/raid1/www/Hosts/bankrupt/CAR_Public/200423.mbx
C L A S S A C T I O N R E P O R T E R
Thursday, April 23, 2020, Vol. 22, No. 82
Headlines
A1 DIABETES: Jones Seeks to Stop Autodialed Telemarketing Calls
ALLSTATE FIRE: Ayanbadejo Seeks Review of Order to Texas App. Ct.
ALLSTATE INDEMNITY: Sixth Circuit Flips Dismissal of Perry Suit
ALTRIA GROUP: Martinez Challenges Anticompetitive Deals on E-Cigs
ANTARES PHARMA: Bid to Dismiss Smith Class Suit Still Pending
ANTERO RESOURCES: Seeks 4th Cir. Review of Ruling in Romeo Suit
ARCONIC INC: Ortiz Sues Over Unlawful Employment Practices
BANK OF AMERICA: Fortinbras Appeals Decision in AEP Fund Suit
BARNES & NOBLE: Faces Delaware Class Suit
BED BATH & BEYOND: Faces Vitiello Securities Suit in New Jersey
BENIHANA MARINA: Fails to Pay All Wages, Iniguez Suit Alleges
BLUE APRON: Court Reverses Summary Judgment in Sciabacucchi Suit
BP EXPLORATION: Denial of Review of Mueller's Compensation Upheld
BPI SPORTS: Underfills Diet Supplement Containers, Garcia Claims
CAJUN OPERATING: Website Inaccessible to Blind, Alcazar Claims
CALIFORNIA: Court Dismisses Archer Prisoners Suit with Prejudice
CELEBRITY CRUISES: Nedeltcheva Sues Over Exposure to COVID-19
COLLECTO INC: Faces Church FDCPA Suit in District of New Jersey
CONAIR CORPORATION: Hergert Liability Suit Moved to N.D. Illinois
COVETRUS INC: Continues to Defend Cops Retirement System Suit
CR ENGLAND: Clarke Labor Class Suit Removed to C.D. California
CSX TRANS: Billingsley FMLA Suit Moved from Florida to Maryland
DISTRICT OF COLUMBIA: Fails to Contain COVID-19, Banks et al Claim
DO LAB INC: Jimenez Sues Over Failure to Refund Festival Tickets
ENSURETY VENTURES: Hirsch TCPA Suit Dismissal with Prejudice Upheld
FITNESS INT'L: Barnett Seeks Refund of Unearned Membership Fees
FLYWHEEL SPORTS: Ct. Orders Arbitration in Henricks TCPA Suit
GENERAL MOTORS: Court Dismisses First Amended Hall Suit
H Z & J SERVICES: Mercedes Seeks Minimum and OT Pay for Drivers
HERITAGE-CRYSTAL CLEAN: Settlement Reached in Adelphia Class Suit
HERSHA HOSPITALITY: Schaefer ADA Suit Removed to C.D. California
HOOTERS III: Scott and Seales Sue Over Abrupt Termination
HYUNDAI MOTOR: Michael Balks at Unsolicited Telemarketing Calls
IBERIABANK CORP: Suits Challenge First Horizon Merger
INTERNATIONAL FLAVORS: Faces Securities Class Suits in Tel Aviv
JEI TRUCKING: Williams FLSA Suit Moved From Arkansas to Oklahoma
JUUL LABS: Gabbard Consumer Class Suit Removed to E.D. Kentucky
KENNER, LA: La. App. Affirms Prelim Injunction Ruling in Drumm Suit
KILOO A/S: McDonald Suit Seeks to Certify Classes & Subclasses
LIGHTHOUSE INSURANCE: Bond et al Sue over Unsolicited Phone Calls
LYFT INC: Keiner Named Lead Plaintiff in Securities Suit
MDL 2184: $13MM Google Electronic Comm. Suit Deal Gets Final Ct. OK
MDL 2286: Court Denies Bid to Stay Midland TCPA Suit
MDL 2744: Ct Narrows Claims in Monostable Electronic Gearshift Suit
MENLO THERAPEUTICS: Faces Foamix Merger-Related Class Suits
MENLO THERAPEUTICS: Settlement Reached in Savelstrov Class Suit
MESA AIR GROUP: Lowthorp Alleges Misleading IPO Docs
NCAA: Baker Seeks Damages Over Football-Related Head Injuries
NESTLE PURINA: Jacquin Consumer Suit Removed to E.D. Missouri
NEW YORK: App. Ct. Dismisses Counts I, II v. MTA & LIRR in Jacobs
NEWLINK GENETICS: 2nd Cir. Appeal in Nguyen Action Still Pending
NORRISTOWN AREA SCHOOL: Spanish Teacher Alleges Discrimination
NOVO NORDISK: FWK Holdings Alleges Price-Fixing of Insulin Drugs
NUVANCE HEALTH: Fails to Defend PII From Data Breach, Gyscek Says
OHIO STATE UNIVERSITY: Does Sue Alleging Civil Rights Violations
ONE PLANET: Court Partly Denies Bid to Dismiss Schley TCPA Suit
OPKO HEALTH: Avraham Class Action Ongoing
OPKO HEALTH: Bid to Dismiss Consolidated Class Action Pending
OPKO HEALTH: Data Security Breach Suits v. BioReference Ongoing
OPKO HEALTH: Sharon Suit in Tel Aviv Closed Temporarily
OUTLAW LABORATORY: Certification of 3 Classes Sought
PENNSYLVANIA: Faces C.Z. Class Suit in Pennsylvania Sup. Ct.
PREFERRED CAREGIVERS: Misclassifies Employees, Badon Claims
R&B CORP: Nixon Sues in E.D. Virginia Alleging Violation of FDCPA
RALPHS GROCERY: Torres Seeks Civil Penalties for Unpaid Wages
RENT-A-CENTER INC: Agreement in Principle Reached in Russel Suit
RESOLUTE ENERGY: Ct. Dismisses Mack Securities Suit
RUTTER'S INC: Johnson Sues Over Data Security Breach
SAC WIRELESS: Smith Sues Over Failure to Pay Overtime Wages
SAFEGUARD PROPERTIES: Misclassifies Employees, Lian Suit Claims
SALT & STRAW: Hayes Labor Class Suit Removed to C.D. California
SINCLAIR BROADCAST: Bid to Nix Illinois Consolidated Suit Pending
SITEL OPERATING: Court Grants Bid for Conditional Certification
STATE FARM: Court Certifies Rule 23 Class in Bally Suit
STELLAR COMMUNITIES: Greenberg Sues Over Unwanted Marketing Texts
T.S. DUDLEY LAND: Fails to Pay Overtime to Agents, Penska Claims
TECHNIPFMC PLC: Continues to Defend Prause Securities Class Suit
TEP ROCKY: 10th Cir. Affirms Sefcovic Suit Settlement Approval
TEP ROCKY: Dismissal of Bid to Intervene in Sefcovic Deal Upheld
TITAN RESTAURANT: Bid to Certify Classes in Knoll FLSA Suit Denied
TODD TAYLOR CUSTOM: Morales Seeks to Recover Unpaid Back Wages
TRANSAMERICA PREMIER: Alvarez EFTA Suit Moved to C.D. California
TRUEFIRE LLC: Faces Llamas Suit in M.D. Florida Over Data Breach
UBER TECHNOLOGIES: Capriole Suit Moved From D. Mass. to N.D. Cal.
UNION SECURITY: Licea Suit Seeks to Recover Unpaid Overtime Wages
UNITED STATES: Ninth Circuit Appeal Initiated in Sai Class Suit
UNITED VALET: Denies Hourly Workers' Earned Wages, Afarinesh Says
WHOLE FOODS: ShiKai CBD Lotion Can't Be Legally Sold, Figura Says
YKF FOODS: Vari Seeks Unpaid Minimum Wages for Delivery Drivers
ZOOM VIDEO: Lawton Sues Over Deceptive Advertising of Software
*********
A1 DIABETES: Jones Seeks to Stop Autodialed Telemarketing Calls
---------------------------------------------------------------
DAVID JONES, individually, and on behalf of all others similarly
situated v. A1 DIABETES & MEDICAL SUPPLY, INC., a Tennessee
corporation, Case No. 2:20-cv-02248-SHL-cgc (W.D. Tenn., March 31,
2020), seeks to stop A1 Diabetes from making or directing its
agents to make unsolicited prerecorded and autodialed telemarketing
calls to consumers without their consent, in violation of the
Telephone Consumer Protection Act.
The Plaintiff alleges that A1 Diabetes placed well over 10
autodialed and prerecorded calls to his cell phone number,
including text message calls, despite being told that he has no
need for A1 Diabetes' services and never consented to the calls in
the first place.
A1 Diabetes is a for-profit corporation that provides consumers
medical equipment and supplies to those with diabetes.[BN]
The Plaintiff is represented by:
Bradley G. Kirk, Esq.
Telephone: (901) 206-6163
E-mail: bgkirklaw@gmail.com
- and -
Stefan Coleman, Esq.
LAW OFFICES OF STEFAN COLEMAN, P.A.
201 S. Biscayne Blvd., 28th Floor
Miami, FL 33131
Telephone: 877 333 9427
Facsimile: 888 498 8946
E-mail: law@stefancoleman.com
- and -
Patrick Peluso, Esq.
WOODROW & PELUSO, LLC
3900 East Mexico Avenue, Suite 300
Denver, CO 80210
Telephone: 702 213 0676
E-mail: ppeluso@woodrowpeluso.com
ALLSTATE FIRE: Ayanbadejo Seeks Review of Order to Texas App. Ct.
-----------------------------------------------------------------
Plaintiff John-Henry Ayanbadejo filed an appeal from a court ruling
issued in his lawsuit styled John-Henry Ayanbadejo, individually
and on behalf of similarly situated persons v. Chanel Goosby, and
Allstate Fire & Casualty Insurance Co., Case No. 2019-18186, in the
Texas District Court.
As previously reported in the Class Action Reporter, the lawsuit is
brought against the Defendants for violations of the Texas
Insurance Code and the Texas Deceptive Trade Practices Act when
after being engaged in false, misleading, or deceptive acts or
practices that Mr. Ayanbadejo relied on.
Mr. Ayanbadejo had switched insurance providers from his full
coverage Farmers Insurance Co. to full coverage Allstate Indemnity
Co. due to the Defendants advertising and the lower rates offered.
The Defendants violated DTPA when the Defendants withdrew money
from the Plaintiff's Wells Fargo Account and used the illegally
obtained funds to pay a 6-month policy of another customer. The
Defendants have also failed to pay any claim due to the Plaintiff.
The appellate case is captioned as John-Henry Ayanbadejo,
Individually, and on Behalf of Similarly Situated Persons v. Chanel
Goosby, Allstate Fire & Casualty Insurance Co., Case No.
14-20-00264-CV, in the Texas Court of Appeals, Fourteenth Court of
Appeals.[BN]
Plaintiff-Appellant John-Henry Ayanbadejo, Individually, and on
Behalf of Similarly Situated Persons, is represented by:
Olu McGuinnis Otubusin, Esq.
LAW CHAMBERS OF MCGUINNIS AND ASSOCIATES
6430 Richmond Avenue, #350
Houston, TX 77057
Telephone: (713) 782-6982
Facsimile: (713) 782-6984
E-mail: mcguinnis@sbcglobal.net
Defendants-Appellees Chanel Goosby and Allstate Fire & Casualty
Insurance Co. are represented by:
John M. Causey, Esq.
HOPE & CAUSEY, PC
815 W Davis St., #300
Conroe, TX 77301
Telephone: (936) 441-4673
ALLSTATE INDEMNITY: Sixth Circuit Flips Dismissal of Perry Suit
---------------------------------------------------------------
Judge Karen Nelson Moore of the U.S. Court of Appeals for the Sixth
Circuit reversed the judgment of the district court dismissing the
case, ANDREA PERRY, individually and on behalf of all other Ohio
residents similarly situated, Plaintiff-Appellant, v. ALLSTATE
INDEMNITY COMPANY, et al., Defendants-Appellees, Case No. 18-4267
(6th Cir.), and remanded for further proceedings consistent with
her Opinion.
Perry's home suffered water damage and required extensive repairs.
To pay for the damage, she filed a claim with her insurer, Allstate
Indemnity Company. Allstate did not dispute that Perry's home was
seriously damaged, or that it was required to pay for repairs or
replacement. And the parties agree that the total estimated cost
to repair or replace Perry's home is $32,965.09. After making
deductions for "depreciation," Allstate provided Perry with a net
payment of $28,394.74. The source of the disagreement is
Allstate's deduction of labor costs as part of the calculation of
depreciation.
Perry's payout was calculated on an "actual cash value" ("ACV")
basis. Her Allstate insurance policy provides, "If you do not
repair or replace the damaged, destroyed or stolen property,
payment will be on an actual cash value basis. This means there may
be a deduction for depreciation." The policy does not define
"depreciation."
Allstate contends that "depreciation" must account for the cost of
both materials and labor. Perry does not dispute that
"depreciation" includes the cost of materials, but claims that the
term "depreciation" is ambiguous with respect to labor costs. The
district court accepted Allstate's definition and granted its
motion to dismiss under Federal Rule of Civil Procedure 12(b)(6)
for failure to state a claim. Perry timely appealed.
As an initial matter, Allstate argues that Perry has standing only
to pursue her claims against Allstate, the division that issued her
insurance policy. Perry concedes that the remaining Allstate
entities are not parties to the policy at issue in the case.
Therefore, Perry lacks standing to pursue her claims against those
entities because her injury is not traceable to them.
It does not matter that Perry brought the suit as a putative class
action on behalf of policyholders of the other Allstate entities.
The rule works the other way around. Potential class
representatives must demonstrate individual standing vis-a-vis the
defendant; they cannot acquire such standing merely by virtue of
bringing a class action. As Perry is the only named Plaintiff in
the action, no other named Plaintiffs exist to create standing
against the remaining Allstate entities. On remand, the district
court should dismiss without prejudice Perry's claims against the
remaining Allstate entities.
Now, Judge Moore turns to the merits. The question on appeal is
whether Perry's insurance policy permits Allstate to depreciate
labor costs in calculating ACV. Allstate argues that it was
entitled to depreciate labor costs, in addition to the cost of
materials, in calculating ACV. Perry says the policy is ambiguous.
The district court sided with Allstate and granted Allstate's
motion to dismiss pursuant to Federal Rule of Civil Procedure
12(b)(6).
Judge Moore reviews de novo the decision to dismiss Perry's
complaint. She finds that neither the insurance policy nor the
Ohio Administrative Code defines "depreciation." And the Ohio
Supreme Court has not weighed in on the question. Thus,
"depreciation" is left undefined and, Perry argues, is ambiguous.
The Judge agrees that the policy is ambiguous and holds that
Allstate improperly depreciated labor costs in calculating ACV.
Because Perry's interpretation of "depreciation" is a fair reading
of an ambiguous term, her interpretation prevails against the
insurer. Judge Moore accordingly hold as a matter of law that it
was improper for Allstate to depreciate labor costs to arrive at
its net payment to Perry for the damage to her home.
Judge Moore reversed the district court's judgment of dismissal,
and remanded for further proceedings consistent with her Opinion.
A full-text copy of the Court's March 18, 2020 Opinion is available
at https://is.gd/UAslac from Leagle.com.
Andrea Perry, individually and on behalf of all other Ohio
residents similarly situated, Plaintiff, represented by Daniel P.
Goetz -- dgoetz@weismanlaw.com -- Weisman, Kennedy & Berris, James
A. DeRoche, Garson Johnson, Patrick J. Perotti --
pperotti@dworkenlaw.com -- Dworken & Bernstein, R. Eric Kennedy --
ekennedy@weismanlaw.com -- Weisman, Kennedy & Berris & Stuart I.
Garson, Garson Johnson.
Allstate Indemnity Company, Allstate Property & Casualty Insurance
Company, Allstate Insurance Company, Allstate Vehicle & Property
Insurance Company, Encompass Home & Auto Insurance Company,
Encompass Insurance Company of America, Encompass Indemnity
Company, Encompass Property & Casualty Company & Esurance
Insurance
Company, Defendants, represented by Kristine M. Schanbacher --
kristine.schanbacher@dentons.com -- Dentons US, Leah R. Bruno,
Dentons US, Mark L. Hanover, Dentons US, pro hac vice & Gregory R.
Farkas -- gfarkas@frantzward.com -- Frantz Ward.
ALTRIA GROUP: Martinez Challenges Anticompetitive Deals on E-Cigs
-----------------------------------------------------------------
Anthony Martinez, on behalf of himself and all others similarly
situated v. ALTRIA GROUP, INC., and JUUL LABS, INC., Case No.
3:20-cv-02597 (N.D. Cal., April 14, 2020), is brought as an
antitrust class action against the Defendants concerning
anticompetitive agreements between them in which Altria agreed to
refrain from competing against Juul in the United States market for
closed-system electronic cigarettes in return for a substantial
ownership interest in Juul, in violation of the Sherman Act and the
Clayton Act.
In light of declining sales in the market for traditional
cigarettes and a shift by consumers to alternative nicotine
delivery devices, Altria viewed participation in the e-cigarette
market as essential to its long-term survival, according to the
complaint. In 2013, Altria entered the market through its
subsidiary Nu Mark LLC. Its flagship product was the MarkTen
e-cigarette. In 2015, Juul entered the market and quickly captured
a substantial market share. By 2018, Juul had obtained market share
of over 70 percent, stunning Altria and other competitors. Juul's
swift rise posed a grave competitive threat to Altria in both the e
cigarette and traditional cigarette markets. To eliminate that
threat, Altria began a two-prong strategy of acquiring Juul, while
continuing to compete against it. Altria's efforts to acquire Juul
were unsuccessful initially.
With respect to competition, Altria introduced a new product known
as the MarkTen Elite which closely resembled Juul's product. With
respect to acquisition, Altria entered into negotiations to acquire
an ownership interest in Juul. Initially, Juul refused to
negotiate. But in the fall of 2018, Juul agreed to negotiate with
Altria, under the condition that Altria stop competing with Juul in
the market for e-cigarettes. In particular, Juul refused to proceed
with negotiations unless and until Altria had withdrawn its
products. At first, Altria refused. In October 2018, however,
Altria agreed and began to withdraw its e-cigarette products from
the market.
According to the complaint, the agreements between Altria and Juul
whereby Altria and Juul agreed to allocate the market for
e-cigarettes were anticompetitive. The Defendants' conduct has
illegally restrained competition in the relevant market in
violation of the Sherman and Clayton Acts. As a direct and
proximate result of the Defendants' anticompetitive conduct, prices
for e-cigarettes were raised, fixed and stabilized at
supracompetitive levels. Altria's investment in Juul and its exit
from the market eliminated its existing e-cigarette product and
halted its ongoing innovation efforts toward developing new and
improved products. Thus, consumers lost the benefit of current and
future head-to-head competition between Altria and Juul, and
between Altria and other competitors.
By these agreements, the Plaintiff contends, Altria and Juul agreed
to divide and allocate the market for e-cigarettes. By this
lawsuit, the Plaintiff seeks damages and injunctive relief for the
collusive and concerted restraint in trade orchestrated by the
Defendants.
Plaintiff Anthony Martinez purchased Juul products directly from
Juul during the relevant period.
Juul is the leading manufacturer of closed-system e-cigarettes,
generating over $1 billion in sales in 2018.[BN]
The Plaintiff is represented by:
Joseph R. Saveri, Esq.
Steven N. Williams, Esq.
Kevin Rayhill, Esq.
Anupama K. Reddy, Esq.
JOSEPH SAVERI LAW FIRM, INC.
601 California Street, Suite 1000
San Francisco, CA 94108
Phone: (415) 500-6800
Facsimile: (415) 395-9940
Email: jsaveri@saverilawfirm.com
swilliams@saverilawfirm.com
kquackenbush@saverilawfirm.com
areddy@saverilawfirm.com
ANTARES PHARMA: Bid to Dismiss Smith Class Suit Still Pending
-------------------------------------------------------------
Antares Pharma, Inc. said in its Form 10-K report filed with the
U.S. Securities and Exchange Commission on March 3, 2020, for the
fiscal year ended December 31, 2019, that the Defendants' motion
seeking dismissal of a class action suit initiated by Randy Smith
is still pending.
On October 23, 2017, Randy Smith filed a complaint in the District
of New Jersey, captioned Randy Smith, Individually and on Behalf of
All Others Similarly Situated v. Antares Pharma, Inc., Robert F.
Apple and Fred M. Powell ("Smith"), Case No. 3:17-cv-08945-MAS-DEA,
on behalf of a putative class of persons who purchased or otherwise
acquired Antares securities between December 21, 2016 and October
12, 2017, inclusive, asserting claims for purported violations of
Sections 10(b) and 20(a) of the Securities Exchange Act of 1934
against Antares, Robert F. Apple and Fred M. Powell.
The Smith complaint contends that defendants made false and/or
misleading statements and/or failed to disclose that: (i) Antares
had provided insufficient data to the FDA in connection with the
NDA for XYOSTED(R); and (ii) accordingly, Antares had overstated
the approval prospects for XYOSTED(R). On July 27, 2018, the court
entered an order appointing Serghei Lungu as lead plaintiff,
Pomerantz LLP as lead counsel, and Lite DePalma Greenberg, LLC as
liaison counsel for plaintiff.
On August 3, 2018, the parties submitted a stipulation and proposed
order, setting forth an agreed-upon schedule for responding to the
complaint, which the court granted. Pursuant to that order,
plaintiff filed a Consolidated Amended Class Action Complaint on
October 9, 2018. On November 26, 2018, defendants filed a motion to
dismiss.
Plaintiff filed an opposition to the motion on January 10, 2019 and
defendants filed a reply in support of their motion on February 25,
2019.
On July 2, 2019, the court dismissed the complaint in its entirety
without prejudice.
On July 29, 2019, plaintiff filed a Consolidated Second Amended
Class Action Complaint against the same parties alleging
substantially similar claims.
On September 12, 2019, defendants filed a motion to dismiss the
Consolidated Second Amended Class Action Complaint. Plaintiffs'
opposition was filed on October 28, 2019 and defendants' reply in
support of their motion was filed on November 27, 2019.
The Company believes that the claims in the Smith action lack merit
and intends to defend them vigorously.
No further updates were provided in the Company's SEC report.
Antares Pharma, Inc. focuses on developing and commercializing
self-administered parenteral pharmaceutical products and
technologies worldwide. The company was founded in 1978 and is
headquartered in Ewing, New Jersey.
ANTERO RESOURCES: Seeks 4th Cir. Review of Ruling in Romeo Suit
---------------------------------------------------------------
Defendant Antero Resources Corporation filed an appeal from the
District Court's decision in the lawsuit entitled Jacklin Romeo,
Susan S. Rine, and Debra Snyder Miller, individually and on behalf
of others similarly situated v. Antero Resources Corporation, Case
No. 1:17-cv-00088-IMK-MJA, in the U.S. District Court for the
Northern District of West Virginia at Clarksburg.
As previously reported in the Class Action Reporter, the Colorado
corporation, Antero Resources, failed to pay royalties to the
Plaintiffs under a lease agreement for land in West Virginia.
According to the complaint, the Plaintiffs allege that they
suffered monetary damages from not being paid royalties. The
Plaintiffs hold the Defendant responsible for allegedly breaching
their contractual agreement with by failing to make royalty
payments after June 1, 2007. The Plaintiffs argue that the Company
had to pay royalties "based upon prices received for marketable
residue gas and marketable natural gas liquids... without
deductions."
The appellate case is captioned as Antero Resources Corporation v.
Jacklin Romeo, et al., Case No. 20-205, in the United States Court
of Appeals for the Fourth Circuit.[BN]
Plaintiffs-Respondents JACKLIN ROMEO, individually and on behalf of
others similarly situated, et al., are represented by:
George A. Barton, Esq.
Stacy A. Burrows, Esq.
LAW OFFICES OF GEORGE A. BARTON, P.C.
7227 Metcalf Avenue
Overland Park, KS 66204
Telephone: 913-563-6250
Email: gab@georgebartonlaw.com
stacy@georgebartonlaw.com
- and –
Larry Lee Javins, II, Esq.
Taylor M. Norman, Esq.
BAILEY, JAVINS & CARTER, LC
P. O. Box 3712
Charleston, WV 25337-0000
Telephone: 304-345-0346
– and –
Howard Moses Persinger, III, Esq.
PERSINGER LAW OFFICE
237 Capitol Street
Charleston, WV 25301
Telephone: 304-346-9333
Defendant-Petitioner ANTERO RESOURCES CORPORATION is represented
by:
Kevin Charles Abbott, Esq.
LAW OFFICE OF KEVIN C. ABBOTT
812 Crossbow Court
McMurray, PA 15317
Telephone: (724) 941-2160
Email: kevin@kabbottlaw.com
- and –
W. Henry Lawrence, IV, Esq.
Shaina Danielle Massie, Esq.
Amy Marie Smith, Esq.
STEPTOE & JOHNSON PLLC
400 White Oaks Boulevard
Bridgeport, WV 26330
Telephone: (304) 933-8000
Email: hank.lawrence@steptoe-johnson.com
shaina.massie@steptoe-johnson.com
amy.smith@steptoe-johnson.com
– and –
Nicolle Renee Snyder Bagnell, Esq.
REED SMITH, LLP
225 5th Avenue
Pittsburgh, PA 15222
Telephone: (412) 288-7112
Email: nbagnell@reedsmith.com
ARCONIC INC: Ortiz Sues Over Unlawful Employment Practices
----------------------------------------------------------
ANDRES G. ORTIZ, as an individual and on behalf of all others
similarly situated, Plaintiff v. ARCONIC, INC., a Corporation,
ARCONIC GLOBAL FASTENERS & RINGS, INC., a Corporation, KEVITA ENG,
individual, DOES 1-10, individuals, and DOES 11-20, business
entities inclusive, Defendants, Case No. 20STCV12375 (Cal. Sup.
Ct., March 30, 2020) alleges that Defendants engaged in
retaliation and wrongful termination in violations of California
Labor Code and California Code of Regulations, intentional
infliction of emotional distress, and unfair business practices in
violation of B&P Code.
Plaintiff begun working with Defendants' Arconic Fastening Systems
(AFS) division on February 25, 2013 and was unlawfully terminated
by Defendant Eng after 6 years of dedicated work and commitment
because of the complaint he made regarding the barrel incident on
January 11, 2019. Plaintiff says his termination was acted with
malice by fabricating false reasons in order to cover up
Defendants' true discriminatory and retaliatory reasons for
engaging such adverse employment actions.
The complaint asserts that Plaintiff has suffered and will continue
to suffer mental, physical, and emotional distress, including but
not limited to humiliation, anxiety, nervousness, and depression.
Kevita Eng is the Human Resource Manager at the AFS.
Arconic Inc., formerly Alcoa Inc., is engaged in lightweight metals
engineering and manufacturing. [BN]
The Plaintiff is represented by:
Amir Mostafavi, Esq.
MOSTAFAVI LAW GROUP, APC
528 Palisades Dr., Suite 220
Pacific Palisades, CA 90272
Tel: (310)473-1111
Fax: (310)473-2222
Email: amir@mostafavilaw.com
BANK OF AMERICA: Fortinbras Appeals Decision in AEP Fund Suit
-------------------------------------------------------------
Objector Fortinbras Asset Management GmbH filed an appeal from the
District Court's Memorandum Opinion and Order issued on February
26, 2020, in the lawsuit styled ALASKA ELECTRICAL PENSION FUND, et
al. v. BANK OF AMERICA, CORPORATION, et al., Case No. 14-CV-7126
(JMF), in the U.S. District Court for the Southern District of New
York.
The Memorandum Opinion and Order overruled Fortinbras' objection
and held that the Claims Administrator and Class Counsel did not
err in finding Fortinbras' disputed claims invalid and excluding
them from the proposed distribution of the lawsuit's settlement.
As previously reported in the Class Action Reporter on March 12,
2020, District Court Judge Jesse M. Furman (i) granted the Lead
Counsel's motion for Court approval to make distributions of net
settlement funds to the claimants with valid claims, and (ii)
overruled the objection of Fortinbras Asset Management GmbH,
formerly known as Prospero Beteiligungsverwaltung GmbH.
Claimant-Appellant Fortinbras has filed an objection, on the ground
that Epiq wrongfully rejected certain of its claims.
In this long-lasting and complex class action, institutional
investors alleged that many of the world's largest banks illegally
manipulated the U.S. Dollar ISDAfix, a benchmark interest rate
incorporated into a broad range of financial derivatives. After
more than three years of litigation, the Plaintiffs reached
settlements with each Defendant, all of which were approved by the
Court, along with proposed plans of distribution. Pursuant to the
Court's Orders, the claims administrator, Epiq Systems, Inc.,
published notice of the settlements and received and reviewed
individual claims.
Following the settlements, Epiq distributed more than 59,000 notice
packets to potential class members advising them of the settlement.
Epiq ultimately received more than 31,000 claims before the filing
deadlines set by the settlements. Of those claims, Epiq determined
that 2,369 should be rejected in full and that 28,750 are eligible
for payment. Epiq valued 23,413 of those claims at equal to or
less than $100; of the remaining authorized claimants, 5,124 are
eligible to receive payments averaging $64,897.32 total from both
settlement funds, and 213 are eligible to receive payments
averaging $6,289.21 from the later settlement fund only.
The appellate case is captioned as Alaska Electrical Pension Fund,
et al. v. Bank Of America Corporation, et al., Case No. 20-1086, in
the U.S. Court of Appeals for the Second Circuit.[BN]
Plaintiffs Alaska Electrical Pension Fund, on behalf of itself and
all others similarly situated, et al., are represented by:
Christopher M. Burke, Esq.
Hal D. Cunningham, Esq.
SCOTT+SCOTT ATTORNEYS AT LAW LLP
600 W. Broadway, Suite 3300
San Diego, CA 92101
Telephone: (619) 233−4565
Facsimile: (619)−233−0508
Email: cburke@scott−scott.com
hcunningham@scott−scott.com
– and -
Daniel Lawrence Brockett, Esq.
Daniel Paul Cunningham, Esq.
Marc Laurence Greenwald, Esq.
Steig Olson, Esq.
Jonathan Bacon Oblak, Esq.
QUINN EMANUEL URQUHART & SULLIVAN LLP
51 Madison Avenue, 22nd Floor
New York, NY 10010
Telephone: (212) 849−7000
Facsimile: (212) 849 7100
Email: danbrockett@quinnemanuel.com
danielcunningham@quinnemanuel.com
marcgreenwald@quinnemanuel.com
steigolson@quinnemanuel.com
jonoblak@quinnemanuel.com
– and –
David W. Mitchell, Esq.
Patrick Joseph Coughlin, Esq.
Brian O. O'Mara, Esq.
Steven M Jodlowski, Esq.
ROBBINS GELLER RUDMAN & DOWD LLP
655 West Broadway, Suite 1900
San Diego, CA 92101
Telephone: (619) 231−1058
Facsimile: (619) 231−231−7423
Email: davidm@rgrdlaw.com
patc@rgrdlaw.com
bomara@rgrdlaw.com
sjodlowski@rgrdlaw.com
– and –
Stanley D. Bernstein, Esq.
Ronald Judah Aranoff, Esq.
BERNSTEIN LIEBHARD, LLP
10 East 40th Street
New York, NY 10016
Telephone: (212) 779−1414
Facsimile: (212) 779−3218
Email: bernstein@bernlieb.com
raranoff@wmd−law.com
– and –
Sylvia Sokol, Esq.
Kristen M. Anderson, Esq.
Thomas Kay Boardman, Esq.
SCOTT + SCOTT, L.L.P.
230 Park Avenue, 17th Floor
New York, NY 10169
Telephone: (646) 571−0612
Facsimile: (212) 223−6334
Email: ssokol@scott−scott.com
kanderson@scott−scott.com
tboardman@scott−scott.com
– and –
Jeremy Daniel Andersen, Esq.
QUINN, EMANUEL, URQUHART, OLIVER & HEDGES, LLP
865 South Figueroa Street, 10th Flr.
Los Angeles, CA 90017
Telephone: (213) 443−3000
Facsimile: (212) 443−3100
Email: jeremyandersen@quinnemanuel.com
– and –
Michael James O'Connor, Esq.
QUINN EMANUEL URQUHART & SULLIVAN, LLP
777 6th Street, 11th Floor
Washington, DC 20001
Telephone: (202) 538−8148
Facsimile: (202) 538−8100
Email: michaeloconnor@quinemanuel.com
– and –
Randi Dawn Bandman, Esq.
ROBBINS GELLER RUDMAN & DOWD LLP
9601 Wilshire Boulevard, Suite 510
Los Angeles, CA 90210
Telephone: (310) 859−3100
Facsimile: (310) 278−2148
Email: randib@rgrdlaw.com
Defendants Bank Of America Corporation, et al., are represented by
Adam Selim Hakki, Esq.
SHEARMAN & STERLING LLP
599 Lexington Avenue
New York, NY 10022
Telephone: (212) 848−4924
Facsimile: (646) 848−4924
Email: ahakki@shearman.com
Objector-Appellant Fortinbras Asset Management GmbH is represented
by:
Geoffrey Milbank Horn, Esq.
LOWEY DANNENBERG P.C.
44 South Broadway, Suite 1100
White Plains, NY 10601
Telephone: (914) 997−0500
Facsimile: (914) 997−0035
Email: ghorn@lowey.com
BARNES & NOBLE: Faces Delaware Class Suit
-----------------------------------------
Barnes & Noble Education, Inc. said in its Form 10-Q Report filed
with the Securities and Exchange Commission on March 3, 2020, for
the quarterly period ended January 25, 2020, that the company has
been named as a defendant in a purported class action suit pending
before the U.S.District Court for the District of Delaware.
On or about January 22, 2020, a purported class action complaint
was filed in the United States District Court for the District of
Delaware against the Company, along with several publishers,
another collegiate bookstore retailer, and an industry association
by Campus Book Company, Inc., BJJ Corporation, CBSKY, Inc., CBSNM,
Inc., and Renttext.com, Inc.
The plaintiffs claim, on their own behalf and on behalf of the
purported class, that the Company and the other defendants violated
Section 1 of the Sherman Act (15 U.S.C. Section 1), Section 2 of
the Sherman Act (15 U.S.C. Section 2), Section 13(a) of the
Robinson-Patman Act (15 U.S.C. Section 13(a)), and various state
antitrust and unfair trade practices laws for alleged activities in
connection with inclusive access and the sale of course materials
to universities and their students.
Barnes & Noblesaid, "We intend to vigorously defend this matter and
are currently unable to estimate any potential losses."
Barnes & Noble Education, Inc. is one of the largest contract
operators of physical and virtual bookstores for college and
university campuses and K-12 institutions across the United States.
The company is also one of the largest textbook wholesalers,
inventory management hardware and software providers, and a leading
provider of digital education solutions. The company is based in
Basking Ridge, New Jersey.
BED BATH & BEYOND: Faces Vitiello Securities Suit in New Jersey
---------------------------------------------------------------
Stephen and June Vitiello, Individually and On Behalf of All Others
Similarly Situated v. BED BATH & BEYOND INC., MARK J. TRITTON, MARY
A. WINSTON, and ROBYN M. D'ELIA, Case No. 2:20-cv-04240 (D.N.J.,
April 14, 2020), is brought on behalf of persons and entities that
purchased or otherwise acquired Bed Bath & Beyond securities
between October 2, 2019, and February 11, 2020, inclusive, seeking
to pursue claims against the Defendants under the Securities
Exchange Act of 1934.
On January 8, 2020, Bed Bath & Beyond withdrew its fiscal 2019
guidance, purportedly due to pressures on sales and profitability,
as well as a new strategic plan for the Company's operations. On
this news, the Company's share price fell $3.20, or over 19%, to
close at $13.4 per share on January 9, 2020, thereby, injuring
investors.
On February 11, 2020, Bed Bath & Beyond issued a press release
announcing preliminary fourth-quarter 2019 financial results.
Therein, the Company disclosed "a 5.4% decline in comparable sales
driven primarily by store traffic declines combined with inventory
management issues," including that "inventory within certain key
categories in the Bed Bath & Beyond assortment was too low or
out-of-stock during the period." On this news, the Company's share
price fell $3.06 per share, or over 20%, to close at $11.79 per
share on February 12, 2020, on unusually heavy trading volume.
According to the complaint, the Defendants made materially false
and/or misleading statements, as well as failed to disclose
material adverse facts about the Company's business, operations,
and prospects. Specifically, the Defendants failed to disclose to
investors: (1) that, due to "aggressive disposition of inventory,"
the Company lacked sufficient inventory in key categories to
support holiday sales; (2) that the Company's internal control over
inventory levels and financial reporting was not effective; (3)
that, as a result of the foregoing, the Company was likely to
experience reduced sales; and (4) that, as a result, the
Defendants' positive statements about the Company's business,
operations, and prospects, were materially misleading and/or lacked
a reasonable basis.
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 Plaintiffs purchased Bed Bath & Beyond securities during the
Class Period.
Bed Bath & Beyond is a retailer that sells a wide variety of
domestics merchandise and home furnishings. The Company operates
under many brand names, including Christmas Tree Shops, Harmon,
buybuy BABY, and Cost Plus World Market.[BN]
The Plaintiffs are represented by:
James E. Cecchi, Esq.
Lindsey H. Taylor, Esq.
Donald A. Ecklund, Esq.
CARELLA, BYRNE, CECCHI, OLSTEIN, BRODY & AGNELLO, P.C.
5 Becker Farm Road
Roseland, NJ 07068
Phone: (973) 994-1700
- and –
Robert V. Prongay, Esq.
Charles H. Linehan, Esq.
Pavithra Rajesh, Esq.
GLANCY PRONGAY & MURRAY LLP
1925 Century Park East, Suite 2100
Los Angeles, CA 90067
Phone: (310) 201-9150
Facsimile: (310) 432-1495
- and -
Howard G. Smith, Esq.
LAW OFFICES OF HOWARD G. SMITH
3070 Bristol Pike, Suite 112
Bensalem, PA 19020
Phone: (215) 638-4847
Facsimile: (215) 638-4867
BENIHANA MARINA: Fails to Pay All Wages, Iniguez Suit Alleges
-------------------------------------------------------------
SHEILA INIGUEZ v. BENIHANA MARINA CORP.; and DOES 1 through 50,
inclusive, Case No. 20SMCV00508 (Cal. Super., Los Angeles Cty.,
March 30, 2020), is brought on behalf of the Plaintiff and
similarly-aggrieved employees seeking civil penalties pursuant to
the Private Attorney General Act arising from the Defendants'
failure to pay all wages.
The Plaintiff alleges that the Defendants failed to pay all wages,
and failed to provide rest and meal periods.
The Plaintiff was employed by the Defendants from May 2019 through
December 2019 at their Santa Monica work site.[BN]
The Plaintiff is represented by:
Katherine J. Odenbreit, Esq.
Joshua D. Klein, Esq.
MAHONEY LAW GROUP, APC
249 E. Ocean Boulevard, Suite 814
Long Beach, CA 90802
Telephone: (562) 590-5550
Facsimile: (562) 590-8400
E-mail: kmahoney@mahoney-law.net
jklein@mahoney-law.net
BLUE APRON: Court Reverses Summary Judgment in Sciabacucchi Suit
----------------------------------------------------------------
In the case, MATTHEW B. SALZBERG, JULIE M.B. BRADLEY, TRACY BRITT
COOL, KENNETH A. FOX, ROBERT P. GOODMAN, GARY R. HIRSHBERG, BRIAN
P. KELLEY, KATRINA LAKE, STEVEN ANDERSON, J. WILLIAM GURLEY, MARKA
HANSEN, SHARON MCCOLLAM, ANTHONY WOOD, RAVI AHUJA, SHAWN CAROLAN,
JEFFREY HASTINGS, ALAN HENDRICKS, NEIL HUNT, DANIEL LEFF, and RAY
ROTHROCK, Defendants Below, Appellants, and BLUE APRON HOLDINGS,
INC., STITCH FIX, INC., and ROKU, INC., Nominal Defendants Below,
Appellants, v. MATTHEW SCIABACUCCHI, on behalf of himself and all
others similarly situated, Plaintiff Below, Appellee, Case No. 346,
2019 (Del.), Judge Karen L. Valihura of the Supreme Court of
Delaware reversed the decision of the Court of Chancery granting
Matthew Sciabacucchi's motion for summary judgment.
The Supreme Court of Delaware is asked to determine the validity of
a provision in several Delaware corporations' charters requiring
actions arising under the federal Securities Act of 1933 to be
filed in a federal court. Blue Apron Holdings, Inc., Roku, Inc.,
and Stitch Fix, Inc. are all Delaware corporations that launched
initial public offerings in 2017. Before filing their registration
statements with the United States Securities and Exchange
Commission, each company adopted a federal-forum provision ("FFP").
Appellee Sciabacucchi bought shares of each company in its initial
public offering or a short time later. On Dec. 29, 2017, he filed
a putative class-action complaint in the Court of Chancery against
the individuals who had served as the companies' directors since
they went public, and named the companies as nominal Defendants.
The complaint sought a declaratory judgment that the federal-forum
provisions are invalid under Delaware law.
The Court of Chancery granted the motion for summary judgment. In
reaching that result, the court examined its 2013 decision in
Boilermakers Local 154 Retirement Fund v. Chevron Corp., the
Court's 2014 decision in ATP Tour, Inc. v. Deutscher Tennis Bund,
federal case law, and what the Court of Chancery described as
"first principles" of Delaware corporate law. It decided that the
constitutive documents of a Delaware corporation cannot bind a
plaintiff to a particular forum when the claim does not involve
rights or relationships that were established by or under
Delaware's corporate law. Because the FFPs attempt to accomplish
that feat, the court held that the federal-forum provisions are
"ineffective and invalid."
Judge Valihura reviews the Court of Chancery's decision to grant
summary judgment de novo. A court may grant summary judgment only
if, based on the undisputed material facts, the moving party is
entitled to judgment as a matter of law. There are no material
facts in dispute in the appeal, and the issues on which she decides
the appeal concern the interpretation of the statutes governing the
permissible contents of a Delaware corporation's certificate of
incorporation. Statutory interpretation is a question of law,
which we review de novo. The Plaintiff must show that the
federal-forum provisions do not address a proper subject matter of
charter provisions under 8 Del. C. Section 102(b)(1).
Judge Valihura concludes that FFPs are a relatively recent
phenomenon designed to address the post-Cyan difficulties presented
by multi-forum litigation of Securities Act claims. The policies
underlying the Delaware General Corporation Law ("DGCL") include
certainty and predictability, uniformity, and prompt judicial
resolution to corporate disputes. The law strives to enhance
flexibility in order to engage in private ordering, and to defer to
case-by-case law development. Delaware courts attempt to achieve
judicial economy and avoid duplicative efforts among courts in
resolving disputes. FFPs advance these goals.
The General Assembly has also recognized the need to maintain
balance, efficiency, fairness, and predictability in protecting the
legitimate interests of all stakeholders, and to ensure that the
laws do not impose unnecessary costs on Delaware entities. FFPs do
not violate that sense of balance as they allow for litigation of
federal Securities Act claims in a federal court of the Plaintiff's
choosing, but also allow for consolidation and coordination of such
claims to avoid inefficiencies and unnecessary costs.
Finally, the DGCL was intended to provide directors and
stockholders with flexibility and wide discretion for private
ordering and adaptation to new situations. That a board's action
might involve a new use of plain statutory authority does not make
it invalid under the law, and the boards of Delaware corporations
have the flexibility to respond to changing dynamics in ways that
are authorized by the statutory law.
For the reasons set forth, Judge Valihura reversed the decision of
the Court of Chancery.
A full-text copy of the Supreme Court of Delaware's March 18, 2020
Order is available at https://is.gd/mkX60y from Leagle.com.
Kurt M. Heyman -- kheyman@hegh.law -- Melissa N. Donimirski --
mdonimirski@hegh.law -- HEYMAN ENERIO GATTUSO & HIRZEL LLP
Wilmington, Delaware; Jason M. Leviton -- jason@blockesq.com --
Joel A. Fleming -- joel@blockesq.com -- BLOCK & LEVITON LLP,
Boston, Massachusetts; Counsel for Plaintiff.
William B. Chandler III -- wchandler@wsgr.com -- Randy J. Holland
-- rholland@wsgr.com -- Bradley D. Sorrels, Lindsay Kwoka Faccenda
-- lfaccenda@wsgr.com -- WILSON SONSINI GOODRICH & ROSATI, P.C.,
Wilmington, Delaware; Boris Feldman , David J. Berger , WILSON
SONSINI GOODRICH & ROSATI, P.C., Palo Alto, California; Counsel
for
Defendants Katrina Lake, Steven Anderson, J. William Gurley, Marka
Hansen, Sharon McCollam, Anthony Wood, Ravi Ahuja, Shawn Carolan,
Jeffrey Hastings, Alan Hendricks, Neil Hunt, Daniel Leff, Ray
Rothrock, and Nominal Defendants Stitch Fix, Inc. and Roku, Inc.
Catherine G. Dearlove -- dearlove@rlf.com -- Sarah T. Andrade --
andrade@rlf.com -- RICHARDS, LAYTON & FINGER, P.A., Wilmington,
Delaware; Michael G. Bongiorno, WILMER CUTLER PICKERING HALE AND
DORR LLP, New York, New York; Timothy J. Perla, WILMER CUTLER
PICKERING HALE AND DORR LLP, Boston, Massachusetts; Counsel for
Defendants Matthew B. Salzberg, Julie M.B. Bradley, Tracy Britt
Cool, Kenneth A. Fox, Robert P. Goodman, Gary R. Hirshberg, and
Brian P. Kelley, and Nominal Defendant Blue Apron Holdings, Inc.
BP EXPLORATION: Denial of Review of Mueller's Compensation Upheld
-----------------------------------------------------------------
In the case, BP EXPLORATION & PRODUCTION, INCORPORATED; BP AMERICA
PRODUCTION COMPANY; BP, P.L.C., Requesting Parties-Appellants, v.
CLAIMANT ID 100319411, Objecting Party-Appellee, Case No. 19-30145
(5th Cir.), the U.S. Court of Appeals for the Fifth Circuit
affirmed the district court's denial of discretionary review of the
Settlement Program's calculation of the business economic loss
awarded to Claimant, Mueller Copper Tube Co., Inc.
The appeal is one of many arising out of the Deepwater Horizon
spill and the ensuing Economic and Property Damages Class Action
Settlement Agreement. BP appeals the district court's denial of
discretionary review of the Settlement Program's calculation of the
business economic loss awarded to the Claimant.
The Claimant submitted a claim for business economic loss to the
Deepwater Horizon Court Supervised Settlement Program ("CSSP"). In
order to ensure that Claimant's profit and loss statements ("P&Ls")
only reflected the activity of the claiming facility, the
Settlement Program accountants compared the Claimant's financial
statements of the copper tube profit center ("Divisional P&Ls")
with its gross sales general ledger statements ("Transaction Level
Sales Records"), which detailed all sales transactions for the
copper tube profit center. This filtering process resulted in new
P&Ls that the Settlement Program used to calculate Claimant's
award. Additionally, the record shows that the Settlement
Program's accountants compared Claimant's tax returns with its
Divisional P&Ls and sought clarification from Claimant via email
and a conference call regarding potential discrepancies. The
CSSP's Claims Administrator found Claimant eligible for
$29,701,243.19 in total compensation.
BP appealed the award to the internal Appeal Panel, arguing, inter
alia, that the award was based on inaccurate and inappropriate
financial documents, citing to substantial discrepancies in
Claimant's tax returns as evidence that the financials were
unreliable. The Claimant's affidavit of the CFO and Treasurer of
Mueller Industries, Inc. explained that these discrepancies stem
from the Claimant's parent company's transfer-pricing tax
preparation methodology. Upon its independent review, the Appeal
Panel rejected BP's final proposal of $0 and ultimately awarded
Claimant $27,412,374.17 in total compensation.
BP sought discretionary review of the Appeal Panel's decision in
district court, which was denied.
BP appealed, asserting that the district court abused its
discretion in denying review because the Appeal Panel's decision
misapplied the Settlement Agreement by failing to require the
Settlement Program to reconcile and resolve the material
discrepancies (millions of dollars) between the Claimant's
financials and its tax returns, an issue BP alleges is a recurring
issue on which Appeal Panels are split.
The Fifth Circuit holds that BP's arguments on appeal are
unavailing. The issues raised in the case are fact-specific,
centered around the Appeal Panel's analysis of the Claimant's
financials, and do not implicate an Appeal Panel split or
misapplication of the Settlement Agreement.
Ultimately, BP challenges the correctness of a discretionary
administrative decision in the facts of a single claimant's case.
The Fifth Circuit has repeatedly held that denial of review in
these cases is well within the district court's discretion.
Accordingly, the district court's judgment denying discretionary
review is affirmed.
A full-text copy of the Court's Jan. 15, 2020 Opinion is available
at https://is.gd/xiVfw7 from Leagle.com.
Don Keller Haycraft -- dkhaycraft@liskow.com -- for Requesting
Party-Appellant.
James Andrew Langan -- andrew.langan@kirkland.com -- for Requesting
Party-Appellant.
Jeffrey W. Willis -- jwillis@rh-law.com -- for Objecting
Party-Appellee.
Devin Chase Reid -- stoomey@liskow.com -- for Requesting
Party-Appellant.
Martin R. Martos, II -- martin.martos@kirkland.com -- for
Requesting Party-Appellant.
Michael Eber -- meber@rh-law.com -- for Objecting Party-Appellee.
R. Stanton Jones -- stanton.jones@arnoldporter.com -- for
Requesting Party-Appellant.
Christian D. Sheehan -- christian.sheehan@arnoldporter.com -- for
Requesting Party-Appellant.
Cameron B. Roberts -- croberts@rh-law.com -- for Objecting
Party-Appellee.
BPI SPORTS: Underfills Diet Supplement Containers, Garcia Claims
----------------------------------------------------------------
The case, DOREEN GARCIA, individually, and on behalf of a class of
similarly situated individuals, Plaintiff, v. BPI SPORTS, LLC, a
Florida limited liability company, Defendant, Case No.
3:20-cv-00620-WQH-AHG (S.D. Cal., March 31, 2020) arises from the
Defendant's alleged misleading business practices with respect to
the packaging and sale of BPI BCAA dietary supplement powders, and
substantially similar BPI products.
According to the complaint, the Defendant advertises and sells its
BPI Supplement Powders in sealed, opaque plastic containers that
contain much less product than the size of the containers
indicates. In reality, the containers are filled with an
unreasonable and unnecessary amount of non-functional empty space.
This intentionally deceptive packaging prevents the consumers
including the Plaintiff from directly seeing the product's
contents, and it leads reasonable consumers to believe that the
containers are filled with significantly more product than they
are, much to consumers' surprise after purchase.
BPI Sports, LLC is a Florida-based sports nutrition company
offering supplements, free workouts, diets, and fitness advice.
[BN]
The Plaintiff is represented by:
Steven R. Weinmann, Esq.
Tarek H. Zohdy, Esq.
Cody R. Padgett, Esq.
Trisha K. Monesi, Esq.
Capstone Law APC
1875 Century Park East, Suite 1000
Los Angeles, CA 90067
Telephone: (310) 556-4811
Facsimile: (310) 943-0396
Email: Steven.Weinmann@capstonelawyers.com
Tarek.Zohdy@capstonelawyers.com
Cody.Padgett@capstonelawyers.com
CAJUN OPERATING: Website Inaccessible to Blind, Alcazar Claims
--------------------------------------------------------------
JUAN ALCAZAR, individually and on behalf of all others similarly
situated, Plaintiff v. CAJUN OPERATING COMPANY, a Delaware
corporation; and DOES 1 to 10, inclusive, Defendants, Case No.
3:20-cv-02158-TSH (N.D. Cal., March 30, 2020) is a class action
complaint brought against Defendants for their alleged violations
of the Americans with Disabilities Act of 1990 and the Unruh Civil
Rights Act.
Plaintiff is a visually-impaired and legally blind person who
requires screen-reading software to read website content using his
computer.
Plaintiff alleges that Defendants failed to design, construct,
maintain, and operate its website https://www.churchs.com/ to be
fully and equally accessible to and independently usable by
visually-impaired people.
Plaintiff seeks a permanent injunction to cause a change in
Defendant's corporate policies, practices, and procedures so that
Defendant's website will become and remain accessible to blind and
visually-impaired consumers.
Cajun Operating Company owns, operates, and maintains
brick-and-mortar restaurant and its website provides consumers with
online access to information about coupons, restaurant locations,
delivery orders, club memberships, career and franchise
opportunities, nutritional facts, and allergen information. [BN]
The Plaintiff is represented by:
Bobby Saadian, Esq.
Thiago Coelho, Esq.
WILSHIRE LAW FIRM
3055 Wilshire Blvd., 12th Floor
Los Angeles, CA 90010
Tel: (213)381-9988
Fax: (213)381-9989
Email: bobby@wilshirelawfirm.com
press@wilshirelawfirm.com
CALIFORNIA: Court Dismisses Archer Prisoners Suit with Prejudice
----------------------------------------------------------------
Judge Dale S. Fischer of the U.S. District Court for the Central
District of California, Western Division, dismissed the case, JOHN
ARCHER, JOVAN NEALY, an MARCUS DIGGS, and 42 Absent Unamed
Plaintiffs, Plaintiffs, v. STEPHEN RETTER, DOE's 1 thru 10, and
CCHCS et al., Defendants, Case No. 2:20-cv-00759-DSF (JDE) (C.D.
Cal.), with prejudice.
On Jan. 24, 2020, Archer and Diggs, prisoners in the custody of the
California Department of Corrections and Rehabilitation ("CDCR") at
California State Prison in Lancaster, California, proceeding pro
se, presented for filing a "Civil Rights Complaint," citing 42
U.S.C. Section 1983, identifying themselves, Jovan Nealy and "42
Absent Unnamed" persons as the Plaintiffs, although only the
Plaintiffs signed the Complaint, and Stephen Retter, Does 1-10, and
"CCHCS" as the Defendants.
The Plaintiffs filed the Complaint on their own behalf and
purportedly on behalf of "500 similarly situated" and seek a
declaration "that they have a right not to have their personal and
families' private Doctor-patient privileged information of Health
care randomly stored in one place of practice that can be easily
sought after and stolen and/or hacked for fraudulent schemes in
identity fraud used for criminal activities, and further enjoin the
enforcement in cooperation of investigation, related to business
activities and job procedures that need be 'Ceased' because
security protocols had been and are a failure.
The Plaintiffs seek to proceed as a class action pursuant to Rule
23 of the Federal Rules of Civil Procedure on behalf of themselves
and others similarly situated who are incarcerated across the
State of California's 34 prisons. They allege that Defendant
Retter is CCHCS's "CEO Administrator," Doe #1 is a medical records
director, Doe #2 is a health care records technician supervisor,
and DOE #3 is a health care records technician.
They assert that on or about May 20, 2016, CCHCS mailed a letter to
members of the class stating that health care and other sensitive
information may have been stolen from an unattended laptop. The
Plaintiffs claim the Defendants' craftiness has been misleading by
fraudulent explanations about how the whole situation came about in
the seriousness of security breach in its carelessness to follow
work policy and procedures causing the Plaintiffs to, although
suffering no physical injury or illness, but instead "fear of
fraud" and a "threat of fear by identity theft/fraud."
The Plaintiffs allege three "causes of action": (1) the Defendants
breached it's duty of security to protect health care information;
(2) the Defendants with malice intent and careless disregard in
that of foreseeability and certainty of the Plaintiffs and others
in class similarly situated are in and uneasy position of future
risk of identity fraud; and (3) Defendants Stephen Retter CEO and
designee administrator of CCHCS" and Does 1-3 "caused injury" to
the Plaintiffs by not properly monitoring employees and security.
The Plaintiffs seek a restraining order, injunctive relief
prohibiting the Defendants from harassment to become a nuisance for
filing the lawsuit and damages, among other things.
On Jan. 29, 2020, after being advised of the defects set forth, the
Plaintiffs were ordered to, within 30 days, either file an amended
complaint or file a notice of an intent to proceed with the
Complaint as alleged. Although Plaintiff Archer requested and
received additional time to pay the unpaid filing fee, the
Plaintiffs did not seek additional time to otherwise comply with
the Order and did not file an amended complaint or a notice of
intent within 30 days of the Order.
Under 28 U.S.C. Section 1915(A)(b), the Court must dismiss the
Complaint if it is frivolous or malicious, fails to state a claim
on which relief may be granted, or seeks monetary relief against a
defendant who is immune from such relief. Judge Fischer finds that
the Complaint fails to state a claim upon which relief may be
granted and seeks damages from a Defendant who is immune from such
relief and therefore must be dismissed.
According to the Court, the Complaint fails for several reasons.
First, the three "causes of action" do not, in a non-conclusory
fashion, allege what federal statutory or constitutional rights
were violated. The allegations in the Complaint, other than labels
and conclusions, do not raise a right to relief above the
speculative level and do not provide "fair notice" of the claim
being asserted or "the grounds upon which that claim rests" and
thus fail to state a claim.
Second, although the Complaint identifies five Defendants, one
entity and four individuals, it repeatedly makes allegations
against collective "Defendants" without specifying which defendants
did what. In so doing, the Complaint does not provide notice to
each defendant of what action or inaction by that defendant caused
any alleged constitutional harm.
Third, the California Correctional Health Care Services and its
officials sued in their official capacities are not subject to
claims for damages under Section 1983. Thus, to the extent the
Complaint asserts claims for damages against CCHCS or official
capacity claims for damages against CCHCS employees, those claims
are barred.
Fourth, although the Complaint is sometimes contradictory, the
essence of the Plaintiffs' claims sound in negligence, with
assertions of "carelessness," a "negligent act," a "breach of
duty," "careless disregard." Such allegations are insufficient to
show a constitutional violation under Section 1983. As the
Complaint seeks damages from a party immune from such relief and
fails to state a claim on which relief may be granted, it must be
dismissed.
Next, Judge Fischer finds that the purported class claims are
improper, as is the Plaintiffs' effort to act on behalf of Jovan
Nealy, who did not sign the Complaint or otherwise appear in the
action. The dismissal is against Plaintiffs John Archer and Marcus
Diggs only, as Jovan Nealy never became a party to the action.
Finally, although leave to amend a deficient pleading should be
granted if the defects could be corrected, especially if the
plaintiff is pro se, where it is absolutely clear that further
amendment cannot cure the defects, there is no need to prolong the
litigation by permitting further amendment. In the case, the Judge
finds that further leave is not warranted as it is absolutely clear
that further leave to amend would not cure the defects. As he
finds further amendment would be futile, dismissal will be without
leave to amend and with prejudice.
For the foregoing reasons, Judge Fischer dismissed the action with
prejudice. Judgment be entered in accordance with the foregoing.
A full-text copy of the Court's March 18, 2020 Memorandum & Order
is available at https://is.gd/nqgRtg from Leagle.com.
John Archer, Plaintiff, pro se.
Jovan Nealy, Plaintiff, pro se.
Marcus Diggs, Plaintiff, pro se.
CELEBRITY CRUISES: Nedeltcheva Sues Over Exposure to COVID-19
-------------------------------------------------------------
Alexandra Nedeltcheva, on her own behalf and on behalf of all other
similarly situated crewmembers working aboard CELEBRITY cruise
vessels v. CELEBRITY CRUISES INC., Case No. 1:20-cv-21569-UU (S.D.
Fla., April 14, 2020), arises from the Defendant's alleged careless
and continuous failure to protect its crewmembers assigned to work
aboard the vessels from COVID-19.
The Plaintiff alleges that the Defendant fails to protect its
crewmembers despite having prior notice pertaining to the dangerous
conditions and/or explosive contagiousness associated with COVID-19
aboard its vessels from previous passengers, crewmembers and/or
other invitees that the Defendant allowed aboard the vessels and/or
actively granted access to same.
Despite having notice that COVID-19 was and/or likely was present
aboard the vessels, the Defendant glaringly failed to follow even
the most basic safety precautions after acquiring such notice, such
as timely quarantining crewmembers stationed aboard the vessels,
timely providing crewmembers stationed aboard the vessels masks
and/or timely requiring them to observe social distancing measures
aboard the vessels, the Plaintiff avers. Instead, in an alarming
lack of urgency, the Defendant has allowed its crewmembers to eat
in buffet settings aboard the vessels, mandated their participation
in shipboard drills, and even permitted crewmembers to attend crew
parties aboard the vessels. The Plaintiff insists that the
Defendant's egregious failure to protect its employees has already
resulted in hundreds of positive COVID-19 cases and what is more
likely thousands given that there is limited testing being done on
its vessels.
As a result of its careless conduct, the Defendant negligently
exposed and is currently exposing thousands of its crewmembers to
COVID-19, the Plaintiff argues. Such harm includes these
crewmembers suffering from lung injuries caused by COVID-19 and/or
permanently reduced lung capacity, complications and/or further
injury/ies caused by contracting COVID-19 in conjunction with
pre-existing illness and/or medical conditions and/or death.
The Plaintiff was a crewmember, who worked for the Defendant aboard
its vessels.
CELEBRITY CRUISES INC., is a foreign entity, which conducts its
business from its principal place of business in Miami,
Florida.[BN]
The Plaintiff is represented by:
Jason R. Margulies, Esq.
Michael A. Winkleman, Esq.
Jacqueline Garcell, Esq.
L. Alex Perez, Esq.
LIPCON, MARGULIES, ALSINA & WINKLEMAN, P.A.
One Biscayne Tower, Suite 1776
2 South Biscayne Boulevard
Miami, FL 33131
Phone: (305) 373-3016
Facsimile: (305) 373-6204
Email: jmargulies@lipcon.com
mwinkleman@lipcon.com
jgarcell@lipcon.com
aperez@lipcon.com
COLLECTO INC: Faces Church FDCPA Suit in District of New Jersey
---------------------------------------------------------------
A class action lawsuit has been filed against Collecto, Inc. The
case is captioned as CLIFFORD J. CHURCH, individually and on behalf
of those similarly situated v. COLLECTO, INC. doing business as:
EOS CCA; US ASSET MANAGEMENT, INC.; and JOHN DOES 1 TO 10, Case No.
2:20-cv-03523-KM-ESK (D.N.J., April 1, 2020).
The case is assigned to the Hon. Judge Kevin McNulty.
The lawsuit alleges violation of Fair Debt Collection Practices
Act.
Collecto operates as a debt management and recovery resource
company.[BN]
The Plaintiff is represented by:
Yongmoon Kim, Esq.
KIM LAW FIRM LLC
411 Hackensack Ave., Ste. 701
Hackensack, NJ 07601
Telephone: (201) 273-7117
Facsimile: (201) 273-7117
E-mail: ykim@kimlf.com
CONAIR CORPORATION: Hergert Liability Suit Moved to N.D. Illinois
-----------------------------------------------------------------
The class action lawsuit captioned as EMILY HERGERT and JULIE
MCCLANAHAN, individually and on behalf of all others similarly
situated v. CONAIR CORPORATION, a Delaware corporation authorized
to do business in the State of Illinois, Case No. 2020-L-001943
(Filed Feb. 18, 2020), was removed from the Illinois Circuit Court,
Cook County, to the U.S. District Court for the Northern District
of Illinois on March 31, 2020.
The Northern District of Illinois Court Clerk assigned Case No.
1:20-cv-02062 to the proceeding.
The Plaintiffs bring this complaint against Conair for products
liability claim alleging that they were seriously injured while
using a hair dryer designed, manufactured, assembled, and sold by
Conair.
Conair is an American company based in Stamford, Connecticut which
sells small appliances, personal care products, and health and
beauty products for both professionals and consumers.[BN]
The Defendant is represented by:
Kevin G. Owens, Esq.
JOHNSON & BELL, LTD.
33 West Monroe Street, Suite 2700
Chicago, IL 60603-5404
Telephone: (312) 372-0770
Facsimile: (312) 372-9818
E-mail: owensk@jbltd.com
- and -
Ryan D. Saba, Esq.
ROSEN SABA, LLP
9350 Wilshire Boulevard, Suite 250
Beverly Hills, CA 90212
Telephone: (310) 285-1727
Facsimile: (310) 285-1728
E-mail: rsaba@rosensaba.com
COVETRUS INC: Continues to Defend Cops Retirement System Suit
-------------------------------------------------------------
Covertus, Inc. said in its Form 10-K report filed with the U.S.
Securities and Exchange Commission on March 3, 2020, for the fiscal
year ended December 31, 2019, that the company continues to defend
a class action suit initiated by the City of Hollywood (Florida)
Police Officers' Retirement System.
On September 30, 2019, the City of Hollywood (Florida) Police
Officers' Retirement System filed a putative securities class
action lawsuit in the United States District Court for the Eastern
District of New York, purportedly on behalf of purchasers of
Covetrus common stock from February 8, 2019 through August 12,
2019, against the Company, Henry Schein, Inc., its former Chief
Executive Officer and President, and its former Chief Financial
Officer.
The complaint alleges that Defendants violated Sections 10(b) and
20(a) of the Exchange Act by making allegedly false and misleading
statements and omissions, primarily regarding the Company's
financial prospects and the integration costs relating to the
business combination involving the Animal Health Business and Vets
First Choice.
The suit seeks unspecified damages, fees, interest, and costs.
Covertus said, "We intend to defend the matter vigorously. Given
the uncertainty of litigation, the preliminary stage of the case,
and the legal standards that must be met for, among other things,
class certification and success on the merits, we cannot estimate
the reasonably possible loss or range of loss that may result from
this action."
Covertus, Inc. is a global animal-health technology and services
company dedicated to supporting the companion, equine, and
large-animal veterinary markets. Its mission is to provide the best
products, services, and technology to veterinarians and
animal-health practitioners ("Customers") across the globe, so they
can deliver exceptional care to their patients ("Animal Owners")
when and where it is needed. The company is based in Portland,
Maine.
CR ENGLAND: Clarke Labor Class Suit Removed to C.D. California
--------------------------------------------------------------
The class action lawsuit captioned as JOHN CLARKE, an individual,
and on behalf of others similarly situated v. C.R. ENGLAND, INC., a
Utah Corporation; and DOES 1 through through 50, inclusive, Case
No. 19STCV23568 (Filed Feb. 12, 2020), was removed from the
Superior Court of the State of California for the County of Los
Angeles to the U.S. District Court for the Central District of
California on April 1, 2020.
The Central District of California Court Clerk assigned Case No.
2:20-cv-01411 to the proceeding. The case is assigned to the Hon.
Judge Percy Anderson.
The Plaintiff alleges that the Defendants failed to provide
required meal periods or to pay compensation in lieu, in violation
of the California Labor Code.
CR England provides transportation services. The Company offers
truck driving training, satellite tracking, communication, fleet
billing, load tracking, electronic commerce, order consolidation,
route optimization, and transport modeling services.[BN]
The Defendants are represented by:
Drew Hansen, Esq.
Seth Goldstein, Esq.
J. Randall Boyer, Esq.
NOSSAMAN LLP
18101 Von Karman Avenue, Suite 1800
Irvine, CA 92612
Telephone: 949 833 7800
Facsimile: 949 833 7878
E-mail: dhansen@nossaman.com
sgoldstein@nossaman.com
jboyer@nossaman.com
CSX TRANS: Billingsley FMLA Suit Moved from Florida to Maryland
---------------------------------------------------------------
The class action lawsuit captioned as Jason Billingsley, Jeremy
Clifford, Mike Robbins, Bryan Stutz, and Kyle Wood, individually
and on behalf of others similarly situated v. CSX Transportation,
Inc., Case No. 3:19-cv-0085 (Filed July 23, 2019), was transferred
from the U.S. District Court for Middle District of Florida to the
U.S. District Court for the District of Maryland on April 1, 2020.
The District of Maryland Court Clerk assigned Case No.
1:20-cv-00858-RDB to the proceeding. The case is assigned to the
Hon. Judge Richard D. Bennett.
The lawsuit alleges violation of the Family Medical Leave Act. The
Plaintiff contends that CSX has engaged in a brazen pattern and
practice of unlawfully discouraging FMLA leave and retaliating
against workers, who rely on the FMLA's protections.
CSX operates a 24-hour-a-day, 365-day-a-year business, meaning
employees are needed for work on weekends and holidays. While CSX's
employees understand that working on weekends and holidays comes
with the territory, they did not anticipate having to work through
serious illnesses, miss their children's births, or choose between
caring for their sick loved ones and keeping their jobs, says the
complaint.
CSX is a Class I freight railroad operating in the eastern United
States and the Canadian provinces of Ontario and Quebec.[BN]
The Plaintiffs are represented by:
Audrey Schechter, Esq.
LAW OFFICES OF AUDREY HILDES SCHECHTER
P.O. Box 445
Largo, FL 33779
E-mail: audreyschechterlaw@gmail.com
- and -
Nicholas D. Thompson, Esq.
THE MOODY LAW FIRM
500 Crawford St., No. 200
Portsmouth, VA 23704
Telephone: (757) 399-8906
Facsimile: (757) 397-7257
E-mail: nthompson@moodyrrlaw.com
DISTRICT OF COLUMBIA: Fails to Contain COVID-19, Banks et al Claim
------------------------------------------------------------------
EDWARD BANKS, D'ANGELO PHILLIPS, KEON JACKSON, and ERIC SMITH,
Plaintiffs v. QUINCY BOOTH, in his official capacity as Director of
the District of Columbia Dep't of Corrections, and LENNARD JOHNSON,
in his official capacity as Warden, Defendants, Case No.
1:20-cv-00849-CKK (D.D.C., March 30, 2020) is a class action
complaint brought against Defendants for their alleged violations
of the rights under the Fifth Amendment's Due Process Clause and
the Eight Amendment's protection against cruel and unusual
punishment, and the COVID-19 Response Emergency Amendment Act of
2020.
According to the complaint, because of the COVID-19 outbreak, the
District of Columbia's Department of Corrections (DOC) has five
confirmed cases of COVID-19. Allegedly, Defendants failed to
implement many basic procedures such as distributing sufficient
hygienic products and providing prompt medical attention and
testing to those with COVID-19 symptoms, thereby gravely
jeopardized the safety of Plaintiffs and all other approximately
1,600 individuals confined in the DOC.
Plaintiffs seek class-wide relief requiring Defendants to join
other jurisdictions in reducing the population in their facilities
and to implement other basic policies and procedures that would
mitigate the risk of Plaintiffs' health and safety.
Plaintiffs are currently in Defendant's custody; include a pretrial
detainee at CTF, a pretrial detainee at CDF, a post-conviction
detainee at CTF, and a post-conviction detainee at CDF.
Quincy Booth and Lennard Johnson are the leaders of the District of
Columbia Dep't of Corrections, which operates two physically
connected jail buildings, the Correctional Treatment Facility (CTF)
and the Central Detention Facility (CDF). [BN]
The Plaintiffs are presented by:
Steven Marcus, Esq.
Jonathan Anderson, Esq.
Jenna Cobb, Esq.
PUBLIC DEFENDER SERVICE FOR THE
DISTRICT OF COLUMBIA
633 Indiana Avenue N.W.
Washington, D.C. 20004
Tel: 202-824-2524
Fax: 202-824-2525
Email: smarcus@pdsdc.org
- and –
Scott Michelman, Esq.
Arthur B. Spitzer, Esq.
Michael Perloff, Esq.
AMERICAN CIVIL LIBERTIES UNION FOUNDATION
OF THE DISTRICT OF COLUMBIA
915 15th Street NW, Second Floor
Washington, D.C. 20005
Tel: 202-457-0800
Email: smichelman@acludc.org
DO LAB INC: Jimenez Sues Over Failure to Refund Festival Tickets
----------------------------------------------------------------
Yesenia Jimenez, individually and on behalf of all others similarly
situated v. DO LAB, INC., Case No. 2:20-cv-03462 (C.D. Cal., April
14, 2020), seeks relief on behalf of all ticket holders of the
Defendant's Lightning in a Bottle Festival for breach of express
warranties, negligent misrepresentation, fraud, unjust enrichment,
money had and received, conversion, breach of contract, and for
violations of the California Consumer Legal Remedies Act, Unfair
Competition Law and False Advertising Law.
According to the complaint, the Defendant has made the
unconscionable decision to retain its customers ticket fees while
cancelling its famous Lightning in a Bottle Festival, as the novel
coronavirus, COVID-19, rages throughout the world and the United
States economy has gone into a deep recession. The Defendant sold
tickets to its Festival, promising to host the Festival from May
20th to May 25th, 2020. To attend the Defendant's Festival
consumers could purchase four-day general admission passes that
started at $319 plus fees and five day passes that started at $389
plus fees. Indeed, the Defendant even offered tickets for as high
as $999 for this year's festival. Customers could pay for the
tickets in full, or had the option to purchase the tickets on
payment plans.
On March 13, 2020, the Defendant announced that it was cancelling
its Festival for 2020. The Defendant has not refunded any consumers
despite cancelling its Festival, and has refused to do so in the
future. Indeed, in an email to ticketholders, the Defendant
anticipated that its decision to not refund customers "will not be
received well," but tried to justify the egregious practice by
claiming that Defendant is "a small family business" and does not
have "deep pockets or outside investors."
But Defendant is not some "mom and pop" operation, the Plaintiff
contends. The Defendant reportedly sold over 27,000 tickets to the
Lightning in a Bottle festival in 2018. Assuming that the Defendant
sold approximately the same amount of tickets for the 2020
festival, with cheapest tickets that "start" at "$319 plus fees,"
it appears that the Defendant has collected at least $8 million
worth of ticket sales that it now refuses to refund, and likely
well over $10 million. Accordingly, the Defendant has unjustly
enriched itself by retaining the ticket fees of thousands of
consumers while simultaneously cancelling its Festival in its
entirety, says the complaint.
Plaintiff Jimenez purchased a ticket a four-day general admission
pass to Lightning in a Bottle on a payment plan for $362.21.
The Defendant is the operator of Lightning in a Bottle, an annual
music festival located in the Central Valley region of
California.[BN]
The Plaintiff is represented by:
Yeremey Krivoshey, Esq.
Brittany S. Scott, Esq.
BURSOR & FISHER, P.A.
1990 North California Blvd., Suite 940
Walnut Creek, CA 94596
Phone: (925) 300-4455
Facsimile: (925) 407-2700
Email: ykrivoshey@bursor.com
bscott@bursor.com
- and -
Scott A. Bursor, Esq.
BURSOR & FISHER, P.A.
2665 S. Bayshore Dr., Ste. 220
Miami, FL 33133-5402
Phone: (305) 330-5512
Facsimile: (305) 676-9006
Email: scott@bursor.com
ENSURETY VENTURES: Hirsch TCPA Suit Dismissal with Prejudice Upheld
-------------------------------------------------------------------
In the case, AARON HIRSCH, individually and on behalf of all others
similarly situated, Plaintiff-Appellant, v. ENSURETY VENTURES, LLC,
d.b.a. Omega Autocare, LYNDON SOUTHERN INSURANCE COMPANY, et al.,
Defendants-Appellees, Case No. 19-13527 (11th Cir.), the U.S. Court
of Appeals for the Eleventh Circuit affirmed the dismissal with
prejudice of Hirsch's Revised Second Amended Complaint ("RSAC") as
an impermissible shotgun pleading that fails to comply with the
requirements of Federal Rule of Civil Procedure 8(a).
On Oct. 30, 2017, Hirsch filed his first Complaint against Ensurety
and Fortegra Financing Corp., alleging violations of the Telephone
Consumer Protection Act ("TCPA"). The gist of his allegations was,
and is, that Ensurety, under the trade name Omega Autocare, and
Fortegra, which provides underwriting services to Omega, have been
responsible for unlawful telemarketing calls that Hirsch has
received which advertise Omega Autocare automobile warranty
policies. Specifically, Hirsch alleged that the Defendants made
unsolicited and unauthorized calls using an automated telephone
dialing system or pre-recorded/artificial voice to residential and
cellular telephones for the purpose of marketing their products
and/or services.
The Complaint contained six counts: Counts I and II allege
violations by the defendants of 47 U.S.C. Section 227(b)(1)(A),
Counts III and IV allege violations by the Defendants of Section
227(b)(1)(B), and Counts V and VI allege violations by the
Defendants of Section 227(c). Hirsch requested that his Complaint
be certified as a class action, and sought an injunction requiring
the Defendants to cease all telemarketing calls, as well as an
award of statutory damages under the TCPA for members of the
class.
The District Court struck the Complaint sua sponte, finding that it
constituted an impermissible shotgun pleading because all six
counts of the Complaint incorporated the allegations of each of the
previous counts by reference. Hirsch then filed an Amended
Complaint containing the same six counts and theories of liability,
asserted against the same two Defendants. Both the Defendants
independently moved to dismiss the Amended Complaint, and the
motion was referred to a Magistrate Judge to prepare a Report and
Recommendation ("R&R").
In evaluating Omega's motion to dismiss, the Magistrate Judge
concluded that the Amended Complaint failed to state a claim under
Counts I and II because Hirsch did not allege that his
voice-over-Internet protocol ("VoIP") telephone service was a
service for which the called party is charged for the call," as
required by Section 227(b)(1)(A). Additionally, the Magistrate
Judge recommended that Fortegra's motion to dismiss be granted
because, while the Amended Complaint indicated that the
telemarketing calls were advertising Omega automobile warranty
policies, it did not sufficiently allege a relationship between
Fortegra and Omega and did not indicate which the Defendant is
responsible for which actions. Thus, the R&R recommended that the
Amended Complaint be dismissed in its entirety without prejudice,
and the recommendation was adopted by the District Court.
Hirsch then filed a Second Amended Complaint and a Corrected Second
Amended Complaint, which were both stricken by the District Court
without prejudice because they sought to add new defendants without
receiving leave of Court. Hirsch then filed the RSAC naming seven
Defendants: Lyndon Southern Insurance Company, Insurance Company of
the South, LOTSolutions, Inc., Auto Knight Motor Club, Inc., EGV
Companies, Inc., Ensurety, Inc., and Ensurety Ventures, LLC, doing
business as Omega Autocare.
The RSAC contains various general factual allegations regarding the
interrelationship between each of the Defendant parties, alleging
that certain of the Defendants "directly or indirectly market"
automotive policies on behalf of Omega, and that some insure
Omega's vehicle warranty contracts or assist in the process of
doing so. Three of the Defendants, Hirsch alleges, are "alter-egos
of one another" and collectively form the Omega Autocare business.
According to Hirsch, while the Defendants themselves do not make
the unlawful telemarketing robocalls, they find and hire non-party
call centers, and instruct those entities to make the calls to
consumers. Hirsch alleges that all of the Defendants play a role
in enlisting the services of call centers to send unlawful calls,
and that all the Defendants "are vicariously liable for the illegal
telemarketing practices."
The RSAC contains nine counts, with the first six counts being
identical to those alleged in the Amended Complaint, and the final
three counts alleging violations of identical provisions of
Maryland law. Like the Amended Complaint, the RSAC alleges under
each count that all the Defendants, either directly or through
their agents, made the unauthorized calls that violated three
different provisions of the TCPA, and that the Defendants'
violations were "knowing and/or willful." All the Defendants moved
to dismiss the RSAC, making similar arguments that it fails to
improve on the pleading deficiencies leading to dismissal of the
first Amended Complaint by continuing to improperly lump various
Defendants together, particularly because the RSAC now names seven
Defendants instead of two.
The Magistrate Judge entered a Report and Recommendation ("R&R") on
the Defendants' motions to dismiss the RSAC. Similar to the first
R&R, the Magistrate Judge concluded that Hirsch had not cured the
defects in his pleading, and that dismissal continues to be
appropriate. The R&R found that the RSAC is still "a shotgun
pleading" that makes it unclear what theory of liability the
Plaintiff is pursuing and/or which Defendants or non-parties are
responsible for which actions. Similarly, the Magistrate Judge
found that the RSAC does not qualify as a "short and plain
statement" as required by Fed. R. Civ. P. 8.
In sum, the R&R recommended that the RSAC be dismissed but also
recommended that Hirsch be provided with one final opportunity to
replead, though it recognized that "the Court could arguably
dismiss the RSAC with prejudice for failing to cure the subject
defects. The District Court overruled Hirsch's objections to the
R&R and adopted it, agreeing that it was an impermissible shotgun
pleading, but chose not to give Hirsch another opportunity to
replead, instead dismissing the RSAC with prejudice.
Hirsch appealed from the District Court's order. First, he
contends that his RSAC was not a shotgun pleading and that
dismissal was improper.
The Eleventh Circuit holds that Hirsch's RSAC is a shotgun
pleading. Each of the nine counts "re-alleges and incorporates" the
allegations of the entire rest of the complaint and all previous
counts. Like in Hirsch's Complaint and Amended Complaint, each
count alleges that the TCPA was violated by the Defendants, either
directly or through their agents, without explaining which the
Defendant was responsible for the calls. Similarly, without any
clarification provided, Hirsch alleges that the foregoing acts and
omissions of the Defendants constitute numerous and multiple
violations of the TCPA, but in no count or claim does he state
which act or omission was committed by which Defendant.
Hirsch's RSAC is a shotgun pleading under our precedent and is not
a short and plain statement of the claim showing that Hirsch is
entitled to relief. Thus, the District Court did not err in
granting the Defendants' motion to dismiss, rules the Eleventh
Circuit.
The Eleventh Circuit now turns to Hirsch's argument that it was
inappropriate for the District Court to dismiss the RSAC with
prejudice. It finds that Hirsch cannot get around a dismissal with
prejudice by merely adding new Defendants without altering his
impermissible style of pleading. The fact remains that Hirsch's
RSAC is still an impermissible shotgun pleading, whether against
two Defendants or seven, and Hirsch had already been put on notice
by the District Court that his pleadings were insufficient. And as
the District Court lamented, Hirsch compounded the difficulty
associated with reviewing the RSAC where the number of defendants
grew from 2 to 7. The Eleventh Circuit finds that the District
Court did not abuse its discretion in dismissing the RSAC with
prejudice because the Court provided Hirsch with multiple warnings
that his pleadings were inadequate, inappropriate shotgun
pleadings, and those warnings went unheeded.
Based on the foregoing, the Eleventh Circuit affirms the dismissal
with prejudice of Hirsch's Revised Second Amended Complaint.
A full-text copy of the Eleventh Circuit's March 18, 2020 Order is
available at https://is.gd/wyElgK from Leagle.com.
James F. Bogan, III -- jbogan@kilpatricktownsend.com -- for
Defendant-Appellee.
John H. Pelzer, for Defendant-Appellee.
Lane Lanier Vines -- lvines@bm.net -- for Plaintiff-Appellant.
Steven G. Wenzel -- swenzel@wfclaw.com -- for Plaintiff-Appellant.
Michael Dell'Angelo -- mdellangelo@bm.net -- for
Plaintiff-Appellant.
Beth-Ann E. Krimsky -- beth-ann.krimsky@gmlaw.com -- for
Defendant-Appellee.
William L. Tucker, for Defendant-Appellee.
Jonathan Zachary DeSantis -- jdesantis@cfjblaw.com -- for
Plaintiff-Appellant.
Jeffrey H. Fisher -- jfisher@kilpatricktownsend.com -- for
Defendant-Appellee.
Max F. Maccoby -- maccoby@washglobal-law.com -- for
Plaintiff-Appellant.
Kristin Mallatt Crall, for Plaintiff-Appellant.
FITNESS INT'L: Barnett Seeks Refund of Unearned Membership Fees
---------------------------------------------------------------
The case, KIP BARNETT, individually and on behalf of all others
similarly situated, Plaintiff v. FITNESS INTERNATIONAL, LLC d/b/a
LA FITNESS, Defendant, Case No. 0:20-cv-60658 (S.D. Fla., March 30,
2020) arises from Defendant's alleged unjust enrichment and
unlawful conduct by failing to reimburse unearned membership fees
to its members.
According to the complaint, Defendant voluntarily closed its
fitness facilities around the country on or about March 16, 2020
through April 1, 2020 due to COVID-19 outbreak. Allegedly,
Defendant kept millions of dollars in unearned membership fees
instead of providing a much-needed refund to its members.
Plaintiff has been a member of Defendant's fitness facilities for
over 14 years and has a month-to-month membership agreement with
Defendant.
Fitness International, LLC is a fitness facility. [BN]
The Plaintiff is represented by:
Manuel S. Hiraldo, Esq.
HIRALDO P.A.
401 E. Las Olas Blvd., Suite 1400
Ft. Lauderdale, FL 33301
Tel: 954-400-4713
Email: mhiraldo@hiraldolaw.com
- and –
Jibrael S. Hindi, Esq.
THE LAW OFFICES OF JIBRAEL S. HINDI
110 SE 6th Street, Suite 1744
Ft. Lauderdale, FL 33301
Tel: 954-628-5793
Email: jibrael@jibraellaw.com
FLYWHEEL SPORTS: Ct. Orders Arbitration in Henricks TCPA Suit
--------------------------------------------------------------
In the case, CHRISTINA HENRICKS, individually and on behalf of all
others similarly situated, Plaintiff, v. FLYWHEEL SPORTS, INC., and
DOES 1 through 10, inclusive, and each of them, Defendants, Case
No. 19 Civ. 895 (PGG) (S.D. N.Y.), Judge Paul G. Gardephe of the
U.S. District Court for the Southern District of New York granted
Flywheel's motion to compel arbitration and to stay the action
pending arbitration.
On Jan. 29, 2019, Plaintiff Henricks commenced the putative class
action alleging that Defendant Flywheel violated the Telephone
Consumer Protection Act by sending unwanted text messages to her
cellular phone. Flywheel offers indoor cycling workout classes at
studios in more than a dozen geographic areas. To sign up for a
Flywheel class, a customer must have a Flywheel user account.
Henricks' account was created on Flywheel's website on Dec. 2, 2014
at 6:19 p.m. Flywheel's account registration webpage can be
accessed either remotely (for example, at home) or by using a
tablet at a Flywheel studio. Either way, the sign-up process is
the same.
Before an account is created, the user is required to click a box
stating, "I agree with the Flywheel Sports Terms and Conditions of
Service and Privacy Policy." The text associated with "Terms and
Conditions of Service" is hyperlinked in blue lettering and, when
clicked, directs the user to the Terms and Conditions. Flywheel's
"Privacy Policy" is similarly hyperlinked.
Henricks has registered for 55 Flywheel classes, but has never been
a "direct customer" of Flywheel. Instead, she has always booked
her Flywheel classes through ClassPass, a third-party entity.
ClassPass users, however, are still required to create a Flywheel
account in order to take Flywheel classes.
In about November 2018, Henricks began to receive unsolicited spam
advertisements and promotional offers from Flywheel on her cellular
phone. She alleges that Flywheel sent these text messages from its
"SMS blasting platform." She asserts that she never gave her phone
number to Flywheel and never consented to receive text messages
from the company. Documentary evidence provided by the Defendant
shows that Flywheel obtained Henricks' phone number (and other
personal information about her) when her account was created in
December 2014.
Henricks claims that Flywheel's transmission of text messages to
her violated the TCPA. The Complaint was filed on Jan. 29, 2019,
on behalf of Henricks and all persons within the United States who
received any unsolicited text messages from Flywheel which text
message was not made for emergency purposes or with the recipient's
prior express consent within the four years prior to the filing of
this Complaint.
On May 30, 2019, Flywheel moved to compel arbitration and to stay
the action pending arbitration. Henricks opposes Flywheel's
motion.
Judge Gardephe holds that the record before the Court demonstrates
that Henricks created a Flywheel account in December 2014 and, in
doing so, agreed to Flywheel's Terms and Conditions of Service,
which include an arbitration agreement that encompasses her TCPA
claims. That Henricks does not recall creating the Flywheel
account -- and denies doing so -- does not create an issue of
fact.
For these reasons, Judge Gardephe granted Flywheel's motion to
compel arbitration. The action is stayed pending the outcome of
arbitration proceedings.
A full-text copy of the Court's March 18, 2020 Order is available
at https://is.gd/SlLKZ7 from Leagle.com.
Christina Henricks, individually and on behalf of all others
similarly situated, Plaintiff, represented by Joseph Hekmat --
jhekmat@hekmatlaw.com -- Hekmat Law Group, Thomas Edward Wheeler,
Law Offices of Todd M. Friedman & Todd Friedman --
tfriedman@attorneysforconsumers.com -- Law Offices of Todd M.
Friedman.
Flywheel Sports, Inc., Defendant, represented by David Jay --
jayd@gtlaw.com -- Greenberg Traurig, LLP.
GENERAL MOTORS: Court Dismisses First Amended Hall Suit
-------------------------------------------------------
In the case, ELAINE HALL, et al., Plaintiffs, v. GENERAL MOTORS,
LLC, Defendant, Case No. 19-cv-10186 (E.D. Mich.), Judge Matthew F.
Leitman of the U.S. District Court for the Eastern District of
Michigan, Southern Division, granted GM's motion to dismiss all of
Plaintiffs' claims in the First Amended Complaint.
In the putative class action, the Plaintiffs bring a variety of
statutory and common-law claims against Defendant GM arising out of
an alleged safety defect in the StabiliTrak system of their GM
vehicles. GM is one of the world's leading automakers. One of the
vehicles that it designs and manufactures is the Chevrolet Impala.
The Plaintiffs are consumers who purchased 2010 through 2016
Chevrolet Impala and 2014-2016 Chevrolet Impala Limited vehicles in
the United States. They purchased their vehicles on the used-car
market.
The Class Vehicles are equipped with a "StabiliTrak electronic
stability control system" that is designed to proactively help
drivers maintain control of their vehicles in situations where the
vehicle is beginning to lose directional stability. The Plaintiffs
assert that the StabiliTrak system contains one or more design
and/or manufacturing defects that can cause the vehicle to pull to
one side (particularly while turning), hesitate, jerk, brake/lock
wheels, lose power and/or stall. They refer to the defect as the
"StabiliTrak Defect." They contend that the StabiliTrak Defect "is
caused by a defective wheel speed sensor wiring harness which is
subject to unintended wear, stress and abrasion from normal use
that can cause various types of damage. The "damage," in turn,
"can cause the signals from the wheel speed sensor to become
erratic" and cause the "symptoms" described.
Finally, the Plaintiffs claim that GM "concealed" and "failed to
disclose" the StabiliTrak Defect to them and the public.
The Plaintiffs filed their First Amended Class Action Complaint,
the operative pleading in the action, on May 16, 2019. The named
Plaintiffs are as follows: (i) Elaine Hall, a California resident
who purchased a used 2016 Chevrolet Impala Limited from an
authorized GM dealer in Los Angeles, California in July 2017; (ii)
Herklee Carey, an Alabama resident who purchased a used 2014
Chevrolet Impala Limited from Nissan of Mobile in Mobile, Alabama
in January 2015; (iii) Brandon Clark, an Illinois resident who
purchased a used 2014 Chevrolet Impala from Tom Sparks Automotive
in DeKalb, Illinois in July 2016; (iv) Duranda Jones, an Illinois
resident who purchased a used 2013 Chevrolet Impala from an
authorized GM dealer in Pekin, Illinois in November 2017; (iv)
Rebecca Bittner, a Pennsylvania resident who purchased a used 2012
Chevrolet Impala from an authorized GM dealer in Cumberland,
Maryland in July 2015; and (v) James Fagre, a Missouri resident who
purchased a used 2012 Chevrolet Impala from Marshfield Chevrolet in
Marshfield, Missouri in March 2015.
The Plaintiffs bring claims against GM for fraud, violations of the
consumer protection laws of various states, unjust enrichment, and
breach of the Class Vehicles' implied warranties under state and
federal law.
GM moved to dismiss the First Amended Complaint pursuant to Federal
Rule of Civil Procedure 12(b)(6) on June 13, 2019. The Court held
a hearing on the motion on Jan. 30, 2020.
In Counts I-IV, VII-VIII, and XI of the First Amended Complaint,
the Plaintiffs bring a common-law fraud claim and claims based upon
the consumer protection laws of various states against GM. The
essence of each of these claims is that GM "concealed" and "failed
to disclose" the StabiliTrak Defect to the public. Thus, these
claims are in the nature of fraudulent omissions.
Judge Leitman finds that (i) the Plaintiffs' allegations about GM's
unspecified pre-sale testing and analysis are not sufficient to
support a plausible inference that GM had pre-sale knowledge of the
StabiliTrak Defect; (ii) the Plaintiffs have not presented these
complaints in a manner that can reasonably allow the Court to
determine whether they tend to establish GM's pre-sale knowledge of
the StabiliTrak Defect; (iii) the TSBs identified by the Plaintiffs
did not identify or mention any of the core features of the
StabiliTrak Defect as defined by the Plaintiffs, and thus those
TSB's do not support a plausible inference that GM knew about the
StabiliTrak Defect; and (iv) the differences between the knowledge
allegations that were sufficient in GM Air Conditioning and the
knowledge allegations the Plaintiffs make underscore why the
allegations in the case do not support a plausible inference that
GM had pre-sale knowledge of the StabiliTrak Defect.
In Count XII of the First Amended Complaint, the Plaintiffs, on
behalf of a nationwide class, or, in the alternative, on behalf of
various state sub-classes, allege that GM has been unjustly
enriched "through the sale and lease of the Class Vehicles." Judge
Leitman holds that the claim fails for two reasons. First, the
Plaintiffs' unjust enrichment claim is not cognizable because there
is an express contract that covers the same subject matter --
namely, the express limited warranty that GM provided at the time
the Class Vehicles were first purchased. Second, the Plaintiffs'
unjust enrichment claim also fails because they have not
sufficiently pleaded that they conferred a benefit on GM. For
these reasons, the Plaintiffs have failed to state a viable unjust
enrichment claim against GM.
Finally, in Counts V-VI and IX-X of the First Amended Complaint,
Plaintiffs Clark, Jones, and Fagre allege that GM breached the
implied warranties of the vehicles that they purchased. The
Plaintiffs bring their breach of implied warranty claims under the
federal Magnuson-Moss Warranty Act (the "MMWA"), and the laws of
Illinois and Missouri.
Judge Leitman is not persuaded that the durational limits in the
Plaintiffs' implied warranties are unconscionable. First, the
duration of the express limited warranties for the Plaintiffs'
vehicles was 3 years or 36,000 miles, whichever occurred first.
Thus, the Plaintiffs' implied warranties were limited to that same
time period. Second, the Plaintiffs have not pleaded that the
StabiliTrak Defect manifested in their vehicles or that they
suffered any injury before their implied warranties expired. That
further supports the dismissal of the Plaintiffs' breach of
warranty claims. Finally, the Plaintiffs have not sufficiently
explained how they may properly attack the durational limits in the
implied warranties as unconscionable where, as used car purchasers,
they did not receive the warranties from GM.
At this point, the Court would normally provide the Plaintiffs the
opportunity to file an Amended Complaint to remedy the pleading
deficiencies identified by GM and the Court. But while leave to
amend should be freely given when justice so requires, justice does
not require that the Plaintiffs be permitted to file a Second
Amended Complaint. A careful review of the history of the action
shows why.
Judge Leitman holds that the procedure allowed the Plaintiffs a
full opportunity to allege any and all facts in the First Amended
Complaint that supported their claims and that could address GM's
arguments for dismissal. The Court adopted the procedure because
it did not want to undertake an exhaustive analysis of the
Plaintiffs' claims until it had given Plaintiffs the opportunity to
cure the claimed defects. Nor did the Court want the parties to
spend time and resources on motion practice until the Plaintiffs
had the chance to review GM's arguments in support of GM's motion
to dismiss and to augment their claims with additional factual
allegations if necessary. The parties and the Court have now spent
significant time and resources analyzing the facts and claims in
the First Amended Complaint, and it would not be just to require
the parties and the Court to repeat this process. The Judge
therefore declines to grant the Plaintiffs leave to amend.
For all of the reasons stated, Judge Leitman granted GM's motion to
dismiss, and the First Amended Complaint is dismissed with
prejudice.
A full-text copy of the Court's March 18, 2020 Opinion & Order is
available at https://is.gd/Xij5Pj from Leagle.com.
Elaine Hall, Plaintiff, represented by Danielle L. Manning , Glancy
Prongay and Murray LLP, Dennis A. Lienhardt, The Miller Law Firm,
P.C., Marc L. Godino -- mgodino@glancylaw.com -- Glancy Prongay and
Murray LLP, Mark S. Greenstone -- mgreenstone@greenstonelaw.com --
Greenstone Law APC, Sharon S. Almonrode -- ssa@millerlawpc.com --
The Miller Law Firm, P.C., William Kalas, The Miller Law Firm, P.C.
& E. Powell Miller -- epm@millerlawpc.com -- The Miller Law Firm.
Herklee Carey, James Fagre, Rebecca Bittner, Brandon Clark &
Duranda Jones, Plaintiffs, represented by Danielle L. Manning --
dmanning@glancylaw.com -- Glancy Prongay and Murray LLP, Dennis A.
Lienhardt, The Miller Law Firm, P.C., Marc L. Godino, Glancy
Prongay and Murray LLP, Mark S. Greenstone, Greenstone Law APC & E.
Powell Miller, The Miller Law Firm.
General Motors, LLC, Defendant, represented by Eric C. Tew --
etew@dykema.com -- Dykema Gossett PLLC, Michael P. Cooney --
mcooney@dykema.com -- Dykema Gossett & Terri Steinhaus Reiskin --
treiskin@dykema.com -- Dykema Gossett PLLC.
H Z & J SERVICES: Mercedes Seeks Minimum and OT Pay for Drivers
---------------------------------------------------------------
FRANKLIN R. MERCEDES, and other similarly-situated individuals,
Plaintiff (s), v. H Z & J SERVICES LLC, and HELVER ZUNIGA, SR,
individually, Defendants, Case No. 6:20-cv-00565-PGB-DCI (M.D.
Fla., April 1, 2020) is an action brought by the Plaintiff to
recover money damages for unpaid minimum and overtime wages, and
retaliatory damages pursuant to the Fair Labor Standards Act.
The Plaintiff was hired as a local driver to deliver empty
construction debris containers and to pick up full debris
containers.
H Z & J SERVICES is a Florida-based company that operates a
sanitation or trash and debris collection business. [BN]
The Plaintiff is represented by:
Zandro E. Palma, Esq.
ZANDRO E. PALMA, P.A.
9100 S. Dadeland Blvd., Suite 1500
Miami, FL 33156
Telephone: (305) 446-1500
Facsimile: (305) 446-1502
HERITAGE-CRYSTAL CLEAN: Settlement Reached in Adelphia Class Suit
-----------------------------------------------------------------
Heritage-Crystal Clean, Inc. said in its Form 10-K report filed
with the U.S. Securities and Exchange Commission on March 3, 2020,
for the fiscal year ended December 28, 2019, that the company has
settled a putative class action lawsuit captioned as, Adelphia,
Inc. d/b/a/ Village Auto and Dan's One Stop Shop, LLC v.
Heritage-Crystal Clean, Inc. and Heritage-Crystal Clean, LLC, Case
No. 15-L-386
In December 2019, the Company settled its putative class action
lawsuit, Adelphia, Inc. d/b/a/ Village Auto and Dan's One Stop
Shop, LLC v. Heritage-Crystal Clean, Inc. and Heritage-Crystal
Clean, LLC, Case No. 15-L-386, filed in the Circuit Court for the
Sixteenth Judicial Circuit in Kane County, Illinois, alleging that
the Company charged fees in violation of both its contracts and
applicable state laws.
The case involved claims brought under the Illinois Consumer Fraud
and Deceptive Business Practices Act, 815 ILCS 505/1 et seq., as
well as claims for breach of contract and unjust enrichment.
The case was brought as a putative class action on behalf of all
customers of HCC who entered into a written contract and have paid
a fuel surcharge from 2005 to present.
Under the settlement, the Company agreed to fund up to $11.0
million less deductions and payments for administration expenses,
attorney's fees, and other expenses, for claims of class members.
Heritage-Crystal said, "We expect that the final amounts owed
pursuant to this settlement will be determined by the end of the
second fiscal quarter of 2020."
Heritage-Crystal Clean, Inc., through its subsidiary,
Heritage-Crystal Clean, LLC, provides parts cleaning, and hazardous
and non-hazardous containerized waste services to small and
mid-sized customers in the vehicle maintenance and manufacturing
services industries in North America. It operates in two segments,
Environmental Services and Oil Business. Heritage-Crystal Clean,
Inc. was incorporated in 2007 and is headquartered in Elgin,
Illinois.
HERSHA HOSPITALITY: Schaefer ADA Suit Removed to C.D. California
----------------------------------------------------------------
The class action lawsuit captioned as Barbara Schaefer,
individually and on behalf of all others similarly situated v.
Hersha Hospitality Management, L.P. and Does 1 through 10,
inclusive, Case No. 20STCV07499, was removed from the California
Superior Court, Los Angeles County, to the U.S. District Court for
the Central District of California (Los Angeles) on March 30,
2020.
The Central District of California Court Clerk assigned Case No.
2:20-cv-02980-JFW-AFM to the proceeding. The case is assigned to
the Hon. Judge John F. Walter.
The lawsuit demands $5 million in damages alleging violation of the
Americans with Disabilities Act.
Hersha Hospitality provides hotel management, investment, and
development services. The Company offers asset management,
operations, sales and marketing, centralized accounting and
reporting, project management, facility, utilities support, and
asset protection services.[BN]
The Plaintiff is represented by:
Laura Grace Van Note, Esq.
Michelle Trevino, Esq.
Scott Edward Cole, Esq.
SCOTT COLE AND ASSOCIATES APC
555 12th Street, Suite 1725
Oakland, CA 94607
Telephone: (510) 891-9800
Facsimile: (510) 891-7030
E-mail: lvannote@scalaw.com
scole@scalaw.com
The Defendants are represented by:
Amy B. Alderfer, Esq.
Brett Nicole Taylor, Esq.
COZEN O'CONNOR
1299 Ocean Avenue, Suite 900
Santa Monica, CA 90401
Telephone: (213) 892-7941
Facsimile: (213) 784-9067
E-mail: aalderfer@cozen.com
btaylor@cozen.com
HOOTERS III: Scott and Seales Sue Over Abrupt Termination
---------------------------------------------------------
ASTHON SCOTT and AMANDA SEALES, on behalf of themselves and on
behalf of all others similarly situated, Plaintiffs v. HOOTERS III,
Inc., Defendant, Case No. 8:20-cv-00882 (M.D. Fla., April 16, 2020)
is a class action complaint brought against Defendant for its
alleged violation of the Worker Adjustment and Retraining
Notification Act.
Plaintiffs and about 679 other employees were employed by
Defendants -- Scott since 2012 and Seales since 2006.
According to the complaint, Plaintiffs and other Class members
received written notice terminating their employment on March 25,
2020, without any cause on their part.
The complaint asserts that Defendant failed to:
-- provide Plaintiffs and the other Class members at least 60
days' advance notice of their termination;
-- provide as much written notice as was practicable under the
circumstance surrounding the COVID-19 pandemic; and
-- evaluate the impact of COVID-19 upon its 679 employees 60
days prior to the March 25, 2020 mass layoff.
Because Defendant failed to provide advance notice, Plaintiffs and
the other Class members experienced a devastating economic impact.
Thus, they are entitled to recover from Defendants their respective
compensation and benefits for 60 days under the WARN Act.
Hooters III, Inc. operates 25 Hooters restaurants. [BN]
The Plaintiffs are represented by:
Luis A. Cabassa, Esq.
Brandon J. Hill, Esq.
WENZEL FENTON CABASSA, P.A.
1110 North Florida Ave., Suite 300
Tampa, FL 33602
Tel (Main): 813-224-0431
Tel (Direct): 813-379-2565
Fax: 813-229-8712
Emails: lcabassa@wfclaw.com
bhill@wfclaw.com
- and –
Chad A. Justice, Esq.
JUSTICE FOR JUSTICE LLC
1205 N Franklin St., Suite 326
Tampa, FL 33602
Tel: 813-566-0550
Fax: 813-566-0770
Email: chad@getjusticeforjustice.com
HYUNDAI MOTOR: Michael Balks at Unsolicited Telemarketing Calls
---------------------------------------------------------------
ALAIN MICHAEL, individually and on behalf of all others similarly
situated, Plaintiff, vs. HYUNDAI MOTOR AMERICA, California
Corporation, Defendant, Case No. 2:20-cv-03044 (C.D. Cal., April 1,
2020) is an action brought by the Plaintiff against the Defendant
to secure redress for violations of the Telephone Consumer
Protection Act, which has resulted in the invasion of privacy,
harassment, aggravation, and disruption of the daily life of
thousands of individuals.
According to the complaint, the Defendant's prerecorded
telemarketing call constitutes telemarketing because they
encouraged the future purchase, sell, or investment in property,
goods, and/or services, i.e., the purchase of Defendant's
vehicles.
These calls were made without regard to whether or not Defendant
had first obtained express permission from the called party to make
such calls. In fact, Defendant did not have prior express consent
to call the cell phones of Plaintiff and the other members of the
putative Class when its calls were made.
Hyundai Motor American is a car manufacturer and wholly owned
subsidiary of Hyundai Motor Company. [BN]
The Plaintiff is represented by:
Ignacio J. Hiraldo, Esq.
IJH LAW
1200 Brickell Ave Suite 1950
Miami, FL 33131
Telephone: 786-496-4469
Email: ijhiraldo@ijhlaw.com
– and –
Michael Eisenband, Esq.
EISENBAND LAW, P.A.
515 E Las Olas Blvd. Suite 120
Fort Lauderdale, FL 33301
Telephone: 954-533-4092
Email: MEisenband@Eisenbandlaw.com
– and –
Manuel Hiraldo, Esq.
HIRALDO P.A.
401 E. Las Olas Blvd., Suite 1400
Fort Lauderdale, FL 33301
Telephone: 954-400-4713
Email: MHiraldo@Hiraldolaw.com
– and –
Marshall Rosenbach, Esq.
LAW OFFICES OF MARSHALL E. ROSENBACH
468 N. Camden Drive, Suite 200
Beverly Hills, CA 90210
Telephone: 310-860-4764
Email: marshall@marshallrosenbach.com
IBERIABANK CORP: Suits Challenge First Horizon Merger
------------------------------------------------------
IBERIABANK Corporation said in its Form 10-K report filed with the
U.S. Securities and Exchange Commission on March 2, 2020, for the
fiscal year ended December 31, 2019, that the company has been
named as a defendant in at least four putative stockholder class
action suits related to its merge with First Horizon.
On November 3, 2019, IBERIABANK's Board of Directors caused the
Company to enter into an agreement and plan of merger with First
Horizon. Pursuant to the terms of the Merger Agreement,
IBERIABANK's stockholders will receive 4.584 shares of First
Horizon common stock for each share of IBERIABANK common stock they
own.
Four purported holders of IBERIABANK Corporation (IBKC) common
stock have filed four putative stockholder class action complaints
against IBKC and the members of IBKC's board of directors.
The complaints are captioned as follows: Wang v. IBKC, et al., No.
20-0105-LAP (S.D.N.Y filed January 6, 2020); Parshall v. IBKC, et
al., No.20-00027-LPS (D. Del. filed January 8, 2020, includes First
Horizon as a Defendant); Hertz v. IBKC, et al., No. 20-00267-MKB-LB
(E.D.N.Y filed January 16, 2020); and Cooksey v. IBKC, et al., No.
20-00431-FB-RER (E.D.N.Y. filed January 26, 2020).
The complaints assert claims under Section 14(a) of the Exchange
Act and Rule 14a-9 thereunder against IBKC and the members of
IBKC's board of directors and under Section 20(a) of the Exchange
Act against the members of IBKC's board of directors for allegedly
disseminating a false and misleading registration statement on Form
S-4, filed by First Horizon with the SEC on December 31, 2019.
Among other remedies, the plaintiffs seeks to enjoin the Merger and
any shareholder vote on the Merger and rescind the Merger or
recover damages in the event the Merger is completed.
The courts have not acted on the complaints, and no relief has been
granted in any of the lawsuits as of this time.
The defendants believe the claims and allegations are without
merit.
IBERIABANK Corporation offers commercial and retail banking
products and services to customers in locations in six states
through IBERIABANK. The company is based in Lafayette, Louisiana.
INTERNATIONAL FLAVORS: Faces Securities Class Suits in Tel Aviv
---------------------------------------------------------------
International Flavors & Fragrances, Inc. said in its Form 10-K
report filed with the U.S. Securities and Exchange Commission on
March 3, 2020, for the fiscal year ended December 31, 2019, that
the company has been named as a defendant in putative securities
class action suits in Tel Aviv District Court, Israel.
Two motions to approve securities class actions were filed in the
Tel Aviv District Court, Israel in August 2019, similarly alleging,
among other things, false and misleading statements largely in
connection with IFF's acquisition of Frutarom and the
above-mentioned improper payments.
Both assert claims under the U.S. federal securities laws against
IFF, its Chairman and CEO, and its former CFO.
One also asserts claims under the Israeli Securities Act-1968
against IFF, as well as against Frutarom and certain former
Frutarom officers and directors, and asserts claims under the
Israeli Companies Act-1999 against certain former Frutarom officers
and directors.
New York-based International Flavors & Fragrances, Inc., together
with its subsidiaries, engages in the creation and manufacture of
flavor and fragrance products in the United States and
internationally.
JEI TRUCKING: Williams FLSA Suit Moved From Arkansas to Oklahoma
----------------------------------------------------------------
The class action lawsuit captioned as JUSTIN WILLIAMS, Individually
and on Behalf of All Others Similarly Situated v. JEI TRUCKING,
LLC, STEVEN NASON, and STARR OILFIELD SERVICES, LLC, Case No.
4:19-cv-00606 (Filed Aug. 29, 2019), was transferred from the U.S.
District Court for the Eastern District of Arkansas to U.S.
District Court for the Northern District of Oklahoma (Tulsa) on
March 31, 2020.
The Northern District of Oklahoma Court Clerk assigned Case No.
4:20-cv-00137-TCK-JFJ to the proceeding. The case is assigned to
the Hon. Judge Terence Kern.
The Plaintiff brings this action under the Fair Labor Standards Act
for declaratory judgment, monetary damages, liquidated damages,
prejudgment interest, and costs, including reasonable attorneys'
fees, as a result of the Defendants' failure to pay the Plaintiff
and all others similarly situated overtime compensation for all
hours they worked in excess of 40 per workweek.
Jei Trucking is a licensed and bonded freight shipping and trucking
company running freight hauling business from Paterson, New Jersey.
Starr Oilfield is a Tulsa based trucking company that specializes
in the transportation of frac sand.[BN]
The Plaintiff is represented by:
Joshua Jon Sanford, Esq.
SANFORD LAW FIRM PLLC
650 S. Shackleford, Ste. 411
Little Rock, AR 72211
Telephone: (501) 221-0088
Facsimile: (888) 787-2040
E-mail: josh@sanfordlawfirm.com
- and -
Stephen Rauls, Esq.
SANFORD LAW FIRM
One Financial Center
650 South Shackleford, Suite 411
Little Rock, AR 72211
Telephone: (501) 221-0088
Facsimile: (888) 787-2040
The Defendants are represented by:
Richard C. Downing, Esq.
JAMES HOUSE DOWNING & LUEKEN, P.A.
Post Office Box 3585
Little Rock, AR 72203-3585
Telephone: (501) 372-6555
Facsimile: (501) 372-6333
JUUL LABS: Gabbard Consumer Class Suit Removed to E.D. Kentucky
---------------------------------------------------------------
The class action lawsuit captioned as CONSTANCE GRACE GABBARD, on
behalf of herself and all others similarly situated v. JUUL LABS,
INC. and ALTRIA GROUP, INC., Case No. 20-CI-00710 (Filed Feb. 21,
2020), was removed from the Kentucky Circuit Court, Fayette County,
to the U.S. District Court for the Eastern District of Kentucky on
March 17, 2020.
The Eastern District of Kentucky Court Clerk assigned Case No.
3:20-cv-02175-WHO to the proceeding.
The Plaintiff contends that as a result of using Juul e-cigarette,
she is addicted to nicotine, and that such addiction "caused a
permanent brain injury to her developing brain" and respiratory
problems leading to hospitalization. The Plaintiff asserts claims
against Defendants for negligence, breach of implied warranty, and
violation of Kentucky Consumer Protection, California Consumer
Legal Remedies Act, California False Advertising Law, and
California Unfair Competition law.
Juul is an American electronic cigarette company, which spun off
from Pax Labs in 2017. Juul makes the Juul e-cigarette, which
packages nicotine salts from leaf tobacco into one-time use
cartridges.
Altria Group is an American corporation and one of the world's
largest producers and marketers of tobacco, cigarettes and related
products.[BN]
Defendant JUUL Labs, Inc., is represented by:
F. Maximilian Czernin, Esq.
SQUIRE PATTON BOGGS (US) LLP
201 E. Fourth Street, Suite 1900
Cincinnati, OH 45202
Telephone: (513) 361-1206
E-mail: max.czernin@squirepb.com
Defendant Altria Group, Inc., is represented by:
Kirk Ogrosky, Esq.
ARNOLD & PORTER KAYE SCHOLER LLP
601 Massachusetts Ave., NW
Washington, DC 20001-3743
Telephone: (202) 942-5330
E-mail: Kirk.Ogrosky@arnoldporter.com
KENNER, LA: La. App. Affirms Prelim Injunction Ruling in Drumm Suit
-------------------------------------------------------------------
In the case, BRIAN DRUMM AND THE CLASS OF SIMILARLY SITUATED
PERSONS, KENNER FIREFIGHTERS ASSOCIATION LOCAL 1427 IAFF, v. THE
CITY OF KENNER, Case No. 19-CA-342 (La. App.), Judge Robert A.
Chaisson of the Court of Appeal of Louisiana for the Fifth Circuit
affirmed the judgment of the district court granting a preliminary
injunction prohibiting Kenner from forcing firefighters to work
"out of class" on temporary or substitute appointments under threat
of disciplinary or other employment action.
On May 9, 2019, Drumm, on his own behalf and on behalf of the class
of all similarly situated employees of the Fire Department of the
City of Kenner, and the Kenner Fire Fighters Association Local 1427
IAFF, an unincorporated labor organization, filed a petition for
preliminary injunction, permanent injunction, and declaratory
relief. In the petition, the Plaintiffs alleged that Kenner has
ordered Mr. Drumm and other employees of the fire department to
temporarily work "out of class" against their wills and under
threat of disciplinary action. The Plaintiffs alleged further that
Kenner is forcing lower ranking employees to temporarily work "out
of class" instead of calling available employees who hold the
higher positions on an overtime basis, or creating new permanent
higher ranking positions, in an effort to reduce payroll costs to
Kenner.
The petition details specific instances in April of 2019 where Mr.
Drumm, who is currently an operator, submitted a written request
stating that he did not want to work out of class through his
Captain, District Chief, and Assistant Chief to the interim Kenner
Fire Chief. The request was denied by the interim Fire Chief via
email the next day and Mr. Drumm was placed on the schedule to work
out of class. Mr. Drumm filed a Request for Investigation/Hearing
with the Kenner Municipal Fire and Police Civil Service Board;
however, the board was forced to reschedule its meeting for some
time after Mr. Drumm was scheduled to again work out of class, thus
prompting the filing of the petition.
The Plaintiffs requested that the district court declare they are
entitled to accept or decline appointments to work out of class on
a temporary, substitute, or emergency basis without threat of
discipline or other employment action and that it is unlawful for
Kenner to force them to work out of class on a temporary,
substitute, or emergency basis under threat of disciplinary or
other employment action.
A hearing on the petition was held on May 28, 2019, at which time
the district court heard testimony from Mr. Drumm, another fire
department employee and president of the firefighters' association,
Mr. Michael Giarrusso, and interim Fire Chief Terrence Morris. The
court also received into evidence various exhibits including
emails, letters, work schedules and requests. On June 12, 2019,
the trial court issued a judgment granting the preliminary
injunction and ordered that Kenner is preliminarily enjoined from
forcing Petitioners to accept temporary or substitute appointments
'out of class' under threat of discipline or other employment
action.
On appeal, Kenner raises three assignments of error: 1) the trial
court's granting of the preliminary injunction is in conflict with
the statutory authority governing temporary appointments; 2) the
trial court incorrectly granted the preliminary injunction, despite
Plaintiffs' failure to show irreparable harm; and 3) the trial
court's preliminary injunction is overly broad because the
Plaintiffs have not been properly certified as a class.
First, Judge Chaisson holds that Kenner, by its own admission,
cites no case law or other legal authority in support of its
interpretation of the statute governing temporary appointments.
Statutory interpretation begins with the language of the statute
itself -- temporary appointments may be made to positions in
classified service without the appointees acquiring any permanent
status therein. Thus, when read in the context of the Municipal
Fire and Police Civil Service Law as a whole, "appointment" as used
in La. R.S. 33:2496 means that an "appointment" is in the nature of
an offer and acceptance of employment as that term is used in La.
R.S. 33:2494.
The Judge next looks at whether the interpretation proposed by
Kenner may lead to absurd consequences. Kenner argues that the
statute grants the appointing authority the substantive right to
appoint persons against their will and that requiring competent and
capable personnel to temporarily fulfill a position at the need of
the department is not an absurd consequence.
Recognizing that the Plaintiffs' employment with Kenner is a
voluntary, contractual agreement, the Judge concludes that the
"appointment" referenced in La. R.S. 33:2496 is in the nature of an
offer and acceptance of employment. Forcing an employee to work
out of class against his will under threat of discipline or other
employment action is an unlawful act, and therefore the Plaintiffs
were not required to show irreparable harm. Accordingly, the Judge
finds Kenner's argument that the district court legally erred in
granting the preliminary injunction is without merit.
In its final assignment of error, Kenner argues that the trial
court erred in granting the preliminary injunction prior to class
certification. Again, it cites no legal authority in support of
its position that a class action certification is required prior to
granting injunctive relief. Upon review, the Judge does not find
the language of the preliminary injunction to be overly broad.
Kenner's unlawful actions equally affect Mr. Drumm and all members
of the proposed class who are also forced to work out of class
against their will, and the trial court correctly exercised its
authority to grant preliminary injunctive relief prior to class
certification. The Judge notes that the language of the injunction
does not forbid the appointing authority from making any temporary
appointments, only those against the will of the appointees under
threat of discipline or other employment action. Those employees
who wish to work out of class upon being offered the opportunity
are free to do so.
Having concluded that the district court did not abuse its
discretion in granting a preliminary injunction prohibiting Kenner
from forcing firefighters to work "out of class" on temporary or
substitute appointments under threat of disciplinary or other
employment action, Judge Chaisson therefore affirmed the judgment
of the district court.
A full-text copy of the Court's March 4, 2020 Order is available at
https://is.gd/iOg9Iu from Leagle.com.
Laura C. Rodrigue -- lcr@rodriguearcuri.com -- Blake J. Arcuri --
bja@rodriguearcuri.com -- COUNSEL FOR PLAINTIFF/APPELLEE, BRIAN
DRUMM AND THE CLASS OF SIMILARLY SITUATED PERSONS, KENNER
FIREFIGHTERS ASSOCIATION LOCAL 1427 IAFF.
Guice A. Giambrone, III -- ggiambrone@bluewilliams.com -- Craig R.
Watson -- cwatson@gmclaw.com -- Elicia D. Ford, COUNSEL FOR
DEFENDANT/APPELLANT, THE CITY OF KENNER.
KILOO A/S: McDonald Suit Seeks to Certify Classes & Subclasses
--------------------------------------------------------------
In the class action lawsuit styled as MICHAEL MCDONALD, et al., v.
KILOO A/S, et al., Case No. 3:17-cv-04344-JD (L) (N.D. Cal.), the
Plaintiffs will move the Court on May 28, 2020 for an order on:
1. certifying privacy claims for a class action jury trial;
2. certifying these proposed classes and subclasses;
Rule (b)(2) Multistate Class:
"all parents and/or legal guardians of persons residing in
the States of Alabama, Alaska, Arizona, Arkansas,
California, Colorado, Connecticut, Delaware, Georgia,
Hawaii, Idaho, Illinois, Iowa, Kansas, Kentucky,
Louisiana, Maine, Maryland, Minnesota, Missouri, Nevada,
New Hampshire, New Jersey, North Carolina, Ohio, Oklahoma,
Oregon, Pennsylvania, South Dakota, Texas, Utah, Vermont,
Washington, and West Virginia (Intrusion States) who were
younger than the age of 18 when they played Subway Surfers
between May 24, 2012 and the present";
Rule (b)(2) New York Class:
"all parents and/or legal guardians of persons residing in
New York State who were younger than the age of 18 when
they played Subway Surfers between May 24, 2012 and the
present.
Rule (b)(3) Multistate Subclass:
"all parents and/or legal guardians of persons residing in
the Intrusion States who were younger than the age of 18
when they played Subway Surfers between May 24, 2012 and
June 21, 2017, from whom the Defendants collected and/or
used Personal Data for purposes of behavioral
advertising"; and
Rule (b)(3) New York Subclass:
"all parents and/or legal guardians of persons residing in
New York State who were younger than the age of 18 when
they played Subway Surfers between May 24, 2012 and June
21, 2017, from whom the Defendants collected and/or used
Personal Data for purposes of behavioral advertising";
3. appointing Michael McDonald, Tamarant Draut, and Dominique
Murillo as class representatives; and
4. appointing Leiff Cabrasser Heimann & Bernstein and Carney
Bates & Pulliam as class counsel.
The Plaintiff contends that the Defendant has uniformly intruded
upon parents' and children's privacy by exfiltrating personally
identifying information from mobile devices while the children
played Defendant's gaming app, without any effort to obtain
parents' consent and without meaningful restrictions on the data's
use.
Kiloo is a Danish games development company.[CC]
The Plaintiffs are represented by:
Michael W. Sobol, Esq.
Michael K. Sheen, Esq.
Facundo Bouzat, Esq.
Nicholas Diamand, Esq.
Douglas I. Cuthbertson, Esq.
Sean A. Petterson, Esq.
LIEFF CABRASER HEIMANN & BERNSTEIN, LLP
275 Battery Street, 29th Floor
San Francisco, CA 94111
Telephone: 415 956 1000
Facsimile: 415 956 1008
E-mail: msobol@lchb.com
msheen@lchb.com
fbouzat@lchb.com
ndiamand@lchb.com
dcuthbertson@lchb.com
spetterson@lchb.com
- and -
Hank Bates, Esq.
Allen Carney, Esq.
David Slade, Esq.
CARNEY BATES & PULLIAM, PLLC
519 West 7th St.
Little Rock, AR 72201
Telephone: 501.312.8500
Facsimile: 501.312.8505
E-mail: hbates@cbplaw.com
acarney@cbplaw.com
dslade@cbplaw.com
LIGHTHOUSE INSURANCE: Bond et al Sue over Unsolicited Phone Calls
-----------------------------------------------------------------
JOSEPH BOND and NICOLE THOMPSON, individually and on behalf of all
others similarly situated, Plaintiff v. LIGHTHOUSE INSURANCE GROUP,
LLC, Defendant, Case No. 1:20-cv-00677 (N.D. Ohio, March 30, 2020)
is a class action complaint brought against Defendant for its
alleged violation of the Telephone Consumer Protection Act.
According to the complaint, Defendant conducted a wide-scale
telemarketing campaign by repeatedly making unsolicited phone calls
to consumers' telephones and cellular phones without any prior
express consent to make such calls and by utilizing an automatic
telephone dialing system and/or an artificial or pre-recorded
voice.
Plaintiffs received numerous unsolicited autodialed calls from
Defendant's number 252-388-8025 in their personal cellular
telephones.
The complaint asserts that because of Defendant's unlawful conduct,
Plaintiffs and the members of the class suffered actual damages in
the form of monies paid to receive the unsolicited telephone calls
on their cellular telephones.
Lighthouse Insurance Group, LLC is a licensed insurance agency that
provides health insurance, Medicare, and supplemental insurance
policies to tens of thousands of customers across several states.
[BN]
The Plaintiffs are represented by:
William McAllum Harrelson II, Esq.
HARRELSON & HARRELSON LLP
9 West Water Street
Troy, OH 45373
Tel: (937)552-9400
Fax: (937)552-9361
Email: Will@HarrelsonLLP.com
- and –
Patrick H. Peluso, Esq.
Stephen A. Klein, Esq.
WOODROW & PELUSO, LLC
3900 East Mexico Ave., Suite 300
Denver, CO 80210
Tel: (720)213-0675
Fax: (303)927-0809
Emails: ppeluso@woodrowpeluso.com
sklein@woodrowpeluso.com
LYFT INC: Keiner Named Lead Plaintiff in Securities Suit
--------------------------------------------------------
In the case, In re LYFT SECURITIES LITIGATION, Case No.
19-cv-02690-HSG (N.D. Cal.), Judge Haywood S. Gilliam, Jr. of the
U.S. District Court for the Northern District of California granted
Rick Keiner's motion for appointment as the Lead Plaintiff and
approval of Block & Leviton as the lead counsel.
On May 17, 2019, Plaintiff Matias Malig, as Trustee for the Malig
Family Trust, filed the first of two securities class action
lawsuits bringing claims individually and on behalf of others who
acquired common stock of Lyft, traceable to Lyft's Initial Public
Offering ("IPO") on March 28, 2019. The complaint asserts a claim
under Section 11 of the Securities Act of 1933. The complaint
names as the Defendants the Company, 11 Individual Defendants who
served in executive positions for the Company or on the Company's
Board, and 29 underwriters who were instrumental in soliciting and
making the stock offered in the IPO available to the investing
public.
Lyft is a rideshare company that sought to sought to revolutionize
transportation by launching its peer-to-peer marketplace for
on-demand ridesharing. On March 28, 2019, Lyft offered 32.5
million shares to the public through an IPO at a price of $72 per
share, generating total proceeds of $2.34 billion. In the
Registration Statement and Prospectus filed in connection with the
IPO, Lyft estimated that its ridesharing marketplace is available
to over 95% of the U.S. population, as well as in select cities in
Canada. The Company also represented that its U.S. ridesharing
market share was 39% in December 2018, up from 22% in December
2016.
The Defendants allegedly made materially false, misleading, or
incomplete statements in these filings because they failed to
disclose, among other things, that: (1) Lyft's claimed ridesharing
position was overstated; (2) more than 1,000 of the bicycles in
Lyft's rideshare program suffered from safety issues that would
lead to their recall; (3) Lyft's drivers were becoming
disincentivized from driving for Lyft; and (4) Lyft failed to warn
investors that a labor disruption could affect its operations.
When the purported truths were revealed, Lyft's stock price fell
and the putative class members -- who purchased stock traceable to
the IPO -- suffered financial losses. For example, after the
market closed on April 11, 2019, Uber, Lyft's competitor, filed
with the SEC its Form S-1, which claimed a market share of greater
than 65% in the United States and Canada, a claim that further
undermined Lyft's purported claim of 39% market share. Several
days later, the New York Times reported that Citi Bike was taking
1,000 bicycles out of service in New York, and more in Washington,
D.C. and San Francisco, in the wake of dozens of reported injuries
and safety concerns. In response to these revelations, the
Company's shares fell sharply to under $57.
Four competing motions for appointment as the Lead Plaintiff,
approval of the lead counsel, and consolidations of securities
class action cases were filed: (1) a motion by Keiner seeking
appointment as the Lead Plaintiff and approval of Block & Leviton
as the lead counsel; (2) a motion filed by Harold Tholen, Danilo
Nunez, and Rakesh Khanna ("Lyft Investor Group") seeking
appointment as the Lead Plaintiffs and approval of Levi & Korsinky,
LLP as the lead counsel; (3) a motion by Deep Dinesh Patel seeking
appointment as the Lead Plaintiff and approval of The Rosen Law
Firm, P.A. as the lead counsel; and (4) a motion by Terry S.
Bradford seeking appointment as the Lead Plaintiff and approval of
Pomerantz LLP as the lead counsel.
Subsequently, Patel withdrew his motion. On July 30, 2019, Keiner
and the Lyft Investor Group filed briefs in opposition to the
competing motions for appointment of the Llead Plaintiff. On Aug.
6, 2019, Keiner filed a brief in further support of his initial
motion. On the same day, the Lyft Investor Group also filed a
brief in further support of their initial motion.
The 'most capable' plaintiff -- and hence the lead plaintiff -- is
the one who has the greatest financial stake in the outcome of the
case, so long as he meets the requirements of Rule 23. The Ninth
Circuit interprets the PSLRA as establishing a simple three-step
process for identifying the lead plaintiff pursuant to these
criteria: Notice Requirement, Largest Financial Stake in the
Litigation, and Typicality and Adequacy.
Judge Gilliam finds that a notice was published in Globe Newswire
on the same day that the complaint was filed. It complied with the
PSLRA's 20-day filing deadline, and Globe Newswire is a "widely
circulated international business-oriented news reporting service,
as required. The notice specifically announced the filing of the
action against Lyft, described the asserted claim under the
Securities Act, described the class as encompassing those who
"purchased Lyft shares pursuant and/or traceable to Lyft's
registration statement and prospectus," and notified putative class
members that any motion to be appointed lead plaintiff must be
filed no later than July 16, 2019. Accordingly, Step One's
requirements are met.
Applying the economic loss method, Judge Gilliam finds that Keiner
is presumptively the most adequate Plaintiff. Applying the
Lax-Olsten factors for the three movants results in the following
calculations: Movant (1) Shares (2) Net Shares (3) Net Funds (4)
Approximate Purchased Purchased Expended Loss: Keiner - 121,352
200, $331,6074 ($223,049); Lyft Investment - 9,244, 9,244, $687,168
($163,796); Group Harold Tholen - 5,000, 5,000, $360,000 ($91,050);
Rakesh Khanna - 2,800 2,800 $201,600 ($40,673); Danilo Nunez -
1,744, 1,744, $125,568 ($31,758); and Bradford - 533, 533, $37,005
($8,335). Also, Keiner's approximate loss is nearly $60,000 more
than Lyft Investor Group and over double that of the largest
shareholder in Lyft Investment Group, Harold Tholen. The Judge
accordingly finds that Keiner has the largest financial interest.
Keiner represents that he is unaware of any conflicts between his
claims and those asserted on behalf of the putative class, or of
any unique defenses, that would render him atypical or unable to
adequately protect the interest of the class. Judge Gilliam agrees
that Keiner's injuries, stemming from the purchase of Lyft shares
at artificially high prices after the Company's alleged
misstatements in the offering documents, are typical of the Section
11 claims alleged in the complaints. Further, he does not find
Keiner susceptible to unique defenses that would make him
inadequate to represent the class in the action.
Finally, Keiner has moved for approval of its selection of Block &
Leviton LLP as the lead counsel. Judge Gilliam defers to Keiner's
choice of the lead counsel because his choice is not so irrational,
or so tainted by self-dealing or conflict of interest, as to cast
genuine and serious doubt on his willingness or ability to perform
the functions of Lead Plaintiff. He thus approves Keiner's
selection of counsel.
For the foregoing reasons, Judge Gilliam granted Keiner's motion.
He denied all pending unwithdrawn motions. Keiner is appointed as
the Lead Plaintiffs for the putative class. Block & Leviton LLP is
further approved as the lead counsel for the putative class.
The Judge set the initial case management conference in the case
for March 31, 2020 at 2:00 p.m. He also directed the parties to
meet and confer and submit a joint case management statement by
March 24, 2020.
A full-text copy of the Court's March 4, 2020 Order is available at
https://is.gd/IqZgDq from Leagle.com.
Matias Malig, as Trustee for the Malig Family Trust, Plaintiff,
represented by Jacob Allen Walker -- jake@blockesq.com -- Block &
Leviton LLP.
Lyft, Inc., Defendant, represented by Andrew Brian Clubok --
andrew.clubok@lw.com -- Latham & Watkins LLP, pro hac vice,
Colleen
Carlton Smith -- colleen.smith@lw.com -- Latham and Watkins LLP,
Elizabeth L. Deeley -- elizabeth.deeley@lw.com -- Latham & Watkins
LLP &Matthew Rawlinson -- matt.rawlinson@lw.com -- Latham & Watkins
LLP.
Logan Green, John Zimmer, Brian Roberts, Prashant (Sean) Aggarwal,
Jonathan Christodoro, Ben Horowitz, Valerie Jarrett, David Lawee,
Ann Miura-Ko, Mary Agnes (Maggie) Wilderotter & Hiroshi Mikitani,
Defendants, represented by Andrew Brian Clubok , Latham & Watkins
LLP, Colleen Carlton Smith , Latham and Watkins LLP, Elizabeth L.
Deeley , Latham & Watkins LLP, Matthew Rawlinson , Latham & Watkins
LLP & Susan E. Engel , Latham & Watkins LLP.
J.P. Morgan Securities LLC, Credit Suisse Securities (USA) LLC,
Jefferies LLC, UBS Securities LLC, Stifel, Nicolaus & Company,
Incorporated, RBC Capital Markets, LLC, KeyBanc Capital Markets
Inc., Cowen and Company, LLC, Raymond James & Associates, Inc.,
Canaccord Genuity LLC, Evercore Group L.L.C., Piper Jaffray & Co.,
JMP Securities LLC, Wells Fargo Securities, LLC, KKR Capital
Markets, LLC, Academy Securities, Inc., Blaylock Van, LLC, Penserra
Securities LLC, Siebert Cisneros Shank & Co., L.L.C., The Williams
Capital Group, L.P., Castleoak Securities, L.P., C.L. King &
Associates, Inc., Drexel Hamilton, LLC, Great Pacific Securities,
Loop Capital Markets, LLC, Mischler Financial Group, Inc., Samuel A
Ramirez & Company, Inc., R. Seelaus & Co., LLC & Tigress Financial
Partners LLC, Defendants, represented by Charlene Sachi Shimada ,
Morgan, Lewis & Bockius LLP, Frank Burke Kennamer , Morgan, Lewis &
Bockius LLP & Kevin M. Papay , Morgan, Lewis & Bockius LLP.
Rick Keiner, Movant, represented by Jacob Allen Walker --
jake@blockesq.com -- Block & Leviton LLP & Whitney E. Street ,
Block & Leviton LLP.
Harold Tholen, Danilo Nunez & Rakesh Khanna, Movants, represented
by Adam Christopher McCall, Levi & Korsinsky, LLP.
Deep Dinesh Patel, Movant, represented by Laurence Matthew Rosen --
lrosen@rosenlegal.com -- The Rosen Law Firm, P.A. & Stephen Michael
Shepardson -- sshepardson@ongaropc.com -- Rosen Law Firm, P.A., pro
hac vice.
Terry S. Bradford, Movant, represented by Jennifer Pafiti --
jpafiti@pomlaw.com -- Pomerantz LLP.
MDL 2184: $13MM Google Electronic Comm. Suit Deal Gets Final Ct. OK
-------------------------------------------------------------------
Judge Charles R. Breyer of the U.S. District Court for the Northern
District of California granted final approval of the class action
settlement, granted attorneys' fees, and entered final judgment in
IN RE GOOGLE LLC STREET VIEW ELECTRONIC COMMUNICATIONS LITIGATION,
Case No. 10-md-02184-CRB (N.D. Cal.).
The case rises under the Electronic Communications Privacy Act of
1986 ("ECPA"), and the Plaintiffs allege that between 2007 and
2010, Google used its Street View vehicles to intentionally
intercept and store electronic communications transmitted by class
members over unencrypted wireless internet connections. After
almost a decade of litigation, the parties reached a settlement.
The settlement provides for injunctive relief and a $13 million
Settlement Fund, which (after deducting attorneys' fees and
expenses, service awards for the named Plaintiffs, and notice and
settlement expenses) the parties have agreed will be used to fund
Court-approved cy pres awards to organizations that address
consumer privacy issues. The Court preliminarily approved the
settlement in October 2019.
The Class Counsel now moves for final approval of the settlement.
Judge Breyer held a motion hearing on Feb. 28, 2020. He has
considered the record, the Settlement Agreement, and the briefing
on the motion, including the objections and comments it received,
and the arguments at the hearing.
Judge Breyer finds and concludes that the Class Representatives,
who have alleged that Google intercepted the private communications
transmitted in their payload data, have standing under Article III
of the United States Constitution. The invasions of privacy
involved here are concrete and particularized injuries-in-fact to
rights defined and protected by statute, and they fall well within
the Courts' traditional sphere of authority. The alleged injuries
are fairly traceable to the challenged conduct of the Defendant and
are redressable by the Court.
The Plaintiffs seek to certify a single nationwide class under
Federal Rule of Civil Procedure 23(a) and Rule 23(b)(3). Judge
Breyer finds that the Plaintiffs have satisfied Rule 23(a)(4).
Because the Plaintiffs' proposed class meets the requirements of
Rule 23(a) and Rule 23(b)(3), the Judge certified the classes for
settlement purposes under Rule 23(b)(3).
Judge Breyer confirmed the Court's appointment of Spector Roseman &
Kodroff, P.C. and Cohen Milstein Sellers & Toll PLLC as the Co-Lead
Class Counsel for the class, and of Lieff Cabraser Heimann &
Bernstein LLP as the Liaison Counsel for Class under Rule 23(g).
The Plaintiffs move for attorneys' fees, litigation expenses, and
service awards. They seek out of the Settlement Fund (A)
attorneys' fees amounting to 25% of the $13 million Settlement Fund
($3.25 million), (B) $750,000 in litigation expenses, and (C)
Service Awards totaling $91,500 for 21 Class Representatives.
Judge Breyer has carefully considered the filings in connection
with the motion, as well as the record in the matter, and he
granted the motion, as modified.
Judge Breyer calculates attorneys' fees based on a percentage of
the net Settlement Fund. That represents the Settlement Fund of
$13 million, minus expenses of $750,000, minus service awards of
$91,500 -- a net of $12,158,500 -- to which the Class Counsel is
entitled to 25%, or $3,039,625. The Judge therefore granted Fees
to the Class Counsel in the amount of $3,039,625. He also granted
the Plaintiffs' motion for litigation expenses in the amount of
$750,000.
Judge Breyer directed the Parties to consummate the Settlement
according to its terms. Pursuant to the Settlement, Google will
destroy, if it has not already done so, all Acquired Payload Data,
including the disks containing such data, within 45 days of the
Order, subject to any preservation obligations Google may have with
respect to any Excluded Class Member. Google will report via
counsel to Class Counsel upon the expiration of the 45 days whether
it has destroyed the Acquired Payload Data. If Google does not
destroy the Acquired Payload Data within the 45 days because of
ongoing preservation obligations, it will report this to the Class
Counsel. When the Acquired Payload Data are destroyed, Google will
report via counsel the fact of destruction to the Class Counsel.
Pursuant to the Settlement, Google will not collect and store for
use in any product or service Payload Data via Street View
Vehicles, except with notice and consent. Google will comply with
all aspects of the Privacy Program described in Paragraph 16 of
Section I of the AVC and with the prohibitive and affirmative
conduct described in Paragraphs 1 through 5 of the AVC. Through
the counsel, Google will confirm to the Class Counsel, in writing
and on an annual basis, that it remains in compliance.
Pursuant to the Settlement, Google will host and maintain
educational webpages that instruct users on the configuration of
wireless security modes and the value of encrypting a wireless
network, including a how-to video demonstrating how users can
encrypt their networks and instructions on how to remove a wireless
network from inclusion in Google's location services.
Google's Injunctive Relief obligations will terminate five years
after the date of Final Approval of the Settlement.
Pursuant to the Settlement, the Class Counsel will direct equal
distributions from the Escrow Account to the cy pres recipients
identified herein. The Judge approved and ordered such
distributions. The Escrow Agent will arrange such distributions
according to the Class Counsel's instructions.
The Parties and the Class Members are bound by the terms and
conditions of the Settlement. As of the date of Final Approval of
the Settlement, Releasors will be deemed to have fully, finally,
and forever released and discharged Releasees from the Released
Claims, as those terms are defined in the Settlement Agreement.
The full terms of the release are set forth in Paragraphs 46
through 48 of the Agreement. The Court expressly adopts and
incorporates by reference Paragraphs 46 through 48 of the
Agreement.
The parties are to bear their own costs, except as awarded by this
Court in the Final Order.
The benefits are the only consideration Google will be obligated to
give to the Class Members, with the exception of the service awards
to be paid to the Class Representatives as directed by the Court.
By operation of the Order, the Action is dismissed with prejudice.
Under Rule 54(b) of the Federal Rules of Civil Procedure, no just
reason exists for delay in entering final judgment. Judge Breyer
accordingly directed the Clerk to enter final judgment pursuant to
Rule 58 of the Federal Rules of Civil Procedure.
A full-text copy of the Court's March 18, 2020 Order is available
at https://is.gd/Bg3gNq from Leagle.com.
Benjamin Joffe, Plaintiff, represented by Cadio R. Zirpoli --
cadio@saveri.com -- Saveri & Saveri, Inc., Daniel A. Small --
dsmall@cohenmilstein.com -- Cohen Milstein Sellers & Toll PLLC,
Douglas A. Millen, Freed Kanner London & Millen LLC, pro hac vice,
Elizabeth Joan Cabraser, Lieff Cabraser Heimann & Bernstein, LLP,
Michael W. Sobol, Lieff Cabraser Heimann & Bernstein, LLP, Robert
White Cobbs -- rcobbs@cohenmilstein.com -- Cohen Milstein Sellers
And Toll & Kathryn Elaine Barnett -- kbarnett@forthepeople.com --
Lieff, Cabraser, Heimann and Bernstein LLP.
Lilla Marigza, Plaintiff, represented by Elizabeth Joan Cabraser,
Lieff Cabraser Heimann & Bernstein, LLP, Kathryn Elaine Barnett,
Lieff, Cabraser, Heimann and Bernstein LLP, Michael W. Sobol, Lieff
Cabraser Heimann & Bernstein, LLP, Daniel A. Small, Cohen Milstein
Sellers & Toll PLLC, Kenneth S. Byrd, Lieff, Cabraser, Heimann and
Bernstein LLP, Melissa Ann Gardner, Lieff Cabraser Heimann
Bernstein, LLP & Robert White Cobbs, Cohen Milstein Sellers And
Toll.
Rick Benitti, Plaintiff, represented by Craig G. Harley, Chitwood
Harley Harnes LLP, Daniel A. Small, Cohen Milstein Sellers & Toll
PLLC, Elizabeth Joan Cabraser, Lieff Cabraser Heimann & Bernstein,
LLP, J. Paul Gignac, Foley Bezek Behle & Curtis LLP, Michael W.
Sobol, Lieff Cabraser Heimann & Bernstein, LLP, Robert White Cobbs,
Cohen Milstein Sellers And Toll & Kathryn Elaine Barnett, Lieff,
Cabraser, Heimann and Bernstein LLP.
Bertha Davis, Plaintiff, represented by Sharron Williams Gelobter,
Attorney at Law, Daniel A. Small, Cohen Milstein Sellers & Toll
PLLC, Elizabeth Joan Cabraser, Lieff Cabraser Heimann & Bernstein,
LLP, Michael W. Sobol, Lieff Cabraser Heimann & Bernstein, LLP,
Robert White Cobbs, Cohen Milstein Sellers And Toll & Kathryn
Elaine Barnett, Lieff, Cabraser, Heimann and Bernstein LLP.
Jason Taylor, Plaintiff, represented by Sharron Williams Gelobter,
Attorney at Law, Daniel A. Small, Cohen Milstein Sellers & Toll
PLLC, Michael W. Sobol, Lieff Cabraser Heimann & Bernstein, LLP &
Robert White Cobbs, Cohen Milstein Sellers And Toll.
Google, LLC, Defendant, represented by Brian M. Willen --
bwillen@wsgr.com -- Wilson Sonsini, pro hac vice, David H. Kramer
-- dkramer@wsgr.com -- Wilson Sonsini Goodrich & Rosati & Peter
Cornelius Holm, Wilson Sonsini Goodrich and Rosati.
John E. Redstone, Karl H. Schulz & Dean M. Bastilla, Interested
Partys, represented by Aaron Michael Zigler, Keller Lenkner LLC,
Daniel A. Small, Cohen Milstein Sellers & Toll PLLC, Elizabeth Joan
Cabraser, Lieff Cabraser Heimann & Bernstein, LLP, Stephen A.
Swedlow, Quinn Emanuel Urquhart & Sullivan & Kathryn Elaine
Barnett, Lieff, Cabraser, Heimann and Bernstein LLP.
Deepa Isac & Edward Fenn, Interested Partys, represented by Daniel
A. Small, Cohen Milstein Sellers & Toll PLLC.
Matthew Berlage, Interested Party, represented by Daniel A. Small,
Cohen Milstein Sellers & Toll PLLC, Elizabeth Joan Cabraser, Lieff
Cabraser Heimann & Bernstein, LLP, J. Paul Gignac, Foley Bezek
Behle & Curtis LLP, Robert A. Curtis, Foley Bezek Behle & Curtis
LLP & Kathryn Elaine Barnett, Lieff, Cabraser, Heimann and
Bernstein LLP.
Patrick Keyes, Interested Party, represented by Daniel A. Small,
Cohen Milstein Sellers & Toll PLLC, Elizabeth Joan Cabraser, Lieff
Cabraser Heimann & Bernstein, LLP, Harvey Jay Rosenfield, Consumer
Watchdog & Kathryn Elaine Barnett, Lieff, Cabraser, Heimann and
Bernstein LLP.
MDL 2286: Court Denies Bid to Stay Midland TCPA Suit
----------------------------------------------------
Judge Michael M. Anello of the U.S. District Court for the Southern
District of California denied the Defendants' motion to stay all
proceedings in the case, IN RE: MIDLAND CREDIT MANAGEMENT, INC.,
TELEPHONE CONSUMER PROTECTION ACT LITIGATION, Case No.
11-md-2286-MMA (MDD) (S.D. Cal.).
Originating in 2011, the MDL comprises a lead class action member
case and several dozen individual member cases alleging that the
Defendants violated the Telephone Consumer Protection Act ("TCPA").
Specifically, the Member Plaintiffs aver that the Defendants
placed debt collection calls to the Member Plaintiffs cell phones
using an automated system, but without the debtors' consent. On
Dec. 16, 2019, the Magistrate Judge issued an order rescheduling
discovery and pretrial motion deadlines. The Magistrate Judge's
order required any motion for class certification and any motion
for summary judgment to be filed no later than June 12, 2020.
The Defendants move to stay the action pending resolution of Barr
v. Am. Ass'n of Political Consultants, currently before the U.S.
Supreme Court. On Jan. 10, 2020, the Supreme Court granted
certiorari in that matter. The Defendants filed the motion on
February 21 and based their motion on the briefing generated in the
petition for writ of certiorari in Ass'n of Political Consultants.
On February 24, the petitioners filed their merits brief. The
respondents have not yet filed their merits brief. The case is set
for argument on April 22, 2020. Accordingly, a decision is
expected by the end of the Supreme Court's current term.
The Defendants argue that if the Supreme Court invalidates the
automated-call restriction, the ruling will dispose of all of the
Paintiffs' TCPA claims in the MDL in one fell swoop. They note
that the MDL's TCPA claims all allege violations of the
automated-call restriction.
Judge Anello holds that the Supreme Court's decision might have an
impact on the merits of the Member Plaintiffs' claims if the Court
both passes the threshold issue and then finds the government-debt
exception is not severable. Regardless, the possibility remains
that the Supreme Court could invalidate the automated-call
restriction. The Judge now proceeds to weigh the competing
interests to determine whether a stay is appropriate.
The Defendants argue that a stay would benefit both parties because
resources would be wasted if the motion to stay were denied and the
Supreme Court were to invalidate the entire automated-call
restriction. Based on the unique characteristics of the MDL, Judge
Anello finds that the Defendants have not carried their burden to
persuade the Court to grant a stay. If the Supreme Court decides
Ass'n of Political Consultants after the motion for class
certification and motion for summary judgment deadline, and to the
extent, if any, its decision has bearing on this Court's
proceedings, the Judge instructs the parties to file a joint status
report detailing the Supreme Court's impact on the MDL within one
week of the Supreme Court's decision.
For the foregoing reasons, Judge Anello denied the Defendants'
motion to stay on the proffered grounds. He vacated the hearing
date on this motion previously set for March 23, 2020.
A full-text copy of the Court's March 18, 2020 Order is available
at https://is.gd/Bj1Qnf from Leagle.com.
Christopher Robinson, Individually and on behalf of all others
similarly situated, Plaintiff, represented by Douglas J. Campion
--
doug@djcampion.com -- Law Offices of Douglas J Campion, Abbas
Kazerounian, Kazerounian Law Group, APC & Joshua B. Swigart --
josh@westcoastlitigation.com -- Hyde & Swigart.
Eduardo Tovar, on behalf of himself and all others similarly
situated, Plaintiff, represented by Brian J. Trenz, Law Offices of
David Schafer PLLC, pro hac vice & David P. Schafer, Law Offices
of
David Schafer PLLC, pro hac vice.
Nicholas Martin, on behalf of himself and others similarly
situated, Plaintiff, represented by Alexander H. Burk, Burke Law
Offices, LLC, pro hac vice.
Dave Scardina, individually and on behalf of a class, Plaintiff,
represented by Daniel A. Edelman, Edelman Combs Latturner &
Goodwin
LLC, pro hac vice, James O. Latturner, Edelman, Combs, Latturner &
Goodwin, LLC, pro hac vice, Cassandra P. Miller, Edelman, Combs,
Latturner & Goodwin LLC, Cathleen M. Combs, Edelman, Combs,
Latturner & Goodwin, LLC, Curtis Charles Warner, Warner Law Firm,
LLC & Francis Richard Greene, Edelman Combs Latturner & Goodwin
LLC.
Chad R. Goetz, Plaintiff, pro se.
Midland Funding LLC, Defendant, represented by Aaron L. Vorce,
Dykema Gossett, Amy M. Gallegos, Jenner & Block LLP, Andrew
Michael
Schwartz, Marshall, Dennehey, Warner, Coleman & Goggin, P.C.,
Benjamin Michael Katz, Burr and Forman, Brett J Natarelli, Dykema
Gossett PLLC, Bryan James Anderson, Dykema Gossett, PLLC, Daniel
Andrew Brown, WILLIAMS KASTNER & GIBBS, Danielle M. Vugrinovich,
Marshall, Dennehey, Warner, Coleman & Goggin, David J. Elkanich,
Holland & Knight, LLP, David M. Schultz, Hinshaw & Culbertson,
LLP,
pro hac vice, Ethan A. Glickstein, Jenner & Block LLP, Heather L.
Kramer -- hkramer@dykema.com -- Dykema Gossett PLLc, James Michael
Golden, Dykema Gossett PLLC, John Anthony Love, King and Spalding,
pro hac vice, Joshua C. Dickinson, SPENCER FANE, LLP, LATI WELLS
SPENCE, MARSHALL DENNEHEY WARNER COLEMAN & GOGGIN PC, Lauren M.
Burnette, Marshall Dennehey Warner Coleman & Goggin, Matthew B.
Ames, Balch & Bingham LLP, Matthew Brady Johnson, Marshall
Dennehey
Warner Coleman & Goggin, Matthew W. McDade, BALCH & BINGHAM, LLP,
Michael Ronald Ayers, Hinshaw & Culbertson LLP,
Palak Naimesh Shah, Hinshaw & Culbertson LLP, Patrick Michael
DeLong, Marshall, Dennehey, Warner, Coleman & Goggin, Patrick T.
McLaughlin, SPENCER FANE LLP, Paul F. Labaki, Peltan Law, PLLC,
Paul A. Wilhelm, Dykema Gossett, Renee Lynn Zipprich, Dykema
Gossett PLLC, Stephen Michael Mahieu, Dykema Gossett, PLLC,
Theodore W. Seitz -- tseitz@dykema.com -- Dykema Gossett PLLC, pro
hac vice, Todd A Gale -- tgale@dykema.com -- Dykema Gossett PLLC,
Todd Philip Stelter, Hinshaw & Culbertson, Amanda Catherine
Fitzsimmons, DLA Piper LLP & Edward D Totino, DLA Piper LLP.
Midland Credit Management, Inc., Defendant, represented by Aaron
L.
Vorce, Dykema Gossett, Aimee Guidry Szygenda, McGlinchey Stafford,
Amanda E Wilson, Amy M. Gallegos, Jenner & Block LLP, Amy R.
Jonker, DYKEMA GOSSETT PLLC, Andrew Michael Schwartz, Marshall,
Dennehey, Warner, Coleman & Goggin, P.C., Anthony J. Palermo,
Holland & Knight, LLP, Benjamin Michael Katz, Burr and Forman,
Brandon Stein, Hinshaw & Culbertson LLP, Brandon M. Wrazen, Peltan
Law, PLLC, Brett J Natarelli, Dykema Gossett PLLC, Bryan James
Anderson, Dykema Gossett, PLLC, Christopher David Johnsen, Holland
& Knight, Christopher Spain, Simmonds & Narita LLP, Cory W.
Eichhorn, Holland & Knight, LLP, pro hac vice, Daniel Andrew
Brown,
WILLIAMS KASTNER & GIBBS, Danielle M. Vugrinovich, Marshall,
Dennehey, Warner, Coleman & Goggin, David J. Elkanich, Holland &
Knight, LLP, David George Peltan, Peltan Law, PLLC, David M.
Schultz, Hinshaw & Culbertson, LLP, pro hac vice, Erica Gooden
Bartimmo, Holland & Knight, LLP, Ethan A. Glickstein, Jenner &
Block LLP, Gennifer Lynn Bridges, Burr & Forman, LLP, Gregg D
Stevens, McGlinchey Stafford, Heather L. Kramer, Dykema Gossett
PLLc, James A. Byram, Jr., BALCH & BINGHAM, LLP, James Michael
Golden, Dykema Gossett PLLC, James S. Kreamer, Baker, Sterchi,
Cowden & Rice, LLC, James Lanter, James Lanter, P.C., Jared D.
Kemper, Dykema Gossett, PLLC, Jason Brent Tompkins, Balch &
Bingham
LLP, pro hac vice, Jeffrey M. Sankey, Sankey Law Offices, Jennifer
L. Braster, Naylor & Braster Attorneys at Law, PLLC, John Anthony
Love, King and Spalding, pro hac vice, John M. Naylor, Naylor &
Braster Attorneys at Law, John Christopher Suedekum, Burr and
Forman, LLP, Jonathan Clayton Brown, Burr Forman LLP, Joseph L.
Francoeur, Wilson Elser Moskowitz Edelman & Dicker LLP, Joseph W
Letzer, Burr and Forman, Joshua C. Dickinson, SPENCER FANE, LLP,
Keasha Ann Broussard, King & Spalding, LLP, pro hac vice, LATI
WELLS SPENCER, MARSHALL DENNEHEY WARNER COLEMAN & GOGGIN PC, Laura
Irene Hillerich, Marshall, Dennehey, Warner, Coleman & Goggin,
Laura Westerman Tanner, Burr & Forman, LLP, Lauren M. Burnette,
Marshall Dennehey Warner Coleman & Goggin, Lauren Lynn Millcarek,
Holland & Knight, LLP, Lawrence J. Bartel, III, MARSHALL DENNEHEY
WARNER COLEMAN & GOGGIN, Leah Suzanne Strickland, Solomon Ward
Seidenwurm & Smith LLP, M. Cory Nelson Lewis, Rice & Fingersh,
pro
hac vice, Matthew B. Ames, Balch & Bingham LLP, Matthew J. Devine,
Burr & Forman, LLP, Matthew Brady Johnson, Marshall Dennehey
Warner
Coleman & Goggin, Mei-Ying M. Imanaka, Solomon Ward Seidenwurm &
Smith, LLP, Melissa S. Gutierrez, McGlinchey Stafford, Michael
Ronald Ayers, Hinshaw & Culbertson LLP, Nicole Strickler, Messer,
Stilp & Strickler, Ltd., pro hac vice, Palak Naimesh Shah, Hinshaw
& Culbertson LLP, Patrick Michael DeLong, Marshall, Dennehey,
Warner, Coleman & Goggin, Patrick T. McLaughlin, SPENCER FANE LLP,
Paul F. Labaki, Peltan Law, PLLC, Paul A. Wilhelm, Dykema Gossett,
Peter J. Caltagirone, Solomon, Ward, Seidenwurm and Smith, Rachel
R. Friedman, Burr & Forman LLP, Randy Jiro Aoyama, Hinshaw &
Culbertson LLP, Reid Stephens Manley, Burr Forman LLP, Renee Lynn
Zipprich, Dykema Gossett PLLC, Richard David Lane,, Marshall
Dennehey Warner Coleman & Goggin, Robert Franklin Springfield,
Burr
& Forman, LLP, Ronald Michael Metcho, II, Marshall, Dennehey,
Warner, Coleman & Goggin, P.C., pro hac vice, Russell S. Ponessa,
Hinshaw & Culbertson LLP, Stephen Michael Mahieu Dykema Gossett,
PLLC, Theodore J. Greeley, Dykema Gossett, PLLC, Theodore W.
Seitz, Dykema Gossett PLLC, pro hac vice, Thomas Butler Alleman,
Dykema Cox Smith, Thomas F. Landers, Solomon Ward Seidenwurm &
Smith, LLP, Thomas A. Leghorn, Wilson, Elser Law Firm, Thomas M.
Martin, Lewis Rice LLC, Todd A Gale, Dykema Gossett PLLC, Todd
Philip Stelter, Hinshaw & Culbertson, Tomio B. Narita, Simmonds &
Narita LLP, Amanda Catherine Fitzsimmons, DLA Piper LLP, Edward D
Totino, DLA Piper LLP, Jacqueline A. Simms-Petredis,, Burr &
Forman, LLP, Tatiana Alexander Waits, McGlinchey Stafford LLP &
Thomas Richard DeBray, Jr.,, Balch & Bingham, LLP.
Encore Capital Group, Inc., Defendant, represented by Amy M.
Gallegos, Jenner & Block LLP, Brett J Natarelli, Dykema Gossett
PLLC, Bryan James Anderson, Dykema Gossett, PLLC, Cory W.
Eichhorn,
Holland & Knight, LLP, pro hac vice, Danielle M. Vugrinovich,
Marshall, Dennehey, Warner, Coleman & Goggin, Ethan A. Glickstein,
Jenner & Block LLP, James Michael Golden, Dykema Gossett PLLC,
Lauren Lynn Millcarek, Holland & Knight, LLP, Matthew B. Ames,
Balch & Bingham LLP, Rachel R. Friedman, Burr & Forman LLP, Renee
Lynn Zipprich, Dykema Gossett PLLC, Robert Franklin Springfield,
Burr & Forman, LLP, Theodore W. Seitz, Dykema Gossett PLLC, pro
hac
vice, Amanda Catherine Fitzsimmons, DLA Piper LLP & Edward D
Totino, DLA Piper LLP.
Laura E. Hartman, an individual, Defendant, represented by Robert
W. Murphy, Law Office of Robert W. Murphy.
X, Y, Z Corporations, Defendant, represented by Lauren M.
Burnette,
Marshall Dennehey Warner Coleman & Goggin.
Frederick J. Hanna & Associates, P. C., Defendant, represented by
Scot W. Groghan, Frederick J. Hanna & Associates, P.C.
MDL 2744: Ct Narrows Claims in Monostable Electronic Gearshift Suit
-------------------------------------------------------------------
In the case, IN RE: FCA US LLC MONOSTABLE ELECTRONIC GEARSHIFT
LITIGATION, MDL No. 2744. SARAH LALLI, Plaintiff, v. FCA US, LLC,
Defendant, Case Nos. 16-md-02744, 19-10046 (E.D. Mich.), Judge
David M. Lawson of the U.S. District Court for the Eastern District
of Michigan, Southern Division, granted in part and denied in part
Chrysler's motion to dismiss all of the claims.
Sarah Lalli, a citizen of Florida, filed the action in the district
against FCA US, LLC (Chrysler) on Jan. 7, 2019, seeking damages for
the diminished value of a 2014 Jeep Grand Cherokee equipped with a
monostable shifter. She pleaded claims on behalf of herself and a
proposed class of Florida buyers of the class vehicles for
violations of Florida's Deceptive and Unfair Trade Practices Act
("FDUTPA"), fraudulent concealment, breach of express warranty
(under Florida law and the Magnuson-Moss Warranty Act), and unjust
enrichment. The case has been joined in the MDL proceeding as a
tag-along action by the Judicial Panel on Multidistrict
Litigation.
Lalli purchased her Grand Cherokee as a new vehicle from a Chrysler
dealer in Vero Beach, Florida on Dec. 17, 2014. It was equipped
with a monostable shifter. She does not contend that she suffered
any injury caused by the vehicle's operation. She seeks only
economic loss damages.
Lalli is not the first Florida Plaintiff joined in these
proceedings. The Court previously dismissed, by the consent of the
parties, the claims of former Florida plaintiff Justine Andollo,
which had been pleaded in Counts XVIII-XXI of the Plaintiffs'
second amended consolidated master complaint. Andollo's claims
were dismissed because she disappeared and did not participate in
discovery. Andollo pleaded the same causes of action described on
behalf of a class of Florida plaintiffs. Her claims were
incorporated into a complaint that joined as plaintiffs numerous
other individuals from various states. The multi-state action
including Andollo was filed in the district on April 28, 2017 --
Andollo v. FCA US, LLC, No. 17-11376. The claims pleaded on behalf
of the Florida plaintiff and absent class members in that case were
materially identical to those brought by Lalli in her separate
action in 2019.
Chrysler responded with a motion to dismiss all of the claims,
arguing several legal theories. It argues that the FDUTPA claim is
untimely and not subject to any tolling rules, (2) the fraudulent
concealment claim is barred by Florida's economic loss doctrine,
(3) the breach of express warranty claim cannot be maintained
because the Plaintiff does not allege that she conveyed any
pre-suit notice of the warranty claim to the Defendant, and (4)
under Florida law an unjust enrichment claim based on the same
factual premises as a breach of contract (warranty) claim must be
dismissed as defectively pleaded. Lalli disputes each of these
arguments.
Judge Lawson granted in part and denied in part the Defendant's
motion to dismiss. The Plaintiff's putative class claims under the
FDUTPA, and the warranty claims in Counts I and IV are dismissed in
their entirety. The motion is denied in all other respects.
Judge Lawson finds that Chrysler is correct that any putative class
claims are time-barred and cannot be rescued by the principle of
class tolling, but it has not cited any authority for the
proposition that Lalli's individual claim cannot go forward now as
permitted by American Pipe. Therefore, Lalli's putative class
claims under the FDUTPA are dismissed. She may proceed with her
individual claim under that statute.
Next, Florida's intermediate appellate courts have applied that
holding to conclude that the economic loss rule will not bar claims
of fraudulent inducement such as are asserted here, where the
defendant allegedly concealed facts to encourage a plaintiff to buy
its product. For this reason, Judge Lawson denied the motion to
dismiss the fraudulent concealment claim based on that doctrine.
Judge Lawson cannot find a reason to believe that Florida's Supreme
Court would not follow the more developed and persuasive reasoning
stated by the Paramount court, rather than the conclusion reached
in the Lazarra decision. Under the more persuasive authority of
the line of decisions following Paramount, the express warranty
claim must be dismissed for want of any pre-suit notice. The Judge
dismissed Count IV of Lalli's complaint (breach of express warranty
under Florida's U.C.C.), as well as Count I under the Magnuson-Moss
Warranty Act (which is dependent on the state-law express warranty
claim).
There presently is a live dispute over whether the warranty covers
the defect, and, if it does not, the unjust enrichment claim could
proceed. The Defendant never has conceded that the warranty in
question does cover the defect, and the pleading of the restitution
claim in the alternative therefore is not foreclosed at this stage
of the case. Moreover, because the express warranty claim must be
dismissed for want of pre-suit notice, allowing the unjust
enrichment count to proceed is appropriate since there no longer
will be any live Florida warranty claim in Lalli's case.
Finally, Lalli's individual claim under the FDUTPA is timely under
the rule of American Pipe, but the tardy filing of the putative
Florida class claims cannot be excused by that rule or any other
recognized tolling principle. The express warranty claim must be
dismissed because the Plaintiff does not allege that she provided
any pre-suit notice of the claim, but the fraudulent concealment
and unjust enrichment claims (on both individual and class bases)
are sufficiently pleaded and may proceed, rules Judge Lawson.
A full-text copy of the Court's March 18, 2020 Opinon & Order is
available at https://is.gd/vIz3Cx from Leagle.com.
In Re FCA US LLC Monostable Electronic Gearshift Litigation,
represented by Larry J. Saylor -- saylor@millercanfield.com --
Miller, Canfield.
Bruce Vosburgh, Plaintiff, represented by E. Powell Miller --
epm@miller.law.com -- The Miller Law Firm, Sharon S. Almonrode --
ssa@miller.law.com -- The Miller Law Firm, P.C. & Dennis A.
Lienhardt -- dal@millerlawpc.com -- The Miller Law Firm, P.C..
Timothy Weber, Plaintiff, represented by E. Powell Miller, The
Miller Law Firm, Joseph H. Meltzer -- jmeltzer@ktmc.com -- Kessler
Topaz Meltzer & Check, LLP, Peter A. Muhic -- pmuhic@ktmc.com --
Kessler Topaz Meltzer & Check, LLP, Sharon S. Almonrode, The
Miller
Law Firm, P.C. & Tyler S. Graden, Kessler Topaz Meltzer & Check,
LLP.
Bernadine Hartt, Plaintiff, represented by David M. Honigman --
dhonigman@manteselaw.com -- Mantese Honigman, PC, Douglas Toering
-- dtoering@manteselaw.com -- Mantese Honigman, P.C., Gerard V.
Mantese -- gmantese@manteselaw.com -- Mantese Honigman, P.C., E.
Powell Miller, The Miller Law Firm, James A. Buster, Mantese
Honigman, P.C., Kevin A. Seely, Robbins Arroyo LLP, Krista M.
Hosmer, Mantese Honigman, P.C., Leonid Kandinov, Robbins Arroyo
LLP, Matthew Thomas Prewitt, Cuneo Gilbert & LaDuca, LLP & Robert
K. Shelquist -- rkshelquist@locklaw.com -- Lockridge Grindal
Nauen
PLLP.
Berardino D'Onofrio, Plaintiff, represented by David M. Honigman,
Mantese Honigman, PC, Douglas Toering, Mantese Honigman, P.C.,
Gerard V. Mantese, Mantese Honigman, P.C., E. Powell Miller, The
Miller Law Firm, James A. Buster, Mantese Honigman, P.C., Kevin A.
Seely, Robbins Arroyo LLP, Krista M. Hosmer, Mantese Honigman,
P.C., Leonid Kandinov, Robbins Arroyo LLP, Matthew Thomas Prewitt,
Cuneo Gilbert & LaDuca, LLP & Robert K. Shelquist, Lockridge
Grindal Nauen PLLP.
Marc Hughes, Plaintiff, represented by Daniel E. Gustafson --
dgustafson@gustafsongluek.com -- Gustafson Gluek PLLC & E. Powell
Miller, The Miller Law Firm.
Andre Barfield, Plaintiff, represented by E. Powell Miller, The
Miller Law Firm, Kevin F. O'Shea -- kfo@miller.law -- Miller Law
Firm & Sharon S. Almonrode, The Miller Law Firm, P.C..
Nina Walker, Plaintiff, represented by Daniel E. Gustafson,
Gustafson Gluek PLLC & E. Powell Miller, The Miller Law Firm.
David Goldsmith, Plaintiff, represented by Steve W. Berman --
steve@hbsslaw.com -- Hagens Berman Sobol Shapiro LLP, Christopher
R. Pitoun -- christopherp@hbsslaw.com -- Hagens Berman, E. Powell
Miller, The Miller Law Firm, Elizabeth A. Fegan --
beth@hbsslaw.com
-- Hagens Berman Sobol Shapiro, LLP & Thomas Eric Loeser, Hagens
Berman Sobol Shapiro LLP.
Michael Vincent Nathan, Jr, Plaintiff, represented by Steve W.
Berman, Hagens Berman Sobol Shapiro LLP, Christopher R. Pitoun,
Hagens Berman, E. Powell Miller, The Miller Law Firm, Elizabeth A.
Fegan, Hagens Berman Sobol Shapiro, LLP & Thomas Eric Loeser --
toml@hbsslaw.com -- Hagens Berman Sobol Shapiro LLP.
Pascual Pietri, Plaintiff, represented by Steve W. Berman, Hagens
Berman Sobol Shapiro LLP, Christopher R. Pitoun, Hagens Berman, E.
Powell Miller, The Miller Law Firm, Elizabeth A. Fegan, Hagens
Berman Sobol Shapiro, LLP & Thomas Eric Loeser, Hagens Berman
Sobol
Shapiro LLP.
FCA US LLC, Defendant, represented by Amanda J. Hettinger --
ahettinger@thompsoncoburn.com -- Thompson Coburn LLP, Kathy A.
Wisniewski -- kwisniewski@thompsoncoburn.com -- Thompson Coburn
LLP, Larry J. Saylor, Miller, Canfield, Sharon B. Rosenberg --
srosenberg@thompsoncoburn.com -- Thompson Coburn LLP, Stephen A.
D'Aunoy, Thompson Coburn LLP, Cheryl A. Bush -- bush@bsplaw.com --
Bush, Seyferth & Paige, PLLC, Michael R. Williams --
williams@bsplaw.com -- Bush Seyferth & Paige PLLC & Thomas L.
Azar,
Jr. -- tazar@thompsoncoburn.com -- Thompson Coburn LLP.
MENLO THERAPEUTICS: Faces Foamix Merger-Related Class Suits
-----------------------------------------------------------
Menlo Therapeutics Inc. said in its Form 10-K report filed with the
U.S. Securities and Exchange Commission on March 3, 2020, for the
fiscal year ended December 31, 2019, that the company has been
named as a defendant class several class action suits in several
states pursuant to its merger with Foamix Pharmaceuticals Ltd.
On November 10, 2019, the company and Foamix Pharmaceuticals Ltd.,
or Foamix, and Giants Merger Subsidiary Ltd., a wholly-owned
subsidiary of Menlo, or Merger Sub, entered into an Agreement and
Plan of Merger (as amended by Amendment No. 1 to the Agreement and
Plan of Merger, dated as of December 4, 2019, as may be further
amended from time to time), or the Merger Agreement. Pursuant to
the terms of the Merger Agreement, Merger Sub will merge with and
into Foamix, with Foamix surviving as a wholly-owned subsidiary of
Menlo, or the Merger.
On December 11, 2019, a purported Foamix shareholder filed a
putative class action lawsuit in the United States District Court
for the District of Delaware against Foamix, the members of the
Foamix Board, Menlo and Merger Sub, claiming generally that the
joint proxy statement/prospectus issued in connection with the
Merger omitted material information in violation of Sections 14(a)
and 20(a) of the Exchange Act.
The action, captioned Sabatini v. Foamix Pharmaceuticals Ltd., et
al., Case No. 1:19-cv-02257 (D. Del.), or the Sabatini Action,
purports to be brought on behalf of all public shareholders of
Foamix, excluding defendants and certain affiliated persons or
entities, and seeks, among other things, to enjoin consummation of
the Merger, or alternatively rescission or rescissory damages; to
compel the individual defendants to disseminate a joint proxy
statement/prospectus that does not contain any untrue statements of
material fact and that states all material facts required in it or
necessary to make the statements contained therein not misleading;
a declaration that defendants violated Sections 14(a) and/or 20(a)
of the Exchange Act; and an award of costs, including attorneys'
and experts' fees and expenses.
On December 12 and 17, 2019, respectively, two purported Foamix
shareholders filed lawsuits in the United States District Court for
the District of New Jersey and the United States District Court
for the Southern District of New York against Foamix and the
members of the Foamix Board.
The actions, captioned Wang v. Foamix Pharmaceuticals Ltd., et al.,
Case No. 19-21316 (D.N.J.), or the Wang Action, and Simms v. Foamix
Pharmaceuticals Ltd., et al., Case No. 1:19-cv-11529 (S.D.N.Y.), or
the Simms Action, each purport to be brought on behalf of the named
plaintiff only and allege substantially similar claims and seek
substantially similar relief as the Sabatini Action, as well as an
accounting of damages allegedly suffered by the plaintiff.
On December 18, 2019, a purported Foamix shareholder filed a
putative class action lawsuit in the New Jersey District Court
against Foamix, the members of the Foamix Board, Menlo and Merger
Sub, alleging generally claims for breach of fiduciary duty, aiding
and abetting breaches of fiduciary duty, and violations of Sections
14(a) and 20(a) of the Exchange Act.
The action, captioned Wilson v. Foamix Pharmaceuticals Ltd., et
al., Case No. 3:19-cv-21563 (D.N.J.), or the Wilson Action,
purports to be brought on behalf of all public shareholders of
Foamix, excluding defendants and certain affiliated persons or
entities, and alleges, among other things, that certain members of
the Foamix Board and management are conflicted because they will
receive unique benefits in connection with the Merger, that the
Merger Agreement contains preclusive deal protection provisions,
that the disclosures issued in connection with the Merger are false
and misleading, and that the Merger consideration is inadequate.
The Wilson Action seeks, among other things, to enjoin the Merger,
or alternatively rescission or rescissory damages; a declaration
that the Merger Agreement was entered into in breach of fiduciary
duty and is therefore invalid and unenforceable; an order directing
the individual defendants to commence a sale process for Foamix and
obtain a transaction; an accounting of damages allegedly suffered
by plaintiff and the putative class; and an award of costs,
including attorneys' and experts' fees and expenses.
On December 20, 2019, a purported Foamix shareholder filed a
lawsuit in the Southern District of New York District Court against
Foamix and the members of the Foamix Board.
The action, captioned Miller v. Foamix Pharmaceuticals Ltd., et
al., Case No. 1:19-cv-1169 (S.D.N.Y.), or the Miller Action,
purports to be brought on behalf of the named plaintiff only and
alleges substantially similar claims and seeks substantially
similar relief as the Sabatini, Wang, Simms and Wilson Actions.
On January 7, 2020, a purported shareholder of Foamix filed a
lawsuit against Foamix and the members of the Foamix Board in the
United States District Court for the District of New Jersey,
alleging that the joint proxy statement/prospectus issued in
connection with the Merger omitted material information in
violation of Section 14(a) and Section 20(a) of the Exchange Act
and Rule 14a-9 promulgated thereunder.
The action, captioned Bushansky v. Foamix Pharmaceuticals Ltd., et
al., Case No. 3:20-cv-00256 (D.N.J.), or the Bushansky Action,
purports to be brought on behalf of the named plaintiff only and
seeks, among other things, injunctive or other equitable relief,
including to enjoin consummation of the Merger, or alternatively
rescission or rescissory damages, a declaration that the defendants
violated Sections 14(a) and/or 20(a) of the Exchange Act, and an
award of costs, including attorneys' and experts' fees and
expenses.
On January 21, 2020, a purported shareholder of Foamix filed an
individual action against Foamix and the Foamix Board in the United
States District Court for the District of New Jersey under the
caption Nam v. Foamix Pharmaceuticals Ltd., et al., Case No.
3:20-cv-00670 (D.N.J.), (the "Nam Action" and together with the
Sabatini, Wang, Simms, Wilson, Miller and Bushansky Actions, the
"Lawsuits").
The Nam Action generally claims that the joint proxy
statement/prospectus issued in connection with the Merger omitted
material information in violation of Sections 14(a) and 20(a) of
the Exchange Act. The Nam Action seeks, among other things,
injunctive relief to prevent consummation of the Merger, rescission
or rescissory damages in the event the Merger is consummated, a
declaration that defendants violated Sections 14(a) and/or 20(a) of
the Exchange Act, costs, including attorneys' fees and such other
and further relief as the court may deem just and proper.
In addition, the Nam Action requests an order directing the
individual defendants to disseminate a proxy statement that does
not contain any untrue statements of material fact and that states
all material facts necessary to make the statements contained
therein not misleading.
The Company believes that the lawsuits are without merit and
intends to vigorously defend itself.
Accordingly, the Company cannot reasonably estimate any range of
potential future charges, and the Company has not recorded any
accrual for a contingent liability associated with these legal
proceedings.
Menlo Therapeutics Inc., a late-stage biopharmaceutical company,
focuses on the development and commercialization of serlopitant for
the treatment of pruritus associated with dermatologic conditions
in the United States. Menlo Therapeutics Inc. was founded in 2011
and is headquartered in Redwood City, California.
MENLO THERAPEUTICS: Settlement Reached in Savelstrov Class Suit
---------------------------------------------------------------
Menlo Therapeutics Inc. said in its Form 10-K report filed with the
U.S. Securities and Exchange Commission on March 3, 2020, for the
fiscal year ended December 31, 2019, that the parties in a
securities class action have reached a deal to resolve the
dispute.
On November 8, 2018, a putative securities class action complaint
captioned Pavel Savelstrov v. Menlo Therapeutics, Inc., et al.,
Case No.18-CIV-06049, was filed in state court in the Superior
Court of the State of California, County of San Mateo, against the
Company, certain of its current executive officers and its
directors, and certain underwriters in the Company's initial public
offering..
On January 28, 2019, a putative securities class action complaint
captioned Hugh McKay v. Menlo Therapeutics, Inc., et al., Case
No.19-CIV-00574, was filed in state court in the Superior Court of
the State of California, County of San Mateo, against the Company,
certain of its current executive officers and its directors, and
certain underwriters in the Company's initial public offering..
The complaints alleged violations of Sections 11, 12(a)(2) and 15
of the Securities Act of 1933 due to allegedly false and misleading
statements in connection with the Company's initial public
offering. The McKay action has been consolidated with the
Savelstrov action and the claim for violations of Section 12(a)(2)
has been dismissed.
The parties have mediated the consolidated lawsuit and reached a
settlement, providing for payment to the class of plaintiffs in the
amount of $9.5 million in return for a release of all claims
against the defendants, including the Company and its current and
former officers and directors.
The settlement is subject to final documentation and Court
approval. The Company's insurance carriers will pay the majority of
the settlement amount.
The Company accrued for the remaining settlement amount that is not
covered by insurance carriers as of December 31, 2019, which does
not have a material impact on its financial statements.
Menlo Therapeutics Inc., a late-stage biopharmaceutical company,
focuses on the development and commercialization of serlopitant for
the treatment of pruritus associated with dermatologic conditions
in the United States. Menlo Therapeutics Inc. was founded in 2011
and is headquartered in Redwood City, California.
MESA AIR GROUP: Lowthorp Alleges Misleading IPO Docs
----------------------------------------------------
David G. Lowthorp, Individually And On Behalf Of All Others
Similarly Situated, Plaintiff, V. Mesa Air Group, Inc.; Jonathan G.
Ornstein; Michael J. Lotz; Daniel J. Altobello; Ellen N. Artist;
Mitchell Gordon; Dana J. Lockhart; G. Grant Lyon; Giacomo Picco;
Harvey Schiller; Don Skiados; Raymond James & Associates, Inc.;
Merrill Lynch, Pierce, Fenner & Smith Incorporated; Cowen and
Company, LLC; Stifel, Nicolaus & Company, Incorporated; and
Imperial Capital, LLC, Defendants, Case No. 2:20-cv-00648-DLR (D.
Ariz., April 1, 2020) is a securities class action brought by the
Plaintiff, on behalf of persons who purchased or otherwise acquired
Defendant Mesa Air Group's securities pursuant and/or traceable to
the registration statement and related prospectus issued in
connection with Mesa Air Group's August 2018 initial public
offering compensable damages caused by Defendants' violations of
the Securities Act of 1933.
In August 2018, Defendants held the IPO, offering approximately 11
million shares of common stock to the investing public at $12.00
per share.
According to the Registration Statement, Mesa Air Group touted its
"competitive cost structure" and "track record of reliable
performance," its ability to focus its efforts on safety and
reliability, and touted itself as a low-cost operator with key
efficiencies, including maintenance, such as its "responsible
outsourcing of certain aircraft maintenance and other operating
functions[,]" while also having its own maintenance team.
The complaint consider statements to be materially false and/or
misleading because they misrepresented and failed to disclose the
following adverse facts pertaining to the Company's business,
operational and financial results, which were known to Defendants
or recklessly disregarded by them. Specifically, Defendants made
false and/or misleading statements and/or failed to disclose that:
(1) Mesa Air Group's operational performance was poor and below
industry standards; (2) Mesa Air Group had a shortage of qualified
mechanics and maintenance personnel; (3) Mesa Air Group had an
inadequate number of spare aircraft and parts; (4) Mesa Air Group
did not have a strong track record of reliable performance; (5)
then-existing "risks" had already materialized; (6) Mesa Air Group
knew of undisclosed adverse trends and uncertainties at the time of
the IPO; and (7) as a result, Defendants' public statements were
materially false and misleading at all relevant times.
Since the IPO, and as a result of the disclosure of material
adverse facts omitted from the Company’s Registration Statement,
Mesa Air Group's stock price has significantly fallen below its IPO
price, damaging Plaintiff and Class members. On March 30, 2020, the
Company's stock closed at $3.11 per share, or 74% less than its IPO
price.
Mesa Air Group, Inc. operates as the holding company for Mesa
Airlines, Inc., which provides regional air carrier services under
capacity purchase agreements with American Airlines and United
Airlines.
Raymond James & Associates, Inc. is a St. Petersburg, Florida-based
investment banking firm.
Merrill Lynch, Pierce, Fenner & Smith Incorporated is a New
York-based investment banking firm.
Cowen and Company, LLC is an investment banking firm based in New
York.
Stifel, Nicolaus & Company, Incorporated is a St. Louis,
Missouri-based investment banking firm.
Imperial Capital, LLC is a New York-based investment banking firm.
[BN]
The Plaintiff is represented by:
Richard G. Himelrick, Esq.
TIFFANY & BOSCO, P.A.
Seventh Floor Camelback Esplanade II
2525 E. Camelback Road
Phoenix, AZ 85016
Telephone: (602) 255-6000
Email: rgh@tblaw.com
– and –
Phillip Kim, Esq.
Laurence M. Rosen, Esq.
THE ROSEN LAW FIRM, P.A.
275 Madison Avenue, 40th Floor
New York, NY 10016
Telephone: (212) 686-1060
Email: pkim@rosenlegal.com
lrosen@rosenlegal.com
NCAA: Baker Seeks Damages Over Football-Related Head Injuries
-------------------------------------------------------------
Thomas Baker, individually and on behalf of all others similarly
situated, Plaintiff, v. National Collegiate Athletic Association
(NCAA), Defendants, Case No. 20-cv-00846 (S.D. Ind., March 16,
2020), seeks economic, monetary, actual, consequential,
compensatory, and punitive damages, past, present and future
medical expenses, other out of pocket expenses, lost time and
interest, lost future earnings, litigation and attorney fees,
prejudgment and post-judgment interest, injunctive and/or
declaratory relief and such other and further relief resulting from
negligence, fraudulent concealment, breach of express contract,
breach of implied contract, breach of third-party express contract
and unjust enrichment.
Thomas Baker played football in Alcorn from 1998 to 2000, as a wide
receiver. He suffered from numerous concussions, as well as
countless sub-concussive hits as part of routine practice and
gameplay. Baker is suffering from depression, headaches, memory
loss, loss of concentration and emotional instability.
NCAA is an unincorporated association with its principal office
located at 700 West Washington Street, Indianapolis, Indiana 46206.
The NCAA is the governing body of collegiate athletics that
oversees twenty-three college sports and over 400,000 students who
participate in intercollegiate athletics. Baker alleges NCAA knew
about the debilitating long-term dangers of concussions,
concussion-related injuries and sub-concussive injuries that
resulted from playing college football, but did nothing.
Plaintiff is represented by:
Jay Edelson, Esq.
Benjamin H. Richman, Esq.
EDELSON PC
350 North LaSalle Street, 13th Floor
Chicago, IL 60654
Tel: 312.589.6370
Fax: 312.589.6378
Email: jedelson@edelson.com
brichman@edelson.com
- and -
Rafey S. Balabanian, Esq.
329 Bryant Street
San Francisco, CA 94107
Tel: 415.212.9300
Fax: 415.373.9435
Email: rbalabanian@edelson.com
- and -
Jeff Raizner, Esq.
RAIZNER SLANIA LLP
2402 Dunlavy Street
Houston, TX 77006
Tel: 713.554.9099
Fax: 713.554.9098
Email: efile@raiznerlaw.com
NESTLE PURINA: Jacquin Consumer Suit Removed to E.D. Missouri
-------------------------------------------------------------
The class action lawsuit captioned as KELLEN JACQUIN, KRISTEN
SPARKS and GREGORY WATERS, on behalf of themselves and all others
similarly situated v. NESTLE PURINA PETCARE COMPANY, Case No.
2022-CC-00473 (Filed March 2, 2020), was removed from the Missouri
Circuit Court, City of St. Louis, to the U.S. District Court for
the Eastern District of Missouri on April 1, 2020.
The Eastern District of Missouri Court Clerk assigned Case No.
4:20-cv-00467 to the proceeding.
The Plaintiffs bring this action to recover damages for allegedly
unlawful practices under the Missouri Merchandising Practices Act.
The Plaintiffs' petition alleges that Purina falsely and
deceptively "marketed, advertised, and sold" certain of its pet
food and vitamin products as "safe and without risk to animals. The
Plaintiffs contend that those representations are false and
deceptive because the products contained certain levels of
glyphosate, an alleged cause of "serious disease in animals."
Nestle Purina Petcare is an American subsidiary of Nestle. Nestle
Purina Petcare produces and markets pet food, treats and cat
litter.[BN]
The Defendant is represented by:
Booker T. Shaw, Esq.
Amanda J. Hettinger, Esq.
Kristen E. Sanocki, Esq.
THOMPSON COBURN LLP
One U.S. Bank Plaza, Suite 2700
St. Louis, MO 63101
Telephone: (314) 552-6000
Facsimile: (314) 552-7000
E-mail: bshaw@thompsoncoburn.com
ahettinger@thompsoncoburn.com
ksanocki@thompsoncoburn.com
- and -
Keri E. Borders, Esq.
Dale J. Giali, Esq.
MAYER BROWN
350 South Grand Avenue, 25th Floor
Los Angeles, CA 90071
Telephone: (213) 229-9500
E-mail: kborders@mayerbrown.com
dgiali@mayerbrown.com
NEW YORK: App. Ct. Dismisses Counts I, II v. MTA & LIRR in Jacobs
-----------------------------------------------------------------
In the case, MEREDITH JACOBS, ETC., ET AL., Respondents, v.
METROPOLITAN TRANSPORTATION AUTHORITY, ETC., ET AL., Appellants, ET
AL., Defendants, 2018-08928, Index No. 606977/17 (N.Y. App. Div.),
the Appellate Division of the Supreme Court of New York, Second
Department, reversed the order of Judge Antonio I. Brandveen of the
Supreme Court, Nassau County, entered July 12, 2018, denying those
branches of the motion of the Defendants Metropolitan
Transportation Authority and Long Island Railroad which were
pursuant to CPLR 3211(a) to dismiss the first and second causes of
action insofar as asserted against them.
The Plaintiffs are monthly Long Island Rail Road ticket holders who
allegedly suffered damages arising from, among other things, train
service disruptions, overcrowded platforms, and unsanitary and
unsafe conditions in trains and stations between April 2017 and
January 2018. They commenced the putative class action on behalf
of themselves and those similarly situated against the Defendant
MTA and its subsidiary, Defendant LIRR, among others, asserting
causes of action to recover damages for breach of contract,
negligence, and intentional infliction of emotional dismiss.
The Defendants moved pursuant to CPLR 3211(a)(1) and (7) to dismiss
the amended complaint insofar as asserted against them. They argued
that the tort causes of action were barred under the prior notice
and pleading requirements of Public Authorities Law Section 1276(1)
and (2), and under the doctrine of governmental immunity. They
further argued that the Plaintiffs failed to state causes of action
to recover damages for breach of contract, negligence, and
intentional infliction of emotional distress insofar as asserted
against them.
The Plaintiffs opposed the motion. In an order entered July 12,
2018, the Supreme Court granted that branch of the Defendants'
motion which was to dismiss the intentional infliction of emotional
distress cause of action insofar as asserted against them and
denied those branches of the motion which were to dismiss the
breach of contract and negligence causes of action insofar as
asserted against them. The Defendants appeal.
The Appellate Division finds that service of a notice of claim
within 90 days after accrual of the claim is a condition precedent
to the commencement of an action sounding in tort against the MTA.
The plaintiffs failed to serve the MTA with a notice of claim. In
addition, contrary to the Supreme Court's determination, the public
interest exception to the notice of claim requirement does not
apply in the case. Accordingly, the Supreme Court should have
granted that branch of the Defendants' motion which was to dismiss
the negligence cause of action insofar as asserted against the MTA,
rules the Appellate Division.
The complaint in an action against the LIRR must contain an
allegation that at least 30 days have elapsed since it was
presented with a demand or claim upon which the action is founded,
and that the LIRR has neglected or refused to adjust or pay the
claim. The requirement is distinct from and serves purposes
different from the notice of claim requirement contained in Public
Authorities Law Section 1276(2).
In the case, the Appellate Division finds that the amended
complaint does not allege that the Plaintiffs presented the LIRR
with a demand upon which their action was founded, and that 30 days
had elapsed without resolution. Accordingly, the Supreme Court
should have granted that branch of the Defendants' motion which was
to dismiss the negligence cause of action insofar as asserted
against the LIRR.
Assuming that the purchase of a monthly commutation ticket
establishes a contractual relationship between the Defendants and
the Plaintiffs, the documentary evidence submitted by the
Defendants, in the form of sections of the passenger tariff in
effect at all relevant times, conclusively established a defense as
a matter of law to the allegations of breach of contract.
The tariff set forth a detailed procedure for obtaining refunds,
which the Plaintiffs do not allege to have followed. The tariff
also prohibited refunds for service disruptions and only permitted
refunds to the extent a commutation ticket has or could have been
used for travel. Consequently, the Supreme Court should have
granted that branch of the Defendants' motion which was to dismiss
the breach of contract cause of action insofar as asserted against
them.
The Appellate Division need not reach the Defendants' remaining
contentions in light of its determination.
Based on the foregoing, the order is reversed insofar as appealed
from, on the law, with costs, and those branches of the motion of
Defendants MTA and LIRR which were pursuant to CPLR 3211(a) to
dismiss the first and second causes of action insofar as asserted
against them are granted, rules the Appellate Division.
A full-text copy of the Appellate Division's Feb. 5, 2020 Decision
& Order is available at https://is.gd/a6zeKJ from Leagle.com.
Mark D. Hoffer, Jamaica, NY (Kevin P. McCaffrey -- kpmccaf@lirr.org
-- of counsel), for appellants.
NEWLINK GENETICS: 2nd Cir. Appeal in Nguyen Action Still Pending
----------------------------------------------------------------
NewLink Genetics Corporation said in its Form 20-F report filed
with the U.S. Securities and Exchange Commission on March 3, 2020,
for the fiscal year ended December 31, 2019, that the appeal from a
trial court ruling in the Nguyen class action lawsuit is still
pending.
On or about May 12, 2016, Trevor Abramson filed a putative
securities class action lawsuit in the United States District Court
for the Southern District of New York, captioned Abramson v.
NewLink Genetics Corp., et al., Case 1:16-cv-3545 (the Securities
Action).
Subsequently, the Court appointed Michael and Kelly Nguyen as lead
plaintiffs and approved their selection of Kahn, Swick & Foti, LLC
as lead counsel in the Securities Action. On October 31, 2016, the
lead plaintiffs filed an amended complaint asserting claims under
the federal securities laws against the Company, the Company's
Chief Executive Officer Charles J. Link, Jr., and the Company's
Chief Medical Officer and President Nicholas Vahanian,
(collectively, the Defendants).
The amended complaint alleges the Defendants made material false
and/or misleading statements that caused losses to the Company's
investors. The Defendants filed a motion to dismiss the amended
complaint on July 14, 2017.
On March 29, 2018, the Court dismissed the amended complaint for
failure to state a claim, without prejudice, and gave the lead
plaintiffs until May 4, 2018 to file any amended complaint
attempting to remedy the defects in their claims.
On May 4, 2018, the lead plaintiffs filed a second amended
complaint asserting claims under the federal securities laws
against the Defendants. Like the first amended complaint, the
second amended complaint alleges that the Defendants made material
false and/or misleading statements or omissions relating to the
Phase 2 and 3 trials and efficacy of the product candidate
algenpantucel-L that caused losses to the Company's investors.
The lead plaintiffs do not quantify any alleged damages in the
second amended complaint but, in addition to attorneys' fees and
costs, they sought to recover damages on behalf of themselves and
other persons who purchased or otherwise acquired the Company's
stock during the putative class period of September 17, 2013
through May 9, 2016, inclusive, at allegedly inflated prices and
purportedly suffered financial harm as a result.
The Defendants filed a motion to dismiss the second amended
complaint on July 31, 2018. On February 13, 2019, the Court
dismissed the second amended complaint for failure to state a
claim, with prejudice, and closed the case.
On March 14, 2019, lead plaintiffs filed a notice of appeal.
The briefing on lead plaintiffs' appeal was completed in early July
2019 and oral argument before the Second Circuit Court of Appeals
was held on October 21, 2019.
The Company intends to continue defending the Securities Action
vigorously.
NewLink Genetics Corporation, a late clinical-stage immuno-oncology
company, focuses on discovering and developing novel
immunotherapeutic products for the treatment of patients with
cancer. NewLink Genetics Corporation was founded in 1999 and is
headquartered in Ames, Iowa.
NORRISTOWN AREA SCHOOL: Spanish Teacher Alleges Discrimination
--------------------------------------------------------------
STEPHANIE GOODMAN P.O. BOX 1158 DOYLESTOWN, PA 18901 Plaintiffs v.
NORRISTOWN AREA SCHOOL DISTRICT 401 NORTH WHITE HALL ROAD
NORRISTOWN, PA 19403 Defendant, Case No. 2:20-cv-01682-WB (E.D.
Pa., March 31, 2020) is a civil action brought by the Plaintiff to
seek compensatory, punitive and non-pecuniary damages based on
discrimination on account of race, age and retaliation in
violation of the Civil Rights Act of 1991, the Civil Rights Act of
1964 and 1991, and the Pennsylvania Human Relations Act (PHRA).
According to the complaint, the Defendant intentionally deprived
and retaliated against Plaintiff, a Black/African American citizen,
of the same rights as are enjoyed by White citizens to the
creation, performance, enjoyment, and all benefits and privileges,
of their contractual employment relationship with Defendant.
Goodman is a Spanish Teacher with a bachelor of arts degree,
masters of education degree and completed an English as a Second
Language Leadership Certification program as recently at 2015.
The Plaintiff suffered adverse employment actions such as failure
to hire, failure to promote and demotion on account of her race,
age and retaliation.
Norristown Area School District operates local public primary and
secondary schools within Montgomery County, Pennsylvania. [BN]
The Plaintiff is represented by:
Zakia E. Moore, Esq.
McCain Law, P.C.
1515 Market Street, Suite 1200
Philadelphia, PA 19102
Telephone: (215) 236-1086
Facsimile: (215) 543-3343
Email: zmoore@mccain-law.com
NOVO NORDISK: FWK Holdings Alleges Price-Fixing of Insulin Drugs
----------------------------------------------------------------
FWK Holdings, LLC, individually and on behalf of all others
similarly situated, Plaintiff, v. NOVO NORDISK INC., ELI LILLY AND
COMPANY, SANOFI-AVENTIS U.S., LLC, CVS HEALTH CORPORATION,
CAREMARK RX, LLC, EXPRESS SCRIPTS HOLDING COMPANY, EXPRESS SCRIPTS,
INC., and OPTUM RX, INC., Defendants, Case No. 3:20-cv-03480
(D.N.J., March 31, 2020) alleged that the Defendants unlawfully
colluded to restrain and/or eliminate competition by engaging in an
anticompetitive conspiracy designed to foreclose competition in the
market for analog insulin drugs in the United States, in violation
of Section 1 of the Sherman Act.
The Defendants' misconduct enabled them to overcharge direct
purchasers for analog insulin drugs. The Defendants also engaged in
an overarching scheme to fix the prices of analog insulin drugs for
direct purchasers. Beginning in or about 2009, Defendants together
made successive, lockstep price increases for analog insulin drugs
without valid economic justification. Such price increases occurred
despite the absence of any changes in the Defendants' analog
insulins that would justify higher prices. Faced with impending
expiration of patents covering their analog insulin products and
looming generic entry to the market, Defendants entered
anticompetitive agreements to artificially inflate prices and
maximize profits. Defendants deprived Plaintiff and members of the
Classes of a competitive market for analog insulin drugs.
FWK Holdings, LLC is a limited liability company organized under
the laws of the State of Illinois, with its principal place of
business located in Glen Ellyn.
Novo Nordisk Inc. is a Plainsboro, New Jersey-based pharmaceutical
company.
Eli Lilly and Company is an American pharmaceutical company
headquartered in Indianapolis, Indiana.
Sanofi-Aventis U.S., LLC is a New Jersey-based company that
develops, manufactures, and markets pharmaceutical products.
CVS Health Corporation is an American healthcare company
headquartered in Woonsocket, Rhode Island.
Caremark RX, LLC is the prescription benefit management subsidiary
of CVS Health, headquartered in Woonsocket, Rhode Island.
Express Scripts Holding Company is a pharmacy benefit management
organization based in St. Louis, Missouri.
Express Scripts Inc. is a St. Louis, Missouri-based company that
offers pharmacy benefit management services.
OptumRx, Inc. is a pharmacy care services company based in Irvine,
California. [BN]
The Plaintiff is represented by:
Dianne M. Nast, Esq.
Michael Tarringer, Esq.
NastLaw LLC
1101 Market Street, Suite 2801
Philadelphia, PA 19107
Telephone: (215) 923-9300
Facsimile: (215) 923-9302
Email: dnast@nastlaw.com
mtarringer@nastlaw.com
– and –
Michael L. Roberts, Esq.
Karen S. Halbert, Esq.
ROBERTS LAW FIRM, P.A.
20 Rahling Circle
Little Rock, AR 72223
Telephone: (501) 821-5575
Facsimile: (501) 821-4474
Email: mikeroberts@robertslawfirm.us
KarenHalbert@robertslawfirm.us
– and –
Don Barrett, Esq.
David M. McMullan, Jr., Esq.
BARRETT LAW GROUP, P.A.
P.O. Box 927
404 Court Square
North Lexington, MS 39095-0927
Telephone: (662) 834-9168
Facsimile: (662) 834-2628
Email: donbarrettpa@gmail.com
dmcmullan@barrettlawgroup.com
– and –
Phil Elbert, Esq.
Charles Barrett, Esq.
NEAL & HARWELL, PLC
1201 Demonbreun St.
Suite 1000
Nashville, TN 37203
Telephone: (615) 244-1713
Facsimile: (615) 726-0573
Email: pelbert@nealharwell.com
cbarrett@nealharwell.com
NUVANCE HEALTH: Fails to Defend PII From Data Breach, Gyscek Says
-----------------------------------------------------------------
STEPHEN GYSCEK, individually and on behalf of all others similarly
situated v. NUVANCE HEALTH and HEALTH QUEST SYSTEMS, INC. d/b/a
"HEALTH QUEST", Case No. 7:20-cv-02719-VB (S.D.N.Y., April 1,
2020), alleges that the Defendants failed to implement security
measures sufficient to protect personal identifiable information
from disclosure to hackers or other unauthorized parties in a data
breach, and to timely notify all affected individuals.
The Plaintiff contends that the Defendants failed to store PII in a
reasonably secure and adequately protected manner, contravening
various laws as well as industry standards and Defendants' own
policies. As a result, cybercriminals were able to harvest the
personal information of at least 28,910 of the Defendants'
patients, including their financial information, medical
information, personal information, and/or other protected health
information as defined by the Health Insurance Portability and
Accountability Act of 1996.
The Plaintiff is an individual residing in Staatsburg, New York,
who has been a patient at the Heart Center of Poughkeepsie, New
York, for about 10 years and a patient at Vassar Brothers Hospital
for about 40 years. Both are owned and operated by the Defendants.
The Defendants are healthcare providers and, as such, they are
entrusted with some of the most sensitive and personal information
imaginable.[BN]
The Plaintiff is represented by:
Nicholas A. Migliaccio, Esq.
Jason S. Rathod, Esq.
MIGLIACCIO & RATHOD LLP
412 H Street NE, Ste. 302
Washington, DC 20002
Telephone: (202) 470-3520
E-mail: nmigliaccio@classlawdc.com
jrathod@classlawdc.com
OHIO STATE UNIVERSITY: Does Sue Alleging Civil Rights Violations
----------------------------------------------------------------
A class action lawsuit has been filed against The Ohio State
University. The case is captioned as John Does 85-88 individually
and on behalf of all others similarly situated v. The Ohio State
University, Case No. 2:20-cv-01649-MHW-EPD (S.D. Ohio, Mar 31,
2020).
The case is assigned to the Hon. Judge Michael H. Watson. The
lawsuit demands $10,000 in damages alleging violation of the Civil
Rights Act of 1964.
The Ohio State University is a public research university in
Columbus, Ohio.[BN]
The Plaintiffs are represented by:
Simina Vourlis, Esq.
THE LAW OFFICES OF SIMINA VOURLIS
1689 W. 3rd Ave.
Columbus, OH 43212
Telephone: (614) 487-5900
Facsimile: (614) 487-5901
E-mail: svourlis@vourlislaw.com
- and -
Daniel Richard Karon, Esq.
KARON LLC
700 W. St. Clair Avenue, Suite 200
Cleveland, OH 44113
Telephone: (216) 622-1851
Facsimile: (216) 241-8175
E-mail: dkaron@karonllc.com
- and -
Larkin E. Walsh, Esq.
MIDWEST LAW
5301 West 75th Street
Prairie Village, KS 66208
Telephone: (913) 901-0505
Facsimile: (913) 901-0419
E-mail: lwalsh@midwest-law.com
- and -
Rex A. Sharp, Esq.
Sarah T. Bradshaw, Esq.
5301 West 75th Street
Prairie Village, KS 66208
Telephone: (913) 901-0505
Facsimile: (913) 901-0419
E-mail: rsharp@midwest-law.com
sbradshaw@midwest-law.com
- and -
Stephen J. Estey, Esq.
ESTEY & BOMBERGER LLP
2869 India Street
San Diego, CA 92103
Telephone: (619) 295-0035
Facsimile: (619) 295-0172
E-mail: steve@estey-bomberger.com
ONE PLANET: Court Partly Denies Bid to Dismiss Schley TCPA Suit
---------------------------------------------------------------
In the case, REEVE SCHLEY, Plaintiff, v. ONE PLANET OPS INC, et
al., Defendants, Case No. 20-cv-00203-EMC (N.D. Cal.), Judge Edward
M. Chen of the U.S. District Court for the Northern District of
California mooted in part and denied in part the Defendants' motion
to dismiss.
Mr. Schley has filed a class action against Defendants One Planet
Ops Inc. and Buyerlink, LLC, doing business as contractors.com,
asserting claims for violation of the Telephone Consumer Protection
Act ("TCPA"). Mr. Schley alleges that the Defendants both texted
him and called him in violation of the statute.
Mr. Schley is the subscriber and/or sole user of a cell phone with
the following number: (310) 435-****. Between Aug. 7 and 21, 2019,
the Defendant sent him multiple text messages (at least five). The
text messages were sent from numbers that are dedicated numbers
used for mass texts, not hand delivered messages. Mr. Schley did
not give consent to be contacted via text messages. Mr. Schley
registered his cell phone with the National Do Not Call Registry
several years before the events giving rise to the lawsuit.
Based on these allegations, Mr. Schley asserted the following TCPA
causes of action in his complaint: 1) Violation of 47 U.S.C.
Section 227(b)(1)(A)(iii); 2) Violation of 47 U.S.C. Section 227(c)
and 47 C.F.R. Section 64.1200(c); and 3) Violation of 47 U.S.C.
Section 227(c) and 47 C.F.R. Section 64.1200(d).
The Defendants have asked the Court to take judicial notice that
the cell phone identified in the complaint is one associated with a
business (Seed Furniture, Inc.) such that they cannot be held
liable with respect to these causes of action. In his opposition
brief, Mr. Schley states that he is voluntarily dismissing these
claims for relief -- although not for the reasons articulated by
the Defendants -- and asks that the Court dismiss the claims
without prejudice.
Federal Rule of Civil Procedure 41 provides that a plaintiff may
dismiss an action without a court order by filing: (i) a notice of
dismissal before the opposing party serves either an answer or a
motion for summary judgment; or (ii) a stipulation of dismissal
signed by all parties who have appeared. Unless the notice or
stipulation states otherwise, the dismissal is without prejudice."
Fed. R. Civ. P. 41(a)(1)(B). In light of Mr. Schley's statement in
his opposition brief and Rule 41(a)(1), Judge Chen holds that the
second and third causes of action will be dismissed without
prejudice.
As for the first cause of action, taking into account factors, Mr.
Schley has alleged enough to support a plausible claim of use of an
ATDS in conjunction with the sending of text messages. The fact
that the text messages were sent with a long code, as opposed to a
short code, is not dispositive. The bottom line is that it seems
plausible that an ATDS could have been used to contact contractors
in the Los Angeles area, of which Mr. Schley/Seed Furniture was
one. To the extent Defendants argue that it is just as conceivable
that the text messages were done by hand, or not using an ATDS, the
Ninth Circuit has indicated that equal plausibility means a
plaintiff survives a 12(b)(6) challenge.
Finally, Mr. Schley has alleged more than one phone call from the
Defendants -- about 30 total in a relatively short time span.
Moreover, he has alleged that, in at least two instances (not just
one), he encountered the dead air issue. To the extent the
Defendants argue that the delay in only 6.67% of the calls received
is more likely a result of an inattentive caller than an ATDS, that
argument is speculative and does not negate the opposite inference.
It is plausible that there was an inattentive caller but it is
equally plausible that an ATDS was used -- when the "dead air"
allegations are taken in conjunction with the allegations that Mr.
Schley received about 30 phone calls in just a few months' time.
For the foregoing reasons, Judge Chen denied the motion to dismiss
with respect to the first TCPA cause of action. Because Mr. Schley
has voluntarily dismissed the second and third causes of action
(without prejudice), the motion to dismiss on these claims is moot.
The Order disposes of Docket No. 19.
A full-text copy of the Court's March 18, 2020 Order is available
at https://is.gd/hkpmvs from Leagle.com.
Reeve Schley, individually and on behalf of all others similarly
situated, Plaintiff, represented by Jarrett Lee Ellzey --
firm@hughesellzey.com -- Hughes Ellzey, LLP, pro hac vice & John
Peter Kristensen, Kristensen Weisberg, LLP.
One Planet Ops Inc, a Delaware Corporation & Buyerlink LLC, a
California limited liability company doing business as
Contractors.com, Defendants, represented by Matthew D. Pearson --
mpearson@bakerlaw.com -- Baker & Hostetler LLP.
OPKO HEALTH: Avraham Class Action Ongoing
-----------------------------------------
OPKO Health, Inc. said in its Form 10-K report filed with the U.S.
Securities and Exchange Commission on March 2, 2020, for the fiscal
year ended December 31, 2019, that the company continues to defend
a class action suit in Tel Aviv Israel District Court initiated by
Dalia Avraham.
On or about September 16, 2018, Dalia Avraham filed an Application
for Approval of a Class Action in the Tel Aviv Israel District
Court against the Company and Dr. Frost.
This application was filed by a purported stockholder, both
individually and on behalf of a putative class of the Company's
stockholders. The Avraham Claim alleges a negligent and/or
deliberate act related to the trade of the Company's shares on the
Tel Aviv Stock Exchange ("TASE") which was intended to or which in
fact caused damage to the Company's investors based on the
Company's decision to delist from TASE in April 2018 and its
subsequent decision to continue to be listed on TASE.
The Avraham Claim seeks to declare the action to be a class action
and an estimated NIS 20 million in damages.
OPKO Health said, "We believe that this action is without merit and
the Company intends to vigorously defend itself."
No further updates were provided in the Company's SEC report.
OPKO Health, Inc., a healthcare company, engages in the diagnostics
and pharmaceuticals business in the United States, Ireland, Chile,
Spain, Israel, Mexico, and internationally. OPKO Health, Inc. was
incorporated in 1991 and is headquartered in Miami, Florida.
OPKO HEALTH: Bid to Dismiss Consolidated Class Action Pending
-------------------------------------------------------------
OPKO Health, Inc. said in its Form 10-K report filed with the U.S.
Securities and Exchange Commission on March 2, 2020, for the fiscal
year ended December 31, 2019, that the motion to dismiss filed in
the consolidated Kerznowski and Steinberg class action suit remains
pending.
On September 7, 2018, the Securities and Exchange Commission
("SEC") filed a lawsuit in the Southern District of New York
against a number of individuals and entities, including the Company
and its CEO and Chairman, Phillip Frost.
The SEC Complaint alleged, among other things, that the Company (i)
aided and abetted an illegal "pump and dump" scheme perpetrated by
a number of the Defendants, and (ii) failed to file required
Schedules 13D or 13G with the SEC. On December 27, 2018, the
Company announced that the Company and Dr. Frost entered into
settlement agreements with the SEC, resolving the SEC Complaint.
Pursuant to the settlement, and without admitting or denying any of
the allegations of the Complaint, the Company is enjoined from
violating Section 13(d) of the Exchange Act and paid a $100,000
penalty. Liability under Section 13(d) can be established without
any showing of wrongful intent or negligence. The settlement was
approved by the Court in January 2019.
Under the terms of the settlement between the SEC and Dr. Frost,
and without admitting or denying any of the allegations in the
Complaint, Dr. Frost agreed to injunctions from violations of
Sections 5(a) and (c) and 17(a)(2) of the Securities Act, claims
which may be satisfied by strict liability and negligence,
respectively, and Section 13(d) of the Exchange Act, also a strict
liability claim; to pay approximately $5.5 million in penalty,
disgorgement and pre-judgment interest, which has been paid; and to
be prohibited, with certain exceptions, from trading in penny
stocks.
Following the SEC's announcement of the SEC Complaint, a number of
class actions and derivative suits were filed concerning the
allegations in the SEC Complaint and related matters.
On or about September 12, 2018, Jason Kerznowski, a purported
stockholder, filed a putative class action lawsuit in the United
States District Court for the District of New Jersey against the
Company and certain of its current and former executive officers.
This lawsuit was brought by Kerznowski both individually and on
behalf of a putative class of the Company's stockholders, claiming
that in connection with the facts and circumstances underlying the
allegations in the SEC Complaint, the Company engaged in fraudulent
conduct and made false and misleading statements of material fact
or omitted to state material facts necessary to make the statements
made not misleading.
The Kerznowski Lawsuit sought to declare the action to be a class
action and certify Kerznowski as the class representative, monetary
damages, including prejudgment and post judgment interest, an award
of reasonable attorneys' fees, expert fees, and other costs, and
such other relief as the Court may deem just and proper.
On or about September 14, 2018, Charles Steinberg, a purported
stockholder, filed a putative class action lawsuit in the United
States District Court for the Southern District of Florida against
the Company and certain of its current and former executive
officers.
This lawsuit was brought by Steinberg both individually and on
behalf of a putative class of the Company's stockholders claiming
that in connection with the facts and circumstances underlying the
allegations in the SEC Complaint, the Company engaged in fraudulent
conduct and made false and misleading statements of material fact
or omitted to state material facts necessary to make the statements
made not misleading.
The Steinberg Lawsuit sought to declare the action to be a class
action, monetary damages, including prejudgment and post judgment
interest, an award of reasonable attorneys' fees and expert fees
and other costs, and such additional or different relief as the
interests of law or equity may require.
On February 4, 2019, the United States District Court for the
District of New Jersey appointed the Amitim Funds as lead plaintiff
in the Kerznowski Lawsuit and subsequently transferred the matter
to the United States District Court for the Southern District of
Florida. Amitim Funds was also appointed as lead plaintiff in the
Steinberg Lawsuit.
On May 3, 2019, plaintiffs in each of the Kerznowski Lawsuit and
Steinberg Lawsuit, filed an identical consolidated class action
complaint, and the court consolidated these actions on May 8, 2019.
The Company believes the action is without merit and has filed a
motion to dismiss the consolidated complaint, which is fully
briefed and remains pending.
In addition to the Steinberg and Kerznowski Lawsuits, three other
class action lawsuits relating to the allegations of the SEC
Complaint were filed against the Company, but have been either
administratively stayed and closed, or voluntarily dismissed
without prejudice.
OPKO Health, Inc., a healthcare company, engages in the diagnostics
and pharmaceuticals business in the United States, Ireland, Chile,
Spain, Israel, Mexico, and internationally. OPKO Health, Inc. was
incorporated in 1991 and is headquartered in Miami, Florida.
OPKO HEALTH: Data Security Breach Suits v. BioReference Ongoing
---------------------------------------------------------------
OPKO Health, Inc. said in its Form 10-K report filed with the U.S.
Securities and Exchange Commission on March 2, 2020, for the fiscal
year ended December 31, 2019, that BioReference Laboratories, Inc.
continues to defend two class action suits related to data security
breach.
On June 3, 2019, BioReference reported that Retrieval-Masters
Creditors Bureau, Inc. d/b/a American Medical Collection Agency
("AMCA"), had notified BioReference about a data security incident
involving AMCA (the "AMCA Incident").
AMCA informed BioReference that an unauthorized user had access to
AMCA's system between August 1, 2018 and March 30, 2019. AMCA
advised that AMCA’s affected system may have included patient
name, date of birth, address, phone, date of service, provider, and
balance information, as well as credit card information, bank
account information (but no passwords or security questions) and
email addresses that were provided by the consumer to AMCA.
AMCA has advised BioReference that no Social Security Numbers were
compromised, and BioReference provided no laboratory results or
diagnostic information to AMCA.
BioReference has notified patients and provided notice to the
Office of Civil Rights of the AMCA Incident.
To date, BioReference has been named in at least two class action
lawsuits against AMCA and other defendants in connection with the
AMCA Incident.
In addition, the Office of Inspector General and Office for Civil
Rights ("OCR") of the Department of Health and Human Services, as
well as the attorney generals’ offices from certain states have
contacted BioReference to request additional information relating
to the AMCA Incident.
OPKO Health said, "It is not possible at this time to estimate the
amount of loss or range of loss, if any, that might result from
adverse judgments, settlements, fines, penalties, or other
resolution of these proceedings and investigations based on the
stage of these proceedings and investigations, the absence of
specific allegations as to alleged damages, the uncertainty as to
the certification of a class or classes and the size of any
certified class, if applicable, and/or the lack of resolution of
significant factual and legal issues."
OPKO Health, Inc., a healthcare company, engages in the diagnostics
and pharmaceuticals business in the United States, Ireland, Chile,
Spain, Israel, Mexico, and internationally. OPKO Health, Inc. was
incorporated in 1991 and is headquartered in Miami, Florida.
OPKO HEALTH: Sharon Suit in Tel Aviv Closed Temporarily
-------------------------------------------------------
OPKO Health, Inc. said in its Form 10-K report filed with the U.S.
Securities and Exchange Commission on March 2, 2020, for the fiscal
year ended December 31, 2019, that the Tel Aviv Israel District
Court closed the class action suit initiated by Idan Sharon,
pending resolution of the U.S.-based class actions relating to
allegations in litigation initiated by the U.S. Securities and
Exchange Commission.
On or about September 13, 2018, Idan Sharon filed an Application
for Approval of a Class Action in the Tel Aviv Israel District
Court against the Company and certain of its current and former
executive officers, and certain members of its Board of Directors
(the "Sharon Claim").
This application was filed by a purported stockholder, both
individually and on behalf of a putative class of the Company's
stockholders, claiming that in connection with the facts and
circumstances underlying the allegations in the SEC Complaint, the
Company engaged in fraudulent conduct and made false and misleading
statements of material fact or omitted to state material facts
necessary to make the statements made not misleading.
The Sharon Claim seeks to declare the action to be a class action
and monetary damages.
The court closed this case pending resolution of the U.S.-based
class actions relating to the allegations in the SEC Complaint.
On September 7, 2018, the SEC filed a lawsuit in the Southern
District of New York against a number of individuals and entities,
including the Company and its CEO and Chairman, Phillip Frost. The
SEC Complaint alleged, among other things, that the Company (i)
aided and abetted an illegal "pump and dump" scheme perpetrated by
a number of the Defendants, and (ii) failed to file required
Schedules 13D or 13G with the SEC. On December 27, 2018, the
Company announced that the Company and Dr. Frost entered into
settlement agreements with the SEC, resolving the SEC Complaint.
Pursuant to the settlement, and without admitting or denying any of
the allegations of the Complaint, the Company is enjoined from
violating Section 13(d) of the Exchange Act and paid a $100,000
penalty. Liability under Section 13(d) can be established without
any showing of wrongful intent or negligence. The settlement was
approved by the Court in January 2019.
OPKO Health, Inc., a healthcare company, engages in the diagnostics
and pharmaceuticals business in the United States, Ireland, Chile,
Spain, Israel, Mexico, and internationally. OPKO Health, Inc. was
incorporated in 1991 and is headquartered in Miami, Florida.
OUTLAW LABORATORY: Certification of 3 Classes Sought
----------------------------------------------------
In the class action lawsuit styled as re: OUTLAW LABORATORY, LP
LITIGATION, Case No. 3:18-cv-00840-GPC-BGS (S.D. Cal.), the
Plaintiff will move the Court on May 15, 2020 for an order:
1. certifying these classes:
The Threatened Stores Class:
"all retail entities in the United States that received a
demand letter sent on behalf of Outlaw Laboratory, LP, in
which Outlaw Laboratory threatened litigation over the
entity's sale of 'sexual enhancement products,' and where the
recipient neither paid money to Outlaw Laboratory or its
agents, nor was thereafter named as a defendant in state or
federal litigation brought by Outlaw Laboratory";
The Sued Stores Class:
"all retail entities in the United States that received a
demand letter sent on behalf of Outlaw Laboratory, LP, in
which Outlaw Laboratory threatened litigation over the
entity's sale of 'sexual enhancement products,' and where
the recipient was thereafter named as a defendant in state
or federal litigation brought by Outlaw Laboratory, but
has not paid money to Outlaw Laboratory or its agents to
dismiss the claim"; and
The Payment Class:
"all retail entities in the United States that received a
demand letter sent on behalf of Outlaw Laboratory, LP, in
which Outlaw Laboratory threatened litigation over the
entity's sale of 'sexual enhancement products,' and where the
recipient thereafter paid money to Outlaw Laboratory, Tauler
Smith LLP, or an agent of either to 'settle' the claim."
Excluded from the proposed classes are Outlaw's officers,
directors, managerial employees, and their immediate
families, as well as this Court and the Court's immediate
family members.; and
2. appointing Gaw | Poe LLP as class counsel.
Outlaw is a manufacturer of male dietary supplements.[CC]
Attorneys for Defendants, Counterclaimant, and Third-Party
Plaintiffs are:
Mark Poe, Esq.
Randolph Gaw, Esq.
Samuel Song, Esq.
GAW | POE LLP
4 Embarcadero, Suite 1400
San Francisco, CA 94111
Telephone: (415) 766-7451
Facsimile: (415) 737-0642
E-mail: mpoe@gawpoe.com
rgaw@gawpoe.com
ssong@gawpoe.com
vmeng@gawpoe.com
PENNSYLVANIA: Faces C.Z. Class Suit in Pennsylvania Sup. Ct.
------------------------------------------------------------
A class action lawsuit has been filed against County Commissioners
Association of Pennsylvania, et al. The case is captioned as C.Z.,
A.O., and Z.S.-W., on behalf of all similarly situated individuals
v. County Commissioners Association of Pennsylvania; Pennsylvania
District Attorney's Association; Pennsylvania Department of Human
Services; Department of Corrections; Commonwealth of Pennsylvania;
Pennsylvania Department of Human Services; Tom W. Wolf;
Administrative Office of Pennsylvania Courts; and County
Commissioners Association of Pennsylvania, Case No. 24 EM 2020 (Pa.
Sup., April 1, 2020).
The lawsuit alleges violation of juvenile-related laws.
CCAP is a nonprofit organization that advocates policies it
believes will support county governments across the state of
Pennsylvania.
The Pennsylvania District Attorneys Association was formed in 1912
for the purpose of providing uniformity and efficiency in the
discharge of duties and functions of Pennsylvania's 67 District
Attorneys and their assistants.[BN]
The Petitioners are represented by:
Alan R. Boynton, Jr., Esq.
MCNEES WALLACE & NURICK LLC
Po Box 1166
Harrisburg, PA 17108-1166
Telephone: (717) 237-5352
- and -
Joanna L. Visser, Esq.
Emily Robb, Esq.
Lauren Andrea, Esq.
YOUTH SENTENCING & REENTRY PROJECT
1528 Walnut St., Ste. 515
Philadelphia, PA 19102
Telephone: (267) 703-8047
- and -
Courtney G. Saleski, Esq.
Nathan Paul, Esq.
DLA PIPER LLP (US)
1650 Market St., Ste. 5000
Philadelphia, PA 19103
Telephone: (215) 656-2431
- and -
Karen Usselman Lindell, Esq.
Marsha Levick, Esq.
Jessica Rachel, Esq.
JUVENILE LAW CENTER
1800 JFK Blvd., Ste. 1900b
Philadelphia, PA 19103
Telephone: (215) 625-0551
The Respondents are represented by:
Anne Elizabeth Zerbe, Esq.
Claudia Nadine Shank, Esq.
Matthew John McLees, Esq.
MCNEES WALLACE & NURICK LLC
316 N George St.
York, PA 17406
Telephone: (717) 714-6370
- and -
Tracy Saylor Piatkowski, Esq.
MONTGOMERY COUNTY DISTRICT ATTORNEY'S OFFICE
P.O. Box 311
Norristown, PA 19404-0311
Telephone: (610) 278-3143
- and -
Ronald Eisenberg, Esq.
Joshua D. Shapiro, Esq.
PENNSYLVANIA OFFICE OF ATTORNEY GENERAL
1600 Arch St.
Philadelphia, PA 19103
Telephone: (267) 940-6676
- and -
Serafin, Kenneth J., Esq.
Gregory George Schwab, Esq.
PENNSYLVANIA DEPARTMENT OF HUMAN SERVICES
BUREAU OF HEARINGS AND APPEALS
OFFICE OF GENERAL COUNSEL
625 Forster St., 3rd Fl. West
Harrisburg, PA 17120
Telephone: (717) 783-2800
- and -
Theron Richard Perez, Esq.
DEPARTMENT OF CORRECTIONS
1920 Technology Pkwy.
Mechanicsburg, PA 17050-8507
Telephone: (717) 728-2574
- and -
Jill Marie Graziano, Esq.
PENNSYLVANIA DISTRICT ATTORNEYS ASSOCIATION
2929 N. Front Street
Harrisburg, PA 17110
Telephone: (717) 231-5416
- and -
Michael Daley, Esq.
ADMINISTRATIVE OFFICE OF PENNSYLVANIA COURTS
1515 Market St., Suite 1414
Philadelphia, PA 19102
Telephone: (215) 560-6300
PREFERRED CAREGIVERS: Misclassifies Employees, Badon Claims
-----------------------------------------------------------
ANTHONY BADON, on behalf of himself and all others similarly
situated, Plaintiff v. PREFERRED CAREGIVERS AND SITTERS, LLC D/B/A
"PREFERRED CAREGIVERS & SITTERS, LLC", BARRY WRIGHT and MILLICENT
WRIGHT, Defendants, Case No. 2:20-cv-01065 (E.D. La., March 31,
2020) is a collective action complaint brought against Defendants
for their alleged violation of the Fair Labor Standards Act.
Plaintiff was employed by Defendants to provide home health
services to Defendants' clients in 2019.
According to the complaint, Plaintiff and other similarly situated
caregivers routinely worked more than 40 hours per week for
Defendants. But because Defendants classified them as
"contractors", Defendants did not pay them overtime for all hours
in excess of 40 per week they worked for Defendants.
Barry Wright and Millicent Wright are owners of Preferred
Caregivers and Sitters, LLC and jointly exercised control over
their employees' schedules, rate of pay, how they performed their
jobs and the equipment they used to perform their jobs.
Preferred Caregivers and Sitters, LLC provides home health care and
related services to clients in the Greater New Orleans Area. [BN]
The Plaintiff is represented by:
Jody Forester Jackson, Esq.
Mary Bubbett Jackson, Esq.
JACKSON+JACKSON
201 St. Charles Ave., Ste. 2500
New Orleans, LA 70170
Tel: (504)599-5953
Fax: (888)988-6499
Emails: jjacksoon@jackson-law.net
mjackson@jackson-law.net
R&B CORP: Nixon Sues in E.D. Virginia Alleging Violation of FDCPA
-----------------------------------------------------------------
A class action lawsuit has been filed against R & B Corporation of
Virginia. The case is captioned as Rita Nixon also known as:
Gardner individually and on behalf of all others similarly situated
v. R & B Corporation of Virginia, doing business as Credit Control
Corporation, and John Does 1-25, Case No. 2:20-cv-00171-RBS-LRL
(E.D. Va., April 1, 2020).
The case is assigned to the Hon. Judge Rebecca Beach Smith.
The lawsuit alleges violation of the Fair Debt Collection Practices
Act.
R & B is a debt collection agency.[BN]
The Plaintiff is represented by:
Aryeh Eliezer Stein, Esq.
MERIDIAN LAW, LLC
600 Reisterstown Road, Suite 700
Baltimore, MD 21208
Telephone: (443) 326-6011
Facsimile: (410) 653-1061
E-mail: astein@meridianlawfirm.com
RALPHS GROCERY: Torres Seeks Civil Penalties for Unpaid Wages
-------------------------------------------------------------
Carlos Daniel Torres, an individual, on behalf of herself and all
aggrieved employees v. Ralphs Grocery Company, an Ohio corporation,
Food 4 Less of California, Inc., a California Corporation; Food 4
Less of Southern California, Inc., a Delaware corporation, and The
Kroger Co., an Ohio corporation, and DOES 1-50, inclusive, Case No.
20STCV12856 (Cal. Super., Los Angeles Cty., April 1, 2020), seeks
to recover civil penalties under the Private Attorneys General Act,
California Labor Code, over unpaid wages.
The Plaintiff contends that the Defendants have had a consistent
policy and/or practice of failing to pay for all hours worked,
including overtime hours worked, at the lawful rate; to provide
suitable seating; and to timely pay all wages owed, in violation of
the California Labor Code.
The Plaintiff was employed as an hourly, nonexempt employee of the
Defendants where he worked as a meat clerk.
Ralphs Grocery Company operates a supermarket chain in
California.[BN]
The Plaintiff is represented by:
Nazo Koulloukian, Esq.
KOUL LAW FIRM
3435 Wilshire Blvd., Suite 1710
Los Angeles, CA 90010
Telephone: (213) 761-5484
Facsimile: (818) 561-3938
E-mail: nazo@koullaw.com
- and -
Sahag Majarian, II, Esq.
LAW OFFICES OF SAHAG MAJARIAN II
18250 Ventura Blvd.
Tarzana, CA 91356
Telephone: (818)609-0807
Facsimile: (818)609-0892
E-mail: Sahagii@aol.com
RENT-A-CENTER INC: Agreement in Principle Reached in Russel Suit
----------------------------------------------------------------
Rent-A-Center, Inc. said in its Form 10-K report filed with the
U.S. Securities and Exchange Commission on March 2, 2020, for the
fiscal year ended December 31, 2019, that the company has reached
an agreement in principle to settle the class action suit entitled,
Velma Russell v. Acceptance Now.
This purported class action arising out of calls made by Acceptance
Now to customers' reference(s) was filed on January 29, 2019 in
Massachusetts state court. Specifically, plaintiffs sought to
certify a class representing any references of customers (within
the state of Massachusetts) during the 4 years prior to the filing
date that were contacted by Acceptance Now more frequently during a
12 month period than is permitted by Massachusetts state law.
The plaintiffs were seeking injunctive relief and statutory damages
of $25 per reference which may be tripled to $75 per reference.
References are not parties to our consumer arbitration agreement.
The company operates 12 Acceptance Now locations in Massachusetts.
Mediation took place in September 2019.
The company reached an agreement in principle in December 2019 to
settle this matter. The settlement amount is immaterial and we
recorded a pre-tax charge for such settlement in the fourth quarter
of 2019.
Rent-A-Center, Inc., together with its subsidiaries, leases
household durable goods to customers on a rent-to-own basis. The
company operates through four segments: Core U.S., Acceptance Now,
Mexico, and Franchising. Rent-A-Center, Inc. was founded in 1986
and is headquartered in Plano, Texas.
RESOLUTE ENERGY: Ct. Dismisses Mack Securities Suit
---------------------------------------------------
In the case, STEVEN MACK, Individually and on Behalf of All Others
Similarly Situated, Plaintiffs, v. RESOLUTE ENERGY CORPORATION
n/k/a CIMAREX RESOLUTE LLC, NICHOLAS J. SUTTON, JAMES E. DUFFY,
WILLIAM K. WHITE, GARY L. HULTQUIST, TOD C. BENTON, THOMAS O.
HICKS, JR., ROBERT J. RAYMOND, JANET W. PASQUE, RICHARD F. BETZ,
JOSEPH CITARRELLA, AND WILKIE S. COLYER, JR., Defendants, Civil
Action No. 19-77-RGA (D. Del.), Judge Richard G. Andrews of the
U.S. District Court for the District of Delaware granted the
Defendants' Motion to Dismiss Consolidated Class Action Complaint.
Resolute was an oil and natural gas exploration company that
operated in the southern and western regions of the United States.
On Nov. 19, 2018, Resolute proposed a merger agreement with
Cimarex, another energy company, according to which Resolute
shareholders would have the right to receive a certain amount of
consideration. Resolute filed a preliminary proxy statement on
Jan. 10, 2019.
The Plaintiffs and others filed suit on Jan. 14 and 15, 2019. In
connection with the merger, the Resolute board filed a definitive
proxy statement with the Securities and Exchange Commission oon
Jan. 30, 2019. The board reviewed the proxy, which solicited
Resolute's shareholders to vote in favor of the merger. The proxy
contained fairness opinions from financial advisors Goldman Sachs
and Petrie Partners.
On Feb. 14, 2019, Resolute supplemented the proxy with more
information and disclosures relating to the merger by filing a Form
8-K. Pursuant to the merger, Resolute shareholders had the right
to receive 0.3943 shares of Cimarex common stock, $35 per share in
cash, or a combination of $14 per share in cash and 0.2366 shares
of common stock subject to proration. A majority of Resolute's
shareholders voted to approve the merger, which closed on March 1,
2019.
The class action complaint on behalf of Resolute shareholders,
filed on June 14, 2019, alleges two violations of Section 14(a) of
the Securities Exchange Act, violation of Section 20(a) of the
Securities Exchange Act, and breach of fiduciary duty. The
Plaintiffs allege that the Proxy violated Section 14(a) of the
Securities Exchange Act because: (1) the Proxy contained material
non-GAAP2 financial projections in support of the merger
consideration without complying with Regulation G; (2) the reliance
on and utilization of material unreconciled non-GAAP financial
measures by the Defendants and Resolute's financial advisors and
the omission of "certain Cimarex projections" rendered statements
in the Proxy misleading in violation of SEC Rule 14a-9; and (3) the
fairness opinions by Resolute's financial advisors were misleading
due to, among other things, the inconsistent use of certain
financial measures. The Plaintiffs also allege that the individual
board directors breached their fiduciary duties of loyalty and
care.
The Defendants move to dismiss the complaint pursuant to Federal
Rule of Civil Procedure 12(b)(6).
Judge Andrews finds that the proxy statement and its supplemental
disclosures show that (1) the financial measures were indeed
included in forecasts provided to the financial advisor to render
an opinion materially related to the merger transaction, and (2)
the forecasts were disclosed to comply with Item 1015. See Section
101, Business Combination Transactions. Thus, he finds that the
Defendants' statements in the proxy qualify under the business
combination exemption and they are exempted from compliance with
Regulation G. He will grant the motion to dismiss with respect to
the Defendants' failure to comply with Regulation G.
Even if the omitted information described would have been material
to shareholders in deciding how to vote on the merger, the
Plaintiffs do not meet their burden for pleading that the omissions
rendered the proxy misleading, particularly in light of the other
information that was presented in the proxy, rules Judge Andrews.
Because the Plaintiffs have not shown that the complained-of
figures are material or that the entire recommendation has been
rendered materially misleading as a result of the identified
omissions, the Judge does not find that the failure to include GAAP
financial measures, GAAP reconciliations, the line-items used to
calculate the financial projections, or the unlevered free cash
flow information rendered the proxy materially misleading.
Consequently, he will grant the Defendants' motion to dismiss with
respect to the proxy statement.
The Plaintiffs state in their complaint that the "importance of
providing sufficient information to shareholders" is "axiomatic."
While it may be true, Judge Andrews does not find that axioms help.
The Plaintiffs have not pleaded with sufficient specificity that
the Defendants' alleged failures to provide the information
described rendered the proxy statement materially misleading in
violation of Section 14(a) and Rule 14a-9. The proxy includes 18
pages summarizing the financial analyses provided by the financial
advisors. The proxy also appends the fairness opinions of both
advisors to the proxy, and the Form 8-K provides additional
supplements to the disclosure concerning the valuation analyses.
The Judge agrees with the Defendants that the proxy and its
supplemental disclosures provide at least a "fair summary" of the
financial analyses conducted by the advisors. Thus, he will grant
the Defendants' motion to dismiss as to the fairness opinions.
As for loss causation, the securities statutes, including Section
14(a) of the Exchange Act, do not exist to "provide investors with
broad insurance against market losses," but seek to maintain public
confidence in the marketplace through good corporate governance.
Allowing a plaintiff to forgo giving any indication of the economic
loss and proximate cause would bring about the very harm the
securities statutes seek to avoid," namely, the abusive practice of
filing lawsuits with only a "faint hope" that discovery might lead
to some plausible cause of action.
Inasmuch as the Plaintiffs have failed to demonstrate that the
proxy contained materially misleading representations or omissions
in violation of Rule 14a-9 and that these misrepresentations or
omissions caused economic loss to the shareholders, Judge Andrews
need not reach the issue of whether transaction causation has been
sufficiently pleaded.
A claim for controlling person liability under Section 20(a) must
be based upon a primary violation of the securities law. Because
the Plaintiffs do not adequately plead a Section 14(a) violation,
the Judge holds that the Plaintiffs' Section 20(a) claim
necessarily fails.
Finally, as he has dismissed the Plaintiffs' federal claims, Judge
Andrews will decline to exercise supplemental jurisdiction over the
Plaintiffs' claim for breach of fiduciary duty under Delaware law.
For the reasons he stated, Judge Andrews dismissed the Plaintiffs'
Section 14(a) and Section 20(a) claims, with leave to amend. He
dismissed their claim of breach of fiduciary duty. An accompanying
order will be entered.
A full-text copy of the Court's March 18, 2020 Memorandum Opinion
is available at https://is.gd/VNjPT2 from Leagle.com.
Steven Mack, Individually and on Behalf of All Others Similarly
Situated & William A. Langdon, Jr., Lead Plaintiff, Plaintiffs,
represented by Michael D. Van Gorder -- mvangorder@faruqilaw.com --
Faruqi & Faruqi, LLP.
George Assad & Eddy Edge, Plaintiffs, represented by Brian D. Long,
Rigrodsky & Long, P.A. & Gina M. Serra, Rigrodsky & Long, P.A.
Resolute Energy Corporation, Nicholas J. Sutton, James E. Duffy,
William K. White, Gary L. Hultquist, Tod C. Benton, Thomas O.
Hicks, Jr., Robert J. Raymond, Janet W. Pasque, Richard F. Betz,
Joseph Citarrella & Wilkie S. Colyer, Jr., Defendants, represented
by David John Teklits -- dteklits@mnat.com -- Morris, Nichols,
Arsht & Tunnell LLP & Thomas Parker Will -- twill@mnat.com --
Morris, Nichols, Arsht & Tunnell LLP.
RUTTER'S INC: Johnson Sues Over Data Security Breach
----------------------------------------------------
KATHLEEN JOHNSON, on behalf of herself and all others similarly
situated, Plaintiff, v. RUTTER'S, INC. Defendant, Case No.
1:20-cv-00516-YK (M.D. Pa., March 31, 2020) arises out of the data
security breach of Defendant's point-of-sale ("POS") devices from
August 30, 2018 through May 29, 2019, during which time,
unauthorized third parties were able to access minimum payment card
numbers, expiration dates, security codes, and customers' names of
Defendant's customers, including Plaintiff and Class members.
Plaintiff and Class members are Defendant's customers who purchased
goods and services from Defendant with their payment cards and with
the reasonable expectation that their payment card data would be
safeguarded.
Plaintiff and Class members have been exposed to a heightened and
imminent risk of fraud and identity theft. Class members must now
and in the future closely monitor their financial accounts to guard
against fraud which is a burdensome and time-consuming process.
Rutter's Inc. operates approximately 72 convenience stores in
Pennsylvania, West Virginia, and Maryland, many of which also have
gas pumps. [BN]
The Plaintiff is represented by:
Charles E. Schaffer, Esq.
Frederick S. Longer, Esq.
LEVIN SEDRAN & BERMAN LLP
510 Walnut Street, Suite 500
Philadelphia, PA 19106
Telephone: (215) 592-1500
Facsimile: (215) 592-4663
Email: cschaffer@lfsblaw.com
flonger@lfsblaw.com
– and -
Troy N. Giatras, Esq.
THE GIATRAS LAW FIRM, PLLC
118 Capitol Street, Suite 400
Charleston, WV 25301
Telephone: (304) 343-2900
Facsimile: (304) 343-2942
Email: troy@thewvlawfirm.com
SAC WIRELESS: Smith Sues Over Failure to Pay Overtime Wages
-----------------------------------------------------------
Donnell Smith, on Behalf of Himself and on Behalf of All Others
Similarly Situated v. SAC WIRELESS, LLC, Case No.
5:20-cv-10932-LVP-RSW (E.D. Mich., April 14, 2020), alleges that
the Defendant violated the Fair Labor Standards Act, which requires
non-exempt employees to be compensated for all hours in excess of
40 in a workweek at one and one-half times their regular rates of
pay.
According to the complaint, the Defendant required the Plaintiff to
work more than forty hours in a workweek without overtime
compensation. The Defendant misclassified the Plaintiff as an
independent contractor instead of as employees. By misclassifying
them as independent contractors, the Defendant illegally denied the
Plaintiff and the proposed Class Members compensation at time and
one half their regular rates of pay for all hours worked over 40 in
a workweek.
The Plaintiff performed work for the Defendant as a field
technician from August 2017 to July 2018 in Michigan.
The Defendant is a telecommunications company that helps design,
build, and upgrade cellular networks.[BN]
The Plaintiff is represented by:
Don J. Foty, Esq.
HODGES & FOTY, L.L.P.
4409 Montrose Blvd., Ste. 200
Houston, TX 77006
Phone: (713) 523-0001
Facsimile: (713) 523-1116
Email: Dfoty@hftrialfirm.com
- and -
Anthony J. Lazzaro, Esq.
THE LAZZARO LAW FIRM, LLC
The Heritage Bldg., Suite 250
920 Rockefeller Building
614 W. Superior Avenue
Cleveland, OH 44113
Phone: 216-696-5000
Facsimile: 216-696-7005
Email: anthony@lazzarolawfirm.com
- and -
Jennifer L. McManus, Esq.
FAGAN MCMANUS, P.C.
25892 Woodward Avenue
Royal Oak, MI 48067-0910
Phone: 248) 542-6300
Fax: (248) 542-6301
Email: jmcmanus@faganlawpc.com
SAFEGUARD PROPERTIES: Misclassifies Employees, Lian Suit Claims
---------------------------------------------------------------
James Lian, on Behalf of Himself and on Behalf of All Others
Similarly Situated v. SAFEGUARD PROPERTIES MANAGEMENT, LLC, Case
No. 8:20-cv-00736 (C.D. Cal., April 14, 2020), seeks to recover
damages under the Fair Labor Standards Act and California Labor
Code arising from the Defendant's misclassification of its
employees.
According to the complaint, the Defendant misclassified the
Plaintiff as an independent contractor instead of as an employee.
As a result of this misclassification, the Defendant has unlawfully
required Plaintiff to pay business expenses (including but not
limited to the cost of maintaining his vehicles, gas, insurance,
phone and data expenses, and other costs). The Defendant has also
failed to guarantee and pay the Plaintiff the minimum wage for all
hours worked and has failed to pay overtime premiums for hours
worked in excess of eight hours per day or forty hours per week, in
violation of California Labor Code and the FLSA.
The Plaintiff worked for the Defendant as a Field Inspector from
June 2016 to July 2017.
The Defendant is a company that provides various home and property
inspections.[BN]
The Plaintiff is represented by:
Matthew S. Parmet, Esq.
PARMET PC
340 S. Lemon Ave., #1228
Walnut, CA 91789
Phone: 713 999 5228
Fax: 713 999 1187
Email: matt@parmet.law
- and –
Jane M. Braugh, Esq.
PARMET PC
490 S. Fair Oaks Ave.
Pasadena, CA 91105
Phone: 713-999-5228
Fax: 713-999-1187
Email: jane@parmet.law
- and -
Don J. Foty, Esq.
HODGES & FOTY, L.L.P.
4409 Montrose Blvd., Ste. 200
Houston, TX 77006
Phone: (713) 523-0001
Facsimile: (713) 523-1116
Email: Dfoty@hftrialfirm.com
SALT & STRAW: Hayes Labor Class Suit Removed to C.D. California
---------------------------------------------------------------
The class action lawsuit captioned as RASHON HAYES, individually,
and on behalf of other members of the general public similarly
situated v. SALT & STRAW, LLC, an unknown business entity; and DOES
1 through 100, inclusive, Case No. 20STCV06626 (Filed Feb. 20,
2020), was removed from the Superior Court of the State of
California for the County of Los Angeles to the U.S. District Court
for the Central District of California on April 1, 2020.
The Central District of California Court Clerk assigned Case No.
2:20-cv-03063 to the proceeding.
The complaint asserts claims against the Defendants for unpaid
overtime, unpaid meal and rest period premiums, and unpaid minimum
wages in violation of the California Labor Code.
Salt & Straw is an ice cream company.[BN]
The Defendant is represented by:
John Haubrich, Jr., Esq.
Vi N. Applen, Esq.
Armine Antonyan, Esq.
LEWIS BRISBOIS BISGAARD & SMITH LLP
633 West 5th Street, Suite 4000
Los Angeles, CA 90071
Telephone: 213 250 1800
Facsimile: 213 250 7900
E-Mail: John.Haubrich@lewisbrisbois.com
Vi.Applen@lewisbrisbois.com
Armine.Antonyan@lewisbrisbois.com
SINCLAIR BROADCAST: Bid to Nix Illinois Consolidated Suit Pending
-----------------------------------------------------------------
Sinclair Broadcast Group, Inc. said in its Form 10-K report filed
with the U.S. Securities and Exchange Commission on March 2, 2020,
for the fiscal year ended December 31, 2019, that the motion
seeking dismissal of a consolidated class action suit before the
Northern District of Illinois court remains is pending.
The Company is aware of 22 putative class action lawsuits that were
filed against the Company following published reports of the DOJ
investigation into the exchange of pacing data within the industry.
On October 3, 2018, these lawsuits were consolidated in the
Northern District of Illinois.
The consolidated action alleges that the Company and thirteen other
broadcasters conspired to fix prices for commercials to be aired on
broadcast television stations throughout the United States and
engaged in unlawful information sharing, in violation of the
Sherman Antitrust Act.
The consolidated action seeks damages, attorneys' fees, costs and
interest, as well as injunctions against adopting practices or
plans that would restrain competition in the ways the plaintiffs
have alleged.
Defendants in this action filed a motion to dismiss the
consolidated action, and that motion is now fully briefed.
The Company believes the lawsuits are without merit and intends to
vigorously defend itself against all such claims.
Sinclair Broadcast Group, Inc. operates as a television
broadcasting company in the United States. It owns or provides
various programming, operating, sales, and other non-programming
operating services to television stations. The company was founded
in 1986 and is headquartered in Hunt Valley, Maryland.
SITEL OPERATING: Court Grants Bid for Conditional Certification
---------------------------------------------------------------
In the class action lawsuit styled as MARQUISE FOSTER, individually
and on behalf of all others similarly situated v. SITEL OPERATING
CORPORATION, Case No. 3:19-cv-00148 (M.D. Tenn.), the Hon. Judge
Eli Richardson entered an order:
1. granting the Plaintiff's motion for conditional
certification;
2. directing the Parties to meet and confer regarding the
substance of the notice and the proposed notice and
consent protocol; and
3. directing the parties to submit a joint report to the
Court no later than 14 days after the date of this Order.
The Court said, "If the parties cannot agree on a protocol, or the
language of the notice, then by that same date (1) the Plaintiff
shall file her proposed notice language and notice and consent
protocol, and (2) the Defendant shall separately file specific
objections as to points of disagreement. If this occurs, the
Plaintiff may respond within five days. The Court will consider
extending this time frame if requested, especially in light of the
current COVID-19 pandemic. Additionally, the Court will defer the
deadline by which Defendant is required to turn over information
regarding the putative class members until all notice protocol
issues are resolved."
Sitel is a privately owned contact center company headquartered in
Miami, Florida. It provides outsourced sales, technical support,
customer service, and other business processes for large
companies.[CC]
STATE FARM: Court Certifies Rule 23 Class in Bally Suit
-------------------------------------------------------
In the class action lawsuit styled as ELIZABETH A. BALLY v. STATE
FARM LIFE INSURANCE COMPANY, Case No. 3:18-cv-04954-CRB (N.D.
Cal.), the Hon. Judge Charles R. Breyer entered an order:
1. certifying a class under Fed.R.Civ.P. 23(b)(3) comprising
of:
"all persons who own or owned a universal life insurance
policy issued by State Farm on Form 94030 in the State of
California whose policy was in-force on or after January
1, 2002 and who were subject to at least one monthly
deduction, excepting the Excluded Persons"; and
2. denying Defendant's motion to strike.
State Farm operates as an insurance company.[CC]
STELLAR COMMUNITIES: Greenberg Sues Over Unwanted Marketing Texts
-----------------------------------------------------------------
CHARLES GREENBERG, individually and on behalf of all others
similarly situated v. STELLAR COMMUNITIES LLC, Case No.
CACE-20-005720 (Fla. Cir., Broward Cty., March 31, 2020), alleges
that the Defendant promotes and markets its merchandise, in part,
by sending unsolicited text messages to wireless phone users, in
violation of the Telephone Consumer Protection Act.
The Plaintiff alleges that the Defendant engages in unsolicited
marketing with no regard for privacy rights of the recipients of
those messages. He adds that the Defendant caused thousands of
unsolicited text messages to be sent to his and Class Members
telephones, causing them injuries, including invasion of their
privacy, aggravation, annoyance, intrusion on seclusion, trespass,
and conversion.
The Defendant is a Florida real estate development company.[BN]
The Plaintiff is represented by:
Andrew J. Shamis, Esq.
Garrett O. Berg, Esq.
SBAMIS & GENTILE, P.A.
14 NE 1st Avenue, Suite 705
Miami, FL 33132
Telephone: 305 479-2299
E-mail: ashamis@shamisgentile.com
gberg@shamisgentile.com
- and -
Scott Edelsberg, Esq.
EDELSBERG LAW, PA
20900 NE 30th Ave., Suite 417
Aventura, FL 33 180
Telephone: 305 975-3320
E-mail: scott@edelsberglaw.com
T.S. DUDLEY LAND: Fails to Pay Overtime to Agents, Penska Claims
----------------------------------------------------------------
JOE PENSKA, Individually and For Others Similarly Situated,
Plaintiff, v. T.S. DUDLEY LAND COMPANY, INC., Defendant, Case No.
2:20-CV-435 (W.D. Pa., March 31, 2020) is an action brought by the
Plaintiff to recover unpaid overtime wages and other damages from
Defendant under the Fair Labor Standards Act (FLSA) and the
Pennsylvania Minimum Wage Act (PMWA).
Penska worked for Dudley as a Senior Land Agent from approximately
August 8, 2016 to January 15, 2018.
T.S. Dudley Land Company, Inc. is an Oklahoma-based land service
company. [BN]
The Plaintiff is represented by:
Michael A. Josephson, Esq.
Andrew W. Dunlap, Esq.
Taylor A. Jones, Esq.
JOSEPHSON DUNLAP
11 Greenway Plaza, Suite 3050
Houston, TX 77046
Telephone: 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
Telephone: 713-877-8788
Facsimile: 713-877-8065
Email: 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
Email: josh@goodrichandgeist.com
TECHNIPFMC PLC: Continues to Defend Prause Securities Class Suit
----------------------------------------------------------------
TechnipFMC plc said in its Form 10-K report filed with the U.S.
Securities and Exchange Commission on March 3, 2020, for the fiscal
year ended December 31, 2019, that the company continues to defend
a class action suit entitled, Prause v. TechnipFMC, et al., No.
4:17-cv-02368 (S.D. Texas).
A purported shareholder class action filed in 2017 and amended in
January 2018 and captioned Prause v. TechnipFMC, et al., No.
4:17-cv-02368 (S.D. Texas) is pending in the U.S. District Court
for the Southern District of Texas against the Company and certain
current and former officers and employees of the Company.
The suit alleged violations of the federal securities laws in
connection with the Company's restatement of its first quarter 2017
financial results and a material weakness in its internal control
over financial reporting announced on July 24, 2017.
On January 18, 2019, the District Court dismissed claims under
Section 10(b) and 20(a) of the Securities Exchange Act of 1934, as
amended, and Section 15 of the Securities Act of 1933, as amended.
A remaining claim for alleged violation of Section 11 of the
Securities Act in connection with the reporting of certain
financial results in the Company's Form S-4 Registration Statement
filed in 2016 is pending and seeks unspecified damages.
TechnipFMC said, "The Company is vigorously contesting the
litigation and cannot predict its duration or outcome."
No further updates were provided in the Company's SEC report.
TechnipFMC plc engages in the oil and gas projects, technologies,
and systems and services businesses. It operates through three
segments: Subsea, Onshore/Offshore, and Surface Technologies. The
company was formerly known as Technip SA and changed its name to
TechnipFMC plc in January 2017. TechnipFMC plc was founded in 1958
and is headquartered in London, the United Kingdom.
TEP ROCKY: 10th Cir. Affirms Sefcovic Suit Settlement Approval
--------------------------------------------------------------
In the case, ELNA SEFCOVIC, LLC; WHITE RIVER ROYALTIES, LLC; JUHAN,
LP; ROY ROYALTY, INC., individually and on behalf of all others
similarly situated, Plaintiffs-Appellees, v. TEP ROCKY MOUNTAIN,
LLC, Defendant-Appellee. CHARLES DEAN GONZALES; SUSANNAH GONZALES;
TED L. VAUGHAN; HILDA VAUGHAN, Objectors-Appellants, IVO LINDAUER;
SIDNEY LINDAUER; RUTH LINDAUER; DIAMOND MINERALS, Intervenors, and
THE LAW OFFICES OF GEORGE A. BARTON, PC, Movant-Appellee, Case No.
19-1120 (10th Cir.), Judge Carolyn B. McHugh of the U.S. Court of
Appeals for the Tenth Circuit affirmed the district court's
approval of a class settlement agreement over the objections of
four class members.
Appellee-Defendant TEP operates wells that produce natural gas in
Colorado. These wells are subject to various leases or royalty
agreements under which the owners of such instruments receive a
share of profits from the sale of natural gas.
In 2006, a class of plaintiffs filed suit ("Lindauer litigation")
in Colorado state court, alleging that TEP had underpaid royalties
on various royalty instruments. In 2008, TEP and the Lindauer
class entered into a settlement agreement ("Lindauer SA")
purporting to resolve all class claims relating to past calculation
of royalties and to establish certain rules to govern future
royalty payments. The Lindauer SA categorized members of the class
into 13 separate categories based on the specific terms of their
royalty instruments, and set forth different royalty calculation
methods for each category.
Approximately eight years passed, seemingly free of incident. But
on July 18, 2017, Elna Sefcovic, LLC, White River Royalties, LLC,
Juhan, LP, and Roy Royalty, Inc., individually and on behalf of a
subset of royalty owners who were party to the Lindauer SA
("Sefcovic class"), initiated the action against TEP in Colorado
state court, alleging that TEP had calculated and paid royalties in
a manner inconsistent with the Lindauer SA and contrary to the
underlying royalty agreements. TEP removed the case to federal
court on August 17, 2017, and subsequently asserted a counterclaim
against the Sefcovic class for an offset of ad valorem taxes owing
to any repayment of royalties by TEP. The parties engaged in
discovery and ultimately reached a proposed class settlement
("Sefcovic SA").
The Sefcovic SA creates four subclasses composed of four of the 13
categories created by the Lindauer SA. These subclasses sort class
members according to the rights their royalty instruments grant TEP
with respect to deductions from royalty payments. The Lindauer
categories that comprise the Sefcovic subclasses are categories
two, three, five, and eleven. Category two agreements allow
"deduction of transporting gas from the mouth of the well to the
point of sale, or customary transportation costs, or all
transportation charges." Category three agreements allow deduction
of third party transportation costs from the mouth of the well to
the point of sale. Category five agreements calculate royalty
payments based on, for example, market value at the well, proceeds
at the well, market value, or proceeds. And category eleven
agreements calculate royalty payments based on gross proceeds.
The Sefcovic subclasses, in turn, are composed as follows.
Subclass 1 comprises owners of category two and category three
agreements. Subclass 2 comprises owners of category five
agreements. Su bclass 3 comprises owners of category eleven
agreements. And Subclass 4 comprises owners with agreements that
were categorized as either five or eleven at the time of the
Lindauer SA, but were not currently identified by TEP as
exclusively category five or category eleven agreements. The
following table illustrates the relationship between the Sefcovic
subclasses and the Lindauer categories.
The Sefcovic SA allocates settlement payments by subclass: Subclass
1 receives $454,845; Subclass 2 receives $5,787,732; Subclass 3
receives $1,157,145; and Subclass 4 receives $2,625,587. The
settlement payment for Subclass 1 is the equivalent of (a) 50% of
all processing costs deducted from their payments since July 2016,
and (b) over 40% of all fuel costs deducted from their payments
since July 2011.
On Aug. 16, 2018, the district court issued an order preliminarily
approving the settlement and permitting notice to be mailed to the
Sefcovic class members. On Nov. 6, 2018, appellants Charles
Gonzales, Susannah Gonzales, Ted Vaughn, and Hilda Vaughn
("Objectors") filed various objections to approval of the proposed
Sefcovic SA, including that the proposed settlement sacrificed the
interests of certain class members, that the notice to class
members was insufficient, and that the settlement's release of
claims was overly broad.
The Objectors each own royalty instruments falling in category two
of the Lindauer SA and are therefore members of Subclass 1, as
defined by the Sefcovic SA. The Lindauer SA treated category two
royalty instruments differently than other categories. Although
the Lindauer SA provided compensation to category two and category
three owners for disputed past deductions, it did not clarify which
deductions would be permitted prospectively under category two and
category three leases. Instead, the Lindauer SA left the issue
unresolved. The Sefcovic SA resolves the dispute in TEP's favor,
declaring that TEP is entitled to deduct from Subclass 1 members a
proportionate share of those members' gathering and fuel costs.
On Feb. 20, 2019, the court held a final fairness hearing on the
proposed Sefcovic settlement. It heard extensive testimony from
the class members, the potential class members who opted out of the
settlement, accounting experts, and the Objectors' counsel.
Relevant in the case, the court also heard testimony from Susan
Jerman, the owner of Subclass 1 representative White River
Royalties, LLC.
Ms. Jerman, who has worked in the oil and gas industry for forty
years, testified that the deduction allowance provision in her
category two agreement was weak as compared to the instruments in
other subclasses, and thus, she believed the Sefcovic SA was "a
fair settlement." Having read and considered all submissions in
connection with the Sefcovic SA, the district court approved the
settlement and incorporated its terms into the court's final
order.
The timely appeal followed.
The Objectors assert on appeal that (1) the settlement is not fair;
(2) Subclass 1 representatives did not adequately represent the
rights of absent Subclass 1 members; (3) notice of the class
settlement was inadequate; and (4) the settlement agreement's
release of claims is too broad.
The Tenth Circuit analyzes each matter in turn and concludes that
(1) the district court did not exceed its discretion in deeming the
settlement fair; (2) Objectors did not preserve their challenge to
the adequacy of Subclass 1 representatives; (3) notice of the
proposed settlement was adequate; and (4) the released claims share
a factual predicate with the claims asserted in the complaint.
As to the first factor, the district court found, and Objectors do
not directly dispute, that the settlement agreement was the product
of good faith arm's length negotiations between the Parties who are
represented by very experienced and capable counsel. But the
Objectors make no specific assertion on appeal that the settlement
was not reached through a fair and honest negotiation process. The
Tenth Circuit therefore sees no error in the district court's
conclusion that it was.
With respect to the second Tennille factor, the Tenth Circuit
easily concludes that serious legal and factual questions placed in
doubt the outcome of litigation about the deductions TEP could take
from royalty payments made to Subclass 1. Setting aside the time,
expense, and delayed recovery attendant to more litigation,
Subclass 1 members faced a legitimate risk of recovering none of
the fuel repayments they enjoy under the Sefcovic SA. And even if
they secured those repayments, the victory could have been
meaningless if it was combined with an adverse ruling on TEP's
counterclaim seeking an offset of ad valorem tax liability
allegedly triggered by such repayments. By agreement of the
parties, TEP's counterclaim was dismissed by the district court's
order approving the Sefcovic SA.
The district court received conflicting testimony about an issue
that was not then central to the proceeding. Mr. Simpson explained
his methodology such that his calculations could be understood,
verified, and replicated. In contrast, the Objectors offered a
theory of Subclass 1 liability under paragraph 9.b based on
speculation and containing gaps in analysis that make it impossible
to assess the accuracy of the calculation. As a result, the Tenth
Circuit cannot conclude the district court abused its discretion by
approving a settlement agreement containing the recoupment
provision.
Finally, the fourth Tennille factor asks whether the parties
"believed the settlement was fair and reasonable." As the district
court observed, Subclass 1 members were aware of uncertainties in
their royalty agreements under the Lindauer SA and believed the
Sefcovic SA in their best interests. Indeed, the Appellees assert,
and the Objectors do not dispute, that of 607 class members, only
the four Objectors in the case challenged the reasonableness of the
Sefcovic SA.
The Objectors next assert a variety of arguments in support of
their contention that Subclass 1 representatives did not adequately
represent the interests of absent Subclass 1 members. Because
Objectors failed to raise this issue in the district court despite
ample opportunity to do so, the Tenth Circuit will not consider it
on appeal.
The Objectors may not use the district court's one-sentence finding
that class representatives were adequate to assert arguments on
appeal that were never presented to the district court. Nor can
they rely on a fleeting reference to "and/or inadequate
representation" in a portion of a brief challenging the scope of
the settlement's release of claims. Nothing in the Objectors'
written submissions or argument would have put the district court
on notice that it was being presented with substantive arguments
challenging the adequacy of representation. The Objectors
arguments are therefore waived, rules the Tenth Circuit.
Because the notice satisfied the requirements of Rule 23 and the
constitutional demands of due process, the Tenth Circuit rejects
the Objectors' contention that the class settlement notice was
deficient.
Finally, the Objectors argue the Sefcovic SA contains an overly
broad release. In short, the Sefcovic complaint alleged an array
of errors in the calculation and payment of royalties to the
Sefcovic class based on the sale of natural gas and similar
products, and this is precisely what the release purports to cover.
The Objectors recite a "vast universe" of claims they believe
would be covered by the subject release. It is doubtful that all
such claims would be encompassed within the release, but to the
extent they are, the Tenth Circuit concludes they share a factual
predicate with the matters alleged in the complaint. She therefore
sees no error in the district court's approval of the release.
For the reasons she articulated, the Tenth Circuit affirms and
holds that the district court did not abuse its discretion in
approving the Sefcovic SA.
A full-text copy of the Tenth Circuit's March 18, 2020 Order &
Judgment is available at https://is.gd/GcgUGs from Leagle.com.
TEP ROCKY: Dismissal of Bid to Intervene in Sefcovic Deal Upheld
----------------------------------------------------------------
In the case, ELNA SEFCOVIC, LLC; WHITE RIVER ROYALTIES, LLC; JUHAN,
LP; ROY ROYALTY, INC., individually and on behalf of all others
similarly situated, Plaintiffs-Appellees, v. TEP ROCKY MOUNTAIN,
LLC, Defendant-Appellee. CHARLES DEAN GONZALES; SUSANNAH GONZALES;
TED L. VAUGHAN; HILDA VAUGHAN, Objectors, IVO LINDAUER; SIDNEY
LINDAUER; RUTH LINDAUER; DIAMOND MINERALS, Intervenors-Appellants,
and THE LAW OFFICES OF GEORGE A. BARTON, PC, Movant-Appellee, Case
No. 19-1120 (10th Cir.), Judge Carolyn B. McHugh of the U.S. Court
of Appeals for the Tenth Circuit affirmed the district court's
order dismissing the Lindauers' motion to intervene, approving the
Sefcovic settlement agreement.
The appeal arises out of a class action contract dispute. The
Appellants intervened in the district court, seeking to dismiss the
action for lack of federal subject matter jurisdiction. Through
two separate motions to dismiss, the briefing from both parties
confused the bounds of federal subject matter jurisdiction and
conflated that concept with the doctrines of abstention and comity,
and with matters of venue and forum. Despite the misdirection, the
district court properly exercised jurisdiction and rebuffed the
Appellants' attempts to unwind nearly 18 months of class action
litigation.
Appellee-Defendant TEP operates wells that produce natural gas in
Colorado. These wells are subject to various leases or royalty
agreements under which the owners of such instruments receive a
share of profits from the sale of natural gas.
Appellant-Intervenors Ivo Lindauer, Sidney Lindauer, Ruther
Lindauer, and Diamond Minerals LLC ("Intervenors"), are the
representatives for a class of royalty owners who filed suit in
2006 in Colorado state court, alleging that TEP had underpaid
royalties on various leases and royalty agreements. In 2008, TEP
and the Lindauer class entered into a settlement agreement
purporting to "resolve all class claims relating to past
calculation of royalties" and to "establish certain rules to govern
future royalty" payments.
The Lindauer SA declared that the state court would retain
"continuing jurisdiction" to enforce provisions of the settlement
related to "the description of past and future royalty
methodologies." The state court also issued a judgment certifying
the class and approving the Lindauer SA.
Approximately eight years passed, seemingly free of incident. But
on July 18, 2017, a subset of the Lindauer class ("Sefcovic class")
initiated the action against TEP in Colorado state court, alleging
that TEP had calculated and paid royalties in a manner inconsistent
with the Lindauer SA and contrary to the underlying royalty
agreements. TEP removed the case to federal court on August 17,
2017. The parties engaged in discovery and ultimately reached a
proposed class settlement. One year later, on Aug. 16, 2018, the
district court2 issued an order preliminarily approving the
settlement and permitting the notice to be mailed to the Sefcovic
class members.
Less than a month later, on Sept. 14, 2018, the Lindauers filed a
"Motion to Enforce Court Order and Settlement Agreement" in
Garfield County District Court -- the Colorado state court that had
entered the stipulated judgment in the Lindauer litigation. That
motion made no mention of the federal action alleging breaches of
the Lindauer SA -- initiated fourteen months prior and having
reached preliminary approval of a class settlement agreement. The
state court initially ordered TEP to show cause why it should not
be held in contempt for breaching the terms of the Lindauer SA but
subsequently stayed the proceedings to "await the federal district
court's ruling on pending motions.
On Sept. 28, 2018, the Lindauers filed a motion to intervene in the
federal district court proceeding. Before the district court ruled
on the motion to intervene, the Lindauers filed a motion to
dismiss, arguing the court lacked subject matter jurisdiction based
on the stipulated judgment's clause retaining "continuing
jurisdiction" in the state court. The district court then
dismissed the action without prejudice based on its independent
assessment of subject matter jurisdiction and largely because of
the state court's retention of jurisdiction over the Lindauer SA.
It therefore dismissed the Lindauers' motion to intervene as moot
and vacated the fairness hearing on the proposed Sefcovic SA.
TEP filed a motion to reconsider, arguing the district court's
jurisdiction was proper despite the state court's retention of
jurisdiction. The Lindauers filed a renewed motion to intervene,
which the district court granted, and a renewed motion to dismiss,
arguing again that the district court lacked subject matter
jurisdiction and/or should have abstained from presiding over the
case under Younger or Colorado River abstention.
The district court granted TEP's motion to reconsider and
reinstated the case on Jan. 23, 2019. In doing so, it clarified
that in its original order it believed dismissal would be
appropriate here under principles of comity and wise judicial
administration akin to the doctrine set forth in Colorado River.
But because this doctrine is non-jurisdictional and thus "not an
absolute obligation," the district court determined that dismissal
was inappropriate for a variety of reasons, including that the
Intervenors were aware of this litigation but opted to intervene
only after preliminary approval of the settlement agreement.
The district court subsequently approved the Sefcovic SA, and the
Intervenors timely appealed the district court's determination that
it possessed subject matter jurisdiction.
In seeking dismissal of the action, the Intervenors relied
primarily on two similar provisions appearing in the Lindauer SA
and the stipulated judgment adopted by the state court. Those
provisions declare that the state court retains "continuing
jurisdiction" to enforce the Lindauer SA and the stipulated
judgment. Intervenors argued below, and they maintain on appeal,
that those provisions vest "exclusive jurisdiction over the parties
and subject matter" in the state court.
Because many of their arguments rest in whole or in part on the
Intervenors' erroneous assertion that the district court was
without subject matter jurisdiction, Judge McHugh begins with a
discussion of subject matter jurisdiction. He then proceed to
distinguish that concept from doctrines of abstention and matters
of venue and forum, and concludes by applying these concepts to the
appeal.
The only inquiries remaining in the appeal are (1) whether the
district court, pursuant to a doctrine of abstention or comity,
should have stayed or dismissed this action in favor of the state
court litigation; and (2) whether the district court abused its
discretion in denying Intervenors' motion to dismiss based on forum
non conveniens.
Because Intervenors have not established that the district court's
orders interfered with a civil proceeding "uniquely in furtherance
of the state courts' ability to perform their judicial functions,"
Judge McHugh holds that the district court properly found that
Younger abstention did not apply.
In addition, because neither the forum selection clause in the
Lindauer SA nor the related language in the stipulated judgment is
mandatory, the district court did not abuse its discretion in
declining to dismiss the case under the doctrine of forum non
conveniens.
For the reasons he articulated, Judge McHugh concluded that the
district court properly determined that it possessed subject matter
jurisdiction over the action, correctly declined to abstain under
Younger, and rightly found "no indication that the parties
contemplated the state court to be the exclusive forum" in which to
litigate their contractual disputes. The judgment is affirmed.
A full-text copy of the Court's March 18, 2020 Opinion is available
at https://is.gd/hycJ1r from Leagle.com.
David G. Seely -- dseely@fleeson.com -- Fleeson, Gooing, Coulson &
Kitch, L.L.C., Wichita, Kansas (Thomas D. Kitch, Gregory J. Stucky,
Ryan K. Meyer, Fleeson, Gooing, Coulson & Kitch, L.L.C., Wichita,
Kansas; George Robert Miller , G. R. Miller, P.C., Durango,
Colorado; and Nathan A. Keever -- keever@dwmk.com -- Dufford,
Waldeck, Milburn & Krohn, LLP, Grand Junction, Colorado, with him
on the briefs) for Intervenors-Appellants.
Christopher A. Chrisman -- cachrisman@hollandhart.com -- Holland &
Hart LLP, Denver, Colorado (John F. Shepherd, P.C., Holland & Hart
LLP, Denver, Colorado; George A. Barton -- gab@georgebartonlaw.com
-- and Stacy A. Burrows -- stacy@georgebartonlaw.com -- Law Offices
of George A. Barton, P.C., Overland Park, Kansas, with him on the
brief), for Appellees.
TITAN RESTAURANT: Bid to Certify Classes in Knoll FLSA Suit Denied
------------------------------------------------------------------
In the case, SHERRY A. KNOLL individually and on behalf of all
others similarly situated, Plaintiff, v. TITAN RESTAURANT GROUP,
LLC d/b/a DONATOS PIZZA, Defendant, Case No. 1:18-cv-02632-JRS-DML
(S.D. Ind.), Judge James R. Sweeney, II of the U.S. District Court
for the Southern District of Indiana, Indianapolis Division, denied
(i) the Plaintiff's Motion to Certify Combined Class Action and
FLSA Collective Action; (ii) the Plaintiff's Motion for Approval of
Class and Collective Action Notice and FLSA Opt In Form; and (ii)
the Defendant's Motion to File Surreply to Plaintiff's Reply in
Support of her Motion to Certify a Combined Class Action and FLSA
collective Action.
Titan is a franchisee of Donatos Pizza. It operates 41 restaurants
in Ohio, Kentucky, and Indiana. Knoll worked as a part-time
delivery driver at Titan's Greenwood, Indiana restaurant from May
1, 2018 to July 9, 2018. She was injured at work on July 9, 2018
and took medical leave. Except for two days that Knoll returned to
work -- Dec. 12 and 13, 2018 -- she has not worked for Titan since
July 9, 2018 and has since been collecting workers' compensation.
Knoll brings claims against Defendant Titan for violations of the
Fair Labor Standards Act of 1938 ("FLSA"), and the Indiana Wage
Payment Statute. Knoll was a part-time delivery driver for Titan
for approximately three months. Knoll alleges, on behalf of
herself and similarly situated employees, that Titan illegally
deducted from her wages, failed to ensure its employees received a
minimum wage on a weekly basis, paid employees less than minimum
wage during new employee orientation, did not compensate employees
for tips paid on credit cards, cancelled credit card tips when
refunding orders, required Knoll and other tip-credit employees to
perform non-tipped activities, shared tipped employees' tips with
non-tipped employees, and did not reimburse Knoll and other
delivery drivers for their food deliveries.
Knoll alleges that the following FLSA violations prevent Titan from
claiming a tip-credit: (1) failing to ensure drivers were paid
enough in tips to earn a minimum wage on a workweek basis, (2)
retaining tips paid to drivers through credit cards, (3) refunding
customer credit card transactions, which included tips intended for
drivers, (4) failing to reimburse drivers for actual miles driven,
and (5) requiring drivers to share their tips with non-tipped Titan
employees.
Knoll now seeks certification of a FLSA collective action and a
Federal Rule of Civil Procedure 23(b)(3) class action. She seeks
to conditionally certify the following collective action: Present
and former Titan Delivery Drivers who worked at any time from Aug.
27, 2015 to the present and who were not timely paid a full minimum
wage at the rate of at least $7.25 per hour in one or more work
weeks. Knoll alleges that seven of Titan's pay practices violate
the FLSA and entitle her to conditional certification of her
collective action.
Judge Sweeney holds that Titan's failure to calculate its
employees' wages on a workweek basis will only violate the FLSA if
an employee was actually paid less than the minimum wage during a
workweek. Because Knoll was paid at or above minimum wage each
week, she does not have standing to assert this claim on behalf of
other employees. Put otherwise, Knoll is not "similarly situated"
to any employees who might have been paid less than minimum wage as
a result of Titan's biweekly calculation process.
Next, while the checkout sheets do not represent that Titan was
retaining its drivers credit card tips, Knoll testified, without
offering any supporting evidence, that she was not paid her tips at
the end of each night, and that whatever money she collected from
customers during her delivery runs, she had to give back to the
store. But Knoll can only identify one other Titan employee who
alleged he "had to pay more back than what he earned" at the end of
his shift. Knoll, in her deposition, but nowhere in her Amended
Complaint or briefs, states that the other employee was named
Steve, but did not know his last name. Without an accompanying
affidavit or declaration from Steve, Judge Sweeney cannot certify a
collective action based on anecdotal evidence and speculation.
Knoll also submits her own testimony, in which she claims she saw
the manager and assistant managers refund entire credit card
transactions, including any tip. However, Knoll does not provide
the court with testimony of any other Titan delivery drivers who
had their tips cancelled during a refund, nor does she establish
that Titan had a policy of returning tips to customers when they
requested a refund. As stated, Judge Sweeney cannot certify a
collective action based on anecdotal evidence and speculation.
Lastly, Knoll argues that Titan is prohibited from claiming a tip
credit because it required her to share her tips with managers and
cooks who are non-tip-credit employees. The anecdotal evidence
submitted by Knoll, that sometimes, non-tip-credit employees would
receive more tips than her, is not sufficient to make even a
threshold showing that she and other Titan employees were subject
to a policy that mandated tip-sharing with back of the house
employees or managers.
Knoll asserts that Titan has a policy of paying its delivery driver
employees below minimum wage when they undergo the onboarding
process. Employees are paid at their hourly rate for orientation,
so, for example, delivery drivers would be paid at $4.05 an hour.
Knoll claims however, and Titan concedes, that she was not paid at
all for the time she spent going through the orientation process on
May 1, 2018. She is therefore not similarly situated to other
Titan employees who were paid $4.05 an hour for orientation, and
she offers no evidence of any other Titan employees who similarly
were not paid during the orientation process. Thus, Knoll does not
have standing to assert this claim on behalf of a collective
action, rules the Court.
Judge Sweeney makes no decision as to whether adjusting for an
overpayment is a kickback at all, or whether this one-time
adjustment to employees' paychecks otherwise violates the FLSA.
However, he finds that the evidence before the Court does not
demonstrate a common pay plan or policy that violated the FLSA.
Knoll has not set forth any evidence that Titan has made negative
adjustments to its employees' pay checks on more than one occasion
or even that Titan has a policy of making such deductions when
payroll errors are made. It is not even a "modest factual showing"
of a common plan or policy.
Because Knoll has not shown that she and similarly situated
employees were victims of a common policy that allegedly violated
the FLSA, conditional certification of her proposed collective
action is not appropriate.
Knoll seeks to certify the following class under the Indiana Wage
Payment Statute: Present and former Titan Delivery Drivers who
worked in the State of Indiana at any time from Aug. 27, 2016 to
the present and who, as shown by Titan's own pay roll records, were
not timely paid regular wages on one or more occasions based upon
wage deductions taken by Titan in a category it called Adjustment.
Knoll alleges that the negative adjustment on her paycheck was a
"wage assignment" in violation of IND. CODE Section 22-2-6-2(a).
Employers can only assign its employees' wages if "(1) the
assignment is: (A) in writing; (B) signed by the employee
personally; (C) by its terms revocable at any time by the employee
upon written notice to the employer; and (D) agreed to in writing
by the employer."
Because Knoll has not met Rule 23's numerosity requirement, Judge
Sweeney need not address Rule 23's other prongs. Knoll is not
entitled to class certification of her Indiana Wage Payment Statute
claim. Collective and class action certification is not warranted
even excluding the declarations of Simon, Bowman, Rich and Mills,
which the Judge did not consider, so she need not reach the issue.
For the reasons explained, Judge Sweeney denied (i) the Plaintiff's
Motion to Certify Combined Class Action and FLSA Collective Action;
and (ii) their Motion for Approval of Class and Collective Action
Notice and FLSA Opt In Form. The Plaintiff's objections to the
declarations of Stacho and Thompson are overruled. Lastly, the
Judge denied the Defendant's Motion to File Surreply to Plaintiff's
Reply in Support of her Motion to Certify a Combined Class Action
and FLSA Collective Action.
A full-text copy of the Court's March 18, 2020 Order is available
at https://is.gd/WlDFWU from Leagle.com.
SHERRY A. KNOLL, individually and on behalf of all others similarly
situated, Plaintiff, represented by Brian R. Drummy --
bdrummy@lawbr.com -- BUNGER & ROBERTSON & Robert Peter Kondras,
Jr., HASSLER KONDRAS MILLER LLP.
TITAN RESTAURANT GROUP, LLC, doing business as DONATOS PIZZA,
Defendant, represented by Brendan P. Feheley --
bfeheley@keglerbrown.com -- KEGLER, BROWN, HILL RITTER, Christopher
S. Stake -- cstake@delaneylaw.net -- DELANEY & DELANEY LLC,
Kathleen Ann DeLaney -- kathleen@delaneylaw.net -- DELANEY &
DELANEY LLC & Robert G. Cohen -- rcohen@keglerbrown.com -- KEGLER
BROWN HILL RITTER.
TODD TAYLOR CUSTOM: Morales Seeks to Recover Unpaid Back Wages
--------------------------------------------------------------
Joaquin Morales, individually and on behalf of others similarly
situated v. TODD TAYLOR CUSTOM TRIM, LLC, and TODD L. TAYLOR, Case
No. 3:20-cv-00857-E (N.D. Tex., April 14, 2020), is brought against
the Defendants to recover back wages, an equal amount of
liquidated/double damages, attorney fees, interest, and costs under
the Fair Labor Standards Act.
The Plaintiff says he regularly worked more than 40 hours per
workweek and, when he did, the Defendants did not pay him an
overtime premium of at least one and one-half times his regular
rate of pay for hours worked over 40 in a workweek. The Defendants
intentionally misclassified the Plaintiff as an independent
contractor in an effort to avoid paying the Plaintiff overtime
compensation, says the complaint.
The Plaintiff worked for the Defendants as hourly-paid construction
employee.
T&T is in the business of installing custom cabinets, trim,
moldings, and finish out in new homes, commercial sites, medical
facilities, specialized memory care and skilled nursing facilities,
and more.[BN]
The Plaintiff is represented by:
Barry S. Hersh, Esq.
HERSH LAW FIRM, PC
3626 N. Hall St., Suite 800
Dallas, TX 75219-5133
Phone: (214) 303-1022
Fax: (214) 550-8170
Email: barry@hersh-law.com
TRANSAMERICA PREMIER: Alvarez EFTA Suit Moved to C.D. California
----------------------------------------------------------------
The class action lawsuit captioned as EMITERIO MARK ALVAREZ,
individually and on behalf of all others similarly situated v.
TRANSAMERICA PREMIER LIFE INSURANCE COMPANY, and DOES 1-10, Case
No. CIV-DS-2000021 (Filed Jan. 10, 2020), was removed from the
Superior Court of California for the County of San Bernardino to
the U.S. District Court for the Central District of California on
April 1, 2020.
The Central District of California Court Clerk assigned Case No.
5:20-cv-00658 to the proceeding.
The Plaintiff asserts a federal cause of action against TPLIC for
purported violations of Electronic Funds Transfer Act.
TPLIC operates as an insurance firm. The Company offers accidental
and health insurance, annuity, and single premium insurance
plans.[BN]
The Defendants are represented by:
Vivian I. Orlando, Esq.
Justin M. Penn, Esq.
Zina Yu, Esq.
HINSHAW & CULBERTSON LLP
633 West 5th Street, 47th Floor
Los Angeles, CA 90071-2043
Telephone: 213 680-2800
Facsimile: 213 614-7399
E-mail: vorlando@hinshawlaw.com
jpenn@hinshawlaw.com
zyu@hinshawlaw.com
TRUEFIRE LLC: Faces Llamas Suit in M.D. Florida Over Data Breach
----------------------------------------------------------------
Emmanuel Llamas, an individual and on behalf of himself and all
others similarly situated v. TRUEFIRE, LLC, and TRUEFIRE, INC.,
Case No. 8:20-cv-00857 (M.D. Fla., April 14, 2020), is brought on
behalf of all persons whose personally identifiable information was
compromised due to the Defendants' negligence and violations of
several California and Florida statutes.
The data breach is the result of the Defendants' failure to:
adequately protect their users' PII; warn users of their inadequate
information security practices; and effectively monitor TrueFire's
websites, apps, and ecommerce platforms for security
vulnerabilities and incidents, the Plaintiff alleges.
On March 9, 2020, TrueFire began notifying customers and various
state Attorneys General about a widespread data breach that
occurred from August 3, 2019, to January 14, 2020. Hackers not only
"scraped" many of TrueFire's customers' names from the website by
infecting it with malware, they also stole customers' addresses,
payment card numbers, CVV security codes, and credit card
expiration dates ("PII"). The criminals obtained everything they
needed to illegally use TrueFire's customers' credit cards to make
fraudulent purchases, and to steal the customers' identities.
According to the complaint, not only did hackers skim TrueFire's
customers' PII, on information and belief the stolen names and card
information are now for sale on the dark web. That means the Breach
worked. Hackers accessed and then offered for sale the unencrypted,
unredacted stolen PII to criminals. Because of Defendants' Breach,
customers' PII is still available on the dark web for criminals to
access and abuse. TrueFire's customers face a lifetime risk of
identity theft.
The Plaintiff contends that the PII was compromised due to
TrueFire's negligent and/or careless acts and omissions and the
failure to protect customers' data. In addition to TrueFire's
failure to prevent the Breach, the Defendants failed to detect the
Breach for over five months, and when they did discover the Breach
on January 10, 2020, it took them almost two more months to report
the Breach to the affected customers on March 9, 2020, says the
complaint.
Plaintiff Llamas purchased TrueFire classes in 2019 using his debit
card, including on October 11, 2019.
TrueFire specializes in selling online guitar lessons on TrueFire's
mobile apps and popular websites, including
http://www.truefire.com/,http://www.truefirestudios.com/,and
http://www.jamplay.com/.[BN]
The Plaintiff is represented by:
John A. Yanchunis, Esq.
Ryan J. McGee, Esq.
MORGAN & MORGAN COMPLEX LITIGATION GROUP
201 N. Franklin Street, 7th Floor
Tampa, FL 33602
Phone: (813) 223-5505
Fax: (813) 223-5402
Email: jyanchunis@forthepeople.com
rmcgee@forthepeople.com
- and -
M. Anderson Berry, Esq.
Leslie Guillon, Esq.
CLAYEO C. ARNOLD, A PROFESSIONAL LAW CORPORATION
865 Howe Avenue
Sacramento, CA 95825
Phone: (916) 777-7777
Fax: (916) 924-1829
Email: aberry@justice4you.com
lguillon@justice4you.com
UBER TECHNOLOGIES: Capriole Suit Moved From D. Mass. to N.D. Cal.
-----------------------------------------------------------------
The class action lawsuit captioned as JOHN CAPRIOLE, individually
and on behalf of all others similarly situated v. UBER
TECHNOLOGIES, INC. and DARA KHOSROWSHAHI, Case No. 1:19-cv-11941
(Filed Sept. 12, 2019), was transferred from the U.S. District
Court for the District of Massachusetts to the U.S. District Court
for the Northern District of California (San Francisco) on April 1,
2020.
The Northern District of California Court Clerk assigned Case No.
3:20-cv-02211-EMC to the proceeding. The case is assigned to the
Hon. Judge Edward M. Chen.
According to the complaint, Uber has misclassified its drivers,
including the Plaintiff, as independent contractors when they
should be classified under Massachusetts law as employees. Based on
the drivers' misclassification as independent contractors, Uber has
unlawfully required drivers to pay business expenses in violation
of Mass Gen. Laws.
Uber is a car service, which engages thousands of drivers in the
Commonwealth of Massachusetts, who can be hailed and dispatched
through a mobile phone application to transport riders. Uber is
based in San Francisco, California, and it does business across the
United States and extensively throughout Massachusetts.[BN]
The Plaintiff is represented by:
Shannon Liss-Riordan, Esq.
Adelaide H. Pagano, Esq.
Anne Kramer, Esq.
LICHTEN & LISS-RIORDAN, P.C.
729 Boylston Street, Suite 2000
Boston, MA 02116
Telephone: (617) 994-5800
Facsimile: (617) 994-5801
E-mail: sliss@llrlaw.com
apagano@llrlaw.com
akramer@llrlaw.com
The Defendants are represented by:
Blaine H. Evanson, Esq.
Brandon Stoker, Esq.
Heather Richardson, Esq.
Joshua S. Lipshutz, Esq.
Theane Evangelis, Esq.
GIBSON DUNN AND CRUTCHER LLP
333 S Grand Ave.
Los Angeles, CA 90071
Telephone: (213) 229-7228
Facsimile: (213) 229-7520
E-mail: bevanson@gibsondunn.com
HRichardson@gibsondunn.com
jlipshutz@gibsondunn.com
tevangelis@gibsondunn.com
UNION SECURITY: Licea Suit Seeks to Recover Unpaid Overtime Wages
-----------------------------------------------------------------
Alexis Licea, and other similarly-situated individuals v. UNION
SECURITY SAFETY, CORP, JOSE A. VEGA CAMPOS and REYNIER VEGA CONDE,
individually, Case No. 1:20-cv-21566-UU (S.D. Fla., April 14,
2020), is brought to recover from the Defendants unpaid overtime
compensation, retaliatory damages, liquidated damages, and the
costs and reasonable attorney's fees under the Fair Labor Standards
Act.
According to the complaint, the Plaintiff was not paid minimum
wages, or/and worked in excess of 40 hours during one or more weeks
on or after February 2018, without being compensated pursuant to
the FLSA. The Plaintiff is owed half-time overtime for hours in
excess of 40, that were paid to him at his regular wage-rate, and
he is owed time and one half his regular rate for a substantial
number of hours that were not paid to him at any rate, not even the
minimum wage rate.
The Plaintiff worked as a security guard for the Defendants.
Union Security is a Florida corporation that provides security
services to businesses, residential communities, supermarkets,
etc.[BN]
The Plaintiff is represented by:
Zandro E. Palma, Esq.
ZANDRO E. PALMA, P.A.
9100 S. Dadeland Blvd., Suite 1500
Miami, FL 33156
Phone: (305) 446-1500
Facsimile: (305) 446-1502
Email: zep@thepalmalawgroup.com
UNITED STATES: Ninth Circuit Appeal Initiated in Sai Class Suit
---------------------------------------------------------------
Plaintiff SAI filed an appeal from a Court ruling in the lawsuit
titled Sai v. David Pekoske, et al., Case No. 4:16-cv-01024-JST, in
the U.S. District Court for the Northern District of California,
Oakland.
As previously reported in the Class Action Reporter, a class action
lawsuit has been filed against U.S. government departments on
February 29, 2016, captioned Sai, on Plaintiff's own behalf, and on
behalf of all those similarly situated v. David Smith, Jim Adams,
Champagne Ellison, Covenant Aviation Security (CAS), Transportation
Security Administration (TSA), Department of Homeland Security
(DHS), United States of America, Kimberly Walton, William McKenney,
Seena Foster, Zachary Bromer, Jeremy Buzzell, and Erika Lucas.
Covenant Aviation Security (CAS) provides airport security services
under the Transportation Security Administration's Screening
Partnership Program (SPP). In 2002, CAS was awarded multiple
contracts for providing commercial screening services to the TSA
under the privatization pilot program initiated by the Aviation and
Transportation Security Act. CAS mobilized and hired 1,200
screening personnel at San Francisco International Airport and the
Tupelo Regional Airport within six weeks of contract award.
The appellate case is captioned as Sai v. David Pekoske, et al.,
Case No. 20-15615, in the United States Court of Appeals for the
Ninth Circuit.
Plaintiff-Appellant SAI, on Plaintiff's own behalf, and on behalf
of all those similarly situated, appears pro se.[BN]
Defendants-Appellees, DAVID P. PEKOSKE, in his official capacity as
Administrator of the Transportation Security Administration (TSA)
and KEVIN K. MCALEENAN, in his official capacity as acting
Secretary of the United States Department of Homeland Security
(DHS), are represented by:
Wendy Marie Garbers, Esq.
DOJ-USAO
450 Golden Gate Avenue
San Francisco, CA 94102
Telephone: (415) 436-6475
UNITED VALET: Denies Hourly Workers' Earned Wages, Afarinesh Says
-----------------------------------------------------------------
ARAM AFARINESH, an individual, on behalf of herself, all other
aggrieved employees, and the general public v. UNITED VALET
PARKING, INC., a California corporation, and DOES 1 through 25,
inclusive, Case No. 20STCV12714 (Cal. Super., Los Angeles Cty.,
April 1, 2020), challenges the Defendants' employment practices
denying their non-exempt hourly workers earned wages, including
overtime pay, under the California Labor Code Private Attorneys
General Act of 2004.
The Plaintiff contends that the Defendants require their employees
to be present and perform work in excess of eight hours per day
and/or 40 hours per work week, but fail to pay them overtime wages
accordingly, and further fail to pay such non-exempt employees for
all straight time hours they worked.
United Valet was founded in 1985. The Company's line of business
includes providing miscellaneous personal services.[BN]
The Plaintiff is represented by:
Michael H. Boyamian, Esq.
Katrina Castillo Espina, Esq.
Alfred Movsesyan, Esq.
BOYAMIAN LAW, INC.
550 North Brand Boulevard, Suite 1500
Glendale, CA 91203
Telephone: (818)547-5300
Facsimile: (818)547-5678
E-mail: michael@boyamianlaw.com
katrina@boyamianlaw.com
alfred@boyamianlaw.com
- and -
Edgar Manukyan, Esq.
MANUKYAN LAW FIRM, APC
520 East Wilson Avenue, Suite 200
Glendale, CA 91206
Telephone: (818)559-4444
Facsimile: (888)746-4420
E-mail: edgar@manukyanlawfirm.com
WHOLE FOODS: ShiKai CBD Lotion Can't Be Legally Sold, Figura Says
-----------------------------------------------------------------
JENNIFER FIGURA v. WHOLE FOODS MARKET GROUP, INC., d/b/a WHOLE
FOODS MARKET, Case No. CACE-20-005708 (Fla. Cir., Broward County,
March 31, 2020), is brought on behalf of the Plaintiff and all
others similarly situated in Florida arising from the Defendant's
alleged deceptive, misleading and unfair practices relating to the
sale of CBD Body Lotion Product.
The Plaintiff alleges that the Defendant's ShiKai(TM) CBD Body
Lotion Product cannot lawfully be sold because it is an unapproved
new drug. The Plaintiff points out that the Product, according to
its explicit advertising, marketing, labeling and packaging, is
clearly intended to be applied topically for use in the cure,
mitigation, treatment, and/or intended to affect the structure or
any function of the body, thus, the Products are drugs under
section 201 (g)(1) of the Food, Drug, and Cosmetic Act, 21 U.S.C.
321 (g)(1).
On March 26, 2020, the Plaintiff purchased ShiKai(TM) CBD Body
Lotion 750 MG, 6 FL OZ/175 ML bottle, from the Defendant located at
2000 N. Federal Highway, in Fort Lauderdale, Florida.
Whole Foods was founded in 1990. The Company's line of business
includes the retail sale of a range of canned foods and dry
goods.[BN]
The Plaintiff is represented by:
Howard W. Rubinstein, Esq.
THE LAW OFFICE OF HOWARD W. RUBINSTEIN
1281 N. Ocean Dr., Apt 198
Singer Island, FL 33404
Telephone: 832 715 2788
Facsimile: 561 688 0630
E-mail: howardr@pdq.net
YKF FOODS: Vari Seeks Unpaid Minimum Wages for Delivery Drivers
---------------------------------------------------------------
CHARLES A. VARI, on behalf of himself and others similarly situated
v. YKF FOODS, INC. d/b/a HUNGRY HOWIE'S, K C & F S INC. d/b/a
HUNGRY HOWIE'S, and YASSER KAZBOUR, individually, Case No.
105639314 (Fla. Cir., Hillsborough Cty., March 30, 2020), seeks to
recover unpaid minimum wages for the Plaintiff and his fellow
delivery drivers that have been systemically denied minimum wages
to which they were entitled under the Florida Constitution.
The Plaintiff worked for the Defendants as a pizza delivery driver
from August 9, 2018, until September 29, 2018.
The Defendants operate a franchise chain in the United States.[BN]
The Plaintiff is represented by:
Marc R. Edelman, Esq.
George G. Triantis, Esq.
MORGAN & MORGAN, P.A.
201 North Franklin Street, Suite 700
Tampa, FL 33602
Telephone: 813-223-5505
Facsimile: 813-257-0572
E-mail: MEdelman@forthepeople.com
GTriantis@forthepeople.com
ZOOM VIDEO: Lawton Sues Over Deceptive Advertising of Software
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Robert Lawton, as an individual, on behalf of himself, the general
public and those similarly situated v. ZOOM VIDEO COMMUNICATIONS,
INC., Case No. 3:20-cv-02592-SK (N.D. Cal., April 14, 2020), arises
from the Defendant's: deceptive practices relating to its video and
audio conferencing software, and false and misleading advertising
that violates the Business and Professions Code and the Consumer
Privacy Act.
Zoom promises customers that its products allow them to "meet
securely" though "end-to-end encryption for all meetings,
role-based user security, password protection, waiting rooms, and
place attendee on hold." Zoom's chief product is "Zoom Meetings."
The Plaintiff alleges that Zoom consistently violates its duty to
its over 200 million users to implement and maintain reasonable
security practices, fails to disclose known security risks, and
affirmatively misleads consumers about the security benefits of its
product.
In particular, the Plaintiff says, Zoom collects private
information about its users and discloses this information to
Facebook, LinkedIn, other users, and other third parties. The
Plaintiff asserts that Zoom intentionally omits this fact from its
privacy policy and misleads reasonable consumers to believe that
the information they share in Zoom meetings is private. The
Plaintiff notes that Zoom claims to offer users the privacy and
protection of end-to-end encryption, the most secure form of
internet communication. In reality, the Plaintiff adds, Zoom does
not offer end-to-end encryption, and its software cannot even
support such security measures.
Instead, Zoom accesses private information that users share on the
Zoom network, says the complaint. Zoom has also failed to disclose
or remedy known vulnerabilities that allow hackers and other
websites to forcibly access a user's webcam, join a user to a Zoom
call without his or her permission, and access recordings of Zoom
meetings.
The Plaintiff used and/or purchased Zoom's product believing that
the product was secure and that their information was safe.
Zoom provides a popular online platform for video and audio
conferencing, collaboration, chat, and webinars.[BN]
The Plaintiff is represented by:
Adam J. Gutride, Esq.
Seth A. Safier, Esq.
Marie A. McCrary, Esq.
GUTRIDE SAFIER LLP
100 Pine Street, Suite 1250
San Francisco, CA 94111
Phone: (415) 789-6390
Facsimile: (415) 449-6469
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