/raid1/www/Hosts/bankrupt/CAR_Public/201016.mbx
C L A S S A C T I O N R E P O R T E R
Friday, October 16, 2020, Vol. 22, No. 208
Headlines
AFFORDABLE SERVICES: Appeals Ruling in Turano Suit to 10th Cir.
ALMOST FAMILY: Stein Appeals Order in Securities Suit to 6th Cir.
APEX USA: Pearce, et al. Seek to Certify Class of J-1 Visa Holders
AQUA CARPATICA: Jaquez Sues in S.D. New York Over ADA Violation
ASPEN GROUP: Hedges Sues in S.D. New York Alleging ADA Violation
BAIDU INC: Levi & Korsinsky Reminds of October 19 Deadline
BAIDU INC: Rosen Law Firm Reminds of October 19 Deadline
BANK OF AMERICA: Heinert Appeals W.D.N.Y. Rulings to 2nd Circuit
BLINK CHARGING: Glancy Prongay Reminds of October 23 Deadline
BOSTON UNIVERSITY: Venue of V. Tran Suit Moved to Massachusetts
BRENAU UNIVERSITY: Hedges Files ADA Class Suit in S.D. New York
CDBMD INC: Fails to Protect Consumers' PII, Warshawsky Suit Claims
CEDAR SHAKE: 9th Cir. Appeal Filed in Liebo Price Fixing Suit
CENTRAL CALIFORNIA: Ordered to File Revised Urena Suit Settlement
CENTRIC DENIM: Paguada Sues in S.D. New York Over ADA Violation
CHICAGO, IL: App. Ct. Answers Certified Questions in Underwood Suit
CITY UNIVERSITY: Hedges Sues in S.D. New York Over ADA Violation
CORT BUSINESS: Cota Sues in S.D. California Over Violation of ADA
COVENANT AVIATION: Fails to Pay Minimum & OT Wages, Alfardi Says
CUMBERLAND COUNTY, NJ: Archie Prisoners Class Suit Terminated
CVS HEALTH: Prelim. Approval of Perez Suit Settlement Recommended
DAVID SAXE: Settlement in Bauman Suit Gets Final Approval
DEPT. OF JUSTICE: Onosamba-Ohindo Suit Wins Class Status
DEVON ENERGY: Court Denies Bid to Dismiss Wilson FLSA Suit
DISTRICT OF COLUMBIA: Fails to Properly Pay OT Wages, Marinos Says
DOORDASH INC: Austin Appeals D. Mass. Decision to First Circuit
ELLSWORTH CONSTRUCTION: Fails to Pay Overtime Wages, Atwell Says
ENVISION HEALTHCARE: $1.85MM Counsel Fees Awarded in McLaughlan
FERRARA CANDY: 9th Cir. Upholds Approval of Littlejohn Settlement
FITNESS ANYWHERE: Paguada Sues in New York Over Violation of ADA
FLORIDA: DOC Appeals Order in Harvard Prisoner Suit to 11th Cir.
FLOWERS TODAY: Paguada Sues Over Blind-Inaccessible Web Site
FOX KOHLER: Court Rules on Arbitration Motions in Frederick Suit
FQSR LLC: Bid for Conditional Class Cert. Granted in Part
FRED HAAS: Denial of Arbitration Bid in Mendoza TCPA Suit Reversed
FYF-EVE'S LLC: Web Site Inaccessible to Blind Users, Paguada Says
GARRISON PROPERTY: Coleman Appeals N.D. Ill. Order to 7th Circuit
GOL LINHAS: Bragar Eagel Reminds of November 10 Deadline
GREATAUPAIR LLC: Court Issues Summons in Padron Employment Suit
HARMONY HEALTHCARE: Conditional Cert. of Collective Action Sought
HOME DELIVERY: Jones Sues Over Improper Pay Practices Under FLSA
HUNTER WARFIELD: Faces Murray FDCPA Class Suit in M.D. Florida
HYDRO-STAT INC: Carter Sues Over Improperly Paid Overtime Wages
HYDROW INC: Paguada Sues in S.D. New York Alleging ADA Violation
IDEXX DISTRIBUTION: Denial of Howard Suit Dismissal Bid Recommended
INDIANA: Class & Subclass in ACLU of Indiana Class Suit Certified
JEFFRY KNIGHT: Yan Seeks Conditional Collective Status
KREILKAMP TRUCKING: Bosley Seeks to Certify Drivers Class
KURTZMAN CARSON: Consolidated Aetna Suit Dismissed with Prejudice
KWIKCASH INC: Paguada Sues in S.D. New York Over Violation of ADA
LAFRIEDA MEATS: Faces Paguada ADA Class Suit in S.D. New York
LEXISNEXIS RISK: Bid to Certify Class in "Gaston" Granted in Part
LOUISIANA: Court Denies TRO Motion in Belton Inmates Class Suit
MARTIN OPERATING: March 23 Settlement Approval Hearing Set
MONTGOMERY, AL: Carter Seeks to Certify 4 Classes
MORTGAGE LENDERS: Obtains Partial Summary Judgment in Charbonneau
NATIONAL FREIGHT: Court Grants Motion to Seal in Portillo Suit
NAVIENT SOLUTIONS: Carlin Appeals E.D. Va. Decision to 4th Cir.
NBTY INC: Ninth Circuit Appeal Filed in Alvarez Consumer Suit
NEW YORK: Court Grants Class Certification Bid in Stiegman Suit
NINTENDO OF AMERICA: Can Compel Arbitration in Carusone Class Suit
OHIO: $153,000 Legal Fees & Costs Awarded in Intercommunity Suit
OHIO: Supreme Court Reverses Class Certification Order in Pivonka
PANERA LLC: Tabler Files Voluntary Dismissal Notice of Class Claims
PIER 66 MARITIME: Torrez Sues Over Failure to Properly Pay Wages
POLARIS INDUSTRIES: Bid for Judgment in Liability Class Suit Denied
PORTLAND GENERAL: Rosen Law Firm Reminds of November 2 Deadline
PROGRESSIVE DIRECT: Stanikzy Suit Seeks to Certify Insureds Class
QUTOUTIAO INC: Oct. 19 Class Action Lead Plaintiff Deadline Set
REDSTONE LLP: Faces Ibarra FLSA Suit Over Unpaid Overtime Wages
RHM LLC: Faces Hopkins FLSA Suit Over Workers' Misclassification
SALT RIVER: Seeks 9th Circuit Review of Decision in Ellis Suit
SHOE SENSATION: Court Issues Show Cause Order in Williams ADA Suit
SIMON PROPERTY: Summary Judgment in Sharabani Class Suit Affirmed
SODASTREAM USA: Paguada Sues in S.D. New York Over ADA Violation
SPAIN 92: Criollo Seeks Conditional Class Certification
SPECTRUM BRANDS: Court Narrows Claims in Winkworth Class Suit
STAAR SURGICAL: Kirby McInerney Reminds of October 19 Deadline
SUBARU OF AMERICA: Anderson Suit Moved From Hawaii to N.D. Alabama
SUPERMONEY LLC: Faces Paguada ADA Class Suit in S.D. New York
TEVA PHARMA: Certification of Plan Beneficiaries Class Sought
TRON FOUNDATION: C. Hardin Named Lead Plaintiff in Securities Suit
UBER TECHNOLOGIES: Court Narrows Claims in Colopy Class Suit
UNITED HEALTHCARE: Court Narrows Claims in Chiron Class Suit
UNITED SPECIALTY: Hoak Suit Moved From Colorado to N.D. California
UNITED STATES: Court Issues Injunction Order in Kirwa Suit
UNITED STATES: Court Junks Zyszkiewicz's Prisoners Suit
UNITEDHEALTHCARE: Caldwell Seeks to Certify ERISA Class
VAILS GATE: Court Conditionally Certifies Class in Aguilo FLSA Suit
VAXART INC: Kehoe Law Firm Investigates Securities Claims
VIVINT SOLAR: Nov. 13 Class Action Lead Plaintiff Deadline Set
VIVINT SOLAR: Rigrodsky & Long Files Securities Class Action
WAKEFERN FOOD: Faces Myers Class Action Suit in S.D. New York
WARNER MUSIC: Williams Appeals C.D. California Ruling to 9th Cir.
WEST VIRGINIA: Court Certifies Defendant Class in Nelson Suit
WESTON DISTANCE: Faces Hedges ADA Class Suit in S.D. New York
WILLIAM HOWARD: Blind Users Can't Access Web Site, Hedges Alleges
WIRECARD AG: Dalpoggetto Suit Transferred to E.D. Pennsylvania
WYNN LAS VEGAS: Settlement in Keli May Suit Gets Prelim. Approval
ZERO LOUNGE: Suriel Sues Over Restaurant Staff's Unpaid Wages
Asbestos Litigation
ASBESTOS UPDATE: Final Court Judgments Imposed on Cutler and Davis
ASBESTOS UPDATE: US Navy Veteran Wins $2.5MM Verdict vs. Metalclad
*********
AFFORDABLE SERVICES: Appeals Ruling in Turano Suit to 10th Cir.
---------------------------------------------------------------
The Defendants filed an appeal from the District Court's Order
entered in the lawsuit styled Turano v. Affordable Services Corp.,
et al., Case No. 1:19-CV-01373-RBJ, in the U.S. District Court for
the District of Colorado (Denver).
As previously reported in the Class Action Reporter, a class action
complaint has been filed against Affordable Services Corp. and
Walter Scott Spencer for violations of the Fair Labor Standards Act
of 1938 and the Colorado Minimum Wage Order. The Plaintiff Bryan
Turano asserts that Affordable Services does not pay service
technicians overtime compensation for all hours worked over 40 in
any workweek. He also claims that Affordable Services has in place
inadequate timekeeping method for tracking and recording the time
its service technicians spend working.
The appellate case is captioned as BRYAN TURANO, on behalf of
himself and all others similarly situated, Plaintiff-Appellee v.
AFFORDABLE SERVICES CORP. and WALTER SCOTT SPENCER,
Defendants-Appellants, Case No. 20-1059, in the United States Court
of Appeals for the Tenth Circuit.
Affordable Services is a landscaping contractor.[BN]
Plaintiff-Appellee BRYAN TURANO, on behalf of himself and all
others similarly situated, is represented by:
Michael Dickson Kuhn, Esq.
Paul Forrest Lewis, Esq.
Andrew Edward Swan, Esq.
LEWIS KUHN SWAN
620 North Tejon Street, Suite 101
Colorado Springs, CO 80903
Telephone: 719-694-3000
The Defendants-Appellants AFFORDABLE SERVICES CORP. and WALTER
SCOTT SPENCER are represented by:
Gregory E. Givens, Esq.
GREGORY E. GIVENS LAW OFFICES
18 North Sierra Madre Street, Suite E
Colorado Springs, CO 80903
Telephone: 719/291-4353
ALMOST FAMILY: Stein Appeals Order in Securities Suit to 6th Cir.
-----------------------------------------------------------------
Plaintiff Leonard Stein filed an appeal from the District Court's
Order entered in the lawsuit captioned as In re: ALMOST FAMILY,
INC., SECURITIES LITIGATION, Case No. 3:18-cv-00040, in the U.S.
District Court for the Western District of Kentucky (Louisville).
The related cases are Case No. 3:18-cv-00129 and Case No.
3:18-cv-00130.
As previously reported in the Class Action Reporter, Judge Rebecca
Grady Jennings of the U.S. District Court for the Western District
of Kentucky, Louisville Division, (i) granted the Defendants'
Motion to Dismiss; (ii) granted the Defendant' Motion to Strike the
Affidavit of Plaintiff's Purported Expert; and (iii) denied as moot
the Plaintiffs' Motion for Substitution of Party for Deceased
Defendant Steven B. Bing.
The Plaintiffs filed a First Amended Complaint ("FAC") alleging
violations of Section 14(a), 20(a) of the Securities Exchange Act,
and breach of fiduciary duties.
The appellate case is captioned as LEONARD STEIN and JORDAN
ROSENBLATT, Individually and on Behalf of All Others Similarly
Situated v. ALMOST FAMILY, INC.; WILLIAM B. YARMUTH; STEVEN B.
BING; DONALD G. MCCLINTON; TYREE G. WILBURN; JONATHAN DAVID
GOLDBERG; W. EARL REED, III; HENRY M. ALTMAN, JR.; LHC GROUP, INC.;
CLIFFORD S. HOLTZ; and HAMMER MERGER SUB, INC., Case No. 20-5302,
in the United States Court of Appeals for the Sixth Circuit.
Almost Family provides senior healthcare services. The Company
offers senior skilled nursing care management, cardiovascular
disease treatment, physical rehabilitation, and speech therapy
services. Almost Family serves patients throughout the United
States.[BN]
The Plaintiffs-Appellants are represented by:
James M. Wilson, Jr., Esq.
FARUQI & FARUQI
685 Third Avenue, 26th Floor
New York, NY 10017
Telephone: 212 983-9330
The Defendants-Appellees are represented by:
Cory J. Skolnick, Esq.
FROST BROWN TODD
400 W. Market Street, 32nd Floor
Louisville, KY 40202-3363
Telephone: 502-589-5400
APEX USA: Pearce, et al. Seek to Certify Class of J-1 Visa Holders
------------------------------------------------------------------
In the class action lawsuit captioned as CHRISTINE PEARCE, ANTHONY
KENNEDY, and DORRET FRANCIS, on behalf of themselves and all others
similarly situated, v. APEX USA, INC.; HOTELMACHER, LLC, dba
HOLIDAY INN EXPRESS; SONTAG, INC. dba HAMPTON INN CLINTON;
STEAKMACHER, LLC, dba MONTANA MIKE’S STEAKHOUSE; SCHUMACHER
INVESTMENTS, LLC, dba WATER ZOO INDOOR WATER PARK; WALTER
SCHUMACHER; and CAROLYN SCHUMACHER, Case No. 5:18-cv-00583-SLP
(W.D. Okla.), the Plaintiffs Christine Pearce, Anthony Kennedy, and
Dorret Francis move the Court for an order:
1. certifying a class of:
"approximately 200 J-1 visa holders who were sponsored by
Defendant Apex USA, Inc., to work in Clinton, Oklahoma,
at companies controlled and operated by Defendants Walter
and Carolyn Schumacher."
2. appointing themselves as class representative; and
3. appointing their attorneys as class counsel.
As alleged in Plaintiffs' complaint and corroborated through class
discovery, the Defendants implemented a detailed scheme to recruit
students from the Dominican Republic, Indonesia, India, Jamaica and
other developing countries as part of purported cultural exchange
programs to obtain cheap and easily exploited labor for their
hospitality businesses in Clinton, Oklahoma.
The J-1 Exchange Visitor Program (the "J-1 Program") was created by
Congress to encourage diplomacy and to "strengthen the ties which
unite us with other nations" through cultural exchange. Among the
numerous J-1 Program categories, two have been particularly
susceptible to exploitation: the Summer Work Travel Program, which
promises college students an opportunity to work and travel in the
United States during their summer break, and the Trainee and Intern
Program, which promises students and recent graduates an
opportunity "to enhance [their] skills and expertise in their
academic or occupational fields."
The Plaintiffs brought this action on behalf of themselves and a
group of similarly situated J-1 Workers to recover damages arising
from violations of their rights under the Trafficking Victims
Protection Reauthorization Act (TVPRA).
The Defendants are doing business in the hospitality industry. Apex
USA is an international trade and development company.
A copy of the Plaintiffs' motion for certification is available
from PacerMonitor.com at https://bit.ly/3kAZBSl at no extra
charge.[CC]
The Plaintiffs are represented by:
Meghan Lambert, Esq.
ACLU OF OKLAHOMA
P.O. Box 13327
Oklahoma City, OK 73113
Telephone: (405) 525-3831
Facsimile: (405) 524-2296
E-mail: mlambert@acluok.org
- and -
George Warner, Esq.
LEGAL AID AT WORK
180 Montgomery Street, Suite 600
San Francisco, CA 94104
Telephone: (415) 864-8848
Facsimile: (415) 593-0096
E-mail: gwarner@legalaidatwork.org
- and -
Eben Colby, Esq.
Catherine Fisher, Esq.
500 Boylston Street, 23rd Floor
Boston, MA 02116
Telephone: (617) 573-4800
Facsimile: (617) 573-4822
E-mail: Eben.Colby@probonolaw.com
Catherine.Fisher@probonolaw.com
- and -
Christopher J. Willett, Esq.
Caitlin Boehne, Esq.
Rebecca Eisenbrey, Esq.
EQUAL JUSTICE CENTER
510 Congress Ave., Ste. 206
Austin, Texas 78704
Telephone: (512) 474-0007
Facsimile: (512) 474-0008
E-mail: cwillett@equaljusticecenter.org
cboehne@equaljusticecenter.org
reisenbrey@equaljusticecenter.org
AQUA CARPATICA: Jaquez Sues in S.D. New York Over ADA Violation
---------------------------------------------------------------
A class action lawsuit has been filed against Aqua Carpatica USA,
Inc. The case is styled as Ramon Jaquez, on behalf of himself and
all others similarly situated v. Aqua Carpatica USA, Inc., Case No.
1:20-cv-08487 (S.D.N.Y., Oct. 12, 2020).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
AQUA Carpatica is dedicated to educating consumers regarding the
consequences of nitrates in drinking water, as exemplified by the
brand's international campaigns enacted to inform the public about
the content of their drinking water.[BN]
The Plaintiff is represented by:
Yitzchak Zelman, Esq.
MARCUS & ZELMAN LLC
701 Cookman Avenue, Suite 300
Asbury Park, NJ 07712
Phone: (845) 367-7146
Fax: (732) 298-6256
Email: yzelman@marcuszelman.com
ASPEN GROUP: Hedges Sues in S.D. New York Alleging ADA Violation
----------------------------------------------------------------
A class action lawsuit has been filed against Aspen Group, Inc. The
case is styled as Donna Hedges, on behalf of herself and all other
persons similarly situated v. Aspen Group, Inc., Case No.
1:20-cv-08498 (S.D.N.Y., Oct. 12, 2020).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Aspen Group, Inc., is an education technology holding company that
leverages its infrastructure and expertise to allow its two
universities, Aspen University and United States University, to
deliver on the vision of making college affordable again.[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
BAIDU INC: Levi & Korsinsky Reminds of October 19 Deadline
----------------------------------------------------------
The following statement is being issued by Levi & Korsinsky, LLP:
To: All persons or entities who purchased or otherwise acquired
securities of Baidu, Inc. ("Baidu") (NASDAQ: BIDU) between April 8,
2016 and August 13, 2020. You are hereby notified that a securities
class action lawsuit has been commenced in the the United States
District Court for the Eastern District of New York. To get more
information go to:
https://www.zlk.com/pslra-1/baidu-inc-information-request-form-2?prid=9254&wire=5
or contact Joseph E. Levi, Esq. either via email at
jlevi@levikorsinsky.com or by telephone at (212) 363-7500. There is
no cost or obligation to you.
The complaint alleges that throughout the class period Defendants
issued materially false and/or misleading statements and/or failed
to disclose that: (1) Baidu misrepresented the financial and
business condition of iQIYI; (2) iQIYI had inadequate controls; and
(3) as a result, Defendants' public statements were materially
false and/or misleading at all relevant times.
If you suffered a loss in Baidu you have until October 19, 2020 to
request that the Court appoint you as lead plaintiff. Your ability
to share in any recovery doesn't require that you serve as a lead
plaintiff.
Levi & Korsinsky is a nationally recognized firm with offices in
New York, California, Connecticut, and Washington D.C. The firm's
attorneys have extensive expertise and experience representing
investors in securities litigation and have recovered hundreds of
millions of dollars for aggrieved shareholders. Attorney
advertising. Prior results do not guarantee similar outcomes.
CONTACT:
Levi & Korsinsky, LLP
Joseph E. Levi, Esq.
55 Broadway, 10th Floor
New York, NY 10006
jlevi@levikorsinsky.com
Tel: (212) 363-7500
Fax: (212) 363-7171
www.zlk.com [GN]
BAIDU INC: Rosen Law Firm Reminds of October 19 Deadline
--------------------------------------------------------
Rosen Law Firm, a global investor rights law firm, reminds
purchasers and those who otherwise acquired the securities of
Baidu, Inc. (NASDAQ: BIDU) between April 8, 2016 and August 13,
2020, inclusive (the "Class Period"), of the important October 19,
2020 lead plaintiff deadline in the securities class action
commenced by the firm. The lawsuit seeks to recover damages for
Baidu investors under the federal securities laws.
To join the Baidu class action, go to
http://www.rosenlegal.com/cases-register-1925.htmlor call Phillip
Kim, Esq. toll-free at 866-767-3653 or email pkim@rosenlegal.com or
cases@rosenlegal.com for information on the class action.
NO CLASS HAS YET BEEN CERTIFIED IN THE ABOVE ACTION. UNTIL A CLASS
IS CERTIFIED, YOU ARE NOT REPRESENTED BY COUNSEL UNLESS YOU RETAIN
ONE. YOU MAY RETAIN COUNSEL OF YOUR CHOICE. YOU MAY ALSO REMAIN AN
ABSENT CLASS MEMBER AND DO NOTHING AT THIS POINT. AN INVESTOR'S
ABILITY TO SHARE IN ANY POTENTIAL FUTURE RECOVERY IS NOT DEPENDENT
UPON SERVING AS LEAD PLAINTIFF.
According to the lawsuit, defendants throughout the Class Period
made false and/or misleading statements and/or failed to disclose
that: (1) Baidu misrepresented the financial and business condition
of iQIYI; (2) iQIYI had inadequate controls; and (3) as a result,
defendants' public statements were materially false and/or
misleading at all relevant times. When the true details entered
the market, the lawsuit claims that investors suffered damages.
A class action lawsuit has already been filed. If you wish to serve
as lead plaintiff, you must move the Court no later than October
19, 2020. A lead plaintiff is a representative party acting on
behalf of other class members in directing the litigation. If you
wish to join the litigation, go to
http://www.rosenlegal.com/cases-register-1925.htmlor to discuss
your rights or interests regarding this class action, please
contact Phillip Kim, Esq. of Rosen Law Firm toll free at
866-767-3653 or via e-mail at pkim@rosenlegal.com or
cases@rosenlegal.com.
Rosen Law Firm represents investors throughout the globe,
concentrating its practice in securities class actions and
shareholder derivative litigation. Rosen Law Firm was Ranked No. 1
by ISS Securities Class Action Services for number of securities
class action settlements in 2017. The firm has been ranked in the
top 3 each year since 2013. Rosen Law Firm has achieved the largest
ever securities class action settlement against a Chinese Company.
Rosen Law Firm's attorneys are ranked and recognized by numerous
independent and respected sources. Rosen Law Firm has secured
hundreds of millions of dollars for investors. Attorney
Advertising. Prior results do not guarantee a similar outcome.
Contact Information:
Laurence Rosen, Esq.
Phillip Kim, Esq.
The Rosen Law Firm, P.A.
275 Madison Avenue, 40th Floor
New York, NY 10016
Tel: (212) 686-1060
Toll Free: (866) 767-3653
Fax: (212) 202-3827
lrosen@rosenlegal.com
pkim@rosenlegal.com
cases@rosenlegal.com
www.rosenlegal.com [GN]
BANK OF AMERICA: Heinert Appeals W.D.N.Y. Rulings to 2nd Circuit
----------------------------------------------------------------
Plaintiffs Mary Beth Heinert and Richard H. Schultz, Jr., filed an
appeal from the District Court's Decision and Order dated Nov. 10,
18, 2019, and Judgment dated Jan. 28, 2020, entered in the lawsuit
styled Heinert v. Bank of America N.A., Case No. 19-cv-6081, in the
U.S. District Court for the Western District of New York
(Rochester).
The District judge tossed out a suit brought by the Plaintiffs
claiming the Defendants facilitated a $102 million Ponzi scheme,
finding the investors hadn't plausibly alleged the banks knew about
the scheme.
The Plaintiffs brought this action on behalf of themselves and over
600 other investors, alleging that several individuals, employees
of Defendants Bank of America, N.A. and its successor, Citizens
Bank, N.A., perpetrated a nearly decade-long Ponzi scheme by which
the Plaintiffs and other putative class members were defrauded of
approximately 102 million dollars.
The appellate case is captioned as Mary Beth Heinert and Richard H.
Schultz, Jr., on behalf of themselves and all others similarly
situated, Plaintiffs-Appellants v. Bank of America N.A. and
Citizens Bank N.A., the Defendants-Appellees; and Perry Santillo,
Christopher Parris, Dominic Siwik, Paul Anthony LaRocco, John
Piccarreto, and Thomas Brenner, Defendants, Case No. 20-691, in the
United States Court of Appeals for the Second Circuit.
Bank of America operates as a bank. The Bank offers saving and
current account, investment and financial services, online banking,
and mortgage and non-mortgage loan facilities, as well as issues
credit card and business loans. Bank of America serves clients
worldwide.[BN]
Plaintiffs-Appellants Mary Beth Heinert and Richard H. Schultz,
Jr., on behalf of themselves and all others similarly situated, are
represented by:
Benjamin J. Widlanski, Esq.
KOZYAK TROPIN & THROCKMORTON LLP
2525 Ponce de Leon Boulevard
Coral Gables, FL 33134
Telephone: 305 372-1800
Defendant-Appellee Bank of America N.A. is represented by:
Pamela A. Miller, Esq.
O'MELVENY & MYERS LLP
Times Square Tower
7 Times Square
New York, NY 10036
Telephone: 212 326-2088
- and -
James Nonkes, Esq.
HARRIS BEACH PLLC
99 Garnsey Road
Pittsford, NY 14534
Telephone: 585 419-8611
Defendant-Appellee Citizens Bank N.A. is represented by
Michael E. Pastore, Esq.
MINTZ, LEVIN, COHN, FERRIS
GLOVSKY AND POPEO, P.C.
1 Financial Center
Boston, MA 02111
Telephone: 617 542-6000
BLINK CHARGING: Glancy Prongay Reminds of October 23 Deadline
-------------------------------------------------------------
Glancy Prongay & Murray LLP ("GPM") reminds investors of the
upcoming October 23, 2020 deadline to file a lead plaintiff motion
in the class action filed on behalf of investors who purchased
Blink Charging Company ("Blink" or "the Company") (NASDAQ: BLNK)
common stock between March 6, 2020, and August 19, 2020, inclusive
(the "Class Period").
If you suffered a loss on your Blink investments or would like to
inquire about potentially pursuing claims to recover your loss
under the federal securities laws, you can submit your contact
information at https://www.glancylaw.com/cases/blink-charging-co/.
You can also contact Charles H. Linehan, of GPM at 310-201-9150,
Toll-Free at 888-773-9224, or via email at
shareholders@glancylaw.com to learn more about your rights.
On August 19, 2020, Culper Research issued a report alleging, among
other things, that "the Company has vastly exaggerated the size of
its EV charging network" and estimated that Blink's "functional
public charging station network consists of just 2,192 stations, a
mere 15% of [the Company's] claim." Culper further alleged that its
"investigators confirmed what Blink's financials already suggest:
almost no one uses Blink's charging stations, many of which are in
utterly decrepit condition."
The same day, Mariner Research Group published another report,
alleging that the Company's "revenue growth has significantly
seriously lagged the EV industry . . . due to persistent issues
around product quality, customer churn, and user experience."
On this news, the Company's share price fell $2.29, or 22%, to
close at $7.94 per share on August 20, 2020, thereby injuring
investors.
The complaint filed in this class action alleges that throughout
the Class Period, Defendants made materially false and/or
misleading statements, as well as failed to disclose material
adverse facts about the Company's business, operations, and
prospects. Specifically, Defendants failed to disclose to
investors: (1) that many of Blink's charging stations are damaged,
neglected, non-functional, inaccessible; (2) that Blink's purported
partnerships and expansions with other companies were overstated;
(3) that the purported growth of the Company's network has been
overstated; and (4) that, as a result, the Company's public
statements were materially false and materially misleading at all
relevant times.
If you purchased or otherwise acquired Blink common stock during
the Class Period, you may move the Court no later than
October 23, 2020 to request appointment as lead plaintiff in this
putative class action lawsuit. To be a member of the class action
you need not take any action at this time; you may retain counsel
of your choice or take no action and remain an absent member of the
class action. If you wish to learn more about this class action, or
if you have any questions concerning this announcement or your
rights or interests with respect to the pending class action
lawsuit, please contact Charles Linehan, Esquire, of GPM, 1925
Century Park East, Suite 2100, Los Angeles, California 90067 at
310-201-9150, Toll-Free at 888-773-9224, by email to
shareholders@glancylaw.com, or visit our website at
www.glancylaw.com. If you inquire by email please include your
mailing address, telephone number and number of shares purchased.
This press release may be considered Attorney Advertising in some
jurisdictions under the applicable law and ethical rules.
Contacts:
Glancy Prongay & Murray LLP, Los Angeles
Charles Linehan, 310-201-9150 or 888-773-9224
shareholders@glancylaw.com
www.glancylaw.com [GN]
BOSTON UNIVERSITY: Venue of V. Tran Suit Moved to Massachusetts
---------------------------------------------------------------
Judge Haywood S. Gilliam, Jr. of the U.S. District Court for the
Northern District of California transferred the case, VENUS TRAN,
on behalf of herself and all others similarly situated Plaintiff,
v. BOSTON UNIVERSITY, Defendant, Case No. 4:20-cv-03088-HSG (N.D.
Cal.), to the U.S. District Court for the District of
Massachusetts, Boston Division, pursuant to 28 U.S.C. Section
1404(a).
Judge Gilliam has reviewed the stipulation, in which the Parties
consent to the transfer of the case to the District of
Massachusetts, Boston Division. The Judge concludes that the
transfer to the District of Massachusetts is appropriate because
(1) the District of Massachusetts is a convenient forum for the
parties and witnesses, and (2) transfer would serve the interest of
justice and is appropriate where four other virtually identical
class action lawsuits arising out of the same allegations as the
instant lawsuit are pending against the University before the Hon.
Richard J. Stearns.
A full-text copy of the District Court's June 30, 2020 Order is
available at https://bit.ly/350cvDo from Leagle.com.
NATASHA J. BAKER -- natasha@novuslawfirm.com -- IAN W. FORGIE --
ian@novuslawfirm.com -- NOVUS LAW FIRM, INC., Walnut Creek, CA.
LISA A. TENEROWICZ -- latenero@bu.edu -- Appearing Pro Hac Vice,
CHRISTINE S. COLLINS -- cscoll@bu.edu-- Appearing Pro Hac Vice,
Boston University Office of the General Counsel, Boston, MA,
Attorneys for Defendant Boston University.
L. TIMOTHY FISHER -- ltfisher@bursor.com -- BURSOR & FISHER, P.A.,
Walnut Creek, CA,
SARAH N. WESTCOT -- swestcot@bursor.com -- BURSOR & FISHER, P.A.,
Miami, FL, Attorneys for Plaintiff Venus Tran, on behalf of herself
and all others similarly situated.
BRENAU UNIVERSITY: Hedges Files ADA Class Suit in S.D. New York
---------------------------------------------------------------
A class action lawsuit has been filed against Brenau University,
Inc. The case is styled as Donna Hedges, on behalf of herself and
all other persons similarly situated v. Brenau University, Inc.,
Case No. 1:20-cv-08499 (S.D.N.Y., Oct. 12, 2020).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Brenau University is a private, non-profit institution,
headquartered in Gainesville, Georgia, with campuses in Georgia and
Florida.[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
CDBMD INC: Fails to Protect Consumers' PII, Warshawsky Suit Claims
------------------------------------------------------------------
MICHAEL WARSHAWSKY and MICHAEL STEINHAUSER, behalf of themselves
and all others similarly situated v. CDBMD, INC. and CBD
INDUSTRIES, LLC, Case No. 3:20-cv-00562 (W.D.N.C., Oct. 9, 2020),
is brought against the Defendants for negligence, violations of
Florida's Deceptive and Unfair Trade Practices Act and the
California Consumer Privacy Act, and unjust enrichment.
The case arises from the failure of the Defendants to protect the
confidential information of their consumers, including the
Plaintiffs, following the occurrence of two data breaches through
the cbdMD.com website from March 30, 2020, through May 8, 2020, and
again from May 14, 2020, through May 18, 2020. The Plaintiffs
allege that the incidents happened due to the Defendants' failure
to warn their consumers of their inadequate information security
practices and failure to effectively monitor their websites and
ecommerce platforms for security vulnerabilities and incidents. As
a result of the Defendants' negligence and omissions, the
personally identifiable information (PII) of various consumers was
compromised and exposed.
cbdMD, Inc. is a producer and distributor of cannabidiol (CBD)
products, with its principal place of business located at 8845 Red
Oak Boulevard, in Charlotte, North Carolina. CBD Industries, LLC,
is a wholly owned manufacturing and distribution subsidiary of
cbdMD, Inc., with its principal place of business also located at
8845 Red Oak Boulevard.[BN]
The Plaintiffs are represented by:
Jean Martin, Esq.
John A. Yanchunis, Esq.
Ryan J. McGee, Esq.
MORGAN & MORGAN
COMPLEX LITIGATION GROUP
201 N. Franklin Street, 7th Floor
Tampa, FL 33602
Telephone: (813) 223-5505
E-mail: jyanchunis@ForThePeople.com
jeanmartin@ForThePeople.com
rmcgee@ForThePeople.com
- and –
M. Anderson Berry, Esq.
Leslie Guillon, Esq.
CLAYEO C. ARNOLD, A PROFESSIONAL LAW CORP.
865 Howe Avenue
Sacramento, CA 95825
Telephone: (916) 777-7777
E-mail: aberry@justice4you.com
lguillon@justice4you.com
CEDAR SHAKE: 9th Cir. Appeal Filed in Liebo Price Fixing Suit
-------------------------------------------------------------
Plaintiffs Fraser Construction Company, Inc., Hope Systems LLC,
Kuhls Contracting, Jack L. Liebo, PK Morin Enterprises Inc,
ProCraft Exteriors Inc., Sound Renovation LLC and ZRD Group LLC
filed an appeal from the District Court's order entered in the
lawsuit styled Jack Liebo, et al. v. Cedar Shake & Shingle Bureau,
et al., Case No. 2:19-cv-00288-MJP, in the U.S. District Court for
the Western District of Washington (Seattle).
On February 20, 2020, the District judge granted the Waldun
Defendants' motion to dismiss. Defendants Waldun Forest Products,
Ltd. and Waldun Forest Products Partnership are dismissed for lack
of personal jurisdiction. The Plaintiffs' claims under the Sherman
Act are dismissed with prejudice. The Court declines, pursuant to
28 U.S.C. section 1367(c)(3), to exercise supplemental jurisdiction
over the remaining state law claims.
The Plaintiffs allege that the Defendants colluded to fix prices on
cedar shake and shingles.
The appellate case is captioned as FRASER CONSTRUCTION COMPANY,
INC.; SOUND RENOVATION LLC; KUHLS CONTRACTING; PROCRAFT EXTERIORS
INC.; FRASER CONSTRUCTION COMPANY, INC.; SOUND RENOVATION LLC;
KUHLS CONTRACTING; and PROCRAFT EXTERIORS INC., the
Plaintiffs-Appellants v. CEDAR SHAKE & SHINGLE BUREAU, a Washington
nonprofit corporation; WALDUN FOREST PRODUCTS LTD, a British
Columbia corporation; WALDUN FOREST PRODUCTS PARTNERSHIP; WALDUN
FOREST PRODUCTS, LTD.; G&R CEDAR LTD, a British Columbia
corporation; and ANBROOK INDUSTRIES LTD, a British Columbia
corporation, Defendants-Appellees, Case No. 20-35272, in the United
States Court of Appeals for the Ninth Circuit.
As previously reported in the Class Action Reporter on March 19,
2019, Jack L. Liebo alleges that some members of the CSSB,
including the Manufacturer-Defendants, colluded to fix prices on
cedar shake and shingles.
Headquartered in Mission, British Columbia, and maintains an office
in Sumas, Washington, the Cedar Shake & Shingle Bureau is a
Washington nonprofit corporation that is the only trade association
serving the shake and shingle industry in the United States and
Canada. The CSSB Board of Directors comprises several of the
largest manufacturers of cedar shakes and shingles, including
Defendants Waldun and Anbrook, the Manufacturer-Defendants.
CSSB owns the trademark to "Certi-Label" shakes and shingles, which
include the Certi-Grade, Certi-Sawn, Certi-Split, and Certi-Ridge
registered trademark labels. CSSB Certi-Labeled shakes and shingles
account for an estimated 95% of the high-end cedar shake and
shingles utilized in the United States product market. All CSSB
members participate in and sell the vast majority of their high-end
cedar shake and shingle products in the United States.[BN]
Plaintiffs-Appellants JACK L. LIEBO; ZRD GROUP LLC; and PK MORIN
ENTERPRISES INC, DBA Roof Life of Oregon, individually and on
behalf of all others similarly situated, are represented by:
W. Joseph Bruckner, Esq.
LOCKRIDGE GRINDAL NAUEN & HOLSTEIN P.L.L.P
100 Washington Avenue South, Suite 2200
Minneapolis, MN 55401
Telephone: 612 339-6900
- and -
Raymond J. Farrow, Esq.
Mark Adam Griffin, Esq.
Karin B. Swope, Esq.
KELLER ROHRBACK LLP
1201 Third Avenue, Suite 3200
Seattle, WA 98101
Telephone: 206 442-1563
- and -
Randall Scott Newman, Esq.
WOLF HALDENSTEIN ADLER FREEMAN & HERZ LLP
270 Madison Avenue
New York, NY 10016
Telephone: 212 545-4600
Plaintiffs-Appellants FRASER CONSTRUCTION COMPANY, INC.; SOUND
RENOVATION LLC; KUHLS CONTRACTING; HOPE SYSTEMS LLC; and PROCRAFT
EXTERIORS INC., are represented by:
Warren T. Burns, Esq.
Christopher J. Cormier, Esq.
BURNS CHAREST LLP
900 Jackson Street, Suite 500
Dallas, TX 75202
Telephone: 469 904-4550
- and -
Keith Scott Dubanevich, Esq.
STOLL STOLL BERNE LOKTING & SHLACHTER, P.C.
209 SW Oak Street
Portland, OR 97204
Telephone: 503 227-1600
- and -
Gregory Jude Hollon, Esq.
MCNAUL EBEL NAWROT & HELGREN, PLLC
600 University Street
Seattle, WA 98101
Telephone: 206 467-1816
- and -
Lydia Wright, Esq.
365 Canal Street, Suite 1170
New Orleans, LA 70130
Telephone: 504 799-2845
Plaintiff-Appellant HOPE SYSTEMS LLC is represented by:
Nathaniel C. Giddings, Esq.
James Pizzirusso, Esq.
Bonny E. Sweeney, Esq.
HAUSFELD LLP
1700 K Street, NW, Suite 650
Washington, DC 20006
Telephone: 202 540-7200
- and -
Kim D. Stephens, Esq.
TOUSLEY BRAIN STEPHENS PLLC
1700 Seventh Avenue, Suite 2200
Seattle, WA 98101
Defendant-Appellee CEDAR SHAKE & SHINGLE BUREAU, a Washington
nonprofit corporation, is represented by
Larry S. Gangnes, Esq.
LANE POWELL PC
1420 Fifth Avenue
P.O. Box 91302
Seattle, WA 98111-9402
Telephone: 206-223-7036
Defendants-Appellees WALDUN FOREST PRODUCTS LTD, a British Columbia
corporation; WALDUN FOREST PRODUCTS PARTNERSHIP; and WALDUN FOREST
PRODUCTS, LTD., are represented by:
Mathew L. Harrington, Esq.
STOKES LAWRENCE, PS
800 Fifth Ave.
Seattle, WA 98104-3179
Telephone: 206 626-6000
Defendant-Appellee G&R CEDAR LTD, a British Columbia corporation,
is represented by:
Jake J. Ewart, Esq.
Jessica C. Kerr, Esq.
Laurie Lootens Chyz, Esq.
HILLIS CLARK MARTIN & PETERSON, P.S.
999 Third Avenue, Suite 4600
Seattle, WA 98104
Defendant-Appellee ANBROOK INDUSTRIES LTD, a British Columbia
corporation, is represented by:
Molly A. Terwilliger, Esq.
YARMUTH WILSDON PLLC
1420 Fifth Avenue, Suite 1400
Seattle, WA 98101
Telephone: 206 516-3800
- and -
Elizabeth Weinstein, Esq.
YARMUTH LLP
1420 Fifth Avenue, Suite 1400
Seattle, WA 98101
Telephone: 206 516-3800
CENTRAL CALIFORNIA: Ordered to File Revised Urena Suit Settlement
-----------------------------------------------------------------
In the case, JOSE URENA, an individual, on behalf of himself and
others similarly situated, Plaintiff, v. CENTRAL CALIFORNIA ALMOND
GROWERS ASSN., et al, Defendants, Case No. 1:18-cv-00517-NONE-EPG
(E.D. Cal.), Magistrate Judge Erica P. Grosjean of the U.S.
District Court for the Eastern District of California ordered the
parties to file a revised settlement agreement and notice that
complies with the Court's Aug. 11, 2020 order and correctly
identifies the case number within seven days.
On Aug. 11, 2020, the Court entered an order granting preliminary
approval to the parties' settlement agreement in the class action
lawsuit, subject to the parties making certain changes. On Aug.
25, 2020, the Plaintiff filed a declaration showing certain changes
made to the settlement agreement, the procedures to be used to
locate class members, and the notice provided to class members.
However, the revisions do not comply with all provisions of the
Court's Aug. 11, 2020 order.
Specifically, the Court ordered (i) to include an email address to
receive opt-outs and objections and (ii) to include all relevant
objection requirements. The revised settlement agreement states
that the notice of objection must be mailed and that a notice of
objection must include the objector's full name, dates of
employment and basis for objection.
However, the notice does not indicate that the notice of objection
must include the objector's full name, dates of employment, and
basis for the objection. The notice also incorrectly identifies
the case number. The case number is now 1:18-cv-00517-NONE-EPG,
not 1:18-cv-00517-LJO-EPG, rules the Court.
A full-text copy of the Court's Sept. 2, 2020 Order is available at
https://tinyurl.com/y63qrfxr from Leagle.com.
CENTRIC DENIM: Paguada Sues in S.D. New York Over ADA Violation
---------------------------------------------------------------
A class action lawsuit has been filed against Centric Denim USA,
LLC. The case is styled as Josue Paguada, on behalf of himself and
all others similarly situated v. Centric Denim USA, LLC, Case No.
1:20-cv-08478 (S.D.N.Y., Oct. 12, 2020).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Centric Brands Inc. is a leading lifestyle brand collective that
designs, sources, markets and sells high quality products in the
kids, men's and women's apparel.[BN]
The Plaintiff is represented by:
Mars Khaimov, Esq.
10826 64th Avenue, 2nd Floor
Forest Hills, NY 11375
Phone: (917) 915-7415
Email: marskhaimovlaw@gmail.com
CHICAGO, IL: App. Ct. Answers Certified Questions in Underwood Suit
-------------------------------------------------------------------
The Appellate Court of Illinois for the First District, Sixth
Division, answered to two certified questions under Illinois
Supreme Court Rule 308 in a class action complaint against the City
of Chicago and certain Chicago-based funds.
The case is MICHAEL W. UNDERWOOD, JOSEPH M. VUICH, RAYMOND
SCACCHITTI, ROBERT McNULTY, JOHN E. DORN, WILLIAM J. SELKE, JANIECE
R. ARCHER, DENNIS MUSHOL, RICHARD AGUINAGA, JAMES SANDOW, CATHERINE
A. SANDOW, MARIE JOHNSTON, and 338 OTHER NAMED PLAINTIFFS LISTED IN
EXHIBIT 23, Plaintiffs-Appellants, v. THE CITY OF CHICAGO, a
Municipal Corporation, TRUSTEES OF THE POLICEMEN'S ANNUITY AND
BENEFIT FUND OF CHICAGO; TRUSTEES OF THE FIREMEN'S ANNUITY AND
BENEFIT FUND OF CHICAGO; TRUSTEES OF THE MUNICIPAL EMPLOYEES'
ANNUITY AND BENEFIT FUND OF CHICAGO; and TRUSTEES OF THE LABORERS'
& RETIREMENT BOARD EMPLOYEES' ANNUITY & BENEFIT FUND OF CHICAGO;
Defendants-Appellees, Case Nos. 1-18-2180 & 1-19-0358 (cons.) (Ill.
App.).
In the latest installment of decades-long pension litigation, the
Plaintiffs claim that each of the Defendant funds has an
obligation, set out in the 1983 and 1985 amendments to the Illinois
Pension Code (40 ILCS 5/1-101 et seq. (West 2018)) and protected by
the constitution's pension protection clause, to select and
establish a healthcare plan for its annuitants to participate in.
The circuit court denied the Plaintiffs' motion to compel, on the
basis that the existence of such a duty was incompatible with the
Court's decision in Underwood v. City of Chicago, 2017 IL App (1st)
162356 ("Underwood II").
The City of Chicago has historically provided its retirees with
fixed-rate healthcare subsidies funded by city taxes. The City
agreed to provide such subsidies to retired Chicago police officers
and firefighters in 1983 and the Pension Code was amended to
include these subsidies. The legislation contemplated that each of
the funds established for these employees (the Policemen's Annuity
and Benefit Fund of Chicago, Firemen's Annuity and Benefit Fund of
Chicago, Municipal Employees' Annuity and Benefit Fund of Chicago,
and Laborers' & Retirement Board Employees' Annuity & Benefit Fund
of Chicago) would contract with an insurance carrier to provide a
healthcare plan for its retirees and would use the monthly
subsidies provided by the City toward the premiums for such
coverage. To the extent that health insurance premiums exceeded the
monthly subsidies, the excess was to be deducted from a retiree's
monthly annuity unless that individual elected to terminate the
coverage.
In 1987, the City announced that it would stop providing the
subsidies beginning on Jan. 1, 1988, and filed a lawsuit seeking a
declaration that it had no legal obligation to continue doing so
(City of Chicago v. Korshak, No. 87 CH 10134 (Cir. Ct. Cook
County)). The Funds counterclaimed, asserting that the City was
required to continue providing the subsidies.
Before the merits of the case were reached, however, the City and
the Funds settled. The terms of the settlement, which were adopted
by the legislature and made part of the Pension Code provided that
the Funds would continue to subsidize retirees' healthcare premiums
-- at an increased amount -- for an additional 10 years or through
the end of 1997. The City in turn agreed to pay 50% of the cost of
the retirees' healthcare coverage during this time.
The settlement was an interim measure intended to give the parties
time to reach a more permanent resolution of their dispute. They
agreed to continue negotiating in good faith and if they failed to
reach such a resolution at the end of the 10-year period, the
parties would be restored to the same legal status which existed as
of October 19, 1987, when the litigation began. The corresponding
amendments to the Pension Code also made clear that these benefits
were time-limited and would terminate on Dec. 31, 1997.
In 1997, but before the terms of the first settlement expired, the
parties reached a second interim settlement, with similar terms,
that was to last until June 30, 2003.
On April 4, 2003, a final settlement agreement was reached in the
Korshak Litigation. The Funds agreed to make monthly premium
contributions of $85 and $55 (depending on Medicare eligibility)
from July 1, 2003, until June 30, 2008, with those contributions
increasing to $95 and $65, respectively, from July 1, 2008, to June
30, 2013. The City agreed to pay 55% of the healthcare costs, for
life, of individuals who retired on or before June 30, 2005, and
lesser percentages for those who retired after that date. The
agreement also provided that additional healthcare benefits not
provided for in the settlement would be offered and could be
terminated by the City "at its sole discretion."
In a letter dated May 15, 2013, the City made clear to the
plaintiffs that it would continue to provide lifetime healthcare
subsidies for those who retired before Aug. 23, 1989, but that
benefits for those retiring on or after that date would be phased
out entirely by early 2017.
The Plaintiffs in the present action are past or present City
employees who alleged improper diminution of pension benefits under
the Illinois Constitution, breach of contract, estoppel, impairment
of contract, and denial of equal protection. These claims were
brought on behalf of four subclasses: (i) those who retired before
Dec. 31, 1987 (the Korshak subclass), (ii) those who retired
between Jan. 1, 1988, and Aug. 23, 1989 (the Window subclass),
(iii) those who retired on or after Aug. 23, 1989 (subclass three),
and (iv) those who were hired after Aug. 23, 1989 (subclass four).
The City filed a motion to dismiss the claims under section 2-615
of the Code of Civil Procedure, and the circuit court largely
granted that motion. On appeal, the Appellate Court affirmed the
circuit court's ruling that the settlement agreements were
temporary measures that provided only time-limited benefits and
that the 1983 and 1985 amendments to the Pension Code protected the
right to a fixed-rate subsidy, not a particular quantum of buying
power or level of healthcare services. It reversed the circuit
court's order in one respect, holding that the right to such
subsidies also extended to members of subclass four, who began
participating before the 2003 settlement.
On remand, the Plaintiffs filed a fourth amended complaint that the
Funds moved to strike on the basis that it reasserted claims the
Court held were properly dismissed in Underwood II. The Plaintiffs
simultaneously filed a motion to compel each of the Funds to
provide its annuitants with a healthcare plan.
On Sept. 12, 2018, the circuit court struck with prejudice all but
count I (for a declaration of rights protected by the pension
protection clause) of the fourth amended complaint as improperly
repleaded claims barred by the law-of-the-case doctrine. At the
Plaintiffs' request, and citing Rule 304(a), the circuit court
issued an order finding that there was no just reason to delay an
appeal of that ruling.
Following briefing on the issue, on Jan. 16, 2019, the circuit
court also held a hearing to address the Plaintiffs' argument that
the "execution date" of the 2003 settlement -- the cutoff date for
entitlement to the fixed-rate subsidies -- was not a hired-by date
before April 4, 2003, when the last party signed the 2003
settlement, but rather June 16, 2003, when the court overseeing the
Korshak Litigation approved the settlement. The circuit court
rejected the argument, concluding that the proper cutoff date was
indeed April 4, 2003, and subsequently granted the Plaintiffs'
request for a Rule 304(a) finding making that ruling also
immediately appealable.
On Sept. 28, 2018, and Feb. 20, 2019, respectively, the circuit
court made written findings that there was no just reason to delay
enforcement or appeal of the two interlocutory rulings challenged
in these consolidated appeals: (1) the portion of the circuit
court's Sept. 12, 2018, order denying the Plaintiffs' motion to
compel the Funds to provide their annuitants with a healthcare plan
as barred by this court's decision in Underwood II and (2) the
circuit court's finding in its Jan. 16, 2019, order that the
eligibility cutoff for retirees entitled to receive the fixed-rate
subsidies specified in the 1983 and 1985 amendments to the Pension
Code is a hired-by date of April 4, 2003.
The Plaintiffs filed timely notices of appeal from those rulings on
Oct. 10, 2018, and Feb. 22, 2019, and the Court granted a motion to
consolidate the appeals on March 15, 2019.
The Illinois Appellate Court agrees with the Plaintiffs that the
issue was not decided in Underwood II and its consideration by the
circuit court is thus not barred by the law-of-the case doctrine.
The Illinois Appellate Court also agrees with the Plaintiffs that,
for purposes of establishing eligibility for fixed-rate healthcare
subsidies provided by the 1983 and 1985 amendments, the "execution
date" of the 2003 class-action settlement agreement finally
resolving related pension litigation was not the date the agreement
was signed but the date, after having been approved by the circuit
court, that it became an enforceable provision of the Pension
Code.
Although the Plaintiffs purport to bring the interlocutory appeal
pursuant to Illinois Supreme Court Rule 304(a) (eff. March 8,
2016), which governs appeals from final orders disposing of one or
more but fewer than all of the parties or claims in a case, it is
clear that both the parties and the circuit court intended for the
appeal to be narrowly confined to these two discreet issues.
Properly viewed, the appeal is not one challenging a partial
judgment, but rather one seeking answers to certified questions
under Rule 308 (eff. July 1, 2017). Having exercised discretion to
hear the appeal on that basis and now having answered the
questions, the Illinois Appellate Court will vacate those portions
of the circuit court's orders to the contrary, and remand for
further proceedings consistent with her Opinion.
Having treated these consolidated appeals as ones properly brought
under Rule 308, the Illinois Appellate Court answered the certified
questions as follows: (1) The Plaintiffs' motion to compel each of
the Funds to provide its annuitants with a healthcare plan was not
barred by the Court's decision in Underwood II; and (2) The
eligibility cutoff for City employees entitled to receive the
fixed-rate subsidies is June 30, 2003, the last day before the
terms of the court-approved 2003 Settlement were incorporated by
legislative amendment into the Pension Code.
The Illinois Appellate Court vacated those portions of the circuit
court's Sept. 12, 2018 and Jan. 16, 2019 orders to the contrary,
and remanded the case to the circuit court for further proceedings
consistent with its decision.
A full-text copy of the Illinois Appellate Court's June 30, 2020
Opinion is available at https://bit.ly/2Fwx2qh from Leagle.com.
Clinton A. Krislov -- clint@krislovlaw.com -- and Kenneth T.
Goldstein, of Krislov & Associates, Ltd., of Chicago, for
appellants.
Mark A. Flessner, Corporation Counsel, of Chicago (Benna Ruth
Solomon, Myriam Zreczny Kasper, and Sara K. Hornstra, Assistant
Corporation Counsel, of counsel), for appellee City of Chicago.
Cary E. Donham -- cdonham@taftlaw.com -- Graham C. Grady --
ggrady@taftlaw.com -- John F. Kennedy, and Richard Hu, of Taft
Stettinius & Hollister LLP, of Chicago, for appellee Trustees of
the Laborers' and Retirement Board Employees' Annuity and Benefit
Fund of Chicago.
Edward J. Burke -- eburke@bbp-chicago.com -- Mary Patricia Burns --
mburns@bbp-chicago.com -- Vincent D. Pinelli, and Sarah A.
Boeckman, of Burke Burns & Pinelli, Ltd., of Chicago, for appellees
the Trustees of the Firemen's Annuity and Benefit Fund of Chicago
and the Trustees of the Municipal Employees' Annuity and Benefit
Fund of Chicago.
Justin B. Kugler, of Chicago, for other appellee.
CITY UNIVERSITY: Hedges Sues in S.D. New York Over ADA Violation
----------------------------------------------------------------
A class action lawsuit has been filed against City University of
Seattle. The case is styled as Donna Hedges, on behalf of herself
and all other persons similarly situated v. City University of
Seattle, Case No. 1:20-cv-08500 (S.D.N.Y., Oct. 12, 2020).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
City University of Seattle is a private university in Seattle,
Washington, which offers flexible online and onsite doctoral,
graduate and bachelor's degrees, designed for working adults.[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
CORT BUSINESS: Cota Sues in S.D. California Over Violation of ADA
-----------------------------------------------------------------
A class action lawsuit has been filed against Cort Business
Services Corporation, et al. The case is styled as Julissa Cota,
individually and on behalf of all others similarly situated v. Cort
Business Services Corporation, A Delaware corporation; DOES 1 to
10, inclusive, Case No. 3:20-cv-01995-CAB-DEB (S.D. Cal., Oct. 12,
2020).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Cort Business Services Corporation provides furniture rental
services. The Company offers home and office, trade shows, event,
and student furniture rental services.[BN]
The Plaintiff is represented by:
Thiago M. Coelho, Esq.
WILSHIRE LAW FIRM
3055 Wilshire Boulevard, 12th Floor
Los Angeles, CA 90010
Phone: (213) 381-9988
Email: thiago@wilshirelawfirm.com
COVENANT AVIATION: Fails to Pay Minimum & OT Wages, Alfardi Says
----------------------------------------------------------------
MARY ALFARDI, individually and on behalf of other members of the
general public similarly situated v. COVENANT AVIATION SECURITY,
LLC, an Illinois limited liability company, and DOES 1 through 100,
inclusive, Case No. CGC-20-586975 (Cal. Sup., Oct. 5, 2020), is
brought against the Defendants for their alleged unlawful policies
and practices in violation of the California Labor Code and
California Business and Professions Code.
According to the complaint, the Defendants failed to compensate the
Plaintiff and other similarly situated employees the applicable
minimum wage for all hours worked and their overtime hours at the
correct hourly rate, and failed to reimburse them for necessary
business-related expenses.
The Plaintiff was employed by the Defendant from May 18, 2009, to
July 11, 2017, as a non-exempt, hourly-paid employee to perform
duties that include screening passengers at San Francisco
International Airport.
Covenant Aviation Security, LLC, is a Chicago company that provides
security services to the aviation industry.[BN]
The Plaintiff is represented by:
Ronald H. Bae, Esq.
Olivia D. Scharrer, Esq.
AEQUITAS LEGAL GROUP
A Professional Law Corporation
1156 E. Green St., Suite 200
Pasadena, CA 91106
Tel: (213) 674-6080
Fax: (213) 674-6081
E-mail: rbae@AequitasLegalGroup.com
oscharrer@AequitasLegalGroup.com
CUMBERLAND COUNTY, NJ: Archie Prisoners Class Suit Terminated
-------------------------------------------------------------
Judge Noel L. Hillman of the U.S. District Court for the District
of New Jersey terminated the case, SHAWN ARCHIE, SR., et al.,
Plaintiffs, v. RICHARD SMITH, et al., Defendants, Civ. No. 20-7907
(NLH) (KMW) (D. N.J.).
The Plaintiffs are a group of inmates presently incarcerated at the
Cumberland County Jail in Bridgeton, New Jersey, proposing to file
a class action regarding the conditions of their confinement in
light of the coronavirus COVID-19 pandemic.
Pursuant to Local Civil Rule 54.3, the Clerk will not be required
to enter any suit, file any paper, issue any process, or render any
other service for which a fee is prescribed, unless the fee is paid
in advance. Under certain circumstances, however, the Court may
permit an indigent plaintiff to proceed in forma pauperis.
The entire fee to be paid in advance of filing a civil complaint is
$400. That fee includes a filing fee of $350 plus an
administrative fee of $50, for a total of $400. A prisoner who is
granted in forma pauperis status will, instead, be assessed a
filing fee of $350 and will not be responsible for the $50
administrative fee. A prisoner who is denied in forma pauperis
status must pay the full $400, including the $350 filing fee and
the $50 administrative fee, before the complaint will be filed.
Judge Hillman finds that the Plaintiffs may not have known when
they submitted the Complaint that they must pay the filing fee, and
that even if the full filing fee, or any part of it, has been paid,
the Court must dismiss the case if it finds that the action: (1) is
frivolous or malicious; (2) fails to state a claim upon which
relief may be granted; or (3) seeks monetary relief against a
defendant who is immune from such relief. If the Court dismisses
the case for any of these reasons, Section 1915 does not suspend
installment payments of the filing fee or permit the prisoner to
get back the filing fee, or any part of it, that has already been
paid.
If the prisoner has, on three or more prior occasions while
incarcerated, brought in federal court an action or appeal that was
dismissed on the grounds that it was frivolous or malicious, or
that it failed to state a claim upon which relief may be granted,
he cannot bring another action in forma pauperis unless he is in
imminent danger of serious physical injury.
The Prison Litigation Reform Act requires "each prisoner to pay a
full fee" when multiple prisoners are plaintiffs. None of the
named Plaintiffs have submitted the filing fee or in forma pauperis
applications. The Judge will instruct the Clerk send the
Plaintiffs in forma pauperis applications. All the Plaintiffs must
complete the applications and submit certified account statements.
For the reasons set forth, Judge Hillam ordered the Clerk of the
Court to administratively terminate the action, without filing the
Complaint or assessing a filing fee. The Clerk is directed to
reopen the matter once the Plaintiffs submit a new application or
pay the filing fee.
A full-text copy of the District Court's June 30, 2020 Opinion is
available at https://bit.ly/2FCwW0w from Leagle.com.
Shawn Archie, Cumberland County Jail, Bridgeton, NJ.
Raymond Lamar Brown, Cumberland County Jail, Bridgeton, NJ.
Kamal Martin, Cumberland County Jail, Bridgeton, NJ.
Phillip Gault, Jr., Cumberland County Jail, Bridgeton, NJ.
Jeffrey Paglione, Cumberland County Jail, Bridgeton, NJ.
John Clark, Cumberland County Jail, Bridgeton, NJ.
Desmond Rodgers, Cumberland County Jail, Bridgeton, NJ.
Todd Ford, Jr., Cumberland County Jail, Bridgeton, NJ. Plaintiffs
Pro se.
CVS HEALTH: Prelim. Approval of Perez Suit Settlement Recommended
-----------------------------------------------------------------
In the case, FELIX PEREZ, an individual, on his own behalf and on
behalf of all others similarly situated, Plaintiff, v. CVS HEALTH
CORPORATION, a Delaware corporation a/d/a CVS Caremark; CVS
PHARMACY, INC., a Rhode Island corporation; and DOES 1-100,
inclusive, Defendant, Case No. 1:19-cv-00449-DAD-BAM (E.D. Cal.),
Magistrate Judge Barbara A. McAuliffe of the U.S. District Court
for the Eastern District of California recommended that Plaintiff
Felix Perez's Renewed Motion for Preliminary Approval of Class
Action Settlement be granted.
Currently pending before the Court is Plaintiff Perez's Renewed
Motion for Preliminary Approval. The matter was heard on July 31,
2020. Having considered the motion, the points and authorities,
the arguments of counsel and the supplemental briefing submitted in
support of the Motion, the Magistrate recommended that the Renewed
Motion for Preliminary Approval of the Class Action Settlement be
granted,
The Plaintiff has filed a Third Amended Complaint to conform the
pleadings with the scope and definitions of the Settlement
Agreement. The Defendants will not be required to answer the Third
Amended Complaint and will not be deemed to have waived any
defenses thereto, including the ability to compel some or all
claims to individual arbitration.
The Plaintiff alleges that the Defendants subjected their hourly
distribution center employees to security checks resulting in
deficient meal and rest periods and time that was not fully
compensated. The third amended complaint, filed on June 24, 2020,
alleges that the Defendants: (1) failed to pay for all hours
worked; (2) failed to pay overtime wages; (3) failed to provide
meal and rest breaks in violation of the California Labor Code and
applicable wage order; (4) failed to provide paid vacation wages at
the end of employment in violation of the California Labor Code;
(5) failed to provide accurate, itemized wage statements in
violation of the California Labor Code and applicable wage order;
(6) failed to pay all wages due at termination in violation of the
California Labor Code; (7) engaged in unfair competition in
violation of California Business & Professions Code Sections 17200
et seq.; and (8) violated PAGA.
For settlement purposes only, Magistrate Judge McAuliffe
recommended conditionally certifying the settlement class as
follows: All CVS non-exempt employees who worked in California
distribution centers between Jan. 16, 2015 and the earlier of (1)
the Date of Preliminary Approval of this settlement, or (2) Aug.
15, 2020 inclusive.
She preliminarily finds that the Settlement, which provides for a
Gross Settlement Amount of $1.85 million for approximately 3,405
current and former non-exempt distribution center employees,
appears to be within the range of reasonableness of a settlement
that could ultimately be given final approval by the Court.
Magistrate Judge McAuliffe also finds that the notice of settlement
that the Plaintiff provided to the LWDA satisfies the notice
requirements of the California Private Attorneys General Act. She
recommended approving as to form and content the proposed Class
Notice to be distributed to the Class Members.
For purposes of settlement only, the Magistrate Judge recommended
appointing ILYM Group, LLC be as the Settlement Administrator. She
also recommended that the mailing of the Notices to Class Members
be directed in accordance with the schedule set forth and the other
procedures described in the Settlement Agreement.
For purposes of settlement only, Magistrate Judge McAuliffe finds
that Felix Perez is a suitable class representative and recommended
that he be appointed as the representative for the settlement class
conditionally certified. She further recommended appointing
Bradley/Grombacher, LLP as the Class Counsel.
The Magistrate Judge recommended that the following dates govern
for purposes of the Settlement:
a. 20 calendar days after the Court adopts the Settlement
findings and recommendations granting preliminary approval of the
Settlement Agreement -- Last day for Defendant to produce Employee
Data to the Settlement Administrator
b. 30 calendar days after the Curt adopts the findings and
recommendations granting preliminary approval of the Settlement
Agreement -- Last day for the Settlement Administrator to mail
Notices to all Class Members
c. 45 calendar days after the Settlement Administrator mails
the Notices - Last day for Class Members to submit Requests for
Exclusion or Objections to the Settlement
d. Jan. 29, 2021 -- Last day for Plaintiff to file the Motion
for Final Approval of Class Action Settlement and Motion for
Attorneys' Fees, Costs, and Class Representative Enhancement
Payments
e. Feb. 26, 2021 at 9:00 a.m. -- Hearing on Motion for Final
Approval of Class Action Settlement and Motion for Attorneys'
McAuliffe Fees, Costs, and Class Representative Enhancement
Payments
As of the date the Order, all dates and deadlines associated with
the Actions will be stayed, other than those pertaining to the
administration of the Settlement of the Action.
These Findings and Recommendations will be submitted to the United
States District Judge assigned to the case. Within 14 days after
being served with these Findings and Recommendations, the parties
may file written objections with the Court. The document should be
captioned "Objections to Magistrate Judge's Findings and
Recommendations."
A full-text copy of the Court's Sept. 1, 2020 Findings &
Recommendations is available at https://tinyurl.com/y2namgwv from
Leagle.com.
DAVID SAXE: Settlement in Bauman Suit Gets Final Approval
---------------------------------------------------------
In the case, JEREMY BAUMAN, individually and on behalf of all
persons similarly situated, Plaintiffs, v. DAVID SAXE, et al.,
Defendants. BIJAN RAZILOU, et al., Plaintiffs, v. V THEATER GROUP,
LLC, et al., Defendants, Case No. 2:14-cv-01125-RFB-BNW,
Consolidation with Case No. 2:14-cv-01160-RFB-BNW (D. Nev.), Judge
Richard F. Boulware, II of the U.S. District Court for the District
of Nevada granted final approval of the proposed class settlement.
A settlement class has been certified for settlement purposes,
defined as: All persons and entities to whom Defendants attempted
transmission of one or more text messages, between and including
April 1, 2013 to May 31, 2014, to a telephone number assigned to a
cell phone at the time of transmission.
The Court finds that the Settlement Agreement was negotiated at
arm's length by experienced counsel who were fully informed of the
facts and circumstances of the Action and of the strengths and
weaknesses of their respective positions.
The Court finally certified the Settlement Class for settlement
purposes and finds, for settlement purposes, that the Action
satisfies all the requirements of Rule 23 of the Federal Rules of
Civil Procedure.
The Court finally appointed the law firms of Sound Justice Law
Group, PLLC; Mazie Slater Katz & Freeman, LLC; Bailey Kennedy, LLP;
Strategic Legal Practices, APC; and Marquis Aurbach Coffing, as the
Class Counsel for the Settlement Class; and Albert H. Kirby of
Sound Justice Law Group, PLLC and Matthew Mendelsohn of Mazie
Slater Katz & Freeman, LLC, as the Lead Class Counsel for the
Settlement Class.
Judge Boulware finally designated Plaintiffs Jeremy Bauman and
Bijan Razilou as the Class Representatives.
The Judge approved the plan of distribution for the Cash Fund as
set forth in the Settlement Agreement. The Settlement
Administrator is ordered to comply with the terms of the Agreement
with respect to distribution of Cash Fund.
The Class Counsel is awarded $668,320.10 for attorneys' fees and
$101,679.90 in litigation expenses, including settlement
administration costs, from the Cash Fund. The amount will be paid
to the Class Counsel from the Cash Fund in accordance with the
terms of the Settlement Agreement. The Class Counsel will be
responsible for allocating and will allocate the award of
attorneys' fees, costs, and expenses that are awarded amongst and
between the Class Counsel.
The Class Representatives are compensated in the amount of $15,000
each for their efforts in the case.
Judge Boulware dismissed all the Released Claims, with prejudice,
without costs to any Party, except as expressly provided for in the
Settlement Agreement.
Without further order of the Court, the Settling Parties may agree
to reasonably necessary extensions of time to carry out any of the
provisions of the Settlement Agreement.
A full-text copy of the District Court's June 30, 2020 Order is
available at https://bit.ly/31rGbIH from Leagle.com.
DEPT. OF JUSTICE: Onosamba-Ohindo Suit Wins Class Status
--------------------------------------------------------
In the class action lawsuit captioned as 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, the Petitioners/Plaintiffs, v. WILLIAM BARR, in his
official capacity as Attorney General of the Department of Justice,
et al., the Respondents/Defendants, Case No. 1:20-cv-00290-EAW
(W.D.N.Y.), the Hon. Judge Elizabeth A. Wolford entered an order:
1. granting in part and denying in part the Respondents'
motion to dismiss:
the claims of the Subclass Petitioner and the claims of
the putative class and subclass members detained at the
RCC are dismissed without prejudice, all Respondents aside
from Jeffrey Searls are dismissed without prejudice, and
Respondents' motion is denied as to Class Petitioner's due
process claims and INA claim;
2. granting in part and denying in part the Petitioners'
motion for class certification, and the Court otherwise
reserves decision:
Specifically, the Court certifies 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.";
The motion is denied 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. The Court reserves
decision on whether it will certify the Putative Post-
Hearing Class, and a separate Text Order shall be
issued setting forth a briefing schedule on that
aspect of the class certification motion;
further
3. granting in part and denying in part the Petitioners'
motion for a preliminary injunction:
Specifically, the Court grants a preliminary injunction as
to the constitutional claims of the Pre-Hearing Class and
orders 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
Court otherwise denies the motion for a preliminary
injunction, including to the extent relief is sought by
the Putative Post-Hearing Class and the Subclass
Petitioner;
4. directing the parties to confer within seven days of the
date of this Decision and Order to develop a plan for the
following:
a. 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
b. developing a notice, in English, Spanish, and any other
language deemed appropriate by the parties, summarizing
the requirements of this Decision and Order for
distribution to the Pre-Hearing Class members; and
5. directing the parties within ten days to provide a status
report to the Court detailing the agreed-upon plan for the
matters discussed above, after which the Court will, if
necessary, issue an updated order.
The Petitioners/plaintiffs 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.
The Petitioners seek class certification; a declaratory judgment
that the "actions, practices, policies, and/or omissions" of
defendants/respondents William 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 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.
A copy of the Court's Order is available from PacerMonitor.com at
https://bit.ly/3kBj8lK at no extra charge.[CC]
DEVON ENERGY: Court Denies Bid to Dismiss Wilson FLSA Suit
----------------------------------------------------------
In the case, JAMES D. WILSON, Individually and on behalf of others
similarly situated, Plaintiff, v. DEVON ENERGY PRODUCTION COMPANY,
LP, and RPC, INC., d/b/a EPI CONSULTANTS, Defendants, Case No.
CIV-20-245-C (W.D. Okla.), Judge Robin J. Cauthron of the U.S.
District Court for the Western District of Oklahoma denied the
Defendants' Partial Motion to Dismiss.
In their Motion to Dismiss the Plaintiff's collective action claim,
the Defendants argue that the Plaintiff's Complaint fails to
establish that the class he seeks to certify is comprised of
similarly situated persons. According to them, the lack of
specificity in the Complaint makes it impossible for them to
determine who may be a class member or not. In his Response, the
Plaintiff argues that the issues raised by the Defendants are
premature. According to him, challenges to who may or may not be a
class member should be made at the conditional certification stage
rather than on the face of the Complaint.
Judge Cauthron finds that at this stage the allegations in the
Plaintiff's Complaint adequately plead facts which provide fair
notice of the proposed class. The Plaintiff's Complaint alleges
that the Defendants engaged in a pay scheme where certain
individuals were paid a day rate rather than an hourly rate. The
Complaint alleges that these individuals were employees under the
provisions of the Fair Labor Standards Act ("FLSA") rather than
independent contractors and that the Defendants failed to pay
overtime as required by the FLSA.
While the factual allegations of the Complaint could have been more
fully set forth, those allegations are adequate to apprise
Defendants of the nature of the claims and the group of individuals
who may be included in the class. The challenges raised by the
Defendants in the present Motion are more properly presented when a
motion for conditional certification is made. Accordingly,
Defendants' Motion is denied.
A full-text copy of the Court's Sept. 1, 2020 Memorandum Opinion &
Order is available at https://tinyurl.com/y59628zo from
Leagle.com.
DISTRICT OF COLUMBIA: Fails to Properly Pay OT Wages, Marinos Says
------------------------------------------------------------------
MARINOS MARINOS, et al. v. THE DISTRICT OF COLUMBIA and
METROPOLITAN POLICE DEPARTMENT, Case No. 1:20-cv-02828 (D.D.C.,
Oct. 5, 2020), is brought on behalf of the Plaintiffs and all
others similarly situated for the Defendants' alleged violation of
the Fair Labor Standards Act.
The Plaintiffs were employed by the Defendants as police officers,
detectives and/or sergeants. The Plaintiffs allege that the
Defendants failed to pay them overtime compensation at one and
one-half times their regular rate of pay during the time period
beginning March 16, 2020, when the Plaintiffs regularly worked
hours in excess of 171 hours in a 28-day period. The Defendants
allegedly failed to include in its overtime compensation
computation the hazard pay that was provided by the Defendants to
all District of Columbia employees, who are physically required to
report to work to fulfill their official job duties for the
duration of the COVID-19 Public Health Emergency.
According to the complaint, the Defendants failed to provide
backpay to the Plaintiffs up until this time for any unpaid
overtime compensation owed based on the Defendants' failure to
include hazard pay in the regular rate calculation.
The District of Columbia is the capital city of the U.S. located on
the Potomac River bordering Maryland and Virginia. Metropolitan
Police Department is an administrative division of the District of
Columbia.[BN]
The Plaintiff is represented by:
Gregory K. McGillivary, Esq.
Sarah M. Block, Esq.
McGILLIVARY STEELE ELKIN LLP
1101 Vermont Ave. NW, Suite 1000
Washington, DC 20005
Tel: (202) 833-8855
Fax: (202) 452-1090
E-mail: gkm@mselaborlaw.com
smb@mselaborlaw.com
DOORDASH INC: Austin Appeals D. Mass. Decision to First Circuit
---------------------------------------------------------------
Plaintiff Darnell Austin filed an appeal from the District Court's
Memorandum and Order dated September 30, 2019, entered in the
lawsuit styled Darnell Austin, on behalf of himself and all others
similarly situated v. DoorDash, Inc., Case No. 1:17-cv-12498-IT, in
the U.S. District Court for the District of Massachusetts
(Boston).
As previously reported in the Class Action Reporter, the U.S.
District Court for District of Massachusetts issued a Memorandum
and Order allowing the Defendant's Motion to Dismiss and Compel
Arbitration.
The appellate case is captioned as DARNELL AUSTIN, on behalf of
himself and all others similarly situated v. DOORDASH, INC., Case
No. 20-1217, in the United States Court of Appeals for the First
Circuit.
Plaintiff Darnell Austin brings claims under the Massachusetts Wage
Act arising from Defendant DoorDash, Inc.'s alleged failure to pay
the Plaintiff minimum wage and overtime. The Defendant moved to
dismiss and compel arbitration pursuant to the Federal Arbitration
Act.
DoorDash is an on-demand restaurant delivery service founded in
2013 by Stanford students Andy Fang, Stanley Tang, Tony Xu and Evan
Moore.[BN]
The Plaintiff-Appellant is represented by:
Shannon Erika Liss-Riordan, Esq.
Adelaide H. Pagano, Esq.
LICHTEN & LISS-RIORDAN PC
729 Boylston St., Ste. 2000
Boston, MA 02116
Telephone: 617 994-5800
The Defendant-Appellee is represented by:
Francis J. Bingham, Esq.
Michael Mankes, Esq.
LITTLER MENDELSON PC
1 International Pl., Ste. 2700
Boston, MA 02110-0000
Telephone: 617-378-6000
ELLSWORTH CONSTRUCTION: Fails to Pay Overtime Wages, Atwell Says
----------------------------------------------------------------
JEFFREY ALLEN ATWELL, individually and on behalf of others
similarly situated v. ELLSWORTH CONSTRUCTION, LLC, a domestic
limited liability company, Case No. 4:20-cv-00501-GKF-FHM (N.D.
Okla., Oct. 5, 2020), is brought by the Plaintiff against the
Defendant for its alleged failure to pay overtime in violation of
the Fair Labor Standards Act.
The Plaintiff was employed by the Defendant as a foreman and
Supervisor in March 2019 until July 26, 2019.
The Plaintiff alleges that although he frequently worked over 40
hours per week, the Defendant paid him straight time only for all
hours he worked. The Defendant required him to submit timesheets of
his fellow employees that worked the same amount of hours as him,
but he was never required to submit his own timesheets, the
Plaintiff asserts. Additionally, the Defendant did not reimburse
the Plaintiff's out-of-pocket expenses incurred on behalf of the
Defendant in the regular course of his employment.
Ellsworth Construction, LLC, provides pavement maintenance and
other construction services.[BN]
The Plaintiff is represented by:
Charles C. Vaught, Esq.
Jessica N. Vaught, Esq.
ARMSTRONG & VAUGHT, P.L.C.
Tulsa, OK 74114
Tel: (918) 582-2500
Fax: (918) 583-1755
E-mail: cvaught@a-vlaw.com
jvaught@a-vlaw.com
ENVISION HEALTHCARE: $1.85MM Counsel Fees Awarded in McLaughlan
---------------------------------------------------------------
In the case, RENEE MACLAUGHLAN BOZARTH and STELLA BELL,
individually and on behalf of all others similarly situated,
Plaintiffs, v. ENVISION HEALTHCARE CORPORATION, et al., Defendants,
Case No. ED CV 17-1935 FMO (SHKx) (C.D. Cal.), Judge Fernando M.
Olguin of the U.S. District Court for the Central District of
California, pursuant to the Court's Final Approval of Class Action
Settlement, filed contemporaneously with the filing of his
Judgment, ordered that:
(i) Plaintiffs Bozarth and Bell will be paid a service payment
of $2,500 and $1,250, respectively;
(ii) the Class counsel will be paid $1.85 million in attorney's
fees and costs; and
(iii) the Claims Administrator, Rust, will be paid for its fees
and expenses, all in accordance with the terms of the Settlement
Agreement.
All the class members who did not validly and timely request
exclusion from the settlement have released their claims, as set
forth in the Settlement Agreement, against any of the released
parties.
Except as to any class members who have validly and timely
requested exclusion, the action is dismissed with prejudice, with
all parties to bear their own fees and costs except as set forth
herein and in the prior orders of the Court.
A full-text copy of the District Court's June 30, 2020 Judgment is
available at https://bit.ly/2GVUsX0 from Leagle.com.
FERRARA CANDY: 9th Cir. Upholds Approval of Littlejohn Settlement
-----------------------------------------------------------------
In the case, JESSICA LITTLEJOHN, on behalf of herself, all others
similarly situated, and the general public, Plaintiff-Appellee, v.
JAMES COPLAND, Objector-Appellant, v. FERRARA CANDY COMPANY,
Defendant-Appellee, Case No. 19-55805 (9th Cir.), the U.S. Court of
Appeals for the Ninth Circuit affirmed the district court's (i)
rejection of Copland's objection to final approval of the
Settlement, and (ii) final approval of the Settlement.
Plaintiff-Appellee Littlejohn, representing a class of SweeTARTS
candy purchasers, sued Defendant-Appellee Ferrara, the maker of
SweeTARTS, challenging the company's claim that its product
contains "no artificial flavors." Littlejohn argued that SweeTARTS
contain "dl-malic" acid, a commercially manufactured flavoring
ingredient, rendering the "no artificial flavors" claim false and
misleading.
On behalf of the class, Littlejohn sought injunctive relief as well
as restitution and damages based on the "price premium" class
members paid for "an artificially-flavored product that was worth
less than the naturally-flavored product promised by the labels."
Ferrara responded that dl-malic acid is a "flavor enhancer," not a
flavor, and that the company therefore has not misrepresented its
product's ingredients.
The parties entered a settlement agreement requiring Ferrara to
remove the phrase "no artificial flavors" from SweeTARTS packages
and to identify dl-malic acid as an ingredient. Ferrara agreed to
pay $272,000 in attorney's fees, but the Settlement provided no
compensation for the class members, who were required to waive all
future claims. Instead, the class members received the same
benefits as those who "opted out" of the Settlement: both groups
would now be able to "make a learned judgment" about purchasing
SweeTARTS products in the future.
Objector-Appellant James Copland, a class member, objected to final
approval of the Settlement, arguing that the purported injunctive
relief had no settlement value and that valueless injunctive relief
could not justify the class counsel's disproportionate fee.
The district court rejected Copland's objection and approved the
Settlement. First, it noted "the weaknesses" in the case along
with the strengths of Ferrara's defenses and the obstacles to
class-wide recovery, including the risk that the class might take
nothing at trial. Second, it concluded that modification of
SweeTARTS' packaging and advertising "adequately addresses the very
claims raised in the Plaintiff's Complaint, provid[ing] value to
the Class. Third, it concluded that the fee award, which
represented the class counsel's lodestar plus a modest 1.489
multiplier, was reasonable and justified based on multipliers used
in comparable litigation, the excellent results obtained, the
experience and skill of the Counsel, the complexity of issues, the
risk of non-payment and preclusion of other work, and the reaction
of the Class.
Copland timely appealed. Copland argues that reversal is required
under Koby v. ARS National Services, Inc., where the Court held
that a class action settlement of claims under the Fair Debt
Collection Practices Act should not have been approved because it
provided worthless injunctive relief.
The Ninth Circuit holds that in Koby, neither the class members nor
the non-class members received any real benefit because they were
equally likely to be contacted by the debt collector in the future
and the debt collector had already voluntarily changed its
practices in the manner required by the settlement before the
settlement was signed. In the instant case, the district court
found -- and Copland does not dispute -- that SweeTARTS purchasers
tend to be repeat buyers who would derive value from the
Settlement's injunctive relief upon each future purchase of
SweeTARTS. Furthermore, Copland presented no evidence that Ferrara
had already changed, or was planning to change, its labeling
practices prior to agreeing to the Settlement.
The Ninth Circuit holds that the district court applied the correct
legal framework and did not abuse its discretion in approving the
Settlement. The district court reasonably concluded that the
Settlement's injunctive relief provided value to the class, and,
applying Rule 23(e)(2) and our case law, determined that the
Settlement, including the attorney's fees award, was fair,
reasonable, and adequate.
The Ninth Circuit therefore affirmed.
A full-text copy of the Ninth Circuit's June 30, 2020 Memorandum is
available at https://bit.ly/2SUqS6q from Leagle.com.
FITNESS ANYWHERE: Paguada Sues in New York Over Violation of ADA
----------------------------------------------------------------
A class action lawsuit has been filed against Fitness Anywhere LLC.
The case is styled as Dilenia Paguada, on behalf of herself and all
others similarly situated v. Fitness Anywhere LLC, Case No.
1:20-cv-08480 (S.D.N.Y., Oct. 12, 2020).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Fitness Anywhere LLC, doing business as TRX, provides sporting and
athletic goods. The Company offers training products and exercise
programs for athletes.[BN]
The Plaintiff is represented by:
Mars Khaimov, Esq.
10826 64th Avenue, 2nd Floor
Forest Hills, NY 11375
Phone: (917) 915-7415
Email: marskhaimovlaw@gmail.com
FLORIDA: DOC Appeals Order in Harvard Prisoner Suit to 11th Cir.
----------------------------------------------------------------
Defendants Florida Department of Corrections, et al., filed an
appeal from the District Court's Order & Memorandum dated October
24, 2019, entered in the lawsuit styled Jacquann Harvard, et al. v.
Secretary, Florida Department of Corrections, et al., Case No.
4:19-cv-00212-MW-CAS, in the U.S. District Court for the Northern
District of Florida.
On August 6, 2019, the Defendants moved to dismiss the case. They
argued that the Plaintiffs had not exhausted their administrative
remedies, failed to demonstrate standing, and failed to comply with
Rule 8(a)(2) of the Federal Rules of Civil Procedure. On October
24, 2019, District Judge Mark E. Walker denied the Defendants'
motion to dismiss.
On May 8, 2019, six prisoners with mental and/or physical disorders
of the Florida Department of Corrections filed a class-action
lawsuit in the U.S. District Court for the Northern District of
Florida. The case was assigned to Chief Judge Mark E. Walker.
The appellate case is captioned as JACQUANN MARQUIS HARVARD, a.k.a.
Admire Harvard; J H, a minor by and through his parent and natural
guardian Valentine Robinson; ANGEL MEDDLER; JUAN ESPINOSA; JEROME
BURGESS, a.k.a. Sham'la God Allah; JAMES W. KENDRICK, JR., on
behalf of themselves and all others similarly situated; and JOHNNY
HILL, Plaintiffs-Appellees v. SECRETARY, FLORIDA DEPARTMENT OF
CORRECTIONS; and FLORIDA DEPARTMENT OF CORRECTIONS, An agency of
the State of Florida, Defendants-Appellants, Case No. 20-10690, in
the United States Court of Appeals for the Eleventh Circuit.
The Florida Department of Corrections operates state prisons in the
U.S. state of Florida. It has its headquarters in Florida's capital
of Tallahassee. The Florida Department of Corrections operates the
third largest state prison system in the United States.[BN]
Plaintiffs-Appellees JACQUANN MARQUIS HARVARD, a.k.a. Admire
Harvard; J H, a minor by and through his parent and natural
guardian Valentine Robinson; ANGEL MEDDLER; JUAN ESPINOSA;
JEROME BURGESS, a.k.a. Sham'la God Allah; JAMES W. KENDRICK, JR.,
on behalf of themselves and all others similarly situated; and
JOHNNY HILL, are represented by:
Shalini Goel Agarwal, Esq.
Lisa S. Graybill, Esq.
Kelly Jean Knapp, Esq.
Sumayya Saleh, Esq.
SOUTHERN POVERTY LAW CENTER
PO Box 10788
Tallahassee, FL 32302
Telephone: 850 521-3024
- and -
Andrea Hope Costello, Esq.
Christopher Michael Jones, Esq.
FLORIDA LEGAL SERVICES
14260 W Newberry Rd No. 412
Newberry, FL 32669
Telephone: 407-801-0332
- and -
Laura Anne Ferro, Esq.
Marcel Andrew Lilavois, Jr., Esq.
Aimee Cristen Lim, Esq.
Jennifer Morrissey Painter, Esq.
Sam Thypin-Bermeo, Esq.
Dante Pasquale Trevisani, Esq.
FLORIDA JUSTICE INSTITUTE
3750 Miami Tower
100 SE 2nd St.
Miami, FL 33131
Telephone: 305-342-6918
The Defendants-Appellants SECRETARY, FLORIDA DEPARTMENT OF
CORRECTIONS; and FLORIDA DEPARTMENT OF CORRECTIONS, An agency of
the State of Florida, are represented by:
Samantha C. Duke, Esq.
Daniel Jay Gerber, Esq.
Nicole Sieb Smith, Esq.
RUMBERGER KIRK & CALDWELL, PA
300 S Orange Ave., Ste. 1400
P.O. Box 1873
Orlando, FL 32801
Telephone: 407 872-7300
FLOWERS TODAY: Paguada Sues Over Blind-Inaccessible Web Site
------------------------------------------------------------
JOSUE PAGUADA, on behalf of himself and all others similarly
situated v. FLOWERS TODAY, INC., Case No. 1:20-cv-08263-VEC
(S.D.N.Y., Oct. 5, 2020), is brought against the Defendant for its
alleged violation of the Americans with Disabilities Act.
The Plaintiff is a blind, visually-impaired handicapped member of a
protected class of individuals under the ADA.
According to the complaint, the Plaintiff cannot use a computer
without the assistance of screen-reading software. During his
visits to the Defendant's website, https://www.bloomstoday.com,
most recently in September 2020, to browse and potentially make a
purchase, he encountered multiple access barriers, which denied him
a user experience similar to that of a sighted individual. The
Defendant's website allegedly failed to comply with the WCAG 2.1
Guidelines, thereby lacking a variety of features and
accommodations, which effectively barred the Plaintiff from being
able to enjoy the privileges and benefits of the Defendant's public
accommodation.
Flowers Today, Inc., is a flower delivery company that owns and
operates the Web site.[BN]
The Plaintiff is represented by:
Mars Khaimov, Esq.
MARS KHAIMOV LAW, PLLC
10826 64th Ave., Second Floor
Forest Hills, NY 11375
Tel: (929) 324-0717
E-mail: marskhaimovlaw@gmail.com
FOX KOHLER: Court Rules on Arbitration Motions in Frederick Suit
----------------------------------------------------------------
In the case, CAREN FREDERICK, on behalf of herself and all other
class members similarly situated Plaintiff, v. LAW OFFICE OF FOX,
KOHLER & ASSOCIATES, P.L.L.C., L.L.C., f/k/a/ National Legal
Center, P.L.L.C.; ARTHUR M. KOHLER; ROSANNA FOX; COMERICA BANK;
GLOBAL CLIENT SOLUTIONS, L.L.C.; John Doe(s) 1-100, said name of
John Doe(s) being fictitious, Defendants, Case No. 1:19-15887 (NLH)
(KMW) (D. N.J.), Judge Noel L. Hillman of the U.S. District Court
for the District of New Jersey:
(i) granted Comerica Bank and Global Client Solutions' motion
to compel arbitration; and
(ii) denied the FKA Defendants' motion to compel arbitration.
Plaintiff Frederick filed an eight-count complaint against the
Defendants in the Superior Court of Burlington County, New Jersey
on June 13, 2019, seeking class certification and damages. Her
alleged damages include accumulation of interest and penalty
charges on the monies enrolled in the debt program, emotional
distress, pain and suffering, attorneys' fees, out of pocket costs,
court costs and litigation expenses, degradation of her credit
score and rating, as well as compensatory, punitive, and treble
damages. Defendants Law Office of Fox, Kohler & Associates
P.L.L.C. ("FKA"), Arthur M. Kohler, and Rosanna Fox ("FKA
Defendants") removed the action to the District of New Jersey on
July 26, 2019 with consent from all the other Defendants.
Caren Frederick is a resident of New Jersey. In June 2013, she
entered into what is described as a debt settlement agreement
program with National Legal Center, which currently operates as
FKA. FKA is a New Hampshire entity with its principal place of
business in New Hampshire. Defendants Kohler and Fox are members
of FKA.
Frederick met with Michael Nobile, a representative of National
Legal Center, in June 2013. Around the same time, on June 12,
2013, Frederick signed a Professional Legal Services Agreement
("PLSA") with FKA. The PLSA mentioned an attorney named Garrett
Elias, whose name and New Jersey Bar number were provided in the
upper right-hand corner of the agreement. According to Frederick,
she was unable to verify that Elias had an office or telephone
number in New Jersey at the time that the PLSA was in place.
Frederick claims she has never met with nor spoken to Garrett
Elias. She understood that if she was sued by her creditors, Elias
would represent her.
Section 32 of the PLSA contains a clause entitled "Dispute
Resolution: Arbitration: Choice of Law." Frederick does not recall
being provided with a signed copy of the PLSA, and claims to not
have one in her possession.
Also on June 12, 2013, Frederick signed a Dedicated Account
Agreement & Application ("DAAA") with Globa, an Oklahoma limited
liability company. Global is wholly owned by Global Holdings
L.L.C. Though Frederick signed the PLSA and the DAAA at the same
time, these are separate agreements with separate entities. The
DAAA is a three-page document that contains a section entitled
"Arbitration of Dispute - Important Notice Affecting Your Rights"
on the second page.
Frederick remembers signing these agreements but does not remember
reading them and did not consult with an attorney prior to signing.
According to Frederick, neither Mr. Nobile nor anyone else
explained to her what the documents were, what they contained, what
the paragraphs of the documents meant, what arbitration meant, or
that an arbitration clause was to be found in each document. She
further claims that no one explained the arbitration process to her
or how much it might cost, or gave her a copy of the AAA rules or
explain them.
Under the debt settlement program, Frederick agreed to the
withdrawal of funds from her New Jersey bank account to be held in
escrow. According to Frederick, these funds were not held by FKA,
but rather by Global, pursuant to the agreement between Global and
Frederick.
After Frederick signed the agreement with Global, Global opened an
account for Frederick with Comerica Bank. Comerica Bank is a Texas
banking association with its principal place of business in Dallas,
Texas. Global sent Frederick a letter on June 17, 2013, entitled
"Welcome to Global Client Solutions, L.L.C." The letter provided
Frederick with information about her "dedicated account," her
"dedicated account provider," and how to access and track the
account.
According to Frederick, she ended her agreement with Global in
April 2017. As a result, Frederick alleges that Global withdrew
$29,705.28 from her checking account, but only dispersed $14,385.30
to her creditors. Frederick alleges that the difference was paid
to cover attorneys' fees, transaction fees, service fees, and bank
and another fees. She contends that these fees were illegal.
On Aug. 16, 2019, the FKA Defendants and Global Solutions and
Comerica Bank made two separate motions to compel arbitration.
Frederick filed briefs in opposition on Sept. 20, 2019.
Frederick and Global both acknowledge the existence of the DAAA.
However, they disagree on a number of aspects of the DAAA and its
purported arbitration clause.
To begin, the parties disagree about which state's laws should
apply in the first step of the Court's analysis. Judge Hillman
finds that the parties agree that there is no conflict between
Oklahoma law and New Jersey law. The Judge finds that New Jersey
would apply its own law to the case in the interest of uniformity
and predictability across other disputes involving Global. Because
the New Jersey District Court sits in diversity, the Judge will
apply New Jersey law.
Next, the parties dispute whether the DAAA contains a valid
delegation clause. A valid delegation clause gives the arbitrator
the primary power to decide the arbitrability of a specific claim.
The Judge agrees with Global that the delegation clause more
closely resembles the language used in Rent-A-Ctr., West, Inc. v.
Jackson. Global's delegation clause mentions both arbitrability
and offers a venue for deciding the issue. Furthermore, it also
expressly covers statutory claims and offers at least a partial
definition of the term "binding arbitration." Though Global's
delegation clause may lack some of the clarity present in the
Rent-A-Center delegation clause, the Judge finds that it does
communicate that an arbitrator will decide whether the parties
agreed to arbitrate legal claims. The Judge finds therefore that
the DAAA contains a valid delegation clause. Having found that the
DAAA contains a valid delegation clause, the Judge will not assess
any threshold questions of arbitrability such as validity and
scope.
As with the DAAA, the parties to the PLSA disagree about which law
applies to this agreement. FKA argues that the PLSA specifically
states that Delaware law governs the agreement. Frederick contends
that New Jersey law applies to the agreement because of the
ambiguous wording in the PLSA.
The Judge finds that the arbitration clause is invalid because it
fails to meet the standards described in In Re Remicade, 938 F.3d
515, 525 (3d Cir. 2019). The arbitration cause does not identify
the general substantive area that the arbitration clause covers.
It merely mentions any dispute that cannot be resolved between the
parties after 180 days. The arbitration clause does not reference
the types of claims waived by the provision. Unlike the DAAA, the
PLSA arbitration clause makes no mention of any statutory rights
Frederick waived by signing the PLSA. The arbitration clause does
state that arbitration replaces the right to go to court before a
judge or jury which may limit each party's rights to discovery and
appeal, but this is not adequate to rescue an otherwise invalid
arbitration clause.
For the reasons noted, Judge Hillman (i) granted Global and
Comerica's motion to compel arbitration, and (ii) denied FKA's
motion to compel arbitration.
A full-text copy of the District Court's June 30, 2020 Opinion is
available at https://bit.ly/3drOn0e from Leagle.com.
JOSEPH M. PINTO, POLINO & PINTO, P.C., MOORESTOWN, NJ, Attorney for
Plaintiff.
ERIK BERGLUND, GREENSPOON MARDER LLP, ISELIN, NJ, Attorney for
Defendants Global Client Solutions, L.L.C. and Comerica Bank.
VINCENT E. GENTILE -- vincent.gentile@dbr.com -- DRINKER BIDDLE &
REATH LP, PRINCETON, NJ, Attorney for Defendants Law Offices of
Fox, Kohler & Associates, P.L.L.C., Arthur M. Kohler, and Rosanna
Fox.
FQSR LLC: Bid for Conditional Class Cert. Granted in Part
---------------------------------------------------------
In the class action lawsuit captioned as LATOYA LANCASTER, VICTOR
L. BROWN, MARTIN JENNINGS and SHAMEKICA PROCTOR, Individually and
on Behalfof Others Similarly Situated, v. FQSR, LLC d/b/a KBP
Foods, Case No. 8:19-cv-02632-TDC (D. Md.), the Hon. Judge Theodore
D. Chuang entered an order granting in part and denying in part the
Plaintiffs' Motion for Conditional Class Certification.
The Court conditionally certifies a collective action consisting
of:
"all individuals who have worked within the last three years
at one of FQSR's Kentucky Fried Chicken or Taco Bell
restaurant franchises located in the area of Maryland
overseen by Tom Chalkley, consisting of the restaurants in
Prince Frederick, Kettering, Upper MarlborOj La Plata,
Waldorf, and Bryans Road, Maryland, and were classified as
non-exempt from the overtime pay mandates, except those who
worked only as either "Co-Managers" or "Shift Managers"
during the entire period.
The Motion is denied without prejudice as to the remaining FQSR
restaurants in Maryland.
FQSR, doing business as KBP Foods, owns, operates, and franchises
fast food restaurants.
A copy of the Court's Order granting in part the motion for
conditional class certification is available from PacerMonitor.com
at https://bit.ly/2HdDpPH at no extra charge.[CC]
FRED HAAS: Denial of Arbitration Bid in Mendoza TCPA Suit Reversed
------------------------------------------------------------------
In the case, Manuel Mendoza, individually and on behalf of all
others similarly situated, Plaintiff-Appellee, v. Fred Haas Motors,
Limited, a Texas Corporation, Defendant-Appellant, Case No.
20-20123 (5th Cir.), the U.S. Court of Appeals for the Fifth
Circuit reversed the district court's denial of Fred Haas' motion
to compel arbitration.
The appeal arises from a class action suit alleging violations of
the Telephone Consumer Protection Act ("TCPA"). In May 2015,
Mendoza purchased a car from Fred Haas Toyota World in Spring,
Texas. He signed two pertinent documents while finalizing the
sale: an "Arbitration Agreement" and a "Personal Information
Notice.
Beginning in the spring of 2019, Mendoza alleges that Fred Haas
sent four prerecorded voicemail messages to his phone. Claiming
that the calls were unsolicited marketing messages, Mendoza filed a
class action suit in the Southern District of Texas asserting
violations of the TCPA.
Fred Haas moved to compel arbitration based on the Arbitration
Agreement, arguing that the Personal Information Notice was prior
written consent and any dispute over the meaning of the document is
subject to arbitration. Furthermore, Fred Haas contends that the
agreement delegates questions of arbitrability to the arbitrator.
The district court denied the motion in an unelaborated order and
Fred Haas filed the interlocutory appeal pursuant to 9 U.S.C.
Section 16(a).
The Fifth Circuit holds that it is undisputed that both Fred Haas
and Mendoza are parties to the Arbitration Agreement and the
Agreement states "all claims will be settled by binding arbitration
conducted pursuant to the provisions of 9 U.S.C. Section 1 et seq.
and according to the Commercial Rules of the American Arbitration
Association." This language follows a similar structure of other
agreements found to incorporate the AAA Rules.
Mendoza's arguments to the contrary are unconvincing, rules the the
Fifth Circuit. First, Mendoza misstates the Circuit's rule on who
decides the question of arbitrability. Generally, the question of
arbitrability is a judicial determination for the court, unless the
parties clearly and unmistakably provide otherwise. As noted, the
parties did, clearly and unmistakably, provide otherwise, thus
removing the decision from the court.
Second, Mendoza argues that Fred Haas limited the delegation to
claims regarding the sale, lease, financing of the vehicle,
performance, or condition of the vehicle. He raises the
"carve-out" argument in the first instance on appeal. Mendoza
waived the argument by failing to present it to the district court.
Nonetheless, it fails, according to the Fifth Circuit. Mendoza
argues that including terms and meanings of any of the documents in
the second sentence of the agreement excludes it from the first.
The reading is contrary to the language used by the parties. The
second sentence opens "Without limiting the generality of the
foregoing," indicating the parties' intention that certain
enumerated claims be included in the first sentence, not exempted
from arbitration.
In granting Fred Haas's motion to compel arbitration, the Fifth
Circuit expresses no views on the scope of the arbitration
agreement or the merits of the underlying dispute. It is simply
respecting the parties' decision to delegate the threshold question
of arbitrability to the arbitrator. The order of the district
court is reversed and the matter is remanded with direction for the
district court to refer the dispute to arbitration.
A full-text copy of the Court's Sept. 1, 2020 Opinion is available
at https://tinyurl.com/yxnlwd96 from Leagle.com.
FYF-EVE'S LLC: Web Site Inaccessible to Blind Users, Paguada Says
-----------------------------------------------------------------
JOSUE PAGUADA v. FYF-EVE'S LLC, Case No. 1:20-cv-08268 (S.D.N.Y.,
Oct. 5, 2020), is brought on behalf of the Plaintiff and all other
similarly situated blind and visually-impaired people for the
Defendant's alleged violation of the Americans with Disabilities
Act.
The Plaintiff is blind and visually-impaired handicapped person and
cannot use a computer without the assistance of screen-reading
software. He alleges that the Defendant failed to design,
construct, maintain, and operate its website,
https://brookandyork.com/, to be fully accessible to and
independently usable by him and other blind or visually-impaired
people. During his visits to the Defendant's website to browse and
potentially make a purchase, the Plaintiff was denied a user
experience similar to that of a sighted individual.
As a result of the Defendant's noncompliance with the WCAG2.1, its
website lacks a variety of features and accommodations, which
effectively barred the Plaintiff from being able to enjoy the
privileges and benefits of the Defendant's public accommodation,
according to the complaint. Because of its failure to provide the
Plaintiff and other visually-impaired consumers with equal access
to the website, the Defendant has allegedly engaged in acts of
intentional discrimination.
FYF-EVE'S LLC is a jewelry company that owns and operates the Web
site.[BN]
The Plaintiff is represented by:
Mars Khaimov, Esq.
MARS KHAIMOV LAW, PLLC
10826 64th Ave., Second Floor
Forest Hills, NY 11375
Tel: (929) 324-0717
E-mail: marskhaimovlaw@gmail.com
GARRISON PROPERTY: Coleman Appeals N.D. Ill. Order to 7th Circuit
-----------------------------------------------------------------
Plaintiff MALAIKA COLEMAN filed an appeal from the District Court's
Order entered in the lawsuit styled Malaika Coleman v. Garrison
Property and Casualty, et al., Case No. 1:19-cv-01745, in the U.S.
District Court for the Northern District of Illinois.
On March 18, 2020, the Hon. Judge Virginia M. Kendall entered an
order denying Coleman's Motion to Alter Judgment.
Judge Kendall said, "The Defendants moved to dismiss, which this
Court granted on January 30, 2020, agreeing that the provision the
Plaintiff cited about 'actual cash value' is not the relevant
provision because it is the limit of their liability, not the
amount Defendants promised to pay. The Court further held that in
any event the policy does not require the Defendants to pay sales
tax and title transfer fees. The Plaintiff timely filed her Motion
to Alter Judgment on February 6, 2020, claiming new facts and that
the Court made manifest errors of fact in its judgment."
The appellate case is captioned as MALAIKA COLEMAN, individually
and on behalf of others similarly situated, Plaintiff-Appellant v.
GARRISON PROPERTY AND CASUALTY INSURANCE COMPANY; and UNITED
SERVICE AUTOMOBILE ASSOCIATION, Defendants-Appellees, Case No.
20-1480, in the United States Court of Appeals for the Seventh
Circuit.
The Plaintiff Coleman brought her action individually and on behalf
of two classes against her car insurance provider. She alleged that
she was harmed because her insurer did not include the costs of
sales tax and title transfer fees in the reimbursement, which she
alleged was a breach of her insurance agreement.
Garrison Property & Casualty operates as an insurance company. The
Company provides property and casualty insurance services. The
United Services Automobile Association is a San Antonio-based
Fortune 500 diversified financial services group of companies
including a Texas Department of Insurance-regulated reciprocal
inter-insurance exchange and subsidiaries.[BN]
The Plaintiff-Appellant MALAIKA COLEMAN, individually and on behalf
of others similarly situated, is represented by:
Daniel Ferri, Esq.
DICELLO LEVITT GUTZLER LLC
Ten N. Dearborn Street
Chicago, IL 60602
Telephone: 312 214-7900
The Defendants-Appellees GARRISON PROPERTY AND CASUALTY INSURANCE
COMPANY; and UNITED SERVICE AUTOMOBILE ASSOCIATION, are represented
by:
Jay Williams, Esq.
SCHIFF HARDIN LLP
233 S. Wacker Drive
Chicago, IL 60606-0000
Telephone: 312 258-5629
GOL LINHAS: Bragar Eagel Reminds of November 10 Deadline
--------------------------------------------------------
Bragar Eagel & Squire, P.C., a nationally recognized shareholder
rights law firm, on Sept. 14 disclosed that a class action lawsuit
has been filed in the United States District Court for the Eastern
District of New York on behalf of investors that purchased Gol
Linhas Aereas Inteligentes S.A. (NYSE: GOL) securities between
March 14, 2019 and July 22, 2020 (the "Class Period"). Investors
have until November 10, 2020 to apply to the Court to be appointed
as lead plaintiff in the lawsuit.
In mid-June 2020, Gol's auditor, KPMG, raised significant concerns
about Gol during the accounting firm's first annual audit of the
Company after being hired in 2019, stating that it had an "adverse
opinion" on the strength of Gol's internal controls regarding the
preparation of financial statements, adding that there was
"substantial doubt" about the airline's ability to exist a year
from now." KPMG's adverse opinion prompted Gol to carry out a
review of its financial reporting procedures.
On July 23, 2020, GOL announced that it had dismissed KPMG as the
Company's registered auditing firm.
On this news, shares of GOL fell $.055 per share, or 7%, to close
at $7.25 per share on July 23, 2020
The complaint, filed on September 11, 2020, alleges that throughout
the Class Period defendants made false and/or misleading
statements and/or failed to disclose that: (1) GOL had material
weaknesses in its internal controls; (2) there was substantial
doubt as to the Company's ability to continue to exist as a going
concern because of negative net working capital and net capital
deficiency; and (3) as a result, defendants' statements about its
business, operations, and prospects, were materially false and
misleading and/or lacked a reasonable basis at all relevant times.
When the true details entered the market, the lawsuit claims that
investors suffered damages.
If you purchased Gol securities during the Class Period and
suffered a loss, have information, would like to learn more about
these claims, or have any questions concerning this announcement or
your rights or interests with respect to these matters, please
contact Melissa Fortunato, Marion Passmore, or Brandon Walker by
email at investigations@bespc.com, telephone at (212) 355-4648, or
by filling out this contact form. There is no cost or obligation
to you.
About Bragar Eagel & Squire, P.C.
Bragar Eagel & Squire, P.C. is a nationally recognized law firm
with offices in New York and California. The firm represents
individual and institutional investors in commercial, securities,
derivative, and other complex litigation in state and federal
courts across the country. For more information about the firm,
please visit www.bespc.com. Attorney advertising. Prior results
do not guarantee similar outcomes.
Contact Information:
Bragar Eagel & Squire, P.C.
Brandon Walker, Esq.
Melissa Fortunato, Esq.
Marion Passmore, Esq.
(212) 355-4648
investigations@bespc.com
www.bespc.com [GN]
GREATAUPAIR LLC: Court Issues Summons in Padron Employment Suit
---------------------------------------------------------------
In the putative class action lawsuit styled as ALEJANDRO PADRON,
individually and on behalf of all others similarly situated v.
GREATAUPAIR, LLC, Case No. CGC-20-587057, the Superior Court of the
State of California for the County of San Francisco issued a
summons to the Plaintiff on October 9, 2020.
The case arises from the Defendant's alleged violations of the
Private Attorneys General Act, the Industrial Welfare Commission
Minimum Wage Order, and Industrial Welfare Commission Wage Order,
including failure to pay minimum wage, failure to provide meal
periods, failure to timely pay all wages owed, failure to pay wages
upon termination, illegal wage deductions or illegal credits
against minimum wage, failure to maintain accurate payroll records,
and failure to provide lawful wage statements.
The Plaintiff has worked for the Defendant as an in-home childcare
worker in California on J-1 au pair visa since October 2019.
GreatAuPair, LLC, is an online job-matching service that helps
people find childcare, senior care and other services. The
Company's principal place of business is located in Texas.[BN]
The Plaintiff is represented by:
Matthew C. Helland, Esq.
NICHOLS KASTER, LLP
235 Montgomery Street, Suite 810
San Francisco, CA 94104
Telephone: (415) 277-7235
Facsimile: (415) 277-7238
E-mail: helland@nka.com
- and –
Peter Rukin, Esq.
RUKIN HYLAND & RIGGIN LLP
1939 Harrison Street, Suite 290
Oakland, CA 94612
Telephone: (415) 421-1800
Facsimile: (415) 421-1700
E-mail: prukin@rukinhyland.com
- and –
Alexander Hood, Esq.
TOWARDS JUSTICE
1410 High Street, Suite 300
Denver, CO 80218
Telephone: (720) 239-2606
E-mail: alex@towardsjustice.org
HARMONY HEALTHCARE: Conditional Cert. of Collective Action Sought
-----------------------------------------------------------------
In the class action lawsuit captioned as DAMIAN GARCIA, CHRISTOPHER
ANGELO, and NATHAN BEAUCHAMP, individually and on behalf of all
others similarly situated, v. HARMONY HEALTHCARE, LLC, and
CHRISTIAN HG BROWN, Case No. 8:20-cv-01065-WFJ-AAS (M.D. Fla.), the
Plaintiffs ask the Court for an order:
1. granting conditional certification of collective action of
and permitting, under Court supervision, notice to:
"all Account Executives (AEs) or other positions with
similar job titles or job descriptions who work or have
worked for the Defendant and under the supervision of the
Defendant Christian HG Brown at any time within the three
years prior to the instant action's filing date"; and
2. granting equitable tolling of the limitations period for
all putative collective plaintiffs who have not yet joined
this action.
The Plaintiffs contend that Harmony misclassified "Account
Executive" employees or "AEs" as exempt employees who were not
eligible for overtime under the Fair Labor Standards Act. During
the Plaintiffs' employment with the Defendants as AEs Defendants
required them to routinely work over 40 hours a week, but failed to
pay them and other similarly situated AEs overtime compensation
because of the misclassification.
The Plaintiffs, along with others similarly situated, were employed
as AEs in the Defendants' office in Tampa, Florida. AEs worked as
inside sales agents. Harmony continues to employee multiple Account
Executives in its Tampa, Florida office.
Harmony provides services including health information management,
healthcare revenue cycle management, staffing, and consulting to
hospital and healthcare provider clients
nationwide.
A copy of the Court's Order on Plaintiffs' motion for conditional
certification is available from PacerMonitor.com at
https://bit.ly/32KeOKR at no extra charge.[CC]
The Plaintiffs are represented by:
Kevin D. Zwetsch, Esq.
Dorrella L. Gallaway, Esq.
CANTRELL ZWETSCH, P.A.
401 East Jackson Street, Suite 2340
Tampa, FL 33602
Telephone: 813 867 0115
Facsimile: 813 867 0116
E-mail: kzwetsch@czeblaw.com
smiller@czeblaw.com
dgallaway@czeblaw.com
lcaulder@czeblaw.com
The Defendants are represented by:
Nicholas S. Andrews, Esq.
Todd Aidman, Esq.
Denice K. Luttrell, Esq.
FORD & HARRISON LLP
101 E Kennedy Blvd Ste 900
Tampa, FL 33602-5133
Telephone: 813 261-7800
Facsimile: 813 261-7899
E-mail: nandrews@fordharrison.com
TAidman@Fordharrison.com
DLuttrell@fordharrison.com
HOME DELIVERY: Jones Sues Over Improper Pay Practices Under FLSA
----------------------------------------------------------------
JOLISA JONES, on behalf of herself and all others similarly
situated v. HOME DELIVERY LINK, INC., Case No.
8:20-cv-02341-TPB-JSS (M.D. Fla., Oct. 5, 2020), is brought against
the Defendant for its alleged improper pay practices in violation
of the Fair Labor Standards Act and the Florida Minimum Wage Act.
The Plaintiff, who was employed by the Defendant as a delivery
driver from February 2018 to April 2020, alleges that the Defendant
required her and other similarly situated employees to work for the
Defendant as an independent contractor, but they were not allowed
to accept any work from any other entity. The Plaintiff asserts
that the Defendant did not pay them at least the applicable State
of Florida minimum wage for all of the hours that they worked.
The Plaintiff also alleges that that she was charged by the
Defendant for multiple fees for which no explanation of the fees
given and withheld at least $12,000 from her as part of an alleged
performance or rental bond. She adds that the Defendant failed to
track her hours of work beyond those hours tracked by the U.S.
Department of Transportation.
Home Delivery Link, Inc., operates a freight transportation
company.[BN]
The Plaintiff is represented by:
Brandon J. Hill, Esq.
Amanda E. Heystek, Esq.
WENZEL FENTON CABASSA, P.A.
1110 N. Florida Ave., Suite 300
Tampa, FL 33602
Tel: 813-379-2560
Fax: 813-229-8712
E-mail: bhill@wfclaw.com
aheystek@wfclaw.com
gnichols@wfclaw.com
HUNTER WARFIELD: Faces Murray FDCPA Class Suit in M.D. Florida
--------------------------------------------------------------
A class action lawsuit has been filed against Hunter Warfield,
Inc., et al. The case is styled as Karmiec Murray, individually and
on behalf of all others similarly situated v. Hunter Warfield,
Inc., John Does 1-25, Case No. 8:20-cv-02385 (M.D. Fla., Oct. 12,
2020).
The lawsuit is brought over alleged violation of the Fair Debt
Collection Practices Act.
Hunter Warfield provides revenue recovery and risk mitigating
services.[BN]
The Plaintiff is represented by:
Justin E. Zeig, Esq.
ZEIG LAW FIRM, LLC
3475 Sheridan Street, Suite 310
Hollywood, FL 33024
Phone and Fax: (754) 217-3084
Email: justin@zeiglawfirm.com
HYDRO-STAT INC: Carter Sues Over Improperly Paid Overtime Wages
---------------------------------------------------------------
KEITH CARTER v. HYDRO-STAT INC., a Florida corporation, and DALLAS
NICKELS, individually, Case No. 0:20-cv-62016-RAR (S.D. Fla., Oct.
5, 2020), is brought on behalf of the Plaintiff and all those
similarly situated for the Defendants' alleged violation of the
Fair Labor Standards Act.
The Plaintiff, who was hired by the Defendants approximately 26
years ago up to the present as a Tank Technician/Hydro Tester,
contends that he and other similarly situated employees, who work
overtime hours, were not properly compensated by the Defendants at
one and one-half times their regular rate of pay for all hours they
worked over 40 within a workweek.
Hydro-Stat Inc. offers a complete package of commercial, industrial
and residential Fire Extinguisher Service in Broward, Florida.[BN]
The Plaintiff is represented by:
Brian Militzok, Esq.
MILITZOK LAW, P.A.
Wells Fargo Building
4600 Sheridan Street, Suite 402
Hollywood, FL 33021
Tel: (954) 780-8228
Fax: (954) 719-4016
E-mail: bjm@militzoklaw.com
HYDROW INC: Paguada Sues in S.D. New York Alleging ADA Violation
----------------------------------------------------------------
A class action lawsuit has been filed against Hydrow, Inc. The case
is styled as Dilenia Paguada, on behalf of herself and all others
similarly situated v. Hydrow, Inc., Case No. 1:20-cv-08484
(S.D.N.Y., Oct. 12, 2020).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Hydrow, Inc., provides connected indoor rowing machine. The Company
offers a connected indoor rowing machine which daily creates live
content broadcast straight from the cradle of rowing.[BN]
The Plaintiff is represented by:
Mars Khaimov, Esq.
10826 64th Avenue, 2nd Floor
Forest Hills, NY 11375
Phone: (917) 915-7415
Email: marskhaimovlaw@gmail.com
IDEXX DISTRIBUTION: Denial of Howard Suit Dismissal Bid Recommended
-------------------------------------------------------------------
In the case, EBONY HOWARD, et al., Plaintiffs v. IDEXX
DISTRIBUTION, INC., et al., Defendants, Case No. 2:20-cv-00079-JDL
(D. Me.), Magistrate Judge John H. Rich, III of the U.S. District
Court for the District of Maine recommended that (i) the
Plaintiffs' Motion for Leave to File Second Amended Collective and
Class Action Complaint be granted, (ii) the Defendants' Motion to
Partially Dismiss Plaintiffs' First Amended Collective and Class
Action Complaint be deemed moot, and (iii) the Defendants' request
to award sanctions be denied.
In lieu of filing an answer to the complaint, the Defendants in the
Fair Labor Standards Act ("FLSA") putative collective and class
action filed a motion to dismiss, arguing that the complaint failed
to state a claim pursuant to the FLSA because the then-sole named
Plaintiff, Howard, did not adequately allege that she worked more
than 40 hours in a given week or make clear which of the two named
IDEXX Defendants employed her or other putative collective/class
members. Howard, along with a second named Plaintiff, Monique
Tanaka, then filed a first amended complaint as of right. The
Court adopted Magistrate Judge Rich's recommendation that it deems
the First Motion to Dimiss moot in view of the filing of the FAC.
The Defendants filed a motion to partially dismiss the FAC, arguing
that, despite having been apprised of the deficiency, the
Plaintiffs still failed to allege that either one of them worked
more than 40 hours in a workweek, warranting the dismissal with
prejudice of their FLSA claim. The Plaintiffs oppose that motion
but, in an abundance of caution, move pursuant to Federal Rule of
Civil Procedure 15(a)(2) to file a second amended complaint
("SAC"). The Defendants filed Opposition to Plaintiffs' Motion for
Leave to File Plaintiffs' Second Amended Collective and Class
Action Complaint.
At oral argument on Aug. 25, 2020, the Defendants' counsel
clarified that his clients do not contend that the SAC fails to
state a claim or is otherwise futile. The Defendants, instead,
oppose the amendment on the basis of the Plaintiffs' asserted
"repeated" failure to allege that one or both of them worked more
than 40 hours in a workweek. The Plaintiffs dispute that the FAC
fails to state an FLSA claim.
Magistrate Judge Rich recommends that the Court grants the Motion
to Amend, deems the Second MTD moot, and declines to award
sanctions. Assuming, arguendo, that the FAC fails to state an FLSA
claim for the reasons articulated by the Defendants, he holds that
the Plaintiffs have not "repeatedly" failed to cure a pleading
deficiency by previously-allowed amendments. That the case remains
in its early stages, during which the liberal default rule applies,
and that the defendants concede the SAC is not futile, counsel
strongly in favor of the allowance of the amendment.
Finally, neither the delay in the commencement of discovery caused
by the instant motion practice nor the cost incurred in filing the
Second MTD warrants the denial of the Motion to Amend or an award
of sanctions, Magistrate Judge Rich held. The Defendants do not
contend that the Plaintiffs were dilatory or acted in bad faith in
engaging in the instant motion practice, and the parties sharply
dispute whether the Defendants' asserted difficulty in obtaining
Plaintiff Howard's cell phone information is attributable to any
added delay in the commencement of discovery, he said.
A full-text copy of the Court's Sept. 1, 2020 Recommended Decision
& Order is available at https://tinyurl.com/y6zktjue from
Leagle.com.
INDIANA: Class & Subclass in ACLU of Indiana Class Suit Certified
-----------------------------------------------------------------
In the case, INDIANA CIVIL LIBERTIES UNION FOUNDATION, INC.,
INDIANA CIVIL LIBERTIES UNION, INC., and JANE HENEGAR, KATHRYN
BLAIR, and NEIL HUDELSON, on their own behalf and on behalf of a
class and subclass of those similarly situated, Plaintiffs, v.
SUPERINTENDENT, INDIANA STATE POLICE, MAYOR OF INDIANAPOLIS, and
MARION COUNTY PROSECUTOR, in their official capacities, Defendants,
Case No. 1:20-cv-01094-JMS-TAB (S.D. Ind.), Judge Jane
Magnus-Stinson of the U.S. District Court for the Southern District
of Indiana, Indianapolis Division, granted the Plaintiffs' Motion
for Class Certification.
Plaintiffs the Indiana Civil Liberties Union Foundation, Inc. and
the Indiana Civil Liberties Union, Inc. ("ACLU of Indiana"), and
three of their employees initiated the action against Defendants
the Superintendent of the Indiana State Police, the Mayor of
Indianapolis, and the Marion County Prosecutor, to enjoin
enforcement of the pre-amendment and amended versions of Indiana
Code Section 35-45-17-2, a statute that prohibits certain
panhandling activities. The Plaintiffs allege that the statute is
a content-based prohibition on free speech that violates the First
Amendment.
The statute at issue in the case, Indiana Code Section 35-45-17-2,
criminalizes certain panhandling as a Class C misdemeanor. With
amendments set to take effect on July 1, 2020, and based on their
belief that certain activities in which they plan to engage on
Constitution Day1 violate both the pre-amendment and amended
versions of the statute, the Plaintiffs seek to enjoin enforcement
of both versions of the statute.
The Plaintiffs highlight both the pre-amendment and amended
versions' prohibition on panhandling with at least one other
individual, Ind. Code Section 35-45-17-2(8) and Ind. Code Section
35-45-17-2(7) (amended eff. July 1, 2020), and the amended
version's prohibition on panhandling within 50 feet of an automated
teller machine, the entrance or exit to a bank, business, or
restaurant, or the location where a financial transaction occurs,
or within 50 feet of a public monument, Ind. Code Section
35-45-17-2(1)(E), (F) (amended eff. July 1, 2020).
In their Motion for Class Certification, Plaintiffs Henegar, the
Executive Director of the ACLU of Indiana, Blair, the Director of
Advocacy and Public Policy for the ACLU of Indiana, and Hudelson,
the Director of Philanthropy for the ACLU of Indiana, seek to
represent a class and subclass of those similarly situated.
The Plaintiffs define their proposed class as: All persons in the
State of Indiana who engage, or will engage, in panhandling, as
defined by Indiana Code Section 35-45-17-1. They defined their
proposed subclass as: All persons in the City of Indianapolis who
engage, or will engage, in panhandling, as defined by Indiana Code
Section 35-45-17-1.
Judge Magnus-Stinson finds that the Plaintiffs' class and subclass
definitions make membership dependent on whether individuals engage
in panhandling as defined in Section 35-45-17-1. She finds that
these definitions are sufficient to establish an identifiable class
and subclass.
As to the Rule 23(a) Requirements, the Plaintiffs argue that they
meet all four prerequisites of Rule 23(a), and the Defendants argue
that the Plaintiffs meet none. As to the Rule 23(b) Requirement,
the Plaintiffs argue that the class and subclass satisfy Rule
23(b)(2) because an allegedly unconstitutional statute has imposed
uniform conditions on the class and subclass. The Defendants do
not address Rule 23(b)(2) in their response brief. The Judge finds
that the Plaintiffs have satisfied the requirements of Rule 23(a)
and Rule 23(b)(2).
For the foregoing reasons, Judge Magnus-Stinson granted the
Plaintiffs' Motion for Class Certification. The Judge certified a
class of: All persons in the State of Indiana who engage, or will
engage, in panhandling, as defined by Indiana Code Section
35-45-17-1. She also certified a subclass of: All persons in the
City of Indianapolis who engage, or will engage, in panhandling, as
defined by Indiana Code Section 35-45-17-1.
Additionally, the Judge designated (i) Jane Henegar, Kathryn Blair,
and Neil Hudelson as the representatives for the class and subclass
pursuant to Fed. R. Civ. P. 23; and (ii) Kenneth Falk, Gavin Rose,
and Stevie Pactor as the class counsel pursuant to Fed. R. Civ. P.
23(g).
A full-text copy of the District Court's June 30, 2020 Order is
available at https://bit.ly/3nNvLfM from Leagle.com.
JEFFRY KNIGHT: Yan Seeks Conditional Collective Status
------------------------------------------------------
In the class action lawsuit captioned as WAIMING YAN, individually,
and on behalf of others similarly situated, v. JEFFRY KNIGHT, INC.
d/b/a KNIGHT ENTERPRISES, Case No. 8:20-cv-00410-MSS-TGW (M.D.
Fla.), the Plaintiff asks the Court for an order:
1. conditionally certifying this case as a collective action
for the putative class of similarly situated;
2. requiring the Defendant to produce the names, addresses,
telephone numbers, and email addresses of each putative
class member; and
3. authorizing the Plaintiff to send notice of this action
to:
"all current and former Cable Installation Techs that
worked for Defendant within the preceding three years."
Mr. Yan filed this collective action complaint against the
Defendant alleging that the Defendant willfully misclassified its
workforce of Cable Installers or Cable Installation Technicians as
Independent Contractors, willfully failed to pay them overtime
compensation and willfully failed to properly track and record
their work hours in violation of the Fair Labor Standards Act.
The Plaintiff is joined by Cable Techs who worked in the Tampa Bay
area, North Carolina, and South Carolina and of whom ultimately
reported to the Defendant's corporate office in Clearwater,
Florida. Yan worked as an independent contractor for Defendant from
March 2015 to January 2020.
Knight Enterprises was founded in 1968. The Company's line of
business includes selling gasoline and lubricating oils.
A copy of the Plaintiff's motion for conditionally certifying case
as a collective action is available from PacerMonitor.com at
https://bit.ly/2FIzZEl at no extra charge.[CC]
Attorney for Plaintiff and on behalf of others similarly is:
Mitchell L. Feldman, Esq.
FELDMAN LEGAL GROUP
6940 W. Linebaugh Ave. No. 101
Tampa, FL 33625
Telephone: 813 639-9366
Facsimile: 813-639-9376
E-mail: mlf@feldmanlegal.us
lschindler@feldmanlegal.us
KREILKAMP TRUCKING: Bosley Seeks to Certify Drivers Class
---------------------------------------------------------
In the class action lawsuit captioned as SHAWN BOSLEY, on behalf of
himself and others similarly situated, v. KREILKAMP TRUCKING, INC.,
Case No. 2:20-cv-00549-JPS (E.D. Wisc.), the Plaintiff asks the
Court for an order:
a. conditionally certifying this case as a Fair Labor
Standards Act collective action under section 216(b)
against the Defendant on behalf of Plaintiff and others
similarly situated:
"all current and former truck drivers who worked for the
Defendant in the United States of America as drivers, who
worked during trips of 24-hours or more any time from
April 4, 2017 or thereafter";
b. directing that notice be sent by United States mail and
email to all present and former truck drivers of
Defendant, who worked during trips of 24-hours or more at
any time since April 4, 2017;
c. directing the parties to confer regarding the contents of
the notice, and jointly submit within 14 days a proposed
notice informing such present and former employees of the
pendency of this collective action and permitting them to
opt into the case by signing and submitting an opt-in and
consent form;
d. directing the Defendant to provide a roster of such
present and former employees that includes their full
names, their dates of employment, and their last known
home addresses and personal email addresses, and their
last telephone numbers within 14 days;
e. directing that the notice, in the form approved by the
Court, be sent to such present and former employees within
30 days using the home and email addresses listed in the
roster;
f. directing Defendant to provide a Declaration that the
produced roster fully complies with the Court's Order;
g. providing that duplicate copies of the notice may be sent
in the event new, updated, or corrected mailing addresses
or email addresses are found for one or more of such
present or former employees; and
h. permitting Counsel for the Plaintiff to contact via
telephone any putative class member whose notice is
returned as undeliverable.
The Defendant provides trucking services in the food supply chain.
A copy of the Plaintiff's motion for conditional certification is
available from PacerMonitor.com at https://bit.ly/2FOW9ov at no
extra charge.[CC]
The Plaintiff is represented by:
Christopher J. Lalak, Esq.
Jeffrey J. Moyle, Esq.
NILGES DRAHER LLC
614 West Superior Avenue, Suite 1148
Cleveland, OH 44113
Telephone: (216) 230-2955
E-mail: clalak@ohlaborlaw.com
jmoyle@ohlaborlaw.com
KURTZMAN CARSON: Consolidated Aetna Suit Dismissed with Prejudice
-----------------------------------------------------------------
In IN RE AETNA INC. LITIGATION, Case No. CV 19-04035-JFW (JEMx)
(C.D. Cal.), Judge John F. Walter of the U.S. District Court for
the Central District of California, Western Division, dismissed the
consolidated action with prejudice in its entirety, including all
claims for relief in Aetna's First Amended Complaint and KCC Class
Action Services, LLC's First Amended Complaint, with all parties to
bear their own costs.
Aetna and and KCC and Defendant Kurtzman have filed their Joint
Stipulation of Dismissal pursuant to the Parties' Joint Notice of
Settlement and Stipulation and the Court's subsequent order
entering that stipulation.
A full-text copy of the Court's Sept. 2, 2020 Order is available at
https://tinyurl.com/y36mc5l3 from Leagle.com.
KWIKCASH INC: Paguada Sues in S.D. New York Over Violation of ADA
-----------------------------------------------------------------
A class action lawsuit has been filed against KwikCash, Inc. The
case is styled as Josue Paguada, on behalf of himself and all
others similarly situated v. KwikCash, Inc., Case No.
1:20-cv-08476-LGS (S.D.N.Y., Oct. 12, 2020).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Kwikcash, Inc., is a company specialized in crediting to meet the
personal needs of individuals who have fallen into difficult life
circumstances.[BN]
The Plaintiff is represented by:
Mars Khaimov, Esq.
10826 64th Avenue, 2nd Floor
Forest Hills, NY 11375
Phone: (917) 915-7415
Email: marskhaimovlaw@gmail.com
LAFRIEDA MEATS: Faces Paguada ADA Class Suit in S.D. New York
-------------------------------------------------------------
A class action lawsuit has been filed against LaFrieda Meats, Inc.
The case is styled as Dilenia Paguada, on behalf of herself and all
others similarly situated v. LaFrieda Meats, Inc., Case No.
1:20-cv-08483 (S.D.N.Y., Oct. 12, 2020).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.[BN]
The Plaintiff is represented by:
Mars Khaimov, Esq.
10826 64th Avenue, 2nd Floor
Forest Hills, NY 11375
Phone: (917) 915-7415
Email: marskhaimovlaw@gmail.com
LEXISNEXIS RISK: Bid to Certify Class in "Gaston" Granted in Part
-----------------------------------------------------------------
In the class action lawsuit captioned as DELORIS GASTON AND LEONARD
GASTON, v. LEXISNEXIS RISK SOLUTIONS, INC. AND POLICEREPORTS.US,
LLC, Case No. 5:16-CV-00009-KDB-DCK (W.D.N.C.), the Hon. Judge
Kenneth D. Bell entered an order:
1. granting in part and denying in part Plaintiff's motion to
certify class;
2. appointing Plaintiffs' counsel, Larry S. McDevitt, David
M. Wilkerson, Eugene C. Covington, Jr. and Chris Cogdill
as class counsel for the certified class pursuant to Rule
23(g);
3. granting in part and denying in part the Plaintiffs'
motion for summary judgment;
4. enjoining the Defendants and their officers, agents,
servants, employees, and attorneys and those acting in
active concert with them from violating the the Driver's
Privacy Protection Act (DPPA);
5. denying the Defendants' motion for summary judgment;
6. denying as moot the Plaintiffs' motion for appointment of
Interim Co-Lead and Liaison counsel
7. denying as moot the Defendants' motion to stay a ruling on
the Plaintiffs' motion for summary judgment; and
8. directing case to 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.
With respect to class certification, the Court declines to certify
the nationwide, statewide and Rule 23(b)(1) and 23(b)(3) money
damages classes sought by the Plaintiffs, but certifies class under
Federal Rule of Civil Procedure 23(b)(2) to consider the
Plaintiffs' claim for injunctive relief under the Driver's Privacy
Protection Act (DPPA).
On the parties' cross motions for summary judgment, Judge Bell held
that -- based on the Court's finding that North Carolina accident
reports indicate that the address appearing in the report is the
same as on a driver's license are "motor vehicle records" under the
statute and the Defendants' admission that they disclosed the
reports without regard to whether the personal information in the
reports would be used for a purpose permitted by the DPPA (as well
as the undisputed evidence that at least some of those reports were
used for an impermissible purpose) -- the Plaintiffs are entitled
to summary judgment on their claim for injunctive relief to end the
Defendants' unlawful practices. However, there are genuinely
disputed material issues of fact regarding whether the Plaintiffs'
accident reports were disclosed for a purpose not permitted by the
DPPA.
The Plaintiffs Leonard and Delores Gaston are a married couple who
live in Charlotte, North Carolina. The Defendant LexisNexis is a
Georgia corporation that provides data and information to various
professionals and industries around the world. The Defendant
PoliceReports.US, LLC, 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 this 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 the
Plaintiffs' personal driver information in the Crash Reports
without the Plaintiffs' consent.
A copy of the Court's Order is available from PacerMonitor.com at
https://bit.ly/3iPUr4w at no extra charge.[CC]
LOUISIANA: Court Denies TRO Motion in Belton Inmates Class Suit
---------------------------------------------------------------
In the case, CLIFTON BELTON, JR., ET AL. v. SHERIFF SID GAUTREAUX,
ET AL, Civil Action No. 20-00278-BAJ-SDJ (M.D. La.), Judge Brian A.
Jackson of the U.S. District Court for the Middle District of
Louisiana denied the Plaintiffs' Emergency Motion for Temporary
Restraining Order.
The action was initially filed on May 4, 2020, pro se, by Plaintiff
Clifton Belton, Jr., an inmate at East Baton Rouge Parish Prison
("EBRPP"), who suffers from numerous medical conditions that he
argued rendered him more susceptible to complications from
COVID-19, which has been detected in inmates at the facility. On
May 27, 2020, an Amended Class Action Complaint was filed on behalf
of 10 named Plaintiffs.
In the Amended Complaint, the Petitioners allege that the jail has
made no efforts to implement the standard protective measures the
medical experts have advised for all people and they outline
numerous factors suggesting that heightened risks are associated
with COVID-19 in jails and prisons. They posit that the
Defendants' failure to implement basic mitigating measures will
cause the number of infections and deaths to multiply exponentially
at a rapid pace. Arguing that the Defendants' responses to the
pandemic are constitutionally deficient and that EBRPP is not fit
to hold human beings, the Petitioners requested relief for three
proposed subclasses of detainees: pretrial, post-conviction, and
medically vulnerable detainees.
To that end, on the same day, the Petitioners filed the instant
Emergency Motion seeking release for all members of the proposed
medically vulnerable subclass. They argue the subclass faces the
highest risk of sickness and death in EBRPP, where social
distancing and "basic mitigating measures, such as hygiene,
testing, and prompt medical care, either have not or cannot be
implemented. Accordingly, the Petitioners argue that until there
is a vaccine, release is the only effective measure to protect
these medically vulnerable detainees. In support, they have
offered declarations and testimony that asserts that social
distancing is impossible within the facility and they cast doubt
upon facility cleanliness, staff conduct, and inmate treatment.
The Court notes that both the President of the United States and
the Governor of Louisiana have declared a state of emergency in
response to this pandemic. Early on in the pandemic, the Center
for Disease Control ("CDC") recognized the inherent challenges
faced by correctional facilities in responding to COVID-19 and
provided specific guidance to that end. Due to the emergency
nature of the request, the Court issued an accelerated filing
schedule and held a preliminary status conference on June 1, 2020,
and a hearing thereafter.
At the hearing, the Court heard oral arguments, as well as witness
testimony, from Petitioner Clifton Belton, Jr.; Dr. Fred Rottnek,
an expert testifying for Petitioners; Defendant Warden Dennis
Grimes; and Phyllis McNeel, a Health Administrator for
CorrectHealth which provides healthcare services to EBRPP.
In opposition to the instant Motion, the Defendants argue that
there is no health emergency at the jail -- that the measures
implemented by EBRPP have prevented deaths and reduced the number
of COVID-19 cases since this action was filed. Further, they argue
that the Petitioners have failed to exhaust administrative
remedies. Lastly, they argue that habeas relief under 28 U.S.C.
Section 2241 is not the appropriate cause of action to bring the
claim because the Petitioners failed to exhaust state court
remedies and inappropriately use the habeas corpus process to
attack the conditions of confinement.
Fundamentally, the Petitioners' aver that, short of release, there
are no measures the Defendants can implement to protect members of
the proposed medically vulnerable subclass from unprecedented and
severe threats to their safety and health. Not only do they argue
that such measures are impossible to implement, the Petitioners
further claim that the Defendants' efforts to protect the medically
vulnerable inmates from COVID-19 "have been virtually
non-existent." Because there are no set of conditions under which
an individual can be constitutionally detained, the Petitioners
argue that they are challenging the fact of their continued
confinement.
Judge Jackson does not interpret that blurry line in the way that
the Petitioners do. The cases cited by the Petitioners
specifically declined to rule on whether claims attacking
conditions of confinement properly sound in habeas, and the subject
matter is such that the Court can only view it as an attack on
conditions of confinement. Substantively, the hearing, the
pleadings, and vast majority of the evidence provided only address
the conditions within EBRPP, which the Court lacks jurisdiction to
address under Section 2241.
The Petitioners propose a plan for individualized assessment for
release, but ultimately request mass release of a class of
medically vulnerable individuals who are defined more broadly than
the CDC's definition. While the Petitioners contend that social
distancing is impossible, they do not consider whether a partial
release could reduce the prison population to a point where social
distancing becomes possible. At its core, the case presents a
disagreement over safety measures taken in a state prison. The
Judge does not see fit to stretch the scope of Section 2241 to
include such claims.
Finally, the Judge is not persuaded that the Petitioners are likely
to succeed on the merits of their claim even if it were to exercise
jurisdiction over the claims. Because their argument is premised
entirely upon the allegedly unconstitutional conditions in the
facility, specifically with respect to the Eighth and Fourteenth
Amendments, the merits of those claims must be briefly examined.
Recently, the Court of Appeals for the Fifth Circuit emphasized
that it is difficult to imagine an activity in which a State has a
stronger interest, or one that is more intricately bound up with
state laws, regulations, and procedures, than the administration of
its prisons.
Moreover, based on the measures taken by EBRPP, it is unlikely that
the Petitioners could establish a claim of subjective deliberate
indifference. The Defendants have clearly demonstrated that they
have taken measures to implement precautions to protect inmates
from the COVID-19 pandemic. They have closely reviewed CDC
guidelines for prisons, implemented screening and hygiene
procedures, distributed masks and cleaning supplies, and even
reduced the prison population and released certain medically
vulnerable prisoners, including Mr. Belton. This does not satisfy
the requisite state of mind indicative of subjective deliberate
indifference, which the Supreme Court has observed to be akin to
recklessness.
The officials at EBRPP consulted with public health professionals,
devised and incorporated safety protocols at the facility, and
informed the inmates of measures that they, themselves, could
perform to protect themselves from the virus while in the facility.
While the Judge does not now reach a judgment on the alleged
Constitutional violations asserted by Petitioners, he finds that
the Petitioners have failed to demonstrate a substantial likelihood
of success on the merits of the habeas claims.
Accordingly, for the foregoing reasons, Judge Jackson denied the
Plaintiffs' Emergency Motion for Temporary Restraining Order.
A full-text copy of the District Court's July 3, 2020 Ruling &
Order is available at https://bit.ly/316GVm8 from Leagle.com.
MARTIN OPERATING: March 23 Settlement Approval Hearing Set
----------------------------------------------------------
Burgess, et al. v. Martin Operating Partnership, LP,
Case Number 19CA-CC00084
Cass County Circuit Court
State of Missouri
READ THIS NOTICE CAREFULLY. YOUR LEGAL RIGHTS ARE AFFECTED WHETHER
YOU ACT OR DO NOT ACT.
A settlement has been reached in a class action lawsuit that
alleges the following "303 Tractor Hydraulic Fluid Products" --
Martin 303 Tractor Hydraulic & Transmission Fluid and Orscheln
Premium 303 Tractor Hydraulic & Transmission Fluid -- did not meet
the equipment manufacturer specifications stated on the label. The
Defendant denies it did anything wrong and states further that the
labels were truthful and adequate. The Court has not decided who
is right. Instead, the parties agreed to a proposed settlement to
avoid the expense and risks of continuing the lawsuit.
You are a Settlement Class Member if you have purchased, not for
resale, one of the following products sold in Missouri during the
stated Class Period:
Product Size Start Class Period End Class Period
Martin 303 5 gal. April 5, 2014 Present
Orscheln 303 5 gal. May 23, 2013 September 2, 2014
The settlement establishes a $450,000.00 "Class Settlement Fund"
that will be paid to Settlement Class Members as: (1) cash awards
of an estimated return of 25% of the purchase price paid for the
303 Tractor Hydraulic Fluid Products and (2) reimbursement for the
costs of any repairs, parts, and specific equipment damage that a
Settlement Class Member claims resulted from, in whole or in part,
the use of the 303 Tractor Hydraulic Fluid Products during the
Class Period. You may need to submit a Claim Form to receive your
award, which can be obtained at www.martin303settlement.com or by
calling 866-742-4955. The deadline to submit a Claim Form is
February 8, 2021. Class Counsel will seek an incentive payment of
$5,000.00 for each of the Class Representatives. Class Counsel
will ask that the Court award up to $150,000.00 in attorneys' fees
and expenses. These amounts will not be paid from the Class
Settlement Fund.
If you do not want to be legally bound by the Settlement, you must
exclude yourself from it by February 8, 2021. If you do not
exclude yourself, you will not be able to sue Defendant or any
Released Party or Retailer for any claim relating to the lawsuit.
If you remain a Settlement Class Member, you may object to the
settlement by February 8, 2021. The Court will hold a hearing on
March 23, 2021 to consider whether to approve the Settlement and a
request for attorneys' fees and expenses. This date may be moved,
canceled, or otherwise modified; see www.martin303settlement.com
for more information. This notice only summarizes the proposed
settlement. For additional information, including the precise terms
and conditions of the Settlement, please see
www.martin303settlement.com or call 866-742-4955.
If you have questions or would like assistance in completing a
Claim Form, contact Class Counsel at 816-595-7723 or at
303claimsassistant3@gmail.com
A State Court authorized this Notice. This is not a solicitation
from a lawyer. [GN]
MONTGOMERY, AL: Carter Seeks to Certify 4 Classes
-------------------------------------------------
In the class action lawsuit captioned as ALDARESS CARTER,
Individually and on behalf of a class of similarly situated
persons, v. THE CITY OF MONTGOMERY, et al., Case No.
2:15-cv-00555-RCL-SMD (M.D. Ala.), the Plaintiff asks the Court for
an order:
1. certifying four Classes under Rules 23(a) and 23(b)(3) of
the Federal Rules of Civil Procedure:
A City 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 August 3, 2013";
A JCS Bearden Subclass:
"consisting of all individuals in the City Class who
served any of their post-commutation jail time on or after
September 11, 2013;
A Kloess Subclass:
"consisting of all individuals in the City Class whose
debt was commuted to jail time on a date when Branch
Kloess was the public defender assigned to the jail docket
or for whom Benchmark court records or other documents
indicate the individuals were represented by Branch Kloess
for the commutation; and
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 September 11, 2009";
2. appointing himself as representative of the Classes; and
3. appointing The Evans Law Firm, Public Justice, and Terrell
Marshall Law Group PLLC as counsel for the Classes.
Montgomery is the capital city of Alabama.
A copy of the Plaintiff's Motion for Class Certification is
available from PacerMonitor.com at https://bit.ly/2FSzfwc at no
extra charge.[CC]
Counsel for Plaintiff and the Proposed Classes are:
G. Daniel Evans, Esq.
Alexandria Parrish, Esq.
Maurine C. Evans, Esq.
THE EVANS LAW FIRM, P.C.
1736 Oxmoor Road, Suite 101
Birmingham, AL 35209
Telephone: (205) 870-1970
E-mail: gdevans@evanslawpc.com
ap@evanslawpc.com
mevans@evanslawpc.com
- and -
Toby Marshall, Esq.
TERRELL MARSHALL LAW GROUP PLLC
936 North 34th Street, Suite 300
Seattle, WA 98103
Telephone: (206) 816-6603
E-mail: tmarshall@terrellmarshall.com
- and -
Leslie A. Bailey, Esq.
Brian Hardingham, Esq.
Alexandra Brodsky, Esq.
PUBLIC JUSTICE
475 14th Street, Suite 610
Oakland, CA 94612
Telephone: (510) 622-8150
E-mail: lbailey@publicjustice.net
bhardingham@publicjustice.net
abrodsky@publicjustice.net
MORTGAGE LENDERS: Obtains Partial Summary Judgment in Charbonneau
-----------------------------------------------------------------
In the case, BEAU CHARBONNEAU, on behalf of himself and others
similarly situated, Plaintiff, v. MORTGAGE LENDERS OF AMERICA,
L.L.C., et al., Defendants, Case No. 2:18-cv-2062-HLT-ADM (D.
Kan.), Judge Holly L. Teeter of the U.S. District Court for the
District of Kansas (i) granted the Defendants' Motion for Partial
Summary Judgment, and (ii) denied as moot and without prejudice the
Plaintiff's motion for class certification.
Plaintiff Charbonneau brings the putative collective and class
action under the Fair Labor Standards Act ("FLSA") and the Kansas
Wage Payment Act ("KWPA"). The Plaintiff also alleges state law
claims for breach of contract and unjust enrichment/quantum meruit.
He claims that his former employer -- Defendant Mortgage Lenders
of America, L.L.C. ("Defendant MLOA") -- misclassified a certain
employment position ("team lead") as an exempt position. The
Plaintiff also claims that Defendant MLOA requires non-exempt
employees (specifically, loan officers) to perform work off the
clock, without pay, and that Defendant MLOA unlawfully deducted
certain fees from the Plaintiff's wages.
The Plaintiff is a former employee of Defendant MLOA. While an
employee, the Plaintiff worked in two different capacities: as a
loan officer and as a team lead. He was a loan officer during two
separate periods of time and a team lead for a single period of
about three years in between. His employment in each role was
governed by one or more employment agreements
.
The Plaintiff brings two claims under the FLSA (Counts I and II)
that are not at issue in the present motion. He also brings a
claim for unjust enrichment/quantum meruit (Count V) that he
voluntarily dismisses through his response brief.
The remaining claims at issue are:
a. Count III: The Plaintiff, in his role as a loan officer,
alleges that Defendant MLOA is liable under the KWPA for unlawful
withholding of straight time and overtime wages. The Plaintiff
claims that, [b]y failing to accurately record, maintain records
of, and pay for his actual hours worked, the Defendant MLOA
willfully reduced the total number of hours on his paychecks.
b. Count IV: The Plaintiff, in both his roles as a loan officer
and as a team lead, alleges that Defendant MLOA withheld, deducted,
or diverted certain credit report fees and appraisal fees from his
wages. He claims that the act violates the KWPA because the KWPA
prohibits withholding, deducting, or diverting any portion of his
wages, except under limited circumstances.
c. Count VI: The Plaintiff, in his role as a loan officer, claims
that Defendant MLOA breached its employment compensation agreements
with him. The breach was based both on (1) Defendant MLOA's
failure to compensate him for all hours worked, including straight
time and overtime, as well as (2) Defendant MLOA's failure to pay
him all contractually promised wages when it withheld, deducted, or
diverted credit report fees and appraisal fees from earned wages.
d. Count VII: The Plaintiff, in his role as a team lead, alleges
that Defendant MLOA breached the parties' employment agreement by
failing to pay him all contractually-promised wages when it
withheld, deducted, or diverted credit report fees and appraisal
fees from earned wages.
The Plaintiff brings all four of these claims on his own behalf, as
well as on behalf of putative classes defined in the complaint. He
has filed a motion to certify those classes.
The matter is before the Court on the Defendants' Motion for
Partial Summary Judgment.
Although the breach of contract claims are not chronologically
first in the Plaintiff's complaint, Judge Teeter turns to them
first because they form the basis for at least some of the
Plaintiff's KWPA claims.
The Judge concludes that Defendant MLOA has established that it is
entitled to summary judgment on the Plaintiff's loan officer breach
of contract claim (Count VI). The Judge finds (i) the agreements
unambiguously promised that the Plaintiff would receive minimum
wage for the hours he worked; (ii) the Defendant MLOA's general
statement that the Plaintiff is eligible for overtime in accordance
with applicable laws is nothing more than a reiteration of
something it is already bound to do; (iii) the deductions for the
penalties did not breach the contracts as a matter of law; (iv) no
evidence that Defendant MLOA breaches the employment contract that
was in place at the time; and (v) there is not a genuine issue of
material fact as to whether the first contract was breached and no
reasonable jury could find for the Plaintiff on the evidence before
the Court.
Next, the Plaintiff's claim for breach of contract in Count VII (as
team lead) is subject to the same fate as his breach claim in Count
VI for improper deductions when the Plaintiff was a loan officer.
Defendant MLOA is therefore entitled to summary judgment on
Plaintiff's team lead breach of contract claim.
Because the Plaintiff has no cause of action under the KWPA, the
Judge need not address the Plaintiff's argument -- aimed to avoid
preemption -- that the longer statute of limitations in Kansas
creates more rights than those offered by the FLSA. Further,
although the parties spend much time debating whether Defendant
MLOA had procedures for reporting overtime and whether reporting
overtime was actually a viable option, the Judge need not reach
those issues. Because Defendant MLOA is covered by the FLSA, that
federal statute is the Plaintiff's sole option for attempting to
collect minimum wage and overtime pay based on a statute. There
simply is not a Kansas statutory option under these circumstances.
As for Count IV, the Judge finds that the Plaintiff's evidence does
not create a genuine issue of material fact as to whether the wages
were earned before the fees were deducted. The plain language of
the contracts establishes when the commissions are considered
"earned." Against that plain language, the Plaintiff offers two
legal conclusions (in the form of his own affidavit and Mr.
Kneibert's testimony, which was given over objection as to the
legal terminology of "wages") and a paystub, which reveals a tax
issue but no helpful information on what constitutes earned wages
under the contract. The evidence neither creates an ambiguity nor
a triable issue.
The contractual provisions titled "Commissions Condition" create
permissible conditions precedent to the Plaintiff's earning of
wages. Until deductions were made from the Plaintiff's commissions
for his hourly wages, uncollected fees, and credit report costs,
his wages were not earned under the plain language of the
contracts. Defendant MLOA's commission calculation and payments
pursuant to that calculation, therefore, did not violate the KWPA.
Finally, the Plaintiff voluntarily dismissed Count V in his
response to the Defendants' summary judgment motion. The Judge,
therefore, considers it dismissed and declines to discuss it
further.
Judge Teeter concludes that she will grant summary judgment on the
Plaintiff's breach of contract claims because the Plaintiff has not
demonstrated (1) any damages based on loss of straight-time pay, or
(2) a breach of any contractual promise regarding overtime wages or
the withholding of certain fees. The Judge will also grant summary
judgment on the Plaintiff's claims under the KWPA because (1) his
only statutory cause of action for unpaid straight-time and
overtime wages is under the FLSA, and (2) the Plaintiff has not
presented a genuine issue of fact that any earned wages were
wrongfully withheld.
Based on the foregoing, Judge Teeter granted the Defendants' Motion
for Partial Summary Judgment. The Defendants are granted summary
judgment on Counts III, IV, VI, and VII. Count V is dismissed
without prejudice. The decision renders the Plaintiff's pending
motion for class certification moot. Without valid underlying
state law claims, the Judge cannot certify a class. The Judge
therefore denied as moot and without prejudice the Plaintiff's
motion for class certification.
A full-text copy of the Court's June 30, 2020 Memorandum & Order is
available at https://bit.ly/3dttlhD from Leagle.com.
NATIONAL FREIGHT: Court Grants Motion to Seal in Portillo Suit
--------------------------------------------------------------
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, (i)
denied the Plaintiffs' Motion to Strike; (ii) granted the parties'
Joint Motion to Seal; and (ii) granted in part and denied in part
the Defendants' Motion to Strike.
The case stems from an employee/independent contractor
classification dispute between Named Plaintiffs Portillo, Rafael
Suarez, Martin Duran, German Bencosme, Edin Vargas, Luis A.
Hernandez, Josue Paz, and Alvaro Castaneda, individually and on
behalf of others similarly situated, and the Defendants. Discovery
in the case was extended several times, but closed on Sept. 16,
2019.
The Court addresses three of the parties' pending motions in the
Opinion, each of which relates to a fourth pending motion: the
Plaintiffs' Motion for Class Certification. The Defendants timely
filed their response in opposition to the Class Certification
Motion. The Defendants filed several declarations in support of
their Opposition. The Plaintiffs take issue with 10 of those
declarations, and therefore filed their Motion to Strike.
The Defendants' Opposition also included two documents that all
parties agree are confidential. Specifically, the two confidential
documents -- Docket Nos. 143-38 and 143-39 -- are two agreements
signed by two named Plaintiffs and non-party entities that contain
confidentiality provisions. The parties filed the Joint Motion to
Seal those two documents on Nov. 15, 2019.
Meanwhile, the Plaintiffs filed their reply in support of their
Motion for Class Certification on Nov. 1, 2019. They included in
that filing a declaration from Rebecca Shuford; the Plaintiffs also
included a separate declaration from Shuford with their original
Motion for Class Certification. Furthermore, a section of the
Plaintiffs' reply brief made a choice-of-law argument because the
Defendants devoted a portion of their Opposition to the choice of
law.
The Defendants believe that Shuford's two declarations and the
Plaintiffs' choice-of-law argument should be stricken, so they
filed their Motion to Strike on Nov. 22, 2019. In that Motion, the
Defendants argue in the alternative that they should be permitted
to file a sur-reply brief, and they attach their proposed sur-reply
brief.
As to the Plaintiffs' Motion to Strike, the Plaintiffs have
requested that the Court strike ten declarations -- some in part
and some in full -- that the Defendants filed in support of their
Opposition to the Plaintiffs' Motion for Class Certification. The
Plaintiffs have categorized the nine declarations into four groups,
which the Court will mostly adopt: the "Happy Camper Declarations,"
the "Company Declarations," the "Speakman Declaration," and the
"Hayden Declaration." The Happy Camper Declarations are the
declarations of Antonio Polanco, Randy Williams, Gilberto Dacosta,
Rowan Montaque, Dwayne Storey, and John Fry. The Company
Declarations are the declarations of Lee Robledo and Gina Johnson.
The Speakman Declaration is the declaration of Robert B. Speakman,
Jr., Ph.D. The Hayden Declaration is the declaration of Michael
Hayden.
Judge Rodriguez finds that the Defendants' failure to disclose the
Happy Camper and Company Declarants was "harmless." As such, he
will not strike the Happy Camper and Company Declarations. While
the Plaintiffs were unable to conduct discovery around these
particular individuals, the Judge finds that such prejudice is
slight in this instance. Additionally, the inclusion of these
declarations does not disrupt the case in any considerable way; in
fact, their exclusions would likely be far more disruptive to the
case. Finally, while the Defendants certainly could have been more
forthcoming in their approach to discovery, the Court does not
consider their actions to have been in bad faith.
The Judge also finds that the Defendants did not comply with Rule
26 with respect to the signed 2019 Agreements, but their failure to
do so was harmless. The transgression is harmless and the Rule
37(c)(1) factors do not require the signed 2019 Agreements to be
stricken. Therefore, the Court will not strike Paragraph 13 of the
Hayden Declaration or any reference in the Defendants' Opposition
to the signed 2019 Agreements.
Finally, the Judge finds that not striking the Speakman Declaration
would not disrupt the proceedings, and that the Defendants did not
act in bad faith by failing to disclose Speakman as a witness.
Therefore, the Judge finds that while the Defendants improperly
failed to disclose Speakman as a witness, that failure was
harmless, and the Speakman Declaration need not be stricken.
As to the Defendants' Motion to Strike, they seek to strike two
Declarations by Rebecca Shuford -- the Shuford Declaration and a
second that was submitted later -- as well as a legal argument made
by the Plaintiffs in their reply brief in support of their Motion
for Class Certification. The Defendants' argument about the
Shuford Declarations rely on the finding that Shuford is an expert.
The second portion of the Defendants' Motion to Strike revolves
around the argument put forth by the Plaintiffs in their reply
brief about a choice-of-law issue. They argue that the Plaintiffs
waived the relevant arguments by not including them in their
original brief in support of the Motion for Class Certification.
Judge Rodriguez denies the Defendants' Motion insofar as it will
not strike the Shuford Declarations and the Plaintiffs'
choice-of-law arguments. He finds that it is in the interest of
justice to permit the Defendants to file a sur-reply brief to
ensure that the issue is fully addressed. It is especially true
given the fact that the Defendants would otherwise be unable to
adequately respond to the majority of the Plaintiffs' choice-of-law
argument, which is found in its reply brief. However, Judge
Rodriguez grants the Defendants' Motion with respect to filing a
sur-reply brief.
Finally, the parties filed a Joint Motion to Seal Docket Nos.
143-38 and 143-39. The Joint Motion also sought to unseal Docket
Nos. 130-15 and 131. The Judge finds that the parties' Joint
Motion satisfied Local Rule 5.3(c)'s requirements.
For the reasons stated, Judge Rodriguez (i) denied the Plaintiffs'
Motion to Strike; (ii) granted in part and denied in part the
Defendants' Motion to Strike; and (iii) granted the parties' Joint
Motion to Seal.
A full-text copy of the District Court's June 30, 2020 Opinion is
available at https://bit.ly/3k2F8pL from Leagle.com.
NAVIENT SOLUTIONS: Carlin Appeals E.D. Va. Decision to 4th Cir.
---------------------------------------------------------------
Plaintiff Nancy Carlin filed an appeal from the District Court's
Order entered in the lawsuit styled Nancy Carlin v. Navient
Solutions, LLC, Case No. 1:19-cv-00491-LMB-TCB, in the U.S.
District Court for the Eastern District of Virginia (Alexandria).
On Feb. 11, 2020, the District Judge Leonie M. Brinkema entered an
order granting the Defendant's Motion for Summary Judgment. The
remaining four motions--Defendant's Motion to Strike Declaration of
Jeffrey Hansen, Plaintiff's Motion to Strike/Exclude Paragraphs 17
and 18 from the Declaration of Joshua Dries, plaintiff's Motion to
Overrule and Strike from the Record Defendant's Daubert Objection
as Untimely, and Plaintiff's Motion for Extension of Time to
Respond to Defendant's Daubert Objection are denied as moot.
The appellate case is captioned as NANCY CARLIN, individually and
on behalf of all others similarly situated v. NAVIENT SOLUTIONS,
LLC, f/k/a Navient Solutions, Inc., f/k/a Sallie Mae, Incorporated,
Case No. 20-1300, in the United States Court of Appeals for the
Fourth Circuit.
As previously reported in the Class Action Reporter, the Plaintiff
seeks damages, and other legal and equitable remedies, resulting
from the illegal actions of the Defendant, either directly or
indirectly by some other person acting as its agent or on its
behalf, in negligently, knowingly, and/or willfully making calls to
the cellular phone numbers of plaintiff and class and subclass
members using an "automatic telephone dialing system," and/or using
"an artificial or prerecorded voice" without their prior express
consent within the meaning of the Telephone Consumer Protection
Act, and the Federal Communication Commission.
The Defendant's calls to the Plaintiff's cell phone number for
non-emergency purposes and in the absence of the Plaintiff's prior
express consent violated the TCPA, says the complaint.
The Plaintiff is a resident of Wisconsin.
The Defendant is the largest student loan servicer in the United
States. Defendant services the loans of more than 12 million
borrowers and more than $300 billion in federal and private student
loans.[BN]
The Plaintiff-Appellant is represented by:
William L. Downing, Esq.
CONSUMER & EMPLOYEE RIGHTS LAW FIRM, PC
751 Thimble Shoals Boulevard
Newport News, VA 23606-0000
The Defendant-Appellee is represented by:
Michael A. Hass, Esq.
GREENBERG TRAURIG, LLP
1750 Tysons Boulevard
McLean, VA 22102-0000
Telephone: 703-749-1300
NBTY INC: Ninth Circuit Appeal Filed in Alvarez Consumer Suit
-------------------------------------------------------------
Plaintiff Rosa Alvarez filed an appeal from the District Court's
ruling entered in the lawsuit styled Rosa Alvarez, et al. v. NBTY,
Inc., et al., Case No. 3:17-cv-00567-BAS-BGS (Filed March 22,
2017), in the U.S. District Court for the Southern District of
California (San Diego).
The appellate case is captioned as ROSA ALVAREZ, On Behalf of
Herself and All Others Similarly Situated v. NBTY, INC., a Delaware
corporation and NATURE'S BOUNTY, INC., a Delaware corporation, Case
No. 20-55220, in the United States Court of Appeals for the Ninth
Circuit.
On Feb 27, 2020, the Hon. Circuit Judges William C. Canby and
Ronald M. Gould, grants the petition for permission to appeal the
District Court's May 22, 2019 order denying class action
certification, in a related case with Case No. 19-80071.
Nature's Bounty Co., formerly known as NBTY, is an American
manufacturer of vitamins and nutritional supplements, which are
distributed under many third party brands in the United States and
internationally. Its name was changed from Nature's Bounty, Inc. to
NBTY, Inc. in 1995.[BN]
The Plaintiff-Appellant is represented by:
Manfred P. Muecke, Esq.
Elaine A. Ryan, Esq.
Patricia N. Syverson, Esq.
BONNETT FAIRBOURN FRIEDMAN & BALINT PC
600 West Broadway, Suite 900
San Diego, CA 92101
Business: 619-756-6978
Personal: 619-798-4292
- and -
Stewart M. Weltman, Esq.
WELTMAN LAW LLC
3841 N. Wayne Avenue
Chicago, IL 60613
Personal: 312-504-1988
The Defendant-Appellees are represented by:
Amanda L. Groves, Esq.
Shawn R. Obi, Esq.
WINSTON & STRAWN LLP
300 South Tryon Street, 16th Floor
Charlotte, NC 28202
Business: 704-350-7745
- and
Andrew C. Nichols, Esq.
CHARIS LEX P.C.
4250 N. Fairfax Drive, Suite 600
Arlington, VA 22203
Personal: 571-549-2645
NEW YORK: Court Grants Class Certification Bid in Stiegman Suit
---------------------------------------------------------------
In the class action lawsuit captioned as Victor Karl Daniel
Stiegman, individually, and on behalf of all others similarly
situated, v. New York State Office of Information Technology
Services, Case No. 1:19-cv-00018-GTS-CFH (N.D.N.Y.), the Court
entered an order granting a motion for class certification on
behalf of:
"(1) any individual aged 40 years or older with a disability,
as defined by the American with Disabilities Act, and who
is/was employed, or pursuing employment, in a State of New
York Department of Civil Service Classified position; and (2)
a subclass of any individual aged 40 years or older with a
disability, as defined by the American with Disabilities Act,
and who is/was employed, or pursuing employment, in a State
of New York Department of Civil Service classified position
represented by the Public Employee Federation, pursuant to
FRCP 23(c)(5)."
The Court held that the Proposed Class satisfies the requirements
of FRCP 23(b). In addition to FRCP 23(a) requirements, the
Plaintiff must also demonstrate that the proposed class action fits
within one of the categories described in Rule 23(b). Each class
satisfies FRCP 23(b)(2), since the evidence indicates that the
defendant "opposing the class has acted or refused to act on
grounds generally applicable to the class, thereby making
appropriate final injunctive relief or, corresponding declaratory
relief with respect to the class as a whole." Class members are
also entitled to injunctive relief to end the defendant's practices
that discriminate against a discrete and insular minority,
individuals who are 40 years or older who have a disability."
On January 4, 2019, Mr. Stiegman, individually, and on behalf of a
class of all others similarly situated, filed a federal civil class
action complaint as a Pro Se litigant against the Defendant
alleging violations of the United States Constitution and Federal
Law against a discrete and insular minority, individuals 40 years
and older with a disability.
The Plaintiff is an individual with a disability, including a
history of cancer.
The New York State Office of Information Technology Services was
created in 2012 to transform IT services in an effort to make New
York State government work smarter for its citizens and enable the
state to be accessible for businesses through the use of
technology.
A copy of the Court's Order Granting Motion to Certify Class is
available from PacerMonitor.com at https://bit.ly/2FQxWhc at no
extra charge.[CC]
NINTENDO OF AMERICA: Can Compel Arbitration in Carusone Class Suit
------------------------------------------------------------------
In the case, GILLIAN CARUSONE, on behalf of herself and all others
similarly situated, Plaintiff, v. NINTENDO OF AMERICA, INC.,
Defendant, Case No. 5:19-cv-01183-LCB (N.D. Ala.), Judge Liles C.
Burke of the U.S. District Court for the Northern District of
Alabama, Northeastern Division, granted in part and denied in part
the Defendant's Motion to Compel Arbitration and Dismiss.
Carusone filed the putative class action against Defendant Nintendo
on behalf of herself and all similarly situated individuals --
Alabama residents who purchased a Nintendo Switch console or
Joy-Con controllers -- for an alleged controller defect known as
"drifting."
On July 21, 2017, the Plaintiff purchased a Nintendo Switch
video-game console at a Best Buy in Huntsville, Alabama for
$299.99. About 22 months after her purchase, the Plaintiff noticed
a problem that began to interfere with her gameplay. The left
joystick of her controllers, known as Joy-Cons, which are used to
direct gameplay on the console and come included with her Switch
package, began to "drift." When a controller "drifts," it
registers movement in gameplay without a player's manual control.
Because the drifting interfered with her use of the Switch, the
Plaintiff purchased a new set of Joy-Cons for $69 on July 4, 2019.
Other Joy-Con users reported similar problems with drifting
Joy-Cons.
All new Switches, when first powered on, require the purchaser to
accept the terms of an "End-User License Agreement" ("EULA").
Through a series of screens, the purchaser is asked to select a
language and region, and then to accept the terms of the EULA. The
latter screen is entitled "End-User License Agreement." Beneath
the message is a hyperlinked button, rendered in a box of bright
and pulsating blue, that reads "View End-User License Agreement"
and provides the purchaser with instant access to the full EULA.
And beneath that button is the word "Accept" and a small white box.
The purchaser cannot advance to the next screen without clicking
"Accept." Only by selecting the button and accepting the EULA can
the purchaser proceed, activating a grayed-out "Next" button and
transitioning to the next screen.
The EULA contains a provision for mandatory individual arbitration
and a class-action waiver, a provision that the purchaser may
choose to opt out of. The purchasers are advised of the provision
and the opt-out election in the EULA's preamble, which states that
the EULA. Section 7 contains the arbitration and
class-action-waiver provision.
If a purchaser does not wish to accept the EULA, she can either
return the system or opt out of the arbitration provision by
providing written notice to the Defendant within 30 days of
purchase. The Plaintiff does not dispute that she clicked the
"Accept" button on the End-User License Agreement screen to
complete the post-purchase account-creation process before using
the Switch. Nor does she allege any attempt to exercise either
opt-out option.
On July 24, 2019, the Plaintiff brought suit against the Defendant
on behalf of herself and the prospective class members who
experienced similar drift issues with their controllers. She
asserts six counts against the Defendant, including violations of
federal and state law, for the faulty Joy-Cons. The Defendant
contends that the Plaintiff has waived her right to file the
lawsuit by agreeing to resolve her claim individually through
arbitration, and the Defendant now moves to dismiss or, in the
alternative, stay the action and compel arbitration.
The only issue to be decided is whether there is a valid
arbitration agreement; whether the Plaintiff's claims fall within
the scope of the agreement is not in dispute. The Defendant argues
that by signing the EULA and failing to opt out of the EULA's
arbitration provision, Plaintiff thereby agreed to arbitration.
The Plaintiff raises four objections to the agreement's validity:
(1) that the arbitration agreement is invalid because it lacked
mutual assent; (2) that the arbitration agreement is invalid
because it lacked consideration; (3) that the Switch could not be
returned as described in the EULA; and (4) that internal
inconsistencies render the contract unenforceable.
Judge Burke finds that the Plaintiff accepted the EULA and
continued to use her Switch. Therefore, Plaintiff manifested the
requisite assent to the essential terms of the contract, including
the arbitration provision. The Plaintiff provided no evidence that
she sent written notice to Defendant that she chose to opt out of
the arbitration agreement, and on the Defendant's part there is no
record that the Plaintiff exercised the option. Accordingly, the
Plaintiff's argument that she did not manifest unambiguous consent
to the arbitration agreement is meritless, the Court finds.
The Plaintiff argues that there is no consideration for the
agreement because the Defendant refused to give purchasers what
they paid for usable Joy-Cons until they made additional
concessions signing the EULA that were not part of the original
bargain and were not referenced prior to or during the sale.
However, the argument ignores the Defendant's obligation to be
bound by the results of arbitration. The language of the EULA
provides that the Defendant agreed to arbitrate the Plaintiff's
individual claims. Because the Defendant agreed to forfeit its
right to litigate issues with the Plaintiff in Court, the
arbitration agreement is supported by adequate consideration.
The Plaintiff quarrels over the Defendant's characterization of the
Switch return policy concerning arbitration. The Defendant claims
that one way users could avoid agreeing to the arbitration
provision was returning the Switch to the store for a full refund.
The Judge finds no legal support that a contract with an
arbitration agreement must contain an "opt out" provision to be
valid under Alabama law. The Plaintiff also cites no legal
authority that supports inconsistent return policies would
invalidate the arbitration agreement.
Even if the Plaintiff could not return her Switch for the full
price, there was another option she could have selected if she did
not want to arbitrate. Because the impediments to exercising the
first option are merely hypothetical, and because the Plaintiff did
not write to the Defendant to exercise the second option, the
Plaintiff's argument is irrelevant to the validity of the
arbitration agreement.
Finally, the Plaintiff argues that ambiguities in the arbitration
clause render it unenforceable. The Judge holds that there is
clear and unmistakable evidence that the Plaintiff agreed to the
EULA, including the EULA's binding arbitration clause. Because
there is no genuine dispute as to any material fact that the
Plaintiff accepted the EULA, the Judge concludes as a matter of law
that the arbitration agreement between the parties is valid and
enforceable.
For the reasons stated, Judge Burke granted in part and denied in
part the Defendant's Motion to Compel Arbitration and Dismiss. The
Judge granted the Defendant's motion to compel arbitration, and
denied the Defendant's motion to dismiss. The case is stayed until
the arbitration has been completed in accordance with the terms of
the agreement.
The Clerk is directed to close the file for administrative and
statistical purposes. The action will have no effect on the
Court's retention of jurisdiction, and the file may be re-opened,
on either party's motion, for an appropriate purpose, such as
dismissal following settlement, entry of judgment, vacatur, or
modification of an arbitrator's award.
The parties are ordered to notify the Court with the progress of
the arbitration every 90 days from the entry of the Order until the
proceeding concludes.
A full-text copy of the District Court's June 30, 2020 Memorandum
Opinion & Order is available at https://bit.ly/2SZo9ZC from
Leagle.com.
OHIO: $153,000 Legal Fees & Costs Awarded in Intercommunity Suit
----------------------------------------------------------------
In the case, INTERCOMMUNITY JUSTICE AND PEACE CENTER, et al.,
Plaintiffs, v. REGISTRAR, OHIO BUREAU OF MOTOR VEHICLES, Defendant,
Case No. 2:18-cv-1247 (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. 16, 2018, the Plaintiffs filed the action seeking
declaratory and injunctive relief against the Registrar. In their
Complaint, the Plaintiffs alleged that a policy of the BMV
Registrar denied them driver's licenses and/or state identification
cards based upon the immigration status of their parents violated
the Equal Protection Clause of the Fourteenth Amendment to the
Constitution.
On Feb. 25, 2020 the Court granted class certification under
Federal Rule of Civil Procedure 23(b)(2) of a class consisting of
all 16- and 17-year-olds residing in Ohio who are U.S. citizens or
otherwise 'legally present,' and whose parents are non-citizens and
do not possess the required United States Citizenship and
Immigration Services documentation to co-sign the minors' driver's
license or state identification card applications.
Additionally, the Court designated Advocates for Basic Legal
Equality, Inc. ("ABEL") and Porter Wright Morris & Arthur LLP
("Porter Wright") as the class counsel. In the same Order, the
Court granted the Plaintiff's motion for summary judgment. In
doing so, the Court held that the Defendant's policy violated the
Equal Protection Clause.
The Plaintiffs now move for an award of attorney's fees in the
amount of $151,974 and costs in the amount of $1204,69.
Judge Sargus finds that the Plaintiffs' counsel's reasonable hours
at reasonable rates produce a lodestar of $151,974 ($122,620 to
ABEL and $29,354 to Porter Wright). Thus, the Judge concludes that
the Plaintiffs requested amount of $151,974 is reasonable under the
lodestar analysis and awards the requested amount.
The Plaintiffs ask for $1,204.69 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 Plaintiffs assert that these
expenses were reasonable and necessary to prosecuting their claims.
The Defendant does not argue against the reasonableness of these
costs. The requested costs do not appear excessive. Therefore,
the Judge awards $1,204.69 in costs.
In sum, the Plaintiffs Motion for Attorney's Fees and Costs is
granted. The Plaintiffs are awarded $151,974 in attorney's fees
and $1,204.69 in costs.
A full-text copy of the Court's June 30, 2020 Opinion & Order is
available at https://bit.ly/31a6LWe from Leagle.com.
OHIO: Supreme Court Reverses Class Certification Order in Pivonka
-----------------------------------------------------------------
In the case, PIVONKA et al., Appellees, v. CORCORAN, DIR.,
Appellant, Case No. 2019-0084 (Ohio), the Supreme Court of Ohio
reversed the judgment of the Eighth District Court of Appeals
affirming the trial court's decision to certify the class, and
remand the cause to the trial court for further consideration.
In the appeal, the Ohio Supreme Court is asked to determine whether
the common pleas court had subject-matter jurisdiction over a class
action filed by Plaintiffs-Appellees Pivonka and Lisa Rijos. That
class action seeks a declaratory judgment that former R.C. 5101.58,
which relates to Medicaid reimbursements, is unconstitutional and
also seeks to recover all sums paid to the Ohio Department of
Medicaid ("Department") under that statute.
The federal government established the Medicaid program in 1965
through Title XIX of the Social Security Act, as amended in 42
U.S.C. 1396 et seq. The program provides joint federal and state
funding for medical care for individuals who cannot afford to pay
their own medical costs. States are not required to participate in
the Medicaid program, but they all do. The federal law also
requires that each participating state give itself subrogation
rights to recover certain costs the state paid under the Medicaid
program.
Ohio's Medicaid subrogation rights statute was originally contained
in former R.C. 5101.58, repealed in 2013 Am. Sub.H.B. No. 59. That
statute gave the Ohio Department of Job and Family Services
("ODJFS") a "right of recovery" against a third party's liability
to a Medicaid participant for medical services and care resulting
from an injury, disease or disability caused by the third party.
Other states, including Arkansas, had similar Medicaid subrogation
statutes allowing those states to recover up to the entire amount
of the medical costs they paid on the Medicaid participant's behalf
without regard to whether the settlement or court judgment
allocated a lesser amount for reimbursement of medical expenses.
After the decision in Wos v. E.M.A. ex rel. Johnson, and again
without a court's declaration that former R.C. 5101.58 was invalid
or unconstitutional, the General Assembly amended Ohio's Medicaid
subrogation statute and renumbered it as R.C. 5160.37. The new
statute took effect on Sept. 29, 2013, and the General Assembly
amended it yet again on Sept. 29, 2015. The 2015 version of R.C.
5160.37 still contained language similar to that in former R.C.
5101.58(A) and (G)(2), giving the Department an automatic right of
recovery against liability for medical costs paid by a third-party
tortfeasor. But, the 2015 version of R.C. 5160.37 created a
"rebuttable presumption" that the Department would receive no less
than one-half of the remaining amount of the judgment, award or
settlement after fees, expenses, and costs were deducted. It also
provided a mechanism for a Medicaid participant to rebut the
statute's presumption by way of an administrative hearing.
Relevant to the class of the Plaintiffs involved in the case, the
statute created a process to address overpayments made after the
Sept. 29, 2007 post-Ahlborn amendments to R.C. 5101.58. The
statute expressly provides that the administrative procedure
outlined in divisions (L) through (N) is the sole remedy available
to a party who claims the department or a county department has
received or is to receive more money than it is entitled to receive
under that section, section 5160.38 of the Revised Code, or former
section 5101.58 or 5101.59 of the Revised Code. According to the
Department, it sent notices to participants who had reimbursed the
Department under the older versions of the Medicaid subrogation
statute regarding the new administrative-hearing process under R.C.
5160.37.
Pivonka and Rijos filed their class-action complaint in the
Cuyahoga County Common Pleas Court on April 5, 2013, before R.C.
5160.37 was enacted. Their complaint seeks disgorgement and
repayment of all sums the Department received pursuant to its right
of recovery under former R.C. 5101.58 and a declaration that former
R.C. 5101.58 is preempted by federal law and is unconstitutional
under the Supremacy Clause. They argued that former R.C. 5101.58
is invalid pursuant to the decision in Wos.
The named Plaintiffs filed their complaint on behalf of themselves
and similarly situated individuals who had both received a demand
from the Department for repayment of medical expenses pursuant to
former R.C. 5101.58 and had paid any amount to the Department
pursuant to the Subrogation Statute. As to the named Plaintiffs,
Pivonka reached a settlement with a third-party tortfeasor in July
2012. Because he had received Medicaid benefits relating to his
injuries, the Department collected $7,108.74 from the settlement.
In 2013, Rijos received a compensatory-damages award in a
negligence action against a third-party tortfeasor following a jury
verdict. The Department collected $703.16 of Rijos's award
pursuant to its statutory right to subrogation.
On April 10, 2013, Pivonka and Rijos moved to certify as a class
all persons who paid any amount to the Department pursuant to
former R.C. 5101.58, from April 6, 2007, to the present, without
requirement of court order."
The Department filed a motion to dismiss the complaint and later
filed a motion for summary judgment, arguing that former R.C.
5101.58 is constitutional and that the Department had the right to
collect the reimbursements under the statute. The trial court
denied both motions. The Department also moved for judgment on the
pleadings, arguing that the General Assembly divested the common
pleas court of jurisdiction when it enacted R.C. 5160.37. The
trial court denied the Department's motion for judgment on the
pleadings on Jan. 4, 2016, finding that the issue should not be
decided on the pleadings alone.
The trial court certified the class on Dec. 21, 2017. The
Department appealed the trial court's Dec. 21, 2017 decision
granting plaintiffs' motion for class certification to the Eighth
District Court of Appeals. The court of appeals affirmed the trial
court's decision. It determined that R.C. 5160.37 did not divest
the trial court of subject-matter jurisdiction because Pivonka and
Rijos sought a declaratory judgment that former R.C. 5101.58 is
unconstitutional. It determined that because administrative
agencies cannot decide the constitutional validity of a statute and
because that was the sole issue underlying Plaintiffs' claims, it
would be futile and impractical to require the Olaintiffs to first
seek redress through the administrative process.
The Court accepted jurisdiction to consider the Department's two
propositions of law. In its first proposition of law, the
Department contends that by statute, claims that the State
overcollected for Medicaid recovery may not be brought in common
pleas courts, except as an administrative appeal. In its second
proposition of law, the Department argues that a class action may
be certified only if rigorous analysis reveals that all
prerequisites have been met -- even if that analysis also touches
upon the merits of the dispute.
The Department also argues in its merit brief for the first time in
the case that absent the applicability of the administrative-review
process contained in R.C. 5160.37 to the Plaintiffs' claims, the
Ohio Court of Claims has jurisdiction because the Plaintiffs'
claims involve a lawsuit for money damages against the state.
The Ohio Supreme Court concluded that R.C. 5160.37 created the sole
remedy for the named Plaintiffs and the unnamed class members who
repaid money to the Department on or after Sept. 29, 2007, pursuant
to the Department's right of recovery under former R.C. 5101.58.
The Ohio Supreme Court remanded the cause to the trial court to
determine whether it has jurisdiction over claims made by the
participants who repaid money to the Department between April 6 and
Sept. 28, 2007. Based on its disposition of the Department's first
proposition of law and the remand to the trial court for it to
consider the remaining unnamed Plaintiffs' claims, the Ohio Supreme
Court need not address the Department's second proposition of law.
The Ohio Supreme Court reversed the judgment of the Eighth District
Court of Appeals, and remanded the cause to the trial court for
further consideration.
A full-text copy of the Ohio Supreme Court's June 30, 2020 Order is
available at https://bit.ly/2HcfQXt from Leagle.com.
Dworken & Bernstein Co., L.P.A., and Patrick J. Perotti --
pperotti@dworkenlaw.com; Garson Johnson, L.L.C., and James A.
Deroche; and McCarthy, Lebit, Crystal & Liffman Co., L.P.A., and
Christian R. Patno -- crp@mccarthylebit.com -- for appellees.
Dave Yost, Attorney General, Benjamin M. Flowers, State Solicitor,
Michael J. Hendershot, Chief Deputy Solicitor, and Henry G. Appel,
Assistant Attorney General, for appellant.
PANERA LLC: Tabler Files Voluntary Dismissal Notice of Class Claims
-------------------------------------------------------------------
Brianna Tabler has filed with the U.S. District Court for the
Northern District of California a notice of her voluntary dismissal
of claims against Panera LLC in the case, BRIANNA TABLER,
Plaintiff, v. PANERA LLC, Defendant, Case No. 19-CV-01646-LHK (N.D.
Cal.). The Notice is available at https://bit.ly/2SXTwni from
PacerMonitor.com.
Tabler filed the voluntary dismissal notice a month after Judge
Lucy H. Koh granted the Defendant's motion to dismiss the Tabler
case with leave to amend, a copy of which June 2020 Order is
available at https://bit.ly/3nTbt4G from Leagle.com.
Tabler is a citizen of Santa Clara County, California. Defendant
Panera is a limited liability company that was formed under the
laws of New York and maintains headquarters in New York City. The
Defendant manufactures, markets, and distributes sandwiches, baked
goods, and other prepared foods, including the "Whole Grain Bagel"
and "Whole Grain Bread," in retail outlets in California.
The Plaintiff alleges that the Defendant falsely and deceptively
labels and markets the Products as "100% clean." The Plaintiff
argues that the Products contain the residue of glyphosate, a
synthetic chemical.
The Plaintiff purchased Defendant's Whole Grain Bagel, as well as
other unspecified Products, at unspecified times during the class
period from three different retail outlets located in California.
The Plaintiff alleges that in deciding to make these purchases, she
saw and believed in-store signage representing that all of the
foods sold there were '100% clean.'
The Plaintiff filed the instant putative class action complaint
against the Defendant and two related entities in March 2019. The
complaint alleges causes of action under: (1) California's
Consumers Legal Remedies Act ("CLRA"); (2) California's False
Advertisement Law ("FAL"); and (3) California's Unfair Competition
Law ("UCL"). The Plaintiff filed a notice of voluntary dismissal
of the two related entities in May 2019. Thus, the Defendant is
the only remaining defendant in the instant case. The complaint
was amended in November 2019.
In her June 2020 Order, Judge Koh concluded that the First Amended
Complaint (FAC) again failed to adequately plead reliance on
specific misstatements and that the FAC does not sufficiently plead
that the In re Tobacco II exception applies. Judge Koh also found
that Plaintiff has failed to meet the heightened pleading standard
of Federal Rules of Civil Procedure 9(b). The Plaintiff again
merely identifies a range of representative advertisements that she
alleges to be misleading, but she provides no indication of which
statements, if any, she herself relied upon before purchasing the
unspecified Products.
PIER 66 MARITIME: Torrez Sues Over Failure to Properly Pay Wages
----------------------------------------------------------------
MIGUEL HERREROS TORREZ, on behalf of himself, FLSA Collective
Plaintiffs and the Class v. PIER 66 MARITIME INC. and ANGELA
KREVEY, Case No. 1:20-cv-08285 (S.D.N.Y., Oct. 5, 2020), is brought
against the Defendants for their alleged corporate-wide policies
and practices that violate the Fair Labor Standards Act and the New
York Labor Law.
The Plaintiff alleges that the Defendants failed pay proper
compensation for all hours worked by its employees, including the
Plaintiff; failed to pay proper overtime; failed to pay proper
wages, including those due to time shaving; failed to provide its
employees with proper wage statements with every payment of wages;
and failed to properly provide wage notices at date of hiring and
annually.
Pier 66 Maritime Inc. operates a restaurant. Angela Krevey is an
owner and principal of the Corporate Defendant.[BN]
The Plaintiff is represented by:
C.K. Lee, Esq.
Anne Seelig, Esq.
LEE LITIGATION GROUP, PLLC
148 West 24th Street, 8th Floor
New York, NY 10011
Tel: 212-465-1188
Fax: 212-465-1181
POLARIS INDUSTRIES: Bid for Judgment in Liability Class Suit Denied
-------------------------------------------------------------------
Judge Wilhelmina M. Wright of the U.S. District Court for the
District of Minnesota denied the Plaintiffs' motion for entry of
judgment or, in the alternative, certification for interlocutory
appeal in In re Polaris Marketing, Sales Practices, and Products
Liability Litigation, Case No. 18-cv-0939 (WMW/DTS) (D. Minn.).
The Plaintiffs are individuals who, between approximately May 8,
2014 and Feb. 9, 2018, each purchased an off-road vehicle
manufactured by the Defendants. Defendants Polaris Industries,
Inc. and Polaris Sales Inc. design and manufacture off-road
vehicles and their component parts, including engines. The
Plaintiffs allege that a design defect, namely "excessive heat
defect," has caused numerous fires, severe injuries, and deaths.
In April 2018, the Plaintiffs commenced multiple putative
class-action lawsuits against the Defendants arising from the
alleged defects and fire hazards associated with the class
vehicles. U.S. Magistrate Judge David T. Schultz consolidated
these cases and appointed interim counsel to act on behalf of the
putative class. Magistrate Judge Schultz also ordered the
Plaintiffs to file a consolidated complaint, which they filed in
June 2018. The consolidated complaint alleged 54 counts against
the Defendants.
In March 2019, the Court granted in part and denied in part the
Defendants' motion to dismiss the Plaintiffs' consolidated
complaint. In doing so, the Court dismissed without prejudice the
claims asserted by seven of the Plaintiffs for lack of standing.
The Plaintiffs filed an amended consolidated complaint in May 2019,
adding new Plaintiffs, counts, and factual allegations pertaining
to the alleged vehicle defect. The Defendants moved for partial
dismissal of the Plaintiffs' amended consolidated complaint
arguing, among other things, that the Plaintiffs whose off-road
vehicles had not manifested the alleged defect lacked standing
under Article III of the United States Constitution.
In a Feb. 26, 2020 Order, the Court granted in part the Defendants'
motion to dismiss. As relevant in the matter, the Court concluded
that seven of the Plaintiffs (the Dismissed Plaintiffs) failed to
allege a particularized and actual injury in fact and, therefore,
the Dismissed Plaintiffs lacked Article III standing to pursue
their claims in federal court. Consequently, the Court dismissed
without prejudice the Dismissed Plaintiffs' claims.
The Plaintiffs now move for entry of judgment as to the Dismissed
Plaintiffs' claims or, in the alternative, an order certifying
those claims for interlocutory appeal. They also request a stay of
the case pending any interlocutory appeal that the Court
authorizes. The Defendants oppose the Plaintiffs' motion.
The U.S. Court of Appeals for the Eighth Circuit has identified the
following factors for district courts to consider when determining
whether a danger of hardship through delay exists: (1) the
relationship between the adjudicated and unadjudicated claims; (2)
the possibility that the need for review might or might not be
mooted by future developments in the district court; (3) the
possibility that the reviewing court might be obliged to consider
the same issue a second time; (4) the presence or absence of a
claim or counterclaim which could result in setoff against the
judgment sought to be made final; (5) miscellaneous factors such as
delay, economic and solvency considerations, shortening the time of
trial, frivolity of competing claims, expense, and the like.
The relationship between the adjudicated and unadjudicated claims
is the first factor. The Court dismissed the claims of the
Dismissed Plaintiffs for lack of standing but did not dismiss those
same claims as advanced by the Plaintiffs whose off-road vehicles
allegedly manifested the purported defect. Judge Wright finds that
although the dismissed claims and the non-dismissed claims involve
facts specific to each individual Plaintiff, many of the facts and
legal issues are identical or closely related. As such, there is
significant factual and legal overlap between the adjudicated and
unadjudicated claims in the matter. Piecemeal appellate review is
disfavored so as to further the efficient administration of justice
and to avoid wasted judicial resources. Because the immediate
entry of judgement likely would result in piecemeal appellate
review, the first factor weighs against the immediate entry of
judgment.
Turning to the second factor, Judge Wright finds that the
Plaintiffs present no argument as to this factor. The Defendants
contend that this factor weighs against immediate entry of judgment
because, if they prevail on the merits in the case, the Dismissed
Plaintiffs' standing arguments will be moot. Although the
possibility of the Defendants prevailing on the merits is purely
speculative, Judge Wright finds that the Defendants are correct
that such a result likely would moot the need for appellate review
of the Plaintiffs' standing arguments. Therefore, the second
factor also weighs against the immediate entry of judgment.
As for the third factor, Judge Wright finds that there is
substantial factual and legal overlap between the claims in the
case which weighs against granting the Plaintiffs' request for
immediate entry of judgment. Moreover, if the Plaintiffs were to
seek to amend their complaint to include additional Plaintiffs --
as they have already done once in the case -- it is possible that
the same legal and factual issues as to Article III standing will
present themselves again. As such, the risk of subsequent
appellate review involving the same issues weighs against the
immediate entry of judgment.
The fourth factor does not appear to be implicated by the case.
Therefore, it weighs in favor of the immediate entry of judgment.
Finally, because the Plaintiffs have not demonstrated a danger of
hardship or injustice that will result if the Dismissed Plaintiffs
are not permitted to immediately appeal the dismissal of their
claims, the fifth factor weighs against the immediate entry of
judgment.
In summary, all but one of the relevant factors weighs against
granting the extraordinary relief of entering immediate judgment on
the Dismissed Plaintiffs' claims. Accordingly, Judge Wright denied
the Plaintiffs' motion for entry of judgment under Rule 54(b), Fed.
R. Civ. P.
The Plaintiffs argue, in the alternative, that the Court's Feb. 26,
2020 Order dismissing the Dismissed Plaintiffs' claims for lack of
standing should be certified for interlocutory appeal. Judge
Wright holds that the Plaintiffs have not established that
certification for interlocutory appeal under 28 U.S.C. Section
1292(b) is permissible in the case. Accordingly, their alternative
motion for certification for interlocutory appeal is denied. In
light of this conclusion, the Plaintiffs' request to stay the case
pending any interlocutory appeal is denied as moot.
Based on the foregoing analysis and all the files, records and
proceedings in the case, Judge Wright denied the Plaintiffs' motion
for entry of judgment or, in the alternative, certification for
interlocutory appeal.
A full-text copy of the District Court's June 30, 2020 Memorandum
Opinion & Order is available at https://bit.ly/2FABjZY from
Leagle.com.
PORTLAND GENERAL: Rosen Law Firm Reminds of November 2 Deadline
---------------------------------------------------------------
Rosen Law Firm, a global investor rights law firm, on Sept. 14
disclosed that it has filed a class action lawsuit on behalf of
purchasers of the securities of Portland General Electric Company
between April 24, 2020 and August 24, 2020, inclusive (the "Class
Period"). The lawsuit seeks to recover damages for PGE investors
under the federal securities laws.
To join the PGE class action, go to
http://www.rosenlegal.com/cases-register-1938.htmlor call Phillip
Kim, Esq. toll-free at 866-767-3653 or email pkim@rosenlegal.com or
cases@rosenlegal.com for information on the class action.
NO CLASS HAS YET BEEN CERTIFIED IN THE ABOVE ACTION. UNTIL A CLASS
IS CERTIFIED, YOU ARE NOT REPRESENTED BY COUNSEL UNLESS YOU RETAIN
ONE. YOU MAY RETAIN COUNSEL OF YOUR CHOICE. YOU MAY ALSO REMAIN AN
ABSENT CLASS MEMBER AND DO NOTHING AT THIS POINT. AN INVESTOR'S
ABILITY TO SHARE IN ANY POTENTIAL FUTURE RECOVERY IS NOT DEPENDENT
UPON SERVING AS LEAD PLAINTIFF.
According to the lawsuit, defendants throughout the Class Period
made false and/or misleading statements and/or failed to disclose
that: (1) PGE downplayed risks with its trading activity in
wholesale electricity markets; (2) PGE's wholesale energy trading
activity would result in at least $127 million of realized and
unrealized losses; (3) as a result, PGE would need to significantly
cut its per-share guidance; (4) as opposed to defendants'
statements, PGE was not focused on and achieving low operating
expenses; (5) PGE had inadequate disclosure controls and procedures
and internal control over financial reporting; and (6) as a result,
defendants' public statements were materially false and/or
misleading at all relevant times. When the true details entered the
market, the lawsuit claims that investors suffered damages.
A class action lawsuit has already been filed. If you wish to serve
as lead plaintiff, you must move the Court no later than November
2, 2020. A lead plaintiff is a representative party acting on
behalf of other class members in directing the litigation. If you
wish to join the litigation, go to
http://www.rosenlegal.com/cases-register-1938.htmlor to discuss
your rights or interests regarding this class action, please
contact Phillip Kim, Esq. of Rosen Law Firm toll free at
866-767-3653 or via e-mail at pkim@rosenlegal.com or
cases@rosenlegal.com.
Rosen Law Firm represents investors throughout the globe,
concentrating its practice in securities class actions and
shareholder derivative litigation. Rosen Law Firm was Ranked No. 1
by ISS Securities Class Action Services for number of securities
class action settlements in 2017. The firm has been ranked in the
top 3 each year since 2013. Rosen Law Firm has achieved the largest
ever securities class action settlement against a Chinese Company.
Rosen Law Firm's attorneys are ranked and recognized by numerous
independent and respected sources. Rosen Law Firm has secured
hundreds of millions of dollars for investors.
Contact Information:
Laurence Rosen, Esq.
Phillip Kim, Esq.
The Rosen Law Firm, P.A.
275 Madison Avenue, 40th Floor
New York, NY 10016
Tel: (212) 686-1060
Toll Free: (866) 767-3653
Fax: (212) 202-3827
lrosen@rosenlegal.com
pkim@rosenlegal.com
cases@rosenlegal.com
www.rosenlegal.com [GN]
PROGRESSIVE DIRECT: Stanikzy Suit Seeks to Certify Insureds Class
-----------------------------------------------------------------
In the class action lawsuit captioned as AMEENJOHN STANIKZY, v.
PROGRESSIVE DIRECT INSURANCE COMPANY, Case No. 2:20-cv-00118-BJR
(W.D. Wash.), the Plaintiff asks the Court for an order certifying
a class of:
"all Progressive insureds with Washington first party
personal line policies issued in Washington State, who
received compensation for the total loss of their own
vehicles under their First Party (Comprehensive, Collision,
and UIM) coverages, and who received a total loss valuation
from Mitchell based upon the value of comparable vehicles
which took a deduction/adjustment for "Projected Sold
Adjustment."
Excluded from the Class would be (a) the assigned Judge, the
Judge's staff and family, and Progressive employees, (b)
claims for accidents with dates of loss occurring before
January 24, 2014, (c) claims on "non-owned" (borrowed or
rented) vehicles; (d) claims where the 7 insured submitted
written evidence supporting a different valuation, and the
amount of that different valuation submitted by the insured
was paid by Progressive or valuation paid was determined
using the appraisal clause.
This case challenges Progressive's consistent and uniform claims
practice of paying vehicle total loss claims using computer
generated reports from Mitchell; "Market Survey Reports" (MSR
Reports) which took an alleged substantial but undisclosed,
unauthorized, unsupported, and inapplicable deduction from the
amount to be paid on the loss for purported "projected sold
adjustment" (PSA). The Plaintiff alleges that the PSA deduction on
MSR Reports categorically violates WAC 284-30-391(4)(b) and (5).
Progressive Direct Insurance Company operates as an insurance
company. The Company underwrites auto, fire, marine, and casualty
insurance. Progressive Direct Insurance Company conducts its
business in the United States.
A copy of the Plaintiff's motion for class certification is
available from PacerMonitor.com at https://bit.ly/32MtwB6 at no
extra charge.[CC]
The Plaintiff is represented by:
Stephen M. Hansen, Esq.
LAW OFFICES OF STEPHEN M. HANSEN, PS
1821 Dock Street, Suite 103
Tacoma, WA 98402
Telephone: (253) 302-5955
Facsimile: (253) 301-1147
- and -
Scott P. Nealey, Esq.
LAW OFFICE OF SCOTT P. NEALEY
71 Stevenson Street, Suite 400,
San Francisco, CA 94105
Telephone: (415) 231-5311
Facsimile: (415) 231-5313
E-mail: snealey@nealeylaw.com
QUTOUTIAO INC: Oct. 19 Class Action Lead Plaintiff Deadline Set
---------------------------------------------------------------
Rosen Law Firm, a global investor rights law firm, on Sept. 14
announced the filing of a class action lawsuit on behalf of
purchasers of the securities of Qutoutiao Inc. (NASDAQ: QTT): (1)
pursuant to and/or traceable to the Company's September 2018
initial public offering ("IPO"); and/or (2) between September 14,
2018 and July 15, 2020, inclusive (the "Class Period"). The lawsuit
seeks to recover damages for Qutoutiao investors under the federal
securities laws.
To join the Qutoutiao class action, go to
http://www.rosenlegal.com/cases-register-1934.htmlor call Phillip
Kim, Esq. toll-free at 866-767-3653 or email pkim@rosenlegal.com or
cases@rosenlegal.com for information on the class action.
NO CLASS HAS YET BEEN CERTIFIED IN THE ABOVE ACTION. UNTIL A CLASS
IS CERTIFIED, YOU ARE NOT REPRESENTED BY COUNSEL UNLESS YOU RETAIN
ONE. YOU MAY RETAIN COUNSEL OF YOUR CHOICE. YOU MAY ALSO REMAIN AN
ABSENT CLASS MEMBER AND DO NOTHING AT THIS POINT. AN INVESTOR'S
ABILITY TO SHARE IN ANY POTENTIAL FUTURE RECOVERY IS NOT DEPENDENT
UPON SERVING AS LEAD PLAINTIFF.
According to the lawsuit, defendants throughout the Class Period
made false and/or misleading statements and/or failed to disclose
that: (1) Qutoutiao replaced its advertising agent with a related
party, thereby bypassing third-party oversight of the content and
quality of the advertisements; (2) the Company placed
advertisements on its mobile app for products whose claims could
not be substantiated and thus were considered false advertisements
under applicable regulations; (3) as a result, the Company would
face increasing regulatory scrutiny and reputational harm; (4) as a
result, the Company's advertising revenue was reasonably likely to
decline; and (5) as a result of the foregoing, Defendants' positive
statements about the Company's business, operations, and prospects,
were materially misleading and/or lacked a reasonable basis.
A class action lawsuit has already been filed. If you wish to serve
as lead plaintiff, you must move the Court no later than October
19, 2020. A lead plaintiff is a representative party acting on
behalf of other class members in directing the litigation. If you
wish to join the litigation, go to
http://www.rosenlegal.com/cases-register-1934.htmlor to discuss
your rights or interests regarding this class action, please
contact Phillip Kim, Esq. of Rosen Law Firm toll free at
866-767-3653 or via e-mail at pkim@rosenlegal.com or
cases@rosenlegal.com.
Rosen Law Firm represents investors throughout the globe,
concentrating its practice in securities class actions and
shareholder derivative litigation. Rosen Law Firm was Ranked No. 1
by ISS Securities Class Action Services for number of securities
class action settlements in 2017. The firm has been ranked in the
top 3 each year since 2013. Rosen Law Firm has achieved the largest
ever securities class action settlement against a Chinese Company.
Rosen Law Firm's attorneys are ranked and recognized by numerous
independent and respected sources. Rosen Law Firm has secured
hundreds of millions of dollars for investors. Attorney
Advertising. Prior results do not guarantee a similar outcome.
Contact Information:
Laurence Rosen, Esq.
Phillip Kim, Esq.
The Rosen Law Firm, P.A.
275 Madison Avenue, 40th Floor
New York, NY 10016
Tel: (212) 686-1060
Toll Free: (866) 767-3653
Fax: (212) 202-3827
lrosen@rosenlegal.com
pkim@rosenlegal.com
cases@rosenlegal.com
www.rosenlegal.com [GN]
REDSTONE LLP: Faces Ibarra FLSA Suit Over Unpaid Overtime Wages
---------------------------------------------------------------
MARIA IBARRA, and all others similarly situated under U.S.C. 216(B)
v. REDSTONE LLP d/b/a SWIRL BAKERY and CHRIS NORWOOD, Case No.
4:20-cv-00760 (E.D. Tex., Oct. 5, 2020), is brought against the
Defendants for their alleged overtime wage violation under the Fair
Labor Standards Act.
The Plaintiff worked for the Defendant as a bakery worker from July
2013 to the present.
According to the complaint, the Plaintiff worked an average of
approximately 50 to 90 hours per week. However, instead of paying
the Plaintiff the extra halftime overtime rate for hours worked
above 40 hours in a week as required by the FLSA, the Defendant
paid straight time only.
The Plaintiff asserts that the Defendants' failure to pay overtime
wages had caused damage to the Plaintiff and constitutes a breach
of contract under the Texas law.
Redstone LLP, d/b/a Swirl Bakery, operates a bakeshop. Chris
Norwood is an officer, owner, and/or manager of Redstone's
bakery.[BN]
The Plaintiff is represented by:
Thomas J. Urquidez, Esq.
URQUIDEZ LAW FIRM, LLC
5440 Harvest Hill, Suite 234
Dallas, TX 75230
Tel: 214-420-3366
Fax: 214-2069802
E-mail: tom@tru-legal.com
RHM LLC: Faces Hopkins FLSA Suit Over Workers' Misclassification
----------------------------------------------------------------
CHRISTOPHER HOPKINS, on behalf of himself and all other similarly
situated persons, known and unknown v. RHM, LLC a/k/a RHM STAFFING
SOLUTIONS, Case No. 1:20-cv-05924 (N.D. Ill., Oct. 5, 2020), arises
from the Defendant's alleged violation of the Fair Labor Standards
Act, the Illinois Minimum Wage, and the Illinois Wage Payment and
Collection Act.
The Plaintiff, who was employed by and worked for the Defendant as
a recruiter from October 14, 2019, through March 9, 2020, asserts
that the Defendant improperly classified him and other similarly
situated employees as exempt from the maximum hours provisions of
the FLSA and/or IMWL. As a result, they did not receive overtime
compensation at one and one-half times their regular rate of pay
for all the hours they worked in excess of 40 in an individual
workweek.
RHM, LLC, a/k/a RHM Staffing Solutions, is a staffing agency.[BN]
The Plaintiff is represented by:
Alejandro Caffarelli, Esq.
Alexis D. Martin, Esq.
CAFFARELLI & ASSOCIATES LTD.
224 South Michigan Ave., Suite 300
Chicago, IL 60604
Tel: (312) 763-6880
E-mail: acaffarelli@caffarelli.com
amartin@caffarelli.com
SALT RIVER: Seeks 9th Circuit Review of Decision in Ellis Suit
--------------------------------------------------------------
Defendant Salt River Project Agricultural Improvement and Power
District filed an appeal from the District Court's Order entered in
the lawsuit styled William Ellis, et al. v. Salt River Project,
Case No. 2:19-cv-01228-SMB, in the U.S. District Court for the
District of Arizona (Phoenix).
On Jan. 10, 2020, District Judge Susan M. Brnovich entered an order
granting the Defendant Salt River Project Agricultural Improvement
and Power District's Motion to Dismiss and Request for Judicial
Notice.
The appellate case is captioned as WILLIAM ELLIS, ROBERT DILL,
EDWARD RUPPRECHT, and ROBERT GUSTAVIS, individually and on behalf
of all others similarly situated v. SALT RIVER PROJECT AGRICULTURAL
IMPROVEMENT AND POWER DISTRICT, Case No. 20-15476, in the United
States Court of Appeals for the Ninth Circuit.
As previously reported in the Class Action Reporter, the Plaintiffs
seek redress for violations of the Sherman Anti-trust Law and
Arizona law.
Salt River Project provides retail electricity to customers in its
designated territory within the state of Arizona. The Plaintiffs
allege that Salt River engaged in anticompetitive conduct designed
to eliminate solar energy competition by implementing a
discriminatory pricing scheme by unfairly penalizing those
consumers with solar energy systems through the imposition of
higher electricity rates, while consumers without solar energy
systems are subject to different, lower rates.[BN]
The Plaintiffs-Appellees are represented by:
Daniel E. Gustafson, Esq.
Daniel C. Hedlund, Esq.
GUSTAFSON GLUEK PLLC
120 South 6th Street, Suite 2600
Minneapolis, MN 55402
Telephone: 612 333-8844
- and -
Hart L. Robinovitch, Esq.
ZIMMERMAN REED
14646 N. Kierland Blvd.
Scottsdale, AZ 85254
The Defendant-Appellant is represented by:
Christopher Babbitt, Esq.
Daniel Volchok, Esq.
WILMERHALE
1875 Pennsylvania Avenue, NW
Washington, DC 20006
Telephone: 202 663-6681
- and -
Eric Dell Gere, Esq.
JENNINGS STROUSS & SALMON, PLC
One East Washington Street
Phoenix, AZ 85004-2554
Telephone: 602-262-5944
SHOE SENSATION: Court Issues Show Cause Order in Williams ADA Suit
------------------------------------------------------------------
In the case, PAMELA WILLIAMS, on behalf of herself and all others
similarly situated, Plaintiffs, v. SHOE SENSATION, INC., Defendant,
Case No. 20-cv-2301 (LJL) (S.D. N.Y.), Judge Lewis J. Liman of the
U.S. District Court for the Southern District of New York ordered
Williams to show cause why her case should not be dismissed for
failure to prosecute.
Williams brought the putative class action against Shoe Sensation,
alleging that Shoe Sensation violated the Americans with
Disabilities Act by failing to make its website accessible to blind
and visually impaired consumers. On June 30, 2020, Shoe Sensation
filed a motion to dismiss, arguing that the Court lacks subject
matter jurisdiction and that Williams' complaint fails to state a
claim.
On July 15, 2020, Williams requested a thirty-day extension to
respond to the motion to dismiss, which the Court granted.
However, Williams failed to file her response by the new deadline
of Aug. 14, 2020. On Aug. 21, 2020, Shoe Sensation filed a reply,
asking the Court to dismiss the case for the reasons outlined in
its original memorandum and because Williams had abandoned her
case.
Williams must file by Oct. 19, 2020 or risk dismissal of the case.
A full-text copy of the Court's Sept. 2, 2020 Order is available at
https://tinyurl.com/yyk5bvdn from Leagle.com.
SIMON PROPERTY: Summary Judgment in Sharabani Class Suit Affirmed
-----------------------------------------------------------------
In the case, LEIGH SHARABANI, ETC., Appellant, v. SIMON PROPERTY
GROUP, INC., Defendant, METABANK, Respondent, Case No. 2017-05348,
Index No. 15224/09 (N.Y. App. Div.), the Appellate Division of the
Supreme Court of New York, Second Department, affirmed the order of
the Supreme Court, Nassau County, entered April 18, 2017.
The Plaintiff commenced the putative class action alleging that, in
May 2007, she received a gift card for her birthday, which was
issued by the Defendant MetaBank and marketed and promoted by the
Defendant Simon. The gift card had an initial balance of $40 and
an expiration date of April 2009. The Plaintiff used the gift card
to make purchases in January 2008 and January 2009, leaving an
available balance of $17.71. On July 22, 2009, the Plaintiff
attempted to make a purchase using the gift card, but she was
advised that a $15 renewal fee would be assessed, leaving an
available balance of $2.71, which would have been insufficient to
pay for her intended purchase. She did not renew the gift card.
In the amended complaint, the Plaintiff asserted six causes of
action. On a prior appeal, the Court determined that the Supreme
Court had properly granted that branch of the Defendants' motion
which was pursuant to CPLR 3211(a)(2) to dismiss so much of the
breach of contract cause of action as was premised on the Abandoned
Property Law, but erred in granting dismissal of the remainder of
that cause of action and the other causes of action asserted in the
amended complaint as preempted by federal law. The matter was
remitted to the Supreme Court, Nassau County, for a determination,
on the merits, of the remaining branches of the Defendants'
motion.
Following the Supreme Court's determination upon remittitur, the
Plaintiff served a second amended complaint. The Plaintiff
thereafter simultaneously moved for partial summary judgment on the
issue of liability on the breach of contract cause of action and
for class certification. The Defendants separately cross-moved for
summary judgment dismissing the second amended complaint insofar as
asserted against each of them.
In an order entered April 18, 2017, the Supreme Court denied the
Plaintiff's motion for partial summary judgment, granted the
Defendants' cross motions for summary judgment dismissing the
second amended complaint and denied, as academic, the Plaintiff's
motion for class certification. The Plaintiff appeals, limiting
her arguments to the breach of contract cause of action asserted
against MetaBank and the denial, as academic, of her motion for
class certification.
There is no dispute that a contract was formed between the
Plaintiff and MetaBank, the terms of which are set forth on the
sleeve which accompanied the gift card. The gift card cardholder
agreement states that the gift card may not be refunded or
exchanged for cash or credit. It imposes a $15 Expired Card Fee to
replace an expired gift card. The agreement further states that,
upon expiration, the gift card would be closed and any unused
balance will be handled according to applicable law. The agreement
provides a phone number through which one may request a new gift
card containing the remaining balance, minus the Expired Card Fee.
The Plaintiff contends that, upon the expiration of her gift card,
the "applicable law" required MetaBank to return the unused balance
to her, upon her demand, without payment of any fee. She cites
precedent concerning demand deposit accounts, although she also
contends that the unused balance is similar to a deposit account
such as a certificate of deposit.
The Appellate Court agrees with the Supreme Court that the
Plaintiff advances an unreasonable interpretation of the gift card
cardholder agreement. The unused gift card balance is not a demand
deposit account. Insofar as the Plaintiff analogizes to a
certificate of deposit, she concedes that such deposit accounts may
limit access to the funds in accordance with their terms. The
terms of the gift card cardholder agreement prohibit cash refunds.
Contrary to her contention, the prohibition is not temporally
limited to the period prior to expiration of the gift card.
Moreover, the regulations of the Office of Thrift Supervision in
effect at the time her gift card was issued, permitted national
thrifts to issue stored value giftcards with expiration dates and
administrative fees.
Therefore, the Appellate Court agrees with the Supreme Court's
determination that the agreement unambiguously provides that the
Plaintiff's gift card is not redeemable for cash, was subject to
expiration, and is subject to a $15 Expired Card Fee in order for
the cardholder to obtain any unused balance post-expiration.
Accordingly, Appellate Court agrees with the Supreme Court's
determination denying that branch of the Plaintiff's motion which
was for partial summary judgment on the issue of liability on the
breach of contract cause of action insofar as asserted against
MetaBank and granting that branch of MetaBank's cross motion which
was for summary judgment dismissing the breach of contract cause of
action insofar as asserted against it.
In light of its determination, the Appellate Court Court also
agrees with the Supreme Court's determination denying, as academic,
the Plaintiff's motion for class certification.
For these reasons, the Appellate Court affirmed the order insofar
as appealed from, with costs. A full-text copy of the Sept. 2, 2020
Decision & Order is available at https://tinyurl.com/y2nr4wzu from
Leagle.com.
Irwin Popkin, Melville, NY (Bromberg Law Office, P.C. [Brian L.
Bromberg], and M. Scott Barrett -- sab@sbarrettlaw.com -- of
counsel), for appellant.
Bryan Cave LLP, New York, NY (Christine Cesare --
cbcesare@bclplaw.com -- Megan Pierson, and Jonathan E. Ginsberg --
jon.ginsberg@bclplaw.com -- of counsel), for respondent.
SODASTREAM USA: Paguada Sues in S.D. New York Over ADA Violation
----------------------------------------------------------------
A class action lawsuit has been filed against SodaStream USA, Inc.
The case is styled as Dilenia Paguada, on behalf of herself and all
others similarly situated v. SodaStream USA, Inc., Case No.
1:20-cv-08479 (S.D.N.Y., Oct. 12, 2020).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
SodaStream USA manufactures syrups used for soft drinks. The
Company offers sparkling water makers, cylinders, and carbonating
bottles.[BN]
The Plaintiff is represented by:
Mars Khaimov, Esq.
10826 64th Avenue, 2nd Floor
Forest Hills, NY 11375
Phone: (917) 915-7415
Email: marskhaimovlaw@gmail.com
SPAIN 92: Criollo Seeks Conditional Class Certification
-------------------------------------------------------
In the class action lawsuit captioned as RAUL CRIOLLO, individually
and on behalf of all others similarly situated, v. SPAIN 92, INC.,
SERGIO SEIJAS, and MANOLO [LAST NAME UNKNOWN], Case No.
3:19-cv-18134-MAS-DEA (D.N.J.), the Plaintiff asks the Court for an
order granting conditional class certification, court-authorized
notice pursuant to the Fair Labor Standards Act, and expedited
discovery, as well as such other and further relief as the Court
deems just and proper.
Spain 92 is a restaurant specializing creating authentic Spanish
cuisine.
A copy of the Plaintiff's motion for conditional certification is
available from PacerMonitor.com at https://bit.ly/2FCCwjz at no
extra charge.[CC]
The Plaintiff is represented by:
Nicole Grunfeld, Esq.
KATZ MELINGER PLLC
280 Madison Avenue, Suite 600
New York, NY 10016
Telephone: (212) 460-0047
Facsimile: (212) 428-6811
E-mail: ndgrunfeld@katzmelinger.com
SPECTRUM BRANDS: Court Narrows Claims in Winkworth Class Suit
-------------------------------------------------------------
In the case, BRUCE WINKWORTH and MARCIA BOTELHO, Individually, on
behalf of themselves and on behalf of all others similarly
situated, Plaintiffs, v. SPECTRUM BRANDS, INC., Defendant, Civil
Action No. 19-1011 (W.D. Pa.), Magistrate Judge Patricia L. Dodge
of the U.S. District Court for the Western District of Pennsylvania
granted in part and denied in part Spectrum Brands' motion to
dismiss the Complaint for failure to state a claim.
Winkworth and Botelho commenced the class action lawsuit to seek
redress with respect to an allegedly defective and dangerous
condition present in Remington Hot Rollers that were warranted,
advertised, distributed, and sold by Defendant Spectrum Brands.
The Plaintiffs allege that due to a latent defect, the Hot Rollers
heat to unreasonably unsafe temperatures when operated as
instructed and, therefore, expose consumers to dangerous contact
with their skin.
The Complaint alleges claims for breach of express warranty, breach
of the implied warranty of merchantability (Count I); breach of
express warranty (Count II); violation of the Magnuson-Moss
Consumer Products Warranty Act ("MMWA") (Count III); negligence
(Count IV); and negligent failure to warn (Count V).
The Plaintiffs assert these claims on their own behalf and on
behalf of two putative classes: (1) a nationwide declaratory
judgment/injunctive relief class, and (2) a Pennsylvania-only
damages class. Specifically excluded from both classes are claims
for personal injury and wrongful death.
The Plaintiffs commenced the lawsuit in the Court of Common Pleas
of Jefferson County, Pennsylvania, in July 2019. Spectrum
subsequently removed the case to the Pennsylvania District Court
based on the Class Action Fairness Act (CAFA) and now seeks
dismissal of the Plaintiffs' Complaint under Federal Rule of Civil
Procedure 12(b)(6) for failure to state a claim upon which relief
may be granted.
In its motion to dismiss, Spectrum argues that the Plaintiffs'
breach of express warranty claim must be dismissed because the
alleged latent defect in the Hot Rollers is a design defect, but
its limited warranty only warrants against defects due to faulty
material or workmanship. It also asserts that the Plaintiffs'
claims for breach of express and implied warranties fail because
Spectrum satisfied its obligations under those warranties by
offering Botelho both a replacement product and a refund.
With respect to the MMWA claim, Spectrum maintains that because the
Plaintiffs' causes of action for breach of express and implied
warranties fail to state a claim upon which relief may be granted,
their MMWA claim, which is based on a breach of those warranties,
necessarily fails as well.
In seeking dismissal of the Plaintiffs' claims for negligence and
negligent failure to warn, Spectrum contends that those claims are
barred by the economic loss rule. Finally, Spectrum asserts that
the Plaintiffs' request for injunctive relief should be stricken
from the Complaint because they lack standing to seek such relief.
As to the Plaintiffs' express warranty claim, based upon the
Complaint and its exhibits, Magistrate Judge Dodge finds that it
appears that Botelho was offered a replacement product by Spectrum
and rejected it. That would satisfy Spectrum's warranty obligations
and compel dismissal of the claim. At the same time, Botelho's May
2018 email suggests that it was not the first time that she
notified Spectrum about the alleged defect. The parties' prior
communications, if any, and their potential relevance to the claim
are not set forth in the Complaint. Therefore, Spectrum's motion
to dismiss the express warranty claim will be granted without
prejudice. The Plaintiffs will be granted leave to amend the claim
in the event that they can allege facts that would support a claim
that Spectrum failed to comply with the terms of the limited
warranty as it relates to the Plaintiffs' individual claim(s).
As to the Plaintiffs' breach of implied warranty of merchantability
claim, the Judge finds that Spectrum's fundamental assertion that
it offered a refund which Botelho did not accept is not clear from
the parties' email exchange. As an initial matter, it appears that
Spectrum asked Botelho if she would be interested in a refund after
inquiring whether she would be seeking medical attention. Even if
this statement is construed as an offer for a refund, the email
exchange that is part of the Complaint does not conclusively
reflect that Botelho definitively understood it as such and
rejected it, or that she was otherwise made whole. Rather, Botelho
updated Spectrum on her alleged injury and Spectrum advised her
that her claim was being forwarded to its insurance company. This
suggests that the focus of that particular exchange may have been
on Botelho's injury as opposed to addressing a warranty claim.
Further, the Complaint does not allege that Spectrum actually sent
or attempted to send Botelho a refund that was rejected.
Therefore, Spectrum's argument fails, at least at this stage.
As to the Plaintiffs have alleged a plausible MMWA claim, Spectrum
argues that because the Plaintiffs have failed to state a viable
state law claim for a breach of express or implied warranties,
their derivative MMWA claim necessarily fails and must also be
dismissed. Because the Judge has determined that the Plaintiffs
have adequately alleged a claim for breach of an implied warranty,
however, Spectrum's motion to dismiss must be denied.
As to the Plaintiffs' negligence and negligent failure to warn
claims are barred by the economic loss rule, Spectrum's legal
duties to the Plaintiffs and other purchasers of Hot Rollers are
contract-based. The Plaintiffs do not allege any facts in their
Complaint from which the Judge could conclude that Spectrum had
duties to them that are not encompassed in these express and
implied warranties, or that Spectrum has other duties that are
grounded in tort. Therefore, as alleged in their Complaint, any
duty Spectrum owes to the Plaintiffs regarding the condition of the
Hot Rollers is governed solely by the express and implied
warranties. Because no independent legal duty apart from those
warranties exists, the Judge finds that the Plaintiffs' negligence
and negligent failure to warn claims are barred by the economic
loss rule and must be dismissed.
Turning to the Plaintiffs lack standing to seek injunctive relief,
the Judge finds that the Plaintiffs have not alleged that they will
sustain future injury. Moreover, given their allegations that the
Hot Rollers are defective and their communications with Spectrum,
it is unreasonable to assume that the Plaintiffs would sustain
future injury by repurchasing Hot Rollers. Indeed, the law accords
people the dignity of assuming that they act rationally, in light
of the information they possess. Because the Plaintiffs have not
established any reasonable likelihood of future injury, they lack
standing to seek injunctive relief against Spectrum. Accordingly,
the Plaintiffs' request for injunctive relief must be dismissed.
Finally, other than the allegation that Plaintiff Winkworth
purchased Hot Rollers, the Complaint includes no factual
allegations that appear to support any of the claims asserted
therein. For example, he is not alleged to be the owner of the Hot
Rollers, to have used the product, have had knowledge of any
alleged defects, placed Spectrum on notice of alleged defects or
communicated with Spectrum in any way. Therefore, Spectrum could
not have fulfilled any express or implied warranty obligation that
it might have had to him. Moreover, given the measure of damages
for breach of warranty, it does not appear that both the Plaintiffs
cannot not recover such damages from Spectrum. As such, the claims
of Plaintiff Winkworth are dismissed without prejudice.
For the reasons discussed, Magistrate Judge Dodge granted in part
and denied in part Spectrum's motion to dismiss.
A full-text copy of the District Court's June 30, 2020 Memorandum
Opinion is available at https://bit.ly/31cDeLE from Leagle.com.
STAAR SURGICAL: Kirby McInerney Reminds of October 19 Deadline
--------------------------------------------------------------
The law firm of Kirby McInerney LLP reminds investors that a class
action lawsuit has been filed in the U.S. District Court for the
Central District of California on behalf of those who acquired
STAAR Surgical Company ("STAAR" or the "Company") (NASDAQ: STAA)
securities during the period from February 26, 2020 through August
10, 2020 (the "Class Period"). Investors have until October 19,
2020 to apply to the Court to be appointed as lead plaintiff in the
lawsuit.
According to the Complaint, the Company made false and misleading
statements to the market. STAAR is the subject of a report by
investment analyst J Capital which alleges that the Company has
overstated its sales in China by at least one-third, "meaning all
of the Company's $14 mln in 2019 profit is fake." The report, based
on extensive interviews and research, states that the Company
reports fake sales numbers and then marks up marketing costs in a
scheme to hide "phantom" revenue. Based on this news, shares of
STAAR fell by 6% on August 11, 2020, damaging investors.
If you acquired STAAR securities, have information, or would like
to learn more about these claims, please contact Thomas W. Elrod of
Kirby McInerney at 212-371-6600, by email at
investigations@kmllp.com, or by filling out this contact form, to
discuss your rights or interests with respect to these matters
without any cost to you.
Kirby McInerney is a New York-based plaintiffs' law firm
concentrating in securities, antitrust, and whistleblower
litigation. The firm's efforts on behalf of shareholders in
securities litigation have resulted in recoveries totaling billions
of dollars. Additional information about the firm can be found at
Kirby McInerney's website: www.kmllp.com.
This press release may be considered Attorney Advertising in some
jurisdictions under the applicable law and ethical rules.
Contacts
Kirby McInerney LLP
Thomas W. Elrod, Esq., (212) 371-6600
investigations@kmllp.com
www.kmllp.com [GN]
SUBARU OF AMERICA: Anderson Suit Moved From Hawaii to N.D. Alabama
------------------------------------------------------------------
The case styled ROMAN ANDERSON, individually and on behalf of all
others similarly situated v. SUBARU OF AMERICA, INC.; SUBARU CORP.;
DENSO INTERNATIONAL AMERICA, INC.; and DENSO CORP., Case No.
1:20-cv-00290, was transferred from the U.S. District Court for the
District of Hawaii to the U.S. District Court for the Northern
District of Alabama on October 9, 2020.
The Clerk of Court for the Northern District of Alabama assigned
Case No. 2:20-cv-01587-ACA to the proceeding.
The case arises from the Defendants' alleged violations of Hawaii's
Unfair Deceptive Acts and Practices Statute, breach of implied
warranty of merchantability, and breach of express warranty by
manufacturing and selling Subaru vehicles with defective Denso low
pressure fuel pumps and by failing to recall all affected
vehicles.
Subaru of America, Inc., is a distributor of Subaru's brand
vehicles in the United States, with its principal place of business
in Camden, New Jersey. Subaru Corp. is an automobile manufacturer
based in Tokyo, Japan.
Denso International America, Inc., is an automobile parts supplier
based in Southfield, Michigan. Denso Corp. is a global automotive
components manufacturer headquartered in Aichi Prefecture,
Japan.[BN]
The Plaintiffs are represented by:
Steven K. S. Chung, Esq.
Timothy E. Ho, Esq.
IMANAKA ASATO, LLLC
745 Fort Street Mall, 17th Floor
Honolulu, HI 96813
Telephone: (808) 521-9500
Facsimile: (808) 541-9050
E-mail: schung@imanaka-asato.com
tho@imanaka-asato.com
- and –
Timothy G. Blood, Esq.
Paula R. Brown, Esq.
Jennifer L. MacPherson, Esq.
BLOOD HURST & O'REARDON, LLP
501 West Broadway, Suite 1490
San Diego, CA 92101
Telephone: (619) 338-1100
Facsimile: (619) 338-1101
E-mail: tblood@bholaw.com
pbrown@bholaw.com
jmacpherson@bholaw.com
- and –
Courtney L. Davenport, Esq.
THE DAVENPORT LAW FIRM LLC
18805 Porterfield Way
Germantown, MD 20874
Telephone: (703) 901-1660
E-mail: courtney@thedavenportlawfirm.com
- and –
Michael T. Fraser, Esq.
THE FRASER LAW FIRM, P.C.
4120 Douglas Blvd., Suite 306-262
Granite Bay, CA 95746
Telephone: (888) 557-5115
Facsimile: (866) 212-8434
E-mail: mfraser@thefraserlawfirm.net
SUPERMONEY LLC: Faces Paguada ADA Class Suit in S.D. New York
-------------------------------------------------------------
A class action lawsuit has been filed against SuperMoney LLC. The
case is styled as Josue Paguada, on behalf of himself and all
others similarly situated v. SuperMoney LLC, Case No. 1:20-cv-08475
(S.D.N.Y., Oct. 12, 2020).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
SuperMoney is an online financial comparison platform that helps
consumers evaluate financial services.[BN]
The Plaintiff is represented by:
Mars Khaimov, Esq.
10826 64th Avenue, 2nd Floor
Forest Hills, NY 11375
Phone: (917) 915-7415
Email: marskhaimovlaw@gmail.com
TEVA PHARMA: Certification of Plan Beneficiaries Class Sought
-------------------------------------------------------------
In the class action lawsuit captioned as JERRY PINNELL, JEREMY
FERNANDEZ AND SHANE PERRILLOUX, individually and on behalf of all
others similarly situated, v. TEVA PHARMACEUTICALS USA, INC., BOARD
OF DIRECTORS OF TEVA PHARMACEUTICALS USA, INC., TEVA
PHARMACEUTICALS USA, INC. INVESTMENT COMMITTEE, and JOHN AND JANE
DOES 1-30, Case No. 2:19-cv-05738-MAK (E.D. Pa.), the Plaintiffs
Jerry Pinnell, Jeremy Fernandez and Shane Perrilloux ask the Court
for an order:
1. certifying the following class:
"all persons, except Defendants and their immediate family
members, who were participants in or beneficiaries of the
Plan, at any time between December 6, 2013, and June 28,
2019";
2. appointing themselves as representatives of the certified
Class; and
3. appointing Capozzi Adler, P.C., as Class Counsel.
Teva manufactures and markets generic pharmaceutical products. The
Company provides high-quality health-care by developing, producing
and marketing affordable generic, innovative and specialty
products, as well as active pharmaceutical ingredients.
A copy of the Plaintiffs' motion for class certification is
available from PacerMonitor.com at https://bit.ly/2RFHuhN at no
extra charge.[CC]
The Plaintiffs are represented by:
Mark K. Gyandoh, Esq.
Donald R. Reavey, Esq.
CAPOZZI ADLER, P.C.
312 Old Lancaster Road
Merion Station, PA 19066
Telephone: (610) 890-0200
E-mail: Markg@capozziadler.com
Donr@capozziadler.com
TRON FOUNDATION: C. Hardin Named Lead Plaintiff in Securities Suit
------------------------------------------------------------------
In the case, ALEXANDER CLIFFORD, et al., Plaintiffs, v. TRON
FOUNDATION, et al., Defendants, Case No. 20-CV-2804 (VSB) (S.D.
N.Y.), Judge Vernon S. Broderick of the U.S. District Court for the
Southern District of New York granted the motion of Movants Corey
Hardin, David Muhammad, and Chase Williams seeking: (1) appointment
as the Lead Plaintiffs; and (2) approval of the co-lead counsel.
Plaintiffs Clifford and Chase Williams commenced the securities
class action lawsuit against TRON, Justin Sun, TRON's co-founder,
and Zhiqiang (Lucien) Chen, a co-founder and former Chief
Technology Officer of TRON, for allegedly promoting, offering, and
selling an unregistered security called the TRX token through an
Initial Coin Offering ("ICO"). On April 3, 2020, the Plaintiffs
filed the class action complaint. They allege that since at least
June 26, 2017, the Defendants have been promoting, offering, and
selling an unregistered security called the TRX token.
The Defendants issued a "whitepaper" to investors describing the
TRX tokens' utility, explicitly stating that the tokens -- which
are a form of digital assets -- were not being offered as
securities, and thus omitted required securities law disclosures.
They created 100 billion TRX tokens, sold 40% of those tokens
through an ICO running from Aug. 31 to Sept. 2, 2017 ("Offering
Period"), retained approximately 35% of the tokens, sold 15% of the
tokens in what they described as a "private offering," and used 10%
of the tokens to pay an initial TRON supporter.
Through the ICO alone, the Defendants raised over $70 million.
During the Offering Period, TRX tokens were listed, promoted, and
sold on various crypto-asset exchanges, and have since fallen
precipitously in price.
On April 9, 2020, six days after the filing of the Complaint, the
Counsel published a notice of the Complaint through Business News
Wire in accordance with 15 U.S.C. Section 77z-1(a)(3)(A)(i). On
May 12, 2020, Clifford and Williams effected service of process on
Defendant TRON. On June 8, 2020, the Movants timely filed the
motion seeking appointment as the Lead Plaintiffs and approval of
Roche Cyrulnik Freedman LLP and Selendy & Gay PLLC as the co-lead
counsel.
Pursuant to the PSLRA, courts must adopt a presumption that the
most adequate plaintiff is the person or entity who (1) either
filed the complaint or made a timely motion to be appointed lead
plaintiff; (2) has the largest financial interest in the relief
sought by the class; and (3) otherwise satisfies the requirements
of Rule 23 of the Federal Rules of Civil Procedure.
Judge Broderick first finds that the Movants satisfied the timely
motion requirement by filing their motion on June 8, 2020, not
later than 60 days after the date on which the notice was
published. Additionally, Movant Williams was the first to file the
Complaint in the action, and no other complaint has been filed
related to these claims.
Second, the Movants have proffered sufficient evidence that they
have an extensive financial interest in the case. The Movants'
moving papers and supporting declarations, Hardin and Muhammad
suffered losses of $284,787 and $32,738.09, respectively, and
Williams suffered losses of approximately $139.52. The Movants are
not aware of any other class members with greater financial losses,
nor have any such class members come forward. The Judge therefore
finds that the Movants losses are sufficient to demonstrate their
significant financial interest in the relief sought by the class.
Third, the Movants otherwise satisfy the requirements of Rule 23 of
the Federal Rules of Civil Procedure. The Judge finds that the
Movants meet Rule 23's adequacy requirement. There is no evidence
that Movants claims would conflict with those of the class, and the
Movants' damages reflect a sufficient interest in the outcome of
the case.
In addition, the Movants' proposed lead counsel are both
experienced and qualified, have represented plaintiffs in multiple
other securities class action litigations, have the ability to
conduct the litigation effectively, and have already investigated
and commenced this lawsuit on behalf of the class. In the absence
of any competing motions, there is no basis to rebut the Movants'
presumptive LeadPplaintiff status in the case.
Finally, having reviewed the Movants' memorandum of law, the Judge
finds that Roche Cyrulnik Freedman LLP and Selendy & Gay PLLC will
adequately and effectively represent the interests of the class.
In sum, Judge Broderick granted the Movants' motion for appointment
as the Lead Plaintiffs and for approval of selection of the co-lead
counsel. Corey Hardin, David Muhammad, and Chase Williams are
appointed the Lead Plaintiffs, the law firms Roche Cyrulnik
Freedman LLP and Selendy & Gay PLLC are designated as the Co-Lead
Counsel.
A full-text copy of the District Court's June 30, 2020 Order is
available at https://bit.ly/34Z0C0k from Leagle.com.
Devin Freedman -- vel@rcfllp.com -- Roche Cyrulnik Freedman LLP,
Miami, FL, Counsel for Plaintiffs.
Edward John Normand -- tnormand@rcfllp.com -- Kyle William Roche --
kyle@rcfllp.com -- Jordana Lauren Haviv -- jhaviv@rcfllp.com --
Roche Cyrulnik Freedman LLP, New York, NY, Counsel for Plaintiffs.
Philippe Zuard Selendy -- pselendy@selendygay.com -- Jordan Ari
Goldstein -- jgoldstein@selendygay.com -- Michelle P. Foxman --
mfoxman@selendygay.com -- Mitchell D. Nobel --
mnobel@selendygay.com -- Selendy & Gay PLLC, New York, NY, Counsel
for Plaintiffs Counsel for Movants Corey Hardin, David Muhammad,
and Chase Williams.
UBER TECHNOLOGIES: Court Narrows Claims in Colopy Class Suit
------------------------------------------------------------
In the case, THOMAS COLOPY, et al., Plaintiffs, v. UBER
TECHNOLOGIES INC., Defendant, Case No. 19-cv-06462-EMC (N.D. Cal.),
Judge Edward M. Chen of the U.S. District Court for the Northern
District of California granted in part and denied in part Uber's
motion to dismiss several parts the Consolidated Class Action
Complaint, principally Count I and Count VI.
On April 16, 2020, Plaintiffs Spencer Verhines and Christopher
James filed a Consolidated Complaint against Uber, alleging various
wage-and-hour claims under California law and seeking various forms
of relief, including under California's Unfair Competition Law
("UCL") and the federal Declaratory Judgment Act ("DJA").
The Plaintiffs are residents of California who drive for Uber.
They bring the case as a putative class action on behalf of all
other individuals who have worked as Uber drivers in California who
have not released all of their claims against Uber. They assert
claims related to their alleged misclassification, including
failure to reimburse business expenses, failure to pay minimum wage
and overtime, failure to provide properly itemized pay statements,
failure to provide sick leave, and unlawful business practices.
They seek damages, as well as declaratory and injunctive relief,
which would require Uber to reclassify its drivers as employees.
The case began when Thomas Colopy filed a Class Action Complaint on
Oct. 8, 2019. On Oct. 18, 2019, the Defendant filed a Motion to
Dismiss and a Motion to Strike. On Dec. 16, 2019, the Court denied
Mr. Colopy's Motion for a Preliminary Injunction and granted in
part and denied in part the Defendant's Motion to Dismiss. Mr.
Verhines filed a separate lawsuit in San Francisco Superior Court
on March 12, 2020. That case was removed to federal court pursuant
to the Class Action Fairness Act, and on March 22, 2020, that case
was related to Colopy. An amended complaint was filed the
following day, which added Mr. James as a named Plaintiff.
On April 16, 2020, the Plaintiffs filed a Consolidated Class Action
Complaint, which unified the claims asserted in Colopy and
Verhines. However, that complaint no longer mentions Mr. Colopy.
On May 19, 2020, the Plaintiffs filed a Motion to Certify Class.
And on May 21, 2020, the Defendant filed a Motion to Dismiss. The
Plaintiffs' Motion for Class Certification will be heard at the end
of October. The Defendant's Motion to Dismiss was heard via Zoom
on June 25, 2020.
Uber raises several challenges to Plaintiffs' Consolidated
Complaint. First, Uber asserts that Count I (which seeks
declaratory relief under the DJA) is duplicative of the Plaintiffs'
other causes of action and should therefore be dismissed. Judge
Chen finds that at this early stage, the Plaintiffs may plead
alternative theories; while the Plaintiffs may not recover twice,
they need not choose between competing legal theories at this
time.
Next, Uber argues that Count I should be dismissed to the extent it
is premised upon violations of California Labor Code Section 246 or
2750.3. The Judge can see no reason why, if relief is available
under the UCL, a plaintiff would not be able to seek declaratory
relief under the DJA. Nothing in the text of the statute precludes
the relief that the Plaintiffs seek. To the contrary, the parties
have presented the Court with an "actual controversy," and the
Plaintiffs have asserted a plausible predicate claim under the
UCL.
Uber contends that the Plaintiffs have also failed to allege
sufficient facts to state a substantive claim for violation of
Section 246. The Judge finds that the Plaintiffs' Consolidated
Complaint is somewhat threadbare in its allegations, and the
pleadings do not indicate that the Plaintiffs would have qualified
for paid sick leave under Section 246 and/or the local ordinances.
To the extent that the Plaintiffs attempt to cure these
deficiencies by way of reference to declarations filed with their
Motion for Class Certification, that is not permissible under Rule
12(b)(6) because it exceeds the scope of the complaint.
Accordingly, Judge Chen dismisses the Plaintiffs' Section 246 claim
(which currently serves as a predicate to their UCL -- and DJA
--claims) with leave to amend. Should the Plaintiffs file an
amended complaint, their pleadings must plausibly suggest that they
would have qualified for paid sick leave under Section 246 and the
local ordinances. As Uber does not dispute that, at the time the
case was filed, it did not offer sick pay, the Plaintiffs need not
plead that they requested it in order to state their claim.
In addition to challenging the adequacy of the pleading of the
Plaintiffs' predicate Section 246 claim, Uber challenges Count VI
(the Plaintiffs' UCL claim) on additional grounds. First, Uber
contends that the Plaintiffs do not lack an adequate remedy at law
and therefore that the equitable relief afforded under the UCL is
unavailable to them. Second, Uber also asserts that the Plaintiffs
lack statutory standing under the UCL because they have not
plausibly alleged they suffered any injury in fact.
With respect to the first argument, the Judge finds that the
Plaintiffs point out that -- without the UCL -- they would have no
other means to recover damages for Uber's violations of state and
local paid sick time policies, nor would they be able to seek
"injunctive relief for harm arising from Uber's ongoing violation
of Cal. Lab. Codes Sections 246 and 2750.3. Accordingly, the
Plaintiffs do not have an adequate remedy at law.
Second, the UCL limits standing to the Plaintiffs who have suffered
injury in fact and have lost money or property as a result of the
unfair competition. The Plaintiffs have not adequately alleged
that they would have qualified for paid sick leave and/or that they
would have utilized it (and if so, how much) during the relevant
period, had it been available to them.
Consistent with the analysis and conclusion he reached, Judge Chen
dismisses the UCL claim (Count VI) to the extent it is premised on
a Section 246 claims; the dismissal is with leave to amend such
that, if appropriate, the Plaintiffs may add allegations
demonstrating that they did lose money or property.
Finally, the parties disagree as to whether the dismissal of Mr.
Colopy has or has not already occurred and whether that dismissal
should be with or without prejudice. The Judge finds that there is
no stipulation from the parties, and the Plaintiffs' purported
dismissal of Mr. Colopy occurred after Uber had filed an answer to
the Plaintiffs' First Amended Complaint. Accordingly, the
dismissal of Mr. Colopy will require a court order. However, the
Judge finds that the Plaintiffs' decision to omit Mr. Colopy from
the Consolidated Complaint was intended as a request to have him
dismissed from the case; it is not a waiver of his claims. The
Judge sees no reason not to dismiss Mr. Colopy. Accordingly, the
Judge dismisses Mr. Colopy from the case, but does so without
prejudice to his claims.
In sum, Judge Chen granted Uber's Motion to Dismiss to the extent
that he finds the Plaintiffs' Section 246 claim (which serves as a
predicate for the Plaintiffs' UCL and DJA claims) inadequately
pled. That claim is dismissed with leave to amend. The Judge also
dismissed Mr. Colopy from the case without prejudice. Otherwise,
the motion is denied. To the extent the Defendant asks the Court
to strike portions of the Plaintiffs' Consolidated Complaint where
is does not dismiss, the Judge denied that request.
A full-text copy of the District Court's June 30, 2020 Order is
available at https://bit.ly/31cTn3X from Leagle.com.
UNITED HEALTHCARE: Court Narrows Claims in Chiron Class Suit
------------------------------------------------------------
In the case, CHIRON RECOVERY CENTER, LLC, et al., Plaintiffs, v.
UNITED HEALTHCARE SERVICES, INC. & UNITED HEALTHCARE INSURANCE
COMPANY, Defendants, Case No. 9:18-CV-81761-ROSENBERG/REINHART
(S.D. Fla.), Judge Robin L. Rosenberg of the U.S. District Court
for the Southern District of Florida granted in part and denied in
part Defendant United Companies' Motion to Dismiss.
The case is about health insurance benefits. Plaintiff Chiron is a
medical services provider. The Defendants in the case, as their
names suggest, are insurance companies. Ten individuals are
co-Plaintiffs in the case. Those Individual Plaintiffs obtained
medical treatment from Chiron. When the Individual Plaintiffs
sought treatment from Chiron, Chiron called the Defendant to verify
that the Individual Plaintiffs had insurance coverage. The
Defendant so verified, and Chiron provided treatment.
At some point in time, a dispute arose between Chiron and the
Defendant. The Defendant took the position that in the past, it
had overpaid Chiron for certain treatments pertaining to urine
analysis, and it essentially demanded that it be repaid. Chiron
refused. The Defendant then took the position that Chiron owed it
a debt in the amount of the alleged overpayment.
To collect upon this debt, when the Defendant would otherwise
transmit funds to Chiron for current patients, the Defendant would
also deduct a certain amount of funds from the amount it remitted
to Chiron, and credit that amount towards Chiron's debt. The
deductions were applied to patients that Chiron was treating in the
present, even though the alleged overpayment had occurred in the
past. The patients possibly affected by this deduction are the
Individual Plaintiffs. Chiron filed this suit as a result of
Defendant's practice in "offsetting" Chiron's alleged overpayment
in the past with payments otherwise remitted in the present.
Early in the case, Chiron demanded that the Defendant provide the
governing insurance plan documents for the Individual Plaintiffs.
The Defendant refused. After Chiron received an adverse discovery
ruling pertaining to the Defendant's obligation to provide the plan
documents, Chiron filed another case, case 19-CV-80766 ("Chiron
II"). In Chiron II, Chiron sought to compel the Defendant to
produce the plan documents of the Individual Plaintiffs. After
extensive motion practice, the Court dismissed Chiron II with
prejudice.
Although it is not entirely clear to the Court how Chiron (or the
Defendant) obtained the plan documents for the Individual
Plaintiffs, at some point in time around the conclusion of Chiron
II, Chiron did obtain those documents. Chiron then filed its
Second Amended Complaint. The Defendant responded with the Motion
to Dismiss before the Court.
Judge Rosenberg first addresses whether Chiron has a conflict of
interest in bringing the claims of the Individual Plaintiffs
through the same counsel. The Judge then considers the Defendant's
Motion to Dismiss in the context of the claims that Chiron has
brought using a power of attorney before turning to claims that
Chiron has brought via an assignment of benefits and claims that
Chiron has brought solely on its own behalf.
Judge Rosenberg granted in part and denied in part the Defendant's
Motion to Dismiss. Counts I though VIII are dismissed with
prejudice. Count X and Count XIII survive. All other counts are
dismissed without prejudice and without leave to amend.
Among other things, Judge Rosenberg finds that Chiron has brought
10 counts by virtue of assignments of benefits from the Individual
Plaintiffs, each under 29 U.S.C. Section 1132(a)(1)(B) and each
contending that the Defendant wrongfully refused to pay health
insurance benefits. The Court has already ruled that eight of the
Individual Plaintiffs, A.N., C.W., E.R., Ke W., S.M., S.P., S.R.,
and W.G., could not assign their right to obtain benefits. As a
result, the counts brought by virtue of those assignments, Counts
IX, XI, XII, XIV, XV, XVI, XVII, and XVIII are dismissed. Because
the dismissal is based upon the invalidity of the Individual
Plaintiffs' assignments and not on the merits of the underlying
claims, the Court's dismissal is without prejudice but without
leave to amend for the same reasons previously stated. The two
counts premised on assignments from Individual Plaintiffs who did
not have anti-assignment provisions, Count X and Count XIII,
survive.
A full-text copy of the District Court's June 30, 2020 Order is
available at https://bit.ly/3k1lslX from Leagle.com.
UNITED SPECIALTY: Hoak Suit Moved From Colorado to N.D. California
------------------------------------------------------------------
The case styled ANN C. HOAK, on behalf of herself and all other
similarly situated v. UNITED SPECIALTY INSURANCE COMPANY, Case No.
1:20-cv-01152, was transferred from the U.S. District Court for the
District of Colorado to the U.S. District Court for the Northern
District of California on October 9, 2020.
The Clerk of Court for the Northern District of California assigned
Case No. 4:20-cv-07069-YGR to the proceeding.
The case arises from the Defendant's alleged breach of contract by
failing to reimburse the Plaintiff and Class members for the cost
of their unused ski passes due to the COVID-19 pandemic. The
Plaintiff and Class members purchased ski pass insurance from the
Defendant for the 2019/2020 ski season.
United Specialty Insurance Company is a property casualty insurance
company, with its principal place of business located at 1900 L.
Don Dodson Drive, in Bedford, Texas.[BN]
The Plaintiff is represented by:
John J. Schirger, Esq.
Matthew W. Lytle, Esq.
Joseph M. Feierabend, Esq.
MILLER SCHIRGER, LLC
4520 Main Street, Suite 1570
Kansas City, MO 64111
Telephone: (816) 561-6500
Facsimile: (816) 561-6501
E-mail: jschirger@millerschirger.com
mlytle@millerschirger.com
jfeierabend@millerschirger.com
- and –
Norm Siegel, Esq.
STUEVE SIEGEL HANSON LLP
460 Nichols Road, Suite 200
Kansas City, MO 64112
Telephone: (816) 714-7100
Facsimile: (816) 714-7101
E-mail: siegel@stuevesiegel.com
UNITED STATES: Court Issues Injunction Order in Kirwa Suit
----------------------------------------------------------
In the class action lawsuit captioned as MAHLON KIRWA, et al., v.
UNITED STATES DEPARTMENT OF DEFENSE, et al., Case No.
1:17-cv-01793-ESH (D.C.), the Hon. Judge Ellen S. Huvelle entered
an order permanently enjoining the Defendants from:
1. refusing to sign and issue Form N-426s to members of the
class pursuant to Section II of DOD's October 13, 2017
N-426 Policy; and
2. refusing to certify class members who have served for one
day or more in the Selected Reserve as having served
honorably, except as related to the conduct of an
individual plaintiff or class member as reflected in that
soldier's service record and based on sufficient grounds
generally applicable to all enlistees.
For purposes of this injunction, the class consists of:
"all persons who (1) have enlisted in the U.S. military
through the Military Accessions Vital to the National
Interest (MAVNI) program prior to October 13, 2017; (2) have
served in the Selected Reserve of the Ready Reserve; and (3)
have not received a completed and certified Form N-426."
According to the Court, after members of the class submit or
resubmit N-426s to their military officer ranked O-6 or higher,
defendants should use their best efforts to certify or deny Form
N-426s within two business days of receipt of the Form N-426. The
Plaintiffs' remaining claims are dismissed with prejudice as to the
named plaintiffs and on behalf of the class (as opposed to any
individual claims of unnamed class members). The Court will retain
jurisdiction to enforce the permanent injunction set forth herein,
Judge Huvelle says.
A copy of the Court's Order is available from PacerMonitor.com at
https://bit.ly/3colTUv at no extra charge.[CC]
UNITED STATES: Court Junks Zyszkiewicz's Prisoners Suit
--------------------------------------------------------
Judge Emmet G. Sullivan of the U.S. District Court for the District
of Columbia dismissed the case, STEPHEN CAMERON ZYSZKIEWICZ,
Petitioner, v. WILLIAM PELHAM BARR, et al., Respondents, Civil
Action No. 20-1599 (UNA) (D. D.C.), pursuant to 28 U.S.C. Section
1915(e)(2)(B)(ii).
The Petitioner, appearing pro se, has filed a Petition for
Declaratory Judgment, Writ of Mandamus, and Review, and an
application to proceed in forma pauperis. The Petitioner is a
former California prisoner who is subject to terms of probation in
Fresno County, California. As a result, his use of
doctor-recommended medical marijuana could result in further
incarceration.
The Petitioner seeks an order to compel the Drug Enforcement
Administration to comply with 21 U.S.C. Sections 811, 812 by
rescheduling or removing "marijuana from the list of controlled
substances due to its safe and effective medical usage." He
purports to seek relief on behalf of "similarly situated" users of
marijuana.
As a pro se litigant, however, the Petitioner cannot prosecute the
claims of other individuals or the marijuana industry, nor can he
act as a class representative. The Petitioner has shown neither a
clear right to relief nor a clear duty for the government to act.
In addition, the Petitioner has an adequate remedy under the
Controlled Substances Act, which he claims to have pursued to final
action that is reviewable by the D.C. Circuit or another
appropriate circuit court.
Consequently, no basis exists for granting mandamus or declaratory
relief. Accordingly, Judge Sullivan dismissed the case.
A full-text copy of the District Court's June 30, 2020 Memorandum
Opinion is available at https://bit.ly/3lPAE6b from Leagle.com.
UNITEDHEALTHCARE: Caldwell Seeks to Certify ERISA Class
-------------------------------------------------------
In class action lawsuit captioned as MARY CALDWELL, on behalf of
herself and all others similarly situated, v. UNITEDHEALTHCARE
INSURANCE COMPANY; UNITED HEALTHCARE SERVICES, INC., Case No.
3:19-cv-02861-WHA (N.D. Cal.), the Plaintiff will move the Court on
October 29, 2020 for an order:
1. certifying the following Class:
"all persons covered under ERISA health plans, self-funded
or fully insured, that are administered by United and
whose claims for specialized liposuction for treatment of
their lipedema were denied as unproven"; and
2. appointing her as class representative; and
3. appointing her counsel as Class Counsel.
This putative class action, filed against the defendants,
challenges United's practice of denying coverage for lipedema
surgery (i.e., liposuction) on the ground that such surgery is
"unproven" and "not medically necessary" in all circumstances.
Effective January 1, 2020, United's written Omnibus guideline
provides, "[l]iposuction for lipedema is unproven and not medically
necessary due to insufficient evidence of safety and/or efficacy."
Since its enactment, United has relied on the Omnibus guidelines to
deny claims for liposuction to treat lipedema as "unproven" and
"not medically necessary." Prior to January 1, 2020, United's
medical directors applied the position of United’s research arm
(MTIS) to deny claims for liposuction to treat lipedema on the same
bases.
Ms. Caldwell is a United member suffering from advance lipedema, a
rare and debilitating condition that is chronic, progressive,
painful, and immobilizing. Due to the severity of her condition,
Ms. Caldwell's physician recommended that she undergo lipedema
surgery.
UnitedHealth is an American for-profit managed health care company
based in Minnetonka, Minnesota.
A copy of the Plaintiff's motion to certify class action is
available from PacerMonitor.com at https://bit.ly/2RDvwVN at no
extra charge.[CC]
The Plaintiff is represented by:
Robert S. Gianelli, Esq.
Joshua S. Davis, Esq.
Adrian J. Barrio, Esq.
GIANELLI & MORRIS, A Law Corporation
550 South Hope Street, Suite 1645
Los Angeles, CA 90071
Telephone: (213) 489-1600
Facsimile: (213) 489-1611
E-mail: rob.gianelli@gmlawyers.com
joshua.davis@gmlawyers.com
adrian.barrio@gmlawyers.com
VAILS GATE: Court Conditionally Certifies Class in Aguilo FLSA Suit
-------------------------------------------------------------------
In the case, MIREYA AGUILO, Individually and on Behalf of All and
Others Similarly Situated, Plaintiff, v. VAILS GATE CLEANERS INC.,
EXIT 9, LLC and RICHARD MASSIMI, Jointly and Severally, Defendants,
Case No. 18 Civ. 8850 (PMH) (JCM) (S.D. N.Y.), Magistrate Judge
Judith C. McCarthy of the U.S. District Court for the Southern
District of New York granted in part and denied in part the
Plaintiff's motion for conditional certification as a collective
action under 29 U.S.C. Section 216(b).
On Sept. 27, 2018, Plaintiff Aguilo, individually and on behalf of
all others similarly situated, commenced the action under the Fair
Labor Standards Act ("FLSA") and the New York Labor Law ("NYLL")
against Vails Gate and Defendant Massimi. The Plaintiff alleges
that she and all other non-management employees were not paid the
statutory minimum wage and overtime compensation for hours worked
in excess of forty hours per week.
Vails Gate and Exit 9 are both active New York corporations that
are owned and operated by Defendant Massimi. The Plaintiff alleges
that the Defendants owned 13 dry cleaning and laundry service
locations in New York during the relevant time period.
The Plaintiff commenced employment with the Defendants in December
2013. Aguilo asserts that her duties primarily consisted of the
'finisher' steps of the laundry process, including folding and
pressing the clean laundry pieces of clothing in a specialized
steam machine, packing and organizing clothes to be delivered to
customers, and inspecting clothing to determine whether it was in
good condition. Aguilo claims that she typically worked five to
six days per week from approximately 8:00 a.m. until 6:00 p.m. or
7:00 p.m., totaling between 54 and 62 hours each week, but that the
summers were often more hectic than winters.
Aguilo initially worked at the Vails Gate location at 115 Temple
Hill Road in New Windsor, NY from December 2013 to December 2014
and was then based at the Vails Gate Processing Center located at
41 Wisner Avenue, Newburgh, New York from approximately April 2015
through August 2018. She also worked at two other retail locations
during her employment: (1) Tailorland at 21 Route 17K in Newburgh,
NY from January 2015 to April 2015; and (2) the Highland Mills
location at 547 Route 32 in Highland Mills, NY.
Aguilo maintains that she was paid by the hour and received her
wages by cash, check, or some combination of the two, accompanied
by a wage statement that did not reflect the accurate number of
hours she worked during the workweek. She was paid $7 per hour
from the beginning of her employment until June 2015, when her
hourly wage increased to $9 per hour for a maximum of 35 hours per
week, with every additional hour paid at the $7 per hour rate.
Aguilo contends that her hourly rate increased to $10.40 in March
2018, but she was still paid $7 per hour for all hours worked in
excess of 35 hours per week.
Aguilo claims that she was paid below the statutory minimum wage
for "a large portion" of her employment and never received overtime
premiums for hours worked in excess of 40 hours a week. She
further maintains that the Defendants did not provide her with an
accurate paystub or wage statement setting forth her hourly rate or
hours worked. Aguilo explains that the Defendants asked her to
keep track of her own hours, and that she was instructed by Manager
'Natasha' to write the time when she arrived the time when she
finished her shift, and the total number of hours worked during the
shift. Aguilo kept track of her own time on paper from December
2013 until around 2015, when Defendants began tracking her hours on
a scanner machine.
Aguilo contends that Defendant Massimi was adamant in his position
that he does not pay overtime premiums, and that the Defendants
maintained a corporate policy that resulted in a failure to pay
other employees the statutory minimum wage, overtime and
spread-of-hours premiums, or provide adequate wage statements and
notices. She learned that the policy was applied to other
employees through observations and conversations with: (1)
"Bethania," a washer and clothing counter at the 115 Temple Hill Rd
location in New Windsor, NY; (2) "Giovanny," a hanger, packer, and
clothing ticketer at the 41 Wisner Avenue location in Newburgh, NY;
(3) "Carmen," a washer and stain remover at the 41 Wisner Avenue
location; (4) "Juan," a janitor and general service employee at the
41 Wisner Avenue location; and (5) "Guillermo," a delivery employee
who worked at all locations.
The Plaintiff seeks to conditionally certify a collective of all
non-managerial employees who worked at four of the Defendants'
facilities at any time from Sept. 27, 2012 to the present.
The Defendants argue that the Plaintiff fails to allege with
sufficient specificity the nexus between herself and all
non-managerial employees or that all non-managerial employees were
victims of a common policy or plan that violated the law. In the
alternative, they assert that if the Court grants conditional
certification, the collective should be limited to employees such
as the Plaintiff who were 'pressers' or 'store clerks' during their
employment.
Magistrate Judge McCarthy finds that conditional certification of
"all non-managerial employees" would be overly broad, and thus
limits the collective to individuals who served as pressers,
folders, and laundry employees during the relevant period. The
Plaintiff seeks to conditionally certify a class "of all
non-management employees" at four of the Defendants' locations.
This would encompass non-managerial employees other than those who
served as pressers, folders or laundry employees, such as "store
clerks" as well as other individuals listed in Aguilo's declaration
who performed janitorial, general services and delivery services.
The Plaintiff does not explicitly reference the roles or titles
encompassed in a proposed collective of all non-management
employees, but she does set forth her own duties and those of some
of the employees she claims to have spoken with and observed.
Accordingly, Judge McCarthy grants conditional certification as to
all individuals who served as pressers, folders and laundry
employees at the four locations listed in the Plaintiff's motion
during the relevant time period, but declines to certify a broader
collective of all non-managerial employees.
The Plaintiff seeks approval of notice and consent forms and a
reminder notice, and the Defendants oppose the proposed six-year
notice period and present several arguments concerning the content
of the forms. The Plaintiff argues that the Notice should be sent
to all putative Plaintiffs who worked for the Defendants during the
six years preceding the filing of the Complaint because the
Plaintiff asserts NYLL claims identical to her FLSA claims, and
thus the longer notice period would best serve the interests of
judicial economy.
The Magistrate Judge is not persuaded by the Plaintiff's argument
and concludes that approving the longer six-year period would
likely result in confusion and would not promote judicial
efficiency. Moreover, courts have declined to approve the longer
six-year notice period where plaintiffs moved only to certify an
FLSA opt-in class, as is the instant case, and not for class
certification under Rule 23. Consequently, the notice period will
be limited to three years.
Judge McCarthy also rejects the Defendants' request to strike the
spaces for employment dates from the consent form. The Defendants
provide no reasoned argument against including spaces for dates of
employment. The Judge will also permit the Plaintiff to send a
reminder notice 21 days before the opt-in deadline. Finally, Judge
McCarthy grants the Plaintiff's request for the production of
names, addresses, and telephone numbers of the potential opt-in
Plaintiffs. Courts in the District have routinely directed
defendants to produce telephone numbers, as well as other modes of
communication, such as social media.
For the foregoing reasons, Magistrate Judge McCarthy granted in
part and denied in part the Plaintiff's motion for conditional
certification. The Judge conditionally certified a collective of
all pressers, folders and laundry employees who worked at any of
the following four locations since Sept. 27, 2015: (1) Vails Gate
Processing Center at 41 Wisner Avenue, Newburgh, New York 12550;
(2) Vails Gate Cleaners at 115 Temple Hill Rd, New Windsor, New
York 12553; (3) Vails Gate Cleaners at 547 Route 32, Highland
Mills, New York 10930; and (4) Tailorland Newburgh located at 21
Route 17K, Newburgh, New York 12550. Judge McCarthy, however,
denied without prejudice the Plaintiff's motion to certify a
broader collective of all non-managerial employees.
The Plaintiff is directed to revise the notice and consent forms
consistent with her Opinion, after which the Plaintiff and the
Defendants will meet and confer prior to submitting the final
versions to the Court for approval. The Defendants are further
directed to provide the Plaintiff's counsel with the names,
addresses, telephone numbers, and e-mail addresses for all the
potential opt-in Plaintiffs.
A full-text copy of the District Court's June 30, 2020 Opinion &
Order is available at https://bit.ly/3iWPhTr from Leagle.com.
VAXART INC: Kehoe Law Firm Investigates Securities Claims
---------------------------------------------------------
Kehoe Law Firm, P.C. is investigating potential securities claims
on behalf of investors of Vaxart, Inc. ("Vaxart" or the "Company")
(NASDAQ: VXRT) to determine whether the Company engaged in
securities fraud or other unlawful business practices.
Vaxart investors who purchased, or otherwise acquired, the
Company's common stock between June 25, 2020 and July 25, 2020,
inclusive (the "Class Period"), and suffered losses greater than
$50,000 are encouraged to complete Kehoe Law Firm's Securities
Class Action Questionnaire or contact Kevin Cauley, Director,
Business Development, (215) 792-6676, Ext. 802,
securities@kehoelawfirm.com, to discuss the securities
investigation or potential legal claims.
According to a class action complaint filed on August 24, 2020 in
United States District Court, during the Class Period, the Vaxart
defendants made materially false and/or misleading statements,
because they misrepresented and failed to disclose material
information pertaining to the Company's business and operations,
which were known to Defendants or recklessly disregarded by them.
According to the class action complaint, Vaxart exaggerated the
prospects of its COVID-19 vaccine candidate, including its
purported role or involvement in Operation Warp Speed ("OWS").
Contrary to Defendants' statements, Vaxart's COVID-19 vaccine
candidate had no reasonable prospect for mass production and
marketing and was not among the companies selected to receive
significant financial support from OWS to produce hundreds of
millions of vaccine doses. Instead, Vaxart's COVID-19 vaccine
candidate was merely selected to participate in preliminary U.S.
government studies to determine potential areas for possible OWS
partnership and support. At the time of making the statements,
according to the complaint, those studies were ongoing, and no
determination had been made.
On June 26, 2020, Vaxart announced that ". . . its oral COVID-19
vaccine has been selected to participate in a non-human primate
(NHP) challenge study, organized and funded by Operation Warp
Speed, a new national program aiming to provide substantial
quantities of safe, effective vaccine for Americans by January
2021," as well as that Vaxart is ". . . one of the few companies
selected by Operation Warp Speed, and that ours is the only oral
vaccine being evaluated."
On July 25, 2020, a New York Times article, "Corporate Insiders
Pocket $1 Billion in Rush for Coronavirus Vaccine," described how
Vaxart's "[c]ompany insiders, who weeks earlier had received stock
options worth a few million dollars, saw the value of those awards
increase sixfold. And a hedge fund that partly controlled the
company walked away with more than $200 million in instant
profits."
According to The New York Times, "[s]ome officials at the
Department of Health and Human Services have grown concerned about
whether companies including Vaxart are trying to inflate their
stock prices by exaggerating their roles in Warp Speed, a senior
Trump administration official said. The department has relayed
those concerns to the Securities and Exchange Commission, said the
official, who spoke on the condition of anonymity."
On this news, Vaxart's share price dropped significantly on July
27, 2020, closing at $11.16 per share.
Kehoe Law Firm, P.C., with offices in New York and Philadelphia, is
a multidisciplinary, plaintiff–side law firm dedicated to
protecting investors from securities fraud, breaches of fiduciary
duties, and corporate misconduct. Combined, the partners at Kehoe
Law Firm have served as Lead Counsel or Co-Lead Counsel in cases
that have recovered more than $10 billion on behalf of
institutional and individual investors.
This press release may constitute attorney advertising. [GN]
VIVINT SOLAR: Nov. 13 Class Action Lead Plaintiff Deadline Set
--------------------------------------------------------------
Pursuant to Section 21D of the Securities Exchange Act of 1934 (the
"Exchange Act"), 15. U.S.C. Sec.78u-4, that a class action lawsuit
has been filed against Vivint Solar, Inc. ("Vivint") (NYSE:VSLR)
and certain of its officers and directors. The class action, styled
In re Vivint Solar, Inc. Securities Litigation, No. 1:20-cv-07051
(S.D.N.Y.), asserts that a joint proxy statement/prospectus filed
with the U.S. Securities and Exchange Commission, soliciting
stockholder approval of a merger agreement Vivint entered into with
Sunrun Inc. and Sunrun's wholly-owned subsidiary, fails to disclose
material information in violation of Section 14(a) the Exchange
Act, 15 U.S.C. Sec.78n(a). The claim is brought on behalf of
current holders of Vivint stock.
Section 21D(a)(3) of the Exchange Act allows any investor holding
Vivint common stock to seek appointment by the Court as a lead
plaintiff within sixty (60) days of this notice. If you wish to
serve as lead plaintiff, you must move the Court by no later than
November 13, 2020.
If you have any questions about this Notice, the action, your
rights or your interests, you may contact:
Michael J. Klein
Abraham, Fruchter & Twersky, LLP
One Penn Plaza, Suite 2805
New York, New York 10119
Tel: (212) 279-5050, Ext. 1608
Fax: (212) 279-3655
Email: mklein@aftlaw.com [GN]
VIVINT SOLAR: Rigrodsky & Long Files Securities Class Action
------------------------------------------------------------
Rigrodsky & Long, P.A. on Sept. 14 disclosed that it has filed a
class action complaint in the United States District Court for the
District of Delaware on behalf of holders of Vivint Solar, Inc.
("Vivint" or the "Company") (NYSE: VSLR) common stock in connection
with the proposed acquisition of Vivint by Sunrun Inc. ("Sunrun")
and Viking Merger Sub, Inc. ("Merger Sub") announced on July 6,
2020 (the "Complaint"). The Complaint, which alleges violations of
the Securities Exchange Act of 1934 against Vivint, its Board of
Directors (the "Board"), Sunrun, and Merger Sub, is captioned Wolf
v. Vivint Solar, Inc., Case No. 1:20-cv-01111 (D. Del.).
To learn more about this investigation and your rights, visit:
https://www.rigrodskylong.com/cases-vivint-solar-inc,join.
You may also contact Seth D. Rigrodsky or Gina M. Serra cost and
obligation free at (888) 969-4242 or info@rl-legal.com.
On July 6, 2020, Vivint entered into an agreement and plan of
merger (the "Merger Agreement") with Sunrun and Merger Sub.
Pursuant to the terms of the Merger Agreement, Vivint's
shareholders will receive 0.55 of a share of Sunrun per share (the
"Proposed Transaction").
Among other things, the Complaint alleges that, in an attempt to
secure shareholder support for the Proposed Transaction, defendants
issued materially incomplete disclosures in a Form S-4 Registration
Statement (the "Registration Statement") filed with the United
States Securities and Exchange Commission. The Complaint alleges
that the Registration Statement omits material information with
respect to, among other things, the Company's and Sunrun's
financial projections and the analyses performed by Vivint's
financial advisors. The Complaint seeks injunctive and equitable
relief and damages on behalf of holders of Vivint common stock.
If you wish to serve as lead plaintiff, you must move the Court no
later than November 13, 2020. A lead plaintiff is a representative
party acting on behalf of other class members in directing the
litigation. Any member of the proposed class may move the Court to
serve as lead plaintiff through counsel of their choice, or may
choose to do nothing and remain an absent class member.
Rigrodsky & Long, P.A., with offices in Delaware and New York, has
recovered hundreds of millions of dollars on behalf of investors
and achieved substantial corporate governance reforms in securities
fraud and corporate class actions nationwide.
Attorney advertising. Prior results do not guarantee a similar
outcome.
Contact Information:
Rigrodsky & Long, P.A.
Seth D. Rigrodsky
Gina M. Serra
(888) 969-4242 (Toll Free)
(302) 295-5310
Fax: (302) 654-7530
info@rl-legal.com
https://rl-legal.com [GN]
WAKEFERN FOOD: Faces Myers Class Action Suit in S.D. New York
-------------------------------------------------------------
A class action lawsuit has been filed against Wakefern Food Corp.
The case is styled as Eileen Myers, individually and on behalf of
all others similarly situated v. Wakefern Food Corp., Case No.
7:20-cv-08470 (S.D.N.Y., Oct. 12, 2020).
The nature of suit is stated as Other Fraud.
The Wakefern Food Corporation, founded in 1946 and based in
Keasbey, New Jersey, is the 20th largest private company and the
largest retailers' cooperative group of supermarkets in the United
States, the fourth-largest cooperative of any kind in U.S., and the
largest private employer in New Jersey.[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
WARNER MUSIC: Williams Appeals C.D. California Ruling to 9th Cir.
-----------------------------------------------------------------
Plaintiffs The Lenny Williams Production Company and Leonard
Williams filed an appeal from a court ruling entered in the lawsuit
styled Leonard Williams, et al. v. Warner Music Group Corporation,
et al., Case No. 2:18-cv-09691-RGK-PJW, in the U.S. District Court
for the Central District of California (Los Angeles).
On Feb. 27, 2020, the Hon. Judge R. Gary Klausner entered an order
denying the Plaintiffs' Motion to Certify Class.
The appellate case is captioned as The Lenny Williams Production
Company and Leonard Williams v. WARNER MUSIC GROUP CORPORATION, a
Delaware Corporation; WARNER BROS. RECORDS, INC., a Delaware
Corporation; and DOES 2-10, Case No. 20-80052, in the United States
Court of Appeals for the Ninth Circuit.
This action arises out of a dispute between a musician and his
record label. On October 4, 2018, Plaintiff Leonard Williams filed
a class action complaint against Warner Music Group Corp. in state
court. On November 16, 2018, WMG removed the action to this Court,
invoking the Court's jurisdiction under the Class Action Fairness
Act. On December 21, 2018, Plaintiffs Williams and The Lenny
Williams Production Company, on behalf of a putative class, filed a
First Amended Complaint against Defendants WMG, Warner Bros.
Records, Inc.
Lenny Williams Production Company is a corporate entertainment
agency, offering live entertainment productions.
Warner Music is an American multinational entertainment and record
label conglomerate headquartered in New York City.[BN]
The Plaintiffs-Petitioners are represented by:
Douglas L. Johnson, Esq.
Neville Johnson, Esq.
JOHNSON & JOHNSON LLP
439 N. Canon Drive
Beverly Hills, CA 90210
Telephone: 310-957-1080
- and -
Paul R. Kiesel, Esq.
KIESEL BOUCHER & LARSON
8648 Wilshire Blvd.
Beverly Hills, CA 90211
- and -
Jeffrey Alan Koncius, Esq.
Nicole Ramirez, Esq.
KIESEL LAW LLP
8648 Wilshire Boulevard
Beverly Hills, CA 90211
Telephone: 310-854-4444
- and -
Clifford Harris Pearson, Esq.
Bobby Pouya, Esq.
Daniel Leon Warshaw, Esq.
PEARSON SIMON WARSHAW & PENNEY, LLP
15165 Ventura Boulevard
Sherman Oaks, CA 91403
Telephone: 818-788-8300
The Defendants-Respondents are represented by:
Sean Ashley Commons, Esq.
Sheri Porath Rockwell, Esq.
Rollin Ransom, Esq.
SIDLEY AUSTIN LLP
555 West 5th Street
Los Angeles, CA 90013
Telephone: 213-896-6010
WEST VIRGINIA: Court Certifies Defendant Class in Nelson Suit
-------------------------------------------------------------
In the case, DAKOTA NELSON; BELINDA BIAFORE, individually and as
Chairperson of the West Virginia Democratic Party; ELAINE A.
HARRIS, individually and as Chairperson of the Kanawha County
Democratic Executive Committee; WEST VIRGINIA DEMOCRATIC PARTY; and
WEST VIRGINIA HOUSE LEGISLATIVE COMMITTEE, Plaintiffs, v. MAC
WARNER in his official capacity as West Virginia Secretary of
State; and VERA McCORMICK, in her official capacity as Clerk of
Kanawha County West Virginia, Defendants, Civil Action No.
3:19-0898 (S.D. W.Va.), Judge Robert C. Chambers of the U.S.
District Court for the Southern District of West Virginia,
Huntington Division, granted the Plaintiffs' motion to certify a
Defendant class of all county ballot commissioners in West Virginia
to ensure statewide declaratory and injunctive relief against the
challenged law.
The suit challenges the constitutionality of a West Virginia law
mandating that ballots for partisan offices list first the party
whose candidate for president received the most votes in the last
election.
West Virginia's "Ballot Order Statute" mandates that the party
whose candidate for president received the highest number of votes
at the last preceding presidential election is to be placed in the
left, or first column, row or page, as is appropriate to the voting
system. The party which received the second highest vote is to be
next and so on. Any groups or third parties which did not have a
candidate for president on the ballot in the previous presidential
election are to be placed in the sequence in which the final
certificates of nomination by petition were filed.
Election officials have interpreted "highest number of votes" to
refer to votes in West Virginia, not nationwide. Thus, ballots for
the upcoming 2020 general election will list Republican Party
candidates first because a majority of West Virginians voted for
Donald Trump in 2016. The Plaintiffs, all of whom are affiliated
with the Democratic Party, allege a growing body of social science
and case law confirms that candidates listed first on a ballot
benefit from a bias known as the "primacy effect." They therefore
argue the Ballot Order Statute is unconstitutional because it
arbitrarily gives candidates from one party an advantage over
candidates from other parties.
Count One alleges the Ballot Order Statute is an undue burden on
the right to vote in violation of the First and Fourteenth
Amendments. And Count Two alleges the Statute constitutes
disparate treatment in violation of the Fourteenth Amendment's
Equal Protection Clause. The Plaintiffs seek a declaratory
judgment that the Statute is unconstitutional and injunctive relief
prohibiting the defendants from enforcing it.
The Plaintiffs now move to certify a Defendant class of all West
Virginia county ballot commissioners with Defendant Vera McCormick
as the class representative. Each county in West Virginia has a
board of ballot commissioners consisting of three members. The
first member is the current clerk of that county's commission. The
county executive committee of the political party that cast the
most votes statewide in the last general election appoints the
second member. And, the county executive committee of the
political party that cast the second most votes statewide in the
last general election appoints the third member. Ballot
commissioners have many election-related duties, including the
provision of ballots in certain elections. With 55 counties, West
Virginia has a total of 165 ballot commissioners. Defendants
McCormick and Secretary of State Mac Warner oppose class
certification, and the parties argued the motion at a pre-trial
conference on June 29, 2020.
Judge Chambers finds that (i) the proposed class meets the
requirements of Rule 23(a) of the Federal Rules of Civil Procedure;
(ii) the proposed class meets the requirements of Rule 23(b)(1) and
(b)(2); and (iii) the motion for class certification is timely.
For these reasons, Judge Chambers granted the Plaintiffs' motion.
The Judge certified the Defendant class of all county ballot
commissioners for the state of West Virginia. The Judge appointed
Defendant McCormick as the class representative and her counsel,
Bailey & Wyant, PLLC, as the class counsel.
The Judge further ordered the counsel for the Plaintiffs, McCormick
and Warner, to meet and confer and agree upon a class notice to be
mailed to each class member. The class notice must advise each
class member of the suit, that the Court declared class action
status, and that the class includes all county ballot commissioners
for the state of West Virginia.
A full-text copy of the District Court's June 30, 2020 Order is
available at https://bit.ly/34YWVI0 from Leagle.com.
WESTON DISTANCE: Faces Hedges ADA Class Suit in S.D. New York
-------------------------------------------------------------
A class action lawsuit has been filed against Weston Distance
Learning, Inc. The case is styled as Donna Hedges, on behalf of
herself and all other persons similarly situated v. Weston Distance
Learning, Inc., Case No. 1:20-cv-08501 (S.D.N.Y., Oct. 12, 2020).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Weston Distance Learning, Inc., is a private, for-profit education
company based in Fort Collins, Colorado. Weston Distance Learning,
Inc., according to their website, offers distance education courses
through its three brands, U.S. Career Institute, McKinley College,
and At-Home Professions.[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
WILLIAM HOWARD: Blind Users Can't Access Web Site, Hedges Alleges
-----------------------------------------------------------------
DONNA HEDGES, on behalf of herself and all other persons similarly
situated v. WILLIAM HOWARD TAFT UNIVERSITY, Case No. 1:20-cv-08454
(S.D.N.Y., Oct. 9, 2020), is brought against the Defendant for
violation of the Americans with Disabilities Act, the New York
State Human Rights Law, the Rehabilitation Act of 1973, and the New
York City Human Rights Law.
The case arises from the Defendant's failure to design, construct,
maintain, and operate its website, https://www.taft.edu/, to be
fully accessible to and independently usable by the Plaintiff and
other blind or visually-impaired prospective students. The
Defendant's website contains access barriers, which hinder the
Plaintiff and Class members to enjoy the benefits of its online
goods, content, and services offered to the general public through
the website.
According to the complaint, the access barriers include: (1) lack
of alternative text (alt-text), or a text equivalent, which
prevents screen readers from accurately vocalizing a description of
the graphics; (2) empty links that contain no text causing the
function or purpose of the link to not be presented to the user;
(3) redundant links where adjacent links go to the same Uniform
Resource Locator (URL) address, which results in additional
navigation and repetition for keyboard and screen-reader users; and
(4) linked images missing alt-text, which causes problems if an
image within a link contains no text and that image does not
provide alt-text.
The Plaintiff seeks permanent injunction to cause a change in the
Defendant's corporate policies, practices, and procedures so that
the Defendant's website will become and remain accessible to blind
and visually-impaired prospective students.
William Howard Taft University is an accredited private for-profit
university with its principal address located at 3333 South
Wadsworth Blvd., in Lakewood, Colorado.[BN]
The Plaintiff is represented by:
Michael A. LaBollita, Esq.
Jeffrey M. Gottlieb, Esq.
Dana L. Gottlieb, Esq.
GOTTLIEB & ASSOCIATES
150 East 18th Street, Suite PHR
New York, NY 10003
Telephone: (212) 228-9795
Facsimile: (212) 982-6284
E-mail: Michael@Gottlieb.legal
Jeffrey@gottlieb.legal
danalgottlieb@aol.com
WIRECARD AG: Dalpoggetto Suit Transferred to E.D. Pennsylvania
--------------------------------------------------------------
The case styled MARK DALPOGGETTO, individually and on behalf of all
others similarly situated v. WIRECARD AG, MARKUS BRAUN, BURKHARD
LEY, ALEXANDER VON KNOOP, JAN MARSALEK, and SUSANNE STEIDL, Case
No. 2:19-cv-00986, was transferred from the U.S. District Court for
the Central District of California to the U.S. District Court for
the Eastern District of Pennsylvania on October 9, 2020.
The Clerk of Court for the Eastern District of Pennsylvania
assigned Case No. 2:20-cv-05017-TJS to the proceeding.
The case arises from the Defendants' alleged violations of Section
10(b) and Section 20(a) of the Securities Exchange Act of 1934 by
making false and misleading statements with the U.S. Securities and
Exchange Commission about Wirecard's business, operations, and
prospects in order to attract investors and artificially inflate
prices of Wirecard securities from April 7, 2016, through February
1, 2019.
Wirecard AG is a technology company, which offers outsourcing and
white label solutions for electronic payment transactions
worldwide, with its headquarters located in Aschheim, Germany.[BN]
The Plaintiff is represented by:
Laurence M. Rosen, Esq.
THE ROSEN LAW FIRM, P.A.
355 South Grand Avenue, Suite 2450
Los Angeles, CA 90071
Telephone: (213) 785-2610
Facsimile: (213) 226-4684
E-mail: lrosen@rosenlegal.com
WYNN LAS VEGAS: Settlement in Keli May Suit Gets Prelim. Approval
-----------------------------------------------------------------
In the case, KELI P. MAY, SHARON SOUSA, and THOMAS BODOVINAC,
individually and on behalf of others similarly situated,
Plaintiffs, v. WYNN LAS VEGAS, LLC, Defendant, Case No.
2:15-cv-02142-RFB-DJA (D. Nev.), Judge Richard Franklin Boulware,
II of the U.S. District Court for the District of Nevada granted
preliminary approval of the proposed class settlement.
The Court conditionally certified the following Class solely for
purposes of settlement: All hourly paid non-exempt persons
employed by or formerly employed as security officers by Defendant
Wynn Las Vegas, LLC at any time from Oct. 14, 2012 through Nov. 26,
2019.
Named Plaintiffs Keli P. May, Sharon Sousa, and Thomas Bodovinac
are appointed as the Class Representatives.
Leon Greenberg of Leon Greenberg Professional Corporation and
Christian Gabroy of Gabroy Law Offices are appointed as the Class
Counsel.
American Legal Claim Services, LLC, is confirmed as the Claims
administrator.
The Court approved (i) the notice and claim procedures set forth in
the Settlement Agreement; and (ii) as to form and content, the
Claim Form (Exhibit A) and the Notices to the Class of Proposed
Settlement (Exhibits B and F).
The Court enjoined the Plaintiffs and the all Class Members from
filing or prosecuting any other cases, claims, suits, or
administrative proceedings (including filing claims with the Nevada
Office of the Labor Commissioner) regarding the Released Claims
unless and until such Class Members have filed valid and timely
Requests for Exclusion with the Claims Administrator and the time
for filing claims with the Claims Administrator has elapsed.
The Defendant is directed to provide to the Claims Administrator a
spreadsheet listing the following information for each Class Member
derived from its payroll and/or personnel records: name and last
known (to the Defendant) address of those hourly paid non-exempt
persons employed by or formerly employed as security officers by
Defendant at any time from Oct. 14, 2012 through Nov. 26, 2019; and
the total number of days worked by each Class Member from Oct. 14,
2012 through Nov. 26, 2019.
The Class Member Notice List must be provided in a format
reasonably acceptable to the Claims Administrator. The Defendant
will consult with the Claims Administrator prior to the production
date to ensure that the format will be acceptable to the Claims
Administrator. The Class Member Notice List will be used only by
the Claims Administrator for the sole purpose of effectuating the
Settlement.
Following receipt of the Class Member Notice List, the Claims
Administrator will mail a Notice (Exhibit B) and Claim Form
(Exhibit A) to each Class Member who is not included on Exhibit E
("FLSA Subgroup"). The Class Members who are part of the FLSA
Subgroup will also be mailed a Notice (Exhibit F).
The Class Members, other than the FLSA Subgroup, have 90 days
following mailing of the Notice and Claim Form to mail a
fully-completed and signed Claim Form to the Claims Administrator.
The members of the FLSA Subgroup will not be required to submit a
Claim Form in order to participate in the settlement.
Any Class Member who wants to be excluded from the Settlement must
mail a request for exclusion to the Claims Administrator no later
than 90 days following mailing of the Notice. Any Class Member who
objects to the Settlement must file with the Court and serve on the
Class Counsel, the Defendant's counsel, and the Claims
Administrator, his or her objection no later than 90 days following
mailing of the Notice.
A final approval hearing will be held on Nov. 4, 2020 at 10:00 a.m.
by videoconference (the courtroom administrator may be contacted
for details).
A full-text copy of the District Court's June 30, 2020 Order is
available at https://bit.ly/3nV3bt2 from Leagle.com.
ZERO LOUNGE: Suriel Sues Over Restaurant Staff's Unpaid Wages
-------------------------------------------------------------
EDILANYI MABELL SURIEL MONTE DE OCA, individually and on behalf of
all similarly situated employees of ZERO LOUNGE RESTAURANT, INC. v.
AGAPITO DELA CRUZ; DOMINGO ESPINAL; LUISA MARTINEZ; MIGUEL ACOSTA,
JR.; ZERO LOUNGE RESTAURANT, INC. d/b/a "O'SIDE RESTAURANT &
LOUNGE"; JOHN DOE 1-10; and ABC CORP's. 1-5, Case No. 1:20-cv-08442
(S.D.N.Y., Oct. 9, 2020), is a class action against the Defendants
for violations of the Fair Labor Standards Act and New York Labor
Law.
The Plaintiff accuses the Defendants of failure to compensate the
Plaintiff and all others similarly situated employees appropriate
minimum wages and overtime pay, illegal tip retention, failure to
provide meal breaks, failure to maintain accurate payroll records,
and failure to provide itemized wage statements.
The Plaintiff worked as a waitress at the Defendants' restaurant
from October 26, 2017, until November 11, 2019.
Zero Lounge Restaurant, Inc., owns and operates a restaurant under
the name O'Side Restaurant & Lounge located at 1472 Ogden Avenue,
in Bronx, New York.[BN]
The Plaintiff is represented by:
William H. Grae, Esq.
LAW OFFICES OF HERIBERTO J. RODRIGUEZ, PLLC
1410 White Plains Rd.
Bronx, NY 10462
Telephone: (718) 792-7100
E-mail: Attorney@bx-ny.com
WH@Grae.law
Asbestos Litigation
ASBESTOS UPDATE: Final Court Judgments Imposed on Cutler and Davis
------------------------------------------------------------------
Wyoming News Now reports that federal courts have imposed final
judgments on two defendants in connection with the unlawful release
of asbestos during a commercial renovation project in Cheyenne in
2015. The project involved the building at 2100 Pioneer Avenue,
which Dr. Richard S. Cutler had purchased for use as a dental
office. Despite a prior inspection that confirmed the presence of
asbestos in the building, Dr. Cutler's contractor, Jacob Lee Davis,
began renovation work at the building without conducting proper
abatement or taking various other measures required by federal law
and regulations. A subsequent investigation by the United States
Environmental Protection Agency (EPA) confirmed several workers had
been exposed or potentially exposed to asbestos during the
renovation project.
"The results in these cases demonstrate the Department of Justice's
commitment to protecting public health and safety," said U.S.
Attorney Mark A. Klaassen. "The defendants in these cases caused
asbestos to be released, which presented a serious health threat to
workers," said Assistant Special Agent in Charge Lance Ehrig of
EPA's Criminal Investigation Division, Denver Area Office. "The
prosecutions in these cases further demonstrate EPA's commitment to
the protection of human health and the environment," Ehrig said.
The United States Attorney's Office for the District of Wyoming
prosecuted Davis and Dr. Cutler in related federal cases.
Ultimately, Davis pled guilty to knowingly violating and causing
others to violate asbestos work practice standards,in violation of
18 U.S.C. Section 2(b) and 42 U.S.C. Section 7413(c)(1).
On June 9, 2020, the Honorable Scott W. Skavdahl sentenced Davis to
three years of supervised probation, a US$9,000 fine, and a US$100
special assessment.
On September 8, 2020, the court amended Davis' judgment to reflect
his agreement to pay US$2,225 restitution. Meanwhile, Dr. Cutler
pled guilty to negligently causing the release of asbestos, in
violation of 18 U.S.C. Section 2 and 42 U.S.C. Section 7413(c)(4).
On August 26, 2020, the Honorable Kelly H. Rankin sentenced Dr.
Cutler to three years of supervised probation, a US$25,000 fine,
US$2,225 restitution, and a US$25 special assessment. As a
condition of probation, each defendant must perform 120 hours of
community service.
Asbestos is a hazardous air pollutant, and even short-term exposure
can increase a person's risk of health complications. Federal law
and regulations impose various obligations on persons responsible
for a demolition or renovation project at a facility containing
asbestos, depending on the type and quantity of asbestos involved.
In Wyoming, these obligations may include providing written notice
to the Wyoming Department of Environmental Quality (DEQ) at least
10 working days before disturbing material that contains asbestos.
Any owner or contractor with questions about an asbestos-related
project is encouraged to contact DEQ for more information.
ASBESTOS UPDATE: US Navy Veteran Wins $2.5MM Verdict vs. Metalclad
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Brendan Pierson, writing for Reuters, reports that a California
jury has awarded more than US$2.5 million to a retired U.S. Navy
admiral who said he developed mesothelioma as a result of exposure
to asbestos during his service in a case against insulation maker
Metalclad Insulation Corp, though the award is likely to be sharply
reduced in light of previous settlements with other parties.
The verdict for Ronald Wilgenbusch and his wife, Judith
Wilgenbusch, followed a trial conducted largely over the
videoconferencing platform Zoom in the Superior Court of
California, County of Alameda, one of a handful of such trials
since the beginning of the COVID-19 pandemic. Metalclad had sought
a mistrial in light of irregularities related to Zoom.
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