/raid1/www/Hosts/bankrupt/CAR_Public/200408.mbx
C L A S S A C T I O N R E P O R T E R
Wednesday, April 8, 2020, Vol. 22, No. 71
Headlines
170 JOHN STREET: Perez Seeks Unpaid Overtime Wages Under FLSA
3M COMPANY: Gilligan Asserts Injury From Exposure to Toxic AFFF
3M COMPANY: Godfrey Alleges Injury From Exposure to Toxic AFFF
3M COMPANY: Lamoreaux Asserts Injury From Exposure to Toxic AFFF
3M COMPANY: Litteral Asserts Injury From Exposure to Toxic AFFF
3M COMPANY: Vaughan Alleges Injury From Exposure to Toxic AFFF
ADMIN RECOVERY: Faces Purcell Suit Alleging Violation of FDCPA
AETNA LIFE INSURANCE: Prolow Sues Over Denial of PBR Therapy
AMENTUM GOVERNMENT: Faces Schmidt Class Suit in M.D. Pennsylvania
AMERICAN FEDERATION: Summary Judgment Bid in Whitfield Suit Granted
AUROBINDO PHARMA: Wohlmuth Sues Over Sale of NDMA-Laced Metformin
AUSTYN SPENCER: Settlement in Abel FLSA Suit Gets Final Approval
BC LIGHTING: Faces Alvarez Suit Over Unpaid Minimum and OT Wages
BP EXPLORATION: Court Dismisses Herrera Suit with Prejudice
BROUSSEAU MANAGEMENT: FLSA Class Certified
CAH ACQUISITION 2: Trustee's $75K Cash Sale of Assets to NHI Okayed
CASA SYSTEMS: Bid to Dismiss Hook Class Action Pending
CASA SYSTEMS: Bid to Dismiss Panther Partners Suit Pending
CENTURY FENCE: Three Subclasses in Reilly Labor Suit Certified
CHASE BANK: Court Dismisses Riviello FDCPA Suit with Prejudice
CKF ENTERPRISES: Initial Approval of Deal in Ware FLSA Suit Denied
CREDIT PROTECTION: Summ. Judgment Bid in McRobie FDCPA Suit Denied
CRONOS GROUP: Faces Witte Securities Suit Over Share Price Drop
DEVA CONCEPTS: Orner Consumer Suit Challenges Hair Products' Sale
DONNELLEY FINANCIAL: Toretto Seeks Economic Loss Over Data Breach
DORAL 7 CORP: Shelton Sues Over Unpaid Minimum and Overtime Wages
DTE MIDSTREAM: Page Suit Seeks to Certify Class of Inspectors
ELI LILLY: Rochester Drug Sues Over Analog Insulin's Overcharges
EQUITABLE ACCEPTANCE: Bid to Dismiss RICO Claims in Williams Denied
EQUITABLE HOLDINGS: Brach Family Foundation's Suit Still Ongoing
EQUITABLE HOLDINGS: Continues to Defend O'Donnell Class Action
FIRST VEHICLE: Galvan May Amend Labor Class Complaint
FLUENT INC: Thompson Sues Over Unsolicited Telemarketing Calls
FOREST RECOVERY: Ruffin Sues in M.D. Florida Over FDCPA Violation
GANNETT CO: Class Certification Sought in Aronson Lawsuit
GENENTECH INC: Williamson Remanded to San Mateo County Super. Court
GEORGE'S INC: Eighth Circuit Reverses Dismissal of Cook ADA Suit
GEORGIA: Court Dismisses Adams RICO Suit Without Prejudice
HEALTHCARE REVENUE: Faces Edwards FDCPA Suit in N.D. Illinois
HOME DEPOT: Missouri Eastern Dist. Denies Bid to Remand Waters Suit
HONOR RESOURCES: Penska Seeks Unpaid Overtime Wages Under FLSA
HUNGARY: Court Denies Bid to Dismiss Second Amended Simon FSIA Suit
ILLINOIS: Prelim Injunction Order in Monroe Prisoners Suit Vacated
INDOCHINO APPAREL: Court Denies Bid to Dismiss Freeman Suit
INSULET CORPORATION: Johnson Sues Over FCRA and ICRAA Violations
IQVIA INC: Order Striking Class Definition in Mussat Suit Flipped
J.W. LOGISTICS: Tavarez Sues to Recover Unpaid Overtime Wages
JUST A SLICE: McLeod Suit Seeks Unpaid Wages for Delivery Drivers
JW LOGISTICS: Tavarez Suit Seeks to Recover Unpaid Overtime Wages
KENOSHA COUNTY, WI: Bid to Certify Class in Olrich Suit Denied
KENOSHA COUNTY, WI: Olrich May Amend Complaint v. Food Provider
LIVE NATION: Still Defends Suits Related to Overpriced Tickets
LUCKIN COFFEE: April 13 Lead Plaintiff Bid Deadline in Cohen
MARK ADAMS: Connor Suit Moved From South Carolina to N.D. Ohio
MEDIANT COMMUNICATIONS: Court Grants Bid to Dismiss Toretto Suit
MERCEDES-BENZ USA: New Jersey Dist. Narrows Claims in Ponzio Suit
METALCRAFT OF MAYVILLE: Mazurek Asks Court to Decertify Class
MICROCHIP TECH: Court Narrows Claims in Jackson Securities Suit
MOBILELINK: Martinez Sues to Recover Overtime Wages Under FLSA
MONSTER CONSTRUCTION: Casebolt Files FLSA Suit in S.D. Florida
MONSTER CONSTRUCTION: Fails to Pay Proper Wages, Casebolt Claims
MSRS INC: Court Affirms Class Certification Denial in Puerta Suit
MY MIXTAPEZ: Spencer-Ruper Sues Over Unsolicited Text Messages
NAMASTE TECH: Securities Suit Settlement Gets Final Court Approval
NAVIENT SOLUTIONS: Panzarellas Seek Class Action Certification
NEW YORK, NY: Bid to Bifurcate Discovery in EMS Union Suit Denied
NISSAN NORTH: Pascal Liability Suit Removed to C.D. California
O'REILLY AUTOMOTIVE: Faces Morfin Suit Over Unpaid Overtime Wages
ONEBEACON INSURANCE: Faces MSP Recovery Suit in M.D. Florida
OPHTHOTECH CORP: Court Enters Protective Order in Micholle Suit
PENNSYLVANIA: Prison Society Files Suit in Pennsylvania Sup. Ct.
PEORIA DISPOSAL: Stinson Seeks to Recover Unpaid Overtime Wages
PLANTRONICS INC: Settlement in Shin Fraud Suit Has Final Approval
PROFESSIONAL ACCOUNT: Lange FDCPA Suit Dismissed with Prejudice
PROGREXION: Chauhans Seek to Certify Call Center Agents Class
RESURGENT CAPITAL: Court Dismisses Collazo FDCPA Suit
SAN BERNARDINO, CA: Faces Ribota Labor Suit in C.D. California
SHAC LLC: Faces Ortiz TCPA Suit Over Unsolicited Text Messages
SHERATON OPERATING: $384K Attys' Fees Given in Castillo Labor Suit
TEXAS: Fails to Protect Inmates From COVID-19, Valentine Claims
THUNDERBIRD COLLECTION: Sued by Salazar for Violating FDCPA
UHS OF OKLAHOMA: Faces McKinney Suit in District of Oklahoma
UNIFIED LIFE: Montana District Certifies Class in Butler Suit
US CLAIMS: Pennsylvania Eastern District Junks DeSimone UTPCPL Suit
US WAY EXPRESS: Fails to Pay OT Wages Under FLSA, Moylamov Claims
VISTANA MANAGEMENT: Louissant Sues to Recover Wages Under FLSA
VMWARE INC: Faces Lamartina Suit Over Decline in Share Price
WINCHESTER PLACE: Fails to Pay OT Wages Under FLSA, Summers Says
YOUDERIAN LLC: Approval of Thomas Case Settlement Sought
*********
170 JOHN STREET: Perez Seeks Unpaid Overtime Wages Under FLSA
-------------------------------------------------------------
Jeremias Perez, on behalf of himself and others similarly situated
v. 170 JOHN STREET NYC CORP. d/b/a TRADING POST, and RICHARD
SHERIDAN, Case No. 1:20-cv-02685 (S.D.N.Y., March 31, 2020), is
brought against the Defendants to recover unpaid wages and overtime
pay under the Fair Labor Standards Act and the New York Labor Law.
The Plaintiff seeks to recover unpaid compensation, including those
due to an invalid tip credit and time shaving and spread-of-hours
premium; statutory penalties; liquidated damages and attorneys'
fees and costs.
According to the complaint, The Defendants violated the Plaintiff's
and Tipped Subclass members' rights by failing to pay them proper
wages in the lawful amount for all hours worked. The Defendants
were not entitled to claim any tip credits. The Defendants
willfully violated Plaintiff's and Class members' rights by failing
to pay them overtime compensation at the rate of not less than one
and one-half times the regular rate of pay for each hour worked in
excess of 40 hours each workweek.
The Plaintiff was hired by the Defendants to work as a food runner
for the Defendants' Trading Post.
The Defendants operate or operated a bar restaurant under the trade
name "Trading Post" in New York.[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
Phone: 212-465-1188
Fax: 212-465-1181
3M COMPANY: Gilligan Asserts Injury From Exposure to Toxic AFFF
---------------------------------------------------------------
JOSEPH ALBERT GILLIGAN v. 3M COMPANY (f/k/a Minnesota Mining and
Manufacturing Company); BUCKEYE FIRE EQUIPMENT COMPANY; CHEMGUARD,
INC.; CHEMOURS COMPANY FC, LLC; CHUBB FIRE, LTD.; CORTEVA, INC.; DU
PONT DE NEMOURS INC. (f/k/a DOWDUPONT INC.); DYNAX CORPORATION;
E.I. DU PONT DE NEMOURS AND COMPANY; KIDDE-FENWAL, INC.; KIDDE PLC;
NATIONAL FOAM, INC.; THE CHEMOURS COMPANY; TYCO FIRE PRODUCTS LP,
as successor-in-interest to The Ansul Company; UNITED TECHNOLOGIES
CORPORATION; UTC FIRE & SECURITY AMERICAS CORPORATION, INC. (f/k/a
GE Interlogix, Inc.), Case No. 2:20-cv-01013-RMG (D.S.C., March 11,
2020), seeks damages for personal injury for the Plaintiff and for
those similarly situated resulting from exposure to aqueous
film-forming foams containing the toxic chemicals collectively
known as per and polyfluoroalkyl substances.
AFFF is a specialized substance designed to extinguish
petroleum-based fires. It has been used for decades by military and
civilian firefighters to extinguish fires in training and in
response to Class B fires.
According to the complaint, the Defendants collectively designed,
marketed, developed, manufactured, distributed, released, trained
users, produced instructional materials, promoted, sold, and/or
otherwise released into the stream of commerce AFFF with knowledge
that it contained highly toxic and bio persistent PFASs, which
would expose end users of the product to the risks associated with
PFAS.
PFAS binds to proteins in the blood of humans exposed to the
material and remains and persists over long periods of time. Due to
their unique chemical structure, PFAS accumulates in the blood and
body of exposed individuals. PFAS are highly toxic and carcinogenic
chemicals. PFAS includes perfluorooctanoic acid ("PFOA") and
perfluorooctane sulfonic acid ("PFOS") and related chemicals,
including those that degrade to PFOA and/or PFOS. The Defendants
knew, or should have known, that PFAS remain in the human body
while presenting significant health risks to humans, the Plaintiff
contends.
The Plaintiff seeks to recover compensatory and punitive damages
arising out of the permanent and significant damages sustained as a
direct result of exposure to the Defendants' AFFF products at
various locations during the course of the Plaintiff's training and
firefighting activities.
The Gilligan case has been consolidated in MDL No. 2873. The case
is assigned to the Hon. Judge Richard Gergel.[BN]
The Plaintiff is represented by:
Gregory A. Cade, Esq.
Gary A. Anderson, Esq.
Kevin B. McKie, Esq.
ENVIRONMENTAL LITIGATION GROUP, P.C.
2160 Highland Avenue South
Birmingham, AL 35205
Telephone: 205-328-9200
Facsimile: 205-328-9456
- and -
J. Edward Bell, Esq.
Gabrielle Anna Sulpizio, Esq.
BELL LEGAL GROUP, LLC
219 Ridge Street
Georgetown, SC 25442
Telephone: 843-546-2408
Facsimile: 843-546-9604
3M COMPANY: Godfrey Alleges Injury From Exposure to Toxic AFFF
--------------------------------------------------------------
PAUL WESLEY GODFREY v. 3M COMPANY (f/k/a Minnesota Mining and
Manufacturing Company); BUCKEYE FIRE EQUIPMENT COMPANY; CHEMGUARD,
INC.; CHEMOURS COMPANY FC, LLC; CHUBB FIRE, LTD.; CORTEVA, INC.; DU
PONT DE NEMOURS INC. (f/k/a DOWDUPONT INC.); DYNAX CORPORATION;
E.I. DU PONT DE NEMOURS AND COMPANY; KIDDE-FENWAL, INC.; KIDDE PLC;
NATIONAL FOAM, INC.; THE CHEMOURS COMPANY; TYCO FIRE PRODUCTS LP,
as successor-in-interest to The Ansul Company; UNITED TECHNOLOGIES
CORPORATION; UTC FIRE & SECURITY AMERICAS CORPORATION, INC. (f/k/a
GE Interlogix, Inc.), Case No. 2:20-cv-01007-RMG (D.S.C., March 11,
2020), seeks damages for personal injury for the Plaintiff and for
those similarly situated resulting from exposure to aqueous
film-forming foams containing the toxic chemicals collectively
known as per and polyfluoroalkyl substances.
AFFF is a specialized substance designed to extinguish
petroleum-based fires. It has been used for decades by military and
civilian firefighters to extinguish fires in training and in
response to Class B fires.
According to the complaint, the Defendants collectively designed,
marketed, developed, manufactured, distributed, released, trained
users, produced instructional materials, promoted, sold, and/or
otherwise released into the stream of commerce AFFF with knowledge
that it contained highly toxic and bio persistent PFASs, which
would expose end users of the product to the risks associated with
PFAS.
PFAS binds to proteins in the blood of humans exposed to the
material and remains and persists over long periods of time. Due to
their unique chemical structure, PFAS accumulates in the blood and
body of exposed individuals. PFAS are highly toxic and carcinogenic
chemicals. PFAS includes perfluorooctanoic acid ("PFOA") and
perfluorooctane sulfonic acid ("PFOS") and related chemicals,
including those that degrade to PFOA and/or PFOS. The Defendants
knew, or should have known, that PFAS remain in the human body
while presenting significant health risks to humans, the Plaintiff
contends.
The Plaintiff seeks to recover compensatory and punitive damages
arising out of the permanent and significant damages sustained as a
direct result of exposure to the Defendants' AFFF products at
various locations during the course of the Plaintiff's training and
firefighting activities.
The Godfrey case has been consolidated in MDL No. 2873. The case is
assigned to the Hon. Judge Richard Gergel.[BN]
The Plaintiff is represented by:
Gregory A. Cade, Esq.
Gary A. Anderson, Esq.
Kevin B. McKie, Esq.
ENVIRONMENTAL LITIGATION GROUP, P.C.
2160 Highland Avenue South
Birmingham, AL 35205
Telephone: 205-328-9200
Facsimile: 205-328-9456
- and -
J. Edward Bell, Esq.
Gabrielle Anna Sulpizio, Esq.
BELL LEGAL GROUP, LLC
219 Ridge Street
Georgetown, SC 25442
Telephone: 843-546-2408
Facsimile: 843-546-9604
3M COMPANY: Lamoreaux Asserts Injury From Exposure to Toxic AFFF
----------------------------------------------------------------
JERRY NOLAN LAMOREAUX v. 3M COMPANY (f/k/a Minnesota Mining and
Manufacturing Company); BUCKEYE FIRE EQUIPMENT COMPANY; CHEMGUARD,
INC.; CHEMOURS COMPANY FC, LLC; CHUBB FIRE, LTD.; CORTEVA, INC.; DU
PONT DE NEMOURS INC. (f/k/a DOWDUPONT INC.); DYNAX CORPORATION;
E.I. DU PONT DE NEMOURS AND COMPANY; KIDDE-FENWAL, INC.; KIDDE PLC;
NATIONAL FOAM, INC.; THE CHEMOURS COMPANY; TYCO FIRE PRODUCTS LP,
as successor-in-interest to The Ansul Company; UNITED TECHNOLOGIES
CORPORATION; UTC FIRE & SECURITY AMERICAS CORPORATION, INC. (f/k/a
GE Interlogix, Inc.), Case No. 2:20-cv-01011-RMG (D.S.C., March 11,
2020), seeks damages for personal injury for the Plaintiff and for
those similarly situated resulting from exposure to aqueous
film-forming foams containing the toxic chemicals collectively
known as per and polyfluoroalkyl substances.
AFFF is a specialized substance designed to extinguish
petroleum-based fires. It has been used for decades by military and
civilian firefighters to extinguish fires in training and in
response to Class B fires.
According to the complaint, the Defendants collectively designed,
marketed, developed, manufactured, distributed, released, trained
users, produced instructional materials, promoted, sold, and/or
otherwise released into the stream of commerce AFFF with knowledge
that it contained highly toxic and bio persistent PFASs, which
would expose end users of the product to the risks associated with
PFAS.
PFAS binds to proteins in the blood of humans exposed to the
material and remains and persists over long periods of time. Due to
their unique chemical structure, PFAS accumulates in the blood and
body of exposed individuals. PFAS are highly toxic and carcinogenic
chemicals. PFAS includes perfluorooctanoic acid ("PFOA") and
perfluorooctane sulfonic acid ("PFOS") and related chemicals,
including those that degrade to PFOA and/or PFOS. The Defendants
knew, or should have known, that PFAS remain in the human body
while presenting significant health risks to humans, the Plaintiff
contends.
The Plaintiff seeks to recover compensatory and punitive damages
arising out of the permanent and significant damages sustained as a
direct result of exposure to the Defendants' AFFF products at
various locations during the course of the Plaintiff's training and
firefighting activities.
The Lamoreaux case has been consolidated in MDL No. 2873. The case
is assigned to the Hon. Judge Richard Gergel.[BN]
The Plaintiff is represented by:
Gregory A. Cade, Esq.
Gary A. Anderson, Esq.
Kevin B. McKie, Esq.
ENVIRONMENTAL LITIGATION GROUP, P.C.
2160 Highland Avenue South
Birmingham, AL 35205
Telephone: 205-328-9200
Facsimile: 205-328-9456
- and -
J. Edward Bell, Esq.
Gabrielle Anna Sulpizio, Esq.
BELL LEGAL GROUP, LLC
219 Ridge Street
Georgetown, SC 25442
Telephone: 843-546-2408
Facsimile: 843-546-9604
3M COMPANY: Litteral Asserts Injury From Exposure to Toxic AFFF
---------------------------------------------------------------
MICHAEL LEE LITTERAL v. 3M COMPANY (f/k/a Minnesota Mining and
Manufacturing Company); BUCKEYE FIRE EQUIPMENT COMPANY; CHEMGUARD,
INC.; CHEMOURS COMPANY FC, LLC; CHUBB FIRE, LTD.; CORTEVA, INC.; DU
PONT DE NEMOURS INC. (f/k/a DOWDUPONT INC.); DYNAX CORPORATION;
E.I. DU PONT DE NEMOURS AND COMPANY; KIDDE-FENWAL, INC.; KIDDE PLC;
NATIONAL FOAM, INC.; THE CHEMOURS COMPANY; TYCO FIRE PRODUCTS LP,
as successor-in-interest to The Ansul Company; UNITED TECHNOLOGIES
CORPORATION; UTC FIRE & SECURITY AMERICAS CORPORATION, INC. (f/k/a
GE Interlogix, Inc.), Case No. 2:20-cv-01010-RMG (D.S.C., March 11,
2020), seeks damages for personal injury for the Plaintiff and for
those similarly situated resulting from exposure to aqueous
film-forming foams containing the toxic chemicals collectively
known as per and polyfluoroalkyl substances.
AFFF is a specialized substance designed to extinguish
petroleum-based fires. It has been used for decades by military and
civilian firefighters to extinguish fires in training and in
response to Class B fires.
According to the complaint, the Defendants collectively designed,
marketed, developed, manufactured, distributed, released, trained
users, produced instructional materials, promoted, sold, and/or
otherwise released into the stream of commerce AFFF with knowledge
that it contained highly toxic and bio persistent PFASs, which
would expose end users of the product to the risks associated with
PFAS.
PFAS binds to proteins in the blood of humans exposed to the
material and remains and persists over long periods of time. Due to
their unique chemical structure, PFAS accumulates in the blood and
body of exposed individuals. PFAS are highly toxic and carcinogenic
chemicals. PFAS includes perfluorooctanoic acid ("PFOA") and
perfluorooctane sulfonic acid ("PFOS") and related chemicals,
including those that degrade to PFOA and/or PFOS. The Defendants
knew, or should have known, that PFAS remain in the human body
while presenting significant health risks to humans, the Plaintiff
contends.
The Plaintiff seeks to recover compensatory and punitive damages
arising out of the permanent and significant damages sustained as a
direct result of exposure to Defendants' AFFF products at various
locations during the course of the Plaintiff's training and
firefighting activities.
AFFF is a specialized substance designed to extinguish
petroleum-based fires. It has been used for decades by military and
civilian firefighters to extinguish fires in training and in
response to Class B fires.
The Litteral case has been consolidated in MDL No. 2873. The case
is assigned to the Hon. Judge Richard Gergel.[BN]
The Plaintiff is represented by:
Gregory A. Cade, Esq.
Gary A. Anderson, Esq.
Kevin B. McKie, Esq.
ENVIRONMENTAL LITIGATION GROUP, P.C.
2160 Highland Avenue South
Birmingham, AL 35205
Telephone: 205-328-9200
Facsimile: 205-328-9456
- and -
J. Edward Bell, Esq.
Gabrielle Anna Sulpizio, Esq.
BELL LEGAL GROUP, LLC
219 Ridge Street
Georgetown, SC 25442
Telephone: 843-546-2408
Facsimile: 843-546-9604
3M COMPANY: Vaughan Alleges Injury From Exposure to Toxic AFFF
--------------------------------------------------------------
MARSHALL D. VAUGHAN v. 3M COMPANY (f/k/a Minnesota Mining and
Manufacturing Company); BUCKEYE FIRE EQUIPMENT COMPANY; CHEMGUARD,
INC.; CHEMOURS COMPANY FC, LLC; CHUBB FIRE, LTD.; CORTEVA, INC.; DU
PONT DE NEMOURS INC. (f/k/a DOWDUPONT INC.); DYNAX CORPORATION;
E.I. DU PONT DE NEMOURS AND COMPANY; KIDDE-FENWAL, INC.; KIDDE PLC;
NATIONAL FOAM, INC.; THE CHEMOURS COMPANY; TYCO FIRE PRODUCTS LP,
as successor-in-interest to The Ansul Company; UNITED TECHNOLOGIES
CORPORATION; UTC FIRE & SECURITY AMERICAS CORPORATION, INC. (f/k/a
GE Interlogix, Inc.), Case No. 2:20-cv-01009-RMG (D.S.C., March 11,
2020), seeks damages for personal injury for the Plaintiff and for
those similarly situated resulting from exposure to aqueous
film-forming foams containing the toxic chemicals collectively
known as per and polyfluoroalkyl substances.
AFFF is a specialized substance designed to extinguish
petroleum-based fires. It has been used for decades by military and
civilian firefighters to extinguish fires in training and in
response to Class B fires.
According to the complaint, the Defendants collectively designed,
marketed, developed, manufactured, distributed, released, trained
users, produced instructional materials, promoted, sold, and/or
otherwise released into the stream of commerce AFFF with knowledge
that it contained highly toxic and bio persistent PFASs, which
would expose end users of the product to the risks associated with
PFAS.
PFAS binds to proteins in the blood of humans exposed to the
material and remains and persists over long periods of time. Due to
their unique chemical structure, PFAS accumulates in the blood and
body of exposed individuals. PFAS are highly toxic and carcinogenic
chemicals. PFAS includes perfluorooctanoic acid ("PFOA") and
perfluorooctane sulfonic acid ("PFOS") and related chemicals,
including those that degrade to PFOA and/or PFOS. The Defendants
knew, or should have known, that PFAS remain in the human body
while presenting significant health risks to humans, the Plaintiff
contends.
The Plaintiff seeks to recover compensatory and punitive damages
arising out of the permanent and significant damages sustained as a
direct result of exposure to the Defendants' AFFF products at
various locations during the course of the Plaintiff's training and
firefighting activities.
The Vaughan case has been consolidated in MDL No. 2873. The case is
assigned to the Hon. Judge Richard Gergel.[BN]
The Plaintiff is represented by:
Gregory A. Cade, Esq.
Gary A. Anderson, Esq.
Kevin B. McKie, Esq.
ENVIRONMENTAL LITIGATION GROUP, P.C.
2160 Highland Avenue South
Birmingham, AL 35205
Telephone: 205-328-9200
Facsimile: 205-328-9456
- and -
J. Edward Bell, Esq.
Gabrielle Anna Sulpizio, Esq.
BELL LEGAL GROUP, LLC
219 Ridge Street
Georgetown, SC 25442
Telephone: 843-546-2408
Facsimile: 843-546-9604
ADMIN RECOVERY: Faces Purcell Suit Alleging Violation of FDCPA
--------------------------------------------------------------
Teresa Purcell, individually and on behalf of all those similarly
situated v. ADMIN RECOVERY, LLC, Case No. 0:20-cv-60659-XXXX (S.D.
Fla., March 30, 2020), is brought against the Defendant for
violations of the Fair Debt Collection Practices Act, and the
Florida Consumer Collection Practices Act.
The Defendant mailed a collection letter, dated January 16, 2020,
to the Plaintiff in an attempt to collect a consumer debt. The
Plaintiff contends that the Defendant's Collection Letter falsely
states that the consumer must dispute the consumer debt in writing
within 30 days despite the clear wording of the FDCPA, which
contains no such requirement that the consumer must dispute the
debt in writing.
By falsely claiming to have given the Plaintiff the information
required by the FDCPA, the Defendant mislead the Plaintiff and the
proposed class into believing that the Demand Letter contained the
proper notice required by the FDCPA, says the complaint.
The Plaintiff is a natural person, and a citizen of the State of
Florida.
The Defendant is a "consumer collection agency."[BN]
The Plaintiff is represented by:
Jibrael S. Hindi, Esq.
Thomas J. Patti, Esq.
THE LAW OFFICES OF JIBRAEL S. HINDI
110 SE 6th Street, Suite 1744
Fort Lauderdale, FL 33301
Phone: 954-907-1136
Fax: 855-529-9540
Email: jibrael@jibraellaw.com
tom@jibraellaw.com
AETNA LIFE INSURANCE: Prolow Sues Over Denial of PBR Therapy
------------------------------------------------------------
Sharon Prolow, on behalf of herself and all others similarly
situated v. AETNA LIFE INSURANCE COMPANY and AETNA INC., Case No.
9:20-cv-80545-KAM (S.D. Fla., March 31, 2020), is brought on behalf
of beneficiaries of the Employee Retirement Income Security Act
plans administered by Aetna, who were denied Proton Beam Radiation
Therapy.
The Plaintiff contends that the plan beneficiaries were denied PBRT
because of Aetna's uniform application of an unlawful medical
policy to deny as experimental or investigational such treatment
for cancer, despite PBRT being recognized for decades by the
medical community as an established, medically appropriate
treatment for cancer, including breast cancer. The Plaintiff
insists that instead of acting solely in the interests of the
participants and beneficiaries of its health insurance plans, Aetna
denied coverage for PBRT to treat cancer because, on average, PBRT
is significantly more expensive than traditional Intensity
Modulated Radiotherapy ("IMRT") or other treatments.
In denying coverage, Aetna follows its Clinical Policy Bulletin No.
270 ("Proton Beam, Neutron Beam, and Carbon Ion Radiotherapy"),
which was initially created in 1998 and reviewed most recently on
July 29, 2019, (the "PBRT Clinical Policy Bulletin"). While Aetna's
PBRT Clinical Policy Bulletin considers PBRT "medically necessary"
for persons 21 years old or younger for all types of cancer, it
mandates the denial of coverage for PBRT as "experimental and
investigational" to treat most cancers on patients over 21 years
old for all plans insured or administered by Aetna.
According to the complaint, by promulgating and applying its PBRT
Clinical Policy Bulletin, Aetna has sacrificed the interests of
insureds like Ms. Prolow and Class members so that it can
artificially decrease the number and value of claims it is required
to pay from its own assets (i.e., with respect to self-funded plans
with stop-loss provisions requiring Aetna to cover benefits above a
certain threshold) and the assets of its employer-sponsored
customers (i.e., with respect to other self-funded plans). Under
ERISA, the Plaintiff and Class members are entitled to equitable
and declaratory relief enjoining the application of Aetna's PBRT
Clinical Policy Bulletin and awarding such other relief the Court
finds appropriate.
Plaintiff Sharon Prolow is a citizen of Florida, who resides in
Palm Beach, Florida.
Aetna is a global health care benefits company.[BN]
The Plaintiff is represented by:
Stephanie A. Casey, Esq.
COLSON HICKS EIDSON
255 Alhambra Circle, Penthouse
Coral Gables, FL 33134
Phone: (305) 476.7400
Facsimile: (305) 476.7444
Email: scasey@colson.com
eservice@colson.com
- and -
Harley S. Tropin, Esq.
Maria D. Garcia, Esq.
Robert Neary, Esq.
Frank A. Florio, Esq.
KOZYAK TROPIN & THROCKMORTON LLP
2525 Ponce de Leon Blvd., 9th Floor
Coral Gables, FL 33134
Phone: (305) 372-1800
Facsimile: (305) 372-3508
Email: hst@kttlaw.com
mgarcia@kttlaw.com
rn@kttlaw.com
fflorio@kttlaw.com
AMENTUM GOVERNMENT: Faces Schmidt Class Suit in M.D. Pennsylvania
-----------------------------------------------------------------
A class action lawsuit has been filed against Amentum Government
Services Parent Holdings LLC. The case is styled as George Schmidt,
Michael Thompson, John Jabara, Similarly Situated John Does v.
Amentum Government Services Parent Holdings LLC, Case No.
3:20-cv-00500-MEM (M.D. Pa., March 30, 2020).
The lawsuit arises from contract-related issues.
Amentum Government Services Parent Holdings LLC is a contractor to
the U.S. federal and allied governments.[BN]
The Plaintiffs are represented by:
Cynthia L. Pollick, Esq.
THE EMPLOYMENT LAW FIRM
363 Laurel Street
Pittston, PA 18640
Phone: (570) 654-9675
Fax: 6545021
Email: pollick@lawyer.com
AMERICAN FEDERATION: Summary Judgment Bid in Whitfield Suit Granted
-------------------------------------------------------------------
In the case, SAM WHITFIELD, et al., Plaintiffs v. AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES, et al., Defendants, Case No.
5:18-cv-00229-KGB (E.D. Ark.), Judge Krintine G. Baker of the U.S.
District Court for the Eastern District of Arkansas, Pine Bluff
Division, granted both (i) the Union Defendants' motion for summary
judgment, and (ii) Defendant Sherri Harrison's motion to dismiss.
The Plaintiffs are members of the American Federation of Government
Employees, AFL-CIO ("AFGE" or "the Union"), Local 953, employed at
the Pine Bluff Arsenal ("PBA"), a United States Army installation
located in Jefferson County, Arkansas. They filed a class-action
complaint against defendants on Sept. 7, 2018.
On Nov. 19, 2018, the Union Defendants filed a motion to dismiss
pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of
Civil Procedure. On Dec. 26, 2018, Ms. Harrison notified the Court
of her intent to file a motion to dismiss and moved to stay the
matter due to a lapse of government appropriations. On Jan. 2,
2019, the Court stayed this case pending the restoration of funding
to the Department of Justice. On Jan. 29, 2019, Ms. Harrison
notified the Court that funding was restored on Jan. 28, 2019. On
Nov. 21, 2019, the Court lifted the stay in the case.
On Dec. 12, 2019, Ms. Harrison filed a motion to dismiss pursuant
to Federal Rule of Civil Procedure 12(b)(5) (Dkt. No. 23). On Feb.
18, 2020, the Court, recognizing that the Union Defendants attached
matters outside the pleadings to their motion to dismiss, converted
the motion into a motion for summary judgment under Federal Rule of
Civil Procedure 56. To date, the Plaintiffs have not responded to
either the Union Defendants' motion for summary judgment or Ms.
Harrison's motion to dismiss.
Because Ms. Harrison has not been properly served, Judge Baker must
dismiss the action without prejudice against her. Additionally,
because the Plaintiffs have neither identified nor served the Doe
Defendants, the Judge dismisses without prejudice the Plaintiffs'
claims against them. Finally, the Judge determines that the Union
Defendants are entitled to summary judgment as a matter of law on
the federal claims asserted against them, and the pre-empted
federal claims asserted against the Union Defendants are dismissed
with prejudice. She dismisses without prejudice any non-pre-empted
federal and state law claims asserted by the Plaintiffs.
The record reflects that Ms. Harrison was served with the summons
and the complaint on Oct. 29, 2018. To date, however, service has
not been accomplished on the United States Attorney for the Eastern
District of Arkansas or the United States Attorney General. The
Plaintiffs have not offered any explanation for failing to serve
Ms. Harrison properly. Consequently, Judge Baker must dismiss the
action without prejudice against Ms. Harrison.
The Judge also notes that the Plaintiffs have neither identified
nor served the Doe Defendants. On Nov. 21, 2019, the Court ordered
the Plaintiffs to show cause within 14 days why their claims
against the Doe Defendants should not be dismissed for failure to
serve. To date, the Plaintiffs have not complied with the Court's
Order, and the deadline for doing so has expired. Accordingly, the
Judge dismisses without prejudice the Plaintiffs' claims against
the Doe Defendants.
The Union Defendants are entitled to summary judgment as a matter
of law on the federal claims asserted against them, and Judge Baker
dismisses with prejudice the Plaintiffs' pre-empted federal claims
against these Defendants. She dismisses without prejudice any
remaining federal and state-law claims. The Judge acknowledges
that a union member alleging a violation of his right to free
speech may file suit against a labor union in federal district
court pursuant to 29 U.S.C. Sections 411 and 412. However, at no
point in these proceedings have the Plaintiffs sought relief under
these sections. To the extent the Plaintiffs allege that the Union
failed to represent properly its members and was unresponsive to
their complaints, those claims are pre-empted by the CSRA.
Having carefully reviewed the independent arbitrator's decisions,
Judge Baker finds that there was "some evidence" supporting the
decision to remove the Plaintiffs from office. She also finds that
the Union's interpretation of its constitution was neither
unreasonable nor made in bad faith. Accordingly, the Plaintiffs'
procedural due process claims fail as a matter of law.
The Plaintiffs list 22 separate prayers for relief. Among them,
theu demand reimbursement for all travelling expenses, room and
board, food expenses, and all other expenses they would have
received had it been properly presented to the union body for
approval. They have cited no authority, and the Judge has found
none, for the proposition that a federal district court may order a
labor union to reimburse its members for expenses that were not
submitted to the union for approval. In fact, it is likely that
such expenditures would violate the LMRDA, which expressly requires
a union to expend its money in accordance with its constitution and
bylaws and any resolutions of the governing bodies adopted
thereunder.
The Plaintiffs allegations are insufficient to entitle them to the
declaratory relief prayed in their complaint. That is because the
availability of relief under the Declaratory Judgment Act
"presupposes the existence of a judicially remediable right," and
no such federal right exists. For the reasons explained, the
Defendants have not violated the Plaintiffs' federal constitutional
or statutory rights, and they have followed the Union's internal
disciplinary procedures, at least on the record before the Court.
As such, the Plaintiffs are not entitled to declaratory relief or
any relief on the federal claims alleged, rules the Court.
The Plaintiffs also request that the United States assume control
of Local 953 and conduct a forensic audit and full investigation of
Local 953's finances, and charge the Defendants with unspecified
crimes. The Plaintiffs cite no authority for the relief they seek,
and the Defendants correctly point out that authority to
investigate labor unions and adjudicate representation disputes
lies primarily with the Secretary of Labor and the FLRA,
respectively. Put simply, this is not the appropriate forum in
which to seek criminal charges against the Defendants, Judge Baker
opines.
With respect to the Plaintiffs' VRA claim, the Judge finds that
they have not identified any specific provision that was violated
or any specific act of a Defendant that would support a violation
of the VRA. Instead, the Plaintiffs merely assert that the
Defendants and each of them have attempted to circumvent the will
of the majority by imposing their will upon the union body in
violation of the 1964 Voting Rights Act. The Plaintiffs' VRA claim
fails as a matter of law. Likewise, the Plaintiffs' bare statement
that jurisdiction is also invoked pursuant to Army Regulations
690-600 and further invoked pursuant to the Civil Rights Act of
1964, as amended, is legally insufficient.
As part of their prayer for relief, the Plaintiffs request an
unspecified amount of damages for pain and suffering and
intentional infliction of emotional distress and harassment, $1.5
million in punitive damages for purposely failing to respond to
union members' complaint filed on Oct. 28, 2017, and $1 million for
gross negligence and malfeasance. The Plaintiffs cite no provision
of federal law authorizing emotional distress or punitive damage
awards for the types of violations described in the complaint.
Second, and more to the point, the Judge has already determined
that each of the Plaintiffs' federal-law claims fails. To the
extent they assert state-law tort claims against the Defendants,
and to the extent those claims are not pre-empted by federal law,
the Judge declines to exercise supplemental jurisdiction over such
claims and dismisses without prejudice any such claims.
Finally, an injunction is a remedy, not a separate cause of action,
rules the Court. Because all of the Plaintiffs' substantive claims
under federal law fail, their requests for injunctive relief based
on those federal claims must be denied.
For the foregoing reasons, Judge Baker granted the Union
Defendants' motion for summary judgment. She dismissed with
prejudice the Plaintiffs' pre-empted federal claims against the
Union Defendants. She dismissed without prejudice the Plaintiffs'
non-pre-empted federal and state-law claims against the Union
Defendants. She also granted Ms. Harrison's motion to dismiss and
dismissed without prejudice the Plaintiffs' claims against Ms.
Harrison. Finally, the Judge dismissed without prejudice the
Plaintiffs' claims against the Doe defendants.
A full-text copy of the Court's March 18, 2020 Order is available
at https://is.gd/06Ogwb from Leagle.com.
Sam Whitfield, Leautry Pierce, Margaret Hood, Elbert Bell, Dorothy
Howard, Jackie Rogers, Kathryn Magsby, Marvin Childress, Anthony
Brock, Rebecca Fowler, Maxine Jones, Ryan Stills, Charlie Rucker,
Jimmy Flowers, Brenda Ricks, Brandon Robinson, Rod Harris, Rocky
Foster, Tonda Burnett, Andrew Scruggs, Ethel Hudson, Teresa
Willman, Carolyn Washington, Michael Sanders, Bruce Wayne Spicer,
Shoshoa Warfield, Percy Stokes, Sandra Washington, Verlinda Harris,
Karen McNeely, Brandi Means, Nathaniel Fuller, Joann Winston, Terry
Phillips, Alonzo Carroll, Britt Murray, Sonya Moore, Jackie Green,
Robert Hardnett, Greg Etherly, Alvin Shelton, Anthony Collins,
Luketha Stokes, Ezra Thompson, Percy Collins, Roderick Rembert &
Anthony Lee, Plaintiffs, represented by J.F. Valley, J. F. Valley,
Esq., P.A.
American Federation of Government Employees, David Cox, President
of American Federation of Government Employees (AFGE), In his
Individual and Official Capacity, Michael Kelly, Vice President of
AFGE Local Union 953, in his Individual and Official Capacity,
Jesus Sanchez, District Representative of AFGE Local Union 953, in
his Individual and Official Capacity, Robert Harrison, District
Representative of Local Union 953, in his Individual and Official
Capacity, National Executive Council, Dave Gassett, Union Member,
in his Individual and Official Capacity, Rodney Davis, Union
Member, in his Individual and Official Capacity & Does, Unknown
Defendants, Defendants, represented by Chad Edward Harris, American
Federation of Government Employees, pro hac vice & John L. Burnett
-- jburnett@laveyandburnett.com -- Lavey & Burnett.
Sherri Harrison, Management Employee Relations, Union Liason
Officer, an Employee of Pine Bluff, Arkansas Arsenal, in her
Individual and Official Capacity, Defendant, represented by Jamie
Goss Dempsey, U. S. Attorney's Office.
AUROBINDO PHARMA: Wohlmuth Sues Over Sale of NDMA-Laced Metformin
-----------------------------------------------------------------
Elaine Wohlmuth, on behalf of herself and all others similarly
situated v. AUROBINDO PHARMA USA, INC., Case No.
3:20-cv-03403-BRM-LHG (D.N.J., March 30, 2020), is a brought to
recover damages and restitution for breach of the implied warranty
of merchantability, unjust enrichment, fraudulent concealment,
fraud, conversion, violation of California's Consumer Legal
Remedies Act, and violation of California's Unfair Competition
Law.
The putative class action lawsuit arises from the Defendant's
manufacturing, distribution, and sale of the generic medication
metformin that contains dangerously high levels of
N-nitrosodimethylamine ("NDMA"), a carcinogenic and liver-damaging
impurity.
Metformin is a prescription medication that has been sold under
brand names such as Glucophage. Metformin is used to control high
blood sugar in patients with type 2 diabetes. However, Aurobindo's
manufacturing process has caused metformin to contain dangerously
high levels of NDMA. Aurobindo has always marketed metformin as a
safe and effective product and has continued to do so despite the
findings of Valisure.
According to the complaint, the Plaintiff and the Class were
injured by the full purchase price of their metformin medications.
These medications are worthless, as they contain harmful levels of
NDMA. As the medications expose users to NDMA well above the legal
limit, the medications are not fit for human consumption. The
Plaintiff says she is further entitled to statutory damages,
damages for the injury sustained in consuming high levels of
acutely-toxic NDMA, and for damages related to the Defendant's
conduct.
Ms. Wohlmuth was prescribed, purchased and consumed metformin
manufactured by the Defendant.
Aurobindo has been engaged in the manufacturing, distribution, and
sale of defective metformin in the United States, including in the
States of New Jersey and California.[BN]
The Plaintiff is represented by:
Andrew J. Obergfell, Esq.
Max S. Roberts, Esq.
BURSOR & FISHER, P.A.
888 Seventh Avenue
New York, NY 10019
Phone: (646) 837-7150
Facsimile: (212) 989-9163
Email: aobergfell@bursor.com
mroberts@bursor.com
- and -
L. Timothy Fisher, Esq.
Neal J. Deckant, Esq.
BURSOR & FISHER, P.A.
1990 North California Blvd., Suite 940
Walnut Creek, CA 94596
Phone: (925) 300-4455
Facsimile: (925) 407-2700
Email: ltfisher@bursor.com
ndeckant@bursor.com
AUSTYN SPENCER: Settlement in Abel FLSA Suit Gets Final Approval
----------------------------------------------------------------
In the case, SHAWN ABEL, on behalf of himself and others similarly
situated, Plaintiff, v. AUSTYN SPENCER ENTERPRISES, LLC, BLUE SKY
PIZZA, LLC and RHETT HIGHTOWER, Defendants, Case No.
18-CV-166-BLG-SPW (D. Mont.), Judge Susan P. Waters of the U.S.
District Court for the District of Montana, Billings Division,
granted the Plaintiff's Consent Motion for Final Certification of
the State Law Claims to Proceed as Class Actions for Settlement
Purposes, Approval of a Class Action Settlement and Approval of a
Collective Action Settlement, and the Supplement thereto filed
March 10, 2020.
The settlement reached by the parties, as set forth in the Joint
Stipulation and Settlement Agreement is fair, reasonable and
adequate, suffers from no obvious defects, was reached after
arm's-length negotiations between the parties, and constitutes a
reasonable compromise of a bona fide dispute of the claims and
defenses in the matter and, therefore, is approved;
The Judge granted final certification of the settlement class and
certification of that class pursuant to Fed. R. Civ. P. 23. The
final certification of the Fair Labor Standards Act ("FLSA")
collective action is certified pursuant to Section 16(b) of the
FLSA.
For settlement purposes only, and pursuant to Fed. R. Civ. P. 23,
the Judge certified the class of all persons employed as delivery
drivers and who delivered at least 100 customer orders in Montana
or Idaho between Nov. 21, 2015 through Aug. 6, 2019 who do not
opt-out of the Litigation.
For settlement purposes only, and pursuant to 29 U.S.C. Section
216(b), the Judge certified the FLSA Class Members as all current
or former delivery drivers who delivered a minimum of 100 customer
orders for the Defendant in Montana or Idaho during the period
commencing Nov. 21, 2015 through Aug. 6, 2019 who timely submitted
a claim form.
Shawn Abel is appointed as the Class Representative and he is
awarded a $3,500 service award. The Plaintiff's Counsel are
awarded their reasonable attorneys' fees and costs of $83,333.33.
The Defendants will pay the settlement administrator's fees from
the Maximum Settlement Amount.
The Parties are to implement the terms of the Settlement.
The Judge directed the Clerk to mark the matter dismissed with
prejudice.
A full-text copy of the Court's March 11, 2020 Order is available
at https://is.gd/kUEIw0 from Leagle.com.
Shawn Abel, individually and on behalf of other similarly situated
persons, Plaintiff, represented by Eli Karsh, LIBERMAN, GOLDSTEIN &
KARSH, pro hac vice, Mark A. Potashnick, WEINHAUS & POTASHNICK, pro
hac vice & William D'Alton -- bill@daltonlawpc.com -- D'Alton Law
Firm, P.C.
Austyn Spencer Enterprises, LLC & Blue Sky Pizza, LLC, Defendants,
represented by Calvin J. Stacey -- -- STACEY & FUNYAK, Kathleen
McLeod Caminiti -- kcaminiti@fisherphillips.com -- FISHER &
PHILLIPS LLP, pro hac vice & Sheila M. Willis --
swillis@fisherphillips.com -- FISHER & PHILLIPS LLP, pro hac vice.
Rhett Hightower, Defendant, represented by Calvin J. Stacey, STACEY
& FUNYAK & Sheila M. Willis, FISHER & PHILLIPS LLP.
BC LIGHTING: Faces Alvarez Suit Over Unpaid Minimum and OT Wages
----------------------------------------------------------------
SAAC ALVAREZ, an individual v. B.C. LIGHTING, INC., a California
corporation, CALIFORNIA METAL GROUP, INC., a California
corporation; and DOES 1 through 50, inclusive, Case No. 20STCV10050
(Cal. Super., Los Angeles Cty., March 11, 2020), alleges that the
Defendants violated the California Labor Code by failing to pay
meal period premiums, and overtime and minimum wages owed to the
Plaintiff and all persons similarly situated.
The Plaintiff alleges that he consistently worked about 60 hours a
week, resulting in substantial overtime. Rather than pay him what
he was entitled to, the Defendants manipulated his paycheck stubs
to reflect an even 40 hours a week worked at his regular hourly
rate. To keep overtime payments off the books, the Defendants would
write his separate checks for his overtime worked and calculated it
at his regular hourly rate, not the one and one-half times the
regular rate of pay him was entitled to. He adds that he regularly
worked more than 40 hours a week, 8 hours per day, and worked 7
days a week without a day off.
The Plaintiff became employed by the Defendants in 2000 as a
welder. The Plaintiff's duties involved welding work related to
residential and commercial lamps.
California Metal Group Inc. (trade name B. C. Lighting) is in the
sheet metalwork business.[BN]
The Plaintiff is represented by:
Gary R. Carlin, Esq.
Brent S. Buchsbaum, Esq.
Laurel N. Haag, Esq.
Claudette H. Villicana, Esq.
LAW OFFICES OF CARLIN & BUCHSBAUM, LLP
301 East Ocean Boulevard, Suite 1550
Long Beach, CA 90802
Telephone: (562) 432-8933
Facsimile: (562) 435-1656
E-mail: gary@carlinbuchsbaum.com
brent@carlinbuchsbaum.com
laurel@carlinbuchsbaum.com
claudette@carlinbuchsbaum.com
BP EXPLORATION: Court Dismisses Herrera Suit with Prejudice
-----------------------------------------------------------
In the case, FANNY ANTOLINA HERRERA, v. BP EXPLORATION AND
PRODUCTION, INC., ET AL., SECTION "R" (4), Civil Action No. 18-8322
(E.D. La.), Judge Sarah S. Vance of the U.S. District Court for the
Eastern District of Louisiana granted the Defendants' motion for
summary judgment.
The case arises from Plaintiff Herrera's alleged exposure to
harmful chemicals following the Deepwater Horizon oil spill. The
Plaintiff alleges that she assisted in the clean-up of the
Deepwater Horizon spill. During this work she was allegedly
exposed to oil, dispersants, and other harmful chemicals.
According to her, on June 20, 2013, she was diagnosed with chronic
conjunctivitis and various other chronic conditions.
On Aug. 31, 2018, the Plaintiff filed the action against Defendants
BP Exploration & Production Inc. and BP America Production Co.,
pursuant to the terms of the Medical Benefits Class Action
Settlement Agreement in In re Oil Spill by the Oil Rig "Deepwater
Horizon" in the Gulf of Mexico, on April 20, 2010. The Plaintiff
alleges that her injuries were legally and proximately caused by
her exposure to toxic chemicals during her clean-up efforts.
The Defendants now move for summary judgment. The Plaintiff has
not filed an opposition to the Defendants' motion.
Judge Vance finds no indication that te Plaintiff has retained an
expert to provide testimony at trial related to her medical
diagnosis or causation. Nor is there an indication that she will
present expert testimony from a non-retained treating physician.
The Plaintiff did not make any expert disclosures by the
Court-ordered deadline of Jan. 10, 2020. Her failure to provide
any expert disclosures to support a claim that requires expert
testimony demonstrates that she cannot carry her burden of proof.
The only evidence before the Court that could support the
Plaintiff's medical diagnosis, or an inference of causation, is a
June 2013 diagnostic form from Industrial Medicine Specialists.
The report lacks a causation opinion, or information necessary to
develop a causation opinion. Scientific knowledge of the harmful
level of exposure to a chemical, plus knowledge that the Plaintiff
was exposed to such quantities, are minimal facts necessary to
sustain a plaintiff's burden in a toxic tort case. The examination
therefore fails to prove legal causation.
Moreover, Judge Vance has found such IMS reports inadmissible under
the Federal Rules of Evidence, as the owner of IMS previously
testified11 that the clinicians conducting IMS examinations did not
follow the standards generally accepted in the medical community
for establishing medical diagnoses.
For the foregoing reasons, Judge Vance granted the Defendants'
unopposed motion for summary judgment, and dismissed the
Plaintiff's claims with prejudice.
A full-text copy of the Court's March 11, 2020 Order & Reasons is
available at https://is.gd/mlyqdt from Leagle.com.
Fanny Antolina Herrera, Plaintiff, pro se.
BP Exploration & Production, Inc. & BP America Production Company,
Defendants, represented by Don Keller Haycraft -
dkhaycraft@liskow.com - Liskow & Lewis, Michael P. Cash -
mcash@liskow.com - Liskow & Lewis, Charles B. Wilmore -
cbwilmore@liskow.com - Liskow & Lewis, Chauntelle Renee Wood -
crwood@liskow.com - Liskow & Lewis, Devin C. Reid -
dcreid@liskow.com - Liskow & Lewis, Jillian M. Marullo , Liskow &
Lewis, Russell Keith Jarrett - rkjarrett@liskow.com - Liskow &
Lewis & Wade T. Howard - wthoward@liskow.com - Liskow & Lewis.
BROUSSEAU MANAGEMENT: FLSA Class Certified
------------------------------------------
In the class action lawsuit styled as ROBERT LEJA, JR. AND THOMAS
DAVIS v. BROUSSEAU MANAGEMENT CO., L.L.C., ET AL., Case No.
3:19-cv-00269-BAJ-EWD (M.D. La.), the Hon. Judge Brian A. Jackson
entered an order:
1. conditionally certifying collective action pursuant to the
Fair Labor Standards Act to include the following persons:
"all hourly employees of Defendants who were not paid at
least 1.5 times their hourly rate for time worked in
excess of 40 hours in a workweek, at any time from May 10,
2016 to the present";
2. approving the Notice and Consent Forms and disseminating
them by first class U.S. mail, e-mail, and text message to
putative class members in accordance and consistent with
this Order;
3. directing Defendants no later than 10 days after entry of
this Order, to provide to Plaintiffs' counsel in Excel
(.xlsx) format the following information regarding all
putative class members: full name; last known addresses
with city, state, and Zip code; last known email addresses
(non-company address if applicable); last known telephone
numbers; beginning dates of employment; and ending dates
of employment (if applicable).
4. directing Plaintiffs' counsel no later than 20 days after
entry of this Order, to send a copy of the Court-approved
Notice and Consent Form to the putative class members by
first class U.S. mail, email, and text message;
5. directing Defendants to post the Notice and Consent Forms
on all jobsites for 60 days in an open and obvious
location;
6. directing the putative class members to return their
signed Consent Forms to Plaintiffs' counsel for filing
with the Court, no later than 60 days after mailing of the
Notice and Consent Forms to potential class members.
Defendants may remove the posted Notice and Consent Forms;
and
7. authorizing Plaintiffs counsel 30 days after mailing of
the Notice and Consent Forms to potential class members,
to mail, email, and text a second, identical copy of the
Notice and Consent Form to the putative class members
reminding them of the deadline for the submission of the
Consent Forms.[CC]
CAH ACQUISITION 2: Trustee's $75K Cash Sale of Assets to NHI Okayed
-------------------------------------------------------------------
Judge Joseph N. Callaway of the U.S. Bankruptcy Court for the
Eastern District of North Carolina authorized Thomas W. Waldrep,
Jr., the duly appointed Chapter 11 Trustee in the case of CAH
Acquisition Co. #2, LLC, doing business as Oswego Community
Hospital, to sell all real property and associated personal
property of the Debtor to Oswego Neuropsych Hospital, Inc. ("NHI")
for $75,000 cash.
The Agreement and all of the terms and conditions thereof are
approved.
The Sale is free and clear of all Liens, Claims, Encumbrances and
other interests of any kind or nature whatsoever, with such Liens,
Claims, Encumbrances and other interests to attach to the proceeds
of the Sale.
Pursuant to the terms of the Agreement, the Purchaser has elected
not to seek assignment of any executory contract and/or unexpired
lease held by the Debtor.
The Order will take effect immediately, will not be stayed, and the
Court finds and concludes that good cause exists to waive any
applicable stay provided under Bankruptcy Rules 6004(g), 6004(h),
6006(d), 7062, 9014, or otherwise. Accordingly, any such stay is
waived, and the Trustee and the Purchaser are authorized to close
the Sale immediately upon entry of the Order in accordance with and
subject in all respects to the terms and conditions of the
Agreement.
The Order constitutes a final and appealable order within the
meaning of 28 U.S.C. Section 158(a) notwithstanding Bankruptcy
Rules 6004(h) and 6006(d).
About Oswego Community Hospital
CAH Acquisition Company #2, LLC d/b/a Oswego Community Hospital, is
a Delaware limited liability company that owns a for-profit 12-bed
hospital at 800 Barker Drive, Oswego, Kansas 67356.
The Debtor sought Chapter 11 protection (Bankr. E.D. N.C. Case No.
19-01230-5-JNC) on March 17, 2019.
The case is jointly administered along with six other critical
access hospitals under the Debtor's Chapter 11 Case. On March 18,
2019, Thomas W. Waldrep, Jr., was appointed as the Trustee for the
Debtors.
Sherwood Partners, Inc. was appointed as Sales Agent to the Trustee
on Oct. 23, 2019.
CASA SYSTEMS: Bid to Dismiss Hook Class Action Pending
------------------------------------------------------
Casa Systems, Inc. said in its Form 10-K report filed with the U.S.
Securities and Exchange Commission on February 27, 2020, for the
fiscal year ended December 31, 2019, that the defendants' motion to
dismiss the class action suit entitled, Donald Hook v. Casa
Systems, Inc. et al., is pending.
On August 9, 2019, a putative class action lawsuit, Donald Hook v.
Casa Systems, Inc. et al., was filed in the Supreme Court of New
York, New York County, against the company, certain of its current
and former executive officers and directors, Summit Partners, the
company's largest investor, and the underwriters from the company's
initial public offering (IPO).
The complaint purports to be brought on behalf of all purchasers of
the company's common stock in and/or traceable to its IPO and
generally alleges that (i) each of the defendants violated Section
11 and/or Section 12(a)(2) of the Securities Act of 1933, as
amended, or the Securities Act, because documents related to the
company's IPO including its registration statement and prospectus
were materially misleading by containing untrue statements of
material fact and/or omitting to state material facts necessary to
make such statements not misleading and (ii) the individual
defendants and Summit Partners acted as controlling persons within
the meaning and in violation of Section 15 of the Securities Act.
On November 22, 2019, Plaintiff filed an Amended Complaint,
purportedly on behalf of all purchasers of the company's common
stock in and/or traceable to to the company's IPO, which contains
substantially similar allegations as the initial complaint,
described above, and asserts claims for violations of Sections 11
and 15 of the Securities Act.
Plaintiff seeks compensatory damages, costs and expenses, including
counsel and expert fees, rescission or a rescissory measure of
damages, disgorgement, and equitable and injunctive relief.
On January 21, 2020, Defendants filed motions to dismiss the
amended complaint.
Casa Systems, Inc., incorporated on February 28, 2003, is provides
a software-centric infrastructure solutions. In addition, the
Company offers solutions for next-generation distributed and
virtualized architectures in cable operator, fixed telecom and
wireless networks. Its products include axyom software platform,
delivery platforms, multi-service applications, capacity expansion
products. The company is based in Andover, Massachusetts.
CASA SYSTEMS: Bid to Dismiss Panther Partners Suit Pending
----------------------------------------------------------
Casa Systems, Inc. said in its Form 10-K report filed with the U.S.
Securities and Exchange Commission on February 27, 2020, for the
fiscal year ended December 31, 2019, that the defendants' motion to
dismiss the class action suit entitled, Panther Partners, Inc. v.
Guo et al., is pending.
On August 13, 2019, a putative class action lawsuit, Panther
Partners, Inc. v. Guo et al., was filed in the Supreme Court of New
York, New York County, against the company, certain of its current
and former executive officers and directors, and the underwriters
from the company's April 30, 2018 follow-on offering of common
stock, which the company refers to as its Follow-on Offering.
The complaint purports to be brought on behalf of all purchasers of
the company's common stock in its Follow-on Offering and generally
alleges that (i) each of the defendants, other than Abraham
Pucheril, violated Section 11 of the Securities Act, and each of
the defendants violated Section 12(a)(2) of the Securities Act,
because documents related to the company's Follow-on Offering,
including our registration statement and prospectus, was materially
misleading by containing untrue statements of material fact and/or
omitting to state material facts necessary to make such statements
not misleading and (ii) the individual defendants acted as
controlling persons within the meaning and in violation of Section
15 of the Securities Act.
On November 22, 2019, Plaintiff filed an Amended Class Action
Complaint, purportedly on behalf of all purchasers of the company's
common stock in its Follow-on Offering, which contains
substantially similar allegations and asserts the same claims as
the initial complaint.
Plaintiff seeks compensatory damages, costs and expenses, including
counsel and expert fees, rescission or a rescissory measure of
damages, and equitable and injunctive relief.
On January 21, 2020, Defendants filed motions to dismiss the
amended complaint.
Casa Systems, Inc., incorporated on February 28, 2003, is provides
a software-centric infrastructure solutions. In addition, the
Company offers solutions for next-generation distributed and
virtualized architectures in cable operator, fixed telecom and
wireless networks. Its products include axyom software platform,
delivery platforms, multi-service applications, capacity expansion
products. The company is based in Andover, Massachusetts.
CENTURY FENCE: Three Subclasses in Reilly Labor Suit Certified
--------------------------------------------------------------
In the case, MICHAEL REILLY, WILLIAM COULMAN, JASON RAMSDELL, and
JASON GRETSCHMAN, on behalf of themselves and all other similarly
situated persons, Plaintiffs, v. CENTURY FENCE COMPANY, Defendant,
Case No. 18-cv-315-jdp (W.D. Wis.), Judge James D. Peterson of the
U.S. District Court for the Western District of Wisconsin (i)
granted the Defendant's motion for leave to file a surreply in
opposition to the Plaintiffs' motion for class certification; (ii)
denied the Plaintiffs' motion to invalidate the settlement
agreements and releases; and (ii) granted the Plaintiffs' motion
for class certification.
The Plaintiffs are current or former employers of defendant Century
Fence Company. Among other things, Century Fence provides road
marking services to private and governmental clients. It has
locations in Pewaukee and Knapp, Wisconsin, but it also performs
work in Minnesota.
The Plaintiffs are suing Century Fence for failing to pay them in
accordance with the Fair Labor Standards Act, Wisconsin law, and
Minnesota law. They challenge the validity of a proposed
settlement and release that Century sent to its employees.
Specifically, Century has offered employees a cash settlement in
exchange for release of any claim that it failed to pay overtime
compensation on the 'cash fringe' portion of wages paid on
non-prevailing wage jobs. The Plaintiffs contend that the
settlements and releases are invalid for multiple reasons,
including that the settlements don't fully compensate employees for
past violations and that Century Fence was required to get court
approval before entering into a settlement.
The Court conditionally certified claims under the FLSA in a
previous order. Three motions are before the Court: (1) the
Plaintiffs' motion for class certification of state law claims
under Federal Rule of Civil Procedure 23; and (2) the Plaintiffs'
motion to invalidate settlement agreement and release; and (3)
Century's motion for leave to file a surreply brief in opposition
to the Plaintiffs' motion for class certification. Plaintiffs don't
object to the surreply brief, so the court will accept the brief.
As for the other two motions, it is the second time that the
Plaintiffs filed both of them. The Court denied the motions the
first time without prejudice because both were missing important
information.
Judge Peterson (i) granted the Defendant's motion for leave to file
a surreply; (ii) denied the Plaintiffs' motion to invalidate the
settlement agreements and releases because the agreements by their
own terms do not apply to the claims in the case; and (ii) granted
the Plaintiffs' motion for class certification.
He certified the following three subclasses:
a. All hourly employees who worked overtime on a project in
Wisconsin not governed by prevailing wage laws between May 1, 2016,
and the present;
b. All hourly employees who worked overtime on a prevailing
wage project in Wisconsin between May 1, 2016 and the present; and
c. All hourly employees who worked overtime on a prevailing
wage project in Minnesota between May 9, 2016, and the present.
He certified the following claims for class treatment:
a. As for employees who worked on Wisconsin non-prevailing
wage jobs, Century Fence violated Wisconsin law by: (1) excluding
the portion of an employee's wages designated as cash fringe when
calculating the rate of overtime pay; (2) failing to use an
employee's average weekly wage rate when it calculated the overtime
rate.
b. As for employees who worked on Wisconsin prevailing wage
jobs, Century Fence violated Wisconsin law by: (1) excluding the
portion of an employee's wages designated as cash fringe when
calculating the rate of overtime pay; and (2) failing to pay
overtime rates when an employee worked more than 40 hours in a week
unless the employee had already worked more than 8 hours that day
or had already received 40 hours of straight time pay that week.
c. As for employees who worked on Minnesota prevailing wage
jobs, Century Fence violated Wisconsin law by failing to pay the
overtime rate when an employee worked more than 40 hours in a week
unless the employee had already worked more than 8 hours that day
or had already received 40 hours of straight time pay that week.
The Judge appointed Yingtao Ho as the class counsel.
The Court allowed Plaintiffs to file an amended class notice and a
proposed deadline for disseminating the notice. Century was also
given time to file an objection.
A full-text copy of the Court's March 11, 2020 Opinion & Order is
available at https://is.gd/VsPJCX from Leagle.com.
Michael Reilly, William Coulman, Jason Ramsdell & Jason
Gretschmann, Plaintiffs, represented by Yingtao Ho --
yh@previant.com -- The Previant Law Firm, S.C.
Century Fence Company, Defendant, represented by Michael J. Modl --
mmodl@axley.com -- Axley Brynelson, LLP.
CHASE BANK: Court Dismisses Riviello FDCPA Suit with Prejudice
--------------------------------------------------------------
In the case, ROSS RIVIELLO, Plaintiff, v. CHASE BANK USA, N.A., and
JOHN DOES 1-10, and CORPORATIONS X, Y, Z, Defendants, Case No.
3:19-CV-0510 (M.D. Pa.), Judge Robert D. Mariani of the U.S.
District Court for the Middle District of Pennsylvania granted the
Defendants Motion to Dismiss Plaintiff's Amended Complaint with
prejudice.
On Feb. 26, 2019, Plaintiff Riviello filed a putative class action
complaint in the Court of Common Pleas of Lackawanna County against
Defendants Chase Bank, John Does 1-10, and Corporations X, Y, Z.
for alleged violations of Pennsylvania's Fair Credit Extension
Uniformity Act ("FCEUA") and the federal Fair Debt Collection
Practices Act ("FDCPA"). On March 21, 2019, Defendant Chase Bank
removed the action to the Court.
Riviello is a citizen and resident of the Commonwealth of
Pennsylvania. Defendant Chase Bank is a corporate entity engaged
in, among other enterprises, collection of allegedly overdue credit
accounts. Defendants John Does 1-10 are unknown individuals or
entities who played a substantial role in the commission of the
acts. Defendants X, Y, and Z Corporations are unknown entities who
also played a substantial role in the commission of the acts.
The Plaintiff possesses consumer debts, used for "personal,
household or family purposes," that the Defendant was seeking to
collect. Four of his consumer accounts were reported as delinquent
and derogatory information was placed on his credit report by the
Defendant. When the Plaintiff discovered the derogatory
information on his credit report, he sent the Defendant letter(s)
both disputing the high balance of each account and requesting
copies of the original contracts.
The Defendant updated the Credit Reporting Agencies ("CRAs") on a
regular basis, which is reflected on the Plaintiff's consumer
credit report. It constructively, if not actively, updated the
information on his consumer report without either reinvestigating
said derogatory information or notating on the report that the
account was disputed.
The Defendant had actual and/or constructive notice that the
Plaintiff disputed the debts as he sent letters to the Defendant
indicating his dispute and requesting an accounting of the debts
and the original contracts. The Plaintiff never received a
response from the Defendant to his letters.
The derogatory information on the consumer credit report negatively
reflects upon the Plaintiff, his credit repayment history, his
financial responsibility as a debtor and his credit worthiness. As
a result, the Plaintiff suffered repeated disruption of the pursuit
of any business affairs affected by the false, unverified
information on his credit report as well as the emotional distress
suffered from being the target of the Defendant's collection
activity.
The Plaintiff seeks relief under Pennsylvania's Unfair Trade
Practices and Consumer Protection Law ("UTPCPL"), and seeks
monetary damages and injunctive relief on behalf of himself and a
putative class.
On March 28, 2019, the Defendant filed a Motion to Dismiss
Plaintiff's complaint. On April 11, 2019, the Plaintiff amended
his complaint eliminating the FDCPA claims, but still alleging the
Defendant violated the FCEUA when it reported the Plaintiff's
consumer credit report as delinquent, with derogatory information
therein.
On April 25, 2019, the Defendant again filed a Motion to Dismiss
Plaintiff's Amended Complaint with prejudice, which is now before
the Court. Defendant Chase Bank argues that the Plaintiff's
Amended Complaint should be dismissed for failure to state a claim
upon which relief can be granted. Its argument under the UTPCPL is
twofold: (1) the Plaintiff has not pleaded facts that he suffered
an ascertainable loss resulting from Defendant's fraudulent
actions, and (2) the Plaintiff has not pleaded facts that
demonstrate justifiable reliance on Defendant's actions or failure
to act.
Judge Mariani agrees. He finds that the Plaintiff failed to
provide any facts regarding what the business affairs are, in what
ways they were disrupted, or what specifically was lost because of
the disruption. Without alleging any facts that he lost money or
property that he would have had but for the Defendant's actions,
the Plaintiff's damages are speculative and unascertainable.
Furthermore, the Plaintiff's "emotional distress" is not cognizable
under the UTPCPL and is, therefore, not an ascertainable loss.
Additionally, his damages connected to retaining legal counsel are
not an ascertainable loss under the statute.
The Plaintiff has not met his burden to prove that he has lost any
money or property that he would have had but for the Defendant's
actions. Hence, the Plaintiff's Amended Complaint does not allege
an ascertainable loss as required for a UTPCPL or FCEUA claim.
Viewing all facts in the light most favorable to the Plaintiff and
drawing all reasonable inferences in his favor, the Judge finds
that there is no allegation of causation or justifiable reliance in
the Amended Complaint. Even if the disrupted pursuit of business
affairs was an ascertainable loss, the Plaintiff does not allege
how the Defendant's actions caused such a disruption. Therefore,
the Plaintiff's Amended Complaint does not allege causation or
justifiable reliance as is required by the UTPCPL and FCEUA.
The Judge deems the Plaintiff had the opportunity to amend his
Complaint and cure its deficiencies but did not do so. No further
leave will be granted.
Without alleging justifiable reliance on the Defendant's prohibited
statements or actions and without alleging an ascertainable loss as
a result of that reliance, the Plaintiff's complaint does not state
a claim upon which relief can be granted under the UTPCPL and the
FCEUA. The Plaintiff was on notice of these defects after the
Defendant's initial Motion to Dismiss, but sought fit not to
address them. The complaint must be dismissed without leave to
amend.
Therefore, for the reasons set forth in his Memorandum Opinion,
Judge Mariani granted the Defendant's Motion to Dismiss with
prejudice. A separate Order follow.
A full-text copy of the Court's March 4, 2020 Memorandum Opinion is
available at https://is.gd/bMl7W2 from Leagle.com.
Ross Riviello, Plaintiff, represented by Joseph T. Sucec.
Chase Bank USA, N.A., Defendant, represented by Jenny N. Perkins --
PERKINSJBALLARDSPAHR.COM -- Ballard Spahr, LLP & Andrew Carobus --
CAROBUSABALLARDSPAHR.COM -- Ballard Spahr LLP, pro hac vice.
CKF ENTERPRISES: Initial Approval of Deal in Ware FLSA Suit Denied
------------------------------------------------------------------
In the case, JULIA WARE, et al., Plaintiffs, v. CKF ENTERPRISES,
INC., et al., Defendants, Civil Action No. 5:19-183-DCR (E.D. Ky.),
Judge Danny C. Reeves of the U.S. District Court for the Eastern
District of Kentucky, Central Division, Lexington, denied without
prejudice Plaintiffs Ware and Ralph Edwards' unopposed motion for
preliminary approval of the proposed settlment agreement.
The case involves a proposed class action under Rule 23 of the
Federal Rules of Civil Procedure 23 and a Fair Labor Standards Act
("FLSA") collective action stemming from the alleged failure of
Defendants CKF and Crinda Francke to classify 632 consultants as
employees rather than independent contractors and pay them
appropriate overtime wages for hours worked in excess of 40 over
the course of specific workweeks. The parties reached a settlement
in principle on Dec. 23, 2019, and they have since drafted a
proposed settlement agreement.
Plaintiffs Ware and Edwards have now filed a motion requesting:
preliminary approval of the proposed agreement; preliminary
certification of the Rule 23 settlement class for the purposes of
settlement; certification of the Fair Labor Standards Act
collective; preliminary appointment of Ware and Edwards as class
representatives; preliminary approval of Berger Montague PC,
Lichten & Liss-Riordan, P.C., and Blanchard and Walker, PLLC as
class counsel; approval of notice to the settlement class pool; and
approval of their proposed schedule and procedure for the final
approval of the settlement agreement. CKF and Francke do not
oppose the motion.
On March 4, 2020, the Court directed the Plaintiffs to address
whether the pending motion seeks conditional or final approval of
the FLSA collective and whether the period to opt-in to the suit
for the purposes of FLSA had ended. The Plaintiffs responded two
days later. They explain that they seek conditional, rather than
final, certification of the FLSA collective. They intend to move
for final approval of the collective when they seek final approval
of the settlement and the Rule 23 class after dissemination of the
notice of settlement and the filing of claim forms. They also
state that they have employed an informal opt-in process.
Forty-six individuals have opted into the collective thus far by
submitting opt-in forms and more will be able to opt-in by filing
claim forms after the Court approves the settlement and the
Plaintiffs send claim forms to the settlement class pool with
notices of settlement. However, the informality of the opt-in
process and proposed course forward is concerning, given the terms
of the proposed agreement and opt-in and settlement claims
processes.
Judge Reeves finds that the proposed agreement is inconsistent with
the Plaintiffs' understanding that individuals who submit claim
forms after the Court initially approves the settlement and they
receive notices of the settlement ("post-approval filers") are
opt-in Plaintiffs. The post-approval filers who are not considered
opt-in Plaintiffs and will not submit the FLSA opt-in consent forms
under the proposed agreement are effectively not part of the
collective.
The Judge declines to preliminarily approve the proposed agreement
because it has unreasonable implications that stem from the
exclusion of post-approval filers from the collective. These
unreasonable implications could unexpectedly prejudice both the the
Defendants and post-approval filers at a later point in the case or
in related litigation.
However, Judge Reeves notes that while the proposed agreement
distinguishes between the opt-in Plaintiffs and the post-approval
filers, there does not appear to be any substantive reason why it
must do so. In this regard, he tends to agree with the Plaintiffs
that, given the informality of the opt-in process to this point,
consultants who wish to be a part of the lawsuit should be allowed
to continue to opt-in after the preliminary approval of the
settlement. Assuming that the parties intend that consultants be
allowed to opt-in after preliminary approval, any forthcoming
revised settlement proposal should remove the restriction that
opt-in plaintiffs file prior to preliminary approval and formalize
the post-approval opt-in process.
Because revision of the proposed agreement and post-approval claims
process is warranted and the motion's remaining requests are linked
to preliminary approval of the proposed agreement, Judge Reeves
will deny the motion in its entirety, without prejudice. However,
he notes that the parties have reached a settlement in principle
and will accordingly vacate the deadlines of the Court's Nov. 22,
2019 Scheduling Order.
Accordingly, for these reasons, Judge Reeves denied without
prejudice Ware and Edwards' unopposed motion. All deadlines
previously set regarding the Plaintiffs' claims against the
Defendants are vacated. The Plaintiffs will have until April 14,
2020, to renew their motion and tender a revised proposed
settlement agreement.
A full-text copy of the Court's March 11, 2020 Memorandum Opinion &
Order is available at https://is.gd/LKU3u8 from Leagle.com.
Julia Ware, individually and on behalf of all others similarly
situated & Ralph Edwards, individually and on behalf of all others
similarly situated, Plaintiffs, represented by Alexandra K. Piazza
-- apiazza@bm.net -- Berger & Montague, P.C., pro hac vice, David
M. Blanchard, Blanchard & Walker, PLLC, pro hac vice, Frances J.
Hollander, Blanchard & Walker, PLLC, pro hac vice, Harold L.
Lichten -- hlichten@llrlaw.com -- Lichten & Liss-Riordan, PC, pro
hac vice, Olena Savytska -- osavytska@llrlaw.com -- Lichten &
Liss-Riordan, PC, pro hac vice, Sarah R. Schalman-Bergen --
sschalman-bergen@bm.net -- Berger & Montague, P.C., pro hac vice &
Shanon J. Carson -- scarson@bm.net -- Berger & Montague, P.C., pro
hac vice.
CKF Enterprises, Inc., doing business as Optim Support, Inc.,
Defendant, represented by Jaron P. Blandford --
jblandford@mcbrayerfirm.com -- McBrayer PLLC, Jon A. Woodall --
jwoodall@mcbrayerfirm.com -- McBrayer, McGinnis, Leslie &
Kirkland,
PLLC & Cynthia L. Effinger -- ceffinger@mcbrayerfirm.com --
McBrayer PLLC.
Crinda Francke, Defendant, represented by Jaron P. Blandford,
McBrayer PLLC, Jon A. Woodall, McBrayer, McGinnis, Leslie &
Kirkland, PLLC & Cynthia L. Effinger, McBrayer PLLC.
CREDIT PROTECTION: Summ. Judgment Bid in McRobie FDCPA Suit Denied
------------------------------------------------------------------
In the case, ELIZABETH McROBIE, on behalf of herself and all others
similarly situated, Plaintiff, v. CREDIT PROTECTION ASSOCIATION,
Defendant, Case No. 5:18-cv-00566 (E.D. Pa.), Judge Joseph F.
Leeson, Jr. of the U.S. District Court for the Eastern District of
Pennsylvania (i) denied CPA's motion for summary judgment as to
both Counts I and II of the Amended Complaint, and (ii) granted
McRobie's motion for summary judgment as to Count II of the Amended
Complaint.
The case is a class action commenced for the alleged violation of
several provisions of the Fair Debt Collection Practices Act
("FDCPA"). Plaintiff McRobie, an alleged debtor, contends that a
mailer she received from Defendant Credit Protection Association
("CPA"), a debt-collection agency, violated the FDCPA both in the
mailer's form and substance.
CPA is a third-party collection agency that collects past-due
consumer debt on behalf of the telecommunications, tolling, and
utilities industries. McRobie is an adult individual who allegedly
incurred a financial obligation to MetroCast Communications in the
amount of $52.84. The alleged debt was sent by MetroCast to CPA
for collection.
Thereafter, CPA forwarded a request to National Data Services, Inc.
("NDSI"), a vendor with whom CPA contracts to generate and mail
communications attempting to collect debts like the communication
sent to McRobie. Under the vendor agreement between NDSI and CPA,
NDSI prints, folds, and mails debt-collection communications upon
the request of CPA, using templates created by CPA.
McRobie filed the initial Complaint in the action on Feb. 2, 2018,
in which she asserted a single cause of action for violation of 15
U.S.C. Section 1692f(7). CPA Answered the Complaint on April 9,
2018, following a stipulated extension of time to do so. The
counsel appeared before the Court for a Rule 16 conference on May
31, 2018, at which time a discovery schedule was put into place.
On Aug. 29, 2018, McRobie filed a motion to amend her Complaint
based upon information obtained during the course of discovery, and
several days thereafter, on Sept. 4, 2018, she filed a motion for
class certification. Both motions were opposed by CPA.
On Oct. 30, 2018, the Court issued an Opinion granting, in part,
McRobie's motion to amend her Complaint. The Court allowed her to
plead a claim of violation of 15 U.S.C. Section 1692f(8) (Count
II); however, the Court denied her attempt to plead a claim of
violation of 15 U.S.C. Section 1692e(9) (proposed Count III),
finding her proposed cause of action failed to state a viable claim
for relief.
On April 3, 2019, the Court granted McRobie's motion for class
certification, certifying a class consisting of all natural persons
residing in Pennsylvania, New Jersey and Delaware to whom Defendant
CPA mailed a postcard, substantially similar to the Postcard sent
to Plaintiff, in an attempt to collect a debt, where the postcard
was not returned as undeliverable. The Court only certified the
class as to Count II of the Amended Complaint.
Following extensions of time to complete discovery and file
dispositive motions, the instant summary judgment motions and
related papers were filed between Nov. 4, and Dec. 4, 2019.
McRobie moves for summary judgment only as to Count II of the
Amended Complaint, while CPA moves for summary judgment as to both
Counts I and II.
Judge Leeson concludes that McRobie is entitled to summary judgment
as to Count II of the Amended Complaint based upon the display of
the "client number" on the exterior of mailer she received from
CPA. Her motion for summary judgment is therefore granted, and
CPA's motion for summary judgment as to Count II is denied.
As to Count I of the Amended Complaint, there exists a genuine
dispute of material fact regarding (1) whether CPA, through NDSI,
in fact placed only a portion of its double card mailer into the
mail, thereby violating Section 1692f(7)'s prohibition, as well as
(2) if such violation occurred, whether CPA had procedures in place
reasonably adapted to avoid the error McRobie alleges, thereby
entitling it to the "bona fide error" defense under Section
1692k(c). Consequently, Count I of the Amended Complaint must be
put before a jury, and CPA's motion for summary judgment as to the
count is denied.
A separate Order follows the Opinion.
A full-text copy of the Court's March 11, 2020 Opinion is available
at https://is.gd/M6xsNM from Leagle.com.
EELIZABETH MCROBIE, ON BEHALF OF HERSELF AND ALL OTHERS SIMILARLY
SITUATED, Plaintiff, represented by JOSHUA MARKOVITS, LEMBERG LAW
LLC & SERGEI LEMBERG, LEMBERG LAW LLC.
CREDIT PROTECTION ASSOCIATION, Defendant, represented by JUSTIN M.
PENN -- jpenn@hinshawlaw.com -- HINSHAW & CULBERTSON LLP, ERICK V.
VIOLAGO -- eviolago@defensecounsel.com -- MINTZER SAROWITZ ZERIS
LEDVA & MEYERS, LLP, GEORGE W. VOKOLOS --
gvokolos@defensecounsel.com -- MINTZER SAROWITZ ZERIS LEDVA &
MEYERS & JASON G. WEHRLE -- jwehrle@defensecounsel.com -- MINTZER
SAROWITZ ZERIS LEDVA & MEYERS, LLP.
CRONOS GROUP: Faces Witte Securities Suit Over Share Price Drop
---------------------------------------------------------------
JILL WITTE, Individually and On Behalf of All Others Similarly
Situated v. CRONOS GROUP INC., MICHAEL GORENSTEIN, and JERRY F.
BARBATO, Case No. 2:20-cv-01310-ENV-SIL (E.D.N.Y., March 11, 2020),
seeks to recover damages caused by the Defendants' violations of
the federal securities laws and to pursue remedies under the
Securities Exchange Act of 1934 against the Company and certain of
its top officials concerning the sale of Cronos securities at
artificially inflated prices.
The case is a federal securities class action on behalf of a class
consisting of all persons other than Defendants, who purchased or
otherwise acquired Cronos securities between May 9, 2019, and March
2, 2020, both dates inclusive.
Throughout the Class Period, the Plaintiff alleges that the
Defendants made materially false and misleading statements
regarding the Company's business, operational and compliance
policies. Specifically, the Defendants made false and/or misleading
statements and/or failed to disclose that: (i) Cronos had engaged
in significant transactions for which its revenue recognition was
inappropriate; and (ii) the foregoing would foreseeably necessitate
reviews that would delay the Company's ability to timely file its
periodic reports.
On February 24, 2020, Cronos stated that it would delay its fourth
quarter and fiscal year 2019 earnings release and conference call,
previously scheduled for February 27, 2020. On this news, Cronos'
share price fell $0.78 per share, or 10.91%, to close at $6.37 on
February 24, 2020.
On March 2, 2020, after the market closed, Cronos disclosed that it
had requested a 15-day extension for filing a complete Annual
Report on Form 10-K with the Securities and Exchange Commission for
its fourth quarter and fiscal year 2019. Cronos attributed the
delay to a "review by the Audit Committee of the Company's Board of
Directors, with the assistance of outside counsel and forensic
accountants, of several bulk resin purchases and sales of products
through the wholesale channel and the appropriateness of the
recognition of revenue from those transactions." On this news,
Cronos' share price fell an additional $0.70 per share, or 11.63%,
to close at $5.32 per share on March 3, 2020.
As a result of the Defendants' wrongful acts and omissions, and the
precipitous decline in the market value of the Company's
securities, the Plaintiff and other Class members have suffered
significant losses and damages, according to the complaint.
The Plaintiff acquired Cronos securities at artificially inflated
prices during the Class Period and was damaged upon the revelation
of the alleged corrective disclosures.
Cronos, formerly known as PharmaCan Capital Corp., is a principal
investment firm. Cronos seeks to invest in companies either
licensed, or actively seeking a license, to produce medical
marijuana pursuant to Canada's Marihuana for Medical Purposes
Regulations. The Company typically invests in companies based in
Canada.[BN]
The Plaintiff is represented by:
Jeremy A. Lieberman, Esq.
J. Alexander Hood II, Esq.
Patrick V. Dahlstrom, Esq.
POMERANTZ LLP
600 Third Avenue, 20th Floor
New York, NY 10016
Telephone: (212) 661-1100
Facsimile: (212) 661-8665
E-mail: jalieberman@pomlaw.com
ahood@pomlaw.com
pdahlstrom@pomlaw.com
- and -
Peretz Bronstein, Esq.
BRONSTEIN, GEWIRTZ & GROSSMAN, LLC
60 East 42nd Street, Suite 4600
New York, NY 10165
Telephone: (212) 697-6484
Facsimile: (212) 697-7296
E-mail: peretz@bgandg.com
DEVA CONCEPTS: Orner Consumer Suit Challenges Hair Products' Sale
-----------------------------------------------------------------
Ashley Orner, Cassandra Flowers, and Lauren Wilder, individually
and on behalf of others similarly situated v. DEVA CONCEPTS, LLC,
d/b/a DevaCurl, Case No. 1:20-cv-02662-UA (S.D.N.Y., March 30,
2020), is brought on behalf of consumers, who have been damaged and
suffered injury caused by the false, fraudulent, unfair, deceptive,
and misleading practices of the Defendant relating to the sale of
its hair products.
The lawsuit is brought on behalf of consumers, who purchased the
Defendant's "DevaCurl No-Poo Original" non-lathering conditioning
cleanser (the "No-Poo Product"), DevaCurl One Condition Original
hair-conditioner, DevaCurl Light Defining Gel, DevaCurl Low-Poo
Original cleanser, DevaCurl Low-Poo Delight cleanser, DevaCurl
No-Poo Decadence cleanser, DevaCurl One Condition Delight
hair-conditioner, DevaCurl One Condition Decadence
hair-conditioner, Melt into Moisture Mask, Styling Cream, DevaCurl
Leave-In Decadence conditioner, Super Stretch Coconut Curl
Elongator, Wavemaker, and DevaCurl Ultra Defining Gel, which are
used for personal cosmetic purposes.
In 2002, the Defendant rose to prominence when it created and
developed the formula for the DevaCurl No-Poo Original, i.e., the
No-Poo Product, which is marketed as an "innovative new haircare
category" and a "game-changing alternative to traditional shampoo."
The Defendant further markets the No-Poo Product as a
"first-of-its-kind, no-suds conditioning cleanser" that is "free of
sulfates, parabens, and silicones" and that is used "to gently
cleanse curls without stripping the natural oils they need to look
healthy, bouncy and simply gorgeous."
Consumers pay a premium over the cost of traditional retail and
salon shampoos for the Defendant's Products, based upon the
representations above. However, despite the "DevaCurl phenomenon"
that has caused many curly haired consumers across the United
States to purchase and use the Products, use of the Products cause
scalp irritation, excessive shedding, hair loss, thinning,
breakage, and/or balding during normal use by consumers.
Indeed, thousands of consumers have reported their hair failing out
shortly after or during actual use of the Products. The Defendant
provides no warning about these consequences, and in fact makes
numerous assertions about the gentle and beneficial nature of the
Products. Disturbingly, the Plaintiffs contend, the Defendant
appears to be aware of the issues with its Products but conceals
and fails to disclose that the Products cause hair loss and
shedding, by intentionally blaming other risk factors such as
giving birth, stress, scalp buildup, dandruff, losing weight,
certain illnesses, and more.
The Plaintiffs allege that the Defendant conceals and fails to
disclose the defective nature of its Products by actively
misleading consumers into believing that the hair loss and shedding
caused by the Products is "normal" and "common," that even
excessive shedding of over 100 strands of hair per day is "common,"
and that shedding is not preventable. Despite notice and knowledge
of the problems caused by the Products, the Defendant has not
recalled the Products, has not provided any warnings of the known
risks, has denied that the Products cause the reported health
issues, and has not offered its customers any compensation for
their damages. Had the Plaintiffs and other Class members known
that Defendant's Products would cause hair loss, scalp irritation
and other problems, they would not have purchased the Products,
says the complaint.
The Plaintiffs purchased and used DevaCurl Products within the
relevant time period and experienced scalp irritation and hair
damage after using DevaCurl Products.
The Defendant formulates, manufactures, advertises, and sells the
Products to consumers throughout the United States, including in
the State of New York.[BN]
The Plaintiffs are represented by:
Brittany Weiner, Esq.
IMBESI LAW GROUP P.C.
1501 Broadway, Suite 1915
New York, NY 10036
Phone: (646) 767-2271
Facsimile: (212) 658-9177
- and -
Jeff Goldenberg, Esq.
GOLDENBERG SCHNEIDER, LPA
One West Fourth Street, 18th Floor
Cincinnati, OH 45202
Phone: 513-345-8291
Fax: 513-345-8294
Email: JGoldenberg@gs-legal.com
DONNELLEY FINANCIAL: Toretto Seeks Economic Loss Over Data Breach
-----------------------------------------------------------------
Phillip Toretto and Daniel King, individually and on behalf of all
others similarly situated v. DONNELLEY FINANCIAL SOLUTIONS, INC.
and MEDIANT COMMUNICATIONS, INC., Case No. 1:20-cv-02667-GHW
(S.D.N.Y., March 30, 2020), Case No. 3:20-cv-00288-MMH-JBT (M.D.
Fla., March 23, 2020), is brought against the Defendants to recover
economic loss and other actual harm suffered by the Plaintiffs due
to a data breach.
On April 1, 2019, hackers obtained unauthorized access to four of
Mediant's business e-mail accounts and exfiltrated the personal
information of its customers' investors. Mediant--a company that
touts itself as employing cutting-edge technology--is responsible
for allowing the breach to occur by failing to implement and
maintain reasonable safeguards and failing to comply with
industry-standard data security practices, contrary to the
representations made in Mediant's privacy policy, the Plaintiffs
assert. Likewise, Donnelley--a company that claims to be
"revolutionizing regulatory and financial technology--is
responsible for the Data Breach by partnering with Mediant, and
transferring Plaintiffs' and Class Members' most sensitive Personal
Information to it, when Donnelley knew or should have known Mediant
was unequipped to protect it.
As a result of the Defendants' failure to protect the information
in their possession, the Plaintiffs and Class Members have suffered
or are at a significant risk of identity theft, financial fraud,
and other identity-related fraud into the indefinite future, says
the complaint. Moreover, although Mediant discovered the breach the
same day that it occurred, it waited almost two months to notify
impacted shareholders, thereby, knowingly exposing vulnerable
individuals to further harm.
The Plaintiffs are individuals whose Personal Information was
compromised in the Data Breach.
Donnelley is a global risk and compliance solutions company
headquartered in Chicago, Illinois.[BN]
The Plaintiffs are represented by:
Andrew R. Frisch, Esq.
MORGAN & MORGAN, P.A.
8151 N. Pine Island Road, Suite 4000
Plantation, FL 33324
Phone: (954) WORKERS
Fax: (954) 327-3013
Email: AFrisch@forthepeople.com
- and -
Norman E. Siegel, Esq.
J. Austin Moore, Esq.
STUEVE SIEGEL HANSON LLP
460 Nichols Road, Suite 200
Kansas City, MO 64112
Phone: (816) 714-7100
Email: siegel@stuevesiegel.com
moore@stuevesiegel.com
- and -
Patricia N. Syverson, Esq.
BONNETT, FAIRBOURN, FRIEDMAN & BALINT, P.C.
600 W. Broadway, Suite 900
San Diego, CA 92101
Phone: (602) 274-1100
Email: psyverson@bffb.com
- and -
Elaine A. Ryan, Esq.
Carrie A. Laliberte, Esq.
BONNETT, FAIRBOURN, FRIEDMAN & BALINT, P.C.
2325 E. Camelback Rd., Suite 300
Phoenix, AZ 85016
Phone: (602) 274-1100
Email: eryan@bffb.com
claliberte@bffb.com
DORAL 7 CORP: Shelton Sues Over Unpaid Minimum and Overtime Wages
-----------------------------------------------------------------
Sharon Shelton, on behalf of herself and all others similarly
situated v. DORAL 7 CORP, INC. d/b/a PINK PONY and JAMES FULFORD,
individually, Case No. 1:20-cv-21372-XXXX (S.D. Fla., March 30,
2020), is brought against the Defendants to seek redress arise from
unpaid minimum and overtime wages under the Fair Labor Standards
Act of 1938, and the Florida Minimum Wage Act.
The Defendants have required and/or permitted the Plaintiff to work
in excess of 40 hours per week but refused to compensate her at the
applicable minimum wage and overtime rates, says the complaint. The
Defendants' conduct violates the FLSA, which requires non-exempt
employees, such as the Plaintiff, to be compensated for their
overtime work at a rate of one and one-half times their regular
rate of pay.
The Plaintiff was hired as a massage therapist at the Defendants'
adult entertainment club.
The Defendants own, operate, and control an adult entertainment
club in South Florida.[BN]
The Plaintiff is represented by:
Chad E. Levy, Esq.
David M. Cozad, Esq.
LAW OFFICES OF LEVY & LEVY, P.A.
1000 Sawgrass Corporate Parkway, Suite 588
Sunrise, FL 33323
Phone: (954) 763-5722
Facsimile: (954) 763-5723
Email: chad@levylevylaw.com
david@levylevylaw.com
DTE MIDSTREAM: Page Suit Seeks to Certify Class of Inspectors
-------------------------------------------------------------
In the class action lawsuit styled as BRANDON PAGE, individually
and on behalf of all others similarly situated v. DTE MIDSTREAM,
LLC, AND DTE MIDSTREAM APPALACHIA, LLC, Case No.
2:19-cv-01345-DSC-LPL (W.D. Pa), the Plaintiff asks the Court for
an order:
1. granting conditional certification of and authorize notice
be sent to:
"all Inspectors paid a day rate who performed work on
behalf of DTE at any time in the past 3 years";
2. approving the Notice and Consent forms;
3. authorizing a reminder notice;
4. authorizing Class Counsel to contact Putative Class
Members by telephone if their mailed or emailed Notice
forms return as undeliverable;
5. directing DTE to produce to Class Counsel the contact
information for each Putative Class Member within 10 days;
and
6. authorizing a 60-day notice period for the Putative Class
Members to join the case.
DTE Midstream specializes in natural gas gathering, transportation
and storage in the Midwest, Appalachia.[CC]
The Plaintiff is represented by:
William R. Liles, Esq.
Michael A. Josephson, Esq.
Andrew W. Dunlap, Esq.
William R. Liles, Esq.
JOSEPHSON DUNLAP
11 Greenway Plaza, Suite 3050
Houston, TX 77046
Telephone: 713-352-1100
Facsimile: 713-352-3300
E-mail: mjosephson@mybackwages.com
adunlap@mybackwages.com
tjones@mybackwages.com
- and -
Richard J. (Rex) Burch, Esq.
BRUCKNER BURCH PLLC
8 Greenway Plaza, Suite 1500
Houston, TX 77046
Telephone: 713-877-8788
Facsimile: 713-877-8065
E-mail: rburch@brucknerburch.com
- and -
Joshua P. Geist, Esq.
GOODRICH & GEIST PC
3634 California Ave.
Pittsburgh, PA 15212
Telephone: 412-766-1455
Facsimile: 412-766-0300
E-mail: josh@goodrichandgeist.com
ELI LILLY: Rochester Drug Sues Over Analog Insulin's Overcharges
----------------------------------------------------------------
Rochester Drug Co-Operative, Inc., on behalf of itself and all
others similarly situated v. ELI LILLY AND COMPANY, NOVO NORDISK
INC., SANOFI-AVENTIS U.S. LLC, CVS HEALTH CORPORATION, CAREMARKPCS
HEALTH LLC, CAREMARK LLC, CAREMARK RX LLC, EXPRESS SCRIPTS HOLDING
COMPANY, EXPRESS SCRIPTS INC., MEDCO HEALTH SOLUTIONS INC., UNITED
HEALTH GROUP INCORPORATED, UNITED HEALTHCARE SERVICES INC., OPTUM
INC., OPTUMRX HOLDINGS, LLC, and OPTUMRX INC., Case No.
2:20-cv-03426 (D.N.J. March 31, 2020), arises from the artificial
inflation of prices in the United States for analog insulin
medications due to alleged payment of bribes and kickbacks.
The lawsuit is brought on behalf a proposed class of direct
purchasers of analog insulin from the Defendant Drug Manufacturers
against those manufacturers and the Defendant pharmacy benefit
managers (PBMs) to recover overcharges due to the Defendant Drug
Manufacturers' artificial inflation of prices in the United States
for the analog Insulin medications at issue in this complaint,
which are Humalog, Basaglar, Fiasp, Novolog, Levemir, Tresiba,
Apidra, Lantus, and Toujeo ("Insulin" or "Insulin products").
This action arises out of schemes by the Defendant Drug
Manufacturers to maintain and/or increase the volume- and
dollar-amount of their Insulin sales through: (a) the payment of
bribes and kickbacks to the PBM Defendants in the form of
unprecedented rebates, fees, discounts, or other payments or
financial incentives in exchange for inclusion and/or favorable
placement of the Defendant Drug Manufacturers' respective Insulin
products on the Defendant PBMs' formularies; and (b) the
concealment and fraudulent statements in connection with the
scheme.
The Defendants' respective schemes had the purpose and/or effect of
eliminating a check on the Defendant Drug Manufacturers' ability to
aggressively increase their list prices, and were carried out by
aggressively raising their list prices. Consequently, both to
generate the bribe and kickback money they paid to Defendant PBMs,
and after the bribes and kickbacks were paid, the Defendant Drug
Manufacturers aggressively increased their Insulin list prices far
beyond what they would have (and could have) done absent the
scheme. The effect of the Defendant Drug Manufacturers' bribes and
kickbacks to the Defendant PBMs has been to corrupt the market
policing mechanisms that the Defendant PBMs would otherwise
perform, causing significant supra-competitive pricing inflation
and market-wide consumer harm.
The Plaintiff (and the other class members) are direct purchasers
of the Defendant Drug Manufacturers' Insulin products. They buy
directly from the Defendant Drug Manufacturers at the list price.
They were overcharged by Defendants' respective schemes because
absent the Defendants' conduct they would have paid lower list
prices for the Insulin products they purchased.
The Plaintiff, on behalf of itself and other direct purchasers,
seeks recovery of those overcharges. The Plaintiff purchased analog
Insulin directly from Defendant Drug Manufacturers and was injured
as a result of the Defendants' unlawful conduct.
Eli Lilly and Company is a corporation organized and existing under
the laws of the State of Indiana.[BN]
The Plaintiff is represented by:
David F. Sorensen, Esq.
Caitlin G. Coslett, Esq.
BERGER & MONTAGUE, P.C.
1818 Market Street, Suite 3600
Philadelphia, PA 19103
Phone: (215) 875-3000
Email: dsorensen@bm.net
ccoslett@bm.net
- and -
Peter Kohn, Esq.
Joseph T. Lukens, Esq.
FARUQI & FARUQI, LLP
One Penn Center, Suite 1550
1617 John F. Kennedy Blvd.
Philadelphia, PA 19103
Phone: (215) 277-5770
Email: pkohn@faruqilaw.com
jlukens@faruqilaw.com
- and -
Bruce E. Gerstein, Esq.
Noah Silverman, Esq.
GARWIN GERSTEIN & FISHER LLP
88 Pine Street, 10th Floor
New York, NY 10005
Phone: (212) 398-0055
Email: bgerstein@garwingerstein.com
nsilverman@garwingerstein.com
- and -
David Golub, Esq.
Steven Bloch, Esq.
SILVER GOLUB & TEITELL LLP
184 Atlantic Street
Stamford, CT 06901
Phone: (203) 325-4491
Email: dgolub@sgtlaw.com
sbloch@sgtlaw.com
- and -
Stuart E. Des Roches, Esq.
ODOM & DES ROCHES, LLC
650 Poydras Street, Suite 2020
New Orleans, LA 70130
Phone: (504) 522-0077
Email: stuart@odrlaw.com
- and -
Russ Chorush, Esq.
HEIM PAYNE & CHORUSH, LLP
1111 Bagby, Suite 2100
Houston, TX 77002
Phone: (713) 221-2000
Email: rchorush@hpcllp.com
- and -
Susan Segura, Esq.
David C. Raphael, Jr., Esq.
SMITH SEGURA RAPHAEL & LEGER, LLP
221 Ansley Blvd.
Alexandria, LA 71303
Phone: (318) 445-4480
Email: ssegura@ssrllp.com
draphael@ssrllp.com
EQUITABLE ACCEPTANCE: Bid to Dismiss RICO Claims in Williams Denied
-------------------------------------------------------------------
In the case, VANESSA WILLIAMS and KORY TURNER, individually and on
behalf of all persons similarly situated, Plaintiffs, v. EQUITABLE
ACCEPTANCE CORPORATION, SLF CENTER, LLC, INTEGRA STUDENT SOLUTIONS,
LLC, and DOES 1-41, Defendants, Case No. 18 Civ. 7537 (NRB) (S.D.
N.Y.), Judge Naomi Reice Buchwald of the U.S. District Court for
the Southern District of New York denied Defendant EAC's motion to
dismiss the Plaintiffs' Racketeer Influenced and Corrupt
Organizations Act ("RICO") claims against it.
The Plaintiffs bring the action against the Defendants, asserting,
inter alia, a claim under the RICO, codified at 18 U.S.C. Section
1962(c), and a civil RICO conspiracy claim under 18 U.S.C. Section
1962(d). The Plaintiffs allege that the Defendants violated those
statutes by operating a scheme to fraudulently induce individuals
with federal student loan debts to purchase certain services from
dealers -- including SLF and Integra -- and to finance that
purchase with a loan from Defendant EAC.
The litigation involves certain "services" purportedly provided by
the Defendants in connection with the student loan forgiveness
programs run by the United States Department of Education ("DOE").
Each federal student loan borrower is assigned to one of nine
federal student loan servicers. The Borrower directs any inquiry
and makes payments for her student loans to the servicer. The
statutes governing federal student loan programs provide qualifying
Borrowers a set of rights to have their repayment obligations
adjusted in certain manners. The Plaintiffs allege that the
Defendants have constructed a scheme to defraud those with federal
student loan debts.
The Plaintiffs commenced the action by filing a class action
complaint on Aug. 17, 2018. Pursuant to a consensual stipulation
of briefing schedule, Defendant EAC moved to dismiss the RICO
claims in the complaint on Nov. 19, 2018. As contemplated by the
parties in the stipulation, the Plaintiffs filed an amended
complaint on Jan. 15, 2019 instead of opposing the EAC's motion.
Subsequently, EAC moved again to dismiss the RICO claims in the
Amended Complaint pursuant to Federal Rule of Civil Procedure
12(b)(6). The Court heard oral argument on that motion on Dec. 9,
2019.
EAC challenges the Plaintiffs' pleading of RICO claim under 18
U.S.C. Section 1962(c) on the grounds that the Plaintiffs have
failed to adequately plead (1) ECA's commission of two or more
predicate acts and (2) continuity requisite for pleading a "pattern
of racketeering activity."
Judge Buchwald finds that the Amended Complaint contains
allegations detailing how the scheme was effectuated as to the
Named Plaintiffs. Those allegations establish at least two
instances of wire fraud violations under 18 U.S.C. Section 1343 by
EAC. Therefore, the Plaintiffs have adequately pled the predicate
acts requisite for stating a claim under 18 U.S.C. Section
1962(c).
EAC challenges the Plaintiffs' pleading of predicate acts with two
arguments: (1) the Plaintiffs cannot rely on the alleged
misstatements by the Dealers as the predicates in pleading mail and
wire fraud violations because the agreements between Dealers and
Borrowers contain express disclaimers as to those misstatements,
and (2) the Plaintiffs fails to plead any material misstatement or
omission made by EAC itself.
Judge Buchwald concludes that neither argument is meritorious.
Although Weaver was a criminal law case, the Supreme Court's
decision in Bridge to import Neder into civil RICO context suggests
that doctrines involving the mail and wire fraud statutes, at least
with respect to the reliance element, would apply even when mail
and wire fraud violations are pled as predicate acts in a civil
RICO case. Therefore, she conclude that Weaver is controlling and
rejects EAC's argument based on a contractual disclaimer. And, the
absence of any allegation that EAC itself made a misrepresentation
does not render the Plaintiffs' pleading of a RICO claim under 18
U.S.C. Section 1962(c) defective.
Finally, EAC argues that Plaintiffs have failed to adequately plead
the continuity requisite for establishing that the alleged
predicate acts constitute a "pattern of racketeering activity."
Judge Buchwald holds that the alleged predicate acts, as conceded
by EAC, spanned at least 17 months. Moreover, the Amended
Complaint, especially Exhibit A (Excerpts of consumer complaints
about EAC filed with Better Business Bureau and Consumer Financial
Protection Bureau), contains allegations of numerous individuals
other than the Named Plaintiffs complaining about their
transactions with EAC that are consistent with the scheme alleged
by the Plaintiffs.
Given these allegations, the Amended Complaint contains sufficient
allegations that reveal "the threat of continuity," and sufficient
support for the proposition that EAC has been trying to continue
the alleged scheme with respect to individuals in addition to the
Named Plaintiffs. Therefore, the Plaintiffs have adequately pled a
pattern of racketeering activities by alleging sufficient facts to
establish open-ended continuity.
For the foregoing reasons, Judge Buchwald denied Defendant EAC's
motion to dismiss the Plaintiffs' RICO claim under 18 U.S.C.
Section 1962(c). Because EAC moves to dismiss the Plaintiffs' RICO
conspiracy claim under 18 U.S.C. Section 1962(d) solely based on
the Plaintiffs' failure to adequately plead a substantive RICO
claim under 18 U.S.C. Section 1962(c), EAC's motion as to the RICO
conspiracy claim is also denied. Defendant EAC will answer the
Amended Complaint within 30 days. The Order resolves ECF Entry No.
37.
A full-text copy of the Court's March 11, 2020 Memorandum & Order
is available at https://is.gd/W5M5qh from Leagle.com.
Vanessa Williams, Individually and on behalf of all persons
similarly situated & Kory Turner, Individually and on behalf of all
persons similarly situated, Plaintiffs, represented by Danielle
Feldman Tarantolo, New York Legal Assistance Group, Jessica Grace
Ranucci & Jonathan Bacon Oblak , Quinn Emanuel.
Equitable Acceptance Corporation, Defendant, represented by Avery
Daniel Samet -- asamet@aminillc.com -- Amini LLC, Bijan Amini --
bamini@aminillc.com -- Amini LLC, Gregory P. Joseph --
gjoseph@jha.com -- Joseph Hage Aaronson LLC, Gila Sara Singer --
gsinger@jha.com -- Joseph Hage Aaronson LLC & Sandra M. Lipsman --
slipsman@jha.com -- Joseph Hage Aaronson LLC.
EQUITABLE HOLDINGS: Brach Family Foundation's Suit Still Ongoing
----------------------------------------------------------------
Equitable Holdings, Inc. said in its Form 10-K report filed with
the U.S. Securities and Exchange Commission on February 27, 2020,
for the fiscal year ended December 31, 2019, that the company
continues to defend a class action suit entitled, Brach Family
Foundation, Inc. v. AXA Equitable Life Insurance Company.
On January 14, 2020, the company announced its plans to rebrand as
"Equitable" and to discontinue the use of the "AXA" brand. In
connection with this rebranding, the company removed "AXA" from its
legal entity name, which is now Equitable Holdings, Inc.
In February 2016, a lawsuit was filed in the United States District
Court for the Southern District of New York entitled Brach Family
Foundation, Inc. v. AXA Equitable Life Insurance Company.
This lawsuit is a putative class action brought on behalf of all
owners of universal life ("UL") policies subject to Equitable
Life's COI rate increase. In early 2016, Equitable Life raised COI
rates for certain UL policies issued between 2004 and 2007, which
had both issue ages 70 and above and a current face value amount of
$1 million and above.
A second putative class action was filed in Arizona in 2017 and
consolidated with the Brach matter. The current consolidated
amended class action complaint alleges the following claims: breach
of contract; misrepresentations by Equitable Life in violation of
Section 4226 of the New York Insurance Law; violations of New York
General Business Law Section 349; and violations of the California
Unfair Competition Law, and the California Elder Abuse Statute.
Plaintiffs seek: (a) compensatory damages, costs, and, pre- and
post-judgment interest; (b) with respect to their claim concerning
Section 4226, a penalty in the amount of premiums paid by the
plaintiffs and the putative class; and (c) injunctive relief and
attorneys' fees in connection with their statutory claims.
Five other federal actions challenging the COI rate increase are
also pending against Equitable Life and have been coordinated with
the Brach action for the purposes of pre-trial activities.
They contain allegations similar to those in the Brach action as
well as additional allegations for violations of various states'
consumer protection statutes and common law fraud. Three actions
are also pending against Equitable Life in New York state court.
Equitable Life is vigorously defending each of these matters.
No further updates were provided in the Company's SEC report.
Equitable Holdings, Inc. operates as a diversified financial
services company worldwide. It operates through four segments:
Individual Retirement, Group Retirement, Investment Management and
Research, and Protection Solutions. The company was founded in 1859
and is based in New York, New York. AXA Equitable Holdings, Inc. is
a subsidiary of AXA S.A.
On January 14, 2020, the company announced its plans to rebrand as
"Equitable" and to discontinue the use of the "AXA" brand. In
connection with this rebranding, the company removed "AXA" from its
legal entity name, which is now Equitable Holdings, Inc.
EQUITABLE HOLDINGS: Continues to Defend O'Donnell Class Action
--------------------------------------------------------------
Equitable Holdings, Inc. said in its Form 10-K report filed with
the U.S. Securities and Exchange Commission on February 27, 2020,
for the fiscal year ended December 31, 2019, that the company
continues to defend a class action suit entitled, Richard T.
O'Donnell, on behalf of himself and all others similarly situated
v. AXA Equitable Life Insurance Company.
In August 2015, a lawsuit was filed in Connecticut Superior Court,
Judicial Division of New Haven entitled Richard T. O'Donnell, on
behalf of himself and all others similarly situated v. AXA
Equitable Life Insurance Company.
This lawsuit is a putative class action on behalf of all persons
who purchased variable annuities from Equitable Life, which were
subsequently subjected to the volatility management strategy and
who suffered injury as a result thereof.
Plaintiff asserts a claim for breach of contract alleging that
Equitable Life implemented the volatility management strategy in
violation of applicable law.
Plaintiff seeks an award of damages individually and on a classwide
basis, and costs and disbursements, including attorneys' fees,
expert witness fees and other costs.
In November 2015, the Connecticut Federal District Court
transferred this action to the United States District Court for the
Southern District of New York.
In March 2017, the Southern District of New York granted Equitable
Life's motion to dismiss the complaint. In April 2017, the
plaintiff filed a notice of appeal. In April 2018, the United
States Court of Appeals for the Second Circuit reversed the trial
court's decision with instructions to remand the case to
Connecticut state court.
In September 2018, the Second Circuit issued its mandate, following
Equitable Life's notification to the court that it would not file a
petition for writ of certiorari. The case was transferred in
December 2018 and is pending in Connecticut Superior Court,
Judicial District of Stamford.
Equitable said, "We are vigorously defending this matter."
No further updates were provided in the Company's SEC report.
Equitable Holdings, Inc. operates as a diversified financial
services company worldwide. It operates through four segments:
Individual Retirement, Group Retirement, Investment Management and
Research, and Protection Solutions. The company was founded in 1859
and is based in New York, New York. AXA Equitable Holdings, Inc. is
a subsidiary of AXA S.A.
On January 14, 2020, the company announced its plans to rebrand as
"Equitable" and to discontinue the use of the "AXA" brand. In
connection with this rebranding, the company removed "AXA" from its
legal entity name, which is now Equitable Holdings, Inc.
FIRST VEHICLE: Galvan May Amend Labor Class Complaint
-----------------------------------------------------
In the case, JUSTIN GALVAN, Plaintiff, v. FIRST VEHICLE SERVICES,
INC., Defendant, Civil Action No. 19-cv-02143-PAB-KMT (D. Colo.),
Judge Philip A. Brimmer of the U.S. District Court for the District
of Colorado (i) granted the Plaintiff's Motion to Amend the
Complaint in Response to Defendant's Motion to Dismiss; and (ii)
denied as moot the Defendant's Motion to Dismiss.
On June 28, 2018, Plaintiff Galvan was working as a mechanic in
Frisco, Colorado for Defendant First Vehicle. Because the basement
of the Defendant's maintenance shop gets hot and has little air
flow, the Plaintiff went upstairs and opened a garage door directly
above his workspace to cool off his area. The Defendant does not
have a workplace policy regarding whether the garage door should be
open or closed during work hours.
When Peter Palliardi, the Plaintiff's co-worker, came in for his
shift, he shut the garage door. When the Plaintiff noticed that
the door had been shut, he went upstairs and opened the door again.
This resulted in a verbal altercation between the Plaintiff and
Mr. Palliardi. The Plaintiff explained to Mr. Palliardi that,
without air conditioning, the basement becomes too hot, while Mr.
Palliardi stated that the wind coming in through the open garage
door was irritating his eyes.
After Mr. Palliardi re-shut the garage door and the Plaintiff
opened it again, Mr. Palliardi attempted to once again close the
garage door. However, because the Plaintiff was standing in the
doorway, the garage door could not close. Mr. Palliardi shoved the
Plaintiff to remove him from the doorway, stood within an inch of
the Plaintiff's face, and spat on the Plaintiff. After the
Plaintiff pushed Mr. Palliardi away, Mr. Palliardi re-approached
him and swung both fists, punching Plaintiff in the eyes. While
the Plaintiff tried unsuccessfully to push Mr. Palliardi away, Mr.
Palliardi punched him approximately 20 times. The Plaintiff's
attempts to punch Mr. Palliardi were unsuccessful, except for the
last, which caused Mr. Palliardi to fall to the ground. The
Plaintiff then retreated.
The Plaintiff informed his manager, Kevin Yoder, about the
incident. Mr. Yoder told both men to leave. The Plaintiff returned
to work the next day and completed his scheduled shift. On July 2,
2018, Mr. Yoder instructed the Plaintiff not to return to work
until defendant had received a final report from the Summit County
Sheriff's Department, which had begun an investigation into the
incident. The Sheriff's Department finalized its report on July 3.
It determined that Plaintiff had acted out of self-defense and
found that Mr. Palliardi was the primary aggressor.
Mr. Yoder informed the Plaintiff on July 6 that the Defendant was
terminating his employment because of the June 28 assault. In the
official termination letter dated July 31, 2018, the Defendant
stated that the Plaintiff had violated the Defendant's zero
tolerance policy, which prohibits acts of violence, threats of
violence, or intimidation, to include: hitting, striking, pushing,
or kicking.
On July 2, 2019, the Plaintiff sued Defendant in the District Court
of Teller County, Colorado for wrongful termination in violation of
public policy and negligent supervision. The Defendant removed the
action to federal court on July 26, 2019. On Aug. 2, 2019, the
Defendant filed a motion to dismiss, arguing that the Plaintiff's
termination claim failed to state a claim upon which relief could
be granted, and that his negligent supervision claim is preempted
by the Colorado Workers' Compensation Act ("CWCA").
In lieu of responding to the motion, the Plaintiff filed a motion
to amend the complaint. He argues that the Court should grant him
leave to amend his complaint in order to include additional factual
allegations meant to clarify, explain, and supplement the initial
allegations. The Defendant opposes the request, arguing that an
amendment would be futile because the Plaintiff's belated addition
of facts cannot remedy the deficiencies in his Complaint.
Judge Brimmer concludes that the Plaintiff's proposed amended
complaint contains the same two claims as his original complaint,
and the Defendant concedes that the proposed amended complaint adds
only additional facts, not legal theories. He finds that the
addition of potentially clarifying facts does not unfairly affect
the Defendant's ability to defend the lawsuit. And while the
Defendant has already filed a motion to dismiss, any prejudice to
it is slight because it will be able to file substantially similar
briefing in response to the amended complaint.
As stated, Judge Brimmer believes it most appropriate to address
the Defendant's legal arguments in view of the additional facts the
Plaintiff has alleged in his amended complaint once such arguments
have been fully briefed by the parties. Because the Defendant has
not demonstrated that it will be prejudiced by allowing the
Plaintiff to amend his complaint, the Judge will grant the
Plaintiff's motion.
For these reasons, Judge Brimmer granted the Plaintiff's Motion to
Amend the Complaint in Response to Defendant's Motion to Dismiss.
The Clerk of Court is directed to enter Docket No. 15-1 as the
Plaintiff's First Amended Complaint. The Judge denied as moot the
Defendant's Motion to Dismiss.
A full-text copy of the Court's March 11, 2020 Order is available
at https://is.gd/kaaC6x from Leagle.com.
Justin Galvan, Individually, Plaintiff, represented by Bradley John
Sherman, Cornish & Dell'Olio, P.C.
First Vehicle Services, Inc., Defendant, represented by Laurie J.
Rust -- lrust@littler.com -- Littler Mendelson PC & Michelle Lynn
Gomez -- mgomez@littler.com -- Littler Mendelson PC.
FLUENT INC: Thompson Sues Over Unsolicited Telemarketing Calls
--------------------------------------------------------------
Brian Thompson and Angela Thompson, individually and on behalf of
all others similarly situated v. FLUENT, INC., and REWARD ZONE USA,
LLC, Case No. 1:20-cv-02680 (S.D.N.Y., March 31, 2020), accuses the
Defendants of violating the Telephone Consumer Protection Act
relating to their making of unsolicited telemarketing phone calls.
The lawsuit is brought under the TCPA against the Defendant
alleging violations of the prohibition on the use of automatic
telephone dialing systems ("ATDS") without the prior consent of the
called party and violations of the prohibition on making
telemarketing phone calls to phone numbers listed on the National
Do Not Call Registry without the prior consent of the called
party.
The Defendants sent the unsolicited robotext to the Plaintiffs'
cellular telephone for the purpose of sending the Plaintiffs spam
advertisements and promotional offers, via text messages. The
Plaintiffs never consented to receive phone calls or text messages
from the Defendants. The Plaintiffs never provided their telephone
number to the Defendants, says the complaint.
The Plaintiffs are natural persons with a principal place of
residence located in Cuyahoga County, Ohio.
Fluent, Inc. is a Delaware corporation with its principal place of
business in New York.[BN]
The Plaintiffs are represented by:
Javier L. Merino, Esq.
DANN LAW
372 Kinderkamack Road, Suite 5
Westwood, NJ 07675
Phone: (216) 373-0539
Fax: (216) 373-0536
Email: notices@dannlaw.com
FOREST RECOVERY: Ruffin Sues in M.D. Florida Over FDCPA Violation
-----------------------------------------------------------------
A class action lawsuit has been filed against Forest Recovery
Services LLC, et al. The case is styled as Gusie Ruffin,
individually and on behalf of all similarly situated v. Forest
Recovery Services LLC, John Does 1-25, Case No.
5:20-cv-00124-JSM-PRL (M.D. Fla., March 30, 2020).
The Plaintiff filed the case under the Fair Debt Collection
Practices Act.
Forest Recovery Services, LLC (FRS) is a third-party collection
agency based in Illinois.[BN]
The Plaintiff is represented by:
Justin E. Zeig, Esq.
ZEIG LAW FIRM, LLC
3475 Sheridan Street, Suite 310
Hollywood, FL 33024
Phone: (754) 217-3084
Fax: (754) 217-3084
Email: justin@zeiglawfirm.com
GANNETT CO: Class Certification Sought in Aronson Lawsuit
---------------------------------------------------------
In the class action lawsuit styled as VICKY ARONSON, individually
and on behalf of all others similarly situated v. GANNETT CO.,
INC., a Delaware corporation with its principal place of business
in Virginia, LDC DISTRIBUTION, LLC, a California limited liability
company, LOUIS COX, an individual, and DOES 1 to 100, inclusive
Case No. 5:19-cv-00996-PSG-JEM (C.D. Cal.), the Plaintiff will move
the Court on June 1, 2020, for an order:
1. certifying this case as a class action for the following
Class:
"all California residents who are or were delivered
newspapers on behalf of GPS, and/or their predecessors or
merged entities in California, who signed independent
contractor agreements with Gannett Publishing Services,
LLC, LDC Distribution, LLC, and/or their predecessors or
merged entities in interest, and who were classified as
independent contractors during from August 24, 2014
through the date notice is mailed to the Class";
2. appointing Plaintiff's counsel, Potter Handy, LLP to serve
as counsel to the class; and
3. authorizing notice to the class of the pending action and
its members' right to opt-out.
Gannett is an American mass media holding company headquartered in
McLean, Virginia in Greater Washington DC.[CC]
Counsel for the Plaintiff, the Aggrieved Employees and the Class
are:
Mark D. Potter, Esq.
James M. Treglio, Esq.
POTTER HANDY LLP
8033 Linda Vista Road, Suite 200
San Diego, CA 92111
Telephone: (858) 375-7385
Facsimile: (888) 422-5191
E-mail: mark@potterhandy.com
jimt@potterhandy.com
GENENTECH INC: Williamson Remanded to San Mateo County Super. Court
-------------------------------------------------------------------
In the case, ANDREW WILLIAMSON, Plaintiff, v. GENENTECH, INC., et
al., Defendants, Case No. 19-cv-01840-JSC (N.D. Cal.), Magistrate
Judge Jacqueline Scott Corley of the U.S. District Court for the
Northern District of California remanded the action to the San
Mateo County Superior Court.
Williamson brings the action on behalf of himself and other
similarly situated individuals alleging that Genentech's sale of
prescription drugs in single-dose vials results in waste of
medication and violates California's Unfair Competition Law,
California Business and Professions Code Section 17200 (the "UCL").
Genentech is a biotechnology company based in California. Among
its FDA-approved medications are four that are at issue in the
action: Avastin (for treatment of colorectal and other cancers),
Rituxan (for treatment of non-Hodgkin's Lymphoma and other
conditions), Kadeyla (for treatment of breast cancer), and Xolair
(for treatment of asthma). These medications are all sold in
single use vials that are available in the United States in two
sizes in the case of Avastin, Rituxan, and Kadeyla, and one size in
the case of Xolair.
In January of 2016, the Plaintiff was treated with Rituxan for
Follicular Lymphoma. Over the next five months, he received six
772.5 mg doses of Rituxan. On each occasion, the hospital used
either eight 100 mg vials or one 500 mg vial and three 100 mg
vials. The total charge for the treatment was $34,189.33.
From September 2016 through August 2017, the Plaintiff was given a
second course of treatment, receiving a single 780 mg dose each
time. For the second round of treatment, the hospital used one 500
mg vial and three 100 mg vials. The charge for the first four
administrations of the treatment was $37,464.99 per treatment and
the charge for the final treatment was $43,230.99.
In November 2017 and in March 2018, the Plaintiff had a third
course of treatment where he received doses of 800 mg using one 500
mg vial and three 100 mg vials for a total cost of $43,230.99. For
all but the last two treatments, because he received a dose of less
than 800 mg and Rituxan was only sold in 100 mg or 500 mg vials,
20-27.5 mg of Rituxan were discarded as waste. For each of these
treatments, some or all of the hospital charges were paid by the
Plaintiff's insurer; however, he paid $231.15 out-of-pocket for his
March 2, 2017 treatment.
Based on these allegations, the Plaintiff brings a single claim for
violation of California's Unfair Competition Law. In particular,
the Plaintiff alleges as unfair Genentech's practices of selling
drugs in quantities that inherently lead to wasted amounts of
medicine, causing substantial injury to him and the Class who are
forced to purchase large amounts of medications that they do not
and cannot use.
Genentech's motion to dismiss the complaint based on federal
impossibility preemption, or alternatively, based on California's
judicial-abstention doctrine or for failure to state a claim came
before the Court for a hearing on Nov. 21, 2019. At the hearing,
the Court noted that before addressing Genentech's motion, it must
ensure that it has Article III standing to hear the action which
was removed from the Superior Court for San Mateo County under the
Class Action Fairness Act. The parties have since submitted
supplemental briefing on the issue.
Magistrate Judge Corley held an oral argument on Nov. 21, 2019.
She finds that that the Plaintiff did not suffer any injury and
thus does not have Article III standing. His lament that such a
holding will allow Genentech to receive a windfall is incorrect.
The Magistrate Judge is not holding that no one has standing to
challenge Genentech's conduct, only that the Plaintiff does not
have standing. A patient who could actually allege that
Genentech's practices caused him to personally pay more money, or
the insurance company that paid for the medication, would likely
have Article III standing. It is just that Mr. Williamson does
not.
The Magistrate Judge concludes that the Plaintiff lacks Article III
standing to bring his UCL claim in federal court. Having concluded
that it lacks subject matter jurisdiction, the Magistrate Judge
leaves the question of whether the Plaintiff has statutory standing
under the UCL for the state court on remand should Mr. Williamson
decide to pursue his claim.
For the reasons she stated, Magistrate Judge Corley held that the
Court lacks subject matter jurisdiction over the Plaintiff's claim
and remanded the action to the San Mateo County Superior Court.
A full-text copy of the Court's March 18, 2020 Order is available
at https://is.gd/bWh3wc from Leagle.com.
Andrew Williamson, on behalf of himself and all others similarly
situated, Plaintiff, represented by Alfredo Torrijos, Arias
Sanguinetti Wang & Torrijos LLP, Elise Rochelle Sanguinetti, Arias
Sanguinetti Wang & Torrijos, LLP, Mike M. Arias, Arias Sanguinetti
Wang & Torrijos LLP, Richard S. Cornfeld, Law Office of Richard S.
Cornfeld, LLC, pro hac vice, Brian Wolfman, pro hac vice, Daniel
Scott Levy, Law Office of Richard S. Cornfeld, LLC, pro hac vice &
Kevin Michael Carnie, Jr., The Simon Law Firm, P.C., pro hac vice.
Genentech, Inc. & Genentech USA, Inc., Defendants, represented by
James P. Muehlberger, Shook, Hardy & Bacon, LLP, Joan Alexis
Rabutaso Camagong, Shook Hardy & Bacon L.L.P. & Alicia J. Donahue
-- adonahue@shb.com -- Shook Hardy & Bacon L.L.P..
GEORGE'S INC: Eighth Circuit Reverses Dismissal of Cook ADA Suit
----------------------------------------------------------------
In the case, Jerry Cook, on behalf of himself and all others
similar situated, Plaintiff-Appellant, v. George's, Inc.,
Defendant-Appellant. Glen Balch, Defendant, Case No. 18-3294 (8th
Cir.), the U.S. Court of Appeals for the Eighth Circuit reversed
the district court's grant of George's motion to dismiss, and
denial of Cook's motion for leave to amend.
Cook has mental and physical impairments that make it difficult for
him to communicate with others, process complex information, and
lift heavy objects. At some time prior to the incident leading to
this suit, Cook worked for Defendant George's, a producer of
poultry and other food products. Cook was able to do his job with
reasonable accommodations for his mental and physical limitations.
Cook stopped working at George's at some time prior to October
2015. Based on the term of employment, George's created a human
resources ("HR) file on Cook. The file assigned Cook the code
"333," which made him "not eligible for rehire," because of a known
or perceived medical condition.
Around October 2015, Cook applied to be rehired by George's.
Because of the code "333" in his file, George's management
instructed the HR team that they could interview Cook but could
"not hire him no matter what." On the day of his interview, Cook
did not show up. He came to George's the next day and asked to
reschedule the interview. Upon instruction from management, the HR
team refused to reschedule Cook's interview despite having
rescheduled interviews for other applicants who missed their
interviews.
Cook timely filed a charge of discrimination with the Equal
Employment Opportunity Commission and received a right-to-sue
letter. He filed a class-action complaint in the Western District
of Arkansas alleging George's had a policy of refusing to consider
code "333" applicants because of an actual, perceived, or recorded
disability. The complaint also alleged a count of retaliation.
George's did not file an answer.
George's moved to dismiss the complaint for failure to state a
claim, arguing Cook failed to establish that he had a disability
under the ADA and failed to allege a causal link between any
disability and George's decision to not rehire Cook. Cook filed a
brief in opposition and moved to amend his complaint. The proposed
amended complaint included additional facts about his mental and
physical impairments.
The district court granted George's motion to dismiss. The
district court assumed for the sake of argument that Cook stated
sufficient facts to show he was disabled under the Americans with
Disabilities Act. Even so, the district court found no facts in
the Complaint that could allow a factfinder to conclude that Cook
was denied the job because of discriminatory animus because
obviously, failing to attend a job interview is a legitimate,
non-discriminatory reason to justify an employer's refusal to
extend a job offer. The district court did not analyze the
implications of Cook's code "333" allegations or the allegation
that George's management said to "not hire Cook no matter what."
The district court also denied Cook leave to amend, finding it to
be futile.
The primary issue in the discrimination-in-hiring action is whether
Cook's complaint states a claim under the ADA. The district court
granted the Defendant's motion to dismiss because Cook failed to
allege the elements of a prima facie case of discrimination. Cook
argues the district court erred in dismissing his discrimination
claim based on the sufficiency of his allegations.
At this early stage in the litigation, the Eighth Circuit holds
that "Cook has plausibly alleged that George's refused to consider
rehiring him because of his disability. In far more than a
threadbare complaint, Cook has sufficiently stated a claim. Given
the nature of the facts alleged, including insider information from
at least one of George's HR employees, Cook may eventually attempt
to prove intentional discrimination by indirect and direct
evidence. It is for this very reason that we do not hold Cook to
alleging a rigid prima facie case at this stage of the
litigation."
The district court also denied Cook's motion to amend his
complaint, finding any amendments would be futile. Finding that
Cook's original complaint alleged sufficient facts to state a
facially plausible ADA cause of action, the same is true of Cook's
amended complaint, which only added to the allegations made against
George's. Cook's request for leave was therefore not futile and
should have been granted.
For these reasons, the Eighth Circuit reversed the district court's
grant of the motion to dismiss, and denial of the motion for leave
to amend.
A full-text copy of the Court's March 11, 2020 Order is available
at https://is.gd/M4Fzvs from Leagle.com.
Gary V. Weeks -- gweeks@bassettlawfirm.com -- for
Defendant-Appellee.
Stephen Lee Wood -- contact@stephenleewood.lawyer -- for
Defendant-Not Party.
Luther Oneal Sutter -- luthersutter.law@gmail.com -- for
Plaintiff-Appellant.
Lucien Ramseur Gillham, for Plaintiff-Appellant.
K.C. Dupps Tucker -- kc.tucker@lawgroupnwa.com -- for
Defendant-Appellee.
Kristy E. Boehler -- kristy.boehler@lawgroupnwa.com -- for
Defendant-Appellee.
GEORGIA: Court Dismisses Adams RICO Suit Without Prejudice
----------------------------------------------------------
Judge John R. Adams of the U.S. District Court for the Northern
District of Ohio, Eastern Division, dismissed without prejudice the
case, ANTHONY OLIVER, Plaintiff, v. WILLIAM A. LEFAIVER, et al.,
Defendants, Case No. 5:19CV2204 (N.D. Ohio).
Pro se Plaintiff Oliver brings the action against Defendant
LeFaiver and 25 Doe Defendants alleging federal RICO and state law
claims. The Plaintiff is a state prisoner currently incarcerated
in the Lee County Prison & Infirmary in Leesburg, Georgia.
According to the Complaint, the Defendant is an Ohio attorney whose
principal place of business is located within the Northern District
of Ohio and, therefore, venue is proper in the judicial district.
The Plaintiff alleges that he was employed as a paralegal by an
attorney in California who filed a federal class action in in the
Middle District of California in February 2017 against Alcohol
Monitoring Systems, Inc. He claims that after the California class
action was filed, the California attorney he worked for received
calls from all over the country from lawyers with clients seeking
to join the class action, including Defendant LeFaiver, a lawyer
from Ohio.
The Plaintiff states that in June 2017, he and his California
attorney employer decided to file a second federal class action in
the District of Colorado and LeFaiver's client, Ms. Soltis, was
added as a class Plaintiff to the Colorado class action. He
alleges that Defendant LeFaiver signed a co-counsel agreement with
local Colorado counsel in the Colorado class action and sought
admission to the District of Colorado, which included paying a fee
and providing a certificate of good standing. The Plaintiff
alleges that the district judge in the Colorado class action
scheduled a status conference requiring attendance by the counsel
of record, but LeFavier lacked funds to attend the status
conference.
The Plaintiff states that LeFavier solicited funds from the
Plaintiff in the action and the Colorado class action plaintiffs
but was unable to secure funds to attend the status conference. He
then alleges that LaFaiver contacted the district judge in the
Colorado class action and told the judge that he never agreed to
represent anyone in the Colorado class action and that he stole his
identity, credit card information, and illegally obtained his
certificate of good standing from the State Bar and Ohio Supreme
Court. Upon learning of this, the California attorney employing
the Plaintiff terminated his employment. The Plaintiff alleges
that as a consequence, he was unable to obtain employment and to
enter law school and his reputation was damaged.
Based on these facts, the Plaintiff asserts five causes of action.
First, he claims that he had a contract with the Defendant to serve
as a paralegal in the Colorado class action and by implicating him
in multiple felonies, the Defendant breached that agreement.
Second, he claims that by implicating him in felonies he did not
commit, the Defendant defamed him under Ohio law. Third, the
Plaintiff alleges that the Defendant violated RICO and committed
wire fraud because defendant sought money from him to pay for a
plane ticket to Colorado and for the Defendant's admission to the
Colorado court by means of false pretenses and representations.
Fourth, he claims that the Defendant's conduct violated various
California laws, where the Plaintiff was living at the time.
Fifth, the Plaintiff asks the Court to: (1) declare that he did not
commit a crime and that the Defendant committed fraud and perjury
in the District of Colorado; (2) order the State Bar of Ohio to
place the Defendant in inactive status, the Ohio Secretary of State
to suspend the Defendant's corporate license; and (3) refer the
matter to the U.S. Attorney's office for investigation. Among
other relief, the Plaintiff seeks compensatory and punitive
damages.
The Plaintiff states that with respect to the allegations at issue
in the action, he filed a complaint with the Ohio State Bar against
defendant and that complaint is pending. The Ohio State Bar
grievance proceeding against the Defendant, an Ohio attorney,
implicates an important state interest. The Plaintiff does not
indicate that Ohio's attorney complaint proceedings will not afford
him the opportunity to raise the federal questions he raises in the
action.
Judge Adams holds that the pending Ohio attorney complaint
procedure initiated by the Plaintiff with the Ohio State Bar
satisfies all three of the Younger criteria. Accordingly, the
Court must abstain from exercising jurisdiction over the case in
deference to the pending state proceedings, and the action is
dismissed without prejudice.
For all the foregoing reasons, Judge Adams declined to exercise
jurisdiction over the matter and the case is dismissed without
prejudice pursuant to 28 U.S.C. Section 1915(e)(2)(B). The
Plaintiff's motion for service of the Complaint is moot and denied
as such.
Judge Adams certified, pursuant to 28 U.S.C. Section 1915(a)(3),
that an appeal from his decision could not be taken in good faith.
A full-text copy of the Court's March 11, 2020 Memorandum Opinion
is available at https://is.gd/2HMhzg from Leagle.com.
Anthony Oliver, Plaintiff, pro se.
HEALTHCARE REVENUE: Faces Edwards FDCPA Suit in N.D. Illinois
-------------------------------------------------------------
A class action lawsuit has been filed against Healthcare Revenue
Recovery Group, LLC. The case is captioned as Jered Edwards, on
behalf of himself and all others similarly situated v. Healthcare
Revenue Recovery Group, LLC, Case No. 1:20-cv-01723 (N.D. Ill.,
March 11, 2020).
The case is assigned to the Hon. Judge Mary M. Rowland.
The lawsuit alleges violation of the Fair Debt Collection Practices
Act.
Healthcare Revenue provides collection services to health care
sector.[BN]
The Plaintiff is represented by:
Mario Kris Kasalo, Esq
THE LAW OFFICE OF M. KRIS KASALO, LTD.
20 North Clark Street, Suite 3100
Chicago, IL 60602
Telephone: (312) 726-6160
E-mail: mario.kasalo@kasalolaw.com
- and -
Celetha Chatman, Esq.
Michael Jacob Wood, Esq.
COMMUNITY LAWYERS GROUP, LTD.
20 North Clark Street, Suite 3100
Chicago, IL 60602
Telephone: (312) 757-1880
E-mail: cchatman@communitylawyersgroup.com
mwood@communitylawyersgroup.com
HOME DEPOT: Missouri Eastern Dist. Denies Bid to Remand Waters Suit
-------------------------------------------------------------------
Judge Stephen N. Limbaugh, Jr. of the U.S. District Court for the
Eastern District of Missouri, Eastern Division, denied the Waters'
motion to remand the case, GREGORY WATERS, on behalf of Himself and
others similarly situated, Plaintiff, v. THE HOME DEPOT USA, INC.,
Defendant, Case No. 4:19-cv-02467-SNLJ (E.D. Mo.).
The Plaintiff, a Missouri resident, has filed a class-action
complaint challenging Home Depot's collection of certain state
taxes on the sales of products to Missourians through "remote sales
channels," including its online website (www.homedepot.com). On
Aug. 30, 2019, Home Depot removed the case from state to federal
court pursuant to diversity jurisdiction under the Class Action
Fairness Act.
The Plaintiff says that, on Feb. 28, 2019, he purchased a 20-piece
Stanley tool set on Home Depot's website, which was to be delivered
to his home in St. Louis County, Missouri. That tool set was
shipped from one of Home Depot's facilities in Plainfield, Indiana.
Plaintiff states his order was not placed at and did not involve,
directly or indirectly, any of Home Depot's brick-and-mortar stores
in Missouri.
The Plaintiff says the case comes down to whether the online
transaction at issue should invoke Missouri's imposition of a sales
tax or a use tax. He argues in his complaint that Section 144.020,
RSMo, imposes a sales tax on the sale of tangible personal property
between a Missouri seller and a Missouri purchaser. That tax rate
would be 4.225% plus applicable local sales taxes. On the other
hand,he says sales transactions involving an in-bound shipment of
tangible personal property from an out-of-state location to a
purchaser in Missouri is subject to a compensating use tax under
Section 144.610, RSMo. Missouri's use tax is also 4.225% plus
applicable local use taxes.
For his delivery address, Home Depot charged te Plaintiff a sales
tax of 7.594%. The Plaintiff says he should, instead, have been
charged a use tax rate of 4.225%. His complaint does not explain
whether St. Louis County imposes an additional local use tax, but
proceeds instead on the assumption that it does not. In any event,
he seeks to represent a class of consumers who, like him, were
charged tax monies at the higher sales tax rate rather than the
lower use tax rate as part of a "remote sales channel" purchase.
Based on the alleged overtaxing by Home Depot, the Plaintiff
proceeds down the state-law liability avenues of a Missouri
Merchandising Practices Act violation under Section 407.020, RSMo
(Count I), unjust enrichment (Count II), negligence (Count III),
and money had and received (Count IV).
Before the Court, now, is the Plaintiff's motion for remand. He
makes three independent arguments for remand. First, he argues the
case should be remanded on "comity grounds." Second, he argues the
Tax Injunction Act ("TIA"), prevents the Court's exercise of
federal jurisdiction in that his remedies seek, among other things,
an injunction barring the collection of certain state taxes.
Third, he argues Home Depot erroneously calculated the $5 million
amount-in-controversy threshold for purposes of satisfying
jurisdiction under CAFA.
First, Judge Limbaugh holds that it is clear the transaction
involved here must fall under one of these two examples and, to be
sure, the parties themselves rely on them. But which of these
examples applies is a factual determination that need not be made
now. Rather, in resolving the issue of remand, it is enough to
hold that Missouri law is neither unsettled nor novel on the issues
confronted in the case. All that is being asked is for the Court
to make a routine application of the in-commerce exemption. The
Judge declines, therefore, to abstain as a matter of comity.
Next, the Judge holds that neither party disputes that Missouri has
imposed a tax on the online transaction at issue. The only
question is whether that tax comes in the form of sales tax or use
tax -- and that question, as noted, does not require new-found
interpretation of Missouri's tax laws, but merely routine
application of them. So, it is inaccurate to say that the Court
would restrain the "assessment, levy, or collection" of any
Missouri tax. Further, it is a red herring to focus, as the
Plaintiff does, simply on the negative impact this suit may have on
state revenues. Rather, the question, properly framed, is whether
the sought-after relief to some degree stops an assessment, levy,
or collection. No such relief is sought here. The Court is only
being asked to see that Home Depot pays the tax actually imposed by
Missouri law and, if necessary, refund overpayments to its
customers. Such a case does not restrain either the assessment or
collection tax of tax by Missouri; rather, it effectuates those
efforts.
Finally, Judge Limbaugh will not opine on the expected hours to be
worked in the case or the hourly fee to be collected -- neither
party endeavors to answer that question -- but, suffice it to say,
a likely sizeable amount attorneys' fees, when combined with the
Plaintiff's compensatory damages estimation and a conservative
punitive damages award, ensures by a preponderance of evidence that
the amount-in-controversy exceeds $5 million. Finding that Home
Depot has done enough to substantiate its amount-in-controversy
estimates, and that the Plaintiff offers no contrary proof to
seriously challenge them, the Judge Court concludes the $5 million
amount-in-controversy requirement is satisfied.
Accordingly, Judge Limbaugh denied Waters' motion to remand.
A full-text copy of the Court's March 11, 2020 Memorandum & Order
is available at https://is.gd/RjOWnc from Leagle.com.
Gregory Waters, on behalf of himself and all others similarly
situated, Plaintiff, represented by Adam M. Goffstein, LAW OFFICE
OF A. M. GOFFSTEIN & Daniel John Orlowsky, ORLOWSKY LAW, LLC.
The Home Depot USA, Inc., Defendant, represented by Kathleen
Meredith Howard -- khoward@greensfelder.com -- GREENSFELDER HEMKER,
PC, Ronnie Lee White, II -- rwhite@greensfelder.com -- GREENSFELDER
HEMKER, PC & Russell K. Scott -- rks@greensfelder.com --
GREENSFELDER HEMKER, PC.
HONOR RESOURCES: Penska Seeks Unpaid Overtime Wages Under FLSA
--------------------------------------------------------------
Joe Penska, Individually and For Others Similarly Situated v. HONOR
RESOURCES COMPANY, Case No. 2:20-cv-00434-DSC (W.D. Pa., March 31,
2020), seeks to recover unpaid overtime wages and other damages
from the Defendant under the Fair Labor Standards Act, and the
Pennsylvania Minimum Wage Act.
According to the complaint, the Plaintiff regularly worked in
excess of 40 hours a week; but the Plaintiff never received
overtime for hours worked in excess of 40 hours in a single
workweek. Instead of receiving overtime as required by the FLSA and
PMWA, the Defendant classified the Plaintiff as independent
contractor and paid them a flat amount for each day worked without
overtime compensation.
Plaintiff Penska worked for the Defendant as a Senior Right of Way
Agent.
Honor "provides a professional land services to mineral,
telecommunication, real estate, utility, solar, wind, and pipeline
companies throughout the Appalachian Basin."[BN]
The Plaintiff is represented by:
Michael A. Josephson, Esq.
Andrew W. Dunlap, Esq.
Taylor A. Jones, Esq.
JOSEPHSON DUNLAP LAW FIRM
11 Greenway Plaza, Suite 3050
Houston, TX 77046
Phone: 713-352-1100
Facsimile: 713-352-3300
Email: mjosephson@mybackwages.com
adunlap@mybackwages.com
tjones@mybackwages.com
- and -
Richard J. (Rex) Burch, Esq.
BRUCKNER BURCH PLLC
8 Greenway Plaza, Suite 1500
Houston, TX 77046
Phone: (713) 877-8788
Facsimile: (713) 877-8065
Email: rburch@brucknerburch.com
- and -
Joshua P. Geist, Esq.
GOODRICH & GEIST, P.C.
3634 California Ave.
Pittsburgh, PA 15212
Phone: (412) 766-1455
Fax: (412)766-0300
Email: josh@goodrichandgeist.com
HUNGARY: Court Denies Bid to Dismiss Second Amended Simon FSIA Suit
-------------------------------------------------------------------
In the case, ROSALIE SIMON, et al., Individually, for themselves
and for all others similarly situated, Plaintiffs, v. REPUBLIC OF
HUNGARY, et al., Defendants, Civil Action No. 10-1770 (BAH) (D.
D.C.), Judge Beryl A. Howell of the U.S. District Court for the
District of Columbia denied the Defendants' motion to dismiss the
Plaintiffs' Second Amended Complaint.
The named Plaintiffs in the proposed class action include four
American citizens (Simon, Charlotte Weiss, Rose Miller, and Ella
Feuerstein Schlanger), two Canadian citizens (Helen Herman and
Helena Weksberg), seven Israeli citizens (Tzvi Zelikovitch, Magda
Kopolovich Bar-Or, Zehava (Olga) Friedman, Yitzhak Pressburger,
Alexander Speiser, Ze-ev Tibi Ram, and Moshe Perel), and one
Australian citizen (Vera Deutsch Danos), who are fourteen of the
approximately 825,000 Hungarian Jews who were subjected to the
atrocities and horrors of the Holocaust at the hands of the
Hungarian government between 1941 and 1945. The Plaintiffs
instituted the suit against the Republic of Hungary and the
Hungarian national railway, Magyar Allamvasutak Zrt. ("MAV"),
seeking restitution for property that was seized from them as part
of Hungary's broader effort to eradicate the Jewish people and then
commingled in the state's public fisc.
The Plaintiffs claim never to have been properly compensated for
the personal property seized from them by the Defendants as the
Plaintiffs were being deported. They believe that the Defendants
liquidated the stolen property, mixed the resulting funds with
their general revenues, and devoted the proceeds to funding various
governmental and commercial operations. Thus, the Plaintiffs claim
that the "stolen property or property exchanged for such stolen
property is owned and operated by Hungary and MAV," some of which
property "is present in the United States in connection with
commercial activity carried on in the United States by Hungary,"
including, for example, "fees and payments, offices, furniture,
furnishings, bank accounts, artwork, stock and bond certificates,
securities held in 'street name' and airplanes
The Plaintiffs' Second Amended Complaint asserts, in 10 counts,
claims for conversion (Count I), unjust enrichment (Count II),
breach of fiduciary and special duties imposed on common carriers
(Count III), recklessness and negligence (Counts IV, V), civil
conspiracy with Nazi Germany to commit tortious acts (Count VI),
aiding and abetting (Count VII), restitution (Count VIII),
accounting (Count IX), a demand for a declaratory judgment that
plaintiffs and class members are entitled to inspect and copy
certain documents, and for injunctive relief enjoining the
defendants from tampering with or destroying such documents (Count
X).
The Plaintiffs also assert that subject matter jurisdiction may
properly be exercised over their claims, and that the Defendants
are not immune from suit, pursuant to the FSIA's expropriation
exception, which exception permits suit against a foreign sovereign
or its agencies or instrumentalities in United States courts to
vindicate "rights in property taken in violation of international
law" when an adequate commercial nexus is present between the
United States and the Defendant.
After the D.C. Circuit twice rejected several bases asserted by the
Defendants for dismissal of the Plaintiffs' claims, the Defendants
now for the third time seek dismissal of the Plaintiffs' Second
Amended Complaint for lack of subject matter jurisdiction, pursuant
to Federal Rule of Civil Procedure 12(b)(1), on grounds of
sovereign immunity not exempted under the Foreign Sovereign
Immunity Act ("FSIA"). The Plaintiffs counter that the
requirements of the FSIA's expropriation exception are met, and
jurisdiction therefore may be exercised.
Judge Howell concludes that the Plaintiffs' Second Amended
Complaint sufficiently alleges, in claims asserting genocidal
takings of property from Hungarian Jews between 1941 and 1945, that
each Defendant, Hungary and MAV, commingled that expropriated
property in the country's treasury and thereby continue to possess
such property to sustain their commercial activities, including
Hungary's debt offerings and military purchases in the United
States, and MÁV's agent's commercial activities in the United
States. These allegations suffice to satisfy the FSIA's
expropriation exception and overcome the default grant of sovereign
immunity to the Defendants. Accordingly, the Plaintiffs' claims
may go forward against the Defendants.
For these reasons, Judge Howell denied the Defendants' motion to
dismiss. An Order consistent with his Memorandum Opinion will be
entered contemporaneously.
A full-text copy of the Court's March 11, 2020 Memorandum Opinion
is available at https://is.gd/50NPkj from Leagle.com.
ROSALIE SIMON, Plaintiff, represented by Charles Samuel Fax --
cfax@rwlls.com -- RIFKIN, LIVINGSTON, LEVITAN, & SILVER, David H.
Weinstein -- weinstein@wka-law.com -- WEINSTEIN KITCHENOFF & ASHER
LLC, Lawrence Marc Zell -- mzell@fandz.com -- ZELL & CO. & Paul G.
Gaston -- pgaston@attglobal.net -- LAW OFFICES OF PAUL G. GASTON.
HELEN HERMAN, Plaintiff, represented by Charles Samuel Fax,
RIFKIN, LIVINGSTON, LEVITAN, & SILVER, David H. Weinstein,
WEINSTEIN KITCHENOFF & ASHER LLC, Lawrence Marc Zell, ZELL & CO. &
Paul G. Gaston, LAW OFFICES OF PAUL G. GASTON.
CHARLOTTE WEISS, Plaintiff, represented by Charles Samuel Fax,
RIFKIN, LIVINGSTON, LEVITAN, & SILVER, David H. Weinstein,
WEINSTEIN KITCHENOFF & ASHER LLC, Lawrence Marc Zell, ZELL & CO. &
Paul G. Gaston, LAW OFFICES OF PAUL G. GASTON.
HELENA WEKSBERG, Plaintiff, represented by Charles Samuel Fax,
RIFKIN, LIVINGSTON, LEVITAN, & SILVER, David H. Weinstein,
WEINSTEIN KITCHENOFF & ASHER LLC, Lawrence Marc Zell, ZELL & CO. &
Paul G. Gaston, LAW OFFICES OF PAUL G. GASTON.
ROSE MILLER, Plaintiff, represented by Charles Samuel Fax, RIFKIN,
LIVINGSTON, LEVITAN, & SILVER, David H. Weinstein, WEINSTEIN
KITCHENOFF & ASHER LLC, Lawrence Marc Zell, ZELL & CO. & Paul G.
Gaston, LAW OFFICES OF PAUL G. GASTON.
TZVI ZELIKOVITCH, Plaintiff, represented by Charles Samuel Fax,
RIFKIN, LIVINGSTON, LEVITAN, & SILVER, David H. Weinstein,
WEINSTEIN KITCHENOFF & ASHER LLC, Lawrence Marc Zell, ZELL & CO. &
Paul G. Gaston, LAW OFFICES OF PAUL G. GASTON.
MAGDA KOPOLOVICH BAR-OR, Plaintiff, represented by Charles Samuel
Fax, RIFKIN, LIVINGSTON, LEVITAN, & SILVER, David H. Weinstein,
WEINSTEIN KITCHENOFF & ASHER LLC, Lawrence Marc Zell, ZELL & CO. &
Paul G. Gaston, LAW OFFICES OF PAUL G. GASTON.
ZEHAVA (OLGA) FRIEDMAN, Plaintiff, represented by Charles Samuel
Fax, RIFKIN, LIVINGSTON, LEVITAN, & SILVER, David H. Weinstein,
WEINSTEIN KITCHENOFF & ASHER LLC, Lawrence Marc Zell, ZELL & CO. &
Paul G. Gaston, LAW OFFICES OF PAUL G. GASTON.
YITZHAK PRESSBURGER, Plaintiff, represented by Charles Samuel Fax,
RIFKIN, LIVINGSTON, LEVITAN, & SILVER, David H. Weinstein,
WEINSTEIN KITCHENOFF & ASHER LLC, Lawrence Marc Zell, ZELL & CO. &
Paul G. Gaston, LAW OFFICES OF PAUL G. GASTON.
ALEXANDER SPEISER, Plaintiff, represented by Charles Samuel Fax,
RIFKIN, LIVINGSTON, LEVITAN, & SILVER, David H. Weinstein,
WEINSTEIN KITCHENOFF & ASHER LLC, Lawrence Marc Zell, ZELL & CO. &
Paul G. Gaston, LAW OFFICES OF PAUL G. GASTON.
ZE'EV TIBI RAM, Plaintiff, represented by Charles Samuel Fax,
RIFKIN, LIVINGSTON, LEVITAN, & SILVER, David H. Weinstein,
WEINSTEIN KITCHENOFF & ASHER LLC, Lawrence Marc Zell, ZELL & CO. &
Paul G. Gaston, LAW OFFICES OF PAUL G. GASTON.
VERA DEUTSCH DANOS, Plaintiff, represented by Charles Samuel Fax,
RIFKIN, LIVINGSTON, LEVITAN, & SILVER, David H. Weinstein,
WEINSTEIN KITCHENOFF & ASHER LLC, Lawrence Marc Zell, ZELL & CO. &
Paul G. Gaston, LAW OFFICES OF PAUL G. GASTON.
ELLA FEUERSTEIN SCHLANGER, Individually, for themselves and for
all others similarly situated, Plaintiff, represented by Charles
Samuel Fax, RIFKIN, LIVINGSTON, LEVITAN, & SILVER, David H.
Weinstein, WEINSTEIN KITCHENOFF & ASHER LLC, Lawrence Marc Zell,
ZELL & CO. & Paul G. Gaston, LAW OFFICES OF PAUL G. GASTON.
MOSHE PERELMAN, Plaintiff, represented by Charles Samuel Fax,
RIFKIN, LIVINGSTON, LEVITAN, & SILVER, David H. Weinstein,
WEINSTEIN KITCHENOFF & ASHER LLC, Lawrence Marc Zell, ZELL & CO. &
Paul G. Gaston, LAW OFFICES OF PAUL G. GASTON.
REPUBLIC OF HUNGARY, Defendant, represented by Holly Elizabeth
Loiseau -- holly.loiseau@weil.com -- WEIL, GOTSHAL & MANGES,
L.L.P., Brian Keith Gibson -- keith.gibson@weil.com -- WEIL,
GOTSHAL & MANGES, LLP & Konrad Lee Cailteux --
konrad.cailteux@weil.com -- WEIL, GOTSHAL & MANGES, LLP.
MAGYAR ALLAMVASUTAK ZRT., (MAV ZRT.), Defendant, represented by
Holly Elizabeth Loiseau, WEIL, GOTSHAL & MANGES, L.L.P., Brian
Keith Gibson, WEIL, GOTSHAL & MANGES, LLP & Konrad Lee Cailteux,
WEIL, GOTSHAL & MANGES, LLP.
RAIL CARGO HUNGARIA ZRT., Defendant, represented by Marianne R.
Casserly -- marianne.casserly@alstoncom -- ALSTON & BIRD, LLP,
Alan Kanzer -- alan.kanzer@alston.com -- ALSTON & BIRD LLP & Amber
Christina Wessels -- amber.wessels-yen@alston.com -- ALSTON & BIRD
L.L.P.
UNITED STATES OF AMERICA, Interested Party, represented by Nathan
Michael Swinton, U.S. DEPARTMENT OF JUSTICE.
REPUBLIC OF AUSTRIA, Amicus, represented by Thomas G. Corcoran Jr.
-- tgc@bcr-dc.com -- BERLINER, CORCORAN & ROWE, L.L.P.
ILLINOIS: Prelim Injunction Order in Monroe Prisoners Suit Vacated
------------------------------------------------------------------
In the case, JANIAH MONROE, MARILYN MELENDEZ, EBONY STAMPS, LYDIA
HELÉNA VISION, SORA KUYKENDALL, and SASHA REED, Plaintiffs, v.
STEVE MEEKS, MELVIN HINTON, and ROB JEFFREYS, Defendants, Case No.
18-cv-00156-NJR (S.D. Ill.), Judge Nancy J. Rosenstengel of the
U.S. District Court for the Southern District of Illinois (i)
vacated the Court's previous preliminary injunction order to the
extent that the Order could be construed to enjoin past wrongs for
the denial and delay of hormone therapy; and (ii) granted in part
and denied in part the Defendants' Motion for Reconsideration.
The Plaintiffs are transgender women in the custody of the Illinois
Department of Corrections ("IDOC"). They filed the putative class
action under 42 U.S.C. Section 1983, alleging IDOC provides
transgender inmates inadequate treatment for gender dysphoria, in
violation of the Eighth Amendment. The Plaintiffs bring the suit
against the IDOC Director, Chief of Health Services, and Mental
Health Supervisor in their official capacities.
On May 2, 2019, the Plaintiffs filed a motion for preliminary
injunction requesting the Court to order that IDOC cease certain
practices and policies that deny and delay competent treatment to
prisoners with gender dysphoria, and instructing IDOC to provide
medically necessary treatment.
The Court granted the motion and entered a preliminary injunction
ordering the Defendants to immediately: (i) cease the policy and
practice of allowing the Transgender Committee to make the medical
decisions regarding gender dysphoria and develop a policy to ensure
that decisions about treatment for gender dysphoria are made by
medical professionals who are qualified to treat gender dysphoria;
(ii) cease the policy and practice of denying and delaying hormone
therapy for reasons that are not recognized as contraindications to
treatment, ensure timely hormone therapy is provided when
necessary, and perform routine monitoring of hormone levels; and
(iii) cease the policy and practice of depriving gender dysphoric
prisoners of medically necessary social transition, including by
mechanically assigning housing based on genitalia and/or physical
size or appearance.
The Defendants were further ordered to: (i) develop policies and
procedures which allow transgender inmates access to clinicians who
meet the competency requirements stated in the WPATH Standards of
Care to treat gender dysphoria; (ii) allow inmates to obtain
evaluations for gender dysphoria upon request or clinical
indications of the condition; (iii) develop a policy to allow
transgender inmates medically necessary social transition,
including individualized placement determinations, avoidance of
cross-gender strip searches, and access to gender-affirming
clothing and grooming items; and (iv) advise the Court what steps,
if any, IDOC has taken to train all correctional staff on
transgender issues, including the harms caused by misgendering and
harassment -- by both IDOC staff and other inmates.
The Defendants filed a motion for reconsideration of the Court's
preliminary injunction order, and the Plaintiffs filed a response
in opposition.
Judge Rosenstengel finds it necessary to clarify the preliminary
injunction order. To the extent that the Order has been construed
to enjoin past wrongs for the denial and delay of hormone therapy,
she vacates the Order. The Judge still finds, however, that the
Plaintiffs have provided plenty of evidence that IDOC continuously
fails to provide adequate treatment to inmates with gender
dysphoria, including in the administration of hormone therapy.
Despite the known serious side effects of the hormones
administered, IDOC fails to adequately monitor inmates receiving
hormone therapy and properly adjust dosages.
Therefore, paragraph 2 of the preliminary injunction order, is
modified as follows: The Defendants are immediately ordered to
ensure that timely hormone therapy is provided when medically
necessary, including the administration of hormone dosage
adjustments, and to perform routine monitoring of hormone levels.
The Judge denies the motion to the extent Defendants are requesting
reconsideration of the requirement that the Defendants develop
policies and procedures which allow transgender inmates access to
clinicians who meet the competency requirements stated in the WPATH
Standards of Care to treat gender dysphoria. The Defendants argue
that the WPATH Standards of Care are not required by the Eighth
Amendment, and so the order violates the PLRA by exceeding what is
Constitutionally required. The Defendants state that it would be
more appropriate to order that they provide care by professionals
who are qualified to treat gender dysphoria.
The Judge finds that the WPATH Standards of Care are an appropriate
benchmark for treating gender dysphoria at this time. She
recognizes that while the recommendations of various medical groups
may be instructive in certain cases, they do not establish the
constitutional minima. Notably, the Defendants still have not put
forth a single expert to contest the WPATH Standards of Care or
offer an opinion about the appropriate level of care for
transgender inmates. Unless the Defendants offer an alternative
constitutionally adequate standard of treatment or an expert who
can speak to differing medically accepted treatment criteria
regarding gender dysphoria, the Court will continue to use the
WPATH Standards of Care as guidelines for constitutionally adequate
care under the Eighth Amendment.
For the reasons set forth, Judge Rosenstengel (i) vacated the
Court's previous preliminary injunction order to the extent that
the Order could be construed to enjoin past wrongs for the denial
and delay of hormone therapy; (ii) granted in part and denied in
part the Defendants' Motion for Reconsideration. (Doc. 203).
Paragraph 2 of the preliminary injunction order is modified as
follows:
The Defendants are immediately orderd to ensure that timely hormone
therapy is provided when medically necessary, including the
administration of hormone dosage adjustments, and to perform
routine monitoring of hormone levels. Pursuant to MillerCoors LLC
v. Anheuser-Busch Companies, the Court will enter the terms of the
amended preliminary injunction in a separate document.
Finally, the Court will address the issues regarding the
Defendants' compliance with the preliminary injunction order and
the request for the appointment of an expert to oversee compliance,
as raised by the Plaintiffs, in a separate order.
A full-text copy of the Court's March 4, 2020 Memorandum & Order is
available at https://is.gd/x6L0wv from Leagle.com.
Janiah Monroe, Marilyn Melendez, Lydia Helena Vision, Sora
Kuykendall & Sasha Reed, Plaintiffs, represented by John A. Knight
- jknight@aclu-il.org - Roger Baldwin Foundation of ACLU, Inc.,
Austin B. Stephenson - austin.stephenson@kirkland.com - Kirkland &
Ellis LLP, Brent P. Ray , Kirkland & Ellis LLP, 300 N La Salle Dr,
Chicago, IL 60654-3406, pro hac vice, Camille E. Bennett-
cbennett@aclu−il.org - Roger Baldwin Foundation of ACLU,
Inc.,
Carolyn M. Wald - cwald@aclu-il.org - Roger Baldwin Foundation of
ACLU, Inc., Catherine L. Fitzpatrick -
catherine.fitzpatrick@kirkland.com - Kirkland & Ellis LLP, Erica
B.
Zolner - erica.zolner@kirkland.com - Kirkland & Ellis LLP,
Ghirlandi Guidetti , Roger Baldwin Foundation of ACLU, Inc., 180 N
Michigan Ave Suite 2300 Chicago, IL 60601-1287, Megan M. New -
megan.new@kirkland.com - Kirkland & Ellis LLP, Samantha G. Rose -
sam.rose@kirkland.com - Kirkland & Ellis LLP, Sarah Jane Hunt ,
Kennedy Hunt P.C., 112 Front Street, Alton, IL 62002S, Sydney L.
Schneider - sydney.schneider@kirkland.com - Kirkland & Ellis LLP,
Thomas E. Kennedy, III , Law Offices of Thomas E. Kennedy, III,
L.C., 303 State St., Alton, IL 62002 & Jordan M. Heinz -
jordan.heinz@kirkland.com - Kirkland & Ellis LLP.
Ebony Stamps, Plaintiff, represented by John A. Knight , Roger
Baldwin Foundation of ACLU, Inc., Austin B. Stephenson , Kirkland
&
Ellis LLP, Brent P. Ray , Kirkland & Ellis LLP, pro hac vice,
Carolyn M. Wald , Roger Baldwin Foundation of ACLU, Inc.,
Catherine
L. Fitzpatrick , Kirkland & Ellis LLP, Erica B. Zolner , Kirkland
&
Ellis LLP, Ghirlandi Guidetti , Roger Baldwin Foundation of ACLU,
Inc., Megan M. New , Kirkland & Ellis LLP, Samantha G. Rose ,
Kirkland & Ellis LLP, Sarah Jane Hunt , Kennedy Hunt P.C., Sydney
L. Schneider , Kirkland & Ellis LLP, Thomas E. Kennedy, III , Law
Offices of Thomas E. Kennedy, III, L.C. & Jordan M. Heinz ,
Kirkland & Ellis LLP.
John Baldwin, Steve Meeks & Melvin Hinton, Defendants, represented
by Lisa A. Cook , Office of the Attorney General & Christopher L.
Higgerson , Illinois Attorney General's Office.
INDOCHINO APPAREL: Court Denies Bid to Dismiss Freeman Suit
-----------------------------------------------------------
In the case, JEFFREY FREEMAN, Plaintiff, v. INDOCHINO APPAREL,
INC., ET AL., Defendants, Case No. 19-CV-04539-YGR (N.D. Cal.),
Judge Yvonne Gonzalez Rogers of the U.S. District Court for the
Northern District of California denied the Defendants' motion to
dismiss the Plaintiff's First Amended Complaint, filed Dec. 18,
2019.
Defendants Indochino Apparel Inc., Indochino Apparel (US), Inc.
sell made-to-measure clothing such as suits, tuxedos, blazers,
vests and pants. Plaintiff Freeman brings the consumer class
action alleging that the Defendants engaged in a systematic and
pervasive false reference pricing scheme by deceptively advertising
through their website, in stores, via e-mails and on social media
that their clothing was "on sale" and was previously sold at a
substantially higher price when, in fact, the clothing was always
sold at or near the falsely claimed "sale" price.
The Plaintiff's First Amended Complaint alleges he bought a custom,
made-to-measure suit from Indochino on Aug. 4, 2017, in its San
Francisco showroom location. He claims he viewed the suit's
pricing on Indochino's website as well as when he visited its
showroom. He alleges he was injured by Indochino's use of
"reference pricing." The Plaintiff alleges Indochino's clothing
was regularly and repeatedly advertised at substantial discounts to
a specified reference price but rarely, if ever, sold at the
represented reference price. He alleges claims for violations of
the California Consumer Legal Remedies Act ("CLRA"); California
False Advertising Law ("FAL"); and California's Unfair Competition
Law ("UCL"), as well as claims for breach of contract; and unjust
enrichment.
Indochino moves to dismiss on several grounds: (1) insufficient
pre-suit notice with respect to Freeman's CLRA and contract claims;
(2) failure to allege plausible claims under the UCL, FAL or CLRA;
(3) failure to plead a plausible breach of contract claim; (4)
failure to allege a basis for and standing to pursue equitable
relief; and (5) failure to allege a basis for punitive damages.
Judge Rogers, having considered carefully the papers and pleadings
filed in support of and in opposition to the motion, will deny the
motion to dismiss.
Indochino moves to dismiss the CLRA and breach of contract claims
on the grounds that the Plaintiff failed to provide sufficient
pre-suit notice as required by California Civil Code section 1760
and California Commercial Code section 2607(3)(A). Judge Rogers
disagrees. The Plaintiff sent pre-suit notices to defendants on
June 5, 2019, via Federal Express and July 9, 2019, by certified
and registered mail. The Plaintiff did not seek damages in the
CLRA claim until the amendment of the complaint in December 2019.
The letters informed Indochino of the facts underlying the claims.
Based upon the allegations of the FAC, the Plaintiff did not learn
of the basis for his breach of contact claim until shortly before
the first letter was sent. In light thereof, the FAC alleges
timely and sufficient notice under these statutes.
Indochino next argues that the Plaintiff's claims under the UCL,
FAL, and CLRA are not plausible because no reasonable consumer
likely would be deceived by the pricing practices plaintiff
alleges; the references prices were not deceptive; and restitution
is not available in this type of case.
Judge Rogers finds that (i) Indochino's reference price
representations would not mislead a reasonable consumer; (ii) the
FAC alleges why the reference prices are deceptive; and (iii) the
Plaintiff's CLRA, UCL, and FAL claims are sufficiently alleged.
The Determination of whether the Plaintiff can offer a viable model
for measuring restitution is premature at this point in the
litigation. The motion to dismiss the CLRA, UCL, and FAL claims on
the foregoing grounds will, therefore, be denied.
Next, the Judge holds that Indochino's argument that the Plaintiff
does not give even an estimated amount or propose any way to
calculate these purported damages, misunderstands the Plaintiff's
pleading burden. Such issues are premature and not a valid basis
to dismiss the breach of contract claim. The motion to dismiss on
these grounds is will be denied.
With respect to injunctive relief, the Plaintiff sufficiently
alleges standing for prospective injunctive relief. The Plaintiff
plausibly alleges a continued desire to purchase custom-made
clothing from Indochino in the future if it accurately represents
the prevailing market value of that clothing. With regard to
unjust enrichment, Ninth Circuit law is well-settled that the claim
alleged here is cognizable and not duplicative of other claims for
breach of contract or restitution. Thus, Indochino's motion on
these grounds will be denied.
Finally, Indochino argues that the Court should dismiss the
Plaintiff's prayer for punitive damages, even while acknowledging
that California Civil Code section 1780(a)(4) expressly permits
such damages. California Civil Code section 3294(a) sets the
standard for an award of punitive damages on a state law claim,
requiring the Plaintiff to show that the Defendant's conduct
evinces oppression, fraud or malice. The Plaintiff alleges
fraudulent and misleading conduct. As with other arguments by
Indochino, dismissal of the Plaintiff's request for punitive
damages at this stage is premature and without a substantial basis.
The motion on these grounds will be denied.
Based on the foregoing, Judge Rogers denied Indochino's motion to
dismiss on all grounds stated. The Defendants will file their
answer to the FAC within 14 days of the Order. An initial case
management conference is set for April 6, 2020 at 2:00 p.m. The
parties will file an updated joint case management statement seven
days in advance of the conference. The Order terminates Docket No.
37.
A full-text copy of the Court's March 11, 2020 Order is available
at https://is.gd/2yJ844 from Leagle.com.
Jeffrey Freeman, on behalf of himself and all others similarly
situated, Plaintiff, represented by Eric Somers --
esomers@lexlawgroup.com -- Lexington Law Group & Ryan Benjamin
Berghoff -- rberghoff@lexlawgroup.com -- Lexington Law Group.
Indochino Apparel, Inc. & Indochino Apparel (US), Inc., Defendants,
represented by Tammy Beth Webb -- tbwebb@shb.com -- Shook, Hardy &
Bacon L.L.P., John K. Sherk, III -- jsherk@shb.com -- Shook, Hardy
& Bacon L.L.P. & Matthew Francis Williams -- mfwilliams@shb.com --
Shook, Hardy & Bacon L.L.P..
INSULET CORPORATION: Johnson Sues Over FCRA and ICRAA Violations
----------------------------------------------------------------
Lori Johnson, as an individual and on behalf of all others
similarly situated v. INSULET CORPORATION, a Delaware Corporation,
and DOES 1-50, Inclusive, Case No. 2:20-cv-03022 (C.D. Cal., March
31, 2020), is brought to seek compensatory and punitive damages due
to the Defendant's violation of the Fair Credit Reporting Act and
the Investigative Consumer Reporting Agencies Act.
The proposed class action arises from the Defendant's acquisition
and use of consumer and/or investigative consumer reports to
conduct background checks on the Plaintiff and current and former
employees. The Defendant routinely obtains and uses information
from background reports in connection with its hiring processes
without complying with state and federal mandates.
The Defendant has violated the requirements under relevant statutes
by failing to provide proper release and disclosure authorization
to the Plaintiff, says the complaint.
The Plaintiff is individual and natural person domiciled in the
State of California, who worked for the Defendant.
Insulet Corporation is a Delaware Corporation authorized to do
business in the State of California.[BN]
The Plaintiff is represented by:
Zachary Crosner, Esq.
Michael Crosner, Esq.
J. Kirk Donnelly, Esq.
CROSNER LEGAL, P.C.
433 N. Camden Dr., Suite 400
Beverly Hills, CA 90210
Phone: (310)496-5818
Facsimile: (818) 700-9973
Email: zach@crosnerlegal.com
mike@crosnerlegal.com
kirk@crosnerlegal.com
IQVIA INC: Order Striking Class Definition in Mussat Suit Flipped
-----------------------------------------------------------------
In the case, FLORENCE MUSSAT, M.D., S.C., on behalf of itself and
all others similarly situated, Plaintiff-Appellant, v. IQVIA, INC.,
et al., Defendants-Appellees, Case No. 19-1204 (7th Cir.), the U.S.
Court of Appeals for the Seventh Circuit reversed the judgment of
the district court granting IQVIA's motion to strike the class
definition.
Mussat, an Illinois physician doing business through a professional
services corporation, received two unsolicited faxes from IQVIA, a
Delaware corporation with its headquarters in Pennsylvania. These
faxes failed to include the opt-out notice required by federal
statute. Mussat's corporation (to which we refer simply as Mussat)
brought a putative class action in the Northern District of
Illinois under the Telephone Consumer Protection Act, on behalf of
itself and all persons in the country who had received similar junk
faxes from IQVIA in the four previous years. IQVIA moved to strike
the class definition, arguing that the district court did not have
personal jurisdiction over the non-Illinois members of the proposed
nationwide class.
The district court granted the motion to strike, reasoning that
under the Supreme Court's decision in Bristol-Myers Squibb Co. v.
Superior Court, not just the named Plaintiff, but also the unnamed
members of the class, each had to show minimum contacts between the
defendant and the forum state. Because IQVIA is not subject to
general jurisdiction in Illinois, the district court turned to
specific jurisdiction. Applying those rules, it found that it had
no jurisdiction over the claims of parties who, unlike Mussat, were
harmed outside of Illinois.
The Court granted Mussat's petition to appeal from that order under
Federal Rule of Civil Procedure 23(f). the The Seventh Circuit now
reaffirms the Rule 23(f) order, and holds that the principles
announced in Bristol-Myers do not apply to the case of a nationwide
class action filed in federal court under a federal statute. The
Seventh Circuit finds that Bristol-Myers neither reached nor
resolved the question whether, in a Rule 23 class action, each
unnamed member of the class must separately establish specific
personal jurisdiction over a defendant. In holding otherwise, the
district court failed to recognize the critical distinction between
the case and Bristol-Myers.
The proper characterization of the status of absent class members
depends on the issue. The Seventh Circuit sees no reason why
personal jurisdiction should be treated any differently from
subject-matter jurisdiction and venue: the named representatives
must be able to demonstrate either general or specific personal
jurisdiction, but the unnamed class members are not required to do
so.
It brings to IQVIA's second major point: that allowing the
non-Illinois unnamed class members to proceed would be inconsistent
with Federal Rule of Civil Procedure 4(k), which governs service of
process. The Seventh Circuit holds that IQVIA is mixing up the
concepts of service and jurisdiction. The rules for class
certification support a focus on the named representative for
purposes of personal jurisdiction.
Finally, it is worth recalling that the Supreme Court in
Bristol-Myers expressly reserved the question whether its holding
extended to the federal courts at all. In addition, the opinion
does not reach the question whether its holding would apply to a
class action. Fitting this problem into the broader edifice of
class-action law, the Seventh Circuit is convinced that it is one
of the areas Scardelletti identified in which the absentees are
more like nonparties, and thus there is no need to locate each and
every one of them and conduct a separate personal-juris-diction
analysis of their claims.
Despite its insistence to the contrary, IQVIA urges a major change
in the law of personal jurisdiction and class actions. This change
is not warranted by the Supreme Court's decision in Bristol-Myers,
nor by the alternative arguments based on Rule 4(k) that IQVIA puts
forth.
The Seventh Circuit reversed the judgment of the district court,
and remanded for further proceedings.
A full-text copy of the Court's March 11, 2020 Opinion is available
at https://is.gd/eNVKtX from Leagle.com.
Florence Mussat, M.D., S.C., on behalf of plaintiff and class
members defined herein, Plaintiff, represented by Cathleen M.
Combs, Edelman, Combs, Latturner & Goodwin LLC, Curtis Charles
Warner -- cwarner@warnerlawllc.com -- Warner Law Firm, LLC,
Heather
A. Kolbus, Edelman, Combs, Latturner & Goodwin, LLC, James O.
Latturner, Edelman, Combs, Latturner & Goodwin LLC & Daniel A.
Edelman, Edelman, Combs, Latturner & Goodwin LLC.
IQVIA, Inc., Defendant, represented by Edward C. Eberspacher, IV
--
teberspacher@meyerlex.com -- Meyer Law Group LLC.
J.W. LOGISTICS: Tavarez Sues to Recover Unpaid Overtime Wages
-------------------------------------------------------------
Miguel Tavarez, individually and on behalf of all persons similarly
situated v. J.W. Logistics Operations, LLC, Case No. 3:20-cv-03444
(D.N.J., March 31, 2020), is brought against the Defendant to
recover damages under the New Jersey Wage and Hour Law, the New
Jersey Wage Payment Law, and the doctrine of unjust enrichment for
alleged unpaid overtime wages.
According to the complaint, the Plaintiff routinely worked in
excess of 40 hours per week, but the Defendant did not pay the
Plaintiff and continues to deny Class Members overtime compensation
when they work in excess of 40 hours per week. The Defendant paid
the Plaintiff and continues to pay Class Members a set amount per
route. The Defendant, at its sole discretion, can and does make
deductions from Plaintiff and Class Members' pay.
The Plaintiff was employed as a delivery driver for the Defendant
beginning on March 26, 2019, until March 23, 2020.
The Defendant operates throughout the State of New Jersey. The
Defendant offers a "wide range of door-to-door distribution" for
its clients, including FedEx and Amazon.[BN]
The Plaintiff is represented by:
Ravi Sattiraju, Esq.
SATTIRAJU & THARNEY, LLP
50 Millstone Road
Building 300, Suite 202
East Windsor, NJ 08520
Phone: (609) 469-2110
Fax: (609) 228-5649
Email: rsattiraju@s-tlawfirm.com
- and -
Jeffrey H. Newhouse, Esq.
NEWHOUSE LAW PLLC
520 White Plains Road, Suite 500
Tarrytown, NY 10591
Phone: 914.366.7386
Email: jnewhouse@newhouselawfirm.com
JUST A SLICE: McLeod Suit Seeks Unpaid Wages for Delivery Drivers
-----------------------------------------------------------------
Savannah McLeod, individually and on behalf of similarly situated
persons v. JUST A SLICE PIZZA LLC d/b/a "Domino's Pizza," WOW Pizza
LLC and MICHAEL TINGEN, Case No. 1:20-cv-00295 (M.D.N.C., March 31,
2020), is brought under the Fair Labor Standards Act and the North
Carolina Wage and Hour Act to recover unpaid minimum wages owed to
the Plaintiff and similarly situated delivery drivers employed by
the Defendants at its Domino's stores.
The Defendants employ delivery drivers, who use their own
automobiles to deliver pizzas and other food items to their
customers. However, the Plaintiff alleges, instead of reimbursing
delivery drivers for the reasonably approximate costs of the
business use of their vehicles, the Defendants use a flawed method
to determine reimbursement rates that provides such an unreasonably
low rate beneath any reasonable approximation of the expenses they
incur that the drivers' unreimbursed expenses cause their wages to
fall below the federal and state minimum wage during some or all
workweeks.
The Plaintiff has been employed by the Defendants until October
2018 as a delivery driver at two of their Domino's Pizza stores.
The Defendants operate numerous Domino's Pizza franchise
stores.[BN]
The Plaintiff is represented by:
Jacob J. Modla, Esq.
THE LAW OFFICES OF JASON E. TAYLOR P.C.
454 South Anderson Rd., Suite 303
Rock Hill, SC 29730
Phone: 803-328-0898
Email: jmodla@jasonetaylor.com
- and -
J. Forester, Esq.
FORESTER HAYNIE PLLC
400 N. St. Paul Street, Suite 700
Dallas, TX 75201
Phone: (214) 210-2100
Fax: (214) 346-5909
Email: jay@foresterhaynie.com
JW LOGISTICS: Tavarez Suit Seeks to Recover Unpaid Overtime Wages
-----------------------------------------------------------------
Miguel Tavarez, individually and on behalf of all persons similarly
situated v. J.W. Logistics Operations, LLC, Case No.
2:20-cv-03444-MCA-MAH (D.N.J., March 31, 2020), is brought against
the Defendant to recover damages for unpaid overtime wages under
the New Jersey Wage and Hour Law, the New Jersey Wage Payment Law,
and the doctrine of unjust enrichment.
According to the complaint, the Plaintiff routinely worked in
excess of 40 hours per week. The Defendant did not pay the
Plaintiff and continues to deny Class Members overtime compensation
when they work in excess of 40 hours per week. The Defendant paid
the Plaintiff and continues to pay Class Members a set amount per
route. The Defendant, at its sole discretion, can and does make
deductions from the Plaintiff and Class Members' pay.
The Plaintiff was employed as a delivery driver for the Defendant
beginning on March 26, 2019, until March 23, 2020.
The Defendant is in the business of delivering freight for large
companies, such as FedEx and Amazon.[BN]
The Plaintiffs are represented by:
Ravi Sattiraju, Esq.
SATTIRAJU & THARNEY, LLP
50 Millstone Road
Building 300, Suite 202
East Windsor, NJ 08520
Phone: (609) 469-2110
Fax: (609) 228-5649
Email: rsattiraju@s-tlawfirm.com
- and -
Jeffrey H. Newhouse, Esq.
NEWHOUSE LAW PLLC
520 White Plains Road, Suite 500
Tarrytown, NY 10591
Phone: 914.366.7386
Email: jnewhouse@newhouselawfirm.com
KENOSHA COUNTY, WI: Bid to Certify Class in Olrich Suit Denied
--------------------------------------------------------------
In the case, JASON ALLEN OLRICH, Plaintiff, v. KENOSHA COUNTY, et
al., Defendants, Case No. 18-cv-1985-pp (E.D. Wis.), Judge Pamela
Pepper of the U.S. District Court for the Eastern District of
Wisconsin has entered an order (i) granting the Plaintiff's Motion
For Leave To Proceed Without Prepaying Filing Fee; (ii) denying the
Plaintiff's Motion To File Amended Complaint; (iii) denying without
prejudice the Plaintiff's Motion To Appoint Counsel, (iv) denying
the Plaintiff's Motion To Certify Class; and (vi) screening the
Plaintiff's Original Complaint.
The Plaintiff, who is representing himself, filed a complaint under
42 U.S.C. Section 1983, alleging that the Defendants violated his
civil rights. The Plaintiff has sued 10 Defendants -- Kenosha
County, the Kenosha County Detention Center ("KCDC"), the Kenosha
County Jail, Sheriff David Beth, "Jail Administrator," Corporal
Parker, John/Jane Doe correctional officer #1, correctional officer
Julian, John/Jane Doe correctional officer #2, and correctional
officer Haynes.
The Plaintiff alleges that around Jan. 1, 2018, he was an inmate at
KCDC. That day, Defendant Parker moved him from G-North to
E-North. E-North houses federal inmates and Immigration and
Customs Enforcement (ICE") detainees; the Plaintiff says he was
neither a federal inmate nor an ICE detainee. He asserts that
around Jan. 12, 2018, an immigration detainee who went by the name
"Daniel" began to sexually harass the Plaintiff. Daniel told the
him, for example, that he wanted "to suck Plaintiff's dick, fuck
the Plaintiff, and be the Plaintiff's boyfriend."
For relief, the Plaintiff asks the Court to require the defendants
to create new PREA policies and to house inmates according to their
classification. He also asks for compensatory and punitive
damages, fees, and costs.
On Dec. 18, 2018, the Court ordered the Plaintiff to pay an initial
partial filing fee of $0.71. It received that fee on Jan. 2, 2019.
Judge Pepper will grant the Plaintiff's motion for leave to
proceed without prepayment of the filing fee and require him to pay
the $348.58 balance of the filing fee as he is able.
The Plaintiff filed a motion titled Motion to File Amended
Complaint to Consolidate. The caption of the motion listed three
case numbers -- the instant case, 18-cv-1980 and Case No.
18-cv-1518. Judge Pepper will not grant the Plaintiff leave to
file the amended complaint, because it includes both the
allegations regarding the spoiled meat and the allegations of
indifference to sexual harassment by a fellow inmate. The
Plaintiff cannot join these unrelated claims in the same lawsuit.
For the same reason, the Judge will deny his request to consolidate
the case with Case No. 18-cv-1980. She also will deny as moot the
Plaintiff's request to stay screening until he filed the amended
complaint. The original complaint is the operative complaint, and
that is the complaint the Judge screens.
Judge Pepper first notes that the Plaintiff cannot sue the Kenosha
County Jail or the Kenosha County Detention Center under Section
1983. Though the Plaintiff has listed Kenosha County as a
Defendant, he has not made allegations that support a claim against
the county. Nor does the complaint state a claim against the
sheriff or the unnamed Jail Administrator. The complaint does not
state a claim against correctional officer Haynes. He does not
allege that Haynes was involved in the situation with Daniel.
This leaves Defendants Corporal Parker, John Doe #1, John Doe #2
and Julian. According to the complaint, the Plaintiff told all
four defendants that Daniel sexually harassed him and none of them
did anything. He also says that Julian failed to file the
Plaintiff's grievances about the incidents with Daniel.
At this early stage, the Plaintiff has alleged sufficient facts to
state a claim that he was exposed to an objectively serious risk of
sexual harassment, and that all four defendants knew about the
harassment (and therefore the threat of continued harassment) and
failed to act, subjecting the Plaintiff to potential harm (and harm
that actually occurred). Judge Pepper will allow the Plaintiff to
proceed against all three on a claim that they failed to protect
him. Once the known Defendants answer, the Plaintiff will have the
opportunity to conduct discovery, including discovery to learn the
identities of John Does #1 #2.
The Plaintiff also filed a motion to appoint counsel, which was
then replaced by an amended motion to appoint counsel. Judge Pepper
understands that it can be overwhelming for an inexperienced
litigant to navigate the many rules and procedures of the Court. As
the case progresses, if the legal and factual issues become too
complex for the Plaintiff or if he is unable to get the information
he believes he needs to prove his claims, he may renew his request
for a lawyer. The Judge also reminds the Plaintiff that if ever he
needs more time to do something, he may file a motion asking the
court to give him more time, as long as he files it in time for it
to reach the Court before the deadline for doing the particular
task expires.
Finally, the Plaintiff filed a motion to certify class. But his
complaint does not name any other prisoners as Plaintiffs (although
he refers to himself on the first page as "Jason Allen Olrich, et
al"); the Plaintiff is the only one who signed the complaint. Even
a plaintiff well-versed in the law cannot provide representation
that satisfies Rule 23. Judge Pepper will deny the motion.
Considering the foregoing, Judge Pepper (i) granted the Plaintiff's
motion for leave to proceed without prepayment of the filing fee;
(ii) denied without prejudice the Plaintiff's motion to appoint
counsel; (iii) denied the Plaintiff's motion to certify class; (iv)
denied the Plaintiff's motion to file an amended complaint; (v)
denied the Plaintiff's motion to consolidate cases; and (vi) denied
as moot the Plaintiff's motion to stay screening until he files an
amended complaint.
The Judge dismissed Defendants Kenosha County, Kenosha County
Detention Center, Kenosha County Jail, Sheriff David Beth, Jail
Administrator, and Correctional Officer Haynes.
She ordered the U.S. Marshals Service to serve a copy of the
complaint and this order on Defendants Corporal Parker and
Correctional Officer Julian under Federal Rule of Civil Procedure
4. The Congress requires the U.S. Marshals Service to charge for
making or attempting such service. Although the Congress requires
the Court to order service by the U.S. Marshals Service, it has not
made any provision for either the court or the U.S. Marshals
Service to waive these fees. The current fee for waiver-of-service
packages is $8 per item mailed. The full fee schedule is provided
at 28 C.F.R. Sections 0.114(a)(2), (a)(3). The U.S. Marshals
Service will give the Plaintiff information on how to remit
payment. The Court is not involved in collection of the fee.
The Judge ordered Defendants Parker and Julian to file a responsive
pleading to the complaint.
She ordered that the parties must not begin discovery until after
the Court enters a scheduling order setting deadlines for discovery
and dispositive motions.
The Judge will issue a separate order referring the case to
Magistrate Judge Nancy Joseph for pretrial proceedings.
She advised the Plaintiff that if he fails to file documents or
take other required actions by the deadlines the Court sets, the
Court may dismiss the case based on his failure to prosecute. The
parties must notify the clerk of court of any change of address.
Failure to do so could result in orders or other information not
being timely delivered, thus affecting the legal rights of the
parties.
A full-text copy of the Court's March 11, 2020 Order is available
at https://is.gd/3bMjvM from Leagle.com.
Jason Allen Olrich, Plaintiff, pro se.
KENOSHA COUNTY, WI: Olrich May Amend Complaint v. Food Provider
---------------------------------------------------------------
In the case, JASON ALLEN OLRICH, Plaintiff, v. KENOSHA COUNTY, et
al., Defendants, Case No. 18-cv-1980-pp (E.D. Wis.), Judge Pamela
Pepper of the U.S. District Court for the Eastern District of
Wisconsin has entered an order (i) granting the Plaintiff's Motion
For Leave To Proceed Without Prepaying Filing Fee; (ii) denying the
Plaintiff's Motion To File Amended Complaint; (iii) denying without
prejudice the Plaintiff's Motion To Appoint Counsel, (iv) denying
the Plaintiff's Motion To Certify Class; and (vi) screening the
Plaintiff's Original Complaint.
The Plaintiff, who is representing himself, filed a complaint under
42 U.S.C. Section 1983, alleging that the Defendants violated his
civil rights. The Plaintiff has sued nine Defendants -- Kenosha
County, the Kenosha County Detention Center, the Kenosha County
Jail, Sheriff David Beth, "Jail Administrator," "John or Jane Doe
Food Service Provider," correctional officer Ashley Ramona,
Corporal Hainey and correctional officer Shelby.
The Plaintiff alleges that around November or December of 2017, he
was incarcerated at Kenosha County Jail on the segregation X-Block.
He says that during that time, the Jail was serving spoiled meat,
making him and the other inmates sick. One day, the Plaintiff
became so sick that he was throwing up and unable to keep down
food. He told Ramona, who told him to "deal with it." The
Plaintiff says that when Hainey came through X-Block, the Plaintiff
told him that the meat was spoiled and that he might have food
poisoning; Hainey told him he couldn't do anything and advised him
to file a grievance. The Plaintiff asserts that Hainey could have
called a nurse or other medical personnel to see him but did not do
so. He filed a grievance about the spoiled meat, and food services
admitted that the meat was recalled and "admitted fault with the
incident.
The Plaintiff also alleges that when he was sent to prison around
Feb. 23, 2018, Defendant Shelby threw out all his grievances when
he packed up his property, including medical papers and other
documentation for contemplated litigation and grievances about the
spoiled meat.
On Dec. 18, 2018, the Court ordered the Plaintiff to pay an initial
partial filing fee of $0.71. It received that fee on Jan. 2, 2019.
Judge Pepper will grant the Plaintiff's motion for leave to
proceed without prepayment of the filing fee and require him to pay
the $348.58 balance of the filing fee as he is able.
The Plaintiff filed a motion titled "Motion to File Amended
Complaint." The caption of the motion listed three case numbers --
the instant case, 18-cv-1980 and Case No. 18-cv-1518. The motion
asked the Court to delay screening all three cases until after he'd
filed amended complaints, which he said he'd be doing in the next
three weeks. He told the court that he needed to amend the
complaints because he got "faulty advice and assistance" from
another inmate. The motion also asked the Court to consolidate
the case with Case No. 18-cv-1985, and to allow him to file a
single amended complaint for both.
Judge Pepper will not grant the Plaintiff leave to file the amended
complaint, because it includes both the allegations regarding the
spoiled meat and the allegations of indifference to sexual
harassment by a fellow inmate. The Plaintiff cannot join these
unrelated claims in the same lawsuit. For the same reason, the
Judge will deny his request to consolidate the case with Case No.
18-cv-1980. She also will deny as moot the Plaintiff's request to
stay screening until he filed the amended complaint. The original
complaint is the operative complaint, and that is the complaint the
Judge screens.
Turning to the Plaintiff's allegations, the Judge finds that the
Plaintiff does not explain how many times he was fed spoiled meat,
or who decided to feed it to him, or how long this went on. It is
not clear from the Plaintiff's complaint whether he told anyone
other than Ramona and Hainey about the spoiled meat. As it stands,
then, the Complaint does not state a claim of deliberate
indifference to conditions of confinement against Ramona or Hainey.
If the Plaintiff wishes to proceed on the claim, he must file an
amended complaint explaining who fed him the spoiled meat, how many
times or over what period he was fed spoiled meat, who he told, and
what (if anything) they did about it.
Nor does the complaint state a claim against Hainey for being
deliberately indifferent to his serious medical need. Regardless
of how a claim of deliberate indifference arises under the Eighth
Amendment (conditions of confinement, medical needs, excessive
force, etc.), the alleged deprivation must be, objectively,
sufficiently serious.
In addition, the Plaintiff has not stated a claim against the
Kenosha County Detention Center or the Kenosha County Jail, and he
cannot. Nor does the complaint state a claim against the sheriff
or the jail administrator. The Plaintiff has not stated a claim
against Shelby. He must not name Shelby in the amended complaint
unless he has proof that Shelby was more than negligent in throwing
out grievances about the spoiled meat.
The Plaintiff may have a claim against the food service provider.
He alleges that the food service provider has admitted that it knew
the meat was bad and that it is at fault. Judge Pepper will give
the Plaintiff the opportunity to amend his complaint. The Judge is
enclosing a copy of its complaint form and instructions. The
Plaintiff should write the word "Amended" in front of the word
"Complaint" at the top of the first page, and then put the case
number for the case—18-cv-1980" in the field for "Case Number."
He must list all the Defendants he is suing in the caption of the
amended complaint. He must use the spaces on pages two and three
to allege the key facts that give rise to the claims he wishes to
bring, and to describe which the Defendants he believes committed
the violations that relate to each claim. If the space is not
enough, he may use up to five additional sheets of paper (putting
page numbers on each additional page). The amended complaint takes
the place of the prior complaint, and must be complete in itself.
The Plaintiff cannot simply say, "Look at my first complaint for
further information." If the Plaintiff files the amended complaint
by the deadline, the Court will screen it under 28 U.S.C. Section
1915A.
The Plaintiff also filed a motion to appoint counsel, which was
then replaced by an amended motion to appoint counsel. The Judge
finds that at this early stage, the Plaintiff has managed to file
(apparently with the help of another inmate) both a complaint and
an amended complaint, as well as a motion for class certification
and an original and amended motion to appoint counsel. The Curt
has been able to understand his allegations; he writes clearly and
understandably. Right now, the only thing the Plaintiff needs to
do is to file an amended complaint that complies with the
instructions the Court has provided in the Order.
Given the Plaintiff's issues, the Judge will give him extra time to
file the amended complaint -- 30 days, more than the Court gives
other prisoners. If he needs more time, the Plaintiff should file
a motion asking for it, but he should make sure he files that
motion in time for the Court to receive it before the deadline for
filing the amended complaint. If, as the case moves along, the
Plaintiff finds himself unable to accomplish the tasks the court
sets, he may renew his motion to appoint counsel.
Finally, the Plaintiff filed a motion to certify class. But his
complaint does not name any other prisoners as Plaintiffs (although
he refers to himself on the first page as "Jason Allen Olrich, et
al"); the Plaintiff is the only one who signed the complaint. Even
a plaintiff well-versed in the law cannot provide representation
that satisfies Rule 23. The Judge will deny the motion.
Based on the foregoing, Judge Pepper (i) granted the Plaintiff's
motion for leave to proceed without prepayment of the filing fee;
(ii) denied without prejudice the Plaintiff's motion to appoint
counsel; (iii) denied the Plaintiff's motion to certify class; (iv)
denied the Plaintiff's motion to file an amended complaint; (v)
denied the Plaintiff's motion to consolidate cases; and (vi) denied
as moot the Plaintiff's motion to stay screening until he files an
amended complaint.
The Judge held that the Plaintiff's complaint fails to state a
claim. She ordered the Plaintiff may file an amended complaint
that complies with the instructions in this order. If he chooses
to file an amended complaint, he must do so in time for the court
to receive it by the end of the day on April 10, 2020. If the
Court does not receive the amended complaint by the end of the day
on April 10, 2020, it will dismiss the case based on the
Plaintiff's failure to state a claim in his original complaint and
will issue him a strike as required by 28 U.S.C. Section 1915(g).
The Judge advised the Plaintiff that if he fails to file documents
or take other required actions by the deadlines the Court sets, the
C may dismiss the case based on his failure to prosecute. The
parties must notify the clerk of court of any change of address.
Failure to do so could result in orders or other information not
being timely delivered, thus affecting the legal rights of the
parties.
The Judge included with her Order a copy of the guide entitled,
"Answers to Prisoner Litigants' Common Questions" and a blank
prisoner complaint form.
A full-text copy of the Court's March 11, 2020 Order is available
at https://is.gd/f6AJFk from Leagle.com.
Jason Allen Olrich, Plaintiff, pro se.
LIVE NATION: Still Defends Suits Related to Overpriced Tickets
--------------------------------------------------------------
Live Nation Entertainment, Inc. said in its Form 10-K report filed
with the U.S. Securities and Exchange Commission on February 27,
2020, for the fiscal year ended December 31, 2019, that the company
continues to defend several class action suits related to the
resale of tickets on secondary ticket exchanges at elevated
prices.
The following putative class action lawsuits were filed against
Live Nation and/or Ticketmaster in the United States and Canada:
Vaccaro v. Ticketmaster LLC (Northern District of Illinois, filed
September 2018); Ameri v. Ticketmaster LLC (Northern District of
California, filed September 2018); Lee v. Ticketmaster LLC, et al.
(Northern District of California, filed September 2018);
Thompson-Marcial v. Ticketmaster Canada Holdings ULC (Ontario
Superior Court of Justice, filed September 2018); McPhee v. Live
Nation Entertainment, Inc., et al. (Superior Court of Quebec,
District of Montreal, filed September 2018); Crystal Watch v. Live
Nation Entertainment, Inc., et al. (Court of Queen's Bench for
Saskatchewan, by amendments filed September 2018); Gaetano v. Live
Nation Entertainment, Inc., et al. (Northern District of New York,
filed October 2018); Dickey v. Ticketmaster LLC, et al. (Central
District of California, filed October 2018); Gomel v. Live Nation
Entertainment, Inc., et al. (Supreme Court of British Columbia,
Vancouver Registry, filed October 2018); Smith v. Live Nation
Entertainment, Inc., et al. (Ontario Superior Court of Justice,
filed October 2018); Messing v. Ticketmaster LLC, et al. (Central
District of California, filed November 2018); and Niedbalski v.
Ticketmaster LLC, et al. (Central District of California, filed
December 2018).
In March 2019, the court granted the defendants' motion to compel
arbitration of the Dickey lawsuit and stayed the matter. The
parties reached a settlement in October 2019, and the case was
thereafter dismissed with prejudice.
In April 2019, the court granted the defendants' motion to compel
arbitration of the Lee lawsuit and dismissed the case. Lee
subsequently appealed the District Court's ruling to the Ninth
Circuit.
The Gaetano lawsuit was voluntarily dismissed with prejudice by the
plaintiff in April 2019.
The Ameri lawsuit was dismissed in May 2019 in light of the
parties' agreement to arbitrate the matter and was subsequently
settled and dismissed with prejudice in December 2019.
The Vaccaro lawsuit was settled and dismissed in June 2019.
The Messing and Niedbalski lawsuits are stayed pending the outcome
of the appeal in the Lee matter.
The remaining lawsuits make similar factual allegations that Live
Nation and/or Ticketmaster LLC engage in conduct that is intended
to encourage the resale of tickets on secondary ticket exchanges at
elevated prices.
Based on these allegations, each plaintiff asserts violations of
different state/provincial and federal laws. Each plaintiff also
seeks to represent a class of individuals who purchased tickets on
a secondary ticket exchange, as defined in each plaintiff's
complaint.
The complaints seek a variety of remedies, including unspecified
compensatory damages, punitive damages, restitution, injunctive
relief and attorneys' fees and costs.
Live Nation said, "Based on information presently known to
management, we do not believe that a loss is probable of occurring
at this time, and believe that the potential liability, if any,
will not have a material adverse effect on our financial condition,
cash flows or results of operations. Further, we do not currently
believe that the claims asserted in these lawsuits have merit, and
considerable uncertainty exists regarding any monetary damages that
will be asserted against us. We intend to vigorously defend these
actions."
Live Nation Entertainment, Inc. operates as a live entertainment
company. It operates through Concerts, Sponsorship & Advertising,
and Ticketing segments. The Company was incorporated in 2005 and is
headquartered in Beverly Hills, California.
LUCKIN COFFEE: April 13 Lead Plaintiff Bid Deadline in Cohen
------------------------------------------------------------
On Feb. 13, 2020, Martin Cohen filed a class action lawsuit on
behalf of purchasers of Luckin securities between Nov. 13, 2019 and
Jan. 31, 2020, both dates inclusive. The Complaint alleges
violations of Sections 10(b) and 20(a) of the Securities Exchange
Act of 1934 and Rule 10b-5 promulgated thereunder.
The case is captioned MARTIN COHEN, individually and on behalf of
all others similarly situated, Plaintiff, v. LUCKIN COFFEE INC.,
JENNY ZHIYA QIAN, and REINOUT HENDRIK SCHAKEL, Defendants, Case No.
20-cv-01293 (LJL) (S.D. N.Y.).
As explained in the Court's Feb. 14, 2020 Order, Section
78u-4(a)(3)(A) of the Private Securities Litigation Reform Act
("PSLRA") requires that within 20 days of the filing of the
complaint, the Plaintiff will cause to be published, in a widely
circulated national business-oriented publication or wire service,
a notice advising members of the purported Plaintiff class of the
pendency of the action, the claims asserted therein, and the
purported class period. The Plaintiff's counsel notified the Court
that the required notice was published on Feb. 13, 2020.
Judge Lewis J. Liman of the U.S. District Court for the Southern
District of New York ordered that the members of the purported
class therefore have until April 13, 2020 to move the Court to
serve as the Lead Plaintiffs. The position to any motion for
appointment of the Lead Plaintiff will be served and filed by May
13, 2020. Finally, a conference will be held on June 2, 2020 at
11:00 a.m. in Courtroom 15C of the of the U.S. District Court for
the Southern District of New York, 500 Pearl Street, New York, New
York to consider any motions for appointment of the Lead Plaintiff
and the lead counsel and for consolidation.
If an amended complaint or a related case is filed prior to
appointment of a Lead Plaintiff, the Judge ordered that the
Plaintiff's counsel shall, within one week, submit a letter to the
Court identifying any differences between the allegations in the
new complaint(s) and the allegations in the original complaint
(including but not limited to any differences in the claims
asserted and the relevant class periods) and showing cause why the
Court should not order republication of notice under the PSLRA and
set a new deadline for the filing of motions for appointment.
The named Plaintiffs will promptly serve a copy of the Order on
each of the Defendants.
A full-text copy of the Court's March 11, 2020 Order is available
at https://is.gd/kYjgwy from Leagle.com.
Martin Cohen, 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.
MARK ADAMS: Connor Suit Moved From South Carolina to N.D. Ohio
--------------------------------------------------------------
The class action lawsuit styled as James Van Connor, on behalf of
himself and others similarly situated v. Mark Adams, Case No.
6:19cv03283, was transferred from the U.S. District Court for the
Southern District of South Carolina to the U.S. District Court for
the Northern District of Ohio (Cleveland) on March 11, 2020.
The Northern District of Ohio Court Clerk assigned Case No.
1:20-mc-00035-BYP to the proceeding. The case is assigned to the
Hon. Judge Benita Y. Pearson.[BN]
The Plaintiff is represented by:
Brian K. Murphy, Esq.
Jonathan P. Misny, Esq.
MURRAY, MURPHY, MOUL & BASIL
1114 Dublin Road
Columbus, OH 43215
Telephone: (614) 488-0400
Facsimile: (614) 488-0401
E-mail: murphy@mmmb.com
misny@mmmb.com
MEDIANT COMMUNICATIONS: Court Grants Bid to Dismiss Toretto Suit
----------------------------------------------------------------
In the case, PHILLIP TORETTO, et al., Plaintiffs, v. MEDIANT
COMMUNICATIONS, INC., Defendant, Case No. 19-cv-05208-EMC (N.D.
Cal.), Judge Edward M. Chen of the U.S. District Court for the
Northern District of California granted the Defendant's Motion to
Dismiss.
Mr. Toretto and Daniel C. King filed the suit as a putative class
action on Aug. 21, 2019. The Defendant is a Delaware corporation
that is employed by companies and mutual funds to distribute
materials to shareholders and coordinate shareholder voting. The
Plaintiffs' claims stem from a data breach that occurred in April
2019, during which hackers accessed Mediant's business email
accounts and stole the personal information of thousands of
shareholders, including individuals' names, genders, physical
addresses, email addresses, phone numbers, Social Security Numbers,
tax identification numbers, account numbers, and various other
types of information.
Mr. Toretto alleges that, as a result of the breach, he has
expended time and effort regularly monitoring his financial and
credit accounts in order to mitigate against potential harm. Given
the highly-sensitive nature of the information stolen, he remains
at a substantial and imminent risk of future harm. Mr. King makes
the same allegations.
On Nov. 4, 2019, the Defendant filed the Motion to Dismiss pursuant
to Federal Rules of Civil Procedure 12(b)(2) and 12(b)(6). S
Shortly thereafter, the parties stipulated to extend the briefing
deadlines for the Motion to Dismiss in order to facilitate
jurisdictional discovery. The Court granted that stipulation on
Nov. 15, 2019. Such discovery was conducted. The Motion to
Dismiss is pending before the Court.
Mediant is headquartered in New York and incorporated in Delaware.
The Plaintiffs concede that the Court lacks general personal
jurisdiction over their claims.
Judge Chen finds that (i) only a fraction of the affected
shareholders are California residents; (ii) the claims of the
California Plaintiff have no casual or proximate relationship to
Mediant's indirect contract with California companies; and (iii) no
evidence suggests that Mediant "expressly aimed" any intentional
act at California.
In light of the foregoing analysis, Judge Chen granted the
Defendant's Motion to Dismiss, and dismissed the Plaintiffs'
complaint in its entirety for lack of personal jurisdiction.
Because he dismissed on the basis of personal jurisdiction, the
Jduge did not reach the Defendant's other challenges to the
Plaintiff's allegations.
The Order disposes of Docket No. 24
A full-text copy of the Court's March 18, 2020 Order is available
at https://is.gd/kT68Iz from Leagle.com.
Phillip Toretto, individually and on behalf of all others similarly
situated & Daniel C King, individually and on behalf of all others
similarly situated, Plaintiffs, represented by Carrie Ann
Laliberte, Bonnett Fairbourn Friedman & Balint, PC, pro hac vice,
Elaine A. Ryan, Bonnett Fairbourn Friedman & Balint, PC, pro hac
vice, J. Austin Moore -- moore@stuevesiegel.com -- Stueve Siegel
Hanson LLP, pro hac vice, Norman E. Siegel --
siegel@stuevesiegel.com -- Stueve Siegel Hanson LLP, pro hac vice &
Patricia Nicole Syverson -- psyverson@bffb.com -- Bonnett Fairbourn
Friedman & Balint, P.C.
Mediant Communications, Inc., a Delaware corporation, Defendant,
represented by Casie Dell Collignon -- ccollignon@bakerlaw.com --
Baker Hostetler LLP & Matthew D. Pearson -- mpearson@bakerlaw.com
-- Baker & Hostetler LLP.
MERCEDES-BENZ USA: New Jersey Dist. Narrows Claims in Ponzio Suit
-----------------------------------------------------------------
In the case, ROBERT PONZIO, et al., Plaintiffs, v. MERCEDES-BENZ
USA, LLC, and DAIMLER AG, Defendants, Civil Action No. 18-12544 (D.
N.J.), Judge Joseph H. Rodriguez of the U.S. District Court for the
District of New Jersey granted in part and denied in part the
Defendants' Motions to Dismiss Complaint.
The case is a putative class action concerning a number of
Mercedes-Benz branded vehicles that have "Mars Red" paint.
Plaintiffs Robert Ponzio, Karina Kloczko, Jessica Irene Miller,
Thomas Hayes, Alex Acuna, Brian Madsen, Vanessa M. Montgomery,
Robert Mull, Hadiya Nelthrope, and Samuel Salgado, on behalf of
themselves and all other potential members of the Nationwide Class
and State Classes they seek to represent, filed a Complaint with
the Court on Aug. 8, 2018 alleging that the Mars Red paint is
defective. Specifically, the 360 page complaint claims that
Mercedes' Mars Red paint contains a defect that causes the
Vehicles' exterior clearcoat to bubble, peel, and flake off,
ultimately leading to rusting and corrosion.
The Plaintiffs define Mars Red as an automotive paint color
manufactured by PPG Industries, Inc., formerly known as Pittsburgh
Plate Glass Company. The color formulation, which is also commonly
known as Fire Opal, has been used by Mercedes between 2004 and
2017. The Plaintiffs bring the current action against Daimler and
its wholly owned subsidiary, MBUSA. According to the Complaint,
Daimler manufactures and sells automobiles through independent
retail dealers, outlets, and authorized dealerships primarily in
North America, Europe, and Asia, and designs Class Vehicles,
including the paint used on them. MBUSA (itself and through its
related entities) engaged in the business of marketing, warranting,
distributing, selling, leasing, and servicing automobiles,
including the Class Vehicles, throughout the United States.
The Plaintiffs' Class Vehicles were subject to Mercedes' New
Vehicle Limited Warranty ("NVLW"), which warrants to that any
authorized Mercedes-Benz Center will make any repairs or
replacements necessary, to correct defects in material or
workmanship arising during the warranty period. The warranty
period is 48 months or 50,000 miles, whichever occurs firs. The
nine named Plaintiffs in the case, each allege that they purchased
a Class Vehicle—a Mercedes-Benz with Mars Red Paint—which, at
some point, maintained a bubbling/peeling clearcoat.
According to the Plaintiffs', Mercedes markets a wide variety of
representations pertaining to their luxury vehicle and slogans such
as, "the best or nothing." Additionally, they claim that Mercedes'
advertises an advanced paint technology, paint jobs at the "Paint
Shop," and paint finishes, and makes representations concerning the
quality of its paint and paint process that, in effect, makes paint
a selling and attractive feature to consumers.
The Plaintiffs' assert that the Defendants knew of the Paint Defect
in the design and pre-production stages. Additionally, they allege
that the Defendants' knew of the Paint Defect (1) from its own
technical service bulletin (TSB); (2) from the warranty data and
replacement paint ordered; (3) from Class Member complaints made
directly to Mercedes; and (4) based on Class Member Complaints on
public forums.
According to the Plaintiffs', repainting the Class Vehicles, even
if done properly, does not cure the Paint Defect and does not
remedy the diminution of value that occurs as a result of the
repainting. They allege that there is a "stigma" associated with
repainted vehicles, that car purchasers "shy away" from these cars
which "ring alarm bells" that the vehicle may have been in an
accident. They claim this is especially true for luxury cars, such
as Mercedes. As a result of the disparity between the quality of
the Class Vehicles negotiated for and the Class Vehicles actually
received, the Plaintiffs and the Class members suffered economic
harm. The economic harm can be quantified as: (a) the economic
value of an effective remedy that restores the Class Vehicles to
their expected conditions (or the economic harm from the lack of
that remedy); (b) the discount that Plaintiffs and Class members
would have required to accept the Class Vehicles in their actual
condition; and/or (c) the diminished value of the Class Vehicles,
both those that have been repainted and those that have not.
Consequently, the laintiffs assert that the Defendants' are liable
for the following nationwide claims: (1) Fraudulent Concealment
(COUNT I); (2) Unjust Enrichment (COUNT II); and (3) Violations of
the Magnuson-Moss Warranty Act (COUNT III). Additionally, the
Plaintiffs' assert claims for Breach of Implied Warranty and Breach
of Express Warranty under each State class, as well as, violations
state statues for consumer fraud and unfair or deceptive trade
practices. Defendant MBUSA filed a Motion to Dismiss Plaintiffs'
Complaint for failure to state a claim, lack of personal
jurisdiction and lack of standing. Defendant Daimler later filed a
Motion to Dismiss based on same. The Court heard oral argument at
a hearing held on Sept. 17, 2019.
The Plaintiffs argue that the Defendants are subject to general
jurisdiction in the forum because MBUSA's former principal place of
business was located in New Jersey, at least until 2015. They,
however, concede MBUSA moved its headquarters to Georgia years
prior to the filing of the lawsuit. It appears then, that the two
paradigm bases for general jurisdiction are not present as MBUSA is
a Delaware company with its current principal place of business in
Georgia and Daimler is a foreign corporation with its principal
place of business in Stuttgart, Germany. Moreover, Judge Rodriguez
finds it unnecessary to determine whether these circumstances
further present an "exceptional" case warranting the exercise of
general jurisdiction beyond these paradigm foundations because the
Plaintiffs support a finding of specific jurisdiction.
The Judge then finds that the Defendants fail to argue that its
contacts are insufficient to establish jurisdiction. Rather, their
argument against specific jurisdiction rests entirely on its
contention that out of state Plaintiffs cannot sustain personal
jurisdiction over out of state Defendants based solely on their
similar injury to the resident-Plaintiff. However, the Plaintiffs
do not claim jurisdiction on that basis. Therefore, they have
established with reasonable particularity sufficient contacts
between the Defendants and the forum state, New Jersey, thereby
presenting a prima facie case for the exercise of personal
jurisdiction by the Court. Furthermore, considering the years of
extensive activity in the state, and continuing business to
present, the exercise of personal jurisdiction over the Defendants
is fair. Thus, Judge Rodriguez will deny the Defendants' Motions
to Dismiss for lack of personal jurisdiction.
Having decided that the Court maintains personal jurisdiction over
the Defendants, the Judge must address the Defendants' alternative
argument, that the Court should transfer the matter pursuant to 28
U.S.C. Section 1404(a) to the Northern District of Georgia. They
argue that both the private and public factors weigh in favor off
transfer or are otherwise neutral. Judge Rodriguez finds that the
Defendants have failed to meet their burden. While the Plaintiffs'
choice of forum may be given less weight to the extent that it is a
class action, it should be afforded deference because the operative
facts of the lawsuit have a much greater connection to this state,
than Georgia. Similarly, where the claim arose weighs heavily
against transfer. A t the time that a majority, if not all, claims
arose, MBUSA was located in New Jersey. The Defendants provide no
argument to the contrary.
The Defendants submit that their preference in forum -- the
Northern District of Georgia -- is more convenient for them because
MBUSA resides there now. The Judge agrees. MBUSA currently
maintains its headquarters in Georgia; it follows that factor two
weighs in favor of transfer.
Neither the Plaintiffs nor the Defendants submit that the ease of
access to sources of proof or the convenience of the witnesses --
to the extent that a witness may actually be unavailable for trial
-- favor or disfavor transfer. Therefore, both of these private
factors are also neutral.
With regard to the public interest factors, Judge Rodriguez finds
that the Defendants fail to put forth evidence pertaining to any
factor aside from court congestion. Because the actions in
question are alleged to have occurred since 2010, six named
Plaintiffs purchased cars before MBUSA's re-location, and all the
Plaintiffs purchased Class Vehicles manufactured prior to Mercedes
re-location, the interest in deterring conduct that occurred almost
exclusively in the state is high.
Finally, the Judge finds that New Jersey is the district in which
the substantial events giving rise to the Plaintiffs' claim arose,
and the district with the greater interest in resolving the case.
Considering all other factors neutral, he finds insufficient
grounds for transfer of venue. Therefore, he will deny the
Defendants' Motions to transfer the case to the Northern District
of Georgia.
Turning to the Motion to Dismiss, Judge Rodriguez will grant the
Defendants' Motions and dismiss the Plaintiffs' multistate specific
claims to the extent they are brought on behalf of putative class
members outside of the six states represented by named Plaintiffs
-- New Jersey, California, Florida, Kansas, New York, and North
Carolina -- without prejudice. The Plaintiffs' nationwide claims
for unjust enrichment and fraudulent concealment are common law
claims, and such claims rely on state law. For the same reasons,
the Judge finds that the Plaintiffs lack standing to bring such
claims on a national basis. Notwithstanding, the Plaintiffs bring
both claims, alternatively, under their respective home states' law
. The Judge will, therefore, allow Nationwide Count I and Count II
to proceed as to the named Plaintiffs under each of their
respective states' law.
Nationwide Count III alleges violations of the Magnuson-Moss
Warranty Act ("MMWA"). Although claims brought under the MMWA are
federal claims, they rely on the underlying state law claims
brought by the Plaintiffs. Therefore, the Plaintiffs' nationwide
claim under the MMWA will be dismissed for lack of standing.
Now, as for the Motion to Dismiss for Failure to State a Claim,
among other things, Judge Rodriguez (i) will deny the Defendants'
Motions to Dismiss for "group pleading" because the Plaintiffs'
Complaint sufficiently puts the Defendants on notice to suffice
pleading eequirements; (ii) finds that because the Plaintiffs have
sufficiently alleged Defendants presale knowledge, he will deny the
Defendants' Motions to Dismiss Count II as to Plaintiff Nelthrope;
(iii) rejects the Defendants remaining preliminary arguments for
dismissal of the statutory consumer fraud claims, as these are
duplicative of those advanced with respect to dismissal of the
Plaintiffs' fraudulent concealment claim; (iv) will grant the
Defendants' Motions to Dismiss all the named Plaintiffs' Breach of
Express Warranty Claims because the Plaintiffs Complaint does not
establish unconscionability of a warranty's durational limits so as
to render any named Plaintiffs' claims made after the expiration of
a warranty's coverage period timely; (v) will dismiss California
Counts III and V, Kansas Count II, Florida Count II, New Jersey
Count II, New York Count III, and North Carolina Count II because
the Plaintiffs have decided to not move forward with their claims
based on MBUSA's breach of implied warranty, and voluntarily
consent to their dismissal; and (vi) will grant the Defendants'
Motions to Dismiss Nationwide Count II because all of the named
Plaintiffs fail to state a plausible claim for unjust enrichment.
For the forgoing reasons, Judge Rodriguez granted in part and
denied in part the Defendants' Motions to Dismiss. An appropriate
order will issue.
A full-text copy of the Court's March 11, 2020 Opinion is available
at https://is.gd/dsvpmn from Leagle.com.
ROBERT PONZIO, KARINA KLOCZKO, JESSICA IRENE MILLER, ALEX ACUNA,
BRIAN MADSEN, VANESSA M. MONTGOMERY, ROBERT MULL, HADIYA NELTHROPE
& SAMUEL SALGADO, Plaintiffs, represented by CAROLINE F. BARTLETT
-- cbartlett@carellabyrne.com -- CARELLA BYRNE & JAMES E. CECCHI --
JCecchi@carellabyrne.com -- CARELLA BYRNE CECCHI OLSTEIN BRODY &
AGNELLO, P.C.
MERCEDES-BENZ USA, LLC, Defendant, represented by JOSEPH H. BLUM --
jblum@shb.com -- Shook, Hardy & Bacon, L.L.P., THOMAS J. SULLIVAN
-- tsullivan@shb.com -- SHOOK, HARDY & BACON, L.L.P. & JOHN MICHAEL
LYONS -- jlyons@shb.com -- Shook, Hary & Bacon L.L.P.
DAIMLER AG, Defendant, represented by JOSEPH H. BLUM, Shook, Hardy
& Bacon, L.L.P. & THOMAS J. SULLIVAN, SHOOK, HARDY & BACON, L.L.P.
METALCRAFT OF MAYVILLE: Mazurek Asks Court to Decertify Class
-------------------------------------------------------------
In the class action lawsuit styled as RICHARD MAZUREK, individually
and on behalf of all others similarly situated v. METALCRAFT OF
MAYVILLE, INC., Case No. 17-cv-1439 (E.D. Wisc.), the Plaintiff
asks the Court for an order:
a. decertifying the conditional class certified on February
18, 2018, consisting of:
"all persons who are or have been employed by Metalcraft
of Mayville, Inc. as hourly manufacturing employees at
Defendant's West Bend, Wisconsin on Mayville Wisconsin
locations since three years prior to the date the Court
enters this Order, or Defendant's Beaver Dam location
since December 1, 2017";
b. allowing opt-in plaintiffs 60 days from the Court's order
to bring their individual actions and toll the opt-in
plaintiffs' statutes of limitation during that period;
c. authorizing the Plaintiff to send Notice advising putative
Rule 23 class members that that Plaintiff is no longer
seeking Class certification and should they wish to bring
their Wisconsin law claims, they should do so;
d. allowing the Plaintiff to continue his claim on an
individual basis; and
e. dismissing the claims of current opt-in Plaintiffs without
prejudice so that they may assert their individual claims
in separate actions.
The Plaintiff filed his collective and class action complaint on
October 20, 2017, alleging violations of the Fair Labor Standards
Act of 1938.
On February 16, 2018, the Parties filed their Joint Stipulation to
Conditionally Certify a Collective Action Pursuant to the Fair
Labor Standards Act. The Court granted the Parties' stipulation on
February 18, 2018 and conditionally certified the collective
class:
Metalcraft offers a range of fabrication services, including
engineering and design, precision tooling, product assembly,
machining, and conventional and powder painting.[CC]
The Plaintiff is represented by:
Larry A. Johnson, Esq.
Summer Murshid, Esq.
Timothy Maynard, Esq.
HAWKS QUINDEL, S.C.
222 East Erie, Suite 210
P.O. Box 442
Milwaukee, WI 53201-0442
Telephone: 414-271-8650
Facsimile: 414-271-8442
E-mail: ljohnson@hq-law.com
smurshid@hq-law.com
tmaynard@hq-law.com
MICROCHIP TECH: Court Narrows Claims in Jackson Securities Suit
---------------------------------------------------------------
In the case, Ronald L. Jackson, Plaintiff, v. Microchip Technology
Incorporated, et al., Defendants, Case No. CV-18-02914-PHX-JJT (D.
Ariz.), Judge John J. Tuchi of the U.S. District Court for the
District of Arizona granted in part and denied in part Defendants
Microchip, Steve Sanghi, Ganesh Moorthy and J. Eric Bjornholt's
Motion to Dismiss Amended Complaint and Motion to Strike.
In the federal securities fraud class action, the Court appointed
Ronald L. Jackson, Trustee Under Agreement Dated 01/05/2012 by
Ronald L. Jackson, as the Lead Plaintiff under Section 21D(a)(3)(B)
of the Securities Exchange Act of 1934 as amended by the Private
Securities Litigation Reform Act of 1995, after finding he was the
most adequate Plaintiff under the PSLRA based on his monetary loss
of $214,240 allegedly resulting from the Defendants' wrongful
conduct.
Defendant Microchip is a publicly-traded company headquartered in
Arizona that manufactures computer chips, and Defendant Sanghi is
its CEO and Chairman of the Board of Directors, Defendant Moorthy
is its President and COO, and Defendant Bjornholt is its Senior VP
and CFO.
On March 1, 2018, Microchip announced its intent to acquire
Microsemi Corp., another chip manufacturer, for $10.15 billion
financed by $8.6 billion in new debt, by way of a press release
issued to the public and filed with the Securities and Exchange
Commission. Also on March 1, 2018, Sanghi, Moorthy, and Bjornholt
conducted Analyst Day via an in-person presentation and question
and answer session with investors and at least 14 stock research
analysts, which was also broadcast via conference call/webcast for
those persons who were not invited to attend and a transcript of
which was filed with the SEC.
The Plaintiff alleges that investors and stock-analysts expressed
concern with the cost of the transaction and Microchip's ability to
service the $8.6 billion in debt. Microchip publicly discussed the
benefits of acquiring Microsemi through a May 8, 2018 press release
and conference call; a May 10, 2018 Moorthy presentation; and 2018
SEC Forms 10-K and 8-K.
On May 29, 2018, Microchip issued a press release announcing that
the acquisition closed, and Microchip continued to communicate with
the public about the acquisition through a May 31, 2018 press
release and conference call; a June 4, 2018 Moorthy presentation; a
June 6, 2018 Bjornholt presentation; and a June 12, 2018 Moorthy
presentation. The Plaintiff alleges that the Defendants repeatedly
assured investors that although the cost of the transaction was
steep, the debt would be paid through free cash flow generated by
the combined entities after the Merger.
In the Amended Complaint, the operative pleading, the Plaintiff
alleges that the Defendants made 52 materially false statements or
omissions ("FS") in their communications with the public related to
Microchip's acquisition of Microsemi. At base, he contends that
the Defendants knowingly misrepresented the amount of inventory in
Microsemi's distribution channel and thus the net free cash flow
available to pay the substantial debt incurred in the acquisition.
Generally, the Plaintiff's allegations of the Defendants' false
statements and omissions fall into four substantive categories: (1)
statements having to do with the strength of Microsemi's business
and the compelling nature of the merger between Microchip and
Microsemi; (2) statements regarding Microsemi's inventory and sales
practices; (3) statements regarding Microsemi's financial results;
and (4) statements regarding Microchip's post-merger financial
condition, debt leverage, cash flow, and ability to reduce debt.
The Plaintiff, on behalf of the putative class, filed the lawsuit
on Sept. 14, 2018, to bring two claims against the Defendants: (1)
securities fraud liability under Section 10(b) of the Ac; and (2)
joint and several liability of controlling persons under Section
20(a) of the Act. The Defendants now move to dismiss the
Plaintiff's claims.
Separately, on Oct. 9, 2018, four former Microsemi corporate
officers filed a complaint in California state court to raise
claims of defamation, trade libel, and unfair competition against
Microchip and four of its corporate officers, including the three
individual Defendants in the present lawsuit. The basis of the
Plaintiffs' claims is that certain of the Defendants' post-merger
statements harmed their professional reputations. Certain of the
Plaintiff's allegations in the Amended Complaint of the lawsuit
refer to allegations from the Peterson Complaint, which allegations
the Defendants ask the Court to strike.
A securities fraud claim under Section 10(b) and Rule 10b-5
requires that a plaintiff demonstrate (1) a material
misrepresentation or omission; (2) scienter; (3) a connection
between the misrepresentation or omission and the purchase or sale
of a security; (4) reliance; (5) economic loss; and (6) loss
causation. The Defendants argue that the Plaintiff's claim fails
at elements (1) and (2) because the Plaintiff fails to adequately
plead that the Defendants made material false or misleading
statements or omissions knowing they were false or misleading and
thus with the requisite intent or deliberate recklessness.
In the PSLRA, the Congress created a "safe harbor" from liability
for a person who makes a "forward-looking statement," as defined in
the subsection, under certain circumstances. The Defendants
contend that they are entitled to safe harbor protection under the
PSLRA for 33 of the alleged false or misleading statements.
Judge Tuchi (i) agrees with the Defendants that the essential
nature of Sanghi's statements in FS 12-15 was forward-looking as
contemplated by the PSLRA; (ii) holds that because the press
releases also included adequate, meaningful cautionary statements
under the PSLRA, FS 27 and 29 are also subject to the safe harbor
and not actionable; and (iii) concludes that the statements the
Plaintiff challenges did not include specific statements of past or
present cash flow or inventory levels, which might make the
statements akin to the mixed statements in In re Quality Systems,
hence FS 1, 3, 30, 38, 42, 45, 48 and 53 are also subject to the
safe harbor and not actionable.
The Plaintiff argues that the statements are not entitled to safe
harbor protection because they did not include meaningful
cautionary statements, namely, disclosure that Microsemi had excess
inventory in the channel. The Judge disagrees with the Plaintiff
that the cautionary statements had to include details about
Microsemi's present inventory levels; indeed, it is simply another
way of arguing that the forward-looking statements -- which the
Plaintiff concedes are forward-looking -- contained or had to
contain past or present information. Accordingly, FS 2, 8-11, 16,
19, 21, 28, 31, 34, 39-41, 43-44, 49 and 51 are subject to the safe
harbor and not actionable.
The Defendants contend that the remaining 20 alleged false or
misleading statements identified in the Amended Complaint are not
accompanied by sufficient allegations to demonstrate that the
statements were false or misleading. Judge Tuchi finds that the
Plaintiff's allegations are sufficient for the Court to plausibly
infer that the Defendants made false or misleading statements in FS
4-7, 22, 24-26, 32-33, 35-36, and 50. The Defendants knew or
should have known that their prior disclosure that debt was a 4.7
times multiple of projected EBITDA was untrue, and debt was
actually five times EBITDA. Even taking into account the
Defendants' transparency as to Microsemi's prior practice of
reporting revenue on a GAAP basis, the Plaintiff has adequately
alleged in FS 32, 33, 35 and 367 that the omissions attendant to
the Defendants' May 31, 2018 statements regarding Microsemi's
non-GAAP revenue were false or misleading.
With regard to the scienter element of the Plaintiff's securities
fraud claim, it bears repeating that a defendant acts with scienter
if the defendant makes misrepresentations or omissions either
intentionally or with deliberate recklessness. The Plaintiff's
allegations are sufficient for the Court to find that Microchip had
constructive knowledge of the facts known by the individual
Defendants and other corporate officers. According to the
Plaintiff's allegations, Microsemi gave detailed information about
its inventory and revenue practices to Microchip's corporate
officers during the due diligence process but the individual
Defendants misrepresented or omitted core information in its public
communications on behalf of Microchip. The Plaintiff has thus
adequately alleged corporate scienter.
The Defendants' only basis for asking the Court to dismiss Count 2,
for joint and several liability of controlling persons under
Section 20(a) of the Act, is that the Plaintiff failed to state a
claim for Count 1. Because the Judge disagrees, Count 2 will
proceed along with Count 1.
Finally, in the Response, the Plaintiff asks the Court to deny the
Defendants' request for the Court to take judicial notice of the
Defendants' Exhibits 1, 2, 18, 19, and 20. Because the Judge did
not rely on any of those Exhibits to resolve the Defendants'
Motion, the Judge will deny the Plaintiff's request as moot.
Based on the foregoing, Judge Tuchi granted in part and denied in
part the Defendants' Motion to Dismiss Amended Complaint and Motion
to Strike. The Plaintiff has stated claims with regard to False
Statements 4-7, 22, 24-26, 32-33, 35-36, and 50. He granted the
Defendants' Motion to Dismiss with regard to the balance of the
alleged False Statements. The Judge denied the Defendants' request
to strike certain allegations from the Amended Complaint.
A full-text copy of the Court's March 11, 2020 Order is available
at https://is.gd/WvJgYa from Leagle.com.
Ronald L Jackson, Individually and on behalf of all others
similarly situated, Plaintiff, represented by Andrew S. Friedman --
afriedman@bffb.com -- Bonnett Fairbourn Friedman & Balint PC,
Francis Joseph Balint, Jr. -- fbalint@bffb.com
-- Bonnett Fairbourn Friedman & Balint PC, Robert Craig Finkel --
rfinkel@wolfpopper.com -- Wolf Popper LLP, pro hac vice, Kimberly
C. Page, Bonnett Fairbourn Friedman & Balint PC & William Fleming
King, Bonnett Fairbourn Friedman & Balint PC.
Microchip Technology Incorporated, Steven Sanghi & Ganesh Moorthy,
Defendants, represented by David B. Rosenbaum --
drosenbaum@omlaw.com -- Osborn Maledon PA, Diane Marie Walters,
Wilson Sonsini Goodrich & Rosati LLP, pro hac vice, Elizabeth Rose
Gavin, Wilson Sonsini Goodrich & Rosati LLP, pro hac vice, Keith E.
Eggleton, Wilson Sonsini Goodrich & Rosati, pro hac vice & Joseph
Nathaniel Roth -- jroth@omlaw.com -- Osborn Maledon PA.
J Eric Bjornholt, Defendant, represented by David B. Rosenbaum,
Osborn Maledon PA, Diane Marie Walters, Wilson Sonsini Goodrich &
Rosati LLP, pro hac vice, Joseph Nathaniel Roth, Osborn Maledon PA
& Keith E. Eggleton, Wilson Sonsini Goodrich & Rosati, pro hac
vice.
MOBILELINK: Martinez Sues to Recover Overtime Wages Under FLSA
--------------------------------------------------------------
Marion Martinez, individually and on behalf of all others similarly
situated v. MOBILELINK, Case No. 4:20-cv-01149 (S.D. Tex., March
31, 2020), seeks to recover unpaid overtime compensation under the
Fair Labor Standards Act of 1938.
The lawsuit seeks damages for the Plaintiff and others, who have
worked for the Defendant as Assistant Managers at Mobilelink retail
locations or in comparable roles with different titles ("AMs").
According to the complaint, the Defendant violated the FLSA by
requiring the Plaintiff to perform work "off the clock" and failing
to pay them the full extent of their overtime compensation. The
Plaintiff is entitled to unpaid overtime compensation from the
Defendant for all hours worked by them in excess of 40 hours in a
workweek, and is also entitled to liquidated damages pursuant to
the FLSA, says the complaint.
The Plaintiff was employed by the Defendant as an AM from December
2016 to July 2018.
MOBILELINK operates over 550 retail store locations across the
United States, including Texas.[BN]
The Plaintiff is represented by:
Alan L. Quiles, Esq.
Gregg I. Shavitz, Esq.
Camar R. Jones, Esq.
SHAVITZ LAW GROUP, P.A.
951 Yamato Road, Suite 285
Boca Raton, FL 33432
Phone: (561) 447-8888
Facsimile: (561) 447-8831
Email: aquiles@shavitzlaw.com
gshavitz@shavitzlaw.com
cjones@shavitzlaw.com
MONSTER CONSTRUCTION: Casebolt Files FLSA Suit in S.D. Florida
--------------------------------------------------------------
A class action lawsuit has been filed against Monster Construction
Inc., et al. The case is styled as Thom Casebolt, an individual,
and all others similarly situated v. Monster Construction Inc., a
Florida corporation, Roger Buczek, Case No. 9:20-cv-80529-XXXX
(S.D. Tex., March 30, 2020).
The Plaintiff filed the case under the Fair Labor Standards Act.
Monster Construction Inc. is a full service construction company.
The Plaintiff appears pro se.[BN]
MONSTER CONSTRUCTION: Fails to Pay Proper Wages, Casebolt Claims
----------------------------------------------------------------
Thom Casebolt, an individual, and all others similarly situated v.
MONSTER CONSTRUCTION INC., a Florida corporation, and ROGER BUCZEK,
an individual, Case No. 9:20-cv-80530-XXXX (S.D. Fla., March 30,
2020), arises from the Defendants' failure to pay proper wages
under the Fair Labor Standards Act.
According to the complaint, the Plaintiff was compensated solely by
a commission on sales. This commission based compensation did not
cover minimum wages or the required overtime pay during the
Plaintiff's employment with the Defendants. The Plaintiff was not
fully compensated for all commissions he earned. The Plaintiff
alleges that he was not properly compensated for his regular and
overtime hours worked for the Defendants.
The Plaintiff worked primarily in sales and marketing, but had
other duties with respect to the Defendant's business.
MCI was and is a Florida corporation located within Palm Beach
County, Florida.[BN]
The Plaintiff is represented by:
Nolan K. Klein, Esq.
LAW OFFICES OF NOLAN KLEIN, P.A.
5550 Glades Rd., Suite 500
Boca Raton, FL 33431
Phone: (954) 745-0588
Email: klei@nklegal.com
amy@nklegal.com
MSRS INC: Court Affirms Class Certification Denial in Puerta Suit
-----------------------------------------------------------------
In the case, SANDRA PUERTA, Plaintiff and Appellant, v. M.S.R.S.,
INC., Defendant and Respondent, Case No. E071590 (Cal. App.), Judge
Douglas P. Miller of the Court of Appeals of California for the
Fourth District, Division Two, affirmed the trial court's order
denying the Appellant's motion for class certification.
Plaintiff and Appellant Puerta appeals the denial of her motion for
class certification in a wage and hour case. Puerta sought to
certify a class of current and former employees of Defendant and
Respondent M.S.R.S., doing business as VM International, a
manufacturer of plastics.
She brought the action on behalf of herself and machine operators
employed by MSRS alleging that MSRS applied a uniform policy and
practice of failing to provide rest periods; failing to pay
overtime and requiring off-the-clock work; failing to provide meal
breaks; failing to provide accurate wage statements; failing to pay
wages at separation of employment; failing to reimburse for
necessary business expenditures; a violation of California's unfair
competition law ("UCL"); and a violation of the Labor Code Private
Attorneys General Act.
On Feb. 2, 2017, Puerta filed a second amended complaint on behalf
of herself and class members, which consisted of all non-exempt
employees in the positions of manufacturing operators and other
like positions employed by or formerly employed by MSRS, in the
State of California during the Class Period. The class period was
defined as the four years prior to the filing of the SAC, through
the date the final judgment was entered.
The trial court denied the Motion finding that Puerta was not a
suitable class representative and that she had failed to meet her
burden of showing the existence of an ascertainable and
sufficiently numerous class; a well-defined community of interest;
and substantial benefits from certification, which rendered
proceeding as a class superior to the alternatives, as required by
Code of Civil Procedure section 382.
Puerta makes two claims on appeal: (1) the trial court erred by
concluding she was not a suitable class representative and not
allowing her time to find a suitable class representative; and (2)
the trial court employed an incorrect standard of review by
addressing the merits of her claims in denying the Motion.
Judge Miller holds that the trial court could reasonably rely upon
the depositions of the five employees in concluding that Puerta had
failed to establish an ascertainable and sufficiently numerous
class, a well-defined community of interest, and substantial
benefits from certification that render proceeding as a class
superior to the alternatives. The trial court could reasonably
determine based on the evidence that individual issues
predominated, and that class certification was inappropriate. Only
Puerta attested to the violations and the depositions were
sufficient evidence of other employees who were not suffering the
same problems as Puerta. The trial court did not employ an
improper criterion in denying the Motion.
Next, Judge Miller finds that Puerta only presented evidence that
she had been denied overtime, rest and meal breaks, and purchased
items for which she was not reimbursed. There was no class to
represent based on the evidence presented in the trial court. And,
amending to substitute a class representative in the case would be
futile as it would not resolve the problem of class certification
because individual issues would still predominate.
Judge Miller affirmed the trial court's order denying the
Appellant's motion for class certification. As the prevailing
party, the Respondent is awarded its costs on appeal.
A full-text copy of the Court's March 11, 2020 Opinion is available
at https://is.gd/pMZSwk from Leagle.com.
Mahoney Law Group, Kevin Mahoney -- kmahoney@mahoney-law.net --
Katherine J. Odenbreit -- kodenbreit@mahoney-law.net -- and Atoy H.
Wilson -- awilson@mahoney-law.net -- for Plaintiff and Appellant.
Law Office of James M. Gilbert, James M. Gilbert --
jgilbert@gilbert-legal.com; Law Offices of Darren D. Daniels and
Darren D. Daniels -- darrenddaniels@dddlaw.com -- for Defendant and
Respondent.
MY MIXTAPEZ: Spencer-Ruper Sues Over Unsolicited Text Messages
--------------------------------------------------------------
Joan Spencer-Ruper, individually and on behalf of all others
similarly situated v. MY MIXTAPEZ, INC. D/B/A MY MIXTAPEZ, DUENAS
MOBILE APPLICATIONS LLC D/B/A VUZIQ, AND D/B/A MY MIXTAPEZ, JUAN
CARLOS DUENAS, RICKY DUENAS, AND DANNY DUENAS, Case No.
8:20-cv-00619 (C.D. Cal., March 30, 2020), is brought to secure
redress from the Defendants' violations of the Telephone Consumer
Protection Act resulting from repeated text messages made by or
behalf of the Defendants to the cellular telephones of the
Plaintiff and others using an automatic telephone dialing system.
The Plaintiff contends that the Defendants' text messages, (a)
annoyed, disturbed, and harassed Plaintiff, (b) intruded upon her
solitude and seclusion, (c) invaded her privacy, (d) wasted her
time, and (e) diminished her cellular telephone's battery. The text
messages made to the Plaintiff and the Class Members were for the
purpose of marketing, advertising, and promoting the Defendants'
app or services.
The Plaintiff says she did not provide the Defendants or their
agents prior express consent to receive text message to her
cellular telephone. The Defendants were aware that they were
sending text messages to the Plaintiff and other persons without
their prior express consent, says the complaint.
Plaintiff Joan Spencer-Ruper resides in Orange County, California.
The Defendants own, manage, run, or operate "MyMixtapez," which is
a hip-hop mixtape app for Android, iPhone, and Windows operating
systems.[BN]
The Plaintiff is represented by:
Seth M. Lehrman, Esq.
EDWARDS POTTINGER LLC
425 North Andrews Avenue, Suite 2
Fort Lauderdale, FL 33301
Phone: 954-524-2820
Facsimile: 954-524-2822
Email: seth@epllc.com
NAMASTE TECH: Securities Suit Settlement Gets Final Court Approval
------------------------------------------------------------------
In the case, In re NAMASTE TECHNOLOGIES INC. SECURITIES LITIGATION,
Case No. 1:18-CV-10830-GHW (S.D. N.Y.), Judge Gregory H. Woods of
the U.S. District Court for the Southern District of New York fully
and finally approved the settlement set forth in the Stipulation
and Agreement of Settlement dated Oct. 25, 2019.
The Parties have entered into the Settlement, that provides for a
complete dismissal with prejudice of the claims asserted against
the Defendants in the Action on the terms and conditions set forth
in the Stipulation, subject to the approval of the Court.
By order dated Oct. 25, 2019, the Court: (a) preliminarily approved
the Settlement; (b) certified the Settlement Class solely for
purposes of effectuating the Settlement; (c) ordered that notice of
the proposed Settlement be provided to potential Settlement Class
Members; (d) provided Settlement Class Members with the opportunity
either to exclude themselves from the Settlement Class or to object
to the proposed Settlement; and (e) scheduled a hearing regarding
final approval of the Settlement.
The Court conducted the Settlement Hearing on March 11, 2020.
Having reviewed and considered the Stipulation, all papers filed
and proceedings held herein in connection with the Settlement, all
oral and written comments received regarding the Settlement, and
the record in the Action, and good cause appearing therefor, Judge
Woods affirmed the Court's determinations in the Preliminary
Approval Order certifying, for the purposes of the Settlement only,
the Action as a class action pursuant to Rules 23(a) and (b)(3) of
the Federal Rules of Civil Procedure on behalf of the Settlement
Class consisting of all persons and entities who or which purchased
or otherwise acquired shares of Namaste common stock traded on the
over-the-counter market between Nov. 29, 2017 and March 6, 2019,
inclusive, and were allegedly damaged thereby.
Pursuant to, and in accordance with, Rule 23 of the Federal Rules
of Civil Procedure, Judge Woods fully and finally approved the
Settlement set forth in the Stipulation in all respects (including,
without limitation: the amount of the Settlement; the Releases
provided for therein; and the dismissal with prejudice of the
claims asserted against Defendants in the Action). The Parties are
directed to implement, perform and consummate the Settlement in
accordance with the terms and provisions contained in the
Stipulation.
The Action and all of the claims asserted against Defendants in the
Action by the Plaintiffs and the other Settlement Class Members are
hereby dismissed with prejudice. The Parties will bear their own
costs and expenses, except as otherwise expressly provided in the
Stipulation.
The formula for the calculation of the claims of Claimants as set
forth in the Plan of Allocation submitted by the Lead Counsel, as
described in the Notice and in accordance with paragraph 1(hh) of
the Stipulation, is approved as fair, reasonable and adequate. Any
orders regarding the Plan of Allocation will not affect or delay
the Effective Date of the Settlement.
Judge Woods awarded the Lead Counsel attorneys' fees in the amount
of $915,750, together with the interest earned thereon for the same
time period and at the same rate as that earned on the Settlement
Fund until paid, and expenses in an amount of $51,440.91. Said
fees will be allocated among any other Plaintiffs' counsel in a
manner which, in the Lead Counsel's good-faith judgment, reflects
each counsel's contribution to the institution, prosecution, and
resolution of the Litigation.
The Judge also awarded Plaintiffs Janita Holgate, Linda M. Rich and
Plaintiff Minako Caddeo their reasonable costs and expenses
directly related to her representation of the Settlement Class in
the amount of $3,000, each.
The awarded attorneys' fees and expenses, and interest earned
thereon, as well as any costs or expenses awarded pursuant to the
previous paragraph, will be paid to the Lead Counsel (or to the
Plaintiffs) from the Settlement Fund immediately after the date the
Judgment is executed subject to the terms, conditions, and
obligations of the Stipulation. Any awards of attorneys' fees and
expenses, as well as any costs or expenses awarded pursuant to the
previous paragraph, will in no way affect or delay the finality of
this Judgment and will not affect or delay the Effective Date of
the Settlement.
If the Settlement is terminated as provided in the Stipulation or
the Effective Date of the Settlement otherwise fails to occur, the
Judgment will be vacated, rendered null and void and be of no
further force and effect, except as otherwise provided by the
Stipulation, and the Judgment will be without prejudice to the
rights of the Plaintiffs, the other Settlement Class Members and
the Defendants, and the Parties will revert to their respective
positions in the Action as of July 26, 2019, as provided in the
Stipulation.
There is no just reason to delay the entry of this Judgment as a
final judgment in the Action. Accordingly, the Clerk of the Court
is expressly directed to immediately enter the final judgment in
the Action.
A full-text copy of the Court's March 11, 2020 Final Judgment is
available at https://is.gd/wOLMFS from Leagle.com.
JJanita Holgate, Linda M. Rich & Minako Caddeo, Lead Plaintiffs,
represented by Brenda F. Szydlo -- bszydlo@pomlaw.com -- Pomerantz
LLP & Jeremy Alan Lieberman -- jalieberman@pomlaw.com -- Pomerantz
LLP.
Willard Workman, individually and on behalf of all others similarly
situated, Plaintiff, represented by Brenda F. Szydlo, Pomerantz
LLP, Jeremy Alan Lieberman, Pomerantz LLP & Joseph Alexander Hood,
II -- ahood@pomlaw.com -- Pomerantz LLP.
James Taylor, Movant, represented by Joseph R. Seidman --
Seidman@bernlieb.com -- Bernstein Liebhard, LLP.
Namaste Technologies Inc., Sean Dollinger, Philip Van Den Berg &
Kenneth Ngo, Defendants, represented by Douglas W. Greene --
dgreene@bakerlaw.com -- Baker & Hostetler LLP, Jessie Morgan
Gabriel -- jgabriel@bakerlaw.com -- Baker & Hostetler LLP & Tiffany
Anna Miao -- tmiao@bakerlaw.com -- Baker & Hostetler LLP.
NAVIENT SOLUTIONS: Panzarellas Seek Class Action Certification
--------------------------------------------------------------
In the class action lawsuit styled ELIZABETH PANZARELLA and JOSHUA
PANZARELLA, individually and on behalf of all others similarly
situated v. NAVIENT SOLUTIONS, LLC, Case No. 2:18-cv-03735-PBT
(E.D. Pa.), the Plaintiffs move the Court for an order certifying
this case as a class action.
Navient Solutions provides financial services. The company offers
consumer loans, asset management, repayment plans, and business
processing solutions to education, healthcare, and government
clients at the federal, state, and local levels.[CC]
The Plaintiffs are represented by:
James A. Francis, Esq.
David A. Searles, Esq.
FRANCIS MAILMAN SOUMILAS, P.C.
1600 Market Street, Suite 2510
Philadelphia, PA 19103
- and -
Robert P. Cocco, Esq.
ROBERT P. COCCO, P.C.
1500 Walnut Street, Suite 900
Philadelphia, PA 19102
Telephone: (215) 351-0200
- and -
David P. Mitchell, Esq.
MANEY & GORDON, P.A.
101 East Kennedy Blvd., Suite 3170
Tampa, FL 33602
Telephone: (813) 221-1366
Facsimile: (813) 223-5920
E-mail: David@MitchellConsumerLaw.com
NEW YORK, NY: Bid to Bifurcate Discovery in EMS Union Suit Denied
-----------------------------------------------------------------
In the case, LOCAL 3621, EMS OFFICERS UNION, DC-37, AFSCME,
AFL-CIO, et al., Plaintiffs, v. THE CITY OF NEW YORK, et al.,
Defendants, Civil Action No. 18 Civ. 4476 (LJL) (SLC) (S.D. N.Y.),
Magistrate Judge Sarah L. Cave of the U.S. District Court for the
Southern District of New York denied the Defendants' request to
bifurcate class certification.
The Plaintiffs, a union and two employees of the New York City Fire
Department ("FDNY") bring the putative class action against the
City of New York, the FDNY, the Department of Citywide
Administrative Services ("DCAS"), and several John and Jane Does,
alleging that employees in the FDNY's Emergency Medical Services
Bureau ("EMS") who seek promotions above the rank of lieutenant are
subject to disparate treatment and disparate impact based on
impermissible considerations. The Plaintiffs assert claims under
42 U.S.C. Sections 1981 and 1983, and the New York State and New
York City Human Rights Laws.
On May 21, 2018, the Plaintiffs commenced the action with the
filing of the Complaint. On Oct. 4, 2018, Judge Paul G. Gardephe
held an initial conference during which he informed the parties of
the grounds on which he was likely to deny any motion to dismiss
the Defendants might file.
Following the conference, the Defendants elected not to move to
dismiss and instead answered the Complaint. The matter was
automatically referred to the Court's Alternative Dispute
Resolution Program, during which the parties were to engage in
targeted, core discovery. Disputes arose concerning the scope of
the discover, which Judge Gardephe referred to Judge Henry B.
Pitman.
On March 11, 2019, following a telephone conference and exchange of
letters, Judge Pitman held a lengthy hearing in which he addressed
and resolved many of the parties' disputes concerning the discovery
that was to be exchanged for mediation purposes. Judge Pitman held
a further telephone conference to resolve the parties'
disagreements concerning the protective order applicable to the
action. At the Defendants' request, the mediation referral was
adjourned until class certification was decided. The Defendants
also asked Judge Gardephe to issue a revised case management plan
that bifurcated class certification discovery and merits discovery.
The Plaintiffs opposed bifurcation.
Following Judge Pitman's retirement, Judge Gardephe referred the
matter to Magistrate Judge Cave for general pretrial supervision,
including all discovery disputes. On Dec. 19, 2019, Judge Gardephe
held an in-person conference during which he heard argument from
the parties concerning bifurcation of discovery and referred that
issue to the Court for resolution.
On Dec. 20, 2019, the Court issued an order scheduling a discovery
conference and ordering the parties to submit a joint proposed
schedule for the remainder of discovery as well as a status report
regarding outstanding discovery. On Jan. 13, 2020, the Court
conducted a telephone conference, following which it issued an
order setting a further conference and directing the parties each
to submit a statement concerning two categories of remaining
discovery: (1) discovery requests made to the opposing party to
which no response has been submitted or to which the response is
deficient; and (2) any discovery requests made by the opposing
party to which the party has objected.
Following the parties' submissions, on Jan. 29, 2020, the Court
held yet another conference to address the scope and timing of
discovery, after which the parties made their final submissions
regarding outstanding discovery disputes. On March 5, 2020, the
Court conducted a telephone conference during which it heard
argument from the parties on the two issues addressed in the Order,
that is, the Plaintiffs' request for production of similar
discrimination complaints and the Defendants' request for
bifurcation. The parties ask the Court now to resolve two issues:
(1) the scope of information Defendants must produce concerning
other discrimination complaints; and (2) whether merits discovery
in the matter should be bifurcated and held in abeyance until after
class certification.
Having heard the arguments of the parties across three conferences,
reviewed the transcripts of prior proceedings before Judge Gardephe
and Judge Pitman, and reviewed the full record in the action, and
Magistrate Judge Cave will order that (1) the Defendants must
produce, for the time period 2012 to the present, all formal
internal and administrative complaints -- whether or not they were
subsequently substantiated -- as well as all jury verdicts and
settlements resulting from claims of discrimination based on race,
gender, or disability and claims of retaliation from the use of
Family Medical Leave Act ("FMLA") or other medical leave in the EMS
promotional process, and (2) the limited merits discovery will
continue pending briefing and a ruling on the Plaintiffs'
anticipated motion for class certification.
As for the Plaintiffs' Request for Other Complaints of
Discrimination, the Magistrate Judge finds that to the extent that
theDefendants resist the discovery on grounds of burden, they must
show the nature and extent of the burden. The Defendants do not
detail the overall volume of the documents to be searched, where
they are located, or in what form. Furthermore, with the date
range limitation the Court imposes, the burden on the Defendants
will necessarily be minimized.
She also finds that the Defendants' proposed limitation is
reasonable. Limiting the time period for the request to 2012 to
the present is proportionate to the important issues at stake in
the action balanced against the potential burden to the Defendants.
Turning to the Bifurcation of Discovery request, Magistrate Judge
Cave finds that the Defendants have not met their burden of showing
good cause to bifurcate merits discovery altogether, but she will
exercise discretion to narrow the scope of merits discovery that
will proceed during the pendency of the motion for class
certification. It is not appropriate to bifurcate and stay merits
discovery pending briefing and resolution of the Plaintiffs'
anticipated motion for class certification.
In a further exercise of discretion over the scope and process for
discovery, the Magistrate Judge places two limits on merits
discovery while the class certification motion is pending. First,
consistent with her ruling, merits discovery will be limited to the
period 2012 to the present. Second, merits discovery will be
limited to information relevant to the discrimination Mascol and
Rodriguez allege with respect to themselves, that is,
discrimination based on race, gender, and medical leave. She finds
that these temporary limitations adequately balance the search for
information relevant to the Plaintiffs' claims in a manner that is
proportional to the current needs of the case while minimizing the
burden on Defendants.
For the reasons set forth, Magistrate Judge Cave directed the
Defendants must produce all formal internal and administrative
complaints, substantiated or unsubstantiated, and/or jury verdicts,
as well as any settlements, resulting from claims of race, gender,
and disability discrimination in the EMS promotional process, and
claims of retaliation from the use of FMLA or other medical leave
when considering candidates for EMS promotion for the time period
of 2012 to present.
She denied the Defendants' request to bifurcate class certification
discovery from merits discovery. Merits discovery (a) directed to
the Plaintiffs' race, gender, and medical leave discrimination
claims, and (b) limited to the time period 2012 to the present,
will proceed pending briefing and resolution of the Plaintiffs'
motion for class certification.
The parties were instructed to complete class certification
discovery by March 29, 2020. By Monday March 16, the parties were
to submit for Judge Lewis J. Liman's approval a joint proposed
scheduling order including a briefing schedule for class
certification and remaining case management deadlines in accordance
with Judge Liman's Individual Practices.
A full-text copy of the Court's March 11, 2020 Memorandum Opinion &
Order is available at https://is.gd/iK8evp from Leagle.com.
Local 3621, EMS Officers Union, DC-37, AFSCME, AFL-CIO,
individually and on behalf of its members & Renae Mascol, on behalf
of themselves and all other similarly-situated individuals,
Plaintiffs, represented by Brian A. Jasinski, The Kurland Group &
Yetta G. Kurland -- Kurland@kurlandgroup.com -- The Kurland Group.
Luis Rodriguez, on behalf of themselves and all other
similarly-situated individuals, Plaintiff, represented by Yetta G.
Kurland, The Kurland Group.
City Of New York, New York City Fire Department & Department of
Citywide Administrative Services, Defendants, represented by Donna
Anne Canfield, New York City Law Dept..
NISSAN NORTH: Pascal Liability Suit Removed to C.D. California
--------------------------------------------------------------
The lawsuit syled as CRISTIAN PASCAL and MARIA MENGONI v. NISSAN
NORTH AMERICA, INC.; NISSAN MOTOR CO., LTD.; and DOES 1 through 20,
inclusive, Case No. 30-02019-01085127 (Filed July 22, 2019), was
removed from the California Superior Court, Orange Cty., to the
U.S. District Court for the Central District of California on March
11, 2020.
The Central District of California Court Clerk assigned Case No.
8:20-cv-00492 to the proceeding. The case is assigned to the Hon.
Judge Josephine L. Staton.
The Plaintiff alleges that Nissan has engaged in and continues to
engage in unfair or deceptive acts or practices that violate
California Legal Remedies Act by failing to disclose and actively
concealing the Nissan vehicles' defects; marketing the Nissan
vehicles as safe when they are not; and advertising the Nissan
vehicles with the intent not to sell or lease them as advertised.
Nissan Motor, usually shortened to Nissan, is a Japanese
multinational automobile manufacturer headquartered in Nishi-ku,
Yokohama. The company sells its cars under the Nissan, Infiniti,
and Datsun brands with in-house performance tuning products
labelled Nismo. Nissan North, doing business as Nissan USA, is the
North American headquarters, and a wholly owned subsidiary of
Nissan Motor.[BN]
The Plaintiffs are represented by:
Todd A. Walburg, Esq.
John R. Parker, Jr., Esq.
CUTTER LAW, P.C.
401 Watt Avenue
Sacramento, CA 95864
Telephone: (916) 290-9400
Facsimile: (916) 441-3838
E-mail: twalburg@cutterlaw.com
jparker@cutterlaw.com
O'REILLY AUTOMOTIVE: Faces Morfin Suit Over Unpaid Overtime Wages
-----------------------------------------------------------------
JERRY MORFIN, on behalf of himself and all similarly situated
persons, and the general public v. O'REILLY AUTOMOTIVE STORES,
INC.; O'REILLY AUTOMOTIVE, INC., and DOES 1 through 25, inclusive,
Case No. 37-2020-00013456-CU-OE-CTL (Cal. Super., San Diego Cty.,
March 11, 2020), alleges that the Defendants violated the
California Labor Code by failing to pay overtime, to provide meal
periods and rest periods, and to provide wage statements.
The Plaintiff contends that he and all similarly situated persons
worked in excess of eight hours in a day or 40 hours per workweek.
He adds that the Defendants required him and the class to work but
did not pay him and the class for all hours worked on any given day
or in any given workweek.
The Plaintiff and all other similarly situated employees were
employed by the Defendants in non-exempt, non-managerial positions
and similar to the Plaintiff's position.
O'Reilly offers replacements parts, fluids and chemicals,
performance, accessories, and tools.[BN]
The Plaintiff is represented by:
Reuben D. Nathan, Esq.
NATHAN & ASSOCIATES, APC
2901 W. Coast Highway, Suite 200
Newport Beach, CA 92663
Telephone: (949) 270-2798
Facsimile: (949) 209-0303
E-mail: rnathan@nathanlawpractice.com
- and -
Pratik H. Shah, Esq.
D'EGIDIO SHAH & TOWNSEND, APC
7801 Mission Center Court, Suite 240
San Diego, CA 92108
Telephone: (619) 550-3011
Facsimile: (877) 888-6304
E-mail: pshah@dstlawfirm.com
ONEBEACON INSURANCE: Faces MSP Recovery Suit in M.D. Florida
------------------------------------------------------------
MSP Recovery Claims, Series LLC, a Delaware entity, on behalf of
itself and all others similarly situated v. OneBeacon Insurance
Group, Ltd, Atlantic Specialty Insurance Company, Homeland
Insurance Company of Delaware, Homeland Insurance Company of New
York, OBI America Insurance Company, OBI National Insurance
Company, Case No. 6:20-cv-00553-RBD-EJK (M.D. Fla., March 30,
2020), seeks redress for the Defendants' flagrant and systematic
failure to comply with the Medicare Secondary Payer Act.
According to the complaint, the Defendants (which are liability
insurers) have systematically and uniformly failed to honor their
primary payer obligations under the MSP Law, by failing to pay for
or reimburse medical expenses resulting from injuries sustained in
accidents (the "accident-related medical expenses") that should
have been paid by the Defendants but, instead, were paid by
Medicare and/or Medicare Advantage Organizations ("MAOs"). As a
result, the costs of those accident-related medical expenses have
been borne by Medicare and MAOs to the detriment of the Medicare
fund and the public.
The Plaintiff contends that the Defendants have failed to fulfill
statutory duties as a primary payer. Specifically, the Defendants
have systematically and uniformly failed to pay or reimburse
conditional payments by the Plaintiff and Class Members on behalf
of Enrollees for accident-related medical expenses that should have
been covered by the Defendants. The Enrollees are Medicare
beneficiaries, who were enrolled in Medicare Advantage health plans
offered or managed by the Plaintiff's Assignors and Class Members,
all of which are MAOs. The Plaintiff's Assignors and the Class
Members suffered an injury-in-fact from the Defendants' failure to
reimburse and, accordingly, have standing to sue, says the
complaint.
Plaintiff MSPRC is a Delaware series limited liability company with
a principal place of business located in Miami, Florida.
Onebeacon Insurance Group is a Massachusetts company.[BN]
The Plaintiff is represented by:
Francesco Zincone, Esq.
ARMAS BERTRAN PIERI
4960 S.W. 72nd Avenue, Suite 206
Miami, FL 33155
Phone: 305-461-5100
Email: fzincone@armaslaw.com
OPHTHOTECH CORP: Court Enters Protective Order in Micholle Suit
---------------------------------------------------------------
Judge Vernon S. Broderick of the U.S. District Court for the
Southern District of New York has entered a Stipulated Protective
Order in the case, FRANK MICHOLLE, Individually and on Behalf of
All Others Similarly Situated, Plaintiff, v. OPHTHOTECH
CORPORATION, DAVID R. GUYER and SAMIR PATEL, Defendants, Civil
Action No. 1:17-cv-00210-VSB (Consolidated) (S.D. N.Y.).
Pursuant to Federal Rule of Civil Procedure 26(c), the Parties
requested that the Court issues a protective order to protect
certain confidential, proprietary, or private information that may
be produced in the course of discovery in the Action, and to guard
against the waiver of attorney-client privilege, work product
protection pursuant to Federal Rule of Evidence 502(d), and other
applicable privileges. The Parties stipulated to the terms
governing the pre-trial phase of the Action.
If a Designating Party designates Discovery Material as
Confidential on the basis that it is subject to protection under
applicable law, the Designating Party shall, upon request, disclose
to the Receiving Party the applicable law that the Designating
Party in good faith believes constitutes the basis for such
designation.
Any person subject to the Order who receives from any Producing
Party Discovery Material that is designated as "Confidential" will
not disclose such Confidential Discovery Material, except as
expressly permitted. Any violation of the terms of the Order will
be punishable by relief the Court deems appropriate.
The Order does not apply to any information or material that: (i)
was, is or becomes public knowledge other than through a breach of
this Order; (ii) is acquired or learned by the Receiving Party
independent of discovery in this Action; or (iii) is required by
law to be made available to third Parties.
In the event additional Parties join or are joined in the Action,
the newly-joined Party will not have access to Confidential
Discovery Material until its counsel has executed and, at the
request of any Party, filed with the Court, its agreement to be
fully bound by the Order.
Unless applicable rules of the Court provide for different notice,
if any Receiving Party plans to utilize any Confidential Discovery
Material at a court hearing or pretrial conference, that Receiving
Party will use reasonable efforts to inform the Producing and/or
Designating Party of its intent to use such information in advance
of the court appearance, without being obligated to identify the
particular Confidential Discovery Material to be used. Whether or
not any such advance notice is given, the Receiving Party will
provide the Producing Party and/or Designating Party with an
opportunity to approach the Court in confidence, whether in
chambers or sidebar or such other method as the Court will direct,
regarding the use of the Confidential Discovery Material before
reference is made to any such Confidential Discovery Material. The
provision is not intended to prohibit counsel from selecting and
using Confidential Discovery Material for any court hearing or
conference.
A Party or Non-Party may object to the designation of Discovery
Material as "Confidential" at any time. Failure to do so at the
time of the designation does not operate as a waiver of any
Receiving Party's right to challenge the "Confidential" designation
of any Discovery Material by any Designating Party.
Within 60 days after receiving notice of entry of an order,
judgment or decree finally ending the Action, including, without
limitation, any appeals therefrom, or the running of time to take
such an appeal, if later, all persons having received Confidential
Discovery Material will make commercially reasonable efforts to
identify and destroy all such Confidential Discovery Material,
including all copies thereof and information derived therefrom, or
return such materials to counsel for the Producing Party.
The Order will become effective as a stipulation among the Parties
immediately upon its execution, even if not yet entered by the
Court.
A full-text copy of the Court's March 11, 2020 Order is available
at https://is.gd/UdwKQU from Leagle.com.
Sheet Metal Workers' Pension Plan of Southern California, Arizona
and Nevada, Lead Plaintiff, represented by David Avi Rosenfeld --
DRosenfeld@rgrdlaw.com -- Robbins Geller Rudman & Dowd LLP, Erin
Whitney Boardman -- eboardman@rgrdlaw.com -- Robbins Geller Rudman
& Dowd LLP & Lindsay La Marca -- LLaMarca@rgrdlaw.com -- Robbins
Geller Rudman & Dowd LLP.
Frank Micholle, Individually and on behalf of All Others Similarly
Situated, Plaintiff, represented by Shannon Lee Hopkins --
shopkins@zlk.com -- Levi & Korsinsky, LLP.
Ophthotech Corporation, David R. Guyer & Samir Patel, Defendants,
represented by Fraser Lee Hunter, Jr. --
FRASER.HUNTER@WILMERHALE.COM -- Wilmer Cutler Pickering Hale &
Dorr
LLP, Jeremy Todd Adler -- JEREMY.ADLER@WILMERHALE.COM -- Wilmer
Cutler Pickering Hale & Dorr LLP & Michael G. Bongiorno --
MICHAEL.BONGIORNO@WILMERHALE.COM -- Wilmer Cutler Pickering Hale
and Dorr LLP.
PENNSYLVANIA: Prison Society Files Suit in Pennsylvania Sup. Ct.
----------------------------------------------------------------
A lawsuit has been filed against Commonwealth of Pennsylvania, et
al. The case is styled as In re: the Petition of the Pennsylvania
Prison Society, Brian McHale, Jeremy Hunsicker, Christopher Aubry,
Michael Foundos, and Frederick Leonard, on behalf of all similarly
situated individuals, Public Defender Association of Pennsylvania,
Petitioners v. Commonwealth of Pennsylvania, Tom Wolf, Department
of Corrections, Pennsylvania District Attorney's Association,
Administrative Office of Pennsylvania Courts, Respondents, Case No.
70 MM 2020 (Pa. Sup., March 30, 2020).
The case type is stated as "Other."
Pennsylvania, officially the Commonwealth of Pennsylvania, is a
state located in the Northeastern, Great Lakes, Appalachian, and
Mid-Atlantic regions of the United States.[BN]
The Petitioners are represented by:
Michael Daley, Esq.
ADMINISTRATIVE OFFICE OF PENNSYLVANIA COURTS
ADMIN OFFICE OF PA COURTS
1515 Market St., Ste. 1414
Philadelphia, PA 19102
Phone: (215) 560-6300
- and -
Witold J. Walczak, Esq.
AMERICAN CIVIL LIBERTIES UNION OF PENNSYLVANIA
P.O. Box 60173
Philadelphia, PA 19102
Phone: (215) 592-1513
- and -
Nyssa E. Lor, Esq.
Hayden Reid Nelson-Major, Esq.
AMERICAN CIVIL LIBERTIES UNION OF PENNSYLVANIA
ACLU-PA
P.o. Box 60173
Philadelphia, PA 19102
Phone: (215) 592-1513
- and -
Ali Nicole Szemanski, Esq.
ACLU OF PENNSYLVANIA, ET AL
247 Fort Pitt Blvd.
Pittsburgh, PA 15222
Phone: (412) 681-7736
- and -
David Rudovsky, Esq.
Paul M. Messing, Esq.
Susan Mon-Yi Lin,
Jonathan Howard Feinberg,
KAIRYS, RUDOVSKY, MESSING, FEINBERG & LIN, LLP
718 Arch St., Ste. 501 S
Philadelphia, PA 19106
Phone: (215) 925-4400
- and -
Brian L. Deiderick, Esq.
LEBANON COUNTY PUBLIC DEFENDER'S OFFICE
LEBANON CO PD'S OFFICE
400 S 8th St.
Lebanon, PA 17042-6794
Phone: (717) 228-442
The Respondents are represented by:
Keli Marie Neary, Esq.
Joshua D. Shapiro, Esq.
PENNSYLVANIA OFFICE OF ATTORNEY GENERAL
PA ATTORNEY GENERAL CIVIL LAW
Strawberry Sq., 15th Fl.
Harrisburg, PA 17120-0001
Phone: (717) 787-1180
- and -
Gregory George Schwab, Esq.
PENNSYLVANIA OFFICE OF GENERAL COUNSEL
GOVERNOR'S OFFICE OF GENERAL COUNSEL
333 Market St., 17th Fl.
Harrisburg, PA 17126-0333
Phone: (717) 787-9354
- and -
Theron Richard Perez, Esq.
PENNSYLVANIA DEPARTMENT OF CORRECTIONS
PA DEPT OF CORRECTIONS OCC
1920 Technology Pkwy.
Mechanicsburg, PA 17050-8507
Phone: (717) 728-2574
- and -
Jill Marie Graziano, Esq.
PENNSYLVANIA DISTRICT ATTORNEYS ASSOCIATION
2929 N. Front Street
Harrisburg, PA 17110
Phone: (717) 231-5416
PEORIA DISPOSAL: Stinson Seeks to Recover Unpaid Overtime Wages
---------------------------------------------------------------
Helen Stinson, Individually and on behalf of all others similarly
situated v. PEORIA DISPOSAL COMPANY and AREA DISPOSAL SERVICE,
INC., Case No. 1:20-cv-01130-MMM-JEH (C.D. Ill., March 30, 2020),
is brought to recover overtime wages, liquidated damages, and
attorneys' fees and costs pursuant to the provisions of the Fair
Labor Standards Act of 1938, the Illinois Minimum Wage Law, and the
Illinois Wage Payment and Collection Act.
The Plaintiff routinely worked (and continue to work) in excess of
40 hours per week. The Defendants have knowingly and deliberately
failed to compensate the Plaintiff for all hours worked in excess
of forty each week on a routine and regular basis, says the
complaint.
The Plaintiff was employed by the Defendants in customer service.
Defendants PDC and ADS are a full-service solid waste company
providing waste collection, recycling, and disposal services to a
commercial, industrial, and residential customers across the states
of Illinois and Missouri.[BN]
The Plaintiffs are represented by:
Ryan F. Stephan, Esq.
James B. Zouras, Esq.
Anna M. Ceragioli, Esq.
STEPHAN ZOURAS, LLP
100 N. Riverside Plaza, Suite 2150
Chicago, IL 60606
Phone: (312) 233-1550
Fax: (312) 233-1560
Email: rstephan@stephanzouras.com
jzouras@stephanzouras.com
aceragiol@stephanzouras.com
- and –
Clif Alexander, Esq.
Austin Anderson, Esq.
ANDERSON ALEXANDER, PLLC
819 North Upper Broadway
Corpus Christi, TX 78401
Phone: (361) 452-1279
Facsimile: (361) 452-1284
Email: cliff@a2xlaw.com
austin@a2xlaw.com
PLANTRONICS INC: Settlement in Shin Fraud Suit Has Final Approval
-----------------------------------------------------------------
In the case, PHIL SHIN, Plaintiff, v. PLANTRONICS, INC., Defendant,
Case No. 18-cv-05626-NC (N.D. Cal.), Magistrate Judge Nathanael M.
Cousins of the U.S. District Court for the Northern District of
California granted Shin's motion for final approval of a proposed
class action settlement between Defendant Plantronics and a class
of Plantronics headphone purchasers.
Shin also moves for attorneys' fees. The Court will address the
attorneys' fees motion in a separate order.
Shin accuses Defendant Plantronics of selling defective BackBeat
FIT wireless headphones, marketing them as "sweatproof" and
"waterproof" when they are not. In 2018, Shin brought the class
action lawsuit bringing various consumer class claims.
The parties settled on March 28, 2019, and Shin filed a motion for
preliminary approval on May 24, 2019. On July 31, 2019, Shin moved
for preliminary approval of their amended class action settlement.
The Court granted preliminary approval of the amended settlement on
Aug. 13, 2019.
The Settlement seeks to settle claims for a proposed settlement
class of all Persons domiciled within the United States and its
territories who purchased at retail the Headphones during the
period of time from April 1, 2014 through the Notice Date.
The Class members are entitled to one of three alternative
remedies:
a. Alternative 1 is an extended limited warranty that runs
from the effective date of the Settlement. This
alternative is limited to the class members who
purchased Headphones after Jan. 1, 2018. Under the
extended warranty, the class members may receive a
functional replacement if their Headphones suffers from
a battery, battery charging, battery performance,
waterproofing, moisture, or sweat-proofing issue.
b. Alternative 2 is a $50 cash payment. To qualify for
this alternative, the class members must provide proof
of purchase and evidence that they had previously
complained to Plantronics that their Headphones did not
function properly due to a battery, battery charging,
battery performance, waterproofing, moisture, or
sweat-proofing issue.
c. Alternative 3 is a $25 cash payment. Under this
alternative, the class members must provide proof of
purchase and only need to attest that their Headphones
malfunctioned or failed to work properly due to a
battery, battery charging, battery performance,
waterproofing, moisture, or sweat-proofing issue.
In return, the class members who do not opt out of the settlement
agree to release all claims relating to "the Headphones' battery,
battery performance, ability to retain a charge, or the Headphones'
resistance to water, moisture, or sweat" and Plantronics's
advertising relating to the Headphones. Other claims are not
waived.
Under the Settlement, the Settlement Administrator is responsible
for providing notice. A full Settlement Notice and Short Form
Notice was sent to individuals who purchased or registered their
Headphones from Plantronics, and reasonably identifiable
individuals who purchased the Headphones from third parties.
Pursuant to the Settlement, Class Counsel subpoenaed third-party
retailers for contact information for customers who purchased the
Headphones. In addition, the Settlement Administrator also
published the Settlement Notice and currently maintains a website
for class members to submit claims.
The parties seek to certify a settlement class of all Persons
domiciled within the United States and its territories who
purchased at retail Plantronics BackBeat FIT wireless headphones,
version Genesis or 16M, between April 1, 2014 and Sept. 16, 2019.
Magistrate Judge Cousins finds that the settlement class satisfies
both Rule 23(a) and Rule 23(b)(3). Numerosity is met given that
the proposed class has over one million members. Such a large
class strongly suggests that a class action and class settlement
are superior to other means of resolution. Commonality is also
satisfied. There are common questions, for example, as to whether
the Headphones are defective and whether Plantronics's
representations were misleading. These common questions are central
to this lawsuit and predominate over individual questions. Shin is
also typical of the class because he purchased the allegedly
defective Headphones and suffered the same injuries. There is also
no indication that the Class Counsel or Shin had any conflicts of
interest with the class. Rather, the Class Counsel and Shin's
representation of the class was adequate. Accordingly, the
Magistrate Judge grants class certification of the settlement
class.
Next, the Magistrate Judge finds that the Settlement is fair,
reasonable, and adequate and GRANTS final approval of the
Settlement. First, the lawsuit settled before the merits of Shin's
claims could be tested. Second, the risk, expense, complexity, and
likely duration of further litigation weigh in favor of approval.
Third, the risk of maintaining class action status throughout the
class action is unclear as a class had not yet been certified.
Fourth, the Settlement provides significant relief to the class.
Fifth, the settlement was reached before Plantronics's motion to
dismiss was adjudicated. Sixth, the counsel for both parties are
experienced class action attorneys and view the Settlement
favorably. Seventh, there is no government participant. Eigth,
the reactions of the class members suggest that approval is
warranted. Finally, there is no evidence of collusion between Shin
and Plantronics.
Only one objection was made to the Settlement. Class member Troy
Scheffler mailed his objection to the claims administrator on Nov.
22, 2019, and filed it with the Court on Dec. 2, 2019.
Scheffler's objection is groundless. First, Scheffler's objection
was untimely. The Court did not receive Scheffler's objection
until Dec. 2, 2019. In any case, Scheffler's objection fails on
the merits.
For the foregoing reasons, Magistrate Judge Cousins granted the
Plaintiffs' Motion for Final Approval of Settlement. The Judge
finally approved the Settlement in the form contemplated by the
Settlement Agreement. All valid Claims must be paid according to
the terms of and by the deadlines set forth in the Settlement.
The Magistrate Judge discharged and released the Released Parties
from all Settled Class Claims as those terms are defined in the
Settlement. The parties must file a joint status report regarding
the disbursement of the class members' claims, broken down by claim
amount, within 60 days of the order.
A full-text copy of the Court's Jan. 31, 2020 Order is available at
https://is.gd/WYkORY from Leagle.com.
Phil Shin, on behalf of himself and all others similarly situated,
Plaintiff, represented by Ronald Scott Kravitz –
kravitz@sfms.com
-- Shepherd, Finkelman, Miller & Shah, LLP, James C. Shah –
jshah@sfms.com -- Shepherd Finkelman Miller & Shah, LLP, Jeffrey
Scott Goldenberg -- jgoldenberg@gs-legal.com -- Goldenberg
Schneider, LPA, pro hac vice, Justin Charles Walker --
jwalker@msdlegal,com -- Markovits, Stock & DeMarco, LLC, Paul
Michael DeMarco -- pdemarco@msdlegal.com -- Markovits Stock
DeMarco, pro hac vice, Terence Richard Coates --
tcoates@msdlegal.com Markovits, Stock & DeMarco, LLC, pro hac
vice, Todd Benjamin Naylor -- tnaylor@gs-legal.com -- Goldenberg
Schneider, LPA, pro hac vice & Wilbert Benjamin Markovits --
bmarkovits@msdlegal.com -- Markovits, Stock & DeMarco LLC, pro hac
vice.
Plantronics, Inc., Defendant, represented by Darren Keith Cottriel
-- dcottriel@jonesday.com -- Jones Day & Dayme Sanchez --
daymesanchez@jonesday.com -- Jones Day.
PROFESSIONAL ACCOUNT: Lange FDCPA Suit Dismissed with Prejudice
---------------------------------------------------------------
In the case, KEITH JAMES LANGE, individually and on behalf of all
others similarly situated, Plaintiff, v. PROFESSIONAL ACCOUNT
SERVICES, INC., Defendant, Case No. 3:19-cv-0150-HRH (D. Alaska),
Judge H. Russel Holland of the U.S. District Court for the District
of Alaska granted the Defendant's motion for summary judgment.
The Plaintiff was involved in a motor vehicle accident on Oct. 12,
2016. On that same day, he was treated at Mat-Su Regional Medical
Center for injuries he sustained in the accident. The Plaintiff
was discharged from the Hospital on the same day as the accident,
Oct. 12, 2016. The cost of his medical treatment was $7,282.84.
The Plaintiff was required to sign an "Inpatient/Outpatient
Conditions of Admission and Consent to Medical Treatment" form in
order to receive treatment at the Hospital. The form contained an
"Assignment of Insurance Benefits/Promise to Pay" provision.
Michael Lynch, a Lien Unit Manager for the Defendant, avers that
when the Hospital treats a patient who has been involved in a
motor-vehicle accident, the Hospital transfers the patient's
account to the Defendant for the purposes of the Defendant filing a
hospital lien pursuant to the Alaska hospital lien statute or
otherwise coordinating with third-party payers. The Plaintiff's
account with the Hospital was transferred to the Defendant on Oct.
18, 2016, six days after he was discharged.
On Jan. 10, 2017, the Defendant prepared a Notice of Hospital Lien,
which stated that the amount due for the services the Plaintiff had
been provided at the Hospital was $7,282.84. Lynch avers that on
Jan. 10, 2017, the Notice was sent to the Anchorage Recorder's
Office and it was entered by the Recorder. The Defendant's
internal logging system indicates that the Notice of Hospital Lien
was "sent" on Jan. 10, 2017. The Notice of Lien was recorded on
Jan. 30, 2017.
In addition to requiring that a notice of lien be filed with the
recorder's office, the Alaska hospital lien statute also requires
that "a copy of the notice of lien" be served "by registered mail,
at the last known address, upon the person alleged to be
responsible for causing the injury and from whom damages are
claimed, and upon the insurance carrier that has insured against
the liability, if the insurance carrier is known." Lynch avers
that on Jan. 10, 2017, the Defendant was not aware of the identity
of the tortfeasor or the identity of the tortfeasor's insurance
company and accordingly, the Defendant did not send a copy of the
Notice of Hospital Lien to the tortfeasor or the tortfeasor's
insurance company.
On Jan. 18, 2017, the Plaintiff's insurer, USAA, paid the Hospital
$5,795.24, leaving a balance of $1,487.60.
Lynch avers that on March 6, 2017, the Defendant became aware that
the tortfeasor's insurance company was purportedly State Farm and
that the Defendant attempted to contact State Farm by phone but was
unsuccessful in doing so. Lynch avers that by May 3, 2017, the
Defendant was able to reach State Farm and confirm the proper
mailing address for the State Farm representative.
There is evidence in the record that an updated lien was prepared
on May 4, 2017,17 but the May 4 Notice of Lien itself is not in the
record. Although the updated Notice of Lien was purportedly
attached to Lynch's second declaration filed in support of the
Defendant's reply, the only Notice of Lien attached to the second
declaration is the original January 10 Notice. Lynch does,
however, aver that the updated lien was sent by mail to State Farm,
as well as USAA.
On May 24, 2019, the Plaintiff commenced the action. The
Plaintiff's complaint contains four counts. In the first count, he
asserts a claim that the Defendant violated Section 1692e(2)(A) of
the Fair Debt Collection Practices Act ("FDCPA") by failing to file
a modification of the Notice of Lien. In the second count, he
asserts a claim that defendant violated Section 1629e of the FDCPA
by failing to mail a copy of the Notice of Lien to State Farm and a
claim that the Defendant violated Section 1629e(10) of the FDCPA by
failing to mail a copy of the Notice of Lien to State Farm's
insured. In the third count, the Plaintiff asserts a claim that
the Defendant violated Sections 1692f(1) and 1692f(6)(A) of the
FDCPA by maintaining a lien in the amount of $7,282.84. In count
four, the Plaintiff asserts a claim that defendant violated Section
45.50.471 of the Alaska Unfair Trade Practices and Consumer
Protection Act ("UTPA") by failing to serve a copy of the Notice of
Lien on State Farm, by failing to serve a copy of the Notice of
Lien on State Farm's insured, by failing to file a modification of
the Notice of Lien, and by maintaining a lien in the amount of
$7,282.84.
The Defendant now moves for summary judgment on all of the
Plaintiff's claims.
Because the Defendant is not a debt collector and because the
Defendant did not violate any provisions of the FDCPA, Judge
Holland holds that the Plaintiff's FDCPA claims fail. Regardless
of whether the Notice of Lien was timely filed, all of the
communications at issue in the case related to the filing of a
hospital lien and were not for the purpose of inducing the
Plaintiff to pay his debt to the Hospital. As such, the
Defendant's communications do not fall within the scope of the
FDCPA and no reasonable jury could find that defendant violated the
FDCPA. The Defendant is entitled to summary judgment on the
Plaintiff's FDCPA claims.
Because the Defendant did not violate the Alaska hospital lien
statute, the Judge holds that the Plaintiff's UTPA claim fails.
Nothing in the Alaska hospital lien statute suggests that the
Hospital, or an entity acting on its behalf, was required to
conduct an investigation or take any particular measures in an
attempt to obtain the name and address of the tortfeasor or his
insurance carrier. The Defendant is entitled to summary judgment
on the Plaintiff's UTPA claim.
Based on the foregoing, Judge Holland granted the Defendant's
motion for summary judgment. The clerk of Court will enter
judgment dismissing the Plaintiff's complaint with prejudice.
A full-text copy of the Court's March 18, 2020 Order is available
at https://is.gd/y62m31 from Leagle.com.
Keith James Lange, individually and on behalf of all others
similarly situated, Plaintiff, represented by David Michael Barshay
-- dbarshay@sbglawny.com -- Barshay Sanders, PLLC, pro hac vice &
William D. Cook -- bill@braininjuryalaska.com -- Law Office of
William Dennie Cook P.C.
Professional Account Services, Inc., Defendant, represented by
Roger F. Holmes, Biss & Holmes.
PROGREXION: Chauhans Seek to Certify Call Center Agents Class
-------------------------------------------------------------
In the class action lawsuit styled Cristin Born and Jessica
Chauhan, individually and on behalf of all others similarly
situated v. Progrexion Teleservices, Inc., Case No.
2:20-cv-00107-CMR (D. Utah), the Plaintiffs ask the Court for an
order:
1. conditionally certifying a class under the Fair Labor
Standards Act consisting of:
"all Hourly Call-Center Employees Who Were Employed by
Progrexion Teleservices, Inc., Anywhere in the United
States, at Any Time from February 19, 2017 Through the
Final Disposition of This Matter";
2. directing that the judicially-approved notice be sent to
all Putative Class Members;
3. approving the form and content of Plaintiffs' proposed
judicial notice and reminder notice;
4. directing Progrexion to produce to Plaintiffs' counsel the
contact information (including the names, address,
telephone number and e-mail address) for each Putative
Class Member in a usable electronic format;
5. authorizing a 90-day notice period for Putative Class
Members to join the case; and
6. authorizing notice to be disseminated via First Class
mail, e-mail, posting and text-message to the Putative
Class Members.
Progrexion provides technology and credit repair services to
hundreds of thousands of consumer clients throughout the United
States.[CC]
Attorneys for the Plaintiffs and Putative Class Members are:
Clif Alexander, Esq.
Austin W. Anderson, Esq.
ANDERSON ALEXANDER, PLLC
819 N. Upper Broadway
Corpus Christi, TX 78401
Telephone: (361) 452-1279
Facsimile: (361) 452 -1284
E-mail: team@a2xlaw.com
clif@a2xlaw.com
austin@a2xlaw.com
- and -
Andrew W. Stavros, Esq.
STAVROS LAW P.C.
8915 South 700 East, Suite 202
Sandy, UT 84070
Telephone: (801) 758-7604
Facsimile: (801) 893-3573
E-mail: andy@stavroslaw.com
RESURGENT CAPITAL: Court Dismisses Collazo FDCPA Suit
-----------------------------------------------------
In the case, LINDSEY COLLAZO, individually and on behalf of others
similarly situated, Plaintiffs, v. RESURGENT CAPITAL SERVICES, L.P.
and LVNV FUNDING LLC, Defendants, Case No. 6:19-CV-06050 EAW (W.D.
N.Y.), Judge Elizabeth A. Wolford of the U.S. District Court for
the Western District of New York granted the Defendants' motion to
dismiss for failure to state a claim pursuant to Federal Rule of
Civil Procedure 12(b)(6).
Collazo commenced the putative class action, on behalf of herself
and others similarly situated, on Jan. 16, 2019. The Plaintiff
alleges that the Defendants Resurgent and LVNV sought to collect a
debt from her and others in violation of the Fair Debt Collection
Practices Act ("FDCPA").
On Nov. 14, 2018, Resurgent had its initial communication with the
Plaintiff by mailing her a letter. On Nov. 30, 2018, Resurgent had
its second communication with the Plaintiff by mailing her a
letter. The letter provided that Resurgent manages the referenced
account for LVNV and has initiated a review of the inquiry we
recently received. Prior to receiving both the Nov. 14, 2018, and
Nov. 30, 2018, letters, the Plaintiff alleges that she neither
communicated nor attempted to communicate with Resurgent. She
further alleges that at the time Resurgent sent both letters to the
Plaintiff, Resurgent knew that the Plaintiff was represented by the
counsel.
The Plaintiff has identified two putative classes in her Amended
Complaint. alleges that members ofShe the first putative class
were harmed because in its Nov. 14, 2018, letter, Regent did not
disclose that it was attempting to collect a debt and that any
information [would] be used for that purpose, in violation of 15
U.S.C. Section 1692e(11). She alleges that members of the second
putative class were harmed because in its Nov. 30, 2018, letter,
Regent did not disclose that the communication was from a debt
collector, in violation of 15 U.S.C. Section 1692e(11).
The Plaintiff alleges that LVNV is vicariously liable for
Resurgent's FDCPA violations because LVNV controls, approves,
supervises, and oversees Resurgent's collection activities and
because there exists a principal-agent relationship between LVNV
and Resurgent. The Plaintiff seeks statutory and actual damages on
behalf of herself and the members of the putative classes, as well
as recoupment of reasonable attorneys' fees.
The Plaintiff commenced the instant action on Jan. 16, 2019. On
Feb. 27, 2019, the Defendants filed a motion to dismiss the
Plaintiff's Complaint. The Plaintiff filed an Amended Complaint on
March 15, 2019. On March 29, 2019, the Defendants filed a motion
to dismiss the Plaintiff's Amended Complaint. On April 16, 2019,
the Plaintiff filed a memorandum in opposition to the Defendants'
motion. The Defendants then filed a reply in further support of
their motion to dismiss on April 23, 2019.
Because the communications at issue were not in connection with the
collection of a debt and therefore do not fall within the scope of
the FDCPA, Judge Wolford will grant the Defendants' motion to
dismiss. The Judge is not persuaded by the Defendants' argument
that, in an attempt to overcome their original motion to dismiss,
the Plaintiff's Amended Complaint contradicts allegations contained
in her initial Complaint.
The Defendants argue that the new allegations in the Amended
Complaint -- that prior to receiving the letters the Plaintiff
neither communicated nor attempted to communicate with Resurgent --
contradicted her Complaint. However, the Complaint contained no
allegations regarding whether the Plaintiff had communicated or
attempted to communicate with Resurgent before receiving the
letters. As such, the Plaintiff's new allegations cannot and do
not contradict her Complaint, rule the Court.
Finally, the Plaintiff summarily argues that consumers viewing the
letters objectively would conclude that Resurgent sent these
letters in connection with the collection of a debt. Judge Wolford
finds that both letters do not direct the Plaintiff to mail
payments to a specified address, do not refer to the FDCPA by name,
and do not inform the Plaintiff of her right to dispute the debt's
validity. The Plaintiff does not cite, nor could the Court locate,
any authority for the broad proposition that mere reference to a
creditor or information relating to a consumer's account could
reasonably be interpreted as reflecting a communication sent in
connection with the collection of a debt.
For the foregoing reasons, Judge Wolford granted the Defendants'
motion to dismiss. The Clerk of Court is directed to close the
case.
A full-text copy of the Court's March 11, 2020 Decision & Order is
available at https://is.gd/F1GCli from Leagle.com.
Lindsey Collazo, individually and on behalf of others similarly
situated, Plaintiff, represented by Alexander Jerome Douglas --
alex@lawroc.com -- Kenney Shelton Liptak Nowak LLP.
Resurgent Capital Services, L.P. & LVNV Funding LLC, Defendants,
represented by Peter George Siachos -- psiachos@grsm.com -- Gordon
& Rees LLP.
SAN BERNARDINO, CA: Faces Ribota Labor Suit in C.D. California
--------------------------------------------------------------
A class action lawsuit has been filed against County of San
Bernardino, et al. The case is captioned as Briana Ribota, Nicoale
Sylvestre, Yolanda Salazar, and Obdulia Carreon, individually and
on behalf of all others similarly situated v. County of San
Bernardino, a legal subdivision of the State of California and DOES
1-10, inclusive, Case No. 5:20-cv-00505-JGB-KK (C.D. Cal., March
11, 2020).
The case is assigned to the Hon. Judge Jesus G. Bernal.
The lawsuit alleges violation of labor-related laws.
San Bernardino is a city in California, east of Los Angeles.[BN]
The Plaintiffs are represented by:
Brooks Cutter, Esq.
Celine E. Cutter, Esq.
John R. Parker, Jr., Esq.
CUTTER LAW PC
401 Watt Avenue
Sacramento, CA 95864
Telephone: (916) 290-9400
Facsimile: (916) 588-9330
E-mail: bcutter@cutterlaw.com
ccutter@cutterlaw.com
jparker@cutterlaw.com
- and -
Megan A. Richmond, Esq.
MEGAN A RICHMOND APC
655 West Broadway Suite 1700
San Diego, CA 92101-8495
Telephone: (714) 349-0555
Facsimile: (619) 577-4250
E-mail: megan@therichmondfirm.com
SHAC LLC: Faces Ortiz TCPA Suit Over Unsolicited Text Messages
--------------------------------------------------------------
Abigail Ortiz, individually and on behalf of herself and all others
similarly situated v. SHAC LLC d/b/a SAPPHIRE GENTLEMEN'S CLUB; and
DOES 1 to 10, Case No. 2:20-cv-00621 (D. Nev., March 31, 2020),
seeks relief based on the Defendants' illegal actions in
negligently transmitting unsolicited, autodialed SMS or MMS text
messages, en masse, to the cellular telephones of the Plaintiff and
other individuals across the country, without prior express
consent, in violation of the Telephone Consumer Protection Act.
The Defendants sent random automated text messages to cellphone
users like the Plaintiff without their prior express written
consent in order to solicit their business, says the complaint.
Worse, the Defendants sent these text messages even though the
Defendants knew the TCPA prohibited them from doing so.
The Plaintiff is an individual, who is a citizen and resident of
Las Vegas, Nevada.
The Defendant maintains its corporate headquarters in Las Vegas,
Nevada.[BN]
The Plaintiff is represented by:
Gustavo Ponce, Esq.
KAZEROUNI LAW GROUP, APC
6069 South Fort Apache Road, Suite 100
Las Vegas, NV 89148
Phone: 800.400.6808
Facsimile: 800.520.5523
Email: gustavo@kazlg.com
- and -
Michael R. Parker, Esq.
Kevin Cole, Esq.
PARKER COLE, P.C.
6700 Fallbrook Ave., Suite 207
West Hills, CA 91307
Phone: (818) 292-8800
Facsimile: (818) 292-8337
Email: michael@parkercolelaw.com
kevin@parkercolelaw.com
SHERATON OPERATING: $384K Attys' Fees Given in Castillo Labor Suit
------------------------------------------------------------------
Judge Fernando M. Olguin of the U.S. District Court for the Central
District of California has entered Judgment in the case, MIGUEL
ANGEL SERRANO CASTILLO, on behalf of himself and all other persons
similarly situated, v. SHERATON OPERATING CORP., Defendant, Case
No. CV 17-7091 FMO (ASx) (C.D. Cal.).
Pursuant to the Court's Order Re: Final Approval of Class Action
Settlement, filed contemporaneously with the filing of the
Judgment, (i) Plaintiff Castillo shall be paid a service payment of
$5,000, and (ii) the Class counsel shall be paid $383,782 in
attorney's fees, and $16,222.25 in costs, all in accordance with
the terms of the Settlement Agreement and the Order.
The Claims Administrator, Phoenix, shall be paid for its fees and
expenses in accordance with the terms of the Settlement Agreement.
The California Labor and Workforce Development Agency shall be paid
$24,000 pursuant to the Settlement Agreement.
Except as to any class members who have validly and timely
requested exclusion, the action is dismissed with prejudice, with
all parties to bear their own fees and costs except as set forth in
the Judgment and in the prior orders of the Court.
A full-text copy of the Court's March 4, 2020 Judgment is available
at https://is.gd/QaeWz2 from Leagle.com.
Miguel Angel Serrano Castillo, as an individual and on behalf of
all others similarly situtated, Plaintiff, represented by David J.
Lee -- David@davidjleelaw.com -- David Lee Law, Larry W. Lee --
lwlee@diversitylaw.com -- Diversity Law Group PC & Edward W. Choi
-- edward.choi@choiandassociates.com -- Choi and Associates APC.
Sheraton Operating Corporation, a Delaware corporation, Defendant,
represented by William J. Dritsas -- wdritsas@seyfarth.com --
Seyfarth Shaw LLP & Brian P. Long -- bplong@seyfarth.com --
Seyfarth Shaw LLP.
Daniel Kim, Objector, represented by Craig J. Ackermann --
cja@ackermanntilajef.com -- Ackermann and Tilajef PC, David S.
Winston -- david@employmentlitigators.com -- Winston Law Group PC,
Jonathan Melmed -- jm@melmedlaw.com -- Melmed Law Group PC & Sam
Vahedi, Ackerman and Tilajef PC.
TEXAS: Fails to Protect Inmates From COVID-19, Valentine Claims
---------------------------------------------------------------
Laddy Curtis Valentine and Richard Elvin King, individually and on
behalf of those similarly situated v. BRYAN COLLIER, in his
official capacity, ROBERT HERRERA, in his official capacity, and
TEXAS DEPARTMENT OF CRIMINAL JUSTICE, Case No. 4:20-cv-01115 (S.D.
Tex., March 30, 2020), to enjoin the Defendants' willful and/or
deliberately indifferent and discriminatory conduct in failing to
protect inmates housed in the Wallace Pack Unit, who face a high
risk of severe illness from exposure to Coronavirus Disease 2019 or
COVID-19.
This case is about the Texas Department of Criminal Justice's
("TDCJ") failure to take proper measures to prevent transmission of
COVID-19 to some of its most vulnerable inmates. The named
Plaintiffs and the classes they seek to represent are currently
incarcerated at TDCJ's Pack Unit in unincorporated Grimes County,
Texas. Prisons are an ideal breeding ground for COVID-19. The
Centers for Disease Control and Prevention warns that prisons are
particularly susceptible to the spread of COVID-19 due to the high
population density of inmates, and the tight, confined
environment.
The Plaintiffs contend that despite the ticking time bomb that
COVID-19 represents, TDCJ has failed to implement necessary or even
adequate policies and practices at the Pack Unit. The Plaintiffs
say they have been denied proper and equal access to vital
preventative measures to avoid the transmission of COVID-19, in
violation of federal law and the United States Constitution.
According to the complaint, TDCJ's failures don't just affect the
inmates. Prison health is community health. An outbreak at the Pack
Unit could easily spread to the surrounding communities, and vice
versa. Time is running out for proper protections to be put into
place. The Plaintiffs seek immediate relief from this Court before
it is too late.
Plaintiffs Laddy Curtis Valentine is 69 years old, Richard Elvin
King is 73 years old, both who are currently incarcerated at the
Pack Unit.
Bryan Collier is the executive director of TDCJ.[BN]
The Plaintiffs are represented by:
Jeff Edwards, Esq.
Scott Medlock, Esq.
Michael Singley, Esq.
David James, Esq.
THE EDWARDS LAW FIRM
The Haehnel Building
1101 East 11th Street
Austin, TX 78702
Phone: (512) 623-7727
Fax: (512) 623-7729
- and -
John R. Keville, Esq.
Denise Scofield, Esq.
Michael T. Murphy, Esq.
Brandon W. Duke, Esq.
Benjamin D. Williams, Esq.
Robert L. Green, Esq.
Corinne Stone Hockman, Esq.
WINSTON & STRAWN LLP
800 Capital Street, Suite 2400
Houston, TX 77002
Phone: (713) 651-2600
Fax: (713) 651-2700
Email: jkeville@winston.com
dscofield@winston.com
mtmurphy@winston.com
bduke@winston.com
bwilliams@winston.com
RLGreen@winston.com
CHockman@winston.com
THUNDERBIRD COLLECTION: Sued by Salazar for Violating FDCPA
-----------------------------------------------------------
Consuelo Salazar, individually and on behalf of all others
similarly situated v. Thunderbird Collection Specialists, Inc.,
Case No. 2:20-cv-00643-JZB (D. Ariz., March 31, 2020), seeks
damages and remedies resulting from the illegal actions of the
Defendant in negligently contacting the Plaintiff's employer
regarding an alleged debt, in violation of the Fair Debt Collection
Practices Act.
Sometime before January 14, 2020, the Plaintiff allegedly incurred
certain financial obligations to a creditor. On January 14, 2020,
the Defendant sent a collection letter to the Plaintiff's employer
titled "Employment Verification." The January 14, 2020 letter
included the Plaintiff's social security number and a request for
the number of hours the Plaintiff worked a week, the Plaintiff's
current address, and the Plaintiff's current statutory agent. In
the January 14, 2020 letter, the Defendant clearly lists its name
and address at the top of the page on its letterhead.
According to the complaint, it was clear from the Defendant's
January 14, 2020 letter that the Defendant was attempting to
intimidate and embarrass the Plaintiff by contacting the
Plaintiff's employer. The least sophisticated debtor would
certainly believe that the Defendant was attempting to collect from
the Plaintiff by sending this January 14, 2020 letter to the
Plaintiff's employer. By attempting to contact the Plaintiff's
employer regarding the Plaintiff's debt, the Defendant engaged in
conduct the natural consequence of which was to harass, oppress, or
abuse a person in connection with the collection of a debt.
Consequently, the Defendant violated the FDCPA.
The Plaintiff is a natural person residing in State of Arizona, and
is a "consumer."
The Defendant was a debt collection agency engaged, by use of the
mails and telephone, in the business of collecting a debt.[BN]
The Plaintiff is represented by:
David J. McGlothlin, Esq.
Ryan L. McBride, Esq.
KAZEROUNI LAW GROUP, APC
2633 E. Indian School Road, Ste. 460
Phoenix, AZ 85016
Phone: 800-400-6808
Fax: 800-520-5523
Email: david@kazlg.com
ryan@kazlg.com
UHS OF OKLAHOMA: Faces McKinney Suit in District of Oklahoma
------------------------------------------------------------
A class action lawsuit has been filed against UHS OF OKLAHOMA LLC.
The case is styled as Michael McKinney, individually and on behalf
of all others similarly situated v. UHS OF OKLAHOMA LLC, Case No.
CJ-2020-99 (D. Okla., Garfield Cty., March 30, 2020).
The case type is stated as "Civil relief more than $10,000:
DAMAGE."
UHS of Oklahoma, Inc. provides health care services. The Company
offers cardiology, neurology, radiology, and rehabilitation
services.[BN]
UNIFIED LIFE: Montana District Certifies Class in Butler Suit
-------------------------------------------------------------
Judge Susan P. Waters of the U.S. District Court for the District
of Montana, Billings Division, has entered her class certification
order in the case, CHARLES M. BUTLER, III and CHOLE BUTLER
Plaintiffs, v. UNIFIED LIFE INSURANCE COMPANY; HEALTH PLANS
INTERMEDIARIES HOLDINGS, LLC, doing business as Health Insurance
Innovations, Inc.; ALLIED NATIONAL, INC.; NATIONAL BROKERS OF
AMERICA, INC.; THE NATIONAL CONGRESS OF EMPLOYERS, INC.; and DOES
1-10 Defendants, Case No. CV 17-50-BLG-SPW (D. Mont.).
The case will be maintained as a class action on behalf of the
following class of Plaintiffs: a) All individuals who have
purchased the Unified Life Insurance Company (Unified) Short Term
Medical Insurance Policy or any policy with similar, operative
language as the policy covering the class representative; b) Who
have paid their premiums; c) Who have made one or more claims; d)
For whom Unified assigned an amount for the claim using the Data
iSight formula; and e) For whom Unified assigned the payable amount
within the applicable statutory period of limitations for written
contracts dating back from the filing of the Plaintiff's Third
Amended complaint.
The class is certified only with regard to the claim that Unified
breached its insurance agreements as set forth in Count I of the
Class Claims for Relief in the Third Amended Complaint. The
grounds for class certification, including analysis of all relevant
Rule 23 factors, are set forth in the Magistrate's Recommendations
and the Court's Orders concerning the Plaintiffs' Motion for
Summary Judgment and for Class Certification.
Charles Butler is designated as the class representative, and John
Morrison and Scott Peterson are designated as the counsel for the
class.
Unified Life and its claims administrator Allied National have in
their possession information pertinent to the identity of the class
members. Therefore, by May 4, 2020, Unified will produce to the
Court and class counsel the names, addresses, and other contact
information Unified possesses for all the class members organized
by state.
The Judge approved the individual notice, and approved the
publication notice. The class counsel, with Unified cooperation,
will accomplish having the individual notices mailed, and the
publication notice reasonably published. Because the Court has
already granted partial summary judgment concerning Unified Life's
liability, Unified Life will bear the cost of mailing the notice,
including any administrative costs incurred. The notice will be
mailed by June 22, 2020. The class members will have 60 days from
the mailing of the notice to opt out as provided in the notice.
By Aug. 31, 2020, the class counsel will file with the clerk a list
of all the class members and a list of the individuals who opted
out of the Class.
A full-text copy of the Court's March 4, 2020 Order is available at
https://is.gd/Nsi0ba from Leagle.com.
Charles M. Butler, III & Chole Butler, Plaintiffs, represented by
John M. Morrison , MORRISON, SHERWOOD, WILSON & DEOLA, PLLP &
Scott
L. Peterson , MORRISON, SHERWOOD, WILSON & DEOLA, PLLP, 401 N.
Last
Chance Gulch, Helena, MT 59601
Unified Life Insurance Company & Allied National, Inc, Defendants,
represented by Robert L. Sterup - rsterup@brownfirm.com - BROWN
LAW
FIRM, P.C.
Health Plans Intermediaries Holdings, LLC., doing business as
Health Insurance Innovations & Health Insurance Innovations, Inc.,
Defendants, represented by Monique P. Voigt --
mvoigt@crowleyfleck.com -- CROWLEY FLECK PLLP.
The National Congress of Employers, Inc, Defendant, represented by
Katherine Huso -khuso@mkhattorneys.com - MATOVICH, KELLER & HUSO,
P.C.
US CLAIMS: Pennsylvania Eastern District Junks DeSimone UTPCPL Suit
-------------------------------------------------------------------
In the case, DOMINICK DESIMONE, Plaintiff, v. U.S. CLAIMS SERVICES,
INC., et al., Defendants, Civil Action No. 19-6149, No. 19-6150
(E.D. Pa.), Judge Gerald J. Pappert of the U.S. District Court for
the Eastern District of Pennsylvania granted the Defendants' Motion
to Dismiss.
U.S. Claims Services, a Texas corporation with its principal place
of business in California, operates a business dedicated to
connecting property owners with unclaimed property that escheats to
the state. In April of 2019, it contacted DeSimone, a citizen of
Pennsylvania, advising him that he had $469.10 in unclaimed wages.
DeSimone then entered into a contract with the company, pursuant to
which U.S. Claims Services charged a 15% fee for recovering
DeSimone's money. DeSimone now claims that he did not know that he
could get his money back on his own by contacting the Pennsylvania
Treasury.
DeSimone brings the putative class action against U.S. Claims
Services and its employee Paul Hashim. He contends that he never
would have contracted with the company and agreed to pay a fee for
something he could have done himself for free. He alleges that the
Defendants' failure to disclose that unclaimed property could be
retrieved directly from the Pennsylvania Treasury at no cost
violated Pennsylvania's Unfair Trade Practices and Consumer
Protection Law and Texas's Deceptive Trade Practices-Consumer
Protection Act.
The Defendants filed a Motion to Dismiss, which Judge Pappert
granted.
Count I of the Complaint alleges that the Defendants violated the
UTPCPL by engaging in unfair or deceptive acts when they failed to
disclose that the services they provide are unnecessary and freely
available from the state that is holding the property. The
Defendants first contend that U.S. Claims Services and Hashim's
compliance with Pennsylvania's Unclaimed Property Act, requires
dismissal of the UTPCPL claim. They also argue that they had no
duty to disclose the fact that DeSimone could retrieve his
unclaimed property himself, free of charge.
Judge Pappert holds that the Defendants argue correctly that
DeSimone's UTPCPL claim fails because they had no legal duty to
disclose that property owners can recover unclaimed funds directly
from the state without a fee. A prerequisite for omissions to be
actionable under the UTPCPL is the presence of a fiduciary duty or
some other confidential relationship.
In Pennsylvania, some types of relationships give rise to a
fiduciary duty as a matter of law. When a fiduciary duty does not
exist as a matter of law, Pennsylvania courts nevertheless
recognize confidential relationships in situations where the
relative position of the parties is such that one has the power and
means to take advantage of, or exercise undue influence over, the
other. DeSimone has not alleged in his Complaint facts which could
establish that a fiduciary or confidential relationship existed
between him and U.S. Claims Services or Hashim. He accordingly
cannot rely on the Defendants' alleged omissions as a basis to
plead a UTPCPL claim under the knowing misrepresentation or
catch-all provisions, rules Judge Pappert.
Courts should freely give leave to amend a complaint when justice
so requires. It certainly includes amendment to cure defective
allegations. DeSimone is free to amend Count I consistent with
this Memorandum to the extent he can alleges facts which could
establish that the Defendants had a duty to disclose to DeSimone
that he could retrieve unclaimed property directly from the
Pennsylvania Treasury free of charge.
An appropriate Order follows.
A full-text copy of the Court's March 11, 2020 Memorandum is
available at https://is.gd/jPmDCZ from Leagle.com.
U.S. CLAIM SERVICES, INC., doing business as PAYNE RICHARD &
ASSOCIATES, Plaintiff, represented by JOHN PATRICK QUINN --
jpquinn@mdwcg.com -- MARSHALL DENNEHEY WARNER COLEMAN & GOGGIN,
KAREN GRETHLEIN -- kegrethlein@mdwcg.com -- MARSHALL DENNEHEY &
WILLIAM W. PALMER, PALMER LAW GROUP PLC.
DOMINICK DESIMONE, Defendant, represented by ANDREW B. AUSTIN --
austin@stackhousegroup.com -- STACKHOUSE GROUP.
US WAY EXPRESS: Fails to Pay OT Wages Under FLSA, Moylamov Claims
-----------------------------------------------------------------
Musa Moylamov and Ozgur Armutcuolu a/k/a Ozgur Ulas, on behalf of
themselves and similarly situated individuals v. US WAY EXPRESS
INC., VICTOR TRACHUK, and IVAN PROTSYUK, Case No. 1:20-cv-02044
(N.D. Ill., March 31, 2020), is brought under the Fair Labor
Standards Act, the Illinois Minimum Wage Law, and the Illinois Wage
Payment and Collection Act for the Defendant's failure to timely
pay the Plaintiffs all of the wages that they earned, including
overtime wages for all time worked in excess of 40 hours in a
workweek.
The Defendants failed to pay the Plaintiffs for all time worked in
excess of forty hours per week at time at time and a half their
regular rate of pay, the Plaintiffs allege. The Plaintiffs assert
that the Defendants have failed to keep proper time records
tracking the Plaintiffs' time worked and have failed to post a
notice of rights. The Defendants' unlawful compensation practices
have, and have had the effect of denying the Plaintiffs their
earned wages, says the complaint.
The Plaintiffs worked as drivers and dispatchers for the
Defendants.
The Defendants operate a transportation and trucking company in
Schaumburg, Illinois.[BN]
The Plaintiffs are represented by:
Dan E. Garbis, Esq.
THE GARBIS LAW FIRM, LLC
7330 N. Cicero Ave.
Lincolnwood, IL 60712
Phone: (847) 982-9518
Email: dgarbis@garbislawfirm.com
VISTANA MANAGEMENT: Louissant Sues to Recover Wages Under FLSA
--------------------------------------------------------------
Rosita Louissant, on behalf of herself and all others similarly
situated v. VISTANA MANAGEMENT, INC., a Florida corporation, Case
No. 6:20-cv-00546-WWB-EJK (M.D. Fla., March 30, 2020), is brought
against the Defendants to recover compensation and other relief
under the Fair Labor Standards Act.
The Defendant required the Plaintiff, a non-exempt employee under
the FLSA, to work in excess of 40 hours per work-week, and
willfully refused to properly compensate the Plaintiff, says the
complaint. Specifically, the Plaintiff alleges, the Defendant would
only compensate her at straight time pay for these hours, as
opposed to an overtime premium.
The Plaintiff was hired as a housekeeper, and non-exempt, by the
Defendant.
VMI was and continues to be an enterprise engaged in commerce.[BN]
The Plaintiff is represented by:
Chad E. Levy, Esq.
LAW OFFICES OF LEVY & LEVY, P.A.
1000 Sawgrass Corporate Parkway, Suite 588
Sunrise, FL 33323
Phone: (954) 763-5722
Facsimile: (954) 763-5723
Email: chad@levylevylaw.com
VMWARE INC: Faces Lamartina Suit Over Decline in Share Price
------------------------------------------------------------
William Lamartina, Individually and On Behalf of All Others
Similarly Situated v. VMWARE, INC., PATRICK P. GELSINGER, and ZANE
ROWE, Case No. 3:20-cv-02182 (N.D. Cal., March 31, 2020), accuses
the Defendants of violating securities laws that resulted in the
decline of the Company's share price.
The lawsuit is brought on behalf of a class consisting of all
persons other than Defendants, who purchased or otherwise acquired
VMware securities between March 30, 2019, and February 27, 2020,
both dates inclusive, seeking to recover damages caused by the
Defendants' violations of the federal securities laws and to pursue
remedies under the Securities Exchange Act of 1934 and Rule 10b-5
promulgated thereunder, against the Company and certain of its top
officials.
According to the complaint, the Defendants made materially false
and misleading statements regarding the Company's business,
operations and compliance policies. Specifically, the Defendants
made false and/or misleading statements and/or failed to disclose
that: (i) VMware's reporting with respect to its backlog of
unfilled orders was not in compliance with all relevant accounting
and disclosure requirements; (ii) the foregoing subjected the
Company to a foreseeable risk of heightened regulatory scrutiny
and/or investigation; and (iii) as a result, the Company's public
statements were materially false and misleading at all relevant
times.
On February 27, 2020, during after-market hours, and the same day
that VMware announced its fourth quarter and fiscal year 2020
financial results, the Defendants filed a Current Report on Form
8-K with the SEC, disclosing an investigation by the Securities and
Exchange Commission into the Company's backlog of unfilled orders.
Specifically, that Form 8-K advised investors that, "in December
2019, the staff of the Enforcement Division of the SEC requested
documents and information related to VMware's backlog and
associated accounting and disclosures." The Form 8-K also advised
investors that, although "VMware is fully cooperating with the
SEC's investigation," it was "unable to predict the outcome of this
matter at this time."
On this news, VMware's stock price fell $15.11 per share, or
11.14%, to close at $120.52 per share on February 28, 2020.
As a result of the Defendants' wrongful acts and omissions, and the
precipitous decline in the market value of the Company's
securities, the Plaintiff and other Class members have suffered
significant losses and damages, says the complaint.
The Plaintiff acquired VMware securities at alleged artificially
inflated prices during the Class Period.
VMware provides software in the areas of hybrid cloud, multi-cloud,
modern applications, networking and security, and digital
workspaces in the United States and internationally, and sells its
products through distributors, resellers, system vendors, and
systems integrators.[BN]
The Plaintiffs are represented by:
Jennifer Pafiti, Esq.
POMERANTZ LLP
1100 Glendon Avenue, 15th Floor
Los Angeles, CA 90024
Phone: (310) 405-7190
Email: jpafiti@pomlaw.com
- and -
Jeremy A. Lieberman, Esq.
J. Alexander Hood II, Esq.
POMERANTZ LLP
600 Third Avenue, 20th Floor
New York, NY 10016
Phone: (212) 661-1100
Facsimile: (212) 661-8665
Email: jalieberman@pomlaw.com
ahood@pomlaw.com
- and -
Patrick V. Dahlstrom, Esq.
POMERANTZ LLP
10 South La Salle Street, Suite 3505
Chicago, IL 60603
Phone: (312) 377-1181
Facsimile: (312) 377-1184
Email: pdahlstrom@pomlaw.com
- and -
Brian Schall, Esq.
THE SCHALL LAW FIRM
1880 Century Park East, Suite 404
Los Angeles, CA 90067
Phone: (424) 303-1964
Email: brian@schallfirm.com
WINCHESTER PLACE: Fails to Pay OT Wages Under FLSA, Summers Says
----------------------------------------------------------------
Jennifer Summers, on behalf of herself and all others similarly
situated v. WINCHESTER PLACE LEASING, LLC, d/b/a WINCHESTER CARE
AND REHABILITATION and PROVIDENCE HEALTHCARE MANAGEMENT, INC., Case
No. 2:20-cv-01623-EAS-KAJ (N.D. Ohio, March 30, 2020), is brought
against the Defendants for their failure to pay employees overtime
wages, in violation of the Fair Labor Standards Act and the Ohio
Wage Laws.
The Defendants unlawfully excluded the pick-up shift bonus and/or
the retention bonus in determining the Plaintiff and the Putative
Class' "regular rates" for purposes of overtime compensation, says
the complaint. The Defendants, thereby, miscalculated and underpaid
the overtime compensation it paid to hourly employees, including
the Plaintiff.
The Plaintiff was employed by the Defendant as an hourly non-exempt
State Tested Nursing Assistant.
The Defendants operate and manage approximately 20 to "31 health
care facilities in Ohio and Kentucky with each facility managed by
an on-site team".[BN]
The Plaintiffs are represented by:
Matthew J.P. Coffman, Esq.
COFFMAN LEGAL, LLC
1550 Old Henderson Road, Ste. 126
Columbus, OH 43220
Phone: 614-949-1181
Fax: 614-386-9964
Email: mcoffman@mcoffmanlegal.com
YOUDERIAN LLC: Approval of Thomas Case Settlement Sought
--------------------------------------------------------
In the class action lawsuit styled BRITTON THOMAS on behalf of
himself and those similarly situated v. JOHN A. YOUDERIAN JR., LLC;
JOHN A. YOUDERIAN JR. and JOHN DOES 1 to 10, Case No.
2:16-cv-01408-MAH (D.N.J.), the Plaintiff moves the Court for an
order:
1. certifying this case to proceed as a class action;
2. granting final approval of the parties' settlement
agreement; and
3. authorizing the payment of an incentive award and
granting further relief to plaintiff as class
representative, and an award of attorney’s fees
and costs.
John A. Youderian, Jr., LLC is a firm serving Hockessin, Delaware
in general practice, commercial law and corporate law cases.[CC]
The Plaintiff is represented by:
Yongmoon Kim, Esq.
KIM LAW FIRM LLC
411 Hackensack Avenue, Suite 701
Hackensack, NJ 07601
Telephone: 201 273 7117
E-mail: ykim@kimlf.com
Attorneys for the Defendants are:
Jeffrey S. Leonard, Esq.
LEWIS B RISBOIS B ISGAARD & S MITH LLP
One Riverfront Plaza, Suite 800
Newark, NJ 07102
*********
S U B S C R I P T I O N I N F O R M A T I O N
Class Action Reporter is a daily newsletter, co-published by
Bankruptcy Creditors' Service, Inc., Fairless Hills, Pennsylvania,
USA, and Beard Group, Inc., Washington, D.C., USA. Rousel Elaine T.
Fernandez, Joy A. Agravante, Psyche A. Castillon, Julie Anne L.
Toledo, Christopher G. Patalinghug, and Peter A. Chapman, Editors.
Copyright 2020. All rights reserved. ISSN 1525-2272.
This material is copyrighted and any commercial use, resale or
publication in any form (including e-mail forwarding, electronic
re-mailing and photocopying) is strictly prohibited without prior
written permission of the publishers.
Information contained herein is obtained from sources believed to
be reliable, but is not guaranteed.
The CAR subscription rate is $775 for six months delivered via
e-mail. Additional e-mail subscriptions for members of the same
firm for the term of the initial subscription or balance thereof
are $25 each. For subscription information, contact
Peter A. Chapman at 215-945-7000.
*** End of Transmission ***