/raid1/www/Hosts/bankrupt/CAR_Public/200313.mbx
C L A S S A C T I O N R E P O R T E R
Friday, March 13, 2020, Vol. 22, No. 53
Headlines
AMERICAN CORADIUS: Muldowney FDCPA Suit Dismissed with Prejudice
AMTRUST FINANCIAL: Court Narrows Claims in Stockholder Suit
ASCENA RETAIL GROUP: Gray Labor Suit Removed to C.D. Cal.
BHH LLC: Hart Suit Settlement Gets Initial Court Approval
BIG LINE INC: Gomez Suit Seeks Overtime, Minimum Pay
BRIAD RESTAURANT: Court Stays Andersen Labor Suit for 90 Days
CALLIGARIS USA: Court Dismisses Tatum-Rios ADA Suit
CBS CORP: Court Narrows Claims in Laborers' Trust Securities Suit
CLEANLY INC: Underpays Drivers, Arias Suit Alleges
CREDIT CONTROL: Transfer of Watson to Michigan Eastern Dist. Denied
ELECTROLUX HOME: Middle District of Pa. Narrows Claims in Rice Suit
GENERAL MOTORS: Diesel Truck Owners Sue Over Defective Fuel Pump
GOKUL RX: Court Denies Bid to Bifurcate Discovery in Katz TCPA Suit
GROWERS' CHOICE: Close of Discovery in Lizarraga Gets 240 More Days
HAWAII: Court Dismisses Grandinetti Prisoner Suit Without Prejudice
HUHTAMAKI INC: Chavez Suit Remanded to Los Angeles Superior Court
IRON MOUNTAIN: Modica Granted Leave to File Amended Labor Suit
JONES PIPELINE: Moscot Seeks to Recover Unpaid Overtime Wages
LODGING SOLUTIONS: Underpays Airline Support Specialists
MARISCOS EL PUERTO: Gutierrez Granted Leave to Amend Labor Suit
MY FINANCIAL SOLUTIONS: Bids to Dismiss Montelongo Suit Denied
NASSAU COUNTY, NY: Bid for Judgment on Pleadings in Davidson Okayed
NEW CASTLE REALTY: Gallo Sues Over Illegal Telemarketing Calls
NEXTGEAR CAPITAL: Court Clarifies Class Definition in Red Barn Suit
NOBLESVILLE, IN: Court Denies Bid to Certify Class in Webster Suit
NORTHERN CALIFORNIA: $225K Osegueda Suit Deal Has Prelim Approval
OHIO: Mag. Judge Recommends Final Approval of Doe Suit Settlement
QUANTCAST CORP: Can Compel Arbitration in Brown FLSA Suit
SERVICE CORP: Wins Summary Judgment in Bernstein Suit
SFBSC MANAGEMENT: 9th Cir. Flips Roes FLSA Suit Settlement Approval
SHARINN & LIPSHIE: Bid to Bifurcate Discovery in Nazario Partly OKd
SIXT RENT: Bid to Dismiss/Compel Arbitration in Calderon Denied
SOUTH CAROLINA: Grant of Bid to Strike in Aiken Suit Reversed
SPRINT/UNITED MANAGEMENT: Fails to Pay All Wages, Murphy Alleges
STEMLINE THERAPEUTICS: Funds Distribution in Securities Suit OK'd
TONY FRUITS: Calderon Sues Over Unpaid Minimum and Overtime Wages
UNITED AIRLINES: Court Denies Bid to File Surreply in Vallarta Suit
UNITED STATES: Court Allows Tujibikila to Proceed in Forma Pauperis
VACO TECHNOLOGY: Court Denies Bid to Dismiss Bush Labor Suit
WAWA INC: Greater Cincinnati Credit Sues Over POS Data Breach
WERNER ENTERPRISES: Partial Summary Judgment Bids in Abarca Denied
WEST VIRGINIA: Leave to File Third-Party Complaint in Baxley Denied
WILLIS TOWERS: Bid to Certify Order for Appeal in Proxy Suit Denied
Asbestos Litigation
ASBESTOS UPDATE: 2 ERISA Actions vs. J&J over Talc Matters Pending
ASBESTOS UPDATE: 3M Accrues $608MM for Respirator Suits at Dec. 31
ASBESTOS UPDATE: Advance Auto Still Defends Lawsuits at Dec. 28
ASBESTOS UPDATE: Aerojet Rocketdyne Defends 61 Cases at Dec. 31
ASBESTOS UPDATE: Assurant Has $24.3MM Liability Reserves at Dec. 31
ASBESTOS UPDATE: Corning Inc. Has $135MM PCC Liability at Dec. 31
ASBESTOS UPDATE: Court Denies Dismissal of Securities Suit vs. J&J
ASBESTOS UPDATE: Flowserve Still Defends PL Lawsuits at Dec. 31
ASBESTOS UPDATE: GATX Corp. Units Still Face Claims at Dec. 31
ASBESTOS UPDATE: Honeywell Had $858MM NARCO Liabilities at Dec. 31
ASBESTOS UPDATE: Ingersoll-Rand Has $547.4MM Liabilities at Dec. 31
ASBESTOS UPDATE: Kanefsky Suit over Asbestos Accounting Continues
ASBESTOS UPDATE: Lennox Int'l. Paid $3.1MM for Lawsuits in 2019
ASBESTOS UPDATE: NewMarket Corp. Has $10.5MM Litigation Reserve
ASBESTOS UPDATE: Standard Motor Had $49.7MM Accrued Liabilities
ASBESTOS UPDATE: Standard Motor Had 1,550 Fibro Cases at Dec. 31
ASBESTOS UPDATE: Transocean Units Still Face 9 Claims at Dec. 31
ASBESTOS UPDATE: Union Carbide Faces 11,117 Claims at Dec. 31
*********
AMERICAN CORADIUS: Muldowney FDCPA Suit Dismissed with Prejudice
----------------------------------------------------------------
In the case, MATTHEW MULDOWNEY, individually and on behalf of all
others similarly situated, Plaintiff, v. AMERICAN CORADIUS
INTERNATIONAL, LLC, Defendant, Case No. 5:19-CV-422 (TJM/TWD) (N.D.
N.Y.), Judge Thomas J. McAvoy of the U.S. District Court for the
Northern District of New York granted the Defendant's motion to
dismiss the Complaint with prejudice.
The matter concerns the Defendant's alleged violations of the Fair
Debt Collection Practices Act ("FDCPA"). The Plaintiff alleges
that he is a "consumer" within the meaning of the FDCPA, and that
the Defendant regularly collects or attempts to collect debts
asserted to be owed to others. The Defendant, the Plaintiff
alleges, also is regularly engaged, for profit, in the collection
of debts allegedly owed to consumers.
The Plaintiff's Complaint alleges that the Defendant claims the
Plaintiff owes a debt. That debt, the Plaintiff contends,
allegedly obliges him to pay money as a result of a transaction
focused "primarily" on "personal, family, or household purposes."
The debt did not come out of the Plaintiff's business activities.
At some point, that debt was assigned or otherwise transferred to
the Defendant for collection. At the point of transfer, the
Plaintiff alleges, he was in default on the debt.
The Plaintiff annexes to the Complaint a copy of a letter, dated
April 17, 2018, that the Defendant sent him in an effort to collect
on the debt. That letter contained information regarding the
alleged debt. It was the first written communication the Plaintiff
received from the Defendant regarding the debt. He alleges that
the communication violated the FDCPA.
The Plaintiff's Complaint contains three counts. Count 1 alleges
that the format of the debt collection sent by the Defendant
violates the terms of the FDCPA and would serve to confuse the
least sophisticated consumer, violating the terms of the FDCPA.
Count 2 alleges that the Defendant violated the FDCPA by failing to
clearly convey certain information about the party to whom he owed
the debt. Count 3 alleges that the Defendant made false or
misleading representations about the name of the party to whom the
debt was owed. The Plaintiff seeks statutory damages under the
FDCPA.
After being served with the Complaint, the Defendant filed the
instant motion for judgment on the pleadings. The parties have
briefed the issues, bringing the case to its present posture.
Judge McAvoy holds that courts have concluded that a debt collector
violates the Act if it fails to convey the information required in
the Act. A debt collector can violate the act if, in providing the
required information, it conveys that information in a confusing or
contradictory fashion so as to cloud the required message with
uncertainty. A "communication" that is reasonably susceptible to
an inaccurate reading of the required message, therefore, violates
the FDCPA.
The Plaintiff's position is that, by referencing PayPal and Bill Me
Later, Inc., the Defendant encouraged a reading of the document
that would make one of those two companies, rather than Comenity,
the creditor. The Judge does not find that reading of the document
reasonable, when considered as a whole. The layout of the
document, which sets off COMENITY CAPITAL BANK, in all capitals, in
separate boxes in four places that indicate who the creditor is,
makes clear to the least sophisticated consumer to whom the debt is
owed, even if other companies are mentioned. Those boxes purport
to name the Creditor in bold print, and the only reasonable reading
of the document is to believe the name listed in those boxes,
"Comenity" is the creditor. PayPal and Bill Me Later, Inc., are
mentioned only incidentally in the letter, and nothing indicates
that they currently own any of the debt. The motion will therefore
be granted in this respect.
Next, the Judge finds that the Plaintiff has not adequately alleged
overshadowing. Indeed, the Plaintiff did not need to go to the
second page for important information to get the statutorily
required warnings; they were on the first page. The information on
the second page did not contradict those statements, but instead
amplified the rights that the Plaintiff had in the debt collection
process. Nothing about those statements would "overshadow" the
statements on the first page of the documents. In many ways, they
confirmed them. As such, the Judge will grant the Defendant's
motion on these grounds as well.
Finally, the Judge will deny the Plaintiff's request for leave to
replead, as amendment would be futile. The Plaintiff's claims, and
the Court's decision, were based on the contents of the letter
Defendant sent tge Plaintiff seeking to recover on the debt. The
Court applied the "least sophisticated consumer" standard in
evaluating that letter and determined that none of the Plaintiff's
claims could survive such a reading. The Plaintiff cannot make out
a FDCPA claim based on that letter, and amendment would be futile.
For the reasons he stated, Judge McAvoy granted the Defendant's
motion to dismiss the Complaint with prejudice. The Clerk of Court
is directed to close the case.
A full-text copy of the Court's Feb. 12, 2020 Decision & Order is
available at https://is.gd/bE3nJJ from Leagle.com.
Matthew Muldowney, individually and on behalf of all others
similarly situated, Plaintiff, represented by Craig B. Sanders --
csanders@barshaysanders.com -- Barshay Sanders, PLLC & David
Michael Barshay -- dbarshay@sbglawny.com -- Barshay Sanders, PLLC.
American Coradius International, LLC, Defendant, represented by
Aaron R. Easley -- aeasley@sessions.legal -- Sessions, Fishman Law
Firm.
AMTRUST FINANCIAL: Court Narrows Claims in Stockholder Suit
-----------------------------------------------------------
In IN RE AMTRUST FINANCIAL SERVICES, INC. STOCKHOLDER LITIGATION,
Consolidated C.A. No. 2018-0396-AGB (Del. Ch.), Judge Andre G.
Bouchard of the Court of Chancery of Delaware granted in part and
denied in part the Defendants' motions to dismiss the Complaint.
The case concerns a transaction in which the controlling
stockholders of AmTrust, Inc. -- George Karfunkel, Leah Karfunkel,
and Barry Zyskind -- teamed up with a private equity firm to take
AmTrust private through a merger that closed in November 2018. In
conveying their initial proposal to acquire the rest of the shares
of the company for $12.25 per share, the buyout group conditioned
the transaction on receiving the approval of a special committee of
the company's board of directors and a majority of AmTrust's
minority stockholders.
On Feb. 28, 2018, after negotiating with the buyout group for
about seven weeks, the special committee voted to approve a $13.50
per share merger with the buyout group. The proposed merger drew
criticism from major stockholders of the company, including Carl
Icahn, who sued the controlling stockholders for breach of
fiduciary duty and opposed the proposed share price as inadequate.
On June 3, 2018, the day before the stockholder meeting scheduled
to consider the proposal, the company adjourned the meeting when it
became apparent that a majority of the unaffiliated stockholders
would not approve the proposal.
On June 4, one day after the company adjourned the ill-fated
stockholder meeting, Icahn indicated his willingness to support a
transaction at $14.75 per share during discussions with Zyskind and
George Karfunkel. The special committee did not participate in
these discussions. On June 6, the special committee and the
company's board approved an amended merger agreement with a price
of $14.75 per share. In connection with amending the merger
agreement, Icahn entered into a settlement agreement in which he
agreed to drop his lawsuit, support the merger, and forego his
appraisal rights. Thereafter, 67.4% of the unaffiliated
stockholders of AmTrust approved the amended merger proposal.
The Plaintiffs are former stockholders of AmTrust. Their
consolidated complaint asserts several claims for breach of
fiduciary duty and aiding and abetting against the controlling
stockholders, AmTrust's directors, and other participants in the
buyout. All of the defendants moved to dismiss the complaint under
Court of Chancery Rule 12(b)(6) for failure to state a claim for
relief.
The Complaint asserts four claims. Count I asserts that the
"Director Defendants breached their fiduciary duties by supporting
and/or acquiescing to the Transaction that greatly undervalued
AmTrust and provided consideration to AmTrust's minority
stockholders that was grossly unfair. Count II asserts that
Zyskind breached his fiduciary duty as an officer "by placing his
own interests ahead of those of AmTrust's public stockholders and
orchestrating a deal that guaranteed that AmTrust's insiders would
take the Company private at an artificially low price. Count III
asserts that Zyskind, George Karfukel, and Leah Karfunkel breached
their fiduciary duties as controlling stockholders by manipulating
and controlling the Transaction process, including the Company's
financial projections and the valuation process used by the
conflicted Special Committee. Count IV asserts that the Stone
Point Defendants "aided and abetted the Director Defendants and
Zyskind as an officer defendant, in the aforesaid breach of their
fiduciary duties.
In June 2019, each of the Defendants moved to dismiss the Complaint
under Court of Chancery Rule 12(b)(6) for failure to state a claim
for relief as to each of them. After briefing, the court held oral
argument on Nov. 5, 2019.
The primary issue before the Court is whether the transaction
complied with the framework set forth in Kahn v. M & F Worldwide
Corp. ("MFW") for subjecting a squeeze-out merger by a controlling
stockholder to business judgment review rather than the entire
fairness standard. The Plaintiffs argue there are many reasons it
did not.
Judge Bouchard concludes that the transaction did not satisfy the
MFW standard because the complaint pleads a reasonably conceivable
set of facts that three of the four members of the special
committee had a material self-interest in the transaction, which
was expected to extinguish viable derivative claims exposing each
of them to significant personal liability. The net result of this
decision is that the Plaintiffs' claims for breach of fiduciary
duty against the controlling stockholders and the self-interested
members of the special committee will survive. The remaining
claims for failure to state a claim for relief.
Accordingly, the Judge granted in part and denied in part the
Defendants' motions to dismiss the Complaint. The parties should
confer and submit an order implementing the decision within five
business days.
A full-text copy of the Court's Feb. 26, 2020 Memorandum Opinion is
available at https://is.gd/iyqAWA from Leagle.com.
Ned Weinberger -- nweinberger@labaton.com -- Thomas Curry --
tcurry@labaton.com -- and Mark D. Richardson --
mrichardson@labaton.com -- LABATON SUCHAROW LLP, Wilmington,
Delaware; Jay W. Eisenhofer, Michael J. Barry, and Kyle J. McGee,
GRANT & EISENHOFER P.A, Wilmington, Delaware; Marcus E. Montejo,
Stephen D. Dargitz, and John G. Day, PRICKETT, JONES & ELLIOTT,
P.A, Wilmington, Delaware; Carl L. Stine, Adam J. Blander, and
Antoinette Adesanya, WOLF POPPER LLP, New York, New York; Jeremy
Friedman, Spencer Oster, and David Tejtel, FRIEDMAN OSTER & TEJTEL
PLLC, New York, New York; Eric L. Zagar, Robin Winchester, Michael
C. Wagner, and Christopher M. Windover, KESSLER TOPAZ MELTZER &
CHECK, LLP, Radnor, Pennsylvania; David Wales and Edward Timlin,
BERNSTEIN LITOWITZ BERGER & GROSSMANN LLP, New York, New York;
Joseph E. White, III and Adam D. Warden, SAXENA WHITE P.A, Boca
Raton, Florida; Steven B. Singer and Joshua Saltzman, SAXENA WHITE
P.A, White Plains, New York; Attorneys for Plaintiffs Arca
Investments, a.s., Arca Capital Bohemia, a.s., Krupa Global
Investments, Pompano Beach Police & Firefighters' Retirement
System, City of Lauderhill Police Officers' Retirement System, West
Palm Beach Police Pension Fund, and Cambridge Retirement System.
Edward B. Micheletti -- edward.micheletti@skadden.com -- and Bonnie
W. David -- bonnie.david@skadden.com -- SKADDEN, ARPS, SLATE,
MEAGHER & FLOM LLP, Wilmington, Delaware; Attorneys for Defendants
Stone Point Capital LLC, Trident VII Professionals Fund, L.P.,
Trident VII, L.P., Trident VII DE Parallel Fund, L.P., Trident VII
Parallel Fund, L.P, and Trident Pine Acquisition LP.
Gregory P. Williams -- williams@rlf.com -- Blake Rohrbacher --
rohrbacher@rlf.com -- Daniel E. Kaprow -- kaprow@rlf.com -- and
Ryan D. Konstanzer -- konstanzer@rlf.com -- RICHARDS, LAYTON &
FINGER, P.A., Wilmington, Delaware; Tariq Mundiya and Sameer
Advani, WILLKIE FARR & GALLAGHER LLP, New York, New York; Attorneys
for Defendants Donald T. DeCarlo, Susan C. Fisch, Abraham
Gulkowitz, and Raul Rivera.
Daniel A. Mason -- dmason@paulweiss.com -- PAUL, WEISS, RIFKIND,
WHARTON & GARRISON LLP, Wilmington, Delaware; Andrew G. Gordon and
William A. Clareman, PAUL, WEISS, RIFKIND, WHARTON & GARRISON LLP,
New York, New York; Attorneys for Defendants Barry D. Zyskind,
George Karfunkel, Leah Karfunkel, The Estate of Michael Karfunkel,
Evergreen Parent, L.P., K-Z Evergreen, LLC and Evergreen Merger
Sub, Inc.
ASCENA RETAIL GROUP: Gray Labor Suit Removed to C.D. Cal.
---------------------------------------------------------
The case captioned Fleta Gray, individuals, on behalf of
themselves, and on behalf of all persons similarly situated,
Plaintiff, v. Ascena Retail Group, Inc., Catherine's Inc., and Does
1 through 50, inclusive, Defendants, Case No. 19STCV40142 (Cal.
Super., November 7, 2019), was removed to the U.S. District Court
for the Central District of California on February 7, 2020 under
Case No. 20-cv-01256.
Gray seeks redress for Defendant's failure to provide meal and rest
breaks, failure to provide itemized wage statements, interest
thereon at the statutory rate, actual damages, all wages due
terminated employees, costs of suit, prejudgment interest and such
other and further relief pursuant to the California Labor Code and
applicable Industrial Welfare Commission wage orders.[BN]
Gray is represented by:
Alan Harris, Esq.
David Garrett, Esq.
Lin Zhan, Esq.
HARRIS & RUBLE
655 North Central Ave., 17th Floor
Glendale, CA 91203
Phone: 323.962.3777
Fax: 323.962.3004
Email: harrisa@harrisanddruble.com
dgarrett@harrisandruble.com
lzhan@harrisanddruble.com
Defendants are represented by:
Carrie A. Gonell, Esq.
David Rashe, Esq.
MORGAN, LEWIS & BOCKIUS LLP
600 Anton Boulevard, Suite 1800
Costa Mesa, CA 92626-7653
Tel: (714) 830-0600
Fax: (714) 830-0700
Email: carrie.gonell@morganlewis.com
david.rashe@morganlewis.com
BHH LLC: Hart Suit Settlement Gets Initial Court Approval
---------------------------------------------------------
In the case, JOANNE HART and SANDRA BUENO, on behalf of themselves
and all others similarly situated, Plaintiffs, v. BHH, LLC d/b/a
BELL + HOWELL and VAN HAUSER LLC, Defendants, Case No. 15cv4804
(S.D. N.Y.), Judge William H. Pauley, III of the U.S. District
Court for the Southern District of New York approved the
Plaintiffs' motion for preliminary approval of the proposed
settlement agreement.
The Plaintiffs' initial motion for preliminary approval of the
proposed settlement was denied. Since then, the parties have cured
the deficiencies. The revised proposed settlement no longer
contains the quick-pay provision. Instead, the class, the class
representatives, and the counsel will be paid 30 days after Final
Approval. Additionally, the parties will no longer arbitrate the
Plaintiffs' counsel's fee award and instead the class counsel will
request an award less than $6.5 million from the Court.
Judge Pauley finds that, subject to the final approval hearing, the
proposed settlement agreement appears to be fair, reasonable, and
adequate, within the range of possible approval, and in the best
interests of the settlement class set forth. He also finds that
the proposed settlement agreement appears to be the result of
arm's-length negotiations between experienced class action
attorneys, appears to meet all applicable requirements of law,
including Rule 23 and the Class Action Fairness Act ("CAFA"), and
is sufficient to warrant notice of the settlement and the final
approval hearing to be disseminated to the Settlement Class. He
preliminarily approved the proposed settlement in its entirety
subject to the final approval hearing.
The final approval hearing will be held on Sept. 15, 2020, at 10:00
a.m.
By no later than Aug. 25, 2020, the claims administrator, Digital
Settlement Group, will provide to the class counsel a report
stating how many claims were filed, how many claims were approved,
the total dollar amount of the approved claims, and the amount the
claims administrator believes will be disbursed to the class. The
class counsel will promptly file the report on the docket of the
action.
By no later than May 22, 2020, the class counsel will file papers
in support of their fee award and the class representatives'
incentive awards with the Court. The Defendants may -- but are not
required to -- file a response to the class counsel's Fee Petition
with the Court no later than Aug. 18, 2020. The class counsel may
file a reply in support of their Fee Petition or responses to
objections, if any, with the Court no later than Aug. 25, 2020.
The class counsel will also file their papers in support of final
approval no later than Aug. 25, 2020.
The Judge approved, as to form, content, and distribution, the
notice plan set forth in the proposed settlement agreement,
including the claim form attached to the proposed settlement
agreement as Exhibit A, the notice plan and all forms of notice to
the settlement class as set forth in the proposed settlement
agreement and Exhibits C and D thereto (including the revisions
made pursuant to this Court's directions during the Oct. 7, 2019
telephonic hearing), and finds that such notice is the best notice
practicable under the circumstances, and that the notice complies
fully with the requirements of the Federal Rules of Civil
Procedure.
Pursuant to paragraph 74 of the proposed settlement agreement, the
claims administrator is directed to implement the notice plan as
set forth therein, such that notice will be disseminated no later
than March 13, 2020.
The Judge directed the Defendants to fully comply with the notice
provisions of the CAFA, by providing the required notices in
accordance with CAFA by no later than Feb. 15, 2020.
The members of the class who wish to receive benefits under the
proposed settlement agreement must complete and submit a timely and
valid claim form in accordance with the instructions contained
therein. All claim forms must be postmarked or electronically
submitted no later than July 11, 2020. Any members of the
settlement class who elect to exclude themselves or "opt out" of
the proposed settlement agreement must file a written request with
the claims administrator, postmarked no later than June 15, 2020.
By no later than Aug. 25, 2020, any person who falls within the
definition of the settlement class and who does not request
exclusion from the class may enter an appearance in the action, at
their own expense, individually or through the counsel of their own
choice. Any settlement class member who does not enter an
appearance will be represented by the class counsel.
All further proceedings in the action are ordered stayed until
final judgment or termination of the proposed settlement agreement,
whichever occurs earlier, except for those matters necessary to
obtain and/or effectuate final approval of the proposed settlement
agreement.
A full-text copy of the Court's Feb. 12, 2020 Order is available at
https://is.gd/LaSMhr from Leagle.com.
Joanne Hart, on behalf of herself and all others similarly
situated, Plaintiff, represented by Frederick John Klorczyk --
fklorczyk@bursor.com -- Bursor & Fisher, P.A., Joshua David
Arisohn
-- jarisohn@bursor.com -- Bursor & Fisher P.A., Neal Jamison
Deckant -- ndeckant@bursor.com -- Bursor & Fisher, P.A., Yitzchak
Kopel -- ykopel@bursor.com -- Bursor & Fisher, P.A. & Joseph
Ignatius Marchese -- jmarchese@bursor.com -- Bursor & Fisher, P.A.
Sandra Bueno, Plaintiff, represented by Yitzchak Kopel, Bursor &
Fisher, P.A.
BHH LLC, doing business as Bell + Howell & Van Hauser LLC,
Defendants, represented by Donald J. Reinhard --
donaldreinhard@quinnemanuel.com -- Quinn Emanuel Urquhart &
Sullivan LLP, Howard B. Randell -- hbr@lefltd.com -- Leahy,
Eisenberg & Franenkel, Ltd., pro hac vice, Robert J. Ostojic --
ro@lefltd.com -- Leahy Eisenberg & Frankel, Ltd. & Scott Wing --
sw@lefltd.com -- Leahy, Eisenberg & Franenkel, Ltd., pro hac vice.
BIG LINE INC: Gomez Suit Seeks Overtime, Minimum Pay
----------------------------------------------------
Jose Manuel Gomez, individually and on behalf of all others
similarly situated, Plaintiffs, v. Big Line Inc. and Tala "Doe,"
Defendants, Case No. 20-cv-01094, (S.D. N.Y., February 7, 2020)
seeks to recover overtime compensation for work in excess of forty
hours per week, prejudgment and post-judgment interest, costs
pursuant to the Fair Labor Standards Act of 1938 and New York Labor
Law.
Defendants operate "Warehouse Furniture" where Gomez worked as a
mattress maker from June 2018 until October 23, 2019. She claims
minimum wages and overtime for hours rendered in excess of 40 hours
per week. [BN]
Plaintiff is represented by:
Nicola Ciliotta, Esq.
KATZ MELINGER PLLC
280 Madison Avenue, Suite 600
New York, NY 10016
Tel: (212) 460-0047
Facsimile: (212) 428-6811
Email: nciliotta@katzmelinger.com
BRIAD RESTAURANT: Court Stays Andersen Labor Suit for 90 Days
-------------------------------------------------------------
Magistrate Judge Brenda Weksler of the U.S. District Court for the
District of Nevada stayed the case captioned JEFFREY ANDERSEN, an
individual, on behalf of himself and all similarly situated
individuals, Plaintiff, v. BRIAD RESTAURANT GROUP, LLC., a New
Jersey limited liability company; and DOES 1 through 100,
inclusive, Defendant, Case No. 2:14-cv-00786-GMN-BNW (D. Nev.),
beginning Feb. 21, 2020 and going through May 21, 2020.
The Parties stipulated to and requested an order granting a
temporary 90-day stay of all proceedings in the matter to avoid
unnecessary litigation costs while the Parties execute mediation
with Hunter Hughes, Esq., an experienced mediator of wage and hour
class actions located in Atlanta, Georgia, with whom the counsel
for the Parties have recently settled a similar matter.
The Court is aware of the lengthy procedural history of the action.
It is worth noting that only with the Parties now having digested
the appropriate standard for resolving cases under the Nevada
Minimum Wage Amendment and in the wake of the Court's class
certification order and subsequent motion practice surrounding
composition of the Certified Class, has an accurate alleged damages
accounting based on the proper information upon which to base an
earnest settlement effort been feasible.
Having now exchanged extensive and focused class discovery and
performed their own respective analyses of the class time and pay
data, the Parties have come to a mutual, good faith belief that
they can resolve the matter with only minimal additional expense
through mediation with Mr. Hughes. The counsel for the Parties
recently used Mr. Hughes's services to settle a putative class
action involving claims similar to those at issue here and believe
that his familiarity with the particular issues in the case, along
with his extensive experience and expertise in wage and hour class
actions in general, will be invaluable for resolving the matter.
The Parties asked to stay the instant proceedings to schedule a
mediation date with Mr. Hughes, whose availability is limited by
high demand for his services.
The Joint Discovery Plan and Scheduling Order for Phase II
Discovery provides a deadline to disclose rebuttal experts of March
9, 2020, a discovery cutoff deadline of April 7, 2020, and a
dispositive motion deadline of May 7, 2020. The Parties were in
the midst of conducting discovery when they completed their
analysis of the class pay and time data and began discussing the
promising prospect of mediating the case with the assistance of Mr.
Hughes. As the additional costs associated with continuing
discovery efforts would prove unnecessary if the Parties were to
resolve this matter at mediation, the Parties request a stay in the
matter to avoid putting those costs to waste. In the absence of a
stay, the Parties anticipate incurring costs related to the
completion of written fact discovery and the completion of expert
discovery, including deposing expert witnesses and rebuttal expert
witnesses.
The Parties therefore requested, and Magistrate Judge Weksler
granted, that (i) the Court enters a temporary 90-day stay of the
matter beginning Feb. 21, 2020, and going through May 21, 2020;
(ii) the Court stays the Parties' discovery cutoff deadline and
order that the time remaining on the deadline as of Feb. 21, 2020,
immediately recommence upon the lifting of the stay, setting the
new deadline at July 6, 2020; (iii) the Court stays the Parties'
deadline for disclosing rebuttal expert witnesses and order that
the time remaining on the deadline as of Feb. 21, 2020, immediately
recommence upon the lifting of the stay, setting the new deadline
at June 4, 2020; (iv) the Court stays the Parties' deadline for
filing dispositive motions and order that the time remaining on the
deadline as of Feb. 21, 2020, immediately recommence upon the
lifting of the stay, setting the new deadline at Aug. 5, 2020; and
(v) the Court stays the Parties' deadline for filing the Pre-Trial
Order and order that the time remaining on the deadline as of Feb.
21, 2020, immediately recommence upon the lifting of the stay,
setting the new deadline at Sept. 7, 2020 (unless a timely
dispositive motion is filed, in which case the deadline for filing
the Pre-Trial Order will be suspended until 30 days after entry of
a decision on the last such motion, or until the date ordered by
the Court).
A full-text copy of the Court's Feb. 26, 2020 Order is available at
https://is.gd/kbtAlX from Leagle.com.
Erin Hanks, Plaintiff, represented by Bradley Scott Schrager -
bschrager@wrslawyers.com - Wolf, Rifkin, Shapiro, Schulman &
Rabkin, Daniel Bravo - dbravo@wrslawyers.com - Wolf, Rifkin,
Shapiro, Schulman, & Rabkin, LLP & Don Springmeyer -
dspringmeyer@wrslawyers.com - Wolf, Rifkin, Shapiro, Schulman and
Rabkin, LLP
Briad Restaurant Group, LLC, Defendant, represented by Kathryn B.
Blakey - kblakey@littler.com - Littler Mendelson, Montgomery Y.
Paek - mpaek@littler.com - Littler Mendelson, Neil C. Baker-
nbaker@littler.com - Littler Mendelson, Rick D. Roskelley -
rroskelley@littler.com - Littler Mendelson, PC & Roger L.
Grandgenett - rgrandgenett@littler.com - Littler Mendelson, PC.
CALLIGARIS USA: Court Dismisses Tatum-Rios ADA Suit
---------------------------------------------------
Judge Laura Taylor Swain of the U.S. District Court for the
Southern District of New York dismissed with prejudice the case,
LYNETTE TATUM-RIOS, individually and on behalf of all other persons
similarly situated, Plaintiffs, v. CALLIGARIS USA INC. d/b/a
CALLIGARIS, Defendant, Case No. 19-CV-5501-LTS-KHP (S.D. N.Y.), as
to the Named Plaintiff and without prejudice as to all the other
Plaintiffs and without costs to either party, but without prejudice
to restoration of the action to the calendar of the undersigned if
settlement is not achieved within 30 days of the date of the
Order.
The parties are advised that if they wish the Court to retain
jurisdiction in the matter for purposes of enforcing any settlement
agreement, they will submit the settlement agreement to the Court
to be so ordered.
A full-text copy of the District Court's Jan. 14, 2020 Order is
available at https://is.gd/P4iYhW from Leagle.com.
Lynette Tatum-Rios, Individually and on behalf of all other persons
similarly situated, Plaintiff, represented by Christopher Howard
Lowe -- Chris@lipskylowe.com -- Lipsky Lowe LLP.
Calligaris USA Inc., doing business as Calligaris, Defendant,
represented by Alfred J. Sargente -- asargente@hpylaw.com --
Hawkins Parnell Young, LLP & Edward Pierce Abbot --
eabbot@hpylaw.com -- Hawkins Parnell Young, LLP.
CBS CORP: Court Narrows Claims in Laborers' Trust Securities Suit
-----------------------------------------------------------------
In the case, CONSTRUCTION LABORERS PENSION TRUST FOR SOUTHERN
CALIFORNIA, GENE SAMIT and JOHN LANTZ, individually and on behalf
of all others similarly situated, Plaintiffs, v. CBS CORPORATION et
al., Defendants, Case No. 18-CV-7796 (VEC) (S.D. N.Y.), Judge
Valerie Caproni of the U.S. District Court, for the Southern
District of New York granted in part and denied in part both (i)
CBS and all individual Defendants' joint motion to dismiss, and
(ii) Leslie Moonves' motion to dismiss.
The case is a putative securities class action against CBS and
several of its officers and employees, including former CEO and
Chairman of the Board Moonves. The Plaintiffs bring claims under
Sections 10(b) and 20(a) of the Securities Exchange Act of 1934,
and related regulations.
CBS is a mass media, entertainment, and publishing company. It
operates various businesses spanning these industries, including
the CBS Television Network, cable networks, content production and
distribution, television stations, internet-based businesses, and
consumer publishing. The Individual Defendants include Moonves,
his former co-Board member and CBS's controlling shareholder Shari
Redstone, other Board members from the Class Period, and three
executive employees: former COO Joseph Ianniello, former Executive
VP Lawrence Liding, and President of CBS News David Rhodes. The
facts in the case center on Moonves's allegedly unique value to the
Company and on accusations of sexual misconduct made against
Moonves and other non-Defendant executives at CBS that were
reported by the New Yorker and other news organizations.
The Amended Complaint alleges that Moonves -- the architect of the
Company's success -- concealed a dark history of sexual misconduct
and fostered a hostile workplace culture that posed material
business risks to the Company. The Defendants allegedly failed to
disclose the risk that journalists would uncover and expose
Moonves's misconduct and force Moonves out, all the while paying
lip service to the Company's purported anti-harassment ethical
standards.
The putative class includes purchasers of CBS stock from Sept. 26,
2016, to Dec. 4, 2018 and hinges on two corrective disclosures --
Ronan Farrow's initial exposé on Moonves and CBS that was
published in the New Yorker on July 27, 2018, and three articles
that were published on Dec. 4, 2018, by the New York Times
disclosing new details about Moonves's misconduct that the
reporters drew from an independent investigation that had been
commissioned by CBS and then leaked to the press.
CBS and all the individual Defendants except Moonves made a joint
motion to dismiss, and Moonves made a separate motion to dismiss.
Both argue that the Amended Complaint fails to state a claim and
must be dismissed under Federal Rule of Civil Procedure 12(b)(6).
Judge Caproni granted in part and denied in part CBS' and Moonves'
motions to dismiss. She denied as moot the Plaintiffs' motion to
strike. All claims against the Defendants, except the Plaintiffs'
Section 10(b) and 20(a) claims against CBS and Moonves based on the
misleading statement alleged in the Amended Complaint are
dismissed. The Plaintiffs' request for leave to amend is denied
without prejudice.
Among other things, the Judge finds that CBS' characterization of
the Amended Complaint is inaccurate. Although the Amended
Complaint is not a model of clarity, it identifies statements and
omissions, describes relevant predicate events, and alleges how
those events make the statements and omissions false or misleading.
In doing so, the Amended Complaint describes "what portion of each
quotation constitutes a false representation" and avoids placing
the burden on the Court to sort out the alleged misrepresentations
and then match them with the corresponding adverse facts. The
Amended Complaint is far from the 280-page complaint in Bahash
where the lengthy quotations and canned allegations made any
analysis a Sisyphean task.
She also finds that the Amended Complaint does not allege that any
of these statements were made to reassure investors or suggest that
allegations of sexual misconduct would not damage the Company. Put
differently, no reasonable investor would have relied on the CBS
statements to reassure him or herself that the Company was immune
to losing key executives due to accusations of sexual misconduct.
Moreover, even if the complained-of statements were material
statements of fact, the Amended Complaint does not allege that they
were false or misleading. The Amended Complaint also does not
allege that the statements in the Ethics Code were false or
misleading. In addition to failing to explain why those
requirements, other than the last, are even relevant, the Amended
Complaint does not allege that those requirements were not in
place. Nor does it allege that the Company guaranteed full
compliance with the requirements contained in the Ethics Code.
The Judge also finds that the allegations give rise to a strong
inference that Moonves knew at the time he made his statement at
the Variety-sponsored event that his statement and its implications
were not truthful or that, at a minimum, he was "highly
unreasonable in failing to appreciate that possibility." The
Plaintiffs have thus adequately pled a strong inference of scienter
as to Moonves. Lastly, the Amended Complaint points to several
proxy statements, from 2016 to 2018, that contained statements
about the BCS and Ethics Code, but it does not allege that those
statements were false or misleading.
The Plaintiffs may renew their motion for leave to amend no later
than Jan. 29, 2020. Any such motion must include their proposed
Second Amended Complaint, redlined to show changes from the Amended
Complaint. The stay of discovery remains in place. If the
Plaintiffs elect not to renew their motion for leave to amend, then
on Feb. 21, 2020, at 10:00 a.m., the remaining parties must appear
for an initial pretrial conference to set a discovery schedule, and
the parties must file a joint preconference letter according to the
Court's Individual Rules no later than Feb. 13, 2020
A full-text copy of the Court's Jan. 15, 2020 Opinion & Order is
available at https://is.gd/Ku8eMY from Leagle.com.
Construction Laborers Pension Trust for Southern California, Lead
Plaintiff, represented by David Avi Rosenfeld, Robbins Geller
Rudman & Dowd LLP, Mary Katherine Blasy -- mblasy@rgrdlaw.com --
Robbins Geller Rudman & Dowd LLP, Vincent Michael Serra, Robbins
Geller Rudman & Dowd LLP & Samuel Howard Rudman --
srudman@rgrdlaw.com -- Robbins Geller Rudman & Dowd LLP.
Gene Samit, individually and on behalf of all others similarly
situated, Plaintiff, represented by Joseph Alexander Hood, II --
ahood@pomlaw.com -- Pomerantz LLP & Jeremy Alan Lieberman --
jalieberman@pomlaw.com -- Pomerantz LLP.
John Lantz, Plaintiff, pro se.
John Lantz, individually and on behalf of all others similarly
situated, Plaintiff, represented by Samuel Howard Rudman, Robbins
Geller Rudman & Dowd LLP.
Howard Jacobowitz, Movant, represented by Jeremy Alan Lieberman,
Pomerantz LLP.
Iron Workers District Council of Philadelphia & Vicinity Benefit &
Pension Plans, Movant, represented by Phillip C. Kim, The Rosen Law
Firm.
CBS Corporation, Joseph R. Ianniello, Lawrence Liding, David
Rhodes, Gary L. Countryman, Linda M. Griego & Doug Morris,
Defendants, represented by Mary Jane Eaton -- meaton@willkie.com --
Willkie Farr & Gallagher LLP, Alexander Leonard Cheney --
acheney@willkie.com -- Willkie Farr & Gallagher LLP, Tariq Mundiya
-- tmundiya@willkie.com -- Willkie Farr & Gallagher LLP & Zeh
Sheena Ekono -- zekono@willkie.com -- Willkie Farr & Gallagher
LLP.
Leslie Moonves, Defendant, represented by Andrew J. Levander,
Dechert LLP, Hector Gonzalez, Dechert LLP, Angela M. Liu, Dechert
LLP, Brendan Michael Herrmann, Dechert LLP & Margaret Mortimer,
Dechert, LLP.
David R. Adelman, Robert N. Klieger & Shari Redstone, Defendants,
represented by Rahul Mukhi, Cleary Gottlieb Steen & Hamilton LLP.
Joseph A. Califaro, Jr., Defendant, represented by Brendan V.
Sullivan, Jr., Williams & Connolly, Jonathan Bradley Pitt, Williams
& Connolly LLP & Steven M. Cady, Williams & Connolly LLP.
William S. Cohen, Defendant, represented by Jessica Ann Masella,
DLA Piper US LLP & Richard Francis Hans, Jr., DLA Piper US LLP.
CLEANLY INC: Underpays Drivers, Arias Suit Alleges
--------------------------------------------------
PARIX ARIAS individually and on behalf of all others similarly
situated, Plaintiff v. CLEANLY INC.; ITAY FORER; TOM HARARI, and
WASH SUPPLY LAUNDROMAT, INC., Defendants, Case No. 1:20-cv-00860
(E.D.N.Y., Feb. 18, 2020) seeks to recover from the Defendants
unpaid wages and overtime compensation, interest, liquidated
damages, attorneys' fees, and costs under the Fair Labor Standards
Act.
The Plaintiff Arias was employed by the Defendants as driver.
Cleanly Inc offers on-demand laundry and dry cleaning delivery
service through its mobile applications and website. [BN]
The Plaintiff is represented by:
Elisa Tara Gilbert, Esq.
THE GILBERT FIRM, P.C.
325 East 57th Street
New York, NY 10022
Telephone: (212) 286-8524
CREDIT CONTROL: Transfer of Watson to Michigan Eastern Dist. Denied
-------------------------------------------------------------------
In the case, SHANEQUA WATSON, on behalf of herself and all others
similarly situated, Plaintiffs, v. CREDIT CONTROL, LLC, Defendant,
Case No. 4:19CV137HEA (E.D. Mo.), Judge Henry Edward Autrey of the
U.S. District Court for the Eastern District of Missouri, Eastern
Division, denied the Plaintiff's Motion to Transfer Venue to the
Eastern District of Michigan.
The Plaintiff filed the putative class action in the Court based on
alleged violations of the Fair Debt Collection Practices Act
("FDCPA"). The Court's jurisdiction is based on federal question
jurisdiction. The Plaintiff claims in the putative class action
the Defendant violated the FDCPA by failing to notify her that a
partial payment of the debt the Defendant was attempting to collect
would restart the running of the statute of limitations.
The Plaintiff seeks to transfer venue to the Eastern District of
Michigan pursuant to 28 U.S.C. Section 1404(a). The Plaintiff now
argues that thes forum is no longer convenient for her because she
is unable to travel to Missouri from Michigan because she has no
childcare.
The Defendant opposes the Motion.
Judge Autrey finds the Plaintiff's argument unpersuasive. The case
is a putative class action which is brought on behalf of all
consumers with a Michigan address that have received the
Defendant's collection letters similar to the one Plaintiff
received. While the Plaintiff seeks to be the class
representative, she is not the only Plaintiff seeking recovery in
the action. If she cannot attend depositions and arbitration, and
presumably trial in the district, it would behoove her and the
purported class to seek a substitution Plaintiff for the class.
The Plaintiff chose to file the action in the District and the
parties have engaged in substantial preparation to date. While the
Plaintiff herself may now be inconvenienced by her choice of forum,
she has failed to demonstrate to the Court that all class members
are unable to participate in the action in the district.
Because the Plaintiff has not met her burden of showing the
convenience of the parties and witnesses and the interest of
justice strongly favor transfer to the Eastern District of
Michigan, Judge Autrey denied the Plaintiff's motion.
A full-text copy of the Court's Feb. 12, 2020 Opinion, Memorandum &
Order is available at https://is.gd/jhQsKT from Leagle.com.
Shanequa Watson, individually and on behalf of all other similarly
situated consumers, Plaintiff, represented by Daniel Zemel --
dz@zemellawllc.com -- ZEMEL LAW LLC.
Credit Control, LLC, Defendant, represented by Patrick A. Watts --
pat.watts@wattslawfirmpa.com -- Watts Law Group, LLC & Matthew John
Bell, MJB LAW LLC
ELECTROLUX HOME: Middle District of Pa. Narrows Claims in Rice Suit
-------------------------------------------------------------------
In the case, ELAINE RICE, ALEX KUKICH, ERIKA MENDOZA, JAMES HUNT,
and DEAN MAURO, Individually, and on behalf of all others similarly
situated, Plaintiffs, v. ELECTROLUX HOME PRODUCTS, INC., SHARP
MANUFACTURING COMPANY OF AMERICA, a division of SHARP ELECTRONICS
CORPORATION; SHARP APPLIANCES THAILAND LIMITED; MIDEA AMERICA
CORP.; MIDEA MICROWAVE AND ELECTRICAL APPLIANCES MANUFACTURING CO.,
LTD; LOWE'S HOME CENTERS, LLC; MODESTO DIRECT APPLIANCE, INC.; and
ABC CORP. 1-10, Defendants, Case No. 4:15-CV-00371 (M.D. Pa.),
Judge Matthew W. Brann of the U.S. District Court for the Middle
District of Pennsylvania (i) granted Sharp America's Motion to
Dismiss; (ii) granted Sharp Thailand's Motion to Dismiss; (iii)
granted Midea China's Motion to Dismiss; (iv) granted Midea
America's Motion to Dismiss; and (v) granted in part and denied in
part Electrolux, Lowe's, and Modesto's Partial Motion to Dismiss.
On Oct. 3, 2018, the named Plaintiffs, as well as other consumers
similarly situated, filed an Amended Consolidated Class Action
Complaint against seven Defendants. The Instant Complaint springs
from alleged defects in the stainless-steel handles of certain
microwaves that consumers install above their stove burner.
According to the Plaintiffs, these offending microwave handles
conduct too much heat from the stoves.
Plaintiffs Rice and Kukich bring the following claims against
Defendant Electrolux: (i) declaratory relief under 28 U.S.C.
Section 2201; (ii) strict liability under theories of a design
defect and failure to warn; (iii) negligent failure to warn; (iv)
violation of the Magnuson-Moss Consumer Products Warranties Act;
(v) breach of the implied warranty of merchantability; (vi) breach
of an express warranty; and (vii) negligence.
Plaintiffs Mendoza and Hunt bring the following claims against
Defendants Electrolux, Midea America, Midea Microwave and
Electrical Appliances Manufactured Co., Ltd. ("Midea China"), Sharp
America, Sharp Thailand, Lowe's, and Modesto: (i) violation of
California's Consumer Legal Remedies Act; (ii) violation of
California's Unfair Competition Law; and (iii) violation of
California's Song-Beverly Consumer Warranty Act.
Plaintiff Mauro brings the following claims: (i) Against Defendants
Electrolux, Midea America, Midea China, and Lowe's - violation of
New York's General Business Law Sections 349 and 350; (ii) against
Defendant Lowe's - violation of the Magnuson-Moss Act; (iii)
against Defendant Lowe's - breach of the implied warranty of
merchantability; and (iv) against Defendants Electrolux, Lowe's,
and Midea China - unjust enrichment.
On Sept. 9, 2019, all Defendants filed motions to dismiss the
Instant Complaint.
Judge Brann granted in part and denied in part the Defendants'
Motions to Dismiss and Partial Motion to Dismiss pursuant to Rule
12(b)(1), 12(b)(2), and 12(b)(6). Among other things, he (i)
agrees with Defendants Sharp Thailand and Midea China that the
Court lacks personal jurisdiction over them; (ii) finds that
Mauro's claims against Midea America for violation of New York's
General Business Law Sections 349 and 350 are dismissed because
they are time-barred; (iii) finds that because Kukich lacks privity
with Electrolux, and no exceptions apply, Kukich's breach of
express warranty claim against Electrolux is dismissed; (iv) finds
that Kukich's claims against Electrolux for breach of express
warranty and breach of implied warranty both fail; (v) that the
Plaintiffs have presented no authority suggesting that Consumer
Legal Remedies Act liability should extend to an entity that only
tested an offending product; and (vi) Mauro's has suffieciently
alleged that the Handle Defect manifested itself in Mauro's
Microwave.
The Judge denied leave to amend. Among the grounds that could
justify a denial of leave to amend are undue delay, bad faith,
dilatory motive, prejudice, and futility. "Futility" means that
the complaint, as amended, would fail to state a claim upon which
relief could be granted. Although there is a "liberal pleading
philosophy of the federal rules" a court will dismiss the amended
complaint in its entirety with prejudice because another
opportunity for amendment would be futile. Accordingly, if a claim
is vulnerable to dismissal under Rule 12(b)(6), but the plaintiff
moves to amend, leave to amend generally must be granted unless the
amendment would not cure the deficiency.
Given the procession of complaints, consolidation, and discovery in
the litigation, the Judge finds that further amendment would not
cure the deficiencies in the Plaintiffs' Instant Complaint. Leave
to amend is therefore denied. And, for the avoidance of doubt, the
claims that he identified as dismissed are dismissed with
prejudice.
An appropriate Order follows.
A full-text copy of the Court's Jan. 15, 2020 Memorandum Opinion is
available at https://is.gd/c9QNid from Leagle.com.
Elaine Rice, Individually, and on behalf of all others similarly
situated, Plaintiff, represented by Charles J. Kocher, Esq. --
ckocher@smbb.com -- Patrick Howard, Esq. -- phoward@smbb.com --
and -- Simon B. Paris, Esq. -- sparis@smbb.com -- SALTZ,
MONGELUZZI, BARRETT & BENDESKY, P.C. -- Raina C. Borrelli, Esq. -
- rborrelli@gustafsongluek.com -- Daniel E. Gustafson, Esq. --
dgustafson@gustafsongluek.com -- Jason S. Kilene, Esq. --
jkilene@gustafsongluek.com -- GUSTAFSON GLUEK PLLC -- Joseph G.
Price, Esq. -- jprice@dlplaw.com -- Paul T. Oven, Esq. --
ptoven@dlplaw.com -- and -- Sean P. McDonough, Esq. --
smcdonough@dlplaw.com -- DOUGHERTY, LEVENTHAL & PRICE, L.L.P.
Alex Kukich, Plaintiff, represented by Andrew N. Friedman --
friedman@cohenmilstein.com -- Cohen Milstein Sellers & Toll PLLC,
Charles J. Kocher, Saltz, Mongeluzzi, Barrett & Bendesky, P.C.,
Daniel E. Gustafson, Gustafson Gluek PLLC, Raina C. Borrelli,
Gustafson Gluek PLLC, Robert J. Barton -- joe@blockesq.com --
Block & Leviton LLP, Sally M. Handmaker --
handmaker@cohenmilstein.com -- Cohen Milstein Sellers and Toll
PLLC, pro hac vice, Simon B. Paris, Saltz, Mongeluzzi, Barrett &
Bendesky, P.C. & Patrick Howard, Saltz, Mongeluzzi, Barrett &
Bendesky, P.C.
Electrolux Home Products, Inc. is represented by David R. Fine,
Esq. -- david.fine@klgates.com -- David R. Osipovich, Esq. --
david.osipovich@klgates.com -- Loly G. Tor, Esq. --
loly.tor@klgates.com -- Michael S. Nelson, Esq. --
michael.nelson@klgates.com -- and -- Patrick J. Perrone, Esq. -
patrick.perrone@klgates.com -- K&L GATES LLP.
GENERAL MOTORS: Diesel Truck Owners Sue Over Defective Fuel Pump
----------------------------------------------------------------
Frank Ginebra, William J Crenshaw, Jr., Eileen R. Van Fossen,
Stephen J. Martin, James Aaron Aukes, Christafer Michael Wren,
Daniel B. Bass, Wayne R. Gilbert, Jr., Melody Anne Dearborn, Duane
Dee Meske, Ignacio Centeno, Nicholas Allen Miller, Bill Hoffman,
and Gordon Mac Johnson, individually and on behalf of all others
similarly situated, Plaintiffs, v. General Motors, Defendant, Case
No. 20-cv-10318, (S.D. Fla., February 7, 2020), seeks damages,
attorneys' fees and costs, and such other and further relief
resulting from breach of contract, negligence, deceit by
concealment and violation of the Magnuson-Moss Warranty Act and the
Florida Deceptive and Unfair Trade Practices Act.
Plaintiffs are owners of Silverado and Sierra diesel trucks
manufactured by General Motors. They claim that their vehicles
contain the CP4 fuel pump that is not compatible with American
diesel fuel. The latter allegedly contains less lubrication thus
running the fuel pump nearly dry. Air pockets form inside the pump
during operation, causing metal to rub against metal, generating
metal shavings which are dispersed throughout the fuel injection
system, contaminating and destroying the fuel system. [BN]
Plaintiffs are represented by:
Robert C. Hilliard, Esq.
HILLIARD MARTINEZ GONZALES LLP
719 S. Shoreline Boulevard
Corpus Christi, TX 78401
Telephone No: (361) 882-1612
Facsimile No: (361) 882-3015
Email: bobh@hmglawfirm.com
- and -
Steve W. Berman, Esq.
Sean R. Matt, Esq.
HAGENS BERMAN SOBOL SHAPIRO LLP
1301 Second Avenue, Suite 2000
Seattle, WA 98101
Telephone: (206) 623-7292
Facsimile: (206) 623-0594
Email: steve@hbsslaw.com
sean@hbsslaw.com
- and -
Andrew Parker Felix, Esq.
MORGAN & MORGAN, P.A.
20 North Orange Ave., Ste. 1600
P.O. Box 4979
Orlando, FL 32801
Telephone: (407) 244-3204
Facsimile: (407) 245-3334
E-Mail: Andrew@forthepeople.com
Kdimeglio@forthepeople.com
GOKUL RX: Court Denies Bid to Bifurcate Discovery in Katz TCPA Suit
-------------------------------------------------------------------
In the case, BRUCE KATZ, M.D., P.C., individually and on behalf of
all others similarly situated, Plaintiff, v. GOKUL RX LLC, a
Florida limited liability company, and BENZER FRANCHISING LLC, a
Florida limited liability company, Defendants, Case No.
8:19-cv-2210-T-35SPF (M.D. Fla.), Magistrate Judge Sean P. Flynn of
the U.S. District Court for the Middle District of Florida, Tampa
Division, denied the Defendants' Joint Motion to Bifurcate
Discovery.
Alleging violations of the Telephone Consumer Protection Act
("TCPA"), the Plaintiff sues the Defendants on behalf of himself
and a proposed class of others similarly situated. The Plaintiff
brings one count, alleging the Defendants used a fax machine,
computer, or other device to send unsolicited fax advertisements to
him and the other members of the proposed class, or the others did
so on their behalf. The unsolicited fax advertised the drug
Myorisan from Gokul's pharmacy. The claim against Benzer is based
on a theory of vicarious liability.
The Defendants seek to bifurcate individual merits discovery from
class discovery. They contend that bifurcating discovery will
allow the parties to preserve precious judicial resources and limit
costs to be incurred in litigating a putative class action.
Specifically, the Defendants argue the issue of whether Benzer can
be held vicariously liable for the alleged acts of Gokul in light
of their franchisor-franchisee relationship is a potentially
dispositive, threshold issue that must be resolved before the
parties engage in class discovery.
The Plaintiff opposes the bifurcation pointing to the risk of loss
of relevant evidence necessary to identify class members and their
damages. He also argues that it would be inefficient to bifurcate
discovery as proposed by the Defendants because the action will
continue against Gokul regardless of any decision as to Benzer's
vicarious liability and, given the overlap between class and merits
discovery and the lack of a unique defense as to the Plaintiff,
trying to limit discovery to individual merits issues will result
in needless discovery disputes. He suggests that each Defendant's
ability to move for summary judgment at any time during the
discovery period allows them to address a lack of vicarious
liability or an individualized defense to his claim as needed.
Considering all pertinent factors and the valid arguments made by
the parties, Magistrate Judge Flynn finds bifurcation is
unwarranted. The decision is supported by the likelihood of
overlap of individual and class discovery, the likelihood of
ensuing discovery motions, the likelihood of prejudice to the
nonmovant, the absence of evidence suggesting the claim of the
named Plaintiff lacks merit, and the interests of judicial economy.
The consideration of these factors additionally includes the
expectation that the parties will adhere to the proportionality
requirement of Rule 26(b)(1) and the availability of relief under
Rule 26(c)(1) should discovery become unduly burdensome or
expensive for the Defendants.
For these reasons, the Magistrate Judge denied the Defendants'
Joint Motion to Bifurcate Discovery.
A full-text copy of the District Court's Jan. 14, 2020 Order is
available at https://is.gd/1hHZei from Leagle.com.
Bruce Katz, M.D., P.C., Plaintiff, represented by Avi Robert
Kaufman -- kaufman@kaufmanpa.com -- Kaufman P.A.
Gokul RX LLC, Defendant, pro se.
Benzer Franchising LLC, Defendant, represented by Adam Michael
Foslid -- afoslid@sfslaw.com -- Stumphauzer Foslid Sloman Ross &
Kolaya.
GROWERS' CHOICE: Close of Discovery in Lizarraga Gets 240 More Days
-------------------------------------------------------------------
In the case, RAMON LIZARRAGA, and JAIME CARDENAS, on behalf of
themselves and all others similarly situated, Plaintiffs, v.
GROWER'S CHOICE, INC; ROBERT LONGSTRETH, an individual, and DOES
1-10, Defendants, Case No. 2:19-cv-00526-TLN-DB (E.D. Cal.), Judge
Troy L. Nunley of the U.S. District Court for the Eastern District
of California granted the Parties' Joint Stipulation to Extend the
Close of Discovery.
The date for close of discovery stated in the Initial Pretrial
Scheduling Order is modified to 240 days from Aug. 11, 2020, the
date of mediation. All other deadlines in the Initial Pretrial
Scheduling Order will conform to the new discovery cutoff date.
A full-text copy of the Court's Feb. 12, 2020 Order is available at
https://is.gd/365nhW from Leagle.com.
Ramon Lizarraga & Jaime Cardenas, Plaintiffs, represented by
Cecilia Guevara Zamora -- ezamora@crlaf.org -- California Rural
Legal Assistance Foundation, Cynthia Louise Rice -- crice@crla.org
-- California Rural Legal Assistance Foundation & Virginia R.
Villegas -- virginia@e-licenciados.com -- Villegas Carrera, Inc.
Robert Longstreth & Grower's Choice, Inc., Defendants, represented
by Andrew Hoon Woo -- awoo@littler.com -- Littler Mendelson PC &
Ryan Lee Eddings -- reddings@littler.com -- Littler Mendelson A
Professional Corporation.
HAWAII: Court Dismisses Grandinetti Prisoner Suit Without Prejudice
-------------------------------------------------------------------
Judge Derrick K. Watson of the U.S. District Court for the District
of Hawaii dismissed without prejudice the case, FRANCIS
GRANDINETTI, #A0185087, Plaintiff, v. DR. BRUCE S. ANDERSON, et
al., Defendants, Civ. No. 20-00014 DKW-KJM (D. Haw.).
Before the Court is pro se Grandinetti's "class" action alleged
against past and present Hawaii Governors, Lieutenant Governors,
Directors of the Department of Safety, Directors of the Department
of Health, Wardens at various state and Mainland prisons, members
of the Hawaii Paroling Authority, physicians, and Honolulu City and
County police officers. Liberally construed, Grandinetti complains
about the alleged uncleanliness of various private Mainland prisons
where he has been housed for the past 25 years.
Judge Watson finds that Grandinetti makes no discernible, concrete
claims linking any individual Defendant to any understandable
constitutional violation. Grandinetti has accrued three strikes
pursuant to 28 U.S.C. Section 1915(g), and he has been notified
regarding these strikes many times. He may not proceed in the
action without prepayment of the civil filing fee, unless his
pleadings show that he was in imminent danger of serious physical
injury when he brought the action.
He also finds that nothing in the Complaint and its exhibits
suggests that Grandinetti is or was in imminent danger of serious
physical injury when he filed the action, particularly by any
Defendants' conduct. Grandinetti alleges no facts that suggest
there is a continuing practice that injured him in the past and
that poses an "ongoing danger" to him at the Saguaro Correctional
Center, where he is currently confined. Moreover, Grandinetti may
not represent others in the alleged class action.
Judge Watson holds that Grandinetti may not proceed in forma
pauperis in the action and he has not paid the civil filing fee for
commencing a law suit. The Judge dismissed the action without
prejudice. The dismissal does not prevent Grandinetti from moving
to reopen the action with concurrent payment of the filing fee.
The Clerk is directed to terminate the case and enter judgment. In
light of Grandinetti's documented history of continuing to file
frivolous documents, motions, and requests in long-closed cases,
the Court will take no further action beyond processing a notice of
appeal, unless Grandinetti submits the civil filing fee to reopen
the action.
A full-text copy of the District Court's Jan. 14, 2020 Order is
available at https://is.gd/LQM38h from Leagle.com.
Francis Grandinetti, Plaintiff, pro se.
HUHTAMAKI INC: Chavez Suit Remanded to Los Angeles Superior Court
-----------------------------------------------------------------
Judge Otis D. Wright, II of the U.S. District Court for the Central
District of California granted Chavez's Motion to Remand the case,
JUAN J. CHAVEZ, Plaintiff, v. HUHTAMAKI, INC., Defendant, Case No.
2:19-cv-05930-ODW (JEMx) (C.D. Cal.), to the Superior Court of
California for the County of Los Angeles.
Chavez commenced the wage and hour class action against Huhtamaki
on behalf of himself and the class he seeks to represent. The
Plaintiff Class consists of all persons who worked for any
Defendant in California as an hourly paid, non-exempt employee at
any time during the period beginning four years before the filing
of the initial complaint in the action. Chavez is a citizen of
California and has worked at Huhtamaki for 36 years. Huhtamaki is
a Kansas Corporation.
Chavez alleges that Huhtamaki hired Chavez and other class members
and classified them as hourly-paid, non-exempt employees, and
failed to compensate them for all hours worked, meal periods,
and/or missed breaks. He does not allege a specific number of
violations, but he contends that the aggregate claims total only
$4,645,491.99, below the threshold for federal jurisdiction.
Whereas, Huhtamaki asserts that the aggregate claims total
$11,386,044, above the threshold for federal jurisdiction.
Chavez filed its complaint in Los Angeles Superior Court on June 5,
2019. On July 10, 2019, Huhtamaki removed the case, claiming
federal jurisdiction under the Class Action Fairness Act ("CAFA").
Chavez moved to remand on Aug. 8, 2019.
Judge Wright finds that Huhtamaki fails to proffer a preponderance
of evidence to support any of its assumed violation rates as
suitable for calculation purposes. The burden is upon Huhtamaki to
tip the scales in its favor, but it has failed to place sufficient
evidence upon the scales. Therefore, the Judge finds that
Huhtamaki has failed to submit adequate summary-judgment-type
evidence to establish by a preponderance of the evidence that the
amount in controversy is greater than $5 million. Consequently,
Judge Wright finds that the Court lacks subject matter jurisdiction
and must remand.
For the foregoing reasons, Judge Wright granted Chavez's Motion to
Remand. The case is remanded to the Superior Court of California
for the County of Los Angeles, Case No. 19STCV19491, located at 111
North Hill Street, Los Angeles, California 90012. The Clerk of the
Court will close the case in the California District Court.
A full-text copy of the Court's Jan. 14, 2020 Order is available at
https://is.gd/VXEp5y from Leagle.com.
Juan J. Chavez, individually, and on behalf of all others similarly
situated, Plaintiff, represented by Kane Moon, Moon and Yang APC,
Howard Scott Leviant, Moon and Yang APC & Lilit Ter-Astvatsatryan,
Moon and Yang APC.
Huhtamaki, Inc., a Kansas corporation, Defendant, represented by
Sarah Elana Ross -- sross@littler.com -- Littler Mendelson PC &
Alexandria Marie Witte -- awitte@littler.com -- Littler Mendelson
PC.
IRON MOUNTAIN: Modica Granted Leave to File Amended Labor Suit
--------------------------------------------------------------
In the case, JENNIFER MODICA, individually and on behalf of other
similarly situated current and former employees and as proxy for
the LWDA, Plaintiff, v. IRON MOUNTAIN INFORMATION MANAGEMENT
SERVICES, INC., a Delaware corporation; and DOES 1-100, inclusive,
Defendants, Case No. 2:19-cv-00370-TLN-EFB (E.D. Cal.), Judge Troy
L. Nunley of the U.S. District Court for the Eastern District of
California granted the Plaintiff leave to file the First Amended
Class Action and Individual Complaint for Damages ("FAC").
Upon review of the parties' Stipulation and Joint Request For Leave
to File First Amended Class Action and Individual Complaint for
Damages, and pursuant to Fed. R. Civ. Proc. Rules 15(a) and 16(b),
Judge Nunley determines that there is good cause to grant the
Plaintiff leave to file the FAC. The Plaintiff was directed to
file the First Amended Complaint without delay. The Defendant's
answer originally filed will be operative as against the FAC and it
does not have to file an answer to the FAC unless the Parties'
negotiated settlement is not approved by the Court.
A full-text copy of the District Court's Jan. 14, 2020 Order is
available at https://is.gd/LsgaZM from Leagle.com.
Jennifer Modica, individually and on behalf of other similarly
situated current and former employees and as proxy for the LWDA,
Plaintiff, represented by Jenny Dione Baysinger --
jbaysinger@mayallaw.com -- Mayall Hurley, PC, Nicholas John
Scardigli -- nscardigli@mayallaw.com -- Mayall Hurley, PC, Robert
Joshua Wasserman -- rwasserman@mayallaw.com -- Mayall Hurley, PC &
William J. Gorham, III -- wgorham@mayallaw.com -- Mayall Hurley,
PC.
Iron Mountain Information Management Services, Inc., a Delaware
Corporation, Defendant, represented by Monica Alejandra Rodriguez
-- marodriguez@usc.edu -- Seyfarth Shaw LLP & Catherine S. Feldman
-- cfeldman@seyfarth.com -- Ogletree Deakins Nash Smoak and Stewart
PC.
JONES PIPELINE: Moscot Seeks to Recover Unpaid Overtime Wages
-------------------------------------------------------------
Job Moscot, individually and on behalf of others similarly situated
v. JONES PIPELINE SERVICES, LLC, Case No. 7:20-cv-00059-DC-RCG
(W.D. Tex., March 6, 2020), is brought to recover unpaid overtime
wages and other damages owed to the Plaintiff under the Fair Labor
Standards Act.
According to the complaint, the Defendant does not pay its health,
safety, and environment (HSE) specialists, like the Plaintiff,
overtime pay as required by the FLSA. Instead, the Defendant
misclassifies its HSE Specialists as exempt from the overtime
provisions of the FLSA.
The Defendant violates the FLSA because its HSE Specialists are
owed overtime pay for hours worked in excess of 40 in a week and
because its HSE Specialists' primary job duties are non-exempt,
says the complaint.
Plaintiff Moscot worked for the Defendant as an HSE Specialist from
February 2018 to July 2019.
JPS provides pipeline logistics services to the oil and gas
pipeline industry, including rail logistics, pipe logistics,
transport (loading and unloading), storage and staging, pipe
traceability, and pipe stringing.[BN]
The Plaintiff is represented by:
Richard J. (Rex) Burch, Esq.
Michael K. Burke, Esq.
BRUCKNER BURCH PLLC
8 Greenway Plaza, Suite 1500
Houston, TX 77046
Phone: (713) 877-8788
Facsimile: (713) 877-8065
Email: rburch@brucknerburch.com
mburke@brucknerburch.com
- and -
Andrew W. Dunlap, Esq.
JOSEPHSON DUNLAP LAW FIRM
11 Greenway Plaza, Suite 3050
Houston, TX 77046
Phone: 713-352-1100
Facsimile: 713-352-3300
Email: adunlap@mybackwages.com
LODGING SOLUTIONS: Underpays Airline Support Specialists
--------------------------------------------------------
NESIA ALLEN, individually and on behalf of all others similarly
situated, Plaintiff v. LODGING SOLUTIONS, LLC; ACCOMMODATION
SERVICES, INC.; ACCOMMODATIONS PLUS INC.; API AIRPORT SERVICES LLC;
ANTOINE KAMEL; FRED KAMEL; RAMZI KAMEL; RICH MCLEER; DONNA MCMANUS;
SANDRA CROSBY; LOU ORSI, and JOHN DOE ENTITIES 1-100, Defendants,
Case No. 1:20-cv-00859 (E.D.N.Y., Feb. 18, 2020) seeks to recover
from the Defendants unpaid wages and overtime compensation,
interest, liquidated damages, attorneys' fees, and costs under the
Fair Labor Standards Act.
The Plaintiff Allen was employed by the Defendants as airline
support specialist.
Lodging Solutions, LLC was founded in 2004. The Company's line of
business includes providing various business services. [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
Telephone: (212) 465-1180
MARISCOS EL PUERTO: Gutierrez Granted Leave to Amend Labor Suit
---------------------------------------------------------------
In the case, AYDE AZUCCERA PEREZ GUTIERREZ; BRENDA KARLA GABRELA
REYES MEDRANO; ADRIANA TORRES; ERIKA SOCORRO VALLE PERALTA;
SALVADOR VLADIMIR JIMENEZ FLORES; and VIRIDIANA RAMIREZ RODRIGUEZ,
Plaintiffs, v. MARISCOS EL PUERTO, INC.; LA CATRINA, LLC; LA
CATRINA ENTERTAINMENT, LLC; MANUELA HERNANDEZ; JULIAN HERNANDEZ;
HECTOR MORENO; and DANNY HERNANDEZ, Defendants, Case No.
2:19-CV-01940-JCM-EJY (D. Nev.), Magistrate Judge Elayna J. Youchah
of the U.S. District Court for the District of Nevada granted (i)
the Plaintiffs' Motion for Leave to Amend the Complaint to Add
Additional Plaintiffs, and (ii) the Plaintiffs' Supplement to their
Motion for Leave to Amend.
The Plaintiffs' Complaint states a collective action under the Fair
Labor Standards Act, for alleged violations of 29 U.S.C. Section
201 et seq., as well as a class action under Fed. R. Civ. P. 23 for
alleged violations of Nevada law. The Plaintiffs' Motion and
Supplement seek to add named Plaintiffs to the caption of the
complaint, correct typographical errors, and add clarification and
references to events that allegedly occurred after the filing of
the initial complaint.
Having received no opposition to the amendment proposed, and
finding no prejudice or delay will arise from the Plaintiffs'
proposed Amended Complaint as a scheduling order was just entered
by the Court on Jan. 22, 2020, Judge Youchah granted the (i)
Plaintiffs Motion for Leave to Amend the Complaint to Add
Additional Plaintiffs, and (ii) the Plaintiffs' Supplement to their
Motion for Leave to Amend.
The Clerk of Court will separate and electronically file the
Plaintiffs' First Amended Complaint. The Defendants' responsive
pleading will be due in accordance with the Federal Rules of Civil
Procedure.
A full-text copy of the Court's Feb. 12, 2020 Order is available at
https://is.gd/tOIrmp from Leagle.com.
Ayde Azuccera Perez Gutierrez, Brenda Karla Gabrela Reyes Medrano,
Adriana Torres, Erika Socorro Valle Peralta, Salvador Vladimir
Jimenez Flores, Viridiana Ramirez Rodriguez, Antonio Morales
Rodriguez, Griselda Rodriguez Quinones, Sugey Paola Chaidez
Machado, Alejandro Giles Nieves, Clarisa Ana Jose Florian, Sergio
Valle Martinez & Cecilia Alejandra Soto Almodovar, Plaintiffs,
represented by Jakub P. Medrala -- jmedrala@medralaw.com -- The
Medrala Law Firm, PLLC.
Mariscos El Puerto, Inc., La Catrina, LLC, La Catrina
Entertainment, LLC, Manuela Hernandez, Julian Hernandez, Hector
Moreno & Danny Hernandez, Defendants, represented by Michelle D.
Alarie -- malarie@atllp.com -- Armstrong Teasdale LLP, Tracy
DiFillippo -- tdifillippo@atllp.com -- Armstrong Teasdale LLP &
Tiffany A. Kahler -- tkahler@atllp.com -- Armstrong Teasdale LLP.
MY FINANCIAL SOLUTIONS: Bids to Dismiss Montelongo Suit Denied
--------------------------------------------------------------
In the case, MAIRA MONTELONGO, Plaintiff, v. MY FINANCIAL
SOLUTIONS, LLC, STUDENT RENEW LLC, ANGELA MIRABELLA, NICK CAPOSIO,
Defendants, Case No. SA-19-CV-00577-JKP (W.D. Tex.), Judge Jason
Pulliam of the U.S. District Court for the Western District of
Texas, San Antonio Division, (i) denied Caposio's Motion to
Dismiss, and (ii) denied without prejudice Mirabella's Motion to
Dismiss.
The case arises under the Telephone Consumer Protection Act
("TCPA"). Montelongo's Amended Complaint, the operative pleading,
alleges she received calls initiated by an automated telephone
dialing system and telemarketing calls from individuals
representing My Financial Solutions and Student Renew both before
and after she informed caller Caposio that she did not want to
receive any more calls. Montelongo alleges the calls were designed
to deceive Texas residents with student debt into paying for
services the Department of Education offers free of charge.
Defendants Caposio and Mirabella move the court to dismiss
Montelongo's Amended Complaint for lack of personal jurisdiction
over each, individually. They each contend that Montelongo cannot
establish sufficient contacts with Texas to confer personal
jurisdiction.
With respect to the Court's jurisdiction over the action,
Montelongo avers the Court has general and specific jurisdiction
over the Defendants because they have repeatedly placed calls to
Texas residents, derive revenue from Texas residents, sells goods
and services to Texas residents, including the Plaintiff and
committed a tort in Texas by violating the TCPA. The Court has
specific personal jurisdiction over the Defendants because the
calls at issue were made by or on behalf of the defendants into
this district, and the Plaintiff resides in the district.
Judge Pulliam holds that accepting Montelongo's allegations as
true, that she received three phone calls from Caposio's direct
line after she requested no further calls, Caposio has accepted the
benefits of doing business in Texas and is subject to the TCPA
action in the forum because the litigation relates to Caposio's
conduct in the forum. When the record demonstrates that a
defendant has sufficient minimum contacts with a forum, a court
must deny a Rule 12(b)(2) motion to dismiss unless the defendant
makes a compelling case that the presence of some other
consideration would render jurisdiction unreasonable. Caposio's
argument is not compelling.
Judge Pulliam also finds that Montelongo alleges sufficient
contacts with the state of Texas to show that Mirabella has
accepted the benefits of doing business in Texas and is subject to
the TCPA action in the forum. Mirabella alleges no compelling case
that the presence of some other consideration would render
jurisdiction unreasonable. Should discovery reveal that Mirabella
was not the "guiding spirit" or "central figure" behind the alleged
TCPA violations; that Mirabella did not control the day-to-day
operations of My Financial Solutions and Student Renew; and that
she had no direct, personal involvement in the alleged wrongful
conduct that violated the TCPA or directly controlled and
authorized the conduct, Mirabella may reurge the motion.
For the reasons stated, Judge Pulliam (i) denied Caposio's Motion
to Dismiss, and denied without prejudice Mirabella's Motion to
Dismiss.
A full-text copy of the District Court's Jan. 14, 2020 Order is
available at https://is.gd/7sxyzj from Leagle.com.
Maira Montelongo, Plaintiff, represented by Leland Garrett McRae --
info@lelandmcrae.com -- Leland Garrett McRae Attorney at Law.
My Financial Solutions LLC, Student Renew LLC & Angela Mirabella,
Defendants, represented by Chuck Bretz, Bretz, Flynn & Associates,
P.C., pro hac vice, Dan Joe Vana -- danvana@benlawsa.com --
Benjamin, Vana, Martinez & Biggs, LLP & Joseph A. Namikas, Bretz,
Flynn & Associates, P.C., pro hac vice.
Nick Caposio, Defendant, represented by Joseph A. Namikas, Bretz,
Flynn & Associates, P.C..
NASSAU COUNTY, NY: Bid for Judgment on Pleadings in Davidson Okayed
-------------------------------------------------------------------
In the case, DANIELLE DAVIDSON, SUSAN CHODKOWSKI, GARY VOLPE,
MATTHEW SARTER, WENDY NEAL, DEBORAH PEDENZIN, ROSANNA LAURO, and
all others similarly situated, Plaintiffs, v. COUNTY OF NASSAU,
Defendant, Case No. CV 18-1182 (GRB) (E.D. N.Y.), Judge Gary R.
Brown of the U.S. District Court for the Eastern District of New
York granted Defendant Nassau's motion for judgment on the
pleadings.
The Plaintiffs assert violations of the federal Equal Pay Act, and
the New York State Equal Pay Act, New York Labor Law ("NYLL")
Section 194, based upon allegations that the predominantly female
Police Communication Operators and Police Communication Operator
Supervisors ("PCOs") receive substantially less compensation than
the predominantly male Fire Communication Technicians and Fire
Communication Technician Supervisors ("FCTs") within the County's
Police Department.
The Plaintiffs are current and former PCOs within the County's
Police Department. The duties of PCOs include receiving telephone
calls placed on the County's 911 emergency system, deciding the
appropriate response to each of the calls, and if necessary,
dispatching the appropriate aid depending upon the gravity of the
emergency situation. The Plaintiff alleges that presently
approximately 200 PCOs employed by the County, over 90% of whom,
are female.
As to FCTs, the Plaintiffs allege that FCTs are employed within the
same facility and perform virtually identical duties for the County
as PCOs. They also allege that the "overwhelming majority" of the
FCTs are male.
The Plaintiffs commenced the putative collective and class action
by filing a verified complaint on Feb. 23, 2018. The case was
originally assigned to the Honorable Arthur D. Spatt. The
Defendant filed an answer on May 1, 2018, and an amended answer on
May 18, 2018.
On July 20, 2018, the Defendant moved to consolidate the case with
Chodkowski v. County of Nassau, No. 16-CV-5770, which case was
assigned to the Hon. Sandra J. Feuerstein. On Sept. 18, 2018,
Judge Spatt reassigned the case to Judge Feuerstein, but denied
without prejudice the motion to consolidate this case with
Chodkowski v. County of Nassau.
The Plaintiffs moved to conditionally certify a collective action
on Nov. 8, 2018, and moved to certify a class action on Dec. 3,
2018. On Feb. 11, 2019, the case was transferred to Judge Brown as
U.S. Magistrate Judge upon the parties' consent to U.S. Magistrate
Judge jurisdiction.
On June 6, 2019, the Court conditionally certified a collective
action. On July 9, 2019, the motion to certify a class action was
deemed withdrawn without prejudice to renewal at a later date.
Several parties consented to joining the collective action. On
Dec. 12, 2019, the Defendant filed the instant motion.
Judge Brown finds that the Plaintiffs fail to allege sufficient
factual matter, accepted as true to permit the reasonable inference
that the relevant employees' job content was substantially equal.
Rather, the complaint merely alleges that male FCTs are employed
within the same facility and perform virtually identical duties for
the County as PCOs. As the Second Circuit has made clear, such
conclusory assertions are insufficient to survive a motion for
judgment on the pleadings. Therefore, the federal Equal Pay Act
claim is dismissed without prejudice.
The Judge dismissed with prejudice the Plaintiffs' New York State
Equal Pay Act claim under NYLL Section 194. He rejects the
Plaintiffs' argument that the County is not an exempt governmental
agency under NYLL Section 190(3) because it is not a subdivision of
a municipality, it is the municipality itself. He finds that
Nassau County is a governmental agency within the meaning of the
NYLL.
Both parties seek leave to replead. The Plaintiffs seeks leave to
replead the complaint in the event that the complaint does not
state a plausible claim for relief. The Defendant seeks leave to
amend the amended answer to raise affirmative defenses under the
federal Equal Pay Act.
The Judge granted both parties leave to replead. There is no
evidence of bad faith, undue delay, or prejudice at this early
juncture. Furthermore, neither amendment of the complaint nor the
Amended Answer would be futile. As both parties cite, it is
entirely contrary to the spirit of the Federal Rules of Civil
Procedure for decisions on the merits to be avoided on the basis of
mere technicalities. The Rules themselves provide that they are to
be construed to secure the just, speedy, and inexpensive
determination of every action.
Based on the foregoing, Judge Brown granted the Defendant's motion
for judgment on the pleadings. The federal Equal Pay Act claim is
dismissed without prejudice, and the New York State Equal Pay Act
claim is dismissed with prejudice. The Plaintiffs are directed to
file its amended complaint within 14 days of the Memorandum and
Order. Defendant is directed to file a second amended answer within
14 after the Plaintiff's service of the amended complaint.
A full-text copy of the Court's Feb. 26, 2020 Memorandum & Order is
available at https://is.gd/sybbzp from Leagle.com.
Patrick M. McKenna, Mediator, pro se.
Danielle Davidson, Susan Chodkowski, Gary Volpe, Matthew Sarter,
Wendy Neal, Deborah Pedenzin & Rosanna Lauro, and all others
similarly siutuated, Plaintiffs, represented by Louis D. Stober,
Jr. -- lstober@stoberlaw.com -- Law Offices of Louis D. Stober,
Jr., LLC & Jason Paul Mansmann, Law Offices of Louis D. Stober,
Jr., LLC.
County Of Nassau, Defendant, represented by Deanna Darlene Panico
-- dpanico@beereadylaw.com -- Bee Ready Fishbein Hatter & Donovan,
LLP, Michael Paul Siravo -- msiravo@beereadylaw.com -- Bee Ready
Fishbein Hatter & Donovan, LLP, Rhoda Yohai Andors --
randors@beereadylaw.com -- Bee Ready Fishbein Hatter & Donovan, LLP
& Stephen Louis Martir -- smartir@beereadylaw.com -- Bee Ready
Fishbein Hatter and Donovan.
NEW CASTLE REALTY: Gallo Sues Over Illegal Telemarketing Calls
--------------------------------------------------------------
Pamela Gallo, individually and on behalf of all others similarly
situated, Plaintiff, v. New Castle Realty, Inc., Defendant, Case
No. 20-cv-60270 (S.D. Fla., February 8, 2020), seeks statutory
damages and any other available legal or equitable remedies for
violations of the Telephone Consumer Protection Act.
New Castle Realty operates a real estate brokerage in Broward
County, Florida. It utilized prerecorded messages to place calls to
promote its products and services as part of its marketing
strategy. At no point in time did Gallo provide them with his
express written consent to be contacted using an automated dialer,
says the complaint. [BN]
Plaintiff is represented by:
Ignacio Hiraldo
IJH LAW
1200 Brickell Ave. Suite 1950
Miami, FL 33131
Telephone: (786) 496-4469
Email: IJHiraldo@IJHLaw.com
- and -
Michael Eisenband, Esq.
EISENBAND LAW, P.A.
515 E. Las Olas Boulevard, Suite 120
Ft. Lauderdale, FL 33301
Telephone: (954) 533-4092
Email: MEisenband@Eisenbandlaw.com
NEXTGEAR CAPITAL: Court Clarifies Class Definition in Red Barn Suit
-------------------------------------------------------------------
In the case, RED BARN MOTORS, INC., PLATINUM MOTORS, INC., and
MATTINGLY AUTO SALES, INC., Plaintiffs, v. NEXTGEAR CAPITAL, INC.
f/k/a DEALER SERVICES CORPORATION, successor by merger with Manheim
Automotive Financial Services, Inc., Defendant, Case No.
1:14-cv-01589-TWP-DLP (S.D. Ind.), Judge Tanya Walton Pratt of the
U.S. District Court for the Southern District of Indiana,
Indianapolis Division, (i) granted the Plaintiffs' Motion for Leave
to File Proposed Order and Reasons and Motion to Strike, (i) denied
NextGear's Motion to Decertify Class, (iii) granted NextGear's
Motion to Modify Class Certification Order to Narrow Class, (iv)
denied NextGear's Alternative Motion to Modify Class Certification
Order to Narrow Class, (iv) denied as moot NextGear's Motion to
Stay Discovery and Class Notice and Objections to Magistrate
Judge's Orders, and (v) granted in part and denied in part the
Plaintiffs' Motion to Revise Class Definition and Proceed with
Class Notice.
The Plaintiffs are used car dealerships. Red Barn is a used car
dealership in Denham Springs, Louisiana, which began operations in
2010. Platinum Motors was a small used car dealership located in
Chesapeake, Virginia. It operated from approximately 2009 to 2014.
The records of the Virginia State Corporation Commission indicate
that Platinum Motors' corporate existence has been terminated.
Mattingly Auto sells used cars at its Hardinsburg, Kentucky car
lot, which began operations in approximately 2003.
Defendant NextGear is an automotive financing company that offers
revolving line-ofcredit financing to used car dealers throughout
the United States. This line-of-credit financing is often called a
"floorplan". Used car dealers utilize floorplans to purchase
vehicle inventory, which then is resold at their used car
dealerships. NextGear was initially formed as Dealer Services
Corporation and began doing business in 2005 as an independent
automotive financing company. Dealer Services Corp. was acquired
by Cox Automotive, Inc. on March 1, 2012. In January 2013, a Cox
Automotive affiliate and former competitor of Dealer Services
Corporation was merged into Dealer Services Corporation and the
merged companies were renamed NextGear.
NextGear's floorplan agreements allow used car dealers to purchase
vehicles for resale from auctions and other locations without
having to pay cash for the vehicles. Instead, the dealer puts the
vehicle purchase on the floorplan agreement, and NextGear takes the
credit risk while the dealer tries to sell the vehicle. A
floorplan allows dealers to obtain possession of vehicles for their
inventory on the date of purchase but defer payment until later.
When a dealer floorplans a vehicle, NextGear becomes obligated to
pay the auction the price of the vehicle.
Under the floorplan agreements, the car dealers agree to pay the
amount borrowed, interest, and fees to NextGear in exchange for the
credit and financing. Dealers grant a security interest in the
purchased vehicles and in their inventory to NextGear to secure the
dealers' debt. After a dealer sells the financed vehicle or the
transaction reaches the maturity date, the dealer must pay the debt
to NextGear. While there are a small number of instances where
individual contract negotiations occurred, NextGear's floorplan
agreement is "generally a take-it-or-leave-it" contract/
The Plaintiffs each executed a floorplan agreement with NextGear,
whereby the Plaintiffs were provided lines of credit for financing
their used car dealership operations. After the Plaintiffs
discovered that NextGear had been charging interest and fees on
money that it had not yet actually paid on the Plaintiffs' behalf,
they initiated the lawsuit against NextGear and other Defendants.
They asserted claims for breach of contract, constructive fraud,
unjust enrichment, tortious interference, violation of the
Racketeer Influenced and Corrupt Organizations Act ("RICO"), and a
RICO conspiracy.
Following a motion to dismiss the claims, the Court dismissed the
unjust enrichment, tortious interference, and RICO conspiracy
claims. The Court also dismissed the breach of contract and
constructive fraud claims against other defendants, Cox Automotive
and John Wick, and all claims against other defendant Cox
Enterprises, Inc.
The Plaintiffs sought class certification on their claims for a
class involving all used car dealers in the United States of
America that were parties to a Floorplan Agreement with DSC, now
known as NextGear, effective during the time period of January 2005
through July 2013.
On June 29, 2017, the Court granted class certification on the
Plaintiffs' breach of contract claim against NextGear and the
substantive RICO claim against NextGear, Cox Automotive, and John
Wick, but class certification was denied on the constructive fraud
claim.
The certified class was defined as all used car dealers in the
United States of America that were parties to a Floorplan Agreement
with DSC, now known as NextGear, effective during the time period
of January 2005 through July 2013, with a subclass for all
California used car dealers that were parties to a Floorplan
Agreement with DSC, nown known as NextGear, effective during the
time period of January 2005 through July 2013, which Floorplan
Agreement requires the application of California law.
The parties sought summary judgment on the remaining claims, and
NextGear asked the Court to reconsider the class certification
decision and to decertify the class. On Jan. 12, 2018, the Court
granted NextGear's motion to reconsider and decertified the class
on the Plaintiffs' breach of contract claim against NextGear and
the substantive RICO claim against NextGear, Cox Automotive, and
John Wick. Also on Jan. 12, 2018, the Court granted summary
judgment on the constructive fraud claim in favor of NextGear and
on the RICO claim in favor of NextGear, Cox Automotive, and John
Wick. The summary judgment Order left the breach of contract claim
against NextGear as the only remaining claim to be decided at
trial.
Soon thereafter, the Plaintiffs filed a notice of appeal, asking
the Seventh Circuit Court of Appeals to review the Court's Order
decertifying the class action. In its decision, the Seventh
Circuit noted, the appeal presents us with only the narrow issue of
whether the district court erred in rescinding class certification.
In reaching its decision, the Seventh Circuit explained that the
court's denial of class certification lacks sufficient reasoning
for the Court, on review, to ascertain the basis of its decision,
and absent a more thorough explanation of its reasoning, the OCurt
cannot uphold the decision decertifying the class. The decision of
the district court is vacated and the case remanded for further
proceedings.
With the class decertification Order having been vacated, the case
was returned to the status of a class action on the sole remaining
claim for breach of contract against NextGear. In the pending
Motions, NextGear asks the Court to decertify the class,
alternatively modify and narrow the class, stay discovery and class
notice, and vacate the Magistrate Judge's Orders denying a stay of
class discovery and denying a stay of class notice. The Plaintiffs
ask the Court to revise the class definition and to allow the
parties to proceed with class notice, to strike the declarations
that NextGear submitted with its Motion to Decertify Class, and to
grant them leave to submit a proposed order concerning NextGear's
Motion to Decertify Class.
Judge Pratt finds that NextGear does not oppose the Plaintiffs'
request for leave to submit a proposed order, but objects to the
content of the Plaintiffs' Proposed Order, which misstates the law
and the parties' positions, as briefed. In order to provide equal
consideration and treatment to the parties, the Judge grants the
Plaintiffs' unopposed Motion for Leave to File Proposed Order and
Reasons.
She also finds that because the Plaintiffs did not have any
opportunity to conduct discovery as to these four
specifically-named witnesses in connection with the Motion to
Decertify -- thus resulting in unfair prejudice -- the Judge grants
the Plaintiffs' Motion to Strike the declarations. She will not
consider the declarations when deciding the Motion to Decertify.
While some of NextGear's defenses may require consideration of
individual issues, many of its defenses can be resolved class-wide.
The evidence suggests that many defenses can be resolved
class-wide because they depend upon a dealer's knowledge of when
interest began to accrue compared to when NextGear actually paid
the auction houses or a dealer having any knowledge at all that
NextGear paid the auction houses subsequent to when it began
collecting interest. The Judge is persuaded by the evidence and
arguments that the common questions, evidence, and common answers
predominate over any individual questions concerning some of the
defenses raised by NextGear. She determines that the breach of
contract claim against NextGear should proceed as a class action.
Therefore, she denies NextGear's Motion to Decertify Class.
The Judge further finds that the forum selection clause does not
supersede the arbitration clause thereby making the arbitration
clause meaningless or superfluous. Furthermore, the dispute
resolution clause does not, as the Plaintiffs suggest, create an
informal mediation option that can be chosen by a dealer. Rather,
the dispute resolution clause unambiguously requires arbitration.
And the forum selection clause applies to matters not subject to
arbitration such as proceedings to enforce or vacate an arbitration
award, a motion to compel arbitration, or litigation with dealers
who opted out of the arbitration provision. For these reasons,
NextGear's Motion to Modify Class Certification Order to Narrow
Class is granted. The Judge will modify the class definition to
exclude from the class the 9,940 customer-dealers who executed the
2013 agreement that contained the arbitration and class waiver
provisions.
NextGear has asserted that dealers knew or could have known how
interest was charged as of the date they entered into transactions
with NextGear, but the evidence suggests that the dealers and even
the NextGear account executives did not know when NextGear paid the
auction houses. Dealers would need to have this information in
addition to "how interest was charged" in order to realize that
they had a claim for breach of contract for allegedly improperly
charged interest. It appears that this issue may be resolved for
the class as a whole or to large groups of class members.
Therefore, the Judge determines that this issue does not
necessitate narrowing the class or decertifying the class. For
these reasons, she denies NextGear's Alternative Motion to Modify
Class Certification Order to Narrow Class.
NextGear's Motion to Stay Discovery and Class Notice and Objections
to Magistrate Judge's Orders ask the Court for an order staying
class discovery and class notice until the Court has an opportunity
to rule on NextGear's motions addressing whether the case should
proceed on a class basis and, if so, the scope of any class that
remains certified. Because the Judge has ruled upon NextGear's
motions addressing class certification and the scope of the class
in the sections above, she denies as moot these Objections and
Motion.
Finally, with no objection from NextGear, the Jduge determines that
it is appropriate to revise the class definition as proposed by the
Plaintiffs to reflect the developments revealed through discovery.
Therefore, she will modify the class definition to include only
those dealers who floor planned one or more vehicles with NextGear
under their agreements. NextGear's position regarding the
propriety of the proposed class notice is well-taken. The parties
should first confer to attempt to reach an agreement about class
notice before the Court orders such class notice. Accordingly, the
Plaintiffs' Motion to Revise Class Definition and Proceed with
Class Notice is granted in part and denied in part.
In light of te foregoing, Judge Pratt (i) granted the Plaintiffs'
Motion for Leave to File Proposed Order and Reasons and Motion to
Strike, (i) denied NextGear's Motion to Decertify Class, (iii)
granted NextGear's Motion to Modify Class Certification Order to
Narrow Class, (iv) denied NextGear's Alternative Motion to Modify
Class Certification Order to Narrow Class, (iv) denied as moot
NextGear's Motion to Stay Discovery and Class Notice and Objections
to Magistrate Judge's Orders, and (v) granted in part and denied in
part the Plaintiffs' Motion to Revise Class Definition and Proceed
with Class Notice.
Based on these rulings, the Plaintiffs' claim for breach of
contract against NextGear will proceed as a class action for the
following class and subclass:
a. Class of all used car dealers in the United States of
America that were parties to a Floorplan Agreement with DSC, now
known as NextGear, effective during the time period of January 2005
through July 2013, and that floor planned one or more vehicles with
DSC/NextGear under such agreement, excluding any dealer that signed
an agreement containing an arbitration or class action waiver
provision.
b. Subclass of all California used car dealers that were
parties to a Floorplan Agreement with DSC, nown known as NextGear,
effective during the time period of January 2005 through July 2013,
which Floorplan Agreement requires the application of California
law, and that floor planned one or more vehicles with DSC/NextGear
under such agreement, excluding any dealer that signed an agreement
containing an arbitration or class action waiver provision.
The Judge directed the parties to promptly contact the Magistrate
Judge to schedule a conference to discuss any remaining class
discovery needs and to facilitate class notice and to discuss a
date when the parties will be ready for trial.
A full-text copy of the Court's Feb. 26, 2020 Order is available at
https://is.gd/2W9xNT from Leagle.com.
RED BARN MOTORS, INC., Plaintiff, represented by Cassie E. Felder ,
THE CASSIE FELDER LAW FIRM, Catherine E. Lasky , JONES SWANSON
HUDDELL & GARRISON, LLC, pro hac vice, Gladstone N. Jones , JONES
SWANSON HUDDELL & GARRISON, LLC, pro hac vice, Jacob A. Airey ,
SHER GARNER CAHILL RICHTER KLEIN & HILBERT, LLC., pro hac vice,
James M. Garner , SHER GARNER CAHILL RICHTER KLEIN & HILBERT, LLC,
pro hac vice, Kathleen Ann DeLaney -- kathleen@delaneylaw.net --
DELANEY & DELANEY LLC, Kerry A. Murphy , JONES, SWANSON, HUDDELL &
GARRISON, LLC, pro hac vice, Lynn E. Swanson --
lswanson@jonesswanson.com -- JONES, SWANSON, HUDDELL& GARRISON,
LLC, pro hac vice, Matthew M. Coman, SHER GARNER CAHILL RICHTER
KLEIN & HILBERT LLC, pro hac vice & Ryan D. Adams --
radams@shergarner.com -- SHER GARNER CAHILL RICHTER KLEIN & HILBERT
LLC, pro hac vice.
PLATINUM MOTORS, INC. & MATTINGLY AUTO SALES, INC., Plaintiffs,
represented by Cassie E. Felder , THE CASSIE FELDER LAW FIRM,
Catherine E. Lasky , JONES SWANSON HUDDELL & GARRISON, LLC, Jacob
A. Airey , SHER GARNER CAHILL RICHTER KLEIN & HILBERT, LLC., pro
hac vice, Kathleen Ann DeLaney , DELANEY & DELANEY LLC, Kerry A.
Murphy , JONES, SWANSON, HUDDELL & GARRISON, LLC, pro hac vice,
Matthew M. Coman , SHER GARNER CAHILL RICHTER KLEIN & HILBERT LLC &
James M. Garner , SHER GARNER CAHILL RICHTER KLEIN & HILBERT, LLC.
NEXTGEAR CAPITAL, INC., f/k/a DEALER SERVICES CORPORATION,
successor by merger with Manheim Automotive Financial Services,
Inc., Defendant, represented by David J. Jurkiewicz --
djurkiewicz@boselaw.com -- BOSE MCKINNEY & EVANS, LLP, Jason S.
McCarter -- jasonmccarter@eversheds-sutherland.com -- EVERSHEDS
SUTHERLAND (US) LLP, pro hac vice, Paul D. Vink --
pvink@boselaw.com -- BOSE MCKINNEY & EVANS, LLP, Steven D. Groth,
BOSE MCKINNEY & EVANS, LLP & Tracey K. Ledbetter --
traceyledbetter@eversheds-sutherland.com -- EVERSHEDS SUTHERLAND
(US) LLP, pro hac vice.
NOBLESVILLE, IN: Court Denies Bid to Certify Class in Webster Suit
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In the case, WILLIAM J. WEBSTER, JOE DUEPNER, and ANDREW DOLLARD,
on behalf of themselves and all others similarly situated,
Plaintiffs, v. CITY OF NOBLESVILLE, NOBLESVILLE POLICE DEPARTMENT,
KEVIN JOWITT, Chief of Police, in his official capacity, JOHN
DITSLEAR, Mayor of Noblesville, in his official capacity, and
COMMON COUNCIL OF THE CITY OF NOBLESVILLE, Defendants, Case No.
1:18-cv-01132-TWP-DLP (S.D. Ind.), Judge Tanya Walton Pratt of the
U.S. District Court for the Southern District of Indiana,
Indianapolis Division, denied the Plaintiffs' Motion for Class
Certification.
The Plaintiffs filed the action alleging the Defendants violated
their state and federal rights to due process by enforcing a city
ordinance that allowed Noblesville police officers to issue parking
tickets but did not provide a means for the recipients to contest
those tickets.
In 1989, the town of Noblesville, Indiana enacted Ordinance No.
65-7-89, the purpose of which was regulating traffic upon the
public streets and alleys of Noblesville. The Ordinance announced
how citizens could lawfully stop, stand, or park a vehicle. The
Ordinance also described how citizens would be notified of parking
violations (via a notice placed on the offending vehicle) and how
those violations would be penalized (a $10.00 fine if paid within
one week).
The traffic regulations originally promulgated by the Ordinance
were later codified as the Noblesville Traffic Code ("NTC"), which
currently regulates parking in Noblesville. Noblesville Code of
Ordinances, Title VII, Chapters 70-78.1 Since 1989, the laws
governing parking in Noblesville have changed. For example, the
NTC now includes a schedule of fines, increasing each week until
the parking ticket is paid. The NCT also empowers Noblesville to
attach a "boot" to a car after the owner accumulates enough parking
violations, rendering the car immobile until the owner pays his
prior fines and a fee to remove the boot. However, it was not
until May 23, 2018, that Noblesville amended the NTC to establish a
procedure by which an individual can appeal a parking violation and
associated fines. Before that date, there was no formal way for a
person to challenge a parking violation charged in Noblesville.
Between Aug. 17, 1989 and May 23, 2018, Noblesville handed out
thousands of parking tickets, none of which were appealable.
The Plaintiffs allege the prior lack of appeals process violates
the due process clauses of the United States Constitution and the
Indiana Constitution. They seek to certify the following class
under Federal Rule of Civil Procedure 23: All those who received a
notice of parking violation in the City of Noblesville between Aug.
17, 1989 and May 23, 2018 and, as a result of their receipt of said
notice, paid any monetary fines (the fine for an alleged parking
violation, late fees, wheel boot fees, towing fees, and/or storage
costs) and/or were deprived of the use of their vehicle due to the
application of a wheel boot or seizure by towing. The Plaintiffs
also move to be appointed as Representatives of the Class and to
have their counsel, Wagner Reese, LLP, appointed as the Class
Counsel.
The three Plaintiffs are attorneys working in Hamilton County,
Indiana who have received notice of parking violations from
Noblesville dating back at least 22 years. During work hours, they
often used two-hour street parking and attempted to move their cars
every two hours before Noblesville ticketed them. This strategy
resulted in many parking tickets, often for "overtime" parking, but
sometimes for other reasons such as "improper parking to curb."
The Defendants are all people or governmental bodies that have some
connection to writing, enacting, or enforcing the NTC. Defendant
Common Council of the City of Noblesville was responsible for
adopting ordinances governing Noblesville. The Council created
Noblesville's Traffic Commission and charged it with a duty to
recommend to the Council and to the traffic engineer, the chief of
the traffic division and other city officials ways and means for
improving traffic conditions and the administration and enforcement
of traffic regulations. The Council required that prior to
adoption of an ordinance concerning traffic control by the City
Council, Noblesville's Traffic Committee was to submit a report,
study, investigation, and recommendation to the responsible body.
The NTC required Noblesville's Police Chief and Police Officers to
enforce the street traffic regulations of Noblesville; to direct
other officers of Noblesville in the administration of traffic
laws; and to carry out those duties specifically imposed upon said
office by the NTC.
Because the Plaintiffs did not meet their burden of showing they
are adequate class representatives under Rule 23(a)(4), Judge Pratt
denied the Plaintiffs' Motion for Class Certification.
She found that Webster's prior involvement as counsel in the case
highly relevant to his adequacy as a class representative.
Moreover, there is scant evidence in the record that would
illuminate Duepner's and Dollard's relationship to Webster. The
three men merely shared an office building approximately seven
years ago. As far as the Court knows, neither Duepner nor Dollard
have ever acted as co-counsel with Webster in a different matter.
The Court does not have enough information to form an opinion on
whether Duepner or Dollard have an interest in the fees class
counsel --including Webster -- will ultimately receive in the
case.
The Judge held that the dearth of evidence weighs against the
Plaintiffs, who bear the burden of proof in establishing each of
the requirements under Rule 23. The failure to satisfy any one of
these elements precludes certification. Moreover, the Seventh
Circuit has said that adequacy can be defeated by even an
appearance of improper conflict of interest. Irrespective of
Duepner's and Dollard's actual interest in the attorneys' fees in
the case, the longstanding relationship of Duepner, Dollard, and
Webster gives the case the appearance of manufactured litigation.
Because Duepner's and Dollard's posture as the class
representatives creates an impression of impropriety, and because
the Plaintiffs have failed to meet their burden of showing they are
adequate class representatives under Rule 23(a)(4), Duepner and
Dollard are disqualified as the class representatives, rules the
Court.
A full-text copy of the Court's Feb. 12, 2020 Order is available at
https://is.gd/QaPJhz from Leagle.com.
WILLIAM J. WEBSTER, JOE DUEPNER & ANDREW DOLLARD, on behalf of
themselves and all others similarly situated, Plaintiffs,
represented by Stephen M. Wagner, WAGNER REESE LLP & Timothy Loren
Karns, WAGNER REESE LLP.
CITY OF NOBLESVILLE, NOBLESVILLE POLICE DEPARTMENT, KEVIN JOWITT,
Chief of Police, in his official capacity, JOHN DITSLEAR, Mayor of
Noblesville, in his official capacity & COMMON COUNCIL OF THE CITY
OF NOBLESVILLE, Defendants, represented by Adam Spencer Ira --
aira@k-glaw.com -- KIGHTLINGER & GRAY & Robert M. Kelso --
rkelso@k-glaw.com -- KIGHTLINGER & GRAY, LLP.
NORTHERN CALIFORNIA: $225K Osegueda Suit Deal Has Prelim Approval
-----------------------------------------------------------------
In the case, JOSEPH OSEGUEDA, individually and on behalf of all
similarly situated and/or aggrieved employees of Defendants in the
State of California, Plaintiff, v. NORTHERN CALIFORNIA INALLIANCE;
and DOES 1 through 50, inclusive, Defendants, Case No. 18-cv-00835
WBS EFB (E.D. Cal.), Judge William B. Shubb of the U.S. District
Court for the Eastern District of California granted the
Plaintiff's unopposed motion for preliminary approval of a class
action settlement reached by the parties.
Defendant InAlliance is a non-for-profit that provides independent
living services to adults with developmental disabilities. These
services enable participants to live independently in their own
home, instead of living with family or in communal housing. The
Plaintiff worked for InAlliance as an Independent Living
Facilitator in Sacramento and Yolo County in 2017.
As a Living Facilitator, the Plaintiff assisted participants with
personal care and tasks around the home. InAlliance classified the
Plaintiff and other Living Facilitators as "personal attendants"
and did not pay them for daily overtime. InAlliance also allegedly
required Living Facilitators to use their personal cell phones to
communicate with their supervisors and did not pay Living
Facilitators for "sleep time" during shifts of 24 hours or longer.
The Plaintiff brought the action against the Defendant, alleging:
(1) failure to pay minimum and regular wages; (2) failure to pay
overtime wages; (3) failure to indemnify necessary business
expenses; (4) failure to provide accurate itemized wage statements;
(5) failure to timely pay all ages due upon separation of
employment; (6) violation of California's Business and Professions
Code; (7) violation of California's Private Attorneys General Act
of 2004 ("PAGA"); and (8) violation of the Fair labor Standards Act
("FLSA").
The Defendant removed the action to the Court in April 2018 and
denied any liability or wrongdoing of any kind. After exchanging
initial disclosures and completing an independent investigation,
the parties participated in a private mediation and eventually
reached a settlement agreement.
Under the terms of the agreement, InAlliance will pay a
non-reversionary sum of $225,000. The total settlement amount
would be distributed as follows: (1) a maximum of $75,000 to the
class counsel for attorney's fees; (2) a maximum of $9,000 to the
class counsel for reimbursement of out-of-pocket expenses; (3) an
award of $5,000 to the Plaintiff for serving as the class
representative; (4) $11,250 to the California Labor & Workforce
Development Agency ("LWDA") to cover the cost of penalties, with
75% of the award going to LWDA and the remaining 25% to the PAGA
Aggrieved Employees; (5) a maximum of $10,500 to the settlement
administrator, ILYM Group, Inc., for reimbursement of settlement
administration costs; and (7) the remaining amount, approximately
$122,526.50 ("class fund") to the participating class members.
The parties now seek the Court's preliminary approval of the
proposed settlement agreement.
Judge Shubb granted the Plaintiff's motion for preliminary
certification of a conditional settlement class and preliminary
approval of the class action settlement. He provisionally
certified for the purpose of settlement the class of all current or
former employees of InAlliance who worked in the State of
California in the position of Independent Living Facilitator
("ILF") at any time from Feb. 22, 2014 through Jan. 15, 2020. In
the event that the proposed settlement is not consummated for any
reason, the conditional certification will be of no further force
or effect and will be vacated without further action or order of
the Court.
For purposes of carrying out the terms of the settlement only, the
Judge appointed (i) Joseph Osegueda as the representative of the
settlement class; (ii) the law firm of GrahamHollis APC as the
class counsel; and (iii) ILYM Group as the settlement
administrator.
The form and content of the proposed Notice of Class Action
Settlement is approved, except to the extent that it must be
updated to reflect dates and deadlines specified in the Order.
No later than 10 days from the date the Order is signed, the
Defendant's counsel will provide the names and contact information
of all the settlement class members to ILYM Group. No later than
14 days from the date the Defendant submits the contact information
to ILYM Group, ILYM will mail a Notice of Class Action Settlement
to all the members of the settlement class. No later than 60 days
from the date the Order is signed, any member of the settlement
class who intends to object to, comment upon, or opt out of the
settlement will mail written notice of that intent to ILYM Group
pursuant to the instructions in the Notice of Class Action
Settlement/
A final fairness hearing will be held before the Court on May 18,
2020 at 1:30 p.m.
No later than 28 days before the final fairness hearing, the Class
counsel will file with the Court a petition for an award of
attorney's fees and costs. Any objections or responses to the
petition will be filed no later than 14 days before the final
fairness hearing. The class counsel may file a reply to any
objections no later than seven days before the final fairness
hearing.
No later than 28 days before the final fairness hearing, the class
counsel will file and serve upon the Court and the Defendant's
counsel all papers in support of the settlement, the incentive
award for the class representative, and any award for attorney's
fees and costs.
No later than 28 days before the final fairness hearing, ILYM Group
will prepare, and the class counsel will file and serve upon the
Court and the Defendants' counsel, a declaration setting forth the
services rendered, proof of mailing, a list of all the class
members who have opted out of the settlement, a list of all the
class members who have commented upon or objected to the
settlement.
Any person who has standing to object to the terms of the proposed
settlement must file no later than 90 days from the date the Order
is signed. Responses to any such objections will be filed no later
than 14 calendar days before the final fairness hearing. The
Objectors may file optional replies no later than seven calendar
days before the final fairness hearing.
A full-text copy of the Court's Jan. 15, 2020 Memorandum is
available at https://is.gd/UiMbPM from Leagle.com.
Joseph Osegueda, Plaintiff, represented by Graham S.P. Hollis -
ghollis@grahamhollis.com - GrahamHollis, APC, Nicole Rachelle
Roysdon - nroysdon@wilsonturnerkosmo.com - GrahamHollis, APC &
Vilmarie Cordero, Graham Hollis A.P.C., 3555 Fifth Avenue, Suite
200, San Diego, CA 92103.
Northern California Inalliance, Defendant, represented by Matthew
Charles Jaime - mjaime@mathenysears.com - Matheny Sears Linkert
and
Long & Robert W. Sweetin - rsweetin@mathenysears.com- Matheny
Sears Linkert & Jaime, LLP.
OHIO: Mag. Judge Recommends Final Approval of Doe Suit Settlement
-----------------------------------------------------------------
In the case, John Doe, et al., Plaintiffs, v. State of Ohio, et al.
Defendants, Case No. 2:91-cv-00464 (S.D. Ohio), Magistrate Judge
Norah McCann King of the U.S. District Court for the Southern
District of. Ohio, Eastern Division, recommended that the Court
grants (i) the Parties' Joint Motion for Final Approval of the
Settlement Agreement, and (ii) the Plaintiffs' Motion for
Attorney's Fees and Costs.
The case began almost two decades ago. As it developed over the
years, the central focus of the case became whether the Defendants
were meeting their obligations to provide a "free appropriate
public education" ("FAPE") under the Individuals with Disabilities
Education Act ("IDEA"), and Section 504 of the Rehabilitation Act
of 1973.
In 1996, the Court certified a class of all children, ages three
through 21, currently enrolled or seeking enrollment, now or in the
future, in Ohio's public school system, who have a disability and
who require, as a result of their disability, special education and
related services or accommodations that are designed to meet
individual educational needs of students with disabilities as
adequately as the needs of nondisabled children are met, and the
parents or guardians of such children.
The current phase of litigation began in October 2009, after the
parties had entered into a limited Consent Decree. The Plaintiffs
asserted at that stage that there are systemic denials of FAPE in
at least 11 urban districts and that Ohio has failed to meet its
obligations under IDEA and Section 504 to identify and eliminate
these systemic violations. The record reflects extensive
discovery, including numerous depositions and expert reports by
both sides. In October 2017, the Parties began an extended
mediation, with Columbus attorney Frank Ray acting as the mediator.
Through mediation, the parties came to a settlement of their
claims, memorialized in the Settlement Agreement executed in
November 2018.
The terms of the Agreement are designed to improve special
education both across the State and especially in the 11 Districts.
The Parties agreed that the Ohio Department of Education ("ODE")
will develop a plan for a redesigned state support system for
special education, with a particular focus on the 11 Districts.
The State's Plan will be designed to improve rates of achievement,
including least restrictive environment ("LRE") rates, for students
with disabilities, particularly in the 11 Districts. The Parties'
Settlement Agreement will be implemented over a period of five
years and includes a dispute resolution process that provides for,
as necessary and appropriate, resort to the Court.
During mediation, although after the Parties had reached agreement
on substantive terms, Supplemental Declaration of Kerstin Sjoberg,
the Parties also agreed to a resolution of the Plaintiffs' claim
for fees and costs. During mediation, the Parties agreed that the
Defendants would pay the Plaintiffs $3 million over a period of
five years in full satisfaction of the Plaintiffs' claim for
attorneys' fees and costs. The Parties also agree that this
payment would include any future claim for fees and expenses for
the Plaintiffs' attorneys' work on or with the Advisory Group.
The Court granted preliminary approval of the Settlement Agreement,
directed that notice be provided to the members of the Class
consistent with the Parties' proposed procedure, and set the matter
for a final fairness hearing on Feb. 11, 2020.
On Dec. 2, 2019, ODE posted the Notice on its website and sent the
Notice via email to all Local Education Agencies ("LEA"), State
Support Teams ("SST"), and Educational Service Centers ("ESC") and
requested that each post the Notice on their websites as well as in
a central location in all buildings open to the public. ODE also
requested that school districts send the Notice directly to the
parents or students through email, any electronic portals or other
means reasonably calculated to reach the parents or students in
their district.
Disability Rights Ohio also posted the Notice on its website on
Nov. 12, 2019, and sent the Notice through its Constant Contact
listserv and posted the Notice on its Facebook page on Nov. 13,
2019. Disability Rights Ohio also provided the Notice to all the
class representatives on Nov. 26, 2019, as well as to all
individuals who called and requested a copy. By the end of the
comment period, Disability Rights Ohio had received 43 telephone
calls and e-mails. Finally, Disability Rights Ohio provided
information, including the Notice, to over 15 organizations so that
they could, in turn, disseminate the Notice to the individuals whom
they serve.
As directed by the Court, the Parties met their notice obligations
and provided the required documentation to the Court by Dec.r 5,
2019.
Magistrate Judge King held a Fairness Hearing on Feb. 11, 2020.
The counsel, the Named Plaintiffs, and the other Class Members were
present. All the counsel supported the final approval of the
Settlement Agreement. The Magistrate also heard from four Class
Members or stakeholder who had submitted timely comments, three of
whom supported the proposed settlement and one of whom objected.
The Magistrate recommended that the Parties' Joint Motion for Final
Approval of the Settlement Agreement, and the Plaintiffs' Motion
for Attorney's Fees and Costs be granted. She found that the
proposed settlement is fair, reasonable, and adequate, in the best
interest of the Class, and qualifies for approval pursuant to Rule
23(e).
She further recommended that the Court finds the following:
1. That the proposed settlement is fair, reasonable, and
adequate, in the best interest of the Class, and qualifies for
approval pursuant to Rule 23(e). The Court directs the parties to
implement the settlement in accordance with the terms and
conditions of the Settlement Agreement.
2. That the requirements of Rule 23 and due process have been
satisfied in connection with the distribution of notice to the
Class.
3. That the Plaintiffs should be awarded attorneys' fees and
costs in the amount of $3 million, inclusive of attorney fees,
costs and expenses, which is a negotiated amount that is
reasonable.
4. The Defendants represent that they have notified
appropriate state officials pursuant to the Class Action Fairness
Act.
5. Approve dismissal of the case with prejudice. All Released
Claims should be extinguished, discharged, and released against any
and all the Released Parties, without costs except as provided.
The class members retain their rights to pursue an administrative
or judicial action claiming that, as to that the class member
alone, the class member is not receiving the special education
services in the LRE to which the class member is entitled, under
IDEA, Section 504, or Ohio law.
6. The Court retains jurisdiction over the case to enforce the
terms of the Settlement Agreement, and to resolve any and all
disputes thereunder.
If any party seeks review by the District Judge of the Report and
Recommendation, that party may, within 14 days, file and serve on
all parties objections to the Report and Recommendation,
specifically designating this Report and Recommendation, and the
part in question, as well as the basis for objection. Response to
objections must be filed within fourteen (14) days after being
served with a copy.
The parties are specifically advised that the failure to object to
the Report and Recommendation will result in a waiver of the right
to de novo review by the District Judge and waiver of the right to
appeal the judgment of the District Court.
A full-text copy of the Court's Feb. 12, 2020 Report &
Recommendation is available at https://is.gd/lBEvTW from
Leagle.com.
L.J., a minor, by and through her parents, Mr. and Mrs. J.J.,
Plaintiff, represented by Kerstin Sjoberg, Disability Rights Ohio,
Douglas Gustave Green -- dgreen@steptoe.com -- Steptoe & Johnson
LLP, pro hac vice, Ira A. Burnim, pro hac vice, Jason Charles
Boylan, Disability Rights Ohio, Laura A. Osseck, Disability Rights
Ohio, Lewis L. Bossing, Judge Bazelon Center for Mental Health Law,
pro hac vice, Michael Kirkman, Disability Rights Ohio & Vanessa K.
Miller-Coterel, Ohio Legal Rights Service.
B.H., a minor, by and through his parents D.H., C.S., a minor, by
and through his parent, A.S. & Z.D., a minor, by and through his
parents S.D. and G.D., Plaintiffs, represented by Kerstin Sjoberg,
Disability Rights Ohio, Douglas Gustave Green, Steptoe & Johnson
LLP, pro hac vice, Ira A. Burnim, pro hac vice, Jason Charles
Boylan, Disability Rights Ohio, Laura A. Osseck, Disability Rights
Ohio & Lewis L. Bossing, Judge Bazelon Center for Mental Health
Law, pro hac vice.
C.M.U., Plaintiff, represented by Kerstin Sjoberg, Disability
Rights Ohio, Douglas Gustave Green, Steptoe & Johnson LLP, pro hac
vice, Ira A. Burnim, pro hac vice, Laura A. Osseck, Disability
Rights Ohio & Lewis L. Bossing, Judge Bazelon Center for Mental
Health Law, pro hac vice.
State Board of Education of Ohio, Defendant, represented by Mark
David Landes -- mlandes@isaacwiles.com -- Isaac Wiles Burkholder &
Teetor, LLC, Todd Robert Marti, Ohio Attorney General, Aaron
Michael Glasgow -- aglasgow@isaacwiles.com -- Isaac, Wiles,
Burkholder & Teetor, LLC, Brandon Lee Abshier, ISAAC, WILES,
BURKHOLDER &TEETOR, LLC, Maribeth Meluch -- mmeluch@isaacwiles.com
-- Isaac Wiles Burkholder & Teetor, LLC, Mark Alan VanderLaan --
mark.vanderlaan@dinsmore.com -- Dinsmore & Shohl, Robert Curtis
Perryman -- rperryman@isaacwiles.com -- Isaac Wiles Burkholder &
Teetor, LLC & William M. Mattes -- bill.mattes@dinsmore.com --
Dinsmore & Shohl.
Ohio Department of Education, Defendant, represented by Mark David
Landes, Isaac Wiles Burkholder & Teetor, LLC, Todd Robert Marti,
Ohio Attorney General, Aaron Michael Glasgow, Isaac, Wiles,
Burkholder & Teetor, LLC, Brandon Lee Abshier, ISAAC, WILES,
BURKHOLDER &TEETOR, LLC, Maribeth Meluch, Isaac Wiles Burkholder &
Teetor, LLC, Mark Alan VanderLaan, Dinsmore & Shohl, Robert Curtis
Perryman, Isaac Wiles Burkholder & Teetor, LLC, Roger Francis
Carroll, Ohio Attorney General & William M. Mattes, Dinsmore &
Shohl.
State of Ohio, The Office for Early Learning and School Readiness,
Ohio Department of Education, Ted Strickland & Deborah S. Delisle,
Defendants, represented by Mark David Landes, Isaac Wiles
Burkholder & Teetor, LLC, Todd Robert Marti, Ohio Attorney General,
Aaron Michael Glasgow, Isaac, Wiles, Burkholder & Teetor, LLC,
Brandon Lee Abshier, ISAAC, WILES, BURKHOLDER &TEETOR, LLC & Robert
Curtis Perryman, Isaac Wiles Burkholder & Teetor, LLC.
John Kasich, in his official capacity as Governor of the State of
Ohio & Richard Ross, in his official capacity as the State
Superintendent of Public Instruction, Defendants, represented by
Mark David Landes, Isaac Wiles Burkholder & Teetor, LLC, Aaron
Michael Glasgow, Isaac, Wiles, Burkholder & Teetor, LLC & Brandon
Lee Abshier, ISAAC, WILES, BURKHOLDER &TEETOR, LLC.
Ohio Coalition for Equity & Adequacy of School Funding, Amicus,
represented by C. Allen Shaffer, Bricker & Eckler LLP & Nicholas
Andrew Pittner, Bricker & Eckler.
Ohio Education Association, Amicus, represented by Linda Kathryn
Fiely, Ohio Education Assc. & Christine A. Reardon, Kalniz, Iorio &
Feldstein.
John Doe, Intervenor Plaintiff, represented by Michael Kirkman,
Disability Rights Ohio & Vanessa K. Miller-Coterel, Ohio Legal
Rights Service.
QUANTCAST CORP: Can Compel Arbitration in Brown FLSA Suit
---------------------------------------------------------
In the case, TAG BROWN, Plaintiff, v. QUANTCAST CORP., Defendant,
Case No. 19-cv-05773-EMC (N.D. Cal.), Judge Edward M. Chen of the
U.S. District Court for the Northern District of California granted
the Quantcast's motion to compel arbitration with respect to Mr.
Brown and each of the five other former employees, subject to
severance of the offending provisions in the first offer letters.
Plaintiff Brown has filed a putative class and collective action
against Defendant Quantcast, his former employer. According to Mr.
Brown, Quantcast is a website analytics company. He worked for
Quantcast as a sales representative for which he was paid a salary
plus commissions. He was deemed exempt from overtime pay.
Mr. Brown has brought suit because he maintains that Quantcast
misclassified him and others similarly situated as exempt from
overtime. Mr. Brown has asserted a claim for failure to pay
overtime under the federal Fair Labor Standards Act ("FLSA") as
well as a claim for violation of California Business & Professions
Code Section 17200.
Since Mr. Tag has filed suit, five other former employees of
Quantcast have opted into the FLSA collective action -- namely: (i)
Jalen Ransome, (ii) Tyler Berg, (iii) Sam Awrabi, (iv) Andrea
Primer, and (v) Pierce McManus.
Quantcast now moves to compel arbitration with respect to Mr. Brown
and each of the five other former employees. Quantcast argues that
arbitration must be compelled because each individual has an
offer-of-employment letter that contains an arbitration provision.
According to Quantcast, some of the individuals are also subject to
arbitration based on provisions in their sales commission plans and
severance agreements.
For purposes of the pending motion, the Court need only consider
the offer letters. There are two different offer letters that
cover the six individuals. The parties have referred to them as
the first and second offer letters, respectively, and the Court
will do the same. Mr. Brown and Mr. Berg received the first offer
letter. Ms. Primer, Mr. Ransome, Mr. Awrabi, and Mr. McManus
received the second offer letter.
Mr. Brown and Mr. Berg challenge the first offer letter on three
grounds: (1) the arbitration provision does not cover the claims at
issue; (2) there was no "meeting of the minds" regarding
arbitration; and (3) the arbitration provision is unconscionable
and severance cannot save it.
Judge Chen holds that the first offer letter's arbitration
provision may be enforced, conditioned upon severance of the two
substantively unconscionable terms. With respect to the fee
provision, there is a plausible though not convincing argument that
the fee provision does not encumber employees with excessive
arbitration fees. Hence, the agreement is not permeated with
unconscionability. Moreover, severance is possible -- i.e., the
Court may strike both the term that provides a carve-out from
arbitration and the term that provides for application of the JAMS
Comprehensive Rules. With the severance of the Comprehensive Rules
provision, Mr. Brown and Mr. Berg would not be required to pay
arbitration fees and costs.
Ms. Primer, Mr. Ransome, Mr. Awrabi, and Mr. McManus each received
the second offer letter. They argue procedural unconscionability
because the second offer letter is a contract of adhesion; they
argue substantive unconscionability because of lack of mutuality --
i.e., based on the exception to arbitration that each party may, at
its, his or her option, seek injunctive relief in court related to
the improper use, disclosure or misappropriation of a party's
private, proprietary, confidential or trade secret information.
The Judge holds that the analysis is similar to that above with
respect to the alleged unconscionability of the first offer
letter's arbitration provision -- with two exceptions. First, the
second offer letter's arbitration provision makes a carve out not
for just disputes that arise from the confidentiality agreement,
but rather for disputes that relate to the improper use, disclosure
or misappropriation of a party's private, proprietary, confidential
or trade secret information. Second, the second offer letter does
refer to the JAMS employment arbitration rules which protects
employees from excessive arbitration fees. Any substantive
unconscionability is thus minimal. Given the minimal procedural
unconscionability, he holds that the second offer letter's
arbitration provision may be enforced.
Based on the foregoing, Judge Chen granted the motion to compel
arbitration subject to severance of the offending provisions in the
first offer letters. Because all individuals' claims will be
subject to arbitration, he will also stay proceedings in the case,
providing that, if any suit or proceeding be brought in any of the
courts of the United States upon any issue referable to arbitration
under an agreement in writing for such arbitration, the court in
which such suit is pending, upon being satisfied that the issue
involved in such suit or proceeding is referable to arbitration
under such an agreement, will on application of one of the parties
stay the trial of the action until such arbitration has been had in
accordance with the terms of the agreement, providing the applicant
for the stay is not in default in proceeding with such
arbitration.
A full-text copy of the Court's Dec. 11, 2019 Order is available at
https://is.gd/vG0apR from Leagle.com.
Tag Brown, individually and on behalf of all others similary
situated, Plaintiff, represented by Daniel S. Brome --
dbrome@nka.com -- Nichols Kaster, LLP, Austin Harris Kaplan --
akaplan@kaplanlawatx.com -- Kaplan Law Firm, PLLC, pro hac vice &
Matthew C. Helland -- helland@nka.com -- Nichols Kaster, LLP.
Quantcast Corp., Defendant, represented by Guinevere Louise Jobson,
Fenwick & West LLP, Jason C. Schwartz -- jschwartz@gibsondunn.com
-- pro hac vice, Rachel S. Brass -- rbrass@gibsondunn.com -- Gibson
Dunn & Crutcher LLP, Joseph Abraham Gorman --
jgorman@gibsondunn.com -- Gibson Dunn and Crutcher LLP & Naima
Lillian Farrell -- nfarrell@gibsondunn.com -- Gibson, Dunn and
Crutcher LLP, pro hac vice.
SERVICE CORP: Wins Summary Judgment in Bernstein Suit
-----------------------------------------------------
In the case, CAROLINE BERNSTEIN, an individual, MARLA UROFSKY on
behalf of RHEA SCHWARTZ, an individual, on behalf of themselves and
all others similarly situated, Plaintiffs, v. SERVICE CORPORATION
INTERNATIONAL and SCI PENNSYLVANIA FUNERAL SERVICES, INC.,
Defendants, Civil Action No. 17-4960 (E.D. Pa.), Judge Gerald
Austin McHugh of the U.S. District Court for the Eastern District
of Pennsylvania granted the Defendants' Motion for Summary
Judgment.
A full-text copy of the Court's Jan. 14, 2020 Order is available at
https://is.gd/VLkKFQ from Leagle.com.
MARJORIE SCHAEFER, AN INDIVIDUAL, ON BEHALF OF THEMSELVES AND ALL
OTHERS SIMILARLY SITUATED, CAROLINE BERNSTEIN, AN INDIVIDUAL, ON
BEHALF OF THEMSELVES AND ALL OTHERS SIMILARLY SITUATED & MARLA
UROFSKY, ON BEHALF OF RHEA SCHWARTZ, AN INDIVIDUAL, ON BEHALF OF
THEMSELVES, AND ALL OTHERS SIMILARLY SITUATED, Plaintiffs,
represented by BRYAN R. LENTZ -- blentz@bochettoandlentz.com --
BOCHETTO & LENTZ PC & JOSEPH G. SAUDER -- jgs@mccunewright.com --
McCune Wright Arevalo LLP.
n
SCI PENNSYLVANIA FUNERAL SERVICES, INC. & SERVICE CORPORATION
INTERNATIONAL, INC., doing business as SHALOM MEMORIAL PARK AND
FOREST HILLS CEMETERY, Defendants, represented by CATHLEEN M.
DEVLIN -- cathleen.devlin@saul.com -- SAUL EWING ARNSTEIN & LEHR
LLP, JOHN F. STOVIAK -- john.stoviak@saul.com -- SAUL EWING
ARNSTEIN & LEHR LLP & ALBERT FRANCIS MORAN --
albert.moran@saul.com
-- SAUL EWING ARNSTEIN & LEHR LLP.
SFBSC MANAGEMENT: 9th Cir. Flips Roes FLSA Suit Settlement Approval
-------------------------------------------------------------------
In the case, JANE ROES, 1-2, on behalf of themselves and all others
similarly situated, Plaintiff-Appellee, CV LB v. SFBSC MANAGEMENT,
LLC; CHOWDER HOUSE, INC.; DEJA VU-SAN FRANCISCO, LLC; ROARING 20'S,
LLC; GARDEN OF EDEN, LCC; S.A.W. ENTERTAINMENT LIMITED; DEJA VU
SHOWGIRLS OF FRANCISCO, LLC; GOLD CLUB-S.F., LLC; BIJOU-CENTURY,
LLC; BT CALIFORNIA, LCC, Defendants-Appellees, v. SARAH MURPHY;
POOHRAWN MEHRABAN; DEVON LOCKE, Objectors-Appellants, Case Nos.
17-17079, 14-3616 (9th Cir.), the U.S. Court of Appeals for the
Ninth Circuit reversed the district court's approval of the class
notice and of the class action settlement.
The case arises out of a dispute under federal and California labor
law whether exotic dancers working at various nightclubs in San
Francisco were misclassified as independent contractors rather than
being treated as employees. In 2014, Plaintiffs Jane Roes Nos. 1-2
filed the putative class and collective action alleging violations
of the Fair Labor Standards Act ("FLSA"), and various provisions of
the California Labor Code and San Francisco municipal ordinance.
The named Plaintiffs, as well as the nearly 4,700 members of the
putative Rule 23 class, worked as exotic dancers at 11 adult
entertainment clubs in San Francisco. The Plaintiffs brought suit
against SFBSC, which, "broadly speaking," managed the 11 nightclubs
where class members worked.
The Plaintiffs alleged that they were misclassified as independent
contractors and should have been classified as employees of SFBSC.
They sought to recover the following categories of damages on a
classwide basis: unpaid minimum wages under federal, state, and San
Francisco law for all hours worked on the clubs' premises;
reimbursement of stage fees paid to the clubs for each night that a
dancer worked; unpaid overtime wages; liquidated damages; PAGA
penalties; and attorneys' fees and costs.
The district court approved a class action settlement that was
negotiated in the absence of a certified class. First, the
proposed settlement provided for two tiers of cash: a first tier of
$2 million and a possible second tier of up to $1 million. The
First Tier Cash Pool would be used for: (1) cash compensation to
Settlement Class Members who timely elected to receive a Cash
Payment, (2) attorneys' fees and expenses, (3) enhancement payments
of up to $71,000 total, (4) a $100,000 PAGA payment,2 and (5)
administrative costs of up to $50,000. Only if the sum of those
five items exceeded $2 million, would the defendants be required to
fund the Second Tier Cash Pool in the amount, up to $1 million,
sufficient to fully cover the sum of the valid claims for cash
payment, the attorneys' fees and expenses, the enhancement
payments, the PAGA payment, and administrative costs. Under the
proposed settlement, the Cash Payments were calculated based on the
number of months in which a class member had worked for the
nightclubs during the class period, and ranged from $350 to $800,
although the amount could be increased or reduced on a pro rata
basis based on the number of claims submitted. To receive a Cash
Payment, the class members had to submit an FLSA claim form by the
deadline.
Second, the proposed settlement also provided for up to $1 million
in "dance fee payments." A "dance fee" is the published amount
that a customer at the defendant nightclubs must pay to a dancer
for each dance that she performs. As part of the settlement, a
class member who continues to work at one of the Defendants' clubs
could claim as much as $8,000 in "dance fee payments" in lieu of a
cash settlement share. Such "dance fee payments" would allow a
class member to, on specified nights, keep the "dance fees" that
she would normally remit to the clubs. Specifically, a dancer
could receive up to $5,000 in "dance fee payments" to be used at a
"Primary Nightclub" she designates on her claim form, and up to
$3,000 to be used at her "Secondary Nightclub." The settlement
required a class member to schedule, at least three business days
in advance, a Date of Performance at her Primary or Secondary
Nightclub during the two-year Dance Fee Redemption Period. On that
Date of Performance, she would then be permitted to retain 100% of
the dance fees she earned, capped at her total dance fee payment
allocation for that nightclub.
If the total amount of Dance Fee Payments claimed was less than
$100,000 for any of the Defendant nightclubs, that nightclub would
create a "Residual Dance Fee Payment Pool" for the residual
amounts. Class members who did not submit an FLSA claim form during
the original claims period could claim dance fee payments from the
Residual Pool by submitting a Residual Dance Fee Claim Form, which
would be available from management at the clubs and would contain
an acknowledgment that the claimant did not submit an FLSA claim.
The dance fee payment vouchers were set to expire in two years, at
which time the "value" of any unredeemed claims (i.e., of dance fee
payments that the class members had claimed, but had not yet cashed
in by working on a scheduled Date of Performance) would revert to
the Defendant nightclubs.
Third, the settlement also included an injunction memorializing the
clubs' offer of employee status to prospective dancers, under which
any dancer interested in working at the clubs would be given the
"option" of working as an employee or independent contractor. The
employee option would provide dancers with an hourly rate of $15,
plus a 20% commission for total sales of private dances over $150
on any given night. Other changes made to the nightclubs' business
practices under the settlement involved reviewing employment
choices (independent contractor versus employee status) with
dancers, the context in which those choices are permitted to be
made (not while intoxicated or nude), provisions allowing dancers
to change their status to an employee, control over clothing
choices for independent contractors, a prohibition against
tip-sharing for independent contractors, training videos, and
guaranteed average earnings for independent contractors.
The settlement would release all state law wage claims of
approximately 4,700 members of the class spanning nearly seven
years, from August 8, 2010, to April 14, 2017 (the date of
preliminary approval). If a class member did not exclude herself
from the settlement, she released all wage claims except claims
under the FLSA. If a class member submitted a claim form, she
released all claims, including her FLSA claims.
Despite objections, the district court preliminarily approved the
settlement and the class notice plan on April 14, 2017. As a
result of the low claims rate, the Defendants were not required to
fund the Second Tier Cash Pool of $1 million (i.e., that money
reverted to defendants). In addition, although the parties
initially expected that the class members would receive
approximately $350-$800 each if they submitted claims for cash
payments, the individual shares ultimately ranged from $650-$1500
as a result of the low claims rate. At the time of final approval,
75 class members had claimed a face value of $370,000 of the Dance
Fee Payment Pool. Class members could continue to claim these dance
fee payment vouchers for two years after final approval; however,
the vouchers would be distributed on a first come, first served
basis.
Despite vigorous objections, the district court granted final
approval, deemed the notice adequate, and awarded the requested
attorneys' fees and service awards. Overall, the settlement
provided $2 million in cash, of which $950,000 -- more than the
class would receive in total cash distribution -- was allocated to
attorneys' fees. Specifically, beside the $950,000 in attorneys'
fees, $864,115 went to payments to the class members, $4,884.21 to
expenses, $71,000 to incentive payments, $35,000 to the costs of
settlement administration, and $75,000 to the State of California
(for the PAGA allocation).
The Objectors appealed, challenging both the adequacy of the notice
to the class members and the district court's approval of the
settlement. The Objectors-Appellants challenge that settlement
approval under Federal Rule of Civil Procedure 23. They contend
that the settlement was inadequate because it recovered only a
fraction of the class claims' value, accorded too much weight to
worthless "coupons" and injunctive relief, and that the district
court disregarded indicia of collusion that warranted additional
scrutiny. They also challenge the adequacy of the notice process
because it involved only a single notice sent by U.S. mail and
hanging posters in the defendant nightclubs, and lacked any
electronic outreach.
The Ninth Circuit holds that something more was required here to
meet the standard of the "best notice practicable" and to ensure
that the valuable claims of the absent class members were not wiped
out without affording them an opportunity to opt out, object, or
claim a cash payment. Because the notice plan utilized in this
case did not adequately heed the constitutional due process
guarantees embodied by Rule 23's notice requirements, he reverses
the district court's approval of the notice process.
Next, to meet its procedural burden and to ensure that the
settlement satisfied the heightened standard of fairness, the
district court was required to scrutinize the clear sailing
provision and the possibly pernicious reasons for its inclusion in
the settlement. And particularly in light of the specter of
implicit collusion raised by that provision, the district court had
an obligation to question the disproportionate cash distribution to
attorneys' fees, substantively address concerns that the settlement
value was inflated, and clearly explain why the total benefits to
the class justified the fees awarded.
Not only do the $20,000 General Release Incentive Payments to Jane
Roes 1 and 2 appear to be contrary to the caselaw on incentive
payments, but they also raise concerns about a potential conflict
of interest between the class representatives and unnamed class
members, the Ninth Circuit finds. That conflict arises because, if
the members of the class are provided with special 'incentives' in
the settlement agreement, they may be more concerned with
maximizing those incentives than with judging the adequacy of the
settlement as it applies to the class members at large. As a
result, the district court should have closely scrutinized these
General Release Enhancement Payments to ensure that they were
justified under the Court's precedent, did not create an
impermissible conflict of interest, and were not the result of
implicit collusion.
Ultimately, because the district court applied the incorrect legal
standard in determining whether to approve the settlement -- it
failed to conduct the required heightened inquiry and instead
suggested that a presumption of fairness applied -- the Judge holds
that the district court abused its discretion in granting approval
of the settlement.
For the foregoing reasons, the Ninth Circuit reversed the district
court's approval of the settlement notice process and the
settlement itself, including the attorneys' fees award, and remand
for further proceedings consistent with his Opinion. The Ninth
Circuit left it to the district court to determine how to proceed,
whether that be negotiating a new settlement, seeking re-approval
of the current settlement with a new notice plan under the
applicable heightened standard, reinstating the prior Ninth Circuit
appeal, or proceeding toward trial.
A full-text copy of the Court's Dec. 11, 2019 Opinion is available
at https://is.gd/kFPN1s from Leagle.com.
Shannon Liss-Riordan -- sliss@llrlaw.com --(argued), Lichten &
Liss-Riordan P.C., Boston, Massachusetts, for
Objectors-Appellants.
F. Paul Bland Jr. (argued) and Karla Gilbride, Public Justice P.C.,
Washington, D.C.; Steven G. Tidrick and Joel B. Young, The Tidrick
Law Firm, Oakland, California; for Plaintiffs-Appellees.
Douglas J. Melton -- dmelton@longlevit.com -- (argued) and Shane M.
Cahill, Long & Levit LLP, San Francisco, California, for
Defendants-Appellees.
Eli Naduris-Weissman -- enaduris-weissman@rsglabor.com -- Rothner
Segall & Greenstone, Pasadena, California; Charles P. Yezbak III,
Yezbak Law Offices PLLC, Nashville, Tennessee; for Amicus Curiae
International Entertainment Adult Union.
SHARINN & LIPSHIE: Bid to Bifurcate Discovery in Nazario Partly OKd
-------------------------------------------------------------------
In the case, GISELA M. NAZARIO, Plaintiff, v. SHARINN & LIPSHIE,
P.C., et al, Defendants, Civil Action No. 2:19-cv-04604-SDW-SCM (D.
N.J.), Magistrate Judge Steven C. Mannion of the U.S. District
Court for the District of New Jersey granted in part and denied in
part the Unifund CCR, LLC's informal motion to bifurcate
class-discovery filed via the parties' joint discovery plan and
joint dispute letter.
The Complaint was filed on Feb. 4, 2019, alleging individual and
class action claims under the Fair Debt Collection Practices Act
against Defendants Sharinn and Unifund. Ms. Nazario alleges that
(1) Unifund's purchase of the debts of Ms. Nazario and other class
members was void under New Jersey law because they were bought from
an unlicensed broker, and that (2) the particular debt collection
practices used were misleading and violated the Fair Debt Act.
Magistrate Judge Mannion has considered the parties' respective
submissions in determining whether bifurcation is appropriate.
Unifund argues that class and other discovery should be bifurcated
pending a summary judgment decision on whether its actions violated
the Fair Debt Act and the New Jersey Consumer Finance Licensing
Act. Ms. Nazario counters that bifurcation would be inefficient,
unfair, and duplicative.
The Court finds that fairness and efficiency favors allowing fact
discovery as to Ms. Nazario (the putative representative) on all
claims, as well as discovery for Fed.R.Civ.P. 23 class
certification. Even if class certification is not granted, the
fees and costs for engaging in the discovery will not have been
expended needlessly because fact discovery specific to Ms. Nazario
will still be needed for her to pursue the case in her individual
capacity. But fairness and efficiency also favors deferring class
merits discovery until a decision on certification has been made.
If the class certification is not granted, the fees and costs for
engaging in that discovery would have been expended needlessly.
For these reasons, the Court finds that judicial economy favors
bifurcating discovery. Unifund's motion will be granted in part
and denied in part. The class merits discovery is deferred until a
decision on certification. The Court notes that it will only allow
one motion for summary judgement. When Ms. Nazario moves for class
certification, Unifund may either seek leave to use its one motion
then, or may save it until all discovery is complete.
In light of the foregoing, the Court granted in part and denied in
part Unifund's informal motion to bifurcate class-discovery. The
fact discovery as to the putative class representative(s) and
Fed.R.Civ.P. 23 class certification is to continue in accordance
with the scheduling order. The class merits discovery is deferred
until a decision on certification.
A full-text copy of the District Court's Jan. 14, 2020 Opinion is
available at https://is.gd/MDaTF4 from Leagle.com.
GISELA M. NAZARIO, on behalf of herself and those similarly
situated, Plaintiff, represented by CATHERINE K. RHY, KIM LAW FIRM
LLC & YONGMOON KIM, Kim Law Firm LLC.
SHARINN & LIPSHIE, P.C., Defendant, represented by SCOTT C. SHARINN
-- ssharinn@stuartattorneys.com -- THE JD STUART LAW GROUP.
UNIFUND CCR, LLC, Defendant, represented by MONICA M. LITTMAN --
mlittman@kdvlaw.com -- Kaufman Dolowich & Voluck, LLP & RICHARD J.
PERR -- rperr@kdvlaw.com -- Kaufman Dolowich Voluck.
SIXT RENT: Bid to Dismiss/Compel Arbitration in Calderon Denied
---------------------------------------------------------------
In the case, PHILIPPE CALDERON and ANCIZAR MARIN, on behalf of
themselves and all others similarly situated, Plaintiffs, v. SIXT
RENT A CAR, LLC, and SIXT FRANCHISE USA, LLC, Defendants, Case No.
19-cv-62408-SINGHAL (S.D. Fla.), Judge Raag Singhal of the U.S.
District Court for the Southern District of Florida denied (i) the
Defendants' Motion to Dismiss Plaintiff Calderon's Claims and for
Oral Argument, and (2) the Defendants' Motion to Compel Arbitration
of Plaintiff Marin's Claims, or, Alternatively, For Limited
Discovery Concerning Arbitrability and for Oral Argument.
The Defendants together form a luxury car-rental company. The
Plaintiffs form a putative class and file the action against Sixt
for allegedly imposing unauthorized, fraudulent charges in
violation of Florida's Deceptive and Unfair Trade Practices Act
("FDUTPA"), and the Florida Consumer Collection Practices Act
("FCCPA"). According to the Plaintiffs, Sixt has organized a
company-wide scheme to systematically defraud consumers by marking
up diminution in value, loss of use charges, engineer fees, and
administrative fees/costs, in excess of the actual cost to serve as
a profit generator" and charging unauthorized fees like repair
costs for alleged property damages to vehicles, recovery/storage
fees, administrative fees, loss of use costs, engineers fees,
diminution of value charges, appraisal fees, and dunning charges.
Two named Plaintiffs seek to represent the putative class: Calderon
and Marin. Though separated by roughly three years, their stories
are similar; each reserved and rented a luxury car from Sixt and
each incurred these unauthorized, fraudulent fees. Their stories,
however, differ in one significant way: Calderon made his
reservation directly through Sixt's website, while Marin made his
through Orbitz.com, a third party with whom Sixt contracts and
through which Sixt's inventory can be reserved and rented.
Based on this, the Plaintiffs have subdivided their class into
various groups. As to the two motions at issue, the two relevant
subclasses are those having made reservations directly through
Sixt's website, and those having made reservations through
third-party Orbitz. This Order will refer to the former simply as
"Calderon" and the latter simply as "Marin."
Again, despite the different manner in which they made their
reservations, their stories are otherwise largely identical . This
is particularly true for their post-reservation allegations -- that
is, when they visited Sixt's kiosks to pick up their rental cars
and sign the operative agreements.
Before the Court are two motions: (1) the Motion to Dismiss and (2)
the Arbitration Motion.
As for the Motion to Dismiss, Judge Singhal finds that whether the
Face Page "sufficiently described" the Rental Jacket and,
therefore, whether Calderon was deemed to have read and accepted
the terms of the entire "Rental Agreement" is something properly
left to the province of the factfinder. Based on the four corners
of the Complaint, a reasonable trier of fact could find that
Calderon was not provided with a "sufficient description" of the
Rental Jacket prior to his signing the Face Page. Accordingly, the
Motion to Dismiss as to Count II is denied.
Judge Singhal also finds that Calderon's FDUTPA claim is not based
on the attempted incorporation of the Rental Jacket into the Face
Page. Rather, Calderon's claim alleges that Sixt attempted to
merge the two contracts in order to perpetuate their "systematic
scheme" of charging customers fraudulent fees to bring in
additional revenue. Further, according to the Complaint, Sixt
repeatedly and uniformly marks up loss of use and diminished value
charges above the fair market value. But for the incorporated
terms of the "Rental Jacket," Sixt would not be contractually able
to do so. At the very least, dismissal based on these allegations
would be improper because whether specific conduct constitutes an
unfair or deceptive trade practice is a question of fact for the
jury to determine. Like Count II, the Motion to Dismiss as to
Count I is denied.
In the Arbitration Motion, Sixt argues Marin agreed to arbitrate
all his claims when he accepted the terms and conditions in the
Terms of Use on Orbitz's website. In the alternative, Sixt argues
Marin should be required to arbitrate his claims under the doctrine
of equitable estoppel.
Marin responds the arbitration clause does not apply here for two
reasons: First, Sixt is not a party to the Terms of Use and,
therefore, cannot enforce the arbitration clause; and second,
because the arbitration clause covers disputes only involving
services provided by Orbitz -- not Sixt -- his claims are not
within the scope of the arbitration clause.
Judge Singhal agrees with Marin and finds the arbitration clause
does not apply here for two independent reasons. First, Sixt is
not a party to the Terms of Use, nor is it a third-party
beneficiary entitled to enforce it. Second, even if it were a
party to the Terms of Use, Marin's claims are outside the scope of
the arbitration clause. Consequently, the Arbitration Motion is
denied.
For the foregoing reasons, Judge Singhal denied (i) the Defendants'
Motion to Dismis, and (ii) the Defendants' Arbitration Motion.
A full-text copy of the Court's Feb. 12, 2020 Memorandum Decision &
Order is available at https://is.gd/5uXdSz from Leagle.com.
Philippe Calderon, on behalf of themselves and all others similarly
situated & Ancizar Marin, on behalf of themselves and all others
similarly situated, Plaintiffs, represented by Janet Robards
Varnell -- jvarnell@varnellandwarwick.com -- Varnell and Warwick,
P.A., Steven G. Calamusa -- SCalamusa@ForTheInjured.com -- Gordon
and Doner PA & Brian William Warwick --
bwarwick@varnellandwarwick.com -- Varnell & Warwick, P.A.
SIXT RENT A CAR, LLC & Sixt Franchise USA, LLC, Defendants,
represented by Irene Oria -- irene.oria@fisherbroyles.com --
FISHERBROYLES, LLP & Patrick M. Emery --
patrick.emery@fisherbroyles.com -- FisherBroyles, LLP, pro hac
vice.
SOUTH CAROLINA: Grant of Bid to Strike in Aiken Suit Reversed
-------------------------------------------------------------
In the case, Jimmie Aiken, Leila Brown, Vernonda Cohen, Carla
David, Anthony Sabb, James Ginn, and Shirley Rice, as named
Plaintiffs representing a class of South Carolina citizens,
Respondents, v. South Carolina Department of Revenue, Appellant,
Opinion No. 27944 (S.C.), Judge George C. James of the Supreme
Court of South Carolina reversed the circuit court's order granting
the Respondents' motion to strike one defense from the Department's
answer to the Respondents' second amended complaint.
The Respondents, individually and as members of a putative class,
brought the declaratory judgment action against the Department of
Revenue seeking refunds of amounts garnished from their wages by
the Department to satisfy delinquent debts they allegedly owe to
other governmental entities.
Each named Respondent allegedly owes or owed money to either
Allendale County Hospital or The Regional Medical Center in
Orangeburg. Both hospitals are governmental entities. The
hospitals contracted with the Department to collect the alleged
debts pursuant to section 12-4-580 of the South Carolina Code
(2014). The Respondents contend the Department's use of section
12-4-580 (the GEAR program) and section 12-54-130 of the South
Carolina Code (2014) (the wage garnishment statute) to collect
these debts is unlawful for various reasons.
The Respondents seek to represent a class of all persons similarly
situated to them, and also seek to include in the class those
persons whose wages were garnished to collect other types of
delinquent debts, including student loan debt, tenant debt, and
child care debt. In its answer, the Department alleged subsection
12-60-80(C) of the RPA prohibits the action from proceeding as a
class action.
The Respondents moved to strike the defense. The Department argued
the delinquent debts it collects are "taxes" under subsection
12-60-30(27) of the RPA (2014); therefore, the Department
contended, the first clause in subsection 12-60-80(C) prohibits
Respondents' putative class action because it is an action seeking
"the refund of taxes." The Department also argued that even if the
delinquent debts are not "taxes," the second (or "catchall") clause
of subsection 12-60-80(C) bars "any other" class action against the
Department.
In granting the Respondents' motion to strike, the circuit court
ruled the first portion of subsection 12-60-80(C) does not apply to
the case because the delinquent debts garnished from the
Respondents' wages are not "taxes" as that term is defined in
subsection 12-60-30(27) of the RPA or as that term is commonly
understood. The circuit court also rejected the Department's
contention that the catchall clause of subsection (C) bars any
other class actions against the Department.
The Department raises two basic arguments in the appeal. First,
the Department argues the debts it has collected from the
Respondents fall within the definition of "taxes" as set forth in
subsection 12-60-30(27) of the RPA. As such, the Department
contends, the Respondents' action is an action for the refund of
"taxes," thereby invoking the prohibition of class actions for the
refund of taxes as set forth in the first clause of subsection
12-60-80(C) of the RPA. Second, the Department contends that even
if the Respondents' action is not an action for the refund of
"taxes," the second, or "catchall," clause of subsection
12-60-80(C) prohibits this and all other class actions against the
Department.
Judge James holds that subsection 12-60-80(C) indicates no intent
to limit or restrict the general words "any other class action" in
the catchall clause of subsection (C) to the specific subject of
"taxes" set forth in the first portion of subsection (C). To
interpret the catchall clause in this fashion would simply amount
to an unnecessary re-recitation of the first portion of subsection
(C); it would be an absurd and forced construction of the catchall
clause of subsection (C).
Next, the circuit court reasoned that had the General Assembly
intended for the catchall clause of subsection 12-60-80(C) to apply
to the instant case (in which the Respondents seek a refund of
amounts collected under the GEAR statute), it would have placed the
catchall clause in the GEAR statute. Judge James holds he need not
consider the timing of the General Assembly's introduction and
enactment of subsection 12-60-80(C), as he concludes that the plain
language of subsection (C), by itself, clearly prohibits the
instant action from proceeding as a class action.
Next, the circuit court concluded subsection 12-60-80(C)'s
prohibition of all class actions against the Department violates
the one-subject rule of Article III, section 17 of the South
Carolina Constitution. It was error, the Judge finds. Article
III, section 17 provides that every Act or resolution having the
force of law will relate to but one subject, and that will be
expressed in the title. Even if he were to agree that the
inclusion of subsection (C) multiplied the number of subjects in
Act No. 69, the one-subject rule does not apply because that act
has been duly codified.
Judge James concluded that the plain language of subsection
12-60-80(C) prohibits the action from proceeding as a class action.
He therefore reversed the circuit court and remanded the case for
further proceedings consistent with his Opinion. He expressed no
opinion on the merits of the case, and he expressed no opinion as
to whether the Revenue Procedures Act applies to other issues in
the case.
A full-text copy of the Court's Feb. 12, 2020 Opinion is available
at https://is.gd/XjjJhq from Leagle.com.
General Counsel Jason P. Luther, Counsel for Litigation Dana R.
Krajack -- dana.krajack@dor.sc.gov -- and Counsel for Litigation
Sean G. Ryan, all of Columbia, for Appellant.
Robert N. Hill, of Lexington, Mark B. Tinsley, of Gooding &
Gooding, PA, of Allendale, Daniel W. Williams, of Bedingfield &
Williams, LLC, of Barnwell and Charles H. Williams --
info@williamsattys.com -- of Williams & Williams, of Orangeburg,
for Respondents.
SPRINT/UNITED MANAGEMENT: Fails to Pay All Wages, Murphy Alleges
----------------------------------------------------------------
Christopher Murphy, an individual, on behalf of himself and all
others similarly situated v. SPRINT/UNITED MANAGEMENT COMPANY, a
Kansas Corporation, Case No. 2:20-cv-00507-TLN-DB (E.D. Cal., March
5, 2020), is brought for wage and labor violations arising out of
the Defendant's failure to pay wages for all time worked and to
provide timely and uninterrupted meal and rest periods.
The Defendant failed to provide timely and uninterrupted meal and
rest periods to its California non–exempt Sales Supervisors in
violation of California Labor Code, and the applicable Industrial
Wage Order; failed to pay its employees one hour of pay at the
regular rate of compensation for each instance that the Defendant
failed to provide statutorily mandated rest periods and timely
off–duty meal periods; failed to pay its employees straight time
wages for off–the–clock work performed; failed to pay them
overtime for work in excess of eight hours a day or 40 hours a
week, failed to furnish timely and accurate wage statements; failed
to pay all wages due upon termination; and, is in violation of
California's Unfair Competition Law, says the complaint.
The Plaintiff was employed by the Defendant as a non-exempt,
hourly-paid Sales Supervisor in Sacramento, California.
The Defendant sells mobile telephone devices, accessories and
services at its retail stores, and operates numerous offices and
facilities throughout California including within San Diego
County.[BN]
The Plaintiff is represented by:
David R. Markham, Esq.
Maggie Realin, Esq.
Lisa Brevard, Esq.
THE MARKHAM LAW FIRM
750 B Street, Suite 1950
San Diego, CA 92101
Phone: 619.399.3995
Fax: 619.615.2067
Email: dmarkham@markham-law.com
mrealin@markham-law.com
lbrevard@markham-law.com
- and -
Walter Haines, Esq.
UNITED EMPLOYEES LAW GROUP
5500 Bolsa Avenue, Suite 201
Huntington Beach, CA 92649
Phone: 888.474.7242
Fax: 562.256.1006
Email: walterhaines@yahoo.com
STEMLINE THERAPEUTICS: Funds Distribution in Securities Suit OK'd
-----------------------------------------------------------------
Judge Paul A. Crotty of the U.S. District Court for the Southern
District of New York granted the Lead Plaintiffs' Unopposed Motion
for Distribution of Class Action Settlement Funds in IN RE STEMLINE
THERAPEUTICS, INC. SECURITIES LITIGATION, Case No.
1-17-CV-00832-PAC (S.D. N.Y.).
The funds that are currently in the Net Settlement Fund (less any
necessary amounts to be withheld for payment of potential tax
liabilities and related fees and expenses) will be distributed on a
pro rata basis to the Authorized Claimants, identified in Exhibits
B-1 and B-2 to the Declaration of Sarah Evans Concerning the
Results of the Claims Administration Process. The funds will be
distributed pursuant to the Stipulation and the Plan of Allocation
of the Net Settlement Fund set forth in the Notice of Pendency and
Proposed Settlement of Class Action.
Any person asserting any rejected or subsequently filed claims are
finally and forever barred from asserting such claims as of Nov.
15, 2019, the date used to finalize the administration by Strategic
Claims Services, the Claims Administrator.
The checks for distribution to Authorized Claimants will bear the
notation "CASH PROMPTLY, VOID AND SUBJECT TO RE-DISTRIBUTION 180
DAYS AFTER ISSUE DATE." The Lead Counsel and Strategic Claims
Services are authorized to locate and/or contact any Authorized
Claimant who has not cashed his, her, or its check within said
time.
Any balance remaining in the Net Settlement Fund six months after
the initial distribution of such funds will be re-distributed,
after payment of any unpaid costs or fees incurred in administering
the Net Settlement Fund for such redistribution, to the Settlement
Class Members who have cashed their checks and who would receive at
least $10 from such re-distribution. If any funds will remain in
the Net Settlement Fund six months after such re-distribution, then
such balance will be contributed to a nonsectarian charity or any
not-for-profit successor of it chosen by the Plaintiffs' Counsel,
with the approval of the Court.
Strategic Claims Services is ordered to discard paper or hard
copies of Proofs of Claims and supporting documents not less than
one year after all distributions of the Net Settlement Fund to the
eligible claimants, and electronic copies of the same not less than
three years after all distributions of the Net Settlement Fund to
the eligible claimants.
A full-text copy of the Court's Jan. 14, 2020 Order is available at
https://is.gd/iNVzNX from Leagle.com.
Adam Ludlow, Daljit Singh & Kenneth Walsh, individually and on
behalf of all others similarly situated, Lead Plaintiffs,
represented by Jacob A. Goldberg -- jgoldberg@rosenlegal.com --
The Rosen Law Firm, P.A., Leah Heifetz --
lheifetz@rosenlegal.com -- Mulholland & Knapp, LLP, Phillip C.
Kim -- pkim@rosenlegal.com -- The Rosen Law Firm P.A., Alexa J.
Mullarky -- amullarky@glancylaw.com -- Glancy Prongay & Murray
LLP, Austin Patrick Van -- avan@pomlaw.com -- Pomerantz LLP,
Jeremy Alan Lieberman -- jalieberman@pomlaw.com -- Pomerantz LLP,
Joseph Alexander Hood, II -- ahood@pomlaw.com -- Pomerantz LLP &
Kara M. Wolke -- kwolke@glancylaw.com -- Glancy Prongay & Murray
LLP.
Kenneth Hoberman, Defendant, represented by Adam Michael Harris -
- Adam.Harris@ropesgray.com -- Ropes & Gray, LLP & Gregg L.
Weiner -- gregg.weiner@ropesgray.com -- Ropes & Gray, LLP.
Ron Bentsur, Eric L Dobmeier, Kenneth Zuerblis & Alan Forman,
Defendants, represented by Amy D. Roy -- amy.roy@ropesgray.com --
Ropes & Gray LLP & Gregg L. Weiner, Ropes & Gray, LLP.
TONY FRUITS: Calderon Sues Over Unpaid Minimum and Overtime Wages
-----------------------------------------------------------------
Luis M. Paulino Calderon, individually and on behalf of all other
persons similarly situated v. TONY FRUITS & GROCERY CORP., FELIPE
GARCIA, and JUNIOR TAVERAS, jointly and severally, Case No.
1:20-cv-01954 (S.D.N.Y., March 5, 2020), alleges that the
Defendants violated the Fair Labor Standards Act and the New York
labor Law and are liable to the Plaintiff for unpaid or underpaid
minimum wages, overtime compensation and spread-of-hours wages.
The Plaintiff worked more than 40 hours each workweek, yet the
Defendants willfully failed to pay the Plaintiff overtime pay of
one and one-half times the regularly rate of pay and failed to pay
spread-of-hours compensation, says the complaint.
The Plaintiff was employed by the Defendant as a cook, maintenance
man, and restocker from 2011 until November 2019.
The Defendants operate a supermarket or grocery store, doing
business as Tony Fruits and Grocery Corp., located in Bronx, New
York.[BN]
The Plaintiff is represented by:
Justin A. Zeller, Esq.
John M. Gurrieri, Esq.
LAW OFFICES OF JUSTIN A. ZELLER, P.C.
277 Broadway, Suite 408
New York, NY 10007-2036
Phone: (212) 229-2249
Facsimile: (212) 229-2246
Email: jazeller@zellerlegal.com
jmgurrieri@zellerlegal.com
UNITED AIRLINES: Court Denies Bid to File Surreply in Vallarta Suit
-------------------------------------------------------------------
In the case, DIANA VALLARTA and LISA SALMONS, on behalf of
themselves and all others similarly situated, Plaintiffs, v. UNITED
AIRLINES, INC., Defendant, Case No. 4:19-CV-05895-HSG (N.D. Cal.),
Judge Haywood S. Gilliam, Jr. of the U.S. District Court for the
Northern District of California, Oakland Division, denied the
Plaintiffs' Administrative Motion for Leave to File Surreply in
Support of Plaintiffs' Opposition to Defendant's Motion to Dismiss
Plaintiffs' Class Action Complaint.
A full-text copy of the Court's Feb. 12, 2020 Order is available at
https://is.gd/tHhsyQ from Leagle.com.
Diana Vallarta & Lisa Salmons, Plaintiffs, represented by Rosemary
M. Rivas -- rrivas@zlk.com -- Levi & Korsinsky LLP & Marc Lawrence
Godino -- mgodino@glancylaw.com -- Glancy Prongay & Murray LLP.
United Airlines, Inc., Defendant, represented by Azar Asas
Alexander -- aalexander@rshc-law.com -- Riley Safer Holmes and
Cancila LLP, Rachel Frances Sifuentes, Riley Safer Holmes and
Cancila LLP & Sondra Ann Hemeryck -- shemeryck@rshc-law.com --
Riley Safer Holmes Cancila LLP.
UNITED STATES: Court Allows Tujibikila to Proceed in Forma Pauperis
-------------------------------------------------------------------
In the case, CEDRIK TUJIBIKILA (A-212106063), Plaintiff, v.
DEPARTMENT OF HOMELAND SECURITY, et al., Defendants, Case No. 19 C
50171 (N.D. Ill.), Judge Sara L. Ellis of the U.S. District Court
for the Northern District of Illinois (i) granted Tujibikila's
application to proceed in forma pauperis, and (ii) Tujibikila's
motion for appointment of counsel.
Pro se Plaintiff Tujibikila, an Immigration and Customs Enforcement
("ICE") detainee currently confined at the Torrance County
Detention Facility in Estancia, New Mexico, brings the civil rights
lawsuit under Bivens v. Six Unknown Named Agents of Federal Bureau
of Narcotics, alleging various claims against federal Defendants
arising out of his alleged sexual assault victimization by guards
at correctional institutions at which he has been confined in
Wisconsin and Illinois.
Tujibikila's complaint states that the case is a class action
brought under (BIVENS Action) for violation of Constitution on
federal defendants. Alleging violations of the 8th & 14th
Amendments of the U.S. Constitution, the Americans with
Disabilities Act & the Rehabilitation Act. The Plaintiffs
challenge the adequacy of the delivery of mental-health services to
them who have mental illnesses in the physical custody and control
of the (DHS, ICE, & McHenry County Corrections Facility).
Tujibikila alleges that Defendant Kevin McAleenan, Secretary of
DHS, and Defendant Richard Wong, Director of ICE Chicago Field
Office, had sufficient knowledge of the sexual assaults and sexual
abuses suffered by Tujibikila in different detention facilities of
the DHS and ICE in Illinois and Wisconsin, but they both
disregarded and turned a blind eye to Tujibikila's concerns. In
addition, Tujibikila asserts that he is challenging delays and
denial of "access to the courts."
Tujibikila alleges that Defendant Keith Taylor ("who is the sexual
assault and abuse sexual coordinator") and Defendant Yesenia Ochoa
("a deportation officer") had a duty to investigate his allegations
of abuse, but both failed to do so.
Tujibikila names Department of Homeland Security Secretary Kevin
McAleenan, ICE, Chicago Field Officer Richard Wong, Deportation
Officer Yesenia Ochoa, Sexual Assault and Sexual Abuse Coordinator
Keith Taylor, Deportation Officer Landmiere, and DHS Agent John Doe
as Defendants.
Tujibikila's application to proceed in forma pauperis, motion for
appointment of counsel, and complaint, which is subject to initial
screening pursuant to 28 U.S.C. Section 1915(e)(2), are before the
District Court.
Judge Ellis finds that Tujibikila's application for leave to
proceed in forma pauperis demonstrates that he has insufficient
assets to pay the filing fee. Review of Tujibikila's jail trust
account statement reveals that his account is in arrears and the
average monthly deposits into his account during the six-month
period preceding commencement of this action has only equaled
approximately $45. Accordingly, the Judge will grant Plaintiff's
application and waived payment of the Court's filing fee.
Judge Ellis next finds that Tujibikila's complaint may reasonably
be read as averring that he is a victim of sexual assault and/or
sexual abuse and as a result suffers from serious mental health
conditions for which he needs medical treatment - but that is about
as far as one can go in drawing reasonable inferences from
Tujibikila's complaint. The problem lies in the fact that
Tujibikila's allegations are just too vague and lacking in factual
detail to allow any reasonable inferences to be drawn as to whether
Tujibikila has made a showing of any actionable violation and/or as
to whether he has named any proper defendant as to the claims he
purports to assert. It is particularly problematic in the case
inasmuch as Tujibikila's claims arise out of alleged sexual
assaults in correctional facilities in two different states; thus,
it is difficult to even ascertain if this action is properly
venued. Indeed, Tujibikila's allegations are precisely the sort of
naked "the-defendant-unlawfully-harmed-me" allegations to which the
Supreme Court alluded in Twombly and Iqbal.
As presently pleaded, Tujibikila's abstract allegation of
inadequate delivery of medical and mental health treatment for
victims of sexual assault and sexual abuse victims in the custody
of DHS and ICE fails to state a claim upon which relief can be
granted. Indeed, there are simply no allegations in Tujibikila's
complaint that give this conclusory and general indictment of
DHS/ICE any substance. Furthermore, while certain of Tujibikila's
allegations concern the failure of certain individuals to
investigate his allegations of sexual-assault/sexual-abuse, there
are no allegations setting out any facts concerning any denial of
medical/mental-health treatment.
Nonetheless, with further investigation and factual development,
the nature of Tujibikila's allegations are such that federal claims
are potentially implicated. Judge Ellis thus finds that the
assistance of counsel is warranted. Accordingly, the Judge
requests that Timothy A. Weaver, of Pretzel & Stouffer, Chtd., One
South Wacker Drive, Suite 2500, Chicago, Illinois, 60606 -
tweaver@pretzel-stouffer.com - represent Tujibikila in accordance
with counsel's trial bar commitment under Local Rule 83.37.
After investigation, if the counsel believes that he is unable to
file an amended complaint consistent with his obligations under
Rule 11 of the Federal Rules of Civil Procedure, he should so
inform the Court. The counsel is encouraged to visit the Court's
Pro Bono web page at http://www.ilnd.uscourts.gov/
Pages.aspx?page=ProBono (case sensitive) for various resources
related to pro bono representation.
Accordinly, Judge Ellis granted the Plaintiff's application for
leave to proceed in forma pauperis and waived payment of the filing
fee. Summons will not issue, however, as the Judge dismissed the
Plaintiff's complaint without prejudice for failure to state a
claim upon which relief can be granted. The Judge granted
Plaintiff's motion for attorney representation.
Judge Ellis denied the Plaintiff's renewed motion for attorney
representation as moot and denied his request for fines and a
temporary restraining order without prejudice.
Judge Ellis also recruited Attorney Timothy A. Weaver, of Pretzel &
Stouffer, Chtd., One South Wacker Drive, Suite 2500, Chicago,
Illinois, 60606, tweaver@pretzel-stouffer.com, to represent the
Plaintiff in accordance with the counsel's trial bar obligations
under the District Court's Local Rules 83.11(h) and 83.37. The
recruited counsel falls within the class of users listed in the
Electronic Public Access fee schedule adopted by the Judicial
Conference of the United States, therefore, the counsel will be
exempt from the payment of fees for access via PACER to the
electronic case files maintained in the Court for the case only.
The recruited counsel is directed to open a separate PACER account
to only be used for the above-captioned case, and fees are exempt
for the case only; he will not be exempt from the payment of fees
incurred in connection with other uses of the PACER system in the
Court. The exemption is valid immediately and for the duration of
counsel's participation in the matter. The exemption may be
revoked at the discretion of the Court at any time. The counsel
will contact the PACER Service Center at 1-800-676 6856 or online
to create the new PACER account and to make any necessary
arrangements for the waiver.
The case is set for status on March 27, 2020 at 9:30 a.m. The
counsel should be prepared to update the Court regarding efforts to
investigate the Plaintiff's allegations and if he intends to file
an amended complaint. If the counsel believes that he cannot
proceed consistent with Rule 11, he should so inform the Court.
The counsel is encouraged to visit the Pro Bono Resources for Trial
Bar Attorneys now available on the Court's homepage for various
resources related to pro bono representation. The Clerk is directed
to send a copy of this order to: (1) the PACER Service Center at
pacer@psc.uscourts.gov; (2) the Systems Department of the Northern
District of Illinois; (3) the Plaintiff at the facility having
custody of him; (4) the trust fund officer at the facility having
custody of the Plaintiff; and (5) to the recruited counsel.
A full-text copy of the District Court's Jan. 14, 2020 Order &
Reasons is available at https://is.gd/WMBVtf from Leagle.com.
Cedrik Tujibikila, Plaintiff, represented by Timothy A. Weaver --
tweaver@pretzel-stouffer.com -- Pretzel & Stouffer, Chtd..
VACO TECHNOLOGY: Court Denies Bid to Dismiss Bush Labor Suit
------------------------------------------------------------
In the case, CHRISTIANA BUSH, Plaintiff, v. VACO TECHNOLOGY
SERVICES, LLC, et al., Defendants, Case No. 17-cv-05605-BLF (N.D.
Cal.), Judge Beth Labson Freeman of the U.S. District Court for the
Noerthern District of California, San Jose Division, denied the
Defendants' Motion to Dismiss or, in the Alternative, to Strike
Class Claims from the Fourth Amended Complaint.
Bush brings the putative class action against Vaco Technology
Services, LLC ("VTS") and Google, LLC, alleging various wage and
hour violations by both the Defendants. Now before the Court is
the Defendants' Motion to Dismiss.
As in prior motions to dismiss, the issue in the instant motion is
the scope of the Plaintiff's putative classes. The Court has
thrice dismissed the Plaintiff's class claims on the ground that
her factual allegations were insufficient to support claims brought
on behalf of broadly-defined classes.
For instance, in the Third Amended Complaint ("TAC"), the Plaintiff
sought to represent a class of all persons directly employed by
Vaco who worked in hourly or non-exempt positions in California
("Vaco Class"). As the Court repeatedly explained, the Plaintiff's
allegations of misconduct by the Defendants were specific to her
experiences and job duties at Google. The Plaintiff's allegations
that the Defendants had the same policies and practices as to the
class members working at other companies and performing other job
duties were conclusory and therefore not plausible.
The Court gave the Plaintiff multiple opportunities to allege
additional facts supporting her proposed classes. Finally, in its
order regarding the Third AC, the Court found that the Plaintiff's
proposed classes remained too broad, and that further leave to
amend the factual allegations would be futile. The Court held that
the Plaintiff's claims could proceed only on behalf of a narrowed
class.
The Plaintiff has now filed the Fourth Amended Complaint ("4AC").
The 4AC alleges three nationwide classes: (1) the "Google
Expedition Class," (2) the "Order Audit Operation Specialist
Class," and (3) the "Content Bug Technician Class." The 4AC also
alleges four California Sub-Classes: one corresponding to each of
the nationwide classes -- the "Google Expedition California
Sub-Class," the "Order Audit Operation Specialist California
Sub-Class, and the "Content Bug Technician California Sub-Class" --
and a UCL class combining the other three. In her briefing on the
instant motion, the Plaintiff withdraws the national classes plead
in the 4th AC as to the Order Audit Operations Specialist and
Content Bug Technician claims. Accordingly, the only nationwide
class remaining in the 4AC is the Google Expedition Class, which
the Defendants do not challenge.
Now before the Court is the Defendants' Motion to Dismiss or, in
the Alternative, to Strike Class Claims from the Fourth Amended
Complaint.
The Defendants' motion concerns only the Order Audit Operation
Specialist and Content Bug Technician California Sub-Classes. The
4AC defines these classes as follows:
a. Order Audit Operation Specialist California Sub-Class: All
persons employed directly by Google and/or through any staffing
agencies (including Vaco) who input data into Google system
concerning which movies and television shows to go live in
California during the Relevant Time Period.
b. Content Bug Technician California Sub-Class: All persons
employed directly by Google and/or through any staffing agencies
(including Vaco) who conducted quality assurance for YouTube Live
in California during the Relevant Time Period.
The Defendants argue these sub-classes are overbroad for two
reasons. First, the Defendants object to the inclusion of persons
employed through any staffing agencies. According to the
Defendants, the Court has already ruled that the Plaintiff cannot
represent individuals hired through staffing agencies other than
VTS. Second, the Defendants contend that the Plaintiff's class
definitions are "amorphous" and based on "imprecise job duties,"
and are therefore in contravention of the Court's prior order
requiring the Plaintiff to narrow these classes to encompass only
individuals employed as Order Audit Operation Specialists and
Content Bug Technicians, respectively.
As the first argument, the Defendants believe the Court has already
rejected the Plaintiff's attempts to represent individuals hired
through staffing agencies other than VTS. Google, however, may be
liable for violations committed against individuals hired through
other staffing agencies. As the 4AC makes clear, the Plaintiff is
pursuing a theory of joint employer liability against Google.
Judge Freeman holds that the joint employer doctrine recognizes
that a worker may be employed by more than one entity at the same
time. If that is the case, each of the employers is subject to
obligations under the Fair Labor Standards Act and California's
labor laws. Hence, Google's liability is not necessarily limited
to individuals were hired through VTS; it may extend to individuals
hired through another staffing agency or directly by Google. The
Judge therefore denies the motion to dismiss or strike the
sub-classes to the extent they represent persons employed through
any staffing agencies.
She likewise rejects the Defendants' second objection. The Judge
is satisfied that the Plaintiff has complied with the Court's
instruction to narrow the classes to the three roles the Plaintiff
held at Google. Although the Plaintiff has used job duties rather
than job titles to define the sub-classes, the Judge believes the
sub-classes are sufficiently definite to advance past the pleading
stage. Courts have repeatedly allowed classes to be defined by job
duties. Through discovery, the Plaintiff should further refine the
precise job duties and titles of putative class members. Any
further objections regarding class definition may then be brought
at the class certification stage.
For the foregoing reasons, Judge Freeman denied the Defendants'
Motion to Dismiss or, in the Alternative, to Strike Class Claims
from the Fourth Amended Complaint.
A full-text copy of the Court's Feb. 12, 2020 Order is available at
https://is.gd/5H4rBP from Leagle.com.
Christiana Bush, Plaintiff, represented by Chaim Shaun Setareh --
shaun@setarehlaw.com -- Setareh Law Group & Thomas Alistair Segal
-- thomas@setarehlaw.com -- Setareh Law Group.
Vaco Technology Services, LLC, a Tennessee limited liability
company, Defendant, represented by Alexandria Marie Witte --
awitte@fordharrison.com -- Ford & Harrison LLP & Daniel B. Chammas
-- dchammas@fordharrison.com -- Ford & Harrison LLP.
Google, LLC, a Delaware corporation, Defendant, represented by
Zachary P. Hutton -- zachhutton@paulhastings.com -- Paul Hastings
LLP, Paul Andrew Holton -- paulholton@paulhastings.com -- Paul
Hastings LLP & William Tucker Page --
rickkirkbride@paulhastings.com -- Paul Hastings LLP.
WAWA INC: Greater Cincinnati Credit Sues Over POS Data Breach
-------------------------------------------------------------
Greater Cincinnati Credit Union, on behalf of itself and others
similarly situated, Plaintiff, v. WaWa, Inc. and Wild Goose Holding
Co., Inc., Defendants, Case No. 20-cv-00722, (E.D. Pa., February 7,
2020), seeks injunctive relief, statutory damages, attorneys' fees,
costs together with other relief resulting from negligence and for
violation of the Federal Trade Commission Act of 1914.
WaWa is engaged in the business of developing and operating a
system of convenience stores. Wild Goose Holding Co., Inc. is
WaWa's parent company. WaWa currently operates more than 850 retail
stores throughout Pennsylvania, New Jersey, Delaware, Maryland,
Virginia, Florida, and Washington, D.C. Around March 2019, computer
hackers accessed WaWa's point-of-sale systems and installed malware
that infected in-store payment terminal and fuel dispensers in the
United States. Hackers stole the payment card data of its
customers.
Greater Cincinnati Credit Union is a federally-chartered credit
union located in Cincinnati, Ohio. After the breach, it spent
efforts to investigate fraudulent charges and costs due to lost
interest and transaction fees due to reduced card usage. [BN]
Plaintiff is represented by:
Gary F. Lynch, Esq.
Jamisen A. Etzel, Esq.
Kevin W. Tucker, Esq.
CARLSON LYNCH SWEET KILPELA & CARPENTER, LLP
1133 Penn Avenue, 5th Floor
Pittsburgh, PA 15222
Tel: (412) 322-9243
Email: glynch@carlsonlynch.com
ktucker@carlsonlynch.com
jetzel@carlsonlynch.com
WERNER ENTERPRISES: Partial Summary Judgment Bids in Abarca Denied
------------------------------------------------------------------
Judge Joseph F. Battaillon of the U.S. District Court for the
District of Nebraska denied the Defendant's motions for partial
summary judgment without prejudice to reassertion in the cases
captioned EZEQUIEL OLIVARES ABARCA, individually and on behalf of
all those similarly situated; ALFREDO ALESNAJR., individually and
on behalf of all those similarly situated; DAVID CAGLE,
individually and on behalf of all those similarly situated; STEPHEN
L. DAVIS, individually and on behalf of all those similarly
situated; FRANK EADS, individually and on behalf of all those
similarly situated; and KENNETH J. SURMAN, individually and on
behalf of all those similarly situated; Plaintiffs, v. WERNER
ENTERPRISES, INC., DOES 1-100, inclusive; and DRIVERS MANAGEMENT,
LLC, Defendants. WILLIAM SMITH, on behalf of himself, all others
similarly situated, and on behalf of the general public; Plaintiff,
v. WERNER ENTERPRISES, INC., a corporation; and DOES 1-100,
inclusive; Defendants. BRIAN VESTER, individually and on behalf of
all others similarly situated; and JOEL MORALES, individually and
on behalf of all others similarly situated; Plaintiffs, v. WERNER
ENTERPRISES, INC., and DRIVERS MANAGEMENT, LLC, Defendants, Case
Nos. 8:14CV319 (LEAD), 8:15cv287 (MEMBER), 8:17cv145 (MEMBER) (D.
Neb.).
The cases are consolidated class actions for alleged violations of
Nebraska and California wage and hour laws.
Defendants Werner and Drivers Management, move for summary judgment
on the meal and rest break claims under California law. Werner
relies on a recent Federal Motor Carrier Standards Administration
("FMCSA") ruling that California's meal- and rest-break rules ("MRB
Rules"), Care preempted and unenforceable with respect to drivers
of property-carrying commercial motor vehicles subject to FMCSA's
Hours of Service ("HOS") rules.
The validity and effect of the FMCSA order is presently on appeal
to the Ninth Circuit Court of Appeals in several consolidated
cases. Under 49 U.S.C. Section 31141(f) and 28 U.S.C. Section
2342(3)(A), federal appeals courts have exclusive jurisdiction to
enjoin, set aside, suspend, or determine the validity of FMCSA
preemption determinations.
Those actions have been fully briefed and are being considered for
oral argument in June, July, or August of 2020. The deadline for
filing motions to dismiss and motions for summary judgment in the
case is April 2, 2021. It thus appears that deferring judgment on
this motion will not delay progression of the case.
Because the Ninth Circuit's determination will likely be
dispositive of the issue presented in the Defendant's motion, Judge
Battaillon deferred ruling on the motion at this time.
Accordingly, the Court denied the Defendant's motions for summary
judgment without prejudice to reassertion.
A full-text copy of the Court's Feb. 26, 2020 Memorandum & Order is
available at https://is.gd/kBoSpb from Leagle.com.
Ezequiel Olivares Abarca, individually and on behalf of all those
similarly situated, Alfredo Alesna, Jr., individually and on
behalf of all those similarly situated, David Cagle, individually
and on behalf of all those similarly situated, Stephen L. Davis,
individually and on behalf of all those similarly situated, Frank
Eads, individually and on behalf of all those similarly situated
& Kenneth J. Surman, individually and on behalf of all those
similarly situated, Plaintiffs, represented by David A. Borgen --
dborgen@gbdhlegal.com -- GOLDSTEIN, BORGEN LAW FIRM, pro hac
vice, James M. Sitkin -- jsitkin@sitkinlegal.com -- LAW OFFICES
OF JAMES M. SITKIN, pro hac vice, Justin L. Swidler --
jswidler@swartz-legal.com -- SWARTZ, SWIDLER LAW FIRM, Laura L.
Ho -- lho@gbdhlegal.com -- GOLDSTEIN, BORGEN LAW FIRM, pro hac
vice, Raymond A. Wendell -- rwendell@gbdhlegal.com -- GOLDSTEIN,
BORGEN LAW FIRM, pro hac vice & Richard S. Swartz --
rswartz@swartz-legal.com -- SWARTZ, SWIDLER LAW FIRM.
Werner Enterprises, Inc. & Drivers Management, LLC, Defendants,
represented by Brandon J. Crainer, FRASER, STRYKER LAW FIRM,
Elizabeth A. Culhane, FRASER, STRYKER LAW FIRM, Joseph E. Jones,
FRASER, STRYKER LAW FIRM & Kathryn A. Dittrick, FRASER, STRYKER
LAW FIRM.
William Smith, Interested Party, represented by David A. Borgen,
GOLDSTEIN, BORGEN LAW FIRM, Raymond A. Wendell, GOLDSTEIN, BORGEN
LAW FIRM & William D. Turley -- bturley@turleylawfirm.com --
TURLEY LAW FIRM.
WEST VIRGINIA: Leave to File Third-Party Complaint in Baxley Denied
-------------------------------------------------------------------
Judge Robert C. Chambers of the U.S. District Court, S.D. West
Virginia, Huntington Division, denied Defendants Betsy Jividen and
Shelby Searls' Motion for Leave to File a Third-Party Complaint and
Cross-Claims in the case, JOHN BAXLEY, JR., ERIC L. JONES, SAMUEL
STOUT, AMBER ARNETT, EARL EDMONDSON, JOSHUA HALL, DONNA
WELLS-WRIGHT, ROBERT WATSON, HEATHER REED, and DANNY SPIKER, JR.,
on their own behalf and on behalf of all others similarly situated,
Plaintiffs, v. BETSY JIVIDEN, in her official capacity as
Commissioner of the West Virginia Division of Corrections and
Rehabilitation and THE WEST VIRGINIA DIVISION OF CORRECTIONS AND
REHABILITATION, and SHELBY SEARLS, in his official capacity as the
Superintendent of Western Regional Jail and Correctional Facility,
Defendants, Civil Action No. 3:18-1526, Consolidated with Nos.
3:18-1533, 3:18-1436 (S.D. W.Va.).
The putative class action arises from allegations that the West
Virginia Department of Corrections and Rehabilitation ("WVDCR") has
failed to meet its minimum constitutional requirements of ensuring
the safety and health of inmates in its custody at West Virginia
regional jails. The 10 named Plaintiffs have divided themselves
into two putative classes: Class A, which centers on the
Defendants' alleged failure to provide medical and mental health
treatment to inmates upon admission, and Class B, which centers
generally on the conditions of confinement at the Western Regional
Jail.
It is the subset of allegations in Class A that are of particular
importance to the Defendants' motion. The named Class A Plaintiffs
point to a range of shortcomings on the part of prison officials
and medical staff, ranging from withholding antiretroviral
medications from an HIV positive Plaintiff to mixing different
types of insulin before administering the hybridized drug to a
diabetic Plaintiff. While these allegations point to generally
deficient performance by prison authorities, they also point to
clear failures by medical staff. The distinction forms the basis
for the instant motion, which seeks to implead PrimeCare Medical,
Inc. and Wexford Heath Sources, Inc. Both medical providers
contract with the WVDCR to provide medical and mental health
services to inmates in correctional facilities across West
Virginia, and employ the staff members implicated in the Second
Amended Complaint.
On Dec. 18, 2018, the action commenced as three individual pro se
lawsuits filed by Plaintiffs Baxley, Stout, and Jones. The actions
were eventually consolidated, and the Plaintiffs' present the
counsel assumed representation. On April 25, 2019, the Plaintiffs
filed their First Amended Complaint. The First Amended Complaint
included a bevy of allegations stemming from inmates' inadequate
access to medical care, but the Defendants did not seek leave to
implead PrimeCare or Wexford Health upon reviewing it.
The Court held a scheduling conference with both parties on Oct. 7,
2019, and discovery commenced the next day. Substantial
documentary evidence was exchanged over the course of the following
months, and the Plaintiffs conducted two depositions. The
Plaintiffs timely filed a motion for leave to file a Second Amended
Complaint on Dec. 13, 2019 -- the agreed -- upon deadline to join
new parties. The proposed Second Amended Complaint did not alter
the basic nature of the Plaintiffs' claims or their class
definitions, but joined several new named Plaintiffs. The Court
granted the motion six days later. While the Defendants did not
seek to implead PrimeCare or Wexford Health before the deadline for
joinder had passed, it did so on Jan. 14, 2020 by filing the
instant Motion for Leave to File a Third-Party Complaint and
Cross-Claims.
The Defendant argues that its claims against PrimeCare and Wexford
Health are appropriate under Rules 13 and 14 of the Federal Rules
of Civil Procedure. As Rule 13 governs crossclaims and Rule 14
governs third-party complaints, the Court will consider the
Defendants' contentions separately.
Judge Chambers holds that though the Defendants mention Rule 13 of
the Federal Rules of Civil Procedure on the first page of their
motion, they do not base any portion of their argument on its
provisions. This much is appropriate, as Rule 13 is the incorrect
vehicle for joining PrimeCare and Wexford Health in the action.
Under Rule 13, a pleading may state as a crossclaim any claim by
one party against a coparty if the claim arises out of the same
transaction or occurrence that is the subject matter of the
original action or of a counterclaim.
As the language suggests, only once a crossclaim is raised against
an existing party will a court consider whether new parties can or
must be joined with respect to that new claim. It means that a
counterclaim or crossclaim may not be directed solely against
persons who are not already parties to an original action, but must
involve at least one existing party. Consideration of whether
joinder is appropriate under Rule 13 -- and, in turn, Rules 19 and
20 -- is therefore unwarranted where crossclaims are raised solely
against nonparties. As neither PrimeCare nor Wexford Health are
parties to the action, the Judge will not analyze the Defendants'
motion under Rule 13.
The Judge is unpersuaded that the contractual relationship between
the Defendants and the proposed third parties favors impleading
PrimeCare and Wexford Health. Though they argue that the WVDCR
provides no direct medical treatment whatsoever and relies upon
contractually-retained medical and mental healthcare providers to
provide constitutionally adequate services, they ignore the legal
reality that contracting out prison medical care does not relieve
the State of its constitutional duty to provide adequate medical
treatment to those in its custody.
In any event, determining whether the medical vendors' contractual
obligations indemnify Defendants is a question of contract law that
is wholly independent from the Plaintiff's civil rights claims. It
is precisely the sort of "unrelated issue" courts seek to avoid
injecting into a suit through impleader.
As a final matter, the Judge is also not persuaded that adding
PrimeCare and Wexford Health to the suit would serve the interests
of judicial economy. As the Plaintiffs point out, substantial
discovery has already been completed --including two depositions
and the exchange of thousands of pages of documents. Adding new
parties at this point would inevitably require time for the counsel
to familiarize themselves with the factual and procedural posture
of the case, leading to further delay. Nor would adding a
potential contractual dispute to the putative civil rights class
action do anything to streamline the issues presently before the
Court.
Simply put: the Defendants' inordinate delay in filing their
motion—combined with the absence of any compelling reason for
PrimeCare and Wexford Health to be involved with the case -- weigh
against impleader. The Judge accordingly exercises discretion to
deny leave for the Defendants to file their proposed third-party
complaint.
For the foregoing reasons, Judge Chambers denied the Defendants'
motion, and directed the Clerk to send a copy of the Memorandum
Opinion and Order to the counsel of record and any unrepresented
parties.
A full-text copy of the Court's Feb. 12, 2020 Memorandum Opinion &
Order is available at https://is.gd/L2rXyV from Leagle.com.
John Baxley, Jr., Amber Arnett, Earl Edmondson, Joshua Hall, Donna
Wells-Wright, Robert Watson, Heather Reed & Danny Spiker, Jr., on
their own behalf and on behalf of all others similarly situated,
Plaintiffs, represented by Jennifer S. Wagner --
jennifer@msjlaw.org -- MOUNTAIN STATE JUSTICE, INC. & Lydia C.
Milnes -- lydia@msjlaw.org -- MOUNTAIN STATE JUSTICE, INC.
Eric L. Jones & Samuel Stout, Consol Plaintiffs, represented by
Jennifer S. Wagner, MOUNTAIN STATE JUSTICE, INC. & Lydia C. Milnes,
MOUNTAIN STATE JUSTICE, INC.
Betsy Jividen, in her official capacity as Commissioner of the West
Virginia Division of Corrections and Rehabilitation, Shelbey
Searls, in his official capacity as the Superintendent & Western
Regional Jail and Correctional Facility, Defendants, represented by
Briana J. Marino, FLAHERTY SENSABAUGH & BONASSO.
Betsy Jividen, in her official capacity as Commissioner of the West
Virginia Division of Corrections and Rehabilitation & Shelbey
Searls, in his official capacity as the Superintendent, Third Party
Plaintiffs, represented by Briana J. Marino, FLAHERTY SENSABAUGH &
BONASSO.
WILLIS TOWERS: Bid to Certify Order for Appeal in Proxy Suit Denied
-------------------------------------------------------------------
In the case, IN RE WILLIS TOWERS WATSON PLC PROXY LITIGATION, Civil
Action No. 1:17-cv-1338 (AJT/JFA) (E.D. Va.), Judge Anthony J.
Trenga of the U.S. District Court for the Eastern District of
Virginia, Alexandria Division, denied the TW/Willis Defendants'
Motion to Certify Order for Appeal and For a Continued Stay of
Proceedings.
By Order dated July 11, 2018, the Court dismissed the Amended
Complaint based on the statute of limitations and a failure to
adequately allege that the relied upon misrepresentations and
omissions were material. The Plaintiff appealed from that July 11
Order and on Aug. 30, 2019, the Fourth Circuit reversed and vacated
that Order. In its opinion, the Fourth Circuit specifically
identified the following three issues of first impression in the
circuit to be considered on remand: (1) whether a claim under
Section 14(a) of the Securities Exchange Act of 1934 that sounds in
fraud requires a particularized pleading of scienter; (2) whether a
Section 14(a) claim can sound in negligence instead of fraud; and
(3) whether, if a Section 14(a) claim does sound in negligence, the
complaint must nonetheless includes particularized allegations of
negligence.
On Jan.31, 2020, after the Defendants renewed their motion to
dismiss, the Court held that: (1) a Section 14(a) claim that sounds
in "fraud" does not require a particularized pleading of scienter;
(2) a Section 14(a) claim can sound in "negligence" rather than
fraud; and (3) a Section 14(a) claim does not need to include
particularized allegations of negligence. In light of these
holdings, the Court concluded that the Amended Complaint adequately
alleged claims under Section 14(a) and Section 20(a) of the
Exchange Act.
On Feb. 5, 2020, the Defendants filed the Motion and accompanying
Memorandum of Law in Support. On Feb. 24, 2020, the Defendants,
who waived a hearing on the Motion], filed their reply. By Order
dated Feb. 25, 2020, Judge Trenga denied the Motion.
His Memorandum Opinion sets forth the reasons he denied Defendants'
request in the Motion to certify for interlocutory appeal pursuant
to 28 U.S.C. Section 1252(b) the three questions decided in the
Court's Jan. 31, 2020 Memorandum Opinion and Order.
To be sure, the Judge opines that the questions the Defendants seek
to certify implicate issues of first impression in the circuit, and
in certain instances, conflict with other circuit's opinions. But
an issue's precedential value is not per se sufficient to meet the
controlling issue of law standard.
Likewise, to the extent the issues to be certified pertain to the
substantive elements of the Plaintiff's Section 14(a) claim, those
issues will ultimately be contained in charging instructions or in
Rule 56 or Rule 52 conclusions of law, such as scienter vel non,
which any appealing party could present to the Fourth Circuit once
the Court enters a final judgment. And in that respect, the
posture of the case is no different than any other case that may
present issues of law for review on appeal, which are typically
deemed to be properly reviewable only after a final judgment has
been entered based on a full evidentiary record.
For this reason, an interlocutory appeal based on the disputed
issues of law embedded in the Order cannot justify a departure from
the basic policy of postponing appellate review until after the
entry of a final judgment. At this point, interlocutory, piecemeal
review appears particularly inappropriate in the case, given the
prospect of any number of legal and factual issues that the
litigation may present for review on appeal, including those
pertaining to admissible evidence, damages, the availability of
other relief, and/or the sufficiency of the evidence.
For all these reasons, the Judge denied the Defendants' request for
certification of the issues decided in the Court's Jan. 31, 20120
Order.
The Defendants also request, should the Court certify the Order for
interlocutory appeal, a stay of these proceedings during the
pendency of any appeal. However, because he declines to certify the
Order for immediate interlocutory appeal, the Judge holds there is
no basis upon which to issue a stay of this action. Therefore, he
denied as moot the Defendants' request for a stay.
Accordingly, for the foregoing reasons, Judge Trenga denied the
TW/Willis Defendants' Motion to Certify Order for Appeal and For a
Continued Stay of Proceedings. The Clerk is directed to forward
copies of the Memorandum Opinion to all counsel of record.
A full-text copy of the Court's Feb. 26, 2020 Memorandum Opinion is
available at https://is.gd/8K5ae7 from Leagle.com.
Cambridge Retirement System, on behalf of itself and all others
similarly situated, Plaintiff, represented by Susan Rebbeca
Podolsky -- spodolsky@podolskylaw.com -- The Law Offices of Susan R
Podolsky.
Willis Towers Watson plc, Towers Watson & Co., Willis Group Holding
plc, John J. Haley & Dominic Casserley, Defendants, represented by
Edward Joseph Fuhr -- efuhr@HuntonAK.com -- Hunton Andrews Kurth
LLP, Eric Harrison Feiler -- efeiler@HuntonAK.com -- Hunton Andrews
Kurth LLP & Johnathon Earl Schronce -- jschronce@HuntonAK.com --
Hunton & Williams LLP.
Valueact Capital Management & Jeffrey W. Ubben, Defendants,
represented by Arvind Jairam, Paul Hastings LLP, Edward Joseph
Fuhr, Hunton Andrews Kurth LLP, Eric Harrison Feiler, Hunton
Andrews Kurth LLP, Johnathon Earl Schronce, Hunton & Williams LLP &
Stuart Seets McCommas, Paul Hastings LLP.
Tameside Metropolitan Borough Council as the Administering
Authority of Greater Manchester Pension Fund & Hudson Bay Master
Fund Ltd., Movants, represented by Steven Jeffrey Toll --
stoll@cohenmilstein.com -- Cohen Milstein Sellers & Toll PLLC.
Regents of the University of California, Movant, represented by
Susan Rebbeca Podolsky, The Law Offices of Susan R Podolsky.
Asbestos Litigation
ASBESTOS UPDATE: 2 ERISA Actions vs. J&J over Talc Matters Pending
------------------------------------------------------------------
Johnson & Johnson is awaiting the Court's decision on the
defendants' motion to dismiss two ERISA class action lawsuits
related to asbestos contamination in body powders, according to the
Company's Form 10-K filing with the U.S. Securities and Exchange
Commission for the fiscal year ended December 29, 2019.
The Company states, "In January 2019, two ERISA class action
lawsuits were filed by participants in the Johnson & Johnson
Savings Plan against Johnson & Johnson, its Pension and Benefits
Committee, and certain named officers in the United States District
Court for the District of New Jersey, alleging that the defendants
breached their fiduciary duties by offering Johnson & Johnson stock
as a Johnson & Johnson Savings Plan investment option when it was
imprudent to do so because of failures to disclose alleged asbestos
contamination in body powders containing talc, primarily
JOHNSON'S(R) Baby Powder. Plaintiffs are seeking damages and
injunctive relief. Defendants have filed a motion to dismiss."
A full-text copy of the Form 10-K is available at
https://is.gd/l2gGon
ASBESTOS UPDATE: 3M Accrues $608MM for Respirator Suits at Dec. 31
------------------------------------------------------------------
3M Company had an accrual of US$608 million as of December 31,
2019, for liabilities associated with respirator mask and asbestos
liabilities (excluding those related to Aearo Technologies),
according to the Company's Form 10-K filing with the U.S.
Securities and Exchange Commission for the fiscal year ended
December 31, 2019.
3M Company states, "The Company regularly conducts a comprehensive
legal review of its respirator mask/asbestos liabilities. The
Company reviews recent and historical claims data, including
without limitation, (i) the number of pending claims filed against
the Company, (ii) the nature and mix of those claims (i.e., the
proportion of claims asserting usage of the Company's mask or
respirator products and alleging exposure to each of asbestos,
silica, coal or other occupational dusts, and claims pleading use
of asbestos-containing products allegedly manufactured by the
Company), (iii) the costs to defend and resolve pending claims, and
(iv) trends in filing rates and in costs to defend and resolve
claims, (collectively, the "Claims Data"). As part of its
comprehensive legal review, the Company regularly provides the
Claims Data to a third party with expertise in determining the
impact of Claims Data on future filing trends and costs. The third
party assists the Company in estimating the costs to defend and
resolve pending and future claims. The Company uses these
estimates to develop its best estimate of probable liability.
"Developments may occur that could affect the Company's estimate of
its liabilities. These developments include, but are not limited
to, significant changes in (i) the key assumptions underlying the
Company's accrual, including, the number of future claims, the
nature and mix of those claims, the average cost of defending and
resolving claims, and in maintaining trial readiness (ii) trial and
appellate outcomes, (iii) the law and procedure applicable to these
claims, and (iv) the financial viability of other co-defendants and
insurers.
"As a result of the March and April 2019 settlements-in-principle
of the coal mine dust lawsuits, the Company's assessment of other
current and expected coal mine dust lawsuits (including the costs
to resolve all current and expected coal mine dust lawsuits in
Kentucky and West Virginia), its review of its respirator
mask/asbestos liabilities, and the cost of resolving claims of
persons who claim more serious injuries, including mesothelioma,
other malignancies, and black lung disease, the Company increased
its accruals in 2019 for respirator mask/asbestos liabilities by
US$337 million, of which US$313 million pre-tax was accrued in the
first quarter of 2019. In 2019, the Company made payments for
legal defense costs and settlements of US$402 million related to
the respirator mask/asbestos litigation.
"As of December 31, 2019, the Company had an accrual for respirator
mask/asbestos liabilities (excluding Aearo accruals) of US$608
million. This accrual represents the Company's best estimate of
probable loss and reflects an estimation period for future claims
that may be filed against the Company approaching the year 2050.
The Company cannot estimate the amount or upper end of the range of
amounts by which the liability may exceed the accrual the Company
has established because of the (i) inherent difficulty in
projecting the number of claims that have not yet been asserted or
the time period in which future claims may be asserted, (ii) the
complaints nearly always assert claims against multiple defendants
where the damages alleged are typically not attributed to
individual defendants so that a defendant's share of liability may
turn on the law of joint and several liability, which can vary by
state, (iii) the multiple factors that the Company considers in
estimating its liabilities, and (iv) the several possible
developments that may occur that could affect the Company's
estimate of liabilities.
"As of December 31, 2019, the Company's receivable for insurance
recoveries related to the respirator mask/asbestos litigation was
US$4 million. The Company continues to seek coverage under the
policies of certain insolvent and other insurers. Once those
claims for coverage are resolved, the Company will have collected
substantially all of its remaining insurance coverage for
respirator mask/asbestos claims."
A full-text copy of the Form 10-K is available at
https://is.gd/jyq81s
ASBESTOS UPDATE: Advance Auto Still Defends Lawsuits at Dec. 28
---------------------------------------------------------------
Advance Auto Parts, Inc. still faces asbestos-related lawsuits,
according to the Company's Form 10-K filing with the U.S.
Securities and Exchange Commission for the fiscal year ended
December 28, 2019.
The Company states, "Our Western Auto subsidiary, together with
other defendants (including Advance and other of its subsidiaries),
has been named as a defendant in lawsuits alleging injury as a
result of exposure to asbestos-containing products. The plaintiffs
have alleged that certain products contained asbestos and were
manufactured, distributed and/or sold by the various defendants.
Many of the cases pending against us are in the early stages of
litigation. While the damages claimed against the defendants in
some of these proceedings are substantial, we believe many of these
claims are at least partially covered by insurance and historically
asbestos claims against us have been inconsistent in fact patterns
alleged and immaterial. We do not believe the cases currently
pending will have a material adverse effect on our financial
position, results of operations or cash flows."
A full-text copy of the Form 10-K is available at
https://is.gd/BpDcnm
ASBESTOS UPDATE: Aerojet Rocketdyne Defends 61 Cases at Dec. 31
---------------------------------------------------------------
Aerojet Rocketdyne Holdings, Inc. still faces 61 asbestos cases
pending as of December 31, 2019, according to the Company's Form
10-K filing with the U.S. Securities and Exchange Commission for
the fiscal year ended December 31, 2019.
Aerojet Rocketdyne states, "The Company has been, and continues to
be, named as a defendant in lawsuits alleging personal injury or
death and seeking various monetary damages due to exposure to
asbestos in building materials, products, or in manufacturing
operations. The majority of cases are pending in Illinois state
courts. There were 61 asbestos cases pending as of December 31,
2019.
"Given the lack of any significant consistency to claims (i.e., as
to product, operational site, or other relevant assertions) filed
against the Company, the Company is generally unable to make a
reasonable estimate of the future costs of pending claims or
unasserted claims. The aggregate settlement costs and legal and
administrative fees associated with the Company's asbestos
litigation has been immaterial for the last three years. As of
December 31, 2019, the Company has accrued an immaterial amount
related to pending claims."
A full-text copy of the Form 10-K is available at
https://is.gd/2Vr6yS
ASBESTOS UPDATE: Assurant Has $24.3MM Liability Reserves at Dec. 31
-------------------------------------------------------------------
Assurant, Inc. carries US$24.3 million (before reinsurance) case
reserves for liabilities due to exposure to asbestos, environmental
and other general liability claims, according to the Company's Form
10-K filing with the U.S. Securities and Exchange Commission for
the fiscal year ended December 31, 2019.
The Company states, "We have exposure to asbestos, environmental
and other general liability claims arising from our participation
in various reinsurance pools from 1971 through 1985. This exposure
arose from a contract that we discontinued writing many years ago.
We carried case reserves for these liabilities, as recommended by
the various pool managers, and IBNR reserves totaling US$24.3
million (before reinsurance) and US$20.7 million (net of
reinsurance) at December 31, 2019. Estimation of these liabilities
is subject to greater than normal variation and uncertainty due to
the general lack of sufficiently detailed data, reporting delays
and absence of a generally accepted actuarial methodology for
determining the exposures. There are significant unresolved
industry legal issues, including such items as whether coverage
exists and what constitutes an occurrence. In addition, the
determination of ultimate damages and the final allocation of
losses to financially responsible parties are highly uncertain.
Based on information currently available, and after consideration
of the reserves reflected in the Consolidated Financial Statements,
we do not believe or expect that changes in reserve estimates for
these claims are likely to be material."
A full-text copy of the Form 10-K is available at
https://is.gd/4vVG7G
ASBESTOS UPDATE: Corning Inc. Has $135MM PCC Liability at Dec. 31
-----------------------------------------------------------------
Corning Incorporated disclosed in its Form 10-K filing with the
U.S. Securities and Exchange Commission for the fiscal year ended
December 31, 2019, that the total amount of remaining payments due
in years 2020 through 2023 for asbestos claims under the
reorganization plan of Pittsburgh Corning Corporation (PCC) is
US$135 million, of which US$35 million will be paid in the second
quarter of 2020 and is classified as a current liability.
The Company states, "Corning and PPG Industries, Inc. each owned
50% of the capital stock of Pittsburgh Corning Corporation ("PCC").
PCC filed for Chapter 11 reorganization in 2000 and the Modified
Third Amended Plan of Reorganization for PCC (the "Plan") became
effective in April 2016.
"At December 31, 2016, the Company's liability under the Plan was
US$290 million, which is required to be paid through a series of
fixed payments beginning in the second quarter of 2017. Payments
of US$50 million and US$35 million were made in June 2019 and June
2018, respectively.
"The total amount of remaining payments due in years 2020 through
2023 is US$135 million, of which US$35 million will be paid in the
second quarter of 2020 and is classified as a current liability.
The remaining US$100 million is classified as a non-current
liability."
A full-text copy of the Form 10-K is available at
https://is.gd/p3XnRl
ASBESTOS UPDATE: Court Denies Dismissal of Securities Suit vs. J&J
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Johnson & Johnson disclosed in its Form 10-K filing with the U.S.
Securities and Exchange Commission for the fiscal year ended
December 29, 2019, that the U.S. District Court for the District of
New Jersey has denied, in part, the Company's motion to dismiss a
securities class action lawsuit related to the Company's failure to
adequately disclose the alleged asbestos contamination in body
powders containing talc.
The Company states, "In February 2018, a securities class action
lawsuit was filed against Johnson & Johnson and certain named
officers in the United States District Court for the District of
New Jersey, alleging that Johnson & Johnson violated the federal
securities laws by failing to adequately disclose the alleged
asbestos contamination in body powders containing talc, primarily
JOHNSON'S(R) Baby Powder, and that purchasers of Johnson &
Johnson's shares suffered losses as a result. Plaintiffs are
seeking damages.
"In April 2019, the Company moved to dismiss the complaint and
briefing on the motion was complete as of August 2019.
"In December 2019, the Court denied, in part, the motion to
dismiss."
A full-text copy of the Form 10-K is available at
https://is.gd/l2gGon
ASBESTOS UPDATE: Flowserve Still Defends PL Lawsuits at Dec. 31
---------------------------------------------------------------
Flowserve Corporation said in its Form 10-K filing with the U.S.
Securities and Exchange Commission for the fiscal year ended
December 31, 2019, that it is a defendant in a "substantial number
of lawsuits" that seek to recover damages for personal injury
allegedly caused by exposure to asbestos-containing products
manufactured and/or distributed by its heritage companies in the
past.
The Company states, "While the overall number of asbestos-related
claims has generally declined in recent years, there can be no
assurance that this trend will continue, or that the average cost
per claim will not further increase. Asbestos-containing materials
incorporated into any such products were encapsulated and used as
internal components of process equipment, and we do not believe
that any significant emission of asbestos fibers occurred during
the use of this equipment.
"Our practice is to vigorously contest and resolve these claims,
and we have been successful in resolving a majority of claims with
little or no payment. Historically, a high percentage of resolved
claims have been covered by applicable insurance or indemnities
from other companies, and we believe that a substantial majority of
existing claims should continue to be covered by insurance or
indemnities, in whole or in part. Accordingly, we have recorded a
liability for our estimate of the most likely settlement of
asserted claims and a related receivable from insurers or other
companies for our estimated recovery, to the extent we believe that
the amounts of recovery are probable. While unfavorable rulings,
judgments or settlement terms regarding these claims could have a
material adverse impact on our business, financial condition,
results of operations and cash flows, we currently believe the
likelihood is remote.
"Additionally, we have claims pending against certain insurers
that, if resolved more favorably than reflected in the recorded
receivables, would result in discrete gains in the applicable
quarter. We are currently unable to estimate the impact, if any,
of unasserted asbestos-related claims, although we expect that
future claims would also be subject to then-existing indemnities
and insurance coverage."
A full-text copy of the Form 10-K is available at
https://is.gd/czSdgt
ASBESTOS UPDATE: GATX Corp. Units Still Face Claims at Dec. 31
--------------------------------------------------------------
GATX Corporation and its subsidiaries are still facing
asbestos-related cases, according to the Company's Form 10-K filing
with the U.S. Securities and Exchange Commission for the fiscal
year ended December 31, 2019.
The Company states, "Several of our subsidiaries have also been
named as defendants or co-defendants in cases alleging injury
caused by exposure to asbestos. The plaintiffs seek an unspecified
amount of damages based on common law, statutory, or premises
liability or, in the case of claims against ASC, the Jones Act,
which provides limited remedies to certain maritime employees. In
addition, demand has been made against GATX for asbestos-related
claims under limited indemnities given in connection with the sale
of certain of our former subsidiaries."
A full-text copy of the Form 10-K is available at
https://is.gd/ZvvCKv
ASBESTOS UPDATE: Honeywell Had $858MM NARCO Liabilities at Dec. 31
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Honeywell International Inc. recorded US$858 million at December
31, 2019, in asbestos-related liabilities involving predecessor
company North American Refractories Company (NARCO), according to
the Company's Form 10-K filing with the U.S. Securities and
Exchange Commission for the fiscal year ended December 31, 2019.
The Company states, "Honeywell's predecessor, Allied Corporation
owned NARCO from 1979 to 1986. When the NARCO business was sold,
Honeywell's predecessor entered into a cross-indemnity agreement
with NARCO which included an obligation to indemnify the purchaser
for asbestos claims. Such claims arise primarily from alleged
occupational exposure to asbestos-containing refractory brick and
mortar for high-temperature applications. NARCO ceased
manufacturing these products in 1980, and the first asbestos claims
were filed in the tort system against NARCO in 1983. Claims
filings and related costs increased dramatically in the late 1990s
through 2001, which led to NARCO filing for bankruptcy in January
2002. Once NARCO filed for bankruptcy, all then current and future
NARCO asbestos claims were stayed against both NARCO and Honeywell
pending the reorganization of NARCO.
"Following the bankruptcy filing, in December 2002 Honeywell
recorded a total NARCO asbestos liability of US$3.2 billion, which
was comprised of three components: (i) the estimated liability to
settle pre-bankruptcy petition NARCO claims and certain
post-petition settlements (US$2.2 billion, referred to as
"Pre-bankruptcy NARCO Liability"), (ii) the estimated liability
related to then unasserted NARCO claims for the period 2004 through
2018 (US$950 million, referred to as "NARCO Trust Liability"), and
(iii) other NARCO bankruptcy-related obligations totaling US$73
million.
"As of December 31, 2019, the Company's total NARCO asbestos
liability of US$858 million reflects Pre-bankruptcy NARCO liability
of US$144 million and NARCO Trust Liability of US$714 million (the
US$743 million accrual for NARCO Trust Liability was reduced by the
US$29 million payment to the NARCO Trust in the fourth quarter of
2019 for Annual Contribution Claims). Through December 31, 2019,
Pre-bankruptcy NARCO Liability has been reduced by approximately
US$2 billion since first established in 2002, largely related to
settlement payments. The remaining Pre-bankruptcy NARCO liability
principally represents estimated amounts owed pursuant to
settlement agreements reached during the pendency of the NARCO
bankruptcy proceedings that provide for the right to submit claims
to the NARCO Trust subject to qualification under the terms of the
settlement agreements and Trust Distribution Procedures. The other
NARCO bankruptcy obligations were paid in 2013 and no further
liability is recorded.
"Honeywell continues to evaluate the appropriateness of the 2006
NARCO Trust Liability Estimate. Despite becoming effective in
2013, the NARCO Trust has experienced delays in becoming fully
operational. Violations of the Trust Distribution Procedures and
the resulting disputes and challenges, a standstill pending dispute
resolution, and limited claims payments, have all contributed to
the lack of sufficient normalized data based on actual claims
processing experience in the Trust since it became operational. As
a result, we have not been able to further update the NARCO Trust
Liability aside from deducting payments to the NARCO Trust for
Annual Contribution Claims. The 2006 million NARCO Trust Liability
Estimate continues to be appropriate because of the unresolved
pending claims in the Trust, some portion of which will result in
payouts in the future, and because new claims continue to be filed
with the NARCO Trust. When sufficiently reliable claims data
exists, we will update our estimate of the NARCO Trust Liability
and it is possible that a material change may need to be
recognized.
"The Company's insurance receivable of US$281 million as of
December 31, 2019, corresponding to the estimated liability for
asserted and unasserted NARCO asbestos claims, reflects coverage
which reimburses Honeywell for portions of NARCO-related indemnity
and defense costs and is provided by a large number of insurance
policies written by dozens of insurance companies in both the
domestic insurance market and the London excess market. We conduct
analyses to estimate the probable amount of insurance that is
recoverable for asbestos claims. While the substantial majority of
our insurance carriers are solvent, some of our individual carriers
are insolvent, which has been considered in our analysis of
probable recoveries. We made judgments concerning insurance
coverage that we believe are reasonable and consistent with our
historical dealings and our knowledge of any pertinent solvency
issues surrounding insurers."
A full-text copy of the Form 10-K is available at
https://is.gd/aRaWyL
ASBESTOS UPDATE: Ingersoll-Rand Has $547.4MM Liabilities at Dec. 31
-------------------------------------------------------------------
Ingersoll-Rand Public Limited Company has total asbestos-related
liabilities of US$547.4 million as of December 31, 2019, according
to the Company's Form 10-K filing with the U.S. Securities and
Exchange Commission for the fiscal year ended December 31, 2019.
The Company also disclosed that it has total asset for probable
asbestos-related insurance recoveries of US$304.0 million as of
December 31, 2019.
Ingersoll-Rand states, "The Company's asbestos insurance receivable
related to Ingersoll-Rand Company and Trane was US$188.7 million
and US$115.3 million at December 31, 2019, and US$141.7 million and
US$126.5 million at December 31, 2018, respectively. These
receivables attributable to Ingersoll-Rand Company and Trane for
probable insurance recoveries as of December 31, 2019 are entirely
supported by settlement agreements between Ingersoll-Rand Company
and Trane and their respective insurance carriers. Most of these
settlement agreements constitute "coverage-in-place" arrangements,
in which the insurer signatories agree to reimburse Ingersoll-Rand
Company or Trane, as applicable, for specified portions of their
respective costs for asbestos bodily injury claims and
Ingersoll-Rand Company or Trane, as applicable, agrees to certain
claims-handling protocols and grants to the insurer signatories
certain releases and indemnifications.
"The costs associated with the settlement and defense of
asbestos-related claims, insurance settlements on asbestos-related
matters and the revaluation of the Company's liability for
potential future claims and recoveries are included in the income
statement within continuing operations or discontinued operations
depending on the business to which they relate. Income and
expenses associated with Ingersoll-Rand Company's asbestos-related
matters are recorded within discontinued operations as they relate
to previously divested businesses, primarily Ingersoll-Dresser
Pump, which was sold by the Company in 2000. Income and expenses
associated with Trane's asbestos-related matters are recorded
within continuing operations.
"During the year ended December 31, 2019, the Company reached
settlements with several insurance carriers associated with pending
asbestos insurance coverage litigation. All but one of these
settlements relate to Ingersoll-Rand Company and are recorded
within discontinued operations. The settlement that relates to
Trane is recorded within continuing operations. During the year
ended December 31, 2018, the Company's valuation model was updated
to address a change in potential future claims. The adjustment,
which increased the asbestos-related liability for both
Ingersoll-Rand Company and Trane, was partially offset by
asbestos-related receivables from insurance carriers. During the
year ended December 31, 2017, the Company recorded an adjustment to
update its liability for potential future claims. This amount was
partially offset by asbestos-related settlements reached with
various insurance carriers.
"In 2012 and 2013, Ingersoll-Rand Company filed actions in the
Superior Court of New Jersey, Middlesex County, seeking a
declaratory judgment and other relief regarding the Company's
rights to defense and indemnity for asbestos claims. The
defendants were several dozen solvent insurance companies,
including companies that had been paying a portion of
Ingersoll-Rand Company's asbestos claim defense and indemnity
costs. The responding defendants generally challenged the
Company's right to recovery, and raised various coverage defenses.
As of December 31, 2019, Ingersoll-Rand Company has resolved both
actions through settlements with all of the remaining solvent
insurer defendants.
"The amounts recorded by the Company for asbestos-related
liabilities and insurance-related assets are based on currently
available information. The Company's actual liabilities or
insurance recoveries could be significantly higher or lower than
those recorded if assumptions used in the calculations vary
significantly from actual results. Key assumptions underlying the
estimated asbestos-related liabilities include the number of people
occupationally exposed and likely to develop asbestos-related
diseases such as mesothelioma and lung cancer, the number of people
likely to file an asbestos-related personal injury claim against
the Company, the average settlement and resolution of each claim
and the percentage of claims resolved with no payment.
Furthermore, predictions with respect to estimates of the liability
are subject to greater uncertainty as the projection period
lengthens. Other factors that may affect the Company's liability
include uncertainties surrounding the litigation process from
jurisdiction to jurisdiction and from case to case, reforms that
may be made by state and federal courts, and the passage of state
or federal tort reform legislation.
"The aggregate amount of the stated limits in insurance policies
available to the Company for asbestos-related claims acquired, over
many years and from many different carriers, is substantial.
However, limitations in that coverage, primarily due to the
considerations, are expected to result in the projected total
liability to claimants substantially exceeding the probable
insurance recovery."
A full-text copy of the Form 10-K is available at
https://is.gd/c46KGu
ASBESTOS UPDATE: Kanefsky Suit over Asbestos Accounting Continues
-----------------------------------------------------------------
Honeywell International Inc. disclosed in its Form 10-K filing with
the U.S. Securities and Exchange Commission for the fiscal year
ended December 31, 2019, that the lead plaintiff in the Kanefsky
litigation related to accounting for Bendix asbestos claims has
filed an amended complaint.
The Company states, "On September 13, 2018, following completion of
the Securities and Exchange Commission (SEC) Division of
Corporation Finance's review of our prior accounting for
liabilities for unasserted Bendix-related asbestos claims, the SEC
Division of Enforcement advised that it had opened an investigation
related to this matter.
"On August 28, 2019, the SEC informed the Company that it had
concluded its investigation and that it does not intend to
recommend any enforcement action against Honeywell.
"On October 31, 2018, David Kanefsky, a Honeywell shareholder,
filed a putative class action complaint in the U.S. District Court
for the District of New Jersey alleging violations of the
Securities Exchange Act of 1934 and Rule 10b-5 related to the prior
accounting for Bendix asbestos claims.
"On May 15, 2019, Wayne County Employees' Retirement System,
another Honeywell shareholder, filed a putative class action
asserting the same claims relating to substantially the same
alleged conduct in the same jurisdiction.
"On December 16, 2019, the court denied Wayne County Employees'
Retirement System's motion to be appointed as substitute lead
plaintiff in the Kanefsky action.
"On December 30, 2019, the lead plaintiff filed an amended
complaint in the Kanefsky action. We believe the claims related to
the prior accounting for Bendix asbestos claims have no merit."
A full-text copy of the Form 10-K is available at
https://is.gd/aRaWyL
ASBESTOS UPDATE: Lennox Int'l. Paid $3.1MM for Lawsuits in 2019
---------------------------------------------------------------
Lennox International Inc. has recorded US$3.1 million expenses, net
of probable insurance recoveries, for known and future
asbestos-related litigation for the year ended December 31, 2019,
according to the Company's Form 10-K filing with the U.S.
Securities and Exchange Commission for the fiscal year ended
December 31, 2019.
The Company states, "We are involved in a number of claims and
lawsuits incident to the operation of our businesses. Insurance
coverages are maintained and estimated costs are recorded for such
claims and lawsuits, including costs to settle claims and lawsuits,
based on experience involving similar matters and specific facts
known.
"Some of these claims and lawsuits allege personal injury or health
problems resulting from exposure to asbestos that was integrated
into certain of our products. We have never manufactured asbestos
and have not incorporated asbestos-containing components into our
products for several decades. A substantial majority of these
asbestos-related claims have been covered by insurance or other
forms of indemnity or have been dismissed without payment. The
remainder of our closed cases have been resolved for amounts that
are not material, individually or in the aggregate.
"Our defense costs for asbestos-related claims are generally
covered by insurance; however, our insurance coverage for
settlements and judgments for asbestos-related claims vary
depending on several factors, and are subject to policy limits, so
we may have greater financial exposure for future settlements and
judgments.
"For the years ended December 31, 2019 and 2018, we estimated our
probable liability for known cases at US$10.2 million and US$9.7
million, respectively, and these amounts were recorded in Accrued
expenses in the Consolidated Balance Sheets. For the years ended
December 31, 2019 and 2018, we estimated future asbestos-related
litigation cases to be US$22.1 million and US$19.3 million,
respectively, before consideration of probable insurance recoveries
and these amounts were recorded in Other liabilities in the
Consolidated Balance Sheets.
"For the years ended December 31, 2019, 2018 and 2017, we recorded
expense of US$3.1 million, US$4.0 million and US$3.5 million,
respectively, net of probable insurance recoveries, for known and
future asbestos-related litigation and is recorded in Losses
(gains) and other expenses, net in the Consolidated Statements of
Operations."
A full-text copy of the Form 10-K is available at
https://is.gd/J0jl6A
ASBESTOS UPDATE: NewMarket Corp. Has $10.5MM Litigation Reserve
---------------------------------------------------------------
NewMarket Corporation has asbestos litigation reserve of
US$10,534,000 recorded in Other Noncurrent Liabilities as of
December 31, 2019, according to the Company's Form 10-K filing with
the U.S. Securities and Exchange Commission for the fiscal year
ended December 31, 2019.
The Company states, "We are a defendant in personal injury lawsuits
involving exposure to asbestos. These cases involve exposure to
asbestos in premises owned or operated, or formerly owned or
operated, by subsidiaries of NewMarket. We have never
manufactured, sold, or distributed products that contain asbestos.
Nearly all of these cases are pending in Texas, Louisiana, or
Illinois and involve multiple defendants. We maintain an accrual
for these proceedings, as well as a receivable for expected
insurance recoveries.
"The accrual for our premises asbestos liability related to
currently asserted claims is based on the following assumptions and
factors:
* We are often one of many defendants. This factor influences
both the number of claims settled against us and the indemnity cost
associated with such resolutions.
* The estimated percent of claimants in each case that, after
discovery, will actually make a claim against us, out of the total
number of claimants in a case, is based on a level consistent with
past experience and current trends.
* We utilize average comparable plaintiff cost history as the
basis for estimating pending premises asbestos related claims.
These claims are filed by both former contractors and former
employees who worked at past and present company locations. We
also include an estimated inflation factor in the calculation.
* No estimate is made for unasserted claims.
* The estimated recoveries from insurance and Albemarle
Corporation (a former operation of our company) for these cases are
based on, and are consistent with, the 2005 settlement agreements
with Travelers Indemnity Company.
"Based on the assumptions, we have provided an undiscounted
liability related to premises asbestos claims of US$12 million at
December 31, 2019 and US$10 million at December 31, 2018. The
liabilities related to asbestos claims are included in accrued
expenses (current portion) and other noncurrent liabilities on the
Consolidated Balance Sheets. Certain of these costs are
recoverable through the settlement agreement with The Travelers
Indemnity Company, as well as an agreement with Albemarle
Corporation. The receivable for these recoveries related to
premises asbestos liabilities was US$6 million at December 31, 2019
and US$5 million at December 31, 2018. These receivables are
included in trade and other accounts receivable, net on the
Consolidated Balance Sheets for the current portion. The
noncurrent portion is included in deferred charges and other
assets."
A full-text copy of the Form 10-K is available at
https://is.gd/cZz38Q
ASBESTOS UPDATE: Standard Motor Had $49.7MM Accrued Liabilities
---------------------------------------------------------------
Standard Motor Products, Inc. recorded accrued asbestos liabilities
of US$49,696,000 at December 31, 2019, according to the Company's
Form 10-K filing with the U.S. Securities and Exchange Commission
for the fiscal year ended December 31, 2019.
The Company states, "In evaluating our potential asbestos-related
liability, we use an actuarial study that is prepared by a leading
actuarial firm with expertise in assessing asbestos-related
liabilities. We evaluate the estimate of the range of undiscounted
liability to determine which amount to accrue. Based on the
information contained in the actuarial study and all other
available information considered by us, we have concluded that no
amount within the range was more likely than any other and,
therefore, in assessing our asbestos liability we compare the low
end of the range to our recorded liability to determine if an
adjustment is required. Legal costs are expensed as incurred. We
will continue to perform an annual actuarial analysis during the
third quarter of each year for the foreseeable future, and whenever
events or changes in circumstances indicate that additional
provisions may be necessary. Based on the actuarial studies and
all other available information, we will continue to reassess the
recorded liability and, if deemed necessary, record an adjustment
to the reserve, which will be reflected as a loss or gain from
discontinued operations."
A full-text copy of the Form 10-K is available at
https://is.gd/SaYU7Z
ASBESTOS UPDATE: Standard Motor Had 1,550 Fibro Cases at Dec. 31
----------------------------------------------------------------
Approximately 1,550 cases were outstanding at December 31, 2019,
for which Standard Motor Products, Inc. may be responsible for any
related liabilities in connection to its former brake business,
according to the Company's Form 10-K filing with the U.S.
Securities and Exchange Commission for the fiscal year ended
December 31, 2019.
The Company states, "In 1986, we acquired a brake business, which
we subsequently sold in March 1998. When we originally acquired
this brake business, we assumed future liabilities relating to any
alleged exposure to asbestos-containing products manufactured by
the seller of the acquired brake business. In accordance with the
related purchase agreement, we agreed to assume the liabilities for
all new claims filed after September 2001. Our ultimate exposure
will depend upon the number of claims filed against us on or after
September 2001, and the amounts paid for settlements, awards of
asbestos-related damages, and defense of such claims. We do not
have insurance coverage for the indemnity and defense costs
associated with the claims we face.
"At December 31, 2019, approximately 1,550 cases were outstanding
for which we may be responsible for any related liabilities. Since
inception in September 2001 through December 31, 2019, the amounts
paid for settled claims are approximately US$30.9 million. During
2018, we were a defendant in an asbestos liability case in
California, in which we were found liable for US$7.6 million in
compensatory damages. We are pursuing all rights of appeal of this
case. A substantial increase in the number of new claims, or
increased settlement payments, or awards of asbestos-related
damages, as well as additional findings in the California case,
could have a material adverse effect on our business, financial
condition and results of operations."
A full-text copy of the Form 10-K is available at
https://is.gd/SaYU7Z
ASBESTOS UPDATE: Transocean Units Still Face 9 Claims at Dec. 31
----------------------------------------------------------------
Transocean Ltd. said in its Form 10-K filing with the U.S.
Securities and Exchange Commission for the fiscal year ended
December 31, 2019, that nine plaintiffs have claims pending in
Louisiana against the Company's subsidiaries at December 31, 2019.
The Company states, "In 2004, several of our subsidiaries were
named, along with numerous other unaffiliated defendants, in
complaints filed in the Circuit Courts of the State of Mississippi,
and in 2014, a group of similar complaints were filed in Louisiana.
The plaintiffs, former employees of some of the defendants,
generally allege that the defendants used or manufactured asbestos
containing drilling mud additives for use in connection with
drilling operations, claiming negligence, products liability,
strict liability and claims allowed under the Jones Act and general
maritime law. The plaintiffs generally seek awards of unspecified
compensatory and punitive damages, but the court-appointed special
master has ruled that a Jones Act employer defendant, such as us,
cannot be sued for punitive damages.
"At December 31, 2019, nine plaintiffs have claims pending in
Louisiana, in which we have or may have an interest. We intend to
defend these lawsuits vigorously, although we can provide no
assurance as to the outcome. We historically have maintained broad
liability insurance, although we are not certain whether insurance
will cover the liabilities, if any, arising out of these claims.
Based on our evaluation of the exposure to date, we do not expect
the liability, if any, resulting from these claims to have a
material adverse effect on our consolidated statement of financial
position, results of operations or cash flows."
A full-text copy of the Form 10-K is available at
https://is.gd/tIc31S
ASBESTOS UPDATE: Union Carbide Faces 11,117 Claims at Dec. 31
-------------------------------------------------------------
Union Carbide Corporation has 11,117 unresolved asbestos-related
claims at December 31, 2019, according to the Company's Form 10-K
filing with the U.S. Securities and Exchange Commission for the
fiscal year ended December 31, 2019.
The Company states, "The Corporation is and has been involved in a
large number of asbestos-related suits filed primarily in state
courts during the past four decades. These suits principally
allege personal injury resulting from exposure to
asbestos-containing products and frequently seek both actual and
punitive damages. The alleged claims primarily relate to products
that UCC sold in the past, alleged exposure to asbestos-containing
products located on UCC's premises, and UCC's responsibility for
asbestos suits filed against a former UCC subsidiary, Amchem. In
many cases, plaintiffs are unable to demonstrate that they have
suffered any compensable loss as a result of such exposure, or that
injuries incurred in fact resulted from exposure to UCC's
products.
"Plaintiffs' lawyers often sue numerous defendants in individual
lawsuits or on behalf of numerous claimants. As a result, the
damages alleged are not expressly identified as to UCC, Amchem or
any other particular defendant, even when specific damages are
alleged with respect to a specific disease or injury. In fact,
there are no personal injury cases in which only the Corporation
and/or Amchem are the sole named defendants. For these reasons and
based upon the Corporation's litigation and settlement experience,
the Corporation does not consider the damages alleged against it
and Amchem to be a meaningful factor in its determination of any
potential asbestos-related liability."
A full-text copy of the Form 10-K is available at
https://is.gd/3HdjNO
*********
S U B S C R I P T I O N I N F O R M A T I O N
Class Action Reporter is a daily newsletter, co-published by
Bankruptcy Creditors' Service, Inc., Fairless Hills, Pennsylvania,
USA, and Beard Group, Inc., Washington, D.C., USA. Rousel Elaine T.
Fernandez, Joy A. Agravante, Psyche A. Castillon, Julie Anne L.
Toledo, Christopher G. Patalinghug, and Peter A. Chapman, Editors.
Copyright 2020. All rights reserved. ISSN 1525-2272.
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