/raid1/www/Hosts/bankrupt/CAR_Public/201015.mbx
C L A S S A C T I O N R E P O R T E R
Thursday, October 15, 2020, Vol. 22, No. 207
Headlines
ABILENE CHRISTIAN: Faces Hedges ADA Class Suit in S.D. New York
ACCUTRACE INC: Settlement in Lucas Suit Gets Final Approval
AINSWORTH PET: Parks Appeals Dismissal of Suit to 11th Circuit
AIR METHODS CORP: Kiser, McClain Slam Emergency Airlift Charges
ALABAMA: Order to Monitor Prisoners' Mental Health Care Issued
ALIGN TECHNOLOGY: Court Narrows Claims in SEB Securities Suit
ALLIANCE COLLECTION: Class Cert. Proceedings Stayed in Slomanski
ALLIANCEONE RECEIVABLES: Robertson Appeals Decision to 9th Cir.
AMPHENOL CORP: Loses Bid to Bifurcate Discovery in Denney Suit
ANNIE'S INC: Klausner Commences Class Suit in S.D. New York
AQUION INC: Court Denies AWP's Bid to Quash Subpoena in Stella Suit
ARTEX RISK: Ninth Cir. Affirms Arbitration Ruling in Shivkov Suit
ASPEN AMERICAN: Jagow Slams Denied Insurance Coverage
ASPEN SKIING CO: Katt Claims Website Not Blind-Friendly
AT&T MOBILITY: Class of Non-Managerial Female Staff Sought
ATHENE ANNUITY: Gardner Slams Excessive Policy Surrender Charges
AUTO TRANSPORT: Ewing Sues Over Unsolicited Telemarketing Calls
BADGER BROTHERS: Certification of Settlement Class Sought
BANK OF AMERICA: Approval of Settlement with Accountholders Upheld
BENJAMIN FORD: Court Denies Maldonado Class Certification Bid
BIG FISH: Jan. 7 Final Approval Hearing in Thimmegowda Suit Set
BRYAN UNIVERSITY: Hedges Sues in S.D. New York Over ADA Violation
BUKHARA GRILL: De Jesus Seeks to Recover Unpaid Minimum, OT Wages
CALIFORNIA TEACHERS: Ninth Circuit Appeal Filed in Mendez Suit
CAMELBAK PRODUCTS: Court Dismisses Keller Suit With Prejudice
CGI FEDERAL: $350K Tollini FLSA Suit Settlement Gets Final Approval
CHRISO FOOD: Busboys Sue for Denied OT Wages, Missing Pay Stubs
CHURCHILL CAPITAL: Hutchings Hits Polaris Merger Deal
CHURCHILL DOWNS: Jan. 7 Final Approval Hearing in Kater Suit Set
CLAFLIN UNIVERSITY: Faces Hedges ADA Class Suit in S.D. New York
COLUMBIA GAS: Court Consolidates Moles with Parsons
COMMUNITYAMERICA: Court Certifies Three Classes
COMODO GROUP: Seeks 3rd Circuit Review of Ruling in Johnson Suit
CRAIG EHRLICH: Court Denies as Moot Bid for Class Certification
CREDIT BUREAU: Vazquez Files Placeholder Class Certification Bid
CREDIT CONTROL: Fails to Have Counsel Fees Approved in Watson Suit
DIGNITY HEALTH: Van Bebber Seeks to Certify Classes & Subclasses
EQUIFAX INFORMATION: Rivera Seeks to Certify Case as Class Action
ESURANCE INSURANCE: Morrison Appeals Decision to Ninth Circuit
FAIR ISAAC: Garner Suit Asserts Sherman Act Breach
FANSIDED INC: Carusillo Seeks to Certify Class of Site Experts
FIRST FEDERAL: Court Narrows Claims in Kadow Class Suit
FIRST PREMIER: Loses Bid for Partial Summary Judgment in Moss Suit
FIRST SOLAR: Bid for Add'l. Atty.'s Fees in Smilovits Suit Denied
FLAGSHIP CREDIT: Ward Appeals E.D. Pennsylvania Order to 3rd Cir.
GENERAL MOTORS: Golson Not Barred by Berman Ruling to Pursue Case
GENERAL MOTORS: Wins Dismissal of Harris Suit Over Engine Defect
GOLDEN PEANUT: Class Status Sought in Farmers Antitrust Action
GULFPORT ENTERGY: Joint Bid for Conditional Class Status Granted
HANKOOK TIRE: Dionysius Suit Seeks FLSA Collective Status
HAWAII: Final Judgment in Kalima Class Suit Partly Affirmed
HNN ASSOCIATES: Court Grants Class Cert. Bid in Jammeh
HNN ASSOCIATES: Court Grants Motion for Class Certification
HUUUGE INC: Jan. 7 Final Approval Hearing in Wilson Class Suit Set
ICHIRO SUSHI: Ji Li Appeals S.D.N.Y. Judgment to Second Circuit
INTER-STATE OIL: App. Court Upholds Arbitration Ruling in Garner
INTERCEPT PHARMACEUTICALS: Bid to Amend Judgment in Liu Suit Denied
IOWA: Rowe et al. Seek to Certify Class of Registered Nurses
J.C. CHRISTENSEN: Final Approval of Class Settlement Sought
JELLY BELLY: Court Stays Hoffman TCPA Suit Pending Ruling in AAPC
JONES LANG: North Seeks Unpaid Overtime Wages, Reimbursements
JPMORGAN CHASE: Prukala Class Suit Dismissed with Prejudice
KEITH GORSUCH: Court Denies Motion to Certify Class Action
KOCH INDUSTRIES: 401(k) Plan Members Slam Fund Mismanagement
LEXISNEXIS RISK: Court Certifies Class & Subclass in Gaston Suit
LIDDLE & LIDDLE: Perchlak Suit Seeks to Certify FDCPA Class
LIDL US LLC: Duffy Slams Mislabeling on Vanilla-Flavored Ice Cream
LILITH GAMES: Court Authorizes Email Service in Coy Class Suit
LVNV FUNDING LLC: Shaughnessy Disputes False Credit Report
MAGNA LEGAL: Guynn-Neupane Seeks to Certify Class & Subclass
MARION COUNTY, FL: Court Denies Motion to Certify Class
MAYO CLINIC: Kuhr Suit Seeks to Certify Settlement Classes
MDL 2179: Summary Judgment Bid in Oil Spill Suit Partly Granted
MDL 2862: Filing of Second Amended Consolidated Antitrust Suit OK'd
MICHAEL DEMAYO: Court Denies Bid to Strike Class Claims in Hatch
MICHIGAN: Wash. Dist. Court Dismisses Young Prisoner Suit
MONTGOMERY, AL: McCullough et al. Seek to Certify Three Classes
MONTGOMERY, AL: Singleton Seeks Class Certification
MRS BPO: Can't Compel Arbitration in Ioane TCPA/FDCPA Suit
MUTUAL FUND: Emerson Suit Settlement Gets Final Court Approval
NATIONAL FREIGHT: Class of Delivery Drivers in Portillo Certified
NCAA: Freeman Sues Over Effects of Concussion-related Injuries
NCAA: Gill Sues Over Effects of Concussion-related Injuries
NCAA: James Sues Over Effects of Concussion-related Injuries
NESTLE PURINA: Jacquin MMPA Class Suit Remanded to State Court
NEW YORK: H.A. Suit Seeks to Certify Rule 23 Class Action
NORTHROP GRUMMAN: Bafford Appeals C.D. Calif. Ruling to 9th Cir.
NUCO2 LLC: Court Denies Renewed Class Cert. Bid in Townhouse Suit
NUCO2 LLC: Court Denies Renewed Motion for Class Certification
OHIO: $151,000 Legal Fees Awarded in Community Refugee Suit
ORGAIN LLC: Jones Files Suit in Southern District of New York
PVH CORP: Court Dismisses DiCicco Class Suit Without Prejudice
RADIUS GLOBAL: Reyes Appeals S.D. Florida Ruling to 11th Circuit
RBC CAPITAL MARKETS: Coulter Suit to Recover Unpaid Overtime Wages
RELIASTAR LIFE: Advance Trust May File Second Amended Class suit
RON DESANTEZ: Harrison Seeks to Certify Class of Inmates
ROSANN LANDSCAPE: Contreras Suit Moved From New York to Vermont
ROSENBERG & ASSOCIATES: Weisheit D. Maryland Ruling to 4th Cir.
RP ON-SITE: Miller Suit Seeks to Certify Three Classes
SAGINAW COUNTY, MI: Fox Seeks Class Certification
SALDUTTI LLC: Rankin Appeals E.D. Pa. Decision to Third Circuit
SEAWORLD PARKS: Wins Dismissal of Kouball Class Suit
SGS NORTH AMERICA: Tamimi Suit Seeks to Certify Class Action
SIMPSON STRONG-TIE: $85,203 Sanction Awarded in Nguyen Suit
SIMPSON STRONG-TIE: 3 References Struck from Amended Nguyen Suit
SLEEPY'S LLC: Denial of Class Certification in Hargrove Reversed
SOUTHERN SYNERGY: Cornelison Suit to Recover Unpaid Overtime
STITCH FIX: Staff Sues for Denied Breaks, OT Pay, Tips, Refunds
SUNCOKE ENERGY: Wins Dismissal of Consolidated Securities Suit
SUNY ALBANY: Duguid Discrimination Suit Seeks to Certify Class
TAKEDA PHARMACEUTICAL: Appeals Decision in American Sales Suit
TECHSERV CONSULTING: Hartman Seeks Proper Pay Under FLSA
TOWERS WATSON: Dismissal of Fort Myers Class Suit Reversed
TTEC HEALTHCARE: Arbitration in Beattie FLSA Suit Partly Compelled
TULARE COUNTY, CA: Criswell's TRO Bid in Prisoners Suit Partly OK'd
TVI INC: Melead Labor Suit Remanded to Orange County Superior Court
UNITED STATES AUTOMOBILE: Bid to Certify Interlocutory Appeal Nixed
UNITED STATES: Court Narrows Claims in Onosamba-Ohindo Suit
UNITED STATES: Muhammad-Ali Suit v. 9 S.C. Justices Dismissed
UNITED STATES: Seeks Ninth Circuit Review in Scholl Prisoner Suit
VALENTINE & KEBARTAS: Cardenas Seeks to Certify FDCPA Class
VERIZON CONNECT: Collective Status Sought in Garnick et al. Suit
VIVINT INC: App. Court Flips Dismissal of Linehan-Clodfelter Suit
WAL-MART STORES: Appeals Decision in Hamilton Suit to 9th Circuit
WESTSIDE 309: Dismissal of Claims of 74 Plaintiffs in Chang Denied
ZARA USA: Gillett Seeks Conditional Collective Status
*********
ABILENE CHRISTIAN: Faces Hedges ADA Class Suit in S.D. New York
---------------------------------------------------------------
A class action lawsuit has been filed against Abilene Christian
University. The case is styled as Donna Hedges, on behalf of
herself and all other persons similarly situated v. Abilene
Christian University, Case No. 1:20-cv-08439 (S.D.N.Y., Oct. 9,
2020).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Abilene Christian University is a private Christian university in
Abilene, Texas. It was founded in 1906 as Childers Classical
Institute.[BN]
The Plaintiff is represented by:
Michael A. LaBollita, Esq.
GOTTLIEB & ASSOCIATES
150 E. 18 St., Suite PHR
New York, NY 10003
Phone: (212) 228-9795
Email: michael@gottlieb.legal
ACCUTRACE INC: Settlement in Lucas Suit Gets Final Approval
-----------------------------------------------------------
In the case, SATIMA LUCAS, on behalf of herself and others
similarly situated, Plaintiff, v. ACCUTRACE, INC., Defendant, Civil
Action No. 7:18-cv-09059 (JCM) (S.D. N.Y.), Magistrate Judge Judith
C. McCarthy of the U.S. District Court for the Southern District of
New York granted final approval of the proposed class settlement.
Magistrate Judge McCarthy finds that for purposes of settlement,
the action satisfies the applicable prerequisites for class action
treatment under Fed. R. Civ. P. 23(a) and (b)(2). Also, the
Settlement is fair, reasonable and adequate to the members of the
Classes in light of the complexity, expense, and duration of
litigation and the risks involved in establishing liability and
damages, and in maintaining the class action through trial and
appeal.
The Court finally certified the action as a class action for
settlement purposes only against Defendant Accutrace, Inc. on
behalf of the Classes defined as follows:
a. A nationwide class of all consumers residing in the United
States (including all Territories and other political subdivisions
of the United States) who, beginning five years prior to the filing
of the action and continuing through the resolution of the action,
(i) were the subject of any consumer report prepared by Accutrace
which included any non-conviction criminal record information which
antedated the report by more than seven years; (ii) as to whom
Defendant reported a public record or criminal record that had been
expunged, vacated, sealed or dismissed prior to the date of the
report in connection with an application for a residential lease or
tenancy, employment or credit; (iii) as to whom Defendant reported
a public record or criminal record of a juvenile offense in
connection with an application for a residential lease or tenancy,
employment or credit; and (iv) who, within five years prior to the
filing of the action and extending through the resolution of the
case, were the subject of a background report that was used by the
Defendant to take an adverse employment action regarding such
applicant for employment, and for whom the Defendant failed to
provide the applicant a copy of his or her consumer report or a
copy of the FCRA summary of rights at least five business days
before it took such adverse action.
b. A New York class of all consumers residing in the State of
New York who, beginning two years prior to the filing of the action
and continuing through the resolution of the action, were the
subject of any consumer report prepared by Accutrace which included
any record of conviction of a crime which antedated the report by
more than seven years.
The action is dismissed on the merits, with prejudice and without
costs.
Upon consideration of the Class Counsel's application for fees and
expenses, the Judge awarded the Class Counsel the sum of $240,000
as reasonable fees and expenses incurred in representing the Class.
The Defendant will pay that sum to the Class Counsel in accordance
with the terms of the Settlement Agreement.
Upon consideration of the application for an individual settlement
and service award, Class Representative Satima Lucas is awarded the
sum of $10,000 in consideration for her individual claims against
the Defendant and for the valuable service she has performed for
and on behalf of the Class. The Defendant will pay that sum to the
Class Representative in accordance with the terms of the Settlement
Agreement.
A full-text copy of the District Court's June 26, 2020 Order is
available at https://bit.ly/3nPzsSf from Leagle.com.
AINSWORTH PET: Parks Appeals Dismissal of Suit to 11th Circuit
--------------------------------------------------------------
Plaintiff Markeith Parks filed an appeal from the District Court's
Memorandum and Order dated Feb. 20, 2020, and judgment dated Feb.
21, 2020, entered in the lawsuit styled Parks v. Ainsworth Pet
Nutrition, LLC, Case No. 18-cv-6936, in the U.S. District Court for
the Southern District of New York (New York City).
On Feb. 21, 2020 District Judge Ruby J. Krajick entered an order
granting the Defendant's motion to dismiss the amended complaint.
The appellate case is captioned as Markeith Parks, on behalf of
himself and others similarly situated, Plaintiff-Appellant v.
Ainsworth Pet Nutrition, LLC, DBA Rachael Ray Nutrish; and J.M.
Smucker Company, Defendants-Appellees, Case No. 20-1042, in the
United States Court of Appeals for the Second Circuit.
On April 18, 2019, the District Court granted Defendant Ainsworth
Pet Nutrition, LLC's motion to dismiss Plaintiff Markeith Parks'
complaint, with leave to amend. Parks then filed the Amended
Complaint, on behalf of himself and all others similarly situated,
reasserting claims of deceptive business practices in violation of
New York General Business Law, false advertising in violation of
NYGBL section 350, and breach of express warranty.
Ainsworth Pet produces pet nutritional products. The Company offers
meat, fruits, vegetables, and other food products for pets.[BN]
Plaintiff-Appellant Markeith Parks, on behalf of himself and others
similarly situated, is represented by:
Kim E. Richman, Esq.
RICHMAN LAW GROUP
81 Prospect Street
Brooklyn, NY 11201
Telephone: 212 687-8291
Defendants-Appellees Ainsworth Pet Nutrition, LLC, DBA Rachael Ray
Nutrish; and J.M. Smucker Company, are represented by:
Ronald Y. Rothstein, Esq.
WINSTON & STRAWN LLP
35 West Wacker Drive
Chicago, IL 60601
Telephone: 312 558-7464
AIR METHODS CORP: Kiser, McClain Slam Emergency Airlift Charges
---------------------------------------------------------------
Charles Kiser and Christian McClain, individually and on behalf of
all others similarly-situated, Plaintiff, v. Air Methods
Corporation and Rocky Mountain Holdings, LLC, Defendant, Case No.
20-cv-00801 (D. N.M., August 11, 2020), seeks to impose a
constructive trust, where appropriate, on amounts wrongfully
collected from Plaintiff pending resolution of their claims herein,
issuance of appropriate declaratory and injunctive relief, as
requested to declare whether the parties have an enforceable
contract for the payment of Defendants' services not preempted by
the Air Line Deregulation Act of 1978, together with any contract
rights and obligations existing between the parties, reimbursement
of all costs and disbursements, including attorneys' fees, experts'
fees, and other class action related expenses, pre-judgment and
post-judgment interest and granting such further relief under the
Airline Deregulation Act of 1976.
McClain experienced a blackout related to medication and was
transported to a hospital in Silver City, New Mexico via helicopter
transport. He does not recall signing any forms in which he
consented to pay any sum for any services provided by Air Methods.
McClain's insurance paid $26,744.73 for the service and left him
with a balance bill of $38,254.27
Air Methods transported Charles Kiser from Carlsbad Medical Center
in Carlsbad, New Mexico to University Medical Center in Lubbock,
Texas where Kiser was billed $69,999 which included a "base" charge
of $31,668.53 and an additional $38,330.47 for mileage. His
insurance paid $8,518.88, leaving him with a balance bill of
$61,480.12.
Both claim to be charged for air-lift without any voluntary
contractual relationship formed prior to transport and without
knowledge of the charge. [BN]
The Plaintiff is represented by:
David C. Kramer, Esq.
LAW OFFICE OF DAVID C. KRAMER, LLC
P.O. Box 4662
Albuquerque, NM 87196
Telephone: (505) 545-8105
Facsimile: (505) 715-4884
Email: David.c.kramer@swcp.com
- and -
Edward L. White, Esq.
Kerry D. Green, Esq.
EDWARD L. WHITE, PC
829 East 33rd Street
Edmond OK 73013
Tel: (405) 810-8188
Facsimile: (405) 608-0971
Email: ed@edwhitelaw.com
kerry@edwhitelaw.com
ALABAMA: Order to Monitor Prisoners' Mental Health Care Issued
--------------------------------------------------------------
In the case, DWARD BRAGGS, et al., Plaintiffs, v. JEFFERSON S.
DUNN, in his official capacity as Commissioner of the Alabama
Department of Corrections, et al., Defendants, Civil Action No.
2:14cv601-MHT (M.D. Ala.), Judge Myron H. Thompson of the U.S.
District Court for the Middle District of Alabama, Northern
Division, adopted the Defendants' plan to monitor compliance with
the Court's orders to remedy their Eighth Amendment violation over
inadequate mental-health care in its prisons.
Previously, the Court found that the State of Alabama provides
inadequate mental-health care in its prisons in violation of the
Eighth Amendment's prohibition against cruel and unusual
punishment. The issue now before the Court is the development of a
plan to monitor compliance with the Court's orders to remedy that
constitutional violation.
The Plaintiffs in the class-action lawsuit are Alabama Department
of Corrections ("ADOC") inmates who have mental illness and the
Alabama Disabilities Advocacy Program, which represents mentally
ill inmates in Alabama. The Defendants are the ADOC Commissioner
and the ADOC Associate Commissioner of Health Services, who are
both sued in only their official capacities.
In a liability opinion, the Court found that ADOC's mental-health
care was, simply put, horrendously inadequate. It laid out seven
factors contributing to the Eighth Amendment violation, in addition
to the "overarching" problems of understaffing and overcrowding.
After two months of mediation to develop a comprehensive remedial
plan, it became apparent that the remedy was too large and complex
to be addressed all at once. The Court therefore severed the
remedy into the various contributing factors.
Judge Thompson has now issued remedial opinions and orders
regarding, among other things, understaffing, and inpatient
treatment. He has also issued several remedial orders temporarily
adopting the parties' stipulations regarding other contributing
factors. In March 2020, based on the parties' agreement that their
stipulations temporarily satisfy the Prison Litigation Reform Act
("PLRA"), the Court issued an interim injunction extending these
orders until, at the latest, Dec. 30, 2020. The issue of whether
the stipulations satisfy the requirements of the PLRA beyond that
date is set for a hearing in September, and the Court will defer
judgment as to whether the measures are warranted until that
hearing has occurred.
Throughout the process of resolving each remedial issue, the
question of monitoring compliance with the Court's orders has
repeatedly arisen. The issue of monitoring raises important
questions regarding, on the one hand, the duty of courts to avoid
overly intruding into the executive matter of prison
administration, and on the other hand, the duty of courts to ensure
that the constitutional violations they find are effectively
remedied in a timely fashion. In pursuit of the proper balance of
these important interests, the Judge opted to resolve the issue of
monitoring separately from all substantive remedial orders and on a
global scale, rather than as to each individual order.
Judge Thompson's Opinion fully resolves the remedial monitoring
issue. Though the remedies for all seven factors contributing to
the constitutional violation have not yet been reduced to final
orders with PLRA findings, and though there remain some additional
remedial issues for resolution (for example, segregation and
inpatient treatment), the Judge need not wait to issue those orders
prior to resolving the monitoring issue. It is because his Order
is not specific to any particular remedial measures in that it does
not set up the means of measuring compliance; rather, his Order
establishes an overarching monitoring structure and scheme, the
details of which the Court leaves to be filled in by the experts,
as both sides agree is appropriate.
The parties agree that the monitoring scheme has two fundamental
goals: (1) to oversee compliance with the Court's remedial orders
and (2) to build ADOC's capacity to exercise sustainable internal
oversight of mental-health care -- that is, to identify and correct
problems. They also agree on the overarching structure of the
monitoring. Specifically, they agree that the scheme should: (1)
include the EMT; (2) consist of three phases, with the EMT
teaching—and then ultimately handing the reins over to—the IMT;
(3) empower the EMT to determine many of the details of how to
carry out monitoring, including fashioning performance measures and
audit tools; and (4) consist of a number of essential components of
monitoring, including document review, observation, feedback,
consultation, and handoff to ADOC to monitor itself going forward.
Judge Thompson agrees with the Defendants that it is critical for
ADOC to "buy in" to the process of attaining compliance with the
Court's remedial orders. However, it does not require that the
Defendants be given unfettered discretion to drive the monitoring
process—buy-in can be achieved by implementing much of their plan
as proposed, involving ADOC staff in monitoring efforts from the
beginning, and appointing monitors in which all parties have faith.
These priorities are reflected in the monitoring plan.
In examining why each part of the Court's order satisfies the
PLRA's need-narrowness-intrusiveness requirement, the Judge in his
analysis largely focuses on a single inquiry: whether the
monitoring provision is necessary to correct the constitutional
violation found. As he has discussed in prior opinions, the single
inquiry is distilled from the three requirements of the PLRA --
that the relief is (1) "narrowly drawn," (2) "extends no further
than necessary," and (3) "is the least intrusive means necessary to
correct the violation" -- and allows for a more streamlined
analysis. It the ordered relief is necessary to correct the
violation, then -- by definition -- no other form of relief would
be sufficient to correct it. And if no other form of relief is
sufficient to correct the violation, then the ordered relief is --
by definition -- 'narrowly drawn' and the 'least intrusive means
necessary' to correct it; any narrower or less intrusive relief
would not be sufficient. Similarly, if the ordered relief is
necessary, then it extends no further than necessary, because any
part of the relief extending further than what is necessary would
render it unnecessary.
In finding that each of the monitoring provisions satisfies the
need-narrowness-intrusiveness requirement -- both individually and
in concert -- Judge Thompson gave substantial weight to any adverse
impact on public safety or the operation of a criminal justice
system caused by the relief. He finds that there is no such
adverse impact and that, in fact, the court-ordered monitoring
provisions, by helping to improve mental-health care for inmates,
will serve only to enhance public safety and the operation of a
criminal justice system.
It is clear that the Court and the parties share the same goal for
monitoring in the case: that ADOC acquire the tools, resources, and
capacity to provide constitutionally adequate mental-health care to
those in its custody without court supervision. As Judge Thompson
has previously stated, the real success would be that it will no
longer be needed for the Court or any federal court to interject
itself in Alabama's prison system, he looks forward to the day when
not only he's not necessary, but no federal court is necessary.
With the Defendants' own proposal and the parties' agreements
forming the basis of the monitoring scheme, the Order is an
important step in that direction.
Based on the foregoing, Judge Thompsoon adopted the monitoring
scheme as the Order of the Court. He adopted in large part the
Defendants' plan -- substantial portions to which the Plaintiffs
have agreed -- with some alterations. Most significantly, he
adopted the Defendants' overarching proposal that, in light of
their own admission that they lack the capacity to self-monitor,
outside experts will initially monitor compliance and will draw on
their expertise to develop many of the details of the monitoring
plan. Those outside experts will train and eventually hand control
over to an internal monitoring team, building the capacity of the
ADOC to regulate itself. The Judge hopes that the monitoring
scheme will help the ADOC attain timely, meaningful, and
sustainable compliance with the Court's remedial orders on
mental-health care and bring the litigation to an end as soon as is
reasonably possible.
The Court will, over time, issue a series of orders to enforce the
monitoring scheme, beginning with an order for the selection and
appointment of members of the external monitoring team.
A full-text copy of the Court's Sept. 2, 2020 Opinion & Order is
available at https://tinyurl.com/y66l2cn2 from Leagle.com.
ALIGN TECHNOLOGY: Court Narrows Claims in SEB Securities Suit
-------------------------------------------------------------
In the case, SEB INVESTMENT MANAGEMENT AB, et al., Plaintiffs, v.
ALIGN TECHNOLOGY, INC., et al., Defendants, Case No.
18-CV-06720-LHK (N.D. Cal.), Judge Lucy H. Koh of the U.S. District
Court for the Northern District of California, San Jose Division,
granted in part and denied in part the Defendants' motion to
dismiss the Plaintiff's Amended Consolidated Class Action
Complaint.
The case is a putative securities class action against Align; its
President and CEO, Joseph M. Hogan; and its CFO, John F. Morici.
Lead Plaintiff SEB Investment Management AB brings the suit
individually and on behalf of all other persons and entities who
purchased or otherwise acquired the common stock of Align between
May 23, 2018 and Oct. 24, 2018, both dates inclusive.
Align, is a global medical device company engaged in the design,
manufacture, and marketing of Invisalign® clear aligners and
iTero® intraoral scanners and services for orthodontics,
restorative, and aesthetic dentistry. Owing to a number of
patents, Align maintained "dominance" in the industry as a result
of patents it held on its technology and manufacturing processes,
many of which related to the computer-aided design and
manufacturing technology that allowed the Company to develop and
manufacture high-quality clear aligners in large quantities.
However, as Align began to lose its patent protections, analysts
began to acknowledge that Align's virtual monopoly could come to an
end.
The Plaintiff's claims center around those competitive pressures
and the representations that the Defendants made to investors
regarding how competition would impact Align's business.
Specifically, in May 2018, at the Annual Meeting of the American
Association of Orthodontists, Align's competitors announced
products at price-points under Align's, both in the low end of the
market as well as in the "comprehensive case market" for complex
treatments.
As a result, the Plaintiff alleges that, on July 1, 2018, Align
secretly implemented a $200-per-unit discount ("3Q18 Discounting
Promotion") to its comprehensive cases with hopes of recapturing
its lost market share in the comprehensive case market. The
discount applied on top of Align's existing volume-based loyalty
discount, the Invisalign Advantage Program, which Align had
recently modified to be a tiered discounting system based on the
number of Invisalign cases each doctor sold.
The Plaintiff alleges that the Defendants were aware of, but failed
to disclose, the impact that the 3Q18 Discounting Promotion would
have on the company's average sales prices ("ASP"), a key metric
for investors to which Defendants had access throughout the class
period. They further alleges that, between May 23, 2018 and Sept.
5, 2018, the Defendants made six affirmative representations to
investors that were false or misleading because they misrepresented
the truth about Align's susceptibility to competitors in the
comprehensive case market, and Align's efforts to curb competition
by slashing prices through the 3Q18 Discounting Promotion.
On Oct. 24, 2018, the Defendants finally revealed the relevant
truth about the aggressive discounts they had put in place to stem
competition in the comprehensive market, and disclosed that the ASP
for comprehensive products had dropped a full $100 over the prior
quarter, from $1,410 to $1,310. Align's stock price declined
nearly $59 a share by the following day, and the suit followed.
On Nov. 5, 2018, an Align shareholder filed the instant case
captioned Lu v. Align Technology, Inc., et al., N.D. Cal. Case No.
5:18-CV-06720-LHK. Another shareholder filed suit on Dec. 12,
2018, in a case captioned Infuso v. Align Technology, Inc., et al.,
N.D. Cal. Case No. 5:18-CV-07469. On Jan. 2, 2019, the Court
granted an administrative motion to relate the two cases. On March
22, 2019, the Court consolidated the two cases. In the same Order,
the Court appointed Plaintiff SEB Investment Management AB as the
Lead Plaintiff and appointed Kessler Topaz as the lead counsel.
On May 10, 2019, the Plaintiff filed a Consolidated Amended Class
Action Complaint, which it later corrected. On June 24, 2019, the
Defendants filed a motion to dismiss the Consolidated Amended Class
Action Complaint. On Oct. 29, 2019, the Court granted the
Defendants' motion to dismiss with leave to amend.
On Nov. 29, 2019, the Plaintiff filed an Amended Consolidated Class
Action Complaint that eliminated two individual Defendants (Ralph
Pascaud and Emory Wright), shortened the Class Period by about a
month, and narrowed the theory of the case to focus specifically on
six statements made by the Defendants with respect to competition
in the comprehensive case market and the 3Q18 Discounting
Promotion.
On Jan. 17, 2020, the Defendants filed a motion to dismiss. In
support of their motion to dismiss, the Defendants filed a request
for judicial notice and notice of incorporation by reference. The
Plaintiff largely does not object to incorporation by reference or
judicial notice, except as to the Defendants' Exhibit 11. However,
because the Court largely does not rely on any of the Defendants'
exhibits, it denied the Defendants' request for judicial notice,
except where otherwise noted.
The Plaintiff alleges three claims for relief: (1) violation of
Section 10(b) of the Exchange Act and Rule 10b-5 against all the
Defendants (Count One); (2) violation of Section 20(a) of the
Exchange Act against Hogan and Morici (Count Two); and (3)
violation of Section 10(b) and 20A of the Exchange Act and Rule
10b-5 for insider trading against Hogan (Count Three).
As to Count One, Judge Koh finds that in the amended complaint, the
Plaintiff substantially narrows their theory of liability and
identifies six specific statements made by Defendants between May
23, 2018 and Sept. 5, 2018 that the Plaintiff alleges to have been
false or misleading when made. She considers each statement to
determine whether the Plaintiff has stated a claim for violation of
Section 10(b) and Rule 10b-5. Although she finds that Statement 3
is not actionable under the PSLRA Safe Harbor, and Statements 1, 2,
4, and 6 fail to adequately allege falsity, she finds that
Statement 5 adequately states a claim.
As to Count Two, Judge Koh finds that the Defendants' motion to
dismiss fails to argue that the Court should dismiss the
Plaintiff's Section 20(a) claim. Instead, they raise the issue for
the first time on reply in passing in a footnote, which argues that
the Section 20(a) claim fails for failure to plead a predicate
claim. The Judge need not address arguments raised for the first
time in a reply brief because arguments raised for the first time
in reply briefs are waived. Accordingly, to the extent that the
Defendants moved for dismissal of the Plaintiff's Section 20(a)
controller liability claim, that motion is denied.
Finally, as to Count Three, Judge Koh holds that the Plaintiff has
again failed to demonstrate that any of its stock purchases were
contemporaneous with Hogan's purported insider sales on Aug. 14,
2018. Accordingly, she granted the Defendants' motion to dismiss
the Plaintiff's Section 20A claim. Moreover, the Court previously
dismissed the Plaintiff's Section 20A claim because it had failed
to allege contemporaneity. Because the Court already identified
the deficiency in its October 29, 2019 Dismissal Order and
instructed the Plaintiff that failure to cure would result in
dismissal with prejudice, the Jduge finds that leave to amend as to
the statement would be futile. Accordingly, the dismissal of the
Plaintiff's Section 20A claim is with prejudice.
For the foregoing reasons, Judge Koh granted with prejudice the
Defendants' motion to dismiss the Plaintiff's first claim for
violation of Section 10(b) of the Exchange Act and Rule 10b-5
against all the Defendants, as to Statements 1, 2, 3, 4, and 6; and
denied as to Statement 5. She denied the Defendants' motion to
dismiss the Plaintiff's second claim against Hogan and Morici.
Finally, she granted with prejudice the Defendants' motion to
dismiss the Plaintiff's third claim against Hogan.
A full-text copy of the Court's Sept. 9, 2020 Order is available at
https://tinyurl.com/yaoanuzl from Leagle.com.
ALLIANCE COLLECTION: Class Cert. Proceedings Stayed in Slomanski
----------------------------------------------------------------
In the class action lawsuit styled as JOHN SLOMANSKI, ET AL. v.
ALLIANCE COLLECTION AGENCIES, INC., Case No. 2:20-cv-00956-WED
(E.D. Wis.), the Hon. Judge William E. Duffin granted the
Plaintiff's request to stay further proceedings on the motion for
class certification.
On June 25, 2020, the Plaintiff filed a class action complaint. At
the same time, the Plaintiff filed what the court commonly refers
to as a "protective" motion for class certification. The Plaintiff
has moved to certify the class described in the complaint but also
moved the court to stay further proceedings on that motion.
In Damasco v. Clearwire Corp., 662 F.3d 891, 896 (7th Cir. 2011),
the court suggested that class‐action plaintiffs "move to certify
the class at the same time that they file their complaint." "The
pendency of that motion protects a putative class from attempts to
buy off the named plaintiffs." However, because parties are
generally unprepared to proceed with a motion for class
certification at the beginning of a case, the Damasco court
suggested that the parties "ask the district court to delay its
ruling to provide time for additional discovery or investigation."
Moreover, for administrative purposes, it is necessary that the
Clerk terminate the plaintiff's motion for class certification.
However, this motion will be regarded as pending to serve its
protective purpose under Damasco.
Alliance was founded in 1990. The Company's line of business
includes collection and adjustment services on claims and other
insurance related issues.[CC]
ALLIANCEONE RECEIVABLES: Robertson Appeals Decision to 9th Cir.
---------------------------------------------------------------
Plaintiff Shelly Robertson filed an appeal from a court ruling
entered in the lawsuit styled Shelly Robertson v. AllianceOne
Receivables Management, Inc., Case No. 1:19-cv-00749-DAD-SKO (Filed
May 29, 2019), in the U.S. District Court for the Eastern District
of California (Fresno).
The nature of suit is stated as consumer credit.
As previously reported in the Class Action Reporter, the docket of
the case states the nature of suit as Consumer Credit filed
pursuant to the Fair Debt Collection Practices Act.
The appellate case is captioned as SHELLY ROBERTSON, individually
and on behalf of all others similarly situated v. ALLIANCEONE
RECEIVABLES MANAGEMENT, INC., Case No. 20-15336, in the United
States Court of Appeals for the Ninth Circuit.
AllianceOne provides debt collection services and contact center
solutions.[BN]
The Plaintiff-Appellant is represented by:
George Thomas Martin, III, Esq.
MARTIN & BONTRAGER, APC
6464 W. Sunset Blvd., Suite 960
Los Angeles, CA 90028
Telephone: (323) 940-1700
Facsimile: (323) 238-8095
Email: tom@mblawapc.com
The Defendant-Appellee is represented by:
Craig J. Mariam, Esq.
GORDON & REES LLP
633 West Fifth Street
Los Angeles, CA 90071
Telephone: 213 576-5000
AMPHENOL CORP: Loses Bid to Bifurcate Discovery in Denney Suit
--------------------------------------------------------------
In the case, FRANCES DENNEY, ARTHUR TERHUNE, Plaintiffs, v.
AMPHENOL CORP., BORGWARNER, INC., BORGWARNER PDS (PERU), INC., 400
FORSYTHE, LLC, Defendants, Case No. 1:19-cv-04757-JRS-DLP (S.D.
Ind.), Magistrate Judge Doris L. Pryor of the U.S. District Court
for the Southern District of Indiana, Indianapolis Division, denied
the Defendants' Joint Motion to Bifurcate Discovery.
The Plaintiffs initiated the putative class action case against the
Defendants on Dec. 3, 2019. Specifically, the Plaintiffs claim
damages as a result of the Defendants' wrongful emission, release,
discharge, handling, storage, transportation, processing, disposal,
and failure to remediate toxic and hazardous waste that was
generated at two facilities owned or operated by the Defendants in
Franklin, Indiana. Due to service issues, the counsel for the
Defendants did not appear until April 2020 and the initial
pre-trial conference did not take place until June 12, 2020.
The parties submitted a proposed case management plan that
elucidated their conflicting positions on how discovery should
proceed. During the June 12, 2020 initial pre-trial conference,
the Court heard the parties' arguments concerning the course of
discovery and ultimately permitted the Defendants to file the
present motion to bifurcate discovery and established a briefing
schedule. The Plaintiffs filed a response on July 8, 2020, and the
Defendants filed their reply on July 13, 2020. The parties
presented further argument during the Aug. 20, 2020 telephonic
status conference.
The Defendants collectively filed the present Motion to Bifurcate
Discovery in order to prioritize class certification discovery
before moving to merits discovery. In their motion, they maintain
that discovery bifurcation would be expedient and economical, and
that class certification discovery is severable from merits
discovery. The Plaintiffs strongly disagree, arguing that
bifurcation would be neither economical nor expedient, and that
bifurcation would only serve to delay the certification process and
prejudice their ability to support their case.
Based on the information before the Court at this time and the two
sides' proposals, Magistrate Judge Pryor finds that bifurcation of
discovery would not assist the Court in resolving class
certification any more quickly than proceeding through the normal
course of discovery. Thus, the expediency factor weighs in favor
of denying the Defendants' motion.
Next, the parties' disagreement over the scope of each section of
discovery led to 53 pages of contentious briefing. Magistrate
Judge Pryor is not convinced that the parties will be any more
successful in navigating the boundaries between class and merits
discovery moving forward, even if she orders the parties to
undertake such a task, leading to additional judicial resources
wasted on determining which discovery relates to the class or to
the merits. Thus, she finds that the economy factor weighs in
favor of denying the Defendants' motion.
Finally, with the information before the Court at this time, the
Defendants have not adequately demonstrated that class and merits
discovery are not closely enmeshed. Additionally, because the
severability factor involves and informs the economy factor,
Magistrate Judge Pryor concludes that it weighs in favor of denying
the Defendants' motion.
Magistrate Judge Pryor recognizes that the case may involve many
class members with claims that span a time period of almost 60
years -- with that breadth, the case has the potential to become
unwieldy in short order. She intends to actively ensure that the
discovery process runs smoothly and remains efficient; if at any
point, however, she believes that bifurcation may resolve any
deficiencies or be the more appropriate manner of proceeding,
especially in light of the parties' significant disagreements about
the schedule of the case, she will revisit the issue. Until that
time, the parties should proceed with a normal discovery process,
while still prioritizing that discovery necessary to timely and
efficiently resolve class certification consistent with Federal
Rule 23.
For these reasons, Magistrate Judge Pryor denied the Defendants'
Joint Motion to Bifurcate Discovery.
A full-text copy of the Court's Sept. 4, 2020 Order is available at
https://tinyurl.com/y6nj8jys from Leagle.com.
ANNIE'S INC: Klausner Commences Class Suit in S.D. New York
-----------------------------------------------------------
A class action lawsuit has been filed against Annie's, Inc. The
case is styled as Jessica Klausner, individually and on behalf of
all others similarly situated v. Annie's, Inc., Case No.
7:20-cv-08467 (S.D.N.Y., Oct. 9, 2020).
The nature of suit is stated as Other Fraud.
Annie's, Inc., operates as a natural and organic food company. The
Company offers products that include macaroni and cheese, snack
crackers, fruit snacks and graham crackers.[BN]
The Plaintiff is represented by:
Spencer Sheehan, Esq.
SHEEHAN & ASSOCIATES, P.C.
505 Northern Boulevard, Suite 311
Great Neck, NY 11024
Phone: (516) 303-0552
Fax: (516) 234-7800
Email: Spencer@spencersheehan.com
AQUION INC: Court Denies AWP's Bid to Quash Subpoena in Stella Suit
-------------------------------------------------------------------
In the case, JENNIFER LA STELLA, Plaintiff, v. AQUION, INC., d/b/a
RAINSOFT, and HOME DEPOT USA, INC., Defendants, Civil Action No.
19-10082 (FLW) (ZNQ) (D. N.J.), Magistrate Judge Zahid N. Quraishi
of the U.S. District Court for the District of New Jersey denied
non-party Atlantic Water Products Delaware Division, Inc.'s ("AWP")
Motion to Quash the Subpoena.
The Plaintiff commenced the proposed class action against
Defendants Aquion and Home Depot to redress unjust, unfair, and/or
deceptive practices of marketing and selling water treatment
systems to individuals on a municipal or private water system by
in-home water evaluations done by a salesman. According to the
Plaintiff, the Defendants colluded and induced consumers to
purchase expensive Aquion water treatment systems using water tests
designed to detect harmless minerals.
The putative class consists of: All New Jersey persons who
purchased an Aquion RainSoft branded water conditioning system,
drinking water system, or water filtration system from Aquion, Home
Depot, or any of Aquion's authorized dealers of RainSoft branded
products doing business in New Jersey, for the purpose of household
use, following an in-home water precipitation test from March 8,
2013 to the date of class certification.
The Defendants removed the Plaintiff's action to the New Jersey
District Court. Thereafter, the Plaintiff moved to remand the
action to state court. The District Court denied that motion,
explaining the information the Defendants provided at that juncture
gives rise to an over-inclusive damages figure, and, thus, the
Defendants have not proven, by a preponderance of the evidence,
that the amount in controversy exceeds $5 million, although they
may still be able to do so. It ordered limited jurisdictional
discovery and that the Plaintiff could renew her Motion to Remand.
During discovery, AWP's owner, Charles Wunder, produced a sworn
declaration stating AWP sold at least one Rainsoft(R)-brand product
to at least 1,200 customers in the State of New Jersey, and, based
on his knowledge of his team's sales practices, at least half of
those sales presentations included a precipitation test prior to
their purchase.
Pursuant to Federal Rule of Civil Procedure 30(b)(6), the Plaintiff
now seeks to depose AWP. To that end, Plaintiff subpoenaed AWP to
appear for the deposition and to produce all documents concerning
or supporting Wunder's statement that AWP sold at least one
Rainsoft product 1200 customers in New Jersey. AWP now moves to
quash the subpoena and for its attorneys' fees incurred in
connection with filing the Motion as sanctions for the Plaintiff's
improper discovery.
AWP argues the Plaintiff's requested deposition is disproportionate
to the needs of the case. Citing a litany of cases, AWP asserts
the Court routinely accepts corporate representative's declarations
to establish jurisdiction under the Class Action Fairness Act, and
that Wunder's testimony in his declaration clearly establishes that
the $5 million minimum threshold is easily satisfied.
The Plaintiff responds that the information she seeks is targeted
to minimize the burden on AWP and Wunder, and was noticed to take
place via remote conferencing technology to protect against the
transmission of COVID-19. Plaintiff contends Wunder voluntarily
involved himself in these proceedings, and she should be allowed to
test the reliability and competency of Wunder's statements, which
are central to the jurisdictional dispute. Plaintiff asserts that,
while perhaps burdensome, the discovery is not unduly burdensome,
unreasonable, or oppressive.
Jude Quraishi finds the discovery sought is not disproportionate to
the needs of the case. AWP's declaration may be dispositive of the
jurisdictional issue and, consequently, the Judge finds it
reasonable that the Plaintiff would seek more specific information
to verify AWP's owner's statements and documentation supporting his
claims. While the Court commonly accepts declarations as evidence
in deciding jurisdictional disputes, nothing prohibits a party from
seeking more or contradictory information beyond that declaration.
In scheduling limited jurisdictional discovery, the Judge
contemplated the need for depositions.
Furthermore, the Plaintiff's requested discovery is not duplicative
or unduly cumulative, because she seeks information to substantiate
or contradict Wunder's estimations. The Judge agrees with the
Plaintiff that the burden on AWP is not undue. The Plaintiff has
agreed to depose AWP remotely, negating the risk of spreading
severe acute respiratory syndrome coronavirus 2, and the discovery
sought is limited to the jurisdictional issue. Wunder voluntarily
involved AWP in this jurisdictional dispute by providing what may
be the deciding piece of evidence. Under the circumstances, the
Court agrees with the Plaintiff should have the opportunity to
depose AWP.
For the reasons stated, Jude Quraishi denied AWP's Motion.
A full-text copy of the Court's June 26, 2020 Memorandum Opinion &
Order is available at https://bit.ly/2Ivc2kZ from Leagle.com.
ARTEX RISK: Ninth Cir. Affirms Arbitration Ruling in Shivkov Suit
-----------------------------------------------------------------
In the putative class action suit alleging that the captive
insurance companies formed and managed by Artex and Tribeca were
illegal and abusive tax shelters, a three-judge panel of the U.S.
Court of Appeals for the Ninth Circuit affirmed the district
court's order granting the Defendants' motion to compel arbitration
and dismissing the operative complaint without prejudice.
The case is DIMITRI SHIVKOV, individually and as a trustee of the
Phoenix 2010 Revocable Trust; VASSIL ZHIVKOV; KRISTINA TSONEV;
SPECTRA INC.; DVS HOLDINGS LLC; ROBERT C. MILLER; BRENDA MAE
MILLER; BRUCE G. ROBINSON; SARA VAN ALSTYNE ROBINSON; SYMPHONY
HOMES LLC; SYMPHONY DEVELOPMENT CORPORATION; KEITH BUTLER; REBECCA
M. BUTLER; ERIC K. WILKE; JULIE T. WILKE; JOHN LINDER; NINA LINDER;
AFFILION OF COBRE VALLEY LLC; AFFILION OF HUNTSVILLE PLLC; AFFILION
OF TEXAS PLLC; TAYLOR-WILKE HOLDINGS LLC; TRADITIONS EMERGENCY
MEDICINE PA; TREADSTONE EQUITY GROUP LLC; UTA INVESTMENTS LLC;
BOOMERANG WB LLC; AZ STORAGE 1 LLC; AZ STORAGE 2 LLC; BOOMERANG
SONORAN LLC; RV STORAGE LLC; STONE HAVEN LODGE LLC; UTA HOLDINGS
LLC; WILKE MEDICAL DIRECTION PLLC; 5T CAPITAL FUND II LLC; 5T
CAPITAL HOLDINGS LLC; 5T CAPITAL LLC; INGENUITY AUTO LEASING LLC;
INGENUITY AVIATION LLC; INGENUITY EQUITY GROUP II LLC; INGENUITY
EQUITY GROUP LLC; INGENUITY EQUITY GROUP LLC; INGENUITY LEASING
COMPANY II LLC; INGENUITY LEASING COMPANY LLC; INGENUITY MATRIX,
INC.; INGENUITY PROFESSIONAL SERVICES PLLC; BOURNE TEMPE LAND LLC,
on behalf of themselves and all others similarly situated; paul m.
McHALE; CYNTHIA McHALE; KEITH E. PEREIRA, Individually and as a
trustee of The Blaser Family Revocable Trust Dated March 10, 2006;
KIMBERLY BLASER, Individually and as a trustee of The Blaser Family
Revocable Trust Dated March 10, 2006; BRIAN R. TIFFANY; RYAN P.
FRANK; KATHERINE S. FRANK; CATION LLC; FLORIDA CITRUS HOLDINGS LLC;
McHALE CAPITAL MANAGEMENT LLC; PS BAILEY LLC; BLASER MANAGEMENT
LLC; BLUE HORIZON HOLDINGS LLC; BUTLER MEDICAL GROUP, INC.;
DEVOTION HOMES LLC; GLASS HOUSE LLC; MAUI LUXURY RENTALS LLC;
SILVER MEADOW INVESTING LLC; T&G INVESTMENTS LLC; TREADSTONE CORE3
LLC; TW MANAGEMENT LLC; KAMAOLE LUXURY RENTALS LLC; KANNAPALI BEACH
HOLDINGS LLC; OUR RETIREMENT LLC; RESILIANT LLC; NADIM B. BIKHAZI;
KAREN A. KOSTLUK-BIKHAZI; BRADLEY S. BULLARD; CATHLEEN M. BULLARD;
BLAKE G. WELLING; STEPHANIE G. WELLING; BLAKE WELLING MD PC; BRIAN
TIFFANY MD PC; UTAH SPINE CARE LLC; WESTERN STATES MEDICAL LLC;
OGDEN CLINIC PROFESSIONAL CORPORATION; BORSIGHT, INC.,
Plaintiffs-Appellants, v. ARTEX RISK SOLUTIONS, INC.; HOLDINGS LLC,
FKA Tribeca Strategic Advisors LLC; TBS LLC, DBA PRS Insurance;
KARL HUISH; JEREMY HUISH; JIM TEHERO; ARTHUR J. GALLAGHER &
COMPANY; DEBBIE INMAN; EPSILON ACTUARIAL SOLUTIONS LLC; JULIE A.
EKDOM; AMERISK CONSULTING LLC; PROVINCIAL INSURANCE PCC; TRIBECA
STRATEGIC ACCOUNTANTS LLC; TRIBECA STRATEGIC ACCOUNTANTS PLC,
Defendants-Appellees, Case No. 19-16746 (9th Cir.).
The Plaintiffs, some 81 individuals and related business entities,
variously entered into agreements with Defendants Artex and
Tribeca. Pursuant to these Agreements, Artex and Tribeca formed
and managed captive insurance companies that the Plaintiffs owned,
and to which the Plaintiffs paid insurance premiums. As is
relevant in the case, the Agreements contain an Arbitration Clause.
Several Agreements also contain a Termination and Withdrawal
section, which includes a clause concerning the survival of the
terms of that section following termination of the Agreement.
The Plaintiffs claimed the payments as tax-deductible business
expenses without recognizing them as taxable income. Although the
arrangement offered the prospect of tax benefits, that prospect
proved fleeting. The IRS audited the Plaintiffs, issued
delinquency notices, and sought to impose penalties.
After settling with the IRS, the Plaintiffs brought the putative
class action suit against the Defendants. They allege that the
captives were illegal and abusive tax shelters, about which the
Defendants failed to inform or advise the Plaintiffs. The
Plaintiffs' pursuit of the suit, however, faced a roadblock: The
Agreements contain an arbitration clause. The district court
granted the Defendants' motion to compel arbitration and dismissed
the operative First Amened Complaint without prejudice.
The Plaintiffs appeal. They aver that Artex and Tribeca had a
fiduciary duty to point out and explain the Arbitration Clause,
which they failed to do. Thus, they claim, Artex and Tribeca
effectively suppressed its existence in the less than 10-page
Agreements that the Plaintiffs received and signed, and thereby
committed the legal equivalent of fraud. They next argue that the
Arbitration Clause in only some of their Agreements is
unenforceable because it did not survive termination of the
Agreements.
First, the Panel holds that the Agreements are not unenforceable on
the grounds the Plaintiffs raise. Although the Plaintiffs assert
that Artex and Tribeca breached a fiduciary duty to point out and
fully explain an arbitration clause, they identify no state law
authority recognizing such a duty. Addressing an issue of first
impression in the circuit concerning the survival of arbitration
obligations following contract termination, the Panel hold that the
Agreements do not expressly negate the presumption in favor of
post-termination arbitration or clearly imply that the parties did
not intend for their arbitration obligations to survive
termination.
Second, the Panel holds that the Arbitration Clause encompasses all
the Plaintiffs' claims. Third, it joins seven of the Court's
sister circuits in holding that the availability of class
arbitration is a gateway issue that a court must presumptively
decide. The Agreements do not clearly and unmistakably delegate
that issue to the arbitrator. Because the Agreements are silent on
class arbitration, they do not permit class arbitration. Finally,
the Panel holds that all non-signatory the Defendants may compel
arbitration pursuant to the Agreements.
Based on the foregoing, Judge Milan D. Smith, Jr., writing for the
Panel, concludes that the district court correctly granted the
Defendants' motion to compel and ordered arbitration of the
Plaintiffs' claims on an individual basis. He accordingly,
affirmed.
A full-text copy of the Court's Sept. 9, 2020 Opinion is available
at https://tinyurl.com/ybv85daq from Leagle.com.
W. Ralph Canada Jr. (argued), David R. Deary , Jim L. Flegle --
jimf@lfdlaw.com -- Wilson E. Wray, John McKenzie, Donna Lee, and
Tyler M. Simpson, Loewinsohn Flegle Deary Simon LLP, Dallas, Texas;
Garrett W. Woktyns -- gwotkyns@schneiderwallace.com -- and James A.
Bloom, Schneider Wallace Cottrell Konecky Wotkyns, LLP, Scottsdale,
Arizona; for Plaintiffs-Appellants.
Stephen V. D'Amore (argued), Scott P. Glauberman, Michael A.
Skokna, and Reid F. Smith, Winston & Strawn LLP, Chicago, Illinois;
Barbara J. Dawson -- bdawson@swlaw.com -- Joseph G. Adams --
jgadams@swlaw.com -- and Taryn J. Gallup, Snell & Wilmer LLP,
Phoenix, Arizona; for Defendants-Appellees Artex Risk Solutions
Inc., Arthur J. Gallagher & Company, and Debbie Inman.
Karl M. Tilleman (argued) -- karl.tilleman@dentons.com -- and Erin
E. Bradham, Dentons, Phoenix, Arizona; for Defendants-Appellees TSA
Holdings LLC, TBS LLC, Karl Huish, Jeremy Huish, Jim Tehero,
Provincial Insurance PCC, and Tribeca Strategic Accountants LLC.
J. Steven Sparks -- steve.sparks@sandersparks.com -- and Vincent
Miner, Sanders & Parks, Phoenix, Arizona, for Defendants-Appellees
Epsilon Actuarial Solutions LLC and Julie A. Ekdom.
J. Michael Low and Paul Gerding, Jr. --
paul.gerding.jr@kutakrock.com -- Kutak Rock, Scottsdale, Arizona,
for Defendant-Appellee AmeRisk Consulting LLC.
Michael J. Plati and Michael S. Rubin, Dickinson Wright PLLC,
Phoenix, Arizona, for Defendant-Appellee Tribeca Strategic
Accountants PLC.
ASPEN AMERICAN: Jagow Slams Denied Insurance Coverage
-----------------------------------------------------
Kathryn L. Jagow, DDS, individually and on behalf of all others
similarly situated, Plaintiffs, v. Aspen American Insurance
Company, Defendants, Case No. 20-cv-01205 (W.D. Wash., August 10,
2020), seeks injunctive relief, prejudgment and post-judgment
interest at the maximum rate, attorney's fees and costs and such
other relief from breach of contract.
Jagow owns and operates a dental practice located in Mountlake
Terrace, Washington that purchased an all-risk commercial property
insurance policy from Aspen for protection in the event of property
loss and business interruption. But during the COVID-19 pandemic,
it was denied coverage despite the fact that the policy does not
contain an exclusion for pandemic and/or virus-related losses.
[BN]
Plaintiff is represented by:
Amy Williams-Derry, Esq.
Lynn L. Sarko, Esq.
Ian S. Birk, Esq.
Gretchen Freeman Cappio, Esq.
Irene M. Hecht, Esq.
Maureen Falecki, Esq.
Nathan L. Nanfelt, Esq.
KELLER ROHRBACK LLP
1201 Third Avenue, Suite 3200
Seattle, WA 98101
Telephone: (206) 623-1900
Fax: (206) 623-3384
Email: awilliams-derry@kellerrohrback.com
lsarko@kellerrohrback.com
ibirk@kellerrohrback.com
gcappio@kellerrohrback.com
ihecht@kellerrohrback.com
mfalecki@kellerrohrback.com
nnanfelt@kellerrohrback.com
- and -
Alison Chase, Esq.
KELLER ROHRBACK LLP
801 Garden Street, Suite 301
Santa Barbara, CA 93101
Telephone: (805) 456-1496
Fax: (805) 456-1497
Email: achase@kellerrohrback.com
ASPEN SKIING CO: Katt Claims Website Not Blind-Friendly
-------------------------------------------------------
David Katt, an individual person on behalf of himself and all
others similarly situated, Plaintiff, v. Aspen Skiing Company, LLC,
Defendants, Case No. 20-cv-02366, (D. Colo., August 10, 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.
Defendant is a winter resort complex that owns and operates places
of lodging as well as its website, www.aspensnowmass.com, offering
features which should allow all consumers to access the goods and
services offered in connection with its physical locations. Its
resort is located in Snowmass Village, CO. Katt is legally blind
and claims that Defendant's website cannot be accessed by the
visually-impaired. [BN]
Plaintiff is represented by:
Ari Marcus, Esq.
MARCUS & ZELMAN, LLC
1500 Allaire Avenue, Suite 101
Ocean, NJ 07712
Tel: (732) 695-3282
Fax: (732) 298-6256
Email: Ari@MarcusZelman.com
AT&T MOBILITY: Class of Non-Managerial Female Staff Sought
----------------------------------------------------------
In the class action lawsuit captioned as CYNTHIA ALLEN and KRISTINE
WEBB, v. AT&T MOBILITY SERVICES LLC a/k/a AT&T MOBILITY LLC, Case
No. 1:18-cv-03730-WMR (N.D. Ga.), the Plaintiffs ask the Court for
an order:
1. certifying a class for all issues under Fed. R. Civ. P.
23(b)(3) or, in the alternative, 23(c)(4), defined as:
"all non-exempt, non-managerial female employees in AT&T
Mobility corporate owned retail stores nationwide who were
pregnant at any time from April 26, 2017 to the first day
of trial";
2. appointing the Plaintiffs Cynthia Allen and Kristine Webb
as Class Representatives;
3. appoint their counsel to serve as counsel for the class;
and
4. authorizing notice to the class of the action and of their
right to opt-out.
AT&T Mobility LLC provides wireless voice and data communications
services.
A copy of the Plaintiffs' motion for class certification is
available from PacerMonitor.com at https://bit.ly/33LvAs7 at no
extra charge.[CC]
The Plaintiffs are represented by:
Joseph M. Sellers, Esq.
Kalpana Kotagal, Esq.
Harini Srinivasan, Esq.
COHEN MILSTEIN SELLERS & TOLL PLLC
1100 New York Avenue, N.W.
East Tower, Suite 500
Washington, D.C. 20005
Telephone: (202) 408-4600
E-mail: jsellers@cohenmilstein.com
kkotagal@cohenmilstein.com
hsrinivasan@cohenmilstein.com
- and -
Gillian L. Thomas, Esq.
Sean J. Young, Esq.
AMERICAN CIVIL LIBERTIES UNION
Women's Rights Project
125 Broad Street, 18th Floor
New York, NY 10004
Telephone: (212) 549-2500
E-mail: gthomas@aclu.org
syoung@acluga.org
Counsel for AT&T Mobility Services LLC are:
Alex J. Maturi, Esq.
Paul Hastings LLP
71 S. Wacker Drive, Suite 4500
Chicago, IL 60606
Telephone: (312) 499-6000
E-mail: alexmaturi@paulhastings.com
- and -
Kenneth W. Gage, Esq.
Brian M. Hayes, Esq.
Paul Hastings LLP
200 Park Avenue, 30th Floor
New York, NY 10166
Telephone: (212) 318-6000
E-mail: kennethgage@paulhastings.com
brianhayes@paulhastings.com
- and -
Christine Cedar, Esq.
Paul Hastings LLP
2050 M Street NW, 11th Floor
Washington, DC 20036
Telephone: (202) 551-1700
E-mail: christinecedar@paulhastings.com
- and -
Sheldon W. Snipe, Esq.
AVP SENIOR LEGAL COUNSEL
AT&T Services, Inc.
675 West Peachtree Street, NW, Suite 4300
Atlanta, GA 30308
Telephone: (404) 893-7953
E-mail: ss5526@att.com
ATHENE ANNUITY: Gardner Slams Excessive Policy Surrender Charges
----------------------------------------------------------------
Joseph V. Gardner, an individual, on behalf of himself and others
similarly situated, Plaintiff, v. Athene Annuity and Life Company
and Does 1 through 50, inclusive, Defendants, Case No. 20-cv-07115,
(C.D. Cal., August 7, 2020), seeks restitutionary and injunctive
relief, rescission and damages for violations of the California
Business and Professions Code and the California Welfare &
Institutions Code.
Athene issued annuity policy No. 702704 to Gardner on April 5,
2012. Mr. Gardner was 67 years of age at that time. On April 22,
2020, Gardner surrendered his policy in full. Athene imposed a
surrender charge in the form of a "Withdrawal Charge" against the
principal and interest amounts under said policy, thereby reducing
the amount that Gardner received. [BN]
Plaintiff is represented by:
Ingrid M. Evans, Esq.
EVANS LAW FIRM, INC.
3053 Fillmore Street, #236
San Francisco, CA 94123
Telephone: (415) 441-8669
Facsimile: (888) 891-4906
E-mail: ingrid@evanslaw.com
- and -
Andrew S. Friedman, Esq.
Francis J. Balint, Jr., Esq.
BONNETT FAIRBOURN FRIEDMAN & BALINT, PC
2325 E. Camelback Road, Suite 300
Phoenix, AZ 85016
Telephone: (602) 274-1100
Facsimile: (602) 274-1199
Email: afriedman@bffb.com
fbalint@bffb.com
AUTO TRANSPORT: Ewing Sues Over Unsolicited Telemarketing Calls
---------------------------------------------------------------
ANTON EWING v. AUTO TRANSPORT GROUPE, INC. and LUIS MOLINA, Case
No. 3:20-cv-01964-WQH-AGS (S.D. Cal., Oct. 5, 2020), is brought by
the Plaintiff against the Defendants for violations of the
Telephone Consumer Protection Act and California's Invasion of
Privacy Act.
The Plaintiff alleges that the Defendants contacted his cellular
telephone and landline home phones using an automatic telephone
dialing system in an attempt to sell automobile transportation
services without obtaining prior express consent. Further, the
Defendants violated CIPA by illegally recording the telemarketing
calls they made to the Plaintiff without disclosing that such calls
were being recorded.
Defendant Auto Transport Groupe faced a class action suit filed by
Joey Rafaeli, individually and on behalf of all others similarly
situated v. AMERICAN AUTO TRANSPORT, LLC, a Florida Limited
Liability Company, Case No. 18-cv-61748, in the U.S. District Court
for the Southern District of Florida for alleged violation of
TCPA.
Auto Transport Groupe, Inc., provides automobile transportation
services based in Davie, Florida.
Plaintiff Anton Ewing appears in pro per.[BN]
BADGER BROTHERS: Certification of Settlement Class Sought
---------------------------------------------------------
In the class action lawsuit captioned as CONNOR NEECK and ISAIAH
WEST, individually and on behalf of all others similarly situated,
v. BADGER BROTHERS MOVING LLC, Case No. 3:19-cv-00834-wmc (W.D.
Wisc.), the Parties ask the Court for an order certifying a class
for settlement purposes only consisting of:
"all persons who have been or are currently employed by
Badger Brothers Moving LLC as laborers and/or crew leads in
the state of Wisconsin between October 9, 2017 and May 4,
2020."
Badger Brothers provides house moving service.
A copy of the parties' joint stipulation for class certification is
available from PacerMonitor.com at https://bit.ly/35JoIhA at no
extra charge.[CC]
The Plaintiffs are represented by:
David C. Zoeller, Esq.
Caitlin M. Madden, Esq.
Vanessa A. Kuettel, Esq.
HAWKS QUINDEL, S.C.
Post Office Box 2155
Madison, WI 53701-2155
Telephone: (608) 257-0040
Facsimile: (608) 256-0236
E-mail: dzoeller@hq-law.com
cmadden@hq-law.com
vkuettel@hq-law.com
The Defendant is represented by:
Michael J. Modl, Esq.
Troy D. Thompson, Esq.
AXLEY BRYNELSON, LLP
2 East Mifflin Street, Suite 200
Madison, WI 53703
Telephone: (608) 257-5661
E-mail: mmodl@axley.com
tthompson@axley.com
BANK OF AMERICA: Approval of Settlement with Accountholders Upheld
------------------------------------------------------------------
In the cases, JOANNE FARRELL; et al., Plaintiffs-Appellees,
ESTAFANIA OSORIO SANCHEZ, Objector-Appellant, v. BANK OF AMERICA
CORPORATION, N.A., Defendant-Appellee. JOANNE FARRELL; et al.,
Plaintiffs-Appellees, AMY COLLINS, Objector-Appellant, v. BANK OF
AMERICA CORPORATION, N.A., Defendant-Appellee. JOANNE FARRELL; et
al., Plaintiffs-Appellees, v. RACHEL THREATT, Objector-Appellant,
v. BANK OF AMERICA, N.A., Defendant-Appellee, Case Nos. 18-56272,
18-56273, 18-56371 (9th Cir.), the U.S. Court of Appeals for the
Ninth Circuit affirmed the district court's: (1) approval of a
class action settlement between Defendant-Appellee Bank of America
and Plaintiffs-Appellees, Bank of America accountholders; and (2)
$14.5 million fee award to the class counsel.
The Ninth Circuit finds that district court did not err in
approving the settlement over objections to the failure to create
subclasses. Nor did the district court abuse its discretion in
using the percentage-of-recovery method to calculate fees and
refusing to conduct a lodestar crosscheck. The district court
considered the most pertinent factors influencing reasonableness,
and it did not err in finding the fee award reasonable under
Federal Rule of Civil Procedure 23(h). Most significantly, the
district court concluded that the class counsel demonstrated
"tenacity and great skill," achieving a "remarkable" result in a
"hard fought battle" despite an "adverse legal landscape" and the
"substantial risk of non-payment."
The Ninth Circuit agrees with the dissent that the individual cash
distributions were small, but it takes a different view of the
value of the injunctive relief. While it can be difficult to value
nonmonetary relief, the Court has no trouble finding that the value
exceeds the $29.1 million assigned to it by the parties. Even more
valuable than the debt forgiveness is the Defendant-Appellee's
agreement to refrain from assessing the fees challenged in the
lawsuit -- over the five-year moratorium imposed under the
settlement agreement, the Defendant-Appellee will forgo assessing
$1.2 billion in fees. It does not struggle to conclude, as the
district court did, that the counsel "generated benefits" far
"beyond the cash settlement fund."
Applying the abuse of discretion standard, the Court finds that the
district court reasonably determined that the relevant factors
justified a fee award equivalent to 21.1% of the common fund. It
was reasonable not to perform a crosscheck of the lodestar in the
case, given the difficulty of measuring the value of the injunctive
relief.
What is more, the award fell under the 25% benchmark that the Court
has encouraged district courts to use as a yardstick. Even if it
were inclined to question the district court's motive in approving
the settlement and awarding fees, the Court notes that the district
court's prior order denying the Defendant-Appellee's motion to
dismiss is inconsistent with the dissent's suggestion that the
district court streamlined its docket at the expense of faithful
adherence to the law.
In short, neither the settlement nor the fee award raises an
eyebrow, rules the Ninth Circuit. The Court has settled the issue
of whether a lodestar crosscheck is required, and it would not
unsettle its precedent, even if it had the authority to do so, it
added.
A full-text copy of the Court's Sept. 2, 2020 Memorandum is
available at https://tinyurl.com/yxhpw3bg from Leagle.com.
BENJAMIN FORD: Court Denies Maldonado Class Certification Bid
-------------------------------------------------------------
In the class action lawsuit captioned as PABLO F. MALDONADO, v.
BENJAMIN FORD, et al., Case No. 5:19-cv-00421-MTT-CHW (M.D. Ga.),
the Hon. Judge Marc T. Treadwell entered an order:
1. denying the Plaintiff's motion for appointment of counsel;
and
2. denying the Plaintiff's motion for class certification.
United States Magistrate Judge Charles H. Weigle recommends denying
Plaintiff Pablo Maldonado's motion for appointment of counsel and
motion for class certification. "The Plaintiff did not file an
objection, so pursuant to 28 U.S.C. section 636(b)(1), the Court
reviews that portion of the Recommendation for clear error. After
review, the Court accepts and adopts the findings, conclusions, and
recommendations of the Magistrate Judge. That portion of the
Recommendation is adopted and made the Order of the Court," Judge
Treadwell says.
A copy of the Court's Order is available from PacerMonitor.com at
https://bit.ly/3hP43Lz at no extra charge.[CC]
BIG FISH: Jan. 7 Final Approval Hearing in Thimmegowda Suit Set
---------------------------------------------------------------
In the case, MANASA THIMMEGOWDA, individually and on behalf of all
others similarly situated, Plaintiff, v. BIG FISH GAMES, INC., et
al., Defendants, Case No. C19-0199RSL (W.D. Wash.), Judge Robert S.
Lasnik of the U.S. District Court for the Western District of
Washington, Seattle, will hold a Final Approval Hearing on Jan. 7,
2021, at 1:30 p.m., either in person at Courtroom 15106, United
States Courthouse 700 Stewart Street, Seattle, WA 98101, or by
telephone or videoconference.
The Judge may adjourn the Final Approval Hearing and may approve
the proposed Settlement in the case with such modifications as the
Parties may agree to, if appropriate, without further notice to the
Settlement Class. He may decide to hold the Final Approval Hearing
by telephone or video conference without further mailed notice to
the Settlement Class.
If he orders that the Final Approval Hearing be conducted
telephonically or by video conference, that decision will be posted
on the settlement website www.bigfishgamessettlement.com. Any
Settlement Class Member who wishes to appear at the Final Approval
Hearing should consult the Court's docket and/or the settlement
website for any change in date, time, or format of the hearing.
Any Settlement Class Member who or which does not request exclusion
from the Settlement Class may appear at and participate in the
Final Approval Hearing by (a) submitting written objections to the
Settlement Agreement, the proposed plan of allocation, and/or
counsel's fee petition as set forth in the Agreement and (b) filing
a notice of appearance with the Clerk of Court no later than Dec.
10, 2020, or as the Court may otherwise direct. Any Settlement
Class Member who does not enter an appearance in the matter will be
represented at the Final Approval Hearing by the Class Counsel.
The Class Counsel will file and serve the opening papers in support
of the proposed Settlement, class certification, the proposed plan
of allocation, and the Class Counsel's motion for attorney's fees
and expenses no later than Nov. 9, 2020. Reply papers, if any,
will be filed and served no later than seven calendar days prior to
the Settlement Hearing.
A full-text copy of the Court's Sept. 4, 2020 Order is available at
https://tinyurl.com/y6tyqdys from Leagle.com.
BRYAN UNIVERSITY: Hedges Sues in S.D. New York Over ADA Violation
-----------------------------------------------------------------
A class action lawsuit has been filed against Bryan University,
LLC. The case is styled as Donna Hedges, on behalf of herself and
all other persons similarly situated v. Bryan University, LLC, Case
No. 1:20-cv-08441 (S.D.N.Y., Oct. 9, 2020).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Bryan University (BU) is a private for-profit university based in
Tempe, Arizona. It offers programs in the fields of healthcare,
exercise science, and legal.[BN]
The Plaintiff is represented by:
Michael A. LaBollita, Esq.
GOTTLIEB & ASSOCIATES
150 E. 18 St., Suite PHR
New York, NY 10003
Phone: (212) 228-9795
Email: michael@gottlieb.legal
BUKHARA GRILL: De Jesus Seeks to Recover Unpaid Minimum, OT Wages
-----------------------------------------------------------------
Rufino De Jesus, individually and on behalf of others similarly
situated, Plaintiff, v. Bukhara Grill II, Inc., Vijay Rao, Raja
Jhanhee and Vicke Verma, Defendants, Case No. 20-cv-06147 (S.D.
N.Y., August 6, 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 an Indian Restaurant, located
in New York, NY under the name "Bukhara Grill" where De Jesus was
employed as a dishwasher. 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.
Bukhara Grill 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, says the complaint. [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
CALIFORNIA TEACHERS: Ninth Circuit Appeal Filed in Mendez Suit
--------------------------------------------------------------
Plaintiffs Bethany Mendez, et al., filed an appeal from a court
ruling entered in their lawsuit entitled Bethany Mendez, Linda
Leigh-Dick, Audrey Stewart, Scott Carpenter and Angela Williams, on
behalf of themselves and all others similarly situated v.
California Teachers Association, a California corporation, National
Education Association, a nonprofit corporation, Fremont Unified
District Teachers Association, Inc., a nonprofit corporation,
Valley Center-Pauma Teachers Association, Hayward Education
ASSOCIATION-CTA-NEA, a California corporation, Tustin Educators
Association, a nonprofit corporation, Associated Chino Teachers,
Kim Wallace, in her official capacity as Fremont Unified School
District Superintendent, Ron Mccowan, in his official capacity as
Valley Center-Pauma Unified School District, Matt Wayne, in his
official capacity as Hayward Unified School District
Superintendent, Gregory Franklin, in his official capacity as
Tustin Unified School District Superintendent, Norm Enfield, in his
official capacity as Chino Valley Unified School District
Superintendent and Xavier Becerra in his official capacity as
Attorney General of California, Case No. 4:19-cv-01290-YGR, in the
U.S. District Court for the Northern District of California
(Oakland).
As previously reported in the Class Action Reporter, the Plaintiffs
seek compensatory, declaratory and injunctive relief for violations
of the First Amendment rights of freedom of speech and freedom of
association and a refund of all deductions taken pursuant to
California's unjust enrichment law.
Class members claim to have been deducted union dues without their
clear and affirmative consent. They allege that the Unions promote
political positions and fund activities which they no longer wish
to support or never supported.
The Plaintiffs are member of various teachers' unions in
California.
The appellate case is captioned as BETHANY MENDEZ, LINDA
LEIGH-DICK, AUDREY STEWART, SCOTT CARPENTER, and ANGELA WILLIAMS,
an individual, on behalf of themselves and all others similarly
situated v. CALIFORNIA TEACHERS ASSOCIATION; NATIONAL EDUCATION
ASSOCIATION; FREMONT UNIFIED DISTRICT TEACHERS ASSOCIATION; VALLEY
CENTER-PAUMA TEACHERS ASSOCIATION; HAYWARD EDUCATION
ASSOCIATION-CTA-NEA; TUSTIN EDUCATORS ASSOCIATION; ASSOCIATED CHINO
TEACHERS; KIM WALLACE, in her official capacity as Fremont Unified
School District Superintendent; RON MCCOWAN, in his official
capacity as Valley Center-Pauma Unified School District; GREGORY
FRANKLIN, in his official capacity as Tustin Unified School
District Superintendent; NORM ENFIELD, in his official capacity as
Chino Valley Unified School District Superintendent; and XAVIER
BECERRA, in his official capacity as Attorney General of
California, Case No. 20-15394, in the United States Court of
Appeals for the Ninth Circuit.[BN]
The Plaintiffs-Appellants are represented by:
Karin Sweigart, Esq.
FREEDOM FOUNDATION
P.O. Box 552
Olympia, WA 98507
Telephone: 360 956-3482
Defendant-Appellees California Teachers Association; National
Education Association; Fremont Unified District Teachers
Association; Valley Center-Pauma Teachers Association; Hayward
Education Association-CTA-NEA; Tustin Educators Association;
Associated Chino Teachers are represented by:
Scott A. Kronland, Esq.
Matthew John Murray, Esq.
ALTSHULER BERZON LLP
177 Post Street, Suite 300
San Francisco, CA 94108
Personal: 415-421-7151
Defendant-Appellee Kim Wallace, in her official capacity as Fremont
Unified School District Superintendent, is represented by:
Seth Gordon, Esq.
LEONE & ALBERTS
2175 N. California Boulevard, Suite 900
Walnut Creek, CA 94596
- and -
Louis Leone, Esq.
STUBBS & LEONE
2175 N. California Blvd.
Walnut Creek, CA 94596
Defendant-Appellee Ron McCowan, in his official capacity as Valley
Center-Pauma Unified School District, is represented by:
Daniel R. Shinoff, Esq.
Jack M. Sleeth, Jr., Esq.
STUTZ ARTIANO SHINOFF & HOLTZ
2488 Historic Decatur Rd.
San Diego, CA 92106
Defendants-Appellees Gregory Franklin, in his official capacity as
Tustin Unified School District Superintendent; and
Norm Enfield, in his official capacity as Chino Valley Unified
School District Superintendent, are represented by:
Mark Robert Bresee, Esq.
ATKINSON ANDELSON LOYA RUUD ROMO
4275 Executive Square, Suite 700
La Jolla, CA 92037
Telephone: 858 485-9526
Defendant-Appellee Xavier Becerra, in his official capacity as
Attorney General of California, is represented by:
R. Matthew Wise, Esq.
AGCA-OFFICE OF THE CALIFORNIA ATTORNEY GENERAL
1300 I Street, Suite 125
Sacramento, CA 95814
CAMELBAK PRODUCTS: Court Dismisses Keller Suit With Prejudice
-------------------------------------------------------------
Judge Yvonne Gonzalez Rogers of the U.S. District Court for the
Northern District of California dismissed with prejudice the case,
JOHN D. KELLER, Plaintiff, v. CAMELBAK PRODUCTS, LLC, ET AL.,
Defendants, Case No. 4:20-cv-00232-YGR (N.D. Cal.).
The Court issued an order granting the Defendants' motion to
dismiss the Plaintiff's first amended class action complaint. In
the order, the Court stated that the it did not believe that
amendment to the complaint is possible, but that, in light of
Keller's request, leave to amend is granted as long as such
amendment can be made consistent with Rule 11. The Court provided
that to the extent Keller decides to file a second amended
complaint, the same will be filed no later than June 19, 2020. A
failure to do so will result in a sua sponte dismissal with
prejudice effective June 22, 2020. The Plaintiff did not file a
second amended complaint with the Court in the action.
Accordingly, and in light of the Court's prior order granting the
Defendants' motion to dismiss, Judge Rogers dismissed with
prejudice the matter.
A full-text copy of the District Court's June 26, 2020 Order is
available at https://bit.ly/3k1uWh7 from Leagle.com.
CGI FEDERAL: $350K Tollini FLSA Suit Settlement Gets Final Approval
-------------------------------------------------------------------
In the case, FRED TOLLINI, on behalf of himself and others
similarly situated, Plaintiffs, v. CGI FEDERAL INC., a Delaware
Corporation; CGI TECHNOLOGIES AND SOLUTIONS INC., a Delaware
Corporation; and DOES 1 through 50, inclusive, Defendants, Case No.
18-cv-03275-MMC (N.D. Cal.), Judge Maxime M. Chesney of the U.S.
District Court for the Northern District of California, San
Francisco Division, granted the Plaintiff's (i) Unopposed Motion
for Attorneys' Fees and Costs and Class Representative Enhancement
at Final Approval of Class Action Settlement, and (ii) Unopposed
Motion for Final Approval Class and Collective Action Settlement as
set forth in the Stipulation of Settlement of Class Action and
Release and Addendum to Settlement Agreement and Release of
Claims.
On Sept. 4, 2020, the Court heard the Plaintiff's Fees and Costs
Motion, and the Settlement. In accordance with the Order Granting
Plaintiff's Unopposed Motion for Preliminary Approval of Class and
Collective Settlement, Approval of Class Notice and Setting Final
Approval Hearing, the Class Members have been given notice of the
terms of the Settlement and an opportunity to object to the
Settlement, comment on it and exclude themselves from it.
Having considered the Settlement and the papers submitted by the
Parties in support of final approval of the Settlement, Judge
Chesney finds that class certification of the following Class and
Collective, for settlement purposes only, is appropriate under Rule
23(b)(3) of the Federal Rules of Civil Procedure and 29 U.S.C.
Section 216(b): all current and former non-exempt individuals
employed by defendant within the State of California at any time
during the period from April 30, 2014 through May 27, 2019.
Plaintiff Tollini is appointed as the class representative, and the
appointment of Class Counsel, David Yeremian and Roman Shkodnik of
David Yeremian & Associates, Inc, as the Class Counsel, is
confirmed.
According to Judge Chesney, the terms of the Settlement are fair,
reasonable and adequate, and the standards and applicable
requirements for final approval of the class action settlement are
satisfied. Pursuant to the terms of the Settlement, in exchange
for the Settlement Class Members agreeing to release the Released
Claims, the Gross Fund Value the Defendant will be required to pay
under the Settlement is $350,000, which is inclusive of the Class
Counsel's Attorneys' Fees, Litigation Expenses, Claims
Administration Costs, the PAGA Penalty Payment, Settlement Payments
to Settlement Class Members, and the Service Enhancement Payment to
the Class Representative. Accordingly, the Judge finds the
Settlement deserves final approval and ordered the Parties to
consummate the Settlement in accordance with the terms thereof.
The action is dismissed on the merits with prejudice, with each
party bearing his/her/its own costs, except as provided in the
Settlement. By the Final Approval Order, each of the Settlement
Class Members who did not opt out of the Settlement will be deemed
to have fully, and forever released, relinquished, and discharged
all claims released by Sections 18 and 19 of the Settlement, as set
forth in the Settlement and incorporated by reference herein. The
Class Members who requested to opt out are: Cynthia Colvin, Jimmy
Padaoan, and Talia Christine Yage.
Judge Chesney approved ILYM Group, Inc. to administer the
settlement and will be paid claims administration expenses in the
amount of $7,500 from the Gross Fund Value for its services
rendered in administering the settlement, in accordance with the
Settlement.
The PAGA Payment arising under the California Private Attorneys
General Act of $5,000 is approved, with the California Labor and
Workforce Development Agency receiving $3,750 and the remaining
$1,250 being redistributed to the Settlement Class members who did
not opt out. Payment of that amount will be paid from the Gross
Fund Value in accordance with the Settlement Agreement, and there
will be no further recourse for the civil penalties released under
the terms of the Settlement.
Based upon application by the Class Counsel and the Plaintiff, and
his valuable contribution to the litigation, the Court approved the
payment of a Class Representative Enhancement and Service Award in
the amount of $5,000 to the Plaintiff (in addition to any recovery
he may receive as a member of the Settlement Class) in exchange for
all Releases and in recognition of his efforts and the risks he
undertook in prosecuting the Action.
Based upon application by the Class Counsel, the Court also
approved the payment of attorneys' fees to the Class Counsel in the
amount of $87,500, which is 25% of the Gross Fund Value of $350,000
to be paid in the manner set forth in the Settlement Agreement.
The Plaintiff's request for an award of reasonable litigation costs
is also approved. Out of the $16,000 allocated to costs, the Class
Counsel has incurred $12,815.72 in costs through final approval.
The Class Counsel is awarded the amount, and the difference between
that number and the allocated amount will be added back into the
Net Fund Value to be distributed to the Settlement Class Members in
accordance with the Settlement Agreement.
Within 10 days of the Effective date, the Defendant will provide
deposit the full Gross Fund Value into an account established by
the Settlement Administrator. Within 20 days after the Defendant
provides the total amount to be funded, the Claims Administrator
will pay to each Settlement Class Member his or her Individual
Settlement Amount from the Net Fund Value, and make all other
payments as set forth above, in accordance with the Settlement.
No later than 200 days after the mailing of the settlement payment
checks, the settlement administrator will prepare and sign a
declaration attaching as an exhibit all the settlement payment
checks that have been cashed by the Settlement Class Members. The
Class Counsel will file the declaration and exhibit with the Court
within two weeks of receipt as the current record of all consents
by Settlement Class Members to opt into the action and release Fair
Labor Standards Act claims.
After settlement administration and distribution of funds have been
completed, the Parties will file a report with the Court certifying
compliance with the terms of the Settlement and the Order.
A full-text copy of the Court's Sept. 4, 2020 Order is available at
https://tinyurl.com/y5ghvemv from Leagle.com.
DAVID YEREMIAN & ASSOCIATES, INC., David Yeremian --
david@yeremianlaw.com -- Glendale, California, UNITED EMPLOYEES
LAW
GROUP, PC, Walter Haines --whaines@uelglaw.com -- Huntington
Beach,
CA, Attorneys for Plaintiff Fred Tollini, on behalf of himself and
all others similarly situated.
CHRISO FOOD: Busboys Sue for Denied OT Wages, Missing Pay Stubs
---------------------------------------------------------------
Emilio Castro and Santos Vasquez, on behalf of themselves and
others similarly situated, Plaintiff, v. Chriso Food Services Inc.
and Dennis Pavlatos, Defendants, Case No. 20-cv-03550 (E.D. N.Y.,
August 6, 2020), seeks to recover unpaid minimum wage, unpaid
overtime compensation, withheld tips, liquidated damages,
prejudgment interest and attorneys' fees under the Fair Labor
Standards Act and unpaid spread of hours premium and statutory
damages for failure to provide required wage and hour law notices
pursuant to New York Labor Laws and the New York State Wage Theft
Prevention Act.
Defendants run a diner at 3360 Merrick Road Seaford, New York where
Plaintiffs worked as busboys. They claim to have worked through
their meal breaks, denied wage statements, were required to work
5-15 minutes before their scheduled shifts, and regularly worked in
excess of 40 hours per week. [BN]
Plaintiffs are represented by:
Mohammed Gangat, Esq.
LAW OFFICE OF MOHAMMED GANGAT
675 3rd Avenue, Suite 1810
New York, NY
Tel: (718) 669-0714
Email: mgangat@gangatllc.com
CHURCHILL CAPITAL: Hutchings Hits Polaris Merger Deal
-----------------------------------------------------
Gina Hutchings, individually and on behalf of all others similarly
situated, Plaintiff, v. Churchill Capital Corp. III, Michael Klein,
Jeremy Paul Abson, Glenn August, Mike Eck, Bonnie Jonas, Mark
Klein, Malcolm S. Mcdermid and Karen Mills,, Defendants, Case No.
20-cv-06318 (S.D. N.Y., August 11, 2020), seeks to enjoin
defendants and all persons acting in concert with them from
proceeding with, consummating, or closing the merger of Churchill
Capital with Music Merger Sub I, Inc., Music Merger Sub II LLC,
Polaris Parent Corp. and Polaris Investment Holdings, L.P.,
rescinding it and setting it aside or awarding rescissory damages
in the event defendants consummate the merger, costs of this
action, including reasonable allowance for attorneys' and experts'
fees and such other and further relief under the Securities
Exchange Act of 1934.
Under the terms of the merger agreement, Churchill will cease to
exist, forming one publicly traded entity combined with the
investors in Polaris, significantly diluting Churchill investor's
share of Churchill common stock they own.
Polaris Investment and Polaris Parent will receive up to $3.7
billion of new equity or equity-linked capital that will reduce the
firm's debt. The transaction includes $1.3 billion worth of fully
committed common stock at $10 a share from Churchill's stockholders
and $1.3 billion in convertible debt, convertible at $13 per share,
structured as a reverse merger where existing shareholders will own
the majority of the go-forward company.
Hutchings claims that the transaction undervalues Churchill and is
the result of a flawed sales process saying that the Board failed
to create a disinterested committee of independent directors to
maximize public stockholder value.
Churchill is a special purpose acquisition company, an entity that
is formed strictly to raise capital through an initial public
offering for the purpose of acquiring an existing company, and
merging with it to take that entity public.
Polaris is a private company that uses technology-enabled provider
network, negotiation, claim pricing and payment accuracy services
as building blocks for medical and dental payers to customize the
healthcare cost management programs. [BN]
Plaintiff is represented by:
Evan J. Smith, Esq.
BRODSKY & SMITH, LLC
240 Mineola Blvd.
Mineola, NY 11501
Phone: (516) 741-4977
Facsimile: (516) 741-0626
Email: esmith@brodskysmith.com
CHURCHILL DOWNS: Jan. 7 Final Approval Hearing in Kater Suit Set
----------------------------------------------------------------
In the case, CHERYL KATER and SUSIE KELLY, individually and on
behalf of all others similarly situated, Plaintiffs, v. CHURCHILL
DOWNS INCORPORATED and BIG FISH GAMES, INC., Defendants, Case No.
C15-0612RSL (W.D. Wash.), Judge Robert S. Lasnik of the U.S.
District Court for the Western District of Washington, Seattle,
will convene a Final Approval Hearing on Jan. 7, 2021, at 1:30
p.m., either in person at Courtroom 15106, United States Courthouse
700 Stewart Street, Seattle, WA 98101, or by telephone or
videoconference.
Judge Lasnik may adjourn the Final Approval Hearing and may approve
the proposed Settlement in the case with such modifications as the
Parties may agree to, if appropriate, without further notice to the
Settlement Class. He may decide to hold the Final Approval Hearing
by telephone or video conference without further mailed notice to
the Settlement Class.
If he orders that the Final Approval Hearing be conducted
telephonically or by video conference, that decision will be posted
on the settlement website www.bigfishgamessettlement.com. Any
Settlement Class Member who wishes to appear at the Final Approval
Hearing should consult the Court's docket and/or the settlement
website for any change in date, time, or format of the hearing.
Any Settlement Class Member who or which does not request exclusion
from the Settlement Class may appear at and participate in the
Final Approval Hearing by (a) submitting written objections to the
Settlement Agreement, the proposed plan of allocation, and/or
counsel's fee petition as set forth in the Agreement and (b) filing
a notice of appearance with the Clerk of Court no later than Dec.
10, 2020, or as the Court may otherwise direct. Any Settlement
Class Member who does not enter an appearance in the matter will be
represented at the Final Approval Hearing by the Class Counsel.
The Class Counsel will file and serve the opening papers in support
of the proposed Settlement, class certification, the proposed plan
of allocation, and the Class Counsel's motion for attorney's fees
and expenses no later than Nov. 9, 2020. Reply papers, if any,
will be filed and served no later than seven calendar days prior to
the Settlement Hearing.
A full-text copy of the Court's Sept. 4, 2020 Order is available at
https://tinyurl.com/y69dokdj from Leagle.com.
CLAFLIN UNIVERSITY: Faces Hedges ADA Class Suit in S.D. New York
----------------------------------------------------------------
A class action lawsuit has been filed against Claflin University.
The case is styled as Donna Hedges, on behalf of herself and all
other persons similarly situated v. Claflin University, Case No.
1:20-cv-08443 (S.D.N.Y., Oct. 9, 2020).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Claflin University is a private historically black university in
Orangeburg, South Carolina. Founded in 1869 after the American
Civil War by northern missionaries for the education of freedmen
and their children, it offers bachelor's and master's degrees.[BN]
The Plaintiff is represented by:
Michael A. LaBollita, Esq.
GOTTLIEB & ASSOCIATES
150 E. 18 St., Suite PHR
New York, NY 10003
Phone: (212) 228-9795
Email: michael@gottlieb.legal
COLUMBIA GAS: Court Consolidates Moles with Parsons
---------------------------------------------------
In the case, GARY MOLES and VICTORIA G. MOLES, individually, and on
behalf of all others similarly situated in West Virginia,
Plaintiffs, v. COLUMBIA GAS TRANSMISSION, LLC and COMUMBIA PIPELINE
GROUP SERVICES COMPANY, Defendants, Civil Action No. 2:20-cv-00279
(S.D. W. Va.), Judge Irene C. Berger of the U.S. District Court for
the Southern District of West Virginia, Charleston Division,
granted the Plaintiffs' Motion to Consolidate with Related Pending
Civil Action.
The Plaintiffs filed their Class Action Complaint on April 21,
2020. The active pleading is a Second Amended Class Action
Complaint filed on July 23, 2020. The Plaintiffs are surface
and/or mineral owners of property in or around Elkview, Kanawha
County, West Virginia. The Defendants are involved in the
transmission, transportation, and storage of natural gas. Columbia
operates 12 underground gas storage fields in West Virginia. The
named Plaintiffs own either surface or mineral rights to property
within the Hunt Storage Field. The Plaintiffs allege that Columbia
did not legally acquire the right to store or remove gas from their
property.
Columbia and its predecessors obtained a FERC (Federal Energy
Regulatory Commission) certificate for the Hunt Storage Field in
around 1950 and have been storing gas there since approximately
1951. After obtaining a FERC certificate, companies are required
to negotiate use with property owners. Instead, according to the
Plaintiffs, Columbia operates the storage fields without
negotiating just compensation, or even consistently notifying
property owners. The boundaries of the storage fields are not
public, so property owners may not be aware of the usage of their
property. The Plaintiffs further allege that Columbia has been
storing natural gas in its other 11 storage fields in West Virginia
continuously and without interruption since receiving FERC
Certificates for those fields. The unauthorized storage and
removal of natural gas has been ongoing in the twelve storage
fields in West Virginia since the early 1950s.
The Plaintiffs bring the claim on behalf of a purported class,
defined as: All persons or entities who own the surface of real
property in West Virginia or who hold oil and/or gas mineral rights
(fee or leasehold) to real property in West Virginia that is
located within the certificated boundaries of a Columbia gas
storage field in West Virginia, but as to whom Columbia has not
reached agreement regarding compensation for gas storage, has not
acquired gas storage rights by contract, and as to which Columbia
has not exercised the right of eminent domain.
They allege claims for trespass, conversion, unjust enrichment for
use of property for storage, unjust enrichment for obtaining
Plaintiffs' native gas without compensation, inverse condemnation,
declaratory judgment, and a permanent injunction.
The same Plaintiffs' counsel represent another purported class in a
similar suit against the same Defendants, Parsons et. al. v.
Columbia Gas Transmission, LLC, et. al., Civil Action No.
2:19-cv-649. That case, now pending in front of the Hon Dwane L.
Tinsley, U.S. Magistrate Judge, was initiated on Sept. 10, 2019.
The active pleading is the Amended Class Action Complaint filed on
May 19, 2020. The named Plaintiffs therein own property within the
Columbia's Ripley Storage Field. The factual claims are nearly
identical to those in Moles.
The purported Parsons class, identical to the purported Moles
class, is defined as: All persons or entities who own the surface
of real property in West Virginia or who hold oil and/or gas
mineral rights (fee or leasehold) to real property in West Virginia
that is located within the certificated boundaries of a Columbia
gas storage field in West Virginia, but as to whom Columbia has not
reached agreement regarding compensation for gas storage, has not
acquired gas storage rights by contract, and as to which Columbia
has not exercised the right of eminent domain.
The Parsons complaint alleges the same causes of action and
contains the same requests for relief.
The current scheduling order in Parsons, entered on July 1, 2020,
establishes a deadline of Sept. 30, 2020, for the completion of
fact discovery, Nov. 30, 2020, for the final exchange of expert
reports, and March 15, 2021, for the completion of briefing of a
motion for class certification. The scheduling order in Moles
establishes a deposition deadline of May 12, 2021, a final expert
report deadline of April 14, 2021, and a deadline of June 9, 2021,
for filing a motion for class certification, with briefing to be
completed within the standard deadlines thereafter.
The Plaintiffs urge the Court to consolidate the Moles case with
the Parsons case. They note that the proposed classes are
identical, and should class certification be granted, they would be
members of the Parsons class. They argue that the claims, facts,
and law are identical in both cases. They contend that there is no
risk of confusion or prejudice if the cases are consolidated, and a
failure to consolidate could result in inconsistent judgments. The
Plaintiffs further assert that consolidation would reduce the
burden on the parties, witnesses, and the Court, permitting more
efficient and less expensive resolution of both cases. They argue
that similar class actions are particularly well suited for
consolidation.
The Defendants oppose consolidation. They argue that individual
issues predominate because the claims involve different parcels of
real estate, which relate to different gas storage facilities, in
different counties, operating under different Federal Energy
Regulatory Commission (FERC) Certificates, which have been in
operation for differing amounts of time. They cite differences in
each parcel of real estate, differences in each Plaintiff's
ownership rights, as well as Columbia's rights with respect to each
parcel, and emphasize that determination of damages would require
an individualized assessment. The Defendants further argue that
their defenses, including statute of limitations, laches, and
adverse possession, will be individualized to each Plaintiff. They
argue that consolidation would be confusing and prejudicial, and
note that discovery is more advanced in Parsons, creating some risk
of delay.
In reply, the Plaintiffs contend that the Defendants overstate the
individualized issues. They further note that many of the
distinctions cited by the Defendants exist between the named
Plaintiffs already consolidated in Moles and Parsons. They argue
that class actions cases, in particular, can be certified for
liability and then Courts have significant flexibility to address
differences through the use of sub-classes, special masters, and
other measures.
Judge Berger finds that Parsons and Moles present essentially
identical claims, with identical proposed classes asserting
identical causes of action against the same Defendants. The sole
difference between the two cases is location: the named Plaintiffs
in Parsons own property impacted by the Ripley Storage Field, and
the named Plaintiffs in Moles own property impacted by the Hunt
Storage Field in or near Elkview. Both seek to present claims on
behalf of a class of plaintiffs with property in all 12 storage
fields in West Virginia. Given the identity of the issues and the
proposed classes, the Judge finds little risk of confusion or
prejudice. Parsons is somewhat more advanced, and consolidation
may slightly delay its progress. However, because discovery is
likely to overlap significantly, particularly as to class issues,
it is likely that any delay would be minimal. Final resolution of
both cases is likely to be expedited by consolidation.
The Defendants note that although the claims are the same in both
cases, the legal analysis for each claim will be entirely different
for each Plaintiff. As the Plaintiffs note, however, both cases
already have multiple named Plaintiffs for whom the legal
implications of any individual differences will need to be
determined. Should a class be certified, consolidation will permit
far more efficient and consistent resolution. Many of the
distinctions between individual Plaintiffs noted by the Defendants
overlap between the two cases. Making determinations in two
separate cases would create the potential for inconsistent
rulings.
In addition, the two cases present common issues regarding
liability and Columbia's actions. It would place a significant
unnecessary burden on witnesses, the parties, and the Court to
continue with dual discovery, motions practice, and, potentially,
trials and class management procedures. In short, litigating these
actions as two separate purported class action cases would be
extraordinarily burdensome and expensive. Therefore, Judge Berger
finds that consolidation is appropriate.
Wherefore, after thorough review and careful consideration, Judger
Berger granted the Plaintiffs' Motion to Consolidate with Related
Pending Civil Action. She consolidated Moles with Parsons. Civil
Action No. 2:19-cv-649 is designated as the lead case and Moles
will proceed under that case style. Finally, the Judge transferred
Moles to Magistrate Judge Tinsley.
The Clerk is directed to send a certified copy of the Order to
Magistrate Judge Tinsley, to counsel of record, and to any
unrepresented party.
A full-text copy of the Court's Sept. 4, 2020 Memoranum Opinion &
Order is available at https://tinyurl.com/y3z6ux5a from Leagle.com.
COMMUNITYAMERICA: Court Certifies Three Classes
-----------------------------------------------
In the class action lawsuit captioned as LISA HOLT, on behalf of
herself and All others similarly situated, v. COMMUNITYAMERICA
CREDIT UNION, Case No. 4:19-cv-00629-FJG (W.D. Mo.), the Hon. Judge
Fernando J. Gaitan, Jr. entered an order:
1. denying the motion to dismiss for failure to state a
claim;
2. granting the Motion for Preliminary Approval of Class
Action Settlement, Certification of the Classes,
Appointment of Class Counsel, Direction of Notice and
Setting of Date for Final Approval Hearing.
The Court said, "the test is not whether any individual issues
exist, but is simply whether one or more of the central issues in
the case is common to the class." Here, the core issue of
contractual interpretation is a "common, aggregation-enabling
issue" to Class Members who were assessed an overdraft fee,
non-sufficient funds fee, or "Unspecified Transfer" fee by
Defendant. Furthermore, a class action is the superior method of
adjudicating the present claims for all parties as the Defendant's
members need not bring individual actions to obtain relief and the
Defendant can resolve all members' claims through the Settlement.
For these reasons, the predominance and superiority requirements
are met. The Court therefore finds that the requirements for
preliminary approval have been met and conditionally certifies the
Classes for purposes of issuing notice of the Settlement.
The Classes that the Court certified are:
a. The "Authorize Positive Purportedly Settle Negative" Fee
Class:
consisting of those members of the Defendant who were
assessed fees that Defendant charged and did not refund on
signature Point of Sale debit card transactions from
December 19, 2014 to July 1, 2019 where there was a
sufficient available balance at the time the transaction
was authorized, but an insufficient available balance at
the time the transaction was presented to Defendant for
payment and posted to a member's account;
b. The Multiple Non-Sufficient Funds Fee Class
"consisting of those members of Defendant who were
assessed nonsufficient funds fees that were assessed and
not refunded from August 6, 2015 to July 1, 2019 for and
check transactions that were later re-submitted by a
merchant after being rejected for insufficient funds"; and
c. The Unspecified Transfer Fee Class:
"consisting of those members of Defendant who paid
overdraft fees described as an "Unspecified Transfer Fee"
on a member's periodic monthly statement that were
assessed and not refunded from October 23, 2014 through
June 30, 2019."
CommunityAmerica is a credit union headquartered in Lenexa, Kansas,
regulated under the authority of the Missouri Division of Credit
Unions and the National Credit Union Administration of the U.S.
federal government.
A copy of the Court's Order certifying classes is available from
PacerMonitor.com at https://bit.ly/2ZJIyp4 at no extra charge.[CC]
COMODO GROUP: Seeks 3rd Circuit Review of Ruling in Johnson Suit
----------------------------------------------------------------
Comodo Group Inc. filed an appeal from a court ruling entered in
the lawsuit styled Michael Johnson v. Comodo Group Inc., et al.,
Case No. 2-16-cv-04469 (Filed July 22, 2016), in the U.S. District
Court for the District of New Jersey.
As previously reported in the Class Action Reporter, Judge Susan D.
Wigenton of the U.S. District Court for the District of New Jersey
(i) denied in part Comodo's Motion for Summary Judgment pursuant to
Federal Rule of Civil Procedure 56, (ii) denied its Motion to
Exclude Plaintiff's Expert, and (iii) granted Johnson's Motion for
Class Certification pursuant to Rule 23.
Between 2012 and 2016, the Defendant made cold sales calls for its
then affiliate, Comodo CA Ltd., which was in the business of
issuing/selling Secure Sockets Layer ("SSL") Certificates to
website owners. SSL Certificates are encryption keys that enable
website owners to securely transfer data to and from their
customers. Each Certificate contains expiration date information
and often contains the user's (i.e., website operator's) name and
telephone number.
The Defendant used an automated computer program to crawl the
internet to compile a database of SSL Certificates, their
expiration dates, and their users' names and telephone numbers.
When contact information was not immediately available on a
Certificate, the Defendant supplemented the information by scanning
the target website or manually searching the WHOIS Registry, an
online database. Using this process, it formulated sales leads
containing phone numbers for soon-to-expire Certificates. The
Defendant's sales department would then load the leads into a
dialing platform called "VICIdial."
The appellate case is captioned as MICHAEL JOHNSON, on behalf of
himself and all others similarly situated, Plaintiff-Respondent, v.
COMODO GROUP INC., Defendant-Petitioner; COMODO CA INC.,
Defendant-Respondent, and UNITED STATES OF AMERICA,
Intervenor-Respondent, Case No. 20-8021, in the United States Court
of Appeals for the Third Circuit.
Comodo is a cybersecurity company headquartered in Clifton, New
Jersey.[BN]
The Plaintiff-Respondent is represented by:
Sofia Balile, Esq.
LEMBERG LAW
43 Danbury Road, 3rd Floor
Wilton, CT 06897
Telephone: 917-981-6237
Defendant-Petitioner Comodo Group Inc. is represented by:
Jeffrey S. Jacobson, Esq.
FAEGRE DRINKER BIDDLE & REATH
1177 Avenue of the Americas, 41st Floor
New York, NY 10036
Telephone: 212 248-3191
- and -
Lauri A. Mazzuchetti, Esq.
Paul A. Rosenthal, Esq.
KELLEY DRYE & WARREN
One Jefferson Road, 2nd Floor
Parsippany, NJ 07054
Telephone: 973-503-5943
Defendant-Respondent Comodo CA Inc. is represented by:
Charles J. Falletta, Esq.
Jeffrey J. Greenbaum, Esq.
SILLS CUMMIS & GROSS
One Riverfront Plaza, 11th Floor
Newark, NJ 07102
Telephone: 973 643-7000
Intervenor-Respondent United States of America is represented by:
Jonathan Kossak, Esq.
UNITED STATES DEPARTMENT OF JUSTICE
1100 L Street North West, Room 12302
Washington, DC 20005
Telephone: 202 305-0612
CRAIG EHRLICH: Court Denies as Moot Bid for Class Certification
---------------------------------------------------------------
In the class action lawsuit captioned as BHUPENDRA GHANDI and A&Y
FAMILY GROUP INC., v. CRAIG J. EHRLICH, et al., Case No.
1:19-cv-03511-SDG (N.D. Ga.), the Hon. Judge Steven D. Grimberg
entered an order:
1. granting the Defendants' motion to dismiss, motion for
sanctions, and motion to strike;
2. denying as moot the Defendants' motion to disqualify the
Plaintiffs' counsel;
3. denying the Plaintiffs' motions to amend the complaint;
and
4. denying as moot the the Plaintiffs' motion for class
certification of:
"all past and current business and property owners who
have been accused of violations of the Americans with
Disabilities Act (ADA) by Defendants."
The Court said, "The Plaintiffs' motion for class certification is
premature. Under the local rules, a plaintiff normally must move
for class certification within 90 days after the Complaint is
filed. However, if a defendant files a motion to dismiss, "the
plaintiff shall move for a determination under Fed. R. Civ. P.
23(c)(1) within 30 days after all the defendants have filed an
answer to the complaint.” The Defendants have not yet answered
but the Plaintiffs' counsel thought it appropriate
to move for class certification anyway."
The Plaintiffs contend that the Defendants formed a criminal
enterprise by using the ADA to initiate numerous federal cases
based on false allegations of disability, injury, and standing to
collect quick settlements from Georgia property owners. The
Plaintiffs allege that, as of the filing of this action, Ehrlich
and E&S had filed 558 cases in this district, plus additional cases
in other districts.
The Plaintiffs assert that the majority of the property owners in
the Defendants' underlying ADA litigations are small business
owners who are immigrants and cannot afford legal representation.
The Plaintiffs allege that these business owners were pressured by
Ehrlich and Schapiro to settle the cases.
Defendant Craig Ehrlich is a Georgia attorney who owns and operates
Defendant The Law Office of Craig J. Ehrlich, LLC (The Law Office).
Defendant Douglas Schapiro is a Florida attorney who practices with
Ehrlich at Defendant Ehrlich & Schapiro, LLC (E&S). Schapiro also
owns and operates Defendant ADA Consultants of America, LLC
(ADACOA), Florida limited liability company that consults on ADA
issues around the country.
A copy of the Court's Order and Opinion is available from
PacerMonitor.com at https://bit.ly/330gEYd at no extra charge.[CC]
CREDIT BUREAU: Vazquez Files Placeholder Class Certification Bid
----------------------------------------------------------------
In the class action lawsuit styled as Christina Vazquez,
Individually and on Behalf of All Others Similarly Situated, v.
CREDIT BUREAU COLLECTION SERVICES, INC., d/b/a CBCS, Case No.
2:20-cv-01438-NJ (E.D. Wisc.), the Plaintiff filed a "placeholder"
motion for class certification in order to prevent against a
"buy-off" attempt, a tactic class-action defendants sometimes use
to attempt to prevent a case from proceeding to a decision on class
certification by attempting to "moot" the named plaintiff's claims
by tendering the plaintiff individual (but not classwide) relief.
The Plaintiff asks the Court for an order certifying a class,
appoint herself as the class representative, and appoint her
attorneys as class counsel.
In Campbell-Ewald Co. v. Gomez, 136 S. Ct. 663, 672 (2016), the
Supreme Court held "an unaccepted settlement offer or offer of
judgment does not moot a plaintiff's case," and "a would-be class
representative with a live claim of her own must be accorded a fair
opportunity to show that certification is warranted." The Sixth
Circuit applied Campbell-Ewald in an unreported opinion in Family
Health Chiropractic, Inc. v. MD On-Line Sols., Inc., No. 15-3508,
2016 WL 384823, at (6th Cir. Feb. 2, 2016).
In Wilson v. Gordon, F.3d 934, 949-50 (6th Cir. 2016), the Sixth
Circuit held that, even where "[the parties [did] not dispute that
all eleven named plaintiffs' individual claims became moot before
the district court certified the class," the "picking-off"
exception applied and allowed the named plaintiffs with moot
individual claims to pursue class certification, which would
"relate back" to the filing of the complaint, applying Deposit
Guar. Nat'l Bank v. Roper, 445 U.S. 326, 339 (1980). The Sixth
Circuit held this ruling was consistent with Campbell-Ewald, 136 S.
Ct. at 672, which refused to put defendants "in the driver's seat"
on class certification.[CC]
A copy of the Plaintiff's Placeholder motion to certify class is
available from PacerMonitor.com at https://bit.ly/2ZQhnJt at no
extra charge.[CC]
The Plaintiff is represented by:
John D. Blythin, Esq.
Mark A. Eldridge, Esq.
Jesse Fruchter, Esq.
Ben J. Slatky, Esq.
ADEMI & O'REILLY
3620 East Layton Avenue
Cudahy, WI 53110
Telephone: (414) 482-8000
Facsimile: (414) 482-8001
E-mail: jblythin@ademilaw.com
meldridge@ademilaw.com
jfruchter@ademilaw.com
bslatky@ademilaw.com
CREDIT CONTROL: Fails to Have Counsel Fees Approved in Watson Suit
------------------------------------------------------------------
In the case, SHANEQUA WATSON, Plaintiff, v. CREDIT CONTROL, LLC,
Defendant, Case No. 4:19CV137 HEA (E.D. Mo.), Judge Henry Edward
Autrey of the U.S. District Court for the Eastern District of
Missouri, Eastern Division, denied the Defendant's Motion for
Attorney's Fees and Costs.
The Plaintiff filed the putative class action pursuant to the Fair
Debt Collection Practices Act ("FDCPA"). The Plaintiff alleged
that she incurred a financial obligation to World Financial Network
National. The Defendant began attempting to collect on the debt
allegedly owed by the Plaintiff. The Plaintiff asserted that the
Defendants violated the FDCPA by sending her a collection letter on
Feb. 14, 2018 that was misleading, confusing, deceptive, and unfair
as it misrepresented the nature, character, and/or legal status of
the alleged debt.
In relevant part, the collection letter indicated that the
Plaintiff owed an outstanding balance and listed various options to
pay off the debt. The collection letter also stated that the law
limits how long she can be sued on the debt. Because of the age of
her debt which was originated by World Financial Network National
Bank, LVNV Funding, LLC will not sue you for it, and LVNV will not
report it to any credit reporting agency.
The Defendant sought to take the Plaintiff's deposition in the
district. The Plaintiff is a resident of Michigan. The counsel
for the Plaintiff sought to have the deposition taken in Michigan
either in person or remotely because the Plaintiff had childcare
issues. The Defendant would not agree. The Plaintiff sought to
appear remotely at the ADR conference remotely. The Defendant
would not agree. The Plaintiff sought to transfer the case to
Michigan. The Missouri Court denied the motion to transfer. The
Plaintiff sought reconsideration of the Order denying transfer or
for a protective order allowing her to attend the mediation by
video conference.
Prior to the Plaintiff's Motions, the Defendant had filed a Motion
to Dismiss. The Motion was granted on March 6, 2020. The
Defendant now moves attorney's fees pursuant to Section
1692k(a)(3), and the Court's inherent authority to grant
sanctions.
The Defendant asserts that the Plaintiff never intended on being
present for trial, and queries why a New Jersey attorney would file
a suit for a Michigan resident in the district if not in bad faith
or for harassment.
Judge Autrey is satisfied that neither the Plaintiff nor her
attorney have misrepresented anything to the Court. Likewise,
nothing demonstrates bad faith or harassment by the Plaintiff or
the counsel. The Judge is completely satisfied that the Plaintiff
intended to pursue her case in the district but was faced with
complications that precluded her from attending the deposition and
mediation in person. At best, the Defendant could have filed a
motion to dismiss for failure to prosecute because of the
Plaintiff's non-attendance. The Defendant was able to achieve a
better result with the motion to dismiss.
While the Court recognizes the frustration the Defendant and its
counsel may have experienced throughout the course of the
proceeding, there is no evidence that either the Plaintiff or her
attorney did anything untoward. On the record before it, Judge
Autrey concludes that an award of attorney's fees and costs is not
justified. Although ultimately the Plaintiff's case was dismissed,
there is no evidence that her claim was filed in bad faith for the
purpose of harassing the Defendant. The Defendants do not offer
any direct evidence of bad faith or purpose to harass by the
Plaintiff.
Accordingly, Judge Autrey denied the Defendant's Motion for
Attorney's Fees and Costs.
A full-text copy of the District Court's June 26, 2020 Opinion,
Memorandum & Order is available at https://bit.ly/2GPuc0p from
Leagle.com.
DIGNITY HEALTH: Van Bebber Seeks to Certify Classes & Subclasses
----------------------------------------------------------------
In the class action lawsuit captioned as ROBERT VAN BEBBER, on
behalf of himself and all others similarly situated and the general
public, v. DIGNITY HEALTH, a California Corporation, dba MERCY
MEDICAL CENTER-MERCED, and DOES 1 to 100, inclusive, Case No. e
1:19-cv-00264-DAD-EPG (E.D. Cal.), the Plaintiff will move Court on
January 29, 2021 for an order:
1. certifying the following classes and subclassses:
Regular Rate/Overtime Class:
"all non-exempt hourly employees of the Defendant who
worked at the Mercy Medical Center Merced facility at
least one day of more than eight hours in a day or more
than 40 hours in a week from July 13, 2013 through the
date of class certification order and who worked overtime
and earned additional pay during the overtime week, and
were not paid premium overtime and/or double time at the
employee's regular rate of pay";
Rounding Class:
"all non-exempt hourly employees of the Defendant who
worked at least one day at the Mercy Medical Center Merced
facility from July 13, 2013 to the date of the class
certification order and who were paid pursuant to the
Defendant's rounding policy and practice";
Rounding Clinical Sub-Class:
"all non-exempt hourly clinical employees of the
Defendant who worked at least one day at the Mercy
Medical Center Merced facility from July 13, 2013 to
the date of the class certification order and who were
paid pursuant to the Defendant's rounding policy and
practice";
On Call/Standby Class:
"all non-exempt hourly patient care employees of the
Defendant who worked at least one day at the Mercy
Medical Center Merced facility and worked at least one
standby shift from January 14, 2015 to the date of the
class certification order";
Second Meal Break Class:
all non-exempt hourly employees of the Defendant who
worked at least one day at the Mercy Medical Center
Merced facility from July 13, 2013 through the date of
class certification order who were not provided legally-
compliant second meal period breaks when working more
than 10 hour shift";
Meal Period Waiver Sub-class:
"all hourly non-exempt employees of the Defendant who
worked at Mercy Medical Center Merced facility at
least one day from July 13, 2013 through date of class
certification order, who signed a written meal period
waiver";
Meal Break Sub-Class:
"all non-exempt hourly clinical employees of the
Defendant who worked at least one day at the Mercy
Medical Center Merced facility from July 13, 2013
through the date of class certification order who were
not provided legally-compliant second meal period
breaks";
Meal Period Regular Rate Sub- Class
"all California employees who worked for the Defendant
from July 13, 2013 through the date of class
certification order who were paid a missed meal period
payment in a week that the employee also received a
non-discretionary bonus or other type of pay along with
their regular wages";
Pay Stub Class
"all non-exempt hourly employees of the Defendant who
worked at least one day at the Mercy Medical Center Merced
facility from July 13, 2016 through the date of class
certification order who were provided a paystub (a.k.a.
wage statement) from Defendant".
Rest Break Class:
all non-exempt hourly clinical employees of the Defendant
who worked at least one day at Mercy Medical Center Merced
facility at any time from January 14, 2015 through the
date of class certification, who were not provided with
10-minute rest periods for every 4 hours of work or major
fraction thereof"
Rest Period Regular Rate Sub-Class
"all California employees who worked for the Defendant
from July 13, 2013 through the date of class
certification order who were paid a missed rest period
payment in a week that the employee also received a
non-discretionary bonus or other type of pay along with
their regular wages";
Waiting Time Penalty Class
"all California based non-exempt hourly employees of the
Defendant who worked for 23 at any time from January 14,
2016 through the date of class certification, who are no
longer employed by the Defendant and were not paid all
their earned wages";
2. appointing Robert Van Bebber, Martha Ochoa, and Rachel
Clover as class representative; and
3. appointing Joseph Antonelli and Janelle Carney of Law
Office of Joseph Antonelli; Robert L. Starr, Manny Starr
and Adam M. Rose, of Frontier Law Center as class counsel.
Dignity Health is a California-based not-for-profit public-benefit
corporation that operates hospitals and ancillary care facilities
in three states.
A copy of the Notice of Plaintiffs' Motion for Class Certification
is available from PacerMonitor.com at https://bit.ly/2RuqoDx at no
extra charge.[CC]
Attorneys for the Plaintiffs and all others similarly situated and
the general public, are:
Joseph Antonelli, Esq.
Janelle Carney, Esq.
LAW OFFICE OF JOSEPH ANTONELLI
14758 Pipeline Ave., Suite E, 2nd Floor
Chino Hills, CA 91709
Telephone: (909) 393-0223
Facsimile: (909) 393-0471
E-mail: JAntonelli@antonellilaw.com
JCarney@antonellilaw.com
- and -
Robert L. Starr, Esq.
Adam M. Rose, Esq.
Theodore R. Tang, Esq.
FRONTIER LAW CENTER
23901 Calabasas Rd., No. 2074
Calabasas, CA 91302
Telephone: (818) 914-3433
Facsimile: (818) 914-3433
E-mail: Robert@frontierlawcenter.com
adam@frontierlawcenter.com
theodore@frontierlawcenter.com
EQUIFAX INFORMATION: Rivera Seeks to Certify Case as Class Action
-----------------------------------------------------------------
In class action lawsuit captioned as FRANCISCO JOEL RIVERA, on
behalf of himself and all others similarly situated, v. EQUIFAX
INFORMATION SERVICES LLC, Case No. 1:18-cv-04639-AT-CCB (N.D. Ga.),
the Plaintiff asks the Court for an order certifying this action as
a class action.
Equifax provides data solutions. The Company offers financial,
consumer and commercial data, and analytical solutions.
A copy of the Plaintiff's motion for class certification is
available from PacerMonitor.com at https://bit.ly/35H5PM7 at no
extra charge.[CC]
The Plaintiff is represented by:
James A. Francis, Esq.
John Soumilas, Esq.
Jordan M. Sartell, Esq.
FRANCIS MAILMAN SOUMILAS , P.C.
1600 Market Street, Suite 2510
Philadelphia, PA 19103
Telephone: 215-735-8600
E-mail: jfrancis@consumerlawfirm.com
jsoumilas@consumerlawfirm.com
jsartell@consumerlawfirm.com
- and -
James M. Feagle, Esq.
SKAAR & FEAGLE, LLP
2374 Main Street, Suite B
Tucker, GA 30084
Telephone: 404-373-1970
E-mail: jimfeagle@skaarandfeagle.com
- and -
Robert S. Sola, Esq.
ROBERT S. SOLA, P.C.
1500 SW First Avenue, Suite 800
Portland, OR 97201
Telephone: 503-295-6880
E-mail: rssola@msn.com
- and -
Micah S. Adkins, Esq.
THE ADKINS FIRM, P.C.
Mooreland Manor
7100 Execute Center Dr., Suite 110
Brentwood, TN 37027
Telephone: 615-370-9659
E-mail: micahadkins@itsyourcreditreport.com
ESURANCE INSURANCE: Morrison Appeals Decision to Ninth Circuit
--------------------------------------------------------------
Plaintiff Mikeshia Morrison filed an appeal from a court ruling
entered in the lawsuit styled Mikeshia Morrison, on behalf of
herself and all others similarly situated v. Esurance Insurance
Company, a foreign automobile insurance company, Case No.
2:18-cv-01316-TSZ, in the U.S. District Court for the Western
District of Washington, Seattle.
The appellate case is captioned as Mikeshia Morrison v. Esurance
Insurance Company, Case No. 20-80038, in the United States Court of
Appeals for the Ninth Circuit.
As previously reported in the Class Action Reporter, the lawsuit
alleges violations over the parties' insurance policy agreement.
Esurance is an American insurance company. It sells auto, home,
motorcycle, and renters insurance direct to consumers online and by
phone. Its primary competitors are other direct personal insurance
writers, mainly GEICO and Progressive.[BN]
Plaintiff-Petitioner Mikeshia Morrison, on behalf of herself and
all others similarly situated, is represented by:
Duncan Calvert Turner, Esq.
BADGLEY MULLINS TURNER PLLC
19929 Ballinger Way NE, Ste. 200
Seattle, WA 98155
Telephone: (206) 621 6566
E-mail: dturner@badgleymullins.com
- and -
Randall C Johnson, Jr., Esq.
MYERS & COMPANY
1530 Eastlake Avenue East
Seattle, WA 98102
Telephone: (206) 890 0616
E-mail: rcjj.law@gmail.com
- and -
Ryan C. Nute, Esq.
LAW OFFICE OF RYAN C. NUTE
19929 Ballinger Way NE, Ste. 200
Shoreline, WA 98155
Telephone: (206) 330 0482
Facsimile: (206) 774 6036
E-mail: ryan@rcnutelaw.com
The Defendant-Respondent, Esurance Insurance Company, is
represented by:
Gavin W. Skok, Esq.
FOX ROTHSCHILD LLP
1001 Fourth Avenue, Suite 4500
Seattle, WA 98154
Telephone: 206 624-3600
FAIR ISAAC: Garner Suit Asserts Sherman Act Breach
--------------------------------------------------
Garner Properties & Management, on behalf of itself and all others
similarly situated, Plaintiff, v. Fair Isaac Corporation,
Defendant, Case No. 20-cv-04575, (N.D. Ill., August 4, 2020),
actual, treble, and exemplary damages, an award of reasonable
attorney's fees and costs and such other and further relief
resulting from unjust enrichment, fraud and breach of contract and
for violation of the Sherman Act.
Garner Properties & Management, Inc. is a real estate brokerage and
property management company. It indirectly purchases Fair Isaac's
FICO scores through contracts with a third-party credit reporting
company which, in turn, purchases credit screening services.
According to the complaint, Garner Properties regularly purchases
credit reports from credit reporting agencies that collect,
standardize and distribute information concerning consumer credit
activity. They sell credit reports and credit scores, including
Fair Isaac's FICO Scores. The latter has a 90% market share in B2B
Credit Score Market by suppressing competition, obstructing
innovation and limiting access to credit, asserts the complaint.
Fair Isaac's agents broker sales of FICO scores between businesses
using distribution agreements with the Credit Bureaus to place
restrictions on their ability to develop or distribute their own
competitive Credit Scores, prohibit Credit Bureaus from
individually negotiating royalty prices for FICO Score access and
charge discriminatory royalty prices for FICO Scores, adds the
complaint.[BN]
Plaintiff is represented by:
Charles R. Watkins, Esq.
GUIN, STOKES & EVANS, LLC
321 South Plymouth Court, Suite 1250
Chicago, IL 60604
Tel: (312) 878-8391
Fax: (205) 226-2357
Email: charlesw@gseattorneys.com
- and -
Garrett D. Blanchfield, Esq.
Brant D. Penney, Esq.
REINHARDT WENDORF & BLANCHFIELD
332 Minnesota Street, Suite W-1050
St. Paul, MN 55101
Tel: (651) 287-2100
Fax: (651) 287-2103
Email: g.blanchfield@rwblawfirm.com
b.penney@rwblawfirm.com
- and -
William G. Caldes, Esq.
Jeffrey L. Corrigan, Esq.
Jeffery L. Spector, Esq.
SPECTOR ROSEMAN & KODROFF, P.C.
2001 Market Street, Suite 3420
Philadelphia, PA 19103
Tel: (215) 496-0300
Fax: (215) 496-6611
Email: BCaldes@srkattorneys.com
JCorriganf@srkattorneys.com
JSpector@srkattorneys.com
- and -
Brian Murray, Esq.
Lee Albert, Esq.
GLANCY PRONGAY & MURRAY LLP
230 Park Avenue, Suite 530
New York, NY 10169
Tel: (212) 682-5340
Fax: (212) 884-0988
Email: bmurray@glancylaw.com
FANSIDED INC: Carusillo Seeks to Certify Class of Site Experts
--------------------------------------------------------------
In class action lawsuit captioned as BRANDON CARUSILLO,
individually and on behalf of all persons similarly situated, v.
FANSIDED, INC., d/b/a FANSIDED, Case No. 1:20-cv-04766-JPO
(S.D.N.Y.), the Plaintiff asks the Court for an order:
1. conditionally certifying a class of:
"all persons who are working or have performed work in the
United States for FanSided as a Site Expert at any time
within the past three years and who were classified as
independent contractors (collectively "Site Experts" or
the "Fair Labor Standards Act Class");
2. directing the Defendant to produce to the Plaintiff's
counsel the names, last known addresses, telephone
numbers, and email addresses of all potential members of
the FLSA Class within 10 days of the date of Order;
3. permitting the Plaintiff to issue notice to all potential
members of the FLSA Class by first-class mail and
electronic mail, informing them of their right to opt in
to this case, and that this right is unaffected by post-
lawsuit arbitration contracts presented to some members of
the FLSA Class;
4. declaring that any post-Complaint arbitration agreements
entered into between Defendant or Sportority, Inc. on the
one hand, and any potential member of the FLSA Class on
the other hand, are invalid as to the claims of any
potential member of the FLSA Class against Defendant and
any future co-defendant which may be joined;
5. scheduling an opt-in period of 90 days, beginning from the
date of Plaintiff's first issuance of notice;
6. allowing him to send reminder notices by first-class mail
and electronic mail to all potential members of the FLSA
Class who have not yet responded to notice within 45 days
of the first issuance of notice; and
7. approving the Plaintiff's proposed form of notice, and
Plaintiff's proposed Opt-In Consent Form, to be included
in the issuance of notice.
FanSided is a network of fandom-focused sports, entertainment and
lifestyle sites on the Internet.
A copy of the Plaintiff's motion for conditional certification is
available from PacerMonitor.com at https://bit.ly/2ZI7fCj at no
extra charge.[CC]
The Plaintiff is represented by:
James E. Goodley, Esq.
Marc. L. Gelman, Esq.
Ryan P. McCarthy, Esq.
JENNINGS SIGMOND, P.C.
1835 Market Street, Suite 2800
Philadelphia, PA 19103
Telephone: (215) 351-0613
E-mail: jgoodley@jslex.com
mgelman@jslex.com
rmccarthy@jslex.com
FIRST FEDERAL: Court Narrows Claims in Kadow Class Suit
-------------------------------------------------------
In the case, BENJAMIN KADOW, et al., Plaintiffs, v. FIRST FEDERAL
BANK, Successor in Interest to CBC NATIONAL BANK, Defendant, Case
No. 8:19-cv-00566-PWG (D. Md.), Judge Paul W. Grimm of the U.S.
District Court for the District of Maryland, Southern Division,
granted in part and denied in part the Defendant's Motion to
Dismiss.
The case is a purported class action case brought by Plaintiffs
Kadow and Mary and Walsh Jones on behalf of themselves and others
similarly situated against the Defendant. The Plaintiffs allege
that the Defendant and third-party All Star Title, Inc. engaged in
an illegal kickback, price fixing, and refusal to deal scheme that
resulted in the Plaintiffs being overcharged on real estate title
and settlement service fees.
On May 31, 2019, the Plaintiffs filed an Amended Complaint,
alleging that CBC National Bank, predecessor to First Federal Bank,
engaged in various unlawful schemes with All Star, a title and
settlement services company. The alleged scheme has four key
components: kickbacks, price fixing agreements, refusals to deal,
and use of interstate wires.
The basic allegations are that the Participating Lenders and All
Star entered into agreements, under which the lender refers title
and settlement services to All Star and agrees with All Star on the
price of those services. In exchange, All Star pays for marketing
materials and postage for the Participating Lender to use. And on
loans generated by the All Star marketing payments, the
participating lenders refer the customers exclusively to All Star
for title and settlement services. The Plaintiffs allegedly
accomplished all of them, and lured customers into the scheme,
through the use of interstate mail and wires.
As to the conduct of CBC National specifically, the Plaintiffs
allege that CBC National was a Participating Lender in the schemes
described since at least 2011. The schemes were allegedly carried
out at CBC National branches in Towson, Maryland; Parkville,
Maryland; Alpharetta, Georgia; Cumming, Georgia; Blacklick, Ohio;
and Elmhurst, Illinois. Notably, the Plaintiffs also allege that
during this period CBC National maintained an "in house" title and
settlement services company that was a direct competitor with All
Star for title and settlement services on residential mortgage
loans brokered or originated by CBC.
Based on the foregoing, the Plaintiffs allege three counts: (1)
violation of the Real Estate Settlement Procedures Act ("RESPA");
(2) violation of the Sherman Act; and (3) violations of Racketeer
Influenced & Corrupt Organizations Act ("RICO"). Pending is the
Defendant's motion to dismiss all of the claims against it.
Judge Grimm notes that the allegations in the case are familiar
ones, as the Plaintiffs' lawyers are counsel to other plaintiffs
who have filed suit in the Court against other alleged
Participating Lenders based on the same underlying scheme. These
cases are in various pretrial stages and in some of these cases the
judges of the Court have issued memorandum opinions addressing
similar arguments as those raised in the instant case.
In Count I of the Amended Complaint, the Plaintiffs allege
Defendant violated Section 8(a) of the RESPA. The Defendant moves
to dismiss on the basis that the Plaintiffs do not sufficiently
allege that (a) the Defendant was not in RESPA's safe harbor
provisions; (b) the RESPA claims are time-barred; and (c) the
Plaintiffs lack standing for their RESPA claim because they fail to
sufficiently allege actual injury.
Judge Grimm finds that (i) the Plaintiffs have sufficiently alleged
facts that would establish Plaintiffs are outside of RESPA's safe
harbor; (ii) the Plaintiffs have adequately alleged equitable
tolling based on fraudulent concealment; and (iii) the Plaintiffs
adequately alleged injury-in-fact based on the alleged
supracompetitive rates they paid for title and settlement
services.
In Count II of the Amended Complaint, the Plaintiffs allege that
Defendant violated the Sherman Act by (1) conspiring and executing
an agreement to fix the price of titles and settlement services;
and (2) conspiring and executing an agreement to refuse to deal
with competitors. The Defendant moves to dismiss for failure to
state a Sherman Act claim.
Judge Grimm finds that (i) taking the allegations in the complaint
as true and granting inferences to the nonmoving party, the
Plaintiffs' allegations of price sharing and fixing between direct
competitors for title and settlement services is sufficient to
survive the motion to dismiss; and (ii) the Amended Complaint is
devoid of allegations that CBC National and All Star, as title and
settlement service companies, had an agreement to boycott a third
party mortgage lender and cut them out of the market.
In Count III, the Plaintiffs allege violations of the RICO. The
Plaintiffs allege that the Defendant engaged in mail and wire
fraud, based on the Defendant's use of interstate mail and wires to
further the alleged kickback, price fixing, and refusal to deal
schemes.
Judge Grimm opines that the allegations fail to state a RICO claim.
While the Plaintiffs allege that multiple "Participating Lenders"
were involved in the alleged scheme with All Star, there are no
allegations that indicate any of the participating lenders were in
agreement together. If all of the Participating Lenders are
involved, the RICO claim fails as a rimless hub and spoke
conspiracy. And if just CBC National and All Star are involved,
the RICO claim fails as an ordinary business contract or fraud
dispute.
Finally, the Defendant argues that the Court lacks general personal
jurisdiction over the Defendant, and lacks specific personal
jurisdiction over the Defendant as to the claims asserted by the
Joneses and by out of state class members pursuant to Bristol-Myers
Squibb Co. v. Super. Ct. of Cal.
Given that the Plaintiffs' Sherman Act price fixing claims survive,
the Judge holds that the Court has personal jurisdiction over the
Defendant pursuant to 15 U.S.C. Section 22, which provides that any
suit, action, or proceeding under the antitrust laws against a
corporation may be brought not only in the judicial district
whereof it is an inhabitant, but also in any district wherein it
may be found or transacts business. It is sufficient to confer
personal jurisdiction over the Defendant on the Plaintiffs' RESPA
claims as well given they arise from a common nucleus of operative
fact. Issues regarding class certification are properly deferred
until such time as the Court determines whether a class will be
certified and what the nature of that class will be.
Based on the foregoing, Judge Grimm granted in part and denied in
part the Defendant's motion to dismiss. The Defendant's motion to
Dismiss the RESPA and Sherman Act price fixing claims is denied,
but its motion to dismiss the Sherman Act refusal to deal and RICO
claims is granted.
A separate Order will be issued.
A full-text copy of the Court's Sept. 2, 2020 Memorandum Opinion is
available at https://tinyurl.com/y22ut7nb from Leagle.com.
FIRST PREMIER: Loses Bid for Partial Summary Judgment in Moss Suit
------------------------------------------------------------------
In the case, DEBORAH MOSS, individually and on behalf all others
similarly situated, Plaintiff, v. FIRST PREMIER BANK, Defendant,
Case No. 2:13-cv-05438 (ERK) (AYS) (E.D. N.Y.), Judge Edward R.
Korman of the U.S. District Court for the Eastern District of New
York (i) denied the Defendant's motion for partial summary
judgment, and (ii) vacated the stay of discovery.
Moss obtained a $350 payday loan from SFS, Inc., an online payday
lender, in June 2010. The loan agreement disclosed an annual
interest rate of 995.45% and a finance charge of $105. When a
payday lender such as SFS agrees to loan a customer money, it
relies on banks to serve as middlemen to debit the customer's
account. These banks are known as Originating Depository Financial
Institutions ("ODFIs").
First Premier Bank served as an ODFI for one of Moss's payday loans
with SFS. Defendant First Premier Bank did not loan money to the
Plaintiff directly, but instead received payment for its part in
the transaction. The Plaintiff claims that by so doing, the
Defendant unlawfully facilitated high-interest payday loans that
have been outlawed in several states.
In her loan application with SFS, the Plaintiff agreed to arbitrate
any disputes relating to the loan and, separately, not to bring any
claims against SFS or its agents or servicers as a class action.
In September 2013, the Plaintiff filed a complaint against the
Defendant and two other banks, asserting RICO and state-law claims
based on their alleged facilitation of unlawful payday loans.
After the Plaintiff amended her complaint, Judge Bianco compelled
arbitration. Judge Bianco held that the Plaintiff's claims were
sufficiently intertwined with the loan agreement to allow the banks
to enforce the agreement's arbitration clause, because it was
foreseeable that the banks would act as the lender's 'servicers' or
'agents' as set out in that agreement.
Once the parties determined that the contract's designated
arbitrator no longer conducted consumer arbitrations, Judge Bianco
vacated his order compelling arbitration. He next dismissed the
Plaintiff's RICO claims and her claim under New York's General
Business Law, but held that she stated a claim for unjust
enrichment.
Judge Bianco then granted leave to file the operative Third Amended
Complaint, in which the Plaintiff asserts a single RICO conspiracy
claim against First Premier alleging that it facilitated the
collection of unlawful debts. The Defendant now seeks partial
summary judgment to prevent her from proceeding on a class-wide
basis. The Court granted the Defendant's motion to stay class
discovery while the motion was pending.
Judge Bianco previously concluded that the Defendant is a
"servicer" or "agent" of the lender such that it could enforce the
loan agreement's arbitration clause under principles of equitable
estoppel, because the Defendant facilitated the transfer of funds
from the lender to the Plaintiff. Judge Korman finds that the
Plaintiff has not provided a convincing reason to depart from that
analysis for purpose of enforcing the class waiver. He argues that
SFS' agreement with a third party that neither would be an agent of
the other is probative of the relationship between SFS and the
Defendant, because that third party acted as an intermediary
between the two. That argument lacks merit. Even putting aside
the Plaintiff's reliance on a contract between nonparties to shed
light on whether the Defendant was an agent of SFS, a contractual
clause stating that a person or entity is or is not an agent is, of
course, not dispositive of the issue.
The Plaintiff's principal argument is that the class action waiver
is invalid because it is a provision of an unlawfully usurious
contract. The Plaintiff is correct that when a contract violates
New York's civil usury statute, that contract is "void ab initio."
Thus, under New York law, the class action waiver is invalid along
with the rest of the contract. The Defendant's cases are
distinguishable, because they do not involve the rare instance in
which public policy invalidates the entire contract and supporting
document.
Finally, Judge Korman disagrees with the Defendant that the class
waiver contained in the loan application is enforceable merely
because the application did not repeat the interest rate. The
First Department has explained that when a loan is void as
usurious, the entire loan transaction and the associated note, loan
agreement, and collateral agreement are all void and unenforceable.
Moreover, the application and note were executed on the same date,
both were executed between the same parties, and the Note was
attached to the Loan Agreement.
In that context, the "two documents represent a single, integrated
transaction and must be taken together." After all, the Plaintiff
was not in the market for a loan application; she sought the loan
itself. Therefore, the usurious interest rate contained in the
loan note is inextricable from the application and renders its
class action waiver unenforceable, too. In sum, the Plaintiff has
persuasively explained why, under New York law, the class action
waivers contained in the loan application and note are
unenforceable.
Judge Korman concludes that the Plaintiff has not yet demonstrated
that she is entitled to class certification. He holds only that
the Defendant has not shown that it would be proper to dismiss the
class allegations based on the contract the Plaintiff signed.
Accordingly, he denied the Defendant's motion for partial summary
judgment, and vacated the stay of discovery.
A full-text copy of the Court's Sept. 2, 2020 Memorandum & Order is
available at https://tinyurl.com/yyquro8k from Leagle.com.
FIRST SOLAR: Bid for Add'l. Atty.'s Fees in Smilovits Suit Denied
-----------------------------------------------------------------
In the case, Mark Smilovits, Individually and on Behalf of All
Others Similarly Situated, Plaintiff, v. First Solar, Inc., Michael
J. Ahearn, Robert J. Gillette, Mark R. Widmar, Jens Meyerhoff,
James Zhu, Bruce Sohn and David Eaglesham, Defendants, Case No.
CV-12-00555-PHX DGC (D. Ariz.), Judge David G. Campbell of the U.S.
District Court for the District of Arizona denied the Class
Counsel's application for additional attorneys' fees.
Class Counsel Robbins Geller Rudman & Dowd LLP moves for an award
of $1.9 million in attorneys' fees from the $19 million settlement
obtained by opt-out Plaintiffs Maverick Fund, L.D.C., Maverick Fund
USA, Ltd., Maverick Fund II, Ltd., Maverick Neutral Fund, Ltd.,
Maverick Neutral Levered Fund, Ltd., Maverick Long Fund, Ltd., and
Maverick Long Enhanced Fund, Ltd.
The Class Action settled for $350 million, and the Court awarded
the Class Counsel $65,905,000 in attorneys' fees (18.83% of the
settlement amount) and $5,263,516.69 in expenses, with interest.
It found these amounts fair, reasonable, and appropriate. The
Court learned from the Class Counsel's fee application, and noted
in its order awarding fees, that the precise amount of the recovery
-- 18.83% of the settlement -- is dictated by the fee agreement
negotiated at the beginning of the case between the Lead Counsel
and the Lead Plaintiffs, which are sophisticated entities. The
Class Counsel received the maximum amount they were allowed under
the fee agreement they negotiated.
Judge Campbell concludes that the fees and expenses already paid to
the Class Counsel constitute a reasonable percentage of the amount
of any damages and prejudgment interest actually paid to the class.
The Class Counsel themselves established the reasonableness of the
percentage in their agreement with the Lead Plaintiffs. Because
the PSLRA provides that total attorneys' fees and expenses awarded
by the court to counsel for the plaintiff class will not exceed a
reasonable percentage, and the Class Counsel themselves established
the reasonableness of their percentage, the Judge, in his
discretion, will not award more. The Class Counsel have been well
and fully paid for the work they did in the litigation, including
any work that may have benefitted Maverick.
Accordingly, Judge Campbell denied the Class Counsel's application
for additional attorneys' fees. The Money in the "First Solar
Securities Class Action Fee and Expense Account" will be remitted
pro rata to the opt-out Plaintiffs from whose settlements it was
withheld. The motion to seal is granted.
A full-text copy of the Court's Sept. 4, 2020 Order is available at
https://tinyurl.com/yxvvjhfn from Leagle.com.
FLAGSHIP CREDIT: Ward Appeals E.D. Pennsylvania Order to 3rd Cir.
-----------------------------------------------------------------
Plaintiff Robert Ward filed an appeal from a court ruling entered
in the lawsuit styled as Robert Ward, on behalf of himself and all
others similarly situated v. Flagship Credit Acceptance LLC, Case
No. 2-17-cv-02069 (Filed May 5, 2017), in the U.S. District Court
for the Eastern District of Pennsylvania.
As previously reported in the Class Action Reporter, the Plaintiff
alleges that the Defendant negligently, knowingly, and/or willfully
placed automated and prerecorded calls to his cellular phone in
violation of the Telephone Consumer Protection Act.
Flagship is an automobile loan financer which specializes in the
acquisition, issuance and servicing of prime to subprime automotive
retail installment contracts. As part of its acquisition and
servicing of automotive retail installment contracts, it uses
robo-dialing systems to bombard unsuspecting consumers who have no
relationship with it with robocalls and prerecorded messages.
The Plaintiff is not a Flagship customer yet has been bombarded
with autodialed and pre-corded calls made without his consent and
over his objection. The Plaintiff seeks relief for himself and all
others similarly situated for Flagship's unlawful behavior.
The appellate case is captioned as ROBERT WARD, ON BEHALF OF
HIMSELF AND ALL OTHERS SIMILARLY SITUATED v. FLAGSHIP CREDIT
ACCEPTANCE LLC, Case No. 20-8019, in the United States Court of
Appeals for the Third Circuit.[BN]
Plaintiff-Petitioner Robert Ward, on behalf of himself and all
others similarly situated, is represented by:
Sergei Lemberg, Esq.
Stephen F. Taylor, Esq.
LEMBERG LAW
43 Danbury Road, 3rd Floor
Wilton, CT 06897
Telephone: 203 653-2250
Defendant-Respondent Flagship Credit Acceptance LLC is represented
by:
Gerald E. Arth, Esq.
Steven J. Daroci, II, Esq.
FOX ROTHSCHILD
2000 Market Street, 20th Floor
Philadelphia, PA 19103
Telephone: 215 299-2720
GENERAL MOTORS: Golson Not Barred by Berman Ruling to Pursue Case
-----------------------------------------------------------------
Katherine Golson, individually and on behalf of all others
similarly-situated Plaintiff, v. General Motors LLC, Defendant,
Case No. 20-cv-00632, (W.D. Mo., August 7, 2020), seeks declaratory
relief and a determination that she is neither precluded nor
otherwise barred from pursuing claims against General Motors LLC
stemming from oil consumption issues concerning certain 2013 model
year Chevrolet Equinox and GMC Terrain vehicles as a result of the
settlement agreement and judgment of a previous class action
lawsuit in accordance with the Federal Rules of Civil Procedure.
Golson was an absent class member of a previous class action
lawsuit (Case No. 2-18-CV-14371, Berman et al v. General Motors
LLC) arising out of oil consumption issues affecting certain GM
vehicles filed in the United States District Court for the Southern
District of Florida. This case arrived at a proposed settlement
with General Motors and was submitted to the Florida Court for
preliminary approval. However, the parties of the Berman class
action failed to send out notices to Golson at the time required by
the Florida court's preliminary approval order and due process.
Golson contends that the failure to provide procedurally adequate
notice means that Plaintiff and the proposed class members is not
bound by the settlement agreement or judgment of the Berman class
action and that she is free to litigate her claims in subsequent
litigation. [BN]
Plaintiff is represented by:
Thomas J. Golson, Esq.
Anthony K. Knipp, Esq.
AMK LAW LLC
700 West 74th Street, Suite 200
Kansas City, MO 64112
Tel: (816) 932-5532
Email: aknipp@amk-law.com
tgolson@amk-law.com
GENERAL MOTORS: Wins Dismissal of Harris Suit Over Engine Defect
----------------------------------------------------------------
In the case, KELLY HARRIS, individually and on behalf of all others
similarly situated, Plaintiff, v. GENERAL MOTORS LLC, a Delaware
limited liability company, Defendant, Case No. C20-257 TSZ (W.D.
Wash.), Judge Thomas S. Zilly of the U.S. District Court for the
Western District of Washington, Seattle, granted GM's Motion to
Dismiss Class Action Complaint.
Plaintiff Harris owned a used 2012 Chevrolet Silverado, which he
received in 2012 from his former employer as part of a separation
agreement. Harris' vehicle was equipped with a Generation IV 5.3
liter V8 Vortec 5300 LC9 engine. The vehicle soon began to
experience engine problems like fouled spark plugs which caused
engine misfiring, and as a result, in 2014, the vehicle needed a
spark plug replacement.
In 2015, Harris became aware that oil consumption issues were the
cause of the spark plug problems with his vehicle. On an
unspecified date, he took his vehicle into a Chevrolet dealership
to fix the issues with his vehicle's spark plug. He was informed
that the vehicle was low on oil, had fouled spark plugs, and that
the cause of the fouled spark plugs was excessive oil consumption
due to an issue with the piston rings. The dealership also told
Harris that he would need to have his engine replaced.
Harris alleges that the primary cause of the alleged excessive oil
consumption is that the piston rings in the defective engines do
not maintain sufficient tension to prevent oil from being consumed
in the combustion chamber, which then fouls spark plugs and creates
harmful carbon buildup in the pistons and cylinders. He further
alleges that GM has been aware of the Oil Consumption Defect but
failed to publicly disclose it. In support of that allegation,
Harris cites GM's subsequent redesign of the defective engine,
public consumer complaints regarding oil consumption problems in
the defective engines, and technical service bulletins addressing
the oil consumption problem
Harris alleges that the Oil Consumption Defect presents an
unreasonable safety risk to the driver, other passengers of the
Class Vehicles, and the public because the Defect could cause the
engine to catch fire and because it could cause an accident or
leave drivers and passengers stranded in a variety of unsafe
situations. He alleges that he would not have purchased his
vehicle or would have paid less for it had the alleged oil
consumption defect been disclosed.
On behalf of a nationwide class, Harris brings claims for violation
of the Magnuson-Moss Warranty Act ("Count 1"). On behalf of a
Washington class, Harris brings claims for violations of the
Washington Consumer Protection Act ("CPA") ("Count 2"), breach of
express warranty ("Count 3"), fraudulent omission ("Count 4"), and
unjust enrichment ("Count 5"). Harris seeks injunctive relief, as
well as costs, restitution, pre and post-judgment interest, and
damages, including punitive damages.
Before the Court is GM Motion to Dismiss.
For his Express Warranty claim (Count 3), Harris pleads a design
defect inherent in the defective engines. He alleges that GM
breached its express warranty that it would cover repairs to
correct any vehicle defect related to materials or workmanship
during the warranty period.
Judge Zilly concludes that GM's limited warranty does not cover the
alleged design defect. Harris also does not allege that his issues
with the defective engine occurred during the limited warranty
period. He fails to respond to this deficiency in his Opposition,
and therefore appears to have waived it. His express warranty
claim is therefore dismissed with prejudice.
Harris bases his MMWA claim on the same theory as his express
warranty claim. Because Harris does not plead a viable express
warranty claim, his MMWA claim also fails, rules Judge Zilly.
Harris' Magnuson-Moss Warranty Act claim is therefore dismissed
with prejudice.
GM contends that Harris' fraudulent concealment claim is preempted
by the WPLA. In response, Harris contends that his fraudulent
concealment claim is not preempted by the WPLA because it is based
on a fraud theory and because he alleges economic damages based on
contract.
Judge Zilly dismissed Harris' fraudulent concealment claim without
prejudice to replead as a WPLA claim. He finds that Harris' claim
is essentially that GM knew about the Oil Consumption Defect,
concealed that information from Harris and other putative class
members, and that they suffered damages as a result. WPLA provides
the exclusive remedy for such a claim.
To assert a CPA claim, Harris must allege deceptive advertising,
causation, and injury with specificity. He alleges that he will
suffer future injury because GM never disclosed the Oil Consumption
Defect and continues to actively conceal it. Harris is aware of
the Oil Consumption Defect and its primary cause. Any future
concealment of the Defect by GM cannot cause further injury to
Harris. Harris therefore has not alleged a future injury. His CPA
claim is dismissed without prejudice.
According to Judge Zilly, a party seeking to recover under a theory
of unjust enrichment must show that the plaintiff conferred a
benefit upon the defendant. Harris does not dispute that he
neither purchased nor leased his vehicle, and he does not otherwise
allege that he conferred a benefit upon GM. Instead, he responds
by stating that courts in Washington have no such requirement.
Harris is mistaken. Washington law requires a showing of a benefit
conferred upon the defendant by the plaintiff. Harris' Unjust
Enrichment Claim is dismissed with prejudice.
Finally, having dismissed Harris' underlying claims, GM's Motion to
Strike Class Allegations is therefore stricken as moot, rules the
Court.
For the foregoing reasons, Judge Zilly granted the Defendant's
Motion to Dismiss as follows: Count 1 (Magnuson-Moss Warranty Act
claim), Count 2 (injunctive relief portion of CPA claim only),
Count 3 (breach of express warranty claim), and Count 5 (unjust
enrichment claim) are dismissed with prejudice. Count 2 (CPA
claim, except the injunctive relief portion) and Count 4
(fraudulent omission claim) are dismissed without prejudice.
The Plaintiff will file any amended complaint within 90 days from
the date of the Order. The Clerk is directed to send a copy of the
Order to all the counsel of record.
A full-text copy of the Court's Sept. 2, 2020 Order is available at
https://tinyurl.com/y53kwj7z from Leagle.com.
GOLDEN PEANUT: Class Status Sought in Farmers Antitrust Action
--------------------------------------------------------------
In the lawsuit RE PEANUT FARMERS ANTITRUST LITIGATION, Case No.
2:19-cv-00463-RAJ-LRL (E.D. Va.), the Plaintiffs D&M Farms, Mark
Hasty, Dustin Land, Lonnie Gilbert, Daniel Howell and Rocky Creek
Farms move the Court for an order:
1. certifying a class of:
"all persons or entities in the United States who sold raw,
harvested runner peanuts to any of the Defendants, 1 their
subsidiaries or joint-ventures, from January 1, 2014
through December 31, 2019."
Specifically excluded from this Class are the Defendants;
the officers, directors or employees of any Defendant; any
entity in which any Defendant has a controlling interest;
and any affiliate, legal representative, heir or assign of
any Defendant. Also excluded from this Class are any
federal, state or local governmental entities, any judicial
officer presiding over this action and the members of
his/her immediate family and judicial staff, any juror
assigned to this action, and any co-conspirator identified
in this action.;
2. appointing themselves as representatives of the Class; and
3. appointing Brian D. Clark of Lockridge Grindal Nauen PLLP
and Kimberly A. Justice of Freed Kanner London & Millen LLC
as Co-Lead Counsel for the Class and Wyatt B. Durrette, Jr.
Of Durrette, Arkema, Gerson & Gill PC as Liaison Counsel
for the Class.
On Sept. 5, 2019, the antitrust team at Lockridge Grindal Nauen
filed an antitrust lawsuit on behalf of peanut farmers against
Golden Peanut and Birdsong. The complaint alleges that Birdsong and
Golden Peanut coordinated with one another in violation of
antitrust laws to underpay farmers for runner peanuts, the primary
type of commercial peanut raised. As a result, peanut farmers have
suffered low payments for their crops.
A copy of the Plaintiffs' motion for class certification is
available from PacerMonitor.com at https://bit.ly/32xu7Gs at no
extra charge.[CC]
The Plaintiffs are represented by:
Wyatt B. Durrette, Jr., Esq.
Kevin J. Funk, Esq.
DURRETTE, ARKEMA, GERSON & GILL PC
1111 East Main Street, 16th Floor
Richmond, VA 23219
Telephone: (804) 775-6900
Facsimile: (804) 775-6911
E-maiL: wdurrette@dagglaw.com
kfunk@dagglaw.com
- and -
W. Joseph Bruckner, Esq.
Brian D. Clark, Esq.
Simeon A. Morbey, Esq.
Stephanie A. Chen, Esq.
LOCKRIDGE GRINDAL NAUEN P.L.L.P.
100 Washington Avenue South, Suite 2200
Minneapolis, MN 55401
Telephone: (612) 339-6900
Facsimile: (612) 339-0981
E-mail: wjbruckner@locklaw.com
bdclark@locklaw.com
samorbey@locklaw.com
sachen@locklaw.com
- and -
Kimberly A. Justice, Esq.
Jonathan M. Jagher, Esq.
FREED KANNER LONDON & MILLEN, LLC
923 Fayette Street
Conshohocken, PA 19428
Telephone: (610) 234-6487
Facsimile: (224) 632-4521
E-mail: kjustice@fklmlaw.com
jjagher@fklmlaw.com
- and -
Douglas A. Millen, Esq.
Michael E. Moskovitz, Esq.
Robert J. Wozniak, Esq.
Brian M. Hogan, Esq.
FREED KANNER LONDON & MILLEN, LLC
2201 Waukegan Road, No. 130
Bannockburn, IL 60015
Telephone: (224) 632-4500
Facsimile: (224) 632-4521
E-mail: dmillen@fklmlaw.com
mmoskovitz@fklmlaw.com
rwozniak@fklmlaw.com
bhogan@fklmlaw.com
- and -
Jeffrey J. Corrigan, Esq.
SPECTOR ROSEMAN & KODROFF, P.C.
Two Commerce Square
2001 Market Street, Suite 3420
Philadelphia, PA 19103
Telephone: (215) 496-0300
Facsimile: (215) 496-6611
E-mail: jcorrigan@srkattorneys.com
GULFPORT ENTERGY: Joint Bid for Conditional Class Status Granted
----------------------------------------------------------------
In the class action lawsuit captioned as BRYON LEFORT, individually
and on behalf of all other members of the general public similarly
situated, v. GULFPORT ENTERGY CORP., Case No. 2:20-cv-01792-SDM-KAJ
(S.D. Ohio), the Hon. Judge Sarah D. Morrison entered an order:
1. granting the Parties' Joint Motion for Conditional Class
Certification and Court-Supervised Notice to Potential
Opt-In Plaintiffs;
2. mooting the Plaintiffs' Motion for Conditional
Certification; and
3. approving the Notice of Collective Action Lawsuit and
Consent to Join.
Gulfport is an independent oil natural gas exploration and
production company. The company focuses on the exploration,
exploitation, acquisition and production of natural gas, natural
gas liquids, and crude oil in the United States.[CC]
HANKOOK TIRE: Dionysius Suit Seeks FLSA Collective Status
---------------------------------------------------------
In class action lawsuit captioned as MATTHEW DIONYSIUS,
Individually, on behalf of himself and on behalf of others
similarly situated, v. HANKOOK TIRE MANUFACTURING TENNESSEE, LP, a
Tennessee Corporation, Case No. 3:20-cv-00091 (M.D. Tenn.), the
Plaintiff asks the Court for an order:
1. authorizing his claims to proceed as a collective action
for overtime compensation violations under the Fair Labor
Standards Act;
2. directing the Defendant to immediately provide the
Plaintiff's counsel a computer-readable file containing
the names (last names first), last known physical
addresses, last known email addresses, social security
numbers, dates of employment and last known telephone
numbers of all putative class members during the last
three years;
3. providing that Court-approved notice be posted at the
Defendant's Clarksville, Tennessee facility, enclosed with
all of Defendant's currently employed putative class
members' next regularly-scheduled paycheck/stub, and be
mailed to putative class members so that they can assert
their claims on a timely basis;
4. tolling the statute of limitations for the putative class
as of the date this Motion is fully briefed;
5. authorizing a reminder postcard be issued mid-way through
the requested 90-day notice period; and
6. requiring that the opt-in Plaintiff's Consent to Join
Forms be deemed "filed" on the date they are postmarked.
The Defendant is a tire manufacturer.
A copy of the Plaintiff's motion for conditional certification is
available from PacerMonitor.com at https://bit.ly/2FqB8QZ at no
extra charge.[CC]
The Plaintiff is represented by:
Robert E. Turner, IV, Esq.
Gordon E. Jackson, Esq.
J. Russ Bryant, Esq.
Robert E. Turner, IV, Esq.
Nathaniel A. Bishop, Esq.
JACKSON, SHIELDS, YEISER, HOLT
OWEN & BRYANT
262 German Oak Drive
Memphis, TN 38018
Telephone: (901) 754-8001
Facsimile: (901) 754-8524
E-mail: gjackson@jsyc.com
rbryant@jsyc.com
rturner@jsyc.com
nbishop@jsyc.com
- and -
Nina Parsley, Esq.
PONCE LAW
400 Professional Park Drive
Goodlettsville, TN 37072
E-mail: nina@poncelaw.com
HAWAII: Final Judgment in Kalima Class Suit Partly Affirmed
-----------------------------------------------------------
In the case, LEONA KALIMA; DIANE BONER; RAYNETTE NALANI AH CHONG,
special administrator of the estate of JOSEPH CHING, deceased;
CAROLINE BRIGHT; DONNA KUEHU; IRENE CORDEIRO-VIERRA; and JAMES
AKIONA, on behalf of themselves and all others similarly situated,
Plaintiffs-Appellees-Cross-Appellants, v. STATE OF HAWAII; STATE OF
HAWAII DEPARTMENT OF HAWAIIAN HOME LANDS; STATE OF HAWAI'I HAWAIIAN
HOME LANDS TRUST INDIVIDUAL CLAIMS REVIEW PANEL; DAVID Y. IGE, in
his official capacity as Governor of the State of Hawai'i,
Defendants-Appellants-Cross-Appellees, Case No. SCAP-18-0000068
(Haw.), the Supreme Court of Hawaii affirmed in part and vacated
in part the circuit court's Jan. 9, 2018 final judgment, and
remanded for further proceedings consistent with its Opinion.
In 1990, Senator Michael Crozier observed that "both the length of
the list and the length of the wait make the vast majority of
Native Hawaiian people despair of ever receiving an award of land."
In the 30 years since Senator Crozier's statement, the State of
Hawaii has done little to address the ever-lengthening waitlist for
lease awards of Hawaiian home lands.
In light of the Circuit Court of the First Circuit's 2009 ruling
that the State breached its duties as trustee of the Hawaiian Home
Lands Trust, the Supreme Court of Hawaii is now tasked with
reviewing the circuit court's decision granting and apportioning
monetary damages to those Native Hawaiian beneficiaries who, as a
result of the State's mismanagement of the Trust, have languished
on the waitlist -- some for decades.
Constrained by the provisions of Hawaii Revised Statutes ("HRS")
Chapter 674 (Supp. 1991), entitled "Individual Claims Resolution
Under the Hawaiian Home Lands Trust," the circuit court adopted a
Fair Market Rental Value model ("FMRV model") by which it can
estimate the actual loss each individual beneficiary incurred. The
interests of justice and the extent of the State's wrongful conduct
support a liberal interpretation of HRS Chapter 674 and a generous
construal of the circuit court's damages model. The Supreme Court
of Hawaii hold that the FMRV model is an adequate method for
approximating actual damages.
The Plaintiffs-Appellees Cross-Appellants are a group of Native
Hawaiian Trust beneficiaries who claim that they incurred damages
while on the waitlist to receive homestead land as a result of
breaches of trust duties by Defendants-Appellants Cross-Appellees
the State of Hawaii, the State of Hawaii Department of Hawaiian
Home Lands ("DHHL"), the State of Hawaii Home Lands Trust
Individual Claims Review Panel, and Gov. David Y. Ige. Both the
Plaintiffs and the State appealed the circuit court's Jan. 9, 2018
final judgment.
On Jan. 9, 2018, the circuit court entered an HRCP Rule 54(b) final
judgment as to the waitlist subclass's claims. It ordered (i) that
all claims of the Waiting List Subclass have been decided by the
Court in favor of the Waiting List Subclass Plaintiffs; and (ii)
that all claims in the Supplemental Complaint For Waiting List
Damages, Filed Dec. 19, 2013, regarding the amount of damages, if
any, each Waiting List Subclass Plaintiff representative or member
is entitled to recover under the orders establishing the model,
rules, and claims administration process previously entered for
that purpose, have been decided by the Court.
In accordance with HRCP Rules 54(b) and 58, the circuit court
expressly found that there is no just reason for delay and
expressly directed entry of judgment in favor of the Waiting List
Damages Subclass. All claims of the Waiting List Damages Subclass
have been resolved and only ministerial functions are necessary to
administer those claims.
The State filed a notice of appeal on Feb. 6, 2018. The Plaintiffs
filed a notice of cross-appeal on Feb. 19, 2018. The Plaintiffs
filed an application for transfer to the Supreme Court of Hawaii on
Dec. 31, 2018, to which the State filed a response of no
opposition. The Supreme Court granted the Plaintiffs' application
for transfer on Feb. 5, 2019.
In resolving the case, the Supreme Court bear foremost in mind its
admonition in Kalima I that HRS Chapter 674, a remedial statute,
should be liberally construed to suppress the perceived evil and
advance the enacted remedy and should not be narrowly interpreted
to impede rather than advance the remedies provided by the statute.
That is to say -- it is in the interests of justice to construe
HRS Chapter 674 in a manner that permits the advancement of the
case to the final stages of its resolution and to thereby afford a
fair remedy to the beneficiaries who have for decades been deprived
of the opportunity to lease their native land from the State.
The central issue in the case is whether the circuit court's FMRV
damages model calculates individual damages in a method permitted
by HRS Chapter 674. The Plaintiffs, who proposed a similar FMRV
model in their initial damages model proposal, assert that the FMRV
model does not contravene Chapter 674 because, they argue,
"out-of-pocket loss," as contemplated by HRS Section 674-2, means
the value of the lost benefit, i.e., the value of a homestead. The
State maintains that the FMRV model contravenes Chapter 674's
"actual damages" requirement, which, the State argues, limits
damages to the amount that subclass members actually spent to rent
alternative land during the breach-caused delay period.
The Hawaii Supreme Court holds that while the FMRV model may not
measure actual damages with exactitude, exactitude is not required
under the circumstances. The circuit court as factfinder found
that the FMRV model was a reasonable method to determine actual
damages as defined under HRS Section 674-2, and the Hawaii Supreme
Court finds no basis to interfere with that determination. The
Hawaii Supreme Court therefore finds no error with the general
method adopted by the circuit court. The Hawaii Supreme Court
holds that the circuit court erred with respect to specific
findings within the Order Re FMRV Damages Model. The Hawaii
Supreme Court therefore affirms in part the circuit court's Order
Re FMRV Damages Model.
Next, the Hawaii Supreme Court finds that the court's definition of
prejudgment interest, viewed together with the United States
Supreme Court's observation about the relatedness of inflation and
prejudgment interests, indicate that the adjustment of the
Plaintiffs' damages to account for inflation in the case would
impermissibly constitute prejudgment interest. Moreover,
prejudgment interest does not constitute actual damages and is
therefore precluded by HRS Chapter 674. Plainly, awarding
beneficiaries more than what they actually paid toward alternative
lands would result in awards that exceed beneficiaries' actual
damages.
Therefore, adjusting beneficiaries' damages for inflation would
also run afoul of HRS Chapter 674. The Hawaii Supreme Court holds
that the circuit court correctly ruled that damages may not be
adjusted to present value, as doing so would constitute the award
of prejudgment interest in violation of HRS Section 661-8 and would
contravene the express actual damages limitation of HRS Chapter
674.
The circuit court adopted the six-year rule based on Henderson's
"mere speculation or guess." In addition, the homestead
development process timeline appears to be unrelated to the timing
of when claimants filed their applications. In light of the
foregoing, the circuit court erred in adopting the six-year rule.
The Hawaii Supreme Court vacates the Order Re FMRV Model to the
extent that it adopted the six-year rule.
Under the basic principles of trust law, a successor trustee is
liable to a beneficiary for breach of trust if the trustee (a)
knows or should know of a situation constituting a breach of trust
committed by the trustee's predecessor and improperly permits it to
continue; (b) neglects to take proper steps to compel the
predecessor to deliver the trust property to the trustee; or (c)
neglects to take proper steps to redress a breach of trust
committed by the predecessor. Restatement (Second) of Trusts
Section 223.
The State knew of the federal government's misuse of trust lands
and improperly permitted it to continue. In addition, the State
neglected to take proper steps to redress the breach committed by
the federal government as original trustee. The State is clearly,
then, liable to the beneficiaries for breach of trust. As a
result, the circuit court correctly found that the State breached
its trust duties by failing to take action to restore recovered
land to the Trust upon Statehood in 1959.
Finally, the Hawaii Supreme Court holds that the circuit court did
not err in establishing the subclass list. The class has been
certified, and the class list is established. Each class member's
individual entitlement to damages will be determined, and no
subclass member who is "categorically not entitled to relief" will
obtain damages or a favorable judgment.
The Hawaii Supreme Court resolved the foregoing issues as follows.
The Hawaii Supreme Court (1) affirmed the Feb. 14, 2013 Order Re
FMRV Damages Model in accordance with the preceding analysis; (2)
affirmed the Oct. 7, 2014 Trial Order adopting the best fit curve
and denying increases for CPI or present value adjustments; (3)
affirm the Sept. 22, 2016 order selecting the Ma'ili lot as the
sample residential lot to be used statewide; (4) vacate the Jan.
24, 2012 order establishing the "six-year rule;" (5) affirmed the
Nov. 3, 2009 liability order finding that the State breached its
trust duties by failing to correct ongoing dispossession of trust
lands; and (6) affirmed the June 6, 2007 order certifying the
waitlist subclass. The Hawaii Supreme Court further held that the
State bears the burden of proving that a beneficiary failed to
mitigate damages.
A full-text copy of the Supreme Court of Hawaii's June 30, 2020
Opinion is available at https://bit.ly/3745gwD from Leagle.com.
Clyde J. Wadsworth, Kimberly T. Guidry, Robert T. Nakatsuji, and
Kaliko`onalani D. Fernandes, for
Defendants-Appellants/Cross-Appellees.
Carl M. Varady and Thomas R. Grande for
Plaintiffs-Appellees/Cross-Appellants.
HNN ASSOCIATES: Court Grants Class Cert. Bid in Jammeh
------------------------------------------------------
In the case, ADAMA JAMMEH, et al., Plaintiffs, v. HNN ASSOCIATES,
LLC, et al., Defendants, Case No. C19-0620JLR (W.D. Wash.), Judge
James L. Robart of the U.S. District Court for the Western District
of Washington, Seattle, granted Plaintiffs Jammeh and Oumie
Sallah's motion for class certification under Federal Rule of Civil
Procedure 23, based on the modified class definitions.
HNN is the property manager for a low-income housing complex owned
by Defendant Gateway, LLC. It currently manages just over 6,000
apartment homes in 28 apartment communities. Twenty-four of those
apartment communities accept only tenants qualified for the
Low-Income Housing Tax Credit program. HNN stores information
pertaining to the complexes it manages and the tenants who live in
those complexes in a web-based system called Yardi, a primary
technology tool for HNN and integral to its business operations.
HNN has a single Community Operations Manual that is available
electronically to all employees, containing HNN's policies on
subjects such as move-in and move-out. All new tenants are
required to pay a security deposit of either $400 or $700 based on
predetermined criteria. The Plaintiffs signed a standard form
lease that HNN used throughout its communities until February 2019.
In February 2019, HNN hired a different company to do tenant
screening and changed its lease forms.
The "Move-In/Move-Out Inspection Form" that HNN completed for the
Plaintiffs' apartment unit is a form HNN used at its apartment
communities until at least February 2019. HNN attached a blank
copy of the form to the Plaintiffs' lease. In February 2019, HNN
replaced the form with a four-page checklist that calls for the
input of more detail concerning the condition of the unit at both
move-in and move-out. The Manual contains a policy requiring
completion of a Move-In/Move-Out Inspection Form when a tenant
moves in.
CDR is a debt collection company with primary collection portfolios
consisting of property management debt. From February 2017 to
February 2019, HNN contracted exclusively with CDR for
collections.
The Plaintiffs are sisters who emigrated from Gambia. They applied
for an apartment at the Gateway Apartments. On Sept. 6, 2017, they
signed tax credit documentation acknowledging that HNN could evict
them for good cause, including for violations of the lease. Ms.
Jammeh did not acknowledge a spouse anywhere on her paperwork. HNN
accepted the Plaintiffs' application, and the Plaintiffs signed a
lease and paid a $700 deposit. They moved into their Gateway
apartment on Sept. 28, 2017.
On Jan. 22, 2018, Ms. Jammeh sent an email to the Gateway
Apartments office asking an HNN employee to print a letter to
Gambian authorities regarding her request for a divorce from Sarjo
Sonko. In 2005, she was married to Mr. Sonko in absentia under
sharia law in Gambia. Mr. Sonko claims at least one other wife.
Numerous people informed Ms. Jammeh that her proxy marriage under
sharia law to Mr. Sonko was not legal in the United States.
On Jan. 24, 2018, Katie Long, an HNN employee and the Gateway
Community Manager, issued the Plaintiffs a "3-Day Notice to Quit"
the premises. The notice states that the Plaintiffs must surrender
possession of the apartment within three days because Ms. Jammeh
failed to disclose that she had a spouse in paperwork she filled
out when she applied to rent a Gateway apartment. The notice also
states that if the Plaintiffs failed to surrender the premises, HNN
would institute judicial proceedings to obtain their eviction.
On the day she was served with the notice, Ms. Jammeh went to the
Gateway Apartments office to explain to Ms. Long that she was not
legally married in the United States. On Jan. 29, 2018, Snohomish
County Legal Services sent Ms. Long a letter explaining the same
thing. HNN did not rescind the notice. On Feb. 5 and 6, 2018, HNN
conducted an inspection of the Plaintiffs' apartment and noted
damage on Move-In/Move-Out Inspection Form, along with
photographs.
HNN maintains that it mailed the Plaintiffs a letter, dated Feb.
27, 2018, stating that they owed $14,919.11 to HNN. It sent the
letter to them 22 days, rather than the required 21 days, after the
Plaintiffs' moved out because Ms. Long suffered a broken arm and
could not work for two weeks. On March 9, 2018, HNN sent a revised
statement demanding payment of $3,286.58. On March 22, 2018, CDR
sent the Plaintiffs a collection letter demanding $3,286.58 in
principal and an additional $48.62 in interest. It attempted to
collect these amounts by making numerous calls to the Plaintiffs.
Ultimately, the Plaintiffs paid CDR $2,629.26. CDR maintains that
the amount the Plaintiffs paid did not represent a charge for any
interest.
The Plaintiffs seek class certification for their first, second,
third, and fourth causes of action. Theur first cause of action is
against CDR for allegedly attempting to collect interest not
legally due in violation of the Washington Collection Agency Act
("CAA"), which is a per se violation of the Washington Consumer
Protection Act ("CPA"). Their second cause of action is against
CDR and CDR's President William Wojdak for collecting or attempting
to collect interest not legally due in violation of the Fair Debt
Collection Practices Act ("FDCPA"). The third cause of action is
against HNN for their allegedly unfair acts under the CPA. In
their fourth cause of action, the Plaintiffs allege two violations
of Washington's Residential Landlord Tenant Act ("RLTA"), against
HNN, for which the Plaintiffs seek class certification.
First, the Plaintiffs allege that HNN violated the RLTA by
collecting security deposits without providing a written checklist
or statement specifically describing the condition and cleanliness
of or existing damages to the premises and furnishings, including,
but not limited to, walls, floors, countertops, carpets, drapes,
furniture, and appliances. They allege that because HNN collected
their $700 deposit without providing an adequate checklist, HNN is
liable to them for the deposit. Second, they allege that HNN
violated the RLTA by failing to send out move out statements
explaining the basis for retaining their security deposit within 21
days after they moved out.
In their second amended complaint, the Plaintiffs sought to certify
the following classes:
a. HNN Class: All former tenants of an HNN managed property in
Washington against whom HNN (1) collected a deposit or security
without providing a move-in checklist that complies with the
requirements of RCW 59.18.260; and/or (2) retained all or part of a
security deposit without providing a statement of its basis for
retaining the deposit in the time and manner required by RCW
59.18.280; and/or (3) assessed additional fees based on a Move-Out
inspection without allowing the tenant the opportunity to be
present at the inspection or to dispute HNN's inspection findings.
b. CDR Class: All members of the HNN Class from whom CDR
collected, or attempted to collect the move-out charges referred by
HNN and/or charged interest on claimed amounts that were calculated
from a time before the amounts had become liquidated.
However, in their motion for class certification, the Plaintiffs
modify their requests for class certification as follows:
a. HNN Classes: Former tenants of an HNN managed property in
Washington who moved in before Feb. 1, 2019 and: (1) who moved out
on or after March 7, 2017, and from whom HNN collected a deposit or
security without providing a move-in checklist that stated the
condition of the walls, floors, countertops, carpets, and
appliances in the unit (the Move-In Form Class); or (2) who moved
out on or after March 7, 2017, and to whom HNN mailed a statement
of HNN's basis for retaining a deposit more than 21-days after the
tenant moved out of an HNN-managed unit (the Late Statement Class);
or (3) who moved into an HNN managed property after July 31, 2016,
and whose deposit was forfeited by HNN (the Forfeiture Class).
b. CDR Class: All former tenants of an HNN managed property in
Washington whose accounts were placed with CDR between Feb. 13,
2017 and Jan. 31, 2019, and to whom CDR sent at least one written
collection demand.
Judge Robart concludes that the Plaintiffs have demonstrated all
the elements required under Rule 23(a) and Rule 23(b)(3) for class
certification of the HNN Classes and the CDR Class, as modified.
Accordingly, he granted the Plaintiffs' motion for class
certification subject to the class description modifications.
The certified classes are:
a. HNN Classes: Former tenants of an HNN managed property in
Washington who moved in before Feb. 1, 2019 and: (1) who moved out
on or after July 12, 2017, and from whom HNN collected a deposit or
security without providing a move-in checklist that stated the
condition of the walls, floors, countertops, carpets, and
appliances in the unit (the Move-In Form Class); or (2) who moved
out on or after July 12, 2017, and to whom HNN mailed a statement
of HNN's basis for retaining a deposit more than 21-days after the
tenant moved out of an HNN-managed unit (the Late Statement Class);
or (3) who moved in to an HNN managed property after July 31, 2016,
and whose deposit was forfeited by HNN (the Forfeiture Class).
b. CDR Class: All former tenants of an HNN managed property in
Washington whose accounts HNN placed with CDR between Feb. 13, 2017
and Jan. 31, 2019, and to whom CDR sent at least one written
collection demand.
The certified claims are the First, Second, Third, and Fourth
claims for relief set forth in the Plaintiffs' Second Amended
Complaint.
Judge Robart appointed (i) Plaintiffs Jammeh and Sallah as the
representatives of the Classes, and (ii) Terrell Marshall Law
Group, The Law Office of Paul Arons, and Leonard Law as the class
counsel.
He ordered the parties to provide briefing on the merits of
creating an FDCPA subclass, how such a subclass should be
described, whether the subclass independently meets the
requirements of Rule 23, whether Plaintiffs must designate an
additional named Plaintiff for such a subclass, and any other
issues that the parties believe merit the Court's attention
concerning such a subclass.
Judge Robart ordered the Plaintiffs to file an opening memorandum
concerning a possible FDCPA subclass no later than Sept. 23, 2020,
and to limit the opening memorandum to no more than 15 pages. The
Defendants were also ordered file a responsive memorandum no later
than Oct. 7, 2020, and will limit the responsive memorandum to no
more than 15 pages. The Plaintiffs were ordered file a reply
memorandum, if any, no later than Oct. 14, 2020, and to limit it to
no more than seven pages.
Judge Robart ordered the parties to confer regarding the form of
class notice and the Plaintiffs to submit their proposed notice
plan to the Court within 20 days of its determination concerning an
FDCPA subclass and to inform the Court whether the Defendants agree
to the Plaintiffs' proposed plan.
A full-text copy of the Court's Sept. 9, 2020 Order is available at
https://tinyurl.com/yab5qobh from Leagle.com.
HNN ASSOCIATES: Court Grants Motion for Class Certification
-----------------------------------------------------------
In the class action lawsuit captioned as ADAMA JAMMEH, et al., v.
HNN ASSOCIATES, LLC, et al., Case No. 2:19-cv-00620-JLR (W.D.
Wash.), the Hon. Judge James L. Robart entered an order:
1. certifying the following classes:
HNN CLASSES:
"former tenants of an HNN managed property in Washington
who moved in before February 1, 2019 and:
(a) who moved out on or after July 12, 2017, and from whom
HNN collected a deposit or security without providing
a move-in checklist that stated the condition of the
walls, floors, countertops, carpets, and appliances in
the unit (the "Move-In Form" Class); or
(b) who moved out on or after July 12, 2017, and to whom
HNN mailed a statement of HNN's basis for retaining a
deposit more than 21-days after the tenant moved out
of an HNN-managed unit (the "Late Statement" Class);
or
(c) who moved in to an HNN managed property after July 31,
2016, and whose deposit was forfeited by HNN (the
"Forfeiture Class")."
CDR CLASS:
"all former tenants of an HNN managed property in
Washington whose accounts HNN placed with CDR between
February 13, 2017, and January 31, 2019, and to whom CDR
sent at least one written collection demand".
2. appointing the Plaintiffs Adama Jammeh and Oumie Sallah as
representatives of the Classes;
3. appointing the Terrell Marshall Law Group, The Law Office
of Paul Arons, and Leonard Law as class counsel;
4. directing the parties to provide briefing on the merits of
creating an FDCPA subclass, how such a subclass should be
described, whether the subclass independently meets the
requirements of Rule 23, whether Plaintiffs must designate
an additional named plaintiff for such a subclass, and any
other issues that the parties believe merit the court's
attention concerning such a subclass.
5. directing the Plaintiffs to file an opening memorandum
concerning a possible FDCPA subclass no later than
September 23, 2020, and shall limit the opening memorandum
to no more than 15 pages;
6. directing the Defendants to file a responsive memorandum
no later than October 7, 2020, and shall limit the
responsive memorandum to no more than 15 pages;
7. directing the Plaintiffs to file a reply memorandum, if
any, no later than October 14, 2020, and shall limit it to
no more than 7 pages;
8. directing the parties to confer regarding the form of
class notice and Plaintiffs shall submit their proposed
notice plan to the court within 20 days of the court's
determination concerning an FDCPA subclass and shall
inform the court whether Defendants agree to the
Plaintiffs' proposed plan.
The Court said, "HNN does not dispute that the proposed HNN Classes
satisfy the Rule 23(a)(1) numerosity requirement, the Rule 23(a)(2)
commonality requirement, or the Rule 23(a)(4) adequacy requirement
concerning class counsel. The court has examined the Plaintiffs'
proffer concerning these prerequisites and agrees that the
Plaintiffs meet their burden of demonstrating these Rule 23(a)
prerequisites for the HNN Classes. CDR does not dispute that the
Plaintiffs satisfy the Rule 23(a)(1) numerosity requirement; nor
does CDR dispute the Rule 23(a)(4) adequacy of Plaintiffs' counsel.
The court has examined Plaintiffs' proffer concerning these
prerequisites and agrees that they have met their burden concerning
these prerequisites for purposes of certifying the CDR class."
The Plaintiffs allege that HNN violated the RLTA by collecting
security deposits without providing "a written checklist or
statement specifically describing the condition and cleanliness of
or existing damages to the premises and furnishings, including
walls, floors, countertops, carpets, drapes, furniture, and
appliances." The Plaintiffs allege that because HNN collected
Plaintiffs' $700.00 deposit without providing an adequate
checklist, HNN is liable to Plaintiffs for the deposit.
The Plaintiffs also asserts claims against CDR for allegedly
attempting to collect interest not legally due in violation of the
Washington Collection Agency Act, which is a per se violation of
the Washington Consumer Protection Act.
HNN is the property manager for a low-income housing complex owned
by Defendant Gateway, LLC. HNN currently manages "just over 6,000
apartment homes" in 28 apartment communities. CDR is a debt
collection company with primary collection portfolios consisting of
property management debt.
A copy of the Court's Order granting the Plaintiffs' motion for
class certification is available from PacerMonitor.com at
https://bit.ly/3kk4Tl9 at no extra charge.[CC]
HUUUGE INC: Jan. 7 Final Approval Hearing in Wilson Class Suit Set
------------------------------------------------------------------
In the case, SEAN WILSON, individually and on behalf of all others
similarly situated, Plaintiff, v. HUUUGE, INC., Defendant, Case No.
C18-5276RSL (W.D. Wash.), Judge Robert S. Lasnik of the U.S.
District Court for the Western District of Washington, Seattle,
will hold a Final Approval Hearing on Jan. 7, 2021, at 1:30 p.m.,
either in person at Courtroom 15106, United States Courthouse 700
Stewart Street, Seattle, WA 98101, or by telephone or
videoconference.
Judge Lasnik may adjourn the Final Approval Hearing and may approve
the proposed Settlement in the case with such modifications as the
Parties may agree to, if appropriate, without further notice to the
Settlement Class. He may decide to hold the Final Approval Hearing
by telephone or video conference without further mailed notice to
the Settlement Class.
If he orders that the Final Approval Hearing be conducted
telephonically or by video conference, that decision will be posted
on the settlement website www.bigfishgamessettlement.com. Any
Settlement Class Member who wishes to appear at the Final Approval
Hearing should consult the Court's docket and/or the settlement
website for any change in date, time, or format of the hearing.
Any Settlement Class Member who or which does not request exclusion
from the Settlement Class may appear at and participate in the
Final Approval Hearing by (a) submitting written objections to the
Settlement Agreement, the proposed plan of allocation, and/or
counsel's fee petition as set forth in the Agreement and (b) filing
a notice of appearance with the Clerk of Court no later than Dec.
10, 2020, or as the Court may otherwise direct. Any Settlement
Class Member who does not enter an appearance in the matter will be
represented at the Final Approval Hearing by the Class Counsel.
The Class Counsel will file and serve the opening papers in support
of the proposed Settlement, class certification, the proposed plan
of allocation, and the Class Counsel's motion for attorney's fees
and expenses no later than Nov. 9, 2020. Reply papers, if any,
will be filed and served no later than seven calendar days prior to
the Settlement Hearing.
A full-text copy of the Court's Sept. 4, 2020 Order is available at
https://tinyurl.com/y6jece7w from Leagle.com.
ICHIRO SUSHI: Ji Li Appeals S.D.N.Y. Judgment to Second Circuit
---------------------------------------------------------------
Plaintiffs and Counter-Defendants Ji Li, et al., filed an appeal
from the District Court's Judgment, dated May 4, 2020, entered in
the lawsuit styled Ji Li v. Ichiro Sushi, Inc., Case No.
14-cv-10242, in the U.S. District Court for the Southern District
of New York.
The appellate case is captioned as Ji Li, Bin Zhang, De Ping Zhao,
Jianhui Wu, and Kai Zhao, on behalf of themselves and others
similarly situated, v. Ichiro Asian Fusion, Inc., DBA Ichiro
Fusion; Jian Ping Chen; New Ichiro Sushi Inc., DBA Ichiro Sushi
Restaurant; Hui Chen; Juhang Wang, AKA James Wang; Ichiro Sushi,
Inc., DBA Ichiro Sushi Restaurant; Hiu Chen; Vincent Chan; Winson
Chan; Joe Chow; Jame Wang; John Doe; Jane Doe; Ichiro Restaurant,
Inc; Jin Li; and Roberto Hidalgo, Case No. 20-1783, in the United
States Court of Appeals for the Second Circuit.
The lawsuit alleges violation of the Fair Labor Standard Act.
Ichiro Asian Fusion, Inc., operates a family restaurant
business.[BN]
Plaintiffs-Counter-Defendants-Appellants Ji Li, Bin Zhang, De Ping
Zhao, Jianhui Wu, and Kai Zhao, on behalf of themselves and others
similarly situated, are represented by:
Aaron B. Schweitzer, Esq.
TROY LAW PLLC
41-25 Kissena Boulevard
Flushing, NY 11355
Telephone: 718 762-1324
Defendants-Counter-Claimants-Appellees Ichiro Asian Fusion, and
Jian Ping Chen are represented by:
Benjamin B. Xue, Esq.
XUE & ASSOCIATES, P.C.
1 School Street,
Glen Cove, NY 11542
Telephone: 212 219-2275
- and -
David Yan, Esq.
LAW OFFICES OF DAVID YAN
136-20 38th Avenue
Flushing, NY 11354
Telephone: 718-888-7788
Defendants-Appellees New Ichiro Sushi Inc. Juhang Wang, and Hui
Chen are represented by:
David Yan, Esq.
LAW OFFICES OF DAVID YAN
136-20 38th Avenue
Flushing, NY 11354
Telephone: 718-888-7788
Appellee Roberto Hidalgo is represented by:
Peter Hans Cooper, Esq.
CILENTI & COOPER, PLLC
708 3rd Avenue
New York, NY 10017
Telephone: 212 209-3933
INTER-STATE OIL: App. Court Upholds Arbitration Ruling in Garner
----------------------------------------------------------------
In the case, CHRIS GARNER, Plaintiff and Appellant, v. INTER-STATE
OIL COMPANY, Defendant and Respondent, Case No. C088374 (Cal.
App.), the Court of Appeals of California for the Third District,
Sacramento, affirmed the trial court's order compelling
arbitration, as modified.
Chris Garner sued Inter-State Oil, alleging employment claims and
seeking certification of a class action. During Garner's
employment with Inter-State Oil, Garner signed a 2014 arbitration
agreement. There is no dispute that the 2014 agreement superseded
an earlier arbitration agreement.
Garner subsequently filed a class action complaint against
Inter-State Oil, asserting a cause of action for unfair business
practices and alleging that Inter-State Oil engaged in various
illegal employment practices related to wages, breaks, and
reimbursement of business expenses.
Inter-State Oil filed a petition to compel arbitration, asserting
that Garner agreed to arbitrate all claims arising out of his
employment with Inter-State Oil and that Inter-State Oil had asked
Garner to arbitrate his dispute but Garner refused. Garner
acknowledged Inter-State Oil's petition to compel arbitration and
offered to stipulate to arbitration of the class claims, but
Inter-State Oil would agree only to arbitrate Garner's individual
claims. Consequently, Garner opposed the petition to compel
arbitration, asserting that Inter-State Oil breached the
arbitration agreement by refusing to arbitrate the class claims and
that the breach waived its rights under the agreement and excused
Garner's duty to arbitrate.
The trial court granted Inter-State Oil's petition to compel
arbitration only as to Garner's individual claims. It relied on
language in the arbitration agreement stating that Garner waived
his right to participate in class action lawsuits.
Garner appealed the trial court's order granting Inter-State Oil's
motion to compel arbitration, citing Franco v. Athens Disposal Co.,
Inc., an order to arbitrate individual claims is appealable if it
constitutes the "death knell" for class litigation. Garner
contends (1) the plain language of the arbitration agreement gives
him the right to pursue his class claims in arbitration, and (2)
Inter-State Oil waived reliance on the arbitration agreement.
The Appellate Court concludes that the arbitration agreement
provides for arbitration of class claims. When reading the
arbitration agreement in this case as a whole, the language of the
arbitration agreement provides for arbitration of class claims.
Therefore, the parties consented to arbitrate class claims.
There is also no evidence of bad faith or willful misconduct, the
Appellate Court finds. The parties simply had a disagreement over
the meaning of the arbitration agreement, which is not a model of
clarity, and took the disagreement to court. That the trial court
has resolved the disagreement against Inter-State Oil is not
evidence of bad faith or willful misconduct. It found no case
holding that conduct similar to Inter-State Oil's rose to the level
of waiver of the right to arbitrate. Therefore, giving effect to
the public policy favoring arbitration, the Appellate Court
concludes that the arbitration agreement must be enforced.
Finally, Garner asserts Inter-State Oil's conduct showed a lack of
mutuality of consideration that renders the [arbitration agreement]
null and void. The Appellate Court holds that the parties made
mutual, obligating promises to arbitrate. The dispute over the
meaning of the arbitration agreement did not change those mutual,
obligating promises. Adequacy of consideration is in the formation
of the contract, not in its performance. The Appellate Court
therefore rejects Garner's contention that Inter-State Oil's
conduct rendered the arbitration agreement null and void because of
lack of consideration.
Based on the foregoing, the Appellate Court concludes (1) the
arbitration agreement requires arbitration of Garner's class
claims, and (2) Inter-State Oil did not waive reliance on the
arbitration agreement. He will modify the trial court's order to
require arbitration of both individual and class claims, and affirm
the order as modified.
Accordingly, the Appellate Court rules that the trial court's order
compelling arbitration is modified to require arbitration of both
individual and class claims, and, as modified, the trial court
order is affirmed. Garner is awarded his costs on appeal.
A full-text copy of the Appellate Court's June 26, 2020 Opinion is
available at https://bit.ly/2SR7zuK from Leagle.com.
INTERCEPT PHARMACEUTICALS: Bid to Amend Judgment in Liu Suit Denied
-------------------------------------------------------------------
In the case, HOU LIU, et al., Plaintiffs, v. INTERCEPT
PHARMACEUTICALS, INC., et al., Defendants, Case No. 17-cv-7371
(LAK) (S.D. N.Y.), Judge Lewis A. Kaplan of the U.S. District Court
for the Southern District of New York denied the Plaintiffs' motion
to amend the March 26, 2020 judgment of the Court under Rule 59(e)
of the Federal Rules of Civil Procedure or alternatively set it
aside pursuant to Rule 60(b), and for leave to file their Proposed
Second Amended Complaint ("PSAC").
The putative securities class action is born out of 30 reports of
death or serious injury (the Serious Adverse Events, or SAEs) that
occurred over a one-year period in 27 -- out of approximately 3,000
-- users of Ocaliva, the Defendant's drug to treat patients with
the rare liver disease primary biliary cholangitis ('PBC'). These
30 SAEs comprised of 17 deaths and 11 cases of serious liver
injury. Of the 27 patients, known to have suffered a serious
adverse event, 12 of the 13 known late-stage PBC patients received
an incorrect dose.
Pursuant to the Federal Food, Drug, and Cosmetic Act ("FDCA"),
Intercept must submit reports of any adverse events to the FDA.
Intercept complied with the regulation and its pharmacovigilance
department submitted the 30 reports to the FDA. On Sept. 12, 2017,
Intercept issued a Dear Healthcare Provider Letter ("HCP Letter")
warning providers against prescribing late-stage PBC patients with
a dose higher than recommended. Following publication, Intercept's
common stock fell from a close of $113.48 on Sept. 11, 2017 to a
close of $90.75 on Sept. 13, 2017.
On Sept. 21, 2017, the FDA issued a drug safety communication and a
corresponding safety alert summarizing the Communication, on the
SAEs reported by Ocaliva users. The data included in the
Communication came directly from the adverse events reported to the
FDA by Intercept. The FDA warned that Ocaliva was being
incorrectly dosed in some patients with late-stage PBC, resulting
in an increased risk of serious liver injury and death. It
cautioned providers against prescribing higher than the suggested
dose and recommended frequent monitoring of Ocaliva patients.
Intercept's common stock price fell from $98.12 per share on Sept.
20, 2017 to close at $61.59 per share on September 22.
Ocaliva remains on the market.
The Plaintiffs argued that in light of the 27 Ocaliva users who
took an incorrect dose of Ocaliva and/or suffered SAEs, certain of
the Defendants' prior statements were materially false or
misleading in violation of Sections 10(b) and 20(a) of the
Securities Exchange Act of 1934.
The Court concluded that the Plaintiffs had failed to allege
sufficiently a material misstatement or omission. It dismissed the
amended complaint on the additional ground that it did not
sufficiently allege scienter as required by Rule 9(b) and the
PSLRA. On March 26, 2020, the Court granted the Dfendants' motion
to dismiss the amended complaint and directed the Clerk to close
the case.
The matter is now before the Court on the Plaintiffs' motion to
amend the judgment or alternatively set it aside, and for leave to
file their PSAC. They claim that such relief is necessary to
correct the Court's "clear error" of closing the case without
granting them leave to amend, as requested in one sentence at the
conclusion of their opposition to the Defendants' motion to
dismiss.
The Defendants contend that the Plaintiffs have failed to satisfy
their burdens under Rules 59(e) and 60(b) and, in any event, that
the Court should deny leave to amend because the proposed
amendments would be futile.
Judge Kaplan opines that to plead scienter sufficiently, the
complaint must state with particularity facts demonstrating either
that (1) the Defendants had both motive and opportunity to commit
fraud, or (2) constitute strong circumstantial evidence of
conscious misbehavior or recklessness. He finds that the PSAC does
not include new allegations of a motive and opportunity to commit
fraud. Instead, it simply recycles those that the Court had
rejected already. Those allegations do not raise a strong
inference of scienter for the reasons explained in the Court's
prior opinion.
Next, where a complaint does not allege sufficiently allegations of
motive and opportunity, allegations of recklessness must be
correspondingly greater. Allegations of recklessness are judged
against the PSLRA's exacting requirement that the complaint state
with particularity facts that give rise a "strong inference" of
scienter.
Judge Kaplan opines that the PSAC does not plead facts giving rise
to a strong inference of scienter based on the Individual
Defendants' alleged knowledge or access to contradictory
information. First, the Plaintiffs ask the Court to assume,
without any particularized allegations, that any report that
contained information on pruritus contained also information on the
serious adverse events of serious liver injury and death, the
subjects of the alleged fraud. This type of conjecture cannot
survive the PSLRA and Rule 9(b)'s heightened pleading standard.
Second, the Plaintiffs do not identify any reports that allegedly
contained information on pruritus. The Judge therefore cannot
infer knowledge of the reported serious adverse events from the
statements made on pruritus.
Judge Kaplan further opines that the Plaintiffs have not alleged
facts sufficient to show that an inference of scienter is at least
-- or more -- compelling than the non-actionable inference of the
Individual Defendant's negligence in failing to review certain data
prior to speaking. The Plaintiffs' argument as to a possible
negative regulatory response rely on the implausible notion that
the Individual Defendants' alleged failure to review reports of
adverse events and misdosing would insulate Intercept from the risk
that the FDA would not approve Ocaliva for the treatment of other
liver conditions. Moreover, the FDA's actions further undermine
the Plaintiffs' scienter claim. The PSLRA requires that fraud be
pleaded with particularity, in addition to plausibility.
Regarding corporate scienter, Judge Kaplan holds that the new
allegations bring the Plaintiffs closer to alleging scienter
sufficiently. The critical pieces, however, are missing. There
are no allegations connecting the relevant employees to the alleged
misstatements. Without such allegations, the Jduge can therefore
only guess what role those employees played in crafting or
reviewing the challenged statements and whether it would be
otherwise fair to charge the Corporate Defendants with their
knowledge. Accordingly, the Plaintiffs have failed to set forth
allegations sufficient to allege corporate scienter.
Finally, as to the additional allegations of scienter: European
Medical Agency ("EMA") documents and litigation, Judge Kaplan finds
that although the Plaintiffs have added to their allegations, once
again, they have only "detailed the chronology" of Intercept's
challenge of the EMA's decision and have not raised a strong
inference of scienter. Even if true, their position that the
European lawsuit was "frivolous" and an attempt to shield them from
certain documents are insufficient conclusory allegations.
Accordingly, the Plaintiffs allegations concerning the EMA
litigation fail once more, he said.
For the foregoing reasons, Judge Kaplan denied the Plaintiffs'
motion to amend the March 26, 2020 judgment of the Court.
A full-text copy of the Court's Sept. 9, 2020 Memorandum Opinion is
available at https://tinyurl.com/ydce75g5 from Leagle.com.
Richard W. Gonnello -- rgonnello@faruqilaw.com -- Megan M. Sullivan
-- msullivan@faruqilaw.co -- Dillon J. Hagius --
dhagius@faruqilaw.com -- FARUQI & FARUQI, LLP, Attorneys for Lead
Plaintiffs Hou Liu and Amy Fu and Lead Counsel for the Class.
Scott D. Musoff -- scott.musoff@skadden.com -- James R. Carroll --
james.carroll@skadden.com -- Alisha Q. Nanda --
alisha.nanda@skadden.com -- Rene H. DuBois --
rene.dubois@skadden.com -- SKADDEN, ARPS, SLATE, MEAGHER & FLOM
LLP, Attorneys for Defendants Intercept Pharmaceuticals, Inc., Mark
Pruzanski, Sandip S. Kapadia, Richard Kim and Rachel McMinn.
IOWA: Rowe et al. Seek to Certify Class of Registered Nurses
------------------------------------------------------------
In the class action lawsuit captioned as SUSAN L. ROWE, CHRISTINE
M. KLEIBER, TAMMY D. BURDEN, JULIE A. SCHROPP, STACEY L. GOOD,
individually and on behalf of themselves and others similarly
situated, v. KIMBERLY KAY REYNOLDS, in her official capacity as
Governor State of Iowa, JAMES M. KURTENBACH, in his official
capacity with Iowa Department of Administrative Services; and the
STATE OF IOWA, Case No. 4:19-cv-00256-JAJ-SBJ (S.D. Iowa), the
Plaintiffs Susan L. Rowe, Christine M. Kleiber, Tammy D. Burden,
Julie A. Schropp and Stacey L. Good, individually and on behalf of
all other similarly situated Registered Nurses, move the Court
under the Fair Labor Standards Act for an Order:
1. conditionally certifying this case as a collective action;
2. authorizing the Plaintiffs to mail notice of this case to:
"all current and former Registered Nurses of the State of
Iowa in Job Classifications 02020 and 82020, at any time
during the period July 1, 2017 to the present, plus
periods of equitable tolling, as similarly situated
Registered Nurses"; and
3. directing the Defendants to provide the Plaintiffs'
counsel with a computer-readable data file containing the
additional names, last known addresses, dates of
employment, location of employment, date of birth (for
address verification purposes), and telephone numbers for
each such current and former Registered Nurses, for the
following proposed Plaintiff classes: State of Iowa Job
Classifications 02020 and 82020.
A copy of Plaintiffs' Motion to Conditionally Certify Collective
Class is available from PacerMonitor.com at https://bit.ly/3mnLr8N
at no extra charge.[CC]
The Plaintiffs are represented by:
Bruce H. Stoltze, Esq.
John Q. Stoltze, Esq.
STOLTZE & STOLTZE, PLC
300 Walnut Street, Suite 260
Des Moines, IA 50309
Telephone: 515-244-1473
Facsimile: 515-244-3930
E-mail: bruce.stoltze@stoltzelaw.com
bj.stoltze@stoltzelaw.com
john.stoltze@stoltzelaw.com
The Defendants are represented by:
Molly M. Weber, Esq.
Ryan Sheahan, Esq.
ASSISTANT ATTORNEY GENERAL
IOWA DEPARTMENT OF JUSTICE
Hoover State Office Building
1305 E. Walnut Street
Des Moines, Iowa 50319
E-mail: ryan.sheahan@ag.iowa.gov
molly.weber@ag.iowa.gov
J.C. CHRISTENSEN: Final Approval of Class Settlement Sought
-----------------------------------------------------------
In the class action lawsuit captioned as EILEEN GREENE, on behalf
of herself and all others similarly situated, v. J.C. CHRISTENSEN &
ASSOCIATES, INC. and LVNV FUNDING LLC, Case No. 2:17-cv-01700-SCM
(D.N.J.), the Parties will move Court for an order granting final
approval of the within proposed class settlement and related
relief.
JC Christensen operates as debt recovery agents. LVNV Funding is a
debt collection agency.[CC]
Attorney for Plaintiff, on behalf of herself and all others
similarly situated, is:
Lawrence C. Hersh, Esq.
ATTORNEY AT LAW
17 Sylvan Street, Suite 102B
Rutherford, NJ 07070
Telephone: (201) 507-6300
JELLY BELLY: Court Stays Hoffman TCPA Suit Pending Ruling in AAPC
-----------------------------------------------------------------
In the case, HOWARD HOFFMAN, as an individual and on behalf of all
others similarly situated, Plaintiff, v. JELLY BELLY CANDY COMPANY,
INC., Defendant, Case No. 2:19-cv-01935-JAM-DB (E.D. Cal.), Judge
John A. Mendez of the U.S. District Court for the Eastern District
of California granted the Defendant's Motion to Stay.
The case at hand involves a putative class action against the
Defendant, alleging it violated the Telephone Consumer Protection
Act ("TCPA"), in transmitting unsolicited text messages using an
Automatic Telephone Dialing System ("ATDS"). Specifically, the
Plaintiff contends that on June 8, 2019, and June 18, 2019, the
Defendant sent telemarketing text messages to his cellular phone.
Each of the Defendant's messages contained information meant to
promote the purchase of its goods. Plaintiff never provided his
express, written consent to receive the Defendant's promotional
text messages.
Since the filing of the Plaintiff's complaint, the Supreme Court
has granted certiorari in Barr v. Am. Ass'n of Political
Consultants ("AAPC"). In AAPC, the Supreme Court is being asked to
determine whether the government-debt exception to the TCPA's
automated-call restriction is unconstitutional. And if so, whether
the proper remedy is to sever the exception from the remainder of
the statute.
In addition, pending before the Supreme Court is a petition for
certiorari in Facebook, Inc. v. Duguid, Appeal No. 19-511. In that
case, the petitioner is asking the Supreme Court to resolve the
following issues: (1) whether the TCPA's prohibition on calls made
using an ATDS is unconstitutional and, if so, whether the proper
remedy is to broaden the prohibition; and (2) whether the
definition of ATDS in the TCPA encompasses any device that can
"store" and "automatically dial" telephone numbers, even if the
device does not use a random or sequential number generator. To
date, the Supreme Court has not decided whether it will grant
certiorari.
As a result of these pending cases and the issues raised in them,
the Defendant now moves to stay these proceedings until the Supreme
Court has decided on the AAPC case.
Judge Mendez holds that given the significant split that has
developed among the circuits, the Supreme Court may not remain
silent for much longer and may grant certiorari in the Duguid case,
or else, its decision in the AAPC case may obviate the need to do
so. In any event, the definitional problem of what constitutes an
ATDS is relevant in the instant case, as the Plaintiff alleges the
Defendant used an ATDS to send him text messages, but the Defendant
contends it did not. Accordingly, even if certiorari remains
pending or is denied in the Duguid case, Judge Mendez finds it is
prudent and more efficient to wait to see whether the AAPC case
provides more clarity on this issue.
Waiting for the Supreme Court's decision in the AAPC case, and
possibly also the Duguid case, will allow the District Court to
adjudicate the issues before it with far greater certainty. To do
otherwise would be a waste of judicial resources and a waste of the
parties' time and energy. For this reason, a stay awaiting clarity
on the validity of the TCPA in general, and the definition of an
ATDS more specifically, would allow for a more orderly disposition
of this motion.
For the reasons he set forth, Judge Mendez granted the Defendant's
Motion to Stay pending resolution by the U.S. Supreme Court of the
AAPC case. The parties are ordered to file a joint status
statement within ten days after the Supreme Court's decision in
AAPC becomes final advising the Court as to how they wish to
proceed in the case.
A full-text copy of the District Court's June 26, 2020 Order is
available at https://bit.ly/3kcqGM5 from Leagle.com.
JONES LANG: North Seeks Unpaid Overtime Wages, Reimbursements
-------------------------------------------------------------
Christopher North, an individual, on behalf of himself and others
similarly situated, Plaintiff, v. Jones Lang Lasalle Americas, Inc.
and Does 1 through 50, inclusive, Defendants, Case No.
37-2020-00027555, (Cal. Super., August 6, 2020), seeks redress for
failure to pay minimum wages and overtime, failure to provide
lawful meal and rest periods, failure to pay all wages due upon
separation, reimbursements of all business-related expenses and
failure to furnish timely and accurate itemized wage statements
under California Labor Code and relevant orders of the Industrial
Welfare Commission (IWC), and the California Business and
Professions Code.
Jones Lang LaSalle Americas is a commercial real estate service
where North was employed at its facility in San Diego. [BN]
Plaintiff is represented by:
Emil Davtyan, Esq.
DAVTYAN LAW FIRM INC.
880 E Broadway
Glendale, CA 91205
Telephone: (818) 875-2008
Email: emil@davtyanlaw.com
- and -
David Harmik Yeremian, Esq.
Natalie Haritoonian, Esq.
DAVID YEREMIAN AND ASSOCIATES
535 N. Brand Blvd., Suite 705
Glendale, CA 91203
Phone: (818) 918-3876
Email: david@yeremianlaw.com
natalie@yeremianlaw.com
JPMORGAN CHASE: Prukala Class Suit Dismissed with Prejudice
-----------------------------------------------------------
In the case, CHRISTINA PRUKALA, Plaintiff, v. CHASE BANK, N.A.,
Defendant, Case No. 3:19-CV-1791 (M.D. Pa.), Judge Robert D.
Mariani of the U.S. District Court for the Middle District of
Pennsylvania granted the Defendant's Motion to Dismiss Plaintiff's
Amended Complaint with prejudice.
On Sept. 9, 2019, Plaintiff Prukala filed a putative class action
complaint in the Court of Common Pleas of Lackawanna County against
Defendant JPMorgan Chase Bank, N.A., improperly named as "Chase
Bank", for alleged violations of Pennsylvania's Fair Credit
Extension Uniformity Act ("FCEUA") and the federal Fair Debt
Collection Practices Act ("FDCPA"). On Oct. 16, 2019, Defendant
Chase properly removed the action to the Court.
On Oct. 21, 2019, the Defendant filed a Motion to Dismiss
Plaintiff's complaint. On Nov. 4, 2019, the Plaintiff amended her
complaint eliminating the FDCPA claims, but still alleging the
Defendant violated the FCEUA when the Defendant reported her
consumer credit report as delinquent, with derogatory information
therein. The Plaintiff seeks relief under Pennsylvania's Unfair
Trade Practices and Consumer Protection Law ("UTPCPL"). She seeks
monetary damages, punitive damages, and injunctive relief on behalf
of herself and a putative class.
Plaintiff Prukala is a citizen and resident of the Commonwealth of
Pennsylvania. Defendant Chase is a corporate entity engaged in,
among other enterprises, collection of allegedly overdue credit
accounts. Defendants John Does 1-10 are unknown individuals or
entities who played a substantial role in the commission of the
acts. Defendants X, Y, and Z Corporations are unknown entities who
also played a substantial role in the commission of the acts.
The Plaintiff possesses consumer debts, used for personal,
household or family purposes, that the Defendant was seeking to
collect. One of her consumer accounts was reported as delinquent
and derogatory information was placed on her credit report by the
Defendant. When the Plaintiff discovered the derogatory
information on her credit report, she sent the Defendant letters
both disputing the high balance of each account and requesting
copies of the original contracts.
The Defendant updated the Credit Reporting Agencies ("CRAs") on a
regular basis, which is reflected on the Plaintiff's consumer
credit report. It "constructively, if not actively" updated the
information on the Plaintiff's consumer report without either
reinvestigating said derogatory information or notating on the
report that the account was disputed.
The Defendant had actual and/or constructive notice that the
Plaintiff disputed the debts as she sent letters to the Defendant
indicating her dispute and requesting an accounting of the debts
and the original contracts. The Plaintiff never received a
response from the Defendant to her letters. The derogatory
information on the consumer credit report negatively reflects upon
the Plaintiff, the Plaintiff's credit repayment history, the
Plaintiff's financial responsibility as a debtor and the
Plaintiff's credit worthiness.
As a result, the Plaintiff suffered repeated disruption of to
pursuit of any business affairs affected by the false, unverified
information on her credit report as well as the emotional distress
suffered from being the target of the Defendant's collection
activity. The Plaintiff's damages include lost time in dealing
with said violations, including but not limited to loss of credit
opportunities and business standing in the community, and in
seeking and contacting legal counsel for the purpose of exploring
and commencing the litigation.
On Dec. 5, 2019, the Defendant again filed a Motion to Dismiss the
Plaintiff's Amended Complaint with prejudice, which is now pending
before the Court.
Viewing all facts in the light most favorable to the Plaintiff and
drawing all reasonable inferences in the Plaintiff's favor, Judge
Mariani finds no allegation of causation or justifiable reliance in
the Amended Complaint. Even if the disrupted pursuit of business
affairs was an ascertainable loss, the Plaintiff does not allege
how the Defendant's actions caused such a disruption. The
Plaintiff pleads that the Defendant caused derogatory information
to be placed on her consumer credit report despite sending the
Defendant a dispute letter. However, she does not explain what the
derogatory information is or how that derogatory information
impacted her business pursuits. Nor does the Plaintiff allege
reliance, justifiable or not, on any actions taken or statements
made by the Defendant.
For these reasons, the Plaintiff's Amended Complaint does not
allege causation or justifiable reliance as is required by the
UTPCPL and FCEUA; and therefore, fails to state a claim upon which
relief may be granted, rules the Court.
The Plaintiff does not allege facts sufficient to state a claim
upon which relief can be granted in her Amended Complaint, nor does
she request leave to amend the complaint. Judge Mariani deems the
Plaintiff had the opportunity to amend her Complaint and cure its
deficiencies but did not do so. No further leave will be granted.
Without alleging justifiable reliance on the Defendant's prohibited
statements or actions and without alleging an ascertainable loss as
a result of that reliance, the Plaintiff's complaint does not state
a claim upon which relief can be granted under the UTPCPL and the
FCEUA. The Plaintiff was on notice of these defects after the
Defendant's initial Motion to Dismiss, but saw fit not to address
them. The complaint must be dismissed without leave to amend.
Therefore, for the reasons set forth in his Sept. 4, 2020
Memorandum Opinion, a full-text copy of which is available at
https://tinyurl.com/y4kksrbq from Leagle.com, Judge Mariani granted
the Defendant's Motion to Dismiss with prejudice. A separate Order
follows.
KEITH GORSUCH: Court Denies Motion to Certify Class Action
----------------------------------------------------------
In class action lawsuit captioned as CLIFTON B. HENNINGTON, v.
KEITH GORSUCH, ET AL., Case No. 6:20-cv-00302-JDK-KNM (E.D. Tex.),
the Hon. Judge Jeremy D. Kernodle entered an order:
1. adopting the Report and Recommendation of Magistrate Judge
K. Nicole Mitchell concluding that Plaintiff's motion to
certify class action should be denied; and
2. denying the Plaintiff's motion to certify class action.
A copy of the Court's Order denying motion to certify class action
is available from PacerMonitor.com at https://bit.ly/2FVedNL at no
extra charge.[CC]
KOCH INDUSTRIES: 401(k) Plan Members Slam Fund Mismanagement
------------------------------------------------------------
David Kinder and Tracy Scott, individually and on behalf of all
others similarly situated and on behalf of the Georgia-Pacific LLC
Hourly 401(k) Plan, the Georgia-Pacific LLC 401(k) Retirement
Savings Plan, the Koch Industries Inc. Employees' Savings Plan and
the Flint Hills Resources Chemicals Salary Deferral Plan
Plaintiffs, v. Koch Industries, Inc., Koch Business Solutions, LP,
the Koch Benefits Administrative Committee and John Does 1-30,
Defendants, Case No. 20-cv-02973 (N.D. Ga., July 16, 2020), seek
equitable and injunctive relief for breach of the fiduciary duties
of prudence and loyalty and for violation the Employee Retirement
Income Security Act of 1974.
Koch Companies Defined Contribution Master Trust is the single
master trust governing several retirement plans for employees of
Koch affiliated companies, including the Georgia-Pacific Hourly
Plan, the Georgia-Pacific Savings Plan, the Koch Plan and the Flint
Hills Plan. The Georgia-Pacific Hourly Plan covers eligible
hourly-paid employees or former employees of Georgia-Pacific LLC or
its affiliates. The Georgia-Pacific Savings Plan covers eligible
employees and former employees of Georgia-Pacific or its
affiliates. The Koch Plan covers eligible employees or former
employees of Koch Industries or other companies affiliated with
Koch Industries. The Flint Hills Plan covers certain groups of
union employees or former employees of Flint Hills Resources, LLC.
Georgia-Pacific and Flint Hills Resources are wholly-owned
subsidiaries of Koch Industries. Defendants allegedly caused the
Plans' participants to pay excessive recordkeeping expenses and
failed to negotiate for lower per-participant recordkeeping fees.
[BN]
Fuentes is represented by:
John T. Sparks, Esq.
AUSTIN & SPARKS, P.C.
2974 Lookout Place, N.E., Suite 200
Atlanta, GA 30305
Tel: (404) 869-0100
Fax: (404) 869-200
Email: jsparks@austinsparks.com
- and -
Paul J. Lukas, Esq.
Kai H. Richter, Esq.
Brock J. Specht, Esq.
Grace I. Chanin, Esq.
NICHOLS KASTER, PLLP
4600 IDS Center, 80 South 8th Street
Minneapolis, MN 55402
Telephone: (612) 256-3200
Facsimile: (612) 338-4878
Email: plukas@nka.com
krichter@nka.com
bspecht@nka.com
gchanin@nka.com
- and -
Josh Sanford, 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
LEXISNEXIS RISK: Court Certifies Class & Subclass in Gaston Suit
----------------------------------------------------------------
In the case, DELORIS GASTON AND LEONARD GASTON, Plaintiffs, v.
LEXISNEXIS RISK SOLUTIONS, INC. AND POLICEREPORTS.US, LLC,
Defendants, Civil Action No. 5:16-CV-00009-KDB-DCK (W.D. N.C.),
Judge Kenneth D. Bell of the U.S. District Cour for the Western
District of North Carolina, Statesville Division, (i) granted in
part and denied in part the Plaintiff's Motion to Certify Class,
(ii) denied as moot Plaintiffs' Motion for Appointment of Interim
Co-Lead and Liaison counsel, (iii) granted in part and denied in
part the Plaintiffs Motion for Summary Judgment; (iii) denied the
Defendants' summary judgment motion; and (iv) denied the
Defendants' Motion to Stay a ruling on the Plaintiffs' Motion for
Summary Judgment.
Plaintiffs Leonard and Delores Gaston are a married couple who live
in Charlotte, North Carolina. Defendant LexisNexis is a Georgia
corporation that provides data and information to various
professionals and industries around the world. Defendant
PoliceReports.US, LLC, ("PRUS") is a North Carolina corporation
that is an online distributor of vehicle accident/crash reports
throughout the United States, including North Carolina. PRUS was
acquired by LexisNexis in 2014.
In 2012 and 2015, the Gastons were involved in car accidents in
Charlotte. After each accident, the responding CMPD officer
prepared a Crash Report that included personal information,
including their name, address and driver's license number.
Further, the Crash Report specifically indicated that the address
provided was the same as appears on their driver's license. In the
action, the Gastons allege on their own behalf and as
representatives of several proposed putative classes that the
Defendants violated the DPPA by unlawfully using and disclosing
their personal driver information in the Crash Reports without
their consent.
CMPD and other law enforcement officers in North Carolina
theoretically can collect information to create a Crash Report
through various means. Crash Reports can be prepared using an
electronic crash reporting software application known as Report
Beam, which interacts with a CMPD officer's Computer Automated
Dispatch ("CAD") system. CAD has the ability to interface with a
variety of third party databases, including the National Crime
Information Center ("NCIC") and the North Carolina Division of
Criminal Information ("DCI"), and return available information
relating to the driver's license number or license tag, such as the
driver's name, address, date of birth and insurance information.
For North Carolina driver's licenses and tags, officers can
pre-populate the driver information in a crash report form with the
information returned by the CAD-connected databases by using the
F11 function in Report Beam.
The Plaintiffs assert that in their accidents and almost all of the
accidents involving other putative North Carolina class members,
the investigating officers electronically accessed their personal
information, including driver identification numbers, names, and
addresses, from information maintained by the DMV and then
integrated that personal information obtained from the DMV into the
Crash Report using electronic crash reporting software. In support
of the claim, they offer an affidavit of Officer Nicholas Bush of
the CMPD. Officer Bush testified that in the field he created
thousands of crash reports using the Report Beam crash reporting
software. He further testified that he taught other officers at
the CMPD how to use the Report Beam crash reporting software,
including the use of the F11 function to speed up the crash
reporting process.
Accordingly, it appears (and the parties do not dispute) that
because police officers collectively prepare thousands of Crash
Reports and the reports do not themselves indicate the source of
the personal information in the report, the source of the personal
information in any particular Crash Report is, as a practical
matter, unknown and generally unknowable to an absolute certainty
very shortly after the accident. However, it also appears that the
Crash Reports were prepared using computer software and information
from the DMV databases in at least a very substantial number of
cases -- and particularly so for at least for one CMPD officer.
During the relevant period, PRUS entered into contracts to make
CMPD's Crash Reports available online. In those agreements with
CMPD, PRUS is authorized to provide online access to Crash Reports
as well as a "bulk/subscription download capability" to customers
on a set price schedule. Also, while those contracts do not
mention the DPPA nor specifically limit the manner in which the
reports can be provided to the public (with the exception of the
prices that PRUS can charge for access to the reports), the
contracts do not provide a blanket authority to allow access to the
Crash Reports without regard to Federal law. On the contrary, the
contracts require that PRUS comply with all applicable federal,
state and local laws and regulations and further include a specific
representation that the Company will comply in all material
respects with all applicable federal, state and local laws,
regulations and guidelines in providing the Services.
With respect to the use made of the Plaintiffs' information, the
Gastons testified that they received numerous solicitations by both
telephone and mail after the crash in February 2012, but the
identification of those solicitations is unknown or disputed. As
to the putative class members more generally, the parties also
dispute the extent to which the Defendants' monthly subscription
customers viewed and used their personal information for marketing
and soliciting purposes, but there is substantial evidence that
numerous monthly subscription customers used the personal
information in the Crash Reports for the purpose of marketing and
solicitation.
Beyond CMPD and North Carolina, the Defendants resell crash reports
for numerous law enforcement agencies around the nation. The
Plaintiffs allege that law enforcement agencies in the state of New
York and elsewhere similarly use software to create accident crash
reports. However, they have not offered any specific testimony of
the manner and prevalence of the use of the software outside of
CMPD.
With respect to class claims, the Plaintiffs seek to certify and
represent a nationwide class of the Plaintiffs seeking declaratory
and injunctive relief, pursuant to the provisions of Fed. R. Civ.
P. 23(a), 23(b)(1)(A), 23(b)(2) and Rule 23(b)(3), defined as:
a. Class 1 - Nationwide: All persons in the United States
who, within four (4) years prior to the date of January 12, 2016
through the final disposition of the or any related actions, had
their personal information (as defined by the DPPA, effective
during the Class Period) contained in motor vehicle records of
their State Motor Vehicle Departments obtained, used, disclosed,
re-disclosed, and/or resold by the named Defendants, for purposes
not permitted by the DPPA, or without establishing a permissible
purpose required by the DPPA, without their express consent.
b. Subclass 1 - North Carolina and New York Vehicle Owners
and Drivers: All North Carolina and New York driver's license
holders and North Carolina and New York vehicle owners who within
four years prior to the date of Jan. 12, 2016, through the final
disposition of this or any related actions, had their personal
information (as defined by the DPPA, effective during the Class
Period) contained in motor vehicle records of the North Carolina or
New York Motor Vehicle Departments obtained, used, disclosed,
re-disclosed, and/or resold by the named Defendants, for purposes
not permitted by the DPPA, or without establishing a permissible
purpose required by the DPPA, without their express consent.
c. Subclass 2 - All Vehicle Owners and Drivers CMPD crash
reports: All driver's license holders and owners who within four
years prior to the date of Jan. 12, 2016, through the final
disposition of this or any related actions, had their personal
information (as defined by the DPPA, effective during the Class
Period) contained in motor vehicle records of the North Carolina
Department of Motor Vehicles obtained, used, disclosed,
re-disclosed, and/or resold by the named Defendants, for purposes
not permitted by the DPPA, or without establishing a permissible
purpose required by the DPPA, without their express consent.
The Plaintiffs seek the following class-wide relief under the DPPA.
First, they seek a judgment that the Defendants (1) breached the
DPPA by disclosing or making available their and class members'
personal information to third-parties that did not have a
permissible use to view or obtain such information; and (ii)
violated 18 U.S.C. Section 2721(c) by failing to keep records of
the persons or entities who obtained or viewed the information and
the permissible use of each such disclosure. They allege they
suffered actual damages and claim they and the members of the class
are entitled to at least minimum statutory damages of $2,500 for
the impermissible disclosures to third parties, plus injunctive
relief, punitive damages, and attorneys' fees.
Regarding the Class Certification, Judge Bell finds that each of
the Rule 23(a) requirements has been met. He then determines
which, if any, of the types of classes described in Rule 23(b) are
appropriate in the action. He finds that an "injunctive class"
limited to CMPD accident reports should be certified, but declines
to certify a class under Rule 23(b)(1), which is inapplicable to
the action, or a money damages class under Rule 23(b)(3) because he
finds it is not a superior procedure given the Defendants' right to
challenge damages individually based on whether a particular
person's Crash Report was disclosed for an improper purpose under
the DPPA.
Accordingly, the Judge certifies an "injunctive relief" class and
subclass as follows:
a. Class - North Carolina residents whose personal
information (as defined by the DPPA) appears on a North Carolina
form DMV-349 CMPD vehicle accident report that was created between
Jan. 12, 2012 and Sept. 1, 2020 and disclosed by a Defendant to a
third party without any contemporaneous record of a purpose
permitted by the DPPA. The class does not include any person who
gave consent to the disclosure of their personal information by a
Defendant.
b. Subclass — All members of the class whose related
accident report indicates that their address in the report is the
same as on their driver's license.
Further, the Judge appoints the Plaintiffs' counsel as the class
counsel for the class under Rule 23(g). In doing so, he finds that
the Plaintiffs' counsel will fairly and adequately represent the
interests of the class, a finding which the Defendants do not
challenge.
Finally, the Plaintiffs seek certification under Rule 23(b)(3).
Weighing the benefits and challenges of certifying a class action
under the circumstances, the Judge finds that a class action is not
a superior framework in which to adjudicate the Plaintiffs' money
damages claims because of the Defendants' intention to seek an
individualized assessment of the right to recover such damages.
Therefore, he declines to certify a class action under Rule
23(b)(3).
Turning to the Motions for Summary Judgment, Judge Bell finds that
the Defendants' conduct is not authorized by the governmental
function purpose permitted by the DPPA nor are they entitled to
qualified immunity from liability. Also, with respect to their
more specific arguments related to the purpose for which the
Plaintiffs' personal information was used, the Judge finds that
they are not entitled to summary judgment because there are
disputed factual issues related to whether the Plaintiffs'
information was improperly disclosed. For the same reason, he
denies the Plaintiffs' cross motion for summary judgment as to
their own claim for liquidated damages. Also, he denies the
Plaintiffs' motion for summary judgment based on the alleged
violation of 18 U.S.C. Section 2721(c) because there is no private
right of action to assert the violation.
The Judge, however, grants summary judgment on the Plaintiffs'
claims for declaratory and injunctive relief with respect to the
Rule 23(b)(2) subclass of those class members whose accident
reports indicate that the address in the report matches the address
on their driver's license. He finds that the Defendants have
violated the DPPA as a matter of law because the Crash Reports
related to that subclass are "motor vehicle records" as discussed
earlier and Plaintiffs are entitled to summary judgment because,
inter alia, it is undisputed that the Defendants make no effort to
limit the disclosure of Crash Reports for purposes permitted by the
DPPA, even though all records may not have been disclosed and some
records may have been disclosed for permissible purposes.
Accordingly, he enjoins the Defendants from continuing any conduct
that violates the DPPA.
The remaining motions before the Court are the Plaintiffs' Motion
to Appoint Interim Counsel and the Defendants' Motion to Stay
consideration of the Plaintiffs' Motion for Summary Judgment. Both
of these motions will be denied as moot. Judge Bell is now
certifying a class under Rule 23 (b)(2), appointing the Plaintiffs'
counsel as the class counsel and denying certification of the
Plaintiffs' other proposed classes; therefore, appointment of
interim counsel is unnecessary. Similarly, because the Judge is
declining to certify a class under Rule 23(b)(3), the only type of
class which provides potential class members the right to "opt-out"
which was the root of the Defendants' concern, and the Court has in
any event entered summary judgment for the Plaintiffs' subclass,
there is no basis for him to further consider the Defendants'
requested stay.
Based on the foregoing, Judge Bell granted in part and denied in
part the Plaintiff's Motion to Certify Class as described. He
appointed the Plaintiffs' counsel, Larry S. McDevitt, David M.
Wilkerson, Eugene C. Covington, Jr. and Chris Cogdill as the class
counsel for the certified class pursuant to Rule 23(g).
The Judge granted in part and denied in part the Plaintiffs' Motion
for Summary Judgment as described.
The Defendants and their officers, agents, servants, employees, and
attorneys and those acting in active concert with them are enjoined
from violating the DPPA as described.
The Judge denied the Defendants' Motion for Summary Judgment.
He denied as moot the (i) Plaintiffs' Motion for Appointment of
Interim Co-Lead and Liaison counsel; and (ii) the Defendants'
Motion to Stay a ruling on the Plaintiffs' Motion for Summary
Judgment.
The case will proceed to trial on the merits on the Plaintiffs'
claim for statutory liquidated damages and the full certified
class' claim for injunctive relief in the absence of a voluntary
resolution of the dispute among the parties.
A full-text copy of the Court's Sept. 2, 2020 Order is available at
https://tinyurl.com/yxlctzm2 from Leagle.com.
LIDDLE & LIDDLE: Perchlak Suit Seeks to Certify FDCPA Class
-----------------------------------------------------------
In the class action lawsuit captioned as Robert Perchlak, on behalf
of himself and all others similarly situated, v. Liddle & Liddle, A
Professional Corporation, Case No. 2:19-cv-09461-JFW-AFM (C.D.
Cal.), the Plaintiff moves the Court to certify his and his counsel
as representatives of a class of individuals with claims against
the Defendant under the Fair Debt Collection Practices Act, defined
as follows:
"all persons in California, to whom Defendant sent an initial
written communication based upon the Template from November
4, 2018 to the present in connection with the collection of a
consumer debt."
The Defendant engages in the collection of debts from consumers,
such as Plaintiff. The Defendant sent Plaintiff a letter dated
August 7, 2019 containing a Three-Day Notice to pay rent or quit.
This letter is based on a Template that Defendant uses to send
similar letters to other consumers, says the complaint.
A copy of the Plaintiff's motion for class certification is
available from PacerMonitor.com at https://bit.ly/33PUaZb at no
extra charge.[CC]
The Plaintiff is represented by:
Russell S. Thompson, IV, Esq.
THOMPSON CONSUMER LAW GROUP, PLLC
5235 E. Southern Ave., D106-618
Mesa, AZ 85206
Telephone: (602) 388-8898
Facsimile: (866) 317-2674
E-mail: rthompson@ThompsonConsumerLaw.com
LIDL US LLC: Duffy Slams Mislabeling on Vanilla-Flavored Ice Cream
------------------------------------------------------------------
Deborah Duffy, individually and on behalf of all others similarly
situated, Plaintiff, v. Lidl US, LLC, Defendant, Case No.
20-cv-03578 (E.D. N.Y., August 8, 2020), seeks injunctive relief
resulting from negligence, unjust enrichment and breach of contract
and for violation of the Consumer Protection from Deceptive acts of
New York business laws.
Lidl US, LLC manufactures, distributes, markets, labels and sells
vanilla bean ice cream under its "Lidl" brand. Duffy disputes
Lidl's claim that their ice cream are flavored only with vanilla
and that they contain non-vanilla flavors which imitate and extend
vanilla but are not derived from the vanilla bean. [BN]
Plaintiff is represented by:
Spencer Sheehan, Esq.
SHEEHAN & ASSOCIATES, P.C.
505 Northern Blvd., Ste. 311
Great Neck, NY 11021-5101
Tel: (516) 303-0552
Facsimile: (516) 234-7800
Email: spencer@spencersheehan.com
LILITH GAMES: Court Authorizes Email Service in Coy Class Suit
--------------------------------------------------------------
In the case, KEITH COY, Plaintiff, v. LILITH GAMES (SHANGHAI) CO.,
LTD., et al., Defendants, Case No. 19-cv-08192-JD (N.D. Cal.),
Judge James Donato of the U.S. District Court for the Northern
District of California authorized the email service as described as
an alternate method of serving the two foreign Defendants in the
case, pursuant to Federal Rule of Civil Procedure 4(f)(3).
In the putative consumer class action concerning the "Rise of
Kingdoms" mobile videogame and certain "micro-transactions" within
the game, the Plaintiff alleges that the Defendants engaged in
deceptive and misleading conduct. The Plaintiff requests
permission to serve the complaint on Defendants Lilith Games
(Shanghai) Co., Ltd. and Shanghai Lilith Network Technology Co.,
Ltd. through alternative means pursuant to Federal Rule of Civil
Procedure 4(f)(3).
The Defendants, which are Chinese corporations headquartered in
Shanghai, China, have not appeared in the action or filed any
response to the Plaintiff's request. The Plaintiff proposes to
effectuate service by personally serving an attorney in Dallas,
Texas, who previously represented the Defendants in two other
lawsuits in the District, and by email service to four separate
email accounts related to the Defendants.
Judge Donato finds that Coy appears to have expended a significant
amount of time and effort in trying to serve the Defendants. Most
significant are his efforts to reach out to Alisa Zheng. Before
filing the complaint, Coy's counsel sent a "Notice of Intent to
File Class Action Lawsuit" to the Defendants pursuant to California
Civil Code Section 1782, putting the Defendants on notice that a
lawsuit would be filed in 30 days' time if they did not cease the
unlawful business practices as described in the letter.
It appears that Alisa Zheng, writing as "the Legal Counsel of
Lilith Games," responded to that letter by email, attaching a copy
of the response that was signed by her on Nov. 14, 2019. The
response states that they have received the complaint about the
'account sharing' in their game product 'Rise of Kingdoms,'
attempts to address the alleged violations of Lilith in the letter,
and directs the Plaintiff to contact their service group through
in-game chat or sending email to service@lilithgames.com in the
event he has more questions or suggestions. It appears the email
response was sent from the address "alisazheng@lilithgames.com,"
copying the addresses "jixiaojun@lilith.sh" and "hurui@lilith.sh."
The Plaintiff's submissions on the motion show his counsel has
emailed these three email addresses multiple times, inquiring
whether Ms. Zheng is able to accept service of the complaint on
behalf of her client, attaching a copy of the summons and
complaint, and proposing to meet and confer on a joint case
management conference statement. The Plaintiff has not received a
single response to these emails.
Coy's counsel has also corresponded with, and personally served,
attorney Bart Rankin, who previously served as counsel for the
Defendants in two lawsuits in the Northern District of California.
Coy makes no argument that those two lawsuits were related to the
one in subject matter. He further appears to have sent via UPS
Worldwide Saver (Express) a copy of the summons, complaint and
other documents to defendants at the same physical address used for
the pre-filing notice letter. In addition, he retained Rick
Hamilton, the Director of International Services at ABC Legal
Services, to move forward with service pursuant to the Hague
Convention.
All of this establishes that the district court's intervention on
the issue of service is appropriate in the case. The question is
what method of alternate service to order. To start, Judge Donato
denies the Dlaintiff's request for substitute service on attorney
Bart Rankin. Attorney Rankin informed the Plaintiff's counsel that
he was not retained or authorized by the Defendant to accept
service of process for the present lawsuit. Attorney Rankin has no
demonstrated ties to the Defendants for the case.
Alisa Zheng, who wrote to the Plaintiff's counsel is a much more
appropriate person for alternate service. The Plaintiff has
proposed to serve her by email. But he, while alluding to China's
status as a signatory to the Hague Convention, has not fully
addressed how the proposed email service is likely to be viewed
under the Convention. Judge Donato has found in other contexts,
however, that the Hague Convention is not a bar to alternate
methods of service.
He consequently authorizes alternative service of process by email
to (1) "alisazheng@lilithgames.com"; (2) the two email addresses
Ms. Zheng copied, i.e., "jixiaojun@lilith.sh" and
"hurui@lilith.sh"; and (3) the email address to which she referred
the Plaintiff, "service@lilithgames.com." To be clear, the
alternate email service authorization is subject to a motion to
quash service in the event the Defendants have good cause to
contend that email service in China is prohibited by the Hague
Convention or any other international agreement.
Based on the foregoing, Judge Donato authorized the email service
as described as an alternate method of serving the two foreign
Defendants in the case, pursuant to Federal Rule of Civil Procedure
4(f)(3). The emails the Plaintiff previously sent were not
authorized by Court order and cannot be authorized retroactively.
The Plaintiff is consequently directed to newly serve the
Defendants consistent with the Order and to file a proof of service
on the docket. The Order should also be served on the Defendants
at those same email addresses.
The case management conference that was set for Sept. 10, 2020, is
vacated and will be re-set once the Defendants have appeared. The
case is administratively closed in the interim.
A full-text copy of the Court's Sept. 9, 2020 Order is available at
https://tinyurl.com/y97rqa9g from Leagle.com.
LVNV FUNDING LLC: Shaughnessy Disputes False Credit Report
----------------------------------------------------------
Grady Shaughnessy, individually and on behalf of all others
similarly situated, Plaintiff, v. LVNV Funding, LLC and Resurgent
Capital Services, LP, Defendants, Case No. 37-2020-00028067 (Cal.
Super., August 11, 2020), seeks damages and declaratory relief
under the California Consumer Credit Reporting Agencies Act.
LVNV Funding and Resurgent Capital Services are debt collectors who
were assigned to collect an obligation owed by Shaughnessy that
went default. Shaughnessy entered into a written agreement that
required him to pay a total settlement amount of $1,250.00 in a
one-time payment upon a debt. In exchange, LVNV and Resurgent would
waive and release him from any further amounts and to discharge him
from any further claim. On or about October 31, 2019, Shaughnessy
paid the full amount agreed upon.
However, on or about June 29, 2020, Shaughnessy discovered that
LVNV Funding and Resurgent had updated its reporting of said
account on April 1, 2020 that the account is still "in collections"
and has a balance of $1,214.00. [BN]
The Plaintiff is represented by:
Scott M. Grace, Esq.
GRACE LAW, APC
1958 Sunset Cliffs Boulevard
San Diego, CA 92107
Phone: (619) 346-4612
Fax: (619) 501-8106
Email: sgrace@gracelawapc.com
- and -
Babak Semnar, Esq.
Jared M. Hartman, Esq.
SEMNAR & HARTMAN, LLP
41707 Winchester Road, Suite 201
Temecula, CA 92590
Telephone: (951) 293-4187
Fax: (888) 819-8230
Email: bob@sandiegoconsumerattorneys.com
jared@sandiegoconsumerattorneys.com
- and -
Patric A. Lester, Esq.
CONSUMER ATTORNEY ADVOCATES, INC.
5694 Mission Center Road, #358
San Diego, CA 92108
Phone: (619) 665-3888
Fax: (314) 241-5777
Email: pl@lesterlaw.com
MAGNA LEGAL: Guynn-Neupane Seeks to Certify Class & Subclass
------------------------------------------------------------
In class action lawsuit captioned as NAOMI GUYNN-NEUPANE on behalf
of herself and all similarly situated employees, v. MAGNA LEGAL
SERVICES, LLC; WILKINS RESEARCH SERVICES, LLC; and DOES 1 through
50, inclusive, Case No. 5:19-cv-02652-VKD (N.D. Cal.), the
Plaintiff will move the Court on October 20, 2020 for an order:
1. certifying the following Class and Subclass:
"all individuals who participated as a research
participant in any in-person research sessions, online
research sessions, and/or exploratory focus groups for
Defendant Magna Legal Services, LLC in California, at any
time between April 10, 2015, through the present (the
"Class"); and
"all Class members who were recruited through Defendant
Wilkins Legal Services, LLC, at any time between April 10,
2015, through the present (the "Sub-Class"); and
2. finding the Plaintiff Naomi Guynn-Neupane to be an
adequate representative and certifying her as the class
representative and finding Plaintiff's counsel, namely
Larry W. Lee and Mai Tulyathan of Diversity Law Group,
P.C., B. James Fitzpatrick and Laura L. Franklin of
Fitzpatrick & Swanston as adequate class counsel.
Magna Legal Services, LLC provides legal services.
Wilkins Research Services, LLC was established in 1971, and is a
privately held data collection center dedicated to market
research.
A copy of the Plaintiff's motion for class certification is
available from PacerMonitor.com at https://bit.ly/3hMo4Cl at no
extra charge.[CC]
Attorneys for Plaintiff, the Class, and Aggrieved Employees are:
Larry W. Lee, Esq.
Mai Tulyathan, Esq.
DIVERSITY LAW GROUP, P.C.
515 South Figueroa Street, Suite 1250
Los Angeles, CA 90071
Telephone: (213) 488-6555
Facsimile: (213) 488-6554
E-mail: lwlee@diversitylaw.com
ktulyathan@diversitylaw.com
- and -
B. James Fitzpatrick, Esq.
Charles Swanston, Esq.
Laura Franklin, Esq.
FITZPATRICK & SWANSTON
555 S. Main Street
Salinas, CA 93901
Telephone: (831) 755-1311
Facsimile: (831) 755-1319
E-mail: bjfitzpatrick@fandslegal.com
cswanston@fandslegal.com
lfranklin@fandslegal.com
MARION COUNTY, FL: Court Denies Motion to Certify Class
-------------------------------------------------------
In the class action lawsuit captioned as CHARLES JOHNSON, v. BILLY
WOODS, SHERIFF MARION COUNTY, FLORIDA, Case No.
5:20-cv-00407-RBD-PRL (M.D. Fla.), the Hon. Judge Roy B. Dalton
entered an order:
1. denying the Petition for Writ of Habeas Corpus dismissing
the case;
2. denying the Motion for Temporary Restraining Order;
3. denying the Motion to Certify Class;
4. directng the Clerk to close the case; and
5. directing the Clerk to send Petitioner a blank Civil
Rights Complaint form. If the Petitioner chooses to
initiate another action, he should not place this case
number on the form because the Clerk will assign a
separate case number upon receipt.
The Court held that, as a pro se, non-lawyer litigant, the
Petitioner may not represent other inmates in this federal civil
action. See Hand v. Bibeault, 400 F. App'x 526, 528 (11th Cir.
2010) ("A non-attorney who is authorized to bring suit on behalf of
a party may not appear pro se as that party's 'legal counsel.'");
M.D. Fla. R. 2.01(a) ("No person shall be permitted to appear or be
heard as counsel for another in any proceeding in this Court unless
first admitted to practice in the Court.”). See also Johnson v.
Brown, 581 F. App'x 777, 781 (11th Cir. 2014) (affirming denial of
a pro se inmate's motion for class certification on the grounds
that an inmate cannot bring an action on behalf of others (citing
Timson v. Sampson, 518 F.3d 870, 873 (11th Cir. 2008))). The
Petitioner's Motion to Certify Class is denied.
The Petitioner claims the Respondent is acting with deliberate
indifference in response to the serious risk COVID-19 poses to
medically vulnerable inmates. The Petitioner alleges there is a
"systemic failure" by Respondent to identify and protect
individuals of the "medically vulnerable subclass".
The Marion County Sheriff's Office provides professional law
enforcement to the citizens of Marion County.
A copy of the Court's Order denying Motion to Certify Class is
available from PacerMonitor.com at https://bit.ly/2FIjHLa at no
extra charge.[CC]
MAYO CLINIC: Kuhr Suit Seeks to Certify Settlement Classes
----------------------------------------------------------
In the class action lawsuit captioned as NATALIE KUHR, on behalf of
herself and all others similarly situated, v. MAYO CLINIC
JACKSONVILLE, a Florida not for profit corporation and PROFESSIONAL
SERVICE BUREAU, INC., a Foreign corporation, Case No.
3:19-cv-00453-MMH-MCR (M.D. Fla.), the Plaintiff asks the Court for
an order:
1. conditionally certifying a class action for settlement
purposes only:
MAYO Class:
"all Florida Residents who according to readily accessible
data and other electronic records of MAYO, at any time
during the period of January 9, 2017 through May 28, 2020,
were charged by the Defendant MAYO medical-related fees
related to motor vehicle accidents in excess of the amount
allowed under Florida law"; and
Fair Debt Collection Practices Act Subclass:
"all Florida Residents who according to readily accessible
data and other electronic records of MAYO and PSB, at any
time during the period of January 9, 2018 through May 28,
2020, were charged by Defendant PSB acting on MAYO's
behalf medical-related fees related to motor vehicle
accidents in excess of the amount allowed under Florida
law."
The following people are excluded from the Classes: 1) any
Judge or Magistrate presiding over this action and members
of their families; 2) Defendants, Defendants'
subsidiaries, parents, successors, predecessors, and any
entity in which Defendants or their parents have a
controlling interest and its current or former employees,
officers and directors; 3) persons who properly execute
and file a timely request for exclusion from the Classes;
4) the legal representatives, successors, or assigns of
any such excluded persons; 5) Plaintiff's counsel and
Defendants' counsel. There are three hundred and seventy-
one (371) settlement class members.
2. preliminarily approving the Parties' proposed Revised
Settlement Agreement;
3. appointing the Plaintiff as Class Representative and
Plaintiff's counsel as Class Counsel for settlement
purposes;
4. establishing a schedule to complete the tasks necessary to
effectuate the proposed settlement; and
5. providing that if the Settlement Agreement is not finally
approved (or terminates for any reason), all parties shall
retain, without prejudice, all objections, arguments, and
defenses with respect to class certification
The Total Settlement Amount is $1,015,502.20, including $515,502.58
in Refunds and Waivers.
Settlement Class Members who were charged amounts in excess of the
amount allowed under section 627.736(5)(a)(4), Fla. Stat, have
already received 100% of those funds refunded or waived. In other
words, each Settlement Class Member will receive 100 cents on the
dollar for actual damages sustained. In addition to a refund of any
actual damages, Settlement Class Members will automatically receive
a pro-rata portion of a $500,000.00 Statutory Damage Fund. This is
the maximum amount of statutory damages permitted in a FCCPA or
FDCPA class action.
In this Action, Ms. Kuhr alleges that she and the proposed
Settlement Class were the subject of illegal medical billing
practices or "balance billing. Put simply, Ms. Kuhr alleges that
Defendant Mayo collected and/or attempted to collect medical bills
that were in excess of the amount permitted by Florida law. Balance
Billing refers to when a medical provider, in this case Mayo,
attempts to bill more than twenty percent (20%) of the schedule of
maximum charges and charges patients the balance between the Billed
Amount and the Insurance Payment.
The Complaint alleges that this conduct violated the Florida
Consumer Collection Practices Act, and the Fair Debt Collection
Practices Act (FDCPA), and seeks statutory damages, attorneys'
fees, and litigation costs from Defendant.
A copy of plaintiff's renewed unopposed motion for preliminary
approval of class action settlement, certification of the
settlement class, and approval of class notice is available from
PacerMonitor.com at https://bit.ly/2ZFwjtI at no extra charge.[CC]
The Plaintiff is represented by:
Jordan A. Shaw, Esq.
Kimberly A. Slaven, Esq.
ZEBERSKY PAYNE SHAW LEWENZ, LLP
110 Southeast 6th Street, Suite 2150
Fort Lauderdale, FL 33301
Telephone: (954) 989-6333
Facsimile: (954) 989-7781
E-mail: jshaw@zpllp.com
kslaven@zpllp.com
mperez@zpllp.com
MDL 2179: Summary Judgment Bid in Oil Spill Suit Partly Granted
---------------------------------------------------------------
In In re: Oil Spill by the Oil Rig "Deepwater Horizon" in the Gulf
Of Mexico, on April 20, 2010, SECTION: J. Applies to: Remaining
Cases in the B3 Pleading Bundle, MDL No. 2179 (E.D. La.), Judge
Carl Barbier of the U.S. District Court for the Eastern District of
Louisiana granted in part and denied in part BP's Motion for
Summary Judgment on B31 Claims Released Under the Medical Benefits
Class Action Settlement Agreement.
In 2012, after months of negotiations, BP America Production Co.
and BP Exploration & Production Inc., reached a class-wide
settlement, the Medical Benefits Class Action Settlement Agreement,
with many individuals allegedly injured by exposure to chemicals
released from the Macondo Well and/or used to combat the oil spill.
The Court preliminarily approved the Settlement on May 2, 2012.
Following a notice, objection, and opt-out period, the Court
certified the Medical Benefits Settlement Class and approved the
Settlement on Jan. 11, 2013.
The class is defined in relevant part as all natural persons who
worked as "Clean-Up Workers" at any time between April 20, 2010 and
April 16, 2012. The Settlement defines "Clean-Up Workers" as: All
natiral persons who performed Response Activities, including: 1.
Captains, crew, and other workers employed under the Vessels of
Opportunity (VoO) program who performed Response Activities; 2.
Workers employed to perform the decontamination of vessels involved
in Response Activities; 3. Captains, crew, and other workers on
vessels other than VoO who performed Response Activities; 4.
Onshore personnel employed to perform Response Activities; and 5.
Persons involved in the recovery, transport, and decontamination of
wildlife affected by the Deepwater Horizon incident.
Furthermore, "Response Activities" is defined as: the clean-up,
remediation efforts, and all other responsive actions (including
the use and handling of dispersants) relating to the release of
oil, other hydrocarbons, and other substances from the MC252 WELL
and/or the Deepwater Horizon and its appurtenances that were done
under the auspices of the Unified Command, BP, or a federal, state,
or local authority.
The Class members who did not want to be bound by the terms of the
Settlement could exclude themselves by mailing an opt-out request
to the Claims Administrator by Nov. 1, 2012. The Class members who
did not opt out of the Settlement were barred from commencing,
asserting, and/or prosecuting any and all "Released Claims" against
any "Released Party," as those terms are defined in the Settlement.
Indeed, the Court has previously dismissed claims that were
released by the Settlement.
In accordance with the Court's instruction, BP filed a motion for
summary judgment against 11 Plaintiffs (Ricky Robin, Jr. (No.
17-03383), Tiffany Lee (No. 16-13874), Craig Burkett (No.
17-03681), Thomas Bodiford (No. 17-03341), Lillie Coleman (No.
17-03130), Jordan Dixey (No. 17-04321), Joseph Bruton (No.
17-03110), Nakia Scott (No. 17-03609), Guy Wallace (No. 17-01039),
Ervin Pough (No. 17-04164), and Christopher Green (No. 17-03191) it
believes are class members and whose claims were released by the
Settlement. BP's motion is based in part on the Plaintiffs'
Particularized Statements of Claim ("PSOC"), which were provided in
2018 pursuant to the Pretrial Order No. 66 ("PTO 66") process.
The PSOC required the Plaintiff to provide information regarding,
among other things, whether the Plaintiff performed oil spill
cleanup work, the nature of the cleanup work, the circumstances of
the Plaintiff's exposure to chemicals, and the nature of the
plaintiff's claimed injuries. The PSOC included an attestation
where the Plaintiff declared under penalty of perjury that the
responses to the PSOC were true and correct.
BP's motion also relies upon a 2018 report from the Settlement's
Claims Administrator provided to the Court, BP, and the Plaintiffs'
Steering Committee ("GRG Report"). The GRG Report lists the
remaining Plaintiffs in the B3 bundle for whom the Claims
Administrator did not have a valid and timely opt-out request. The
Plaintiffs targeted by BP's motion are listed in the GRG Report.
Ten of the 11 Plaintiffs filed responses to BP's motion.
Judge Barbier granted in part and denied in part BP's Motion for
Summary Judgment. He released the claims by the following
Plaintiffs by the Medical Benefits Class Action Settlement
Agreement and dismissed with prejudice: Ricky Robin, Tiffany
Monicque Lee, Craig M. Burkett, and Christopher Green.
Among other things, Judge Barbier finds that Robin's attorneys
filed a response stating that Robin initially opted out of the
Settlement but later revoked his opt out. Robin's attorneys state
they have been unable to communicate with Robin, and they do not
oppose BP's motion.
Regarding Lee, Lee did not file a response to BP's motion.
According to the GRG Report, Lee did not opt out of the Settlement.
Accordingly, there is no material dispute that Lee is a class
member and her claim was released by the Settlement.
As to Burkett, who is pro se, he does not dispute that he is a
class member whose personal injury claim was released by the
Settlement. Instead, Burkett argues that he was not given proper
notice that he needed to opt out of the Settlement. However,
Burkett admits that notice was sent to the law firm that
represented his Vessel of Opportunity claim (although Burkett
points out that the firm did not represent his personal injury
claim). Thus, Burkett had actual notice through his counsel, which
satisfies due process. Furthermore, Judge Barbier has determined
that the Settlement's notice satisfied the requirements of Due
Process, Rule 23, and the Class Action Fairness Act.
Finally, regarding Green, an affidavit from his attorney states,
because Green worked offshore and was often unavailable to sign
documents and conduct other business related to his filed claim, he
appointed his mother with General Power of Attorney. Because Green
was not a minor, did not lack capacity or was incompetent, and was
alive, he was required to sign the opt-out himself. Therefore,
there is no genuine dispute that Green's opt-out was invalid.
The Clerk of Court is directed to file in 10-md-2179 and in the
four cases dismissed by the Order. The Clerk will mail a copy of
the Order to Craig M. Burkett, who is pro se.
A full-text copy of the Court's Sept. 2, 2020 Order & Reasons is
available at https://tinyurl.com/y3rg5aet from Leagle.com.
MDL 2862: Filing of Second Amended Consolidated Antitrust Suit OK'd
-------------------------------------------------------------------
Judge Donetta W. Ambrose of the U.S. District Court for the Western
District of Pennsylvania granted the Plaintiffs' Motion for Leave
to File Consolidated Second Amended Class-Action Complaint In IN
RE: DIISOCYANATES ANTITRUST LITIGATION. This Document Relates to
All Cases, Docket Misc. No. 18-1001, MDL No. 2862 (W.D. Pa.).
The Plaintiffs filed a Motion seeking leave to amend the Class
Action Complaint (CAC) to add an additional named Plaintiff,
American Polymers Corp. The Defendants filed a Memorandum in
Opposition asserting that the Motion should be denied because the
Plaintiffs' actions constitute undue delay, and that the Motion is
partially futile and substantially prejudices them. Thereafter,
the Plaintiffs filed a Reply.
The antitrust litigation was initiated on Oct. 10, 2018 and
involves diisocyanates. The Plaintiffs' CAC alleges the Plaintiffs
purchased diisocyanates from the Defendants. More specifically,
the CAC discusses the purchase of both MDI (methylene diphenyl
diisocyanate) and TDI (toluene diisocyanate).
The Defendants moved to dismiss the TDI allegations arguing, inter
alia, that the Plaintiffs lacked standing to bring the same. In
response, the Plaintiffs stated that they purchased both MDI and
TDI from the Defendants at inflated prices in the CAC. On June 11,
2020, the Plaintiffs discovered that none of the named Plaintiffs
have records of any purchase of TDI from a Defendant during the
Class Period. According to them, it was a "misunderstanding" based
on "client representations to the counsel." On July 5, 2020, the
Plaintiffs informed the Defendants of the same and sought consent
to add American Polymers, a putative class Plaintiff, as a named
Plaintiff.
The Defendants assert the Motion to Amend should be dismissed due
to undue delay.
Upon review of the submissions of the parties, Judge Ambrose finds
that though it would have been preferable for the Plaintiffs to
have uncovered their "misunderstanding" previously, she does not
find bad faith or undue delay. Within 30 days of discovering the
misunderstanding, the Plaintiffs informed the Defendants. While
the Defendants assert that the Plaintiffs should have discovered
their "misunderstanding" at various prior junctures, it does not
alter the fact that the case is still in its early stages.
Discovery has just recently begun. Jurisdictional discovery with
foreign Defendants is ongoing. Deadlines for challenges to class
certification pursuant to Rule 23 have not been set. No trial date
has been contemplated or set. Additionally, she notes that TDI
products have been a part of the action from the very outset of
this multi-district litigation. Consequently, amendment should not
materially delay any current schedule.
The Defendants further assert that the amendment is partially
futile because it is barred by the statute of limitations and
because it does not cure the jurisdictional defects as to the
foreign Defendants. Judge Ambrose disagrees. The touchstone of
relating back is fair notice. The Defendants suggest that the
Court's inquiry must go further and consider Rule 15(c)(1)(C) in
accordance with Nelson v. City of Allegheny. Nelson involved a
motion to amend that was filed after class certification had been
denied. That is not the case in the matter. Thus, the Judge finds
the Defendants' reliance on the same is misplaced.
The Plaintiffs are not attempting to inject a new unanticipated
claim or assert a new theory. From the outset they have pursued
claims related to diisocyanates, including TDI. As evidenced by
the proposed amendment, the Plaintiffs merely seek to add a named
Plaintiff from a putative class member and assert the identical
claims. Additionally, the Defendants do not suggest that the
Plaintiffs' CAC is untimely. Based on the same, Judge Ambrose
finds the claim relates back to the filing of the class action.
Therefore, the Plaintiffs' requested amendment would not be barred
by the statute of limitations, and, thus, not futile.
Finally, the Defendants assert that they will be "substantially
prejudiced" by the proposed amendment because they should not have
to litigate allegations that should never have been brought and
should have been dismissed several months ago resulting in wasted
time and resources. To the contrary, the Defendants have had
notice all along that TDI (as a diisocyanate) is part of the
alleged conspiracy. As set forth, it is a not new claim. Time and
resources spent, therefore, are not wasted. Moreover, permitting
the amendment should not materially delay the current discovery
schedule as it does not change the nature of claims asserted
against the Defendants.
Based on the foregoing, Judge Ambrose granted the Plaintiffs leave
to file a Second Amended CAC to add American Polymers as an
additional named Plaintiff.
The Plaintiffs Second Amended CAC only will include the following
new allegation at Paragraph 24A: "Plaintiff American Polymers Corp.
is a California corporation with its principal place of business in
Santa Fe Springs, California. American Polymers Corp. purchased in
the United States one or more of the products at issue directly
from one or more of the Defendants during the Class Period and was
injured in its business or property by reason of Defendants'
alleged violations of the Sherman Act."
In accordance with the Order granting the Plaintiffs leave to file
their Second Amended CAC under seal, the Plaintiffs may file their
Second Amended CAC under seal.
"The Defendants are permitted, but need not, file responsive
pleadings to the Second Amended CAC by Sept. 24, 2020. If no
responsive pleading is filed to the Second Amended CAC, the
Defendants' Answers to the CAC will be deemed to have been filed in
response to the Second Amended CAC, in which case the Defendants
will be deemed to have denied the allegations of paragraph 24A of
the Second CAC," Judge Ambrose held.
The Plaintiffs will provide the information required under Section
4(c) of the Stipulated Order re: Discovery of Electronically Stored
Information for Plaintiff American Polymers within 21 days of the
Order. They will collect and provide the Defendants with the data
field maintained by Plaintiff American Polymers, and a sample of
the requested fields within 30 days of the Order.
A full-text copy of the Court's Sept. 4, 2020 Memorandum Opinion &
Order is available at https://tinyurl.com/y59yuq5s from Leagle.com.
MICHAEL DEMAYO: Court Denies Bid to Strike Class Claims in Hatch
----------------------------------------------------------------
In the case, JONATHAN HATCH, et al., on behalf of themselves and
others similarly situated, Plaintiffs, v. MICHAEL A. DEMAYO, et
al., Defendants, Case No. 1:16CV925 (M.D. N.C.), Judge Loretta C.
Biggs of the U.S. District Court for the Middle District of North
Carolina, denied the motion to strike the operative complaint's
class allegations, filed by all but two of the named Defendants,
pursuant to Federal Rule of Civil Procedure 12(f).
In the putative class action, the Plaintiffs allege that the
Defendants violated the Driver's Privacy Protection Act of 1994
("DPPA"), by obtaining their names and addresses from automobile
accident reports and using that information for marketing purposes.
Before the Court is the Moving Defendants' motion to strike the
operative complaint's class allegations. As framed in the briefs,
the instant motion presents a single, narrow question: whether the
text of the DPPA contains a statutory bar prohibiting aggregated or
class action litigation.
In relevant part, the DPPA provides that a person who knowingly
obtains, discloses or uses personal information, from a motor
vehicle record, for a purpose not permitted under this chapter will
be liable to the individual to whom the information pertains, who
may bring a civil action in a United States district court.
According to the Moving Defendants, this language creates an
exclusive "statutory privity," running only between a defendant
(who improperly obtained, disclosed, or used personal information)
and a plaintiff ("to whom the information pertains"), which
precludes any and all representative actions.
Judge Biggs disagrees. Congress knows how to create exceptions to
Rule 23's general authorization of class actions -- it did not
create one in the case. Nor does it matter that the DPPA fails to
expressly permit class actions, as the Moving Defendants argue.
If the Court were to accept the Moving Defendants' reading, class
representation would be unavailable in any suit arising out of a
statute that provides for an individualized private cause of action
where such statute does not explicitly authorize a class action.
Yet class actions for violations of such statutes are routinely
maintained even though the statute itself does not explicitly
provide for such action.
In short, the Judge finds no basis for the Moving Defendants'
contention that the language of the DPPA precludes class actions,
as a general matter. That is not to say, of course, that the
classes and subclasses proposed in the suit are certifiable; the
Judge will make that determination separately. Thus, the Judge
denied the Moving Defendants' Motion to Strike Class Allegations.
A full-text copy of the District Court's June 26, 2020 Memorandum
Opinion & Order is available at https://bit.ly/3lN5vk4 from
Leagle.com.
MICHIGAN: Wash. Dist. Court Dismisses Young Prisoner Suit
---------------------------------------------------------
In the case, DEMARCUS T. YOUNG, Plaintiff, v. GRETCHEN WHITMER et
al., Defendants, Case No. 2:20-cv-68 (W.D. Wash.), Judge Robert J.
Jonker of the U.S. District Court for the Western District of
Michigan, Northern Division, dismissed the Plaintiff's complaint
for failure to state a claim.
The case is a civil rights action brought by a state prisoner under
42 U.S.C. Section 1983. The Plaintiff is presently incarcerated
with the Michigan Department of Corrections ("MDOC") at the
Chippewa Correctional Facility ("URF") in Kincheloe, Chippewa
County, Michigan. The events about which he complains occurred at
that facility. The Plaintiff sues Gov. Whitmer, MDOC Director
Heidi Washington, and Warden Connie Horton.
The Plaintiff lists Maurice Haynes and Charles E. Payton as
Plaintiffs in the case. However, Haynes and Payton failed to sign
the complaint. Therefore, they are not parties to the action.
The Plaintiff also attaches a list of names and signatures of other
prisoners to his complaint as an exhibit. He states that these
prisoners are joining him in the action and states that he is
reserving the right to modify the classes of prisoners he is
including in his complaint. However, the Plaintiff does not
include the names or reference the prisoners in the body of his
complaint. Nor did any other prisoner file an application to
proceed IFP. The list itself does not declare that the signatories
are Plaintiffs. Instead it appears that the Plaintiff is
attempting to file a class action in which he seeks to represent
the rights of vulnerable prisoners within the MDOC.
The Plaintiff alleges that he is a medically vulnerable prisoner
and that he and other prisoners have raised their concerns
regarding the danger of infection from COVID-19 with their Unit
Block Representative. However, Plaintiff Young does not allege any
specific facts regarding his age or any preexisting medical
conditions. According to the MDOC's Offender Tracking System
("OTIS"), he was born on June 18, 1991, and is currently 29 years
old. He is 5 feet and 9 inches tall and weighs 179 pounds.
The Plaintiff states that on March 10, 2020, the Michigan
Department of Health and Human Services identified the first two
positive cases of COVID-19 in Michigan. On the same date, Gov.
Whitmer issued an executive order declaring a state of emergency,
which stated that the best way to prevent the spread of COVID-19 is
to maintain a distance of 6 feet between other people, to wear
masks, and to frequently clean hands and surfaces. The Plaintiff
alleges that although the MDOC has instituted certain procedures to
protect inmates, they do not adequately protect prisoners. He
states that ventilation, heating, cleaning and sanitary supplies,
personal hygiene supplies, personal protective equipment, and the
ability to socially distance are all inadequate.
The Plaintiff states that the Defendants failure to properly
address the continued danger of contracting COVID-19 violates his
due process rights under the Fifth and Fourteenth Amendments, and
his Eighth Amendment right to be free from cruel and unusual
punishment. He seeks early release from prison for eligible
prisoners, home confinement and community placement for other
prisoners, and modified prison environment to allow for social
distancing. He also seeks adequate cleaning and personal hygiene
supplies. Finally, the Plaintiff seeks compensatory and punitive
damages.
First, because Plaintiff is an incarcerated pro se litigant, Judge
Jonker finds that he is not an appropriate representative of a
class. Therefore, he denies the Plaintiff's request for class
certification.
Second, to the extent that the Plaintiff is seeking to be released
from prison, he is not entitled to relief under Section 1983. A
challenge to the fact or duration of confinement should be brought
as a petition for habeas corpus and is not the proper subject of a
civil rights action brought pursuant to Section 1983. Therefore,
to the extent that the Plaintiff's complaint challenges the fact or
duration of his incarceration, it must be dismissed.
Third, the Plaintiff's allegations do not rise to the level of an
Eighth Amendment violation. The Judge finds that the Plaintiff
does not allege that he has come into contact with any individual
who has COVID-19. The MDOC has taken extensive steps to address
the risk of COVID-19 to inmates statewide. Such actions
demonstrate the opposite of a disregard of a serious health risk.
Although the Court is sympathetic to the Plaintiff's general
concern about the COVID-19 virus, he has failed to allege facts
showing that th eDefendants' handling of the COVID-19 crisis
violated his Eighth Amendment rights.
Finally, the Plaintiff has filed a motion for a temporary
restraining order seeking immediate release to home confinement.
However, because the Plaintiff has failed to state a claim upon
which relief may be granted, his motion is properly denied as
moot.
Having conducted the review required by the Prison Litigation
Reform Act, Judge Jonker concludes that the Plaintiff's complaint
will be dismissed for failure to state a claim, under 28 U.S.C.
Sections 1915(e)(2) and 1915A(b), and 42 U.S.C. Section 1997e(c).
He must next decide whether an appeal of the action would be in
good faith within the meaning of 28 U.S.C. Section 1915(a)(3). He
does not certify that an appeal would not be in good faith.
Should the Plaintiff appeal his decision, Judge Jonker will assess
the $505 appellate filing fee pursuant to Section 1915(b)(1),
unless the Plaintiff is barred from proceeding in forma pauperis,
e.g., by the "three-strikes" rule of Section 1915(g). If he is
barred, he will be required to pay the $505 appellate filing fee in
one lump sum.
The Opinion is a dismissal as described by 28 U.S.C. Section
1915(g). A judgment consistent with the Opinion will be entered.
A full-text copy of the Court's Sept. 9, 2020 Opinion is available
at https://tinyurl.com/y8nv5x32 from Leagle.com.
MONTGOMERY, AL: McCullough et al. Seek to Certify Three Classes
---------------------------------------------------------------
In the class action lawsuit captioned as ANGELA MCCULLOUGH et al.,
on behalf of themselves, individually, and on behalf of a class of
all others similarly situated, v. THE CITY OF MONTGOMERY, ALABAMA
and JUDICIAL CORRECTION SERVICES, INC., a corporation, Case No.
2:15-cv-00463-RCL-SMD (M.D. Ala.), the Plaintiffs ask the Court for
an order:
1. certifying these three Classes under Rules 23(a)
and 23(b)(3) of the Federal Rules of Civil Procedure:
Bearden Class, consisting of:
"all individuals the Montgomery Municipal Court placed on
JCS-supervised probation, who: (1) had debt commuted to
jail time in a JCS-supervised case after JCS petitioned
the court to revoke probation; and (2) served any of that
jail time on or after July 1, 2013";
False Imprisonment Class, consisting of:
"all individuals the Montgomery Municipal Court placed on
JCS-supervised probation, who: (1) had debt commuted to
jail time in a JCS-supervised case after JCS petitioned
the court to revoke probation; and (2) served any of that
jail time on or after July 1, 2009"; and
Abuse of Process Class, consisting of :
"all individuals the Montgomery Municipal Court placed on
JCS-supervised probation: (1) who at any time paid less
than the minimum monthly payment ordered by the court; and
(2) from whom JCS continued to collect or attempt to
collect after July 1, 2013";
2. appointing the Plaintiffs Agee and McCullough as
representatives of the Bearden Class; Plaintiffs Agee,
McCullough, Edwards, Johnson, Jones, and Mooney as
representatives of the False Imprisonment Class; and
Plaintiff Caldwell as representative of the Abuse of
Process Class; and
3. appointing the National Center for Law and Economic
Justice, Dentons LLP, Chestnut, Sanders & Sanders LLC, and
Martha Morgan as counsel for the Classes.
Montgomery is the capital city of Alabama. Judicial Correction
Services, Incorporated is a privately held probation company
established in 2001 and based in Georgia.
A copy of the Plaintiffs' motion for class certification is
available from PacerMonitor.com at https://bit.ly/3iSHzun at no
extra charge.[CC]
The Plaintiffs are represented by:
Gregory Lee Bass, Esq.
Britney Wilson, Esq.
Claudia Wilner, Esq.
NATIONAL CENTER FOR LAW
AND ECONOMIC JUSTICE
275 Seventh Avenue, Suite 1506
New York, NY 10001
Telephone: (212) 633-6967
E-mail: bass@nclej.org
wilson@nclej.org
wilner@nclej.org
- and -
Martha I. Morgan, Esq.
8800 Lodge Lane
Cottondale, AL 35453
Telephone: (205) 799-2692
E-mail: mimorgan@yahoo.com
- and -
Faya Rose Toure, Esq.
Henry Sanders, Esq.
CHESTNUT, SANDERS & SANDERS LLC
P.O. Box 1290
Selma, AL 36702
Telephone: (334) 526-4531
Facsimile: (334) 526-4535
E-mail: fayarose@gmail.com
gpompey@csspca.com
MONTGOMERY, AL: Singleton Seeks Class Certification
---------------------------------------------------
In class action lawsuit captioned as JONATHAN SINGLETON, RICKY
VICKERY, and MICKI HOLMES, on behalf of themselves and others
similarly situated, v. CITY OF MONTGOMERY, ALABAMA, HAL TAYLOR, in
his official capacity as Secretary of the Alabama Law Enforcement
Agency, and DERRICK CUNNINGHAM, in his official capacity as Sheriff
for Montgomery County, Case No. 2:20-cv-00099-WKW-JTA (M.D. Ala,),
the Plaintiffs Micki Holmes, Jonathan Singleton, and Ricky Vickery
move the Cout for certification of and seek to represent a Class,
which is proposed to be defined as:
"all individuals who will in the future (1) stand on a public
street for the purpose of soliciting employment, business, or
contributions from the occupant of a vehicle, or (2) loiter,
remain, or wander in a public place for the purpose of
begging."
Montgomery is the capital city of Alabama.
A copy of the Plaintiffs' motion for class certification is
available from PacerMonitor.com at https://bit.ly/3myObjX at no
extra charge.[CC]
The Plaintiffs are represented by:
Micah West, Esq.
Ellen Degnan, Esq.
SOUTHERN POVERTY LAW CENTER
400 Washington Avenue
Montgomery, AL 36104
Telephone: (334) 956-8200
Facsimile: (334) 956-8481
E-mail: ellen.degnan@splcenter.org
micah.west@splcenter.org
- and -
Clara Potter, Esq.
SOUTHERN POVERTY LAW CENTER
201 St. Charles Avenue, Suite 2000
New Orleans, LA 70170
Telephone: (504) 486-8982
Facsimile: (504) 486-8947
E-mail: clara.potter@splcenter.org
- and -
Randall C. Marshall, Esq.
ACLU FOUNDATION OF ALABAMA
P.O. Box 6179
Montgomery, AL 36106
Telephone: (334) 265-2754
E-mail: rmarshall@aclualabama.org
- and -
Tristia Bauman, Esq.
NATIONAL LAW CENTER ON
HOMELESSNESS AND POVERTY
2000 M Street NW, Suite 210
Washington, D.C., 20036
Telephone: (202) 638-2535
Facsimile: (202) 638-2737
E-mail: tbauman@nlchp.org
The Defendants are represented by:
Robert D. Segall, Esq.
Shannon L. Holliday, Esq.
Wallace D. Mills, Esq.
COPELAND FRANCO SCREWS & GILL P.A.
444 South Perry Street
Montgomery, AL 36104
- and -
Jeremy S. Weber, Esq.
James W. Davis, Esq.
OFFICE OF THE ATTORNEY GENERAL
501 Washington Avenue
Montgomery, AL 36130
- and -
Thomas T. Gallion, III, Esq.
Constance C. Walker
HASKELL SLAUGHTER GALLION & WALKER, LLC
242 Winton Blount Loop
Montgomery, AL 36117
MRS BPO: Can't Compel Arbitration in Ioane TCPA/FDCPA Suit
----------------------------------------------------------
In the case, SHANE IOANE, on behalf of himself and all others
similarly situated, Plaintiff, v. MRS BPO, LLC a/k/a MRS ASSOCIATES
OF NEW JERSEY, Defendant, Civil No. 20-00040 JAO-WRP (D. Haw.),
Judge Jill A. Otake of the U.S. District Court for the District of
Hawaii denied the Defendant's Motion to Compel Arbitration.
Plaintiff Ioane brings the action against the Defendant alleging
that it violated the Telephone Consumer Protection Act ("TCPA") and
the Fair Debt Collection Practices Act ("FDCPA") by sending him
various text messages in connection with a debt he allegedly owed.
In 2016, the Plaintiff opened an account with Verizon Wireless and,
in connection with doing so, signed a Receipt of Transaction. YThe
Receipt of Transaction contains a section labeled "Agreements (View
full agreement at vzw.com/myverizon)" with a subsection entitled
"Customer agreement" that provides: "I agree to the Verizon
Wireless Customer Agreement including, settlement of disputes by
arbitration instead of jury trial." The Defendant attests that a
true and correct copy of the relevant Customer Agreement contains
the arbitration clause.
In 2019, Verizon placed the Plaintiff's past due account with the
Defendant and the Defendant attempted to collect the Plaintiff's
debt on Verizon's behalf. According to the allegations in the
Plaintiff's Complaint, the Defendant sent text messages to him
without his prior express consent on five occasions. The text
messages asked the Plaintiff to contact the Defendant regarding a
Verizon Wireless matter, indicated they were an attempt to collect
a debt, and identified the Defendant as a debt collector.
The Plaintiff contends these text messages constitute violations of
the TCPA because the Defendant used an automatic telephone dialing
system within the meaning of the TCPA to send generic, impersonal
text messages aimed at a mass audience without his prior express
consent. He further contends that, although the Defendant
communicated with him at least five times, he never received a
notice of his right to dispute the debt, in violation of the FDCPA.
The Plaintiff claims that the Defendant engaged in similar conduct
in violation of these federal statutes with regard to thousands of
other persons, and thus also seeks to bring these claims on a
classwide basis.
The Plaintiff filed a Class Action Complaint against the Defendant
bringing the following claims: First Cause of Action - violation of
the TCPA; Second Cause of Action - violation of the FDCPA. The
Defendant filed a Motion to Compel Arbitration and stay the case
pending arbitration, which the Plaintiff opposes.
Judge Otake finds that the Plaintiff's TCPA and FDCPA claims rely
on and are founded in federal consumer protection statutes, not his
Customer Agreement with Verizon. The allegations in the Complaint
object to receiving text messages from the Defendant and not
receiving information regarding how to dispute an alleged debt;
they do not reference any term of the Customer Agreement, allege
any violation of it, or seek to enforce or benefit from any of its
terms. The Defendant thus has not shown that the Plaintiff must
rely on the terms of the Customer Agreement in asserting his claims
against it.
As the Plaintiff notes, district courts outside the Ninth Circuit
have similarly held that TCPA and FDCPA claims do not rely on the
terms of a written agreement even if the claims presume the
existence of such an agreement, such as for the purpose of noting
the existence of a debt. In fact, the Defendant cites no case
where a court compelled a plaintiff to arbitrate TCPA or FDCPA
claims against a nonsignatory after concluding that the claims
relied on the terms of an agreement. Instead, most of the cases
the Defendant cites in favor of compelling arbitration involved
suits against Verizon, i.e., a party to the contract, and addressed
whether statutory claims fell within the scope of an arbitration
clause -- rather than whether a nonsignatory had standing to compel
arbitration.
The only instance Defendant raises where a court allowed a
nonsignatory debt collector to compel arbitration against a Verizon
customer, is distinguishable because the Defendant cites it for the
proposition that a nonsignatory "acting on behalf of" a signatory
is "permitted to compel arbitration." But under Hawai'i law, a
nonsignatory may not invoke an arbitration clause merely because of
its status as an agent of one of the signatories. Instead, a
nonsignatory agent may invoke the arbitration clause only if the
claims against him are dependent on the agreement in which the
arbitration clause appears -- which the Defendant has not shown.
For these reasons, Judge Otake concludes that the Defendant's
Motion must be denied, and he therefore need not address the
Plaintiff's other arguments. Accordingly, the Court denied the
Defendant's Motion to Compel Arbitration.
A full-text copy of the Court's Sept. 4, 2020 Order is available at
https://tinyurl.com/yyh2pxl6 from Leagle.com.
MUTUAL FUND: Emerson Suit Settlement Gets Final Court Approval
--------------------------------------------------------------
In the case, ROGER EMERSON, MARY EMERSON, ROBERT CAPLIN and MARTHA
J. GOODLETT, Individually and on Behalf of All Others Similarly
Situated, Plaintiffs, v. MUTUAL FUND SERIES TRUST, CATALYST CAPITAL
ADVISORS LLC, NORTHERN LIGHTS DISTRIBUTORS LLC, JERRY SZILAGYI,
TOBIAS CALDWELL, TIBERIU WEISZ, BERT PARISER, and ERIK NAVILOFF,
Defendants, Civil Action No. 2:17-cv-02565-SJF-SIL (E.D. N.Y.),
Judge Sandra J. Feuerstein of the U.S. District Court for the
Eastern District of New York finally approved the Class Action
Settlement.
The matter came before the Court pursuant to the Order Granting
Preliminary Approval of Class Action Settlement, Approving Form and
Manner of Notice, and Setting Date for Hearing on Final Approval of
Class Action Settlement, entered March 30, 2020, on the application
of the Parties for approval of the settlement set forth in the
Stipulation and Agreement of Settlement, dated March 5, 2020. Due
and adequate notice having been given to the Settlement Class as
required in the Preliminary Approval Order, and the Judge having
considered all papers filed and proceedings had therein, affirmed
the Court's determinations in the Preliminary Approval Order.
Judge Feuerstein finally certified, for purposes of the Settlement
only, pursuant to Rules 23(a) and (b)(3) of the Federal Rules of
Civil Procedure, the Settlement Class of: all persons and entities
that purchased or otherwise acquired Class A, Class C, and/or Class
I shares of the Catalyst Hedged Futures Strategy Fund during the
period from Nov. 1, 2014 through June 30, 2017, inclusive, and were
allegedly damaged thereby.
Judge Feuerstein re-affirmed and finally certified Lead Plaintiffs
Eugene Almendinger, Jeffrey Berkowitz, Debra Folk, Earle Folk,
Maryann Lovelidge, and Tom Lovelidge as the Class Representatives;
and finally appointed the law firms of Labaton Sucharow LLP and
Robbins Geller Rudman & Dowd LLP as the Class Counsel.
The Court has received and considered the objection to the
Settlement filed by Settlement Class Member Robert E. McCarthy.
The objection is overruled in its entirety.
Pursuant to Federal Rule of Civil Procedure 23(e)(2), Judge
Feuerstein approved the Settlement set forth in the Stipulation,
and authorized and directed the implementation and performance of
all the terms and provisions of the Stipulation, as well as its
terms and provisions.
All the Released Claims of the Settlement Class, as against the
Defendants and the Released Defendant Parties, are dismissed with
prejudice. All the Settlement Class Members are forever barred and
enjoined from prosecuting any of the Released Claims against any of
the Released Defendant Parties.
Without further order of the Court, the Parties may agree to
reasonable extensions of time to carry out any of the provisions of
the Stipulation.
A full-text copy of the Court's Sept. 9, 2020 Order is available at
https://tinyurl.com/yaofa9gk from Leagle.com.
NATIONAL FREIGHT: Class of Delivery Drivers in Portillo Certified
-----------------------------------------------------------------
In the case, JOHN F. PORTILLO et al., individually and on behalf of
all others similarly situated, Plaintiffs, v. NATIONAL FREIGHT,
INC. and NFI INTERACTIVE LOGISTICS, INC., Defendants, Civil No.
15-7908 (JHR/KMW) (D. N.J.), Judge Joseph H. Rodriguez of the U.S.
District Court for the District of New Jersey, Camden Vicinage,
granted the Plaintiffs' Motion for Class Certification.
The Defendants compose a leading provider of transportation,
logistics and distribution services to various clients including,
most relevant to the case, Trader Joe's Markets. NFI transports
goods between Trader Joe's warehouses and stores up and down the
Eastern Seaboard. To fulfill its obligations to Trader Joe's, NFI
uses both its own employees and independent contractors as delivery
drivers.
The Named Plaintiffs in the suit -- Portillo, Rafael Suarez, Martin
Duran, German Bencosme, Edin Vargas, Luis A. Hernandez, Josue Paz,
and Alvaro Castaneda -- worked for NFI as delivery drivers during
the relevant time period (i.e., between June 22, 2019, and the
present). Each of them signed an agreement (generally referred to
as an "Independent Contractor Agreement" ("ICA") with NFI that
classified them as independent contractors rather than employees.
The Plaintiffs believe that NFI entered into at least 135 such
agreements with who performed deliveries full-time to Trader Joe's
stores on the East Coast on NFI's behalf.
They allege, on behalf of themselves and others similarly situated,
that they were wrongly classified as independent contractors and
that as a result of that misclassification, NFI illegally deducted
amounts from their compensation in violation of the New Jersey Wage
Payment Law" ("NJWPL").
The Defendants used four different ICAs during the relevant time
period. In 2009, NFI used an agreement called the "Lessor and
Lessee Operating Agreement" ("2009 LLOA"). Beginning at some point
in 2010, NFI started using an agreement called the "Independent
Contractor Operating Agreement" ("2010 ICOA"). In 2017 and 2019,
NFI implemented new versions of the Independent Contractor
Operating Agreement ("2017 ICOA" and "2019 ICOA," respectively).
Importantly, the 2009 LLOA contains a New Jersey choice of law
provision and no forum selection clause ("2009 LLOA Provision");
the 2010 and 2017 Agreements contain a New Jersey choice of law
provision and a New Jersey forum selection clause ("2010 ICOA
Provision" and "2017 ICOA Provision," respectively); and the 2019
Agreement contains a Texas choice of law provision and a Texas
forum selection clause ("2019 ICOA Provision"). According to the
Defendants, as of Oct. 18, 2019, five drivers had signed the 2019
Agreement.
Other than the choice-of-law clauses, the contents of the various
ICAs are materially the same. They required various things from
the drivers, including background checks, drug and alcohol testing,
the Defendants' exclusive use of the drivers' trucks, utilization
of a specific GPS system, acquisition of various forms of
insurance, regular inspections by the Defendants, record
maintenance, log sheets, toll receipts, and immediate reporting of
all accidents, among various other terms. The Defendants also
utilized various workplace rules and procedures, including
handbooks, codes of conduct, and other written policies that
dictated the drivers' activities. The drivers had to put NFI's
logo on their trucks and were prohibited from putting another
company's logo on them. They were restricted in their ability to
work for other companies, both practically (given the amount of
hours they worked) and contractually (the Defendants had to give
written consent).
In practice, the drivers would report at least once per day to a
Trader Joe's warehouse in either Nazareth or Hatfield,
Pennsylvania, locations where the Defendants have offices and
on-site staff. Their deliveries and routes were pre-determined by
the Defendants, including the times that they had to be made. The
Defendants were able to monitor drivers' progress via the GPS
system mentioned. Failure to follow the procedures, rules,
policies, and schedules set out by the Defendants could result in
their employees disciplining the drivers.
Finally, the Defendants had the authority to make various
deductions from the drivers' weekly paychecks. Deductions included
costs for the GPS device, damages to goods or property, fuel,
insurance, and other things. The crux of the Plaintiffs' case is
their allegation that these deductions were taken illegally by the
Defendants. This relies on a finding that the Plaintiffs were in
fact employees, and not independent contractors, under the NJWPL,
which would make such deductions illegal.
In order to rectify their alleged damages, the Plaintiffs filed the
suit in the Superior Court of New Jersey Law Division in Camden
County on June 19, 2015. On Nov. 5, 2015, the Defendants removed
the case to the Court. After nearly three years of litigation --
including discovery issues and denied motions to remand, to
dismiss, and for summary judgment -- the Plaintiffs filed the
operative Amended Complaint on Aug. 13, 2018. The parties then
unsuccessfully attempted to resolve the case via mediation between
Nov. 30, 2018, and April 15, 2019.
After further discovery issues, the Plaintiffs filed their Motion
for Class Certification on Sept. 3, 2019. The Defendants filed
their response in opposition on Oct. 18, 2019. The Plaintiffs
timely filed their response on Nov. 1, 2019. The Defendants were
permitted to file a sur-reply brief on June 30, 2020.
The Plaintiffs seek to certify the following class: All individuals
who: (1) entered into an independent contractor agreement with NFI,
either personally or through a corporate entity; and (2) drove a
vehicle on a full-time basis to perform deliveries of goods to
Trader Joe's stores anywhere on the East Coast on behalf of NFI at
any time since June 22, 2009.
The first argument that the Defendants make in their opposition to
the Plaintiffs' Motion for Class Certification revolves around what
law should apply in the case. In their initial brief, the
Plaintiffs refer exclusively to New Jersey law, which they argue
applies because of an earlier decision made by the late Hon. Jerome
B. Simandle. The Defendants disagree with that interpretation of
that Opinion.
With respect to the Defendants' arguments that the Court's previous
Opinion about choice of law does not apply to anybody beyond Named
Plaintiffs, Judge Rodriguez now holds that the Court's previous
Opinion does apply to the putative class members, except for those
who only signed the 2019 ICOA. The Court's previous decision
relied heavily on the fact that the 2009 LLOA, the 2010 ICOA, and
the 2017 ICOA all had New Jersey choice-of-law clauses. The 2019
ICOA, conversely, has a Texas choice-of-law clause. This fact
drastically changes the Court's previous analysis. The Judge holds
that the lack of a New Jersey choice-of-law clause in the 2019 ICOA
would change the outcome of the Court's previous decision.
A proposed class of five members would not satisfy the numerosity
requirement. Because the choice-of-law question is not contested
with respect to the drivers who signed the 2019 ICOA, the Judge
will refrain from giving an in-depth analysis of what state has the
most significant relationship to the circumstances surrounding the
drivers who signed the 2019 ICOA. For the purposes of the Motion,
he holds that it suffices to say that New Jersey law would not
apply to those drivers.
The Judge next discusses the requirements of Federal Rule of Civil
Procedure 23, which governs class certification. The Judge finds
that all of the relevant Rule 23 requirements are met, so he will
grant class certification.
For the reasons expressed, Judge Rodriguez granted the Plaintiffs'
Motion for Class Certification, though he slightly altered the
Plaintiffs' proposed class in light of the findings of his Opinion.
The following class is certified under Rule 23(b)(3):
All individuals who: (1) entered into, either personally or
through a corporate entity, an independent contractor agreement
with NFI that had a New Jersey choice-of-law clause; and (2)
drove a vehicle on a full-time basis to perform deliveries of
goods to Trader Joe's stores anywhere on the East Coast on
behalf of NFI at any time since June 22, 2009. Full-time
basis means having delivered at least 80% of the loads
assigned to the contractor.
A full-text copy of the District Court's June 30, 2020 Opinion is
available at https://bit.ly/3iWS5jC from Leagle.com.
NCAA: Freeman Sues Over Effects of Concussion-related Injuries
--------------------------------------------------------------
Andre Freeman, individually and on behalf of all others similarly
situated, Plaintiff, v. National Collegiate Athletic Association
(NCAA), Defendants, Case No. 20-cv-02085 (S.D. Ind., August 7,
2020), seeks economic, monetary, actual, consequential,
compensatory, and punitive damages, past, present and future
medical expenses, other out of pocket expenses, lost time and
interest, lost future earnings, litigation and attorney fees,
prejudgment and post-judgment interest, injunctive and/or
declaratory relief and such other and further relief resulting from
negligence, fraudulent concealment, breach of express contract,
breach of implied contract, breach of third-party express contract
and unjust enrichment.
Andre Freeman played football for the Slippery Rock University of
Pennsylvania from 2009 to 2011, as a defensive back. He suffered
from numerous concussions, as well as countless sub-concussive hits
as part of routine practice and gameplay. Freeman now suffers from
issues including, but not limited to, migraines, short-term memory
loss, loss of impulse control, loss of concentration, depression,
emotional instability, and suicidal thoughts.
NCAA is an unincorporated association with its principal office
located at 700 West Washington Street, Indianapolis, Indiana 46206.
The NCAA is the governing body of collegiate athletics that
oversees twenty-three college sports and over 400,000 students who
participate in intercollegiate athletics. Freeman alleges NCAA knew
about the debilitating long-term dangers of concussions,
concussion-related injuries and sub-concussive injuries that
resulted from playing college football, but did nothing.[BN]
Plaintiff is represented by:
Jay Edelson, Esq.
Benjamin H. Richman, Esq.
EDELSON PC
350 North LaSalle Street, 13th Floor
Chicago, IL 60654
Tel: (312) 589-6370
Fax: (312) 589-6378
Email: jedelson@edelson.com
brichman@edelson.com
- and -
Rafey S. Balabanian, Esq.
329 Bryant Street
San Francisco, CA 94107
Tel: (415) 212-9300
Fax: (415) 373-9435
Email: rbalabanian@edelson.com
- and -
Jeff Raizner, Esq.
RAIZNER SLANIA LLP
2402 Dunlavy Street
Houston, TX 77006
Tel: (713) 554-9099
Fax: (713) 554-9098
Email: efile@raiznerlaw.com
NCAA: Gill Sues Over Effects of Concussion-related Injuries
-----------------------------------------------------------
Garylyn Gill, on behalf of Robert Gill, individually and on behalf
of all others similarly situated, Plaintiff, v. National Collegiate
Athletic Association (NCAA), Defendants, Case No. 20-cv-02095 (S.D.
Ind., August 10, 2020), seeks economic, monetary, actual,
consequential, compensatory, and punitive damages, past, present
and future medical expenses, other out of pocket expenses, lost
time and interest, lost future earnings, litigation and attorney
fees, prejudgment and post-judgment interest, injunctive and/or
declaratory relief and such other and further relief resulting from
negligence, fraudulent concealment, breach of express contract,
breach of implied contract, breach of third-party express contract
and unjust enrichment.
Robert Gill played football at the University of Louisiana at
Lafayette from 1970 to 1974, as a running back. He suffered from
numerous concussions, as well as countless sub-concussive hits as
part of routine practice and gameplay. Gill now suffers from issues
including, but not limited to dementia.
NCAA is an unincorporated association with its principal office
located at 700 West Washington Street, Indianapolis, Indiana 46206.
The NCAA is the governing body of collegiate athletics that
oversees twenty-three college sports and over 400,000 students who
participate in intercollegiate athletics. Gill alleges NCAA knew
about the debilitating long-term dangers of concussions,
concussion-related injuries and sub-concussive injuries that
resulted from playing college football, but did nothing.
Plaintiff is represented by:
Jay Edelson, Esq.
Benjamin H. Richman, Esq.
EDELSON PC
350 North LaSalle Street, 13th Floor
Chicago, IL 60654
Tel: (312) 589-6370
Fax: (312) 589-6378
Email: jedelson@edelson.com
brichman@edelson.com
- and -
Rafey S. Balabanian, Esq.
329 Bryant Street
San Francisco, CA 94107
Tel: (415) 212-9300
Fax: (415) 373-9435
Email: rbalabanian@edelson.com
- and -
Jeff Raizner, Esq.
RAIZNER SLANIA LLP
2402 Dunlavy Street
Houston, TX 77006
Tel: (713) 554-9099
Fax: (713) 554-9098
Email: efile@raiznerlaw.com
NCAA: James Sues Over Effects of Concussion-related Injuries
------------------------------------------------------------
Javarris James and Garry Vujanov, individually and on behalf of all
others similarly situated, Plaintiff, v. National Collegiate
Athletic Association (NCAA), Defendants, Case No. 1:20-cv-02093
(S.D. Ind., August 10, 2020), seeks economic, monetary, actual,
consequential, compensatory, and punitive damages, past, present
and future medical expenses, other out of pocket expenses, lost
time and interest, lost future earnings, litigation and attorney
fees, prejudgment and post-judgment interest, injunctive and/or
declaratory relief and such other and further relief resulting from
negligence, fraudulent concealment, breach of express contract,
breach of implied contract, breach of third-party express contract
and unjust enrichment.
Javarris James played football at the University of Miami from 2006
to 2010 as a running back while Garry Vujanov played from 1969 to
1973 as a guard and center. Both suffered from numerous
concussions, as well as countless sub-concussive hits as part of
routine practice and gameplay. James now suffers from issues
including, but not limited to, short-term memory loss, loss of
concentration, loss of impulse control, depression, emotional
instability, mood swings, and suicidal thoughts while Vujanov
suffers from issues including, but not limited to, suicidal
thoughts, short-term memory loss, loss of impulse control, loss of
inhibition, depression, motor impairment and Parkinson's disease.
NCAA is an unincorporated association with its principal office
located at 700 West Washington Street, Indianapolis, Indiana 46206.
The NCAA is the governing body of collegiate athletics that
oversees twenty-three college sports and over 400,000 students who
participate in intercollegiate athletics. James and Vujanov allege
NCAA knew about the debilitating long-term dangers of concussions,
concussion-related injuries and sub-concussive injuries that
resulted from playing college football, but did nothing.
Plaintiff is represented by:
Jay Edelson, Esq.
Benjamin H. Richman, Esq.
EDELSON PC
350 North LaSalle Street, 13th Floor
Chicago, IL 60654
Tel: (312) 589-6370
Fax: (312) 589-6378
Email: jedelson@edelson.com
brichman@edelson.com
- and -
Rafey S. Balabanian, Esq.
329 Bryant Street
San Francisco, CA 94107
Tel: (415) 212-9300
Fax: (415) 373-9435
Email: rbalabanian@edelson.com
- and -
Jeff Raizner, Esq.
RAIZNER SLANIA LLP
2402 Dunlavy Street
Houston, TX 77006
Tel: (713) 554-9099
Fax: (713) 554-9098
Email: efile@raiznerlaw.com
NESTLE PURINA: Jacquin MMPA Class Suit Remanded to State Court
--------------------------------------------------------------
In the case, KELLEN JACQUIN, KRISTEN SPARKS, and GREGORY WATERS, on
behalf of themselves and all others similarly situated Plaintiffs,
v. NESTLE PURINA PETCARE COMPANY, Defendant, Case No.
4:20-cv-00467-SNLJ (E.D. Mo.), Judge Stephen L. Limbaugh, Jr. of
the U.S. District Court for the Eastern District of Missouri,
Eastern Division, granted the Plaintiff's motion to remand the case
to state court.
The case began in state court alleging Purina violated the Missouri
Merchandising Practices Act ("MMPA") when it falsely represented
that its pet food products are safe and without risk to animals
despite their products containing "alarming amounts" of glyphosate.
The Plaintiffs, who seek to represent a class of similarly
situated pet owners, say they purchased Purina's products in
Missouri without knowing the products contained harmful substances
such as glyphosate; instead, they say they trusted the "Purina
Promise" that its products are tested, safe, and come from quality
sources.
Purina removed the case to the Missouri district court on April 1,
2020 pursuant to the Class Action Fairness Act. The Plaintiffs'
motion seeks to remand the case back to state court for a number of
reasons, but the controlling issue is the timeliness of their
amended complaint.
The Plaintiffs say the District Court "is bound to consider" their
amended complaint because it was filed in state court prior to the
state court receiving notice of removal. Purina, meanwhile, points
out that the Plaintiffs did not file and serve the sham amended
complaint on Purina prior to Purina filing its notice of removal
with the state court. Purina suggests it is a classic "race to the
courthouse" tactic designed to correct a "fatal" flaw in the
Plaintiffs' original complaint.
Judge Limbaugh finds that the case appears to be no different than
Anthony v. Runyon, 76 F.3d 210 (8th Cir. 1996). The Plaintiffs
filed their amended petition before the notice of removal was filed
in state court. Hence the amended petition controls. Although the
Eighth Circuit did not require service of the amended petition, as
opposed to the mere filing of the amended petition, conceivably the
issue was not raised. To be sure, from the perspective of state
law, Missouri Supreme Court Rule 43.01 requires that every pleading
subsequent to the original petition be served on the opposing
party. And from the perspective of federal law, a removing
defendant is required to establish the propriety of removal through
"a short and plain statement" as supported by a copy of all
process, pleadings, and orders served upon such defendant.
On the other hand, it is unclear why the Plaintiffs must go to the
time and expense of enlisting a process server to re-serve
defendant with the amended petition, at least in the context of
removal. The removal statute does not address process, pleadings
and orders" filed but not yet served. Furthermore, assuming service
is required, service arguably was accomplished by the Defendant's
counsel's entry of appearance in the state court case
simultaneously with counsel's filing of the notice of removal. By
the counsel entering appearance, in other words, the counsel -- and
the client -- is charged with notice of everything on record in the
state court file, and service has thus been effected in that way.
It is because an entry of appearance serves the same purpose as if
a summons had been served. These considerations are problematic,
of course, and the parties have not briefed them. In any event,
the Judge is satisfied to follow the precedent in the Anthony
case.
The Defendant does not dispute that remand is appropriate if the
amended petition is the operative pleading. The class then
includes Missouri citizens, not Missouri residents, and CAFA would
not apply. Accordingly, the Jacquin case is remanded to state
court.
A full-text copy of the District Court's June 26, 2020 Memorandum &
Order is available at https://bit.ly/34WeW9T from Leagle.com.
NEW YORK: H.A. Suit Seeks to Certify Rule 23 Class Action
---------------------------------------------------------
In the class action lawsuit captioned as H.A., by her guardians
L.A. and S.A., and L.A. and S.A. individually; P.Y., by her
guardian T.Y., and T.Y. individually; P.M., by his guardians S.M.
and B.M., and S.M. and B.M. individually; M.M., by his guardians
M.M. and D.M., and M.M. and D.M. individually; and C.H., by her
guardians J.G. and C.K., and J.G. and C.K. individually, on behalf
of themselves and all others similarly situated, v. ANDREW CUOMO,
in his official capacity as Governor of the State of New York, and
DR. THEODORE KASTNER, in his official capacity as Acting
Commissioner for The New York State Office For People With
Developmental Disabilities, Case No.1:16-cv-00735-LJV-HKS
(W.D.N.Y.), the Plaintiffs will move the Court for an order
certifying this action as a class action pursuant to Rule 23 of the
Federal Rules of Civil Procedure, and for such other and further
relief as the Court may deem just and proper.[CC]
The Plaintiffs are represented by:
Bruce A. Goldstein, Esq.
KENNEY SHELTON LIPTAK NOWAK, LLP
The Calumet Building
233 Franklin Street
Buffalo, NY 14202
E-mail: bagoldstein@kslnlaw.com
Telephone: (716) 853 3801
- and -
Alexander J. Douglas, Esq.
KENNEY SHELTON LIPTAK NOWAK, LLP
The Powers Building
16 West Main Street, Suite 236
Rochester, NY 14214
Telephone: (585) 232-1911
E-mail: ajdouglas@kslnlaw.com
NORTHROP GRUMMAN: Bafford Appeals C.D. Calif. Ruling to 9th Cir.
----------------------------------------------------------------
Plaintiffs Stephen Bafford, et al., filed an appeal from a court
ruling entered in the lawsuit styled Stephen Bafford, et al. v.
Northrop Grumman Corporation, et al., Case No. 2:18-cv-10219-ODW-E
(Filed Dec. 7, 2018), in the U.S. District Court for the Central
District of California (Los Angeles).
The docket states the nature of suit as Employee Retirement.
The appellate case is captioned as STEPHEN H. BAFFORD, LAURA
BAFFORD, AND EVELYN L. WILSON, on their own behalves and on behalf
of a class of similarly situated participants and beneficiaries, v.
NORTHROP GRUMMAN CORPORATION; ADMINISTRATIVE COMMITTEE OF THE
NORTHROP GRUMMAN PENSION PLA; ALIGHT SOLUTIONS LLC; and FKA Hewitt
Associates LLC, Case No. 20-55222, in the United States Court of
Appeals for the Ninth Circuit.
Northrop Grumman is an American global aerospace and defense
technology company. With 90,000 employees and an annual revenue in
excess of $30 billion, it is one of the world's largest weapons
manufacturers and military technology providers. Alight Solutions
is a business process outsourcing company based in Lincolnshire,
Illinois.[BN]
The Plaintiffs-Appellants are represented by:
Elizabeth Hopkins, Esq.
KANTOR & KANTOR, LLP
19839 Nordhoff Street
Northridge, CA 91324
Telephone: 818 886-2525
- and -
Susan Meter, Esq.
BUTTERFIELD SCHECHTER LLP
10616 Scripps Summit Court
San Diego, CA 92131-3961
Telephone: 858 444-2300
- and -
Teresa Renaker, Esq.
Kirsten Gibney Scott, Esq.
RENAKER HASSELMAN SCOTT LLP
235 Montgomery Street, Suite 944
San Francisco, CA 94104
Telephone: 415 653-1733
Defendants-Appellees Northrop Grumman Corporation and
Administrative Committee of the Northrop Grumman Pension Plan are
represented by:
Nancy G. Ross, Esq.
MAYER BROWN LLP
71 South Wacker Drive
Chicago, IL 60606-4637
Telephone: 312 701-8788
Defendants-Appellees Alight Solutions LLC and FKA Hewitt Associates
LLC are represented by:
Kimberly A. Klinsport, Esq.
Eileen R. Ridley, Esq.
FOLEY & LARDNER LLP
555 S. Flower Street, Suite 3300
Los Angeles, CA 90071-2411
Telephone: 414 297-5404
NUCO2 LLC: Court Denies Renewed Class Cert. Bid in Townhouse Suit
-----------------------------------------------------------------
In the case, TOWNHOUSE RESTAURANT OF OVIEDO, INC. & ESTERO BAY
HOTEL CO., Plaintiffs, v. NUCO2, LLC, Defendant, Case No.
2:19-CV-14085-ROSENBERG/MAYNARD (S.D. Fla.), Judge Robin L.
Rosenberg of the U.S. District Court for the Southern District of
Florida denied the Plaintiffs' Renewed Motion for Class
Certification.
NuCO2, provides CO2, equipment, and related services for beverage
carbonation throughout the continental United States. Its
customers operate businesses like restaurants, bars, breweries, gas
stations, country clubs, hospitals, and universities. NuCO2
currently services roughly 176,000 customer locations in 47 states.
Nationwide, it employs 60 Territory Sales Managers ("TSMs"), who
sign up customers within their respective territories.
Estero Bay is a former NuCO2 customer that operates a hotel and
restaurant in Fort Myers, Florida. It has 50 to 75 employees.
Estero Bay used NuCO2's services until September 2015. Townhouse
remains a NuCO2 customer and operates a restaurant in Oviedo,
Florida. It has 54 employees.
The Plaintiffs have brought claims for breach of contract and for
violation of the Florida Deceptive and Unfair Trade Practices Act
("FDUTPA"). Their claims are all premised upon the Defendant's
practice of calculating certain charges. They have not moved to
certify a class on their breach of contract claims and have instead
only sought certification for their FDUTPA claims. Their FDUTPA
claims, however, are premised upon the parties' contractual
agreements.
The case is about periodic price adjustments. The Plaintiffs and
the Defendant were parties to a contract. In that contract, they
agreed (subject to certain restrictions and conditions) that the
Defendant could periodically adjust and charge certain costs to the
Plaintiffs. The Plaintiffs contend, however, that the methodology
he Defendant used to calculate the charges was deceptive and, in
the Renewed Motion before the Court, the Plaintiffs seek to certify
a nationwide class for every customer of the Defendant that was
affected by the charges.
The Plaintiffs propose certification of the following classes:
a. All individuals and entities in the United States who paid
the standard fuel surcharge to NuCO2 at any time from March 5, 2015
through the date of certification.
b. All individuals and entities in the United States who paid
the standard energy surcharge to NuCO2 at any time from March 5,
2015 through the date of certification.
c. All individuals and entities in the United States who paid
more than their contractually agreed-upon price as a result of an
open escalation price increase from March 5, 2015 through the date
of certification.
NuCO2 argues that the Plaintiffs' proposed classes cannot be
certified for a large number of reasons, however, its arguments may
be divided into two broad categories. NuCO2 argues that the
Plaintiffs' proposed class cannot be certified because the
non-Florida class members must bring their claims under other
states' laws -- not FDUTPA -- and because the Plaintiffs have not
met the requirements of Rule 23(a) and Rule 23(b)(3).
Judge Rosenberg finds that the Plaintiffs fail to establish the
absence of material conflicts between FDUTPA and the laws of other
states, and have conducted no analysis of the variations in state
law. They did not, despite the Court ordering Plaintiff "to more
adequately address the issue of choice-of-law" on March 13, 2020.
Their failure to show the absence of conflicts among other states'
laws is fatal to certifying a nationwide class.
The Judge also finds that the Plaintiffs have not carried their
Rule 23 evidentiary burden of demonstrating that, under Florida's
choice-of-law rules, FDUTPA applies to claims of non-Florida
putative class members. Indeed, the Plaintiffs disregard key
relevant conduct which did not occur in Florida. What was said by
NuCO2's non-Florida employees to its non-Florida customers at their
non-Florida business locations is highly relevant to the question
of whether the "offending conduct" occurred "predominantly" in
Florida. The non-Florida based discussions and negotiations not
only predate any invoice or letter NuCO2 sent after a deal on
services was reached, they provide the backdrop for further
communications between the customer and its TSM, which occur after
a customer is billed the surcharge or after they received a price
increase letter.
Regarding class certification under Rule 23(a), Judge Rosenberg
finds that the Plaintiffs have failed to carry their burden of
establishing commonality. Given the highly individualized nature
of their FDUTPA claims, the Plaintiffs cannot meet their burden.
She also finds that the Plaintiffs' claims are not typical under
Rule 23(a)(3). They have not shown that the interaction between
them and NuCO2 resembles the interaction of any other putative
class member with NuCO2. Estero Bay was not even affected by an
open escalation during the class period. Lastly, the Judge
concludes that the Plaintiffs are not adequate representatives and
they have failed to meet their burden of establishing adequacy.
Regarding class certification under Rule 23(b)(3), Judge Rosenberg
concludes that the Plaintiffs cannot meet the predominance standard
for the same reasons they have not met the commonality standard.
With respect to the second requirement, a class action is not a
"superior" method for adjudication when there is a lack of
predominance of class-based issues. For these reasons, the
Plaintiffs have failed to meet their burden to certify a class
under Rule 23(b)(3).
For the reasons set forth, Judge Rosenberg denied the Plaintiffs'
Renewed Motion for Class Certification.
A full-text copy of the Court's Sept. 9, 2020 Order is available at
https://tinyurl.com/yaf2mf26 from Leagle.com.
NUCO2 LLC: Court Denies Renewed Motion for Class Certification
--------------------------------------------------------------
In the class action lawsuit captioned as TOWNHOUSE RESTAURANT OF
OVIEDO, INC. & ESTERO BAY HOTEL CO., v. NUCO2, LLC, Case No.
2:19-cv-14085-RLR (S.D. Fla.), the Hon. Judge Robin L. Rosenberg
entered an order denying the Plaintiffs' renewed motion for class
certification.
The Court said, "Under [Fed.R.Civ.P.] Rule 23(b)(3), the movant
must establish that questions of law or fact common to class
members (1) predominate over any individual member's questions of
law or fact and (2) that a class action would be superior to other
methods of adjudication. With respect to the first requirement,
predominance is "perhaps the central and overriding prerequisite
for a Rule 23(b)(3) class." The predominance standard is "far more
demanding" than commonality. Thus, the Plaintiffs cannot meet the
predominance standard for the same reasons Plaintiffs have not met
the commonality standard. With respect to the second requirement, a
class action is not a "superior" method for adjudication when there
is a lack of predominance of class-based issues. For these
reasons, the Plaintiffs have failed to meet their burden to certify
a class under Rule 23(b)(3).
The Plaintiffs and Defendant were parties to a contract wherein the
parties agreed (subject to certain restrictions and conditions)
that the Defendant could periodically adjust and charge certain
costs to the Plaintiffs. The Plaintiffs contend, however, that the
methodology the Defendant used to calculate the charges was
deceptive and, in the Renewed Motion before the Court, the
Plaintiffs seek to certify a nationwide class for every customer of
Defendant that was affected by the charges.
The Plaintiffs have brought claims for breach of contract and for
violation of the Florida Deceptive and Unfair Trade Practices Act.
The Plaintiffs' claims are all premised upon the Defendant's
practice of calculating certain charges. The Plaintiffs have not
moved to certify a class on their breach of contract claims and
have instead only sought certification for their FDUTPA claims. The
Plaintiffs' FDUTPA claims, however, are premised upon the parties'
contractual agreements.
Estero Bay is a former NuCO2 customer that operates a hotel and
restaurant in Fort Myers, Florida.
The Defendant provides carbon dioxide, equipment, and related
services for beverage carbonation throughout the continental United
States.
A copy of the Court's Order denying Plaintiffs' Renewed Motion for
Class Certification is available from PacerMonitor.com at
https://bit.ly/33Cm36P at no extra charge.[CC]
OHIO: $151,000 Legal Fees Awarded in Community Refugee Suit
-----------------------------------------------------------
In the case, COMMUNITY REFUGEE AND IMMIGRATION SERVICES, et al.,
Plaintiffs, v. REGISTRAR, OHIO BUREAU OF MOTOR VEHICLES, Defendant,
Case No. 2:18-cv-1189 (S.D. Ohio), Judge Edmund A. Sargus, Jr. of
the U.S. District Court for the Southern District of Ohio, Eastern
Division, granted the Plaintiffs' Motion for Attorney's Fees and
Costs.
On Oct. 5, 2018, the Plaintiffs filed the action seeking
declaratory and injunctive relief against the Ohio Bureau of Motor
Vehicles (BMV) Registrar. In their Complaint, the Plaintiffs
alleged that a Ohio Bureau of Motor Vehicles ("BMV") Registrar
policy which denied driver's licenses to individuals who held valid
refugee admission documents but were admitted to the United States
as refugees more than two years ago violated the Supremacy Clause
of the Constitution, Article VI, and the Equal Protection Clause of
the Fourteenth Amendment to the Constitution.
On Feb. 25, 2020, the Court certified a class under Federal Rule of
Civil Procedure 23(b)(2) consisting of all refugees residing in
Ohio who possessed a valid refugee 1-94 document that was more than
two years old and had not yet adjusted their status to that of a
lawful permanent resident. Additionally, the Court designated
Advocates for Basic Legal Equality, Inc. ("ABEL") and Porter Wright
Morris & Arthur LLP as the class counsel. In the same Order, the
Court granted the Plaintiffs' motion for summary judgment.
The Court held that the BMV's policy was preempted by federal law.
It was unnecessary for the Court to determine whether the policy
also violated the Equal Protection Clause.
The Plaintiffs now move for an award of attorney's fees in the
amount of $151,912 and costs in the amount of $1090.65. The
Plaintiffs contend that they are prevailing parties and thus, they
are entitled to attorney's fees.
The Defendant argues the hours expended were not reasonable
because: (i) Porter Wright attorneys' hours should either be
eliminated or reduced; (ii) ABLE attorneys' hours were inadequately
documented and therefore should be reduced; (iii) hours billed in
regard to expert Pratheepan Gulasekaram should be eliminated; and
(iv) hours worked after the deadline to file a motion for judgment
on the pleadings should be eliminated.
Judge Sargus finds that (i) the Defendant has not shown that Porter
Wright attorneys' hours were unreasonable; (ii) ABEL's time sheets
are detailed enough such that the Court can discern that the hours
were reasonably expended in pursuit of the litigation; (iii) it is
clear that at least parts of Mr. Gulasekaram's expert opinion
related to ultimate legal questions in the case were admissible and
therefore the Plaintiffs are entitled to attorney's fees for work
relating to the expert report; (iv) the Defendant has not shown the
Plaintiffs' counsels' hours were frivolous or not in pursuit of a
successful litigation outcome; and (v) the Plaintiffs have
provided, including the counsels' resumes, declarations, and Mr.
Chandra's testimony, that the rates reasonable.
Using these conclusions, Judge Sargus holds that the Plaintiffs'
counsel's reasonable hours at reasonable rates produce a lodestar
of $150,821.50 ($123,057.50 to ABEL and $27,764 to Porter Wright).
Thus, the Judge concludes that the Plaintiff's requested amount of
$150,821.50 is reasonable under the lodestar analysis and awards
the requested amount.
The Plaintiffs ask for $1,090.65 in costs which includes costs from
deposition transcripts, filing fees, attorney travel costs,
photocopying, and printing. They assert these do not include
attorney travel costs for multiple attorneys when multiple
attorneys attended proceedings. They also assert that these
expenses were reasonable and necessary to prosecuting the
Plaintiffs' claims. The Defendant does not argue against the
reasonableness of these costs. The requested costs do not appear
excessive, the Court finds.
In sum, Judge Sargus granted the Plaintiffs Motion for Attorney's
Fees and Costs and awarded $150,821.50 in attorney's fees and
$1,090.65 in costs.
A full-text copy of the District Court's June 26, 2020 Opinion &
Order is available at https://bit.ly/36X1S6S from Leagle.com.
ORGAIN LLC: Jones Files Suit in Southern District of New York
-------------------------------------------------------------
A class action lawsuit has been filed against Orgain, LLC. The case
is styled as Tracey Jones, individually and on behalf of all others
similarly situated v. Orgain, LLC, Case No. 7:20-cv-08463
(S.D.N.Y., Oct. 9, 2020).
The nature of suit is stated as Other Fraud.
Orgain, Inc., operates as a health supplement store. The Company
offers organic nutritional shakes, protein powder, artificial
sweeteners, bars, and oil.[BN]
The Plaintiff is represented by:
Spencer Sheehan, Esq.
SHEEHAN & ASSOCIATES, P.C.
505 Northern Boulevard, Suite 311
Great Neck, NY 11024
Phone: (516) 303-0552
Fax: (516) 234-7800
Email: Spencer@spencersheehan.com
PVH CORP: Court Dismisses DiCicco Class Suit Without Prejudice
--------------------------------------------------------------
In the case, ROBERT DICICCO, individually and on behalf of all
others similarly situated, Plaintiffs, v. PVH CORPORATION,
Defendant, Case No. 19 Civ. 11092 (ER) (S.D. N.Y.), Judge Edgardo
Ramos of the U.S. District Court for the Southern District of New
York granted PVH's motion to dismiss the complaint.
DiCicco brought the putative class action against the PVH,
asserting claims under the New Jersey Consumer Fraud Act ("NJCFA"),
the New Jersey Truth in Consumer Contract, Warranty and Notice Act,
and the implied covenant of good faith and fair dealing.
Specifically, DiCicco alleges that PVH, a clothing manufacturer,
engages in a sales practice of listing "fictitious" and "inflated"
former prices on price tags of items that have purportedly been
discounted so as to induce consumers into believing that they are
getting a deal.
DiCicco is a resident of New Jersey. PVH, a Delaware apparel
corporation with its headquarters in New York, owns and operates
several Van Heusen outlet stores in New Jersey.
Before filing the instant lawsuit, DiCicco and his counsel had
allegedly made visits to multiple Van Heusen company stores in New
Jersey, on multiple dates, and stores of other retailers that sell
PVH's products such as Kohl's, Macy's and JCPenney, to observe the
extent and frequency of the sales and discounts PVH offers on its
products. DiCicco's counsel had also used a computer program to
track virtually every item offered for sale on those retailers'
websites over the years, the data collected from which purportedly
confirmed that PVH's products are "generally" on sale, and "in most
cases rarely" offered at their regular prices.
DiCicco claims that any savings that he received were illusory
because the discounted prices were effectively the same prices
regularly charged for those items by PVH. He claims that he would
not have paid any money to PVH but for the fraudulent discounted
prices.
DiCicco asserts that PVH's practice of fraudulent price discount
advertising violates the NJCFA, the New Jersey Truth in Consumer
Contract, Warranty and Notice Act, and the implied covenant of good
faith and fair dealing, and seeks both declaratory and injunctive
relief under the New Jersey Declaratory Judgment Act.
DiCicco commenced the instant action on Dec. 3, 2019. That same
day, he also filed a statement of relatedness representing that the
instant action contains identical factual allegations as in
Tripicchio v. PVH Corporation, No. 19 Civ. 5729 (ER) (S.D.N.Y.).
On Jan. 23, 2020, PVH moved to dismiss on the basis that the
complaint fails to state a claim pursuant to Federal Rules of Civil
Procedure 8(a), 9(b), and 12(b)(6).
Each of DiCicco's claims is expressly based on his allegations that
PVH engages in fraudulent price discount advertising by listing
"fictitious" former prices on its products. PVH contends that
DiCicco has not plausibly alleged the circumstances constituting
the fraud with the requisite particularity under the heightened
pleading standards set forth in Rule 9(b).
Judge Ramos agrees. DiCicco has failed to plead facts, plausibly
and with the requisite particularity required by Rule 9(b),
supporting his generalized assertions that PVH engages in a
fraudulent practice of listing fictitious former prices on its
products. This alone warrants dismissal of the instant action
because each of his claims is based on the allegation that PVH
lists fictitious former prices on its products.
Even if PVH's purported practice were pled with the requisite
particularity, PVH contends, as a separate basis for dismissal,
that DiCicco has also failed to plausibly allege that he was
injured by PVH's purportedly false discount pricing. DiCicco has
not alleged that he had to spend additional money as a result of
having bought the Van Heusen products, or that they are worthless.
Accordingly, DiCicco has not alleged an out-of-pocket loss.
DiCicco has also not alleged a loss of the "benefit-of-the-bargain"
because his alleged injury that PVH failed to deliver the discounts
it promised is not one that New Jersey courts have recognized as an
"ascertainable loss." For all the foregoing reasons, his NJCFA
claim must be dismissed, rules the Court.
It is well settled that the New Jersey Truth in Consumer Contract
and Warranty Notice Act ("TCCWNA") does not establish separate
consumer rights or seller responsibilities, but rather bolsters
rights and responsibilities established by other laws. Because
DiCicco's TCCWNA claim is based on his allegation that PVH listed
fictitious former prices for its products, it also fails because he
fails to allege such practice with the required particularity under
Rule 9(b).
To state a claim for breach of the implied covenant of good faith
and fair dealing, a plaintiff must plead "actual injury." The only
injury described is the loss of the promised discounts. Therefore,
for substantially the same reasons, DiCicco's claim for breach of
the implied covenant of good faith and fair dealing must also be
dismissed.
DiCicco's only remaining claim under the New Jersey Uniform
Declaratory Judgment Act seeks relief based on his CFA, TCCWNA and
implied covenant claims, and thus is dismissed as well, Judge Ramos
opines.
Lastly, PVH urges the Court to dismiss each of DiCicco's claims
with prejudice on the basis that it is "inconceivable" that any
amendment could supply the missing facts for either: (1) DiCicco's
failure to allege that he was injured by PVH's conduct; or (2) his
failure to satisfy Rule 9(b) with respect to PVH's purportedly
fraudulent conduct. However, DiCicco has not previously amended
the complaint, and Judge Ramos does not find that amendment would
necessarily be futile. Therefore, the instant action is dismissed
without prejudice and DiCicco is permitted, if he wishes, to file
an amended complaint.
A full-text copy of the Court's Sept. 2, 2020 Opinion & Order is
available at https://tinyurl.com/y5qf9xju from Leagle.com.
RADIUS GLOBAL: Reyes Appeals S.D. Florida Ruling to 11th Circuit
----------------------------------------------------------------
Plaintiff-Appellant Vilma Reyes filed an appeal from a District
Court ruling in the lawsuit titled Vilma Reyes v. Radius Global
Solutions, LLC, Case No. 0:19-cv-61375-RAR, in the U.S. District
Court for the Southern District of Florida.
As previously reported in the Class Action Reporter, the Plaintiff
filed the case under the Fair Debt Collection Practices Act and the
Florida Consumer Collection Practices Act.
The appellate case is captioned as Vilma Reyes v. Radius Global
Solutions, LLC, Case No. 20-10532, in the United States Court of
Appeals for the Eleventh Circuit.
Radius Global is a provider of account recovery and debt
collection, customer relationship management and healthcare revenue
cycle management solutions.[BN]
Plaintiff-Appellant Vilma Reyes, individually and on behalf of all
those similarly situated, is represented by:
Jibrael S. Hindi, Esq.
Thomas J. Patti, Esq.
THE LAW OFFICES OF JIBRAEL S. HINDI
110 SE 6th Street, Suite 1744
Fort Lauderdale, FL 33301
Telephone: 954 907 1136
Facsimile: 855 529 9540
E-mail: jibrael@jibraellaw.com
tom@jibraellaw.com
Defendant-Appellee Radius Global Solutions, LLC, is represented
by:
Dayle Marie Van Hoose, Esq.
Ashley Nicole Wydro, Esq.
SESSIONS FISHMAN NATHAN & ISRAEL, LLC
3350 Buschwood Park Dr., Ste. 195
Tampa, FL 33618
Telephone: 813-890-2460
RBC CAPITAL MARKETS: Coulter Suit to Recover Unpaid Overtime Wages
------------------------------------------------------------------
Brett Coulter, individually and on behalf of all others
similarly-situated, Plaintiff, v. RBC Capital Markets, LLC,
Defendant, Case No. 20-cv-06144, (S.D. N.Y., August 6, 2020), seeks
to recover damages for willful failure to pay for all regular hours
worked, the overtime premium rate for all hours worked in excess of
forty hours in a workweek, penalty damages for failure to provide
the wage notices and pay statements as required by the Fair Labor
Standards Act and New York labor law.
RBC Capital Markets is a global investment bank operating
throughout the United States with a principle place of business New
York, NY where Coulter worked as salesperson. He claims that he was
paid strictly on a commission basis that did not account for
required overtime compensation when he worked in excess of forty
hours in a given workweek. [BN]
Plaintiff is represented by:
Gregory N. Filosa, Esq.
Ariel Y. Graff, Esq.
FILOSA GRAFF LLP
111 John Street, Suite 2510
New York, NY 10038
Tel: (212) 256-1780
Fax: (212) 256-1781
Email: gfilosa@filosagraff.com
agraff@filosagraff.com
RELIASTAR LIFE: Advance Trust May File Second Amended Class suit
----------------------------------------------------------------
In the case, Advance Trust & Life Escrow Services, LTA, as
securities intermediary for Life Partners Position Holder Trust,
and Alice Curtis on behalf of themselves and all others similarly
situated, Plaintiffs, v. ReliaStar Life Insurance Company,
Defendant, Case No. 18-cv-02863 (DWF/ECW) (D. Minn.), Magistrate
Judge Elizabeth Cowan Wright of the U.S. District Court for the
District of Minnesota granted the Plaintiffs' Motion for Leave to
File Second Amended Class Action Complaint.
Advance Trust filed the putative class action on Oct. 5, 2018. A
First Amended Class Action Complaint was filed on Feb. 24, 2020,
which added Curtis as a named Plaintiff and alleged subclasses for
which the Plaintiffs may alternatively seek class certification.
Both the original Complaint and the First Amended Class Action
Complaint alleged a single count for breach of contract.
Specifically, the Plaintiffs alleged that Defendant ReliaStar
breached universal life insurance policies that ReliaStar, or its
predecessors-in-interest, issued by failing to determine cost of
insurance ("COI") rates based solely on expected future mortality
experience and deducting COI charges based on those impermissibly
determined rates. The Plaintiffs alleged that ReliaStar is
obligated by a provision in certain standardized form contracts to
decrease COI rates to reflect improved projected mortality
experience but has not so decreased the rates.
The Court entered a Pretrial Scheduling Order on Feb. 1, 2019. The
Deadlines relating to trial experts, dispositive motions, and trial
were to be addressed following an order on class certification.
The parties stipulated to several amendments to the Scheduling
Order, each time extending the deadlines for class certification
briefing and disclosures regarding pre-class certification experts,
substantial completion of fact discovery, the close of fact
discovery, and the close of pre-class certification expert
discovery.
The current schedule, entered on July 1, 2020, after the June 12,
2020 hearing on the Motion to Amend, sets the following deadlines:
(i) Oct. 23, 2020 -- deadline to file class certification motion
and opening of pre-class certification expert discovery; (ii) Nov.
13, 2020 -- deadline for substantial completion of fact discovery;
and (iii) March 11, 2021 -- close of fact discovery and pre-class
certification expert discovery, including depositions. None of the
amendments extended the original July 12, 2019 deadline for filing
motions seeking to amend pleadings or add parties.
On Jan. 4, 2019, the Plaintiffs requested information related to
COI rates and charges, namely documents showing data over time for
the policies at issue that reflected changes to policy charges,
premiums, and riders and that separately identified amounts of
charges and deductions. They also asked in an interrogatory for
identification of monthly COI rate scales used to determine COI
charges for policies issued on certain policy forms. ReliaStar
served its answer to that interrogatory on March 14, 2019, then
amended its response on July 2, 2019, and amended it again on Nov.
8, 2019. Each response identified documents that contained COI
rate tables, with the amended responses identifying new documents
not previously identified.
In March 2020, the Plaintiffs asked ReliaStar follow-up questions
about the COI rate information that had been produced, including
requesting that ReliaStar identify, on a monthly basis, the amount
"used to calculate the COI and rider charges for Advance
Trust'spolicy, (2) the COI and rider charges deducted, and (3) the
COI and rider rates applied, prompted by the Plaintiffs'
determination that certain produced information could not be
reconciled with other information. In response, on March 26, 2020,
ReliaStar provided a spreadsheet breaking out various data points
for the policy.
The Plaintiffs emailed again on April 20, 2020, asking additional
follow-up questions about the COI tables and notifying ReliaStar
that they planned to amend the complaint to add a breach of
contract claim/class since the rider rates apparently are now also
15% higher than permitted in the policy. On May 4, 2020 ReliaStar
stated that it would not consent to the amendment. The Plaintiffs
then filed the present motion for leave to amend their complaint on
May 21, 2020, attaching their proposed Second Amended Class Action
Complaint.
The proposed Second Amended Class Action Complaint adds allegations
for a new class of policyholders who have been forced to pay
excessive rider charges for their policies. It further alleges
that the policies at issue, including Advance Trust's, provide that
the rider charge is to be calculated using rates specified in the
policies and do not give ReliaStar any discretion to charge rider
rates that diverge from the contractually-specified rates,"but
ReliaStar has imposed overcharges of at least 15% and possibly
more, thus breaching the terms of the policies.
Advance Trust seeks to represent a class of policyholders, the
"Rider Overcharge Class," consisting of "all current and former
owners of universal life (including variable universal life)
insurance policies issued by ReliaStar Life Insurance Company, or
its predecessors, that include a Waiver Rider with a table of
monthly cost for rider." Plaintiff Curtis is not encompassed by
the definition and does not seek to represent the Rider Overcharge
Class. As the Plaintiffs did in their First Amended Class Action
Complaint -- for what they now call the "COI Overcharge Class" --
the Plaintiffs alleged subclasses to the Rider Overcharge Class for
which they may alternatively seek class certification.
In addition to the Plaintiffs' brief in support of its motion and
ReliaStar's brief in opposition, the Court permitted the Plaintiffs
to file a reply brief and ReliaStar to file a sur-reply limited to
the issues of futility and prejudice. The Court held a hearing on
the motion on June 12, 2020.
Magistrate Judge Wright finds that the spreadsheets produced on
March 26, 2020 constitute newly discovered information that could
not have been obtained earlier through the exercise of reasonable
diligence, and that the Plaintiffs were diligent in seeking
amendment after that discovery. ReliaStar made only a passing
reference to Rule 16's good cause standard in its opening brief and
did not argue prejudice separate and apart from the undue prejudice
at issue in connection with Rule 15. The Magistrate concludes that
the extension of the schedule to permit the Motion to Amend will
not prejudice ReliaStar to the extent that it vitiates the
Plaintiffs' showing of good cause based on diligence -- which is
the primary measure of good cause. Moreover, any prejudice imposed
on ReliaStar as a result of the amendment can be cured in part by
an appropriate extension of the pretrial schedule.
The Magistrate Judge also concludes that the Plaintiffs' new claim
is not clearly frivolous and does not place an undue burden on
ReliaStar. The Plaintiffs' rider charge claim based on a series of
separate breaches of an ongoing obligation to charge certain rates
based on the insured's attained age is not clearly frivolous under
Minnesota or Texas law and consequently is not futile. Rather, at
this stage in the proceedings, Plaintiffs have plausibly alleged
such a claim.
ReliaStar has not established that the proposed amendment will
impose an undue burden on it. However, the Magistrate recognizes
that granting the Motion to Amend will expand the scope of
discovery and will permit the parties to seek an appropriate
extension of the schedule to permit ReliaStar adequate time to
prepare its defense to the new claim and the Plaintiffs adequate
time to explore the new claim. In propounding new discovery, the
Plaintiffs should remember their representation to the Court that
ReliaStar will primarily need to produce only two categories of
documents: (1) documents sufficient to prove the rider rates
provided for in the policies at issue (e.g., copies of the subject
policies), and (2) policy-level data, including applicable fields
related to rider rates applied, rider charges, and insureds'
attained ages.
For all of the reasons she stated, Magistrate Judge Wright granted
the Plaintiffs' Motion to Amend.
A full-text copy of the Court's Sept. 2, 2020 Order is available at
https://tinyurl.com/y56b86v5 from Leagle.com.
RON DESANTEZ: Harrison Seeks to Certify Class of Inmates
--------------------------------------------------------
In class action lawsuit captioned as Richard Kelly Harrison II,
pre-trial inmates in the state of Florida, v. Ron Desantez, John
Does 2, and Florida Supreme Court, Case No. 3:20-cv-05807-MCR-HTC
(N.D. Fla.), the Plaintiff asks the Court for an order:
1. certifying a class of:
"pre-trial inmates of the State of Florida"; and
2. appointing class counsel.
A copy of the Plaintiff's Motion to Certify Class is available from
PacerMonitor.com at https://bit.ly/33Ix1I6 at no extra charge.
The Plaintiff appears pro se.[CC]
ROSANN LANDSCAPE: Contreras Suit Moved From New York to Vermont
---------------------------------------------------------------
The case is styled as Jose Barragan Contreras, Juan Alonzo
Orellana, Jorge Yepez, Individually, and on behalf of all others
similarly situated as Class Representatives v. Rosann Landscape
Corp., A.F.A. Management Corp., Ana Maria Birlescu, Case No.
7:17-cv-6453-CS, was transferred from the U.S. District Court for
the Southern District of New York to the U.S. District Court for
the District of Vermont on Oct. 9, 2020.
The District of Vermont Court Clerk assigned Case No. 2:20-mc-00117
to the proceeding.
Rosann Landscape Corp.'s main line of business include landscape
construction.
The Plaintiffs appear pro se.[BN]
ROSENBERG & ASSOCIATES: Weisheit D. Maryland Ruling to 4th Cir.
---------------------------------------------------------------
The Plaintiff filed an appeal from a court ruling entered in the
lawsuit styled Sherry Weisheit v. Rosenberg & Associates, LLC, Case
No. 1:17-cv-00823-JKB (Filed March 27, 2017), in the U.S. District
Court for the District of Maryland (Baltimore).
As previously reported in the Class Action Reporter, Weisheit
brought the action against Defendants Rosenberg and Bayview Loan
Servicing, LLC, in March 2017, alleging violations of the Real
Estate Settlement Procedures Act and its implementing regulations,
and the Fair Debt Collection Practices Act, all resulting from
alleged actions taken by the Defendants in connection with an
attempted foreclosure of the Plaintiff's home in 2017.
The appellate case is captioned as SHERRY WEISHEIT, On Behalf of
Herself and All Others Similarly Situated v. ROSENBERG &
ASSOCIATES, LLC, and BAYVIEW LOAN SERVICING, LLC, Case No. 20-1234,
in the United States Court of Appeals for the Fourth Circuit.
Rosenberg & Associates operates as a legal consulting firm. The
Company offers legal services to clients in all areas of real
estate law and creditor's rights. Bayview Loan Servicing, LLC
provides loan management services. The company offers mortgage loan
management and payment solutions. Bayview Loan Servicing serves the
residential and commercial customers in the united states.[BN]
The Plaintiff-Appellant is represented by:
Fernando Peter Silva, II, Esq.
GOWEN SILVA & WINOGRAD
513 Capitol Court, NE
Washington, DC 20002
Telephone: 202 408-5400
- and -
Jonathan Tycko, Esq.
TYCKO & ZAVAREEI LLP
1828 L Street NW
Washington, DC 20036
Telephone: 202 973-0900
Defendant-Appellee Rosenberg & Associates, LLC is represented by:
Mark David Meyer, Esq.
Sara Nicholson Tussey, Esq.
ROSENBERG & ASSOCIATES, LLC
4340 East West Highway
Bethesda, MD 20814-0000
Telephone: 301 907-8000
Defendant-Appellee Bayview Loan Servicing, LLC is represented by:
John Curtis Lynch, Esq.
Syed Mohsin Reza, Esq.
TROUTMAN SANDERS, LLP
222 Central Park Avenue
Virginia Beach, VA 23462-0000
Telephone: 757 687-7765
RP ON-SITE: Miller Suit Seeks to Certify Three Classes
------------------------------------------------------
In the class action lawsuit captioned as BRIAN MILLER, individually
and on behalf of all others similarly situated, v. RP ON-SITE, LLC,
a Delaware Limited Liability Company with its principal place of
business in California, and DOES 1 to 100, inclusive Case No.
5:19-cv-02114-LHK (N.D. Cal.), the Plaintiff will move the Court on
November 19, 2020 for an order certifying this case as a class
action under Rule 23 of the Federal Rules of Civil Procedure for
these Classes:
a. The Expungement Class:
"all natural persons with an address in the United States
and its Territories about whom, from April 19, 2017 and
continuing through the resolution of this action, the
Defendants prepared a consumer report which included
information regarding one or more criminal case which had
been expunged, sealed, or otherwise removed from public
dissemination at the time the report was prepared";
b. The Disciplinary Infraction Class:
"all natural persons with an address in the United States
and its Territories about whom, from April 19, 2017
continuing through the resolution of this action, the
Defendants prepared a consumer report which included
information regarding one or more administrative action
undertaken by a department of corrections which Defendants
reported as a "felony conviction"; and
c. The Antedated Report Class:
"all natural persons with an address in the United States
and its Territories who were subjects of tenant screening
reports created by Defendants from April 19, 2017 and
continuing through the resolution of this action, that
contained adverse information other than convictions
(including criminal cases that had been expunged, sealed,
set aside, or dismissed) that preceded the report by more
than seven years."
RP On-Site is in the computer related services, N.E.C. industry in
Richardson, Texas.
A copy of the Plaintiff's motion for class certification is
available from PacerMonitor.com at https://bit.ly/2RsjEpE at no
extra charge.[CC]
Counsel for Plaintiff and the Class are:
Mark D. Potter, Esq.
James M. Treglio, Esq.
POTTER HANDY LLP
8033 Linda Vista Road, Suite 200
San Diego, CA 92111
Telephone: (858) 375-7385
Facsimile: (888) 422-5191
E-mail: mark@potterhandy.com
jimt@potterhandy.com
SAGINAW COUNTY, MI: Fox Seeks Class Certification
-------------------------------------------------
In class action lawsuit captioned as THOMAS A. FOX, for himself and
all those similarly situated, v. COUNTY OF SAGINAW, et al., Case
No. 1:19-cv-11887-TLL-PTM (E.D. Mich.), the Plaintiff asks the
Court for an order:
1. certifying a plaintiff class pursuant to Fed. R. Civ. P.
23(a) and 23(b)(3) defined as follows:
"all persons and entities that owned real property in the
following counties, whose real property, during the
relevant time period, was seized through a real property
tax foreclosure, which was worth and/or which was sold at
tax auction for more than the total tax delinquency and
were not refunded the value of the property in excess of
the delinquent taxes owed: Alcona, Alpena, Arenac, Bay,
Clare, Crawford, Genesee, Gladwin, Gratiot, Huron,
Isabella, Jackson, Lapeer, Lenawee, Macomb, Midland,
Montmorency, Ogemaw, Oscoda, Otsego, Presque Isle,
Roscommon, Saginaw, Sanilac, St Clair, Tuscola, and
Washtenaw";
2. appointing E. Powell Miller of The Miller Law Firm PC and
Philip L Ellison of Outside Legal Counsel PLC as Co-Lead
Counsel; and
3. appointing Thomas A. Fox as class representative.
This case concerns "a matter of great public significance and seeks
to remedy a serious wrong." According to the Plaintiff, Counties
throughout Michigan foreclose on parcels when their property taxes
are unpaid. But when the Counties auction the foreclosed parcels,
they keep all of the sales proceeds and destroy any value beyond
the auction price, even if the property's value far exceeds the
amount of the tax delinquency.
The Plaintiff Thomas A. Fox was the owner of residential property
in Gratiot County (the Property), which, like the other Defendant
Counties, has affirmatively elected to administer the tax
foreclosure process instead of allowing the state to administer it.
As of the auction sale, the Property had an outstanding tax
delinquency of $3,091.23. The Defendants seized ownership of the
Property on or about February 21, 2017. At this time, the Property
had a fair market value of at least $50,400.00. The Defendants
later sold the Property at a tax auction on August 16, 2017 for
$25,500.00. The Property had equity -- that is, the difference
between what the Property was worth and the tax delinquency that
Plaintiff owed. The Plaintiff had a property interest in this
equity. But the Defendants seized it and failed to return it. The
Gratiot Defendants retained the entire value of the sales proceeds
even though the sales proceeds were $22,408.77 more than the amount
of the tax delinquency. Throughout, they neither initiated a
condemnation
action nor afforded Plaintiff any process to seek the equity's
return.
Saginaw County, officially the County of Saginaw, is a county
located in the U.S. state of Michigan.
A copy of the Plaintiff's motion for class certification is
available from PacerMonitor.com at https://bit.ly/3chKdat at no
extra charge.[CC]
The Plaintiff is represented by:
Philip L. Ellison, Esq.
OUTSIDE LEGAL COUNSEL PLC
PO Box 107
Hemlock, MI 48626
Telephone: (989) 642-0055
E-mail: pellison@olcplc.com
- and -
Matthew E. Gronda, Esq.
PO Box 70
St. Charles, MI 48655
Telephone: (989) 249-0350
E-mail: matthewgronda@gmail.com
- and -
E. Powell Miller, Esq.
Sharon S. Almonrode, Esq.
Christopher D. Kaye, Esq.
Gregory A. Mitchell, Esq.
THE MILLER LAW FIRM PC
950 W University Drive, Ste 300
Rochester, MI 48307
Telephone: (248) 841-2200
E-mail: epm@millerlawpc.com
ssa@millerlawpc.com
cdk@millerlawpc.com
gam@millerlawpc.com
SALDUTTI LLC: Rankin Appeals E.D. Pa. Decision to Third Circuit
---------------------------------------------------------------
Plaintiffs David Rankin and Dina Rankin filed an appeal from a
court ruling entered in the lawsuit styled DAVID RANKIN AND DINA
RANKIN, INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED
v. SALDUTTI, LLC also known as: SALDUTTI LAW, LLC also known as:
SALDUTTI LAW GROUP, WILLIAM F. SALDUTTI, III, ROBERT L. SALDUTTI,
and CUSTOMERS BANK, Case No. 2-19-cv-01508 (Filed April 9, 2019),
in the U.S. District Court for the Eastern District of
Pennsylvania.
As previously reported in the Class Action Reporter, the nature of
suit is stated as Consumer Credit Other Statutes.
The appellate case is captioned as DAVID RANKIN AND DINA RANKIN,
INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED v.
SALDUTTI LLC, AKA Saldutti Law LLC, AKA Saldutti Law Group; ROBERT
SALDUTTI; and CUSTOMERS BANK, Case No. 20-1355, in the United
States Court of Appeals for the Third Circuit.
Saldutti Law is a creditor's rights attorney specializing in
collections law in South Jersey.[BN]
The Plaintiffs-Appellants are represented by:
Predrag Filipovic, Esq.
1735 Market Street
Mellon Bank Center
Philadelphia, PA 19103
Telephone: 267 265-0520
- and
Kevin Laukaitis, Esq.
Jonathan Shub, Esq.
KOHN SWIFT & GRAF
1600 Market Street, Suite 2500
Philadelphia, PA 19103
Telephone: 215 238-1700
Defendants-Appellees Saldutti LLC, aka Saldutti Law LLC, aka
Saldutti Law Group; and Robert Saldutti are represented by:
Stephen Keim, Esq.
MARSHALL DENNEHEY WARNER
COLEMAN & GOGGIN
2000 Market Street, Suite 2300
Philadelphia, PA 19103
Telephone: 215 575-2696
Defendant-Appellee Customers Bank is represented by:
Joe N. Nguyen, Esq.
Spencer R. Short, Esq.
STRADLEY RONON STEVENS & YOUNG
2005 Market Street, Suite 2600
Philadelphia, PA 19103
Telephone: 215 564-8095
SEAWORLD PARKS: Wins Dismissal of Kouball Class Suit
----------------------------------------------------
In the case, LISA KOUBALL, on behalf of herself, and all others
similarly situated, Plaintiff, v. SEAWORLD PARKS & ENTERTAINMENT,
INC., Defendant, Case No. 20-cv-870-CAB-BGS (S.D. Cal.), Judge
Cathy Ann Bencivengo of the U.S. District Court for the Southern
District of California granted SeaWorld's motion to dismiss the
Plaintiff's complaint.
Plaintiff Kouball filed the putative consumer class action
complaint against Defendant SeaWorld on May 8, 2020. The complaint
asserts claims for: (1) violation of California's Consumers Legal
Remedies Act ("CLRA"); (2) violation of California's Unfair
Competition Law ("UCL"); (3) violation of California's False
Advertising Law ("FAL"); (4) breach of contract; (5) unjust
enrichment; and (6) money had and received.
SeaWorld operates several amusement parks and water parks
throughout the United States, with locations in San Diego, Orlando,
and San Antonio. The Plaintiff alleges SeaWorld offers annual
passes that allow its customers to access its parks on an unlimited
basis.
The Plaintiff purchased four annual passes for SeaWorld's San Diego
location for which she is charged a total of $48.99 per month. In
March of 2020, SeaWorld closed all its parks due to the COVID-19
pandemic. On approximately April 23, 2020, the Plaintiff was
charged the full amount of her monthly payment of $48.99 for her
annual passes even though she did not have access to SeaWorld's
parks due to the closure.
The Plaintiff alleges she signed up for SeaWorld's annual
membership passes with the belief and on the basis that she would
have access to SeaWorld San Diego amusement park at any time during
the month in which she was charged. She further alleges she would
not have paid for the membership had she known that she would not
have access to the park and that SeaWorld continues charging its
customers monthly fees while the parks remain closed.
The Plaintiff seeks to represent a Nationwide class and California
subclass of all persons who were charged annual membership fees for
a period in which SeaWorld's parks were closed. SeaWorld moved to
dismiss the complaint on July 1, 2020. It moves to dismiss on the
grounds that the Plaintiff fails to plead all of her claims with
the required specificity under Federal Rules of Civil Procedure
8(a) and 9(b), fails to state each of her claims as a matter of
law, and lacks standing to seek injunctive relief. The Court held
a telephonic hearing on Sept. 9, 2020.
To the extent Plaintiff's CLRA, UCL, and FAL claims are based on
affirmative misrepresentations by SeaWorld, Judge Bencivengo
dismissed without prejudice the Plaintiff's claims for lack of
standing. She finds that the Plaintiff's allegations fail to
identify any statement made by SeaWorld, which the Plaintiff relied
on, proclaiming the alleged "unlimited access" to its parks. The
Plaintiff merely provides vague and general allegations. The
complaint does not identify when and where she purchased the annual
membership passes, nor does it identify any specific statement that
SeaWorld made that she read, viewed, or heard, that led her to a
belief that she would have unlimited access to the parks.
To the extent the Plaintiff's CLRA, UCL, and FAL claims are based
on an omission by SeaWorld, Judge Bencivengo dismissed without
prejudice the Plaintiff's claims for lack of standing and failure
to allege a duty to disclose any purported omission. The
Plaintiff's theory for a fraudulent omission claim is that SeaWorld
failed to disclose that it would continue charging annual
passholders while the parks were closed and that only SeaWorld was
privy to this fact. The Plaintiff failed to allege SeaWorld knew
or should have known, of the existence of any material fact that it
should have disclosed. SeaWorld, like the rest of the world, would
not have been aware it would need to temporarily close its parks
due to an unprecedented global pandemic. Moreover, such temporary
closures were likely required under state or local orders and the
decision on how to charge customers or provide other relief would
be dependent on the agreements between them.
Even if the Plaintiff adequately alleged actual reliance on a
misrepresentation or omission to establish standing, SeaWorld
contends the Plaintiff's CLRA, UCL, and FAL claims still fail
because the complaint does not identify with sufficient
particularity any statement or purported omission by SeaWorld.
Judge Bencivengo holds that by agreeing to purchase the annual pass
the Plaintiff would have agreed to allow for a temporary closure
without notice. Beyond the footnote cite to SeaWorld's website,
the complaint fails to identify what SeaWorld said, where and when
it said it, or how it is false. Nor does the complaint include any
facts on when and where Plaintiff purchased the passes.
Accordingly, the Plaintiff's CLRA, UCL, and FAL claims based on
affirmative misrepresentations are dismissed without prejudice for
failure to state a claim.
Judge Bencivengo continues to follow the reasoning by the
California Supreme Court in Fairbanks v. Superior Court, that the
Consumers Legal Remedies Act applies only to transactions for the
sale or lease of consumer 'goods' or 'services' as those terms are
defined in the act. The annual passes merely allow access to
SeaWorld's parks, and do not qualify as "services" in the Court's
view. Accordingly, the Plaintiff's CLRA claims are dismissed with
prejudice. Likewise, her UCL claims, to the extent they are
premised on a violation of the CLRA, are also dismissed with
prejudice.
As to breach of contract, the Plaintiff has alleged the existence
of a contract with SeaWorld and performance, via her purchase of
the annual passes. However, her allegations on the substance of
the terms of the contract remain vague and conclusory. She
purchased the annual passes with a belief she would have unlimited
access to the parks. Yet, she does not support that belief with
any sufficient factual support. Instead, the website citation that
the Plaintiff provided contained terms that would dispute her
allegation. Accordingly, the Plaintiff's breach of contract claim
is dismissed without prejudice, rules Judge Bencivengo.
Finally, the Plaintiff does not allege a quasi-contractual theory.
She maintains there is a valid, enforceable contract through the
purchase of the annual passes. Therefore, any amendment to these
claims would be futile and the Plaintiff's request for recovery
under unjust enrichment and money had and received are dismissed
with prejudice.
For the reasons discussed, Judge Bencivengo granted SeaWorld's
motion to dismiss. The Plaintiff's claims are dismissed as
follows: (i) Plaintiff's CLRA, unjust enrichment, and money had and
received claims are dismissed with prejudice; (ii) her UCL and FAL
claims based on an omission by SeaWorld, are dismissed without
prejudice; (iii) the Plaintiff's UCL and FAL claims based on an
affirmative misrepresentation by SeaWorld are dismissed without
prejudice; (iv) her injunctive relief claim is dismissed without
prejudice; and (v) the Plaintiff's breach of contract claim is
dismissed without prejudice.
The Plaintiff was directed to file an amended complaint by Sept.
23, 2020. Failure to do so will result in a final judgment of
dismissal. SeaWorld must respond to any amended complaint within
the time required by the applicable rules.
A full-text copy of the Court's Sept. 9, 2020 Order is available at
https://tinyurl.com/yb2hy9ck from Leagle.com.
SGS NORTH AMERICA: Tamimi Suit Seeks to Certify Class Action
------------------------------------------------------------
In class action lawsuit captioned as JD TAMIMI, individually and on
behalf of all others similarly situated, v. SGS NORTH AMERICA,
INC., a corporation; and DOES 1-20, inclusive, Case No.
8:19-cv-00965-PSG-KS (C.D. Cal.), the Plaintiff asks the Court for
an order:
1. certifying the case as a class action;
2. appointing himself as class representative; and
3. appointing his attorneys as class counsel.
SGS North America, Inc. provides consultancy services.
A copy of the Motion for an Order Certifying Class Action is
available from PacerMonitor.com at https://bit.ly/32NzP7b at no
extra charge.[CC]
The Plaintiff is represented by:
Kashif Haque, Esq.
Samuel A. Wong, Esq.
Jessica L. Campbell, Esq.
Suren N. Weerasuriya, Esq.
AEGIS LAW FIRM, PC
9811 Irvine Center Drive, Suite 100
Irvine, CA 92618
Telephone: (949) 379-6250
Facsimile: (949) 379-6251
E-mail: khaque@aegislawfirm.com
swong@aegislawfirm.com
jcampbell@aegislawfirm.com
sweerasuriya@aegislawfirm.com
SIMPSON STRONG-TIE: $85,203 Sanction Awarded in Nguyen Suit
-----------------------------------------------------------
In the case, SIMON NGUYEN, et al., Plaintiffs, v. SIMPSON
STRONG-TIE COMPANY, INC., et al., Defendants, Case No.
19-cv-07901-TSH (N.D. Cal.), Magistrate Judge Thomas S. Nixon of
the U.S. District Court for the Northern District of California
granted the Defendants' Motion for Sanctions Pursuant to Federal
Rule of Civil Procedure 11.
The Plaintiffs brought the putative class action alleging that
Defendants Simpson Strong-tie and Simpson Manufacturing, Inc.
concealed from consumers that its construction connectors and
fasteners prematurely corrode and fail, requiring costly repairs
and causing danger to homeowners whose homes are equipped with the
products.
The original Plaintiffs in the action were Cary W. Cooper and Terri
G. Cooper, Georgia residents who own a home in Florida, and
Fernandina Beach, a Florida limited liability company that owns
property in Florida. They filed their Original Complaint ("OC") on
Dec. 2, 2019. The gist of their action was that some of Simpson's
products, a range of construction connectors and fasteners designed
to provide homes structural support against strong winds and
seismic activity, are defective and corrode prematurely, causing
the Product to fail well before its reasonable useful life, putting
homeowners at risk and requiring costly repairs.
The Plaintiffs alleged that Simpson knew of the defect but omitted
or concealed it, intentionally misleading customers about the
quality and durability of the Product and its ability to secure and
stabilize structures, to induce them and the Class Members to
purchase the Product. According to Plaintiffs, Simpson described
the Product in such a way that a reasonable consumer would expect
the Product to last the entire life of a home and that the Product
was capable of resisting corrosion and protecting against strong
winds and seismic activity for the entire life of the home.
The Plaintiffs asserted nine causes of action: unfair competition,
or unfair or deceptive acts or practices, in violation of the
California Consumers Legal Remedies Act; unlawful business
practices in violation of the California unfair competition law
("UCL"); unfair business practices in violation of the UCL; a
violation of Florida's Deceptive and Unfair Trade Practices Act;
breach of express warranty; breach of implied warranty of fitness;
breach of implied warranty of merchantability; negligence; and
fraud through non-disclosure or concealment.
On Feb. 4, 2020, Simpson sent a letter to the Plaintiffs' Counsel
notifying them that it believed they had violated Rule 11 of the
Federal Rules of Civil Procedure in filing their OC. Simpson
proffered that the Counsel had either failed to investigate the
factual basis for the claims it made in the OC, or purposefully
determined to mislead the Court regarding the warnings,
recommendations, and guidelines Simpson provides in connection with
the products that are the subject of the Complaint. It asserted
there was no factual basis for the Plaintiffs' allegations.
Simpson pointed out that its 2001 website and its 2016 High
Wind-Resistant Construction Application Guide, each of which the
Plaintiffs referenced in their OC, both provided explicit corrosion
warnings.
Simpson also filed its Motion to Dismiss the OC on February 4. It
argued for dismissal on a number of grounds, the broadest being
that all nine of the Plaintiffs' causes of action were implausible
because Simpson's corrosion warnings contradicted Plaintiffs'
allegations that it failed to provide such warnings, and because
the Plaintiffs did not allege that they or anyone else followed
Simpson's recommendations, guidelines, and warnings concerning its
products.
Instead of filing an opposition to the First Motion, the Plaintiffs
filed their Fits Amended Complaint on Feb. 25, 2020. The FAC added
two California Plaintiffs, Simon Nguyen and Thoai Doan, who own a
home in California. Although the FAC now acknowledged Simpson's
corrosion warnings, the Plaintiffs' factual allegations remained
largely the same as the OC. Whereas the Plaintiffs had alleged
that Simpson failed to disclose the Product defect, they now
alleged that Simpson had failed to "adequately" disclose that the
product would corrode even when selected and installed pursuant to
Simpson's instructions and guidelines. And they asserted the same
nine causes of action.
Simpson filed its Motion to Dismiss the FAC ("Second Motion" or
"MTD") on March 17, 2020. Simpson argued that the Plaintiffs'
re-worked allegations that despite the corrosion warnings Simpson
failed to adequately warn consumers lacked plausibility and thus
Plaintiffs' claims did as well.
On March 19, 2020, Simpson served a copy of its Sanctions Motion
along with a cover letter ("Second Rule 11 Letter") again asserting
the reasons why Simpson believed it would be entitled to sanctions.
Simpson proposed that the Parties meet and confer regarding the
issues it identified in that letter and their Sanctions Motion.
The Parties met and conferred on April 3, 2020. They agreed to
stipulate to strike from the FAC the inaccurate allegation of the
Simpson employee's purported admission. Simpson invited the
Plaintiffs' counsel to provide more information regarding the
Plaintiffs' position on the other matters raised in the Second Rule
11 Letter, but the Plaintiffs' counsel declined to do so. Instead,
the Plaintiffs' counsel indicated that the Plaintiffs might propose
certain amendments to the FAC in connection with their opposition
to Simpson's MTD. Simpson waited to file its Sanctions Motion to
see if the Plaintiffs might seek to amend the FAC to resolve some
of the issues Simpson had raised, but the Plaintiffs did not.
On May 1, 2020, Simpson filed its Sanctions Motion. The Court
granted Simpson's MTD on May 15 and dismissed the FAC based on most
of the grounds Simpson had asserted. The Plaintiffs filed their
Opposition to the Sanctions Motion the same day. ECF No. 54. On May
22, Simpson filed its Reply. The Court granted the Plaintiffs
leave to file a supplemental brief, which they filed on June 17,
and Simpson filed an opposition to the supplemental brief on June
23.
Judge Nixon holds that it is one of those exceptional cases where
Rule 11 sanctions are warranted. The Counsel either failed to
conduct a competent inquiry into the facts necessary to support the
claims in the FAC or didn't bother including them, which is the
flip side of the same coin. As a result, the FAC was factually
baseless. The Counsel insisted on doubling down on certain
allegations even after it became apparent that they were untenable.
And by cherry-picking from the Application Guide and Website while
simply ignoring the content of the corrosion warnings, and then
later arguing that that evidence was inadmissible, the Counsel
demonstrated an abuse of the judicial process and indifference
toward judicial resources, and unnecessarily drove up litigation
costs. Not only that, Simpson gave Counsel multiple opportunities
and ample time in which they could have remedied these
shortcomings. In light of all this, sanctions are appropriate. An
award of attorneys' fees is the necessary deterrence.
Simpson requests $170,403.77 in attorneys' fees and costs: 160.30
hours billed preparing the MTD and related papers, for a total of
$100,674.18; and 129.7 hours billed preparing the Sanctions Motion
and related papers for the remaining $69,729.59. Simpson's counsel
billed Simpson at the following rates: Erick C. Howard at a rate of
$637 per hour through March 2020 and $676.20 per hour after March
2020; Joseph V. Mauch at a rate of $597.80 per hour through March
2020 and $627.20 per hour after March 2020; and Felicia A. Draper
at a rate of $563.50 per hour through March 2020 and $578.20 per
hour after March 2020. Simpson does not seek recovery of fees
billed by other timekeepers, such as a senior partner, a junior
associate, and a paralegal.
Judge Nixon finds the rates are reasonable. But, because Simpson
has not provided a detailed accounting of what hours were spent on
specific tasks by each attorney, the Judge cannot determine how
much time was spent on particular activities to determine if the
time spent was reasonable. Accordingly, he reduces fee amount for
fees related to the MTD by half, to $50,338.
Concerning the Sanctions Motion, Simpson's counsel states that they
billed 129.7 hours preparing that and related papers for a total of
$69,729.59. Even though they argued the Sanctions Motion well and
ultimately prevail as well, the amount also seems excessive.
Because he again cannot tell how much time was spent on particular
activities, the Judge reduces the amount by half, to $34,865, for a
total amount of fees of $85,203.
For the reasons he stated, Judge Nixon granted the Defendants'
Motion for Sanctions. Monetary sanctions in the amount of $85,203
are awarded in favor of the Defendants and against the Plaintiffs'
Counsel. The firms of the Plaintiffs' Counsel are jointly and
severally liable for that amount.
A full-text copy of the Court's Sept. 2, 2020 Order is available at
https://tinyurl.com/y397zxq9 from Leagle.com.
SIMPSON STRONG-TIE: 3 References Struck from Amended Nguyen Suit
----------------------------------------------------------------
In the case, SIMON NGUYEN, et al., Plaintiffs, v. SIMPSON
STRONG-TIE COMPANY, INC., et al., Defendants, Case No.
19-cv-07901-TSH (N.D. Cal.), Magistrate Judge Thomas S. Nixon of
the U.S. District Court for the Northern District of California
granted in part and denied in part the Defendants' motion to strike
as immaterial or improper a number of allegations in the Second
Amended Class Action Complaint ("SAC").
The Plaintiffs brought the putative class action alleging that the
Defendants' metal hurricane straps, which are installed in or on
their homes, prematurely corrode and fail, rendering them incapable
of protecting their homes. They assert violations of the
California Consumers Legal Remedies Act, California Unfair
Competition Law, and the Arizona Consumer Fraud Act, as well as
claims for breach of express warranty, negligent misrepresentation,
and fraud.
The Plaintiffs allege that Defendants Simpson Strong-Tie and
Simpson Manufacturing Co., Inc. developed, manufactured,
advertised, sold, and distributed galvanized metal hurricane straps
for embedment at concrete foundations edges in buildings and homes
throughout the United States. Some of these straps are installed
in the Plaintiffs' homes. The Plaintiffs allege that the Products
have inherent defects that are substantially certain to result in
failures during the Products' useful life. They allege that
Simpson has actively concealed the defects from consumers.
Simpson seeks to strike from the SAC various allegations on the
grounds that the allegations either: describe settlements in prior
litigation despite Federal Rule of Evidence ("FRE") 408's
prohibitions on the use of prior settlements as evidence; reference
changes Simpson made in its literature in violation of Federal Rule
of Evidence 407's prohibition on the use of evidence of subsequent
remedial measures; or cite to a previously-filed expert declaration
despite the fact that Federal Rule of Civil Procedure 10(c) and
related caselaw preclude citations to expert declarations in a
complaint. Simpson seeks an order striking these allegations or
references as immaterial or improper pursuant to Federal Rule of
Civil Procedure 12(f).
The Plaintiffs have filed an Opposition to the motion.
Magistrate Judge Nixon finds that the allegations regarding the
purported settlements have nothing to do with Simpson's state of
mind, prior knowledge, fraud, and intent, let alone involve
Simpson. In other words, the Plaintiffs' references to purported
settlements have no possible bearing upon the subject matter of the
litigation. Whether or not the Plaintiffs included the settlement
allegations in an attempt to mislead (Simpson argues that they
did), they are impertinent and immaterial and inappropriate, and
the Judge will strike them.
Next, the Simpson next challenges several allegations in the SAC
relating to changes in Simpson's definition of "Interior Dry
Service." It argues that these allegations are impermissible
because they relate to subsequent remedial measures. The
Plaintiffs counter that these allegations are not remedial at all,
"that all of Simpson's specifications and statements.
It is possible that the Plaintiffs would use evidence related to
the "Interior Dry Service" definition in ways that wouldn't run
afoul of Rule 407. The range of permissible uses of evidence of
remedial measures is much broader than the scope of the
exclusionary rule. But at this point, the Judge finds it too early
to tell, so striking the allegations is not necessary or
appropriate. Now, they're still just allegations; if at some point
down the line, the Plaintiffs try to introduce evidence of remedial
efforts in a way that violates Rule 407, Simpson can challenge the
use then, when the Court is better apprised of the circumstances
and can rule on the admissibly of that evidence.
Lastly, Simpson argues that the Court should strike the Plaintiffs'
citations to the expert declaration of Dan R. Werdowatz because
they are impermissible under Federal Rule of Civil Procedure 10.
Under Rule 10(c) and caselaw, the Court has no reason to and will
not consider Werdowatz's expert declaration. The Plaintiffs argue
that they included citations to Werdowatz's declaration to
"buttress" their allegations concerning the Products' intended
design, use, installation, and useful life.
Whether or not that allegation, along with the plethora of other
new allegations in the SAC, helps the SAC survive a challenge to
the pleadings has not yet been tested. They are still at the
motion to dismiss stage: either the Plaintiffs have alleged enough
to survive a motion to dismiss or they have not. There is no
reason for them to include an expert declaration, because the Court
did not and will not decide whether the Plaintiffs' allegations are
truthful or supported by evidence. And because the Court must
generally assume the truth of all material factual allegations in a
complaint, averments in an expert affidavit carry no additional
probative weight merely because they appear within an affidavit
rather than numbered paragraphs of the complaint.
Nevertheless, although he will strike references to Werdowatz's
declaration, Magistrate Judge Nixon does not find it appropriate to
strike the allegations in the SAC which were derived from that
declaration. Regardless of the source of the information or belief
upon which the Plaintiffs make those allegations, they are allowed
to make them; Simpson can challenge them later on. Simpson
concedes that the allegations "need not be stricken," but argues
they are "conclusory statements of opinion" which carry no
additional probative weight and are not entitled to a presumption
of truth. To the extent the allegations are merely conclusory they
will be entitled to no weight, and the Court will treat the
allegations like every other allegation in the complaint.
For the foregoing reasons, Magistrate Judge Nixon granted in part
and denied in part Simpson's Motion to Strike. The following
references and text are stricken from the SAC (All citations to ECF
No. 61-2):
a. "According to a structural engineer licensed in California
for thirty-five years who has analyzed and specified Simpson
products for decades, and whose declaration was previously filed in
this case at ECF Document 61-2, Paragraph 67";
b. "Ultimately, the Ocean Pointe case resolved for tens of
millions of dollars, most of which funded a repair program to
install new anchor bolt holdown systems to replace tens of
thousands of defective and corroding HD Strap-Tie Holdowns and MAS
Mudsill Anchors embedded in 1,628 Ocean Pointe homes, Paragraph
127"; and
c. "Ultimately, the Ewa by Gentry case resolved for tens of
millions of dollars, most of which funded a repair program to
install new anchor bolt holdown systems to replace tens of
thousands of defective and corroding HD Strap-Tie Holdowns and MAS
Mudsill Anchors embedded in 2,136 Ewa by Gentry homes, Paragraph
129."
A full-text copy of the Court's Sept. 2, 2020 Order is available at
https://tinyurl.com/y6nvh4rs from Leagle.com.
SLEEPY'S LLC: Denial of Class Certification in Hargrove Reversed
----------------------------------------------------------------
The U.S. Court of Appeals for the Third Circuit reversed the
District Court's denial of a renewed motion for certification in
the case, SAM HARGROVE; ANDRE HALL; MARCO EUSEBIO, individually and
on behalf of all others similarly situated, Appellants, v. SLEEPY'S
LLC, v. I STEALTH LLC; EUSEBIO'S TRUCKING CORP.; CURVA TRUCKING
LLC, Case No. 19-2809 (3d Cir.).
Sleepy's was a New York-based mattress retailer. Deliveries were
an integral part of its business, and so it created a comprehensive
delivery process to meet its customer needs. Sleepy's operated a
large warehouse in Robbinsville, New Jersey, that it used to
deliver mattresses. It ran 50 to 60 trucks daily, and as many as
85 to 90 each day during peak season.
The Appellants (the three named Plaintiffs in the proposed class
action) are individuals who performed mattress deliveries for
Sleepy's. To work for Sleepy's, they had to sign a standardized
Independent Driver Agreement ("IDA"). Each IDA required that the
deliverers could not perform any other business while on duty with
Sleepy's. Sleepy's enforced these provisions; in at least one
instance, it penalized a driver because he made a delivery for
another business while he was delivering Sleepy's product.
Some drivers in the proposed class signed IDAs on their own behalf
and others signed on behalf of their corporate entity or "carrier."
The Appellants testified that individual drivers were required to
form business entities as a condition of their employment with
Sleepy's. This was true even if the business entity consisted of
one driver and one truck. Appellants testified that, although there
were some drivers who owned or operated two or three trucks at a
time, most proposed class members operated one truck for
significant stretches of time. Several drivers who operated more
than one truck testified that they drove one of their trucks full
time, and a relative or an associate drove the other.
Sleepy's emphasizes that the IDA did not obligate it to pay wages
to a carrier's individual owners or workers. It paid each carrier
for all the deliveries the carrier performed as a whole. It also
points out that, where carriers were not one-person limited
liability companies, their owners did not necessarily drive the
truck, and that there were signers to IDAs who did not provide
delivery services to Sleepy's on a full-time basis.
The Appellants brought an employee misclassification suit and
sought certification as a class of Sleepy's delivery drivers. They
alleged that Sleepy's misclassified them as independent
contractors; because they are actually employees of Sleepy's, it
violated the New Jersey Wage Payment Law, by making deductions from
their pay for, among other things, damage claims, uniforms,
customer claims, and other fines. Also, Sleepy's allegedly
violated the New Jersey Wage and Hour Law, by failing to pay
Appellants overtime when they worked more than 40 hours in a week.
The Appellants filed their class action complaint in March 2010.
After preliminary discovery, the District Court granted Sleepy's
motion for summary judgment. The Appellants appealed to the Court,
and in May 2015, it vacated and remanded so that the District Court
could apply the proper test adopted by the New Jersey Supreme Court
in response to a certified question from it. On remand, the
parties filed partial cross-motions for summary judgment on whether
the named Plaintiffs were employees or independent contractors.
The District Court granted the Appellants' motion and denied
Sleepy's motion, holding that the three named Plaintiffs were
employees of Sleepy's. The District Court has already held on
summary judgment that the named Plaintiffs were misclassified as
independent contractors and instead are employees of Sleepy's. The
issues of class certification and damages were not decided.
The Appellants thereafter filed their first motion for class
certification for a proposed class of 193 individuals who
contracted with Sleepy's and performed deliveries on a full-time
basis. In February 2018, however, the District Court denied their
motion without prejudice, holding that the Appellants had not
demonstrated the ascertainability of the proposed class.
The Appellants filed a renewed motion for certification of a class
of only the 111 individuals who performed deliveries on a full-time
basis and who drove one truck for Sleepy's. Those individuals
included 73 drivers who ran only one truck for Sleepy's, and an
additional 38 drivers who ran one truck for at least six months
even though they operated more than one truck on other occasions.
The District Court denied the renewed motion for class
certification in May 2019.
The Appellants thereafter sought leave to appeal the District
Court's denial pursuant to Fed. R. Civ. P. 23(f), and the Court
granted their request. They argue that the District Court erred in
treating their renewed motion for class certification as a motion
for reconsideration, and that it instead should have treated it as
an independent motion for class certification.
The Third Circuit reviews the District Court's denial of a renewed
motion for certification of a proposed class of drivers who
performed deliveries on a full-time basis using one truck for
mattress retailer Sleepy's. It held that the class was not
ascertainable. In addition to all the other requirements for class
actions in Federal Rule of Civil Procedure 23, the Court requires
that a Rule 23(b)(3) class also be "currently and readily
ascertainable." The Plaintiffs must show that (1) the class is
defined with reference to objective criteria; and (2) there is a
reliable and administratively feasible mechanism for determining
whether putative class members fall within the class definition.
The Third Circuit reverses the District Court's order holding that
first, the District Court should not have treated the renewed
motion for class certification as a motion for reconsideration. An
order that grants or denies class certification may be altered or
amended before final judgment. Courts cannot graft onto that
provision the heightened motion-for-reconsideration standard
requiring that, in addition to satisfying the typical Rule 23
criteria, plaintiffs show there was a change in controlling law,
new evidence, or a clear error. District courts should treat
renewed motions for class certification as they would initial
motions under Rule 23.
Second, the District Court misapplied the ascertainability case
law. It was too exacting and essentially demanded that the
Appellants identify the class members at the certification stage.
The Third Circuit has held that a plaintiff need not be able to
identify all class members at class certification -- instead, a
plaintiff need only show that class members can be identified. The
Appellants have met that requirement. They submitted thousands of
pages of contracts, driver rosters, security gate logs, and pay
statements, as well as testimony from a dozen class members stating
they were required to work exclusively for Sleepy's full-time.
Affidavits, in combination with records or other reliable and
administratively feasible means, can meet the ascertainability
standard.
The District Court focused on gaps in the records kept and produced
by Sleepy's. But where an employer's lack of records makes it more
difficult to ascertain members of an otherwise objectively
verifiable class, the employees who make up that class should not
bear the cost of the employer's faulty record keeping. To hold
otherwise is in tension with the Supreme Court's decisions in
Anderson v. Mt. Clemens Pottery Co., and Tyson Foods, Inc. v.
Bouaphakeo, which held that employees bringing wage claims can meet
their burdens of proof by producing sufficient evidence to show the
amount and extent of that work as a matter of just and reasonable
inference. Such inferences are necessary to fill an evidentiary
gap created by the employer's failure to keep adequate records.
The Third Circuit extends Tyson Foods and Mt. Clemens to the
ascertainability determination at the class-certification stage and
holds that where an employer has failed to keep records it was
required to keep by law, employees can prove ascertainability by
producing sufficient evidence to define their proposed class as "a
matter of just and reasonable inference."
For the reasons it stated, the Third Circuit reversed the judgment
of the District Court and remanded the case for further proceedings
in accord with its Opinion.
A full-text copy of the Third Circuit's Sept. 9, 2020 Opinion is
available at https://tinyurl.com/yaoh4fek from Leagle.com.
Harold L. Lichten (Argued) -- hlichten@llrlaw.com -- Benjamin J.
Weber -- bweber@llrlaw.com -- Lichten & Liss-Riordan, 729 Boylston
Street, Suite 2000 Boston, MA 02116.
Anthony L. Marchetti, Jr. -- amarchetti@marchettilawfirm.com -- 317
Delsea Drive Sewell, NJ 08080, Counsel for Appellants.
Marc Esterow, Theo E.M. Gould -- tgould@littler.com -- Matthew J.
Hank (Argued) Paul C. Lantis -- plantis@littler.com -- Jonathan L.
Shaw -- jlshaw@littler.com -- Littler Mendelson, 1601 Cherry Street
Three Parkway, Suite 1400 Philadelphia, PA 19102, Counsel for
Appellee.
Peter Winebrake -- pwinebrake@winebrakelaw.com -- Winebrake &
Santillo LLC, 715 Twinning Road Twinning Office Center, Suite 211
Dresher, PA 19025, Counsel for Amicus Appellants The National
Employment Law Project and Towards Justice.
Adam G. Unikowsky, Jenner & Block, 1099 New York Avenue, N.W.,
Suite 900 Washington, DC 20001 Counsel for Amicus Appellees Chamber
of Commerce of the United States of America and New Jersey Civil
Justice Institute.
SOUTHERN SYNERGY: Cornelison Suit to Recover Unpaid Overtime
------------------------------------------------------------
Steven Cornelison, individually and on behalf of others similarly
situated, Plaintiffs, v. Southern Synergy, Inc., Defendant, Case
No. 20-cv-01157 (N.D. Ala., August 11, 2020), seeks to recover
unpaid overtime wages and other damages under the Fair Labor
Standards Act.
Cornelison worked for the Defendant as a Senior Technical
Specialist from approximately July 2012 through December 2019.
Cornelison regularly worked in excess of 40 hours per week with no
overtime compensation, the complaint asserts. [BN]
The Plaintiff is represented by:
Nathan C. VanDerVeer, Esq.
Justin C. Owen, esq.
GOLDASICH, VICK & FULK
2100 3rd Avenue North, Suite 400
Birmingham, AL 35203
Telephone: (205) 731-2566
Fax: (205) 731-9451
Email: nate@golaw.net
justin@golaw.net
- and -
Gabriel A. Assaad, Esq.
MCDONALD WORLEY, PC
1770 St. James Street, Suite 100
Houston, TX 77056
Telephone: (713) 523-5500
Fax: (713) 523-5501
Email: gassaad@mcdonaldworley.com
STITCH FIX: Staff Sues for Denied Breaks, OT Pay, Tips, Refunds
---------------------------------------------------------------
Katherine Bookout-Varner, Sara Lashkari and Jennifer Cordeau, in a
Representative capacity, and on behalf of other members of the
general public similarly situated, v. Stitch Fix, Inc. and Does
1-10, inclusive, Defendants, Case No. 37-2020-00027926 (Cal.
Super., August 10, 2020), seeks redress for failure to provide
required meal/rest periods, overtime and minimum wages, to pay all
wages due to discharged and quitting employees, failure to maintain
and furnish accurate itemized wage statements and failure to
indemnify employees for necessary expenditures incurred in
discharge of duties, and improper retention of gratuities
tip-pooling under California's Unfair Competition Law, California
Labor Code and applicable Industrial Welfare Commission Wage
Orders.
Stitch Fix is an online personal styling service. Bookout-Varner
worked for Stitch Fix from January of 2019 through May of 2020.
Lashkari worked for Stitch Fix from December 2014 through the
present. Cordeau worked for Stitch Fix from August of 2016 through
June of 2020. [BN]
Plaintiff is represented by:
William B. Sullivan, Esq.
Eric K. Yaeckel, Esq.
Ryan T. Kuhn, Esq.
SULLIVAN LAW GROUP, APC
2330 Third Avenue
San Diego, CA 92101
Tel: (619) 702-6760
Fax: (619) 702-6761
Email: helen@sullivanlawgroupapc.com
yaeckel@sullivanlawgroupapc.com
ryan@sullivanlawgroupapc.com
SUNCOKE ENERGY: Wins Dismissal of Consolidated Securities Suit
--------------------------------------------------------------
In the case, IN RE SUNCOKE ENERGY PARTNERS, L.P., Civil Action No.
19-cv-693-CFC (D. Del.), Judge Colm F. Connolly of the U.S.
District Court for the District of Delaware granted the Defendants'
Motion to Dismiss Consolidated Class Action Complaint.
The case is a consolidation of three related actions: Marks v.
Suncoke Energy Partners, L.P., 19-cv-00693-CFC; Zolotarev v.
Suncoke Energy Partners, L.P., 19-cv-01055-CFC; and Cohn v. Suncoke
Energy Partners, L.P., 19-cv-01107-CFC. Lead Plaintiff Michael
Cohn was a unitholder of SunCoke Energy Partners, L.P. ("SXCP"), a
Delaware limited partnership. The sole general partner of SXCP was
SunCoke Energy Partners, G.P. LLC (SXCP GP), a Delaware limited
liability company.
Section 7.9(c) of the partnership agreement that governs SXCP
contains the "safe harbor" provision. The partnership agreement
requires that the Conflicts Committee be comprised of two or more
directors who have no affiliation with or ownership interest in
SXCP GP or SXCP GP's affiliates.
On Feb. 5, 2019, SunCoke Energy, Inc. and SXCP announced an
agreement for SunCoke to acquire all outstanding common units of
SXCP not already owned by SunCoke in a stock-for-unit merger
transaction. The merger was approved by SXCP's Board of Directors
and a majority of the members of the Conflicts Committee. It was
also approved by holders of a majority of the outstanding SunCoke
common shares and SXCP common units. SunCoke indirectly owned a
sufficient percentage of the SXCP common units to approve the
transaction on behalf of the holders of SXCP common units. The
merger closed on June 28, 2019.
The Plaintiffs allege in their Complaint that the Defendants'
actions taken in connection with the merger violated federal
securities laws, the Defendants' obligations under the SXCP
partnership agreement, and Delaware state laws.
Pending before the Court is the Defendants' Motion to Dismiss.
Counts I and II of the Complaint allege that all the Defendants
violated Section 14(a) of the Securities Exchange Act and rules
promulgated pursuant to Section 14(a) by the U.S. Securities and
Exchange Commission. Judge Connolly finds that the Plaintiffs
have not pleaded and cannot plead transaction causation because
their votes were not needed to authorize the merger. It is
undisputed that SunCoke owned a sufficient percentage of SXCP to
approve the transaction on its own. Therefore, the solicitation
materials were not an essential link in the accomplishment of the
transaction. And the parties to a merger agreement reach that
agreement before submitting the S-4 registration statement to the
SEC. Because the Plaintiffs have not pleaded and cannot plead
transaction causation, they have not alleged Section 14(a)
violations.
Count III of the Complaint alleges that members of SunCoke and SXCP
GP's boards of directors violated Section 20(a) of the Exchange
Act. Because the Plaintiffs' Section 20(a) claim is predicated on
their Section 14(a) claims, the Section 20(a) claim fails for the
same reasons the Plaintiffs' Section 14(a) claims are not
cognizable, rules Judge Connolly.
Counts IV through VII of the Complaint allege that SXCP GP and the
members of its board breached their fiduciary duties, contractual
obligations, and the implied contractual covenant of good faith and
fair dealing. The Defendants argue that because SXCP GP complied
with the safe harbor provision in Section 7.9(c) by seeking and
receiving Special Approval from the Conflicts Committee for the
merger, Plaintiffs are barred from alleging these state law claims.
Judge Connolly holds that because the Defendants sought and
received Special Approval for the merger from the Conflicts
Committee, they are entitled to the protection of Section 7.9(c)'s
safe harbor provision and cannot be sued for a breach of SXCP's
partnership agreement or any fiduciary or other duty existing at
law. None of the allegations amount to misleading or deceptive
conduct or call into question the independence of the Conflicts
Committee. Accordingly, the Defendants are entitled to the
protection of the partnership agreement's safe harbor provision.
Count VIII of the Complaint alleges that SunCoke and its directors
aided and abetted breach of contract. Because the Plaintiffs fail
to state a claim for breach of contract, they necessarily fail to
state a claim for aiding and abetting breach of contract, Judge
Connolly opines.
For these reasons, Judge Connolly granted the Defendants' motion to
dismiss.
A full-text copy of the Court's Sept. 9, 2020 Memorandum Opinion is
available at https://tinyurl.com/y7aqa2b6 from Leagle.com.
Michael Van Gorder -- mvangorder@faruqilaw.com -- FARUQI & FARUQI,
LLP, Wilmington, Delaware; Nadeem Faruqi, James M. Wilson, Jr.,
FARUQI & FARUQI, LLP, New York, New York Counsel for Plaintiffs.
Peter J. Walsh, Jr. -- pwalsh@potteranderson.com -- Alan R.
Silverstein -- asilverstein@potteranderson.com -- POTTER ANDERSON &
CORROON LLP, Wilmington, Delaware; S. Mark Hurd, Thomas P. Will,
MORRIS, NICHOLS, ARSHT & TUNNELL LLP, Wilmington, Delaware; David
D. Sterling, Paul R. Elliott, Matthew B. Allen, BAKER BOTTS L.L.P.,
Houston, Texas; Michelle A. Reed, M. Scott Barnard, AKIN GUMP
STRAUSS HAUER & FELD LLP, Dallas, Texas Counsel for Defendants.
SUNY ALBANY: Duguid Discrimination Suit Seeks to Certify Class
--------------------------------------------------------------
In the class action lawsuit captioned as DANIELLE DUGUID, OLIVIA
SCHULTZ, COURTNEY TRUDEAU, JOYCE KAGAN, and TAYLOR WATTS,
individually and on behalf of all those similarly situated, and
GORDON GRAHAM, v. STATE UNIVERSITY OF NEW YORK AT ALBANY, and MARK
BENSON, Case No. 1:17-cv-01092-TJM-DJS (N.D.N.Y.), the Plaintiffs
ask the Court for an order:
1. certifying a class consisting of:
"all present, prospective and future female students who
are harmed by and wish to end SUNY Albany's sex
discrimination in the allocation of athletic participation
opportunities, with respect to Count I of the Second
Amended Complaint against Defendant State University of
New York at Albany for violation of Title IX of the
Education Amendment Act of 1972, 20 U.S.C. section 1861,
et seq. and its implementing regulations, 45 C.F.R.
section 86.41"; and
2. appointing the law firms of Rimon, P.C. and Alvarez,
Gonzalez & Menezes, LLP as class counsel.
The State University of New York at Albany, commonly referred to as
University at Albany, SUNY Albany or UAlbany, is a public research
university with campuses in the New York cities of Albany and
Rensselaer and the Town of Guilderland, United States.
A copy of the Plaintiffs' Motion for Class Certification is
available from PacerMonitor.com at https://bit.ly/33M7XQb at no
extra charge.[CC]
The Plaintiffs are represented by:
Bernays T. Barclay, Esq.
RIMON, P.C.
255 Patroon Creek Boulevard No. 4467
Albany, NY 12206
Telephone: (516) 375-2524
E-mail: buz.barclay@rimonlaw.com
- and -
Carlos F. Gonzalez, Esq.
ALVAREZ, GONZALEZ & MENEZES, LLP
One Flagler Building
14 N.E. 1st Avenue, Suite 1105
Miami, FL 33132
Telephone. (305) 723.1876
Facsimile. (786) 475-7832
E-mail: cfg@algofirm.com
TAKEDA PHARMACEUTICAL: Appeals Decision in American Sales Suit
--------------------------------------------------------------
Brand name drug makers and Defendants Takeda Pharmaceutical Company
Limited, et al., filed an appeal from the District Court decision
dated Jan. 28, 2020, entered in the lawsuit styled as AMERICAN
SALES COMPANY, LLC, on behalf of itself and all others similarly
situated v. TAKEDA PHARMACEUTICAL CO. LTD; TAKEDA AMERICA HOLDINGS,
INC.; TAKEDA PHARMACEUTICALS U.S.A., INC.; TAKEDA DEVELOPMENT
CENTER AMERICAS, INC.; MYLAN, INC.; MYLAN PHARMACEUTICALS, INC.;
ACTAVIS PLC; WATSON LABORATORIES, INC.; RANBAXY LABORATORIES LTD.;
RANBAXY, INC.; RANBAXY PHARMACEUTICALS, INC.; SUN PHARMACEUTICAL
INDUSTRIES LTD.; TEVA PHARMACEUTICAL INDUSTRIES LTD.; and TEVA
PHARMACEUTICALS USA, INC., Case No. 15-cv-3278 (Filed April 27,
2015), in the U.S. District Court for the Southern District of New
York.
The appellate case is captioned as Takeda Pharmaceutical Company
Limited; Takeda America Holdings, Inc.; Takeda Pharamceuticals,
U.S.A., Inc.; and Takeda Development Center Americas, Inc., the
Petitioners, v. Meijer, Inc.; Meijer Distribution, Inc.; and Cesar
Castillo, Inc. and American Sales Company, LLC, on behalf of
themselves and all others similarly situated, the Respondents, Case
No. 20-10532, in the United States Court of Appeals for the Second
Circuit.
This action arose out of an overarching anticompetitive scheme by
Takeda and several of its ostensible generic competitors to
allocate, and unreasonably delay competition in, two related drug
markets--the market for pioglitazone hydrochloride tablets (sold by
Takeda under the brand name ACTOS) and the market for the fixed
dose combination product containing both pioglitazone hydrochloride
and metformin (sold by Takeda under the brand name ACTOplus met).
ACTOS is indicated for the improvement of glycemic control in
patients with Type 2 diabetes, either as either a monotherapy
treatment or a combination therapy consisting of two separate
drugs--pioglitazone hydrochloride together with sulfonylurea,
metformin, or insulin. ACTOplus met is indicated as a fixed dose
combination of pioglitazone hydrochloride and metformin to improve
blood sugar control in adults with Type 2 diabetes who are already
taking ACTOS and metformin separately, or taking metformin alone
and it is not controlling blood glucose at normal levels.
ACTOS became one of Takeda's biggest selling products. By 2011,
ACTOS and ACTOplus met together generated over $3 billion in annual
sales.
According to the complaint, Takeda knew, however, that the products
were vulnerable to a rapid and near-complete loss of sales once
less expensive generic versions entered the market. In order to
delay the onset of generic competition and squeeze more
multi-billion-dollar years out of these products, Takeda devised a
multi-part scheme which it enticed its would-be generic competitors
to join.
American Sales retails grocery stores. The Company distributes
health, seasonal and beauty care items, pharmaceutical products,
and general merchandise. American Sales serves customers in the
United States.
Takeda Pharmaceutical is a Japanese multinational pharmaceutical
and biopharmaceutical company.[BN]
The Plaintiff-Respondent is represented by:
Thomas M. Sobol, Esq.
HAGENS BERMAN SOBOL SHAPIRO LLP
55 Cambridge Parkway
Cambridge, MA 02142
Telephone: 617 475-1950
The Defendants-Petitioners are represented by:
Steven A. Reed, Esq.
MORGAN, LEWIS & BOCKIUS LLP
1701 Market Street
Philadelphia, PA 19103
Telephone: 215 963-5603
TECHSERV CONSULTING: Hartman Seeks Proper Pay Under FLSA
--------------------------------------------------------
Dana Hartman, individually and on behalf of others similarly
situated, Plaintiff, v. TechServ Consulting and Training, Ltd.,
Johnny Randall Staines and Randall Wisenbaker, Defendants, Case No.
20-cv-04055 (S.D. Ohio, August 7, 2020), seeks to recover unpaid
wages, including overtime wages, owed pursuant to the Fair Labor
Standards Act.
TechServ provides consulting and services to the utility industry
where Hartman was assigned to the North American Electric
Reliability Corporation under a Critical Infrastructure Protection
position. Hartman was required to travel to remote jobsites where
he was required to stay overnight at these remote jobsites. He was
paid a per diem to reimburse him for his lodging expenses. However,
TechServ capped pay for travel time at 8 hours per work week,
regardless of the actual time it took to get to the remote
jobsites. [BN]
Plaintiff is represented by:
Greg R. Mansell, Esq.
Carrie J. Dyer, Esq.
Kyle T. Anderson, Esq.
MANSELL LAW, LLC
1457 S. High St.
Columbus, OH 43207
Phone: (614) 610-4134
Fax: (614) 547-3614
Email: Greg@MansellLawLLC.com
Carrie@MansellLawLLC.com
Kyle@MansellLawLLC.com
TOWERS WATSON: Dismissal of Fort Myers Class Suit Reversed
----------------------------------------------------------
In the case, CITY OF FORT MYERS GENERAL EMPLOYEES' PENSION FUND,
and ALASKA LABORERS-EMPLOYERS RETIREMENT TRUST, on behalf of
themselves and other similarly situated former stockholders of
TOWERS WATSON & CO., Plaintiffs-Below, Appellants, v. JOHN J.
HALEY, VALUEACT CAPITAL MANAGEMENT, L.P., and JEFFREY UBBEN,
Defendants-Below, Appellees, Case No. 368, 2019 (Del.), the Supreme
Court of Delaware reversed the Court of Chancery's opinion granting
the Defendants' motion to dismiss.
The appeal arises from the 2016 "merger of equals" between Towers
and Willis Group Holdings Public Limited Co. In June 2015, the two
publicly-traded firms executed a merger agreement with closing
conditioned on the approval of their respective stockholders.
Although Towers had stronger performance and greater market
capitalization, under the agreement's terms, Willis stockholders
were to receive the majority (50.1%) of the post-merger company.
Towers stockholders were to receive a $4.87 per-share special
dividend and would own the remaining 49.9% of the combined company.
Moreover, the consideration per share of Towers stock was below the
unaffected trading price.
Upon the merger's public announcement, several segments of the
investment community criticized the transaction as a bad deal for
Towers and a windfall for Willis. Towers' stock price declined and
Willis' rose in reaction to the news. Proxy advisory firms
recommended that the Towers stockholders vote against the merger,
and one activist stockholder began questioning whether Towers'
management's incentives were aligned with stockholder interests.
The parties questioned whether Towers would be able to obtain
stockholder approval.
Also after announcing the merger, ValueAct Capital Management,
L.P., an institutional stockholder of Willis, through its Chief
Investment Officer, Jeffrey Ubben, presented to John J. Haley, the
CEO and Chairman of Towers who was spearheading the merger
negotiations, a compensation proposal with the post-merger company
that would potentially provide Haley with a five-fold increase in
compensation. Haley did not disclose the proposal to the Towers
Board.
In light of the uncertainty of stockholder approval, Haley
renegotiated the transaction terms to increase the special dividend
to $10 per share. Towers eventually obtained stockholder approval
of the renegotiated merger. The transaction closed in January
2016, and the companies merged to form Willis Towers Watson Public
Limited Co. Haley became the CEO of Willis Towers and was granted
an executive compensation package with a long-term equity
opportunity similar to ValueAct's proposal.
The merger spawned several lawsuits across different jurisdictions.
The matter before the Court arose from separate stockholder
actions that were filed in early 2018 and then consolidated in
April 2018. In the matter, Towers stockholders alleged that Haley
breached his duty of loyalty by negotiating the merger on behalf of
Towers while failing to disclose to the Towers Board the
compensation proposal that, according to the Plaintiffs, would
increase his long-term equity incentive compensation from the
approximately $24 million maximum equity compensation that he could
have earned in his last three years as Towers' CEO to upwards of
$140 million in his first three years as Willis Towers' CEO. The
Plaintiffs alleged that the proposal misaligned Haley's incentives
at a critical juncture in the negotiations, and incentivized him to
seek no more of a dividend than he believed necessary to secure the
Towers stockholders' approval. The Plaintiffs further alleged that
ValueAct and Ubben aided and abetted the breaches of fiduciary
duty.
The Defendants moved to dismiss the complaint on Nov. 16, 2018.
The Court of Chancery dismissed the claims, holding that the
business judgment rule applied because a reasonable board member
would not have regarded the proposal as significant when evaluating
the proposed transaction, and further holding that the Plaintiffs
had failed to plead a non-exculpated bad faith claim against the
Towers directors. In view of its dismissal of the predicate breach
of fiduciary duty claim, the court dismissed the aiding and
abetting claim.
On appeal, the Plaintiffs contend that the Court of Chancery erred
in holding that the executive compensation proposal was not
material to the Towers Board. They argue further that because the
predicate breach of fiduciary duty is adequately pleaded, the
aiding and abetting claim survives as well.
The Appellate Court finds that although the materiality inquiry is
different in the two contexts, it concludes that the allegedly
omitted information would be material in either context. A
reasonable stockholder likely would consider important in deciding
how to vote, information about Haley discussing and receiving the
Proposal amidst deal completion uncertainty, and information
concerning Haley's relationship with ValueAct, and whether that
relationship impaired his ability to negotiate in good faith on
behalf of Towers Watson shareholders. It is evident from the
inquiries Towers received from certain significant stockholders
regarding Haley's discussions with ValueAct.
Next, the Appellate Court concludes that the Plaintiffs adequately
allege that Haley failed to inform the Towers Board of his deepened
interest in the transaction. That Haley kept the Towers Board
generally apprised of negotiations, as the Court of Chancery found,
does not rebut the Plaintiffs' contention that Haley failed to
adequately disclose his self-interest to the Board. Even assuming
that Haley kept the Towers Board generally apprised of the
negotiations, he allegedly did not disclose that he had received
the Proposal and had discussed executive compensation with ValueAct
and Ubben.
The Court of Chancery noted that the Plaintiffs "do not allege that
Haley remained silent" since they allege that Haley had discussed
the Proposal with Wickes. But, Wickes was a Towers officer -- the
Managing Director of Benefits -- and not a Board member. Even
more, the Plaintiffs allege in their Complaint that Board member
and Compensation Committee Chair Ray testified that he would have
wanted to know that Haley was discussing his compensation at the
future company with Ubben and ValueAct, but did not receive such
information, let alone information as to the magnitude of the raise
that Haley stood to receive. Thus, the Plaintiffs have adequately
pleaded that Haley failed to disclose the Proposal to the Towers
Board.
Finally, the Appellate Court concludes that the Plaintiffs have
alleged sufficiently that Haley was materially interested in the
merger, that he failed to disclose his interest in the Proposal to
the Towers Board, and that a reasonable Board member would have
regarded the existence of Haley's material interest as a
significant fact in the evaluation of the merger. Accordingly, she
holds that the Plaintiffs have adequately pleaded their claim for
breach of fiduciary duty against Haley and, thus, the claim will
survive a motion to dismiss.
The Court of Chancery dismissed claims against ValueAct and Ubben
because there was no predicate breach of fiduciary duty pleaded.
To find ValueAct and Ubben liable for aiding and abetting a
fiduciary duty breach, the Plaintiffs must show: (1) the existence
of a fiduciary relationship, (2) a breach of the fiduciary's duty,
(3) knowing participation in that breach by the Defendants, and (4)
damages proximately caused by the breach. Although the Court of
Chancery did not consider the other elements of the claim, the
Plaintiffs suggest that the Court should rule on them in the
appeal. The Appellate Court thinks the better course is for the
Court of Chancery to consider those elements in the first instance.
Accordingly, the Appellate Court directs the Court of Chancery to
consider the aiding and abetting issues on remand.
For the reasons set forth, the Supreme Court of Delaware reversed
the Court of Chancery's opinion, and remanded for proceedings
consistent with its Opinion.
A full-text copy of the Supreme Court of Delaware's June 30, 2020
Opinion is available at https://bit.ly/31nZvGL from Leagle.com.
Michael J. Barry, Esquire -- mbarry@gelaw.com -- Christine M.
Mackintosh, Esquire, Grant & Eisenhofer P.A., Wilmington, Delaware.
Of Counsel: Lee D. Rudy, Esquire, Geoffrey C. Jarvis, Esquire, J.
Daniel Albert, Esquire, Stacey A. Greenspan, Esquire, Kessler Topaz
Meltzer & Check, LLP, Radnor, Pennsylvania, for Appellants.
Raymond J. DiCamillo, Esquire -- dicamillo@rlf.com -- Daniel E.
Kaprow, Esquire, Richards, Layton & Finger, P.A., Wilmington,
Delaware. Of Counsel: Richard S. Horvath, Jr., Esquire, Gavin P.W.
Murphy, Esquire, Paul Hastings LLP, San Francisco, California for
Appellees ValueAct Capital Management, L.P. and Jeffrey Ubben.
Bradley R. Aronstam, Esquire -- baronstam@ramllp.com -- Roger S.
Stronach, Esquire, Ross Aronstam & Moritz LLP, Wilmington,
Delaware. Of Counsel: John A. Neuwirth, Esquire, Joshua S. Amsel,
Esquire, Matthew S. Connors, Esquire, Amanda K. Pooler, Esquire,
Sean Moloney, Esquire, Weil, Gotshal & Manges LLP, New York, New
York for Appellee John J. Haley.
TTEC HEALTHCARE: Arbitration in Beattie FLSA Suit Partly Compelled
------------------------------------------------------------------
In the case, SONDRA BEATTIE, individually and on behalf of all
other similarly situated individuals, and FRANCIS HOUSTON, JR.,
individually and on behalf of all other similarly situated
individuals, Plaintiffs, v. TTEC HEALTHCARE SOLUTIONS, INC., and
TTEC HOLDINGS, INC., Defendants, Civil Action No.
1:18-cv-03098-RM-NRN (D. Colo.), Judge Raymond P. Moore of the U.S.
District Court for the District of Colorado (i) granted in part and
denied in part the Defendants' fourth motion to compel arbitration,
and (ii) granted the Plaintiffs' motion to file an amended
complaint.
Plaintiffs Beattie and Houston filed the lawsuit as a collective
and class action, alleging, among other things, violations of the
Fair Labor Standards Act (FLSA). The Court granted conditional
collective certification, and more than 3,000 other Plaintiffs have
opted into the lawsuit by filing consents to join.
The Court has also granted motions to compel arbitration for 70
Plaintiffs, including the original named Plaintiffs. The parties
stipulated that the Defendants would file a final motion to compel
arbitration by March 16, 2020, and that the Plaintiffs would file a
motion to amend the complaint by April 17, 2020. Those motions
have been filed and briefed.
The Defendants' Fourth Motion to compel argues that 2,487
Plaintiffs who have opted into the case executed arbitration
agreements in the same manner as the 70 former Plaintiffs who have
been compelled to arbitration. In response, the Plaintiffs filed
declarations from 3,391 of those Plaintiffs stating they are
certain that they were never presented with a physical or
electronic copy of an arbitration agreement and that they never
physically or electronically signed or agreed to an arbitration
agreement before or during their employment with the Defendants.
In its previous orders, the Court determined the arbitration
agreements were enforceable. It also determined declarations such
as those described were sufficient to raise a genuine issue
regarding the existence of an agreement to arbitrate. Applying the
principle of the law of the case would seem to dictate the result
in the case.
To the extent the parties contend that the circumstances are
significantly different with respect to the 2,487 Plaintiffs that
are the subjects of the Defendant's latest motion, Judge Moore is
not persuaded. First, the Judge finds that in the context of the
case, the sworn declarations submitted in support of their current
motion are sufficient evidence to support a finding that these
2,487 Plaintiffs entered into arbitration agreements. With respect
to 2,148 of these Plaintiffs, the Plaintiffs have presented adduced
no evidence to the contrary.
Second, the Judge rejects the Plaintiffs' contention that the
arbitration agreements are invalid because the signature block is
blank. The Court has already concluded that the Defendants'
business records were sufficient to establish that similarly
situated Plaintiffs electronically executed the arbitration
agreements.
Third, the Judge also rejects the Plaintiffs' contention that the
Revana agreement is not enforceable. That version of the
arbitration agreement has a clause reserving Revana's right, in its
sole discretion, to modify, amend, adjust, or revise its policies
and guidelines at any time without advance notice. The Plaintiffs
contend that the clause renders the arbitration provision illusory
because the Defendants are free to withdraw unilaterally from the
arbitration agreement. But regardless of whether the arbitration
agreement constitutes one of the Defendants' "policies and
guidelines" subject to the clause described, that is a question to
be resolved by the arbitrator.
Fourth, the Judge is not persuaded by the Defendants' contention
that the declarations of 339 Plaintiffs are insufficient to raise a
genuine issue as to the existence of an agreement between them and
the Defendants. As noted in the Court's previous order, when there
are genuine issues of material fact regarding the making of
agreement to arbitrate, a jury trial on the existence of the
agreement is warranted. Accordingly, the Judge denies the
Defendants' motion to compel with respect to these 339 Plaintiffs
but grants the motion with respect to the remaining 2,148
Plaintiffs included in it.
The Plaintiffs' motion for leave to file an amended complaint was
timely filed in accordance with the parties' stipulation. Although
the Defendants did not waive their right to object to the motion,
the Judge finds their objections lack merit. First, the
Defendants' contention that the Plaintiffs' motion is unduly
delayed is not well taken considering the parties stipulated to the
April 17, 2020, deadline. Second, their contention that that
amendment would be futile is also unavailing. Due to the nature of
the collective action, numerous consents to join were filed and the
collective class grew to over 3,000 opt-in Plaintiffs.
In sum, Judge Moore granted in part and denied in part the
Defendants' fourth motion to compel as stated; and granted the
Plaintiffs' motion to file an amended complaint. A full-text copy
of the District Court's June 26, 2020 Order is available at
https://bit.ly/2SY6RM8 from Leagle.com.
Subsequently, the Plaintiffs have filed an amended complaint on
July 7, 2020.
TULARE COUNTY, CA: Criswell's TRO Bid in Prisoners Suit Partly OK'd
-------------------------------------------------------------------
In the case, CHARLES CRISWELL, et al., Plaintiffs, v. MICHAEL
BOUDREAUX, in his official capacity as Sheriff of Tulare County,
Defendant, Case No. 1:20-cv-01048-DAD-SAB (E.D. Cal.), Judge Dale
E. Drozd of the U.S. District Court for the Eastern District of
California (i) granted the Plaintiffs' application for provisional
class certification, and (ii) granted in part the Plaintiffs'
motion for a temporary restraining order.
On July 29, 2020, the Plaintiffs filed their complaint against the
Defendant, alleging the following five causes of action: (1) 42
U.S.C. Section 1983 claim for violation of the Fourteenth Amendment
of the U.S. Constitution as a result of the Defendant's reckless
failure to act with reasonable care to mitigate the risk posed by
COVID-19 to pretrial detainees; (2) 42 U.S.C. Section 1983 claim
for violation of the Eighth Amendment of the U.S. Constitution by
the Defendant's deliberate indifference to the obvious risks posed
by COVID-19 to prisoners; (3) 42 U.S.C. Section 1983 claim for
violation of the First and Fourteenth Amendments of the U.S.
Constitution as a result of the Defendant's active interference
with the ability of plaintiffs and the proposed class to
meaningfully access the courts; (4) 42 U.S.C. Section 1983 claim
for violation of the Sixth Amendment of the U.S. Constitution by
the Defendant's active interference with the right of the
Plaintiffs and the proposed class to access the assistance of their
criminal defense counsel; and (5) California Civil Code Section
52.1(b) ("Bane Act") claim that the Defendant interfered or
attempted to interfere by threat, intimidation, or coercion with
the rights of the Plaintiffs and the proposed class, including the
right to initiate civil actions under California Penal Code Section
2601(d).
In their complaint, the Plaintiffs challenge the Defendant's
callous indifference to their health and safety and his callow
attempts to prevent them from challenging his unconstitutional
practices in Court. They bring the action to prevent avoidable
illness and death from COVID-19 among people incarcerated at Tulare
County Jails. The Plaintiffs explain in their complaint that their
use of the term Tulare County Jails refers to the five detention
facilities managed by the Tulare County Sheriff's Office: Bob Wiley
Detention Facility ("BWDF"), Main Jail, Men's Correctional
Facility, Adult Pre-Trial Facility ("APTF"), and South County
Detention Facility.
These incarcerated Plaintiffs seek to represent a class defined as
all people who are now, or in the future will be, incarcerated in
Tulare County Jails, including as subclasses: (i) persons confined
pre-trial, (ii) persons confined pursuant to a judgment of
conviction, and (iii) Medically Vulnerable persons confined
pre-trial and pursuant to a judgment of conviction.
The allegations of Plaintiffs' complaint detail tge Defendant's
purported failures to address the threat posed by COVID-19. In
addition, they have alleged several specific instances of
retaliation and intimidation taken against incarcerated people who
challenge these purportedly unconstitutional conditions of
confinement, whether through the internal grievance procedure in
the Jails or by seeking legal assistance and access to the courts.
The Plaintiffs further allege that in response to their counsel's
investigation, the Defendant promulgated a new legal visitation
policy on May 29, 2020 designed to frustrate the ability of
incarcerated people to participate in confidential legal visits in
the Jails. In their complaint, the Plaintiffs allege that
immediate injunctive relief is crucial to restore confidential
legal visits at Tulare County Jails and to cease the Defendant's
ongoing constitutional violations.
On Aug. 12, 2020, the Plaintiffs filed the pending application for
provisional class certification and the pending motion for a
temporary restraining order ("Motion"), seeking a Court order
requiring the Defendant to immediately reduce overcrowding by using
the available space in the Jails to facilitate social distancing;
conduct universal testing to prevent the spread of COVID-19; and
allow confidential attorney visits to proceed immediately without
intimidation or the threat of retaliation. In addition to their
own declarations, the Plaintiffs filed several declarations in
support of their Application and Motion, including declarations
attesting to the conditions of confinement in the Jails from four
pre-trial detainees currently incarcerated in the BWDF.
On Aug. 20, 2020, the Defendant filed his oppositions to the
Application and Motion. In support of his oppositions, the
Defendant filed declarations from officials in the Tulare County
Sheriff's Department ("TCSD") including Captain Gabriel Macias,
Lieutenant Cory Jones), Assistant Sheriff Cheri Lehner, Lieutenant
Cyrena Robles (Doc. No. 15-6), and Undersheriff Tom Sigley. he
Defendant also filed a declaration from Kevin Silveira, the Health
Services Administrator for Wellpath, which contracts with TCSD to
provide medical services in the Jails.
On Aug. 24, 2020, the Plaintiffs filed their replies to the
Defendant's oppositions to the pending Application and Motion. In
further support of their motion, they also filed supplemental
declarations from their attorney Sara McDermott and ACLU
investigator Dylan Verner-Crist.
The Plaintiffs seek to provisionally certify a class defined as all
people who are now, or in the future will be, incarcerated in
Tulare County Jails.
Judge Drozd finds that all four requirements of Rule 23(a) have
been satisfied. He also finds that the Plaintiffs have clearly
satisfied the requirements of Rule 23(b)(2) and provisionally
certifies the Proposed Class. He appoints Plaintiffs Criswell,
Johnson, Ibarra, and Camposeco as the representatives of the class.
Pursuant to Rule 23(g), he also appoints the ACLU Foundation of
Northern California and the law firm Munger, Tolles & Olson as the
class counsel.
Turning to the Plaintiffs' Motion for a Temporary Restraining
Order, Judge Drozd examines whether the Plaintiffs have satisfied
each of the requirements for the issuance of the temporary
restraining order which they seek. He finds that the Plaintiffs
have demonstrated that they are likely to succeed (i) in showing
that those remedies were effectively unavailable to them; (ii) on
the merits of their claim alleging that jail conditions violate
their Eighth and Fourteenth Amendment rights; (iii) on their
deliberate indifference claim under the Eighth Amendment; (iv) on
the merits of their right-to-access claim under the First and
Fourteenth Amendments because they have presented ample evidence
showing that defendant interfered with inmates' access to counsel
and the courts; (v) on the merits of their Sixth Amendment claim;
and (vi) on the merits of their Bane Act claim, which is derivative
to an extent from those claims.
Judge Drozd also finds that (i) the Plaintiffs have shown a
likelihood that they will suffer irreparable harm in the absence of
the requested injunctive relief; (ii) the Plaintiffs have satisfied
their burden to show that the balance of the equities and public
interest weighs in their favor; and (iii) good cause has been shown
for early discovery by the Plaintiffs and authorizes the parties to
serve early discovery in the case.
Based on the foregoing, Judge Drozd pauses to note that at the
conclusion of the hearing on the pending Motion, he encouraged the
parties to meet and confer to determine whether resolution could be
reached as to at least some of the issues discussed above. He did
so because it appeared that there had been a complete lack of
meaningful communication between the parties and that at least some
of these issues should be capable of resolution without the need
for intervention by the Court. Apparently, his hope in that regard
was not well placed. Given the lack of meaningful response by the
Defendant to the Plaintiffs' Motion and to the evidence presented
by the Plaintiffs in support thereof, the Judge is compelled to
issue the Order.
For all of the reasons he stated, Judge Drozd granted the
Plaintiffs' application for provisional class certification. The
provisionally certified class is defined as: All people who are
now, or in the future will be, incarcerated in Tulare County
Jails."
The ACLU Foundation of Northern California and the law firm Munger,
Tolles & Olson are appointed as the class counsel; and Plaintiffs
Criswell, Johnson, Ibarra, and Camposeco are appointed as the class
representatives.
The Judge granted in part the Plaintiffs' motion for a temporary
restraining order. He ordered that, pending a hearing on a motion
for preliminary injunction, the Defendant will be required to take
the following actions:
a. Adopt a policy designed to reduce contacts between
incarcerated people in all common areas, including (but not limited
to) bathrooms, day rooms, yards, and pill lines, and allow for the
possibility of social distancing by inmates. The Defendant will
memorialize the policy in writing and provide a copy of the policy
to the Court and the Plaintiffs' counsel by Sept. 14, 2020.
b. Adopt a policy with regards to masks, including the
provision of masks to inmates and requirements for the wearing of
masks. The Defendant will memorialize he policy in writing and
provide a copy of the policy to the Court and the Plaintiffs'
counsel by Sept. 8, 2020.
c. Memorialize in writing the policy and procedure TCSD
enacted on July 14, 2020 with regards to isolation, quarantine, and
observation, including TCSD's policy for conducing COVID-19
testing. The Defendant will provide a copy of the policy to the
Court and the Plaintiffs' counsel by Sept. 8, 2020.
d. Provide to the Court and the Plaintiffs' counsel, by Sept.
14, 2020, a report detailing TCSD's COVID-19 testing to date. In
addition, the report will provide the number of inmates who have
been tested as a result of Wellpath's screening criteria, how many
of those inmates tested positive, when those tests were conducted,
and in which facility the inmates were incarcerated in at the time
they were tested. The Defendant will also provide a copy of the
current screening criteria being employed at the Jails by Wellpath
and specify when Wellpath began using that current screening
criteria.
e. Ensure that the Plaintiffs' counsel have the ability to
promptly (i.e., within two days) and confidentially communicate via
remote means (i.e., video call) with incarcerated people at the
Jails.
f. Immediately cease requiring inmates to complete
authorization forms as part of the attorney visitation policy
enacted on May 29, 2020 (as revised on June 4, 2020).
g. Provide to the Court and the Plaintiffs' counsel by Sept.
8, 2020, TCSD's revised legal visitation policy in writing.
h. Ensure that no intimidation of or retaliation against
incarcerated people who speak with counsel takes place at the
Jails.
No bond will be required to be posted by the Plaintiffs pursuant to
Rule 65(c) of the Federal Rules of Civil Procedure.
The Judge denied the Plaintiffs' request for leave to serve early
discovery. He denied all other requests for relief in the
Plaintiffs' motion.
The parties were directed to meet and confer and, if possible,
submit a joint proposed briefing schedule and hearing date with
respect to any motion for a preliminary injunction, with that
proposed schedule being submitted to the court no later than Sept.
28, 2020.
The Judge granted the Defendant's motion to supplement his
opposition to the pending Motion. The Defendant is further
notified of his right to apply to the Court for modification or
dissolution of the temporary restraining order, if appropriate and
supported by a showing of good cause, on two days' notice or such
shorter notice as the Court may allow.
A full-text copy of the Court's Sept. 2, 2020 Order is available at
https://tinyurl.com/yymv6v2b from Leagle.com.
TVI INC: Melead Labor Suit Remanded to Orange County Superior Court
-------------------------------------------------------------------
Judge Cormac J. Carney of the U.S. District Court for the Central
District of California, Southern Division, granted the Plaintiff's
motion to remand the case, RICK MELEAD, an individual, on behalf of
himself, and on behalf of the general public similarly situated,
Plaintiff, v. TVI, INC., d.b.a. SAVERS; and DOES 1 through 50,
Defendants, Case No. SACV 20-01224-CJC (ADSx) (C.D. Cal.), to
Orange County Superior Court.
The Plaintiff worked for TVI as an hourly non-exempt sales clerk
from October 2015 to October 2019 in Yorba Linda, California. The
Complaint does not include any other details about his role,
salary, or terms of employment.
On May 11, 2020, the Plaintiff brought the suit in Orange County
Superior Court. He asserts a claim for (1) violations of
California's Unfair Competition Law, as well as six causes of
action under California's Labor Code for (2) failure to pay
overtime wages, (3) failure to pay minimum wages, (4) failure to
provide meal periods, (5) failure to provide rest periods, (6)
failure to provide accurate itemized statements, and (7) failure to
pay wages when due.
The Plaintiff asserts these claims on behalf of a proposed class of
current and former non-exempt California employees of TVI at any
time between April 6, 2016 and a date determined by the Court.
The Plaintiff alleges broadly that TVI had a "uniform policy and
practice which" failed to provide him and the class with (1)
legally compliant meal and rest periods, (2) pay for all hours
worked, and (3) accurate itemized wage statements. The boilerplate
allegations in the complaint assert that TVI failed to properly
compensate employees, forced them to work through required breaks,
and failed to keep accurate records. Te Plaintiff has not alleged
any other facts about TVI's practices and policies, the frequency
of the alleged Labor Code violations, or the resulting damages.
The Plaintiff served TVI with a summons and the Complaint on June
11, 2020. On July 10, 2020, TVI removed the action to the Court
pursuant to the Class Action Fairness Act of 2005. Before the
Court is the Plaintiff's motion to remand.
The Plaintiff contends that the case must be remanded because TVI
has not properly established that the amount in controversy exceeds
$5 million. TVI argues that it reaches the $5 million threshold on
the "waiting time penalties" alone, estimating them at $6,633,600.
In the alternative, TVI contends that it can reach the threshold
based on the following "conservative" estimates: (i) $4,772,875.20
in Waiting time penalties, (ii) $1,754,034.40 in Missed meal
breaks, (iii) $1,754,034.40 in Missed rest breaks, and (iv)
$250,000 in Attorneys' Fees. The total is $8,530,944.
Judge Carney finds that TVI has not provided any evidence
suggesting how many of the 2,744 terminated employees were
full-time employees, as opposed to part-time employees. Nor has it
provided an average of hours worked by class members. Accordingly,
TVI has failed to sustain its evidentiary burden regarding
waiting-period penalties for purposes of removal.
Because TVI provides no factual underpinning for the assumption
that a meal and rest break violation occurred one time per week,
Judge Carney finds it has failed to carry its evidentiary burden
for purposes of removal. Moss' declaration sets forth only the
number of class members and their average hourly pay rate. She
does not address anything that would provide factual support for
TVI's assumption that one meal break violation and one rest break
violation occurred per work week, rules the Court.
Finally, TVI calculated its exposure for attorneys' fees as
$250,000. While courts in the Ninth Circuit have considered
potential attorneys' fees in calculating the amount in controversy
in wage-and-hour cases, TVI's fee estimate is based on a
conjectural damages calculation and should be disregarded, Judge
Carney opines.
For the foregoing reasons, Judge Carney concludes that TVI has not
carried its burden to show that the Court has subject matter
jurisdiction over the action under CAFA. Accordingly, he granted
the Plaintiff's motion to remand, and remanded the case to Orange
County Superior Court.
A full-text copy of the Court's Sept. 9, 2020 Order is available at
https://tinyurl.com/yb8s4ue9 from Leagle.com.
UNITED STATES AUTOMOBILE: Bid to Certify Interlocutory Appeal Nixed
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In the case, SPINE CARE DELAWARE, LLC Plaintiff, v. UNITED STATES
AUTOMOBILE ASSOCIATION, USAA GENERAL INDEMNITY COMPANY, USAA
CASUALTY INSURANCE COMPANY, AND GARRISON PROPERTY AND CASUALTY
INSURANCE COMPANY Defendants, C.A. No. N18C-01-253 EMD CCLD (Del.
Super.), Judge Eric M. Davis of the Superior Court of Delaware
refused the Defendants' Application for Certification of an
Interlocutory Appeal of Class Certification Order.
Spine Care filed its "Plaintiff Spine Care Delaware, LLC's Motion
for Class Certification" on July 29, 2019. The Motion centered on
the Defendants' alleged untimely payment of covered medical
expenses to Spine Care and other healthcare providers. Spine Care
contends that the statutory interest owed on overdue Personal
Injury Protection ("PIP")-related medical expenses is owed to Spine
Care and others in the class.
On Oct. 7, 2019, the Defendants filed their answer opposing the
Plaintiff's Motion. On Nov. 13, 2019, Spine Care filed its reply.
The Court held a hearing on the Motion, the Answer and the Reply on
Jan. 29, 2020. After the hearing, it took the Motion under
advisement. On June 18, 2020, the Court issued the Opinion,
granting the relief requested in the Motion and certified a class
under Civil Rule 23.
The Defendants moved to reargue the Opinion, contending that
reargument was necessary because: (i) they wished for further
clarification on whether the certified class is limited to facility
fee bills that the Defendants allegedly were precluded as a matter
of law from disputing because they had deemed the underlying
anesthesia bills to be compensable, and (ii) the class was improper
as it is founded upon a misapprehension of the Defendants' data
systems and ability to identify those claims. The Court denied
reargument, holding that the Defendants were merely rehashing
arguments already asserted and previously determined by the Court.
The Court noted that the class definition was proper for: All
persons or entities who, since Sept. 25, 2014, submitted claims for
medical-expense-related Personal Injury Protection (or PIP)
benefits under Delaware auto policies issued by United Services
Automobile Association, USAA General Indemnity Co., USAA Casualty
Insurance Co. or Garrison Property and Casualty Insurance Co.,
where (i) the claim was not disputed by the insurer on grounds of
insufficient documentation within 30 days of receipt; (ii) the
claim was not paid by the insurer within 30 days of receipt; and
(iii) though ultimately paid in whole or part, the insurer made no
payment of statutory interest on the claim.
The Court allowed Spine Care to be included in the class because
the Defendants were "precluded" from contesting the compensability
of a portion of Spine Care's claim on a basis previously found to
be improper by the Court. On Aug. 25, 2020, the Court entered an
order implementing the Opinion dated June 18, 2020.
The Defendants filed their Application for Certification of an
Interlocutory Appeal of Class Certification Order on Sept. 4, 2020.
They assert that the Application meets the criteria set forth in
Rule 42(b)(iii)(A), (C), (G) and (H). They claim that: (i) the
Opinion decides an issue unresolved in Delaware because the (a) the
Supreme Court has never address an "interest class" before and (b)
Delaware courts have not addressed a situation where class
membership can be determined only by an individualized resolution
of the merits of each class member's claim; (ii) the Opinion
relates to the interpretation and application of a statute, which
has not been, but should be, settled by the Supreme Court in
advance of an appeal from a final order; and (iii) an interlocutory
review of the Opinion may terminate this civil and action and thus
serves the considerations of justice.
Spine Care opposes the interlocutory appeal of the Opinion. In the
Response, it argues that none of the rulings in the Opinion are
questions of first impression in Delaware. It also contends that
interlocutory review cannot possibly terminate the civil proceeding
because, even without class certification, Spine Care could proceed
with its individual claim against Defendants. Finally, it claims
that piecemeal litigation of its claim and the class claims will
not serve the considerations of justice.
Judge Davis agrees with the arguments made in the Response. True,
the Supreme Court has not ruled on the specific issues of the civil
action, but it had and so had other jurisdictions. As noted in the
Response, the Court has previously addressed class certification of
statutory interest claims under Section 2118.
Moreover, while there may be individual questions for certain
claimants as to whether they meet Spine Care's class definition,
the Court found that these individual questions did not predominate
over whether the Defendants failed to pay statutory interest on PIP
claims that were paid late. That is because the individual factual
determinations that must be made, including the amount of interest
to which each claimant is entitled, can be made by reference to
records and objective criteria -- objective criteria and
mathematical calculations applied to undisputed records.
Interlocutory review will not result in a termination of the civil
action. Spine Care has asserted both individual as well as
classwide claims for statutory interest under Section 2118. As
such, interlocutory review could only possibly terminate the class
claims but not the individual claims of Spine Care. The Judge does
not feel that interlocutory review will otherwise serve the
considerations of justice. The Defendants do not, in the
Application, seem to make additional arguments for their Rule
42(b)(iii)(H) argument.
Moreover, as presented at the hearing on the Motion and through
briefing, it does not seem to involve "intractable problems" that
must be resolved through interlocutory appeal and not the normal
trial court litigation process. As such, the Judge does not find
that the benefits of interlocutory appeal outweigh the probable
costs such that interlocutory review is in the interests of
justice. He does not believe that the Defendants have demonstrated
that interlocutory review of the Opinion is warranted. At the very
least, a balancing of the considerations is uncertain.
For these reasons, Judge Davis refused to certify the interlocutory
appeal.
A full-text copy of the Court's Sept. 9, 2020 Order is available at
https://tinyurl.com/y8st22md from Leagle.com.
UNITED STATES: Court Narrows Claims in Onosamba-Ohindo Suit
-----------------------------------------------------------
Judge Elizabeth A. Wolford of the U.S. District Court for the
Western District of New York issued a decision & order in the case,
JUNIOR ONOSAMBA-OHINDO, on behalf of himself and all others
similarly situated, and ANTONIO LOPEZ AGUSTIN, on behalf of himself
and all others similarly situated, Petitioners/Plaintiffs, v.
WILLIAM BARR, in his official capacity as Attorney General of the
Department of Justice, et al., Respondents/Defendants, Case No.
1:20-CV-00290 EAW (W.D. N.Y.): (i) granting in part, denying in
part, and reserving decision in part on the Petitioners' motion for
class certification; (ii) granting in part and denying in part the
Petitioners' motion for a preliminary injunction; and (iii)
granting in part and denying in part the Respondents' motion to
dismiss for lack of jurisdiction pursuant to Federal Rule of Civil
Procedure 12(b)(1) and for failure to state a claim pursuant to
Federal Rule of Civil Procedure 12(b)(6).
Class Petitioner/Plaintiff Onosamba-Ohindo and Subclass Petitioner
Agustin have filed a petition for a writ of habeas corpus under 28
U.S.C. Section 2241 and complaint for declaratory and injunctive
relief, purportedly on behalf of themselves and all other persons
similarly situated. At the time the Petition was filed, the
Petitioners were both civil immigration detainees held under 8
U.S.C. Section 1226(a) pending their removal proceedings.
At the time the Petition was filed, the Class Petitioner was
arrested by ICE and detained under 8 U.S.C. Section 1226(a) at the
Buffalo Federal Detention Facility ("BFDF") in Batavia, New York.
He remained detained because he could not afford the $8,000 bond.
The Petitioners allege that during the Class Petitioner's
detention, he suffered from chest pains, back pains, and migraines
without adequate medical treatment, and that separation from his
wife and community also caused him "severe hardship."
Additionally, his detention severely inhibited his ability to
gather evidence for his underlying application for immigration
relief and to assist his attorney in assembling his materials, a
difficulty compounded by the fact that he speaks little English.
On March 16, 2020, the Class Petitioner was released from
immigration custody after the Brooklyn Bail Fund posted his bond.
He presently lives with his wife in Buffalo, New York.
On Aug. 7, 2019, ICE arrested the Subclass Petitioner after a raid
at his workplace and detained him at the Richwood Correctional
Center ("RCC") in Monroe, Louisiana. He has several traffic
infractions and one misdemeanor conviction for possessing false
identification from 2005 but has no violent or dangerous criminal
history. ICE made the initial custody determination to detain the
Subclass Petitioner without bond.
At the time the Petition was filed, the Subclass Petitioner had
been detained without bond for more than seven months at the RCC.
His detention made it more difficult for him to communicate with
the pro bono attorney who is helping him apply for cancellation of
removal. Additionally, he could not communicate with friends and
family on the outside to help gather evidence and support for his
application, and Batavia was too far for them to come to support
him or testify on his behalf. On April 6, 2020, the Subclass
Petitioner was released from custody on his own recognizance.
The Petitioners filed the instant action and motion to certify the
class on March 11, 2020, and the case was assigned to Judge
Lawrence J. Vilardo. The case was subsequently transferred to
Judge Wolford on July 22, 2020.
The Petitioners seek: class certification; a declaratory judgment
that the actions, practices, policies, and/or omissions of
Defendants/Respondents Barr, the United States Department of
Justice, James McHenry, the Executive Office for Immigration
Review, Matthew Albence, Chad F. Wolf, and Jeffrey Searls, violate
the Immigration and Nationality Act ("INA") and its implementing
regulations, the Administrative Procedure Act, and the Fifth
Amendment to the U.S. Constitution; a declaratory judgment that
each class member is entitled to a custody hearing at which the
government bears the burden to justify continued detention by
proving by clear and convincing evidence that the detained
individual is a danger to others or a flight risk; and an order
stating that each class member must be released unless provided
with such a custody hearing.
Presently pending before the Court are the Petitioners' motion for
class certification, the Petitioners' motion for a preliminary
injunction, and the Respondents' motion to dismiss.
In their Motion to Dismiss for Lack of Subject Matter Jurisdiction,
the Respondents contend that Petitioners' claims are moot because
both Petitioners have been released from immigration custody. The
Petitioners respond that their claims are not moot because they
face the threat of re-detention. Alternatively, they claim that
their claims are inherently transitory, an exception to the
mootness doctrine.
Judge Wolson finds that the Petitioners' claims fall within the
inherently transitory exception to mootness. The Petitioners'
claims are inherently transitory and may proceed even though they
have been released from detention. The Petitioners have also
argued that because they can be re-detained even after their
release on bond, they are subject to the mootness exception for
claims that are capable of repetition but evading review. However,
in light of the finding that the inherently transitory doctrine
applies to the Petitioners' claims, the Judge need not address
whether the capable of repetition yet evading review exception to
mootness applies to the instant matter.
The Respondents also argue that the Court does not have
jurisdiction over any putative class members detained at the RCC,
or over the subclass because the Subclass Petitioner was detained
at the RCC in Monroe, Louisiana, when the Petition was filed.
Judge Wolson finds the Court does not presently have jurisdiction
over the RCC detainees, including the Subclass Petitioner. The
proper respondent/defendant for the Subclass Petitioner is the
warden of the RCC. While the warden of the BFDF (Jeffrey Searls)
is a party to the lawsuit, the warden of the RCC is not. Because
the warden of RCC has not been named as a respondent nor served
with the Petition, the Court does not have jurisdiction over the
claims of the Subclass Petitioner.
The Respondent next argues that 8 U.S.C. Section 1252(f)(1)
prevents the Court from ordering class-wide relief. As a
preliminary matter, the Judge finds that Section 1252(f)(1) does
not bar class-wide declaratory relief. Accordingly, since the
Class Petitioner seeks declaratory relief in addition to injunctive
relief, the Respondent's motion to dismiss based on Section
1252(f)(1) must be denied. Moreover, Judge Wolson concludes that
Section 1252(f)(1) does not bar the injunctive relief sought by the
Class Petitioner. The dispositive inquiry into whether class-wide
injunctive relief is available hinges on whether the Petitioners'
requested relief would "enjoin or restrain the operation of"
Section 1226(a). The Petitioners' requested injunctive relief does
not enjoin or restrain the operation of Section 1226(a), and as a
result Section 1252(f)(1) does not strip the Court of jurisdiction
to order the requested relief on a class-wide basis.
The Respondent next contends that the Court may not review
discretionary bond determinations made by IJs. The Class
Petitioner responds that he is not challenging the IJs' exercise of
discretion but rather is challenging how the decisions are made --
i.e., what factors the IJs must consider in reaching a decision.
Put another way, the Class Petitioner is raising legal, not factual
challenges.
Judge Wolson agrees. A district court cannot review custody
determinations that an IJ, pursuant to her delegated authority, has
made regarding a noncitizen's detention or release. The Class
Petitioner is not challenging the IJ's weighing of evidence and
factual findings. He is challenging the procedures used during
Section 1226(a) bond hearings. Thus, these claims are outside the
scope of the jurisdiction-stripping provisions of Sections 1226(e)
and 1252(a)(2)(B).
Turning to the Motion to Dismiss for Failure to State a Claim,
Judge Wolson finds that (i) the Class Petitioner states a claim for
the additional procedures requested at Section 1226(a) bond
hearings; (ii) the Class Petitioner has stated a claim for
violation of the INA; and (iii) the Court lacks jurisdiction over
the Subclass Petitioner's claims, including the claims related to
the No-Bond Policy. Accordingly, (i) the Respondent's motion to
dismiss the habeas petition as to the Class Petitioner and the
putative class members detained at the BFDF is denied; (ii) the
Class Petitioner's claim that the IJ misinterpreted the INA by
stating she could not consider alternative conditions of release
may proceed, but his claims that the INA required the IJ to
consider those alternatives or his ability to pay in setting bond
are dismissed; and (iii) the Judge does not address the merits of
the No Bond Policy claims at this time.
On March 11, 2020, before applying for a preliminary injunction,
the Class Petitioner moved to certify the class, seeking
certification of the following: All individuals currently detained
under Section 1226(a) who have had or will have a custody hearing
before the Batavia or Buffalo Immigration Courts. Judge Wolson
grants the motion in part and certifies a more narrowly defined
class, denies the motion in part, and reserves decision in part.
Among other things, Judge Wolson finds that the Class Petitioner
has satisfied the prerequisites of Federal Rule of Civil Procedure
23(a) for class certification regarding the class-wide claims:
"numerosity, commonality, typicality, and adequacy of
representation. However, regarding the claim for injunctive
relief, the Respondent correctly points out that the Court cannot
resolve all of the claims of the proposed class with a single
injunction. That does not mean that the Court is unable to
certify, for purposes of injunctive relief, a class of individuals
who have not yet received a bond hearing. Accordingly, the Judge
grants class certification to the Pre-Hearing Class.
With regards to the members of the proposed class who have already
had a bond hearing, Judge Wolson does not at this time decide
whether it would be appropriate to certify a separate class of
those individuals for purposes of declaratory relief, although he
notes that at least one other court has done so under similar
circumstances. The issue has not yet been fully briefed, and
certification of this potential class need not be addressed for
purposes of the preliminary injunction motion. Therefore, the
Judge reserves decision as to whether it would be appropriate to
certify a separate class for purposes of declaratory relief that
includes individuals currently detained at the BFDF under Section
1226(a) who have already had a custody hearing before the Batavia
or Buffalo Immigration Courts ("Putative Post-Hearing Class").
Judge Wolfson granted in part and denied in part the Respondents'
motion to dismiss. She dismissed without prejudice the claims of
the Subclass Petitioner and the claims of the putative class and
subclass members detained at the RCC. All the Respondents aside
from Jeffrey Searls are dismissed without prejudice. She denied
the Respondents' motion as to the Class Petitioner's due process
claims and INA claim as articulated.
Judge Wolson granted in part and denied in part the Petitioners'
motion for class certification and otherwise reserved decision.
Specifically, she certified the Pre-Hearing Class, which is defined
as follows: All individuals currently detained at the Buffalo
Federal Detention Facility under Section 1226(a) who will have a
custody hearing before the Batavia or Buffalo Immigration Courts.
Judge Wolson denied the motion without prejudice as moot to the
extent it seeks class certification regarding any putative class
member detained at the RCC, including the claims of Subclass
Petitioner. She reserved decision on whether it will certify the
Putative Post-Hearing Class, and a separate Text Order will be
issued setting forth a briefing schedule on that aspect of the
class certification motion.
Judge Wolson also granted in part and denied in part the
Petitioners' motion for a preliminary injunction. Specifically,
she granted a preliminary injunction as to the constitutional
claims of the Pre-Hearing Class and ordered that all members of the
Pre-Hearing Class must receive a bond hearing wherein the
government bears the burden of proving by clear and convincing
evidence that the individual is a danger to the community or flight
risk, and where the IJ must consider non-bond alternatives to
detention or, if setting a bond, ability to pay. The Judge
otherwise denied the motion for a preliminary injunction, including
to the extent relief is sought by the Putative Post-Hearing Class
and the Subclass Petitioner.
The Court ordered the parties to confer within seven days of the
date of the Decision and Order to develop a plan for the following:
(i) developing instructions to all IJs in Batavia and Buffalo
Immigration Courts who conduct Section 1226(a) bond hearings to
inform them of the requirements of this Decision and Order; and
(ii) developing a notice, in English, Spanish, and any other
language deemed appropriate by the parties, summarizing the
requirements of the Decision and Order for distribution to the
Pre-Hearing Class members;.
Within 10 days, the parties will provide a status report to the
Court detailing the agreed-upon plan for the matters, after which
the Court will, if necessary, issue an updated order.
A full-text copy of the Court's Sept. 2, 2020 Decision & Order is
available at https://tinyurl.com/y33qys74 from Leagle.com.
UNITED STATES: Muhammad-Ali Suit v. 9 S.C. Justices Dismissed
-------------------------------------------------------------
Judge Darrin P. Gayles of the U.S. District Court for the Southern
District of Florida dismissed the case, AL-RABAT MOROCCO EMPRE
KINGDOM ISLAMIC SOVEREIGNTY NATION 37-1880026 and XYZ INDIGENOUS
ABORIGINAL 28,000 B.C. NATIVES AMERICAN CITIZENS, Plaintiffs, v.
U.S. SUPREME COURT NINE JUSTICES, Defendant, Case No.
1:20-cv-23439-GAYLES/REID (S.D. Fla.).
The matter comes before the Court on Magistrate Judge Lisette M.
Reid's Report of Magistrate Judge. On Aug. 19, 2020, Plaintiff
Drelijah Muhammad-Ali filed the pro se pleading, appearing to raise
a class action. That same day, the action was referred to Judge
Reid, for a ruling on all pretrial, non-dispositive matters and for
a Report and Recommendation on any dispositive matters.
On Aug. 26, 2020, Judge Reid issued her Report, recommending that
the case be dismissed for lack of jurisdiction when construed as a
petition brought under 28 U.S.C. Section 2241 and dismissed as a
three-striker pursuant to 28 U.S.C. Section 1915(g) when construed
as a complaint brought under 42 U.S.C. Section 1983. The
Plaintiffs filed timely objections.
Having conducted a de novo review of the record, Judge Gayles
agrees with Judge Reid's well-reasoned analysis and conclusion that
the case should be dismissed. Accordingly, he affirmed and adopted
Judge Reid's Report. The case will be closed.
A full-text copy of the Court's Sept. 4, 2020 Order is available at
https://tinyurl.com/yyqabell from Leagle.com.
UNITED STATES: Seeks Ninth Circuit Review in Scholl Prisoner Suit
-----------------------------------------------------------------
Defendants Steven Terner Mnuchin, et al., filed an appeal from a
court ruling entered in the lawsuit styled Colin Scholl, et al. v.
Steven Mnuchin, et al., Case No. 4:20-cv-05309-PJH, in the U.S.
District Court for the Northern District of California, Oakland.
Mr. Mnuchin is sued in his official capacity as the Secretary of
the U.S. Department of Treasury.
As previously reported in the Class Action Reporter on Sept. 4,
2020, the Plaintiffs will move the Court on Sept. 11, 2020, for an
order:
1. certifying a class of incarcerated persons under FRCP
23(b)(2) and/or (b)(3); and
2. granting a class-wide preliminary injunction declaring the
Defendants' policy unlawful and requiring them to issue
Economic Incentive Payments (EIP) benefits to eligible
Class Members; and
3. appointing a co-lead class counsel.
The Plaintiffs contend that the Defendants' exclusion of
incarcerated people from the EIP program is unlawful and that
further delay will cause irreparable harm to themselves, the
proposed Class, and their friends and family members, particularly
given that the CARES Act's express purpose is to provide relief "as
rapidly as possible."
The Department of the Treasury is the national treasury of the
federal government of the United States where it serves as an
executive department. The Internal Revenue Service is the revenue
service of the United States federal government. The government
agency is a bureau of the Department of the Treasury, and is under
the immediate direction of the Commissioner of Internal Revenue,
who is appointed to a five-year term by the President of the United
States.
The appellate case is captioned as Colin Scholl, et al. v. Steven
Mnuchin, et al., Case No. 20-16963, in the United States Court of
Appeals for the Ninth Circuit.[BN]
Plaintiffs-Appellees COLIN SCHOLL and LISA STRAWN, on behalf of
themselves and all others similarly situated, are represented by:
Jalle Dafa, Esq.
Kelly M. Dermody, Esq.
Yaman Salahi, Esq.
LIEFF CABRASER HEIMANN & BERNSTEIN, LLP
275 Battery Street, 29th Floor
San Francisco, CA 94111
Telephone: (415) 956-1000
E-mail: jdafa@lchb.com
kdermody@lchb.com
ysalahi@lchb.com
- and -
Eva Jefferson Paterson, Esq.
EQUAL JUSTICE SOCIETY
1999 Harrison Street
Oakland, CA 94612
Telephone: (415) 288-8700
Facsimile: (510) 338-3030
Intervenors-Plaintiffs-Appellees JOHN GALVAN and PATRICK TAYLOR are
represented by:
Christopher R. Pitoun, Esq.
HAGENS BERMAN SOBOL SHAPIRO LLP
301 North Lake Avenue, Suite 920
Pasadena, CA 91101
Telephone: (213) 330-7150
E-mail: christopherp@hbsslaw.com
Defendants-Appellants STEVEN TERNER MNUCHIN, in his official
capacity as the Secretary of the U.S. Department of Treasury;
CHARLES P. RETTIG, in his official capacity as U.S. Commissioner of
Internal Revenue; UNITED STATES DEPARTMENT OF THE TREASURY, UNITED
STATES INTERNAL REVENUE SERVICE, and UNITED STATES OF AMERICA, are
represented by:
Julie Ciamporcero Avetta, Esq.
U.S. DEPARTMENT OF JUSTICE
P.O. Box 502
Washington, DC 20044
Telephone: (202) 616-2743
VALENTINE & KEBARTAS: Cardenas Seeks to Certify FDCPA Class
-----------------------------------------------------------
In the class action lawsuit captioned as GLORIA CARDENAS,
individually and on behalf of all others similarly situated, v.
VALENTINE & KEBARTAS LLC, and JOHN and JANE DOES 1-10, Case No.
5:20-cv-00300-OLG (W.D. Tex.), Ms. Cardenas asks the Court for an
order certifying a class defined as:
"all natural persons to whom Valentine & Kebartas, LLC,
mailed a written communication to a Texas address during
the Class Period beginning on March 11, 2019 and ending on
April 1, 2020."
Ms. Cardenas alleges V&K violated the Fair Debt Collection
Practices Act, by mailing her and 19,601 similarly situated Texas
residents an identical standardized form collection letter that she
contends uniformly violates the FDCPA.
V&K provides collection services to public and private sector
clients.
A copy of the Plaintiff's motion for class certification is
available from PacerMonitor.com at https://bit.ly/3iQNeAY at no
extra charge.[CC]
Attorneys for Plaintiff are:
Andrew T. Thomasson, Esq.
Philip D. Stern, Esq.
Francis R. Greene, Esq.
Katelyn B. Busby, Esq.
STERN THOMASSON LLP
150 Morris Avenue, 2nd Floor
Springfield, NJ 07081-1315
Telephone: (973) 379-7500
E-Mail: Andrew@SternThomasson.com
Fhilip@SternThomasson.com
Francis@SternThomasson.com
Katelyn@SternThomasson.com
- and -
William M. Clanton, Esq.
LAW OFFICE OF BILL CLANTON, P.C.
926 Chulie Drive
San Antonio, TX 78216
Telephone: (210) 226-0800
Facsimile: (210) 338-8660
E-Mail: bill@clantonlawoffice.com
VERIZON CONNECT: Collective Status Sought in Garnick et al. Suit
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In the class action lawsuit captioned as LAUREN GARNICK, TSHACHA
ROMEO and COREY HANVEY, Individually, and on behalf of all others
similarly situated, v. VERIZON CONNECT FLEET USA LLC, Case No.
8:20-cv-01474-MSS-TGW (M.D. Fla.), the Plaintiffs ask the Court for
an order:
1. conditionally certifying this case to proceed as a Section
216b collective action;
2. requiring the Defendant to produce the names, US mail,
email addresses and telephone numbers of each putative
class member; and
3. authorizing the Plaintiff to send notice of this action
to:
"all currently or formerly employed BDR and Closers that
were employed by the Defendant and its predecessor within
the preceding three (3) years to the present."
The Plaintiffs have brought this Fair Labor Standards Act
collective action against the Defendant, alleging that Defendant
violated the FLSA by willfully failing to pay them and all Inside
Sales Representatives (ISR) under the titles of "Closers" and
Business Development Representatives (BDR) overtime compensation
for all hours worked over 40 in each and every work week, and
further willfully failed to properly and record their work hours in
violation of the FLSA.
Verizon is doing business in consumer electronics and appliances
stores industry.
A copy of the Plaintiffs' motion for conditional certification is
available from PacerMonitor.com at https://bit.ly/2E8XSnI at no
extra charge.[CC]
Attorney for Plaintiffs and the Classes are:
Mitchell L. Feldman, Esq.
FELDMAN LEGAL GROUP
6940 W. Linebaugh Ave., #101
Tampa, FL 33625
Telephone: 813-639-9366
Facsimile: 813-639-9376
E-mail: mlf@feldmanlegal.us
lschindler@feldmanlegal.us
VIVINT INC: App. Court Flips Dismissal of Linehan-Clodfelter Suit
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In the case, EZRA LINEHAN-CLODFELTER, Plaintiff and Appellant, v.
VIVINT, INC., Defendant and Respondent, Case No. A157661 (Cal.
App.), the Court of Appeals of California for the First District,
Division Five, reversed the trial court's dismissal of the
Plaintiff lawsuit against his former employer, Vivint, concluding
he lacked standing to pursue a claim for penalties under the
Private Attorney General Act of 2004.
Vivint is a residential automation and security company. The
Plaintiff worked for Vivint as an installation technician. After
his employment ended, he filed a putative class action complaint
against Vivint. The operative first amended complaint alleged
violations of the Labor Code, including failure to pay wages and
overtime and failure to provide meal and rest breaks - and an
unfair competition cause of action. The complaint also alleged a
PAGA claim.
Vivint moved to compel arbitration of all claims except the PAGA
claim. The court granted the petition and stayed the PAGA claim
pending completion of arbitration. Not long after, the Plaintiff
moved to dismiss the individual and class claims without prejudice.
In a supporting declaration, Plaintiff averred he wished to
dismiss the individual and class claims so he could continue in his
role as a representative in the currently stayed PAGA claim.
Plaintiff requested a dismissal without prejudice because he
thought a dismissal with prejudice might prevent him from pursuing
his PAGA claim on behalf of aggrieved employees.
The Plaintiff, however, had no intention of pursuing any of the
individual or class claims now or anytime in the future. He
claimed his goal in filing the lawsuit was to help his coworkers,
and he intended to do that by litigating the PAGA cause of action.
The trial court granted the motion, dismissed the individual and
class claims without prejudice, and lifted the stay on the PAGA
claim. With the stay lifted, Vivint demurred to the PAGA claim.
According to Vivint, by abandoning his individual claims, the
Plaintiff was no longer an "aggrieved employee" within the meaning
of PAGA. Vivint's logic was that without an underlying Labor Code
claim, the Plaintiff lacked standing to pursue PAGA penalties on
behalf of other employees.
The trial court agreed and sustained the demurrer without leave to
amend. It determined the legislative history demonstrated PAGA was
not intended to allow an action to be prosecuted by any person who
did not have a grievance against his employer for Labor Code
violations. It reasoned that without an individual or class claim,
the Plaintiff was not an aggrieved employee within the meaning of
PAGA. It explained a litigant cannot assert individual labor
claims, then dismiss them without prejudice while disclaiming any
future intent to assert them, but still continue to maintain
standing as an aggrieved party under PAGA. The trial court
dismissed the operative complaint with prejudice and entered
judgment for Vivint.
Relying on the high court's opinion in Kim v. Reins Internat.
California, Inc. (2020) 9 Cal.5th 73 (Kim), the Appellate Court
will reverse. Under the Kim case, the Appellate Court concludes
that the Plaintiff is an "aggrieved employee" with standing to
pursue his PAGA claim. The Plaintiff alleged he was employed by
Vivint, and that he personally suffered at least one Labor Code
violation on which the PAGA claim is based. The Plaintiff's
dismissal of his individual and class claims did not nullify these
alleged Labor Code violations, nor strip the Plaintiff of his
standing to pursue PAGA remedies. Dismissing these claims to
pursue a stand-alone PAGA claim is -- as Kim observes -- authorized
by section 2699, subdivision (g)(1).
Vivint's attempt to distinguish Kim is not persuasive, the
Appellate Court finds. For example, Vivint contends the Plaintiff
did not settle his individual claims as in Kim, but rather
"waived," "forfeited," or "abandoned" them. Premised on semantics,
the argument misses the point. The rule from Kim is an "aggrieved
employee" has standing to pursue a PAGA claim, irrespective of
whether that employee maintains a separate Labor Code claim. And
as discussed, the Plaintiff alleged he was an aggrieved employee.
Under Kim, the allegation is sufficient, at this stage, to
establish standing. To the extent Vivint argues Kim applies only
when a plaintiff settles the underlying Labor Code claims, the
Appellate Court disagrees.
Vivint's reliance on federal district court cases, including
Cabrera v. CVS Rx Servs., does not persuade the Judge that the
Plaintiff lacks standing to pursue a PAGA claim. The holding in
Cabrera -- that a plaintiff without underlying Labor Code claims
lacks standing to pursue a PAGA claim -- has been rejected by the
high court in the Kim case. The Court is bound by the California
Supreme Court's decision.
Because the Plaintiff was an "aggrieved employee," he had standing
to pursue a PAGA claim notwithstanding the dismissal of his
individual and class claims, the Appellate Court opines. The trial
court erred by sustaining Vivint's demurrer without leave to amend
on the basis that the Plaintiff lacked standing, the Appellate
Court relates. Reversal is required.
Accordingly, the Appellate Court reversed the trial order
sustaining the demurrer without leave to amend and the judgment of
dismissal. On remand, the trial court must vacate the order and
judgment, and enter a new order overruling the demurrer. The
Plaintiff is entitled to costs on appeal.
A full-text copy of the Appellate Court's June 26, 2020 Opinion is
available at https://bit.ly/3jXn54k from Leagle.com.
WAL-MART STORES: Appeals Decision in Hamilton Suit to 9th Circuit
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Defendants Wal-Mart Stores, Inc., et al., filed an appeal from a
court ruling entered in the lawsuit styled as Chelsea Hamilton,
individually and on behalf of all others similarly situated v.
Wal-Mart Stores, Inc., a corporation; Wal-Mart Associates, Inc., a
corporation; and DOES 1 through 50, inclusive, Case No.
5:17-cv-01415-AB-KK, in the U.S. District Court for the Central
District of California (Riverside).
The appellate case is captioned as Chelsea Hamilton, et al. v.
Wal-Mart Stores, Inc., et al., Case No. 20-55223, in the United
States Court of Appeals for the Ninth Circuit.
The lawsuit alleges violation of labor-related laws.
Wal-Mart Stores, doing business as Walmart, is an American
multinational retailing corporation that operates as a chain of
hypermarkets, discount department stores, and grocery stores.[BN]
Plaintiff-Appellee Chelsea Hamilton is represented by:
Brian J. Mankin, Esq.
FERNANDEZ & LAUBY LLP
4590 Allstate Drive
Riverside, CA 92501
Business: 951-320-1444
Personal: 951-320-1444
- and -
Stephanie Emi Yasuda, Esq.
Kenneth H. Yoon, Esq.
Stephanie Emi Yasuda, Esq.
Kenneth H. Yoon, Esq.
LAW OFFICES OF KENNETH H. YOON
One Wilshire Boulevard
Los Angeles, CA 90017-3383
Personal: 213-612-0988
Plaintiff-Appellee Alyssa Hernandez, on behalf of themselves and
all others similarly situated, is represented by:
Brian J. Mankin, Esq.
FERNANDEZ & LAUBY LLP
4590 Allstate Drive
Riverside, CA 92501
Business: 951-320-1444
Personal: 951-320-1444
The Defendant-Appellants are represented by:
Elizabeth Aislinn Dooley, Esq.
Theane Evangelis, Esq.
Bradley Joseph Hamburger, Esq.
GIBSON, DUNN & CRUTCHER LLP
555 Mission Street, Suite 3000
San Francisco, CA 94105
Personal: 415-393-8342
- and -
Matthew Ryan Gershman, Esq.
Robert James Herrington, Esq.
Mark D. Kemple, Esq.
GREENBERG TRAURIG LLP
1840 Century Park East, Suite 1900
Los Angeles, CA 90067
Personal: 310 586-7776
WESTSIDE 309: Dismissal of Claims of 74 Plaintiffs in Chang Denied
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In a class action against Westside 309 LLC, the New York County
Supreme Court denied the Moving Defendants' motion to dismiss each
of the 74 Plaintiffs' claims for, inter alia, rent overcharge
damages asserted against them that are not their respective
landlord.
The case is YEN CHANG, KENNETH HICKS, RANDY GARCIA, TIFFANY LEE,
STEPHEN BOTTA, TAILEEN JOA, SHIRLEY MITCHELL, CYNTHIA LOWE, DANIEL
LORIA, NICOLE COCCHIARO, ANN VOTAW, SALVATORE RUSSO, ELIZABETH
BOUK, NETANIA BUDOFSKY, JESSICA GOLDHIRSH, JOSEPH OSTWALD, ANDREW
O'BRIEN, LAURA PIRAINO, MELODY MERKER, GARY TOPP, KRISTINA
BONHORST, KENT HAINA, ANDREW KELTZ, DARRYL WASHINGTON, MEGAN HAGAR,
MARISSA KOELLER, GABRIELLA GARCIA, TIMOTHY BARKER, ADEOLA ROLE,
CAROLINA BOTERO, JOSEPH CRACCO, DAVID WALKER, FLORENCE LAGAMMA,
MARY LEVITT, RYAN BALAS, DEIRDRE BALAS, JONATHAN LEUNG, LUKE VAN
DEE VEER, JOSEPH RICCARDI, ADRIENNE RICCARDI, KAREN CLAMAN, PETER
CERNAUSKAS, RYAN CLAPP, CLEMENT CHAN, MATTHEW HAENSLY, SCOTT
CHAPMAN, MOHAMMAD ISLAM, STEPHANIE MOSHER, ALGERSON ANDRE, LUKASZ
JANIK, YOLANDA NUNLEY, MICHAEL ALBERTSON, ADINA WOLF, JONATHAN
O'GRADY, DAVID ISAACS, STEPHANIE MACIOCH, ISABELLA CARDONA, MICHAEL
WILKE, SHUCHIN SHUKLA, MAMUA JEME, GLENN ENGLISH, ANA MARIE SANTOS,
JEN WATSON, KERRY McFATE, DESIREE GRENAY, JONATHAN GRENAY, TIMOTHY
MORAN, LORNE HEILBRONN, J.L. DUFFY, PHYLLIS HIRSHORN, HANS KLUEFER
and KATHERINE KLUEFER, Plaintiffs, v. WESTSIDE 309 LLC, THAYER 45
LLC, POST 118 LLC, SEAMAN 20 LLC, SEAMAN 30 LLC, SEAMAN 133 LLC,
VERMILYEA 153 LLC, HEIGHTS 170 LLC, HEIGHTS 624 LLC, HEIGHTS 177
LLC, FT GEORGE 617 LLC, INWOOD 213 LLC, PAYSON 55 LLC, CROWN
ASSOCIATES LLC, GEBS REALTY LLC, ALJO REALTY LLC, ABIII LLC,
SKILLMAN 47 LLC, PAGE REALTY LLC, SUNNYSIDE 45-42 LLC, SYLVEEN
REALTY LLC, SUNNYSIDE 47-21 LLC and SUNNYSIDE 42 LLC, Defendant,
Docket No. 153031/2018, Motion Seq. No. 006 (N.Y. Sup.).
The Moving Defendants are Westside 309 LLC, Thayer 45 LLC, Post 118
LLC, Seaman 20 LLC, Seaman 30 LLC, Seaman 133 LLC, Vermilyea 153
LLC, Heights 170 LLC, Heights 624 LLC, Heights 177 LLC, Ft. George
617 LLC, Inwood 213 LLC, Payson 55 LLC, Crown Associates LLC, Gebs
Realty LLC, Aljo Realty LLC, ABIII LLC, Skillman 47 LLC, Page
Realty, LLC (incorrectly sued herein as Page Realty LLC), Sunnyside
45-42 LLC, Sylveen Realty LLC, and Sunnyside 47-21 LLC.
In prior motions to dismiss, pursuant to CPLR 3211, the Moving
Defendants raised a myriad of issues with the Plaintiffs' theory of
the case, inter alia, that the Plaintiffs failed to allege
sufficient facts to maintain the instant action as a class action,
pursuant to Article 9 of the New York Civil Practice Law and Rules
(CPLR), and that the action should be dismissed as against
then-Defendant Bronstein Properties, LLC, arguing that said party
had no liability as a managing agent acting on behalf of disclosed
principals, its landlord-clients.
On March 21, 2019, the Court granted in part and denied in part the
aforesaid motions. Based upon the arguments made, the Court agreed
that Bronstein Properties could not be found liable for the alleged
rent overcharge claims, as it was a managing agent acting on behalf
of disclosed principals (i.e. Moving Defendants), and as such, the
Court dismissed the action as against Bronstein Properties.
However, the Court denied the branches of the motions seeking to
dismiss the complaint on the ground the Plaintiffs cannot maintain
their claims as a class action as such arguments were "premature."
Citing Maddicks v Big City Properties, LLC, (163 A.D.3d 501, 504
[1st Dept 2018]), the Court reasoned that such a detailed analysis
of class certification status is inappropriate at the pleading
stage.
Since that time, the First Department's decision in Maddicks has
been affirmed by the Court of Appeals.
Notwithstanding the District Court's prior decision and the
affirmance in the Maddicks case, the Moving Defendants brought a
second motion to dismiss the class action and reiterating some of
the same arguments made on the prior motions to dismiss.
Furthermore, they make the additional argument that the motion
should be dismissed pursuant to the doctrine of primary
jurisdiction.
In addition, the Moving Defendants also denominate the instant
motion as a motion to sever, pursuant to CPLR 603, and argue that
joinder of the claims is inappropriate and that the Court should
sever the claims against each of the 23 single purpose owner
entities into 23 separate actions. The Moving Defendants further
argue that Maddicks is not relevant here because they are moving to
sever, pursuant to CPLR 603, and not simply moving to dismiss on
the pleadings, pursuant to CPLR 3211(a) -- as they did before.
They also argue that the Court's dismissal of Bronstein Properties
further militates in favor of dismissing the instant putative class
action and the severing of the underlying claims into 23 separate
litigations.
The Plaintiffs oppose the motion and argue that they should be
awarded attorney fees and costs in defending said motion.
As established in the Maddicks case, on a motion pursuant to CPLR
3211, it is premature to dismiss class claims based on allegations
of a methodical attempt to illegally inflate rents. Rather, when a
defendant challenges issues of commonality and typicality -- as the
Moving Defendants do in the case -- such a challenge should be
addressed on a motion for class certification, pursuant to CPLR
article 9, after the plaintiffs have had the benefit of class
certification discovery. As long as the putative class complaint
addresses harm effectuated through a variety of approaches but
within a common systematic plan, the motion to dismiss should be
denied.
What makes the instant case somewhat different from the Maddicks
case, is: (1) there is no allegation that any remaining defendant
is an umbrella owner of all the Moving Defendants; and (2) the
management company, Bronstein Properties, has been dismissed from
the instant case -- again, per the Court's decision on the prior
motions to dismiss -- on the grounds that it was an agent acting on
behalf of disclosed principals.
Judge Kalish finds that these two differences do not provide a
basis to distinguish the instant case from the Maddicks case and
its application. With regard to the first distinction, there has
never been a requirement that the Defendants in a class action have
a formal corporate relationship. With regard to the second
distinction, it matters not that the management company Bronstein
Properties cannot be held directly liable for the illegal actions
it allegedly orchestrated as a "systematic effort" or "methodical
attempt" for the benefit of its client landlords.
To the extent that Moving Defendants argue that the action should
be dismissed because the complaint asserts causes of action by
individual plaintiffs against certain Moving Defendants that are
not their respective landlord, Judge Kalish rejects that argument.
Giving the complaint a liberal construction, the Judge finds that
the complaint only asserts claims by each Plaintiff against his or
her respective landlord.
Regarding the Moving Defendants' argument that the action should be
dismissed pursuant to the doctrine of primary jurisdiction --
without prejudice to the Plaintiffs pursuing their claims before
the DHCR -- the Judge also rejects this argument. It has long
been settled law that a class action may not be dismissed, pursuant
to the doctrine of primary jurisdiction, prior to the Supreme Court
ruling upon the issue of class certification.
Lastly, to the extent that the Moving Defendants seek to
differentiate the instant motion from the prior motions to dismiss
by denominating the instant motion as also being a motion to sever,
pursuant to CPLR 603 -- as opposed to purely a motion to dismiss,
pursuant to CPLR 3211 -- the Court finds that to be a distinction
without a difference and rejects the Moving Defendants' arguments.
Further, the Moving Defendants argue that it is more efficient to
sever the instant action into 23 separate actions and litigate them
separately. Again, this is, in sum and substance, the same
argument that was made on the prior motions to dismiss, based on
CPLR 3211, and the same arguments will likely be made by the Moving
Defendants in opposition to a future motion for class
certification.
With regard to the Plaintiffs' request for costs and attorney fees,
that request is denied.
The Judge has considered all the arguments raised and finds them to
be unavailing. One argument not raised, however, is that the
instant motion is barred by the single motion rule as per CPLR
3211(e). Every argument raised on this motion was either raised in
the prior motions or could have been raised on those motions.
Nonetheless, the Judge is encouraged by the parties recently
stipulating to amend the complaint to conform to Regina Metro. Co.,
LLC v DHCR, (2020 NY Slip Op 02127, 21 [Ct App Apr. 2, 2020]). As
such, the Judge expects that the parties will work cooperatively
and expeditiously in completing class certification discovery.
Accordingly, Judge Kalish denied the Moving Defendants' motion.
The Judge also denied the Plaintiffs' request for an award of
attorney fees and costs in defending the instant motion.
A full-text copy of the District Court's June 26, 2020 Decision and
Order is available at https://bit.ly/2SS8A5S from Leagle.com.
ZARA USA: Gillett Seeks Conditional Collective Status
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In the class action lawsuit captioned as LATRELL GILLETT,
individually and on behalf of others similarly situated, v. ZARA
USA, Inc. and INDITEX USA LLC, Case No. 1:20-cv-03734-KPF
(S.D.N.Y.), the Plaintiff will move the Court for an order granting
conditional collective certification, court-authorized notice, and
expedited discovery, pursuant to the Fair Labor Standards Act, as
well as such other and further relief as the Court deems just and
proper.
Zara is an architecture and planning company based out of 1238
Wisconsin Ave NW, Washington.
A copy of the Plaintiff's motion for conditional certification is
available from PacerMonitor.com at https://bit.ly/3kG5uxP at no
extra charge.[CC]
The Plaintiff is represented by:
Brian S. Schaffer, Esq.
Hunter G. Benharris, Esq.
FITAPELLI & SCHAFFER, LLP
28 Liberty Street, 30th Floor
New York, NY 10005
Telephone: (212) 300-0375
*********
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