/raid1/www/Hosts/bankrupt/CAR_Public/200103.mbx
C L A S S A C T I O N R E P O R T E R
Friday, January 3, 2020, Vol. 22, No. 3
Headlines
53RD STREET PARTNERS: Solis Sues Over Violations of FLSA and NYLL
ALLERGAN INC: Fails to Disclose Risk of Breast Implants, Suit Says
AMNEAL PHARMA: Appeal in Suit over Digoxin Sales Pending
AMNEAL PHARMA: Appeal in Williams Class Suit Underway
AMNEAL PHARMA: Faces Rhodes Class Action in Tennessee
ARC INSPECTION: Malone Seeks to Recover Overtime Wages Under FLSA
ARES MANAGEMENT: Verification and Affidavit Filed in Jacobs Suit
AROTECH CORP: Argonaut Merger-Related Suits Ongoing
ASHLEY FURNITURE: 9th Cir. Affirms Summary Judgment Ruling in Razo
BANK OF AMERICA: Has Made Unsolicited Calls, Childers Suit Claims
BEST MAIDS: Fails to Pay for All Hours Worked, Salinas Suit Says
BHANG CORP: Ballard Sues over Mislabeled Cannabis Products
BIMBO BAKERIES: Fails to Pay Proper OT, Burke et al. Claim
BLYTHEVILLE, AR: Violates OT Provisions of FLSA, Woolsey Claims
CARDINAL HEALTH: Garcia Sues Over Failure to Pay All Hours Worked
CASCADE CAPITAL: Collection Letter Violates FDCPA, Zweemer Claims
CASHCALL INC: Court Grants Certification in MacDonald Class Suit
CHOICE HOTELS: Muhammad Sues Over Blind-Inaccessible Web Site
CIRCLE K STORES: Popejoy Labor Suit Removed to E.D. California
COVINGTON, KY: Fails to Serve Demolition Order, Ky. Tax Bill Says
CREW INT'L: Hartanovich Sues Over False Marketing of Cali White
DAVITA INC: Still Defends Peace Officers' Annuity and Benefit Suit
DELTA DENTAL: Kottemann Sues Over Allocation of Insurance Market
DENTSPLY SIRONA: Awaits Court's Decision in Bid to Dismiss Suit
DENTSPLY SIRONA: Continues to Defend Consolidated N.Y. Suit
DENTSPLY SIRONA: Olivares Suit v. Futuredontics Still Ongoing
DEPOSITORS INSURANCE: Sylvester Sues Alleging Breach of Contract
DJO GLOBAL: Court Allows Dreifort to Amend Complaint
DNC SERVICES: 11th Cir. Affirms Wilding Suit Dismissal
EFINANCIAL LLC: Fails to Pay Inside Sales Reps' OT Wage, Lee Says
EMPIRE RESORTS: Expects Merger Suits to be Voluntarily Dismissed
EXPERT JANITORIAL: Wash. App. Ct. Flips MWA Claims Dismissal
GENCO IMPORTING: Weathersby Sues Over Unpaid Tipped Minimum Wage
GEO GROUP: Trial in 2 Washington Cases Set for Trial in March 2020
GROUP HEALTH PLAN: Greenwell Sues Over Denial of Therapy Coverage
HAIN CELESTIAL: Bid to Dismiss Securities Class Suit Pending
HAIN CELESTIAL: Stockholders' Consolidated Class Suit Still Stayed
HAMMER HAAG: Griffin Seeks Unpaid Wages & Benefits Under WARN Act
HERTZ CORPORATION: Jeffrey Seeks to Recoup Overtime Wages for LMs
ICCO CHEESE: S.C. Grants Insurers' Summary Judgment Bid
INTEGRITY SENIOR: Fails to Pay Proper Wages, Brown Alleges
JAWLAW INC: Fails to Pay Overtime Wages Under FLSA, Levine Claims
JAX LLC: Sued by Smith for Not Properly Paying Servers Under FLSA
JERRY'S SEAMLESS: Hubbard Seeks Overtime Wages for Installers
JONES FINANCIAL: Appeal in McDonald Class Action Still Pending
JONES FINANCIAL: Dismissal of Anderson Suit under Appeal
JONES FINANCIAL: Renewed Bid to Dismiss Bland Class Suit Pending
JOS A BANK: Mendez Sues Over Gift Cards Inaccessible by Blind
KLOECKNER METALS: $110K Attorneys Fees Awarded in Galarza FLSA Suit
KOPPERS RECOVERY: Fails to Pay Overtime Under FLSA, Myers Claims
LASERSHIP INC: Morris Sues Over Unpaid Minimum and Overtime Wages
LD PRODUCTS: Faces Morgan Suit Over Blind-Inaccessible Web Site
LIDL US: Santiago Sues Over False Packaging of Ice Cream Products
MAZDA MOTOR: Miyares Sues Over Defective Smart City Brakes
MERIT MEDICAL: Pension Fund Sues over 29% Drop in Share Price
METHODIST HEALTH: Fails to Pay OT Wages Under FLSA, Reed Claims
MICRO KICKBOARD: NY District Court Dismisses Duncan ADA Suit
MOOG INC: Ramos Suit Over Unpaid Wages Removed to C.D. California
MOSS BROS AUTO: Faces Johnson Suit Over Unsolicited Marketing
N. CALIFORNIA INALLIANCE: Ct. Vacates Future Hrng Dates in Osegueda
NCAA: Patterson Sues Over Disregard for Athletes' Health & Safety
NEKTAR THERAPEUTICS: Still Defends Securities Class Suits in Calif.
NEW YORK CITY: Teagle Suit Alleges Pregnancy Discrimination
OMNI HOTELS: Faces Garcia Suit Alleging Violations of Labor Code
PDC ENERGY: Faces SRC Energy Merger-Related Suits
PERMANENT WORKERS: 5th Cir. Awards $1K Lawyer Fees in Portillo Suit
PET FOOD: Vazquez Sues Over Illegal Collection of Biometric Data
PETSMART INC: Court OKs $1.35MM Settlement Deal in Milburn Case
PFIZER INC: Continues to Defend Lipitor-Related Antitrust Suits
PFIZER INC: Hormone Therapy Consumer Class Action vs. Wyeth Ongoing
PFIZER INC: Intravenous Saline Solution-Related Suit Ongoing
PFIZER INC: Wyeth Still Defends Class Suit over Effexor XR Sales
PG&E CORP: Feb. 6 Hearing on Bid to Dismiss Investors' Suit
PG&E CORP: Vataj Securities Class Action Still Ongoing
POWER PLAY: Burress Sues over Biometric Data Collection
PRAXAIR INC: Gonzales Labor Suit Removed to C.D. California
PUBLIC REPUTATION: Has Made Unsolicited Calls, Austin Alleges
PUTNAM MOTORS: Has Made Unsolicited Calls, Bartel Alleges
QTC MEDICAL: Faces Masci Suit Over Unsolicited Fax Advertisements
QUIKTRAK INC: Removes Wallace Suit to N.D. California
REALGY LLC: Shelton Sues Over Nuisance Telemarketing Practices
REGRESO FINANCIAL: $200K Lawyer Fees Awarded in Karcauskas Lawsuit
RENT-A-CENTER INC: Discovery Ongoing in Russell Class Action
RICO PAN INC: Ramirez Seeks to Recover Minimum and Overtime Wages
RICOH USA: $2.2MM De Leon Suit Deal Gets Initial Court Approval
S-L DISTRIBUTION: Marston Sues Over Deductions From IBOs' Wages
S1 SECURITY: McKay-Taylor Seeks to Recover Unpaid Overtime Wages
SAREPTA THERAPEUTICS: Continues to Defend Salinger Class Suit
SCHENKER INC: Faces Orpilla Suit Alleging Violation of FCRA
SENIOR LIFESTYLE: Wilk Sues Over Failure to Protect Personal Info
SMILEDIRECTCLUB INC: Harts Sues Over Breaches of Fiduciary Duty
SPECTRUM PHARMACEUTICAL: MOU Reached in Hartsock Class Action
STURM RUGER: Decision in Primus Group Class Suit under Appeal
SUDLER AND COMPANY: 7th Cir. Affirms Horist Suit Dismissal
SUNPATH LTD: Landy Sues Over Unsolicited Autodialed Phone Calls
SYCAMORE LEE: Fails to Pay All Wages Under FLSA/NYLL, Tonery Says
TEVA PHARMA: Awaits Pre-Trial Schedule in Grodko-Baker Suit
TEVA PHARMA: Court Narrows Claims in Ontario Teachers Suit
TEVA PHARMA: Intuniv(R) Direct Purchasers' Class Cert. Bid Granted
TEVA PHARMA: Settlement Reached in Lidoderm(R)-Related Suit
TEVA PHARMA: Settlement Reached in PROVIGIL(R) Related Suit
TRUE SECURITY: Smith Seeks to Recoup Damages & Backpay Under FLSA
TRUMAN ROAD: Court Denies Dismissal of Smith TCPA Lawsuit
UNITED STATES: Court Dismisses Nurses' Suit Seeking Back Wages
URBAN COMPASS: Mahlberg Sues Over Blind-Inaccessible Web Site
VOYA RETIREMENT: Continues to Defend Goetz Class Action
WAWA INC: Fails to Secure/Safeguard Consumers' PII, Kaufman Says
WAYFAIR LLC: Balaz Sues over Biometric Data Collection
WELLS FARGO: Miller Seeks to Recover Minimum and Overtime Wages
WHIRLPOOL CORP: Court Narrows Claims in Danielkiewicz Class Suit
WHIRLPOOL CORP: Court Tags as Moot Motion to Dismiss Nathan Suit
Asbestos Litigation
ASBESTOS UPDATE: Navistar Still Faces Exposure Claims at Oct. 31
*********
53RD STREET PARTNERS: Solis Sues Over Violations of FLSA and NYLL
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Pablo Solis and Andres Taveras, individually and on behalf of all
others similarly situated v. 53RD STREET PARTNERS LLC doing
business as REMI RESTAURANT, ROBERTO DELLEDONNE, and STEFANO
FRITTELLA, Case No. 1:19-cv-11708 (S.D.N.Y., Dec. 20, 2019), seeks
to remedy the Defendants' violations of the Fair Labor Standards
Act, the New York Labor Law, and the New York Worker Adjustment and
Retraining Notification Act.
The Defendants knew that they were going to close Remi Restaurant's
operations no later than April 2019, but they never issued advance
notice of the anticipated closure of Remi Restaurant as required by
the NY WARN Act, the Plaintiffs contend. The Plaintiffs were
terminated without notice on December 12, 2019.
According to the complaint, the Defendants regularly or
occasionally failed to pay minimum wage and overtime wages required
by FLSA and/or NY Wage Law in the past 6 years. The Defendants
stopped making regular payments of wages to their employees in or
about the summer of 2019. They also made delayed payments to
employees at various points.
The Plaintiffs were employed by Remi Restaurant as servers.
Remi Restaurant was a luxury restaurant located across the street
from the Museum of Modern Art. Remi Restaurant served meals to
diners and caters special events on a frequent basis.[BN]
The Plaintiffs are represented by:
Anthony P. Consiglio, Esq.
CARY KANE LLP
1350 Broadway, Suite 1400
New York, NY 10018
Phone: (212) 868-6300
Email: aconsiglio@carykane.com
ALLERGAN INC: Fails to Disclose Risk of Breast Implants, Suit Says
------------------------------------------------------------------
F.A.; S.B.; K.B.; M.C.; M.D.E.; A.F.; M.G.; T.K.; C.L; C.M.;
G.A.M.; M.M.P.; M.S.; and A.V., individually and on behalf of all
others similarly situated, Plaintiffs v. ALLERGAN, INC. f/k/a
INAMED CORPORATION; ALLERGAN USA, INC.; ALLERGAN PLC, and DOES 1
through 20, inclusive, Defendants, Case No. 8:19-cv-02337 (C.D.
Cal., Dec. 4, 2019) is a class action against Allergan for
manufacturing and selling BIOCELL textured breast implants and
tissue expanders that expose women to a higher risk of breast
implant-associated anaplastic large cell lymphoma ("BIA-ALCL"), a
deadly cancer of the immune system.
The Plaintiffs allege in the complaint that the Defendants knew of
the increased risks of BIA-ALCL as early as 2011, the Defendants
failed to warn women considering their implants. Although the
Defendants has now issued a recall pursuant to FDA's directive, it
refuses to take full responsibility and refuses to cover the
significant costs associated with removal and replacement of the
defective devices and medical monitoring, among other damages.
Following a request by the FDA, the Defendants announced a
worldwide recall of all BIOCELL textured breast implants and tissue
expanders on July 14, 2019. The Defendants has refused to pay for
the removal of the recalled products or any of the consequences of
additional surgery that women who choose removal will have to
undergo, or for medical monitoring of the substantially increased
risk of BIA-ALCL that all women implanted with the devices have
been subjected to.
Prior to issuing a request for the recall, the Food and Drug
Administration ("FDA") had received reports establishing that
BIOCELL implants and expanders were associated with an increase in
reported cases of BIA-ALCL: 573 cases of BIA-ALCL worldwide
including 33 deaths. Of the 573 known cases of BIA-ALCL, 481 (or
about 84%) were attributed to Allergan products, and of the 33
reported deaths, "12 of the 13 patients for which the manufacturer
of the implant is known are confirmed to have an Allergan breast
implant[.]" According to the FDA, the risk of BIA-ALCL is six times
higher with Allergan's textured implants than textured implants
from other manufacturers.
Allergan, Inc. of United States provides pharmaceuticals products.
The Company offers medical devices and over-the-counter products
for ophthalmic, neurological, medical aesthetics, medical
dermatology, breast aesthetics, obesity intervention, and
urological diseases. Allergan serves customers worldwide. [BN]
The Plaintiffs are represented by:
Tina Wolfson, Esq.
Theodore W. Maya, Esq.
Ruhandy Glezakos, Esq.
AHDOOT & WOLFSON, PC
10728 Lindbrook Drive
Los Angeles, CA 90024
Telephone: (310) 474-9111
Facsimile: (310) 474-8585
E-mail: twolfson@ahdootwolfson.com
tmaya@ahdootwolfson.com
rglezakos@ahdootwolfson.com
AMNEAL PHARMA: Appeal in Suit over Digoxin Sales Pending
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Amneal Pharmaceuticals, Inc. said in its Form 10-Q Report filed
with the Securities and Exchange Commission on November 7, 2019,
for the quarterly period ended September 30, 2019, that an appeal
from a decision in the class action suit related to generic drug
digoxin is pending.
On April 17, 2017, Lead Plaintiff New York Hotel Trades Council &
Hotel Association of New York City, Inc. Pension Fund filed an
amended class action complaint in the United States District Court
for the Northern District of California on behalf of itself and
others similarly situated against Impax and four current or former
Impax officers alleging violations of Sections 10(b) and 20(a) of
the Securities Exchange Act of 1934 and Rule 10b-5.
Plaintiff asserts claims regarding alleged misrepresentations about
three generic drugs. Its principal claim alleges that Impax
concealed that it colluded with competitor Lannett Corp. to fix the
price of generic drug digoxin, and that its digoxin profits stemmed
from this collusive pricing. Plaintiff also alleges that Impax
concealed from the market anticipated erosion in the price of
generic drug diclofenac and that Impax overstated the value of
budesonide, a generic drug that it acquired from Teva.
On June 1, 2017, Impax filed its motion to dismiss the amended
complaint. On September 7, 2018, the Court granted Impax's motion,
dismissing plaintiff’s claims without prejudice and with leave to
amend the complaint.
Plaintiff filed a second amended complaint October 26, 2018. Impax
filed a motion to dismiss the second amended complaint on December
6, 2018; plaintiffs' opposition thereto was filed on January 17,
2019; and Impax's reply in support of its motion to dismiss was
filed on February 7, 2019.
A hearing before the Court on the motion to dismiss took place on
May 2, 2019. On August 12, 2019, the Court entered an order
granting Impax's motion, dismissing plaintiffs second amended
complaint with prejudice.
On September 5, 2019, plaintiff filed a notice of appeal from both
dismissal orders with the United States Court of Appeals for the
Ninth Circuit.
Amneal Pharmaceuticals, Inc., together with its subsidiaries,
develops, licenses, manufactures, markets, and distributes generic
and specialty pharmaceutical products for various dosage forms and
therapeutic areas. It operates through two segments, Generics and
Specialty. Amneal Pharmaceuticals, Inc. was founded in 2002 and is
based in Bridgewater, New Jersey.
AMNEAL PHARMA: Appeal in Williams Class Suit Underway
-----------------------------------------------------
Amneal Pharmaceuticals, Inc. said in its Form 10-Q Report filed
with the Securities and Exchange Commission on November 7, 2019,
for the quarterly period ended September 30, 2019, that the appeal
from a ruling in the class action suit initiated by Emielou
Williams is ongoing.
On August 3, 2017, plaintiff Emielou Williams filed a class action
complaint in the Superior Court for the State of California in the
County of Alameda on behalf of herself and others similarly
situated against Impax alleging violation of California Business
and Professions Code section 17200 by violating various California
wage and hour laws, and seeking, among other things, declaratory
judgment, restitution of allegedly unpaid wages, and disgorgement.
On October 10, 2017, Impax filed a Demurrer and Motion to Strike
Class Allegations. On December 12, 2017, the Court overruled
Impax's Demurrer to Plaintiff's individual claims. However, it
struck all of plaintiff's class allegations.
On March 13, 2018, plaintiff filed her First Amended Complaint once
again including the same class allegations. The Company filed a
Demurrer and Motion to Strike Class Allegations on April 12, 2018.
On September 20, 2018, the Court again struck plaintiff's class
allegations; plaintiff has appealed this most recent order to the
California State Court of Appeal.
Plaintiff filed her opening appellate brief on February 22, 2019;
Impax’s brief in response was filed on April 18, 2019; plaintiff
filed her reply brief on May 7, 2019; and Impax filed a surreply on
May 22, 2019. The appeal has now been fully submitted on the
briefs.
No further updates were provided in the Company's SEC report.
Amneal Pharmaceuticals, Inc., together with its subsidiaries,
develops, licenses, manufactures, markets, and distributes generic
and specialty pharmaceutical products for various dosage forms and
therapeutic areas. It operates through two segments, Generics and
Specialty. Amneal Pharmaceuticals, Inc. was founded in 2002 and is
based in Bridgewater, New Jersey.
AMNEAL PHARMA: Faces Rhodes Class Action in Tennessee
-----------------------------------------------------
Amneal Pharmaceuticals, Inc. said in its Form 10-Q Report filed
with the Securities and Exchange Commission on November 7, 2019,
for the quarterly period ended September 30, 2019, that the company
is facing a putative class action suit entitled, Rhodes, et al., v.
Rhodes Technologies, Inc., et al., No. 3:19-cv-00885.
In October 2019, the Company, Amneal, Amneal Pharmaceuticals of New
York, LLC, and Impax were served with a putative class action
complaint, which also names as defendants numerous manufacturers of
opioid products (and certain corporate officers thereof), filed in
the United States District Court for the Middle District of
Tennessee by several individuals who allegedly purchased
prescription opioid medication in cash and/or with an insurance
co-payment (Rhodes, et al., v. Rhodes Technologies, Inc., et al.,
No. 3:19-cv-00885).
Plaintiffs claim that they would not have purchased these
prescription opioid products had defendants not allegedly
misrepresented the products' "addiction propensities," and thereby
suffered economic loss.
Plaintiffs purport to represent a nationwide class of all
individuals who directly or indirectly purchased prescription
opioid medication from January 2008 to the present in 31 different
states, allege causes of action for violations of those states’
antitrust laws and consumer protection statutes (and unjust
enrichment), and seek, in addition to class certification,
unspecified monetary damages (including actual, statutory, and
punitive or treble damages) and equitable relief, including
declaratory judgment and restitution.
Responsive pleadings are not yet due to be filed.
Amneal Pharmaceuticals, Inc., together with its subsidiaries,
develops, licenses, manufactures, markets, and distributes generic
and specialty pharmaceutical products for various dosage forms and
therapeutic areas. It operates through two segments, Generics and
Specialty. Amneal Pharmaceuticals, Inc. was founded in 2002 and is
based in Bridgewater, New Jersey.
ARC INSPECTION: Malone Seeks to Recover Overtime Wages Under FLSA
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Nick Malone, Jason Howard, and Jeremiah Kinworthy, individually and
on behalf of all others similarly situated v. ARC INSPECTION
SERVICES, LLC; BRANDON GOBLE; and SHANE WELLS, Case No.
7:19-cv-00296 (W.D. Tex., Dec. 22, 2019), is brought to recover
unpaid overtime wages and other damages under the Fair Labor
Standards Act.
To perform its inspection services, Arc employs many workers like
the Plaintiffs. These workers are paid a flat hourly rate for all
hours worked, without any overtime premium for hours in excess of
40 in a workweek and which did not account for non-discretionary
bonuses Arc paid to these workers. Arc simply paid an arbitrary
hourly rate for overtime hours which did not include a full
overtime premium, including non-discretionary bonuses these workers
received, for those hours worked in excess of 40 in a workweek,
says the complaint
The Plaintiffs were employed as inspectors/radiographers providing
inspection services to Arc's clients.
Arc provides weld inspection services to the oilfield and other
industries.[BN]
The Plaintiffs are represented by:
Matthew S. Parmet, Esq.
PARMET PC
340 S. Lemon Ave., #1228
Walnut, CA 91789
Phone: 713 999 5228
Fax: 713 999 1187
Email: matt@parmet.law
ARES MANAGEMENT: Verification and Affidavit Filed in Jacobs Suit
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In the case captioned Mark Jacobs, individually on behalf of all
similarly situated v. ARES MANAGEMENT CORPORATION, MOHSIN Y.
MEGHJI, JOHN PAUL ROEHM, DEREK GLANVILL, PETER JONNA, CHARLES
GARNER, TERENVE MONTGOMERY, IAN SCHAPIRO, JOHN EBER, OAKTREE POWER
OPPURTUNITIES FUND III DELAWARE, L.P., AND INFRASTRUCTURE & ENERGY
ALTERNATIVES INC., Case No. 2019-1022 (Del. Ch., Dec. 20, 2019),
the Plaintiff filed an affidavit and verification in connection
with the filing of a verified class action complaint.
Mr. Jacobs discloses that he currently owns and holds shares of
Infrastructure & Energy Alternative Inc. and has held such share at
all relevant times. He says he is the Plaintiff in the action, has
read the Verified Stockholder Derivative And Class Action
Complaint, and believes it to be true and correct, and is true to
his own knowledge, except as to the matters stated to be alleged
upon information and belief, and as to those matters he believe
them to be true.
Mr. Jacobs also tells the Court that he has not received, been
promise or offered, and will not accept any form of compensation,
directly or indirectly, for prosecuting or serving as a
representative party in this action except for: (a) such damages or
other relief as the Court may award him as a member of the class;
(b) such fees, costs or other payments as the Court expressly
approves to be paid to him or on his behalf; or (c) reimbursement,
paid by his attorneys, of actual and reasonable out-of-pocket
expenses incurred by him directly in connection with prosecution of
this action.[BN]
AROTECH CORP: Argonaut Merger-Related Suits Ongoing
---------------------------------------------------
Arotech Corporation said in its Form 10-Q Report filed with the
Securities and Exchange Commission on November 7, 2019, for the
quarterly period ended September 30, 2019, that the company
continues to defend class action suits related to its merger with
Argonaut Intermediate, Inc.
On September 22, 2019, Arotech Corporation ("Arotech") and its
wholly-owned subsidiaries (the "Company") entered into an Agreement
and Plan of Merger (the "Merger Agreement") with Argonaut
Intermediate, Inc., a Delaware corporation ("Parent"), and Argonaut
Merger Sub, Inc., a Delaware corporation and a direct, wholly-owned
subsidiary of Parent ("Merger Sub"), providing for the acquisition
of the Company by Parent.
Pursuant to the terms of the Merger Agreement, Merger Sub will, at
the closing of the transactions contemplated by the Merger
Agreement, merge with and into the Company, with the Company
surviving the merger as a wholly-owned subsidiary of Parent (the
"Merger"). Parent and Merger Sub are each controlled by investment
funds affiliated with Greenbriar Equity Group, L.P., a private
equity firm.
On October 24, 2019, Shiva Stein, a purported stockholder of the
Company, filed a complaint against the Company and the members of
the board in the United States District Court for the District of
Delaware, styled Stein v. Arotech Corporation, C.A. No.
1:19-cv-02016-RGA (the "Stein Action").
Stein alleges that the Company and the board violated the
Securities Exchange Act of 1934 by failing to disclose material
information in connection with financial projections and inputs
relied upon by B. Riley in its analyses, including (i) certain
non-GAAP financial information and a reconciliation to GAAP, (ii)
certain inputs or analyses relating to B. Riley's Discounted Cash
Flow Analysis, and (iii) the premiums paid in the transactions
observed in B. Riley's Premiums Paid Analysis.
Stein seeks to, among other things, enjoin the consummation of the
merger until such disclosures are made, rescind, to the extent
already implemented, the merger agreement, or obtain damages.
On October 28, 2019, Eric Sabatini filed a purported stockholder
class action against the Company and the members of the board in
the United States District Court for the District of Delaware,
styled Sabatini v. Arotech Corporation, C.A. No. 1:19-cv-02028-RGA
(the "Sabatini Action").
On October 30, 2019, Jacqueline D. Creeks, a purported stockholder
of the Company, filed a complaint against the Company, the members
of the board, Dean M. Krutty, and Kelli L. Kellar in the United
States District Court for the Southern District of New York, styled
Creeks v. Arotech Corporation, C.A. No. 1:19-cv-10044 (the "Creeks
Action").
Sabatini and Creeks assert similar allegations to those in the
Stein Action and seek similar relief.
On October 31, 2019, David Hill filed a purported stockholder class
action against the Company and the members of the board in the
Circuit Court for Washtenaw County in the State of Michigan, styled
Hill v. Arotech, Inc., Case No 19-001185-CB (the "Hill Action").
Hill alleges that the members of the board breached their fiduciary
duties by failing to disclose purportedly material information,
including the information sought in the Stein Action, Sabatini
Action, and Creeks Action, and information relating to the sales
process, such as details regarding certain confidentiality
agreements, the reason for forming the special committee, and the
scope of the special committee's authority.
Hill also alleges that the members of the board breached their
fiduciary duties by engaging in a purportedly deficient sales
process resulting in a purportedly unfair price. Hill further
alleges that the members of the board labored under a conflict of
interest as a result of the accelerated vesting of certain equity.
Finally, Hill claims that the Company aided and abetted those
purported breaches. Hill seeks similar relief to the relief sought
in the Stein Action, Sabatini Action, and Creeks Action.
The outcome of this litigation cannot be predicted with certainty;
however, we and our board believe that the allegations and claims
asserted in the Stein Action, Sabatini Action, Creeks Action, and
Hill Action are without merit.
A negative outcome in the actions could adversely affect us if it
results in preliminary or permanent injunctive relief. If
additional similar complaints are filed, absent new or different
allegations that are material, we may not necessarily announce such
additional filings.
Arotech Corporation is a leading provider of quality defense and
security products for the military, law enforcement and homeland
security markets. Arotech provides multimedia interactive
simulators/trainers, lightweight armoring and advanced zinc-air and
lithium batteries and chargers. Arotech operates through three
major business divisions: Armor, Training and Simulation, and
Batteries and Power Systems. Arotech is incorporated in Delaware,
with corporate offices in Ann Arbor, Michigan and research,
development and production subsidiaries in Alabama, Michigan and
Israel.
ASHLEY FURNITURE: 9th Cir. Affirms Summary Judgment Ruling in Razo
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In the case captioned NICHOLAS RAZO, on behalf of himself and all
others similarly situated, Plaintiff-Appellant, v. ASHLEY FURNITURE
INDUSTRIES, INC., a Wisconsin corporation; et al.,
Defendants-Appellees, Case No. 17-56770, the United States Court of
Appeals, Ninth Circuit issued a Memorandum affirming the District
Court's judgment granting Defendant's Motion for Summary Judgment.
Nicholas Razo appealed from the district court's summary judgment
in favor of defendant Ashley Furniture Industries, Inc. (Ashley) in
his class action under California's Consumer Legal Remedies Act,
Unfair Competition Law, and False Advertising Law.
The Appellate Court reviews de novo a district court's decision to
grant summary judgment.
According to the Ninth Circuit, the district court properly granted
summary judgment on Razo's claims because a reasonable consumer
would have read the unambiguous and truthful disclosures placed on
the front and back of Ashley's DuraBlend hangtag. A reasonable
consumer reading that list of features would also read those
disclosures and discover that DuraBlend is not genuine leather.
Despite this difficult standard, Razo cited no evidence in his
opposition to summary judgment that would suggest Ashley exercised
control over Casa Linda. A district court on summary judgment need
not search the entire record for a genuine issue of fact when the
nonmoving party has failed to identify said evidence in opposition.
Based on the evidence before it, the district court properly
declined to hold Ashley responsible for the actions of Casa Linda's
employees.
In sum, Razo failed to raise a genuine dispute that Ashley's
representations about DuraBlend would likely deceive a reasonable
consumer into believing that DuraBlend is made of genuine leather.
The district court therefore correctly granted summary judgment in
favor of Ashley.
A full-text copy of the Court of Appeals' October 28, 2019
Memorandum is available at https://tinyurl.com/y3ktjjha from
Leagle.com.
BANK OF AMERICA: Has Made Unsolicited Calls, Childers Suit Claims
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RYAN CHILDERS, individually and on behalf of all others similarly
situated, Plaintiff v. BANK OF AMERICA, N.A., Defendant, Case No.
Case 3:19-cv-02316-WQH-RBB (S.D. Cal., Dec. 4, 2019) seeks to stop
the Defendants' practice of making unsolicited calls.
Bank of America, National Association operates as a bank. The Bank
offers saving and current account, investment and financial
services, online banking, and mortgage and non-mortgage loan
facilities, as well as issues credit card and business loans. Bank
of America serves clients worldwide. [BN]
The Plaintiff is represented by:
Joshua B. Swigart, Esq.
SWIGART LAW GROUP, APC
2221 Camino del Rio S, Ste 308
San Diego, CA 92108
Telephone: (866) 219-3343
Facsimile: (866) 219-8344
E-mail: Josh@SwigartLawGroup.com
BEST MAIDS: Fails to Pay for All Hours Worked, Salinas Suit Says
----------------------------------------------------------------
Norma Salinas, Maria Rodriguez, Rocio Francisco, on behalf of
themselves and others similarly situated v. Best Maids, Inc.,
Stella Smolka, Case No. 1:19-cv-08390 (N.D. Ill., Dec. 21, 2019),
arises from the Defendants' failure to pay for all hours worked by
the Plaintiffs, in violation of the Fair Labor Standards Act, the
Illinois Minimum Wage Law, and the Illinois Wage Payment and
Collection Act.
The Defendants failed to pay the overtime premium of one and one
half times the Plaintiffs' hourly wage for all hours worked in
excess of 40 hours in a workweek, failed to provide meal periods,
and failed to pay for hours worked spent traveling from the
corporate office to (and between), work locations and for
transporting their fellow workers, says the complaint. The
Plaintiffs also accuse the Defendants of making unauthorized and
prohibited deductions from the Plaintiffs' wages for equipment
repair, supplies and docking the Plaintiffs' pay when they received
complaints about the quality of the work performed.
The Plaintiffs were employed by the Defendants.
The Defendants operate a cleaning service in Hickory Hills,
Illinois.[BN]
The Plaintiffs are represented by:
Jorge Sanchez, Esq.
LOPEZ & SANCHEZ LLP
77 W. Washington St., Suite 1313
Chicago, IL 60602
Phone: (312) 420-6784
Email: jsanchez@lopezsanchezlaw.com
BHANG CORP: Ballard Sues over Mislabeled Cannabis Products
----------------------------------------------------------
CHARLES BALLARD, individually and on behalf of all others similarly
situated, Plaintiff v. BHANG CORPORATION; and DOES 1 THROUGH 25,
inclusive, Defendants, Case No. 5:19-cv-02329 (C.D. Cal., Dec. 4,
2019) is an action against the Defendants for violations of the
California Consumer Legal Remedies Act, the California False
Advertising Law, the California Unfair Competition Law, breach of
express warranty, breach of the implied warranty of merchantability
and for fraud and negligent misrepresentation.
According to the complaint, the Plaintiff has purchased Bhang
Medicinal Chocolate during the time period 2016 through 2018 from
retail locations, including in Riverside County, Orange County and
Los Angeles County, and in doing so altered his position in an
amount equal to the amounts, including the price premiums, he paid
for the Bhang Products. The Plaintiff and the Proposed Class would
not have purchased or paid a price premium for the Bhang Products
had he known that the representations stated on the labels of the
Bhang Products regarding the amounts and/or levels of Cannabidiol,
or CBD, and delta-9-tetrahydrocannabinol, or THC, were false,
deceptive and/or misleading.
The Bhang Products contain the statements, representations, and
warranties, which are false, misleading, and deceptive claims and
advertisements set forth on packaging, labeling and in
advertisements. On information and belief, the Bhang Products do
not contain the amounts or levels of THC and CBD identified on the
Products' labels, packaging, and marketing materials. Independent
lab testing commissioned by Plaintiff of the Bhang Products reveals
that the amounts and levels of THC and CBD do not conform to the
statements, representations, and warranties set forth on the front
and back labels, packaging, or marketing materials of the Bhang
Products. The actual amounts and levels of THC and CBD are
substantially less than stated on the front and back of the labels,
packaging, and marketing materials by the Defendants.
Bhang Inc. operates as a global cannabis house of brands. The
Company offers its products in Canada. [BN]
The Plaintiff is represented by:
Reuben D. Nathan, Esq.
NATHAN & ASSOCIATES, APC
2901 W Coast Hwy Ste 200
Newport Beach, CA 92663
Telephone: (949) 270-2798
E-mail: rnathan@nathanlawpractice.com
- and -
Ross Cornell, Esq., Esq.
111 W. Ocean Blvd., Suite 400
Long Beach, CA 90802
Telephone: (562) 612-1708
E-mail: ross.law@me.com
BIMBO BAKERIES: Fails to Pay Proper OT, Burke et al. Claim
----------------------------------------------------------
ERIC BURKE; CRAIG BARKER; RICK CALTON; ARTHUR SALISBURY; WILLIAM
CORY TANNER; BRIAN TANNER; and TONY WEAVER, individually and on
behalf of all others similarly situated, Plaintiffs v. BIMBO
BAKERIES USA, INC.; BIMBO FOODS BAKERIES DISTRIBUTION, LLC,
Defendants, Case No. 7:19-cv-11101 (S.D.N.Y., Dec. 3, 2019) is an
action against the Defendant's failure to pay the Plaintiff and the
class overtime compensation for hours worked in excess of 40 hours
per week.
The Plaintiffs were employed by the Defendants as non-exempt,
hourly paid employees.
Bimbo Bakeries USA, Inc. provides bakery products. The Company
wholesale distributes breads, rolls, chips, tortillas, cookies,
pies, cakes, pastries, doughnuts, croutons, and other related
products. [BN]
The Plaintiffs are represented by:
Shannon Liss-Riordan, Esq.
Harold Lichten, Esq.
Matthew W. Thomson, Esq.
LICHTEN & LISS-RIORDAN, P.C.
729 Boylston St., Suite 2000
Boston, MA 02116
Telephone: (617) 994-5800
Facsimile: (617) 994-5801
E-mail: sliss@llrlaw.com
hlichten@llrlaw.com
mthomson@llrlaw.com
BLYTHEVILLE, AR: Violates OT Provisions of FLSA, Woolsey Claims
---------------------------------------------------------------
Justin Woolsey, Gary Andrew, Alvin Bell, Matthew Bohannan, Wayne
Breckenridge, Paul Brown, Rodney Duncan, Chad Evans, Brian Grisham,
Darryl Grissom, Ethan Grissom, Kyle Hinson, Chris Holifield,
Gerrett Howard, Dennis Massey, Jeremy Mhoon, Gary Myers, Obed Peek,
James Phelps, Alvin Riley, Deon Robinson, Daylon (Shawn) Sanford,
Travis Scissell, and Jason Taylor, individually and on behalf of
all other similarly situated v. THE CITY OF BLYTHEVILLE, ARKANSAS,
Case No. 3:19-cv-00377-DPM (Ark. Cir. Ct., Mississippi Cty., Dec.
20, 2019), is brought against Defendant for violations of the
overtime provisions of the Fair Labor Standards Act and the
Arkansas Minimum Wage Act.
The Plaintiffs were routinely required to work in excess of 204
hours in a 27 required work day period, according to the complaint.
The Defendant knew that the Plaintiffs and other similar fire
department employees worked in excess of 204 hours in a 27 day
period, as the Defendant required them to do so. The Defendant did
not provide the Plaintiffs and similar fire department employees
with compensatory time off at a rate of one and one-half hours of
compensatory time for each hour of overtime worked. The Defendant
also did not pay the Plaintiffs one and one-half times their
regular hourly rate for their overtime hours, says the complaint.
The Plaintiffs were and are employed by the Defendant as fire
department employees.
The Defendant operates the Blytheville Fire Department where the
Plaintiffs were employed.[BN]
The Plaintiffs are represented by:
James W. Harris, Esq.
LAW OFFICE OF JAMES W. HARRIS
118 West Walnut
P.O. Box 185
Blytheville, AK 72316-0185
Phone: 870-762-6900
Fax: 870-762-2623
Email: jwhanisl@prodigy.net
CARDINAL HEALTH: Garcia Sues Over Failure to Pay All Hours Worked
-----------------------------------------------------------------
Judy Garcia, Fidel Barrios, individually and on behalf of
themselves and all others similarly situated v. CARDINAL HEALTH,
INC., an Ohio corporation; and DOES 1 through 100, inclusive; Case
No. 37-2019-00068269-CU-OE-CTL (Cal. Super., San Diego Cty., Dec.
23, 2019), is brought for violation of California's Labor Code,
Code of Regulations, Industrial Wage Commission Wage Orders, and
Business & Professions Code, arising from the Defendants' failure
to pay warehouse workers for all hours worked.
According to the complaint, Cardinal Health systematically
underpays these warehouse employees, including the Plaintiffs, by
refusing to pay them for all hours worked. Cardinal Health also
fails to pay the warehouse workers all of the overtime they are due
and refuses to provide all of the meal and rest breaks they are
entitled to under California law. As a result of Cardinal Health's
unlawful procedures, it systematically underpays employees their
regular wages, and because employees typically work more than eight
hours in a day or 40 in a week, they also lose time payable at
their overtime rate.
Cardinal Health's unlawful policy of requiring off-the-clock work
also results in incorrect wage statements, which fail to accurately
reflect all hours worked and compensation due, among other things,
the Plaintiffs contend. The under-compensation of warehouse
employees also means Cardinal Health fails to pay all wages due
upon termination. Finally, Cardinal Health also fails to provide
all required meal and rest breaks to its warehouse employees, says
the complaint.
The Plaintiffs worked for the Defendant as warehouse employees in
the State of California.
Cardinal Health is a global, integrated healthcare services and
products company with locations throughout California and
beyond.[BN]
The Plaintiffs are represented by:
Craig M. Nicholas, Esq.
Alex M. Tomasevic, Esq.
NICHOLAS & TOMASEVIC, LLP
225 Broadway, 19th Floor
San Diego, CA 92101
Phone: (619) 325-0492
Facsimile: (619) 325-0496
Email: cnicholas@nicholaslaw.org
atomasevic@nicholaslaw.org
- and -
Noam Glick, Esq.
GLICK LAW GROUP, PC
225 Broadway, Suite 2100
San Diego, CA 92101
Phone: (619) 382-3400
Fax: (619) 393-0154
Email: noam@glicklawgroup.com
CASCADE CAPITAL: Collection Letter Violates FDCPA, Zweemer Claims
-----------------------------------------------------------------
James Zweemer, individually and on behalf of all others similarly
situated v. Cascade Capital, LLC Series A, Synergetic
Communication, Inc. and John Does 1-25, Case No. 1:19-cv-02319-UNA
(D. Del., Dec. 20, 2019), accuses the Defendant of violating the
Fair Debt Collections Practices Act.
Some time prior to July 10, 2019, an obligation was allegedly
incurred by the Plaintiff to Santander Consumer USA Inc. Defendant
Cascade, a debt collector and subsequent owner of the Santander
debt, contracted with Defendant Synergetic to collect the alleged
debt. On July 10, 2019, Defendant Synergetic sent the Plaintiff an
initial contact notice regarding the alleged debt owed.
The Plaintiff contends that the Letter does not meet the
requirements of the FDCPA, as interpreted by the Third Circuit,
because it falsely omits the requirement of the "G Notice" in the
first sentence by leaving out the requirement that a consumer must
dispute in writing. In omitting the writing requirement, the
Defendants' falsely communicate the consumer's requirements under
the FDCPA, says the complaint.
The Plaintiff is a resident of the State of Delaware, County of
Kent.
The Defendant Cascade Capital LLC Series A is a "debt
collector."[BN]
The Plaintiff is represented by:
Antranig Garibian, Esq.
GARIBIAN LAW OFFICES, P.C.
1010 N. Bancroft Pkwy., Suite 22
Wilmington, DE 19805
Phone: (302) 722-6885
Email: ag@garibianlaw.com
CASHCALL INC: Court Grants Certification in MacDonald Class Suit
----------------------------------------------------------------
Judge Madeline Cox Arleo of the U.S. District Court for the
District of New Jersey granted certification in the class action
captioned JOHN S. MacDONALD, et. al., Plaintiffs, v. CASHCALL,
INC., et al., Defendants, Civil Action No. 16-2781. (D.N.J.).
The class action complaint seeks to recover damages for unlawfully
originated short term loans. In brief, Plaintiffs allege that
Defendants lent them money at exorbitant interest rates, in
violation of state and federal law. They seek to represent a class
of plaintiffs who made payments on those loans.
Plaintiffs seek certification of two classes, a four-year class and
a six-year class. Other than the date on which each class period
begins, the two classes are identically defined as: All individuals
who, on or after May 17, 2010 or May 17, 2012, made payments to one
or more Defendants on loans originated by the Western Sky
Enterprise where the borrower was located in the State of New
Jersey at the time the loan was originated.
In the present case, Defendants have stipulated that 11,158
individuals provided a New Jersey address on loan agreements
executed on or after May 17, 2010 (the Six Year Class), and that
7,520 individuals listed a New Jersey address on loan agreements
executed on or after May 17, 2012 (the Four Year Class). Defendants
do not dispute that these figures show the class is sufficiently
numerous. The Court therefore finds that Plaintiffs have satisfied
the numerosity requirement.
The Court finds that common questions predominate over individual
ones, and for that reason, Plaintiffs have satisfied Rule
23(a)(2)'s less demanding commonality requirement. For the sake of
completeness, the Court also finds that there are common questions
of law and fact. As to each class, the questions of whether
Defendants charged interest at rates in excess of those permitted
by New Jersey law will be common, as will questions of whether
Defendants and Western Sky together formed an enterprise sufficient
for liability under RICO.
The Court further finds that Plaintiffs' claims are sufficiently
similar to those of the absent class members to render them typical
under Rule 23(a)(3).
Plaintiffs here are adequate representatives of the class, the
Court opines. There is nothing in the record to suggest that either
proposed class representative has a claim or interest antagonistic
to the remainder of the class: both MacDonald and Spearman took out
loans from Western Sky allegedly at usurious interest rates. The
only potential difference between the named plaintiffs here and the
remainder of the classes is that Spearman took out multiple loans
and allegedly had a positive experience with Western Sky. But this
argument supports certification, as she has potentially suffered
more damages from usury by taking out more loans.
The Court further finds all class counsel adequate.
The Court will accept Plaintiffs' offer, such that the class
definition will cover:
All individuals who, on or after May 17, 2010 or May 17,
2012, made payments to one or more Defendants on loans
originated by Cashcall, Inc., WS Funding, LLC, Delbert
Services Corp, J. Paul Reddam, or Western Sky Financial,
LLC where the borrower was a New Jersey resident.
Each class is therefore sufficiently ascertainable to be certified,
the Court notes.
Because the Rule 23(b)(3) factors are satisfied, the Court finds
that the class action is superior to other methods of
adjudication.
The Court concludes that Plaintiffs have shown that common
questions will predominate for each of their claims in this
action.
The Court also finds that Plaintiffs have shown that common
questions predominate as to their usury cause of action.
The Court further finds that Plaintiffs have shown that they can
use common evidence to prove their Consumer Fraud Act (CFA) claims,
and that common questions predominate. Namely the nearly identical,
allegedly usurious loan agreements, which caused an out of pocket
loss in the form of usurious interest.
Plaintiffs have also shown that common issues predominate on their
unjust enrichment claim, the Court adds.
Accordingly, Plaintiffs' motion for class certification is GRANTED
and the class, as modified, is certified, Judge Arleo ordered.
A full-text copy of Judge Arleo's October 31, 2019 Opinion is
available at https://tinyurl.com/y5bcrjml from Leagle.com
JOHN S. MACDONALD, Plaintiff, represented by PATRICIA A. BARASCH ,
SCHALL & BARASCH, LLC & RICHARD M. SCHALL , SCHALL & BARASCH, LLC,
110 Marter Ave., Suite 105, Moorestown, NJ 08057
JESSICA C. SPEARMAN, Plaintiff, represented by PATRICIA A. BARASCH
, SCHALL & BARASCH, LLC.
CASHCALL, INC., WS FUNDING, LLC, DELBERT SERVICES CORP. & J. PAUL
REDDAM, Defendants, represented by ANDREW MUSCATO -
andrew.muscato@skadden.com - SKADDEN, ARPS, SLATE, MEAGHER & FLOM,
LLP & JENNIFER ZOE GINDIN - jennifer.gindin@skadden.com - SKADDEN
ARPS SLATE MEAGNER & FLAM LLP.
CHOICE HOTELS: Muhammad Sues Over Blind-Inaccessible Web Site
-------------------------------------------------------------
Rasul Muhammad, on behalf of himself and all others similarly
situated v. CHOICE HOTELS INTERNATIONAL, INC., Case No.
1:19-cv-08330 (N.D. Ill., Dec. 20, 2019), is brought against the
Defendant to enforce Title III of the Americans with Disabilities
Act arising from its blind-inaccessible Web site,
http://www.cambriachicago.com/.
By failing to make its Web site available in a manner compatible
with computer screen reader programs, CHOICE HOTELS, a public
accommodation subject to Title III, deprives blind and
visually-impaired individuals the benefits of its online goods,
content, and services--all benefits it affords nondisabled
individuals--thereby increasing the sense of isolation and stigma
among these Americans that Title III was meant to redress, the
Plaintiff contends.
The Plaintiff says he has attempted to use Defendant's Website at
least once in the past. Unfortunately, because of CHOICE HOTELS's
failure to build its Web site in a manner that is compatible with
screen reader programs, he is unable to understand, and thus is
denied the benefit of, much of the content and services he wishes
to access or use, says the complaint.
The Plaintiff is a visually-impaired and legally blind person who
requires screen-reading software to read Web site content using his
computer.
The Defendant is a hotel chain that owns and operates its Web
site.
The Plaintiff is represented by:
R. Joseph Kramer, Esq.
KRAMER INJURY LAW LLC
225 W. Washington Street, Suite 2200
Chicago, IL 60606
Phone: (312) 775-1012
Fax: (312) 626-2408
Email: Joe@rjklawyer.com
CIRCLE K STORES: Popejoy Labor Suit Removed to E.D. California
--------------------------------------------------------------
The lawsuit titled Heather Popejoy, on behalf of herself and others
similarly situated v. CIRCLE K STORES, INC., a Delaware
Corporation; and DOES 1 to 10, Inclusive, Case No. 19CV04994, was
removed from the Superior Court of California, County of Merced, to
the U.S. District Court for the Eastern District of California on
Dec. 20, 2019.
The District Court Clerk assigned Case No. 1:19-at-00921 to the
proceeding.
In this case, the putative class members worked at least 200,000
workweeks during the class period. The collective average hourly
pay rate for all putative class members during the class period is
at least $10.50 per hour. The Plaintiff's second and third causes
of action are for unpaid meal period premiums and unpaid rest
period premiums. The Plaintiff's fourth cause of action is for
unpaid waiting time-penalties.[BN]
The Defendants are represented by:
Maria C. Rodriguez, Esq.
Christopher A. Braham, Esq.
Marjorie C. Soto, Esq.
MCDERMOTT WILL & EMERY LLP
2049 Century Park East, Suite 3200
Los Angeles, CA 90067-3206
Phone: +1 310 277 4110
Facsimile: +1 310 277 4730
Email: mcrodriguez@mwe.com
cbraham@mwe.com
mcsoto@mwe.com
COVINGTON, KY: Fails to Serve Demolition Order, Ky. Tax Bill Says
-----------------------------------------------------------------
Ky. Tax Bill Servicing, Inc., individually and on behalf of those
individual members of a class of similarly situated person or
corporations v. CITY OF COVINGTON, EVANS LANDSCAPING, INC., J.P.
EXCAVATING, INC., U.S. BANK CUSTODIAN TLCF, 2012A, LLC, KENTUCKY
TAX LIEN FUND, LLC, TAX LIEN SERVICE CORP., UNITED TAC SERVICE,
LLC, KENTUCKY TAX COMPANY, LLC, GRSAN-Z, LLC, BLUEGRASS, TAC LIEN
BUREAU, LLC, HARMONY ALLIANCE, LLC, KEITH RILEY, SKD1, LLC, WAKA
BRAUN, U.S. BANK, AS CUSTODIAN FOR SASS MUNI, V, DTR, AMERICAN TAX
FUNDING, LLC, TAX EASE LIEN SERVICING, LLC, CARDINAL LIEN SERVICES,
LLC, Case No. 2:19-cv-00188-DLB-CJS (E.D. Ky., Dec. 23, 2019),
arises from the Defendants' actions relating to demolition that
violate the Due Process clause of the 14th Amendment to the United
States Constitution.
Each year, the country clerk in each Kentucky County conducts a
sale of delinquent country and state real estate taxes. The
procedures or the sales are outlined in Ky. Rev. Stat. In-order to
purchase bills; a purchaser must register and be approved by the
Kentucky Revenue Cabinet. The Plaintiff purchased tax bills
beginning in 2010 and was registered purchaser of tax bills with
the Kentucky Revenue Cabinet. Specifically, the Plaintiff purchased
certificated of delinquency for the number of properties in the
City of Covington. The demolition of these properties by J.P.
Excavating or Evans Landscaping at the direction of the City of
Covington is the subject matter of this civil action.
Defendant City of Covington failed to serve the Plaintiff with the
demolition orders as it was required to do prior to demolishing
building under the Kentucky law, the Plaintiff alleges. The City
dialed to disclose actions it was administratively taking while
judicial proceedings were ongoing regarding the subject
properties.
As a result of the action of the City and other Defendants, the
Plaintiff, has been damaged. The Defendant's action are extreme,
fundamentally discriminatory, are an abuse of government power
shocking the conscience are legally irrational not sufficiently
keyed to any legitimate state interest, says the complaint.
The Plaintiff is a registered third-party purchaser of certificated
of delinquency in Kenton, Kentucky.
The Defendant is a home rule municipality and a municipal
corporation governed under the laws of the Commonwealth of
Kentucky.[BN]
The Plaintiff is represented by:
Steven Joseph Mergele, Esq.
P.O. Box 2613
Covington, KY 41012
Phone: (859) 982-0555
Facsimile: (859) 982-0555
Email: sjm4880@aol.com
CREW INT'L: Hartanovich Sues Over False Marketing of Cali White
---------------------------------------------------------------
Samantha Hartanovich, on behalf of herself and others similarly
situated v. CREW INTERNATIONAL, LLC, Case No. 1:19-cv-09577
(S.D.N.Y., Dec. 23, 2019), is brought against the Defendant for its
false advertising and unfair and deceptive marketing practices in
connection with the sale of a line of dental products under the
brand name Cali White, which contain activated charcoal.
Activated charcoal is highly porous and has adsorptive qualities
that can be useful in certain contexts. In recent years, health and
beauty products containing activated charcoal have become a
consumer sensation. Marketers, celebrities and social media
influencers tout a variety of activated charcoal products for
purported 'detoxifying' properties and other enhanced wellbeing and
health benefits. Consumers have been willing to pay a premium for
these charcoal products.
Cali White's marketing strategy has been very successful, and the
Charcoal Dentifrices have become one of the top sellers in its
product category. However, that success is built around messaging
that is misleading and deceptive to consumers, and that omits
material information concerning the safety and efficacy of use of
charcoal in oral care.
The Federal Trade Commission requires that marketers ensure that
advertising claims are truthful, not misleading, and supported by a
reasonable basis before disseminating such claims. The FTC and the
Federal Drug Administration further require that, for the types of
products and claims at issue, Cali White must have competent and
reliable scientific evidence to substantiate the claims conveyed.
However, despite its legal obligations, it does not appear Cali
White possessed or possesses the requisite evidence to substantiate
its claims concerning the benefits and safety of its Charcoal
Dentifrices. In fact, it appears such evidence does not actually
exist.
According to the complaint, the consensus of respected dentists,
researchers and industry experts is that there is a dearth of
scientific substantiation on the safety and efficacy of activated
charcoal in dentifrice, and risk of harm. For example, in 2017,
findings published in the Journal of the American Dental
Association (JADA) concluded that there is insufficient laboratory
or clinical data to substantiate the safety and efficacy of
dentifrice containing activated charcoal, and cautioned against its
use.
Notably, the American Dental Association ("ADA") has not approved
any charcoal dentifrices for its ADA Seal of Acceptance (the "ADA
Seal"). The ADA Seal certifies the safety and efficacy of a
dentifrice, based on clinical data and research.
Cali White knew or should have known that many of its claims
regarding the Charcoal Dentifrices lacked a credible basis or
substantiation, and that they were misleading, deceptive, and/or
outright false, the Plaintiff contends. The Plaintiff adds that it
also omitted material facts, including that scientific literature
counter-indicates the safety and efficacy of charcoal in oral care
use. Such representations and omissions were material and likely to
deceive a reasonable consumer, yet Cali White nonetheless proceeded
with its marketing campaign, and continues to do so, says the
complaint.
The Plaintiff purchased the toothpaste in reliance on the
representations made in Cali White's marketing and advertisements
online and on the toothpaste packaging and labeling.
The Defendant is an oral care company.[BN]
The Plaintiff is represented by:
William B. Federman, Esq.
FEDERMAN & SHERWOOD
10205 North Pennsylvania Ave.
Oklahoma City, OK 73120
Phone: (405) 235-1560
Facsimile: (405) 239-2112
Email: wbf@federmanlaw.com
DAVITA INC: Still Defends Peace Officers' Annuity and Benefit Suit
------------------------------------------------------------------
DaVita Inc. said in its Form 10-Q Report filed with the Securities
and Exchange Commission on November 7, 2019, for the quarterly
period ended September 30, 2019, that the company continues to
defend the Peace Officers' Annuity and Benefit Fund of Georgia
securities class litigation.
On February 1, 2017, the Peace Officers' Annuity and Benefit Fund
of Georgia filed a putative federal securities class action
complaint in the U.S. District Court for the District of Colorado
against the Company and certain executives.
The complaint covers the time period of August 2015 to October 2016
and alleges, generally, that the Company and its executives
violated federal securities laws concerning the Company's financial
results and revenue derived from patients who received charitable
premium assistance from an industry-funded non-profit organization.
The complaint further alleges that the process by which patients
obtained commercial insurance and received charitable premium
assistance was improper and "created a false impression of DaVita's
business and operational status and future growth prospects."
In November 2017, the court appointed the lead plaintiff and an
amended complaint was filed on January 12, 2018. On March 27, 2018,
the Company and various individual defendants filed a motion to
dismiss. On March 28, 2019, the U.S. District Court for the
District of Colorado denied the motion to dismiss.
The Company answered the complaint on May 28, 2019. The Company
disputes these allegations and intends to defend this action
accordingly.
No further updates were provided in the Company's SEC report.
DaVita Inc. provides kidney dialysis services for patients
suffering from chronic kidney failure or end stage renal disease
(ESRD). The company operates kidney dialysis centers and provides
related lab services in outpatient dialysis centers. The company
was formerly known as DaVita HealthCare Partners Inc. and changed
its name to DaVita Inc. in September 2016. DaVita Inc. was founded
in 1994 and is headquartered in Denver, Colorado.
DELTA DENTAL: Kottemann Sues Over Allocation of Insurance Market
----------------------------------------------------------------
Kottemann Orthodontics, P.L.L.C., individually and on behalf of all
other similarly situated, v. Delta Dental Insurance Company, et
al., Case No. 3 0:19-cv-03139 (D. Minn., Dec. 20, 2019), is brought
on behalf of dental practices to enjoin an ongoing conspiracy
between Delta Dental's many inter-related entities to allocate
markets for dental insurance across the United States in violation
of the Sherman Act.
The Defendants are Delta Dental Insurance Company; DeltaCare USA;
Delta USA Inc.; Delta Dental Plans Association; Delta Dental
Insurance Company Alabama; Delta Dental of Alaska; Delta Dental of
Arizona; Delta Dental of Arkansas; Delta Dental of California;
Delta Dental of Colorado; Delta Dental of Connecticut; Delta Dental
of Delaware; Delta Dental of the District of Columbia; Delta Dental
of Florida; Delta Dental Insurance Company-Georgia; Hawaii Dental
Service; Delta Dental of Idaho; Delta Dental of Illinois; Delta
Dental of Indiana; Delta Dental of Iowa; Delta Dental of Kansas;
Delta Dental of Kentucky; Delta Dental Insurance
Company–Louisiana; Delta Dental of Maryland; Delta Dental of
Massachusetts; Delta Dental of Michigan; Delta Dental of Minnesota;
Delta Dental Insurance Company-Mississippi; Delta Dental of
Missouri; Delta Dental Insurance Company–Montana; Delta Dental of
Nebraska; Delta Dental Insurance Company-Nevada; Delta Dental of
New Jersey; Delta Dental of New Mexico; Delta Dental of New York;
Delta Dental of North Carolina; Delta Dental of North Dakota;
Northeast Delta Dental (of Maine, New Hampshire and Vermont); Delta
Dental of Ohio; Delta Dental of Oklahoma; Delta Dental of Oregon;
Delta Dental of Pennsylvania; Delta Dental of Puerto Rico; Delta
Dental of Rhode Island; Delta Dental of South Carolina; Delta
Dental of South Dakota; Delta Dental of Tennessee; Delta Dental
Insurance Company-Texas; Delta Dental Insurance Company-Utah; Delta
Dental of Virginia; Delta Dental of Washington; Delta Dental of
West Virginia; Delta Dental of Wisconsin; and Delta Dental of
Wyoming.
According to the complaint, the Defendants are engaging in and have
engaged in per se illegal market division by virtue of Delta's
aggregation of unlawful monopsony power in the market for dental
insurance across the United States. These market allocation
agreements are reached and implemented by Delta Dental through its
artificial territorial division of that market among the Delta
Dental State Insurers.
The Defendants have, thus, engaged in prohibited market allocation
by entering into per se illegal agreements that: restrict
competition between the Delta Dental State Insurers when operating
under the "Delta Dental" brand (the "Market Allocation
Conspiracy"); reduce the amounts of reimbursement paid by the Delta
Dental State Insurers to the dentists and dental practices who
provide services to patients under Delta Dental insurance plans
(the "Price Fixing Conspiracy"), and restrict competition between
the Delta Dental State Insurers when operating under non-Delta
Dental brands (the "Revenue Restriction Conspiracy").
The Delta Dental State Insurers are predominantly not-for-profit
dental services corporations that operate in defined state or
multi-state territories across the United States. They contract
with dentists and dental practices--like the Plaintiff--that accept
Delta Dental insurance to reimburse the providers for dental
services provided to Delta Dental insureds under Delta Dental
insurance contracts. The Delta Dental State Insurers are supported
in turn by the Delta Dental Plans Association, a nationwide entity
that acts as an administrator and watchdog for the Delta Dental
insurance plans offered by the Delta Dental State Insurers to the
Delta Dental Providers and their patients.
All three of the Market Allocation Conspiracy, the Price Fixing
Conspiracy, and the Revenue Restriction Conspiracy have reduced
competition in the market for dental insurance in each of the
territories in which the Delta Dental State Insurers are based and
across the U.S. This decreased competition has harmed the Delta
Dental Providers (in the form of reduced choice in the dental
insurance plans they can accept from patients, and lower
reimbursement rates paid to them under those plans), and has also
harmed dental plan sponsors and members (in the form of higher
premiums paid to Delta Dental in a non-competitive market, and
through lower quality services offered to patients by the Delta
Dental Providers that have been starved of reimbursement revenue by
the Defendants' artificially low prices), says the complaint.
Plaintiff Kottemann Orthodontics, P.L.L.C. is a dentistry
professional association organized under the laws of the state of
Minnesota.
The Delta Dental State Insurers are predominately not-for-profit
entities that provide insurance plans for dental goods and services
in their respective states or multi-state areas.[BN]
The Plaintiff is represented by:
Daniel E. Gustafson, Esq.
Daniel C. Hedlund, Esq.
Michelle J. Looby, Esq.
David A. Goodwin, Esq.
Daniel J. Nordin, Esq.
GUSTAFSON GLUEK PLLC
120 South 6th Street, Suite 2600
Minneapolis, MN 55402
Phone: (612) 333-8844
Facsimile: (612) 339-6622
Email: dgustafson@gustafsongluek.com
dhedlund@gustafsongluek.com
mlooby@gustafsongluek.com
dgoodwin@gustafsongluek.com
dnordin@gustafsongluek.com
- and -
Kenneth A. Wexler, Esq.
Justin N. Boley, Esq.
Melinda J. Morales, Esq.
WEXLER WALLACE LLP
55 W. Monroe Street, Suite 3300
Chicago, IL 60603
Phone: 312-346-2222
Email: kaw@wexlerwallace.com
jnb@wexlerwallace.com
mjm@wexlerwallace.com
DENTSPLY SIRONA: Awaits Court's Decision in Bid to Dismiss Suit
---------------------------------------------------------------
Dentsply Sirona Inc. said in its Form 10-Q Report filed with the
Securities and Exchange Commission on November 7, 2019, for the
quarterly period ended September 30, 2019, that the company is
awaiting the decision of the court on its motion to dismiss the
putative class action suit before the U.S. District Court for the
Eastern District of New York.
On December 19, 2018, a related putative class action was filed in
the U.S. District Court for the Eastern District of New York
against the Company and certain individual defendants (the "Federal
Class Action").
The plaintiff makes similar allegations and asserts the same claims
as those asserted in the State Court Class Action. In addition, the
plaintiff alleges that the defendants violated U.S. securities laws
by making false and misleading statements in quarterly and annual
reports and other public statements between February 20, 2014, and
August 7, 2018.
The plaintiff asserts claims on behalf of a putative class
consisting of (a) all purchasers of the Company's stock during the
period February 20, 2014 through August 7, 2018; and (b) former
shareholders of Sirona who exchanged their shares of Sirona stock
for shares of the Company's stock in the Merger.
The Company's motion to dismiss the amended complaint was served on
August 15, 2019. Briefing was completed on October 21, 2019 and the
Company is awaiting the decision of the court.
Dentsply Sirona Inc. designs, develops, manufactures, and markets
various dental and oral health products, and other consumable
healthcare products primarily for the professional dental market
worldwide. The company operates in two segments, Technologies &
Equipment; and Consumables. The company was formerly known as
DENTSPLY International Inc. and changed its name to DENTSPLY SIRONA
Inc. in February 2016. DENTSPLY SIRONA Inc. was founded in 1899 and
is headquartered in York, Pennsylvania.
DENTSPLY SIRONA: Continues to Defend Consolidated N.Y. Suit
-----------------------------------------------------------
Dentsply Sirona Inc. said in its Form 10-Q Report filed with the
Securities and Exchange Commission on November 7, 2019, for the
quarterly period ended September 30, 2019, that the consolidated
class action suit pending before the Supreme Court of the State of
New York, County of New York is ongoing.
On June 7, 2018, and August 9, 2018, two putative class action
suits were filed, and later consolidated, in the Supreme Court of
the State of New York, County of New York claiming that the Company
and certain individual defendants, violated U.S. securities laws
(the "State Court Class Action") by making material
misrepresentations and omitting required information in the
December 4, 2015 registration statement filed with the SEC in
connection with the Merger.
The amended complaint alleges that the defendants failed to
disclose, among other things, that a distributor had purchased
excessive inventory of legacy Sirona products and that three
distributors of the Company's products had been engaging in
anticompetitive conduct.
The plaintiffs seek to recover damages on behalf of a class of
former Sirona shareholders who exchanged their shares for shares of
the Company's stock in the Merger.
The Company has filed motions to dismiss the amended complaint, to
stay discovery pending resolution of the motion to dismiss, and to
stay all proceedings pending resolution of the Federal Class Action
described below.
On August 2, 2019, the Court denied the Company's motions to stay
discovery and to stay all proceedings. On August 21, 2019, the
Company filed a notice of appeal of that decision. Briefing has not
yet commenced on that appeal.
On September 26, 2019, the Court granted the Company's motion to
dismiss all claims. The associated judgment was entered on
September 30, 2019. On October 9, 2019, the plaintiffs moved by
order to show cause to vacate or modify the judgment and grant
plaintiffs leave to amend their complaint.
The Company's opposition to that motion was due on November 8,
2019, and the reply was due November 29, 2019, with a hearing date
scheduled for December 11, 2019.
Dentsply Sirona Inc. designs, develops, manufactures, and markets
various dental and oral health products, and other consumable
healthcare products primarily for the professional dental market
worldwide. The company operates in two segments, Technologies &
Equipment; and Consumables. The company was formerly known as
DENTSPLY International Inc. and changed its name to DENTSPLY SIRONA
Inc. in February 2016. DENTSPLY SIRONA Inc. was founded in 1899 and
is headquartered in York, Pennsylvania.
DENTSPLY SIRONA: Olivares Suit v. Futuredontics Still Ongoing
-------------------------------------------------------------
Dentsply Sirona Inc. said in its Form 10-Q Report filed with the
Securities and Exchange Commission on November 7, 2019, for the
quarterly period ended September 30, 2019, that Futuredontics, Inc.
continues to defend a class action lawsuit initiated by Henry
Olivares.
On January 25, 2018, Futuredontics, Inc. received service of a
purported class action lawsuit brought by Henry Olivares and other
similarly situated individuals in the Superior Court of the State
of California for the County of Los Angeles.
In January 2019, an amended complaint was filed adding another
named plaintiff, Rachael Clarke, and various claims.
The plaintiff class alleges several violations of the California
wage and hours laws, including, but not limited to, failure to
provide rest and meal breaks and the failure to pay overtime.
The parties have engaged in written and other discovery. On
February 5, 2019, Plaintiff Calethia Holt (represented by the same
counsel as Mr. Olivares and Ms. Clarke) filed a separate
representative action in Los Angeles Superior Court alleging a
single violation of the Private Attorneys' General Act that is
based on the same underlying claims as the Olivares/Clarke lawsuit.
On April 5, 2019, Plaintiff Kendra Cato filed a similar action in
Los Angeles Superior Court alleging a single violation of the
Private Attorneys' General Act that is based on the same underlying
claims as the Olivares/Clarke lawsuit.
The Company continues to vigorously defend against these matters.
No further updates were provided in the Company's SEC report.
Dentsply Sirona Inc. designs, develops, manufactures, and markets
various dental and oral health products, and other consumable
healthcare products primarily for the professional dental market
worldwide. The company operates in two segments, Technologies &
Equipment; and Consumables. The company was formerly known as
DENTSPLY International Inc. and changed its name to DENTSPLY SIRONA
Inc. in February 2016. DENTSPLY SIRONA Inc. was founded in 1899 and
is headquartered in York, Pennsylvania.
DEPOSITORS INSURANCE: Sylvester Sues Alleging Breach of Contract
----------------------------------------------------------------
Salvatore Sylvester, Alicia Edwards-Gutzman and Eunice Hill, on
behalf of themselves, and all others similarly situated v.
DEPOSITORS INSURANCE COMPANY, NATIONWIDE PROPERTY & CASUALTY
INSURANCE COMPANY, and NATIONWIDE MUTUAL INSURANCE COMPANY, Case
No. 191203184 (Pa. Com. Pleas., Dec. 20, 2019), is brought for
breach of contract based on the Defendants' practice of failing to
include full title registration and regulatory fees notwithstanding
its contractual obligation to do so.
The case is a class action lawsuit brought by the Plaintiffs, the
named insured under respective automobile policies issued for
private passenger auto physical damage including comprehensive and
collision coverage, which requires payment of "Actual Cash Value"
or "ACV." The ACV of a vehicle equates to the full cost to replace
the vehicle and such cost includes any mandatory state and local
costs and fees (Full Total Loss Payments or "FTLP") required to
replace the vehicle.
One of the coverages the Defendants offer is comprehensive and
collision coverage. The Plaintiffs allege that the Defendants
systematically underpaid not just the Plaintiffs but thousands of
other putative class members amounts the Defendants owed its
insureds for ACV losses for total loss vehicles insured with
comprehensive and collision coverage.
This lawsuit is brought by the Plaintiffs, on behalf themselves,
and on behalf of all other similarly situated insureds, who
suffered damages due to the Defendants' practice of refusing to pay
full ACV payments to first-party total loss insureds on physical
damage policies containing comprehensive and collision coverages.
Specifically, as a matter of policy, the Defendants fail to pay the
full title registration and regulatory fees (FTLP) in its
calculation of ACV when paying full total loss payment to its
insureds, says the complaint.
The Plaintiffs owned Insured Vehicles, which were insured under the
Insurance Policy issued by the Defendants.
The Defendants are private passenger auto insurance carriers
operating in Pennsylvania.[BN]
The Plaintiffs are represented by:
Jonathan Shub, Esq.
Kevin Laukaitis, Esq.
KOHN, SWIFT & GRAF, P.C.
1600 Market Street, Suite 2500
Philadelphia, PA 19103
Phone: (215) 238-1700
Email: jshub@kohnswift.com
klaukaitis@kohnswift.com
- and -
Edmund A. Normand, Esq.
Jacob L. Phillips, Esq.
NORMAND PLLC
Post Office Box 1400036
Orlando, FL 32814-0036
Phone: 407-603-6031
Email: iacob.phillips@mormandpllc.com
ed@ednormand.com
- and -
Scott Edelsberg, Esq.
EDELSBERG LAW, P.A.
19495 Biscayne Blvd #607
Aventura, FL 33180
Phone: 305-975-3320
Email: scott@edelsberglaw.com
- and -
Andrew J. Shamis, Esq.
SHAMIS & GENTILE, P.A.
14 NE 1st Ave., Suite 1205
Miami, FL 33132
Phone (305) 479-2299
Email: efilings@shamisgentile.com
- and -
Rachel Edelsberg, Esq.
DAPEER LAW, P.A.
3331 Sunset Avenue
Ocean, NJ 07712
Phone: 305-610-5223
Email: rachel@dapeer.com
DJO GLOBAL: Court Allows Dreifort to Amend Complaint
----------------------------------------------------
The United States District Court for the Southern District of
California issued an Order granting in part and denying in part
Defendants' Motion to Dismiss the case captioned DANIEL DREIFORT,
individually, and on behalf of all others similarly situated,
Plaintiffs, v. DJO GLOBAL INC., DJO, LLC, and DOES 1-20,
Defendants, Case No. 3:18-cv-02393-BTM-KSC (S.D. Cal.).
Defendants DJO Global, Inc. and DJO, LLC manufacture a "thick sole
walking boot". DJO sells the boot "both directly to consumers and
also indirectly through prescribing medical intermediaries."
Plaintiff was prescribed "an Aircast boot, manufactured by DJO" to
assist with an ankle injury. The boot's sole "is approximately 1-2
inches thick," which creates a "leg length discrepancy" between the
leg wearing the boot and the uninjured leg. After wearing the boot
for six days, Plaintiff herniated a disc in his back. He had
suffered from the same injury in 2007 and 2013. Plaintiff states he
was not warned about "the risk for a secondary injury as a result
of boot use." He also claims that DJO does not warn doctors of
these risks and that doctors prescribe boots to patients without
warning. Plaintiff alleges that his secondary injury "is typical
among the users of DJO manufactured thick sole boots."
DJO also sells "Evenup," "a product designed to equalize a
patient's healthy limb length and reduce body strain while walking
in a cast or walker." When Plaintiff was prescribed the boot, he
was not informed about Evenup. Plaintiff purchased the Evenup after
developing the back injury. He believes that Evenup "would have
prevented the back injury, or at least lessened or delayed it."
Plaintiff sued DJO for fraud, violations of California business
practices law, and product liability. Plaintiff alleges that
"[w]alking in the boot causes knee, hip, and back pain," and
permanent injury. DJO moved to dismiss.Plaintiff opposes the
motion.
The Court finds that Plaintiff has sufficiently alleged economic
injury. Plaintiff states he had to purchase an additional item
(Evenup) in order to make an allegedly incomplete product complete.
This expense qualifies as an economic injury. Though not pleaded,
any economic losses associated with Plaintiff's herniated disc --
such as lost wages or medical expenses -- would also qualify as
economic injuries.
The Court also considers whether Plaintiff alleges causation. He
claims that "DJO failed to make complete truthful representations
which would indicate the product should be used in conjunction with
a separate product, Evenup," which he later purchased. To the
extent that Plaintiff's claims are grounded in fraudulent
concealment, the Court has already determined that he has
established reliance. But to the extent that Plaintiff's claims are
rooted in fraudulent misrepresentation, he has not sufficiently
pled reliance. As DJO argues, Plaintiff has not claimed that he
"saw or was exposed to any advertisements or representations by DJO
prior to purchasing or using a DJO boot, much less that he relied
upon DJO's representations." Plaintiff cannot bring any claim
rooted in fraudulent misrepresentation if he was never actually
influenced by DJO statements. Plaintiff has pled standing for the
FAL and UCL causes of action to the extent that they are grounded
in a fraudulent concealment theory. But he has failed to
demonstrate standing for these causes of action to the extent that
they are grounded in fraudulent misrepresentation. Accordingly, the
motion to dismiss for lack of standing is GRANTED IN PART AND
DENIED IN PART based on the fraud theory alleged in these claims.
The Court GRANTS Plaintiff leave to amend his complaint. Defendants
shall file a response to the present or amended complaint.
A full-text copy of the District Court's October 28, 2019 Order is
available at https://tinyurl.com/y35ergf5 from Leagle.com
Daniel Dreifort, individually, and on behalf of all others
similarly situated, Plaintiff, represented by Scott Sanborn -
ss@scottsanborn.law - The Law Office of Scott Sanborn.
DJO Global, Inc. & DJO, LLC, Defendants, represented by Christopher
M. Young -christopher.young@dlapiper.com - DLA Piper US.
DNC SERVICES: 11th Cir. Affirms Wilding Suit Dismissal
------------------------------------------------------
The United States Court of Appeals, Eleventh Circuit issued an
Opinion affirming the District Court's judgment granting
Defendants' Motion to Dismiss the case captioned CAROL WILDING,
STANLEY RIFKEN, SHARON CRAWFORD, WILLIAM SCOTT FRANZ, DAVID
PULASKI, MARY JASMINE WELCH, JOSE ALBERTO GONZALEZ, JANE ELLEN
PLATTNER, KIM MARIE HOULE, et al., Plaintiffs-Appellants, v. DNC
SERVICES CORPORATION, DEBORAH WASSERMAN SCHULTZ,
Defendants-Appellees, Case No. 17-14194.
The plaintiffs in this putative class action are donors to the
Democratic National Committee, donors to the 2016 presidential
campaign of Senator Bernie Sanders, and voters affiliated with the
Democratic Party in various states. The defendants are the DNC and
its former chairwoman and current U.S. Representative Deborah
Wasserman Schultz. The plaintiffs essentially allege that during
the 2016 Democratic presidential primaries the DNC and Ms.
Wasserman Schultz improperly tipped the scales in favor of former
Secretary of State Hillary Clinton, who was challenging Senator
Sanders for the Democratic presidential nomination.
In their complaint against the DNC and Ms. Wasserman Schultz, the
plaintiffs asserted a number of common-law and statutory claims,
including fraud, negligent misrepresentation, and unjust
enrichment.
The DNC and Ms. Wasserman Schultz moved to dismiss the claims,
arguing both that the plaintiffs lacked Article III standing and
that they failed to state claims for relief.
The district court dismissed all six claims. It concluded that the
plaintiffs had not satisfied the injury-in-fact element of Article
III standing as to their negligence claim, the causation element as
to their fraud, negligent misrepresentation, CPPA, and unjust
enrichment claims, and the redressability element as to their
fiduciary duty claim.
To have standing, plaintiffs must establish that they (1) suffered
an injury in fact (2) that is fairly traceable to the challenged
conduct of the defendant and (3) that is likely to be redressed by
a favorable judicial decision.
Plaintiffs alleging fraud must state with particularity the
circumstances constituting fraud or mistake. Rule 9(b)'s
heightened pleading standard applies to negligent misrepresentation
claims asserted under Florida law because such claims sound in
fraud.
Pursuant to Rule 9(b), a plaintiff must allege: (1) the precise
statements, documents, or misrepresentations made; (2) the time,
place and person responsible for the statement (3) the content and
manner in which these statements misled him and (4) what the
defendants gained by the alleged fraud.A bare allegation of
reliance on alleged misrepresentations, bereft of any additional
detail, will not suffice under Rule 9(b).
The named plaintiffs representing the DNC donor class have not
satisfied Rule 9(b)'s pleading requirements. Specifically, they
have failed to allege with particularity the manner in which they
relied on the defendants' statements. For example, they did not
allege on which of the statements they relied.
The claims for fraud and negligent misrepresentation are therefore
dismissed.
Whether a plaintiff has Article III standing is a question distinct
from whether she has a statutory cause of action. The Court
concludes, for a number of reasons, that the CPPA claim of the DNC
donor class fails the plausibility standard set out in cases like
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 556-57 (2007).
As noted, the CPPA prohibits various unfair or deceptive trade
practices. It allows a consumer to bring an action seeking relief
from the use of a trade practice in violation of a law of the
District of Columbia. A consumer, in turn, is a person who does or
would purchase or receive consumer goods or services. As a result,
the CPPA does not cover all consumer transactions, and instead only
covers trade practices arising out of consumer-merchant
relationships.
The named plaintiffs representing the DNC donor class made their
donations directly to the DNC, which is a non-profit corporation.
Because there are no allegations that any of them purchased or
received any consumer goods or services, they are not consumers
under the CPPA.
The Court notes, as well, that the DNC is not subject to liability
under the CPPA for the conduct set out in the complaint. As the
plaintiffs alleged, the DNC is a non-profit entity, and the CPPA
limits the liability of non-profit organizations: An action brought
against a non-profit organization shall not be based on membership
in such organization, membership services, training or
credentialing services or any other transaction, interaction, or
dispute not arising from the purchase or sale of consumer goods or
services in the ordinary course of business, evidence suggests
that the D.C. Council acted specifically to shield non-profit
organizations from statutory liability for membership-related
disputes. Here the complaint frames a dispute between the DNC and
some of its supporters concerning organizational behavior.
Because there are no allegations that the DNC acted as a merchant
or sold or provided consumer goods and services to the plaintiffs,
the CPPA claim fails.
The elements of an unjust enrichment claim in Florida are a benefit
conferred upon a defendant by the plaintiff, the defendant's
appreciation of the benefit, and the defendant's acceptance and
retention of the benefit under circumstances that make it
inequitable for him to retain it without paying the value thereof.
The DNC and Ms. Wasserman Schultz argue that the unjust enrichment
claim of the DNC donor class fails because the complaint does not
allege facts which imply a contract as a matter of law, which they
say is required in Florida. They also contend that contributions to
political campaigns are not contracts, express or implied, and
assert that courts have rejected similar unjust enrichment claims.
Instead of responding to these arguments, and addressing the cases
cited by the defendants, the plaintiffs merely set out the elements
of an unjust enrichment claim and say without any elaboration that
they have alleged these elements.
The Court agrees with the defendants that the plaintiffs in the DNC
donor class have failed to state a claim for unjust enrichment.
Under Rule 8, a complaint must allege sufficient underlying facts
to make a claim plausible, and the mere formulaic recitation of
elements or legal conclusions will not suffice. And that pleading
standard applies to state-law claims litigated in federal court.
The unjust enrichment claim here contains no factual allegations
explaining (a) why Florida law would deem it necessary or
appropriate to imply a contract between the DNC and those who
contributed money to it, or (b) why it would be inequitable for the
DNC to retain the donations made by the members of the DNC donor
class. Absent any allegations as to the reasons for their
donations, the plaintiffs have not made out a plausible unjust
enrichment claim under Florida law.
The plaintiffs in the Democratic voter class separately alleged a
breach of fiduciary duty by the DNC and Ms. Wasserman Schultz. As
the Court explains, these plaintiffs have failed to allege an
injury-in-fact sufficient to confer Article III standing.
None of the plaintiffs in the Democratic voter class allege that
they made monetary contributions to the DNC. So, unlike the claims
asserted on behalf of the DNC and Sanders donor classes, the
fiduciary duty claim does not involve an allegation of direct or
even indirect economic harm.
The plaintiffs in the Democratic voter class do not allege any
injury resulting from the defendants' alleged breaches of their
fiduciary duty. The complaint says only that the plaintiffs in the
Democratic voter class were proximately damaged by the alleged
breaches. Indeed, the plaintiffs conceded at oral argument that the
complaint does not specify any resulting injuries.
Accordingly, the district court's order of dismissal is affirmed,
but the case is remanded so that the district court can amend its
order consistent with the 11th Circuit's opinion. The order should
dismiss the fraud, negligent misrepresentation, CPPA, and unjust
enrichment claims--which fail on the merits--with prejudice, and
dismiss the negligence and fiduciary duty claims--which fail for
lack of standing—without prejudice, rules the 11th Circuit.
A full-text copy of the 11th Circuit's October 28, 2019 Opinion is
available at https://tinyurl.com/y5mcelqh from Leagle.com.
Elizabeth Lee Beck - beckandlee.com - for Plaintiff-Appellant.
Cullin A. O'Brien- cullin@cullinobrienlaw.com - for
Plaintiff-Appellant.
Gregg Darrow Thomas – gthomas@tlolawfirm.com - for
Defendant-Appellee.
Jared Harrison Beck - jared@beckandlee.com - for
Plaintiff-Appellant.
Mark R. Caramanica, 601 South BoulevardTampa, FL 33606, for
Defendant-Appellee.
Elisabeth Frost – EFrost@perkinscoie.com - for
Defendant-Appellee.
Marc Erik Elias – MElias@perkinscoie.com - for
Defendant-Appellee.
Antonio Gabriel Hernandez - jsw@braultgraham.com - for
Plaintiff-Appellant.
Beverly Virues - beverlyl@beckandlee. com - for
Plaintiff-Appellant.
Bruce V. Spiva – Bspiva@perkinscoie.com - for
Defendant-Appellee.
Ruthzee Louijeune , Perkins Coie, 700 13 Th St NE Ste 600,
Washington, DC, 20002-4410, for Defendant-Appellee.
EFINANCIAL LLC: Fails to Pay Inside Sales Reps' OT Wage, Lee Says
-----------------------------------------------------------------
John Lee, on behalf of himself, individually, and on behalf of all
others similarly situated v. EFINANCIAL LLC, Case No. 1:19-cv-08351
(N.D. Ill., Dec. 20, 2019), is brought to redress the Defendant's
systematic, company-wide violations of the Fair Labor Standards Act
and the Illinois Minimum Wage Law by knowingly failing to pay the
Plaintiff and other similarly situated inside sales representatives
all earned overtime compensation due to them.
Specifically, the Defendants violated the FLSA and IMWL by failing
to include commissions in calculating the overtime rate paid to
inside sales representatives, Mr. Lee alleges. He contends that the
Defendant maintained a uniform corporate policy and practice of
paying inside sales representatives a base hourly rate of pay plus
sales commission.
The Defendant's failure to pay all earned overtime wages at the
proper rate was not in good faith, was willful, and done with
reckless disregard for the rights of Plaintiff and other inside
sales representative, says the complaint.
Plaintiff Lee was employed by the Defendant as a Senior Account
Executive at the Defendant's call center located in Chicago,
Illinois.
eFinancial is a Washington State corporation with a Chicago call
center.[BN]
The Plaintiff is represented by:
Teresa M. Becvar, Esq.
James B. Zouras, Esq.
Ryan F. Stephan, Esq.
STEPHAN ZOURAS, LLP
100 N. Riverside Plaza, Suite 2150
Chicago, IL 60606
Phone: (312) 233-1550
Fax: (312) 233-1560
Email: tbecvar@stephanzouras.com
jzouras@stephanzouras.com
rstephan@stephanzouras.com
EMPIRE RESORTS: Expects Merger Suits to be Voluntarily Dismissed
----------------------------------------------------------------
Empire Resorts, Inc. said in its Form 10-Q Report filed with the
Securities and Exchange Commission on November 7, 2019, for the
quarterly period ended September 30, 2019, that the company expects
that the Hercules Topco LLC merger related suits will be
voluntarily dismissed.
On August 18, 2019, Empire Resorts, Inc. entered into an Agreement
and Plan of Merger (the "Merger Agreement"), by and among Hercules
Topco LLC, a Delaware limited liability company ("Parent"),
Hercules Merger Subsidiary Inc., a Delaware corporation and a
wholly-owned subsidiary of Parent ("Merger Sub"), and the Company.
Parent and Merger Sub are affiliates of Kien Huat Realty III
Limited ("Kien Huat") and Genting Malaysia Berhard ("GenM").
Kien Huat, GenM and their respective affiliates are currently the
holders of approximately 86% of the voting power of the Company's
outstanding capital stock.
The Merger Agreement provides for, upon the terms and subject to
the conditions set forth in the Merger Agreement, the merger of
Merger Sub with and into the Company, with the Company surviving as
a subsidiary of Parent (the "Merger").
On October 8, 2019 and October 28, 2019, respectively, two putative
class action complaints challenging the Merger were filed in New
York State Supreme Court, Sullivan County.
The first Sullivan County case is captioned David Mullen v. Empire
Resorts, Inc. et al., Index No. E2019-2085 (the "Mullen State Court
Litigation").
The second Sullivan County case is captioned Julie Milano v. Empire
Resorts, Inc. et al., Index No. E2019-2207 (the "Milano
Litigation," and, collectively with the Mullen State Court
Litigation, the "Sullivan County Litigations").
The Sullivan County Litigations allege that the members of the
Board breached their fiduciary duties in connection with the
negotiation and approval of the Merger Agreement, as well as in
authorizing the disclosures made in the Company's preliminary proxy
statement filed with the SEC on September 24, 2019.
The Sullivan County Litigations further allege that each of the
Company, Parent, Merger Sub, Kien Huat, and GenM aided and abetted
the Board's alleged breaches of fiduciary duty. On October 28,
2019, the plaintiff in the Mullen State Court Litigation
voluntarily dismissed the Mullen State Court Litigation.
On October 15, 2019, October 18, and October 29, 2019,
respectively, three federal complaints challenging the Merger were
filed in the United States District Court for the District of
Delaware and the United States District Court for Southern District
of New York.
The Delaware federal case is captioned Adam Franchi v. Empire
Resorts, Inc. et al., Case No. 1:19-cv-01947-RGA (the "Franchi
Litigation") and the two New York federal cases are captioned David
Mullen v. Empire Resorts, Inc. et al., Case No. 1:19-cv-09632-LAK
(the "Mullen Federal Litigation" and Harold Litwin v. Empire
Resorts, Inc. et al., Case No. 1:19-cv-10026 (the "Litwin
Litigation," and, collectively with the Franchi Litigation, the
Milano Litigation and the Mullen Litigation, the "Merger
Litigations").
In the Franchi Litigation, Mullen Federal Litigation, and Litwin
litigation, each plaintiff asserts claims against the Company and
certain members of the Board under Section 14(a) of the Securities
Exchange Act of 1934 (the "Exchange Act") and Rule 14a-9
promulgated thereunder, as well as Section 20(a) of the Exchange
Act.
Each plaintiff alleges that the Company's definitive proxy
statement, filed with the SEC on October 11, 2019, was misleading
and omitted certain information with respect to the Merger.
Each of the Merger Litigations seeks, among other things, to enjoin
the Merger and recover damages, as well as an award of the
plaintiffs’ attorneys' fees and costs of the litigation. The
defendants deny all such allegations and believe the Merger
Litigations are without merit.
Furthermore, the defendants believe that the disclosures in the
Preliminary Proxy and the Proxy Statement are adequate under the
law. However, to alleviate the costs, risks and uncertainties
inherent in litigation and provide additional information to its
stockholders, on November 6, 2019, the Company entered into a
Memorandum of Understanding ("MOU") with the plaintiffs of the
Milano, Franchi, and Litwin Litigations, pursuant to which such
plaintiffs agreed to voluntarily dismiss their respective
complaints on or before November 11, 2019, subject to the Company's
filing of certain supplemental disclosures.
On November 6, 2019, the Company filed with the SEC a Current
Report on Form 8-K, which contained the supplemental disclosures as
set forth in the MOU. Accordingly, the Company expects the Milano,
Franchi, and Litwin Litigation plaintiffs to voluntarily dismiss
their respective complaints on or before November 11, 2019.
With respect to the Mullen Federal Litigation and, if they are not
voluntarily dismissed on or before November 11, 2019 in accordance
with the MOU, the other Merger Litigations, the defendants plan to
defend against all claims stated therein.
Empire Resorts, Inc. operates as a casino. The Company offers
gaming, raceway, poker room, bars, restaurants, and lounges. Empire
Resorts serves customers in the United States. The company is based
in Monticello, New York.
EXPERT JANITORIAL: Wash. App. Ct. Flips MWA Claims Dismissal
------------------------------------------------------------
The Court of Appeals of Washington, Division One issued an Opinion
reversing the Trial Court's judgment granting Defendants' Motion
for Summary Judgment in the case captioned OSCAR MENDOZA,
individually and as class representative, Appellant, v. EXPERT
JANITORIAL SERVICES, LLC, Defendant, FRED MEYER STORES, INC.,
Respondent, Case No. 77948-6-I (Wash. App.).
A group of janitors who worked in Fred Meyer stores in the Puget
Sound area filed suit alleging violations of the MWA by All
American Janitorial LLC (AAJ), M.H. Janitorial LLC (MHJ), Expert
Janitorial Services, LLC (Expert), and Fred Meyer. Fred Meyer
contracted out its janitorial work to Expert who in turn
subcontracted the work to AAJ and MHJ, who directly employed the
Espinoza janitors.
The trial court certified the class of Mendoza janitors. Fred Meyer
then moved for summary judgment, asserting that the Mendoza
janitors should be collaterally stopped by the Espinoza ruling that
Fred Meyer was not the janitors' joint employer under the MWA from
bringing their claims against Fred Meyer under the MWA.
The trial court agreed, concluding that the Mendoza janitors were
collaterally estopped on the issue of Fred Meyer's status as a
joint employer under a theory of virtual representation. The
Mendoza janitors appeal from the order dismissing their claims.
The Mendoza janitors contend that the trial court erred by
dismissing their claims against Fred Meyer on summary judgment.
This is so, the Mendoza janitors assert, because the trial court
incorrectly concluded that collateral estoppel barred their MWA
claims against Fred Meyer.
According to the Mendoza janitors, the application of collateral
estoppel to them was improper because they were not parties to, nor
in privity with parties to, the Espinoza lawsuit, and because
application of the equitable doctrine would work an injustice.
The Appellate Court reviews de novo a trial court's grant of
summary judgment.
The doctrine of collateral estoppel applies when the following four
factors are present: (1) identical issues (2) a final judgment on
the merits (3) the party against whom the plea is asserted must
have been a party to or in privity with a party to the prior
adjudication and (4) application of the doctrine must not work an
injustice on the party against whom the doctrine is to be applied.
The Mendoza janitors first contend that they were not parties to,
nor were they in privity with parties to, the Espinoza lawsuit such
that they should be collaterally estopped from asserting that Fred
Meyer is their joint employer under the MWA.
Fred Meyer concedes that the Mendoza janitors were not actual
parties to the Espinoza lawsuit, but asserts that they nevertheless
satisfy the party or party in privity requirement under the virtual
representation doctrine.
In response, the Mendoza janitors assert that (1) the virtual
representation doctrine is not applicable in the class action
context when the party against whom the doctrine is applied
attempted to join but was denied membership in the prior class
action lawsuit and (2) even if the doctrine was generally
applicable to such cases it does not support the application of
collateral estoppel to the Mendoza janitors' claims.
Under Washington law, the virtual representation doctrine provides
an exception to the collateral estoppel requirement that one be a
party or in privity with a party to the prior litigation. This
doctrine is applied cautiously so as to avoid unjustly depriving a
nonparty of his or her day in court.
Fred Meyer now wishes to avoid the primary consequence of its
opposition to the Mendoza janitors' request to be included in
Espinoza. a separate lawsuit. Fred Meyer asserts that
notwithstanding their exclusion by a court order promoted by Fred
Meyer, the Mendoza janitors could have intervened in the Espinoza
lawsuit at a later time to request that the trial court reconsider
its ruling, chose not to do so, and that this choice was a
sufficient tactical maneuver to permit application of the virtual
representation doctrine.
This is nonsense, says the Appellate Court.
First, Fred Meyer sought the order excluding the Mendoza janitors.
If, as Fred Meyer now asserts, reconsideration of that order was
appropriate or necessary to avoid prejudice to Fred Meyer, then
Fred Meyer should have sought reconsideration of that order. That
Fred Meyer declined to do so was a tactical decision by Fred Meyer.
When Fred Meyer requested the exclusion of the Mendoza janitors, it
was asserting that the Mendoza janitors needed to bring any claims
they had against Fred Meyer in a separate lawsuit. Fred Meyer must
now accept the consequence of its tactical decision.
Furthermore, the Mendoza janitors had good reason for declining to
intervene in Espinoza at a later time. Both the Espinoza janitors
and the Mendoza janitors are, and were at the time of the Espinoza
trial, represented by the same counsel. If, as Fred Meyer urges,
the Mendoza janitors were required to intervene and seek vacation
of the order excluding them from the Espinoza lawsuit in order to
ensure that they could ever have their day in court, it might well
have created a conflict of interest for the janitors' counsel.
This is so because successful intervention at that late stage might
well have delayed final resolution of the Espinoza janitors'
claims, pitting the Mendoza janitors' interest in obtaining their
day in court against the Espinoza janitors' interest in resolving
their claims as expeditiously as possible. The two groups of
janitors were not required to put their interests in opposition
merely to relieve Fred Meyer of the consequence of its litigation
strategy. Both sets of janitors were entitled to carry on with the
services of their chosen attorneys.
The Appellate Court analysis of the remaining factors similarly
distinguishes the present matter from Garcia and supports our
conclusion that the doctrine of virtual representation was not
properly applicable to the Mendoza janitors. Although it is
undisputed that the issue of joint employment was fully litigated
in Espinoza, the Mendoza janitors assert that the factors of
participation in the prior lawsuit and identical evidence are not
met here. The Mendoza janitors advance a sound argument.
The Mendoza janitors contend that the first factor of the virtual
representation analysis weighs against application of the doctrine
because most of the Mendoza janitors did not participate at all in
the Espinoza litigation, and none testified at trial in support of
the Espinoza janitors.
The Appellate Court agrees.
The only participation in Espinoza by any members of the Mendoza
class consisted of 11 janitors filing declarations regarding
whether they should be included in the Espinoza class with 5 in
favor of inclusion and 6 opposing inclusion and trial testimony
offered by 6 janitors on behalf of Expert and Fred Meyer. This
minimal participation by some of the Mendoza janitors, especially
when the bulk of the participation was in support of Fred Meyer's
side of the case, does not support application of the virtual
representation doctrine to the Mendoza janitors as a class.
The Mendoza janitors next aver that application of the virtual
representation doctrine is improper herein because the evidence and
testimony in a Mendoza trial will not be identical to that
presented in the Espinoza trial. This is so, they explain, because
they wish to present new evidence in a trial for the Mendoza
janitors regarding Expert's financial situation that could support
an inference that the janitors were economically dependent on Fred
Meyer.
Again, the Appellate Court agrees.
The trial court explicitly acknowledged that the evidence the
Mendoza janitors wished to present at trial was not identical to
the evidence presented in Espinoza, but then nevertheless concluded
that the new evidence does not warrant a new trial when the vast
amount of evidence regarding Fred Meyer's relationship to the
janitors will be identical to what was presented in Espinoza. This
is incorrect for several reasons. First, Garcia did not state that
the test is whether the evidence will be substantially similar
between the two cases. Rather, the standard is whether the evidence
and testimony will be identical.
Second, the trial court incorrectly described the Mendoza janitors'
request as a request for a new trial, but the Mendoza janitors have
never had a trial. Third, under the summary judgment standard, the
Mendoza janitors were entitled to the benefit of any inferences
that could be drawn from their new evidence. Evidence of Expert's
financial difficulties could support an inference that the Mendoza
janitors were economically dependent on Fred Meyer.
Additionally, the Mendoza janitors note that in Espinoza, a
critical witness, a Fred Meyer manager, was too ill to take the
stand during trial, resulting in the use of his deposition
testimony in place of live testimony. In a Mendoza trial, the
janitors will seek to have him present live testimony. This, too,
would be a significant difference from the evidence and testimony
presented in Espinoza.
Finally, a Mendoza trial will not include identical parties to
those in the Espinoza trial because Expert has settled with the
Mendoza janitors. This could result in changes to evidentiary
rulings or strategy that may permit or cause different evidence to
be admitted at trial.12 Thus, there are numerous possible
differences between a potential Mendoza trial and the Espinoza
trial. These weigh against application of the virtual
representation doctrine.
The Appellate Court concludes that the virtual representation
factors weigh against application of the doctrine. Fred Meyer has
failed to establish that the Mendoza janitors were parties, or in
privity with parties, to Espinoza as required to apply the doctrine
of collateral estoppel.
The Mendoza janitors next contend that even if the doctrine of
virtual representation was applicable to the janitors, application
of collateral estoppel was nevertheless improper herein because it
worked an injustice. This is so, the Mendoza janitors assert,
because they attempted to join the Espinoza class, but the trial
court ordered that they be excluded.
The Appellate Court agrees.
In support of their contention, the Mendoza janitors cite to Dean
v. Lehman, 143 Wn.2d 12, 18 P.3d 523 (2001). Therein, the wife of a
Department of Corrections (DOC) inmate brought a class action suit
against DOC challenging the validity of a statute mandating
deductions from all funds received by prison inmates. DOC asserted
that the class should be barred from suit under the doctrine of
collateral estoppel based on an earlier federal suit brought by the
inmates that raised the same claims.
In rejecting DOC's contention, our Supreme Court noted that the
wives had attempted to join the class in the federal action, but
were excluded by court order. The court stated that even if the
first three elements of collateral estoppel were satisfied in this
case, barring the Class' claims would clearly work an injustice.
The Class attempted, but was unsuccessful, in becoming a party to
the federal lawsuit.
The similarities between Dean and this matter are apparent. The
Mendoza janitors sought inclusion in the Espinoza class. The trial
court excluded them from the class. Thus, as in Dean, it would
clearly work an injustice to apply collateral estoppel.
The trial court erred by holding that the Mendoza janitors are
collaterally estopped from bringing their claims under the MWA
against Fred Meyer. Accordingly, the Appellate Court reverses the
trial court's order granting summary judgment and remand for
further proceedings.
A full-text copy of the Court of Appeals' October 28, 2019 Opinion
is available at https://tinyurl.com/yxmerdpg from Leagle.com.
David N. Mark , Washington Wage Claim Project, 810 3rd Ave Ste 500,
Seattle, WA, 98104-1619, William Joel Rutzick , Schroeter Goldmark
& Bender, 810 3rd Ave Ste 500, Seattle, WA, 98104-1657, Beau C
Haynes , Washington Wage Claim Project, 810 3rd Ave Ste 500,
Seattle, WA, 98104-1619, Counsel for Appellant(s).
Susan Kathleen Stahlfeld , Miller Nash Graham & Dunn LLP, 2801
Alaskan Way Ste 300, Pier 70, Seattle, WA, 98121-1128, Tara
O'hanlon , Miller Nash Graham & Dunn LLP, 2801 Alaskan Way Ste 300,
Pier 70, Seattle, WA, 98121-1128, Counsel for Respondent(s).
GENCO IMPORTING: Weathersby Sues Over Unpaid Tipped Minimum Wage
----------------------------------------------------------------
Vicki Weathersby, on behalf of herself and those similarly situated
v. GENCO IMPORTING INC. d/b/a MANITOBA'S, and RICHARD MANITOBA,
individually, Case No. 1:19-cv-11742 (S.D.N.Y., Dec. 23, 2019), is
seeking damages and costs against the Defendants for failing to pay
her the tipped minimum wage, in violation of the Fair Labor
Standards Act and the New York State Labor Law.
After November 2017, the Defendants ceased paying her and Bar staff
the tipped minimum wage altogether, Ms. Weathersby contends. She
asserts that she took home tips but did not receive wages for her
hours worked at the Bar. She held out hope that, as had been the
case in the past, the Bar would eventually make up for lost pay,
but the Defendants never compensated her for the tipped minimum
wage in 2018 or 2019.
At the same time, Mr. Manitoba regularly took cash from the bar for
his own personal expenses, Ms. Weathersby alleges. She says she
regularly complained about her unpaid wages, but the Defendants
ignored her complaints. Ultimately, in July 2019, the Bar closed.
Ms. Weathersby and her coworkers were left unpaid and out of work,
while Mr. Manitoba and Mr. Van Zandt continued their successful
music and entertainment careers, says the complaint.
Ms. Weathersby worked as a Bartender at the Bar from 2011 until the
Bar closed in July 2019.
Defendant Manitoba's is a bar located on Manhattan's Lower East
Side.[BN]
The Plaintiff is represented by:
Veronica S. Jung, Esq.
LAW OFFICES OF VERONICA S. JUNG, PLLC
200 Park Avenue, Suite 1700
New York, NY 10166
Phone: (212) 897-1981
Facsimile: (212) 682-0278
GEO GROUP: Trial in 2 Washington Cases Set for Trial in March 2020
------------------------------------------------------------------
The GEO Group, Inc.said in its Form 10-Q Report filed with the
Securities and Exchange Commission on November 7, 2019, for the
quarterly period ended September 30, 2019, that two Washington
cases are currently set for trial in March 2020.
Former civil immigration detainees at the Aurora Immigration
Processing Center filed a class action lawsuit on October 22, 2014,
against the Company in the United States District Court for the
District of Colorado.
The complaint alleges that the Company was in violation of the
Colorado Minimum Wages of Workers Act and the federal Trafficking
Victims Protection Act ("TVPA").
The plaintiff class claims that the Company was unjustly enriched
because of the level of payment the detainees received for work
performed at the facility, even though the voluntary work program
as well as the wage rates and standards associated with the program
that are at issue in the case are authorized by the Federal
government under guidelines approved by the United States Congress.
On July 6, 2015, the Court found that detainees were not employees
under the Colorado Minimum Wage Order and dismissed this claim. In
February 2017, the Court granted the plaintiff-class' motion for
class certification on the TVPA and unjust enrichment claims.
The plaintiff class seeks actual damages, compensatory damages,
exemplary damages, punitive damages, restitution, attorneys' fees
and costs, and such other relief as the Court may deem proper.
In the time since the Colorado suit was initially filed, three
similar lawsuits have been filed, two in Washington and one in
California. In Washington, one of the two lawsuits was filed on
September 9, 2017 by immigration detainees against the Company in
the U.S. District Court for the Western District of Washington.
The second lawsuit was filed on September 20, 2017 by the State
Attorney General against the Company in the Superior Court of the
State of Washington for Pierce County, which the Company removed to
the U.S. District Court for the Western District of Washington on
October 9, 2017.
In California, a class-action lawsuit was filed on December 19,
2017 by immigration detainees against the Company in the U.S.
District Court Eastern Division of the Central District of
California.
All three lawsuits allege violations of the respective state’s
minimum wage laws. However, the California lawsuit, like the
Colorado suit, also includes claims that the Company violated the
TVPA and California's equivalent state statute.
On September 27, 2019, the California plaintiff class filed a
motion for class certification of both California-based and
nationwide classes. The Company filed a response to this motion
disputing the plaintiff class' right to broad class treatment of
the claims at issue.
On July 2, 2019, the Company filed a Motion for Summary Judgment in
the Washington Attorney General’s Tacoma lawsuit based on the
Company's position that its legal defenses prevent the case from
proceeding to trial. The federal court in Washington denied the
Company's Motion for Summary Judgment on August 6, 2019.
However, on August 20, 2019, the Department of Justice filed a
Statement of Interest, which asked the Washington court to revisit
its prior denial of the Company's intergovernmental immunity
defense in the case.
While the Washington court ultimately elected not to dismiss the
case at the time, its order importantly declared that the Company's
intergovernmental immunity defense was legally viable, to be
ultimately determined at trial.
The two Washington cases are currently set for trial in March 2020.
The Company intends to take all necessary steps to vigorously
defend itself and has consistently refuted the allegations and
claims in these lawsuits. The Company has not recorded an accrual
relating to these matters at this time, as a loss is not considered
probable nor reasonably estimable at this stage of the lawsuits.
The Company establishes accruals for specific legal proceedings
when it is considered probable that a loss has been incurred and
the amount of the loss can be reasonably estimated. However, the
results of these claims or proceedings cannot be predicted with
certainty, and an unfavorable resolution of one or more of these
claims or proceedings could have a material adverse effect on the
Company's financial condition, results of operations or cash flows.
Our accruals for loss contingencies are reviewed quarterly and
adjusted as additional information becomes available. We do not
accrue for anticipated legal fees and costs, but expense those
items as incurred.
The GEO Group, Inc. is the first fully integrated equity real
estate investment trust specializing in the design, financing,
development, and operation of correctional, detention, and
community reentry facilities around the globe. The company is based
in Boca Raton, Florida.
GROUP HEALTH PLAN: Greenwell Sues Over Denial of Therapy Coverage
-----------------------------------------------------------------
Jeffery Greenwell, on behalf of himself and all others similarly
situated v. GROUP HEALTH PLAN FOR EMPLOYEES OF SENSUS USA, INC.,
BLUE CROSS BLUE SHIELD OF NORTH CAROLINA, Case No. 5:19-cv-00577-FL
(N.D. Tex., Dec. 23, 2019), is brought on behalf of participants
and beneficiaries of the Employee Retirement Income Security Act
plans administered by Blue Cross Blue Shield of North Carolina, who
were denied Proton Beam Radiation Therapy because of BCBSNC's
uniform application of an arbitrary medical policy to deny as
experimental or investigational such treatment for prostate cancer,
despite PBRT being recognized for decades by the medical community
as an established, medically appropriate treatment for cancer,
including prostate cancer.
The Plaintiff was diagnosed with prostate cancer in June 2015 and
was a participant in a health insurance plan.
Instead of acting solely in the interests of the participants and
beneficiaries of its health insurance plans, upon information and
belief, BCBSNC denied coverage for PBRT to treat prostate cancer
because, on average, PBRT may be significantly more expensive than
traditional Intensity Modulated Radiotherapy ("IMRT") or other
treatments, the Plaintiff asserts.
The Plaintiff was a participant in a health insurance plan,
Defendant Group Health Plan for EMPLOYEES of Sensus USA Inc.,
issued on behalf of his former employer, Sensus USA Inc., which is
a group health benefit plan. The Employer Plan is governed by the
ERISA. The physicians at MD Anderson recommended that the Plaintiff
undergo PBRT as an alternative to IMRT because, among other things,
the likelihood of achieving a better clinical and post treatment
quality-of-life outcome was greater for PBRT.
On March 30, 2016, BCBSNC denied the Plaintiff's request for prior
approval of PBRT on the grounds that (1) it did not meet the Plan's
definition of "medical necessity" and (2) fell under the exclusion
for "Investigational (Experimental) Services" and (3) BCBSNC's
"Corporate Medical Policy: Charged Particle Radiotherapy (Proton or
Helium Ion) Investigational (Experimental) Services" ("Medical
Policy"), and therefore is not covered for prostate cancer ("PBRT
Medical Policy"). Notwithstanding BCBSNC's denial of coverage, the
Plaintiff proceeded to have PBRT, with very positive results. The
Plaintiff paid for the treatment out-of-pocket and sought payment
of benefits from BCBSNC. BCBSNC denied coverage.
The Plaintiff says he exhausted all internal appeals provided by
the Employer Plan. BCBSNC responded by upholding the denial of
coverage based solely on the PBRT Medical Policy, and without
considering the substantial materials submitted by the Plaintiff
and his treating providers supporting coverage for PBRT, says the
complaint.
Group Health Plan for EMPLOYEES of Sensus USA Inc. is a self-funded
group employee welfare benefit plan regulated by ERISA and pursuant
to which Plaintiff is entitled to health care benefits.[BN]
The Plaintiff is represented by:
James C. Plummer, Esq.
Amar Raval, Esq.
BERG PLUMMER JOHNSON & RAVAL, LLP
3700 Buffalo Speedway, Suite 1150
Houston, TX 77098
Phone: (713) 526-0200
Fax: (832) 615-2665
Email: Jplummer@bergplummer.com
Araval@bergplummer.com
HAIN CELESTIAL: Bid to Dismiss Securities Class Suit Pending
------------------------------------------------------------
The Hain Celestial Group, Inc. said in its Form 10-Q Report filed
with the Securities and Exchange Commission on November 7, 2019,
for the quarterly period ended September 30, 2019, that the motion
to dismiss the consolidated class action suit entitled, In re The
Hain Celestial Group, Inc. Securities Litigation, is pending.
On August 17, 2016, three securities class action complaints were
filed in the Eastern District of New York against the Company
alleging violations of Sections 10(b) and 20(a) of the Securities
Exchange Act of 1934.
The three complaints are: (1) Flora v. The Hain Celestial Group,
Inc., et al. (the "Flora Complaint"); (2) Lynn v. The Hain
Celestial Group, Inc., et al. (the "Lynn Complaint"); and (3)
Spadola v. The Hain Celestial Group, Inc., et al. (the "Spadola
Complaint" and, together with the Flora and Lynn Complaints, the
"Securities Complaints").
On June 5, 2017, the court issued an order for consolidation,
appointment of Co-Lead Plaintiffs and approval of selection of
co-lead counsel.
Pursuant to this order, the Securities Complaints were consolidated
under the caption In re The Hain Celestial Group, Inc. Securities
Litigation, and Rosewood Funeral Home and Salamon Gimpel were
appointed as Co-Lead Plaintiffs.
On June 21, 2017, the Company received notice that plaintiff
Spadola voluntarily dismissed his claims without prejudice to his
ability to participate in the Consolidated Securities Action as an
absent class member.
The Co-Lead Plaintiffs in the Consolidated Securities Action filed
a Consolidated Amended Complaint on August 4, 2017 and a Corrected
Consolidated Amended Complaint on September 7, 2017 on behalf of a
purported class consisting of all persons who purchased or
otherwise acquired Hain Celestial securities between November 5,
2013 and February 10, 2017 (the "Amended Complaint").
The Amended Complaint named as defendants the Company and certain
of its current and former officers and asserted violations of
Sections 10(b) and 20(a) of the Securities Exchange Act of 1934
based on allegedly materially false or misleading statements and
omissions in public statements, press releases and SEC filings
regarding the Company's business, prospects, financial results and
internal controls.
Defendants filed a motion to dismiss the Amended Complaint on
October 3, 2017 which the Court granted on March 29, 2019,
dismissing the case in its entirety, without prejudice to replead.
Co-Lead Plaintiffs filed a Second Amended Consolidated Class Action
Complaint on May 6, 2019. The Second Amended Complaint again names
as defendants the Company and certain of its current and former
officers and asserts violations of Sections 10(b) and 20(a) of the
Securities Exchange Act of 1934 based on allegations similar to
those in the Amended Complaint, including materially false or
misleading statements and omissions in public statements, press
releases and SEC filings regarding the Company's business,
prospects, financial results and internal controls.
Defendants filed a motion to dismiss the Second Amended Complaint
on June 20, 2019. Co-Lead Plaintiffs filed an opposition on August
5, 2019, and Defendants submitted a reply on September 3, 2019.
This motion is fully briefed, and the parties await a decision.
The Hain Celestial Group, Inc. manufactures, markets, distributes,
and sells organic and natural products. The company operates in
seven segments: the United States, United Kingdom, Tilda, Ella's
Kitchen UK, Canada, Europe, and Cultivate. The Hain Celestial
Group, Inc. was founded in 1993 and is headquartered in Lake
Success, New York.
HAIN CELESTIAL: Stockholders' Consolidated Class Suit Still Stayed
------------------------------------------------------------------
The Hain Celestial Group, Inc. said in its Form 10-Q Report filed
with the Securities and Exchange Commission on November 7, 2019,
for the quarterly period ended September 30, 2019, that the
stockholders' consolidated class action suit remains stayed.
On April 19, 2017 and April 26, 2017, two class action and
stockholder derivative complaints were filed in the Eastern
District of New York against the Board of Directors and certain
officers of the Company under the captions Silva v. Simon, et al.
and Barnes v. Simon, et al., respectively. Both the Silva Complaint
and the Barnes Complaint allege violation of securities law, breach
of fiduciary duty, waste of corporate assets and unjust
enrichment.
On May 23, 2017, an additional stockholder filed a complaint under
seal in the Eastern District of New York against the Board of
Directors and certain officers of the Company.
The complaint alleged that the Company's directors and certain
officers made materially false and misleading statements in press
releases and SEC filings regarding the Company's business,
prospects and financial results.
The complaint also alleged that the Company violated its by-laws
and Delaware law by failing to hold its 2016 Annual Stockholders
Meeting and includes claims for breach of fiduciary duty, unjust
enrichment and corporate waste.
On August 9, 2017, the Court granted an order to unseal this case
and reveal Gary Merenstein as the plaintiff (the "Merenstein
Complaint").
On August 10, 2017, the court granted the parties stipulation to
consolidate the Barnes Complaint, the Silva Complaint and the
Merenstein Complaint under the caption In re The Hain Celestial
Group, Inc. Stockholder Class and Derivative Litigation (the
"Consolidated Stockholder Class and Derivative Action") and to
appoint Robbins Arroyo LLP and Scott+Scott as Co-Lead Counsel, with
the Law Offices of Thomas G. Amon as Liaison Counsel for
Plaintiffs.
On September 14, 2017, a related complaint was filed under the
caption Oliver v. Berke, et al. (the "Oliver Complaint"), and on
October 6, 2017, the Oliver Complaint was consolidated with the
Consolidated Stockholder Class and Derivative Action.
The Plaintiffs filed their consolidated amended complaint under
seal on October 26, 2017. On December 20, 2017, the parties agreed
to stay Defendants' time to answer, move, or otherwise respond to
the consolidated amended complaint through and including 30 days
after a decision was rendered on the motion to dismiss the Amended
Complaint in the Consolidated Securities Action, described above.
On March 29, 2019, the Court in the Consolidated Securities Action
granted Defendants' motion, dismissing the Amended Complaint in its
entirety, without prejudice to replead.
Co-Lead Plaintiffs in the Consolidated Securities Action filed a
second amended complaint on May 6, 2019.
The parties to the Consolidated Stockholder Class and Derivative
Action agreed to continue the stay of Defendants' time to answer,
move, or otherwise respond to the consolidated amended complaint.
The stay is continued through 30 days after the Court rules on the
motion to dismiss the Second Amended Complaint in the Consolidated
Securities Action.
No further updates were provided in the Company's SEC report.
The Hain Celestial Group, Inc. manufactures, markets, distributes,
and sells organic and natural products. The company operates in
seven segments: the United States, United Kingdom, Tilda, Ella's
Kitchen UK, Canada, Europe, and Cultivate. The Hain Celestial
Group, Inc. was founded in 1993 and is headquartered in Lake
Success, New York.
HAMMER HAAG: Griffin Seeks Unpaid Wages & Benefits Under WARN Act
-----------------------------------------------------------------
Robert L. Griffin, Jr., on behalf of himself and all others
similarly situated v. HAMMER HAAG STEEL, INC., Case No.
8:19-cv-03147-VMC-AAS (M.D. Fla., Dec. 23, 2019), is brought for
collection of unpaid wages and benefits for 60 calendar days
pursuant to the Workers Adjustment and Retraining Notification Act
of 1988.
The Defendant is liable under the WARN Act for the failure to
provide the Plaintiff and others at least 60 days advance notice of
their termination as required by the WARN Act, the Plaintiff
contends. The Plaintiffs' employment with the Defendant was
terminated as part of a "mass layoff" as defined by the WARN Act,
for which they were entitled to receive 60 days advance written
notice under the WARN Act from the Defendant.
The Defendant failed to pay the Plaintiff and the other salary
situated former employees their respective wages, salary,
commissions, bonuses, accrued holiday or vacation pay which would
have accrued for 60 days following their respective termination
without notice and failure to make 401(k) contributions and provide
them with health insurance coverage and other employee benefits,
says the complaint.
Plaintiff Robert L. Griffin, Jr. was employed by the Defendant
until his termination without cause on December 18, 2019.
The Defendant is a Florida Profit Corporation with its principal
place of business in Clearwater, Pinellas County, Florida.[BN]
The Plaintiff is represented by:
Jason B. Woodside, Esq.
WOODSIDE LAW, P.A.
PO Box 9447
Tampa, FL 33674-9447
Phone: (813) 606-4872
Fax: (813) 333-9845
Email: Jason@woodsidelawpa.com
HERTZ CORPORATION: Jeffrey Seeks to Recoup Overtime Wages for LMs
-----------------------------------------------------------------
Tracy Jeffrey, Individually and on behalf of all others similarly
situated, as class representative v. THE HERTZ CORPORATION and DTG
OPERATIONS, INC., Case No. 1:19-cv-07209 (E.D.N.Y., Dec. 23, 2019),
seeks to recover overtime compensation for the Plaintiff and
similarly situated individuals, who have worked as Location
Managers or in comparable roles with different titles for the
Defendants.
According to the complaint, it was the Defendants' policy to
uniformly classify LMs as exempt from the New York Labor Law and
not to pay LMs any overtime wages. To serve their customers' needs
and maximize profits, the Defendants regularly require LMs to work
in excess of 40 hours per week during the New York Class Period.
In order to minimize labor costs, the Defendants staff their rental
locations leanly and strictly manage hours worked by non-exempt,
hourly workers to avoid paying them overtime wages. The Defendants
have violated the New York Labor Law by failing to pay LMs,
including the Plaintiff, the overtime wages they have earned and to
which they are entitled by law, says the complaint.
Plaintiff Jeffrey was employed by the Defendants as an LM from May
2014 to January 2017 and he worked at airport rental locations in
Queens, New York.
Hertz operates its worldwide vehicle rental business through
multiple brands, including Hertz, Dollar, and Thrifty.[BN]
The Plaintiff is represented by:
Gregg I. Shavitz, Esq.
Camar R. Jones, Esq.
Alan L. Quiles, Esq.
SHAVITZ LAW GROUP, P.A.
951 Yamato Road, Suite 285
Boca Raton, FL 33432
Phone: (561) 447-8888
Facsimile: (561) 447-8831
- and -
Gregg I. Shavitz, Esq.
Camar R. Jones, Esq.
Alan L. Quiles, Esq.
SHAVITZ LAW GROUP, P.A.
951 Yamato Road, Suite 285
Boca Raton, FL 33432
Phone: (561) 447-8888
Facsimile: (561) 447-8831
- and -
Mitchell L. Feldman, Esq.
FELDMAN LEGAL GROUP
6940 W. Linebaugh Ave., #101
Tampa, FL 33625
Phone: 813-639-9366
Fax: 813-639-9376
ICCO CHEESE: S.C. Grants Insurers' Summary Judgment Bid
-------------------------------------------------------
The Supreme Court, New York County issued a Decision and Order
granting Plaintiffs' Motion for Summary Judgment in the case
captioned TRAVELERS PROPERTY CASUALTY COMPANY OF AMERICA, THE
TRAVELERS INDEMNITY COMPANY, THE CHARTER OAK FIRE INSURANCE
COMPANY, SELECTIVE WAY INSURANCE CMPANY, CONTINENTAL CASUALTY
COMPANY, Plaintiff, v. ICCO CHEESE COMPANY, INC., WAL-MART STORES,
INC., Defendant, Docket No. 652787/2016, Motion Seq. Nos. 005, 007,
008. (N.Y. Sup.).
Numerous class action lawsuits have been filed against ICCO-Cheese
Company, Inc. (ICCO) and Wal-Mart Stores, Inc. (Wal-Mart)
(Underlying Class Actions) alleging that ICCO and Wal-Mart
intentionally mislabeled a Parmesan cheese product manufactured by
ICCO and sold by Wal-Mart under its Great Value brand as containing
100% grated Parmesan cheese when, in reality, it also contained
cellulose and lower grade cheeses.
Travelers Property Casualty Company of America, The Travelers
Indemnity Company, and The Charter Oak Fire Insurance Company
(collectively, Travelers), Continental Casualty Company
(Continental), and Selective Way Insurance Company (Selective) each
move for summary judgment and seek a declaration that they have no
duty to defend or indemnify the defendants with respect to any and
all Underlying Class Actions.
The plaintiffs seek declarations that they do not have a duty to
defend because the Amended Consolidated Complaint does not plead
facts which support a claim for which coverage is available, i.e.,
arguing that inasmuch as the claims are not for bodily injury or
property damage and are essentially for overpayment which is not
covered by the insurance policy, there is no duty to defend.
Summary judgment will be granted only when the movant presents
evidentiary proof in admissible form that there are no triable
issues of material fact and that there is either no defense to the
cause of action or that the cause of action or defense has no
merit.
It is undisputed that the Travelers Policies provide third-party
liability coverage for bodily injury, property damage, personal
injury, advertising injury, or website injury. The critical issue
before the court, then, is whether the Underlying Class Action
claims negate the possibility of coverage under any of these
enumerated categories of coverage. Because as alleged neither the
Amended Consolidated Complaint nor the complaints filed in the
Underlying Class Actions present any facts which set forth a claim
for any of the enumerated covered categories or otherwise have a
cause of action or demand related to any of the covered categories,
the motion is granted.
As an initial matter, the parties dispute which complaint the court
should look to in determining whether any of the claims give rise
to a possibility of coverage and therefore a duty to defend.
The plaintiffs argue that the Amended Consolidated Complaint
superseded the underlying complaints filed in the Underlying Class
Actions and as such is the only operative complaint, and that the
underlying individual complaints are therefore neither controlling
nor relevant.
The Amended Consolidated Complaint
The Amended Consolidated Complaint alleges the following causes of
action: (i) Breach of Express Warranty, (ii) Unjust Enrichment,
(iii) Breach of Implied Warranty of Merchantability, (iv) New York
General Business Law Section 349, (v) New York General Business Law
Section 350, (vi) Minnesota Prevention of Consumer Fraud Act (vii)
Minnesota Unlawful Trade Practices Act (viii) Minnesota False
Statement in Advertising Act (ix) Minnesota Deceptive Trade
Practices Act (x) Florida Deceptive and Unfair Trade Practices Act,
Fla. Stat. (xi) New Jersey Consumer Fraud Act (xii) Alabama
Deceptive Trade Practices Act (xiii) California Unfair Competition
Law (xiv) California Consumers Legal Remedies Act.
It is indisputable that none of the above-referenced causes of
action seek damages relating to either bodily injury or property
damage. Nor do any of the facts as set forth in the Amended
Consolidated Complaint allege facts which support a claim for
either bodily injury or property damage.
The Complaints in the Underlying Class Actions
It is also indisputable that none of the causes of action in the
Underlying Class Actions seek damages or have facts relating to
either bodily injury or property damage. To wit, the complaints in
the Underlying Class Actions assert the following causes of action,
inter alia:
Brown v Wal-Mart Stores, Inc. (1:16-cv-00050 [ND Fla]): (i) Florida
Deceptive and Unfair Practices Act, (ii) Unjust Enrichment, (iii)
and Violation of the Magnusson-Moss Warranty Act.
Costoso v Wal-Mart Stores, Inc. (1:16-cv-01162 [ED NY]): (i) New
York General Business Law Section 349, (ii) New York General
Business Law Section 350, (iii) State Consumer Protection Statutes,
(iv) Breach of Express Warranty, (v) Breach of Implied Warranty of
Merchantability, (vi) Breach of Implied Warranty of Fitness for a
Particular Purpose, (vii) Common Law Unjust Enrichment, and (viii)
Common Law Fraud.
Davies v Wal-Mart Stores, Inc. (3:16-cv-535 [ND Ohio]): (i) Ohio
Deceptive Trade Practices Act, (ii) Unjust Enrichment, and (iii)
Violation of the Magnusson-Moss Warranty Act, 15 USC § 2301, et
seq.
In other words, the death knell tolls for the Defendants' position
because none of the facts or causes of action alleged in either the
Amended Consolidated Complaint or the complaints filed in the
Underlying Class Actions relate to claims for bodily injury or
property damage. Rather, all of these claims relate to deceptive
labeling and overpayment, which are not covered under the Travelers
Policies.
The Factual Allegations in the Complaints
In their opposition, the defendants urge the court to look beyond
the Consolidated Amended Complaint to the complaints filed in the
following four Underlying Class Actions which they argue give rise
to the possibility of coverage:
(1) Brown v Wal-Mart Stores, Inc. (1:16-cv-00050 (ND FL) where the
complaint alleges that Plaintiff and members of the Class did not
receive a safe and or/effective product when they purchased
Wal-Mart's 100% Grated Parmesan Cheese' Products and that the
product was defective because it was not fit for the ordinary
purpose for which it is used.
(2) Ducorosky v Wal-Mart Stores, Inc. (1:16-cv-01571 (SD NY) where
the complaint alleges that Wal-Mart's Parmesan cheese used
cellulose, which is an additive extracted from wood pulp by using a
highly toxic chemical process and that it also contains potassium
sorbate, a substance made from sorbic acid that has been linked to
genetic damage in humans.
(3) Franklin v Wal-Mart Stores, Inc. et al. (8:16-cv-00515 (MD Fla)
where the complaint alleges that the use of cellulose changes the
nutritional makeup of the product and (4) Cruz v Walmart Stores,
Inc. (9:16-cv-80382 (SD Fla) where the complaint alleged that the
product is valueless, and that it contained ingredients used in
products such as detergents, pet litter, brake pads, and
construction materials, which were ingested by the plaintiffs. The
argument fails. As discussed above, none of these complaints allege
any facts of any bodily injury or property damage to the
plaintiffs.
Wal-Mart and ICCO argue that there may nevertheless be a
possibility of coverage and therefore a duty to defend based on
factual allegations of bodily injuries which have not yet been pled
but may someday arise.
Relying on Harrington Haley LLP v Nutmeg Ins. Co. (39 F.Supp.2d 403
(ND NY 1999), Wal-Mart and ICCO argue that the causes of action
alleged in Amended Consolidated Complaint and the underlying
complaints are not determinative, and that the court must look to
whether there are any facts alleged in any of the complaints or
known by the plaintiffs to exist which might give rise to a
possibility of coverage based on some potential future injury.
Reliance on Harrington is misplaced.
There is a significant difference between Harrington and the
instant action. In Harrington, the court found that the complaint
asserted underlying facts which, if proven, could have given rise
to covered liability. In this case, however, there are no facts
alleged in any of the complaints from which the possibility of
coverage might arise. Simply put, no one has alleged so much as a
tummy ache or mild indigestion resulting from the eight percent of
this product which is not Parmesan cheese, let alone cognizable
bodily injury.
The district court further observed that the complaints do not
allege that the underlying plaintiffs now have an increased risk of
bodily injury for which they should be compensated and that the
closest the complaints come to alleging bodily harm is the
allegations that the insured was aware of a large body of
scientific research that BPA exposure can cause physical harm The
district court concluded that such allegations did not give rise to
a duty to defend because there were no allegations that the
plaintiffs sustained any actual physical harm.
Accordingly, because none of the allegations in the Amended
Consolidated Complaint or the underlying complaints allege any
personal injury, property damage, or any other covered occurrence
under the Travelers Policies, there is no possibility of coverage,
and the court therefore holds that there is no duty to defend.
The plaintiffs' motions for summary judgment are granted.
A full-text copy of the Supreme Court's October 28, 2019 Decision
and Order is available at https://tinyurl.com/y6em4vmz from
Leagle.com.
INTEGRITY SENIOR: Fails to Pay Proper Wages, Brown Alleges
----------------------------------------------------------
BENJAMIN BROWN, individually and on behalf of all others similarly
situated, Plaintiff v. INTEGRITY SENIOR LIVING, LLC; SENIOR HOUSING
MANAGEMENT, INC.; and GRAND HORIZONS, LLC, Defendants, Case No.
1:19-cv-01752-WCG (E.D. Wis., Dec. 12, 2019) is an action against
the Defendant's failure to pay the Plaintiff and the class overtime
compensation for hours worked in excess of 40 hours per week.
The Plaintiff Brown was employed by the Defendants as an
hourly-paid, non-exempt employee.
Integrity Senior Living, LLC is a non-medical home care agency for
older adults. [BN]
The Plaintiff is represented by:
Scott S. Luzi, Esq.
WALCHESKE & LUZI, LLC
15850 W. Bluemound Rd., Suite 304
Brookfield, WI 53005
Telephone: (262) 780-1953
Facsimile: (262) 565-6469
E-mail: sluzi@walcheskeluzi.com
JAWLAW INC: Fails to Pay Overtime Wages Under FLSA, Levine Claims
-----------------------------------------------------------------
Priscilla A. Levine, on behalf of herself and others similarly
situated v. JAWLAW, INC., d/b/a AMADA SENIOR CARE, a Domestic
Profit Corporation, Case No. 1:19-cv-05726-WMR (N.D. Ga., Dec. 20,
2019), is brought against the Defendant for its violation of the
Fair Labor Standards Act.
The Plaintiff was a non-exempt employee for the Defendant. She was
hired by the Defendant to work as a non-exempt Care Giver. She paid
a weekly salary to cover her first 40 hours worked.
Throughout her employment, Ms. Levine asserts, the Defendant
deprived her of proper overtime compensation for her hours worked
in excess 40 hours each week. The Defendant failed to compensate
her at a rate of one and one-half times her regular rate of pay for
all hours worked in excess of 40 hours in a single work week, says
the complaint.
The Defendant was, and continues to be, an "enterprise engaged in
elderly care."[BN]
The Plaintiff is represented by:
Andrew R. Frisch, Esq.
MORGAN & MORGAN, P.A.
8151 Peters Road, Suite 4000
Plantation, FL 33324
Phone: (954) WORKERS
Facsimile: 954-327-3013
Email: afrisch@forthepeople.com
JAX LLC: Sued by Smith for Not Properly Paying Servers Under FLSA
-----------------------------------------------------------------
Shakina Smith, individually and on behalf of all others similarly
situated v. JAX LLC d/b/a GOLDEN CORRAL, Case No. 3:19-cv-00707
(W.D.N.C., Dec. 23, 2019), seeks all available relief under the
Fair Labor Standards Act of 1938 and the North Carolina Wage and
Hour Act, which governs North Carolina employers' state wage and
hour obligations.
According to the complaint, the Defendant pays the Plaintiff and
other Servers a sub-minimum hourly wage of approximately $2.13. The
Defendant utilizes a "tip credit" for each hour worked by the
Plaintiff and other Servers to satisfy the FLSA and NCWHA mandate
that employees receive a minimum wage of at least $7.25/hour.
Moreover, the Defendant maintains a company-wide policy and
practice of requiring the Plaintiff and other Servers at its Golden
Corral restaurants to spend more than 20% of their time performing
non-tip producing work. The Defendant routinely pays a sub-minimum
hourly wage of approximately $2.13 while the Plaintiff and other
Servers perform non-tip producing work, says the complaint.
The Plaintiff was employed as a "Server" by the Defendant, from
September 2016 to October 2018 at one of their Golden Corral
restaurants in Mooresville, North Carolina.
Jax is a well-established franchisee of Golden Corral. Jax owns,
operates, and transacts business at fifteen Golden Corral
restaurants across North Carolina, South Carolina, and
Pennsylvania.[BN]
The Plaintiff is represented by:
Scott C. Harris, Esq.
WHITFIELD BRYSON & MASON LLP
900 W. Morgan Street
Raleigh, NC 27603
Phone: (919) 600-500
Facsimile: (919) 600-5035
Email: scott@wbmllp.com
- and –
Gary E. Mason, Esq.
Danielle L. Perry, Esq.
WHITFIELD BRYSON & MASON LLP
5101 Wisconsin Ave. NW, Suite 305
Washington, DC 20016
Phone: (202) 429-2290
Facsimile: (202) 429-2294
Email: gmason@wbmllp.com
dperry@wbmllp.com
- and -
Nicholas A. Migliaccio, Esq.
Jason Rathod, Esq.
MIGLIACCIO & RATHOD LLP
412 H Street N.E., Suite 302
Washington, DC 20002
Phone: (202) 470-3520
Fax: (202) 800-2730
Email: nmigliaccio@classlawdc.com
jrathod@classlawdc.com
- and -
Peter Winebrake, Esq.
R. Andrew Santillo, Esq.
Mark J. Gottesfeld, Esq
WINEBRAKE & SANTILLO, LLC
Twining Office Center, Suite 211
715 Twining Road
Dresher, PA 19025
Phone: (215) 884-2491
JERRY'S SEAMLESS: Hubbard Seeks Overtime Wages for Installers
-------------------------------------------------------------
Grant Hubbard, Eric Kalisnikow, James Diaz and Cory Bigham, each
individually and on behalf of all others similarly situated v.
JERRY'S SEAMLESS GUTTERING INC., and JEROME KRECZMER, Case No.
9:19-cv-81705-XXXX (S.D. Fla., Dec. 20, 2019), is brought against
the Defendants for violations of the overtime provisions of the
Fair Labor Standards Act.
The Plaintiffs were employed by the Defendants as gutter
installers.
The Defendants never paid the Plaintiffs an overtime premium for
any hours they worked in excess of 40 in any given workweek. The
Plaintiffs were damaged as a result of the Defendants' failure to
pay the Plaintiffs and all other gutter installers lawful and
proper overtime compensation for all hours worked in excess of 40
per week, as required by the FLSA, says the complaint.
The Defendants operate a gutter sales, installation, and repair
company based in Delray Beach, Florida, under the name of Jerry's
Seamless Guttering.[BN]
The Plaintiffs are represented by:
C. Ryan Morgan, Esq.
MORGAN & MORGAN, P.A.
20 N. Orange Ave., 14th Floor
Orlando, FL 32802-4979
Phone: (407) 420-1414
Facsimile: (407) 245-3401
Email: rmorgan@forthepeople.com
- and -
Blake Hoyt, Esq.
SANFORD LAW FIRM, PLLC
One Financial Center
650 South Shackleford, Suite 411
Little Rock, AR 72211
Phone: (501) 221-0088
Facsimile: (888) 787-2040
Email: blake@sanfordlawfirm.com
JONES FINANCIAL: Appeal in McDonald Class Action Still Pending
--------------------------------------------------------------
The Jones Financial Companies, L.L.L.P. said in its Form 10-Q
Report filed with the Securities and Exchange Commission on
November 7, 2019, for the quarterly period ended September 27,
2019, that the appeal in the consolidated case, McDonald v. Edward
D. Jones & Co., L.P., et al., remains pending before the U.S. Court
of Appeals for the Eighth Circuit.
On August 19, 2016, JFC, Edward Jones and certain other defendants
were named in a putative class action lawsuit (McDonald v. Edward
D. Jones & Co., L.P., et al.) filed in the U.S. District Court for
the Eastern District of Missouri brought under the Employee
Retirement Income Security Act of 1974, as amended, by a
participant in the Edward D. Jones & Co. Profit Sharing and 401(k)
Plan (the "Retirement Plan").
The lawsuit alleges that the defendants breached their fiduciary
duties to Retirement Plan participants and seeks declaratory and
equitable relief and monetary damages on behalf of the Retirement
Plan.
The defendants filed a motion to dismiss the McDonald lawsuit which
was granted in part dismissing the claim against JFC, and denied in
part as to all other defendants on January 26, 2017.
On November 11, 2016, a substantially similar lawsuit (Schultz, et
al. v. Edward D. Jones & Co., L.P., et al.) was filed in the same
court. The plaintiffs consolidated the two lawsuits by adding the
Schultz plaintiffs to the McDonald case, and the Schultz action was
dismissed.
The plaintiffs filed their first amended consolidated complaint on
April 28, 2017. On December 13, 2018, the court entered a
preliminary order approving a class action settlement agreement
reached among the parties.
Following a fairness hearing held on April 18, 2019, the court
entered judgment on April 22, 2019 in which it granted final
approval of the settlement, effected a full release of claims by
the settlement class in favor of the defendants, and dismissed the
consolidated lawsuit with prejudice.
On June 14, 2019, the lone objector filed an appeal to the judgment
approving the settlement.
The appeal is currently pending before the U.S. Court of Appeals
for the Eighth Circuit.
No further updates were provided in the Company's SEC report.
The Jones Financial Companies, L.L.L.P., through its subsidiary,
Edward D. Jones & Co., L.P., operates as a registered
broker-dealer. The Jones Financial Companies, L.L.L.P. was founded
in 1871 and is based in Des Peres, Missouri.
JONES FINANCIAL: Dismissal of Anderson Suit under Appeal
--------------------------------------------------------
Plaintiffs in the case, Anderson et al v. Edward D. Jones & Co.,
L.P. et al., are taking an appeal from the court order dismissing
their second amended complaint.
The Notice of Appeal was filed December 11, 2019.
District Judge John A. Mendez entered an order dated November 8,
2019, granting the Defendants' Motion to Dismiss in its entirety,
with prejudice.
The Jones Financial Companies, L.L.L.P. said in its Form 10-Q
Report filed with the Securities and Exchange Commission on
November 7, 2019, for the quarterly period ended September 27,
2019, that on March 30, 2018, Edward Jones and its affiliated
entities and individuals were named as defendants in a putative
class action (Anderson, et al. v. Edward D. Jones & Co., L.P., et
al.) filed in the U.S. District Court for the Eastern District of
California.
The lawsuit was brought under the Securities Act of 1933, as
amended (the "Securities Act"), and the Exchange Act, as well as
Missouri and California law and alleges that the defendants
inappropriately transitioned client assets from commission-based
accounts to fee-based programs.
The plaintiffs requested declaratory, equitable, and exemplary
relief, and compensatory damages.
On July 9, 2019, the district court entered an order dismissing the
lawsuit in its entirety without prejudice.
On July 29, 2019, the plaintiffs filed a second amended complaint,
which eliminated certain affiliated entities and individuals as
defendants, withdrew the claims under the Securities Act, added
claims under the Investment Advisers Act of 1940, as amended (the
"Investment Advisers Act"), and certain additional state law
claims, and reasserted the remaining claims with modified
allegations. In response to the amended complaint, the defendants
filed a motion to dismiss, which is currently pending before the
court.
In the plaintiffs' opposition brief filed on September 9, 2019, the
plaintiffs withdrew their Investment Advisers Act claims. Edward
Jones and its affiliated entities and individuals deny the
allegations and intend to continue to vigorously defend this
lawsuit.
The Jones Financial Companies, L.L.L.P., through its subsidiary,
Edward D. Jones & Co., L.P., operates as a registered
broker-dealer. The Jones Financial Companies, L.L.L.P. was founded
in 1871 and is based in Des Peres, Missouri.
JONES FINANCIAL: Renewed Bid to Dismiss Bland Class Suit Pending
----------------------------------------------------------------
The Jones Financial Companies, L.L.L.P. said in its Form 10-Q
Report filed with the Securities and Exchange Commission on
November 7, 2019, for the quarterly period ended September 27,
2019, that the defendants' renewed motion to dismiss the class
action suit entitled, land, et al. v. Edward D. Jones & Co., L.P,
et al., remains pending.
On March 13, 2018, JFC and Edward Jones were named as defendants in
a purported collective and class action lawsuit (Bland, et al. v.
Edward D. Jones & Co., L.P, et al.) filed in the U.S. District
Court for the Northern District of Illinois by four former
financial advisors.
The lawsuit was brought under the Fair Labor Standards Act as well
as Missouri and Illinois law and alleges that the defendants
unlawfully attempted to recoup training costs from departing
financial advisors and failed to pay all overtime owed to financial
advisor trainees among other claims.
The lawsuit seeks declaratory and injunctive relief, compensatory
and liquidated damages.
JFC and Edward Jones deny the allegations and intend to vigorously
defend against the allegations in this lawsuit. On March 19, 2019,
the court entered an order granting the defendants' motion to
dismiss all claims, but permitting the plaintiffs to amend and
re-file certain of their claims.
Plaintiffs filed an amended complaint on May 3, 2019. Defendants
have filed a renewed motion to dismiss that amended complaint.
The Jones Financial Companies, L.L.L.P., through its subsidiary,
Edward D. Jones & Co., L.P., operates as a registered
broker-dealer. The Jones Financial Companies, L.L.L.P. was founded
in 1871 and is based in Des Peres, Missouri.
JOS A BANK: Mendez Sues Over Gift Cards Inaccessible by Blind
-------------------------------------------------------------
Himelda Mendez, on behalf of himself and all others similarly
situated v. JOS. A. BANK CLOTHIERS, INC., Case No. 1:19-cv-11756
(S.D.N.Y., Dec. 23, 2019), is brought against the Defendant for its
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 the Plaintiff's rights under the Americans with
Disabilities Act. Because the Defendant's store gift cards are not
equally accessible to blind and visually-impaired consumers, it
violates the ADA, says the complaint.
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
the Defendant's store gift cards will become and remain accessible
to blind and visually-impaired consumers.
JoS. A. Bank operates multiple retail locations in the State of New
York and is one of the largest retailers in the world.[BN]
The Plaintiff is represented by:
Bradly G. Marks, Esq.
THE MARKS LAW FIRM, PC
175 Varick Street, 3rd Fl.
New York, NY 10014
Phone: (646) 770-3775
Fax: (646) 770- 2639
Email: brad@markslawpc.com
- and -
Jeffrey M. Gottlieb, Esq.
Dana L. Gottlieb, Esq.
GOTTLIEB & ASSOCIATES
150 East 18th Street, Suite PHR
New York, NY 10003-2461
Phone: (212) 228-9795
Fax: (212) 982-6284
Email: nyjg@aol.com
danalgottlieb@aol.com
KLOECKNER METALS: $110K Attorneys Fees Awarded in Galarza FLSA Suit
-------------------------------------------------------------------
Judge Fernando M. Olguin of the U.S. District Court for the Central
District of California entered a judgment on attorneys fees in the
case captioned DAVID GALARZA, on behalf of himself and on behalf of
all other persons similarly situated, Plaintiff, v. KLOECKNER
METALS CORP., Defendant, Case No. CV 17-4910 FMO (PJWx) (C.D. Cal.)
-- in connection with the final approval of the class action
settlement in the case.
Pursuant to the Court's Order on the Final Approval of Class Action
Settlement, filed contemporaneously with the filing of the
Judgment, Jugde Olguin adjudged that:
(i) Plaintiff David Galarza be paid a service payment of
$5,000,
(ii) the Class counsel be paid $110,000 in attorney's fees,
and $6,817.29 in costs, and
(iii) the Claims Administrator, Simpluris, be paid for its
fees and expenses, in accordance with the terms of the
Settlement Agreement.
All the class members who did not validly and timely request
exclusion from the settlement have released their claims, as set
forth in the Settlement Agreement, against any of the released
parties. Except as to any class members who have validly and
timely requested exclusion, the action is dismissed with prejudice,
with all parties to bear their own fees and costs except as set
forth and in the prior orders of the Court.
A full-text copy of the District Court's Nov. 12, 2019 Judgment is
available at https://is.gd/AD2T0J from Leagle.com.
David Galarza, individually and on behalf of other persons
similarly situated, Plaintiff, represented by Gregory N. Karasik --
greg@karasiklawfirm.com -- Karasik Law Firm & Emil Davtyan, Davtyan
PLC.
Kloeckner Metals Corporation, Defendant, represented by Jeffrey
Scott Ranen -- Jeffrey.Ranen@lewisbrisbois.com -- Lewis Brisbois
Bisgaard and Smith LLP, Joshua Carlon --
Joshua.Carlon@lewisbrisbois.com -- Lewis Brisbois Bisgaard and
Smith LLP & Leona Lam Reddy -- leona.lamreddy@wellsfargo.com --
Lewis Brisbois Bisgaard and Smith LLP.
KOPPERS RECOVERY: Fails to Pay Overtime Under FLSA, Myers Claims
----------------------------------------------------------------
Dustin Myers, Individually and on Behalf of All Others Similarly
Situated v. KOPPERS RECOVERY RESOURCES, LLC, and KOPPERS, INC.,
Case No. 4:19-cv-00923-BSM (E.D. Ark., Dec. 20, 2019), is brought
under the Fair Labor Standards Act and the Arkansas Minimum Wage
Act arising from the Defendants' failure to pay the Plaintiff
proper overtime compensation for all hours worked.
The Defendants have deprived the Plaintiff and similarly situated
Field Managers of regular wages and overtime compensation for all
of the hours worked over 40 per week, says the complaint.
The Plaintiff worked for the Defendants as a salaried employee.
The Defendants contract with railroad companies to dispose of
railroad ties.[BN]
The Plaintiff is represented by:
Tess Bradford, Esq.
Josh Sanford, Esq.
SANFORD LAW FIRM, PLLC
One Financial Center
650 South Shackleford, Suite 411
Little Rock, AR 72211
Phone: (501) 221-0088
Facsimile: (888) 787-2040
Email: tess@sanfordlawfirm.com
josh@sanfordlawfirm.com
LASERSHIP INC: Morris Sues Over Unpaid Minimum and Overtime Wages
-----------------------------------------------------------------
Rushane Morris, on behalf of himself, individually, and on behalf
of all others similarly-situated v. LASERSHIP, INC., Case No. 2
1:19-cv-07196 (E.D.N.Y., Dec. 23, 2019), accuses the Defendant of
violating the Plaintiff's rights guaranteed to him by the minimum
and the overtime provisions of the Fair Labor Standards Act and the
New York Labor Law.
The Defendant willfully failed to pay the Plaintiff the wages
lawfully due to him under the FLSA and the NYLL, the Plaintiff
contends. Specifically, the Defendant required the Plaintiff to
work, and the Plaintiff did in fact work, more than forty hours
each workweek or virtually each week, yet the Defendant
intentionally failed to compensate the Plaintiff at least at the
statutorily-required rate of one and one-half times his regular
rate of pay, or one and one-half times the minimum wage rate, if
greater, for any hours that he worked in excess of forty in a week.
Instead, the Defendant paid the Plaintiff on a piece-rate basis
without any regard to actual hours worked, in violation of the
FLSA's and the NYLL's overtime provisions, and which when added up
per week, routinely fell below the NYLL's minimum wage rate for
every hour worked, says the complaint.
The Plaintiff worked for the Defendant as a parcel delivery driver
in New York City from January 2014 until December 17, 2017.
The Defendant is a Northeast regional parcel-delivery company.[BN]
The Plaintiff is represented by:
Matthew J, Farnworth, Esq.
Alexander T. Coleman, Esq.
Michael J. Borrelly, Esq.
BORRELLI & ASSOCIATES, P.L.L.C.
910 Franklin Avenue, Suite 200
Garden City, NY 11530
Phone: (516) 248-5550
Fax: (516) 248-6027
LD PRODUCTS: Faces Morgan Suit Over Blind-Inaccessible Web Site
---------------------------------------------------------------
Jon R. Morgan, on behalf of himself and all others similarly
situated, v. LD PRODUCTS, INC., Case No. 1:19-cv-11725-PGG (S.D.
N.Y., Dec. 22, 2019), is brought against the Defendant for its
failure to design, construct, maintain, and operate its Web site 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 Web site,
and therefore denial of its products and services offered thereby
and in conjunction with its physical locations, is a violation of
the Plaintiff's rights under the Americans with Disabilities Act.
Because the Defendant's Web site, http://www.ldproducts.com/,is
not equally accessible to blind and visually-impaired individuals,
it violates the ADA, says the complaint.
The Plaintiff seeks a permanent injunction to cause a change in the
Defendant's corporate policies, practices, and procedures so that
the Defendant's website will become and remain accessible to blind
and visually-impaired consumers.
The Plaintiff is a visually-impaired and legally blind person who
requires screen-reading software to read Web site content using his
computer.
The Defendant is an ink, toner, paper, office and technology
supplies retailer, and owns and operates the Web site.[BN]
The Plaintiff is represented by:
Jonathan Shalom, Esq.
SHALOM LAW, PLLC
124-04 Metropolitan Avenue
Kew Gardens, NY 11415
Phone: (718) 971-9474
Facsimile: (718) 865-0943
Email: Jshalom@jonathanshalomlaw.com
LIDL US: Santiago Sues Over False Packaging of Ice Cream Products
-----------------------------------------------------------------
Anakristina Santiago, individually and on behalf of all others
similarly situated v. Lidl US, LLC, Case No. 1:19-cv-07206
(E.D.N.Y., Dec. 23, 2019), seeks damages under consumer protection
laws from the Defendant's misleading representations on their
vanilla ice cream products' packaging.
The Product's relevant front label representations include "French
Vanilla Ice Cream," "Made with Vanilla and Fresh Cream," "Inspired
by Indulgent French Custard," a vignette of a vanilla bean and
flower of vanilla bean, a pitcher of milk and two cones with scoops
of the contents. Since vanilla is the only flavor with its own
standard of identity, its labeling is controlled not by the general
flavor regulations but by the standards for vanilla ingredients.
This means that if a product is represented as being characterized
by vanilla yet also contains non-vanilla vanillin, the label and
packaging must declare the presence of vanillin and identify it as
an artificial flavor. Where the front label of an ice cream
product represents it is flavored only from the characterizing
vanilla flavor, it is deceptive and unlawful to include flavor not
derived from vanilla beans.
The Products are misleading because they do not contain the amount,
type and percentage of vanilla as a component of the flavoring in
the ice cream, which is required by law and consistent with
consumer expectations, the Plaintiff contends. Had the Plaintiff
and class members known the truth, they would not have bought the
Product or would have paid less for it.
The Product contains other representations which are misleading and
deceptive, the Plaintiff asserts. As a result of the false and
misleading labeling, the Product is sold at a premium price,
approximately no less than $6.99 per 9 FL OZ, excluding
tax--compared to other similar products represented in a
non-misleading way, says the complaint.
The Plaintiff purchased one or more of the Products for personal
use and consumption.
Lidl US, LLC manufactures, distributes, markets, labels and sells
french vanilla ice cream products purporting to contain flavor only
from their natural characterizing flavor, vanilla, under their Lidl
brand.[BN]
The Plaintiff is represented by:
Spencer Sheehan, Esq.
SHEEHAN & ASSOCIATES, P.C.
505 Northern Blvd., Suite 311
Great Neck, NY 11021
Telephone: (516) 303-0552
Facsimile: (516) 234-7800
E-mail: spencer@spencersheehan.com
MAZDA MOTOR: Miyares Sues Over Defective Smart City Brakes
----------------------------------------------------------
Jason Miyares and Christie A. Vidaillet, individually and on behalf
of all others similarly situated v. MAZDA MOTOR CORPORATION and
MAZDA MOTOR OF AMERICA, INC. d/b/a MAZDA NORTH AMERICAN OPERATIONS,
Case No. 1:19-cv-25271-XXXX (S.D. Fla., Dec. 23, 2019), arises from
the Defendants' violations of common and statutory law and
conspiracy to conceal a known defect in the class vehicles.
The lawsuit is brought against the Defendants on behalf of all
other persons in the United States, who purchased, own or owned, or
lease or leased any model year 2018–20 Mazda vehicle containing
the defective Smart City Brake Support and/or Smart Brake Support
systems.
The Class Vehicles are equipped with a forward sensing camera
("FSC") that is positioned near the rearview mirror and is a
component of and utilized by a number of i-Activsense technologies,
such as the Smart City Brake Support ("SCBS") and the Smart Brake
Support ("SBS"). When working properly, the SCBS and SBS systems
alert the driver of a possible collision using the warning
indications on the display panel and a warning sound if the front
radar sensor and the FSC determine that there is the possibility of
a collision with an object, such as a vehicle, pedestrian, or
bicycle ahead. If the systems deem a collision unavoidable, the
automatic brake control is activated to reduce damage.
When overheated, the FSC malfunctions and improperly activates the
SCBS and/or SBS systems and slows down or stops the vehicles
despite the absence of a legitimate trigger or chance of collision.
The Braking Defect presents significant safety risks for Plaintiffs
and Class Members because when the braking system malfunctions and
improperly stops or slows the vehicle, Plaintiffs and Class Members
are unable to accelerate or maintain the speed of the vehicle.
The Plaintiffs, Class Members, and other occupants of the Class
Vehicles are at risk for rear end collisions and other accidents
resulting in injury or potentially death because of the Defendants'
failure to correct the Braking Defect and/or disclose the existence
of the Braking Defect and the safety risks it poses to drivers,
vehicle occupants, regulators, and the public in general, according
to the complaint.
Despite their knowledge of the Braking Defect, the Defendants have
concealed its scope and nature from Plaintiffs, Class Members,
regulators, and the general public to misrepresent the standard,
quality, and/or grade of the Class Vehicles. The Defendants have
knowingly, actively, and affirmatively concealed the existence,
scope, and nature of the Braking Defect to increase profits by
selling more Class Vehicles, avoid expenses associated with
recalling and repairing the Defect in Class Vehicles, and avoid
negative publicity associated with the Defect, says the complaint.
The Plaintiffs purchased and/or leased their Class Vehicles from
the Defendants.
MMC engages in the manufacture and sale of passenger and commercial
vehicles and automotive parts around the world, including in the
United States and this District.[BN]
The Plaintiffs are represented by:
Ricardo M. Martinez-Cid, Esq.
Lea P. Bucciero, Esq.
Alissa Del Riego, Esq.
PODHURST ORSECK, P.A.
SunTrust International Center
One S.E. 3rd Ave., Suite 2300
Miami, FL 33131
Phone: (305) 358-2800
Fax: (305) 358-2382
Email: RMCTeam@podhurst.com
adelriego@podhurst.com
MERIT MEDICAL: Pension Fund Sues over 29% Drop in Share Price
-------------------------------------------------------------
BUCKS COUNTY EMPLOYEES RETIREMENT FUND, individually and on behalf
of all others similarly situated, Plaintiff v. MERIT MEDICAL
SYSTEMS, INC.; FRED P. LAMPROPOULOS; and RAUL PARRA, Defendants,
Case No. 8:19-cv-02326 (C.D. Cal., Dec. 3, 2019) is a securities
class action on behalf of all persons who purchased the common
stock of Merit between February 26, 2019 and October 30, 2019,
inclusive, against Merit and certain of its officers and directors
for violations of the Securities Exchange Act of 1934.
According to the complaint, during the year 2018, Merit acquired
three companies. On February 21, 2018, Merit completed the
acquisition of Becton, Dickinson and Company for up to $100
million. On November 13, 2018, Merit completed the acquisition of
Aliso Viejo, California, based Cianna Medical, Inc., which makes
products for the treatment of breast cancer, for up to $200
million, making it the Company's largest-ever acquisition.
Following the acquisition, Cianna became a wholly owned subsidiary
and Merit retained virtually all of its commercial sales and R&D
teams. On December 14, 2018, the Company completed its acquisition
of Vascular Insights, LLC, and acquired its ClariVein product, for
up to $60 million.
Defendants' representations concerning the integration of the
acquired companies, its product pipeline, and its prospects and
financial guidance, were each materially false and misleading when
made because defendants failed to disclose the following true
facts, which were known to defendants or recklessly disregarded by
them.
As a result of Defendants' material misrepresentations and
omissions, Merit stock traded at artificially inflated prices of
more than $62 per share.
Following the second quarter 2019 financial results, the Company's
stock price declined more than 25% from a close of $54.84 per share
on July 25, 2019, to a close of $41.00 per share on July 26, 2019,
on trading volume of more than 6.2 million shares. However, the
stock continued to trade at artificially inflated prices because
defendants failed to disclose the following true facts, which were
known to defendants or recklessly disregarded by them.
Then, on October 30, 2019, the Company issued a press release
announcing the its third quarter 2019 ("3Q19") financial results,
reporting adjusted EPS of $0.28, well below consensus estimates of
$0.45, and slashing FY19 revenue and EPS guidance by 20%.
As a result of these ongoing structural issues, defendants reduced
the Company's FY19 guidance, once again, to net sales of $986-$995
million from $1,007-$1,029 million, and to non-GAAP EPS of
$1.40-$1.46 from $1.74-$1.97.
Following these alarming disclosures and the significant reduction
in the Company's outlook for free cash flow, Merit's stock price
declined more than 29%, from a close of $29.11 per share on October
30, 2019, to a close of $20.66 per share on October 31, 2019, on a
massive volume of more than 7.2 million shares traded.
Merit Medical Systems, Inc. manufactures and markets products used
in diagnostic and interventional cardiology and radiology
procedures. The Company's primary products include inflation
devices, guide wires, thrombolytic catheters and fluid dispensing
systems, and angiography accessories, among others. Merit's
products are sold worldwide. [BN]
The Plaintiff is represented by:
Samuel H. Rudman, Esq.
Daniel J. Pfefferbaum, Esq.
ROBBINS GELLER RUDMAN & DOWD LLP
One Montgomery Street, Suite 1800
San Francisco, CA 94104
Telephone: (415) 288-4545
Facsimile: (415) 288-4534
E-mail: srudman@rgrdlaw.com
mblasy@rgrdlaw.com
METHODIST HEALTH: Fails to Pay OT Wages Under FLSA, Reed Claims
---------------------------------------------------------------
Michelle M. Reed and Julia K. McLinden, individually and on behalf
of a collective of persons similarly situated v. METHODIST HEALTH
SERVICES CORPORATION, an Illinois Corporation, d/b/a UNITYPOINT
HEALTH- PEKIN HOSPITAL, UNITYPOINT HEALTH-METHODIST HOSPITAL &
UNITYPOINT HEALTH-PROCTOR HOSPITAL; and PROGRESSIVE HEALTH SYSTEMS,
Case No. 1:19-cv-01412-JES-JEH (C.D. Ill., Dec. 23, 2019), is
brought against the Defendants for damages and other relief arising
from their violations of the Fair Labor Standards Act.
The Defendants permitted the Plaintiffs to work more than 40 hours
per week without overtime pay, the Plaintiff alleges. The
Defendants knew that the Plaintiffs and other similarly situated
individuals were working unpaid overtime hours because they
required Plaintiffs and others to work overtime hours in order to
complete all of their work assignments and meet the Defendants'
pre-determined goals, says the complaint.
The Plaintiffs worked for Defendants at Pekin Hospital in Pekin,
Illinois, and held the title of 'Case Managers.'
UnityPoint operates three hospitals in the State of Illinois,
'UnityPoint Health-Methodist Hospital' located in Peoria, Illinois;
'UnityPoint Health-Proctor Hospital' in Peoria, Illinois; and
'UnityPoint Health-Pekin Hospital' in Pekin, Illinois.[BN]
The Plaintiff is represented by:
Jeffrey Grant Brown, Esq.
JEFFREY GRANT BROWN, P.C.
221 North LaSalle Street, Suite 1414
Chicago, IL 60601
Phone: 312.789.9700
Email: jeff@JGBrownlaw.com
- and -
Carol Coplan Babbitt, Esq.
LAW OFFICES OF CAROL COPLAN BABBITT
35 East Wacker Drive, Suite 650
Chicago, IL 60601
Phone: 312.435.9775
Email: carol@ccbabbittlaw.com
- and -
Carl Reardon, Esq.
120 Illini Drive
East Peoria, IL 61611
Phone: 309 699 6767
Email: CarlReardon@comcast.net
MICRO KICKBOARD: NY District Court Dismisses Duncan ADA Suit
------------------------------------------------------------
Judge Laura Taylor Swan of the U.S. District Court for the Southern
District of New York dismissed with prejudice the case captioned
EUGENE DUNCAN, on behalf of all other persons similarly situated,
Plaintiffs, v. MICRO KICKBOARD HOLDINGS, LLC, Defendant, Case No.
19-CV-6026-LTS-JLC (S.D. N.Y.), as to the named Plaintiff and
without prejudice as to all the other Plaintiffs and without costs
to either party, but without prejudice to restoration of the action
to the calendar of the undersigned if settlement is not achieved
within 30 days of the date of the Order.
The attorneys for the parties have advised the Court that the
putative class action, alleging violations of the American
Disability Act (ADA), has been or will be settled. If a party
wishes to reopen the matter or extend the time within which it may
be settled, the party must make a letter application before the
30-day period expires.
The parties are advised that if they wish the Court to retain
jurisdiction in the matter for purposes of enforcing any settlement
agreement, they will submit the settlement agreement to the Court
to be so ordered.
A full-text copy of the Court's Nov. 12, 2019 Order is available at
https://is.gd/Ho7MB5 from Leagle.com.
Eugene Duncan, on behalf of all other persons similarly situated,
Plaintiff, represented by Bradly Gurion Marks --
bmarkslaw@gmail.com -- The Marks Law Firm PC.
Micro Kickboard Holdings, LLC, Defendant, represented by Michael
Anthony Keough -- mkeough@steptoe.com -- Steptoe & Johnson, LLP.
MOOG INC: Ramos Suit Over Unpaid Wages Removed to C.D. California
-----------------------------------------------------------------
The lawsuit titled Henry Ramos, an Individual, on behalf of himself
and all others similarly situated v. MOOG, INC.; and DOES 1 through
100, Inclusive, Case No. 19STCV41880, was removed from the Superior
Court of the State of California for the County of Los Angeles to
the U.S. District Court for the Central District of California on
Dec. 20, 2019.
The District Court Clerk assigned Case No. 2:19-cv-10775 to the
proceeding.
The Complaint asserts seven causes of action against Moog on behalf
of Plaintiff and a putative class: (1) failure to pay all overtime
wages; (2) failure to pay all minimum wages; (3) failure to pay
overtime wages at the legal overtime pay rate; (4) failure to
authorize and permit rest periods; (5) knowing and intentional
failure to comply with itemized employee wage statement provisions;
(6) failure to pay all wages due at the time of termination of
employment; and (7) violation of Unfair Competition Law.[BN]
The Defendants are represented by:
Ronda D. Jamgotchian, Esq.
Michael T. Campbell, Esq.
Michaela R. Goldstein, Esq.
SHEPPARD, MULLIN, RICHTER & HAMPTON LLP
1901 Avenue of the Stars, Suite 1600
Los Angeles, CA 90067-6055
Phone: 310.228.3700
Facsimile: 310.228.370
Email: rjamgotchian@sheppardmullin.com
mcampbell@sheppardmullin.com
mgoldstein@sheppardmullin.com
MOSS BROS AUTO: Faces Johnson Suit Over Unsolicited Marketing
-------------------------------------------------------------
Jamal Johnson, individually and on behalf of all others similarly
situated v. MOSS BROS. AUTO GROUP, INC., California Corporation,
Case No. 5:19-cv-02456 (C.D. Cal., Dec. 20, 2019), is brought
against the Defendant to secure redress for violations of the
Telephone Consumer Protection Act.
To promote its services, the Defendant engages in aggressive
unsolicited marketing, harming thousands of consumers in the
process, says the complaint. Through this action, the Plaintiff
seeks injunctive relief to halt the Defendant's illegal conduct,
which has resulted in the invasion of privacy, harassment,
aggravation, and disruption of the daily life of thousands of
individuals.
The Plaintiff also seeks statutory damages on behalf of himself and
members of the Class, and any other available legal or equitable
remedies.
The Plaintiff is a natural person, who was a resident of Riverside
County, California.
The Defendant is a car dealership.[BN]
The Plaintiff is represented by:
William Litvak, Esq.
DAPEER ROSENBLIT LITVAK, LLP
11500 W. Olympic Blvd. Suite 550
Los Angeles, CA 90064
Phone: (310) 477-5575
Fax: (310) 477-7090
Email: wlitvak@drllaw.com
- and -
Garrett O. Berg, Esq.
SHAMIS & GENTILE, P.A.
14 NE 1st Ave., Suite 1205
Miami, FL 33132
Phone (305) 479-2299
Email: gberg@shamisgentile.com
- and -
Ignacio J. Hiraldo, Esq.
IJH LAW
14 NE First Ave. 10th Floor
Miami, FL 33131
Phone: (786) 351-8709
Email: IJHiraldo@IJHlaw.com
N. CALIFORNIA INALLIANCE: Ct. Vacates Future Hrng Dates in Osegueda
-------------------------------------------------------------------
The United States District Court for the Eastern District of
California issued an Order vacating Future Hearing Dates and
Setting Hearing on Plaintiff’s Motion for Preliminary Approval in
the case captioned JOSEPH OSEGUEDA, individually and on behalf of
all similarly situated and/or aggrieved employees of Defendants in
the State of California, Plaintiff, v. NORTHERN CALIFORNIA
INALLIANCE; and DOES 1 THROUGH 50, inclusive, Defendants, Case No.
2:18-cv-00835-WBS-EFB (E.D. Cal.).
The Court held that all existing and future court dates and
deadlines are vacated. Plaintiff shall file his motion for
Preliminary Approval of the Class Action Settlement on or before
November 18, 2019. Responsive briefs shall be filed in accordance
with the Local Rules. The hearing on Plaintiff's Motion for
Preliminary Approval of the Class Action Settlement was scheduled
for December 16, 2019, at 1:30 p.m. in Courtroom 5 (WBS).
A full-text copy of the District Court's October 28, 2019 Order is
available at https://tinyurl.com/y5ph55j9 from Leagle.com
Joseph Osegueda, Plaintiff, represented by Graham S.P. Hollis -
ghollis@grahamhollis.com - GrahamHollis, APC, Nicole Rachelle
Roysdon - nroysdon@wilsonturnerkosmo.com - GrahamHollis, APC &
Vilmarie Cordero , Graham Hollis A.P.C., 3555 Fifth Avenue, Suite
200, San Diego, CA 92103.
Northern California Inalliance, Defendant, represented by Matthew
Charles Jaime - mjaime@mathenysears.com - Matheny Sears Linkert and
Long & Robert W. Sweetin - rsweetin@mathenysears.com- Matheny
Sears Linkert & Jaime, LLP.
NCAA: Patterson Sues Over Disregard for Athletes' Health & Safety
-----------------------------------------------------------------
Timothy Patterson, individually and on behalf of all others
similarly situated v. NATIONAL COLLEGIATE ATHLETIC ASSOCIATION, and
JOHNSON C. SMITH UNIVERSITY, Case No. 1:19-cv-05001-JRS-MJD (S.D.
Ind., Dec. 20, 2019), is brought against the Defendants to obtain
redress for injuries sustained as a result of the Defendants'
reckless disregard for the health and safety of generations of JCSU
student-athletes.
Despite knowing for decades of a vast body of scientific research
describing the danger of traumatic brain injuries ("TBIs") like
those the Plaintiff experienced, the Defendants failed to implement
adequate procedures to protect the Plaintiff and other JCSU
football players from the long-term dangers associated with them.
They did so knowingly and for profit, the Plaintiff asserts.
As a direct result of the Defendants' acts and omissions, the
Plaintiff and countless former JCSU football players suffered brain
and other neurocognitive injuries, says the complaint. As such, the
Plaintiff brings this Class Action Complaint in order to vindicate
those players' rights and hold the NCAA and JCSU accountable.
Plaintiff Timothy Patterson is a natural person and citizen of the
State of California.
The NCAA is the governing body of collegiate athletics that
oversees twenty-three college sports and over 400,000 students who
participate in intercollegiate athletics, including the football
program at Greensboro.[BN]
The Plaintiff is represented by:
Jeff Raizner, Esq.
RAIZNER SLANIA LLP
2402 Dunlavy Street
Houston, TX 77006
Phone: 713.554.9099
Fax: 713.554.9098
Email: efile@raiznerlaw.com
- and -
Jay Edelson, Esq.
Benjamin H. Richman, Esq.
EDELSON PC
350 North LaSalle Street, 14th Floor
Chicago, IL 60654
Phone: 312.589.6370
Fax: 312.589.6378
Email: jedelson@edelson.com
brichman@edelson.com
- and -
Rafey S. Balabanian, Esq.
EDELSON PC
123 Townsend Street, Suite 100
San Francisco, CA 94107
Phone: 415.212.9300
Fax: 415.373.9435
Email: rbalabanian@edelson.com
NEKTAR THERAPEUTICS: Still Defends Securities Class Suits in Calif.
-------------------------------------------------------------------
Nektar Therapeutics said in its Form 10-Q Report filed with the
Securities and Exchange Commission on November 7, 2019, for the
quarterly period ended September 30, 2019, that the company
continues to defend class action lawsuits in California.
On October 30, 2018, the company and certain of its executives were
named in a putative securities class action complaint filed in the
U.S. District Court for the Northern District of California, which
complaint was subsequently amended on May 15, 2019.
Also, on February 13, 2019, and February 18, 2019, shareholder
derivative complaints were filed in the U.S. District Court for the
District of Delaware naming the CEO, CFO and certain members of
Nektar's board.
Both the class action and shareholder derivative actions assert,
among other things, that for a period beginning at least from
November 11, 2017 through October 2, 2018, the Company's stock was
inflated due to alleged misrepresentations about the efficacy and
safety of NKTR-214.
In addition, on August 19, 2019, the company and certain of its
executives were named in a putative securities class action
complaint filed in the U.S. District Court for the Northern
District of California, which complaint asserted, among other
things, that for a period between February 15, 2019 and August 8,
2019, inclusive, the company's stock was inflated due to an alleged
failure to disclose a NKTR-214 manufacturing issue.
All of these cases are in the early stages.
Nektar said, "Accordingly, we cannot reasonably estimate any range
of potential future charges, and we have not recorded any accrual
for a contingent liability associated with these legal proceedings.
However, an unfavorable resolution could potentially have a
material adverse effect on our business, financial condition, and
results of operations or prospects, and potentially result in
paying monetary damages."
Nektar Therapeutics develops drug candidates for cancer,
auto-immune disease, and chronic pain in the United States. The
Company was founded in 1990 and is headquartered in San Francisco,
California.
NEW YORK CITY: Teagle Suit Alleges Pregnancy Discrimination
-----------------------------------------------------------
SIMONE TEAGLE, THERESA M. MAHON, MELISSA SOTO-GERMOSEN, VIVIANA
AYENDE and ELIZABETH ORTIZ, on behalf of themselves and a class of
similarly situated individuals, v. THE CITY OF NEW YORK, et al.,
Case No. 1:19-cv-07211 (E.D.N.Y., Dec. 23, 2019), is brought to
secure protection of and to redress deprivation of rights secured
by the Civil Rights Act of 1964, as amended by the Pregnancy
Discrimination Act of 1978; Civil Rights Act of 1871; New York
State Executive Law; and the New York City Administrative Code, as
amended by the Pregnant Workers Fairness Act of 2014.
The Defendants are THE CITY OF NEW YORK; MICHAEL RUBENS BLOOMBERG,
as Former Mayor; BILL de BLASIO, as Mayor; MARTHA H. HIRST, as
Former Commissioner-Department of Citywide Administrative Services;
EDNA WELLS HANDY, as Former Commissioner-Department of Citywide
Administrative Services; STACEY CUMBERBATH, as Former
Commissioner-Department of Citywide Administrative Services;
LISETTE CAMILO, as Commissioner-Department of Citywide
Administrative Services; RAYMOND WALTER KELLY, as Former
Commissioner-Police Department City of New York; WILLIAM JOSEPH
BRATTON, as Former Commissioner-Police Department City of New York;
JAMES PATRICK O'NEILL, as Former Commissioner-Police Department
City of New York; DERMOT FRANCIS SHEA, as Commissioner-Police
Department City of New York; TRACIE KEESEE, as Former Deputy
Commissioner, Office of Equity and Inclusion-Police Department City
of New York; TANYA MEISENHOLDER, as Deputy Commissioner, Office of
Equity and Inclusion-Police Department City of New York; JERRY
O'SULLIVAN, as Commanding Officer, 113th Precinct; JOZEF BAN, as
Integrity Control Officer, 113th Precinct; ROXANNE LUDEMANN, as
Sergeant, 113th Precinct; KURT NASON, as Sergeant, 113th Precinct;
MARIA GILBERT, as Sergeant Investigator, Office of Equity and
Inclusion; MICHAEL DEDDO, as Commanding Officer, 66th Precinct;
PHILLIP LAM, as Administrative Lieutenant, 66th Precinct; DOROTHY
AIELLO, as Sergeant Investigator, Office of Equity and Inclusion;
ERNEST MORALES, III, as Commanding Officer, 42nd Precinct; MICHELLE
BRAY, as Administrative Lieutenant, 42nd Precinct; JESSICA COREY,
as Commanding Officer, Central Park Precinct; JAMES KING, as
Commanding Officer, 61st Precinct; KEVIN MURTHA, as Administrative
Lieutenant, 61st Precinct; MIGUEL GARCIA, as Police Officer, 61st
Precinct; HOWARD ZWEBEN, as Integrity Control Officer, 61st
Precinct; PAWEL MASLINSKI, as Sergeant, 61st Precinct and KEVIN
CASCONE, as Sergeant, 61st Precinct each sued individually in their
official capacities as employees of Defendant THE CITY OF NEW YORK,
The Plaintiffs allege that they and the other Rule 23 Class Members
are each the victim of unlawful adverse employment decisions within
the NYPD because they became pregnant during their employment.
Within the NYPD, female employees, who are or have been pregnant
are subjected to a workplace culture dominated by male
policymakers.
The Plaintiffs also allege that they and the other Rule 23 Class
Members have been affected in the same or similar ways by the
NYPD'S failure to investigate claims of pregnancy discrimination
and its failure to promulgate and enforce adequate procedures
designed to detect, monitor, and correct this pattern and practice
of pregnancy discrimination.
The Plaintiffs are employees of the Defendants.
The City of New York is a municipal employer.[BN]
The Plaintiffs are represented by:
Eric Sanders, Esq.
THE SANDERS FIRM, P.C.
30 Wall Street, 8th Floor
New York, NY 10005
Phone: (212) 652-2782
Facsimile: (212) 652-2783
OMNI HOTELS: Faces Garcia Suit Alleging Violations of Labor Code
----------------------------------------------------------------
Ismael Garcia, in a Representative capacity, and on behalf of other
members of the general public similarly situated v. OMNI HOTELS
MANAGEMENT CORPORATION, a Delaware Corporation, and DOES 1-10,
inclusive, Case No. 37-2019-00068188-CU-OE-CTL (Cal. Super., San
Diego Cty., Dec. 23, 2019), is brought against the Defendants for
their violations of California Law and Statutes, including the
Labor Code, Civil Code, and IWC Wage Orders.
The Plaintiff and all other aggrieved employees were and currently
are denied the benefits and protections of the Labor Code due to
the Defendants institutionalized pay practices, standard as to all
of Defendants' California-based employees, says the complaint.
The Plaintiff was employed by the Defendants in 2014 until
September 2019.
Omni Hotel Management Corporation is a Delaware corporation and has
its principal place of business in Dallas, Texas.[BN]
The Plaintiff is represented by:
William B. Sullivan, Esq.
Eric K. Yaeckel, Esq.
SULLIVAN LAW GROUP, APC
2330 Third Avenue
San Diego, CA 92101
Phone: (619) 702-6760
Fax: (619) 702-6761
Email: helen@sullivanlawgroupapc.com
yaeckel@sullivanlawgroupapc.com
PDC ENERGY: Faces SRC Energy Merger-Related Suits
-------------------------------------------------
PDC Energy, Inc. said in its Form 10-Q Report filed with the
Securities and Exchange Commission on November 7, 2019, for the
quarterly period ended September 30, 2019, that the company is
facing class action suits related to its merger with SRC Energy,
Inc.
On August 25, 2019, the company and SRC Energy, Inc. ("SRC")entered
into an Agreement and Plan of Merger (the "Merger Agreement") under
which we will acquire SRC in an all-stock transaction (the "SRC
Acquisition").
On October 4, 2019 and October 11, 2019, purported shareholders of
SRC filed putative class action lawsuits against the members of the
SRC board, SRC, and PDC in Colorado District Courts in Arapahoe
County and Denver County, captioned Robert Garfield v. Lynn A.
Peterson, et al., Case No. 2019CV32360 and George Korol v. SRC
Energy Inc., et al., Case No. 2019CV33933.
The plaintiffs in the state law complaints generally claim that (i)
SRC and the members of the SRC board breached their fiduciary
duties to SRC shareholders by authorizing the merger with PDC for
what the plaintiffs assert is inadequate consideration and pursuant
to an unfair process and with inadequate disclosures and (ii) PDC
aided and abetted the other defendants' alleged breach of duties.
On October 8, 2019 and October 11, 2019, purported shareholders of
SRC filed putative class action lawsuits against SRC, the members
of the SRC board, and PDC in the United States District Court,
District of Delaware, captioned Patrick Plumley v. SRC Energy Inc.,
et al., Case No. 1:19-cv-01912, and Juan Aguirre v. SRC Energy
Inc., et al., Case No. 1:19-cv-01934.
The plaintiffs in the federal law complaints generally claim that
the defendants disseminated a false or misleading registration
statement regarding the proposed merger in violation of Section
14(a) and Section 20(a) of the Exchange Act and/or Rule 14a-9
promulgated under the Exchange Act.
Even if the lawsuits are without merit, as the defendants believe
these lawsuits to be, defending against these claims can result in
substantial costs and divert management time and resources. An
adverse judgment could result in monetary damages, which could have
a negative impact on PDC's and SRC's respective liquidity and
financial condition.
The plaintiffs in the state law complaints seek, among other
things, to rescind the transaction or obtain rescissory damages if
the merger is consummated, to recover other unspecified damages,
including recover attorneys' fees and costs, and to obtain
injunctive relief.
The plaintiffs in the federal law complaints seek, among other
things, injunctive relief to prevent consummation of the merger
until the alleged disclosure violations are cured, damages in the
event the merger is consummated, and an award of attorney's fees.
PDC Energy, Inc., an independent exploration and production
company, acquires, explores for, develops, and produces crude oil,
natural gas, and natural gas liquids in the United States. The
company's operations are primarily located in the Wattenberg Field
in Colorado and the Delaware Basin in Texas. The company was
formerly known as Petroleum Development Corporation and changed its
name to PDC Energy, Inc. in June 2012. PDC Energy, Inc. was founded
in 1969 and is headquartered in Denver, Colorado.
PERMANENT WORKERS: 5th Cir. Awards $1K Lawyer Fees in Portillo Suit
-------------------------------------------------------------------
In the case captioned JAVIER PORTILLO, on behalf of himself or
other persons similarly situated, Plaintiff-Appellant, v. PERMANENT
WORKERS, L.L.C.; CONRAD INDUSTRIES, INCORPORATED; DANNY CEPERO,
Defendants-Appellees, Case No. 18-31238 (5th Cir.), Judge Jerry E.
Smith of the U.S. Court of Appeals for the Fifth Circuit reversed
the district court's order denying Portillo's separate motion for
attorney's fees and costs, and rendered a judgment setting fees at
$1,000.
Danny Cepero owns Permanent Workers, which provided staff for
shipbuilding. From November 2011 to December 2012, Permanent
Workers employed Portillo as a general laborer. Portillo applied
to and worked for Permanent Workers under the alias "Felix
Serrano," using a fake social security card and state-issued
identification. Portillo also used that alias to complete his I-9
and W-4 forms.
In September 2014, following a Department of Labor investigation,
Permanent Workers and Cepero entered into an agreement with the
Department under which Permanent Workers sent notice letters to
employees whom it had underpaid, offering back wages. Portillo
received a letter with a check for $1,305 -- payable to "Felix
Serrano" -- but never responded to it. Instead, Portillo brought a
collective action suit under the Fair Labor Standards Act ("FLSA")
for unpaid overtime wages, interest, liquidated damages, and
attorney's fees. Portillo then moved to have the class certified
with himself as the class representative.
After the Defendants moved for summary judgment, asserting that
they had no record of an employee named "Javier Portillo," Portillo
revealed that he had worked under the alias. The Defendants
asserted that Portillo should be estopped from claiming overtime
pay because he had engaged in deception by using the alias. The
district court granted summary judgment for the Defendants,
explaining that Portillo was unfit to represent the proposed class.
The Court vacated and remanded, ruling that dismissing Portillo's
individual claim was an inappropriate remedy for rejection of his
desired representative role in the class action.
On remand, the parties settled and jointly moved to approve their
settlement. That agreement awarded Portillo $2,610 to $1,305 in
unpaid wages and $1,305 in liquidated damages -- but did not
address attorney's fees and costs. The district court approved the
agreement.
Portillo separately moved for attorney's fees and costs. The
Defendants opposed that motion, contending that Portillo should be
estopped from recovering fees. The Defendants relied on three
alleged facts: (1) Portillo misrepresented his identity to obtain
employment; (2) Portillo did not disclose, until the Defendants had
moved for summary judgment, that he had worked under an alias; and
(3) Litigation was not necessary because the Defendants previously
had issued an unclaimed check for $1,305, payable to Portillo's
assumed name, the same amount of back wages the Defendants had paid
to Portillo to settle the lawsuit.
The district court referred the motion to a magistrate judge
("MJ"). The MJ initially recommended that the motion for fees and
costs be granted in part because the Defendants had not provided
sufficient authority that the defense of estoppel can be applied to
an award of attorneys' fees and costs after a settlement has been
reached. The MJ later withdrew that recommendation and recommended
that Portillo be estopped from obtaining fees and costs. The
district court adopted the recommendation as its own.
Portillo appeals that denial. He contends that estoppel should not
apply because his wrongdoing did not create a triable issue of fact
on the merits of his claim. The FLSA provides that the court
shall, in addition to any judgment awarded to the Plaintiff or the
Plaintiffs, allow a reasonable attorney's fee to be paid by the
defendant, and costs of the action. The statute thus mandates that
the district court award attorney's fees to the prevailing party,
but it gives the court discretion in deciding what is reasonable.
In the case, however, the district court found that Portillo -- a
prevailing Plaintiff in an FLSA suit -- was estopped from obtaining
attorney's fees and costs. Although the court refused to award
attorney's fees based on equitable estoppel, it also cited several
cases related to judicial estoppel. Accordingly, the Court
evaluates both equitable and judicial estoppel.
Judge Smith holds that Portillo did not falsely report the number
of hours nor misrepresent any facts that would change his status as
an employee. Whether his name was Portillo or Serrano didn't
matter. Either way, the Defendants violated the FLSA by not
compensating him for overtime hours. Portillo's dishonesty didn't
affect the merits of his suit nor cause detrimental reliance by the
Defendants. Portillo is therefore not equitably estopped from
seeking reasonable attorney's fees and costs under the FLSA, the
Fifth Circuit finds.
Portillo's misrepresentations also did not give him an unfair
advantage, the Fifth Circuit opines. He sued using his real name,
not his alias, which is why the Defendants had no record of him as
an employee. Although he misrepresented his name and citizenship
status to the government in his I-9 and W-4 forms, that
misrepresentation does not support a finding of estoppel.
Portillo's misrepresentations also did not give him an unfair
advantage. The Defendants violated the FLSA by underpaying him for
overtime hours worked, regardless of his name or citizenship
status. Thus, because he neither asserted inconsistent positions
nor derived an unfair advantage based on a misrepresentation to the
court, judicial estoppel doesn't apply.
The remaining question is the amount of fees and costs, if any, to
award. Judge Smith holds that the the reasonableness of much of
the litigation, and, therefore, the ensuing attorney's fees, is
highly questionable. Although the Court normally would remand the
question to the district court, in the case a remand to set fees
would only run up expenses and unduly prolong an already overbilled
case. It is time to put the matter to rest. Judge Smith sets
attorney's fees at $1,000.
A full-text copy of the Fifth Court's Nov. 12, 2019 Order is
available at https://is.gd/n8bQMZ from Leagle.com.
Murphy J. Foster, III -- murphy.foster@bswllp.com -- for
Defendant-Appellee.
Greg Guidry -- greg.guidry@ogletreedeakins.com -- for
Defendant-Appellee.
Melissa Morse Shirley -- melissa.shirley@bswllp.com -- for
Defendant-Appellee.
Hal David Ungar, for Defendant-Appellee.
Roberto Luis Costales -- rlc@beaumontcostales.com -- for
Plaintiff-Appellant.
Sunny West, for Defendant-Appellee.
Jonathan Kirkland, for Plaintiff-Appellant.
PET FOOD: Vazquez Sues Over Illegal Collection of Biometric Data
----------------------------------------------------------------
Rafael Vazquez, individually and on behalf of all others similarly
situated v. PET FOOD EXPERTS, INC., Case No. 2019CH14746 (Ill.
Cir., Cook Cty., Dec. 20, 2019), is brought against the Defendant
to put a stop to its unlawful collection, use, and storage of the
Plaintiff's and the putative Class members' sensitive biometric
data.
When employees first begin their jobs at the Defendant, they are
required to scan their fingerprint in its biometric time tracking
system as a means of authentication, instead of using only key fobs
or other identification cards. While there are tremendous benefits
to using biometric time clocks in the workplace, there are also
serious risks.
Unlike key fobs or identification cards which can be changed or
replaced if stolen or compromised--fingerprints are unique,
permanent biometric identifiers associated with the employee. This
exposes employees to serious and irreversible privacy risks.
Recognizing the need to protect its citizens from situations like
these, Illinois enacted the Biometric Information Privacy Act,
specifically to regulate companies that collect and store Illinois
citizens' biometrics, such as fingerprints.
Despite this law, the Defendant disregarded its employees'
statutorily protected privacy rights and unlawfully collects,
stores, and uses their biometric data in violation of the BIPA, the
Plaintiff alleges. Specifically, the Defendant has violated the
BIPA because it did not: properly inform the Plaintiff and the
Class members in writing of the specific purpose and length of time
for which their fingerprints were being collected, stored, and
used, as required by the BIPA; provide a publicly available
retention schedule and guidelines for permanently destroying the
Plaintiff and the Class's fingerprints, as required by the BIPA;
nor receive a written release from the Plaintiff or the members of
the Class to collect, capture, or otherwise obtain fingerprints, as
required by the BIPA, says the complaint.
The Plaintiff is a natural person and citizen of the State of
Illinois.
The Defendant is a nationwide pet food distributor that services
thousands of pet retailers out of 5 distributions centers in the
United States.[BN]
The Plaintiff is represented by:
David Fish, Esq.
John Kunze, Esq.
Mara Baltabols, Esq.
THE FISH LAW FIRM, P.C.
200 East Fifth Avenue, Suite 123
Naperville, IL 60563
Phone: 630.355.7590
Fax: 630.778.0400
Email: admin@fishlawfirm.com
dfish@fishlawfirm.com
jkunze@fishlawfirm.com
mara@fishlawfirm.com
PETSMART INC: Court OKs $1.35MM Settlement Deal in Milburn Case
---------------------------------------------------------------
The United States District Court for the Eastern District of
California issued an Order granting Plaintiff's Motion for Final
Approval of a Class Action Settlement in the case captioned WILLIAM
L. MILBURN, individually and on behalf of all other current and
former similarly situated and aggrieved employees of defendants in
the State of California, Plaintiff, v. PETSMART, INC.; and DOES 1
through 50, inclusive, Defendants, Case No.
1:18-cv-00535-DAD-SKO.(E.D. Cal.).
FINAL APPROVAL OF CLASS ACTION SETTLEMENT
Class actions require the approval of the district court prior to
settlement. This requires that: (i) notice be sent to all class
members (ii) the court hold a hearing and make a finding that the
settlement is fair, reasonable, and adequate (iii) the parties
seeking approval file a statement identifying the settlement
agreement and (iv) class members be given an opportunity to object.
Notice
Adequate notice is critical to court approval of a class settlement
under Rule 23(e). Notice is satisfactory if it generally describes
the terms of the settlement in sufficient detail to alert those
with adverse viewpoints to investigate and to come forward and be
heard.
Here, the court reviewed the class notice that was proposed when
the parties sought preliminary approval of the settlement and found
it to be sufficient. Notice was sent by the settlement
administrator to 2,987 class members on May 17, 2019 via
first-class mail. Of those notices, Rust performed 256 address
traces on notices returned as undeliverable, obtained 224 more
current addresses, and re-mailed to those class members.
Fifty-five class notices were returned a second time. Thus,
eighty-seven class notices remain undeliverable.
It therefore appears that approximately 97 percent of the class
members received notice of this settlement. Rust also received
fifty-one FLSA opt-in forms. Although one opt-in form was untimely,
the individual provided a letter informing Rust that it was timely
but never received, and counsel for the parties directed Rust to
consider the opt-in form timely. Since there are eighty-four
individuals who are eligible to submit a claim under the FLSA
settlement fund, this represents 60.7 percent participation in the
FLSA settlement.
Final Fairness Hearing
In assessing the fairness of a class action settlement, courts
balance the following factors:
(1) the strength of the plaintiffs' case (2) the risk, expense,
complexity, and likely duration of further litigation (3) the risk
of maintaining class action status throughout the trial (4) the
amount offered in settlement (5) the extent of discovery completed
and the stage of the proceedings (6) the experience and views of
counsel (7) the presence of a governmental participant and (8) the
reaction of the class members to the proposed settlement.
Strength of Plaintiff's Case
Plaintiff explains in his brief in support of the motion for final
approval that the class faced challenges at the class certification
stage, such as the potential individualized issues among members of
the PetsHotel Manager Class. The parties also dispute whether
defendant failed to provide suitable seating, a claim that is not
usually pursued under the Private Attorneys General Act (PAGA).
Plaintiff notes that there is limited case law related to suitable
seating, making this legal issue a novel and complex one.
Plaintiff's counsel asserts that the main point of contention is
defendant's belief that the PetsHotel Managers were properly
classified as exempt and, even if they were misclassified, they
nevertheless were both offered and took meal and rest breaks.
Defendant also asserts that PetsHotel managers only occasionally
worked over eight hours in a work day or forty hours in a work
week, and class members were not required to use personal cell
phones but those who did chose to do so for personal convenience.
Defendants believe they cannot be held liable for any Labor Code or
Wage Order violations.
Risk, Expense, Complexity, and Likely Duration of Further
Litigation, and Risk of Maintaining Class Action Status Through
Trial
As noted above, plaintiff has indicated he believes there was
substantial risk the class would not be awarded significant damages
because of the possibility that defendant might successfully claim
it was not liable for Labor Code or Wage Order violations that
class members experienced, if any.
Moreover, as explained above, there was a significant risk that the
class could not maintain class certification through trial.
Moreover, this case has not yet proceeded to the class
certification stage, and therefore substantial expense would be
incurred in litigating a class certification motion, propounding
and responding to merits-phase discovery, disputing any dispositive
motions, and ultimately trying the case. It is not only possible
but likely that further litigating this case to a final resolution
would have required significant investments of both time and
expenses, absent a settlement.
The Amount Offered in Settlement
The amount offered in settlement in this case is $1,350,000, which
includes all payments to settlement class members, service awards
to the class representatives, class counsel's attorneys' fees and
costs, settlement administration costs, and payment to California's
Labor and Workforce Development Agency (LWDA) under PAGA, but does
not include the employer's share of payroll taxes. The court
concludes the amount offered in settlement is not unreasonable in
this case.
Extent of Discovery Completed
The court must consider whether the process by which the parties
arrived at their settlement is truly the product of arm's length
bargaining, rather than collusion or fraud. A settlement is
presumed fair if it follows sufficient discovery and genuine
arms-length negotiation. Over the course of three years, counsel
has investigated the merits and legal basis of plaintiff's claims
through interviews, form interrogatories, document production
requests, and special interrogatories. Once the parties agreed to
pursue mediation, they exchanged information including defendant
providing access to a full list of every PetsHotel Manager and
PetsHotel Leader with contact information, providing comprehensive
documentation regarding the job duties of PetsHotel Managers and
PetsHotel Leaders; time records and pay records for the class
period along with employee handbooks and policies and procedures
applicable to the class members. All of this litigation conduct
supports the conclusion that this settlement is not the product of
fraud or overreaching by, or collusion among, the negotiating
parties.
Experience and Views of Counsel
Plaintiff's counsel has submitted a declaration outlining his
experience and in which he states the following. Plaintiff's
counsel has been a member of the State Bar of California since
1985. He has extensive experience in employment litigation, having
represented employees in employment litigation since 1995.
Plaintiff's counsel has participated in class action litigation for
over twenty years. His firm has been appointed as class counsel and
received adequate and fair settlements in over seventy class action
lawsuits in district courts and state courts of California
involving claims similar to those presented here. The court finds
that the view of plaintiff's counsel weighs in favor of granting
final approval.
Presence of a Governmental Participant
The settlement agreement contemplates payment of $340,000 of the
settlement amount to the LWDA under PAGA. This too weighs in favor
of approval of the settlement.
Reaction of the Class to Proposed Settlement
The absence of objections to a proposed class action settlement
supports the conclusion that the settlement is fair, reasonable,
and adequate. As noted above, no class members have objected to the
settlement, and only three class members have opted out. The lack
of objections or of numerous class members opting out of the
settlement suggests general approval of the settlement as a
reasonable one by the class.
Subtle Signs of Collusion
The court now turns to a review of whether any of the more subtle
signs of collusion noted by the Ninth Circuit are present here.
The award of attorneys' fees sought here one-third of the
settlement fund is at the upper end of amounts typically awarded by
courts within the Ninth Circuit. That said, the proposed
attorneys' fees award is not disproportionate to the monetary
distribution that the class and the cy pres beneficiary will
receive in this case. In addition, there is no reversionary clause
in the settlement agreement, and any residue will be distributed cy
pres to the designated beneficiary, the Salvation Army's California
programs for unemployed and underemployed workers.
The court is satisfied that the settlement is not the product of
collusion, and therefore concludes that the settlement is fair,
reasonable, and adequate.
Plaintiff's motion for final approval of the class action and
collective action settlement is granted, the settlement class is
certified, and the court approves the settlement as fair,
reasonable, and adequate.
William L. Milburn is confirmed as class representative, attorneys
Graham Hollis, Vilmarie Cordero, and Nathan Reese are confirmed as
class counsel, and Rust Consulting is confirmed as the settlement
administrator.
Plaintiff's motion for attorneys' fees, costs to class counsel, and
incentive payment to the class representative is granted, and the
court awards the following sums:
a. Class counsel shall receive $450,000 in attorneys' fees, and
$15,273.39 in costs; and
b. Named plaintiff William L. Milburn shall receive $5,000 as an
incentive payment;
The parties are directed to effectuate all terms of the settlement
agreement and any deadlines or procedures for distribution therein,
including distribution of any residue to the designated cy pres
beneficiary Salvation Army's California programs for unemployed and
underemployed workers.
This action is dismissed with prejudice in accordance with the
terms of the settlement agreement, with the court specifically
retaining jurisdiction to consider any further applications arising
out of or in connection with the settlement.
The Clerk of the Court is directed to close this case.
A full-text copy of the District Court's October 28, 2019 Order is
available at https://tinyurl.com/yxkymwy9 from Leagle.com
William L. Milburn, individually and on behalf of all other current
and former similarly situated and aggrieved employees of Defendants
in the State of California, Plaintiff, represented by Graham S.P.
Hollis- ghollis@grahamhollis.com - GrahamHollis, APC & Nathan
Jeremy Reese , GrahamHollis, APC, 3555 Fifth Avenue, Suite 200, San
Diego, CA 92103
PetSmart, Inc., Defendant, represented by Alexander L. Grodan -
alexander.grodan@morganlewis.com - Morgan Lewis & Bockius LLP &
Carrie Anne Gonell - carrie.gonell@morganlewis.com - Morgan Lewis
& Bockius LLP.
PFIZER INC: Continues to Defend Lipitor-Related Antitrust Suits
---------------------------------------------------------------
Pfizer Inc. said in its Form 10-Q Report filed with the Securities
and Exchange Commission on November 7, 2019, for the quarterly
period ended September 29, 2019, that the company continues to
defend itself from purported class action suits over sales of
Lipitor.
Beginning in November 2011, purported class actions relating to
Lipitor were filed in various federal courts against, among others,
Pfizer, certain affiliates of Pfizer, and, in most of the actions,
Ranbaxy, Inc. (Ranbaxy) and certain affiliates of Ranbaxy.
The plaintiffs in these various actions seek to represent
nationwide, multi-state or statewide classes consisting of persons
or entities who directly purchased, indirectly purchased or
reimbursed patients for the purchase of Lipitor (or, in certain of
the actions, generic Lipitor) from any of the defendants from March
2010 until the cessation of the defendants' allegedly unlawful
conduct (the Class Period).
The plaintiffs allege delay in the launch of generic Lipitor, in
violation of federal antitrust laws and/or state antitrust,
consumer protection and various other laws, resulting from (i) the
2008 agreement pursuant to which Pfizer and Ranbaxy settled certain
patent litigation involving Lipitor, and Pfizer granted Ranbaxy a
license to sell a generic version of Lipitor in various markets
beginning on varying dates, and (ii) in certain of the actions, the
procurement and/or enforcement of certain patents for Lipitor.
Each of the actions seeks, among other things, treble damages on
behalf of the putative class for alleged price overcharges for
Lipitor (or, in certain of the actions, generic Lipitor) during the
Class Period. In addition, individual actions have been filed
against Pfizer, Ranbaxy and certain of their affiliates, among
others, that assert claims and seek relief for the plaintiffs that
are substantially similar to the claims asserted and the relief
sought in the purported class actions described above.
These various actions have been consolidated for pre-trial
proceedings in a Multi-District Litigation (In re Lipitor Antitrust
Litigation MDL-2332) in the U.S. District Court for the District of
New Jersey.
In September 2013 and 2014, the District Court dismissed with
prejudice the claims by direct purchasers. In October and November
2014, the District Court dismissed with prejudice the claims of all
other Multi-District Litigation plaintiffs.
All plaintiffs have appealed the District Court's orders dismissing
their claims with prejudice to the U.S. Court of Appeals for the
Third Circuit.
In addition, the direct purchaser class plaintiffs appealed the
order denying their motion to amend the judgment and for leave to
amend their complaint to the U.S. Court of Appeals for the Third
Circuit.
In August 2017, the U.S. Court of Appeals for the Third Circuit
reversed the District Court's decisions and remanded the claims to
the District Court.
Also, in January 2013, the State of West Virginia filed an action
in West Virginia state court against Pfizer and Ranbaxy, among
others, that asserts claims and seeks relief on behalf of the State
of West Virginia and residents of that state that are substantially
similar to the claims asserted and the relief sought in the
purported class actions described above.
No further updates were provided in the Company's SEC report.
Pfizer Inc. discovers, develops, manufactures, and sells healthcare
products worldwide. It offers medicines and vaccines in various
therapeutic areas, including internal medicine, vaccines, oncology,
inflammation and immunology, and rare diseases under the Lyrica,
Chantix/Champix, Eliquis, Ibrance, Sutent, Xalkori, Inlyta, Xtandi,
Enbrel, Xeljanz, Eucrisa, BeneFix, Genotropin, and Refacto
AF/Xyntha brands. Pfizer Inc. was founded in 1849 and is
headquartered in New York, New York.
PFIZER INC: Hormone Therapy Consumer Class Action vs. Wyeth Ongoing
-------------------------------------------------------------------
Pfizer Inc. said in its Form 10-Q Report filed with the Securities
and Exchange Commission on November 7, 2019, for the quarterly
period ended September 29, 2019, that Wyeth LLC continues to defend
itself from the Hormone Therapy Consumer class action lawsuit.
A certified consumer class action is pending against Wyeth in the
U.S. District Court for the Southern District of California based
on the alleged off-label marketing of its hormone therapy products.
The case was originally filed in December 2003. The class consists
of California consumers who purchased Wyeth's hormone-replacement
products between January 1995 and January 2003 and who do not seek
personal injury damages therefrom.
The class seeks compensatory and punitive damages, including a full
refund of the purchase price.
No further updates were provided in the Company's SEC report.
Pfizer Inc. discovers, develops, manufactures, and sells healthcare
products worldwide. It offers medicines and vaccines in various
therapeutic areas, including internal medicine, vaccines, oncology,
inflammation and immunology, and rare diseases under the Lyrica,
Chantix/Champix, Eliquis, Ibrance, Sutent, Xalkori, Inlyta, Xtandi,
Enbrel, Xeljanz, Eucrisa, BeneFix, Genotropin, and Refacto
AF/Xyntha brands. Pfizer Inc. was founded in 1849 and is
headquartered in New York, New York.
PFIZER INC: Intravenous Saline Solution-Related Suit Ongoing
------------------------------------------------------------
Pfizer Inc. said in its Form 10-Q Report filed with the Securities
and Exchange Commission on November 7, 2019, for the quarterly
period ended September 29, 2019, that the company continues to
defend a consolidated class action suit related to sales of
intravenous saline solution.
Beginning in November 2016, purported class actions were filed in
the U.S. District Court for the Northern District of Illinois
against Hospira, Hospira Worldwide, Inc. and certain other
defendants relating to intravenous saline solution.
Plaintiffs seek to represent a class consisting of all persons and
entities in the U.S. who directly purchased intravenous saline
solution sold by any of the defendants from January 1, 2013 until
the time the defendants' allegedly unlawful conduct ceases.
Plaintiffs allege that the defendants' conduct restricts output and
artificially fixes, raises, maintains and/or stabilizes the prices
of intravenous saline solution sold throughout the U.S. in
violation of federal antitrust laws.
Plaintiffs seek treble damages (for themselves and on behalf of the
putative classes) and an injunction against defendants for alleged
price overcharges for intravenous saline solution in the U.S. since
January 1, 2013.
All of these actions have been consolidated in the U.S. District
Court for the Northern District of Illinois.
In July 2018, the District Court granted defendants' motions to
dismiss the consolidated amended complaint without prejudice.
Plaintiffs filed a second amended complaint in September 2018.
On February 3, 2017, the company completed the sale of its global
infusion systems net assets, HIS, which includes intravenous saline
solution, to ICU Medical. The litigation is the subject of
cross-claims for indemnification by both Pfizer and ICU Medical
under the purchase agreement.
No further updates were provided in the Company's SEC report.
Pfizer Inc. discovers, develops, manufactures, and sells healthcare
products worldwide. It offers medicines and vaccines in various
therapeutic areas, including internal medicine, vaccines, oncology,
inflammation and immunology, and rare diseases under the Lyrica,
Chantix/Champix, Eliquis, Ibrance, Sutent, Xalkori, Inlyta, Xtandi,
Enbrel, Xeljanz, Eucrisa, BeneFix, Genotropin, and Refacto
AF/Xyntha brands. Pfizer Inc. was founded in 1849 and is
headquartered in New York, New York.
PFIZER INC: Wyeth Still Defends Class Suit over Effexor XR Sales
----------------------------------------------------------------
Pfizer Inc. said in its Form 10-Q Report filed with the Securities
and Exchange Commission on November 7, 2019, for the quarterly
period ended September 29, 2019, that Wyeth LLC and its affiliates
continue to defend a class action lawsuit related to Effexor XR,
which is the extended-release formulation of Effexor.
Beginning in May 2011, actions, including purported class actions,
were filed in various federal courts against Wyeth and, in certain
of the actions, affiliates of Wyeth and certain other defendants
relating to Effexor XR, which is the extended-release formulation
of Effexor.
The plaintiffs in each of the class actions seek to represent a
class consisting of all persons in the U.S. and its territories who
directly purchased, indirectly purchased or reimbursed patients for
the purchase of Effexor XR or generic Effexor XR from any of the
defendants from June 14, 2008 until the time the defendants'
allegedly unlawful conduct ceased.
The plaintiffs in all of the actions allege delay in the launch of
generic Effexor XR in the U.S. and its territories, in violation of
federal antitrust laws and, in certain of the actions, the
antitrust, consumer protection and various other laws of certain
states, as the result of Wyeth fraudulently obtaining and
improperly listing certain patents for Effexor XR in the Orange
Book, enforcing certain patents for Effexor XR and entering into a
litigation settlement agreement with a generic drug manufacturer
with respect to Effexor XR.
Each of the plaintiffs seeks treble damages (for itself in the
individual actions or on behalf of the putative class in the
purported class actions) for alleged price overcharges for Effexor
XR or generic Effexor XR in the U.S. and its territories since June
14, 2008. All of these actions have been consolidated in the U.S.
District Court for the District of New Jersey.
In October 2014, the District Court dismissed the direct purchaser
plaintiffs' claims based on the litigation settlement agreement,
but declined to dismiss the other direct purchaser plaintiff
claims.
In January 2015, the District Court entered partial final judgments
as to all settlement agreement claims, including those asserted by
direct purchasers and end-payer plaintiffs, which plaintiffs
appealed to the U.S. Court of Appeals for the Third Circuit.
In August 2017, the U.S. Court of Appeals for the Third Circuit
reversed the District Court's decisions and remanded the claims to
the District Court.
No further updates were provided in the Company's SEC report.
Pfizer Inc. discovers, develops, manufactures, and sells healthcare
products worldwide. It offers medicines and vaccines in various
therapeutic areas, including internal medicine, vaccines, oncology,
inflammation and immunology, and rare diseases under the Lyrica,
Chantix/Champix, Eliquis, Ibrance, Sutent, Xalkori, Inlyta, Xtandi,
Enbrel, Xeljanz, Eucrisa, BeneFix, Genotropin, and Refacto
AF/Xyntha brands. Pfizer Inc. was founded in 1849 and is
headquartered in New York, New York.
PG&E CORP: Feb. 6 Hearing on Bid to Dismiss Investors' Suit
-----------------------------------------------------------
Pacific Gas and Electric Company said in its Form 10-Q Report filed
with the Securities and Exchange Commission on November 7, 2019,
for the quarterly period ended September 30, 2019, that the
requests of the company's officers, directors, and underwriters
seeking dismissal of a consolidated securities class action lawsuit
are set to be heard February 6, 2020.
In June 2018, two purported securities class actions were filed in
the United States District Court for the Northern District of
California, naming PG&E Corporation and certain of its current and
former officers as defendants, entitled David C. Weston v. PG&E
Corporation, et al. and Jon Paul Moretti v. PG&E Corporation, et
al., respectively.
The complaints alleged material misrepresentations and omissions
related to, among other things, vegetation management and
transmission line safety in various PG&E Corporation public
disclosures.
The complaints asserted claims under Section 10(b) and Section
20(a) of the federal Securities Exchange Act of 1934 and Rule 10b-5
promulgated thereunder, and sought unspecified monetary relief,
interest, attorneys’ fees and other costs.
Both complaints identified a proposed class period of April 29,
2015 to June 8, 2018. On September 10, 2018, the court consolidated
both cases and the litigation is now denominated In re PG&E
Corporation Securities Litigation.
The court also appointed the Public Employees Retirement
Association of New Mexico as lead plaintiff. The plaintiff filed a
consolidated amended complaint on November 9, 2018. After the
plaintiff requested leave to amend their complaint to add
allegations regarding the 2018 Camp fire, the plaintiff filed a
second amended consolidated complaint on December 14, 2018.
Due to the commencement of the Chapter 11 Cases, PG&E Corporation
and the Utility filed a notice on February 1, 2019, reflecting that
the proceedings are automatically stayed pursuant to Section 362(a)
of the Bankruptcy Code. On February 15, 2019, PG&E Corporation and
the Utility filed a complaint in Bankruptcy Court against the
plaintiff seeking preliminary and permanent injunctive relief to
extend the stay to the claims alleged against the individual
officer defendants.
On February 22, 2019, a purported securities class action was filed
in the United States District Court for the Northern District of
California, entitled York County on behalf of the York County
Retirement Fund, et al. v. Rambo, et al. (the "York County
Action").
The complaint names as defendants certain current and former
officers and directors, as well as the underwriters of four public
offerings of notes from 2016 to 2018.
Neither PG&E Corporation nor the Utility is named as a defendant.
The complaint alleges material misrepresentations and omissions in
connection with the note offerings related to, among other things,
PG&E Corporation's and the Utility's vegetation management and
wildfire safety measures. The complaint asserts claims under
Section 11 and Section 15 of the Securities Act of 1933, and seeks
unspecified monetary relief, attorneys' fees and other costs, and
injunctive relief.
On May 7, 2019, the York County Action was consolidated with In re
PG&E Corporation Securities Litigation.
On May 28, 2019, the plaintiffs in the consolidated securities
actions filed a third amended consolidated class action complaint,
which includes the claims asserted in the previously-filed actions
and names as defendants PG&E Corporation, the Utility, certain
current and former officers and directors, and the underwriters.
The action remains stayed as to PG&E Corporation and the Utility.
On August 28, 2019, the Bankruptcy Court denied PG&E Corporation's
and the Utility's request to extend the stay to the claims against
the officer, director, and underwriter defendants.
On October 4, 2019, the officer, director, and underwriter
defendants filed motions to dismiss the third amended complaint,
which motions are currently set to be heard by the District Court
on February 6, 2020.
No further updates were provided in the Company's SEC report.
Pacific Gas and Electric Company, doing business as PG&E, provides
utility services. The Company generates, transmits, and distributes
electricity and natural gas to residential and commercial users.
PG&E Corporation, through its subsidiary, Pacific Gas and Electric
Company, engages in the sale and delivery of electricity and
natural gas to residential, commercial, industrial, and
agricultural customers in northern and central California, the
United States. On January 29, 2019, PG&E Corporation Inc. filed a
voluntary petition for reorganization under Chapter 11 in the U.S.
Bankruptcy Court for the Northern District of California.
PG&E CORP: Vataj Securities Class Action Still Ongoing
------------------------------------------------------
Pacific Gas and Electric Company said in its Form 10-Q Report filed
with the Securities and Exchange Commission on November 7, 2019,
for the quarterly period ended September 30, 2019, that the
company's current director and certain current and former officers
continue to defend a purported securities class action suit
entitled, Vataj v. Johnson et al.
On October 25, 2019, a purported securities class action was filed
in the United States District Court for the Northern District of
California, entitled Vataj v. Johnson et al.
The complaint names as defendants a current director and certain
current and former officers of PG&E Corporation. Neither PG&E
Corporation nor the Utility is named as a defendant.
The complaint alleges materially false and misleading statements
regarding PG&E Corporation's wildfire prevention and safety
protocols and policies, including regarding the Utility's public
safety power shutoffs, that allegedly resulted in losses and
damages to holders of PG&E Corporation's securities.
The complaint asserts claims under Section 10(b) and Section 20(a)
of, and Rule 10b-5 promulgated under, the Exchange Act of 1934, and
seeks unspecified monetary relief, attorneys' fees and other
costs.
PG&E said, "Given the early stages of the litigations, including
but not limited to the fact that defendants' motions to dismiss
have not yet been heard and no discovery has occurred in the
consolidated class action litigation, and that the de-energization
class action was recently filed, PG&E Corporation and the Utility
are unable to reasonably estimate the amount of any potential
loss."
No further updates were provided in the Company's SEC report.
Pacific Gas and Electric Company, doing business as PG&E, provides
utility services. The Company generates, transmits, and distributes
electricity and natural gas to residential and commercial users.
PG&E Corporation, through its subsidiary, Pacific Gas and Electric
Company, engages in the sale and delivery of electricity and
natural gas to residential, commercial, industrial, and
agricultural customers in northern and central California, the
United States. On January 29, 2019, PG&E Corporation Inc. filed a
voluntary petition for reorganization under Chapter 11 in the U.S.
Bankruptcy Court for the Northern District of California.
POWER PLAY: Burress Sues over Biometric Data Collection
-------------------------------------------------------
NICHOLAS C. BURRESS, individually and on behalf of all others
similarly situated, Plaintiff v. POWER PLAY DISTRIBUTORS, LLC,
Defendant, Case No. 2019CH14006 (Ill. Cir., Cook Cty., Dec. 4,
2019) alleges violation of the Biometric Information Privacy Act.
The Plaintiff alleges in the complaint that the Defendants
disregarded its employees' statutorily protected privacy rights and
unlawfully collects, stores, and uses their biometric data in
violation of the Biometric Information Privacy Act. Prior to taking
the Plaintiff's biometric, the Defendants did not inform the
Plaintiff in writing that his biometrics were being collected,
stored, used, or disseminated, or publish any policy specifically
about the collection, retention, use, deletion, or dissemination of
biometrics.
Power Play Distributors, LLC was founded in 2002. The Company's
line of business includes the wholesale distribution of packaged
quick-frozen vegetables, juices, meats, fish, and other deep freeze
products. [BN]
The Plaintiff is represented by:
David Fish, Esq.
John Kunze, Esq.
Mara Baltabols, Esq.
THE FISH LAW FIRM, P.C.
200 East Fifth Avenue, Suite 123
Naperville, IL 60563
E-mail: dfish@fishlawfirm.com
kunze@fishlawfirm.com
mara@fishlawfirm.com
PRAXAIR INC: Gonzales Labor Suit Removed to C.D. California
-----------------------------------------------------------
Isaiah Gonzales, in his individual capacity, and on behalf of all
others similarly situated v. PRAXAIR, INC., a Delaware Corporation;
and DOES 1-100, inclusive, Case No. 19STCV42161, was removed from
the Superior Court of the State of California, County of Los
Angeles, to the U.S. District Court for the Central District of
California on Dec. 23, 2019.
The District Court Clerk assigned Case No. 2:19-cv-10831 to the
proceeding.
In the Complaint, the Plaintiff, a former employee of the
Defendant, alleges the following causes of action; (1) Failure to
Pay Minimum Wages in Violation of Labor Code; (2) Failure to Pay
Overtime Wages in Violation of Labor Code; (3) Failure to Provide
Rest Periods or Additional Wages in Lieu Thereof; (4) Failure to
Provide Meal Periods or Additional Wages in Lieu Thereof; and (5)
Failure to Time Pay Wages Due at Termination in Violation of Labor
Code.[BN]
The Defendants are represented by:
Carlos Jimenez, Esq.
Kimberli A. Williams, Esq.
LITTLER MENDELSON, P.C.
633 West 5th Street, 63rd Floor
Los Angeles, CA 90071
Phone: 213.443.4300
Fax: 213.443.4299
Email: cajimenez@littler.com
kawilliams@littler.com
PUBLIC REPUTATION: Has Made Unsolicited Calls, Austin Alleges
-------------------------------------------------------------
ROBERT AUSTIN, individually and on behalf of all others similarly
situated, Plaintiff v. PUBLIC REPUTATION MANAGEMENT SERVICES, LLC
D/B/A PR.BUSINESS, Defendant, Case No. 4:19-cv-00858 (E.D. Ark.,
Dec. 3, 2019) seeks to stop the Defendant's practice of making
unsolicited calls.
Public Reputation Management Services, LLC d/b/a PR.BUSINESS
provides marketing and brand management services. [BN]
The Plaintiff is represented by:
Jason Ryburn, Esq.
RYBURN LAW FIRM
650 S. Shackleford Rd., Ste. 231
Little Rock, AR 72211
Telephone: (501) 228-8100
Facsimile: (501) 228-7300
E-mail: jason@ryburnlawfirm.com
- and -
Anthony I. Paronich, Esq.
PARONICH LAW, P.C.
350 Lincoln Street, Suite 2400
Hingham, MA 02043
Telephone: (617) 485-0018
Facsimile: (508) 318-8100
E-mail: anthony@paronichlaw.com
PUTNAM MOTORS: Has Made Unsolicited Calls, Bartel Alleges
---------------------------------------------------------
JOANNE BARTEL, individually and on behalf of all others similarly
situated, Plaintiff v. PUTNAM MOTORS, INC., Defendant, Case No.
5:19-cv-02310 (C.D. Cal., Dec. 3, 2019) seeks to stop the
Defendant's practice of making unsolicited calls.
Putnam Motors, Inc. retails automobile vehicles. The Company offers
new and used cars, vans, trucks, sport utility vehicles, parts, and
accessories, as well as financing, maintenance, and repair
services. [BN]
The Plaintiff is represented by:
Craig M. Nicholas, Esq.
Alex Tomasevic, Esq.
NICHOLAS & TOMASEVIC, LLP
225 Broadway, 19th Floor
San Diego, CA 92101
Telephone: (619) 325-0492
Facsimile: (619) 325-0496
E-mail: cnicholas@nicholaslaw.org
@nicholaslaw.org
- and -
Ignacio J. Hiraldo, Esq.
IJH LAW
14 NE First Ave. 10th Floor
Miami, FL 33132
Telephone: (786) 351.8709
E-mail: ijhiraldo@ijhlaw.com
- and -
Andrew J. Shamis, Esq.
Garrett O. Berg, Esq.
SHAMIS & GENTILE, P.A.
14 NE 1st Avenue, Suite 1205
Miami, FL 33132
Telephone: (305) 479-2299
E-mail: ashamis@shamisgentile.com
gberg@shamisgentile.com
QTC MEDICAL: Faces Masci Suit Over Unsolicited Fax Advertisements
-----------------------------------------------------------------
Vance Masci, individually and as the representative of a class of
similarly-situated persons v. QTC MEDICAL GROUP, INC., a California
corporation, Case No. 2:19-cv-10844 (C.D. Cal., Dec. 23, 2019),
challenges the Defendant's practice of sending unsolicited
advertisements by facsimile, which violates the Telephone Consumer
Protection Act of 1991, as amended by the Junk Fax Prevention Act
of 2005.
The Defendant have sent facsimile transmissions of unsolicited
advertisements to the Plaintiff and the Class in violation of the
TCPA, including the facsimile transmission of an unsolicited
advertisement on July 3, 2018. The Fax promotes the availability
and quality of the Defendant's property, goods, or services because
it advertises and solicits Plaintiff and the other members of the
Class to join its network of IME and Medical Record Review
providers, says the complaint.
Plaintiff Vance Masci is a natural person.
QTC MEDICAL GROUP, INC., is a California corporation with its
principal place of business in San Dimas, California.[BN]
The Plaintiff is represented by:
John R. Habashy, Esq.
Tiffany N. Buda, Esq.
LEXICON LAW, PC
633 W. Fifth St., 28th Floor
Los Angeles, CA 90071
Phone: 213-233-5900
Fax: 888-373-2107
Email: john@lexiconlaw.com
tiffany@lexiconlaw.com
- and -
Ryan M. Kelly, Esq.
ANDERSON + WANCA
3701 Algonquin Road, Suite 500
Rolling Meadows, IL 60008
Phone: 847-368-1500
Fax: 847-368-1501
Email: rkelly@andersonwanca.com
QUIKTRAK INC: Removes Wallace Suit to N.D. California
-----------------------------------------------------
The Defendant in the case of ALBERT WALLACE, individually and on
behalf of all others similarly situated, Plaintiff v. QUIKTRAK,
INC.; and DOES 1 THROUGH 50, inclusive, Defendants, filed a notice
to remove the lawsuit from the Superior Court of the State of
California, County of Alameda (Case No. RG18925519) to the U.S.
District Court for the Northern District of California on December
2, 2019. The clerk of court for the Northern District of California
assigned Case No. 3:19-cv-07895-TSH. The case is assigned to Thomas
S. Hixson.
Quiktrak, Inc. provides professional services. The Company offers
asset verification, inspection, auditing, inventory, and risk
management services. Quiktrak serves finance industries worldwide.
[BN]
The Defendants are represented by:
Marlene S. Muraco, Esq.
Adam J. Fiss, Esq.
Linda Nguyen Bollinger, Esq.
LITTLER MENDELSON, P.C.
50 W. San Fernando, 7th Floor
San Jose, CA 95113-2303
Telephone: (408) 998-4150
Facsimile: (408) 288-5686
E-mail: mmuraco@littler.com
afiss@littler.com
lbollinger@littler.com
REALGY LLC: Shelton Sues Over Nuisance Telemarketing Practices
--------------------------------------------------------------
James Everett Shelton, individually and on behalf of a class of all
persons and entities similarly situated v. REALGY, LLC, Case No.
3:19-cv-01999 (D. Conn., Dec. 22, 2019), is brought under the
Telephone Consumer Protection Act, a federal statute enacted in
response to widespread public outrage about the proliferation of
intrusive, nuisance telemarketing practices.
The Plaintiff alleges that the Defendant, or a vendor on their
behalf, sent him an autodialed telemarketing calls for purposes of
promoting their goods and services without his prior express
written consent. The Plaintiff also received multiple telemarketing
calls despite the fact that his number was registered on the
National Do Not Call Registry.
Plaintiff James Everett Shelton resides in Pennsylvania.
Realgy is in the energy marketing business.[BN]
The Plaintiff is represented by:
Anthony I. Paronich, Esq.
PARONICH LAW, P.C.
350 Lincoln Street, Suite 2400
Hingham, MA 02043
Phone: (508) 221-1510
Email: anthony@paronichlaw.com
REGRESO FINANCIAL: $200K Lawyer Fees Awarded in Karcauskas Lawsuit
------------------------------------------------------------------
Judge Fernando M. Olguin of the U.S. District Court for the Central
District of California has entered judgment on attorneys fees in
the case captioned POVILAS KARCAUSKAS, individually and on behalf
of all others similarly situated, Plaintiff, v. REGRESO FINANCIAL
SERVICES, LLC, et al., Defendants, Case No. CV 15-9225 FMO (RAOx)
(C.D. Cal.).
Pursuant to the Court's Order on the Final Approval of Class Action
Settlement; Approval of Attorney's Fees, Costs & Incentive Payment,
filed contemporaneously with the filing of the Judgment, Judge
Olguin adjudged that:
(i) Plaintiff Povila Karcauskas be paid a statutory award of
$2,000 and an incentive payment of $3,000 for a total
award of $5,000;
(ii) the class counsel be paid $200,000 in attorney's fees
and costs; and
(iii) the Claims Administrator, First Choice, be paid for its
fees and expenses, in accordance with the terms of the
Settlement Agreement.
All class members who did not validly and timely request exclusion
from the settlement have released their claims, as set forth in the
Settlement Agreement, against any of the released parties. Except
as to any class members who have validly and timely requested
exclusion, the action is dismissed with prejudice, with all parties
to bear their own fees and costs except as set forth in the
Judgment and in the prior orders of the Court.
A full-text copy of the Court's Nov. 12, 2019 Judgment is available
at https://is.gd/shtZwp from Leagle.com.
Povilas Karcauskas, on behalf of himself and all others similarly
situated, Plaintiff, represented by Robert Stempler --
Robert@StopCollectionHarassment.com -- Consumer Law Office of
Robert Stempler APC & O. Randolph Bragg -- rand@horwitzlaw.com --
Horwitz Horwitz and Associates, pro hac vice.
Regreso Financial Services LLC, Defendant, represented by Jack D.
Hull, II -- bgoldsmith@goldsmithcalaw.com -- Goldsmith and Hull APC
& Michael Lawrence Goldsmith -- mlg@knoxricksen.com -- Goldsmith
and Hull APC.
Goldsmith and Hull APC & William I Goldsmith, Defendants,
represented by Larissa G. Nefulda --
Larissa.Nefulda@lewisbrisbois.com -- Lewis Brisbois Bisgaard and
Smith LLP & Stephen H. Turner -- Turner@lewisbrisbois.com -- Lewis
Brisbois Bisgaard and Smith LLP.
RENT-A-CENTER INC: Discovery Ongoing in Russell Class Action
------------------------------------------------------------
Rent-A-Center, Inc. said in its Form 10-Q Report filed with the
Securities and Exchange Commission on November 7, 2019, for the
quarterly period ended September 30, 2019, that discovery is
ongoing in the class action suit entitled, Velma Russell v.
Acceptance Now.
This purported class action arising out of calls made by Acceptance
Now to customers' reference (s) was filed on January 29, 2019 in
Massachusetts state court. Specifically, plaintiffs seek to certify
a class representing any references of customers (within the state
of Massachusetts) during the 4 years prior to the filing date that
were contacted by Acceptance Now more frequently during a 12 month
period than is permitted by Massachusetts state law.
The plaintiffs are seeking injunctive relief and statutory damages
of $25 per reference which may be tripled to $75 per reference.
References are not parties to the company's consumer arbitration
agreement.
Rent-A-Center said, "We operate 12 Acceptance Now locations in
Massachusetts. Discovery has commenced and a mediation took place
in September 2019. We intend to continue to vigorously defend these
claims, however, we cannot assure you that we will be found to have
no liability in this matter."
Rent-A-Center, Inc., together with its subsidiaries, leases
household durable goods to customers on a rent-to-own basis. The
company operates through four segments: Core U.S., Acceptance Now,
Mexico, and Franchising. Rent-A-Center, Inc. was founded in 1986
and is headquartered in Plano, Texas.
RICO PAN INC: Ramirez Seeks to Recover Minimum and Overtime Wages
-----------------------------------------------------------------
Sandra Ramirez, and other similarly situated individuals v. RICO
PAN, INC., RAFAEL PEREZ and LIZ CABALLERO, Case No.
1:19-cv-25241-XXXX (S.D. Fla., Dec. 20, 2019), is seeking to
recover money damages for unpaid minimum and overtime wages under
the laws of the United States, pursuant to the Fair Labor Standards
Act.
The Plaintiff worked an average of 43-50 hours per week without
being compensated at the rate of not less than one- and one-half
times the regular rate at which she was employed. The Defendant
never paid the Plaintiff at time and one half for the time she
worked in excess of 40 hours per week, says the complaint.
The Plaintiff was employed by the Defendants as a waitress.
The Defendant is a restaurant and, through its business activity,
affects interstate commerce.[BN]
The Plaintiffs are represented by:
R. Martin Saenz, Esq.
SAENZ & ANDERSON, PLLC
20900 NE 30th Avenue, Ste. 800
Aventura, FL 33180
Phone: (305) 503-5131
Facsimile: (888) 270-5549
Email: msaenz@saenzanderson.com
RICOH USA: $2.2MM De Leon Suit Deal Gets Initial Court Approval
---------------------------------------------------------------
The United States District Court for the Northern District of
California issued an Order granting Plaintiff's Unopposed Motion
for Preliminary Approval of the Parties' Class and Collective
Action Settlement Agreement in the case captioned AUGUSTO DE LEON,
Plaintiff, v. RICOH USA, INC., et al., Defendants, Case No.
18-cv-03725-JSC (N.D. Cal.).
Augusto De Leon brings a class action against Ricoh USA, Inc.
(Ricoh USA), Ricoh Americas Corporation (Ricoh Americas), and IKON
Office Solutions, Inc. (IKON) (Defendants), alleging wage and hour
violations under California state law, and violations of the Fair
Labor and Standards Act (FLSA), among other claims.
Settlement Agreement
Proposed Class
The proposed Settlement Class consists of all current or former
hourly non-exempt employees of Defendants who held the position of
technology service technician, field support representative, and/or
other positions engaged in similar work for Defendants in the state
of California during the period of May 22, 2014 through the
Preliminary Approval Date (Class Period).
Payment Terms
Ricoh agrees to pay $2.2 million (Gross Settlement Amount) to the
Court-approved settlement administrator (Claims Administrator)
within 15 days of the Court's order granting final approval.
The Claims Administrator will pay the following from the Gross
Settlement Amount: (1) $55,000 as consideration for release of the
FLSA claim by participating FLSA collective members (FLSA
Settlement Amount) (2) $75,000 to LWDA to cover PAGA civil
penalties6 (3) $10,000 Service Award to Plaintiff as Class
Representative; (4) $733,333.33 to Class Counsel7 for fees; (5)
$15,000 to Class Counsel for costs and (6) $35,000 to the Claims
Administrator.
A class action settlement agreement must be fair, adequate, and
reasonable. Where, as here, parties reach an agreement before class
certification, courts must peruse the proposed compromise to ratify
both the propriety of the certification and the fairness of the
settlement. If the court preliminarily certifies the class and
finds the settlement appropriate after a preliminary fairness
evaluation, then the class will be notified, and a final fairness
hearing scheduled to determine if the settlement is fair, adequate,
and reasonable pursuant to Rule 23.
Thus, the Court addresses conditional certification of the class
action and FLSA collective action separately.
Conditional Certification of the Settlement Class
Class actions must meet the following requirements for
certification:
(1) the class is so numerous that joinder of all members is
impracticable (2) there are questions of law or fact common to the
class (3) the claims or defenses of the representative parties are
typical of the claims or defenses of the class and (4) the
representative parties will fairly and adequately protect the
interests of the class.
Rule 23(a)
The Rule 23(a) factors are satisfied. First, there are
approximately 900 individuals who fall in the Settlement Class. The
putative class thus satisfies the numerosity requirement.
Second, the commonality requirement is satisfied because there are
common questions of law and fact arising out of Ricoh's allegedly
unlawful employment practices that effected all putative class
members, who worked for Ricoh in California performing the same or
similar work during the same time period.
Third, the typicality requirement is similarly satisfied because
Plaintiff's claims challenge a course of conduct that applied to
all putative class members, and thus, all members suffered the same
or similar injury.
Finally, Plaintiff and class counsel appear to be adequate
representatives of the class. Plaintiff was employed by Defendants
during the class period and allegedly injured by the same course of
conduct common to all putative class members; thus, Plaintiff's
interest in this litigation is aligned with that of the class.
Rule 23(b)(3)
As previously discussed, Rule 23(b)(3) requires establishing the
predominance of common questions of law or fact and the superiority
of a class action relative to other available methods for the fair
and efficient adjudication of the controversy.
The Court concludes that there are no predominance or superiority
concerns because the challenged policies are common to all class
members.
Predominance
Rule 23(b)(3) first requires predominance of common questions over
individual ones such that the adjudication of common issues will
help achieve judicial economy.
The Court is satisfied that the core common questions in this case,
the lawfulness of Ricoh's policies and practices regarding
compensation, meal and rest breaks, expense reimbursement, accrual
and payment of sick leave, wage statements, and maintenance of
records, among others predominate over any differences regarding
its implementation of those policies with respect to individual
employees.
Accordingly, the Court concludes that common questions of law and
fact predominate.
Superiority
A class action is a superior means of adjudicating a dispute where
classwide litigation of common issues will reduce litigation costs
and promote greater efficiency.
First, there is no indication that members of the proposed class
have a strong interest in individual litigation or an incentive to
pursue their claims individually, given the amount of damages
likely to be recovered relative to the resources required to
prosecute such an action.
Second, any concerns over manageability of the class action in this
case would not weigh in favor of individual litigation given that
Ricoh's liability to class members depends on common proof
regarding the allegedly unlawful employment practices at issue.
Finally, class actions are preferred in wage-and-hour actions when
individual employees may forgo pursuing their claims due to fear of
retaliation.
Accordingly, the Court concludes that conditional certification of
the class for settlement purposes is proper.
Preliminary Approval of the Settlement Agreement
In determining whether a class action settlement agreement is fair,
adequate, and reasonable to all concerned, courts generally
consider the following factors:
(1) the strength of the plaintiff's case (2) the risk, expense,
complexity, and likely duration of further litigation (3) the risk
of maintaining class action status throughout the trial (4) the
amount offered in settlement (5) the extent of discovery completed
and the stage of the proceedings (6) the experience and views of
counsel (7) the presence of a governmental participant and (8) the
reaction of the class members of the proposed settlement.
However, when a settlement agreement is negotiated prior to formal
class certification, consideration of these eight .factors alone is
insufficient.
Preliminary approval is thus appropriate where the proposed
settlement appears to be the product of serious, informed,
non-collusive negotiations, has no obvious deficiencies, does not
improperly grant preferential treatment to class representatives or
segments of the class, and falls within the range of possible
approval.
The Fairness Factors
Settlement Process
The first factor concerns the means by which the parties arrived at
settlement. To approve a proposed settlement, a court must be
satisfied that the parties have engaged in sufficient investigation
of the facts to enable the court to intelligently make an appraisal
of the settlement.
Plaintiff submits the declaration of his counsel, R. Craig Clark,
inter alia, in support of the instant motion. Mr. Clark attests
that Plaintiff's counsel conducted a thorough investigation into
the facts and legal issues in the case before mediation by: (1)
interviewing Plaintiff and evaluating the documents and information
he provided (2) propounding written discovery on Ricoh consisting
of eleven interrogatories and nine requests for production of
documents, which yielded hundreds of pages of documents including,
but not limited to, policy and training documents and Plaintiff's
time and payroll records (3) interviewing percipient witnesses.
The parties then attended a full day of private mediation with Ms.
Klerman, a well-respected and experienced class action mediator.
The parties engaged in extensive negotiations assisted by Ms.
Klerman and presented their respective positions on the legal and
factual issues raised, as well as the asserted liability. The
parties reached a settlement in principle at the mediation, and
afterwards continued to negotiate the terms and conditions of the
settlement before reducing their agreement to writing.
On balance, the Settlement Agreement appears to be the product of
serious, informed, non-collusive negotiations.
This factor thus weighs in favor of preliminary approval.
Obvious Deficiencies
The Court must next consider whether there are obvious deficiencies
in the Settlement Agreement. Here, the Court finds no obvious
deficiencies on the face of the Settlement Agreement or the
stipulated amendment to same that would preclude preliminary
approval.
Lack of Preferential Treatment
Plaintiff asserts that the service award is justified because he
has given up more than any other class member by agreeing to
release all known and unknown claims against Defendants. The Court
notes, however, that the amount requested is higher than amounts
typically awarded by courts in this Circuit. Indeed, Plaintiff's
counsel recognizes that the amount exceeds the typical incentive
awards awarded in the Ninth Circuit and attests that he will
address the propriety of the Service Award in the papers regarding
final approval.
The Court will defer ruling on the appropriateness of the amount of
the requested Service Award until final approval. At this stage
there is no indication that the Service Award in general
constitutes preferential treatment that would defeat preliminary
approval.
Range of Possible Approval
In determining whether the Settlement Agreement falls within the
range of possible approval, the Court must focus on substantive
fairness and adequacy and consider Plaintiff's expected recovery
balanced against the value of the settlement offer. Here, Mr. Clark
attests that in reaching the proposed settlement, Plaintiff's
counsel considered, inter alia:
the information and documents obtained in the litigation and/or
otherwise exchanged pursuant to the mediation privilege, the
experience of the named Plaintiff, the strengths and weaknesses of
the case, the size of the class/collective, the uncertain outcome
and risk of litigating complex actions.
Thus, the Gross Settlement Amount of $2.2 million represents
approximately 10.85% of the monetary relief sought in this case.
Mr. Clark attests that the settlement amount is reasonable in light
of all the facts surrounding the claims and defenses, and describes
how the valuation of Plaintiff's claims were discounted in light
of specific risks and costs associated with this case.
The Court is satisfied at this stage that continued litigation
rather than settlement presents risks to Plaintiff and putative
class members regarding any recovery. Thus, in sum, the risks and
costs of continued litigation at least balance the benefit of the
estimated payout to class members, warranting preliminary approval
and comment from class members.
Consideration of the fairness factors warrants preliminary approval
of the Settlement Agreement.
Accordingly, the Court GRANTS preliminary approval of the class and
collective action settlement as follows:
1. The Clark Law Group and United Employees Law Group are
appointed as Class Counsel.
2. The Notice shall be corrected as set forth in this Order prior
to mailing and mailed to class members in accordance with the
notice plan by December 19, 2019.
3. On or before January 2, 2020, Plaintiff shall file with the
Court a copy of the Notice mailed to class
members.
4. The deadline for class members to submit a Request for
Exclusion shall be 45-days after the initial mailing of the Notice,
and no later than February 2, 2020.
5. The deadline for class members to object to the Settlement
Agreement shall be 45-days after the initial mailing of the Notice,
and no later than February 2, 2020.
6. Class Counsel shall file a motion for attorneys' fees and costs
by February 20, 2020.
7. Plaintiff shall file his Motion for Final Approval by February
20, 2020. The motion shall include a copy of the Notice ultimately
sent to the class along with the other information, as available,
suggested by the Northern District of California Procedural
Guidance for Class Action Settlements.
8. The deadline for class members to object to Class Counsel's
motion for attorneys' fees and costs shall be March 12, 2020.
9. The parties shall appear before this Court for a final approval
hearing on March 26, 2020 at 9:00 a.m. in Courtroom F, 450 Golden
Gate Ave., San Francisco, California.
A full-text copy of the District Court's November 25, 2019 Order is
available at https://tinyurl.com/v9fggjc from Leagle.com.
Augusto De Leon, as an individual, on behalf of himself, and all
persons similarly situated, Plaintiff, represented by Paige D.
Chretien , Clark Law Group, 820 W G St, Apt 125, San Diego, CA
92101-5935, Monique R. Rodriguez - mrodriguez@clarklawyers.com -
Clark Law Group, R. Craig Clark , Clark Law Firm, 205 W Date Street
San Diego, CA 92101 & Walter Lewis Haines - whaines@uelglaw.com -
United Employees Law Group, P.C.
Ricoh USA, Inc., an Ohio corporation authorized to do business in
the state of California, IKON Office Solutions, Inc., an Ohio
corporation authorized to do business in the state of California &
Ricoh Americas Corporation, a Delaware corporation previously
authorized to do business in the state of California and succeeded
by Ricoh USA, Inc., Defendants, represented by Ryan Ashley McCoy -
rmccoy@seyfarth.com - Seyfarth Shaw LLP, Amanda I. Fry -
afry@seyfarth.com - Seyfarth Shaw LLP, Candace Rose DesBaillets -
cdesbaillets@cdflaborlaw.com - Carothers, DiSante & Freudenberger
LLP & John Richard Giovannone - jgiovannone@cdflaborlaw.com -
Carothers DiSante & Freudenberger LLP.
S-L DISTRIBUTION: Marston Sues Over Deductions From IBOs' Wages
---------------------------------------------------------------
Kevin Marston and Belal Safi, on behalf of themselves and others
similarly situated v. S-L DISTRIBUTION COMPANY, LLC, Case No.
1:19-cv-02187-JEJ (M.D. Pa., Dec. 20, 2019), accuses the Defendant
of violating the New Hampshire wage laws by making
diversions/withholdings from the earnings of the Plaintiffs and
other independent business owners.
These diversions/withholdings are itemized on weekly "settlement
sheets" and include, inter alia, diversions/withholdings for route
loan repayments, truck loan repayments, truck rental payments, and
electronic equipment. In addition, the Plaintiffs and other IBOs
regularly incur work-related expenses for, inter alia, gas, vehicle
maintenance/repair, and insurance. The Defendant does not reimburse
the Plaintiffs and other IBOs for such expenses, which are directly
related to the work the Plaintiffs and other IBOs perform for the
Defendant.
Both Plaintiffs Marston and Safi independently estimate that,
during the applicable limitations period, the monetary value of the
deductions and expenses exceed $75,000, says the complaint.
The Plaintiffs work for Defendant as IBOs in New Hampshire.
The Defendant, according to its Web site, "is a wholesale
distributor of various snack food products manufactured by
subsidiaries and affiliates of Snyder's-Lance, Inc."[BN]
The Plaintiff is represented by:
Peter Winebrake, Esq.
R. Andrew Santillo, Esq.
Mark J. Gottesfeld, Esq
WINEBRAKE & SANTILLO, LLC
Twining Office Center, Suite 211
715 Twining Road
Dresher, PA 19025
Phone: (215) 884-2491
- and -
Harold L. Lichten, Esq.
Matthew Thomson, Esq.
Zachary L. Rubin, Esq.
LICHTEN & LISS-RIORDAN, P.C.
729 Boylston St., Suite 2000
Boston, MA 02116
Phone: (617) 994-5800
- and -
Chad Hatmaker, Esq.
J. Keith Coates, Esq.
WOOLF, MCCLANE, BRIGHT, ALLEN & CARPENTER, PLLC
Post Office Box 900
Knoxville, TN 37901
Phone: (865) 215-1000
S1 SECURITY: McKay-Taylor Seeks to Recover Unpaid Overtime Wages
-----------------------------------------------------------------
Jeneia McKay-Taylor, Jade McKay-Taylor, Brandon Taylor, Robert
Taylor, and other similarly situated individuals v. S1 SECURITY
GROUP INC, and ROLANDO E. PALMA, individually, Case No.
0:19-cv-63143-XXXX (S.D. Fla., Dec. 23, 2019), is brought to
recover money damages for unpaid overtime wages under the Fair
Labor Standards Act.
The Plaintiffs were employed by the Defendants.
During the Plaintiffs' employment time, they always worked more
than 40 hours every week period. Nevertheless, the Plaintiffs never
were properly compensated for the overtime hours worked. The
Defendants willfully failed to pay the Plaintiffs overtime wages at
the rate of time and one-half their regular rate for every hour
that they worked in excess of 40, says the complaint.
The Defendants are a Florida corporation having its main place of
business in Miami-Dade, and Broward County, Florida.[BN]
The Plaintiffs are represented by:
Zandro E. Palma, Esq.
ZANDRO E. PALMA, P.A.
9100 S. Dadeland Blvd., Suite 1500
Miami, FL 33156
Phone: (305) 446-1500
Facsimile: (305) 446-1502
Email: zep@thepalmalawgroup.com
SAREPTA THERAPEUTICS: Continues to Defend Salinger Class Suit
-------------------------------------------------------------
Sarepta Therapeutics, Inc. said in its Form 10-Q Report filed with
the Securities and Exchange Commission on November 7, 2019, for the
quarterly period ended September 30, 2019, that the company
continues to defend a class action suit initiated by Andrew
Salinger.
On August 30, 2019, Plaintiff Andrew Salinger filed a putative
class action complaint against the Company and two of its current
officers, Douglas S. Ingram and Sandesh Mahatme, in the United
States District Court for the Southern District of New York.
The complaint alleges that the Defendants violated Section 10(b) of
the Securities Exchange Act of 1934, as amended, and SEC Rule 10b-5
promulgated thereunder, as well as Section 20(a) of the Exchange
Act, in connection with the Company's disclosures related to
golodirsen.
The proposed class consists of all persons or entities who acquired
Company securities between September 6, 2017 and August 19, 2019.
Sarepta said, "We are unable to provide an estimate of possible
loss or range of possible loss."
Sarepta Therapeutics, Inc. is commercial-stage biopharmaceutical
company focused on helping patients through the discovery and
development of unique RNA-targeted therapeutics, gene therapy and
other genetic medicine approaches for the treatment of rare
neuromuscular diseases. The company is based in Cambridge,
Massachusetts.
SCHENKER INC: Faces Orpilla Suit Alleging Violation of FCRA
-----------------------------------------------------------
Michelle Orpilla, on behalf of herself, all others similarly
situated v. SCHENKER, INC., a New York company; and DOES 1 through
50, inclusive, Case No. 19CV358821 (Cal. Super., Santa Clara Cty.,
Dec. 23, 2019), is brought against the Defendants for alleged
violations of the Fair Credit Reporting Act and similar California
laws.
The Plaintiff alleges that the Defendants routinely acquire
consumer, investigative consumer and/or consumer credit reports to
conduct background checks on the Plaintiff and other prospective,
current and former employees and use information from credit and
background reports in connection with their hiring process without
providing proper disclosures and obtaining proper authorization in
compliance with the law. The Plaintiff, individually and on behalf
of all others similarly situated current, former and prospective
employees, seeks compensatory and punitive damages due to
Defendants' systematic and willful violations of the FCRA.
The Plaintiff was employed with the Defendants beginning November
20, 2017.
The Defendant is a corporation organized and existing under the
laws of New York and doing business in the State of
California.[BN]
The Plaintiff is represented by:
Shaun Setareh, Esq.
William M. Pao, Esq.
Alexandra R. McIntosh, Esq.
SETAREH LAW GROUP
315 South Beverly Drive, Suite 315
Beverly Hills, CA 90212
Phone (310) 888-7771
Facsimile (310) 888-0109
Email: shaun@setarehlaw.com
william@setarehlaw.com
alex@setarehlaw.com
SENIOR LIFESTYLE: Wilk Sues Over Failure to Protect Personal Info
-----------------------------------------------------------------
Lana Wilk, individually, and on behalf of all others similarly
situated v. SENIOR LIFESTYLE CORPORATION, an Illinois corporation,
Case No. 2019CH14842 (Ill. Cir., Cook Cty., Dec. 23, 2019), is
brought against the Defendant for its failure to protect the
Plaintiff's and Class members' personally identifiable information,
including their full names, addresses, and Social Security
numbers.
As Plaintiff's and Class members' current or former employer, the
Defendant is required to protect the Plaintiff's and Class members'
PII, and implement and maintain appropriate training, policies,
procedures, and security measures to protect its employees' PII.
The Defendant failed to do so, says the complaint.
The Plaintiff now brings claims against the Defendant for violation
of the Illinois Consumer Fraud and Deceptive Practices Act,
violation of the Illinois Personal Information Protection Act,
Negligence, and violation of the Consumer Fraud and Deceptive Trade
Practices Acts of the Various States and District of Columbia.
The Plaintiff is a natural person and resident and citizen of
Illinois and is a former employee of the Defendant.
The Defendant owns and operates a chain of senior living apartments
and retirement communities in numerous states.[BN]
The Plaintiff is represented by:
Thomas A. Zimmerman, Jr., Esq.
Sharon A. Harris, Esq.
Matthew C. De Re, Esq.
Jeffrey D. Blake, Esq.
ZIMMERMAN LAW OFFICES, P.C.
77 W. Washington Street, Suite 1220
Chicago, IL 60602
Office: (312) 440-0020
Facsimile: (312) 440-4180
Email: irm@attorneyzim.com
Web site: http://www.attorneyzim.com/
SMILEDIRECTCLUB INC: Harts Sues Over Breaches of Fiduciary Duty
---------------------------------------------------------------
KERRY HARTS, derivatively on Behalf of SMILEDIRECTCLUB, INC., v.
DAVID KATZMAN, STEVEN KATZMAN, KYLE WAILES, ALEXANDER FENKELL,
JORDAN KATZMAN, SUSAN GREENSPAN RAMNELT, RICHARD SCHNALL, WILLIAM
H. FRIST, CAROL HAMILTON, RICHARD F. WALLMAN, CD&RSDC, HOLDING,
INC. and CAMELOT VENTURE GROUP, Defendants, and SMILEDIRECTCLUB,
INC., a Delaware Corporation, Nominal Defendant, Case No. 2019-1027
(Del. Ch., Dec. 23, 2019), seeks to recover damages for breaches of
fiduciary duty of loyalty against the Defendant Directors on behalf
of SDC for the Plaintiff and shareholders, who are similarly
situated.
The lawsuit also seeks to have the Defendants, who are identified
as "Insider Selling Defendants," disgorge the insider trading
profits they earned while in possession of material adverse
non-public information about SDC impending regulations and its
business operations rightfully belonging to SDC.
Through the wrongful conduct of the Defendant Directors,
constituting self-dealing and/or other acts of disloyalty,
Defendants David Katzman, Steven Katzman, Alexander Fenkell, Jordan
Katzman, Camelot Venture Group, CD&R, SDC Holding, Inc. and Remnelt
were allowed to divert approximately $775 million of proceeds of
the SDC Initial Public Offering, which was issued at a price of
$23.00 per share on September 12, 2019, the Plaintiff alleges. The
Plaintiff asserts that the Selling Shareholders' sales price of SDC
stock and units was inflated and overvalued by approximately $15
per share as evidenced by the price deflation experienced by SDC
stock in the market almost immediately after the IPO opened and
when SDC revealed previously undisclosed material facts about its
businesses and revenue generating model and that SDC would be
subject to recently enacted legislation in California that had been
known to defendants since July 2019.
This action also seeks to recover damages suffered by SDC as a
result of all Director Defendants' breach of fiduciary duty of
loyalty by allowing and facilitating SDS's IPO and Reorganization
Transaction in connection with the IPO through a materially false
and misleading Registration Statement and Prospectus and
amendments, which was intended primarily to maximize the price at
which the Insider Selling Defendants could cash out hundreds of
millions of dollars of units and shares of SDC and/or its
predecessor by selling same back to SDC. The IPO was intended
primarily for the benefit of the Controlling Shareholders rather
than SDC and the Defendant Directors' decision to authorize the IPO
and the Offering Materials and use of SDC IPO proceeds to buy
Selling Controlling Shareholders' equity and the issuance of Class
B shares is not protected by the business judgment rule, says the
complaint.
Plaintiff Kerry Harts purchased shares of SDC Class A common stock
issued in the IPO offering on September 12, 2019.
The Company is incorporated under the laws of Delaware with its
principal executive offices located in Nashville, Tennessee.[BN]
The Plaintiff is represented by:
Lee Squitieri, Esq.
SQUITIERI & FEARON, LLP
32 East 57th Street, 12th Floor
New York, NY 10022
Phone: (212)421-6492
- and -
Blake A. Bennett, Esq.
COOCH AND TAYLOR, P.A.
The Nemours Building
1007 N. Orange St., Suite 1120
Wilmington, DE 19801
Phone: (302) 984-3800
SPECTRUM PHARMACEUTICAL: MOU Reached in Hartsock Class Action
-------------------------------------------------------------
Spectrum Pharmaceuticals, Inc. said in its Form 10-Q Report filed
with the Securities and Exchange Commission on November 7, 2019,
for the quarterly period ended September 30, 2019, that the company
has entered into a memorandum of understanding for the collective
settlement of the consolidated class action suit entitled, Glen
Hartsock v. Spectrum Pharmaceuticals, Inc., et al. The settlement
is pending court approval.
Olutayo Ayeni v. Spectrum Pharmaceuticals, Inc., et al. (Filed
September 21, 2016 in the United States District Court, Central
District of California; Case No. 2:16-cv-07074) (the "Ayeni
Action") and Glen Hartsock v. Spectrum Pharmaceuticals, Inc., et
al. (Filed September 28, 2016 in the United States District Court,
District Court of Nevada Case; No. 2:16-cv-02279-RFB-GWF) (the
"Hartsock Action").
On November 15, 2016, the Ayeni Action was transferred to the
United States District Court for the District of Nevada. The
parties have stipulated to a consolidation of the Ayeni Action with
the Hartsock Action.
These class action lawsuits allege that we and certain of our
executive officers made false or misleading statements and failed
to disclose material facts about our business and the prospects of
approval for the company's New Drug Application to the FDA for
QAPZOLA in violation of Section 10(b) (and Rule 10b-5 promulgated
thereunder) and 20(a) of the Securities Exchange Act of 1934, as
amended.
On July 23, 2019, the company entered into a memorandum of
understanding with these plaintiffs for a collective settlement
that is pending court approval.
The value of this proposed settlement is included within "other
receivables" and "accounts payable and other accrued liabilities"
on the accompanying Condensed Consolidated Balance Sheet as of
September 30, 2019.
No further updates were provided in the Company's SEC report.
Spectrum Pharmaceuticals, Inc. develops and commercializes oncology
and hematology drug products. The company was formerly known as
NeoTherapeutics, Inc. and changed its name to Spectrum
Pharmaceuticals, Inc. in December 2002. Spectrum Pharmaceuticals,
Inc. was founded in 1987 and is headquartered in Henderson,
Nevada.
STURM RUGER: Decision in Primus Group Class Suit under Appeal
-------------------------------------------------------------
Sturm, Ruger & Company, Inc. said in its Form 10-Q Report filed
with the Securities and Exchange Commission on November 7, 2019,
for the quarterly period ended September 30, 2019, that a notice of
appeal has been filed in the class action suit entitled, Primus
Group LLC v. Smith and Wesson, et al., pending in the United States
District Court for the Southern District of Ohio.
The case was filed August 8, 2019.
Plaintiff alleges that the defendants' lawful sale of modern
sporting rifles violates the Racketeer Influenced Corrupt
Organizations Act and seeks a temporary restraining order ("TRO")
and permanent injunction.
On August 20, 2019, the court denied plaintiff's request for a TRO.
On September 3, 2019, defendants filed a motion to dismiss pursuant
to Federal Rule of Civil Procedure 12(b)(6).
On September 16, 2019, plaintiff filed an Amended Complaint. On
October 9, 2019, the court dismissed plaintiff's Amended Complaint,
with prejudice.
Plaintiff filed a Notice of Appeal on October 15, 2019.
Sturm, Ruger & Company, Inc. designs, manufactures, and sells
firearms under the Ruger name and trademark in the United States.
It operates in two segments, Firearms and Castings. The Company
was founded in 1949 and is headquartered in Southport,
Connecticut.
SUDLER AND COMPANY: 7th Cir. Affirms Horist Suit Dismissal
----------------------------------------------------------
The United States Court of Appeals, Seventh Circuit issued an
Opinion affirming the District Court's judgment granting
Defendant's Motion to Dismiss the case captioned KEITH HORIST,
JOSHUA EYMAN, and LORI EYMAN, Plaintiffs-Appellants, v. SUDLER AND
COMPANY D/B/A SUDLER PROPERTY MANAGEMENT and NEXTLEVEL ASSOCIATION
SOLUTIONS, INC., D/B/A HOMEWISEDOCS.COM, Defendants-Appellees, Case
No. 18-2150.
The Illinois Condominium Property Act requires an elaborate set of
disclosures when a condominium unit is resold. The owner must give
the prospective buyer a copy of the condominium declaration and
bylaws, the condominium association's rules, and an array of other
documents bearing on the current financial status of the property.
The association's board must furnish the required documents within
30 days of the owner's written request, and it may charge a
reasonable fee for doing so. Another provision of the Act allows
the association to retain a person or firm to manage the
condominium property.
This lawsuit is a proposed class action against a Chicago
property-management firm and its third-party vendor, an online
service that assembles a downloadable electronic version of the
required disclosure documents, giving unit owners quick and easy
access to the material needed to complete a resale transaction. The
vendor charges a fee for this service.
The plaintiffs are condominium owners who purchased their
disclosure documents from the online vendor and now complain that
the fee is excessive in violation of the Condominium Act. They also
bring claims under the Illinois consumer-fraud statute and three
common-law theories: breach of fiduciary duty, unjust enrichment,
and civil conspiracy.
The complaint raises five claims: (1) a violation of the Illinois
Consumer Fraud and Deceptive Business Practices Act (2) a violation
of the Condominium Act (3) aiding and abetting a breach of
fiduciary duty (4) civil conspiracy and (5) unjust enrichment.
HomeWise removed the case to federal court under the Class Action
Fairness Act.
Turning first to the claim under the Condominium Act, the judge
held that section 22.1 provides no private right of action express
or implied for unit sellers. He also ruled that the complaint did
not state a viable claim that the PDF fee amounts to an unfair
trade practice in violation of the consumer-fraud statute. The
judge construed the three common-law claims as requiring an
underlying violation of one of these statutes, so he dismissed them
as well and entered final judgment for the defendants.
The Court reviews a dismissal order de novo, construing the
complaint in the light most favorable to the plaintiffs and
accepting all well-pleaded factual allegations as true. To survive
a motion to dismiss, the allegations in the complaint must
plausibly suggest a right to relief, raising that possibility above
a speculative level.
Condominium Act Claim
The Condominium Act claim rests on allegations that HomeWise's fee
for an electronic copy of the required disclosure documents exceeds
the reasonable fee that condominium associations are permitted to
charge under section 22.1(c).
Illinois courts will recognize an implied right of action only if
(1) the plaintiff is within the class of members the statute was
enacted to benefit (2) the plaintiff's injury is one the statute
was designed to prevent (3) a private right of action is consistent
with the underlying purpose of the statute and (4) inferring a
private right of action is necessary to provide an adequate remedy
for statutory violations
All four factors must be met before a court will recognize an
implied remedy. Not one of them is satisfied here.
Two decisions of the Illinois Appellate Court largely control the
outcome. In Nikolopulos v. Balourdos, the court concluded that
section 22.1 was clearly designed to protect prospective purchasers
of condominium units. 614 N.E.2d 412, 416 (Ill. App. Ct. 1993).
More specifically, the court held that the statute's purpose is to
prevent prospective purchasers from buying a unit without being
fully informed and satisfied with the financial stability of the
condominium as well as the management, rules and regulations which
affect the unit.
The court also determined that implying a right of action for
condominium purchasers is consistent with assuring that a
prospective purchaser is fully informed and satisfied before he
buys a condominium unit. On this reasoning, the court recognized an
implied right of action for prospective condominium purchasers to
terminate a sales contract within a reasonable time after being
furnished information revealing previously undisclosed material
expenses. That is, the court authorized a condominium purchaser who
is injured by a seller's violation of the section 22.1 disclosure
duty to sue for return of his earnest money plus interest.
By its terms, the implied remedy recognized in Nikolopulos covered
condominium purchasers who discover a seller's section 22.1
violation before closing. In D'Attomo v. Baumbeck, 36 N.E.3d 892,
905-07 (Ill. App. Ct. 2015), the court extended that holding and
recognized an implied right of action for purchasers who discover
the violation after closing.
The court reiterated the two foundational holdings from
Nikolopulos: (1) the statute was designed to protect condominium
purchasers and (2) an implied remedy for purchasers aggrieved by a
seller's violation of the statute is consistent with ensuring that
a prospective purchaser is fully informed and satisfied with
matters affecting the condominium unit.
The unmistakable takeaway from these two decisions is that section
22.1 is designed to protect the interests of condominium
purchasers, not condominium sellers. That's enough to defeat the
plaintiffs' argument for an implied right of action. As
owner/sellers they are not within the class of persons the statute
was designed to protect, nor have they suffered an injury that the
statute was designed to prevent. And implying a remedy for
condominium sellers is neither consistent with nor necessary to
effectuate the statute's purpose.
The plaintiffs insist that the reasoning of Nikolopulos and
D'Attamo is limited to section 22.1(a), which establishes the unit
seller's disclosure obligation to the buyer. The claim here, in
contrast, rests on subsection (c), which allows condominium
associations to charge a reasonable fee for providing copies of the
disclosure documents to unit sellers. That the fee must be
reasonable shows that unit sellers are within the class of persons
the statute was designed to protect. Or so the argument goes.
The Court is not persuaded.
First, neither Nikolopulos nor D'Attomo distinguishes between
subsection (a) and subsection (c). Rather, they discuss only the
disclosure requirements imposed by Section 22.1. Moreover, as a
general rule of interpretation, Illinois courts read statutes as a
whole rather than focusing on isolated subsections.
Given the manifest statutory purpose of transparency for
prospective condominium buyers, the Court cannot conclude that the
statute was designed to prevent injury to unit sellers. To the
contrary, the statute is plainly designed to protect condominium
purchasers against fraud (of the concealment variety) by
condominium sellers. Together subsections (b) and (c) implement the
disclosure duty in subsection (a) and thus work toward that end.
They are not independent entitlements for the benefit of
condominium associations and unit sellers.
The Court therefore holds that section 22.1 does not confer an
implied right of action on condominium owners. The judge properly
dismissed the Condominium Act claim.
Consumer Fraud Act Claim
Next up is the claim under the Illinois Consumer Fraud and
Deceptive Business Practices Act. The Consumer Fraud Act protects
consumers against fraud, unfair methods of competition, and other
unfair and deceptive business practices.
To prevail on a claim under the Act, a plaintiff must plead and
prove that the defendant committed a deceptive or unfair act with
the intent that others rely on the deception, that the act occurred
in the course of trade or commerce, and that it caused actual
damages.
No deception is alleged here. The plaintiffs argue instead that the
PDF fee is unfair. A trade practice may be deemed unfair if it (1)
offends public policy (2) is immoral, unethical, oppressive or
unscrupulous or (3) causes substantial injury to consumers.
This claim fails for several reasons. First, it appears to rest
almost entirely on the alleged violation of section 22.1. That is,
the plaintiffs allege that Sudler and HomeWise violated the
Condominium Act and thereby violated Illinois public policy. As the
Court explained, however, it's the condominium association's duty
to furnish the required disclosure documents to unit owners on
request; as a corollary, it may charge a reasonable fee for doing
so. Section 605/22.1(b), (c).
And although the association may retain a professional management
firm to handle the day-to-day operation of the property, it cannot
outsource its statutory duties to the property-management company.
Thus stripped of its Condominium Act premise, the Consumer Fraud
Act claim rests on nothing more than a generic allegation that
HomeWise charged too much for a PDF of the disclosure documents.
But the Illinois courts have held that charging an unconscionably
high price generally is insufficient to establish a claim for
unfairness.
The judge correctly dismissed this claim.
Additional Claims
The remaining claim is for breach of fiduciary duty. This claim is
derivative, not direct. That is, the plaintiffs allege that Sudler
and HomeWise aided and abetted a breach of fiduciary duty by the
condominium associations. It's true that the officers and board
members of a condominium association owe a fiduciary duty to unit
owners. Part of that duty includes compliance with the requirements
of the Condominium Act.
But the complaint does not allege facts that, if true, could
support an inference that the officers or board members of either
condominium association committed a fiduciary breach. There is no
allegation, for example, that an officer or board member refused to
produce the disclosure documents for the plaintiffs upon request or
charged them an excessive fee to make copies.
Against this backdrop, the 7th Circuit affirms the District Court's
judgment, and holds that the relevant provision of the Condominium
Act does not provide a private right of action, and it sees no
basis in Illinois law to imply one for condominium owners. The
statutory consumer-fraud claim is likewise defective; the Illinois
courts have held that charging too much for goods or services is
not, standing alone, an unfair practice under the statute. The
common-law claims also fail. The complaint does not plead an
actionable breach of fiduciary duty, and unjust enrichment and
conspiracy are not independent causes of action under Illinois
law.
A full-text copy of the 7th Circuit's October 21, 2019 Opinion is
available at https://tinyurl.com/yxe9kuko from Leagle.com.
Charles R. Watkins, for Plaintiff-Appellant.
J. Philip Calabrese, Porter Wright Morris & Arthur LLP, 950 Main
Avenue, Suite 500, Cleveland, OH 44113, for Amicus Curiae.
Edward P. Gibbons - egibbons@walkerwilcox.com - for
Defendant-Appellee.
David J. Fish , Steiner & Fish P.C., 130 Water Street, Brooklyn,
NY, 11201, for Plaintiff-Appellant.
Philip M. Oliss- philip.oliss@ squiresanders.com - for
Defendant-Appellee.
Arthur J. McColgan , One North Franklin Street Suite 3200 Chicago,
IL 60606 , for Defendant-Appellee.
Stephen Sotelo, 200 E 5th Ave #123, Naperville, IL 60563, for
Plaintiff-Appellant.
Eleanor Hagan - eleanor.hagan@squirepb.com - for
Defendant-Appellee.
Scott Taylor Stirling , 2000 Courthouse Plaza, North East, Dayton,
OH 45401 for Defendant-Appellee.
Lauren Kuley - lauren.kuley@squirepb.com - for Defendant-Appellee.
SUNPATH LTD: Landy Sues Over Unsolicited Autodialed Phone Calls
---------------------------------------------------------------
Brennan Landy and Candy Workman, individually and on behalf of all
others similarly situated v. SUNPATH LTD., a Massachusetts
corporation, Case No. 1:19-cv-12562 (D. Mass., Dec. 20, 2019), is
brought under the Telephone Consumer Protection Act to stop the
Defendant's practice of placing calls to consumers, who are
registered on the National Do Not Call Registry and to obtain
redress for all persons similarly injured by the Defendant's
conduct.
Unfortunately for consumers, SunPath casts its marketing net too
wide, the Plaintiffs say. That is, in an attempt to promote its
business and to generate leads for its financial products, the
Defendant conducted (and continues to conduct) a wide scale
telemarketing campaign that repeatedly makes unsolicited autodialed
and prerecorded phone calls to consumers' telephones, including
cellular telephones, without prior express consent to make these
calls. Indeed, while not at issue here, SunPath places these calls
to telephones using an automatic telephone dialing system (ATDS)
without consumers' prior written express consent in violation of
the TCPA, says the complaint.
The Plaintiffs are natural persons residing the State of
Pennsylvania and the State of West Virginia.
SunPath is a company that markets and administers vehicle service
contracts to consumers across the country.[BN]
The Plaintiffs are represented by:
J. Steven Foley, Esq.
LAW OFFICE OF J. STEVEN FOLEY
100 Pleasant Street, #100
Worcester, MA 01609
Phone: 508-754-1042
Facsimile: 508-739-4051
- and -
Steven L. Woodrow, Esq.
Patrick H. Peluso, Esq.
Stephen A. Klein, Esq.
WOODROW & PELUSO, LLC
3900 East Mexico Avenue, Suite 300
Denver, CO 80210
Phone: (720) 213-0675
Facsimile: (303) 927-0809
Email: swoodrow@woodrowpeluso.com
ppeluso@woodrowpeluso.com
sklein@woodrowpeluso.com
SYCAMORE LEE: Fails to Pay All Wages Under FLSA/NYLL, Tonery Says
-----------------------------------------------------------------
Nicholas Tonery, on behalf of himself and all other persons
similarly situated v. Sycamore Lee Corp. d/b/a Sycamore and Kathie
Jung Lee, Case No. 1:19-cv-07204 (E.D.N.Y., Dec. 23, 2019), alleges
that pursuant to the Fair Labor Standards Act and the New York
Labor Law, the Plaintiff and the class are entitled to:
(i) compensation for wages paid at less than the statutory
minimum wage;
(ii) compensation for the Defendants' violations of the
"spread of hours" requirements of NYLL;
(iii) compensation for the Defendants' failure to pay all
wages owed; and
(iv) liquidated damages pursuant to the FLSA and the NYLL.
The Defendants did not provide a time clock, sign in sheet, or any
other method for employees to track their time worked, Mr. Tonery
contends. He was paid $7.50 per hour in 2017, and $8.65 per hour in
2018, for the hours for which he was paid. Although he worked
shifts of between 7 and 9 hours, Mr. Tonery says he was regularly
paid for just 3.5 hours per shift.
As a result, Mr. Tonery's effective rate of pay was always below
the statutory federal and state minimum wages in effect at relevant
times, according to the complaint. The Defendants willfully
violated Mr. Tonery's rights by failing to pay him compensation in
excess of the statutory minimum wage in violation of the FLSA and
the NYLL, says the complaint.
The Plaintiff was employed by the Defendants as a bartender from
September 2017 through July 2018.
The Defendants owned and operated a bar in Brooklyn.[BN]
The Plaintiff is represented by:
David Stein, Esq.
SAMUEL & STEIN
38 West 32nd Street, Suite 1110
New York, NY 10001
Phone: (212) 563-9884
Email: dstein@samuelandstein.com
TEVA PHARMA: Awaits Pre-Trial Schedule in Grodko-Baker Suit
-----------------------------------------------------------
Teva Pharmaceutical Industries Limited said in its Form 10-Q Report
filed with the Securities and Exchange Commission on November 7,
2019, for the quarterly period ended September 30, 2019, that the
company is awaiting the court's pre trial schedule in the
Grodko-Baker Consolidated Class Suit.
On August 21 and 30, 2017, Elliot Grodko and Barry Baker filed
putative securities class actions in the U.S. District Court for
the Eastern District of Pennsylvania purportedly on behalf of
purchasers of Teva's securities between November 15, 2016 and
August 2, 2017 seeking unspecified damages, legal fees, interest,
and costs.
The complaints allege that Teva and certain of its current and
former officers violated the federal securities laws and Israeli
securities laws by making false and misleading statements in
connection with Teva's acquisition and integration of Actavis
Generics.
On November 1, 2017, the court consolidated the Baker and Grodko
cases.
On April 10, 2018, the court granted Teva's motion to transfer the
consolidated action to the District of Connecticut where the
Ontario Teachers Securities Litigation is currently pending.
Following the September 25, 2019 decision on the motions to dismiss
in the Ontario Teachers Securities Litigation, Teva is awaiting the
court's pre-trial schedule for this case.
Teva Pharmaceutical Industries Limited, a pharmaceutical company,
develops, manufactures, markets, and distributes generic medicines
and a portfolio of specialty medicines worldwide. It operates
through two segments, Generic Medicines and Specialty Medicines.
Teva Pharmaceutical Industries Limited was founded in 1901 and is
headquartered in Petach Tikva, Israel.
TEVA PHARMA: Court Narrows Claims in Ontario Teachers Suit
----------------------------------------------------------
Teva Pharmaceutical Industries Limited said in its Form 10-Q Report
filed with the Securities and Exchange Commission on November 7,
2019, for the quarterly period ended September 30, 2019, that the
court has denied in substantial part and granted in part the
defendants' motions to dismiss filed in Ontario Teachers Securities
Litigation.
On November 6, 2016 and December 27, 2016, two putative securities
class actions were filed in the U.S. District Court for the Central
District of California against Teva and certain of its current and
former officers and directors.
After those two lawsuits were consolidated and transferred to the
U.S. District Court for the District of Connecticut, the court
appointed the Ontario Teachers' Pension Plan Board as lead
plaintiff.
The lead plaintiff then filed a consolidated amended complaint. On
April 3, 2018, the court dismissed the case without prejudice. The
lead plaintiff filed a second amended complaint on June 22, 2018,
purportedly on behalf of purchasers of Teva's securities between
February 6, 2014 and August 3, 2017.
The second complaint asserts that Teva and certain of its current
and former officers and directors violated federal securities laws
in connection with Teva's alleged failure to disclose pricing
strategies for various drugs in its generic drug portfolio and by
making allegedly false or misleading statements in certain offering
materials issued during the class period.
The second complaint seeks unspecified damages, legal fees,
interest, and costs. Teva and the current and former officer and
director defendants filed motions to dismiss the second complaint
on September 14, 2018.
On September 25, 2019, the court denied in substantial part and
granted in part the defendants' motions to dismiss. The court has
yet to establish a pre-trial schedule.
Teva Pharmaceutical Industries Limited, a pharmaceutical company,
develops, manufactures, markets, and distributes generic medicines
and a portfolio of specialty medicines worldwide. It operates
through two segments, Generic Medicines and Specialty Medicines.
Teva Pharmaceutical Industries Limited was founded in 1901 and is
headquartered in Petach Tikva, Israel.
TEVA PHARMA: Intuniv(R) Direct Purchasers' Class Cert. Bid Granted
------------------------------------------------------------------
Teva Pharmaceutical Industries Limited said in its Form 10-Q Report
filed with the Securities and Exchange Commission on November 7,
2019, for the quarterly period ended September 30, 2019, that the
court in the class action suit related to Intuniv(R) has granted
the direct purchasers' motion for class certification
Since November 2016, several putative indirect purchaser and direct
purchaser class actions were filed in federal courts in Wisconsin,
Massachusetts and Florida against Shire U.S., Inc. and Shire LLC
(collectively, "Shire"), Actavis and Teva, alleging that Shire's
2013 patent litigation settlement with Actavis related to the ADHD
drug Intuniv(R) (guanfacine) violated various state consumer
protection and antitrust laws.
All cases are now in Massachusetts federal court.
In August 2019, the court denied the indirect purchasers' motion
for class certification, and they filed a petition for immediate
appellate review, which remains pending.
The court granted the direct purchasers' motion for class
certification in September 2019.
Annual sales of Intuniv(R) were approximately $335 million at the
time of the settlement and approximately $327 million at the time
Actavis launched its generic version of Intuniv(R) in 2014.
Teva Pharmaceutical Industries Limited, a pharmaceutical company,
develops, manufactures, markets, and distributes generic medicines
and a portfolio of specialty medicines worldwide. It operates
through two segments, Generic Medicines and Specialty Medicines.
Teva Pharmaceutical Industries Limited was founded in 1901 and is
headquartered in Petach Tikva, Israel.
TEVA PHARMA: Settlement Reached in Lidoderm(R)-Related Suit
-----------------------------------------------------------
Teva Pharmaceutical Industries Limited said in its Form 10-Q Report
filed with the Securities and Exchange Commission on November 7,
2019, for the quarterly period ended September 30, 2019, that the
company and the State of California have reached a settlement
agreement in a class action suit related to sales of Lidoderm(R).
In November 2013, a putative class action was filed in Pennsylvania
federal court against Actavis, Inc. and certain of its affiliates,
alleging that Watson's 2012 patent lawsuit settlement with Endo
Pharmaceuticals Inc. relating to Lidoderm(R) (lidocaine transdermal
patches) violated the antitrust laws. Additional lawsuits
containing similar allegations followed on behalf of other classes
of putative direct purchaser and end-payer plaintiffs, as well as
retailers acting in their individual capacities, and those cases
were consolidated as a multidistrict litigation in federal court in
California.
On February 21, 2017, the court granted both the indirect purchaser
plaintiffs' and the direct purchaser plaintiffs' motions for class
certification.
Teva settled the multidistrict litigation with the various
plaintiff groups in the first quarter of 2018 and a provision was
included in the financial statements.
The FTC also filed suit to challenge the Lidoderm(R) settlement,
initially bringing antitrust claims against Watson, Endo and
Allergan in Pennsylvania federal court in March 2016. The FTC later
voluntarily dismissed those claims and refiled them (along with a
stipulated order for permanent injunction to settle its claims
against Endo) in the same California federal court in which the
private multidistrict litigation referenced above was pending.
On February 3, 2017, the State of California filed its own
complaint against Allergan and Watson, and that complaint was also
assigned to the California federal court presiding over the
multidistrict litigation.
On February 22, 2019, the FTC dismissed its claims against Actavis
and Allergan, in exchange for Teva's agreement to amend the
Modafinil Consent Decree. On July 23, 2019 Teva and the State of
California also reached a settlement agreement.
On September 16, 2019, end-payers Blue Cross Blue Shield of
Michigan and Blue Care Network of Michigan filed their own lawsuit
against Watson, and other defendants, in Michigan state court. That
lawsuit was subsequently removed to federal court and remains
pending.
Teva Pharmaceutical Industries Limited, a pharmaceutical company,
develops, manufactures, markets, and distributes generic medicines
and a portfolio of specialty medicines worldwide. It operates
through two segments, Generic Medicines and Specialty Medicines.
Teva Pharmaceutical Industries Limited was founded in 1901 and is
headquartered in Petach Tikva, Israel.
TEVA PHARMA: Settlement Reached in PROVIGIL(R) Related Suit
-----------------------------------------------------------
Teva Pharmaceutical Industries Limited said in its Form 10-Q Report
filed with the Securities and Exchange Commission on November 7,
2019, for the quarterly period ended September 30, 2019, that a
resolution has been reached in the class action suit related to the
settlement agreements entered into between Cephalon, Inc., now a
Teva subsidiary, and various generic pharmaceutical companies in
late 2005 and early 2006 to resolve patent litigation involving
certain finished modafinil products marketed as PROVIGIL(R).
In April 2006, certain subsidiaries of Teva were named in a class
action lawsuit filed in the U.S. District Court for the Eastern
District of Pennsylvania. The case alleges that the settlement
agreements entered into between Cephalon, Inc., now a Teva
subsidiary ("Cephalon"), and various generic pharmaceutical
companies in late 2005 and early 2006 to resolve patent litigation
involving certain finished modafinil products (marketed as
PROVIGIL(R)) were unlawful because they had the effect of excluding
generic competition. The case also alleges that Cephalon improperly
asserted its PROVIGIL patent against the generic pharmaceutical
companies.
The first lawsuit was filed by a purported class of direct
purchasers.
Similar complaints were also filed by a purported class of indirect
purchasers, certain chain pharmacies and by Apotex, Inc.
(collectively, these cases are referred to as the "Philadelphia
Modafinil Action").
Separately, Apotex challenged Cephalon’s PROVIGIL patent and, in
October 2011, the court found the patent to be invalid and
unenforceable based on inequitable conduct. Teva has either settled
or reached agreements in principle to settle with all of the
plaintiffs in the Philadelphia Modafinil Action.
Additionally, Cephalon and Teva reached a settlement with 48 state
attorneys general, which was approved by the court on November 7,
2016, and on July 23, 2019, reached a settlement with the State of
California, which is pending final court approval, and is fully
covered by the settlement fund.
Teva Pharmaceutical Industries Limited, a pharmaceutical company,
develops, manufactures, markets, and distributes generic medicines
and a portfolio of specialty medicines worldwide. It operates
through two segments, Generic Medicines and Specialty Medicines.
Teva Pharmaceutical Industries Limited was founded in 1901 and is
headquartered in Petach Tikva, Israel.
TRUE SECURITY: Smith Seeks to Recoup Damages & Backpay Under FLSA
-----------------------------------------------------------------
Jerry Smith, individually and on behalf of all those similarly
situated v. True Security, Inc., Case No. 1:19-cv-03616 (D. Colo.,
Dec. 20, 2019), is seeking to recover damages and backpay to
compensate all current and former employees of the Defendant for
its wage violations under the federal Fair Labor Standards Act, the
Colorado Wage Claim Act, and the Colorado Minimum Wage Act, as
implemented by the Colorado Minimum Wage Order.
Although the Plaintiff was required to work overtime hours, and did
so frequently, the Plaintiff was not compensated at the mandated
time and one-half rate for all these overtime hours, the Plaintiff
alleges. Given the nature of the Plaintiff's work, no overtime
exemption applies to the Plaintiff. The Defendant violated these
laws by failing to compensate employees at "time and one-half"
their regular rate of pay for all overtime hours worked, says the
complaint.
The Plaintiff worked for the Defendant as a security guard
providing security services to commercial firms in Colorado.
The Defendant is a service company providing security services to
various commercial businesses in Colorado.[BN]
The Plaintiff is represented by:
Chris R. Miltenberger, Esq.
THE LAW OFFICE OF CHRIS R. MILTENBERGER, PLLC
1360 N. White Chapel, Suite 200
Southlake, TX 76092-4322
Office: 817-416-5060
Fax: 817-416-5062
Email: chris@crmlawpractice.com
TRUMAN ROAD: Court Denies Dismissal of Smith TCPA Lawsuit
---------------------------------------------------------
Judge Nanette Laughrey of the U.S. District Court for the Western
District of Missouri denied the Defendants' bid to dismiss the
second amended complaint of ZACHARY SMITH and BRIAN KAGARICE,
individually and on behalf of all others similarly situated,
Plaintiffs, v. TRUMAN ROAD DEVELOPMENT, LLC d/b/a NO OTHER PUB, THE
CORDISH COMPANIES, INC., ENTERTAINMENT CONSULTING INTERNATIONAL,
LLC, Defendants, Case No. 4:18-cv-00670-NKL, (W.D. Mo.).
The Complaint alleges that Plaintiffs and putative class members
received text messages and phone calls that they had not consented
to from Defendants advertising No Other Pub's products and
services. Plaintiffs allege violations of the Telephone Consumer
Protection Act (TCPA).
Defendants Truman Road Development, LLC, d/b/a No Other Pub,
Entertainment Consulting International, LLC, and the Cordish
Companies, Inc., assert Plaintiffs' claims should be dismissed
pursuant to Federal Rule of Civil Procedure 12(b)(2) and (6) for
lack of personal jurisdiction and failure to state a claim.
Defendants Cordish and ECI move to dismiss the Second Amended
Complaint, arguing the Court lacks personal jurisdiction over them
as non-resident entities.
On review, the Court finds that Plaintiffs have made a prima facie
showing that both ECI and Cordish have requisite contacts to
warrant specific personal jurisdiction.
Defendants' assertion that because ECI is incorporated in Maryland,
none of their actions took place in Missouri is unavailing, the
Court opines. ECI's headquarters location does not prevent them
from acting in other locations, and even if it did, the Supreme
Court has consistently rejected the notion that an absence of
physical contacts can defeat personal jurisdiction there.
The Court further rules that Defendants' motion to dismiss on the
ground that the government-debt exception is unconstitutional and
unseverable is denied.
A full-text copy of the District Court's October 31, 2019 Order is
available at https://tinyurl.com/yygr56m8 from Leagle.com
Zachary Smith, individually and on behalf of others similarly
situated, Plaintiff, represented by Schuyler R. Ufkes -
sufkes@edelson.com - pro hac vice, William Charles Kenney , Bill
Kenney Law Firm, LLC, 1101 Walnut Street, Suite 102, Kansas City,
MO, 64106, Benjamin H. Richman - brichman@edelson.com - Edelson,
pro hac vice, Brandt Silver-Korn - bsilverkorn@edelson.com -
Edelson, pro hac vice, Eve-Lynn J. Rapp - erapp@edelson.com -
Edelson PC, pro hac vice, Michael Ovca -movca@edelson.com -
Edelson, pro hac vice & Sydney Janzen - sjanzen@edelson.com -
Edelson, pro hac vice.
Truman Road Development, LLC, doing business as No Other Pub
formerly known as Kansas City Sporting and Social Club, LLC,
Defendant, represented by, David I. Zalman –
dzalman@kelleydrye.com - Kelley Drye & Warren LLP, pro hac vice,
Glenn T. Graham – ggraham@kelleydrye.com - Kelley Drye & Warren
LLP, pro hac vice, Lauri Anne Mazzuchetti -
lmazzuchetti@kelleydrye.com - Kelley Drye & Warren LLP, pro hac
vice, W. James Foland – jfoland@fwpclaw.com - Foland Wickens
Roper Hofer & Crawford, Whitney M. Smith – wsmith@kelleydrye.com
- Kelley Drye & Warren LLP, pro hac vice & Jacqueline M. Sexton
-jsexton@fwpclaw.com - Foland Wickens Roper Hofer & Crawford.
The Cordish Companies, Inc. & Entertainment Consulting
International, LLC, Defendants, represented by Jacqueline M. Sexton
, Foland Wickens Roper Hofer & Crawford & W. James Foland , Foland
Wickens Roper Hofer & Crawford.
IT Nachos, LLC, Miscellaneous, represented by Patrick W. Skilliter
- pskilliter@mslawgroup.com - Mac Murray & Shuster LLP, pro hac
vice & Nathan R. Taylor , Taylor, Stafford, Clithero, & Harris,
LLP, Ridgeview Business Center, 3315 East Ridgeview Street, Suite
1000, Springfield, MO 65804
United States of America, Intervenor, represented by Joshua Abbuhl
, United States Department of Justice.
UNITED STATES: Court Dismisses Nurses' Suit Seeking Back Wages
--------------------------------------------------------------
The United States Court of Federal Claims issued a Memorandum
Opinion granting Department of Veterans Affairs (VA)'s Motion to
Dismiss the case captioned VICTORIA SZUGGAR and KIANA BARTON, on
behalf of themselves and all others similarly situated, Plaintiffs,
v. UNITED STATES, Defendant, Case No. 19-440C.
Plaintiffs Victoria Szuggar and Kiana Barton (Nurses) acting for
themselves and on behalf of other similarly situated part-time
registered nurses employed by the Veterans Health Administration of
the Department of Veterans Affairs (VA) filed this putative class
action against the United States acting through and on behalf of
the VA. The Nurses seek back pay, alleging that the statute
authorizing the VA to appoint them as temporary part-time
registered nurses requires the VA, after their first two years of
service, to treat and compensate them as if they had been appointed
to permanent positions.
The VA has moved to dismiss the Nurses' Amended Complaint under
Rule 12(b)(1) of the Rules of the Court of Federal Claims (RCFC)
for lack of subject matter jurisdiction and under RCFC 12(b)(6) for
failure to state a claim upon which relief can be granted.
The VA argues that this Court lacks subject matter jurisdiction
because neither 38 U.S.C. Section 7405(g) nor Section 7403(a) is a
money-mandating statute on which a plaintiff can base a claim in
this court. The VA further argues that the only statutes cited in
the Amended Complaint would, even if violated, not mandate the
payment of money damages because they concern appointments to
certain positions at the VA, and do not contemplate pay or create a
claim for money damages.
The Nurses respond by identifying statutes and regulations related
to eligibility for annual raises and benefits that they argue
should be read together with the VA-appointment statutes in Title
38 to create a fair implication that the VA-appointment statutes
are money-mandating.
LEGAL STANDARD
Standard of Review
Subject Matter Jurisdiction
Plaintiffs must (1) establish a court's power to hear their case,
subject matter jurisdiction (2) establish their own right to relief
from particular conduct, a cause of action and (3) allege facts
that satisfy the elements of their cause of action.
Money-Mandating Statutes
To meet the requirement of suing under a money-mandating statute or
regulation, plaintiffs must present a claim that may allege a
violation of a statute that expressly requires payment. A claim may
also meet the legal threshold even if it adds links to the
interpretive chain between the provision violated and the provision
requiring payment. For example, a statute authorizing a certain
payment, but leaving the conditions for payment to the regulator's
discretion, may be rendered mandatory and nondiscretionary when
read together with its implementing regulations that define the
conditions for the payment.
Back-Pay Claims
The Supreme Court's decision on jurisdiction in Testan, Testan, 424
U.S. at 402-03, rejected a specific kind of back-pay claim federal
employees' claims that the treatment of their actual duties under a
classification statute required their appointment to a higher
pay-grade and thus entitled them to back pay.
Thus, in the context of back-pay claims, Testan erected two
hurdles. First, consistent with the principle that employees are
entitled to the benefits of their employment by statutorily
authorized appointment, not by contract, Testan confirmed that
federal employees are only entitled to pay for the position to
which they were appointed, and that nothing in the Back Pay Act
changes this principle.
Second, Testan held that, even under the Back Pay Act, a back-pay
claim in this Court requires a source of law that mandates payment
of damages or otherwise creates a cause of action for the law's
violation. Some provisions of Title 5 have qualified as
money-mandating but Testan's rejection of a general right of action
in this Court for federal employment-law violations still stands.
VA Temporary-Nurse Appointment Statute
For this Court to have Tucker Act jurisdiction over the Nurses'
claim that the VA violated Section 7405(g) by failing to recognize
their permanent status after two years, Section 7405(g) must
mandate money either expressly or by reasonable implication. The
statute must give to the Nurses a right to payment, to the award of
benefits, or to both if the Nurses are to be able to maintain an
action in this Court.
Section 7405(g) is reasonably amenable to the reading that it
requires the VA to treat temporary part-time nurses as permanent
part-time nurses after two years. It is not reasonably amenable,
however, to the reading that treating such nurses as permanent
mandates money or the award of benefits.
Other Statutes and Regulations
The Nurses' theory that a broader statutory and regulatory scheme,
including Section 7405(g) and other pay and benefits provisions)
implies a money-mandate reflects an effort to meet the elements of
Mitchell II, but it lacks the logic behind the holding in that
case. The statutes and regulations at issue in Mitchell II were
sufficient to create a trust relationship, the trust relationship
was sufficient to create fiduciary duties to the allottees, and the
fiduciary duties were sufficient to mandate compensation for the
United States' sale of trust assets for less than market value.
Here, by framing their cause of action around a violation of
Section 7405(g), the Nurses fail to establish an inferential chain
between the statute violated and the money mandated because a
part-time nurse's conversion to permanent status is not necessarily
a condition sufficient for better pay and the award of benefits.
The language of the Amended Complaint describes types of pay and
benefits, but not specifically enough to identify statutes or
regulations mandating added pay and the award of additional
benefits that permanent part-time nurses receive and temporary
nurses do not.
The plaintiffs cite statutes and regulations that they argue
exclude temporary part-time nurses from particular pay and
benefits, but they stop short of pleading how those laws or other
statutes mandate the award of benefits for part-time nurses on the
basis of their being considered permanent as opposed to temporary
pursuant to Section 7405(g). The Nurses information and belief as
to the enhanced pay and increased benefits permanent nurses receive
that temporary nurses do not suggest a correlation between
permanent status and the receipt of more pay and benefits, but this
factual correlation is not a legal mandate by statute or
regulation.
The Amended Complaint fails to identify any such statute or
regulation.
The Amended Complaint's deficiency is in the logic used to
demonstrate a money-mandate, either express or implied, not a mere
lack of citations or lack of specificity in its factual recitation.
To be clear, the court does not find that an individual in the
Nurses position is not, pursuant to any statute, entitled to
compensation. The court does hold, however, that the source of any
right to compensation, and thus the foundation of this court's
jurisdiction, cannot be 38 U.S.C. Section 7405(g), as alleged by
plaintiffs in this case.
The Nurses have failed to identify a money-mandating provision
creating a cause of action sufficient for this Court to assert
jurisdiction under the Tucker Act. Accordingly, this Court lacks
subject matter jurisdiction to hear this case.
The court will enter a separate order GRANTING the defendant's
motion to dismiss and DISMISSING the case without prejudice under
RCFC 12(b)(1).
A full-text copy of the Court of Federal Claims' October 28, 2019
Memorandum Opinion is available at https://tinyurl.com/y2n9uapz
from Leagle.com.
VICTORIA SZUGGAR & KIANA BARTON, on behalf of themselves and all
others similarly situated, Plaintiffs, represented by Michele Renee
Fisher - fisher@nka.com - Nichols Kaster, PLLP.
USA, Defendant, represented by Kara Marie Westercamp, U.S.
Department of Justice - Civil Division.
URBAN COMPASS: Mahlberg Sues Over Blind-Inaccessible Web Site
-------------------------------------------------------------
Raymond T. Mahlberg, individually and on behalf of all others
persons similarly situated v. URBAN COMPASS INC., Case No.
1:19-cv-25258-JLK (S.D. Fla., Dec. 23, 2019), is brought to secure
redress against the Defendant for its failure to design, construct,
maintain, and operate its website 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 website, and
therefore denial of its products and services offered thereby and
in conjunction with its physical locations, is a violation of the
Plaintiff's rights under the Americans with Disabilities Act.
Because the Defendant's Web site, https://www.compass.com/, is not
equally accessible to blind and visually-impaired individuals, it
violates the ADA, says the complaint.
The Plaintiff seeks a permanent injunction to cause a change in the
Defendant's corporate policies, practices, and procedures so that
the Defendant's website will become and remain accessible to blind
and visually-impaired consumers.
The Plaintiff is a visually-impaired and legally blind person who
requires screen-reading software to read website content using his
computer.
The Defendant is the owner and operator of a chain of Real Estate
brokerage offices under the brand name COMPASS and there are
approximately more than 150 sales offices in the USA, six of them
in South Florida.[BN]
The Plaintiff is represented by:
Acacia Barros, Esq.
ACACIA BARROS, P.A.
11120 N. Kendall Dr., Suite 201
Miami, FL 33176
Phone: 305-639-8381
Email: ab@barroslawfirm.com
VOYA RETIREMENT: Continues to Defend Goetz Class Action
-------------------------------------------------------
Voya Retirement Insurance and Annuity Company said in its Form 10-Q
Report filed with the Securities and Exchange Commission on
November 7, 2019, for the quarterly period ended September 30,
2019, that the company continues to defend a class action suit
entitled, Goetz v Voya Financial and Voya Retirement Insurance and
Annuity Company
A putative class action, Goetz v Voya Financial and Voya Retirement
Insurance and Annuity Company (USDC District of Delaware, No.
1:17-cv-1289) (filed September 8, 2017) in which plaintiff, a
participant in a 401(k) plan, seeks to represent other participants
in the plan as well as a class of similarly situated plans that
"contract with (Voya) for recordkeeping and other services."
Plaintiff alleges that Voya breached its fiduciary duty to the plan
and other plan participants by charging unreasonable and excessive
recordkeeping fees, and that Voya distributed materially false and
misleading 404a-5 administrative and fund fee disclosures to
conceal its excessive fees.
The Company denies the allegations, which it believes are without
merit, and intends to defend the case vigorously.
No further updates were provided in the Company's SEC report.
Voya Retirement Insurance and Annuity Company, together with its
subsidiaries, operates as a stock life insurance company in the
United States. The company was formerly known as ING Life Insurance
and Annuity Company and changed its name to Voya Retirement
Insurance and Annuity Company in September 2014. The company is
based in Windsor, Connecticut. Voya Retirement Insurance and
Annuity Company operates as a subsidiary of Voya Institutional Plan
Services, LLC.
WAWA INC: Fails to Secure/Safeguard Consumers' PII, Kaufman Says
----------------------------------------------------------------
Ronnie Kaufman, individually and on behalf of all others similarly
situated v. WAWA, INC., Case No. 2:19-cv-06032-JHS (E.D. Pa., Dec.
20, 2019), is brought against the Defendant for its failure to
secure and safeguard consumers' personally identifiable information
which the Defendant collected from various sources in connection
with the operation of its business as a consumers' credit reporting
agency.
The Defendant also failed to provide timely, accurate and adequate
notice to the Plaintiff and other Class Members that their PII had
been stolen and precisely what types of information were stolen,
according to the complaint.
The Defendant has acknowledge that a cybersecurity incident
affecting most of its stores' system throughout the country. The
Defendant has not yet disclosed how many U.S. consumers have been
affected by this massive breach. The PII for the Plaintiff and the
class of consumers she seek to represent was compromised due to the
Defendant's act and omission and their failure to properly protect
the PII.
The Defendant disregarded the rights of the Plaintiff by
intentionally, willfully, recklessly, or negligently failing to
take adequate and reasonable measures to ensure its data systems
were protected, failing to disclose to its customers the material
fact that it did not have adequate computer systems and/or payment
processors servers and security practices to safeguard PII, failing
to take available to steps to prevent and stop the breach from ever
happening, and failing to monitor and detect the breach on a timely
basis, says the complaint.
The Plaintiff is a citizens and resident of the state of Florida
and is a victim of the Data Breach.
Wawa is an American chain of convenience stores and gas stations
located along the east Coast of the United States.[BN]
The Plaintiff is represented by:
Jonathan Shub, Esq.
Kevin Laukaitis, Esq.
KOHN, SWIFT & GRAF, P.C.
1600 Market Street, Suite 2500
Philadelphia, PA 19103
Phone: (215) 238-1700
Email: jshub@kohnswift.com
klaukaitis@kohnswift.com
- and -
Patrick Slyne, Esq.
Aaron Brody, Esq.
Howard T. Longman, Esq.
STULL, STULL & BRODY
6 East 45th Street
New York, NY 10017
Phone: (212) 687-7230
Facsimile; (212) 490-2022
Email: pkslyne@ssbny.com
abrody@ssbny.com
WAYFAIR LLC: Balaz Sues over Biometric Data Collection
------------------------------------------------------
PAVEL BALAZ, individually and on behalf of all others similarly
situated, Plaintiff v. WAYFAIR LLC, Defendants, Case no.
2019CH13875 (Ill. Cir., Cook Cty., Dec. 2, 2019) alleges violation
of the Biometric Information Privacy Act.
The Plaintiff alleges in the complaint that the Defendants
disregarded its employees' statutorily protected privacy rights and
unlawfully collects, stores, and uses their biometric data in
violation of the Biometric Information Privacy Act. Prior to taking
the Plaintiff's biometric, the Defendants did not inform the
Plaintiff in writing that his biometrics were being collected,
stored, used, or disseminated, or publish any policy specifically
about the collection, retention, use, deletion, or dissemination of
biometrics.
Wayfair LLC provides home improvement products online. The Company
offers furniture, home furnishings, rugs, outdoor, bed, bath,
lighting, kitchen, storage, kids, housewares, decor, decorative
accents, and other home goods. Wayfair delivers products for
living, dining, bath, and bed room. Wayfair serves customers
worldwide. [BN]
The Plaintiff is represented by:
David Fish, Esq.
John Kunze, Esq.
Mara Baltabols, Esq.
THE FISH LAW FIRM, P.C.
200 East Fifth Avenue, Suite 123
Naperville, IL 60563
Telephone: (630) 355-7590
Facsimile: (630) 778-0400
E-mail: dfish@fishlawfirm.com
jkunze@fishlawfirm.com
mara@fishlawfirm.com
WELLS FARGO: Miller Seeks to Recover Minimum and Overtime Wages
---------------------------------------------------------------
Teddy Miller, Individually and on Behalf of all Others Similarly
Situated v. WELLS FARGO & COMPANY and WELLS FARGO BANK, N.A., Case
No. 3:19-cv-08327 (N.D. Cal., Dec. 20, 2019), seeks to recover
overtime compensation, minimum wages and other wages, litigation
expenses, expert witness fees, attorneys' fees, costs of court and
other remedies under the provisions of the Fair Labor Standards Act
and the New York Labor Law.
The Plaintiff, who was employed by Wells Fargo as a mortgage loan
officer, was a full-time employee of Wells Fargo and who was
scheduled to work 40 hours per week during the relevant time frame.
He regularly exceeded 40 hours of worktime per week upon the
direction, supervision and knowledge of Wells Fargo.
The Plaintiff and those similarly situated performed work as
mortgage loan officers and were not paid time and one-half for
hours they worked over 40 in a week and minimum wages, he contends.
Wells Fargo knowingly failed to pay overtime to the Plaintiff and
those similarly situated in violation of the FLSA and New York
state law, says the complaint.
Wells Fargo is in the business of providing home mortgage
loans.[BN]
The Plaintiff is represented by:
Rhonda H. Wills, Esq.
WILLS LAW FIRM, PLLC
1776 Yorktown, Suite 570
Houston, TX 77056
Phone: (713) 528-4455
Facsimile: (713) 528-2047
Email: rwills@rwillslawfirm.com
WHIRLPOOL CORP: Court Narrows Claims in Danielkiewicz Class Suit
----------------------------------------------------------------
Judge Stephen J. Murphy, III of the U.S. District Court for the
Eastern District of Michigan granted in part and denied in part the
Defendant's motion to dismiss the amended complaint in THOMAS
DANIELKIEWICZ, et al., Plaintiffs, v. WHIRLPOOL CORPORATION,
Defendant, Case No. 2:18-cv-13599 (E.D. Mich.).
Fifteen Plaintiffs -- Thomas and Katherine Danielkiewicz, Don
Martin, John Curcio, Georgia Stamates, Arlene Powers, Nancy Leonti,
Linda Watts, Claudia Goodman, Ray and Kris Angerman, Paula
Stockbridge, Janice Parker, Tania Jenkins, Terry and Rick Moeller,
Lynn Apgar, and Richard and Gloria Hahn -- from eight states filed
a consolidated class action complaint alleging causes of action
related to Whirlpool's "AquaLift" self-cleaning oven technology.
The claims stem from allegations that Whirlpool ovens failed to
adequately "self-clean" and that Whirlpool's marketing and
advertising misrepresented the effectiveness of the self-cleaning
technology.
The Plaintiffs raised the following claims: (1) Ciolations of the
Magnuson-Moss Warranty Act ("MMWA")-Implied Warranty; (2) Breach of
Contract; (3) Breach of UCC Express Warranty; (4) Breach of UCC
Implied Warranty of Merchantability; (5) Unjust Enrichment; (6)
Violations of the Michigan Consumer Protection Act ("MCPA"); (7)
Violations of the Florida Deceptive and Unfair Trade Practices Act
("FDUTPA"); (8) Violations of the New York General Business Law;
(9) violations of the New York General Business Law; (10)
Violations of the California Consumer Legal Remedies Act ("CLRA");
(11) Violations of the California Unfair Competition Law ("UCL");
(12) Violations of the Missouri Merchandising Practices Act
("MMPA"); (13) Violations of the Minnesota Prevention of Consumer
Fraud Act ("MCFA")-Unlawful Practices; (14) Violations of the
MCFA-False Statement in Advertisement; (15) Violations of the
Minnesota Uniform Deceptive Trade Practices Act ("MDTPA"); (16)
Violations of the Washington Consumer Protection Act ("WCPA"); (17)
Violations of the Georgia Fair Business Practices Act ("GFPBA");
and (18) Violations of the Georgia Uniform Deceptive Trade
Practices Act ("GUDTPA"). The Defendant's partial motion to
dismiss addressed many but not all of the claims.
On Nov. 19, 2018, the Plaintiffs filed a class action complaint
against the Defendant. The case was reassigned to Judge Murphy as
a companion case to an earlier filed class action complaint,
Schechner et al. v. Whirlpool Corporation, 2:16-cv-12409. On Dec.
21, 2018, the Court consolidated Danielkiewicz, et al. v. Whirlpool
Corporation, No. 2:18-cv-13599 with Angerman, et al. v. Whirlpool
Corporation, No. 2:18-cv-13832. On Feb. 18, 2019, the Defendant
filed a motion to dismiss for failure to state a claim.
On March 29, 2019, the Plaintiffs filed an amended, consolidated
class action complaint, and the Court found moot the Defendant's
initial motion to dismiss. On May 13, 2019, Defendant filed a
motion to dismiss the amended complaint.
Judge Murphy granted in part and denied in part the Defendant's
motion to dismiss. Judge Murphy ordered as follows:
(i) Count I - the MMWA implied warranty claims of Plaintiffs
the Danielkiewiczs and Goodman are dismissed without
prejudice;
(ii) Count II - all the Plaintiffs' breach of contract claims
are dismissed with prejudice;
(iii) Count III - the express UCC warranty claims of the
Plaintiffs Powers and Apgar are dismissed without
prejudice, but the Defendant's motion to dismiss Leonti
and Stockbridge's express UCC warranty claims are denied;
(iv) Count IV - the UCC implied warranty claims of the
Plaintiffs the Danielkiewiczs, Powers, Leonti, Stockbridge,
and Stamates are dismissed without prejudice;
(v) Count XV - the MUDTPA claim of Plaintiffs the Moellers is
dismissed without prejudice;
(vi) Count XVII - the Plaintiffs' class claims under the GFBPA
are dismissed without prejudice; and
(vii) Count XVIII - the GUDTPA claim of Plaintiffs Jenkins is
dismissed without prejudice.
Among other things, Judge Murphy found that the Defendant is the
manufacturer of the oven and the AquaLift feature in the oven. And
Stockbridge alleged that she purchased her oven from Albert Lee
Appliance, not from the Defendant. The buyer is Albert Lee
Appliance, and Stockbridge is the downstream purchaser. The
exception applies to Stockbridge, and pre-suit notice was therefore
not required. So Judge Murphy denied the Defendant's motion to
dismiss as to Stockbridge's breach of express and implied UCC
warranty claims for lack of pre-suit notice.
As for Leonti, Judge Murphy found that Leonti falls under the
exception to the notice requirement. So the Judge denied the
Defendant's motion to dismiss as to Leonti's breach of express and
implied UCC warranty claims for lack of pre-suit notice.
Finally, because the Plaintiffs have pleaded insufficient facts to
establish privity of contract between the Defendant and the
Plaintiffs, Judge Murphy dismissed with prejudice the Plaintiffs'
breach of contract claim.
A full-text copy of Judge Murphy's Nov. 22, 2019 Opinion & Order is
available at https://is.gd/uEB1I4 from Leagle.com.
Thomas Danielkiewicz, Katherine Danielkiewicz, Don Martin, John
Curcio, Georgia Stamates, Arlene Powers, Nancy Leonti, Linda Watts
& Claudia Goodman, Plaintiffs, represented by Bradley Mathew Beall,
Robbins Geller Rudman & Dowd LLP, Christopher C. Gold, Robbins
Geller Rudman & Dowd LLP, Mark Samuel Reich, Robbins Geller Rudman
& Down LLP, Sharon S. Almonrode, The Miller Law Firm, P.C., Stuart
Andrew Davidson, Robbins Geller Rudman & Dowd LLP, William Kalas --
WK@miller.law -- The Miller Law Firm, P.C. & E. Powell Miller --
epm@miller.law -- The Miller Law Firm.
Ray Angerman, Kris Angerman, Paula Stockbridge & Janice Parker,
Plaintiffs, represented by Bradley Mathew Beall, Robbins Geller
Rudman & Dowd LLP, Christopher C. Gold, Robbins Geller Rudman &
Dowd LLP, Dennis A. Lienhardt, The Miller Law Firm, P.C., Sharon S.
Almonrode, The Miller Law Firm, P.C., Stuart Andrew Davidson,
Robbins Geller Rudman & Dowd LLP, William Kalas, The Miller Law
Firm, P.C. & E. Powell Miller, The Miller Law Firm.
Tania Jenkins, Terry Moeller, Rick Moeller, Lynn Apgar, Richard
Hahn & Gloria Hahn, Plaintiffs, represented by Dennis A. Lienhardt,
The Miller Law Firm, P.C., William Kalas, The Miller Law Firm, P.C.
& E. Powell Miller, The Miller Law Firm.
Whirlpool Corporation, Defendant, represented by Howard B. Iwrey --
hiwrey@dykema.com -- Dykema Gossett, James P. Feeney --
jfeeney@dykema.com -- Dykema Gossett, Jessica G. Scott, Wheeler
Trigg O'Donnell LLP & Michael T. Williams -- williams@wtotrial.com
-- Wheeler Trigg O'Donnell LLP.
WHIRLPOOL CORP: Court Tags as Moot Motion to Dismiss Nathan Suit
----------------------------------------------------------------
In the case captioned ERIC NATHAN, et al., on behalf of themselves
and others similarly situated, Plaintiffs, v. WHIRLPOOL
CORPORATION, Defendant, Case No. 3:19-cv-226 (S.D. Ohio), Judge
Walter H. Rice of the U.S. District Court for the Southern District
of Ohio overruled as moot the Defendant's Motion to Dismiss
Plaintiffs' Class Action Complaint given that the Plaintiffs have
now filed an Amended Class Action Complaint.
A full-text copy of the Court's Nov. 12, 2019 Decision & Entry is
available at https://is.gd/rVUk4H from Leagle.com.
Eric Nathan, Chris Smith, William Johnson, Richard Tschernjawski &
Judith Anderson, Plaintiffs, represented by Paul M. De Marco --
pdemarco@msdlegal.com -- Markovits, Stock & DeMarco, LLC, Wilbert
Benjamin Markovits -- bmarkovits@msdlegal.com -- Markovits, Stock &
DeMarco LLC, Nathan D. Prosser -- nprosser@hjlawfirm.com -- pro hac
vice & Terence Richard Coates -- tcoates@msdlegal.com -- Markovits,
Stock & DeMarco, LLC.
KitchenAid, Inc., Defendant, represented by James Alan Dyer --
jdyer@ssdlaw.com -- Sebaly Shillito & Dyer.
Whirlpool Corporation, Defendant, represented by James Alan Dyer,
Sebaly Shillito & Dyer, Andrew M. Unthank -- unthank@wtotrial.com
-- pro hac vice & Daniel N. Guisbond -- guisbond@wtotrial.com --
pro hac vice.
Asbestos Litigation
ASBESTOS UPDATE: Navistar Still Faces Exposure Claims at Oct. 31
----------------------------------------------------------------
Navistar International Corporation continues to face asbestos
claims related to its facilities and older vehicle models,
according to the Company's Form 10-K filed with the U.S. Securities
and Exchange Commission on December 17, 2019, for the fiscal year
ended October 31, 2019.
The Company states, "Along with other vehicle manufacturers, we
have been subject to an increased number of asbestos-related claims
in recent years. In general, these claims relate to illnesses
alleged to have resulted from asbestos exposure from component
parts found in older vehicles, although some cases relate to the
alleged presence of asbestos in our facilities. In these claims,
we are generally not the sole defendant, and the claims name as
defendants numerous manufacturers and suppliers of a wide variety
of products allegedly containing asbestos.
"We have strongly disputed these claims, and it has been our policy
to defend against them vigorously. Historically, the actual
damages paid out to claimants have not been material in any year to
our financial condition, results of operations, or cash flows. It
is possible that the number of these claims will continue to grow,
and that the costs for resolving asbestos related claims could
become significant in the future."
A full-text copy of the Form 10-K is available at
https://is.gd/iGVUxc
*********
S U B S C R I P T I O N I N F O R M A T I O N
Class Action Reporter is a daily newsletter, co-published by
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Fernandez, Joy A. Agravante, Psyche A. Castillon, Julie Anne L.
Toledo, Christopher G. Patalinghug, and Peter A. Chapman, Editors.
Copyright 2020. All rights reserved. ISSN 1525-2272.
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