arbitration Agreement clearly explains
arbitration replaces the right to go to court, including the right
to a jury and the right to participate in a class action" and
expressly states, in arbitration, a dispute is resolved by a
neutral arbitrator instead of a judge or jury. Arbitration
procedures are simpler and more limited than rules applicable in
court.
Having reviewed the record, particularly the language of the
Arbitration Agreement, the Court is satisfied that the document
clearly and explicitly articulated the waiver of the right to
proceed to court and unambiguously required the parties to submit
all disputes relating to the Agreement to arbitration.
The Court is also satisfied the judge did not abuse her discretion
in considering the affidavits in support of defendant's motion.
The Burton affidavit was sufficient to support the judge's finding
that the Agreement was made in the regular course of Credit One's
business, was an authentic business record, and therefore fell
within an exception to the hearsay rule.
Because it discerns no abuse of discretion in the judge's admission
of the affidavits, the Court is are satisfied that the remainder of
the Plaintiff's arguments are without sufficient merit to warrant
discussion in a written opinion.
For these reasons, the Court affirmed the order compelling
arbitration of the Plaintiff's claims. However, the judge
improvidently dismissed the Plaintiff's complaint with prejudice.
The Uniform Arbitration Act provides for stays, rather than
dismissals, of matters pending arbitration. Therefore, the Court
remanded the matter to the trial court to enter an amended order
staying the action pending arbitration.
A full-text copy of the Court's Nov. 27, 2019 Opinion is available
at https://is.gd/5R2T9z from Leagle.com.
Scott C. Borison (Legg Law Firm, LLP) of the District of Columbia,
Maryland, and California bars, admitted pro hac vice, argued the
cause for appellant (Kim Law Firm LLC, and Scott C. Borison,
attorneys; Yongmoon Kim, Scott C. Borison, and Catherine Rhy, of
counsel and on the briefs).
Michael A. Iannucci -- iannucci@blankrome.com -- argued the cause
for respondent (Blank Rome LLP, attorneys; Michael A. Iannucci, on
the brief).
MAURY COBB: Stevens Files FDCPA Suit in S.D. Ohio
-------------------------------------------------
A class action lawsuit has been filed against Maury Cobb Attorney
at Law LLC, et al. The case is styled as Justina Stevens,
individually and on behalf of all others similarly situated,
Plaintiff v. Maury Cobb Attorney at Law LLC, and John Does 1 - 25,
Defendants, Case No. 2:19-cv-05482-MHW-CMV (S.D. Ohio, Dec. 16,
2019).
The Plaintiff filed the case under the Fair Debt Collection
Practices Act.
Maury Cobb, Attorney At Law, LLC is a law firm in Birmingham,
AL.[BN]
The Plaintiff is represented by:
Amichai E. Zukowsky, Esq.
23811 Chagrin Blvd., Ste. 160
Beachwood, OH 44122
Phone: (216) 800-5529
Fax: (216) 514-4987
Email: ami@zukowskylaw.com
MCKESSON CORP: Judge Denies Motion to Dismiss Class Action
----------------------------------------------------------
Shearman & Sterling LLP, in an article for Mondaq, reports that on
October 29, 2019, Judge Charles R. Breyer of the United States
District Court for the Northern District of California denied a
motion to dismiss a putative securities class action brought
against a pharmaceutical wholesaler and two of its former
executives. Evanston Police Pension Fund v. McKesson Corp., et
al., 18-cv-06525-CRB (N.D. Cal. Oct. 29, 2019). Plaintiffs
asserted claims under Sections 10(b) and 20(a) of the Securities
Exchange Act of 1934 and Rule 10b-5 promulgated thereunder,
alleging that defendants knew about and participated in a
price-fixing conspiracy that allowed the company to profit from the
inflated prices of generic drugs during the alleged class period
and caused the company to suffer decreased earnings once reports
revealed government investigations into alleged price-fixing and
prices dropped. The Court denied defendants' motion to dismiss,
holding that plaintiffs adequately alleged material misstatements,
scienter, and loss causation at the pleading stage.
The Court first addressed plaintiffs' allegations that defendants
participated in or knew of a price-fixing conspiracy. The Court
held that plaintiffs failed to sufficiently plead direct evidence
of defendants' participation in an unlawful price-fixing agreement,
noting that rather than pleading direct evidence of participation
by defendants, plaintiffs merely pled "direct evidence of unlawful
agreements among generic drug manufacturers" and that "the more
plausible inference from this evidence is that [the company, a
wholesaler,] was a victim of, not a participant in," the
price-fixing conspiracy. Id. at *10. The Court also found
plaintiffs' circumstantial-evidence allegations of "parallel
conduct[] and five plus factors"—(1) actions against
self-interest, (2) deviation from pre-collusion behavior, (3) state
and federal investigations, (4) a market susceptible to collusion,
and (5) participation in trade organizations—to be insufficient,
relying on the Ninth Circuit's rejection of "very similar plus
factors" in In re Musical Instruments and Equipment Antitrust
Litigation, 798 F.3d 1186, 1189-94 (9th Cir. 2015). The Court did,
however, find that plaintiffs adequately alleged that the company's
executives "were aware of price-fixing in the generic
pharmaceutical industry when the challenged statements were made."
Id. at *14.
The Court next considered six categories of statements plaintiffs
alleged were made false or misleading based on defendants'
awareness of price-fixing in the generic pharmaceuticals industry,
and it held that three of the categories could not be found to be
false or misleading.
First, regarding defendants' statements that the company "provided
value to its pharmaceutical customers by obtaining competitive
prices for generic drugs," the Court found that such statements
"were not rendered false by the manufacturers' price-fixing
conspiracy" and they "simply described the value of a wholesaler to
independent pharmacies." Id. at *15. Similarly, the Court found
that statements by defendants that a generic-drug manufacturing
subsidiary of the company was a "growth vehicle" were not false or
misleading, because plaintiffs had "not sufficiently alleged [the
subsidiary's] participation in an unlawful conspiracy" and,
therefore, "a general discussion of its growth and other merits
would not be rendered misleading by failing to disclose other
companies' antitrust violations." Id. at *16. The Court also
rejected plaintiffs' argument that a third category of statements
that the company had "derisked its FY17 earnings from generics
inflation" were false or misleading, finding such statements to be
"essentially forward-looking" and, therefore, not actionable. Id.
at *17.
The Court held, however, that three other categories of statements
were actionable. Statements that supply disruptions could increase
prices were held to be actionable despite defendants' arguments
that, even if there were a price-fixing conspiracy, the company
might still have faced a supply disruption which would increase
prices and, indeed, that any illegal agreement between
manufacturers limiting supply of drugs to the company would
"technically be a supply disruption." Id. at *14-15. The Court
held instead that "[h]aving touted the good news that supply
disruptions were leading to increased prices and thus increased
profits," defendants "had a duty to also disclose that some portion
of its increased profits was actually [allegedly] due to far
riskier and less sustainable unlawful agreements." Id. at *15.
The Court similarly found defendants' statements describing the
generic drug market as "competitive" were false or misleading,
because "[c]laiming the generic drug market is competitive would be
misleading if there was in fact widespread price fixing." Id. at
*16. Finally, the Court determined that certain statements by
defendants attributing the company's positive financial results to
"legitimate market forces," such as drug price increases, were
false or misleading, because they "put generic drug price increases
at issue, and therefore obligated [the company] to disclose the
collusion helping to drive the inflation." Id. at *17.
The Court next held that plaintiffs sufficiently alleged scienter
under the "core operations" theory, pursuant to which the falsity
of a statement may itself be "indicative of scienter where it is
combined with allegations regarding a management's role in the
company that are particular and suggest that defendant had actual
access to the disputed information, and where the nature of the
relevant fact is of such prominence that it would be absurd to
suggest that management was without knowledge of the matter." Id.
at *19. Based on the executive defendants' "statements touting
their knowledge of the generics market, combined with the magnitude
of the price-fixing conspiracy, its significance to [the company's]
revenues, and the executive defendants' roles at the company," the
Court held that the company and its top executives must have been
aware that collusive behavior drove price inflation. Id. at *18.
Had the company's executives possessed the "intimate" knowledge of
generic drug pricing and conditions in the market they claimed, the
Court held, "it was at least deliberately reckless not to
investigate the accuracy of their statements that price increases
were being driven by specific, legitimate supply disruptions,
rather than collusive activity." Id. at *19. The Court also held
that the "strong correlation between financial results and stock
options or cash bonuses" for company executives supported an
inference of scienter. Id. at *21.
Finally, the Court determined that plaintiffs sufficiently alleged
loss causation based on the company's stock price drops when the
purported corrective disclosures occurred. As such, the Court thus
denied the motion to dismiss. [GN]
MDL 2639: Dismissal of Class Actions Upheld
-------------------------------------------
Courthouse News Service reported that the Ninth Circuit upheld the
dismissal of several class actions stemming from the
Mayweather-Pacquiao fight. The class members claim the boxers and
others concealed Pacquiao's pre-existing injury and that they would
not have purchased tickets to the boxing match had they known about
the injury.
A copy of the Opinion is available at:
https://is.gd/TZmgsA
MENDOTA HEIGHTS, MN: Objections to Denial of Bid to Compel Tossed
-----------------------------------------------------------------
In the case, RANDOLPH PENTEL, KIM POVOLNY, MICHELLE POVOLNY,
MICHAEL POVOLNY, Plaintiffs, v. MICHAEL SHEPARD AND CITY OF MENDOTA
HEIGHTS, Defendants, Case No. 18-CV-1447 (NEB/TNL) (D. Minn.),
Judge Nancy E. Brasel of the U.S. District Court for the District
of Minnesota overruled the Plaintiffs' objections to Magistrate
Judge Tony N. Leung's order denying their motion to compel the
Minnesota Department of Public Safety ("DPS") and the City to
search a DPS database and produce responsive documents, seeking
information about searches by Michael Shepard of people other than
the Plaintiffs who may be potential class members.
The Plaintiffs sued Shepard and the City of Mendota Heights under
the Driver's Privacy Protection Act ("DPPA") and the Minnesota
Government Data Practices Act ("MGDPA"), claiming that Shepard, a
police officer, wrongfully accessed their driver's license
information. During discovery in the lawsuit, the Plaintiffs
subpoenaed non-party Minnesota Department of Public Safety ("DPS")
for records showing Shepard's searches of the Law Enforcement
Message Switch ("LEMS") database.
Among other things, the Plaintiffs sought LEMS audit returns for
any individual Shepard may have searched by name or license plate
number from May 25, 2014 to Nov. 3, 2017. At the time the
Plaintiffs served the 2019 Subpoena, the City had agreed to assist
the Plaintiffs with determining which of the LEMS accesses could be
attributed to Shepard. But DPS did not have any such agreement,
and it timely objected to the subpoena on the grounds that
compliance would be unduly burdensome. Then, once the City learned
of the estimated volume of LEMS audit data that it would be
required to sort through to determine Shepard's use of LEMS, it
withdrew its offer of assistance.
The Plaintiffs filed a motion, asking this Court to order DPS to
produce to the City LEMS accesses by City personnel, to order the
City to determine which of those accesses were made by Shepard, to
order the City to identify for the Plaintiffs the persons whose
records Shepard had accessed, and finally to order the City to
inform the victims that they were accessed by Shepard without a
permissible purpose and that a lawsuit has been commenced to
enforce their rights.
Magistrate Judge Tony N. Leung denied all of the requested relief
and determined that each party should bear its own attorney fees
and expenses. The Plaintiffs timely objected.
On appeal to the Court, the Plaintiffs now argue that the Order (1)
is clearly erroneous because the burden to non-party DPS does not
outweigh the probative value of the information sought; (2) is
clearly erroneous because it did not address the City's obligations
and because the burden to the City does not outweigh the probative
value of the information sought; (3) is contrary to law because
Plaintiffs could solicit participation in their suit with a court
order; (4) is contrary to law because a motion to compel discovery
is a proper vehicle for ordering the City to send
breach-notification letters; and (5) is clearly erroneous in its
determination on attorney fees.
Judge Brasel finds that none of these arguments persuasive, and
sees no clear error in Judge Leung's conclusions.
First, the Judge concludes that there is no clear error in Judge
Leung's conclusion that ordering non-party DPS to comply with the
2019 Subpoena would be overly burdensome when weighed against the
relative value of the information sought. Even if they received
the information that they requested, in order to certify their
putative class, the Plaintiffs would still have the difficult task
of differentiating wrongful accesses from lawful accesses to
satisfy the numerosity requirements of Rule23. The Order
determined that the heavy burden of compliance outweighed the
limited value of raw access information that provides no insight
into the reasons the accesses were made. Accordingly, the Order as
to DPS is affirmed.
Second, she finds no clear error in the magistrate judge's
determination that requiring the City to go through the multistep
process of identifying which of approximately 86,000 accesses may
be attributed to Shephard imposes an undue burden and expense on
the City that outweighs the limited value of the information that
would result. Accordingly, the Plaintiffs' objections as to the
portion of the Order addressing the City are overruled.
Third, the Judge need not express an opinion on whether Maracich
bars the Plaintiffs from soliciting participation from others.
Further, Magistrate Judge Leung noted several of the ways the
rights of the class members are protected, including individual
requests for audits. Accordingly, there is no reversible error due
to the Order's discussion of Maracich and the Plaintiffs' objection
to the Order on this basis is overruled.
Fourth, as the Order correctly determined, the Plaintiffs are
attempting to seek a dispositive ruling on Count II under the guise
of a Rule 37 motion to compel. And yet, even in their objections,
they can point to no authority that permits a United States
Magistrate Judge to issue such a dispositive ruling on a Rule 37
motion to compel. Accordingly, the Order's conclusion that it
lacked the authority to order the City to notify twelve individuals
that their information was accessed by Shepard is not contrary to
law.
Finally, the Order did not apportion fees and costs under the
federal statute -- instead, it determined, as it must, that fees
were not warranted under Rule 37. Fed. R. Civ. P. 37(a)(5)(B). The
Judge will not disturb the magistrate judge's finding under Rule
37. Later in the lawsuit, if appropriate under 18 U.S.C. Section
2724(b)(3), nothing precludes the Plaintiffs from seeking an
attorney fee award under that statute, including for this discovery
dispute. Finally, because DPS is not a party and therefore cannot
be held liable under 18 U.S.C. Section 2724, the Judge affirms the
Order's decision not to award fees and costs against DPS.
Based upon all the files, records, and proceedings in the
above-captioned matter, Judge Brasel denied the Plaintiffs'
objections to the Order.
A full-text copy of the Court's Nov. 13, 2019 Order is available at
https://is.gd/xAfaYQ from Leagle.com.
Randolph Pentel, On Behalf of Themselves and All Others Similarly
Situated, Kim Povolny, On Behalf of Themselves and All Others
Similarly Situated, Michelle Povolny, On Behalf of Themselves and
All Others Similarly Situated & Michael Povolny, On Behalf of
Themselves and All Others Similarly Situated, Plaintiffs,
represented by Charles V. Firth , Engelmeier & Umanah, PA, Jonathan
A. Strauss , Sapientia Law Group PLLC, Lorenz F. Fett, Jr. ,
Sapientia Law Group, Robin M. Wolpert -- robinw@sapientialaw.com --
Sapientia Law Group PLLC & Sonia L. Miller-Van Oort --
SoniaMV@sapientialaw.com -- Sapientia Law Group.
Michael Shepard, in his individual capacity as an employee of the
City of Mendota Heights, Defendant, represented by Elizabeth Peppin
Ridley -- eridley@heleyduncan.com -- Heley, Duncan & Melander, PLLP
& Mark P. Hodkinson -- mhodkinson@heleyduncan.com -- Heley Duncan &
Melander, PLLP.
City of Mendota Heights, Defendant, represented by Jon K. Iverson
-- jon@irc-law.com -- Iverson Reuvers Condon, Stephanie A. Angolkar
-- stephanie@irc-law.com -- Iverson Reuvers Condon & Susan M.
Tindal -- susan@irc-law.com -- Iverson Reuvers Condon.
Minnesota Department of Public Safety, Respondent, represented by
Oliver J. Larson, Minnesota Attorney General's Office.
MICROSOFT CORP: 9th Cir. Hears Arguments in Gender Bias Case
------------------------------------------------------------
Amanda Bronstad, writing for Law.com, reports that a lawyer
bringing a gender discrimination class action against Microsoft
Corp. faced tough questions on Nov. 4 from a federal appeals court
panel struggling to understand the process by which the software
giant determined its pay and promotions.
Anne Shaver, a partner at San Francisco's Lieff Cabraser Heimann &
Bernstein, tried to convince the U.S. Court of Appeals for the
Ninth Circuit to reinstate a nationwide class action alleging
Microsoft systematically discriminated against more than 8,600
female engineers and information technology professionals, in both
pay and promotions. The panelists peppered her with questions about
how Microsoft evaluated its employees, and Judge Johnnie Rawlinson
of the U.S. Court of Appeals for the Ninth Circuit repeatedly asked
her to identify the policy at issue.
"But under Dukes, we have to find what the policy is because the
policy has to operate across the board," said Rawlinson, referring
to the 2011 U.S. Supreme Court decision Walmart v. Dukes. "I don't
feel there is a policy that's been pointed out."
The panel continued to have questions after Lynne Hermle --
lchermle@orrick.com -- began to argue for Microsoft. Rawlinson even
asked her not to use the word "clearly" again.
"Please don't say 'clearly,' because very little is clear to me in
this case," she said.
Hermle, a partner in the Menlo Park office of Orrick Herrington &
Sutcliffe, who was asking the panel to affirm a federal judge's
2018 decision not to certify the class, insisted that plaintiffs
attorneys had shifted their legal theories during the course of the
case to identify a policy that did not exist.
"The reason there is so much confusion about it is there is not a
single piece of evidence to support it," she told the panel. "There
was no evidence this was a common practice."
The case is one of several gender bias cases that targeted the
technology industry. Other companies that have faced scrutiny
include Google Inc., Oracle Corp., Twitter and Uber Technologies.
In his decision for Microsoft, U.S. District Judge James Robart of
the Western District of Washington found there were no uniform
policies or job descriptions that tied the proposed class
together.
The Ninth Circuit agreed to take up an interlocutory appeal of that
decision, which more than 30 civil rights, labor and women's rights
groups pushed to reverse in an amicus brief.
After Microsoft filed its opening brief, six organizations provided
supporting amicus briefs, including the U.S. Chamber of Commerce
and the Washington Legal Foundation. Among other things, they wrote
that a class action was not appropriate in the case.
Shaver, on Nov. 4, told the panel, "What's at stake in this case is
the ability of employees to challenge employment practices that
discriminate against them through a class action."
She acknowledged that Microsoft's employment practices involved
some discretion but explained how the company puts employees into
"peer groups," based on similar work, then separates them into "pay
bands" or "stock levels" to determine their pay. That process, in
which women are "locked into" lower pay bands, systematically
discriminates based on gender, she said.
"The result is a woman might perform equally or better than her
male peer but can't be paid the same as him because he's in a
higher pay band," she said.
She also leaned on statistics that showed "significant" disparities
in pay and promotions between men and women at Microsoft.
"When the claim is the most senior levels of the company knew and
failed to remedy it, aggregate statistics are relevant," she said.
"This was a company with very serious problems, and leadership knew
about it."
U.S. District Judge Leslie Kobayashi, sitting by distinction from
the District of Hawaii, questioned whether Microsoft's most senior
executives, who could have been just "rubber stamping" the
decisions of the lower level managers, were aware of potential
discrimination in the pay practices.
Addressing Hermle, Ninth Circuit Judge Richard Paez asked whether
Robart had applied the wrong standard in rejecting the plaintiffs'
statistical evidence.
Hermle said he did not.
"What the plaintiffs chose to do was apply the statistics at the
EVP level where decisions are clearly not being made," Hermle
responded. [GN]
MIDLAND CREDIT: Certification of Classes Sought in Matke Suit
-------------------------------------------------------------
Deborah Matke and Roland Obarski move the Court to certify the
classes described in the complaint of their lawsuit titled DEBORAH
MATKE and ROLAND OBARSKI, Individually and on Behalf of All Others
Similarly Situated v. MIDLAND CREDIT MANAGEMENT, INC., Case No.
2:19-cv-01831-LA (E.D. Wisc.), and further ask that the Court both
stay the motion for class certification and to grant them (and the
Defendant) relief from the Local Rules setting automatic briefing
schedules and requiring briefs and supporting material to be filed
with the Motion.
Dicta in the Supreme Court's decision in Campbell-Ewald Co. v.
Gomez, left open the possibility that a defendant facing a class
action complaint could moot a class representative's case by
depositing funds equal to or in excess of the maximum value of the
plaintiff's individual claim with the court and having the court
enter judgment in the plaintiff's favor prior to the filing of a
class certification motion, the Plaintiffs assert, citing
Campbell-Ewald Co. v. Gomez, 136 S. Ct. 663, 672 (2016).
To avoid the risk of a defendant mooting a putative class
representative's individual stake in the litigation, the Seventh
Circuit instructed plaintiffs to file a certification motion with
the complaint, along with a motion to stay briefing on the
certification motion. Damasco v. Clearwire Corp., 662 F.3d 891,
896 (7th Cir. 2011), overruled on other grounds, Chapman v. First
Index, Inc., 796 F.3d 783, 787 (7th Cir. 2015) ("The pendency of
that motion [for class certification] protects a putative class
from attempts to buy off the named plaintiffs.").
While the Seventh Circuit has held that the specific procedure
described in Campbell-Ewald cannot force the individual settlement
of a class representative's claims, the same decision cautions that
other methods may prevent a plaintiff from representing a class,
the Plaintiffs tell the Court, citing Fulton Dental, LLC v. Bisco,
Inc., No. 16-3574, 2017 U.S. App. LEXIS 10839 *9-10 (7th Cir. June
20, 2017). The Plaintiffs assert that one defendant has attempted
a similar tactic by sending a certified check to the proposed class
representative. Bonin v. CBS Radio, Inc., No. 16-cv-674-CNC (E.D.
Wis.); see also Severns v. Eastern Account Systems of Connecticut,
Inc., Case No. 15-cv-1168, 2016 U.S. Dist. LEXIS 23164 (E.D. Wis.
Feb. 24, 2016).
The Plaintiffs contend they are obligated to move for class
certification to protect the interests of the putative class.
As the Motion to certify a class is a placeholder motion as
described in Damasco, the parties and the Court should not be
burdened with unnecessary paperwork and the resulting expense when
short motion to certify and stay should suffice until an amended
motion is filed, the Plaintiffs argue.
The Plaintiffs also ask the Court to appoint them as class
representatives, and to appoint Ademi & O'Reilly, LLP, as class
counsel.[CC]
The Plaintiffs are represented by:
John D. Blythin, Esq.
Mark A. Eldridge, Esq.
Jesse Fruchter, Esq.
Ben J. Slatky, Esq.
ADEMI & O'REILLY, LLP
3620 East Layton Avenue
Cudahy, WI 53110
Telephone: (414) 482-8000
Facsimile: (414) 482-8001
E-mail: jblythin@ademilaw.com
meldridge@ademilaw.com
jfruchter@ademilaw.com
bslatky@ademilaw.com
PLAINS MIDSTREAM: McCarthy Tetrault Attorneys Discuss Ruling
------------------------------------------------------------
Kyle McMillan, Esq. -- kmcmillan@mccarthy.ca -- and Nathan Stewart,
Esq. -- nstewart@mccarthy.ca
-- of McCarthy Tetrault, in an article for Lexology, reported that
a recent decision of the Alberta Court of Queen's Bench has
clarified the limits on demands for undertakings, specifically in
the context of cross-examining on an affidavit in a proposed class
action. The decision provides useful guidance on when the Court
will -- and will not -- compel responses to undertakings refused by
a deponent in this situation. In short, the Court is mindful of
efficiency and the possibility of prejudice to the defendant, and
will only compel responses on undertakings where such production is
likely to assist the Court at the certification application.
In the case at bar, Rieger v Plains Midstream Canada ULC, the
plaintiffs are awaiting a 2020 certification hearing on a proposed
class action involving a pipeline release near Sundre, Alberta. In
preparing for the certification hearing, the plaintiffs conducted
cross-examination on affidavits filed by the defendant's corporate
representative. The defendant's representative provided some
undertakings, but refused others, leading to the plaintiffs'
application to compel such responses.
In Alberta, adverse parties have the right to cross examine on
affidavits filed in support of, or in response to, an application.
However, for the purposes of the application, the deponent is a
witness, and greater restraint is expected in requesting
undertakings than in the examination of a litigant for discovery.
Justice Poelman noted that with respect to cross-examination on an
affidavit generally:
Undertakings should only be directed where the deponent referred to
information or documents in the affidavit (or must have reviewed
information or documents to make the statements in the affidavit);
or the undertakings relate to an important issue in the application
and answering them would not be overly onerous and "would likely
significantly help the court in the determination of the
application".
The reference to "the court" is worth highlighting. The Court may
order disclosure at the pre-certification stage of a proposed class
action, but such discretion will only be exercised in cases where
the requested productions are "necessary in order to inform the
certification process". In other words, undertakings from a
cross-examination on an affidavit at the pre-certification stage
will only be ordered to assist the Court in determining whether to
certify an action, and not for the purpose of assisting a litigant.
The Court considers the factors in sections 5(1) and 5(2) of the
Class Proceedings Act (Alberta) in determining what will be of
assistance to the certification decision:
[C]ertification requires that the pleadings disclose a cause of
action, there be an identifiable class of two or more persons, the
claims of the prospective class members raise one or more common
issues, a class proceeding would be the preferable procedure for
the fair and efficient resolution of the common issues, and there
is an appropriate proposed representative. [. . .]
Section 5(2) includes a list of factors which, at minimum, the
court must consider when determining whether a class proceeding
would be the preferable procedure [. . .] [including] consideration
of other proceedings or other means of resolving the claims. The
preferability inquiry must be conducted in the context of the three
principal goals of class actions, namely judicial economy,
behaviour modification and access to justice, but the ultimate
question is whether other available means of resolution are
preferable, not whether a class action would fully achieve those
goals.
The merits of the alleged cause of action are not a consideration,
and the Court militates against litigating such merits at the
pre-certification stage. The Court is also mindful to avoid
unnecessary complications that could delay the certification
hearing.
In the case at bar, the plaintiffs requested emails and contact
lists for members of the proposed class with whom the defendant had
communicated, as well as some summary compensation figures
regarding the more than 500 claims the defendant had already
settled. In denying the application to compel undertakings, Justice
Poelman concluded that most of the requested undertakings would not
assist the Court in deciding whether to certify the action, and in
the case of the emails requested, would not be of enough value to
compel their production. His Lordship noted that although some
undertakings may have been of tactical use to the plaintiffs, that
was irrelevant to the application.
Justice Poelman further noted that the main issue expected at the
certification hearing is whether a class action would be the
preferable procedure for the fair and efficient resolution of the
common issues. Although the process used by the defendant in
settling certain claims may be relevant to that question, the
certification hearing "is not the occasion for a detailed inquiry
into all aspects of the processes followed by the defendant".[9]
His Lordship also noted that the issue of whether other parties
that had previously settled were aware of the class action may be
relevant, but that the proposed undertakings did not speak to that
issue, and that the parties would therefore have to deal with that
point using the existing record.
The main takeaway of this decision is that the Court is not readily
inclined to order deponents under cross-examination to produce
additional evidence, especially in the pre-certification stage of a
proposed class action. Applicants should endeavor to argue only why
such undertakings would assist the Court in the certification
hearing; even then, the Court may decline ordering the requested
production on the grounds that it would be unduly onerous for the
defendant or that highly detailed evidence review is not
appropriate at the pre-certification stage. [GN]
PRADA USA: Faces Morris TCPA Suit Over Unsolicited Text Messages
----------------------------------------------------------------
MICHELE MORRIS, individually and on behalf of all others similarly
situated, Plaintiff v. PRADA USA CORP., Defendant, Case No.
7:19-cv-10591 (S.D.N.Y., Nov. 15, 2019), alleges that the Defendant
promotes and markets its merchandise, in part, by sending
unsolicited text messages to wireless phone users, in violation of
the Telephone Consumer Protection Act.
In August 2019, the Plaintiff received a text on her cellular
telephone from the Defendant. The Plaintiff's cellular telephone
number is (845) 309-6349. The Text described one of the Defendant's
purses with a link to the Defendant's Web site. The Plaintiff
asserts that the text constituted telemarketing because it
encouraged her to purchase the Defendant's products.
The Defendant sent the Text using an automatic telephone dialing
system (ATDS) without obtaining Ms. Morris's prior express written
consent, the lawsuit says.
Prada USA Corp. was founded in 1993. The Company's line of business
includes the wholesale of men's and boy's apparels.[BN]
The Plaintiff is represented by:
Philip L. Fraietta, Esq.
Joseph I. Marchese, Esq.
BURSOR & FISHER, P.A.
888 Seventh Ave.
New York, NY 10025
Telephone: (646) 837-7142
Facsimile: (212) 989-9163
E-mail: jmarchese@bursor.com
pfraietta@bursor.com
RENO, NV: Female Strippers File Class Action
--------------------------------------------
Courthouse News Service reported that nine women filed a federal
class action against Reno, Nevada, claiming it imposes unfair and
unconstitutional restrictions upon female strippers, such as
licensing fees, background checks and performance limits, but not
upon men.
A copy of the Complaint is available at:
https://is.gd/OSRAiI
RHODE ISLAND: Correa Seeks to Certify Class of R.I. Residents
-------------------------------------------------------------
In the lawsuit entitled CARMEN CORREA, on behalf of herself and all
others similarly situated v. COURTNEY E. HAWKINS, in her official
capacity as Director of the Rhode Island Department of Human
Services, Case No. 1:19-cv-00656-JJM-PAS (D.R.I.), the Plaintiff
seeks an order certifying this class:
All Rhode Island residents who, since May 1, 2019, received
or will in the future receive a Demand Letter for SNAP
Overissuance.
Ms. Correa further asks that she be designated as class
representative and that her counsel be designated as class counsel
for the proposed class.[CC]
The Plaintiff is represented by:
Ellen Saideman, Esq.
LAW OFFICE OF ELLEN SAIDEMAN
7 Henry Drive
Barrington, RI 02806
Telephone: (401) 258-7276
Facsimile: (401) 709-0213
E-mail: esaideman@yahoo.com
- and -
Lynette Labinger, Esq.
128 Dorrance Street, Box 710
Providence, RI 02903
Telephone: (401) 465-9565
E-mail: LL@labingerlaw.com
The Defendant is represented by:
Rebecca Partington, Esq.
RI OFFICE OF THE ATTORNEY GENERAL
150 South Main Street
Providence, RI 02903
Telephone: (401) 274-4400
E-mail: rpartington@riag.ri.gov
RIPPLE: At Risk of Possible Enforcement Actions by Regulators
-------------------------------------------------------------
Dan Saada, writing for The Currency Analytics, reports that Ripple
is at $0.2880 versus the USD. The struggle for a sustained price
trend was seen in oscillation near $0.2940 and $0.2950 levels.
Resistance is seen near $0.2945 on the XRP/USD pair.
Ripple has been facing resistance near $0.3000. XRP started with a
downward move below the $0.3000 support area, moving for a short
term into the bearish zone. The 100 hour SMA showed a close below
the $0.3000 level.
The price has been trending below the $0.2950 support area, and it
tested the support zone at $0.2880. Recent lows were seen near
$0.2889, and the price is currently trending higher.
A major bearish trend line is formed. Resistance is seen near
$0.2945 on the XRP/USD hourly charts. The trend line is coinciding
with the Fibonacci retracement level with the decline from high to
low from $0.2981 to $0.2889.
If the bulls should take over, an upside break is required beyond
the $0.2950 zone. And, Ripple might recover and trade near the
$0.3000 resistance level. The next major resistance is seen at the
$0.3050 and $0.3060 levels.
Primary support is seen in the $0.2900 area. The major support is
seen in the $0.2880 level. If there should be a daily close below
$0.2880, then the price might move towards $0.2850 and $0.2840 in
the short term.
When looking at the chart, it is clear that Ripple has been facing
several hurdles on the upside at $0.2950. There are chances for a
fresh increase beyond the $0.2950 zone, and eventually, the price
will decline towards $0.2840 or even $0.2800. If there is no close
at $0.2880 support area, there is a probability for the price to
increase beyond the $0.2950 zone.
The MACD for XRP/USD is moving back to the bullish area. Major
Support Levels are seen at $0.2900, $0.2880, and $0.2850; and,
Major Resistance Levels are seen at $0.2940, $0.2950 and $0.3000
respectively.
One of the long-running and closely monitored lawsuits versus
ripple is likely to be subject to enforcement by regulators. At
the heart of the dispute, which claims class-action status, there
is a question that is not sorted.
Whether XRP, the cryptocurrency that Ripple periodically sells to
fund its operations, is a security that should have been registered
under U.S. law. If it is, as the plaintiff's complaint argues,
Ripple could be at risk of possible enforcement actions by
regulators.
However, the current suit will not in any way sort this question.
None of them are finding out if Ripple is security any time suit.
Ripple's statement about XRP not being security as it is a currency
will not necessarily hold up. [GN]
ROUNDY'S ILLINOIS: Haugen's Cond. Cert. Bid Partly Granted
----------------------------------------------------------
In the lawsuit captioned James Haugen, et al. v. Roundy's Illinois,
LLC d/b/a Mariano's, Case No. 1:18-cv-07297 (N.D. Ill.), the
Honorable Elaine E. Bucklo granted in part and denied in part the
Plaintiffs' motion for stage−one conditional certification and
notice to putative class members.
Status hearing is set for January 3, 2020, at 9:30 a.m.[CC]
ROYAL CARIBBEAN: Plaintiff Attorneys Get $3.1MM Under Settlement
----------------------------------------------------------------
Dan Churney, writing for Cook County Record, reports that plaintiff
attorneys will collect $3.1 million from the settlement of a class
action suit, alleging a defunct suburban travel agency made illegal
telemarketing calls for cruise ship companies. People who received
the calls would pocket about $22 each.
U.S. District Judge Andrea Wood approved a settlement Oct. 28 in
the class action led by Ohio man Philip Charvat against the cruise
lines Royal Caribbean, Carnival and Norwegian Cruise Line.
Charvat sued the lines and Resort Marketing Group, of Batavia, in
2012, alleging Resort may have made millions of automated
telemarketing calls for the lines, in violation of the U.S.
Telephone Consumer Protection Act. The cruise lines said they had
no knowledge of the calls. Resort is no longer in business,
according to court papers.
Of the $12.5 million settlement, $3.1 million in fees will go to
Charvat's attorneys including Matthew P. McCue, of Natick, Mass.;
and the law firms of Burke Law Offices, of Chicago, and Broderick &
Paronich, of Boston.
The firms agreed to return an additional $1 million in fees to the
settlement fund, to replace some of the $3 million spent winnowing
down the 2.7 million claims submitted. In the end, 274,851 claims
were found valid. Plaintiff's attorneys said so many claims were
received, because news media inaccurately reported claimants could
each get $300, with a top payout of $900.
However, on a pro rata basis, each class member gets on average
$22.17 -- an amount that chafed some of the 31 class members who
objected. These members noted the amount was well below the $500 to
$1,500 per call allowed by statute, but Judge Wood was not
troubled.
"While the average consumer payout of $22.17 is not anywhere the
statutory maximum, it is also not out of line with other approved
TCPA class action settlements. The inability to pay every injured
plaintiff the absolute statutory maximum does not reflect a failure
of the settlement itself," Wood said.
"The settlement still serves the purpose of punishing Cruise
Defendants," who "are still paying the same substantial amount of
($12.5 million)" and the "settlement serves as a deterrent to
potential future defendants who might think twice about violating
the TCPA in an effort to boost business," Wood wrote.
According to the settlement, the maximum possible payout to any
class member is $598.
Wood was also not bothered by objections it was burdensome for
claimants to supply proof, such as phone bills or copy of a phone
book page to show the claimant's connection to the phone called by
Resort. Wood said this requirement was not "terribly substantial."
Charvat asked for $50,000, on top of the amount he receives as a
class member, for pursuing the case. However, Wood found $50,000 to
be "excessive" and would be a "significant outlier" in a Telephone
Consumer Protection Act class action. Wood pointed out such
plaintiffs are typically awarded $5,000 in Chicago federal district
court.
However, Wood concluded Charvat's participation was extensive and
included sitting for a seven-hour deposition.
"Charvat has endured several years of discovery, scrutiny, and
inconvenience in pursuit of this case. Under these circumstances,
the Court believes an incentive award of $25,000 is appropriate,"
Wood said.
The cruise lines have been represented by the firms of Foreman
Friedman, of Miami, and Swanson, Martin & Bell, of Chicago. [GN]
SAMSUNG ELECTRONICS: DeFrank Files Suit in New Jersey
-----------------------------------------------------
A class action lawsuit has been filed against Samsung Electronics
America, Inc. The case is styled as Lisa DeFrank, Hollis Stavn,
Chris Garcia, Mark DiTroia, Carl Gersh, Wendy Dowds, Maria Keene,
Ashley Nuibe, individually and on behalf of all others similarly
situated, Plaintiffs v. Samsung Electronics America, Inc.,
Defendants, Case No. 2:19-cv-21401 (D.N.J., Dec. 16, 2019).
The nature of suit is stated as Contract Product Liability.
Samsung Electronics America, Inc. manufactures electronic products.
The Company offers televisions, digital cameras, cell phones,
storage devices, home appliances, security systems, smartwatches,
and computer products.[BN]
The Plaintiffs are represented by:
Beau D. Hollowell, Esq.
Law Office of Daniel R. Karon
700 St. Clair Avenue, W, Ste. 200
Cleveland, OH 44113
Phone: (216) 622-1851
Fax: (216) 241-8175
- and -
Daniel Richard Karon, Esq.
Karon LLC
700 W. St. Clair Avenue, Suite 200
Cleveland, OH 44113
Phone: (216) 622-1851
Fax: (216) 241-8175
The Defendant is represented by:
Heather MacGregor Hawkins, Esq.
Taft Stettinius & Hollister LLP
425 Walnut Street, Suite 1800
Cincinnati, OH 45202
Phone: (513) 381-2838
Fax: (513) 381-0205
- and -
Kip T Bollin, Esq.
Thompson Hine LLP
3900 Key Center
127 Public Square
Cleveland, OH 44114
Phone: 216) 566-5500
Fax: (216) 566-5800
SAN FRANCISCO, CA: Discrimination Class Action Dismissal Reversed
-----------------------------------------------------------------
Courthouse News Service reported that reversing dismissal, a
California appeals court ruled that a longtime former city employee
can sue San Francisco in a class action involving disability
retirement and age discrimination.
A copy of the Ruling is available at:
https://is.gd/pJRFJ6
SAO PAOLO: Class Action Seeks Injunction to Suspend Auction
-----------------------------------------------------------
Richard Mann, writing for Rio Times Online, reports that a class
action brought by individuals seeks to prevent the pre-salt
mega-auction by the government. The action was brought in the
Federal Court of Sao Paulo, and seeks an injunction to suspend the
bid.
In the action, the plaintiffs allege that the rules are detrimental
to public property and that there is no legal provision for the
admission of new companies in the areas being auctioned. [GN]
SAVOYA LLC: Court Orders Supplemental Briefing in Alabsi Case
-------------------------------------------------------------
In the case, BILLY ALABSI, Plaintiff, v. SAVOYA, LLC, Defendant,
Case No. 18-cv-06510-KAW (N.D. Cal.), Magistrate Judge Kandis A.
Westmore of the U.S. District Court for the Northern District of
California has entered an order regarding supplemental briefing on
the Plaintiff's motion for preliminary approval.
The Magistrate has reviewed the Plaintiff's motion for preliminary
approval, and ordered the parties to provide a joint supplemental
brief regarding some issues. The supplemental briefing was to be
filed no later than Dec. 2, 2019. The hearing on the Plaintiff's
motion for preliminary approval was continued to Dec. 19, 2019 at
1:30 p.m.
In the instant case, the Plaintiff brings employment
misclassification claims, including failure to pay minimum wage and
overtime, failure to reimburse drivers for expenses, failure to
provide meal and rest periods, failure to provide accurate itemized
wage statements, waiting time penalties, and civil penalties
pursuant to the Private Attorney Generals Act ("PAGA"). The
Plaintiff estimates that the unpaid wages (including missed meal
and rest breaks) is $639,000, while the unreimbursed expenses is
$637,000, for a total of $1,312,000.
The Magistrate required further information on how the Plaintiff
calculated the estimated value of these claims, as the Plaintiff
provides no information on his calculations. Thus, the Court is
unable to verify the accuracy of the calculations, and cannot
determine if the settlement does, in fact, fall within the range of
reasonableness.
Additionally, the Plaintiff provides no estimate for the failure to
provide accurate wage statements, waiting time penalties, and civil
penalties pursuant to PAGA. While the Plaintiff contends that a
court may calculate settlement reasonableness without considering
penalties, the Magistrate will require such information to
determine the reasonableness of the settlement.
The parties must explain what the expected costs of the class
action administration will be. The Class Action Notice should also
be updated accordingly.
The parties must also clarify if the $7,500 PAGA penalty goes to
the Labor Workforce Development Agency ("LWDA") alone, or if it is
subject to the Labor Code Section 2699(i), which distributes civil
penalties as 75% to the LWDA and 25% to the aggrieved employees.
The CAFA requires that notice of a settlement be given to the
appropriate government officials. The Magistrate ordered that the
parties should address whether CAFA notice is required and, if so,
when it will be given.
The parties will include information as to the Court-appointed
settlement administrator, and provide contact information for the
settlement administrator. Otherwise, the only contact information
for the settlement administrator, which concerns exclusions from
the class settlement.
As for Paragraph 10(a)(ii) (Attorneys' Fees and Expenses), the
first sentence should be corrected as follows: "Class Counsel will
ask the Court to approve a Fee and Expense Award of $187,500, plus
reimbursement of the reasonable litigation expenses Class Counsel
has incurred."
As for Paragraph 11 (Class Release), the parties will add a plain
language explanation for what claims the class members will be
releasing. It is inadequate to only quote the settlement agreement
language, which, in the case, is difficult for a layperson to
follow.
As for Paragraphs 16 and 17, the Magistrate ordered that Paragraph
16 should be modified to be consistent with the Northern District
of California's Procedural Guidance for Class Action Settlements
regarding objections. Additionally, it is not clear why class
members should be required to mail objections to both the
Plaintiff's and the Defendant's counsel when objections will be
submitted to the Court and filed on the docket. Paragraph 17
should be modified to remove any unnecessary language that is
already contained in Paragraph 16, as modified.
As for Paragraph 21, the Class Notice should be modified so that
the class members may contact the class counsel (and/or the
settlement administrator, if appropriate) regarding the final
approval hearing. Information on the final approval hearing should
also be included on the settlement website.
Finally, Paragraph 23 refers to a website that will contain the
settlement agreement. The website should also include the class
notice, motions for approval and for attorney's fees, and other
important documents in the case (i.e., the operative complaint).
The class notice language should be updated accordingly. Paragraph
23 should also be corrected as follows: "by contacting class
counsel at rchin@bryanschwartzlaw.com, or by accessing the Court
docket in this case, for a fee . . .."
A full-text copy of the Court's Nov. 13, 2019 Order is available at
https://is.gd/kCo3mF from Leagle.com.
Billy Alabsi, on behalf of himself and all others similarly
situated, Plaintiff, represented by Eduard R. Meleshinsky, Bryan
Schwartz Law, Bryan Jeffrey Schwartz -- bryan@bryanschwartzlaw.com
-- Bryan Schwartz Law & Logan McMillan Starr --
logan@bryanschwartzlaw.com -- Bryan Schwartz Law.
Savoya, LLC, Defendant, represented by Lynne C. Hermle --
lchermle@orrick.com -- Orrick, Herrington & Sutcliffe LLP, Carolina
Aicon Garcia -- cgarcia@orrick.com -- Orrick, Herrington and
Sutcliffe, Cortney C. Thomas, Brown Fox PLLC, pro hac vice & Joseph
Charles Liburt -- jliburt@orrick.com -- Orrick, Herrington &
Sutcliffe LLP.
SKYLINE SECURITY: McMillan Sues Over Unsolicited Telephone Calls
----------------------------------------------------------------
MICHAEL P. MCMILLAN, individually and on behalf of all and others
similarly situated, Plaintiff v. SKYLINE SECURITY, MANAGEMENT,
INC., Defendant, Case No. 2:19-cv-01995 (D. Nev., Nov. 15, 2019),
alleges that the Defendant promotes and markets its merchandise, in
part, by placing unsolicited telephone calls to wireless phone
users, in violation of the Telephone Consumer Protection Act.
Beginning in October 2018, the Plaintiff received autodialed calls
on his cellular phone from the Defendant. These calls related to a
debt the Plaintiff had incurred with Skyline for installation of a
Brinks Home Security System. However, the calls continued even
though Skyline had no consent to place the calls in question.
The Defendant employs an automatic telephone dialing system to
transmit its phone calls to Plaintiff, the lawsuit says.
Skyline Security was founded in 2004. The company's line of
business includes monitoring and maintaining security systems
devices such as burglar and fire alarms.[BN]
The Plaintiff is represented by:
David H. Krieger, Esq.
HAINES & KRIEGER, LLC
8985 S. Eastern Avenue, Suite 350
Henderson, NE 89123
Telephone: (702) 880-5554
Facsimile: (702) 9385-5518
E-mail: dkrieger@hainesandkrieger.com
SONIC DRIVE-IN: Small Seeks Minimum Wage Under FLSA for Servers
---------------------------------------------------------------
JODIE SMALL, Individually and on behalf of all others similarly
situated, PLAINTIFF v. SONIC DRIVE-IN OF DOVER, INC., DEFENDANT,
Case No. 4:19-cv-00800-BRW (E.D. Ark., Nov. 15, 2019), seeks to
recover damages from the Defendant's failure to pay the Plaintiff
and other hourly-paid servers a lawful minimum wage compensation
pursuant to the Fair Labor Standards Act and the Arkansas Minimum
Wage Act.
Ms. Small also alleges that the Defendant failed to properly pay
her wages earned prior to her discharge from employment after she
made lawful demand upon the Defendant for payment to which she is
owed.
The Defendant has a team of carhops/skating carhops, who serve
customers food and are known as servers. The Plaintiff and other
servers were paid an hourly rate by the Defendant.
The Plaintiff and other servers spent more than 20% of their time
performing non-tipped duties for Defendant such as opening and
closing the location, preparing food inside, performing side work,
and other non-tipped duties. Because the Plaintiff and other
servers spent more than 20% of their time performing non-tipped
duties for the Defendant, it was required to pay the Plaintiff and
its other servers at least $7.25 per hour for their non-tipped
work, the Plaintiff contends. She asserts that the Defendant paid
her and other servers the same rate--below the applicable minimum
wages--for both tipped work and non-tipped work.
The Defendant owns and operates a full-service "fast-food burger &
fries joint with an old-school feel, including retro drive-in
service."[BN]
The Plaintiff is represented by:
Chris W. Burks, Esq.
Brandon M. Haubert, Esq.
WH LAW PLLC
Riverfront Pl., Suite 745
North Little Rock, AR 72114
Telephone: 501 891-6000
E-mail: chris@whlawoffices.com
brandon@whlawoffices.com
ST. GEORGE LOGISTICS: Faces Class Action Over BIPA Violation
------------------------------------------------------------
Marian Johns, writing for Cook County Record, reports that a former
safety director at St. George Logistics alleges the company
violated the state's Biometric Information Privacy Act (BIPA) by
requiring employees and temporary staff to scan their fingerprints
to verify their identity when punching the business' time clock
system.
Candice Garcia, on behalf of herself and all other persons
similarly situated, filed a class action suit Oct. 16 in Cook
County Circuit Court against Apple Zebra CFS LLC and St. George
Warehouse of Illinois Inc., both doing business as St. George
Logistics, alleging the company violated BIPA when it began using
the biometric time clock system around 2016.
". . . there's equally no question that the defendants placed
workers at risk by using their biometric identifiers to 'punch the
clock,'" the suit states. "Defendants collected, stored, used, and
transferred the unique biometric fingerprint identifiers, or
information derived from those identifiers, of the plaintiff and
others similarly situated without following the detailed
requirements of the Biometric Information Privacy Act."
The lawsuit accuses the company of not securing authorization from
workers before requiring them to scan their fingerprints to operate
the punch clock. The lawsuit also accuses the company of not
providing written notices concerning the fingerprint scans, as
allegedly required by the BIPA law.
Garcia, who worked as Apple Zebra's safety director in Elk Grove
Village from October 2012 to March 2018, also alleges her
fingerprint information was "disseminated and disclosed" to the
timekeeping vendor without her consent and as a condition of
employment.
The plaintiff and the class, which includes more than 50 members,
according to the suit, seek damages of $1,000-$5,000 per violation,
as allowed by BIPA, plus attorney fees and other costs.
Garcia is represented by attorneys Douglas Werman, Maureen Salas,
Zachary Flowerree, Sarah Arendt and Jacqueline Villanueva of Werman
Salas PC in Chicago.
Cook County Circuit Court case number 2019CH12008. [GN]
STOVER DIAGNOSTICS: Jones Moves to Certify Phlebotomists Class
--------------------------------------------------------------
In the lawsuit styled AMBER JONES and VICTORIA LUGO, on behalf of
themselves and all others similarly situated v. STOVER DIAGNOSTICS
LABORATORIES, INC., STOVER MEDICAL LOGISTICS, INC., and STOVER
MEDICAL PHYSICIAN SERVICES, LLC, Case No. 3:19-cv-00740 (M.D.
Tenn.), the parties, as set forth in the Parties' Stipulation
Regarding Conditional Certification, jointly move the Court to
enter an order:
(A) conditionally certifying this action as a collective
action with the class of potential opt-ins defined as
follows in accordance with the Parties' Stipulation:
All mobile phlebotomists who, at any time since [3 years
prior to the date this Stipulation is filed with the
Court], have resided in Tennessee and worked for
Defendants;
(B) requiring Defendants to provide Plaintiffs' Counsel with
the name, last-known mailing address, and last-known
e-mail address(es) for each member of the class within
fourteen (14) days from an order from this Court granting
this Motion;
(C) requiring the Plaintiffs' Counsel to mail and e-mail the
Notices attached to this Joint Motion as Exhibit A and B,
respectively, to each member of the class within seven (7)
days from receipt of the potential class members' contact
information from the Defendant; and
(D) requiring the Plaintiffs' Counsel to file with the Court
upon receipt, and no later than twenty-one (21) days after
the close of the Notice Period, all signed consents to
join that are timely postmarked or submitted
electronically to the Plaintiffs' Counsel within the
Notice Period.
On November 13, 2019, the Plaintiffs moved the Court for
conditional certification and the issuance of Court-supervised
notice. The Parties' Stipulation and the submission of this Joint
Motion resolves the Plaintiffs' Motion for Conditional
Certification. Accordingly, following the filing of this Joint
Motion, the Plaintiffs will file a notice of withdrawal of their
Motion for Conditional Certification.
Contemporaneous with the filing of this Joint Motion, the Parties
filed with the Court the Stipulation. Pursuant to the Stipulation,
the parties agree that this action should be conditionally
certified as a collective action under the Fair Labor Standards
Act.[CC]
The Plaintiffs are represented by:
David W. Garrison, Esq.
Joshua A. Frank, Esq.
BARRETT JOHNSTON MARTIN & GARRISON, LLC
Philips Plaza
414 Union Street, Suite 900
Nashville, TN 37219
Telephone: (615) 244-2202
Facsimile: (615) 252-3798
E-mail: dgarrison@barrettjohnston.com
jfrank@barrettjohnston.com
- and -
Emily Alcorn, Esq.
GILBERT MCWHERTER SCOTT BOBBITT, PLC
341 Cool Springs Blvd., Suite 230
Franklin, TN 37067
Telephone: (615) 354-1144
E-mail: ealcorn@gilbertfirm.com
The Defendants are represented by:
Andrew Gardella, Esq.
MARTIN, TATE, MORROW & MARSTON, P.C.
315 Deaderick Street, Suite 1550
Nashville, TN 37238
Telephone: (615) 627-0668
Facsimile: (615) 627-0669
E-mail: agardella@martintate.com
- and -
David Wade, Esq.
Andrew Gardella, Esq.
MARTIN, TATE, MORROW & MARSTON, P.C.
315 Deaderick Street, Suite 1550
Nashville, TN 37238
Telephone: (615) 627-0668
Facsimile: (615) 627-0669
E-mail: dwade@martintate.com
agardella@martintate.com
SUR LA TABLE: Gift Cards Not Accessible to Blind, Calcano Claims
----------------------------------------------------------------
MARCOS CALCANO, ON BEHALF OF HIMSELF AND ALL OTHER PERSONS
SIMILARLY SITUATED, Plaintiff v. SUR LA TABLE, INC., Defendant,
Case No. 1:19-cv-10598 (S.D.N.Y., Nov. 15, 2019), arises from the
Defendant's failure to sell store gift cards to consumers that
contain writing in Braille and to be fully accessible to and
independently usable by the Plaintiff and other blind or
visually-impaired people.
The Defendant's denial of full and equal access to its store gift
cards, and, therefore, denial of its products and services offered
thereby and in conjunction with its physical locations, is a
violation of his rights under the Americans with Disabilities Act
("ADA"), the Plaintiff contends. He adds that because the
Defendant's store gift cards are not equally accessible to blind
and visually-impaired consumers, it violates the ADA.
Store Gift Card is an electronic promise, plastic card, or other
device that is redeemable at a single merchant or an affiliated
group of merchants that share the same name, mark or logo.
The Plaintiff is a visually-impaired and legally blind person, who
requires Braille, which is a tactile writing system, to read
written material, including books, signs, store gift cards, credit
cards, etc. The 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.
Sur La Table, Inc. is a privately held retail company based in
Seattle, Washington, that sells kitchenware products, including
cookware, cutlery, cooks' tools, small electrics, tabletop and
linens, bakeware, glassware and bar, housewares, food and
outdoor.[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
TENNESSEE: Prisoners Suit v. Dept. of Correction Dismissed
----------------------------------------------------------
In the case, CHRISTOPHER ADAMS, BRUCE SMILEY, WARREN DAVIS, JAMES
SPANN, GARY SEELEY, CHAD BELL, ROY RODGERS, JOHN SAULSBERRY, JOSEPH
OVERMAN, RICHARD CALFEE, RONALD HAYES, BARRY WADDELL, and CARLOS
AGUILAR, Plaintiffs, v. TONY PARKER and LEE DODSON, Defendants,
Case No. 1:19-CV-296-HSM-SKL (E.D. Tenn.), Judge Harry S. Mattice,
Jr. of the U.S. District Court for the Eastern District of
Tennessee, Chattanooga, denied the Plaintiffs' motions to appoint
counsel and to certify class.
The Plaintiffs, who all prisoners of the Tennessee Department of
Correction ("TDOC") currently housed in the Bledsoe County
Correctional Complex, have filed a verified class action complaint
for declaratory and injunctive relief against the Defendants
arising out of a TDOC policy that requires all inmates to wear
plastic color-coded wristbands with a metal dual grip fastener to
prevent inmates from entering parts of the jail facility that they
are not authorized to enter. In their complaint, they allege that
TDOC has implemented a policy under which every inmate must wear a
colored wristband fitted snugly to his wrist for security purposes
which violates their Eighth Amendment right to be free from cruel
and unusual punishment because it exposes them to foodborne
illnesses, places them in imminent danger of contracting bacterial
and viral infections, causes abrasions and puts them at risk of
inflicting abrasions on others, and puts inmates working certain
jobs at risk of physical injury as a result of the wristband
snagging on machinery and/or carrying an electronic charge through
the metal clasp.
Before the Court are the Plaintiffs' motions to appoint counsel and
to certify class. They have paid the filing fee.
Judge Mattice addresses the Plaintiffs' motions before screening
the complaint. As for the motion to appoint counsel, he finds that
the acse is a non-complex Section 1983 case arising out of a TDOC
policy requiring inmates to wear plastic wristbands. It is
apparent from their filings that the Plaintiffs are capable of
adequately presenting their legal arguments. Thus, after
considering the relevant factors, he finds that the Plaintiffs are
not entitled to appointment of counsel. Accordingly, he will deny
the Plaintiffs' motion to appoint counsel.
As for the motion to certify class, the Judge holds that it is well
established that pro se litigants are inappropriate representatives
of the interests of others. As he has determined that the
Plaintiffs are not entitled to appointment of counsel in the case,
he will likewise deny their motion for class certification.
Having screened the complaint, the Judge finds that the Plaintiffs
have failed to set forth a plausible claim that the TDOC policy
requiring inmates to wear wristbands violates the Eighth Amendment.
Even accepting Plaintiffs' allegations that the wristbands cannot
be fully washed underneath and therefore pose some risk of passing
on foodborne pathogens, germs, or other illnesses, however, nothing
in the complaint allows the Court to plausibly infer that any such
risk is so grave that it violates society's contemporary standards
of decency. Likewise, Plaintiffs have not established that the
wristbands create a risk of physical injury that is so grave that
it violates contemporary standards of decency based upon the
allegations that the wristbands have caused inmates and persons
with whom inmates interact to incur abrasions.
Further, while the Plaintiffs allege that tje other inmate class
members who work certain jobs may be exposed to a higher risk of
injury due to wearing the wristbands because of their proximity to
live electrical circuits and/or machinery that could snag the
wristband, the Judge has declined to certify the lawsuit as a class
action, and nothing in the complaint allows him to plausibly infer
that any Plaintiff is exposed to such a risk. As the Plaintiffs
lack standing to assert the constitutional rights of other
prisoners, the Judge will not address whether these assertions
state a claim upon which relief may be granted under Section 1983.
For the reasons set forth, Judge Mattice denied the Plaintiffs'
motions to appoint counsel and to certify class. Even liberally
construing the complaint in favor of the Plaintiffs, it fails to
state a claim upon which relief may be granted under Section 1983.
Accordingly, the Judge dismissed the action will pursuant to 28
U.S.C. Sections 1915(e)(2)(B) and 1915A. The Judge certified that
any appeal from the action would not be taken in good faith and
would be totally frivolous. An appropriate judgment order will be
entered.
A full-text copy of the Court's Nov. 27, 2019 Memorandum Opinion is
available at https://is.gd/6HZiwg from Leagle.com.
Christopher Adams, Plaintiff, pro se.
Bruce A. Smiley, Plaintiff, pro se.
Warren Davis, Plaintiff, pro se.
James Spann, Plaintiff, pro se.
Gary Seeley, Plaintiff, pro se.
Chad Bell, Plaintiff, pro se.
Roy Rodgers, Plaintiff, pro se.
John Saulsberry, Plaintiff, pro se.
Joseph Overman, Plaintiff, pro se.
Richard Calfee, Plaintiff, pro se.
Ronald C. Hayes, Plaintiff, pro se.
Barry Waddell, Plaintiff, pro se.
Carlos Aguilar, Plaintiff, pro se.
TESARO INC: Court Dismisses Amended LSI Securities Fraud Suit
-------------------------------------------------------------
In the case, LSI DESIGN AND INTEGRATION CORP., Individually and On
Behalf of All Others Similarly Situated, Plaintiff, v. TESARO,
INC., LEON O. MOULDER, JR., and TIMOTHY R. PEARSON, Defendants,
Civil No. 18-cv-12352-LTS (D. Mass.), Judge Leo T. Sorokin of the
U.S. District Court for the District of Massachusetts allowed the
Defendants' Joint Motion to Dismiss LSI's Amended Complaint.
The class action case, brought by and on behalf of Lead Plaintiff
LSI and the other similarly situated holders of common stock of
Defendant Tesaro, alleges that Tesaro and two of its officers,
Defendants Moulder and Pearson, made materially false statements
that misled investors in violation of Section 10(b) of the
Securities Exchange Act, and Securities and Exchange Commission
Rule 10b-5 promulgated thereunder, as well as Section 20(a) of the
Exchange Act.
Tesaro was an oncology-focused biopharmaceutical company that
identified, acquired, developed, and commercialized cancer
therapies and oncology supportive care products in the United
States and Europe. At the time of the class period -- Nov.4, 2016
to Nov. 14, 2016 -- Tesaro had commercialized only one U.S. Food
and Drug Administration-approved drug: an oral formulation of a
drug it called Varubi. Intended to prevent nausea and vomiting
associated with chemotherapy administered to treat cancer patients,
Varubi generated $5.174 million in sales for Tesaro during 2016.
In addition to its Varubi sales, Tesaro relied on $1.4 billion in
proceeds from public offerings and private placements of common
stock and convertible preferred stock, including $408.9 million
raised from a secondary offering of common stock in July 2016.
However, while Tesaro experienced an influx in investor support in
2016, LSI contends that Varubi sales were not as robust as the
company hoped. According to one confidential witness who was
responsible for sales of Varubi in California during the class
period, Tesaro missed its national sales goal for Varubi sales in
both the second and third quarters of 2016, selling 53% and 67% of
its targeted sales, respectively. These internal shortcomings,
according to a second confidential witness, were discussed by
Tesaro corporate leadership on a monthly basis. This second
confidential witness also avers that Tesaro leadership, including
Defendants Moulder and Pearson, never expected the oral formulation
of Varubi to drive Tesaro's revenue," given that Varubi sales had
not matched the company's internal goals.
Against this backdrop, Tesaro and its leadership made three
statements that LSI claims were materially false and misleading.
First, on Nov. 4, 2016, Tesaro filed a Form 10-Q quarterly report
with the SEC,4 which included statements about Tesaro's financial
condition. Second, on Nov. 8, 2016, Defendant Moulder gave
additional remarks about Tesaro's financial condition at the Credit
Suisse Annual Healthcare Conference in Scottsdale, Arizona.
Finally, at the Credit Suisse conference, Defendant Moulder made
the following statement about the prospect of scaling Tesaro's
business in Europe.
Less than a week after Defendant Moulder's statements, on Nov. 14,
2016, Tesaro announced in a press release that it would commence an
underwritten public offering of 1.75 million shares of its common
stock and filed a prospectus for said offering with the SEC. The
next day, after a national biotech columnist reported that there
was "light demand" for Tesaro's stock offering, Tesaro announced in
a second press release that it had priced its shares of its common
stock at an offering price of $135 per share, about 9% lower than
the closing price of Tesaro stock on the previous day. In the wake
of these announcements, Tesaro's share price continued to decline,
closing at $126.65 per share on Nov. 16, 2016. Given the
precipitous decline in the market value of Tesaro's securities, LSI
avers that the class members "suffered significant losses."
First, LSI claims the Defendants violated Section 10(b) of the
Exchange Act and SEC Rule 10b-5 by making misleading statements in
furtherance of a scheme to deceive the investing public and
artificially inflate the market price of Tesaro. Second, LSI
contends that Defendants Moulder and Pearson violated Section 20(a)
of the Exchange Act because they exercised control over Tesaro
during the time that Tesaro and its officers allegedly violated
Section 10(b).
Count I of the Amended Complaint alleges violations of SEC Rule
10b-5, promulgated pursuant to Section 10(b) of the Exchange Act.
Count II of the Amended Complaint alleges violations of Section
20(a) of the Exchange Act.
The Defendants filed a joint Motion to Dismiss LSI's Amended
Complaint.
Judge Sorokin first considers the three statements that LSI alleges
are false or misleading. Then, he considers whether LSI's Amended
Complaint alleges facts that raise a "strong inference" of
scienter, as demanded by the PSLRA's "rigorous pleading
standards."
He concludes that the Amended Complaint does not plausibly allege
that the Form 10-Q statement is false and misleading. On its face,
the statement makes no representations about whether Tesaro will
conduct additional stock offerings over the next 12 months. Far
from "assuring investors" that there would be no additional stock
offerings in the next 12 months, the plain language of the Form
10-Q placed investors on notice that Tesaro would continue -- like
"many early-stage biotech companies" -- to fund its operations and
commercialization efforts through public offerings.
LSI's two confidential witnesses provide no meaningful assistance.
While the confidential witnesses may provide plausible allegations
that Tesaro missed internal sales goals, the Amended Complaint does
not explain the connection between these internal targets, Tesaro's
plans for procuring additional capital through public offerings,
and its overall financial health. Indeed here is no suggestion at
all -- from either of the confidential witnesses or elsewhere in
the Amended Complaint -- that Tesaro's existing cash and cash
equivalents, plus its Varbui sales, would be insufficient to fund
the company's operations. Quite the contrary: LSI concedes that
Tesaro's ending cash position in 2016 was sufficient to fund its
operations for 2017, even without the funds from the November 2016
offering. Thus, LSI's Amended Complaint does not state reasons why
Tesaro's Form 10-Q statement is misleading.
LSI's Amended Complaint similarly fails to plead falsity with
respect to statements made by Tesaro officers at the Nov. 8, 2016
Credit Suisse Healthcare Conference. First, the Judge holds that
Defendant Moulder's statement that Tesaro was well positioned to
take it forward is precisely the type of statement of corporate
optimism that courts routinely deem immaterial as a matter of law.
Additionally, Defendant Moulder's statement that "Varubi itself can
pretty much cover, over time all of our expenses" cannot support
LSI's claims. LSI's allegations provide no evidence to support its
claim that missed internal sales goals for the North American
market placed Tesaro officers on notice that Varubi could not
pretty much cover over time all of the company's expenses as it
scaled its business in Europe. Thus, none of the statements
highlighted in LSI's Amended Complaint are false or misleading.
Finally, the Judge holds that the LSI offers no facts that present
a "strong inference" that Tesaro or its officers acted with a
fraudulent intent. And a countervailing inference -- that Tesaro
believed that statements about the sufficiency of its cash and cash
equivalents were accurate and that those statements were not
intended to foreclose the possibility of an imminent second public
offering -- is far more cogent and compelling than LSI's inference
of fraud and deceit. Thus, even drawing all reasonable inferences
in LSI's favor, its Amended Complaint has not pled the requisite
mental state to survive Tesaro's motion to dismiss.
For the foregoing reasons, Judge Sorokin allowed Tesaro's motion to
dismiss both counts of the Amended Complaint.
A full-text copy of the Court's Nov. 13, 2019 Order is available at
https://is.gd/5FO1jq from Leagle.com.
LSI Design and Integration Corp., Individually and On Behalf of All
Others Similarly Situated Lead Plaintiff, Plaintiff, represented by
Jeremy A. Lieberman -- jalieberman@pomlaw.com -- Pomerantz LLP, pro
hac vice, Omar Jafri, Pomerantz LLP, pro hac vice, Patrick V.
Dahlstrom, Pomerantz LLP, pro hac vice & Daryl DeValerio Andrews --
daryl@andrewsdevalerio.com -- Andrews DeValerio.
Tesaro Inc., Leon O. Moulder, Jr. & Timothy R. Pearson, Defendants,
represented by Justin P. O'Brien -- justin.obrien@hoganlovells.com
-- Hogan Lovells US LLP, Scott R. Haiber --
scott.haiber@hoganlovells.com -- Hogan Lovells US LLP, pro hac vice
& Steven F. Barley steve.barley@hoganlovells.com -- Hogan Lovells
US LLP, pro hac vice.
THIRD CENTURY: Rivera Seeks Overtime Pay for Maintenance Laborers
-----------------------------------------------------------------
EINAR RIVERA, and all others similarly situated under 29 U.S.C.
section 216(b), Plaintiff v. THIRD CENTURY DEVELOPMENT CORPORATION,
d/b/a Cherry Village Apartments, a Florida corporation, BETTY D
WALKER, individually, Defendants, Case No. 1:19-cv-24744-XXXX (S.D.
Fla., Nov. 15, 2019), seeks overtime compensation under the Fair
Labor Standards Act of 1938.
Cherry Village has employed the Plaintiff as a maintenance laborer
for 17 years. The Plaintiff is a non-exempt employee under the
FLSA, entitled to overtime compensation at time and one half of his
regular rate.
Throughout Plaintiff's employment with Cherry Village, the
Plaintiff has routinely worked in excess of 40 hours per week,
according to the complaint. Specifically, the Plaintiff works an
average of 5 hours of overtime per week. The Plaintiff worked after
hours, including being on call at all hours of the night. The
Plaintiff often worked on weekends but was not compensated for any
overtime hours, the lawsuit says.
Cherry Village is a 147-unit affordable housing community in
Homestead, Florida.[BN]
The Plaintiff is represented by:
Henry Hernandez, Esq.
LAW OFFICE OF HENRY HERNANDEZ, P.A.
2655 S. Le Jeune Road, Suite 802
Coral Gables, FL 33134
Telephone: 305 771 3374
E-mail: Henry@HHLAWFLORIDA.com
- and -
Monica Espino, Esq.
ESPINO LAW
2655 S. Le Jeune Road, Suite 802
Coral Gables, FL 33134
E-mail: me@espino-law.com
Telephone: 305 704 3172
THOR MOTOR: Court Dismisses Hayes Labor Suit with Leave to Amend
----------------------------------------------------------------
Judge Damon R. Leichty of the U.S. District Court for the Northern
District of Indiana, South Bend Division, dismissed the case,
JENNIFER HAYES, on behalf of themselves and all other similarly
situated, Plaintiff, v. THOR MOTOR COACH, INC., Defendant, Cause
No. 3:19-CV-00375 DRL-MGG (N.D. Ind.), with leave to amend.
Thor is a motorhome manufacturing company that has employed
hundreds of non-exempt manufacturing employees during the last
three years. Ms. Hayes began working for Thor in its Bristol,
Indiana plant as a manufacturing employee in March 2015. She was
employed as a non-exempt employee who regularly worked in excess of
40 hours per workweek. She voluntarily resigned from her position
in December 2017.
In her complaint, Ms. Hayes alleges that Thor violated the Fair
Labor Standards Act and Indiana state law by failing to pay her and
the putative class members overtime compensation equal to one and
one-half of their lawfully calculated regular rates for all hours
worked over 40 in a workweek; and unlawfully deducting her and
putative class members' overtime pay by subjecting them to a
"Purchase," "Drug Test" and/or "Sales Tax Purchase" kickback
deduction.
Proceeding forward, Ms. Hayes requested that the case be
conditionally certified as a collective action under 29 U.S.C.
Section 216(b), and certified as a class action under Fed. R. Civ.
P. 23(b)(3). In response, Thor moved to dismiss Ms. Hayes' claims
under Fed. R. Civ. P. 12(b)(6) or alternatively to strike her class
and collective action allegations. On Aug. 20, 2019, the court
issued an order detailing a plan for the parties to conduct limited
discovery pending a ruling on the motion to dismiss.
The matter presents three related issues: (1) whether Ms. Jennifer
Hayes has sufficiently pleaded a plausible claim under the FLSA
against Tho; (2) whether Ms. Hayes has sufficiently pleaded a
plausible claim under Indiana state law, and (3) if so, whether the
action should proceed as a collective action under the FLSA, a
class action under Fed. R. Civ. P. 23, or a combination of both.
Judge Leichty finds that Ms. Hayes' complaint is deficient under
both the FLSA-specific pleading requirements, using the
per-workweek measure, and under the federal pleading standards
within the Bell Atl. Corp. v. Twombly and Ashcroft v. Iqbal
tradition. Nowhere in Ms. Hayes complaint does she allege regular
rate of pay, piece-rate pay, or average total hours. Conclusory
allegations of her sort are insufficient under federal pleading
standards.
Ms. Hayes fails to even plead those minimal details, so she has
failed to state a plausible claim under the FLSA. Because the
Court has allowed the parties to conduct limited discovery, Ms.
Hayes may now have enough details to state a plausible claim under
the FLSA; until then, her complaint must be dismissed.
With the federal claim dismissed, the state law claims cannot
remain in federal court at this early stage. It is the
well-established law of the circuit that the usual practice is to
dismiss without prejudice state supplemental claims whenever all
federal claims have been dismissed prior to trial.
For these reasons, Judge Leichty granted Thor's motion to dismiss
under Fed. R. Civ. P. 12(b)(6), and dismissed the case, with leave
granted to amend by Dec. 20, 2019. The Judge denied as moot the
request, made within the complaint, for a collective or class
action.
A full-text copy of the Court's Nov. 27, 2019 Opinion & Order is
available at https://is.gd/xmNODR from Leagle.com.
Jennifer Hayes, on behalf of themselves and all others similarly
situated, Plaintiff, represented by Shannon M. Draher, Nilges
Draher LLC, Hans A. Nilges, Nilges Draher LLC & Robert P. Kondras,
Jr., Hassler Kondras & Miller LLP.
Thor Motor Coach Inc, Defendant, represented by Devra T. Hake --
dhake@southbank.legal -- SouthBank Legal: LaDue Curran & Kuehn, R.
John Kuehn, III -- jkuehn@southbank.legal -- SouthBank Legal: LaDue
Curran & Kuehn & Stephen M. Judge -- sjudge@southbank.legal --
SouthBank Legal: LaDue Curran & Kuehn.
TOYOTA: Faces Class Action Over Valve Spring Recall Repair
----------------------------------------------------------
Chris Tsui, writing for The Drive, reports that back in March, The
Drive broke the story about dozens of 2013 Scion FR-S and Subaru
BRZ owners who reported experiencing catastrophic engine failure
shortly after a valve spring recall repair largely due to the fact
that -- full disclosure -- I was one of those owners.
Now, Toyota and Subaru are facing a class-action lawsuit that
claims the recall fix is, as we originally theorized, causing more
problems than it's preventing, increasing the risk of engine
failure and, in some cases, causing cars to dangerously catch fire
-- just like this FR-S in California did 2,000 miles post-recall.
The issue apparently extends beyond the Toyobaru twins as the 2013
Subaru XV Crosstrek and the Subaru Impreza from model years 2012 to
2014 are named in the lawsuit as well.
"Unfortunately, and upon information and belief, the Recall Work is
not remedying the hazard, but instead, is increasing the risk of
valve spring and/or other engine malfunction, is causing
catastrophic engine damage to the Class Vehicles, and is increasing
the risk of vehicle crashes caused by vehicles suddenly stalling
while being driven," reads the lawsuit via Top Class Actions.
In late 2018, Subaru issued a recall on a total of 400,000 vehicles
over valve springs that are apparently at risk of fracturing,
causing engines to stall. Since we first reported on the snafu, the
Center for Auto Safety has called on the NHTSA, Toyota, and Subaru
to put a stop to the repairs until they figure out what's going on.
Meanwhile, an FT86Club-curated spreadsheet of post-recall engine
failures has ballooned to 75 cars (62 Scions and 13 Subarus). At a
glance, 75 reported failures out of the hundreds of thousands of
recalled cars doesn't actually sound that bad, but it's important
to note that the entire recall campaign was triggered by just 11
valve spring failures over a three-year period.
Outside of FT86Club, many other owners have come forward with
stories on Facebook groups, Reddit, and the comment sections of
pretty much every one of The Drive's own stories on the
situation—including a detailed account from one Cristian Nunez,
the class-action lawsuit's lead plaintiff.
According to the suit, Nunez allegedly brought his 2013 Scion FR-S
in for the recall in August 2019. The car's engine died and left
him on the side of the road a week later. The Toyota dealership in
question later found metal shavings in the engine and claimed that
Nunez had done something to cause them "when performing prior
engine work himself."
"This was in spite of the fact that (1) Plaintiff informed the
technicians that he did not, and had not, performed any work on his
own vehicle; and (2) these metal shavings were not present when the
same dealership performed the Recall Work on Plaintiff's car one
week prior to these events," the lawsuit asserts.
The dealership then allegedly explained to Nunez that he was on the
hook for a $6,500 repair before telling the 20-year-old Scion owner
that he would have to cough up $1,500 to fly a Toyota rep out for
inspection or have the car towed and pick up the tab for the loaner
vehicle he was given.
Helmed by Carlson Lynch, the lawsuit calls on U.S. owners or
lessees of the 2013 Scion FR-S, 2013 Subaru BRZ, 2012-2014 Subaru
Impreza, and 2013 Subaru XV Crosstrek who underwent the valve
spring recall and suffered engine failure afterward to contact the
law firm here.
When reached for comment, a Toyota spokesperson told The Drive,
"The safety and security of our customers are top priorities. We
will respond to the allegations in this lawsuit in the appropriate
forum." Meanwhile, a Subaru rep replied, "We just received the
lawsuit and can't comment on it at the moment."[GN]
UNITED PARCEL: Sims Labor Class Suit Removed to N.D. California
---------------------------------------------------------------
United Parcel Service, Inc. removes the case captioned as THOMAS
SIMS II on behalf of himself and others similarly situated,
Plaintiff v. UNITED PARCEL SERVICE, INC., a Delaware corporation;
UPS, a business entity unknown; and DOES 1 to 100, Inclusive,
Defendants, Case No. RG19035659 (Filed Sept. 16, 2019), from the
Superior Court of the State of California for the County of Alameda
to the U.S. District Court for the Northern District of California
on Nov. 15, 2019.
The Northern District of California Court Clerk assigned Case No.
4:19-cv-07551 to the proceeding.
The complaint alleges that the Defendants failed to pay minimum
wage or overtime, failed to provide meal periods and and rest
breaks, and failed to provide complete and accurate wage statements
in violation of California Labor Code.[BN]
The Defendants are represented by:
Elizabeth A. brown, Esq.
Jennifer Svanfeldt, Esq.
Matthew W. Morris, Esq.
Carlos I. Martinez-Garcia, Esq.
GBG LLP
601 Montgomery Street, Suite 1150
San Francisco, CA 94111
Telephone: (415) 603-5000
Facsimile: (415) 840-7210
E-mail:: lisabrown@gbgllp.com
jensvanfeldt@gbgllp.com
mattmorris@gbgllp.com
carlosmartinez@gbgllp.com
UNITED STATES: Calhoun Files Suit in D. Columbia
------------------------------------------------
A class action lawsuit has been filed against officers of the
United States. The case is styled as Walton Calhoun, John Doe,
NATIONAL VETERANS LEGAL SERVICES PROGRAM, on behalf of themselves
and all other individuals similarly situated, Plaintiffs v. RYAN D.
MCCARTHY in his official capacity of Secretary of the Army, BARBARA
BARRETT in her official capacity as Secretary of the Air Force,
THOMAS MODLY in his official capacity as Acting Secretary of the
Navy, Defendants, Case No. 1:19-cv-03744-EGS (D.D.C., Dec. 16,
2019).
The nature of suit is stated as Administrative Procedure Act/Review
or Appeal of Agency Decision.
The U.S. is a country of 50 states covering a vast swath of North
America, with Alaska in the northwest and Hawaii extending the
nation’s presence into the Pacific Ocean.[BN]
The Plaintiff is represented by:
John A. Jurata, Jr., Esq.
ORRICK, HERRINGTON & SUTCLIFFE, LLP
1152 15th Street, NW
Washington, DC 20005
Phone: (202) 339-8504
Fax: (202) 339-8500
Email: jjurata@orrick.com
UNIVERSITY OF CALIFORNIA: Riffel Suit Transferred to N.D. Calif.
----------------------------------------------------------------
The class action lawsuit styled as Valentina Riffel, as an
individual, on behalf of herself and all persons similarly
situated, Plaintiff v. The Regents of the University of California,
a California nonprofit corporation, and Does 1 through 10,
Defendants, Case No. 2:19-cv-08286, was transferred from the U.S.
District Court for the Central District of the California to the
U.S. District Court for the Northern District of California
(Oakland) on Nov. 15, 2019.
The Northern District of California Court Clerk assigned Case No.
4:19-cv-07489-KAW to the proceeding. The case is assigned to the
Hon. Judge Kandis A. Westmore.
The suit alleges violation of fraud related laws.
The Regents of the University of California is the governing board
of the University of California. The board has 26 voting members.
The California Constitution grants broad institutional autonomy,
with limited exceptions, to the Regents.[BN]
The Plaintiff is represented by:
Katherine J. Odenbreit, Esq.
Kevin Mahoney, Esq.
Daniel J Hyun, Esq.
John Adam Young, Esq.
Roger E. Haag, Esq.
MAHONEY LAW GROUP APC
249 East Ocean Boulevard, Suite 814
Long Beach, CA 90802
Telephone: (562) 590-5550
Facsimile: (562) 590-8400
E-mail: kodenbreit@mahoney-law.net
kmahoney@mahoney-law.net
dhuyn@mahoney-law.net
jyoung@mahoney-law.net
rhaag@mahoney-law.net
The Regents of the University of California is represented by:
Hakeem Salib Rizk, Esq.
Jeffrey M. Davidson, Esq.
COVINGTON AND BURLING LLP
Salesforce Tower
415 Mission Street, Suite 5400
San Francisco, CA 94105
Telephone: (415) 591-7019
E-mail: hrizk@cov.com
jdavidson@cov.com
- and -
William L. Stern, Esq.
ATTORNEY AT LAW
Rm. 202 Post Office Bldg.
13Th & Alice Streets
Oakland, CA
VISKASE COMPANIES: Thomas Seeks Overtime Pay Under FLSA and AMWA
----------------------------------------------------------------
JAMIE THOMAS and ARGUSTER WILLIAMS, Individually and on Behalf of
All Others Similarly Situated, PLAINTIFFS v. VISKASE COMPANIES,
INC., DEFENDANT, Case No. 3:19-cv-00330-DPM (E.D. Ark., Nov. 15,
2019), seeks to recover lawful overtime compensation for hours
worked in excess of 40 hours per week under the Fair Labor
Standards Act and the Arkansas Minimum Wage Act.
Mr. Thomas was employed by the Defendant as an hourly-paid employee
from October 2013 until April 2019. Mr. Williams was employed by
the Defendant from January 1978 until February 2019. The
Defendant's Shift Supervisors, including Plaintiff Williams, were
classic manual laborers and production employees, working with
machinery and equipment to produce the Defendant's products in a
factory setting.
The Defendant is a leading supplier of plastic, cellulose, and
fibrous film and packaging to the food service industry around the
world. The Defendant operates multiple manufacturing facilities
worldwide, including a facility in Arkansas, and has one corporate
headquarters that centralizes all pay, time and human resource
policies so that they are the same across its facilities.[BN]
The Plaintiffs are represented by:
Sean Short, Esq.
Josh Sanford , Esq
SANFORD LAW FIRM, PLLC
One Financial Center
650 South Shackleford, Suite 411
Little Rock, AR 72211
Telephone: 501 221-0088
Facsimile:·888 787 2040
WAL-MART: Faces Class Action Over Great Value LED Light Bulbs
-------------------------------------------------------------
Courthouse News Service reported that a federal class action
accuses Wal-Mart of selling Great Value-brand LED light bulbs with
the Energy-Star logo though they do not meet Energy-Star efficiency
standards.
A copy of the Complaint is available at:
https://is.gd/55ySAA
YUNJI INC: Faces Van Hoomissen Suit Over Decline in IPO Price
-------------------------------------------------------------
MATTHEW VAN HOOMISSEN, Individually and On Behalf of All Others
Similarly Situated, Plaintiff v. YUNJI INC., SHANGLUE XIAO, CHEN
CHEN, HUAN HAO, QINGRONG KONG, YANHUA SUN, WEI YING, MORGAN STANLEY
& CO. LLC, CREDIT SUISSE SECURITIES (USA) LLC, J.P. MORGAN
SECURITIES LLC, CHINA INTERNATIONAL CAPITAL CORPORATION HONG KONG
SECURITIES LIMITED, AND TOP CAPITAL PARTNERS LIMITED, Defendants,
Case No. 1:19-cv-06479 (E.D.N.Y., Nov. 15, 2019), seeks to recover
compensable damages caused by the Defendants' violations of the
Securities Act of 1933.
The lawsuit is a securities class action brought on behalf of
persons, who purchased or otherwise acquired Yunji securities,
including its American Depository Shares (ADSs), pursuant and/or
traceable to the registration statement and related prospectus
issued in connection with Yunji's May 2019 initial public stock
offering.
In May 2019, the Defendants held the IPO, issuing approximately 11
million ADSs to the investing public at $11 per ADS, pursuant to
the Registration Statement.
On August 22, 2019, the Company disclosed a supply chain
restructuring that shifted part of its merchandise sales to its
marketplace platform, resulting in a year-over-year decrease in
total revenues for second quarter 2019.
On this news, the Company's share price fell $1.21, nearly 11%, to
close at $9.39 per share on August 22, 2019, on unusually heavy
trading volume. The share price continued to decline by $3.34, or
over 35%, over the next three consecutive trading sessions to close
at $6.05 per share on August 27, 2019, on unusually heavy trading
volume.
At the commencement of the action, Yunji's ADSs are trading around
$4.16 per ADS, significantly below the IPO price. As a result,
investors like the Plaintiff were damaged.
The Plaintiff alleges that the Registration Statement contained
untrue statements of material fact and omitted material facts
required to make the statements made not misleading. Specifically,
the Plaintiff asserts, the Defendants made false and/or misleading
statements and/or failed to disclose that: (1) Yunji was
experiencing decreases in revenues as a result of its shifting to a
marketplace business model; (2) disrupting its business
relationships, Yunji would have to improve its operating efficiency
and increase the commission rate it charges merchant partners; and
(3) as a result, the Defendants' statements about the Company's
business, operations, and prospects were materially false and
misleading and/or lacked a reasonable basis at all relevant times.
As a result of the Defendants' wrongful acts and omissions, and the
precipitous decline in the market value of Yunji's ADSs, Plaintiff
and other Class members have suffered significant losses and
damages, the lawsuit says.
Yunji operates a social e-commerce platform in the People's
Republic of China. Yunji's platform offers a range of product
categories which cater various daily needs of users and their
households, including beauty and personal care, household goods,
food and fresh produce, computer and electronics, apparel, bags and
cases, baby and maternity products, and home appliances.
Credit Suisse Securities (USA) LLC, J.P. Morgan Securities LLC,
China International Capital Corporation Hong Kong Securities
Limited, Top Capital Partners Limited are financial services
company that acted as an underwriter for Yunji's IPO, helping to
draft and disseminate the Registration Statement and solicit
investors to purchase issued Yunji securities.[BN]
The Plaintiff is represented by:
Phillip Kim, Esq.
Laurence M. Rosen, Esq.
THE ROSEN LAW FIRM, P.A.
275 Madison Avenue, 40th Floor
New York, NY 10016
Telephone: (212) 686-1060
Facsimile: (212) 202-3827
E-mail: pkim@rosenlegal.com
lrosen@rosenlegal.com
- and -
Brian Schall, Esq.
THE SCHALL LAW FIRM
1880 Century Park East, Suite 404
Los Angeles, CA 90067
Telephone: (424) 303-1964
E-mail: brian@schallfirm.com
[*] Methods Used to Assess Personal Data Value for Class Suits
--------------------------------------------------------------
Alexander Culafi, writing for Search Security, reports that when it
comes to personal data exposed in a breach, assessing the value of
that data for class actions lawsuits is more of an art than a
science.
As interest in protecting and controlling personal data has surged
among consumers lately, there have been several research reports
that discuss how much a person's data is worth on the dark web.
Threat intelligence provider Flashpoint, for example, published
research in October that said access to a U.S. bank account, or
"bank log," with a $10,000 balance was worth about $25. However,
the price of a package of personally identifiable information (PII)
or what's known as a "fullz" is much less, according to Flashpoint;
fullz for U.S. citizens that contain data such as victims' names,
Social Security numbers and birth dates range between $4 and $10.
But that's the value of personal data to the black market. What's
the value of personal data when it comes to class action lawsuits
that seek to compensate individuals who have had their data exposed
or stolen? How is the value determined? If an organization has
suffered a data breach, how would it figure out how much money they
might be liable for?
SearchSecurity spoke with experts in legal, infosec and privacy
communities to find out more about the obstacles and approaches for
assessing personal data value.
The legal perspective
John Yanchunis leads the class action department of Morgan &
Morgan, a law firm based in Orlando, Fla., that has handled the
plaintiff end for a number of major class action data breach
lawsuits, including Equifax, Yahoo and Capital One.
The 2017 Equifax breach exposed the personal information of over
147 million people, and resulted in the credit reporting company
creating a $300 million settlement fund for victims (which doesn't
even account for the hundreds of millions of dollars paid to other
affected parties). Yahoo, meanwhile, was hit with numerous data
breaches between 2013 and 2016. In the 2013 breach, every single
customer account was affected, totaling 3 billion users. Yahoo
ultimately settled a class action lawsuit from customers for $117.5
million.
When it comes to determining the value of a password, W-2 form or
credit card number, Yanchunis called it "an easy question but a
very complex answer."
"Is all real estate in this country priced the same?" Yanchunis
asked. "The answer's no. It's based on location and market
conditions."
Yanchunis said dark web markets can provide some insight into the
value of personal data, but there are challenges to that approach.
"In large part, law enforcement now monitors all the traffic on the
dark web," he said. "Criminals know that, so what are they doing?
They're using different methods of marketing their product. Some
sell it to other criminals who are going to use it, some put it on
a shelf and wait until the dust settles so to speak, while others
monetize it themselves."
As a result, several methods are used to determine the value of
breached personal data for plaintiffs. "You'll see in litigation
we've filed, there are experts who've monetized it through various
ways in which they can evaluate the cost of passwords and other
types of data," Yanchunis said. "But again, to say what it's worth
today or a year ago, it really depends upon a number of those
conditions that need to be evaluated in the moment."
David Berger, partner at Gibbs Law Group LLP, was also involved in
the Equifax class action lawsuit and has represented plaintiffs in
other data breach cases. Berger said that it was possible to assess
the value of personal data, and discussed a number of damage models
that have been successfully asserted in litigation to establish
value.
One way is to look at the value of a piece of information to the
company that was breached, he said.
"In other words, how much a company can monetize basically every
kind of PII or PHI, or what they are getting in different
industries and what the different revenue streams are," Berger
said. "There's been relatively more attention paid to that in data
breach lawsuits. That can be one measure of damages."
Another approach looks at the value of an individual's personal
information to that individual. Berger explained that this can be
measured in multiple different ways. In litigation, economic
modeling and "fairly sophisticated economic techniques" would be
employed to figure out the market value of a piece of data.
Another approach to assessing personal data value is determining
the cost of what individuals need to do to protect themselves from
misuse of their data, such as credit monitoring services. Berger
also said "benefit-of-the-bargain" rule can also help; the legal
principle dictates that a party that breaches a contract must pay
the victim of the breached contract an amount in damages that puts
them in the same financial position they would be in if the
contract was fulfilled.
For example, Berger said, say a consumer purchases health insurance
and is promised reasonable data security, but if the insurance
carrier was breached then "[they] got health insurance that did not
include reasonable data security. We can use those same economic
modeling techniques to figure out what's the delta between what
they paid for and what they actually received."
Berger also said the California Consumer Privacy Act (CCPA), which
he called "the strongest privacy law in the country," will also
help because it requires companies to be transparent about how they
value user data.
"The regulation puts a piece on that and says, 'OK, here are eight
different ways that the company can measure the value of that
information.' And so we will probably soon have a bunch of
situations where we can see how companies are measuring the value
of data," Berger said.
The CCPA will go into effect in the state on Jan. 1 and will apply
to organizations that do business in the state and either have
annual gross revenues of more than $25 million; possess personal
information of 50,000 or more consumers, households or devices; or
generates more than half its annual revenue from selling personal
information of consumers.
Security and privacy perspectives
Some security and privacy professionals are reluctant to place a
dollar value on specific types of exposed or breached personal
data. While some advocates have pushed the idea of valuing
consumer's personal data as a commodities or goods to be purchased
by enterprises, others, such as the Electronic Frontier Foundation
(EFF) -- an international digital rights group founded 29 years ago
in order to promote and protect internet civil liberties -- are
against it.
An EFF spokesperson shared the following comment, with part of
which being previously published in a July blog post titled,
"Knowing the 'Value' of Our Data Won't Fix Our Privacy Problems."
"We have not discussed valuing data in the context of lawsuits, but
our position on the concept of pay-for-privacy schemes is that our
information should not be thought of as our property this way, to
be bought and sold like a widget. Privacy is a fundamental human
right. It has no price tag."
Harlan Carvey, senior threat hunter at Digital Guardian, an
endpoint security and threat intelligence vendor, agreed with
Yanchunis that assessing the value of personal data depends on the
circumstances of each incident.
"I don't know that there's any way to reach a consensus as to the
value of someone's personally identifiable data," Carvey said via
email. "There's what the individual believes, what a security
professional might believe (based on their experience), and what
someone attempting to use it might believe."
However, he said the value of traditionally low-value or high-value
data might be different depending on the situation.
"Part of me says that on the one hand, certain classes of personal
data should be treated like a misdemeanor, and others like a
felony. Passwords can be changed, as can credit card numbers; SSNs
cannot. Not easily," Carvey said. "However, having been a
boots-on-the-ground, crawling-through-the-trenches member of the
incident response industry for a bit more than 20 years, I cringe
when I hear or read about data that was thought to have been
accessed during a breach. Even if the accounting is accurate, we
never know what data someone already has in their possession. As
such, what a breached company may believe is low-value data is, in
reality, the last piece of the puzzle someone needed to completely
steal my identity."
Jeff Pollard, vice president and principal analyst at Forrester
Research, said concerns about personal data privacy have expanded
beyond consumers and security and privacy professionals to the very
enterprises that use and monetize such data. There may be certain
kinds of personal data that can be extremely valuable to an
organization, but the fear of regulatory penalties and class action
lawsuits are causing some enterprises to limit the data they
collect in the first place.
"Companies may look at the data and say, 'Sure, it'll make our
service better, but it's not worth it' and not collect it all,"
Pollard said. "A lot of CISOs feel like they'll be better off in
the long run."
Security news director, Rob Wright, contributed to this report.
[GN]
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