/raid1/www/Hosts/bankrupt/CAR_Public/200203.mbx
C L A S S A C T I O N R E P O R T E R
Monday, February 3, 2020, Vol. 22, No. 24
Headlines
27 DRESSINGS HEWLETT: Padilla Seeks to Recover Overtime Wages
ACACIA RESEARCH: Wilson Sues over Defective Proxy Statement
AKORN: Faces Shareholder Class Action Over Massive Fraud
ALLIANCE FUNDING: Vandenberg Seeks to Certify Two TCPA Classes
ALLIEDINTERSTATE LLC: Talaferro Alleges Wrongful Debt Collections
ARDENT HEALTH: Faces Suit over Mismanagement of Retirement Plan
B&G FOODS: Faces Silva Suit Over Adulterated Ortega Taco Shells
BAIRD DRYWALL: Underpays Laborers, Britt Suit Alleges
BAYER HEALTHCARE: Prescott Sues Over Deceptive Sale of Sunscreens
CALIFORNIA FOOD: Puente Seeks Fines for Unpaid Wages Under PAGA
CARSON SMITHFIELD: Phillips Alleges Wrongful Debt Collections
CENTO FINE: "San Marzano" Tomato Class Action Can Proceed
CENTRAL COAST RESTAURANTS: Certification Bid Hrg. in Garcia Moved
CHAMPION PETFOODS: Class Action Over Dog Food Can Proceed
CHEWY INC: Guglielmo Says Website Not Blind-accessible
CHINESE BODYWORKS: Court Denies FLSA Class Cert. Bid in Li Suit
CIRCLE 2 INC: Esedebe Suit Seeks Minimum & OT Wages Under FLSA
CORINTHIAN COLLEGE: Ex-Students Seek More Actions Against Devos
COULTER VENTURES: Conditional Certification of FLSA Class Sought
CRAFT BREW: Kost Suit Challenges Proposed Sale to Anheuser-Busch
CREDIT MANAGEMENT: Placeholder Class Cert. Bid Filed in "Kuchta"
CRESTWOOD BEHAVIORAL: Faces Kamara Employment Suit in California
CV SCIENCES: Nevada District Denies Bid to Dismiss Securities Suit
DCH HEALTH: Faces Class Action Over Ransomware Attack
DEPENDABLE HIGHWAY: Faces Hoff Employment Suit in California
DOLLAR TREE: Sells Almondmilk With Misleading Label, Powell Says
DUN HUANG CORP: Underpays Waiters, Chen Suit Alleges
EASTERN MUSHROOM: Bid to Dismiss Winn-Dixie Antitrust Suit Denied
ENVIRONMENTAL SERVICE: Fails to Pay Overtime Wages, Cabrito Says
FAB4 LLC: Fails to Pay for All Overtime Hours, Haghoubian Claims
FEDEX CORP: Travers Seeks Pay for Short-Term Military Leave
GENERAL MOTORS: Class Cert. Bid in Monteville Sloan Case Shelved
GREAT LAKES ASSEMBLIES: Underpays Assembly Workers, Butcher Claims
GUIDANT GLOBAL: Smith Seeks to Certify FLSA Class of Workers
HINDS COUNTY SD: Clincy FLSA Suit Removed to S.D. Mississippi
IOWA: Beverages Div. Sued for Illegally Raising Liquor Prices
JENNY JN NAILS: Underpays Nail Salon Workers, Chang Suit Alleges
JEWELRY EXPRESS: Faces Cooks ADA Class Suit in C.D. California
JFAT LLC: Weatherly Seeks Penalties Under PAGA Over Untimely Pay
JOHNNY WAS LLC: Fails to Pay Proper Wages, Campos Claims
JUUL LABS: Breaches Duty to Minority Stockholders, Grove Claims
KALISPELL REGIONAL: Faces Data Breach Class Action
KANSAS: Bids for New Class Counsel Appointment in Porter Denied
KOHL'S DEPARTMENT: Brown-Henry Sues Over Unwanted Telephone Calls
KRAFT FOODS: Court Certifies 2 Classes in Ploss Trust Suit
KSM HEALTHCARE: Underpays Housekeepers, Hernandez Suit Alleges
LANDS' END INC: Uniforms Cause Health Problems, Workers Claim
LEBO AUTOMOTIVE: Faces Legare Wage and Hour Suit in California
LVNV FUNDING: Faces Ruvalcaba Suit Alleging Violation of FDCPA
MARY KAY INC: Court Dismisses Reid Class Suit Over ADA Breach
MATSU FUSION: Underpays Deliverymen, Chen Suit Alleges
MAZDA: Faces Class Action Over i-Activsense Brakes
MCKENZIE PAUL: Francois Sues over Debt Collection Practices
MDL 2672: Bids to File Under Seal in VW Clean Diesel Suit Denied
MEDICREDIT INC: 5th Cir. Overturns Class Cert. Ruling in Flecha
MINCH PROFESSIONAL: Underpays Cleaners, Eder Suit Alleges
MOHAWK INDUSTRIES: PERS of Miss. Sues Over Drop of Stock Price
MSC INDUSTRIAL: Guglielmo Sues Over Disabilities Act Violations
NATURAL ENERGY: Farber Seeks to Recover Overtime Wage Under FLSA
NCB MANAGEMENT: Placeholder Class Cert. Bid Filed in Lisiecki Suit
NEWELL BRANDS: Court Dismisses Securities Suit Without Prejudice
NORTHBRIDGE COMPANIES: Blundo Sues Over Unlawful Community Fees
NORWALK, CT: Conditional Certification of Collective Action Sought
OCWEN LOAN: Court Denies Bid to Certify Class in Bess Suit
OMAHA, NE: Court Narrows Claims in MOPOA Suit Over Housing Code
PALMCO ENERGY: Has Made Unsolicited Calls, Abramson Suit Claims
PAPA JOHN'S: DeSalvo Sues Alleging Violation of Disabilities Act
PEP BOYS: Al Zinnah Seeks to Recover Unpaid Wages and Deductions
POCH PERSONNEL: Faces Samuels Employee Class Suit in California
POLK COUNTY, FL: Class Cert. Bid in Conrad Case's Suit Denied
PREMIER AUTOMOTIVE: Marazzito Sues Over Unknown Documentary Fees
PRO TREE: Court Approves Settlement in Hernandez Suit
PROSHARES TRUST: Court Dismisses Second Amended Securities Suit
QUANTUM GLOBAL: $126K Taafu Suit Deal Denied Initial Court Approval
RECEIVABLES PERFORMANCE: Zurakov Files Placeholder Class Cert. Bid
ROUSSELOT PEABODY: Facility Emits Noxious Odors, Baranofsky Says
RUST-OLEUM CORP: Garrard Sues Over Efficacy of Restore Products
SAN LUIS OBISPO, CA: Faces Okun Civil Rights Suit in C.D. Calif.
SANDERSON FARMS: 2nd Cir. Upholds Dismissal of Gamm Securities Suit
SEIU LOCAL 668: First Amended Wenzig Suit Dismissed With Prejudice
SHASTA ENTERPRISES: Underpays Exotic Dancers, Addison Alleges
SIRENS: $600K Settlement in Hogan Suit Gets Prelim. Approval
SIRIUS XM: Dismissal Notice in Sheridan Infringement Suit Rejected
SPRINGPOINT SENIOR: Faces Duffy Suit Over Consumer Fraud Scheme
STATE FARM: Stuart Insurance Suit Deal Gets Prelim. Approval
STERLING CREDIT: Faces Ferrando Suit Alleging Violation of FDCPA
SUNPOWER CORP: Fabricant Sues Over Unsolicited Marketing Calls
TECH DATA: Faces Post Suit over Proposed Apollo Global Merger
TECH DATA: Faces Shareholder Class Action Over Apollo Merger
TENNESSEE: Parole Violators' Bail Class Action Can Proceed
TEXAS ROADHOUSE: Tupitza Seeks Overtime Wages for Asst. Managers
TREADZ AUTO: $5MM Class Action Lawsuit Certified in Calgary
TRENDZ BEAUTY: Ghazarian Seeks Damages Over Labor Code Violations
TWC ADMINISTRATION: Court Denies Class Cert. Bid in Gibbs Suit
ULISES PHARMACY: Underpays Pharmacy Technicians, Suit Alleges
UNION LOCAL 237: 2nd Cir. Upholds Dismissal of Amended Wynn Suit
UNITED AIRLINES: Flores Suit Over Airfare Insurance Kickback Nixed
VALDEZ PAINTING: Faces Brasier Employment Suit in California
VIGLIOTTI ENTERPRISES: Cordova Sues Over Unpaid Overtime Wages
VIGLIOTTI ENTERPRISES: Cordova Sues Seeks Unpaid Overtime Wages
WELLSPACE HEALTH: Faces Hewitt-King Labor Suit in Sacramento
*********
27 DRESSINGS HEWLETT: Padilla Seeks to Recover Overtime Wages
-------------------------------------------------------------
Elbin Alexander Padilla, individually and on behalf of all others
similarly situated v. 27 DRESSINGS HEWLETT, INC., 27 DRESSINGS,
INC., and LEENOR NATHAN, ALLEN NATHAN AND MICHAEL SHEENA, as
individuals, Case No. 2:20-cv-00455 (E.D.N.Y., Jan. 27, 2020), is
brought against the Defendants to recover damages for their
egregious violations of state and federal wage and hour laws,
including the New York Labor Law and the Fair Labor Standards Act,
arising out of the Plaintiff's employment with them.
Although the Plaintiff worked for 57 or more hours per week during
his employment by the Defendants, the Defendants did not pay the
Plaintiff time and a half for hours worked over 40, a blatant
violation of the overtime provisions contained in the FLSA and
NYLL, says the complaint.
The Plaintiff was employed by the Defendants as a cook, cleaner,
counter person and waiter.
27 DRESSINGS HEWLETT, INC. is a corporation organized under the
laws of New York with a principal executive office in Hewlett, New
York.[BN]
The Plaintiff is represented by:
Roman Avshalumov, Esq.
HELEN F. DALTON & ASSOCIATES, P.C.
80—02 Kew Gardens Road, Suite 601
Kew Gardens, NY 11415
Phone: 718-263-9591
Fax: 718-263-9598
ACACIA RESEARCH: Wilson Sues over Defective Proxy Statement
-----------------------------------------------------------
BILL WILSON, individually and on behalf of all other similarly
situated, Plaintiff v. MAUREEN O'CONNELL; CLIFFORD PRESS; ALFRED V.
TOBIA, JR.; KATHARINE WOLANYK; ISAAC T. KOHLBERG; LUIS E.
RINALDINI; JONATHAN SAGAL; and ACACIA RESEARCH CORPORATION,
Defendants, Case No. 2019-1049 (Del. Ch., Dec. 31, 2019) is an
action arising from alleged breaches of fiduciary duty by the board
of directors of Acacia in connection with the Board's dissemination
of a materially omissive proxy statement which seeks to solicit
stockholder approval in connection with the Company's entry into a
$35 million Securities Purchase Agreement with Starboard Value LP.
According to the complaint, on November 18, 2019, Acacia announced
that it had entered into the Purchase Agreement with Starboard. The
Purchase Agreement provides for, among other things, the issuance
to Starboard of: (i) 350,000 shares of Acacia Series A Convertible
Preferred Stock (the "Preferred Shares"), with an initial
conversion price of $3.65 per share; and (ii) warrants to purchase
up to 5,000,000 shares of Acacia's common stock at an initial
exercise price of $3.65 (the "Series A Warrants").
On December 10, 2019 Acacia filed a preliminary proxy statement
(the "Proxy") with the U.S. Securities and Exchange Commission
("SEC") soliciting stockholder approval of (i) the Nasdaq Proposal
and (ii) a charter amendment that would triple the amount of the
Company's authorized shares of common stock (the "Charter
Amendment"). According to the Proxy, following stockholder approval
of the Nasdaq Proposal and Charter Amendment, Acacia will also
issue to Starboard warrants to purchase up to 100,000,000 shares of
common stock (the "Series B Warrants").
The Proxy is so materially deficient that it deprives Acacia
stockholders of any meaningful way to assess the reasonableness of
the process leading to -- or the financial fairness of -- the
Purchase Agreement. Indeed, the Proxy fails to disclose, among
other things: a. Anything regarding the process or negotiations
culminating in the Purchase Agreement; b. Whether the Board
explored any alternatives to the Purchase Agreement; c. Whether the
Board retained and/or consulted with any financial advisor(s) in
connection with the Purchase Agreement; d. A summary of any
financial analysis prepared by any such financial advisor; e. A
summary of any such financial advisor's prior and present
engagements with Acacia or Starboard, and any compensation received
by any such financial advisor therefrom; or f. The nature and
amount of the compensation payable to any such financial advisor
for its services in connection with the Purchase Agreement.
Acacia Research Corporation develops, acquires, and licenses
patented technologies. The Company controls patent portfolios
covering technologies used in a variety of industries. Acacia
Research serves customers worldwide. [BN]
The Plaintiff is represented by:
Blake A. Bennett, Esq.
COOCH AND TAYLOR, P.A.
1007 N. Orange Street, Suite 1120
Wilmington, DE 19801
Telephone: (302) 984-3800
- and -
D. Seamus Kaskela, Esq.
KASKELA LAW LLC
18 Campus Boulevard, Suite 100
Newtown Square, PA 19073
Telephone: (888) 715-1740
AKORN: Faces Shareholder Class Action Over Massive Fraud
--------------------------------------------------------
Courthouse News Service reported that a shareholder class action
accuses directors of "a massive fraud that has left Akorn -- a
once-vibrant multibillion-dollar pharmaceutical company -- in
ruins," in federal court.
A copy of the Complaint is available at:
https://is.gd/kgr3eH
ALLIANCE FUNDING: Vandenberg Seeks to Certify Two TCPA Classes
--------------------------------------------------------------
In the class action lawsuit styled as VANDENBERG & SONS FURNITURE,
INC. a Michigan corporation, individually and as the representative
of a class of similarly-situated persons, the Plaintiff, v.
ALLIANCE FUNDING GROUP and JOHN DOES 1-10, the Defendants, Case No.
1:15-cv-01255-GJQ-RSK (W.D. Mich.), the Plaintiff asks the Court
for an order:
1. certifying two classes:
Class A
"all persons or entities, identified in the WestFax opt-out
list for Defendant, who were successfully sent the same or
similar fax to the Complaint from December 3, 2011 to
December 3, 2015"; and
Class B
"all persons who were successfully sent the same or similar
fax to the Complaint on January 18, 2013, January 23, 2013,
February 25, 2013, March 9, 2013, March 19, 2013, April 3,
2013, April 10, 2013, May 6, 2013, June 5, 2013, June 17,
2013, July 9, 2013, September 3, 2013, and June 9, 2014";
and
2. appointing Plaintiff as class representative and appointing
the law firm Anderson + Wanca as class counsel.
The case arises out of Defendant Alliance Funding custom and
practice of fax advertising wherein facsimile advertisements were
sent to Plaintiff and the proposed classes on numerous occasions
between December 3, 2011 and December 3, 2015. The record evidence
demonstrates that Defendant sent approximately 232,879 fax
advertisements during the class period, says the complaint. The
Plaintiff brought this lawsuit alleging that the fax violated the
Telephone Consumer Protection Act of 1991.
Alliance Funding has been financing small, medium, and enterprise
sized businesses throughout the United States since 1998.[CC]
The Plaintiff is represented by:
Ross M. Good, Esq.
Ryan M. Kelly, Esq.
ANDERSON + WANCA
3701 Algonquin Road, Suite 500
Rolling Meadows, IL 60008
Telephone: 847 368 1500
Facsimile: 847 368 1501
E-mail: rgood@andersonwanca.com
rkelly@andersonwanca.com
ALLIEDINTERSTATE LLC: Talaferro Alleges Wrongful Debt Collections
-----------------------------------------------------------------
VINCENT TALAFERRO, individually and on behalf of all others
similarly situated, Plaintiff v. ALLIEDINTERSTATE, LLC; DOES 1
THROUGH 10, INCLUSIVE, Defendants, Case No. 2:19-cv-06090-ER (E.D.
Pa., Dec. 24, 2019) seeks to stop the Defendant's unfair and
unconscionable means to collect a debt. The case is assigned to
Honorable Eduardo C. Robreno.
Allied Interstate, LLC provides financial services. The Company
offers accounts receivable, customer retention, and debt collection
services. Allied Interstate serves customers throughout the United
States. [BN]
The Plaintiff is represented by:
Arkady Eric Rayz, Esq.
KALIKHMAN & RAYZ LLC
1051 County Line Road, Suite A
Huntingdon Valley, Pa 19006
Telephone: (215) 364-5030
Facsimile: (215) 364-5029
E-mail: Erayz@Kalraylaw.Com
ARDENT HEALTH: Faces Suit over Mismanagement of Retirement Plan
---------------------------------------------------------------
MARK MCCOOL; SHAWN MACDONALD; and WARREN HARLAN, individually and
on behalf of all others similarly situated, Plaintiffs v. ARDENT
HEALTH SERVICES, LLC; BOARD OF DIRECTORS OF ARDENT HEALTH SERVICES;
DAVID T. VANDEWATER; ARDENT HEALTH SERVICES BENEFITS PLAN
ADMINISTRATION COMMITTEE; NEIL HEMPHILL; BRIAN WALTON; JAMES
GRIMES; ASHLEY CRABTREE; STEVE HINKLE; and JOHN DOES 1-30,
Defendants, Case No. 3:19-cv-01158 (M.D. Tenn., Dec. 24, 2019)
alleges violation of the Employee Retirement Income Security Act of
1974.
According to the Plaintiffs, during the putative Class Period,
December 24, 2013 to the present, the Defendants, as "fiduciaries"
of the Ardent Health Services Retirement Savings Plan (the "Plan"),
breached the duties they owed to the Plan, to the Plaintiffs, and
to the other participants of the Plan by: (1) failing to
objectively and adequately review the Plan's investment portfolio
with due care to ensure that each investment option was prudent, in
terms of cost; and (2) maintaining certain funds in the Plan
despite the availability of identical or similar investment options
with lower costs and better performance histories.
To make matters worse, the Defendants failed to utilize the lowest
cost share class for many of the mutual funds within the Plan, and
failed to consider collective trusts, commingled accounts, or
separate accounts as alternatives to the mutual funds in the Plan,
despite their lower fees.
The Defendants' mismanagement of the Plan, to the detriment of
participants and beneficiaries, constitutes a breach of the
fiduciary duties of prudence and loyalty. Their actions were
contrary to actions of a reasonable fiduciary and cost the Plan and
its participants millions of dollars.
Ardent Health Services, LLC provides healthcare services. The
Company offers network of acute care hospitals, rehabilitation,
multi-specialty physician group, health plans, and retail
pharmacies. Ardent Health Services serves patients in the United
States. [BN]
The Plaintiff is represented by:
Nicholas Daniel Waite, Esq.
LAW OFFICE OF NICHOLAS DANIEL WAITE
219 2nd Avenue N., Suite 400
Nashville, TN 37201-1616
Telephone:(855) 566-3948
- and -
Mark K. Gyandoh, Esq.
CAPOZZI ADLER, P.C.
2933 North Front Street
Harrisburg, PA 17110
Telephone: (717) 233-4101
Facsimile: (717) 233-4103
B&G FOODS: Faces Silva Suit Over Adulterated Ortega Taco Shells
---------------------------------------------------------------
SABRINA SILVA and NANCY SHIER, on behalf of themselves and all
others similarly situated v. B&G FOODS, INC. and B&G FOODS NORTH
AMERICA, INC., Case No. 4:20-cv-00137 (N.D. Cal., Jan. 7, 2020),
alleges that the Defendants falsely marketed and falsely
represented Ortega as free of trans fat when it contained dangerous
levels of trans fat.
According to the complaint, Defendants' taco shells containing PHO
included two different varieties sold under the label of Ortega.
The Plaintiffs contend that the Defendants misleadingly marketed
Ortega with an unauthorized nutrient content claim. The Plaintiffs
assert that the misleading and unauthorized claim deceived
consumers into purchasing a product that is harmful to their
health.
On June 17, 2015, the U.S. Food and Drug Administration determined
that PHO is unsafe for use in food. Yet the Defendants continued to
insert this illegal, dangerous additive into the Trans Fat Tacos,
even after the FDA tentatively, and now finally, declared it unsafe
for use in food, rendering products made with PHO unlawful and
adulterated, the Plaintiffs aver.
PHO is a food additive banned in many parts of the world due to its
artificial trans fat 2 content. Artificial trans fat is a toxic
carcinogen for which there are many safe and commercially viable
substitutes.
The action is brought to remedy the Defendants' unlawful conduct.
The Plaintiffs seek restitution, actual damages, and punitive
damages to the extent permitted under the law and for costs,
expenses, and reasonable attorneys' fees.
The Plaintiffs repeatedly purchased and consumed Ortega during the
Class Period.
B&G Foods, Inc. manufactures, distributes, and sells the Trans Fat
Tacos.[BN]
The Plaintiffs are represented by:
Gregory S. Weston, Esq.
THE WESTON FIRM
1405 Morena Blvd., Suite 201
San Diego, CA 92110
Telephone: (619) 798-2006
Facsimile: (619) 343-2789
E-mail: greg@westonfirm.com
BAIRD DRYWALL: Underpays Laborers, Britt Suit Alleges
-----------------------------------------------------
JOSEPH BRITT, individually and on behalf of all others similarly
situated, Plaintiff v. BAIRD DRYWALL & ACOUSTIC, INC., Defendant,
Case No. 7:19-cv-00882-EKD (W.D. Va., Dec. 30, 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 Britt was employed by the Defendant as laborer.
Baird Drywall And Acoustic, Inc. was founded in 1980. The company's
line of business includes providing asphalt tile, carpeting,
linoleum, and resilient flooring installation and services. [BN]
The Plaintiff is represented by:
Craig Juraj Curwood, Esq.
CURWOOD LAW FIRM, PLC
530 E. Main Street, Suite 710
Richmond, VA 23219
Telephone: (804) 788-0808
Facsimile: (804) 767-6777
E-mail: ccurwood@curwoodlaw.com
- and –
Timothy Coffield, Esq.
COFFIELD PLC
106-F Melbourne Park Circle
Charlottesville, VA 22901
Telephone: (434) 218-3133
Facsimile: (434) 321-1636
E-mail: c@coffieldlaw.com
BAYER HEALTHCARE: Prescott Sues Over Deceptive Sale of Sunscreens
-----------------------------------------------------------------
STEVEN PRESCOTT and MIKE XAVIER, individually and on behalf of all
others similarly situated v. BAYER HEALTHCARE PHARMACEUTICALS INC.,
a Delaware corporation; BAYER HEALTHCARE LLC, a Delaware limited
liability company; BAYER AG, a public limited company; BEIERSDORF,
INC., a Delaware corporation; BEIERSDORF NORTH AMERICA, INC., a
Delaware corporation; and BEIERSDORF AG, a public limited company,
Case No. 5:20-cv-00102-NC (N.D. Cal., Jan. 3, 2020), alleges that
the Defendants are exposing babies and children to harmful
chemical-based ingredients hidden in their sunscreens by
fraudulently passing them off as safe mineral-based ingredients to
obtain an unfair competitive advantage in the billion-dollar
sunscreen market, in violation of the California Unfair Competition
Law, the California False Advertising Law, and the California
Consumers Legal Remedies Act.
Contrary to their labeling, the purported mineral-based sunscreen
Products contain chemical active ingredients. In fact, the Products
often contain a larger percentage of chemical active ingredients
than mineral active ingredients, says the complaint.
According to the complaint, through falsely, misleadingly, and
deceptively labeling the Products, the Defendants sought to take
advantage of consumers' desire for mineral-based sunscreens, while
reaping the financial benefits of using less desirable chemical
active ingredients in the Products. The Defendants have done so at
the expense of unwitting consumers, as well as Defendants' lawfully
acting competitors, over whom Defendants maintain an unfair
competitive advantage, the Plaintiffs contend.
The purported "Mineral-Based" products at issue are Coppertone
Water Babies Mineral-Based Sunscreen Stick; Coppertone Water Babies
Mineral-Based Sunscreen Lotion; Coppertone Kids Mineral-Based
Sunscreen Lotion; and Coppertone Sport Face Mineral-Based Sunscreen
Lotion.
The Plaintiffs seek damages, interest, reasonable attorneys' fees
and costs, restitution, other equitable relief, and disgorgement of
all benefits Defendants have enjoyed from their conduct. In
addition, Plaintiffs seek injunctive relief to stop Defendants'
unlawful conduct in the false, deceptive, and misleading labeling
and marketing of the Products.
The Defendants manufacture, market, advertise, label, and sell the
Products throughout California and the United States.[BN]
The Plaintiffs are represented by:
Shireen M. Clarkson, Esq.
Ryan J. Clarkson, Esq.
Celine Cohan, Esq.
CLARKSON LAW FIRM, P.C.
9255 Sunset Blvd., Suite 804
Los Angeles, CA 90069
Telephone: (213) 788-4050
Facsimile: (213) 788-4070
E-mail: sclarkson@clarksonlawfirm.com
rclarkson@clarksonlawfirm.com
ccohan@clarksonlawfirm.com
- and -
Christopher D. Moon, Esq.
Kevin O. Moon, Esq.
MOON LAW APC
228 Hamilton Ave., 3rd Floor
Palo Alto, CA 94301
Telephone: (619) 915-9432
Facsimile: (650) 618-0478
E-mail: chris@moonlawapc.com
kevin@moonlawapc.com
CALIFORNIA FOOD: Puente Seeks Fines for Unpaid Wages Under PAGA
---------------------------------------------------------------
FELIPE CARRERA PUENTE, an individual, on behalf of himself, all
other aggrieved employees, and the general public v. CALIFORNIA
FOOD MANAGEMENT, LLC, a California limited liability company,
INGLEWOOD 2017 INC., a California corporation, PARAMOUNT 3582 INC.,
a California corporation, ASH HOP INC., a California corporation,
ASH HOP II INC., a California corporation, ASH HOP III, INC., a
California corporation, NORWALK 939 PROPERTIES, INC., a California
corporation, and DOES 1 through 100, inclusive, Case No.
20STCV00647 (Cal. Super., Los Angeles Cty., Jan 6, 2020), seeks
civil penalties against the Defendants alleging violation of the
California Labor Code Private Attorneys General Act.
The lawsuit challenges the Defendants' employment practices with
respect to their non-exempt, hourly workers employed in the State
of California at the Defendants' restaurant locations, based on the
Defendants' policy and practice of failing to provide legally
compliant meal and rest breaks, denying earned wages, including
overtime pay, and failing to provide accrued sick days to the
Restaurant Employees from October 4, 2018, to the present.
In particular, the Defendants require employees to perform work
tasks during unpaid breaks, fail to provide meal and rest breaks,
fail to timely compensate employees for all wages earned, and fail
to properly and accurately calculate overtime and report wages
earned, hours worked, and wage rates, says the complaint.
The Plaintiff commenced his employment with the Defendants in the
summer of 2018, and worked as a non-exempt, hourly employee until
his resignation in August 2019.
The Defendants operate several IHOP restaurant locations in
California. IHOP is an American multinational pancake house
restaurant chain that specializes in breakfast foods.[BN]
The Plaintiff is represented by:
Michael H. Boyamian, Esq.
Alfred Movsesyan, Esq.
Katrina Castillo Espina, Esq.
BOYAMIAN LAW, INC.
550 North Brand Boulevard, Suite 1500
Glendale, CA 91203-1922
Telephone: 818 547 5300
Facsimile: 818 547 5678
E-mail: michael@boyamianlaw.com
alfred@boyamianlaw.com
katrina@boyamianlaw.com
CARSON SMITHFIELD: Phillips Alleges Wrongful Debt Collections
-------------------------------------------------------------
DAVID M. PHILLIPS, individually and on behalf of all others
similarly situated, Plaintiff v. CARSON SMITHFIELD, LLC, Defendant,
Case No. 2:19-cv-01664-PLD (Pa. Com., Pleas, Allegheny Cty., Dec.
24, 2019) seeks to stop the Defendant's unfair and unconscionable
means to collect a debt.
Carson Smithfield, LLC is a debt collection agency located in
Woodbury New York and a branch office in Pittsburgh, Pennsylvania.
It was established in 2010, has fewer than 10 employees, and is
managed by owner Albert Jaronczyk. [BN]
The Plaintiff is represented by:
Joshua P. Ward, Esq.
Brian J. Fenters, Esq.
THE LAW FIRM OF FENTERS WARD
201 South Highland Avenue, Suite 201
Pittsburgh, PA 15206
Telephone: (412) 545-3015
Facsimile: (412) 540-3399
CENTO FINE: "San Marzano" Tomato Class Action Can Proceed
---------------------------------------------------------
Courthouse News Service reported that a putative class action suit
against Cento Fine Foods may continue, a federal court in
California ruled, because the consumers have sufficiently claimed
that packaging on the company's "San Marzano" tomato products gives
the impression that they are grown in a specific region of Italy.
A copy of the Order on Defendant's Motion to Dismiss is available
at:
https://is.gd/O2DhUo
CENTRAL COAST RESTAURANTS: Certification Bid Hrg. in Garcia Moved
-----------------------------------------------------------------
In the case, JENNIFER GARCIA, individually and acting on behalf of
a class of similarly situated employees, Plaintiff, v. CENTRAL
COAST RESTAURANTS, INC., YADAV ENTERPRISES, INC.; and DOES 1-20;
Defendants, Case No. 18-cv-02370-RS (N.D. Cal.), Judge Richard
Seeborg of the U.S. District Court for the Northern District of
California has entered an order regarding modification of the class
certification motion schedule.
The parties jointly presented a stipulation to apprise the Court of
recent events in the case and a related case and to request that
the Court continue the class certification motion briefing schedule
and hearing date.
The parties in the case last came before the Court when the
Defendants moved for summary judgment on arbitration and res
judicata grounds. Defendants argued that the judgment in Contreras,
et al. v. Central Coast Restaurants, et al., Monterey Superior
Court Case Number 15-CV-000143, resolved the claims at issue in the
Garcia case. The Court denied the Defendants' motion on Sept. 23,
2019.
The defendants in the Monterey case, represented by the counsel for
the Defendants in the instant case, then filed a Motion to Set
Aside Judgment Entered, or in the Alternative, to Vacate the
Judgment. The plaintiffs in the Monterey case, represented by the
counsel for Plaintiff in the instant case, then filed a Motion to
Enforce Judgment Entered and for Attorneys' Fees.
The court in the Monterey case heard initial arguments on the set
aside on Oct. 29, 2019, and continued the motion to Nov. 12, 2019,
so that it would be fully argued concurrent to the motion to
enforce. The court in the Monterey case ordered the parties to
explore mediation and contemplate a global mediation of both the
case in superior court and the federal class action.
Since then, the parties have agreed to participate in a global
mediation of the two cases and have discussed its parameters.
Mediation was tentatively scheduled for mid-January 2020.
Because of the forthcoming global mediation, the parties have
taken the pending motions in the Monterey case off calendar, they
can and would be put back on calendar if necessary.
Although mediation of the Monterey case and the case will occur in
January 2020, the Court, in its order on Dec. 14, 2018, set hearing
for the Plaintiff's Motion for Class Certification on March 26,
2020. At present, the Plaintiff's opening papers were due on Dec.
23, 2019. The Defendants' opposition is due Feb. 6, 2020, and the
Plaintiff's reply is due March 6, 2020. Because of the substantial
proceedings in the Monterey case and the forthcoming mediation in
both the Monterey case and the case, the parties will not be able
to meet the current class certification motion briefing schedule.
In light of the foregoing and in order to preserve resources for
mediation, the parties stipulate to continue the briefing
scheduling and hearing date on the motion addressing class
certification for three months. The parties proposed and Judge
Seeborg approved the following briefing schedule:
(i) Initial papers for addressing class certification must
be filed and served on March 16, 2020;
(ii) Opposition to the motion must be filed on April 30, 2020;
(iii) Reply brief to the motion must be filed on May 29, 2020;
(iv) The hearing date of the motion addressing class
certification will be set for July 2, 2020, at 10 a.m.
or to a date thereafter as set by the Court.
A full-text copy of the Court's Dec. 13, 2019 Order is available at
https://is.gd/dRdui6 from Leagle.com.
Jennifer Garcia, an individual, individually and acting on behalf
of class of similarly situated employees, Plaintiff, represented
by
Hector R. Martinez - hectorm@themmlawfirm.com - Mallison &
Martinez, Stanley Scott Mallison - stanm@themmlawfirm.com -
Mallison & Martinez & Hilary P. Hammell - hilary@levyvinick.com -
Mallison & Martinez.
Central Coast Restaurants, Inc. & Yadav Enterprises, Inc.,
Defendants, represented by Joshua Martin Deitz - jdeitz@rjo.com -
Rogers, Joseph, O'Donnell, Katherine M. Svinarich, Rogers Joseph
O'Donnell & Dennis Chi-Yu Huie, Rogers Joseph O'Donnell, Robert
Dollar Building, 311 California Street, 10th Floor, San Francisco,
CA 94104-2695
CHAMPION PETFOODS: Class Action Over Dog Food Can Proceed
---------------------------------------------------------
Courthouse News Service reported that consumers who claim they were
scammed into paying top dollar for two brands of premium dog food
may continue their suit against Champion Petfoods, a federal court
in Pennsylvania ruled. The food was billed as human food grade
quality but the consumers provided evidence the food contains high
levels of heavy metals and is contaminated with "excessive
quantities" of hair, insects, livestock tags, feathers and bones.
A copy of the Memorandum Order is available at:
https://is.gd/oF4bIO
CHEWY INC: Guglielmo Says Website Not Blind-accessible
------------------------------------------------------
Joseph Guglielmo, individually and on behalf of all other similarly
situated visually-impaired individuals, Plaintiff, v. Chewy Inc.,
Defendant, Case No. 20-cv-00024 (S.D. N.Y., January 3, 2020), seeks
preliminary and permanent injunction, compensatory, statutory and
punitive damages and fines, prejudgment and post-judgment interest,
costs and expenses of this action together with reasonable
attorneys' and expert fees and such other and further relief under
the Americans with Disabilities Act, New York State Human Rights
Law and New York City Human Rights Law.
Defendant is a pet food and products retailer with an online site,
www.chewy.com. Plaintiff is legally blind and claims that
Defendant's website cannot be accessed by the visually-impaired.
[BN]
Plaintiff is represented by:
David Paul Force, Esq.
STEIN SAKS, PLLC
285 Passaic Street
Hackensack, NJ 07601
Tel: (201) 282-6500 Ext. 107
Fax: (201) 282-6501
Email: dforce@steinsakslegal.com
CHINESE BODYWORKS: Court Denies FLSA Class Cert. Bid in Li Suit
---------------------------------------------------------------
In the class action lawsuit styled as XIN LI, on her own behalf and
on behalf of others similarly situated, the Plaintiff, v. CHINESE
BODYWORKS, INC, et al., the Defendants, Case No.
2:18-cv-11277-ES-JAD (D.N.J.), the Hon. Judge Esther Salas entered
an order on Jan. 24, 2020, denying without prejudice Plaintiff's
motion to conditionally certify a collective action under the Fair
Labor Standards Act.
The Chinese Bodyworks offers body massage services.[CC]
CIRCLE 2 INC: Esedebe Suit Seeks Minimum & OT Wages Under FLSA
--------------------------------------------------------------
Sonya Esedebe, Tarajah Ford, Sandra Robinson, Antoinette Mapp,
Chelsey Slade, Ivy Stewart, Sophia Taylor, Whitney Taylor, and
Destiny Walls, on behalf of themselves and others similarly
situated v. Circle 2, Inc. d/b/a Daddy Rabbits also d/b/a Candy
Bar, BTF3, LLC d/b/a Paper Moon, Imaginary Images, Inc. d/b/a Paper
Moon, M.G.B., Inc. d/b/a Pure Pleasure, Arkesia, Inc. d/b/a Club
Rouge, Pyliaris Corporation, and William Pyliaris, Case No.
3:20-cv-00008-HEH (E.D. Va., Jan. 7, 2020), seeks to recover from
the Defendants unpaid tips, minimum wages and overtime pay under
the Fair Labor Standards Act of 1938.
According to the complaint, the Defendants regularly deprived the
Plaintiffs and other similarly situated members of the putative
class of their rights under federal and Virginia wage and hour
laws, including their rights to be paid proper minimum wages, to be
paid proper overtime compensation, their right to keep earned
customer gratuities or tips, and their right to work without paying
"house fees" and other fees.
This lawsuit seeks to force the Defendants to pay the entertainers
all the wages they have earned and to allow them to keep all the
tips they earn, as required by law.
The Plaintiffs were employed by Defendants as performers and
entertainment employees.
The Defendants operate Gentlemen's Clubs in Virginia.[BN]
The Plaintiffs are represented by:
Craig Juraj Curwood, Esq.
CURWOOD LAW FIRM, PLC
530 E. Main Street, Suite 710
Richmond, VA 23219
Telephone: (804) 788-0808
Facsimile: (804) 767-6777
E-mail: ccurwood@curwoodlaw.com
- and -
Justin P. Keating, Esq.
Rod Harrell, Esq.
BEINS, AXELROD, P.C.
1717 K Street, N.W., Suite 1120
Washington, DC 20006
Telephone: (202) 595-1941
Facsimile: (202) 328-7030
E-mail: jkeating@beinsaxelrod.com
harrellr@yahoo.com
CORINTHIAN COLLEGE: Ex-Students Seek More Actions Against Devos
---------------------------------------------------------------
Courthouse News Service reported that defrauded former Corinthian
College students asked a federal judge to order more sanctions for
the U.S. Department of Education and its secretary Betsy DeVos,
after the department revealed it has collected -- and continues to
collect -- over $20 million from the students after being ordered
to stop.
A copy of the Proposed Motion for Partial Reconsideration is
available at:
https://is.gd/zgM7Or
COULTER VENTURES: Conditional Certification of FLSA Class Sought
----------------------------------------------------------------
In the class action lawsuit styled as SCOTT LEE BRAUN, et al., on
behalf of himself and all others similarly situated, the
Plaintiffs, v. COULTER VENTURES, LLC, DBA ROGUE FITNESS, et al. the
Defendants, Case No. 2:19-cv-05050-GCS-KAJ (S.D. Ohio), Mr. Braun
moves the Court pursuant to the Fair Labor Standards Act for entry
of an order:
1. conditionally certifying a proposed collective FLSA class;
2. implementing a procedure whereby Court-approved Notice of
Plaintiff's FLSA claims is sent (via U.S. Mail and e-mail)
to:
"all current or former non-exempt employees in Defendants'
warehouse, customer service, and/or manufacturing divisions
and employed during the past three years who were paid from
the beginning of their shift until the end of their shift
despite being clocked in more than seven minutes prior to
their shift and/or remaining clocked in more than seven
minute after their scheduled shift end time and/or who were
paid a flat per diem amount while working at off-site
events on behalf of Defendants regardless of the number of
hours worked each day"; and
3. requiring Defendants to, within 14 days of this Court's
order, identify all potential opt-in Plaintiffs by
providing a list in electronic and importable format, of
the names, addresses, and e-mail addresses of all potential
opt-in Plaintiffs who worked for Defendants at any location
at any time within the past three years.
Mr. Braun commenced this action against Defendants on December 11,
2019, alleging violations of the FLSA, the Ohio Wage Act, and the
Ohio Prompt Pay Act. Defendants' common business practices
throughout their operations violated these acts by not paying Named
Plaintiff, Putative Plaintiffs, and those similarly situated for
tasks necessary to the primary job duties which the Named Plaintiff
and the Putative Opt-in Plaintiffs were required to perform before
and after their scheduled shift start and end time, says the
complaint.
Coulter Ventures retails athletics equipment.[CC]
The Plaintiffs are represented by:
Robert E. DeRose, Esq.
Jessica R. Doogan, Esq.
BARKAN MEIZLISH DEROSE WENTZ MCINERNEY PEIFER, LLP
250 E. Broad Street, 10th Floor
Columbus, OH 43215
Telephone: (614) 221-4221
Facsimile: (614) 744-2300
E-mail: bderose@barkanmeizlish.com
jdoogan@barkanmeizlish.com
- and -
Louis A. Jacobs, Esq.
177 19th St., Apt. 9C
Oakland, CA 94612
Telephone: (614) 203-1255
Facsimile: (614) 744-2300
E-mail: LAJOhio@aol.com
- and -
John S. Marshall, Esq.
Helen M. Robinson, Esq.
Edward R. Forman, Esq.
Samuel M. Schlein, Esq.
MARSHALL AND FORMAN, LLC
250 Civic Center Drive, Suite 480
Columbus, OH 43215
Telephone: (614) 463-9790
Facsimile: (614) 744-2300
E-mail: jmarshall@marshallforman.com
hrobinson@marshallforman.com
eforman@marshallforman.com
sschlein@marshallforman.com
CRAFT BREW: Kost Suit Challenges Proposed Sale to Anheuser-Busch
----------------------------------------------------------------
STEVEN KOST, on behalf of himself and all others similarly situated
v. CRAFT BREW ALLIANCE, INC., DAVID R. LORD, TIMOTHY P. BOYLE, MARC
J. CRAMER, PAUL D. DAVIS, MATTHEW GILBERTSON, KEVIN R. KELLY,
NICKOLAS A. MILLS, and JACQUELINE S. WOODWARD, Case No.
20-2-00389-1 SEA (Wash. Super., Jan. 3, 2020), accuses the
Defendants of violating securities laws in connection with their
proposed sale of the Company to Anheuser-Busch Companies, LLC.
The lawsuit is a stockholder class action on behalf of the
Plaintiff and all other public stockholders of Craft Brew Alliance,
Inc. against Craft Brew Alliance and the Company's Board of
Directors, for breaches of fiduciary duty as a result of the
Defendants' efforts to sell the Company to Anheuser-Busch
Companies, LLC and Barrel Subsidiary, Inc., as a result of an
unfair process for an unfair price.
The Plaintiff challenges and seeks to enjoin an upcoming
stockholder vote on the proposed all cash transaction valued at
approximately $321 million.
Pursuant to the terms of the definitive Agreement and Plan of
Merger, Craft Brew Alliance will become an indirect wholly-owned
subsidiary of Anheuser-Busch, and Craft Brew Alliance stockholders
will receive only $16.50 in cash for each share of Craft Brew
Alliance common stock they own. As a result of the Proposed
Transaction, the Plaintiff asserts he and other Craft Brew Alliance
stockholders will be frozen out of any future ownership interest in
the Corporation.
In addition, the Proposed Transaction is unfair and undervalued for
a number of reasons, the Plaintiff contends. Significantly, he
alleges, the Proxy describes an insufficient sales process in which
the Board rushed through an inadequate "sales process" in which the
only end goal was a sale to A-B, and in which no actual sales
process took place outside of addressing A-B's offer.
The Plaintiff contends that without accurate projection data
presented in the Proxy, he and other stockholders of Cray are
unable to properly evaluate the Company's true worth, the accuracy
of Morgan Stanley's financial analyses, or make an informed
decision whether to vote their Company stock in favor of the
Proposed Transaction. As such, he adds, the Board has breached
their fiduciary duties by failing to include such information in
the Proxy.
The Plaintiff has been a Craft Brew Alliance stockholder.
Craft Brew together with its subsidiaries, brews, brands, and
brings to market American craft beers.[BN]
The Plaintiff is represented by:
Roger M. Townsend, Esq.
BRESKIN JOHNSON & TOWNSEND, PLLC
1000 Second Avenue, Suite 3670
Seattle, WA 98104
Telephone: (206) 652-8660
Facsimile: (206) 652-8290
E-mail: rtownsend@bjtlegal.com
- and -
Marc L. Ackerman, Esq.
Ryan P. Cardona, Esq.
BRODSKY & SMITH, LLC
Two Bala Plaza, Suite 510
Bala Cynwyd, PA 19004
Telephone: (610) 667-6200
Facsimile: (610) 667-9029
CREDIT MANAGEMENT: Placeholder Class Cert. Bid Filed in "Kuchta"
----------------------------------------------------------------
In the class action lawsuit styled as ARNOLD KUCHTA, Individually
and on Behalf of All Others Similarly Situated, the Plaintiff, v.
CREDIT MANAGEMENT CONTROL, INC., the Defendant, Case No.
2:20-cv-00129-NJ (E.D. Wisc.), the Plaintiff filed a "placeholder"
motion for class certification in order to prevent against a
"buy-off" attempt, a tactic class-action Defendants sometimes use
to attempt to prevent a case from proceeding to a decision on class
certification by attempting to "moot" the named plaintiff's claims
by tendering the plaintiff individual (but not classwide) relief.
The Plaintiff asks the Court for an order to certify class, appoint
Plaintiff as the class representative, and appoint Plaintiff's
attorneys as class counsel.
In Campbell-Ewald Co. v. Gomez, 136 S. Ct. 663, 672 (2016), the
Supreme Court held "an unaccepted settlement offer or offer of
judgment does not moot a plaintiff's case," and "a would-be class
representative with a live claim of her own must be accorded a fair
opportunity to show that certification is warranted." The Sixth
Circuit applied Campbell-Ewald in an unreported opinion in Family
Health Chiropractic, Inc. v. MD On-Line Sols., Inc., No. 15-3508,
2016 WL 384823, at (6th Cir. Feb. 2, 2016).
In Wilson v. Gordon, F.3d 934, 949-50 (6th Cir. 2016), the Sixth
Circuit held that, even where "[the parties [did] not dispute that
all eleven named plaintiffs' individual claims became moot before
the district court certified the class," the "picking-off"
exception applied and allowed the named plaintiffs with moot
individual claims to pursue class certification, which would
"relate back" to the filing of the complaint, applying Deposit
Guar. Nat'l Bank v. Roper, 445 U.S. 326, 339 (1980). The Sixth
Circuit held this ruling was consistent with Campbell-Ewald, 136 S.
Ct. at 672, which refused to put defendants "in the driver's seat"
on class certification.[CC]
The Plaintiff is represented by:
John D. Blythin, Esq.
Mark A. Eldridge, Esq.
Jesse Fruchter, Esq.
Ben J. Slatky, Esq.
ADEMI & O'REILLY, LLP
3620 East Layton Avenue
Cudahy, WI 53110
Telephone: (414) 482-8000
Facsimile: (414) 482-8001
Email: jblythin@ademilaw.com
meldridge@ademilaw.com
jfruchter@ademilaw.com
bslatky@ademilaw.com
CRESTWOOD BEHAVIORAL: Faces Kamara Employment Suit in California
----------------------------------------------------------------
A class action lawsuit has been filed against Crestwood Behavioral
Health Inc. The case is captioned as Amadu Kamara, on behalf of All
Others Similarly Situated v. Crestwood Behavioral Health Inc., a
Delaware Corporation, Case No. 34-2020-00272635-CU-OE-GDS (Cal.
Super., Sacramento Cty., Jan 6, 2020).
The suit alleges violation of employment-related laws.
Crestwood Behavioral provides healthcare services.[BN]
The Plaintiff is represented by:
Kane Moon, Esq.
MOON & YANG, APC
1055 W 7th St., Suite 1880
Los Angeles, CA 90017-2529
Telephone: (213) 232-3128
Facsimile: (213) 232-3125
E-mail: kane.moon@moonyanglaw.com
CV SCIENCES: Nevada District Denies Bid to Dismiss Securities Suit
------------------------------------------------------------------
In the case, In Re: CV Sciences, Inc. Securities Litigation, Case
No. 2:18-cv-01602-JAD-BNW (D. Nev.), Judge Jennifer A. Dorsey of
the U.S. District Court for the District of Nevada (i) denied the
Defendants' motion to dismiss; (ii) granted in part and denied in
part the Defendants' request to strike certain allegations in Ina's
amended complaint; and (iii) granted in part and denied in part
Ina's motion to strike.
The case is a securities-fraud-class-action lawsuit against CV
Sciences and its current and former officers Michael Mona, Jr.,
Michael Mona, III, and Joseph D. Dowling. CV Sciences is a
life-science company that specializes in cannabidiols ("CBD"). CV
Sciences' pharmaceutical division developed a treatment utilizing
CBD for smokeless tobacco use and addiction. The company filed a
patent application for the product with the United States Patent
and Trade Office ("USPTO"), and the Defendants subsequently made
numerous public statements that the product was "patent-pending,"
"patent-protectable," and "proprietary." But CV Sciences did not
reveal that USPTO had rejected its patent application twice --
including a "Final Rejection" on grounds that the invention was
obvious. After non-party Citron Research shared news of the
rejections on Twitter, CV Sciences' stock price dropped 54.24%.
Lead Plaintiff Richard Ina and others filed suit, alleging that the
Defendants violated section 10(b) of the Securities Exchange Act of
1934, and Securities and Exchange Commission Rule 10b-5, by
describing the product as "patent-pending," "patent-protectable,"
and "proprietary" in the wake of the rejections. Ina also asserts
control-person liability against the individual Defendants under
section 20(b) of the Exchange Act.
The Defendants move to dismiss Ina's amended complaint on numerous
grounds. Ina moves to strike certain exhibits to the Defendants'
motion to dismiss. Ina moves to strike 18 of the 19 exhibits the
Defendants filed in support of their motion to dismiss, all
references to the exhibits in the motion to dismiss, and "unsworn
attorney testimony" in the motion to dismiss. The Defendants
respond that all of the challenged exhibits are subject to judicial
notice or incorporation by reference into Ina's amended complaint.
Exhibits A through D include: (1) a version of Citron Research's
Twitter page that does not include the Aug. 20, 2018, Tweet alleged
in the complaint and (2) Wikipedia and New York Times articles
about Citron Research's founder and Citron Research's web page,
which are linked from the Twitter page.
Judge Dorsey finds that incorporation by reference of the Twitter
page, which does not include the Tweet referenced in the complaint,
is not appropriate because it would not serve the doctrine's
purpose of ensuring appropriate context for documents alleged in
the complaint. She will not incorporate web pages and articles
linked from that Twitter page into the complaint because such an
extension of the doctrine would permit incorporation of, among
other things, the New York Times wedding section into a complaint
that quotes a New York Times article. And although these web pages
and articles may be judicially noticed to "indicate what was in the
public realm at the time," the Defendants use them in their motion
to dismiss to support factual assertions. So the Judge granted the
motion to strike Exhibits A to D and references to these exhibits
in the motion to dismiss.
Exhibit E is a USPTO web page showing the status of CV Sciences'
patent application. This document is incorporated by reference
because it provides necessary context to the amended complaint's
citations to the same website for selective events in the patent
application history. And this USPTO patent application web site is
also subject to judicial notice. So, the Judge denied the motion
to strike Exhibit E.
Exhibits F through R are press releases, a presentation, an
investor-call transcript, and documents filed with the SEC
containing the statements that Ina alleges were false and
misleading. These documents are incorporated by reference into the
complaint because they are the basis of Ina's claims. They do not
"merely create a defense" because, in addition to the cautionary
language cited by defendants in their safe harbor defense, they
contain the allegedly false or misleading statements at issue in
the case. So, the Judge denied the motion to strike Exhibits
F-R.23
As to Ina's remaining arguments, Judge Dorsey denied the motion to
strike "unsworn attorney testimony" in the motion to dismiss
because she finds that these "factual representations" consist of
argument or are based on exhibits to the motion to dismiss. And
Judge Dorsey denied Ina's request to convert the motion to dismiss
into a motion for summary judgment because courts must consider
documents subject to judicial notice or incorporation by reference
while assessing the sufficiency of securities-fraud allegations.
Turning to the Defendants' motion to dismiss, the Defendants argue
that their challenged statements were neither false nor material
because the patent application process often extends beyond a final
rejection by the USPTO. Judge Dorsey holds that it is enough that
Ina identifies the misleading statements with particularity and
alleges why they are misleading, meeting the requirements of Rule
9(b) and the PSLRA. The Judge therefore denied the motion to
dismiss on this ground.
Next, the Defendants argue that the truth-on-the-market defense
bars Ina's claims because the patent rejections were posted on the
USPTO's website. Ina responds that a reasonable investor would not
have known the information, the Defendants' misstatements
counterbalanced the information, and the stock drop after the
Citron Research Tweet undermines the defense. Judge Dorsey cannot
conclude at this time that the publication of the patent rejections
on the USPTO website were sufficient to counter-balance the
impression created by these representations. So, the Judge denied
the motion to dismiss on this ground.
The Defendants also content that Ina fails to adequately plead
scienter because his theory that the individual Defendants stood to
gain from a stock bonus is insufficient. Because the Plaintiff
alleges with requisite particularity that these statements were
materially misleading and, Judge Dorsey cannot determine otherwise
as a matter of law on a motion to dismiss, the Defendants'
knowledge of the rejections constitutes, at the very least,
deliberate recklessness as to whether the subsequent statements
would mislead investors. The Defendants' knowledge of the
rejections thus raises a strong inference of scienter on its own,
and it is at least as strong as any opposing inference that the
defendants lacked the requisite state of mind. So, Judge Dorsey
does not address the other allegations supporting scienter, and
denied the motion to dismiss on this ground.
Because the Tweet revealed the same information withheld from the
allegedly misleading statements, Ina sufficiently alleges that the
Defendants' fraudulent conduct proximately caused his loss. And
although the stock price rebounded in subsequent days, dismissal on
those grounds is not appropriate because other events could have
caused that recovery. So, the Judge denied the motion to dismiss
on loss-causation grounds.
The Defendants next argue that because CV Sciences' stock price
recovered after the initial fall, the class-action Plaintiffs who
purchased shares on or prior to Aug. 8, 2018, cannot establish loss
causation under a damages-limitation provision in the PSLRA. The
Judge holds that the parties have not identified any authority
applying this damages-limitation provision on a motion to dismiss a
Section 10(b) claim. Application of 15 U.S.C. Section 78u-4(e) is
more appropriate on a class-certification or summary-judgment
motion, when the Judge may have the benefit of expert testimony on
damages. So, the Judge denied without prejudice the motion to
dismiss on this ground.
Although the statements at issue were accompanied by appropriate
cautionary language, none of these statements were forward-looking.
The claims that the product was "patent-pending" refer to current
facts. The statements that the product was "patent-protectable"
and "proprietary" may appear forward-looking on their face, but Ina
alleges that the contingency these statements refer to was already
resolved when these statements were made—by the patent
rejections. So these statements also refer to current or past
events, and the Judge denied the motion to dismiss on this ground
as well.
The Defendants only move to dismiss on grounds that Ina failed to
allege a primary violation of federal securities law. Because she
finds that Ina sufficiently alleges a violation of federal
securities law, Judge Dorsey denied the motion to dismiss on this
ground as well.
Finally, in their motion to dismiss, the Defendants request to
strike allegations in the Plaintiff's amended complaint describing
Mona, Jr. as a "serial fraudster" and detailing Mona Jr.'s past
wrongdoing. Judge Dorsey finds that the allegations regarding the
denial of a gaming license and the fraudulent land-sale transaction
are immaterial because they have no important relationship to Ina's
claim for relief. However, the Judge finds that the Defendants
have not carried their burden to show that the prior
securities-fraud allegations could have no bearing on the subject
matter of this litigation. These allegations suggest that Mona Jr.
was aware of CV Sciences' disclosure obligations and his lack of
mistake in making misleading statements to investors, which are
relevant to scienter. And they mirror Ina's allegations of the
wrongdoing in this case, so they can hardly "detract from the
dignity of the court." So, the Judge granted the request to strike
paragraphs 98 and 99 of the amended complaint, but denied the
request with respect to paragraphs 100 through 102.
Accordingly, based on the foregoing, Judge Dorsey denied the
Defendants' motion to dismiss. The Judge granted in part and
denied in part the Dfendants' request to strike certain allegations
in Ina's amended complaint. Paragraphs 98 and 99 are deemed
stricken. The Judge granted in part and denied in part Ina's
motion to strike. Exhibits A through D are stricken.
A full-text copy of the Court's Dec. 10, 2019 Order is available at
https://is.gd/Cv9e0B from Leagle.com.
Richard Ina, as Trustee for The Ina Family Trust, Plaintiff,
represented by Dillon Hagius -- dhagius@faruqilaw.com -- Faruqi &
Faruqi LLP, pro hac vice, Martin Muckleroy, Richard Gonnello,
Faruqi & Faruqi LLP, Richard Gonnello -- rgonnello@faruqilaw.com
--
Faruqi & Faruqi LLP, pro hac vice & Sherief Morsy --
smorsy@faruqilaw.com -- Faruqi & Faruqi LLP, pro hac vice.
David Smith, Plaintiff, represented by Martin Muckleroy & Patrick
R. Leverty -- pat@levertylaw.com -- Leverty & Associates Chtd.
Kenneth Zelden, Plaintiff, represented by Andrew R. Muehlbauer,
Muehlbauer Law Office, Ltd.
Lenny Alvarado, Plaintiff, represented by Andrew R. Muehlbauer,
Muehlbauer Law Office, Ltd., pro hac vice.
CVI Investor Group, Movant, represented by Patrick R. Leverty,
Leverty & Associates Chtd.
CV Sciences, Inc., Michael Mona, Jr., Joseph D Dowling & Michael
Mona, III, Defendants, represented by Terry A. Coffing --
tcoffing@maclaw.com -- Marquis & Aurbach & Michael David Maupin --
mmaupin@maclaw.com -- c/o Marquis Aurbach Coffing.
Jerry Faulkner, Defendant, represented by Andrew R. Muehlbauer,
Muehlbauer Law Office, Ltd.
DCH HEALTH: Faces Class Action Over Ransomware Attack
-----------------------------------------------------
Courthouse News Service reported that a federal class action claims
that DCH Health System, of Tuscaloosa, failed to protect 32,000
patients' personal information from a ransomware attack.
A copy of the Complaint is available at:
https://is.gd/rIvSYf
DEPENDABLE HIGHWAY: Faces Hoff Employment Suit in California
------------------------------------------------------------
A class action lawsuit has been filed against Dependable Highway
Express Inc. The case is captioned as Randy L. Hoff, on behalf of
himself and all other similarly situated v. Dependable Highway
Express Inc. and Does 1-50, Case No. 34-2020-00272729-CU-OE-GDS
(Cal. Super., Sacramento Cty., Jan. 7, 2020).
The suit alleges violation of employment related laws.
Dependable Highway provides logistics services. The Company offers
less than truckload, harbor drayage, warehousing and distribution
harbor, container load, and transload services, as well as provides
international air and ocean freight forwarding.[BN]
The Plaintiff is represented by:
Mehrdad Bokhour, Esq.
BOKHOUR LAW GROUP, PC
1901 Avenue Of The Stars, Suite 450
Los Angeles, CA 90067-6006
Telephone: (310) 975-1493
Facsimile: (310) 300-1705
E-mail: mehrdad@bokhourlaw.com
DOLLAR TREE: Sells Almondmilk With Misleading Label, Powell Says
----------------------------------------------------------------
Lafremia Powell, individually and on behalf of all others similarly
situated v. Dollar Tree Stores, Inc., Case No. 1:20-cv-00734
(E.D.N.Y., Jan. 27, 2020), seeks damages under consumer protection
laws arising from the Defendant's misleading representations on its
almondmilk beverages, purporting to be flavored only with vanilla.
The relevant front label statements include "Almond," "Vanilla,"
"Almondmilk" and "Sweetened." The Plaintiff contends that the
representations are misleading because the Product does not contain
the amount, type, and proportion of vanilla relative to non-vanilla
flavor components which is expected based on the front label. The
Plaintiff avers that the Defendant's branding and packaging of the
Products are designed to--and do--deceive, mislead, and defraud
consumers.
The Defendant's false, deceptive, and misleading branding and
packaging of the Product has enabled the Defendant to sell more of
the Product and at higher prices per unit, than it would have in
the absence of this misconduct, resulting in additional profits at
the expense of consumers, the Plaintiff asserts. As a result of the
false and misleading labeling, the Product is sold at a premium
price, approximately no less than $1.00 per unit, excluding tax,
compared to other similar products represented in a non-misleading
way, says the complaint.
The Plaintiff purchased the Products for personal consumption
within this district.
Dollar Tree Stores, Inc., manufactures, distributes, markets,
labels and sells almondmilk beverages purporting to be flavored
only with vanilla under the Dollar Tree Store 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
Email: spencer@spencersheehan.com
DUN HUANG CORP: Underpays Waiters, Chen Suit Alleges
----------------------------------------------------
JINXIONG CHEN a/k/a Jason Chen; and CHAN YIN LAU, individually and
on behalf of all others similarly situated, Plaintiffs v. DUN HUANG
CORP. d/b/a Dun Huang; DH NEWLAND CORP. d/b/a Dun Huang; NEW YORK
DUN HUANG INC. d/b/a Dun Huang; LANZHOU BEEF NOODLE INC. d/b/a Dun
Huang; JOHN DOE CORP. d/b/a Dun Huang; and DUN HUANG NEWLAND CORP.
d/b/a Dung Huang and d/b/a Miss Noodle; SHIYANG LI; ZHONGQI BIAN;
HONG JI; SIWEN LIU; YANG LIU; and HAIJUN LU, Defendants, Case No.
1:19-cv-11883 (S.D.N.Y., Dec. 29, 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 Chen was employed by the Defendants as waiter.
Dun Huang Corp. d/b/a Dun Huang is engaged in the restaurant
business. [BN]
The Plaintiff is represented by:
John Troy, Esq.
TROY LAW, PLLC
41-25 Kissena Boulevard Suite 119
Flushing, NY 11355
Telephone: (718) 762-1324
EASTERN MUSHROOM: Bid to Dismiss Winn-Dixie Antitrust Suit Denied
-----------------------------------------------------------------
In the case, WINN-DIXIE STORES, INC., et al., Plaintiffs, v.
EASTERN MUSHROOM MARKETING COOPERATIVE, et al., Defendants, Civil
Action No. 15-6480 (E.D. Pa.), Judge Berle M. Schiller of the U.S.
District Court for the Eastern District of Pennsylvania (i) denied
Defendant-Franklin's motion to dismiss pursuant to Rule 12(b)(5)
and (ii) granted Plaintiff-Winn-Dixie's cross-motion for
enlargement of time to serve Franklin.
Franklin was a Connecticut company that once grew and sold
mushrooms. It once did business in Pennsylvania. Pursuant to
Pennsylvania's requirement that foreign companies designate an
in-state registered address, Franklin designated the corporate
service company "CT Corporation Philadelphia" as its in-state
address.
In 2006, Franklin ceased production of agaricus mushrooms and sold
its customer list. In 2008, Franklin sold its brand name. In
2010, it ceased all operation.
Since 2006, Franklin has been a defendant in a class action lawsuit
alleging that Eastern Mushroom Marketing Collective -- of which it
was once a member -- and various affiliated organizations conspired
to raise the price of agaricus mushrooms. Several plaintiffs also
filed their own antitrust lawsuits. The most recent of these
lawsuits -- the instant case -- was filed on Dec. 7, 2015.
On March 22, 2016, Winn-Dixie's process server attempted to serve
Franklin at CT Corp. in Harrisburg by handing process documents to
CT Corp. Senior Corporate Operations Specialist Bob Sersh. That
same day, CT Corp. forwarded the summons and complaint to Milton
Jacobson at the Connecticut Law firm of Brown & Jacobson, PC via
Federal Express 2-day service. On April 4, 2016, Michael D.
Colonese, an attorney at Brown & Jacobson, forwarded the materials
to Franklin's president Wilhem Meya via overnight delivery.
It was not the end of the matter, and Franklin would not enter an
appearance in the lawsuit for another three years. In the
meantime, the instant case was consolidated with the class action
and other individual actions for pre-trial purposes between April
12, 2017 and Sept. 29, 2018; Winn-Dixie filed its First Amended
Complaint -- again naming Franklin as a Defendant -- on Jan. 29,
2019; the Court granted in part and denied in part motions by
various Defendants to dismiss the complaint -- including dismissing
the complaint against seven Defendants due to improper service --
on April 8, 2019.
On April 10, 2019, chambers contacted Franklin's counsel by email
to request an entry of appearance. According to Franklin, it was
the first time James Rodgers, who represented Franklin in the other
antitrust cases, became aware of Winn-Dixie's complaint. Rodgers
entered his appearance on April 15, 2019. Franklin answered
Winn-Dixie's complaint on July 12, 2019 and filed the instant
motion on Aug. 8, 2019.
Now before the Court is Franklin's motion to dismiss pursuant to
Rule 12(b)(5) and the Plaintiff's cross-motion for enlargement of
time to serve Franklin. The crux of Franklin's argument is that
Winn-Dixie did not perfect service when it served process at CT
Corp. in Harrisburg, therefore Franklin has never actually been
served in the lawsuit. Winn-Dixie counters that Franklin waved the
argument, and that Franklin's motion is untimely. Judge Schiller
finds neither of Franklin's argument availing.
First, Winn-Dixie argues that, under Rule 12(h), Franklin waived
the argument that service was improper because CT Corp. was not
authorized to accept process on Franklin's behalf. In Franklin's
answer to Winn-Dixie's amended complaint, Franklin argued that it
had been improperly served, because its in-state agent was CT Corp.
in Philadelphia rather than CT Corp. in Harrisburg. It did not,
however, argue that service was improper because CT Corp. was not
authorized to accept process on Franklin's behalf.
The Judge disagrees with Winn-Dixie's reading of Rule 12(h). Under
Rule 12(h), waiver is triggered by a party's failing to include a
defense listed in rule 12(b)(2)-(5) in a responsive pleading. He
finds that Franklin did not waive its defense of improper service
by failing to include the precise theory of improper service it
would ultimately use in the instant motion. The fact that Franklin
raised a defense of improper service in its answer is sufficient to
avoid waiver.
Second, Winn-Dixie argues that Franklin's objection to service of
process is untimely because it filed the motion after first filing
its answer to Winn-Dixie's complaint. Reading Rule 12 as
Winn-Dixie does would require a party to raise a defense under Rule
12 via pre-answer motion, as failing to do so would render any
subsequent advocacy of the defense untimely. It would contradict
the permissive language of Rule 12(b), and thus the Judge declines
to read Rule 12(b) in such fashion. As a result, he will consider
the merits of Franklin's motion.
Franklin moves the Court to dismiss Winn-Dixie's complaint for
failure to effectuate service in the time allotted by Rule 4.
Winn-Dixie served Franklin at CT Corp. in Harrisburg. There is no
question such service was not made on an executive officer or
person in charge of any regular place of Franklin's business -- and
thus the only question is whether CT Corp. was authorized in
writing to receive service on Franklin's behalf. Winn-Dixie has
presented no evidence that CT Corp. was authorized in writing to
accept service of process for Franklin. Because Winn-Dixie bears
the burden of proving that it properly served Franklin and has
presented no evidence upon which it could carry that burden, the
Judge finds that Winn-Dixie did not properly serve Franklin on
March 22, 2016. As a result, Franklin was not served within the
time allotted by Rule 4.
Having found that Franklin was not served in the time allotted by
Rule 4, the Court can either give Winn-Dixie an extension of time
to serve Franklin or, if an extension is unwarranted, dismiss the
complaint against Franklin. Judge Schiller finds that an extension
is appropriate.
First, Franklin was not prejudiced by Winn-Dixie's improper
service, rules the Court. Franklin received Winn-Dixie's process
documents about two weeks after process was "served" in Harrisburg
and the Court is unwilling to hold Winn-Dixie responsible for any
prejudice to Franklin stemming from its inactivity after that
point. Second Franklin's objection to Winn-Dixie's service of
process comes more than three years after Franklin was first given
notice of the lawsuit. In light of this, Judge Schiller is wary of
dismissing the Complaint, as it would contravene the general
principle that defendants wishing to object to service of process
should do so promptly. Third, Winn-Dixie's failure to serve
Franklin was clearly the result of its mistaken belief that
Pennsylvania law permitted plaintiffs to serve foreign corporations
at their registered Pennsylvania address.
These factors do not excuse Winn-Dixie's failure to correctly serve
Franklin, and the result could well be different had service never
reached Franklin, or had Franklin made the instant motion in 2016.
However, in the present case, Winn-Dixie's lack of bad faith or
overt recklessness, combined with a lack of prejudice to Franklin,
tips the scale in favor of granting a discretionary extension of
time in which to serve Franklin.
For the foregoing reasons, Judge Schiller (i) denied Franklin's
motion to dismiss, and (ii) granted Winn-Dixie's cross-motion for
an extension of time to serve Franklin. An Order consistent with
this Memorandum will be documented separately.
A full-text copy of the Court's Jan. 8, 2020 Memorandum is
available at https://is.gd/AHb6CA from Leagle.com.
WINN-DIXIE STORES, INC. & BI-LO HOLDINGS, LLC, Plaintiffs,
represented by KRISHNA B. NARINE -- knarine@lauletta.com --
LAULETTA BIRNBAUM & PATRICK J. AHERN --
patrick.ahern@ahernandassociatespc.com -- AHERN & ASSOCIATES PC.
EASTERN MUSHROOM MARKETING COOPERATIVE, INC., BROWNSTONE MUSHROOM
FARMS, INC., TO-JO FRESH MUSHROOMS, INC., COUNTRY FRESH MUSHROOM
CO., FOREST MUSHROOM INC., GINO GASPARI & SONS, INC., GASPARI BROS.
INC., KAOLIN MUSHROOM FARMS, INC., SOUTH MILL MUSHROOM SALES, INC.,
MODERN MUSHROOM FARMS, INC., SHER-ROCKEE MUSHROOM FARM, C & C
CARRIAGE MUSHROOM CO., OAKSHIRE MUSHROOM FARM, INC., PHILLIPS
MUSHROOM FARMS, INC., LOUIS M. MARSON, JR., INC., MONTEREY
MUSHROOMS, INC., JOHN PIA & MICHAEL PIA, Defendants, represented by
WILLIAM A. DESTEFANO -- wad@stevenslee.com -- STEVENS & LEE.
CARDILE MUSHROOMS, INC., Defendant, represented by DANA A. FELMLEE
-- dfelmlee@mccarthypc.com -- MCCARTHY WEIDLER PC & GARY J.
MCCARTHY -- gmccarthy@mccarthypc.com -- MCCARTHY WEIDLER PC.
FRANKLIN FARMS, INC., Defendant, represented by JAMES J. RODGERS --
jrodgers@dilworthlaw.com -- DILWORTH PAXSON.
GIORGI MUSHROOM COMPANY & GIORGIO FOODS, INC., Defendants,
represented by JOSHUA SARNER, SARNER & ASSOCIATES, MATTHEW C.
BRUNELLI, STEVENS & LEE, TERRI A. PAWELSKI, STEVENS & LEE & WILLIAM
A. DESTEFANO, STEVENS & LEE.
MARIO CUTONE MUSHROOM CO., INC., Defendant, represented by JOEL I.
FISHBEIN, LITCHFIELD CAVO LLP.
M.D. BASCIANI & SONS, INC., Defendant, represented by DONNA M.
ALBANI, LAW OFFICES OF DONNA M. ALBANI & THOMAS K. SCHINDLER,
SCHINDLER LAW GROUP LLC.
MUSHROOM ALLIANCE, INC., Defendant, represented by MATTHEW J.
BORGER, KLEHR HARRISON HARVEY BRANZBURG L.L.P.
CREEKSIDE MUSHROOMS LTD., Defendant, represented by BARBARA T.
SICALIDES, PEPPER HAMILTON LLP.
J-M FARMS, INC., Defendant, represented by JASON S. TAYLOR, CONNER
& WINTERS LLP & FRANCESCO P. TRAPANI, Kreher & Trapani LLP.
UNITED MUSHROOM FARMS COOPERATIVE, INC., Defendant, represented by
JANE M. SHIELDS, MACELREE HARVEY, LTD. & WILLIAM J. GALLAGHER, MAC
ELREE, HARVEY, LTD.
ENVIRONMENTAL SERVICE: Fails to Pay Overtime Wages, Cabrito Says
----------------------------------------------------------------
ROMULO CABRITO, individually, and on behalf of all others similarly
situated v. ENVIRONMENTAL SERVICE CONCEPTS, LLC, a limited
liability company; and DOES 1 through 10, inclusive, Case No.
CGC-20-582061 (Cal. Super., San Francisco Cty., Jan. 7, 2020),
alleges that the Defendants violated the California Labor Code by
failing to pay minimum and straight time wages, to pay overtime
compensation, and to provide meal periods.
According to the complaint, the Defendants classified the Plaintiff
as non-exempt and typically scheduled Plaintiff to work 5 days per
workweek, and in excess of hours each workday. Throughout the
statutory period, the Defendants failed to pay the Plaintiff for
all hours worked, including minimum wages, straight time wages, and
overtime wages, says the complaint.
The Plaintiff is a California resident that worked for the
Defendants in the State of California as a janitorial employee from
October 2005 to July 2019.
ESC offers building and facility services.[BN]
The Plaintiff is represented by:
Kane Moon, Esq.
Allen Feghali, Esq.
MOON & YANG, APC
1055 W. Seventh St., Suite 1880
Los Angeles, CA 90017
Telephone: (213) 232 3128
Facsimile: (213) 232 3125
E-mail: kane.moon@moonyanglaw.com
allen.feghali@moonyanglaw.com
FAB4 LLC: Fails to Pay for All Overtime Hours, Haghoubian Claims
----------------------------------------------------------------
ARGIN HAGHOUBIAN, an individual, on behalf of himself and all
aggrieved employees v. FAB4, LLC dba RUSSELL WESTBROOK CDJR, a
Limited Liability Corporation, and DOES 1 -50, inclusive, Case No.
20STCV00627 (Cal. Super., Los Angeles Cty., Jan. 6, 2020), seeks
damages and other relief arising from the Defendants' violations of
the California Labor Code Private Attorneys General Act of 2004,
including failure to properly pay for all overtime hours worked.
The Plaintiff contends that the Defendants failed to comply with
California Labor Code requirements due to erroneous, willful and
intentional employment practices and policies, including failing to
properly pay for all overtime hours worked, failure to timely pay
wages when owed, including upon separation, failure to provide
accurate paystubs and maintain accurate records, failure to provide
required California sick days and notice thereof, and failure to
permit required meal and rest breaks.
The Plaintiff was employed as an hourly, nonexempt employee of the
Defendants as a car salesperson until July 5, 2019.
FAB4 offers a range of new & used cars, parts, and service.[BN]
The Plaintiff is represented by:
Nazo Koulloukian, Esq.
Hilary Silvia, Esq.
KOUL LAW FIRM
3435 Wilshire Blvd., Suite 1710
Los Angeles, CA 90010
Telephone: (213) 761-5484
Facsimile: (818) 561-3938
E-mail: nazo@koulllaw.com
hilarv@koullaw.com
- and -
Sahag Majarian, II, Esq.
LAW OFFICES OF SAHAG MAJARIAN II
18250 Ventura Blvd.,
Tarzana, CA 91356
Telephone: (818) 609-0807
Facsimile: (818) 609-0892
FEDEX CORP: Travers Seeks Pay for Short-Term Military Leave
-----------------------------------------------------------
GERARD TRAVERS, individually and on behalf of all others similarly
situated, Plaintiff v. FEDEX CORPORATION, Defendant, Case No.
2:19-cv-06106-MAK (E.D. Pa., Dec. 24, 2019) is an action against
the Defendant for failure to pay the Plaintiff with paid leave
during periods of short-term military leave.
The Plaintiff was employed by the Defendant as a courier.
FedEx Corp. delivers packages and freight to multiple countries and
territories through an integrated global network. The Company
provides worldwide express delivery, ground small-parcel delivery,
less-than-truckload freight delivery, supply chain management
services, customs brokerage services, and trade facilitation and
electronic commerce solutions. [BN]
The Plaintiff is represented by:
Adam Harrison Garner, Esq.
THE GARNER FIRM LTD.
1515 Market St. Suite 1200
Philadelphia, PA 19102
Telephone: (215) 645-5955
Facsimile: (215) 645-5960
E-mail: adam@garnerltd.com
GENERAL MOTORS: Class Cert. Bid in Monteville Sloan Case Shelved
----------------------------------------------------------------
In the class action lawsuit styled as Monteville Sloan, JR v.
General Motors LLC, Case No. 3:16-cv-07244-EMC (N.D. Cal., Jan. 21,
2020), the Hon. Judge Edward M. Chen entered an order taking the
motion to certify class under submission.
According to the civil minutes,the proceedings for motion for
partial summary judgment and motion to exclude certain testimony of
Plaintiffs' expert witness Jeffrey K. Ball were held. Proceedings
for status conference was not held.
General Motors is an American multinational corporation
headquartered in Detroit that designs, manufactures, markets, and
distributes vehicles and vehicle parts, and sells financial
services, with global headquarters in Detroit's Renaissance
Center.[CC]
Attorneys for the Plaintiff are:
John Tangren, Esq.
Daniel Ferri, Esq.
Adam Levitt, Esq.
Clay Barnett, Esq.
James Mitchell Williams, Esq.
Jennie Lee Anderson, Esq.
Wilson Daniel Miles III, Esq.
DICELLO LEVITT GUTZLER
10 North Dearborn Street Eleventh Floor
Chicago, IL 60602
Telephone: 312 214 7900
Attorneys for Defendant are:
April Ross, Esq.
Kathleen Sooy, Esq.
Gregory Oxford, Esq.
CROWELL MORING
1001 Pennsylvania Avenue NW
Washington, DC 20004-2595
Telephone: 202 624 2687
E-mail: aross@crowell.com
GREAT LAKES ASSEMBLIES: Underpays Assembly Workers, Butcher Claims
------------------------------------------------------------------
THERESA BUTCHER, individually and on behalf of all others similarly
situated, Plaintiff v. GREAT LAKES ASSEMBLIES, LLC, Defendant, Case
No. 2:19-cv-05647-EAS-KAJ (S.D. Ohio, Dec. 30, 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 Butcher was employed by the Defendant as an assembly
worker.
Great Lakes Assemblies, LLC manufactures automobiles parts. The
Company offers automobile center console modules, tire and wheel
assemblies, powertrain accessory modules, chassis, and engine
components. Great Lakes Assemblies serves customers in the United
States. [BN]
The Plaintiff is represented by:
Lori M. Griffin, Esq.
Anthony J. Lazzaro, Esq.
Chastity L. Christy, Esq.
THE LAZZARO LAW FIRM, LLC
614 W. Superior Avenue
Cleveland, OH 44113
Telephone: (216) 696-5000
Facsimile: (216) 696-7005
E-mail: lori@lazzarolawfirm.com
chastity@lazzarolawfirm.com
anthony@lazzarolawfirm.com
GUIDANT GLOBAL: Smith Seeks to Certify FLSA Class of Workers
------------------------------------------------------------
In the class action lawsuit styled as CHADWICK SMITH, Individually
and for Others Similarly Situated v. GUIDANT GLOBAL, INC. and
GUIDANT GROUP, INC., Case No. 2:19-cv-12318-GAD-APP (E.D. Mich.),
the Plaintiff asks the Court for an order:
1. granting conditional certification of and authorizing notice
be sent to:
"all workers covered by a Guidant Staffing Company Agreement
who were paid straight time for overtime within the past 3
years (Putative Class Members)";
2. approving the Notice and Consent forms;
3. authorizing the mailing and emailing of notice, along with a
reminder notice;
4. authorizing Class Counsel to contact the Putative Class
Members by telephone if their mailed or emailed Notice and
Consent forms return undeliverable;
5. directing Guidant to produce to Class Counsel the contact
information for each of the Putative Class Members within 10
days of the Court's order; and
6. authorizing 60-day notice period for the Putative Class
Members to join the case.
The Plaintiff contends that Guidant paid the Putative Class Members
the same hourly rate for all hours worked (including those in
excess of 40 in a workweek) and deprived them of the "time and a
half" overtime premium required by the Fair Labor Standards Act.
Guidant provides staffing services. The company provides
engineering, information technology, and administrative staffing,
as well as offers related outsourcing services and solutions.[CC]
The Plaintiff is represented by:
Taylor A. Jones, Esq.
Andrew W. Dunlap
JOSEPHSON DUNLAP LLP
11 Greenway Plaza, Suite 3050
Houston, TX 77046
Telephone: 713-352-1100
Facsimile: 713-352-3300
E-mail: adunlap@mybackwages.com
tjones@mybackwages.com
- and -
Richard J. (Rex) Burch
BRUCKNER BURCH PLLC
8 Greenway Plaza, Suite 1500
Houston, TX 77046
Telephone: 713-877-8788
Facsimile: 713-877-8065
E-mail: rburch@brucknerburch.com
- and -
Jennifer L. McManus, Esq.
FAGAN MCMANUS, PC
25892 Woodward Avenue
Royal Oak, MI 58067-0910
Telephone: 248-542-6300
E-mail: jmcmanus@faganlawpc.com
HINDS COUNTY SD: Clincy FLSA Suit Removed to S.D. Mississippi
-------------------------------------------------------------
The case titled Tondee Clincy and others similarly situated v.
Hinds County School District, Case No. MS-19-00717 (Filed Oct. 21,
2019), was removed from the Mississippi Circuit Court, Hinds
County, to the U.S. District Court for the Southern District of
Mississippi on Jan. 3, 2020.
The Southern District of Mississippi assigned Case No.
3:20-cv-00004-HTW-LRA to the proceeding. The case is assigned to
the Hon. Judge Henry T. Wingate.
The case is an overtime collective action under the Fair Labor
Standards Act. The Plaintiff contends that she and others like her
were suffered or permitted to work off the clock, and were
routinely deprived of pay to which they were entitled, including
overtime.
Tondee Clincy is an adult resident of Mississippi, and a former
employee of HCSD. She did bookkeeping.
Hinds County School District is a public school district organized
under the Mississippi Uniform School Law.[BN]
The Plaintiff is represented by:
Joel F. Dillard, Esq.
JOEL F. DILLARD, PA
775 N. Congress St.
Jackson MS 39202
Telephone: 601 487 7369
E-mail: joel@joeldillard.com
IOWA: Beverages Div. Sued for Illegally Raising Liquor Prices
-------------------------------------------------------------
Rox Laird, writing for Courthouse News Service, reported that a
convenience store claims in a putative class action lawsuit filed
on Dec. 20 that Iowa's state-owned alcoholic beverages distributor
is illegally raising liquor prices charged to retailers.
Quick Shop Foods in Ottumwa, Iowa, claims in the complaint filed in
Polk County District Court that the Alcoholic Beverages Division of
the Iowa Department of Commerce -- the state's exclusive wholesaler
and distributor of liquor to retailers -- illegally overcharged the
convenience store and other similar retailers that sell alcohol for
off-premises consumption in unopened containers.
The convenience store notes in its suit that the state legislature
sought to avoid abuse of the Alcoholic Beverages Division's
monopoly by setting a cap in state law on how much the division can
mark up liquor prices.
The law states that liquor sold by the division may be sold at a
markup of up to 50% of the wholesale price paid by the division to
liquor makers. The law allows the division to increase the markup
on certain kinds of liquor more but the overall return on all sales
may not exceed a 50% markup of the wholesale price.
"However, the [Alcoholic Beverages Division] has illegally charged
plaintiffs and other similarly situated retailers, proprietors, and
all Class E liquor license holders in excess of that statutory cap
on the price of alcoholic liquor," the store states in its
complaint.
A similar allegation was lodged against the Alcoholic Beverages
Division in a civil suit filed Dec. 5 by Todd P. Halbur, a former
controller and accountant for the division, who alleged he was
wrongfully terminated after he reported that the division had
excessively and illegally marked up liquor prices. He said in the
suit he refused to sign off on payment to a website developer
without first going through a competitive bidding process as
required by Iowa law.
The Quick Shop Foods lawsuit does not state how much the division
is overcharging for liquor, only that it exceeded the cap set in
state law "over the course of many years."
The complaint was filed by Four M Inc. and Steven Mark Ebelsheiser,
an owner and officer of that corporation, doing business as Quick
Shop Foods. The plaintiffs are represented by Stuart Higgins and
Justin Swaim of West Des Moines, Iowa.
In response to a request for comment, Swaim said: "We have nothing
to add to the statements in the petition. Our witness will do his
talking in court."
A spokesman for the Alcoholic Beverages Division said division
officials "are consulting with legal counsel and have no further
comment at this time."
The plaintiffs seek class action status and claim to be
representing "several hundreds of class members," the exact number
and identities of whom will be revealed during the discovery phase
of the litigation.
Plaintiffs are asking the court to order the division to reimburse
class members for the excessive markup.
A copy of the Class Action Petition is available at:
https://is.gd/VsrPBf
JENNY JN NAILS: Underpays Nail Salon Workers, Chang Suit Alleges
----------------------------------------------------------------
HSIN HUANG CHANG, individually and on behalf of all others
similarly situated, Plaintiff v. JENNY JN NAILS INC. d/b/a Sarah
Nail; BURTIS NAIL INC. d/b/a Burtis Nail; JENNY GJ INC. d/b/a Nail
by Jenny; DAE EUN LEE a/k/a Sarah Lee, Defendants, Case No.
3:19-cv-02024 (D. Conn., Dec. 31, 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 Chang was employed by the Defendants as nail salon
worker.
Jenny JN Nails Inc. d/b/a Sarah Nail operates as a nail salon. The
Company provides nail grooming, painting and acrylic nail services.
[BN]
The Plaintiff is represented by:
John Troy, Esq.
TROY LAW, PLLC
41-25 Kissena Boulevard Suite 119
Flushing, NY 11355
Telephone: (718) 762-1324
JEWELRY EXPRESS: Faces Cooks ADA Class Suit in C.D. California
--------------------------------------------------------------
A class action lawsuit has been filed against Jewelry Express, Inc.
The case is captioned as Richard Cooks, on behalf of himself and
all others similarly situated v. Jewelry Express, Inc., Case No.
2:20-cv-00190-PSG-E (C.D. Cal., Jan. 7, 2020).
The case is assigned to the Hon. Judge Philip S. Gutierrez.
The suit alleges violation of Americans with Disabilities Act.
Jewelry Express operates as a jewelry store. The company offers
rings, earrings, bracelets, necklaces, pendants, and watches. Kevin
Jewelers serves customers in the State of California.[BN]
The Plaintiff is represented by:
Amanda F. Benedict, Esq.
LAW OFFICE OF AMANDA BENEDICT
7710 Hazard Center Drive, Suite E104
San Diego, CA 92108
Telephone: (760) 822-1911
Facsimile: (760) 452-7560
E-mail: amanda@amandabenedict.com
JFAT LLC: Weatherly Seeks Penalties Under PAGA Over Untimely Pay
----------------------------------------------------------------
SCOTT WEATHERLY, individually, and on behalf of all others
similarly aggrieved v. JFAT, LLC DBA JIMMY'S FAMOUS AMERICAN
TAVERN, a California limited liability company; JFAT BREA, LLC, a
California limited liability company; JFAT DANA POINT, LLC, a
California limited liability company; JFAT SANTA MONICA, LLC, a
California limited liability company; JFAT TOPANGA, LLC, a
California limited liability company; JFAT SAN DIEGO, a business
entity unknown; and DOES 1 through 100, inclusive, Case No.
20STCV00736 (Cal. Super., Jan. 6, 2020), alleges that Defendants
violated the Private Attorneys General Act of 2004, California
Labor Code.
The case is an enforcement action seeking to recover civil
penalties and any other available relief on behalf of the
Plaintiff, the State of California, and other current and former
employees, who worked for the Defendants in California as
non-exempt, hourly employees and who received at least one wage
statement during their employment.
The Plaintiff contends that the Defendants knew or should have
known that he and other nonparty Aggrieved Employees were entitled
to timely payment of wages during their employment. In violation of
the California Labor Code, the Defendants did not pay them all
wages, including overtime wages, minimum wages, gratuities, and
meal and rest period premium wages, within permissible time
periods, he adds.
The Defendants employed Mr. Weatherly as an hourly-paid,
nonexempt restaurant employee from July 2019 through October 1,
2019, in the positions of dishwasher, runner, and busser.
JFAT is in restaurant, bar and catering services business.[BN]
The Plaintiff is represented by:
Carney R. Shegerian, Esq.
Anthony Nguyen, Esq.
Cheryl A. Kenner, Esq.
SHEGERIAN & ASSOCIATES, INC.
145 South Spring Street, Suite 400
Los Angeles, CA 90012
Telephone: (310) 860 0770
Facsimile: (310) 860 0771
E-mail: CShegerian@Shegerianlaw.com
ANguyen@Shegerianlaw.com
CKenner@Shegerianlaw.com
JOHNNY WAS LLC: Fails to Pay Proper Wages, Campos Claims
--------------------------------------------------------
CHARLIE CAMPOS, individually and on behalf of all others similarly
situated, Plaintiff v. JOHNNY WAS, LLC, Defendant, Case No.
19STCV46783 (Cal. Super., Los Angeles Cty., Dec. 27, 2019) is an
action against the Defendants for failure to pay minimum wages,
overtime compensation, authorize and permit meal and rest periods,
provide accurate wage statements, and reimburse necessary business
expenses.
The Plaintiff Campos was employed by the Defendant as hourly paid,
non-exempt employee.
Johnny Was, LLC is engaged in the business of wholesale
distribution of clothing and accessories. [BN]
The Plaintiff is represented by:
Paul K. Haines, Esq,
Fletcher W. Schmidt, Esq.
Andrew J. Rowbotham, Esq.
Matthew K. Moen, Esq,
HAINES LAW GROUP, APC
222 N. Sepulveda Blvd., Suite 1550
El Segundo, CA 90245
Telephone: (424) 292-2350
Facsimile: (424) 292-2355
E-mail: phaines@haineslawgroup.com
fschmidt@haineslawgroup.com
arowbotham@haineslawgroup.com
mmoen@haineslawgroup.com
JUUL LABS: Breaches Duty to Minority Stockholders, Grove Claims
---------------------------------------------------------------
DANIEL GROVE, on behalf of himself and all others similarly
situated and derivatively on behalf of JUUL LABS, INC. v. ADAM
BOWEN, JAMES MONSEES, NICHOLAS J. PRITZKER, K.C. CROSTHWAITE, GUY
CARTWRIGHT, JARED FIX, GERALD F. MASOUDI, KEVIN BURNS, TIMOTHY
DANAHER, and DOES 1-18, and JUUL LABS, INC., a Delaware
corporation, Case No. CGC-20-582059 (Cal. Super., San Francisco
Cty., Jan, 7, 2020), is brought on behalf of the minority
stockholders of JUUL against it and its Board of Directors for
breach of fiduciary duty, aiding and abetting breach of fiduciary
duty, violation of California Corp. Code, unjust enrichment, abuse
of control, and declaratory and injunctive relief.
The Plaintiff contends that the Individual Defendants have all
breached their duties of good faith, candor, and loyalty by failing
to provide any information to minority shareholders, including
failing to hold annual meetings of shareholders, failing to provide
annual reports to minority shareholders, and failing to provide any
other financial information about the Company to minority
shareholders.
The Defendants, in stark contrast, have unfettered information
about the Company and its financial condition, the Plaintiff avers.
The Plaintiff adds that Defendants Bowen and Monsees are using
their control of the Company to cause the Board to rubber-stamp
their self-dealing conduct.
In addition to directly harming him and the Class, the Defendants'
misconduct has also harmed JUUL, the Plaintiff alleges. He also
alleges that the Defendants used their control of JUUL to pay
themselves huge bonuses when Altria made its investment in the
Company in 2018, which cost the Company lost opportunities from
investing the significant capital in higher and better uses, which
would have earned a return on investment.
JUUL designs, manufacturers, and markets electronic cigarettes and
vaping products. Company was spun off from a vaping startup called
Pax Labs in 2017. The Individual Defendants are officers and
directors of the company. The JUUL device, which resembles a USB
flash drive, delivers a powerful dose of nicotine in a salt
solution that smokers say closely mimics the feeling of inhaling
cigarettes.[BN]
The Plaintiff is represented by:
Francis A. Bottini, Jr., Esq.
Yury A. Kolesnikov, Esq.
BOTTINI & BOTTINI, INC.
7817 Ivanhoe Avenue, Suite 102
La Jolla, CA 92037
Telephone: (858) 914 2001
Facsimile: (858) 914 2002
KALISPELL REGIONAL: Faces Data Breach Class Action
--------------------------------------------------
Courthouse News Service reported that the personal information of
130,000 patients of Kalispell Regional Healthcare in Montana was
exposed in a cyberattack, a federal class action claims.
A copy of the Complaint is available at:
https://is.gd/dm6O0O
KANSAS: Bids for New Class Counsel Appointment in Porter Denied
---------------------------------------------------------------
In the case, THOMAS H. PORTER, et al., Plaintiffs, v. HONORABLE
BILL GRAVES, et al., Defendants, Case No. 77-3045-SAC (D. Kan.),
Judge Sam A. Crow of the U.S. District Court for the District of
Kansas denied (i) the motion and amended motion of Artis Swafford
for appointment of new counsel to represent the class of the
Plaintiffs, and (ii) the motions of Reginald D. Stewart, D'Andre
Williams and Daniel P. Parker for the same relief.
The class action challenged the conditions of confinement in the
Kansas prison system. The case was closed upon the agreement of
the parties on Oct. 22, 1996.
The Movants are not listed as the class representatives and it
appears from KDOC records that Mr. Williams and Mr. Parker were not
the class members at the time the case was closed. But, assuming
that they may request new counsel on behalf of the class, their
motions will be denied.
The Movants contend that conditions in some facilities in the
Kansas prison system are so deficient that it surpasses the agreed
requirements for reopening the case when it was closed. That
agreement was more than 23 years ago. Since then, efforts to
intervene and reopen the case have been rejected in part because
of: the time which has passed since the case was closed; the
enactment of the Prison Litigation Reform Act ("PLRA"); the changes
which have occurred in the administration and operation of the
Kansas prison system; and the opportunity to raise a claim of
unconstitutional conditions of confinement in new litigation.
The Movants contend that the counsel of record have engaged in
professional malpractice and misconduct because they have
discouraged efforts to reopen the case.
Judge Crow disagrees. The PLRA provides at Section 3626(b)(2) that
a defendant in a prison conditions action will be entitled to the
immediate termination of any prospective relief if the relief was
approved or granted in the absence of a finding by the court that
the relief is narrowly drawn, extends no further than necessary to
correct the violation of the Federal right, and is the least
intrusive means necessary to correct the violation of the Federal
right. These findings were not made as part of the consent decrees
in the instant case or any order approving or amending the consent
decrees. Therefore, if the case were reopened, the Defendants
would be entitled to immediately terminate the prison conditions
provisions of the consent decrees.
Under the circumstances, the Judge holds that it is reasonable for
the counsel to advise against attempting to reopen the case for the
purpose of enforcing the consent decree conditions. In determining
whether to appoint the counsel, a district court should consider
the merits of the litigant's claims, the litigant's ability to
present his claims, and the complexity of the legal issues raised
by the claims. The "merits" of the Movants' claims do not appear
to warrant the appointment of the new counsel. For this and the
other reasons relied upon previously in orders which rejected the
reopening of the case, Judge Crow denied the motions and amended
motion for new counsel.
A full-text copy of the Court's Dec. 13, 2019 Order is available at
https://is.gd/SIqI1q from Leagle.com.
Leslie Keith Kimball, Plaintiff, represented by Dwight A. Corrin,
Roger M. Theis, Hinkle Law Firm LLC, Stephen W. Kessler & William
J. Rich -- bill.rich@washburn.edu -- Washburn University School of
Law.
Rickey Ray Redford, Robert (nmi) DeMass, Thomas H. Porter, Dennis
(nmi) House, Robert Francis Smith, Jr., Lyle C. Sanders, Donald E.
Alexander, Anthony R. Palocioz & Joseph F. Edwards, Plaintiffs,
represented by Dwight A. Corrin, Stephen W. Kessler & William J.
Rich, Washburn University School of Law.
Raymond Roberts, Defendant, represented by Charles E. Simmons,
Kansas Department of Corrections & Whitney L. Casement --
wcasement@gseplaw.com -- Goodell, Stratton, Edmonds & Palmer, LLP.
Thomas Odell Kelly, Movant, pro se.
Kenneth Jackson, Movant, pro se.
Kenneth D. Leek, Movant, pro se.
Artis Swafford, Movant, pro se.
Reginald D. Stewart, Movant, pro se.
Charles E. Simmons, Defendant, represented by Timothy G. Madden.
Bill Graves, Defendant, represented by Lawrence J. Logback --
llogback@slln.com -- Simpson, Logback, Lynch, Norris, PA, Timothy
G. Madden & Whitney L. Casement -- wcasement@gseplaw.com --
Goodell, Stratton, Edmonds & Palmer, LLP.
KOHL'S DEPARTMENT: Brown-Henry Sues Over Unwanted Telephone Calls
-----------------------------------------------------------------
PATRICIA BROWN-HENRY, individually and on behalf of all others
similarly situated v. KOHL'S DEPARTMENT STORES, INC., Case No.
1:20-cv-00122 (N.D. Ill., Jan. 7, 2020), alleges that the Defendant
promotes and markets its merchandise, in part, by placing
unsolicited telephone calls to cellular phone users, in violation
of the Telephone Consumer Protection Act.
The Plaintiff contends that for approximately 5-6 months, KDS
and/or its agents called her on her cellular telephone using an
autodialer without her consent. She adds that KDS continued to call
her after she told its agents they were calling the wrong number
and asked them to stop calling.
The Plaintiff brings this action for injunctive relief and
statutory damages for the Defendant's violations of the TCPA.
KDS and its wholly owned subsidiaries operate 1,159 Kohl's retail
stores across the country. At these stores, KDS sells moderately
priced clothing, footwear and accessories for women, men and
children; soft home products such as sheets and pillows; and
housewares.[BN]
The Plaintiff is represented by:
Carl V. Malmstrom, Esq.
WOLF HALDENSTEIN ADLER FREEMAN & HERZ LLC
111 W. Jackson Street, Suite 1700
Chicago, IL 60604
Telephone: (312) 391-5059
Facsimile: (212) 545-4653
E-mail: malmstrom@whafh.com
- and -
Joel D. Smith, Esq.
BURSOR & FISHER, P.A.
1990 North California Blvd., Suite 940
Walnut Creek, CA 94596
Telephone: (925) 300-4455
Facsimile: (925) 407-2700
E-mail: jsmith@bursor.com
KRAFT FOODS: Court Certifies 2 Classes in Ploss Trust Suit
----------------------------------------------------------
In the case, HARRY PLOSS, as Trustee for the HARRY PLOSS TRUST DTD
8/16/1993, on behalf of himself and a proposed class, et al.,
Plaintiffs, v. KRAFT FOODS GROUP, INC. and MONDELEZ GLOBAL LLC,
Defendants, Case No. 15 C 2937 (N.D. Ill.), Judge Edmond E. Chang
of the U.S. District Court for the Northern District of Illinois,
Eastern Division, (a) granted Ploss' motion for class
certification, and (b) denief Kraft's motions (i) to exclude Dr.
Craig Pirrong's opening report, and (ii) to strike his rebuttal
report.
Ploss and the other Plaintiffs brought the proposed class-action
lawsuit against Kraft and Mondelez Global, alleging violations of
the Commodity Exchange Act ("CEA"); the Sherman Antitrust Act; and
unjust enrichment. In the Consolidated Class Action Complaint
("Complaint"), Ploss alleged that Kraft manipulated the
wheat-futures market using two schemes: the long wheat futures
scheme, and the wash trading scheme.
Ploss alleges that Kraft manipulated the wheat-futures market by
buying and maintaining an enormous position on wheat futures for
the purpose of influencing prices, rather than out of any
legitimate need for that quantity of wheat. Specifically, Kraft
bought $90 million worth of December 2011 wheat futures contracts,
and then refused to liquidate its long position and stopped buying
wheat in the cash market. These acts, according to Ploss, falsely
signaled to the market that Kraft was satisfying its need for wheat
from the futures market rather than the cash market, and caused the
wheat prices in the cash market to drop and the price of wheat
futures to increase. As a result of the artificial prices
allegedly caused by the scheme, all of the Plaintiffs that
transacted in December 2011 and March 2012 wheat futures lost money
-- that is, the Plaintiffs allege that they either bought at a
higher price or sold at a lower price than they would have absent
Kraft's allegedly manipulative actions.
After a prior motion to dismiss, all that remains are the claims on
the long wheat futures scheme.
Ploss now seeks to certify the following two classes under Federal
Rule of Civil Procedure 23(b)(3), comprised of all persons who
either:
a. purchased a CBT December 2011 or a CBT March 2012 futures
contract after Oct. 31, 2011 except that purchases of CBT March
2012 futures contracts made after Dec. 14, 2011 qualify for
inclusion in the Class only to the extent they were made in
liquidation of a short position in the CBT March 2012 contract
(whether an outright short position or as part of a spread
position) which was sold between November 1 and Dec. 14, 2011
inclusive; or
b. sold put options or purchased call options on the CBT
December 2011 contract or on the CBT March 2012 contract after Oct.
31, 2011 except that sales of put options or purchases of call
options on the CBT March 2012 contracts made after Dec. 14, 2011
qualify for inclusion in the Class only to the extent they were
made in liquidation of a position in the CBT March 2012 contract
(whether an outright position or as part of a spread position)
which was initiated between November 1 and Dec. 14, 2011
inclusive.
In support of the motion, Ploss first submitted an opening expert
report authored by Dr. Craig Pirrong. In the opening report,
Pirrong opined, among other things, that Kraft caused artificially
high prices in the December 2011 and March 2012 wheat futures
markets, thus causing the Plaintiffs' damages.
Kraft, unsurprisingly, opposes the class-certification motion. To
rebut Pirrong's report, Kraft submitted the expert report of Dr.
James Overdahl, who attempted to poke holes in Pirrong's causation
opinions. Ploss then submitted a rebuttal report written by
Pirrong, which responded to Overdahl's criticisms. Kraft moves to
exclude Pirrong's causation opinions and to strike parts of the
rebuttal report.
Judge Chang finds that Ploss has satisfied the Rule 23
Requirements: (1) typicality; (2) the adequacy of class
representatives; (3) predominance; and (4) ascertainability.
Turning to the challenges to Pirrong's Reports, the Judge holds
that because the objected-to material is not critical to class
certification, the Court need not decide either of Kraft's motions
targeting the expert reports at this time. At this stage, all that
Ploss was required to do was show that the class' claims will rely
on common evidence. And that Ploss has done, specifically by
relying on Pirrong's event study. Ploss need not also prove (yet)
that he will actually prevail on the causation question using the
event study. The motions are denied without prejudice.
For these reasons, Judge Chang granted Ploss' motion for class
certification as to the proposed classes. To repeat, the following
class is certified on the federal claims and the state law claim --
all persons who either:
a. purchased a CBT December 2011 or a CBT March 2012 futures
contract after Oct. 31, 2011 except that purchases of CBT March
2012 futures contracts made after Dec. 14, 2011 qualify for
inclusion in the Class only to the extent they were made in
liquidation of a short position in the CBT March 2012 contract
(whether an outright short position or as part of a spread
position) which was sold between November 1 and Dec. 14, 2011
inclusive; or
b. sold put options or purchased call options on the CBT
December 2011 contract or on the CBT March 2012 contract after
October 31, 2011 except that sales of put options or purchases of
call options on the CBT March 2012 contracts made after Dec. 14,
2011 qualify for inclusion in the Class only to the extent they
were made in liquidation of a position in the CBT March 2012
contract (whether an outright position or as part of a spread
position) which was initiated between November 1 and Dec. 14, 2011
inclusive.
The Court directed parties to confer on the proposed Notice to the
Class, starting with Ploss drafting a proposed notice and
circulating it to Kraft by Jan. 13, 2020. If practicable, Ploss
will file a motion proposing the notice plan in advance of the Jan.
23, 2020 status hearing, the Court adds.
A full-text copy of the Court's Jan. 3, 2020 Memorandum Opinion &
Order is available at https://is.gd/vUXfzT from Leagle.com.
Harry Ploss, as Trustee for the Harry Ploss Trust DTD 8/16/1993, on
behalf of Plaintiff and all others similarly situated, Plaintiff,
represented by Christopher Lovell -- CLovell@lshllp.com -- Lovell
Stewart Halebian, LLP, Christopher M. McGrath --
CMcGrath@lshllp.com -- Lovell Stewart Halebian Jacobson LLP, Marvin
Alan Miller, Miller Law LLC, Amanda Nicole Miller, Lowey
Dannenberg, P.C., pro hac vice, Benjamin M. Jaccarino, Lovell
Stewart Halebian Jacobson LLP, pro hac vice, Gary S. Jacobson,
Lovell Stewart Halebain, Ian Trevor Stoll -- IStoll@lshllp.com --
Lovell Stewart Halebian Jaconson Llp & Lori Ann Fanning --
lfanning@millerlawllc.com -- Miller Law LLC.
Robert Wallace & Joseph Caprino, Plaintiffs, represented by
Christopher Lovell, Lovell Stewart Halebian, LLP, W. Joseph
Bruckner, Lockridge Grindal Nauen P.L.L.P., Devona Lynn Wells,
Lockridge Grindal Nauen P.l.l.p., pro hac vice, Douglas A. Millen,
Freed Kanner London & Millen, LLC, Heidi M. Silton, Lockridge
Grindal Nauen P.L.L.P., pro hac vice, Kate M. Baxter-kauf,
Lockridge Grindal Naeun P.l.l.p., pro hac vice, Marco Cercone, RUPP
BAASE PFALZGRAF CUNNINGHAM LLC, Robert J. Wozniak, Freed Kanner
London & Millen, LLC & Steven A. Kanner, Freed Kanner London &
Millen, LLC.
Nathan Wallace, Plaintiff, represented by W. Joseph Bruckner,
Lockridge Grindal Nauen P.L.L.P., Devona Lynn Wells, Lockridge
Grindal Nauen P.l.l.p., pro hac vice, Douglas A. Millen, Freed
Kanner London & Millen, LLC, Heidi M. Silton, Lockridge Grindal
Nauen P.L.L.P., pro hac vice, Kate M. Baxter-kauf, Lockridge
Grindal Naeun P.l.l.p., pro hac vice, Robert J. Wozniak, Freed
Kanner London & Millen, LLC & Steven A. Kanner, Freed Kanner London
& Millen, LLC.
Kevin Brown, Plaintiff, represented by Christopher Lovell, Lovell
Stewart Halebian, LLP, W. Joseph Bruckner, Lockridge Grindal Nauen
P.L.L.P., Douglas A. Millen, Freed Kanner London & Millen, LLC,
Heidi M. Silton, Lockridge Grindal Nauen P.L.L.P., pro hac vice,
Kate M. Baxter-kauf, Lockridge Grindal Naeun P.l.l.p., pro hac
vice, Marco Cercone, RUPP BAASE PFALZGRAF CUNNINGHAM LLC, Robert J.
Wozniak, Freed Kanner London & Millen, LLC & Steven A. Kanner,
Freed Kanner London & Millen, LLC.
Richard Dennis, Plaintiff, represented by Christopher Lovell,
Lovell Stewart Halebian, LLP, Geoffrey M. Horn, Lowey Dannenberg,
P.C., Vincent Briganti, Lowey Dannenbergt, P.C., Christian Levis,
Lowey Dannenberg, P.C., pro hac vice, Craig Maider, Lowey
Dannenberg, P.C., pro hac vice, Matthew J. Acocella, Lowey
Dannenberg, P.C., pro hac vice, Peter D. St. Phillip, Jr., Lowey
Dannenberg, P.C., pro hac vice & Raymond P. Girnys, Lowey
Dannenberg, P.C., pro hac vice.
White Oak Fund, LP, Plaintiff, represented by Christopher Lovell,
Lovell Stewart Halebian, LLP, Brian Philip Murray, Glancy Prongay &
Murray LLP, pro hac vice, Douglas A. Millen, Freed Kanner London &
Millen, LLC, Lee Albert, Glancy Prongay & Murray LLP, pro hac vice,
Robert J. Wozniak, Freed Kanner London & Millen, LLC & Steven A.
Kanner, Freed Kanner London & Millen, LLC.
Budicak Inc., Plaintiff, represented by Christopher Lovell, Lovell
Stewart Halebian, LLP, Anthony F. Fata, Cafferty Clobes Meriwether
& Sprengel LLP & Jennifer Winter Sprengel, Cafferty Clobes
Meriwether & Sprengel LLP.
Kraft Foods Group, Inc. & Mondelez Global LLC, Defendants,
represented by Dean Nicholas Panos -- dpanos@jenner.com -- Jenner &
Block LLP, Christopher Graham Wells, Jenner & Block LLP, J. Kevin
McCall -- jmccall@jenner.com -- Jenner & Block LLP, Nicole Amie
Allen -- nallen@jenner.com -- Jenner & Block LLP & Thomas Edward
Quinn -- tquinn@jenner.com -- Jenner & Block LLP.
KSM HEALTHCARE: Underpays Housekeepers, Hernandez Suit Alleges
--------------------------------------------------------------
ARGELIA ALVARADO HERNANDEZ, individually and on behalf of all
others similarly situated, Plaintiff v. KSM HEALTHCARE INC. D/B/A
DREIER'S NURSING CARE CENTER; and DOES 1 THROUGH 10, INCLUSIVE,
Defendants, Case No. 19STCV46542 (Cal. Super., Los Angeles Cty.,
Dec. 27, 2019) is an action against the Defendants for unpaid
regular hours, overtime hours, minimum wages, wages for missed meal
and rest periods.
The Plaintiff Hernandez was employed by the Defendants as
housekeeper.
KSM Healthcare Inc. d/b/a Dreier's Nursing Care Center is a nursing
facility offering the therapy and care in Glendale, CA. [BN]
The Plaintiff is represented by:
Roman Otkupman, Esq.
Meghan Maertz, Esq.
OTKUPMAN LAW FIRM, A LAW CORPORATION
28632 Roadside Dr., Suite 203
Agoura Hills, CA, 91301
Telephone: (818) 293-5623
Facsimile: (888) 850-1310
E-mail: Roman@OLFLA.com
Meghan@OLFLA.com
LANDS' END INC: Uniforms Cause Health Problems, Workers Claim
-------------------------------------------------------------
A class action lawsuit by workers at Lands' End, Inc., and Lands'
End Outfitters, Inc., alleges negligence, design defect,
manufacturing defect, failure to warn, breach of express warranty,
breach of implied warranty and violation of the Magnuson-Moss
Warranty Act.
According to the complaint, since May 29, 2018, the Plaintiffs have
been required to wear newly-issued work uniforms manufactured by
the Defendants. These Uniforms are high stretch, wrinkle and
stain-resistant, waterproof, anti-static, and deodorizing. The
Defendants used various chemical additives and finishes to achieve
these characteristics. The combination of these additives and
finishes has an allergic and sensitizing effect on the human body,
even if those several additives and finishes are relatively safe in
their individual respective quantities. The Uniforms contain
chemical additives and finishes including chromium, antimony,
mercury, formaldehyde, fluorine and bromine in excess of
industry-accepted levels for garments.
Since the introduction of the Uniforms, the Plaintiffs and many
other Delta Employees have suffered a myriad of health problems as
a result of the excessive allergen and sensitizing properties of
the Uniforms. The uniforms caused health complications such as skin
rashes, headaches, fatigue, breathing difficulties, hair loss, low
white blood cell counts and nausea.
Lands' End, Inc. manufactures men's, women's, and children's
apparel and accessories. The Company produces and distributes
swimwear, clothing, bedding, totes, furniture, bath accessories,
uniforms, outerwear, and various related products. Lands' End
offers its products through its catalog and website worldwide.
The case is captioned, as STEPHANIE ANDREWS; JANELLE AUSTIN;
PHYLLIS HEFFELFINGER; KELLI HEIST; VIRGINIA MATHIOS; JANET
MURPHREE; DANA SMITH; HOPE TUCKER; LISA UDDIN-BARNESWRIGHT; MICHELE
WARNER; LYNDA VALDEZ; JOSEPH ABAMONTE; JULIE ABATE; KIMBERLY ABBEY;
KERRY ABRAHAMSEN; RACHEL ABUKHDEIR; CAROL ADAMS-CONNER; KATHY
ADAMS; LENEE' ADKINS; JACQUELINE ALLBRIGHT; AUSTIN ALFORD; LEIANNE
AL-KHAFAJI; JANA ALLAN; CYNTHIA ALLEN; ALMUDENA PRESAS ALONSO;
NICOLE ALVAREZ; BARBARA ALVES; MARINA AMIEVA; LORI ANDERLE; JAMI
LYN ANDERSON; RIKA ANDERSON; JAMIE ANGULO; HILARY ARANA; ROCHELLE
ARCH-HAYOSTECK; NATALIA ARTEMENKO; STACEY ATKINS; ANNMARIE
ANTONELLI; BONNIE AUDSLEY; NINA AVILES; BRANDIS BANKS; DANA BANKS;
DEBRA BARETTA; ANGELA BARTHELEMY; JOHN BECKSTRAND; CORI BEHRENDS;
REBECCA BEIERSDORG; TIA BELBODA; MAURA BENATTI; CINDY BERG; RENEE
BERGLUND; CYNTHIA BERZEL; NICOLE BETSON; JEAN BEVER; KATHLYN BEZ;
POLLY BIASUCCI; MARY BIESSENBERGER; SACHA BIGLER; JANET BLACK;
THERESE BLACKWELL; MORGAN BLISS; FRANCES BLITZ; KATHLEEN BODENE;
ROBIN BODENHEIMER; LORRAINE BOLLA; MARILYN BOWDEN; CHRISTINE
BRABECK; JACLYN BRADLEY; JACOB BRAUCHT; KATHLEEN BREEDLOVE; EILLEEN
BRENNAN; CHERIE BRENNER; KATE BRITT; SHARI BROWN; EMMA BRYANT;
JOYCE BRYANT-BURRUS; DENISE BRYSON; JACQUELINE BUCCI; MARCELLA
BULGER; KAYLA BUONO; PASCALE BURGUENO; MARYY JO BURNS; ERIN BURREY;
PIA BUSCHER; EMILY BUSKEN; CHA HUI CAIN; ANTONIETTA CALDARELLA;
AMANDA CALVERT; CHRISTA CAMPBELL; KATHY CAMPBELL; MARIA CARLISLE;
LAURETTE CARNS; ELIZABETH CASSIDY; DARIS CASON; IDA CASTROGUINN;
KATHERINE CEDOLA; TIFFANY CHALLIS; EVA CHAUVIN; BECKY CHERRY; DEBRA
CHESBRO; EMILY BETH CHEZES; GEORGINA CHU; CAROLINE CIEZ; BREONTA
CLARK; ERIN CLEVELAND; RONDA COCHERELL; KAREN COFFMAN; EMMA COLE;
AUTUMN COLEMAN; JACQUELYN COLLINS; JOSE COLON-VILLANUEVA; CHRISTY
COMBS; CANDACE CONNER KABELA; DONNA CONSTANT; DIANA CONWAY;
KATHLEEN COOPER; MICHAEL CORTIS; KATHLEEN COTNOIR; SUSAN
COUVILLION; MARSHA COWLING;KRYSTLE COWART; DREDRICK COX; LINDA
CREECH; ANGELA CROWELL; RAVEN CURINGTON; CORINNE DALLMAN; LORIE
DANA; ELAINE DAVIS; JO-LYNN DAVIS; KATIE DAVIS; TAMARA DEANGELIS;
ALEXANDRA DELA; JENNIFER DELAPENHA; DIANA DEL-BARRIO; PAULINE
DEMAET; VERONICA DEMAGGIO; SHARON DENNEY; MARSHA DEVANEY; JOANN
DEVENY; NANCY DIAMOND; KAYLA DIBELLA; SUZANNE DIFRAIA-ORTEGA;
TEODORA DIMITROVA; JOANNA DIRIENZO; KAREN DISANTIS; MARGARET
DRISCHLER; NANCY DORMAN; MICHELE DOSS; KATHLEEN DOUGLAS; DAWN
DRAKE; LAURA DREWE; LOUISE DUHAMEL; GENARINA DUNCAN; MADONNA DUNN;
CYNTHIA DURUSHIA; JAN DYSSEGARD; JOHNNY EDWARDS; JAN EGGE; BRENT
EGLAND; SHARON ELBOIM; LISA ERICKSON; ALIXANDRA ERRINGTON; JESSICA
ESPINOSA; BRENDA EVANS; DEBBY EVERS; LAWRENCE FARRER; EVA FARRIS;
NICOLE FAZIO; STEVE FILLMORE; JAMIE FINE; KIMBERLY FITCH; KATHRYN
FLYNN; ASHLEIGH FOOTE; LISA FORTUNA; JILL FOUTS; LORI FOUTY; DEBRA
FRANKLIN; AKANE FREEMAN; BELISSA FUENTES; MYRA FUJI; BETTINA
GARCIA; SUGAR GARCIA-HALL; KATRENA GARSKE; RACHEL GAROUTTE; BAILEY
GARRISON; JACK GAZIS; MICHELLE GENTRY; SARAH GERARD; JANE GERMANN;
KATRINA GILLIAM; KIMBERLY GODBY; JOHN GOLD; MARYJO GONDEK; CYNDEE
GOODMAN; KATHLEEN GRAY; SHANNON GRAY; JENNIFER GREEN; NEVINE
GROULX; CHANDRA GRONVOLD; MELODY GUERRERO; GREGORY GUINN; DEBRA
HADLER; FRANCES HALE; NICHOLAS HALL; KRISTINE HAMMER; CLAUDETTE
HANDKE; DARLA HANSEN; SAMANTHA HARDING; LINDA HALL-SHIPMAN; HILLARI
HARDT; DEBRA HARGIS; SAMRA HARMINDER; KELLY HARRIS; CHRISTINA HART;
SPENCER HAYES; STACY HAYES; TIFFANYANNE HAYES; PAM HAYNES; NELLY
HEIST; SHAWN HENCHAL; JILL HENDRICKS; LAURA HENNING; CINDY
HELD-SZLASA; TANISHA HENRY; SUSAN HENSLEY; AMANDA HEPLER; KIMARA
HERBERT; MAGDA HERMANSEN; CHRISTINE HOADLEY; KATHARINE HODGE; LISA
HOGAN; HEATHER HOLLISTER; ELLEN HOLLOWELL; HEATHER HOTVEDT; KARI
HOUSHOLDER; LINDSEY HOWARD; JEANNIE HOWELL; JULIE HUISMANN; JUMHEE;
HWANG; ADELE IAQUINTA; GIOVANNA INGRAM; JEANNE JACKSON; LAURA
JACKSON; PAULA JACKSON; KAITLYN JAGIELO; KIMBERLY JARY; KAREN JAY;
MIA JESPERSEN; JOEL KINNARD; KARI JOHNKE-HENZLER; BENITA JOHNSON;
URSULA ISIDORE; BRIDGETTE JONES; TAMIKA JONES; AMBER JORDAN; IRENE
KAFTANUK; ANN KALLSEN; KENNETH KAMINSKI; JACKIE KANE; DAVID KAPLAN;
AMANDA KARRICK; CYNTHIA KASMIRSKI; JEAN KATOPODIS; RUTA KAUPIKO;
MARIE KEARSE; BRENDA KERN; CINDY KHA; ADEN KIDANE; TERRI KIDD;
JENNIFER KIM; VIRGINIA KIMBERLAN; JUDIE KIRKLAND; NATASHA KLEPEC;
CAROL KNAIN; REBECCA KOEGER; WENDY KOOPMEINERS; ANNA KOSOVAN; KACI
KOTTEMANN; TERESA KOVARS; KATE KOVARY; KRISTEN KOWALCZYK; ELLEN
KRAMER; JILL KRUPPA; KERRY KRUSE; TSIPORA KUBA; THERESA KUTSCHALL;
RENEE LABBE; JOAN LABOW; MILISSA LACHAUSSEE'; CHRISTINE L'ALLIER;
TANA LAMBERT; KAITLYNN LAMOUR; TATYANA LANCASTER; MARGUERITE
LARSEN; LISA LARSON; MARIA LAYGO; JONATHAN LAZENBY; SUSANNA LEE;
GERALDINE LINDSETH; CARISSA LIZOTTE; GERALEE CORONA; KAREN LEHMAN;
ANN MARIE LIBERATORE; LONG LIM; STEPHANIE LITTLE; JENNIFER LONG;
MARTHA LONG; DANA LOVE-LINN; CHRISTY LUNDE; KRISTEN MADDICK; KELLY
MADER; JOSE MALDONADO; DONNETTE MALOCO; DONENE MANNION; JANINE
MARCHILDON; DEBORAH MARSH; ELIZABETH MARZULLO; ELENA MASSIMO;
CONNIE MASSMANN; JAMERE MAXWELL; JOHN MAZUROWSKI; MICHELLE
MCCARRON; DIANE MCCOMBER; CATHERINE MCDONALD; DAWN MCDONNELL;
SHAYLYN MCENTIRE; VICTORIA MCGARRITY; KAITLYN MCINTOSH; SHARON
MCINTOSH; ANNE PENNY MCINTYRE; DEBBIE MCLELLAN; STACEY MCNEIL;
DEBORAH MCNULTY; KIMBERLY MEADOWS; WILLIAM MEEK; DEBORAH MEISELMAN;
BROOKE MESZAROS; ALLISON MILLER; KIMBERLY MILLER; LISA MILLER;
MARGARET MILLER; JOAN TORMEY MILTON; JESSICA MIZRAHI; LYNN MOFFET;
RICHARD MOGAN; LEYDA MOLINA; DIANA MONTGOMERY- BROCK; BROMLEY
MOORE; JILLIAN MOORE; NINA MOORE; VONDA MORGAN; DEBBIE MCLELLAN;
PATRICK MORSE; MELISSA MORRILL-FURMAN; BONNIE MURO; DEBORAH
MURPHY;WANDA MURRAY; AYTEN NADEAU; NABILA NAIBKHEL; TAUFEEQ NASIR;
PAMELA NEALY; ANDREA NECHVATAL; JENEE NEEB; CHERYL NELSON; EVA
NELSON; SUSAN NEWLAND; TRANG NGUYEN; DEANNE NICHELSON; SHERYLANN
NITTI; BETH NORDYKE; MICHELE NOREEN; YVETTE NUGENT; JENNIFER
OBIOFUMA; KRISTINA OLSON; JODY ONDRIEZEK; EVELYN ORGERON; GERDA
ORROCK; PATRICE OTERO; SONYA OURLIN; SILVA OSWALDO; PENNY OWENS;
GINA PAGE-NELSON; PEGGY PARADEAU; ATHENA PARADIS; LAURIE PARKE;
EMMA PARKER; KAYLA PARNELL; STANLEYPARTYKA; NATANIA PAYNE; KIMBERLY
PEDRETTI; JEANETTE PEDRONI; JOANNE PERGOLA; JODI PERGOLA; KENDRA
PERPICH; JEANETTE PEDRONI; SARA PELOWSKI; SUSAN PENCE; VIRGINIA
PEREZ; CHELSEA PERRY; SHERRY PETERS; TINA FONG-PETERSON; NANCY
PETRONE; LINDSAY PHELPS; YANICK PICAULT-CADET; ANITA PIERCE;
JENNIFER PIERCE; BEATRICE PINON; DINA PINOS; CYNDA POLL; ANNA POPE;
ANDREA POWER; SHANA PROVOST; ANTOINETTE QVISTORFF; MELISSSA
RAICHART; ANNILA RAJPATTY-KISSOONDATH; MARY REED; PATTY REGISTER;
CONSTANCE REID; ANNETTE REJINDERS-KESSEL; MARGARET REMUS; JULIE
RICE; ASHLEY ROBERTS; MARY KAY ROBERTS; DEBORAH ROEBER; KRISTIN
ROHLF; DEBORAH RUMPZA; KAYLA RUSSELL; TAMMY RUSTAD; STACEY
RUTHERFORD; BECKY SALLANDER; DANIELLE SANDERS; MARY-ANN SANDS;
JENNIE SANDUSKY; MONICA SANTAMARIA; NAGISA SAUDARGAS; ANGELAMARIA
SCHERILLO; CYNTHIA SEDUSTINE; LISA SEIBERT; ELIZABETH SEYMOUR; LISA
SHACKELFORD; RACHEL SHANKLIN; PAMELA SHELDON; REBECCA SHELDON;
MICHELLE SHERACK; BRENDA SHORKEY; KATIE SIEG; ANDREA SILVAS; AMANDA
SIMMONS; MELYNDA SINSLEY; KENYA SKYTTE; JACQUELYN SMELTER; LISA
METTELKA SMILEY; ANGELA SMITH; CHRISTINE SMITH; EMILY SNELLGROVE;
DEBRA SPAULDING; KAREN SPEASE; STACI SPURLOCK; AYFER STREET; EILEEN
STEIGERWALD; JILL STRIETER; SANDRA SVIGGUM; LYNN SYPNIEWSKY; NANCY
TALARICO-BORASS DEBRA TALBERT; TANIA TAMAYO-HAGAN; REBECCAH TANGEN;
SUSAN TATE; TISHA TAYLOR; TRACY ELIZABETH TAYLOR; DEBORAH KAY
THIRKELSON; HOLLY THOMPSON; SUSAN THOMPSON; DEMARRIO THORTON;
JULIET THURAB; KIMBERLY TOBIN; CHASE TODD; KRISTIN TOMPKINS;
HENRIQUE TORRES; DONNA TOWNS; ANDREA TRZASKA; ANDREA TROUTMAN;
DIANA TRUE; KATHLEEN TSCHISHOW; LINDA TUCKER; TINA TUCKER; DEANNA
TURNER; KATHRYN UDE; JULIANNE LYNN UMALI; TERI UNSWORTH; TIRANA
VAKNIN; VICTOR VALDEZ; ELISSA VALENZANO; WENDY VANDERTUUK; CAROLINE
VANGRIEKEN; COLLEEN VANRISSEGHEM; JOHN VANRISSEGHEM; ROSALYN VEGA;
MALIN VEJFORS; KERRI VREY; COLLEEN VANRISSEGHEM; GRAEME WAGNER;
JESSICA WAGNER; CAROL WALKER; LISA WALKER; WENDE WALKER; TROYE
WASHINGTON-CLANTON; CATHERINE WEIDA; EMILY WESLEY; ROBIN WHALEY;
DIANE WHITE; VANESSA WILBERT; JENNIFER WILLERT; LISA WILLETE; RANDI
WILLETT; APRIL WILHITE; TAMMY WILKINSON; ADREEAN WILLIAMS; KATHY
WILLIAMS; JOHANNA WINKLER; BARBARA WINSLOW; TERRI WINSLOW; LISA
WOODCOCK; NANCY WOODWARD; LEAH WOPIPKA; LINDA WRIGHT; AMY YON;
MARIA YOUNG; BONNIE YOUNKER; ANNA ZALUZHNY; and REBECCA ZETNICK;
individually and on behalf of others similarly situated, Plaintiffs
v. LANDS' END, INC.; and LANDS' END OUTFITTERS, INC., Defendants,
Case No. 3:19-cv-01066 (W.D. Wis., Dec. 31, 2019)[BN]
The Plaintiffs are represented by:
Bruce A. Maxwell, Esq.
TERRELL HOGAN YEGELWEL, P.A.
233 East Bay Street, 8th Floor
Jacksonville, FL 32202
Tel: (904) 632-2424
E-mail: Maxwell@terrellhogan.com
shicks@terrellhogan.com
- and -
Donald Winder, Esq.
WINDER LAW FIRM
215 S. State Street, Suite 960
Salt Lake City, UT 84111
Tel: (801) 440-5536
E-mail: dwinder@winderfirm.com
- and -
Jay Urban, Esq.
URBAN & TAYLOR S.C.
4701 N. Port Washington Road
Milwaukee, WI 53212
Tel: (414) 906-1700
E-mail: jurban@wisconsininjury.com
rscarletta@wisconsininjury.com
LEBO AUTOMOTIVE: Faces Legare Wage and Hour Suit in California
--------------------------------------------------------------
James Legare, on behalf of himself and all others similarly
situated v. LEBO AUTOMOTIVE INC., a corporation doing business in
California, and DOES 1 through 50, inclusive, Case No. 20STCV03227
(Cal. Super., Los Angeles Cty., Jan. 27, 2020), is brought to
collect civil penalties for the Defendant's violations of the
California Labor Code.
According to the complaint, the Defendant violated numerous wage
and hour laws with respect to the Plaintiff and other aggrieved
employees by failing to provide accurate and itemized wages
statements, payment for all hours worked (including regular wages
and overtime), lawful meal periods, lawful rest periods, timely
payment during employment, and payment upon separation of
employment.
The Plaintiff alleges that the Defendant failed to pay him one
hour's pay at his regular rate of pay for each day the Defendant
failed to provide a meal period in compliance with Section 512 of
the Labor Code. The Defendant also failed to authorize and permit
the Plaintiff and other employee to take rest periods and mandated
by the Wage Order.
The Defendant also failed to compensate employees for all overtime,
which is calculated at one and one-half times the regular rate of
pay for all hours worked in excess of 8 hours per day and/or 40
hours per week, says the complaint.
The Plaintiff was employed by the Defendant as a non-exempt hourly
employee selling vehicles.
The Defendant is a corporation doing business in California.[BN]
The Plaintiff is represented by:
Justin Lo, Esq.
WORK LAWYERS, PC
22939 Hawthorne Blvd., #202
Torrance, CA 90505
Phone: (866) 496-7552
Fax: (424) 355-8535
Email: Justin@WorkLawyers.com
- and -
Kevin Mahoney, Esq.
MAHONEY LAW GROUP, APC
249 E. Ocean Blvd., Ste. 814
Long Beach, CA 90802
Phone: (562) 590-5550
Facsimile: (562) 590-8400
Email: kmahoney@mahoney-law.net
LVNV FUNDING: Faces Ruvalcaba Suit Alleging Violation of FDCPA
--------------------------------------------------------------
A class action lawsuit has been filed against LVNV Funding LLC, et
al. The case is captioned as Talina Ruvalcaba, on behalf of herself
and all others similarly situated v. LVNV Funding LLC, Resurgent
Capital Services L.P., and Resurgence Legal Group, P.C., Case No.
1:20-cv-00140 (N.D. Ill., Jan. 7, 2020).
The case is assigned to the Hon. Judge Robert W. Gettleman.
The suit alleges violation of the Fair Debt Collection Practices
Act.
LVNV Funding purchases portfolios of both domestic (U.S.) and
international consumer debt owned by credit grantors including
banks and finance companies, and by other debt buyers. Resurgent
Capital provides financial services. Resurgence Legal is a
financial services firm focused on recovery of outstanding accounts
receivables for creditors.[BN]
The Plaintiff is represented by:
Celetha Chatman, Esq.
Michael Jacob Wood, Esq.
COMMUNITY LAWYERS GROUP, LTD.
20 North Clark Street, Suite 3100
Chicago, IL 60602
Telephone: (312) 757-1880
E-mail: cchatman@communitylawyersgroup.com
mwood@communitylawyersgroup.com
- and -
Mario Kris Kasalo, Esq.
THE LAW OFFICE OF M. KRIS KASALO, LTD.
20 North Clark Street, Suite 3100
Chicago, IL 60602
Telephone: (312) 726-6160
E-mail: mario.kasalo@kasalolaw.com
MARY KAY INC: Court Dismisses Reid Class Suit Over ADA Breach
-------------------------------------------------------------
Judge Laura Taylor Swain of the U.S. District Court for the
Southern District of New York dismissed the case, VALENTIN REID,
individually and on behalf of all others similarly situated,
Plaintiff, v. MARY KAY INC., Defendant, Case No. 19 CV 7201-LTS-BCM
(S.D. N.Y.).
The class action complaint alleged violations of the Americans with
Disabilities Act.
The attorneys for the parties have advised the Court that the
putative class action has been or will be settled. Accordingly,
Judge Swain dismissed the action with prejudice as to the named
Plaintiff and without prejudice as to all 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 60 days of the date of the Order.
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 60-day period expires.
The parties are advised that if they wish the Court to retain
jurisdiction in this 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 Dec. 13, 2019 Order is available at
https://is.gd/BwkC8A from Leagle.com.
Valentin Reid, on behalf of himself and all others similarly
situated, Plaintiff, represented by Russel Craig Weinrib, Stein
Saks PLLC & David Paul Force -- dforce@steinsakslegal.com -- Stein
Saks, PLLC.
Mary Kay, Inc., Defendant, represented by Jamie Haar --
jamie.haar@ogletree.com -- Ogletree, Deakins, Nash, Smoak &
Stewart, P.C..
MATSU FUSION: Underpays Deliverymen, Chen Suit Alleges
------------------------------------------------------
GUANGCHENG CHEN, individually and on behalf of all others similarly
situated, Plaintiff v. MATSU FUSION RESTAURANT INC. d/b/a Matsu
Japanese Fusion; J & J ASIAN BISTRO INC. d/b/a Matsu Japanese
Fusion; YI CHANG CHEN a/k/a Gary Chen; and MEI FONG CHAN,
Defendants, Case No. 1:19-cv-11895 (S.D.N.Y., Dec. 30, 2019) seeks
to recover from the Defendants unpaid wages and overtime
compensation, interest, liquidated damages, attorneys' fees, and
costs under the Fair Labor Standards Act.
The Plaintiff Chen was employed by the Defendants as a
deliveryman.
Matsu Fusion Restaurant Inc. d/b/a Matsu Japanese Fusion is engaged
in the restaurant business. [BN]
The Plaintiff is represented by:
John Troy, Esq.
TROY LAW, PLLC
41-25 Kissena Boulevard Suite 119
Flushing, NY 11355
Telephone: (718) 762-1324
MAZDA: Faces Class Action Over i-Activsense Brakes
--------------------------------------------------
Courthouse News Service reported that a federal class action claims
that Mazda 2018-20 model year vehicles with i-Activsense brakes can
become overheated and malfunction, improperly slowing or stopping
the car.
A copy of the Complaint is available at:
https://is.gd/LJcwAI
MCKENZIE PAUL: Francois Sues over Debt Collection Practices
-----------------------------------------------------------
MICHELINE FRANCOIS, individually and on behalf of all others
similarly situated, Plaintiff v. MCKENZIE PAUL & ASSOCIATES, INC.,
Defendant, Case No. 8:19-cv-03205-CEH-AEP (M.D. Fla., Dec. 31,
2019) seeks to stop the Defendant's unfair and unconscionable means
to collect a debt.
McKenzie Paul & Associates, Inc. is a licensed and bonded
collection agency who specializes in collections of commercial,
retail, dental and medical debt. [BN]
The Plaintiff is represented by:
Kaelyn Steinkraus, Esq.
LAW OFFICE OF MICHAEL A. ZIEGLER, P.L.
2561 Nursery Road, Suite A
Clearwater, FL 33764
Tel: (727) 538-4188
Fax: (727) 362-4778
E-mail: kaelyn@attorneydebtfighters.com
MDL 2672: Bids to File Under Seal in VW Clean Diesel Suit Denied
----------------------------------------------------------------
In the case captioned IN RE: VOLKSWAGEN "CLEAN DIESEL" MARKETING
SALES PRACTICES, AND, PRODUCTS LIABILITY LITIGATION This Order
Relates To: MDL Dkt. Nos. 6406, 6503, 6921 Napleton, No.
3:16-cv-2086-CRB, MDL No. 2672 CRB (JSC) (N.D. Cal.), Judge Charles
R. Breyer of the U.S. District Court for the Northern District of
California, for the reasons identified in the Court's Nov. 25, 2019
sealing order, denied:
(i) Volkswagen dealers' motion to file under seal portions of
their opposition to the Bosch Defendants' motion for entry of a
Lone Pine case management order;
(ii) the Bosch Defendants' motion to file under seal portions of
their reply in support of their motion for entry of a Lone Pine
case management order; and
(iii) the Bosch Defendants' motion to file under seal portions of
their motion to exclude Edward M. Stockton's expert report in
support of the dealers' opposition to summary judgment.
The parties were directed to file unredacted, publicly-available
versions of the documents covered by these motions by Dec. 12,
2019.
A full-text copy of the Court's Dec. 6, 2019 Order is available at
https://is.gd/Z7nAsI from Leagle.com.
Nicholas Benipayo, Plaintiff, represented by Robert B. Carey --
rcarey@hbsslaw.com -- Hagens Berman Sobol Shapiro LLP, pro hac
vice, Steve W. Berman -- steve@hbsslaw.com -- Hagens Berman Sobol
Shapiro LLP, pro hac vice & Thomas Eric Loeser -- toml@hbsslaw.com
-- Hagens Berman Sobol Shapiro LLP, pro hac vice.
Nadine Bonda, Plaintiff, represented by Adam M. Stewart --
astewart@shulaw.com -- Shapiro Haber & Urmy LLP & Thomas G.
Shapiro -- tshapiro@shulaw.com -- Shapiro Haber and Urmy, LLP.
Brian Connelly, Plaintiff, represented by Thomas G. Shapiro,
Shapiro Haber and Urmy, LLP.
Nicholas Allen, Daniel Carroll, Giancarlo Ceci, Dominic Troffer,
Paul Linnee, Sarah Hayden, Dario Medina, Shanice Boyette, Isaac
Hoover, John Mazur & Forrest Tinsler, Plaintiffs, represented by
Caleb Marker -- caleb.marker@zimmreed.com -- Zimmerman Reed LLP,
pro hac vice & Charles S. Zimmerman -- csz@zimmreed.com --
Zimmerman Reed, PLLP, pro hac vice.
Volkswagen Group of America, Inc., a New Jersey Corporation,
Defendant, represented by Amie Adelia Vague, Lightfoot Franklin &
White, Casey Erin Lucier -- clucier@mcguirewoods.com --
McGuireWoods LLP, Charles J. Baker, III -- chuck.baker@wbd-us.com
-- Womble Carlyle Sandridge and Rice, Colin Hampton Tucker --
chtucker@rhodesokla.com -- Rhodes Hieronymus Jones Tucker & Gable,
Dana Woodrum Lang, Womble Carlyle Sandridge and Rice, David M.
Eisenberg -- eisenberg@bscr-law.com -- Baker, Sterchi, Cowden &
Rice, LLC, Henry Buist Smythe, Jr. -- henry.smythe@wbd-us.com --
Womble Carlyle Sandridge and Rice, Howard Feller --
hfeller@mcguirewoods.com -- McGuireWoods LLP, William R. Scherer,
Conrad and Scherer, LLP633 South Federal Highway, Eighth Floor,
Fort Lauderdale, FL 33301.
MEDICREDIT INC: 5th Cir. Overturns Class Cert. Ruling in Flecha
---------------------------------------------------------------
Judge James C. Ho of the U.S. Court of Appeals for the Fifth
Circuit reversed the class certification order in the case, NINA
FLECHA, on behalf of herself and all others similarly situated,
Plaintiff-Appellee, v. MEDICREDIT, INCORPORATED; FIDELITY AND
DEPOSIT COMPANY OF MARYLAND, Defendants-Appellants, Case No.
18-50551 (5th Cir.), and remanded for further proceedings.
Flecha neglected to pay for the medical care she received from
Seton Medical Center Hays. To help Seton collect on that debt,
Medicredit, a voluntary debt collection service provider, sent
Flecha a series of collection letters -- including the one at the
heart of the suit.
Flecha never contacted Medicredit. But she did contact Seton and
ask if she was eligible for any debt repayment programs. Seton
informed her that she could enter into a payment plan if she made
an upfront payment -- one Flecha could not afford. Over the course
of these conversations, Flecha claims she was given the impression
that Seton would sue her to collect her debt.
In response to both the letter from Medicredit and her subsequent
conversations with Seton, Flecha brought the suit under the Fair
Debt Collection Practices Act ("FDCPA") against Medicredit (as well
as its surety bondholder, Fidelity and Deposit Co. of Maryland).
Flecha alleged that Medicredit's letter made a false threat of
legal action against her, in violation of the FDCPA, because Seton
in fact never intended to sue her over her unpaid medical debt.
Flecha sought class certification. She argued that everyone who
received the same letter from Medicredit was likewise falsely
threatened with legal action that Seton never actually intended to
bring, and that everyone was accordingly entitled to statutory
damages under the FDCPA. Both Flecha and Medicredit also filed
cross-motions for summary judgment.
The district court denied summary judgment. It concluded that
questions of fact remained about (1) whether an unsophisticated
consumer would construe the Medicredit letter to threaten legal
action, and (2) whether Seton intended to take legal action against
Flecha.
After disposing of the summary judgment motions, the district court
then granted Flecha's motion for class certification and appointed
her class representative. The court defined the class as all
Texans who had received the same letter from Medicredit that Flecha
received: "All persons in Texas from whom Medicredit attempted to
collect and who received a form collection letter from Medicredit
containing these statements: Your seriously delinquent Seton
Medical Center Hays account remains unpaid despite past requests
for payment. At this time, a determination must be made with our
client as to the disposition of your account. Your failure to
cooperate in satisfying this debt indicates voluntary resolution is
doubtful. However, if it is now your desire to clear your account,
you need to promptly remit the balance in full." Flecha estimates
that at least 7,650 people in Texas received such a letter.
The Court granted Medicredit's motion for leave to appeal the class
certification order under Rule 23(f). On appeal, Medicredit argues
that Flecha failed to meet this exacting standard. It contends that
the putative class fails the commonality and typicality
requirements of Rule 23(a) as well as the predominance requirement
of Rule 23(b)(3).
Judge Ho agrees. To establish liability under the FDCPA, the class
must prove not only that Medicredit's letter threatened legal
action, but that it did so despite the fact that Seton did not
intend to pursue legal action. Yet Flecha failed to provide any
evidence concerning Seton's intent to sue (or lack thereof) -- let
alone any evidence of class-wide intent. This lack of evidence
concerning Seton's class-wide intent is fatal to class
certification, says the Court.
Accordingly, Flecha failed to carry her burden to "affirmatively
demonstrate" commonality. She failed to demonstrate that her claim
that Medicredit falsely threatened to take legal action against
class members is capable of classwide resolution. And so that
leaves the class without a common issue, rules Judge Ho.
Her failure to prove commonality also establishes her failure to
prove either typicality or predominance. After all, if there is no
common issue uniting the putative class, Flecha's claim can't be
"typical of the claims or defenses of the class." Nor can Flecha
demonstrate that common issues "predominate over any questions
affecting only individual members," when she hasn't even
established the existence of a common issue to begin with.
In sum, the putative class fails under Rule 23 and cannot be
certified, Judge Ho opines.
Because the class fails under Rule 23, there is no need to
separately decide whether the class additionally fails under
Article III. But the standing issues in the case are real.
Countless unnamed class members lack standing. But, if there is no
class action under Rule 23, then there are no unnamed class members
in the suit -- and thus no attendant class standing concerns. If
there is no class action, then there is no need to analyze the
Article III standing of the unnamed members of a non-existent
class. In the case, no one alleges that Flecha herself has an
Article III problem. The only issue is whether the unnamed class
members have standing. And under Amchem and Ortiz, that standing
issue is "moot," because the class fails under Rule 23.
Finally, superiority is only one of the numerous conditions that
must be met before a class may be certified under Rule 23. Proof
of a negative value suit may be necessary to prove superiority --
but it is not sufficient to warrant class certification under Rule
23(b)(3).
Based on the foregoing, Judge Ho reversed the class certification
order and remanded for further proceedings.
A full-text copy of the Court's Jan. 8, 2020 Order is available at
https://is.gd/RYs1Br from Leagle.com.
Tara Moriarty Kumpf -- tara.kumpf@ogletreedeakins.com -- for
Defendant-Appellant.
Jacob Ward Sparks -- jsparks@spencerfane.com -- for
Defendant-Appellant.
Maura Kathleen Monaghan -- mkmonaghan@debevoise.com -- for
Defendant-Appellant.
Jacob W. Stahl -- jwstahl@debevoise.com -- for
Defendant-Appellant.
Harold W. Williford -- hwwillif@debevoise.com -- for
Defendant-Appellant.
Michael Jacob Wood -- mwood@communitylawyersgroup.com -- for
Plaintiff-Appellee.
Robert Zimmer -- zimmerlawtx@gmail.com -- for Plaintiff-Appellee.
Scott James Dickenson -- sdickenson@spencerfane.com -- for
Defendant-Appellant.
MINCH PROFESSIONAL: Underpays Cleaners, Eder Suit Alleges
---------------------------------------------------------
MICHELE EDER, individually and on behalf of all others similarly
situated, Plaintiff v. MINCH PROFESSIONAL CLEANING SERVICES, LLC;
KATHLEEN MINCH; and LEN HARDY, Defendants, Case No.
2:19-cv-06088-GJP (E.D. Pa., Dec. 24, 2019) is an action against
the Defendants for failure to pay minimum wages and overtime
compensation under the Fair Labor Standards Act.
The Plaintiff Eder was employed by the Defendants as cleaner.
Minch Professional Cleaning Services, LLC is a limited liability
company organized and existing under the laws of the Commonwealth
of Pennsylvania. The company's line of business includes building
cleaning and maintenance services. [BN]
The plaintiff is represented by:
Michael Murphy, Esq.
Michael Groh, Esq.
MURPHY LAW GROUP, LLC
Eight Penn Center, Suite 2000
1628 John F. Kennedy Blvd.,
Philadelphia, PA 19103
Telephone: (267) 273-1054
Facsimile: (215) 525-021
E-mail: murphy@phillyemploymentlawyer.com
mgroh@phillyemploymentlawyer.com
MOHAWK INDUSTRIES: PERS of Miss. Sues Over Drop of Stock Price
--------------------------------------------------------------
PUBLIC EMPLOYEES' RETIREMENT SYSTEM OF MISSISSIPPI, individually
and on behalf of all others similarly situated v. MOHAWK
INDUSTRIES, INC., JEFFREY S. LORBERBAUM, FRANK H. BOYKIN, GLENN R.
LANDAU, and WILLIAM CHRISTOPHER WELLBORN, Case No.
4:20-cv-00005-ELR (N.D. Ga., Jan. 3, 2020), is brought on behalf of
all persons or entities that purchased shares of Mohawk's common
stock between April 28, 2017, and July 25, 2019, alleging violation
of the Securities Exchange Act of 1934.
Throughout the Class Period, the Defendants continued making false
and misleading statements about the Company's sales growth and
demand for its Conventional Flooring Products, the Plaintiff
alleges. Then, on July 25, 2019, after the market closed, Mohawk
revealed that sales in its Flooring segment were down 7%
year-over-year, and that it was again reducing production to
control inventory levels and match its supply with customer demand.
Accordingly, the Company gave a weak earnings forecast for the
third quarter of 2019, which was well below analysts' estimates. As
a result of these disclosures, the price of Mohawk's stock dropped
from $156.36 per share to $128.84 per share, or nearly 18%, on
unusually high trading volume, according to the complaint.
As a result of the Defendants' wrongful acts and omissions, and the
precipitous decline in the market value of the Company's
securities, the Plaintiff asserts it and other Class members have
suffered significant losses and damages.
Public Employees' Retirement System of Mississippi is a pension
fund established for the benefit of the current and retired public
employees of the State of Mississippi.
Mohawk is a global manufacturer of flooring products. The
Individual Defendants are officers and directors of the
company.[BN]
The Plaintiff is represented by:
Lamar Mixson, Esq.
Amanda Kay Seals, Esq.
BONDURANT MIXSON & ELMORE, LLP
1201 West Peachtree Street NW, Suite 3900
Atlanta, GA 30309
Telephone: (404) 881-4100
Facsimile: (404) 881-4111
E-mail: mixson@bmelaw.com
seals@bmelaw.com
- and -
Avi Josefson, Esq.
Michael D. Blatchley, Esq.
BERNSTEIN LITOWITZ BERGER & GROSSMANN LLP
1251 Avenue of the Americas
New York, NY 10020
Telephone: (212) 554-1400
Facsimile: (212) 554-1444
E-mail: avi@blbglaw.com
michaelb@blbglaw.com
MSC INDUSTRIAL: Guglielmo Sues Over Disabilities Act Violations
---------------------------------------------------------------
A class action lawsuit has been filed against MSC Industrial Direct
Co., Inc. The case is captioned as Joseph Guglielmo, on behalf of
himself and all others similarly situated v. MSC Industrial Direct
Co., Inc., Case No. 1:20-cv-00031-LTS (S.D.N.Y., Jan. 3, 2020).
The case is assigned to the Hon. Judge Laura Taylor Swain.
The lawsuit alleges violation of the Americans with Disabilities
Act.
MSC Industrial is an industrial equipment distributor company.[BN]
The Plaintiff is represented by:
David Paul Force, Esq.
STEIN SAKS, PLLC
285 Passaic Street
Hackensack, NJ 07601
Telephone: (201) 282-6500
E-mail: dforce@steinsakslegal.com
NATURAL ENERGY: Farber Seeks to Recover Overtime Wage Under FLSA
----------------------------------------------------------------
Chad Farber, individually and on behalf of all others similarly
situated v. NATURAL ENERGY FIELD SERVICES, LLC, Case No.
4:20-cv-00301 (S.D. Tex., Jan. 27, 2020), seeks to recover unpaid
overtime compensation from the Defendant as required by the Fair
Labor Standards Act.
The Plaintiff and similarly situated Collective Members typically
work at least twelve-hour shifts, seven days a week, for weeks at a
time, in some of the harshest working conditions, says the
complaint. Despite treating its Day Rate Workers as non-exempt
employees, the Defendant failed to properly pay overtime
compensation at 1.5 times Day Rate Workers' regular rate of pay. As
a result, the Plaintiff contends, the Defendant significantly
underpaid the Plaintiff and other Day Rate Workers for overtime
hours worked.
Plaintiff Farber was employed by the Defendant as Welding
Inspector, a day rate worker from June 2018 through October 11,
2019.
The Defendant is actively operating at oilfields around the United
States.[BN]
The Plaintiff is represented by:
Richard J. (Rex) Burch, Esq.
BRUCKNER BURCH PLLC
8 Greenway Plaza, Suite 1500
Houston, TX 77046
Phone: (713) 877-8788
Telecopier: (713) 877-8065
Email: rburch@brucknerburch.com
- and -
Joseph A. Fitapelli, Esq.
Frank J. Mazzaferro, Esq.
FITAPELLI & SCHAFFER, LLP
28 Liberty Street, 30th Floor
New York, NY 10005
Phone: (212) 300-0375
NCB MANAGEMENT: Placeholder Class Cert. Bid Filed in Lisiecki Suit
------------------------------------------------------------------
In the class action lawsuit styled as MICHELLE LISIECKI,
Individually and on Behalf of All Others Similarly Situated, the
Plaintiff, v. NCB MANAGEMENT SERVICES, INC., the Defendant, Case
No. 2:20-cv-00131-NJ (E.D. Wisc.), the Plaintiff filed a
"placeholder" motion for class certification in order to prevent
against a "buy-off" attempt, a tactic class-action defendants
sometimes use to attempt to prevent a case from proceeding to a
decision on class certification by attempting to "moot" the named
plaintiff's claims by tendering the plaintiff individual (but not
classwide) relief.
The Plaintiff asks the Court for an order to certify class, appoint
Plaintiff as the class representative, and appoint Plaintiff's
attorneys as class counsel.
In Campbell-Ewald Co. v. Gomez, 136 S. Ct. 663, 672 (2016), the
Supreme Court held "an unaccepted settlement offer or offer of
judgment does not moot a plaintiff's case," and "a would-be class
representative with a live claim of her own must be accorded a fair
opportunity to show that certification is warranted." The Sixth
Circuit applied Campbell-Ewald in an unreported opinion in Family
Health Chiropractic, Inc. v. MD On-Line Sols., Inc., No. 15-3508,
2016 WL 384823, at (6th Cir. Feb. 2, 2016).
In Wilson v. Gordon, F.3d 934, 949-50 (6th Cir. 2016), the Sixth
Circuit held that, even where "[the parties [did] not dispute that
all eleven named plaintiffs' individual claims became moot before
the district court certified the class," the "picking-off"
exception applied and allowed the named plaintiffs with moot
individual claims to pursue class certification, which would
"relate back" to the filing of the complaint, applying Deposit
Guar. Nat'l Bank v. Roper, 445 U.S. 326, 339 (1980). The Sixth
Circuit held this ruling was consistent with Campbell-Ewald, 136 S.
Ct. at 672, which refused to put defendants "in the driver's seat"
on class certification.[CC]
The Plaintiff is represented by:
John D. Blythin, Esq.
Mark A. Eldridge, Esq.
Jesse Fruchter, Esq.
Ben J. Slatky, Esq.
ADEMI & O'REILLY, LLP
3620 East Layton Avenue
Cudahy, WI 53110
Telephone: (414) 482-8000
Facsimile: (414) 482-8001
Email: jblythin@ademilaw.com
meldridge@ademilaw.com
jfruchter@ademilaw.com
bslatky@ademilaw.com
NEWELL BRANDS: Court Dismisses Securities Suit Without Prejudice
----------------------------------------------------------------
Judge John Michael Vazquez of the U.S. District Court for the
District of New Jersey granted the Defendants' motion to dismiss
the first amended complaint in IN RE NEWELL BRANDS, INC. SECURITIES
LITIGATION, Civil Action No. 18-10878 (JMV) (D. N.J.) for failure
to state a claim pursuant to the Private Securities Litigation
Reform Act of 1995 (PSLRA") and Federal Rule of Civil Procedure
12(b)(6).
The putative class action concerns allegations of securities fraud
on behalf of investors who purchased Newell stock between Feb. 6,
2017 and Jan. 24, 2018. The Plaintiff, a pension fund, alleges
that Newell and three of its key officers engaged in securities
fraud during the Class Period in violation of Sections 10(b) and
20(a) of the Securities Exchange Act of 1934 and Rule 10b-5
promulgated thereunder by the Securities Exchange Commission.
Defendant Newell is a corporation which manufacturers and markets
consumer products. In April 2016, it acquired Jarden Corp.,
another global consumer products company. Defendant Michael B.
Polk was the President and CEO of Newell at all relevant times.
Polk oversaw the Jarden acquisition and integration. When Newell
announced the deal with Jarden, Polk ensured investors that there
would be a seamless integration of the new organization with
strategic advantages including scale to grow, a broader portfolio,
and elimination of corporate costs. As to its financial results
and guidance, Newell used the terms "core sales growth" ("CSG"), a
non-GAAP financial measure, and "normalized earnings per share"
("NEPS").
The Plaintiff alleges that the Defendants issued and reaffirmed
false and misleading 2017 financial guidance to investors without a
reasonable basis. The crux of Plaintiff's case is that from
February 2017 through early September 2017, Newell predicted CSG
and NEPS growth that it was ultimately unable to achieve, with the
first negative news coming in November 2017.
The Plaintiff alleges three categories of alleged material
misstatements and omissions. The first category concerns Newell's
inventory. The Plaintiff claims that the Defendants misled
investors regarding high levels of inventory in Newell's retail
channel and an increasing trend of inventory "destocking" by
customers that was hurting Newell's sales growth and margins. The
second area concerns internal price conflicts. The Plaintiff
states that the Defendants failed to disclose pricing conflicts
between Newell's E-commerce and B&M divisions that was negatively
impacting Newell's growth and margins. The final category concerns
general operation and managerial problems. The Plaintiff claims
that the Defendants misled investors as to operational errors and
managerial issues between Newell and Jarden following the
acquisition.
The Plaintiff alleges that the Defendants violated various SEC
rules. First, it claims that the Defendant violated Item 303 of
Regulation S-K, titled "Management's discussion and analysis of
financial condition and results of operations" ("MD&A
disclosures"). Second, it alleges that the Defendants violated
Item 503 of Regulation S-K, which concerns "risk factors" according
to the Plaintiff. Third, the Plaintiff alleges that the Defendants
violated Item 307 of Regulation S-K, entitled "Disclosure controls
and procedures."
The Plaintiff alleges that throughout the Class Period, the
Defendants made numerous materially false and misleading statements
and omissions. It alleges that each of the Executive Defendants
acted with scienter in that each knew or recklessly disregarded
that their public statements were materially false and misleading;
knew that they would be disseminated publicly; and knowingly
participated or acquiesced in the issuance of such statements in
violation of federal securities laws. It notes that due to their
roles, each Executive Defendant was privy to confidential
information about Newell.
The Plaintiff filed its Complaint on June 21, 2018. It then filed
its first amended complaint (FAC) on Nov. 28, 2018. The FAC
alleges two Counts: (I) violation of Section 10(b) of the Exchange
Act and Rule 10b-5; and (II) violations of Section 20(a) of the
Exchange Act by the Executive Defendants.
The Defendants moved to dismiss, which the Plaintiff opposed, and
to which the Defendants replied. The Plaintiff filed a notice of
supplemental authority on Aug. 12, 2019, to which the Defendants
replied on Aug. 22, 2019. The Plaintiff filed a second notice of
supplemental authority on Nov. 7, 2019, to which theDefendants
replied on Nov. 22, 2019.
In Judge Vazquez's view, the Plaintiff fails to sufficiently plead
a Section 10(b) violation. As a result, the Section 20(a) claim
also fails. He permits the Plaintiff an additional opportunity to
replead consistent with the following analysis. The Plaintiff
first alleges violations of Section 10(b) and Rule 10b-5. He finds
that Count I of the FAC suffers from several pleading shortcomings
which fall generally into the following areas: (1) material
misrepresentations or omissions allegations, (2) PSLRA safe harbor
allegations, and (3) Items 303, 503, and 307 allegations.
The Judge finds that the Plaintiff has failed to adequately allege
a false representation of material fact or omission that makes a
disclosed statement materially misleading. Given that it has
failed to plausibly plead the first element of Count I, the Judge
does not reach the remaining requirements of a Section 10(b)
claim.
The Judge need not address the PSLRA safe harbor issues given that
the Plaintiff has not successfully pleaded its securities fraud
claim. However, many of the alleged statements in the FAC involve
forward-looking statements. The safe harbor provision of the PSLRA
immunizes any forward-looking statement from liability, provided
that the statement is identified as such and accompanied by
meaningful cautionary language; or is immaterial; or the plaintiff
fails to show the statement was made with actual knowledge of its
falsehood. The cautionary language appears to fit within the
parameters of the statutory safe harbor. The Judge, however, does
not make a definitive finding in this regard because he is granting
leave to amend. If the Plaintiff chooses to re-assert these claims
in an amended complaint, it must provide legal justification as to
why each Item it asserts provides a private cause of action or
otherwise properly supports a claim.
The Plaintiff also asserts claims for control person liability
against the Executive Defendants under Section 20(a). The three
elements to this claim are (1) the Defendant controlled another
person or entity; (2) the controlled person or entity committed a
primary violation of the securities laws; and (3) the Defendant was
a culpable participant in the fraud. Thus, liability under Section
20(a) is contingent upon sufficiently pleading an underlying
violation of Section 10(b) by the controlled person. Because the
Section 10(b) claim is dismissed for the reasons stated, the
Plaintiff's Section 20(a) claim -- Count II -- is also dismissed.
For the foregoing reasons, Judge Vazquez granted the Defendants'
motion to dismiss the Plaintiff's FAC without prejudice. The
Plaintiff will have 30 days to file an amended complaint, which
cures the deficiencies noted. If it does not do so, the matter
will be dismissed with prejudice.
A full-text copy of the Court's Dec. 10, 2019 Opinion is available
at https://is.gd/rKFDmw from Leagle.com.
HAMPSHIRE COUNTY COUNCIL as ADMINISTERING AUTHORITY of the
HAMPSHIRE COUNTY COUNCIL PENSION FUND, Movant, represented by CHAD
A. CARDER -- ccarder@barrack.com -- BARRACK, RODOS & BACINE,
JEFFREY B. GITTLEMAN -- jgittleman@barrack.com -- BARRACK, RODOS &
BACINE & ROBERT A. HOFFMAN -- jgittleman@barrack.com -- BARRACK,
RODOS & BACINE.
IRON WORKERS DISTRICT COUNCIL (PHILADELPHIA AND VICINITY)
RETIREMENT AND PENSION PLAN, Movant, represented by DAVID ANDREW
BOCIAN -- dbocian@ktmc.com -- KESSLER TOPAZ MELTZER & CHECK LLP.
Timothy Lopatofsky, Movant, represented by THOMAS W. ELROD --
telrod@kmllp.com -- KIRBY MCINERNEY LLP.
Electricity Pensions Trustee Limited as Scheme Trustee of the
Electricity Supply Pension Scheme & Construction Laborers Pension
Trust for Southern California, Movants, represented by JAMES E.
CECCHI -- jcecchi@carellabyrne.com -- CARELLA BYRNE CECCHI OLSTEIN
BRODY & AGNELLO, P.C.
Sheet Metal Workers 19 Pension Fund & Yong Ahn, Movants,
represented by LAURENCE M. ROSEN -- lrosen@rosenlegal.com -- THE
ROSEN LAW FIRM, PA.
Northeast Carpenters Benefit Funds, Movant, represented by DANIEL
S. SOMMERS -- dsommers@cohenmilstein.com -- COHEN, MILSTEIN,
SELLERS & TOLL, PLLC.
BUCKS COUNTY EMPLOYEES RETIREMENT FUND, Individually and on Behalf
of All Others Similarly Situated, Plaintiff, represented by JAMES
E. CECCHI, CARELLA BYRNE CECCHI OLSTEIN BRODY & AGNELLO, P.C.
NEWELL BRANDS, INC., MICHAEL B. POLK, RALPH J. NICOLETTI & JAMES
L.
CUNNINGHAM, III, Defendants, represented by ISRAEL DAHAN --
idahan@kslaw.com -- KING & SPALDING LLP.
NORTHBRIDGE COMPANIES: Blundo Sues Over Unlawful Community Fees
---------------------------------------------------------------
Francis Blundo and Sharon Blundo, on behalf of themselves and all
others similarly situated v. NORTHBRIDGE COMPANIES and NORTHBRIDGE
LAUREL WOOD ASSISTED LIVING, LLC, Case No. 1:19-cv-11663-FDS (Mass.
Cmmw., Jan. 27, 2020), seeks to recover damages, and to enjoin the
unfair, deceptive, and unlawful practices of the Defendants.
The Plaintiff alleges that the Defendants violated the security
deposit statute by charging and collecting impermissible up-front
fees, sometimes referred to as "Community Fees," at or before the
inception of residential residents' tenancies. The Plaintiffs
contend that these Community Fees have no particular connection to
costs for structures, services, or requirements distinct to
Assisted Living Residences. The Plaintiffs add that Northbridge
failed to properly handle their and putative class members'
security deposits, in violation of the security deposit statute.
The Plaintiffs contend that Northbridge implemented the unlawful
collection and handling of the funds of its elderly and infirm
residents in order to financially exploit the most vulnerable
members of society.
The Plaintiffs are residents of Plymouth, Massachusetts.
Northbridge owns assisted living facilities throughout New England
with numerous facilities in Massachusetts.[BN]
The Plaintiff is represented by:
Matthew T. LaMothe, Esq.
Brian P. McNiff, Esq.
FORREST, LaMOTHE, MAZOW, McCULLOUGH, YASI & YASI, P.C.
2 Salem Green, Suite 2
Salem, MA 01970
Phone: (617) 231-7829
Fax: (877) 599-8890
Email: mlamothe@forrestlamothe.com
bmcniff@forrestlamothe.com
NORWALK, CT: Conditional Certification of Collective Action Sought
------------------------------------------------------------------
In the class action lawsuit styled as HOPE COLES, on her own behalf
and on behalf of all those similarly situated, the Plaintiffs, v.
CITY OF NORWALK, NORWALK BOARD OF EDUCATION, and NORWALK PUBLIC
SCHOOLS DISTRICT, the Defendants, Case No. 3:19-cv-01436-JCH (D.
Conn.), the Plaintiff asks the Court to enter an Order:
1. permitting conditional certification of this collective
action; and
2. authorizing, under court supervision, notice to all
similarly situated employees who were employed by
Defendants.
The Plaintiff seeks to recover unpaid minimum wages or unpaid
overtime compensation under the Fair Labor Standards Act of 1938.
Norwalk is a U.S. city located in southwestern Connecticut. The
Norwalk City School District's Board of Education is an elected
board that oversees all operations of the District.[CC]
The Plaintiff is represented by:
Carlos Leach, Esq.
THE LEACH FIRM, P.A.
631 S. Orlando Ave., Suite 300
Winter Park, FL 32789
Telephone: (407) 574-4999
Facsimile: (833) 423-5864
E-mail: cleach@theleachfirm.com
- and -
Ryan Daugherty, Esq.
DAUGHERTY LAW GROUP, LLC.
P.O. Box 1131
Stamford, CT 06904
Telephone: (646) 859-1674
Facsimile: (203) 724-2394
E-mail:rdaugherty@daughertylawgroup.com
OCWEN LOAN: Court Denies Bid to Certify Class in Bess Suit
----------------------------------------------------------
In the case, NANCY BESS, Plaintiff, v. OCWEN LOAN SERVICING LLC,
Defendant, Case No. C15-5020 BHS (W.D. Wash.), Judge Benjamin H.
Settle of the U.S. District Court for the Western District of
Washington, Tacoma, denied both (i) Bess' motion for class
certification, and (ii) Ocwen's motion to exclude expert
testimony.
In 2000, Gary Bess purchased a single-family residence in Port
Orchard, Washington. In 2007, Gary Bess married Nancy Bess. Gary
Bess and Nancy Bess resided at the Bess residence.
In November 2007, Gary Bess obtained a mortgage loan from GMAC
Mortgage, LLC. The loan was secured by a Deed of Trust on the Bess
residence. Although Gary Bess is identified as the sole borrower
on the Deed of Trust, both Gary Bess and Nancy Bess executed the
Deed of Trust.
The Deed of Trust obligates the borrower to "pay when due the
principal of, and interest on, the debt evidenced by the Note and
any prepayment charges and late charges due under the Note." If
the borrower fails to comply with the Deed of Trust's provisions,
the lender or its successors and assigns may take certain actions
to secure the property.
On May 27, 2012, Gary Bess died intestate. Nancy Bess declared
that when her husband died, she became the sole owner of the Bess
residence. She declared that a few months later, she purchased a
small cabin, staying in the cabin occasionally and the Bess
residence regularly. The loan obligations for the Bess residence
became delinquent following Gary Bess' death.
Bess declared that on Oct. 29, 2013, Ocwen's vendor CoreLogic
changed the locks on the Bess residence. In deposition, Bess
testified that she changed the locks back within eight days and her
locks remained on the property from early November 2013 until
February or March 2014 when they were changed again. Bess declares
that she believes Ocwen charged her inspection and property
preservation fees each time it entered her home. She declares that
Ocwen initiated non-judicial foreclosure proceedings on March 7,
2014 and foreclosure was completed on July 29, 2014.
On Nov. 10, 2014, Bess filed a class action complaint against Ocwen
in the Kitsap County Superior Court for the State of Washington.
On Jan. 12, 2015, Ocwen removed the case to the Court. On Jan. 13,
2015, Ocwen filed a motion to dismiss, which the Court granted with
leave to amend on March 16, 2015.
On March 27, 2015, Bess filed her first amended complaint. Bess
alleged the following claims against Ocwen: (1) common law
trespass; (2) statutory trespass; (3) violation of RCW 7.28.230;
(4) violation of the Deed of Trust Act; (5) violations of the
Consumer Protection Act ("CPA"); (6) breach of contract; and (7)
unjust enrichment. On April 9, 2015, Ocwen filed a second motion
to dismiss, which the Court granted with leave to amend on June 1,
2015.
On June 9, 2015, Bess filed a notice of intent not to amend. On
June 18, 2015, the Court dismissed Bess' claims with prejudice. On
July 6, 2015, Bess filed a notice of appeal. On March 9, 2018, the
Ninth Circuit issued its memorandum disposition affirming in part,
reversing in part, and remanding, and on April 2, 2018, the Ninth
Circuit entered its mandate.
On March 15, 2019, Bess filed a motion to certify a class with the
following membership: All persons who own or owned real property in
Washington subject to a deed of trust or mortgage serviced or held
by Ocwen whose property Ocwen or its agents Altisource or CoreLogic
entered prior to the completion of a foreclosure sale and changed
one or more lock between Nov. 10, 2010 and July 7, 2016.
On June 7, 2019, Ocwen responded to the motion for class
certification. On June 28, 2019, the Court denied Ocwen's motion
to stay. On July 26, 2019, Bess replied to her motion for class
certification.
On July 31, Ocwen surreplied seeking to strike all testimony from
Bess's expert Dr. John A. Kilpatrick, which Bess submitted in
support of her motion for certification. On Aug. 9, 2019, Ocwen
filed a motion to exclude Kilpatrick's testimony from the class
certification record. On Aug. 26, 2019, Bess responded. On Aug.
29, 2019, Ocwen replied. On Nov. 21, 2019, Ocwen filed a notice of
supplemental authority.
Judge Settle concludes that though Kilpatrick appears to have
substantial credentials in his field, Bess fails to persuade the
Court that the methodology he proposes is sufficiently reliable as
a common methodology such that damages "could feasibly and
efficiently be calculated once the common liability questions are
adjudicated." Following the Ninth Circuit's instruction that the
appropriate consideration at certification is the weight and
persuasiveness of evidence, not its admissibility, the Court finds
Kilpatrick's methodology has little or no persuasive value but
denies Ocwen's motion to exclude. Giving Kilpatrick's proposed
methodology little or no weight, the Judge finds that Bess has
failed to show individual issues regarding the rental value of each
property would not predominate if the class were certified as
proposed. Therefore, he denies the motion to certify the class.
Accordingly, Judge Settle denied both (i) Bess' motion for class
certification, and (ii) Ocwen's motion to exclude expert
testimony.
A full-text copy of the Court's Jan. 8, 2020 Order is available at
https://is.gd/hojmxp from Leagle.com.
Nancy Bess, Plaintiff, represented by Clay M Gatens --
clayg@jdsalaw.com -- Honea Lee Lewis -- leel@jdsalaw.com -- at
JEFFERS DANIELSON SONN & AYLWARD; Michael Duane Daudt --
mdaudt@tmdwlaw.com -- at TERRELL MARSHALL DAUDT & WILLIE PLLC.
Ocwen Loan Servicing LLC, Defendant, represented by Brian M Forbes
-- brian.m.forbes@klgates.com -- Robert W Sparkes --
robert.sparkes@klgates.com -- Joanne M Hepburn --
joanne.hepburn@klgates.com -- at K&L GATES LLP.
OMAHA, NE: Court Narrows Claims in MOPOA Suit Over Housing Code
---------------------------------------------------------------
In the case, METROPOLITAN OMAHA PROPERTY OWNERS ASSOCIATION, INC.,
and ROOSEVELT LEE, Plaintiffs, v. THE CITY OF OMAHA, JEAN STOTHERT,
in her individual and official capacity; JAY DAVIS, in his
individual and official capacity; PAUL KRATZ, in his individual and
official capacity; JANE DOES, and JOHN DOES, Defendants, Case No.
8:19CV341 (D. Neb.), Judge Laurie Smith Camp of the U.S. District
Court for the District of Nebraska granted in part the Defendants'
Motion to Dismiss for Failure to State a Claim.
Plaintiff Metropolitan Omaha Property Owners Association, Inc.
("MOPOA") is a Nebraska non-profit corporation. It consists of
approximately 1,000 individuals and entities that own and operate
real property located in Omaha, Nebraska.
The Defendants include the City of Omaha and a list of city
officials, including Mayor Jean Stothert, Superintendent of Permits
and Inspections Jay Davis, City Attorney Paul Kratz, and unknown
Jane and John Does who the Plaintiffs anticipate are agents or
representatives of the City.
The action arises out of an earlier class action lawsuit in the
Court, in which MOPOA brought a number of claims regarding the
City's housing code. The parties settled that action, and the
Court adopted the terms of the settlement agreement through a
consent decree. The parties to the Consent Decree agreed to
certain amendments of the Omaha Municipal Code and established
standard operating procedures which were to serve as the official
policies of the City's Permits and Inspection Division.
On Nov. 17, 2015, the City adopted the Vacant and Abandoned
Property Ordinance ("VAPO"). The VAPO went into effect Dec. 2,
2015. The stated purpose of the VAPO is to establish a mechanism
to protect residential and non-residential neighborhoods from
becoming blighted through the lack of maintenance and security of
abandoned properties. The VAPO authorizes the Superintendent of
the City's Permits and Inspection Division to investigate
properties that may be abandoned, vacant, or neglected, as defined
by the VAPO, and to notify the responsible party of its obligation
to register the property under the VAPO.
A responsible party must complete the necessary maintenance and
security measures, such that the property no longer requires
registration, within 30 days of receiving notice from the City or
register the property pursuant to the VAPO. A registration fee of
$500, payable by the responsible party, is due at the time of
registration as well as an additional $500 for each 90-day period
during which the property is registered.
Plaintiff Roosevelt Lee is an African-American male who resides in
and owns real property in Omaha, Nebraska. Lee is a member of
MOPOA. He owns rental property in Omaha. In 2018, Lee's property
was registered as abandoned and/or vacant under the VAPO. The City
did not provide Lee with notice prior to his registration, give him
an opportunity to cure, or permit him to appeal or contest the
registration.
On Aug. 6, 2019, the Plaintiffs brought the action, on behalf of
themselves and a putative class, alleging seven claims for relief.
Count III alleges the VAPO is unlawful and unconstitutional because
it violates the Consent Decree, unjustly enriches the City, is
discriminatory toward, and has a disparate impact on, minorities,
and violates the due process clauses of the Fifth and Fourteenth
Amendments. Count V of the Complaint alleges the VAPO is
unconstitutional in its entirety, and that eight sections are
unconstitutional for numerous reasons. Count I of the Complaint
seeks an order from the Court finding the Defendants in contempt
for breaching the Consent Decree. Count II of the Complaint
alleges the VAPO is an unconstitutional tax under the Nebraska
Constitution. Count IV of the Complaint alleges that Defendants
violated the Fair Housing Act ("FHA"). Count VI alleges violation
of procedural due process. Plaintiffs' final claim for relief,
Count VII, alleges that the VAPO, and the City's enforcement
thereof, constitutes an unlawful taking under the Fifth Amendment
of the United States Constitution and Article I, section 21 of the
Nebraska Constitution.
The Plaintiffs allege, on behalf of themselves and a putative
class, seven claims for relief arising out of the City's enactment
of the VAPO. The Plaintiffs generally allege that these claims are
brought under 42 U.S.C. Sections 1981-1983, 1985, 3613; the Fourth,
Fifth, and Fourteenth Amendments to the United States Constitution;
and the Court's inherent power to enforce its own orders,
judgments, and decrees.
The Plaintiffs also generally allege that the Defendants should be
held liable both in their individual and official capacities as
coconspirators. They allege the VAPO constitutes a breach of the
Consent Decree, is an unlawful and unconstitutional tax, violates
the Fair Housing Act, is unconstitutional, deprives them of
procedural due process, and constitutes an unlawful taking without
just compensation.
On Sept. 27, 2019, the Defendants filed a Motion to Dismiss,
seeking dismissal of the Plaintiffs' action with prejudice. The
Defendants argue that the Complaint does not give sufficient notice
to the individual Plaintiffs of the claims against them. They
further argue that the Plaintiffs allege only conclusory legal
allegations and bring every conceivable claim against every
conceivable defendant in a "kitchen sink" or "shotgun" complaint.
Judge Camp granted in part and denied in part the Defendants'
Motion to Dismiss. All claims against Defendants Jean Stothert,
Jay Davis, Paul Kratz, Jane Does, and John Does are dismissed
without prejudice. Counts III, IV, V, and VII are dismissed,
without prejudice. Count VI, to the extent it alleges the VAPO
facially deprives the Defendants of due process, is dismissed
without prejudice. The Defendants' Motion to Dismiss is otherwise
denied.
Among other things, the Judge finds that Count I of the Complaint
states a plausible cause of action for breach of the Consent
Decree. First, the Plaintiffs refer to the Consent Decree
elsewhere in the Complaint and seem to argue that a violation of
the Consent Decree somehow implicates Section 1983. However, they
may not enforce the Consent Decree through Section 1983.
Therefore, the Plaintiffs are limited to enforcing the Consent
Decree through the motion for contempt.
Second, MOPOA negotiated the terms of the Consent Decree in
exchange for dismissing MOPOA I. Lee, a member of MOPOA and
representative of the putative class, has had the VAPO enforced
against him. His property was registered under the VAPO as
abandoned and/or vacant. Under the VAPO, a responsible party of a
registered property incurs a duty to pay $500 to the City or a lien
will be imposed on the registered property. Therefore, the
Plaintiffs have alleged standing to assert that the Defendants
breached the Consent Decree.
Third, the Judge finds that the provisions have been enforced
against Lee and other members of MOPOA. Lee's property has been
registered as abandoned and/or vacant, and as a result he has
incurred an obligation to pay $500 or suffer a lien on the
property.
As for Count II, the Judge finds that the Plaintiffs have plausibly
alleged the VAPO is an unconstitutional or unlawful tax. The
Plaintiffs allege the VAPO is, in effect, a tax on abandoned,
vacant, or neglected properties the City was without power to
enact. The VPRA explicitly applies only to villages and cities of
the first or second class. Omaha is a city of the metropolitan
class. Also, the Defendants argue the Legislature could have
preempted the City in the VPRA but chose not to. The Nebraska
Supreme Court has not allowed for such implied grants of
authority.
The Clerk is directed to amend the caption to remove Defendants
Jean Stothert, Jay Davis, Paul Kratz, Jane Does, and John Does.
A full-text copy of the Court's Dec. 10, 2019 Memorandum & Order is
available at https://is.gd/sQs4rb from Leagle.com.
Metropolitan Omaha Property Owners Association, Inc. & Roosevelt
Lee, Plaintiffs, represented by Jason M. Bruno, SHERRETS, BRUNO LAW
FIRM & Robert S. Sherrets, SHERRETS, BRUNO LAW FIRM.
The City of Omaha, Defendant, represented by Jennifer N. Taylor,
CITY OF OMAHA.
PALMCO ENERGY: Has Made Unsolicited Calls, Abramson Suit Claims
---------------------------------------------------------------
STEWART ABRAMSON, individually and on behalf of all others
similarly situated, Plaintiff v. PALMCO ENERGY PA L.L.C d/b/a INDRA
ENERGY, Defendant, Case No. 2:19-cv-01675-MJH (W.D. Pa., Dec. 30,
2019) seeks to stop the Defendants' practice of making unsolicited
calls.
Palmco Energy PA L.L.C d/b/a Indra Energy is a family owned and
operated energy supply company offering electricity and natural gas
to homes and businesses in several states. [BN]
The Plaintiff is represented by:
Clayton S. Morrow, Esq.
MORROW & ARTIM, PC
304 Ross Street, 7th Floor
Pittsburgh, PA 15219
Telephone: (412) 281-1250
E-mail: csm@consumerlaw365.com
- and -
Anthony I. Paronich
PARONICH LAW, P.C.
350 Lincoln Street, Suite 2400
Hingham, MA 02043
Telephone: (508) 221-1510
E-mail: anthony@paronichlaw.com
PAPA JOHN'S: DeSalvo Sues Alleging Violation of Disabilities Act
----------------------------------------------------------------
A class action lawsuit has been filed against Papa John's USA. The
case is captioned as Brett DeSalvo, individually and on behalf of
all others similarly situated v. Papa John's USA, Inc. and DOES 1
to 10, inclusive, Case No. 2:20-cv-00171-ODW-MAA (C.D. Cal., Jan.
7, 2020).
The case is assigned to the Hon. Judge Otis D. Wright, II.
The suit alleges violation of the Americans with Disabilities Act,
demanding $5 million in damages.
Papa John's was founded in 1993. The company's line of business
includes owning or leasing franchises, patents, and copyrights,
which they in turn license others to use.[BN]
The Plaintiff is represented by:
Babak Bobby Saadian, Esq.
Thiago Merlini Coelho, Esq.
WILSHIRE LAW FIRM
3055 Wilshire Boulevard, 12th Floor
Los Angeles, CA 90010
Telephone: (213) 381-9988
Facsimile: (213) 381-9989
E-mail: bobby@wilshirelawfirm.com
thiago@wilshirelawfirm.com
PEP BOYS: Al Zinnah Seeks to Recover Unpaid Wages and Deductions
----------------------------------------------------------------
Sikder Al Zinnah, Individually, and on behalf of all others
similarly situated v. Pep Boys-Manny, Moe & Jack of Delaware, Inc.,
Case No. 701394/2020 (N.Y. Sup., Queens Cty., Jan. 27, 2020), is
brought to recover the Plaintiff's unpaid wages and unlawful wage
deductions pursuant to the New York Labor Law.
According to the complaint, the Plaintiff worked approximately
45-50 or more hours a week for the Defendant but the Defendant
failed to pay the Plaintiff and all those similarly situated class
members all their wages, including overtime and non-overtime wages.
The Defendant also failed to display federal and state minimum
wage/overtime posters as required by NYLL, says the complaint.
Plaintiff Al Zinnah was employed by the Defendant from June 2019 to
September 12, 2019.
The Defendant was engaged in the business of servicing and
repairing automobiles.[BN]
The Plaintiff is represented by:
Abdul K. Hassan, Esq.
ABDUL HASSAN LAW GROUP, PLLC
215-28 Hillside Avenue
Queens Village, NY 11427
Phone: 718-740-1000
Fax: 718-740-2000
Email: abdul@abdulhassan.com
POCH PERSONNEL: Faces Samuels Employee Class Suit in California
---------------------------------------------------------------
A class action lawsuit has been filed against Poch Personnel Inc.,
et al. The case is captioned as Virginia Samuels, On Behalf of
Herself and All Others Similarly Situated v. Poch Personnel Inc., a
Michigan Corporation; Midwest Construction Services Inc., a
Michigan Corporation; Poch Staffing Inc., a Michigan Corporation;
and Trillium Driver Solutions Inc., a Michigan Corporation; and
Does 1-10, Case No. 34-2020-00272496-CU-OE-GDS (Cal. Super,
Sacramento Cty., Jan. 3, 2020).
The case alleges violation of employment-related laws.
The Defendants provide staffing services.[BN]
The Plaintiff is represented by:
Kane Moon, Esq.
MOON & YANG, APC
1055 W 7th St., Suite 1880
Los Angeles, CA 90017-2529
Telephone: (213) 232-3128
Facsimile: (213) 232-3125
E-mail: kane.moon@moonyanglaw.com
POLK COUNTY, FL: Class Cert. Bid in Conrad Case's Suit Denied
-------------------------------------------------------------
In the class action lawsuit styled as CONRAD CASE, on behalf of
himself and all others similarly situated, the Plaintiff, v. GRADY
JUDD, in his official capacity as Polk County Sheriff, the
Defendant, Case No. 8:19-cv-00607-VMC-TGW (M.D. Fla.), the Hon.
Judge Virginia Hernandez Covington entered an order on Jan. 28,
2020, denying Plaintiff's Rule 23 motion for class certification.
The Court says, "Given the peculiar situation in which Case only
worked the equivalent of 31 workweeks (less than 8 months) over a
16-year period, Case's situation would not be representative of the
class. Case fails to satisfy the requirements of Rules 23(a) and
(b): adequate representation."
Mr. Case initiated this putative class action on March 11, 2019,
alleging Sheriff Judd violated the Uniformed Services Employment
and Reemployment Act by denying him and other class members
promotions due to their military service, and by denying veteran
preferences under Florida Statutes.[CC]
PREMIER AUTOMOTIVE: Marazzito Sues Over Unknown Documentary Fees
----------------------------------------------------------------
DANIEL MARAZZITO, on behalf of themselves and all others similarly
situated v. PREMIER AUTOMOTIVE GROUP LLC and FERNANDO COSTA, Case
No. MID-L-000106-20 (N.J. Super., Middlesex Cty, Jan. 6, 2020),
arises from the Defendants' practice of inflating vehicle sale
prices by adding an unitemized and unspecified "Documentary fee" to
the total price charged for its vehicles, in violation of the
Automotive Sales Practices Regulation and the Consumer Fraud Act.
On October 3, 2019, the Plaintiff went to Premier Automotive'
dealership in Belleville, New Jersey, and purchased a used 2004
Jeep Liberty. Premier Automotive provided the Plaintiff with a form
called the "Retail Buyer's Order." The Retail Buyer's Order is a
form used in the car dealership industry to disclose the total
price of the vehicle being sold, and the components of the total
price, such as options, dealership fees, motor vehicle fees, and
sales tax. The Retail Buyer's Order form used by Premier Automotive
includes a pre-printed line item labeled "Documentary fee."
The Plaintiff contends that the Defendants have adopted the
practice of adding a charge of $199 or more to the total price of
vehicles sold at retail, described as a "Documentary fee" in the
sales documents, without further specification or itemization. The
Plaintiff asserts that because the Defendants failed to specify
each actual documentary service charged in exchange for the
purported "Documentary fee," they were prohibited by the ASP
Regulation from charging the fee, and that the Plaintiff and all
other consumers, who were charged these prohibited fees, suffered
ascertainable loss in the amount charged.
The action seeks treble damages on behalf of the Plaintiff and
other consumers, who were charged the Defendants' prohibited
"Documentary fee." The action also seeks statutory damages of not
less than $100 on behalf of the Plaintiff and the putative class
members pursuant to the Truth-in-Consumer Contract, Warranty and
Notice Act.
Premier Automotive operates a car dealership located at 372
Washington Ave., in Belleville, New Jersey. Mr. Costa, is the owner
and principal of Premier Automotive.[BN]
The Plaintiff is represented by:
Andrew R. Wolf, Esq.
WOLF LAW FIRM, LLC
1520 U.S. Hwy 130, Suite 101
North Brunswick, NJ 08920
Telephone: (732) 545-7900
Facsimile: (732) 545-1030
E-mail: awolf@wolflawfirm.net
- and -
Henry P. Wolfe, Esq.
LAW OFFICE OF HENRY P. WOLFE LLC
17A Joyce Kilmer Ave. N
New Brunswick, NJ 08901-1951
Telephone: (732) 325-3500 tel
E-mail: henry@wolfeconsumerlaw.com
PRO TREE: Court Approves Settlement in Hernandez Suit
-----------------------------------------------------
In the class action lawsuit styled as Francisco Hernandez, the
Plaintiff, v. Pro Tree Service, Inc., et al., the Defendants,
Case No. 1:18−cv−04503 (N.D. Ill.), the Hon. Judge Jeffrey Cole
entered an order granting a motion for approval of the Parties'
stipulation of settlement, according to the docket entry made by
the Clerk.
As reported by the Class Action Reporter, the Defendant has agreed
to fund a Total Settlement Amount of $78,500.
The Plaintiff alleges violation of the Fair Labor Standards Act,
the Illinois Minimum Wage Law, the Illinois Wage Payment and
Collection Act, for Defendants' failure to pay Plaintiff and other
similarly situated employees at time and a half their regular rate
for all time worked in excess of 40 hours in individual work
weeks.[CC]
Attorney for the Plaintiff is:
Christopher J. Williams, Esq.
NATIONAL LEGAL ADVOCACY NETWORK
53 W. Jackson Blvd., Suite 1224
Chicago, IL 60604
Pro Tree provides tree trimming, tree removal, land clearing, and
more to Chicago and the surrounding suburbs.[CC]
PROSHARES TRUST: Court Dismisses Second Amended Securities Suit
---------------------------------------------------------------
Judge Denise Cote of the U.S. District Court for the Southern
District of New York granted the Defendants' motion to dismiss the
Plaintiffs' Second Amended Complaint ("SAC") in IN RE PROSHARES
TRUST II SECURITIES LITIGATION, Case No. 19cv0886 (DLC) (S.D.
N.Y.).
SVXY is a derivative financial product that loses value when stock
market volatility rises and gains value when the market is calm.
On Feb. 6, 2018, the New York Stock Exchange ("NYSE") halted
trading for several hours in SVXY. When trading resumed in the
late morning, the SVXY share price had suffered a sharp drop. The
putative class action is brought on behalf of investors who
purchased or otherwise acquired SVXY shares between May 15, 2017
and Feb. 6, 2018. The Plaintiffs principally assert that a May 15,
2017 Registration Statement and related filings for the SVXY Fund
contained material omissions.
ProShares Trust II is a Delaware statutory trust that manages
investment funds with combined assets of $29 billion. Among the
investment funds managed by ProShares are inverse and leveraged
exchange-traded funds ("ETFs"). The SAC alleges that ProShares is
one of the world's largest managers of these types of ETFs.
During the Class Period, the Fund's declared "investment objective"
was to achieve results that corresponded to the inverse (-1x) of
the daily performance of the VIX Short-Term Futures Index. For
example, if the VIX Short-Term Futures Index decreased by 5% on a
given day due to low market volatility, the Fund's investment
objective was to increase by 5% that same day. Purchasing SVXY
shares allowed investors to hedge investment risk and diversify
investment portfolios.
The SAC asserts five causes of action: (1) that all the Defendants
are liable under Section 11 of the Securities Act of 1933, for
distributing a materially misleading registration statement; (2)
that the ProShares Defendants are liable as control persons under
Section 15 of the Securities Act, in connection with the Section 11
violations; (3) that the ProShares Defendants committed fraud in
violation of Section 10(b) of the Securities Exchange Act of 1934,
and Rule 10b-5 promulgated thereunder; (4) that the ProShares
Defendants are liable as control persons under Section 20(a) of the
Exchange Act, in connection with the Section 10(b) violations; and
(5) that the ProShares Defendants violated Items 303 and 105 of
Regulation S-K.
On Sept. 27, 2019, the Defendants moved to dismiss the Plaintiffs'
SAC pursuant to Rule 12(b)(6), Fed. R. Civ. P. This motion became
fully submitted on November 1. The Defendants argue that the
heightened pleading requirements applicable to the Plaintiffs'
Section 10(b) claim also should apply to their Section 11 claim,
because it is "grounded in fraud."
Judge Cote finds that it is not necessary to determine which
standard should be used to review the Plaintiffs' Section 11 claim.
The Section 11 claim fails regardless of which standard applies.
The Registration Statement discloses the primary omission alleged
by the Plaintiffs -- that the late-afternoon rebalancing of the
Fund's portfolio could cause illiquidity in the VIX futures
contract market. The Registration Statement makes clear that
"substantially all" of the Fund's assets were invested in VIX
futures contracts. It explains that these assets can be "highly
volatile" and that the Fund could "experience large losses when
buying, selling, or holding such instruments." It further warns
that this volatility could result in an "adverse impact" beyond the
impact of "any performance-based losses of the underlying indexes."
The SAC's allegations of other deficiencies also fail. First, the
Registration Statement explains that potential losses could result
from rebalancing occurring between 4:00 and 4:15 p.m. Second, the
Plaintiffs' argument that the Registration Statement is misleading
for not disclosing that losses could occur in a matter of "minutes"
fails on account of the described disclosures. Third, their
argument that the Registration Statement failed to adequately warn
investors that losses would not necessarily correspond to the
inverse of the VIX Short-Term Futures Index is unpersuasive.
Finally, the Plaintiffs' argument regarding the table estimating
losses over one year fails, too. The warning suffices to alert
investors that market illiquidity could cause "significantly" worse
returns than what is shown in the table. No reasonable investor
reading the Registration Statement would understand otherwise.
Turning to Section 10(b) of the Exchange Act, the Judge finds that
the Registration Statement adequately warns that the degree of risk
could change over time depending on liquidity in the VIX futures
contracts. The SAC does not adequately plead that there was a duty
to update the Registration Statement, as it already disclosed
precisely what the Plaintiffs allege was omitted -- that the degree
of risk could increase over time.
Finally, as to the Items 303 and 105 of Regulation S-K, the Judge
finds that events that are not reasonably likely to be material
under Item 303 are not among the most significant factors rendering
an offering speculative or risky under Item 105. Also, the
Registration Statement included "ample warning" of the risks.
For the foregoing reasons, Judge Cote granted the Defendants' Sept.
27, 2019 motion to dismiss. The Clerk of Court will close the
case.
A full-text copy of the Court's Jan. 3, 2020 Opinion & Order is
available at https://is.gd/n1Eu0J from Leagle.com.
David A. Ford, Individually and on Behalf of All Others Similarly
Situated, Plaintiff, represented by David Avi Rosenfeld --
DRosenfeld@rgrdlaw.com -- Robbi ns Geller Rudman & Dowd LLP &
Samuel Howard Rudman -- SRudman@rgrdlaw.com -- Robbins Geller
Rudman & Dowd LLP.
Great Point Capital LLC, Movant, represented by Adam M. Apton --
aapton@zlk.com -- Levi & Korsinsky, LLP & Nicholas Ian Porritt,
Levi & Korsinsky, LLP.
Kershner Trading Group, LLC, Movant, represented by Barbara J. Hart
-- bhart@lowey.com -- Lowey Dannenberg P.C.
Emre Enginarlar & Dibyendu Basu, Movants, represented by Jeremy
Alan Lieberman -- jalieberman@pomlaw.com -- Pomerantz LLP, Eitan
Kimelman, Bronstein, Gewirtz & Grossman & Peretz Bronstein,
Bronstein, Gewirtz & Grossman.
Thomas Butler, III, Anthony Ludovici & Lisa Ludovici, Movants,
represented by Danielle Suzanne Myers, Robbins Geller Rudman & Dowd
LLP, Avital Orly Malina, Robbins Geller Rudman & Dowd LLP, David
Avi Rosenfeld, Robbins Geller Rudman & Dowd LLP, Erin Whitney
Boardman, Robbins Geller Rudman & Dowd LLP, Lucas E. Gilmore,
Hagens Berman Sobol Shapiro LLP, Magdalene Economou, Robbins Geller
Rudman & Dowd LLP, Reed R. Kathreine, Hagens Berman Sobol Shapiro
LLP, Steve W. Berman, Hagens Berman Sobol Shapiro LLP & Vincent
Michael Serra, Robbins Geller Rudman & Dowd LLP.
Fei Liu & Stacy Smith, Movants, represented by Danielle Suzanne
Myers, Robbins Geller Rudman & Dowd LLP, David Avi Rosenfeld,
Robbins Geller Rudman & Dowd LLP, Reed R. Kathreine, Hagens Berman
Sobol Shapiro LLP, Steve W. Berman, Hagens Berman Sobol Shapiro LLP
& Vincent Michael Serra, Robbins Geller Rudman & Dowd LLP.
ProShares Trust II, ProShare Capital Management LLC, Todd B.
Johnson, Edward Karpowicz, Michael L. Sapir & Louis M. Mayberg,
Defendants, represented by Robert A. Skinner --
Robert.Skinner@ropesgray.com -- Ropes & Gray LLP, Amy D. Roy --
Amy.Roy@ropesgray.com -- Ropes & Gray LLP, Elissa C. Reidy --
Elissa.Uspensky@ropesgray.com -- Ropes & Gray LLP & Jessica M.
Bergin -- Jessica.Bergin@ropesgray.com -- Ropes & Gray LLP.
ABN AMRO Clearing Chicago LLC, Banca IMI Securities Corp., Barclays
Capital Inc., BNP Paribas Securities Corp., Credit Suisse
Securities (USA) LLC, Deutsche Bank Securities Inc., Goldman, Sachs
& Co., HRT Financial LLC, Jefferies LLC, J.P. Morgan Securities
LLC, Knight Execution & Clearing Services, LLC, Merrill Lynch
Professional Clearing Corp., Mizuho Securities USA LLC, Nomura
Securities International, Inc., RBC Capital Markets, LLC, SG
Americas Securities, LLC, Timber Hill, LLC, UBS Securities LLC,
Virtu Financial BD LLC & Wedbush Securities, Inc., Defendants,
represented by Adam Selim Hakki, Shearman & Sterling LLP, Agnes
Dunogue, Shearman & Sterling LLP & Daniel Craig Lewis, Shearman &
Sterling LLP.
Leon Fidel, Defendant, represented by Jeremy Alan Lieberman,
Pomerantz LLP, Eitan Kimelman, Bronstein, Gewirtz & Grossman &
Peretz Bronstein, Bronstein, Gewirtz & Grossman.
QUANTUM GLOBAL: $126K Taafu Suit Deal Denied Initial Court Approval
-------------------------------------------------------------------
In the case, PANIANI TAAFUA, an individual, on behalf of himself
and others similarly situated, Plaintiff, v. QUANTUM GLOBAL
TECHNOLOGIES, LLC, Defendant, Case No. 18-cv-06602-VKD (N.D. Cal.),
Magistrate Judge Virginia K. DeMarchi of the U.S. District Court
for the Northern District of California, San Jose Division, denied
the motion for preliminary approval of class settlement.
On Oct. 30, 2018, Plaintiff Taafua filed the action for himself,
and on behalf of a putative class, for alleged violations of the
Fair Credit Reporting Act ("FCRA"), based on a disclosure form used
by Defendant Quantum Global Technologies ("QGT") that reportedly
included an extraneous liability waiver. Mr. Taafua is asserting
two claims for relief based on alleged violation of FCRA, 15 U.S.C.
Section 1681b(b)(2)(A)(i) and Section 1681b(b)(2)(A)(ii).
The complaint defines the putative class as follows: All persons in
the United States who signed a background check form as
administrated by First Contact HR that included an authorization
and a liability release clause at any time during the period
beginning five years prior to the filing of this Complaint and
ending on the date as determined by the Court.
The complaint seeks statutory damages, punitive damages, attorney's
fees, costs, and such other and further relief as the Court deems
just and equitable.
The Court held an initial case management conference in the matter
on Feb. 5, 2019. Shortly afterward, QGT moved to transfer the case
pursuant to 28 U.S.C. Section 1404(a), for the convenience of the
parties and in the interest of justice, to the U.S. District Court
for the Eastern District of Pennsylvania. Mr. Taafua opposed that
motion, and that matter was fully briefed. However, on May 9,
2019, just prior to the noticed motion hearing, the parties advised
that they reached a settlement.
For settlement purposes, the class period begins on Oct. 30, 2013
(i.e., five years prior to the filing of Mr. Taafua's complaint)
and ends on Dec. 31, 2018. Additionally, the scope of the putative
class has been narrowed to QGT applicants and/or employees who were
the subject of a consumer report procured, or caused to be
procured, by QGT: all individuals who applied for employment with
and/or were employed by the Defendant in the United States and were
the subject of a consumer report that was procured by the Defendant
or caused to be procured by the Defendant through third-party
consumer reporting agency First Contact HR during the Class
Period.
The proposed settlement is non-reversionary and contemplates a
release of claims in return for a total payment of $125,902. From
the $125,902 Global Settlement Fund, the parties anticipate that
$16,000 will be paid to cover settlement administration costs.
Additionally, Mr. Taafua's attorneys seek an award of approximately
33.33% of the Global Settlement Fund, or $41,967.33, plus $3,000 in
costs, for a total of $44,967.33. Mr. Taafua also requests a
$5,000 service award.
The remaining $59,934.67 is to be distributed to an estimated class
of 1,0415 members as to whom 1,476 consumer reports were obtained.
The amount of each individual payment will equal the Net Settlement
Fund divided by the number of consumer reports obtained for the
Settlement Class Members. The number of reports obtained for each
member may vary, and individual members may be entitled to more or
less money, depending on the number of reports that were obtained
for that individual. Settlement checks that are not cashed within
180 days of issuance will be void.
Any unclaimed portion of the Global Settlement Fund will be given
as a cy pres award to the Education Fund of the National
Association of Consumer Advocates ("NACA"), identified in the
moving papers as a non-profit organization.
The Settlement Agreement provides that the Global Settlement Fund
may be increased at QGT's discretion, if (as verified by the
settlement administrator) the number of consumer reports QGT
procured increases more than 5% over the original estimate of
1,476. However, the Settlement Agreement also provides that Mr.
Taafua has the option to terminate the settlement if QGT declines
to increase the Global and/or Net Settlement Fund.
Additionally, if (as verified by the settlement administrator) the
number of putative class members increases more than 5% beyond the
current estimate, then no increase in the Global Settlement Fund is
contemplated. However, QGT agrees to pay for any resulting
increase in the settlement administrative costs.
After discussing two potential third party settlement
administrators, and using a bid process, the parties agreed to use
JND Legal Administration, which submitted a lower bid.
Mr. Taafua now moves for preliminary approval of the settlement.
QGT does not oppose the motion. The Court held a hearing on the
motion on Aug. 27, 2019. Pursuant to the Court's order, the
parties subsequently submitted supplemental briefing on certain
issues.
According to Judge De Marchi, she is unable to preliminarily
approve the class settlement because Mr. Taafua has not
demonstrated that the putative class can be certified under Rule 23
or that the proposed settlement is fair, reasonable and adequate.
Thus, his motion for preliminary approval is denied.
The Judge set a further case management conference for Feb. 4, 2020
at 1:30 p.m. to discuss further proceedings and any necessary
modifications to the current case management schedule. The parties
were directed to file a joint case management statement no later
than Jan. 28, 2020.
A full-text copy of the Court's Jan. 8, 2020 Order is available at
https://is.gd/sNQaDC from Leagle.com.
Paniani Taafua, Plaintiff, represented by Kelsey M. Szamet,
Kingsley and Kingsley, APC, Emil Davtyan, Davtyan Professional Law
Corporation, Eric B. Kingsley, Kingsley & Kingsley, APC & Liane
Katzenstein Ly, Kingsley & Kingsley, APC.
Quantum Global Technologies, LLC, Defendant, represented by Melinda
S. Riechert -- melinda.riechert@morganlewis.com -- Morgan Lewis &
Bockius LLP, Aleksandr Markelov --
aleksandr.markelov@morganlewis.com -- Morgan, Lewis and Bockius LLP
& Andrew Paul Frederick -- andrew.frederick@morganlewis.com --
Morgan, Lewis & Bockius LLP.
RECEIVABLES PERFORMANCE: Zurakov Files Placeholder Class Cert. Bid
------------------------------------------------------------------
In the class action lawsuit styled as CINDY ZURAKOV, Individually
and on Behalf of All Others Similarly Situated, the Plaintiff, v.
RECEIVABLES PERFORMANCE MANAGEMENT, LLC, the Defendant, Case No.
2:20-cv-00128-JPS (E.D. Wisc.), the Plaintiff has filed a
"placeholder" motion for class certification in order to prevent
against a "buy-off" attempt, a tactic class-action defendants
sometimes use to attempt to prevent a case from proceeding to a
decision on class certification by attempting to "moot" the named
plaintiff's claims by tendering the plaintiff individual (but not
classwide) relief.
The Plaintiff asks the Court for an order to certify class, appoint
Plaintiff as the class representative, and appoint Plaintiff's
attorneys as class counsel.
In Campbell-Ewald Co. v. Gomez, 136 S. Ct. 663, 672 (2016), the
Supreme Court held "an unaccepted settlement offer or offer of
judgment does not moot a plaintiff's case," and "a would-be class
representative with a live claim of her own must be accorded a fair
opportunity to show that certification is warranted." The Sixth
Circuit applied Campbell-Ewald in an unreported opinion in Family
Health Chiropractic, Inc. v. MD On-Line Sols., Inc., No. 15-3508,
2016 WL 384823, at (6th Cir. Feb. 2, 2016).
In Wilson v. Gordon, F.3d 934, 949-50 (6th Cir. 2016), the Sixth
Circuit held that, even where "[the parties [did] not dispute that
all eleven named plaintiffs' individual claims became moot before
the district court certified the class," the "picking-off"
exception applied and allowed the named plaintiffs with moot
individual claims to pursue class certification, which would
"relate back" to the filing of the complaint, applying Deposit
Guar. Nat'l Bank v. Roper, 445 U.S. 326, 339 (1980). The Sixth
Circuit held this ruling was consistent with Campbell-Ewald, 136 S.
Ct. at 672, which refused to put defendants "in the driver's seat"
on class certification.[CC]
The Plaintiff is represented by:
John D. Blythin, Esq.
Mark A. Eldridge, Esq.
Jesse Fruchter, Esq.
Ben J. Slatky, Esq.
ADEMI & O'REILLY, LLP
3620 East Layton Avenue
Cudahy, WI 53110
Telephone: (414) 482-8000
Facsimile: (414) 482-8001
Email: jblythin@ademilaw.com
meldridge@ademilaw.com
jfruchter@ademilaw.com
bslatky@ademilaw.com
ROUSSELOT PEABODY: Facility Emits Noxious Odors, Baranofsky Says
----------------------------------------------------------------
MICHAEL BARANOFSKY, KIMBERLEY GALE, LAWRENCE ESSEMBER on behalf
of themselves and all others similarly situated v. ROUSSELOT
PEABODY INC., Case No. 20CV14A (Mass. Super., Essex Cty., Jan 3,
2020), seeking monetary and injunctive relief for property damage
involving thousands of putative class members caused by the
Defendant's nuisance, negligence, gross negligence, and trespass.
Rousselot owns and operates a gelatin manufacturing facility
located in Peabody, Massachusetts. Through its operation of the
facility, the Defendant allegedly released, and continues to
release, noxious odors that invade the Plaintiffs' property,
causing property damage through nuisance, negligence, gross
negligence, and trespass.
The Plaintiffs contend they and members of the putative class
suffer from physical discomfort because of the Defendant's noxious
odors, including nausea, vomiting, and headaches. The foul odors
emitted from the Plant are offensive, would be offensive to a
reasonable person of ordinary health and sensibilities, and have
caused property damage, including by interfering with the ability
of Plaintiffs and the Class to use and enjoy their homes and
property. The invasion of the Plaintiffs' property and that of the
Class by noxious odors has reduced the value of that property and
has interfered with the use and enjoyment of that property,
resulting in damages, says the complaint.
The Plaintiffs are citizens of the Commonwealth of Massachusetts,
Essex County.[BN]
The Plaintiffs are represented by:
William Doyle, Esq.
COLONNA & DOYLE
26 Main Street, 3rd Floor
Lynnfield, MA 01940
Telephone: (781) 245-11271
Facsimile: (781) 245-1148
E-mail: bill@colonna-doyle.com
- and -
Steven D. Liddle, Esq.
Laura Sheets, Esq.
Matthew Z. Robb, Esq.
LIDDLE & DUBIN PC
975 E. Jefferson Avenue
Detroit, MI 48207-3101
Telephone: (313) 392-0015
Facsimile: (313) (313) 392-0025
E-mail: sliddle@ldclassaction.com
lsheets@ldclassaction.com
mrobb@ldclassaction.com
RUST-OLEUM CORP: Garrard Sues Over Efficacy of Restore Products
---------------------------------------------------------------
Allen Garrard, individually and on behalf of all others similarly
situated v. RUST-OLEUM CORPORATION, Case No. 1:20-cv-00612 (N.D.
Ill., Jan. 27, 2020), arises from the Defendant's marketing and
sale of Rust-Oleum Restore products, specifically Rust-Oleum Deck
Start Wood Primer, Restore 2X One Coat Solid Stain, and Restore 4X
Deck Coat.
Rust-Oleum sold Restore Products to Missouri consumers for the
purpose of resurfacing wooden structures, but the Company
misrepresented, omitted, and concealed material information
concerning the efficacy of Restore Products, including (1) Restore
Products are more prone to chipping, peeling, and flaking than
comparable wood resurfacing products; (2) Restore Products do not
last longer than comparable products and, instead, they deteriorate
more quickly than comparable products; and (3) Restore Products do
not provide enhanced protection that is superior to comparable
products despite a premium price charged for Restore Products,
according to the complaint.
The Plaintiff contends that Rust-Oleum has concealed and omitted
material facts relating to the Restore Products in violation of the
law and to the detriment of consumers. The Plaintiff adds that
Rust-Oleum charges a premium for its products, consumers pay
enhanced prices for Restore Products, and that consumers have not
received the benefit of their bargain in that they have not
received the product they purchased.
The Plaintiff purchased his Restore Products in the State of
Missouri, and suffered damages as a result of Rust-Oleum's alleged
conduct within Missouri.
Rust-Oleum Corporation is an Illinois corporation with its
principal place of business in Vernon Hills, Illinois. Rust-Oleum
Corporation is owned by RPM International, Inc.[BN]
The Plaintiff is represented by:
Trent B. Miracle, Esq.
Eric Johnson, Esq.
SIMMONS HANLY CONROY
100 N. Sepulveda Blvd., Suite 1350
Los Angeles, CA 90245
Phone: (310) 322-3555
Email: tmiracle@simmonsfirm.com
ejohnson@simmonsfirm.com
- and -
Mitchel M. Breit, Esq.
Jay Barnes, Esq.
SIMMONS HANLY CONROY
112 Madison Avenue
New York, NY 10016-7416
Phone: (212) 784-6400
Email: mbreit@simmonsfirm.com
jaybarnes@simmonsfirm.com
- and -
Matthew L. Dameron, Esq.
Amy R. Jackson, Esq.
WILLIAMS DIRKS DAMERON LLC
1100 Main Street, Suite 2600
Kansas City, MO 64105
Phone: (816) 945-7110
Fax: (816) 945-7118
Email: matt@williamsdirks.com
amy@williamsdirks.com
SAN LUIS OBISPO, CA: Faces Okun Civil Rights Suit in C.D. Calif.
----------------------------------------------------------------
A class action lawsuit has been filed against the County of San
Luis Obispo, et al. The case is captioned as Douglas Charles Okun,
individually and on behalf of a Class of Persons similarly situated
v. County of San Luis Obispo; San Luis Obispo Probation Office;
James Salio, Chief Probation Officer; Arnold Nelson, Probation
Officer; James Macias, Probation Officer; and Does 1 through 10,
inclusive, Case No. 2:20-cv-00178-PA-GJS (C.D. Cal., Jan. 7,
2020).
The case is assigned to the Hon. Judge Percy Anderson.
The suit alleges violation of Civil Rights Act.
San Luis Obispo is a county in Central California.[BN]
The Plaintiff is represented by:
Jeffrey R. Stein, Esq.
STEIN-CONWAY LAW FIRM, PC
1119 Palm St.
San Luis Obispo, CA 93401
Telephone: (805) 748-5243
- and -
Bruce W. Nickerson, Esq.
BRUCE W. NICKERSON LAW OFFICES
231 Manor Dr.
San Carlos, CA 94070
Telephone: (650) 594-0195
Facsimile: (650) 596-0595
E-mail: brucenic@pacbell.net
SANDERSON FARMS: 2nd Cir. Upholds Dismissal of Gamm Securities Suit
-------------------------------------------------------------------
In the case, GORDON GAMM, INDIVIDUALLY AND ON BEHALF OF ALL OTHERS
SIMILARLY SITUATED, DON PRITCHARD, Plaintiffs-Appellants, v.
SANDERSON FARMS, INC., JOE F. SANDERSON, JR., MICHAEL D. COCKRELL,
LAMPKIN BUTTS, Defendants-Appellees, Docket No. 18-0284-cv (2d.
Cir.), the U.S. Court of Appeals for the Second Circuit affirmed
the district court's dismissal of the Appellants' complaint under
Fed. R. Civ. P. 12(b)(6).
The case is one of several shareholder suits brought against
chicken producers following the wave of antitrust suits and
accompanying stock price drops. The complaint alleged as a basis
for a securities fraud class action suit, that appellees, producers
of chicken, engaged in an illegal antitrust conspiracy, the
non-disclosure of which rendered various SEC filings false and
misleading under Section 10(b) of the Securities Exchange Act of
1934 and Rule 10b-5 promulgated thereunder.
On Oct. 28, 2016, the Appellants filed a putative class action in
the Southern District of New York on behalf of all persons who
purchased Sanderson Farms shares between Dec. 17, 2013 and Nov. 17,
2016. On Feb. 13, 2017, Appellants Gamm and Don Pritchard were
appointed as the Lead Plaintiffs, and Pomerantz LLP was appointed
the lead counsel. On March 30, 2017, the Appellants filed an
amended complaint.
On May 18, 2017, at a conference before Judge Berman, the counsel
for the parties set a briefing schedule for a motion to dismiss and
response. Judge Berman, pursuant to his individual practices,
requested that the parties submit pre-motion letters. The court
explained to the Appellants that, through the pre-motion letters,
appellants would be able to determine appellees' "bases" for
dismissal, and amend their complaint a second time, accordingly.
However, it cautioned that any second amended complaint would be
the last amendment, stating, that if the Appellants were to lose
the motion to dismiss, the court would not provide further leave to
amend.
Pre-motion letters were submitted on May 25 and June 1, 2017. On
June 15, 2017, the Appellants filed a second amended complaint,
alleging that Appellee Sanderson and its CEO Joe F. Sanderson, Jr.,
CFO Michael D. Cockrell, and COO Lampkin Butts violated Section
10(b) of the Exchange Act and Rule 10b-5 promulgated thereunder, as
well as Section 20(a) of the Exchange Act, by making statements
that were materially false and misleading because they failed to
disclose material adverse information and misrepresented the truth
about Sanderson Farms' finances and business prospects.
The Appellees moved to dismiss for failure to adequately plead the
elements of securities fraud on June 29, 2017. On Jan. 19, 2018,
the district court granted the Appellees' motion to dismiss with
prejudice. Observing that the case was "strikingly similar" to the
suit against Tyson Foods, Inc., the district court concluded that
because the Plaintiffs fail to support their allegation of a
chicken supply reduction conspiracy with particularized facts, they
had not properly alleged a Section 10(b) violation. The case was
timely appealed.
The Second Circuit holds that the Appellants have failed to plead
the first element of antitrust conspiracy agreement at even a basic
level, much less with particularity. Furthermore, on the second
and third elements of an antitrust conspiracy, they have provided
no allegations. The complaint is entirely silent as to whether the
supply reductions or the Georgia Dock manipulations unreasonably
restrained trade, and whether that restraint affected interstate
commerce. The complaint merely attempts to establish fraud by
innuendo, and accordingly, its pleadings are insufficient.
In view of his disposition of the matter, the Second Circuit need
not reach the issues of scienter, reliance, or control person
liability under Section 20 of the Exchange Act.
For the foregoing reasons, the Second Circuit holds that when a
securities fraud complaint claims that statements were rendered
false or misleading through the nondisclosure of illegal activity,
the facts of the underlying illegal acts must be pleaded with
particularity in accordance with the requirements of Rule 9 and the
PSLRA. Because the Appellants have failed to meet this pleading
standard for the underlying allegations of illegal antitrust
conspiracy, their complaint was deficient. Accordingly, the Second
Circuit affirmed.
A full-text copy of the Second Circuit's Dec. 10, 2019 Opinion is
available at https://is.gd/6LJTCd from Leagle.com.
TAMAR A. WEINREB -- taweinrib@pomlaw.com -- (Marc I. Gross --
migross@pomlaw.com -- Jeremy A. Lieberman -- jalieberman@pomlaw.com
-- Pomerantz LLP, New York, NY, on the brief) for
Plaintiffs-Appellants.
JOSHUA Z. RABINOVITZ -- joshua.rabinovitz@kirkland.com -- (Robert
J. Kopecky -- robert.kopecky@kirkland.com -- Nathaniel J. Kritzer
-- nathaniel.kritzer@kirkland.com -- Stacy Pepper --
stacy.pepper@kirkland.com -- Kirkland & Ellis LLP, Chicago, IL and
New York, NY, on the brief) for Defendants-Appellees.
SEIU LOCAL 668: First Amended Wenzig Suit Dismissed With Prejudice
------------------------------------------------------------------
Judge Malachy E. Mannion of the U.S. District Court for the Middle
District of Pennsylvania granted the Defendant's motion to dismiss
the first amended complaint in JANINE WENZIG and CATHERINE
KIOUSSIS, Plaintiffs, v. SERVICE EMPLOYEES INTERNATIONAL UNION
LOCAL 668, Defendant, Civil Action No. 1:19-1367 (M.D. Pa.),
The Plaintiffs bring the civil rights action pursuant to 42 U.S.C.
Section 1983. They are both employed by the Commonwealth of
Pennsylvania. Wenzig is employed by the Department of Human
Services as a Licensing Supervisor and Kioussis is an Income
Maintenance Supervisor. SEIU is a labor union with its
headquarters in Harrisburg, Pennsylvania, and it is the exclusive
representative for several bargaining units in the state, including
the Plaintiffs' bargaining unit.
As members of the bargaining unit represented by SEIU, the
Plaintiffs received the benefits of the Collective Bargaining
Agreement ("CBA") between SEIU and Pennsylvania. However, even
though they were not members of SEIU, they allege that the union
was legally allowed to collect fair share fees from them under
Pennsylvania's Public Employee Fair Share Fee Law, since it
represented them in collective bargaining. Under state law, SEIU
negotiated with the state for the collection of fair share fees
from nonmembers, including the Plaintiffs.
Under the CBA, prior to June 27, 2018, all employees in the
collective bargaining units who were represented by SEIU and who
were not union members, such as the Plaintiffs, were forced to pay
"fair-share fees" to SEIU as a condition of their public
employment. The Plaintiffs further allege that before June 27,
2018, government employers covered by the CBA deducted fair share
fees from them and other nonmembers' wages without their consent
and, transferred those funds to SEIU, which collected those funds.
The Plaintiffs also allege that as of 2018, agency fees were
assessed by SEIU at 0.85% of an employee's gross income; union
member paid dues of 1.39% of gross income. As such, the Plaintiffs
aver that SEIU should have known that its seizure of fair share
fees from non-consenting employees likely violated the First
Amendment.
The Plaintiffs also seek to bring the case as a class action under
Fed.R.Civ.P. 23(b)(3) for themselves and for all others similarly
situated. They define the proposed class as all current and former
employees from whom SEIU collected fair share fees pursuant to its
collective bargaining agreement with the Commonwealth of
Pennsylvania.
The Plaintiffs raise one claim in their first amended complain
(FAC), namely, a First Amendment claim. Specifically, they allege
that SEIU violated their and the class members' First Amendment
rights to free speech and association, as secured against state
infringement by the Fourteenth Amendment to the United States
Constitution and 42 U.S.C. Section 1983, by requiring the payment
of fair share fees as a condition of employment and by collecting
such fees.
As relief, the Plaintiffs request declaratory judgment, pursuant to
28 U.S.C. Section 2201(a), declaring that SEIU violated the
Plaintiffs' and the class members' constitutional rights by
compelling them to pay fair share fees as a condition of their
employment and by collecting fair-share fees from them without
consent. Additionally, they seek monetary damages in the full
amount of fair share fees and assessments seized from their wages,
as well as costs and attorneys' fees under 42 U.S.C. Section 1988.
The Plaintiffs are proceeding on her FAC filed on Oct. 28, 2019.
On Nov. 5, 2019, SEIU filed its motion to dismiss the Plaintiffs'
FAC. On Nov. 19, 2019, the Plaintiffs filed their brief in
opposition. SEIU filed its reply brief on Dec. 3, 2019.
The Defendant's motion seeks dismissal of the case for failure to
state a claim upon which relief may be granted pursuant to
Fed.R.Civ.P. 12(b)(6). SEIU contends that the Plaintiffs' First
Amendment claims against it, in the putative class action, for
retrospective monetary relief under 42 U.S.C. Section 1983 should
be dismissed since it relied in good faith on the formerly valid
Pennsylvania law and longstanding United States Supreme Court
precedent that allowed it to collect fair-share fees from
public-sector employees who were not members of the union.
Judge Mannion concurs with the numerous cases which have found that
unions, such as SEIU, that collected fair-share fees from
nonmembers prior to Jamus v. AFSCME, and pursuant to state law and
Abood v. Detroit Board of Education, can assert the good-faith
defense to Section 1983 liability for the First Amendment claims
raised by the Plaintiffs. Thus, he will grant SEIU's motion and
dismiss with prejudice the Plaintiffs' First Amendment claims
seeking to hold the union retrospectively liable under Section
1983. Based on the foregoing, he finds futility in allowing the
Plaintiffs leave to file a second amended complaint.
The Plaintiffs next contend that even if SEIU acted in good faith
in receiving fair-share fees, it could not have a good faith belief
that if Abood was overruled, it could keep the fair-share fees that
it previously collected. Thus, they assert that they have an
equitable claim for the return of the fair-share fees SEIU
collected from them before Jamus. SEIU counters that the
Plaintiffs have no equitable claim for the return of the fees they
paid prior to Janus.
The Judge concurs with the courts in Diamond v. Pa. State Educ.
Ass'n and Hartnett v. Pennsylvania State Education Association, and
holds that the Plaintiffs' claim for declarative judgment is moot
based on Jamus and, based on the undisputed fact that SEIU stopped
collecting fair-share fees from state non-union member employees,
including the Plaintiffs, following the Janus decision.
Also, as in Diamond, the Judge finds that the voluntary-cessation
exception to the mootness doctrine does not apply in the case since
the circumstances of the case make it clear that the undisputedly
wrongful behavior -- the collection of fair-share fees -- is not
reasonably likely to recur after Jamus' changing of the law and the
reason that SEIU stopped collecting fair-share fees from public
employees in Pennsylvania. Indeed, complying with a Supreme Court
decision cannot be considered voluntary cessation. As such,
compliance with an intervening Supreme Court decision does not
implicate the voluntary-cessation exception to the mootness
doctrine. Thus, the Judge will grant SEIU's motion and dismiss
with prejudice the Plaintiffs' request for declaratory judgment
under 28 U.S.C. Section 2201.
Based on the foregoing reasons, Judge Mannion granted the Rule
12(b)(6) motion to dismiss the Plaintiffs' FAC filed by SEIU, and
dismissed with prejudice the Plaintiffs' First Amendment claims and
request for declaratory judgment. Further, the case will be
closed.
A full-text copy of the Court's Dec. 10, 2019 Memorandum is
available at https://is.gd/Isl0Qa from Leagle.com.
Janine Wenzig, Plaintiff, represented by Brian K. Kelsey, Liberty
Justice Center, pro hac vice, Charles O. Beckley, II, Beckley &
Madden, Jeffrey M. Schwab -- jschwab@libertyjusticecenter.org --
Liberty Justice Center, Reilly Stephens, Liberty Justice Center,
pro hac vice & William L. Messenger, National Right to Work
Foundation, pro hac vice.
Catherine Kioussis, Plaintiff, represented by Brian K. Kelsey,
Liberty Justice Center, pro hac vice, Charles O. Beckley, II,
Beckley & Madden, Reilly Stephens, Liberty Justice Center, pro hac
vice & William L. Messenger, National Right to Work Foundation, pro
hac vice.
Service Employees International Union Local 668, Defendant,
represented by Lauren M. Hoye -- lhoye@wwdlaw.com -- Willig,
Williams & Davidson, Scott A. Kronland --
skronland@altshulerberzon.com -- Altshuler Berzon LLP & P. Casey
Pitts -- cpitts@altshulerberzon.com -- Altshuler Berzon LLP.
SHASTA ENTERPRISES: Underpays Exotic Dancers, Addison Alleges
-------------------------------------------------------------
MARI ADDISON, individually and on behalf of all others similarly
situated, Plaintiff v. SHASTA ENTERPRISES, INC. D/B/A NIGHT TRIPS,
Defendant, Case No. 4:19-cv-00718-TCK-FHM (N.D. Okla., Dec. 30,
2019) seeks to recover from the Defendants unpaid wages and
overtime compensation, interest, liquidated damages, attorneys'
fees, and costs under the Fair Labor Standards Act.
The Plaintiff Addison was employed by the Defendant as exotic
dancer.
Shasta Enterprises, Inc. d/b/a Night Trips operates a gentlemen's
club in Tulsa, Oklahoma. [BN]
The Plaintiff is represented by:
Jeffrey A. Taylor, Esq.
5613 North Classen Boulevard
Oklahoma City, OK 73118
Telephone: (405) 286-1600
Facsimile: (405) 842-6132
- and -
Gregg C. Greenberg, Esq.
ZIPIN AMSTER & GREENBERG, LLC
8757 Georgia Avenue, Suite 400
Silver Spring, MD 20910
Telephone: (301) 587-9373
E-mail: GGreenberg@ZAGFirm.com
SIRENS: $600K Settlement in Hogan Suit Gets Prelim. Approval
------------------------------------------------------------
In the case, JESSICA HOGAN, et al., Plaintiffs, v. CLEVELAND AVE
RESTAURANT INC. d/b/a SIRENS, et al., Defendants, Case No.
2:15-CV-2883 (S.D. Ohio), Judge Algenon L. Marbley of the U.S.
District Court for the Southern District of Ohio, Eastern Division,
granted (i) the Plaintiff's Motion for Preliminary Approval of
Class Action Settlement; (ii) the Defendant's Separate Motion for
Preliminary Approval of Class Action Settlement; (iii) the Joint
Motion for Leave to File Under Seal Class Member Claim Distribution
Protocol; and (iv) the Plaintiff's Unopposed Motion to File the
Parties' Joint Proposed Claim Form for Entertainer Subclass
Members.
Sirens is a Columbus-area strip club. The Plaintiffs allege that
the individual Defendants (Chad Sullivan, Francis Sharrak, Michael
Sharrak, Dominick Alkammo, and Jay Nelson) are Sirens' owners,
managers, or other individual employers, as defined by wage and
hour laws. Jessica Hogan is a former Sirens bartender. She also
occasionally worked there as an exotic dancer. Ms. Hogan worked at
Sirens from approximately August 2013 until June 10, 2015. DeJha
Valentine is a former Sirens exotic dancer. She worked at Sirens
from approximately October 2015 until the summer of 2017.
The Plaintiffs bring claims on behalf of two subclasses of Sirens'
workers -- bartenders and entertainers. Each subclass has separate
claims.
Plaintiff Hogan brings several claims on behalf of herself and
similarly situated bartenders. First, she alleges that Sirens
overcharged the bartenders to process credit card tips. Second,
Hogan alleges that Sirens required bartenders who performed three
or more dances in a night to tip out non-tipped employees,
including security guards and disc jockeys. Third, Hogan alleges
that Sirens required bartenders to use their tips to pay Sirens for
any drawer shortages or overages. Fourth, Hogan alleges that
Sirens required bartenders to purchase uniforms and outfits to work
at the club, and that because Sirens paid the bartenders tipped
minimum wage, these purchases necessarily dropped the bartenders'
wages below minimum wage. Fifth, Hogan alleges that Sirens
required bartenders to attend mandatory, unpaid company meetings.
The Plaintiffs contend that the first three pay policies violate
the FLSA's tip credit requirements, and that if Hogan proved any
one of these violations, she and her fellow bartenders would be
entitled to the difference between full minimum wage and the tipped
minimum wage that Sirens paid. If Hogan proved that Sirens
unlawfully required her and other bartenders to purchase uniforms,
Sirens could be liable for the cost of the uniforms. Finally, if
Hogan proved that Sirens required employees to work off-the-clock
by attending mandatory, unpaid company meetings, Sirens would be
liable for those unpaid wages. Both the FLSA and Ohio law allow
prevailing workers to also recover additional damages and
attorney's fees.
Both Plaintiffs bring straightforward claims on behalf of Sirens'
entertainers. Instead of the club paying the entertainers to work
there, it is undisputed that the club charged entertainers various
fees and rent to work at Sirens. Like many clubs in Ohio, Sirens
enshrined this practice in a document called a lease agreement and
referred to the practice as the tenant system or the entertainer
tenant system.
Although the lease agreement outlines Sirens' pay practices, it is
the practices, not the agreement itself, that give rise to the
Plaintiffs' claims. In other words, the Plaintiffs contend it does
not matter whether someone signed the agreement. What matters,
they contend, is that a woman worked for Sirens and was not paid
for her work -- a policy Sirens concedes that it applied to all
entertainers. Sirens also applied these practices to employees who
occasionally danced, like Plaintiff Hogan.
If the Plaintiffs proved that Sirens' practices violated the law,
the entertainers would be entitled to full minimum wage for every
hour they worked, plus additional FLSA and Ohio law damages,
attorney's fees, and costs.
A subclass of entertainers also raised spoliation claims against
Sirens. The Plaintiffs raised those claims in two contexts,
sanctions and the Ohio tort of spoliation. The Court already
granted the Plaintiffs' sanctions request, which the Sirens
Defendants moved to reconsider. The spoliation claim would be left
for trial or summary judgment, absent the settlement. Although no
specific monetary allocation is made for these claims, they will be
released by the settlement.
The settlement encompasses both monetary and non-monetary relief
for the entertainer subclass. The Defendants purport to have fixed
their pay practices with respect to the bartenders, so the
Agreement provides the bartenders with only monetary relief.
Sirens has agreed to pay a total of $600,000 to settle the
Plaintiffs' claims. This amount is inclusive of fees, service
awards, and most costs. The Plaintiffs contend that Sirens paid
the vast majority of its workers nothing for the relevant time
frame, about 6.5 years. Payroll records for entertainers do not
exist, thus, the Plaintiffs are left to guess at the potential
damages. Still, they contend this might provide a reasonable
estimate: 20 entertainers at any one time × 20 hours worked per
week per entertainer × 52 weeks per year × 6.5 years ×
approximate minimum wage of $8.20 = $1,108,640 in unpaid wages.
The damages do not stop there, however, because Ohio wage law and
the FLSA impose additional multipliers on unpaid wages. If
combined, the Plaintiffs contend that those multipliers would add
another $3,325,920 in liquidated/additional damages and that Ohio's
Prompt Pay Act could add even more ($200 per person per pay
period). Their antitrust claims also include damages multipliers.
None of this accounts for the fees and rent the Plaintiffs and the
Entertainer Subclass members paid to the Defendants, which would
act as a negative wage and, thus, would also be recoverable (with
FLSA/Ohio multipliers), in the Plaintiffs' view, if the case were
to go forward. The ultimate result, the Plaintiffs contend, is a
potential judgment of around $10 million.
To determine what Sirens could pay, the Plaintiffs employed a
third-party forensic accounting firm, GBQ Consulting, LLC. Rebekah
Smith, who led GBQ's team on the case, provided a list of items she
needed to evaluate Sirens' financial position. Sirens produced the
requested items. Smith and her team thoroughly reviewed those
items and, with Sirens' permission, entered Sirens' business to
observe operations. Her evaluation informed the subsequent
settlement negotiations. In light of the information she provided,
the Plaintiffs' counsel believe the settlement is fair and
reasonable.
From the $600,000, the Defendants will pay bartenders who file
claims 1.5 times their unpaid wages calculated as the difference
between full minimum wage and the tipped minimum wage. The claims
period (and hence the release) would be limited to Oct. 6, 2012 to
Dec. 3, 2015, the date the Defendants claim to have ceased keeping
10% of the bartenders' tip money.
If every eligible bartender filed a claim, they would be owed
approximately $60,000 in unpaid wages, or $90,000 under the
settlement. There are approximately 15 eligible bartenders whose
claims are at issue. Unlike the situation with entertainers, the
Defendants kept records of the bartenders' wages and hours, so
calculating the amounts due is a straightforward exercise.
After any bartenders who file claims are paid, the remainder of the
$600,000 fund (again after fees, costs, etc.) will be divided among
all entertainers who file claims based on the amount of weeks each
worked. As the Court is aware, the Defendants' recordkeeping with
respect to entertainers poses a problem when it comes to
identifying, notifying, and paying these class members.
Accordingly, the parties have agreed on a number of provisions
aimed at remedying this issue.
First, the parties have agreed on a robust notice process
consisting of the following:
a. The Plaintiffs will transmit by regular mail and email a
class notice and claim form to any entertainer for which Defendants
have contact information.
b. The Plaintiffs will establish a website that will include a
copy of the Notice and Claim Form. Entertainers will be able to
complete the claim form by electronic signature. The Class Counsel
may also post links to that website on their own webpages and
social media pages.
c. The Plaintiffs will create a Facebook page with links to
the Notice and Claim Form. They will promote either the page
itself or a relevant post on the page to individuals in Ohio who
have expressed an interest in Sirens.
d. The Entertainers can submit claims for up to one year.
Second, the parties have agreed to a two-step process for verifying
entertainers' claims. This is described in the Agreement and a
motion to be filed under seal.
Third, every entertainer who files a qualifying claim will receive
a submission payment of $85 (which also is the minimum payment
level for all entertainers). This payment is an advance on any
other award they could receive. The purpose of the payment is to
encourage class participation and transfer money into the
entertainers' hands as quickly as possible.
In addition to the monetary relief described, the Settlement
Agreement affords entertainers substantial non-monetary relief.
First, within 14 days of the Court's preliminary approval of the
Agreement, the Defendants will begin to allow entertainers to
choose whether to be employees or independent contractors. If an
entertainer chooses to be an employee, then the Defendants will
comply with all wage and hour laws with respect to that person.
Although the Agreement allows Defendants to give entertainers a
choice, the Agreement does not shield Defendants from future
claims; the Defendants still would be legally responsible if they
misclassify an entertainer as a non-employee.
Second, if any of the Class Counsel is granted an injunction
against any other Ohio strip club regarding the entertainer tenant
system, or obtains comparable, non-monetary relief via a
settlement, then the Defendants will be required to comply with the
terms of that injunction or settlement within 24 months. The
purpose for the delay is to give Defendants a benefit for settling
now and to keep them from incurring a competitive disadvantage
relative to the Defendants' non-settling industry peers.
Third, if Defendants Sullivan or Alkammo become owners of a club,
they are restricted from engaging in various activities like using
an entertainer tenant system, blacklisting entertainers, or
colluding with clubs to classify entertainers as non-employees.
This restriction lasts for a year.
The parties' Proposed Settlement Agreement would award the
Plaintiff's counsel $200,000 in attorneys' fees, amounting to
one-third of the total settlement amount as well as litigation
expenses. The Court will make a final determination as to the
award at the final approval stage. The Plaintiffs' counsel is
directed to submit a tally of all hours spent on this matter as
well as the total for litigation expenses at that time. The
Plaintiffs propose incentive awards of $15,000 to Ms. Hogan and
$10,000 to Ms. Valentine.
Judge Marbley (i) is satisfied that the Proposed Settlement
Agreement is not an attempt to negotiate around the FLSA's
mandatory requirements of compensating employees for unpaid wages;
(ii) the proposed FLSA settlement is fair, reasonable, and
adequate; and (iii) finds that incentive awards are appropriate in
light of the factors listed by the Plaintiff.
The Judge approved the proposed notices. The Court will conduct
two fairness hearings for approval of the entertainer and bartender
classes. The first fairness hearing for the bartender class will
take place on July 16, 2020 at 9:00 a.m. The second fairness
hearing for the entertainer class will take place on Jan. 27, 2021
at 9:00 a.m.
The parties argue that it is necessary to file the distribution
protocol under seal to avoid the possibility that false claims and
incorrect and unfair distributions are made. They have narrowly
tailored their request to file under seal to only the distribution
protocol. Since the parties have demonstrated a need to ensure
that the settlement funds are fairly allocated, the Judge finds
that the public's interest in disclosure of the distribution
protocol is outweighed by the need to ensure the settlement fund is
properly distributed. The parties may submit this protocol under
seal.
Finally, the Plaintiffs have also submitted to the Court for
approval the parties' proposed claim form for the entertainer
subclass. The Judge approved this proposed claim form.
For the reasons stated, Judge Marbley granted the Plaintiff's
Motion for Preliminary Approval, and the Defendant's Separate
Motion for Preliminary Approval. He also granted the parties'
Joint Motion for Leave to File Under Seal, and the Plaintiff's
Unopposed Motion to File the Parties' Joint Proposed Claim Form.
A full-text copy of the Court's Dec. 10, 2019 Opinion & Order is
available at https://is.gd/9NsCJW from Leagle.com.
Jessica Hogan, Plaintiff, represented by Andrew Biller --
abiller@msdlegal.com -- Markovits, Stock & DeMarco, LLC, Andrew P.
Kimble -- akimble@msdlegal.com -- Markovits, Stock & DeMarco, LLC,
Jennifer J. Morales -- jmorales@msdlegal.com -- Markovits, Stock &
DeMarco, LLC, Paul M. De Marco -- pdemarco@msdlegal.com --
Markovits, Stock & DeMarco, LLC & Rachel S. Bloomekatz --
rachel@guptawessler.com -- Gupta Wessler PLLC.
Dejha Valentine, Plaintiff, represented by Andrew Biller,
Markovits, Stock & DeMarco, LLC &Andrew P. Kimble, Markovits, Stock
& DeMarco, LLC.
Cleveland Ave Restaurant, Inc., doing business as Sirens, Chad
Sullivan, Francis Sharrak, Michael Sharrak, Dominick Alkammo & Jay
Nelson, Defendants, represented by Christina Louise Corl --
ccorl@plunkettcooney.com -- Plunkett Cooney & Neil Rockind, Rockind
Law, pro hac vice.
Buckeye Association of Club Executives & Owners Coalition,
Defendants, represented by Anthony R. Cicero --
tonycicero@gocicero.com -- & Luke Lirot, Law Office of Luke Lirot,
P.A.
NL Corp. Inc., Movant, represented by Scott K. Jones --
sjones@graydon.law -- Graydon, Head & Ritchey, LLP & Daniel J.
Knecht -- dknecht@graydon.law -- Graydon Head & Ritchey LLP.
Thirty-Eight Thirty, Inc., Movant, represented by Jonathan Bernard
Freeman, Altick & Corwin.
LL Entertainment LLC, Foresome Entertainment Inc. & Nolan
Enterprises Inc., Movants, represented by Charles William Klausman,
IV, Klausman Law Ltd..
SIRIUS XM: Dismissal Notice in Sheridan Infringement Suit Rejected
------------------------------------------------------------------
In the case, ARTHUR SHERIDAN, et al., Plaintiffs, v. SIRIUS XM
RADIO, INC., et al., Defendants, Case No. 15-cv-04081-VC (N.D.
Cal.), Judge Vince Chhabria of the U.S. District Court for the
Northern District of California denied the Plaintiff's notice of
dismissal.
Typically, a plaintiff may dismiss a case without court approval
prior to the defendant's filing of an answer or a motion for
summary judgment. Because the case was filed as a putative class
action, however, the parties must submit a request for dismissal
that explains why dismissal will not prejudice the unnamed class
members whose claims are not being resolved. Accordingly, the
Court rejected the Plaintiff's notice of dismissal. The parties
are directed to consult the Court's Civil Standing Order and submit
a request for dismissal.
A full-text copy of the Court's Dec. 13, 2019 Order is available at
https://is.gd/rJ1ZC2 from Leagle.com.
Arthur Sheridan, an individual & Barbara Sheridan, an individual,
individually and on behalf of all others similarly situated,
Plaintiffs, represented by Anthony Lewis Abner --
tonyabner@gmail.com -- Abner & Fullerton LLP, John Michael
DeStefano, III -- johnd@hbsslaw.com -- Hagens Berman Sobol Shapiro
LLP, pro hac vice, Robert B. Carey -- rob@hbsslaw.com -- Hagens
Berman Sobol Shapiro LLP, pro hac vice, Steve W. Berman --
steve@hbsslaw.com -- Hagens Berman Sobol Shapiro LLP, pro hac vice
& Jeff D. Friedman, Hagens Berman Sobol Shapiro LLP.
Sirius XM Radio, Inc., a Delaware corporation, Defendant,
represented by Daniel M. Petrocelli -- dpetrocelli@omm.com --
OMelveny & Myers LLP, Cassandra Lan Seto -- cseto@omm.com -- & Evan
Thomas Mayor -- Evan.Mayor@disney.com.
Pandora Media, Inc., a Delaware corporation, Defendant, represented
by Andrew Michael Gass -- andrew.gass@lw.com -- Latham & Watkins
LLP, James K. Lynch -- jim.lynch@lw.com -- Latham & Watkins LLP &
Brittany Nichole Lovejoy -- brittany.lovejoy@lw.com -- Latham &
Watkins LLP.
SPRINGPOINT SENIOR: Faces Duffy Suit Over Consumer Fraud Scheme
---------------------------------------------------------------
Susan Duffy, as Executrix of the Estates of Donald H. Duffy and
Theta I. Duffy, deceased, individually, and in such capacities and
on behalf of all others similarly situated v. Springpoint Senior
Living, Inc., Springpoint at Monroe, Inc., Springpoint at
Stonebridge at Montgomery, Inc. Springpoint at Crestwood,
Springpoint at Meadow Lakes, Inc., Springpoint at Monroe Village,
Inc., and Springpoint at Navesink Harbor, Inc., Case No.
MID-L-000577-20 (N.J. Super., Middlesex Cty., Jan. 27, 2020),
arises out of the Defendants' alleged consumer fraud scheme
directed at one of New Jersey's most vulnerable populations--its
senior citizens.
The lawsuit seeks money damages and injunctive relief based upon
the Defendants' fraudulent and deceitful misrepresentations,
fraudulent and deceitful omissions and other marketing misconduct
that violated the New Jersey Continuing Care Retirement Community
Regulation and Financial Disclosure Act, the New Jersey Consumer
Fraud Act, and/or the common law of New Jersey.
According to the complaint, the Defendants conceived of and
executed a deceptive scheme whereby they made misleading
statements, through their marketing and sales materials, to senior
citizens and their families, including the Plaintiff, that the
Defendants' monthly fees are fixed, when in fact, the Defendants
offered discounts off the monthly fees as a matter of practice, but
did not disclose this fact in these marketing and sales materials.
As a result of this practice, senior citizens and their families,
including the Plaintiff, were deceived into believing that the
monthly fees charged by the Defendants could not be discounted,
when in fact, they could and surreptitiously were, says the
complaint.
The Plaintiff and the class are residents of the Defendants' Monroe
Village Health Care Center and Monroe Village Independent Living
Community.
Springpoint is in the business of owning, managing, and promoting
senior citizen living facilities in New Jersey.[BN]
The Plaintiffs are represented by:
Christopher M. Placitella, Esq.
COHEN, PLACITELLA & ROTH, P.C.
127 Maple Avenue
Red Bank, NJ 07701
Phone: (732)747-9003
- and -
Carl J. Mayer Esq.
MAYER LAW GROUP LLC
174 Nassau Street, Suite 414
Princeton, NJ 08542-1040
Phone: (609)921-0253
STATE FARM: Stuart Insurance Suit Deal Gets Prelim. Approval
------------------------------------------------------------
In the case, JAMES STUART and CAREDA L. HOOD, individually and on
behalf of all others similarly situated, Plaintiffs v. STATE FARM
FIRE AND CASUALTY COMPANY, Defendant, Case No. 4:14-cv-4001 (W.D.
Ark.), Judge Susan O. Hickey of the U.S. District Court for the
Western District of Arkansas, Texarkana Division, granted
Plaintiffs Stuart and Hood's Agreed Motion for Preliminary Approval
of Class Action Settlement.
The Plaintiffs, on behalf of themselves and as the Representative
Plaintiffs, on behalf of a proposed Settlement Class, and the
Defendant, all acting by and through their respective counsel, have
agreed, subject to Court approval, to settle the litigation upon
the terms and conditions stated in the Stipulation of Settlement
filed with the Court. On Dec. 16, 2019, the Court held a hearing
on the motion.
Judge Hickey preliminarily approved the Stipulation and Proposed
Settlement as fair, adequate, and reasonable, and granted the
Plaintiffs' motion for preliminary approval of the Proposed
Settlement in all material respects, subject to further
consideration at the Final Approval Hearing.
Contingent upon final approval of the Proposed Settlement, and
pursuant to Federal Rule of Civil Procedure 23, Judge Hickey
granted the Plaintiffs' motion for to conditionally certify the
litigation Class previously certified herein for settlement
purposes.
She conditionally certified, for settlement purposes only, the
following Settlement Class: All persons and entities that received
"actual cash value" payments, directly or indirectly, from State
Farm for loss or damage to a dwelling or other structure located in
the State of Arkansas, such payments arising from events that
occurred between May 1, 2010 and Dec. 6, 2013, where the cost of
labor was depreciated.
The Judge preliminarily enjoined the Representative Plaintiffs and
any Class Member who has not opted out from instituting,
maintaining, prosecuting, suing, asserting or cooperating in any
action or proceeding, whether new or existing, against any of the
Released Persons for any of the Released Claims.
JND Legal Administration Co. is appointed to serve as third-party
administrator for the Proposed Settlement and to perform such
duties as may be ordered by this Court pursuant to the terms of the
Stipulation. All notices concerning the Proposed Settlement
required by the Class Action Fairness Act of 2005 have been sent.
The Parties have prepared the Class Notice, Claim Form, Publication
Notice, and Postcard Notice, which have been submitted to the
Court. The counsel for the Parties, along with the Administrator,
are authorized to complete any missing information and to make any
non-substantive revisions to these documents, as necessary to
fulfill the purposes of the Settlement.
Within 30 days after entry of the Order, the Administrator will
send a copy of the Class Notice and a Claim Form by first-class
mail to the last known address for each potential Class Member,
according to State Farm's business records (previously provided to
the Administrator) and the National Change of Address database, as
used by the Administrator previously in the case to mail litigation
class notice to the potential Class Members.
The Administrator will use its best efforts to complete the mailing
of the Class Notice and Claim Form to the potential Class Members
not less than 90 days prior to the Final Approval Hearing. If any
Class Notice and/or Claim Form mailed to any potential Class Member
is returned to the Administrator as undeliverable, the
Administrator will promptly log each returned Class Notice and/or
Claim Form that is returned as undeliverable and provide copies of
the log to State Farm's counsel and Class Counsel as requested.
The Class Notice and Claim Form will also be available to the Class
Members upon request to the Administrator, who will send these
documents via first-class mail as requested by any potential Class
Member.
Upon request, State Farm and the Administrator will provide Class
Counsel such reasonable access to the notice process as they may
need to monitor compliance with the notice campaign.
In addition to the Class Notice and Claim Form mailed in accordance
with the preceding paragraphs, the Administrator will establish an
automated toll-free telephone number and a settlement website that
will contain information on the Stipulation, relevant pleadings,
the instructions for submitting opt-out requests, a posted copy of
the Stipulation, including exhibits to the Stipulation; further the
Administrator will also cause the Publication Notice to be
published twice in the Arkansas Democrat-Gazette -- the first
publication will be within 30 days of the entry of the Order, and
the second publication will be no later than 45 days prior to the
Final Approval Hearing.
No later than 15 days before the Final Approval Hearing, the
Administrator will mail to each potential Class Member who has not
submitted a Claim Form and who has not timely and properly excluded
themselves a reminder Postcard Notice with summary information
regarding the deadline for Claim Forms, the Settlement website
address, and sufficient information to enable the potential Class
Member to request a second copy of the Claim Form previously sent
to the potential Class Member.
At or before the Final Approval Hearing, the parties will file a
proof of mailing the Class Notice, the Claim Form, and the Postcard
Notice, and of the performance of the Publication Notice identified
above, from the Administrator.
The costs of providing notice and effectuating all other settlement
administration will be borne by State Farm, as provided in the
Stipulation.
The Court will hold a Final Approval Hearing to consider the
fairness, reasonableness, and adequacy of the Proposed Settlement
at 10:00 a.m. on June 1, 2020.
The Administrator will provide State Farm and the Class Counsel a
copy of any and all objections and opt-out requests received by the
Administrator.
At or before the Final Approval Hearing, the Class Counsel will
file with the Court an affidavit from the Administrator stating the
number of Class Members who have timely excluded themselves from
the Class (opted out) and the number of Objectors, and identifying
all such individuals. The Class Members will be provided an
opportunity to submit Claim Forms, requesting Claim Settlement
Payments in accordance with the terms of the Stipulation.
Not less than seven days prior to the Final Approval Hearing, the
Class Counsel will file with the Court a motion seeking the Court's
final approval of the Proposed Settlement and Stipulation and entry
of the final judgment. State Farm, in its sole discretion, may
also file a brief in support of final approval of the Proposed
Settlement.
The Proposed Settlement is preliminarily approved as fair,
reasonable, adequate, and in the best interest of the Class
Members. The Parties and the Administrator are directed to
implement the terms of the Proposed Settlement in accordance with
the Stipulation.
Except for proceedings in furtherance of the Proposed Settlement,
the Action is stayed pending further order of the Court.
A full-text copy of the Court's Jan. 3, 2020 Order is available at
https://is.gd/yTbMmQ from Leagle.com.
Jeff Dennington, individually and on behalf of all others
similarly
situated & James Stuart, Individually and on behalf of all others
similarly situated, Plaintiffs, represented by D. Matt Keil,
Attorney at Law, 406 Walnut St., Texarkana, AR 71854, George L.
McWilliams, Law Office of George L. McWilliams, P.C.
Century Bank Plaza, 2900 St. Michael Drive Suite 400Texarkana, TX
75503, James M. Pratt, Jr., James M. Pratt, Jr., P.A., 144 W
Washington St, Camden, AR 71701, Jason Earnest Roselius --
jason@mroklaw.com -- Mattingly & Roselius, John C. Goodson, Keil &
Goodson, Post Office Box 618, Texarkana, AR 75504- 0618, William
B.
Putman, Putman Law Office, 3900 N. Front St., Ste. 101,
Fayetteville, AR 72703, A.F. (Tom) Thompson, III, Murphy,
Thompson,
Arnold, Skinner & Castleberry, 555 E Main S #200, Batesville, AR
72501, Jack Austin Mattingly, Jr. -- jackjr@mroklaw.com --
Mattingly Roselius PLLC
State Farm Fire and Casualty Company, Defendant, represented by
John E. Moore -- john.moore@mrmblaw.com -- Munson, Rowlett, Moore
&
Boone, P.A., Ryan P. Poscablo -- rposcablo@rshc-law.com -- Riley
Safer Holmes & Cancila LLP, pro hac vice, Beverly A. Rowlett --
beverly.rowlett@mrmblaw.com -- Munson, Rowlett, Moore & Boone,
P.A., Heidi Dalenberg -- hdalenberg@rshc-law.com -- Riley Safer
Holmes & Cancila LLP, pro hac vice, Jacob Kahn --
jkahn@rshc-law.com -- Riley Safer Holmes Cancila LLP, Joseph A.
Cancila, Jr. -- jcancila@rshc-law.com -- Riley Safer Holmes &
Cancila LLP, pro hac vice, Nick Kahlon -nkahlon@schiffhardin.com
--
Schiff Hardin LLP, pro hac vice & Tal C. Chaiken --
tchaiken@rshc-law.com -- Riley Safer Holmes & Cancila LLP, pro hac
vice.
STERLING CREDIT: Faces Ferrando Suit Alleging Violation of FDCPA
----------------------------------------------------------------
David Ferrando, individually and on behalf of all others similarly
situated v. Sterling Credit Corporation, and John Does 1-25, Case
No. 2:20-cv-00447-WB (E.D. Pa., Jan. 27, 2020), is brought against
the Defendants for violations under the Fair Debt Collections
Practices Act.
Prior to July 23, 2019, an obligation was allegedly incurred to
Freedom Credit Union. Freedom Credit Union contracted with
Defendant SCC to collect the alleged debt. On July 23, 2019,
Defendant Sterling sent the Plaintiff a debt collection letter
regarding the alleged debt owed. Merely one day later on July 24,
2019, the Defendant sent another Letter.
The Plaintiff alleges that SCC is harassing to ask a consumer to
contact it within five days and has sent a subsequent letter one
day later, describing the consumer's actions as a "continued lack
of response to our requests." The Plaintiff contends that it is
unreasonable to expect the consumer to respond merely one day after
receiving the letter, especially when the first letter gives 5 days
to respond.
To send collection letters one day after another is harassment of
the consumer, the Plaintiff asserts. In addition, the language in
the second letter is threatening and harassing by describing the
consumer as having "chosen to evade our efforts," the Plaintiff
adds.
The Defendant has no way of determining whether the Plaintiff has
chosen to evade the letters and certainly not one day after the
first letter was sent, according to the complaint. The letter
contains additional threatening language, including the admonition
that "ignoring this obligation is only delaying the inevitable."
The consumer has no way of knowing what the Defendant means by "the
inevitable" and using such frightening terms is nothing more than
an attempt to coerce the Consumer into making immediate payment. As
a result of the Defendants' deceptive, misleading and unfair debt
collection practices, the Plaintiff has been damaged, says the
complaint.
The Plaintiff is a resident of the Commonwealth of Pennsylvania,
County of Philadelphia.
Defendant Sterling is a "debt collector."[BN]
The Plaintiff is represented by:
Antranig Garibian, Esq.
GARIBIAN LAW OFFICES, P.C.
1800 JFK Blvd., Suite 300
Philadelphia, PA 19103
Phone: (215) 326-9179
Email: ag@garibianlaw.com
SUNPOWER CORP: Fabricant Sues Over Unsolicited Marketing Calls
--------------------------------------------------------------
TERRY FABRICANT, individually and on behalf of all others similarly
situated v. SUNPOWER CORPORATION, Case No. 4:20-cv-00114-PJH (N.D.
Cal., Jan. 6, 2020), arises from the Defendant's unsolicited
telemarketing to wireless phone users, in violation of the
Telephone Consumer Protection Act.
Before the Defendant solicited him, Mr. Fabricant contends that he
had never consented to receive autodialed calls from SunPower. He
never did business with SunPower either.
SunPower sells energy-related goods and services, including solar
panels. Some of its marketing strategies involve an automatic
telephone dialing system.[BN]
The Plaintiff is represented by:
Jon B. Fougner, Esq.
FOUGNER LAW
600 California Street, 11th Floor
San Francisco, CA 94108
Telephone: (415) 577-5829
Facsimile: (206) 338-0783
E-mail: jon@fougnerlaw.com
- and -
Anthony I. Paronich, Esq.
PARONICH LAW, P.C.
350 Lincoln Street, Suite 2400
Hingham, MA 02043
Telephone: (617) 738-7080
Facsimile: (617) 830-0327
E-mail: anthony@paronichlaw.com
- and -
Andrew W. Heidarpour, Esq.
HEIDARPOUR LAW FIRM, PPC
1300 Pennsylvania Avenue NW, 190-318
Washington, DC 20004
Telephone: (202) 234-2727
E-mail: aheidarpour@hlfirm.com
TECH DATA: Faces Post Suit over Proposed Apollo Global Merger
-------------------------------------------------------------
JOSEPH POST, individually and on behalf of all others similarly
situated, Plaintiff v. TECH DATA CORPORATION; ROBERT M. DUTKOWSKY;
CHARLES E. ADAIR; KAREN DAHUT; HARRY J. HARCZAK, JR.; BRIDGETTE
HELLER; RICHARD T. HUME; KATHLEEN MISUNAS; THOMAS MORGAN; PATRICK
SAYER; SAVIO W. TUNG; APOLLO GLOBAL MANAGEMENT, INC.; TIGER MIDCO,
LLC; and TIGER MERGER SUB CO., Defendants, Case No.
1:19-cv-02352-UNA (D. Del., Dec. 24, 2019) is an action arising
from a proposed transaction announced on November 13, 2019,
pursuant to which Tech Data Corporation will be acquired by
affiliates of Apollo Global Management, Inc., a Delaware
corporation.
According to the complaint, on November 12, 2019, Tech Data's Board
of Directors caused the Company to enter into an agreement and plan
of merger with Tiger Midco, LLC, a Delaware limited liability
company ("Parent"), and Tiger Merger Sub Co., a Delaware
corporation. Pursuant to the terms of the Merger Agreement, Tech
Data's stockholders will receive $145.00 in cash for each share of
Tech Data common stock they own.
On December 12, 2019, defendants filed a proxy statement (the
"Proxy Statement") with the United States Securities and Exchange
Commission (the "SEC") in connection with the Proposed Transaction.
The Proxy Statement omits material information with respect to the
Proposed Transaction, which renders the Proxy Statement false and
misleading. The Proxy Statement fails to disclose: (i) all line
items used to calculate Adjusted EBITDA; and (ii) a reconciliation
of all non-GAAP to GAAP metrics.
Tech Data Corporation is a wholesale distributor of technology
products. The Company also provides its customers with advanced
logistics capabilities and Value-added services. Tech Data serves
value-added resellers, direct marketer, retailers and corporate
resellers in more than 100 countries throughout North America,
South America, Europe, the Middle East and Africa. [BN]
The Plaintiff is represented by:
Brian D. Long, Esq.
Gina M. Serra, Esq.
RIGRODSKY & LONG, P.A.
300 Delaware Avenue, Suite 1220
Wilmington, DE 19801
Telephone: (302) 295-5310
Facsimile: (302) 654-7530
E-mail: bdl@rl-legal.com
gms@rl-legal.com
- and -
Richard A. Maniskas, Esq.
RM LAW, P.C.
1055 Westlakes Drive, Suite 300
Berwyn, PA 19312
Telephone: (484) 324-6800
Facsimile: (484) 631-1305
E-mail: rm@maniskas.com
TECH DATA: Faces Shareholder Class Action Over Apollo Merger
------------------------------------------------------------
Courthouse News Service reported that shareholders say in a federal
class action that directors are selling Tech Data Corp. too cheaply
through an unfair process to Apollo Global Management, for $145 per
share or $5.1 billion.
A copy of the Complaint is available at:
https://is.gd/F9oBhS
TENNESSEE: Parole Violators' Bail Class Action Can Proceed
----------------------------------------------------------
Kevin Koeninger, writing for Courthouse News Service, reported that
a class of parole violators who claim that a Tennessee county's
bail system is effectively "wealth-based detention" can proceed
with their suit against the county and its sheriff, the Sixth
Circuit ruled.
A three-judge panel of the federal appeals court made its decision,
less than two weeks after the case was argued and affirmed a lower
court ruling that granted the class's request for a preliminary
injunction.
The plaintiffs sued the county and several private probation
companies in 2018, claiming their practices of setting bail amounts
without consideration of a person's ability to pay and holding
those who cannot afford to pay bail in jail are unconstitutional. A
district court judge ruled the class was likely to succeed and
granted their motion for a preliminary injunction in February,
which the county and sheriff appealed.
Giles County, located in south central Tennessee, and Sheriff Kyle
Helton argued the probationers should have sued the judges who set
their bail amounts and denied them hearings but U.S. Circuit Judge
Jeffrey Sutton disagreed.
Judge Sutton, a George W. Bush appointee, said the class is
entitled to see injunctive relief against Helton, who acted on
behalf of the state to enforce arrest warrants. Sovereign immunity
does not block a suit against a public official who is "actively
involved with administering" an alleged violation, the judge said,
citing the 1908 U.S. Supreme Court decision in Ex parte Young.
Helton had argued that the constitutional violation alleged by the
class occurred when the judges set their bail amounts. Sutton
conceded that the judge's actions were part of the process but he
outlined the court's reasoning to allow the case to proceed.
"Consider the alleged violation to be two actions," Sutton wrote.
"Action one: A judge determines a bail amount without considering
ability to pay or adequacy of alternatives. Action two: Sheriff
Helton detains the probationer until she pays the bail amount."
"The alleged constitutional violation is detention on an improperly
determined bail amount. The plaintiffs might have employed a
different theory and sued the judges, if not immune themselves, for
their part in carrying out the alleged harm. But ‘the plaintiff
is the master of the complaint' and free to choose between legal
theories. Absent some other bar, they are free to sue the sheriff,"
the judge added.
The sheriff also argued that allowing the class to proceed against
him would expand the Supreme Court's ruling in Ex parte Young but
Sutton disagreed.
"[T]his objection suffers from the same flaw as the last," Sutton
wrote. "The probationers are free to structure their complaint as
they wish . . . It also remains unclear whether the plaintiffs
could structure their lawsuit by suing the judges who set the bail
amounts. Judges have absolute immunity from suits based on their
judicial acts, except in matters over which they clearly lack
jurisdiction."
Sutton also allowed the case to proceed against Giles County, which
raised no objection to the preliminary injunction but instead chose
to reserve its arguments for the permanent injunction phase of the
case.
U.S. Circuit Judges John Nalbandian and Chad Readler, both
appointed to the court by President Donald Trump, also sat on the
panel.
A copy of the Opinion is available at:
https://is.gd/UVccS0
TEXAS ROADHOUSE: Tupitza Seeks Overtime Wages for Asst. Managers
----------------------------------------------------------------
BRITTANEE TUPITZA, on behalf of herself and all others similarly
situated v. TEXAS ROADHOUSE MANAGEMENT CORPORATION, Case No.
1:20-cv-00002-WSS (W.D. Pa., Jan 7, 2020), seeks to recover unpaid
overtime compensation under the Fair Labor Standards Act and the
Pennsylvania Minimum Wage Act.
The lawsuit is brought on behalf of the Plaintiff and her similarly
situated co-workers, who have worked for the Defendant as
exempt-classified Service Managers, Kitchen Managers, and other
exempt-classified Assistant Manager at its corporate-owned
restaurant locations.
According to the complaint, Texas Roadhouse misclassified the
Plaintiff and other Assistant Managers as exempt from the overtime
requirements of the FLSA and Pennsylvania Wage Laws. The Defendant
required the Plaintiff and other Assistant Managers to work more
than 40 hours per workweek without paying them any overtime
compensation and the Plaintiff and other Assistant Managers did in
fact work more than 40 hours per workweek without receiving
overtime compensation, the lawsuit adds.
The Plaintiff was employed by the Defendant as a Service Manager in
Erie, Pennsylvania, from June 2016 to May 2017.
Texas Roadhouse is a casual restaurant chain, which operates
approximately 464 company-owned locations across the country.[BN]
The Plaintiff is represented by:
Gary F. Lynch, Esq.
CARLSON LYNCH LLP
1133 Penn Avenue, 5th Floor
Pittsburgh, PA 15222
Telephone: (412) 322-9243
- and -
Justin M. Swartz, Esq.
Michael N. Litrownik, Esq.
OUTTEN & GOLDEN LLP
685 Third Avenue, 25th Floor
New York, NY 10017
Telephone: (212) 245-1000
- and -
Gregg I. Shavitz, Esq.
Alan Quiles, Esq.
SHAVITZ LAW GROUP, P.A.
1515 S. Federal Highway
Boca Raton, FL 33432
Telephone: (561) 447-8888
TREADZ AUTO: $5MM Class Action Lawsuit Certified in Calgary
-----------------------------------------------------------
Meghan Grant, writing for CBC News, reports that a Calgary judge
has certified a $5-million, class-action lawsuit against a defunct
vehicle consignment company, Treadz Auto, whose owner defrauded
clients out of more than $2 million.
As part of the decision, Court of Queen's Bench Justice Glenda
Campbell dismissed the action against Service Alberta and the
Alberta Motor Vehicle Industry Council (AMVIC), finding the two did
not owe a duty of care to the plaintiffs.
Campbell's decision also offers new details about Treadz owner Sean
O'Brien, including that he was granted a licence to sell cars
despite AMVIC's knowledge that he had a criminal record for
stealing cars 10 years earlier.
In 2018, O'Brien was sentenced to three years in prison after
pleading guilty to criminal charges, admitting he defrauded Calgary
car owners out of more than $2 million.
Campbell noted in her decision that the Treadz defendants, which
include O'Brien, "failed to respond to the action and have been
noted in default."
Treadz Auto owner pleads guilty to $2M vehicle consignment fraud
The lawsuit alleges Treadz did not pay owners whose vehicles were
sold and did not remove liens from the vehicles.
The plaintiffs named AMVIC as part of the suit, accusing the
watchdog of failing to properly investigate consumers' complaints
against Treadz and not compensating them adequately.
The lawsuit also named Service Alberta as a defendant, accusing the
province of failing to properly oversee AMVIC.
But Campbell dismissed the action against Service Alberta and
AMVIC, finding there is no merit to allegations the two governing
bodies are liable for regulatory negligence.
O'Brien initially faced 164 charges
Originally facing 164 fraud and theft charges, O'Brien pleaded
guilty to two counts of fraud over $5,000.
Details of O'Brien's crimes come from an agreed statement of facts
read aloud at his plea in September 2018.
Treadz Auto's provincial business licence cancelled by regulator
Between 2011 and 2014, about 100 people signed contracts with
Treadz Auto Group to sell their vehicles on consignment. Each paid
$299.
But Treadz did not compensate the owners after the cars were sold
to unsuspecting buyers. In many cases, those who consigned their
cars did not own them outright, leaving victims who continued to
pay for a vehicle they no longer owned.
The owner of the now-defunct company — which was located on
Fairmount Drive S.E. — also re-registered dozens of vehicles in
the company's name using fraudulent documents in order to secure a
loan from a credit company for nearly $500,000, which was never
repaid.
AMVIC grants licence despite criminal history
O'Brien's lawyer said his client operated successfully and honestly
for six years until a number of investors backed out. After O'Brien
remortgaged his home, "the house of cards came falling down," said
defence lawyer Karanpal Aujla.
But O'Brien's criminal activity dates back to the 1990s.
In 2004, O'Brien was issued a licence to sell cars. The licence was
issued by AMVIC, which can refuse to issue, suspend or cancel a
licence if a person has a criminal record.
O'Brien, it turned out, had a criminal record dating back to 1993
for what he described as "car theft-related charges."
Ten years before he would begin his car consignment company,
O'Brien was sentenced to 18 months in jail.
Complaints ramp up in 2014
AMVIC staff also noted O'Brien had filed for bankruptcy in the
past. Still, the agency granted and continued to renew O'Brien's
licence.
Complaints against Treadz began to roll into AMVIC the same year it
granted O'Brien his licence, according to Campbell's ruling.
But the complaints at that time averaged only one a year, and those
that involved failure to pay the proceeds of consignment sales were
quickly resolved — until 2014.
That year, the complaints began rolling into AMVIC, prompting
several investigations, which ended with O'Brien's licence
cancellation in August 2014.
Payouts not received
In that same year, the lawsuit's two named plaintiffs — Andrea
Scherle and Stacy Rachkewich — became involved with Treadz.
Scherle claims the consignment company sold her Dodge Ram but never
gave her the money.
Treadz sold her Dodge Ram for $53,500, which should have paid off
the financing owed to Scotiabank, but that never happened.
Treadz Auto complaints greater than police realized
Scotiabank came after Scherle for $47,000. She was able to make a
claim under AMVIC's compensation fund but that caps out at
$25,000.
Rachkewich filed a complaint with AMVIC in 2014, alleging Treadz
owed him nearly $20,000, the bulk of which was for a Scotiabank
financing buyout.
Now that the class-action lawsuit has been certified, a date for
the trial will have to be set. [GN]
TRENDZ BEAUTY: Ghazarian Seeks Damages Over Labor Code Violations
-----------------------------------------------------------------
ALINA GHAZARIAN, on behalf of the State of California and all
Aggrieved employees as a Private Attorney General v. TRENDZ BEAUTY
WEST, INC. a corporation, and DOES 1-50, inclusive, Case No.
20STCV00463 (Cal. Super., Los Angeles, Cty., Jan. 6, 2020), seeks
damages and other relief arising from Trendz Beauty's violations of
the California Labor Code Private Attorneys General Act of 2004.
The Plaintiff states that the Defendants failed to comply with
California Labor Code requirements due to erroneous, willful and
intentional employment practices and policies. The Plaintiff
contends that the identities of the aggrieved employees, who were
not timely paid all wages owed, can be ascertained by reviewing the
Defendants' time cards and wage statements. The Plaintiff adds that
the same is true for the identities of aggrieved employees, who
experienced meal break violations, rest break violations, seating
violations, and pay stub violations.
The Plaintiff was employed as an hourly, nonexempt employee of the
Defendants until January 6, 2019, earning $13 per hour.
Trendz Beauty is doing business in the beauty industry.[BN]
The Plaintiff is represented by:
Nazo Koulloukian, Esq.
Hilary Silvia, Esq.
KOUL LAW FIRM
3435 Wilshire Blvd., Suite 1710
Los Angeles, CA 90010
Telephone: (213) 761-5484
Facsimile: (818) 561-3938
E-mail: nazo@koulllaw.com
hilarv@koullaw.com
TWC ADMINISTRATION: Court Denies Class Cert. Bid in Gibbs Suit
--------------------------------------------------------------
In the case, LAURENCE GIBBS, an individual, MATTHEW LUTACK, an
individual, BRENT QUICK, an individual, and JESSICA HUENEBERG, an
individual, on behalf of themselves and all others similarly
situated, Plaintiffs, v. TWC ADMINISTRATION, LLC, a Delaware
Limited Liability Company, and DOES 1 through 10, inclusive,
Defendant, Case No. 17-cv-1513 DMS (AGS) (S.D. Cal.), Judge Dana M.
Sabraw of the U.S. District Court for the Southern District of
California denied the Plaintiffs' motion for class certification.
Time Warner provides video, high-speed data, and voice services to
customers in the United States. Defendant Time Warner Cable
("TWC"), a wholly owned subsidiary of Time Warner, directs Time
Warner's daily business practices. Plaintiffs Gibbs, Matthew
Lutack, Brent Quick, and Jessica Hueneberg worked as customer
service professionals ("CSRs") and call center leads for Defendant
Time Warner Cable ("TWC" or "Defendant") in San Diego and Ontario,
California.
Brent Quick was employed as a CSR and Technical Support
Professional from 2014 to 2017. Matthew Lutack was employed as a
CSR and Technical Support Professional from 2009 to 2016. Laurence
Gibbs was employed from 2011 to 2014, working as CSR and Lead.
Jessica Hueneberg was employed from 2014 to 2016 as a CSR. In
these customer service roles, the Plaintiffs assisted customers
over the phone regarding issues related to sales, billing, and
technology support.
At all times relevant to the action, the Plaintiffs were non-exempt
employees. As such, they were entitled to scheduled meal and rest
periods. TWC maintained a policy regulating off-the-clock work,
meal breaks, and rest breaks. Despite the policy, the Plaintiffs
contend TWC's phone system required off-the-clock work at the
beginning of their shifts. As such, they allege TWC required
off-the-clock work because they spent time loading their programs
before clocking in.
In addition to off-the-clock claims, Plaintiffs Quick, Gibbs, and
Hueneberg testified to missing meal breaks because their jobs
involved fielding high volumes of customer service calls during
their shifts. Further, they all testified to notifying supervisors
of either missed meal or rest breaks.
On May 28, 2019, the Plaintiffs filed the present motion for class
certification. They move for class certification on all current
and former non-exempt employees of Defendant who worked in a call
center as a Customer Service Professional, Customer Service and
Billing Professional, Technical Support Professional, Technical
Support and Billing Professional, and/or Call Center Lead, between
April 20, 2013 and the date of class certification, who have not
signed an arbitration agreement with the Defendant as of the date
the complaint was filed.
The Plaintiffs seek to certify a class of employees from the
Defendant's San Diego, CA and Ontario, CA offices. The Defendant's
corporate records indicate 536 putative class members in their San
Diego office, and over 300 in their Ontario office.
Of that larger group, the Plaintiffs move for class certification
for the following individual sub-classes:
(1) the off-the-clock subclass, including employees who were
not paid for all hours worked, in any pay period within the class
period;
(2) the overtime subclass, including employees who were not
provided with overtime pay during the class period, including only
employees who worked more than eight hours in any given day and
more than forty hours in any given week during the class period;
(3) the meal break subclass, including employees who worked
more than five hours and were not provided with uninterruptable
meal periods of at least 30 minutes or delayed meal periods that
began after the fifth hour of work;
(4) the rest break subclass of employees who were not provided
with uninterruptable rest breaks of at least ten minutes for each
four hours of work;
(5) the wage statement subclass including employees who were
not provided with accurately itemized wage statements for all hours
worked; and
(6) the waiting time subclass of employees who were not paid
all wages due and owing at the time of separation.
On July 26, 2019, the Defendant filed a motion for summary judgment
on all of the Plaintiffs' claims. On Aug. 14, 2019, the parties
stipulated to the Court deciding the motion for summary judgment
prior to the present motion for class certification.
On Jan. 3, 2020, the Court granted this motion in part and denied
it in part, finding triable issues of fact for all the named
Plaintiffs' off-the-clock claims for work performed prior to
clocking in, Plaintiff Hueneberg, Gibbs, and Quick's meal break
claims, and Plaintiff Gibbs' rest break claims, and any related
wage statement and waiting time claims. Therefore, class
certification will only be addressed with respect to those claims.
Judge Sabraw finds that although the Plaintiffs point to a series
of recent cases granting class certification for off-the-clock
claims, in each of those cases, the off-the-clock and overtime
violations resulted from a company-wide policy or practice. Unlike
those cases, there is no common policy or practice in the instant
case. She also finds that the off-the-clock subclass's claims do
not appear to depend upon a common contention of such nature that
it is capable of classwide resolution. Therefore, the Plaintiffs
fail to meet the commonality requirement for their off-the-clock
claims.
The Plaintiffs also fail to meet Rule 23(b)(3)'s requirement for
predominance, rules the Court. Looking at the named Plaintiffs
alone, their off-the-clock claims do not derive from the
Defendant's common policy or practice, but rather out of
individualized experiences with their supervisors. Each of the
four named Plaintiffs had different supervisors, and though the
outcomes of their experiences were largely the same, determining
whether their claims raised triable issues of fact necessitated
in-depth analysis of their individual depositions, including
individualized accounts of conversations with their supervisors.
At trial, each Plaintiff would need to testify regarding their
experiences with their supervisors. Moreover, each Plaintiff would
need to prove TWC had knowledge of the off-the-clock work,
necessitating testimony from each of their supervisors. The
putative class includes over 800 class members. This class is not
sufficiently cohesive to warrant adjudication by representation.
As with their off-the-clock claims, the elements establishing
liability are fact-intensive and vary between employees depending
on their experiences with their supervisors. Given the large size
of the class, and that employees had different supervisors with
different experiences, the meal and rest break claims raise
individual issues and are not sufficiently cohesive to warrant
adjudication by representation.
The Wage Statement and Waiting Time Penalties claims derive from
the described claims. Because these claims fail to meet the
requirements of commonality and predominance, these claims also
fail, the Court adds.
Because the Judge finds that the Plaintiff failed to establish
commonality for any of their claims, the requirements of typicality
and adequacy need not be addressed.
Finally, the Plaintiffs' claims fail to meet the predominance
requirement. Therefore, the remaining Rule 23(b) requirements will
not also be addressed.
For the foregoing reasons, Judge Sabraw denied the Plaintiffs'
motion for class certification.
A full-text copy of the Court's Jan. 3, 2020 Order is available at
https://is.gd/CsB2qf from Leagle.com.
Carmen Fuller, an individual, on behalf of themselves and all
others similarly situated, Plaintiff, represented by David R.
Markham -- dmarkham@markham-law.com -- The Markham Law Firm, Walter
L. Haines -- whaines@uelglaw.com -- United Employees Law Group, PC
& Maggie K. Realin -- mrealin@markham-law.com -- The Markham Law
Firm.
Laurence Gibbs, an individual, on behalf of themselves and all
others similarly situated, Matthew Lutack, an individual, on behalf
of themselves and all others similarly situated & Brent Quick, an
individual, on behalf of themselves and all others similarly
situated, Plaintiffs, represented by David R. Markham, The Markham
Law Firm, Walter L. Haines, United Employees Law Group, PC, Lisa
Rose Brevard, The Markham Law Firm & Maggie K. Realin, The Markham
Law Firm.
Jessica Hueneberg, an individual, on behalf of themselves and all
others similarly situated, Plaintiff, represented by David R.
Markham, The Markham Law Firm, Maggie K. Realin, The Markham Law
Firm & Lisa Rose Brevard, The Markham Law Firm.
TWC Administration, LLC, a Delaware Limited Liability Company,
Defendant, represented by Joseph Scott Carr -- scarr@kcozlaw.com --
Kabat Chapman & Ozmer LLP, Joseph W. Ozmer, II --
jozmer@kcozlaw.com -- Kabat Chapman & Ozmer LLP, Paul G. Sherman --
psherman@kcozlaw.com -- Kabat Chapman & Ozmer LLP, pro hac vice &
Shawna M. Miller -- smiller@kcozlaw.com -- Kabat Chapman & Ozmer
LLP, pro hac vice.
ULISES PHARMACY: Underpays Pharmacy Technicians, Suit Alleges
-------------------------------------------------------------
JUAN ALMAZO-RAMIREZ, individually and on behalf of all others
similarly situated, Plaintiff v. ULISES PHARMACY INC. d/b/a Ulises
Pharmacy; NUESTRA FARMACIA INC. d/b/a Nuestra Pharmacy; NUESTRA LUZ
PHARMACY INC. f/k/a BUENA VIDA PHARMACY INC. d/b/a Nuestra Luz
Pharmacy f/d/b/a Buena Vida Pharmacy; DIVINA FARMACIA, INC. d/b/a
Divina Pharmacy; SUPER VIDA PHARMACY INC. d/b/a Super Vida
Pharmacy; QUALITY CARE PHARMACY INC. d/b/a Quality Care Pharmacy;
FARMACIA POPULAR INC. f/k/a ULISES'S PHARMACY, INC.; ULISES VARGAS,
SR., and ULISES VARGAS, JR., Defendants, Case No. 1:19-cv-07290
(E.D.N.Y., Dec. 31, 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 Almazo-Ramirez was employed by the Defendants as
pharmacy technician.
Ulises Pharmacy Inc. d/b/a Ulises Pharmacy distributes
pharmaceutical products. The Company offers prescription, drugs,
vitamins, beauty aids, diaper, health supplement, and other medical
products. [BN]
The Plaintiff is represented by:
John Troy, Esq.
Aaron Schweitzer, Esq.
Leanghour Lim, Esq.
TROY LAW, PLLC
41-25 Kissena Boulevard Suite 119
Flushing, NY 11355
Telephone: (718) 762-1324
UNION LOCAL 237: 2nd Cir. Upholds Dismissal of Amended Wynn Suit
----------------------------------------------------------------
In the case, BRIAN WYNN, INDIVIDUALLY AND ON BEHALF OF ALL OTHERS
SIMILARLY SITUATED, AWILDA GUZMAN, INDIVIDUALLY AND ON BEHALF OF
ALL OTHERS SIMILARLY SITUATED, JOSE OTERO, INDIVIDUALLY AND ON
BEHALF OF ALL OTHERS SIMILARLY SITUATED, JOHN WILLIAMS,
INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED, KEVIN
FULTON, INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY
SITUATED, Plaintiffs-Appellants, v. UNION LOCAL 237, I.B.T.,
Defendant-Appellee, Case No. 19-962 (2d Cir.), the U.S. Court of
Appeals for the Second Circuit affirmed the District Court's
judgment entered on March 13, 2019 dismissing the Plaintiffs
amended complaint under Rule 12(b)(6) on res judicata grounds.
In 2014, the Plaintiffs brought a putative class action against
their employer, the New York City Housing Authority ("NYCHA"), and
their labor union, Defendant-Appellee Union Local 237, I.B.T.
("Wynn I"). The Plaintiffs, all of whom are Black or Hispanic,
alleged that NYCHA paid them less than similarly situated white
employees and that their Union tacitly approved and encouraged the
discriminatory compensation scheme, in violation of 42 U.S.C.
Section 1981, the Equal Protection Clause, and the New York City
Human Rights Law ("NYCHRL").
In March 2017, the District Court (Schofield, J.) granted summary
judgment in favor of NYCHA and the Union, finding that the record
contained insufficient evidence of discriminatory animus. The
Court affirmed the judgment on appeal.
Shortly thereafter, the Plaintiffs filed a second action against
the Union ("Wynn II"), this time alleging that the Union violated
Title VII, 42 U.S.C. Section 2000e et seq., by allowing NYCHA to
pay them less than similarly situated white employees. The
District Court dismissed the Plaintiffs' amended complaint under
Rule 12(b)(6), concluding that their claims were precluded by res
judicata.
The Plaintiffs then filed the timely appeal.
For substantially the same reasons as are set forth in the District
Court's thoughtful opinion, the Second Circuit concludes that the
earlier adjudication of Wynn I precludes the Plaintiffs' Title VII
claims in Wynn II. The Plaintiffs do not contest that the first
two elements of res judicata are satisfied, nor could they: In Wynn
I, the District Court granted summary judgment to the Union based
on the merits of Plaintiffs' discrimination claims. And, as the
District Court aptly observed in Wynn II, the Plaintiffs' claims in
Wynn I and Wynn II rest on the same factual allegations, namely:
that (1) the Plaintiffs worked for NYCHA as "Caretakers P," a
position involving the application and removal of wall plaster; (2)
NYCHA paid "prevailing wages" to "Mason Helpers" (another class of
NYCHA employees with different job responsibilities), but not to
Caretakers P; (3) the employees who worked as Caretakers P were
predominately Black and Hispanic, while the employees who worked as
Mason Helpers were predominately white; and (4) the Union tacitly
acquiesced to the allegedly discriminatory compensation system.
Notwithstanding this factual overlap, the Plaintiffs advance three
arguments to support their position that res judicata does not bar
them from asserting their Title VII claims in Wynn II. First, they
contend that they could not have filed these claims in Wynn I
because they did not exhaust their administrative remedies under
Title VII until after they initiated their first suit against NYCHA
and the Union. Second, the Plaintiffs argue that res judicata does
not apply because Wynn I and Wynn II assert different theories of
discrimination. Third, and finally, the Plaintiffs seek to avoid
the res judicata bar by relying on the Lilly Ledbetter Fair Pay
Act.
As for the first argument, the Second Circuit finds the argument
unpersuasive, however, because failure to exhaust under Title VII
in an administrative forum does not exempt a claim from the
application of res judicata in a judicial forum. As for the second
argument, the factual allegations at issue in Wynn I and Wynn II
are essentially identical. And for the third and final argument,
the Second Circuit finds the Ledbetter Act does not save the
Plaintiffs' Title VII claims from the application of res judicata.
The Ledbetter Act's generous accrual provisions apply to only
"traditional pay-discrimination claims" that challenge
discriminatory compensation decisions.
The Second Circuit has considered the Plaintiffs' remaining
arguments and concludes that they are without merit.
For the foregoing reasons, the Second Circuit affirmed the District
Court's judgment.
A full-text copy of the Second Circuit's Dec. 13, 2019 Summary
Order is available at https://is.gd/3YBwGm from Leagle.com.
LEE NUWESRA -- lnuwesra@optonline.net -- Law Offices of Lee
Nuwesra, New York, NY, for Plaintiffs-Appellants.
ALEXANDRA HOWELL -- info@abgllaw.com -- Archer, Byington, Glennon &
Levine LLP, Melville, NY, for Defendant-Appellee.
UNITED AIRLINES: Flores Suit Over Airfare Insurance Kickback Nixed
------------------------------------------------------------------
Judge Jorge Alonso of the U.S. District Court for the Northern
District of Illinois, Eastern Division, granted the Defendant's
motion to dismiss the case, PATRICIA FLORES, Plaintiff, v. UNITED
AIRLINES, Defendant, Case No. 18 C 6571 (N.D. Ill.).
On its website, United sells tickets for the air transportation it
provides. After a customer such as the Plaintiff has chosen a
flight but before she has purchased it, United offers the customer
the option to purchase travel insurance. United's customers are
not required to purchase travel insurance in order to purchase a
ticket to fly, but they are required either to accept or reject the
option of travel insurance.
While using the Defendant's website to purchase a ticket for air
travel, Flores was offered the option to purchase travel insurance,
and she accepted. The Plaintiff purchased a travel insurance
policy from United's website on Feb. 23, 2018. She does not say
how much she paid. At no point during her transaction to purchase
travel insurance did United disclose to her that it had a financial
interest in her purchase of travel insurance, but it did.
When the Plaintiff learned that Defendant United would receive a
cut of the money she paid for insurance, Flores brought the suit,
asserting claims for violation of the Illinois Consumer Fraud and
Deceptive Trade Practices Act and the RICO ("Racketeer Influenced
and Corrupt Practices Act") statute, as well as a claim for unjust
enrichment.
According to the Plaintiff's complaint, United has also concealed
and/or failed to disclose to state regulators the fact that it
receives a commission or kickback every time a customer elects to
purchase a travel insurance product through its website. She
alleges that the price of the travel insurance is set by the
insurer, not United. The Plaintiff alleges that neither the dates
of travel nor the route affects the insurance price. She alleges
the price for each travel insurance policy purchased on United's
website is based solely on the overall ticket price. The Plaintiff
also alleges that because the price of travel insurance
incorporates an illegal commission paid to United, customers pay an
inflated price.
In Count I, the Plaintiff asserts that defendant violated the
Illinois Consumer Fraud and Deceptive Trade Practices Act ("ICFA").
In Count IV, the Plaintiff seeks relief for unjust enrichment. In
that claim, too, she alleges that United was unjustly enriched when
she purchased travel insurance. In Count II, the Plaintiff asserts
that the Defendant violated the RICO Act by making false statements
in email messages and on a website in furtherance of a scheme to
deceive the Plaintiff into believing that when they purchased a
travel insurance policy on the Defendant's website, the price
displayed represented the cost of the policy. In Count III,
plaintiff asserts conspiracy under 18 U.S.C. Section 1962(d).
The Defendant moves to dismiss for failure to state a claim, among
other reasons.
Judge Alonso granted the Defendant's motion to dismiss. The Judge
dismissed Counts I and IV without prejudice, and dismissed Counts
II and III with prejudice. The Judge denied as moot the
Defendant's motion to strike class allegations. The Plaintiff is
granted 35 days in which to file an amended complaint, should she
so choose.
Among other things, Judge Alonso found that (i) the Plaintiff has
not stated a claim under the ICFA because she has not alleged that
the transaction occurred primarily and substantially in Illinois;
(ii) the Seventh Circuit has held that, where a party fails to
state a claim under the ICFA, she necessarily fails to state a
claim for unjust enrichment; and (iii) the Illinois statute is
plainly one that regulates the business of insurance, and RICO is
not a statute that specifically relates to the business of
insurance.
A full-text copy of the Court's Dec. 10, 2019 Memorandum Opinion &
Order is available at https://is.gd/azdR6I from Leagle.com.
Patricia Flores, on behalf of herself and all others similarly
situated, Plaintiff, represented by Chad Emerson Bell, Korein
Tillery, George A. Zelcs -- gzelcs@koreintillery.com -- Korein
Tillery, Randall P. Ewing, Jr., Korein Tillery, Llc & Alec H.
Schultz -- aschultz@leoncosgrove.com -- Leon Cosgrove, Llp.
United Airlines, Defendant, represented by Patricia Brown Holmes --
pholmes@rshc-law.com -- Riley Safer Holmes & Cancila LLP, Sondra A.
Hemeryck -- shemeryck@rshc-law.com -- Riley Safer Holmes & Cancila
LLP & Sarah Elizabeth Finch -- sfinch@rshc law.com -- Riley Safer
Holmes & Cancila.
VALDEZ PAINTING: Faces Brasier Employment Suit in California
------------------------------------------------------------
A class action lawsuit has been filed against Valdez Painting,
Incorporated, et al. The case is captioned as Shaun Brasier, on
behalf of himself and all other similarly situated v. Valdez
Painting, Incorporated and Does 1-50, Case No.
34-2020-00272761-CU-OE-GDS (Cal. Super., Sacramento Cty., Jan. 7,
2020).
The suit alleges violation of employment related laws.
Valdez offers painting services for small office to large building
or warehouse.[BN]
The Plaintiff is represented by:
Arash S. Khosrowshahi, Esq.
1010 F St., Suite 300
Sacramento, CA 95814-0839
Telephone: (916) 573-0469
Facsimile: (866) 700-0787
E-mail: libertymanlaw@gmail.com
VIGLIOTTI ENTERPRISES: Cordova Sues Over Unpaid Overtime Wages
--------------------------------------------------------------
Sady Lopez Cordova, individually and on behalf of all others
similarly situated v. VIGLIOTTI ENTERPRISES, LLC d/b/a VIGLIOTTI
LANDSCAPE SERVICE CENTER, and CHARLES VIGLIOTTI, as an individual,
Case No. 2:20-cv-00452 (E.D.N.Y., Jan. 27, 2020), is brought
against the Defendants to recover damages for their egregious
violations of state and federal wage and hour laws, including the
Fair Labor Standards Act and the New York Labor Law, arising out of
the Plaintiff's employment with them.
Although the Plaintiff worked for 63 or more hours per week during
his employment by the Defendants, the Defendants did not pay the
Plaintiff time and a half for hours worked over 40, a blatant
violation of the overtime provisions contained in the FLSA and
NYLL, says the complaint. The Plaintiff also alleges that the
Defendants willfully failed to post notices in conspicuous place at
the location of their employment of the minimum wage and overtime
wage requirements of the NYLL and the FLSA.
The Plaintiff was employed by the Defendants as a landscaper.
VIGLIOTTI ENTERPRISES, LLC is a corporation organized under the
laws of New York with a principal executive office in Westbury, New
York.[BN]
The Plaintiff is represented by:
Roman Avshalumov, Esq.
HELEN F. DALTON & ASSOCIATES, P.C.
80—02 Kew Gardens Road, Suite 601
Kew Gardens, NY 11415
Phone: 718-263-9591
Fax: 718-263-9598
VIGLIOTTI ENTERPRISES: Cordova Sues Seeks Unpaid Overtime Wages
---------------------------------------------------------------
Sady Lopez Cordova, individually and on behalf of all others
similarly situated v. VIGLIOTTI ENTERPRISES, LLC d/b/a VIGLIOTTI
LANDSCAPE SERVICE CENTER, and CHARLES VIGLIOTTI, as an individual,
Case No. 1:20-cv-00705 (E.D.N.Y., Jan. 27, 2020), is brought
against the Defendants to recover damages for their egregious
violations of state and federal wage and hour laws, including the
New York Labor Law and the Fair Labor Standards Act, arising out of
the Plaintiff's employment with them.
Although the Plaintiff worked for 63 or more hours per week during
his employment by the Defendants, the Defendants did not pay the
Plaintiff time and a half for hours worked over 40, a blatant
violation of the overtime provisions contained in the FLSA and
NYLL, says the complaint.
The Plaintiff was employed by the Defendants as a landscaper.
VIGLIOTTI ENTERPRISES, LLC is a corporation organized under the
laws of New York with a principal executive office in Westbury, New
York.[BN]
The Plaintiff is represented by:
Roman Avshalumov, Esq.
HELEN F. DALTON & ASSOCIATES, P.C.
80—02 Kew Gardens Road, Suite 601
Kew Gardens, NY 11415
Phone: 718-263-9591
Fax: 718-263-9598
WELLSPACE HEALTH: Faces Hewitt-King Labor Suit in Sacramento
------------------------------------------------------------
An employment-related class action lawsuit has been filed against
Wellspace Health. The case is captioned as VANESSA HEWITT-KING,
individually and on behalf of all others similarly situated,
Plaintiff v. WELLSPACE HEALTH; and DOES 1-50, Defendants, Case No.
34-2019-00272021-CU-OE-GDS (Cal. Super., Sacramento Cty., Dec. 24,
2019).
Wellspace Health offers health care services. The Company provides
medical, prenatal care, addiction counseling, pediatric, dental,
and pregnancy testing services. Wellspace Health serves patients in
the State of California. [BN]
The Plaintiff is represented by:
Natalie Haritoonian, Esq.
David Yeremian and Associates
535 N. Brand Blvd., Suite 705
Glendale, CA 91203
Tel: 818-230-8380
*********
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
Bankruptcy Creditors' Service, Inc., Fairless Hills, Pennsylvania,
USA, and Beard Group, Inc., Washington, D.C., USA. Rousel Elaine T.
Fernandez, Joy A. Agravante, Psyche A. Castillon, Julie Anne L.
Toledo, Christopher G. Patalinghug, and Peter A. Chapman, Editors.
Copyright 2020. All rights reserved. ISSN 1525-2272.
This material is copyrighted and any commercial use, resale or
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