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C L A S S A C T I O N R E P O R T E R
Thursday, August 13, 2020, Vol. 22, No. 162
Headlines
365 DELIVERY: Aaron Rangel Seeks Minimum Wages Under Labor Code
3M COMPANY: Lampkin Alleges Injury From Exposure to Toxic AFFF
A&T ENGINEERING: Chi Chen Suit Claims Overtime, Denied Paystubs
A.S.H.S. LIMITED: Blind Buyers Can't Use Website, Guglielmo Claims
AFFILION LLC: Court Dismisses Armijo Class Suit With Prejudice
ALIERA COMPANIES: Court Denies Bids to Dismiss Jackson Class Suit
ALIERA COMPANIES: Duncan Amends Class Action Complaint
ALTERRA MOUNTAIN: Christiansen Hits Cancelled Passes, Seeks Refund
AMERICAN HONDA: Banh's Bid for Class Certification Granted in Part
ANHEUSER-BUSCH LLC: App. Ct. Flips Certification Denial in Dhillon
APEX SYSTEMS: Not Compelled to Reply to Doc. Requests in Ratcliffe
BANNER HEALTH: Ariz. S.C. Vacates App. Ct. Ruling in Ansley Suit
BAYER: Grand Rapids Workers' Fund Hits Share Drop Over Merger Deal
BEL-AIR BAY: Fails to Pay Minimum Wages, Tizekker Labor Suit Says
BERGHOFF INT'L: 5th Circuit Upholds Dismissal of Perry FLSA Suit
BIOGEN INC: Ex-workers Sue Over Pension Fund Mismanagement
BMW OF NORTH AMERICA: Court Denies Certification of Class in Afzal
BRADLEY UNIVERSITY: Jane Doe Seeks Tuition Fee Refund
BURGER KING: Judge Tosses Lawsuit Over "Impossible Whopper"
BURROWS PAPER: Ransom Sues Over Unpaid Overtime for Packers
CAMELBAK PRODUCTS: Court Dismisses John Keller Class Suit
CARNIVAL CORP: Passengers Slam Mismanaged COVID-19 Outbreak
CARRIZO OIL: Chisum Suit Seeks Unpaid Overtime Pay
CLEARVIEW AI: Mutnick Can't Intervene in Calderon Class Suit
COOK COUNTY, IL: Expedited Discovery in Mays Class Suit Denied
COTE & CIEL INC: Guglielmo Claims Website to Blind-accessible
COVELLI ENTERPRISES: $4.62MM Deal in Kis Suit Gets Final Approval
DENALI INGREDIENTS: Wright Seeks Wages, OT Pay Under FLSA & WWPCL
DIMITRIOS KOLOVOS: Sack Sues Over Unpaid Wages, Tip Skimming
ELASTOS FOUNDATION: Bleichmar Fonti Named Lead Counsel in Owen Suit
ELK ENERGY: Court Conditionally Certifies Class of Inspectors
EMPIRE TODAY LLC: Young says Website not Blind-accessible
EROS INT'L: Bid to Dismiss NJ Consolidated Suit Due August 28
EXTEL SERVICES: Mackey Sues to Recover Final Paycheck, Overtime Pay
FCA US: Garcia TCPA Suit Moved to Florida District Court
FIELDCORE SERVICES: Trottier Suit Moved From California to Texas
FIFTH THIRD BANK: Court Dismisses Malagese Suit With Prejudice
FLEX LTD: Court Dismisses Kipling Securities Suit Without Prejudice
FLORIDA'S NATURAL: 2nd Cir. Upholds Dismissal of Axon Class Suit
FLORIDA: Faces Class Action Over Bar Closures Amid COVID-19
FLUOR CORP: Court Consolidates Chun & Union Class Suits
FOOD PLUS: Fouissi Seeks Unpaid Overtime Wages
GENWORTH LIFE: 11th Cir. Vacates Order Enjoining TVPX Virginia Suit
GLOBALSCAPE INC: Thompson Challenges Acquisition by Help/Systems
GODIVA CHOCOLATIER: Court Narrows Claims in Hesse Class Suit
GOOGLE: Dec. 2 Class Certification Hearing Set in Gender Pay Suit
GRACO CHILDREN'S: Davis-Berg Sues Over Defective Booster Seats
H & M HENNES: Settlement in Lao Employees Suit Has Prelim. Approval
HERSHA HOSPITALITY: Schaefer Suit Seeks to Certify Class Action
HORNBLOWER GROUP: Cartagena to Recover Gratuities, Spread-of-Hours
HOST HOTELS: Court Dismisses Strojnik's 2nd Amended ADA Lawsuit
INDEPENDENT BANK: Trial in BOH Holdings Merger Suit in May 2021
INFINITY FASTENERS: Rendon Sues Over Retaliation
JPMORGAN CHASE: Cardholders' Bid to Revive Class Action Suit Denied
KEURIG DR PEPPER: Agreement Reached with Indirect Purchaser Class
KNIGHT TRANSPORTATION: Class of Drivers Certified in Sampson Suit
KRISPY KREME: To Fight Class Action Over Fruit Filling
LA CASA BONITA: Davalo Seeks Unpaid Minimum, Overtime Wages
LEND-A-HAND SERVICES: $250,000 Deal in Walburn Gets Prelim Approval
LIVENT CORPORATION: Central Laborers Appeal Decision to 3rd Cir.
LYFT INC: Removes Rides by Spying Through App, Douglass Claims
MARYLAND: Court Grants Prelim. Injunction in Miranda ICE Suit
MDL 2262: Court Enters Final Judgment in LIBOR Antitrust Suit
MDL 2492: Manning Suit v. NCAA Over Health Issues Consolidated
MDL 2785: Court OKs Stage One of Class Notice Plan in EpiPen MDL
MEDSTAR HEALTH: Mismanages Retirement Plan, Watson Suit Alleges
MILLENNIUM HEALTH: Wins Summary Judgment in Mauthe TCPA Suit
MISSISSIPPI POWER: Court Dismisses Turnage Class Suit
MONTGOMERY COUNTY, TX: Certification Bid Ruling in Barrera Deferred
NEW HORIZONS: Gutierrez Suit Seeks Overtime Pay Under Labor Code
NEWMONT CORP: Shareholder Class Suit in Ontario Ongoing
OBALON THERAPEUTICS: Settlement Reached in Consolidated Class Suit
PRIMA CONTRACTING: Villa May Amend Complaint to Add Defendant
QUAN TRAN: Q3 Investments Recovery Suit Remanded to State Court
QUICK QUACK: Faces Curran Tort Suit in California Superior Court
REXAHN PHARMACEUTICALS: Thompson Challenges Merger With Ocuphire
ROCHESTER INSTITUTE: Quattrociocchi Seeks Tuition Fee Refund
RUBY RECEPTIONISTS: Ex Parte Contact With McKenzie Class Restricted
SELENE FINANCE: App. Ct. Affirms Dismissal of Amended Wheeling Suit
SENTINEL: Oaklandish Joins Business Interruption Claim Lawsuit
SINCLAIR BROADCAST: Court Dismisses Securities Class Action
SKANSKA USA: Class in Cortese FLSA Suit Conditionally Certified
SQUARETRADE INC: Starke May Not Intervene in Swinton, 8th Cir. Says
SS&C TECHNOLOGIES: Siyam's FLSA Suit Wins Collective Status
STATE FARM: Jaunich Sues Over Hidden Charges
SYNCHRONOSS TECHNOLOGIES: Court Narrows Claims in Securities Suit
TANDEM DIABETES: Data Breach-Related Class Suits Dismissed
TANDEM DIABETES: Defends 3 Calif. Class Suits over Data Breach
TELADOC HEALTH: Continues to Defend Reiner Suit
TELADOC HEALTH: Unit Continues to Defend Thomas TCPA Class Suit
TEMPLE UNIVERSITY: Fusca Seeks Tuition Fee Refund
THE ANDERSONS: Dennis Sues Over Wheat Futures Price-fixing
TRUECAR INC: Final Judgment Entered in Milbeck Securities Suit
VARSITY BRANDS: American Sues Over Monopoly Enterprise Conspiracy
VITOL INC: Isanpayu Suit Asserts Gas Price Manipulation
WHIRLPOOL PROPERTIES: Blinds Can't Access Web Site, Monegro Says
WINDSTREAM HOLDINGS: EarthLink Merger Related Suits Ongoing
WIRECARD AMERICAN: Hagens Berman to File Amended Complaint
[*] Expert Disputes Claim Class Action Lawsuits Have Tripled
[*] Indian Consumers Welcome Introduction of Class Action Suits
*********
365 DELIVERY: Aaron Rangel Seeks Minimum Wages Under Labor Code
---------------------------------------------------------------
AARON RANGEL v. 365 DELIVERY INC. and DOES 1 to 25, inclusive, Case
No. 20STCV29341 (Cal. Super., Los Angeles Cty., Aug. 4, 2020), is
brought on behalf of the Plaintiff and other similarly situated
aggrieved employees seeking to recover minimum wages under the
California Labor Code.
The Plaintiff contends that 365 Delivery did not provide him and
other similarly situated aggrieved employees with the minimum wages
to which they were entitled for all work performed and as such did
not compensate him and others for all hours worked at the minimum
wage rate pursuant to California Labor Code.
The Plaintiff started working for 365 Delivery on June 28, 2019.
The Plaintiff's last date of employment was November 8, 2019. The
Plaintiff was hired as a "driver" and was classified as an hourly,
non-exempt employee earning $15.50 per hour. The Plaintiff worked
approx. 4-5 days per week from 8:20 a.m. to 6:40 p.m.
365 Delivery is a package courier service located in Arcadia,
California.[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
3M COMPANY: Lampkin Alleges Injury From Exposure to Toxic AFFF
--------------------------------------------------------------
JAMES LAMPKIN v. 3M COMPANY (f/k/a Minnesota Mining and
Manufacturing Company); BUCKEYE FIRE EQUIPMENT COMPANY; CHEMGUARD,
INC.; CHEMOURS COMPANY FC, LLC; CHUBB FIRE, LTD.; CORTEVA, INC.; DU
PONT DE NEMOURS INC. (f/k/a DOWDUPONT INC.); DYNAX CORPORATION;
E.I. DU PONT DE NEMOURS AND COMPANY; KIDDE-FENWAL, INC.; KIDDE PLC;
NATIONAL FOAM, INC.; THE CHEMOURS COMPANY; TYCO FIRE PRODUCTS LP,
as successor-in-interest to The Ansul Company; UNITED TECHNOLOGIES
CORPORATION; UTC FIRE & SECURITY AMERICAS CORPORATION, INC. (f/k/a
GE Interlogix, Inc.), Case No. 2:20-cv-02820-RMG (D.S.C., Aug. 3,
2020), seeks damages for personal injury for the Plaintiff and for
those similarly situated resulting from exposure to aqueous
film-forming foams containing the toxic chemicals collectively
known as per and polyfluoroalkyl substances.
AFFF is a specialized substance designed to extinguish
petroleum-based fires. AFFF has been used for decades by military
and civilian firefighters to extinguish fires in training and in
response to Class B fires.
According to the complaint, the Defendants collectively designed,
marketed, developed, manufactured, distributed, released, trained
users, produced instructional materials, promoted, sold, and/or
otherwise released into the stream of commerce AFFF with knowledge
that it contained highly toxic and bio persistent PFASs, which
would expose end users of the product to the risks associated with
PFAS.
PFAS binds to proteins in the blood of humans exposed to the
material and remains and persists over long periods of time. Due to
their unique chemical structure, PFAS accumulates in the blood and
body of exposed individuals. PFAS are highly toxic and carcinogenic
chemicals. PFAS includes perfluorooctanoic acid ("PFOA") and
perfluorooctane sulfonic acid ("PFOS") and related chemicals,
including those that degrade to PFOA and/or PFOS. The Defendants
knew, or should have known, that PFAS remain in the human body
while presenting significant health risks to humans, the Plaintiff
contends.
The Plaintiff seeks to recover compensatory and punitive damages
arising out of the permanent and significant damages sustained as a
direct result of exposure to the Defendants' AFFF products at
various locations during the course of the Plaintiff's training and
firefighting activities.
The Lampkin case has been consolidated in MDL No. 2873, In Re:
Aqueous Film-Forming Foams Products Liability Litigation. The case
is assigned to the Hon. Judge Richard Gergel.[BN]
The Plaintiff is represented by:
Richard Zgoda Jr., Esq.
Steven D. Gacovino, Esq.
GACOVINO, LAKE & ASSOCIATES, P.C.
270 West Main Street
Sayville, NY 11782
Telephone: 631-600-0000
Facsimile: 631-543-5450
- and -
Gregory A. Cade, Esq.
Gary A. Anderson, Esq.
Kevin B. McKie, Esq.
ENVIRONMENTAL LITIGATION GROUP, P.C.
2160 Highland Avenue South
Birmingham, AL 35205
Telephone: 205-328-9200
Facsimile: 205-328-9456
A&T ENGINEERING: Chi Chen Suit Claims Overtime, Denied Paystubs
---------------------------------------------------------------
Chi Chen, individually and on behalf of others similarly situated,
Plaintiff, v. A & T Engineering, P.C., Robert H. Lin and Daniel
Lin, Defendants, Case No. 20-cv-03166 (E.D. N.Y., July 15, 2020),
seeks to recover unpaid minimum and overtime wages and redress for
failure to provide itemized wage statements pursuant to the Fair
Labor Standards Act of 1938 and New York Labor Law, including
applicable liquidated damages, interest, attorneys' fees and
costs.
A & T Engineering, P.C. is owned/managed by Robert H. Lin and
Daniel Lin. Chi Chen was employed as a civil engineer/draftsman
from on or about November 19, 2018 to June 5, 2020. He claims to
have worked in excess of 40 hours per week, without appropriate
minimum wage, overtime and spread of hours compensation for the
hours that they worked. A&T Engineering failed to maintain accurate
recordkeeping of the hours worked and failed to pay them
appropriately for any hours worked, either at the straight rate of
pay or for any additional overtime premium. Chen claims to be
misclassified as an independent contractor thus allowing A&T to
avoid paying the proper overtime rate and appropriate tax as an
employer as well as burdening Chen with the employer's portion of
social security tax and Medicare tax. [BN]
Plaintiff is represented by:
Adam Dong, Esq.
DONG, ADAM’S LAW FIRM PLLC
3708 Main St, Suite 308
Flushing, NY 11354
Tel: (929) 269-5666
Email: adam.dong@dongadams.com
A.S.H.S. LIMITED: Blind Buyers Can't Use Website, Guglielmo Claims
------------------------------------------------------------------
JOSEPH GUGLIELMO, individually and on behalf of all others
similarly situated, Plaintiff v. A.S.H.S. LIMITED, Defendant, Case
No. 1:20-cv-05919 (S.D.N.Y., July 30, 2020) is a class action
against the Defendant for violation of the Americans with
Disabilities Act and the New York City Human Rights Law.
According to the complaint, the Defendant discriminates against the
Plaintiff and all others visually-impaired consumers by failing to
design, construct, maintain, and operate a website that is fully
accessible to them. The Defendant's website, us.anyahindmarch.com,
lacks a variety of features and accommodations for
visually-impaired consumers, including the Plaintiff, to enjoy the
privileges and benefits of the website similar to that of a sighted
individual. The website's access barriers include, but not limited
to: (1) incompatibility with screen reader assisted software; (2)
lack of alternative text, an invisible code embedded beneath a
graphical image on a website, which prevents screen readers from
accurately vocalizing a description of the graphics; and (3) broken
links which directs users to a non-existent or error webpage.
As a result of the Defendant's failure and refusal to remove access
barriers to its website, the Plaintiff and Class members have been
and are still being denied equal access to the Defendant's numerous
services and benefits offered to the public through the website.
A.S.H.S. Limited is a bag and purse company that owns and operates
the website, us.anyahindmarch.com. [BN]
The Plaintiff is represented by:
David P. Force, Esq.
STEIN SAKS, PLLC
285 Passaic Street
Hackensack, NJ 07601
Telephone: (201) 282-6500
Facsimile: (201) 282-6501
E-mail: dforce@steinsakslegal.com
AFFILION LLC: Court Dismisses Armijo Class Suit With Prejudice
--------------------------------------------------------------
In the case, BENJAMIN ARMIJO and OFELIA RONQUILLO, on behalf of
themselves and all others similarly situated, Plaintiffs, v.
AFFILION, LLC; EMCARE, INC.; EMCARE HOLDINGS, INC.; ENVISION
HEALTHCARE CORPORATION; and ENVISION HEALTHCARE HOLDINGS, INC.,
Defendants, Case No. CV 19-750 KG/GJF (D. N.M.), Judge Kenneth J.
Gonzales of the U.S. District Court for the District of New Mexico
granted the Defendants' Motion to Dismiss Pursuant to Rule
12(b)(6).
The Plaintiffs initiated the action on July 9, 2019, in the First
Judicial District Court for the State of New Mexico, Santa Fe
County. In their First Amended Complaint, filed on July 29, 2019,
the Plaintiffs bring a purported class action against the
Defendants and claim the Defendants engaged in a systematic and
planned scheme to take advantage of those in need of medical care.
The Plaintiffs claim the Defendants formed "outsource provider"
relationships with hospitals and other medical facilities in order
to gouge those in need by foisting unreasonable and excessive fees
on such patients.
Specifically, the Plaintiffs state that the Defendants billed them
and the putative class members at excessive rates above the usual
and customary fees for similar medical services based on their
limited negotiating power. Plaintiff Armijo states he was a
patient at Mountain View Regional Medical Center on July 15, 2017
and July 27, 2017, and was billed $2,197 by the Defendants on July
15, 2017, and $988 by the Defendants on July 27, 2017. Similarly,
Plaintiff Ronquillo states she was a patient at Mountain View
Regional Medical Center on Nov. 24, 2018, for which she was billed
$2,197 by the Defendants. The Plaintiffs claim these fees were
unreasonable and excessive because they exceed the usual and
customary fees for such services, and they had no way to negotiate
lower and more reasonable fees.
The Plaintiffs bring four causes of action against the Defendants:
(1) negligence, (2) breach of implied contract, (3) common law
procedural unconscionability, and (4) common law substantive
unconscionability. They ask for injunctive relief as well as
compensatory and punitive damages.
The Plaintiffs bring the action on behalf of themselves and a
putative class defined as: All individuals who were sent medical
bills by the Defendants within the past 6 years for amounts that
exceed the highest in-network amount paid by major private health
insurance plans for such services.
The Defendants removed the case to federal court on Aug. 15, 2019,
asserting jurisdiction on the basis of 28 U.S.C. Sections 1332(d),
1441, 1446, and 1453, because it is a purported class action in
which there are more than 100 putative class members, it is between
citizens of different states, and the amount in controversy exceeds
the sum of $5 million. In their Motion to Dismiss, the Defendants
argue the Plaintiffs have failed to allege sufficient facts to
satisfy Fed. R. Civ. P. 8 and move for dismissal of their claims
for failure to state a claim upon which relief can be granted under
Fed. R. Civ. P. 12(b)(6).
Judge Gonzales finds that the Plaintiffs have not plead sufficient
facts to support a negligence claim. The Plaintiffs fail to allege
any legally recognized duty owed them by the Defendants. They also
point to no statute or case law that establishes a financial duty
based on a relationship between patients and medical billing
companies. In addition, the Plaintiffs do not allege that they did
not receive the medical services they were billed for or that they
actually paid for any services they did not receive.
The Plaintiffs have not also sufficiently plead a claim for breach
of implied contract. The Judge finds that the Plaintiffs make a
conclusory allegation that the usual and customary fee for medical
services should not exceed amounts the Defendants charge
"in-network" patients, but they do not allege facts as to how the
parties came to this understanding.
The Plaintiffs' claim that the Defendants' business practices
described are procedurally unconscionable, the Court further finds.
Their unconscionability claims are based on their allegation that
Defendants subjected them to an adhesion contract. Since the
Plaintiffs do not allege there was a contract between them and the
Defendants, or that the parties reached any sort of agreement,
their unconscionability claims fail at the outset. In addition,
the Plaintiffs' procedural unconscionability claim fails because
they do not allege they were pressured into signing a contract or
that they were unable to negotiate their bills with the Defendants.
Their substantive unconscionability claim also fails because they
do not make any specific allegations about how the amounts they
were charged were different than the rates charged to other
patients. Hence, the Plaintiffs' unconscionability claims do not
satisfy the Rule 12(b)(6) standard to state a claim for relief.
In their response to the Defendants' Motion to Dismiss, the
Plaintiffs ask for leave to amend their First Amended Complaint to
the extent this Court determines it is deficient under the 12(b)(6)
standard. The Court holds that the Plaintiffs submitted only a
bare request to amend in response to a motion to dismiss, and did
not submit a proposed amended complaint as required by Local Rule
15.1. Therefore, without any argument or allegations upon which to
determine whether to grant the Plaintiffs' request to amend, the
Court denies the request.
Judge Gonzales concludes all four of the Plaintiffs' claims will be
dismissed for failure to state a claim under Rule 12(b)(6), and he
denies the Plaintiffs' request to amend their complaint.
Therefore, the Plaintiffs' claims are dismissed with prejudice, the
Court rules
A full-text copy of the District Court's May 29, 2020 Memorandum
Opinon & Order is available at https://is.gd/Lldbgw from
Leagle.com.
ALIERA COMPANIES: Court Denies Bids to Dismiss Jackson Class Suit
-----------------------------------------------------------------
In the case, GERALD JACKSON, ROSLYN JACKSON and DEAN MELLOM,
Individually and on behalf of all others Similarly situated,
Plaintiffs, v. THE ALIERA COMPANIES, INC., a Delaware corporation;
ALIERA HEALTHCARE, INC., a Delaware Corporation; TRINITY
HEALTHSHARE, INC., a Delaware corporation, Defendants, Case No.
2:19-cv-01281-BJR (W.D. Wash.), Judge Barbara J. Rothstein of the
U.S. District Court for the Western District of Washington,
Seattle, denied the Defendants' motions to dismiss the case in its
entirety.
The Plaintiffs brought the putative class action suit against
Defendants Aliera Cos., including its now-defunct subsidiary Aliera
Healthcare, and Trinity Healthshare on Aug. 14, 2019. The
Plaintiffs, who are enrolled in Trinity's healthcare cost sharing
plan, allege that the Defendants: (1) sold them unauthorized health
insurance plans in violation of Washington law; and (2) engaged in
unfair and deceptive practices in violation of the Washington
Consumer Protection Act. The Plaintiffs claim that the Defendants
sold them health insurance plans in violation of both federal and
state health insurance laws.
Aliera is a Delaware corporation headquartered in Atlanta, Georgia.
On June 27, 2018, Aliera founded Trinity, a 501(c)(3) tax-exempt
organization that facilitates the sharing of medical costs amongst
its members. Trinity and Aliera then entered into a contract,
which authorized Aliera to use Trinity's non-profit status to sell,
market, and administer Trinity's healthcare plans, purported as
Health Care Sharing Ministry ("HCSM") plan, under the federal
Patient Protection and Affordable Care Act, giving Aliera complete
control over its proceeds and its administration of AlieraCare.
Aliera marketed, sold, and administered Trinity's AlieraCare plans,
which provided members benefits for medical coverage in exchange
for their monthly premiums.
The Plaintiffs, representatives of the putative class action,
enrolled in AlieraCare in 2018 and 2019. They each paid Trinity a
monthly premium to maintain their healthcare coverage. By
enrolling in AlieraCare, they expected that, in exchange for their
premiums, Trinity would pay certain claims for their coverage as
detailed by the Member Guide. However, the Plaintiffs were each
denied healthcare coverage under AlieraCare after submitting their
individual claims to Trinity.
The Plaintiffs filed the suit, on behalf of themselves and the
putative class, alleging that Defendants Aliera and Trinity sold
them unauthorized health insurance plans in violation of Washington
law. They are seeking to rescind their insurance contracts, or,
alternatively, to reform their illegal contracts to meet the
mandatory minimum benefits required under Washington law; and to
recover the insurance premiums they paid. They also seek to
recover damages under Washington's Consumer Protection Act,
alleging that Defendants unfairly and deceptively marketed, sold,
and administered unauthorized insurance plans to Washington
residents without having obtained the required approval for
insurance plan(s) from the Washington State Insurance
Commissioner.
Defendants Aliera and Trinity seek dismissal of all counts in the
First Amended Complaint, on various grounds. Both Defendants argue
that the putative class action should be dismissed because the
Plaintiffs have failed to exhaust the dispute resolution procedures
set out in the Member Guide. In addition, Defendant Trinity argues
that the Plaintiffs' claims are preempted by the Internal Revenue
Service's ("IRS") purported approval and recognition of Trinity as
a legitimate HCSM under the ACA. Finally, Defendant Aliera
contends that the Plaintiffs' contract claim should be dismissed as
inadequately pled under Federal Rule of Civil Procedure 12(b)(6).
The issue in the case is whether the Defendants sold the Plaintiffs
illegal insurance plans. The Plaintiffs contend that Trinity fails
to meet the statutory requirements for an HCSM, and therefore, its
AlieraCare plans are health insurance and are not exempt from
Washington insurance law. The Defendant Trinity contends that
Trinity is a valid HCSM, and, therefore, that the organization is
exempt from federal and state insurance laws.
In 2010, Congress passed the ACA, which required all individuals to
have health insurance coverage or pay a penalty for failing to
comply with this requirement. Congress carved out limited
exceptions to the ACA's individual mandate requirement, one of
which was reserved for members of existing HCSMs.
Judge Rothstein holds that the Plaintiffs have sufficiently pled
that Trinity does not qualify as a valid HCSM under the ACA.
Defendant Trinity has not provided sufficient facts to negate the
Plaintiffs' plausible allegation that Trinity is not a legitimate
HCSM under federal and state law. Taking the Plaintiffs'
allegations as true as the Court must at this stage in litigation,
the Judge concludes that the Plaintiffs have sufficiently alleged
that Trinity is not a legitimate HCSM under 26 U.S.C. Section
5000A, as neither Trinity nor Aliera existed prior to Dec. 31,
1999.
The Judge also concludes that the Plaintiffs have sufficiently pled
that the Dispute Resolution Procedures within Trinity's contracts
are in violation of Washington insurance law and therefore not
mandatory. Defendant Trinity's argument that its plans are not de
facto insurance, merely because "members are repeatedly advised
that Trinity's sharing program is not health insurance, nor a
legally binding agreement to reimburse any member for medical needs
a member may incur," is unconvincing. In the face of the
undisputed allegation that AlieraCare has almost identical
attributes to those of conventional health insurance plans, Trinity
points only to its own representations in its Member Guide and on
its website as evidence that its plans are not health insurance.
At most, this creates a dispute of fact. At this stage, however,
the Court must take as true the Plaintiffs' plausible allegations,
which support the conclusion that AlieraCare plans fit within the
definition of "insurance" under Washington law. Therefore, the
Judge concludes that Trinity is an insurance company for purposes
of the Defendants' Motions to Dismiss.
Finally, the Judge concludes that the Plaintiffs have sufficiently
alleged that Trinity is an insurance company, because the
AlieraCare plans that the Defendants created, marketed and sold are
insurance. For purposes of resolving these motions, therefore,
Trinity is subject to Washington insurance law. Because Trinity's
dispute resolution procedures clearly require more than "one level
of internal review before issuing a final determination" and
binding arbitration that deprives the Court of the jurisdiction of
this action, the Judge finds that the Plaintiffs have sufficiently
pled that Trinity's dispute resolution procedures are illegal under
the Washington insurance law. As such, the Plaintiffs are relieved
of any obligation to follow the dispute resolution procedures at
issue.
Based on the foregoing, Judge Rothstein denied the Defendants'
motions to dismiss.
A full-text copy of the District Court's May 26, 2020 Order is
available at https://is.gd/qCG5it from Leagle.com.
ALIERA COMPANIES: Duncan Amends Class Action Complaint
------------------------------------------------------
An amended complaint has been filed in the class action case,
CORLYN DUNCAN and BRUCE DUNCAN, individually and on behalf of all
others similarly situated, Plaintiffs, v. THE ALIERA COMPANIES,
INC., f/k/a ALIERA HEALTHCARE, INC., a Delaware corporation; and
TRINITY HEALTHSHARE, INC., a Delaware corporation, Defendants,
Civil Case No. 2:20-CV-00867-TLN-KJN (E.D. Cal.).
The Plaintiffs filed their Original Complaint on April 28, 2020,
and served Defendants Aliera and Trinity with it on April 29. The
Court issued the Scheduling Order on April 28, which states, in
relevant part, that the Parties will confer as required by Federal
Rule of Civil Procedure 26(f) within 60 days of service of the
Complaint. The current deadline for the Parties to confer was June
29, 2020.
Defendants Aliera and Trinity each filed a Motion to Dismiss, or
alternatively, Compel Arbitration, on June 10, in response to the
Plaintiffs' Complaint. Both Motions to Dismiss are set for hearing
on Aug. 20, 2020.
Good cause exists to allow the Plaintiffs to file the Amended
Complaint adding an additional Defendant, OneShare Health, LLC,
formerly known as Unity Healthshare, LLC, and revising the
Complaint to address issues raised by Defendant Trinity in its
Motion to Dismiss, pursuant to Fed. R. Civ. P. 15(a) and 16(b).
The Plaintiffs provided the Defendants with a draft of the proposed
Amended Complaint. After they reviewed the Amended Complaint, the
Defendants consented to its filing. The filing is timely under the
Scheduling Order.
Good cause also exists to continue the Parties' deadline to confer
under Rule 26(f) until 60 days after service of the additional
Defendant, so that all the Defendants may participate in a single
Rule 26(f) conference.
The Parties stipulate and agree that Defendants Aliera and
Trinity's respective Motions to Dismiss Plaintiffs' Complaint will
be taken off calendar upon the filing of the Plaintiffs' Amended
Complaint, and the Defendants' deadline to respond to the
Plaintiffs' Amended Complaint will be 21 days after service of the
Amended Complaint upon OneShare Health.
Accordingly, the Parties, by and through their counsel of record,
stipulated and requested that the Court find good cause to (a)
permit the Plaintiffs to file the Amended Complaint attached in
Appendix A; (b) set Defendants Aliera and Trinity's deadline to
file a responsive pleading at 21 days after service of the Amended
Complaint on OneShare; and (c) modify the Scheduling Order and
continue the deadline to confer under Rule 26(f) until 60 days
after the additional Defendant is served. The Court granted the
stipulation in a June 26, 2020 Order available at
https://is.gd/UP9cPY from Leagle.com.
The Plaintiff have subsequently filed the First Amended Complaint
on June 26, 2020.
The Defendants have until Aug. 18, 2020 to answer or otherwise
respond to the Amended Complaint.
Richard E. Spoonemore, Pro Hac Vice, Eleanor Hamburger --
ehamburger@sylaw.com -- Pro Hac Vice, SIRIANNI YOUTZ SPOONEMORE
HAMBURGER PLLC, Seattle, WA, Attorneys for Plaintiffs.
BURR & FORMAN LLP, Alan D. Leeth -- aleeth@burr.com -- Attorneys
for Defendant THE ALIERA COMPANIES INC.
BAKER & HOSTETLER LLP, Elizabeth M. Treckler --
etreckler@bakerlaw.com -- Attorneys for Defendant TRINITY
HEALTHSHARE, INC.
ALTERRA MOUNTAIN: Christiansen Hits Cancelled Passes, Seeks Refund
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Mark Christiansen, an individual person on behalf of himself and
all others similarly situated, Plaintiff, v. Alterra Mountain
Company U.S. Inc. and Ikon Pass Inc., Defendants, Case No.
20-cv-02021, (D. Colo., July 10, 2020), seeks restitutionary
damages, a full cash refund, an award of reasonable attorney's fees
and costs and such other and further relief resulting from breach
of contract/warranty and for violation of the Colorado Consumer
Protection Act.
Alterra operates ski resorts in Colorado where Christiansen
purchased season Ikon Passes for the 2019-2020 ski season but was
canceled as a result of the COVID-19 pandemic. Christiansen claims
to be denied a refund. [BN]
Plaintiff is represented by:
Christopher J. Cormier, Esq.
BURNS CHAREST LLP
4725 Wisconsin Avenue, NW, Suite 200
Washington, DC 20016
Telephone: (202) 577-3977
Email: ccormier@burnscharest.com
- and -
Kevin Landau, Esq.
TAUS, CEBULASH & LANDAU, LLP
80 Maiden Lane, Suite 1204
New York, NY 10038
Telephone: (212) 931-0704
Email: klandau@tcllaw.com
AMERICAN HONDA: Banh's Bid for Class Certification Granted in Part
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In class action lawsuit captioned as Jimmy Banh, et al., v.
American Honda Motor Compant, Inc., Case No. 2:19-cv-05984-RGK-AS
(C.D. Cal.), the Hon. Judge R. Gary Klausner entered an order:
1. denying without prejudice the Plaintiffs' motion for
class certification as to the Plaintiffs who have been
compelled to arbitration;
2. denying as moot the Plaintiffs' motion for class
certification as to the Plaintiffs who have been
dismissed;
3. denying Plaintiffs' Motion for Class Certification
insofar as it seeks certification of seven proposed
classes;
4. granting in part and denying in part the Plaintiffs'
Motion for Class Certification insofar as it seeks
certification of 13 state-specific classes:
a. The motion is granted to the extent it seeks
certification of a California Class. The Court appoints
the Plaintiff Banh as class representative. The
California Class is defined as follows:
"all persons or entities who purchased a new Class Car
from an authorized Acura dealer in California."
b. The Motion is denied in all other respects.
5. denying without prejudice the Defendant's motions to
strike;
6. severing and transferring the Plaintiffs' claims as
follows:
a. Bulbrey's claims are severed and transferred to
the District of Arizona.
b. Gonzales' claims are severed and transferred to
the District of Utah.
c. Hanna's claims are severed and transferred to
the District of Massachusetts.
d. M. Klein's claims are severed and transferred to
the District of Oregon.
e. Moss' claims are severed and transferred to the
District of New Mexico.
7. severing and transferring the remaining claims of the non-
California Plaintiffs once the parties have completed the
requested supplemental briefing; and
8. continuing the deadline to file Motions in Limine and
other pre-trial materials for 30 days.[CC]
ANHEUSER-BUSCH LLC: App. Ct. Flips Certification Denial in Dhillon
------------------------------------------------------------------
In the case, MANMOHAN DHILLON et al., Plaintiffs and Appellants, v.
ANHEUSER-BUSCH, LLC et al., Defendants and Respondents, Case No.
F074952 (Cal. App.), the Court of Appeals of California for the
Fifth District reversed the trial court's order denying the
Plaintiffs' motion for class certification.
The Plaintiffs filed the action on behalf of themselves and a class
of persons similarly situated. The Plaintiffs and the class they
seek to represent own and operate retail convenience stores in
Fresno and Madera counties, and sell beer manufactured by Defendant
Anheuser-Busch, which they purchased from its distributor,
Defendant Donaghy Sales, LLC. California law requires wholesalers
of beer to sell to retailers on a non-discriminatory basis and to
charge only the prices filed with the Department of Alcoholic
Beverage Control ("ABC"). A wholesaler may not charge a special
price to a particular customer. The wholesaler's prices may be
modified by filing a new or amended schedule of prices with the
ABC.
The Plaintiffs alleged that, in violation of the wholesale beer
pricing and unfair competition laws, the Defendants engaged in a
systematic scheme to favor certain retailers over others in the
pricing of beer defendants sold to them. During the class period
(the four-year period preceding the filing of the complaint),
Donaghy sold beer to certain retailers at effective wholesale
prices that were lower than the prices filed with the ABC. It did
that by providing certain "favored retailers" with
disproportionately large numbers of consumer coupons for discounts
off the retail price of beer.
Instead of providing the coupons to consumers, however, the favored
retailers redeemed them themselves, not related to a particular
sale of beer to a consumer as required by the coupons. They
redeemed the coupons by presenting them to Donaghy for credit
against a subsequent purchase of beer, by redeeming them through a
third-party redemption center, or, if in the form of a check, by
depositing the check in the retailer's bank account. Some aspects
of the scheme were known to "non-favored retailers, the members of
the proposed class," who were provided "comparatively insignificant
numbers of coupons," but the full extent of the scheme was
concealed from the named plaintiffs and the proposed class.
The Plaintiffs alleged that, as a result of the scheme, favored
retailers who received the coupons effectively paid wholesale
prices below the prices filed with the ABC, and lower than the
prices paid by disfavored retailers; that gave the favored
retailers an unfair competitive advantage because they could sell
beer at retail at a price below the wholesale price paid by the
disfavored retailers. This forced the disfavored retailers to
match, or attempt to match, the favored retailers' lower prices,
often at below the disfavored retailers' wholesale prices. The
Defendants also sometimes dictated the retail prices the disfavored
retailers could charge, requiring them, through threats of
retaliation, to charge higher prices than the favored retailers.
The second amended complaint alleged brothers Vinay Vohra and
Vikram Vohra, as well as others to be identified later, were
favored retailers and co-conspirators with defendants. They
allegedly accepted large numbers of coupons and used them to
compete unfairly, including by selling at retail below the
wholesale price filed with the ABC, in active cooperation with the
Defendants.
The Plaintiffs alleged four causes of action: (1) unlawful business
practices; (2) unfair business practices, including allegations of
incipient violation of antitrust law; (3) secret payment or
allowance of rebates; and (4) soliciting or participating in a
violation of the unfair competition laws.
The Plaintiffs filed a motion for class certification. They
defined the class to be certified as: All persons who own retail
business establishments in Fresno and Madera Counties classified in
the Donaghy sales database within one of the following channel
descriptions and channel id numbers ('Cid#'): a)
Convenience/Cid#190); b) Oil and service/Cid#195); c)
Grocery/Cid#265; d) Gas and convenience/Cid#294; e) Package
liquor/Cid#290; f) Mom and Pop/Cid#175; g) Deli/Cid#180; h)
Bodega/Cid#185; and i) Package Liquor/Cid#290 and which purchased
from Defendant Donaghy beer manufactured and/or sold by Defendant
Anheuser-Busch during the period from Oct. 10, 2010 through Dec.
31, 2014 excluding the Vohra brothers and Hardeep Singh and all
entities owned, controlled by or affiliated with any of them.
The Defendants opposed the motion.
The trial court denied the motion for class certification,
concluding the Plaintiffs failed to demonstrate the existence of an
ascertainable class. The Plaintiffs appealed, and the California
Appellate Court initially issued an opinion affirming the order.
The Plaintiffs' petition for review by the Supreme Court was
granted. Subsequently, the Supreme Court transferred the matter
back to the California Appellate Court, with instructions to vacate
its decision and reconsider the matter in light of its recent
decision in Noel v. Thrifty Payless, Inc. The Appellate Court
vacated its prior decision, and now reconsiders the matter as
directed.
The Appellate Court holds that in order to demonstrate the proposed
class is ascertainable, a class action plaintiff need not show, at
the time of class certification, how the members can be identified,
or how the members can be distinguished from those who are not
members of the class. The plaintiff need only show that the
proposed class is defined in terms of objective characteristics and
common transactional facts that make it possible to identify the
class members when that becomes necessary. The Appellate Court
interprets Noel to mean a plaintiff can satisfy its burden of
showing it will be possible to identify the class members when
necessary by showing the definition will allow the members either
to identify themselves as part of the class or to be identified
through records of relevant transactions.
The Appellate Court finds that the exclusion from the proposed
class of the Vohra brothers, Singh, and their retail ent ities, and
no other "favored" retailers, appears to present issues more
appropriately considered in connection with the other elements of
the class certification analysis: a well-defined community of
interest and substantial benefits to the litigants and the court
from class certification.
In light of Noel's clarification of the element of
ascertainability, the Appellate Court concludes the trial court's
decision rested on improper criteria or erroneous legal assumptions
and must be reversed. The Appellate Court must remand to the trial
court to determine whether the evidence presented by the Plaintiffs
demonstrates the categories in their proposed class definition
actually exist in Donaghy's records, and make the ultimate
identification of class members possible when that identification
becomes necessary. If the trial court determines the proposed
class as defined in the Plaintiffs' motion for class certification
is ascertainable under Noel, it must then analyze the other
elements required for class certification, and determine whether
the Plaintiffs have demonstrated their action is appropriate for
class treatment.
In light of Noel's narrow construction of the ascertainability
requirement, the concern about the disconnect between the class
definition proposed in the motion for class certification and the
theories of liability set out in the second amended complaint and
expounded on in the expert reports submitted in support of the
motion would be better addressed in connection with other elements
of the class certification analysis.
In considering the element of predominant questions of law or fact,
for example, the trial court must examine the allegations of the
pleadings to determine the issues that must be litigated, then
consider whether the pleadings and the evidence submitted
demonstrate that the legal and factual issues common to the
proposed class, as it is now defined by the Plaintiffs,
predominate. It must determine whether the issues presented are
such that their resolution in a single class proceeding would be
both desirable and feasible, that is, whether the issues which may
be jointly tried, when compared with those requiring separate
adjudication, are so numerous or substantial that the maintenance
of a class action would be advantageous to the judicial process and
to the litigants.
The trial court must also consider the other elements of the class
certification question -- whether, in light of the pleadings,
declarations, and expert reports, the claims of the class
representatives are typical of those of the proposed class, the
class representatives can adequately represent the interests of the
proposed class as a whole, and the proposed class action would be
manageable and superior to other methods of proceeding.
In light of the foregoing, the Appellate Court reversed the order
denying the Plaintiffs' motion for class certification. The matter
is remanded to the trial court for a redetermination of that
motion, in light of Noel and the Opinion, based on an analysis of
all the elements required for class certification. The Plaintiffs
are entitled to their costs on appeal.
A full-text copy of the Appellate Court's May 29, 2020 Opinion is
available at https://is.gd/VrYBvC from Leagle.com.
Hulett Harper Stewart, Dennis Stewart ; Gustafson Gluek, Dennis
Stewart, Daniel C. Hedlund, Michelle J. Looby, Joshua J. Rissman ;
Coleman & Horowitt, Darryl J. Horowitt, Sherrie M. Flynn ; Freedman
Boyd Hollander Goldberg Urias & Ward, Joseph Goldberg, Michael
Goldberg, John W. Boyd, Nicholas T. Hart and Frank T. Davis, Jr.,
for Plaintiffs and Appellants.
Wanger Jones Helsley, Oliver W. Wanger -- owanger@wjhattorneys.com
-- Patrick D. Toole -- ptoole@wjhattorneys.com; Cadwalader,
Wickersham & Taft, Peter E. Moll and Brian D. Wallach for Defendant
and Respondent Anheuser-Busch, LLC.
Chielpegian Cobb -- lee@chielpegian.com -- and Mark E. Chielpegian
-- mark@chielpegian.com -- for Defendant and Respondent Donaghy
Sales, LLC.
APEX SYSTEMS: Not Compelled to Reply to Doc. Requests in Ratcliffe
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In the case, BERNICE RATCLIFFE, Plaintiff, v. APEX SYSTEMS, LLC,
Defendants, Case No. 19-cv-1688-WQH-MDD (S.D. Cal.), Magistrate
Judge Mitchell D. Dembin of the U.S. District Court for the
Southern District of California denied the Plaintiff's motion to
compel further responses to certain Requests for Production of
documents served upon the Defendant.
The case is a putative class action in which the Plaintiff alleges
violations of the California Labor Code. The First Amended
Complaint, filed on Jan. 14, 2020, alleges eight causes of action:
unpaid overtime; unpaid meal period premiums; unpaid rest period
premiums; unpaid minimum wages; final wages not timely paid;
non-compliant wage statements; unreimbursed business expenses; and
unfair business practices.
Defendant Apex Systems LLC is in the business of placing contract
employees at various businesses. The Plaintiff was an employee
placed by the Defendant and paid by it on an hourly basis. The
Plaintiff proposes a class consisting of all current and former
California-based hourly-paid employees of the Defendant within the
State of California at any time during the period from four years
preceding the filing of the Complaint to final judgment.
Before the Court is the Joint Motion of the parties for
determination of a discovery dispute. The Joint Motion presents
the Plaintiff's motion to compel further responses to certain
Requests for Production of documents served upon the Defendant.
At the outset, Judge Dembin holds that the statement of
"Preliminary Matters" supplied by the counsel for the Plaintiff is
offensive to the Court. Disparaging the opposing counsel is always
inappropriate. Future outbursts will be met with sanctions.
In presenting the matter to the Court, the Plaintiff grouped the
requests and the Defendant responded in kind.
According to the Plaintiff, the class data includes Requests for
Production ("RFP") 8-12 and 26 seeking time sheets, payroll data,
meal period waivers and the like for the entire putative class.
The Defendant asserts that it has produced the requested
information for the Plaintiff personally, but objects to the
production of the information on a class-wide basis.
The Judge holds that it is curious, that having received the
requested information regarding the Plaintiff's individual claims,
Plaintiff offers nothing to suggest that those records substantiate
her claims, much less the class claims. If these records support
her claim, the Judge likely would order production of a sampling of
the records of other employees to see if the issues presented in
the Plaintiff's records are replicated in the records of others.
The Plaintiff can only represent other "similarly situated"
employees. Without supporting her own allegations from the records
provided, Plaintiff has failed to demonstrate that she is entitled
to the records of others. Regarding these RFP's, the Plaintiff's
motion to compel is denied for failing to meet the Mantolete v.
Bolger test.
The Job Titles and Work Duties category, according to the
Plaintiff, refers to RFPs 21 and 22 seeking job descriptions, work
duties, and job titles for the putative class members. Plaintiff
fails to present any argument regarding the relevance of these
documents to her class allegations. Her proposed class is defined
as all hourly employees and does not assert claims based on job
titles, descriptions or duties. Plaintiff's motion to compel
production of these documents is denied for lack of a showing of
relevance to any claim or defense and for failing to meet the
Mandolete test, the Court opines.
The Worker Classification category, according to the Plaintiff,
refers to RFPs 23, 24, 27 and 28. The requests seek documents
reflecting the classification of workers as exempt or non-exempt
and questionnaires or surveys regarding hours worked or activities
performed. The Judge finds that the Plaintiff again fails to
provide any statement of relevance. She has not alleged
mis-classification in her First Amended Complaint. Plaintiff's
motion to compel production of these documents is denied for lack
of relevance to any claim or defense, the Court opines.
The Defendant's Policies category, according to the Plaintiff,
refers to RFPs 13-20 and 25 and requests policies applicable to the
putative class. For clarity, the category includes: RFP 13
requesting documents reflecting Defendant's policies regarding rest
breaks; RFP 14 asking for the same regarding meal breaks; RFP 15
asking for policies regarding overtime; RFP 16 pertaining to
off-the-clock time; RFP 17 relating to payment of wages including
timing of payment during employment and upon termination, rates of
pay and categories of wages; RFP 18 pertaining to worker
classification; RFP 19 relating to itemized wage statements; RFP 20
pertaining to time-keeping; and RFP 25 relating to methods for
determining hours worked.
The Defendant asserts that it has produced all policies pertaining
to the Plaintiff while she was employed by it. While there may be
some variations for employees placed at different businesses, it
asserts that the Plaintiff has provided no basis for it to conduct
a search, employee by employee for those differing policies. To do
so, they say, would be unduly burdensome.
The Plaintiff does not offer any argument that the policies that it
has received from Defendant support any of her causes of action.
The Judge finds that the Plaintiff has failed to present
information sufficient to satisfy the Mandolete test and denied the
motion to compel regarding these RFPs.
A full-text copy of the District Court's May 26, 2020 Order is
available at https://is.gd/rkEPKa from Leagle.com.
BANNER HEALTH: Ariz. S.C. Vacates App. Ct. Ruling in Ansley Suit
----------------------------------------------------------------
In the case captioned WALTER ANSLEY, ET AL.,
Plaintiffs/Appellees/Cross-Appellants, v. BANNER HEALTH NETWORK, ET
AL., Defendants/Appellants/Cross-Appellees, Case No. CV-19-0077-PR,
the Supreme Court of Arizona issued an order vacating a court of
appeals' opinion and affirming a trial court's judgment enjoining
the application of lien statutes to allow hospitals to recover
costs of medical care for patients beyond the amounts provided by
Medicaid.
Plaintiffs are patients who were treated at defendant hospitals
under the Arizona Health Care Cost Containment System (AHCCCS),
which is the state's contract provider for the federal Medicaid
program and negotiates reimbursement rates with hospitals. The
hospitals recorded liens against the third-party tortfeasors who
caused the patients' injuries to recover the remainder of their
customary fees beyond Medicaid reimbursement. Arizona Revised
Statutes Section 33-931(A) allows medical providers to secure "a
lien for the care and treatment . . . of an injured person" in an
amount equal to their "customary charges for care." Section
36-2903.01(G)(4) provides that a "hospital may collect any unpaid
portion of its bill from other third-party payors."
The patients filed this class action challenging the liens,
contending that the authorizing statutes violate federal Medicaid
law, specifically 42 U.S.C. Section 1396a(a)(25)(C) and 42 C.F.R.
Section 447.15.
Some of the patients settled with the hospitals, agreeing to pay
negotiated amounts in exchange for the hospitals releasing their
liens and allowing the patients to receive their full personal
injury awards. The settling patients then sued to set aside the
agreements, arguing that Arizona's lien statutes are preempted by
federal law and thus unenforceable.
The non-settling class members continued to challenge the lien
statutes and moved for summary judgment in the trial court. The
trial court enjoined the hospitals from "filing or asserting any
lien or claim against a patient's personal injury recovery, after
having received any payment from AHCCCS for the same patient's
care." The court rejected the patients' third-party beneficiary
argument, but ruled that A.R.S. Section 36-2903.01(G)(4) is
preempted by federal law. The court awarded attorney fees to the
patients under the private attorney general doctrine.
The court of appeals affirmed but applied different reasoning. The
court first concluded that Sections 33-931(A) and 36-2903.01(G)(4)
are preempted and "invalid to the extent they allow a hospital to
impose a lien on a patient's tort recovery for the balance between
what the hospital accepted from AHCCCS for treating the patient and
what it might have charged another patient." The appeals court then
held that the patients were not precluded from asserting a private
right of action under the Medicaid Act by Armstrong v. Exceptional
Child Center, Inc., 575 U.S. 320, 135 S.Ct. 1378, 191 L.Ed.2d 471
(2015). Additionally, the appeals court determined that the
patients could raise the preemption argument as third-party
beneficiaries for breach of the contract between AHCCCS and the
hospitals. The appeals court affirmed most of the attorney fees
awarded by the trial court and granted attorney fees the patients
incurred in the court of appeals, but predicated the awards not on
the private attorney general doctrine, which it did not reach, but
on A.R.S. Section 12-341.01(A), which authorizes a fee award for
the successful party in a contract action.
The Supreme Court of Arizona granted the hospitals' petition for
review because whether the lien statutes are preempted for balance
billing purposes is a recurring issue of statewide concern. The
Supreme Court concludes that a private right of action exists under
Section 1396a(a)(25)(C) for patients to seek equitable relief
precluding the application of state lien statutes. The S.C. notes
that notwithstanding Armstrong's holding that Section 30(A) of the
Medicaid Act does not furnish such a right, other courts have
concluded that certain provisions of the Act do provide private
rights of action.
The Supreme Court briefly address two alternative bases for relief
cited by the patients. First, the patients seek relief as
third-party beneficiaries of the contract between AHCCCS and the
hospitals, which they contend prohibits balance billing by
incorporating federal law. The court of appeals held that "the
Hospitals breached a duty owed to the Patients under the PPAs when
they imposed the liens at issue here because those liens were
invalid under federal law."
Whether or not the patients are third-party beneficiaries under the
contract, the hospitals did not breach the contract because a
promise to comply with the law is not the same as a promise to
correctly forecast future court decisions on preemption, which had
not yet occurred when the contracts here were signed, rules the
Supreme Court. Moreover, the Supreme Court has held that an action
to enforce a contract that incorporates federal statutory
obligations cannot substitute for a private right of action where
it "is in essence a suit to enforce the statute itself."
Accordingly, it rejects the court of appeals' holding that the
patients could sue to enforce the contract between AHCCCS and the
hospitals against the liens.
The patients also argue that the Declaratory Judgment Act, A.R.S.
Section 12-1831, provides a cause of action to challenge the lien
statutes. The hospitals contend that the patients failed to make
this argument in the courts below and therefore waived it, and
indeed the court of appeals did not separately address this issue.
Regardless, although the Act provides a procedural mechanism to
mount a preemption challenge, it cannot create a private right of
action to do so, rules the Supreme Court. Only Congress may do
that. Declaratory relief is available and applicable here because
Congress created an enforceable private right, but the Act does not
independently create the cause of action.
"We therefore conclude that the lien statutes, A.R.S. [Sections]
33-931(A) and 36-2903.01(G)(4), are unconstitutional as applied,"
Supreme Court Justice Bolick, wrote in the order dated March 9,
2020, a full-text copy of which is available at
https://tinyurl.com/wnefwoz from Leagle.com.
Moreover, the Supreme Court concludes that the trial court did not
abuse its discretion by awarding fees to the patients under the
private attorney general doctrine, and it exercise its discretion
to award attorney fees the patients incurred in the Supreme Court
on that same basis. Although the court of appeals ordered attorney
fees under a different, unsustainable basis, the Supreme Court
affirms those fees under the private attorney general doctrine.
Geoffrey M. Trachtenberg - gt@LTinjurylaw.com - Justin Henry ,
Levenbaum Trachtenberg, P.L.C., 362 N 3rd Ave, Phoenix, AZ,
85003-1504; B. Lance Entrekin (argued), The Entrekin Law Firm, 3101
North Central Avenue, Suite 740, Phoenix, AZ, 85012, Attorneys for
Walter Ansley, et al.
Richard B. Burnham - rburnham@gblaw.com - Cameron C. Artigue -
cartigue@gblaw.com - (argued), Christopher L. Hering -
chering@gblaw.com - Gammage & Burnham, P.L.C., Phoenix, Attorneys
for Banner Health Network, et al.
Stanley G. Feldman , Miller, Pitt, Feldman & McAnally, P.C., 1
South Church Avenue Suite 900, Tucson, AZ 85701; Lincoln Combs ,
Gallagher & Kennedy, P.A., 2575 E Camelback Rd Phoenix, AZ 85016;
David L. Abney - dha@davidabneylaw.com - Ahwatukee Legal Office,
P.C., Phoenix, Attorneys for Amicus Curiae Arizona Association for
Justice/Arizona Trial Lawyers Association
BAYER: Grand Rapids Workers' Fund Hits Share Drop Over Merger Deal
------------------------------------------------------------------
City of Grand Rapids General Retirement System and City of Grand
Rapids Police & Fire Retirement System, on behalf of themselves and
all others similarly situated, Plaintiffs, v. Bayer
Aktiengesellschaft, Werner Baumann, Werner Wenning, Liam Condon,
Johannes Dietsch and Wolfgang Nickl, Defendants, Case No.
20-cv-04737 (N.D. Cal., July 15, 2020), seeks to recover
compensable damages caused by violations of federal securities
laws.
Bayer is a multinational pharmaceutical and life science company.
On June 7, 2018, Bayer completed its all-cash acquisition of
Monsanto Company for $63 billion.
Monsanto's flagship weed-killer, "Roundup" is a widely-used weed
killer. However, its active ingredient, glyphosate, was long
suspected as a toxic chemical that caused cancer, including
non-Hodgkin's lymphoma. By June 2018, when Bayer finally
consummated the acquisition of Monsanto, thousands of personal
injury lawsuits related to Roundup exposure been filed against
Monsanto and most cases survived motions to dismiss, obtained
damaging discovery and fended off challenges to expert testimony
and pretrial motions.
On this news, the price of Bayer American Depository Receipts (ADR)
declined from $22.00 per ADR on August 2018 to $17.85 per ADR on
March 19, 2019.
Plaintiffs are public pension funds that provide retirement and
other benefits to active and retired public employees, police
officers, and firefighters in the City of Grand Rapids, Michigan.
They purchased Bayer ADRs at artificially inflated prices and
suffered damages as a result of the violations of the federal
securities laws. [BN]
Plaintiff is represented by:
Jonathan D. Uslaner, Esq.
BERNSTEIN LITOWITZ BERGER & GROSSMANN LLP
2121 Avenue of the Stars, Suite 2575
Los Angeles, CA 90067
Tel: (310) 819-3470
Email: jonathanu@blbglaw.com
- and -
Hannah Ross, Esq.
Avi Josefson, Esq.
BERNSTEIN LITOWITZ BERGER & GROSSMANN LLP
1251 Avenue of the Americas
New York, NY 10020
Tel: (212) 554-1400
Fax: (212) 554-1444
Email: hannah@blbglaw.com
avi@blbglaw.com
BEL-AIR BAY: Fails to Pay Minimum Wages, Tizekker Labor Suit Says
-----------------------------------------------------------------
JILL TIZEKKER, on Behalf of the State of California and Aggrieved
Employees v. BEL-AIR BAY CLUB LTD., and DOES 1-100 inclusive, Case
No. 20SMCV01006 (Cal. Super., Los Angeles Cty., July 30, 2020), is
brought under the Labor Code Private Attorneys General Act of 2004
to challenge the Defendant's policies and practices of failing to
compensate for all hours worked, to pay all minimum wages owed, and
to pay all tip wages owed from service charge gratuity payments.
The Plaintiff worked at the Bel-Air Club as a non-exempt bartender
from September 2016 to the present. Ms Tizekker is paid at an
hourly rate of $20. On average, she works 6 hours per shift for
banquet events, on average about once per month.
The Defendant operates the Bel-Air Bay Club in Pacific Palisades,
California. The Defendant employs dozens of hourly non-exempt
workers similarly situated to the Plaintiff at the Bel-Air
Club.[BN]
The Plaintiff is represented by:
Carolyn Hunt Cottrell, Esq.
David C. Leimbach, Esq.
Kristabel Sandoval, Esq.
SCHNEIDER WALLACE COTTRELL KONECKY LLP
2000 Powell Street, Suite 1400
Emeryville, CA 94608
Telephone: (415) 421-7100
Facsimile: (415) 421-7105
E-mail: ccottrell@schneiderwallace.com
dleimbach@schneiderwallace.com
ksandoval@schneiderwallace.com
BERGHOFF INT'L: 5th Circuit Upholds Dismissal of Perry FLSA Suit
----------------------------------------------------------------
In the case, DEANA PERRY, Individually and On Behalf of All Others
Similarly Situated, Plaintiff-Appellant, v. BERGHOFF INTERNATIONAL,
INCORPORATED, Defendant-Appellee, Case No. 19-20423 (5th Cir.), the
U.S. Court of Appeals for the Fifth Circuit affirmed the district
court's judgment dismissing Perry's suit on grounds of forum non
conveniens.
Perry filed the lawsuit against BergHOFF alleging violations of the
Fair Labor Standards Act ("FLSA"). BergHOFF is a Florida
corporation that manufactures and distributes kitchen-related
products. It hires sales agents to help sell its products in
various states. Perry worked as a sales agent for BergHOFF from
April to October 2018. After her employment with the company
ended, Perry filed suit against BergHOFF alleging violations of the
FLSA. Although her suit was never certified as a class action,
Perry obtained the written consent of several other sales agents to
join as plaintiffs.
In response, BergHOFF moved to dismiss on grounds of forum non
conveniens or alternatively, to transfer the suit to the U.S.
District Court for the Middle District of Florida pursuant to 28
U.S.C. Section 1404(a). In its motion to dismiss, BergHOFF cited
to the forum selection clause in Perry's contract that stated that
any dispute between Perry and BergHOFF arising under the Agreement
will be submitted in accordance with the laws of the State of
Florida and that any litigation will take place in New Port Richey,
Pasco County, Florida.
The district court granted BergHOFF's motion concluding that venue
of the lawsuit is required to be in the state courts of Pasco
County, Florida. It dismissed the suit without prejudice so that
it might be re-filed in the appropriate state court in Pasco
County, Florida, if Plaintiff chooses to do so. Perry filed the
appeal arguing primarily that she should not be bound by the forum
selection clause because her claims against BergHOFF arise under
the FLSA, not her employment contract.
In its memorandum opinion on remand, the district court stated that
it had determined that the language of the forum selection clause
was mandatory, not permissive. It then turned to 28 U.S.C. Section
1404(a) and concluded that the parties had contractually consented
to venue in Pasco County, Florida -- specifically, a Florida state
circuit or county court. The district court noted that the parties
had bargained and agreed on the venue, and therefore, were bound by
their bargain.
Additionally, the district court observed that the convenience of
the parties and witnesses was inconsequential because the
Plaintiffs sought to establish a FLSA class claim involving
numerous Plaintiffs throughout the country. It concluded that
because it was not authorized to transfer the case to another
federal court, and because the parties had not consented to a
federal forum at the time of the motion, it has no alternative but
to dismiss the case.
The Fifth Circuit agrees. It review of the record, the parties'
briefs, and the analysis of the district court's memorandum opinion
on remand leads it to conclude that the district court was correct
in determining that the forum selection clause here was mandatory
and enforceable between the parties. Accordingly, the Fifth
Circuit affirmed the district court's judgment for the reasons
stated therein. Moreover, for the reasons stated in its previous
opinion, the Fifth Circuit continued to reject Perry's argument
that her claims arise under the FLSA and not her employment
contract.
A full-text copy of the Fifth Circuit's May 26, 2020 Order is
available at https://is.gd/dnTuyf from Leagle.com.
BIOGEN INC: Ex-workers Sue Over Pension Fund Mismanagement
----------------------------------------------------------
David Covington, Tansy Wilkerson and Daisy Santiago, individually
and on behalf of all others similarly situated, Plaintiffs, v.
Biogen Inc., Board of Directors of Biogen Inc., The Retirement
Committee and John Does 1-30, Defendants, Case No. 20-cv-11325 (D.
Mass., July 14, 2020), seeks equitable and injunctive relief for
breach of the fiduciary duties of prudence and loyalty and for
violation of Sections 409 and 502 of the Employee Retirement Income
Security Act of 1974 (ERISA).
Biogen is a global biopharmaceutical company based in Cambridge,
Massachusetts. Its Retirement Committee managed the Biogen 401(k)
Savings Plan. Plaintiffs are former employees of Biogen who are
participants of the defined contribution retirement plan. They
allege that Defendants, acting as "fiduciaries" of their Plan,
failed to review the Plan's investment portfolio and maintained
certain funds in the Plan despite the availability of identical or
similar investment options with lower costs and/or better
performance histories and failed to utilize the lowest cost share
class for many of the mutual funds within the Plan, and failed to
consider available collective trusts as alternatives to the mutual
funds in the Plan, despite their lower fees. [BN]
Fuentes is represented by:
Kimberly M. Saillant, Esq.
BROOKS & DERENSIS, P.C.
111 Devonshire Street, Suite 800
Boston, MA 02109
Phone: (857) 259-5200
Email: ksaillant@bdboston.com
- and -
Donald R. Reavey, Esq.
CAPOZZI ADLER, P.C.
2933 North Front Street
Harrisburg, PA 17110
Tel: (717) 233-4101
Fax: (717) 233-4103
Email: donr@capozziadler.com
- and -
Mark K. Gyandoh, Esq.
CAPOZZI ADLER, P.C.
312 Old Lancaster Road
Merion Station, PA 19066
Tel: (610) 890-0200
Fax: (717) 233-4103
Email: markg@capozziadler.com
BMW OF NORTH AMERICA: Court Denies Certification of Class in Afzal
------------------------------------------------------------------
In the case, DAVID AFZAL, et. al., Plaintiffs, v. BMW OF NORTH
AMERICA, LLC., et al., Defendants, Civil Action No. 15-8009 (D.
N.J.), Judge Madeline Cox Arleo of the U.S. District Court for the
District of New Jersey denied without prejudice the Plaintiffs'
Motion for Class Certification pursuant to Federal Rule of Civil
Procedure 23.
The case concerns whether BMW defectively designed a car's engine
so that a component wears out too quickly and failed to disclose
that defect to purchasers. The Plaintiffs claim that BMW designed
the S65 engine in its 2008-2013 M3 vehicles with insufficient space
(also known as clearance) between the rod and the metal component
between the rod and the casing, known as the "bearing." As the
bearings wear out, small pieces of metal debris circulate though
the engine via contaminated engine oil, damaging other components,
and can cause catastrophic engine failure, including while the
vehicle is in operation. The Plaintiffs contend BMW knew of the
defect and failed to disclose it to Class Vehicle purchasers.
The Plaintiffs filed the action on Nov. 10, 2015. BMW moved to
dismiss several of the Plaintiffs' original claims for failure to
state a claim, and on Oct. 17, 2016, the Court granted BMW's motion
in part, dismissing the Plaintiffs' breach of implied warranty,
Song-Beverly Act, Consumer Legal Remedies Act, False Advertising
Law, Unfair Competition Law and common law fraud claims, without
prejudice.
The Plaintiffs filed the operative Second Amended Complaint (SAC)
on Dec. 6, 2016, asserting 11 causes of action, all under
California law. They claim that BMW's defective design of the rod
bearings and failure to disclose this defect to purchasers gives
rise to claims under: (1) the Consumer Legal Remedies Act ("CLRA");
(2) the Unfair Competition Law ("UCL") for a fraudulent business
practice; (3) violation of the UCL for an unlawful business
practice; (4) violation of the UCL for an unfair business practice;
(5) violation of the False Advertising Law ("FAL"); (6) breach of
express warranty; (7) breach of the implied warranty of
merchantability and fitness for purpose, on behalf of Dechartivong
only; (8) breach of a written warranty under the Magnuson-Moss
Warranty Act ("MMWA"); (9) violation of the Song-Beverly Act, on
behalf of Dechartivong only,; (10) breach of the implied covenant
of good faith and fair dealing; and (11) common law fraud.
BMW moved to dismiss the SAC. The Court denied that motion on July
27, 2017. BMW answered the SAC in October 2017 and after taking
discovery, the Plaintiffs filed the Motion for Class Certification
in June 2019. Two Plaintiffs, both California residents who
allegedly suffered premature rod bearing wear, bring the action on
behalf of themselves and seek to represent two classes.
The Plaintiffs seek certification of two classes, a "Dealership
Class" and a "Warranty Class."
The Dealership Class is defined as: All persons who after Nov. 12,
2011, purchased a model year 2008 to 2013 BMW M3 in California from
an authorized BMW dealership, and who resided in California at the
time of that purchase, and who as of the date of the Court's
Certification Order, either (i) Currently owns a Class Vehicle with
120,000 miles or less; or (ii) Currently or formerly owned a Class
Vehicle and, when the Class Vehicle had 120,000 miles or less,
incurred out-of-pocket costs to replace the connecting rod bearings
in the Class Vehicle.
The Plaintiffs seek to certify the class under Rule 23(b)(3), or
alternatively as a liability only class, for their California
claims under: (1) the CLRA; (2) the UCL for "fraudulent business
practices", (3) "unlawful business practice", and (4) "unfair
business practice"; (5) the FAL; and (6) for breach of implied
warranty under the Song-Beverly Act.
The "Warranty Class" is defined as: All persons who after Nov. 12,
2011, purchased a model year 2008 to 2013 BMW M3 that was within
the temporal or mileage limits of BMW's New Vehicle Limited
Warranty (48 months/50,000 miles), and who resided in California at
the time of that purchase.
The Plaintiffs seek certification of the Warranty Class as a
liability only class for their claims for breach of: (1) express
warranty; (2) express warranty under the MMWA; and (3) the implied
covenant of good faith and fair dealing. Each class excludes
Defendants, their affiliates, employees, officers and directors,
persons or entities that purchased Class Vehicles for resale or
retail, the parties' attorneys, and any judges assigned to the
case.
Judge Arleo holds that as the Plaintiffs have failed to demonstrate
that the Dealership Class is sufficiently numerous, or that the
named Plaintiffs' claims are typical of the Warranty Class, they
have failed to demonstrate that the proposed classes and their
representatives meet the requirements of Rule 23(a). Similarly,
the Plaintiffs have failed to demonstrate that the Dealership Class
is ascertainable, the Court opines.
For these reasons, the Motion for Class Certification is therefore
denied without prejudice, Judge Arleo rules. To the extent the
Plaintiffs believe they can cure the deficiencies identified in the
Opinion, they may do so on a renewed motion for class
certification.
A full-text copy of the District Court's May 29, 2020 Opinion is
available at https://is.gd/Wz1vSK from Leagle.com.
BRADLEY UNIVERSITY: Jane Doe Seeks Tuition Fee Refund
-----------------------------------------------------
Jane Doe, individually and on behalf of all those similarly
situated Plaintiff, v. Bradley University, Defendant, Case No.
20-cv-01264 (C.D. Ill., July 14, 2020), seeks disgorgement of all
amounts wrongfully obtained for tuition, fees, on-campus housing,
and meals, injunctive relief including enjoining Bradley University
from retaining the pro-rated, unused monies paid for tuition, fees,
on-campus housing and meals, reasonable attorney's fees, costs and
expenses, prejudgment and post-judgment interest on any amounts
awarded and such other and further relief as may be just and
proper, refunds of all tuition fees paid on a pro-rata basis,
together with other damages resulting from breach of contract and
unjust enrichment.
Bradley University operates a higher learning campus in Peoria,
Illinois where Jane Doe was currently enrolled for the Fall 2019
semester where she has paid substantial tuition. Bradley decided to
close campus, constructively evict students, and transition all
classes to an online/remote format as a result of the Novel
Coronavirus Disease. Doe claims to be deprived the benefits of
in-person instruction, access to campus facilities, student
activities and other benefits and services in exchange for which
they had already paid fees and tuition. Bradley refused to provide
reimbursement for the tuition, fees and other costs. [BN]
Plaintiff is represented by:
Matthew T. Peterson, Esq.
Janet R. Varnell, Esq.
VARNELL & WARWICK, P.A.
1101 E. Cumberland Ave., Ste. 201H, #105
Tampa, FL 33602
Tel: (352) 753-8600
Fax: (352) 504-3301
Email: mpeterson@varnellandwarwick.com
jvarnell@varnellandwarwick.com
awallace@varnellandwarwick.com
BURGER KING: Judge Tosses Lawsuit Over "Impossible Whopper"
-----------------------------------------------------------
Jonathan Stempel, writing for Reuters, reports that a federal judge
has dismissed a lawsuit accusing Burger King of deceiving vegan,
vegetarian and other customers into thinking it cooked the
plant-based patties for its "Impossible Whopper" on different
grills than those used to cook beef and chicken.
In a decision on July 20, U.S. District Judge Raag Singhal in Fort
Lauderdale, Florida said the seven plaintiffs failed to show that
reasonable consumers were deceived into paying higher prices
because of Burger King's actual cooking methods.
He said the plaintiffs did not ask about Burger King's cooking
method or request an alternative to satisfy their dietary
requirements, and that the company's advertising did not promise
cooking on a different surface.
"Burger King promised a non-meat patty and delivered," Singhal
wrote. The judge also found the plaintiffs' claims "too
individualized" to justify a class action.
Lawyers for the plaintiffs did not immediately respond on July 21
to requests for comment. The plaintiffs can amend most of their
claims if they wish.
Burger King is a unit of Toronto-based Restaurant Brands
International Inc.
Impossible Foods Inc., which helped create the Impossible Whopper,
has said it was designed for meat eaters who want to consume less
animal protein, not for vegans or vegetarians.
The case is Williams v. Burger King Corp., U.S. District Court,
Southern District of Florida, No. 19-24755. [GN]
BURROWS PAPER: Ransom Sues Over Unpaid Overtime for Packers
-----------------------------------------------------------
RYAN RANSOM, individually and on behalf of all others similarly
situated, Plaintiff v. BURROWS PAPER CORPORATION and NOVOLEX
HOLDINGS, LLC, Defendants, Case No. 2:20-cv-03824-MHW-CMV (S.D.
Ohio, July 30, 2020) is a class action against the Defendants for
violations of the Fair Labor Standards Act, the Ohio Minimum Fair
Wage Standards Act, and the Ohio Prompt Pay Act.
According to the complaint, the Defendants failed to compensate the
Plaintiff and all other similarly situated laborers for all
overtime hours worked as a result of: (1) the pre-shift of-the-work
donning of required personal protective equipment (PPE) on the
Defendants' premises; (2) attending off-the-clock pre-shift
meetings; (3) rules against clocking in more than a few minutes
prior to the scheduled start of the shift with rounding; (4)
improper meal deductions as a result of meal breaks bookended by
work; and (5) work performed after the scheduled end of employees'
shifts, including off-the-clock doffing of PPE.
The Plaintiff was employed by the Defendants as a packer/laborer at
a facility located at 101 Converse Drive, Mt. Vernon, Ohio from
early October, 2019 until his departure in April, 2020.
Burrows Paper Corporation is a manufacturer of paper-based products
with facilities located at 2000 Commerce Center, Drive, Franklin,
Ohio and 101 Converse Drive, Mt. Vernon, Ohio.
Novolex Holdings, LLC is a provider of packaging services to
retail, grocery, food service, hospitality, institutional, and
industrial markets. [BN]
The Plaintiff is represented by:
Matthew J.P. Coffman, Esq.
COFFMAN LEGAL, LLC
1550 Old Henderson Road, Suite 126
Columbus, OH 43220
Telephone: (614) 949-1181
Facsimile: (614) 386-9964
E-mail: mcoffman@mcoffmanlegal.com
- and –
Daniel I. Bryant, Esq.
BRYANT LEGAL, LLC
1550 Old Henderson Road, Suite 126
Columbus, OH 43220
Telephone: (614) 704-0546
Facsimile: (614) 573-9826
E-mail: dbryant@bryantlegalllc.com
CAMELBAK PRODUCTS: Court Dismisses John Keller Class Suit
---------------------------------------------------------
In the case, JOHN D. KELLER, Plaintiff, v. CAMELBAK PRODUCTS, LLC,
ET AL., Defendants, Case No. 4:20-cv-0232-YGR (N.D. Cal.), Judge
Yvonne Gonzales Rogers of the U.S. District Court for the Northern
District of California granted Defendants CamelBak Products, LLC
and CamelBak International, LLC's motion to dismiss.
At its core, the case is Bursor & Fisher's attempt to revive Rachel
Lepkowski v. CamelBak Products, LLC et al, 4:19-cv-04598-YGR (N.D.
Cal.) dismissed by the Court only a few months ago. The changed
allegations in the pending amended complaint fare no better than
the first.
Plaintiff John Keller bring the action against CamelBak. As
Lepkowski did, Keller brings an amended class action complaint
concerning all CamelBak eddy water bottles, and alleges violations
of various consumer protection laws as to the bottles'
"spill-proof" claims. Therein, Keller alleges anecdotal statements
from the internet that some of the water bottles spilled, including
some at altitude.
Specifically, Keller asserts 10 claims including: (i) violation of
the Magnuson-Moss Warranty Act; (ii) breach of express warranty;
(iii) breach of the implied warranty of merchantability; (iv)
unjust enrichment; (v) violation of California's Legal Remedies Act
("CLRA"); (vi) violation of California's Unfair Competition Law
("UCL"); (vii) violation of California's False Advertising Law
("FAL"); (viii) negligent misrepresentation; (ix) fraud; (x)
violation of New York's General Business Law Section 349; and (x)
violation of New York's General Business Law Section 350.
The case cannot be fairly analyzed without appropriate reference to
the Lepkowski action. Having failed to assert Article III standing
in that action after CamelBak sent a replacement bottle and
unconditional $20 check to Plaintiff Lepkowski, the same attorneys
for the new Plaintiffs attempted an end-run around the prefiling
requirement.
Thus, on Dec. 12, 2019, the Court dismissed the Lepkowski action
and required that an amended complaint, if consistent with Rule 11,
be filed by Jan. 17, 2020. Thereafter, Bursor & Fisher, on behalf
of Stewart and Keller, sent a "Notice and Demand Letter" pursuant
to the Magnuson-Moss Warranty Act, the CLRA, and the UCC
corollaries, certified and dated Jan. 10, 2020 to CamelBak.
Therein, they demand that CamelBak (1) issues a mandatory recall of
CamelBak eddy Water Bottles and (2) make full restitution to all
purchasers of the CamelBak eddy of all purchase money obtained from
sales thereof. It should be noted that, unlike in other cases, the
demand letter was devoid of any support for its overarching
statement that due to a defect, CamelBak Water Bottles leak other
than the presumably accurate claim that in the case of Keller and
Stewart specifically, each experienced a water bottle that leaked.
On that same day, Jan. 10, 2020, Keller and Stewart filed the
instant action. On Jan. 13, 2020, CamelBak responded noting that
Keller and Stewart did not provide proper notice or make a proper
warranty claim, but nonetheless providing a full refund and
reminding them that replacement bottles are also readily available
at no charge, with an invitation to choose their specific
replacement water bottles. Keller does not dispute CamelBak's
recitation.
CamelBak moves to dismiss Keller's complaint under Rules 12(b)(1)
and (b)(6). Because Judge Rogers concludes that Keller lacks
standing under Rule 12(b)(1), she limits her analysis to Rule
12(b)(1), and declines to address CamelBak's remaining arguments
under Rule 12(b)(6).
As the Court found in the Lepkowski action, Keller has failed to
allege a concrete injury. At its core, Keller's argument hinges on
the notion of gamesmanship, i.e. that a plaintiff attempts to
ignore the statutory mechanisms implemented to resolve consumer
issues informally and without litigation by not giving the
defendant an opportunity to correct the defect. While
circumstances may exist rendering compliance with the notice
provision pointless, it is not one of them. Keller intentionally
sought to circumvent those procedures by filing suit immediately
upon mailing the required notice, providing no opportunity for
defendants to respond. Such gamesmanship will not be countenanced.
CamelBak made Keller unconditionally whole. Keller's preemptive
filing of the lawsuit does not convert the corrective action into
"post-suit" conduct. Accordingly, the rationale previously
articulated in the Court's prior ruling in the Lepkowski action is
and remains persuasive and applicable.
In sum, in a May 29, 2020 Order available at https://is.gd/nsk7Au
from Leagle.com, Judge Rogers granted CamelBak's motion to dismiss
Keller's first amended class action complaint. It is Bursor &
Fisher's fourth attempt at a complaint (two in the Lepkowski action
and two here). Again, in light of this analysis, the Court does
not believe that amendment to the complaint is possible. However,
in light of Keller's request, leave to amend is granted as long as
such amendment can be made consistent with Rule 11. To the extent
Keller decides to file a second amended complaint, the same must be
filed no later than June 19, 2020. Failure to do so will result in
a sua sponte dismissal with prejudice effective June 22, 2020.
Subsequently, the Court notes that the Plaintiff did not file a
second amended complaint. Accordingly, Judge Rogers entered an
order on June 26, 2020, dismissing the matter with prejudice.
CARNIVAL CORP: Passengers Slam Mismanaged COVID-19 Outbreak
-----------------------------------------------------------
Cynthia Lynn Ford, James David Arthur Ford, Carole Kealy, Kelly
Sandoval, Ruben Sandoval, Stephen Collins, Sarah Davies, Kurt
Emerald, Tracy Emerald, Larry A. Fisher, Rita Fisher, David
Gonsalves, Mary Ann Gonsalves, Tracie Ling, Brian Losie, Peggy
Losie, John Miller, Renate Miller, Kenneth Prag, Marie Rivera, Paul
Rivera, John Shaterian and Judith Shaterian on behalf of themselves
and all others similarly situated, Plaintiffs, v. Carnival
Corporation & PLC and Princess Cruise Lines Ltd., Defendants, Case
No. 20-cv-06226 (N.D. Cal., July 13, 2020), seeks injunctive
relief, statutory damages, treble damages and all other relief
resulting from negligence and gross negligence.
Plaintiffs were passengers onboard the Grand Princess cruise from
San Francisco, California on February 11, 2020, to Mexico. The
Grand Princess is jointly operated by Carnival and Princess.
Multiple passengers on the M/V Grand Princess's Mexico trip
suffered from COVID-19 symptoms while on the vessel, exposing other
passengers and crew members onboard the ship to the virus. At least
100 passengers have tested positive for COVID-19, and at least two
passengers who traveled on the said Mexico trip died after
disembarking. As a result, Plaintiffs all tested positive for
COVID-19. [BN]
Plaintiff is represented by:
Elizabeth J. Cabraser, Esq.
Jonathan D. Selbin, Esq.
LIEFF CABRASER HEIMANN & BERNSTEIN LLP
275 Battery Street, 29th Floor
San Francisco, CA 94111-3339
Tel: (415) 956-1000
Fax: (415) 956-1008
Email: ecabraser@lchb.com
jselbin@lchb.com
- and -
Mary E. Alexander, Esq.
Brendan D.S. Way, Esq.
MARY ALEXANDER & ASSOCIATES, P.C.
44 Montgomery Street, Suite 1303
San Francisco, CA 94104
Telephone: (415) 433-4440
Facsimile: (415) 433-5440
Email: malexander@maryalexanderlaw.com
bway@maryalexanderlaw.com
- and -
Gretchen M. Nelson, Esq.
Carlos F. Llinás Negret (284746)
601 So. Figueroa Street, Suite 2050
Los Angeles, CA 90017
Telephone: (213) 622-6469
Facsimile: (213) 622-6019
Email: cllinas@nflawfirm.com
gnelson@nflawfirm.com
- and -
Mark P. Chalos, Esq.
LIEFF CABRASER HEIMANN & BERNSTEIN, LLP
222 2nd Avenue South, Suite 1640
Nashville, TN 37201
Telephone: (615) 313-9000
Facsimile: (212) 313-9965
Email: mchalos@lchb.com
CARRIZO OIL: Chisum Suit Seeks Unpaid Overtime Pay
--------------------------------------------------
Don Chisum, individually and on behalf of all others similarly
situated, Plaintiff, v. Carrizo Oil & Gas, Inc., Callon Petroleum
Company and Callon Petroleum Operating Company, Defendants, Case
No. 20-cv-00051 (W.D. Tex., July 10, 2020), seeks to recover unpaid
overtime and other damages under the Fair Labor Standards Act.
Chisum worked for Carrizo and Callon as a Wellsite Consultant from
approximately April 2014 until April 2020. He claims to be paid a
day-rate basis without paid overtime for the hours he worked in
excess of 40 hours each week. [BN]
Plaintiff is represented by:
Michael A. Josephson, Esq.
Andrew W. Dunlap, Esq.
Richard M. Schreiber, Esq.
JOSEPHSON DUNLAP LAW FIRM
11 Greenway Plaza, Suite 3050
Houston, TX 77046
Tel: (713) 352-1100
Fax: (713) 352-3300
Email: mjosephson@mybackwages.com
adunlap@mybackwages.com
rschreiber@mybackwages.com
- and -
Richard J. Burch, Esq.
BRUCKNER BURCH, P.L.L.C.
8 Greenway Plaza, Suite 1500
Houston, TX 77046
Tel: (713) 877-8788
Fax: (713) 877-8065
Email: rburch@brucknerburch.com
CLEARVIEW AI: Mutnick Can't Intervene in Calderon Class Suit
------------------------------------------------------------
Judge Colleen McMahon of the U.S. District Court for the Southern
District of New York denied David Mutnick's Motion to Intervene in
the cases, MARIO CALDERON, et al., Plaintiffs, v. CLEARVIEW AI,
INC., et al., Defendants. MARIA BROCCOLINO, Plaintiff, v. CLEARVIEW
AI, INC., Defendant. JOHN MCPHERSON, Plaintiff, v. CLEARVIEW AI,
INC., et al. Defendants. SEAN BURKE, et al., Plaintiffs, v.
CLEARVIEW AI, INC. et al., Defendants. DEAN JOHN, et al.,
Plaintiffs, v. CLEARVIEW AI, INC., Defendant. SHELBY ZELONIS
ROBERSON, Plaintiff, v. CLEARVIEW AI, INC., Defendant, Case Nos. 20
civ. 1296 (CM), 20 civ. 2222 (CM), 20 civ. 3053 (CM), 20 Civ. 3104
(CM), 20 Civ. 3481 (CM), 20 Civ. 3705 (CM) (S.D. N.Y.).
Clearview is a Delaware corporation with its headquarters and
principal place of business in New York. It collects images on the
internet and organizes them into a searchable database, which can
then be searched on an online app by its licensed users. Clearview
hosts its data on servers located in New York and New Jersey.
Defendants Hoan Ton-That and Richard Schwartz are principles of
Defendant Clearview and manage technology and sales for the
company. Ton-That serves as the company's CEO. Ton-That and
Schwartz are both residents of New York.
On Jan. 18, 2020, the New York Times published an exposé on the
company Clearview, entitled "The Secretive Company That Might End
Privacy as We Know It." The article described Clearview's creation
of a facial recognition app "that could end your ability to walk
down the street anonymously."
Since that exposé, eight federal class action lawsuits have been
filed against Clearview and its two principals, Ton-That and
Schwartz ("Clearview Defendants"). All eight cases were filed
within weeks of each other. Two cases were filed in Chicago,
Illinois; one in Alexandria, Virginia; one in San Diego,
California; and the rest in the Court.
Each case arises out of Defendant Clearview's conduct in: (a)
allegedly scraping billions of facial images from the Internet; (b)
performing facial scans of those images; and (c) creating a
biometric database that allows users of the database to immediately
identify a member of the public merely by uploading a person's
image to the database.
The Virginia and San Diego cases have already been transferred to
the New York District Court, so there are now six actions pending
in the New York district. There is a motion to transfer the
Chicago cases to the New York Court pending in the Northern
District of Illinois. The Defendants have not filed an answer in
any case and no formal discovery has taken place.
Pursuant to Federal Rule of Civil Procedure 24, David Mutnick --
who filed the first federal class action against Clearview, in the
Northern District of Illinois -- moves to: (a) intervene in the six
class action lawsuits that are presently pending before the Court;
and (b) to dismiss those cases pursuant to the first-filed rule or,
alternatively, stay the cases or have them all transferred to the
Northern District of Illinois where Mutnick first filed his case,
Mutnick v. Clearview AI, Inc., 1:20-cv-512-SC (N.D. Ill.).
The cases at issue are: (i) Calderon v. Clearview AI, Inc.,
1:20-cv-1296-CM; (ii) Broccolino v. Clearview AI, Inc.,
1:20-cv-2222-CM; (iii) McPherson v. Clearview AI, Inc.,
1:20-cv-3053-CM; (iv) Burke v. Clearview AI, Inc., 1:20-cv-3104-CM;
(v) John v. Clearview AI, Inc., 1:20-cv-3481-CM; and (vi) Roberson
v. Clearview AI, Inc., 1:20-cv-3705-CM.
Mutnick filed his lawsuit on Jan. 22, 2020, alleging violations of
the Illinois Biometric Information Privacy Act ("BIPA"), as well as
federal constitutional claims under 42 U.S.C. Section 1983 (on the
theory that Clearview AI qualifies as a state actor). He also
asserted a claim for unjust enrichment. The claims are asserted on
behalf of a nationwide class and an Illinois subclass.
On April 8, 2020 -- three months after filing his lawsuit, and well
after other actions had been filed in other districts -- Mutnick
filed a motion for a preliminary injunction against the Clearview
Defendants in the Northern District of Illinois. The motion seeks
to preliminarily enjoin the Clearview Defendants from: (1)
violating Illinois's BIPA; and (2) possessing the biometric
identifiers and information of Illinois residents without taking
measures to ensure the security of that information. At the time
of the Memorandum Decision & Order, the motion has been fully
briefed but remains unresolved.
All these actions are brought against New York-based Defendants.
None other than Mutnick's alleges any violation of federal law. No
party (including Mutnick) has applied to the Judicial Panel on
Multi-District Litigation for an order of consolidation and
transfer to a single district for pre-trial purposes. It has been
left to the judges involved to figure out where these overlapping
lawsuits should be litigated.
Mutnick seeks to intervene in the New York Cases under Fed. R. Civ.
P. 24(a)(2), as of right, and under Rule 24(b), under the
permissive joinder standards, in order to either dismiss, stay, or
transfer the New York Cases to the Northern District of Illinois.
Judge McMahon holds that the intervention is not justified on
either mandatory or permissive grounds. First, Mutnick has not
demonstrated that he has a sufficiently direct interest in the
filed actions to justify intervention. Second, Mutnick has not
demonstrated that his hypothetical interest in the actions would be
impaired in the absence of intervention. Finally, Mutnick has not
shown that his personal interest in his claims (as opposed to his
and his lawyer's interest in controlling the litigation against
Clearview) would not be adequately represented by Plaintiffs in the
other actions. Mutnick has not established that he is entitled to
intervention as of right. Therefore, Mutnick's motion to intervene
pursuant to Rule 24(a) is denied.
The Judge also denied Mutnick's motion for leave to intervene
permissively. Though Mutnick contests that allowing him to
intervene would prejudice the Plaintiffs, the Judge, in its
discretion, finds that permissive intervention for the sole purpose
of dismissing, staying, or transferring the actions would not
further the ultimate resolution of these lawsuits. Though Mutnick
asserts that Illinois plaintiffs cannot be prejudiced by being
required to litigate in their home state, the hypothetical
"convenience" of the forum does not end the inquiry. Not all of
the New York Plaintiffs are Illinois residents. Here, there would
be little point to granting Mutnick's motion to intervene if his
reason for intervening was (as it likely would be) futile.
In sum, Judge McMahon denied Mutnick's Motion to Intervene, whether
pursuant to FRCP 24(a) or 24(b). Moreover, had the motion been
granted, the Judge would have declined to stay or transfer the six
Clearview actions pending. The Judge intends to consolidate the
cases and proceed with case management.
A full-text copy of Judge McMahon's May 29, 2020 Memorandum
Decision & Order is available at https://is.gd/rZTgJF from
Leagle.com.
COOK COUNTY, IL: Expedited Discovery in Mays Class Suit Denied
--------------------------------------------------------------
In the case, ANTHONY MAYS, individually and on behalf of a class of
similarly situated persons; and JUDIA JACKSON, as next friend of
KENNETH FOSTER, individually and on behalf of a class of similarly
situated persons, Plaintiffs-Petitioners, v. THOMAS DART,
Defendant-Respondent, Case No. 20 C 2134 (N.D. Ill.), Judge Matthew
F. Kennelly of the U.S. District Court for the Northern District of
Illinois, Eastern Division, denied (i) the Sheriff's motion to stay
the preliminary injunction pending appeal, and (ii) the Plaintiffs'
request for expedited discovery.
The Plaintiffs in the case contend that Thomas Dart, the Sheriff of
Cook County, Illinois, is violating the Fourteenth Amendment due
process rights of persons detained at the Jail by failing to
provide them with reasonably safe living conditions in the face of
the coronavirus pandemic. In their motion for a preliminary
injunction, the Plaintiffs sought wide-ranging relief. This
included mandatory social distancing of detained persons throughout
the Jail -- relief that would amount to universal single-celling
and then some; transfer of detained persons to electronic home
monitoring; and convening a three-judge court under the Prison
Litigation Reform Act to consider the release of detained persons.
They also sought measures to identify and separate medically
vulnerable detained persons and to require coronavirus testing,
cleaning of Jail facilities, and provision of personal protective
equipment.
After extensive briefing and hearings, the Court granted the
Plaintiffs' motions, but only in part. The Court entered a TRO
including certain requirements on April 9 and a preliminary
injunction with those same requirements plus one more on April 27.
On both occasions, however, the Court overruled the Plaintiffs'
requests for sweeping remedies, declining their requests to release
detainees with medical vulnerabilities, mandate full "social
distancing" throughout the jail, and convene a three-judge court to
prisoner releases.
The preliminary injunction also directed the Sheriff of Cook County
-- the Defendant in the case -- to submit a report regarding
compliance. The Sheriff did this on May 1, 2020. On May 6, 2020,
the Plaintiffs filed a response to the Sheriff's report in which
they sought expedited discovery, contending they needed it to
determine compliance with the preliminary injunction.
On May 11, the Sheriff objected and moved to strike the request for
expedited discovery. Also on May 11, the Sheriff filed a notice of
appeal from the preliminary injunction.
Eight days after that, on May 19 -- a little over three weeks after
entry of the preliminary injunction -- the Sheriff moved for a stay
pending appeal and repeated his request to strike the Plaintiffs'
proposed expedited discovery requests. At the request of the judge
assigned to the case, Judge Kennelly, acting as emergency judge,
directed the Plaintiffs to respond to the stay motion the next day
and heard argument on the Sheriff's stay motion as well as the
Plaintiffs' expedited discovery request on May 21, 2020.
Judge Kennelly concludes that the Sheriff has not shown, let along
"strongly" shown, that he is likely to succeed on appeal. The
Sheriff has not made a "strong showing" of likelihood of success.
The Plaintiffs had established a reasonable likelihood of showing
the objective unreasonableness of some of the Sheriff's actions or
inaction. The Sheriff's argument about positive results does not
account for the very real possibility that the measures ordered by
the Court at the TRO and preliminary injunction stage contributed
to those results. The Judge either found that the Plaintiffs were
unlikely to be able to show the Sheriff's actions were objectively
unreasonable, or deferred to the Sheriff's expertise and
discretion, or both. Finally, the Sheriff's motion for a stay
omits any reference to what the Court did not order.
The Sheriff's argument regarding irreparable injury likewise falls
short. The Judge observes that it is difficult to see how the
Sheriff will experience "irreparable harm" if he has to comply with
the injunction by doing what he says he would do anyway. Last but
not least on the question of irreparable harm, it is noteworthy
that the Sheriff waited more than three weeks after the issuance of
the preliminary injunction before moving for a stay. This cuts
against the contention that the Sheriff has experienced, or will
experience, much harm at all, let alone harm appropriately
considered to be irreparable.
The next question is whether a stay will risk substantial injury to
other interested parties, specifically to the Plaintiff class. It
is essentially the flip side of the point just addressed. The
Sheriff did not voluntarily take all of the coronavirus-protective
measures that he cites. Some were done pursuant to court order --
either the TRO, or the preliminary injunction, or both. Staying
the injunction would permit the Sheriff to lift measures and
thereby again place the health of detained persons at serious risk.
That risk cannot be discounted based on the Sheriff's assurances
alone. Again, a number of the measures he took were instituted
only after the Court's TRO or preliminary injunction. The Judge
finds that there is at least some risk of substantial injury to
detained persons if the preliminary injunction is stayed.
On the question of the public interest, the Sheriff cites Nken v.
Holder, for the proposition that the Sheriff, as a public official,
effectively embodies the public interest. It is not quite that
simple. The Sheriff is charged with protecting not just the public
at large, but also the detained persons placed in his custody, all
or nearly all of whom have family members on the outside. Their
interests are part of the public interest. And the detained
persons' constitutional rights -- and their health and lives -- are
at stake. It is anything but clear that the Sheriff can claim the
public interest mantle entirely for himself.
For the reasons stated, Judge Kennelly concludes that the Sheriff
has not met the requirements for a stay of the preliminary
injunction. The Judge therefore denies Sheriff's motion to stay.
Finally, Judge Kennelly concludes that the expedited discovery
requests have not been properly served. Under Federal Rule of
Civil Procedure Rule 26(d), a party "may not seek discovery" before
the parties have conferred under Rule 26(f) or unless authorized by
the Rules, a stipulation, or a court order. None of that has
happened in the case. In particular, at the time the discovery had
been served, there had been no Rule 26(f) conference.
For these reasons, the Judge directs that the Sheriff need not
answer the Plaintiffs' current discovery requests. At the
conclusion of the oral argument on the present motions on May 21,
the Court directed the parties to submit a proposed scheduling
order to the assigned judge by June 2, 2020 and to conduct their
Rule 26(f) conference before that. The Plaintiffs may re-serve
their discovery requests following the Rule 26(f) conference and
may, if appropriate, move the assigned judge to permit expedited
discovery.
For the reasons stated, Judge Kennelly denied the Defendant's
motion to stay the preliminary injunction pending appeal, and
denied the Plaintiffs' motion for expedited discovery.
A full-text copy of the District Court's May 29, 2020 Memorandum
Opinion & Order is available at https://is.gd/pa5LBy from
Leagle.com.
COTE & CIEL INC: Guglielmo Claims Website to Blind-accessible
--------------------------------------------------------------
Joseph Guglielmo, individually and on behalf of all other similarly
situated visually-impaired individuals, Plaintiff, v. Cote & Ciel
Inc., Defendant, Case No. 20-cv-05364 (S.D. N.Y., July 15, 2020),
seeks preliminary and permanent injunction, compensatory, statutory
and punitive damages and fines, prejudgment and post-judgment
interest, costs and expenses of this action together with
reasonable attorneys' and expert fees and such other and further
relief under the Americans with Disabilities Act, New York State
Human Rights Law and New York City Human Rights Law.
Cote & Ciel Inc. is a backpack and bag company that owns and
operates www.coteetciel.com. It offers products and services for
online sale and general delivery to the public. Plaintiff is
legally blind and claims that said website cannot be accessed by
the visually-impaired. [BN]
Plaintiff is represented by:
David Paul Force, Esq.
STEIN SAKS, PLLC
285 Passaic Street
Hackensack, NJ 07601
Tel: (201) 282-6500 Ext. 107
Fax: (201) 282-6501
Email: dforce@steinsakslegal.com
COVELLI ENTERPRISES: $4.62MM Deal in Kis Suit Gets Final Approval
-----------------------------------------------------------------
In the case, ERIN KIS, on behalf of herself and all others
similarly situated, et al., Plaintiffs, v. COVELLI ENTERPRISES,
INC., Defendant, Case Nos. 4:18-cv-54, 4:18-cv-434 (N.D. Ohio),
Judge James S. Gwin of the U.S. District Court for the Northern
District of Ohio granted the Plaintiffs' motion for class
certification and final approval of the settlement, enhancement
awards, and attorneys' fees, costs, and expenses.
In the Fair Labor Standards Act ("FLSA") collective action, nearly
500 current and former Panera Bread assistant managers seek unpaid
overtime wages from Covelli Enterprises. On Jan. 9, 2018,
Plaintiff Kis sued Defendant Covelli Enterprises on behalf of
herself and other Panera Bread assistant managers. The Defendant
owns and operates a large number of Panera Bread franchises. In
her complaint, Plaintiff Kis alleged that the Defendant
misclassified their assistant managers as exempt from overtime
protections and wrongly failed to pay assistant managers overtime
wages.
In June 2019, the parties proposed a class action settlement. On
July 26, 2019, the Court conditionally certified the class, and
preliminarily approved the class action settlement, class counsel,
proposed notices of settlement, and settlement procedure.
The Plaintiffs subsequently moved for final certification of the
class and approval of the settlement and attorneys' fees and costs.
The named Plaintiffs also sought approval of enhancement awards.
The settlement resolves the Plaintiffs' FLSA collective action as
well as a related Ohio wage law class action. It defines the FLSA
collective as all who consented to join the collective and worked
as assistant managers for Defendant during the three years before
filing their consent. The settlement defines the class members as
all collective action members who worked in Ohio and the
Defendant's other Ohio assistant managers employed between Jan. 9,
2016 and Aug. 1, 2019.
Under the agreement, Defendant Covelli Enterprises will pay
$4,625,000 to a settlement fund. $3,725,000 of the fund is
allocated to the collective members and the remaining $900,000 is
allocated to the class members. The Collective and class members
get the funds remaining after deductions for the notice costs and
settlement administrator fees, enhancement awards, and attorney
fees, costs, and expenses. No amount of unclaimed funds in the
collective fund reverts to Covelli Enterprises, while unclaimed
class funds will revert to Covelli Enterprises. Finally, Covelli
Enterprises agrees not to object to requested service awards or
attorney's fees up to one third of the settlement fund.
Because the Plaintiffs seek certification only for settlement
purposes, there was no difficulty in managing the class. Moreover,
there are no alternative methods that could resolve these cases as
efficiently, cheaply, or uniformly. Judge Gwin certifies the class
for settlement purposes. The notices also satisfy constitutional
and Rule 23 standards.
The Court finds the settlement fair, reasonable, and adequate. The
Court finds that (i) the lack of objection further signals that
Settlement Class Representatives and Class Counsel have adequately
represented absent class members during these settlement
proceedings; (ii) the settlement gives substantial benefits to
Settlement Class Members; (iii) the Settlement offers immediate
compensation to Settlement Class Members, who would otherwise face
protracted litigation; (iv) the parties have proposed an efficient
and effective method of distributing relief; (v) the settlement was
reached after protracted negotiations, motion practice, and trial
preparation; and (vi) the recovery amount roughly tracks with each
member's potential damages.
The Plaintiffs seek enhancement awards of $12,500 for Collective
Representatives Chelsea Romano and Erin Kis, and $2,500 for Class
Representatives Saidah Farrell and Mariah Hall. The Judge finds
that while Collective Representatives have provided valuable
contribution to the litigation, their requested awards are
misaligned with the time each invested in the litigation. The
Judge instead awards each Romano and Kis $7,500, roughly $60 per
hour spent on the litigation.
The Court also finds that the service awards for the Class
Representatives appropriate, but not in the amount requested. Both
Farrell and Hall filed their class action lawsuit after learning
about Romano and Kis's collective action lawsuit. Although Farrell
and Hall have helped to secure substantial benefit to the class by
bringing their lawsuit, the Judge find that it is more appropriate
to award each Farrell and Hall $1,000.
The Plaintiffs move for attorney's fees, costs, and expenses. The
Plaintiffs claim the $4,625,000 as the total class and collective
benefit -- the aggregate settlement amount that funds the class and
collective member payments, service awards, attorney fees and
costs, and settlement administration and notice costs.
The Judge finds that the appropriate total benefit valuation is the
midpoint between the available benefit and actual benefit, or
$4,385,965.80. The Class Counsels' request for one-third of this
benefit is, nonetheless, high. According to the Ohio State Bar
Association, the average hourly rate for local counsel is $250 per
hour. Applying this local rate yields a lodestar amount of
$1,455,350. As this amount is comparable to a 30% award of the
total benefit, or $1,315,789.74, the Judge finds that the
percentage of the common fund award is reasonable.
The Plaintiffs' request $100,595.57 in costs and expenses. The
Judge will not award the $14,227.02 in computerized research
expense. The Class Counsel does not contend that passing on
computerized legal research charges to the client is standard
practice in the local legal community. The Class Counsel also
requests $2,096.40 in court filing fees. $1,440 of these fees were
for motions to appear pro hac vice. The Judge will award only $800
for the complaint filing fees.
The Class Counsel also requests $10,238.68 in "Administration Fees
(Rust)" and $20,477.36 in "Administration Costs." But the Class
Counsel also requests $30,000 for Claims Administrator Rust
Consulting's fee. These expenses appear to be for the same
purpose: securing Rust Consulting to act as the Claims
Administrator. The Judge will award the $30,000 fee for Rust
Consulting but will not award the $10,238.68 and $20,477.36 costs.
The Judge therefore awards $53,509.15 in costs and expenses and the
$30,000 Claims Administrator fee.
In sum, Judge Gwin certified the settlement class and approved the
settlement agreement. The Judge granted (i) enhancement awards of
$7,500 to each Romano and Kis and enhancement awards of $1,000 to
each Farrell and Hall; (ii) attorney's fees, costs, and expenses as
stated in the Order; and (iii) the $30,000 claims administrator
fee.
A full-text copy of the District Court's May 29, 2020 Opinion &
Order is available at https://is.gd/npSXAv from Leagle.com.
DENALI INGREDIENTS: Wright Seeks Wages, OT Pay Under FLSA & WWPCL
-----------------------------------------------------------------
CHRISTOPHER WRIGHT on behalf of himself and all others similarly
situated v. DENALI INGREDIENTS, LLC, Case No. 2:20-cv-01185 (E.D.
Wis., Aug. 3, 2020), seeks to recover unpaid wages, unpaid overtime
compensation, liquidated damages, costs, attorneys' fees,
declaratory and/or injunctive relief under the Fair Labor Standards
Act of 1938, and Wisconsin's Wage Payment and Collection Laws.
The Plaintiff alleges that the Defendant operated (and continues to
operate) an unlawful compensation system that deprived and failed
to compensate all current and former hourly-paid, non-exempt
employees for all hours worked and work performed each workweek,
including at an overtime rate of pay, by failing to compensate said
employees for daily rest breaks that lasted less than 20
consecutive minutes in duration, in violation of the FLSA and
WWPCL, and/or meal periods during which they were not completely
relieved of duty or free from work for at least 30 consecutive
minutes, in violation of the WWPCL.
The Defendant makes ingredients and flavors for the ice cream,
frozen dessert, novelties, and milk and beverage industries.[BN]
The Plaintiff is represented by:
James A. Walcheske, Esq.
Scott S. Luzi, Esq.
WALCHESKE & LUZI, LLC
15850 W. Bluemound Road, Suite 304
Brookfield, WI 53005
Telephone: (262) 780-1953
Facsimile: (262) 565-6469
E-mail: jwalcheske@walcheskeluzi.com
sluzi@walcheskeluzi.com
DIMITRIOS KOLOVOS: Sack Sues Over Unpaid Wages, Tip Skimming
------------------------------------------------------------
CHRISTIN SACK, individually and on behalf of all others similarly
situated, Plaintiff v. DIMITRIOS KOLOVOS, GERASIMOS TSOKANTAS, and
GORGIOS FAKOURAS, Defendants, Case No. 1:20-cv-09693-RBK-JS
(D.N.J., July 30, 2020) is a class action against the Defendants
for violation of the Fair Labor Standards Act and the New Jersey
State Wage and Hour Law by failing to pay the Plaintiff and all
others similarly situated tipped employees proper minimum wage for
all hours worked, failing to satisfy the notice requirements of the
tip credit provisions, and improperly taking a meal credit against
their employees' wages.
The Plaintiff was employed as a server at Metro Diner, a restaurant
owned and managed by the Defendants at Rt. 130 & Browning Rd.,
Brooklawn, New Jersey, from March 2011 until June 5, 2018. [BN]
The Plaintiff is represented by:
Gerald D. Wells, III, Esq.
CONNOLLY WELLS & GRAY, LLP
101 Lindenwood Drive, Suite 225
Malvern, PA 19355
Telephone: (610) 822-3700
Facsimile: (610) 822-3800
E-mail: gwells@cwglaw.com
sconnolly@cwglaw.com
- and –
Lawrence Kalikhman, Esq.
KALIKHMAN & RAYZ, LLC
1051 County Line Road, Suite A
Huntingdon Valley, PA 19006
Telephone: (215) 364-5030
Facsimile: (215) 364-5029
E-mail: lkalikhman@kalraylaw.com
ELASTOS FOUNDATION: Bleichmar Fonti Named Lead Counsel in Owen Suit
-------------------------------------------------------------------
In the case, MARK OWEN, individually and on behalf of all others
similarly situated, Plaintiff, v. ELASTOS FOUNDATION, FENG HAN,
RONG CHEN, FAY LI, and BEN LEE, Defendants, Case No.
1:19-cv-5462-GHW (S.D. N.Y.), Judge Gregory H. Woods of the U.S.
District Court for the Southern District of New York, appointed (i)
Mr. Owen and Mr. Wandling as the Lead Plaintiffs, and (ii)
Bleichmar Fonti & Auld LLP ("BFA") as the Lead Counsel.
In April 2020, Owen and Wandling filed a motion to serve as the
Lead Plaintiffs and for approval of their choice of counsel. The
Court ordered that any oppositions to the Motion be filed no later
than May 12, and that any replies be filed no later than May 19.
No opposition to the Motion has been filed, and the deadline for
any such opposition has passed.
The Private Securities Litigation Reform Act ("PSLRA") requires
that a plaintiff who files a putative class action publish, in a
widely circulated business-oriented publication or wire service, a
notice advising members of the purported class of the pendency of
the action, the claims asserted therein, and the purported class
period; and permits not later than 60 days after the date on which
the notice is published, any member of the purported class may move
the court to serve as lead plaintiff.
Judge Woods holds that the notice published in the case met the
standards set forth in the PSLRA. On Feb. 26, 2020, the counsel
for Owen and Wandling caused a notice about the pendency of the
action to be published in Accesswire. The publication in which the
notice was published was satisfactory. No party has challenged the
adequacy of the notice. The 60-day period in which any member of
the proposed class may apply for lead plaintiff status elapsed on
April 27, 2020. The Motion, which was filed on April 27, 2020, was
timely.
In assessing the financial interests of parties competing for lead
plaintiff status, Judge Woods finds that Owen and Wandling have the
largest -- indeed, the only -- demonstrated financial interest.
During the class period, Wandling is alleged to have suffered
$11,223.37 in losses, while Owen is alleged to have suffered losses
of $717.80, totaling $11,941.17. Thus have a sufficient financial
interest in the case's outcome to suggest that they will pursue the
case with vigor.
Owen and Wandling's choice of counsel, BFA, is qualified,
experienced, and generally able to conduct the litigation. BFA is
experienced in securities class action litigation, and has been
appointed by other federal judges to serve as lead counsel in other
matters. On that record, the Judge sees no reason not to adhere to
Owen and Wandling's choice of counsel.
For the reasons stated, Judge Woods granted the Motion. Owen and
Wandling are appointed the Lead Plaintiffs, and Bleichmar Fonti &
Auld LLP as the Lead Counsel.
A full-text copy of the District Court's May 26, 2020 Order is
available at https://is.gd/P7tHk0 from Leagle.com.
ELK ENERGY: Court Conditionally Certifies Class of Inspectors
-------------------------------------------------------------
In class action lawsuit captioned as RICHARD LUPARDUS, v. ELK
ENERGY SERVICES, LLC, Case No. 2:19-cv-00529 (S.D. W.Va.), the Hon.
Judge John T. Copenhaver Jr. entered an order:
1. conditionally certifying a class consisting of:
"all inspectors employed by Elk Energy Services, LLC
within the last three years";
2. directng Elk Energy by August 17, 2020, to provide the
plaintiff's counsel with the following information about
all class members in a computer-readable format: names,
mailing addresses, phone numbers, e-mail addresses, job
titles, and dates of employment;
3. directing the plaintiff to submit to Elk Energy and
the court proposed forms of the following: the
notice, the consent form, the reminder postcard, the
initial e-mail, the reminder e-mail, the initial text
message, and the reminder text message;
4. giving Elk Energy an opportunity to object to the form of
the forms and to negotiate, in good faith,
mutually agreeable forms with the plaintiff, which forms
shall be submitted by either party to the court for
approval by August 27, 2020; and
5. directing the plaintiff, after approval of the proposed
forms, to send the appropriate forms by first-class mail,
e-mail, and text message to the class members.
The court defines the putative class at the notice stage to be all
inspectors employed by Elk Energy Services, LLC within the last
three years. Elk Energy will have the opportunity to argue whether
the class, in whole or in part, is not similarly situated at the
decertification stage should it choose to do so. Finally, before
any notice is sent, Elk Energy should have the opportunity to
review the forms and communicate any concerns. The court shall have
final approval of all forms before they are sent, says the court.
The plaintiff alleges that all inspectors have the same basic job
duties. Inspectors do not supervise other employees, do not have
the authority to hire or fire other employees, and do not manage "a
customarily recognized department" of Elk Energy. Inspectors are
not "office" employees and their work does not relate to the
management of the company's operations. The primary duty of an
inspector does not require independent judgment or discretion.
Instead, inspectors perform extensive physical labor as "field"
employees in accordance with detailed step-by-step procedures
promulgated by Elk Energy or Elk Energy's customers.
Mr. Lupardus worked for Elk Energy as a pipeline inspector from
2010 until August 2018.
Elk Energy provides pipeline inspection services, environmental
compliance management, and project staffing, among other services,
in the construction and inspection industry. Elk Energy employs a
variety of inspectors, such as utility inspectors, trenching
inspectors, coating inspectors, welding inspectors, environmental
inspectors, and testing inspectors.[CC]
EMPIRE TODAY LLC: Young says Website not Blind-accessible
-----------------------------------------------------------
Lawrence Young, individually and on behalf of all other similarly
situated visually-impaired individuals, Plaintiff, v. Empire Today,
LLC, Defendant, Case No. 20-cv-05426 (S.D. N.Y., July 8, 2020),
seeks preliminary and permanent injunction, compensatory, statutory
and punitive damages and fines, prejudgment and post-judgment
interest, costs and expenses of this action together with
reasonable attorneys' and expert fees and such other and further
relief under the Americans with Disabilities Act, New York State
Human Rights Law and New York City Human Rights Law.
Empire operates the Empire Today online retail stores, selling
carpets, laminates and hardwood flooring, blinds and shades. It
also operates https://www.empiretoday.com/ that allows the purchase
of its products online. Plaintiff is legally blind and claims that
said website cannot be accessed by the visually-impaired. [BN]
Plaintiff is represented by:
Jeffrey M. Gottlieb, Esq.
Dana L. Gottlieb, Esq.
GOTTLIEB & ASSOCIATES
150 East 18th Street, Suite PHR
New York, NY 10003-2461
Telephone: (212) 228-9795
Facsimile: (212) 982-6284
Email: Jeffrey@gottlieb.legal
danalgottlieb@aol.com
EROS INT'L: Bid to Dismiss NJ Consolidated Suit Due August 28
-------------------------------------------------------------
Eros International Plc said in its Form 20-F report filed with the
U.S. Securities and Exchange Commission on July 30, 2020, for the
fiscal year ended March 31, 2020, that motions seeking dismissal of
the consolidated putative class action suit pending before the
United States District Court for the District of New Jersey are due
August 28, 2020.
Beginning on June 21, 2019, the Company was named a defendant in
two substantially similar putative class action lawsuits filed in
federal court in New Jersey by purported shareholders of the
Company.
The lawsuits allege that the Company and certain individual
defendants violated Sections 10(b) and 20(a) of the Securities
Exchange Act of 1934 by making false and/or misleading statements
regarding the Company's accounting for trade receivables.
On September 27, 2019, the putative class action filed in
California was transferred to the United States District Court for
the District of New Jersey.
On April 14, 2020, the three putative class actions were
consolidated, and a lead plaintiff was appointed.
On July 1, 2020, the court-appointed lead plaintiff filed a
consolidated complaint. The consolidated complaint expands the
scope of the allegations.
The Company expects to file a motion to dismiss, which is due
August 28, 2020.
Eros International Plc, together with its subsidiaries,
co-produces, acquires, and distributes Indian language films in
various formats worldwide. The company was founded in 1977 and is
based in Secaucus, New Jersey.
EXTEL SERVICES: Mackey Sues to Recover Final Paycheck, Overtime Pay
-------------------------------------------------------------------
Gregory Mackey, individually and on behalf of all others similarly
situated, v. Junior Munoz and Jason Dery, Defendant, Case No.
20-cv-00799, (W.D. Tex., July 9, 2020) seeks declaratory judgment,
monetary damages, prejudgment interest, and costs, including
reasonable attorneys' fees for failure to pay overtime and final
paycheck after termination of employment under the Fair Labor
Standards Act and the Texas Labor Code.
Defendants operate a construction company in Emory under the name
"Extel Services, LLC" where Mackey worked as a drill operator and
foreman. He worked for Extel from January of 2020 until May of
2020. He claims to be misclassified as an independent contractor
thus denied overtime pay. [BN]
Plaintiff is represented by:
Josh Sanford, Esq.
Merideth Q. McEntire, Esq.
SANFORD LAW FIRM, PLLC
One Financial Center
650 S. Shackleford Road, Suite 411
Little Rock, AR 72211
Telephone: (501) 221-0088
Facsimile: (888) 787-2040
Email: josh@sanfordlawfirm.com
merideth@sanfordlawfirm.com
FCA US: Garcia TCPA Suit Moved to Florida District Court
--------------------------------------------------------
Judge Stephen J. Murphy, III of the U.S. District Court for the
Eastern District of Michigan, Southern Division, transferred the
case, RICK-VINCENT GARCIA, Plaintiff, v. FCA US, LLC, Defendant,
Case No. 2:19-cv-12750 (E.D. Mich.), to the Southern District of
Florida.
The present action involves a potential class that alleged
violations of the Telephone Consumer Protection Act ("TCPA").
Plaintiff Garcia, a Florida resident, initially filed the case in
the U.S. District Court for the Southern District of Florida, and
alleged that the Defendant violated the TCPA when it caused a
prerecorded message to be transmitted to the Plaintiff's cellular
telephone. On Dec. 10, 2018, the Florida case was stayed pending
the outcome of Salcedo v. Hanna, 936 F.3d 1162 (11th Cir. 2019)
because the outcome of that case could have been dispositive of the
Florida case.
The U.S. Court of Appeals for the Eleventh Circuit issued an
opinion in Salcedo on Aug. 28, 2019, and held that a single text
message sent to a plaintiff's cellphone in violation of the TCPA
does not meet the injury-in-fact requirement of Article III. And
it is clear to the Court that there are similarities between the
injury of receiving a single text message and the injury of
receiving a single voicemail message.
Soon after the Salcedo opinion was released, the Plaintiff moved to
voluntarily dismiss the Florida case and the Southern District of
Florida granted the motion 13 days later, on Sept. 10, 2019. Ten
days later, on Sept. 20, 2019, the Plaintiff filed a nearly
identical complaint in the Eastern District of Michigan.
The Defendant filed a motion to dismiss and the present motion to
transfer the case to the Southern District of Florida. In its
motion, it claimed that the Plaintiff engaged in forum shopping
when he dismissed a case pending in the Southern District of
Florida after an unfavorable decision from the Eleventh Circuit and
refiled a nearly identical case in the Eastern District of
Michigan.
Based on his analysis of the factors, Judge Murphy agreed and
granted the Defendant's motion to transfer the case. The Plaintiff
moved to dismiss the Florida case days after the Eleventh Circuit
handed down potentially negative precedent to his legal theory. He
also swiftly filed a nearly identical complaint in the Court. He
was represented by the same law firms in both cases. The timing of
the Plaintiff's dismissal and refiling of his complaint leads the
Court to suspect that he refiled his complaint in an attempt to
forum shop. Because the Plaintiff filed his complaint in the
Eastern District of Michigan to avoid Eleventh Circuit precedent,
transferring the case to the Southern District of Florida will
serve the interest of justice by discouraging the practice of forum
shopping.
The Southern District of Florida is at least as convenient a forum
as the Court. The Defendant's employees reside mainly in Michigan,
but one of the law firms representing it is from Missouri. The
Plaintiff and his attorneys, on the other hand, reside in Florida.
The parties will both have to travel to take depositions and attend
hearings in the Eastern District of Michigan. But the Southern
District of Florida is close to home for the Plaintiff and his
lawyers. And because the Defendant is the party seeking transfer,
the Judge can infer that the Defendant is unconcerned about any
personal loss of convenience.
Judge Murphy held that transfer to the Southern District of Florida
is appropriate.
A full-text copy of Judge Murphy's May 26, 2020 Opinion & Order is
available at https://is.gd/pMWzPb from Leagle.com.
FIELDCORE SERVICES: Trottier Suit Moved From California to Texas
----------------------------------------------------------------
The class action lawsuit captioned as MARTIN TROTTIER, individually
and on behalf of all others similarly situated v. FIELDCORE
SERVICES SOLUTIONS, LLC, and GRANITE SERVICES INTERNATIONAL, INC.,
Case No. 2:20-cv-00077 (Filed Jan. 3, 2020), was transferred from
the U.S. District Court for Central District of California to the
U.S. District Court for Northern District of Texas (Amarillo) on
Aug. 4, 2020.
The Northern District of Texas Court Clerk assigned Case No.
2:20-cv-00186-Z to the proceeding. The case is assigned to the Hon.
Judge Matthew J. Kacsmaryk.
The Plaintiff works for Defendant FieldCore Service. He contends
that the nature of his working relationship with Defendants is that
of an employer-employee, and he is entitled to the benefits of an
employee under the Fair Labor Standards Act, California law, and
New York law. He works overtime while working for the Defendants
but they pay him the same hourly rate for all hours worked,
including those in excess of 40 in a workweek.
Mr. Trottier seeks back wages, liquidated damages, attorney fees,
costs, and all other remedies available under the FLSA, California
law, and New York law.
FieldCore, a GE company, is a new, independent industrial field
services company that will deliver field services for GE and its
customers.[BN]
The Plaintiff is represented by:
Matthew S. Parmet, Esq.
PARMET PC
340 S. Lemon Ave., No. 1228
Walnut, CA 91789
Telephone: 713 999 5228
Facsimile: 713 999 1187
E-mail: matt@parmet.law
- and -
Richard M. Schreiber, Esq.
JOSEPHSON DUNLAP
11 Greenway Plaza, Suite 3025
Houston, TX 77046
Telephone: (713) 352-1100
Facsimile: (713) 335-3300
E-mail: rschreiber@mybackwages.com
The Defendants are represented by:
Jonathan Lawrence Brophy, Esq.
SEYFARTH SHAW LLP
2029 Century Park East, Suite 3500
Los Angeles, CA 90067-3021
Telephone: (310) 277-7200
Facsimile: (310) 201-5219
E-mail: jbrophy@seyfarth.com
FIFTH THIRD BANK: Court Dismisses Malagese Suit With Prejudice
--------------------------------------------------------------
In the case, DAVID MALAGESE and GABRIELLE CHAPPELL, individually
and on behalf of all persons similarly situated, Plaintiffs, v.
FIFTH THIRD BANK, N.A., Defendant, Civil Action No.
3:17-CV-00489-GNS-RS (W.D. Ky.), Judge Greg N. Stivers of the U.S.
District Court for the Western District of Kentucky, Louisville
Division, granted the Defendant's Motion for Summary Judgment.
Malagese and Chappell bring the putative class action on behalf of
themselves and those similarly situated against Defendant Fifth
Third, asserting claims for breach of contract. Specifically, the
Plaintiffs assert that Fifth Third improperly charged them
overdraft fees. Fifth Third moves for summary judgment.
Both parties agree that subject matter jurisdiction is proper here
under the Class Action Fairness Act. They agree that the $5
million amount in controversy requirement is satisfied and that the
proposed class exceeds 100 members.
The parties' entire dispute rests on whether Fifth Third properly
charged the Plaintiffs with overdraft fees pursuant to the terms of
their contracts. In a putative class action lawsuit based on
diversity jurisdiction, state substantive law applies. The parties
do not dispute the application of Ohio substantive law to the
Plaintiffs' claims, pursuant to the terms of their contracts, and
also acknowledge that whether Ohio or Kentucky law applies is
immaterial because the jurisprudence of both states governing
breach of contract claims do not materially differ. Judge Stivers
will therefore look to Ohio substantive law in adjudicating the
Plaintiffs' breach of contract claims.
Malagese opened a checking account with Fifth Third on March 1,
2013, and Chappell opened her account on July 13, 2011. By doing
so, Malagese and Chappell agreed to the terms and conditions set
forth in the Rules and Regulations Applicable to All Fifth Third
Consumer and Business Banking Accounts and Cards. The parties'
dispute centers on the interpretation of the Rules and Regulations
against a series of transactions executed by the Plaintiffs that
resulted in the issuance of overdraft fees against them. Contract
interpretation is normally a question of law and only becomes a
question of fact when an ambiguous term necessitates the
introduction of extrinsic evidence to interpret the contract.
The first sets of transactions at issue by Malagese gave rise to an
overdraft fee charged on Sept. 11, 2015. On that day, Malagese
possessed a beginning balance of $117.16 in his checking account.
He deposited a check for $1,183.83 and made two transfers from his
savings account to his checking account totaling $600. Malagese
made three debit card purchases two days earlier which were
finalized on September 11 for a total of $20.39, in addition to a
September 11 "merchant payment" at Walmart for $131.50. Simply
totaling deposits and subtracting the debits on that day would
yield a positive account balance, which would have avoided an
overdraft charge. The terms of the Rules and Regulations, however,
provide that only $100 of an account holder's standard check
deposit is available for use on the date of the deposit. Because
only $100 of the $1,183.83 check Malagese deposited was usable on
September 11, Malagese's net transactions that day actually
resulted in a negative balance of $784.73.
Judge Stivers finds that Fifth Third's funds availability policy
clearly specifies that only $100 of a standard check deposited is
available for use by the account holder on the date of deposit,
which supports Fifth Third's imposition of the overdraft charges at
issue to Malagese. There is simply nothing in the Rules and
Regulations precluding application of the funds availability policy
in determining whether an account holder possesses "sufficient
funds" or "enough money in his or her account," which is
highlighted by Malagese's failure to point to any portion of the
Rules and Regulations to support his contention.
Also, the interpretation of "sufficient funds" and "enough money"
is simple and unambiguous --funds over $100 from a standard check
deposited into an account are not "available" for an account
holder's use on the date of deposit and thus cannot be considered
"funds" or "money" until the next business day. And, charging
overdraft fees effects the funds availability policy in the same
way that the right to reject transactions does -- reinforcing to an
account holder that he or she cannot use more than $100 from an
unverified check on the date of the deposit without consequences.
For these reasons, the Judge holds that no reasonable account
holder would believe that he or she could use more than $100 from a
check whose funds will be verified the next business day without
being subject to overdraft fees. Malagese was properly charged an
overdraft fee on Sept. 11.
Malagese identifies in response to Fifth Third's motion another
series of transactions occurring on June 4, 2014, that he asserts
resulted in wrongful overdraft fees. He claims another instance of
improper overdraft fees, which mirrors part of Chappell's challenge
and involves the overdraft calculation order policy in the Rules
and Regulations.
The Judge finds that Fifth Third properly applied the Rules and
Regulations to charge the Plaintiffs with overdraft fees. Although
they assert that the sets of transactions highlighted are
illustrative of Fifth Third's illegal practices, the Plaintiffs
have offered no other proof to support their claims that Fifth
Third has improperly overcharged fees to its customers. Fifth
Third did not breach its contracts with the Plaintiffs, so summary
judgment will be granted in Fifth Third's favor on all of their
claims, which will be dismissed with prejudice.
Finally, because summary judgment will be granted in Fifth Third's
favor, the entire action may be properly dismissed. The entirety
of the action may therefore be dismissed.
For the reasons he set forth, Judge Stivers granted the Defendant's
Motion for Summary Judgment. All of the Plaintiffs' claims against
the Defendant are dismissed with prejudice. The Clerk is directed
to strike the matter from the active docket.
A full-text copy of the District Court's May 26, 2020 Memorandum
Opinion & Order is available at https://is.gd/Pn6ctZ from
Leagle.com.
FLEX LTD: Court Dismisses Kipling Securities Suit Without Prejudice
-------------------------------------------------------------------
Judge Lucy H. Koh of the U.S. District Court for the Northern
District of California, San Jose Division, has dismissed without
prejudice the class action complaint, DAVID KIPLING, et al.,
Plaintiffs, v. FLEX LTD., et al., Defendants, Case No.
18-CV-02706-LHK (N.D. Cal.).
Lead Plaintiff National Elevator Industry Pension Fund,
individually and on behalf of all other persons similarly situated,
alleges that Defendants Flex, Michael M. McNamara, Christopher E.
Collier, Michael C. Dennison, and Kevin Kessel, violated federal
securities laws.
Plaintiff National Elevator is a multiemployer pension plan as
defined in sections 3(2)(A) and 3(37) of the Employee Retirement
Income Security Act of 1974. The Plaintiff "purchased Flex
securities" and was allegedly damaged by the Defendants'
misrepresentations and omissions. It seeks to represent a class of
all persons and entities who, during the period from Jan. 26, 2017
to Oct. 25, 2018, inclusive, purchased the publicly traded common
stock of Flex Ltd.
Defendant Flex is incorporated in Singapore and maintains offices
in San Jose, California. Its common stock trades on the NASDAQ
Stock Market under the ticker symbol "FLEX." Defendant McNamara
served as the CEO of Flex and a member of its Board of Directors
until Dec. 31, 2018. Defendant Collier serves as the CFO of Flex.
Defendant Kessel serves as the Vice President of Investor Relations
and Corporate Communications of Flex. Defendant Dennison served as
the President of Flex's Consumer Technology Group. Defendant
Dennison's employment with Flex ended in approximately July or
August 2018.
The Plaintiff alleges Flex is a design, engineering, manufacturing,
and supply chain firm, though the Plaintiff contends that Flex is
and always was principally in the business of electronics
manufacturing services. At some point in 2015, in an effort to
expand its business beyond electronic manufacturing, Flex rebranded
from "Flextronics International" to its current name, Flex. Flex
also embraced a strategy that Flex dubbed "Sketch-to-Scale," a term
that Flex trademarked. Under the Sketch-to-Scale strategy, Flex
provides its own in-house design engineers to customers with a view
towards helping take a product idea or concept to a final
manufactured product. The process purportedly allows Flex to
become involved in designing and incorporating product
specifications that are tailored to Flex's established
manufacturing and supply chain operations which then allows Flex to
manufacture and ship the product more efficiently.
In October 2015, Flex announced that it had entered into a contract
with Nike to manufacture shoes. The Plaintiff contends that the
Nike contract was in fact in disarray due to a myriad of
manufacturing issues that were materially impacting Flex's ability
to manufacture enough shoes to come close to being on a trajectory
to breakeven. On Oct. 25, 2018, Flex announced the winding down of
operations related to the Nike contract effective Dec. 31, 2018,
because in recent weeks, it became clear that the Company [i.e.,
Flex] would be unable to reach a commercially viable solution" as
to the Nike contract. On that same day, Flex also announced the
retirement of Defendant McNamara. The Plaintiff alleges that this
news caused Flex's stock price to drop 35% in one day
The Plaintiff alleges that over the course of the foregoing events,
between Jan. 26, 2017 and July 26, 2018, the Defendants made 24
false or misleading statements. On May 8, 2018, a group of Flex
shareholders filed suit against Defendants Flex, Collier, and
McNamara. On Oct. 1, 2018, the Court then appointed Plaintiff
Bristol County Retirement System as the Lead Plaintiff in the
instant case. On Nov. 8, 2018, Bristol filed an amended complaint
that substantially altered the class allegations against Flex. In
light of this fact, the Court vacated the appointment of the Lead
Counsel in order to re-open the appointment process. On Sept. 26,
2019, the Court then appointed Plaintiff National Elevator as the
Lead Plaintiff.
On Nov. 8, 2019, the Plaintiff filed the operative Consolidated
Class Action Complaint. On Dec. 4, 2019, the Defendants filed a
motion to dismiss the complaint. On Dec. 23, 209, the Plaintiff
filed an opposition. On Jan. 9, 2019, the Defendants filed a
reply.
As an initial matter, the Defendants offer 23 exhibits that they
argue are subject to the Court's consideration pursuant to the
doctrines of judicial notice and incorporation by reference. The
Plaintiff only opposes the Defendants' request to the extent they
offer Exhibits 1-23 for the truth of the matter asserted therein.
The Defendants request that the Court take judicial notice or apply
the doctrine of incorporation by reference to two categories of
documents: (1) transcripts from earnings calls, investor and
analyst conferences, and related presentations; and (2) SEC filings
such as Forms 10-K, 10-Q, and 8-K. Defendants offer these
documents for the purpose of demonstrating what Flex and/or its
employees said to the market, and for the purpose of providing the
Court with the full unabridged statements cited by the Plaintiff
and accompanying context regarding these statements.
All of the foregoing documents are public documents the accuracy of
which is not reasonably subject to dispute.
Accordingly, Judge Koh grants the Defendants' request for judicial
notice. The Judge considers these documents in evaluating the
motion to dismiss for the sole purpose of determining what
representations the Defendants made to the market. The Judge is
not taking notice of the truth of any of the facts asserted.
The Plaintiff alleges two causes of action: (1) violation of
Section 10(b) of the Exchange Act and Rule 10b-5 against all the
Defendants; and (2) violation of Section 20(a) of the Exchange Act
against Defendants McNamara, Collier, Dennison, and Kessel.
The Defendants argue that the Plaintiff fails to plead any material
misrepresentation or omission. Specifically, they claim that many
of the alleged misrepresentations are protected by the PSLRA's
"Safe Harbor" Provision; many of the statements are nonactionable
statements of corporate optimism; and that the Plaintiff fails to
plead falsity with respect to any of the alleged
misrepresentations. The Defendants also claim that the Plaintiff
fails to plead a strong inference of scienter.
As to the applicability of the PSLRA safe harbor, the Judge
concludes that statements 3, 4, 5, 11, 12, 13, 14, 17, 18, 21, 22,
23, and 24 are forward-looking and hence possibly subject to the
PSLRA safe harbor. Portions of statements 9, 15, and 16 are also
forward-looking. Moreover, statements 3, 4, 11, 17, 21, 23, and 24
are indeed subject to the PSLRA safe harbor because they were
accompanied by meaningful cautionary language at the time they were
made. The same is true for the forward-looking portions of
statements 9 and 16. The Judge further concludes that statements
1, 2, 9, and 10 constitute non-actionable statements of corporate
optimism.
As to falsity, the Judge concludes that the CWs' assertions do not
adequately allege the falsity of statements 3, 5, 9, 11, 12, 13,
14, 15, 16, 17, 18, 21, 22, 23, and 24. The Judge further
concludes that the Plaintiff also does not allege falsity with
sufficient particularity under the PSLRA as to statements 6, 7, 8,
19, and 20.
For the foregoing reasons, Judge Koh concludes that the Plaintiff
has failed to adequately allege that any of the Challenged
Statements are false or misleading under the PSLRA. Because
granting the Plaintiff an additional opportunity to amend the
complaint would not be futile, cause undue delay, or unduly
prejudice the Defendants, and because the Plaintiff has not acted
in bad faith, the Court grants leave to amend. Upon amendment, the
Plaintiff must provide more details and clearly tie the operational
difficulties that the CWs discuss to the profitability of the Nike
contract.
Although she grants the Defendants' motion to dismiss because none
of the allegedly false or misleading statements are actionable, in
anticipation of an amended complaint, the Judge briefly addresses
the Defendants' argument about scienter.
The Plaintiff argues that they have adequately pled scienter
through (1) the CW allegations; (2) the core operations doctrine;
(3) the alleged misstatements themselves; (4) Defendants McNamara
and Dennison's responsibilities in connection to the Nike contract;
(5) Defendants McNamara and Dennison's resignations; and (6)
alleged post-Class Period admissions.
The Defendants argue, by contrast, that none of these factors
support a strong inference of scienter. Instead, the Defendants
claim that multiple factors weigh against a strong inference of
scienter: (1) the Plaintiff does not allege any improper stock
sales; (2) the Defendants consistently disclosed operational
difficulties; and (3) the Defendants made significant investments
of time and money into the Nike contract.
The Court need not consider all of the parties' arguments because
it found all of the statements non-actionable. However, Judge Koh
nevertheless provides a few comments as to scienter. First,
numerous CW statements currently lack reliability because the
Plaintiff has not provided enough information about the
responsibilities of CW3, CW4, and CW6. Therefore, to the extent
the Plaintiff's allegations of scienter are based on these CWs'
statements, more information as to the CWs must be pled. Second,
the Judge concluded that statements 3, 4, 5, 11, 12, 13, 14, 17,
18, 21, 22, 23, and 24 as well as portions of statements 9, 15, and
16 are forward-looking. Thus, to the extent these statements are
not accompanied by meaningful cautionary language, the Plaintiff
must plead actual knowledge that the statement was false or
misleading.
Third, the Defendants contend that the dismissal as to Mr. Collier
and Mr. Kessel should be with prejudice because the Plaintiff does
not address scienter with respect to these Defendants. Judge Koh
disagrees. The Plaintiff discusses the conduct of the Defendants
generally, presumably including Defendants Collier and Kessel. In
any event, because the Court did not reach the issue of scienter in
the instant Order, dismissal without leave to amend is
inappropriate.
Finally, because the Plaintiff has failed to plead a primary
securities law violation, the Plaintiff has also failed to plead a
violation of Section 20(a). Accordingly, the Defendants' motion to
dismiss the Plaintiff's claim under Sections 20(a) is also granted.
Because granting the Plaintiff an additional opportunity to amend
the complaint would not be futile, cause undue delay, or unduly
prejudice the Defendants, and the Plaintiff has not acted in bad
faith, the Court grants leave to amend.
For the foregoing reasons, Judge Koh granted the Defendants' motion
to dismiss the Plaintiff's complaint in its entirety without
prejudice in a May 29, 2020 Order available at https://is.gd/aWJyGD
from Leagle.com.
Since then, the Plaintiffs have filed an amended class action
complaint on June 29, 2020.
The Defendants filed a Motion to Dismiss the Amended Complaint in
July 2020. Hearing on the matter is set for Dec. 3, 2020.
FLORIDA'S NATURAL: 2nd Cir. Upholds Dismissal of Axon Class Suit
----------------------------------------------------------------
In the case, ALEXANDRA AXON, ON BEHALF OF HERSELF AND ALL OTHERS
SIMILARLY SITUATED, Plaintiff-Appellant, v. FLORIDA'S NATURAL
GROWERS, INC., CITRUS WORLD, INC., Defendants-Appellees, Case No.
19-203-cv (2d Cir.), the U.S. Court of Appeals for the Second
Circuit affirmed the judgment of the district court dismissing
Axon's complaint for failure to state a claim and denying as futile
her motion for leave to amend her complaint.
Axon commenced the putative class action against Florida's Natural
and its parent company, Citrus World, asserting claims under New
York's consumer protection statutes prohibiting deceptive business
practices and false advertising, as well as common law claims for
breach of express warranty and unjust enrichment. The case centers
on the appearance of the word "natural" in the brand name
"Florida's Natural."
Specifically, Axon alleges that the use of the term "natural" in
Defendant's brand name -- the term appears nowhere else on
Defendant's products or packaging -- is deceptive because its
orange-juice products contain trace amounts of glyphosate, an
herbicide used to kill weeds that is not a natural ingredient.
Axon appeals from a judgment of the district court (Ross, J.)
dismissing her complaint for failure to state a claim and denying
as futile her motion for leave to amend her complaint. On appeal,
Axon challenges both rulings, contending that the court made
improper evidentiary determinations, applied too strict a pleading
standard, erred in analyzing the deceptive significance of the
Defendant's branding, and incorrectly dismissed her unjust
enrichment claim as duplicative of her other claims.
Florida's Natural contends that Axon lacks standing to seek
injunctive relief or damages. The Second Circuit disagrees, at
least with respect to Axon's standing to seek damages. The
Defendant maintains that Axon does not have Article III standing or
statutory standing under New York law to seek damages because she
fails to establish an injury-in-fact. As for Article III standing,
Axon has suffered an injury-in-fact because she purchased products
bearing allegedly misleading labels and sustained financial injury
-- paying a premium —-- as a result. As for statutory standing,
Axon has alleged that the price of the product was inflated as a
result of the Defendant's deception, which meets the injury
requirement. Furthermore, Axon's failure to identify the prices of
competing products to establish the premium that she paid "is not
fatal to her claim" at this stage of the proceeding.
Axon asserts that the district court improperly weighed the
evidentiary value of certain survey evidence that she submitted
with her motion for leave to amend her complaint, failed to apply a
liberal pleading standard, and did not view her allegations in the
light most favorable to her. The district court, however, did not
engage in any factfinding or weighing of evidence in determining
that the survey did not render Axon's claims plausible. Instead,
it concluded that the proposed amended complaint's conclusory
allegations were unsupported by the survey. Put simply, the survey
does not render Axon's claims plausible even taking the allegations
of the proposed amended complaint as true and viewing them in the
light most favorable to her. Accordingly, the district court did
not make impermissible evidentiary determinations or fail to apply
the correct pleading standard when it denied Axon's motion for
leave to amend her complaint, the Second Circuit opines.
Axon next contends that the district court created an improper
distinction between products whose brand name contains a "natural"
representation and products that make "natural" representations
apart from the brand name. But the district court properly
analyzed the Florida's Natural packaging as a whole in analyzing
whether it was potentially deceptive or misleading, determining
that no reasonable consumer would be misled into believing that
Defendant's products did not contain any trace amounts of
glyphosate. Contrary to Axon's characterizations of the district
court's analysis, the court did not conclude that a brand name can
never be misleading, but merely performed the requisite objective
reasonable consumer inquiry under the circumstances of the case,
the Second Circuit holds.
Axon maintains that the district court improperly concluded that a
claim based on a "natural" label is not plausible if the product
contains "unnatural contaminants," as opposed to "unnatural
ingredients." First, the Second Circuit agrees with the district
court that the presence of glyphosate as a contaminant in the
Defendant's products, rather than an intentionally-added
ingredient, bolsters the conclusion that a reasonable consumer,
viewing the brand name "Florida's Natural," would not make
assumptions regarding the presence or absence of trace amounts of
glyphosate. Second, the district court was correct to distinguish
the cases that Axon cited because those cases involved different
representations, such as "pure" or "100% natural," and allegations
that the defendant added unnatural ingredients to its products.
Third, Axon is incorrect that the district court speculated about
"how and when" glyphosate entered the production process. Axon
thus fails to demonstrate any error in the district court's
analysis of the proposed amended complaint, the Second Circuit
finds.
Axon finally asserts that the district court improperly dismissed
her unjust enrichment claim as duplicative of her breach of
warranty/implied contract claim, arguing that a claim for unjust
enrichment may survive, despite a claim for warranty, when there is
doubt as to the existence of the warranty. But while it is true
that a plaintiff may plead unjust enrichment in the alternative to
a breach of warranty claim, the unjust enrichment claim here fails
for the same reasons that Axon's other claims do -- namely, that
she has not alleged a fraud that would render Florida's Natural's
enrichment "unjust." Accordingly, the Second Circuit affirms the
district court's dismissal of Axon's alternative unjust enrichment
claim.
The Second Circuit has considered Axon's remaining contentions and
concluded that they are without merit. For the foregoing reasons,
the judgment of the district court is affirmed, the Second Circuit
rules.
A full-text copy of the Second Circuit's May 29, 2020 Summary Order
is available at https://is.gd/wilwTf from Leagle.com.
KIM E. RICHMAN -- krichman@richmanlawgroup.com -- Richman Law
Group, New York, NY, for Appellant.
DANIEL H. COULTOFF -- coultoff@lathamluna.com -- (Christina Y.
Taylor -- ctaylor@lathamluna.com -- on the brief), Latham, Shuker,
Eden & Beaudine, LLP, Orlando, FL, for Appellees.
Tom M. Fini, on the brief, Catafago Fini LLP, New York, NY, for
Appellees.
FLORIDA: Faces Class Action Over Bar Closures Amid COVID-19
-----------------------------------------------------------
WINK reports that the Law Offices of Travis R. Walker P.A.
announced July 20 the filing of a class-action lawsuit against the
state of Florida on behalf of bar owners throughout Florida.
The lawsuit represents the owners of bars closed due to the state's
COVID-19 emergency order.
"We believe the shutdown is arbitrary and singles out bar owners in
a discriminatory fashion," Travis Walker said in a news release.
"We have filed suit against the Department of Business and
Professional Regulation as this order selectively culls out bar
owners and is not related to the government's purpose. Several bars
have attained our pro bono services and we anticipate more to
join."
Bar owners who have closed because of the state's emergency order
can inquire about pro bono representation by calling 772-708-0952
or emailing clienthappiness@traviswalkerlaw.com. [GN]
FLUOR CORP: Court Consolidates Chun & Union Class Suits
-------------------------------------------------------
In the case, KIN-YIP CHUN, Individually and on Behalf of All Others
Similarly Situated, Plaintiff, v. FLUOR CORPORATION, et. al.,
Defendants, Civil Action No. 3:18-CV-01338-X (N.D. Tex.), Judge
Brantley Starr of the U.S. District Court for the Northern District
of Texas, Dallas Division:
(1) granted the motion by Lead plaintiffs Wayne County
Employees Retirement System and the Town of Fairfield Employees'
Retirement Plan, the Town of Fairfield Police and Firemen's
Retirement Plan, to consolidate the case with Union Asset
Management Holding AG v. Fluor Corporation et. al., Civil Action
No. 3:20-cv-00518;
(2) dismissed as moot the Lead Plaintiffs' motion to vacate the
lead plaintiff motion deadline in the Union Asset Management
Holding AG's case and to require Union to republish a corrected
public notice;
(3) granted Union's motion to intervene;
(4) denied Union's motion to strike the Lead Plaintiffs'
amended consolidated complaint; and
(5) denied Union's motion to reopen the Lead Plaintiff
selection process.
Defendant Fluor Corp. is an engineering, procurement, and
construction company that was previously in the business of
competitive bidding in engineering, procurement, and construction
of gas-fired power plants for a fixed price. It was awarded
contracts on four such projects from 2012 to 2015. All four
projects encountered challenges. Fluor's disclosures in August
2017 and May 2018 indicated it incurred significant losses, leading
to a $125 million pre-tax charge and a $144 million segment loss in
the first quarter of 2018. Fluor ultimately closed the office
responsible for the bids and exited the fixed-price, gas-fired
power plant market.
Kin-Yip Chun brought the suit as a putative class action to recover
the loss in stock value as a result of the cost overruns and
disclosures. The Court appointed Wayne County Employees Retirement
System and Fairfield Funds as the Lead Plaintiffs, and they filed a
consolidated complaint.
The Defendants, Fluor and various Fluor officers, moved to dismiss
that complaint on July 15, 2019. The Court granted the motion to
dismiss on March 5, 2020 but allowed the Lead Plaintiffs to
replead. While the motion to dismiss was being considered, on
February 18, 2020, Fluor announced that it was under investigation
by the Securities Exchange Commission. In response, Union filed
its own putative class action complaint on February 28, 2020
alleging Fluor, among other things, improperly recognized revenue
on sixteen separate projects in violation of the Securities
Exchange Act between Nov. 2, 2017 and Feb. 14, 2020. After the
Court's March 5, 2020 order allowing the Lead Plaintiffs to
replead, the Lead Plaintiffs filed an amended consolidated
complaint on April 2, 2020. The parties do not dispute that the
amended consolidated complaint encompasses the claims and issues
raised in Union's complaint.
After filing the amended consolidated complaint, the Lead
Plaintiffs filed a motion to consolidate requesting the case be
consolidated with Union's case. The filing also includes a motion
requesting that the deadline to file a Lead Plaintiff motion in
Union's case be vacated and that Union be further required to
republish its public notice to say no new Lead Plaintiff motions
will be heard and that the case has been consolidated. The day
after the Lead Plaintiffs' filing Union filed a motion to
intervene, containing a motion to strike the amended consolidated
complaint and, in the alternative, a motion to vacate the Lead
Plaintiff order and restart the Lead Plaintiff selection process.
These motions are ripe for the Court's review.
Union argues in its motion to intervene that it should be granted
intervention as of right and permissive intervention because its
claims have been absorbed by Union's amended consolidated
complaint. Judge Starr agrees that permissive intervention is
appropriate and need not address intervention as of right.
As both parties acknowledge, the scope of the Lead Plaintiffs'
amended consolidated complaint incorporates the class period,
claims, and issues in Union's complaint. Because the amended
consolidated complaint incorporates Union's complaint, the Judge
finds Union's claims share with the case common questions of law
and fact. He also finds the parties in the case will not be unduly
prejudiced by Union's intervention because the case has not yet
proceeded to discovery and that briefing on the upcoming motion to
dismiss will not be complete for several months.
On the timeliness issue, as Union filed their motion to intervene
one day after the Lead Plaintiffs filed their motion to
consolidate, the Judge finds Union's motion was timely filed.
Finally, concerning the Lead Plaintiffs' undue prejudice, undue
delay, and adequate representation concerns, these concerns are
moot. The Judge will not grant Union's motion to strike the
amended complaint or motion to restart the Lead Plaintiff selection
process. For these reasons, the Judge allows Union's permissive
intervention into the case.
Within its motion to intervene, Union moves to strike the Lead
Plaintiffs' amended consolidated complaint under Federal Rule of
Civil Procedure 12(f), arguing that they expanded their complaint
beyond the scope of what the Court permitted in its dismissal order
issued on March 5, 2020. The Lead Plaintiffs respond that the
Court's dismissal order permitted them to expand their complaint
and that Union does not meet the high bar required to strike a
complaint.
The Judge agrees with the Lead Plaintiffs. The Court's dismissal
order allowed the Lead Plaintiffs to expand their complaint.
Additionally, Union does not establish under Federal Rule of Civil
Procedure 12(f) that the expanded claims and facts in the amended
consolidated complaint are "redundant, immaterial, impertinent, or
scandalous." The order also does not contain any similar
restrictive language that would indicate the Lead Plaintiffs were
barred from expanding their complaint. For these reasons, the
Judge finds the amended, consolidated complaint to be the operative
complaint in the case and does not strike or otherwise dismiss it.
The Lead Plaintiffs in their motion to consolidate allege Union's
action should be consolidated with the case because the Union
action involves overlapping factual questions, overlapping
Defendants, an overlapping class period, and asserts identical
legal claims with the amended consolidated complaint.
The Judge will consolidate the case with Union's case and will moot
the Lead Plaintiffs' motion to vacate and for Union to republish
its public notice. The case and the Union case "involve a common
question of law or fact" and so will consolidate them. The Lead
Plaintiffs' motion to vacate and for Union to republish its public
notice is moot. First, the deadline to file a lead plaintiff
motion was April 28, 2020, which has since passed. Second, the
Lead Plaintiffs will remain lead plaintiffs in the case. For these
reasons, the Court will consolidate the case with Union's case and
will moot the Lead Plaintiffs' motion to vacate and for Union to
republish its public notice.
Union in its motion to intervene argues that, in the event the
Court denies its motion to strike the Lead Plaintiffs' amended
consolidated complaint, the Court should restart the lead plaintiff
selection process in the case because the Lead Plaintiffs' amended,
consolidated complaint dramatically altered the nature of the
lawsuit. The Lead Plaintiffs respond that the deadline for filing
the lead plaintiff motions has passed and that the amended
consolidated complaint has not dramatically altered the nature of
the lawsuit.
The Judge agrees with the Lead Plaintiffs. The Judge declines to
restart the lead plaintiff selection process. The text of 15
U.S.C. Section 78u-4(a)(3)(A) does not contemplate a restarting of
the lead plaintiff selection process. Reopening the lead plaintiff
process increases the risk that appointment of lead counsel could
be delayed indefinitely if new complaints alleging earlier or later
starting dates for the class period" or new allegations are filed.
Such risks, if realized, would substantially delay proceedings.
Based on the foregoing, Judge Starr granted Union's motion to
intervene in the case. He denied Union's motion to strike the Lead
Plaintiffs' amended consolidated complaint. He granted the Lead
Plaintiffs' motion to consolidate. The Judge dismissed as moot the
Lead Plaintiffs' motion to vacate the lead plaintiff motion
deadline in Union's case and require Union to republish its public
notice. He denied Union's motion to restart the lead plaintiff
selection process.
Pursuant to Federal Rule of Civil Procedure 42(a), Chun v. Fluor
Corporation, et. al., Civil Action No. 3:18-CV-01338-X and Union
Asset Management Holding AG v. Fluor Corporation et. al., Civil
Action No. 3:20-cv-00518 are consolidated under Chun v. Fluor
Corporation, et. al., Civil Action No. 3:18-CV-01338-X for all
purposes, including pretrial proceedings, trial, and appeal. The
clerk of Court will administratively close 3:20-CV-00518-X for
statistical purposes. Upon consolidation of these cases, the Court
will dismiss as moot the pending lead plaintiff motions carried
over from 3:20-CV-00518.
A full-text copy of the District Court's May 26, 2020 Memorandum
Opinion & Order is available at https://is.gd/KQYaml from
Leagle.com.
FOOD PLUS: Fouissi Seeks Unpaid Overtime Wages
----------------------------------------------
Redouane Fouissi, and other similarly situated individuals,
Plaintiffs, v. Food Plus Enterprises Inc., AJA Land LLC, AJA
Wholesale International Inc. and Abdel Assaf, Defendants, Case No.
20-cv-22866, (S.D. Fla., July 13, 2020) seeks to recover unpaid
overtime compensation, as well as an additional amount as
liquidated damages, costs and reasonable attorneys' fees under the
Fair Labor Standards Act.
Defendants operate as "Family Food Store" and "King's Market," a
group of stores owned by Abdel Assaf where Fouissi worked as a
cashier. He claims to have worked approximately an average of 70-80
hours per week without being paid overtime compensation for hours
over 40 per work week. [BN]
The Plaintiff is represented by:
Tanesha Blye, Esq.
Aron Smukler, Esq.
R. Martin Saenz, Esq.
SAENZ & ANDERSON, PLLC
20900 NE 30th Avenue, Ste. 800
Aventura, FL 33180
Telephone: (305) 503-5131
Facsimile: (888) 270-5549
Email: msaenz@saenzanderson.com
tblye@saenzanderson.com
asmukler@saenzanderson.com
GENWORTH LIFE: 11th Cir. Vacates Order Enjoining TVPX Virginia Suit
-------------------------------------------------------------------
In the case, TVPX ARS, INC., Plaintiff-Appellant/Cross-Appellee, v.
GENWORTH LIFE AND ANNUITY INSURANCE COMPANY,
Defendant-Appellee/Cross-Appellant, Case No. 19-11178 (11th Cir.),
the U.S. Court of Appeals for the Eleventh Circuit vacated a
district court order granting Genworth's motion to enjoin TVPX's
Virginia action.
In 2018, TVPX filed an amended class action complaint in the
Eastern District of Virginia against Genworth. The amended
complaint alleged that Genworth had violated the terms of one of
its life insurance policies by imposing inflated "cost of
insurance" or (COI) charges on its insureds. Genworth brought the
action in the Middle District of Georgia, seeking to enjoin TVPX's
Virginia lawsuit and arguing that TVPX's claims were barred by a
2004 agreement settling a prior class action about the same life
insurance policies.
In 2000, Robert McBride filed a putative class action against
Genworth, then known as Life Insurance Co. of Virginia, over the
administration and marketing of its universal life insurance
policies -- McBride v. Life Insurance Co. of Virginia, No.
4:00-cv-217 (M.D. Ga.). The second amended complaint in McBride,
which was the operative complaint when that case settled, alleged
that Genworth deceived customers purchasing universal life policies
by representing that their premiums would remain level, vanish, or
not be required in the future.
In 2004, the parties entered into a settlement agreement that
contained a broad release. A court-approved settlement notice was
sent to the McBride class members. No class members objected to
the settlement, and only 652 of over 350,000 total class members
opted out. The final judgment, which adopted the McBride
settlement, said the terms of the settlement would be forever
binding on the Plaintiffs, all other Class Members and all
Releasors, and will have res judicata and other preclusive effect
in all pending and future claims, lawsuits or other proceedings to
the extent those claims, lawsuits or other proceedings involve
matters that were or could have been raised in this Action or are
otherwise encompassed by the Release.
Also relevant to the appeal, the McBride settlement provided that
nothing in the Agreement will prevent Genworth from increasing any
Class Member's monthly policy deductions (i.e., the monthly cost of
insurance charges and expenses of the Class Policy) in accordance
with Pre-Settlement Policy Administration.
TVPX purchased a Genworth life insurance policy for Lucius Whitaker
in 2017. The policy was originally issued in 1984, with Arlene
Whitaker as the policy owner and Lucius Whitaker as the insured.
In 2018, TVPX filed a putative class action against Genworth in the
Eastern District of Virginia, alleging that Genworth had breached
its insurance policies by failing to calculate COI rates in
accordance with mortality expectations.
TVPX amended its complaint, and the new complaint largely mirrored
its original complaint, with two key differences. First, the
amended complaint narrowed the class period to the five years
leading up to the amended complaint, i.e. from 2013 through 2018.
Second, TVPX deleted its allegation that Genworth had left its COI
rates unchanged for decades, and instead charged that Genworth
actually increased its COI rates from 2013 through 2018, even
though mortality expectations improved during that same time
period.
After TVPX filed its original complaint, Genworth filed a motion to
dismiss and a motion to stay in the Eastern District of Virginia.
At the same time, Genworth filed a motion in the Middle District of
Georgia seeking to enjoin TVPX's Virginia action under the All
Writs Act. In its motion to enjoin, Genworth argued that TVPX's
complaint was precluded by the 2004 settlement and release because
the two cases arose from the same factual predicate. Separately,
Genworth filed a motion for leave to file a counterclaim against
TVPX for breaching the McBride settlement's covenant not to sue.
TVPX made two arguments in response to Genworth's motion to
enforce. First, it said the PSPA "carves out" a class member's
right to bring the claims raised in TVPX's complaint by requiring
Genworth to administer a Class Member's Class Policy in accordance
with the terms of such policy. And second, TVPX argued that the
McBride complaint could not preclude TVPX's complaint because the
McBride action targeted disparate rights, duties, and time frames
creating different facts and legal conclusions.
The District Court granted Genworth's motion to enjoin on res
judicata grounds. It found that TVPX's Virginia complaint was
premised on a continuation of the same conduct that was at issue in
McBride. If Genworth was engaging in the same conduct in 2004, the
District Court reasoned, then TVPX's complaint was necessarily
precluded by the McBride settlement and judgment. The District
Court rejected TVPX's argument that its claims were preserved by
the PSPA. It found to the contrary that the PSPA allowed Genworth
to "continue what it had been doing" with regard to monthly
deductions such as cost of insurance. Finally, the District Court
denied Genworth's motion for leave to file a counterclaim on
futility grounds.
The appeal followed. TVPX says its claims arise from a different
factual predicate than the claims in McBride, and thus are not
barred by res judicata. Alternatively, TVPX says the District
Court order turned on the impermissible factual finding that
Genworth was engaged in the same conduct during the McBride action.
TVPX argues that because there was no evidence supporting such a
finding, the Court must, at a minimum, remand for discovery on that
issue. Second, TVPX says the PSPA expressly reserved TVPX's right
to bring claims raised in its complaint. Genworth responds that
TVPX's complaint is not only barred under res judicata, but also by
a straightforward application of the McBride release.
The Eleventh Circuit finds that at issue in the appeal are
Genworth's flexible premium, universal life insurance policies. A
universal policy is a type of life insurance that, in addition to
paying out a death benefit, includes an interest-bearing account
that builds cash value during the insured's life. Policyholders
can pay premiums into their account to add to the cash value, and
Genworth draws monthly deductions from the account's cash value.
So long as the cash value is high enough to cover the following
month's deductions, the policy remains in force.
If the cash value is insufficient to cover the next month's
deductions, the policy lapses unless the policyholder pays a
premium that covers the deficit. Relevant in the appeal, one of
Genworth's monthly deductions is a "cost of insurance" charge
("COI"), which, according to Genworth's policy terms, is determined
according to expectations of future mortality. Often referred to
as a "mortality charge," COI is intended to compensate life
insurers for the risk that the insured will die in a given policy
year. COI rates are recalculated by Genworth on a monthly basis.
The Eleventh Circuit finds that the McBride complaint, settlement,
and class notice, when taken together, establish that McBride was
not limited only to Genworth's marketing practices. Rather, it
encompassed an "overarching scheme of fraud and deception that
extended to the manner in which Genworth administered various
aspects of its universal life policies, including COI. Precisely
the same primary right and duty are at issue in TVPX's action.
And, because the record is not sufficient to support a finding that
Genworth's COI-related practices have remained unchanged since the
McBride action, the District Court abused its discretion in so
finding. Where the record at the pleading stage was insufficient
to determine whether a prior action bars a current complaint under
res judicata, the Court has remanded to the district court for
further factual development. Consistent with that past practice,
the Eleventh remands to the District Court for limited discovery on
whether Genworth has in any way changed how it calculates and
charges COI since the McBride settlement.
Finally, the Eleventh Circuit addresses TVPX's argument that the
PSPA expressly reserved its claims by requiring Genworth to
"administer a Class Member's Class Policy in accordance with the
terms of such policy. TVPX's reading of that clause -- as
preserving a class member's right to sue Genworth for any alleged
breach of its universal life policy -- is a strained one. The
Eleventh Circuit concludes instead that the PSPA merely preserves
Genworth's right to administer its policies in the same manner as
it had before the McBride settlement.
To the extent the PSPA says Genworth will administer policies in
accordance with the terms of such policy, the rest of the PSPA
makes clear that those "terms" refer to Genworth's right to
continue charging monthly deductions and to lapse a policy if the
policyholder does not cover the monthly deductions. Whether
Genworth was permitted to impose monthly deductions on its
policyholders (and whether the failure to pay those deductions
would result in the cancellation of a policy) was a central dispute
in McBride, and the PSPA appears to resolve it in Genworth's favor.
When read in its entirety, therefore, the PSPA does not constitute
a preservation of rights, but instead clarifies that Genworth may
continue administering its policies in the same manner that it did
before the settlement.
For these reasons, the Eleventh Circuit vacated the District
Court's order enjoining TVPX's complaint. The Eleventh Circuit
remanded for further factual development of whether Genworth has in
any way altered how it calculates or charges COI since the McBride
settlement.
A full-text copy of the Eleventh Circuit's May 26, 2020 Opinion is
available at https://is.gd/H2gthN from Leagle.com.
GLOBALSCAPE INC: Thompson Challenges Acquisition by Help/Systems
----------------------------------------------------------------
JOHN THOMPSON, Individually and On Behalf of All Others Similarly
Situated v. GLOBALSCAPE, INC., ROBERT ALPERT, THOMAS E. HICKS,
DAVID L. MANN, C. CLARK WEBB, HELP/SYSTEMS, LLC, and GRAIL MERGER
SUB, INC., Case No. 1:20-cv-01039-UNA (D. Del., Aug. 4, 2020),
stems from a proposed transaction announced on July 20, 2020,
pursuant to which GlobalSCAPE will be acquired by Help/Systems, LLC
and Grail Merger Sub.
On July 19, 2020, GlobalSCAPE's Board of Directors caused the
Company to enter into an agreement and plan of merger with
Help/Systems. Pursuant to the terms of the Merger Agreement, Merger
Sub commenced a tender offer to purchase all of GlobalSCAPE's
outstanding common stock for $9.50 per share in cash. The Tender
Offer is set to expire on August 27, 2020.
On July 31, 2020, the Defendants filed a
Solicitation/Recommendation Statement with the United States
Securities and Exchange Commission in connection with the Proposed
Transaction.
According to the complaint, the Solicitation Statement omits
material information with respect to the Proposed Transaction,
which renders the Solicitation Statement false and misleading. The
Plaintiff contends that the Solicitation Statement fails to
disclose: (i) all line items used to calculate EBITDA and Adjusted
EBITDA; (ii) projected cash flows and all underlying line items;
(iii) a reconciliation of all non-GAAP to GAAP metrics; and (iv)
the "earlier version of the Projections which was based on certain
assumed numbers for the quarter ended June 30, 2020 [that] was
circulated to the Company Board." Accordingly, the Plaintiff
alleges that the Defendants violated Sections 14(e), 14(d), and
20(a) of the Securities Exchange Act of 1934 in connection with the
Solicitation Statement.
The disclosure of projected financial information is material
because it provides stockholders with a basis to project the future
financial performance of a Company, and allows stockholders to
better understand the financial analyses performed by the Company's
financial advisor in support of its fairness opinion, the Plaintiff
says.
The Plaintiff owns GlobalSCAPE common stock.
GlobalSCAPE secures and automates the movement and integration of
data in, around, and outside organizations in and out of the cloud.
Founded in 1996, the Company's data exchange and integration
software and cloud services are used by thousands of customers
worldwide, including global enterprises, governments, and small and
medium enterprises.[BN]
The Plaintiff is represented by:
Gina M. Serra, Esq.
Brian D. Long, Esq.
RIGRODSKY & LONG, P.A.
300 Delaware Avenue, Suite 1220
Wilmington, DE 19801
Telephone: (302) 295-5310
Facsimile: (302) 654-7530
E-mail: bdl@rl-legal.com
gms@rl-legal.com
- and -
Richard A. Maniskas, Esq.
RM LAW, P.C.
1055 Westlakes Drive, Suite 300
Berwyn, PA 19312
Telephone: (484) 324-6800
Facsimile: (484) 631-1305
E-mail: rm@maniskas.com
GODIVA CHOCOLATIER: Court Narrows Claims in Hesse Class Suit
------------------------------------------------------------
In the case, Steve Hesse, et al., Plaintiffs, v. Godiva
Chocolatier, Inc., et al., Defendants, Case No. 19-cv-972 (AJN)
(S.D. N.Y.), Judge Alison J. Nathan of the U.S. District Court for
the Southern District of New York granted in part and denied in
part Godiva's motion to dismiss.
The putative class action concerns Godiva Chocolatier's use of the
representation "Belgium 1926" on its chocolate products made and
sold in the United States. The Plaintiffs allege that that
representation led them to purchase Godiva's chocolates products
believing that they were made in Belgium -- when they are in fact
made in Pennsylvania. They therefore contend that the
representation violates New York and California consumer-protection
laws, express and implied warranties, and several common-law
guarantees.
Godiva, a chocolate manufacturer, places the representation
"Belgium 1926" prominently on the front packaging of all the Godiva
chocolates. Godiva also extensively utilizes the Belgium 1926
representation across its entire marketing campaign, such as on its
Godiva storefronts, supermarket display stands, and print and
social media advertising.
The Plaintiffs also include examples of Godiva's online,
storefront, in-store, and social-media advertising, all of which
contain the Belgium 1926 representation. The crux of the case is
that despite these representations, Godiva's chocolates have all
been made in Reading, Pennsylvania during the relevant time period.
None of the Godiva Chocolates are made in Belgium.
Plaintiff Hesse is a citizen of New York, and Plaintiff Adam
Buxbaum a citizen of California. Because of the Belgium 1926
representation, they purchased Godiva chocolates believing that
they were purchasing chocolate made in and imported from Belgium.
They would not have purchased the products, or would not have paid
as high a price, had they known the chocolate was made in the
United States.
In support of that assertion, the Plaintiffs point to tangible and
intangible differences in reputation and ingredients between
American and Belgian chocolates. For example, they note that
Belgium is widely understood and recognized as producing among the
highest quality chocolates in the world. And they assert that
American chocolate differs in taste from that produced in Belgium,
due to the use of different butters, creams, and alcohol.
Nonetheless, the Plaintiffs wish to and are likely to continue
purchasing the Godiva Chocolates in the future. Without a change
in Godiva's labeling, they will be unable to rely with confidence
on Godiva's representations in the future and will therefore
abstain from purchasing the Products.
The Plaintiffs filed the action in January 2019. In their Amended
Complaint, the Plaintiffs aver that they bring the action on behalf
of four putative classes: First, a nationwide subclass, defined as
all persons in the United States who, within the relevant statute
of limitations period, purchased any of the Godiva Chocolates.
Second, a New York subclass, defined as all such persons who
purchased any of the Godiva Chocolates for personal, family, or
household purposes in the state of New York. Third, a California
subclass, defined as all persons who purchased any of the Godiva
chocolates in the state of California. And fourth, a California
Consumer subclass, defined as all such persons who purchased any of
the Godiva chocolates for personal, family, or household purposes
in the state of California.
The Plaintiffs assert claims for these respective subclasses under
New York and California state laws. They assert the following
claims: (1) violation of New York General Business Law ("GBL")
Section 349, (2) violation of New York GBL Section 350, (3) breach
of express warranty under New York law, (4) breach of implied
warranty under New York law, (5) violation of California's Consumer
Legal Remedies Act, (6) violation of California's Unfair
Competition Law, (7) violation of California's False Advertising
Law, (8) breach of express warranty under California law, (9)
breach of implied warranty under California law, (10) common-law
fraud, (11) intentional misrepresentation, (12) negligent
misrepresentation, (13) "Quasi Contract/Unjust
Enrichment/Restitution."
In April 2019, Godiva moved to dismiss the Amended Complaint and
requested that the Court take judicial notice of certain documents.
Godiva argued that the Plaintiffs lack standing for injunctive
relief, warranting dismissal in part for lack of subject-matter
jurisdiction under Rule 12(b)(1). And Godiva argued that the
Plaintiffs had failed to state any of their claims, warranting
complete dismissal under Rule 12(b)(6).
Judge Nathan granted in part and denied in part Godiva's motion to
dismiss. The following claims survive: (1) violation of New York
GBL Section 349, (2) violation of New York GBL Section 350, (3)
violation of California's Consumer Legal Remedies Act, (4)
violation of California's Unfair Competition Law, (5) violation of
California's False Advertising Law, (6) breach of express warranty
under New York law; (7) breach of express warranty under California
law, and (8) breach of implied warranty under New York law.
Moreover, the Plaintiffs lack standing to seek injunctive relief in
the matter.
Among other things, the Plaintiffs bring claims under the New York
General Business Law and California's Legal Remedies Act, Unfair
Competition Law, and False Advertising Law. These claims boil down
to the same inquiry: whether a reasonable consumer is likely to be
deceived by the alleged misrepresentation. And Godiva advances a
single argument for why dismissal is warranted under these
statutes: no reasonable consumer could be deceived by the "Belgium
1926" representation to believe that Godiva's chocolates are
manufactured in Belgium. The Judge concludes that she cannot make
the determination at the motion-to-dismiss stage.
The Plaintiffs further allege that Godiva breached express and
implied warranties under both New York and California law. Most of
these claims also survive Godiva's motion to dismiss. Godiva
conflates its perception of the Belgium Representation with that of
a reasonable consumer.
The Plaintiffs' unjust-enrichment claim is entirely duplicative of
their twelve other theories of recovery. It relies on the same
factual allegations and the same theory of liability. It is
plainly insufficient, the Court opines.
A full-text copy of the District Court's May 29, 2020 Opinion &
Order is available at https://is.gd/eMu2C4 from Leagle.com.
GOOGLE: Dec. 2 Class Certification Hearing Set in Gender Pay Suit
-----------------------------------------------------------------
Malathi Nayak, writing for Bloomberg News, reports that four female
former employees of Alphabet Inc.'s Google are trying to persuade a
state court to let them represent more than 10,000 peers in a
gender-pay disparity suit against the company, setting the stage
for the next big battle over class-action status.
Google paid women approximately $16,794 less per year than "the
similarly-situated man," the women said in a filing on July 21,
citing an analysis by David Neumark, an economist at the University
of California, Irvine. "Google paid women less base salary, smaller
bonuses, and less stock than men in the same job code and
location," they said.
The women claim the pay differences violate California's Equal Pay
Act. According to the lawsuit, Google also violated the state's
Unfair Competition Law with a policy from 2011 to 2017 of asking
job candidates for prior salaries, perpetuating lower pay and
seniority for women. They want a San Francisco Superior Court judge
to let them sue on behalf of all women who have worked at Google in
California since Sept. 14, 2013.
A class certification hearing is set for Dec. 2.
Granting the women class status would raise the stakes for Google.
Based on Neumark's analysis, a class action could seek more than
$600 million in damages.
Google analyzes pay every year to make sure salaries, bonuses and
equity awards are fair, Eileen Naughton, Vice President, People
Operations, said in an emailed statement.
"If we find any differences in proposed pay, including between men
and women, we make upward adjustments," Naughton said. "Last year,
we made upward adjustments for 2% of employees, across every
demographic category, totaling $5.1 million."
She said the claims in the lawsuit were "unfounded" and the company
would defend its policies and practices.
The women sued Google in 2017. The company sought to dismiss the
case but a judge denied the request in 2018.
James Finberg, the lawyer for the plaintiffs, is also representing
three female Oracle Corp. employees who in May won class
certification for a gender-discrimination lawsuit over unequal pay.
On the other hand, female engineers were denied class-action status
in similar cases filed in 2015 against Twitter Inc. and Microsoft
Corp.
The case is Ellis v. Google Inc., CGC-17-561299, California
Superior Court, San Francisco County [GN]
GRACO CHILDREN'S: Davis-Berg Sues Over Defective Booster Seats
--------------------------------------------------------------
ELIZABETH DAVIS-BERG, individually, and on behalf of all others
similarly situated v. GRACO CHILDREN'S PRODUCTS, INC. and NEWELL
BRANDS DTC, INC., Case No. 1:20-cv-03095-LMM (N.D. Ga., July 24,
2020), alleges that the Defendants violated state consumer statutes
and the common law for their misleading marketing of, and sale of,
poorly-designed, mislabeled, and defective booster seats to the
Plaintiff and other unsuspecting consumers.
At issue in this case are Graco's TurboBooster Highback Car Seat
and Graco's AFFIX Youth Booster Seat, which are high back booster
seats that Graco has marketed as safe for children who weigh as
little as 30 pounds. But the Plaintiff contends that Graco has
known since as early as 2002 that the Booster Seats are not safe
for any child weighing less than 40 pounds.
Ms. Davis-Berg purchased Graco's TurboBooster LX Seat for her child
in January 2020.
Graco manufactures and markets children's products, including
infant car seats, booster seats, infant strollers, portable play
yards, swings, activity centers, highchairs, and other indoor and
outdoor infant products.[BN]
The Plaintiff is represented by:
David J. Worley, Esq.
James M. Evangelista, Esq.
Kristi Stahnke McGregor, Esq.
EVANGELISTA WORLEY, LLC
500 Sugar Mill Road, Suite 245A
Atlanta, GA
Telephone: (404) 205-8400
E-mail: david@ewlawllc.com
jim@ewlawllc.com
kristi@ewlawllc.com
- and -
Matthew M. Guiney, Esq.
Carl V. Malmstrom, Esq.
WOLF HALDENSTEIN ADLER
FREEMAN & HERZ LLP
270 Madison Ave.
New York, NY 10016
Telephone: (212) 545-4600
E-mail: guiney@whafh.com
malmstrom@whafh.com
H & M HENNES: Settlement in Lao Employees Suit Has Prelim. Approval
-------------------------------------------------------------------
Judge Edward J. Davila of the U.S. District Court for the Northern
District of California granted preliminary approval of the class
settlement in the case, SER LAO, as an individual and on behalf of
all others similarly situated, Plaintiffs, v. H & M HENNES &
MAURITZ, L.P., a New York limited partnership; and DOES 1 through
50, inclusive, Defendants, Case No. 5:16-cv-333 EJD (N.D. Cal.).
Jude Davila preliminarily approved the Agreement in the case as
appearing on its face to be fair, reasonable, and adequate and to
have been the product of serious, informed, and extensive
arm's-length negotiations among the Parties.
The Judge conditionally certified the Settlement Class defined as
the following:
All non-exempt retail store employees who were employed by the
Defendant in the State of California at any time during the
Settlement Class Period (Jan. 8, 2013, through Oct. 31, 2019).
The Settlement Class is conditionally certified pursuant to
Fed. R. Civ. P. 23(e).
Larry W. Lee, Kristen M. Agnew, Nicholas Rosenthal, Max W. Gavron,
Kwanporn "Mai" Tulyathan of Diversity Law Group, William L. Marder
of Polaris Law Group, and Dennis S. Hyun of Hyun Legal are
appointed as Class Counsel for the Settlement Class.
Ser Lao is approved as the Class Representative for the Settlement
Class Members.
Phoenix Settlement Administrators is appointed as the Claims
Administrator for the purposes of the settlement.
The Final Approval and Fairness Hearing is set for Oct. 15, 2020,
at 9:00 a.m.
The form of Class Notice is also approved. No later than 21
calendar days after the Preliminary Approval Date, the Defendant
will provide the Claims Administrator with the Class List and Data
for purposes of preparing and mailing the Notice Packets to the
Settlement Class Members. The Class List and Data will be
confidential. The Claims Administrator will not provide the Class
List and Data to the Class Counsel or the Plaintiff or any third
party, or use the Class List and Data or any information contained
therein for any purpose other than to administer the Settlement.
The Judge approved the proposed Response Deadline of 45 calendar
days from the initial mailing of the Notice Packet. He approved
the proposed procedure for opting out of the Settlement Class. All
reasonable costs of settlement and claims administration, including
the mailing of Class Notice, will be paid for as provided in the
Agreement.
A full-text copy of the District Court's May 29, 2020 Order is
available at https://is.gd/eZfkC7 from Leagle.com.
DIVERSITY LAW GROUP, P.C., Larry W. Lee -- lwlee@diversitylaw.com
-- Kristen M. Agnew -- kagnew@diversitylaw.com -- Nicholas
Rosenthal, Max W. Gavron, Kwanporn "Mai" Tulyathan, Los Angeles,
CA, Attorneys for Plaintiff and the Class, Additional Counsel on
Next Page.
HERSHA HOSPITALITY: Schaefer Suit Seeks to Certify Class Action
---------------------------------------------------------------
In class action lawsuit captioned as BARBARA SCHAEFER,
individually, and on behalf of all others similarly situated, v.
HERSHA HOSPITALITY MANAGEMENT, L.P., Case No. 2:20-cv-02980-JFW-AFM
(C.D. Cal.), the Plaintiff will move the Court on August 31, 2020,
for an order certifying two classes:
Personal Injury Class:
"all individuals who visited the Courtyard Los Angeles
Westside Hotel to attend the "Land Owners Workshop" on
September 21, 2019"; and
Injunctive Relief Class:
"all individuals who visited the Courtyard Los Angeles
Westside Hotel to attend the "Land Owners Workshop" on
September 21, 2019."
This case presents a simple question: Should a hotel be allowed to
spray toxic chemicals on unsuspecting patrons when they enter the
building? When dozens of people are impacted by this practice all
at once because they are breathing the same air, those people
should be able to band together to bring one action to address this
harmful practice. The lawsuit contends the commonality between this
group of people is also simple: they were all present at the hotel
and breathing the same air. This simple fact, the lawsuit asserts,
is what makes this action perfect for class treatment under Fed. R.
Civ. P. 23(b)(2) and 23(b)(3) insofar as common questions
predominate and a class action is superior to other methods of
resolving the issues in dispute.
On September 21, 2019, Representative Plaintiff and the Class
Members entered the Courtyard Los Angeles Westside Marriott hotel
in order to attend a seminar hosted by Blu Homes. When entering the
hotel, Representative Plaintiff was immediately accosted with
chemical fragrances, which Defendant distributed through the hotel
using the HVAC system. Representative Plaintiff had an immediate
physical reaction to the fragrance and was ultimately forced to
leave the building to avoid further exposure. Representative
Plaintiff has since been unable to return to the hotel because of
the barrier of this fragrance program.
HHM provides hotel management, investment, and development
services. The Company offers asset management, operations, sales
and marketing, centralized accounting and reporting, project
management, facility, utilities support, and asset protection
services.[CC]
Attorneys for Representative Plaintiff and the Plaintiff Classes
are:
Scott Edward Cole, Esq.
Laura Grace Van Note, Esq.
SCOTT COLE & ASSOCIATES, APC
Web: www.scalaw.com
555 12th Street, Suite 1725
Oakland, CA 94607
Telephone: (510) 891-9800
Facsimile: (510) 891-7030
E-mail: scole@scalaw.com
lvannote@scalaw.com
HORNBLOWER GROUP: Cartagena to Recover Gratuities, Spread-of-Hours
------------------------------------------------------------------
Tobias Cartagena, individually and on behalf of all others
similarly situated, Plaintiff, v. Hornblower Group, Inc. and
Hornblower New York, LLC, Defendants, Case No. 20-cv-05334 (S.D.
N.Y., July 10, 2020), seeks to recover mandatory service charges on
the total cost of Hornblower's special events that were not
distributed to non-managerial service employees as required by New
York Labor Law, and spread-of-hours pay for work in excess of 10
hours per shift.
Hornblower operates a chain of dining cruises, as well as
sightseeing and special events operations in New York, including
Hornblower Cruises & Events where Cartagena was employed as a
bartender. [BN]
Fuentes is represented by:
John J. Nestico, Esq.
SCHNEIDER WALLACE COTTRELL KONECKY LLP
6000 Fairview Road, Suite 1200
Charlotte, NC 28210
Tel: (510) 740-2946
Fax: (415) 421-7105
Email: jnestico@schneiderwallace.com
- and -
Carolyn H. Cottrell, Esq.
Ori Edelstein, Esq.
Kristabel Sandoval, Esq.
SCHNEIDER WALLACE COTTRELL KONECKY LLP
2000 Powell Street, Suite 1400
Emeryville, CA 94608
Tel: (415) 421-7100
Fax: (415) 421-7105
Email: ccottrell@schneiderwallace.com
oedelstein@schneiderwallace.com
ksandoval@schneiderwallace.com
- and -
William M. Hogg, Esq.
SCHNEIDER WALLACE COTTRELL KONECKY LLP
3700 Buffalo Speedway, Suite 960
Houston, TX 77098
Tel: (713) 338-2560
Fax: (415) 421-7105
Email: whogg@schneiderwallace.com
HOST HOTELS: Court Dismisses Strojnik's 2nd Amended ADA Lawsuit
---------------------------------------------------------------
In the case, PETER STROJNIK, Plaintiff, v. HOST HOTELS & RESORTS,
INC. dba ANDAZ MAUI AT WAILEA RESORT, Defendant, Civ. No. 19-00136
JMS-RT (D. Haw.), Judge J. Michael Seabright of the U.S. District
Court for the District of Hawaii granted the Defendant's Motion to
Dismiss the Second Amended Complaint for lack of subject-matter
jurisdiction under Federal Rule of Civil Procedure 12(b)(1) or for
failure to state a claim under rule 12(b)(6), without leave to
amend.
On Sept. 17, 2019, pro se Plaintiff Strojnik filed his Second
Amended Complaint on behalf of a class against the Defendant,
alleging that the Hotel is not compliant with the Americans with
Disabilities Act ("ADA") along with various state law claims.
Although Plaintiff is pro se, he is a disbarred lawyer quite
familiar with the judicial system.
The Plaintiff is an "ADA tester" and currently resides in Maricopa
County, Arizona. He is legally disabled by virtue of a severe
right-sided neural foraminal stenosis and formal neuropathy,
prostate cancer and renal cancer, and degenerative right knee and
is therefore a member of a protected class under the ADA and Hawaii
Revised Statutes ("HRS") Chapter 479. The Plaintiff suffers from
physical impairments substantially limiting his major life
activities. He walks with difficulty and pain and requires
compliant mobility accessible features at places of public
accommodation.
The Plaintiff alleges that both third-party booking websites and
the Defendant's first-party website failed to identify and describe
mobility related accessibility features and guest rooms offered
through its reservations service in enough detail for the Plaintiff
to assess whether the Hotel met his accessibility needs. These
websites also failed to make reservations for accessible guest
rooms available in the same manner as individuals who do not need
accessible rooms.
Because these websites failed to identify and describe mobility
related accessibility features and guest rooms in enough detail to
reasonably permit the Plaintiff to assess independently whether the
Hotel meets his accessibility needs, the Plaintiff declined to book
a room there, and because he was unable to make reservations for
accessible guest rooms available in the same manner as individuals
who do not need accessible rooms, the Plaintiff declined to book a
room there.
The Plaintiff alleges he has been deterred from visiting the Hotel
based on his knowledge that the hotel is not ADA or State Law
compliant. He intends to visit the Defendant at a specific time
when the Defendant's non-compliant Hotel becomes fully compliant
with the ADA.
The Plaintiff brings the instant suit as a class action complaint
against Defendant, alleging a sole federal claim of an ADA
violation along with state law claims of violation of HRS Chapter
489, Hawaii's state counterpart to the ADA; non-disclosure;
consumer fraud pursuant to HRS Chapter 480; and negligence per se.
On Feb. 25, 2020, the Defendant filed its motion to dismiss for
lack of subject-matter jurisdiction pursuant to Rule 12(b)(1) and
for failure to state a claim pursuant to Rule 12(b)(6). The
Plaintiff filed his opposition on March 4, 2020. The Defendant
filed its reply on April 27, 2020. It also requests the Court
takes judicial notice ("RJN") of several district court dismissal
orders that are not available on Westlaw, the Plaintiff's
complaints in other cases, the order suspending the Plaintiff's
Arizona bar license, and true and correct copies of various
publicly-accessible government websites.
Judge Seabright finds that the Plaintiff has failed to plead facts
alleging he has standing under the ADA, his sole federal claim. As
a general proposition, to have standing, an ADA plaintiff must
personally encounter at least some barriers, or have personal,
percipient knowledge of the barriers. A plaintiff lacks standing
if the barriers he seeks to enjoin do not pose a real and immediate
threat to him due to his particular disability. Ninth Circuit
caselaw establishes that an ADA plaintiff may establish standing
either by demonstrating injury-in-fact coupled with an intent to
return to a noncompliant facility or demonstrating deterrence. The
Plaintiff has failed to allege standing under either test.
And because Plaintiff has been placed on notice by multiple courts
of these deficiencies, and yet, he has failed to cure them, the
Court holds that granting leave to amend would be futile.
For the foregoing reasons, Judge Seabright granted the Defendant's
Motion to Dismiss without leave to amend. The Clerk of Court is
instructed to close the case file.
A full-text copy of the District Court's May 26, 2020 Order is
available at https://is.gd/E5fqfw from Leagle.com.
INDEPENDENT BANK: Trial in BOH Holdings Merger Suit in May 2021
---------------------------------------------------------------
Independent Bank Group, Inc. said in its Form 10-Q Report filed
with the Securities and Exchange Commission on July 30, 2020, for
the quarterly period ended June 30, 2020, that the parties in the
suit related to the acquisition of BOH Holdings, Inc., have agreed
to amend the scheduling order to push back the trial date to May 6,
2021.
Independent Bank is a party to a legal proceeding inherited by
Independent Bank in connection with the Company's acquisition of
BOH Holdings, Inc. and its subsidiary, Bank of Houston, or BOH,
that was completed on April 15, 2014.
Several entities related to R. A. Stanford, or the Stanford
Entities, including Stanford International Bank, Ltd., or SIBL, had
deposit accounts at BOH. Certain individuals who had purchased
certificates of deposit from SIBL filed a class action lawsuit
against several banks, including BOH, on November 11, 2009 in the
U.S. District Court Northern District of Texas, Dallas Division, in
a case styled Peggy Roif Rotstain, et al. on behalf of themselves
and all others similarly situated, v. Trustmark National Bank, et
al., Civil Action No. 3:09-CV-02384-N-BG.
The suit alleges, among other things, that the plaintiffs were
victims of fraud by SIBL and other Stanford Entities and seeks to
recover damages and alleged fraudulent transfers by the defendant
banks.
On May 1, 2015, the plaintiffs filed a motion requesting permission
to file a Second Amended Class Action Complaint in this case, which
motion was subsequently granted. The Second Amended Class Action
Complaint asserted previously unasserted claims, including aiding
and abetting or participation in a fraudulent scheme based upon the
large amount of deposits that the Stanford Entities held at BOH and
the alleged knowledge of certain BOH officers.
The plaintiffs seek recovery from Independent Bank and other
defendants for their losses.
The case was inactive due to a court-ordered discovery stay issued
March 2, 2015 pending the Court's ruling on plaintiff's motion for
class certification and designation of class representatives and
counsel.
On November 7, 2017, the Court issued an order denying the
plaintiff's motion.
In addition, the Court lifted the previously ordered discovery
stay. On January 11, 2018, the Court entered a scheduling order
providing that the case be ready for trial on January 27, 2020.
Due to agreed upon extensions of discovery on July 25, 2019, the
Court amended the scheduling order to provide that the case be
ready for trial on January 11, 2021.
In light of additional agreed upon extensions of discovery
deadlines, the Court entered a new scheduling order on March 9,
2020, which now provides that the case be ready for trial March 15,
2021.
In light of delays in discovery associated with the COVID-19
pandemic, the parties agreed to amend the scheduling order to move
the trial date to May 6, 2021.
Independent Bank said, "The Company has experienced an increase in
legal fees associated with the defense of this claim and
anticipates further increases in legal fees as the case proceeds to
trial."
Independent Bank Group, Inc. operates as a national commercial
bank. The Bank offers personal and business banking services.
Independent Bank provides personal checking accounts, loans, debit
and credit cards, mobile banking, and investment services.
Independent Bank Group serves customers in the State of Texas. The
company is based in McKinney, Texas.
INFINITY FASTENERS: Rendon Sues Over Retaliation
------------------------------------------------
Eric Rendon, individually on behalf of himself and all others
similarly situated, Plaintiff v. Infinity Fasteners, Inc.,
Defendant, Case No. 20CECG02019 (Cal. Super., July 14, 2020), seeks
to recover back and front pay including damages for emotional
distress, declaratory relief, compensatory damages, including
unpaid wages, in accordance with California Labor Code, civil
penalties, attorneys' fees and costs and such other and further
relief.
Infinity Fasteners hired Rendon as an outside salesperson. From
time-to-time, Rendon also performed work in the warehouse,
fabricating various products. Infinity terminated Rendon on
September 5, 2019 after the latter complained about unsafe working
conditions. [BN]
Plaintiff is represented by:
Michael J.F. Smith, Esq.
John L. Migliazzo, Esq.
MICHAEL J.F. SMITH, A PROFESSIONAL CORPORATION
1391 West Shaw Avenue, Suite D
Fresno, CA 93711
Tel: (559) 229-3900
Fax: (559) 229-3903
JPMORGAN CHASE: Cardholders' Bid to Revive Class Action Suit Denied
-------------------------------------------------------------------
Jane Wester, writing for Law.com, reports that U.S. District Judge
Margo Brodie of the Eastern District of New York has denied a
motion to set aside an earlier ruling in an antitrust class action
suit, finding that a 2018 U.S. Supreme Court ruling changed
decisional law but did not disturb the court's prior reasoning in
the class action case.
Brodie's dismissal is a victory for the defendants including
JPMorgan Chase & Co, which was represented by a Skadden, Arps,
Slate, Meagher & Flom team led by partner Boris Bershteyn. [GN]
KEURIG DR PEPPER: Agreement Reached with Indirect Purchaser Class
-----------------------------------------------------------------
Keurig Dr Pepper Inc. said in its Form 10-Q Report filed with the
Securities and Exchange Commission on July 30, 2020, for the
quarterly period ended June 30, 2020, that Keurig Green Mountain,
Inc. (KGM) has reached an agreement with the putative indirect
purchaser class plaintiffs in the Multidistrict Antitrust
Litigation to settle the claims asserted in their complaint for $31
million.
In February 2014, TreeHouse Foods, Inc. and certain affiliated
entities filed suit against the company's (KDP’') wholly-owned
subsidiary, Keurig Green Mountain, Inc. (KGM), in the U.S. District
Court for the Southern District of New York ("SDNY") (TreeHouse
Foods, Inc. et al. v. Green Mountain Coffee Roasters, Inc. et al).
The TreeHouse complaint asserted claims under the federal antitrust
laws and various state laws, contending that Keurig had monopolized
alleged markets for single serve coffee brewers and single serve
coffee pods.
The TreeHouse complaint sought monetary damages, declaratory
relief, injunctive relief and attorneys' fees. In March 2014, JBR,
Inc. filed suit against KGM in the U.S. District Court for the
Eastern District of California (JBR, Inc. v. Keurig Green Mountain,
Inc.).
The claims asserted and relief sought in the JBR complaint were
substantially similar to the claims asserted and relief sought in
the TreeHouse complaint.
Beginning in March 2014, twenty-seven putative class actions
asserting similar claims and seeking similar relief were filed on
behalf of purported direct and indirect purchasers of KGM's
products in various federal district courts.
In June 2014, the Judicial Panel on Multidistrict Litigation
granted a motion to transfer these various actions, including the
TreeHouse and JBR actions, to a single judicial district for
coordinated or consolidated pre-trial proceedings (the
"Multidistrict Antitrust Litigation").
Consolidated putative class action complaints by direct purchaser
and indirect purchaser plaintiffs were filed in July 2014.
An additional class action on behalf of indirect purchasers,
originally filed in the Circuit Court of Faulkner County, Arkansas
(Julie Rainwater et al. v. Keurig Green Mountain, Inc.), was
transferred into the Multidistrict Antitrust Litigation in November
2015. In January 2019, McLane Company, Inc. filed suit against KGM
(McLane Company, Inc. v. Keurig Green Mountain, Inc.) in the SDNY
asserting similar claims and was also transferred into the
Multidistrict Antitrust Litigation.
These actions are now pending in the SDNY (In re: Keurig Green
Mountain Single-Serve Coffee Antitrust Litigation). Discovery in
the Multidistrict Antitrust Litigation commenced in December 2017.
Separately, a statement of claim was filed in 2014 against KGM and
Keurig Canada Inc. in Ontario, Canada by Club Coffee L.P., a
Canadian manufacturer of single serve beverage pods, claiming
damages of CDN $600 million and asserting a breach of competition
law and false and misleading statements by KGM.
In July 2020, KGM reached an agreement with the putative indirect
purchaser class plaintiffs in the Multidistrict Antitrust
Litigation to settle the claims asserted in their complaint for $31
million.
The settlement class consists of individuals and entities in the
United States that purchased, from persons other than KGM and not
for purposes of resale, KGM manufactured or licensed single serve
beverage portion packs during the applicable class period
(beginning in September 2010 for most states). The agreement
remains subject to court approval, prior to which putative class
members will be given notice and the opportunity to opt out of the
settlement.
KDP intends to vigorously defend the remaining pending lawsuits
brought by Treehouse, JBR, McLane, the putative direct purchaser
class and Club Coffee.
Keurig said, "At this time, the Company is unable to predict the
outcome of these lawsuits, the potential loss or range of loss, if
any, associated with the resolution of these lawsuits or any
potential effect they may have on the Company or its operations."
Keurig Dr Pepper Inc. engages in the brewing system and specialty
coffee businesses in the United States and Canada. The company
sources, produces, and sells coffee, hot cocoa, teas, and other
beverages in K-Cup, Vue, Rivo, K-Carafe, and K-Mug pods brands;
coffee in traditional packaging, including bags and fractional
packs; and other specialty beverages in pods. The company was
founded in 1981 and is based in Waterbury, Vermont. Keurig Dr
Pepper Inc. is a subsidiary of Acorn Holdings B.V.
KNIGHT TRANSPORTATION: Class of Drivers Certified in Sampson Suit
-----------------------------------------------------------------
The U.S. District Court for the Western District of Washington,
Seattle, issued an Order granting the Plaintiffs' Motion for Class
Certification in the case captioned VALERIE SAMPSON and RAYMOND, on
their own behalf and on the behalf of all others similarly situated
v. KNIGHT TRANSPORTATION, INC., an Arizona corporation, KNIGHT
REFRIGERATED, LLC, an Arizona limited liability company, and KNIGHT
PORT SERVICES, LLC, an Arizona limited liability company, Case No.
C17-0028-JCC (W.D. Wash.).
The Plaintiffs bring this putative class action against their
former employers for allegedly violating several Washington wage
and hour laws. The Defendants deliver goods throughout the United
States via local and long-haul trucking routes. Since July 1, 2013,
the start of the proposed class period, the Defendants have
employed more than 500 drivers in Washington across its divisions
and paid Washington-specific taxes for their Washington drivers.
The Court certifies the following class:
"All current and former driver employees of Knight
Transportation, Inc., Knight Refrigerated, LLC, and/or
Knight Port Services, LLC who at any time from July 1, 2013,
through the date of final disposition, worked as drivers
while residing in the state of Washington."
The Court further orders as follows:
1. Plaintiffs Valerie Sampson and David Raymond are DESIGNATED
as class representatives;
2. Terrell Marshall Law Group PLLC and Rekhi & Wolk, P.S. are
APPOINTED as class counsel pursuant to Rule 23(g);
3. Within 14 days from the date of this order, class counsel
shall meet and confer with Defendants concerning notice to
the class pursuant to Federal Rule of Civil Procedure
23(c)(2). The parties shall submit a proposed notice and
notice plan within 30 days of this order, or, if no
agreement is reached regarding the notice and notice plan,
Plaintiffs shall submit a proposed notice and notice plan
by that date;
4. Defendants shall have 10 days from service of the proposed
notice to serve and file any objections to the same; and
5. Class counsel shall have five days from service of any
objection to serve and file a reply to the same.
A full-text copy of the District Court's June 8, 2020 Order is
available at https://is.gd/cOIkhV from Leagle.com.
KRISPY KREME: To Fight Class Action Over Fruit Filling
------------------------------------------------------
John O'Brien, writing for Legal Newsline, reports that Krispy Kreme
is ready to fight a class action lawsuit that claims its fruit
filling contains artificial flavors.
Rather than deal down the road with whether a "reasonable consumer"
would be misled by the claims on Krispy Kreme's glazed apple pie
boxes, the company recently told a federal judge it will be raising
several arguments in a coming motion to dismiss.
Krispy Kreme "believes that addressing these issues at the outset
by way of a motion to dismiss will be efficient and avoid the need
to address other infirmities later, such as class certification,"
attorneys for the company wrote to Judge Gregory Woods on July 16.
Michael Williams filed a class action complaint Dec. 27 in the U.S.
District Court for the Southern District of New York against Krispy
Kreme Doughnut Corp., alleging negligent representation, breach of
express warranty, implied warranty of merchantability and Magnuson
Moss Warranty Act, fraud and unjust enrichment.
Williams alleges that Krispy Kreme's labels on its single-serving
Glazed Apple Pies are misleading. He claims the product's front
labels state they are "made with real fruit filling and other
natural flavors" and use "original glazed flavoring" and do not
disclose that the product has artificial flavoring. The product's
ingredient list does disclose "natural and artificial flavors."
"Consumers expect that where a product identifies 'original glazed
flavoring,' that flavor will be supplied by natural flavors instead
of artificial flavors," the suit states. "However, the product is
misleading because it does not disclose the glazed flavoring is the
result of artificial flavor."
Williams is represented by Spencer Sheehan of Sheehan & Associates
PC in Great Neck, New York.
Krispy Kreme's lawyers say there are several problems with
Sheehan's lawsuit, starting with its New York lead plaintiff
attempting to lead a class of residents of the other 49 states.
They also say the plaintiff misinterprets "made with" to mean "made
exclusively with."
"The labels of the respective products . . . render Plaintiff's
interpretation of the labels as not containing any artificial
flavors objectively unreasonable," the letter says.
"Defendant believes this can be determined on a motion to dismiss,
because it is not plausible to read the label as saying things it
does not say." [GN]
LA CASA BONITA: Davalo Seeks Unpaid Minimum, Overtime Wages
-----------------------------------------------------------
Melesio Davalo, individually and on behalf of others similarly
situated, Plaintiff, v. La Casa Bonita Corp., Casa Dominicana
Outlet Corp., John Doe Amjad, Mohammed Amjad and Kali Amjad,
Defendants, Case No. 20-cv-05331 (S.D. N.Y., July 10, 2020), seeks
to recover unpaid minimum and overtime wages and redress for
failure to provide itemized wage statements pursuant to the Fair
Labor Standards Act of 1938 and New York Labor Law, including
applicable liquidated damages, interest, attorneys' fees and
costs.
Defendants own, operate, or control two merchandise departments in
New York, NY under the names "Casa Bonita" and "Casa Dominicana"
where Davalo was employed as a merchandise stocker. He claims to
have worked in excess of 40 hours per week, without appropriate
minimum wage, overtime and spread of hours compensation for the
hours that he worked. La Casa Bonita also failed to maintain
accurate recordkeeping of the hours worked and failed to pay him
appropriately for any hours worked, either at the straight rate of
pay or for any additional overtime premium. [BN]
Plaintiff is represented by:
Michael Faillace, Esq.
MICHAEL FAILLACE & ASSOCIATES, P.C.
60 East 42nd Street, Suite 4510
New York, NY 10165
Tel: (212) 317-1200
Facsimile: (212) 317-1620
Email: michael@faillacelaw.com
LEND-A-HAND SERVICES: $250,000 Deal in Walburn Gets Prelim Approval
-------------------------------------------------------------------
In the case, MARY WALBURN, et al., Plaintiffs, v. LEND-A-HAND
SERVICES, LLC, Defendants, Case No. 2:19-cv-00711 (S.D. Ohio),
Judge Sarah D. Morrison of the U.S. District Court for the Southern
District of Ohio, Eastern Division, granted the parties' Joint
Motion for Preliminary Approval of Settlement.
The labor case alleges that Defendants Lend-A-Hand and its owner,
Paul Nerswick, unlawfully failed to pay Plaintiffs Walburn,
Johnathan Bailey, Misty Hall, Jill Hollett, Megan Hughes, Allison
Mitchell, Jessica Roth, Joshua Sliker and Brandy Wollard overtime
in violation of the Fair Labor Standards Act ("FLSA"), and the
related Ohio Minimum Fair Wage Standards Act ("OMFWSA").
The Court granted the Plaintiffs' Motion for Conditional Collective
Action Certification and Rule 23 Class Certification on Sept. 3,
2019. That Order conditionally certified the following class under
29 U.S.C. Section 216: "All current and former hourly employees of
Defendants who, during the past three years, did not receive
overtime payment at a rate of one and one-half times their regular
rate of pay for all hours worked in a workweek in excess of 40."
The Order next certified the following OMFWSA class under Fed. R.
Civ. P. 23: All current and former hourly paid employees employed
by Defendant Lend-A-Hand Services, LLC for the time prior including
two years prior to the date of filing of the Complaint through the
date Class Certification is granted or Defendant changes its policy
(whichever is earlier), who did not receive overtime payment at a
rate of one and one-half times their regular rate of pay for all
hours worked in a workweek in excess of 40.
In addition, the Order appointed Mansell Law, LLC as the interim
class counsel under Rule 23(g) and approved the Notice of
Collective Action Lawsuit and the Consent to Join Form. The Notice
and Consent Forms were e-mailed and mailed on Oct. 8, 2019.
Magistrate Judge Abel's Feb. 4, 2020 mediation of the matter
yielded the proposed Settlement Agreement and the instant motion.
The Agreement provides for two classes:
* The "Section 216(b) Class" is defined to include the Class
Representatives and all current and former hourly employee[s] of
Defendant who, during the past three years, did not receive
overtime payment at a rate of one and one-half times their regular
rate of pay for all hours worked in a workweek in excess of 40 and
that filed a Notice of Consent to Sue in the Civil Action on Dec.
31, 2019.
* The "Rule 23 Class" is the second class and includes any and
all persons employed by the Defendant as hourly paid employees at
any time during the period of Feb. 28, 2017 through and including
Sept. 3, 2019 who did not receive overtime payment at a rate of one
and one-half times their regular rate of pay for all hours worked
in a workweek in excess of 40.
The Agreement calls for the Defendants to pay a total common fund
settlement amount of $250,000, which includes the following
distribution: (1) $80,876.96 for settlement award payments to the
Section 216(b) Class; (2) $80,039.71 in settlement award payments
to the Rule 23 Class; (3) $5,750 for service payments to the Class
Representatives in the amounts set forth in Exhibit A to the
Agreement; (4) $83,333 for payment of the Class Counsel's fees.
The fees are contingent upon Court approval. Each Section 216(b)
class member will receive a payment equal to approximately 150% of
the overtime compensation allegedly due. Each Rule 23 Class Member
will receive a payment equal to approximately 50% of the total
overtime compensation allegedly due. The Defendant has also agreed
to eliminate its allegedly unlawful overtime pay policy. That
serves as therapeutic relief.
The parties agree on two separate notices being mailed to the
respective class members -- one for the Section 216(b) Class and
the other for the Rule 23 Class. The differing Notices are
required because some class members only qualify for one class.
Each Notice details the reason for the notice and provides an
explanation for the lawsuit. Both detail how to object to the
Agreement and give Class Counsels' contact information. The
Section 216(b) Notice explains the recipient's options under the
Agreement. The Rule 23 Notice summarizes the benefits and the
terms of the Agreement and indicates how to opt-out of the
Agreement. The Rule 23 Notice contains a release form and
indicates that it must be returned by a listed date in order to
participate in the Agreement. The Notices will be sent via U.S.
Mail.
Accordingly, Judge Morrison granted the parties' Joint Motion for
Order Preliminarily Approving 216(B) and Rule 23 Settlement.
Judge Morrison preliminarily certified the following Section 216(b)
class: Class Representatives and all current and former hourly
employee[s] of the Defendant who, during the past three years, did
not receive overtime payment at a rate of one and one-half times
their regular rate of pay for all hours worked in a workweek in
excess of 40 and that filed a Notice of Consent to Sue in the Civil
Action on or before Dec. 31, 2019.
The Judge also preliminarily certifies the following Rule 23 class:
Any and all persons employed by the Defendant as hourly paid
employees at any time during the period of Feb. 28, 2017 through
and including Sept. 3, 2019 who did not receive overtime payment at
a rate of one and one-half times their regular rate of pay for all
hours worked in a workweek in excess of 40.
Plaintiffs Plaintiffs Mary Walburn, Johnathan Bailey, Misty Hall,
Jill Hollett, Megan Hughes, Allison Mitchell, Jessica Roth, Joshua
Sliker and Brandy Wollard are appointed as Class Representatives of
the Rule 23 Class. Attorney Greg Mansell and his firm are
appointed as the Class Counsel for the Rule 23 Class pursuant to
FED. R. CIV. P. 23(g). Analytics Consulting LLC is appointed as
the Settlement Administrator.
The two Notices was to be corrected to indicate that the final
approval hearing will take place in courtroom 132, not room 121; to
provide contact information for Analytics Consulting; to clarify
that objectors may appear at the final approval hearing for
purposes of objecting only if they first timely file a written
objection; and to state that the Court cannot provide legal
advice.
The Court approved the form and substance of the two Notices
attached to the Settlement Agreement with the noted alterations.
The Court further approved the distribution of the two Notices via
First-Class United States Mail as valid, due, and sufficient notice
to Settlement Class Members pursuant to § 216(b) and FED. R. CIV.
P. 23(c)(2)(B). The Court approved the settlement procedure and
timeline set forth in the Agreement.
The Court will conduct a Final Approval Hearing on Aug. 14, 2020 at
1:30 p.m. at 85 Marconi Boulevard, courtroom 132, Columbus, Ohio,
43215.
A full-text copy of the District Court's May 26, 2020 Opinion &
Order is available at https://is.gd/kHbdOa from Leagle.com.
LIVENT CORPORATION: Central Laborers Appeal Decision to 3rd Cir.
----------------------------------------------------------------
The Lead Plaintiffs in the case styled In re: LIVENT CORPORATION
SECURITIES LITIGATION, Case No. 2:19-cv-02218-CFK (E.D. Pa.), on
behalf of themselves and all others similarly situated, appeal to
the United States Court of Appeals for the Third Circuit from the
Memorandum Opinion and Order entered on July 2, 2020, dismissing
with prejudice their Corrected Consolidated Amended Complaint.
The Court has found that the Plaintiffs have not plausibly alleged
a violation of Section 11 or 12(a)(2), the Plaintiffs have also
necessarily failed to plausibly allege that any "controlled person
or entity committed a primary violation of the securities laws."
Therefore, the Court finds that the Plaintiffs have failed to
plausibly state a claim for violation of Section 15 of the Act. The
Court grants the Defendants' Motion to Dismiss and dismisses the
complaint in its entirety.
The Lead Plaintiffs filed the underlying securities class action
lawsuit against Livent, its officers and directors, the
underwriters of Livent's Initial Public Offering, and Livent's
controlling shareholder, FMC Corporation, alleging violations of
the Securities Act of 1933. The Plaintiffs allege in the Corrected
Consolidated Amended Complaint that that the Defendants made false
and misleading statements and omissions in the registration
statement and prospectus filed with the Securities and Exchange
Commission in connection with Livent's October 2018 initial public
offering.
The Lead Plaintiffs are Central Laborers' Pension Fund and New York
Hotel Trades Council & Hotel Association of New York City, Inc.
Pension Fund.
Livent Corp is a lithium company. The Company is focused on
producing performance lithium compounds. The Company's primary
products include battery-grade lithium hydroxide, butyllithium and
high purity lithium metal.[BN]
The Lead Plaintiffs are represented by:
Laurie L. Largent, Esq.
Jennifer N. Caringal, Esq.
The ROBBINS GELLER RUDMAN & DOWD LLP
655 West Broadway, Suite 1900
San Diego, CA 92101
Telephone: 619/231-1058
Facsimile: 619/231-7423
E-mail: llargent@rgrdlaw.com
jcaringal@rgrdlaw.com
- and -
Maarc S. Henzel, Esq.
LAW OFFICES OF MARC S. HENZEL
230 Old Lancaster Road, Suite B
Merion Station, PA 19066
Telephone: 610/660-8000
Facsimile: 610/660-8080
E-mail: mhenzel@henzellaw.com
- and -
John T. Long, Esq.
CAVANAGH & O'HARA
2319 West Jefferson Street
Springfield, IL 62702
Telephone: 217/544-1771
Facsimile: 217/544-9894
LYFT INC: Removes Rides by Spying Through App, Douglass Claims
--------------------------------------------------------------
LISA DOUGLASS and OTHERS SIMILARLY SITUATED v. LYFT INC., JOHN
ZIMMER; LOGAN GREEN; and ALDY DAMIAN, Case No. 2:20-cv-06526-RGK-E
(W.D. Cal., July 22, 2020), is brought on behalf of the Plaintiff
and all other current and former Lyft drivers in California,
seeking to recover lost wages, unfair withholding of insurance
while in an accident on the platform, and recoupment of monies
taken by Lyft's spy policy to cancel rides and limit earnings.
The Plaintiff contends that Lyft's practice of spying through its
App to pick and choose if a customer can get a ride using the App
is an unfair discriminatory practice.
The Plaintiff is a driver for Lyft.
Lyft is an American ridesharing company based in San Francisco,
California, and operating in 644 cities in the United States and 12
cities in Canada. Lyft develops, markets, and operates the Lyft
mobile app, offering car rides, scooters, a bicycle-sharing system,
and a food delivery.
The Plaintiff appears pro se.[BN]
MARYLAND: Court Grants Prelim. Injunction in Miranda ICE Suit
-------------------------------------------------------------
In the case, MARVIN DUBON MIRANDA, et al., v. WILLIAM P. BARR, et
al, Civil No. 20-1110 (D. Md.), Judge Catherine C. Blake of the
U.S. District Court for the District of Maryland granted the Lead
Petitioners' motion for a temporary restraining order and/or a
preliminary injunction.
Immigration and Customs Enforcement (ICE) detainees Miranda,
Ajibade Thompson Adegoke, and Jose de la Cruz Espinoza ("Lead
Plaintiffs") filed a class action complaint and petition for writ
of habeas corpus contesting the adequacy of the bond hearings that
resulted in their detention. The Lead Plaintiffs and the members
of the proposed class are detained under 8 U.S.C. Section 1226(a),
the provision of the Immigration and Nationality Act ("INA") that
governs the arrest and detention of noncitizens pending a decision
on removal.
The Lead Plaintiffs bring the class action on behalf of themselves
and all people who are or will be detained under 8 U.S.C. Section
1226(a), and had or will have a bond hearing before the Baltimore
Immigration Court in Baltimore, Maryland. At bond hearings held in
Baltimore Immigration Court, a non-citizen seeking release on bond
bears the burden of proving that she is neither a danger to the
community nor a flight risk. Moreover, there is no requirement
that Immigration Judges (IJs) in the Baltimore Immigration Court
consider an individual's ability to pay when setting bond amounts,
which are frequently set between $8,000 and $15,000 and -- unlike
in the criminal context -- must be paid upfront and in full.
On behalf of themselves and all members of the proposed class, the
Lead Plaintiffs bring two claims for relief. In Count One, they
allege that Fifth Amendment due process is violated when the
government detains individuals under Section 1226(a) absent the
following procedures: (1) a bond hearing where the government bears
the burden to justify continued detention by proving by clear and
convincing evidence that the individual is a flight risk or a
danger to others; and (2) an assessment of an individual's ability
to pay bond and the suitability of alterative conditions of
release. Because the Lead Plaintiffs, and all members of the
proposed class, are or will be detained without receiving a bond
hearing with these basic requirements, they allege that their
detention violates the Fifth Amendment.
In Count Two, they allege that their detention also violates the
Immigration and Nationality Act ("INA") because a correct
interpretation of Section 1226(a) requires that the government
adequately consider detained individuals' financial circumstances
and whether alternative non-monetary conditions of release would
sufficiently mitigate flight risk.
The Lead Plaintiffs seek class certification, declaratory relief,
and an order that each member of the class be released unless
provided with a new bond hearing.
On May 5, 2020, the Lead Plaintiffs filed a motion for a TRO and/or
a preliminary injunction, asking the Court to immediately order new
bond hearings that (1) shift the burden of proof to the government
to demonstrate, by clear and convincing evidence, that a noncitizen
is a flight risk or poses a danger to the community; and (2)
consider a noncitizen's ability to pay bond and suitability for
alternative conditions of release. They assert that they are
likely to succeed on the merits of the class action complaint, and
that they will suffer irreparable harm if the court declines to
impose a TRO or preliminary injunction. They argue that continued
detention pursuant to procedurally flawed bond hearings in itself
constitutes irreparable harm, but also that the threat of
irreparable harm is especially severe in light of the COVID-19
pandemic.
In response, the Defendants first argue that the Court does not
have jurisdiction over the Lead Plaintiffs' claims because (i) they
failed to exhaust their administrative remedies, and (ii) 8 U.S.C.
Sections 1226(e) and 1252(a)(2)(B) strip the district court of
jurisdiction to review discretionary judgments of the Baltimore
Immigration Court. The Defendants also contend that the Lead
Plaintiffs' claims fail to make the required showing to justify
imposition of a TRO or preliminary injunction.
As an initial matter, Judge Blake considers the impact of Mr. Dubon
Miranda's and Mr. Thompson's release from detention. As they have
been released from ICE custody, their claims for injunctive relief
are now moot. The mootness of Mr. Dubon Miranda's and Mr.
Thompson's claims does not, of course, affect Mr. de la Cruz
Espinoza's claims; Mr. de la Cruz Espinoza could, based on his own
claims regarding the deficiencies of his bond hearing, represent
the entire proposed class. The Judge finds that the claims alleged
in the Complaint fall squarely in the category of "inherently
transitory" claims. Even if all three of the Lead Plaintiffs'
claims were moot, the Judge could proceed to the merits pursuant to
the "relation back" doctrine. She need not decide at this time
whether Mr. Dubon Miranda and Mr. Thompson remain proper class
representatives, as no class has yet been certified.
The Judge next considers the Defendants' argument that the Court
lacks jurisdiction to consider the Lead Plaintiffs' claims. The
Defendants argue that (1) the Lead Plaintiffs were required to
exhaust their administrative remedies before pursuing relief in
federal court, and (2) 8 U.S.C. Sections 1226(e) and 1252(a)(2)(B)
bar federal court jurisdiction over the claims.
Judge Blake finds both arguments fail. The Judge finds that the
Lead Plaintiffs' claims do not present a threat to administrative
agency authority or judicial efficiency. Even if the Judge were to
grant all of their claims, the ultimate decision of whether to
detain or release the members of the proposed class would remain
within the executive branch. And deciding the legal and
constitutional questions raised in the Complaint may, in fact,
promote judicial efficiency, as a decision on the merits of these
claims may prevent future litigation on these same issues.
Accordingly, the Judge will exercise her discretion to excuse
administrative exhaustion.
The Defendants characterize the Lead Plaintiffs' claims as
challenges to the IJ's weighing of evidence and factual findings
and argue that, accordingly, Sections 1226(e) and 1252(a)(2)(B)
strip the Court of jurisdiction to hear the claims. But the Lead
Plaintiffs' claims are not, in fact, challenges to the IJ's
weighing of evidence and factual findings. They are challenges to
the procedures used during Section 1226(a) bond hearings, which,
argue the Lead Plaintiffs, violate due process and the INA. These
claims are outside the scope of the jurisdiction-stripping
provisions of Sections 1226(e) and 1252(a)(2)(B). Accordingly, the
Court has jurisdiction over the Lead Plaintiffs' claims and the
Judge will proceed to the merits of their motion.
As to the likelihood of success on the merits, Judge Blake finds
that the Lead Plaintiffs have established the necessary elements to
justify a mandatory preliminary injunction. The Judge is satisfied
that they have shown a likelihood of success on the merits of their
claim that due process requires Section 1226(a) bond hearings where
the government must bear the burden of proving dangerousness or
risk of flight. The Judge is satisfied that the Lead Plaintiffs
have shown a likelihood of success on the merits of their claim
that due process requires a Section 1226(a) bond hearing where the
IJ considers a non-citizen's ability to pay a set bond amount and
the noncitizen's suitability for alternative conditions of release.
The Judge finds that the Lead Plaintiffs have shown irreparable
harm on the basis of their continued detention pursuant to a bond
hearing that was likely constitutionally deficient.
Turning to the third and fourth requirements for obtaining a
preliminary injunction, the Court notes that the balancing of the
harm and the public interest merge when the government is the
opposing party. It is clear that these factors weigh in favor of
granting injunctive relief. Despite the Defendants' assertion to
the contrary, the granting of a preliminary injunction does not
seriously infringe on the government's interest in enforcing its
immigration laws. Moreover, it is always in the public interest to
prevent the violation of a party's constitutional rights.
Because the Lead Plaintiffs seek a mandatory rather than
prohibitory preliminary injunction, they must also establish that a
mandatory preliminary injunction is necessary both to protect
against irreparable harm in a deteriorating circumstance created by
the Defendant and to preserve the Court's ability to enter ultimate
relief on the merits of the same kind. The Judge finds that they
have demonstrated that the exigencies of the situation demand the
mandatory preliminary injunction sought. The Lead Plaintiffs have
shown that they are likely to succeed on the merits of their
constitutional claims. Consequently, their continued detention
pursuant to bond hearings that likely do not comport with due
process unquestionably constitutes irreparable injury.
Having found that the imposition of a preliminary injunction is
warranted, the only question remaining is the scope of injunctive
relief. Based on the Court's finding that significant
constitutional rights are at stake, and the risk of irreparable
harm, the Judge will issue a class-wide preliminary injunction
mandating that Section 1226(a) bond hearings implement procedures
that adequately protect the due process rights of noncitizens. At
these bond hearings, the government must bear the burden of
justifying continued detention by clear and convincing evidence,
and the IJ must consider the noncitizen's ability to pay a set bond
amount and suitability for release on alternative conditions.
The Judge will order (1) that Mr. de la Cruz Espinoza receive a new
bond hearing within 21 days, and (2) that future Section 1226(a)
bond hearings in the district comport with the above requirements.
Moreover, the Judge will order the parties to confer within 21 days
and develop a plan for promptly identifying and providing new bond
hearings to Section 1226(a) detainees currently held pursuant to
hearings that did not comport with the above requirements.
Additional details of the preliminary injunction will be
articulated in an order issued concurrently with the Memorandum.
For the foregoing reasons, Judge Blake granted the Lead Plaintiffs'
motion for a TRO and/or a preliminary injunction, construed as a
preliminary injunction. The Judge ordered relief that narrowly
tailored to resolve the deficiencies in the Baltimore Immigration
Court's current Section 1226(a) bond hearing procedures.
A full-text copy of the District Court's May 29, 2020 Memorandum is
available at https://is.gd/MLbZyG from Leagle.com.
MDL 2262: Court Enters Final Judgment in LIBOR Antitrust Suit
-------------------------------------------------------------
Judge Naomi Reice Buchwald of the U.S. District Court for the
Southern District of New York has entered the Final Judgment and
Order of Dismissal with Prejudice in the case, IN RE LIBOR-BASED
FINANCIAL INSTRUMENTS ANTITRUST LITIGATION. THIS DOCUMENT RELATES
TO: The Lender Action, MDL No. 2262, Master File Nos.
1:11-md-2262-NRB, Case No. 12-cv-5723-NRB (S.D. N.Y.).
The New York District Court held a hearing in May 2020 to
determine, among other things: (1) whether the terms and conditions
of the JPMorgan-BOA Settlement Agreement, dated August 15, 2019 and
the UBS Settlement Agreement dated, Dec. 20, 2019, which settle all
claims in The Berkshire Bank and Government Development Bank for
Puerto Rico v. Bank of America, et al., No. 12-cv-5723-NRB,
consolidated in In Re Libor-Based Fin. Instruments Litig., No.
11-md-2262-NRB ("Lender Action"), for $3 million, and $1 million,
respectively, are fair, reasonable, and adequate for the settlement
of all claims asserted by the Lender Class against JPMorgan Chase &
Co. and JPMorgan Chase Bank, N.A.; and Bank of America Corp. and
Bank of America, N.A. ("BOA") and UBS AG ("Settling Defendants");
and (2) whether to approve the proposed Plan of Distribution as a
fair and reasonable method to allocate the respective Net
Settlement Funds among the Lender Class Members.
Upon deliberation, Judge Buchwald approved the Settlements as fair,
reasonable and adequate, and in the best interests of the Lender
Class, in all respects pursuant to Federal Rule of Civil Procedure
23. The Lender Plaintiffs and the Settling Defendants are directed
to consummate the Settlements in accordance with the terms and
provisions of each of the Agreements.
All of the claims asserted in the Lender Action are dismissed on
the merits with prejudice as to the Settling Defendants. The
Parties will bear their own costs and expenses, except as otherwise
expressly provided in the Agreements. Accordingly, the Court
barred all Released Claims against and by the Released Parties.
Plaintiff The Government Development Bank for Puerto Rico is
awarded the sum of $15,000 plus interest at the same rate as earned
by the Settlement Funds, as reasonable costs and expenses and as a
service award directly relating to the representation of the Lender
Class. Without further order of the Court, the Parties may agree
to reasonable extensions of time to carry out any of the provisions
in the Settlement Agreements.
The finality of the Final Judgment and Order of Dismissal with
Prejudice will not be affected, in any manner, by any appeals
concerning the attorneys' fees and expenses awarded herein, or the
award to the Lender Plaintiffs.
In the event that a Settlement does not become final and effective
in accordance with the terms and conditions set forth in that
Agreement, the Escrow Agent will refund that Settlement's
Settlement Fund, less amounts already expended for notice and
administration expenses pursuant to the terms of said Agreement, to
Settling Defendant within 10 business days thereafter. At the
request of a Settling Defendant or the Lender Plaintiffs, the
Escrow Agent or the Escrow Agent's designee will apply for any tax
refund owed to that Settlement's Gross Settlement Fund and pay the
percentage of the proceeds of the tax refund, after deduction of
any fees and expenses incurred in connection with such
application(s) for refund, to the respective Settling Defendant.
All agreements made and orders entered during the course of the
Lender Action relating to the confidentiality of information will
survive the Settlements and be binding on the Parties, including
but not limited to the Stipulation and Protective Order entered on
March 21, 2016.
A full-text copy of the District Court's May 26, 2020 Final
Judgment & Order is available at https://is.gd/Y70fMD from
Leagle.com.
MDL 2492: Manning Suit v. NCAA Over Health Issues Consolidated
--------------------------------------------------------------
The case styled JOSEPH MANNING, individually and on behalf of all
similarly situated individuals v. NATIONAL COLLEGIATE ATHLETIC
ASSOCIATION, Case No. 1:20-cv-01727 (Filed May 25, 2020), was
transferred from the U.S. District Court for the Southern District
of Indiana to the U.S. District Court for the Northern District of
Illinois (Chicago) on August 4, 2020.
The Northern District of Illinois Court Clerk assigned Case No.
1:20-cv-0456 to the proceeding.
The Plaintiff brings this class action complaint against the
Defendant to obtain redress for injuries sustained as result of its
reckless disregard for the health and safety of generations of
student-athletes.
The Manning case is being consolidated with MDL No. 2492, In Re:
NATIONAL COLLEGIATE ATHLETIC ASSOCIATION STUDENT-ATHLETE CONCUSSION
INJURY LITIGATION. The MDL was created by Order of the United
States Judicial Panel on Multidistrict Litigation on Dec. 18, 2013.
These actions seek medical monitoring for putative classes of
former student athletes at NCAA-member schools, who allege they
suffered concussions. The Plaintiffs allege that the NCAA concealed
information about the risks of the long-term effects of concussion
injuries. Opponents to centralization argue, inter alia, that (1)
the putative classes and claims alleged in these actions do not
sufficiently overlap; and (2) given the small number of actions
pending, alternatives to centralization are preferable. Opponents'
arguments, while persuasive when the Section 1407 motion was first
filed, are less compelling now given the current state of the
litigation, the Panel said.
In its Dec. 18, 2013 Order, the MDL Panel found that the these
actions involve common questions of fact, and that centralization
in the Northern District of Illinois will serve the convenience of
the parties and witnesses and promote the just and efficient
conduct of this litigation. These actions share factual questions
relating to allegations against the NCAA stemming from injuries
sustained while playing sports at NCAA-member institutions,
including damages resulting from the permanent long-term effects of
concussions. Centralization will eliminate duplicative discovery;
prevent inconsistent pretrial rulings, including with respect to
class certification; and conserve the resources of the parties,
their counsel, and the judiciary. Presiding Judge in the MDL is
Hon. Judge John Z. Lee Paul. The lead case is 1:16-cv-08727.
NCAA is a non-profit organization, which regulates athletes of
1,268 North American institutions and conferences.[BN]
The Plaintiff is represented by:
Jeff Raizner, Esq.
RAIZNER SLANIA LLP
2402 Dunlavy Street
Houston, TX 77006
Telephone: 713 554 9099
Facsimile: 713 554 9098
E-mail: efile@raiznerlaw.com
- and -
Jay Edelson, Esq.
Benjamin H. Richman, Esq.
Rafey S. Balabanian, Esq.
EDELSON PC
350 North LaSalle Street, 14th Floor
Chicago, IL 60654
Telephone: 312 589 6370
Facsimile: 312 589 6378
E-mail: jedelson@edelson.com
brichman@edelson.com
rbalabanian@edelson.com
MDL 2785: Court OKs Stage One of Class Notice Plan in EpiPen MDL
----------------------------------------------------------------
The U.S. District Court for the District of Kansas issued a
Memorandum and Order granting the Plaintiffs' Motion for an Order
Implementing Stage One of Class Notice Plan in the case captioned
IN RE: EpiPen (Epinephrine Injection, USP) Marketing, Sales
Practices and Antitrust Litigation, MDL No. 2785, Case No.
17-md-2785-DDC-TJJ (D. Kan.).
The document applies to consumer class cases in the multidistrict
litigation.
The class plaintiffs are endpayors in the United States, who paid
or reimbursed others for some or all of the purchase price of
branded or authorized generic EpiPens, an epinephrine auto-injector
(EAI) used to treat anaphylaxis. Generally, the Plaintiffs allege
that the Defendants, who distribute and manufacture the EpiPen,
devised an illegal scheme to maintain a monopoly over the EAI
market that successfully forced EpiPen consumers to pay inflated
prices for the product.
On February 27, 2020, the Court certified a nationwide RICO class
and a state law antitrust class under Rule 23(b)(3) of the Federal
Rules of Civil Procedure. The Court's certification Order directed
the Plaintiffs to submit to the Court a proposed plan for notice to
class members of the two certified classes by March 31, 2020, so
that the parties could begin the process of giving class notice
consistent with Rule 23(c)(2)(B).
After the Defendants filed a Petition with the Tenth Circuit asking
to take an interlocutory appeal of the Court's class certification
order under Rule 23(f), the Court extended the deadline for
submitting the proposed plan for class notice so that it was due 30
days after the Tenth Circuit resolved the Defendants' Rule 23(f)
Petition or any resulting appeal.
On May 26, 2020, the Tenth Circuit denied defendants' Petition
seeking permission to appeal the class certification Order. So,
under the current Scheduling Order, the Plaintiffs must submit
their proposed plan for notice to class members.
Accordingly, the Court grants the Motion for an Order Implementing
Stage One of Class Notice Plan. With this Order, the Court: (1)
appoints A.B. Data, Ltd., as the Notice Administrator, and (2)
allows the class plaintiffs to issue the requested subpoenas duces
tecum.
A full-text copy of the District Court's June 1, 2020 Memorandum
and Order is available at https://tinyurl.com/yan68nqx from
Leagle.com.
MEDSTAR HEALTH: Mismanages Retirement Plan, Watson Suit Alleges
---------------------------------------------------------------
XANIA E. WATSON, individually and on behalf of all others similarly
situated v. MEDSTAR HEALTH, INC.; THE BOARD OF DIRECTORS OF MEDSTAR
HEALTH, INC.; THE PENSION AND BENEFITS COMMITTEE; and JOHN DOES
1-30, Case No. 1:20-cv-02250-RDB (D. Md., Aug. 4, 2020), is brought
pursuant to the Employee Retirement Income Security Act of 1974
against fiduciaries of MedStar retirement plan for breaches of
their fiduciary duties.
The Plaintiff alleges that the Defendants failed to objectively and
adequately review the Plan's investment portfolio with due care to
ensure that each investment option was prudent, in terms of cost;
and maintaining certain funds in the Plan despite the availability
of identical or materially similar investment options with lower
costs and/or better performance histories.
The Plaintiff contends that the Defendants' mismanagement of the
Plan, to the detriment of participants and beneficiaries,
constitutes a breach of the fiduciary duty of prudence in violation
of 29 U.S.C. section 1104. The Plaintiff adds that their actions
were contrary to the actions of a reasonable fiduciary and cost the
Plan and its participants millions of dollars.
Defined contribution retirement plans, like the Plan, confer tax
benefits on participating employees to incentivize saving for
retirement. As of the end of 2015, Americans had approximately $6.7
trillion in assets invested in defined contribution plans.
The Plaintiff participated in the Plan, investing in the options
offered by the Plan.
MedStar is the Plan sponsor.[BN]
The Plaintiff is represented by:
Adam L. Van Grack, Esq.
Theodore B. Kiviat, Esq.
LONGMAN & VAN GRACK, LLC
10411 Motor City Drive, Suite 750
Bethesda, MD 20817
Telephone: (301) 291-7156
Facsimile (301) 291-5028
E-mail: avangrack@lvglawfirm.com
- and -
Donald R. Reavey, Esq.
Mark K. Gyandoh, Esq.
CAPOZZI ADLER, P.C.
2933 North Front Street
Harrisburg, PA 17110
Telephone: (717) 233-4101
Facsimile: (717) 233-4103
E-mail: donr@capozziadler.com
markg@capozziadler.com
MILLENNIUM HEALTH: Wins Summary Judgment in Mauthe TCPA Suit
-------------------------------------------------------------
In the case, ROBERT W. MAUTHE, M.D., P.C., individually and on
behalf of all others similarly situated, Plaintiff, v. MILLENNIUM
HEALTH LLC, Defendant, Civil Action No. 18-1903 (E.D. Pa.), Judge
Edward G. Smith of the U.S. District Court for the Eastern District
of Pennsylvania granted the Defendant's motion for summary judgment
with respect to the Plaintiff's claims brought under the Telephone
Consumer Protection Act ("TCPA").
The Plaintiff brings a TCPA claim and state law conversion claim
against the Defendant, alleging that a one-page fax promoting a
free seminar about urine drug testing, which the Plaintiff received
from the Defendant, constituted an unsolicited advertisement. The
Plaintiff is a private medical practice located in Center Valley,
Pennsylvania. It has been a named plaintiff in at least 11 other
cases alleging TCPA violations.
Defendant Millennium Health is a laboratory that provides
medication monitoring and drug-testing services, including urine
drug testing, to clinicians and healthcare professionals who
require information about patients' recent use of prescription
medications and illicit drugs. Urine drug testing is a clinical
tool that provides objective information about medications, recent
medication use, or use of illicit substances. The Plaintiff had
previously submitted some of his patients' urine specimens to the
Defendant for drug testing. He provided the defendant with his fax
number in that context.
On May 2, 2017, the Defendant sent the Plaintiff a one-page fax,
which is the subject of the litigation. It sent the one page fax
to its entire customer base. The top of the fax contains the
Defendant's corporate logo and a header that reads "National
Education Webinar Series 2017." Directly below the header is the
fax message. Below the description of the webinar and its
objectives, the fax contains a headshot of the host of the seminar,
and it also provides her biographical information. Below Dr.
Chianta's biography, the fax provides short descriptions of three
other educational webinars that are archived on the Defendant's
website.
The Plaintiff did not receive any fax transmissions from the
Defendant relating to the webinar other than the single, one-page
fax the plaintiff received on May 2, 2017. He did not receive any
fax transmissions inviting attendance at any other webinars hosted
by the Defendant. The Defendant did not make any follow-up
communications to the Plaintiff after sending the May 2, 2017 fax.
The Plaintiff has not received any advertisements or marketing
materials from the Defendant since May 25, 2017, the date of the
webinar.
The Defendant's corporate designee testified that the purpose of
the fax was to increase awareness of its education offerings. It
stopped producing webinars on Sept. 13, 2017 and has discontinued
its educational webinar program. The Defendant collected each
webinar registrant's name, email address, occupation, practice
name, practice address, clinical specialty, work telephone number,
NPI number, and registration date. It did not use any of the
information it collected from fax recipients who registered for the
webinar for marketing or advertising. The May 25, 2017 webinar is
archived on the Defendant's website and may be viewed for free at
any time in its archives.
The Plaintiff filed the original complaint against the Defendant.
The following day, the plaintiff filed a motion for class
certification. On May 16, 2018, the Court denied the motion for
class certification without prejudice, given that the Plaintiff had
not yet engaged in any discovery or even served the defendant with
the complaint. The Defendant filed a motion to dismiss, or,
alternatively, motion to stay the Plaintiff's original complaint
due to separate, ongoing litigation.
The Plaintiff filed the first amended class action complaint on
Aug. 23, 2018. The amended complaint alleges that the Defendant
violated the TCPA by sending the Plaintiff a fax on May 2, 2017,
which discussed a free seminar hosted by the Defendant. The
Plaintiff alleges that the Defendant violated the TCPA by sending
this fax because (1) the fax advertises the Defendant's 'free'
webinars -- which are merely free' seminars conducted through an
internet website -- to recipients (i.e., medical providers such as
the Plaintiff)"; (2) the Defendant's webinars serve as a pretext
for advertising and promoting the commercial availability and
quality of the Defendant's products and services, including its
prescription drug monitoring products and related services; and (3)
the Defendant's webinar, and the fax that the Defendant sent
promoting it, is a pretext to advertise the Defendant's
drug-monitoring products and services, either during the webinar or
thereafter using the contact information provided by fax recipients
during the registration process.
In response to the amended complaint, the Defendant filed a motion
to dismiss for failure to state a claim, or, alternatively, motion
to stay the case in anticipation of separate, ongoing litigation on
September 6, 2018. Upon receiving notice of the motion, the Court
denied the first motion to dismiss, or, alternatively, stay as moot
on September 10, 2018. The plaintiff filed a response in
opposition to the Defendant's motion on Oct. 4, 2018. After
receiving two extensions of time, the Defendant filed a reply in
support of its motion on Dec. 6, 2018. The Court held an initial
pretrial conference and oral argument on the motion on Jan. 8,
2019. On Jan. 10, 2019, the Court denied the Defendant's motion
without prejudice to the Defendant raising its arguments in a
motion for summary judgment. Additionally, the Court ordered the
parties to engage in limited discovery on the issue of whether the
fax was an advertisement or "part of a larger advertising scheme."
After engaging in limited discovery, on Aug. 26, 2019, the
Defendant filed the instant motion for summary judgment, supporting
brief, and statement of uncontested facts. On Oct. 7, 2019, the
Plaintiff filed a brief in opposition to the motion for summary
judgment, response to the Defendant's statement of facts, and
statement of additional facts. On Nov. 4, 2019, the Defendant
filed a reply in support of its motion, which also included the
Defendant's responses to the Plaintiff's statement of additional
facts.
To determine whether the May 2, 2017 fax constitutes an unsolicited
advertisement, Judge Smith addresses a series of four questions.
First, was the fax unsolicited? The Judge concludes that the fax
was unsolicited. Second, is the fax an advertisement on its face?
The Judge concludes that the fax is not an advertisement on its
face, because it promotes a free seminar, rather than any
commercially available product. Third, since the fax is not an
advertisement on its face, should the Court apply a pretext
analysis, given the relevant portion of the 2006 FCC order
concerning free seminars? The Judge concludes that it need not
adopt the relevant portion of the 2006 FCC order and apply the
pretext analysis. Fourth, does the 2006 FCC order apply in some
way such that the court must peel back the curtain and dig beyond
the face of the fax? The Judge concludes that it does not need to
examine beyond the face of the fax to conclude that the fax is not
an unsolicited advertisement.
The Judge finds that (i) the fax extended beyond the limited
purpose for which the Plaintiff originally gave the Defendant the
fax number; (ii) as the May 2, 2017 fax proposed no commercial
transaction, it is not an advertisement; (iii) because section
402(a) does not apply to non-binding interpretive rules, the Hobbs
Act does not apply in the instant case and does not mandate that
the Court implement the relevant portion of the 2006 FCC order; and
(iv) given that the fax concerned a free seminar and lacked any
commercial element, the fax does not constitute an unsolicited
advertisement in violation of the TCPA.
Having granted the summary judgment motion on the TCPA claim, the
Judge declines to exercise the Court's supplemental jurisdiction
over the Plaintiff's state law claim for conversion. Section
1367(c)(3) contemplates and permits the Court to exercise its
discretion when only a state law claim remains in a case. Needless
decisions of state law should be avoided both as a matter of comity
and to promote justice between the parties, by procuring for them a
surer-footed reading of applicable law. Even the Plaintiff
indicates that were the Court to grant summary judgment on the TCPA
claim, the Plaintiff would not request that the Court retain
jurisdiction over the conversion claim. Therefore, the Judge
declines to exercise supplemental jurisdiction and dismisses
without prejudice the remaining conversion claim.
Based on the foregoing, Judge Smith granted the Defendant's motion
for summary judgment with respect to the Plaintiff's claims brought
under the TCPA because the fax does not constitute an unsolicited
advertisement as defined outright in the TCPA. The Judge also
dismissed without prejudice the remaining state law claim because
he declined to exercise jurisdiction over it pursuant to section
1367(c)(3).
A full-text copy of the District Court's May 29, 2020 Memorandum
Opinion is available at https://is.gd/d1RIOg from Leagle.com.
MISSISSIPPI POWER: Court Dismisses Turnage Class Suit
-----------------------------------------------------
In the case, RAY C. TURNAGE, et al., Plaintiffs, v. BRENT BAILEY,
et al., Defendants, Cause No. 3:18-CV-818-CWR-FKB (S.D. Miss.),
Judge Carlton W. Reeves of the U.S. District Court for the Southern
District of Mississippi, Northern Division, granted Defendant
Mississippi Power Co. (MPC)'s Motion to Dismiss.
Mississippi Power Co. (MPC) is a private Mississippi corporation
and electric utility that generates, transmits and distributes
electricity to retail customers in 23 counties in Mississippi.
Plaintiffs Turnage, Reverend D. Franklin Browne, Dennis D.
Henderson, Carlos Wilson, Fred Burns, Charles Bartley, Clarence
Magee, Linda Patrick-Crafton, Barbara Young, Juanita J. Griggs,
Chernise Seaphus, Mount Carmel Baptist Church, Pinebelt Community
Services, Inc., Hall-Fairley Mortuary, and Deborah Delgado are
residents of Mississippi or Mississippi entities who buy
electricity from MPC.
The case started in March 2013 when, in order to construct a new
power generation plant in Kemper County, MPC sought and obtained
the Mississippi Public Service Commission's approval to raise its
rates. After extensive litigation, the Mississippi Supreme Court
found that MPC's customers were wrongfully forced to pay for the
construction. The Court ordered the Mississippi Public Service
Commission to correct the rates, stay rate increases, and refund
MPC's customers for monies attributable to the rate increases. On
July 7, 2015, the Commission ordered MPC to file a refund plan in
accordance with the ruling.
At a hearing held on Aug. 6, 2015, the Commission approved and
adopted MPC's refund plan. According to a third-party audit, the
refund plan, also known as the Kemper Refund Plan, began with the
period which encompassed the first billing cycle of April 2013
(March 19, 2013) and ended May 27, 2016, the date through which
refund checks cleared and remaining refund checks outstanding are
reported.
The Plaintiffs filed the class action complaint against MPC and the
Public Service Commissioners on Nov. 21, 2018, and amended their
class action complaint on March 14, 2019. The present version
alleges that MPC violated their procedural and substantive due
process rights under the Fourteenth Amendment through (1) the March
2013 order increasing rates to construct the Kemper County plant
and (2) the "adoption, enactment and enforcement of the interest
rate calculation method" governing the Kemper Refund Plan. The
Plaintiffs contend that the interest rate calculation method
underpaid thems and deprived them of statutory interest in the
amount of $13.8 million to $23.5 Million. They also claim that the
alleged underpayment constituted a taking under the Fifth and
Fourteenth Amendments.
The Plaintiffs then make the following state-law claims against
MPC: violation of the Mississippi Consumer Protection Act; gross
negligence, reckless conduct, and intentional conduct; and bad
faith refusal to pay statutory pre-judgment interest. They seek
monetary damages, declaratory relief, and injunctive relief.
MPC contends that the amended complaint should be dismissed under
Federal Rules of Civil Procedure 12(b)(1) and (b)(6). It argues
that the Court lacks subject matter jurisdiction over the federal
claims under the Johnson Act, and lacks jurisdiction over the state
claims under an exception to the Class Action Fairness Act. In the
alternative, MPC argues that the claims are untimely or otherwise
fail on the merits.
The Johnson Act deprives federal courts of jurisdiction over suits
challenging state orders affecting rates chargeable by a public
utility. The Act denies federal jurisdiction when four criteria
are met: (1) jurisdiction is based solely on diversity of
citizenship or repugnance of the order to the Federal Constitution;
(2) the order does not interfere with interstate commerce; (3) the
order has been made after reasonable notice and hearing; and (4) a
plain, speedy and efficient remedy may be had in the courts of such
State.
The parties do not dispute that the first, second, and fourth
criteria are met. The Court's review of the record confirms that
it is the case: the Plaintiffs allege federal constitutional
claims; the March 2013 and August 2015 orders address intrastate
rates only; and Mississippi courts provide a remedy for any party
aggrieved by any final finding, order or judgment of the commission
in any utility rate proceedings involving a filing for a rate
change of any public utility. Thus, only the third criterion is at
issue.
In 2015, the Mississippi Supreme Court held that the Commission's
March 2013 order was not made after reasonable notice. The
question is whether that judgment has preclusive effect in the
matter. Given the Mississippi Supreme Court's ruling that the
March 2013 order was made without reasonable notice, Judge Reeves
holds that the third criterion of the Johnson Act is not met as to
that order. The Johnson Act does not deprive the Court of
jurisdiction to hear the Plaintiffs' claims as to that order.
The next question is whether the Johnson Act deprives the Court of
jurisdiction to hear the Plaintiffs' constitutional challenge to
the Commission's August 2015 Order. The Judge holds that MPC has
not shown that reasonable notice was provided before the Commission
issued the August 2015 Order. Accordingly, it has not established
that the Johnson Act deprives the Court of subject matter
jurisdiction to hear the Plaintiffs' federal claims as to that
order.
Turning now to the Rule 12(b)(6) portion of its brief, MPC argues
that the Plaintiffs' Section 1983 claims are barred by the statute
of limitations. The Judge concludes that the Plaintiffs had until
Aug. 6, 2018 to file suit. They filed suit on Nov. 21, 2018.
Accordingly, the Plaintiffs' Section 1983 claims arising from the
August 2015 order are time-barred.
Finally, because MPC has met its burden of establishing that the
home state exception applies based on the preponderance of the
evidence, the Judge finds that the Plaintiffs' state-law claims
cannot proceed in the forum. Mississippi citizens plainly comprise
more than two-thirds of the total addresses. Accordingly, the
Court could have jurisdiction under CAFA only if the Plaintiffs
demonstrated somewhere in their response that MPC's numbers are
wrong, such that at least 71,000 of the customers are not
Mississippi citizens. The Judge will dismiss the Plaintiffs'
state-law claims without prejudice so that they may refile their
claims in the appropriate state court.
For these reasons, Judge Reeves granted MPC's Motion to Dismiss.
A full-text copy of the District Court's May 26, 2020 Order is
available at https://is.gd/YMmKPm from Leagle.com.
MONTGOMERY COUNTY, TX: Certification Bid Ruling in Barrera Deferred
-------------------------------------------------------------------
In the case, ROMAN VAZQUEZ BARRERA, et al, Petitioners, v. CHAD
WOLF, et al, Respondents, Civil Action No. 4:20-CV-1241 (S.D.
Tex.), Judge Keith P. Ellison of the U.S. District Court for the
Southern District of Texas, Houston Division, (a) denied the
Defendants' Motion to Dismiss and Motion to Strike Amended
Complaint; and (b) deferred ruling on the Plaintiffs' Motion for
Class Certification, Motion for Expedited Discovery, and Motion for
Expedited Relief.
The Plaintiffs filed their original petition for writ of habeas
corpus and complaint for declaratory and injunctive relief on April
8, 2020. There were four original Plaintiffs, all of whom were
non-citizens detained at Montgomery Processing Center ("MPC") and
have medical conditions that put them at particularly high risk of
serious illness or death if they contract COVID-19. All four
Plaintiffs sought a Temporary Restraining Order, requesting
temporary release from detention so they could remain healthy and
alive for the pendency of the lawsuit. Before the Court could rule
on the Plaintiffs' request, two of the Plaintiffs were released
from MPC -- one was released by Immigration and Customs Enforcement
directly, and the other was ordered released on bond by an
immigration judge.
On April 17, 2020, the Court issued a Memorandum and Order granting
in part the Plaintiffs' request as a preliminary injunction and
releasing one of the Plaintiffs, Georgina Rojas. It denied
preliminary relief to the other Plaintiff still in custody, Bassam
Jebril, on the basis of his flight risk and the risk of danger to
his wife. On April 28, 2020, the Plaintiffs notified the Court
that Mr. Jebril had been transferred out of MPC and was being
detained in a different detention facility.
On April 29, 2020, the Plaintiffs filed an Amended Complaint. The
Amended Complaint was filed within the 21-day limit for amendment
by right under Rule 15(a)(1)(A). The Amended Complaint adds four
new individual Plaintiffs, who are also serving as proposed class
representatives for a newly added class action claim. All four
newly added Plaintiffs are detained at MPC and have medical
conditions that they claim put them at higher risk of serious
illness or death if they contract COVID-19. The original four
Plaintiffs do not seek to act as the class representatives.
The Plaintiffs filed a Motion for Class Certification with their
Amended Complaint. The proposed class consists of all individuals
detained at MPC who have been diagnosed with or are receiving
treatment for an enumerated list of medical conditions that put
them at higher risk of serious illness or death if they were to
contract COVID-19 and/or who are over the age of 50.
On May 1, 2020, the Plaintiffs notified the Court that two of the
newly added named Plaintiffs had been released from ICE custody.
Thus, the only named Plaintiffs in the case who are currently
detained at MPC are two of the newly added Plaintiffs: Philip
Bakasa and Yaneysi Diaz-Ramirez.
In response to the Plaintiffs' Amended Complaint, Defendants filed
a Motion to Dismiss and a Motion to Strike Amended Complaint,
arguing that the Plaintiffs' case became moot on April 28, 2020,
the day before they filed their Amended Complaint, when Mr. Jebril,
the last of the original Plaintiffs, left MPC. The Plaintiffs then
filed a Motion for Expedited Discovery and a Motion for Expedited
Relief.
The Court held a hearing on all pending motions on May 21, 2020.
At the hearing, the Defendants reported that six detainees had now
tested positive for COVID-19. Reportedly, five MPC staff members
have also tested positive.
Judge Ellison first addresses the Defendants' Motion to Dismiss and
Motion to Strike Amended Complaint. At the hearing, the Court
inquired whether the Defendants were taking the position that they
had no right to appeal the order releasing Ms. Rojas because it was
now moot. While the Defendants were unwilling to commit that
position at the hearing, they later filed a notice with the Court
that they "will not appeal" the order.
However, their discretionary decision not to appeal the order does
not affect the analysis of whether Ms. Rojas's claims are moot.
The Defendants have not asserted that they have no right to appeal,
but rather, just that they choose not to appeal. Perhaps, if the
Defendants had provided Ms. Rojas and the Court with notice that
they would no longer be defending the suit and no longer sought to
redetain Ms. Rojas, their voluntary decision could moot the case.
However, the Defendants have not done that, and certainly did not
before the Plaintiffs filed their Amended Complaint.
Because the Defendants did not act in a way that mooted Ms. Rojas's
claims, and because the Court's order that granted Ms. Rojas
preliminary relief did not moot her interest in the final
adjudication of her claims, Ms. Rojas's claims have remained live
cases or controversies throughout the pendency of this lawsuit.
Thus, the Court has no basis to dismiss the case or strike the
Plaintiffs' Amended Complaint because of mootness. The Court
denied the Defendants' Motion to Dismiss and Motion to Strike
Amended Complaint.
Having accepted the Plaintiffs' Amended Complaint, the Court now
turns to the Plaintiffs' pending motions, which seek certification
of a class, expedited discovery on the identities of the class
members, and expedited relief for the class in the form of
individualized bail hearings for release pending final adjudication
of the lawsuit. The parties have briefed all pending motions and
the Court heard argument on all pending motions at the hearing.
However, the Judge finds that it needs some additional information
from the Defendants about the proposed class before it can rule on
any of the Plaintiffs' pending motions.
In particular, Judge Ellison finds that the Defendants' claim that
joinder is not impracticable, as required under Rule 23(a)(1) for
class certification, is potentially meritorious. But the Judge
finds he cannot adjudicate the question of whether the proposed
class members could bring their claims through joinder without some
more information about the size and characteristics of the proposed
class.
Thus, the Judge ordered the Defendants to file a supplemental brief
that answers the following questions:
1. What is the current size of the proposed class, as defined
by the Plaintiffs in their Motion for Class Certification?
2. What is the composition of the individuals counted in
Question 1, with regards to medical conditions? Please provide the
number of proposed class members who have: (a) any CDC Risk
Factors, as listed by Defendants in their Response to Motion for
Class Certification; (b) no CDC Risk Factors, but have
hypertension; and (c) no CDC Risk Factors, and no hypertension, but
are in the Plaintiffs' proposed class.
3. How many of the individuals counted in Question 1 are also
class members in Fraihat v. U.S. Immigration & Customs Enf't, 2020
WL 1932570 (C.D. Cal. Apr. 20, 2020)?
4. Pursuant to which statutory provisions are the individuals
counted in Question 1 detained? Please provide the number of
proposed class members who: (a) are detained pursuant to mandatory
detention provisions; (b) are detained pursuant to discretionary
detention provisions; (c) have been denied bond by an immigration
judge or another authority; (d) are eligible for bond but have not
had a bond adjudication.
The Defendants are not required to disclose any identifiable
medical information. If there is information that they consider to
be sensitive medical information, they may file that information
under seal or request that the Court reviews that information in
camera. Judge Ellison deferred his ruling on the Plaintiffs'
pending motions until after it receives the Defendants' response.
A full-text copy of the District Court's May 26, 2020 Memorandum &
Order is available at https://is.gd/Nhbd6R from Leagle.com.
NEW HORIZONS: Gutierrez Suit Seeks Overtime Pay Under Labor Code
----------------------------------------------------------------
MICHELLE GUTIERREZ, as an individual and on behalf of all other
aggrieved employees v. NEW HORIZONS: SERVING INDIVIDUALS WITH
SPECIAL NEEDS, a California Corporation; and DOES 1 through 100,
Case No. 20STCV28128 (Cal. Super., Los Angeles Cty., July 24,
2020), seeks civil penalties under the Private Attorneys General
Act, Labor Code.
The Plaintiff contends that she and other aggrieved employees
sometimes worked in excess of eight hours per workday and/or 40
hours per workweek; however, the Defendants have failed to pay them
overtime compensation equal to one and one-half times their regular
rate of pay for all overtime hours worked.
The Plaintiff was employed by the Defendants in the position of
"Direct Support Professional" from August 2014 until August 2019.
The Defendants provide various services for developmentally
disabled adults throughout the San Fernando Valley. The Defendants
operate residential homes in which Defendants provide continuing
24-hour-a-day support to assist their clients with daily life
activities such as meal planning, budgeting, and bathing.[BN]
The Plaintiff is represented by:
Paul K. Haines, Esq.
Sean M. Blakely, Esq.
Diana M. Martinez, Esq.
HAINES LAW GROUP, APC
2155 Campus Drive, Suite 180
El Segundo, CA 90245
Telephone: (424) 292-2350
Facsimile: (424) 292-2355
E-mail: phaines@haineslawgroup.com
sblakely@haineslawgroup.com
dmartinez@haineslawgroup.com
NEWMONT CORP: Shareholder Class Suit in Ontario Ongoing
-------------------------------------------------------
Newmont Corporation said in its Form 10-Q Report filed with the
Securities and Exchange Commission on July 30, 2020, for the
quarterly period ended June 30, 2020, that the company continues to
defend a a putative class action suit pending before the Ontario
Superior Court of Justice.
On October 28, 2016 and February 14, 2017, separate proposed class
actions were commenced in the Ontario Superior Court of Justice
pursuant to the Class Proceedings Act (Ontario) against the Company
and certain of its current and former officers.
Both statement of claims alleged common law negligent
misrepresentation in Goldcorp, Inc.'s public disclosure concerning
the Penasquito mine and also pleaded an intention to seek leave
from the Court to proceed with an allegation of statutory
misrepresentation pursuant to the secondary market civil liability
provisions under the Securities Act (Ontario).
By a consent order, the latter lawsuit will proceed, and the former
action has been stayed. The active lawsuit purports to be brought
on behalf of persons who acquired Goldcorp Inc.’s securities in
the secondary market during an alleged class period from October
30, 2014 to August 23, 2016.
The Company intends to vigorously defend this matter, but cannot
reasonably predict the outcome.
No further updates were provided in the Company's SEC report.
Newmont Corporation engages in the production and exploration of
gold, copper, silver, zinc, and lead. The Company has operations
and/or assets in the United States, Canada, Mexico, Dominican
Republic, Peru, Suriname, Argentina, Chile, Australia, and Ghana.
Newmont Corporation was founded in 1916 and is headquartered in
Greenwood Village, Colorado.
OBALON THERAPEUTICS: Settlement Reached in Consolidated Class Suit
------------------------------------------------------------------
Obalon Therapeutics, Inc. said in its Form 10-Q Report filed with
the Securities and Exchange Commission on July 30, 2020, for the
quarterly period ended June 30, 2020, that a settlement has been
reached in the consolidated class action suit spearheaded by
Inter-Local Pension Fund GCC/IBT.
On February 14 and 22, 2018, plaintiff stockholders filed class
action lawsuits against the company and certain of its executive
officers in the United States District Court for the Southern
District of California (Hustig v. Obalon Therapeutics, Inc., et
al., Case No. 3:18-cv-00352-AJB-WVG, and Cook v. Obalon
Therapeutics, Inc. et al., Case No. 3:18-cv-00407-CAB-RBB).
On July 24, 2018, the court consolidated the lawsuits and appointed
Inter-Local Pension Fund GCC/IBT as lead plaintiff. On October 5,
2018, plaintiffs filed an amended complaint. The amended complaint
alleges that the company and certain of its executive officers made
false and misleading statements and failed to disclose material
adverse facts about the company's business, operations, and
prospects in violation of Sections 10(b) (and Rule 10b-5
promulgated thereunder) and 20(a) of the Securities Exchange Act of
1934, as amended, or the Exchange Act. The amended complaint also
alleges violations of Section 11 of the Exchange Act arising out of
the Company's initial public offering.
The plaintiffs seek damages, interest, costs, attorneys' fees, and
other unspecified equitable relief. The underwriters from the
company's initial public offering have also been named as
defendants in this case and we have certain obligations under the
underwriting agreement to indemnify them for their costs and
expenses incurred in connection with this litigation.
On September 25, 2019, the court granted in part and denied in part
the defendants' motion to dismiss. The court dismissed the Section
11 claims entirely, without leave to amend, and accordingly
dismissed the underwriters and certain directors from the case. The
Court also dismissed certain statements from the Section 10
claims.
On June 16, 2020, the parties reached a settlement of the
securities class action, and they intend to submit a final
settlement agreement for court approval.
The settlement provides for a payment of $3.15 million to the
plaintiffs, and provides that the defendants continue to deny the
allegations and claims asserted by the plaintiffs, and are entering
into the settlement solely to eliminate the burden and expense of
further litigation.
The Company expects that any amounts due as part of the settlement
will be covered by the Company's insurance policies.
No further updates were provided in the Company's SEC report.
Obalon Therapeutics, Inc., a vertically integrated medical device
company, focuses on developing and commercializing medical devices
to treat people who are obese and overweight. The company offers
the Obalon balloon system designed to provide weight loss in obese
patients. Obalon Therapeutics, Inc. was founded in 2008 and is
headquartered in Carlsbad, California.
PRIMA CONTRACTING: Villa May Amend Complaint to Add Defendant
-------------------------------------------------------------
In the case, FRANCISCO SEGUNDO BUNAY VILLA, SEGUNDO GARCIA
TENESELA, IVAN JAIME PADILLA SISLEMA, JUAN MARCELO PACA, SEGUNDO
ROBERTO BUNAY VILLA, VICTOR PABLO GUARACA PUCULPALA, and SEGUNDO
PABLO BUNAY VILLA, individually and on behalf of all others
similarly situated, Plaintiffs, v. PRIMA CONTRACTING LTD., JORGE
OUVINA, and JOSE OUVINA, as individuals, Defendants, CV No. 16-6266
(DRH) (AKT) (E.D. N.Y.), Magistrate Judge A. Kathleen Tomlinson of
the U.S. District Court for the Eastern District of New York (i)
granted the Plaintiffs' motion to amend the complaint, and (ii)
denied their request for attorneys' fees and costs.
Plaintiffs filed the putative class action on Nov. 10, 2016 under
the Fair Labor Standards Act (FLSA) and New York Labor Laws seeking
to recover unpaid overtime wages from Defendants. The Plaintiffs
were employed by Defendant Prima Contracting as construction
workers. As per the Complaint, Jorge and Jose Ouvina are the
owners, managers, operators, CEO, Chairmen of the Board, and agents
of Prima Contracting.
The parties engaged in discovery and as of April 10, 2019,
"resolved their outstanding discovery issues." On April 11, 2019,
the Court held a Telephone Status Conference with the parties in
anticipation of giving them a new date to file an Amended Pre-Trial
Order because the Pre-Trial Order on file was from February 2018.
However, it was advised of an issue, which arose during the
depositions of Jorge and Jose Ouvina.
Specifically, counsel for both sides learned from the Ouvinas that
neither of them are the owners of Prima Contracting. The Court
questioned the Defendants' counsel as to how it was even possible
if his clients were properly vetted at the time he undertook their
representation, but his response was not enlightening.
In light of that new information, the Plaintiffs sought to amend
the Complaint to add the purported owner of Prima Contracting,
Michael Filippone, as a defendant. The Defendants would not
stipulate to the amendment. As such, the Court informed the
Defendants' counsel that if any information comes to light showing
that the Defendants have not been acting in good faith -- including
in refusing to consent to this amendment -- then it will take
further action, which may well encompass the prospect of requiring
the Defendants to bear the costs of the motion practice set in
place today.
The Court then set a briefing schedule for the Plaintiffs' motion
to amend. Upon motion, the deadlines set forth in the briefing
schedule were extended as follows: the Plaintiffs' opening motion
papers were due May 9, 2019; the Defendants' opposition papers were
due May 27, 2019; and the Plaintiffs' reply papers were due June 6,
2019.
In reviewing the record, Magistrate Judge Tomlinson points out that
the Defendants' interrogatory responses identify Michael Filippone
as a "Human Resources" employee who has knowledge of work and
employees at the projects. In addition, the Defendants'
interrogatory responses also identified Filippone and four others,
including Jorge Ouvina, as being responsible for calculating and
paying wages.
However, the Magistrate Judge is not convinced that Filippone is
just a "Human Resources" employee as the Defendants characterized
him to be, especially in light of the testimony described in the
Plaintiffs' motion. The Court has confirmed from the record that
numerous duties Filippone performed are atypical of a traditional
human resources employee. Further, the Court finds the job
description for Filippone to be curious in light of Jorge Ouvina
having identified himself as an "operations manager" and the record
reflecting Filippone possessing even greater authority than Ouvina.
Accordingly, the Plaintiffs' motion to amend their complaint to add
Michael Filippone as a Defendant is granted. Further, to the
extent the Plaintiffs seek to compel the Defendants to produce
Filippone's contact information, as agreed upon by the parties
during the deposition of Jorge Ouvina, that request is likewise
granted. The Defendants are directed to turn over the Filippone
contact information within one week. The Plaintiffs' counsel is
directed to file the Amended Complaint within one week of receiving
that information.
As noted by the Court at the April 11, 2019 conference, if the
record reflected that Defendants acted in bad faith, including in
refusing without cause to consent to the Plaintiffs' amendment to
the Complaint, the Court would take further action such as
requiring Defendants to bear the costs of the motion practice that
is the subject of the Order. To this point, the Plaintiffs request
that the Court award them attorneys' fees and costs for having to
file the motion.
The Court opines that the Plaintiffs' justification for the
imposition of sanctions does not equate to a showing of bad faith,
which would justify an award of attorneys' fees. They also fail to
elaborate any specific actions taken by the Defendants to suggest
that their decision to refuse to consent to the Plaintiffs'
amendment was motivated by improper purposes. Thus, the
Plaintiffs' request for fees and costs is denied.
A full-text copy of the District Court's May 29, 2020 Memorandum &
Order is available at https://is.gd/z9OY9s from Leagle.com.
QUAN TRAN: Q3 Investments Recovery Suit Remanded to State Court
---------------------------------------------------------------
The U.S. District Court for the Middle District of Florida, Tampa
Division, issued an Order granting Plaintiff's Renewed Motion to
Remand in the case captioned Q3 INVESTMENTS RECOVERY VEHICLE, LLC
v. QUAN TRAN, et al., Case No. 8:20-cv-756-T-33AAS (M.D. Fla.).
Q3 Investments Recovery initiated this action in state court on
March 12, 2020. Q3 Investments Recovery is an entity "created by
victims of a $35 million Ponzi scheme to pool their claims and
resources to attempt to recover their substantial losses." "From
approximately August 2017 to December 2019, the [individual
Defendant] Founders [of Defendant Q3 I, LP] solicited funds to
supposedly trade virtual currencies through the Q3 Entities." "The
Founders claimed, fraudulently, that the investments would be used
to trade cryptocurrency using a proprietary and wildly successful
algorithm developed by [Defendant Michael] Ackerman."
The complaint asserts claims for fraud (Count I), conspiracy to
commit fraud (Count II), negligent misrepresentation (Count III),
unjust enrichment (Count IV), breach of fiduciary duty (Count V),
negligence (Count VI), and vicarious liability (Count VII) against
Tran and numerous other Defendants. The complaint alleges that many
of Q3 Investments Recovery's members and some Defendants are
citizens of Florida, such that complete diversity does not exist.
Mr. Tran removed the case to this Court on April 1, 2020. He then
filed an amended notice of removal on April 16, 2020, premising
removal solely on the Securities Litigation Uniform Standards Act
(SLUSA).
The party that removes an action to federal court pursuant to SLUSA
bears the burden of showing that: (1) the suit is a 'covered class
action,' (2) the plaintiffs' claims are based on state law, (3) one
or more 'covered securities' has been purchased or sold, and (4)
the defendant misrepresented or omitted a material fact 'in
connection with the purchase or sale of such security.' Behlen v.
Merrill Lynch, 311 F.3d 1087, 1092 (11th Cir. 2002)
Q3 Investments Recovery argues that remand is proper because the
Supreme Court's decision in Chadbourne & Parke LLP v. Troice, 571
U.S. 377 (2014) "precludes application of SLUSA to this case." Q3
Investments Recovery argues Tran cannot satisfy the third and
fourth elements.
In its Order, the Court concludes that SLUSA does not apply, and
because SLUSA formed the sole basis for removal to this Court,
remand is warranted.
Accordingly, Plaintiff Q3 Investments Recovery Vehicle, LLC's
Renewed Motion to Remand is GRANTED. The Clerk is directed to
REMAND this case to state court and, thereafter, CLOSE this case.
A full-text copy of the District Court's June 1, 2020 Order is
available at https://tinyurl.com/ycg747pp from Leagle.com
QUICK QUACK: Faces Curran Tort Suit in California Superior Court
----------------------------------------------------------------
A class action lawsuit has been filed against Quick Quack Car Wash
Holdings, LLC. The case is captioned as Randy Curran, on behalf of
all others similarly situated v. Quick Quack Car Wash Holdings,
LLC, a Delaware limited liability company, Case No.
34-2020-00282263-CU-BT-GDS (Cal. Super., Sacramento Cty., July 24,
2020).
The docket states that the case type is "Business Tort."
Quick Quack is a company that provides exterior car washes. The
Company is based in Roseville, California, and has operations in
Utah, Texas, Colorado, Arizona, and California with over 100 total
locations.[BN]
The Plaintiff is represented by:
Zach P. Dostart, Esq.
DOSTART HANNINK & COVENEY, LLP
4180 La Jolla Village Drive, Suite 530
La Jolla, CA 92037
Telephone: 858-623-4200
Facsimile: 858-623-4299
E-mail: ZDostart@SDLaw.com
REXAHN PHARMACEUTICALS: Thompson Challenges Merger With Ocuphire
----------------------------------------------------------------
JOHN THOMPSON, Individually and On Behalf of All Others Similarly
Situated v. REXAHN PHARMACEUTICALS, INC., PETER BRANDT, CHARLES
BEEVER, KWANG SOO CHEONG, GIL PRICE, RICHARD RODGERS, LARA S.
SULLIVAN, DOUGLAS J. SWIRSKY, RAZOR MERGER SUB, INC., and OCUPHIRE
PHARMA, INC., Case No. 1:20-cv-01036-UNA (D. Del., Aug. 3, 2020),
alleges that the Defendants violated the Securities Exchange Act of
1934 in connection with the registration statement filed in
connection with the proposed merger of the Company and Ocuphire
Pharma, Inc.
On June 17, 2020, Rexahn's Board of Directors caused Rexahn to
enter into an agreement and plan of merger with Razor Merger Sub,
Inc. and Ocuphire Pharma, Inc. Pursuant to the terms of the Merger
Agreement, among other things: (i) Merger Sub will merge with and
into Ocuphire, with Ocuphire continuing as a wholly-owned
subsidiary of Rexahn; and (ii) each share of Ocuphire common stock
will be converted into the right to receive shares of Rexahn common
stock such that former Ocuphire shareholders will own approximately
85.7% of the combined company and Rexahn's shareholders will own
approximately 14.3%.
On July 6, 2020, the Defendants filed a Form S-4 Registration
Statement with the United States Securities and Exchange
Commission, which recommends that Rexahn's stockholders vote to
approve, among other things, the issuance of stock in connection
with the Proposed Transaction.
The Plaintiff contends that the Registration Statement omits
material information with respect to the Proposed Transaction,
which renders the Registration Statement false and misleading. The
Registration Statement omits the Company's and Ocuphire's financial
projections, including the "projected financial information
relating to the business, earnings, and prospects of Rexahn and
Ocuphire that was furnished to Oppenheimer by Rexahn and Ocuphire."
Without this information, stockholders may have the mistaken belief
that, if these potentially interested parties wished to come
forward with a superior offer, they are or were permitted to do so,
when in fact they are or were contractually prohibited from doing
so, the Plaintiff adds.
The Plaintiff owns Rexahn common stock.
Rexahn is a biotechnology company that focuses on the development
of innovative therapies to improve patient outcomes in cancers that
are difficult to treat. The Individual Defendants are officers and
directors of the Company.[BN]
The Plaintiff is represented by:
Gina M. Serra, Esq.
Seth D. Rigrodsky, Esq.
Brian D. Long, Esq.
RIGRODSKY & LONG, P.A.
300 Delaware Avenue, Suite 1220
Wilmington, DE 19801
Telephone: (302) 295-5310
Facsimile: (302) 654-7530
E-mail: sdr@rl-legal.com
bdl@rl-legal.com
gms@rl-legal.com
- and -
Richard A. Maniskas, Esq.
RM LAW, P.C.
1055 Westlakes Drive, Suite 300
Berwyn, PA 19312
Telephone: (484) 324-6800
Facsimile: (484) 631-1305
E-mail: rm@maniskas.com
ROCHESTER INSTITUTE: Quattrociocchi Seeks Tuition Fee Refund
------------------------------------------------------------
NICK QUATTROCIOCCHI, individually and on behalf of all others
similarly situated, Plaintiff v. ROCHESTER INSTITUTE OF TECHNOLOGY
and other affiliated entities and individuals, Defendants, Case No.
6:20-cv-06558-EAW (W.D.N.Y., July 30, 2020) is a class action
against the Defendants for breach of contract, conversion, and
unjust enrichment.
According to the complaint, the Defendants failed to provide
in-person educational services along with other experiences,
opportunities, and services for which the Plaintiff and Class
members bargained for when they paid tuition and fees for the
Spring 2020 semester at Rochester Institute of Technology. On or
around March 15, 2020, Rochester Institute of Technology canceled
all in-person education and transitioned to complete online
education in response to the COVID-19 pandemic. Due to these
actions, the Defendants have failed to uphold their end of the
contract to provide in-person educational services and other
related collegiate experiences and services. The Plaintiff and
Class members have not received a refund of tuition and have only
received partial refunds and/or credits of fees paid to the
Defendants.
Rochester Institute of Technology is a private university located
at One Lomb Memorial Drive, Rochester, New York. [BN]
The Plaintiff is represented by:
Jason P. Sultzer, Esq.
Joseph Lipari, Esq.
Jeremy Francis, Esq.
THE SULTZER LAW GROUP, P.C.
85 Civic Center Plaza, Suite 200
Poughkeepsie, NY 12601
Telephone: (845) 483-7100
Facsimile: (888) 749-7747
E-mail: sultzerj@thesultzerlawgroup.com
liparij@thesultzerlawgroup.com
francisj@thesultzerlawgroup.com
- and –
Jeffrey K. Brown, Esq.
Michael A. Tompkins, Esq.
Brett R. Cohen, Esq.
LEEDS BROWN LAW, P.C.
One Old Country Road, Suite 347
Carle Place, NY 11514
Telephone: (516) 873-9550
E-mail: jbrown@leedsbrownlaw.com
mtompkins@leedsbrownlaw.com
bcohen@leedsbrownlaw.com
RUBY RECEPTIONISTS: Ex Parte Contact With McKenzie Class Restricted
-------------------------------------------------------------------
In the case, McKENZIE LAW FIRM, P.A., and OLIVER LAW OFFICES, INC.,
on behalf of themselves and all others similarly situated,
Plaintiffs, v. RUBY RECEPTIONISTS, INC., Defendant, Case No.
3:18-cv-1921-SI (D. Or.), Judge Michael H. Simon of the U.S.
District Court for the District of Oregon granted the Plaintiffs'
motion for an order limiting the Defendant's ex parte contact with
the class members without prior approval of the Court.
In the class action, class representatives McKenzie and Oliver are
former clients of Defendant Ruby. Ruby is a business that provides
virtual receptionist services to its clients.
On April 24, 2020, the Court certified a class consisting of: All
persons or entities in the United States who obtained receptionist
services from Defendant Ruby Receptionists between Nov. 2, 2012 and
May 31, 2018, pursuant to its form Service Agreements.
The Plaintiffs allege breach of contract, unjust enrichment, breach
of the duty of good faith and fair dealing, and money had and
received, based on Ruby's allegedly misleading billing practices.
They seek an order for the duration of the lawsuit that limits the
Defendant's ex parte contact with class members without prior
approval of the Court.
On April 27, 2020, three days after the Court certified a class in
the case and appointed the Class Counsel, the Class Counsel emailed
the Defense Counsel, stating that after certification the Class
Counsel represents all the absent class members in the matter and,
accordingly, the Defense Counsel may not contact class members
either directly or through third parties. The Class Counsel asked
whether the Defense Counsel agreed with that position, to avoid the
need for the Class Counsel to seek an order from the Court under
Rule 23(d). The Defense Counsel responded three days later, on
April 30, 2020, stating that the Defense Counsel did not agree with
the Class Counsel's position.
Judge Simon finds the Defendant's position without merit. The
Defense Counsel's response to the Class Counsel is circumstantial
evidence of a threatened communication with absent class members.
In response to the statements from Class Counsel (either on April
27 or May 1), the Defense Counsel did not state that they would
refrain from contacting absent class members before the close of
the opt-out period, at least without further direction from the
Court. By analogy, if a property owner asks a person not to enter
the owner's property and the person responds by saying that the
person has the legal right to enter the owner's property without
permission, that reasonably may be interpreted as a threat to
trespass. It would be a sufficiently concrete dispute to allow the
property owner to seek declaratory relief (and may even support an
order for preliminary injunctive relief, if the other elements
needed for that relief were shown).
The Judge is satisfied that the evidence, taken together, including
the Defense Counsel's past communications about the lawsuit with
the putative class members (i.e., before certification), shows a
threatened communication is more than a theoretical possibility.
The Court then considers whether allowing the Defendant (even
without any assistance or participation by its counsel) directly to
communicate with the absent class members about the lawsuit, its
merits, or its Class Counsel creates a risk of abuse. The Court
finds that the Defendant correctly observes that the two class
representatives are each law firms, arguing that their legal
sophistication makes them less likely to be coerced or deceived by
communications relating to the lawsuit. The Defense Counsel's past
conduct in the case also suggests a risk of abuse. The Court is
satisfied that the evidence shows a realistic risk of abuse.
Finally, the Court weighs the need for a limitation and the
potential interference with the rights of all parties and, if
appropriate, enters an order carefully drawn to limit speech as
little as possible. With regard to the Defendant's interest in
initiating communications with its clients about the lawsuit, given
that it is clear that there can be no involvement by the Defense
Counsel, it would be foolhardy for the Defendant to initiate any
communication with class members about the lawsuit. Thus, no
legitimate need would be harmed by restricting Defendant from doing
so. The Court also notes that the case involves allegations by the
Plaintiffs that the Defendant previously misled the class members,
either through misrepresentation or half-truths and only presented
accurate facts when a client asked precisely the right question.
The Defendant also may find that a class member initiates a
communication about the lawsuit when communicating with it. In
that circumstance, the Defendant must be allowed to give an
appropriate response. Weighing all these considerations, the Judge
believes that he can fashion a narrowly tailored order.
Accordingly, Judge Simon ordered that for the duration of the
lawsuit:
(i) the Defense Counsel are prohibited from communicating,
directly or indirectly, with any class member without prior consent
of the Class Counsel or leave of Court;
(ii) Defendant Ruby is prohibited from initiating any
communication with any class member regarding or referring to the
lawsuit, its claims or defenses, or its Class Counsel without prior
consent of Class Counsel or leave of Court; and
(iii) if Defendant Ruby receives a communication from any class
member that regards or refers to this lawsuit, it may respond only
by stating that it may not discuss the lawsuit or anything about it
with any client or former client, or words to that effect.
Further, the Defendant must inform all its employees and agents,
who are likely in the ordinary course of its business to receive
any communication from a client or former client, about the
restriction and the Defendant's obligations under the Order.
Nothing in (ii) or (iii) of the order will restrict or prohibit in
any way the Defendant's communications with its clients, former
clients, or prospective clients in the ordinary course of business,
provided those communications do not mention, refer, or relate to
this lawsuit, its claims or defenses, or its Class Counsel.
In addition, for the duration of the lawsuit, the Court ordered
that if the Defendant desires to initiate any communication to any
class member regarding or referring to this lawsuit, its claims or
defenses, or its Class Counsel, it must first obtain the written
prior consent of Class the Counsel or the Court.
After conferring with the opposing party, any party may ask the
Court to modify any provision of this Order.
In sum, Judge Simon granted the Plaintiffs' motion for an order
limiting the Defendant's ex parte contact with the class members
without prior approval of the Court, and imposed the Order stated.
A full-text copy of the District Court's May 29, 2020 Opinion &
Order is available at https://is.gd/IBLrtG from Leagle.com.
McKenzie Law Firm, P.A., on Behalf of Themselves and All others
Similarly Situated & Oliver Law Offices, Inc., on Behalf of
Themselves and All others Similarly Situated, Plaintiffs,
represented b yCody O. Berne -- cberne@stollberne.com -- Stoll
Berne, Gregory J. Brod -- greg@willbrod.com -- Brod Law Firm, PC,
pro hac vice, Jon M. Herskowitz , Baron & Herskowitz, 9100 S
Dadeland Blvd #1704, Miami, FL 33156, pro hac vice, Keith S.
Dubanevich -- kdubanevich@stollberne.com -- Stoll Stoll Berne
Lokting & Shlachter P.C., Laurence D. King -- lking@kaplanfox.com
-- Kaplan Fox & Kilsheimer LLP, pro hac vice, Mario M. Choi --
MChoi@kaplanfox.com -- Kaplan Fox & Kilsheimer LLP, pro hac vice,
Matthew B. George -- mgeorge@kaplanfox.com -- Kaplan Fox &
Kilsheimer, LLP, pro hac vice & Robert I. Lax --
rgrand@laxneville.com -- Lax LLP, pro hac vice.
Ruby Receptionists, Inc., Defendant, represented by Austin
Rainwater -- austin.rainwater@dlapiper.com -- DLA Piper LLP &
Andrew R. Escobar -- andrew.escobar@dlapiper.com -- DLA Piper,
LLP.
SELENE FINANCE: App. Ct. Affirms Dismissal of Amended Wheeling Suit
-------------------------------------------------------------------
In the case, WHITNEY WHEELING, ET AL., v. SELENE FINANCE LP, ET AL,
Case No. 2128, September Term 2017 (Md. Spec. App.), the Court of
Special Appeals of Maryland affirmed the circuit court's order
granting Selene and Gina Gargeu's motions to dismiss the
Appellants' amended complaint.
In 2013, the General Assembly enacted Md. Code, Section 7-113 of
the Real Property Article to restrict the use of self-help in
certain kinds of residential evictions. Eric Wheeling, Whitney
Wheeling, and Joanne Rodriguez filed suit in the Circuit Court for
Baltimore City against Selene Finance LP and Gina Gargeu (doing
business as Century 21 Downtown), alleging that they had violated
Section 7-113 in their efforts to obtain possession of two
residential properties. The Wheelings and Rodriguez also asserted
that Selene's actions violated the Maryland Consumer Protection Act
("MCPA").
On March 1, 2017, the Appellants filed a joint complaint in the
Circuit Court for Baltimore City on behalf of themselves and a
proposed class of persons similarly situated. On May 30, 2017,
they filed an amended complaint. The amended complaint asserted
two claims against Selene and Gargeu.
First, the complaint alleged that Selene and Gargeu violated Real
Prop. Section 7-113(b) by making threats of eviction without first
making a reasonable inquiry as to whether the properties were, in
fact, abandoned. Second, the complaint alleged that Selene and
Gargeu violated the MCPA by threatening to take possession of their
properties by way of the abandonment notices. The Appellants asked
the Court to certify their claims as a class action, to grant
declaratory and injunctive relief, and to award them monetary
damages and attorneys' fees.
Gargeu and Selene filed motions to dismiss the amended complaint
for failure to state a cause of action.
On Aug. 8, 2017, the circuit court held a hearing on the motions to
dismiss.
Selene and Gargeu argued that: (1) they were not liable under Real
Prop. Section 7-113 because the abandonment notices did not
constitute a "threat" as defined in that statute; (2) the MCPA did
not apply in the case because (a) the Appellants are not
"consumers" as defined in the MCPA, and (b) posting an abandonment
notice on a residence is not a collection activity within the
provisions of the MCPA; (3) Selene, as a licensed mortgage lender,
was exempt from the provisions of the MCPA; and (4) the Appellants
did not sufficiently plead damages in their complaint and could not
show any accompanying physical manifestations of that distress.
The Appellants responded that Section 7-113 requires a party who
posts an abandonment notice to first make a reasonable inquiry as
to the occupancy status of the property, and that Selene and Gargeu
failed to do it before posting the abandonment notices. They
pointed out that the amended complaint alleged that both properties
were inhabited at the time the abandonment notices were posted.
The Appellants also elaborated on their claim for damages for
emotional distress. They asserted that the MCPA allows for
non-economic damages.
On Dec. 4, 2017, the circuit court granted both motions to dismiss
without leave to amend. The circuit court concluded that the
abandonment notices posted by Selene and Gargeu conformed with the
provisions of Real Prop. Section 7-113. As to Selene, the court
concluded that the amended complaint failed to allege sufficient
facts which state a claim upon which relief can be granted because
the Appellants were not evicted or otherwise deprived of their
property, and so did not suffer an objectively identifiable actual
injury. As to Gargeu, the court concluded the MCPA did not apply
to her because Com. Law Section 13-104 exempts real estate brokers
from the provisions of the MCPA.
The timely appeal followed.
The Appellants raise three issues: (i) Whether the circuit court
erred in ruling that the Appellants failed to plead a claim
pursuant to the statutory cause of action established by Real Prop.
Section 7-113; (ii) Whether the circuit court erred in ruling that
appellants failed to plead a claim under the MCPA; and (iii)
Whether the circuit court erred in ruling that the Appellants
failed to adequately plead that they suffered actual injuries as a
result of Selene's and Gargeu's actions.
The Appellate Court holds that although they see things a bit
differently than did the circuit court, it will affirm the circuit
court judgment. The amended complaint alleges facts which, if
proven, establish that Selene and Gargeu violated Section 7-113.
However, the cause of action established by the statute extends
only to cases in which a defendant has locked the Plaintiff out of
the property, intentionally terminates or diminishes utility, water
and sewer and similar services to the property, or takes any other
action which deprives a resident of actual possession of the
property. The amended complaint does not assert that any of these
things happened in the case. Assuming for purposes of analysis
that Selene's actions violated the MCPA, the amended complaint
fails to allege damages with the specificity required for private
causes of action under that statute.
The Appellate Court concludes that the amended complaint does not
allege that the Appellants manifested any observable physical
manifestations of the emotional distress caused by Selene. Rather,
the allegations regarding emotional distress amount to nothing more
than assertions that Selene's actions upset them. The MPCA
requires more in order for a complaint to survive a motion to
dismiss for failure to state a cause of action. The result doesn't
change because appellants also alleged that they contacted
attorneys for advice as to their rights after learning of the
notices. If, for the purposes of a private action under the MCPA,
attorney's fees incurred for such purposes were enough to satisfy
Com. Law Section 13-408(a)'s requirement that a plaintiff
demonstrate an "injury or loss sustained" as the result of the
violation of the statute, the limitations imposed by Lloyd,
CitraManis and other decisions would be rendered meaningless.
The Appellate Court affirmed the circuit court's order granting
Selene and Gargeu's motions to dismiss the Appellants' amended
complaint. The Appellants will pay the costs.
A full-text copy of the Appellate Court's May 29, 2020 Opinion is
available at https://is.gd/vmBfKH from Leagle.com.
SENTINEL: Oaklandish Joins Business Interruption Claim Lawsuit
--------------------------------------------------------------
Andrew Asch, writing for California Apparel News, reports that
known for its T-shirts and apparel, the Oaklandish brand made a
business out of producing clothing bearing slogans of civic pride
for the San Francisco Bay Area city Oakland, Calif., however,
Angela Tsay, the brand's chief executive officer and creative
director, said that the 20-year-old company's ability to cheer for
its hometown may be hobbled by its insurance company.
Oaklandish's insurance company, Sentinel Insurance LTD, denied its
business-interruption insurance claim, according to a class-action
lawsuit that was filed July 20 in United States District Court for
Northern District of California, which is headquartered in San
Francisco.
A jury trial was requested by the company's lawyers Gibbs Law
Group, which has offices in Oakland, and Cohen Milstein Sellers and
Toll PLLC, based in Washington, D.C. The class-action suit will
request more than $5 million to cover the damages from the denial
of business-interruption insurance.
This group of lawyers has formed a COVID-19 Business Interruption
Insurance Coverage Task Force, which has sued insurance companies
on behalf of businesses that claimed denial of
business-interruption coverage. For such claims, they have
represented businesses such as Mudpie, a 44-year-old of children's
clothing, toys and accessories boutique based in San Francisco's
Fillmore District. Another business that has worked with the task
force is Chez Panisse, the world-famous Berkeley, Calif.,
restaurant.
The complaint for Oaklandish's suit said that the apparel company
followed rules and paid for business-interruption insurance.
However, when the company needed the support of the insurance
policy, its insurance company did not come through. It left the
company without coverage and the brand was unable to pay rent for
its two bricks-and-mortar retail locations, which forced the
business to furlough nearly all of its employees. A statement from
Oaklandish's lawyers said that the company is stable, but it is
still feeling the hurt from the damage stemming from its coverage
denial. It's not a unique grievance, which is the reason the
attorneys have included it in the class-action suit.
"Insurance companies operating in California are categorically
denying claims from retailers arising from California's mandated
interruption of business services. Those denials are often made
with little or no investigation and without due regard for the
interest of the insureds," the complaint said. "Indeed, form
letters denying coverage for such losses appear to rest on crabbed
readings of coverage language and overboard readings of exclusions.
That gets insurance law exactly backwards—and raises the specter
of bad-faith denials. Oaklandish's experience is no different. It
has dutifully followed California's mandates. Facing serious
financial harm, it has filed a claim with Sentinel for business
interruption coverage. Defendant swiftly denied the claim."
A spokesman for Sentinel's parent company, The Hartford, said that
Sentinel was not liable for pandemic claims.
"Responding to customers' claims and doing it well is at the heart
of who we are. We are in the business of paying claims. We pay
often and a lot--when there is a storm, fire or anything else that
is covered by a customer's insurance policy," said Matthew
Sturdevant, The Hartford's director of media and public relations.
"Tragically, millions of businesses across the country have closed
their doors because of government-ordered shutdowns. Unfortunately,
viruses are generally outside the scope of business interruption
coverage. These policies do not cover this exposure and,
accordingly, premiums were never collected for it." [GN]
SINCLAIR BROADCAST: Court Dismisses Securities Class Action
-----------------------------------------------------------
Holly Barker, writing for Bloomberg Law, reports that a securities
class action against Sinclair Broadcast Group, Inc. brought by
Atlanta city police and firefighter pension funds in connection
with the company's failure to complete a proposed $3.9 billion
acquisition of Tribune Media was dismissed, according to a federal
court ruling.
The U.S. District Court for the District of Maryland declined on
July 20 to reconsider its dismissal of nearly all of the funds'
claims, reducing the proposed class period from 17 months to two
weeks. Because the funds were unable to identify a suitable
investor to prosecute the surviving claims, Judge Catherine C.
Blake dismissed the suit altogether. [GN]
SKANSKA USA: Class in Cortese FLSA Suit Conditionally Certified
---------------------------------------------------------------
In the case, ANTHONY CORTESE, Plaintiff, v. SKANSKA USA INC. et
al., Defendants, Case No. 19-cv-11189 (JSR) (S.D. N.Y.), Judge Jed
S. Rakoff of the U.S. District Court for the Southern District of
New York (i) granted Cortese's motion under 29 U.S.C. Section
216(b) for conditional certification of a Fair Labor Standards Act
("FLSA") collective; and (ii) granted in part and denied in part
the Defendants' motion under Fed. R. Civ. P. 12(b)(6) to dismiss
seven of the nine counts of the Plaintiff's complaint.
Cortese, a crane operator affiliated with a New Jersey-based union
local, alleges that he was underpaid by Defendants Skanska USA and
Skanska Koch for regular-hour and overtime work that he performed
on the New York side of the George Washington Bridge. The case is
a putative FLSA collective action and Rule 23 class action alleging
various wage and overtime violations, as well as breach of contract
and unlawful retaliation.
Cortese is a member of the International Union of Operating
Engineers, Local 825, based in New Jersey. He alleges that for
several months in 2019, he was employed by Defendants Skanska USA
and Skanska Koch as a crane operator on the George Washington
Bridge restoration project, which is managed by the Port Authority
of New York and New Jersey.
During the course of his employment, the Plaintiff regularly
performed work, including overtime work, on both the New Jersey
side and the New York side of the span. He alleges that many other
workers did the same: the project was staffed by union laborers
based in both New York and New Jersey, and because of
constructability, practicality and feasibility issues, all of these
employees were permitted to work on both sides of the state line.
The gravamen of the Plaintiff's complaint is that he was
compensated at the prevailing wage rate set by the federal
Davis-Bacon Act for crane operators in New Jersey (a base rate of
$54.13 per hour) even for work that he performed on the New York
side of the bridge, which, he claims, should have been remunerated
at the equivalent New York prevailing wage (and his overtime wages
calculated as one-and-a-half times that rate). That would be
either the New York City prevailing wage set pursuant to Section
220 of the New York Labor Law (NYLL) ($81.54 per hour), or at least
the Davis-Bacon Act prevailing wage for New York ($76.43 per hour).
The Plaintiff asserts two bases for his entitlement to the New York
prevailing wage for work performed in New York. The first is
contractual. The contract between defendants and the Port
Authority provides that the Defendants must compensate the
Plaintiff at least the Davis-Bacon Act prevailing rate of wage in
the locality in which the work is being performed. The second is
statutory. The Plaintiff asserts that New York law, specifically,
NYLL Section 220, entitles laborers on public works projects to
receive a particular prevailing wage for work performed in the
state.
These facts, according to the Plaintiff, give rise to nine causes
of action. Count One alleges an overtime violation under FLSA,
claiming that the Plaintiff was entitled to be compensated for
overtime performed on the New York side of the bridge at
one-and-a-half times the New York prevailing wage rate, not
one-and-a-half times the lower New Jersey rate. The count appears
to be predicated on either a contractual or a statutory entitlement
to the higher wage.
Next, Counts Two through Four allege that the efendants' failure to
pay the New York prevailing wage for work performed in New York --
both regular and overtime work -- violated the Plaintiff's
statutory entitlement under NYLL Section 220 to receive a New York
prevailing wage. These counts are predicated on the asserted
statutory entitlement to the higher wage.
Counts Five through Seven assert state common law claims, arising
under the contract between the Defendants and the Port Authority,
for quantum meruit, unjust enrichment, and breach of contract,
alternatively.
Finally, in Counts Eight and Nine, the Plaintiff alleges in his
individual capacity that the Defendants unlawfully retaliated
against him for raising the issue of his entitlement to a higher
wage, in violation of the NYLL and FLSA.
The Defendants move to dismiss Counts One through Seven of the
Complaint. Counts Eight and Nine, the retaliation claims brought
by the Plaintiff in his individual capacity, are not at issue on
the motion.
Counts Two through Four assert that NYLL Section 220(3)(a) entitles
a plaintiff to the New York prevailing wage for work performed on
the New York side of the George Washington Bridge, and thus to
one-and-a-half times that amount for such overtime work. Judge
Rakoff dismissed these because the Plaintiff did not exhaust his
administrative remedies as required by the statute.
He holds that the New York Court of Appeals expressly held that New
York's prevailing wage law, NYLL Section 220, does not apply to the
Port Authority. The Defendants read the decision more broadly,
that is, to provide that Port Authority projects are not public
works projects within the meaning of NYLL Section 220(2), and that
contractors of the Port Authority thus cannot be required to pay
prevailing wages. But even assuming arguendo that this reading is
correct, it would exempt contractors only from the prevailing wage
statute, NYLL Section 220, and not from the more general wage and
hour provisions that provide the causes of action for the
Plaintiff's contract-based claims. The Judge accordingly finds no
broad exemption from the NYLL for contractors of the Port
Authority.
The Defendants next move to dismiss Count One, which alleges the
FLSA overtime violation that forms the basis of the Plaintiff's
putative collective action. The Judge finds that the question
remains whether Grochowski v. Phoenix Const. nonetheless controls
the case because the Plaintiff's asserted prevailing wage
entitlement, or at least one theory of it, relates to the
Davis-Bacon Act. But in the case, unlike in Grochowski, the
Davis-Bacon Act's prevailing wage scheme allegedly applies as a
matter of contract, not by force of statute. The Act's exclusive
administrative remedy, the relevance of which undergirded the
Second Circuit's holding in Grochowski, is therefore inapplicable
to the Plaintiff. For these reasons, the Judge holds that
Grochowski does not bar the Plaintiff's FLSA overtime claim, and
the motion to dismiss Count One is accordingly denied.
Finally, in Counts Five through Seven, the Plaintiff alleges state
common law claims for, alternatively, breach of contract, unjust
enrichment, and quantum meruit, for both regular and overtime hours
worked in New York. His breach of contract allegations are the
same as those described.
Given the Court's holding that Count One states a valid FLSA
overtime claim, any claim for overtime wages alleged in the
contract and quasi-contract claims in Counts Five through Seven
would necessarily be duplicative. As in DeSilva v. North
Shore-Long Island Jewish Health System, Inc., where plaintiff
employees alleged FLSA and breach of contract claims for regular
and overtime work performed during meal and break times, the common
law claims for overtime pay must be dismissed with prejudice. But
these claims need not be dismissed insofar as they relate to
non-overtime hours, as FLSA does not protect contractual rights to
wages above the statutory minimum wage.
Because he denies the Defendants' motion to dismiss the Plaintiff's
FLSA overtime claim (Count One), the Judge must next consider the
Plaintiff's motion for conditional certification of an FLSA
collective. Although somewhat vague and conclusory as to the
identities of the potential opt-in Plaintiffs and the union trades
that they represent, the Judge deems it a sufficient "modest
factual showing" of a common policy that similarly disadvantaged a
group of potential opt-in Plaintiffs. The essence of the claim --
that the Defendants' contract with the Port Authority guarantees
each laborer the prevailing wage associated with his trade for the
location in which his work was performed -- is the same for every
Plaintiff.
The only conceivably-relevant discovery with respect to each of the
opt-in Plaintiff will be (1) whether he performed overtime work in
New York, and, if so, (2) whether he was compensated at the New
York or the New Jersey prevailing wage associated with his trade
for such labor. Accepting the Plaintiff's allegations as true, the
Court deems the potential opt-in Plaintiffs to be
similarly-situated and the victims of a common policy, and the
Plaintiff's motion for conditional certification is accordingly
granted.
For the foregoing reasons, Judge Rakoff (i) granted the motion for
conditional certification, and (ii) granted in part and denied in
part the motion to dismiss.
A full-text copy of the District Court's May 26, 2020 Opinion is
available at https://is.gd/NspLx7 from Leagle.com.
SQUARETRADE INC: Starke May Not Intervene in Swinton, 8th Cir. Says
-------------------------------------------------------------------
The U.S. Court of Appeals for the Eighth Circuit affirmed the
district court's order denying Adam J. Starke's motion to intervene
in the case, David M. Swinton, on behalf of himself and all others
similarly situated Plaintiff-Appellee, v. Squaretrade, Inc.
Defendant-Appellee. Adam J. Starke, Movant-Appellant, Case No.
18-3186 (8th Cir.).
In December 2016, Starke filed a class action complaint against
SquareTrade in the U.S. District Court for the Eastern District of
New York. The complaint alleged he purchased a Protection Plan for
a consumer device from SquareTrade that violated consumer
protection laws, including deceptive sale of unprotected Amazon
products and inaccessible pre-sale Terms and Conditions.
In April 2018, Swinton filed a nearly identical complaint in Iowa
state court. Swinton had approached his counsel with concerns
about SquareTrade's practices. Counsel then copied Starke's
Complaint. SquareTrade removed the Swinton Action to the U.S.
District Court for the Southern District of Iowa.
In the Starke Action, SquareTrade moved to compel arbitration. The
district court refused. The Second Circuit affirmed the district
court ruling.
Meantime, in the Swinton Action, SquareTrade moved to compel
arbitration, but reached class-wide settlement. Before Swinton and
SquareTrade moved for preliminary approval of the settlement,
Starke moved to intervene and to stay under the first-to-file rule.
The district court denied the motion. It did permit Starke to
file an amicus brief opposing the settlement.
In the Starke Action, before SquareTrade answered, the New York
district court stayed the case pending final approval of the
proposed class action settlement in the Swinton Action. In April
2020, the Swinton district court approved class-wide settlement.
The settlement has four key features: (i) refunding class members
the purchase price of the product under the Protection Plan (less
15%); (ii) providing each class member a $10 coupon for a
mobile-phone Protection Plan; (iii) awarding attorneys' fees of
$25,000 (plus 15% of refunds); and (iv) requiring SquareTrade to
change its Amazon storefront.
Starke appeals the denial of his motion to intervene in the Swinton
Action.
The Eighth Circuit reviews de novo a district court's intervention
determination. It must accept as true all material allegations in
the motion to intervene and must construe the motion in favor of
the prospective intervenor.
Under Federal Rule of Civil Procedure 24(a)(2), a court must permit
anyone to intervene who: (1) files a timely motion to intervene;
(2) claims an interest relating to the property or transaction that
is the subject of the action; (3) is situated so that disposing of
the action may, as a practical matter, impair or impede the
movant's ability to protect that interest; and (4) is not
adequately represented by the existing parties. The parties do not
contest the first two requirements: Starke timely moved to
intervene, and claimed an appropriate interest. They contest the
third requirement: whether Starke is situated so that disposing of
the Swinton Action may impair his interests.
The Eighth Circuit holds Starke is. Members of a class, like
Starke, "may" have their interests impaired by disposition of the
class action. The Supreme Court say that members of a class have a
right to intervene if their interests are not adequately
represented by existing parties. The district court ruled that
Starke would not be impaired by disposition of the Swinton Action
because he can opt out of the Swinton settlement. He is adequately
represented by Swinton, who seeks the same relief for the same
claims as Starke. For these reasons, the Eighth Circuit affirms
the district court's denial of intervention.
Starke also sought a stay under the first-to-file rule. He argues
the Court can exercise pendent appellate jurisdiction because the
motion to stay is inextricably intertwined with the motion to
intervene. The Eighth Circuit holds that claims are inextricably
intertwined when resolution of the direct claim 'necessarily
resolves' the pendent claim. The motion to intervene, on the other
hand, requires analysis of the four factors in Federal Rule 24. The
resolution of the motion to intervene does not necessarily resolve
the motion to stay. The Court does not have pendent appellate
jurisdiction.
In light of the foregoing, the Eighth Circuit affirmed the district
court's judgment.
A full-text copy of the Eighth Circuit's May 29, 2020 Order is
available at https://is.gd/7Uu02I from Leagle.com.
SS&C TECHNOLOGIES: Siyam's FLSA Suit Wins Collective Status
------------------------------------------------------------
In class action lawsuit captioned as DINA SIYAM, and all other
similarly situated employees of SS&C, et al., v. SS&C TECHNOLOGIES,
INC., Case No. 3:19-cv-18535-MAS-DEA (D.N.J.), the Hon. Judge
Michael A. Shipp entered an order on July 28, 2020, granting the
Plaintiff's motion for conditional certification of a collective
action pursuant to the Fair Labor Standards Act.
The Court said, "By August 28, 2020, the parties shall submit a
joint proposed notice, notice procedures, and data request for the
Court's approval. To the extent the parties disagree, the parties
shall explain any disputes and submit alternative forms of notice,
notice procedures, and data requests for the Court's approval."
SS&C is an American multinational financial technology company
headquartered in Windsor, Connecticut that sells software and
software as a service to the financial services industry. The
company has offices in the Americas, Europe, Asia, Africa and
Australia.[CC]
STATE FARM: Jaunich Sues Over Hidden Charges
--------------------------------------------
John E. Jaunich, individually and on behalf of all others similarly
situated, Plaintiff, v. State Farm Life Insurance Company,
Defendant, Case No. 20-cv-01567 (D. Minn., July 13, 2019), seeks to
recover amounts State Farm charged and collected in excess of
amounts authorized by the express terms of life insurance
policies.
State Farm Life Insurance Company is a life insurance company based
in Bloomington, Illinois. Jaunich purchased a flexible premium
adjustable whole life insurance policy from State Farm with a basic
amount of $50,000. Although his policy authorizes State Farm to use
only certain, specified factors in determining Monthly Cost of
Insurance Rates, Jaunich alleges that State Farm also uses other
factors, not authorized by his policy, when determining those
rates, including, without limitation, profit and expenses causing
those rates to be higher than what is explicitly authorized by his
policy. As a result, the Cost of Insurance Charges deductions from
policy owner Account Values are in amounts greater than what is
permitted by the policy. [BN]
Plaintiff is represented by:
Karen Hanson Riebel, Esq.
Maureen Kane Berg, Esq.
LOCKRIDGE GRINDAL NAUEN P.L.L.P.
Suite 2200 100 Washington Avenue South
Minneapolis, MN 55401-2159
Tel. (612) 339-6900
Email: khreibel@locklaw.com
mkberg@locklaw.com
- and -
John J. Schirger, Esq.
Matthew W. Lytle, Esq.
Joseph M. Feierabend, Esq.
MILLER SCHIRGER, LLC
4520 Main Street, Suite 1570
Kansas City, MO 64111
Telephone: (816) 561-6500
Facsimile: (816) 561-6501
Email: jschirger@millerschirger.com
mlytle@millerschirger.com
jfeierabend@millerschirger.com
- and -
Norman E. Siegel, Esq.
Patrick J. Stueve, Esq.
Ethan Lange, Esq.
Lindsay Todd Perkins, Esq.
STUEVE SIEGEL HANSON LLP
460 Nichols Road, Suite 200
Kansas City, MO 64112
Telephone: (816) 714-7100
Facsimile: (816) 714-7101
Email: siegel@stuevesiegel.com
stueve@stuevesiegel.com
lange@stuevesiegel.com
perkins@stuevesiegel.com
- and -
John Yanchunis, Esq.
MORGAN & MORGAN
201 North Franklin Street, 7th Floor
Tampa, FL 33602
Telephone: (813) 275-5272
Facsimile: (813) 222-4736
Email: jyanchunis@forthepeople.com
SYNCHRONOSS TECHNOLOGIES: Court Narrows Claims in Securities Suit
-----------------------------------------------------------------
Judge Freda L. Wolfson of the U.S. District Court for the District
of New Jersey denied in part and granted in part the Defendants'
Motion to Dismiss the Plaintiff's Second Amended Complaint in IN RE
SYNCHRONOSS TECHNOLOGIES, INC. SECURITIES LITIGATION THIS DOCUMENT
RELATES TO: ALL ACTIONS, Civil Action No. 17-2978 (FLW) (LHG) (D.
N.J.).
Lead Plaintiff, the Retirement System of the State of Hawaii,
commenced the putative securities class action, on behalf of itself
and all other similarly situated individuals, against Synchronoss,
a company involved in licensing software to cell phone service
providers, as well as Synchronoss' former CEO, Stephen G. Waldis,
and its former CFO, Karen L. Rosenberger, alleging violations under
the Securities Exchange Act of 1934, and the rules promulgated
thereunder.
Synchronoss was founded in 2000 by Waldis, a former AT&T executive,
who established an ongoing relationship between the Company and
AT&T to provide activation services to consumers who bought new
mobile devices with AT&T as service provider. Synchronoss provided
software licenses to AT&T that enabled the consumer to simply open
the box, automatically activate the cell phone and troubleshoot
issues using a Synchronoss customer call center.
On May 1, 2017, two business days after the Company announced lower
than expected financials, the Plaintiffs filed the action, alleging
that the Company's miss of its Q12017 projections was the result of
an alleged fraud perpetrated by the Company and its senior
executives.
The putative class period is from Oct. 28, 2014 and June 13, 2017.
During that time, the Plaintiff alleges that the Defendants
fraudulently inflated Synchronoss stock by knowingly falsifying the
Company's publicly reported revenues, and that the Plaintiff and
other investors relied on these material misrepresentations and
omissions to their detriment. Relying on the testimony of eight
confidential witnesses, the Plaintiff points to certain deals that
were improperly recognized as revenue before the contracts were
executed: (1) two AT&T purchase transactions that were booked as
revenue in late 2015 that allegedly never occurred; (2) a $5
million Verizon contract that was recognized as revenue in the
first quarter of 2016, when the deal was apparently only in the
initial discussion phase; and (3) a $25 million deal with Verizon
that was recognized as revenue in the third quarter of 2016 before
the contract was signed.
Moreover, the Plaintiff claims that the Defendants improperly
accounted for acquisitions and divestures. Specifically, in 2016,
the Company announced it would divest 70% of its Activation
business in a deal with a small, privately held company known as
Sequential Technology International, LLC. In connection with that
transaction, Synchronoss and Sequential entered into a software
license agreement under which Sequential obtained a perpetual
license for certain analytics software products owned by
Synchronoss, which was valued at $9.2 million by the Company.
Synchronoss booked the $9.2 million licensing fee as revenue in the
fourth quarter of 2016 but did not disclose that booking until
months later. Further, the Plaintiff alleges that the Defendants
violated certain generally accepted accounting principles ("GAAP")
by recognizing as revenue a $10 million patent-dispute settlement
payment by Openwave as standalone license revenue when it should
have treated this $10 million as a reduction of the purchase price
Synchronoss paid to acquire Openwave.
Finally, the Plaintiff alleges that the Defendants utilized a
"flash file" to "determine which expenses to bury or remove down
below the line' so as to show attractive, but false, margins in the
Company's financial reports. The alleged misclassification of
expenses allegedly included reclassifying employee salaries as
"research and development" costs.
Following the consolidation of numerous similar complaints, but
before any consolidated complaint was filed, Synchronoss announced
that it would be restating certain prior financial results for the
years 2014 through 2016. The Plaintiffs then filed a Consolidated
Complaint on Nov. 30, 2017.
The Defendants moved to dismiss the Consolidated Complaint in
February 2018, which was pending when Synchronoss filed the
Restatement on July 9, 2018. The Lead Plaintiff filed its Amended
Complaint on Aug. 24, 2018. The Defendants thereafter moved to
dismiss the Amended Complaint. In an Opinion dated July 2, 2019,
the Court dismissed the Amended Complaint without prejudice,
finding that the Plaintiff failed to sufficiently allege that the
Defendants acted with the requisite scienter.
In accordance with that Opinion, the Plaintiff filed a Second
Amended Complaint (SAC) on Aug. 14, 2019. The Plaintiff added
information obtained from five additional confidential witnesses
that the Plaintiff claims support an inference of scienter.
Thereafter, the Defendants filed the present motion, arguing that
the SAC should be dismissed for failure to, again, adequately
allege scienter because the new allegations fail to properly cure
the deficiencies highlighted by the Court in the Opinion dismissing
the Amended Complaint.
Judge Wolfson finds that the Plaintiff has adequately demonstrated
on the motion that: (1) the Company had a practice of requiring
written signed contracts before revenue was recognized, (2) the
Company recognized certain deals as completed before the contracts
were signed, and (3) Rosenberger was aware that such deals were
recognized without a signed contract. It is sufficient to allege
violations of the GAAP standard in question and, further,
sufficient grounds from which to infer scienter as to Rosenberger.
The Judge also finds that putting aside the timing of Rosenberger's
stock sales, the Plaintiff has not demonstrated that scienter can
be inferred from the Company's misapplication of this complex
accounting standard. The Plaintiff merely alleges that, based on
Rosenberger's experience and training as a CPA, she must have known
that the Company's revenue recognition of these two transactions
was improper. However, such statements that a defendant "must have
known" that the Company's actions were improper are not
sufficiently particularized to provide an inference of scienter.
Thus, even if the Plaintiff is correct that the Defendants violated
the GAAP standard, it fails to plead the "more" required to support
any inference of scienter from that violation.
The Plaintiff's allegations with respect to the stock sales of
Rosenberger and Waldis fail to support a strong inference of
scienter. Taken together, the Judge finds that the Plaintiff's
allegations with respect to Rosenberger are as compelling as any
opposing inference of non-fraudulent intent. The Plaintiff has
sufficiently pled that, at a minimum, Rosenberger was aware that
certain contracts, most notably the $25 million and $5 million
Verizon contracts, were recognized prior to receipt of a signed
contract on each deal. The Plaintiff has not, however, made such a
showing with respect to Waldis. Unlike Rosenberger, the Plaintiff
fails to allege that Waldis was involved in the improper
recognition of revenue, which are the only allegations presented by
Plaintiff that support a substantial inference of scienter.
Accordingly, the claims against Waldis will be dismissed.
In addition to arguing that the Plaintiff's Restatement-related
claims must be dismissed based on its failure to adequately plead
scienter, the Defendants further argue that its claims related to
false or misleading forward-looking statements made by the
Defendants, i.e., the Defendants' "guidance statements projecting
revenue" for the third quarter of 2016 and the full year of 2017,
are protected by the PSLRA safe harbor for forward-looking
statements.
Judge Wolfson finds that the Plaintiff has not made the requisite
showing of actual knowledge. It has similarly failed to allege
actual knowledge with respect to the 2017 revenue guidance that was
put forth on the December and February calls. Absent these
particularized allegations, the safe harbor covers the 2017 revenue
projections made on the December and February calls. Accordingly,
the Plaintiff's forward-looking claims will be dismissed.
The Plaintiff additionally alleges that the Individual Defendants
are liable under Section 20(a) of the Exchange Act. As the Judge
has found that the Plaintiff has sufficiently pled a Section 10(b)
claim against Rosenberger, the Section 20(a) claim against
Rosenberger will proceed. The Section 20(a) claim against Waldis
will be dismissed.
Based on the foregoing, Judge Wolfson denied in part and granted in
part the Defendants' Motion to Dismiss. The Plaintiff's Section
10(b) and Rule 10b-5 and Section 20(a) claims are limited to claims
against Rosenberger based upon the alleged improper recognition of
revenue absent signed contracts.
The Plaintiff's claims based upon the alleged manipulation of
expenses and alleged improper accounting for acquisitions and
divestures are dismissed, the Court rules. The Plaintiff's claims
based on the Defendants' forward-looking statements are also
dismissed, the Court further rules.
Furthermore, because the Plaintiff has not adequately alleged facts
suggested a strong inference of scienter as to Waldis, the claims
against him are dismissed without prejudice. To the extent the
Plaintiff seeks to cure any of the deficiencies in its pleadings
highlighted in the Opinion, it must file a motion to amend.
A full-text copy of the District Court's May 29, 2020 Opinion is
available at https://is.gd/Mp1Bli from Leagle.com.
TANDEM DIABETES: Data Breach-Related Class Suits Dismissed
----------------------------------------------------------
Tandem Diabetes Care, Inc. said in its Form 10-Q Report filed with
the Securities and Exchange Commission on July 30, 2020, for the
quarterly period ended June 30, 2020, that the four federal class
action suits related to the data breach the company experienced in
January 2020 have been dismissed.
In April 2020, the company was named as a defendant in four federal
class action lawsuits, each of which was subsequently dismissed.
Each one was brought in response to a data breach the company
experienced in January 2020. The four dismissed lawsuits are as
follows:
- On April 1, 2020, C.H., individually, and on behalf of all others
similarly situated v. Tandem Diabetes Care, Inc. was filed against
the company in the Southern District of the United States District
Court. The complaint alleged negligence and violations of the
California Confidentiality of Medical Information Act (CMIA).
Plaintiff filed a Notice of Voluntary Dismissal on May 22, 2020.
- On April 8, 2020, Joseph Deluna, on behalf of himself and all
others similarly situated v. Tandem Diabetes Care, Inc. was filed
against the company in the Central District of the United States
District Court. The complaint alleged negligence and violations of
the CMIA and the Federal Trade Commission Act (FTCA). Plaintiff
filed a Notice of Voluntary Dismissal on May 22, 2020.
- On April 16, 2020, Jose Lopez, individually and on behalf of all
others similarly situated v. Tandem Diabetes Care, Inc. was filed
against the company in the Southern District of the United States
District Court. The complaint alleged negligence and violations of
the FTCA, CMIA, California's Unfair Competition Law (UCL),
California's Consumer Record Act, and the California Consumer
Privacy Act of 2018 (CCPA). This complaint also alleged that the
security incident created a breach of contract and a breach of the
implied covenant of good faith and fair dealing. Plaintiff filed a
Notice of Voluntary Dismissal on May 22, 2020.
- On April 16, 2020, Samantha Henrichsen, and her minor son, A.R.,
individually, and on behalf of all others similarly situated v.
Tandem Diabetes Care, Inc. was filed against the company in the
Southern District of the United States District Court. The
complaint alleged negligence and violations of the CMIA, the
Illinois Consumer Fraud and Deceptive Business Practices Act, and
the Illinois Uniform Deceptive Trade Practices Act. This complaint
also alleged that the security incident created a breach of
contract. Plaintiffs filed a Notice of Voluntary Dismissal on May
22, 2020.
Tandem Diabetes Care, Inc. is a public US medical device
manufacturer based in San Diego, CA. The company develops medical
technologies for the treatment of diabetes and specifically insulin
infusion therapy.
TANDEM DIABETES: Defends 3 Calif. Class Suits over Data Breach
--------------------------------------------------------------
Tandem Diabetes Care, Inc. said in its Form 10-Q Report filed with
the Securities and Exchange Commission on July 30, 2020, for the
quarterly period ended June 30, 2020, that the company has been
named as a defendant in three California state court class action
lawsuits arising from the data breach the company experienced in
January 2020.
Collectively, these lawsuits seek statutory, compensatory, actual,
and punitive damages; equitable relief, including restitution; pre-
and post-judgment interest; injunctive relief; and attorney fees,
costs, and expenses from the company. The three pending lawsuits
are as follows:
- On May 8, 2020, Stephanie Matthews, individually and on behalf of
all others similarly situated vs. Tandem Diabetes Care, Inc. was
filed against the company in the Superior Court of the State of
California for the County of Sacramento. The complaint alleged
violations of the California Confidentiality of Medical Information
Act (CMIA) and California's Unfair Competition Law (UCL).
- On May 22, 2020, Joseph Deluna, Conor Soraghan, Salvador
Rodriguez, individually, and on behalf of all others similarly
situated vs. Tandem Diabetes Care, Inc. was filed against the
company in the Superior Court of the State of California for the
County of San Bernardino. The complaint alleged violations of the
CMIA, the California Consumer Privacy Act of 2018 (CCPA), UCL, and
breach of contract.
- On May 27, 2020, Jane Doe 1, individually and on behalf of all
others similarly situated vs. Tandem Diabetes Care, Inc. was filed
against the company in the Superior Court of the State of
California for the County of Kings. A First Amended Complaint (FAC)
was filed on June 12, 2020. The FAC alleged violations of the CMIA,
UCL, and CCPA.
Although the company intend to vigorously defend against these
claims, there is no guarantee that it will prevail. Accordingly,
the company is unable to determine the ultimate outcome of these
lawsuits or determine the amount and range of potential losses
associated with the lawsuits.
Tandem Diabetes Care, Inc. is a public US medical device
manufacturer based in San Diego, CA. The company develops medical
technologies for the treatment of diabetes and specifically insulin
infusion therapy.
TELADOC HEALTH: Continues to Defend Reiner Suit
-----------------------------------------------
Teladoc Health, Inc. said in its Form 10-Q Report filed with the
Securities and Exchange Commission on July 30, 2020, for the
quarterly period ended June 30, 2020, that the company continues to
defend a purported securities class action suit entitled, Reiner v.
Teladoc Health, Inc., et.al.
On December 12, 2018, a purported securities class action complaint
(Reiner v. Teladoc Health, Inc., et.al.) was filed in the United
States District Court for the Southern District of New York
against the Company and certain of the Company's officers and a
former officer.
The complaint is brought on behalf of a purported class consisting
of all persons or entities who purchased or otherwise acquired
shares of the Company's common stock during the period March 3,
2016 through December 5, 2019.
The complaint asserts violations of Sections 10(b) and 20(a) of the
Securities Exchange Act of 1934 based on allegedly false or
misleading statements and omissions with respect to, among other
things, the alleged misconduct of one of the Company’s previous
Executive Officers.
The complaint seeks certification as a class action and unspecified
compensatory damages plus interest and attorneys' fees.
The Company believes that the claims against the Company and its
officers are without merit, and the Company and its named officers
intend to defend the Company vigorously, including filing a motion
to dismiss the complaint.
No further updates were provided in the Company's SEC report.
Teladoc Health, Inc. provides telehealth services. It offers a
portfolio of services and solutions covering 450 medical
subspecialties, such as flu and upper respiratory infections,
cancer, and congestive heart failure. Teladoc Health, Inc. was
founded in 2002 and is headquartered in Purchase, New York.
TELADOC HEALTH: Unit Continues to Defend Thomas TCPA Class Suit
---------------------------------------------------------------
Teladoc Health, Inc. said in its Form 10-Q Report filed with the
Securities and Exchange Commission on July 30, 2020, for the
quarterly period ended June 30, 2020, that Best Doctors, Inc., a
company subsidiary, continues to defend a purported class action
suit entitled, Thomas v. Best Doctors, Inc.
On May 14, 2018, a purported class action complaint (Thomas v. Best
Doctors, Inc.) was filed in the United States District Court for
the District of Massachusetts against the Company's wholly owned
subsidiary, Best Doctors, Inc.
The complaint alleges that on or about May 16, 2017, Best Doctors
violated the U.S. Telephone Consumer Protection Act (TCPA) by
sending unsolicited facsimiles to plaintiff and certain other
recipients without the recipients’ prior express invitation or
permission.
The lawsuit seeks statutory damages for each violation, subject to
trebling under the TCPA, and injunctive relief.
The Company will vigorously defend the lawsuit and any potential
loss is currently deemed to be immaterial.
No further updates were provided in the Company's SEC report.
Teladoc Health, Inc. provides telehealth services. It offers a
portfolio of services and solutions covering 450 medical
subspecialties, such as flu and upper respiratory infections,
cancer, and congestive heart failure. Teladoc Health, Inc. was
founded in 2002 and is headquartered in Purchase, New York.
TEMPLE UNIVERSITY: Fusca Seeks Tuition Fee Refund
-------------------------------------------------
Christina Fusca, individually and on behalf of all those similarly
situated, Plaintiff, v. Temple University, Defendant, Case No.
20-cv-03434 (E.D. Pa., July 14, 2020), seeks disgorgement of all
amounts wrongfully obtained for tuition, fees, on-campus housing,
and meals, injunctive relief including enjoining Temple University
from retaining the pro-rated, unused monies paid for tuition, fees,
on-campus housing and meals, reasonable attorney's fees, costs and
expenses, prejudgment and post-judgment interest on any amounts
awarded and such other and further relief as may be just and
proper, refunds of all tuition fees paid on a pro-rata basis,
together with other damages resulting from breach of contract and
unjust enrichment.
Temple University operates an institution of higher learning in
Philadelphia, Pennsylvania where Fusca was currently enrolled for
the Spring 2020 as a full-time graduate student. Temple decided to
close campus, constructively evict students, and transition all
classes to an online/remote format as a result of the Novel
Coronavirus Disease. Fusca claims to be deprived the benefits of
in-person instruction, access to campus facilities, student
activities and other benefits and services in exchange for which
they had already paid fees and tuition. Temple refused to provide
reimbursement for the tuition, fees and other costs. [BN]
Plaintiff is represented by:
Gary F. Lynch, Esq.
Edward W. Ciolko, Esq.
James P. McGraw, III, Esq.
CARLSON LYNCH LLP
1133 Penn Avenue, 5th Floor
Pittsburgh, PA 15222
Tel: (412) 322-9243
Fax: (412) 231-0246
Email: glynch@carlsonlynch.com
eciolko@carlsonlynch.com
jmcgraw@carlsonlynch.com
THE ANDERSONS: Dennis Sues Over Wheat Futures Price-fixing
----------------------------------------------------------
Richard Dennis, on behalf of himself and all others similarly
situated, Plaintiff, v. The Andersons, Inc., Defendant, Case No.
20-cv-04090, (N.D. Ill., July 10, 2020), seeks remedies under the
Commodity Exchange Act and the Sherman Act arising from the
manipulation of the prices of wheat futures and options contracts
traded on the Chicago Board of Trade.
The Andersons is a diversified conglomerate that, among other
things, trades futures and physical commodities, including wheat
and other grains. The Andersons buys, sells, handles and stores
physical wheat and transacts in wheat futures and options.
Dennis alleges that Andersons caused artificial prices in wheat
futures and options contracts by registering 2,000 December 2017
soft red winter wheat shipping certificates in order to benefit its
large wheat futures short position. After prices dropped, Andersons
capitalized as the spread began to widen and its resting bids in
wheat futures spreads began to fill at beneficial prices. On June
26, 2020, the CME Group Inc., owner of the Chicago Board of Trade,
issued a Notice of Disciplinary Action and levied a $2 million fine
against The Andersons for its manipulation.
Dennis traded hundreds of wheat futures and options contracts at
artificial prices proximately caused by Andersons' manipulation.
[BN]
Plaintiff is represented by:
Jennifer W. Sprengel, Esq.
Anthony F. Fata, Esq.
Jennifer W. Sprengel, Esq.
Brian P. O'Connell, Esq.
Kaitlin Naughton, Esq.
CAFFERTY CLOBES MERIWETHER & SPRENGEL LLP
150 S. Wacker, Suite 3000
Chicago, IL 60606
Telephone: (312) 782-4880
Email: jsprengel@caffertyclobes.com
afata@caffertyclobes.com
jsprengel@caffertyclobes.com
boconnell@caffertyclobes.com
- and -
Vincent Briganti, Esq.
Raymond Girnys, Esq.
LOWEY DANNENBERG, P.C.
44 South Broadway, Suite 1100
White Plains, NY 10601
Telephone: (914) 997-0500
Email: vbriganti@lowey.com
rgirnys@lowey.com
TRUECAR INC: Final Judgment Entered in Milbeck Securities Suit
--------------------------------------------------------------
Judge Stephen V. Wilson of the U.S. District Court for the Central
District of California has entered final judgment and order of
dismissal in the case, LEON D. MILBECK, on behalf of himself and
all others similarly situated, Plaintiff, v. TRUECAR, INC., et al.,
Defendants, Case No. 2:18-cv-02612-SVW-AGR (C.D. Cal.).
The Court appointed Oklahoma Police Pension and Retirement Fund as
the Lead Plaintiff and Saxena White P.A. as the Lead Counsel in
June 2018 in the case. The Lead Plaintiff filed its Amended
Complaint in August 2018 and the Defendants filed an Answer.
The Court certified the Action in May 2019 to proceed as a class
action on behalf of all persons or entities who purchased or
otherwise acquired (1) the publicly traded common stock of TrueCar,
Inc. from Feb. 16, 2017 through Nov. 6, 2017, or (2) the common
stock of TrueCar pursuant and/or traceable to the secondary
offering of TrueCar common stock conducted on or about April 26,
2017 and were damaged thereby.
The Lead Plaintiff, on behalf of itself and each of the Settlement
Class Members, and Defendants TrueCar, Victor "Chip" Perry, Michael
Guthrie, John Pierantoni, Abhishek Agrawal, Robert Bruce,
Christopher Claus, Steven Dietz, John Krafcik, Erin Lantz, Wesley
Nichols, and Ion Yadigaroglu, entered into a settlement dated Aug.
2, 2019 that provides for a complete dismissal with prejudice of
the claims asserted against Defendant Releasees on the terms and
conditions set forth in the Stipulation, subject to the approval of
the Court.
The Court granted preliminary approval of the Settlement on Oct.
15, 2019.
Accordingly, upon further review, Judge Wilson found the fair,
reasonable and adequate to the Settlement Class in all respects;
and granted final approval of the Settlement.
Separate orders will be entered regarding approval of a plan of
allocation and the motion of the Lead Counsel for an award of
attorneys' fees and reimbursement of Litigation Expenses. Such
orders will in no way affect or delay the finality of the Judgment
and will not affect or delay the Effective Date of the Settlement.
If the Settlement is terminated as provided in the Stipulation or
the Effective Date of the Settlement otherwise fails to occur, the
Judgment will be vacated, rendered null and void and be of no
further force and effect, except as otherwise provided by the
Stipulation, and the Judgment will be without prejudice to the
rights of the Lead Plaintiff, the other Class Members and the
Defendant Releasees, and the Parties will revert to their
respective positions in the Action as of Aug. 2, 2019, as provided
in the Stipulation.
A full-text copy of the District Court's May 26, 2020 Final
Judgment & Order is available at https://is.gd/XS9ClB from
Leagle.com.
VARSITY BRANDS: American Sues Over Monopoly Enterprise Conspiracy
-----------------------------------------------------------------
AMERICAN SPIRIT AND CHEER ESSENTIALS, INC., ROCKSTAR CHAMPIONSHIPS,
LLC, JEFF & CRAIG CHEER, LLC, d/b/a JEFF AND CRAIG CAMPS, and
ASHLEY HAYGOOD, Individually and on Behalf of all Others Similarly
Situated v. VARSITY BRANDS, LLC, BSN SPORTS, LLC, VARSITY SPIRIT
LLC, STANBURY, LLC, HERFF JONES, LLC, BAIN CAPITAL, LP, CHARLESBANK
CAPITAL PARTNERS, LLC,VARSITY BRANDS HOLDING CO., INC., VARSITY
SPIRIT FASHION & SUPPLIES, LLC, U.S. ALL STAR FEDERATION, INC., USA
FEDERATION FOR SPORT CHEERING, d/b/a USA CHEER, VARSITY INTROPIA
TOURS, LLC and JEFF WEBB, Case No. 1:20-cv-03088-SCJ (N.D. Ga.,
July 24, 2020), alleges that the that Defendants conspired
individually and/or collectively to sell commodities and services
at fixed prices within the United States on the condition that the
purchasers would refrain from and/or not use U.S. competitors'
commodities or services.
The Plaintiff contends that the Defendants turned the market into a
loyal captive market through their enterprise of conspiracy to
monopolize. Doing so substantially lessened competition in the flow
of interstate commerce, the Plaintiff argues.
More specifically, the Plaintiff adds, doing so substantially
lessened competition in the U.S. markets for cheer competitions;
recreational and scholastic field and sideline cheer; recreational
and scholastic athletic equipment; scholastic band uniforms;
scholastic graduation regalia; and (cheer camps in violation of 15
U.S.C Section 14. Similarly, doing so tended to create monopolies
in those markets.
American Spirit is an apparel company that designs, manufactures,
and sells competitive and high school uniforms. Rockstar
Championships is an independent competition producer of
cheerleading competitions. Jeff & Craig Cheer is an independent
producer of scholastic and competitive cheer camps.
Plaintiff Ms. Haygood, as the parent of a school child, paid
competition entry fees, competition admission fees, purchased
travel accommodations and insurance, purchased both competitive and
scholastic cheerleading uniforms, paid membership fees to USASF,
and would be obligated to pay for cheerleading camps marketed by
Varsity. She paid an enhanced and inflated purchase price for these
goods, all of which were paid to the Defendants, directly or
indirectly.
Varsity Brands is a Delaware corporation with its principal place
of business in Memphis, Tennessee. Varsity Brands is the parent
company of Varsity Spirit, LLC, BSN Sports, LLC, Herff Jones, LLC,
Varsity Intropia Tours, LLC, and Stanbury, LLC. Varsity controlled,
manufactured, distributed, advertised, and/or sold competition,
junior high school, high school, recreation, and/or college goods
and services, including: athletic and cheerleading uniforms, shoes
and merchandise; team athletic gear; and marching band and color
guard uniforms and shoes.[BN]
The Plaintiffs are represented by:
Robert A Falanga, Esq.
Kobelah S. Bennah, Esq.
LAW OFFICES FALANGA & CHALKER
11200 Atlantis PI #C
Alpharetta, GA 30022
Telephone: (770) 955-0006
Facsimile: (770) 955-2123
E-mail: rfalanga@falangalaw.com
kobelah@falangalaw.com
VITOL INC: Isanpayu Suit Asserts Gas Price Manipulation
-------------------------------------------------------
Saksee Isanpayu, individually and on behalf of all others similarly
situated, Plaintiff, v. Vitol Inc., SK Energy Americas, Inc. and SK
Trading International Co., Ltd., Defendants, Case No. 20-cv-04670,
(N.D. Cal., July 13, 2020), seeks relief under state antitrust and
consumer protection laws including for violations of Section 1 of
the Sherman Act, the Cartwright Act and California's Unfair
Competition Law.
In February 2015, an explosion damaged an oil refinery complex in
Torrance, California thus causing an unexpected undersupply of
refined gasoline. Vitol, SK Energy Americas and SK Trading
International negotiated large contracts to supply gasoline and
gasoline blending components for delivery in California in excess
of more than 10 million gallons.
Saksee Isanpayu purchased fuel at retail in California during the
said period claiming that Vitol and SK manipulated the spot market
price for gasoline for profit. [BN]
Plaintiff is represented by:
Sean Tamura-Sato, Esq.
Lisa P. Mak, Esq.
Claire Choo, Esq.
MINAMI TAMAKI LLP
360 Post Street, 8th Floor
San Francisco, CA 94108
Tel. (415) 788-9000
Fax (415) 398-3887
Email: seant@minamitamaki.com
lmak@minamitamaki.com
cchoo@minamitamaki.com
WHIRLPOOL PROPERTIES: Blinds Can't Access Web Site, Monegro Says
----------------------------------------------------------------
FRANKIE MONEGRO, on behalf of himself and all others similarly
situated v. WHIRLPOOL PROPERTIES, INC., Case No.
1:20-cv-06091-PAE-OTW (S.D.N.Y., Aug. 4, 2020), is brought against
the Defendant for its failure to design, construct, maintain, and
operate its website to be fully accessible to and independently
usable by the Plaintiff and other blind or visually-impaired
people.
The Defendant's denial of full and equal access to its website,
http://www.gladiatorgarageworks.com/,and therefore denial of its
goods and services offered thereby, is a violation of the
Plaintiff's rights under the Americans with Disabilities Act,
according to the complaint. Because the Defendant's website is not
equally accessible to blind and visually impaired consumers, it
violates the ADA.
The Plaintiff is a visually-impaired and legally blind person who
requires screen-reading software to read website content using his
computer. The Plaintiff uses the terms "blind" or
"visually-impaired" to refer to all people with visual impairments
who meet the legal definition of blindness in that they have a
visual acuity with correction of less than or equal to 20 x 200.
Some blind people who meet this definition have limited vision.
Others have no vision.
Based on a 2010 U.S. Census Bureau report, approximately 8.1
million people in the United States are visually impaired,
including 2.0 million who are blind, and according to the American
Foundation for the Blind's 2015 report, approximately 400,000
visually impaired persons live in the State of New York.
The Plaintiff seeks a permanent injunction to cause a change in the
Defendant's corporate policies, practices, and procedures so that
Defendant's website will become and remain accessible to blind and
visually-impaired consumers.
Whirlpool Properties, Inc., operates as a manufacturer and marketer
of home appliances and related products. The Company offers laundry
and cooking appliances, refrigerators and freezers, dishwashers,
and mixers. Whirlpool Properties serves customers worldwide.[BN]
The Plaintiff is represented by:
David P. Force, Esq.
STEIN SAKS, PLLC
285 Passaic Street
Hackensack, NJ 07601
Telephone: (201) 282-6500
Facsimile: (201) 282-6501
E-mail: dforce@steinsakslegal.com
WINDSTREAM HOLDINGS: EarthLink Merger Related Suits Ongoing
-----------------------------------------------------------
Windstream Holdings, Inc. said in its Form 10-Q Report filed with
the Securities and Exchange Commission on July 30, 2020, for the
quarterly period ended June 30, 2020, that the company continues to
defend several purported shareholder class action suits related to
its merger with EarthLink Holdings Corp.
On February 27, 2017, Windstream Holdings completed its merger with
EarthLink Holdings Corp. ("EarthLink"), a leading provider of data,
voice and managed network services to retail and wholesale business
customers and nationwide Internet access and related value-added
services to residential customers.
Windstream Holdings, its current and former directors, and certain
of its executive officers are the subject of shareholder-related
lawsuits arising out of the merger with EarthLink Holdings Corp. in
February 2017.
Two putative shareholders have filed separate purported shareholder
class action complaints in federal court in Arkansas and state
court in Georgia, captioned Murray v. Earthlink Holdings Corp., et.
al., and Yadegarian v. Windstream Holdings, Inc., et. al.,
respectively.
Additionally, two separate shareholder derivative actions were
filed during the fourth quarter of 2018 in Arkansas federal court
on behalf of Windstream Holdings, Inc., styled Cindy Graham v.
Wells, et. al., and Larry Graham v. Thomas, et. al. All of the
complaints contain similar assertions and claims of alleged
securities law violations and breaches of fiduciary duties related
to the disclosures in the joint proxy statement/prospectus
soliciting shareholder approval of the merger, which the plaintiffs
allege were inadequate and misleading.
Suggestions of Bankruptcy and Notices of the Automatic Stay were
filed with regard to the Murray, Yadegarian and Graham cases, but
the Plaintiffs challenged the applicability of the stay with regard
to non-debtor defendants. Windstream filed an adversary proceeding
motion with the Bankruptcy Court regarding this challenge.
At a hearing on Windstream's adversary proceeding motion conducted
on June 17, 2019, the Bankruptcy court agreed to lift the automatic
stay temporarily to allow the federal court presiding over the
Murray case to hear arguments regarding Windstream’s motion to
dismiss because it was procedural in nature.
Oral arguments on the motion to dismiss were held August 22, 2019,
but a ruling has not yet been issued by the federal court.
In the Yadegarian case, Windstream agreed to lift the automatic
stay for the limited purpose of allowing the state court to rule on
pending Motions to Stay or Dismiss filed by Windstream.
Both motions were heard on November 18, 2019, with the state court
granting the Motion to Stay, pending a decision in the Murray
case.
While the plaintiffs in the Murray case filed a proof of claim for
an undetermined monetary amount, neither the plaintiffs in the
Yadegarian nor Graham cases submitted proof of claims.
The company believes that it had valid defenses for each of the
lawsuits, and the company plan to vigorously defend the pursuit of
all matters. While the ultimate resolution of the matters is not
currently predictable, if there is an adverse ruling in any of
these matters, the ruling could constitute a material adverse
outcome on the future consolidated results of income, cash flows,
or financial condition., the company said.
No further updates were provided in the Company's SEC report.
Windstream Holdings, Inc. provides network communications and
technology solutions in the United States. The company was
incorporated in 2013 and is based in Little Rock, Arkansas. On
February 25, 2019, Windstream Holdings, Inc. along with its 202
affiliates, filed a voluntary petition for reorganization under
Chapter 11 in the US Bankruptcy Court for the Southern District of
New York.
WIRECARD AMERICAN: Hagens Berman to File Amended Complaint
----------------------------------------------------------
Hagens Berman, who on May 6, 2019 was appointed Lead Counsel in the
securities class action brought on behalf of investors in Wirecard
American Depository Shares (ADS) before Hon. Fernando M. Olguin,
DelPoggetto v. Wirecard AG et al., 2:19-cv-00986-FMO-SK (C.D.
Cal.), notifies investors in Wirecard ADS purchased in the United
States with tickers WCAGY or WRCDF, that it will be filing an
amended complaint on Aug. 14, 2020, as directed by the court, to
include additional disclosures related to the original and amended
complaints.
The amended complaint will expand the alleged fraudulent period to
end June 24, 2020 or shortly thereafter and name the company's
auditor, Ernst & Young, as an additional defendant. The amendments
will include the recent events, including ex-Wirecard CEO Markus
Braun's reported arrest and the widening criminal probes amid the
disclosed $2.1 billion missing from the company's balance sheet.
Lead counsel may add further parties and amendments.
Hagens Berman urges investors in Wirecard securities traded in the
United States, and persons with knowledge of the alleged fraud or
who could otherwise further assist with the investigation to
contact the firm:
WRCDF@hbsslaw.com
844-916-0895
Lead Counsel's & Lead Plaintiff's Pending Wirecard (WCAGY; WRCDF)
Securities Fraud Class Action:
The pending securities fraud case concerns Defendants' deliberate
use of improper accounting designed to inflate sales and profits.
Throughout the Class Period, Defendants repeatedly affirmed the
effectiveness of Wirecard's internal controls and processes for
financial reporting. In truth, Defendants were fabricating
financial results by, among other things, inflating receivables.
The truth emerged through a series of exposé articles published by
the Financial Times beginning on Jan. 30, 2019, revealing an
elaborate accounting fraud orchestrated at the highest levels of
Wirecard.
On May 6, 2019, the Court appointed an individual Wirecard investor
Lead Plaintiff for the Class and Hagens Berman as Lead Counsel.
On Feb. 14, 2020, Lead Plaintiff filed a first amended class action
complaint.
Since this time, revelations about the full extent of the alleged
accounting fraud continued and became worse. On June 18, 2020,
Wirecard disclosed that its external auditor was unable to confirm
the existence of $2.1 billion in cash balances on trust accounts.
Moreover, Wirecard warned that a failure to provide certified
annual and consolidated financial statements by June 19, 2020 would
allow appx. $2 billion worth of loans to be terminated. The scandal
intensified when it was reported Markus Braun, the CEO who left the
company on June 19, was arrested in Germany, accused of inflating
the company's balance sheet. Altogether, this news has sent the
price of Wirecard securities traded in the United States crashing
by over 80%.
The court has granted Lead Plaintiff leave to file an amended
complaint on Aug. 14, 2020, which will expand the alleged
fraudulent period to cover recent stock drops caused by the
revelation of Wirecard's financial fraud, including the company's
June disclosures, the recent arrest of former CEO Markus Braun and
the apparent reckless audit failures of Ernst & Young (Germany).
"Wirecard has long lied about its finances and almost fooled
investors that information to the contrary was false. We are
focusing our investigation on who knew what and when, including
their accountants," said Hagens Berman partner Reed Kathrein.
For more information about the case visit:
https://www.hbsslaw.com/cases/WRCDF
About Hagens Berman
Hagens Berman -- http://www.hbsslaw.com-- is a national law firm
with nine offices in eight cities around the country and eighty
attorneys. The firm represents investors, whistleblowers, workers
and consumers in complex litigation. [GN]
[*] Expert Disputes Claim Class Action Lawsuits Have Tripled
------------------------------------------------------------
Ben Butler, writing for The Guardian, reports that a claim by the
treasurer of Australia, Josh Frydenberg, that class action lawsuits
have "tripled over recent years" is incorrect, according to new
figures from a leading academic who compiles data on the issue.
Frydenberg made the claim on July 21 in response to questions from
Guardian Australia about the opposition of the corporate regulator
to his decision to water down rules requiring companies to keep the
stock exchange fully informed about their financial affairs. [GN]
[*] Indian Consumers Welcome Introduction of Class Action Suits
---------------------------------------------------------------
IANS reports that as the government notified the Consumer
Protection Act 2019, consumers have cheered the introduction of
class action suits.
A 95 per cent believe that it will make redressal for misleading
advertisement, defective products and deficient services easier,
according to a Local Circles survey.
A 51 per cent said in the last 3 years they could not get
resolution when they found they had a defective product.
With CCPA having the powers to take up cases suo-moto based on
consumer complaints, many issues affecting a group of consumers
could find resolution.
Earlier on July 20, the Ministry of Consumer Affairs notified the
Consumer Protection Act 2019 bringing in a long pending consumer
reform. The act includes the establishment of the Central Consumer
Protection Authority, CCPA which is empowered to conduct
investigations into violation of consumer rights, order recall of
unsafe goods and services as well take suo- moto complaints against
brands where a class of consumers is impacted due to a defective
product or deficient service.
Initiating action as a class comes as an additional mode of relief
for the consumers which can be used along with individual
complaints to address grievances, thereby empowering the consumers
and giving them an option to carry out two parallel proceedings.
Common examples of such complaints are a mobile phone model having
an inherently defective battery, a service billed for but the
delivery defaulted upon or consumers regularly presented with
unsubstantiated and misleading advertisements, and where hundreds
or thousands of consumers are impacted.
In India, on the LocalCircles online community in association with
the Department of Consumer Affairs, hundreds of complaints are
received each month where a large number of consumers are impacted.
Cases include a defunct keyboard in a particular laptop model to a
service provider not honouring warranty repair and from
overcharging by private hospitals to misleading advertisement
leading to severe damages for consumers.
To understand the extent of the issues faced by consumers and areas
where the Class Action reform should focus first, LocalCircles
conducted a survey to get consumer insights. The survey received
more than 48,000 responses from consumers located in 270 districts
across the country.
In the first question, 49 per cent consumers said that they have
had one or more inherently defective products in the last 3 years
while 38 per cent said they had never faced such an issue.
The next question asked consumers in the last 3 years, when they
identified a defective product how did they get the issue resolved.
To this, 41 per cent said they raised the issue with the brand and
they fixed it. 21 per cent said they raised the issue with the
brand and they refused to fix it. 5 per cent said they raised it
with the brand, they refused but the consumer won in consumer
court. 13 per cent said they raised the issue with the brand, they
refused to fix so the consumer created awareness about it on social
media. 4 per cent said they never raised the issue with the brand
as they could not reach them and 8 per cent said they never raised
the issue with the brand and got it fixed locally.
The poll shows that most consumers currently suffer when they have
a defective product in hand, a deficient service received or have
been misled by an advertisement. Other than the lengthy process of
consumer courts, till now there is no easy way to get redressal.
Other service areas where a large number of consumers face issues
regularly are billing for mobile telephone services, DTH services
etc. Consumers were also asked if they believed that a class action
suit mechanism (where a large number of consumers facing the same
issue with a defective product come together) will be instrumental
in getting companies to accept returns of defective products. 95
per cent consumers agreed with it.
For instance, if a particular television model is found to have a
faulty display, basis survey of other consumers owing that same
model, it can be determined if a high majority is facing the same
display issue. Accordingly, the brand can be approached by CCPA to
initiate a product recall and if not done, a Class Action Suit
framework can be utilised to take action against the brand or the
company.
A 96 per cent consumers also believe that a functional class action
suit mechanism should be made applicable in case of a service
contract and it should be made available in this scenario.
In the next question, 93 per cent consumers said they believe that
a functional class action suit mechanism should also be made
applicable in case of a brand engaging in unfair trade practice or
misleading advertisements.
The Consumer Protection Act 2019, under the CCPA, will also have a
dedicated wing to inquire and investigate matters relating to
consumer rights, unfair trade practices and misleading
advertisements. According to the Consumer Protection Act 2019, the
CCPA will have the powers to initiate a class action 'Suo moto'.
It will also have the ability to enforce recall, refund and/or
return of products. With the Consumer Protection Act 2019
introducing the protection of consumers as a class, consumers hope
that the cases of unfair trade practices, misleading ads will
greatly reduce and commitment of brands towards resolving issues of
defective products and service deficiencies will increase.
The success or failure of class action suits under Consumer
Protection Act 2019 will be heavily dependent on how effectively is
the CCPA structured and whether it takes Class Action cases on
priority. With this report, the consumers have clearly identified
the areas of priority as far as Class Action issues go. [GN]
*********
S U B S C R I P T I O N I N F O R M A T I O N
Class Action Reporter is a daily newsletter, co-published by
Bankruptcy Creditors' Service, Inc., Fairless Hills, Pennsylvania,
USA, and Beard Group, Inc., Washington, D.C., USA. Rousel Elaine T.
Fernandez, Joy A. Agravante, Psyche A. Castillon, Julie Anne L.
Toledo, Christopher G. Patalinghug, and Peter A. Chapman, Editors.
Copyright 2020. All rights reserved. ISSN 1525-2272.
This material is copyrighted and any commercial use, resale or
publication in any form (including e-mail forwarding, electronic
re-mailing and photocopying) is strictly prohibited without prior
written permission of the publishers.
Information contained herein is obtained from sources believed to
be reliable, but is not guaranteed.
The CAR subscription rate is $775 for six months delivered via
e-mail. Additional e-mail subscriptions for members of the same
firm for the term of the initial subscription or balance thereof
are $25 each. For subscription information, contact
Peter A. Chapman at 215-945-7000.
*** End of Transmission ***