/raid1/www/Hosts/bankrupt/CAR_Public/200723.mbx
C L A S S A C T I O N R E P O R T E R
Thursday, July 23, 2020, Vol. 22, No. 147
Headlines
ADAMS & ASSOCIATES: Stock Ownership Plan Lawsuit Heads to Trial
ANGLICARE: Investigates Potential Newmarch House Class Action
APPLE: Faces Class Action Over iMessage, FaceTime Security Flaw
AUDI: Faces Class Action Over Start-Stop System Malfunctions
AUSTRALIA: Hawkesbury Residents Urged to Join Centrelink Class Suit
BEZEQ: Amended Class Action Statement of Claim Filed
BLACKHAWK INDUSTRIAL: Tisdom Sues Alleging Wrongful Termination
BRISTOL COUNTY, MA: Savino Files 1st Cir. Appeal in Detainee Suit
BROOKDALE SENIOR: Rosen Law Firm Reminds of Aug. 24 Deadline
CANADA POST: Faces Class Action Over Late Packages
CARGILL LTD: Faces Class Action Over Major COVID-19 Outbreak
CELLULAR SALES: Second Circuit Appeal Filed in Holick FLSA Suit
CHG MEDICAL: Loses Bid for Summary Judgment in Carlino Suit
CINCINNATI INSURANCE: Won't Cover COVID Losses, Swearingen Says
COMMONSPIRIT HEALTH: Faces Smith Suit Over Violations of ERISA
CONSOL ENERGY: Fitzwater Appeals Ruling in ERISA Suit to 4th Cir.
CONTINENTAL CASUALTY: Denies Coverage for COVID Loss, Motiv Says
CVS PHARMACY: Falsely Markets Pain Acetaminophen, Youngblood Says
DALLAS COUNTY, TX: George Floyd Protesters File Class Action
DELOITTE CONSULTING: Bozin Negligence Suit Removed to N.D. Ohio
DICK'S SPORTING: Fails to Pay Minimum & OT Wages, Carroll Alleges
DIRECTV: Attys. Request Court Permission to Contact 9,100 Customers
DRAPER JAMES: Seeks Dismissal of "Free Dress" Class Action
EL AL ISRAEL: Faces Class Action Over Unpaid Ticket Refunds
EMC INSURANCE: Class Action Seeks Premium Refunds Due to COVID-19
ENPHASE ENERGY: ClaimsFiler Reminds of August 17 Deadline
ENVIROCHROME INTERIORS: Faces Tristate Suit in New York Sup. Ct.
EQUITY EXPERTS: Class Action Status Granted in FDCPA Lawsuit
ERIE INSURANCE: Denies Coverage for COVID-19 Losses, Hello Claims
FARMER'S GROUP: Denies Coverage for COVID-19 Losses, Nora's Says
FIFTH THIRD: Court Dismisses Amended Harmon Class Suit
GLOBAL WIDGET: Glass Suit Over Misbranded CBD Products Stayed
GLYNN COUNTY, GA: Calculations in $17.5MM Deal Expected by August
GOLDEN TRUST: Squire Patton Discusses Ruling in Perez TCPA Suit
GREY NUNS: Faces Class Action Over Alleged Children Abuse
HAITI: Seeks Dismissal of Price-Fixing Class Action
HARTFORD FINANCIAL: Denies Coverage for COVID Loss, Blushark Says
HARTFORD FINANCIAL: Denies Coverage for COVID Losses, GO-4 Says
HARTFORD FINANCIAL: Denies Coverage for COVID Losses, Weet Says
HARVARD UNIVERSITY: Law Student's Class Action Demand Reimbursement
HARVEY WEINSTEIN: Accuser Opposes Settlement, Says Process Unfair
KINGOLD JEWELRY: Bronstein Gewirtz Reminds of August 31 Deadline
KINGOLD JEWELRY: Pomerantz Law Firm Reminds of Aug. 31 Deadline
LIFE TIME: Fitness Instructors File Wage Class Action
LLOYD'S LONDON: Denies Coverage for COVID-19 Losses, MDH Alleges
LLOYD'S LONDON: Denies Coverage for COVID-19 Losses, Palm Claims
LOUISIANA: Court Denies Gumns' TRO Motion in Prisoners Suit
MARIN COUNTY, CA: Shurwest Appeals Decision to Calif. App. Ct.
MCDONALD'S USA: Rocha Labor Class Suit Removed to E.D. California
MICROSOFT CORP: Vance Sues Over Unlawful Use of Biometric Info
MINNEAPOLIS, MN: Faces Zielinski Suit in Hennepin District Court
NATIONAL FREIGHT: Misclassification Class Action Can Proceed
NATIONAL FREIGHT: Third Cir. Appeal Filed in Portillo Wage Suit
NAUTILUS INSURANCE: Dumont Class Suit Moved to W.D. Pennsylvania
NESTLE: Files Motion to Dismiss Slave Labor Class Action
NEVADA: DETR Faces Class Action Over Delayed PUA
NEW HDM: Villanueva Sues Over Unpaid Minimum and Overtime Wages
NEW YORK HEALTH: Home Attendants Class in Andryeyeva Suit Certified
NEW YORK, NY: Aspen Athletic Clubs File Class Action
NEW YORK: 2nd Cir. Appeal v. Flemming Filed in Gulino Bias Suit
NEW YORK: 2nd Cir. Appeal v. Gathers Filed in Gulino Bias Suit
NORTH PACIFIC SEAFOOD: Faces Class Suit Over Involuntary Quarantine
NORTH PACIFIC: Fails to Pay Minimum and OT Wages, Doe Suit Says
NOVARTIS: Alfred G. Yates Investigates Breach of Fiduciary Claims
NTN BROTHERS: Fails to Pay OT Wages Under FLSA, Villalta Claims
OCERA THERAPEUTICS: 9th Cir. Upholds Securities Suit Dismissal
OLSON RESEARCH: Dismissal of Fischbein & Mauthe Suits Reversed
OREGON: Judge OKs fees in $1.1BB Lawsuit v. Dept. of Forestry
OVASCIENCE INC: Court Grants Class Certification in Dahhan Action
PERRIGO: Faces Investor Class Action Over Tax Charge
PETER NYGARD: Lawyers File Motion to Dismiss Class Action
PROASSURANCE CORP: Faruqi & Faruqi Reminds of August 17 Deadline
PROLINE PLUMBING: Fails to Pay All Hours Worked, Dierking Claims
QUALITY CARRIERS: Ninth Cir. Appeal Filed in Salter Labor Suit
QUDIAN INC: Averts Securities Fraud Class Action
RAYTHEON COMPANY: N.R. Appeals Ruling in ERISA Suit to 1st Cir.
RYDER SYSTEM: Schall Law Announces Securities Class Action Filing
SCHLEGEL VILLAGES: Faces $20MM Class Action Over COVID-19 Deaths
SD-CHARLOTTE LLC: $500K Sale of All RTHT's MOD Assets Approved
SHELBY COUNTY, TN: Hearings on Jail Class Actions Continue
SHUTTERFLY INC: Can Compel Arbitration in Miracle-Pond BIPA Suit
SIMPSON STRONG-TIE: Court Dismisses First Amended Cooper Suit
SLIDE FIRE: Motion Threatens to Wipe Out Victim Compensation Fund
STATE FARM: Breach of Contract Class Action Can Proceed
STONE BREWING: Worker Must Arbitrate Background Check Claims
STUDENTUNIVERSE.COM INC: Thoman Seeks Refund of Processing Fees
SUBARU OF AMERICA: Faces Class Action Over Defective Fuel Pumps
TASTE AND SABOR: Tambriz Sues Over Unpaid Minimum, Overtime Wages
TEAMHEALTH: Faces Class Action Over Fraudulent Billing Practices
TIKTOK INC: Faces Kukovec BIPA Suit Over Use of Biometric Data
UNIVERSITY OF CALIFORNIA: Kang Seeks Refund Over COVID-19 Closure
USA TECHNOLOGIES: Pa. Court OKs Settlement in Securities Class Suit
WALGREENS BOOTS: 4th Cir. Appeal Filed in JR Personal Injury Suit
WELLS FARGO: Bankers Criticize $22.4MM Judgment in Fax Case
WILLSPEED TECHNOLOGY: Faces Class Action Over GermBloc Claims
WIRECARD AG: Levi & Korsinsky Reminds of Sept. 8 Plaintiff Deadline
WIRECARD AG: Robbins LLP Files Suit for Misleading Shareholders
[*] Campaign Group to Fight Move to Curb Class Action Funding
[*] CBD Class Actions Stayed on Primary Jurisdiction Grounds
[*] Class Action Industry in Australia Needs More Regulation
[*] Court Approves $4MM Attorneys Fees in Bushfire Class Action
[*] Cruise Industry Faces Class Action Threat Over Coronavirus
[*] Inquiry Into Class Action Industry in Australia Launched
[*] Lawmakers Fight Arbitration, Class Action Waiver Clauses
*********
ADAMS & ASSOCIATES: Stock Ownership Plan Lawsuit Heads to Trial
---------------------------------------------------------------
Jacklyn Wille, writing for Bloomberg Law, reports that a class
action challenging how a Job Corps-affiliated vocational training
company handled its employee stock ownership plan is headed toward
trial minus a few claims resolved by a federal judge in California
in favor of the company's directors.
Carol Foster and Theo Foreman can move forward with claims that
certain directors of Adams & Associates Inc. failed to properly
monitor and provide relevant information to the trustee who
represented the ESOP participants in a $33.5 million stock
transaction, U.S. Magistrate Judge Jacqueline Scott Corley with the
U.S. District Court for the Northern District of California ruled
on July 6. [GN]
ANGLICARE: Investigates Potential Newmarch House Class Action
-------------------------------------------------------------
The Weekly Source reports that compensation law firm Shine Lawyers
has announced it is investigating a potential class action against
Anglicare after 19 residents at the home died during its 65-day
coronavirus outbreak.
National Practice Leader Lisa Flynn said Shine will allege the Not
For Profit was negligent in its handling of the health crisis and
breached its duty of care to residents.
"Grieving relatives want to know why their loved ones weren't
immediately taken to hospital after testing positive so they could
receive the high-level clinical care they needed," Ms. Flynn said.
"They also want to know why they were kept in the dark as
coronavirus spread through the facility and why staff were either
not qualified or not properly supported to make critical
decisions."
"The reality is lives would have been saved if Newmarch House had
the right protocols and medical care procedures in place and
adhered to them from the start."
Class actions do require seven people to join the claim.
Shine says that they had already been contacted by several eligible
individuals and are canvassing other families to join. [GN]
APPLE: Faces Class Action Over iMessage, FaceTime Security Flaw
---------------------------------------------------------------
Lisa Eadicicco, writing for Business Insider, reports that Apple
and T-Mobile are facing a class action lawsuit over allegations
that their failure to disclose a security issue that made it
possible for third parties to access messages and video calls sent
through Apple's iMessage and FaceTime apps jeopardized consumer
privacy.
The plaintiffs, Tigran Ohanian and Regge Lopez, say Apple misled
customers by promoting the security of its products without
disclosing a vulnerability that made it possible for strangers to
access iMessage and FaceTime interactions.
The complaint was filed on July 6 in the United States District
Court for the Southern District of New York. Apple Insider and
Bloomberg Law first discovered the complaint.
The complaint refers to an issue that prompted an Apple ID--the
account required to download apps from the App Store and register
Apple products with your iCloud account--to remain tied to a
T-Mobile SIM card even after the iPhone owner had finished using
that SIM card and switched phone numbers.
When an iPhone owner stopped using a T-Mobile SIM card, the phone
number tied to that SIM card would remain attached to the
associated Apple ID even after the carrier had recycled it and
given it to a new customer, the lawsuit says. Because Apple IDs
maintained a "legacy connection" with T-Mobile SIM cards, the
previous owner of the SIM card would receive iMessages and FaceTime
calls intended for the new owner.
"In other words, because of the legacy connection, iMessage
correspondence and FaceTime calls directed to the new owner of a
phone number would lead to the iMessage correspondence or FaceTime
call being unknowingly and improperly misdirected to the prior
owner of the phone number because of its previous association with
the SIM card," the complaint says.
Neither Apple nor T-Mobile required customers to manually
disassociate their Apple ID from their phone number to prevent the
issue, the lawsuit says. The plaintiffs also take issue with
Apple's marketing language that positions its products as being
highly secure despite the flaw.
By not disclosing the flaw and SIM card practices, Apple and
T-Mobile caused customers to become "unsuspecting victims of
extensive security data breaches," the complaint says.
T-Mobile declined to discuss pending litigation when reached for
comment. Apple did not immediately respond to Business Insider's
request for comment.
The issue was covered in Ars Technica and Gizmodo back in 2011 and
2012, but wasn't fixed until 2018 when Apple released its iOS 12
operating system update, which requires multi-factor
authentication, says the complaint. In its coverage from 2011, Ars
Technica spoke with a reader who encountered this issue when his
wife's iPhone was stolen. After the thief had stolen the phone, the
buyer was able to send and receive messages from the phone posing
as the reader's wife.
It's not the only time security issues have been reported with
Apple's FaceTime in recent years. In early 2019, Apple fixed a flaw
that made it possible to eavesdrop on an iPhone through FaceTime's
group calling feature. [GN]
AUDI: Faces Class Action Over Start-Stop System Malfunctions
------------------------------------------------------------
David A. Wood, writing for CarComplaints.com, reports that Audi
Start-Stop system malfunctions have caused a class action lawsuit
that alleges the vehicles are too dangerous to drive for Audi
owners, occupants and all others on the roads.
The Start-Stop system was created to allegedly reduce carbon
dioxide emissions and reduce fuel consumption by shutting off the
engine when the vehicle stops at a traffic light and during certain
stop-and-go-driving.
A light activates when the system shuts down the engine, and
releasing the brake pedal restarts the engine, allegedly before the
foot reaches the accelerator pedal.
The Audi Start-Stop system malfunctions allegedly occur in these
vehicles.
2017-2020 Audi A3
2017-2020 Audi A4
2017-2020 Audi A5
2017-2020 Audi A6
2017-2020 Audi A7
2017-2020 Audi A8
2017-2020 Audi S3
2017-2020 Audi S4
2017-2020 Audi S6
2017-2020 Audi S8
2017-2020 Audi TT
2017-2020 Audi TTS
2017-2020 Audi Q5
2017-2020 Audi Q7
2017-2020 Audi Q8
2017-2020 Audi SQ5
But according to the class action lawsuit, the allegedly defective
Start-Stop system causes a loss of power braking and steering
before the vehicle comes to a complete stop. And steering, braking
and accelerating is allegedly delayed when a driver attempts to
resume motion.
The plaintiff claims Volkswagen/Audi knows the Start-Stop systems
have problems but refuses to repair or replace the systems, and
refuses to honor warranties.
Florida plaintiff Michael Pitts purchased a 2018 Audi A6 in March
2019, but he says the engine shuts down before the vehicle comes to
a complete stop.
This allegedly causes the power steering to "become extremely
difficult to use" and the "brake pedal also becomes heavy and the
brakes to not operate in the same manner as when the engine is
running."
The plaintiff says when the vehicle restarts from a stop, it
lurches forward and the "power steering does not immediately
engage, making it difficult to steer the car. In addition, the car
will not accelerate as expected initially, but then blasts
forward."
Pitts also alleges the Start-Stop system almost caused a crash in
June.
The plaintiff says he took the Audi to a dealership and told
technicians about the problems, but he was allegedly told not to
worry about anything because the vehicle was performing normally
and "was learning your driving pattern." The class action says no
repairs were performed.
Audi issued technical service bulletin (TSB 00 18 14 2045316/3) to
dealerships in 2017 because customers were complaining about the
Start-Stop systems.
The bulletin said customers reported the "Start/Stop system does
not shutdown when the driver thinks it should," and the "engine is
not automatically switched off or on." In addition, customers were
reporting the "engine restarts from a start/stop for reasons
unknown to the driver."
As of November 2018, the Start-Stop system TSB had been expanded to
include 2017-2019 Audi A3, A4, A5, A6, A7, A8, S3, S4, S5, S6, S8,
TT, TT S, Q5, Q7, Q8 and SQ5 vehicles.
Audi told dealers that customers may be mistaking normal operations
as faulty systems.
"The Start/Stop system is complex and the number of the conditions
affecting it is high. In many cases concerns about the Start/Stop
system may actually be normal operation or influenced by the
actions of the driver or passenger." - TSB 00 18 14 2045316/3
A separate Audi Start-Stop system class action lawsuit was filed in
2017 alleging the system prevented restart of the engine if the
driver unbuckled their seat belt while at a stop. However, the Audi
lawsuit was later dismissed.
According to the latest lawsuit, Audi owners are entitled to
refunds of the purchase prices of the vehicles, compensation for
overpaying for the vehicles and for loss of values. Owners should
also allegedly receive reimbursement of out-of-pocket expenses and
an "injunction compelling Audi to replace, or recall and fix, the
Affected Vehicles."
The Audi Start-Stop system malfunction class action lawsuit was
filed in the U.S. District Court for the Eastern District of
Virginia, Alexandria Division: Pitts, et al., v. Volkswagen Group
of America, Inc., et al.
The plaintiff is represented by Bailey Glasser, LLP, and Hagens
Berman Sobol Shapiro LLP.
CarComplaints.com has complaints from drivers of the Audi vehicles
named in the Start-Stop system class action lawsuit.
Audi A3
Audi A4
Audi A5
Audi A6
Audi A7
Audi A8
Audi S3
Audi S4
Audi S6
Audi S8
Audi TT
Audi TTS
Audi Q5
Audi Q7
Audi Q8
Audi SQ5
[GN]
AUSTRALIA: Hawkesbury Residents Urged to Join Centrelink Class Suit
-------------------------------------------------------------------
Finn Coleman, writing for Hawkesbury Gazette, reports that
Hawkesbury residents who received debt notices from the Federal
Government's Centrelink scandal have been urged by Federal
Macquarie MP Susan Templeman to join a class action.
Then-treasurer Scott Morrison was the architect of the Robodebt
scheme, which targeted millions of Australians over four years, to
extract $1.5 billion in debts from students, pensioners and other
welfare recipients.
"This was an illegal program and the Morrison Government has been
forced to pay back more than 370,000 people a total of $721
million, so far," Ms. Templeman said.
"When Shadow Minister for Government Services and the NDIS, Bill
Shorten, joined me online for a virtual town hall on June 30, he
said 60,000 people had joined a class action against the government
over this scheme.
"As Mr Shorten said, the Morrison Government has been forced to
announce it will refund the population of Wollongong and Newcastle
combined. It's almost the population of Tasmania.
Mr. Shorten said the scheme "is not just unfair but I think it's
illegal".
"There's 60,000 people who've registered, and as a result of the
class action with Gordon Legal, that's going to go to court on
September 21 or thereabouts," Mr. Shorten said.
"I would just say to anyone in the community; give Gordon Legal a
ring. If this government says it owes people $721 million, call me
a bit cynical but that means they owe more than that.
"Don't be shy about registering. There is no cost to registering in
the class action."
Ms. Templeman said that this was massive and thanked Mr Shorten on
behalf of the Robodebt victims in Macquarie for the work he has
done to expose the scheme.
"It has caused so much grief, and I have been approached by people
in our community who have said they are so pleased there could be
some justice for those who were wrongly targeted," she said.
Anyone who wants to register for the class action should visit
https://gordonlegal.com.au/robodebt-class-action/ for more
information. [GN]
BEZEQ: Amended Class Action Statement of Claim Filed
----------------------------------------------------
On July 12, 2020, Bezeq The Israel Telecommunication Corporation
Ltd. ("Bezeq"), a 26.34% subsidiary of B Communications Ltd. (the
"Company"), reported to the Israel Securities Authority (the "ISA")
and Tel Aviv Stock Exchange (the "TASE") that an amended statement
of claim has been filed in respect of an existing class action
lawsuit against Bezeq. The existing class action lawsuit alleged
that losses were caused to Bezeq's shareholders as a result of
Bezeq's failures in reporting to the TASE and due to the
concealment of material information from the investing public
regarding certain matters. [GN]
BLACKHAWK INDUSTRIAL: Tisdom Sues Alleging Wrongful Termination
---------------------------------------------------------------
LEVAUGHN TISDOM, an individual v. BLACKHAWK INDUSTRIAL
DISTRIBUTION, INC., an Oklahoma Corporation; MACHINE TOOLS SUPPLY
DBA DISTRIBUTION NOW, a Texas Corporation, and DOES 1 through 25,
inclusive, Case No. 20STCV25149 (Cal. Super., Los Angeles Cty.,
July 2, 2020), is brought on behalf of the Plaintiff and others
similarly situated asserting claims against the Defendants for
wrongful termination and employment practices that violate public
policy.
The lawsuit also asserts claims for discrimination, in violation of
the California Fair Employment and Housing Act; and for retaliation
for reporting illegal activities, in violation of the California
Labor Code.
The Plaintiff contends that in 2018, Mr. Burchard and Mr. Johnson,
tried to embarrass him in front of the employees that he
supervised. They abruptly cancelled meetings he had organized, and
reassigned his employees and projects arbitrarily and without
warning. Mr. Burchard also used disparaging racial remarks, telling
him "let's hire a bunch of Asians with little hands, they can
package faster." Starting in October 2019, he was harassed by
Operations Manager Bryan Comyns and co-worker Vanessa (last name
unknown). Mr. Comyns took his supervisees out to lunch to conspire
on how to develop a pretext for his termination, he adds.
As a result of the Defendants' actions, the Plaintiff has suffered
and will continue to suffer general and special damages, including
severe and profound pain and emotional distress, anxiety,
depression, headaches, tension, and other physical ailments, as
well as medical expenses and past and future lost wages and
benefits, says the complaint.
The Plaintiff began working for Defendants on March 1, 2007, as a
Vendor Inventory Manager, until his employment ended on March 20,
2020. During the Plaintiff's employment with the Defendants, the
Plaintiff reported to several supervisors, including Manager Rob
Johnson, Operations Manager Bryan Comyns and Regional Operations
Manager Scott Burchard. Mr. Johnson, Mr. Comyns, and Mr. Burchard
are white males, while the Plaintiff is African American.
BlackHawk Industrial provides industrial distribution services. The
Company offers cutting tools, precision instruments, and welding
equipment. BlackHawk Industrial Distribution conducts its business
in the United States.[BN]
The Plaintiff is represented by:
Young W. Ryu, Esq.
Alexander D. Wallin, Esq.
Britanie A. Martinez, Esq.
LOYR, APC
3130 Wilshire Blvd. Suite 209
Los Angeles, CA 90010
Telephone: (888) 365 8686
Facsimile: (800) 576 1170
E-mail: young.ryu@loywr.com
alexander.wallin@loywr.com
britanie.martinez@loywr.com
BRISTOL COUNTY, MA: Savino Files 1st Cir. Appeal in Detainee Suit
-----------------------------------------------------------------
Plaintiffs Maria Alejandra Celimen Savino, et al., filed an appeal
from a court ruling entered in the lawsuit entitled Celimen Savino,
et al. v. Hodgson, et al., Case No. 1:20-cv-10617-WGY, in the U.S.
District Court for the District of Massachusetts, Boston.
Thomas M. Hodgson is sued in his official capacity as Bristol
County Sheriff.
As previously reported in the Class Action Reporter, Judge William
G. Young of the U.S. District Court for the District of
Massachusetts granted a motion for class certification.
The named Petitioners are two of approximately 148 individuals
detained by Immigration and Customs Enforcement ("ICE") on civil
immigration charges and held at the Bristol County House of
Corrections ("BCHOC") in North Dartmouth, Massachusetts. The
Detainees are held in two on-site facilities: 92 are in a separate
ICE facility called the C. Carlos Carreiro Immigration Detention
Center, and the rest are housed in a portion of the BHCOC called
"Unit B" together with non-immigration pre-trial detainees.
The Detainees assert that they find it impossible to maintain the
recommended distance of 6 feet from others and they must also share
or touch objects used by others. They have provided affidavits
from two physicians who have recently visited Detainees on site.
Dr. Nathan Praschan of Massachusetts General Hospital states that
the best-known methods of preventing infectious spread, such as
social distancing, frequent hand washing, and sanitation of
surfaces are unavailable to the Detainees, who sleep, eat, and
recreate in extremely close quarters and do not have access to
basic hygienic supplies. Dr. Matthew Gartland of Brigham and
Women's Hospital avers that based on his own experience visiting
Bristol County House of Corrections, he does not believe that the
Detainees, can be adequately protected from the virus that causes
COVID-19. This is based on a lack of private sinks or showers and
inadequate hand soap supplies, and hand sanitizers, as well as
inadequate allowance for social distancing, screening for symptoms
and exposure to the virus, testing of individuals with symptoms,
and appropriate quarantine and isolation facilities.
The Detainees filed a habeas petition as a putative class action in
the Court on March 27, 2020. The petition asserts two claims: (1)
violation of due process as a result of confinement in conditions
that include the imminent risk of contracting COVID-19; and (2)
violation of section 504 of the Rehabilitation Act for failure to
provide reasonable accommodations, in the form of protection
against COVID-19, to the Detainees with medical conditions.
The appellate case is captioned as Celimen Savino, et al. v.
Hodgson, et al., Case No. 20-1626, in the United States Court of
Appeals for the First Circuit.
The briefing schedule in the Appellate Case states that Appearance
form, Docketing Statement and Transcript Report/Order form are due
on July 28, 2020.[BN]
Petitioners-Appellants MARIA ALEJANDRA CELIMEN SAVINO, and all
those similarly situated; and JULIO CESAR MEDEIROS NEVES, and all
those similarly situated, are represented by:
Muneer I. Ahmad, Esq.
Reena Parikh, Esq.
Michael J. Wishnie, Esq.
YALE LAW SCHOOL
PO Box 209090
127 Wall St.
New Haven, CT 06520-9090
Telephone: (203) 432-4716
E-mail: muneer.ahmad@yale.edu
reena.parikh@yale.edu
michael.wishnie@yale.edu
- and -
Rama S. Attreya, Esq.
Michael J. Brown, Esq.
John Joseph Butts, Esq.
Annaleigh Elizabeth Curtis, Esq.
Nicole M. Fontaine Dooley, Esq.
Elizabeth E. Driscoll, Esq.
Felicia H. Ellsworth, Esq.
Vinita Ferrera, Esq.
Mikayla C. Foster, Esq.
Gary B. Howell-Walton, Esq.
Lisa Pirozzolo, Esq.
WILMERHALE LLP
60 State St.
Boston, MA 02109-0000
Telephone: (617) 526-6347
E-mail: RAMA.ATTREYA@WILMERHALE.COM
MIKE.BROWN@WILMERHALE.COM
JOHN.BUTTS@WILMERHALE.COM
ANNALEIGH.CURTIS@WILMERHALE.COM
NICOLE.FONTAINEDOOLEY@WILMERHALE.COM
ELIZABETH.DRISCOLL@WILMERHALE.COM
FELICIA.ELLSWORTH@WILMERHALE.COM
VINITA.FERRERA@WILMERHALE.COM
MIKAYLA.FOSTER@WILMERHALE.COM
GARY.HOWELL-WALTON@WILMERHALE.COM
LISA.PIROZZOLO@WILMERHALE.COM
- and -
Ivan Espinoza-Madrigal, Esq.
Oren Nimni, Esq.
Oren McCleary Sellstrom, Esq.
LAWYERS' COMMITTEE FOR CIVIL RIGHTS
61 Batterymarch St., 5th Flr.
Boston, MA 02110
Telephone: (617) 482-1145
Facsimile: (617) 482-4392
E-mail: office@lawyersforcivilrights.org
Respondents-Appellees THOMAS M. HODGSON, in his official capacity
as Bristol County Sheriff; STEVEN J. SOUZA, in his official
capacity as Superintendent of the Bristol County House of
Corrections; TODD M. LYONS, in his official capacity as Acting
Director of the Boston Field Office of Immigrations and Customs
Enforcement; CHAD F. WOLF, in his official capacity as Acting
Director of the Department of Homeland Security; MATTHEW T.
ALBENCE, in his official capacity as Deputy DIrector and Senior
Official Performing the Duties of the DIrector for U.S. Immigration
and Customs Enforcement; and IMMIGRATION CUSTOMS ENFORCEMENT are
represented by:
Thomas E. Kanwit, Esq.
Donald Campbell Lockhart, Esq.
Michael P. Sady, Esq.
US ATTORNEY'S OFFICE
1 Courthouse Way, Ste. 9200
Boston, MA 02210
Telephone: (617) 748-3271
Interested Party RICK RAEMISCH is represented by:
William W. Fick, Esq.
FICK & MARX LLP
24 Federal St., 4th Flr.
Boston, MA 02110
Telephone: (857) 321-8360
E-mail: wfick@fickmarx.com
BROOKDALE SENIOR: Rosen Law Firm Reminds of Aug. 24 Deadline
------------------------------------------------------------
Rosen Law Firm, a global investor rights law firm, reminds
purchasers of the securities of Brookdale Senior Living, Inc.
between August 10, 2016 and April 29, 2020, inclusive (the "Class
Period"), of the important August 24, 2020 lead plaintiff deadline
in the securities class action. The lawsuit seeks to recover
damages for Brookdale investors under the federal securities laws.
To join the Brookdale class action, go to
http://www.rosenlegal.com/cases-register-1864.htmlor call Phillip
Kim, Esq. toll-free at 866-767-3653 or
email--pkim@rosenlegal.com--or--cases@rosenlegal.com--for
information on the class action.
NO CLASS HAS YET BEEN CERTIFIED IN THE ABOVE ACTION. UNTIL A CLASS
IS CERTIFIED, YOU ARE NOT REPRESENTED BY COUNSEL UNLESS YOU RETAIN
ONE. YOU MAY RETAIN COUNSEL OF YOUR CHOICE. YOU MAY ALSO REMAIN AN
ABSENT CLASS MEMBER AND DO NOTHING AT THIS POINT. AN INVESTOR'S
ABILITY TO SHARE IN ANY POTENTIAL FUTURE RECOVERY IS NOT DEPENDENT
UPON SERVING AS LEAD PLAINTIFF.
According to the lawsuit, defendants throughout the Class Period
made false and/or misleading statements and/or failed to disclose
that: (1) Brookdale's financial performance was sustained by, among
other things, the Company's purposeful understaffing of its senior
living communities; (2) the foregoing conduct subjected Brookdale
to an increased risk of litigation and, once revealed, was
foreseeably likely to have a material negative impact on
Brookdale's financial results and reputation; (3) as a result,
Brookdale's financial results were unsustainable; and (4) as a
result, defendants' public statements were materially false and
misleading at all relevant times. When the true details entered the
market, the lawsuit claims that investors suffered damages.
A class action lawsuit has already been filed. If you wish to serve
as lead plaintiff, you must move the Court no later than August 24,
2020. A lead plaintiff is a representative party acting on behalf
of other class members in directing the litigation. If you wish to
join the litigation, go to
http://www.rosenlegal.com/cases-register-1864.htmlor to discuss
your rights or interests regarding this class action, please
contact Phillip Kim, Esq. of Rosen Law Firm toll free at
866-767-3653 or via e-mail at pkim@rosenlegal.com or
cases@rosenlegal.com.
Rosen Law Firm represents investors throughout the globe,
concentrating its practice in securities class actions and
shareholder derivative litigation. Rosen Law Firm was Ranked No. 1
by ISS Securities Class Action Services for number of securities
class action settlements in 2017. The firm has been ranked in the
top 3 each year since 2013. Rosen Law Firm has secured hundreds of
millions of dollars for investors. Attorney Advertising. Prior
results do not guarantee a similar outcome.
Laurence Rosen, Esq.
Phillip Kim, Esq.
The Rosen Law Firm, P.A.
275 Madison Avenue, 40th Floor
New York, NY 10016
Tel No: (212) 686-1060
Fax: (212) 202-3827
E-mail: lrosen@rosenlegal.com
pkim@rosenlegal.com
cases@rosenlegal.com [GN]
CANADA POST: Faces Class Action Over Late Packages
--------------------------------------------------
Louis Angot, writing for Narcity, reports that if you've done any
shopping online over the past few months, chances are you've
received some deliveries late. If this is the case, you could get
some cash! A class-action lawsuit against Canada Post has been
filed, and it's all because of some seriously late packages.
A request was made to the Quebec Superior Court on July 6, which
aims to get compensation for people who've paid for expedited
shipping, but not received their packages on time.
The lawsuit is being made on behalf of anybody who has paid for an
expedited shipping service since March 14, 2020, and who did not
get their delivery at the time that was guaranteed.
According to the documents filed, several fast delivery services,
including Priority, Xpresspost and Expedited Parcel come with a
guarantee of on-time delivery, a promise which comes at a higher
price.
This guarantee makes it possible to request a reimbursement of
costs if your package is delivered after the scheduled date.
However, Canada Post announced on March 19, 2020, that it was
suspending this guarantee due to the COVID-19 pandemic.
This move came "abruptly and without warning or consent," claims
the lawsuit.
Since March, Canada Post has refused to reimburse any delivery
costs when there are delays.
However, the lawsuit alleges that the delivery time guarantee is
still detailed on the company's website, despite numerous press
releases explaining the delays.
The lawsuit, therefore, claims that Canada Post "has charged and
continues to charge its customers for services that it cannot
currently guarantee" and that it "has been unjustly enriched by its
illegal conduct."
In order to compensate the affected customers, the class-action
lawsuit calls on Canada Post to reimburse all costs paid for
expedited shipping services.
It's also asking the company to pay a total of $400 to each
customer for "troubles and inconveniences" and "punitive damages."
The amounts requested also include additional interest rates.
The class action is still pending authorization by a judge, but you
can register right now.
All you need to do is fill in the form available on the Lambert
Avocat Inc. website. [GN]
CARGILL LTD: Faces Class Action Over Major COVID-19 Outbreak
------------------------------------------------------------
Daily Hornet reports that Cargill Ltd. was hit with a class action
lawsuit after a major COVID-19 outbreak at the High River beef
plant in Alberta, Canada.
The plaintiffs do not include the employees, who are covered under
worker compensation laws. Instead, the lawsuit was filed for
hundreds of their family members and other close contacts who were
infected.
Cargill is accused of failing to take reasonable precautions to
protect workers and their contacts during the COVID-19 pandemic.
The lawsuit was filed after more than 900 workers at a Cargill beef
packing plant south of Calgary were infected with COVID-19.
Overall, more than 1,500 cases of COVID-19 have been linked to the
plant.
The plant shut down for two weeks in April after one employee died
and around 350 workers were infected with COVID-19, out of around
2,200 employees at the plant.
The plant soon reopened with safety precautions--including
temperature checks, physical distancing, cleaning and
sanitizing--but hundreds of workers were still infected after the
re-opening.
In May, a third death was linked to the outbreak. The victim was a
man who worked at the plant who was hospitalized in April.
The other two deaths were a 67-year-old female employee and a
71-year-old father of another employee.
Employees have reported "elbow-to-elbow" working conditions and
said the facility was simply too crowded, even with fewer workers
on site, to make physical distancing effective.
Even so, the High River plant is currently running at full
operation, processing about 4,500 head of cattle a day--more than
36% of Canada's total beef-processing capacity. [GN]
CELLULAR SALES: Second Circuit Appeal Filed in Holick FLSA Suit
---------------------------------------------------------------
Defendant Cellular Sales of New York, LLC, filed an appeal from the
District Court's Memorandum-Decision and Order dated May 29, 2020,
and Judgment dated May 29, 2020, entered in the lawsuit entitled
Holick v. Cellular Sales of New York, LLC, Case No. 12-cv-584, in
the U.S. District Court for the Northern District of New York
(Syracuse).
As previously reported in the Class Action Reporter on June 10,
2019, Judge Norman A. Mordue (i) denied the Plaintiffs' motion for
class certification, and (ii) granted the Defendants' motion to
decertify the conditional Fair Labor Standards Act ("FLSA")
collective action.
The named Plaintiffs, on behalf of themselves and all others
similarly situated, bring this action under the FLSA, and New York
State Labor Law ("NYLL"), against Cellular Sales of New York, LLC
("CSNY") and Cellular Sales of Knoxville, Inc. ("CSK"), asserting
claims for alleged violations of minimum wage and overtime
requirements. The Plaintiffs further allege NYLL violations related
to the Defendants': (1) failure to pay for compensable work; (2)
unlawful wage deductions; and (3) failure to timely pay wages.
The Plaintiffs' claims stem from their alleged employment
relationship with the Defendants prior to January 2012.
Essentially, they claim that the Defendants misclassified them as
"independent contractors" instead of "employees" as defined by the
FLSA and NYLL, thus depriving them of employee benefits required by
law.
On Feb. 14, 2014, the parties filed a stipulation for conditional
certification pursuant to Section 216(b) of the FLSA, and the
collective was later expanded by stipulation and order dated
October 21, 2015, to include members of the following group: All
individuals who, during any workweek between June 24, 2010 up to
and through Dec. 31, 2011, who (a) performed sales services for
Cellular Sales of New York, LLC or Cellular Sales of Knoxville,
Inc. in New York; (b) were classified as non-employee contractors;
and (c) were paid, in whole or in part, on a commission basis.
The appellate case is captioned as Holick v. Cellular Sales of New
York, LLC, Case No. 20-2212, in the United States Court of Appeals
for the Second Circuit.[BN]
Plaintiffs-Appellees Justin Moffitt, on behalf of themselves and
all others similarly situated; Gurwinder Singh, on behalf of
themselves and all others similarly situated; Jason Mack, on behalf
of themselves and all others similarly situated; Timothy M. Pratt,
on behalf of themselves and all others similarly situated; and
William Burrell, on behalf of themselves and all others similarly
situated, are represented by:
Ronald G. Dunn, Esq.
GLEASON, DUNN, WALSH & O'SHEA
40 Beaver Street
Albany, NY 12207
Telephone: (518) 432-7511
E-mail: rdunn@gdwo.net
Defendants-Appellants Cellular Sales of New York, LLC, and Cellular
Sales of Knoxville, Inc., are represented by:
Charles Larry Carbo, III, Esq.
CHAMBERLAIN, HRDLICKA, WHITE, WILLIAMS & AUGHTRY
1200 Smith Street
Houston, TX 77002
Telephone: (713) 658-1818
E-mail: Larry.carbo@chamberlainlaw.com
CHG MEDICAL: Loses Bid for Summary Judgment in Carlino Suit
-----------------------------------------------------------
In the case, JACQUELINE CARLINO, an individual on behalf of herself
and others similarly situated, Plaintiff, v. CHG MEDICAL STAFFING,
INC., Defendant, Case No. 1:17-cv-01323-DAD-JLT (E.D. Cal.), Judge
Dale A. Drozd of the U.S. District Court for the Eastern District
of California (i) denied the Defendant's motion for summary
judgment, and (ii) granted in part the Plaintiff's partial motion
for summary judgment.
Defendant CHG staffs nurses and technicians on short-term travel
assignments, primarily at hospitals across the United States.
Between October 2015 and August 2016, CHG staffed Plaintiff Carlino
on three 13-week travel assignments to Madison and Jamesville,
Wisconsin and Bakersfield, California. While on each of these
assignments, the Plaintiff's permanent residence was in Pittsburgh,
Pennsylvania.
The typical travel assignment lasts 13 weeks and required employees
to be away from their homes for the duration of the assignment.
Employees staffed to work travel assignments incurred meal,
incidental, and lodging expenses while away from their permanent
residences at their assignment locations. In addition to their
weekly wages, travelers were provided weekly per diem payments,
covering seven days' worth of meals, incidentals, and housing,
either in the form of a housing allowance or company-provided
housing.
CHG used the federal government's Continental United States per
diem rates set by the General Services Administration, and the
Internal Revenue Service to determine the per diem. The per diems
were included in travelers' weekly electronic deposits or paychecks
and appeared as two separate line items on their weekly paystubs.
Travelers were not required to provide verification of actual
expenses in order to receive per diems, and CHG did not restrict
how travelers spent their per diems.
The average weekly per diem paid to members of the Rule 23
certified class1 during the class period was $986.55. CHG required
travelers to work a specified minimum number of hours each week,
generally 36 hours consisting of three 12-hour shifts. Thus, when
the average weekly per diem for the class is divided by the 36
hours a traveler works each week, the per diem results in an hourly
rate of approximately $27.40. The average base hourly wage paid to
the class was approximately $23.17. Thus, when the hourly per diem
rate is combined with the base hourly wage, it results in a
combined pay rate of approximately $50.57 per hour.
Whether a traveler is entitled to the full weekly per diem each
week is conditioned on whether she has worked the contracted number
of minimum required weekly hours. If a traveler satisfies her
weekly hours requirement, she receives her full weekly per diem.
If, however, she does not satisfy the requirement for any reason
other than the client facility cancelling a scheduled shift, her
weekly per diem is adjusted by CHG pursuant to a Missed Shift
Adjustment ("MSA"). The MSA adjusts a specific proportional amount
of per diems downward when employees' weekly hours fall short of
their minimum hours' requirement.
On Sept. 29, 2017, the Plaintiff commenced the collective and class
action against CHG based on its alleged failure to include all
remuneration -- specifically, the value of the per diems -- in the
regular rate of pay when calculating overtime pay for travelers.
The Plaintiff asserts: (1) a class action claim for failure to pay
overtime wages pursuant to California Labor Code Sections 510,
1194; (2) a class action claim for unfair business practices
pursuant to California Business and Professions Code Section 17200
et seq.; (3) a class action claim for waiting time penalties
pursuant to California Labor Code Sections 201-03; and (4) a
collective action claim for violation of the Fair Labor Standards
Act ("FLSA"), due to failure to pay overtime wages.
On May 14, 2019, both the Plaintiff and Defendant CHG moved for
summary judgment, with the Plaintiff seeking partial summary
judgment as to liability only, and CHG seeking summary judgment in
its favor as to each of the Plaintiff's four causes of action. On
June 14, 2019, the parties filed their oppositions, and on July 2,
2019, their replies.
Judge Drozd concludes that the weekly per diem that CHG furnishes
to a traveler constitutes remuneration for hours worked and its
value must therefore be included in the traveler's regular rate for
the purpose of calculating her overtime pay. Accordingly, he will
deny CHG's motion for summary judgment in its entirety. He will
also grant summary judgment in the Plaintiff's favor on the issue
of CHG's liability as to her first and fourth causes of action in
which she alleges a failure to pay overtime under the California
Labor Code and the FLSA, respectively. Moreover, because the
Plaintiff's second cause of action -- alleging violations of the
California Business and Professions Code -- is derivative of her
unpaid overtime claims, the Judge will grant summary judgment in
the Plaintiff's favor on the issue of CHG's liability as to that
cause of action as well.
Next, there is no Ninth Circuit authority addressing the specific
issue of whether per diems that vary with the amount of hours
worked in a week are part of an employee's regular rate. While it
might be true that CHG knew of a risk that its conduct is contrary
to law based on the existence of conflicting case law, the
Plaintiff has produced no evidence suggesting that CHG did not take
affirmative action to assure compliance with the FLSA. CHG adopted
a position that was supported by the district court's decision in
Clarke v. AMN Services, LLC, albeit a position that was
inconsistent with that taken by other circuits and has since been
rejected by other district courts in California who have been
called upon to consider it. Because under these circumstances it
cannot be said that CHG's violation of the FLSA for failure to pay
overtime wages was willful, the Judge will deny the Plaintiff's
motion for partial summary judgment to the extent it seeks the
application of a three-year statute of limitations with respect to
her FLSA claim.
The Plaintiff contends that there is no evidence in the record that
CHG had an honest intention to ascertain and follow the dictates of
the FLSA. The Plaintiff points out that CHG has not even attempted
to meet its burden in opposition. Accordingly, the Plaintiff
argues that the collective is entitled to liquidated damages as a
matter of law. Because CHG has proffered no evidence to establish
that it had an honest intention to ascertain and follow the
dictates of the FLSA, the Judge concludes that the Plaintiff is
entitled to summary judgment on the issue of CHG's liability for
liquidated damages as a matter of law.
FInally, the central question is whether CHG's failure to pay
unpaid overtime was willful. Similar to his analysis of the
Plaintiff's position concerning the statute of limitations under
the FLSA, the Judge concludes that the Plaintiff has not
established that CHG intentionally failed or refused to perform an
act which was required to be done. Indeed, CHG had a "good faith
dispute" on the issue of whether the value of the per diem was to
be included in a traveler's regular for the purposes of calculating
her overtime pay. Accordingly, the Judge will deny the Plaintiff's
motion for partial summary judgment on the issue of her entitlement
to waiting time penalties under California law.
For the reasons set forth, Judge Drozd denied the Defendant CHG
motion for summary judgment.
The Judge granted in part the Plaintiff's partial motion for
summary judgement as to liability only is granted in part as
follows:
a. The Plaintiff's motion is granted with respect to her
class action claim brought under the California Labor Code for
failure to pay overtime;
b. The Plaintiff's motion is granted with respect to her
class action claim for violations of California's Business and
Professions Code; and
c. The Plaintiff's motion is granted with respect to her
collective action claim for violations of the FLSA for failure to
pay overtime.
The FLSA collective is entitled to liquidated damages. The
Plaintiff's motion is denied in all other respects.
The Judge lifted the stay on the case entered on Nov. 1, 2019.
A full-text copy of the District Court's May 15, 2020 Order is
available at https://is.gd/Adjbdm from Leagle.com.
CINCINNATI INSURANCE: Won't Cover COVID Losses, Swearingen Says
---------------------------------------------------------------
SWEARINGEN SMILES LLC, and ELEISHA J. NICKOLES DDS, on behalf of
themselves and all others similarly situated v. THE CINCINNATI
INSURANCE COMPANY; THE CINCINNATI CASUALTY COMPANY; and THE
CINCINNATI INDEMNITY COMPANY, Case No. 1:20-cv-00517-MWM (S.D.
Ohio, July 2, 2020), alleges breach of contract arising from the
Plaintiffs' contracts of insurance with the Defendants.
The Plaintiffs and the Class purchased and paid for an "all-risk"
Commercial Property Coverage insurance policy from the Defendants,
which provides broad property insurance coverage for all
non-excluded, lost business income, including the losses asserted.
At the direction of local, state, and/or federal authorities,
and/or due to the COVID-19 public health emergency, Plaintiff
Swearingen was forced to temporarily close its dental office
beginning on March 16, 2020, and Plaintiff Nickoles was forced to
temporarily close her dental office beginning on March 24, 2020,
causing an interruption to and loss of Plaintiffs' business
income.
The Plaintiffs says they submitted timely notices of their claims
to the Defendant, but the Defendant has refused to provide the
purchased coverage to its insured, and has denied the Plaintiffs'
claims for benefits under the respective policies. The Plaintiffs
contend that the Defendants have similarly refused to, or will
refuse to, honor its obligations under the "all-risk" policy(ies)
purchased by the Plaintiffs and the other members of the putative
Class of insureds.
Swearingen operates a dentistry practice and maintains its
principal place of business at 48959 Calcutta Smithferry Road, in
East Liverpool, Ohio (Swearingen Covered Property). The Plaintiff,
Eleisha J. Nickoles DDS, is an individual, who resides in, and is a
citizen of, West Virginia. The Plaintiff is a licensed West
Virginia dentist, who maintains an office location at 1320 National
Road, in Wheeling, West Virginia (Nickoles Covered Property).
The Cincinnati Insurance Company, operating since 1950, stands
among the nation's top 25 property casualty insurer groups based on
net written premiums. The group markets business, home and auto
insurance products through a select group of independent insurance
agencies in 43 states and the District of Columbia.[BN]
The Plaintiffs are represented by:
Gary F. Lynch, Esq.
Kelly K. Iverson, Esq.
CARLSON LYNCH LLP
1133 Penn Avenue, 5th Floor
Pittsburgh, PA 15222
Telephone: (412) 322-9243
Facsimile: (412) 231-0246
E-mail: glynch@carlsonlynch.com
kiverson@carlsonlynch.com
- and -
Howard M. Louik, Esq.
LOUIK LAW OFFICES
750 Washington Road, Unit 705
Pittsburgh, PA 15228
Telephone: (412) 889-7541
Facsimile: (412) 391-7310
E-mail: howard@louiklaw.net
COMMONSPIRIT HEALTH: Faces Smith Suit Over Violations of ERISA
--------------------------------------------------------------
YOSAUN SMITH, Individually and as a representative of a class of
similarly situated persons and on behalf of the CATHOLIC HEALTH
INITIATIVES 401(K) PLAN v. COMMONSPIRIT HEALTH a/k/a CATHOLIC
HEALTH INITIATIVES; THE CATHOLIC HEALTH INITIATIVES RETIREMENT
PLANS SUBCOMMITTEE; and DOES No. 1-10, Whose Names Are Currently
Unknown, Case No. Case: 2:20-cv-00095-WOB-EBA (E.D. Ky., July 2,
2020), is brought against the Defendants for breach of their
fiduciary duties under the Employee Retirement Income Security Act,
and related breaches of applicable law beginning six years from the
date this action is filed and continuing to the date of judgment.
The lawsuit is brought on behalf of the Plaintiff and a class of
similarly-situated participants and beneficiaries of the Catholic
Health Initiatives 401(k) Plan a/k/a the Catholic Health
Initiatives 401(k) Retirement Savings Plan.
The Plaintiff contends that the Defendants have breached their
fiduciary duties to the Plan by failing to fully disclose the
expenses and risk of the Plan's investment options to participants;
and allowing unreasonable expenses to be charged to participants
for administration of the Plan.
As of December 31, 2018, the Plan had 105,590 participants with
account balances and assets totaling over $3.2 billion, placing it
in the top 0.1% of all 401(k) plans by plan size.
Mr. Smith, a former employee of Catholic Health and participant in
the Plan, is a resident of Peoria, Arizona.
Catholic Health is a Colorado not-for-profit corporation that s
headquartered in Englewood, Colorado and/or Chicago, Illinois, and
which also maintains an office from which a substantial amount of
its national human resources and benefits operations take place,
including for the Plan, and are administered in this judicial
district in Erlanger, Kentucky.
Catholic Health is the third-largest health system in the United
States offering medical care through numerous hospitals, clinics,
and health centers. The administrative Committee is the Plan
administrator and is a fiduciary under ERISA pursuant to 29 U.S.C.
sections 1002 and 1102.[BN]
The Plaintiff is represented by:
Theodore J. Schneider, Esq.
Jeffrey S. Goldenberg, Esq.
GOLDENBERG SCHNEIDER, LPA
4445 Lake Forest Drive, Suite 490
Cincinnati, OH 45242
Telephone: (513) 345-8291
Facsimile: (513) 345-8294
E-mail: tschneider@gs-legal.com
jgoldenberg@gs-legal.com
- and -
James E. Miller, Esq.
Laurie Rubinow, Esq.
James C. Shah, Esq.
Alec J. Berin, Esq.
Kolin C. Tang, Esq.
SHEPHERD FINKELMAN MILLER & SHAH, LLP
65 Main Street
Chester, CT 06412
Telephone: (860) 526-1100
Facsimile: (866) 300-7367
E-mail: jmiller@sfmslaw.com
lrubinow@sfmslaw.com
jshah@sfmslaw.com
aberin@sfmslaw.com
ktang@sfmslaw.com
CONSOL ENERGY: Fitzwater Appeals Ruling in ERISA Suit to 4th Cir.
-----------------------------------------------------------------
Plaintiffs Benny Fitzwater, et al., filed an appeal from a court
ruling in the lawsuit entitled Benny Fitzwater, et al. v. CONSOL
Energy, Inc., et al., Case No. 2:16-cv-09849, in the U.S. District
Court for the Southern District of West Virginia at Charleston.
As previously reported in the Class Action Reporter on Jul. 15,
2020, the Hon. Judge John T. Copenhaver, Jr., entered an order:
1. denying the Plaintiffs' renewed motion for class
certification of:
all individuals who were participants or surviving
beneficiaries covered by the CONSOL Energy Inc. Retiree
Health and Welfare Plan, whose benefits were terminated in
2015, and to whom CONSOL did not offer the same transition
benefit provided to those participants who joined the Plan
on or after September 30, 2014; and
2. directing the Clerk to forward copies of this order to all
counsel of record and to any unrepresented parties.
The Court said, "Briefing of the Defendants' summary judgment was
already completed by the time the renewed motion was fully briefed
on June 22, 2020. The July 17, 2020 pretrial conference fast
approaches. Granting the renewed motion and reopening discovery
would again delay trial, currently set for August 4, 2020, well
into the fall and perhaps further. The plaintiffs have not offered
new evidence, 'materially changed or clarified circumstances,' or
any other ground on which to reopen the class certification issue
and postpone resolution of this case even further. Accordingly, the
court finds no basis to grant the plaintiffs' renewed motion."
The renewed motion seeks to certify a narrower class purportedly
not yet addressed by the court, comprised only of those retirees
(i.e., Retiree Welfare Plan participants) for whom the plaintiffs
contend that CONSOL denied the new pro-rated cash transition
benefit based on "claims experience."
The appellate case is captioned as Benny Fitzwater v. CONSOL
Energy, Inc., Case No. 20-388, in the United States Court of
Appeals for the Fourth Circuit.[BN]
Petitioners BENNY FITZWATER, CLARENCE BRIGHT, EMMETT CASEY, JR.,
ALLAN H. JACK, SR., and ROBERT H. LONG, on behalf of themselves and
others similarly situated, are represented by:
Samuel Brown Petsonk, Esq.
PETSONK PLLC
101 Ramey Court, P. O. Box 1045
Beckley, WV 25802
Telephone: (304) 900-3171
E-mail: sam@msjlaw.org
- and -
Bren Joseph Pomponio, Esq.
Aubrey Sparks, Esq.
MOUNTAIN STATE JUSTICE
1217 Quarrier Street
Charleston, WV 25301-0000
Telephone: (304) 344-3144
E-mail: bren@msjlaw.org
Respondents CONSOL ENERGY, INCORPORATED, CONSOLIDATION COAL
COMPANY, FOLA COAL COMPANY, LLC, KURT SALVATORI, CONSOL OF
KENTUCKY, INCORPORATED, CONSOL BUCHANAN MINING COMPANY, LLC, and
CONSOL PENNSYLVANIA COAL COMPANY, LLC, are represented by:
Alexis Bates, Esq.
Katherine M. Funderburg, Esq.
Joseph J. Torres, Esq.
JENNER & BLOCK, LLP
353 North Clark Street
Chicago, IL 60654-3456
Telephone: (312) 840-7577
E-mail: abates@jenner.com
kfunderburg@jenner.com
jtorres@jenner.com
- and -
Jennifer Anderson Hill, Esq.
STEPTOE & JOHNSON PLLC
11 Grandview Circle
Canonsburg, PA 15317
Telephone: (304) 353-8132
E-mail: jennifer.hill@steptoe-johnson.com
- and -
Charles F. Johns, Esq.
STEPTOE & JOHNSON PLLC
400 White Oaks Boulevard
Bridgeport, WV 26330
Telephone: (304) 933-8149
E-mail: charles.johns@steptoe-johnson.com
- and -
Michael Deering Mullins, Esq.
STEPTOE & JOHNSON PLLC
P. O. Box 1588
Charleston, WV 25326-1588
Telephone: (304) 353-8157
E-mail: michael.mullins@steptoe-johnson.com
CONTINENTAL CASUALTY: Denies Coverage for COVID Loss, Motiv Says
----------------------------------------------------------------
MOTIV GROUP, INC. v. CONTINENTAL CASUALTY COMPANY, Case No.
3:20-cv-08206-BRM-DEA (D.N.J., July 2, 2020), is brought on behalf
of the Plaintiff and all others similarly situated against the
Defendant related to insurance policies that insure the Plaintiff's
properties, business operations, and potential liability in
connection with its business operations.
The insurance policies include: Business Income coverage, Extra
Expense coverage, and coverage for loss due to the actions of a
Civil Authority, and contains no relevant virus exclusion.
Motiv operates a retail establishment and has two locations: a
store and a stock room.
The Plaintiff is a small business that purchased the Defendant's
insurance policy and made premium payments for a policy that, in
the event of a catastrophe requiring a shutdown of business
operations, would require the Defendant to honor their contractual
obligation to provide coverage. In March 2020, such a catastrophe
took place when the Plaintiff was forced to close its digital
marketing businesses due to the COVID-19 pandemic.
In response to the business interruption claims filed by the
Plaintiff and thousands of other class members resulting from the
COVID-19 pandemic, the Defendant has systematically denied and
continue to deny and refuse to provide payment for insurance claims
for coverage for similar losses and expenses by insureds holding
policies that are, in all material respects, identical, according
to the complaint.
Continental is an Illinois business corporation with its principal
place of business in Chicago, Illinois. Continental is an insurance
company engaged in the business of selling insurance contracts to
commercial entities, such as the Plaintiff, in California and
across the country, including in states like New Jersey.[BN]
The Plaintiff is represented by:
Lawrence E. Bathgate, II, Esq.
John J. Reilly, Esq.
Ryan M. Farrell, Esq.
BATHGATE, WEGENER & WOLF, P.C.
One Airport Road
P.O. Box 2043
Lakewood, NJ 08701
Telephone: (732) 363-0666
E-mail: lbathgate@bathweg.com
jreilly@bathweg.com
rfarrell@bathweg.com
- and -
Adam M. Moskowitz, Esq.
Adam A. Schwartzbaum, Esq.
Howard M. Bushman, Esq.
THE MOSKOWITZ LAW FIRM, PLLC
2 Alhambra Plaza, Suite 601
Coral Gables, FL 33134
Telephone: (305) 740-1423
E-mail: adam@moskowitz-law.com
adams@moskowitz-law.com
howard@moskowitz-law.com
- and -
William F. "Chip" Merlin, Jr., Esq.
Rene M. Sigman, Esq.
Christina Phillips, Esq.
Rene M. Sigman, Esq.
MERLIN LAW GROUP
777 S. Harbour Island Blvd., Suite 950
Tampa, FL 33602
Telephone: (813) 229-1000
Facsimile: (813) 229-3692
E-mail: cmerlin@MerlinLawGroup.com
mmoore@merlinlawgroup.com
rsigman@MerlinLawGroup.com
cphillips@merlinlawgroup.com
CVS PHARMACY: Falsely Markets Pain Acetaminophen, Youngblood Says
-----------------------------------------------------------------
Brian Youngblood, individually and on behalf of all others situated
v. CVS PHARMACY, a Rhode Island Corporation, Case No. 2:20-cv-06251
(C.D. Cal., July 14, 2020), alleges that the Defendant violated the
False and Misleading Advertising Law, Consumer Legal Remedies Act,
Unfair Competition Law by making misleading statements in order to
induce consumers into purchasing Infants' Pain & Fever
Acetaminophen.
The Plaintiff contends that the Defendant continues to make
misleading statements to sell the Product on a false premise, and
in marketing, advertising, labeling, and packaging of the Product.
As a whole, CVS's private label products are generally more
profitable for CVS than the name-brand products it sells. During
some or all of the Class Period, the "CVS Health" private label was
the retail chain's leading brand, generating sales two times higher
than the next brand. Included in Defendant's CVS Health portfolios
are over-the counter pain reliever and fever reducers, including
CVS Health Infants' Product. CVS positions its private label
product as a "national brand equivalent," selling it alongside
brand-name acetaminophen products, such as Infants' Tylenol and
Children's Tylenol.
The Plaintiff asserts that giving a child too much acetaminophen
can be dangerous and even fatal, a problem that terrifies parents
and causes them to be extra careful when buying medicine for their
young children and babies. The U.S. Food and Drug Administration
warns parents and caregivers to "be very careful when you're giving
your infant acetaminophen."
According to the complaint, the Defendant's packaging for its
Infants' Product exploits parents' fear of giving their children an
improper (and possibly fatal) dosage or formulation. The Defendant
does this by designing its packaging to mislead a parent into
thinking that the Infants' Product is specially-formulated--or
otherwise possesses some unique medicinal quality--to make it
specifically appropriate for infants as opposed to older children.
The front of a box of the Infants' Product contains representations
(the product name and photo of a parent holding up a small child)
which are likely to deceive consumers into believing the Infants'
Product is specially formulated for infants or otherwise unique for
infants.
In reality, the medicine contained in a bottle of Infants' Product
contains the same active ingredient and formulation (i.e. 160 mg
per 5 mL of acetaminophen) that is contained in a bottle of
Defendant's Children's Pain & Fever Acetaminophen Oral Suspension
("Children's Product"), according to the complaint. Thus, there is
no difference in the medicine sold in the Infants' Product and the
Children's Product. But the Defendant does not disclose this
important information anywhere on the Infants' Product packaging
(though the front of the box does explicitly compare the Product to
name-brand Infants' Tylenol). This omission causes consumers
economic damage because CVS charges substantially more money for
its Infants' Product--up to six times as much per ounce--than for
its Children's Product. Yet there is no reason for this dramatic
price increase, as both medicines are identical.
The Plaintiff purchased CVS Health Infants' Pain & Fever
Acetaminophen.
CVS pharmacy is a drugstore chain with over 9,000 retail locations
throughout the United States, more than 1,100 of which are in
California.[BN]
The Plaintiff is represented by:
Gillian L. Wade, Esq.
Sara D. Avila, Esq.
Marc A. Castaneda, Esq.
MILSTEIN JACKSON FAIRCHILD & WADE, LLP
10250 Constellation Blvd., Suite 1400
Los Angeles, CA 90067
Phone: (310) 396-9600
Fax: (310) 396-9635
Email: gwade@mjfwlaw.com
savila@mjfwlaw.com
mcastaneda@mjfwlaw.com
- and -
Hank Bates, Esq.
David Slade, Esq.
CARNEY BATES & PULLIAM, PLLC
519 W. 7th Street
Little Rock, AR
Phone: (501) 312-8500
Facsimile: (501) 312-8505
Email: hbates@cbplaw.com
dslade@cbplaw.com
DALLAS COUNTY, TX: George Floyd Protesters File Class Action
------------------------------------------------------------
Matt Howerton, writing for WFAA, reports that three women who were
arrested in Dallas as they protested the death of George Floyd are
now taking both the city and Dallas County to court, in hopes of
doing away with a state law that resulted in dozens of protesters
being jailed.
The lawsuit was filed in a federal court and is a class action
suit.
The class-action nature of the suit leaves the door open for many
other protesters arrested under similar circumstances to join.
The three main plaintiffs are Yolanda Dobbins, Megan Nordyke, and
Lily Godinez.
Their demands, which are laid out in the suit, do not center around
monetary relief.
If successful, the three women want a federal court to declare a
state charge known as "riot participation" as unconstitutional.
Among other things, they demand use-of-force training and
de-escalation tactics for every law enforcement officer employed by
the city and Dallas County.
'I was arrested for something that is our right to do.'
Dobbins is 55 and accompanied her teenage daughter to a May 30th
protest in Dallas.
Joining the protest was her daughter's idea, Dobbins told WFAA. Her
main goal as a mother was to go and watch over her.
But as the protest headed towards I-35 E, the lawsuit reads that
police began to fire non-lethal projectile rounds into the crowd.
Dobbins told WFAA that she and her daughter were separated for a
brief moment and that she began filming a man who was having an
encounter with police.
"As Ms. Dobbins yelled for her daughter," the suit reads, police
surrounded her and arrested her for obstructing a highway even
though the lawsuit reads that she was nowhere near the highway at
all.
"I was arrested for something that is our right to do," Dobbins
said tearfully. "For my daughter to stand there and scream while
seeing me be arrested was traumatizing."
Dobbins was booked into Dallas County jail. She herself is a former
county employee, retired after working with Parkland Hospital.
"We all relied on each other's strength to get us through the night
because the treatment we received inside the jail was very
disheartening," Dobbins said.
The lawsuit reads that Dobbins was denied a cup of water by a
jailer who told her, "You should have thought about that before you
came down here to protest."
Dobbins told WFAA that she and other inmates had to drink out of
the sink.
The 55-year-old has never been arrested in her life.
"It's still very emotional. All my life, I've tried to be a good
citizen."
'I felt like I was going to be made an example of.'
Megan Nordyke's arrest was caught on WFAA's cameras.
The area attorney attended a protest in downtown Dallas as an
unofficial legal observer to diffuse tensions and discourage
provocations between Dallas police and protesters, the suit reads.
Nordyke told WFAA that she was on Young Street in front of the city
hall when an officer pointed a weapon at her.
It's not specified in the suit if it was a non-lethal weapon or a
gun.
Nordyke said that she went to sit down in front of the city hall.
"At that point, I realized that this was serious. This felt like a
warzone," Nordyke said.
While she was sitting, Nordyke said that an officer in riot gear
came up to her and said she was being arrested for not following
instructions.
Unaware of what commands she hadn't followed or may have not heard
(many of the officers were wearing gas masks per Nordyke) she
questioned what she did wrong.
"An officer told me that I didn't get out of the way," Nordyke
said. "But there was no one around me."
Nordyke was charged with riot participation, however, in the video
that WFAA shot, it doesn't appear that Nordyke is a threat at all.
"I felt like I was going to spend a long time in court trying to
clear myself of these charges that were unjustly brought against
me."
Riot participation
All three cases involving each woman were ultimately dismissed by
the Dallas County District Attorney's Office.
Attorneys David Henderson and Jay Ellwanger said that's a win, but
they want even greater change to follow.
Both attorneys feel like the state charge of "riot participation"
provides police too much power, being able to punish many for the
actions of just some.
"They didn't do anything wrong," Henderson said. "The biggest
concern we have for this case is that the blue shield has no
jurisdiction."
Ellwanger said that the law hadn't be challenged in 40 years.
Both hope that their efforts spark similar challenges in states
with similar laws.
"We think that this is the time and this is the way to challenge
it," Ellwanger said.
By WFAA's count, at least 35 people were arrested for riot
participation during the first week of protests surrounding George
Floyd's death.
The City of Dallas, The Dallas Police Department, and the Dallas
County District Attorney's office declined to comment on pending
litigation. [GN]
DELOITTE CONSULTING: Bozin Negligence Suit Removed to N.D. Ohio
---------------------------------------------------------------
The class action lawsuit captioned as DANIEL BOZIN, individually
and on behalf of all other similarly situated, et al. v. DELOITTE
CONSULTING LLP, Case No. CV-20-93277 (Filed May 21, 2020), was
removed from the Ohio Court of Common Pleas for Cuyahoga County to
the U.S. District Court for the Northern District of Ohio on July
2, 2020.
The Northern District of Ohio Court Clerk assigned Case No.
1:20-cv-05070-LJL to the proceeding.
Plaintiffs Daniel Bozin, Timothy Smith, and Alexandria Polichena
filed a Class Action Complaint in the State Court on May 21, 2020.
The Plaintiffs filed a First Amended Class Action Complaint for
Damages on May 28, 2020.
The Amended Complaint asserts claims of negligence and invasion of
privacy arising from the alleged potential exposure of Pandemic
Unemployment Assistance (PUA) claimants' personal information as a
result of Deloitte's administration of states' PUA application
processes.
Deloitte offers consulting services. The Company provides
consulting services in the areas of human capital, strategy, audit,
financial advisory, tax, management, and technology
integration.[BN]
The Plaintiff is represented by:
Marc E. Dann, Esq.
Brian D. Flick, Esq.
DANN LAW
P.O. Box 6031040
Cleveland, OH 44103
E-mail: notices@dannlaw.com
mdann@dannlaw.com
bflick@dannlaw.com
- and -
Thomas A. Zimmerman, Jr., Esq.
ZIMMERMAN LAW OFFICES, P.C.
77 W. Washington Street, Suite 1220
Chicago, IL 60602
E-mail: tom@attorneyzim.com
The Defendant Deloitte Consulting LLP is represented by:
Daniel R. Warren, Esq.
Lisa M. Ghannoum, Esq.
Dante A. Marinucci, Esq.
BAKER HOSTETLER LLP
127 Public Square, Suite 2000
Cleveland, OH 44114
Telephone: 216 621 0200
E-mail: dwarren@bakerlaw.com
lghannoum@bakerlaw.com
dmarinucci@bakerlaw.com
- and -
Phyllis B. Sumner, Esq.
Elizabeth D. Adler, Esq.
Alvin Y. Lee, Esq.
KING & SPALDING LLP
1180 Peachtree Street, NE, Suite 1600
Atlanta, GA 30309
E-mail: psumner@kslaw.com
eadler@kslaw.com
alvin.lee@kslaw.com
DICK'S SPORTING: Fails to Pay Minimum & OT Wages, Carroll Alleges
-----------------------------------------------------------------
ALE CARROLL, on behalf of herself and the Class members v. DICK'S
SPORTING GOODS, INC., Case No. 1:20-cv-00928-AWI-SAB (E.D. Cal.,
July 2, 2020), alleges that the Defendant failed to pay for all
hours worked, to pay minimum wage and liquidated damages, and to
pay overtime wages under the California Labor Code.
The Plaintiff contends that she and Class members wait in
security-check lines at the end of their shifts after they are
off-the-clock. They are required to wait on average two-to-five
minutes, and sometimes even longer. This time spent waiting in the
security check lines is compensable, but nevertheless goes unpaid,
the Plaintiff alleges.
The Plaintiff was employed as a non-exempt cashier by the Defendant
at Dick's Sporting Goods in Fresno, California, from November 2017
to June 2019.
The Defendant operates a chain of retail stores throughout the
United States and California. The Defendant employs hundreds of
hourly non-exempt workers similarly situated to Plaintiff across
these facilities.[BN]
The Plaintiff is represented by:
Carolyn Hunt Cottrell, Esq.
David C. Leimbach, Esq.
Kristabel Sandoval, Esq.
William M. Hogg, Esq.
SCHNEIDER WALLACE
COTTRELL KONECKY LLP
2000 Powell Street, Suite 1400
Telephone: (415) 421-7100
Facsimile: (415) 421-7105
E-mail: ccottrell@schneiderwallace.com
dleimbach@schneiderwallace.com
ksandoval@schneiderwallace.com
whogg@schneiderwallace.com
DIRECTV: Attys. Request Court Permission to Contact 9,100 Customers
-------------------------------------------------------------------
Reuters reports that one of the big disincentives for plaintiffs'
lawyers contemplating mass consumer arbitration has always been the
cost of finding clients. It's an economics thing. You don't want to
spend a lot of money to attract and vet claims worth only a few
hundred bucks.
But when you already have names and contact information for 9,100
prospective claimants--straight from the prospective defendant, no
less--that's a whole different story.
Such is the case for three plaintiffs' firms--Lieff Cabraser
Heimann & Bernstein, Meyer Wilson and Wade Grunberg & Wilson--that
filed a Telephone Consumer Protection Act class action against
DirecTV way back in 2015. In the unbelievably circuitous course of
the litigation, as I'll explain, DirecTV shared confidential
information from about 9,100 customers with an expert witness the
company brought in to oppose certification of the TCPA class.
Plaintiffs' lawyers contended that the data-sharing was a violation
of customers' privacy rights under the Satellite Television
Extension and Localism Act (STELA). They tried to add a STELA claim
to the TCPA class action, but DirecTV persuaded the 11th U.S.
Circuit Court of Appeals (801 Fed.Appx. 723) that its subscriber
agreements mandate arbitration.
So now Lieff and the other plaintiffs' firms want U.S. District
Judge Mark Cohen of Atlanta to authorize them to reach out to those
9,100 or so DirecTV customers to ask if they'd like to bring
individual arbitration demands for the alleged STELA violations.
The plaintiffs' lawyers already have the data that DirecTV shared
with its expert, which DirecTV produced after a previous order from
Judge Cohen. But because the information is covered by a
confidentiality order, they filed a motion on July 2 asking Judge
Cohen to clarify or amend the protective order to allow them (or
the court) to notify DirecTV's customers of their prospective
arbitration claim.
Otherwise, the plaintiffs' brief said, those customers will never
know that the company may have breached their privacy rights
because DirecTV has averted a class action. "The rights of each one
of those persons will never be vindicated, nor will DirecTV's
allegedly illegal behavior be challenged," the brief said. "Surely,
DirecTV should not be rewarded for its misconduct with a ‘get out
of jail free' card."
DirecTV counsel Andrew Pincus and Hans Germann of Mayer Brown
forwarded my query on the motion to DirecTV parent AT&T, which sent
an email statement: "We oppose this attempt to get our customers'
private information to pursue additional baseless claims against
us, and we will fight it in court."
The underlying TCPA class action was brought on behalf of a
plaintiff who received telemarketing calls from a DirecTV
contractor even though he was on the national do-not-call registry
and had specifically asked not to receive calls from DirecTV. (The
named plaintiff was not a DirecTV customer so the company could not
compel arbitration of his claim.)
To assist its expert witness opposing class certification, DirecTV
prepared a data file comparing the phone numbers dialed by its
marketing contractor and phone numbers associated with its
customers. (The TCPA permits marketing calls to people with whom
companies have an established business relationship.) The data
file, according to Judge Cohen's 2017 class certification decision
(320 F.R.D. 582) contained names, phone numbers and account
information for more than 9,100 DirecTV customers.
STELA prohibits the disclosure of satellite company customers'
personal identifying information without their prior consent.
DirecTV cited the law when plaintiffs' lawyers first demanded to
see the data underlying the report by the company's expert.
Plaintiffs countered that the company had already violated STELA by
sharing the data with its expert.
Judge Cohen agreed in his class certification ruling that by giving
customer information to the expert, DirecTV appeared to have
provoked the issue of STELA's "consent to disclose" provisions.
Judge Cohen ordered DirecTV to give the data to plaintiffs lawyers.
(The 11th Circuit subsequently vacated part of Judge Cohen's class
certification decision in a 2019 ruling that did not address the
STELA allegations.)
Plaintiffs amended their TCPA complaint to add a new plaintiff--one
of the DirecTV customers whose data was disclosed--and a new STELA
claim. Judge Cohen denied the company's motion to compel
arbitration, but the 11th Circuit overturned that decision in
February, citing the new plaintiff's subscriber agreement with
DirecTV (801 Fed.Appx. 723).
In the July 2 motion requesting permission to contact the other
9,100 DirecTV customers whose data was in the file shared with the
company's expert, plaintiffs' lawyers said the protective order
already permits them to send notice to the company's subscribers
because their potential STELA claims arise from the TCPA
litigation. Alternatively, the motion said, Judge Cohen should
amend the confidentiality order in the interest of justice because
the customer will not otherwise know about claims that could be
worth more than $1,000 in statutory damages and attorneys' fees.
"All we want to do is inform these folks that they have these
claims so they can pursue them and hold DTV to its promises," said
Jonathan Selbin of Lieff Cabraser in an email. "Having secretly
violated these consumers' statutory privacy rights and successfully
forced them to arbitrate those claims, DirecTV now wants to ensure
they never even learn they have such claims so they cannot even
arbitrate them. It's like a football team choosing the playing
field, the rules, and the refs, and then not even telling the other
team there's even a game." [GN]
DRAPER JAMES: Seeks Dismissal of "Free Dress" Class Action
----------------------------------------------------------
Porter Wells, writing for Bloomberg Law, reports that Reese
Witherspoon and her clothing line Draper James LLC have asked a
federal judge in California to dismiss a proposed class action
brought over an Instagram post that promised free dresses to
teachers as a "thank you" for their hard work during the pandemic.
The post prompted teachers to "apply" before midnight April 5 and
noted that the offer was valid "while supplies last," Draper James
told the U.S. District Court for the Central District of California
on July 10.
The response to the giveaway overwhelmed the company, which had set
aside only 250 dresses for winners. Draper James granted a 30%
discount to the hundreds of thousands of non-winner applicants,
according to the company's filing.
The plaintiffs allege that Draper James entered into a contract
each of nearly one million teachers who responded to the giveaway,
because they entered personal identifying information in exchange
for a promised dress.
That interpretation defies "common sense," the plain language of
the post, and language on other webpages associated with the
giveaway, Draper James said. A frequently asked questions page
linked in the post's caption stated that winners would be selected
via lottery, it said.
The plaintiffs further accuse Draper James of using the giveaway to
assemble a large and valuable customer list for the company's own
use or for sale to third parties.
But the complaint doesn't allege that the named plaintiffs entered
into the giveaway or submitted any of their own information, Draper
James said. The complaint only states the names of the three female
plaintiffs and that they are "each natural persons," the company
said.
The complaint lacks any mention of their participation in the
giveaway, whether or not they actually viewed the post and relied
on it to their detriment, or if they "suffered any actual harm,"
according to the motion to dismiss.
"No amendment to the complaint can make the Instagram post say
anything other than that a limited supply of dresses were being
given away to lucky teachers who applied and were selected as
winners," Draper James said.
Gibson Dunn & Crutcher LLP represent Draper James and Witherspoon.
Whatley Kallas LLP and the Wood Law Firm LLC represent the
plaintiffs.
The case is Galvez v. Draper James LLC, C.D. Cal., No. 20-cv-04976,
motion to dismiss filed 7/10/20. [GN]
EL AL ISRAEL: Faces Class Action Over Unpaid Ticket Refunds
-----------------------------------------------------------
Michal Raz-Chaimovitz, writing for Globes, reports a $400 million
class action suit has been filed against El Al Israel Airlines Ltd.
(TASE: ELAL) in the Central District Court in Lod for not refunding
money to passengers who have paid for tickets for canceled flights.
This follows similar suits in Israel against foreign airlines.
Estimates are that the Israeli airline holds NIS1.5 billion of
money of passengers who have paid for flights that have been
canceled since the coronavirus outbreak in March. This sum
continues to grow with El Al's fleet grounded until July 31 and
that date almost certain to be extended.
The class action suit filed by Advs. Oded Steiff and Tamir Shenhav
of the Steiff, Evron, Sides, Borochov & Co. law firm on behalf of
the plaintiff claims that El Al's management has behaved in a way
that expresses an 'anti-service' approach while expecting customers
to show endless patience to an approach which ignores them. The
amount of the class action suit equals the amount of money that El
Al is asking for in loans and government assistance.
El Al has notified the Tel Aviv Stock Exchange (TASE) about the
class action suit, saying that it is being sued for both not
refunding the money and mot informing passengers that they are
entitled to the refunds. El Al said, "We will study the suit and
file a response as required."
In its notification to the TASE, El Al also points out that the
Aviation Law has been amended, granting airlines an extension until
August 31, during which time they do not have to refund canceled
flights.
Adv. Steiff stresses that not only have the passengers not received
refunds but they have also not received any customer service to
tell them about the situation. The plaintiff who they are
representing is entitled to a refund of NIS 3,700. When enquiring
about his claim, he received the following telephone recording.
"Following the coronavirus outbreak our offices are currently
closed and work is being conducted on an emergency footing. Please
keep any tickets at this stage for future use." The recording added
that they ticket could be used, "following the return of scheduled
operations."
Adv. Steiff describes this recording, which was heard by hundreds
of people holding tickets for canceled flights, as 'contemptible.'
He added, "In contrast to the situation before the lawsuit was
filed in which everybody who contacted El Al received an automatic
answer ' we'll get back to you when we feel like it,' El Al will
now be required to give an account to passengers. The effectiveness
of the lawsuit is the message to El Al is that it cannot wave away
or shrug off or play for time just as it fancies."
But such a suit could last for years?
"It doesn't have to last years. We don't see any way in which El Al
will deny its obligation to refund customers their money. El Al is
supposed to propose ways to a solution as part of a timetable. El
Al has a toolbox with which it can cope with this suit without
collapsing financially or without it being an obstacle on its way
to recovery."
In that tool box, Adv. Steiff mentions hundreds of thousands of
members of its frequent flyers loyalty club who could be offered
alternative tickets that will express their readiness to wait and
keep their purchasing power through passenger points, and to offer
incentive coupons but mainly to provide consumers with a response.
"We expect El Al to sort through their customers and hold a
dialogue with them even if we are talking about tens or hundreds of
thousands of phone calls."
El Al claims it doesn't have the staff for customer service
"El Al needs to understand the importance of this. Its coffers are
not empty and the money it has can keep people. The more it
conducts a dialogue with passengers, at a conservative estimate, it
will pay out less cash. El Al needs to make people stay loyal even
though they have received a slap and so far it has failed the test
of initiating a response. One would have expected it to control the
narrative from the start but it hasn't done that and because it
hasn't done that you have to bring in something that has power, and
that's a class action suit supported by legal process. If El Al
takes its customers for granted, then it is a company with no right
to exist and if there will be a ruling instructing it to pay, then
it will have to cope with this. I hope that whoever buys it, pays
better attention to its customers." [GN]
EMC INSURANCE: Class Action Seeks Premium Refunds Due to COVID-19
-----------------------------------------------------------------
Stephanie K. Jones, writing for Insurance Journal, reports that in
a class action lawsuit, a Michigan restaurant and bar has
challenged its insurer over commercial policy premium payments that
covered the time it was forced to shut down during the COVID-19
pandemic. The lawsuit requests premium refunds and other relief.
In Flo's Pizzeria & Sports Bar v. EMC Insurance, Belmont,
Michigan-based Flo's Pizzeria seeks restitution not only for itself
but for all members of a class that bought commercial insurance
policies from EMC, including commercial liability, commercial auto
and commercial umbrella, and have not been given any premium relief
for the periods they were ordered to close their doors by public
authorities in order to slow the spread of the pandemic.
Flo's Pizzeria cited the example of auto insurers that have offered
refunds and discounts to drivers nationwide after the widespread
stay at home orders caused an extreme drop in the miles driven by
auto policyholders across the nation.
"Like automobile policyholders, as a result of the widespread
stay-at-home orders, Plaintiff has experienced a 'radical
reduction' in its exposure to potential claims under the Policy, as
evidenced by its reduced hours of operation, limited operation, and
receipts during the effective period for the stay-at-home orders,"
the lawsuit states.
Flo's Pizzeria purchased commercial liability, commercial auto and
commercial umbrella policies from EMC that are effective from Jan.
23, 2020, to Jan. 23, 2021.
Due to Michigan's stay at home order, Flo's closed its dining room
to the public from March 16 through June 8, resulting in a
significant revenue loss, as well as greatly reduced exposure to
loss, the suit maintains. Because Flo's Pizzeria "has experienced a
significantly lower exposure rate due to COVID-19," it "overpaid
for its premiums when the policies were written," the lawsuit
states.
Businesses all over the country have experienced similar losses,
the lawsuit explains. "Class members are so numerous that their
individual joinder is impracticable. The precise number of Class
members and their identities are unknown to Plaintiff at this time,
but EMC is in the top 60 property/casualty organizations in the
United States," it states.
The suit alleges that EMC has disregarded provisions in its
policies that state "the premium is an estimate, that it is
possible to overpay." As such, "EMC is required to return
overpayments by the class," the suit says.
Among other things, the lawsuit alleges breach of contract, unjust
enrichment and breach of good faith by EMC and requests declaratory
and injunctive relief, as well as a jury trial.
The lawsuit was filed on July 10 in the U.S. District Court for the
Western District of Michigan, case number 1:20-cv-00626.
In an emailed reply to Insurance Journal, EMC Insurance Director of
Community Involvement Sarah Buckley said the company does not
comment on pending litigation. [GN]
ENPHASE ENERGY: ClaimsFiler Reminds of August 17 Deadline
---------------------------------------------------------
ClaimsFiler, a FREE shareholder information service, reminds
investors of pending deadlines in the following securities class
action lawsuits:
Enphase Energy, Inc. (ENPH)
Class Period: 2/26/2019 - 6/17/2020
Lead Plaintiff Motion Deadline: August 17, 2020
SECURITIES FRAUD
To learn more, visit
https://www.claimsfiler.com/cases/view-enphase-energy-inc-securities-litigation
ProAssurance Corporation (PRA)
Class Period: 4/26/2019 - 5/7/2020
Lead Plaintiff Motion Deadline: August 17, 2020
SECURITIES FRAUD
To learn more, visit
https://www.claimsfiler.com/cases/view-proassurance-corporation-securities-litigation
If you purchased shares of the above companies and would like to
discuss your legal rights and your right to recover for your
economic loss, you may, without obligation or cost to you, contact
us toll-free (844) 367-9658 or visit the case links above.
If you wish to serve as a Lead Plaintiff in the class action, you
must petition the Court on or before the Lead Plaintiff Motion
deadline.
About ClaimsFiler
ClaimsFiler has a single mission: to serve as the information
source to help retail investors recover their share of billions of
dollars from securities class action settlements. At
ClaimsFiler.com, investors can: (1) register for free to gain
access to information and settlement websites for various
securities class action cases so they can timely submit their own
claims; (2) upload their portfolio transactional data to be
notified about relevant securities cases in which they may have a
financial interest; and (3) submit inquiries to the Kahn Swick &
Foti, LLC law firm for free case evaluations.
To learn more about ClaimsFiler, visit www.claimsfiler.com [GN]
ENVIROCHROME INTERIORS: Faces Tristate Suit in New York Sup. Ct.
----------------------------------------------------------------
A class action lawsuit has been filed against Envirochrome
Interiors, Inc., et al. The case is captioned as TRISTATE PLUMBING
SERVICES CORP., ON BEHALF OF ITSELF AND ALL OTHERS SIMILARLY
SITUATED v. ENVIROCHROME INTERIORS, INC., ET AL., Case No.
652869/2020 (N.Y. Sup., New York Cty., June 29, 2020).
Established in 1974 by Gerard Rothschild, Envirochrome started as
an interior finishing company. Twelve years later, when Brian
Rothschild took the reins, Envirochrome was transformed into a full
service general contracting and construction management firm
servicing clients from the commercial, luxury retail, high-end
residential and development communities.[BN]
EQUITY EXPERTS: Class Action Status Granted in FDCPA Lawsuit
------------------------------------------------------------
Daniel Miske, Esq.--daniel.miske@huschblackwell.com--of Husch
Blackwell LLP, in an article for JDSupra, reports that plaintiffs
live in Ashbrooke Property Owners Association ("Association") and
missed their annual assessment payments of $115 for three straight
years. The Association hired Defendant, Equity Experts, to collect
the past due amounts. Under the Declaration the past due
assessments accrued interest at the rate of 18% per annum, plus the
Association could charge a late fee and the Owner was "liable to
the Association for all costs and attorney's fees . . ." Equity
Experts added fees for their constant contact package and their
Pre-Foreclosure package in the amount of $750 and $1,495
respectively. In December of 2013, Defendant advised Plaintiffs
that their balance was $3,199.60, but that if they did not pay
within 10 days the balance may be at least $6,644.60. Plaintiffs
filed suit seeking class certification because the interest rate
charged exceeded the amount allowed under Georgia law and because
the demands were in excess of sums allows under the Association
documents.
Court
1. The Georgia Federal District Court held that the Plaintiff met
the four requirements for class certification under Federal Rule
23(a), specifically:
1. Numerosity - Plaintiffs allege more than 100 class members and
40 is generally sufficient;
2. Commonality - the excess interest rate charges is common and
can be "uniformly determined" and the excess sums charges is a
close decision, but for now the Plaintiffs meet this "low burden";
3. Typicality - The claims of Plaintiffs are typical of the
claims of the class; and
4. Adequate Representation - the Plaintiffs can adequately
protect the interests of those they purport to represent, and the
Court did not find any conflict of interest as argued by
Defendant.
2. Once the Rule 23(a) requirements are met, a plaintiff must then
meet the Rule 23(b) requirements - Plaintiffs must show questions
of law or fact common to class members predominate over any
questions affecting only individual members and that class action
is superior to other methods of adjudicating the case. Here the
Court found that both the Predominance and Superiority tests were
met.
Lessons
1. The FDCPA is full of landmines, make sure if you recognize an
issue, are sued, or are going to send a matter out for collection,
that you hire an attorney knowledgeable in the FDCPA (Fair Debt
Collection Practices Act).
2. Relying on something being OK because it has always worked out
in the past is a mistake and a logical fallacy. Just because you
have not been caught or been sued in the past for FDCPA violations
does not mean that it won't happen in the future.
Usry v. EquityyExperts.org, LLC, N. CV 116-010 (S.D Ga. Mar 5,
2020) [GN]
ERIE INSURANCE: Denies Coverage for COVID-19 Losses, Hello Claims
-----------------------------------------------------------------
HELLO HOSPITALITY IV, LLC D/B/A ST ARNOLDS, HELLO HOSPITALITY III,
LLC D/B/A ST ARNOLDS MUSSEL BAR, and HELLO HOSPITALITY VI, LLC
d/b/a ST. ARNOLDS MUSSEL BAR BETHESDA v. ERIE INSURANCE PROPERTY
AND CASUALTY COMPANY D/B/A ERIE INSURANCE EXCHANGE, Case No.
3:20-cv-08215 (D.N.J., July 2, 2020), is brought on behalf of the
Plaintiffs and all others similarly situated against Erie related
to insurance policies that insure their properties, business
operations, and potential liability in connection with their
business operations.
The insurance policies include Income Protection coverage, Extra
Expense coverage, Contingent Business Interruption coverage, and
coverage for loss due to the actions of a Civil Authority, but do
not contain any exclusions for viruses such as COVID-19.
The Plaintiffs are small business that purchased Erie's insurance
policy and made premium payments for a policy that, in the event of
a catastrophe requiring a shutdown of business operations, would
require Erie to honor its contractual obligation to provide
coverage.
In March 2020, such a catastrophe took place when the Plaintiffs
were forced to close their restaurant businesses due to the
COVID-19 pandemic. All across the country, including in Maryland,
Washington, DC, and New Jersey, government authorities issued
closure orders to retail establishments, including the businesses
operated by Hello Hospitality, in an effort to stop the rapid
spread of the deadly COVID-19 virus. Orders from Civil Authorities
requiring businesses to close have resulted in massive losses to
businesses throughout the country.
As a result, many insureds, including the Plaintiffs, filed claims
for Income Protection coverage, Extra Expense coverage, and
coverage for losses due to the actions of a Civil Authority.
In response to the business interruption claims filed by the
Plaintiffs and thousands of other class members resulting from the
COVID-19 pandemic, Defendant Erie has systematically denied and
continues to deny and refuses to provide payment for insurance
claims for coverage for similar losses and expenses by insureds
holding policies that are, in all material respects, identical, the
Plaintiffs contend:
Hello Hospitality operates three restaurants: two in Washington DC
and one in Bethesda, Maryland.
Erie is an insurance company engaged in the business of selling
insurance contracts to commercial entities, such as the Plaintiffs,
in Pennsylvania and across the country, including in states like
New Jersey.[BN]
The Plaintiffs are represented by:
Lawrence E. Bathgate, II, Esq.
John J. Reilly, Esq.
Ryan M. Farrell, Esq.
BATHGATE, WEGENER & WOLF, P.C.
One Airport Road
P.O. Box 2043
Lakewood, NJ 08701
Telephone: (732) 363-0666
E-mail: lbathgate@bathweg.com
jreilly@bathweg.com
rfarrell@bathweg.com
- and -
Adam M. Moskowitz, Esq.
Adam A. Schwartzbaum, Esq.
Howard M. Bushman, Esq.
THE MOSKOWITZ LAW FIRM, PLLC
2 Alhambra Plaza, Suite 601
Coral Gables, FL 33134
Telephone: (305) 740-1423
E-mail: adam@moskowitz-law.com
adams@moskowitz-law.com
howard@moskowitz-law.com
- and -
William F. "Chip" Merlin, Jr., Esq.
Michael Howard Moore, Esq.
Rene M. Sigman, Esq.
Christina Phillips, Esq.
MERLIN LAW GROUP
777 S. Harbour Island Blvd., Suite 950
Tampa, FL 33602
Telephone: (813) 229-1000
Facsimile: (813) 229-3692
E-mail: cmerlin@MerlinLawGroup.com
mmoore@merlinlawgroup.com
rsigman@MerlinLawGroup.com
cphillips@merlinlawgroup.com
FARMER'S GROUP: Denies Coverage for COVID-19 Losses, Nora's Says
----------------------------------------------------------------
NORA'S STYLE SALON INC. v. FARMER'S GROUP, INC. D/B/A FARMERS
UNDERWRITERS ASSOCIATION and TRUCK INSURANCE EXCHANGE, Case No.
1:20-cv-22751-DPG (S.D. Fla., July 2, 2020), is brought on behalf
of the Plaintiff and all others similarly situated against the
Defendants related to insurance policies that insure its
properties, business operations, and potential liability in
connection with its business operations.
The insurance policies include: Business Income coverage, Extra
Expense coverage, and coverage for loss due to the actions of a
Civil Authority, and contains no relevant virus exclusion.
Nora's is a corporation organized under New York law with its
principal place of business located at 81 Old Tappan Road, in
Tappan, New York. Nora's operates a beauty salon.
The Plaintiff is a small business that purchased the Defendants'
insurance policy and made premium payments for a policy that, in
the event of a catastrophe requiring a shutdown of business
operations, would require the Defendants to honor their contractual
obligation to provide coverage. In March 2020, such a catastrophe
took place when the Plaintiff was forced to close its digital
marketing businesses due to the COVID-19 pandemic.
In response to the business interruption claims filed by the
Plaintiff and thousands of other class members resulting from the
COVID-19 pandemic, the Defendants have systematically denied and
continue to deny and refuse to provide payment for insurance claims
for coverage for similar losses and expenses by insureds holding
policies that are, in all material respects, identical, according
to the complaint.
Farmer's is an insurance company engaged in the business of selling
insurance contracts to commercial entities, such as the Plaintiff,
in New York, and in all fifty states, including in states like
Florida, and including by and through its
wholly-owned subsidiaries.
Defendant Truck is an insurance exchange organized under California
law with its principal place of business located at 6301 Owensmouth
Avenue, in Woodland Hills, California. Truck is a subsidiary of
Defendant Farmer's.[BN]
The Plaintiff is represented by:
Adam M. Moskowitz, Esq.
Adam A. Schwartzbaum, Esq.
Howard M. Bushman, Esq.
THE MOSKOWITZ LAW FIRM, PLLC
2 Alhambra Plaza, Suite 601
Coral Gables, FL 33134
Telephone: (305) 740-1423
E-mail: adam@moskowitz-law.com
adams@moskowitz-law.com
howard@moskowitz-law.com
- and -
William F. "Chip" Merlin, Jr., Esq.
Rene M. Sigman, Esq.
Christina Phillips, Esq.
Rene M. Sigman, Esq.
MERLIN LAW GROUP
777 S. Harbour Island Blvd., Suite 950
Tampa, FL 33602
Telephone: (813) 229-1000
Facsimile: (813) 229-3692
E-mail: cmerlin@MerlinLawGroup.com
mmoore@merlinlawgroup.com
rsigman@MerlinLawGroup.com
cphillips@merlinlawgroup.com
FIFTH THIRD: Court Dismisses Amended Harmon Class Suit
------------------------------------------------------
In the case, BILLIE ANN HARMON, on behalf of herself and others
similarly situated, Plaintiff, v. FIFTH THIRD BANCORP, Defendant,
Case No. 1:18-cv-00402 (S.D. Ohio), Judge Michael R. Barrett of the
U.S. District Court for the Southern District of Ohio, Western
Division, granted the Defendant Fifth Third Bank's Motion to
Dismiss the Plaintiff's Amended Class Action Complaint.
The Plaintiff has a personal Essential Checking account with one of
the Defendant's Kentucky branches. The Defendant is a
state-chartered, federally insured bank headquartered in Ohio, with
branches in several states, including Ohio, Michigan, Kentucky, and
Tennessee. The Plaintiff's lawsuit is based on her use of one of
Defendant's mobile banking products, "Mobile Deposit," using her
Essential Checking account.
The Defendant's Mobile Deposit product enables certain account
holders to deposit properly endorsed checks into certain types of
accounts with their mobile device's camera and Defendant's mobile
banking application. Mobile Deposit is governed by the Deposit
Account Rules & Regulations Agreement and Digital Services User
Agreement.
The first agreement, the Deposit Account Rules & Regulations
Agreement, contains a section titled "Funds Availability for
Transaction Accounts" that discusses the availability of different
types of deposits -- e.g., cash, transfers between Fifth Third
accounts, mobile deposits, electronic direct deposits, and wire
transfers -- for withdrawal. The second agreement, the Digital
Services User Agreement, made available to account holders through
the Defendant's mobile banking app or online.
Account holders have two options regarding how the deposit checks
using Mobile Deposit on the Defendant's banking app. The options
differ regarding the availability of the funds from deposited
checks and the service fee, or lack thereof, charged. The options
are Standard Availability Service, the app's default option, and
Immediate Funds Service, the app's non-default option that account
holders can elect.
Using the Standard Availability Service, account holders can
immediately obtain $100 of their total check deposits, made in any
manner (Banking Center, ATM, Mobile Deposit using standard
availability service). The Defendant does not charge a service fee
for using the Standard Availability Service.
Using the Immediate Funds Service, account holders can elect to
immediately obtain the full amount of their check deposits. The
Defendant may charge the account holder a service fee that is based
on the entire check amount and type of check, and account holders
have the option to accept the service fee before proceeding with
each deposit.
The Plaintiff, using her Essential Checking account, has used
Mobile Deposit's Immediate Funds Service and, as a result, has
incurred service fees on her mobile deposits. The Court does not
have the specific pricing structure for the service fees for the
Immediate Funds Service for Essential Checking account holders at
the times that the Plaintiff elected to use the Immediate Funds
Service; however, the Plaintiff asserts that, for each deposit made
on the 5/3 app with 'Immediate Funds Availability,' 5/3 charges
either a $4 minimum or between 2% to 4% of the total check amount.
In addition to the Defendant's various types of checking accounts,
it also offers a product called "Express Banking." The Plaintiff
does not have an Express Banking Account, and characterizes the
Defendant's creation of the Express Banking product as doing
business "in a high-fee manner that exploits low-income customers'
desperation to access their own funds."
The Plaintiff brings the lawsuit as a class action. In short, she
asserts that the Defendant promised to make the first $100 of a
customer's check deposit, made in any manner, immediately
available, for free; and, with respect to the first $100 of any
mobile check deposit using the Immediate Funds Service, Defendant's
service fee is improper and breaches that promise. The Plaintiff's
Amended Class Action Complaint brings the following claims: breach
of contract, breach of the covenant of good faith and fair dealing,
unjust enrichment, fraudulent inducement, and violation of the
Truth in Lending Act and Regulation Z.
The Defendant moves to dismiss the Plaintiff's Amended Class Action
Complaint in its entirety pursuant to Federal Rule of Civil
Procedure 12(b)(6) for failure to state a claim. In short, the
Defendant asserts that it did not promise in the Agreements to make
the first $100 of a customer's check deposit, made in any manner,
immediately available, for free.
Judge Barrett holds that the only reasonable interpretation of the
Agreements is that the Defendant did not promise to make the first
$100 of all mobile deposits, immediately available, for free, and
the Agreements unambiguously allow it to charge the Plaintiff the
Immediate Funds Service fees after giving her notice of the
specific service fee for each mobile deposit. The Plaintiff
concedes that the Defendant notified her of the Immediate Funds
Service fee before she selected to utilize the product on her app
and that she agreed to pay the service fee. The Judge finds that
the Plaintiff has not stated a plausible claim for breach of
contract, and dismissal is warranted.
The Judge also finds that the Plaintiff's breach of the covenant of
good faith and fair dealing claim must also be dismissed due to the
his finding that dismissal is warranted for her breach of contract
claim.
Next, under Ohio law, unjust enrichment is an equitable doctrine to
justify a quasi-contractual remedy that operates in the absence of
an express contract or a contract implied in fact to prevent a
party from retaining money or benefits that in justice and equity
belong to another. Ohio law is clear that a plaintiff may not
recover under the theory of unjust enrichment or quasi-contract
when an express contract covers the same subject. The Deposit
Account Rules & Regulations Agreement and Digital Services User
Agreement cover the same subject as the Plaintiff's breach of
contract and unjust enrichment claims. Consequently, dismissal of
the Plaintiff's claim for unjust enrichment under Ohio law is
warranted.
The Plaintiff's allegations regarding the Defendant's alleged
promise to make the first $100 of any mobile deposit immediately
available for free in her fraudulent inducement claim are the same
allegations that form the basis of her breach of contract claim.
She does not assert that the Defendant made any misrepresentations
collateral to, or outside of, the Agreements, or that Defendant had
a separate duty outside of the Agreements. The Plaintiff's claim
fails as a matter of law because the premise underlying her tort
claim is the alleged failure to fulfill a contractual promise, and
not any material, collateral misstatement of fact. Accordingly,
the Judge will dismiss the claim.
Finally, the Judge finds that the Immediate Funds Service is not an
extension of credit to the Plaintiff by the Defendant, and the
Defendant was not required to make any disclosures under TILA. The
Plaintiff's TILA and Regulation Z claim will be dismissed for
failure to state a claim for which relief can be granted.
For the foregoing reasons, Judge Barrett granted the Defendant's
Motion to Dismiss. The matter is closed and terminated from the
active docket of the Court.
A full-text copy of the District Court's May 15, 2020 Opinion &
Order is available at https://is.gd/x37aDZ from Leagle.com.
GLOBAL WIDGET: Glass Suit Over Misbranded CBD Products Stayed
-------------------------------------------------------------
The U.S. District Court for the Eastern District of California
issued a Memorandum and Order staying the lawsuit styled KENNETH
GLASS, individually, and on behalf of all others similarly situated
v. GLOBAL WIDGET, LLC d/b/a HEMP BOMBS, Case No.
2:19-cv-01906-MCE-KJN (E.D. Cal.).
The Defendant filed a Motion to Dismiss and/or Strike pursuant to
Federal Rules of Civil Procedure 12(b)(1), 12(b)(6) and 12(f).
Alternatively, the Defendant requests that the Court either dismiss
or stay the matter pursuant to the primary jurisdiction doctrine
pending imminent regulatory action by the United States Food and
Drug Administration ("FDA") regarding hemp cannabidiol ("CBD")
products.
Plaintiff Kenneth Glass alleges, both on his own behalf and on
behalf of others similarly situated, a nationwide collective action
claim against Defendant Global Widget, LLC d/b/a Hemp Bombs on
grounds that hemp cannabidiol ("CBD") products sold by the
Defendant were both misbranded and illegal. The Plaintiff's
operative First Amended Complaint ("FAC") alleges eight different
causes of action made on various grounds, including breach of
express warranty, breach of the implied warranty of
merchantability, unjust enrichment, and fraud, as well as for
violations of various state consumer protection, unfair
competition, and false advertising.
On May 22, 2020, the U.S. District Court for the Northern District
of California issued its decision in Colette v. CV Sciences, Inc.,
No. 2:19-cv-10227-VAP-JEM(x), 2020 WL 2739861. Colette, like the
present matter, is a class action relating to the marketing and
sale of CBD products. Also similar to the case at bar, the
plaintiff in Colette argues that she would not have purchased
products containing CBD if she knew they were not legally sold in
the United States.
District Judge Morrison C. England, Jr., notes that the plaintiff
in Colette argues, as the Plaintiff does here, that any forthcoming
regulatory action by the FDA cannot be retroactively applied to
class claims accrued prior to enactment of any new rules. Any
presumption against retroactivity, however, may be overcome by
statutory authorization. Colette, 2020 WL 2739 at *5. As Colette
notes, whether cannabis regulations will apply retroactively is
unknown, but given the widespread use and sale of CBD products--and
particularly the large number of states that have legalized their
sale--Congress may conclude that fairness, practicality, and comity
require retroactive legislation."
The FDA, as Colette recognized, "is working feverishly" to develop
rules concerning the regulation of CBD. Consequently, since this
Court agrees with Colette and Snyder v. Green Roads of Florida,
LLC, 430 F.Supp.3d 1297 (S.D. Fla. 2020) that the doctrine of
primary jurisdiction applies, it should either "stay the case
pending an administrative ruling or dismiss the case without
prejudice."
Here, as in Colette, the fact that further judicial proceedings in
this matter are indeed contemplated mandates that a stay, as
opposed to the complete relinquishment entailed by a dismissal, be
effected. Colette, 2020 WL 2739 at *5.
Conclusion
For all the reasons set forth in the Memorandum and Order, the
Court will stay this lawsuit until such time as the FDA completes
its rulemaking regarding the marketing, including labeling, of
hemp-derived ingestible products. The Defendant's Motion is
consequently GRANTED to the extent it requests the stay. Given the
Court's decision to stay this matter, however, the remaining
portions of said Motion, which ask the Court to dismiss and/or
strike portions of the proceedings, are DENIED without prejudice to
being renewed once the stay in this case has been lifted.
The parties are directed to notify the Court within ten (10) days
after the expected FDA regulations are issued. In the meantime, the
parties shall file joint status reports with the Court every ninety
(90) days, beginning on September 15, 2020.
A full-text copy of the District Court's June 15, 2020 Memorandum
and Order is available at https://tinyurl.com/yyrbs382 from
Leagle.com
GLYNN COUNTY, GA: Calculations in $17.5MM Deal Expected by August
-----------------------------------------------------------------
Taylor Cooper, writing for The Brunswick News, reports that checks
from a $17.5 million class action settlement with Glynn County
residents over overpaid property taxes should be in the mail before
the year ends after delays resulting from the COVID-19 outbreak.
Those checks would have been sent around July if the pandemic had
not shut down nearly all court functions, said Jay Roberts, a St.
Simons Island attorney who represented the residents.
Mid-October to November is a safe bet, he said, unless someone
objects to a class member being included in the settlement. An
objection means another 75 days to investigate.
"I doubt there will be any (objections)," Roberts said.
A preliminary list of class members sits at 12,415. Roberts' law
firm, Roberts Tate, got $7.5 million from the settlement, leaving
$10 million for the class members. A list of individual refunds is
expected by the end of July, Roberts said.
Another 75 days after that checks will be mailed to entitled
residents or former residents, unless an objection is made to one
of the parties receiving a refund.
Anyone who received the homestead exemption between 2010 and 2018
could be eligible, the deadline to file is 45 days after the list
of individual refunds is released.
For more information and to view the relevant forms and documents,
visit glynncounty.org/taxrefundcase
The lawsuit came about from the discovery that the Glynn County Tax
Commissioner -- which at the time was Florence Dees -- was not
correctly calculating some residents' Scarlett Williams homestead
exemptions.
The tax commissioner did not back down when it was brought to their
attention, and the matter went to court in three lawsuits filed in
2012, 2013 and 2014. They were combined into a class action lawsuit
as the extend of the overcharged taxes was uncovered.
A visiting superior court judge sided with the county, but the
Georgia Court of Appeals overturned the decision. The Georgia
Supreme Court declined to hear the case, leaving the appeals' court
decision as final.
As far as Roberts is concerned, his lead role in the case is over.
"We litigated on whether they were doing it wrong," Robert said.
"They were, and we won that part. We also litigated to set up a
process to repay the people and we did."
Once the matter was settled, the court appointed an administrator
and special master to oversee refund calculations and
disbursement.
Once the administrator, Larry Griggers of Lyons, finishes the
refund calculations, Roberts said the special master is tasked with
adjudicating any objections. [GN]
GOLDEN TRUST: Squire Patton Discusses Ruling in Perez TCPA Suit
---------------------------------------------------------------
Paul C. Besozzi, Esq. -- paul.besozzi@squirepb.com -- of Squire
Patton Boggs (US) LLP, in an article for The National Law Review,
reports that last year, in Salcedo v Hanna, the United States Court
of Appeals for the 11th Circuit ruled that receipt of a single
unsolicited text message did not establish a "concrete injury in
fact" -- a fundamental requirement for standing to bring a
Telephone Consumer Protection Act (TCPA) class action. But what
about two such texts in a four day period?
That was the question in Manuel Perez v. Golden Trust Insurance,
Inc., 2020 U.S. Dist. LEXIS 120819, Case No.
19-24157-Civ-COOKE/GOODMAN, United States District Court for the
Southern District of Florida, July 6, 2020. Three weeks after
receiving the second text, Mr. Perez brought a TCPA class action
arguing that the telemarketing texts were delivered to his
cellphone using an automatic telephone dialing system (ATDS).
Golden Trust moved to dismiss, arguing that the plaintiff had "not
properly alleged that it used an ATDS."
Wait a minute, said U.S. Magistrate Judge Jonathan Goodman. The
Court first had to determine whether it had subject matter
jurisdiction, and without the plaintiff properly alleging standing
to sue, there was no such jurisdiction.
Acknowledging that Salcedo was based on a single text message, the
Court ruled that the "rationale for finding a lack of injury from
one [such] message applies equally [to] . . . two text messages"
received over four days. Judge Goodman noted qualitative
differences between the Perez allegations of intangible injuries
(e.g., time wasted, aggravation, intrusion, interrupted business
calls) and cases where the Eleventh Circuit had found standing. For
example, "'a cell phone user can continue to us all of the device's
functions, including receiving other messages, while it is
receiving a text message.'"
Bottom line: the two text messages, which contained "fifty words
for the Plaintiff to read," did not meet the "concrete injury in
fact" requirement. Rather, as in Salcedo, the alleged injury was
"'isolated, momentary and ephemeral.'" Not enough.
Case dismissed (without prejudice) for lack of subject matter
jurisdiction. [GN]
GREY NUNS: Faces Class Action Over Alleged Children Abuse
---------------------------------------------------------
The Canadian Press reports that a class action lawsuit has been
filed against Montreal's Grey Nuns religious order alleging
physical and sexual abuse of children under its care at an
orphanage in the city.
The lawsuit filed in Quebec Superior Court and dated July 2 is on
behalf of a man who lived at the orphanage for about a year in the
late 1960s and who alleges he suffered physical and sexual abuse at
the hands of those in charge.
Lawyer Jean-Daniel Quessy says the plaintiff came forward after
seeing reports about a similar lawsuit filed in 2018 against the
Sisters of Charity of Quebec for alleged assaults at the order's
Mont d'Youville orphanage in Quebec City.
The action is on behalf of any person who believes they have been a
victim of physical or sexual by the order or anyone entrusted into
its care, between 1925 and 1972, at the Creche d'Youville, which
housed orphans and children whose parents were unable to take care
of them.
According to the filing whose allegations have not been proven, the
orphanage welcomed 78,200 children over its history.
The lawsuit has not been authorized by a judge and could take more
than a year to be certified, Quessy says, adding it could take
several years to play out before the courts. [GN]
HAITI: Seeks Dismissal of Price-Fixing Class Action
---------------------------------------------------
Law360 reports that Haiti's president and his two predecessors have
asked a New York federal judge to toss a proposed class action that
alleges they, the Haitian government and a telecommunications
provider in Haiti ran a price-fixing scheme on international phone
calls and money transfers, arguing that these claims lack
jurisdiction like the others that were already dismissed. [GN]
HARTFORD FINANCIAL: Denies Coverage for COVID Loss, Blushark Says
-----------------------------------------------------------------
BLUSHARK DIGITAL, LLC v. THE HARTFORD FINANCIAL SERVICES GROUP,
INC., and SENTINEL INSURANCE COMPANY, LTD., Case No.
3:20-cv-08210-MAS-LHG (D.N.J., July 2, 2020), is brought on behalf
of the Plaintiff and all others similarly situated against Hartford
and Sentinel related to insurance policies that insure the
Plaintiff's properties, operations, and potential liability in
connection with its business operations.
The insurance policies include: Business Income coverage, Extra
Expense coverage, coverage for loss due to the actions of a Civil
Authority, and Business Income from Dependent Properties, and
contains no relevant virus exclusion.
The Plaintiff is a small business that purchased the Defendants'
insurance policy and made premium payments for a policy that, in
the event of a catastrophe requiring a shutdown of business
operations, would require the Defendants to honor their contractual
obligation to provide coverage.
In March 2020, such a catastrophe took place when the Plaintiff was
forced to close its digital marketing businesses due to the
COVID-19 pandemic. The Plaintiff contends that in response to the
business interruption claims filed by the Plaintiff and thousands
of other class members resulting from the COVID-19 pandemic, the
Defendants have systematically denied and continue to deny and
refuse to provide payment for insurance claims for coverage for
similar losses and expenses by insureds holding policies that are,
in all material respects, identical.
Hartford is an insurance company engaged in the business of selling
insurance contracts to commercial entities such as Plaintiff in
Maryland and Washington DC and in all fifty states, including in
states like New Jersey, and including by and
through its wholly-owned subsidiaries.[BN]
The Plaintiff is represented by:
Lawrence E. Bathgate, II, Esq.
John J. Reilly, Esq.
Ryan M. Farrell, Esq.
BATHGATE, WEGENER & WOLF, P.C.
One Airport Road
P.O. Box 2043
Lakewood, NJ 08701
Telephone: (732) 363-0666
E-mail: lbathgate@bathweg.com
jreilly@bathweg.com
rfarrell@bathweg.com
- and -
Adam M. Moskowitz, Esq.
Adam A. Schwartzbaum, Esq.
Howard M. Bushman, Esq.
THE MOSKOWITZ LAW FIRM, PLLC
2 Alhambra Plaza, Suite 601
Coral Gables, FL 33134
Telephone: (305) 740-1423
E-mail: adam@moskowitz-law.com
adams@moskowitz-law.com
howard@moskowitz-law.com
- and -
William F. "Chip" Merlin, Jr., Esq.
Michael Howard Moore Esq.
MERLIN LAW GROUP
777 S. Harbour Island Blvd., Suite 950
Tampa, FL 33602
Telephone: (813) 229-1000
Facsimile: (813) 229-3692
E-mail: cmerlin@MerlinLawGroup.com
mmoore@merlinlawgroup.com
- and -
Rene M. Sigman, Esq.
Christina Phillips, Esq.
MERLIN LAW GROUP
515 Post Oak Blvd., Suite 510
Houston, TX 77027
Telephone: (713) 626-8880
Facsimile: (713) 626-8881
E-mail: rsigman@MerlinLawGroup.com
cphillips@merlinlawgroup.com
HARTFORD FINANCIAL: Denies Coverage for COVID Losses, GO-4 Says
---------------------------------------------------------------
GO-4 NUGE PRODUCTION RENTALS LLC v. THE HARTFORD FINANCIAL SERVICES
GROUP, INC., HARTFORD FIRE INSURANCE COMPANY, and HARTFORD
INSURANCE COMPANY OF THE MIDWEST, Case No. 1:20-cv-22749-MGC (S.D.
Fla., July 2, 2020), is brought on behalf of the Plaintiff and all
others similarly situated against the Defendants related to
insurance policies that insure the Plaintiff's properties,
operations, and potential liability in connection with its business
operations.
The insurance policies include: Business Income coverage, Extra
Expense coverage, coverage for loss due to the actions of a Civil
Authority, and Business Income from Dependent Properties, and
contains no relevant virus exclusion.
The Plaintiff operates a company that rents entertainment
equipment. One or more of the members of GO-4 NUGE are citizens of
Washington.
The Plaintiff is a small business that purchased the Defendants'
insurance policy and made premium payments for a policy that, in
the event of a catastrophe requiring a shutdown of business
operations, would require the Defendants to honor their contractual
obligation to provide coverage. In March 2020, such a catastrophe
took place when the Plaintiff was forced to close its rental
business due to the COVID-19 pandemic.
Hartford is an insurance company engaged in the business of selling
insurance contracts to commercial entities such as Plaintiff in
Washington, and in all fifty states, including in states like
Florida, and including by and through its wholly-owned
subsidiaries.[BN]
The Plaintiff is represented by:
Adam M. Moskowitz, Esq.
Adam A. Schwartzbaum, Esq.
Howard M. Bushman, Esq.
Joseph M. Kaye, Esq.
THE MOSKOWITZ LAW FIRM, PLLC
2 Alhambra Plaza, Suite 601
Coral Gables, FL 33134
Telephone: (305) 740-1423
E-mail: adam@moskowitz-law.com
adams@moskowitz-law.com
howard@moskowitz-law.com
joseph@moskowitz-law.com
- and -
William F. "Chip" Merlin, Jr., Esq.
Shane Smith, Esq.
MERLIN LAW GROUP
777 S. Harbour Island Blvd., Suite 950
Tampa, FL 33602
Telephone: (813) 229-1000
Facsimile: (813) 229-3692
E-mail: cmerlin@MerlinLawGroup.com
ssmith@MerlinLawGroup.com
HARTFORD FINANCIAL: Denies Coverage for COVID Losses, Weet Says
---------------------------------------------------------------
WEET TOOTH INC. D/B/A HAAGEN-DAZS ICE CREAM v. THE HARTFORD
FINANCIAL SERVICES GROUP, INC., and TWIN CITY FIRE INSURANCE
COMPANY, Case No. 1:20-cv-22750-KMW (S.D. Fla., July 2, 2020), is
brought on behalf of the Plaintiff and all others similarly
situated against the Defendants related to insurance policies that
insure the Plaintiff's properties, business operations, and
potential liability in connection with its business operations.
The insurance policies include: Business Income coverage, Extra
Expense coverage, and coverage for loss due to the actions of a
Civil Authority, and contains no relevant virus exclusion.
Sweet Tooth is a corporation organized under Georgia law with its
principal place of business located at 2131 Hollywood Boulevard, in
Hollywood, Florida. Sweet Tooth operates ice cream shops as a
Haagen Dasz franchisee in Hollywood, Florida; Palm Beach Gardens,
Florida; Troy, Michigan; Orlando, Florida; and Birmingham,
Alabama.
The Plaintiff is a small business that purchased the Defendants'
insurance policy and made premium payments for a policy that, in
the event of a catastrophe requiring a shutdown of business
operations, would require the Defendants to honor their contractual
obligation to provide coverage. In March 2020, such a catastrophe
took place when the Plaintiff was forced to close its digital
marketing businesses due to the COVID-19 pandemic.
In response to the business interruption claims filed by the
Plaintiff and thousands of other class members resulting from the
COVID-19 pandemic, the Defendants have systematically denied and
continue to deny and refuse to provide payment for insurance claims
for coverage for similar losses and expenses by insureds holding
policies that are, in all material respects, identical, according
to the complaint.
Hartford is an insurance company engaged in the business of selling
insurance contracts to commercial entities, such as the Plaintiff,
in Florida, Alabama, and Michigan, and in all fifty states,
including in states like Florida, and including by and through its
wholly-owned subsidiaries.
Twin City is an Indiana corporation with its principal place of
business in Indianapolis, Indiana. Defendant Twin City is a
wholly-owned subsidiary of Defendant the Hartford.[BN]
The Plaintiff is represented by:
Adam M. Moskowitz, Esq.
Adam A. Schwartzbaum, Esq.
Howard M. Bushman, Esq.
THE MOSKOWITZ LAW FIRM, PLLC
2 Alhambra Plaza, Suite 601
Coral Gables, FL 33134
Telephone: (305) 740-1423
E-mail: adam@moskowitz-law.com
adams@moskowitz-law.com
howard@moskowitz-law.com
- and -
William F. "Chip" Merlin, Jr., Esq.
Rene M. Sigman, Esq.
Christina Phillips, Esq.
Rene M. Sigman, Esq.
MERLIN LAW GROUP
777 S. Harbour Island Blvd., Suite 950
Tampa, FL 33602
Telephone: (813) 229-1000
Facsimile: (813) 229-3692
E-mail: cmerlin@MerlinLawGroup.com
mmoore@merlinlawgroup.com
rsigman@MerlinLawGroup.com
cphillips@merlinlawgroup.com
HARVARD UNIVERSITY: Law Student's Class Action Demand Reimbursement
-------------------------------------------------------------------
The National Jurist reports that a recent lawsuit filed by a
second-year law student at Harvard is going after the Boston-area
university for forcing students to attend classes online but
refusing to credit or lower tuition for what he claims is a
downgraded education and experience.
Abraham Barkhordar, a California native who attended community
college and then UCLA was previously most googled for his free
guide on applying to law school, filed a lawsuit on June 22, 2020
with the U.S. District Court for the District of Massachusetts that
outlines why he should be reimbursed.
It states, "The online learning option Harvard offered following
the termination of its in-person services is subpar in practically
every aspect: lack of facilities, lack of materials, lack of
efficient classroom participation, and lack of access to faculty."
All law students pay a pretty penny--hundreds of thousands of
them--to attend law school. At Ivy League schools, that tuition
cost tends to be even higher, which is why Barkhordar says he's
suing Harvard not only for himself but on behalf of his classmates
too.
"Plaintiff therefore seeks, individually and on behalf of the
Class, a proportionate reimbursement of tuition and fees for the
Spring 2020 Term and a similar reimbursement for any subsequent
academic term conducted in online format and for which Harvard
charges tuition and fees at the same level or higher as prior
years," the lawsuit reads.
The complaint demands the university pay upward of $5 million in
tuition reimbursement to all class members for the spring and for
any future online academic terms for damages.
"Harvard continues to charge for tuition and fees as if nothing has
changed, reaping the financial benefit of millions of dollars from
students despite the inferior online learning environment," the
lawsuit reads. "Therefore, all students paid full tuition for the
Spring 2020 Term although they received no in-person instruction
and had zero to extremely limited access to campus facilities
following March 13, 2020."
The lawsuit argues that Harvard is not known for its online class
options like some other universities are and students ultimately
deiced to go there for the learning environment and resources
provided on campus.
"Rather, a significant focus of Harvard's efforts to obtain and
recruit students pertains to the campus experience it offers along
with face-to-face, personal interaction with skilled and
world-renowned faculty and staff."
According to the complaint, Barkhordar's online courses in the
spring were less rigorous than in-person classes and he had less
interaction with his professors, whose expectations of students
were lower.
"The remote learning option is in no way equivalent to the
in-person education that Plaintiff and other Class Members were
promised in exchange for their commitment to attend Harvard and the
tuition and fees many of them paid during the Spring 2020 Term,"
the lawsuit reads.
On March 10, Harvard announced that classes would go online
beginning March 23 due to COVID-19. Barkhordar says he was forced
out of his room on-campus with little notice and forced to fly home
to California during the height of the COVID-19 pandemic.
The attorney's representing Barkhordar expressed that law students
didn't bargain for on online experience.
"Students signed up at the beginning of the semester, paid their
tuition on the understanding that they would receive classes in
person for the whole semester," LeElle Slifer, one of the
attorney's representing Barkhordar, said. "That agreement wasn't
met. Classes went online halfway through, so that was a breach of
that contract."
Harvard announced its decision to hold the Fall 2020 semester
online as a response to COVID-19 still threatening lives.
In the letter to students, Dean John Manning said students had
until June 19 to decide if they wanted to defer enrollment and put
their law degree on hold.
"We very much hope that you choose to remain in what we expect to
be an exciting and enriching online academic and social program,"
Meaning wrote. "But we want to be sure that you have a fair
opportunity to make a decision that is right for you based on the
best information we can provide you at this time."
The law school plans to keep tuition at the same level of $65,875
even though the fall semester will be entirely remote.
Barkhordar's complaint argues that the choice between paying
"outrageous tuition" for online classes and disrupting their
education isn't much of a choice at all. And he says instead of a
reimbursement, school officials suggest students pay more in other
amenities they'd normally receive on campus, such as housing.
"The Harvard Law School administration even gone so far as to tell
concerned students to take out an additional loan and ‘rent
office space' if they have trouble studying off-campus," the
lawsuit states.
Slifer said they may amend the complaint to include the upcoming
fall semester.
Barkhordar's complaint marks the second multi-million dollar
lawsuit filed against Harvard for its online educational experience
during the pandemic. The first was filed in late May by an
anonymous student.
Harvard says it can't comment on pending litigation, but the law
school administration did address tuition concerns on its website,
noting that it already canceled its expected tuition increase, but
that cutting tuition is a University-level decision. [GN]
HARVEY WEINSTEIN: Accuser Opposes Settlement, Says Process Unfair
-----------------------------------------------------------------
Variety reports that Another Harvey Weinstein accuser has raised
objections to the $46.8 million settlement, arguing that it sets up
an unfair process for sexual abuse victims and that too much money
will go to the class action attorneys.
Zoe Brock, who was one of the class action plaintiffs, filed her
opposition to the settlement. Four other Weinstein accusers--Wedil
David, Dominique Huett, Kaja Sokola and Alexandra Canosa--have
previously voiced concern and said they will not participate.
The settlement was announced on June 30, following approximately 18
months of drawn-out negotiations. It sets up an $18.9 million fund
that would go to class action plaintiffs and their attorneys, as
well as $5.4 million pool for individual plaintiffs.
Brock, a model and actress from New Zealand, alleges that Weinstein
lured her to a hotel suite at the Cannes Film Festival in 1998,
took off his clothes and then insisted on a massage. She said she
was able to escape the suite as Weinstein attempted to maneuver her
into a bedroom.
After she was first informed of the general outline of the
settlement last fall, Brock said she raised concerns about the
compensation that would go to Elizabeth Fegan, the lead class
action attorney, and the Hagens Berman law firm. She also believed
that the settlement was insufficient to hold Weinstein and his
enablers to account.
According to her motion, Fegan fired her as a client and excluded
her new counsel from subsequent settlement talks.
Brock's new attorneys, Daniel D. Williams and John C. Clune of
Boulder, Colo., argue in the opposition that the process for class
action claimants may retraumatize Weinstein's victims, and could
lead to arbitrary awards. The process includes a lengthy
questionnaire, but the attorneys argue the tone of the questions
may inhibit the most traumatized victims from participating.
The attorneys also challenge the guidelines for assessing how much
each claimant should receive, saying it puts heavy weight on the
type of sexual misconduct alleged, and little weight on the impact
of that misconduct.
Brock's lawyers also object that Harvey Weinstein will pay nothing
out of pocket to resolve the claims, relying instead entirely on
insurance proceeds. Brock says she still wishes to participate in a
global settlement, but that the current terms are unacceptable and
should be rejected.
Attorneys for the Weinstein Co. bankruptcy estate hope to win court
approval for the settlement and to confirm a plan of liquidation by
the end of 2020. [GN]
KINGOLD JEWELRY: Bronstein Gewirtz Reminds of August 31 Deadline
----------------------------------------------------------------
Bronstein, Gewirtz & Grossman, LLC notifies investors that a class
action lawsuit has been filed against Kingold Jewelry, Inc.
("Kingold" or "the Company") (NASDAQ: KGJI) and certain of its
officers, on behalf of shareholders who purchased or otherwise
acquired Kingold securities between March 15, 2018 and June 28,
2020, both dates inclusive (the "Class Period"). Such investors are
encouraged to join this case by visiting the firm's site:
www.bgandg.com/kgji.
This class action seeks to recover damages against Defendants for
alleged violations of the federal securities laws under the
Securities Exchange Act of 1934.
The Complaint alleges that throughout the Class Period, Defendants
made materially false and/or misleading statements and/or failed to
disclose that: (1) Kingold used fake gold as collateral to
fraudulently secure loans; (2) consequently, the Company would face
creditor lawsuits and be delisted from the Shanghai Gold Exchange;
and (3) as a result, defendants' statements about its business,
operations, and prospects, were materially false and misleading
and/or lacked a reasonable basis at all relevant times.
A class action lawsuit has already been filed. If you wish to
review a copy of the Complaint you can visit the firm's site:
www.bgandg.com/kgji or you may contact Peretz Bronstein, Esq. or
his Investor Relations Analyst, Yael Hurwitz of Bronstein, Gewirtz
& Grossman, LLC at 212-697-6484. If you suffered a loss in Kingold
you have until August 31, 2020 to request that the Court appoint
you as lead plaintiff. Your ability to share in any recovery
doesn't require that you serve as a lead plaintiff.
Bronstein, Gewirtz & Grossman, LLC is a corporate litigation
boutique. Our primary expertise is the aggressive pursuit of
litigation claims on behalf of our clients. In addition to
representing institutions and other investor plaintiffs in class
action security litigation, the firm's expertise includes general
corporate and commercial litigation, as well as securities
arbitration. Attorney advertising. Prior results do not guarantee
similar outcomes.
Contacts
Bronstein, Gewirtz & Grossman, LLC
Peretz Bronstein or Yael Hurwitz
212-697-6484 | info@bgandg.com [GN]
KINGOLD JEWELRY: Pomerantz Law Firm Reminds of Aug. 31 Deadline
---------------------------------------------------------------
Pomerantz LLP announces that a class action lawsuit has been filed
against Kingold Jewelry, Inc. and certain of its officers. The
class action, filed in the United States District Court for the
Eastern District of New York, and indexed under 20-cv-03050, is on
behalf of persons or entities who purchased or otherwise acquired
Kingold securities between March 15, 2018, and June 28, 2020,
inclusive (the "Class Period"). Plaintiff seeks to recover
compensable damages caused by Defendants' violations of the federal
securities laws under the Securities Exchange Act of 1934 (the
"Exchange Act").
If you are a shareholder who purchased Kingold securities during
the Class Period, you have until August 31, 2020, to ask the Court
to appoint you as Lead Plaintiff for the class. A copy of the
Complaint can be obtained at www.pomerantzlaw.com. To discuss
this action, contact Robert S. Willoughby at
--rswilloughby@pomlaw.com -- or 888.476.6529 (or 888.4-POMLAW),
toll-free, Ext. 7980. Those who inquire by e-mail are encouraged to
include their mailing address, telephone number, and the number of
shares purchased.
Kingold purports to design, manufacture, and sell 24-karat gold
jewelry and Chinese ornaments in the People's Republic of China.
The complaint alleges that, throughout the Class Period, Defendants
made materially false and/or misleading because they misrepresented
and failed to disclose the following adverse facts about the
Company's business, operations, and prospects, which were known to
Defendants or recklessly disregarded by them. Specifically,
Defendants made false and/or misleading statements and/or failed to
disclose that: (i) Kingold used fake gold as collateral to
fraudulently secure loans; (ii) consequently, the Company would
face creditor lawsuits and be delisted from the Shanghai Gold
Exchange; and (iii) as a result, Defendants' statements about its
business, operations, and prospects were materially false and
misleading and/or lacked a reasonable basis at all relevant times.
On June 29, 2020, before the market opened, Caixin Global published
an article entitled "Cover Story: The Mystery of $2 Billion of
Loans Backed by Fake Gold." The article stated, among other
things, that Kingold had used gold bars that were actually gilded
copper as collateral in loans and was now facing lawsuits as a
result, and that Kingold had been delisted from the Shanghai Gold
Exchange.
On this news, shares of Kingold stock fell $0.27 per share, or over
24%, to close at $0.85 per share on June 29, 2020.
The Pomerantz Firm, with offices in New York, Chicago, Los Angeles,
and Paris, is acknowledged as one of the premier firms in the areas
of corporate, securities, and antitrust class litigation. Founded
by the late Abraham L. Pomerantz, known as the dean of the class
action bar, the Pomerantz Firm pioneered the field of securities
class actions. Today, more than 80 years later, the Pomerantz Firm
continues in the tradition he established, fighting for the rights
of the victims of securities fraud, breaches of fiduciary duty, and
corporate misconduct.
Robert S. Willoughby
Pomerantz LLP
E-mail: rswilloughby@pomlaw.com [GN]
LIFE TIME: Fitness Instructors File Wage Class Action
-----------------------------------------------------
Sara E. Teller, writing for Legal Reader, reports that Alicia
Schaeffer, a former Life Time group yoga instructor, is suing her
employer for unpaid work she and other instructors were allegedly
told to do before and after they taught classes. Schaeffer filed
the lawsuit in U.S. District Court against Life Time Inc. claiming
that for "about eight years when she worked for Life Time's
Bloomington North fitness facility she and other hourly group
fitness instructors were unpaid for work they did outside of their
official class times." The plaintiff's attorneys are seeking class
action status for the case, and a judge will have to determine if
the case can move forward as a class action.
"In addition to teaching 60 minutes of class time, plaintiff's job
as group fitness instructor required her to perform work that
preceded and followed each of her yoga classes. All group fitness
instructors are similarly required to perform pre- and post-class
work," Schaeffer's attorneys wrote in the complaint.
"Life Time's instructor manual says trainers are expected to be in
the studio 15 minutes before class with music playing from their
own curated playlists," according to court documents. "Instructors
are also asked to clean up after classes, such as gathering towels
and stacking mats. Altogether, group instructors are required to
complete a number of tasks outside of class without being paid like
wiping down equipment, arranging props, and attending training
meetings."
The suit was filed one day after Life Time executives notified the
Minnesota Department of Employment and Economic Development it
would need to lay off about 300 employees "because of economic
pressures it faces from gym closures due to the coronavirus
outbreak."
Club spokesperson Natalie Bushaw submitted a statement when the
layoff was announced explaining, "When we closed, we hoped the
clubs would reopen quickly. Subsequently, it took nearly three
months to reopen approximately two-thirds of our clubs with
continued uncertainty around the timing for reopening the remaining
one-third of the clubs. These shutdowns inflicted considerable
negative financial impact on our company, along with the suspension
of nearly four years of new club and business development.
Additionally, it may take some months before membership growth and
traffic resume to normal levels. With this unforeseen business
interruption and impact, we have implemented difficult, but
necessary, action to reduce our operating expenses, including a 1
percent reduction in our total workforce. The vast majority of
this impact is in our real estate, architecture and construction
departments given the temporary suspension of new club and business
development. All team members will have the opportunity to
maintain their company-provided Life Time club membership through
December 31, 2020. Additionally, those currently participating in
our medical and dental coverage will have the opportunity to
maintain these benefits at company expense through December 31,
2020."
Regarding the lawsuit, she responded, "We intend to vigorously
defend ourselves and stand by our employment practices."
Life Time operates more than 150 health clubs in 41 markets across
the U.S. It will lay off a total of 301 employees amid the
coronavirus including 250 employees from its headquarters and an
additional 51 employees from Life Time's Millwork facilities in
Chaska. [GN]
LLOYD'S LONDON: Denies Coverage for COVID-19 Losses, MDH Alleges
----------------------------------------------------------------
MDH GLOBAL, LLC v. CERTAIN UNDERWRITERS AT LLOYD'S LONDON,
UNDERWRITERS AT LLOYD'S LONDON KNOWN AS SYNDICATE XLC 2003, CNP
4444, NVA 2007, ARG 2121, and ASC 1414, and HDI GLOBAL SPECIALTY
SE, Case No. 3:20-cv-08214-BRM-ZNQ (D.N.J., July 2, 2020), is
brought on behalf of the Plaintiff and all others similarly
situated against the Defendants related to insurance policies that
insure the Plaintiff's properties, business operations, and
potential liability in connection with its business operations.
The insurance policies include: Business Income coverage, Extra
Expense coverage, and coverage for loss due to the actions of a
Civil Authority, and contains no relevant virus exclusion.
MDH Global operates a vacation rental company. One or more of the
members of MDH Global are citizens of North Carolina.
The Plaintiff is a small business that purchased the Defendants'
insurance policy and made premium payments for a policy that, in
the event of a catastrophe requiring a shutdown of business
operations, would require Defendants to honor their contractual
obligation to provide coverage. In March 2020, such a catastrophe
took place when the Plaintiff was forced to close its digital
marketing businesses due to the COVID-19 pandemic.
In response to the business interruption claims filed by the
Plaintiff and thousands of other class members resulting from the
COVID-19 pandemic, the Defendants have systematically denied and
continue to deny and refuse to provide payment for insurance claims
for coverage for similar losses and expenses by insureds holding
policies that are, in all material respects, identical, according
to the complaint.
The Underwriters at Lloyd's London is composed of syndicates of
individual underwriters that share respective and several liability
under an insurance policy.
HDI Global is a wholly owned subsidiary of Talanx AG, a publicly
traded company organized under the laws of Germany, with its
principal place of business in Germany. At all times material, HDI
Global, Talanx AG, and other Talanx subsidiaries engaged in
continuous and not isolated activity in the United States and
specifically in New Jersey, including to contracting to insure
property located in Florida.[BN]
The Plaintiff is represented by:
Lawrence E. Bathgate, II, Esq.
John J. Reilly, Esq.
Ryan M. Farrell, Esq.
BATHGATE, WEGENER & WOLF, P.C.
One Airport Road
P.O. Box 2043
Lakewood, NJ 08701
Telephone: (732) 363-0666
E-mail: lbathgate@bathweg.com
jreilly@bathweg.com
rfarrell@bathweg.com
- and -
Adam M. Moskowitz, Esq.
Adam A. Schwartzbaum, Esq.
Howard M. Bushman, Esq.
THE MOSKOWITZ LAW FIRM, PLLC
2 Alhambra Plaza, Suite 601
Coral Gables, FL 33134
Telephone: (305) 740-1423
E-mail: adam@moskowitz-law.com
adams@moskowitz-law.com
howard@moskowitz-law.com
- and -
William F. "Chip" Merlin, Jr., Esq.
Rene M. Sigman, Esq.
Christina Phillips, Esq.
Rene M. Sigman, Esq.
MERLIN LAW GROUP
777 S. Harbour Island Blvd., Suite 950
Tampa, FL 33602
Telephone: (813) 229-1000
Facsimile: (813) 229-3692
E-mail: cmerlin@MerlinLawGroup.com
mmoore@merlinlawgroup.com
rsigman@MerlinLawGroup.com
cphillips@merlinlawgroup.com
LLOYD'S LONDON: Denies Coverage for COVID-19 Losses, Palm Claims
----------------------------------------------------------------
PALM AND PINE VENTURES, LLC v. CERTAIN UNDERWRITERS AT LLOYD'S
LONDON, UNDERWRITERS AT LLOYD'S LONDON KNOWN AS SYNDICATE XLC 2003,
CNP 4444, QBE 1886, ARG 2121, and ASC 1414, and HDI GLOBAL
SPECIALTY SE, Case No. 3:20-cv-08212-MAS-LHG (D.N.J., July 2,
2020), is brought on behalf of the Plaintiff and all others
similarly situated against the Defendants related to insurance
policies that insure the Plaintiff's properties, business
operations, and potential liability in connection with its business
operations.
The insurance policies include: Business Income coverage, Extra
Expense coverage, and coverage for loss due to the actions of a
Civil Authority, and contains no relevant virus exclusion.
Palm & Pine operates a vacation rental company.
The Plaintiff is a small business that purchased the Defendants'
insurance policy and made premium payments for a policy that, in
the event of a catastrophe requiring a shutdown of business
operations, would require the Defendants to honor their contractual
obligation to provide coverage. In March 2020, such a catastrophe
took place when the Plaintiff was forced to close its digital
marketing businesses due to the COVID-19 pandemic.
In response to the business interruption claims filed by the
Plaintiff and thousands of other class members resulting from the
COVID-19 pandemic, the Defendants have systematically denied and
continue to deny and refuse to provide payment for insurance claims
for coverage for similar losses and expenses by insureds holding
policies that are, in all material respects, identical, according
to the complaint.
Defendant Underwriters at Lloyd's London is composed of syndicates
of individual underwriters that share respective and several
liability under an insurance policy.
Defendant HDI Global Specialty SE is a European society company
organized under the laws of Germany, with its principal place of
business in Germany. HDI Global is a wholly owned subsidiary of
Talanx AG, a publicly traded company organized under the laws of
Germany, with its principal place of business in Germany.[BN]
The Plaintiff is represented by:
Lawrence E. Bathgate, II, Esq.
John J. Reilly, Esq.
Ryan M. Farrell, Esq.
BATHGATE, WEGENER & WOLF, P.C.
One Airport Road
P.O. Box 2043
Lakewood, NJ 08701
Telephone: (732) 363-0666
E-mail: lbathgate@bathweg.com
jreilly@bathweg.com
rfarrell@bathweg.com
- and -
Adam M. Moskowitz, Esq.
Adam A. Schwartzbaum, Esq.
Howard M. Bushman, Esq.
THE MOSKOWITZ LAW FIRM, PLLC
2 Alhambra Plaza, Suite 601
Coral Gables, FL 33134
Telephone: (305) 740-1423
E-mail: adam@moskowitz-law.com
adams@moskowitz-law.com
howard@moskowitz-law.com
- and -
William F. "Chip" Merlin, Jr., Esq.
Rene M. Sigman, Esq.
Christina Phillips, Esq.
Rene M. Sigman, Esq.
MERLIN LAW GROUP
777 S. Harbour Island Blvd., Suite 950
Tampa, FL 33602
Telephone: (813) 229-1000
Facsimile: (813) 229-3692
E-mail: cmerlin@MerlinLawGroup.com
mmoore@merlinlawgroup.com
rsigman@MerlinLawGroup.com
cphillips@merlinlawgroup.com
LOUISIANA: Court Denies Gumns' TRO Motion in Prisoners Suit
-----------------------------------------------------------
Judge Shelly D. Dick of the U.S. District Court for the Middle
District of Louisiana denied Plaintiffs' Emergency Motion for
Temporary Restraining Order Enjoining Defendants from Transferring
COVID-19 Carriers to Louisiana State Penitentiary in a Louisiana
inmates class action complaint.
The case is DANIEL GUMNS, MICHAEL VIDEAU, TREVON WILEY, IAN
CAZENAVE, REGINALD GEORGE, LIONEL TOLBERT, OTTO BARRERA, KENTRELL
PARKER, MICHAEL ROBINSON, JULIUS ALLEN, ERNEST ROGERS, ALFOANSO
GARNER, BRADLEY WINTERS, KENDRICK WILSON, and JAMES HUGHES, on
behalf of themselves and all similarly situated individuals, v.
JOHN BEL EDWARDS, in his official capacity as Governor of the State
of Louisiana; LOUISIANA DEPARTMENT OF PUBLIC SAFETY & CORRECTIONS;
JAMES LEBLANC, in his official capacity as Secretary of the
Department of Safety and Corrections; JOHN MORRISON, in his
official capacity as Medical Director of the Department of Safety
and Corrections; LOUISIANA DEPARTMENT OF HEALTH; and STEPHEN R.
RUSSO, in his official capacity as Interim Secretary of the
Louisiana Department of Health, Civil Action No. 20-231-SDD-RLB
(M.D. La.).
The subject of the Plaintiffs' motion is the COVID-19 response
transfer plan developed by the Defendants, by which COVID-19
positive inmates housed in state and parish jails and prisons are
transferred to Camp J, at Louisiana State Penitentiary at Angola
("LSP"), for isolation and medical monitoring. Camp J is remotely
located in a self-contained cell block at LSP that was moth-balled
by the LSP in 2018.
The COVID-196 pandemic has caused a global crisis and has greatly
affected the country's prison populations. The parties agree that
COVID-19 is a viral pandemic that poses an ongoing threat to the
health and safety of all residents of Louisiana and is highly
infectious. The incubation period of COVID-19 is 2 to 14 days.
Symptoms of COVID-19 can include fever, cough, chest pain,
headache, loss of smell, diarrhea, aches, vomiting, difficulty
breathing, and can result in pneumonia. People positive for
COVID-19 can present with no symptoms, and COVID-19 tests can
provide false negatives. People over the age of 65 are at higher
risk of developing serious symptoms if they contract COVID-19.
People with certain pre-existing medical conditions may be at a
higher risk of developing serious symptoms if they contract
COVID-19. There is currently no cure or vaccine for COVID-19, and
it can be deadly.
The Plaintiffs purport to represent a class defined as: All
prisoners and pretrial detainees who are, or will in the future be,
subjected to the medical care policies and practices of the DOC,
and subjected to the DOC's COVID-19 policies and practices. The
Plaintiffs propose a declaratory and injunctive subclass of all
incarcerated individuals who are, or will in the future be,
subjected to the medical care policies and practices of the DOC,
and subjected to the DOC's COVID-19 policies and practices
("Subclass I"). They propose a declaratory and injunctive subclass
of all individuals being held in pre-trial detention who are, or
will in the future be, subjected to the medical care policies and
practices of the DOC, and subjected to the DOC's COVID-19 policies
and practices ("Subclass II").
The Plaintiffs sued the Defendants pursuant to 42 U.S.C. Section
1983, alleging that the Defendants have violated the Eighth
Amendment rights of Subclasses I & II in their deliberate
indifference to the serious risk of harm posed by COVID-19, and
violated the Fourteenth Amendment rights of Subclass II to
reasonably safe living conditions. They contend LSP is not
equipped to treat COVID-19 patients and is incapable of providing
adequate treatment for life-threatening symptoms because it is
located over an hour from the nearest hospital. The Plaintiffs
also contend that Camp J is unfit for housing healthy inmates, much
less sick inmates, and the Defendants' transfer plan threatens the
lives of LSP's medically vulnerable population by increasing the
risk of transmission of the coronavirus among LSP's population.
The Defendants oppose the Plaintiffs' motion and defend their
transfer plan and the use of Camp J as an isolation dorm for
COVID-19 positive inmates. They offer evidence that the Camp J
isolation plan was developed collaboratively among the Defendants,
related state agencies, and members of law enforcement, and in
consultation with CDC guidelines. The Defendants submit that Camp
J is suitable to house and monitor COVID positive inmates for
temporary isolation purposes. The Defendants maintain that the
Plaintiffs' claims are not justiciable because they failed to
exhaust administrative remedies as required by the Prison
Litigation Reform Act ("PLRA"). The Defendants further maintain
that the Plaintiffs have failed to meet the burden for the issuance
of a TRO or preliminary injunction.
The Parties dispute whether the Plaintiffs in the matter are
required to exhaust administrative remedies under the PLRA. The
Plaintiffs contend the Administrative Remedy Procedures ("ARP")
process was suspended by the DOC's Continuity of Operations Plan
("COOP"). At the evidentiary hearing, the counsel for the
Defendant argued that the ARP deadlines were extended, but
exhaustion was still required, and the ARP process is still
available to inmates. The Plaintiffs argue that, in any event,
given the imminent risks of COVID-19 in Louisiana prisons, the
Plaintiffs cannot be expected to complete a lengthy exhaustion
process. Their position lacks legal support. In the context of
COVID-19 exigencies, the Fifth Circuit has recently made it clear
that there is no emergency exception or "interest of justice"
exception to the PLRA's exhaustion requirement.
In the present matter, Judge Dick finds that the evidence regarding
exhaustion is scant. A strong argument could be made that
Valentine and Marlowe compel dismissal for failure to exhaust
administrative remedies. However, the Defendants' COOP16
categorizes ARP's as "non-essential and suspended." The
Defendants' contention that the COOP merely suspended response
times is unsupported by the plain language of the COOP. The
evidence in the case establishes that the DOC was operating
pursuant to COOP Level Red, under which ARP was suspended.
The Judge finds that the Plaintiffs have failed to present evidence
that the Defendants developed the transfer plan with knowing
disregard for a serious risk of harm substantially certain to
occur. To the contrary, she finds that the plan was carefully
developed to limit the impending harm of the spread of coronavirus
throughout all prisons and jails in the state of Louisiana, and as
set forth below, the alleged harm has not materialized.
The Judge then finds that the Plaintiffs have failed to establish
that the current conditions of Camp J present an intolerable risk
of harm to the inmates temporarily housed there for limited
duration isolation and monitoring. While the Camp J transfer and
isolation plan is not a "perfect" plan, the well-intentioned
efforts to decrease the risk of harm and the spread of the
coronavirus throughout Louisiana jails and prisons belies a claim
of deliberate indifference. Under the foregoing jurisprudence,
occasional failures of implementation or lax enforcement of
guidelines by Defendants does not constitute deliberate
indifference. The Plaintiffs have presented no evidence that the
Defendants subjectively believe their plan is inadequate, and the
overall success of the plan thus far undermines their claims.
Next, while they focus entirely on the alleged risk of harm to
their purported class, the Plaintiffs fail to give any real
consideration to the serious potential risk of harm that an
injunction would cause to the Defendants. The DOC is not charged
solely with the protection of inmates at LSP; rather, the DOC is
responsible for the care and safety of all prisoners in the custody
of the DOC throughout the State of Louisiana. The Plaintiffs have
failed to demonstrate that the requested injunction will not cause
irreparable harm to the Defendants and potentially to inmates and
pre-trial detainees throughout the State of Louisiana.
Finally, the Judge finds that the Plaintiffs have offered no
evidence that local jails and prisons are not attempting to isolate
prisoners where they can, and the claim that local jails must not
be following this instructive because there is no incentive to do
so is argumentative, speculative, and unsupported by evidence.
Moreover, not only is this refuted by the Defendants' evidence, it
is the Plaintiffs' motion, and it is incumbent upon them to present
evidence to support their claims, not the Defendants. It is
improper for them to toss out speculative allegations then demand
Defendants offer evidence to disprove them.
The Plaintiffs must offer evidence that the challenged plan is
unconstitutional, and they have not done so. The Judge finds that
the balance of the harms and the public interest weigh against the
issuance of the requested TRO or preliminary injunction.
Accordingly, Judge Dick denied Plaintiffs' request to restrain
Defendants from transferring COVID-19 carrier to Louisiana State
Penitentiary.
A full-text copy of the District Court's May 15, 2020 Ruling is
available at https://is.gd/SL69KS from Leagle.com.
MARIN COUNTY, CA: Shurwest Appeals Decision to Calif. App. Ct.
--------------------------------------------------------------
Petitioner Shurwest, LLC, filed an appeal from a court ruling in
the lawsuit styled Shurwest, LLC v. Superior Court for the County
of Marin, Case No. CIV1900627, in the Superior Court of the State
of California for the County of Marin.
The nature of suit is stated as civil.
The appellate case is captioned as Shurwest, LLC v. Superior Court
for the County of Marin, Case No. A160464, in the California Court
of Appeal, First Appellate District.[BN]
Petitioner Shurwest, LLC is represented by:
Miles Michael Cooley, Esq.
DLA PIPER LLP (US)
2000 Avenue of the Stars, Ste. 400
Los Angeles, CA 90067-4704
Telephone: (310) 595-3070
Facsimile: (310) 595-3480
E-mail: miles.cooley@dlapiper.com
Real Party in Interest George Geoffrey Leland is represented by:
Adam Brett Wolf, Esq.
PEIFFER WOLF CARR & KANE
4 Embarcadero Ctr., Ste. 1400
San Francisco, CA 94111-4164
Telephone: (415) 766-3545
Facsimile: (415) 402-0058
E-mail: awolf@pwcklegal.com
MCDONALD'S USA: Rocha Labor Class Suit Removed to E.D. California
-----------------------------------------------------------------
The class action lawsuit captioned as JOHN ROCHA, as an individual
and on behalf of all other similarly situated non-exempt former and
current employees v. MCDONALD'S USA, LLC; MCDONALD'S RESTAURANTS OF
CALIFORNIA, INC.; and DOES 1 through 100, inclusive, Case No.
20CECG01570 (Filed May 28, 2020), was removed from the Superior
Court of the State of California for the County of Fresno to the
U.S. District Court for the Eastern District of California on July
2, 2020.
The Eastern District of California Court Clerk assigned Case No.
1:20-cv-00927-AWI-EPG to the proceeding.
In the complaint, the Plaintiff asserts claims against the
Defendants for failure to pay all overtime wages; minimum wage
violations; meal period violations; rest period violations; and
wage statement violations under the California Labor Code, Private
Attorneys General Act.
McDonald's owns and operates a chain of restaurants. The Company
offers sandwiches, burgers, chicken, fish, beverages, desserts,
salads, and other related products.[BN]
The Plaintiff is represented by:
Brandon J. Sweeney, Esq.
THE SWEENEY LAW FIRM, APC
15233 Ventura Blvd., Suite 500
Sherman Oaks, CA 94013
Telephone: (323) 486-2508
E-mail: bsweeney@thesweeneylawfirm.com
The Defendants are represented by:
Aaron L. Agenbroad, Esq.
Kelsey A. Israel-Trummel, Esq.
JONES DAY
555 California Street, 26th Floor
San Francisco, CA 94104
Telephone: 415 626 3939
Facsimile: 415 875 5700
E-mail: alagenbroad@jonesday.com
kitrummel@jonesday.com
MICROSOFT CORP: Vance Sues Over Unlawful Use of Biometric Info
--------------------------------------------------------------
Steven Vance and Tim Janecyk, on behalf of themselves and all other
similarly situated individuals v. MICROSOFT CORPORATION, Case No.
2:20-cv-01082 (W.D. Wash., July 14, 2020), accuses the Defendant of
violating the Biometric Information Privacy Act by unlawfully
collecting, obtaining, storing, using, possessing and profiting
from the biometric identifiers and information of the Plaintiffs.
Unlike the way facial recognition technology is depicted in the
movies, the actual technology is plagued by a major problem--it is
inaccurate, especially when it comes to correctly identifying women
and people of color, according to the complaint. In recent years,
an "arms race" has developed amongst for-profit companies seeking
to become market leaders in the facial recognition arena. Critical
to winning this battle has been to the ability to claim a low
identification error rate--i.e., the for-profit companies want to
herald the accuracy of their products, including accuracy in
identifying woman and people of color.
In its effort to improve its facial recognition technology,
Defendant Microsoft violated the BIPA, by, among other things,
unlawfully collecting, obtaining, storing, using, possessing and
profiting from the biometric identifiers and information of the
Plaintiffs and all other similarly situated Illinois residents and
citizens.
The Plaintiffs contend that the Defendant never advised or informed
them or their legal authorized representative in writing: (a) that
it collected, stored and used the Plaintiffs' biometric identifiers
and information; or (b) of the specific purpose and length of term
for which the Plaintiffs' biometric identifiers and information
were being collected, stored and used. Defendant Microsoft never
received a written release executed by the Plaintiffs or their
legally authorized representative to obtain, collect, store or use
his biometric identifiers and information, says the complaint.
The Plaintiffs are--and remain--Illinois residents, who lived in
the Northern District of Illinois.
Defendant Microsoft developed, produced, marketed and otherwise
used facial recognition products and technologies in connection
with its business.[BN]
The Plaintiffs are represented by:
Mike Kanovitz, Esq.
Scott R. Drury, Esq.
LOEVY & LOEVY
311 N. Aberdeen St., 3rd Floor
Chicago, IL 60607
Phone: (312) 243-5902
Fax: (312) 243-5902
Email: david@loevy.com
mike@loevy.com
drury@loevy.com
- and -
David B. Owens, Esq.
LOEVY & LOEVY
100 S. King Street, Suite 100
Seattle, WA 98104
Email: david@loevy.com
- and -
Gary F. Lynch, Esq.
Katrina Carroll, Esq.
Kyle A. Shamberg, Esq.
Nicholas R. Lange, Esq.
CARLSON LYNCH LLP
111 W. Washington Street, Suite 1240
Chicago, IL 60602
Phone: (312) 750-1265
Email: glynch@carlsonlynch.com
kcarroll@carlsonlynch.com
kshamberg@carlsonlynch.com
nlange@carlsonlynch.com
MINNEAPOLIS, MN: Faces Zielinski Suit in Hennepin District Court
----------------------------------------------------------------
A class action lawsuit has been filed against City of Minneapolis
City Council, et al. The case is captioned as Jennifer Zielinski,
Minnesota Voters Alliance, Ronald Moey, Charles R. Halverson, Skip
Stoelzing, and Blair L. Johnson, on behalf of themselves and all
others similarly situated v. City of Minneapolis City Council and
Grace Wachlarowicz, acting as Director of Elections and Voter
Services, or their successors, Case No. 27-CV-20-9085 (Minn. Dist.,
Hennepin Cty., June 29, 2020).
Minnesota Voters Alliance is a non-partisan organization that is
dedicated to engaging more voters.
The Minneapolis City Council is the legislative branch of the City
of Minneapolis. The Council consists of 13 members, elected from
separate wards to four-year terms.[BN]
The Plaintiff is represented by:
Erick Gregg Kaardal, Esq.
MOHRMAN, KAARDAL & ERICKSON, P.A.
150 South Fifth Street, Suite 3100
Minneapolis, MN 55402
Telephone: (612) 341-1074
E-mail: support@mklaw.com
NATIONAL FREIGHT: Misclassification Class Action Can Proceed
------------------------------------------------------------
Tyson Fisher, writing for Land Line, reports that nearly 10 months
after filing a motion for class certification, a New Jersey federal
judge has granted National Freight Inc. driver John Portillo's
request, setting the wheels in motion for a class action
misclassification lawsuit.
On July 1, Judge Joseph H. Rodriguez of the U.S. District Court for
the District of New Jersey granted a motion for class certification
that was filed by Portillo last September. Portillo's lawsuit,
originally filed in 2015, accuses Camden, N.J.-based NFI of
intentionally misclassifying drivers as employees in order to keep
wages low.
According to the complaint, NFI entered into at least 135
independent contractor agreements with drivers that should have
been considered employees.
Now that class action has been certified, all affected drivers can
be represented in the single lawsuit.
In November 2015, a group of truck drivers filed a lawsuit against
NFI. The lawsuit alleges that the drivers were misclassified as
independent contractors. Consequently, they missed out on wages
owed if they were more properly classified as employees.
According to the complaint, NFI hired both employee drivers and
independent contractors to deliver goods from Trader Joe's
warehouses to various stores on the East Coast. The lawsuit alleges
that employees and independent contractors performed the same job.
More specifically, drivers would pick up loads in one of two
warehouses. One warehouse was in Nazareth, Pa., and the other in
Hatfield, Pa. Those loads were delivered to stores in Connecticut,
Delaware, Maine, Maryland, Massachusetts, New Hampshire, New
Jersey, New York, Pennsylvania, Rhode Island, Virginia and
Washington, D.C.
Although independent contractors were required to have their own
trucks, NFI also required that all trucks carry the NFI logo and
operate under its U.S. Department of Transportation number.
Furthermore, drivers in the lawsuit claim they were entirely
dependent on NFI for their business. According to the lawsuit, they
were not allowed to perform delivery services for anyone else
during the time at NFI.
Independent contractors would report to the Pennsylvania
distribution each day to pick up the trailers. At the same time,
employee drivers would be performing the same loading tasks. [GN]
NATIONAL FREIGHT: Third Cir. Appeal Filed in Portillo Wage Suit
---------------------------------------------------------------
Defendants National Freight Inc. and NFI Interactive Logistics Inc.
filed an appeal from a court ruling in the lawsuit entitled John
Portillo, et al. v. National Freight Inc., et al., Case No.
1-15-cv-07908, in the U.S. District Court for the District of New
Jersey.
As previously reported in the Class Action Reporter on July 15,
2020, the Hon. Judge Joseph H. Rodriguez entered an order granting
the Plaintiffs' motion for class certification.
The lawsuit is brought against the Defendants for failure to pay
delivery drivers proper wages in violation of the Massachusetts
Wage Law.
The Defendants are in the business of providing of transportation,
logistics and distribution services with its corporate headquarters
located in Cherry Hill, New Jersey.
The appellate case is captioned as John Portillo, et al. v.
National Freight Inc., et al., Case No. 20-8029, in the United
States Court of Appeals for the Third Circuit.[BN]
Plaintiffs-Respondents JOHN F. PORTILLO, RAFAEL SUAREZ, MARTIN
DURAN, GERMAN BENCOSME, EDIN VARGAS, LUIS A. HERNANDEZ, JOSUE PAZ,
and ALAVARO CASTANEDA, individually and on behalf of all others
similarly situated, are represented by:
Alexandra K. Piazza, Esq.
Camille F. Rodriguez, Esq.
BERGER MONTAGUE
1818 Market Street, Suite 3600
Philadelphia, PA 19103
Telephone: (215) 875-3000
E-mail: apiazza@bm.net
crodriguez@bm.net
- and -
Zachary L. Rubin, Esq.
LICHTEN & LISS-RIORDAN
729 Boylston Street, Suite 2000
Boston, MA 02116
Telephone: (617) 994-5800
E-mail: zrubin@llrlaw.com
Defendants-Petitioners NATIONAL FREIGHT INC. and NFI INTERACTIVE
LOGISTICS INC. are represented by:
Robert H. Bernstein, Esq.
GREENBERG TRAURIG
500 Campus Drive
Florham Park, NJ 07932
Telephone: (973) 360-7900
E-mail: bernsteinrob@gtlaw.com
- and -
Sarah R. Goodman, Esq.
Adam R. Roseman, Esq.
Christiana L. Signs, Esq.
GREENBERG TRAURIG
1717 Arch Street, Suite 400
Philadelphia, PA 19103
Telephone: (215) 988-7800
E-mail: goodmansa@gtlaw.com
rosemana@gtlaw.com
signsc@gtlaw.com
NAUTILUS INSURANCE: Dumont Class Suit Moved to W.D. Pennsylvania
----------------------------------------------------------------
The class action lawsuit captioned as DUMONT BROTHERS, INC., 505
ROCHESTER INC. BOTH D/B/A ROCHESTER INN & HARDWOOD GRILL
INDIVIDUALLY AND ON BEHALF OF A CLASS OF SIMILARLY SITUATED PERSONS
v. NAUTILUS INSURANCE COMPANY, Case No. GD-20-006542 (Filed June 5,
2020), was removed from the Pennsylvania Court of Common Pleas for
Allegheny County to the U.S. District Court for the Western
District of Pennsylvania on July 2, 2020.
The Western District of Pennsylvania Court Clerk assigned Case No.
2:20-cv-00997-AJS to the proceeding.
The complaint seeks declaratory and injunctive relief related to a
previous denial of insurance coverage by Nautilus for business
income, extra expense, contamination, civil authority, and other
coverages under the Policy, and seeks similar relief for putative
class members insured by Nautilus.
The Plaintiffs sought coverage due to impacts on their business due
to COVID-19 and the resulting March 19, 2020 order of Gov. Tom Wolf
requiring closure of non-life sustaining businesses.
Nautilus operates as an insurance company. The Company provides
provides excess and surplus lines commercial property and casualty
insurance coverage.[BN]
The Plaintiff is represented by:
James C. Haggerty, Esq.
HAGGERTY, GOLDBERG, SCHLEIFER & KUPERSMITH, P.C.
1835 Market Street, Suite 2700
Philadelphia, PA 19103
- and -
John P. Goodrich, Esq.
JACK GOODRICH & ASSOCIATES
429 Fourth Avenue
Pittsburgh, PA 15219
- and -
Scott B. Cooper, Esq.
SCHMIT KRAMER, P.C.
209 State Street
Harrisburg, PA 17101
- and -
Jonathan Shub, Esq.
KOHN SWIFT
1600 Market Street, Suite 2500
Philadelphia, PA 19103
The Defendant is represented by:
Julian E. Neiser, Esq.
SPILMAN THOMAS & BATTLE, PLLC
One Oxford Centre, Suite 3440
301 Grant Street
Pittsburgh, PA 15219
Telephone: 412 325-1116
Facsimile: 412-325-3324
E-mail: jneiser@spilmanlaw.com
NESTLE: Files Motion to Dismiss Slave Labor Class Action
--------------------------------------------------------
John O'Brien, writing for Legal Newsline, reports that Nestle is
moving on to its next defense as it fights a class action lawsuit
that claims it can't prove the cocoa it buys wasn't harvested by
children and slaves.
The company filed its motion to dismiss the lawsuit of Renee Walker
on July 1, claiming the case is one of many that attempts to use
California consumer protection laws to punish companies that buy
cocoa from West Africa.
"The Ninth Circuit has squarely rejected the theory that chocolate
companies have an obligation to affirmatively disclose details
about conditions in West Africa on their product labels," Nestle's
attorneys wrote.
"Plaintiff's lawsuit repackages this defunct theory, arguing that
the labels of unspecified 'chocolate products' affirmatively
misrepresented the conditions under which cocoa may have been
farmed.
"No reasonable consumer could come to the same conclusion."
Other companies, like Starbucks and Mars Wrigley, face similar
class actions.
The case against Nestle claims Walker bought its products based on
labels that stated Nestle "supports farmers for better chocolate"
and that the company was working to "help improve the lives of
cocoa farmers."
The company attempted to use a free speech law to fight Walker's
case, but a judge ruled the Anti-SLAPP Law did not apply.
That law is used by defendants who claim the subjects of lawsuits
are actually protected free speech.
Nestle pointed to the Nestle Cocoa Plan website, claiming its
statements about combating child and slave labor brought the case
into the scope of the Anti-SLAPP Law because they concern an issue
of public interest.
Nestle included the web address on its packaging. The argument
failed, Judge James Lorenz wrote.
"Defendant's product labels are not about environmental
sustainability and labor conditions in general," Lorenz wrote.
"They refer to Defendant's environmental and labor-related business
operations specifically.
"Accordingly, in context, the reference to the website does not
negate the purely commercial statements on the product labels."
[GN]
NEVADA: DETR Faces Class Action Over Delayed PUA
------------------------------------------------
Faith Jessie, writing for KSNV, reports that Nevada's Department of
Employment, Training, and Rehabilitation is facing a class-action
lawsuit from those Nevadans still waiting on Pandemic Unemployment
Assistance or PUA.
On July 7, Judge Barry Breslow appointed attorney Jason Guinasso of
Hutchison and Steffen Attorneys to meet with both DETR officials
and lawyers from Thierman Buck, the law firm representing those in
the PUA class-action suit.
Guinasso is expected to speak with the two parties on potential
solutions to get those eligible for PUA funding out of "pending"
status.
It's been nearly four months since the state's shutdown and
thousands of Nevadans who say they are owed PUA funding have not
received payments.
Those eligible for PUA funding include gig workers, those who are
self-employed, and self-contractors.
According to Mark Thierman, one of the attorneys representing the
class action suit, DETR is acting as a gatekeeper for funds,
spending too much time blocking fraud, rather than acting as an
enabler to help get CARES Act funds to those in need.
He says the current system in place has left thousands of people in
a "pending" state in the system, preventing them from getting any
funds.
Here's the issue. Those gig workers and self-employed are eligible
for PUA but they can't receive it if they are eligible for
traditional "UI" unemployment funds. You can't get paid both.
According to DETR, nearly 50,000 people haven't received PUA
because the system flags them as eligible for traditional
unemployment.
Until someone in the DETR office manually looks into this glitch,
workers remain in the pending state. Thierman says people have been
waiting far too long because of the delay.
DETR says they have paid more than 107,000 people eligible for PUA
and have taken steps to speed up the process. They say they have no
direct way to hire personnel to speed up the vetting process as the
hiring process is also state-regulated.
Judge Breslow set another hearing for July 16 to hear the
recommendations from Guinasso on how to move forward, after he
speaks with both parties. [GN]
NEW HDM: Villanueva Sues Over Unpaid Minimum and Overtime Wages
---------------------------------------------------------------
Maria Jovia Villanueva, on behalf of herself, and other similarly
situated employees v. NEW HDM, INC., doing business as HUNAN
DELIGHT RESTAURANT, and CHIN FANG WANG-LIN, and RICHA WANG,
individually, Case No. 1:20-cv-05402 (S.D.N.Y., July 14, 2020),
alleges that pursuant to the Fair Labor Standards Act and the New
York Labor Law, the Plaintiff is entitled to recover from the
Defendants unpaid wages, minimum wages, and overtime
compensations.
The lawsuit also seeks to recover unpaid "spread of hours" premium
for each day she worked more than 10 hours, liquidated damages and
statutory penalties pursuant to the New York Wage Theft Prevention
Act, prejudgment and post-judgment interest, and attorneys' fees
and costs.
According to the complaint, work performed above 40 hours per week
was not paid at time and one-half the Plaintiff's regular rate of
pay as required by state and federal law. The Plaintiff was not
provided with a wage statement, detailing her hours worked, her
hourly rate of pay, the basis for her compensation, itemizing any
withholdings, and setting forth her net pay.
The Defendants knowingly and willfully operated their business with
a policy of not paying the Plaintiff wages for all hours worked;
minimum wages; or overtime (if time and one-half), in violation of
the FLSA and NYLL, says the complaint.
The Plaintiff was employed by the Defendants as a dishwasher, food
preparer, and cleaner/general helper at the Defendant's Asian
restaurant.
The Defendants owns and operates an Asian restaurant known as
"Human Delight" located in the City of New York.[BN]
The Plaintiff is represented by:
Justin Cilenti, Esq.
Peter H. Cooper, Esq.
CILENTI & COOPER, PLLC
10 Grand Central
155 East 44th Street, 6th Floor
New York, NY 10017
Phone: (212) 209-3933
Email: pcooper@jcpclaw.com
NEW YORK HEALTH: Home Attendants Class in Andryeyeva Suit Certified
-------------------------------------------------------------------
In the case, LILYA ANDRYEYEVA and MARINA ODRUS, individually and on
behalf of all others similarly situated, Plaintiffs, v. NEW YORK
HEALTH CARE INC., d/b/a NEW YORK HOME ATTENDANT AGENCY and MURRY
ENGLARD Defendants, Docket No. 14309/2011, Motion Seq. No. 5 (N.Y.
Sup.), Judge Larry D. Martin of the Kings County Supreme Court
granted the Plaintiffs' motion for class certification.
Defendant New York Health Care is an agency licensed by the New
York State Department of Health to provide home attendant services
to elderly and disabled clients in their homes. The Defendants
employed home attendants who often work live-in shifts where they
stay in the homes of the patients for 24 hours.
Plaintiffs Andryeyeva and Odrus are home attendants employed by the
Defendants. Home attendants are trained by the Defendants of their
duties and responsibilities as live-in home attendants. The
Plaintiffs allege that, during their employment as live-in home
attendants, they frequently were unable to sleep for five
uninterrupted hours due to their clients' medical conditions and
needs. They also allege that 14 current and former employees of
the Defendants have attested through submitted affidavits that they
also never received eight hours of sleep with five uninterrupted
hours while working live-in shifts.
Plaintiffs Andryeyeva and Odrus, individually and on behalf of all
others similarly situated, move for class certification, certifying
the case as a class action pursuant to CPLR 901 and 902, requiring
production of updated class payroll and address data, and
authorizing notice of the action to the putative class by first
class mail pursuant to CPLR 904. The Plaintiffs contend that
courts have certified classes despite the need to calculate
individualized damages, and the putative class satisfies CPLR 901
and 902. Alternatively, the putative class members move to
intervene and the Plaintiffs also ask for class notice of
decertification.
The Plaintiffs ask the Court to certify the class as follows:
Home attendants who worked 24-hour shifts for New York Health
Care Inc. between June 22, 2005, and the date the Defendants
cease, or are enjoined from, not paying the class members the
minimum, overtime, and spread of hours wages for all 24 hours
of each 24-hour shift.
In the alternative, if the Court rules against class certification,
14 putative class members move to intervene pursuant to CPLR 1013,
and the Plaintiffs also move for class notice of decertification,
notifying absent class members of their right to bring individual
cases and that the statute of limitations is tolled during the
pendency of the class allegations in the case.
The Defendants oppose the motion, arguing that the instant motion
violated the Court of Appeals decision and order from July 2019,
the individualized issues still predominate the class, and the
Plaintiffs failed to satisfy the requirements for typicality and
numerosity.
The Plaintiffs argue that the COA decision only requires the Court
to reconsider whether the Plaintiffs can establish the requirements
of commonality, typicality, and predominance and that Justice
Demarest's September 2014 decision holding the remaining CPLR 901
and 902 factors were satisfied is undisturbed by the COA's ruling
and remains the law of the case.
Judge Martin agrees and only considers whether the Plaintiffs has
satisfied the requirements of commonality, typicality, and
predominance to warrant a grant to the motion for class
certification and adopts the findings by Justice Demarest in the
Second-Class Motion. The Judge finds that the Plaintiffs have
satisfied said requirements.
For these reasons, Judge Martin granted the Plaintiffs' motion for
class certification. The June 22, 2005 date is in dispute and the
Judge makes no finding as to the appropriate date for the
commencement of the Plaintiffs' claims at this time. The motion is
granted without prejudice to the Defendants to make the appropriate
motion regarding disputed date. The Judge denied as moot the
motion to intervene and for notice of class decertification. The
Defendants' other contentions are without merit.
A class is certified pursuant to CPLR 901 and 902 consisting of:
Home attendants who worked 24-hour shifts for New York Health
Care Inc. between June 22, 2005, and the date the Defendants
cease, or are enjoined from, not paying the class members the
minimum, overtime, and spread of hours wages for all 24 hours
of each 24-hour shift.
The Notice of the action to the putative class by first class mail
is authorized pursuant to CPLR 904. The Decision/Order constitutes
the decision and order of the Court.
A full-text copy of the District Court's May 15, 2020
Decision/Order is available at https://is.gd/J6bOEz from
Leagle.com.
NEW YORK, NY: Aspen Athletic Clubs File Class Action
----------------------------------------------------
Teri Weaver, writing for Syracuse.com, reports that a Syracuse-area
gym owner is suing Gov. Andrew Cuomo to force him to allow indoor
gyms to reopen amid the coronavirus.
Aspen Athletic Clubs sued the governor, the state attorney general
and New York in state court in early July, claiming the decision to
keep gyms closed is an arbitrary and selective enforcement of the
executive's power.
The lawsuit argues Cuomo and the state are not treating businesses
equally, allowing salons and spas to offer services but keeping
gyms shut. The lawsuit also argues that the governor's decisions
were made without any due process afforded to those affected by the
rules.
But the lawsuit goes beyond an attempt to reopen gyms. It asks the
Supreme Court in Onondaga County to void Cuomo's lockdown orders
and prevent the governor from issuing similar orders in the
future.
"In short, plaintiff brings this lawsuit to define the limits of a
state's police power," the complaint says.
A spokesman for Cuomo said on July 12 the governor's actions were
consistent with powers granted by the New York State Legislature.
"The measures the governor has taken were intended to -- and did --
curb the rise of infection in the state," spokesman Jason Conwall
said. "They also allowed us to avoid subsequent spikes of
infection."
Cuomo has been reluctant to reopen malls, gyms and movie theaters,
citing concerns about the prolonged exposure to potential virus in
enclosed spaces. He allowed malls in some regions, including
Central New York, to reopen on but only after they installed
special ventilation systems.
The lawyer bringing the case, James Mermigis of Long Island, is
representing hundreds of gyms across the state in a class action
lawsuit demanding that the athletic centers be reopened, Newsday
reported. That class action suit is asking the state for $500
million to make up for lost revenue and 70,000 layoffs, Newsday
reported.
Since closing on March 16, Aspen has lost 1,400 members and owes
$396,000 in back rent, the lawsuit says.
Aspen employs 160 people at four locations in Onondaga County, the
lawsuit says. The company's monthly bills come to $250,000,
according to legal papers.
In the lawsuit, Aspen argues that gyms should be considered
essential businesses because of the well-being for members and the
"financial viability and health" of its owners.
Plus, the lawsuit argues, tanning, nail and some spa services are
now reopened. The lawsuit calls Cuomo's announcement on June 25 to
keep gyms closed "arbitrary." Other states, such as Connecticut and
Pennsylvania, have reopened gyms.
Some other states that reopened more businesses sooner are now
seeing sharp increases, Conwall added. As of July 12 Florida
surpassed 15,000 confirmed cases in one day and set a new statewide
record for daily caseloads.
"I understand some people aren't happy -- but better unhappy than
sick or worse," Conwall said in response to questions.
But the lawsuit also argues that Cuomo's lockdown actions taken
earlier this year were meant to "flatten the curve" -- to limit the
spread of the virus -- "not to eradicate the virus."
New York on July 12 reported 677 new confirmed cases from July 11,
down from a high of more than 11,000 cases in mid-April.
Health officials have said that indoor activity involves more
transmission risks than outdoor activity. A recent Norwegian study
showed that gyms can be safe if precautions are enforced, the Wall
Street Journal reported. A four-hour class in South Korea, in
February, infected dozens, Business Insider reported.
Aspen says it has a series of rules ready to go, including
touchless check-in for members, hourly cleaning of equipment by
staff and allowing only every-other cardio machine to be used.
Classes would be limited to one person per 200 square feet, the
lawsuit says.
At least one lawsuit has been effective in forcing Cuomo to adjust
his shutdown orders.
In late June, a federal judge ordered the state to allow religious
worship to be at 50-percent capacity to match the rules for
businesses and other gatherings. [GN]
NEW YORK: 2nd Cir. Appeal v. Flemming Filed in Gulino Bias Suit
---------------------------------------------------------------
Defendant Board of Education of the City School District of the
City of New York filed an appeal from the District Court's Judgment
dated May 29, 2020, entered in the lawsuit styled GULINO, ET AL. v.
THE BOARD OF EDUCATION OF THE CITY SCHOOL DISTRICT OF THE CITY OF
NEW YORK, Case No. 96-cv-8414, in the U.S. District Court for the
Southern District of New York (New York City).
As previously reported in the Class Action Reporter, the
Plaintiffs, a group of African-American and Latino teachers in the
New York City public school system, alleged that the Defendant, the
Board of Education of the City School District of the City of New
York, violated Title VII of the Civil Rights Act of 1964, 42 U.S.C.
Section 2000e et seq., by requiring Plaintiffs to pass certain
racially discriminatory standardized tests in order to obtain a
license to teach in New York City public schools. Judge Constance
Baker Motley, to whom the case was originally assigned, certified
the plaintiff class on July 13, 2001, pursuant to Federal Rule of
Civil Procedure 23(b)(2).
On December 5, 2012, the Court decertified the Plaintiff class to
the extent it sought damages and individualized injunctive relief
in light of the Supreme Court's decision in Wal-Mart Stores, Inc.
v. Dukes, 131 S.Ct. 2541 (2011). The class survived, however, to
the extent Plaintiffs sought relief that may be awarded under Rule
23(b)(2), including a declaratory judgment regarding liability and
classwide injunctive relief.
The appellate case is captioned as In re: New York City Board of
Education, Case No. 20-2126, in the United States Court of Appeals
for the Second Circuit.[BN]
Plaintiff-Appellee Saundra Flemming is represented by:
Joshua S. Sohn, Esq.
STROOCK & STROOCK & LAVAN LLP
180 Maiden Lane
New York, NY 10038
Telephone: (212) 806-1245
Email: jsohn@stroock.com
Defendant-Appellant Board of Education of the City School District
of the City of New York is represented by:
James Edward Johnson, Esq.
CORPORATION COUNSEL
NEW YORK CITY LAW DEPARTMENT
100 Church Street
New York, NY 10007
Telephone: (212) 356-2500
NEW YORK: 2nd Cir. Appeal v. Gathers Filed in Gulino Bias Suit
--------------------------------------------------------------
Defendant Board of Education of the City School District of the
City of New York filed an appeal from the District Court's Judgment
dated May 29, 2020, entered in the lawsuit styled GULINO, ET AL. v.
THE BOARD OF EDUCATION OF THE CITY SCHOOL DISTRICT OF THE CITY OF
NEW YORK, Case No. 96-cv-8414, in the U.S. District Court for the
Southern District of New York (New York City).
As previously reported in the Class Action Reporter, the
Plaintiffs, a group of African-American and Latino teachers in the
New York City public school system, alleged that the Defendant, the
Board of Education of the City School District of the City of New
York, violated Title VII of the Civil Rights Act of 1964, 42 U.S.C.
Section 2000e et seq., by requiring Plaintiffs to pass certain
racially discriminatory standardized tests in order to obtain a
license to teach in New York City public schools. Judge Constance
Baker Motley, to whom the case was originally assigned, certified
the plaintiff class on July 13, 2001, pursuant to Federal Rule of
Civil Procedure 23(b)(2).
On December 5, 2012, the Court decertified the Plaintiff class to
the extent it sought damages and individualized injunctive relief
in light of the Supreme Court's decision in Wal-Mart Stores, Inc.
v. Dukes, 131 S.Ct. 2541 (2011). The class survived, however, to
the extent Plaintiffs sought relief that may be awarded under Rule
23(b)(2), including a declaratory judgment regarding liability and
classwide injunctive relief.
The appellate case is captioned as In re: New York City Board of
Education, Case No. 20-2192, in the United States Court of Appeals
for the Second Circuit.[BN]
Plaintiff-Appellee Janet Gathers is represented by:
Joshua S. Sohn, Esq.
STROOCK & STROOCK & LAVAN LLP
180 Maiden Lane
New York, NY 10038
Telephone: (212) 806-1245
Email: jsohn@stroock.com
Defendant-Appellant Board of Education of the City School District
of the City of New York is represented by:
James Edward Johnson, Esq.
CORPORATION COUNSEL
NEW YORK CITY LAW DEPARTMENT
100 Church Street
New York, NY 10007
Telephone: (212) 356-2500
NORTH PACIFIC SEAFOOD: Faces Class Suit Over Involuntary Quarantine
-------------------------------------------------------------------
Megan Nevin, Esq.--mnevin@fisherphillips.com--and Alden Parker,
Esq.--aparker@fisherphillips.com--of Fisher Phillips, in an article
for JDSupra, report that a class action lawsuit filed in Los
Angeles County alleges that a seafood company exposed seasonal
employees to COVID-19 and then forced them, with the help of a
hotel, to quarantine in hotel rooms against their will--and without
pay. This class action is an extreme example of the new wave of
COVID-19 lawsuits involving costly wage and hour claims against
employers. But is likely to be one of many such lawsuits that will
be filed as businesses work to navigate their legal obligations to
their employees in the landscape of COVID-19. What can your
business learn from this Los Angeles county suit?
The Allegations
Jane Doe, a woman who prefers to remain unnamed in this suit,
alleges that her employer, North Pacific Seafood, Inc., flew her
and 150 other seasonal employees to Los Angeles before further
transporting them to a fish canning factory in a remote Alaskan
village. Jane Doe claims that North Pacific did not comply with
county and state health measures, forcing them to be in close
proximity to each other without any protection, social distancing,
or proper hygiene for more than six hours. Jane Doe claims that
employees received COVID-19 tests and were forced to quarantine in
hotel rooms at the Crown Plaza Hotel while waiting for test
results. When three employees' tests came back positive, Jane Doe
claims that North Pacific and the hotel where the employees were
tested, forced all employees to continue to quarantine for 10
additional days without pay.
During the quarantine, employees were locked in and not allowed to
leave their hotel rooms, were only provided two meals per day, and
were not allowed to order additional food or supplies from room
service or elsewhere. Jane Doe alleges that employees were told
they would be terminated if they violated the quarantine rules.
Jane Doe's suit alleges that North Pacific should have paid the
employees for their time in mandatory quarantine and failed to do
so. This case is in the early stages of litigation, and it is
critical to keep in mind that these allegations have not been
proven in any manner. The employer will have an opportunity to
offer a defense to all of the charges against it. Regardless of the
validity of these claims, however, reviewing these allegations is
still a helpful exercise for your business in determining the best
way to stay on the right side of the law during these unprecedented
times.
Wage and Hour Obligations Remain Despite COVID-19 Precautions
The best way for employers to protect their employees and to
protect against future litigation is strict compliance with
federal, state, and local health orders. The Centers for Disease
Control and Prevention makes recommendations, including but not
limited to, maintaining social distancing between employees;
encouraging employees who are sick to stay home (quarantine); and
establishing routine, daily employee health checks (i.e.
temperature checks or symptom surveys). Be sure to check your state
and local orders because these orders may contain additional safety
requirements. An important consideration for employers with
COVID-19 safety procedures (think temperature checks or symptom
questionnaires, or here, quarantine) is whether they have to pay
employees for the time it takes to comply with the employer's
safety procedures? The answer is: maybe.
The federal Fair Labor Standards Act (FLSA) requires that employees
be paid for "principal activities or activities which employees are
employed to perform." Principal activities include all activities
that are "an integral and indispensable part of the employee's
principal activities." An activity is integral and indispensable,
and compensable, if it is "an intrinsic element of the principal
activities and one that the employee must do in order to perform
their principal activities." Courts have held that the following
are examples of employee-compensable time: time spent by battery
plant employees showering and changing clothes after working with
toxic chemicals; time spent by meat packer employees spent
sharpening their knives because dull knives would slow down
production, affect quality of the meat, and lead to accidents; and
time that poultry plant employees spent walking between the
changing area where they put on protective gear and their work
area.
Under the FLSA, if an employer fails to pay an employee minimum
wage, the employee may seek recovery of the unpaid wages, an equal
amount in liquidated damages, and attorneys' fees and costs. Many
states throughout the country have additional wage protection laws
for employees. For example, California similarly requires that the
employees be paid minimum and overtime wages for all hours worked
for the employer. "Hours worked" means the time during which an
employee is "subject to the control" of an employer.
Whether an employer must compensate an employee for time spent
doing temperature checks and symptom surveys is a fact-specific
question for each employer. For the time being only, measuring
employees' temperatures may be like situations where employees must
put on protective gear in order to safely perform their jobs. But,
there is also some guidance that suggests that employees waiting to
have their temperature taken or respond to a symptom survey may be
performing activities too far removed from principal job activities
to be compensated.
What Should Employers Do?
The safest approach is to pay non-exempt employees their regular
wages during their compliance with employer-mandated COVID-19
safety measures, especially in employee-forward states like
California. This means paying employees to have their temperatures
checked or participate in symptom questionnaires. If an employer
makes the decision not to pay employees wages for their
participation in COVID-19 safety measures, this decision should be
made under the careful direction of employment counsel. This is an
easy area to in which to identify and prevent potential liability.
Employers have the opportunity to pay employees limited current
wages to avoid substantial future litigation costs. [GN]
NORTH PACIFIC: Fails to Pay Minimum and OT Wages, Doe Suit Says
---------------------------------------------------------------
JANE DOE, Individually and on Behalf of all Similarly Situated
Individuals v. NORTH PACIFIC SEAFOODS, INC.; INTERNCONTINENTAL
HOTELS GROUP PLC.; and DOES 1 THROUGH 100, inclusive, Case No.
CGC20585097 (Cal. Super., San Francisco Cty., July 2, 2020),
asserts claims against the Defendants for failure to pay minimum
wages and overtime wages pursuant to the California Labor Code.
The Plaintiff contends that the Defendants unlawfully imprisoned
her and the Class, forced them to work without pay, and denied them
minimum wages and overtime wages for all hours worked, in violation
of the Labor Code, Penal Code, Business and Professions Code, and
other California laws.
The Plaintiff brings this action to obtain damages and restitution,
as well as injunctive relief, individually and on behalf of the
proposed class
The case is assigned to the Hon. Judge Garrett L. Wong.
The Class Members are seasonal workers, who are employed by
Defendant North Pacific to process seafood at its Red Salmon
Cannery in Naknek, Alaska, between June and August 2020.
North Pacific Seafoods, Inc., engages in harvesting, processing,
and transporting seafood products. InterContinental Hotels is a
British multinational hospitality company headquartered in Denham,
Buckinghamshire, England.[BN]
The Plaintiff is represented by:
Robert Stephen Arns, Esq.
THE ARNS LAW FIRM
515 Folsom St., 3rd FL.
San Francisco, CA 94105
Telephone: (415) 495-7800
Facsimile: (415) 495-7888
E-mail: rsa@arnslaw.com
The Defendants are represented by:
Marc H. Axelbaym, Esq.
PILLSBURY WINTHROP SHAW PITTMAN LLP
Four Embarcadero Center, 22nd Floor
San Francisco, CA 94111- 5998
NOVARTIS: Alfred G. Yates Investigates Breach of Fiduciary Claims
-----------------------------------------------------------------
Law Office of Alfred G. Yates Jr, P.C. urges long term shareholders
in Novartis AG ("Novartis" or "the Company") (NVS) to contact us to
learn more about your rights. The firm is investigating whether
Novartis directors breached their fiduciary duties.
email us at: yateslaw@aol.com, info@yatesclassactionlaw.com
phone an Attorney Now: (412) 391-5164, 1-844-391-5164
Novartis AG (NVS) Shareholder Investigation:
The investigation concerns whether Novartis and the board of
directors may have breached its fiduciary duties to shareholders by
violating Medicare anti-kickback laws and the Foreign Corrupt
Practices Act.
On July 1, 2020, Novartis reached a $687 million settlement in a
civil fraud lawsuit that alleged the company bribed doctors at
speaker events it organized. The United States Department of
Justice was investigating Novartis on claims it violated the
federal False Claims Act and Anti-Kickback Statute by providing
doctors with cash payments and other inducements, which led them to
prescribe Novartis drugs reimbursed by federal healthcare programs.
The company also agreed to an additional $51 million settlement
related to the company's use of three foundations to funnel
payments to cover costs for patients taking its multiple sclerosis
drug Gilenya and kidney cancer drug Afinitor.
On June 25, 2020, Novartis agreed to pay $225 million in criminal
penalties and disgorge $112 million to settle bribery allegations.
The U.S. Department of Justice and the Securities and Exchange
Commission was investigating Novartis on claims that: (1) Novartis
had bribed doctors and hospitals in Greece to prescribe
"Novartis-branded pharmaceuticals"; (2) the Company had paid bribes
in Vietnam to advance their business; and (3) Novartis falsified
their financial records to conceal said activities.
Attorney Advertising. Past results do not guarantee a similar
outcome.
Alfred G. Yates Jr., Esquire
Pennsylvania Super Lawyers 2020
Law Office of Alfred G. Yates Jr., PC
(412) 391-5164
1-844-391-5164
yateslaw@aol.com
info@yatesclassactionlaw.com [GN]
NTN BROTHERS: Fails to Pay OT Wages Under FLSA, Villalta Claims
---------------------------------------------------------------
Geovani Villalta, individually and on behalf of all others
similarly situated v. NTN BROTHERS CORPORATION d/b/a CHILLERS
GRILL, DEREK EBID, and NICK STATHATOS, Case No.
2:20-cv-08911-MCA-LDW (D.N.J., July 14, 2020), alleges that the
Defendants violated the Fair Labor Standards Act of 1938, the New
Jersey Wage and Hour Law, the New Jersey Wage Payment Law, and the
Internal Revenue Code by failing to pay the Plaintiff and the FLSA
collective overtime compensation, and by regularly reporting
fraudulent information to the United States Internal Revenue
Service with respect to the Plaintiff's employment.
Although the Plaintiff regularly worked in excess of 40 hours per
week during the Plaintiff's employment with the Defendants, the
Defendants failed to compensate the Plaintiff at a rate of one and
one-half times the regular hourly rate of pay or the applicable
minimum wage, whichever is greater, for all hours worked in excess
of 40 hours per week, says the complaint.
The Plaintiff worked for the Defendants as a chef from June 2015
until September 15, 2019.
Chillers Grill is a cafe and restaurant that serves American
food.[BN]
The Plaintiff is represented by:
Nicola Ciliotta, Esq.
KATZ MELINGER PLLC
280 Madison Avenue, Suite 600
New York, NY 10016
Phone: (212) 460-0047
Facsimile: (212) 428-6811
Email: nciliotta@katzmelinger.com
OCERA THERAPEUTICS: 9th Cir. Upholds Securities Suit Dismissal
--------------------------------------------------------------
The United States Court of Appeals for the Ninth Circuit upheld
dismissal of the Ocera Therapeutics Inc. securities litigation.
The appellate case is IN RE: OCERA THERAPEUTICS, INC. SECURITIES
LITIGATION. WILLIAM PAULUS, Plaintiff-Appellant, and SAMUEL P.
CLARKE, Plaintiff, v. OCERA THERAPEUTICS, INC., ECKARD WEBER, LINDA
GRAIS, WENDELL WIERENGA, ANNE VANLENT, STEVEN JAMES, NINA KJELLSON,
WILLARD H. DERE, MALLINCKRODT PLC, MAK LLC, and MEH ACQUISITION
CO., Defendants-Appellees. No. 18-17345. (9th Cir.).
On April 26, 2018, Plaintiff-Appellant William Paulus and Plaintiff
Samuel Clarke filed a consolidated class action complaint alleging
that Defendants-Appellees Ocera Therapeutics, Inc. (Ocera) and
members of the board of directors of Ocera made misleading
statements and omissions in tender-offer-related disclosures on a
Schedule 14D-9 filed with the U.S. Securities and Exchange
Commission (SEC) on November 9, 2017 and December 1, 2017, in
violation of Sections 14(e) and 20 of the Securities Exchange Act
of 1934.
On October 16, 2018, the district court granted
Defendants-Appellees' motion to dismiss the complaint with leave to
amend, and, after Plaintiffs chose not to amend the complaint,
entered judgment in favor of Defendants-Appellees on November 8,
2018.
William Paulus timely appealed.
The Ninth Circuit affirms the district court's dismissal of the
complaint on the ground that the complaint fails to adequately
plead loss causation.
The complaint alleges that as a direct and proximate result of the
dissemination of the false and/or misleading disclosures on
November 9, 2017, Plaintiffs and the Class have suffered damage and
actual economic losses measured as the difference between the price
Ocera stockholders received and the true value of their shares at
the time of the acquisition of Ocera by Mallinckrodt plc.
The primary factual allegation supporting the assertion of a higher
true value is that, according to marketbeat.com, the consensus
price target for Ocera by securities analysts between September
2017 and December 2017, i.e., around the time of the tender offer
ranged from $2.67 to $4.50 per share, while the actual merger
consideration consisted of $1.52 upfront cash payment per share,
increasing to a maximum potential, but contingent, value of $4.10
per share if certain goals were met.
The suggestion that the analysts' opinions of what the shares might
be worth were different from what was actually received, let alone
that they represented the shares' true value, is too speculative to
plead with particularity that shareholders experienced losses or to
plead with particularity that the required causal relationship
existed between Ocera's purported misrepresentations or omissions
and those losses.
Indeed, the actual market price of Ocera's shares on the date of
the entry into the merger agreements was only $1.00 per share.
The only other allegations in the complaint on the issue of loss
causation are the suggestions that higher financial projections
created by Ocera management and approved by the Ocera board on June
20, 2017 (June Projections), rather than lower projections approved
by the Ocera board on November 1, 2017 in connection with the
merger, reflected the true value of Ocera and that its shareholders
would not have tendered their shares if they had known of the June
Projections.
The Ninth Circuit therefore concludes that the complaint fails to
adequately plead loss causation. Because this conclusion is
sufficient to affirm the dismissal, the Ninth Circuit does not
reach the other issues raised by Plaintiff-Appellant.
A full-text copy of the Ninth Circuit's May 28, 2020 Memorandum is
available at https://tinyurl.com/ycntme6m from Leagle.com.
OLSON RESEARCH: Dismissal of Fischbein & Mauthe Suits Reversed
--------------------------------------------------------------
The U.S. Court of Appeals for the Third Circuit reversed the
district courts' dismissal of the cases, DR. RICHARD E. FISCHBEIN,
Appellant, v. OLSON RESEARCH GROUP, INC.; JOHN DOES 1-12. ROBERT W.
MAUTHE M.D., P.C., Individually and as the representative of a
class of similarly situated persons, Appellant, v. ITG, INC.; ITG
INVESTMENT RESEARCH, INC.; M SCIENCE LLC, Case Nos. 19-3018,
19-3222 (3d Cir.).
In the pair of appeals, the Third Circuit is asked to decide
whether faxes soliciting participation by the recipients in market
research surveys in exchange for monetary payments are
advertisements within the meaning of the Telephone Consumer
Protection Act ("TCPA"), which prohibits the transmission of
unsolicited fax advertisements.
Dr. Mauthe operates a medical practice in Pennsylvania. He is a
frequent litigant; one might say he has a sub-specialty in suing
people under the TCPA. Between August of 2014 and March of 2015,
he received five faxes from ITG Market Research ("ITG"). Three of
them offered $200 in exchange for an hour of Mauthe's time
participating in a telephone survey about catheter usage in spinal
cord injury patients. The other two faxes offered him $60 for
taking a 25-minute internet survey on neurological movement
disorders. Both sets of faxes stated that the message is not a
solicitation or advertisement for purchase/sale of any products
and/or services from ITG Market Research. ITG is a company that
provides data to various healthcare providers to aid in their
decision-making processes.
Dr. Fischbein is a psychiatrist with a private practice in
Pennsylvania. In May of 2017, he received a fax from defendant
Olson Research offering him $150 in exchange for his participation
in a study on the management of disorders in neurological patients.
Olson Research is a marketing research firm, with healthcare as
one of its specialties.
Applying its recent precedent in Mauthe v. Optum, Inc., the
District Courts dismissed both cases under Federal Rule of Civil
Procedure 12(b)(6) as the Courts concluded that such surveys are
not advertisements within the TCPA because they did not attempt to
sell anything to their recipients.
Judge Greenberg holds, however, that solicitations to buy products,
goods, or services can be advertisements under the TCPA and the
solicitations for participation in the surveys in exchange for $200
by one sender and $150 by the other sender were for services within
the TCPA. The Defendants characterize the proposed payments as
"honorariums" or "gifts".
The Judge holds that a recipient may regard a fax soliciting
participation in an unpaid market survey to be no less intrusive or
annoying than a fax that offers to pay the recipient for
participating in the survey. She says the Court is constrained in
reaching the decision by what the TCPA actually prohibits -- it
does not prohibit all unsolicited faxes, just advertisements. And
the TCPA defines advertisement as including property, goods, or
services that are "commercially available." An offer of payment in
exchange for participation in a market survey is a commercial
transaction, so a fax highlighting the availability of that
transaction is an advertisement under the TCPA.
In view of her analysis, the Judge reversed the District Courts'
dismissal of these cases by orders dated Aug. 26, 2019, in
Fischbein v. Olson Research Group, No. 19-3018, and Aug. 29, 2019,
in Mauthe v. ITC, Inc., No. 19-3222, and remanded the cases to the
District Courts for further proceedings.
A full-text copy of the Third Circuit's May 15, 2020 Opinion is
available at https://is.gd/jtVvgq from Leagle.com.
Phillip A. Bock -- service@classlawyers.com -- (Argued), Robert M
Hatch, David M. Oppenheim, Bock Hatch Lewis & Oppenheim, 134 North
La Salle Street, Chicago, IL 60602, Counsel for Appellant in No.
19-3018.
Samantha L. Southall, (Argued), Buchanan Ingersoll & Rooney, 50
South 16th Street, Two Liberty Place, Suite 3200, Philadelphia, PA
19102, Attorneys for Appellee in No. 19-3018
Phillip A. Bock, (Argued), Molly S. Gantman, David M. Oppenheim,
Bock Hatch Lewis & Oppenheim, 134 North La Salle Street, Suite
1000, Chicago, IL 60602.
Daniel J. Cohen, P.O. Box 432040, Maplewood, MO 63143.
Andrew J. Reilly, Swartz Campbell, 115 North Jackson Street, Media,
PA 19063.
Richard E. Shenkan -- rshenkan@shenkanlaw.com -- Shenkan Injury
Lawyers, P.O. Box 7255, New Castle, PA 16107, Attorneys for
Appellant in No. 19-3222.
Francis J. Earley, (Argued), Mintz Levin Cohn Ferris Glovsky &
Popeo, The Chrysler Center, 666 Third Avenue, New York, NY 10017.
Esteban Morales, Mintz Levin Cohn Ferris, 2029 Century Park East,
Suite 3100, Los Angeles, CA 90067.
James W. Kraus, Pietragallo Gordon Alfano Bosick & Raspanti, 301
Grant Street, One Oxford Centre, 38th Floor, Pittsburgh, PA 15219.
Kevin E. Raphael, Pietragallo Gordon Alfano Bosick & Raspanti, 1818
Market Street, Suite 3402, Philadelphia, PA 19103, Attorneys for
Appellee ITG, INC. in No. 19-3222.
Patrick D. Doran, (Argued), Thomas P. Manning, Craig D. Mills,
Buchanan Ingersoll & Rooney, 50 South 16th Street, Two Liberty
Place, Suite 3200, Philadelphia, PA 19102, Attorneys for Appellees
ITG Investment Research, Inc. and M Science LLC in No. 19-3222.
OREGON: Judge OKs fees in $1.1BB Lawsuit v. Dept. of Forestry
-------------------------------------------------------------
Lebanon Express reports that The Portland-based law firm Davis
Wright Tremaine could receive up to $159 million in legal fees
associated with a $1.1 billion class action breach of contract
lawsuit held in Linn County Circuit Court last fall.
Linn County and other taxing districts charged the
state--specifically the Oregon Department of Forestry--breached
decades-old contracts to manage state forests within the counties
for the greatest permanent value. The class members argued that for
about 20 years the state has allowed other interests such as
wildlife and recreation to reduce the annual payments to the taxing
districts.
Judge Thomas McHill said that the firm's 15% contingency fee was
not out of line, considering the fact Davis Wright Tremaine was the
sole law firm representing the class action members and took a big
risk over the five years the lawsuit evolved and went to trial.
Attorney John DiLorenzo said that although the amount may seem
high, it is far less than contingency percentages approved in other
lawsuits.
"It's less than two months' interest on what was an eye-popping
judgment," DiLorenzo said.
Currently, the judgment is incurring 9% per interest, about
$262,000 per day or $90 million per year, as the lawsuit awaits
appeals by the state.
State's attorney Christina Beatty-Walters said the state did not
oppose the contingency award as long as it did not add to the total
judgment and is to be paid by the individual class members'
awards.
Davis Wright Tremaine will also be paid its actual out-of-pocket
expenses of $598,322 on top of the contingency fee, McHill said.
DiLorenzo said his office devoted more than 13,000 hours to the
case.
DiLorenzo said that research indicates that customary contingency
fees for complex class action lawsuits range from 20% to 30%.
"The only time contingency fees are less than 15% are when numerous
law firms are involved and diversify the risk," DiLorenzo said.
"Yes, it's a big number, but it was an eye-popping judgment, a
record. The largest jury verdict in Oregon history."
DiLorenzo said all of the class members were notified of the fee
before the lawsuit began and an advisory council composed of
attorneys representing each of the class members met regularly.
DiLorenzo said he was pleased that none of the class members
presented opposition to the fee by the July 1 deadline.
In making his decision, Judge McHill said the advisory committee
was a good idea.
"Getting the advisory committee involved early on so the class
action members were informed about the possible fee from the outset
was a very good arrangement," he said. "They had many opportunities
to ask questions or object all along the way. That's unique."
Davis Wright Tremaine will not get paid until the lawsuit is
settled or appeals are exhausted, DiLorenzo said after the
hearing.
If the case is settled for less than the $1.1 billion judgment, the
law firm's fee will be 15% of the new figure, plus actual
expenses.
"We negotiated this fee with Roger Nyquist before this got
rolling," DiLorenzo said. "All of the class members are government
agencies and we assume they will do good things with the money they
receive. We are ready for that to begin."
DiLorenzo said attorneys for his law firm and the state are
currently checking the more than 5,000 pages of trial transcripts
for errors.
The case was originally filed on March 10, 2016, and went to trial
in Linn County Circuit Court in late October 2019. On Nov. 21, the
12-person jury ruled in favor of the plaintiffs, who had charged
that the Oregon Department of Forestry breached a contract formed
in 1941 that called for management of some 700,000 acres of state
forests in 14 counties to "secure the greatest permanent value of
those lands to the state."
The plaintiffs argued that for decades the term meant managing the
forests to provide maximum revenue to the counties in which they
operate. But starting in 2001, the state changed the meaning to
include other amenities such as water quality, recreation and
wildlife habitat enhancement, which resulted in reduced payments to
the counties.
Judgments for current and future damages until 2069 (second number)
by county: Benton, $509,858 and $6,161,270; Clackamas, $25,381,067
and $3,154,360; Clatsop, $176,478,590 and $109,565,036; Columbia,
$7,551,189 and $7,355,610; Coos, $32,268,012 and $6,554,882;
Douglas, $8,855,710 and $3,565,736; Josephine, $761,707 and
$693,168; Lane, $55,025,487 and $17,948,505; Lincoln, $6,075,056
and $14,591,775; Linn, $37,476,762 and $14,518,637; Marion,
$9,616,092 and $11,552, 647; Polk, $$4,766,551 and $3,631,354;
Tillamook, $246,985,207 and $144,113,203; Washington, $62,259,582
and $48,492,346.
Total current damages: $674,020,873. Total future damages:
$391,898,527. Total judgment: $1,065,919,400.
Opting out of the lawsuit were: Clatsop County, Clatsop Community
College, Clatsop County Rural Law Enforcement, Clatsop County Road
District #1, Clatsop County 4-H/Extension Service, Sunset Empire
Park and Recreation in Clatsop County, Benton County Soil & Water
Conservation District, Clackamas County Soil Conservation District,
Port of Portland in Washington County, Washington County Rural Fire
Protection District #2, Clatsop County Fair, Sunset Empire
Transportation in Clatsop County, and the Port of Portland in
Clatsop County. [GN]
OVASCIENCE INC: Court Grants Class Certification in Dahhan Action
-----------------------------------------------------------------
Jack Reise, Esq., -- JReise@rgrdlaw.com -- Stephen R. Astley, Esq.
-- SAstley@rgrdlaw.com -- and Elizabeth A. Shonson, Esq. --
eshonson@rgrdlaw.com -- of Robbins Geller Rudman & Dowd LLP, on
July 13, 2020, announced that class certification has been granted
allowing a class of shareholders to proceed in a lawsuit named
Dahhan v. OvaScience, Inc.
The litigation asserts claims for alleged violations of the federal
securities laws against OvaScience, Inc. ("OvaScience" or the
"Company"), Michelle Dipp, M.D., Ph.D., and Jeffrey E. Young. On
May 8, 2020 and May 18, 2020, the United States District Court for
the District of Massachusetts entered orders, pursuant to Rule 23
of the Federal Rules of Civil Procedure, certifying the case to
proceed as a class action on behalf of a Class defined as follows:
PERSONS OR ENTITIES WHO PURCHASED OR OTHERWISE ACQUIRED THE
PUBLICLY TRADED COMMON STOCK OF OVASCIENCE, INC. ("OVASCIENCE"),
BETWEEN DECEMBER 17, 2014 AND SEPTEMBER 28, 2015, INCLUSIVE ("CLASS
PERIOD"). EXCLUDED FROM THE CLASS ARE DEFENDANTS, THE OFFICERS AND
DIRECTORS OF THE COMPANY, AT ALL RELEVANT TIMES, MEMBERS OF THEIR
IMMEDIATE FAMILIES AND THEIR LEGAL REPRESENTATIVES, HEIRS,
SUCCESSORS, OR ASSIGNS, AND ANY ENTITY IN WHICH DEFENDANTS HAVE OR
HAD A CONTROLLING INTEREST.
Lead Plaintiff Freedman Family Investments, LLC has been appointed
as Class Representative.
IF YOU ARE A MEMBER OF THE CLASS DESCRIBED ABOVE, YOUR RIGHTS MAY
BE AFFECTED. On July 6, 2020, a Notice of Pendency of Class Action
(the "Notice") was mailed to persons who purchased OvaScience
common stock during the Class Period, as reflected on the books and
records of the Company and its transfer agent. The Notice contains
important information regarding the rights of Class Members,
including the right to seek exclusion from the Class and the legal
implications and deadline for doing so. If you believe you are a
member of the Class as defined above, and if you have not received
a copy of the Notice by mail, you are urged to request a copy free
of charge by mailing your request to:
OvaScience Securities Litigation
c/o Gilardi & Co. LLC
P.O. Box 43312
Providence, RI 02940-3312
You may also download a copy of the Notice at
www.ovasciencesecuritieslitigation.com.
IF YOU ARE A CLASS MEMBER AND DO NOT EXCLUDE YOURSELF FROM THE
CLASS, YOU WILL BE BOUND BY ALL ORDERS AND ANY JUDGMENT IN THE
ACTION. TO EXCLUDE YOURSELF FROM THE CLASS, YOU MUST SUBMIT A
WRITTEN REQUEST FOR EXCLUSION POSTMARKED ON OR BEFORE SEPTEMBER 4,
2020.
CLASS MEMBERS SHOULD NOT CONTACT THE COURT OR THE CLERK'S OFFICE
REGARDING EXPLANATION OF THIS NOTICE. [GN]
PERRIGO: Faces Investor Class Action Over Tax Charge
----------------------------------------------------
Law360 reports that two Florida public service pension funds are
qualified to lead an investor class action accusing drugmaker
Perrigo of harming investors by waiting to tell them about a nearly
$2 billion tax charge, the funds' attorneys told a federal court.
[GN]
PETER NYGARD: Lawyers File Motion to Dismiss Class Action
---------------------------------------------------------
Postmedia News reports that on March 13, as Canada went into
lockdown, Peter Nygard's retail fashion empire was still standing,
barely.
As it closed its distribution centres that day, with 1,450
employees operating 169 retail stores and a large wholesale
operation, it was hardly at the peak of its influence.
But it was still an astonishing and profitable success, built on
cheap and cheerful fast fashion for the modern cost-conscious woman
of style, which had made Nygard fabulously wealthy and tagged him
with the nickname of the Polyester King.
What a difference a few months can make. A court decision in March
took corporate control out of Nygard's hands, as his companies were
put into receivership, and warehouses in Toronto and Winnipeg put
up for sale.
Then came news that an intellectual property firm will be
auctioning off the brands that made him rich, including the labels
Nygard, Alia and TanJay, the last of which refers to Jacob
Fashions, which was the first company Nygard bought into after
leaving Eaton's as an ambitious young salesman in the 1960s.
Nygard, 78, has been in and out of courtrooms his entire career,
with major litigation over alleged defamatory libel, paternity,
trademark law, and other disputes. In 1980 he was charged with the
rape of an 18-year-old woman, but was not tried or convicted. He
settled with three women who filed sexual harassment complaints in
Manitoba. He brought a Charter challenge to a blood test over a
child support claim.
But nothing had destroyed the retail empire, with its flagship
store in Manhattan and its deals to supply department stores across
North America.
The world has now caught up to Nygard's empire, however, and since
that day in March, when control finally slipped away, the decline
of the polyester king has snowballed. Now, the avalanche has swept
away many of the luxury trappings of a life lived famously to
excess, leaving Nygard recently pleading in vain with a judge not
to sell a corporate building in Winnipeg because he has been living
in it as a tenant, and therefore cannot be evicted.
The judge dismissed that claim for lack of documentary evidence,
other than a picture of a bed. CBC reported in June that Nygard was
living at his cottage at Falcon Lake, Manitoba.
He was already the subject of an arrest warrant in the Bahamas,
where he lived for many years until 2018, the last decade of which
was consumed by an epic battle with the government of the Bahamas
and his neighbours over his illegal dredging of the sea floor and
other construction to expand his property, Nygard Cay, on the spit
of land on the western tip of New Providence.
That fight took years, but it was not until recently that the
property started to look less like the real estate extravagance of
a rich man and more like an alleged crime scene, where young women
were allegedly trafficked and abused sexually.
Styled as a Mayan palace, Nygard's house was the site of modelling
shoots for his various fashion lines, and elaborate parties with
celebrity guests, including Prince Andrew, whose dealings with
Ghislaine Maxwell and Jeffrey Epstein have caused turmoil for the
Royal Family, newly escalated by Maxwell's arrest by the FBI.
U.S. federal agents have also been investigating Nygard, and in
February raided offices in New York and California. In response,
Nygard stepped down as chairman and divested ownership.
Then came a class action law suit, filed in February in New York by
a group of 10 women, which has now grown to 57, alleging they were
raped and trafficked for sex by Nygard, some when they were as
young as 14.
The lawsuit describes a sex trafficking scheme run over decades by
Nygard, with his company's money, in which underaged girls and
women were drugged, sexually assaulted and coerced into sex acts in
exchange for money or promises of modelling opportunities or career
advancement within the Nygard empire, in locations that include the
Bahamas compound, sites in the United States, and in Nygard's
hometown Winnipeg.
The allegations in the lawsuit have not been tested in court. No
criminal charges have been filed.
Nygard's lawyers filed a motion asking a judge to dismiss the suit,
as many of the plaintiffs do not live in New York, some of the
allegations related to claims outside the United States, and most
of the women's claims are barred under the statute of limitations,
the motion claims.
The class action demands a jury trial on claims that Nygard and his
companies "conspired to and did recruit, lure, and entice young,
impressionable, and often impoverished children and women,with cash
payments and false promises of lucrative modeling opportunities or
other career opportunities to assault, rape,and sodomize them.
Nygard used his considerable influence in the fashion industry, his
wealth, his power through corruption of officials, and a network of
company employees under his direction, to kidnap, groom and entice
children and women."
It was reported that Nygard is now also the subject of a Winnipeg
Police Service sexual assault investigation.
One woman was quoted who described being interviewed by police over
her claim Nygard violently raped her when she was 17 in 1979, after
she accepted a ride home from him after a night of dancing. She has
also joined the New York lawsuit. Her claims are similarly untested
in court.
Nygard was born in Finland to a family that immigrated to Manitoba
when he was a child. After studying business, he started working at
Eaton's, learned retail, then bought a stake in a small company
that he built into his empire.
Last month Dillard's, the large American fashion retailer, reached
a settlement with several Nygard companies in receivership over
millions of dollars in debt and inventory. Some of the clothing had
already been ordered and shipped, the rest was refused on delivery
and all future orders cancelled, due to the growing scandal.
Part of that deal involves Dillard's buying the Allison Daley
trademark, which was sold at HBC stores for many years, and was the
subject of lengthy litigation over a consignment scheme. [GN]
PROASSURANCE CORP: Faruqi & Faruqi Reminds of August 17 Deadline
----------------------------------------------------------------
Faruqi & Faruqi, LLP, a leading national securities law firm,
reminds investors in ProAssurance Corporation ("ProAssurance" or
the "Company") (NYSE: PRA) of the August 17, 2020 deadline to seek
the role of lead plaintiff in a federal securities class action
that has been filed against the Company.
If you invested in ProAssurance stock or options between April 26,
2019 and May 7, 2020 and would like to discuss your legal rights,
click here: www.faruqilaw.com/PRA. There is no cost or obligation
to you.
You can also contact us by calling Richard Gonnello toll free at
877-247-4292 or at 212-983-9330 or by sending an e-mail to
rgonnello@faruqilaw.com.
CONTACT:
FARUQI & FARUQI, LLP
685 Third Avenue, 26th Floor
New York, NY 10017
Attn: Richard Gonnello, Esq.
rgonnello@faruqilaw.com
Telephone: (877) 247-4292 or (212) 983-9330
The lawsuit has been filed in the U.S. District Court for the
Northern District of Alabama on behalf of all those who purchased
ProAssurance common stock between April 26, 2019 and May 7, 2020
(the "Class Period"). The case, Sheet Metal Workers Local 19
Pension Fund v. ProAssurance Corporation et al., No. 2:20-cv-00856
was filed on June 16, 2020, and has been assigned to Magistrate
Judge Gray M. Borden.
The lawsuit focuses on whether the Company and its executives
violated federal securities laws by making false and/or misleading
statements and/or failing to disclose that: (1) ProAssurance lacked
adequate underwriting process and risk management controls
necessary to set appropriate loss reserves in its Specialty P&C
segment; (2) ProAssurance failed to properly assess a large
national healthcare account that experienced losses far exceeding
the assumptions made when the account was underwritten; and (3) as
a result, ProAssurance was subject to materially heightened risk of
financial loss and reserve charges.
Specifically, on January 22, 2020, ProAssurance announced that
because of a deteriorating loss experience related mainly to one
large healthcare account underwritten in 2016, the Company was
estimating a $37 million adverse development in its Specialty P&C
loss reserves for the fourth quarter of 2019. Additionally, the
Company stated that since mid-2019 it had been executing a
"comprehensive underwriting strategy in response to emerging trends
and changing conditions in healthcare professional liability."
On this news, the Company's stock price fell from $37.58 per share
on January 22, 2020 to $33.40 per share on January 23, 2020: a
$4.18 or 11.12% drop.
Later, on February 20, 2020, ProAssurance announced its 2019 fourth
quarter and full year results. The Company revealed that the
adverse development from this one large national healthcare account
was actually $51.5 million, much larger than the initial estimate
of $37 million only a month prior. The Company discussed that "[i]n
the span of twelve months, we restructured the majority of our
executive team [and] consolidated our Specialty P&C operations"
under new leadership.
Then, on May 8, 2020, ProAssurance announced that the large
healthcare client would likely not renew its policy and instead
would likely exercise an option for tail coverage that would result
in an additional $50 million in losses in the second quarter of
2020. This loss, when combined with the $51.5 adverse development,
meant that the Company would suffer over $100 million in losses
from a single account.
On this news, the Company's stock price fell from $20.33 per share
on May 7, 2020 to $15.95 per share on May 8, 2020: a $4.38 or
21.54% drop.
The court-appointed lead plaintiff is the investor with the largest
financial interest in the relief sought by the class who is
adequate and typical of class members who directs and oversees the
litigation on behalf of the putative class. Any member of the
putative class may move the Court to serve as lead plaintiff
through counsel of their choice, or may choose to do nothing and
remain an absent class member. Your ability to share in any
recovery is not affected by the decision to serve as a lead
plaintiff or not.
Faruqi & Faruqi, LLP also encourages anyone with information
regarding ProAssurance's conduct to contact the firm, including
whistleblowers, former employees, shareholders and others.
Attorney Advertising. The law firm responsible for this
advertisement is Faruqi & Faruqi, LLP (www.faruqilaw.com). Prior
results do not guarantee or predict a similar outcome with respect
to any future matter. We welcome the opportunity to discuss your
particular case. All communications will be treated in a
confidential manner.
PROLINE PLUMBING: Fails to Pay All Hours Worked, Dierking Claims
----------------------------------------------------------------
STEPHAN DIERKING v. PROLINE PLUMBING & ROOTER INC. and DOES 1 to
25, inclusive, Case No. 20STCV25114 (Cal. Super., Los Angeles Cty.,
July 2, 2020), is brought on behalf of the Plaintiff and other
similarly situated aggrieved employees arising from Proline's
failure to compensate for all hours worked, to pay minimum wages,
and to pay overtime wages under the California Labor Code.
Mr. Dierking initially started working for Proline on the end of
2018 and his employment ended July 11, 2019. He was employed as a
field technician/plumber and would do work on the commercial side
and residential side. He contends that he was not paid an hourly
wage for his work but was paid weekly on a commission basis. He
would work 7 days per week and 50-60 hours per week with some
workdays spanning approximately 15 hours.
Proline offers plumbing services.[BN]
The Plaintiff is represented by:
Harout Messrelian, Esq.
MESSRELIAN LAW INC.
500 N. Central Ave., Suite 840
Glendale, CA 91203
Telephone: (818) 484-6531
Facsimile: (818) 956-1983
E-mail: hm@messrelianlaw.com
QUALITY CARRIERS: Ninth Cir. Appeal Filed in Salter Labor Suit
--------------------------------------------------------------
Defendant Quality Carriers, Inc., filed an appeal from a court
ruling in the lawsuit entitled Clayton Salter v. Quality Carriers,
Inc., et al., Case No. 2:20-cv-00479-JFW-JPR, in the U.S. District
Court for the Central District of California, Los Angeles.
As previously reported in the Class Action Reporter, the lawsuit
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 Jan. 16, 2020.
The Central District of California Court Clerk assigned Case No.
2:2020cv00479 to the proceeding.
The Plaintiff seeks to recover wages and penalties from unpaid
wages earned and due, including unpaid minimum wages, unpaid and
illegally calculated overtime compensation, illegal meal and rest
period policies, failure to pay all wages due to discharged and
quitting employees, failure to indemnify employees for necessary
expenditures and/or losses incurred in discharging their duties,
failure to provide accurate itemized wage statements, failure to
maintain required records, and interest, attorneys' fees, costs,
and expenses in violation to the California Labor Code.
The Plaintiff was employed by the Defendants under employment
agreements that were partly written, partly oral, and partly
implied.
The appellate case is captioned as Clayton Salter v. Quality
Carriers, Inc., et al., Case No. 20-55709, in the United States
Court of Appeals for the Ninth Circuit.
The briefing schedule in the Appellate Case is set as follows:
-- Appellants Quality Carriers, Inc. and Quality Distribution,
Inc.'s opening brief is due on July 23, 2020; and
-- Appellee Clayton Salter answering brief is due on July 23,
2020.[BN]
Plaintiff-Appellee CLAYTON SALTER, individually, and on behalf of
all others similarly situated, is represented by:
Daniel Joseph Bass, Esq.
MATERN LAW GROUP, PC
1230 Rosecrans Avenue, Suite 200
Manhattan Beach, CA 90266
Telephone: (310) 531-1900
- and -
Taras Kick, Esq.
THE KICK LAW FIRM
815 Moraga Drive
Los Angeles, CA 90049
Telephone: (310) 395-2988
E-mail: Taras@kicklawfirm.com
Defendants-Appellants QUALITY CARRIERS, INC., an Illinois
Corporation; and QUALITY DISTRIBUTION, INC., a Florida Corporation,
are represented by:
Christopher James Eckhart, Esq.
SCOPELITIS, GARVIN, LIGHT, HANSON & FEARY, P.C.
10 West Market Street
Indianapolis, IN 46204
Telephone: (317) 637-1777
E-mail: CECKHART@SCOPELITIS.COM
- and -
Christopher Chad McNatt, Jr., Esq.
SCOPELITIS, GARVIN, LIGHT, HANSON & FEARY, LLP
2 North Lake Avenue
Pasadena, CA 91101
Telephone: (626) 795-4700
E-mail: CMCNATT@SCOPELITIS.COM
QUDIAN INC: Averts Securities Fraud Class Action
------------------------------------------------
Julia Weng, writing for Bloomberg Law, reports that Qudian Inc.
doesn't have to face a security fraud class action tied to a data
breach after a federal court rejected a motion to reconsider
previously dismissed claims.
Plaintiffs attempted to re-litigate a previously rejected argument
against the Chinese online lender with their motion, the U.S.
District Court for the Southern District of New York said in
rejecting it July 10.
The ruling shows how companies hit with securities fraud class
actions following breaches can beat claims through early motions
over standing, jurisdiction, or showing that allegations are
unfounded. [GN]
RAYTHEON COMPANY: N.R. Appeals Ruling in ERISA Suit to 1st Cir.
---------------------------------------------------------------
Plaintiff N.R., by and through his parents and guardians, S.R. and
T.R., filed an appeal from a court ruling in the lawsuit styled
N.R. v. Raytheon Company, et al., Case No. 1:20-cv-10153-RGS, in
the U.S. District Court for the District of Massachusetts, Boston.
As previously reported in the Class Action Reporter, the lawsuit
seeks to enforce the Federal Mental Health Parity Act, through
Employment Retirement Security of Act of 1974.
Raytheon Health Benefit Plan is an employee welfare benefit plan
that provides health benefits for Raytheon employees and their
dependents.
N.R. is a five-year old child, who was diagnosed with autism
spectrum disorder in 2017 and was recommended that N.R. receive
speech therapy services. This, however, was denied under their
benefit plan.
The appellate case is captioned as N.R. v. Raytheon Company, et
al., Case No. 20-1639, in the United States Court of Appeals for
the First Circuit.[BN]
Plaintiff-Appellant N.R., by and through his parents and guardians,
S.R. and T.R., individually and on behalf of all others similarly
situated, and derivatively on behalf of the Raytheon Health
Benefits Plan, is represented by:
Stephen S. Churchill, Esq.
FAIR WORK PC
192 South St., Ste. 450
Boston, MA 02111
Telephone: (617) 607-3260
Facsimile: (617) 448-2261
E-mail: steve@fairworklaw.com
- and -
Eleanor Hamburger, Esq.
Richard E. Spoonemore, Esq.
SIRIANNI YOUTZ SPOONEMORE HAMBURGER
701 Fifth Avenue, Suite 2560
Seattle, WA 98104
Telephone: (206) 223-0303
Facsimile: (206) 223-0246
E-mail: rspoonemore@sylaw.com
ehamburger@sylaw.com
Defendants-Appellee RAYTHEON COMPANY, RAYTHEON HEALTH BENEFITS
PLAN, and WILLIAM M. BULL are represented by:
Catherine DiVita, Esq.
James F. Kavanaugh, Jr., Esq.
Johanna L. Matloff, Esq.
CONN KAVANAUGH ROSENTHAL PEISCH & FORD LLP
1 Federal St., 15th Flr.
Boston, MA 02110
Telephone: (315) 529-8359
E-mail: cdivita@connkavanaugh.com
jkavanaugh@connkavanaugh.com
jmatloff@connkavanaugh.com
RYDER SYSTEM: Schall Law Announces Securities Class Action Filing
-----------------------------------------------------------------
The Schall Law Firm, a national shareholder rights litigation firm,
announces the filing of a class action lawsuit against Ryder
System, Inc. for violations of Sec. 10(b) and 20(a) of the
Securities Exchange Act of 1934 and Rule 10b-5 promulgated
thereunder by the U.S. Securities and Exchange Commission.
Investors who purchased the Company's securities between July 23,
2015 and February 13, 2020, inclusive (the "Class Period"), are
encouraged to contact the firm before July 20, 2020.
We also encourage you to contact Brian Schall of the Schall Law
Firm, 1880 Century Park East, Suite 404, Los Angeles, CA 90067, at
310-301-3335, to discuss your rights free of charge. You can also
reach us through the firm's website at www.schallfirm.com, or by
email at brian@schallfirm.com.
The class, in this case, has not yet been certified, and until
certification occurs, you are not represented by an attorney. If
you choose to take no action, you can remain an absent class
member.
According to the Complaint, the Company made false and misleading
statements to the market. Ryder engaged in a pattern of overstating
the residual value of its vehicles, which in turn inflated its
financial results. The Company lacked any basis for the belief that
its vehicles would sell for the values it assigned to them. The
Company overstated these vehicles to such a degree that it was
forced to take a $357 million depreciation charge related to the
reduction of residual values in 2019. Based on these facts, the
Company's public statements were false and materially misleading
throughout the class period. When the market learned the truth
about Ryder, investors suffered damages.
Join the case to recover your losses.
The Schall Law Firm represents investors around the world and
specializes in securities class action lawsuits and shareholder
rights litigation.
This press release may be considered Attorney Advertising in some
jurisdictions under the applicable law and rules of ethics.
Brian Schall, Esq.
The Schall Law Firm
Tel No.: 310-301-3335
E-mail: info@schallfirm.com [GN]
SCHLEGEL VILLAGES: Faces $20MM Class Action Over COVID-19 Deaths
----------------------------------------------------------------
The Weekly Source reports that Anglicare is not the only operator
being pursued by lawyers.
One of its largest operators in Canada, Schlegel Villages, is
facing paying out $20 million in damages on behalf of residents who
suffered from COVID-19, families who lost relatives from the virus
and those whose standard of care was allegedly reduced during the
outbreak at its 180-bed Village of Erin Meadows in Mississauga.
65 residents and 26 staff have so far been infected with COVID-19
with 21 deaths recorded.
The lawsuit alleges the home and Schlegel failed to ensure
residents and staff were kept safe, comply with provincial
directives to prevent the spread of COVID-19 and equip their staff
with Personal Protective Equipment (PPE) in a timely manner.
The claims contend that even though a COVID-19 outbreak was
declared on April 2, residents were still allowed to sit together
at tables for four in their dining rooms for all three meals (as
late as 9 April) and community officials continued to allow
residents who tested positive for COVID-19 to wander out of their
room and access the rooms of other residents (as late as 17
April).
Staff shortages also resulted in residents receiving substandard
care, resulting in bladder infections, dehydration and other
conditions that led to hospitalisation and even death, the lawsuit
alleges.
Schlegel says they will address the allegations through the proper
legal processes.
They have 19 villages in Ontario with co-located retirement and
aged care homes. [GN]
SD-CHARLOTTE LLC: $500K Sale of All RTHT's MOD Assets Approved
--------------------------------------------------------------
Judge Laura T. Beyer of the U.S. Bankruptcy Court for the Western
District of North Carolina authorized SD-Charlotte, LLC and
SD-Missouri, LLC to sell RTHT Investments, LLC's sale of
substantially all assets related to its MOD Pizza restaurants to
MOD Super Fast Pizza, LLC for a cash payment in the amount of
$500,000, payment of Cure Costs of up to $808,129, and payment of
up to $452,282 required to release certain Specified Liens on the
MOD Assets.
The Asset Purchase Agreement and all other ancillary documents, and
all of the terms and conditions thereof, and the Debtors' entry
into such documents, are approved in all respects.
The sale is free and clear of all obligations, interests, Liens,
and Liabilities, with all such obligations, interests, Liens, and
Liabilities to attach solely to the proceeds of the Sale.
The Debtors will escrow proceeds from the Sale that are sufficient
to pay Chapter 11 quarterly fees that become due as a result of the
Sale.
Upon Closing, the Debtors are authorized and directed to assume and
assign to the Purchaser each of the Assigned Contracts set forth on
Exhibit B, subject to the provisions of the Asset Purchase
Agreement, free and clear of all obligations, interests, Liens, and
Liabilities.
Two business days prior to the Closing, the Purchaser will provide
to the Debtors a list of all Assigned Contracts, if any, that will
be re-designated as Rejected Contracts. Prior to the Closing, the
Debtors will not reject any Assigned Contract and will continue to
perform all obligations under each Assigned Contract. 23. Prior to
the Sale Hearing, the Purchaser informed the Debtors that the
Purchaser would not ask designation of a Franchisee Adoption MOD
Pizza Agreement with Performance Food Group, Inc. as an Assigned
Contract. As a result of such designation, the Debtors will reject
the Adoption Agreement, and PFG will have an allowed priority claim
in the amount of $210,248 against the estate.
Under Bankruptcy Rules 7062, 9014, 6004(h) and 6006(d), the Order
will be effective immediately upon entry and the Selling Debtor and
the Purchaser are authorized to close the Sale immediately upon
entry of the Order.
All time periods set forth in the Order will be calculated in
accordance with Bankruptcy Rule 9006(a).
A copy of the Agreement is available at
https://tinyurl.com/y9j5gota from PacerMonitor.com free of charge.
SD-Charlotte, LLC sought Chapter 11 protection (Bankr. W.D.N.C.
Case No. 3:20-bk-30149) on Feb. 07, 2020. The case is assigned to
Judge Laura T Beyer.
SHELBY COUNTY, TN: Hearings on Jail Class Actions Continue
----------------------------------------------------------
Sarah Macaraeg, writing for Memphis Commercial Appeal, reports that
positive COVID-19 cases spiked in the Shelby County Division of
Corrections over the July 11 weekend, according to Health
Department data.
Amid a mass increase in testing, 21 new inmate cases were reported
on July 11, data shows.
A total of 51 inmates and 53 employees at the facility -- which has
an estimated average daily population of 2,000, per budget
documents -- have tested positive for the coronavirus as of a
Sunday update from the Shelby County Health Department.
The figures reported over the July 11 weekend also include two new
employee cases.
The Corrections division employs 589 full-time employees, according
to its most recently adopted budget. Around half, 296 employees,
have been tested as of July 12, the data shows.
While inmate tests rose by 200, a single-digit increase of three
tests among Corrections division employees occurred over the
weekend, the Health Department reported.
Corrections employees operate an 11-building compound at 1045
Mullins Station Road, where inmates with lesser sentences of all
genders are incarcerated after being convicted. The Corrections
division also operates the West Tennessee Re-entry Center.
Seven more cases at Downtown jail; class-action lawsuit continues
Coronavirus cases among pre-trial detainees also rose in recent
days -- amid hearings in a federal, class-action lawsuit seeking
the release of medically vulnerable detainees from the county's
main jail Downtown at 201 Poplar.
A hearing in the lawsuit that began on July 10 was set to continue
on July 13, according to Josh Spickler of the criminal justice
reform advocacy organization Just City, which filed the suit in May
alongside the American Civil Liberties Union and other lawyers.
"Unfortunately it is even more critical now," Spickler said,
pointing to the recent increase in community transmission of the
coronavirus in Shelby County at large. "That puts the people in
that jail at a greater risk than ever before during this
pandemic."
The legal action aims to compel officials to release detainees over
55 and/or with underlying medical conditions placing them in a
high-risk category for developing severe coronavirus symptoms.
Previously, in June, court-appointed inspector Michael Brady said
the coronavirus response plan at the jail was "inadequate to
protect the vulnerable inmates".
The July 10 testimony featured detainees and a second inspector who
said it is unlikely the jail could keep people awaiting trial safe
from exposure to the coronavirus, Spickler said.
On July 13, Chief Jailer Kirk Fields and Shelby County District
Attorney Amy Weirich were expected to testify, he said.
The Shelby County Sheriff's Office reported an increase of seven
new detainee cases from the week prior, on July 10. Among agency
employees, SCSO reported an increase of 11 cases in the same
period.
The jail has a population of 1,857, Capt. Anthony Buckner said in a
weekly update on July 10. A total of 176 detainees have tested
positive for COVID-19, he said.
As of July 10, 121 detainees were quarantined, according to the
Health Department.
Buckner said there have been no cases at two other jails SCSO
operates. "We have no cases at the Jail East facility or the
Juvenile Court Detention Center," Buckner said of separate
facilities, where 169 women and 33 children are currently held.
The agency cannot comment on pending litigation, Buckner said of
the class-action lawsuit currently winding through court.
Spickler likened the jail, with its enclosed population in close
quarters, to a cruise ship parked in the center of the community.
"People who are arrested and released, people who work there, cycle
in and out of it constantly," he said.
That puts everyone at risk, Spickler said. "But there is a subset
of people this judge has declared as a class for whom it is
impossible to protect and provide the right kind of care." [GN]
SHUTTERFLY INC: Can Compel Arbitration in Miracle-Pond BIPA Suit
----------------------------------------------------------------
In the case, VERNITA MIRACLE-POND & SAMANTHA PARAF, individually
and on behalf of all others similarly situated, Plaintiffs, v.
SHUTTERFLY, INC., Defendant, Case No. 19 cv 04722 (N.D. Ill.),
Judge Mary M. Rowland of the U.S. District Court for the Northern
District of Illinois, Eastern Division, (i) granted Shutterfly's
motion to compel arbitration for Ms. Miracle-Pond; (ii) stayed
Shutterfly's motion to dismiss pending the outcome of arbitration;
and (iii) denied the Plaintiffs' motion for curative measures.
Plaintiffs Miracle-Pond and Paraf have sued Defendant Shutterfly
under the Illinois Biometric Information Privacy Act ("BIPA"). Ms.
Miracle-Pond is a Shutterfly user with a Shutterfly account. She
registered for her Shutterfly account using the Shutterfly Android
mobile app in August 2014. During the registration process, the
app displayed a page on Ms. Miracle-Pond's Android device. In
order to proceed past that page, Ms. Miracle-Pond was required to
click a button that said "Accept." The page directed users to the
Terms of Use.
Shutterfly has had various Terms of Use between 2014 and the filing
of the suit. In the version of the Terms of Use from August 2014,
the time Ms. Miracle-Pond opened an account with Shutterfly, the
first section reiterated that the user was accepting the Terms.
The 2014 Terms of Use included a class action waiver.
In May 2015, Shutterfly added an arbitration provision to its Terms
of Use. Every version of Shutterfly's Terms of Use since May 2015,
including the most recent version from September 2019, has included
an arbitration provision.
According to Shutterfly's records, Ms. Miracle-Pond uploaded nearly
300 photographs to her account between August 2014 and December
2018, ordered Shutterfly products on Dec. 6, 2015, Dec. 11, 2017,
Oct. 24, 2018, and Dec. 8, 2018, and accessed her account as
recently as April 22, 2019.
Ms. Miracle Pond and Ms. Palaf filed the lawsuit, on behalf of
themselves and similarly situated Shutterfly users, in the Circuit
Court of Cook County in June 2019. They allege that Shutterfly
violated BIPA by using facial-recognition technology to extract
biometric identifiers for "tagging" individuals and by selling,
leasing, trading, or otherwise profiting from Plaintiffs' and Class
Members' biometric identifiers and/or biometric information. On
July 12, 2019, Shutterfly removed to the Court.
In September 2019, about three months after Ms. Miracle-Pond and
Ms. Palaf filed the lawsuit, Shutterfly sent an email to all of its
users nationwide. The email notified Shutterfly users that the
Terms of Use had been updated. Shutterfly's records indicate that
Ms. Miracle-Pond opened that email on Sept. 8, 2019. As of Oct. 2,
2019, Ms. Miracle-Pond's account remained open. The Plaintiffs
believe the September 2019 email was an improper ex parte
communication with the Plaintiff and the putative class members
because it failed to advise them of the pending litigation while
seeking to deprive them of their rights as plaintiffs or class
members.
Before the Court are two motions: Shutterfly's motion to compel
arbitration, and the Plaintiffs' motion for curative measures
regarding the September 2019 email.
Judge Rowland finds that in 2014, Ms. Miracle-Pond entered into a
service contract that explicitly gave Shutterfly's the right to
unilaterally modify the agreement at any time and without notice,
other than posting the modified terms on their website. It is
undisputed that Shutterfly posted the modified Term of Use on its
website in May 2015. Ms. Miracle-Pond indicated her acceptance to
the modified Terms of Use by continuing to use Shutterfly products.
Her arguments regarding lack of notice are thus unavailing. Ms.
Miracle-Pond is accordingly bound by the 2015 modifications to the
Terms of Use.
The Plaintiffs' substantive claim arises under an Illinois statute:
BIPA. It does not arise under the consumer protection laws of
California. Accordingly, the McGill v. Citibank rule does not
apply to the arbitration agreement in the case. Ms. Miracle-Pond
entered into a valid arbitration agreement, and the Judge grants
Shutterfly's motion to compel arbitration.
Finally, the Judge finds no indication that Shutterfly engaged in
any improper conduct: There is no evidence of deceptive conduct, no
evidence of coercion, no evidence of targeting putative Class
Members, no evidence of imposing arbitration without agreement or
without additional consideration. The 2019 email does not affect
class members' rights. The Judge has not and will not rely on the
2019 email to find that any putative class members agreed to
arbitrate. Indeed, Shutterfly conceded that the Court need not
rely on the 2019 email for that purpose. No remedial measures are
necessary.
For the reasons stated, Judge Rowland granted Shutterfly's motion
to compel arbitration for Ms. Miracle-Pond and stay proceedings.
The Plaintiffs' motion for curative measures is denied.
Shutterfly's motion to dismiss is stayed pending the outcome of
arbitration.
A full-text copy of the District Court's May 15, 2020 Memorandum
Opinion & Order is available at https://is.gd/YYc6VG from
Leagle.com.
SIMPSON STRONG-TIE: Court Dismisses First Amended Cooper Suit
-------------------------------------------------------------
In the case, CARY W. COOPER, et al., Plaintiffs, v. SIMPSON
STRONG-TIE COMPANY, INC., et al., Defendants, Case No.
19-cv-07901-TSH (N.D. Cal.), Magistrate Judge Thomas S. Hixson of
the U.S. District Court for the Northern District of California
granted (i) the Defendants' Motion to Dismiss pursuant to Federal
Rule of Civil Procedure 12(b)(6), and (ii) the Defendants' Request
for Judicial Notice in Support of their Motion.
Defendants Simpson Strong-Tie Co., Inc. and Simpson Manufacturing
Co., Inc. are a California corporation and Delaware corporation
with a principal place of business in Pleasanton, California.
Simpson manufactures, advertises, sells, and distributes steel,
structural building products throughout the United States,
including various products sold for installation in the
foundations, framing, and doors of homes and other buildings to
help secure the structures against high-wind events and earthquake.
The Product is made of pre-formed strips of steel that have
flanges used for connecting the Product to various structures. It
works in combination with other steel connectors to form load paths
that create resistance to uplift1 and lateral forces which can
damage structures.
Plaintiffs Cary W. Cooper and Terri G. Cooper are Georgia residents
who own a home in Port St. Joe, Florida. They purchased their home
on Aug. 17, 2019. The property was built in 2004 and the Product
was installed on the home. They allege that in 2019, a hurricane
hit the area of Port St. Joe and caused severe damage to the
Coopers' home. The Plaintiffs allege that the home suffered
extensive damage because the Product was weakened due to premature
corrosion and failed to secure the home. They allege it would not
have suffered from extensive damage if the Product had functioned
as Simpson marketed it would.
Plaintiff Fernandina Beach is a Florida limited liability company
("LLC") which owns a home in Fernandina Beach, Florida. It
purchased its property in September 2011. The home was built in
1997 and the Product was installed on it. Because of premature
corrosion, the Plaintiffs allege, the Product is no longer capable
of protecting Fernandina's home from high wind and seismic events.
Plaintiffs Simon Nguyen and Thoai Doan ("California Plaintiffs")
are California residents who own a home in San Jacinto, California.
They purchased their home, which was built in January 2007, in
August 2009. The Product was installed on their home also. The
Plaintiffs allege that "signs of corrosion on the Product continue
to manifest" on this home as well, compromising the home's
foundation and structural support.
Simpson provides installation instructions, design specifications,
and other representations as to the usage and qualities of the
Product in materials, including manuals and guides, which it
produces and disseminates to consumers. The manuals and guides
include corrosion warnings. Nevertheless, the Plaintiffs allege
that Simpson never adequately disclosed that the Product was
subject to corrosion, rusting, failure, deterioration, and
disintegration. They allege that few Class members ever see, and
that they never saw, the corrosion warnings and that the warnings
do not adequately disclose Simpson is selling the Product into
areas where it will foreseeably corrode long before its usual life,
under reasonably foreseeable conditions, even if the installer
reasonably follows the installation instructions.
The Plaintiffs believe that installation of the Product onto their
structures complied with Simpson's installation instructions and
that deterioration was not due to environmental conditions but,
rather, the Defendants' defective design of the Product. They
allege that Simpson knew of the Product defect since before they
and Class members purchased their properties, and that it failed to
disclose it.
The Plaintiffs filed their original class action complaint on Dec.
2, 2019. Simpson filed a motion to dismiss on Feb. 5, 2020.
Rather than oppose the motion, the Plaintiffs filed their FAC on
Feb. 5, 2020. In their FAC, they assert nine causes of action
against Simpson: (1) unfair competition, or unfair or deceptive
acts or practices, in violation of the California Consumers Legal
Remedies Act ("CLRA"); (2) unlawful business practices in violation
of the California unfair competition law ("UCL"); (3) unfair
business practices in violation of the UCL; (4) a violation of
Florida's Deceptive and Unfair Trade Practices Act ("FDUTPA"); (5)
breach of express warranty; (6) breach of implied warranty of
fitness; (7) breach of implied warranty of merchantability; (8)
negligence; and (9) fraud through non-disclosure or concealment.
Simpson filed its Motion to Dismiss the FAC ("MTD") on March 17,
2020, asserting dismissal is warranted pursuant to Federal Rule of
Civil Procedure 12(b)(6).
Simpson requests judicial of the following items: Simpson's High
Wind-Resistant Construction Application Guide; pages from a 2001
archive of Simpson Strong-Tie Co., Inc.'s website, retrieved from
the Internet Archive; pages from the official website for City of
Fernandina Beach, Florida; a map showing the City of Fernandina
Beach, located on the North East Atlantic coast of Florida; pages
from the official website for Port St. Joe, Florida; a map showing
the Port St. Joe, Florida located on the North West Gulf of Mexico
coast of Florida; a 2019 North Atlantic hurricane tracking chart,
prepared by the U.S. Department of Commerce, National Weather
Service.
Magistrate Judge Hixson grants Simpson's requests for judicial
notice. Judicial notice may be taken at any stage of a proceeding.
Simpson's requests are unopposed, and the Plaintiffs either rely
on the documents requested (the Application Guide and the website
pages), meaning they're not subject to dispute, or the items are
otherwise proper subjects for judicial notice.
Turning to Simpson's Motion to Dismiss, the Magistrate holds that
since the FAC does not plausibly allege that the Product was
subject to premature corrosion or defective in any way, or that
Simpson represented that its products would never corrode, fail, or
need to be replaced, the FAC does not plausibly allege that Simpson
concealed a defect in the Product or otherwise misrepresented the
quality or durability of its products. Each of the Plaintiffs'
claims fail because of that. The Judge turns now to the individual
claims. Because the Plaintiffs' second and third causes of action,
their California unfair competition law claims, are based on
violations asserted in their other causes of action, he will
discuss those claims last.
The Jude finds that the Plaintiffs have not plausibly alleged a
claim under the CLRA. The Plaintiffs argue that Simpson's
marketing and sales decisions are made from its home office in
California. But they do not allege that fact in the FAC, even
though Simpson raised this argument in its motion to dismiss the OC
and they had opportunity to do so. Simpson is correct that the
Plaintiffs' have not alleged that the Florida Plaintiffs have
sufficient contacts with California to be able to avail themselves
of the CLRA or UCL.
Next, the Judge finds that the FAC does not plausibly allege that
Simpson's products suffered from any defects, or that Simpson
omitted any material information about its products. It does not
plausibly allege that Simpson misled consumers. And because the
Plaintiffs have not plausibly alleged that Simpson's products
suffered from defects, they've also not plausibly alleged that they
were injured due to any defect in Simpson's products. They've
failed to state a claim under the FDUTPA.
The California Plaintiffs cannot assert warranty claims under the
California Song-Beverly Act because the Products they purchased as
part of their home were not "new," the Judge finds. "Consumer
goods" under the Act are defined as any new product that is used,
bought, or leased for use primarily for personal, family, or
household purposes. The only section of the act that applies to
used goods is Section 1795.5, which creates obligations on behalf
of the distributor or retail seller making express warranties with
respect to used consumer goods (and not the original
manufacturer).
As fo the Plaintiffs' negligence claim, the Judge finds that with
regard to the Fernandina and California Plaintiffs' homes, Simpson
is correct that the Plaintiffs have not even alleged damage to
anything other than the Product. They allege only speculative
damage to their homes. The breach of a duty causing only
speculative harm or the threat of future harm does not normally
suffice to create a cause of action.
The Plaintiffs' ninth cause of action is one for fraud or
concealment. They allege that Simpson concealed and suppressed
material facts concerning the Product, namely the inability of the
Product, even when selected and installed pursuant to Simpson's
guidelines and instructions, to withstand environmental factors
that cause premature corrosion. Once again, the Plaintiffs have
not plausibly alleged that any of Simpson's products were defective
or that Simpson concealed any information from consumers. Thus,
they have not plausibly alleged fraud or unlawful concealment.
For the Plaintiffs' second and third causes of action, they allege
that the Defendants engaged in unlawful (claim two) and unfair
(claim three) business practices in violation of the California
unfair competition law. These causes of action depend on the other
claims, which for reasons already explained, all fail. Thus, like
the Plaintiffs' other claims, these claims fail.
Finally, without an allegation of when a plaintiff discovered facts
forming the basis of an alleged fraud, a court cannot know when the
tolling stopped and thus, when the plaintiff pursued a cause of
action diligently. Because the Plaintiffs did not allege when they
discovered the alleged fraud, they cannot avail themselves of
equitable tolling.
For the reasons he stated, Magistrate Judge Hixson dismissed the
Plaintiffs' First Amended Complaint. The Plaintiffs' first (CLRA),
second and third (UCL), fourth (FDUTPA), and ninth (fraud) claims
of action are dismissed with leave to amend.
The Plaintiffs' sixth (breach of warranty of fitness), seventh
(breach of warranty of merchantability), and eighth (negligence)
claims are dismissed with prejudice. Additionally, Fernandina's
CLRA claim and the California Plaintiffs' SBA claims are dismissed
with prejudice. These claims cannot be cured by amendment.
The Plaintiffs may filed an amended complaint.
A full-text copy of the District Court's May 19, 2020 Order is
available at https://is.gd/gxhPd1 from Leagle.com.
SLIDE FIRE: Motion Threatens to Wipe Out Victim Compensation Fund
-----------------------------------------------------------------
Noah Manskar and Michael Kaplan, writing for New York Post, report
that the maker of the now-banned gun accessory that worsened the
Las Vegas massacre has filed a little-noticed court motion that
threatens to wipe out a $1.1 million fund set aside for the
victims' families, The Post has learned.
Slide Fire Solutions -- the defunct manufacturer of the
controversial "bump stock" device that converted Stephen Paddock's
guns into automatic weapons, helping him kill 58 people in 11
minutes -- has filed a creditor's claim against the dead gunman's
estate, court records show.
According to the claim, filed June 15 in Nevada state court, Slide
Fire wants Paddock's estate to share the cost of any damages the
company may be forced to pay from a class-action lawsuit brought
against it in October 2017 that alleges its devices were partly
responsible for the massacre.
The problem: Paddock's surviving family members have allocated his
$1.4 million estate to the families of his victims, with
administrators hoping to distribute the money to them in October,
around the third anniversary of the tragedy.
Paddock's estate has not yet decided how to handle the claim, but
the outlook isn't good for the victims' families, according to
Alice Denton, a lawyer who is managing the unwinding of the
estate.
Denying the claim could lead to an expensive legal battle with
Slide Fire that would eat up the roughly $1.1 million the estate
currently has on hand, Denton said. Accepting it would likely force
the estate to fork over every penny if Slide Fire loses the
lawsuit, she added.
"It defeats our entire purpose," Denton told The Post. "Everything
that we have done in the last few years has been to preserve and
protect this money for them. Now with this creditor's claim all our
efforts are for naught."
For his part, Eric Paddock, the gunman's brother who has expressed
sympathy for the plight of the victims' families, said they "might
get a pack of gum once this is done" thanks to Slide Fire's legal
ploy. But he said the matter is out of his hands.
"The Paddock family is done with this," he told The Post. "We've
done what we can do."
Two survivors of the October 2017 mass murder, the largest in
modern US history, brought a federal class-action suit against
Slide Fire that accuses the company of negligence, saying the
extent of the carnage would not have been possible without the bump
stock.
In its court filing last month, however, Slide Fire countered that
Paddock's estate should also have to pay up because he was the one
who pulled the trigger. "But for the acts of Stephen Paddock, the
class-action plaintiffs could not have suffered the alleged damages
for which they seek monetary compensation," Slide Fire lawyer F.
Thomas Edwards, wrote in the filing.
If Slide Fire loses the class-action suit, the company added, it
wants a jury to "allocate the proportionate share of
responsibility" between the company and Paddock's estate.
A lawyer for the Vegas survivors called the move a page out of
Slide Fire's "disturbing" playbook to evade accountability for its
role in the massacre.
"Slide Fire has not taken an ounce of responsibility for anything
that it has ever done, nor has it made any gesture, however small,
to try to do right by the victims of this shooting," said Jonathan
Lowy, chief counsel at the Brady Campaign to Prevent Gun Violence.
"Instead, they have fought tooth and nail against the victims in
court, and this filing appears to be the latest chapter in that
strategy."
Even waiting to see how the case plays out could indefinitely delay
the estate's plans to distribute the funds in October, according to
Denton. She said she reached out to Slide Fire's lawyers last month
"almost begging" them to withdraw the claim.
"Then we could proceed to distribute this fall and close the
estate, and end a very tragic segment in the history of Las Vegas,"
she told The Post.
Edwards, the Slide Fire lawyer, did not return multiple calls from
The Post.
Slide Fire founder Jeremiah Cottle invented the bump stock, which
enables regular rifles to fire like fully automatic weapons. The
company started selling the device in 2010, raking in more than $10
million in sales in its first year, according to court records.
But President Trump announced plans to ban bump stocks in February
2018 amid outrage over the massacre. By April, Slide Fire revealed
it would shut down its Web site and stop taking orders the
following month.
Paddock killed himself in the Mandalay Bay hotel suite from which
he had rained bullets down on a crowd of country music fans. He
didn't have a will, so control of his estate went to his mother,
who in March 2018 transferred the inheritance to the estates of the
58 dead. [GN]
STATE FARM: Breach of Contract Class Action Can Proceed
-------------------------------------------------------
Jim Sams, writing for Claims Journal, reports that a federal
appellate court has cleared the way for a class-action lawsuit to
proceed against State Farm Fire and Casualty Insurance Co. that may
force the insurer to correct underpayments paid to some 65,000
policyholders.
A 6th Circuit Court of Appeals panel affirmed a district court
ruling that certified a class of plaintiffs who may proceed with
breach of contract claims against State Farm. A key issue in the
case has already been decided in 2018, when the 6th Circuit
affirmed a trial court ruling that insurers cannot include labor
costs when calculating depreciation to determine a property's
actual cash value (ACV) under Kentucky law.
"The improper handling of ACV obligations has been a problem for
insureds across the country and has been an obstacle for people who
have suffered catastrophic losses, and this is a positive step in
the right direction," said Amy Bach, executive director of United
Policyholders.
Susan Hicks, one of two lead plaintiffs in the case, is a widow
who's husband died when the couple's home in Owingsville, Kentucky
burned down in 2014. State Farm deducted more than $60,000 for
depreciation when it determined the actual cash value of the home.
The Xactimate calculator that it used included depreciation for
both materials and labor.
State Farm deducted more than $40,000 for depreciation of lead
plaintiff Don Williams' house in Monticello, Kentucky after it was
damaged by fire. Williams chose not to repair the home and hasn't
recovered the depreciated labor costs that were withheld from
payment, the suit alleges.
The appellate court decision continues a long losing battle for
State Farm. The U.S. District Court for Eastern Kentucky ruled in
2015 that under Kentucky law, insurers cannot include depreciation
of labor costs when calculating actual cash value. The 6th Circuit
affirmed that ruling in 2018.
State Farm changed its method of depreciation about three months
after the district court ruled it was improper to deduct for labor
costs. The plaintiff's attorneys say that the insurer needed only
to "unclick" one of the boxes used by the Xactimate software to
come up with the correct actual cash value.
The plaintiffs filed suit in 2017 seeking to certify as a class of
plaintiffs 65,575 policyholders who received payouts where labor
costs were improperly calculated from Feb. 28, 2004 to July 25,
2015.
Wystan M. Ackerman, with the Robinson & Cole law firm in Hartford,
Connecticut, filed an amicus brief supporting State Farm's position
on behalf of the American Property and Casualty Insurance
Association. He said state laws are not consistent on the issue of
whether labor cost depreciation can be used when calculating actual
cash value.
While the 6th Circuit has ruled that insurers cannot include labor
costs when deducting for depreciation in some instances, such
deductions may still be proper in states where statutes allow
insurers to present broad evidence to support their valuations.
Ackerman said the 8th Circuit has ruled that insurers can deduct
for depreciation of labor costs under Missouri law. A federal
district court reached a similar conclusion in Ohio.
In any case, Ackerman said that most Kentucky property insurers
have stopped including depreciation of labor costs in their actual
cash value calculations. Some jurisdictions, such as California,
strictly forbid the practice, he said.
The 6th Circuit ruling moves the case back to trial court, which
must calculate the damages owed. The amount may far surpass the
amount that was underpaid because of the Xactimate calculations.
The plaintiff's are also seeking pre-judgment interest on the
amount that was underpaid, which in Kentucky is 6 percent a year.
The scope of the class of defendants may also change as the case
moves forward. Circuit Justice David W. McKeague dissented to a
part of the ruling. He said the district court judge certified an
overly broad class of plaintiffs that includes claims by homeowners
who repaired their homes and were paid those full costs.
McKeague said State Farm did not breach the terms of its policies
those cases.
"(In other words, State Farm was contractually obligated to be a
good neighbor, not a great one,)" McTeague wrote in dissent. He
said he expects the trial court to address that question before a
final order is issued.
State Farm issued this statement: "State Farm respectfully
disagrees with the appellate court's decision affirming class
certification in this case. We deny the allegations and are
confident we have upheld our commitment to our policyholders."
[GN]
STONE BREWING: Worker Must Arbitrate Background Check Claims
------------------------------------------------------------
Jacklyn Wille, writing for Bloomberg Law, reports that California
craft brewery Stone Brewing Co. successfully maneuvered a proposed
class action challenging its employment applications and background
checks into individual arbitration, after a ruling by a federal
judge in the U.S. District Court for the Southern District of
California.
The employment application Jesse Dominguez submitted to Stone in
2015 contained a valid and binding arbitration agreement, Judge
William Q. Hayes ruled July 2. The agreement was set forth in its
own paragraph and Dominguez was required to initial the paragraph
to signify that he read and agreed to its terms, Hayes said.
Dominguez argued the agreement was invalid, because his employment
application was superseded by an offer letter that contained no
arbitration requirement. Hayes disagreed, saying the offer letter
was silent as to arbitration and didn't override the arbitration
language in the employment application.
Hayes also ruled that Dominguez must arbitrate his claims on an
individual basis, rather than as a class representative. Because
the arbitration agreement was silent on the question of class
arbitration, Hayes said Dominguez is limited to pursuing his claims
individually.
Dominguez's lawsuit claims the background investigation form in
Stone's employment application improperly combined a background
investigation disclosure and authorization into one document and
failed to include required disclosures. He brought class claims
under the Fair Credit Reporting Act and California consumer
protection and business laws.
Stone is based in Southern California and is the country's
ninth-largest brewer of craft beer, according to its website.
Justice Law Corp. represented Dominguez. Andrews, Lagasse, Branch &
Bell LLP represented Stone.
The case is Dominguez v. Stone Brewing Co., 2020 BL 248429, S.D.
Cal., No. 3:20-cv-00251, 7/2/20. [GN]
STUDENTUNIVERSE.COM INC: Thoman Seeks Refund of Processing Fees
---------------------------------------------------------------
Eric Thoman, individually and on behalf of all others similarly
situated v. StudentUniverse.com Inc., Case No. 1:20-cv-11326-WGY
(D. Mass., July 14, 2020), is brought on behalf of all persons, who
purchased travel from the Defendant, whose travel was cancelled by
travel providers in response to the Coronavirus Disease 19
pandemic, and who the Defendant charged a processing fee to receive
a refund.
The lawsuit also seeks the return of processing fees the Defendant
charged to request refunds, an injunction prohibiting the Defendant
from charging such fees going forward, and any other relief as may
be just and proper under the law.
On February 25, 2020, the Plaintiff booked through the Defendant
one-way airfare on United Airlines between New York City and Split,
Croatia. Prior to departure, United Airlines unilaterally canceled
the Plaintiff's flight. United Airlines has publicly announced that
it would refund in full airfare for flights it had cancelled due to
COVID-19 travel restrictions. Once the Plaintiff learned that his
flight had been cancelled, he telephoned the Defendant to request a
refund. The Defendant representative advised Plaintiff that to
process a fare refund on his behalf, he would be charged by the
Defendant a $40 "processing fee."
On May 21, 2020, the Defendant notified the Plaintiff that he would
be refunded $375.86. This amount is $81.08 less than the Plaintiff
had paid to the Defendant. The Defendant did not previously
disclose that a "processing fee" would be required for it to
process any refund request. Such policy is not written in the Terms
and Conditions linked to the Plaintiff's itinerary and the
Plaintiff did not agree to it, according to the complaint.
Hundreds, if not thousands, of other United States travelers
similarly have been charged unlawful "processing fees."
In response to public complaints, the Defendant has admitted that
"nominal handling fees are being used to cover the extra costs of
operations during this unprecedented time. The Defendant has
further sought to justify its unlawful practice: "We are not trying
to profit, just attempting to cover costs during this time." While
cancellations during the COVID-19 pandemic are unfortunate, the
Plaintiff should not be required to bear the risk of loss in these
circumstances or charged after-the-fact processing fees for
refunds, says the complaint.
The Defendant is one of the world's leading travel booking sites
for students and promotes itself as "empowering young adults to
experience the world with discount travel."[BN]
The Plaintiff is represented by:
Jonathan M. Jagher, Esq.
Kimberly A. Justice, Esq.
FREED KANNER LONDON & MILLEN LLC
923 Fayette St.
Conshohocken, PA 19428
Phone: (610) 234-6487
Email: jjagher@fklmlaw.com
kjustice@fklmlaw.com
- and -
Katrina Carroll, Esq.
CARLSON LYNCH LLP
111 W. Washington Street, Suite 1240
Chicago, IL 60602
Phone: (312) 750-1265
Email: kcarroll@carlsonlynch.com
- and -
Gary F. Lynch, Esq.
CARLSON LYNCH LLP
1133 Penn Avenue, 5th Floor
Pittsburgh, PA 15222
Phone: (412) 322-9243
Email: glynch@carlsonlynch.com
- and -
Michael K. Yarnoff, Esq.
THE KEHOE LAW FIRM
2 Penn Center Plaza, Suite 1020
1500 JFK Boulevard
Philadelphia, PA 19102
Phone: (215) 792-6676
Email: myarnoff@kehoelawfirm.com
SUBARU OF AMERICA: Faces Class Action Over Defective Fuel Pumps
---------------------------------------------------------------
Jim Walsh, writing for Cherry Hill Courier-Post, reports that
Subaru of America is facing another class-action lawsuit over an
alleged defect in some of its vehicles.
The suit, filed in Camden federal court, seeks damages for drivers
who own or lease Subarus alleged to have defective fuel pumps.
The fuel pumps, which prompted an ongoing recall of some 200,000
Subaru vehicles, can cause "unpredictable acceleration and engine
stalls," the lawsuit says.
"We are aware of the lawsuit and we are currently investigating the
allegations," Subaru spokesman Dominick Infanti said on July 10.
Subaru also faces class-action suits filed this year that allege
defects for vehicle batteries and a sudden-acceleration problem in
multiple models.
"We stand behind the quality and safety of Subaru vehicles,"
Infanti added in a statement.
"If a customer is experiencing any problems with their vehicle, we
recommend that it be taken to an authorized Subaru retailer for
inspection," he said.
The latest suit seeks to represent at least 200,000 people who own
or lease Subaru models with "Denso low-pressure fuel pumps and fuel
pump assemblies."
Denso is a Japanese auto parts manufacturer that supplied the pumps
to Subaru, according to the suit. It contends Denso identified the
potential for the defect in a 2016 patent application.
Subaru cited concerns with the fuel pump in announcing a recall in
April for 2019 Outback, Ascent, Impreza and Legacy models.
The Outback was Subaru's top-selling vehicle last year, while sales
more than doubled for the Ascent SUV, which was introduced in
2018.
The Impreza and Legacy ranked fifth and sixth, respectively, among
the firm's eight models,
The 77-page complaint contends "a substantial number" of cars with
the alleged flaw "have not even been recalled yet, leaving vehicle
owners without the means to repair the pump or even the knowledge
that this dangerous defect exists."
The suit includes several pages of complaints made by Subaru owners
to the National Highway Traffic Safety Administration since "at
least 2013."
Among other damages, the suit seeks recovery of the purchase price
of affected vehicles, compensation for overpayment and a court
order requiring Subaru to "replace or recall and fix the affected
vehicles."
Attorney James Chechi of Roseland brought the suit in the names of
two men who leased Subaru vehicles, John Micklo of Minnesota and
Gilles Cohen of Florida. [GN]
TASTE AND SABOR: Tambriz Sues Over Unpaid Minimum, Overtime Wages
-----------------------------------------------------------------
Xum Tambriz, Octaviano Xum Tambriz, and Ruben Romero Robles,
individually and on behalf of others similarly situated v. TASTE
AND SABOR LLC (D/B/A TASTE AND SABOR), JACOB R. SELECHNIK and
NURKIA DELEON, Case No. 1:20-cv-05409 (S.D.N.Y., July 14, 2020), is
brought for unpaid minimum and overtime wages pursuant to the Fair
Labor Standards Act of 1938, and for violations of the N.Y. Labor
Law, and the "spread of hours" and overtime wage orders of the New
York Commissioner of Labor codified, including applicable
liquidated damages, interest, attorneys' fees and costs.
The Plaintiffs worked for the Defendants in excess of 40 hours per
week, without appropriate minimum wage, overtime, and spread of
hours compensation for the hours that they worked, according to the
complaint. Rather, the Defendants failed to maintain accurate
recordkeeping of the hours worked and failed to pay the Plaintiffs
appropriately for any hours worked, either at the straight rate of
pay or for any additional overtime premium. Further, the Defendants
failed to pay the Plaintiffs the required "spread of hours" pay for
any day in which they had to work over 10 hours a day.
The Defendants maintained a policy and practice of requiring the
Plaintiffs to work in excess of 40 hours per week without providing
the minimum wage and overtime compensation required by federal and
state law and regulations, says the complaint.
The Plaintiffs were employed as cooks at the restaurant.
The Defendants own, operate, or control a restaurant specializing
in Greek and Mexican cuisine, located in Bronx, New York, under the
name "Taste and Sabor."[BN]
The Plaintiffs are represented by:
Michael Faillace, Esq.
MICHAEL FAILLACE & ASSOCIATES, P.C.
60 East 42nd Street, Suite 4510
New York, NY 10165
Phone: (212) 317-1200
Facsimile: (212) 317-1620
TEAMHEALTH: Faces Class Action Over Fraudulent Billing Practices
----------------------------------------------------------------
A class-action lawsuit filed against TeamHealth details widespread
fraudulent medical billing practices by the hospital contractor,
and accuses it of skirting state laws banning the corporate
practice of medicine, according to attorneys at Hagens Berman.
The lawsuit filed in the U.S. District Court for the Northern
District of California on July 10, 2020 states that TeamHealth has
placed private profits over public health by creating an enterprise
with the sole purpose of "profiting from patients' health
emergencies," and has engaged in fraudulent billing rates and
charges.
"TeamHealth controls the terms of its physicians' employment, all
physician staffing decisions, and, most importantly, all the rates
its physicians and practice groups charge patients," the lawsuit
reads. "The successful goal of this enterprise is to maximize
corporate profits while avoiding state bans on the corporate
practice of medicine."
If you receive or received care from a TeamHealth physician, find
out more about the lawsuit and your rights.
"Most states bar the corporate practice of medicine, and for good
reason. TeamHealth is exactly the kind of pseudo-health
conglomerate state laws are designed to stop," said Steve Berman,
managing partner of Hagens Berman and attorney representing the
class of individuals. "Its sole role has been to take advantage of
those who are most vulnerable and in need – those experiencing
health emergencies."
"TeamHealth's name is the exact and utter antithesis of its role in
the health care sector."
The private equity-funded corporation contracts with hospitals to
take over their emergency, critical care, radiology and
anesthesiology departments, supplying them with doctors and other
medical professionals as well as running their administrative
functions. In 2016, TeamHealth boasted that it controlled 17
percent of the emergency medicine market in the United States.
The lawsuit accuses Team Health Holdings of violating the Racketeer
Influenced and Corrupt Organizations Act through this enterprise,
including mail and wire fraud, as well as violating state consumer
protection laws.
TeamHealth's Fraudulent Billing Explained
From a patient's perspective, TeamHealth medical professionals
appear to be employed by the hospitals in which they operate. Their
staff work within the hospital and do not wear uniforms or other
apparel that would identify them as non-hospital staff.
Nonetheless, TeamHealth is a separate entity from the hospitals
with which it contracts, according to attorneys. Patients only
learn of this reality upon receipt of a separate bill from
TeamHealth.
The lawsuit states that TeamHealth sends fraudulent bills to
patients for the care they received from TeamHealth physicians.
These bills contain grossly inflated charges for medical
care—charges that TeamHealth is not legally entitled to recover.
And TeamHealth knows it.
"Patients sign no paperwork with TeamHealth—let alone agree on
price. Yet, the TeamHealth Fraudulent Billing Enterprise pursues
patients ruthlessly for far more than the reasonable value of their
services, through a medical debt collector that is a TeamHealth
subsidiary. The TeamHealth Fraudulent Billing Enterprise has sued
thousands of patients in the last few years, including patients who
would qualify for free care and reduced rates under hospitals'
'charity care' programs," the lawsuit states.
As hospitals have reported, "TeamHealth ER physicians expect to be
paid nearly three times the median rate for in-network physicians
at participating hospitals, and their billed charges are even
higher, at more than four times the median rate," the complaint
states.
"While TeamHealth bills and sues its own patients into debt and
duress, 60 percent of Americans cannot afford to pay an unexpected
medical bill of more than $1,000 and 66.5 percent of all
bankruptcies in the United States are due in whole or in part to
medical debt," Berman said.
About Hagens Berman
Hagens Berman Sobol Shapiro LLP -- http://www.hbsslaw.com-- is a
consumer-rights class-action law firm with nine offices across the
country. The firm's tenacious drive for plaintiffs' rights has
earned it numerous national accolades, awards and titles of "Most
Feared Plaintiff's Firm," and MVPs and Trailblazers of class-action
law. [GN]
TIKTOK INC: Faces Kukovec BIPA Suit Over Use of Biometric Data
--------------------------------------------------------------
Morgan Kukovec, individually and on behalf of all others similarly
situated v. TIKTOK INC. and BYTEDANCE INC., Case No. 1:20-cv-04170
(N.D. Ill., July 15, 2020), challenges the Defendants' brazen
exploitation of tens of thousands of Illinois resident minors
through calculated tactics designed to impermissibly obtain, use
and distribute the images, videos, voiceprints, data and biometric
data of minors in violation of the Illinois' Biometric Information
Privacy Act.
The Defendants' meteoric rise is largely attributable to its
branding, products and features targeting users under the age of 18
years, according to the complaint. Approximately 40% of its users
are under the age of 18, and lack legal capacity to consent or
contract with TikTok. Nevertheless, the Defendants knowingly
entices Illinois Minors into providing TikTok with images, videos,
data, biometric data and other confidential and private
information, without obtaining the written consent of a parent or
legal guardian. TikTok commercializes and profits from its brazen
exploitation of Illinois children and violations of Illinois law.
The Plaintiff contends that the Defendants elected to flout the
straightforward requirements of the BIPA, and instead have
deviously targeted teens and young adults by the illegal collection
of the Plaintiff's and Class member's biometric data, without first
providing the relevant disclosures, and denying the Plaintiff and
other Class members of their statutory rights under Illinois law.
The Defendants, through the use of the App, capture, receive,
obtain, store and/or use facial scans without obtaining informed
consent and by failing to make public their data and use and
retention policy, in direct violation of BIPA, says the complaint.
The Plaintiff reached the age of majority on June 15, 2020; but
downloaded, utilized, posted and appeared in videos on TikTok while
she was still a minor, as defined by Illinois law.
ByteDance Inc., the parent company of TikTok Inc., first launched
the TikTok app, that allows users to create short music and
lip-sync videos of 3 to 15 seconds and short looping videos of 3 to
60 seconds.[BN]
The Plaintiff is represented by:
Elizabeth C. Chavez, Esq.
Kathleen C. Chavez, Esq.
Robert M. Foote, Esq.
FOOTE, MEILKE, CHAVEZ & O'NEIL, LLC
10 West State Street, Suite 200
Geneva, IL 60134
Phone: (630) 232-7450
Fax: (630) 232-7452
Email: ecc@fmcolaw.com
kcc@fmcolaw.com
mjh@fmcolaw.com
UNIVERSITY OF CALIFORNIA: Kang Seeks Refund Over COVID-19 Closure
-----------------------------------------------------------------
ALVIN KANG, on behalf of himself and all others similarly situated
v. THE REGENTS OF THE UNIVERSITY OF CALIFORNIA, Case No.
3:20-cv-04443-JSC (N.D. Cal., July 2, 2020), is brought on behalf
of all persons, who paid, or will pay, tuition, housing if living
on campus, and/or fees to attend the University of California for
an in-person, hands on education for the Spring term, and any
future term and had their course work moved to online learning.
The Plaintiffs contends that such persons paid all or part of the
tuition, housing fees, and mandatory student fees that varied
depending upon which institution in the University system the
student was enrolled. The Plaintiff avers that the University has
not refunded any amount of the tuition or Mandatory Fees, even
though it ceased in-person learning since mid-March 2020. The
University has also not refunded any amount of the housing fees for
students who were unable to move out by certain strict move-out
dates.
Due to the University's response to the COVID-19 pandemic, by
mid-March, the University ceased or severally limited any of the
services or facilities that tuition, housing, and Mandatory Fees
were intended to cover.
The Plaintiff seeks, for himself and Class members, the
University's disgorgement and return of the pro-rated portion of
its tuition and Mandatory Fees proportionate to the amount of time
in the Terms when the Universities switched to online distance
learning, and in the case of housing, pro-rated portion of the
housing fees proportionate to the amount of time that remained in
each housing contract after each student moved out.
The Plaintiff is a citizen of Los Angeles. He paid to attend the
Winter 2020 Quarter and Spring 2020 Quarter at the University of
California San Diego (UCSD) as a full-time undergraduate student.
The University of California is a public research university
system, with ten universities, five medical centers and three
national labs. The ten universities within the University of
California system, and under the control of the Regents of the
University of California, are: UC Berkeley, UC Davis, UC Irvine,
UCLA, UC Merced, UC Riverside, UC San Diego, UC San Francisco, UC
Santa Barbara, and UC Santa Cruz. The University is governed by the
Regents of the University of California, established under Article
IX, Section 9 of the California State Constitution.[BN]
The Plaintiff is represented by:
Eric D. Zard, Esq.
CARLSON LYNCH, LLP
1350 Columbia Street, Suite 603
San Diego, CA 92101
Telephone: 619-762-1910
Facsimile: 619-756-6991
E-mail: ezard@carlsonlynch.com
USA TECHNOLOGIES: Pa. Court OKs Settlement in Securities Class Suit
-------------------------------------------------------------------
The Rosen Law Firm, P.A. on July 13 disclosed that the U.S.
District Court for the Eastern District of Pennsylvania has
approved the following announcement of a proposed class action
settlement that would benefit purchasers of USA Technologies, Inc.
Common Stock (OTCMKTS:USAT):
SUMMARY NOTICE OF PENDENCY AND PROPOSED CLASS ACTION SETTLEMENT
TO: ALL PERSONS WHO PURCHASED OR ACQUIRED USA TECHNOLOGIES,
INC. ("USAT") COMMON STOCK FROM AUGUST 22, 2017 THROUGH FEBRUARY 6,
2019, BOTH DATES INCLUSIVE, AND/OR PURCHASED USAT COMMON STOCK IN
OR TRACEABLE TO USAT'S MAY 23, 2018 FOLLOW-ON PUBLIC OFFERING.1
YOU ARE HEREBY NOTIFIED, pursuant to an Order of the United States
District Court for the Eastern District of Pennsylvania, that a
hearing will be held on October 30, 2020, at 10:30 a.m. before the
Honorable Joel H. Slomsky, United States District Judge of the
Eastern District of Pennsylvania, James A. Byrne U.S. Courthouse,
601 Market Street, Philadelphia, PA 19106 for the purpose of
determining: (1) whether the proposed Settlement of the claims in
the above-captioned Action for consideration including the sum of
$15,300,000.00 should be approved by the Court as fair, reasonable,
and adequate; (2) whether the proposed plan to distribute the
Settlement proceeds is fair, reasonable, and adequate; (3) whether
the application of Plaintiffs' Counsel for an award of attorneys'
fees of up to 20% plus interest of the Settlement Amount,
reimbursement of expenses of not more than $125,000, and an Award
to Plaintiffs of no more than $20,000 in total, should be approved;
and (4) whether this Action should be dismissed with prejudice as
set forth in the Stipulation and Agreement of Settlement, dated May
29, 2020 (the "Settlement Stipulation"). The Court reserves the
right to hold the Settlement Hearing telephonically or by other
virtual means.
If you purchased or otherwise acquired USAT common stock during the
period from August 22, 2017 through February 6, 2019, both dates
inclusive, and/or in or traceable to USAT's May 23, 2018 follow-on
public offering pursuant to USAT's Registration Statement and
Prospectus issued in connection therewith, your rights may be
affected by this Settlement, including the release and
extinguishment of claims you may possess relating to your ownership
interest in USAT common stock. If you have not received a detailed
Notice of Pendency and Proposed Settlement of Class Action
("Notice") and a copy of the Proof of Claim and Release Form, by
First Class mail or this Summary Notice by email, you may obtain
copies by writing to or calling the Claims Administrator: USA
Technologies, Inc. Securities Litigation, c/o Strategic Claims
Services, 600 N. Jackson St., Ste. 205, P.O. Box 230, Media, PA
19063; (Tel) (866) 274-4004; (Fax) (610) 565-7985;
info@strategicclaims.net. You can also download copies of the
Notice and submit your Proof of Claim and Release Form online at
www.strategicclaims.net. If you are a member of the Settlement
Class, in order to share in the distribution of the Net Settlement
Fund, you must submit a Proof of Claim and Release Form
electronically or postmarked no later than September 10, 2020 to
the Claims Administrator, establishing that you are entitled to
recovery. Unless you submit a written exclusion request, you will
be bound by any judgment rendered in the Action whether or not you
make a claim.
If you desire to be excluded from the Settlement Class, you must
submit to the Claims Administrator a request for exclusion so that
it is received no later than October 9, 2020, in the manner and
form explained in the Notice. All members of the Settlement Class
who have not requested exclusion from the Settlement Class will be
bound by any judgment entered in the Action pursuant to the
Settlement Stipulation.
Any objection to the Settlement, Plan of Allocation, or Plaintiffs'
Counsel's request for an award of attorneys' fees and reimbursement
of expenses and Award to Plaintiffs must be in the manner and form
explained in the detailed Notice and received no later than October
9, 2020, and must be mailed to each of the following:
Clerk of the Court
United States District Court
Eastern District of Pennsylvania
James A. Byrne U.S. Courthouse
601 Market Street
Philadelphia, PA 19106
LEAD COUNSEL:
THE ROSEN LAW FIRM, P.A.
Phillip Kim
101 Greenwood Avenue
Suite 440
Jenkintown, PA 19046
COUNSEL FOR DEFENDANTS USAT AND HERBERT:
BALLARD SPAHR LLP
M. Norman Goldberger
1735 Market Street, 51st Floor
Philadelphia, PA 19103
COUNSEL FOR DEFENDANTS BARNHART, BROOKS, METZGER, MOSCHNER, REILLY,
AND SCHOCH:
FOX ROTHSCHILD LLP
Abraham C. Reich
Gerald E. Arth
2000 Market Street, 20th Floor
Philadelphia PA 19103
COUNSEL FOR DEFENDANT SINGH:
BAKER & HOSTETLER LLP
Douglas W. Greene
45 Rockefeller Plaza
New York, NY 10111
COUNSEL FOR DEFENDANTS WILLIAM BLAIR & COMPANY, L.L.C.,
CRAIG-HALLUM CAPITAL GROUP LLC, NORTHLAND SECURITIES, INC., AND
BARRINGTON RESEARCH ASSOCIATES, INC.:
MORGAN, LEWIS & BOCKIUS LLP
Marc J. Sonnenfeld
1701 Market Street
Philadelphia, PA 19103
If you have any questions about the Settlement, you may call or
write to Lead Counsel:
THE ROSEN LAW FIRM, P.A.
Phillip Kim
101 Greenwood Avenue, Suite 440
Jenkintown, PA 19046
Tel: (215) 600-2817
pkim@rosenlegal.com
PLEASE DO NOT CONTACT THE COURT OR THE CLERK'S OFFICE REGARDING
THIS NOTICE.
Dated: June 19, 2020
WALGREENS BOOTS: 4th Cir. Appeal Filed in JR Personal Injury Suit
-----------------------------------------------------------------
Plaintiffs J.R., et al., filed an appeal from a court ruling in
their lawsuit titled J.R. v. Walgreens Boots Alliance Inc., Case
No. 2:19-cv-00446-DCN, in the U.S. District Court for the District
of South Carolina at Charleston.
The nature of suit is stated as other personal injury.
The appellate case is captioned as J.R. v. Walgreens Boots
Alliance, Inc., Case No. 20-1767, in the United States Court of
Appeals for the Fourth Circuit.[BN]
Plaintiffs-Appellants J.R., individually and on behalf of her minor
minor children A.R. and H.K.; J.H., individually, and on behalf of
all others similarly situated; B.Y., individually, and on behalf of
all others similarly situated; and J.S., individually, and on
behalf of all others similarly situated, are represented by:
Adair Ford Boroughs, Esq.
4532 Meadowood Road
Columbia, SC 29206
Telephone: 843-608-0498
- and -
Charles W. Byrd, Esq.
Aimee J. Hall, Esq.
Michael J. Moore, Esq.
C. Neal Pope, Esq.
POPE MCGLAMRY PC
3392 Peachtree Road NE
Atlanta, GA 30326
Telephone: 404-523-7706
E-mail: chuckbyrd@popemcglamry.com
aimeehall@popemcglamry.com
michaelmoore@popemcglamry.com
nealpope@popemcglamry.com
- and -
Edward L. Hardin, Jr., Esq.
EDWARD L. HARDIN JR. LAW OFFICE
PO Box 530567
Birmingham, AL 35253-7223
Telephone: 205-908-7223
- and -
Arthur Raphael Miller, Esq.
HARVARD LAW SCHOOL
1545 Massachusetts Avenue
Cambridge, MA 02138-0000
- and -
William Norman Nettles, Esq.
Frances Cornelia Trapp, Esq.
BILL NETTLES LAW
2008 Lincoln Street
Columbia, SC 29201
Telephone: 803-814-2826
E-mail: bill@billnettleslaw.com
fran@billnettleslaw.com
- and -
Wade H. Tomlinson, III, Esq.
POPE MCGLAMRY PC
1200 Sixth Avenue
Columbus, GA 36901
Telephone: 706-324-0050
E-mail: triptomlinson@popemcglamry.com
Defendants-Appellees WALGREENS BOOTS ALLIANCE, INC., and WALGREEN
CO. are represented by:
David Eidson Dukes, Esq.
Adam J. Hegler, Esq.
Amanda Sally Kitts, Esq.
NELSON MULLINS RILEY & SCARBOROUGH, LLP
P. O. Box 11070
Columbia, SC 29211
Telephone: 803-255-9451
E-mail: david.dukes@nelsonmullins.com
adam.hegler@nelsonmullins.com
amanda.kitts@nelsonmullins.com
- and -
Kate Elizabeth Heinzelman, Esq.
SIDLEY AUSTIN, LLP
1501 K Street, NW
Washington, DC 20005-1401
Telephone: 202 736 8416
E-mail: kheinzelman@sidley.com
- and -
Robert N. Hochman, Esq.
Scott David Stein, Esq.
SIDLEY AUSTIN, LLP
1 South Dearborn Street
Chicago, IL 60603-0000
Telephone: 312-853-7520
E-mail: rhochman@sidley.com
sstein@sidley.com
WELLS FARGO: Bankers Criticize $22.4MM Judgment in Fax Case
-----------------------------------------------------------
Mark Friedman, writing for Arkansas Business, reports that a $22.4
million judgment against Wells Fargo Bank tied to a case over
unwanted faxes wasn't based in reality, according to bankers'
associations.
"That result cannot stand under Arkansas law," according to a
friend-of-the-court brief the Arkansas Bankers Association and the
American Bankers Association asked to be filed in Wells Fargo's
appeal of the judgment. In May, the Arkansas Court of Appeals
denied the bankers' request, although Judges Ray Abramson, Kenneth
Hixson and Waymond Brown said they would have allowed the bankers
to file the brief.
The appeal stems from Wells Fargo's entanglement in a
multimillion-dollar legal strategy involving class-action lawsuits
over unwanted faxes.
In the case, class representative M.S. Wholesale Plumbing Inc. of
Russellville accused WestFax Inc. of Centennial, Colorado, of
relaying more than 42,000 faxes that did not meet the specific
opt-out requirements of the decades-old federal Telephone Consumer
Protection Act. M.S. Wholesale is represented by attorneys James
Streett of the Streett Law Firm in Russellville and Joe P. Leniski
Jr. of Branstetter Stranch & Jennings in Nashville, Tennessee. It
was the second TCPA case to yield an eight-figure class-action
award for M.S. Wholesale and the same lawyers in Pope County
Circuit Court.
In 2018, WestFax was hit with a $21.1 million class-action judgment
in favor of M.S. Wholesale Plumbing. Shortly after the judgment was
entered, Wells Fargo was pulled into the case.
Wells Fargo once held accounts belonging to WestFax. In April 2019,
the bank received two writs of garnishments. A bank employee
responded to one of the writs by saying WestFax's account was
closed. But Streett said in Pope County Circuit Court filings that
the response didn't answer his questions.
Pope County Circuit Judge Dennis Sutterfield agreed, which led to a
hearing in June 2019 to determine the amount of the garnishment. To
prepare for the hearing, Streett sent Wells Fargo two questions.
The key one asked Wells Fargo to admit that it held $22.4 million
-- WestFax's judgment plus interest -- when it received the writ of
garnishment.
Wells Fargo didn't respond to the questions. (In court filings,
Wells Fargo said it wasn't properly served with the request for
admissions.) But since Wells Fargo did not respond to the question
with a denial, the statement that it held $22.4 million of
WestFax's money was accepted as true. That allowed M.S. Wholesale
to obtain the judgment from Wells Fargo on behalf of class
members.
The bankers said in their brief the judgment shouldn't stand
because it "redistributes $22 million overnight from Wells Fargo to
the Plaintiffs based on a fiction," according to the filing by
William Waddell Jr. of the Little Rock law firm on July 10 Eldredge
& Clark.
"It is a staggering judgment against a third-party with no direct
liability, and where a statute expressly caps liability to the
funds actually held. Interpreting the bank-garnishment statute to
bless this result would be unjust."
The bankers said in the brief that it was "undisputed" that at the
time the writ of garnishment was served Wells Fargo didn't have any
WestFax money. WestFax's accounts at Wells Fargo were closed in
January, months before the garnishment writ was served, the brief
said.
"Confronted with this information, the circuit court refused to set
aside or amend the specific judgment," the brief said.
The bankers said that allowing the ruling to stand would encourage
a new default-judgment practice.
"There will be nothing to lose, and much to gain, by sending a post
default request for admission on sky-high damages, and using that
as the only evidence at the damages hearing," the brief said.
Wells Fargo asked the Court of Appeals to reverse the garnishment
judgment and dismiss it.
"Due process of law does not permit a $22.4 million penalty or
sanction for failing to respond to a discovery request," attorney
Andrew King of the Little Rock office of Kutak Rock LLP said in the
appeal filing.
But M.S. Wholesale argued it did what the trial court, the Arkansas
Rules of Civil Procedure and the Arkansas Rules of Evidence allowed
it to do to determine how much of WestFax's money Wells Fargo held
that could be garnished, according to the filing by attorney Brian
Brooks of Greenbrier, who is representing M.S. Wholesale and the
class in the appeal.
"Wells Fargo's belated attempts to side-step the judgment entered
against it were rightly rejected by the trial court, and that
rejection should be affirmed," Brooks wrote.
On May 13, the state Court of Appeals granted Wells Fargo's request
for oral arguments, but a court date had not been set as of July 8.
[GN]
WILLSPEED TECHNOLOGY: Faces Class Action Over GermBloc Claims
-------------------------------------------------------------
Ryan Nelson, writing for HBW Insight, reports that like other hand
sanitizer manufacturers, WillSpeed Technology claims its GermBloc
"kills 99.99% of germs." Plaintiffs in a proposed class action
filed in Massachusetts federal court allege the claim "grossly
overstates" the product's efficacy, deceiving consumers and
endangering them with false confidence. [GN]
WIRECARD AG: Levi & Korsinsky Reminds of Sept. 8 Plaintiff Deadline
-------------------------------------------------------------------
The following statement is being issued by Levi & Korsinsky, LLP:
To: All persons or entities who purchased or otherwise acquired
securities of Wirecard AG ("Wirecard") (OTC Pink: WRCDF) between
August 17, 2015 and June 24, 2020. You are hereby notified that a
securities class action lawsuit has been commenced in the the
United States District Court for the Eastern District of
Pennsylvania. To get more information go to:
https://www.zlk.com/pslra-1/wirecard-ag-loss-submission-form?prid=7895&wire=5
or contact Joseph E. Levi, Esq. either via email at
jlevi@levikorsinsky.com or by telephone at (212) 363-7500. There is
no cost or obligation to you.
The complaint alleges that throughout the class period Defendants
issued materially false and/or misleading statements and/or failed
to disclose that: (1) Wirecard overstated its cash balances during
the Class Period, falsely claiming 1.9 billion of cash in a trust
account that was missing; (2) Wirecard overstated its financial
results during the Class Period, including revenue and EBITDA; (3)
Wirecard did not have adequate risk management or countermeasures;
(4) the Company's external auditor failed to audit Wirecard in
accordance with applicable auditing principles; and (5) as a
result, Defendants' statements about Wirecard's business,
operations, and prospects, were materially false and misleading
and/or lacked a reasonable basis at all relevant times.
If you suffered a loss in Wirecard you have until September 8, 2020
to request that the Court appoint you as lead plaintiff. Your
ability to share in any recovery doesn't require that you serve as
a lead plaintiff.
Levi & Korsinsky is a nationally recognized firm with offices in
New York, California, Connecticut, and Washington D.C. The firm's
attorneys have extensive expertise and experience representing
investors in securities litigation and have recovered hundreds of
millions of dollars for aggrieved shareholders. Attorney
advertising. Prior results do not guarantee similar outcomes.
Joseph E. Levi, Esq.
Levi & Korsinsky, LLP
55 Broadway, 10th Floor
New York, NY 10006
Tel: (212) 363-7500
Fax: (212) 363-7171
E-mail: jlevi@levikorsinsky.com [GN]
WIRECARD AG: Robbins LLP Files Suit for Misleading Shareholders
---------------------------------------------------------------
Shareholder rights law firm Robbins LLP announces that a purchaser
of Wirecard AG (OTC: WCAGY, WRCDF) filed a class action complaint
against the Company for alleged violations of the Securities
Exchange Act of 1934 between August 17, 2015 and June 24, 2020.
Wirecard is a technology company that provides outsourcing and
white label solutions for electronic payments worldwide.
According to the complaint, throughout the relevant period Wirecard
had represented that its consolidated financials accurately
reflected its cash balances and revenue. However, on June 18, 2020,
Wirecard revealed that its publication of its annual and
consolidated financial statements for 2019 would be delayed and
that its auditor believed "spurious balance confirmations" were
provided to "create a wrong perception of the existence of such
cash balances . . . for to the benefit of Wirecard group
companies." Then, on June 22, 2020, Wirecard disclosed that there
was a "prevailing likelihood that the bank trust account balances
in the amount of 1.9 billion EUR do not exist." Subsequently, on
June 23, 2020, CNN reported that Wirecard's former CEO was arrested
for allegedly inflating Wirecard's financials "through fake
transactions in order to make it more attractive to investors and
customers." Finally, on June 24, 2020, Reuters reported that
Wirecard was being investigated by the Philippines for its missing
$2.1 billion after the Philippine banks supposedly holding the
money denied having any ties to Wirecard. Following all of these
disclosures, Wirecard's ADRs plummeted, falling a staggering 98% in
its ADS price for both its WCAGY and WRCDF trading tickers.
Leo Kandinov
Robbins LLP
E-mail: lkandinov@robbinsllp.com
Tel No.: (800) 350-6003 [GN]
[*] Campaign Group to Fight Move to Curb Class Action Funding
-------------------------------------------------------------
Colin Brinsden, writing for Yahoo! News, reports that a campaign
group hopes to level the playing field against businesses lobbying
Canberra to curb funding for people attempting to take legal action
when they have been wronged by corporate giants.
The Keep Corporations Honest campaign aims to give Australians a
coordinated voice to fight against a push to limit access to class
actions by big business.
Federal parliament's Joint Committee on Corporations and Financial
Services was set to hold a hearing into litigation funding and the
regulation of the class action industry on
July 13.
Class action lawyer and campaign spokesman Ben Hardwick says over
the last 25 years, class actions have successfully transferred
billions in compensation from corporations who broke the law to
Australians who were hurt by illegal action.
"Small wonder multinationals are now lobbying our politicians to
change the system," Mr Hardwick says in a statement.
"But if the US Chamber of Commerce and their soldiers in the
Australian business community are successful it would be a disaster
for the nation."
He said Australians with valid and viable claims against
corporations would no longer have access to the funding necessary
to bring most class actions.
"It would be nice if class actions were free to run, but the
reality is fighting giants requires millions," Mr Hardwick said.
"So funding is necessary for most class actions to get off the
ground and run. Litigation funders provide an efficient means of
protecting litigants from risk, shielding the taxpayer from
expense, and keeping corporations honest."
The campaign statement quotes Rebecca Oates from Geelong who took
part in a recent class action against US pharmaceutical giant
Johnson & Johnson over a pelvic floor mesh that destroyed her
ability to work and took a heavy toll on her marriage and family.
"Corporations hate class actions, but we can't let them take away
our right to fight back when we've been injured or wronged," Ms
Oates says.
But a witness to appear at the July 13 parliamentary hearing Stuart
Clark believes the case for regulating the litigation funding
industry in Australia is "overwhelming".
The former president of the law Council of Australia says there is
broad support for regulation across the community.
In his submission to the inquiry, Mr Clark quotes Australian-based
global litigation funder Omni Bridgeway acknowledging the need for
a licensing regime to "prevent opportunistic and unnecessary
litigation" and protect class members. [GN]
[*] CBD Class Actions Stayed on Primary Jurisdiction Grounds
------------------------------------------------------------
David Biderman, Esq. -- DBiderman@perkinscoie.com -- Barak Cohen,
Esq. -- BCohen@perkinscoie.com
-- Julie Hussey, Esq. -- JHussey@perkinscoie.com -- and Tommy
Tobin, Esq., of Perkins Coie LLP, in an article for Bloomberg Law,
report that CBD companies facing class action lawsuits regarding
product labeling during this time of regulatory uncertainty have a
reasonable chance of succeeding in a motion to stay on primary
jurisdiction grounds, say Perkins Coie LLP attorneys. But, they
must be sure to tie anticipated agency rulemaking to the claims at
issue before the court.
Already this year, federal courts in California and Florida have
stayed three putative class actions against cannabidiol (CBD)
companies on primary jurisdiction grounds. These judges are
deferring action within the cases until the Food and Drug
Administration (FDA) completes its initial decision-making on
regulating CBD. But the application of primary jurisdiction across
the country to CBD class actions has not been uniform, nor is it
guaranteed.
The growth in the CBD product market comes amidst increasing
attention from regulators and private litigants. In November 2019,
the FDA sent a flurry of warning letters concerning open questions
about CBD product safety and the agency's oversight.
During the Covid-19 public health emergency, the FDA has placed
increased attention on products, including some containing such as
CBD, that claim market effectiveness in treating or preventing.
Perhaps because of this unexpected effort, the agency has yet to
provide meaningful and clear guidance about how it plans to
regulate the legal labeling and sale of CBD products.
Meanwhile, private plaintiffs have launched a new wave of class
action lawsuits against CBD companies. This creates the risk that
courts will determine the future of CBD labeling laws, rather than
federal or state regulatory authorities. Primary jurisdiction
provides courts the opportunity to stay a case pending initial
determinations at the applicable agency.
What Is Primary Jurisdiction?
Primary jurisdiction is a longstanding prudential court doctrine.
It allows courts to stay or, less commonly, dismiss matters pending
initial decision-making within the competence of an administrative
agency. Clark v. Time Warner Cable (9th Cir. 2008).
The primary jurisdiction doctrine's purpose is to allow the courts
to avail themselves of the agency's expertise, protect the
integrity of the applicable regulatory scheme, and promote
uniformity. Greenfield v. Yucutan Foods LP (S.D. Fla. 2014).
Courts examine a number of factors in determining whether to wait
on agency action before advancing its determination of the case.
One important consideration -- which has particular relevance to
CBD -- is whether the issue involved requires expertise or
uniformity in its administration. See Syntek Semiconductor Co. v.
Microchip Tech Inc. (9th Cir. 2002) (noting that factors include
"(1) the need to resolve an issue that (2) has been placed by
Congress within the jurisdiction of an administrative body having
regulatory authority (3) pursuant to a statute that subjects an
industry or activity to a comprehensive regulatory authority that
(4) requires expertise or uniformity in administration.").
How Does Primary Jurisdiction Apply to CBD?
In announcing the agency's issuance of 15 warning letters in
November 2019, the FDA reported that it would provide an update to
its regulation of CBD products "in the coming weeks." A few months
prior, the agency held a public hearing regarding regulatory
pathways for CBD products. Former FDA Commissioner Dr. Scott
Gottlieb proposed an expedited regulatory review of CBD-containing
products.
In a report to Congress earlier this year, the FDA noted its
ability to regulate the "vast proliferation of CBD consumer
products" has been far outstripped by the market's growth.
As of June, the agency reported that it has made "substantial
progress" on potential CBD regulations but has not provided a
timeline for clear regulatory action.
In the absence of a clear federal classification and regulatory
system involving CBD products, many companies have faced lawsuits
regarding CBD product, and such litigation is expected to increase
over the next year. Such suits often allege either that the CBD
contained in the product is inaccurately labeled or that CBD
products, particularly CBD-containing food and beverage products,
are illegal to sell per the FDA's November 2019 announcements.
At least three cases have stayed proceedings while the FDA
continues to deliberate and makes its initial determinations as to
uniform, federal CBD product labeling requirements. Snyder v. Green
Roads of Florida LLC (S.D. Fla. 2020); Colette v. CV Sciences Inc.
(N.D. Cal 2020); Glass v. Global Widget LLC (E.D. Cal. June 15,
2020).
While these cases involved differing allegations, they each relied
on similar reasoning to apply primary jurisdiction. This rationale
included:
* The need for consistent uniform guidance regarding CBD
products, especially if the FDA concludes that some or all CBD
products are food additives, supplements or nutrients that can be
safely marketed to the public;
* The FDA's proposed regulatory action appeared to be a proper
exercise of its regulatory authority as it regulates, among other
items, food additives, supplements and nutrients;
* The 2018 Farm Bill explicitly recognized the FDA's authority
to regulate products containing cannabis-derived compounds,
including hemp-derived products;
* The FDA's expertise is needed regarding open questions the
agency has posed over CBD product safety; and
* The FDA has expressed an active interest in regulating the
manufacture and marketing of CBD products.
With these reasons in mind, federal courts in Florida and
California have stayed cases on primary jurisdiction grounds until
the FDA concludes its decision-making process regarding the
marketing and labeling of CBD-containing products.
Takeaway
Even with strong precedent in favor of applying primary
jurisdiction, CBD companies cannot rely solely on forthcoming FDA
regulations for a litigation stay on primary jurisdiction grounds.
Instead, they must be sure to link the forthcoming rulemaking to
the issues in the case.
For example, a different judge in the Southern District of Florida
found that the primary jurisdiction did not apply because the
challenged claims did not correspond to the FDA's prospective
rulemaking regarding CBD labeling. This case alleged that the
amount of CBD on the labeling of CBD-containing products was
inaccurate. Potter v. Potnetwork Holdings Inc. (March 30, 2020).
The court declined to apply a stay as the forthcoming FDA actions
were unlikely to change the food labeling requirements at issue,
namely whether the products' labeling could misstate the amount of
CBD it contained.
Accordingly, CBD companies facing class action lawsuits regarding
product labeling during this time of regulatory uncertainty have a
reasonable chance of succeeding in a motion to stay on primary
jurisdiction grounds. But they must be sure to tie anticipated FDA
rulemaking to the claims at issue before the court. [GN]
[*] Class Action Industry in Australia Needs More Regulation
------------------------------------------------------------
Jade Gailberger, writing for NCA NewsWire, reports that the funding
of class actions in Australia has been put under the microscope of
a parliamentary committee.
Legal experts and the nation's largest litigation funder on July 13
raised concerns about the oversight of the industry.
Former Productivity Commission commissioner Warren Mundy rejected
suggestions a rise in the number of class actions in Australia was
about raising money for "evil foreign shareholders".
"(The) core proposition that this is about delivering justice to
people is absolutely the case," Dr Mundy said, adding it was a
reflection on the growth of the economy.
"Should we be concerned about how well people do from the
proceedings . . . the answer is absolutely yes.
"The solution, however, is not banning access to financing of
litigation by persons who voluntarily enter into matters."
UNSW law professor Michael Legg said a Federal Court judge should
be allowed to review, change or set fees taken by lawyers or class
litigation funders from victims.
Omni Bridgeway chief executive Andrew Saker said the returns the
company earned from funding class action cases was proportionate to
the risks it took on.
"We support the introduction of the minimum 50 per cent return of
gross proceeds to class action group members," he said.
Labor and government committee members clashed during the inquiry.
Opposition legal affairs spokesman Mark Dreyfus has condemned the
inquiry as a sham that aims to deny justice and fair compensation
to ordinary Australians.
"Litigation funding and class actions provide a vital path to
justice for Australians trying to uphold and enforce their rights,"
he said.
Menzies Research Centre spokesman James Mathias, whose submission
came under scrutiny, said the regulation overseeing the industry
was non-existent.
From August, litigation funders will need an Australian financial
services licence.
They would also be required to comply with the managed investment
scheme rules. [GN]
[*] Court Approves $4MM Attorneys Fees in Bushfire Class Action
---------------------------------------------------------------
Andrew Thomson, writing for The Standard, reports that Maddens
Lawyers of Warrnambool have had costs approved by the Supreme Court
of $4 million for running a bushfire class action case. [GN]
[*] Cruise Industry Faces Class Action Threat Over Coronavirus
--------------------------------------------------------------
Laura Forman, writing for Bangkok Post, reports that landlubbers
who wrote this industry off for dead just don't get it.
Cruise lines have navigated their share of hardships over the last
several decades, but now they face what some see as a true
existential threat from a mix of canceled business, heightened
regulations, lawsuits and cleanup costs amid the pandemic.
Fortunately for them, it seems hard-core cruise goers can't wait to
climb back aboard. Their loyalty should eventually resuscitate
battered shares of major operators Carnival, Royal Caribbean
Cruises and Norwegian Cruise Line -- as long as they can stay
afloat financially in the meantime.
Research by the Cruise Lines International Association (CLIA) shows
the number of cruise passengers has grown each year for the past
decade, with a cumulative 30% growth in passengers over the past
five years. This growth has come even in the wake of recent
disasters like the 2012 capsizing of the Costa Concordia, which
killed 32 people, a 2013 engine room fire-turned-sewage flood and
frequent instances of mass illness onboard.
While that streak will be broken in 2020, cruise goers are like
Moby-Dick's Ishmael: drawn to the sea, no matter how it throws
them. Analysts estimate about 30% are repeat customers. Carnival
says the majority of its guests are, with many taking at least one
cruise every year and some taking two or more. As with casino
patrons, status in loyalty programs is a big draw, earning repeat
cruisers anything from a lapel pin to a private dinner with their
ship's captain.
The market has been expanding, too. UBS analyst Robin Farley notes
that, while cruises are historically known to attract an older
cohort, millennials are actually the fastest-growing segment of the
market in absolute and percentage terms. Indeed, from high-end to
budget, cat-themed to gothic, it seems there is now a cruise for
literally anyone.
Clearly, the coronavirus has put the industry into a holding
pattern without a definitive end and eroded some trust as well.
A Wall Street Journal investigation found cruise ship operators
initially played a role in Covid-19's spread, sailing on despite
passengers and crew showing symptoms of the disease. Regulations as
a result of the disease's spread have since sidelined new voyages.
The Centers for Disease Control and Prevention issued a no sail
order for large cruise ships that will stand until at least late
July. CLIA has issued a voluntary suspension of sailings from U.S.
ports until September 15, and Carnival has now canceled all North
American cruises through September 30.
When ships set sail again, the experience could look quite
different. Packed bars, shows, pools and onboard buffets will have
to wait until there is minimal risk of infectious disease.
Despite that, cruise loyalists are moving forward with plans for
their next journey, even while ships remain docked. Carnival
recently reported growing demand for cruises due to set sail next
year, and not just from people trying to redeem the credits they
got for canceled cruises earlier this year.
In a six-week stretch ending May 31, about two-thirds of Carnival's
2021 bookings were from people without those credits, the company
said. Royal Caribbean recently said it was also seeing acceleration
in 2021 bookings, exceeding pre-pandemic levels.
Indeed, 85% of cruise travelers in a May survey by UBS said they
are likely to cruise again, 62% said they will cruise just as often
in the future and more than half said they expect to cruise again
in the next 18 months. A June survey from Cruise Critic, a travel
website, shows 32% of its readers are already looking to book their
next cruise.
Cruise executives say they expect re-entry to be staged a few ships
at a time rather than all at once. Analysts say an easy start will
be shorter trips to private islands, which alleviate cross-border
regulation risks and allow companies to control who comes and goes,
all while enabling enhanced social distancing once onshore.
Carnival owns two private islands and Royal Caribbean recently made
a major splash in the industry, investing $250 million to turn a
Bahamian beach into a theme park featuring the tallest waterslide
in North America and the largest wave pool in the Caribbean.
Regulatory and legal risks do muddy the waters. Tensions between
cruise lines and the CDC have been mounting, according to people
familiar with the matter. Meanwhile lawmakers are investigating the
role of cruise operators in spreading the coronavirus, while
plaintiff's attorneys are reportedly pursuing potential
class-action class action claims over alleged consumer and
shareholder fraud, as well as potential employment law violations.
Liquidity also becomes more of a concern the longer cruise ships
are docked. But Carnival said it ended its fiscal second quarter
with $7.6 billion in available liquidity, which at its average
monthly burn rate would support operations for about a year without
service.
Royal Caribbean said last month it has roughly $5.2 billion in
total liquidity -- enough to get through what Chief Financial
Officer Jason Liberty describes as a "prolonged out-of-service
period," plus some leftover cash to ready itself for service.
Shares of all three major cruise lines plunged by more than 80%
from mid-January to mid-March. While they have recovered some of
those losses, shares of all three major cruise corporations are
down well over 50% from pre-Covid levels.
U.S. regulators have long been concerned about the cruise
industry's issues managing health outbreaks on board. Now, Chairman
of the House Committee on Transportation and Infrastructure Peter
DeFazio says he is concerned Carnival in particular "is still
trying to sell this cruise line fantasy," ignoring future threats
to public health.
Call it what you will, but it is the industry's most loyal
customers who are fantasizing about their next stroll on the lido
deck. [GN]
[*] Inquiry Into Class Action Industry in Australia Launched
------------------------------------------------------------
Jim Wilson, writing for 2GB, reports that the Parliamentary Joint
Committee on Corporations and Financial Services has launched its
inquiry into the regulation of the class action industry.
Slater and Gordon's head of class action Ben Hardwick and class
action litigant Rebecca Oates are spearheading a counter-campaign
to 'keep corporations honest'.
Mr Hardwick told Jim Wilson class actions are a vital way to "level
the playing field . . . to take on the big end of town".
"If you want to sue a large bank or insurance company, it takes a
lot of effort and a lot of money.
"You can bet your bottom dollar . . . the bank's going to get the
best lawyers in town."
He believes the inquiry is the result of business lobbyists trying
to have the law changed in favour of powerful corporations.
"We've already seen . . . the Morrison government take steps to
water down class action laws, and this parliamentary inquiry is
just another step."
Ms Oates participated in a class action against American medical
device manufacturer Johnson & Johnson after she received a faulty
pelvic mesh implant.
She told Jim the litigation helped her on a path to physical and
psychological recovery.
"I began to seek medical treatment again, and stand up for myself,
and know that I wasn't alone, I wasn't crazy, and this was
happening to thousands of other women across the country.
"It would just be a shame if things changed, and little people like
me wouldn't be able to get together and seek justice." [GN]
[*] Lawmakers Fight Arbitration, Class Action Waiver Clauses
------------------------------------------------------------
Gavin W. Skok and Kristen W. Broz, writing for CPO Magazine, report
that consumer companies have increasingly been adding arbitration
requirements and class action waiver clauses to their consumer
terms and conditions. The Supreme Court has been supportive of
those clauses, but California lawmakers and courts have not.
California lawmakers continued their decade-long battle against
arbitration and class action waiver clauses in the California
Consumer Privacy Act ("CCPA"), California's newest and most
aggressive consumer protection law in the data privacy space.
OneTrust DataGuidance Schrems II: Reaction and Analysis
The CCPA purports to make any class action waiver or arbitration
agreement unenforceable through Cal. Civ. Code § 1798.192, which
reads:
Any provision of a contract or agreement of any kind that purports
to waive or limit in any way a consumer's rights under this title,
including, but not limited to, any right to a remedy or means of
enforcement, shall be deemed contrary to public policy and shall be
void and unenforceable.
Hyperproof - CMMC Demystified
Companies that handle large amounts of personal identifying
information ("PII") and their lawyers have been preparing for CCPA
compliance and enforcement since the law initially passed in June
2018, but there has been little discussion of its potential impact
on the enforceability of arbitration and class action waiver
clauses. However, now that CCPA is here and numerous class action
lawsuits have been filed against companies -- including those with
arbitration and class action waiver clauses in their consumer
agreements -- this issue will come front and center. Below, we
outline the current law regarding enforceability of arbitration and
class action waiver clauses and discuss how courts will likely
address these issues in CCPA litigation.
A brief history of the Supreme Court's support for arbitration and
class action waivers
Over the last decade, the Supreme Court has consistently enforced
arbitration agreements and class action waivers over state laws
that attempt to limit or prohibit them -- particularly California
laws.
First, in AT&T Mobility LLC v. Concepcion, 563 US 333 (2011), the
Supreme Court held that a California state contract rule that
deemed class action waivers in arbitration clauses contained in
consumer contracts invalid under certain circumstances was
preempted by the Federal Arbitration Act ("FAA") because it stood
as an obstacle to the accomplishment of the full purpose of the
FAA. Central to the Concepcion holding was the principle that
arbitration agreements cannot be singled out from other types of
contracts for negative treatment, but instead "courts must place
arbitration agreements on an equal footing with other
contracts…and enforce them according to their terms." Id. at 339
(internal citations omitted).
Two years later, in American Express Co v. Italian Colors
Restaurant, 133 S. Ct. 2304 (2013), the Supreme Court rejected the
argument that class action waivers and arbitration clauses should
not be enforced when prosecuting individual claims in arbitration
would be cost prohibitive.
Following Concepcion and Italian Colors, California has continued
its attempts to limit class action waivers and arbitration
clauses--but the Supreme Court repeatedly has blocked California's
efforts. Indeed, in 2015, the Supreme Court overturned a decision
of the California Court of Appeals refusing to enforce a class
action waiver and doubled-down on its rule that the FAA also
preempts state laws that single out class action waivers in
arbitration agreements. See DIRECTV, Inc. v. Imburgia, 136 S. Ct.
463, 468 (2015) (finding that the FAA "allows parties to an
arbitration contract considerable latitude to choose what law
governs some or all of its provisions, including the law governing
enforceability of a class-action waiver").
Beyond its ongoing arbitration clause turf war with California, the
Supreme Court has continuously expanded the applicability of the
principle of "non-discrimination" against arbitration agreements
articulated in Concepcion. For example, in 2017, the Supreme Court
held that a Kentucky rule that purported to invalidate arbitration
agreements executed by individuals holding powers of attorney for
nursing home residents was preempted by the FAA, reiterating that
the Kentucky rule improperly "singles out arbitration agreements
for disfavored treatment." Kindred Nursing Ctrs. Ltd. v. Clark,
137 S. Ct. 1421, 1424-24 (2017).
More recently, in Lamps Plus Inc. v. Varela, the Supreme Court held
that courts may not infer the parties' consent to class arbitration
from ambiguous agreements--a key protection for companies seeking
to mitigate class action risk through consumer arbitration
agreements. 139 S. Ct. 1407, 1419 (2019). Under Lamps Plus, class
arbitration is impermissible unless expressly permitted by the
parties' arbitration agreement.
Thus, a central theme through nearly a decade of Supreme Court
decisions is that state law cannot single out arbitration
agreements and class action waivers for disfavored treatment. Any
state law that does so runs afoul of the FAA and will be preempted.
However, as discussed in the next section, recent action by the
Supreme Court implies that the Court's support for such agreements
is not limitless, and potentially signals a lengthy battle ahead as
businesses attempt to enforce arbitration agreements and class
action waivers against CCPA claims.
California carve outs
Although the Supreme Court has struck down multiple California
rules limiting the enforceability of class action waivers and
arbitration clauses, there are at least two remaining ways
claimants can bring certain representative actions in California,
even in the face of otherwise broad arbitration agreements with
class action waivers.
First, California courts continue to allow employees to bring
claims acting as private state attorneys general under the
California Private Attorney General Act ("PAGA") to enforce alleged
violations of the California Labor Code. Cal. Labor Code ("CLC")
Sections 2698-2699.5. In Iskanian v. CLS Transportation Los
Angeles, LLC, 173 Cal. Rptr. 3d 289, 315 (Cal. 2014), the
California Supreme Court held that:
[A] PAGA claim lies outside the FAA's coverage because it is not a
dispute between an employer and an employee arising out of their
contractual relationship. It is a dispute between an employer and
the state, which alleges directly or through its agents--either the
Labor and Workforce Development Agency or aggrieved employees --
that the employer has violated the Labor Code.
In Correia v. NB Baker Elec., Inc., the California Court of Appeals
went a step further and held that employment agreements that
purportedly require the arbitration of any potential PAGA claims
are unenforceable. 32 Cal. App. 5th 602 (Cal. Ct. App. 2019).
Because of the PAGA's focus on labor code violations, this
exception should have little or no impact on CCPA class actions.
Second, the California Supreme Court ruled in McGill v. Citibank,
N.A., 2 Cal.5th 945 (2017), that a contract purporting to waive a
party's right to seek public injunctive relief (an injunction
requiring the defendant company to change the way it does business
with all California residents) in any forum under California's
Consumer Legal Remedies Act or Unfair Competition Law is
unenforceable. The Ninth Circuit recently held that the FAA does
not preempt the McGill rule. See Blair v. Rent-A-Center, Inc., 928
F.3d 819 (9th Cir. 2019); Tillage v. Comcast Corp., 772 Fed.Appx.
569 (9th Cir. 2019); McArdle v. AT&T Mobility LLC, 772 Fed.Appx.
575 (9th Cir. 2019). Central to the Ninth Circuit's holding was
the fact the McGill rule is a "generally applicable contract
defense" that applies "equally to arbitration and non-arbitration
agreements" and does not single out arbitration agreements for
disfavored treatment. See Blair, 928 F.3d at 827.
On June 8, 2020, the United States Supreme Court denied certiorari
on (i.e., refused to review) the Ninth Circuit's decisions in the
Tillage v. Comcast and McArdle v. AT&T Mobility cases, passing up
the opportunity to strike down the McGill rule. This decision
surprised some observers who expected that the Supreme Court would
take these cases and, following its recent trend, roll back the
McGill rule. For now, however, the Supreme Court's refusal to wade
into this debate means that the McGill rule remains good law and
bars companies from requiring their customers to waive their right
to seek public injunctive relief. Companies must deal with the
fact that a federal or California state court has the power to hear
a California consumer's claim for a public injunction that would
require the company to change the way it does business with all
California residents.
Arbitration and class action waivers in CCPA litigation
As noted above, the CCPA purports to prohibit "any provision of a
contract or agreement of any kind that purports to waive or limit
in any way a consumer's rights under this title, including, but not
limited to, any right to a remedy or means of enforcement. . ."
Cal. Civ. Code Sec. 1798.192. This language seems plainly directed
at class action waivers and arbitration clauses because they limit
a particular "means of enforcement"--indeed, it is difficult to
imagine other situations where this provision might apply. Thus,
companies seeking to enforce their arbitration agreements and class
action waivers will have strong arguments this purported
restriction is preempted by the FAA because it "singles out
arbitration agreements for disfavored treatment." Kindred Nursing
Ctrs. Ltd. v. Clark, 137 S. Ct. 1421, 1424-24 (2017).
Further, the CCPA does not include a state-actor mechanism for
bringing a representative claim, like the mechanism found in the
PAGA. The CCPA only provides a private right of action for "any
consumer whose nonencrypted and nonredacted personal
information…is subject to an unauthorized access and
exfiltration, theft, or disclosure . . ." Cal. Civ. Code §
1798.150. Although the CCPA allows consumers to bring claims on a
class action basis, it does not provide a mechanism through which a
claimant may stand in the shoes of the state. Thus, the exceptions
to FAA preemption under the Iskanian rule are unavailable because
those exceptions rest on the lack of privity between the state and
the employer seeking to enforce an employment arbitration
agreement.
Similarly, the CCPA does not provide a mechanism for public
injunctive relief or afford claimants the ability to act as private
attorneys general, so claimants are unlikely to succeed in
asserting the McGill carve out from arbitration. However, the
Supreme Court's recent decision to pass up the opportunity to
invalidate the McGill rule leaves open the possibility that some
narrow exception for CCPA claims similar to the McGill rule might
survive -- or at least survive in lower California courts for long
enough to keep companies and consumers litigating whether companies
can require individual arbitration of CCPA claims.
Conclusion
Although the CCPA attempts to limit arbitration and class action
waiver clauses, we believe litigants will have a difficult time
enforcing the CCPA's anti-arbitration provision in light of
contrary Supreme Court precedent. Companies seeking to enforce
arbitration agreements against consumers bringing CCPA class
actions should expect vigorous opposition, as well as creative
arguments from the plaintiffs' bar that these clauses are
unenforceable under the CCPA. These issues could potentially take
years to resolve as they work their way through the appeals courts.
Meanwhile, companies should be vigilant in enforcing their
arbitration agreements and class action waivers, asserting them
promptly in any CCPA litigation to avoid waiving any right to
mandatory arbitration. [GN]
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S U B S C R I P T I O N I N F O R M A T I O N
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