/raid1/www/Hosts/bankrupt/CAR_Public/200312.mbx
C L A S S A C T I O N R E P O R T E R
Thursday, March 12, 2020, Vol. 22, No. 52
Headlines
149 DELI CORP: Amaya Seeks Unpaid Overtime Wages, Missing Paystubs
AAF PLAYERS: Bankr. Court Strikes Jury Demand in Schmidt Suit
ACTAVIS PHARMA: Brzozowski Sues over Contaminated Metformin Drug
ADDUS HEALTHCARE: Court Dismisses Encinias From Moore Labor Suit
AMC ENTERTAINMENT: Court Enters Protective Order in Securities Suit
ARTIFICIAL GRASS: Class Claims in Bacon Dismissed Without Prejudice
ASHBRITT INC: Court Dismisses RICO Claims in Mason Suit
AT&T SERVICES: Dist. Ct. Judgment in Gadehak TCPA Suit Affirmed
BANK OF AMERICA: Net Settlement Fund Distribution in AEPF Suit OK'd
BAUSCH HEALTH CO: MSP Recovery Sues Over Diabetes Drug Monopoly
BIMBO BAKERIES: Court Dismisses Peatry's Post-May 8, 2018 Claims
BRUNEL RESOURCES: Shortchanges Workers' Overtime Pay, Jonson Claims
CAREMARK PHC: BPP Junk Fax Row Removed to E.D. Mo.
CITY NATIONAL BANK: Bid to Dismiss Noe Suit Over NSF Fee Denied
CREDIT CONTROL: Court Denies Bid to Dismiss Cartmell FDCPA Suit
DAWN FOOD: Howell et al Sue over Collection of Biometric Data
DELAWARE: District Court Dismisses Abdul-Akbar Civil Rights Suit
DEUTSCHE BANK: Settlement in Securities Suit Gets Initial Approval
DEVA CONCEPTS: Sells Fraudulent No-Poo Cosmetic, Calabrese Alleges
DIRECTV LLC: 11th Cir. Flips Denial of Arbitration Bid in Cordoba
EDDIE BAUER: Settlement in Veridian Suit Has Final Approval
ENERGY TRANSFER: Institutional Investor Group Named Lead Plaintiff
ERMINIA RESTAURANT: Barcenas Sues over Tip Pooling
GEICO: Underpays Vehicle Insurance Claims, Angell et al. Allege
GERON CORP: Misleads Investors on IMbark Test Result, Pfeifer Says
GLOBAL CREDIT: Arbitration Compelled in Castle FDCA Suit
HANNA ANDERSSON: Barnes Sues Over Data Breach
IDAHO: Court to Hear Bid to Enforce K.W. Settlement on March 19
ILLINOIS: Bid to Sanction Dr. Newbold & Counsel in Winger Denied
INNOVACARE HEALTH: Minority Stockholders Sue D&Os over Summit Deal
INTELENET AMERICA: Class of CSRs in Clark Conditionally Certified
JOHN C. HEATH: Trim and Frey Sue over Unsolicited Telephone Calls
JOHN L. SULLIVAN: Arbitration Bid Denial in Gotts Labor Suit Upheld
KAISER FOUNDATION: Cal. App. Affirms Andino Class Decertification
KARPENISI DO-NUT SHOP: Atemis and Zavala Sue over Unpaid OT Wages
L'OREAL USA: Prelim Approval of Settlement in Conti Suit Denied
LAWRENCE EQUIPMENT: Arbitration Award Ruling in Rodriguez Upheld
LEGEND ENERGY: Baswell Seeks Unpaid Back Wages and OT Pay
LEGENDS HOSPITALITY: Contreras Seeks to Recover Withheld Gratuities
LOT 74 REALTY: Overcharges Tenants, Martinez and Canela Claim
MARY JANE ELLIOTT: Sixth Cir. Flips Dismissal of Vanderkodde Suit
MAXIM HEALTHCARE: 10th Circuit Flips Final Judgment in Jordan Suit
MDL 2047: Taishan Settlement in Drywall Suit Has Final Approval
MDL 2420: Class Notice on Settlement in Antitrust Suit Directed
METALS USA: Filing of Bid for Final Nod of Wilson Deal Due March 27
MONTGOMERY COUNTY, NY: Motions in Limine in Hill Suit Partly Okayed
PERSONALIZATIONMALL: Barnes Sues over Collection of Biometrics
PILOT TRAVEL: Discovery & Entry of Sched Order in Drasal Stayed
POLARIS INDUSTRIES: Court Narrows Claims in Products Liability Suit
PORSCHE FIN'L: Partial Summ. Judgment Bid in Cox Granted in Part
PPDAI GROUP: Court Narrows Claims in Securities Suit
PRET A MANGER: Bid to Dismiss Cunningham Suit Over Fraud Denied
PSC INC: $1.52MM Settlement in Miller Suit Gets Final Approval
PTAG INC: Cotton Labor Suit Seeks Unpaid Overtime Wages
RIPPLE LABS: Court Narrows Claims in Zakinov Securities Suit
ROBINHOOD FINANCIAL: Court Dismisses Gordon Suit Without Prejudice
SAGINAW COUNTY, MI: Court Stays Fox Suit Pending Decision in Freed
SALT RIVER: Court Narrows Claims in Ellis Antitrust Suit
SANGAM INC: Andrade Sues Over Illegal SMS Ad Blasts
SAXE MANAGEMENT: Settlement in Bauman Suit Gets Prelim Approval
SEI INVESTMENTS: $6.8MM Stevens ERISA Suit Deal Gets Final Approval
SPECTRUM PHARMACEUTICALS: Securities Suit Deal Has Prelim. Approval
SPRINT COMMUNICATIONS: Summary Judgment Bid in Gorss Partly Granted
STARBUCKS CORP: Adams Hits Coffee Dilution on Large Size Servings
STATE FARM MUTUAL: Clemons Sues Over Illegal Telemarketing Calls
TELEFONAKTIEBOLAGET LM: Second Amended Securities Suit Dismissed
TRADESMEN INTERNATIONAL: Class Claims Stricken in Glass Suit
TRANSCARE CORP: Partial Summary Judgment Granted in Ien's Suit
TRANSDIGM GROUP: Ohio Northern District Dismisses Securities Suit
TREEHOUSE FOODS: Court Certifies Class in MSPERS Suit
UNITED STATES: Ct. says CBP Can't Hold Detainees More than 48 Hrs.
WELLS FARGO: Claims in Purple Mountain Securities Suit Narrowed
*********
149 DELI CORP: Amaya Seeks Unpaid Overtime Wages, Missing Paystubs
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Elmer Amaya, individually and on behalf of all others similarly
situated, Plaintiffs, v. 149 Deli Corp., 543 Deli Corp., Amin Abas,
Abdo M. Ali and Fares Hamad Ali, as individuals, Defendants, Case
No. 20-cv-00954, (S.D. N.Y., February 4, 2020), seeks to recover
damages for violations of New York State labor laws and the Fair
Labor Standards Act, compensatory and liquidated damages, interest,
attorneys' fees, costs and all other legal and equitable remedies.
Defendants operate several delis in the Bronx where Amaya worked as
a deli worker from November 2016 to November 2019. He claims to
have worked in excess of 40 hours per day without overtime premium,
and that Defendants failed to provide accurate wage statements.
[BN]
Plaintiff is represented by:
Roman Avshalumov, Esq.
HELEN F. DALTON & ASSOCIATES, PC
69-12 Austin Street
Forest Hills, NY 11375
Telephone: (718) 263-9591
Fax: (718) 263-9598
Email: HFDalton6912@Gmail.com
AAF PLAYERS: Bankr. Court Strikes Jury Demand in Schmidt Suit
-------------------------------------------------------------
Judge Craig Gargotta of the U.S. Bankruptcy Court for the Western
District of Texas, San Antonio Division, struck the Plaintiffs'
Jury Demand in the case, In re LEGENDARY FIELD EXHIBITIONS, LLC and
EBERSOL SPORTS MEDIA GROUP, INC., Chapter 7, Debtors. COLTON
SCHMIDT ET AL., Plaintiffs, v. AAF PLAYERS, LLC ET AL., Defendants,
Case No. 19-50900-cag, Adversary No. 19-05053-cag (W.D. Tex.).
On April 17, 2019, co-Defendants AAF Players, LLC; AAF Properties,
LLC; Legendary Field Exhibitions, LLC; and Ebersol Sports Media
Group, Inc. each filed a chapter 7 bankruptcy case in the Court.
After a hearing on July 3, 2019, the cases of all of the AAF
Defendants were substantively consolidated into one lead case
numbered 19-50900-cag (Case No. 19-50900, ECF No. 150) ("Lead
Case").
Before the Chapter 7 filing, on April 10, 2019, Plaintiffs Colton
Schmidt and Reggie Northrup filed their Class Action Complaint for
Damages ("Original Complaint") against AAF Defendants, Thomas
Dundon, and Charles Ebersol in the Superior Court of the State of
California, County of San Francisco. Counts in the Original
Complaint included the following causes of action against AAF
Defendants: breach of contract, breach of implied covenant of good
faith and fair dealing, promissory estoppel, failure to pay wages
in violation of California Labor Code Section 201, violation of the
California Business and Professions Code Section 17200, fraud,
false promise, and inducing breach of contract. The Original
Complaint also included a demand for jury trial.
On June 24, 2019, the Plaintiffs' lawsuit was removed to the U.S.
District Court for the Northern District of California. The case
was then transferred to the U.S. District Court for the Western
District of Texas on Sept. 9, 2019. On Sept. 23, 2019, the Texas
Western District Court issued an Order of Referral that referred
the Plaintiffs' lawsuit to the Texas Bankruptcy Court. Upon
transfer of the case, the Texas District Court transmitted the
Original Complaint to the Texas Bankruptcy Court.
While the lawsuit was pending in the Texas District Court, the
Plaintiffs filed Proof of Claim No. 214 on July 15, 2019, and
Amended Proof of Claim No. 214 on July 16, 2019 ("Claim") in the
Lead Case. The Claim was for $673,920,000 on the basis of
"services performed and U.S. District Case No. 19-CV-03666-JCS."
The Claim contained an addendum, which provided that the
Plaintiffs' claim against the Debtors arises from a civil action
that was filed in the San Francisco County Superior Court against
the AAF Defendants. The Claim includes as attachments a copy of
the Original Complaint and a copy of the standard form contract
between the Plaintiffs and the AAF Players. It also states, in
relevant part, that filing of the proof of claim is not and will
not be deemed or construed as a waiver or release of the
Plaintiffs' rights to a trial by jury.
Before the Bankruptcy Court is the Plaintiffs' Jury Demand, which
was proceeded by the Plaintiffs' Amended Jury Demand. In
compliance with L. Rule 9015, the Plaintiffs filed their Amended
Statement Regarding Consent. The Bankruptcy Court also considered
Defendant Dundon's Notice of Consent, his Response Regarding
Consent, the Plaintiffs' Reply in Support of Plaintiffs' Amended
Statement Regarding Consent, the Trustee's Response Regarding
Consent, and Defendant Ebersol's Response Regarding Consent. The
Bankruptcy Court held a hearing on the Jury Demand on Dec. 4, 2019.
As a preliminary matter, the Bankruptcy Court has jurisdiction over
this proceeding pursuant to 28 U.S.C. Section 1334(b) and 28 U.S.C.
Section 157(e). The parties disagree over whether the proceeding
is a core proceeding under 28 U.S.C. Section 157(b). All of the
parties have not consented to the bankruptcy court entering final
orders under 28 U.S.C. Section 157(c)(2).
Judge Gargotta appreciates that the Plaintiffs filed their Claim
before the case was transferred to the Bankruptcy Court by the
Texas District Court. Judge Gargotta also appreciates the Hobson's
Choice, which is that the Plaintiffs were forced to file a proof of
claim and lose their right to a jury trial in the adversary
proceeding, or forgo filing a proof of claim but risk the loss of
their right to participate in distribution of the bankruptcy
estate. Judge Gargotta notes, however, that the Plaintiffs should
have appreciated the possibility of their case being transferred to
the Bankruptcy Court before deciding to file a proof of claim.
Ultimately, the Plaintiffs lost their right to a jury trial in the
Bankruptcy Court as a result of their own action-filing a proof of
claim. By making a conscious decision to seek affirmative relief
from the Bankruptcy Court by filing a proof of claim, the
Plaintiffs' Claim implicates the claim allowance process and could
impact distribution of assets of the estate.
Because it is clear that a creditor who submits a proof of claim
against the bankruptcy estate has no right to a jury trial on
issues raised in defense of such claim, Judge Gargotta struck the
Plaintiffs' Jury Demand, as filed in the Bankruptcy Court.
A full-text copy of Judge Gargotta's Jan. 10, 2020 Order is
available at https://is.gd/ArJ20F from Leagle.com.
Colton Schmidt & Reggie Northrup, Plaintiffs, represented by
Katharine Battaia Clark, Hedrick Kring, PLLC, Jonathon S. Farahi --
JFarahi@actslaw.com -- Abir Cohen Treyzon Sala, LLP & Boris Treyzon
-- btreyzon@actslaw.com -- Abir Cohen Treyzon Salo LLP.
AAF Players, LLC, Defendant, pro se.
Thomas G. Dundon, Defendant, represented by Jason I. Bluver --
jib@paynefears.com -- Payne & Fears LLP, Brent Douglas Hockaday --
bhockaday@bellnunnally.com -- Bell Nunnally Martin LLP, Jeffrey
Scott Lowenstein -- jlowenstein@bellnunnally.com -- Bell Nunnally &
Martin, Leila Narvid, Payne & Fears LLP & Brent A. Turman --
bturman@bellnunnally.com -- Bell Nunnally & Martin.
Charles Ebersol, Defendant, represented by William N. Radford,
Thompson, Coe, Cousins & Irons, L.L.P. & Natalie F. Wilson, Langley
& Banack, Inc.
Legendary Field Exhibitions, LLC, Defendant, pro se.
AAF Properties, LLC, Defendant, pro se.
Ebersol Sports Media Group, Inc., Defendant, pro se.
Randolph N. Osherow, in his capacity as Chapter 7 Trustee, Trustee,
represented by Brian S. Engel, Barrett Daffin Frappier Turner &
Engel.
ACTAVIS PHARMA: Brzozowski Sues over Contaminated Metformin Drug
----------------------------------------------------------------
The case, JOSEPH BRZOZOWSKI, individually and on behalf of all
others similarly situated, Plaintiff v. ACTAVIS PHARMA, INC.;
ACTAVIS, LLC, TEVA PHARMACEUTICALS USA, INC.; TEVA PHARMACEUTICAL
INDUSTRIES, LTD.; CVS HEALTH CORPORATION; and JOHN DOES 1-100,
Defendants, Case No. 2:20-cv-02324-MCA-MAH (D.N.J., March 3, 2020)
alleges that Defendants violated the current Good Manufacturing
Practices (cGMPs) of 21 U.S.C. Sec. 351(a)(2)(B) by contaminating
its generic Metformin with an IARC- and EPA-listed probable human
carcinogen known as N-nitrosodimethylamine.
Metformin is an oral antihyperglycemic drug used as a first-line
therapy in the treatment and management of type 2 diabetes, often
referred to as the "gold standard" of diabetes management because
it is well-tolerated and cost-effective, and has been generic for
decades.
Under federal law, pharmaceutical drugs must be manufactured in
accordance with cGMPs to assure they meet safety, quality, purity,
and strength standards. Otherwise, it is deemed "adulterated" and
may not be distributed or sold in the U.S.
Plaintiff asserts that he and other metformin consumers have been
deceived by Defendants about the impurities with their products by
expressly and impliedly warranted to them that their generic
Metformin products were the same as branded metformin containing
drugs, fit for their ordinary uses, and manufactured and
distributed in accordance with applicable laws and regulations.
By that means, the case also alleges Defendants for Breaches of
Express Warranties and Implied Warranties of Merchantability and
Fitness, violation of Magnuson-Moss Warranty Act and violations of
numerous State Consumer Protection Laws for engaging in unfair
competition or unfair or deceptive acts or practices.
Defendants Actavis, LLC, Teva Pharmaceutical Industries Ltd., and
Teva Pharmaceuticals USA, Inc. manufacture, sell, and distribute
drugs such as metformin.
CVS Health Corporation is a national retail pharmacy chain. [BN]
The Plaintiff is represented by:
Ruben Honik, Esq.
David J. Stanoch, Esq.
GOLOMB & HONIK, P.C.
1835 Market Street, Suite 2900
Philadelphia, PA 19103
Tel: 215-965-9177
Fax: 215-985-4169
Emails: rhonik@golombhonik.com
dstanoch@golombhonik.com
- and -
Allan Kanner, Esq.
Conlee S. Whiteley, Esq.
Layne Hilton, Esq.
Annemieke Tennis, Esq.
KANNER & WHITELEY, LLC
701 Camp Street
New Orleans, LA 70115
Tel: 504-524-5777
Fax: 504-524-5763
Emails: a.kanner@kanner-law.com
c.whiteley@kanner-law.com
l.hilton@kanner-law.com
a.tennis@kanner-law.com
- and -
John R. Davis, Esq.
SLACK DAVIS SANGER, LLP
6001 Bold Ruler Way, Suite 100
Austin, TX 78746
Tel: 512-795-8686
Fax: 512-795-8787
Emails: jdavis@slackdavis.com
- and -
Daniel A. Nigh, Esq.
LEVIN, PAPANTONIO, THOMAS, MITCH
RAFFERTY & PROCTOR, P.A.
316 S. Baylen Street, Suite 600
Pensacola, FL 32502
Tel: (850)435-7013
Fax: (850)436-6013
Email: dnigh@levinlaw.com
ADDUS HEALTHCARE: Court Dismisses Encinias From Moore Labor Suit
----------------------------------------------------------------
In the case, MARY MOORE, et al., Plaintiffs, v. ADDUS HEALTHCARE,
INC., et al., Defendants, Case No. 19-cv-01519-HSG (N.D. Cal.),
Judge Haywood S. Gilliam, Jr. of the U.S. District Court for the
Northern District of California granted both (i) the Plaintiffs'
counsel's motion to withdraw as attorney for Plaintiff Encinias,
and (ii) the Defendant's motion to dismiss Plaintiff Encinias for
failure to prosecute.
On July 11, 2017, Plaintiff Mary Moore filed the putative class
action in Alameda Superior Court. On March 21, 2019, an amended
complaint was filed, which added Alexandria Encinias as a Plaintiff
and Addus HomeCare, Inc. as a Defendant.
The Plaintiffs' counsel, Tatiana G. Avakian of Marlin & Saltzman,
LLP, first moved to withdraw as Plaintiff Encinias' attorney on
Sept. 23, 2019, citing Plaintiff Encinias' failure to comply with
her duties as a class representative and a break down in the
attorney-client relationship. The Plaintiffs' counsel then
withdrew the motion after Plaintiff Encinias contacted the counsel
and assured the Plaintiff's counsel of her ability to continue
prosecuting the action. Thereafter, however, the Plaintiffs'
counsel renewed her motion to withdraw as Plaintiff Encinias'
attorney on Oct. 29, 2019. The Counsel has made numerous attempts
to contact Plaintiff Encinias over the course of the case.
After a final attempt on Sept. 16, 2019, the counsel filed the
initial motion to withdraw as counsel. Thereafter, the counsel
again tried to contact Plaintiff Encinias on Oct. 7, 8, 10, and 14,
2019. Although the counsel heard from Plaintiff Encinias on Oct.
15, 2019, Plaintiff Encinias did not confirm attendance for the
October 22 deposition and thereafter again failed to respond to the
counsel. The counsel then renewed her motion to withdraw as
counsel for Plaintiff Encinias arguing that Plaintiff Encinias'
failure to communicate has created a conflict between the
Plaintiffs' Counsel's duty to Ms. Encinias and the duty to the
remaining class representative, Mary Moore, as well as putative
class members.
The Court set a hearing on the motion for Jan. 9, 2019, and
directed the counsel to inform Plaintiff Encinias that she should
appear at the hearing if she opposed counsel's motion to withdraw.
The counsel confirmed at the hearing that she emailed Ms. Encinias
the information. Because Plaintiff Encinias did not appear at the
hearing, it is unclear to the Court whether she opposes the
motion.
Judge Gilliam finds that Civil Local Rule 11-5(a) is satisfied.
The Plaintiff's counsel filed the instant motion over two months
ago and gave Plaintiff Encinias advance notice of withdrawal weeks
before by filing the previous withdrawal motion. Based upon the
discussion at the hearing, the Court is persuaded that the
Plaintiff's counsel filed the motion with a good faith belief that
there is good cause for withdrawal. Accordingly, the Court finds
in the exercise of his discretion that withdrawal is warranted.
The Court granted the motion to withdraw as counsel.
The Court finds that dismissal without prejudice is the less
drastic alternative, and the appropriate sanction given the facts
of the case. As previously noted, Plaintiff Moore remains a class
representative in the action, and the Plaintiffs' counsel seeks to
replace Plaintiff Encinias with another class representative to
move the case forward as planned. Although the Court recognizes
that Plaintiff Encinias' inaction has caused delay, the Defendant's
general investment of resources in the litigation will not be
rendered futile by dismissal of Plaintiff Encinias without
prejudice, given the continuation of the litigation. Furthermore,
allowing Plaintiff Encinias to become an absent class member should
the class be certified would not be prejudicial to the Defendant.
Because the majority of the factors weigh in favor of dismissal,
the Court finds that dismissal without prejudice of Plaintiff
Encinias for failure to prosecute is appropriate.
Accordingly, Jude Gilliam granted the Plaintiff counsel's motion to
withdraw as attorney. Further, the Court granted the Defendant's
motion to dismiss Plaintiff Encinias from the action without
prejudice for failure to prosecute under Rule 41(b). Plaintiff
Encinias' former counsel is directed to forward the Order to her.
A full-text copy of the District Court's Jan. 10, 2020 Order is
available at https://is.gd/kjxtD5 from Leagle.com.
Mary Moore, individually and on behalf of other members of the
general public similarly situated & Alexandria Encinias,
individually and on behalf of other members of the general public
similarly situated, Plaintiffs, represented by Edwin Aiwazian --
edwin@lfjpc.com -- Lawyers for Justice, PC, Stanley Donald Saltzman
-ssaltzman@marlinsaltzman.com -- Marlin & Saltzman, Tara Zabehi --
tara@lfjpc.com -- Lawyers for Justice, PC & Tatiana G. Avakian --
tavakian@marlinsaltzman.com -- Marlin Saltzman, LLP.
Addus Healthcare, Inc., an unknown business entity & Addus HomeCare
Corporation, an unknown business entity, Defendants, represented by
Gary Matthew McLaughlin -- gmclaughlin@akingump.com -- Akin Gump
Strauss Hauer & Feld, LLP, Gregory William Knopp --
gknopp@akingump.com -- Akin Gump Strauss Hauer & Feld LLP & Victor
A. Salcedo -- vsalcedo@akingump.com -- Akin Gump Strauss Hauer Feld
LLP.
AMC ENTERTAINMENT: Court Enters Protective Order in Securities Suit
-------------------------------------------------------------------
Judge Alison J. Nathan of the U.S. District Court for the Southern
District of New York has entered a Stipulated Protective Order in
the case, HAWAII STRUCTURAL IRONWORKERS PENSION TRUST FUND, et al.,
Individually and on Behalf of All Others Similarly Situated,
Plaintiff, v. AMC ENTERTAINMENT HOLDINGS, INC., ADAM M. ARON, CRAIG
R. RAMSEY, CHRIS A. COX, LIN ZHANG, JACK Q. GAO, MAOJUN ZENG,
ANTHONY J. SAICH, LLOYD HILL, GARY F. LOCKE, HOWARD W. KOCH, JR.,
KATHLEEN M. PAWLUS, CITIGROUP GLOBAL MARKETS INC., MERRILL LYNCH,
PIERCE, FENNER & SMITH INCORPORATED, BARCLAYS CAPITAL INC. and
CREDIT SUISSE SECURITIES (USA) LLC, Defendants, Case No.
1:18-cv-00299-AJN-SLC (S.D. N.Y.).
Disclosure and discovery activity in the Action may involve
production of information that is not publicly known, including
non-public personal information, trade secrets, or other
confidential research, development, or commercial information,
which is entitled to confidential treatment under the Federal Rules
of Civil Procedure (including Rule 26) or other applicable law,
regulation, or agreement. Therefore, pursuant to Federal Rules of
Civil Procedure 26 and 29, the Parties stipulated and agreed to the
Protective Order.
All Discovery Material (including, but not limited to, Confidential
Discovery Material, Data Protection Discovery Material, and Highly
Confidential Discovery Material) will be used solely for purposes
of the prosecution or defense of the Action and may not be used for
any other purpose whatsoever, including, but not limited to, any
business or commercial purpose, for dissemination to the media or
the public, or in connection with any other proceeding, whether
judicial, governmental, administrative, or arbitral or
contemplated, pending, or final. The Parties, the attorneys of
record for the Parties, and all other persons receiving Discovery
Material governed by this Protective Order will maintain such
Discovery Material in a secure manner so as to avoid disclosure of
its contents and take reasonable steps to ensure that Discovery
Material is (i) used only for the purposes specified herein and
(ii) disclosed only to authorized persons, as provided.
A Receiving Person may, at any time prior to the conclusion of
trial in the Action, submit a written objection to a designation
hereunder to a Designating Person. The Designating Person, within
14 days after receipt of a written challenge, must advise the
Receiving Person whether or not it will change the designation.
Within 90 days after final judgment in the Action, including the
exhaustion of all appeals, or within 90 days after dismissal
pursuant to a settlement agreement becomes final and not subject to
any further appeal, each Receiving Person, upon request of the
Producing Person in writing, is under an obligation to return to
the Producing Person, or undertake reasonable efforts to destroy,
all Confidential Discovery Material, Data Protection Discovery
Material, and Highly Confidential Discovery Material, and to
certify to the Producing Person that this destruction or return has
been completed. However, outside counsel for any Party is entitled
to retain all Court papers, trial transcripts, exhibits, and
attorney work product, provided that any such materials containing
Confidential Discovery Material, Data Protection Discovery
Material, or Highly Confidential Discovery Material, are maintained
and protected in accordance with the terms of the Order.
The Protective Order will be enforced by the sanctions set forth
in Fed. R. Civ. P. 37(a) and any other sanctions as may be
available to the presiding judge, including the power to hold
Parties or other violators of the Protective Order in contempt.
All other remedies available to any person injured by a violation
of the Protective Order are fully reserved.
The Order will become effective as a stipulation among the Parties
immediately upon its execution.
Nothing in the Order affects the parties' obligation to comply with
Rule 4 of the Court's Individual Practices in Civil Cases governing
redactions and filing under seal, or with any of the Court's other
Individual Practices as relevant.
A full-text copy of the Court's Jan. 10, 2020 Stipulated Protective
Order is available at https://is.gd/RpxmtZ from Leagle.com.
International Union of Operating Engineers Pension Fund of Eastern
Pennsylvania and Delaware, Lead Plaintiff, represented by James
Edward Miller -- jmiller@sfmslaw.com -- Shepherd, Finkelman, Miller
& Shah, LLP, Laurie Rubinow -- lrubinow@sfmslaw.com -- Shepherd,
Finkelman, Miller & Shah, LLC & Jayne Arnold Goldstein --
jgoldstein@sfmslaw.com -- Shepherd, Finkelman, Miller & Shah, LLP.
Hawaii Structural Ironworkers Pension Trust Fund, Individually and
on Behalf of All Others Similarly Situated, Plaintiff, represented
by Christopher Thomas Gilroy, Robbins Geller Rudman & Dowd, LLP,
David Avi Rosenfeld -- djr@rgrdlaw.com -- Robbins Geller Rudman &
Dowd LLP & Samuel Howard Rudman -- SRudman@rgrdlaw.com -- Robbins
Geller Rudman & Dowd LLP.
Warren Nichols, Individually and On Behalf of All Others Similarly
Situated, Plaintiff, represented by Jeremy Alan Lieberman --
jalieberman@pomlaw.com -- Pomerantz LLP & Joseph Alexander Hood, II
-- ahood@pomlaw.com -- Pomerantz LLP.
ARTIFICIAL GRASS: Class Claims in Bacon Dismissed Without Prejudice
-------------------------------------------------------------------
In the case, ADRIAN BACON, individually and on behalf of all others
similarly situated, Plaintiff, v. ARTIFICIAL GRASS LIQUIDATORS
LOCATION 1, INC.; and DOES 1 through 10, inclusive, and each of
them, Defendants, Case No. 8-18-cv-01220-JLS-ADS (C.D. Cal.), Judge
Josephine L. Staton of the U.S. District Court for the Central
District of California, Southern Division, (i) dismissed with
prejudice the Plaintiff's individual claims; (2) dismissed without
prejudice their class claims; and (3) sealed the parties'
settlement agreement. She concluded that the factors set forth in
Diaz v. Tr. Territory of Pac. Islands weigh in favor of dismissal.
A full-text copy of the Court's Feb. 19, 2020 Order is available at
https://is.gd/r3mFUk from Leagle.com.
Adrian Bacon, individually and on behalf of all others similarly
situated, Plaintiff, represented by James H. Bartolomei, III --
james@duncanfirm.com -- Duncan Firm PA.
Artificial Grass Liquidators Location 1, Inc., Defendant,
represented by Anahit Tagvoryan -- atagvoryan@blankrome.com --
Blank Rome & Harrison Maxwell Brown -- hbrown@blankrome.com --
Blank Rome.
ASHBRITT INC: Court Dismisses RICO Claims in Mason Suit
-------------------------------------------------------
In the case, CRAIG MASON, Plaintiff, v. ASHBRITT, INC., et al.,
Defendants, Case No. 19-cv-01062-DMR (N.D. Cal.), Magistrate Judge
Donna M. Ryu of the U.S. District Court for the Northern District
of California granted the Defendants' motion to dismiss Mason's
Racketeering Influenced and Corrupt Organizations Act ("RICO")
claims pursuant to Federal Rules of Civil Procedure 9(b) and
12(b)(6).
The case relates to property damage caused by the Northern
California wildfires of October 2017 and subsequent remediation
efforts. Defendants AshBritt and Tetra Tech, Inc. contracted with
the United States government to provide disaster relief services
following the fires.
Mason, a California resident, owned real property in Sonoma County
during the class period, which is defined as October 2017 to the
present. In October 2017, a series of wildfires caused extensive
damage throughout the Northern California counties of Sonoma, Napa,
Mendocino, and Lake, among others. The fires burned over 245,000
acres of land and destroyed over 14,700 homes. On Oct. 10, 2017,
President Trump ordered federal aid to assist the recovery efforts
in areas affected by the fires. The Federal Emergency Management
Agency ("FEMA") coordinated those efforts. The Army Corps of
Engineers ("ACE"), working under FEMA, oversaw and coordinated
contractors' clean up and debris removal work as part of the
recovery efforts. ACE contracted with AshBritt, a Florida
corporation, to manage the Project.
Mason, a property owner in Sonoma County, filed the putative class
action on Feb. 26, 2019, alleging that the Defendants caused
property damage and engaged in fraudulent conduct during their
remediation efforts. Both AshBritt and Tetra Tech personnel were
personally involved in overseeing work performed on each property
involved in the Project. According to Mason, these personnel
instructed subcontractors to over-excavate properties where proper
testing had not been conducted. Allegedly, the Defendants told
state and federal agencies that properties were uncontaminated when
either the contamination results were falsified or had not been
done at all. Mason claims that the Defendants directed or
knowingly permitted subcontractors' over-excavation in furtherance
of the common purpose of increasing profits at the expense of the
United States government and to the detriment of the Plaintiffs.
Mason alleges that this conduct was part of a "cleanup enterprise"
between AshBritt and Tetra Tech. According to Mason, this
enterprise has existed for at least four years and involved at
least six other joint projects. Similar to the Northern California
wildfire project, AshBritt engaged subcontractors for these other
projects while Tetra Tech monitored the debris removal. Mason
claims that the fundamental goal of the enterprise was to maximize
the profits of AshBritt and Tetra Tech by over-excavating on
subject properties and unnecessarily removing non-debris material
without testing for contamination.
In furtherance of the joint enterprise, the Defendants allegedly
submitted false attestations and statements to ACE certifying that
they had removed necessary amounts of debris and soil from subject
properties only after proper contamination testing. Mason avers
that the Defendants "communicated with each other via daily mail
and e-mail correspondence in furtherance of their scheme to defraud
the U.S. government. He alleges that Defendants generated and
submitted false reports to government agencies daily between
October 2017 and the present. According to Mason, the Defendants
represented to the U.S. government that they had only removed
contaminated soil and debris from each property when in fact they
(1) removed excess soil that was not contaminated; (2) removed
trees that did not fit the ACE criteria for removal; and (3) failed
to remove contaminated soil. These false reports were allegedly
submitted through mail, e-mail, and the online load ticket system.
Mason brings claims on behalf of the class, alleging that the
Defendants violated RICO by unlawfully maintaining an enterprise
for the purpose of defrauding the U.S. government. He also asserts
numerous state law tort claims, including trespass, conversion,
trespass to chattels, and violations of the California's Unfair
Competition Law ("UCL"). He seeks a judgment awarding class
benefits for actual, compensatory, and liquidated damages;
injunctive relief prohibiting further unlawful conduct; restitution
and disgorgement; civil and statutory penalties; interest; and
attorneys' fees and costs.
The Defendants move to dismiss Mason's RICO claims under Rule
12(b)(6).
Mason alleges the contents of the ACE contract in the complaint,
but the document is not physically attached to his pleading. No
party raised a question of authenticity as to the document.
Accordingly, the incorporation by reference doctrine applies and
judicial notice is not required for the court to consider the ACE
contract. Judge Ryu denied as moot Mason's request for judicial
notice.
Turning to the motions to dismiss, Judge Ryu holds that Mason has
not pleaded the requisite causation to substantiate a RICO claim,
and therefore does not reach the question of whether Mason has
adequately pleaded the other elements of his RICO claim. The Judge
further holds that Mason's conspiracy claim fails as he has not
pleaded an underlying RICO violation. Mason and the putative class
are not the appropriate Plaintiffs to bring a RICO claim based on
the Defendants' alleged fraud against the U.S. government. As
Mason has failed to show that he has standing to pursue a RICO
claim under section 1962(c), his conspiracy claim under section
1962(d) also fails.
And, although it seems unlikely, the Court cannot say with
certainty that amendment of the pleadings would be futile.
Therefore, Mason is granted leave to amend his complaint with
respect to the RICO claims, the Court orders.
For the foregoing reasons, Judge Ryu granted the Defendants' motion
to dismiss Mason's RICO claims. Mason was given until Jan. 24 to
file an amended complaint.
A full-text copy of the District Court's Jan. 10, 2020 Order is
available at https://is.gd/ZySoGZ from Leagle.com.
Craig Mason, Plaintiff, represented by Kevin M. Osborne, The Arns
Law Firm, Julie C. Erickson, The Arns Law Firm, Shounak Sanjeev
Dharap -- shounak.dharap@gmail.com -- The Arns Law Firm & Robert
Stephen Arns -- rarns@usfca.edu -- The Arns Law Firm.
ASHBRITT, INC., Defendant, represented by Gayle M. Athanacio --
gathanacio@rjo.com -- Rogers Joseph & O'Donnell.
Tetra Tech, Inc., Defendant, represented by James Harold Vorhis --
jvorhis@nossaman.com -- Nossaman LLP, David C. Lee --
dlee@nossaman.com -- Nossaman LLP & Jill Nicole Jaffe --
jjaffe@nossaman.com -- Nossaman LLP.
AT&T SERVICES: Dist. Ct. Judgment in Gadehak TCPA Suit Affirmed
---------------------------------------------------------------
In the case, ALI GADELHAK, on behalf of himself and all others
similarly situated, Plaintiff-Appellant, v. AT&T SERVICES, INC.,
Defendant-Appellee, Case No. 19-1738 (7th Cir.), the U.S. Court of
Appeals for the Seventh Circuit affirmed the district court
judgment that AT&T's system did not qualify as an "automatic
telephone dialing system" because it lacked the capacity to
generate random or sequential numbers.
The dispute stems from AT&T's "Customer Rules Feedback Tool," a
device that sends surveys to customers who have interacted with
AT&T's customer service department. Using this tool, AT&T sent
Chicago resident Gadelhak five text messages asking survey
questions in Spanish. But Gadelhak is neither an AT&T customer nor
a Spanish speaker, and his number is on the national "Do Not Call
Registry." Annoyed by the texts, Gadelhak brought a putative class
action against AT&T for violating the Telephone Consumer Protection
Act, which Congress enacted in 1991 to address the problem of
intrusive telemarketing.
With some exceptions not relevant in the case, the Act prohibits
the use of an "automatic telephone dialing system" to call or text
any cellular phone without the prior consent of the recipient, as
well as to call certain hospital numbers. The success of
Gadelhak's suit depends on whether AT&T's feedback tool meets the
definition. Unfortunately, the awkward statutory wording, combined
with changes in technology, makes it a very difficult question.
At the time that the TCPA was passed, telemarketers primarily used
systems that randomly generated numbers and dialed them, and
everyone agrees that such systems meet the statutory definition.
But that's not how AT&T's customer feedback tool works. The
system, like others commonly used today, pulls and dials numbers
from an existing database of customers rather than randomly
generating them. (Given that its tool pulls exclusively from its
customer database, AT&T posits that Gadelhak received messages
because of a typographical error.)
Determining whether such systems meet the statutory definition has
forced courts to confront an awkwardness in the statutory language
that apparently didn't matter much when the statute was enacted:
it's not obvious what the phrase using a random or sequential
number generator modifies. The answer to that question dictates
whether the definition captures only the technology that
predominated in 1991 or is broad enough to encompass some of the
modern, database-focused systems.
The Seventh Circuit begins with the interpretation adopted by the
Third and Eleventh Circuits. Under their reading, the phrase
"using a random or sequential number generator" modifies both
"store" and "produce," defining the means by which either task must
be completed for equipment to qualify as an "automatic telephone
dialing system." Notwithstanding the difficulties posed by the
interpretation, the Seventh Circuit thinks that the language bears
it. But because of those difficulties, the Court proceeds to
consider whether any of the other possibilities fares better.
The district court favored the next option: that "using a random or
sequential number generator" modifies the "telephone numbers" that
are dialed. Under this interpretation, an "automatic telephone
dialing system" is equipment with the capacity to store or produce
telephone numbers generated using a random or sequential number
generator as well as the capacity to dial those numbers. Because
AT&T's system cannot generate random strings of numbers for itself
and instead dials only existing numbers from AT&T accounts, the
district court held that it could not satisfy the statutory
definition. The Seventh Circuit opines that although the district
court's version of the statute is clearer and therefore tempting,
"the Court's task is to interpret the words of Congress, not add to
them." The words of Congress, as written, do not permit the second
interpretation.
Gadelhak presses the third option: that the phrase "using a random
or sequential number generator" modifies only the equipment's
capacity to "produce." To Gadelhak, it doesn't matter that AT&T's
system cannot generate random or sequential 10-digit numerical
strings. As he sees it, the capacity to produce numbers using a
random number generator is only one means of meeting the statutory
definition.
Considering the statute as a whole, that result makes little sense.
The Act's other provisions address narrow conduct much more likely
to be performed by telemarketers than by private citizens -- for
example, the use of "an artificial or prerecorded voice." The
definition of an "automatic telephone dialing system" would be an
outlier within the statutory scheme if it were to capture such a
wide swath of everyday conduct. Gadelhak's rationale for choosing
an atextual interpretation is therefore unpersuasive.
There is one final possibility: that "using a random or sequential
number generator" modifies how the telephone numbers are "to be
called." In other words, the definition captures devices with the
capacity to store or to produce telephone numbers that will be
dialed by a random or sequential number generator.
Satisfied that "using a random or sequential number generator" does
not describe how the numbers are "to be called," the Seventh
Circuit is left again with the first interpretation. It is
admittedly imperfect. But it lacks the more significant problems
of the other three interpretations and is thus the best reading of
a thorny statutory provision. The Court, therefore, holds that the
phrase "using a random or sequential number generator" describes
how the telephone numbers must be "stored" or "produced."
Based on the foregoing, the Seventh Circuit concludes that "using a
random or sequential number generator" modifies both "store" and
"produce." The system at issue in te case, AT&T's "Customer Rules
Feedback Tool," neither stores nor produces numbers using a random
or sequential number generator; instead, it exclusively dials
numbers stored in a customer database. Thus, it is not an
"automatic telephone dialing system" as defined by the Act -- which
means that AT&T did not violate the Act when it sent unwanted
automated text messages to Gadelhak.
The district court held that AT&T's system did not qualify as an
"automatic telephone dialing system" because it lacked the capacity
to generate random or sequential numbers. Although the Seventh
Circuit adopts a different interpretation of the statute, under its
reading, too, the capacity to generate random or sequential numbers
is necessary to the statutory definition. The Seventh Circuit
therefore adopts the district court's judgment.
A full-text copy of the Court's Feb. 19, 2020 Opinion is available
at https://is.gd/cZKtgQ from Leagle.com.
Andrew John Pincus, for Defendant-Appellee.
Keith J. Keogh, for Plaintiff-Appellant.
Hans Germann -- hgermann@mayerbrown.com -- for Defendant-Appellee.
Steven Gregory White, for Amicus Curiae.
Kyle J. Steinmetz -- ksteinmetz@mayerbrown.com -- for
Defendant-Appellee.
Shay Dvoretzky, for Amicus Curiae.
Marc Rotenberg, for Amicus Curiae.
Timothy J. Sostrin -- TSostrin@KeoghLaw.com -- for
Plaintiff-Appellant.
BANK OF AMERICA: Net Settlement Fund Distribution in AEPF Suit OK'd
-------------------------------------------------------------------
In the case, ALASKA ELECTRICAL PENSION FUND, et al., Plaintiffs, v.
BANK OF AMERICA, CORPORATION, et al., Defendants, Case No.
14-CV-7126 (JMF) (S.D. N.Y.), Judge Jesse M. Furman of the U.S.
District Court for the Southern District of New York (i) granted
the Lead Counsel's motion for Court approval to make distributions
of net settlement funds to the claimants with valid claims, and
(ii) overruled the objection of Fortinbras Asset Management GmbH,
formerly known as Prospero Beteiligungsverwaltung GmbH.
The long-lasting and complex class action, institutional investors
alleged that many of the world's largest banks illegally
manipulated the U.S. Dollar ISDAfix, a benchmark interest rate
incorporated into a broad range of financial derivatives. After
more than three years of litigation, the Plaintiffs reached
settlements with each Defendant, all of which were approved by the
Court, along with proposed plans of distribution. Pursuant to the
Court's Orders, the claims administrator, Epiq Systems, Inc.,
published notice of the settlements and received and reviewed
individual claims.
The Class Counsel now moves for Court approval to make
distributions of net settlement funds to claimants with valid
claims. Only one claimant -- Fortinbras -- has filed an objection,
on the ground that Epiq wrongfully rejected certain of its claims.
Following the settlements, Epiq distributed more than 59,000 notice
packets to potential class members advising them of the settlement.
Epiq ultimately received more than 31,000 claims before the filing
deadlines set by the settlements. Of those claims, Epiq determined
that 2,369 should be rejected in full and that 28,750 are eligible
for payment. Epiq valued 23,413 of those claims at equal to or
less than $100; of the remaining authorized claimants, 5,124 are
eligible to receive payments averaging $64,897.32 total from both
settlement funds, and 213 are eligible to receive payments
averaging $6,289.21 from the later settlement fund only.
The Class Counsel proposes multiple rounds of distributions to
claimants with valid claims. In the initial distribution, the
claimants with valid claims equal to or less than $100 in value
would receive an "alternative minimum payment" of $100 in order to
"preserve the value of the Settlement Funds" by incentivizing
claimants to cash their checks, which reduces the costs incurred by
the claims administrator.
The other claimants with valid claims would receive, in the first
instance, pro rata distributions of 92% of the balance of the
settlement funds -- that is, after the alternative minimum payments
(which total less than 1% of the funds) are deducted. The
remaining 8% of the settlements would be held in reserve "to
address any contingencies that may arise with respect to" the
initial distribution or to pay costs incurred in the administration
of the settlement funds, as later authorized by the Court.
If any funds remained after such costs were deducted, they would be
distributed to claimants unless Epiq and the Class Counsel
determine that further distribution would not be cost-effective, in
which case the Class Counsel would seek the Court's permission to
approve a final distribution to a non-profit organization.
As noted, there are no objections to this plan or to the manner in
which the settlements have been administered. Upon review of the
Class Counsel's submissions, Judge Furman finds that it is for good
reason: Because the proposed distributions are in the best
interests of the class.
Upon review of the Class Counsel's motion papers, Judge Furman is
satisfied that the proposed distribution framework -- to which no
one objects -- is fair and reasonable. The record makes plain that
the notice and claim review process was diligently and effectively
completed. Moreover, whether or to what extent such an award may
be appropriate is an issue for another day. In short, the general
framework of the Class Counsel's proposed distributions is fair and
reasonable, and he thus grants the Class Counsel's motion for
approval.
That leaves only the objection filed by Fortinbras -- which is not
to the distribution plan, but instead to Epiq's rejection of
certain of its claims. Notably, despite the fact that 31,119
claims were submitted, Fortinbras is the only claimant that has
challenged Epiq's determinations. Fortinbras complains that the
Class Counsel's proposal improperly excludes from distribution
certain claims relating to alleged trades of interest rate swaps
that incorporated the ISDAfix rate. The Class Counsel, for their
part, agrees with Epiq's conclusion -- following a year-long audit
-- that the disputed claims should be excluded because Fortinbras
has not provided sufficient evidence that the trades giving rise to
Fortinbras's claims actually occurred.
The Judge concludes that Epiq properly rejected Fortinbras'
disputed claims because Fortinbras failed to prove that it engaged
in real transactions. Fortinbras seeks to justify the lack of
evidence by asserting that it had agreed with Credit Suisse to
create only "minimal documentation" because each trade would be
"unwound one business day after being opened. But, putting aside
the improbability that Credit Suisse and Fortinbras would engage in
transactions totaling more than $3 trillion in notional value based
on such paltry documentation, Fortinbras's assertion undermines,
rather than salvages, its claims.
One risk of creating so little documentation is that, if the
existence or validity of a trade is later questioned, the parties
to the transaction would be hard-pressed to prove it. The
documents provided here suggest only that Fortinbras assisted in
the calculation of an index to which other financial products were
linked. No evidence suggests, let alone proves, that Fortinbras
purchased any of those products -- a conclusion that is reinforced
by the fact that Credit Suisse searched its records and was "unable
to identify any transactions with Fortinbras during the relevant
period. Accordingly, the Judge holds that Epiq and the Class
Counsel did not err in finding the disputed claims invalid and
excluding them from the proposed distribution.
For the reasons he stated, Judge Furman granted the Class Counsel's
motion to approve the distribution of net settlement funds in the
manner described in their supporting papers, and overruled
Fortinbras's objection. Consistent with those rulings, the Judge
has signed, and will docket, the Class Counsel's proposed order
approving the distribution plan. The Clerk of Court is directed to
terminate ECF No. 746.
A full-text copy of the Court's Feb. 26, 2020 Memorandum Opinion &
Order is available at https://is.gd/q5BP0T from Leagle.com.
Alaska Electrical Pension Fund, Plaintiff, represented by
Christopher M. Burke -- cburke@scott-scott.com -- Thomas Kay
Boardman -- tboardman@scott-scott.com -- Sylvia Sokol --
ssokol@scott-scott.com -- Kristen M. Anderson -- kanderson@scott-
scott.com -- at Scott Scott, LLP; Daniel Lawrence Brockett --
danbrockett@quinnemanuel.com -- Daniel Paul Cunningham --
danielcunningham@quinnemanuel.com -- Marc Laurence Greenwald --
marcgreenwald@quinnemanuel.com -- Steig Olson --
steigolson@quinnemanuel.com -- Jeremy Daniel Andersen --
jeremyandersen@quinnemanuel.com -- Jonathan Bacon Oblak --
jonoblak@quinnemanuel.com -- at Quinn Emanuel Urquhart & Sullivan
LLP; David W. Mitchell -- davidm@rgrdlaw.com -- Patrick Joseph
Coughlin -- patc@rgrdlaw.com -- Brian O. O'Mara --
bomara@rgrdlaw.com -- Randi Dawn Bandman -- randib@rgrdlaw.com --
at Robbins Geller Rudman & Dowd LLP; Ronald Judah Aranoff --
Aranoff@bernlieb.com -- Stanley D. Bernstein --
Bernstein@bernlieb.com -- at Bernstein Liebhard, LLP
Genesee County Employees' Retirement System, Plaintiff,
represented by Christopher M. Burke -- cburke@scott-scott.com --
at Scott Scott, LLP; Daniel Lawrence Brockett--
danbrockett@quinnemanuel.com -- at at Quinn Emanuel Urquhart &
Sullivan LLP
Magnolia Regional Health Center, Plaintiff, represented by Stuart
Halkett McCluer -- R. Bryant McCulley -- at McCulley McCluer PLLC;
Michael C. Dell'Angelo -- mdellangelo@bm.net -- at Berger &
Montague, P.C.; Daniel Lawrence Brockett --
danbrockett@quinnemanuel.com -- Jonathan Bacon Oblak --
jonoblak@quinnemanuel.com -- at Quinn Emanuel Urquhart & Sullivan
LLP
The County of Beaver, Plaintiff, represented by Daniel Lawrence
Brockett -- danbrockett@quinnemanuel.com -- Jonathan Bacon Oblak -
- jonoblak@quinnemanuel.com -- at Quinn Emanuel Urquhart &
Sullivan LLP
The City of New Britain, Plaintiff, represented by Christopher M.
Burke -- cburke@scott-scott.com -- Donald A. Broggi --
dbroggi@scott-scott.com -- Peter Anthony Barile, III --
pbarile@scott-scott.com -- at Scott Scott, L.L.P.; Daniel Lawrence
Brockett -- danbrockett@quinnemanuel.com -- Jonathan Bacon Oblak -
- jonoblak@quinnemanuel.com -- at Quinn Emanuel Urquhart &
Sullivan LLP
The County of Westmoreland, Plaintiff, represented by Daniel
Lawrence Brockett -- danbrockett@quinnemanuel.com -- Jonathan
Bacon Oblak -- jonoblak@quinnemanuel.com -- at Quinn Emanuel
Urquhart & Sullivan LLP
The County of Montgomery, Plaintiff, represented by Christopher M.
Burke -- cburke@scott-scott.com -- Daniel Lawrence Brockett --
danbrockett@quinnemanuel.com -- Jonathan Bacon Oblak --
jonoblak@quinnemanuel.com -- at Quinn Emanuel Urquhart & Sullivan
LLP; Peter Anthony Barile, III -- pbarile@scott-scott.com -- at
Scott Scott, L.L.P.; Charles Thomas Caliendo --
ccaliendo@gelaw.com -- Robert Gerard Eisler -- reisler@gelaw.com -
- at Grant & Eisenhofer P.A.
The County of Washington, Plaintiff, represented by Christopher M.
Burke -- cburke@scott-scott.com -- Daniel Lawrence Brockett --
danbrockett@quinnemanuel.com -- Jonathan Bacon Oblak --
jonoblak@quinnemanuel.com -- at Quinn Emanuel Urquhart & Sullivan
LLP; Donald A. Broggi -- dbroggi@scott-scott.com -- Peter Anthony
Barile, III -- pbarile@scott-scott.com -- at Scott Scott, L.L.P.
Bank Of America Corporation, Defendant, represented by Adam Selim
Hakki -- ahakki@shearman.com -- Richard Franklin Schwed --
rschwed@shearman.com -- at Shearman & Sterling LLP
Barclays Bank PLC, Defendant, represented by Alexander John
Willscher -- willschera@sullcrom.com -- Benjamin Robert Walker --
walkerb@sullcrom.com -- David Harold Braff -- braffd@sullcrom.com
-- Jeffrey T. Scott -- scottj@sullcrom.com -- Matthew Joseph
Porpora -- porporam@sullcrom.com -- Matthew Alexander Schwartz --
schwartzmatthew@sullcrom.com -- at Sullivan & Cromwell, LLP;
Andrew Zenner Michaelson -- amichaelson@bsfllp.com -- Jonathan
David Schiller -- jschiller@bsfllp.com -- at Boies, Schiller &
Flexner, LLP
BNP Paribas SA, Defendant, represented by Alejandro Hari Cruz --
acruz@pbwt.com -- Deirdre Ann McEvoy -- Joshua Aaron Goldberg --
jgoldberg@pbwt.com -- Amy Neda Vegari -- avegari@pbwt.com --
William Francis Cavanaugh, Jr. -- wfcavanaugh@pbwt.com -- at
Patterson, Belknap, Webb & Tyler LLP
CitiGroup Inc., Defendant, represented by Alan M. Wiseman --
awiseman@cov.com -- Andrew D. Lazerow -- alazerow@cov.com --
Andrew Arthur Ruffino -- aruffino@cov.com -- Jamie A. Heine --
jheine@cov.com -- at Covington & Burling, L.L.P.
Deutsche Bank AG, Defendant, represented by James L. Brochin --
jbrochin@paulweiss.com -- Moses Silverman --
msilverman@paulweiss.com -- Aaron Sean Delaney --
adelaney@paulweiss.com -- at Paul, Weiss, Rifkind, Wharton &
Garrison LLP
HSBC Bank USA, N.A. and HSBC Bank PLC, Defendants, represented by
Edwin R. Deyoung -- Andrew L. Fish -- Gregory Thomas Casamento --
gcasamento@lockelord.com -- Roger Brian Cowie --
rcowie@lockelord.com -- at Locke Lord Bissell & Liddell LLP
Royal Bank of Scotland PLC, Defendant, represented by Jay B.
Kasner -- jay.kasner@skadden.com -- Paul Madison Eckles --
paul.eckles@skadden.com -- Shepard Goldfein --
shepard.goldfein@skadden.com -- Thomas Mcauley Leineweber --
thomas.leineweber@skadden.com -- at Skadden, Arps, Slate, Meagher
& Flom LLP
UBS AG, Defendant, represented by Peter Sullivan --
psullivan@gibsondunn.com -- Eric Jonathan Stock --
estock@gibsondunn.com -- Jefferson Eliot Bell --
jbell@gibsondunn.com -- Joel Steven Sanders --
jsanders@gibsondunn.com -- Lawrence Jay Zweifach --
lzweifach@gibsondunn.com -- Nathaniel L. Bach -- at Gibson, Dunn &
Crutcher, LLP
Nomura Securities International, Inc., Defendant, represented by
Joseph John Frank -- joseph.frank@shearman.com -- Brian Howard
Polovoy -- bpolovoy@shearman.com -- Heather Lamberg Kafele --
hkafele@shearman.com -- Katherine Mallory Tosch Brennan --
mallory.brennan@shearman.com -- at Shearman & Sterling LLP
JPMorgan Chase & Co., Defendant, represented by Arthur J. Burke --
arthur.m.t.burke@davispolk.com -- at Davis Polk & Wardwell
Wells Fargo Bank, N.A., Defendant, represented by Eric Jonathan
Seiler -- eseiler@fklaw.com -- Andrew W. Goldwater --
agoldwater@fklaw.com -- Anne Elizabeth Beaumont --
abeaumont@fklaw.com -- Jamuna D. Kelley -- jkelley@fklaw.com --
Priyanka Kishore Wityk -- pwityk@fklaw.com -- at Friedman, Kaplan,
Seiler & Adelman, LLP
Morgan Stanley & Co. LLC, Defendant, represented by Kenneth Ian
Schacter -- kenneth.schacter@morganlewis.com -- Anthony R. Van
Vuren -- anthony.vanvuren@morganlewis.com -- Jon Randall Roellke -
- jon.roellke@morganlewis.com -- at Morgan Lewis & Bockius, LLP
Credit Suisse AG, New York Branch, Defendant, represented by David
George Januszewski -- djanuszewski@cahill.com -- Herbert Scott
Washer -- hwasher@cahill.com -- Landis C. Best -- lbest@cahill.com
-- at Cahill Gordon & Reindel LLP
The Goldman Sachs Group, Inc., Defendant, represented by Elizabeth
Vicens -- evicens@cgsh.com -- Leah Brannon -- lbrannon@cgsh.com --
Sue Siyan Guan -- sguan@cgsh.com -- Thomas J. Moloney --
tmoloney@cgsh.com -- at Cleary Gottlieb Steen & Hamilton LLP
ICAP Capital Markets, LLC, Defendant, represented by Brian S.
Fraser -- bfraser@rkollp.com -- Rowan Gaither, IV --
rgaither@rkollp.com -- Shari A. Brandt -- sbrandt@rkollp.com -- at
Richards Kibbe & Orbe LLP
BAUSCH HEALTH CO: MSP Recovery Sues Over Diabetes Drug Monopoly
---------------------------------------------------------------
MSP Recovery Claims, Series LLC, Plaintiff, v. Bausch Health
Companies Inc., Salix Pharmaceuticals, Ltd., Salix Pharmaceuticals,
Inc., Santarus, Inc., Assertio Therapeutics, Inc., Lupin
Pharmaceuticals, Inc. and Lupin Ltd., Defendants, Case No.
20-cv-20555, (S.D. Fla., February 6, 2020) seeks to recover
damages, interest, costs of suit and reasonable attorneys' fees
resulting from anticompetitive foreclosure of Glumetza in violation
of the Sherman Act and various state antitrust, state consumer
protection and common laws.
MSP purchased branded Glumetza from Defendants. MSP is a Medicare
Advantage Organization that provides Medicare benefits to
Medicare-eligible beneficiaries enrolled under the Medicare
Advantage program.
Defendants are pharmaceutical companies involved in the manufacture
of Glumetza, a diabetes medication used to prevent and control high
blood sugar. [BN]
Plaintiff is represented by:
Andres Rivero, Esq.
Jorge A. Mestre, Esq.
Charles E. Whorton, Esq.
David L. Daponte, Esq.
RIVERO MESTRE LLP
2525 Ponce de Leon Blvd., Suite 1000
Miami, FL 33134
Telephone: (305) 445-2500
Facsimile: (305) 445-2505
E-mail: arivero@riveromestre.com
jmestre@riveromestre.com
cwhorton@riveromestre.com
ddaponte@riveromestre.com
npuentes@riveromestre.com
BIMBO BAKERIES: Court Dismisses Peatry's Post-May 8, 2018 Claims
----------------------------------------------------------------
In the case, LISA PEATRY, individually, and on behalf of all others
similarly situated, Plaintiff, v. BIMBO BAKERIES USA, INC.,
Defendant, Case No. 19 C 2942 (N.D. Ill.), Judge Sara L. Ellis of
the U.S. District Court for the Northern District of Illinois,
Eastern Division, granted in part and denied in part Bimbo's motion
to dismiss.
Plaintiff Peatry, an employee of Defendant Bimbo, filed the
putative class action lawsuit alleging that Bimbo violated the
Illinois Biometric Information Privacy Act ("BIPA"), through its
collection, storage, and use of Peatry's biometric information.
Specifically, Peatry brings claims for (1) Bimbo's failure to
institute, maintain, and adhere to a publicly available retention
schedule in violation of BIPA Section 15(a); (2) Bimbo's failure to
obtain informed, written consent before obtaining biometric
information in violation of BIPA Section 15(b); and (3) Bimbo's
disclosure of biometric information before obtaining consent in
violation of BIPA Section 15(d).
Bimbo, a bakery product manufacturing company, uses a biometric
timekeeping device, provided by a third party, to track employees'
hours. Upon hiring an employee, Bimbo scans their fingerprints and
enrolls them in an employee database. Employees must then use
their fingerprints to clock in and clock out. Bimbo does not
inform its employees that it discloses the biometric information it
collects to its third-party vendor and other third parties that
host the database. Bimbo also does not obtain written releases
before collecting the fingerprints or provide employees with a
written, publicly available policy identifying a retention schedule
and guidelines for permanently destroying employees' fingerprints.
Peatry worked for Bimbo as a machine operator at Bimbo's facility
at 1540 S. 54th Avenue in Cicero, Illinois. Aryzta owned the
facility until Bimbo acquired it on Feb. 9, 2018. Bimbo entered
into a collective bargaining agreement ("CBA") with the Chemical
and Production Workers Union Local No. 30, AFL-CIO, which became
effective May 8, 2018.
Among other things, the CBA provides Bimbo with certain exclusive
management rights, including to make and enforce reasonable plant
rules of conduct and regulations not inconsistent with the
provisions of the CBA, to introduce new and improved methods,
materials, equipment or facilities," and "to change or eliminate
existing methods, materials, equipment, or facilities. The CBA
also sets forth negotiated wage tables. Finally, the CBA includes
a grievance procedure, requiring employees to pursue disputes
regarding the meaning and application of the terms of" the CBA in
accordance with that procedure.
During her employment at the facility between September 2016 and
February 2019, Peatry scanned her fingerprints every time she
clocked in and out of work as part of the facility's timekeeping
method. Bimbo never informed her of the purposes or length of time
for which Bimbo collected, stored, used, and disseminated her
biometric data. Bimbo also never informed her of a biometric data
retention policy or whether Bimbo would at some point permanently
delete her biometric data.
Peatry never received or signed a written release authorizing the
collection, storage, use, and dissemination of her biometric data.
She would not have provided her biometric data if she knew that
Bimbo would retain it for an indefinite period of time without her
consent. She also would not have agreed to the compensation she
received had she known that Bimbo would retain her biometric data
indefinitely.
Bimbo moves to dismiss the complaint, arguing that Section 301 of
the Labor Management Relations Act of 1947 (the "LMRA") and the
National Labor Relations Act of 1935 ("NLRA") preempt Peatry's
claims. Alternatively, it argues that Peatry has failed to state a
BIPA claim and that the Illinois Workers Compensation Act ("IWCA")
bars her claims.
Judge Ellis holds that Peatry's BIPA claims require interpretation
of the CBA, meaning that Section 301 preempts her BIPA claims
regardless of whether the Court treats her rights under BIPA as
nonnegotiable. And although the LMRA does not provide a separate
vehicle for asserting claims like the RLA, the CBA includes a
grievance procedure through which Peatry arguably could have raised
her claims.
Because Section 301 preempts Peatry's post-May 8, 2018 claims,
Judge Ellis must determine the appropriate remedy. The Supreme
Court has indicated that a preempted state law claim must either be
treated as a Section 301 claim, or dismissed as pre-empted by
federal labor-contract law. Employees must exhaust administrative
remedies before bringing suit in federal court unless certain
exceptions apply. Peatry has not set forth allegations to allow
the Court to treat her claims as Section 301 claims, and it appears
she did not properly exhaust her administrative remedies. Although
Peatry may have an argument concerning the futility of exhaustion
or the unavailability of the grievance procedure, Judge Ellis
cannot make such determinations on the information before it.
Judge Ellis therefore finds it appropriate to dismiss Peatry's
post-May 8, 2018 claims without prejudice and allow Peatry to
evaluate how she wishes to proceed with respect to these preempted
claims.
Judge Ellis concludes that Section 301 of the LMRA preempts
Peatry's claims arising after May 8, 2018, when a collective
bargaining agreement governing Peatry's employment went into
effect. But Peatry may proceed on her pre-May 8, 2018 claims,
which neither the NLRA or IWCA preempt and sufficiently allege BIPA
violations. For these reasons, she granted in part and denied in
part Bimbo's motion to dismiss. She dismissed Peatry's post-May 8,
2018 claims without prejudice.
A full-text copy of the Court's Feb. 26, 2020 Opinion & Order is
available at https://is.gd/UB18PY from Leagle.com.
Lisa Peatry, individually, and on behalf of all others similarly
situated, Plaintiff, represented by Ryan F. Stephan --
rstephan@stephanzouras.com -- Stephan, Zouras, LLP & Catherine T.
Mitchell -- cmitchell@stephanzouras.com -- Stephan Zouras, LLP.
Bimbo Bakeries USA, Inc., Defendant, represented by Elizabeth
Brooke Herrington -- beth.herrington@morganlewis.com -- Morgan,
Lewis & Bockius LLP, Alex David Berger --
alex.berger@morganlewis.com -- Morgan, Lewis & Bockius LLP & Tyler
Zachary Zmick -- tyler.zmick@morganlewis.com -- Morgan, Lewis &
Bockius Llp.
BRUNEL RESOURCES: Shortchanges Workers' Overtime Pay, Jonson Claims
-------------------------------------------------------------------
Michael Jonson, individually and on behalf of all others similarly
situated, Plaintiff, v. Brunel Resources, Inc., Defendant, Case No.
20-cv-00374 (S.D. Tex., February 3, 2020), seeks to recover unpaid
overtime compensation, liquidated damages, attorneys' fees, and
costs under the provisions of the Fair Labor Standards Act of
1938.
Brunel is a staffing company that places workers with its client
companies in the oil and gas, mining, engineering, manufacturing
and IT industries across the U.S. Jonson worked for Brunel as a
construction coordinator from approximately March 2018 to January
2020. He claims to have regularly worked more than 8 hours per day
and 40 hours per week but not paid any additional wages for
overtime. [BN]
Plaintiff is represented by:
Don J. Foty, Esq.
HODGES & FOTY, LLP
4409 Montrose Blvd, Ste. 200
Houston, TX 77006
Telephone: (713) 523-0001
Facsimile: (713) 523-1116
Email: dfoty@hftrialfirm.com
CAREMARK PHC: BPP Junk Fax Row Removed to E.D. Mo.
--------------------------------------------------
The case captioned BPP, individually and on behalf of other members
of the public similarly situated, Plaintiff, v. Caremark PHC, LLC
and Does 1 through 100, inclusive, Defendants, Case No.
19SL-CC05616 filed in the 21st Judicial Circuit Court of Missouri
on December 6, 2019, was removed to the U.S. District Court for the
Eastern District of Missouri on January 27, 2020 under Case No.
20-cv-00126.
BPP alleges that Caremark, operating as "CVS Caremark" violated the
Telephone Consumer Protection Act of 1991, as amended by the Junk
Fax Prevention Act of 2005, by sending a facsimile message on
September 4, 2019. [BN]
Plaintiff is represented by:
Ronald J. Eisenberg, Esq.
Robert Schultz, Esq.
SCHULTZ & ASSOCIATES LLP
640 Cepi Drive, Suite A
Chesterfield, MO 63005
Telephone: (636) 733-6647
Facsimile: (636) 537-2599
- and -
Philip M. Horwitz, Esq.
LAW OFFICES OF PHILIP M. HORWITZ, L.L.C.
640 Cepi Drive, Suite A
Chesterfield, MO 63005-1221
Tel: (636) 536-3644
Caremark is represented by:
Kaleb N. Berhe, Esq.
FOLEY & LARDNER LLP
555 South Flower Street, Suite 3300
Los Angeles, CA 90071
Tel: (213) 972-4572
Email: kberhe@foley.com
- and -
Robert H. Griffith, Esq.
FOLEY & LARDNER LLP
321 North Clark Street
Chicago, IL 60654
Tel: (312) 832-5174
Email: rgriffith@foley.com
- and -
Michael D. Leffel, Esq.
FOLEY & LARDNER LLP
150 East Gilman Street
Madison, WI 53703
Tel: (608) 258-4216
Email: mleffel@foley.com
- and -
Aaron R. Wegrzyn, Esq.
FOLEY & LARDNER LLP
777 East Wisconsin Avenue
Milwaukee, WI 53202
Tel: (414) 297-5156
Email: awegrzyn@foley.com
CITY NATIONAL BANK: Bid to Dismiss Noe Suit Over NSF Fee Denied
---------------------------------------------------------------
In the case, BRENDA C. NOE, on behalf of herself and all others
similarly situated, Plaintiff, v. CITY NATIONAL BANK OF WEST
VIRGINIA, Defendant, Civil Action No. 3:19-0690 (S.D. W.Va.), Judge
Robert C. Chambers of the U.S. District Court for the Southern
District of West Virginia, Huntington Division, denied the
Defendant's Motion to Dismiss, Motion to Stay, and to Strike Class
Action Allegations.
The putative class action arises out of the Defendant's routine
practice of assessing more than one non-sufficient funds ("NSF")
fee for a single attempted transaction. Distinct from an overdraft
fee, an NSF fee is assessed where a bank rejects an attempted
transaction because of the insufficient balance of a customer's
checking account. The particular practice challenged in the case
is not the assessment of NSF fees as a whole, but rather the
practice of charging multiple NSF fees for one attempted purchase.
The issue stems from certain retailers' policies of re-submitting
transactions to the Defendant for approval -- without a customer's
knowledge -- after it has already been rejected for a single
purchase.
The Plaintiff -- a resident of Glenwood, West Virginia -- has held
two accounts at City National. The first account was opened in
2012, and is the account that is directly relevant to the instant
case. In opening the account, the Plaintiff assented to a sixpage
account agreement. Near the end of the agreement is an arbitration
clause.
The agreement governed the Plaintiff's account for the next several
years without alteration. In December 2017, however, the Defendant
mailed the Plaintiff a "Notice of Change" meant to update the
"Terms and Conditions to address the Military Lending Act
revision," as well as "to make several other revisions." The
Plaintiff continued to use her account, signaling her assent to the
updated terms. Significantly, however, the updated Terms and
Conditions omitted any mention of arbitration.
In any event, the Plaintiff's continued use of her account gave
rise to two transactions that form the basis of the suit. In July
2018, the Plaintiff attempted to purchase $52.10 worth of items at
Cashland. The Defendant rejected the payment due to insufficient
funds, and charged the Plaintiff a $36 NSF fee for doing so. Weeks
later, Cashland apparently re-submitted the transaction to
Defendant without the Plaintiff's knowledge. The Defendant again
rejected the payment, and assessed another $36 NSF fee.
The pattern repeated itself once again two weeks later, with
another attempted transaction submitted by Cashland and another fee
assessed by the Defendant. In total, the Plaintiff was charged
$108 in NSF fees for a single attempted purchase of $52.10. The
pattern persisted in May 2019 after the Plaintiff attempted a
payment to Wal-Mart for $25.13. Pursuant to its NSF fee policy,
City National charged the Plaintiff a $36 fee that same day. Yet
over the course of the following weeks, Wal-Mart resubmitted the
charge to the Defendant four more times. These five attempted
payments each resulted in $36 NSF fee assessments, resulting in a
total charge of $180 for an attempted transaction of $25.13.
Frustrated by these charges, the Plaintiff initiated the instant
action in the Court on Sept. 20, 2019. The Plaintiff brings her
claims on behalf of herself and all similarly-situated customers,
and argues that the Defendant's NSF fee practices breach
contractual promises or result in unjust enrichment in the
alternative. She also alleges several violations of the West
Virginia Consumer Credit and Protection Act.
The Defendant filed the pending motion on Nov. 22, 2019, arguing
for dismissal on several different grounds. It raises seven
arguments in favor of dismissing various parts -- or in some cases,
all -- of the Amended Complaint.
The Defendant's first argument -- and the one that has attracted
the most attention in the parties' briefs -- is that the
arbitration clause in the Plaintiff's 2012 Deposit Account
Agreement and Disclosure bars her from pursuing relief in the
Court.
As the Court is required to draw all reasonable inferences in the
Plaintiff's favor at this stage of litigation, it seems clear to
Judge Chambers that the Terms and Conditions appended to the Notice
of Change could have governed the Plaintiff's account at the time
of the challenged transaction. Given the lack of any arbitration
agreement in these terms, he cannot conclude that a valid
arbitration clause exists that would preclude this litigation.
Though the Defendant is free to produce evidence at some future
stage of the action tending to demonstrate that the Terms and
Conditions supplied to the Plaintiff in 2017 did not replace the
2012 Deposit Account Agreement and Disclosure, it is not a question
fit for resolution on a motion to dismiss.
The Defendant's next argument is that the Plaintiff's claims are
time-barred by the Electronic Funds Transfer Act ("EFTA"). Judge
Chambers holds that the question before the Court is whether the
contested NSF fees represent an "error" in the Plaintiff's billing
statements subject to the EFTA's 60-day time bar. Neither the text
of the EFTA nor precedent is particularly clear on this point, but
the Defendant's argument fails for an even more immediate reason:
that the very heart of its argument is that the contested NSF fees
were not errors, but rather contractually-mandated fees assessed on
independent transactions. The Judge struggles to conceive of a
scenario in which a fee could be justified by a contract and
assessed as a regular business practice, yet still be considered an
"error" within any reasonable definition of the word. The
Defendant can have its cake or choose to eat it, but it cannot do
both. The Plaintiff's claims are not time-barred under the EFTA,
and so dismissal is not warranted.
The Defendant's third argument is that it possessed a contractual
right to assess the NSF fees at issue, and that the Plaintiff has
therefore failed to state a claim upon which relief can be granted.
At this stage of litigation, Judge Chambers cannot conclude as a
matter of law that the terms of the 2012 Deposit Account Agreement
and Disclosure applied at the time the contested fees were
assessed. As the Defendant has offered no argument with regard to
the Terms and Conditions mailed to the Plaintiff in 2017, it is
unclear whether the Defendant had the contractual right to assess
more than one NSF fee for a single attempted purchase. As such,
the Judge cannot dismiss the case on these grounds.
The Defendant next argues that federal law preempts any state law
claims challenging fees imposed by national banks are expressly
preempted by federal law. The Plaintiff has raised claims in three
counts -- (Count One) a claim for breach of contract and breach of
the covenant of good faith and fair dealing; (Count Two) a claim
for unjust enrichment; and (Count Three) claims for unfair and
deceptive acts or practices within the meaning of the West Virginia
Consumer Credit and Protection Act-- that are precisely the sort of
claims that are not preempted by federal law. To the extent the
Defendant cites other cases to support dismissal, the common thread
running through each opinion is the existence of an undisputed,
operative contract binding the Plaintiff to pay NSF fees and the
attendant absence of any nonpreempted claim. The Court is
therefore precluded from dismissing the Plaintiff's claims on
preemption grounds.
The Defendant's fifth argument is that the Plaintiff cannot state a
claim for breach of contract, breach of the implied covenant of
good faith and fair dealing, or unjust enrichment. Judge Chambers
finds that the Plaintiff has not raised a separate claim for breach
of the covenant of good faith and fair dealing; and has stated a
claim for unjust enrichment in the alternative to her claims in
Count One. Hence, dismissal is not appropriate.
The Defendant also argues that the Plaintiff has not stated a claim
under the West Virginia Consumer Credit and Collection Act
("WVCCCA"). Like the Defendant's argument with respect to the
Plaintiff's common law claims, this is incorrect. The WVCCCA is an
expansive piece of consumer protection legislation whose purpose is
to complement the body of federal law governing unfair competition
and unfair, deceptive and fraudulent acts or practices in order to
protect the public and foster fair and honest competition. For the
purposes of a motion to dismiss, then, the Plaintiff has
sufficiently alleged that the Defendant's conduct constitutes an
unlawful practice under the WVCCCA.
The Defendant's final argument is that the Plaintiff's class
allegations must be stricken because no cause of action states a
claim for class relief and the arbitration clause of the 2012
Deposit Account Agreement and Disclosure bars class actions. Judge
Chambers holds that the Defendant's argument fails for an even
clearer reason: it is unquestionably premature. This is precisely
why Rule 23(c)(1) of the Federal Rules of Civil Procedure was
amended: to require courts to determine whether to certify a
lawsuit as a class action at an early practicable time rather than
at the pleading stage.
In sum, the Defendant advances no argument that can justify a stay
of the action -- let its alone dismissal, rules the Court.
Striking the Plaintiff's class allegations is likewise premature.
Discovery in the case will no doubt solicit evidence tending to
demonstrate whether the Terms and Conditions attached to the Notice
of Change governed the Plaintiff's account at the time of the
contested transactions, as well as whether the Plaintiff can
establish the numerosity, commonality, typicality, and adequacy of
representation necessary to certify a class. For the limited
purposes of a motion to dismiss, however, the Plaintiff's claims
will proceed.
For the foregoing reasons, Judge Chambers denied the Defendant's
motion. He directed the Clerk to send a copy of his Memorandum
Opinion and Order to the counsel of record and any unrepresented
parties.
A full-text copy of the Court's Feb. 19, 2020 Memorandum Opinion &
Order is available at https://is.gd/idANJS from Leagle.com.
Brenda C. Noe, on behalf of herself and all others similarly
situated, Plaintiff, represented by George Franklin Lemond, Jr.,
WEBB KLASE & LEMOND, pro hac vice, James G. Bordas, III --
jbordasiii@bordaslaw.com -- BORDAS & BORDAS, Jason E. Causey --
jcausey@bordaslaw.com -- BORDAS & BORDAS & Tiffany M. Yiatras,
CONSUMER PROTECTION LEGAL, pro hac vice.
City National Bank of West Virginia, Defendant, represented by
Ancil G. Ramey -- ancil.ramey@steptoe-johnson.com -- STEPTOE &
JOHNSON.
CREDIT CONTROL: Court Denies Bid to Dismiss Cartmell FDCPA Suit
---------------------------------------------------------------
In the case, WILLIAM CARTMELL, Plaintiff, v. CREDIT CONTROL, LLC,
Defendant, Case No. 5:19-cv-1626 (E.D. Pa.), Judge Joseph F.
Leeson, Jr. of the U.S. District Court for the Eastern District of
Pennsylvania denied Credit Control's motion to dismiss.
The action is brought under the Fair Debt Collection Practices Act
("FDCPA"), in which Plaintiff Cartmell contends that Defendant
Credit Control's attempt to collect a debt violated several
provisions of that statute. As with many FDCPA cases, the case
rests on the content of Credit Control's collection letter, which
offered Cartmell three "payment options" for repayment of the debt.
Prior to April 23, 2018, Cartmell incurred a credit card debt to
Credit One Bank, which was subsequently sold or transferred to LVNV
Funding, LLC. On April 23, 2018, Credit Control, a debt collector,
caused to be delivered to Cartmell a collection letter in an
attempt to collect on the debt. As of April 23, 2018, more than
six years had elapsed since the last payment or activity on the
LVNH Funding debt. At the heart of the dispute in the case -- the
Letter failed to inform Cartmell that should he choose one of the
payment options and make a payment, such action might revive the
statute of limitations for debt-collection purposes, which could
expose him to future liability on the debt.
Based on this omission, Cartmell asserts causes of action for
violations of (1) 15 U.S.C. Section 202f1692e, which prohibits the
use of false, deceptive, or misleading representations or means in
connection with the collection of any debt, as well as (2) 15
U.S.C. Section 1692f, which prohibits the use of any unfair or
unconscionable means to collect any debt.
The initial Complaint in the action was filed on April 15, 2019.
The counsel appeared before the Court for a Rule 16 initial
conference on Aug. 6, 2019, at which time a discovery schedule was
put in place. On Aug. 13, 2019, the parties filed a stipulation
allowing Cartmell to file an Amended Complaint, which was accepted
for filing and remains the operative pleading in the case.
There are currently four motions pending before the Court, each
with opposition: (i) Credit Control's motion to dismiss the Amended
Complaint for lack of subject matter jurisdiction based on
Cartmell's failure to establish standing, (ii) Cartmell's motion
for class certification, and (iii) both parties' cross-motions for
summary judgment.
Because protecting against the harm resulting from deceptive or
misleading communications was a primary goal of the FDCPA, Judge
Leeson finds that a violation of Section 1692e's prohibition on
false, deceptive, or misleading communications deprives a debtor of
his or her substantive right to truthful information. A debtor who
receives a deceptive or misleading communication accordingly need
not establish any 'additional harm' to surpass the standing
threshold of concrete injury. Cartmell's receipt of Credit
Control's collection letter subjected Cartmell to a de facto
concrete injury -- the deprivation of his substantive right to
truthful information.
The final issue that must be (briefly) addressed is the affirmative
evidence Credit Control puts forwards: Cartmell's testimony that he
understood the debt was beyond the statute of limitations, and that
he never intended to pay it. Put simply, it is of no moment that
Cartmell did not intend to pay the debt. Congress conferred upon
him a substantive right to receive truthful, non-deceptive
information, which Credit Control violated when it sent, and
Cartmell received, the Letter in the case. Cartmell's receipt of
the letter was itself the informational harm the FDCPA was enacted
to prevent.
For the foregoing reasons, Judge Leeson concludes that Cartmell has
alleged facts sufficient to establish his standing to sue, and
Credit Control's motion to dismiss is denied. Considering this
determination, and in light of the three remaining motions in the
case, the Judge will be scheduling the matter for a telephone
conference to discuss with the counsel how the case should proceed.
A full-text copy of the Court's Jan. 10, 2020 Opinion is available
at https://is.gd/hK7Ov5 from Leagle.com.
WILLIAM CARTMELL, Plaintiff, represented by ARI H. MARCUS --
Ari@MarcusZelman.com -- MARCUS & ZELMAN LLC & YITZCHAK ZELMAN --
info@marcuszelman.com -- MARCUS ZELMAN LLC, pro hac vice.
CREDIT CONTROL, LLC, Defendant, represented by M. BRENT YARBOROUGH
-- byarborough@MauriceWutscher.com -- MAURICE WUTSCHER LLP, pro hac
vice, SHANNON P. MILLER -- smiller@MauriceWutscher.com -- Maurice
Wutscher LLP & THOMAS R. DOMINCZYK --
tdominczyk@MauriceWutscher.com -- MAURICE WUTSCHER, LLP.
DAWN FOOD: Howell et al Sue over Collection of Biometric Data
-------------------------------------------------------------
ALRIC HOWELL and TELLY WILSON, individually and on behalf of all
others similarly situated, Plaintiffs v. DAWN FOOD PRODUCTS, INC.,
Defendant, Case No. 2020CH02635 (Ill. Cir., Cook Cty., March 3,
2020) is a class action complaint brought against Defendant for its
alleged violation of the Biometric Information Privacy Act.
According to the complaint, Defendant's employees, including
Plaintiffs, were required to scan their fingerprint in Defendant's
biometric time tracking system as a means of authentication which
possibly exposes employees to serious and irreversible privacy
risks, such as identity theft and unauthorized tracking, if a
fingerprint database is hacked and breached.
The complaint asserts that Defendant disregarded its employees'
statutorily protected privacy rights by failing to inform them of
the complete purposes of collecting their fingerprints; and to
provide them with a written, publicly available retention schedule
or guidelines for permanently destroying biometric identifiers and
biometric information when the initial purpose is no longer
relevant.
Plaintiffs seek liquidated damages under BIPA as compensation for
the injuries caused by Defendant.
Dawn Food Products, Inc. manufactures, wholesales, and distributes
bakery products. [BN]
The Plaintiffs are represented by:
David Fish, Esq.
Mara Baltabols, Esq.
John Kunze, Esq.
THE FISH LAW FIRM, P.C.
200 East Fifth Ave., Ste. 123
Naperville, IL 60563
Tel: 630-355-7590
Fax: 630-778-0400
Emails: dfish@fishlawfirm.com
mara@fishlawfirm.com
kunze@fishlawfirm.com
DELAWARE: District Court Dismisses Abdul-Akbar Civil Rights Suit
----------------------------------------------------------------
Judge Leonard P. Stark of the U.S. District Court for the District
of Delaware dismissed the case captioned DEBRO SIDDIQ ABDUL-AKBAR,
Plaintiff, v. STATE OF DELAWARE, et al., Defendants, Civ. No.
19-961-LPS (D. Del.).
Plaintiff Abdul-Akbar filed the action on May 24, 2019. He
requests that the matter proceed as a class action. He appears pro
se and has been granted leave to proceed in forma pauperis.
The Plaintiff claims jurisdiction based upon the United States
Government as a Defendant and a federal question. He lives in the
City of Wilmington, Delaware. He alleges that State Defendants are
responsible for the educational, correctional, and social services,
as well as provision of resources to the community. He alleges
that he lives in a mentally debilitating community where poverty
has created community trauma, adding that the State of Delaware has
repeatedly stated in studies that educational, correctional, and
social services systems have failed the people.
The Complaint alleges that government officials continue to invest
monies in and around poverty-stricken areas but the investments
fail to create jobs for local residents and contractors who would
hire local residents; it adds that the government has not found a
way to create jobs for those suffering community trauma and
generational poverty. The Complaint alleges that the State and
City own blighted houses and properties in the community, that the
properties contribute to poverty and community trauma, and that the
properties must be developed in order to treat poverty.
The Plaintiff alleges that the CDC and others have declared the
City of Wilmington as suffering from community trauma yet the
Defendants have failed to put forth a meaningful and effective
treatment plan or carried out the recommendations of the CDC. He
alleges that those who suffer from mental illness are arrested and
detained without treatment, punished by the courts, not
rehabilitated while incarcerated, and are then released without
treatment and no means of survival, which often leads to a criminal
life style. He alleges that because of this he lives in a constant
and immediate threat to his life and safety.
The Plaintiff alleges deliberate indifference to the welfare of
people by the City, State, and Federal government because
investments in buildings and companies did not create jobs, reduce
generational poverty, or address community trauma and mental
illness. The Complaint alleges these actions or inactions have
failed the Black community and caused community trauma to the lives
of hundreds to thousands of Black youth.
The Plaintiff seeks monetary damages as well as injunctive relief.
He requests the counsel and has filed a motion for change of
venue.
While the Court is mindful that the Plaintiff proceeds pro se and
is afforded a liberal construction of his pleading, he must allege
a deprivation of a right secured by the Constitution or the laws of
the United States in order to bring a claim in federal court.
Judge Stark can discern no such claim. Moreover, Defendants State
of Delaware and the Delaware Department of Justice are immune from
suit.
In addition, the Complaint fails to allege personal involvement by
individual Defendants. An individual government Defendant in a
civil rights action must have personal involvement in the alleged
wrongdoing; liability cannot be predicated solely on the operation
of respondeat superior. Personal involvement can be shown through
allegations of personal direction or of actual knowledge and
acquiescence. Under the liberal notice pleading standard of
Federal Rule of Civil Procedure 8(a), the Plaintiff's Complaint
fails to allege facts that, if proven, would show personal
involvement by Defendants John Carney and Wilmington Mayor Michael
S. Purzycki.
Finally, the allegations are conclusory and do not state a facially
plausible claim for relief. Accordingly, the Judge will dismiss
the Complaint pursuant to 28 U.S.C. Section 1915(e)(2)(B)(i) and
(iii). He finds amendment futile.
For these reasons, Judge Stark: (1) denied as moot the Plaintiff's
request for counsel and motion for change of venue; and (2)
dismissed the Complaint as legally frivolous and based upon
immunity from suit pursuant to 28 U.S.C. Section 1915(e)(2)(B)(i)
and (iii). He finds amendment futile. An appropriate Order
follows.
A full-text copy of the Court's Feb. 19, 2020 Memorandum Opinion is
available at https://is.gd/f4ksqW from Leagle.com.
Debro Siddiq Abdul-Akbar, Plaintiff, pro se.
DEUTSCHE BANK: Settlement in Securities Suit Gets Initial Approval
------------------------------------------------------------------
Judge Gregory H. Woods of the U.S. District Court for the Southern
District of New York preliminarily approved the Class Action
Settlement in In re DEUTSCHE BANK AG SECURITIES LITIGATION. This
Document Relates To: ALL ACTIONS, Case No. 1:09-cv-01714-GHW-RWL
(S.D. N.Y.).
On Nov. 11, 2019, the parties entered to the Litigation entered
into the Stipulation of Settlement which sets forth the terms and
conditions for the proposed settlement of the claims alleged in the
complaint on the merits and with prejudice.
A Settlement Hearing is set for June 11, 2020, at 4:30 p.m. ET,
which is a date at least 100 calendar days from the date of the
Order.
The Judge approved the form, substance and requirements of: the
Notice of Pendency and Proposed Settlement of Class Action; the
Proof of Claim and Release form; and the Summary Notice.
He appointed Gilardi & Co. LLC as the Claims Administrator. Within
14 calendar days of the entry of the Order, the Claims
Administrator will cause the Notice and the Proof of Claim to all
Class Members who can be identified with reasonable effort, and to
be posted on its website at
www.DeutscheBankSecuritiesSettlement.com.
The Claims Administrator will use reasonable efforts to give notice
to nominee purchasers such as brokerage firms and other persons or
entities who purchased or otherwise acquired securities in the
Class Offerings as record owners but not as beneficial owners.
Such nominee purchasers are directed, within seven business days of
their receipt of the Notice, to either forward copies of the Notice
and Proof of Claim to their beneficial owners or to provide the
Claims Administrator with lists of the names and addresses of the
beneficial owners, and the Claims Administrator is ordered to send
the Notice and Proof of Claim promptly to such identified
beneficial owners.
The Lead Counsel will, at least seven calendar days prior to the
Settlement Hearing, file with the Court proof of mailing of the
Notice and Proof of Claim.
All fees, costs, and expenses incurred in identifying and notifying
Members of the Class will be paid from the Settlement Fund and in
no event will any of the Released Persons bear any responsibility
for such fees, costs, or expenses.
The Escrow Agent or its agents are authorized and directed to
prepare any tax returns required to be filed on behalf of or in
respect of the Settlement Fund, to cause any Taxes due and owing to
be paid from the Settlement Fund, and to otherwise perform all
obligations with respect to Taxes and any reporting or filings in
respect thereof as contemplated by the Stipulation without further
order of the Court.
The Lead Counsel will submit their papers in support of final
approval of the Settlement and application for an award of
attorneys' fees and expenses, by no later than May 7, 2020 (a date
35 calendar days prior to the Settlement Hearing). All reply
papers in support of such motions will be filed and served by no
later than June 4, 2020 (a date seven calendar days prior to the
Settlement Hearing).
The Claims Administrator will cause the Summary Notice to be
published once in the national edition of The Wall Street Journal
and once over Business Wire within seven calendar days of the
Notice Date. The Lead Counsel will, at least seven calendar days
prior to the Settlement Hearing, file with the Court proof of the
publication of the Summary Notice.
The Class Members who wish to participate in the Settlement will
complete and submit Proofs of Claim in accordance with the
instructions contained therein. Unless the Court orders otherwise,
all Proofs of Claim must be postmarked or submitted electronically
no later than 90 calendar days from the Notice Date. Any Class
Member who does not timely submit a Proof of Claim within the time
provided for, will be barred from sharing in the distribution of
the proceeds of the Settlement Fund, unless otherwise ordered by
the Court. Notwithstanding the foregoing, Lead Counsel may, in
their discretion, accept late-submitted claims for processing by
the Claims Administrator so long as distribution of the Net
Settlement Fund to Authorized Claimants is not materially delayed
thereby.
A putative Class Member wishing to make such request will mail the
request to the Claims Administrator no later than May 21, 2020 (a
date 21 calendar days prior to the Settlement Hearing), to the
address designated in the Notice.
The Lead Counsel will cause to be provided to Deutsche Bank's
counsel copies of all requests for exclusion, and any written
revocation of requests for exclusion, within the sooner of three
days of the Lead Counsel's receipt or seven days prior to the
Settlement Hearing.
Objections to the Settlement, the Plan of Allocation, the
application by or on behalf of Lead Counsel for an award of
attorneys' fees and expenses, or any application by the Class
Plaintiffs for an amount pursuant to 15 U.S.C. Section77z-1(a)(4)
in connection with their representation of the Class in the
Litigation, and any supporting papers will be filed with the Court
on May 21, 2020 (a date 21 calendar days prior to the Settlement
Hearing).
Any Class Member may enter an appearance in the Litigation, at
their own expense, individually or through counsel of his/her/its
own choice. If he/she/it does not enter an appearance, he/she/it
will be represented by the Lead Counsel.
All funds held by the Escrow Agent will remain subject to the
jurisdiction of the Court until such time as such funds will be
distributed pursuant to the Order, the Plan of Allocation and/or
further orders of the Court.
As provided in the Stipulation, the Escrow Agent may pay the Claims
Administrator out of the Settlement Fund the reasonable fees and
costs associated with giving notice to the Class, the review of
claims and the administration of the Settlement without further
order of the Court. In the event the Settlement is not approved by
the Court, or otherwise fails to become effective, neither the
Class Plaintiffs nor the Lead Counsel will have any obligation to
repay to Defendants the reasonable and actual costs of class notice
and administration.
A full-text copy of the Court's Feb. 26, 2020 Order is available at
https://is.gd/0u9dVm from Leagle.com.
Norbert G. Kaess, Plaintiff, represented by Brian Philip Murray
-- bmurray@glancylaw.com -- Glancy Prongay & Murray LLP, Eva
Hromadkova, Frank LLP, Kevin S. Sciarani -- ksciarani@rgrdlaw.com
-- Robbins Geller Rudman & Dowd LLP, Lee Albert --
lalbert@glancylaw.com -- Glancy Prongay & Murray LLP, pro hac
vice, Samuel Howard Rudman -- srudman@rgrdlaw.com -- Robbins
Geller Rudman & Dowd LLP, Andrew J. Brown -- andrewb@rgrdlaw.com -
- Robbins Geller Rudman & Dowd LLP, pro hac vice, Deborah R.
Gross, Law Offices Bernard M Gross, P.C., pro hac vice, Lucas F.
Olts -- lolts@rgrdlaw.com -- Robbins Geller Rudman & Dowd LLP,
Mario Alba, Jr. -- malba@rgrdlaw.com -- Robbins Geller Rudman &
Dowd LLP & Eric I. Niehaus -- ericn@rgrdlaw.com -- Robbins Geller
Rudman & Dowd LLP.
Belmont Holdings Corp., Lead Plaintiff, represented by Kevin S.
Sciarani, Robbins Geller Rudman & Dowd LLP, Lee Albert, Glancy
Prongay & Murray LLP, pro hac vice, Samuel Howard Rudman, Robbins
Geller Rudman & Dowd LLP, Andrew J. Brown, Robbins Geller Rudman &
Dowd LLP, pro hac vice,Christopher D. Stewart --
cstewart@rgrdlaw.com -- Robbins Geller Rudman & Dowd LLP, pro hac
vice, David Avi Rosenfeld -- drosenfeld@rgrdlaw.com -- Robbins
Geller Rudman & Dowd LLP, Deborah R. Gross, Law Offices Bernard M
Gross, P.C., pro hac vice, Lucas F. Olts, Robbins Geller Rudman &
Dowd LLP, Mario Alba, Jr., Robbins Geller Rudman & Dowd LLP & Eric
I. Niehaus, Robbins Geller Rudman & Dowd LLP.
Maria Farruggio, Plaintiff, represented by Brian Philip Murray,
Glancy Prongay & Murray LLP, Eva Hromadkova, Frank LLP, Kevin S.
Sciarani, Robbins Geller Rudman & Dowd LLP, Samuel Howard Rudman,
Robbins Geller Rudman & Dowd LLP, Andrew J. Brown, Robbins Geller
Rudman & Dowd LLP, pro hac vice, Deborah R. Gross, Law Offices
Bernard M Gross, P.C., pro hac vice, Lucas F. Olts, Robbins Geller
Rudman & Dowd LLP, Mario Alba, Jr., Robbins Geller Rudman & Dowd
LLP & Eric I. Niehaus, Robbins Geller Rudman & Dowd LLP.
Edward P. Zemprelli, Plaintiff, represented by Andrew J. Brown,
Robbins Geller Rudman & Dowd LLP, pro hac vice, David Avi
Rosenfeld, Robbins Geller Rudman & Dowd LLP, Deborah R. Gross, Law
Offices Bernard M Gross, P.C., pro hac vice, Eric I. Niehaus,
Robbins Geller Rudman & Dowd LLP, pro hac vice, Lucas F. Olts,
Robbins Geller Rudman & Dowd LLP, Christopher D. Stewart, Robbins
Geller Rudman & Dowd LLP, pro hac vice, Darren J. Robbins --
darrenr@rgrdlaw.com -- Robbins Geller Rudman & Dowd LLP, pro hac
vice, Mario Alba, Jr., Robbins Geller Rudman & Dowd LLP, Matthew
Montgomery, Robbins Geller Rudman & Dowd LLP & Samuel Howard
Rudman, Robbins Geller Rudman & Dowd LLP.
Plumbers' Union Local No. 12 Pension Fund, Plaintiff, represented
by Eric I. Niehaus, Robbins Geller Rudman & Dowd LLP.
Shirley Bachrach, Plaintiff, represented by Darren J. Robbins,
Robbins Geller Rudman & Dowd LLP, pro hac vice, David Avi
Rosenfeld, Robbins Geller Rudman & Dowd LLP, Mario Alba, Jr.,
Robbins Geller Rudman & Dowd LLP, Matthew Montgomery, Robbins
Geller Rudman & Dowd LLP, Samuel Howard Rudman, Robbins Geller
Rudman & Dowd LLP, Christopher D. Stewart, Robbins Geller Rudman &
Dowd LLP, pro hac vice & Deborah R. Gross, Law Offices Bernard M
Gross, P.C., pro hac vice.
George Gerson, Plaintiff, represented by David Avi Rosenfeld,
Robbins Geller Rudman & Dowd LLP, Mario Alba, Jr., Robbins Geller
Rudman & Dowd LLP,Christopher D. Stewart, Robbins Geller Rudman &
Dowd LLP, pro hac vice &Deborah R. Gross, Law Offices Bernard M
Gross, P.C., pro hac vice.
Ridge Oak Management, Inc, Plaintiff, represented by Harry J.
Weiss.
Deutsche Bank AG, Deutsche Bank Capital Funding Trust VIII,
Deutsche Bank Capital Funding LLC VIII, Deutsche Bank Capital
Funding Trust X, Deutsche Bank Capital Funding LLC X, Josef
Ackermann, Anthony Di Iorio, Banziger Hugo, Tessen Von Heydebreck,
Hermann-Josef Lamberti, Martin Edelmann, Peter Sturzinger, Detlef
Bindert, Jonathan Blake, Marco Zimmermann, Deutsche Bank
Securities Inc., Deutsche Bank Capital Funding Trust IX, Deutsche
BankD Capital Funding LLC IX, Rainer Rauleder, Deutsche Bank
Contingent Capital Trust III, Deutsche Bank Contingent Capital LLC
III, Deutsche Bank Contingent Capital Trust II, Deutsche Bank
Contingent Capital LLC II, represented by Charles Alan Gilman --
cgilman@cahill.com -- Cahill Gordon & Reindel LLP & David George
Januszewski -- djanuszewski@cahill.com -- Cahill Gordon & Reindel
LLP.
UBS Securities LLC, Citigroup Global Markets, Inc., Merrill Lynch,
Pierce, Fenner & Smith Incorporated, Wachovia Capital Markets,
LLC, Morgan Stanley & Co. Incorporated, Banc of America Securities
LLC, Defendants, represented by Jay B. Kasner --
jay.kasner@skadden.com -- Skadden, Arps, Slate, Meagher & Flom LLP
& Scott D. Musoff -- scott.musoff@skadden.com -- Skadden, Arps,
Slate, Meagher & Flom LLP.
Deutsche Bank Contingent Captial Trust III, Deutsche Bank
Contingent Captial Trust V, Deutsche Bank Contingent Captial LLC
V, Defendant, represented by Charles Alan Gilman, Cahill Gordon &
Reindel LLP.
DEVA CONCEPTS: Sells Fraudulent No-Poo Cosmetic, Calabrese Alleges
------------------------------------------------------------------
TONIA A. CALABRESE, individually and on behalf of others similarly
situated, Plaintiff v. DEVA CONCEPTS, LLC, d/b/a DEVACURL,
Defendant, Case No. 4:20-cv-00042 (E.D.N.C., March 3, 2020) is a
civil class action complaint brought against Defendants for its
alleged deceptive marketing, advertising, sale and distribution of
DevaCurl's No-Poo Products throughout the U.S.
According to the complaint, Defendant markets the No-Poo Product as
a "first-of-its-kind, no-suds conditioning cleanser" that is "free
of sulfates, parabens, and silicones", that is used to "gently
cleanse curls without stripping the natural oils they need to look
healthy, bouncy and simply gorgeous", and "allows your scalp to
regulate, and your hair to become more what nature intended",
thereby convincing consumers to purchase and use the product over a
traditional shampoo.
However, thousands of consumers, including Plaintiff, have reported
their hair failing out shortly after or during actual use of the
product such scalp irritation, excessive shedding, hair loss,
thinning, relaxing of curl, breakage, and/or balding.
The case asserts that Defendant failed to provide warning and
disclose the defective nature of its products.
The complaint alleges Breach of Express Warranty, Breach of Implied
Warranty of Merchantability, violation of Magnuson-Moss Warranty
Act, unjust enrichment, negligence for failure to warn the
consumers, negligence for failure to test the products before
marketing, and violation of the North Carolina Unfair and Deceptive
Trade Practices Act.
The North Carolina Unfair and Deceptive Trade Practices Act
prohibits the use of unfair methods of competition, unconscionable
acts or practices, and unfair or deceptive acts or practices in the
conduct of any trade or commerce.
Deva Concepts, LLC formulates, manufactures, advertises, and sells
DevaCurl's No-Poo Products, a personal cosmetics, throughout the
U.S., including in the State of North Carolina. [BN]
The Plaintiff is represented by:
Joel R. Rhine, Esq.
Martin A. Ramey, Esq.
Dara A. Damery, Esq.
RHINE LAW FIRM, P.C.
1612 Military Cutoff, Suite 300
Wilmington, NC 28403
Tel: (910)772-9960
DIRECTV LLC: 11th Cir. Flips Denial of Arbitration Bid in Cordoba
-----------------------------------------------------------------
The U.S. Court of Appeals for the Eleventh Circuit reversed the
district court's order denying DIRECTV's motion to compel
arbitration in the case, SEBASTIAN CORDOBA, et al.,
Plaintiffs-Appellees, v. DIRECTV, LLC, Defendant-Appellant, Case
No. 18-14832 (11th Cir.)
In 2015, Plaintiff Cordoba filed a putative class action against
DIRECTV, alleging violations of the Telephone Consumer Protection
Act ("TCPA"). During the course of that underlying litigation and
in preparing its defense, DIRECTV allegedly shared its customers'
personal information with its expert witness, Debra Aron.
Specifically, DIRECTV is alleged to have created a data file
containing, among others, certain customers' accounts numbers,
first and last names, account creation dates, and home and business
telephone numbers. Plaintiff Rene Romero alleges that such
disclosure was nonconsensual, and therefore, in violation of the
Satellite Television Extension and Localism Act of 2010 ("STELA").
On May 30, 2018, the district court granted Cordoba's motion for
leave to file a Third Amended Complaint, which added Romero as an
additional Plaintiff and a class representative for the STELA
claim. DIRECTV responded by moving to compel arbitration under the
arbitration provision in Romero's 2016 Customer Agreement -- or, in
the alternative, under the 2014 or 2015 versions of the Customer
Agreement.
The district court denied DIRECTV's motion. It found that while
Romero accepted the arbitration clause in the 2016 Customer
Agreement, the arbitration provision therein did not encompass
Romero's STELA claims. The Federal Arbitration Act requires that
the controversy arise out of the contract between the parties" and
that DIRECTV had not established that Romero's claim arises from
the 2016 Agreement. Therefore, the court held, Romero's STELA
claim is not covered by the Agreement's arbitration provision.
The appeal followed.
Without addressing the more general question of whether the
relevant arbitration provision is in fact enforceable as to "all
claims and disputes" as DIRECTV contends, the Eleventh Circuit
finds -- based on the limited facts of the matter -- that Romero's
STELA claim indeed falls within its purview.
The arbitration provision expressly governs claims arising out of
or relating to any aspect of the relationship between the parties.
Romero's STELA claim is a direct derivative of his "relationship"
with DIRECTV. Romero alleges that DIRECTV violated Section
338(i)(4) of STELA, which prohibits a "satellite carrier" from the
nonconsensual disclosure of "personally identifiable information
concerning any subscriber." Romero is a paying subscriber of
DIRECTV. That is the entirety of the relationship between the two.
If not for Romero's subscriber relationship with DIRECTV, the
factual allegations underlying his claim would be non-existent --
DIRECTV would not have his information to share.
The subscriber relationship both predicates Romero's STELA claim
and delineates the "relationship" referenced and governed by the
Customer Agreement's arbitration provision. Accordingly, Romero's
STELA claim necessarily arises out of his relationship with DIRECTV
as contemplated by the arbitration clause. Simply put, without the
subscriber relationship, Romero has no STELA claim. Therefore,
because of that relationship, such STELA claim is subject to
arbitration, rules the Eleventh Circuit.
Because Romero's STELA claim is governed by the Customer
Agreement's arbitration provision, the district court erred in
denying DIRECTV's motion to compel arbitration, the Eleventh
Circuit held. Accordingly, the district court ruling is reversed
and remanded.
A full-text copy of the Eleventh Circuit's Feb. 19, 2020 Order is
available at https://is.gd/km3qLv from Leagle.com.
L. Lin Wood -- lwood@linwoodlaw.com -- for Plaintiff-Appellee.
Archis Ashok Parasharami, for Defendant-Appellant.
Evan Mark Tager, for Defendant-Appellant.
Jonathan D. Selbin -- jselbin@lchb.com -- for Plaintiff-Appellee.
John P. Jett -- jjett@kilpatricktownsend.com -- for
Defendant-Appellant.
Andrew John Pincus -- apincus@mayerbrown.com -- for
Defendant-Appellant.
Matthew M. Wilkins -- mwilkins@kingyaklin.com -- for
Plaintiff-Appellee.
Michael Joseph Boyle, Jr. -- mboyle@meyerwilson.com -- for
Plaintiff-Appellee.
Matthew R. Wilson -- mwilson@meyerwilson.com -- for
Plaintiff-Appellee.
Jonathan David Grunberg -- jgrunberg@linwoodlaw.com -- for
Plaintiff-Appellee.
G. Taylor Wilson -- twilson@linwoodlaw.com -- for
Plaintiff-Appellee.
John E. Muench -- jmuench@mayerbrown.com -- for
Defendant-Appellant.
Hans J. Germann -- hgermann@mayerbrown.com -- for
Defendant-Appellant.
Kyle J. Steinmetz -- ksteinmetz@mayerbrown.com -- for
Defendant-Appellant.
Ava J. Conger -- aconger@kilpatricktownsend.com -- for
Defendant-Appellant.
Nicole Jennings Wade -- nwade@linwoodlaw.com -- for
Plaintiff-Appellee.
Douglas I. Cuthbertson -- dcuthbertson@lchb.com -- for
Plaintiff-Appellee.
Daniel Morris Hutchinson -- dhutchinson@lchb.com -- for
Plaintiff-Appellee.
Stephen A. Yaklin -- syaklin@kingyaklin.com -- for
Plaintiff-Appellee.
EDDIE BAUER: Settlement in Veridian Suit Has Final Approval
-----------------------------------------------------------
In the case, VERIDIAN CREDIT UNION, on behalf of itself and a class
of similarly situated financial institutions, Plaintiff, v. EDDIE
BAUER LLC, Defendant, Case No. 2:17-cv-00356-JLR (W.D. Wash.),
Judge James L. Robart of the U.S. District Court for the Western
District of Washington, Seattle, granted the Plaintiff's Motion for
Final Approval of the Class Action Settlement.
On June 12, 2019, the Court entered an order granting preliminary
approval of the Settlement between Veridian, on its own behalf and
on behalf of the Settlement Class, and the Defendant, as
memorialized in Exhibit A (ECF No. 164-1) to Plaintiff's Unopposed
Motion for Preliminary Approval of Class Action Settlement.
On Sept. 20, 2019, the Plaintiff filed its Motion for Final
Approval of the Class Action Settlement and accompanying Joint
Declaration of Gary F. Lynch and Joseph P. Guglielmo, along with
supporting exhibits; and the Class Counsel filed their Motion for
an Award of Attorneys' Fees and Reimbursement of Expenses and
accompanying declarations from counsel of record in the Litigation
setting forth their time and expenses and related exhibits.
On Oct. 25, 2019, the Court held a Final Approval Hearing. Having
determined that the Settlement is fair, adequate, and reasonable;
and having considered the Fee Application, Judge Robart granted the
Plaintiff's Final Approval Motion, and the Class Counsel's Fee
Application.
The Court granted final approval of the Settlement, including, but
not limited to, the releases in the Settlement and the plans for
distribution of the Settlement relief. The Parties will effectuate
the Settlement in accordance with its terms.
A list of those putative Settlement Class Members who have timely
and validly elected to opt-out of the Settlement and Settlement
Class, in accordance with the requirements in the Settlement, has
been submitted to the Court in the Declaration of Christopher D.
Amundson, filed in advance of the Final Approval Hearing. The
persons and/or entities listed in Exhibit A are not bound by the
Settlement, the Final Approval Order and Judgment, and are not
entitled to any of the benefits under the Settlement. The Opt-Out
Members listed in Exhibit A will be deemed not to be Releasing
Parties.
For purposes of the Settlement and the Final Approval Order and
Judgment, the Court finally certified for settlement purposes only
the following Settlement Class: All banks, credit unions, financial
institutions, and other entities in the United States (including
its Territories and the District of Columbia) that issued Alerted
on Payment Cards.
The Court granted Final Approval to the appointment of (i) the
Plaintiff as the Settlement Class Representative; and (ii) pursuant
to Rule 23(g), of Joseph P. Guglielmo of Scott+Scott Attorneys at
Law LLP and Gary F. Lynch of Carlson Lynch LLP as the Class
Counsel.
The Settlement Administrator's fees, as well as all other costs and
expenses associated with Notice and Claims Administration, will
continue to be paid by Eddie Bauer as provided in the Settlement.
Pursuant to Rule 23(h), and relevant Ninth Circuit authority, the
Court awarded the Class Counsel $2 million as an award of
reasonable attorneys' fees, costs, and expenses to be paid in
accordance with the Settlement. This amount will also cover the
Costs of Settlement Administration, which was previously approved
by the Court, and the requested Service Award. The award of
attorneys' fees, costs, and expenses, and any interest earned
thereon, will be paid in accordance with the Settlement.
The Court granted the Class Counsel's request for a Service Award
and awards $10,000 to the Plaintiff. The Service Award will be
paid by Eddie Bauer in accordance with the Settlement.
The Court dismissed the Litigation and Complaint and all claims
therein on the merits and with prejudice, without fees or costs to
any party, except as provided in the Final Approval Order and
Judgment.
A full-text copy of the Court's Oct. 25, 2019 Order is available at
https://is.gd/MyTC14 from Leagle.com.
Veridian Credit Union, on behalf of itself and a class of
similarly
situated financial institutions, Plaintiff, represented by Arthur
Mahony Murray , MURRAY LAW FIRM, pro hac vice, Brian C. Gudmundson
-- brian.gudmundson@zimmreed.com -- ZIMMERMAN REED LLP, pro hac
vice, Bryan L. Bleichner -- bbleichner@chestnutcambronne.com --
CHESTNUT CAMBRONNE PA, pro hac vice, Caroline Thomas White, MURRAY
LAW FIRM, pro hac vice, Chase Christian Alvord --
calvord@tousley.com -- TOUSLEY BRAIN STEPHENS, Christopher P. Renz
-- crenz@chestnutcambronne.com -- CHESTNUT CAMBRONNE PA, pro hac
vice, Erin Green Comite --ECOMITE@SCOTT-SCOTT.COM -- SCOTT + SCOTT
LLP, pro hac vice, Gary F. Lynch --glynch@carlsonlynch.com --
CARLSON LYNCH SWEET KILPELA & CARPENTER, LLP, pro hac vice --
JGUGLIELMO@SCOTT-SCOTT.COM -- SCOTT + SCOTT, ATTORNEYS AT LAW,
LLP,
pro hac vice, Karen H. Riebel -- khriebel@locklaw.com -- LOCKRIDGE
GRINDAL NAUEN, pro hac vice, Kate M. Baxter-Kauf --
kmbaxter-kauf@locklaw.com -- LOCKRIDGE GRINDAL NAUEN, pro hac
vice,
Kevin W. Tucker -- ktucker@carlsonlynch.com -- CARLSON LYNCH SWEET
KILPELA & CARPENTER LLP, pro hac vice, Kim D. Stephens --
kstephens@tousley.com -- TOUSLEY BRAIN STEPHENS & Sean C. Russell
-- SEAN.RUSSELL@SCOTT-SCOTT.COM -- SCOTT + SCOTT LLP, pro hac
vice.
Eddie Bauer LLC, Defendant, represented by Dyanne Cho --
Dyanne.Cho@lewisbrisbois.com --LEWIS BRISBOIS BIGAARD & SMITH LLP,
pro hac vice, Gordon Calhoun -- Gordon.Calhoun@lewisbrisbois.com
--
LEWIS BRISBOIS BISGAARD & SMITH LLP, pro hac vice, Jon P.
Kardassakis -- Jon.Kardassakis@lewisbrisbois.com -- LEWIS BRISBOIS
BIGAARD & SMITH LLP, pro hac vice, Ethan A. Smith --
Ethan.Smith@lewisbrisbois.com -- LEWIS BRISBOIS BISGAARD & SMITH
LLP, Kathleen A. Nelson -- Kathleen.Nelson@lewisbrisbois.com --
LEWIS BRISBOIS BISGAARD & SMITH LLP & Sarah Demaree Macklin --
Sarah.Macklin@lewisbrisbois.com -- LEWIS BRISBOIS BISGAARD & SMITH
LLP.
ENERGY TRANSFER: Institutional Investor Group Named Lead Plaintiff
------------------------------------------------------------------
In the case, ALLEGHENY COUNTY EMPLOYEES' RETIREMENT SYSTEM,
individually and on behalf of others similarly situated,
Plaintiffs, v. ENERGY TRANSFER LP, KELCY L. WARREN, JOHN W.
McREYNOLDS, and THOMAS E. LONG, Defendants, Civil Action No. 20-200
(E.D. Pa.), Judge Gerald Austin McHugh of the U.S. District Court
for the Eastern District of Pennsylvania (i) granted the
Institutional Investor Group's Motion for Appointment of Lead
Plaintiff, and (ii) denied Public Employees Retirement Association
of New Mexico's.
The case is a putative class action filed against Energy Transfer
and two of its senior executives for securities fraud under
Sections 10(b) and 20(a) of the Securities Exchange Act -- as
amended by the Private Securities Litigation Reform Act of 1995
("PSLRA") -- and SEC Rule 10b-5.
Energy Transfer is a Dallas-based energy transportation and storage
company that operates some of the largest oil and gas pipelines in
the United States. Among its projects is the Mariner East
pipeline. Mariner East is a multibillion-dollar, 350-mile pipeline
that carries "highly volatile natural gas liquids" from the
Marcellus and Utica Shales areas in western Pennsylvania, West
Virginia, and eastern Ohio across Pennsylvania to, among other
places, Energy Transfer's Marcus Hook Industrial Complex on the
Delaware River. There the gas liquid is processed, stored, and
distributed to domestic and international markets.
The first phase of the project, Mariner East 1, consisted of
interstate and intrastate propane and ethane service which
commenced operations in late 2014 and early 2016, respectively.
The second phase of the project, named Mariner East 2, proposed
transporting natural-gas liquids across Pennsylvania to a terminal
in Marcus Hook, just outside Philadelphia. According to the
Plaintiffs, Energy Transfer had a difficult time securing approval
for the second phase because of permit application deficiencies and
public concern over the environmental impact of the project.
Nevertheless, the Pennsylvania Department of Environmental
Protection approved the second phase of the project in early
February 2017. Energy Transfer began construction on Mariner East
2 quickly thereafter, and the project became operational in
December 2018.
In November 2019, the Associated Press reported that the FBI had
begun a corruption investigation into how Gov. Tom Wolf's
administration came to issue permits for construction on a
multibillion-dollar pipeline project to carry highly volatile
natural gas liquids across Pennsylvania. In the main, the FBI
seems to have been examining whether Governor Wolf's administration
inappropriately pushed its staff to approve construction permits
for the pipeline, and whether those staff received anything of
value in return. Over the two trading days following the A.P.'s
report, the share price of Energy Transfer fell nearly 7%.
Lawsuits followed swiftly, first in the Northern District of Texas
and then in this District. In the Complaint filed in the District,
the Plaintiffs assert violations of the federal securities laws
arising from Energy Transfer's allegedly false or misleading
statements about, among other things, its role in obtaining permits
for the Mariner East pipeline, as well as its compliance with its
internal Code of Business Conduct and Ethics. The Complaint
charges that Energy Transfer and certain of its senior executives
failed to disclose that the permits received to commence work on
the Mariner East pipeline project in Pennsylvania were secured
through bribes or other improprieties, which would have increased
the risk that Energy Transfer or certain of its employees would be
subject to government or regulatory action.
Presently pending before the Court are competing Motions for
Appointment as Lead Plaintiff and Approval of Selection of Lead
Counsel. One Motion was filed by a collection of retirement and
pension funds, consisting of the Allegheny County Employees'
Retirement System, the Employees' Retirement System of the City of
Baton Rouge and Parish of East Baton Rouge, the Denver Public
Employees Retirement Plan, the IAM National Pension Fund, and the
Iowa Public Employees' Retirement System ( "Institutional Investor
Group"). The other Motion was filed by New Mexico. Both parties
argue that they are the "most adequate Plaintiff" as that term is
used in the PSLRA and defined in the case law, and it is a case
where the parties rely on the same authorities but use them to
reach opposite conclusions.
Judge McHugh finds that the Institutional Investor Group
collectively purchased 8,722,995 shares of Energy Transfer stock
during the putative class period, while New Mexico purchased
roughly a third of that number, at 2,959,365. The total net funds
expended by the Institutional Investor Group during the period was
$103,145,535, while that number for New Mexico was $42,836,907.
Thus, all three of the Cendant factors weigh squarely in favor of
the Institutional Investor Group.
Because the Institutional Investor Group has shown that it has the
largest financial interest in the relief sought in the action,
Judge McHugh must now examine whether it otherwise satisfies the
requirements of Rule 23. He finds that the Institutional Investor
Group has demonstrated that it satisfies both prongs of Rule 23.
First, the Institutional Investor Group is a collection of typical
Plaintiffs. Second, it will adequately represent the class.
Third, it has made a successful preliminary showing of adequacy and
typicality, and that it is the most adequate Lead Plaintiff for the
present action.
Under the PSLRA, once a court determines which prospective lead
plaintiff is most adequate, another movant has the opportunity to
present evidence in rebuttal. The presumption may be rebutted only
upon proof by a member of the purported plaintiff class that the
presumptively most adequate plaintiff -- (aa) will not fairly and
adequately protect the interests of the class; or (bb) is subject
to unique defenses that render such plaintiff incapable of
adequately representing the class. Neither New Mexico nor any
other putative class member has presented proof that the
Institutional Investor Group will not fairly or adequately protect
the interests of the class, nor has any argued that the Group is
subject to any unique defenses in the underlying action. The
presumption that the Institutional Investor Group's is the most
adequate Plaintiff is controlling.
The Institutional Investor Group has selected Barrack, Rodos &
Bacine and Bernstein Litowitz Berger and Grossmann LLP as the Lead
Counsel as the co-lead counsel. While New Mexico raises concerns
about the appointment of multiple law firms in these actions,
courts have not taken issue with two firms sharing lead counsel
responsibilities when they are assured of their competency and
experience. Both Barrack, Rodos & Bacine and Bernstein Litowitz
Berger and Grossmann LLP have substantial experience litigating
complex securities class actions, and seem well positioned to do so
here. With respect to co-counsel, Judge McHugh expects that there
will be no duplication of attorneys' services, and that the use of
co-lead counsel will not in any way lead to an increase in
attorneys' fees or expenses.
For the reasons set forth, Judge McHugh granted the Institutional
Investor Group's Motion for Appointment of Lead Plaintiff, and
denied New Mexico's. He appointed (i) the Institutional Investor
Group as the Lead Plaintiff, and (ii) the Lead Plaintiff's
selection of the law firms of Barrack, Rodos & Bacine and Bernstein
Litowitz Berger and Grossmann LLP as the Lead Counsel. An
appropriate Order follows.
A full-text copy of the Court's Feb. 19, 2020 Memorandum Opinion is
available at https://is.gd/x3jBzy from Leagle.com.
ALLEGHENY COUNTY EMPLOYEES' RETIREMENT SYSTEM, INDIVIDUALLY AND ON
BEHALF OF ALL OTHERS SIMILARLY SITUATED, Plaintiff, represented by
JAMES M. FICARO, THE WEISER LAW FIRM PC, MARK S. GOLDMAN --
mgoldman@labaton.com -- GOLDMAN SCARLATO & PENNY PC, JACOB A.
GOLDBERG -- jgoldberg@rosenlegal.com -- THE ROSEN LAW FIRM, JEFFREY
W. GOLAN, BARRACK RODOS & BACINE, LAWRENCE F. STENGEL --
lfs@saxtonstump.com -- SAXTON STUMP & ROBERT A. HOFFMAN, BARRACK,
RODOS & BACINE.
ENERGY TRANSFER LP, KELCY L. WARREN, JOHN W. MCREYNOLDS & THOMAS E.
LONG, Defendants, represented by CURTIS J. CROWTHER --
ccrowther@ycst.com -- YOUNG CONAWAY STARGATT & TAYLOR LLP.
ERMINIA RESTAURANT: Barcenas Sues over Tip Pooling
--------------------------------------------------
RICARDO BARCENAS, on behalf of himself, FLSA Collective Plaintiffs
and the Class, Plaintiffs v. ERMINIA RESTAURANT CORP. a/k/a ERMINIA
CORP d/b/a LATTANZI RESTAURANT, VITTORIO LATTANZI, and FRANCO PAUL
LATTANZI, Defendants, Case No. 1:20-cv-01924 (S.D.N.Y., March 4,
2020) is a class and collective action complaint brought against
Defendants for their alleged violations of the Fair Labor Standards
Act and New York Labor Law.
Plaintiff began employment with Defendants on or around November 1,
2019, as a Waiter for Defendants' restaurants and was scheduled to
work six-hour days during his training period -- the first three
days of his employment.
According to the complaint, Plaintiff worked as a bartender,
dishwasher and waiter for approximately 24 hours per week for
$10.00 per hour from on or about November 4, 2019 until Plaintiff's
termination on January 10, 2020. Throughout the remainder of his
employment, Plaintiff only earned tips during periods he was
engaged as a waiter but were distributed by Defendants according to
a tip-pool arrangement.
The complaint asserts that Defendants:
-- failed to properly provide tip credit notice in violation
of the FLSA;
-- failed to inform Plaintiffs that the tip credit claimed by
Defendants cannot exceed the amount of tips actually received by
Plaintiffs in violation of the FLSA;
-- failed to inform that all tips received by Plaintiffs are
to be retained by Defendants except pursuant to a valid tip pooling
arrangement in violation of the FLSA;
-- failed to inform the tip credit will not apply unless they
have been informed of the foregoing tip credit notice requirement
in violation of the FLSA;
-- claimed tip credit for all hours worked despite having
caused tipped employees to engage in non-tipped duties for hours
exceeding 20% of the total hours worked each workweek in violation
of the FLSA and NYLL;
-- illegally retained gratuities;
-- implemented an invalid tip pooling because Defendants
retained tips;
-- failed to accurately track daily tips earned or maintain
records thereof;
-- failed to properly provide tip credit notice at hiring and
annually thereafter in violation of the NYLL; and
-- failed to properly provide a proper wage statement with
payment of wages informing Plaintiff and other tipped employees of
the amount of tip credit deducted for each payment period.
Vittorio Lattanzi and Franco Paul Lattanzi are owners and operators
of Lattanzi Restaurant located at 361 West 46th Street, New York,
NY 10013.
Erminia Restaurant Corp. a/k/a Erminia Corp d/b/a Lattanzi
Restaurant is a corporate Italian restaurant. [BN]
The Plaintiff is represented by:
C.K. Lee, Esq.
Anne Seelig, Esq.
LEE LITIGATION GROUP, PLLC
148 West 24th Street, 8th Floor
New York, NY 10011
Tel: 212-465-1188
Fax: 212-465-1181
Website: http://www.leelitigation.com
GEICO: Underpays Vehicle Insurance Claims, Angell et al. Allege
---------------------------------------------------------------
PHILIP ANGELL, STEVEN BROWN, TONNIE BECK, TAMMY MORRIS, and DAWN
BURNHAM, individually and on behalf of all similarly situated,
Plaintiffs v. GEICO ADVANTAGE INSURANCE COOMPANY, GEICO INDEMNITY
COMPANY, GOVERNMENT EMPLOYEES INSURANCE COMPANY, GEICO COUNTY
MUTUAL INSURANCE COMPANY, and GEICO CHOICE INSURANCE COMPANY,
Defendants, Case No. 4:20-cv-00799 (S.D. Tex., March 5, 2020) is a
class action lawsuit brought against Defendants for their alleged
breach of insurance policies on the first-party total loss claims.
The Geico Insurance Policy provides comprehensive and collision
coverage with a coverage limit of actual cash value.
Plaintiffs are owner of the vehicles insured by the Defendants:
-- Brown insured his 2016 Toyota Tacoma SR5 under a Policy
issued by GEICO Indemnity;
-- Angell insured a 2015 Lexus RC 350 under the Policy issued
by GEICO Advantage.
-- Beck insured a 2015 Ford Escape under the policy issued by
Government Employees;
-- Morris insured a 2007 BMW 550I under the policy issued by
GEICO County;
-- Burnham insured a 2012 Chevrolet Cruze LS under the policy
issued by GEICO Choice.
The lawsuit asserts that Defendants failed to provide coverage for
the full actual cash value of insured vehicles and pay the
"replacement costs" mandated by Texas law, including sales tax,
title transfer fees, and fees for registration, inspection, and
emissions.
Plaintiffs seek compensatory damages in amounts owed under the
Policies; injunctive relief to prevent continuation of Defendants'
illegal practice; for all other damages according to proof; 18%
interest on all amounts owed pursuant to Texas Insurance Code
542.051; for attorneys' fees and expenses as appropriate pursuant
to applicable law, including Texas Civil Practice & Remedies Code
Sec. 38.001 and Texas Insurance Code 542.051; and for other costs
and forms of relief.
All Defendants operate under the GEICO brand, insure under the same
policy forms, and have the same practices and procedures with
regard to insuring and adjusting total loss claims. [BN]
The Plaintiffs are represented by:
Richard Daly, Esq.
John Scott Black, Esq.
DALY & BLACK, P.C.
2211 Norfolk St., Ste. 800
Houston, TX 77098
Tel: (713)655-1405
Fax: (713)655-1587
Emails: ecfs@dalyblack.com
rdaly@dalyblack.com
jblack@dalyblack.com
- and -
Angelica Gentile, Esq.
SHAMIS & GENTILE
14 NE 1st Ave., Suite 1205
Miami, FL 33132
Tel: 305-479-2299
Email: agentile@shamisgentile.com
- and -
Edmund A. Normand, Esq.
Jacob L. Phillips, Esq.
NORMAND PLLC
Orlando, FL 32814-0036
Tel: 407-603-6031
Emails: firm@ednormand.com
ed@ednormand.com
jacob.phillips@normandpllc.com
- and -
Scott Edelsberg, Esq.
EDELSBERG LAW
19495 Biscayne Blvd #607
Aventura, FL 33180
Tel: (305) 975-3320
Email: scott@edelberglaw.com
- and -
Christopher B. Hall, Esq.
HALL & LAMPROS, LLP
400 Galleria Parkway, Suite 1150
Atlanta, GA 30339
Tel: (404)876-8100
Fax: (404)876-3477
Email: chall@hallandlampros.com
- and -
Bradley W. Pratt, Esq.
PRATT CLAY LLC
4401 Northside Parkway, Suite 520
Atlanta, GA
Tel: (404)949-8118
Fax: (404)949-8159
Email: Bradley@prattclay.com
GERON CORP: Misleads Investors on IMbark Test Result, Pfeifer Says
------------------------------------------------------------------
KEVAN PFEIFER, individually and on behalf of all others similarly
situated, Plaintiff v. GERON CORPORATION, JOHN A. SCARLETT and
OLIVIA K. BLOOM, Defendants, Case No. 2:20-cv-02424 (D.N.J., March
5, 2020) is a securities class action complaint brought against
Defendants for their alleged materially false and misleading public
statements in violation of the Securities Exchange Act of 1934.
According to the complaint, Geron partnered with Janssen Biotech
Inc., a division of Johnson & Johnson, for the development of
imetelstat pursuant to a Collaboration and License Agreement that
became effective on December 15, 2014, upon which Geron received a
$35 million upfront payment from Janssen.
Janssen's decision to collaborate with Geron was based on the
results of IMbark Phase 2 trial conducted under the supervision of
a Joint Steering Committee consisting of both Geron and Janssen
employees. However, the IMbark Phase 2 Trial result was a failure.
On March 19, 2018, Geron held a conference call with investors,
analysts, and the media wherein Defendant Scarlett discussed the
median overall survival of patients in the IMbark study and
suggested that the IMbark study supported the conclusion that
imetelstat lengthened the lives of patients with myelofibrosis.
The complaint claims that Scarlett failed to disclose the failure
to reach the primary endpoints of the study: namely, spleen
response rates and reduction in TSS, thereby misleading investors
regarding imetelstat and the results from the IMbark trial.
Imetelstat was Geron's one major asset and hoped to inhibit
telomerase, a ribonucleoprotein implicated in cell death and
longevity that is found in most cancer cells, as a potential means
for treating certain blood cancers.
Plaintiff Pfeifer purchased Geron securities during the Class
Period and has been damaged thereby.
John A. Scarlett was CEO and President of Geron and Olivia K. Bloom
was Geron's CFO. Both ran the company as hands-on managers
overseeing Geron's operations and finances and were intimately
involved in deciding which disclosures would be made by Geron.
Geron Corporation is a clinical-stage biopharmaceutical company
focused on the development of a telomerase inhibitor, imetelstat,
for the treatment of hematologic myeloid malignancies. [BN]
The Plaintiff is represented by:
Christopher A. Seeger, Esq.
Christopher L. Ayers, Esq.
SEEGER WEISS LLP
55 Challenger Road, 6th Floor
Ridgefield Park, NJ 07660
Tel: 212-584-0700
Fax: 212-584-0799
Email: cseeger@seegerweiss.com
cayers@seegerweiss.com
- and -
Samuel H. Rudman, Esq.
ROBBINS GELLER RUDMAN & DOWD LLP
58 South Service Road, Suite 200
Melville, NY 11747
Tel: 631-367-7100
Fax: 631-367-1173
Email: srudman@rgrdlaw.com
GLOBAL CREDIT: Arbitration Compelled in Castle FDCA Suit
--------------------------------------------------------
Judge Steven C. Seeger of the U.S. District Court for the Northern
District of Illinois, Eastern Division, granted the Defendants'
motions to compel arbitration in the case, BONNIE CASTLE,
Plaintiff, v. GLOBAL CREDIT & COLLECTION CORP., et al., Defendants,
Case No. 1:18-cv-06888 (N.D. Ill.).
Plaintiff Castle applied online for a credit card with Credit One
Bank, N.A. in 2014. During the application process, the Plaintiff
had access to the proposed credit agreement, and acknowledged its
terms by finalizing the application. Credit One accepted her
application and opened her credit card account, which she used for
several years. Sometime later, Credit One amended the credit
agreement, and mailed a copy to the Plaintiff. She continued to
use her account. Both the original and amended agreements included
an arbitration provision.
In 2017, Credit One assigned the rights to the Plaintiff's account
to a credit agency, and the receivables went through a string of
assignments from one company to another. At the end of the string,
Defendant LVNV, a debt collection agency, ultimately acquired the
Plaintiff's account. LVNV assumed all "rights, title, and interest
in" the Plaintiff's account.
Later that year, LVNV sued the Plaintiff to collect an outstanding
balance on her credit card account. The parties settled the suit
and released the Plaintiff from her debt in January 2018. Sometime
after settlement, Defendant Resurgent Capital Services, L.P., a
debt collection agency acting on behalf of LVNV, hired Defendant
Global Credit to collect the discharged debt. Aptly-named
Resurgent attempted to collect a debt that the Plaintiff no longer
owed.
Global Credit sent the Plaintiff two collection letters. Castle
received a letter from a debt collector, Global Credit, to collect
an outstanding balance on her credit card account. That was news
to her. She had settled with the owner of that debt, LVNV, about
six months earlier. One month after the first letter, Global
Credit sent a second one, this time offering to settle the debt for
50 cents on the dollar (when she owed nothing).
Instead of paying a debt that she did not owe, Castle turned the
tables. On Oct. 12, 2018, Castle filed suit under the Fair Debt
Collection Practices Act on behalf of herself and a putative class.
She essentially alleges that the letters were a trick. The debt
was time-barred, but making a partial payment on the debt arguably
could have restarted the statute of limitations. By luring an
otherwise unsuspecting consumer into making a payment, the
collection agency could turn nothing into something.
At first, the Defendants engaged the dispute in the federal forum.
But a few months later, they moved to compel arbitration. The
Plaintiff now argues that the Defendants waived their right to
arbitration by not filing their motions sooner.
Judge Seeger holds that Congress created a strong federal policy in
favor of arbitration, and courts must respect the policy decisions
of the political branches. The Plaintiff agreed to arbitration in
the contract, and she has not met her burden of establishing a
waiver.
In light of the strong federal policy favoring arbitration and the
enforcement of arbitration agreements, the Court holds that the
Defendants did not waive their right to arbitration. The
Defendants did not act with alacrity, but they did not delay the
issue long enough to surrender their contractual right to
arbitration.
Judge Seeger granted the motions to compel and stayed the case
until the completion of arbitration.
A full-text copy of the District Court's Jan. 10, 2020 Memorandum
Opinion & Order is available at https://is.gd/Qy7Qt5 from
Leagle.com.
Bonnie Castle, on behalf of plaintiff and a class, Plaintiff,
represented by Cathleen M. Combs, Edelman, Combs, Latturner &
Goodwin LLC, Tiffany Nicole Hardy, Edelman, Combs, Latturner &
Goodwin LLC & Daniel A. Edelman, Edelman, Combs, Latturner &
Goodwin LLC.
Global Credit & Collection Corporation, Defendant, represented by
Andrew E. Cunningham -- acunningham@sessions.legal -- Sessions
Fishman Nathan & Israel, LLC, Morgan Ian Marcus --
mmarcus@sessions.legal -- Sessions Fishman Nathan & Israel, LLC &
Syed Haseeb Hussain -- shussain@sessions.legal -- Sessions Fishman
Nathan & Israel LLC.
Resurgent Capital Services, L.P. & LVNV Funding, LLC, Defendants,
represented by Nicole Marie Strickler --
nstrickler@messerstrickler.com -- Messer Strickler, Ltd. &
Katherine Maria Saldanha Olson -- kolson@messerstrickler.com --
Messer Strickler, Ltd..
HANNA ANDERSSON: Barnes Sues Over Data Breach
---------------------------------------------
Bernadette Barnes, an individual and California resident, on behalf
of herself and all others similarly situated, Plaintiff, v. Hanna
Andersson, LLC and Salesforce.Com, Inc., Defendants, Case No.
20-cv-00812, (N.D. Cal., February 3, 2020), seeks injunctive
relief, statutory damages, attorneys' fees, costs together with
other relief resulting from negligence and for violation of
California's Unfair Competition Law.
Hanna Andersson specializes in selling high-end children's apparel
through its popular website and specialty retail stores throughout
the United States. For online sales, Hanna uses Salesforce's
Commerce Cloud Unit to take customers' personal and payment
information. On January 15, 2020, Hanna Andersson notified
customers about a widespread data breach that occurred from
September 16, 2019 to November 11, 2019.[BN]
The Plaintiff is represented by:
M. Anderson Berry, Esq.
CLAYEO C. ARNOLD, A PROFESSIONAL LAW CORPORATION
865 Howe Avenue
Sacramento, CA 95825
Telephone: (916) 777-7777
Facsimile: (916) 924-1829
Email: aberry@justice4you.com
- and -
John A. Yanchunis, Esq.
MORGAN & MORGAN COMPLEX LITIGATION GROUP
201 N. Franklin Street, 7th Floor
Tampa, FL 33602
Tel: (813) 223-5505
Fax: (813) 223-5402
Email: jyanchunis@ForThePeople.com
IDAHO: Court to Hear Bid to Enforce K.W. Settlement on March 19
---------------------------------------------------------------
In the case, K.W., by his next friend D.W., et al., Plaintiffs, v.
RICHARD ARMSTRONG, in his official capacity as Director of the
Idaho Department of Health and Welfare; PAUL LEARY, in his official
capacity as Medicaid Administrator of the Idaho Department of
Health and Welfare; and the IDAHO DEPARTMENT OF HEALTH AND WELFARE,
a department of the State of Idaho, Defendants. TOBY SCHULTZ, et
al. Plaintiffs, v. RICHARD ARMSTRONG, et al., Defendants, Case Nos.
1:12-cv-00022-BLW (lead case), 3:12-CV-58-BLW (D. Idaho), Judge B.
Lynn Winmill of the U.S. District Court for the District of Idaho
denied the Defendants' motion for extension of time and an amended
motion for extension of time.
The Court also has a pending motion to enforce settlement agreement
filed by the Plaintiffs that the Defendants have not responded to
pending resolution of their motions for extension of time.
In their motions, the Defendants request an order:
(1) allowing them to take limited discovery into the basis for
the motion to enforce, including deposing the class
representatives (for no more than two hours);
(2) extend the time within which they must respond to the
motion to enforce to allow for limited discovery; and
(3) requiring the class counsel to clarify who the class
representatives in the case are.
The case was originally filed in 2012. Two years have passed since
the class action settlement has been proposed. Judge Winmill
expresses no opinion on the motion to enforce -- and the arguments
concerning whether additional time is needed to construct the
budget tool -- other than to say that there must be some urgency in
the resolution of that motion. The class members are well-known
and the discovery sought by defendants does not, at this time,
appear important enough to delay any further the resolution of the
motion to enforce.
For the reasons stated, the Court denied the Motion to Extend and
the Amended Motion to Extend. The Defendants was directed to
respond to the pending Motion to Enforce on Feb. 20, 2020. The
final reply brief by the Plaintiffs will be due in accordance with
Local Rules.
A hearing will be held on the Motion to Enforce on March 19, 2020,
at 1:30 p.m. in the Federal Courthouse in Boise Idaho.
A full-text copy of the Court's Jan. 31, 2020 Memorandum Decision &
Order is available at https://is.gd/1NFVTV from Leagle.com.
K W, by his next friend DW, Christie Mathwig, formerly known as CM,
C L, A L, through her guardian EB, K S, through his next friend SS,
Matthew S, through his guardian VS, N R, through her next friend
GR, T F, through her guardian RF, T M, through his guardian TW, B
B, through his next friend DB, R P, through her guardian TP, Marcia
S, through her guardian DS, E L, Toby Schultz, Breanna Mullic &
Caleb Hall, Plaintiffs, represented by James Marshall Piotrowski --
James@idunionlaw.com -- HERZFELD & PIOTROWSKI, Marty Durand --
Marty@idunionlaw.com -- Herzfeld & Piotrowski, LLP & Richard Alan
Eppink -- reppink@acluidaho.org -- American Civil Liberties Union
of Idaho Foundation.
Richard Armstrong, in his official capacity as Director of the
IDH&W, Idaho Department of Health and Welfare, a department of the
State of Idaho & Lisa Hettinger, in her official capacity as
Medicaid Administrator of the IDH&W, Defendants, represented by
Brian V. Church, Office of the Attorney General, Civil Litigation
Division, Cynthia Lin Yee-Wallace, Office of Attorney General & W.
Scott Zanzig, Office of the Idaho Attorney General, Civil
Litigation.
Idaho Care Providers Network, Amicus, represented by James Marshall
Piotrowski, HERZFELD & PIOTROWSKI & Marty Durand, Herzfeld &
Piotrowski, LLP.
ILLINOIS: Bid to Sanction Dr. Newbold & Counsel in Winger Denied
----------------------------------------------------------------
In the case, MARK WINGER, #K97120, Plaintiff, v. JOHN BALDWIN,
LOUIS SHICKER, DR. NEWBOLD, COLLEEN RUNGE, and DR. ASSELMEIER,
Defendants, Case No. 19-cv-00236-NJR (S.D. Ill.), Judge Nancy J.
Rosenstengel of the U.S. District Court for the Southern District
of Illinois (i) granted Winger's motion to amend, (ii) denied
Winger's Motion for Sanctions, and (iii) denied Winger's Motion for
Reconsideration.
Winger filed the civil rights action pursuant to 42 U.S.C. Section
1983 for federal and state law deprivations that allegedly occurred
during his incarceration in the Illinois Department of Corrections
("IDOC") between 2012 and 2018. The Complaint addressed five
separate incidents against the Defendants at multiple institutions.
On May 1, 2019, the Court severed the claims arising from four
incidents into separate cases. The case focuses on a fifth
incident involving the denial of dental care for Winger's loose
crown at Menard Correctional Center in 2018. The Complaint was
dismissed without prejudice, and Winger was granted leave to file a
First Amended Complaint to address his dental claims.
Following an initial screening of the First Amended Complaint
pursuant to 28 U.S.C. Section 1915A, Winger was allowed to proceed
with the following counts: (i) Count 1 - Eighth Amendment
deliberate indifference claim against State Defendants John Baldwin
and Louis Shicker for allowing inadequate staffing, leadership
vacancies, and insufficient sick call procedures that caused the
delay and/or denial of dental care for Plaintiff's loose crown at
Menard in 2018; and (ii) Count 2 - Eighth Amendment deliberate
indifference claim against Dr. Newbold and Colleen Runge for
delaying or denying dental care for the Plaintiff's loose crown at
Menard in 2018.
Winger submitted a Motion for Leave to File a Second Amended
Complaint on Sept. 13, 2019, which the Court denied without
prejudice for failure to comply with Local Rule 15.1. Again, on
Dec. 17, 2019, Winger filed another Motion for Leave to File Third
Amended Verified Complaint, in which he brings claims against an
additional Defendant, Dr. Asselmeier and previously dismissed
Defendants, Pritzker and Rauner, as well as modifies his request
for relief.
Defendant Dr. Newbold filed a Response to the motion arguing that
the Court may deny leave to file an amended complaint in the case
of undue delay, bad faith or dilatory motive on the part of the
movant, repeated failure to cure deficiencies by amendments
previously allowed, undue prejudice to the opposing party by virtue
of allowance of the amendment, and futility of amendment. Because
Winger attempts in his proposed Third Amended Complaint to bring
claims previously dismissed and requests permission to bring a
class action, also previously denied, and such claims are not
underlined, Dr. Newbold argues that the Motion should be denied.
If the Court grants Winger's leave to file his Third Amended
Complaint, Dr. Newbold requests the Court to conduct a preliminary
review under 28 U.S.C. Section 1915A.
The Court now considers Winger's motion to amend, as well as other
pending motions -- Motion for Sanctions, Motion for
Reconsideration, and Motion for Preliminary Injunction.
For the reasons stated and as articulated in the Merit Review Order
of the First Amended Complaint, Judge Rosenstengel finds that the
following Counts will proceed: (i) Count 1 - Eighth Amendment
deliberate indifference claim against John Baldwin and Louis
Shicker for allowing inadequate staffing, leadership vacancies, and
insufficient sick call procedures that caused the delay and/or
denial of dental care for Plaintiff's loose and eventually lost
crown in Menard in 2018; (ii) Count 2 - Eighth Amendment deliberate
indifference claim against Dr. Newbold, Colleen Runge, and Dr.
Asselmeier for delaying and/or denying dental care, including false
diagnosis and interference with prescribed treatment, for
Plaintiff's loose and eventually lost crown at Menard in 2018; and
(iii) Count 3 - Eighth Amendment deliberate indifference claim
against John Baldwin, Louis Shicker, and Dr. Asselmeier for
maintaining and implementing the IDOC policy prohibiting crown
procedures, preventing the Plaintiff from receiving adequate dental
care and causing physical pain and suffering.
Winger again has sought permission to bring a class action. For
the reasons stated in the Court's Merit Review Order of the First
Amended Complaint, the Court denied the request for certification
as a class action.
Winger has filed a motion requesting the Court to sanction Dr.
Newbold and his counsel for failing to appear at the preliminary
injunction hearing held on Oct. 17, 2019, and for misrepresenting
the facts during the hearing. He argues that Dr. Newbold was
ordered to appear in person pursuant to Court Order, and because
Dr. Newbold was not at the hearing, Winger was unable to question
the doctor and establish his likelihood of success on the merits.
The Court holds that while there does seem to be discrepancies in
the call pass log submitted by Winger and the medical records
submitted by Dr. Newbold, it does not demonstrate bad faith.
Winger has not also demonstrated how Dr. Newbold's actions
prejudiced him in litigating his motion. Thus, the Motion for
Sanctions is denied.
Winger has also filed a motion asking the Court to reconsider the
denial of his preliminary injunction motion. The Court does not
find that exceptional circumstances exist in the case to warrant
the extraordinary remedy that Winger seeks. Rule 60(b) is not an
appropriate vehicle for addressing simple legal error, for
rehashing old arguments, or for presenting arguments that should
have been raised before the Court made its decision. A contention
that the judge erred with respect to the materials in the record,
as Winger is doing, is not within the scope of Rule 60(b) Gleash v.
Yuswak. Thus, the Motion is denied.
Winger has filed a Motion for Preliminary Injunction asking the
Court to order the Defendants to restore or repair his tooth #2.
He claims that his damaged tooth #2 is at imminent risk of
irreparable harm and has fractured since the previous preliminary
injunction hearing regarding his dental concerns of the same tooth.
Because Winger claims he is continuing to be injured by IDOC's
statewide policy prohibiting crown replacement, even after his
transfer, the Judge will not dismiss the motion as moot at this
time. The Defendants were ordered to respond to the request for a
preliminary injunction, at which point the Court will determine the
need for a hearing on the request for preliminary injunction.
Because the unknown Defendant John/Jane Doe 3 has been identified,
Frank Lawrence, Warden of Menard Correctional Center, is no longer
a necessary party, and is dismissed without prejudice.
Pursuant to Rule 15, and after review of the Third Amended
Complaint pursuant to 28 U.S.C. Section 1915A, the Court granted
Winger's Motion for Leave to File an Amended Complaint. Count 1
will proceed against Baldwin and Shicker; Count 2 will proceed
against Newbold, Runge, and Asselmeier; and Count 3 will proceed
against Baldwin, Shicker, and Asselmeier.
The Clerk of Court is directed to file the Third Amended Complaint
and to add Dr. Asselmeier to the docket as a Defendant. For the
reasons stated, Acting Warden Frank Lawrence is dismissed without
prejudice, and the Clerk is directed to terminate him from the
docket.
The Court denied the Motion for Sanctions and the Motion for
Reconsideration.
Finally, the Defendants are ordered to respond to the Motion for
Preliminary Injunction, at which point the Court will determine the
need for a hearing on the Motion.
Furthermore, the Clerk of Court will prepare for Asselmeier: (i)
Form 5 (Notice of a Lawsuit and Request to Waive Service of a
Summons), and (ii) Form 6 (Waiver of Service of Summons). The
Clerk is directed to mail these forms, a copy of the Third Amended
Complaint, the original Merit Review Order of the First Amended
Complaint, the Memorandum and Order, and the Motion for Preliminary
Injunction to the Defendant's place of employment as identified by
Winger.
The Defendants are ordered to timely file an appropriate responsive
pleading to the Third Amended Complaint and will not waive filing a
reply pursuant to 42 U.S.C. Section 1997e(g).
Pursuant to Administrative Order No. 244, the Defendants should
respond to the issues stated in the original Merit Review Order of
the First Amended Complaint and in the Merit Review Order. The
Defendants are advised that the Court does not accept piecemeal
answers.
A full-text copy of the District Court's Jan. 10, 2020 Memorandum &
Order is available at https://is.gd/ET01Bk from Leagle.com.
Mark Winger, Plaintiff, pro se.
Director John Baldwin, Director of IDOC, added per First Amended
Complaint, Louis Shicker, Medical Director of IDOC, added per First
Amended Complaint, Acting Warden Frank Lawrence, official capacity
only & Colleen Runge, Defendants, represented by Robert Brandon
Shultz, Office of the Attorney General.
Dr. Newbold, Defendant, represented by Timothy P. Dugan --
tdugan@cassiday.com -- Cassiday Schade, LLP & Alison J. Matusofsky
-- amatusofsky@cassiday.com -- Cassiday Schade, LLP.
INNOVACARE HEALTH: Minority Stockholders Sue D&Os over Summit Deal
------------------------------------------------------------------
The case, AMBER MOUNTAIN TRADING LP, individual and on behalf of
all others similarly situated, Plaintiff v. DANIEL E. STRAUS,
RICHARD SHINTO, STEPHEN BAKER, JONATHAN KOLATCH, and RAPHAEL
BENAROYA, Defendants, Case No. 2:20-cv-02369 (D.N.J., March 4,
2020) alleges InnovaCare Health entered into a merger agreement on
July 16, 2019, with affiliates of Summit Partners, L.P. whereby
Summit agreed to acquire InnovaCare for initial total cash
consideration of $1.05 billion, but the total consideration paid by
Summit was not shared equally among all InnovaCare stockholders and
at least $90 million in buyout consideration was siphoned off by
Daniel Straus, including an unjustifiably large $64 million payment
disguised as consideration for a personal covenant-not-to-compete.
Moreover, the minority stockholders of InnovaCare were not provided
an opportunity to separately vote on whether to approve the Merger
and the various side payments.
Daniel Straus is the founder, chairman, and controlling stockholder
of InnovaCare. Reportedly, Straus controls the board of directors
and caused them to approve terms that paid Straus substantial side
benefits that directly reduced the Merger consideration paid to
minority stockholders, thereby violating his fiduciary duties and
caused his dominated Board to do the same.
Under Delaware law, a controlling stockholder cannot abuse its
position of control to compete with minority stockholders for
consideration and extract greater consideration or a unique benefit
in the context of a merger transaction.
Plaintiff seeks to recover damages on behalf of InnovaCare minority
stockholders.
Amber Mountain Trading LP was a stockholder of InnovaCare. [BN]
The Plaintiff is represented by:
James E. Cecchi, Esq.
Mark M. Makahil, Esq.
CARELLA, BYRNE, CECCHI OLSTEIN, BRODY & AGNELLO
5 Becker Farm Road
Roseland, NJ 07068
Tel: (973)994-1700
- and -
Ned Weinberger, Esq.
LABATON SUCHAROW LLP
300 Delaware Ave., Suite 1340
Wilmington, DE 19801
Tel: (302)573-2540
Email: nweinberger@labaton.com
- and -
David Schwartz, Esq.
John Vielandi, Esq.
David, MacIsaac, Esq.
LABATON SUCHAROW LLP
140 Broadway
New York, NY 10005
Tel: (212)907-0700
Emails: dschwartz@labaton.com
vielandi@gmail.com
INTELENET AMERICA: Class of CSRs in Clark Conditionally Certified
-----------------------------------------------------------------
In the case, JASMINE CLARK et al., Plaintiffs, v. INTELENET
AMERICA, LLC (d/b/a Intelenet Global Services), Defendant, Civil
Action No. 18-14052 (D. N.J.), Judge Madeline Cox Arleo of the U.S.
District Court for the District of New Jersey granted the
Plaintiffs' motion to conditionally certify the putative
collective.
The Defendant is a U.S.-based company that operates professional
call center services for corporate clients. It employs customer
service representatives ("CSRs") who work from home or from its
brick-and-mortar call centers. According to the Defendant, it had
seven customer accounts during the relevant period, but the
Plaintiffs and their declarants all worked on Account 1.
The Plaintiffs were employed by the Defendant as at-home CSRs on an
hourly non-exempt basis. Clark was an at-home CSR in Florida from
January 2018 to November 2018. Legree was an at-home CSR in New
Jersey from January 2018 to August 2018. Both Clark and Legree
state that they typically worked at least 40 hours per five-day
workweek and were paid $11.25 per hour, plus shift differentials
and incentive pay.
The Plaintiffs allege that all at-home CSRs were required to
perform a variety of off-the-clock work without compensation,
including: (1) pre-shift computer start-up and login activities;
(2) post-shift computer logout and shutdown activities; and (3)
work-related computer and phone activities during unpaid meal
breaks. They further allege that they could not access "XactTime,"
the Defendant's timekeeping software, until after they completed
the alleged startup and login activities. They claim that they
were required to perform post-shift logout and shutdown activities
after logging out of XactTime.
The Plaintiffs estimate that they performed "in the range of 15
minutes" of unpaid pre-shift work, "1 to 10 minutes" of unpaid
meal-break work, and between "3 to 4 minutes" of unpaid post-shift
work daily, although sometimes more if they experienced technical
problems, and "in the range of 5 to 10 minutes" of unpaid work per
shift during their eight weeks of training.
According to the Plaintiffs, the Defendant enforced these de facto
off-the-clock work requirements in part through its written
attendance policy, which requires CSRs to be logged in and on their
phones no more than three minutes after the start of their
scheduled shift. They also claim that the Defendant improperly
excluded shift differential pay and incentive pay from their
overtime rates.
The Plaintiffs filed suit against the Defendant on Sept. 20, 2018,
on behalf of themselves and all other similarly situated
individuals. On April 29, 2019, they filed a First Amended
Collective and Class Action Complaint, alleging: (1) violations of
the Fair Labor Standards Act ("FLSA"), on behalf of themselves and
a putative collective; and (2) various violations of New Jersey
wage and contract law on behalf of themselves and a putative class
under Federal Rule of Civil Procedure 23.
On July 19, 2019, the Plaintiffs filed a motion for conditional
certification and court-authorized notice to potential collective
members. The Defendant opposed the Plaintiffs' motion.
The Plaintiffs move for conditional certification of a collective
of all current and former hourly at-home Customer Service
Representatives who worked for Defendant Intelenet America, LLC at
any time within three years from the date this lawsuit was filed
through judgment.
Judge Arleo finds that the Plaintiffs have satisfied their burden
and will conditionally certify the proposed collective. In support
of their allegations, they have submitted declarations from
themselves and six other current and former at-home CSRs who worked
in Florida, Indiana, and Texas, their deposition transcripts, pay
stubs for the Plaintiffs and four of their declarants from 2018 and
2019, Clark's January 2018 time records, various written policies
of Defendant's, and three emails from Team Leaders and a Learning
Specialist. In view of the "fairly lenient standard" that applies
to motions for conditional certification, the Judge is satisfied
that, based on the present evidentiary record, the Plaintiffs have
made a "modest factual showing" that they and other at-home CSRs
who worked for the Defendant are similarly situated.
In conditionally certifying the collective, the Judge emphasizes
that the sole consequence of conditional certification is the
dissemination of court-approved notice to potential collective
action members. To the extent that the Defendant is concerned
about a collective class that is broader than what is justified by
the evidence, the Court will carefully scrutinize the evidence
before granting final certification of the employees to be
included.
The Plaintiffs request permission to send Court-approved notice by
mail, email, and text message, and have submitted proposed forms of
notice. The Defendant objects to the proposed forms of notice and
requests that resolution of the notice issue be deferred because
the scope of conditional certification granted would inform the
discussion between the parties.
The Judge instructs the parties to meet and confer regarding the
method, timing, and content of any notice, and submit agreed-upon
proposed forms regarding same, to the Hon. Joseph A. Dickson within
15 days of the accompanying Order. The expedited meet-and-confer
schedule will help ensure that potential collective members receive
timely notice.
For the foregoing reasons, Judge Arleo granted the Plaintiffs'
motion to conditionally certify the putative collective. She
directed the parties to meet and confer as to the form of notice.
An appropriate Order follows.
A full-text copy of the Court's Feb. 19, 2020 Opinion is available
at https://is.gd/ZWAeHL from Leagle.com.
JASMINE CLARK & SIMONE LEGREE, individually and on behalf of all
other similarly situated individuals, Plaintiffs, represented by
JASON TRAVIS BROWN -- jtb@jtblawgroup.com -- BROWN, LLC.
INTELENET AMERICA, LLC, doing business as Intelenet Global
Services, Defendant, represented by ANDREW CRAIG KARTER --
andrew.karter@akerman.com -- AKERMAN LLP.
JOHN C. HEATH: Trim and Frey Sue over Unsolicited Telephone Calls
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The case, LUCINE TRIM and ANTHONY FREY, individually and on behalf
of all others similarly situated, Plaintiff v. JOHN C. HEATH,
ATTORNEY AT LAW PC, d/b/a LEXINGTON LAW FIRM, a Utah corporation,
Defendant, Case No. 2:20-cv-02161 (C.D. Cal., March 5, 2020) arises
from Defendant's alleged violation of the Telephone Consumer
Protection Act.
Plaintiffs allege that Defendant has unlawful practice of placing
calls using an "automatic telephone dialing system" or a
pre-recorded voice to the cellphones of consumers nationwide
without their prior express consent in an effort to obtain leads
for its services.
Moreover, due to Defendant's unsolicited telephone calls,
Plaintiffs and the members of the Classes experienced actual harm
and cognizable legal injury such as aggravation and nuisance,
invasions of privacy that result from the receipt of such calls,
and loss of value realized for the monies consumers paid to their
wireless carriers for the receipt of such calls.
Plaintiffs seek to obtain redress for all persons injured by
Defendant's conduct and an award of statutory damages to the
members of the Classes plus court costs and reasonable attorneys'
fees.
John C. Heath, Attorney at Law PC d/b/a Lexington Law Firm is a law
firm located at 360 North Cutler Drive, North Salt Lake, Utah
84054. [BN]
The Plaintiffs are represented by:
Aaron D. Aftergood, Esq.
THE AFTERGOOD LAW FIRM
1880 Century Park East, Suite 200
Los Angeles, CA 90067
Tel: (310)550-5221
Fax: (310)496-2840
Email: aaron@aftergoodesq.com
- and -
Patrick H. Peluso, Esq.
WOODROW & PELUSO, LLC
3900 East Mexico Ave., Suite 300
Denver, CO 80210
Tel: (720)213-0676
Fax: (303)927-0809
Email: ppeluso@woodrowpeluso.com
JOHN L. SULLIVAN: Arbitration Bid Denial in Gotts Labor Suit Upheld
-------------------------------------------------------------------
In the case, MATTHEW GOTTS, Plaintiff and Respondent, v. JOHN L.
SULLIVAN CHEVROLET, INC., et al., Defendants and Appellants, Case
No. C088801 (Cal. App.), Judge Peter A. Krause of the Court of
Appeals of California for the Third District, Placer, affirmed the
trial court's order denying Defendants John L. Sullivan Chevrolet,
Inc., John L. Sullivan, and Steven A. Ruckels' petition to compel
arbitration and stay court proceedings.
Gotts previously worked as a sales associate for Defendant John L.
Sullivan Chevrolet, Inc., an automobile dealership. In August
2018, on behalf of himself and other similarly situated employees,
the Plaintiff sued the Defendants for alleged Labor Code
violations. He alleges that they failed to pay employees for all
regular and overtime hours worked, did not permit employees to take
meal and rest periods, failed to pay employees for missed meal and
rest periods, failed to reimburse employees for business-related
expenses, failed to provide accurate wage statements, and failed to
timely pay all wages owed upon resignation or termination.
The Plaintiff's complaint contains a single cause of action brought
under the Private Attorneys General Act of 2004. For each
enumerated violation, he seeks a civil penalty or, if no civil
penalty is specifically provided, the default civil penalty under
section 2699, subdivision (f).
In October 2018, the Defendants filed a petition to compel
arbitration of the Plaintiff's individual claims for unpaid and
underpaid wages. They argued that the Plaintiff executed multiple
written agreements to submit all employment-related disputes to
binding arbitration. Although they conceded that predispute
agreements to arbitrate PAGA claims are not enforceable, the
Defendants argued that the allegations in the Plaintiff's complaint
go beyond a "true" PAGA claim for civil penalties, seeking recovery
of unpaid wages and other victim-specific relief under sections 558
and 1197.1. Thus, they sought an order compelling him to arbitrate
his individual victim-specific claims for damages and staying the
remainder of the civil action.
The trial court denied the petition. In its ruling, it first
determined that individual claims for relief were not alleged in
the complaint. The court then ruled that arbitration would be
improper even if the Plaintiff were seeking to recover
victim-specific relief as part of his PAGA claim because the
arbitration agreements between the parties expressly exclude PAGA
claims from the scope of arbitration.
On appeal, the Defendants argue that the trial court erred by (1)
determining that the Plaintiff's complaint does not seek recovery
of individual claims for unpaid/underpaid wages under sections 558
and 1197.1, and (2) refusing to compel arbitration of such claims.
Judge Krause disagrees. The dispute in the case essentially
follows the lines of the Esparza-Lawson dispute about whether the
recovery of unpaid wages under section 558 should be considered
part of the "civil penalty" that employees are authorized to
recover on behalf of the state under the PAGA. At the time the
parties filed their briefs, the dispute was unsettled. It is no
longer true. Less than 24 hours after defendants filed their reply
brief, the Supreme Court issued its decision in ZB, N.A. v.
Superior Court. As a result of that decision, it is now
established that the civil penalties a plaintiff may recover under
section 558 (or analogous section 1197.1) do not include
unpaid/underpaid wages. It is fatal to Defendants' arguments on
appeal.
The Plaintiff's complaint alleges a single claim for civil
penalties under the PAGA. The Defendants' petition assumed that
the civil penalties recoverable under sections 558 and 1197.1 may
include unpaid/underpaid wages and sought to compel arbitration of
only those claims. ZB makes clear that the Defendants were
operating under a faulty premise. The Plaintiff cannot recover
unpaid wages under the cause of action alleged in the complaint.
Thus, the trial court did not err by denying the Defendants'
petition to compel arbitration, rules the appeals court.
Judge Krause accordingly affirmed the order denying the petition to
compel arbitration. The Plaintiff will recover his costs on
appeal.
A full-text copy of the Appeals Court's Feb. 19, 2020 Opinion is
available at https://is.gd/6lSVC9 from Leagle.com.
KAISER FOUNDATION: Cal. App. Affirms Andino Class Decertification
-----------------------------------------------------------------
In the case, JOSE F. ANDINO, Plaintiff and Appellant, v. KAISER
FOUNDATION HOSPITALS, Defendant and Respondent, Case No. A153962
(Cal. App.), Judge Robert Clive Jones of the Court of Appeals of
California for the First District, Division Five, affirmed the
trial court's order granting Kaiser's motion to decertify a class
of hourly employees who alleged they were not compensated for all
time worked because the company rounded their time entries.
Kaiser operates hundreds of medical facilities in California. It
employs thousands of hourly employees in numerous positions across
many departments, from pharmacies to landscaping. These employees
clock in and out for shifts and meal periods using a phone-based
timekeeping system. Shift tolerance windows are a feature of the
company's timekeeping system, and the product of negotiation with
employee unions. Shift tolerance windows allow employees to clock
in and out during six-minute windows before and after shift start
and end times; employees who clock in or out during these windows
are paid based on the scheduled shift. For example, an employee
would be considered to have started his shift at 9:00 a.m. as long
as he clocked in between 8:54 a.m. and 9:06 a.m.
There is significant variation in how shift tolerance windows are
implemented across the company, i.e., which phones employees use to
clock in and out, and the proximity from the phones to the
employees' workplace. When work begins and ends also varies from
department to department. In some departments, such as
housekeeping or nursing, work cannot begin until the shift
commences. In certain departments, work winds down before the
shift ends.
The Plaintiff worked at Kaiser for two and a half years. In 2011,
he filed a putative class action lawsuit against Kaiser, alleging
he was underpaid due to the company's practice of rounding time.
The operative second amended complaint alleged several causes of
action, including claims for underpayment of hourly and overtime
wages. As pertinent in the instant, the Plaintiff's theory was
Kaiser allowed and encouraged hourly employees to work during shift
tolerance windows but paid them only for their scheduled shifts.
According to the Plaintiff, the rounding policy benefitted the
company $113 million to the detriment of employees.
The court certified a class of approximately 99,000 current and
former hourly employees over a eight-year, nine-month period,
premised on the predominant issues of (1) whether Kaiser's
timekeeping policy operated as a grace period or a rounding policy,
and (2) if so, whether that policy disproportionately favored
Kaiser. In concluding the predominant question was whether the
timekeeping policy was facially neutral, the court stated
certification of a rounding claim was not contingent on a showing
by the Plaintiff that the putative class members were actually
performing work during the clocked-in time that was deleted for pay
purposes. The court cautioned, however, that calling class member
by class member at different facilities" could "open the door to
decertifying the class. The Plaintiff's counsel assured the court
to prove their case, they don't need necessarily class members.
The Plaintiff's trial plan urged the court to assume employees were
working during shift tolerance windows, and to require Kaiser to
establish otherwise. According to him, liability was presumptively
established if Kaiser failed to prove employees were not working
during the windows. Kaiser's rounding system violates California's
labor laws. Individualized testimony from class members is simply
not necessary to make the determination.
Kaiser identified several problems with the trial plan. First, it
argued the plan was premised on a misapplication of the law and the
parties' respective burdens of proof. Second, Kaiser argued the
evidence established the timekeeping policy was a grace period, not
a rounding policy. Third, the company highlighted the
individualized inquiries necessary to adjudicate liability,
irrespective of whether the timekeeping system was characterized as
a grace period or a rounding policy.
Kaiser moved to decertify the class, raising arguments similar to
those in its trial plan response. The company argued liability
could not be established on a class-wide basis because the
threshold issue could not be decided without determining whether
employees were working during shift tolerance windows. Kaiser
urged the court not to presume employees were working; to do so,
according to Kaiser, would deny the company due process by
exempting plaintiff and class members from proving they worked
without compensation. The company argued liability was not subject
to common proof because of wide variation in how shift tolerance
windows were implemented.
Relying on the certification order, the Plaintiff argued he did not
have to show class members worked during shift tolerance windows.
In the alternative, he claimed he could establish class members
were working "with common evidence," which included (1) data
showing the timekeeping system deleted more hours than it added;
(2) corporate witness testimony regarding company-wide rounding,
tardiness, and absence policies, including the absence of a policy
prohibiting work during shift tolerance windows; (3) the Plaintiff
and class member testimony that employees worked during shift
tolerance windows; (4) expert testimony regarding the features of
legal timekeeping policies; and (5) expert survey testimony. The
Plaintiff offered declarations from 22 class members who averred
they routinely clocked in before their scheduled shift, that they
performed work before their shift began, and that they were not
told they could not work before their shift start time.
The court granted Kaiser's motion to decertify the class,
concluding the Plaintiff's trial plan was unmanageable. First, the
court determined the Plaintiff erred by relying on the statement in
the certification order that he need not show class members were
working during shift tolerance windows. Next, the court concluded
the Plaintiff's method for establishing liability necessitated
individualized evidence on what the class members were doing during
the shift tolerance windows.
Judge Jones affirmed. He finds that the lower court decertified
the class because it determined individual issues were
unmanageable. It did not, as the Plaintiff claims, impose an
"incorrect standard" when decertifying the class, and the Judge
rejects the Plaintiff's characterization of the court's ruling as
requiring the Plaintif to proffer individualized evidence. The
court considered the evidence offered by both parties and concluded
the Plaintiff offered no manageable way of answering the essential
question of what employees did during shift tolerance windows. The
court did not err.
Judge Jones also does not believe that the Plaintiff's evidence
undermines the trial court's manageability finding. Relying on
AHMC Healthcare, Inc. v. Superior Court, the Plaintiff suggests
"timekeeping data" is dispositive on the issue of liability,
because employees were 'on the clock' during shift tolerance
windows and were not paid. The Plaintiff's reliance on proposed
survey data does not establish the court's manageability finding
was erroneous. It is not sufficient simply to mention a procedural
tool; the party seeking class certification must explain how the
procedure will effectively manage the issues in question. And the
Plaintiff did not satisfy this burden. He vaguely suggested the
survey would be used as 'an adjunct' to his liability showing, and
he did not explain how the data could be extrapolated to the
remainder of the class.
Judge Jones declines to consider the Plaintiff's argument that the
decertification motion was procedurally improper. Such argument is
not set out under a distinct heading. The Plaintiff's remaining
arguments have been considered and merit no further discussion,
including his argument that the court should have given him an
opportunity to submit a new trial plan rather than decertifying the
class.
Based on the foregoing, Judge Jones affirmed the decertification
order. Kaiser is awarded costs on appeal.
A full-text copy of the Court's Feb. 26, 2020 Opinion is available
at https://is.gd/Ff91IA from Leagle.com.
KARPENISI DO-NUT SHOP: Atemis and Zavala Sue over Unpaid OT Wages
-----------------------------------------------------------------
CONCEPCION ALVARO ATEMIS and MIGUEL ZAVALA, individually and on
behalf of all others similarly situated, Plaintiffs v. KARPENISI
DO-NUT SHOP, INC. d/b/a FAME DINER, MIRIKI LLC, GEORGE KANTLIS,
JOHN KANTLIS, and MARIA TSIAKAS, jointly and severally, Defendants,
Case No. 1:20-cv-01200 (E.D.N.Y., March 4, 2020) is a class and
collective action complaint brought against Defendants for their
alleged violations of the Fair Labor Standards Act and the New York
Labor Law.
According to the complaint, Plaintiffs and other non-exempt
employees of Defendants, who are former line cooks, waiters, and
dishwashers at Defendants' diner located in Maspeth, New York,
County of Queens, were either paid a fixed salary or on an hourly
basis with no overtime premiums for hours worked over 40 in a given
workweek.
Plaintiff further claims that Defendants did not pay them
spread-of-hours premiums and failed to provide proper wage notices
and wage statements pursuant to NYLL.
Plaintiffs seek to recover overtime premium pay owed to them
pursuant to FLSA and NYLL.
George Kantlis, John Kantlis, and Maria Tsiakas are active owners
and operators of the Corporate Defendants.
Karpenisi Do-Nut Shop, Inc. d/b/a as Fame Diner, and Mariki LLC are
corporate donut shops that serve meals. [BN]
The Plaintiffs are represented by:
Brent E. Pelton, Esq.
Taylor B. Graham, Esq.
PELTON GRAHAM LLC
111 Broadway, Suite 1503
New York, NY 10006
Tel: (212)385-9700
Fax: (212)385-0800
Emails: Pelton@PeltonGraham.com
Graham@PeltonGraham.com
L'OREAL USA: Prelim Approval of Settlement in Conti Suit Denied
---------------------------------------------------------------
In the case, ANGELA CONTI and JUSTINE MORA, individuals, on behalf
of themselves, and on behalf of all persons similarly situated
Plaintiffs, v. L'OREAL USA S/D, INC., a Corporation Defendant, Case
No. 1:19-cv-00769-NONE-SKO (E.D. Cal.), Judge Dale A. Drozd of the
U.S. District Court for the Eastern District of California denied
without prejudice the Plaintiffs' motion for preliminary approval
of a class action settlement.
The Plaintiffs bring the putative class action against the
Defendant for alleged violations of California Labor Code Sections
201, 202, 203, 226, 226.3, 226.7, 510, and 512, California Business
& Professions Code Section 17200, the California Private Attorneys
General Act, and the Fair Labor Standards Act. The Plaintiffs
filed a motion for preliminary approval of a class action
settlement, which defendant did not oppose. The Court referred the
matter to the assigned magistrate judge pursuant to 28 U.S.C.
Section 636 and Local Rules 302 and 304 for issuance of findings
and recommendations.
On Jan. 27, 2020, the magistrate judge issued findings and
recommendations in which it was recommended that the Court denies
the motion without prejudice to the Plaintiffs renewing the motion
to address the issues and concerns identified therein. The
magistrate judge recommended denial based upon the finding that the
proposed class did not meet the requirements for class
certification under Federal Rule of Civil Procedure 23, and because
the Plaintiffs had failed to demonstrate that the settlement was
fair, reasonable, and adequate, among other noted deficiencies.
The Plaintiffs allege various labor violations, including that the
Defendant required putative class member employees to work overtime
off the clock and to clock out for meal breaks and at the end of
shifts even though they were thereafter required submit to "loss
prevention inspections." Yet, as the magistrate judge noted, the
Plaintiffs have submitted no evidence demonstrating the existence
of employment practices or policies common to all putative members
of the settlement class.
The findings and recommendations were served on the parties and
contained notice that objections thereto were to be filed within 21
days. No objections were filed.
In accordance with the provisions of 28 U.S.C. Section
636(b)(1)(C), having reviewed the entire file de novo, Judge Drozd
finds that the findings and recommendations are supported by the
record and proper analysis. Accordingly, he adopted in full the
findings and recommendations filed Jan. 27, 2020. The Plaintiffs'
motion for preliminary approval of a class action settlement is
denied without prejudice.
A full-text copy of the Court's Feb. 19, 2020 Order is available at
https://is.gd/mMoLxU from Leagle.com.
Angela Conti, individuals, on behalf of themselves, and on behalf
of all persons similarly situated & Justine Mora, individuals, on
behalf of themselves, and on behalf of all persons similarly
situated, Plaintiffs, represented by Aparajit Bhowmik --
aj@bamlawlj.com -- Blumenthal, Nordrehaug & Bhowmik, Kyle R.
Nordrehaug -- kyle@bamlawca.com -- Blumenthal Nordrehaug and
Bhowmik & Norman Blumenthal -- NORM@BAMLAWCA.COM -- Blumenthal
Nordrehaug & Bhowmik, LLP.
L'Oreal USA S/D, Inc., a Corporation, Defendant, represented by
Irene Vera Fitzgerald -- ifitzgerald@littler.com -- Littler
Mendelson, P.C. & Angela Joy Rafoth -- arafoth@littler.com --
LIttler Mendelson, PC.
LAWRENCE EQUIPMENT: Arbitration Award Ruling in Rodriguez Upheld
----------------------------------------------------------------
In the case, JULIAN RODRIGUEZ, Plaintiff and Appellant, v. LAWRENCE
EQUIPMENT, INC., Defendant and Respondent, Case No. B291180 (Cal.
App.), Judge Luis A. Lavin of the Court of Appeals of California
for the Second District, Division Three, affirmed the judgment
confirming an arbitration award entered in favor of Lawrence.
Lawrence is a machine manufacturing company based in Los Angeles.
It manufactures "flat bread machinery" in the United States and
Europe. Rodriguez started working for Lawrence as an hourly
machine operator in April 1999. Rodriguez usually worked five or
six days a week, from 6:00 a.m. until 3:30 p.m. Lawrence required
its employees, including Rodriguez, to take a 20-minute paid rest
break at 10:00 a.m. and a 40-minute break at 1:00 p.m., which
consisted of a 30-minute unpaid meal break and a 10-minute paid
rest break. Lawrence prohibited its employees from taking their
breaks at any other times.
In July 2014, Rodriguez signed an acknowledgment included in
Lawrence's employee manual. The acknowledgment contained an
arbitration agreement, which provided that any dispute between
Lawrence and Rodriguez that is in any way related to the employment
of Rodriguez will be submitted to arbitration before the American
Arbitration Association or any other individual or organization on
which the parties agree or which a court may appoint.
In July 2015, Lawrence issued a new employee manual. The new
manual included a revised arbitration agreement, which provided
that any employment-related dispute between an employee and
Lawrence would be subject to final and binding arbitration pursuant
to the provisions of the Federal Arbitration Act. Rodriguez never
signed the revised arbitration provision or any acknowledgment that
he had received the new employee manual because he was out of work
on a medical leave of absence and had a recently signed arbitration
policy in his file.
Lawrence terminated Rodriguez's employment in late October 2015.
In December 2015, Rodriguez filed a class action lawsuit against
Lawrence. The operative first amended complaint alleged eight
causes of action: (1) failure to pay wages for all time worked in
violation of Labor Code sections 1194 and 1197; (2) failure to pay
overtime wages in violation of Labor Code sections 510, 1194, and
1198; (3) failure to pay wages for inadequate meal breaks in
violation of Labor Code sections 226.7 and 512; (4) failure to
provide adequate rest breaks in violation of Labor Code section
226.7; (5) failure to provide complete and accurate wage statements
in violation of Labor Code section 226; (6) failure to pay all
earned wages at time of separation of employment in violation of
Labor Code sections 201, 202, and 203; (7) unfair business
practices in violation of Business and Professions Code section
17200 et seq.; and (8) a claim for civil penalties and wages under
the Private Attorneys General Act ("PAGA").
In May 2016, Lawrence filed a motion to compel arbitration of the
allegations in the first seven causes of action, to dismiss
Rodriguez's class claims, and to stay the eighth cause of action --
i.e., the PAGA claim —until arbitration was resolved. Lawrence
argued, among other things, that Rodriguez was required to
arbitrate his claims pursuant to the Arbitration Agreement that he
signed in July 2014.
In July 2016, the court granted Lawrence's motion and ordered the
parties to arbitrate the allegations in the first seven causes of
action. The court also dismissed Rodriguez's class claims and
stayed the PAGA claim pending resolution of the arbitration.
In early February 2018, the parties participated in a two-day
arbitration hearing. At the hearing, Rodriguez claimed Lawrence
violated the Labor Code and the Industrial Wage Commission's Wage
Order 4-2001 when it failed to: (1) pay Rodriguez for all regular
and overtime hours that he worked; (2) provide Rodriguez legally
compliant meal and rest breaks; (3) compensate Rodriguez for each
day that he was not provided a legally compliant meal or rest
break; (4) timely pay Rodriguez all outstanding wages at the time
of his termination; and (5) provide Rodriguez accurate wage
statements. Rodriguez also claimed Lawrence's Labor Code
violations constituted unfair business practices under the Business
and Professions Code.
On Feb. 12, 2018, the arbitrator issued a written award in favor of
Lawrence. The arbitrator found Lawrence did not fail to pay
Rodriguez for any wages that he had earned. The arbitrator also
found Lawrence did not schedule Rodriguez's meal and rest breaks in
an unlawful manner.
In March 2018, Rodriguez filed a motion to vacate the Award. In
April 2018, Lawrence filed a petition to confirm the Award as well
as an opposition to Rodriguez's motion to vacate.
In May 2018, the court granted Lawrence's petition to confirm the
Award and denied Rodriguez's motion to vacate. The court found the
Arbitration Agreement was governed by the FAA because Rodriguez's
employment involved interstate commerce and, as a result, the Award
was not subject to expanded judicial review for errors of law or
fact. Alternatively, it concluded that even if the Arbitration
Agreement was governed by California law, the language in the
agreement providing for "limited review" of the Award did not
expand the scope of the court's review beyond the grounds
identified in sections 1286.2 and 1286.6. The court also rejected
Rodriguez's argument that the nature of his claims challenging the
manner in which Lawrence scheduled its meal and rest breaks
entitled him to expanded judicial review of the arbitrator's
decision.
In June 2018, the court entered judgment on the first seven causes
of action in Lawrence's favor. Rodriguez appeals.
On appeal, Rodriguez contends the court erred when it denied his
motion to vacate the Award. Specifically, Rodriguez argues the
court should have reviewed the merits of the arbitrator's decision
because the Arbitration Agreement expressly permits limited
judicial review of any award to determine whether the arbitrator
"complied with statutory law," which Rodriguez insists includes
substantive wage-and-hour laws. Alternatively, he argues the court
should have reviewed the merits of the Award because his
wage-and-hour claims implicate "unwaivable statutory rights"
entitled to expanded judicial review. Finally, Rodriguez urges us
to vacate the Award because the arbitrator failed to properly apply
California's wage-and-hour laws to his claims.
Judge Lavin holds that the court correctly declined to review the
merits of the Award. He concludes that the language of the
Arbitration Agreement in the case does not explicitly authorize
expanded judicial review of the Award for errors of law or fact.
Rodriguez is not entitled to expanded judicial review of the Award
for legal or factual errors simply because that decision resolves
his statutory claims under California's wage-and-hour laws.
Because Rodriguez does not challenge the Award on any of the
grounds authorized by the CAA, the court did not err when it
confirmed the Award.
The judgment is affirmed. Lawrence will recover its costs on
appeal.
A full-text copy of the Court's Feb. 26, 2020 Opinion is available
at https://is.gd/Az1fWT from Leagle.com.
Levi & Ebrahimian, Joseph Lavi and Jordan D. Bello for Plaintiff
and Appellant.
Lewis Brisbois Bisgaard & Smith, Raul L. Martinez --
Raul.Martinez@lewisbrisbois.com -- and John Haubrich, Jr. --
John.Haubrich@lewisbrisbois.com -- for Defendant and Respondent
LEGEND ENERGY: Baswell Seeks Unpaid Back Wages and OT Pay
---------------------------------------------------------
TANDY BASWELL, individually and on behalf of all others similarly
situated, Plaintiff v. LEGEND ENERGY GROUP, LLC, Defendant, Case
No. 7:20-cv-00055 (W.D. Tex., March 4, 2020) is a collective action
complaint brought against Defendant for its alleged violation of
the Fair Labor Standards Act and the New Mexico Minimum Wage Act.
Plaintiff worked for Defendant as a Torque Hand in Texas and New
Mexico from approximately July 2019 until September 2019, and was
paid $300 per day worked plus an hourly rate of $15.00 per hour for
each hour worked over 24-hours in a single shift.
According to the complaint, Plaintiff did not receive overtime
compensation at the required rate of time-and-one-half for all
hours worked over 40 each workweek. Allegedly, Defendant set its
workers' rate of pay and controlled the number of hours they
worked, and improperly classified Plaintiff and the Putative Class
Members as independent contractors.
Plaintiff seeks to recover unpaid back wages, overtime
compensation, liquidated damages, and other applicable penalties
pursuant to the FLSA.
Legend Energy Group, LLC is an oilfield service company and
provides services for its clients in the oil and gas industry
throughout Texas, Louisiana, and New Mexico. [BN]
The Plaintiff is represented by:
Clif Alexander, Esq.
Lauren E. Braddy, Esq.
ANDERSON ALEXANDER, PLLC
819 N. Upper Broadway
Corpus Christi, TX 78401
Tel: (361)452-1279
Fax: (361)452-1284
Emails: clif@a2xlaw.com
lauren@a2xlaw.com
LEGENDS HOSPITALITY: Contreras Seeks to Recover Withheld Gratuities
-------------------------------------------------------------------
Alejandro Contreras, individually and on behalf of others similarly
situated, Plaintiffs, v. Legends Hospitality, LLC, Legends Hosp.
Holding Co., LLC, YGE Legends Holdings, LLC, New Mountain Partner
IV, Daniel E. Smith, Martin J. Greenspun and any other related
entities, Defendants, Case No. 151253/2020, (N.Y. Sup., February 4,
2020), seeks to recover unlawfully retained tips and gratuities
owed under New York Labor Law and New York Codes, Rules and
Regulations.
Defendants operate a catering business in New York City where
Contreras was employed as catering service staff. Defendants charge
clients 20% in connection with the administration of catered
events. Plaintiffs claim that this amount is a form of a gratuity
that should be distributed amongst the wait staff. [BN]
Plaintiff is represented by:
Jeffrey K. Brown, Esq.
Suzanne Leeds Klein, Esq.
LEEDS BROWN LAW, P.C.
One Old Country Road, Suite 347
Carle Place, NY 11514
Tel: (516) 873-9550
Email: sleeds@leedsbrownlaw.com
LOT 74 REALTY: Overcharges Tenants, Martinez and Canela Claim
-------------------------------------------------------------
The case, DANIEL MARTINEZ and VITORIA CANELA, on behalf of
themselves and others similarly-situated, Plaintiffs v. ALFONSO
DEJESUS; RUBY ECHEVARRIA; LOT 74 REALTY LLC, Defendants, Case No.
651436 (N.Y. Sup. Ct., March 3, 2020), arises from Defendants'
alleged decades-long violation of New York's Rent Stabilization
Laws.
According to the complaint, Defendants have systematically violated
Rent Stabilization Law obligations for the Aqueduct Avenue Building
and reaped the rewards of tax benefits available through New York's
J-51 exemption programs for decades by failing to register the
rents of the building; permanently removing apartments from the
rent stabilized stock; neglecting to provide notice of the
building's rent-stabilized status; and overcharging the tenants,
including Plaintiffs, of the rent-regulated units hundreds of
thousands of dollars.
J-51 provides a tax exemption for certain qualifying properties to
(i) encourage constructing, renovating, and maintaining affordable
housing and (ii) protect senior citizens living on fixed incomes
against rent increases.
Plaintiffs seek to recover monetary damages from Defendants based
on the unlawful overcharges, and other appropriate injunctive
relief, costs and expenses.
Alfonso DeJesus and Ruby Echevarria are agents of Lot 74 Realty.
Lot 74 Realty LLC, the landlord of residential building 2523-2525
Aqueduct Avenue, Bronx New York 10468. [BN]
The Plaintiffs are represented by:
Zoe Kheyman, Esq.
Jessica Bellinder, Esq.
Robert Desir, Esq.
LEGAL AID SOCIETY
260 East 161st Street, 8th Floor
Bronx, NY 10451
Tel: (646)689-5138
Emails: zkheyman@legal-aid.org
jxbellinder@legal-aid.org
rrdesir@legal-aid.org
- and -
William J. Sushon, Esq.
Will C. Autz, Esq.
Lauren M. Wagner, Esq.
Alec Schierenbeck, Esq.
O'MELVENY & MEYERS LLP
7 Times Square
New York, NY 10036
Tel: (212)326-2000
Emails: wsushon@omm.com
wautz@omm.com
lwagner@omm.com
aschierenbeck@omm.com
eevans@omm.com
MARY JANE ELLIOTT: Sixth Cir. Flips Dismissal of Vanderkodde Suit
-----------------------------------------------------------------
The U.S. Court of Appeals for the Sixth Circuit reversed the
district court's judgment dismissing the cases, DANIEL VANDERKODDE;
SUSAN BUCK; RUBY RoBINSON; ANITA BECKLEY; RITCHIE SWAGERTY, on
behalf of themselves and all others similarly situated,
Plaintiffs-Appellants/Cross-Appellees (19-1091/1127/1128), v. MARY
JANE M. ELLIOTT, P.C. (19-1091/1127); BERNDT & ASSOCIATES, P.C.
(19-1091/1128), Defendants-Appellees/Cross-Appellants, LVNV
FUNDING, LLC; MIDLAND FUNDING, LLC; MIDLAND CREDIT MANAGEMENT,
INC.; ENCORE CAPITAL GROUP, INC., Defendants-Appellees (19-1091),
Case Nos. 19-1091, 19-1127, 19-1128 (6th Cir.).
In Exxon Mobil Corp. v. Saudi Basic Industries Corp., the Supreme
Court made clear that the Rooker-Feldman doctrine -- which
prohibits the lower federal courts from reviewing appeals of
state-court decisions -- applies only to an exceedingly narrow set
of cases. The putative class action brought under the Fair Debt
Collection Practices Act and Michigan consumer laws is not the rare
one that threads the Rooker-Feldman needle.
The Plaintiffs are consumers who held credit accounts with various
financial institutions and later defaulted on their debts.
Defendants LVNV Funding, LLC and Midland Funding, LLC bought these
debts and hired defendant Mary Jane M. Elliott, P.C., a law firm,
to represent them in collection proceedings. In five separate
actions, Elliott filed complaints and supporting affidavits in
Michigan state court against plaintiffs on LVNV's or Midland
Funding's behalf. Each suit resulted in a judgment against the
debtor -- by default in Buck's, Robinson's, and Swagerty's cases,
and by consent in Beckley's and VanderKodde's.
After obtaining a court judgment against a debtor, a "judgment
creditor" may resort to garnishment "to intercept the debtor's
income at its source (say from the debtor's employer) rather than
trying to collect from the debtor herself. Following this roadmap,
the Defendants filed multiple requests and writs for garnishment in
state court for each judgment debtor. At this stage, Defendant
Berndt & Associates, P.C., a law firm, represented LVNV in
plaintiff Swagerty's case, while Elliott remained counsel in the
other cases. None of the judgment debtors (i.e., the Plaintiffs in
the case) objected to any of the writs within the 14-day window for
doing so.
The case concerns the rate of post-judgment interest used in
creating the writ-of-garnishment requests. Michigan law provides
specific methods for calculating judgment interest. In many cases,
including this one, it is calculated on the entire amount of the
money judgment, including attorney fees and other costs, using the
following method: "Interest on a money judgment recovered in a
civil action is calculated at 6-month intervals from the date of
filing the complaint at a rate of interest equal to 1% plus the
average interest rate paid at auctions of 5-year United States
treasury notes during the 6 months immediately preceding July 1 and
January 1, as certified by the state treasurer, and compounded
annually, according to this section."
In the writs of garnishment in the case, the outstanding amounts of
the Plaintiffs' debts were calculated using the much higher
post-judgment rate of 13%. It is the maximum interest rate allowed
for a judgment rendered on a written instrument evidencing
indebtedness with a specified or variable interest rate. But the
underlying judgments were not so rendered. The three default
judgments specify that they are not based on a note or other
written evidence of indebtedness, and none of the judgments include
any supporting written instrument. So, the Plaintiffs allege, use
of the 13% rate was improper under Michigan law.
The Plaintiffs claim that Defendants' use of the impermissibly high
interest rate in the writs of garnishment led to the Defendants (1)
falsely communicating that the Plaintiffs owed more money than they
actually did and (2) collecting (and attempting to collect) more
money from them than the law allowed. Both of these actions
allegedly violate the Fair Debt Collection Practices Act ("FDCPA"),
which prohibits debt collectors from employing false, deceptive, or
misleading' practices. Seeking to represent thousands of Michigan
consumers, the Plaintiffs brought suit in the U.S. District Court
for the Western District of Michigan, alleging violations of the
FDCPA; the Michigan Collection Practices Act, and the Michigan
Occupational Code.
Elliott and Berndt filed motions to dismiss the claims against them
pursuant to Federal Rule of Civil Procedure 12(b)(1). The district
court granted their motions and dismissed the claims for lack of
subject-matter jurisdiction. The Plaintiffs' lawsuit, the district
court said, amounted to an appeal of the judgments and writs of
garnishment in the state-court collection proceedings, and such
appeals are barred under the Rooker-Feldman doctrine. F ollowing
Elliott and Berndt's lead, the remaining Defendants also filed a
motion to dismiss, arguing that Rooker-Feldman barred the claims
against them, too. The district court granted that motion in a
short order, relying on the reasoning in its previous dismissal
order, and entered judgment.
The Plaintiffs timely appealed. Elliott and Berndt filed
cross-appeals raising statute-of-limitations defenses.
The Sixth Circuit determines whether Rooker-Feldman bars a claim by
looking to the source of the injury the Plaintiff alleges in the
federal complaint. Faced with the defendants' jurisdictional
challenge under Rooker-Feldman, the Sixth Circuit holds that the
doctrine did not apply for two reasons. First, Rooker-Feldman
applies only when a state court renders a judgment -- when the
court investigates, declares, and enforces liabilities based on
application of law to fact. Second, the Plaintiff's injuries
stemmed not from the writs of garnishment themselves, but rather
the costs included in them. Thus, the Sixth Circuit finds that
that Rooker-Feldman does not apply because the Plaintiff's injuries
stemmed from the Defendant's conduct, not the state-court judgment,
as the Plaintiff claimed he was injured by the Defendant when it
filed a false affidavit.
Next, the Sixth Circuit finds that the Plaintiffs did not raise any
objections in state court, either. The district court stated that
applying Rooker-Feldman made "intuitive sense" because where
parties are afforded an opportunity to challenge the amount of
money that will be garnished, they should do so, instead of sitting
on their hands and later suing in federal court. It is a valid
concern, but not under Rooker-Feldman. Other doctrines, like res
judicata, collateral estoppel, and forfeiture can discourage
strategic sandbagging in litigation. Rooker-Feldman's focus lies
elsewhere. Because Rooker-Feldman does not apply, the Sixth
Circuit reverses the district court's dismissal for lack of
subject-matter jurisdiction.
Finally, the Defendants raise several alternate grounds on which to
affirm the district court's dismissal of the case, including
standing, "comity," and the statute of limitations (which Elliott
and Berndt raise in their cross-appeals). But the district court
did not address any of them. Because it is "a court of review, not
of first view," the Sixth Circuit remands the case to the district
court to resolve these issues in the first instance.
For the reasons discussed, the Sixth Circuit reversed the district
court's judgment, dismissed the cross-appeals, and remanded for
further proceedings consistent with his Opinion.
A full-text copy of the Sixth Circuit's Feb. 26, 2020 Opinion is
available at https://is.gd/kNu9pT from Leagle.com.
ARGUED: Theodore J. Westbrook -- twestbrook@westbrook-law.net --
WESTBROOK LAW PLLC, Grand Rapids, Michigan, for Daniel VanderKodde,
Susan Buck, Ruby Robinson, Anita Beckley, and Ritchie Swagerty.
Michael J. Cook -- michael.cook@ceflawyers.com -- COLLINS EINHORN
FARRELL PC, Southfield, Michigan for Mary Jane M. Elliott, P.C. C.
Thomas Ludden, LIPSON NEILSON P.C., Bloomfield Hills, Michigan, for
Berndt & Associates, P.C. Theodore W. Seitz -- tseitz@dykema.com --
DYKEMA GOSSETT PLLC, Lansing, Michigan, for Midland Funding, LLC,
Midland Credit Management, Inc., and Encore Capital Group, Inc.
ON BRIEF: Theodore J. Westbrook, WESTBROOK LAW PLLC, Grand Rapids,
Michigan, Phillip C. Rogers, Kevin J. Rogers, LAW OFFICE OF PHILLIP
C. ROGERS, Grand Rapids, Michigan, for Daniel VanderKodde, Susan
Buck, Ruby Robinson, Anita Beckley, and Ritchie Swagerty.
Michael J. Cook, COLLINS EINHORN FARRELL PC, Southfield, Michigan
for Mary Jane M. Elliott, P.C. C. Thomas Ludden, Karen A. Smyth --
ksmyth@lipsonneilson.com -- LIPSON NEILSON P.C., Bloomfield Hills,
Michigan, for Berndt & Associates, P.C. Theodore W. Seitz, DYKEMA
GOSSETT PLLC, Lansing, Michigan, for Midland Funding, LLC, Midland
Credit Management, Inc., and Encore Capital Group, Inc. Nabil G.
Foster -- nfoster@hinshawlaw.com -- HINSHAW & CULBERTSON LLP,
Chicago, Illinois, for LVNV Funding, LLC.
MAXIM HEALTHCARE: 10th Circuit Flips Final Judgment in Jordan Suit
------------------------------------------------------------------
In the case, THERESA JORDAN, individually and on behalf of the
Proposed Colorado Rule 23 Class, Plaintiff-Appellee, v. MAXIM
HEALTHCARE SERVICES, INC., Defendant-Appellant, Case No. 18-1290
(10th Cir.), the U.S. Court of Appeals for the Tenth Circuit
reversed the district court's final judgment, vacated the award of
$2,015,253.42 in overtime wages and $691,474.20 in prejudgment
interest, and remanded the case to the district court with
instructions to enter judgment in Maxim's favor.
Under Colorado law, employers generally must pay all employees
time-and-a-half wages for overtime hours. That said, the law
carves out several express exemptions from thi srequirement.
Specifically, employers need not pay overtime wages to companions,
casual babysitters, and domestic employees employed by households
or family members to perform duties in private residences.
Maxim is a for-profit staffing company that provides customers with
in-home care. Jordan worked for Maxim in Colorado as a home
health-care worker. The parties do not dispute that in that
capacity, Ms. Jordan and other similarly situated Maxim employees
were "companions" under Colorado law, and Maxim concedes that it
did not pay Ms. Jordan or its other "companions" time-and-a-half
wages for overtime hours from 2012 through 2015. Ms. Jordan, on
behalf of a class of Maxim companions, argues that the failure
violated Colorado law.
Ms. Jordan filed the putative class action in state court in May
2015. She alleged that Maxim violated Colorado law by refusing to
pay her and other Maxim companions overtime wages as required by
section 4 of the Wage Order. Maxim removed the suit to federal
court.
Once in federal court, Ms. Jordan moved for partial summary
judgment as to Maxim's liability. In her motion, she argued that
under the plain language of the companionship exemption, only those
companions who were employed by households or family members were
exempt from the Wage Order's overtime-pay requirement. She also
pointed out that neither party disputed that Maxim was a
third-party employer, that Ms. Jordan and the other class members
were "companions" under Colorado law, and that Maxim had not paid
Ms. Jordan or its other companions overtime wages from 2012 through
2015. Thus, Ms. Jordan reasoned, Maxim had improperly relied on
the companionship exemption in denying Ms. Jordan and the other
Maxim companions overtime wages, thereby rendering Maxim liable for
all unpaid overtime for the relevant period and entitling Ms.
Jordan to summary judgment against Maxim.
Maxim cross-moved for summary judgment. It argued that the
household modifier (i.e., the phrase, "employed by households or
family members to perform duties in private residences") applied
only to "domestic employees" and not to "companions" or "casual
babysitters." In other words, according to Maxim, the
companionship exemption extended to all companions -- including
those employed by third-party employers. On that reading, Maxim
concluded that, as a third-party employer, it had no duty to pay
Ms. Jordan or the class of Maxim companions overtime wages.
The district court sided with Ms. Jordan, adopting in all relevant
respects her reading of the companionship exemption. It reasoned
that under its plain language, the exemption applied only to
companions who were employed by households or family members, and
thus did not apply to employees working for third-party employers
such as Maxim. For that reason, the court granted Ms. Jordan's
summary-judgment motion in relevant part, and entered final
judgment against Maxim and in favor of Ms. Jordan.
Maxim now appeals from that judgment. It presents one question for
the Court's review: Did the district court err in concluding that
third-party employers are precluded from invoking the companionship
exemption? Put differently, does the companionship exemption apply
to companions working for third-party employers, and not just to
those working for households or family members? The question
before the Court is whether "companions" working for third-party
employers -- rather than for households or family members -- fall
within the companionship exemption.
Applying Colorado's interpretive rules, the 10th Circuit first
looks to whether the enacting body's intent is clear from the
regulation's text and context. The enacting body is the Division,
and the relevant text is the companionship exemption. The
companionship exemption is ambiguous. And although the Court
believes that the ordinary and particular meanings of the relevant
terms suggest that the Division intended the companionship
exemption to apply to companions employed by third-party employers
(such as Maxim), that suggestion is not so strong as to render the
exemption unambiguous.
The 10th Circuit holds that the companionship exemption is
ambiguous. One plausible reading is that the exemption applies to
all companions. Or it could be read as applying to only those
companions "employed by households or family members to perform
duties in private residences." Nonetheless, the 10th Circuit
concludes that the ordinary and particular meanings of
"companions," "casual babysitters," and "domestic employees"
suggest that the Division intended the former reading. That
suggestion, however, is not so strong as to make the Division's
intent "clear." Consequently, 10th Circuit may "look to other aids
in construction" to pin down the proper scope of the companionship
exemption.
The 10th Circuit imparts that the companionship exemption is
ambiguous but that the ordinary and particular meanings of
"companions," "casual babysitters," and "domestic employees," along
with other tools of construction, compel the conclusion that the
companionship exemption applies to all companions—irrespective of
whether their employers are households or family members on the one
hand, or third-party companies, like Maxim, on the other. But the
Court finds persuasive support for his conclusion in the Division's
longstanding and consistent interpretation of the companionship
exemption. An examination of that interpretation therefore
follows.
Finally, the 10th Circuit holds that the Division's longstanding
and consistent interpretation of the companionship exemption as
applying to companions employed by third-party employers
persuasive. This persuasive authority gives him greater confidence
in his conclusion -- reached through our analysis of the ordinary
and particular meanings of the relevant terms and application of
other aids of construction -- that Maxim's reading of the
companionship exemption is the superior one. The 10th Circuit,
therefore, holds that the companionship exemption applies to
companions employed by third-party employers.
To conclude, as companions employed by a third-party employer, Ms.
Jordan and her fellow class members fall within the companionship
exemption. As a result, they are not entitled to overtime wages
under Colorado law. For that reason, the 10th Circuit reversed the
district court's final judgment, vacated the award of $2,015,253.42
in overtime wages and $691,474.20 in prejudgment interest, and
remanded the case to the district court with instructions to enter
judgment in Maxim's favor.
A full-text copy of the 10th Circuit's Feb. 19, 2020 Order is
available at https://is.gd/5eKGUs from Leagle.com.
Theresa Jordan, Plaintiff, represented by Gurdip S. Atwal --
tatwal@johnsonbecker.com -- Jacob Robert Rusch --
jrusch@johnsonbecker.com -- at Johnson Becker, PLLC; Neil B. Pioch
-- NPioch@sommerspc.com -- at Sommers Schwartz, PC; Robert Eugene
DeRose, II -- bderose@barkanmeizlish.com -- Robi J. Baishnab --
rbaishnab@barkanmeizlish.com -- at Barkan Meizlish Handelman
Goodin DeRose Wentz, LLP
Maxim Healthcare Services, Inc., Defendant, represented by Amanda
Colette Dupree -- amanda.dupree@morganlewis.com -- Andrew George
Sakallaris -- andrew.sakallaris@morganlewis.com -- Matthew James
Sharbaugh -- matthew.sharbaugh@morganlewis.com -- Thomas F. Hurka
-- thomas.hurka@morganlewis.com -- at Morgan Lewis & Bockius, LLP;
Joseph L. Lambert -- joseph.lambert@hoganlovells.com -- Erin Lynn
Sokol -- erin.sokol@hoganlovells.com -- at Hogan Lovells US LLP
MDL 2047: Taishan Settlement in Drywall Suit Has Final Approval
---------------------------------------------------------------
In the case, IN RE: CHINESE-MANUFACTURED DRYWALL PRODUCTS LIABILITY
LITIGATION THIS DOCUMENT RELATES TO: ALL CASES, SECTION "L"(5)
(Except The Mitchell Co., Inc. v. Knauf Gips KG, et al., Civil
Action No. 09-4115 (E.D. La.)), Civil Action MDL No. 2047 (E.D.
La.), Judge Eldon E. Fallon of the U.S. District Court for the
Eastern District of Louisiana (i) granted the Settlement Class
Counsel's Motion for Entry of an Order and Judgment (1) Granting
Final Approval of the Class Settlement with Taishan and (2)
Certifying the Settlement Class; and (ii) granted in part the
Settlement Class Counsel's Motion for an Award of Attorneys' Fees
and Cost Reimbursements for Common Benefit Counsel and Individually
Retained Attorneys.
From 2004 through 2006, the housing boom in Florida and rebuilding
efforts necessitated by Hurricanes Rita and Katrina led to a
shortage of construction materials, including drywall. As a
result, drywall manufactured in China was brought into the United
States and used to construct and refurbish homes in coastal areas
of the country, notably the Gulf Coast and East Coast. Sometime
after the installation of the Chinese drywall, homeowners began to
complain of emissions of foul-smelling gas, the corrosion and
blackening of metal wiring, surfaces, and objects, and the breaking
down of appliances and electrical devices in their homes.
In an attempt to recoup their damages, these homeowners began to
file suit in various state and federal courts against homebuilders,
developers, installers, realtors, brokers, suppliers, importers,
exporters, distributors, and manufacturers who were involved with
the Chinese drywall. Because of the commonality of facts in the
various cases, the litigation was designated as a multidistrict
litigation. Pursuant to a Transfer Order from the United States
Judicial Panel on Multidistrict Litigation on June 15, 2009, all
federal cases involving Chinese drywall were transferred and
consolidated for pretrial proceedings in MDL 09-2047 before the
Louisiana District Court.
The Chinese drywall at issue was largely manufactured by two groups
of Defendants: (1) the Knauf Entities and (2) the Taishan Entities.
The litigation has focused upon these two entities and their
downstream associates and has proceeded on strikingly different
tracks for the claims against each group.
The Knauf Entities are German-based, international manufacturers of
building products, including drywall, whose Chinese subsidiary,
Knauf Plasterboard (Tianjin) Co., Ltd. ("KPT"), advertised and sold
its Chinese drywall in the United States. On Dec. 20, 2011, the
Knauf Entities and the PSC entered into a global, class Settlement
Agreement ("Knauf Settlement Agreement"), which was designed to
resolve all Knauf-related, Chinese drywall claims.
Under the terms of the Knauf Settlement, homeowners had the choice
of a sum certain or having the house totally remediated in addition
to receiving reasonable costs and attorney fees. Furthermore,
after a jury trial in a bellwether case, numerous defendants in the
chain-of-commerce with the Knauf Entities entered into class
settlement agreements, the effect of which settles almost all of
the Knauf Entities' chain-of-commerce litigation. The total amount
of the Knauf Settlement is estimated at $1.1 billion. Although the
Court occasionally has to deal with settlement administration and
enforcement issues, the Knauf portion of the litigation is now
resolved.
The litigation against the Chinese entities has taken a different
course. The Chinese Defendants in the litigation include the
principal Chinese-based Defendant, Taishan, namely, Taishan Gypsum
Co. Ltd. ("TG") and its wholly-owned subsidiary, Taian Taishan
Plasterboard Co., Ltd. ("TTP"). Other Chinese-based Defendants
include the CNBM and BNBM Entities.
A significant development in the Taishan aspect of the litigation
occurred in the spring of 2019. On May 22 and 23, 2019, the
parties underwent mediation with the goal of resolving the entirety
of the Amorin1 and Brooke matters pending in the Eastern District
of Louisiana, the Southern District of Florida, and the Eastern
District of Virginia. On May 23, 2019, the parties agreed to a
Term Sheet, and negotiations continued in person and by telephone
for three months. All matters in the Amorin and Brooke actions
were accordingly stayed by the remand courts and the Louisiana
District Court, pending the execution of a Settlement Agreement
between the parties. The stay was extended several times and
preliminary approval of the Settlement Agreement was granted by the
Court on Aug. 29, 2019.
The proposed Taishan Settlement Agreement is the result of over a
decade of litigation and a complex negotiation process.
Specifically, it obligates Taishan to pay $248 million to fully
resolve all claims of the Amorin class, the Plaintiffs named in the
Brooke complaints, and any other property owners with Chinese
drywall attributable to Taishan ("Absent Class Members"). The
settlement funds are "intended to provide compensation for all
property and remediation damages as well as Other Losses."
Following preliminary approval, the Class Members were able to
access the allocation model on the Settlement website and on the
Court's docket. The parties undertook a significant effort to
notify all the Class Members, including the Absent Class Members,
of the proposed Settlement Agreement. Critically, each known
Class Member was notified of the Settlement by mail and provided
with a gross estimate of their award under the Settlement as
calculated by the allocation model. The Taishan Settlement
Agreement binds all the Class Members save those who formally
opt-out from its terms.
The Taishan Settlement Agreement is a historic achievement. It is,
however, critically different from the Settlement Agreement reached
in the Knauf aspect of the litigation. While the Knauf Settlement
Agreement obligated Knauf to pay a designated amount to cover
reasonable costs and attorney fees for both contract counsel and
common benefit the counsel in addition to completely remediating
the affected properties, the Taishan Settlement Agreement provides
$248 million to resolve all claims and pay all attorney fees and
costs. Taishan is not involved in the allocation of funds.
Therefore, while the Knauf aspect of the litigation required the
Court to fairly allocate designated funds among common benefit
counsel and individually retained attorneys, the Court has a much
more difficult task.
First, the Court must determine what percentage of the total
settlement fund is appropriately allocated to attorney fees and
costs. Second, the Court must determine how to allocate that
amount between common benefit counsel and individually retained
attorneys. Third, the Court must individually allocate a specific
portion of those fees to each attorney entitled to such an award.
Furthermore, it is a time sensitive inquiry because the allocation
of attorney fees and costs necessarily reduces the amount of
settlement funds available for distribution to the individual
pPlaintiffs in the matter. The Settlement Class Counsel has
requested an award representing 30% of the aggregate amount of the
Settlement for attorney fees and 3% for costs, totaling $74.4
million in fees and approximately $7,074,830.15 in costs.
The Settlement Class Counsel seeks certification of the Settlement
Class and final approval of the class settlements with Taishan
Gypsum Company Ltd., formerly known as Shandong Taihe Dongxin Co.,
Ltd. and Taian Taishan Plasterboard Co. Ltd. In support of its
motion, the Settlement Class Counsel argues that the settlement is
fair, reasonable, and adequate in light of the specific
requirements of Rule 23(e) and the Fifth Circuit's Reed factors.
Further, the Settlement Class Counsel stresses that notice to the
class complied with due process and that the overwhelming majority
of class members support the settlement.
At the Final Fairness Hearing, the Class Counsel stressed that the
Settlement will provide significant benefits to almost 4,000
Plaintiffs and that the Settlement is an historic and substantial
achievement in light of the procedural posture of the litigation,
factual issues, the challenges of service, jurisdiction, and
appeals, and the significant uncertainty of collecting on a
potential judgment if the case went to trial.
Judge Fallon finds that the proposed Settlement is the product of
an arm's-length negotiation untainted by fraud or collusion.
The Court also finds it reasonable to award $47.12 million to
compensate both the common benefit counsel and the individually
retained attorneys in light of the circumstances in the case,
namely that the case involves property damage claims and that the
attorney fees come out of the overall recovery available to
claimants, unlike in the Knauf Settlement. As previously
mentioned, 60% of the award will compensate the common benefit
counsel, and 40% will compensate the contract counsel. The Court
will determine the appropriate division of the common benefit fee
among those counsel who performed common benefit work at a later
date.
In view of the nature and circumstances of the case, the Court
concludes that an award of $2,836,242.88 is appropriate to cover
the costs and expenses of common benefit counsel. The award is in
addition to the attorney fee award of 19% of $248 million, or
$47.12 million, to cover the fees of both the common benefit and
the contract counsel. Although the total award is less than the
30% sought by Class Counsel, plus 3% for costs, the Court finds
that it strikes a fair balance between the diligent and commendable
effort exerted by the attorneys and the limited funds available to
compensate the Class Members for their property damage.
Finally, the Court agrees that the Priority Plaintiffs, the Select
Claimants, and the Class Representatives have been significantly
involved in the matter to the benefit of the entire class and finds
that an incentive award is justified. However, the Court
recognizes that this Settlement provides a limited fund for
recovery and that any additional award to one claimant necessarily
reduces the available funds for all other claimants. Accordingly,
in the interest of justice and fairness to all the class members,
the Court will award each Priority Plaintiff and Select Claimant an
additional $5,000, and each Class Representative an additional
$2,500.
Considering the foregoing, Judge Fallon granted the Settlement
Class Counsel's Motion for Entry of an Order and Judgment (1)
Granting Final Approval of the Class Settlement with Taishan and
(2) Certifying the Settlement Class. The Taishan Settlement
Agreement is approved.
The Court granted in part the Settlement Class Counsel's Motion for
an Award of Attorneys' Fees and Cost Reimbursements for Common
Benefit Counsel and Individually Retained Attorneys. The Counsel
is awarded 19% of the Settlement funds, or $47.12 million for
attorney fees, for both the common benefit counsel and the contract
counsel. The common benefit counsel are entitled to 60% of the
amount, or $28.272 million, and the contract counsel are entitled
to 40% of the the amount, or $18.848 million. The Common benefit
counsel is also awarded $2,836,242.88 for costs. The allocation of
the contract counsel's fees will be allocated in accordance with
the standard set forth in PTO 28(f) and applied in the Knauf
matter. The Court will address the allocation and distribution of
common benefit fees among those attorneys who performed common
benefit work at a later date.
A full-text copy of the District Court's Jan. 10, 2020 Order &
Reasons is available at https://is.gd/Gu0Oq8 from Leagle.com.
Lynn C. Greer, Special Master, pro se.
J. Cal Mayo, Jr., Special Master, pro se.
Plaintiff, Plaintiff, represented by Russ M. Herman --
rherman@hhklawfirm.com -- Herman, Herman & Katz, LLC & Leonard A.
Davis -- ldavis@hhklawfirm.com -- Herman, Herman & Katz, LLC.
Homebuilders and Installers Steering Committee, Defendant,
represented by Phillip A. Wittmann -- pwittmann@stonepigman.com --
Stone, Pigman, Walther, Wittmann, LLC.
Insurer Steering Committee, Defendant, represented by Judy Y.
Barrasso, Barrasso, Usdin, Kupperman, Freeman & Sarver, LLC, 909
Poydras Street, Suite 2350, New Orleans, LA 70112
Defendant, Defendant, represented by Kerry James Miller, Fishman
Haygood, LLP, 201 Saint Charles Avenue, Suite 4600, New Orleans,
LA
70170-4600 & Andrew J. Brien -- brien@carverdarden.com -- Carver,
Darden, Koretzky, Tessier, Finn, Blossman & Areaux.
Defendant, Liaison Counsel for Taishan, BNMB entities, and CNBM
entities, Defendant, represented by Harry Rosenberg --
harry.rosenberg@phelps.com -- Phelps Dunbar, LLP.
MDL 2420: Class Notice on Settlement in Antitrust Suit Directed
---------------------------------------------------------------
In the case, IN RE LITHIUM ION BATTERIES ANTITRUST LITIGATION. This
Document Relates to: All Indirect Purchaser Actions, Case No.
4:13-md-02420-YGR (N.D. Cal.), Judge Yvonne Gonzalez Rogers of the
U.S. District Court for the Northern District of California,
Oakland Division, granted the Indirect Purchaser Plaintiffs
("IPPs")'s Motion to Direct Notice Regarding Settlements with (1)
Defendants LG Chem, Ltd. and LG Chem America, Inc.; (2) Hitachi
Maxell Ltd. and Maxell Corp. of America; (3) and NEC Corp.
The District Court finds that, for purposes of judgment on the
proposed Settlement Agreements, it is likely to certify the
Settlement Class, which is defined as all persons and entities who,
as residents of the United States and during the period from Jan.
1, 2000 through May 31, 2011, indirectly purchased new for their
own use and not for resale one of the following products which
contained a lithium-ion cylindrical battery manufactured by one or
more defendants or their coconspirators: (i) a portable computer;
(ii) a power tool; (iii) a camcorder; or (iv) a replacement battery
for any of these products.
Having found that it will likely approve the Settlement Agreements
and certify the Settlement Class, the Judge directed the IPPs to
give notice of the proposed Settlement Agreements to the Settlement
Class.
The Court designated Jason Ames, Caleb Batey, Christopher Bessette,
Cindy Booze, Matt Bryant, Steve Bugge, William Cabral, Matthew
Ence, Drew Fennelly, Sheri Harmon, Christopher Hunt, John Kopp,
Linda Lincoln, Patrick McGuiness, Joseph O'Daniel, Tom Pham, Piya
Robert Rojanasathit, Bradley Seldin, Donna Shawn, David Tolchin,
Bradley Van Patten, the City of Palo Alto, and the City of Richmond
as the representatives for the Settlement Class for purposes of
disseminating notice.
The Court also designated Cotchett, Pitre & McCarthy, LLP; Hagens
Hagens Berman Sobol Shapiro LLP; and Lieff Cabraser Heimann &
Bernstein, LLP as Class Counsel for the Settlement Class.
The Court appointed the firm Epiq Class Action & Claims Solutions
as the Settlement Notice Administrator. The Settlement Class
Counsel and their designees are authorized to expend funds from the
escrow accounts to pay notice and administration costs as set forth
in the Settlement Agreements.
The Court approved the form of the Email Notice. The form of the
Long Form Notice, including the exclusion and inclusion procedures,
is also approved.
The IPPs' notice provider (i) will provide notice of the
settlements and the claims process consistent with the procedure
outlined in the IPPs' Motion to Direct Notice Regarding
Settlements; (ii) will cause banner ads to be placed on the
websites as discussed in the Notice Plan, or substantially similar
websites should some circumstance make it impossible to post on the
precise websites listed in the Notice Plan; (iii) will publish
notice in sponsored search listings on major search engines, as
described in the Notice Plan; (iv) will send informational releases
regarding the case as an email blast to media outlets nationwide,
including newspapers, magazines, national wire services,
television, radio and online media, as discussed in the Notice
Plan; and (v) will maintain the case-specific website, toll-free
telephone number, and postal mailing address to further assist
potential settlement class members in understanding their rights
under the settlements.
The Court set the following schedule for the dissemination of class
notice and the scheduling of further litigation events, including
but not limited to, the final approval hearing, opt-out and
objection deadlines, and deadlines by which a motion for attorneys'
fees and litigation expenses will be submitted:
a. Notice Campaign - Begins Feb. 11, 2020
b. Last Day to file IPPs' Motion for Attorneys' Fees
and Reimbursement of Litigation Expenses -
March 9, 2020 and
c. Exclusion and Objection Deadline - April 13, 2020
d. Motion for Final Approval and Response to Objections
(if any) - May 5, 2020
e. Final Approval Hearing - May 20, 2020, 2:00 p.m.
Consistent with the schedule, each member of the settlement class
will have the right to be excluded from the settlement class by
mailing a request for exclusion to the claims administrator to be
postmarked no later than April 13, 2020. Requests for exclusion
must be in writing and set forth the name and address of the person
or entity that wishes to be excluded, any trade name or business
name and address used by such person or entity, and must be signed
by the class member seeking exclusion. No later than May 5, 2020,
Settlement Class Counsel will file with the Court a list of all
persons or entities who have timely requested exclusion from the
settlement class as provided in the settlement agreements.
Each member of the settlement class that has not timely excluded
themselves from the settlement class will have the right to object
to the new Distribution Plan by filing written objections with the
Court no later than April 13, 2020. Failure to timely file written
objections will preclude a class member from objecting to the
settlements. Each member of the settlement class as provided will
have the right to appear at the Fairness Hearing by filing a notice
of intention to appear.
The Court will conduct a Fairness Hearing on May 20, 2020, at 2:00
p.m. All briefs, memoranda, and papers in support of final
approval of the settlement will be filed no later than May 5,
2019.
A full-text copy of the District Court's Jan. 10, 2020 Order is
available at https://is.gd/dHzUdj from Leagle.com.
Kevin Young, Plaintiff, represented by Jeff D. Friedman --
jefff@hbsslaw.com -- Hagens Berman Sobol Shapiro LLP.
Kevin Young, Plaintiff, represented by George W. Sampson, Hagens
Berman Sobol Shapiro LLP, Jason Allen Zweig -- jasonz@hbsslaw.com
-- Hagens Berman Sobol Shapiro LLP, Shana E. Scarlett --
shanas@hbsslaw.com -- Hagens Berman Sobol Shapiro LLP & Steve W.
Berman -- steve@hbsslaw.com -- Hagens Berman Sobol Shapiro LLP,
pro hac vice.
Bradley Seldin, Plaintiff, represented by Jeff D. Friedman,
Hagens Berman Sobol Shapiro LLP, George W. Sampson, Hagens Berman
Sobol Shapiro LLP, Jason Allen Zweig, Hagens Berman Sobol Shapiro
LLP, Shana E. Scarlett, Hagens Berman Sobol Shapiro LLP & Steve
W. Berman, Hagens Berman Sobol Shapiro LLP, pro hac vice.
Bruce Sterman, Plaintiff, represented by Jeff D. Friedman, Hagens
Berman Sobol Shapiro LLP & Steve W. Berman, Hagens Berman Sobol
Shapiro LLP, pro hac vice.
Charles Carte, Plaintiff, represented by Guido Saveri --
guido@saveri.com -- Saveri & Saveri, Inc., Brian P. Murray --
bmurray@glancylaw.com -- Glancy Prongay & Murray LLP, Cadio R.
Zirpoli -- cadio@saveri.com -- Saveri & Saveri, Inc., David Yau-
Tian Hwu -- dhwu@saveri.com -- Saveri and Saveri Inc., Geoffrey
Conrad Rushing -- mheaphy@saveri.com -- Saveri & Saveri Inc.,
Gregory Bradley Linkh -- glinkh@glancylaw.com -- Glancy Prongay &
Murray LLP, Lee Albert -- lalbert@glancylaw.com -- Glancy Prongay
& Murray LLP, Lisa Maria Saveri -- lisa@saveri.com -- Saveri &
Saveri Inc., Richard Alexander Saveri -- rick@saveri.com --
Saveri and Saveri Inc, Richard Alexander Saveri, Saveri & Saveri,
Inc., Susan Gilah Kupfer -- skupfer@glancylaw.com -- Glancy
Prongay & Murray LLP & Todd Anthony Seaver, Berman Tabacco.
Brian Hanlon, Plaintiff, represented by Brent W. Johnson --
bjohnson@cohenmilstein.com -- Cohen Milstein Sellers and Toll
PLLC, Jeff D. Friedman, Hagens Berman Sobol Shapiro LLP, Kit A.
Pierson -- kpierson@cohenmilstein.com -- Cohen Milstein Sellers
and Toll PLLC & Laura M. Alexander --
lalexander@cohenmilstein.com -- Cohen Milstein Sellers and Toll.
Nichole M. Gray, Plaintiff, represented by Guido Saveri, Saveri &
Saveri, Inc., Aaron James Broussard, Broussard and Hart LLC,
David Yau-Tian Hwu, Saveri and Saveri Inc., Douglas A. Millen --
dmillen@fklmlaw.com -- Freed Kanner London & Millen LLC, Lisa
Maria Saveri, Saveri & Saveri Inc., Richard Alexander Saveri,
Saveri and Saveri Inc, Richard Kirchner, Bonsignore & Brewer,
Richard Alexander Saveri, Saveri & Saveri, Inc., Robert J.
Bonsignore -- rbonsignore@class-actions.us -- Bonsignore Trial
Lawyers, PLLC & Todd Anthony Seaver -- tseaver@bermantabacco.com
-- Berman Tabacco.
Woodrow Clark, II, Plaintiff, represented by Brian Joseph Barry -
- bribarry1@yahoo.com -- Law Offices of Brian Barry, James E.
Cecchi, Carella Byrne, Lindsey H. Taylor --
LTaylor@carellabyrne.com -- Carella Byrne & Todd Anthony Seaver,
Berman Tabacco.
Rebecca Cervenak, Plaintiff, represented by William James Doyle,
II -- bill@doylelowther.com -- Doyle Lowther LLP.
John Russo, Plaintiff, represented by William James Doyle, II --
jim@doylelowther.com -- Doyle Lowther LLP, James Robert Hail,
Doyle Lowther & Katherine S. DiDonato, Shustak Reynolds &
Partners, P.C..
LG Chem Ltd., Defendant, represented by Benjamin Edward Waldin --
bwaldin@eimerstahl.com -- Eimer Stahl LLP, Brian Yanlang Chang --
bchang@eimerstahl.com -- Eimer Stahl LLP, Jungmin Lee --
jlee@eimerstahl.com -- Eimer Stahl LLP, Nathan P. Eimer --
neimer@eimerstahl.com -- Eimer Stahl LLP & Vanessa Greenwood
Jacobsen -- vjacobsen@eimerstahl.com -- Eimer Stahl LLP.
LG Chem America, Inc, Defendant, represented by Benjamin Edward
Waldin, Eimer Stahl LLP, Brian Yanlang Chang, Eimer Stahl LLP,
Jungmin Lee, Eimer Stahl LLP, Nathan P. Eimer, Eimer Stahl LLP &
Vanessa Greenwood Jacobsen, Eimer Stahl LLP.
Samsung SDI America Inc, Defendant, represented by John Roberti -
- john.roberti@allenovery.com -- Allen & Overy LLP, Bradley
Pensyl -- bradley.pensyl@allenovery.com -- Allen and Overy LLP,
Jacob S. Pultman -- jacob.pultman@allenovery.com -- Allen Overy
LLP, Matthew R. Boucher -- matthew.boucher@allenovery.com --
Allen and Overy LLP, Michael S. Feldberg --
michael.feldberg@allenovery.com -- Allen and Overy LLP & Nneka
Ukpai -- Nneka.Ukpai@AllenOvery.com -- Allen and Overy LLP.
Hitachi Ltd., Defendant, represented by Craig P. Seebald --
cseebald@velaw.com -- Vinson & Elkins LLP, Elliott J. Joh --
elliott.joh@squirepb.com -- Vinson and Elkins LLP & Matthew J.
Jacobs -- mjacobs@velaw.com -- Vinson & Elkins LLP.
Hitachi Maxell, Ltd, Defendant, represented by Christopher Walter
James -- cjames@velaw.com -- Vinson and Elkins LLP, Craig P.
Seebald, Vinson & Elkins LLP, Elliott J. Joh, Vinson and Elkins
LLP, Jason Alan Levine -- jlevine@velaw.com -- Vinson Elkins LLP,
Jeremy C. Keeney -- jkeeney@velaw.com -- Vinson and Elkins
L.L.P., Lindsey Robinson Vaala -- lvaala@velaw.com -- Matthew J.
Jacobs, Vinson & Elkins LLP & Thomas William Bohnett --
tbohnett@velaw.com -- Vinson and Elkins L.L.P..
Maxell Corporation of America, Defendant, represented by
Christopher Walter James, Vinson and Elkins LLP, Craig P.
Seebald, Vinson & Elkins LLP, Elliott J. Joh, Vinson and Elkins
LLP, Jason Alan Levine, Vinson Elkins LLP, Jeremy C. Keeney,
Vinson and Elkins L.L.P., Lindsey Robinson Vaala, Matthew J.
Jacobs, Vinson & Elkins LLP & Thomas William Bohnett, Vinson and
Elkins L.L.P..
Samsung SDI Co Ltd, Defendant, represented by John Roberti, Allen
& Overy LLP, Bradley Pensyl, Allen and Overy LLP, Jacob S.
Pultman, Allen Overy LLP, Matthew R. Boucher, Allen and Overy
LLP, Michael S. Feldberg, Allen and Overy LLP & Nneka Ukpai,
Allen and Overy LLP.
Maxwell Corporation of America, Defendant, represented by Thomas
William Bohnett, Vinson and Elkins L.L.P..
Hitachi Maxell Corporation of America, Defendant, represented by
Lindsey Robinson Vaala.
Toshiba America Electronic Components Inc, Defendant, represented
by Christopher M. Curran -- ccurran@whitecase.com -- White & Case
& J. Frank Hogue -- fhogue@whitecase.com -- White Case LLP.
METALS USA: Filing of Bid for Final Nod of Wilson Deal Due March 27
-------------------------------------------------------------------
In the case, JAMES WILSON, an individual, and JACK WHITE, an
individual, on behalf of themselves and all others similarly
situated, Plaintiffs, v. METALS USA, INC., a Delaware Corporation;
and DOES 1-100, inclusive, Defendants, Case No.
2:12-CV-00568-KJM-DB (E.D. Cal.), Magistrate Judge Kimberly J.
Mueller of the U.S. District Court for the Eastern District of
California has entered an order continuing the deadline to file
Motion for Final Approval and associated deadlines.
The Parties and the Claims Administrator will abide by the
following schedule with respect to the resolution of claims, the
filing of the final approval papers, and the final approval
hearing:
a. Last Day for Parties to resolve all disputes relating to
the Claim Forms and Provide Claims Administrator with final
resolution of disputes -- No later than March 2, 2020
b. Last Day for Claims Administrator to provide the Parties
with a Declaration Re: Notice to the Class, Claim Forms Received,
Deficiency Letters Issued, Response to Deficiency Letters, and
Final Amounts to be Paid -- No later than March 11, 2020
c. Last Day for Plaintiffs to file Motion for Final Approval
of Class Action -- No later than March 27, 2020
d. Settlement Hearing on Plaintiffs' Motion for Final Approval
of Class Action Settlement -- April 24, 2020 at 10:00 a.m.
A full-text copy of the Court's Feb. 19, 2020 Order is available at
https://is.gd/B03kEq from Leagle.com.
James Wilson & Jack White, Plaintiffs, represented by Crystal Lee
Matter -- crystal@matterlawapc.com -- Stonebarger Law APC, Gene
Joseph Stonebarger, Esq. -- gstonebarger@stonebargerlaw.com -- and
Richard David Lambert, Esq. -- rlambert@stonebargerlaw.com --
STONEBARGER LAW.
Rita White, Plaintiff, represented by Gene Joseph Stonebarger,
Stonebarger Law & Richard David Lambert, Stonebarger Law.
Metals USA, Inc., A Delaware Corporation, Defendant, represented
by
Adrian J. Sawyer, Esq. -- sawyer@kerrwagstaffe.com -- KERR &
AGSTAFFE, LLP -- Bartholomew Dalton, Esq. --
Bdalton@kilpatricktownsend.com -- KILPATRICK TOWNSEND & STOCKTON,
LLP
MONTGOMERY COUNTY, NY: Motions in Limine in Hill Suit Partly Okayed
-------------------------------------------------------------------
In the case, PERRY HILL and JAMES ROGERS, both individually and on
behalf of a class of others similarly situated, Plaintiffs, v.
COUNTY OF MONTGOMERY, MICHAEL AMATO and MICHAEL FRANKO, Defendants,
Case No. 9:14-cv-00933 (BKS/DJS) (N.D. N.Y.), Judge Brenda K.
Sannes of the U.S. District Court for the Northern District of New
York granted in part and denied in part the parties' motions in
limine.
Plaintiffs Hill and Rogers bring the conditions-of-confinement
class action under 42 U.S.C. Section 1983 against the Defendant,
alleging that the Defendants failed to provide adequate nutrition
while they were in the Montgomery County Jail ("MCJ") in
Fultonville, New York, in violation of the Eighth and Fourteenth
Amendments.
Presently before the Court are the parties' motions in limine. In
their motions, the parties address the admissibility of: (1) inmate
grievances, (2) class questionnaires, (3) evidence regarding the
amount of time between inmates' meals and the "absence of a
commissary at MCJ," (4) evidence of the commissary's return in
2019, (5) evidence of inmate weight loss, (6) evidence of prior
civil rights actions against Defendants Amato and Franko, and (7)
evidence of the "Hotel Amato" sign at MCJ. The Defendants also
move to limit liability against Defendants Amato and Franko to the
time period prior to their respective retirements from MCJ.
On Feb. 14, 2020, the Court held a pretrial conference and heard
oral argument on the parties' motions.
The Plaintiffs seek to admit into evidence food-related grievances
various inmates filed at MCJ between 2011 and 2015 on the ground
that they show the Defendants had notice of inmate complaints of
hunger and inadequate nutrition. The Defendants oppose the
introduction of the grievances on hearsay grounds.
Judge Sannes finds that the Plaintiff has not demonstrated how
inmates who made grievances were acting in the course of a
regularly conducted business activity or how making the grievances
was a regular practice of that activity. And, even assuming that
the Plaintiffs are able to lay a foundation showing Defendant Amato
or Franko was aware of the grievances, they would not be hearsay if
they were admitted to show that the Defendants had notice of
complaints regarding the food being provided at MCJ. Although the
Defendants argue that the Plaintiffs' inherent purpose in
introducing the evidence is for the truth of the statements
included in the grievances, the Court, if requested, will issue a
limiting instruction at the time of introduction, and at the end of
the case, cautioning the jury to consider the grievances only on
the issue of notice, and not for the truth of the allegations in
the grievances.
The Defendants seek to preclude as hearsay, questionnaires
completed by class members concerning their experience at MCJ. The
Plaintiffs stated at the pretrial conference that they do not
intend to introduce the questionnaires into evidence. Indeed, the
questionnaires are not on their exhibit list. Accordingly, the
Defendants' motion to preclude the questionnaires is denied as
moot.
The Defendants seek to prohibit the Plaintiffs from introducing
evidence "related to the amount of time between inmates' meals" and
the "absence of a commissary" on the grounds that such evidence is
inadmissible under Rules 402 and 403 because it would only confuse
the jury as to the relevant issues. The Judge finds that the
length of time between meals and the absence of any other source of
food, and the impact these conditions had on the hunger inmates
allegedly experienced at MCJ have long been part of the conditions
of confinement claim in the case. Moreover, as the jury must
consider whether the conditions "alone or in combination" posed a
danger to inmates' health, evidence concerning the timing of the
meals, and the absence of any other food source, is both material
and highly relevant. The Judge therefore finds that the probative
value of the evidence substantially outweighs any danger of
confusing the issues. Accordingly, the Defendants' motion to
preclude evidence regarding the time between meals and the absence
of a commissary is denied.
The Defendants also seek to preclude the Plaintiffs from
introducing evidence that the Sheriff who took over following
Defendant Amato's retirement, reopened the commissary in 2019.
They assert Rule 407 prohibits evidence of subsequent remedial
measures. The Judge finds that the Plaintiffs do not explain how
the return of the commissary is relevant to the class definition.
To the extent they intend to introduce such evidence for the
purpose of showing a commissary was feasible, it is not clear that
feasibility is a contested issue. The Judge's ruling will await
trial. If the Defendants open the door at trial to the feasibility
of a commissary, evidence of its reopening will be admissible.
The Defendants then seek to bar the Plaintiffs from introducing
evidence of inmate weight loss on the ground that such evidence is
relevant to the issues of causation and damages only and should not
be admitted during the liability phase of the trial. The Judge
holds that weight loss may be relevant to show Defendant Franko
knew that inmates were not receiving a sufficient number of
calories. Accordingly, the Defendants' motion to preclude evidence
of weight loss is denied.
The Defendants further seek to preclude the Plaintiffs from
introducing evidence of prior civil rights lawsuits against them.
Because the Plaintiffs do not oppose this aspect of the Defendants'
motion, it is, accordingly, denied as moot.
The Defendants move to bar the Plaintiffs from referring to a sign
posted in the MCJ intake area, arguing the sign has limited
probative value, is unfairly prejudicial, confuses the issues, will
mislead the jury, cause undue delay, and waste time. To the extent
the Plaintiffs offer the Hotel Amato sign to show Defendant Amato's
alleged state of mind or intent toward the inmates of MCJ, they
offer it for a proper purpose for which it appears to be highly
probative. With respect to the Defendants' argument that it is
unfairly prejudicial, the Judge notes that because virtually all
evidence is prejudicial to one party or another, to justify
exclusion under Rule 403, the prejudice must be unfair. The
unfairness contemplated involves some adverse effect beyond tending
to prove a fact or issue that justifies admission. While it would
appear that the sign's probative value substantially outweighs the
danger of unfair prejudice and other 403 concerns, she will reserve
on ruling on this issue until trial.
Finally, Defendants Amato and Frank assert they should not be held
liable for anything at MCJ following their respective retirements.
The Plaintiffs agree that Defendant Amato's retirement marks the
end of the liability period. They also agree that Defendant Franko
cannot be held liable for anything after his retirement in November
2016. Accordingly, the Defendants' motion to preclude liability
after Defendants Amato and Franko's retirement is denied as moot.
For these reasons, Judge Sannes granted in part and denied in part
the parties' motions in limine.
A full-text copy of the Court's Feb. 19, 2020 Memorandum-Decision &
Order is available at https://is.gd/PLRRgS from Leagle.com.
Perry Hill, both individually and on behalf of a class of others
similarly situated, Plaintiff, represented by Elmer R. Keach, III
,
Law Offices of Elmer Robert Keach, III, P.C., 1 Pine West Plaza,
Suite 109, Albany, NY 12205, Jason S. Rathod -
jrathod@classlawdc.com - Migliaccio & Rathod LLP, pro hac vice,
Maria K. Dyson , Law Offices of Elmer Robert Keach, III, P.C., 1
Pine West Plaza, Suite 109, Albany, NY 12205, & Nicholas A.
Migliaccio - nmigliaccio@classlawdc.com - Migliaccio & Rathod LLP.
James Rogers, Plaintiff, represented by Elmer R. Keach, III , Law
Offices of Elmer Robert Keach, III, P.C., Maria K. Dyson , Law
Offices of Elmer Robert Keach, III, P.C. & Nicholas A. Migliaccio
,
Migliaccio & Rathod LLP.
County of Montgomery, Michael Amato, Sheriff, Montgomery County &
Michael Franko, Jail Administrator, Montgomery County Jail,
Defendants, represented by Chelsea E. Manocchi -
cmanocchi@goldbergsegalla.com - Goldberg Segalla, LLP & Jonathan
M.
Bernstein - jbernstein@goldbergsegalla.com - Goldberg, Segalla Law
Firm.
PERSONALIZATIONMALL: Barnes Sues over Collection of Biometrics
---------------------------------------------------------------
DERRICK BARNES, on behalf of himself and all others similarly
situated, Plaintiff v. PERSONALIZATIONMALL.COM, LLC, Defendant,
Case No. 2020CH02695 (Ill. Cir., Cook Cty., March 4, 2020) is a
class action complaint brought against Defendant for its alleged
unlawful collection, use, and storage of sensitive biometric data
in violation of the Biometric Information Privacy Act.
According to the complaint, the Defendant's employees, including
Plaintiff, are required to place their finger on Defendant's
biometric time clock to use their fingerprint as part of a means of
authentication.
The complaint asserts that Defendant:
-- failed to properly inform them in writing that their
biometric information or identifiers were being collected;
-- failed to properly inform them of the specific purpose and
length of time for which their fingerprints were being collected,
stored, and used, as required by the BIPA;
-- failed to create or make available retention schedule and
guidelines for permanently destroying their fingerprints, as
required by the BIPA; and
-- failed to seek a prior written authorization from them to
collect, capture, or otherwise obtain their fingerprints, as
required by the BIPA.
PersonalizationMall.com offers a wide selection of high-quality
personalized gifts for all recipients and occasions.[BN]
The Plaintiff is represented by:
Alejandro Caffarelli, Esq.
Lorrie T. Peeters, Esq.
Katherine Stryker, Esq.
CAFFARELLI & ASSOCIATES LTD.
224 N. Michigan Ave., Ste. 300
Chicago, IL 60604
Tel: (312)763-6880
Emails: acaffarelli@caffarelli.com
lpeeters@caffarelli.com
PILOT TRAVEL: Discovery & Entry of Sched Order in Drasal Stayed
---------------------------------------------------------------
In the case, STEVEN C. DRASAL, Individually and On Behalf of All
Others Similarly Situated, Plaintiff, v. PILOT TRAVEL CENTERS, LLC
d/b/a PILOT FLYING J, Defendants, Case No. 19-981 KWR/CG (D. N.M.),
Chief Magistrate Judge Carmen E. Garza of the U.S. District Court
for the District of New Mexico granted the parties' Stipulated
Motion to Stay Discovery and to Stay Entry of a Scheduling Order
Pending the Court's Ruling on Defendant's Motion to Compel
Arbitration, Motion to Enforce Class Action Waiver and Motion to
Dismiss, filed Feb. 13, 2020.
The Magistrate finds the Motion to be well-taken. The discovery
and entry of a scheduling order are stayed until the Defendants'
Motion to Compel Arbitration, filed Jan. 14, 2020, is decided by
the presiding judge. The Court's Initial Scheduling Order and
telephonic Rule 16 Scheduling Conference, set for Feb. 20, 2020,
are vacated.
A full-text copy of the Court's Feb. 19, 2020 Order is available at
https://is.gd/FhqHgl from Leagle.com.
Steven C. Drasal, individually and on behalf of all others
similarly situated, Plaintiff, represented by Edmond S. Moreland,
Jr. -- edmond@morelandlaw.com -- Moreland Verrett, PC & Daniel A.
Verrett -- daniel@morelandlaw.com.
Pilot Travel Centers, LLC, doing business as Pilot Flying J,
Defendant, represented by Laura Renee Ackermann --
Laura.Ackermann@lewisbrisbois.com -- Lewis Brisbois Bisgaard &
Smith LLP & Ryan M. Walters -- Ryan.Walters@lewisbrisbois.com --
Lewis Brisbois Bisgaard & Smith, LLP.
POLARIS INDUSTRIES: Court Narrows Claims in Products Liability Suit
-------------------------------------------------------------------
Judge Wilhelmina M. Wright of the U.S. District Court for the
District of Minnesota granted in part and denied in part the
Defendants' motion to dismiss the Plaintiffs' first amended
consolidated class-action complaint in In re Polaris Marketing,
Sales Practices, and Products Liability Litigation, Case No.
18-cv-0939 (WMW/DTS) (D. Minn.).
The Plaintiffs are 14 individuals who reside in 13 states.
Defendants Polaris Industries, Inc. and Polaris Sales Inc. design
and manufacture off-road vehicles and their component parts,
including engines. Each Plaintiff, between approximately May 8,
2014, and Feb. 9, 2018, purchased an off-road vehicle manufactured
by the Defendants.
The Plaintiffs allege that a design defect, namely "excessive heat
defect," has caused more than 250 fires, more than 30 severe
injuries, and at least three deaths. According to them, the
excessive-heat design defect is common to all of the vehicles at
issue, which are equipped with an unusually high-powered "ProStar"
engine. Seven of the Plaintiffs -- Luna, Halvorsrod, Guthrie,
Rogers, Elkin, Turgeon, and Rodriguez -- allege that during the
operation of their off-road vehicles, the vehicles caught fire,
which resulted in a total loss of the vehicles.
In April 2018, the Plaintiffs commenced multiple putative
class-action lawsuits against the Defendants arising from the
alleged defects and fire hazards associated with the class
vehicles. United States Magistrate Judge David T. Schultz
consolidated these cases and appointed interim counsel to act on
behalf of the putative class. Magistrate Judge Schultz also
ordered the Plaintiffs to file a consolidated complaint, which they
filed on June 15, 2018. The consolidated complaint alleged 54
counts against the Defendants.
On March 6, 2019, the Court granted in part and denied in part the
Defendants' motion to dismiss the Plaintiffs' consolidated
complaint. In doing so, the Court dismissed without prejudice
claims asserted by seven of the Plaintiffs for lack of standing.
The Court also dismissed without prejudice the breach-of-warranty,
Magnuson-Moss Warranty Act ("MMWA"), and unjust-enrichment claims
asserted by two of the Plaintiffs. And the Court dismissed with
prejudice the fraudulent-omission claims asserted by two of the
Plaintiffs.
The Plaintiffs amended their consolidated complaint on May 14,
2019, adding four Plaintiffs from three other states. Counts 2
through 65 of the Plaintiffs' first amended consolidated complaint
allege state-law claims, including violations of state
consumer-fraud laws, breach of express and implied warranties,
fraudulent omission, and unjust enrichment. These claims pertain
to the 13 states in which the Plaintiffs purchased allegedly
defective off-road vehicles. The Plaintiffs allege that the engine
defects have diminished the value of their vehicles and, had they
known about the engine defects, they either would not have
purchased the vehicle or would have paid significantly less for the
vehicle. The Plaintiffs seek injunctive and monetary relief, and
they expressly decline to seek damages for any personal injuries
resulting from the alleged engine defects.
The Defendants move to dismiss each count of the Plaintiffs'
amended consolidated complaint except for (1) Plaintiff Luna's
unjust-enrichment and breach-of-warranty claims pursuant to
California law; (2) Plaintiff Halvorsrod's and Plaintiff Rogers'
consumer-fraud claims pursuant to Florida and Minnesota law,
respectively; (3) Plaintiff Turgeon's unjust-enrichment and
consumer-fraud claims pursuant to South Dakota law; and (4)
Plaintiff Guthrie's redhibition claim pursuant to Louisiana law.
The Plaintiffs' claims must be dismissed, the Defendants contend,
for lack of standing, Fed. R. Civ. P. 12(b)(1), or for failure to
state a claim on which relief can be granted, Fed. R. Civ. P.
12(b)(6).
Among other things, Judge Wright finds that because Plaintiffs
Bruner, Lenz, Zeeck, Berens, Jacks, Forrest, and Beattie fail to
allege a particularized and actual injury in fact, these Plaintiffs
lack Article III standing to pursue their claims in federal court.
Consequently, the following counts are dismissed without prejudice
for lack of subject-matter jurisdiction: Count 1 as to the No-Fire
Plaintiffs, Counts 2 through 6 as to Plaintiff Bruner, Counts 17
through 25 as to Plaintiffs Lenz and Zeeck, Counts 37 through 46 as
to Plaintiffs Berens and Jacks, Counts 57 through 61 as to
Plaintiff Forrest, and Counts 62 through 65 as to Plaintiff
Beattie.
Although both parties cite federal decisions in support of their
respective positions, none is authoritative as to the Court,
Pennsylvania state courts, or Texas state courts. The Court's
research has not discovered any case law from Pennsylvania or Texas
courts that would settle the issue. Nor has the Court's research
found a legal requirement in either Pennsylvania or Texas law for a
direct conferral of a benefit on a defendant to maintain an
unjust-enrichment claim. For these reasons, the Judge granted the
Defendants' motion to dismiss as to the unjust-enrichment claims
asserted by Plaintiffs Halvorsrod and Rogers, (Counts 16 and 36),
and denied as to the unjust-enrichment claims asserted by
Plaintiffs Elkin and Rodriguez, (Counts 51 and 61). Counts 16 and
36 are dismissed with prejudice.
The amended consolidated complaint alleges that, before purchasing
his car, Plaintiff Luna communicated with friends and a salesperson
at Mountain Motorsports in Ontario, California. But the Plaintiffs
do not allege that Mountain Motorsports is one of the Defendants'
authorized dealerships. As alleged, Plaintiff Luna's fraud claims
do not identify any actionable statement or omission attributable
to Defendants. As such, Luna fails to plead his fraud claims with
particularity, as required. For these reasons, Plaintiff Luna's
fraud claims, (Counts 7, 10, and 12), are dismissed without
prejudice.
For these reasons, Judge Wright granted in part and denied in part
the Defendants' motion to dismiss the Plaintiffs' amended
consolidated complaint.
Counts 15, 16, 27, 29 through 31, 35, 36, 47, 50, 57 (as asserted
by Plaintiff Isaac Rodriguez), and 60 (as asserted by Plaintiff
Isaac Rodriguez) of the amended consolidated complaint, are
dismissed with prejudice.
Count 1 (as asserted by all Plaintiffs except Plaintiff Luna), 2
through 7, 10, 12, 14, 17 through 25, 28, 33, 34, 37 through 46,
48, 49, 53 through 55, 57 through 61 (as asserted by Plaintiff
Bryan Forrest), 58 (as asserted by Plaintiff Isaac Rodriguez), 59
(as asserted by Plaintiff Isaac Rodriguez), and 62 through 65 of
the amended consolidated complaint, are dismissed without
prejudice.
A full-text copy of the Court's Feb. 26, 2020 Order is available at
https://is.gd/gYd6p7 from Leagle.com.
Plaintiffs' Interim Co-Lead Counsel, Plaintiff, represented by
Adam
J. Levitt -- alevitt@dlcfirm.com -- DiCello Levitt Gutzler LLC,
pro
hac vice, Karl L. Cambronne -- kcambronne@chestnutcambronne.com --
Chestnut Cambronne, PA, Roland Karim Tellis, Baron Budd PC, pro
hac
vice & W. Daniel Miles, III -- info@baronbudd.com -- Beasley Allen
Crow Methvin Portis & Miles, P.C.
Plaintiffs' Liaison Counsel, Plaintiff, represented by Bryan L.
Bleichner -- #bbleichner@chestnutcambronne.com -- Chestnut
Cambronne PA & Karl L. Cambronne, Chestnut Cambronne, PA.
James Bruner, individually and on behalf of all others similarly
situated, Plaintiff, represented by Adam J. Levitt, DiCello Levitt
Gutzler LLC, pro hac vice, Bryan L. Bleichner, Chestnut Cambronne
PA, Courtney Davenport, The Davenport Law Firm LLC, pro hac vice,
Daniel R. Ferri, DiCello Levitt Gutzler LLC, pro hac vice, H. Clay
Barnett, III, Beasley Allen, Crow, Methvin, Portis & Miles, P.C.,
pro hac vice, Jeffrey D. Bores, Chestnut Cambronne, PA, John E.
Tangren, DiCello Levitt & Casey LLC, pro hac vice, Karl L.
Cambronne, Chestnut Cambronne, PA & Wilson Daniel Miles, III,
Beasley, Allen, Crow, Methvin, Portis & Miles, P.C., pro hac vice.
Michael Zeeck, individually and on behalf of all others similarly
situated & Ed Beattie, individually and on behalf of all others
similarly situated, Plaintiffs, represented by Adam J. Levitt,
DiCello Levitt Gutzler LLC, pro hac vice, Bryan L. Bleichner,
Chestnut Cambronne PA, Courtney Davenport, The Davenport Law Firm
LLC, pro hac vice, Daniel R. Ferri, DiCello Levitt Gutzler LLC,
pro
hac vice, H. Clay Barnett, III, Beasley Allen, Crow, Methvin,
Portis & Miles, P.C., pro hac vice, Jeffrey D. Bores, Chestnut
Cambronne, PA, John E. Tangren, DiCello Levitt & Casey LLC, pro
hac
vice, Karl L. Cambronne, Chestnut Cambronne, PA & Wilson Daniel
Miles, III, Beasley, Allen, Crow, Methvin, Portis & Miles, P.C.,
pro hac vice.
Jose Luna, individually and on behalf of those similarly situated,
Plaintiff, represented by Clifford L. Carter --
cliff@cwclawfirm.com -- Carter Wolden Curtis, LLP, David
Fernandes,
Jr. -- dfernandes@baronbudd.com -- David Fernandes, pro hac vice,
Gregory N. McEwen -- gmcewen@mcewenlaw.com -- McEwen Law Firm,
Ltd., Karl L. Cambronne , Chestnut Cambronne, PA, Kirk Jerome
Wolden -- kirk@cwclawfirm.com -- Carter Wolden Curtis, LLP, Mark
Pifko -- mpifko@baronbudd.com -- Baron & Budd, P.C., pro hac vice
&
Roland Karim Tellis -- rtellis@baronbudd.com -- Baron Budd PC, pro
hac vice.
Polaris Industries, Inc. & Polaris Sales Inc., Defendants,
represented by Andrew Baker Bloomer, Kirkland & Ellis LLP, pro hac
vice, Paul David Collier, Kirkland & Ellis LLP, pro hac vice,
Peter
Magnuson, Faegre Baker Daniels LLP, R. Allan Pixton , Kirkland &
Ellis LLP, pro hac vice, Richard C. Godfrey, Kirkland & Ellis, pro
hac vice & Wendy Jo Wildung, Faegre Baker Daniels LLP.
PORSCHE FIN'L: Partial Summ. Judgment Bid in Cox Granted in Part
----------------------------------------------------------------
In the case STEVEN MICHAEL COX, individually and on behalf of those
similarly situated, Plaintiff, v. PORSCHE FINANCIAL SERVICES, INC.,
Defendant, Case No. 16-23409-CIV-GAYLES/LOUIS (S.D. Fla.), Judge
Darrin P. Gayles of the U.S. District Court for the Southern
District of Florida granted in part and denied in part the parties'
cross-motions for partial summary judgment.
The action stems from a 2015 lease transaction that Plaintiff Cox
completed with a non-party dealer, Porsche of Fort Myers. The
Dealer agreed to give the Plaintiff $25,000 for his 2015 Hyundai
Genesis and then agreed to apply that trade-in value to his lease
transaction for a 2015 Porsche Cayman. The Plaintiff took the deal
and executed with the Dealer a single-payment lease for $36,539.30
due at lease signing. He paid with a check for $11,539.30 and with
the $25,000 credit for his trade-in.
The Plaintiff's lease agreement included a section titled "Trade-in
Vehicle," which is used to show that a vehicle is being traded in
as part of a lease agreement. The Dealer listed the Plaintiff's
2015 Hyundai Genesis under "Trade-in Vehicle" on his lease form.
The Plaintiff's lease agreement also included a section titled "Net
Trade-In Allowance" ("NTIA"), which represents the gross
agreed-upon value of a trade-in less the balance owed on the
trade-in. The Dealer assigned the Plaintiff's trade-in a gross
value of $25,000. The Plaintiff owed no balance on the trade.
However, under the NTIA section of the Plaintiff's lease, the
Dealer stated "N/A" to mean "not applicable."
Among other things, the NTIA is used to determine the "Capitalized
Cost Reduction" ("CCR"), which represents the amount of any Net
Trade-in Allowance, rebate, noncash credit, or cash you pay that
reduces the Gross Capitalized Cost. The Dealers may apply a CCR to
a lease to reduce the "Adjusted Capitalized Cost," which may reduce
other lease terms, such as the interest ("rent charge") and taxes
paid on the lease. Under the CCR section of the Plaintiff's lease,
the Dealer again stated "N/A."
When the Plaintiff noticed that his lease form indicated "N/A"
under the NTIA section, he asked the Dealer where the credit for
his trade-in was. The Dealer pointed to the section showing his
total due at signing: $36,539.30. Satisfied, the Plaintiff signed
the lease form and left the dealership with his 2015 Porsche Cayman
and no money owed to the Dealer. Weeks later, the Plaintiff
reviewed the lease with his neighbor, a former car dealer, who told
him that his rent charge was "extremely high." After later
consulting an attorney, the Plaintiff came to believe that the
Dealer overcharged him $3,970.93 in interest and sales tax by
failing to apply his trade-in as a CCR.
Defendant Porsche Financial generates and provides to the Dealer
lease agreement forms that Defendant guarantees comply with Federal
law and the law of the state where the Dealer is located, if
completed accurately. The Defendant also reviews every lease that
the Dealer executes through a two-step process: (1) credit
underwriting and (2) contract processing. Relevant in the case,
the Defendant provided to the Dealer the lease agreement that the
Plaintiff completed, approved his credit application, reviewed his
executed lease agreement for compliance with the Truth-in-Lending
Act, and currently services the Plaintiff's lease.
On Aug. 8, 2016, the Plaintiff filed the class action under both
federal question and diversity jurisdiction against the Defendants
(1) Porsche Cars North America, Inc., (2) Porsche Leasing Ltd., and
(3) Porsche Financial Services, Inc., alleging nine counts: (1)
Consumer Leasing Act ("CLA") and Regulation M violations, (2) per
se violation of the Florida Deceptive and Unfair Trade Practices
Act ("FDUTPA") based on CLA and Regulation M violations, (3) FDUTPA
violation based on the Dealer's failure to disclose how the NTIA
was applied, (4) FDUTPA violation based on the Dealer's failure to
apply the NTIA to reduce the CCR, (5) breach of contract, (6)
breach of covenant of good faith and fair dealing, (7) negligent
training and supervision (only against Defendant Porsche Cars North
America, Inc.), (8) unjust enrichment, and (9) negligence.
In his Complaint, the Plaintiff sought damages and declaratory and
injunctive relief enjoining Defendants from continuing to violate
federal and Florida law relative to the unlawful treatment of a
consumer's NTIA and the imposition and collection of sales taxes.
On Nov. 28, 2017, all the Defendants jointly filed their Motion for
Summary Judgment. On Oct. 19, 2018, the Court affirmed and adopted
Judge Louis' Report and Recommendation granting in part and denying
in part the Defendants' Joint Motion, leaving only Counts 1-4
against remaining Defendant, Porsche Financial Services, Inc.
On Aug. 1, 2019, the Defendant filed a Motion for Partial Summary
Judgment on two issues: (1) whether Florida law permits private
parties to pursue civil penalties under FDUTPA and (2) whether the
Court has subject matter jurisdiction to hear the Plaintiff's
claims.
On Aug. 30, 2019, the Plaintiff filed his Amended Motion for
Partial Summary Judgment, arguing that summary judgment is
warranted in his favor as to (1) all elements of his FDUTPA claim
under Count 49, (2) the Defendant's affirmative defense under
Florida Statute Section 213.756, and (3) the Defendant's
affirmative defense under the voluntary payment doctrine.
As for the Defendant's Motion for Partial Summary Judgment, the
Defendant argues that the Court lacks jurisdiction because the
Plaintiff failed to exhaust his administrative remedies under
Florida Statute Section215.26(4). Judge Gayles finds that the
Florida Statute Section 215.26(4) is inapplicable because the
Plaintiff does not seek a tax refund; he seeks, among other things,
actual damages that include alleged overcharges for interest and
fees on his lease. The Defendant cites no, and the Court is
unaware of, authority stating that a plaintiff who is not seeking a
tax refund must exhaust administrative remedies under Section
215.26(4). Even so, that a dealer may issue an assignment of
rights to his/her customer in lieu of a refund, does not demand the
Plaintiff to have sought such assignment before bringing suit.
Accordingly, the Court has jurisdiction.
Judge Gayles then finds that summary judgment is warranted with
respect to the Defendant's argument that the Plaintiff is unable to
pursue civil penalties, in addition to damages, under FDUTPA.
Florida Statute Section 501.2075 provides that that civil penalties
under FDUTPA may be recovered in any action brought under this part
by the enforcing authority. The statute defines an enforcing
authority as the office of the state attorney if a violation of
this part occurs in or affects the judicial circuit under the
office's jurisdiction or the Department of Legal Affairs if the
violation occurs in or affects more than one judicial circuit or if
the office of the state attorney defers to the department in
writing or fails to act upon a violation within 90 days after a
written complaint has been filed with the state attorney. As the
Plaintiff is not an enforcing authority under the statute, the
Judge grants summary judgment in favor of the Defendant as to the
Plaintiff's claim for civil penalties pursuant to FDUTPA.
As for the Plaintiff's Motion for Partial Summary Judgment, the
Plaintiff argues that Defendant committed two traditional FDUTPA
violations by (1) using a lease calculation that violates Florida
tax law12 and (2) reviewing, accepting, and approving such an
unlawful calculation.
Judge Gayles holds that summary judgment is unwarranted as to both
bases. First, whether conduct constitutes an unfair trade practice
is a question of fact for the jury to decide. Because genuine
issues of material fact remain as to whether the Defendant
"directly participated" in the Plaintiff's lease calculation,the
Judge denies the Plaintiff summary judgment as to this claim.
Second, whether conduct constitutes an unfair trade practice is a
question of fact for the jury to decide. Accordingly, Judge Gayles
denies summary judgment as to the Plaintiff's FDUTPA claim.
Judge Gayles grants the Plaintiff summary judgment with respect to
the Defendant's affirmative defense based on Florida Statute
Section 213.756. The Plaintiff correctly submits that the statute
is inapplicable where, as is the case, the action is not against a
retailer, dealer, or vendor, and the Plaintiff does not seek a tax
refund. Summary judgment is warranted in the Plaintiff's favor as
to this defense.
However, the Court denies the Plaintiff summary judgment as to the
Defendant's voluntary payment doctrine defense. Under the common
law voluntary payment doctrine, money voluntarily paid under a
claim of right, with full knowledge of the material facts, cannot
be recovered merely because the paying party, at the time of the
payment, mistook the law as to his liability to pay. The party
asserting the defense must show that the person who made the
payment had full knowledge of the relevant facts, including
allegedly wrongful conduct. As the Plaintiff has provided no
evidence that the circumstances have changed since the Court
affirmed Judge Louis' Report, which found that there is a genuine
dispute whether the Plaintiff entered into the lease deal with
knowledge of the factual circumstances, Judge Gayles denies the
Plaintiff's request for summary judgment as to the voluntary
payment doctrine.
Based on the foregoing, Judge Gayles granted the Defendant's Motion
for Partial Summary Judgment as to civil penalties being
unavailable to the Plaintiff under FDUTPA, and denied as to its
argument that the Court lacks subject matter jurisdiction to hear
the Plaintiff's claims. He granted the Plaintiff's Motion for
Partial Summary Judgment as to the Defendant's affirmative defense
under Florida Statute Section 213.756, and denied as to both (1)
his FDUTPA claim and as to (2) the Defendant's additional
affirmative defense under the voluntary payment doctrine.
A full-text copy of the Court's Feb. 19, 2020 Order is available at
https://is.gd/PtT6b2 from Leagle.com.
Steven Michael Cox, individually and on behalf of those similarly
situated, Plaintiff, represented by Adam W. Pittman --
apittman@corywatson.com -- Cory Watson, PC, pro hac vice, Hirlye R.
Lutz, III -- rultz@corywatson.com -- Cory Watson PC, pro hac vice,
Ronald Peter Weil -- RWeil@weilquaranta.net -- Ronald Weil PA,
Frank Jerome Tapley -- jtapley@corywatson.com -- Cory Watson, P.C.,
Marguerite Clare Racher Snyder, Weil Quaranta P.A. & Mark A.
Schweikert -- mschweikert@shb.com -- Schweikert Law PLLC.
Porsche Financial Services, Inc., Porsche Leasing Ltd. & Porsche
Cars North America, Inc., Defendants, represented by Jacqueline
Stechsculte Miller, Nelson Mullins Broad and Cassel, Stacey M.
Mohr, Sutherland Asbill & Brennan, LLP, pro hac vice, Tara Suzanne
Pellegrino, Vision Precision Holdings, LLC, Thomas M. Byrne --
tombyrne@eversheds-sutherland.com -- Sutherland Asbill & Brennan,
pro hac vice, Valerie S. Sanders --
valeriesanders@eversheds-sutherland.com -- Sutherland Asbill &
Brennan, LLP, pro hac vice & Steven Ellison --
steven.ellison@nelsonmullins.com -- Nelson Mullins Broad and
Cassel.
PAG DAVIE P1, LLC, Respondent, represented by Glen Reid Goldsmith
-- ggoldsmith@goldsmithpa.com -- Goldsmith & Atlas, P.A.
PPDAI GROUP: Court Narrows Claims in Securities Suit
----------------------------------------------------
In the case, IN RE PPDAI GROUP SECURITIES LITIGATION, Plaintiff, v.
XXX, Defendant, Case 654482/2018 (N.Y. Sup.), Judge Saliann
Scarpulla of the New York County Supreme Court granted in part and
denied in part the Defendants' motion to dismiss the consolidated
amended complaint.
PPDAI is an online consumer finance marketplace with primary
operations in the People's Republic of China ("PRC") that connects
borrowers and investors whose needs have not been met by
traditional financial institutions. In its Nov. 13, 2017
prospectus, PPDAI stated that, through its full-service
peer-to-peer ("P2P") lending platform, it generates revenue
primarily from fees charged to borrowers for its services in
matching them with investors and for other services it provides
over the loan lifecycle. The company also generates revenue from
loan facilitation service fees, post-facilitation service fees,
collection fees and management fees.
PPDAI sold shares to the public in an initial public offering
("IPO") in November 2017. The offering materials included the
Prospectus and Forms F-1 and F-5 registration statements. The SEC
declared the Registration Statement effective on Nov. 9, 2017.
Then, on Nov. 13, 2017, the Defendants priced the American
Depositary Shares ("ADS") at $13 per share and filed the final
Prospectus for the IPO. Law Debenture served as PPDAI's agent for
the service of process in the United States and the IPO
underwriters were Credit Suisse, Citigroup and KBW. The Plaintiffs
allege that the IPO generated $221 million in proceeds before
underwriting discounts and commissions (totaling $15.4 million).
The Plaintiffs allege that by the Offering Materials' effective
date, the PRC had increased its scrutiny and regulation of the P2P
lending industry and that PPDAI engaged in the type of lending and
collection misconduct, such as usurious loan rates and abusive
collection practices, that was the subject of the PRC's scrutiny.
They allege that the Defendants disclosed only the amount, terms
and delinquency status of PPDAI's loans with rates between 24% and
36%, but did not, similar information concerning PPDAI's exposure
to loans with rates higher than 36%. The Plaintiffs claim that
this information was important because, under PRC law, the portion
of any interest rate above 36% is unenforceable, and PPDAI was
substantially facilitating such loans.
Less than a month following the IPO, analysts reported that PPDAI's
average all-in rate of interest grossly exceeded 36%. Credit
Suisse, in a Dec. 6, 2017 report on the P2P lending industry,
estimated that the blended annualized cost PPDAI charged is around
60%. In December 2017, after the PRC promulgated regulations
prohibiting all-in rates above 36% and the Credit Suisse analyst
report, PPDAI's trading price declined considerably.
Under the PRC's Guidelines on Promoting the Healthy Development of
Online Finance Industry and the Interim Measures on Administration
of Business Activities of Online Lending Information
Intermediaries, PPDAI and other P2P lending platforms were
prohibited from offering credit enhancement services. In the
Offering Materials, PPDAI represented that it had previously
engaged in practices with institutional investors that could be
classified as the prohibited credit enhancement services. The
Offering Materials noted that PPDAI.
The Plaintiffs allege that, contrary to the aforementioned
assurances, PPDAI engaged in prohibited credit enhancement
practices exposing PPDAI to fines and regulatory repercussions and
jeopardizing PPDAI's ability to do business. A July 18, 2018 UBS
analyst report noted that the continued engagement in credit
enhancement practices by PPDAI and other P2Ps created downside
risks to their margins. Over the two-day period after the 2018 UBS
Report, PPDAI's trading price declined.
In the CAC, Plaintiffs allege that the Defendants failed to
disclose that PPDAI was engaged in improper and illegal predatory
lending and collection practices. The CAC alleges the statement
regarding collection methods was misleading because, at the time of
the Offering Materials, PPDAI was engaging in improper collection
methods and had received complaints about its actions prior to the
IPO. After news reports revealed that the PRC sought to tighten
regulation of the P2P industry due to misconduct, PPDAI's ADS price
declined.
Finally, the Plaintiffs allege that, although the Offering
Materials described exponential growth in its loan origination
volume, PPDAI was then facing circumstances that prevented it from
maintaining its loan origination volume and could reasonably
foresee a reversal of its trend of increasing loan originations.
They allege that because the Offering Materials "heavily promoted"
a trend of increasing loan origination volume at the time of the
IPO, the Defendants were required to disclose that PPDAI's practice
of imposing excessive borrowing costs could quickly reverse the
trend if regulators prohibited all-in rates in excess of 36%.
The CAC states that PPDAI had an affirmative obligation to disclose
facts in the Offering Materials required by Item 303 of Regulation
S-K, including information regarding known trends, uncertainties or
events. The Plaintiffs allege that PPDAI failed to disclose
uncertainties and risks that were known to it at the time of the
Offering Materials including those (1) associated with its practice
of imposing total annualized borrowing costs in excess of 36% of
the loan amount; and (2) "associated with its predatory, unethical
and illegal loan origination and collection practices.
On Sept. 10, 2018, Huang filed a complaint alleging violations the
'33 Act in connection with the alleged materially misleading
statements and omissions in PPDAI's IPO Offering Materials. Vora
filed a similar complaint on Sept. 27, 2018 and the actions were
subsequently consolidated. On Dec. 17, 2018, the Plaintiffs filed
the CAC, asserting three causes of action for violations of
Sections 11, 12(a)(2) and 15 of the '33 Act.
The Defendants now move to dismiss the CAC on the grounds of
documentary evidence, lack of standing and failure to state a
claim.
Judge Scarpulla denied the motion by Defendants PPDAI Group, Inc.,
Credit Suisse Securities (USA) LLC, Citigroup Global Markets Inc.,
Keefe, Bruyette & Woods, Law Debenture Corporate Services Inc., and
Giselle Manon to dismiss the Plaintiffs' second cause of action
based on standing.
She otherwise denied the motion by Defendants PPDAI Group, Inc.,
Credit Suisse Securities (USA) LLC, Citigroup Global Markets Inc.,
Keefe, Bruyette & Woods, Law Debenture Corporate Services Inc., and
Giselle Manon to dismiss the Plaintiffs' first, second and third
causes of action with respect to the allegations concerning loan
interest rates in excess of 36% and otherwise granted.
Among other things, the Judge finds that contrary to the
Defendants' assertion, for Section 12(a)(2) standing, it is
sufficient to allege that the Plaintiffs purchased ADSs in
connection with the IPO, and the Plaintiffs need not identify the
specific defendant from whom they purchased the ADSs. Thus, the
Plaintiffs statement in the CAC that they purchased shares "in
connection with the IPO and pursuant and/or traceable to the
Offering Materials is sufficient for standing purposes. She
declines to dismiss the Section 12(a)(2) claims based on standing.
The cases cited by the Defendants do not require a different
result.
In addition, she finds that the alleged misrepresentations
concerning interest rates in excess of 36% support a claim under
Section 11 and Section 12(a)(2). The Plaintiffs' allegation that,
absent information on the total extent or magnitude of PPDAI's
exposure to loans above interest rates of 36%, investors could not
adequately assess the ADS's actual value or the risks of purchasing
them, is sufficient, at this stage of the litigation, to state a
claim under sections 11 and 12(a)(2).
The counsel for the parties are directed to appear for a status
conference on March 18, 2020 at 2:15 p.m. The ruling constitutes
the decision and order of the Court.
A full-text copy of the Court's Feb. 26, 2020 Order is available at
https://is.gd/pAEtZd from Leagle.com.
Robbins Geller Rudman & Dowd LLP, Melville, NY (Samuel H. Rudman --
srudman@rgrdlaw.com -- Joseph Russello, Robert D. Gerson) and Scott
& Scott, New York City (Max Schwartz, Randy Moonan) for plaintiffs
Yizhong Huang and Ravindra Vora.
Skadden, Arps, Slate, Meagher & Flom LLP, New York City (Scott D.
Musoff -- scott.musoff@skadden.com -- Robert A. Fumerton, Michael
C. Griffin) for defendants PPDAI Group Inc., Law Debenture and
Giselle Manon.
Shearman & Sterling LLP, New York City (Adam S. Hakki --
ahakki@shearman.com -- Daniel Lewis , Daniel Kahn ) for defendants
Credit Suisse Securities (USA) LLC, Citigroup Global Markets Inc.
and Keefe, Bruyette & Woods, Inc.
PRET A MANGER: Bid to Dismiss Cunningham Suit Over Fraud Denied
---------------------------------------------------------------
In the case, SKYLAR CUNNINGHAM, individually on behalf of herself
and all others similarly situated, Plaintiff, v. PRET A MANGER
(USA) LTD., Defendant, Case No. 19-cv-02322 (CM) (S.D. N.Y.), Judge
Colleen McMahon of the U.S. District Court for the Southern
District of New York denied Pret's motion to dismiss or to
alternatively stay the Second Amended Complaint, filed Sept. 12,
2019, pending the completion of jurisdictional discovery.
Plaintiff Cunningham commenced the action against Defendant Pret
for deceptively marketing and labeling its products as "natural"
when many of them contain soya, a genetically modified organism
("GMO"), and other synthetic ingredients. The Plaintiff filed the
action on March 15, 2019.
The Plaintiff brings the action for violations of New York General
Business Law Sections 349 and 350, the consumer protection statutes
of all 50 states, and Magnuson-Moss Warranty Act, breach of express
warranty, implied warranty of merchantability, implied warranty of
fitness for a particular purpose, and unjust enrichment. The
Plaintiff is a citizen of New York State. She notes that many
Class Members reside in the Southern District of New York, and
throughout the State of New York.
The Plaintiff filed an Amended Complaint ("FAC") on April 17, 2019.
On July 8, 2019, the Defendant moved to dismiss the FAC. In lieu
of a response, the Plaintiff filed the SAC on Aug. 12, 2019. The
SAC seeks various monetary and punitive damages, injunctive relief,
and specifically requests that Pret (1) cease advertising or
stating the Products as Natural; and (2) inform consumers that the
Products contain GMOs and other synthetic ingredients in
advertising for the Products. Within the SAC, the Plaintiff
requests certification of a New York subclass.
Pret moved to dismiss or to alternatively stay the SAC on Sept. 12,
2019, for lack of subject matter jurisdiction and failure to state
a claim. In the alternative, it has asked the Court to stay the
case until the FDA releases its findings on the "natural" label on
food.
Pret urges that there are a number of deficiencies in the
Plaintiff's SAC: (1) Pret argues that the Plaintiff has failed to
meet Article III's standing requirements because she has not
alleged an adequate injury; (2)the Plaintiff cannot establish class
standing; (3) the Plaintiff cannot establish standing to sue for
injunctive relief; (4) the Plaintiff cannot establish jurisdiction
under the Class Action Fairness Act ("CAFA"); and (5) the Plaintiff
has failed to establish jurisdiction under the MMWA.
Judge McMahon deemed that the Plaintiff has met CAFA's threshold
jurisdictional requirements. However, because it is unclear
whether the Court has subject matter jurisdiction under CAFA's
jurisdictional carve outs, Judge McMahon ordered the parties to
engage in limited jurisdictional discovery for the purpose of
determining whether two-thirds or more of the putative class
members are New York citizens before the U.S. Magistrate Judge
Stewart D. Aaron. Any discovery disputes should be directed to the
Magistrate Judge Aaron. The deadline for completion was March 6,
2020.
In the interim, Judge McMahon denied Pret's motion to dismiss
pending the completion of jurisdictional discovery.
A full-text copy of the Court's Jan. 10, 2020 Memorandum & Order is
available at https://is.gd/D1T4zq from Leagle.com.
Skylar Cunningham, individually on behalf of herself and all others
similarly situated, Plaintiff, represented by George Volney Granade
-- ggranade@reesellp.com -- Reese LLP, Michael Robert Reese --
mreese@reesellp.com -- Reese Richman, LLP, Janine Lee Pollack --
pollackj@theslutzerlawgroup.com -- The Sultzer Law Group, P.C.,
Jeremy Bradford Francis -- francisj@thesultzerlawgroup.com -- The
Sultzer Law Group & Jason P. Sultzer --
sultzerj@thesultzerlawgroup.com -- The Sultzer Law Group.
Pret A Manger (USA) Limited, Defendant, represented by Randa Adra
-- radra@crowell.com -- Crowell & Moring LLP & Sarah Gilbert --
sgilbert@crowell.com -- Crowell & Moring LLP.
PSC INC: $1.52MM Settlement in Miller Suit Gets Final Approval
--------------------------------------------------------------
In the case, KIMBERLY MILLER, BRIANA HOUSER, and DEAN BUCHHOLZ, on
behalf of themselves and on behalf of others similarly situated,
Plaintiffs, v. P.S.C., INC., d/b/a PUGET SOUND COLLECTIONS, and
DOES ONE THROUGH TEN, Defendants, Case No. 3:17-cv-05864-RBL (W.D.
Wash.), Judge Ronald B. Leighton of the U.S. District Court for the
Western District of Washington granted (i) the Plaintiffs' Motion
for Final Approval of Class Action Settlement, and (ii) the Class
Counsel's Motion for an Award of Fees, Costs, and Class
Representative Statutory and Service Awards.
On Sept. 10, 2019, the Court preliminarily approved the Agreement
and directed that notice be given to the Class. Pursuant to the
notice requirements set forth in the Agreement and Preliminary
Approval Order, the Class Members were notified of the terms of the
proposed Agreement, of their right to opt out, and of their right
to object and be heard at a Final Approval Hearing to determine
whether the terms and conditions of the Agreement are fair,
reasonable, and adequate for the release of the claims contemplated
by the Agreement; and whether judgment should be entered dismissing
this action with prejudice.
The Court has reviewed and considered all papers filed in support
of and in opposition to the settlement, and all exhibits thereto,
and held a hearing after notice was sent to the Class in order to
confirm that the settlement is fair, reasonable, and adequate, and
to determine whether the Final Approval Order should be entered in
the action pursuant to the terms and conditions set forth in the
Agreement on Jan. 10, 2020 at support of and in opposition to the
settlement.
Pursuant to the terms of the Agreement, the Court modified the
class definition in its Preliminary Approval Order to include all
persons against whom Defendant obtained a judgment by filing one of
the challenged forms within the four-year statute of limitations
under the Consumer Protection Act, as follows: All persons who
returned to Defendant a signed Stipulation Re Balance Owed and For
Judgment or Stipulated Judgment, or substantially similar debt
collection form, at any time since Septe. 18, 2013, and any person
against whom Defendant obtained a judgment by filing a Stipulation
Re Balance Owed and For Judgment and Stipulated Judgment, at any
time since Sept. 18, 2013.
In its Preliminary Approval Order, the Court also found that the
FDCPA Sub-Class satisfies numerosity and certified the following
Sub-Class: All persons in the Class whose alleged debt was incurred
primarily for personal, family, or household purposes and from whom
P.S.C. collected or attempted to collect a debt using a Stipulation
Re Balance Owed and For Judgment or Stipulated Judgment, or
substantially similar debt collection form, at any time since Sept.
18, 2016.
After considering the motions and the declarations and exhibits
submitted with the motions, Judge Leighton entered the Final
Approval Order and Judgment, which constitutes a final adjudication
on the merits of all claims of the Class and Sub-Class.
The Court reaffirmed the appointment of Kimberly Miller, Briana
Houser, and Dean Bucholz as Class Representatives, and the Terrell
Marshall Law Group and the Law Office of Joshua L. Turnham PLLC, as
Class Counsel.
The settlement requires P.S.C. to establish a Settlement Fund in
the amount of $1.52 million to be comprised of (a) $275,000 in
write-offs of the balances owed on Class Member Accounts; and (b)
$1.245 million in cash that the parties propose to use to make
payments to all the Class Members with a deliverable address who
did not timely exclude themselves from the settlement; pay the
settlement administrator the costs of notice and settlement
administration expenses in an amount capped at $18,000; pay
statutory damages and service awards in the amount of $5,000 to
each Class Representative; and pay the Class Counsel's attorneys'
fees and expenses in the amount of $380,000. The Settlement Fund
is non-reversionary and any amounts remaining in the Settlement
Fund after the deadline to cash checks has expired will be
disbursed to the Legal Foundation of Washington and the Northwest
Consumer Law Center, two non-profit organizations dedicated to
protecting Washington consumers, including victims of unfair debt
collection practices.
P.S.C. is ordered to comply with the non-monetary relief required
by the Settlement. It will no longer use collection-related forms
that purport to permit entry of judgment without first serving a
summons and complaint or file the Stipulated Judgment forms in any
court in Washington. P.S.C. shall, within 10 days of the Effective
Date of the settlement, cease all efforts to apply for writs of
garnishment in any Pierce County Superior Court case where it
obtained a judgment against any Class Member Judgment Account
without having served the Class Member with a summons and
complaint. And P.S.C. shall, within 90 days of the Effective Date
of he settlement, file partial or full satisfactions of judgment
reflecting the write-off allocations required under the Agreement.
Finally, it shall, within 30 days of the Effective Date of the
settlement, request the deletion of any tradeline it has been
reporting to any consumer reporting agency regarding any Class
Member account.
The Court finally approved the Agreement, including the plans for
implementation and distribution of the Settlement Fund. The Court
dismissed with prejudice the action, the Released Claims, and the
Released Parties, and adjudged that the Released Claims are
released against the Released Parties. Within the time period set
forth in section III.2 of the Agreement, the Settlement Payments
will be issued to each Settlement Class Member under the terms of
the Agreement.
The Court approved the payment of attorneys' fees and costs in the
amount of $380,000. The amount will be taken out of the Settlement
Fund that is paid by P.S.C. pursuant to the terms of the Agreement.
The Class Counsel's application for statutory damages and service
awards for Class Representatives Kimberly Miller, Briana Houser,
and Dean Buchholz in the amount of $5,000 each is granted.
A full-text copy of the Court's Jan. 10, 2020 Order is available at
https://is.gd/14OSqy from Leagle.com.
Kimberly Miller, Briana Houser & Dean Buchholz, on behalf of
themselves and on behalf of others similarly situated, Plaintiffs,
represented by Beth E. Terrell -- bterrell@tmdwlaw.com -- TERRELL
MARSHALL LAW GROUP PLLC, Blythe H. Chandler --
bchandler@terrellmarshall.com -- TERRELL MARSHALL LAW GROUP PLLC &
Joshua L. Turnham -- joshua@turnhamlaw.com -- THE LAW OFFICE OF
JOSHUA L TURNHAM PLLC.
P.S.C., Inc., doing business as Puget Sound Collections,
Defendant,
represented by Robert E. Sabido -- rsabido@cosgravelaw.com --
COSGRAVE VERGEER KESTER & Timothy J. Fransen --
tfransen@cosgravelaw.com -- COSGRAVE VERGEER KESTER.
PTAG INC: Cotton Labor Suit Seeks Unpaid Overtime Wages
-------------------------------------------------------
Rita Cotton, individually and on behalf of all others similarly
situated, Plaintiff, v. PTAG, Inc., Defendant, Case No. 20-cv-00163
(W.D. Pa., February 3, 2020), seeks to recover unpaid overtime and
other damages pursuant to the Fair Labor Standards Act and the
Pennsylvania Minimum Wage Act.
PTAG provides engineering, consulting and automation services to
pipeline companies, utilities and industrial customers where Cotton
worked as a Document Control Lead from April 2017 until April 2018.
She claims he was paid a salary regardless of the number of hours
she worked that day without any overtime pay for hours worked in
excess of forty hours in a workweek. [BN]
Plaintiff is represented by:
Michael A. Josephson, Esq.
Andrew W. Dunlap, Esq.
Taylor A. Jones, Esq.
JOSEPHSON DUNLAP LAW FIRM
11 Greenway Plaza, Suite 3050
Houston, TX 77046
Tel: (713) 352-1100
Fax: (713) 352-3300
Email: mjosephson@mybackwages.com
adunlap@mybackwages.com
tjones@mybackwages.com
- and -
Richard J. Burch, Esq.
BRUCKNER BURCH, P.L.L.C.
8 Greenway Plaza, Suite 1500
Houston, TX 77046
Tel: (713) 877-8788
Fax: (713) 877-8065
Email: rburch@brucknerburch.com
- and -
Joshua P. Geist, Esq.
GOODRICH & GEIST, P.C.
3634 California Ave.
Pittsburgh, PA 15212
Tel: 412-766-1455
Fax: 412-766-0300
Email: josh@goodrichandgeist.com
RIPPLE LABS: Court Narrows Claims in Zakinov Securities Suit
------------------------------------------------------------
In the case, VLADI ZAKINOV, et al., Plaintiffs, v. RIPPLE LABS,
INC., et al., Defendants, Case No. 18-cv-06753-PJH (N.D. Cal.),
Judge Phyllis J. Hamilton of the U.S. District Court for the
Northern District of California granted in part and denied in part
the Defendants' motion to dismiss Zakinov's consolidated class
action complaint.
The consolidated putative class action ("In re Ripple") arises out
of the creation, dispersal, circulation, and sale of "XRP," a sort
of digital units often referred to as a "cryptocurrency." In re
Ripple comprises various actions alleging both violations of
federal and California state securities laws. Such actions include
Coffey v. Ripple et al., 18-3286, Greenwald v. Ripple et al.,
18-4790, Zakinov v. Ripple et al., 18-CIV-2845 (Cal. Super. Ct. San
Mateo Cty.), and Oconer v. Ripple Labs, Inc., 18-CIV-3332 (Cal.
Super. Ct. San Mateo Cty.).
On Aug. 5, 2019, the Plaintiff filed the operative consolidated
complaint against the Defendants. In it, he alleges the following
claims: (i) Violation of Section 12(a)(1) of the Securities Act
against the Defendants for the unregistered offer and sale of
securities; (ii) Violation of Section 15 of the Securities Act
against Defendant Ripple and Defendant Garlinghouse for control
person liability for the primary violation of Title 15 U.S.C.
Section 77l(a)(1)(together with U.S.C. Section 77l(a)(1), the
federal securities claims); (iii) Violation of California
Corporations Code Section 25503 against the Defendants for a
primary violation of Section 25110's restriction on the offer or
sale of unregistered securities; (iv) Violation of California
Corporations Code Section 25504 against Defendant Ripple and
Defendant Garlinghouse for control person liability in connection
with the Defendants' primary violation of Section 25110; (v)
Violation of California Corporations Code Section 25501 against
Defendant Ripple and Defendant XRP II, as well as a parallel
material assistance claim under Section 25504.1 against Defendant
Ripple and Defendant Garlinghouse, for misleading statements in
connection with the offer or sale of securities in violation of
Section 25401; (vi) Violation of California Business & Professions
Code Section 17500 against the Defendants for misleading
advertisements concerning XR; and (viii) Violation of California
Business & Professions Code Section 17200 against the Defendants
for their unregistered offer or sale of securities in violation of
federal and state law, false advertising practices, misleading
statements, and offense to established public policy.
The Defendants filed the instant motion to dismiss for failure to
state a claim under Rule 12(b)(6). At the core of the Plaintiff's
claims is that XRP qualifies as a security under California state
and federal law. While the Plaintiff alleges the legal theory at
length in his complaint, the Defendants save their dispute with
that theory for another day and assume -- solely for the instant
motion -- the Plaintiff's legal position that XRP qualifies as a
security. Instead, the Defendants challenge the complaint on
grounds of Title 15 U.S.C. Section 77m's three-year statute of
repose and traditional Rule 12(b)(6) failure to state a claim
grounds.
Judge Hamilton granted in part and denied in part the Defendants'
motion to dismiss. The motion to dismiss the first and second
causes of action for violation of Title 15 U.S.C. Section 77l(a)(1)
and Section 77o is denied. The motion to dismiss the third and
fifth causes of action for violation of California Corporations
Code Section 25503, Section 25504, and Section 25110 is denied.
The motion to dismiss the fourth cause of action for violation of
California Corporations Code Section 25501, Section 25504.1, and
Section 25401 is granted with leave to amend. The motion to
dismiss the sixth and seventh causes of action for violations of
California Business and Professions Code Section 17200 and Section
17500 is granted with prejudice, except as narrowly provided
immediately in the Order.
Among other things, the Judge finds that the Plaintiff has failed
to allege a predicate violation of Section 25401. Absent such
showing, he cannot allege joint and several liabilities under
Section 25504.1 against Defendant Ripple or defendant Garlinghouse.
He also finds that the Plaintiff does not dispute that Rule 9(b)'s
heightened pleading standard generally applies to Section 17200 and
Section 17500 claims in federal court. In his three-paragraph
opposition to the Defendants' challenge that his Section 17200 and
Section 17500 claims fail Rule 9(b), the Plaintiff relies solely
upon the same seven categories of purported misstatements that he
identified in support of his misrepresentation claims under
California Corporations Code Section 25401 and Section 25504. As
decided, such alleged misstatements fail Rule 9(b)'s heightened
pleading requirements. As a result, the Plaintiff's Section 17200
and Section 17500 claims similarly fail those requirements.
The Judge allowed the Plaintiff 28 days from the date of the Order
to file an amended consolidated complaint accounting for the
deficiencies in the claims dismissed without prejudice. In it, the
Plaintiff must specifically set forth any alleged misrepresentation
used to support any amended claim. Failure to do so will result in
dismissal of such claim with prejudice. The Plaintiff may not
otherwise amend his complaint absent leave of court or consent of
the Defendants. Upon the filing of any amended complaint, the
Plaintiff must also file a redline clearly demarcating its changes
from the existing complaint.
A full-text copy of the Court's Feb. 26, 2020 Order is available at
https://is.gd/Sd1P4o from Leagle.com.
Vladi Zakinov, individually and on behalf of all others similarly
situated, Plaintiff, represented by Brian J. Robbins --
brobbins@robbinsarroyo.com -- Robbins Arroyo LLP, Brian Edward
Cochran -- bcochran@rgrdlaw.com -- Robbins Geller Rudman & Dowd
LLP, Brian O. O'Mara -- bomara@rgrdlaw.com -- Robbins Geller
Rudman
& Dowd LLP, David Conrad Walton -davew@rgrdlaw.com -- Robbins
Geller Rudman & Dowd LLP, Eric M. Carrino --
ecarrino@robbinsarroyo.com -- Robbins Arroyo LLP, Shawn A.
Williams -- shawnw@rgrdlaw.com -- Robbins Geller Rudman & Dowd LLP
& Stephen J. Oddo -soddo@robbinsarroyo.com -- Robbins Arroyo LLP.
Ripple Labs, Inc., XRP II, LLC, Bradley Garlinghouse, Christian
Larsen, Ron Will, Antoinette O'Gorman, Eric van Miltenburg, Susan
Athey, Zoe Cruz, Ken Kurson, Ben Lawsky, Anja Manuel & Takashi
Okita, Defendants, represented by Peter Bradley Morrison --
peter.morrison@skadden.comSkadden -- Arps Slate Meagher and Flom
LLP, John M. Neukom -- john.neukom@skadden.com -- Skadden, Arps,
Slate, Meagher & Flom LLP & Virginia Faye Milstead --
virginia.milstead@skadden.com -- Skadden, Arps, Slate, Meagher &
Flom LLP.
ROBINHOOD FINANCIAL: Court Dismisses Gordon Suit Without Prejudice
------------------------------------------------------------------
In the case, ISAAC GORDON, Plaintiff, v. ROBINHOOD FINANCIAL, LLC,
a Delaware limited liability company, and ROBINHOOD MARKETS, INC.,
a Delaware corporation, Defendants, Case No. 2:19-CV-0390-TOR (E.D.
Wash.), Judge Thomas O. Rice of the U.S. District Court for the
Eastern District of Washington granted the Defendants' two Motions
to Dismiss.
The case concerns the "Refer a Friend" marketing feature of the
Defendants' online investment brokerage application, which the
Plaintiff alleges violates the Washington Consumer Protection Act
by way of the Washington Commercial Electronic Mail Act ("CEMA").
The Plaintiff initially filed a Complaint against the Defendants in
Spokane County Superior Court. The Defendants removed the action
to federal court on the basis of class action diversity
jurisdiction under the Class Action Fairness Act ("CAFA").
Following removal, the Plaintiff filed an Amended Complaint, which
is the current operative Complaint. The Defendants then filed a
Motion to Dismiss for lack of personal jurisdiction over Defendant
Robinhood Markets. They also filed a Motion to Dismiss for failure
to adequately allege a CEMA violation.
The Defendants filed a Motion to Dismiss for lack of personal
jurisdiction over Defendant Robinhood Markets, pursuant to Fed. R.
Civ. P. 12(b)(2). The Plaintiff then voluntarily dismissed
Defendant Robinhood Markets, pursuant to Fed. R. Civ. P. 41(a)(1).
Robinhood Markets contends it is entitled to attorney's fees for
prevailing on its Rule 12(b)(2) motion.
Washington law authorizes an award of attorney's fees to a
defendant who is "personally served outside the state" and
"prevails in the action." RCW 4.28.185. "Under this statute, courts
are allowed to award attorney's fees to defendants who -- after
being hailed into court under the long-arm statute -- prevail on a
12(b)(2) motion to dismiss. The statute authorizes an award of
fees to a foreign defendant when the plaintiff voluntarily
dismisses the action. Robinhood Markets is a foreign Defendant who
was voluntarily dismissed without prejudice from the action.
Accordingly, under RCW 4.28.185, Robinhood Markets is entitled to
an award of attorney's fees.
The Defendants move to dismiss the Plaintiff's Complaint for
failure to adequately allege a CEMA violation. However, review of
the parties' briefing on the issue has triggered the Court's
obligation to consider whether federal subject-matter jurisdiction
is present.
In any class action, the claims of the individual class members
will be aggregated to determine whether the matter in controversy
exceeds the sum or value of $5 million, exclusive of interest and
costs. In the factual allegations of the Amended Complaint, the
Plaintiff alleges the Defendants' text messages were only actually
sent to "hundreds of Washington recipients." Assuming he correctly
asserts that each class member would be entitled to $1,500 in
damages, which could then be trebled to $4,500 per class member,
the Plaintiff would still need to allege a class of over 1,100
members in order to satisfy the class aggregate
amount-in-controversy requirement. The Plaintiff's vague
allegation that the text messages at issue were only sent to
"hundreds" of Washington residents fails to meet this threshold.
Because the Plaintiff's Amended Complaint fails to allege a
sufficient amount-in-controversy to support federal diversity
jurisdiction, Judge Rice must dismiss the action. The Plaintiff
may have leave to file a Second Amended Complaint within 30 days of
the Order.
In light of the foregoing, Judge Rice granted the Defendants'
Motion to Dismiss Defendant Robinhood Markets, Inc. Defendant
Robinhood Markets is entitled to an award of attorney's fees.
Within 14-days, Robinhood Markets will file its request and
substantiation for attorney fees.
The Judge also granted the Defendants' Motion to Dismiss for
Failure to State a Claim. The case is dismissed without prejudice
and with leave to amend. The District Court Executive is directed
to enter the Order, furnish copies to the counsel, and terminate
Robinhood Markets as a Defendant in the matter.
A full-text copy of the Court's Feb. 19, 2020 Order is available at
https://is.gd/oD2Ch0 from Leagle.com.
Isaac Gordon, an individual, and all those similarly situated,
Plaintiff, represented by Brian Cameron --
bcameron@cameronsutherland.com -- Cameron Sutherland PLLC, Kirk D.
Miller -- kmiller@millerlawspokane.com -- Kirk D. Miller PS &
Shayne Sutherland -- ssutherland@cameronsutherland.com -- Cameron
Sutherland PLLC.
Robinhood Financial LLC, a Delaware limited liability company,
Defendant, represented by Kenneth E. Payson -- kenpayson@dwt.com --
Davis Wright Tremaine LLP & Lauren Rainwater --
laurenrainwater@dwt.com -- Davis Wright Tremaine LLP.
SAGINAW COUNTY, MI: Court Stays Fox Suit Pending Decision in Freed
------------------------------------------------------------------
Judge Thomas L. Ludington of the U.S. District Court for the
Eastern District of Michigan, Northern Division, stayed the case,
THOMAS A. FOX, et al., Plaintiffs, v. COUNTY OF SAGINAW, by its
BOARD OF COMMISSIONERS, et al., Defendants, Case No. 1:19-cv-11887
(E.D. Mich.) pending the Sixth Circuit's decision in Freed v.
Thomas, Case No. 18-2312 (6th Cir.).
Plaintiff Fox was the owner of real property in Alma, Michigan in
Gratiot County. As of 2017, the Property had accrued a Tax
Delinquency of approximately $3,091.23. He claims that in February
2017, Defendant Thomas seized ownership of the Property on behalf
of Gratiot County as its duly elected treasurer. He represents
that on the date of seizure, the Property had a State Equalized
Value of $25,200. The Plaintiff reasons that because the fair
market value of a property is at least twice the amount of its
State Equalized Value, it means that the government would have
known or should have known that said property had a fair market
value of at least $50,400. Accordingly, the Plaintiff claims that
he had $47,308.77 in equity in the Property (the difference between
the fair market value of $50,400 and the tax delinquency of
$3,091.23). The Plaintiff contends that by retaining the funds,
Defendants Thomas and Gratiot County "took or destroyed" his equity
in the Property. The Plaintiff argues that Defendants are seizing
property and maintaining the equity pursuant to Michigan's General
Property Tax Act ("GPTA").
On June 25, 2019, Plaintiff Fox filed a complaint against multiple
Michigan counties and county officials. The Plaintiff claims that
the Defendants' process of foreclosure of property to satisfy
unpaid real estate taxes is unconstitutional.
Plaintiff alleges that Michigan law generally authorizes counties
to foreclose on parcels in order to satisfy outstanding unpaid
property taxes, but the Defendant Counties and their officials
abuse the process. They do not foreclose on the parcel; sell it;
keep the amount of the outstanding taxes plus reasonable fees; and
return the rest to the property owner. Rather, they foreclose; sell
the property at a reduced amount; and keep all of the proceeds and
excess/surplus equity for themselves. As a result, property owners
lose the entire value of their property, which is often orders of
magnitude more than the outstanding tax bills.
The complaint seeks to certify the case as a class action to
include the Plaintiffs throughout Michigan who are similarly
situated to Plaintiff Fox. The complaint lists the following
counties and their treasurers as Defendants: Gratiot, Saginaw, Bay,
Midland, Isabella, Tuscola, Montmorency, Alpena, Oscoda, Alcona,
Arenac, Ogemaw, Clare, and Gladwin. The complaint presented five
counts, specifically a taking under the Fifth and Fourteenth
Amendments, Inverse Condemnation, a violation of the Michigan
Constitution, and a violation of the Eighth Amendment.
On Aug. 14, 2019, 25 of the Defendants filed a motion to dismiss
the complaint. On Sept. 4, 2019, the Plaintiffs filed an amended
complaint adding the following counties and their treasurers as
Defendants: Crawford, Genesee, Huron, Jackson, Lapeer, Lenawee,
Macomb, Otsego, Presque Isle, Roscommon, Sanilac, St Clair, and
Washtenaw. The amended complaint presented three additional
counts, specifically violations of procedural and substantive due
process and unjust enrichment.
Forty-seven of the Defendants have now filed motions to dismiss the
amended complaint and motions for summary judgment. Among these
Defendants are the twenty-five that previously filed a motion to
dismiss the initial complaint. The parties were ordered to show
cause why the case should not be stayed pending the Sixth Circuit's
resolution of the case Freed v. Thomas, Case No. 18-2312 (6th
Cir.). The parties responded to the order to show cause and
acknowledged that there was sound reason to stay the case.
Judge Ludington holds that the facts in Freed and the facts before
the Michigan District Court are almost identical. The claims for
relief under the Fifth, Eighth, and Fourteenth Amendments are the
same. Most importantly, one of the major questions regarding
whether the Court has jurisdiction considering Knick is also the
same. Judge Ludington sees no reason to resolve the issue while it
is pending before the Sixth Circuit.
Among the Defendants listed in the Plaintiff's complaint are Alcona
County and Cheryl Franks. Summons were issued for both the
Defendants on July 1, 2019, but no certificate of service has been
filed nor has an attorney filed an appearance on behalf of either
of these Defendants. Accordingly, the Plaintiff was ordered to
show cause why his claims against Alcona County and Cheryl Franks
should not be dismissed for failure to prosecute. The Plaintiff
filed a motion to "reissue the summonses" for Alcona County and
Cheryl Franks. The Plaintiff's motion will be granted.
Accordingly, Judge Ludington granted the Plaintiff's motion to
issue a second summons for Defendants Alcona County and Cheryl
Franks. The Judge directed the Clerk of Court to issue a second
summons for Defendants Alcona County and Cheryl Franks. The Judge
denied as moot the motion to dismiss the initial complaint due to
the Plaintiffs' amended complaint. The case is stayed pending the
Sixth Circuit's decision in Freed. The parties will file a notice
with the Court within 30 days of the Sixth Circuit issuing a
mandate.
A full-text copy of Judge Ludington's Jan. 10, 2020 Order is
available at https://is.gd/AWakqj from Leagle.com.
Thomas A Fox, and all those similarly situated, Plaintiff,
represented by Christopher D. Kaye, Miller Law Firm, Daniel Luke
Ravitz, Miller Law Firm, E. Powell Miller, The Miller Law Firm,
Gregory A. Mitchell, Lawyers Group of Michigan, Matthew E. Gronda
-- matthewgronda@gmail.com -- Matthew E. Gronda, J.D., P.L.C.,
Sharon S. Almonrode, The Miller Law Firm, P.C., William Kalas --
WK@miller.law -- The Miller Law Firm, P.C. & Philip L. Ellison --
pellison@olcplc.com -- Outside Legal Counsel PLC.
County of Saginaw, by its Board of Commissioners, Timothy M Novak,
in his official and individual capacities, Bay, County of, by its
Board of Commissioners, Richard F Brzezinkski, in his individual
capacity, Shawna S Walraven, in her official and individual
capacities, Gratiot, County of, by its Board of Commissioners,
Michelle Thomas, in her official and individual capacities,
Midland, County of, by its Board of Commissioners, Cathy Lunsford,
in her official and individual capacities, Isabella, County of, by
its Board of Commissioners, Steven W Pickens, in his official and
individual capacities, Tuscola, County of, Patricia Donovan-Gray,
in her official and individual capacities, Montmorency, County of,
by its Board of Commissioners, Jean M Klein, in her official and
individual capacities, Alpena, County of, by its Board of
Commissioners, Kimberly Ludlow, in her official and individual
capacities, Oscoda, County of, by its Board of Commissioners,
William Kendall, in his official and individual capacities, Arenac,
County of, by its Board of Commissioners, Dennis Stawowy, in his
official and individual capacities, Clare, County of, by its Board
of Commissioners, Jenny Beemer-Fritzinger, in her official and
individual capacities, Gladwin, County of, by its Board of
Commissioners & Christy Van Tiem, in her official and individual
capacities, Defendants, represented by Allan C. Vander Laan,
Cummings, McClorey & Bradley C. Yanalunas, Cummings, McClorey,
Davis & Acho, P.L.C.
Ogemaw, County of, by its Board of Commissioners & Dwight McIntyre,
in his official and individual capacities, Defendants, represented
by Gregory M. Meihn -- gmeihn@foleymansfield.com -- Foley &
Mansfield, PLLP, Matthew Wise -- mwise@foleymansfield.com -- Foley
& Mansfield, PLLP & Melinda A. Balian -- mbalian@foleymansfield.com
-- Foley & Mansfield.
Crawford, County of, Kate M. Wagner, Joseph V. Wakeley, Presque
Isle, County of & Bridget Lalonde, Defendants, represented by
Charles A. Lawler, Clark Hill.
Genesee, County of, Deborah Cherry, Huron, County of, Debra
McCollum, Jackson, County of, Karen Coffman, Lapeer, County of,
Dana M. Miller, Lenawee, County of, Marilyn J. Woods, Otsego,
County of, Diann Axford, Roscommon, County of, Rebecca Ragan,
Sanilac, County of, Trudy Nicol, St Clair, County of & Kelly
Roberts-Burnett, Defendants, represented by Allan C. Vander Laan,
Cummings, McClorey.
Macomb, County of & Lawrence Rocca, Defendants, represented by
Aaron C. Thomas, Macomb County Corporation Counsel, Frank J.
Krycia, Macomb County Corporation Counsel & Peter C. Jensen, Macomb
County Corporation Counsel.
Washtenaw, County of & Catherine McClary, Defendants, represented
by Kyle M. Asher, Dykema Gossett PLLC & Theodore W. Seitz, Dykema
Gossett.
SALT RIVER: Court Narrows Claims in Ellis Antitrust Suit
--------------------------------------------------------
In the case, William Ellis, et al., Plaintiffs, v. Salt River
Project Agricultural Improvement and Power District, Defendant,
Case No. CV-19-01228-PHX-SMB (D. Ariz.), Judge Susan M. Brnovich of
the U.S. District Court for the District of Arizona granted in part
the District's Motion to Dismiss and Request for Judicial Notice.
The case arises out of the District's adoption of a new rate
structure for its sale of electricity, which includes additional
fees and different rates for residential customers, like the
Plaintiffs, who self-generate some of their electricity through
solar energy systems. In 2014, the District proposed the new rate
structure ("Standard Electric Price Plans" or "SEPPs"), which
includes a new E-27 price plan required for self-generating solar
customers, that its Board of Directors approved in 2015. The E-27
price plan applies to customers who began self-generating solar
power after Dec. 8, 2014. The Plaintiffs' claims relate to their
financial injuries caused by the SEPPs.
The Plaintiffs are four District residential customers who live in
Arizona and self-generate some of their electricity through
personal solar energy systems. Three Plaintiffs installed their
solar energy systems after the District adopted the SEPPs.
Specifically, Ellis, Dill, and Rupprecht installed solar energy
systems in May 2018, July 2018, and November 2016, respectively.
Rupprecht bought his home equipped with a solar energy system at an
unknown date.
The District and the "Association" are two distinct entities
comprising the Salt River Project Agricultural Improvement and
Power District ("SRP"), a power-and-water utility company in
central Phoenix, Arizona. Although the District is a political
subdivision of Arizona, it (1) is not recognized by the State of
Arizona or by any law as a regulator or regulatory authority in the
retail electricity market; (2) cannot impose ad valorem property
taxes or sales taxes or enact laws governing citizens' conduct; (3)
cannot administer normal governmental functions such as the
maintenance of streets, the operation of schools, or sanitation,
health or welfare services; (4) is not exempt from a city's
exercise of eminent domain, nor it is immune from tort liability;
and (5) can only levy taxes against its landowners. Unlike other
utility providers, the District's rates, rules, and regulations are
exempt from the control of Arizona's public utility regulator, the
Arizona Corporation Commission ("ACC").
The District provides electricity to around two million residential
and commercial customers including the Plaintiffs in central
Phoenix ("Market"). As the Plaintiffs allege, the District
provides over 95% of retail customers' electricity in the Market
through a variety of plans and sources. Individuals in the Market
can either purchase electricity from the District or self-generate
electricity through purchased or leased solar energy systems. The
District competes with solar energy system installers in the Market
to provide electricity and one of its executives allegedly referred
to solar energy systems, installers, and advocates as the enemy.
The SEPPs are aimed at maintaining the District's monopoly power;
impeding solar development despite its recognized benefits;
quashing competition for electricity from self-generating customers
with solar energy systems; and generating additional revenues for
the District through exploitation of its monopoly power. More
explicitly, the SEPPs make self-generating solar energy
uneconomical and force Market consumers to exclusively purchase the
District's electricity. Because the District previously encouraged
and even incentivized consumer investment in solar energy systems
until 2014, the Plaintiffs claim the District adopted and
advertised the SEPPs to deter individuals from investing in solar
energy systems and fortify its monopoly.
The Plaintiffs allege the SEPPs made it economically unfeasible for
customers to install solar energy systems. They further allege
there is no rational basis for adopting the SEPPs and the
District's reason of recouping fixed expenses required to service
post-2014 solar customers is pretextual. Beyond "public policy and
logic" warranting relief, the Plaintiffs claim the District's
anticompetitive, discriminatory, and unconstitutional conduct
warrants monetary, injunctive, and declaratory relief under a
variety of federal, state, and constitutional remedies. The
Plaintiffs allege the SEPPs violate (1) federal and state antitrust
law; (2) state-law price discrimination; (3) federal and state
equal protection; and (4) Arizona's Consumer Fraud Act.
The District requests judicial notice and moves to dismiss under
Federal Rule of Civil Procedure 12(b)(6).
Judge Brnovich holds that the District's defenses are availing to
the extent that they bar the Plaintiffs' state law and Fourteenth
Amendment equal protection claims and the Plaintiffs cannot recover
antitrust damages under the Sherman Act. More explicitly, the
filed-rate doctrine and state-action immunity are inapplicable. As
to the two residual claims that survive the District's defenses and
not barred as a matter of law (monopolization and attempted
monopolization under the Sherman Act), the FAC inadequately alleges
antitrust injury, which is an essential element under antitrust
law. If the Plaintiffs wish to file a second amended complaint to
fix the deficiencies as they relate to their antitrust claims under
the Sherman Act, they may do so within 30 days.
Accordingly, the Court granted the District's Motion, and dismissed
claims 1 and 2 with leave to amend and dismissed claims 3-9 without
leave to amend. The Court granted the District's Request as it
relates to judicially noticing Exhibit 1, but denied as to the
remaining exhibits. The Plaintiffs may file a Second Amended
Complaint. If the Plaintiffs fail to file an amended complaint
within 30 days of the Order, the Clerk of Court is directed to
terminate the action.
A full-text copy of the Court's Jan. 10, 2020 Order is available at
https://is.gd/4ok2VF from Leagle.com.
William Ellis, individually and on behalf of all others similarly
situated, Robert Dill, individually and on behalf of all others
similarly situated, Edward Rupprecht, individually and on behalf of
all others similarly situated & Robert Gustavis, individually and
on behalf of all others similarly situated, Plaintiffs, represented
by Alia M. Abdi -- alia.abdi@zimmreed.com -- Zimmerman Reed LLP,
pro hac vice, Daniel E. Gustafson -- dgustafson@gustafsongluek.com
-- Gustafson Gluek PLLC, pro hac vice, Daniel C. Hedlund --
dheldund@gustafsongluek.com -- Gustafson Gluek PLLC, pro hac vice,
Daniel J. Nordin -- dnordin@gustafsongluek.com -- Gustafson Gluek
PLLC, pro hac vice, David M. Cialkowski --
david.cialkowski@zimmreed.com -- Zimmerman Reed LLP, pro hac vice &
Hart Lawrence Robinovitch -- hart.robinovitch@zimmreed.com --
Zimmerman Reed PLLP.
Salt River Project Agricultural Improvement and Power District,
Defendant, represented by Christopher E. Babbitt --
CHRISTOPHER.BABBITT@WILMERHALE.COM -- Wilmer Cutler Pickering Hale
& Dorr LLP, pro hac vice, Daniel S. Volchok --
DANIEL.VOLCHOK@WILMERHALE.COM -- Wilmer Cutler Pickering Hale &
Dorr LLP, pro hac vice, David Gringer -
david.gringer@wilmerhale.com -- Wilmer Cutler Pickering Hale & Dorr
LLP, pro hac vice & Eric Dell Gere, Jennings Strouss & Salmon PLC.
Center for Biological Diversity, Movant, represented by Anchun Jean
Su, Center for Biological Diversity, pro hac vice & Howard M.
Crystal, Center for Biological Diversity, pro hac vice.
SANGAM INC: Andrade Sues Over Illegal SMS Ad Blasts
---------------------------------------------------
Jose Andrade, individually and on behalf of all others similarly
situated, Plaintiff, v. Sangam Inc., Defendant, Case No.
20-cv-00229, (C.D. Cal., February 4, 2020), seeks injunctive
relief, statutory and treble damages for violations of the
Telephone Consumer Protection Act.
Sangam operates as "Maxerly," a company that provides cash advance
services. Maxerly markets its cash advance services using
unsolicited, autodialed text messages sent en masse. Andrade has
never applied for cash advance services from Maxerly and has never
provided his consent to receive text messages in this manner, says
the complaint.[BN]
Plaintiff is represented by:
Rachel E. Kaufman, Esq.
KAUFMAN P.A.
400 NW 26th Street
Miami, FL 33127
Tel: (305) 469-5881
Email: kaufman@kaufmanpa.com
rachel@kaufmanpa.com
- and -
Robert R. Ahdoot, Esq.
Tina Wolfson, Esq.
Bradley K. King, SBN 274399
AHDOOT & WOLFSON, PC
10728 Lindbrook Drive
Los Angeles, CA 90024
Telephone: (310) 474-9111
Facsimile: (310) 474-8585
Email: rahdoot@ahdootwolfson.com
twolfson@ahdootwolfson.com
bking@ahdootwolfson.com
SAXE MANAGEMENT: Settlement in Bauman Suit Gets Prelim Approval
---------------------------------------------------------------
Judge Richard F. Boulware of the U.S. District Court for the
District of Nevada granted the Plaintiffs' Motion for Preliminary
Approval of Class Action Settlement, including the Parties'
Settlement Agreement and Release of Claims in the cases JEREMY
BAUMAN, individually and on behalf of all persons similarly
situated, Plaintiffs, v. DAVID SAXE, et al., Defendants. BIJAN
RAZILOU, et al., Plaintiffs, v. V THEATER GROUP, LLC, et al.,
Defendants, Case Nos. 2:14-cv-01125-RFB-BNW, 2:14-cv-01160-RFB-BNW
(D. Nev.).
The Agreement resolves all Released Claims against the Released
Parties.
Pursuant to Rule 23 of the Federal Rules of Civil Procedure, the
Judge conditionally certified for purposes of the Settlement only,
the following Settlement Class: All persons and entities to whom
Defendants attempted transmission of one or more text messages,
between and including April 1, 2013, to May 31, 2014, to a
telephone number assigned to a cell phone at the time of
transmission.
He appointed (i) Plaintiffs Jeremy Bauman and Bijan Razilou as the
Class Representatives; (ii) the law firms of Sound Justice Law
Group, PLLC; Mazie Slater Katz & Freeman, LLC; Bailey Kennedy, LLP;
Strategic Legal Practices, APC; and Marquis Aurbach Coffing, as the
Class Counsel; (iii) Albert H. Kirby of Sound Justice Law Group,
PLLC and Matthew Mendelsohn of Mazie Slater Katz & Freeman, LLC, as
the Lead Class Counsel; and (iv) Angeion Group as the Settlement
Administrator.
The Final Approval Hearing is set for June 25, 2020 at 10:30 a.m.
The Judge approved the Class Notice in the Settlement Agreement,
including the Long Form Notice, Email Notice, and Postcard Notice,
the Reminder Email Notice and the manner of providing Email Notice
and Postcard Notice to the Settlement Class Members described in
Section III of the Settlement Agreement. He directed the Parties
and the Settlement Administrator to complete all aspects of the
Notice Plan no later than March 27, 2020.
The Settlement Administrator will file with the Court by no later
than June 11, 2020, which is 14 days prior to the Final Approval
Hearing, proof that notice was provided in accordance with the
Agreement and the Order. No later than 10 calendar days before the
Final Approval Hearing, the counsel for the Defendants will file
with the Court one or more declarations stating that the Defendants
have complied with its notice obligations under 28 U.S.C. Section
1715.
Any Request for Exclusion must be postmarked no later than 90 days
from the date of entry of the Preliminary Approval Order.
Accordingly, the following are the deadlines by which certain
events must occur:
a. March 27, 2020 - Deadline for notice to be provided in
accordance with the Agreement and the Order (Notice Deadline) [30
days after the date of the Order]
b. May 5, 2020 - Deadline for filing of Plaintiff's Motion
for Attorneys' Fees and Costs and Service Award [39 days after the
Notice Deadline]
c. May 26, 2020 - Deadline to file objections or submit
requests for exclusion (Opt-Out and Objection Deadline) [60 days
after the Notice Deadline]
d. June 11, 2020 - Deadline to File Motion for Final Approval
[14 days Prior to Final Approval Hearing]
e. June 4, 2020 - Deadline for Settlement Administrator to
Provide Class Counsel with Proof of Class Notice, Identifying the
[7 Days Prior to Filing Motion for Final Number of Requests for
Exclusion, and Number of Approval] Objections Received
f. June 18, 2020 - Defendants Will File with the Court One or
More Declarations Stating that they have Complied with [7 Days
Prior to Final Approval Hearing] their Notice Obligations
g. June 25, 2020 at 10:30 a.m. in 7C - Final Approval Hearing
[No earlier than 120 days after Notice Deadline]
A full-text copy of the Court's Feb. 26, 2020 Order is available at
https://is.gd/vOiwkv from Leagle.com.
Bijan Razilou, Consol Plaintiff, represented by Amanda L. Stevens,
Bailey Kennedy, LLP, Dennis L. Kennedy, Bailey Kennedy, Matthew R.
Mendelsohn -- mmendelsohn@mazieslater.com -- Mazie Slater Katz &
Freeman, LLC, pro hac vice, Paul C. Williams --
PWilliams@BaileyKennedy.com -- Bailey Kennedy, LLP & Payam
Shahian,
Strategic Legal Practices, APC, pro hac vice.
Jeremy Bauman, Plaintiff, represented by Albert H. Kirby, Sound
Justice Law Group, PLLC, Candice Renka, Marquis & Aurbach, Phillip
S. Aurbach, Marquis & Aurbach & Michael David Maupin, c/o Marquis
Aurbach Coffing.
Saxe Management LLC, V Theater Group LLC & David Saxe, Defendants,
represented by James H. Corning -- jamescorning@dwt.com -- Davis
Wright Tremaine LLP, pro hac vice, Kenneth E. Payson --
kenpayson@dwt.com -- Davis Wright Tremaine LLP, pro hac vice &
Jeffrey A. Silvestri -- jsilvestri@mcdonaldcarano.com -- McDonald
Carano Wilson.
Saxe Theater, LLC, Defendant, represented by James H. Corning,
Davis Wright Tremaine LLP, pro hac vice & Kenneth E. Payson, Davis
Wright Tremaine LLP, pro hac vice.
Twilio, Inc., Defendant, represented by Adam Daniel Bowser --
adam.bowser@arentfox.com -- Arent Fox LLP, Michael Brian Hazzard,
Jones Day, Joel D. Henriod, Lewis Roca Rothgerber Christie LLP &
Kenneth E. Payson, Davis Wright Tremaine LLP.
David Saxe Productions, LLC & David Saxe Productions, Inc., Consol
Defendants, represented by Carrie McCrea Hanlon, Pyatt Silvestri &
Hanlon, Chtd., James H. Corning, Davis Wright Tremaine LLP, pro
hac
vice, Kenneth E. Payson, Davis Wright Tremaine LLP, pro hac vice &
Jeffrey A. Silvestri, McDonald Carano Wilson.
SEI INVESTMENTS: $6.8MM Stevens ERISA Suit Deal Gets Final Approval
-------------------------------------------------------------------
In the case, GORDON STEVENS, individually and as the representative
of a class of similarly situated person, and on behalf of the SEI
Capital Accumulation Plan, Plaintiff, v. SEI INVESTMENTS COMPANY,
et al., Defendants, Civil Action No. 18-4205 (E.D. Pa.), Judge
Nitza I. Quinonez Alejandro of the U.S. District Court for the
Eastern District of Pennsylvania granted the Plaintiff's unopposed
motion for final approval of class action settlement agreement and
a motion for approval of attorneys' fees, expenses and class
representative service award.
Stevens, on behalf of himself and all others similarly situated,
brought the class action against the Defendants, asserting claims
for breach of fiduciary duty under the Employee Retirement Income
Security Act ("ERISA"), relating to the SEI Capital Accumulation
Plan. In summary, the Plaintiff alleged that the Plan's
fiduciaries retained SEI-affiliated investments in the Plan that a
prudent and unbiased fiduciary would not have retained. The
Defendants denied the allegations and asserted various affirmative
defenses. During the parties' initial pretrial conference with the
Court, the parties agreed to engage in early mediation.
In preparation for the mediation, the parties engaged in focused
discovery, which included the production of more than 6,800 pages
of documents by the Defendants. The Plaintiff's counsel also
retained and consulted with an expert. In addition, the parties
exchanged written mediation statements outlining their factual and
legal positions. The parties then engaged in a full-day mediation
before Hunter R. Hughes, III, an experienced and well-respected
mediator who has successfully resolved numerous high-stakes class
actions, including those involving ERISA breach of fiduciary duty
claims. Although a settlement was not reached at the initial
mediation, the parties continued their settlement discussions
through the mediator. With the assistance of the mediator, the
parties eventually reached a settlement.
The Settlement Agreement provides substantial economic benefits to
the certified class. The Settlement creates a total settlement
fund of $6.8 million, to be reduced by any amount approved by the
Court for attorneys' fees and costs, administrative expenses, and a
class representative service award. Within 120 days after the
settlement effective date, the net settlement fund will be
distributed to the Class Members in proportion to their average
quarterly account balances.
The Current Plan participants will have their Plan accounts
automatically credited with their share of the Settlement Fund.
The Former Plan participants are required to submit a claim form,
which allows them to receive a direct payment by check or elect to
have their distribution rolled over into an individual retirement
account or other eligible employer plan. Under no circumstances
will any monies revert to SEI. Any uncashed checks will revert to
the Qualified Settlement Fund and will be paid to the Plan for the
purpose of defraying administrative fees and expenses of the Plan.
The Settlement also provides various prospective relief with
respect to the management of the Plan, which will benefit current
and future participants. As consideration for these settlement
benefits, Defendants will receive a mutual release of all claims
between the parties. Notably, an independent fiduciary found that
the terms of the release, including the release of claims by the
Plan, are reasonable.
By Order dated July 31, 2019, the Court granted preliminary
approval to the proposed Settlement and provisionally certified the
proposed class. Pursuant to the Court's Preliminary Approval
Order, Analytics Consulting, LLC was appointed to serve as the
Settlement Administrator. As part of its responsibilities,
Analytics sent notice to the relevant governmental officials under
the Class Action Fairness Act ("CAFA"), effected publication
notice, and sent direct notice to the Class Members in accordance
with the plan for notice. The Notice was mailed to 5,734
Settlement Class members. Of those notices, only 2.65% were
returned as undeliverable. One objection -- challenging the Class
Counsel's requested attorneys' fees and explicitly declining to
object to any terms of the settlement -- was received.
Pursuant to the terms of the Settlement, the Settlement was
submitted to an independent fiduciary for review following the
Court's preliminary approval order. After reviewing the Settlement
and other case documents, and interviewing counsel for each of the
parties, the Independent Fiduciary concluded that: (1) the
Settlement terms, including the scope of the release of claims, the
amount of cash received by the Plan, the non-monetary consideration
and the amount of any attorneys' fee award or any other sums to be
paid from the recovery, are reasonable in light of the Plan's
likelihood of full recovery, the risks and costs of litigation, and
the value of claims forgone; (2) the terms and conditions of the
transaction are no less favorable to the Plan than comparable
arm's-length terms and conditions that would have been agreed to by
unrelated parties under similar circumstances; and (3) the
transaction is not part of an agreement, arrangement or
understanding designed to benefit a party in interest.
Before the Court is a motion for final approval of class action
settlement agreement and a motion for approval of attorneys' fees,
expenses and class representative service award, filed by the
Plaintiff. A hearing was held on Dec. 18, 2019, at which the Court
heard oral argument on Plaintiff's unopposed motion for final
approval of the Settlement Agreement.
As compensation for their legal services and efforts, the Class
Counsel have requested that the Court approves the portion of the
settlement that provides for reimbursement of attorneys' fees in an
amount equal to one-third of the total settlement amount, or
$2,266,666, litigation expenses in the amount of $17,734.97, and
settlement administration expenses in the amount of $42,436.
The Class Counsel also seek the Court's approval of a Service
Award, in the amount of $20,000, to Plaintiff Stevens, for his
willingness to undertake the risks and the burden as a class
representative in the litigation.
Judge Alejandro finds (i) that the proposed class action settlement
is fair and reasonable; (ii) that the requirements of Rule 23 are
met and that certification of the proposed class is proper;
(iii)finds that the attorneys' fees, and the litigation and
administrative expenses listed by the Class Counsel are reasonable
and expected in this type of case; and (iv) the requested award is
well within the range of awards made in similar cases.
She, therefore, granted final approval of the proposed class action
settlement, awarded the Class Counsel reasonable attorneys' fees in
the amount of $2,266,666 and the reimbursement of litigation and
administrative expenses in the amount of $60,170.97, and awarded
the sum of $10,000 to the Class Representative, Gordon Stevens. An
Order consistent with the Memorandum Opinion follows.
A full-text copy of the Court's Feb. 26, 2020 Memorandum Opinion is
available at https://is.gd/zweTfr from Leagle.com.
GORDON STEVENS, INDIVIDUALLY AND AS THE REPRESENTATIVE OF A CLASS
OF SIMILARLY SITUATED PERSONS, AND ON BEHALF OF THE SEI CAPITAL
ACCUMULATION PLAN, Plaintiff, represented by PETER D. WINEBRAKE --
pwinebrake@winebrakelaw.com -- WINEBRAKE & SANTILLO, LLC, R. ANDREW
SANTILLO -- asantillo@winebrakelaw.com -- WINEBRAKE & SANTILLO,
LLC, BROCK SPECHT, NICHOLS KASTER, PLLP, CARL F. ENGSTROM --
cengstrom@nka.com -- NICHOLS KASTER, PLLP, CHLOE A. O'NEILL,
NICHOLS KASTER PLLP, KAI H. RICHTER -- krichter@nka.com -- NICHOLS
KASTER PLLP & PAUL J. LUKAS -- lukas@nka.com -- NICHOLS KASTER
PLLP.
SEI INVESTMENTS COMPANY, SEI INVESTMENTS MANAGEMENT CORPORATION,
SEI CAPITAL ACCUMULATION PLAN DESIGN COMMITTEE, SEI CAPITAL
ACCUMULATION PLAN INVESTMENT COMMITTEE & SEI CAPITAL ACCUMULATION
PLAN ADMINISTRATION COMMITTEE, Defendants, represented by HILLARY
E. AUGUST -- hillary.august@morganlewis.com -- MORGAN LEWIS &
BOCKIUS LLP, BRIAN T. ORTELERE -- brian.ortelere@morganlewis.com --
MORGAN LEWIS & BOCKIUS LLP, CHRISTOPHER VARANO, MORGAN, LEWIS &
BOCKIUS LLP & JEREMY P. BLUMENFELD --
jeremy.blumenfeld@morganlewis.com -- MORGAN, LEWIS & BOCKIUS LLP.
SPECTRUM PHARMACEUTICALS: Securities Suit Deal Has Prelim. Approval
-------------------------------------------------------------------
In the case, IN RE SPECTRUM PHARMACEUTICALS, INC. SECURITIES
LITIGATION, Case No. 2:16-cv-02279-RFB-EJY (D. Nev.), Judge Richard
F. Boulware, II of the U.S. District Court for the District of
Nevada granted the Lead Plaintiffs' Motion For Preliminary Approval
of Class Action Settlement.
The parties have entered into the Stipulation and Agreement of
Settlement, dated Nov. 6, 2019.
Pursuant to Rule 23(a) and (b)(3) of the Federal Rules of Civil
Procedure and for the purposes of the Settlement only, Judge
Boulware preliminarily certified the Action as a class action on
behalf of all Persons (including, without limitation, their
beneficiaries) and entities, other than Defendants and their
affiliates, who purchased or acquired Spectrum common stock
(including through the exercise of warrants or options, or other
form of issuance or options) and/or call options, and/or sold
Spectrum put options, during the period from Jan. 31, 2013 through
Sept. 16, 2016, both dates inclusive.
Pursuant to Rule 23 of the Federal Rules of Civil Procedure,
preliminarily and for the purposes of the Settlement only, the Lead
Plaintiffs are certified as the class representatives; and the Lead
Counsel, previously selected by the Lead Plaintiffs and appointed
by the Court, are appointed as the Lead Counsel.
The Judge preliminarily approved the Settlement, subject to further
consideration at a hearing pursuant to Federal Rule of Civil
Procedure 23(e), which is scheduled to be held before the Court on
July 22, 2020 at 11:00 a.m.
The Judge approved the form, substance and requirements of (a) the
Notice, (b) the Summary Notice and (c) the Proof of Claim and
Release Form, all of which are exhibits to the Settlement
Stipulation.
For settlement purposes only, Strategic Claims Services is
appointed and approved as the Claims Administrator. The Class
Counsel, through the Claims Administrator, will cause the Notice
and the Proof of Claim and Release Form within 16 calendar days of
the entry of the Order, to all Settlement Class Members who can be
identified with reasonable effort by the Class Counsel, through the
Claims Administrator.
The Escrow Agent may, at any time after entry of the Order and
without further approval from the Defendants or the Court, disburse
at the direction of the Class Counsel up to $250,000 from the
Settlement Fund prior to the Effective Date to pay Administrative
Costs. After the Effective Date, additional amounts, up to
$100,000, may be transferred from the Settlement Fund to pay for
any necessary additional Administrative Costs without further order
of the Court.
No later than seven calendar days after the date of the Order, the
Company will provide and/or cause its transfer agent to provide to
Class Counsel a list of the record owners of Spectrum common stock
during the Class Period in a usable electronic format, such as an
excel spreadsheet. This information will be kept confidential and
not used for any purpose other than to provide the notice
contemplated by the Order.
The Class Counsel, through the Claims Administrator, will make all
reasonable efforts to give notice to nominees or custodians who
held Spectrum common stock during the Class Period as record owners
but not as beneficial owners. Such nominees or custodians will,
within 10 calendar days of receipt of notice, either: (i) request
copies of the Notice and Proof of Claim and Release Form sufficient
to send to all beneficial owners for whom they are nominee or
custodian, and within 10 calendar days after receipt thereof send
copies to such beneficial owners; or (ii) provide the Claims
Administrator with lists of the names, last known addresses and
email addresses (to the extent known) of such beneficial owners, in
which event the Claims Administrator will promptly deliver the
Notice and Proof of Claim and Release Form to such beneficial
owners.
The Claims Administrator will, if requested, reimburse nominees or
custodians out of the Settlement Fund solely for their reasonable
out-of-pocket expenses, in an amount not to exceed $0.15 plus
postage at the current pre-sort rate used by the Claims
Administrator per Notice and Proof of Claim and Release Form; $0.05
per Notice and Proof of Claim and Release Form transmitted by
email; or $0.05 per name, address, and/or email address provided to
the Claims Administrator, which expenses would not have been
incurred except for the sending of such notice, and subject to
further order of the Court with respect to any dispute concerning
such reimbursement. Such expenses must be properly documented
supporting the expenses for which reimbursement is sought.
In order to be entitled to participate in recovery from the Net
Settlement Fund after the Effective Date, each Settlement Class
Member will take the following action and be subject to the
following conditions:
a. A properly completed and executed Proof of Claim and
Release Form must be submitted to the Claims Administrator, at the
Post Office Box indicated in the Notice, postmarked no later than
June 8, 2020 (44 calendar days prior to the Settlement Hearing).
b. Persons who timely submit a Proof of Claim and Release Form
that is deficient or otherwise rejected will be afforded a
reasonable time (at least 10 calendar days) to cure such deficiency
if it will appear that such deficiency may be cured. If any
Claimant whose claim has been rejected in whole or in part wishes
to contest such rejection, the Claimant must, within 10 calendar
days after the date of mailing of the notice, serve upon the Claims
Administrator a notice and statement of reasons indicating the
Claimant's ground for contesting the rejection along with any
supporting documentation, and requesting a review thereof by the
Court. If an issue concerning a claim cannot be otherwise
resolved, the Class Counsel will thereafter present the request for
review to the Court.
A Settlement Class Member wishing to make such request for
exclusion will file no later thatn July 1, 2020 (21 calendar days
prior to the Settlement Hearing).
Any Person that submits a request for exclusion may thereafter
submit to the Claims Administrator a written revocation of that
request for exclusion, provided that it is received no later than
two Business Days before the Settlement Hearing, in which event
that Person will be included in the Settlement Class. All Persons
who submit a valid, timely and unrevoked request for exclusion will
be forever barred from receiving any payments from the Net
Settlement Fund.
The Court will consider comments and/or objections to the
Settlement, the Plan of Allocation, or the Fee and Expense
Application that are filed at least 21 calendar days prior to the
Settlement Hearing Date. All papers in support of the Settlement,
the Plan of Allocation and/or the Fee and Expense Application will
be filed and served no later than 28 calendar days before the
Settlement Hearing. Any submissions filed in response to any
objections or in further support of the Settlement, the Plan of
Allocation and/or the Fee and Expense Application will be filed no
later than seven calendar days prior to the Settlement Hearing.
A full-text copy of the Court's Feb. 19, 2020 Order is available at
https://is.gd/geCzVn from Leagle.com.
Olutayo Ayeni, Consol Plaintiff, represented by Laurence M. Rosen
-- lrosen@rosenlegal.com -- The Rosen Law Firm, P.A. & William Ginn
-- bill@levertylaw.com -- Leverty & Associates, Chtd.
Michael Bestwick & Mark Hawkins, Movants, represented by Laurence
M. Rosen, The Rosen Law Firm, P.A., pro hac vice, Peretz Bronstein,
Bronstein, Gewirtz and Grossman, LLC, Phillip Kim, The Rosen Law
Firm, pro hac vice, Shimon Yiftach, Bronstein Gewirtz & Grossman
LLC, Gonen Haklay, The Rosen Law Firm, P.A., pro hac vice, Jacob A.
Goldberg, The Rosen Law Firm, P.A., pro hac vice, Leah Heifetz-Li,
The Rosen Law Firm, P.A., pro hac vice, Patrick R. Leverty, Leverty
& Associates Chtd & William Ginn, Leverty & Associates, Chtd.
Anchorage Police & Fire Retirement System, Movant, represented by
Griffith H. Hayes, Litchfield Cavo LLP & Javier Bleichmar,
Bleichmar Fonti & Auld LLP.
Spectrum Pharmaceuticals, Inc., Defendant, represented by Raymond
Stockstill -- beaustockstill@paulhastings.com -- Paul Hastings LLP,
pro hac vice, Tamara Beatty Peterson -- tpeterson@petersonbaker.com
-- Peterson Baker, PLLC & Christopher H. McGrath --
chrismcgrath@paulhastings.com -- Paul Hastings LLP, pro hac vice.
Rajesh Shrotriya, Defendant, represented by Bradley T. Austin,
Snell & Wilmer LLP, Patrick Gerard Byrne, Snell & Wilmer, Alison
Clare Jordan, Fenwick & West LLP, pro hac vice, Jay L. Pomerantz,
Fenwick & West LLP & Kevin Peter Muck, Fenwick & West LLP, pro hac
vice.
Kurt A Gustafson & Joseph K. Keller, Consol Defendants, represented
by Tamara Beatty Peterson, Peterson Baker, PLLC & Christopher H.
McGrath, Paul Hastings LLP, pro hac vice.
Joseph Turgeon & Lee Allen, Consol Defendants, represented by
Raymond Stockstill, Paul Hastings LLP, pro hac vice, Tamara Beatty
Peterson, Peterson Baker, PLLC & Christopher H. McGrath, Paul
Hastings LLP, pro hac vice.
SPRINT COMMUNICATIONS: Summary Judgment Bid in Gorss Partly Granted
-------------------------------------------------------------------
In the case, GORSS MOTELS INC., Plaintiff, v. SPRINT COMMUNICATIONS
COMPANY, L.P. et al., Defendants, Case No. 3:17-cv-546 (JAM) (D.
Conn.), Judge Jeffrey Alker Meyer of the U.S. District Court for
the District of Connecticut granted in part and denied in part
Sprint's motion for summary judgment.
The Junk Fax Prevention Act is one of many federal consumer
protection laws, and it generally prohibits the transmission of
unsolicited advertising faxes while allowing for a private right of
action against its violators. Connecticut has its own similar
statute.
Gorss has filed the lawsuit against Sprint alleging claims under
both these laws stemming from nine fax advertisements that Gorss
received from 2013 to 2015. Gorss' lawsuit against Sprint is among
many junk fax lawsuits that Gorss has filed against multiple
defendants in the District and elsewhere.
Gorss entered into a 20-year franchise agreement in 1988 to operate
a Super 8 motel in Cromwell, Connecticut. The Super 8 motels were
a subsidiary of the Wyndham Hotel Group. The parties amended the
franchise agreement in 2009 to extend the franchise to 2014, and
then in September 2014 they entered into a new franchise agreement
extending the term of the franchise until the end of Gorss' motel
business in 2016.
Gorss had one fax machine, located behind the front desk of the
motel, and furnished its fax number to Wyndham in the course of its
regular franchise business dealings. Its fax number was also
published in a Super 8 motel directory. Sprint was one of
Wyndham's approved suppliers for its motel franchises, and Gorss
used Sprint Communications Co. (an affiliate of Defendant Sprint
Solutions Inc.) for its long-distance telephone services.
On various dates from April 2013 to August 2015, Gorss received
nine faxes that advertised Sprint's telephone products and
services. Four of these faxes came from a telephone number
(646-448-8111) that was assigned to Sprint. These four faxes did
not contain any information about how Gorss might "opt out" from
receiving more faxes.
The other five were sent from a telephone number that was operated
by a company known as Westfax, Inc., which had a relationship with
Wyndham and which sent the faxes as part of Wyndham's promotional
activities on behalf of its approved suppliers like Sprint. In
contrast to the four faxes that came from a number assigned to
Sprint, these five faxes from Westfax, Inc. included advisories
about how Gorss could opt out from receiving such faxes.
Gorss filed the class action lawsuit in 2017 alleging that the nine
faxes it received were sent in violation of both federal and state
junk fax prevention laws. Sprint now moves for summary judgment.
It argues that all nine of the faxes at issue were not "unsolicd"
and therefore fall outside the scope of the federal Junk Fax
Prevention Act.
Judge Meyer granted in part and denied in part Sprint's motion for
summary judgment. Summary judgment is granted as to all claims
under the Connecticut junk fax statute. Summary judgment is denied
as to all claims under the federal Junk Fax Prevention Act.
Among other things, Judge Meyer finds that the Connecticut General
Assembly could have drafted the statute to include not only persons
who use a machine to send junk faxes but those who cause others to
do so on their behalf. It did so -- but only for emails, not
faxes. The very next subsection of the Connecticut statute,
penalizing junk email, provides in relevant part that no person
will send unsolicited advertising material by electronic mail, or
cause such material to be sent by electronic mail. The Connecticut
junk fax statute conspicuously lacks this sweeping language, and
therefore it should be limited to its terms. Accordingly, Judge
Meyer granted Sprint's motion for summary judgment to dismiss all
of Gorss' claims under the Connecticut junk fax statute.
The parties will submit a joint status report and proposed case
schedule within 14 days.
A full-text copy of the Court's Feb. 19, 2020 Order is available at
https://is.gd/H4V362 from Leagle.com.
Gorss Motels Inc., a Connecticut corporation, individually and as
the representative of a class of similarly situated persons,
Plaintiff, represented by Aytan Y. Bellin --
Aytan.Bellin@bellinlaw.com -- Bellin & Associates, LLC & Ryan
Michael Kelly -- rkelly@andersonwanca.com -- Anderson & Wanca.
Sprint Solutions, Inc., a Delaware corporation, Defendant,
represented by Tammy L. Adkins -- tadkins@mcguirewoods.com --
McGuire Woods LLP, pro hac vice, Jeffrey J. White -- jwhite@rc.com
-- Robinson & Cole, LLP & Kathleen Elizabeth Dion -- Kdion@rc.com
-- Robinson & Cole, LLP.
STARBUCKS CORP: Adams Hits Coffee Dilution on Large Size Servings
-----------------------------------------------------------------
Teresa Adams, individually and on behalf of all others similarly
situated, Plaintiffs, v. Starbucks Corporation and Does 1 through
50, inclusive, Defendant, Case No. 20-cv-00225, (C.D. Cal.,
February 4, 2020), seeks redress for violations of California's
Unfair Competition Laws, Business and Professions Code, False
Advertising Laws and Consumer Legal Remedies Act.
Starbucks is a prominent coffee roaster and retailer with over
24,000 retail stores in 70 different countries. Adams alleges that
Starbucks misrepresented that the larger, Venti-sized select hot
espresso beverages contained more espresso, and therefore, more
caffeine, than their smaller Grande-sized equivalent. Adams
contests that the larger container is merely diluted to increase
its volume to fill up a larger cup. [BN]
Plaintiff is represented by:
Todd D. Carpenter, Esq.
(Eddie) Jae K. Kim, Esq.
Scott G. Braden, Esq.
CARLSON LYNCH SWEET KILPELA & CARPENTER, LLP
1350 Columbia Street, Suite 603
San Diego, CA 92101
Tel: (619) 762-1910
Fax: (619) 756-6991
Email: tcarpenter@carlsonlynch.com
ekim@carlsonlynch.com
sbraden@carlsonlynch.com
STATE FARM MUTUAL: Clemons Sues Over Illegal Telemarketing Calls
----------------------------------------------------------------
Sherry L. Clemons on behalf of herself and others similarly
situated, Plaintiff, v. State Farm Mutual Automobile Insurance
Company, Defendant, Case No. 20-cv-01050 (C.D. Ill., February 3,
2020), seeks injunctive relief, statutory damages and any other
available legal or equitable remedies for violations of the
Telephone Consumer Protection Act.
State Farm is the parent company of a series of interrelated
insurance and financial services companies. It made telemarketing
calls to Clemons' phone without her prior express written consent,
says the complaint. Clemons is on the National Do-Not-Call
Registry. [BN]
The Plaintiff is represented by:
Michael J. Boyle, Jr., Esq.
Matthew R. Wilson, Esq.
MEYER WILSON CO., LPA
1320 Dublin Road, Suite 100
Columbus, OH 43215
Telephone: (614) 224-6000
Facsimile: (614) 224-6066
Email: mboyle@meyerwilson.com
mwilson@meyerwilson.com
- and -
Anthony Paronich, Esq.
PARONICH LAW, P.C.
350 Lincoln Street, Suite 2400
Hingham, MA 02043
Tel: (617) 485-0018
Fax: (508) 318-8100
Email: anthony@paronichlaw.com
TELEFONAKTIEBOLAGET LM: Second Amended Securities Suit Dismissed
----------------------------------------------------------------
In the case, OKLAHOMA LAW ENFORCEMENT RETIREMENT SYSTEM et al.,
Plaintiffs, v. TELEFONAKTIEBOLAGET LM ERICSSON et al., Defendants,
Case No. 18-CV-3021 (JMF) (S.D. N.Y.), Judge Jesse M. Furman of the
U.S. District Court for the Southern District of New York granted
the Defendants' motion pursuant to Rules 9(b) and 12(b)(6) of the
Federal Rules of Civil Procedure, to dismiss the Second Amended
Complaint.
Ericsson is a Swedish company that provides hardware and services
for telecommunications networks. In the putative securities fraud
class action, investors allege that Ericsson and several of its
senior executive officers and directors made false and misleading
statements and omissions about the company's financial performance,
accounting practices, internal controls, and policies related to
certain long-term service contracts.
Ericsson is a public company, incorporated and headquartered in
Sweden and traded on the NASDAQ, that provides networking hardware
and services to telecommunications companies, like cellular phone
providers, around the world. In connection with its long-term
service contracts, Ericsson allegedly engaged in four business and
accounting practices relevant in case. First, Ericsson entered
into long-term "loss-leading contracts" -- contracts that Ericsson
entered into with the understanding that they were going to lose
money, but undertook anyway to gain market share. Second, Ericsson
underestimated -- or "under-scoped" -- the costs of long-term
service contracts in order to win project bids. Third, the
Complaint alleges that Ericsson delayed recognizing costs that it
incurred by "pushing" them onto the accounting books for later
financial quarters. Fourth, the Plaintiffs assert that Ericsson
prematurely recognized revenues in its accounting.
The Plaintiffs allege that, without disclosing these four
practices, Ericsson regularly reported its financial results.
Ericsson also made a variety of affirmative statements related to
its contracts, accounting practices, and internal controls.
On April 5, 2018, the Plaintiffs filed the lawsuit, alleging that
the Defendants violated Sections 10(b) and 20(a) of the Securities
Exchange Act of 1934, and Rule 10b-5 promulgated thereunder.
The Defendants now move to dismiss the Second Amended Complaint.
The Plaintiffs seek to hold all the Defendants liable for
securities fraud under Section 10(b) and Rule 10b-5 and to hold the
individual Defendants liable as "control persons" under Section
20(a). To state a claim for relief under Section 10(b) and Rule
10b-5 (and by extension, a claim under Section 20(a)), a plaintiff
must plausibly allege "(1) a material misrepresentation or omission
by the defendant; (2) scienter; (3) a connection between the
misrepresentation or omission and the purchase or sale of a
security; (4) reliance upon the misrepresentation or omission; (5)
economic loss; and (6) loss causation."
For a variety of reasons, Judge Furman holds that the Plaintiffs'
claims fail to satisfy these requirements. The Court first
addresses the Plaintiffs' main allegations -- those concerning
Ericsson's financial reporting and stated accounting practices --
and then turns to the Plaintiffs' remaining allegations.
The Court finds that the Plaintiffs fail to adequately allege that
any of the Defendants' alleged statements about its financial
results or accounting practices were false in light of the alleged
practices of entering into loss-leading and under-scoped contracts.
In addition, they fail to allege that such statements, even if
false, were made with the requisite scienter. Accordingly, these
claims must be and are dismissed.
Next, the Court finds that the Plaintiffs fail to adequately allege
that any of the Defendants' alleged statements about its financial
results or accounting practices were false because of the alleged
practices of prematurely recognizing revenues and delaying
recognition of costs. In addition, they fail to allege that such
statements, even if false, were made with scienter. Accordingly,
these claims must be and are dismissed as well.
The Plaintiffs' remaining claims also fail as a matter of law, for
various reasons, the Court holds. First, the Plaintiffs allege a
series of misrepresentations that are not actionable because they
are expressions of puffery and corporate optimism. Second, the
Plaintiffs allege a series of misrepresentations that fall under
the PSLRA's safe harbor for forward-looking statements and the
judicial "bespeaks caution" doctrine. Third, they allege a
misrepresentation that is not actionable because it qualifies as an
opinion. Fourth, the Plaintiffs identify a series of
misrepresentations for which they do not adequately allege falsity.
Fifth, the Plaintiffs target the Defendants' Sarbanes-Oxley Act
("SOX") certifications, but these claims must be dismissed because
the Plaintiffs fail to allege any particularized facts pertaining
to the Company's internal structure for financial controls.
Finally, the Plaintiffs' clear failure to plead scienter dooms
their claims based on the Defendants' failure to disclose its four
business practices, as well as the Feed the Gorilla and Bare Bone
Tender Scoping policies.
Based on the foregoing, Judge Furman concludes that the Plaintiffs'
Section 10(b) and Rule 10b-5 claims must be and are dismissed. It
follows that their Section 20(a) claim fails as well. The Court
need not and does not reach the Defendants' other arguments for
dismissal, including their contention that the Court lacks personal
jurisdiction over the individual Defendant Mellander.
The Plaintiffs request leave to amend. The Court is skeptical that
the Plaintiffs will be able to allege additional facts sufficient
to cure the defects identified. Nevertheless, the Court recognizes
that there is a strong preference for granting leave to amend in
securities cases, such as this one, that involve "a complex
commercial reality" and a "long, multi-prong complaint."
Accordingly, out of an abundance of caution, leave to amend is
granted. No further opportunities to amend the Complaint to
address the issues raised in the motion to dismiss will be given.
A full-text copy of the District Court's Jan. 10, 2020 Opinion &
Order is available at https://is.gd/LLeiSb from Leagle.com.
Oklahoma Law Enforcement Retirement System, Lead Plaintiff,
represented by David Avi Rosenfeld -- DRosenfeld@rgrdlaw.com --
Robbins Geller Rudman & Dowd LLP, Joseph Frank Russello --
jrussello@rgrdlaw.com -- Robbins Geller Rudman & Dowd LLP, William
John Geddish -- wgeddish@rgrdlaw.com -- Robbins Geller Rudman &
Dowd LLP & Samuel Howard Rudman -- SRudman@rgrdlaw.com -- Robbins
Geller Rudman & Dowd LLP.
Bristol County Retirement System, Individually and on Behalf of All
Others Similarly Situated, Plaintiff, represented by Francis Paul
McConville -- fmcconville@labaton.com -- Labaton & Sucharow LLP &
Christopher J. Keller -- ckeller@labaton.com -- Labaton Sucharow,
LLP.
Greater Pennsylvania Carpenters' Pension Fund, Movant, represented
by Carol Cecilia Villegas, Labaton & Sucharow LLP, Christopher J.
Keller, Labaton Sucharow, LLP, Jake E. Bissell-Linsk, Labaton &
Sucharow LLP, Joseph Frank Russello, Robbins Geller Rudman & Dowd
LLP & Samuel Howard Rudman, Robbins Geller Rudman & Dowd LLP.
Telefonaktiebolaget LM Ericsson, Hans Vestberg, Jan Frykhammar,
Magnus Mandersson, Borje E. Ekholm & Carl Mellander, Defendants,
represented by Brad Scott Karp -- bkarp@paulweiss.com -- Paul
Weiss, Daniel Jonathan Kramer -- dkramer@paulweiss.com -- Paul
Weiss, Susanna Michele Buergel -- sbuergel@paulweiss.com -- Paul
Weiss & Maxwell Arlie Halpern Kosman -- mkosman@paulweiss.com --
Paul, Weiss, Rifkind, Wharton & Garrison.
TRADESMEN INTERNATIONAL: Class Claims Stricken in Glass Suit
------------------------------------------------------------
Judge Pamela A. Barker of the U.S. District Court for the Northern
District of Ohio, Eastern Division, (i) granted McClone's Motion to
Join Pending Dispositive Motions; (ii) denied the Plaintiffs'
Motion to Remand, or, in the Alternative for Expedited Discovery
Regarding Prospective Class; (iii) granted Tradesmen's Motion to
Dismiss or Strike Plaintiffs' Class Claims; and (iv) granted in
part Tradesmen's Motion to Compel Individual Arbitration and to
Dismiss the Claims of Plaintiffs Masiella and Glass in the case
captioned JENNIFER GLASS, et al., Plaintiffs, v. TRADESMEN
INTERNATIONAL, LLC, et al., Defendants, Case No. 5:19-CV-01331
(N.D. Ohio)
Tradesmen describes itself as a staffing company that specializes
in providing skilled and experienced craft professionals to
employers throughout the United States and Canada. It is a
Delaware limited liability company, but maintains its corporate
headquarters in Macedonia, Ohio.
The Plaintiffs are all former Tradesmen employees that worked in
various positions in the company between 2004 and 2017. They each
claim that they were subjected to severe discrimination and sexual
harassment while they were employed by Tradesmen.
In particular, Masiella and Reese allege that their supervisor,
McClone, harassed and unfairly targeted them for negative treatment
after they rebuffed his sexual advances and that Tradesmen took no
action against him despite their complaints to Tradesmen's Human
Resources and other upper-level executives. Masiella claims that
she was forced to take another position for less pay at Tradesmen
in order to get away from McClone, but the new position was not
sustainable, and she ended up leaving Tradesmen. Reese claims
McClone eventually fired her for not having sex with him and for
complaining to Human Resources about his behavior.
Glass does not make any specific allegations against McClone, but
asserts that her male colleagues, managers, and even senior
executives would frequently remark on her dress, her breasts, and
other parts of her body, tell obscene and sexually-charged jokes,
and engage in sexual innuendo that had the effect of objectifying
women. Glass also claims that she was groped by her superiors and
denied promotions because she was a woman. According to Glass, she
left Tradesmen after learning that Tradesmen had begun to search
for someone to replace her and that she was going to lose her job.
The Plaintiffs assert that similar unlawful conduct and
differential treatment between male and female employees occurs as
a pattern and practice throughout all of Tradesmen's offices.
On Oct. 7, 2016, while Masiella and Glass were still employed at
Tradesmen, Tradesmen emailed an Employment Arbitration Agreement to
all employees with active Tradesmen email addresses, including
Masiella and Glass. On Oct. 11, 2016, Tradesmen sent a follow-up
email containing the Arbitration Agreement to all Tradesmen
employees with active email addresses who did not open the earlier
email sent on Oct. 7, 2016, including Masiella.
Tradesmen's records show that both Masiella and Glass received and
opened an email containing the Arbitration Agreement. Tradesmen
utilizes software that, among other things, allows it to track
activity associated with sent emails and to generate reports
reflecting that activity. It utilized the software on Oct. 7,
2016, when it sent the Arbitration Agreement to Glass, and it
utilized the software on Oct. 11, 2016, when it sent the
Arbitration Agreement to Masiella. According to Tradesmen's
records, Glass opened the Oct. 7, 2016 email containing the
Arbitration Agreement 15 times -- nine times on Oct. 7, 2016, five
times on Oct. 9, 2016, and one time on Oct. 10, 2016. In addition,
Masiella opened the Oct. 11, 2016 email containing the Arbitration
Agreement 23 times -- 21 times on Oct. 12, 2016, one time on Oct.
13, 2016, and one time on Nov. 14, 2016.
Neither Masiella nor Glass dispute that they received the
Arbitration Agreement in October 2016. Subsequently, Glass did not
submit an Opt-Out Form and continued her employment with Tradesmen
through the first week of November 2016. However, Glass contends
that although she continued to work for Tradesmen through the first
week of November 2016, she had already accepted a job from a new
employer prior to the Oct. 21, 2016 deadline for opting out of the
Arbitration Agreement.
Masiella continued her employment with Tradesmen through
approximately Jan. 27, 2017. According to Tradesmen's former
Director of Human Resources, Jeannie Woodall, Masiella did not
return an Opt-Out Form and does not appear on a spreadsheet that
tracked which employees had submitted an Opt-Out Form. In
contrast, Masiella contends that, before Oct. 21, 2016, she
executed an Opt-Out Form, brought it into Tradesmen, and
hand-delivered it to Woodall. Masiella claims that Woodall
accepted the Opt-Out Form from her and at no time stated that
Masiella needed to mail the form to her. Masiella asserts that she
chose to opt out of the Arbitration Agreement after consulting her
husband, who told her to sign the Opt-Out Form and that he had
faced a similar situation at a previous employer.
On May 10, 2019, the Plaintiffs filed a Class Action Complaint
against Tradesmen and McClone in the Court of Common Pleas of
Summit County, Ohio. In the Complaint, the Plaintiffs assert
claims on behalf of themselves and a putative class of female
employees against Defendants for gender discrimination, sexual
harassment/hostile work environment, retaliation, and aiding and
abetting discrimination in violation of the Ohio Civil Rights Act.
They define the proposed class as "all females who are, have been,
or will be employed by Tradesmen during the applicable liability
period until the date of judgment."
On June 10, 2019, Tradesmen removed the suit to the Court,
asserting that federal jurisdiction exists pursuant to the Class
Action Fairness Act. Shortly thereafter, on June 17, 2019,
Tradesmen filed its Motion to Strike Class Claims, seeking to
dismiss or strike Plaintiffs' class claims for a variety of
reasons. On the same day, Tradesmen also filed its Motion to
Compel Arbitration, requesting an order compelling individual
arbitration and dismissing the claims of Glass and Masiella.1
On July 1, 2019, the Plaintiffs filed their Motion to Remand.
Based on certain exceptions to CAFA jurisdiction, they claim that
the Court either lacks subject matter jurisdiction entirely or
should decline to accept such jurisdiction. They also sought
limited discovery regarding prospective class members in support of
their position that an exception to CAFA jurisdiction applies in
this case. On Aug. 19, 2019, the Court granted the Plaintiffs'
request for expedited discovery regarding the prospective class
members and permitted both parties to submit supplemental briefs
once discovery was completed, which Plaintiffs and Tradesmen did on
Oct. 3, 2019 and Oct. 17, 2019, respectively.
The Plaintiffs do not challenge the fact that Tradesmen has
established the jurisdictional requirements under CAFA. There is
no dispute that minimal diversity of citizenship exists, that the
proposed class includes at least 100 members, and that the
aggregate amount in controversy exceeds $5 million. Instead, the
Plaintiffs contend that two exceptions under CAFA warrant remand --
local controversy nor the interests of justice exceptions to CAFA
jurisdiction.
Judge Barker finds that the Plaintiffs have failed to establish
that two-thirds of the members of the class are citizens of Ohio,
and thus have failed to meet their burden to show that the local
controversy exception applies. The class definition in the
Plaintiffs' Complaint unambiguously sets forth a nationwide class
consisting of all female Tradesmen employees, and that it is the
relevant definition for purposes of determining whether CAFA
jurisdiction exists. Again, the Plaintiffs provide no evidence
that demonstrates that one-third of the class members under the
definition are citizens of Ohio. Because neither the local
controversy nor the interests of justice exceptions to CAFA
jurisdiction are applicable to the Plaintiffs' class action, the
Judge denies the Plaintiffs' Motion to Remand.
Tradesmen moves to dismiss the Plaintiffs' class claims pursuant to
Rule 12(b)(6) or, in the alternative, to strike their class
allegations pursuant to Rules 12(f) and 23(d)(1)(D) because their
proposed nationwide class of Tradesmen employees (1) cannot be
maintained because the Ohio Civil Rights Act does not apply
extraterritorially, (2) applying Ohio law nationwide would violate
the Erie doctrine, and (3) applying Ohio law nationwide would
violate the Commerce Clause.
Judge Barker finds that all of the Plaintiffs' claims are based on
the Ohio Civil Rights Act, and they concede that the Ohio Civil
Rights Act only covers claims that are based on conduct tied to
Ohio. Yet, the Plaintiffs' Complaint seeks to certify a nationwide
class of female Tradesmen employees, which includes employees who
are employed outside of Ohio, many of whom have apparently never
traveled to Ohio in connection with their employment. The
Plaintiffs cannot impose the Ohio Civil Rights Act on Tradesmen
employees with no connection to Ohio, and striking Plaintiffs'
class allegations is thus appropriate. Moreover, the application
of the Ohio Civil Rights Act to a nationwide class of female
Tradesmen employees would raise serious constitutional concerns.
Accordingly, the Judge finds that a nationwide class may not be
certified for the Plaintiffs' claims and strikes their class
allegations.
The sole issue in dispute in the case is whether the parties agreed
to arbitrate. Tradesmen contends that it entered into valid
agreements to arbitrate with Glass and Masiella, while the
Plaintiffs contend that the Arbitration Agreement lacks valid
consideration and that neither Glass nor Masiella accepted the
Arbitration Agreement. The Plaintiffs also request expedited
discovery and an evidentiary hearing, if necessary, to determine
whether the Arbitration Agreement should be enforced.
Judge Barker finds (i) that the Arbitration Agreement does not fail
for lack of consideration; and (ii) a genuine issue of material
fact exists with respect to whether Masiella opted out of the
Arbitration Agreement. As such, the validity of the Arbitration
Agreement is in issue, and an evidentiary hearing is required.
For the reasons she set forth, Judge Barker granted McClone's
Motion to Join. She denied the Plaintiffs' Motion to Remand.
The Judge granted Tradesmen's Motion to Strike Class Claims. The
class allegations in the Plaintiffs' Complaint are stricken. The
Plaintiffs are granted leave to amend their Complaint within 30
days of the Order.
The Judge granted in part Tradesmen's Motion to Compel Arbitration.
Glass' claims are dismissed. She ordered Glass and the Defendants
to arbitration pursuant to the terms of the Arbitration Agreement.
She deferred ruling on Tradesmen's Motion to Compel Arbitration
with respect Masiella until the completion of an evidentiary
hearing to determine whether there exists an enforceable
arbitration agreement between Masiella and Tradesmen. Accordingly,
an evidentiary hearing is set on April 14, 2020 at 1:30 p.m. The
parties may conduct discovery prior to the hearing on issues
relevant to the existence of an enforceable arbitration agreement
between Masiella and Tradesmen. All written discovery requests
must be issued within seven days from the date of the Order, and
responses are due within 14 days after service of the request. All
depositions must be completed prior to the evidentiary hearing.
A full-text copy of the Court's Feb. 19, 2020 Order is available at
https://is.gd/eV4irr from Leagle.com.
Jennifer Glass, Kristie Masiella & Tracy Reese, Plaintiffs,
represented by Bradley A. Sherman -- bradley@shermanboseman.com --
Sherman Boseman Legal Group & F. Allen Boseman, Jr. --
allen@shermanboseman.com -- Sherman Boseman Legal Group.
Tradesmen International, LLC, Defendant, represented by Gerald L.
Maatman, Jr. -- gmaatman@seyfarth.com -- Seyfarth Shaw, Jennifer A.
Riley -- jriley@seyfarth.com -- Seyfarth Shaw & Christina M. Janice
-- cjanice@seyfarth.com -- Seyfarth Shaw.
Matthew McClone, Defendant, represented by Vincent T. Norwillo, Law
Office of Vincent T. Norwillo.
TRANSCARE CORP: Partial Summary Judgment Granted in Ien's Suit
--------------------------------------------------------------
In the case, In re: TRANSCARE CORP., et al., Chapter 7, Debtors.
SHAMEEKA IEN on behalf of herself and all Others similarly
situated, Plaintiff, v. TRANSCARE CORP., TRANSCARE NEW YORK, INC.,
TRANSCARE ML, INC., TC AMBULANCE GROUP, INC., TRANSCARE MANAGEMENT
SERVICES, INC., TCBA AMBULANCE, INC., TC BILLING AND SERVICES
CORP., TRANSCARE WESTCHESTER, INC., TRANSCARE MARYLAND, INC., TC
AMBULANCE NORTH, INC., TRANSCARE HARFORD COUNTY, INC., LYNN TILTON,
ARK II CLO 2001-1 LIMITED, ARK INVESTMENT PARTNERS II, L.P.,
PATRIARCH PARTNERS, LLC, and PATRIARCH PARTNERS III, LLC,
Defendants, Case No. 16-10407 (SMB) (Jointly Administered), Adv.
Proc. No. 16-01033 (S.D. N.Y.), Judge Stuart M. Bernstein of the
U.S. Bankruptcy Court for the Southern District of New York granted
in part and denied in part the Plaintiff's Motion for Partial
Summary Judgment dated May 21, 2019.
The class action concerns claims under the Worker Adjustment and
Retraining Notification Act ("US WARN Act"), and the New York
Worker Adjustment and Retraining Notification Act ("NY WARN Act"),
New York Labor Law ("NYLL") Section 860 et seq., as well as unpaid
wages under various state laws.
At all relevant times prior to Feb. 24, 2016, TransCare and its
subsidiaries provided ambulance and paratransit transportation
services in New York, Pennsylvania, and Maryland. The subsidiaries
included TransCare New York, Inc., TransCare ML, Inc., TC Ambulance
Group, Inc., TransCare Management Services, Inc., TCBA Ambulance,
Inc., TC Billing and Services Corp., TransCare Westchester, Inc.,
TransCare Maryland, Inc., TransCare Harford County, Inc., and TC
Ambulance North, Inc. ("Initial Debtors") and
TransCarePennsylvania, Inc., TC Ambulance Corporation, and TC
Hudson Valley Ambulance Corp. ("Subsequent Debtors").
Facing financial problems, TransCare and those who controlled it
embarked on a restructuring plan. They would terminate the
operations of the Initial Debtors and continue the operations of
the Subsequent Debtors through the foreclosure of their assets and
the assignment of those assets to two new entities: Transcendence
Transit, Inc. and Transcendence Transit II, Inc. Under this plan,
approximately 700 employees of the Subsequent Debtors would
continue to work for Transcendence and it would be business as
usual.
On Feb. 24, 2016, the Initial Debtors filed for bankruptcy under
chapter 7 of the Bankruptcy Code in the Court, and Salvatore
LaMonica, Esq. was appointed chapter 7 trustee. Earlier that day,
the employees of the Initial Debtors had received an email ("First
February 24 Notice") that described the plan just mentioned. After
explaining that the paratransit and Pittsburgh and Hudson Valley
ambulance businesses would continue to operate through
Transcendence and save 700 jobs.
The First February 24 Notice was issued by Glen Youngblood, a
TransCare vice president, and signed "From the TransCare Management
Team" but contained no contact information. Later that same day,
after the Initial Debtors had filed their chapter 7 cases,
Youngblood drafted an "update" ("Second February 24 Notice") which
was apparently sent to all employees and held out the hope of
continued employment with the Initial Debtors for an indefinite
period.
The email was also signed by "The TransCare Management Team" with
no other contact information. Although the Second February 24
Notice held out the prospect of continued employment, the Trustee
advised the employees the next day to return the vehicles to the
garages because the businesses were being shut down.
The plan to continue the remaining operations through Transcendence
quickly died. On Feb. 26, 2016, the employees of the Subsequent
Debtors received the following email authored by Tom Fuchs, Vice
President of Transit Services. The February 26 Notice included
Fuchs' contact information.
The Subsequent Debtors filed chapter 7 petitions in the Court on
April 25, 2016. Mr. LaMonica was also appointed chapter 7 trustee
in these cases, and all of the cases filed by the Debtor-Defendants
have been administratively consolidated.
According to her Complaint, the Plaintiff was employed by the
Defendants. She alleges that on Feb. 24, 2016, the Debtors and the
Non-Debtor Defendants terminated her and other similarly situated
employees without advance notice and seeks relief under the WARN
Acts and unpaid wages under state law. On Oct. 24, 2016, the Court
issued an Order certifying two classes.
The WARN Class comprises: All persons who worked at or reported to
a Facility of Debtors who (1) were terminated without cause on or
about Feb. 24, 2016 or within 30 days of that date, or were
terminated without cause as the reasonably foreseeable consequence
of any mass layoff and/or plant closing by Debtors covered by the
Worker Adjustment and Retraining Notification (WARN) Act on or
about Feb. 24, 2016, and (2) are affected employees within the
meaning of 29 U.S.C. Section 2101(a)(5).
The WARN Class also contains a New York State WARN Sub-Class that
comprises: All persons who worked at or reported to a Facility of
Debtors in New York State who (1) were terminated without cause on
or about Feb. 24, 2016, or within 30 days of that date, or were
terminated without cause as the reasonably foreseeable consequence
of any mass layoff and/or plant closing by Debtors covered by the
New York State Worker Adjustment and Retraining Notification (NY
WARN) Act on or about Feb. 24, 2016, and (2) are affected employees
within the meaning of NYLL Section 860-A (1),(4) and (6).
The Plaintiff thereafter filed the Motion for Partial Summary
Judgment seeking to preclude the Defendants from asserting two
statutory defenses to the WARN Acts claims, based on the
insufficiency of the February Notices. The Plaintiff contends that
the notices sent to the Debtors' employees did not satisfy the
requirements of the WARN Acts and, consequently, the Debtor
Defendants and Non-Debtor Defendants cannot assert certain
statutory defense.
The Non-Debtor Defendants opposed the Motion, contending, inter
alia, that the February Notices were sufficient. The Trustee filed
a limited objection on behalf of the Debtor Defendants. He argued
that he was not an employer required to send his own WARN Act
notices, but conceded that the Debtors did not send WARN notices
that complied with the WARN Acts.
Judge Bernstein finds that the NY WARN Act and regulations largely
mirror the US WARN Act and regulations. The Plaintiff contends
that the NY WARN Act is stricter in several respects, but aside
from the 90-day notice requirement, does not identify the stricter
provisions. In addition, the Motion relies exclusively on the
requirements of the US WARN Act. Accordingly, the Motion will be
decided based on the US WARN Act and accompanying regulations.
The Defendants' answers include affirmative defenses that
incorporate the Exceptions. The Plaintiff seeks to strike those
affirmative defenses on the ground that the Defendants failed to
give sufficient WARN Act notices. The Motion is granted as against
the Debtor Defendants in light of their concession that the Debtors
did not send WARN notices in compliance with either the federal or
New York WARN Acts. The Non-Debtor Defendants contend that the
February Notices were sufficient. The Judge disagrees as to the
February 24 Notices but agree as to the February 26 Notice.
Reading the February 24 Notices together, Judge Bernstein finds
that they failed to provide the type of specific information
regarding the first date of separation and the schedule of
separations required by 20 C.F.R. Section 639.7(d)(2). The
February 24 Notices suffered from other fatal omissions. They did
not provide any contact information, and instead, were simply
signed by the "The TransCare Management Team." Lastly, the
February 24 Notices failed to mention bumping rights, i.e., whether
any of the affected employees were entitled to take the place of a
soon-to-be Transcendence employee based on seniority or some other
criteria. In short, even if the Court could overlook technical
deficiencies with A WARN notice, the February 24 Notices failed to
apprise the affected employees in understandable language whether
they were still working and if so, for how long.
In contrast, the February 26 Notice was sufficient, the Court
notes. It explained the specific circumstances why the remaining
divisions -- the Hudson, Pittsburgh and para-transit companies --
could no longer operate and why shortened notice was being given.
The February 26 Notice satisfied the notification requirements
under the WARN Acts and regulations.
In conclusion, Judge Bernstein granted in part and denied in part
the Motion. The Motion is granted to the extent of striking the
Debtors' Seventh, Eighth, Tenth, and Eleventh Affirmative Defenses
and the Non-Debtors' Tenth, Eleventh, Thirteenth, and Fourteenth
Affirmative Defenses with respect to those members of the class
affected by the February 24 Notices, but is otherwise denied. The
Judge has considered the other arguments made by the parties and
concludes that they lack merit or are rendered moot by the
disposition of the Motion.
A full-text copy of the District Court's Jan. 10, 2020 Memorandum
Decision & Order is available at https://is.gd/i6kEqm from
Leagle.com.
Shameeka Ien, on behalf of herself and all others similarly
situated, Plaintiff, represented by Robert N. Fisher --
rfisher@usgs.gov -- Bradley Grombacher LLP, Jack A. Raisner,
Raisner Roupinian LLP & Rene S. Roupinian, Raisner Roupinian LLP.
Lynn Tilton, Ark Clo 2001-1 Limited, Ark Inestment Partners II,
LP., Patriarch Partners, LLC & Patriarch Partners III, LLC,
Defendants, represented by Gillian G. Egan -- gegan@proskauer.com
-- Proskauer Rose LLP, Nicole A. Eichberger --
neichberger@proskauer.com -- Proskauer Rose LLP, Irena M. Goldstein
-- irenagoldstein@paulhastings.com -- Trenk DiPasqaule Della Fera &
Sodono, PC & Kathleen M. McKenna -- kmckenna@proskauer.com --
Proskauer Rose LLP.
TRANSDIGM GROUP: Ohio Northern District Dismisses Securities Suit
-----------------------------------------------------------------
Judge Pamela A. Berker of the U.S. District Court for the Northern
District of Ohio granted Defendants TransDigm, W. Nicholas Howley,
and Terrance Paradie's Motion to Dismiss for Failure to State a
Claim in In re TransDigm Group, Inc. Securities Litigation. This
Document Relates To: ALL ACTIONS, Case No. 1:17cv1677 (N.D. Ohio).
On Aug. 10, 2017, Plaintiff City of Hollywood Firefighters' Pension
Fund filed a Complaint against the Defendants, on behalf of all
persons who purchased the securities of TransDigm between May 10,
2016 and Jan. 19, 2017. Shortly thereafter, on Sept. 18, 2017, a
second action was filed by the City of Warren Police and Fire
Retirement System on behalf of all persons who purchased
TransDigm's securities between May 10, 2016 and March 21, 2017.
TransDigm is a global designer, producer, and supplier of highly
engineered components for use on commercial and military aircraft.
The Plaintiffs' Complaints alleged that, during the class periods,
TransDigm issued materially false and misleading statements and/or
failed to disclose material adverse facts regarding its operations,
business, and prospects.
Specifically, the Plaintiffs alleged that TransDigm failed to
disclose that it used (1) shell distributors that it controlled to
make noncompetitive government bids seem competitive, (2)
monopolistic tactics to hike the prices of its proprietary
products, and (3) a variety of tactics to evade government
oversight of its cost structure and avoid government scrutiny. As
a consequence, the Plaintiffs asserted that TransDigm's growth and
profitability during the class period were artificially inflated
and that TransDigm shares traded at artificially inflated prices
during the class period. Both actions alleged that the Defendants
violated Sections 10(b) and 20(a) of the Securities Exchange Act of
1934, and Securities and Exchange Commission Rule 10b-5 during the
Class Periods.
In October 2017, the Plaintiffs each filed Motions for
Consolidation and for Appointment as Lead Plaintiff. On Dec. 5,
2017, then-assigned District Judge Donald Nugent issued a
Memorandum Opinion & Order in which he (1) granted the parties'
Motions for Consolidation; (2) appointed Plaintiff Hollywood
Firefighters as Lead Plaintiff; and (3) approved Hollywood
Firefighters' selection of Saxena White P.A. as Lead Counsel for
the Class and Climaco Wilcox Peca & Garofoli Co., L.P.A. as Local
Counsel.
Lead Plaintiff filed a Consolidated Amended Complaint on Feb. 16,
2018. The Defendants thereafter filed a Motion to Dismiss for
Failure to State a Claim on May 7, 2018, which the Lead Plaintiff
opposed. Judge Nugent conducted a status conference on Aug. 29,
2018, during which the parties presented oral arguments on the
pending Motion.
Judge Nugent then referred the Motion to Magistrate Judge William
Baughman for a Report and Recommendation. On Oct. 18, 2018, Judge
Baughman issued an Order in which he strongly encouraged the
counsel to discuss the possibility of amending the Complaint. On
Oct. 26, 2018, Judge Baughman issued a Report & Recommendation,
noting that the parties have met, conferred, and now jointly
stipulate to a schedule by which the Plaintiffs may file a second
amended complaint, followed by an answer or other response by the
Defendants, and then a subsequent reply by the Plaintiffs. Judge
Baughman recommended that the Court adopt the parties' proposed
schedule, and Judge Nugent agreed.
A Second Amended Complaint was filed on Dec. 21, 2018. On March 1,
2019, the parties jointly moved the Court for leave to allow Lead
Plaintiff to file a Third Amended Complaint. The basis of this
Motion was the fact that, on Feb. 25, 2019, the Department of
Defense, Office of Inspector General ("DoD-OIG") released a report
regarding TransDigm's pricing and cost practices on parts purchased
by the Defense Logistics Agency and the Army. Judge Nugent granted
the parties' Joint Motion.
The Third Amended Complaint (which is now the operative Complaint
in this matter) was filed on March 29, 2019 against TransDigm, W.
Nicholas Howley, and Terrance Paradie. Therein, the Plaintiff
asserts claims under Sections 10(b) and 20(a) of the Securities
Exchange Act of 1934 and Rule 10b-5 promulgated thereunder, on
behalf of all investors who purchased or otherwise acquired
TransDigm common stock between May 10, 2016 and March 21, 2017.
The Defendants filed a Motion to Dismiss for Failure to State a
Claim on May 13, 2019. The Plaintiff filed a Brief in Opposition
on June 27, 2019, to which the Defendants responded on Aug. 19,
2019. On Dec. 20, 2019, the Defendants filed a Notice of
Supplemental Authority, to which the Plaintiff filed a response.
The Defendants also moved for oral argument, which motion was
denied.
On July 5, 2019, the matter was transferred to Judge Berker
pursuant to General Order 2019-13.
Judge Berker concludes that the Plaintiff has failed to meet its
burden in pleading either an actionable misrepresentation or
omission, or loss causation. Because the Plaintiff cannot satisfy
these elements of its Section 10(b) and Rule 10b-5 claim, Count I
of the Third Amended Complaint must be dismissed and a discussion
regarding the remaining elements of the Section 10(b) claim is
unnecessary. Further, because the Plaintiff has failed to plead a
primary violation of the Act to serve as the predicate for Section
20(a) liability, Count II against the individual Defendants Howley
and Paradie is also dismissed.
Finally, the Plaintiff states (summarily and in a footnote) that if
the Court decides in favor of the Defendants, then the Plaintiff
respectfully requests leave to amend the Complaint to remedy any
pleading deficiencies. The request is denied, rules the Court.
The Court held that the Plaintiff has been permitted to amend its
complaint on three separate occasions over the course of the
action, which has been pending since 2017. The Plaintiff offers no
explanation why it should be permitted yet another opportunity to
amend at this stage of the proceedings.
Accordingly, Judge Berker granted the Defendants' Motion to
Dismiss, and denied the Plaintiff's request to seek leave to amend
its Third Amended Complaint.
A full-text copy of the Court's Feb. 19, 2020 Memorandum Opinion &
Order is available at https://is.gd/DJFwCz from Leagle.com.
City of Hollywood Firefighters' Pension Fund, Individually and on
Behalf of All Others Similarly Situated, Plaintiff, represented by
Scott D. Simpkins -- sdsimp@climacolaw.com -- Climaco, Wilcox,
Peca, Tarantino & Garofoli, Brandon Grzandziel, Saxena White,
Dianne M. Anderson, Saxena White, Joseph E. White, III --
jwhite@saxenawhite.com -- Saxena White, Joshua H. Saltzman, Saxena
White, Lester R. Hooker -- lhooker@saxenawhite.com -- Saxena White,
Manuel Miranda, Saxena White, Maya Saxena --
msaxena@saxenawhite.com -- Saxena White, Robert D. Klausner,
Klausner, Kaufman, Jensen & Levinson, pro hac vice, Steven B.
Singer -- ssinger@saxenawhite.com -- Saxena White & Stuart A.
Kaufman -- stu@robertdklausner.com -- Klausner Kaufman Jensen &
Levinson.
City of Warren Police and Fire Retirement System, Individually
and on behalf of all others similarly situated, Plaintiff,
represented by Tricia L. McCormick -- TriciaM@rgrdlaw.com --
Robbins Geller Rudman & Dowd, Brian E. Cochran --
bcochran@rgrdlaw.com -- Robbins Geller Rudman & Dowd, David C.
Walton -- davew@rgrdlaw.com -- Robbins Geller Rudman & Dowd, Drew
T. Legando, Landskroner Grieco Merriman, Henry Rosen --
henryr@rgrdlaw.com -- Robbins Geller Rudman & Dowd, pro hac vice
& Thomas C. Michaud, Vanoverbeke Michaud & Timmony.
TransDigm Group Incorporated, Defendant, represented by James A.
Slater, Jr. -- jslater@bakerlaw.com -- Baker & Hostetler.
District No. 9, I.A. of M. & A.W. Pension Trust, Movant,
represented by Jack Landskroner, Landskroner Grieco Merriman.
TREEHOUSE FOODS: Court Certifies Class in MSPERS Suit
-----------------------------------------------------
In the case, PUBLIC EMPLOYEES' RETIREMENT SYSTEM OF MISSISSIPPI,
INDIVIDUALLY AND ON BEHALF OF ALL SIMILARLY SITUATED, Plaintiff, v.
TREEHOUSE FOODS, INC., et al., Defendants, Case No. 16-cv-10632
(N.D. Ill.), Judge Robert M. Dow, Jr. of the U.S. District Court
for the Northern District of Illinois, Eastern Division, granted
the Lead Plaintiff's motion for class certification.
Defendant TreeHouse Foods may be the biggest company you have never
heard of. It produces packaged foods for stores' "private labels"
-- that is, it makes grocery stores' off-brand products. Lead
Plaintiff Public Employees' Retirement System of Mississippi
("MSPERS") is an institutional investor that purchased TreeHouse
common stock.
As is relevant for the present motion, TreeHouse purchased several
smaller food-production companies between 2006 and 2014. In late
2014, TreeHouse purchased Flagstone (another food company), and in
2015, it moved to purchase its largest competitor, Private Brands,
from ConAgra. The sale of Private Brands closed in February 2016.
During and following the closing on Private Brands, TreeHouse and
its officers made a series of statements regarding the integration
of Private Brands into the TreeHouse supply and production chain
and future growth opportunities. On Nov. 3, 2016, TreeHouse
reported that its earnings had fallen below forecasts and that its
president, Defendant Christopher Sliva would resign. As a result
of these disclosures, the stock price fell $16.87 (nearly 20%).
Later that day, after the markets closed, Treehouse acknowledged
that Flagstone was underperforming as well, but it is unclear
whether the market further fell as a result of that news.
The Plaintiff alleges that Treehouse's statements painting a rosy
picture of the various acquisitions were fraudulent, and therefore
violations of Section 10(b) of the Securities Exchange Act of 1934,
and the Securities and Exchange Commission's Rule 10b-5, 17 C.F.R.
Section 240.10b-5.
The Plaintiff now moves to certify a Plaintiff class consisting of
all persons and entities who purchased TreeHouse Foods, Inc. common
stock on the open market between Jan. 20, 2016, and Nov. 2, 2016,
inclusive, and who were damaged thereby.
MSPRS also seeks to be appointed the Class Representative and to
have Wolf Popper LLP and Robinson Curley P.C. appointed as the Lead
and Liason Counsel for the certified class. In support of its
motion, MSPERS has attached an expert report from Chad Coffman
opining on the efficiency of the market for TreeHouse stock and the
feasibility of computing damages on a class-wide basis. The
Defendants have attached a report from their own expert, Dr. Paul
Zurek, who opined exclusively on the feasibility of determining
damages on a class-wide basis.
MSPERS seek to certify as a Rule 23(b)(3) class. The Defendants
object on the following grounds: (1) MSPERS is atypical and
inadequate because it is subject to unique defenses; (2) MSPERS is
otherwise inadequate; and (3) MSPERS's proposed damages model
cannot be used to show that class issues predominate.
Judge Dow granted MSPERS's motion for class certification. He
finds that the putative class meets Rule 23(a) and Rule 23(b)
requirements. He finds that (i) the Plaintiff has submitted
evidence that the average weekly trading volume of Treehouse shares
was 4.02 million, representing over 7% of more than 50 million
outstanding shares; (ii) each class member's claim hinges on common
factual and legal questions; (iii) MSPERS's claim, based on its
presumptive reliance on market price, is typical in that it shares
the same essential characteristics as the claims of the class at
large; (iv) the class counsel is adequate; and (v) common questions
predominate about how to deal with Flagstone notwithstanding the
methodological critique.
A full-text copy of the Court's Feb. 26, 2020 Memorandum Opinion &
Order is available at https://is.gd/uTpfTl from Leagle.com.
Annemarie Tarara, Individually and On Behalf of All Others
Similarly Situated, Plaintiff, represented by John Scott Monical,
Lawrence, Kamin, Saunders & Uhlenhop, Mitchell Benjamin Goldberg --
mgoldberg@lksu.com -- Lawrence, Kamin, Saunders & Uhlenhop & Peter
E. Cooper -- pcooper@lksu.com -- Lawrence, Kamin, Saunders &
Uhlenhop.
Ivan Barenbaum, Plaintiff, represented by John Scott Monical,
Lawrence, Kamin, Saunders & Uhlenhop.
Public Employees' Retirement System of Mississippi, Plaintiff,
represented by Matthew Insley-Pruitt, Wolf Popper LLP, pro hac
vice, Alan Francis Curley, Robinson Curley P.C., C. Philip Curley,
Robinson Curley P.C., Chet B. Waldman, Wolf Popper, LLP & Robert C.
Finkel, Wolf Popper, LLP, pro hac vice.
Treehouse Foods, Inc., Sam K Reed, Dennis F. Riordan & Christopher
D. Sliva, Defendants, represented by Dan K. Webb, Winston & Strawn
LLP, Brian Joseph Nisbet, Winston & Strawn Llp, Elizabeth Sheila
Deshaies, Winston & Strawn, James P. Smith, III, Winston & Strawn
LLP, pro hac vice, Matthew Robert Carter -- mcarter@winston.com --
Winston & Strawn LLP & Samuel Mack Zuidema -- szuidema@winston.com
-- Winston & Strawn Llp.
UNITED STATES: Ct. says CBP Can't Hold Detainees More than 48 Hrs.
------------------------------------------------------------------
In the case, Unknown Parties, et al., Plaintiffs, v. Kirstjen M
Nielsen, et al., Defendants, Case No. CV-15-00250-TUC-DCB (D.
Ariz.), Judge David C. Bury of the U.S. District Court for the
District of Arizona granted granted the Plaintiffs' request for a
Permanent Injunction.
The Plaintiffs filed the action on June 8, 2015, seeking injunctive
relief related to alleged inhumane and punitive treatment of civil
immigration detainees by Customs and Border Patrol ("CBP") in the
Tucson Sector at the Brian A. Terry Station/Naco Station, Casa
Grande Station, Douglas Station, Nogales Station, Sonoita Station,
Tucson Station, Why/Ajo Station, Willcox Station, and Three Points
Station. The Tucson Station and Three Points Station process
detainees at the Tucson Coordination Center, which serves as a hub
for coordinating the movement of the majority of detainees out of
CBP custody.
The Plaintiffs charge the Defendants with violating the Due Process
Clause of the Fifth Amendment based on alleged deprivations of
sleep, of hygienic and sanitary conditions, of adequate medical
screening and care, of providing inadequate food and water, and of
a lack of warmth in CBP holding cells. The case is a class action
lawsuit.
Following a seven-day trial, Judge Bury granted the Plaintiffs'
request for a Permanent Injunction because CBP's mission is to
arrest, process, and turn detainees over to United States
Immigration and Customs Enforcement ("ICE"), Office of Enforcement
and Removal Operations ("ERO"), the Office of Refugee Resettlement
("ORR"); the United States Marshals Service; or another agency
("OA"), as appropriate. CBP stations and holding facilities are
designed within the context of the mission for short-term holds,
lasting hours not days. There is no legitimate governmental
interest to hold detainees longer than the time needed to complete
the mission.
The evidence reflects that the extended detentions currently
occurring at CBP facilities are, in large part, caused when
receiving agencies, including ICE, ERO, ORR, the United States
Marshals, and other agencies, are unable, usually due to capacity
constraints, to accept CBP transfers. The Plaintiffs, who are
civil detainees in CBP holding cells, face conditions of
confinement after 12 hours which are substantially worse than
detainees face upon commitment to either a civil immigration
detention facility or even a criminal detention facility, like a
jail or prison.
Judge Bury finds that the conditions of detention in CBP holding
cells, especially those that preclude sleep over several nights,
are presumptively punitive and violate the Constitution. The
Defendants have overcome the presumption to a limited extent, and
the Judge limits his injunctive relief, accordingly. CBP will be
enjoined from holding detainees, who are "processing complete,"
i.e., meaning the detainee has been processed by CBP and the
appropriate receiving agency has been identified, longer than 48
hours from book-in time. Detention may not extend into a third
night under the "no longer than 48 hours" rule, unless and until
CBP can provide conditions of confinement that meet detainees'
basic human needs for sleeping in a bed with a blanket, a shower,
food that meets acceptable dietary standards, potable water, and
medical assessment performed by a medical professional.
Accordingly, Judge Bury found in favor of the Plaintiffs and
against the Defendants. He granted the Plaintiff's request for a
permanent injunction. The Clerk of the Court will enter Judgment
for the Plaintiffs.
CBP will be enjoined from holding detainees, who are "processing
complete," "no longer than 48 hours, unless CBP provides conditions
of confinement that meet basic human needs for sleeping in a bed
with a blanket, a shower, food that meets acceptable dietary
standards, potable water, and medical assessments performed by a
medical professional.
Within 7 days of the filing date of the Order, the Plaintiffs will
file a proposed Order for Permanent Injunction. The Defendants
will have seven days, thereafter, to file an Objection.
A full-text copy of the Court's Feb. 19, 2020 Order is available at
https://is.gd/iQh8yb from Leagle.com.
Unknown Parties, named as Jane Doe #1 and Jane Doe #2, on behalf of
themselves and all others similarly situated, Plaintiff,
represented by Akari Atoyama-Little -- aatoyama@mofo.com --
Morrison & Foerster LLP, pro hac vice, Alvaro M. Huerta, National
Immigration Law Center, pro hac vice, Bree Bernwanger --
bbernwanger@lccrsf.org -- Lwyrs Committee Civil Rights SF Bay Area,
pro hac vice, Colette Reiner Mayer -- crmayer@mofo.com -- Morrison
& Foerster LLP, pro hac vice, Elisa Della-Piana --
edellapiana@lccrsf.org -- Lawyers Committee for Civil Rights, pro
hac vice, Jack Williford Londen -- jlonden@mofo.com -- Morrison &
Foerster LLP, John Sebastiano Douglass -- jdouglass@mofo.com --
Morrison & Foerster LLP, pro hac vice, Karolina J. Walters,
American Immigration Council, pro hac vice, Linton Joaquin,
National Immigration Law Center, pro hac vice, Louise Carita Stoupe
-- lstoupe@mofo.com -- Morrison & Foerster LLP, Mar Kenney,
American Immigration Council, pro hac vice, Megan Sallomi, Lawyers
Committee for Civil Rights, pro hac vice, Pieter S. DeGanon --
pdeganon@mofo.com -- Morrison & Foerster LLP, Aleyda Yvette Borja,
ACLU & Christine Keeyeh Wee, ACLU.
Norlan Flores, on behalf of themselves and all others similarly
situated, Plaintiff, represented by Alvaro M. Huerta, National
Immigration Law Center, pro hac vice, Bree Bernwanger, Lwyrs
Committee Civil Rights SF Bay Area, pro hac vice, Colette Reiner
Mayer, Morrison & Foerster LLP, pro hac vice, Elisa Della-Piana,
Lawyers Committee for Civil Rights, pro hac vice, John Sebastiano
Douglass, Morrison & Foerster LLP, pro hac vice, Karolina J.
Walters, American Immigration Council, pro hac vice, Linton
Joaquin, National Immigration Law Center, pro hac vice, Louise
Carita Stoupe, Morrison & Foerster LLP, Mary Kenney, American
Immigration Council, pro hac vice, Megan Sallomi, Lawyers Committee
for Civil Rights, pro hac vice, Pieter S. DeGanon, Morrison &
Foerster LLP, Aleyda Yvette Borja, ACLU & Christine Keeyeh Wee,
ACLU.
Carla L Provost, Chief of United States Border Patrol, in her
official capacity, Chad Wolf, Acting United States Department of
Homeland Security, Mark Morgan, Acting Commissioner, United States
Custom and Border Protection & Roy Villareal, Commander, Arizona
Joint Field Command and Chief Patrol Agent-Tucson Sector,
Defendants, represented by Carlton Frederick Sheffield, US Dept of
Justice - Civil Division, Christina Parascandola, US Dept of
Justice, Colin Kisor, US Dept of Justice, Katelyn Masetta-Alvarez,
US Dept of Justice - Office of Immigration Litigation, Michael
Anthony Celone, US Dept of Justice, Sarah B. Fabian, US Dept of
Justice & William Charles Silvis, US Department of Justice Civil
Division Office of Immigration Litigation.
Phoenix Newspapers Incorporated, Intervenor, represented by David
Jeremy Bodney -- BODNEYDBALLARDSPAHR.COM -- Ballard Spahr LLP.
WELLS FARGO: Claims in Purple Mountain Securities Suit Narrowed
---------------------------------------------------------------
In the case, PURPLE MOUNTAIN TRUST, Plaintiff, v. WELLS FARGO &
COMPANY, et al., Defendants, Case No. 3:18-cv-03948-JD (N.D. Cal.),
Judge James Donato of the U.S. District Court for the Northern
District of California (i) granted in part and denied in part the
Defendants' motion to dismiss, and (ii) granted the Plaintiff leave
to amend.
The case is a securities class action against Wells Fargo, its
former CEO, Timothy J. Sloan, other officers, and the former
chairman of its board of directors, Stephen Sanger. Lead Plaintiff
Construction Laborers Pension Trust for Southern California brought
suit on behalf of persons who purchased or otherwise acquired Wells
Fargo common stock between Nov. 3, 2016, and Aug. 3, 2017, under
Sections 10(b) and 20(a) of the Securities Exchange Act of 1934,
and Securities and Exchange Commission Rule 10b-5.
The gravamen of the consolidated amended complaint is that Wells
Fargo made 67 statements during the class period that were false or
misleading because they did not disclose known problems with its
collateral protection insurance ("CPI") and guaranteed auto
protection ("GAP") practices for auto loan customers.
As alleged in the consolidated complaint, prior to September 2016,
some auto loan customers with Wells Fargo were improperly enrolled
in, and forced to pay for, collateral protection insurance they did
not need. CPI protects a lender's collateral, the car, if the
borrower does not obtain auto insurance. CPI is unnecessary if a
borrower has obtained insurance, or when the loan has been paid
off. Wells Fargo was aware of issues with its CPI practices by
July 2016, senior executives were briefed by September 2016, and
the practice was terminated later that month. The company also
reported the problem to the Office of the Comptroller of the
Currency ("OCC"), during the summer of 2016.
There was no public disclosure of Wells Fargo's CPI issue until a
July 2017 New York Times article. In a press release issued the
same day and in its second quarter filing with the SEC a week
later, the company acknowledged that it had been aware of problems
with its CPI program for approximately a year. On the dates of
these disclosures, the price of Wells Fargo's stock fell.
Days after the 10-Q filing, the New York Times published an article
reporting that Wells Fargo was under investigation by the Federal
Reserve Bank of San Francisco for failing to refund unused portions
of guaranteed auto protection premiums. GAP insurance is optional
coverage that protects auto lenders against the practical reality
that the collateral for an auto loan loses a tremendous amount of
value almost immediately -- i.e., when it is driven off the lot.
Other insurance only pays up to the market value of the vehicle at
the time of an accident or other adverse event. Many states
require that unused portions of the GAP premium be paid back to
customers if loan repayment is completed early.
Wells Fargo moved to dismiss under Federal Rule of Civil Procedure
12(b)(6). All the individual Defendants have joined Wells Fargo's
motion. Sanger also filed a short brief regarding the alleged
falsity of his statements and lack of scienter. The Defendants say
the amended complaint should be dismissed for two main reasons: (1)
Wells Fargo had no obligation to disclose its improper auto
insurance policies when discussing its ongoing sales practices, or
"fake accounts," problem; and (2) statements about the company's
commitment to transparency and restoring trust in the wake of that
problem are not actionable.
After an initial set of briefing and oral argument, the Court
called for the Plaintiff to file a chart summarizing its
allegations on a statement-by-statement basis and for the
Defendants to file an accordingly reorganized supplemental brief.
It is the Court's standard practice in securities cases.
While the consolidated complaint's non-conclusory allegations are
taken as true for the motion to dismiss, the parties disagree about
the salient facts. The Plaintiff says that a separate Wells
Fargo's sales practices issue, in which bank employees were found
to have opened unauthorized accounts for customers, makes certain
statements failing to disclose its auto insurance problems during
the class period false or misleading. The Defendants deny the
relevance of the fake accounts to the case. Statements relating to
those improper sales practices were the subject of another
securities case in the district, which has settled. A consumer
class action relating to the improper CPI policy also settled in
the Central District of California. Wells Fargo has entered into
consent orders, including fines, relating to its CPI policies with
the Consumer Financial Protection Bureau and the OCC.
Before reaching the merits of the motion, Judge Donato finds that a
constructive comment on the amended complaint is warranted. It is
counterproductive, and potentially self-defeating, to feature 67
statements as grounds for relief, particularly when many of the
alleged misstatements were duplicative or run-of-the-mill
boilerplate. The chart summarizing the allegations on a
statement-by-statement basis magnified the problem and imposed an
enormous amount of additional and largely unnecessary work on the
Court and the Defendants. On this occasion, the Court undertook
the herculean effort needed to sort through the mass of
allegations, but that will not be the course of action going
forward. Depending on developments in response to the Order, the
Plaintiff may be required to identify its top five allegations, and
proceed on that basis. Judicial economy and efficiency, as well as
reasonable constraints on litigation costs, demand no less.
The Court holds that the Defendants' arguments warrant dismissal of
most of the Plaintiff's claims, but Wells Fargo and Sloan's failure
to disclose the auto insurance problems -- specifically, the CPI
issue -- when explicitly asked about the lay-of-the-land outside of
sales practices is actionable. The heightened pleading
requirements under Federal Rule of Civil Procedure 9(b) and the
Private Securities Litigation Reform Act of 1995 ("PSLRA") are met.
Accordingly, Judge Donato granted and denied in part the
Defendants' motion to dismiss, and the Plaintiff is granted leave
to amend. The Plaintiff's Section 10(b) and Rule 10b-5 claims
against Wells Fargo and Sloan based on Statements 1 and 13 will go
forward. The remaining claims are dismissed.
It is clear that information about consumer-related problems
outside of Wells Fargo's sales practices issues was material to
stockholders. The materiality of the misrepresentation or an
omission depends upon whether there is a substantial likelihood
that it would have been viewed by the reasonable investor as having
significantly altered the total mix of information made available
for the purpose of decisionmaking by stockholders concerning their
investments. The amended complaint alleges that a participant at a
bank analyst conference prompted Sloan to discuss Wells Fargo's
review of, as the CEO summarized, activities outside of retail
banking focused and reviews focused on sales practices and culture.
The fact this question was posed shows that the answer was viewed
as altering the total mix of information useful for investment
decisions.
The Plaintiff were given until the end of January to file a second
amended complaint consistent with the Order. No new claims or
parties may be added without the Court's prior approval. If the
Plaintiff chooses to amend, it should organize all of the
challenged statements or omissions in a logical and efficient
manner, and should file a revised claims chart with the new
complaint.
A full-text copy of the District Court's Jan. 10, 2020 Order is
available at https://is.gd/A5yQ5V from Leagle.com.
Purple Mountain Trust, Individually and on Behalf of All Others
Similarly Situated, Plaintiff, represented by Austin P. Brane,
Robbins Geller Rudman Dowd LLP, Dennis J. Herman, Robbins Geller
Rudman & Dowd LLP, Jeremy Alan Lieberman, Pomerantz LLP, Kevin Shen
Sciarani, Robbins Geller Rudman & Dowd LLP, Lucas F. Olts, Robbins
Geller Rudman & Dowd LLP & Peretz Bronstein -- peretz@bgandg.com --
Bronstein Gewirtz & Grossman, LLC.
Wells Fargo & Company, Defendant, represented by Sverker Kristoffer
Hogberg -- hogbergs@sullcrom.com -- Sullivan & Cromwell LLP,
Brendan P. Cullen -- cullenb@sullcrom.com -- Sullivan & Cromwell
LLP & Christopher Michael Viapiano -- viapianoc@sullcrom.com --
Sullivan and Cromwell LLP.
Timothy J. Sloan, Defendant, represented by Adam F. Shearer,
Clarence Dyer & Cohen LLP, Josh Alan Cohen, Clarence Dyer & Cohen
LLP & Nanci L. Clarence, Clarence Dyer & Cohen LLP.
John Richard Shrewsberry, Defendant, represented by Ismail Jomo
Ramsey, Ramsey & Ehrlich LLP, Katharine Ann Kates, Ramsey & Ehrlich
LLP & Miles F. Ehrlich, Ramsey & Ehrlich LLP.
Stephen Sanger, Defendant, represented by Jordan Eth, Morrison &
Foerster LLP & Anna Erickson White, Morrison & Foerster LLP.
Mary Mack, Defendant, represented by James N. Kramer, Orrick
Herrington & Sutcliffe LLP, Stephanie Albrecht, Orrick Herrington
and Sutcliffe LLP, Walter F. Brown, Orrick Herrington & Suutcliffe
LLP & Lauren B. Seaton, Orrick Herrington and Sutcliffe.
Jyontindra Patel, Movant, represented by Lesley Frank Portnoy,
Pomerantz LLP.
Construction Laborers Pension Trust for Southern California,
Movant, represented by Austin P. Brane, Robbins Geller Rudman Dowd
LLP, Dennis J. Herman, Robbins Geller Rudman & Dowd LLP, Kevin Shen
Sciarani, Robbins Geller Rudman & Dowd LLP, Lucas F. Olts, Robbins
Geller Rudman & Dowd LLP, Scott H. Saham, Robbins Geller Rudman &
Dowd LLP, Spencer A. Burkholz, Robbins Geller Rudman & Dowd LLP &
David Avi Rosenfeld, Robbins Geller Rudman & Dowd LLP.
*********
S U B S C R I P T I O N I N F O R M A T I O N
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