/raid1/www/Hosts/bankrupt/CAR_Public/210120.mbx
C L A S S A C T I O N R E P O R T E R
Wednesday, January 20, 2021, Vol. 23, No. 9
Headlines
A PLACE FOR MOM: Class Settlement in Pine Suit Gets Final Nod
ACANDYSTORE.COM: Jaquez Files ADA Suit in S.D. New York
AEI PAINTING: Arias FLSA Suit Seeks to Certify Class of Painters
AFTRA RETIREMENT: Fails to Secure Consumers' Info, A.A. Claims
ALLEN BEARD: District Court Junks Jerome Woods' Class Action
ALTA HOSPITALS: Aguilar Sues Over Unpaid Wages and Retaliation
AMAZON.COM: Faces Class-Action Lawsuit Over Ebook Pricing
AMERICAN SOCIETY: Baker Files Suit in Arizona
ANNE ARUNDEL CCC: District of Maryland Dismisses Student C Suit
AVALANCHE CONSTRUCTION: Denied Workers Overtime Pay, Breaks
BABY BREZZA: Rules Tolling Reply Deadline in Borgese Suit Confirmed
BANKERS TRUST: Suit Seeks Initial Approval of Settlement Deal
BAXTER INT'L: Securities Class Suit Dismissed Without Prejudice
BAYER CROPSCIENCE: Monopolizes Crop Input Market, Piper Suit Says
BCBSM INC: Bid for Class Certification Tossed in J.P. ERISA Suit
BEMIS CO: New York Court Dismisses Securities Suit With Prejudice
BLACKBAUD INC: Atwood Class Suit Transferred to D. South Carolina
BLACKBAUD INC: Mitchell Files Suit in D. South Carolina
BOEING COMPANY: Wins Bid to Dismiss Christensen Negligence Suit
BORAL LIMITED: Faruqi & Faruqi Announces Securities Class Action
CD PROJEKT: Pomerantz Law Announces Securities Class Action
CHARTER COMMUNICATIONS: Wojtowicz Files Suit in Connecticut
CITY NATIONAL BANK: Carter Files Suit in W.D. Oklahoma
COMMUNITY BANK: Suit Seeks Initial Approval of Class Settlement
CORECIVIC INC: Bid to Reconsider April 1, 2020 Order Tossed
CORIANT OPERATIONS: Court Narrows ERISA Claims in McCutchan Suit
DAP PRODUCTS: Wins Bid to Dismiss Fraud Suit Initiated by Ehlis
DEXTER-RUSSELL INC: Paguada Files ADA Suit in S.D. New York
DISTRICT OF COLUMBIA: Pappas Suit Dismissed With Leave to Amend
DOLE FOOD: Denial of Bid to Vacate Order Dismissing Chaverri Upheld
ESCOBAR CONSTRUCTION: Perez Counsel Affirms Collective Cert. Bid
ESCOBAR CONSTRUCTION: Perez Seeks FLSA Collective Action Status
EVERGREEN FREEDOM: Huntsman Files TCPA Suit in E.D. Washington
EXTENDICARE INC: Faces COVID-19 Class Action Over Negligence
FACEBOOK INC: Monopolizes Social Advertising Market, Layser Claims
FACEBOOK INC: Nearly 1.6MM Illinois Users to Get About $350 Each
FAST AUTO: Appeals Court Affirms Arbitration Denial in Maldonado
FCI OAKDALE: Steven Rast Suit Seeks to Certify Class of Prisoners
FIAT CHRYSLER: Distribution of Koopman Settlement Funds Granted
GEICO GENERAL: Plaintiffs Ask Court to Amend Reply Brief
GOODRX HOLDINGS: Levi & Korsinsky Reminds of February 16 Deadline
GOOGLE LLC: Kavulak Sues Over App Market Monopoly
GOPLUS CORP: Arbitration Ruling as to McLane's PAGA Claim Affirmed
GTT COMMUNICATIONS: Federman & Sherwood Reminds of Mar. 15 Deadline
GTT COMMUNICATIONS: Frank Roth Sues Over Drop in Share Price
GTT COMMUNICATIONS: Portnoy Law Announces Securities Class Action
GTT COMMUNICATIONS: Rosen Law Reminds Investors of Mar. 15 Deadline
GTT COMMUNICATIONS: Schall Law Reminds of March 15 Deadline
HAYT & HAYT: Settlement Deal Gets Final Approval in Barenbaum Suit
HINJUDA GLOBAL: McCarthy Sues Over Call Center Staff's Unpaid Wages
HOME DEPOT: Asks Court to Continue Class Certification Dates
HUDSON HALL: New York Court Refuses to Reconsider Order in Stewart
INNOCOLL HOLDINGS: Class Certification Bid Mooted w/o Prejudice
INVITATION HOMES: McCumber Files Suit in Maryland
JBS SA: $24.5 Million Pork Price-Fixing Settlement Gets Early OK
JOHN VARVATOS: N.Y. Court Denies Bid for Judgment in Knox EPA Suit
JT ENTERPRISES: Faces Gill Suit Over Unpaid Wages for Caregivers
KROGER COMPANY: 9th Cir. Appeal Filed in Hawkins Mislabeling Suit
LEXINGTON LAW: Moore Files TCPA Suit in Utah
LINCOLN LIFE: VLF's Class Cert. Filing Deadline Extended to June 7
LOCAL ADVANTAGE: Fabricant Sues Over Unsolicited Telephone Calls
LONGCAP LAMSON: Paguada Files ADA Suit in S.D. New York
MACMILLAN PUBLISHERS: Simoni Sues Over Fraudulent Sale of E-Books
MARRIOTT INTERNATIONAL: Martin Suit Seeks Class Action Settlement
MDL 2873: Womack Alleges Injury From Exposure to Toxic AFFF
MDL 2875: Bids to Dismiss Liability Suit Over BP Drugs Partly OK'd
MDL 2985: Apple Seeks Consolidation of Six Actions to N.D. Cal.
MIDLAND CREDIT: Collins Seeks to Certify Class of Consumers
MIDLAND CREDIT: Pacifico FDCPA Suit Removed to E.D. New York
MIDLAND CREDIT: Peters Files FDCPA Suit in M.D. Florida
MIDWESTERN AUTO: Binder FLSA Suit Seeks to Certify Employees Class
MONARCH FUNDING LLC: Fabricant Slams Illegal Telemarketing Calls
NEW JERSEY: Petition for Writ of Habeas Corpus Filed in Goodchild
NEW YORK: Court Directs Nugent, Others to File IFP and PLRA Forms
NOBLE ENERGY: Galindo Sues Directors for Breach of Fiduciary Duties
NUDGE LLC: JLR Suit Stayed Pending Lift of Preliminary Injunction
NVIDIA CORP: Arbitration & Dismissal Order in LeBoeuf Suit Affirmed
O.J. SMITH FARMS: Combined Class & Collective Certification Granted
OPA-LOCKA, FL: Court Allows Class-Action Lawsuit On Water Bills
PARAMED INC: McKenzie Lake Announces Securities Class Action
PASCHALL TRUCK: Carter Parties to Confer on 2019 Accord Enforcement
PEABODY ENERGY: Labaton Named Lead Counsel in Oklahoma FPRS Suit
PEANUT SHELLERS: Court Certifies Runner Peanuts Antitrust Lawsuit
PILLPACK LLC: Williams' Bid to Certify Class Deferred to Feb. 5
PNC BANK: 4th Cir. Appeal Filed in Lyons Consumer Credit Suit
POLARIS INDUSTRIES: Guzman Suit Seeks to Certify Class & Subclass
QIWI PLC: Robbins Geller Rudman Reminds of February 9 Deadline
RECON OILFIELD: Joint Bid for Collective Conditional Status Filed
RICOH USA: Class Cert. Filing Deadline Continued to March 16
RISE DEVELOPMENT: Faces Morales Wage-and-Hour Suit in E.D.N.Y.
RLI INSURANCE: Denied Coverage of Business Interruption Claims
ROPER ST. FRANCIS: Stanley Sues Over Unpaid Wages, Termination
SARASOTA COUNTY, FL: Bid to Dismiss Grames Class Suit Granted
SAUNDRA THURMAN-CUSTIS: LaCaprucia Case Trial Set for Feb. 14
SHENANDOAH VALLEY: Summary Judgment in Latino UACs Suit Reversed
SIERRA MOUNTAIN: Perez Wins Bid to Remand Suit to State Court
SM ENERGY: CRC Class Action Settlement Wins Initial Approval
SOLARWINDS CORP: Faruqi & Faruqi Reminds of March 5 Deadline
SOUTHSTAR CAPITAL: Adegbola Files Suit for Wrongful Termination
SPEEDY CASH: Ct. Enters Scheduling Order Through Class Cert.
SPLUNK INC: Portnoy Law Reminds of February 2 Deadline
SPROUT CHILDREN: Angeles Files ADA Suit in S.D. New York
SRI HARTIMAA: Faces Mohammad Wage-and-Hour Suit in E.D. New York
SUSHI OTA: S.D. California Narrows Claims in Cota ADA Class Suit
TCF ENERGY: Perrong Files TCPA Suit in N.D. Georgia
TESLA INC: Faces Fish Suit Over Defective Vehicle Battery Packs
TEX CHEVROLET: Harris Files TCPA Suit in Arizona
TRAVIS CREDIT: Judgment on Pleadings Bid in Stoutt TCPA Suit Denied
TRICIDA INC: Glancy Prongay Reminds Investors of March 8 Deadline
TRU TOP: Wolchko Files Suit in Arizona Over TCPA Violation
UNEQUAL TECHNOLOGIES: Paguada Files ADA Suit in S.D. New York
UNITED STATES: Brian Broadfield Seeks to Certify Class of Prisoners
UNITED STATES: Ernest Riley Suit Seeks Class Action Certification
UNITED STATES: Morton & Ayala's Bid to Intervene in Scholl Denied
UNITED STATES: Vangala Class Cert. Proceedings Stayed Until Feb. 15
UNIVERSITY OF PENNSYLVANIA: Suit Seeks to Certify Settlement Class
UPS SUPPLY: Ayala & Aviles Seek to Certify Class of Employees
US FOODS: Morris, et al., Directed to File Class Cert. by Jan. 22
USANA HEALTH: Lacasse's Motion to Remand to State Court Granted
V & O MONTALVAN: Faces Giron Wage-and-Hour Suit in E.D.N.Y.
VALERY SWEENY: Molina Sues Over Failure to Pay Overtime Wages
VELOCITY INVESTMENTS: Jackson Suit Trial-Related Deadlines Stayed
VELOCITY INVESTMENTS: Summary Judgment in Massaro Suit on Hold
VIPKIDS INTERNATIONAL: Meehan Labor Suit Removed to E.D.N.Y.
WALMART STORES: Lisowski Appeals Order in Consumer Suit to 3rd Cir.
WEST ROAD: Calhoun Has Until May 14 to File Class Certification Bid
WESTERN REFINING: Class Cert. Bid Deadline Continued to June 21
ZIP CAPITAL: Smith Files TCPA Suit in C.D. California
*********
A PLACE FOR MOM: Class Settlement in Pine Suit Gets Final Nod
-------------------------------------------------------------
The U.S. District Court for the District of Washington grants the
deferred portion of the Plaintiff's unopposed motion for final
approval of class action settlement in the lawsuit titled KEVIN
PINE, individually and on behalf of all others similarly situated
v. A PLACE FOR MOM, INC., Case No. C17-1826 TSZ (W.D. Wash.).
In the matter, the Settlement Class, as defined by the Order
entered December 5, 2019, was divided into two groups; the
remaining issues in this matter involve only Group 1. The
Settlement Administrator, Kurtzman Carson Consultants LLC and its
division known as KCC Class Action Services, had been directed to
send notices to individuals in Group 1 via U.S. mail. The
Settlement Administrator successfully did so with respect to 46,384
of the 62,247 members of Group 1. With respect to another 6,662
individuals in Group 1, for whom no postal address was available,
the Settlement Administrator distributed notices via email.
Through inadvertence, however, as of the date of the hearing
conducted on October 1, 2020, the purpose of which was to consider
whether to approve the proposed class action settlement, at least
9,201 members of Group 1 had not received notice via either
postcard or email. The Court, therefore, directed the Settlement
Administrator to engage in further efforts to provide notice to
such persons.
The Settlement Administrator has now reported as follows. Of the
9,201 individuals who did not previously receive notice, 81 are
deceased, and another 205 could not be reached via U.S. mail,
email, or social media. All other members of Group 1 have received
direct notice via one method or another, reflecting a success rate
of 99.67%, when the deceased persons are excluded from the
calculation (i.e., service effected as to 61,961 of 62,166
individuals). The post-hearing round of notices has resulted in at
least 99 additional members of Group 1 being eligible to receive a
share of the settlement proceeds.
Prior to the extended deadline set by the Court, December 7, 2020,
the Settlement Administrator received no additional exclusions
forms and no further objection to the proposed settlement. In light
of the results of the Settlement Administrator's supplementary
attempts to notify all persons in Group 1 of the proposed
settlement, the Court orders as follows:
(1) The deferred portion of the Plaintiff's unopposed motion for
final approval of class action settlement is granted;
(2) The Court finds that, to the extent possible, notice was
disseminated to all members of the Settlement Class. The Court
further concludes that the notice plan outlined in the Preliminary
Approval Orders, as supplemented by the Order entered October 22,
2020, with which the Settlement Administrator has fully complied,
provided the "best notice that is practicable under the
circumstances," see Fed. R. Civ. P. 23(c)(2)(B), and comports with
the requirement of due process;
(3) The Court approves the Amended Settlement Agreement and
Release executed by Class Representative Kevin Pine and Defendant A
Place for Mom, Inc., finds that the Settlement Agreement
memorializes a fair, reasonable, and adequate settlement as to all
the Settlement Class members in accordance with Federal Rule of
Civil Procedure 23, and directs that the Settlement Agreement be
Consummated pursuant to its terms and conditions;
(4) The claims of each Settlement Class member that were or
could have been asserted in the action are dismissed with
prejudice, and the release of claims set forth in the Settlement
Agreement will have binding effect, provided, however, that the
individuals identified in Exhibit D to the Declaration of Victoria
Fellner, who have opted out of the Settlement Class, are not bound
by the dismissal or the terms of the Settlement Agreement and will
not receive any of the proceeds of the settlement;
(5) In light of Paragraph 4, the Defendant's motion for
supplemental briefing concerning any exclusion of individuals in
Group 1 to whom notice could not be delivered, is stricken as
moot.
(6) The deferred portion of the Plaintiff's unopposed motion for
attorney's fees, costs, and service awards is granted. The Class
Counsel, Lieff Cabraser Heimann & Bernstein, LLP, Mason Lietz &
Klinger LLP, Hussin Law Firm, and Frank Freed Subit & Thomas LLP,
are collectively awarded $1,500,000 in attorneys' fees and
$55,080.60 in costs. The Court concludes that the attorneys' fees
and costs are fair and reasonable in light of the work performed,
the results achieved, and the purposes of the Telephone Consumer
Protection Act, pursuant to which the action was brought;
(7) Pursuant to the parties' agreement, and no objection having
been made by a member of the Settlement Class, the Electronic
Frontier Foundation is designated as the cy pres beneficiary. Any
proceeds of the Settlement Fund that remain after 180 calendar days
from the date on which order and judgment -- the last check for a
Settlement Award was issued will be paid to the Electronic Frontier
Foundation;
(8) The Preliminary Approval Orders and the Order entered
October 22, 2020, are incorporated herein by reference;
(9) The Clerk is directed to send a copy of the Order and
Judgment to all the counsel of record and to close the case.
A full-text copy of the Court's Order and Judgment dated Jan. 11,
2021, is available at https://tinyurl.com/y32kzutu from
Leagle.com.
ACANDYSTORE.COM: Jaquez Files ADA Suit in S.D. New York
-------------------------------------------------------
A class action lawsuit has been filed against ACandyStore.com Inc.
The case is styled as Ramon Jaquez, on behalf of himself and all
others similarly situated v. ACandyStore.com Inc., Case No.
1:21-cv-00354 (S.D.N.Y., Jan. 14, 2021).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
CandyStore.com -- https://www.candystore.com/ -- offers over 1000s
of candies in bulk, low prices, with flat rate and free shipping
over $100.[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
AEI PAINTING: Arias FLSA Suit Seeks to Certify Class of Painters
----------------------------------------------------------------
In the class action lawsuit captioned as JOSE ARIAS, MERLIN IVAN
CANALES, BENJAMIN CASTRO-RAMIREZ, OSCAR CHIRINOS (a/k/a Felix
Chirinos and a/k/a Felix Hernandez-Anariva), MARTIN DUQUE-CAMACHO,
JAIRO ANTONIO GUNERA-GARCIA, KELVIN LENIN LEZAMA-CHIRINOS,
ALEXANDER MENDOZA, DARWIN NAVARRO (a/k/a JONATHAN FUNER), ANGEL
MANFREDO ORTIZ-CHIRINO, YONY JAVIER PAZ-CHIRINOS, GERMAN A.
PEREZ-SANTOS, JUAN R. PEREZ-SANTOS, SELVIN RIOS, NORIN
TERUEL-RAPALO, and JHAN VALENTIN, individually, and on behalf of
all similarly situated persons, v. AEI PAINTING CONTRACTORS, LLC,
and CHAD SKINNER, individually, Case No. 1:20-cv-00550-AT (N.D.
Ga.), the Plaintiff German Perez-Santos, along with 16 other
Painters who have joined this lawsuit as Opt-in Plaintiffs move
this Court for an order:
1. conditionally certifying a putative class of Painters
employed by Defendants AEI Painting Contractors, LLC and
Chad Skinner;
2. authorizing them to proceed as a collective action under
29 U.S.C. section 216(b) on behalf of Plaintiffs and other
similarly situated employees and former employees;
3. directing AEI Painting to provide Plaintiffs' counsel with
contact information for the putative collective class to
facilitate notice and so that additional Painters can be
promptly notified of their right to participate in this
lawsuit; and
4. approving the form of notice to the putative collective
class.
The Court should grant conditional certification because Plaintiffs
meet the lenient standard of showing that they are similarly
situated to other Painters in their job requirements and pay
provisions, and there are other putative collective class members
who would join this lawsuit if they received notice, says the
complaint.
A copy of the Plaintiffs' motion to certify class dated Jan. 14,
2020 is available from PacerMonitor.com at https://bit.ly/3nVzUNI
at no extra charge.[CC]
Attorneys for Plaintiffs and Collective Action Members, are:
Randall D. Grayson, Esq.
DELCAMPO & GRAYSON, LLC
5455 Chamblee Dunwoody Road
Atlanta, GA 30338
Telephone: (770) 481-0444
Facsimile: (770) 395-0806
E-mail: rgrayson@dcglawfirm.com
The Defendants are represented by
J. Daniel Cole, Esq.
Dustin Crawford, Esq.
PARKS, CHESIN & WALBERT, P.C.
75 14th Street, 26th Floor
Atlanta, GA 30309
E-mail: dcole@pcwlawfirm.com
dcrawford@pcwlawfirm.com
AFTRA RETIREMENT: Fails to Secure Consumers' Info, A.A. Claims
--------------------------------------------------------------
A.A., a minor, by and through his natural parent, STEVE ALTES, PAUL
BRIGHT and BILLY CHOI, on behalf of themselves and all others
similarly situated v. AFTRA RETIREMENT FUND, Case No.
1:20-cv-11119-UA (S.D.N.Y., Dec. 31, 2020) arises from AFTRA's
failure to properly secure and safeguard personal identifiable
information (PII) of the Plaintiffs and the class of consumers,
including without limitation, names, Social Security numbers,
addresses and dates of birth.
On or about February 25, 2020, AFTRA notified the state Attorneys
General and many of its fund participants about a widespread data
breach involving sensitive PII of certain current and former plan
members of the SAG-AFTRA Health Plan.
According to the complaint, the PII was compromised due to AFTRA's
negligent and/or careless acts and omissions and the failure to
protect consumers' data. In addition to AFTRA's failure to prevent
the Data Breach, AFTRA allegedly failed to provide timely notice to
the affected participants: it took AFTRA four months to provide
notice to the Health Plan members and over a year to notify the
AFTRA Retirement Fund members. As a result of this delayed
response, Plaintiffs and Class Members had no idea their PII had
been compromised, and that they were, and continue to be, at
significant risk to identity theft and various other forms of
personal, social, and financial harm, the suit says.
The Plaintiffs in this action were all participants of the AFTRA
Retirement Fund, not the Health Plan, and were not notified about
the Data Breach until on or about December 17, 2020.
AFTRA Retirement Fund is a retirement fund with its principal place
of business in New York City.[BN]
The Plaintiffs are represented by:
Amanda Peterson, Esq.
MORGAN & MORGAN
90 Broad Street, Suite 1011
New York, NY 10004
Telephone: (212) 564-4568
E-mail: apeterson@ForThePeople.com
- and -
John A. Yanchunis, Esq.
Ryan J. McGee, Esq.
MORGAN & MORGAN
201 N. Franklin Street, 7th Floor
Tampa, FL 33602
Telephone: (813) 223-5505
E-mail: jyanchunis@ForThePeople.com
rmaxey@ForThePeople.com
- and -
M. Anderson Berry
CLAYEO C. ARNOLD, A PROFESSIONAL LAW CORP.
865 Howe Avenue
Sacramento, CA 95825
Telephone: (916) 777-7777
E-mail: aberry@justice4you.com
ALLEN BEARD: District Court Junks Jerome Woods' Class Action
-------------------------------------------------------------
In the class action lawsuit captioned as JEROME WOODS v. J. ALLEN
BEARD, Warden, Case No. : 0:20-cv-00151-DLB (E.D. Ky.), the Hon.
Judge David L. Bunning entered an order:
1. directing the Clerk to substitute Warden J. Allen Beard as
the sole respondent in this proceeding;
2. directing the Clerk to substitute inmate Jerome Woods as
the sole petitioner in this proceeding;
3. denying Petitioner Woods's Petition for a Writ of Habeas
Corpus pursuant to 28 U.S.C. section 2241
4. dismissing and striking case from the Court's docket
The Court said, "Woods's Petition also suggests a desire for this
matter to proceed as a class action. However, he has not attempted
to define the scope of the class or the claims encompassed within
it, alleged or argued that his claims satisfy the requirements for
class certification set forth in Federal Rule of Civil Procedure
23(a)(1)-(4), or identified the type
of class action appropriate under Rule 23(b)(1)-(3). A pleading
that fails to satisfy these criteria does not warrant class
certification. See Wal-Mart v. Dukes, 564 U.S. 338, 350 (2011);
Newsom v. Norris, 888 F. 2d 371, 381 (6th Cir. 1989). The Court
will therefore direct that Woods be identified as the sole
petitioner in this proceeding."
A copy of the Court's memorandum, opinion and order dated Jan. 14,
2020 is available from PacerMonitor.com at https://bit.ly/3sN5hh8
at no extra charge.[CC]
ALTA HOSPITALS: Aguilar Sues Over Unpaid Wages and Retaliation
--------------------------------------------------------------
JACQUELINE AGUILAR v. ALTA HOSPITALS SYSTEM, LLC; ALTA LOS ANGELES
HOSPITALS, INC.; and DOES 1 to 25, inclusive, Case No. 21STCV01482
(Cal. Super., Los Angeles Cty., Jan. 13, 2021) is brought on behalf
of the Plaintiff and other similarly situated aggrieved employees
due to the Defendants' alleged violations of the California Labor
Code and the California Business and Professions Code.
Ms. Aguilar contends that the Defendants failed to compensate her
and other similarly situated aggrieved employees for all hours
worked, failed to pay minimum wages and overtime compensation,
failed to provide accurate wage statements, failed to pay wages
owed every pay period, failed to maintain accurate records, failed
to give meal and rest breaks, failed to pay wages when employment
ends, failed to reimburse business expenses, and engaged in
retaliation and wrongful constructive discharge.
Ms. Aguilar started working for Alta Los Angeles on or May 13,
2019. Her employment with the Company ended on or around October
19, 2020. She was classified as an hourly, non-exempt employee. She
initially started as a "Point of Care Coordinator" and was then
promoted to "lab supervisor."
Alta Hospitals System LLC provides healthcare services. The Company
specializes in pediatric, obstetrics, gynecology, general surgery,
orthopedic, outpatient, as well as skilled nursing and urgent care
services.[BN]
The Plaintiff is represented by:
Harout Messrelian, Esq.
MESSRELIAN LAW INC.
500 N. Central Ave., Suite 840
Glendale, CA 91203
Telephone: (818) 484-6531
Facsimile: (818) 956-1983
AMAZON.COM: Faces Class-Action Lawsuit Over Ebook Pricing
---------------------------------------------------------
Arundhati Sarkar at Reuters reports that Amazon.com Inc was slapped
with a class-action lawsuit accusing the e-commerce giant of
inflating the prices of ebooks in collusion with some publishers.
The lawsuit alleges that Amazon and the five largest U.S.
publishers, collectively called the 'Big Five', agreed to price
restraints that cause consumers to overpay for eBooks purchased
from them through a retail platform other than Amazon.com.
The lawsuit comes a day after Connecticut said it was investigating
Amazon for potential anti-competitive behavior in its business
selling digital books.
Amazon declined to comment.
About 90% of eBooks are sold through Amazon, the largest U.S.
eBooks seller, the lawsuit claimed.
Law firm Hagens Berman, bringing the case, in 2011 filed a similar
lawsuit against Apple Inc and the 'Big Five' over ebook prices.
[GN]
AMERICAN SOCIETY: Baker Files Suit in Arizona
---------------------------------------------
A class action lawsuit has been filed against American Society of
Composers, Authors and Publishers, et al. The case is styled as
Alexander C. Baker, All other similarly situated Songwriters; Adam
Bravery LLC, All other similarly situated Royalty Assignees; v.
American Society of Composers, Authors and Publishers also known
as: ASCAP; Broadcast Music Incorporated also known as: BMI; Mike
O'Neill; Erika Stallings; Unknown Parties named as Does 1-10; Case
No. 4:21-cv-00022-RM (D. Ariz., Jan. 14, 2021).
The nature of suit is stated as Other Civil Rights.
The American Society of Composers, Authors, and Publishers --
https://www.ascap.com/ -- is an American not-for-profit
performance-rights organization that protects its members' musical
copyrights by monitoring public performances of their music,
whether via a broadcast or live performance, and compensating them
accordingly.[BN]
The Plaintiffs are represented by:
G Scott Sobel, Esq.
LAW OFFICE OF G SCOTT SOBEL
1180 S Beverly Dr., Ste. 610
Los Angeles, CA 90035-1158
Phone: (310) 422-7067
Fax: (888) 863-5630
Email: gscottsobel@gmail.com
ANNE ARUNDEL CCC: District of Maryland Dismisses Student C Suit
---------------------------------------------------------------
The U.S. District Court for the District of Maryland granted the
Defendant's motion to dismiss the lawsuit captioned STUDENT "C" v.
ANNE ARUNDEL COUNTY COMMUNITY COLLEGE, Case No. SAG-20-1505 (D.
Md.).
Student "C" filed an Amended Complaint against Defendant Anne
Arundel Community College ("AACC"), alleging breach of contract,
violations of the Takings Clause of the United States Constitution,
and deprivation of rights under the Maryland Declaration of Rights,
and seeking monetary damages and declaratory and injunctive relief
for himself and similarly situated individuals. AACC filed a Motion
to Dismiss all counts under Rule 12(b)(6) of the Federal Rules of
Civil Procedure, and a Motion to Strike Plaintiff's class claims.
The Plaintiff is a full-time student at AACC, who was enrolled in
in-person classes during the Spring 2020 semester. In December
2019, the Plaintiff paid $1,386 in tuition and $175 in mandatory
fees for the Spring 2020 semester. Due to the novel coronavirus
pandemic, AACC suspended classes and closed the campus on March 14,
2020. Ten days of classes were cancelled and never rescheduled.
Classes resumed remotely on April 5, 2020, but the Plaintiff and
other students were not permitted back on campus for the remainder
of the semester.
The Plaintiff contends AACC should have refunded students, who paid
tuition and fees for in-person classes but were subsequently barred
from campus in March and forced to complete the semester online.
The Plaintiff asserts AACC's failure to provide the promised
in-person, on-campus educational experience amounts to a breach of
contract and taking of private property without compensation, and
seeks monetary damages and declaratory and injunctive relief for
himself and similarly situated students.
AACC first asserts that the Plaintiff's claims are barred by
sovereign immunity. AACC further argues the Plaintiff's claims must
otherwise be dismissed because he fails to plead a cause of action
that is factually plausible and legally cognizable under Maryland
law or the United States Constitution. Finally, AACC asserts that
even if the Plaintiff were permitted to proceed in this action as
an individual, this case does not meet the requirements of Rule 23
of the Federal Rules of Civil Procedure for a class action.
The Court ultimately concludes the Plaintiff's breach of contract
claims are barred by sovereign immunity and his remaining claims
fail to state any cognizable cause of action against AACC.
Alternatively, the Plaintiff claims AACC's decision not to refund
tuition and fees due to the changes to the Spring 2020 semester
constitutes an unlawful taking of private property under the United
States Constitution and the Maryland Constitution. The Fifth
Amendment of the United States Constitution, made applicable to the
states through the Fourteenth Amendment, bars the government from
taking private property for public use, without just compensation.
The Plaintiff separately seeks recovery under Article 24 of the
Maryland Declaration of Rights. Article 24 is the Maryland analog
to the Fourteenth Amendment and prohibits the government from,
among other acts, taking one's property without due process, citing
Ellis v. McKenzie, 457 Md. 323, 332 (2018).
The Plaintiff readily admits that his dispute with AACC is in its
essence a dispute between a proprietor and a consumer and AACC's
failure to refund tuition and fees for the Spring 2020 semester was
a business act, the decision of a proprietor.
District Judge Stephanie A. Gallagher notes that the only potential
property interests the Plaintiff identifies are those voluntarily
created by contract. The Takings Clause, however, was not meant to
protect property owners in their voluntary dealings with the
government, the Judge says, citing Arthur E. Selnick Assocs., Inc.
v. Howard Cnty. Md., 206 Md. App. 667, 702-03 (2012). Thus, the
Plaintiff cannot base his takings claim on his purported contract
rights to in-person instruction and an on-campus experience.
Judge Gallagher also notes that even if no contract existed between
the Plaintiff and AACC, the Plaintiff's takings claims would still
be incognizable since he has alleged no other taking of his
property. The only property AACC acquired from the Plaintiff was
$1,561 for tuition and fees. Once the Plaintiff voluntarily paid
AACC to register for classes, he transferred any property interest
in those specific funds to AACC, who rightfully accepted payment
before the semester began. Nothing in the Amended Complaint
suggests that the Plaintiff's "AACC account" is a trust or escrow
account in which he retains any interest in the funds. Thus, the
Plaintiff's claim that he has a property interest in the monies he
paid amounts to nothing more than a claim that he has an interest
in receiving the benefit of his bargain.
These funds were freely given by the Plaintiff and not seized by
the government, and, thus, cannot be the basis for a takings claim,
Judge Gallagher opines. Because the Plaintiff has identified no
private property interest that can support his takings and
deprivation of rights claims, Counts V, VI, IX, and X will be
dismissed.
For the reasons set forth in the Court's Memorandum Opinion, the
Plaintiff's Contract claims in Counts I and II, Takings claims in
Counts V and VI, and Deprivation of Rights claims in Counts IX and
X are dismissed without prejudice. Because he has stated no valid
substantive claim, the Plaintiff's requests for declaratory and
injunctive relief, Counts VII and VIII, are also dismissed.
Therefore, AACC's Motion to Dismiss is granted, and AACC's Motion
to Strike is denied as moot. The case will be closed, subject to
reopening if the Plaintiff seeks leave to amend within 30 days of
the date of the Court's Opinion.
A full-text copy of the Court's Memorandum Opinion dated Jan. 11,
2021, is available at https://tinyurl.com/y27b6oxz from
Leagle.com.
AVALANCHE CONSTRUCTION: Denied Workers Overtime Pay, Breaks
-----------------------------------------------------------
Elvis Martinez and Ernesto Vera, on behalf of themselves and all
others similarly situated, Plaintiffs, v. Avalanche Construction
Group Inc, A&P Quality Construction Inc., Trident General
Contracting LLC, and Artur Wilk, Defendants, Case No. 20-cv-11065
(S.D. N.Y. December 30, 2020), seeks unpaid wages and unpaid
overtime wages in violation of the Fair Labor Standards Act and New
York labor law.
Defendants are engaged in various commercial and residential
construction in and/or around New York City, primarily in
Manhattan. Plaintiffs are all construction workers involved in
demolition, bricklaying, scaffolding and cement work.
According to the complaint, the Defendants would require Plaintiffs
to clean up and remove debris from the job sites, requiring an
additional 30 minutes or so of work. Their Saturday work usually
involved an extra 30 minutes per day. They regularly worked a
minimum of 9 hours per day Monday through Friday. However, they
were not given uninterrupted meal breaks of thirty minutes.
Defendants also regularly shaved hours off of their total hours
worked per week. Plaintiffs were also denied one and one-half times
their regular hourly rate of pay for the hours they worked in
excess of forty hours per week and Defendants failed to keep
accurate and sufficient time records, the complaint adds. [BN]
Plaintiff is represented by:
David Harrison, Esq.
HARRISON, HARRISON & ASSOCIATES
110 State Highway 35, 2nd Floor
Red Bank, NJ 07701
Tel: (718) 799-9111
Fax: (718) 799-9171
Email: dharrison@nynjemploymentlaw.com
BABY BREZZA: Rules Tolling Reply Deadline in Borgese Suit Confirmed
-------------------------------------------------------------------
In the case, JON BORGESE, Individually and as Guardian of LB., and
on Behalf of All Others Similarly Situated, Plaintiffs, v. BABY
BREZZA ENTERPRISES LLC; THE BETESH GROUP; and THE BETESH GROUP
HOLDING CORPORATION, INC., Defendants, Case No. 20 Civ. 1180 (VM)
(S.D. N.Y.), Judge Victor Marrero of the U.S. District Court for
the Southern District of New York confirmed that Rule II(B) of the
Court's Individual Rules of Practice tolls the deadline to answer
or otherwise respond to the Complaint upon submission of pre-motion
letters.
The Complaint in the putative class action was filed on Feb. 12,
2020. Pursuant to the Court's Individual Rules of Practice, the
counsel for the Defendants submitted a pre-motion letter to dismiss
the Complaint via e-mail to chambers on April 23, 2020. The
Plaintiff submitted a responsive letter via e-mail to chambers on
April 30, 2020.
Since then, the parties have filed several joint stipulations
extending the time to answer or otherwise reply to the Complaint.
A full-text copy of the Court's Jan. 12, 2021 Order is available at
https://tinyurl.com/y59pwzsf from Leagle.com.
BANKERS TRUST: Suit Seeks Initial Approval of Settlement Deal
-------------------------------------------------------------
In the class action lawsuit captioned as SHELA M. BLACKWELL and JO
ANN BATTIESTE, on behalf of the Sta-Home Health & Hospice, Inc.
Employee Stock Ownership Plan, and on behalf of a class of all
other persons similarly situated, v. BANKERS TRUST COMPANY OF SOUTH
DAKOTA, a South Dakota Limited Liability Corporation, Case No.
3:18-cv-00141-KHJ-FKB (S.D. Miss.), the Plaintiffs ask the Court to
enter an order:
a. granting preliminary approval of the Settlement Agreement;
-- The Parties have settled this Employee Retirement
Income Security Act (ERISA) class action for a payment
of $5,000,000.
b. certify the Settlement Class for settlement purposes,
defined as:
"All persons who, at any time, were vested participants in
the StaHome Health & Hospice, Inc. Employee Stock
Ownership Plan and the beneficiaries of such
participants."
-- Excluded from the Settlement Class are the Selling
Shareholders and their immediate families, the
directors of Sta-Home (other than non-Selling
Shareholder directors who were employees of Sta-Home),
and legal representatives, successors, and assigns of
any such excluded persons.
c. appointing the Plaintiffs as Class Representatives;
d. appointing their Counsel as Class Counsel;
e. approving the proposed Class Notice;
f. appointing CPT as the Settlement Administrator;
g. approving the Plan of Allocation;
h. appointing CPT as Escrow Agent; and
i. setting a date for a Fairness Hearing.
This is a proposed class action brought on behalf of participants
and beneficiaries of the Sta-Home Health & Hospice, Inc. Employee
Stock Ownership Plan (Plan). The Complaint alleges that the
Defendant, Bankers Trust, in its capacity as trustee, violated
ERISA in connection with the purchase of shares of Sta-Home Health
& Hospice, Inc. (Sta-Hom) common stock by the Plan in 2014 (the
ESOP Transaction). Specifically, the Plaintiffs allege that Bankers
Trust violated ERISA section 406, 29 U.S.C. section 1106, because
it engaged in a prohibited transaction under ERISA by causing the
Plan to purchase the shares of Sta-Home stock, causing the Plan to
borrow money from StaHome for that purchase, acting for the benefit
of Sta-Home and its shareholders who sold their shares by approving
a purchase price for Sta-Home stock that exceeded its fair market
value, and receiving payment from Sta-Home for serving as trustee
on behalf of the Plan.
Bankers Trust denies these allegations; denies any wrongdoing or
liability; and has vigorously defended itself in this Lawsuit.
Bankers Trust does not admit wrongdoing of any kind regarding the
ESOP Transaction or this Lawsuit.
A copy of the plaintiffs' unopposed motion for preliminary approval
of settlement dated Jan. 14, 2020 is available from
PacerMonitor.com at https://bit.ly/38Uz7bq at no extra charge.[CC]
The Plaintiffs are represented by:
Gregory Porter, Esq.
Ryan T. Jenny, Esq.
Patrick O. Muench, Esq.
BAILEY & GLASSER LLP
1055 Thomas Jefferson Street NW, Suite 540
Washington, DC 20007
Telephone: (202) 463-2101
Facsimile: (202) 463-2103
E-mail: gporter@baileyglasser.com
rjenny@baileyglasser.com
pmuench@baileyglasser.com
- and -
W. Eric Stracener, Esq.
W. Andrew Neely, Esq.
STRACENER & NEELY PLLC
304 N. Congress St.
Jackson, MS 39201
Telephone: (601) 206-0885
E-mail: eric@sn-law.net
andrew@sn-law.net
BAXTER INT'L: Securities Class Suit Dismissed Without Prejudice
---------------------------------------------------------------
In the case, IN RE BAXTER INTERNATIONAL INC. SECURITIES LITIGATION,
Case No. 19 C 7786 (N.D. Ill.), Judge Sara L. Ellis of the U.S.
District Court for the Northern District of Illinois, Eastern
Division, grants the Defendants' motion to dismiss and their motion
to consider the exhibits attached to their motion to dismiss.
An individual shareholder brought the putative securities class
action lawsuit on behalf of himself and all others who purchased or
acquired common stock in Baxter from Feb. 21, 2019, through Oct.
23, 2019, alleging that Baxter and certain of its officers engaged
in federal securities fraud.
After the Court appointed putative class members Varma Mutual
Pension Insurance Co. and Louisiana Municipal Police Employees'
Retirement System ("LAMPERS") as the Lead Plaintiffs, they filed an
amended complaint, in which they allege that Defendants Baxter,
Jose Almeida, and James Saccaro violated sections 10(b) and 20(a)
of the Securities Exchange Act of 1934, codified at 15 U.S.C.
Sections 78j(b) and 78t(a), and SEC Rule 10b-5, 17 C.F.R. Section
240.10b-5.
Varma is based in Finland and manages the pension savings for
approximately 900,000 Finns. LAMPERS is a statewide retirement
system that provides retirement, disability, and survivor benefits
to full-time police officers in Louisiana and their families.
During the Class Period, Varma and LAMPERS last purchased Baxter
stock on September 17, 2019, and October 23, 2019, respectively.
Baxter is a Delaware corporation that maintains its principal
executive offices in Deerfield, Illinois. It develops,
manufactures, and sells a variety of renal and hospital products.
Although Baxter is a U.S.-based company, it has substantial global
operations and derives significant revenues from outside the United
States. Baxter manufactures products in more than twenty countries
and has operations in Europe, the Middle East, Africa, Asia, Latin
America, and Canada. It also sells its products in more than 100
countries. From 2017 through 2019, Baxter generated more than $33
billion in total sales, with just shy of $19 billion of those sales
(57.5%) coming from outside the United States. Baxter's common
stock trades on the New York Stock Exchange.
Almeida joined Baxter as an executive officer in October 2015 and
has served as Baxter's Chairman, President, and CEO since January
2016. Saccaro served as Baxter's Corporate Vice President and CFO
during the Class Period and as Baxter's Corporate Vice President
and Treasurer from 2011 to 2013.
The Lead Plaintiffs allege that from January 2019 through July
2019, the Defendants made a series of false and misleading
statements or omissions regarding Baxter's income and other key
financial metrics related to FX rate fluctuations, its compliance
with Generally Accepted Accounting Principles ("GAAP"), and the
adequacy and effectiveness of its internal controls over financial
reporting.
On Oct. 24, 2019 (the day after the end of the Class Period),
Baxter announced in a press release issued before the market opened
that it had recently begun investigating certain intra-company
transactions that had been undertaken to generate foreign exchange
gains or losses. These Transactions "used a foreign exchange rate
convention historically applied by" Baxter--the FX Convention--that
was not in accordance with generally accepted accounting principles
and that enabled the Transactions to be undertaken after the
related exchange rates were already known.
The material weakness in its internal controls also resulted in
Baxter restating its consolidated financial statements and other
financial data for certain time periods ("Restatement"). Baxter's
Restatement showed that in at least 2017 and 2018, it had
overstated its foreign exchange gains, which led to an
overstatement of its non-operating income, which led to an
overstatement of its net income--"the bottom line"--which led to
overstating Baxter's reported retained earnings and EPS.
From 2017 through 2019, Almeida received approximately $18.7
million in Baxter stock and $15.2 million in Baxter stock options
under Baxter's "Long Term Incentive Program" and approximately $7.2
million in cash bonuses under Baxter's "Annual Incentive Program."
Over the same time frame, Saccaro received approximately $9.2
million in stock, $3.8 million in stock options, and $2.5 million
in cash bonuses under the same programs. This compensation was
based, at least in part, on financial metrics that were
artificially inflated by Baxter's use of the FX Convention to
manufacture FX gains and avoid losses.
After the Restatement, however, Baxter recouped $1.1 million from
Almeida's 2019 cash bonus and just over $500,000 from Saccaro's
2019 cash bonus to conform their bonuses paid for 2015 through 2018
to the performance Baxter actually achieved. Baxter further
reduced Saccaro's 2019 cash bonus by nearly $165,000 to account for
the Restatement and the material weakness in Baxter's internal
controls over financial reporting. As a result of these
reductions, Saccaro received no cash bonus for 2019.
The Lead Plaintiffs' amended complaint sets forth two claims.
First, they allege that all Defendants--Baxter, Almeida, and
Saccaro--have violated Section 10(b) of the Exchange Act and SEC
Rule 10b-5 by engaging in misconduct that artificially inflated the
price of Baxter's common stock and maintained the artificially
inflated prices, caused the Lead Plaintiffs and the other class
members to purchase the stock at artificially inflated prices, and
then concealed Baxter's true condition from the investing public
("Section 10(b) claim"). Second, they seek to hold Almeida and
Saccaro individually liable under Section 20(a) of the Exchange Act
as "controlling persons" of Baxter ("Section 20(a) claim").
The Defendants move to dismiss the amended complaint. They also
move to have the Court consider exhibits they attach to their
motion to dismiss based on the incorporation-by-reference doctrine
or judicial notice.
The Lead Plaintiffs do not oppose the Defendants' request for
consideration of their exhibits, and the Court may take judicial
notice of or otherwise consider these exhibits in deciding the
Defendants' motion to dismiss, so Judge Ellis grants the
Defendants' motion to consider their exhibits. And because the
Lead Plaintiffs have failed to allege facts that give rise to a
strong inference of scienter on the part of any Defendant, the
Judge grants the Defendants' motion to dismiss. The dismissal,
however, is without prejudice.
First, the Judge considers whether the Lead Plaintiffs have
sufficiently pleaded Almeida's and Saccaro's scienter. Then, she
addresses whether the Lead Plaintiffs have sufficiently pleaded
Baxter's scienter. Looking collectively at all the alleged facts
discussed above, the Court concludes that Lead Plaintiffs have
failed to plead facts giving rise to a strong inference of scienter
on either Almeida's or Saccaro's part.
Notably missing from the Lead Plaintiffs' amended complaint,
according to the Judge, are particularized factual allegations
suggesting that when they made their challenged statements between
January 2019 and July 2019, Almeida or Saccaro knew that Baxter's
FX Convention did not comply with GAAP, that individuals at Baxter
were using the FX Convention to execute the Transactions, or that
Baxter's internal controls were inadequate and ineffective. Nor
does the amended complaint provide factual allegations from which
the Court can reasonably infer that Almeida or Saccaro were aware
of (but disregarded) other information that would give them a
reason to know about these problems.
Ultimately, the Judge opines that an inference of scienter is not
as compelling as the inference that Almeida and Saccaro did not
discover and were not reckless in failing to discover any of these
issues until at least Baxter initiated its internal investigation
in October 2019, which was after they made their allegedly false
and misleading statements. Accordingly, she dismisses the Lead
Plaintiffs' Section 10(b) claims against Almeida and Saccaro.
The Judge cannot infer Baxter's scienter based on the states of
mind of Almeida, Saccaro, or Bohaboy, and the Lead Plaintiffs'
amended complaint does not otherwise set forth allegations from
which the Court can infer corporate scienter based on unidentified
Baxter corporate officials. Thus, she also dismisses the Lead
Plaintiffs' Section 10(b) claim against Baxter.
The Lead Plaintiffs' second claim alleges that Almeida and Saccaro
violated Section 20(a) of the Exchange Act as "controlling persons"
of Baxter. Because the Lead Plaintiffs have failed to adequately
plead their Section 10(b) claims, the Judge dismisses the Lead
Plaintiffs' Section 20(a) claims as well.
For the foregoing reasons, Judge Ellis grants the Defendants'
motion to dismiss and the Defendants' motion to consider the
exhibits attached to their motion to dismiss. She also directs the
Clerk to remove Brian C. Stevens as a Defendant from the Court's
docket for this case. Because it is the Court's first dismissal of
the Lead Plaintiffs' complaint, the dismissal is without prejudice.
The Judge gives the Lead Plaintiffs 21 days to amend their amended
complaint if they can do so consistent with Federal Rule of Civil
Procedure 11 and her Opinion.
A full-text copy of the Court's Jan. 12, 2021 Opinion & Order is
available at https://tinyurl.com/yyx2eusp from Leagle.com.
BAYER CROPSCIENCE: Monopolizes Crop Input Market, Piper Suit Says
-----------------------------------------------------------------
Margy Eckelkamp at agweb.com reports that a class action complaint
was filed in the U.S. District Court for the Southern District of
Illinois by a farmer's widow on behalf of his estate.
In summary, the lawsuit alleges crop input manufacturers, large
wholesalers and retailers have created an unfair market for
farmers.
The plaintiff is Barbara Piper, the executor of the estate of her
husband, Michael Piper, who died in 2017. Michael, who went by
Mike, was a farmer in Mount Vernon, Ill. He grew row crops and was
involved in competitive tractor pulling.
Claims include: "The existing distribution process maintains
supracompetitive crop input prices by denying farmers accurate
product information, including pricing information."
The complaint names as defendants:
-- Bayer Cropscience
-- Corteva
-- BASF Corporation
-- Syngenta Corporation
-- Cargill Incorporated
-- Winfield Solutions
-- Univar Solutions
-- Federated Co-Operatives Limited
-- CHS Inc.
-- Nutrien Ag Solutions
-- Growmark Inc.
-- Simplot
-- Tenkoz
The complaint gives as an example Piper's purchase of Liberty
herbicide from Gateway FS, a retail outlet of Growmark.
The company provided this statement: "We are aware of the lawsuit
filed against a number of organizations including Growmark. It is
Growmark's policy not to comment on pending litigation."
The filing also alleges the suppliers, distributors and retailers
coordinated and cooperated together to limit the opportunity of new
entrants in the space, namely electronic platforms Farmers Business
Network and AgVend.
However, AgVend offered this statement: "AgVend has no part in the
[Piper v Bayer] lawsuit and we are exploring every legal avenue to
remove references to AgVend from it. Not only are we inaccurately
represented, we categorically deny all allegations pertaining to
AgVend in the lawsuit. On the contrary, we have long-standing
partnerships with many of the defendants and we fully support the
work they do to serve the American Grower."
FBN provided this statement: "FBN is not a party to this suit and
therefore has no comment."
The plaintiff is seeking a jury trial.
Here are statements from the named defendants:
BASF: "BASF is aware of the lawsuit filed last Friday alleging that
BASF and certain other manufacturers, distributors, and retailers
of crop inputs violated antitrust laws. BASF strongly disagrees
with the allegations in the lawsuit and intends to defend itself
vigorously. Most importantly, BASF is committed to a fair and
competitive marketplace that provides access for farmers to the
critical products they need."
Bayer: "We have not been served with the complaint and will review
it in due course. Based on information in published reports, we
believe the markets identified in this action are competitive, and
the complaint has no merit."
CHS: "We are aware of the lawsuit filed against a number of
agriculture companies including CHS. It is company policy not to
comment on pending litigation."
Corteva: "We are aware of the filing of a lawsuit filed in the U.S.
District Court for the Southern District of Illinois involving
allegations relating to the manner in which several agricultural
industry members marketed and sold products. Corteva believes that
the allegations are factually and legally unsupported and will
vigorously defend the case."
Federated Co-operatives: "We do not provide comments on active
court or legal proceedings, so we'll have to respectfully decline
this opportunity to comment.
Land O' Lakes: "We are aware that a lawsuit has been filed against
Winfield Solutions and numerous other agribusinesses. Although we
generally do not comment on pending litigation, we want to make our
priorities clear: as a 100-year old farmer owned cooperative, we
operate our business in strict compliance with applicable law and
we always put our farmer-owners first. We will continue to do so
in vigorously defending this lawsuit."
Syngenta: "Syngenta is dedicated to the support and success of our
customers, and we will vigorously defend any allegations that our
actions have been improper or illegal."
This story will be updated as more information becomes available.
AgWeb editors have reached out to the legal counsel for comment.
Sonja Begemann contributed to this article. [GN]
BCBSM INC: Bid for Class Certification Tossed in J.P. ERISA Suit
----------------------------------------------------------------
In the class action lawsuit captioned as J.P. and M.K.,
individually and on behalf of all others similarly situated, v.
BCBSM, Inc. d/b/a Blue Cross and Blue Shield of Minnesota, Case No.
0:18-cv-03472-MJD-DTS (D. Minn.), the Hon. Judge Michael J. Davis
entered an order denying the Plaintiffs' Motion for Class
Certification of:
"all persons who are covered under any Employee Retirement
Income Security Act of 1974 (ERISA)-governed health benefit
plan insured and/or administered by Blue Cross against whom
Blue Cross offset covered charges based on the following
language found in the Blue Cross plan and/or certificate of
coverage and/or summary plan description: "Payments made in
error or overpayments may be recovered by the Claims
Administrator as provided by law."
Blue Cross has identified 221 persons who have the same Payments
Made in Error Term in their SPDs and against whom Blue Cross may
have recovered an overpayment by not issuing a check on a later
claim. Collectively, Blue Cross has withheld payment of
$275,965.00, out of the $378,841.78 it has overpaid. Of those 221
persons, 51 participate in Medtronic, Inc.'s ERISA plan,
participate in Cargill, Incorporated's ERISA plan, and 2
participate in The Travelers Indemnity Company's ERISA plan. For
those 63 members, Blue Cross withheld $115,001.38. In addition to
those plan members, the proposed class includes participants in 81
other ERISA plans, for a total of 84 separate ERISA plans.
The Court holds that the Plaintiffs cannot show that they are
typical and adequate class representatives because they are subject
to major and unique defenses. The Court also holds that class
certification is inappropriate based on a lack of commonality and
typicality. The Court concludes that the Plaintiffs cannot meet the
Rule 23(a) requirements for class certification.
Bolton & Menk, Inc. self-insures an ERISA health benefit plan that
it offers to its employees and hired Defendant BCBSM, Inc. to
administer the plan. Plaintiff J.P. is an employee of Bolton &
Menk, Inc. and is covered under the plan as the subscriber or
contract holder. J.P.'s wife, M.K., and his daughter, L.P., are
also covered under the plan as beneficiaries.
A copy of the Court's memorandum of law & order dated Jan. 14, 2020
is available from PacerMonitor.com at https://bit.ly/3oXCYtL at no
extra charge.[CC]
Counsel for the Plaintiffs, are:
Charles N. Nauen, Esq.
Susan E. Ellingstad, Esq.
David W. Asp, Esq.
Jennifer L. M. Jacobs, Esq.
LOCKRIDGE GRINDAL NAUEN P.L.L.P.
100 S Washington Ave No. 2200
Minneapolis, MN 55401
Telephone: (612) 339-6900
- and -
Jordan Lewis, Esq.
JORDAN LEWIS, P.A.
4473 N.E. 11th Avenue
Fort Lauderdale, FL 33334
Telephone: (954) 616-8995
Cell: (612) 559-3660
Facsimile: (954) 206-0374
E-mail: jordan@jml-lawfirm.com
Counsel for the Defendant.
Joel Allan Mintzer, Esq.
Doreen A. Mohs, Esq.
BLUE CROSS AND BLUE SHIELD OF MINNESOTA
- and -
David M. Wilk, Esq.
LARSON KING, LLP
Wells Fargo Place
30 E 7th St No. 2800
St Paul, MN 55101
Telephone: (651) 312-6500
BEMIS CO: New York Court Dismisses Securities Suit With Prejudice
-----------------------------------------------------------------
Judge John P. Cronan of the U.S. District Court for the Southern
District of New York dismissed the case, IN RE: BEMIS CO.
SECURITIES LITIGATION, Case No. 19 Civ. 3356 (JPC) (S.D.N.Y.), with
prejudice.
The Defendants have moved to dismiss the Amended Complaint under
Rule 12(b)(6) of the Federal Rules of Civil Procedure.
Lead Plaintiff Michael Dixon brings the putative class action
against Defendants Bemis and the members of Bemis's Board of
Directors, contending that Defendants disseminated a materially
false and misleading Definitive Proxy Statement in violation of
Sections 14(a) and 20(a) of the Securities Exchange Act of 1934,
and Securities and Exchange Commission ("SEC") Rule 14a-9. The
case arises out of statements contained in the Proxy, whose purpose
was to solicit votes from Bemis shareholders in favor of a merger
between Bemis and Amcor Limited. That merger, which was ultimately
approved by Bemis shareholders, resulted in the creation of New
Amcor.
The Plaintiff filed his original complaint on April 15, 2019. On
March 10, 2020, Judge Paul G. Gardephe, to whom the case was
previously assigned, consolidated the case with Stein v. Bemis
Company Inc., No. 19 Civ. 3412 (PGG) (S.D.N.Y.) pursuant to Federal
Rule of Civil Procedure 42(a), and appointed Dixon as the Lead
Plaintiff. Approximately two months later, on May 11, 2020, the
Plaintiff filed the Amended Complaint on behalf of all Bemis
stockholders entitled to vote on the proposal to approve the
Transaction and whose Bemis common stock was exchanged for 5.1 New
Amcor shares in connection with the Transaction.
The Plaintiff's Amended Complaint alleges two counts. Count One
alleges that the Proxy disseminated by the Defendants "failed to
disclose material facts necessary in order to make the statements
made, in light of the circumstances under which they were made, not
materially false and misleading," in violation of Section 14(a) of
the Exchange Act and SEC Rule 14a-9 promulgated thereunder. The
Plaintiff alleges that the Proxy omitted material facts "about the
synergies projected to be achieved pursuant to the Transaction and
Goldman's potential conflict of interest."
Specifically, the Plaintiff alleges that the Proxy was false and
misleading because it was silent to the most important facts
concerning the basis and formulation of the Net Synergies,
including: (1) the assumptions and methodologies underlying the
projected Net Synergies; (2) the specific role, if any, played by
Bemis management, the Defendants, or Bemis' financial advisor
Goldman in the development and calculation of the projected Net
Synergies; and (3) the identity and role played by Amcor's
'third-party' consultant in the development and calculation of the
projected Net Synergies.
The Plaintiff further alleges that two declarations in the Proxy
were materially false and misleading because the Net Synergies
reflect Amcor's, not the Defendants', estimates and judgments: (1)
that the projected Net Synergies had been reasonably prepared on a
basis reflecting the best currently available estimates and
judgments of management of Bemis, and (2) that shareholders would
benefit from the net cost synergies expected to result from the
transaction, which are projected to be at least $180 million
annually (on a pre-tax basis) by the end of New Amcor's third
fiscal year.
Count Two alleges that the individual Defendants, i.e., the members
of Bemis' Board, are liable under Section 20(a) of the Exchange Act
as controlling persons of Bemis, because they had the ability to
and did exercise control over persons who violated Section 14(a)
and SEC Rule 14a-9.
The Defendants have moved to dismiss the Amended Complaint,
contending that it fails to state a Section 14(a) claim by not
alleging (1) a false or misleading statement or omission and,
alternatively, (2) loss causation. Since the Section 20 claim is
derivative of the Section 14(a) claim, the Defendants argue that
claim must be dismissed as well.
The Court heard oral argument on the Motion to Dismiss on Dec. 8,
2020.
In his Opposition to the Motion to Dismiss Count I, the Plaintiff
alleges new facts not alleged in the Amended Complaint and appears
to advance new legal theories of liability. He now claims the
Proxy was false and misleading because: (1) it fails to disclose a
pre-existing set of material projections (the Bemis Net Synergies)
that differ from those disclosed in the Proxy; (2) it fails to
disclose the basis, assumptions and rationale for the creation of
Bemis Net Synergies; (3) it contains misleading statements
concerning the basis for Bemis management's revising and abandoning
the Bemis Net Synergy projections;" and (4) it contains misleading
statements concerning Bemis' Management's opinion of and belief in
the substance of the Net Synergy Projections.
First, Judge Cronan holds that the Proxy's forward-looking
statements regarding the Net Synergies were forward-looking and are
covered by the PSLRA's safe harbor provision. Although the
Plaintiff disclaims any intent to attack the substance of the
predictions, his motion papers demonstrate that he is, at least in
part, challenging the Board's adoption of the Net Synergies as the
best predictive measure. It is exactly what the safe harbor
provision protects.
Second, when viewed under the proper standard, the Judge finds that
it is clear that the Plaintiff has pointed to no material facts
that were omitted from the Proxy that would render it false or
misleading. The Plaintiff does not point to any relevant SEC
regulation requiring disclosure of additional information not
disclosed in the Proxy, but instead broadly contends that any
misstatement or omission regarding those Net Synergy Projections is
material as a matter of law. But that is not the law.
Third, even if the Plaintiff had managed to allege an omission, his
claim that the Proxy's statement reflecting the Board's faith in
the Net Synergies was misleading would fail for another reason: It
is a protected statement of opinion, the Judge opines. There are
no facts pleaded in the Amended Complaint that allow for an
inference that these predictions were not shared by the Board, but
only speculation that Bemis "capitulated" to Amcor's estimates to
"make the Transaction more appealing."
Fourth, there is nothing in the Plaintiff's Amended Complaint--or
his Opposition--that adequately alleges that the Board omitted
information that made their opinion statements false or misleading.
There are simply no analogous facts in the Plaintiff's Amended
Complaint or his Opposition. Instead, the opinion statements that
he highlights in the Bemis Proxy were clearly forward-looking
statements expressing a belief that the projections used were based
on the best metrics available. Such statements are not
actionable.
Finally, the Judge finds it clear that the Proxy provided
significant, comprehensive disclosure of the potential conflicts of
interest that Goldman faced. The requirement that a company
disclose potential conflicts of interest is designed to warn
"stockholders to give more careful scrutiny to the terms of the
merger than they might to one recommended by an entirely
disinterested" Thus, while full disclosure of potential conflicts
of interest is required, the Proxy did just that when it disclosed
Goldman's potential conflict. The shareholders were on notice of
that potential conflict of interest and what it entailed, and the
Plaintiff fails to allege how any additional disclosures were
required.
In sum, the Judge holds that the Plaintiff fails to state a Section
14(a) claim because the statements at issue are protected by the
PSLRA's safe harbor provision; because the Plaintiff has not
pleaded an actionable omission or opinion statement; and because
the Proxy sufficiently disclosed Goldman's potential conflicts of
interest.
Because the Court finds that the Plaintiff fails to plead an
underlying Section 14(a) violation, his Section 20(a) claim also
fails.
Accordingly, for the reasons he stated, Judge Cronan granted the
Defendants' Motion to Dismiss, and dismissed the case with
prejudice. The Clerk of the Court is respectfully directed to
terminate the motion at Docket Number 22 and close the case.
A full-text copy of the Court's Jan. 12, 2021 Opinion & Order is
available at https://tinyurl.com/y3yst9vv from Leagle.com.
BLACKBAUD INC: Atwood Class Suit Transferred to D. South Carolina
-----------------------------------------------------------------
The case styled as Heide M. Atwood, individually and on behalf of
all others similarly situated v. Blackbaud Inc., Case No.
1:20-cv-01230, was transferred from the U.S. District Court for the
Eastern District of Virginia to the U.S. District Court for the
District of South Carolina on Dec. 31. 2020.
The Clerk of Court for the District of South Carolina assigned Case
No. 3:20-cv-04516-JMC to the proceeding.
The case alleges breach of contract and is assigned to the
Honorable Judge Michelle Childs.
Blackbaud, Inc. provides software and related services designed
specifically for non-profit organizations. The Company's products
and services enable non-profit organizations to increase donations,
reduce fundraising costs, improve communication with constituents,
manage their finances, and optimize internal operations.[BN]
The Plaintiff is represented by:
David Hilton Wise, Esq.
WISE AND DONAHUE PLC
10476 Armstrong Street
Fairfax, VA 22030
Telephone: (703) 934-6377
Facsimile: (703) 934-6379
E-mail: dwise@wisedonahue.com
- and -
John Joseph Drudi, Esq.
WISE LAW FIRM, PLC
10640 Page Avenue, Suite 320
Fairfax, VA 22030
Telephone: (703) 934-6377
Facsimile: (703) 934-6379
E-mail: jdrudi@wiselaw.pro
The Defendant is represented by:
David Neal Anthony, Esq.
Ryan Joseph Strasser, Esq.
TROUTMAN PEPPER HAMILTON SANDERS LLP
Troutman Sanders Bldg., 1001 Haxall Point
PO Box 1122
Richmond, VA 23219
Telephone: (804) 697-5410
Facsimile: (804) 698-5118
E-mail: david.anthony@troutman.com
ryan.strasser@troutman.com
BLACKBAUD INC: Mitchell Files Suit in D. South Carolina
-------------------------------------------------------
A class action lawsuit has been filed against Blackbaud Inc. The
case is styled as Alexandra L. Mitchell, individually and on behalf
of all others similarly situated v. Blackbaud Inc., Case No.
3:21-cv-00145-JMC (D.S.C., Jan. 14, 2021).
The nature of suit is stated as Other P.I. for Personal Injury.
Blackbaud -- https://www.blackbaud.com/ -- is a cloud computing
provider that serves the social good community--nonprofits,
foundations, corporations, education institutions, healthcare
organizations, religious organizations, and individual change
agents.[BN]
The Plaintiff is represented by:
Charles Ross Heyl, Esq.
Tammy Cauley Rivers, Esq.
MOTLEY RICE (Ch)
28 Bridgeside Boulevard
Charleston, SC 29403
Phone: (843) 216-9066
Email: rheyl@motleyrice.com
tcrivers@motleyrice.com
- and -
Marlon E Kimpson, Esq.
MOTLEY RICE
PO Box 1792
Mt Pleasant, SC 29465
Phone: (843) 216-9000
Fax: (843) 216-9440
Email: mkimpson@motleyrice.com
BOEING COMPANY: Wins Bid to Dismiss Christensen Negligence Suit
---------------------------------------------------------------
The U.S. District Court for the Northern District of Illinois
grants the Defendant's motion to dismiss in the lawsuit titled
SUSAN CHRISTENSEN, VICTORIA STILZ, WILLIAM EHLERS, CHEYENNE HAUSER,
ANGELIKA KNOEBL, NATASHA HEIDLAGE, CASSIDY DEELY and GLENN LEE v.
THE BOEING COMPANY, Case No. 20 C 1813 (N.D. Ill.).
The named Plaintiffs, on behalf of themselves and all others
similarly situated, have brought a six count putative class action
complaint against the Defendant alleging fraud by non-disclosure,
negligence, tortious interference with contractual rights and
relationship, tortious interference with an existing business
relationship, fraudulent misrepresentation, and negligent
misrepresentation, in Counts I to VI respectively.
The Plaintiffs are Southwest Airlines flight attendants. They seek
lost wages and other damages that they and approximately 17,000
other Southwest flight attendants allegedly suffered as a result of
the grounding in 2019 of the Defendant's 737 Max aircraft. The
Plaintiffs allege that the Defendant made material
misrepresentations to regulators, the Defendant's customers,
including Southwest Airlines, and the public to circumvent the
appropriate regulatory process and rush the aircraft into
production and service.
District Judge Robert W. Gettleman notes that the 72-page,
380-paragraph complaint is long on the details of the Defendant's
problems with the aircraft since it first announced its launch in
2011, Southwest Airlines' order for 150 Max aircraft in late 2011,
and its alleged efforts to hide the problems from the public. The
complaint is short, however, on how the Defendant's efforts to hide
the problems affected the individual plaintiffs, Judge Gettleman
finds.
The Defendant moved to dismiss all counts under Rules 12(b)(1),
12(b)(6), and 9(b) of the Federal Rules of Civil Procedure. In
response, the Plaintiffs have withdrawn their claims for tortious
interference with contract (Count III) and tortious interference
with existing business relationship (Count IV).
To survive such a motion, the complaint must allege sufficient
facts that, if true, would raise a right to relief the speculative
level, showing that the claim is plausible on its face. To be
plausible on its face, the complaint must plead facts sufficient
for the court to draw the reasonable inference that the defendant
is liable for the alleged misconduct. In addition, because Counts I
and IV sound in fraud, they are also subject to the heightened
requirements of Rule 9(b) of the Federal Rules of Civil Procedure,
which provides that in alleging fraud or mistake, a party must
state with particularity the circumstances constituting fraud or
mistake. The complaint must provide "the who, what, when, where,
and how" of the alleged fraud, citing DiLeo v. Ernst & Young, 901
F. 2d 624, 627 (7th Cir. 1990).
Judge Gettleman opines that the instant complaint fails as to both
requirements. It fails to allege how the Defendant's alleged
misrepresentations injured any of the named Plaintiffs in any way.
As the Defendant argues, the Plaintiffs' claims rest on the
allegation that as a group the Southwest Airlines Flight Attendants
relied on certain misstatements made in 2012 and 2013 when, in June
2013 their union entered into a new Collective Bargaining Agreement
("CBA") with the airline in which the flight attendants agreed to
"fly on and staff" the new aircraft.
As the complaint makes clear, however, the negotiations and
agreement occurred well before the Defendant had even achieved a
firm design configuration and more than a year before it began
ground testing of the engine. Nothing in the complaint suggests
that the alleged misrepresentations made in 2012 or 2013, caused
any damage to any named plaintiff or the flight attendants as a
group. And, to the extent that the claims rely on the CBA, they
cannot be based on alleged misrepresentations made after the
agreement was entered, Judge Gettleman holds.
The Plaintiffs have also failed to adequately allege legal
causation, as their alleged injuries (lost compensation) are far
too remote from the Defendant's alleged misconduct. The Plaintiffs
do not, of course, allege any connection to the two air crashes of
the 737 MAX. Instead, their claims are of the nature of a third
party who suffers no physical damage to person or property, but who
claims harm as a result of injury to the person or property of
another. Consequently, the Court concludes that the Plaintiffs have
failed to allege proximate cause.
There are, as well, other problems with the complaint, Judge
Gettleman says. Count I attempts to allege a claim for fraud by
non-disclosure. Additionally, to assert a claim based on a
fraudulent omission, the Plaintiffs must allege the existence of a
special or fiduciary relationship that would raise a duty to speak.
They have failed to plausibly do so, alleging only that the
Defendant's position in the commercial airline industry gives rise
to a special or fiduciary duty to the Plaintiffs. Judge Gettleman
points out that this allegation is deficient. A seller of an
aircraft does not share a confidential of fiduciary relationship
with the purchaser, even if the seller possesses superior knowledge
of the aircraft. Because the Defendant did not have such a
relationship with its customer, Southwest Airlines, it did not have
such a relationship with its customers' employees.
The Plaintiffs' negligence and negligent misrepresentation claims
are barred by Illinois' version of the economic loss doctrine,
Judge Gettleman opines, among other things. In Illinois it is well
settled that a plaintiff cannot recover for solely economic loss
under a negligence theory, except for certain exceptions.
Judge Gettleman holds that none of these exceptions apply to the
Plaintiffs' negligence and negligent misrepresentation claims.
First, the Plaintiffs do not allege that they sustained damages in
connection with personal injury or property damage. Next, their
negligence and negligent misrepresentation claims do not allege
intentional misrepresentations. Finally, they do not allege and the
Defendant in is not in the business of supplying information for
the guidance of others in their business dealings. It is in the
business of supplying a tangible product.
Consequently, the Plaintiffs' negligence and negligent
misrepresentations claims (Counts II and VI) fail to state
plausible claims. Hence, the Defendant's motion to dismiss is
granted.
A full-text copy of the Court's Memorandum Opinion and Order dated
Jan. 11, 2021, is available at https://tinyurl.com/y5uq8ubm from
Leagle.com.
BORAL LIMITED: Faruqi & Faruqi Announces Securities Class Action
----------------------------------------------------------------
Faruqi & Faruqi, LLP, a leading minority and certified woman-owned
national securities law firm, is investigating potential claims
against Boral Limited ("Boral" or the "Company") (OTC Pink:
BOALY).
If you suffered losses exceeding $50,000 investing in Boral stock
or options and would like to discuss your legal rights, click here:
www.faruqilaw.com/BOALY or call Faruqi & Faruqi partner James
Wilson directly at 877-247-4292 or 212-983-9330 (Ext. 1310).
On December 5, 2019, Boral revealed that it identified financial
irregularities in its North American window business, involving the
misreporting of inventory levels and raw material and labor cost at
the window plants, and was conducting an internal investigation
into the matter.
Then, on February 9, 2020, Boral revealed that its investigation
found inflated earnings at its North American window-making
business and announced that the Company had fired the division's
vice president of finance and financial controller.
On this news, the Company's stock price fell from $13.80 per share
on February 7, 2020 to $12.72 per share on February 10, 2020: a
$1.08 or 7.83% drop.
Attorney Advertising. The law firm responsible for this
advertisement is Faruqi & Faruqi, LLP (www.faruqilaw.com). Prior
results do not guarantee or predict a similar outcome with respect
to any future matter. We welcome the opportunity to discuss your
particular case. All communications will be treated in a
confidential manner. [GN]
CD PROJEKT: Pomerantz Law Announces Securities Class Action
-----------------------------------------------------------
Pomerantz LLP announces that a class action lawsuit has been filed
against CD Projekt S.A. ("CD Projekt" or the "Company") (OTCMKTS:
OTGLF; OTGLY) and certain of its officers. The class action, filed
in the United States District Court for the Central District of
California, and docketed under 21-cv-00354, is on behalf of a class
consisting of all persons and entities other than Defendants that
purchased or otherwise, acquired CD Projekt securities between
January 16, 2020 and December 17, 2020, inclusive (the "Class
Period"). Plaintiff seeks to recover compensable damages caused by
Defendants' violations of the federal securities laws under the
Securities Exchange Act of 1934 (the "Exchange Act") and Rule 10b-5
promulgated thereunder by the United States Securities and Exchange
Commission, against the Company and certain of its top officials.
If you are a shareholder who purchased CD Projekt securities during
the Class Period, you have until February 22, 2021 to ask the Court
to appoint you as Lead Plaintiff for the class. A copy of the
Complaint can be obtained at www.pomerantzlaw.com. To discuss this
action, contact Robert S. Willoughby at newaction@pomlaw.com or
888.476.6529 (or 888.4-POMLAW), toll-free, Ext. 7980. Those who
inquire by e-mail are encouraged to include their mailing address,
telephone number, and the number of shares purchased.
[Click https://bit.ly/3o0G3rG for information about joining the
class action]
CD Projekt, through its subsidiaries, engages in the development
and digital distribution of videogames worldwide. The Company
operates through two segments: CD PROJEKT RED and GOG.com. The
Company's product portfolio includes The Witcher; The Witcher 2:
Assassins of Kings; The Witcher 3: Wild Hunt, Hearts of Stone
games, and Blood and Wine; Thronebreaker: The Witcher Tales; Gwent:
The Witcher Card game; and Cyberpunk 2077, as well as online
multiplayer games.
The Complaint alleges that throughout the Class Period, Defendants
made materially false and misleading statements, and failed to
disclose material adverse facts about the Company's business,
operational, and compliance policies. Specifically, Defendants made
false and/or misleading statements and failed to disclose to
investors that: (i) Cyberpunk 2077 was virtually unplayable on the
current-generation Xbox or Playstation systems due to an enormous
number of bugs; (ii) as a result, Sony would remove Cyberpunk 2077
from the Playstation store, and Sony, Microsoft, and the Company
would be forced to offer full refunds for the game; (iii)
consequently, the Company would suffer reputational and pecuniary
harm; and (iv) as a result, Defendants' statements about the
Company's business, operations, and prospects were materially false
and misleading and/or lacked a reasonable basis at all relevant
times.
CD Projekt launched Cyberpunk 2077 on December 10, 2020. Consumers
soon discovered that the current-generation console versions of
Cyberpunk 2077 were error-laden and difficult to play. IGN
published a scathing review, stating that the console versions
"fail[] to hit even the lowest bar of technical quality one should
expect even when playing on lower-end hardware. [Cyberpunk 2077]
performs so poorly that it makes combat, driving, and what is
otherwise a master craft of storytelling legitimately difficult to
look at."
On December 14, 2020, facing criticisms for delivering an
unplayable, bug-ridden product on the current-generation consoles,
the Company held a conference call. During the call, Defendant Adam
Michal Kicinski called the current-generation console versions "way
below our expectations".
During that same call, Defendant Piotr Marcin Nielubowicz stated
"we definitely did not spend enough time looking at that," when
referring to issues with the current-generation console versions.
Following the release, the Company's American Depository Receipt
("ADR") (OTGLY) price fell $6.93 per share, or 25%, over three
trading days to close at $20.75 per share on December 14, 2020,
damaging investors. Over that same period, CD Projekt's common
share (OTGLF) price fell $21.65 per share, or 20.1%, to close at
$86.00 per share on December 14, 2020, damaging investors.
Then, on December 18, 2020, Sony issued a statement via the
Playstation website that it would "offer a full refund for all
gamers who have purchased Cyberpunk 2077 via PlayStation Store" and
"be removing Cyberpunk 2077 from PlayStation Store until further
notice." Microsoft also announced that it would offer refunds for
the game.
That same day, the Company stated that Sony's decision to
"temporarily suspend" sales of the game came after a discussion
with the Company.
On this news, CD Projekt's ADR (OTGLY) price fell $3.49 per share,
or 15.87%, to close at $18.50 per share on December 18, 2020,
damaging investors. CD Projekt's common share (OTGLF) price fell
$9.20 per share, or 10.45%, to close at $78.80 per share on
December 18, 2020, damaging investors.
The Pomerantz Firm, with offices in New York, Chicago, Los Angeles,
and Paris is acknowledged as one of the premier firms in the areas
of corporate, securities, and antitrust class litigation. Founded
by the late Abraham L. Pomerantz, known as the dean of the class
action bar, the Pomerantz Firm pioneered the field of securities
class actions. Today, more than 80 years later, the Pomerantz Firm
continues in the tradition he established, fighting for the rights
of the victims of securities fraud, breaches of fiduciary duty, and
corporate misconduct. The Firm has recovered numerous
multimillion-dollar damages awards on behalf of class members. See
www.pomerantzlaw.com. [GN]
CHARTER COMMUNICATIONS: Wojtowicz Files Suit in Connecticut
-----------------------------------------------------------
A class action lawsuit has been filed against Charter
Communications, Inc. The case is styled as Hope Wojtowicz, on
behalf of herself and all others similarly situated v. Charter
Communications, Inc., Case No. 3:21-cv-00061-JAM (D. Conn., Jan.
15, 2021).
The nature of suit is stated as Other Contract for Breach of
Contract.
Charter Communications, Inc. -- https://corporate.charter.com/ --
is an American telecommunications and mass media company with
services branded as Charter Spectrum.[BN]
The Plaintiff is represented by:
James J. Reardon, Jr, Esq.
REARDON SCANLON LLP
45 South Main Street Suite 305
West Hartford, CT 06107
Phone: (860) 955-9455
Fax: (860) 520-5242
Email: james.reardon@reardonscanlon.com
CITY NATIONAL BANK: Carter Files Suit in W.D. Oklahoma
------------------------------------------------------
A class action lawsuit has been filed against The City National
Bank and Trust Company of Lawton Oklahoma, et al. The case is
styled as Lisa Carter, individually and on behalf of all others
similarly situated v. The City National Bank and Trust Company of
Lawton Oklahoma, JOHN DOE 1-5, inclusive, Case No.
5:21-cv-00029-PRW (W.D. Okla., Jan. 14, 2021).
The nature of suit is stated as Banks and Banking.
City National Bank -- https://www.cnb1901.com/ -- has over 40
community banks in Oklahoma and Kansas. CNB offers personal,
savings, business, loans and commercial products.[BN]
The Plaintiff is represented by:
Barrett T Bowers, Esq.
BARRETT T. BOWERS PLLC
PO Box 891628
Oklahoma City, OK 73189
Phone: (405) 727-7188
Email: btb@fastmail.com
- and -
Richard D McCune, Esq.
MCCUNEWRIGHT LLP
2068 Orange Tree Lane, Ste. 216
Redlands, CA 92374
Phone: (909) 557-1250
Fax: (909) 557-1275
Email: rdm@mccunewright.com
COMMUNITY BANK: Suit Seeks Initial Approval of Class Settlement
---------------------------------------------------------------
In the class action lawsuit captioned as TINA THOMPSON and SCOTT
DOXEY, on behalf of themselves and all others similarly
situated, v. COMMUNITY BANK, N.A., Case No. 8:19-cv-00919-MAD-CFH
(N.D.N.Y.), the Plaintiffs Tina Thompson and Scott Doxey will move
the Court to enter an order:
1. granting their Unopposed Motion for Preliminary Approval
of Class Action Settlement;
2. certifying for settlement purposes the proposed Settlement
Class, pursuant to Rule 23(a) and 23(b)(3), defined as:
"all current and former customers of Community Bank with
consumer checking accounts, who were charged a Relevant
Overdraft Fee during the Class Period;"
-- Relevant Overdraft Fees include both APPSN Fees and
Account Verification Fees. It includes both the APPSN
Fee Class and the Account Verification Fee Class; and
-- Excluded from the Settlement Class is Community Bank,
its parents, subsidiaries, affiliates, officers and
directors; all Settlement Class members who make a
timely election to be excluded; and all judges assigned
to this litigation and their immediate family members;
and
-- The Class Period is from January 1, 2015 to December
31, 2019;
3. appointing themselves Plaintiffs as Class Representatives;
4. approving the Notice Program and approving the form and
content of the Notices;
5. approving and order the opt-out and objection procedures
in the Agreement;
6. staying the Action against Community Bank pending Final
Approval of the Settlement;
7. appointing Jeff Ostrow and Jonathan Streisfeld of
Kopelowitz Ostrow P.A. and Jeffrey Kaliel and Sophia Gold
of Kaliel PLLC as Class Counsel; and
8. scheduling a Final Approval Hearing no sooner than the
week of June 14, 2021 (if convenient for the Court).
Settlement Terms:
-- The $3,460,833.02 Value of the Settlement, consists of
Community Bank's: (a) cash payment of $2,850,000;
and (b) agreement to forgive, waive, and agree not to
collect an additional $610,833.02 in Uncollected
Overdraft Fees.
-- Of the $2,850,000.00 paid into the Settlement Fund,
$2,830,000 (99.3%) is allocated to the APPSN Fee Class
and $20,000 (.7%) is allocated to the Account
Verification Fee Class.
On July 26, 2019, former Plaintiff Charles Kelly filed a putative
class action complaint in the Action seeking damages, restitution,
and declaratory relief arising from the allegedly unfair and
unconscionable assessment and collection of APPSN Fees and Account
Verification Fees. On October 20, 2020, the Parties filed a Notice
of Settlement, confirming their agreement in principle and
requesting that the Court stay all deadlines in the Action pending
the Parties execution of the Agreement and the filing of this
Motion. The Parties finalized and signed the Agreement on November
23, 2020.
Community Bank is a Department of Defense owned banking program
operated through a contract with a commercial financial
institution.
A copy of the Notice of plaintiffs' unopposed motion for
preliminary approval of class action settlement dated Jan. 14, 2020
is available from PacerMonitor.com at https://bit.ly/2XS0Wee at no
extra charge.[CC]
The Counsel for the Plaintiffs and the Settlement Classes, are:
Jeff Ostrow, Esq.
Jonathan M. Streisfeld, Esq
KOPELOWITZ OSTROW
FERGUSON WEISELBERG GILBERT
One West Las Olas Boulevard, Suite 500
Fort Lauderdale, FL 33301
Telephone: (954) 525-4100
Facsimile: (954) 525-4300
E-mail: streisfeld@kolawyers.com
ostrow@kolawyers.com
- and -
James R. Peluso, Esq.
DREYER BOYAJIAN LLP
75 Columbia Street
Albany, NY 12210
Telephone: (518) 463-7784
E-mail: jpeluso@dbls.com
- and -
Jeffrey D. Kaliel, Esq.
Sophia G. Gold, Esq.
KALIEL PLLC
1875 Connecticut Ave., NW, 10th Floor
Washington, D.C. 20009
Telephone: (202) 350-4783
E-mail: jkaliel@kalielpll.com
sgold@kalielpllc.com
CORECIVIC INC: Bid to Reconsider April 1, 2020 Order Tossed
-----------------------------------------------------------
In the class action lawsuit captioned as SYLVESTER OWINO and
JONATHAN GOMEZ, on behalf of themselves and all others similarly
situated, v. CORECIVIC, INC., a Maryland corporation, Case No.
3:17-cv-01112-JLS-NLS (S.D. Cal), the Hon. Judge Jannis L.
Sammartino entered an order denying the Defendant's motion for
reconsideration.
The Court said, "Contrary to the Defendant's assertions, there is
no rule prohibiting the use of averages in assessing damages,
particularly in situations like this one where the evidentiary
difficulties are a product of the Defendant's own timekeeping
deficiencies. The Court agrees with the Plaintiffs' interpretation
of Bluford v. Safeway Stores, Incorporated, 216 Cal. App. 4th 864
(2013), and Aldapa, see Opp'n at 19–20. The prohibition on
averaging concerns an employer's compliance with California's
minimum wage laws, not the calculation of damages in class actions.
The court upheld all but a small portion of the damages award,
reasoning: "In our view, it was within the discretion of the trial
court to weigh the disadvantage of statistical inference -- the
calculation of average damages imperfectly tailored to the facts of
particular employees -- with the opportunity it afforded to
vindicate an important statutory policy without unduly burdening
the courts." In short, the Court did not clearly err in finding
that a possible means of assessing class-wide damages exists in
this case. Accordingly, the Court denies the Defendant's Motion as
to this ground."
On April 1, 2020, the Court issued the 59-page Order, denying
without prejudice the Plaintiffs' motion for partial summary
judgment, denying the Defendant's motion for judgment on the
pleadings, denying as moot Plaintiffs' motion to exclude, and
granting in part and denying in part Plaintiffs' motion for class
certification. The Court certified the Plaintiffs' proposed
California and National Forced Labor Classes in their entirety and
the Plaintiffs' proposed California Labor Law Class as to the
causes of action for failure to pay minimum wage, failure to
provide wage statements for actual damages, failure to pay
compensation upon termination, and imposition of unlawful
conditions of employment. On April 15, 2020, the Defendant filed
the present Motion, seeking reconsideration of several portions of
the Order.
CoreCivic, formerly the Corrections Corporation of America, is a
company that owns and manages private prisons and detention centers
and operates others on a concession basis.
A copy of the Court's order denying the defendant's motion for
reconsideration dated Jan. 13, 2020 is available from
PacerMonitor.com at https://bit.ly/2Nb1ny5 at no extra charge.[CC]
CORIANT OPERATIONS: Court Narrows ERISA Claims in McCutchan Suit
----------------------------------------------------------------
In the lawsuit styled CALVIN McCUTCHAN v. CORIANT OPERATIONS, INC.,
INFINERA CORPORATION, CORIANT 401(k) PLAN, and J. DOES 1-20, Case
No. 20 C 561 (N.D. Ill.), the U.S. District Court for the Northern
District of Illinois issued a Memorandum Opinion:
-- granting in part a motion to dismiss the Plaintiff's First
Amended Class Action Complaint under Rule 12(b)(6) of the
Federal Rules of Civil Procedure filed by Defendants
Coriant Operations, Inc., Infinera Corporation, the Coriant
401(k) Plan, and J. Does' 1-20; and
-- granting the Defendants' motion to strike McCutchan's jury
demand under Rule 12(f).
Plaintiff McCutchan is a Texas citizen. Defendant Coriant is a
Delaware corporation with a principal place of business in
Naperville, Illinois. The Defendant Plan is an employee benefit
retirement plan sponsored by Coriant and has its principal place of
business in Naperville, Illinois. Defendant Infinera is a Delaware
corporation with a principal place of business in Sunnyvale,
California. Defendant J. Doe 1 was Coriant's 401(k) Plan Trustee.
Defendants J. Does 2-10 were members of Coriant's 401(k) Plan
Administrative Committee. Defendants J. Does 11-20 were members of
Coriant's 401(k) Plan Investment Committee. The exact identities of
the Doe Defendants are unknown.
Plaintiff McCutchan was an employee of Coriant and a participant in
the Plan. Prudential Financial, Inc., was the Investment Manager
for the Plan and offered Plan participants an investment option
known as the Gibraltar Guaranteed Fund ("GGF"). Under the terms of
the GGF, Plan participants would receive the book value of the GGF
investment if the participant elected to liquidate their
investment. However, if Prudential elected to terminate the Plan
participants' GGF investments, the Plan participants would instead
receive the market value, not the book value, of their investment.
On July 23, 2018, Infinera publicly announced its intention to
acquire Coriant. A condition of the acquisition was that Coriant
would terminate the Plan before finalization of the acquisition
because Infinera maintained its own 401(k) plan. Infinera's
acquisition of Coriant became final on October 1, 2018, and the
Plan was terminated the day prior, September 30, 2018.
The Plaintiff alleges that on October 10, 2018, Coriant mailed
notice to Plan participants that the GGF would terminate on October
15, 2018. On October 15, 2018, McCutchan alleges that Coriant sent
a mass email to all Plan participants again notifying them that the
GGF would terminate that day. Both communications told Plan
participants that they must elect to liquidate their GGF
investments by October 15, 2018, to receive the book value of the
investments. If they failed to do so, Plan participants would
receive the market value of their investments.
Mr. McCutchan says that he never received the mailed notice because
it did not arrive before October 15, 2018. Additionally, he says he
did not receive the email notification because it was filtered into
his spam folder. As a result, he was not able to elect to liquidate
his GGF investment and receive the book value. He alleges that the
market value was substantially less than the book value and,
therefore, he and other Plan participants suffered a monetary loss
due to insufficient timely notice. McCutchan argues that the
Defendants should have provided notice of the Plan's termination at
some point between July 23, 2018, when Infinera announced their
intent to acquire Coriant, and October 10, 2018, when Coriant
attempted to provide notice of the Plan's termination a few days
later.
Based on these events, McCutchan filed his FAC on June 10, 2020.
McCutchan seeks the recovery of benefits from the Plan under the
Employment Income Retirement Security Act ("ERISA") Section
502(a)(1)(B), 29 U.S.C. Section 1132(a)(1)(B) (Count I), and claims
a breach of fiduciary duty under ERISA Section 502(a)(2), 29 U.S.C.
Section 1132(a)(2), against Infinera, Coriant, and the Doe
Defendants (Count II).
The Defendants argue that McCutchan's recovery of benefits claim
fails because he failed to exhaust his administrative remedies. The
Court agrees. McCutchan fails to allege that he exhausted his
administrative remedies under the Plan. He asserts that on several
occasions he attempted to resolve this matter by communicating with
Debra Ragusa, Coriant's former Senior Global Benefits Manager. He
alleges that, in response to his communications with Ragusa,
Coriant repeatedly declined to admit any liability, engaged in
systematic obfuscation, directed him to speak with Prudential
instead of Coriant representatives, and made no indication of any
intent to settle the dispute.
Mr. McCutchan, however, does not allege that he submitted a proper
appeal under the procedures set forth under the terms of the Plan,
District Judge Charles P. Kocoras notes. McCutchan merely alleges
that he had communications with Ragusa outside the proper
administrative review process and that those communications were
not fruitful. Thus, McCutchan's argument that the Plan's litigation
position shows that pursing administrative remedies would be futile
fails.
Therefore, McCutchan has failed to plead that he exhausted his
administrative remedies under the terms of the Plan. Accordingly,
the Defendants' motion to dismiss McCutchan's recovery of benefits
claim is granted.
The Defendants also argue that McCutchan's breach of fiduciary duty
claim should be dismissed because it is a repackaging of his
recovery of benefits claim and because they did not breach any duty
owed to him. The Court disagrees.
According to the Court's Memorandum Opinion, Coriant allegedly knew
that the failure to timely liquidate a GGF investment would result
in a beneficiary receiving the market value of their investment,
instead of the higher book value. McCutchan and other beneficiaries
allegedly did not know about the termination of the GGF. Coriant
attempted to provide notice of the termination only five days prior
to the termination. However, the notice was allegedly not made in
time for McCutchan to act. Thus, McCutchan plausibly alleges that
Coriant may have failed to provide adequate timely notice of the
termination of the investment. The failure to provide timely
allegedly affected his material interests because it resulted in
his receiving the lower value of his investment. Adequate timely
notice, McCutchan alleges, would have prevented this injury.
Accordingly, the motion to dismiss the breach of fiduciary duty
claim is denied.
The Defendants argue that Infinera should be dismissed because
McCutchan has not alleged that Infinera is, or ever was, a Plan
fiduciary. The Court agrees.
Judge Kocoras notes that a claim for breach of fiduciary duty under
ERISA requires the plaintiff to plausibly allege that the defendant
is a plan fiduciary, citing Kenseth, 610 F.3d at 466 (citing Eddy
v. Colonial Life Ins. of Am., 919 F.2d 747, 750 (D.C. Cir. 1990)).
McCutchan fails to do so in his case. To be a fiduciary, Inferna
must have had some degree of control over the management of the
Plan and its assets. Therefore, the Plan was terminated before
Inferna ever owned Coriant or had any control over the Plan.
Accordingly, Defendant Inferna is dismissed.
The Defendants move the Court to strike the Plaintiff's jury demand
on the basis that ERISA actions do not have a federal right to a
jury trial. In ERISA cases, the general rule is that there is no
federal "right to a jury trial because ERISA's antecedents are
equitable, not legal." Divane v. Northwestern Univ., 953 F.3d 980,
994 (7th Cir. 2020). Accordingly, the Defendants' motion to strike
McCutchan's jury demand is granted.
For these reasons, the Court grants the Defendants' motion to
dismiss in part. Count I is dismissed and Defendant Inferna is
dismissed. McCutchan's breach of fiduciary duty claim may still
proceed. Additionally, the Defendants' motion to Strike McCutchan's
jury demand is granted. The jury demand is stricken.
Telephonic status hearing is set for February 2, 2021, at 10:40
a.m.
A full-text copy of the Court's Memorandum Opinion dated Jan. 11,
2021, is available at https://tinyurl.com/y2yrrzaf from
Leagle.com.
DAP PRODUCTS: Wins Bid to Dismiss Fraud Suit Initiated by Ehlis
---------------------------------------------------------------
The U.S. District Court for the District of Minnesota granted the
Defendant's motion to dismiss the lawsuit titled BRANDON EHLIS, on
behalf of himself Case and all others similarly situated v. DAP
PRODUCTS, INC., Case No. 20-CV-1872 (PJS/ECW) (D. Minn.).
The lawsuit is a putative class action brought by Plaintiff Ehlis
against Defendant DAP. Ehlis alleges that he bought a tube of DAP
3.0 Crystal Clear Kitchen, Bathroom, and Plumbing Sealant and that,
even though DAP had represented that the sealant was "crystal
clear," the sealant turned yellow sometime after Ehlis used it. He
brings a host of fraud and warranty claims against DAP, some under
Maryland law, and others under Minnesota law.
District Judge Patrick J. Schiltz notes that claims sounding in
fraud are subject to the heightened pleading requirement of Rule
9(b) of the Federal Rules of Civil Procedure. To assert a fraud
claim with the particularity required under Rule 9(b), a complaint
must allege in detail "the who, what, when, where, and how" of the
fraud, citing Parnes v. Gateway 2000, Inc., 122 F.3d 539, 550 (8th
Cir. 1997).
Mr. Ehlis' complaint falls well short of these standards, as it is
woefully devoid of factual allegations, Judge Schiltz finds. To
cite just some of the most glaring omissions: Ehlis does not
identify where he bought the sealant and he does not identify when
he bought the sealant, other than to say that he bought the sealant
within the Class Period.
To be clear, the Court states that it is not holding that all of
this information must be alleged in order for Ehlis to plead a
single plausible claim. It is holding that, because none of the
information was alleged, Ehlis has not pleaded a single plausible
claim. The allegations of the complaint leave the Court without a
basis even to identify which state's law applies to Ehlis's claims,
much less to determine whether any of those claims are plausible
under the applicable state law.
All of the missing information identified by the Court is
presumably within the knowledge of Ehlis, and all of it could have
been provided in a brief paragraph or two in the complaint. The
Court cannot fathom why Ehlis would not include these rudimentary
factual allegations in his 32-page, eight-count complaint. Nor can
it fathom why Ehlis would not voluntarily file an amended complaint
after these obvious deficiencies were (presumably) brought to his
attention during the meet-and-confer session with DAP. Adding a
paragraph or two of facts to the complaint is a lot easier than
drafting a 37-page brief defending the adequacy of an obviously
inadequate complaint, Judge Schiltz notes.
Because of the paucity of factual allegations, none of the claims
in the complaint meet the threshold requirement of Rule 8(a)(2)
that the plain statement possesses enough heft to show that the
pleader is entitled to relief, much less the more demanding
requirement of Rule 9(b) that the Plaintiff state with
particularity the circumstances constituting fraud or mistake,
Judge Schiltz opines.
The Court, therefore, grants DAP's motion to dismiss. But because
the case is in its infancy -- and because many of the complaint's
deficiencies appear to be easily curable -- it will stay its order
dismissing this lawsuit for 21 days to give Ehlis a chance to move
to amend his complaint. The Court warns Ehlis that it will not
provide a second such opportunity -- and thus, if Ehlis does draft
a proposed amended complaint, he would be well-advised to include
all of the missing factual information identified by the Court and
to be as specific as possible.
Judge Schiltz rules that:
1. Defendant DAP Products, Inc.'s motion to dismiss is
granted;
2. Plaintiff Brandon Ehlis' complaint is dismissed without
prejudice;
3. Entry of judgment is stayed until February 1, 2021, so that
Ehlis may move pursuant to Rule 15(a)(2) of the Federal
Rules of Civil Procedure and Local Rule 15.1 for leave to
file an amended complaint. Any such motion will be
considered by Magistrate Judge Elizabeth Cowan Wright in
the first instance; and
4. If Ehlis does not file a motion for leave to file an
amended complaint by February 1, 2021, or if Ehlis'
timely-filed motion is denied, judgment will be entered
pursuant to the order.
A full-text copy of the Court's Order dated Jan. 11, 2021, is
available at https://tinyurl.com/y2v67vad from Leagle.com.
David A. Goodwin -- dgoodwin@gustafsongluek.com -- Daniel E.
Gustafson -- dgustafson@gustafsongluek.com -- Daniel C. Hedlund --
dhedlund@gustafsongluek.com -- and Kaitlyn L. Dennis --
kdennis@gustafsongluek.com -- GUSTAFSON GLUEK PLLC; Brian C.
Gudmundson -- brian.gudmundson@zimmreed.com -- Michael J. Laird --
michael.laird@zimmreed.com -- and Rachel K. Tack --
Rachel.Tack@zimmreed.com -- ZIMMERMAN REED LLP, for Plaintiff.
Russell S. Ponessa -- rponessa@hinshawlaw.com -- and Anju Suresh --
ASuresh@hinshawlaw.com -- HINSHAW & CULBERTSON LLP; Charles W.
Steese -- csteese@atllp.com -- Ijay Palansky -- ipalansky@atllp.com
-- Alec Harris -- aharris@atllp.com -- and Amber Gonzales --
agonzales@atllp.com -- ARMSTRONG TEASDALE, LLP, for Defendant.
DEXTER-RUSSELL INC: Paguada Files ADA Suit in S.D. New York
-----------------------------------------------------------
A class action lawsuit has been filed against Dexter-Russell, Inc.
The case is styled as Josue Paguada, on behalf of himself and all
others similarly situated v. Dexter-Russell, Inc., Case No.
1:21-cv-00361 (S.D.N.Y., Jan. 14, 2021).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Dexter-Russell, Inc. -- https://dexter1818.com/ -- is a cutlery
manufacturing company in the town of Southbridge, MA. It is the
largest US manufacturer of professional cutlery, and is also the
oldest cutlery manufacturer in the United States.[BN]
The Plaintiff is represented by:
Mars Khaimov, Esq.
10826 64th Avenue, Ste. 2nd Floor
Forest Hills, NY 11375
Phone: (917) 915-7415
Email: marskhaimovlaw@gmail.com
DISTRICT OF COLUMBIA: Pappas Suit Dismissed With Leave to Amend
---------------------------------------------------------------
Judge Rudolph Contreras of the U.S. District Court for the District
of Columbia enters a Memorandum Opinion in the case, STEVE PAPPAS,
et al., Plaintiffs v. DISTRICT OF COLUMBIA, et al., Defendants,
Case No. 19-2800 (RC) (D.D.C.), granting in part and denying in
part the Defendants' motion to dismiss, and granting the Plaintiffs
leave to amend within 30 days.
Plaintiffs Pappas, Tawana Lindsay, Nichole Mathies, and Malachi
Malik, former employees of the District of Columbia Metropolitan
Police Department ("MPD"), brought the class action against MPD,
the District of Columbia, and Peter Newsham in his official
capacity as Chief of Police of the MPD, challenging the MPD's
practice of requiring employees who spend 172 cumulative days
within any 24-month period at less than full-duty status to take
disability retirement, without offering reasonable accommodations
through reassignment, job restructuring, or extended leave. They
argue the policy violated the Americans with Disabilities Act
("ADA") and Section 504 of the Rehabilitation Act ("Section 504").
Mr. Pappas also alleges that the MPD made improper medical
inquiries and subjected him to improper medical examinations, in
violation of the same statutes.
The Plaintiffs are all former MPD officers who developed medical
conditions that caused them to go on leave or be moved to limited
duty roles. They allege that pursuant to MPD General Order
100.11.L, they were required to take involuntary disability
retirement after accruing 172 days on sick leave or limited-duty
status within a 24-month period for "any disability that occurs
outside the performance of duty." Under the Forced Retirement
Policy, MPD does not allow any possibility of reassignment, job
restructuring or extended leave. Disability retirement is
mandatory regardless of whether the medical prognosis is that a
member will be able to perform in a full duty status after reaching
maximum medical improvement. The Plaintiffs assert that the policy
violates both the ADA and Section 504.
Mr. Pappas filed a formal charge of discrimination with the Equal
Employment Opportunity Commission ("EEOC") on Oct. 5, 2015. On
Aug. 10, 2016, the EEOC issued a determination letter that referred
Mr. Pappas's claim to the U.S. Department of Justice ("DOJ"),
finding that there was cause to believe that by MPD's actions and
through its policies, MPD had violated the ADA rights of Mr. Pappas
and a class of similarly situated individuals.
On June 21, 2019, the DOJ issued Mr. Pappas a right to sue letter
for his claim. Mr. Pappas filed suit on Sept. 19, 2019. An
amended complaint was filed by Mr. Pappas, along with Ms. Lindsay,
Ms. Mathies, and Mr. Malik on Dec. 12, 2019.
The Defendants have moved to dismiss the complaint in its entirety,
arguing that (1) Ms. Lindsay, Ms. Mathies, and Mr. Malik have
failed to exhaust their administrative remedies as to their ADA
claims, (2) that Ms. Lindsay, Ms. Mathies, and Mr. Malik's Section
504 claims are barred by the applicable statute of limitations, (3)
that all the Plaintiffs have failed to plead a failure to
accommodate claim under the ADA or Section 504, and (4) that Mr.
Pappas has failed to state a claim for improper medical inquiries.
Judge Contreras grants in part and denied in part the Defendants'
motion to dismiss. He finds that due to the doctrine of vicarious
exhaustion, only Mr. Malik has failed to exhaust his administrative
remedies regarding his ADA claims, but that Ms. Lindsay, Ms.
Mathies, and Mr. Malik's Section 504 claims are all barred by the
applicable statute of limitations. The remaining failure to
accommodate claims--Mr. Pappas's claims under both the ADA and
Section 504 and Ms. Lindsay and Ms. Mathies's claims under the
ADA--survive the motion to dismiss, when given (as required) all
reasonable inferences in the Plaintiffs' favor. But because Mr.
Pappas has not alleged sufficient facts to plausibly infer that he
was subjected to improper medical inquiries given that the
inquiries in question were job-related, the Judge also grants the
motion to dismiss his improper medical inquiries claims under the
ADA and Section 504.
The Judge grants the Plaintiffs' request to amend to address the
various pleading deficiencies identified in his opinion. In their
opposition brief, the Plaintiffs request "leave to amend their
complaint" should the Court require more in the way of specificity
of the pleadings. The Judge opines that it is in the interest of
justice to grant the Plaintiffs' request to amend. They seek leave
to correct various pleading errors, among them some that they
impermissibly attempted to supplement through their opposition
brief. Given that the case is still in its beginning stages, and
allowing amendment will not prejudice the Defendants, there is no
sufficient reason to deny the request. The Plaintiffs are given
leave to amend within 30 days.
An order consistent with the Memorandum Opinion is separately and
contemporaneously issued.
A full-text copy of the Court's Jan. 12, 2021 Memorandum Opinion is
available at https://tinyurl.com/y3e7no7m from Leagle.com.
DOLE FOOD: Denial of Bid to Vacate Order Dismissing Chaverri Upheld
-------------------------------------------------------------------
In the case, EDUARDO ALVARADO CHAVERRI, et al., Plaintiffs Below,
Appellants v. DOLE FOOD COMPANY, INC., et al., Defendants Below,
Appellees, Case No. 519, 2019 (Del.), the Supreme Court of Delaware
affirms the Superior Court's order denying the Plaintiffs' motion
to motion to vacate the Dismissal Order under Superior Court Civil
Rule 60(b)(6) entered in 2013.
The Plaintiffs-Appellants worked on banana plantations in Costa
Rica, Ecuador, and Panama. They filed their complaint in the case
in 2012, claiming that while working on the plantations they
suffered personal injuries from a pesticide known as 1, 2, Dibromo
3, Chloropropane ("DBCP"). The Defendants-Appellees are numerous
companies alleged to have caused the Plaintiffs' exposure to DBCP
and their resulting injuries. They are U.S. corporations that were
involved in the manufacture and distribution of DBCP or who owned
and operated the banana farms where the Plaintiffs worked.
In 2013, the Superior Court dismissed the Plaintiffs' complaint
under what has sometimes been referred to as Delaware's McWane
doctrine. On Dec. 31, 2018, the Plaintiffs filed a motion to
vacate the Dismissal Order under Superior Court Civil Rule
60(b)(6). The Superior Court denied the Plaintiffs' motion,
finding that the motion was untimely and the Plaintiffs failed to
show extraordinary circumstances for vacating the judgment.
The Plaintiffs have appealed from that order. They raise three
claims on appeal. The first is that the Superior Court committed
an error of law and abused its discretion by failing to adhere to
established Delaware jurisprudence in analyzing the Plaintiffs'
assertion of extraordinary circumstances under Rule 60(b)(6). The
second is that the Superior Court misapplied the law by giving
preference to "finality" of decisions over Delaware's public policy
favoring adjudication on the merits, and in so holding, erred when
finding the Plaintiffs' request for relief under Rule 60(b)(6)
untimely. The third is that the Superior Court committed errors of
law in a series of "non-distinctions" to justify its disregard of
Chavez v. Dole Food Company, Inc. and Marquinez v. Dow Chemical
Company.
In response to these claims, the Defendants contend that the
Superior Court did not abuse its discretion in denying the motion
to vacate based on the Plaintiffs' unreasonable delay, the Superior
Court did not abuse its discretion in denying the motion to vacate
based on the Plaintiffs' failure to set forth "extraordinary
circumstances," and the Plaintiffs cannot obtain Rule 60(b)(6)
relief as to defendants they excluded from their prior appeal.
The Supreme Court of Delaware finds that case involves the
application of different legal principles by courts in separate,
sovereign jurisdictions. The Superior Court judge very ably
explained the distinction between the federal first-filed rule and
Delaware's forum non conveniens law in her opinion denying the
Plaintiffs' motion, and how those distinctions permit the federal
courts and our state courts to treat second-filed actions
differently. What has happened in the case is a consequence of
filing cases asserting the same or similar claims in courts of
different jurisdictions where different principles of law may
apply.
By dividing the Plaintiffs' claims between the federal and state
courts of Delaware, the Plaintiffs' counsel rendered them not
similarly situated and created a foreseeable risk that procedural
rules of the two jurisdictions may lead to different results. The
developments in the Marquinez and Chavez federal cases after the
instant case was dismissed are not extraordinary circumstances
justifying relief from the Dismissal Order.
The dissent writes that Chavez contradicts what had been a
foundational point in the Dismissal Order. The Supreme Court of
Delaware disagrees. It states that the cases do not involve
conflicting application of the same law. Neither contradicts or
undercuts the other.
Since it finds that the Plaintiffs have failed to show
extraordinary circumstances for vacating the Dismissal Order and
the Superior Court did not abuse its discretion in denying the
Plaintiffs' motion on that ground, the Court holds there is no need
for it to address the Superior Court's ruling that the motion was
untimely or the Defendants' argument concerning defendants excluded
from the Plaintiffs' prior appeal. Yet because the dissent's
strongest disagreement with the trial court's analysis appears to
be centered on its treatment of the timeliness of the Plaintiffs'
motion, the Court offers its views on that issue.
The Court finds no fault with the Superior Court's consideration,
as one factor among many and as it did in Schremp v. Marvel, of the
"inflexible time" its rules of court allow litigants when
perfecting an appeal (30 days), or moving for a new trial under
Superior Court Rule 59(b) (10 days) or reargument in the Court (15
days). To be sure, had that been the Superior Court's sole
consideration, it might view its timeliness ruling differently.
But the Superior Court, recognizing its obligation to consider all
circumstances surrounding the delay, did not so limit its
analysis.
Not surprisingly, the Superior Court cited the two reasons for the
delay offered by the Plaintiffs--the burden of the many other DBCP
cases the counsel was handling and the time and research required
to prepare the motion--and found them to be unpersuasive. The
Supreme Court of Delaware cannot say that the trial court's
conclusion exceeds the bounds of reason, especially when it
considers that the Plaintiffs' motion, which was filed seven months
after Chavez and fourteen months after Gramercy (arguably the most
relevant starting point for the timeliness analysis)--contains
barely five pages of substantive text and only three unremarkable
exhibits. The simplicity of the motion itself cannot be squared
with the Plaintiffs' contention that it took seven months to
untangle and explain the procedural history of this case in the
motion.
And finally, the Supreme Court of Delaware appreciates the
dissent's concern that the complexity of the case that arguably
contributed to the delay was in large part the product of the
"extraordinary resistance exerted by the defendants over three
decades." But it was not improper--or, for that matter,
unfounded--in its view for the Superior Court to comment on how the
Plaintiffs' strategic choices are at least a partial cause of their
present predicament. In sum, it concludes that the Superior
Court's finding that the Plaintiffs' delay in filing the motion to
vacate the then six-year-old judgment of dismissal was not an abuse
of discretion.
Ultimately, the Supreme Court of Delaware holds that the question
is whether the Superior Court abused its discretion in denying the
Plaintiffs' motion to reopen the judgment as untimely and for
failure of the Plaintiffs to show extraordinary circumstances. As
it recently observed, when it reviews a trial court for abuse of
discretion, it holds that the question is not whether it agrees
with the court below, but rather whether it believes that the
judicial mind in view of the relevant rules of law and upon due
consideration of the facts of the case could reasonably have
reached the conclusion of which complaint is made. Applying that
standard, the Court finds that there was no abuse of discretion.
It therefore affirms the judgment of the Superior Court.
A full-text copy of the Court's Jan. 12, 2021 Order is available at
https://tinyurl.com/y4r2evyl from Leagle.com.
Andrew C. Dalton, Esquire -- adalton@bdaltonlaw.com -- Dalton &
Associates, P.A., Wilmington, Delaware, Scott M. Hendler, Esquire,
Hendler Flores, PLLC, Austin, Texas, Attorneys for Plaintiffs.
Somers S. Price, Jr., Esquire -- sprice@potteranderson.com --
Potter, Anderson & Corroon LLP, Wilmington, Delaware; Andrea
Neuman, Esquire, Thomas Manakides, Gibson, Dunn & Crutcher, New
York, New York, Attorneys for Defendants Dole Food Company, Inc.,
Dole Fresh Fruit Company, Standard Fruit Company, and Standard
Fruit and Steamship Company.
Adam Orlacchio, Esquire -- orlacchio@blankrome.com -- Brandon
McCune, Esquire -- bmccune@blankrome.com -- Blank Rome LLP,
Wilmington, Delaware, Attorneys for Defendants Chiquita Brands
International, Inc., Chiquita Brands, LLC, and Chiquita Fresh
North
America, LLC.
Donald E. Reid, Esquire -- dreid@mnat.com -- Morris, Nichols,
Arsht
& Tunnell LLP, Wilmington, Delaware, Michael L. Brem, Esquire,
Shirrmeister, Diaz-Arrastia, Brem, LLP, Houston, Texas, Attorneys
for Defendant Dow Chemical Company.
Timothy Jay Houseal, Esquire -- thouseal@ycst.com -- Jennifer M.
Kinkus, Esquire -- jkinkus@ycst.com -- William E. Gamgort,
Esquire,
Young, Conaway, Stargatt & Taylor, LLP, Wilmington, Delaware,
Attorneys for Occidental Chemical Corporation.
John C. Phillips, Esquire, Phillips, Goldman, McLaughlin & Hall,
P.A., Wilmington, Delaware, Attorney for Defendant AMVAC Chemical
Corporation.
Kelly E. Farnan, Esquire -- farnan@rlf.com -- Katharine L. Mowery,
Esquire, Richards, Layton & Finger, P.A., Wilmington, Delaware,
Craig Stanfield, King & Spalding, LLP, Houston, Texas, Attorneys
for Defendant Shell Oil Company.
James Semple, Esquire -- jsemple@coochtaylor.com -- Cooch &
Taylor,
P.A., Wilmington, Delaware, Attorney for Defendant Del Monte Fresh
Produce, N.A., Inc.
ESCOBAR CONSTRUCTION: Perez Counsel Affirms Collective Cert. Bid
----------------------------------------------------------------
MARCO ANTONIO PEREZ PEREZ, and JOSE EDUARDO SANCHEZ ARIAS, on their
own behalf and on behalf of others similarly situated, v. ESCOBAR
CONSTRUCTION, INC.; NATIONS CONSTRUCTION, INC.; JRS SERVICES, LLC;
JHONY A ESCOBAR, ELIAS O. PALACIOS a/k/a Elias Escobar, NATALIE
PALACIOS, JENNY CAROLINA ALVAREZ, LUIS ENRIQUE MONZON, Case No.
1:20-cv-08010-LTS-GWG (S.D.N.Y.), Attorney John Troy, submits an
affirmation in support of the Plaintiffs' motion for an Order
granting collective action status pursuant to 29 U.S.C. section
216(b) for the Plaintiffs' claims under the Fair Labor Standards
Act (FLSA).
The putative class consists of:
"The named Plaintiffs and all nonexempt current and former
employees of the Defendants ESCOBAR CONSTRUCTION, INC.;
NATIONS CONSTRUCTION, INC.; JRS SERVICES, LLC; JHONY A
ESCOBAR, ELIAS O. PALACIOS a/k/a Elias Escobar, NATALIE
PALACIOS, JENNY CAROLINA ALVAREZ, and LUIS ENRIQUE MONZON who
performed work as non-exempt, non-managerial employees from
December 29, 2016 to present. Corporate officers,
shareholders, directors, administrative employees, managers,
and other customarily exempt employees are not part of the
defined class."
The Defendants are doing business in the construction industry.
A copy of the Plaintiff's motion to certify class dated Jan. 13,
2020 is available from PacerMonitor.com at http://bit.ly/3qo4a5kat
no extra charge.[CC]
Attorney for the Plaintiffs, proposed FLSA Collective and potential
Rule 23 Class, are:
John Troy, Esq.
TROY LAW, PLLC
41-25 Kissena Boulevard Suite 103
Flushing, NY 11355
Telephone: (718) 762-1324
ESCOBAR CONSTRUCTION: Perez Seeks FLSA Collective Action Status
---------------------------------------------------------------
MARCO ANTONIO PEREZ PEREZ, and JOSE EDUARDO SANCHEZ ARIAS, on their
own behalf and on behalf of others similarly situated, v. ESCOBAR
CONSTRUCTION, INC.; NATIONS CONSTRUCTION, INC.; JRS SERVICES, LLC;
JHONY A ESCOBAR, ELIAS O. PALACIOS a/k/a Elias Escobar, NATALIE
PALACIOS, JENNY CAROLINA ALVAREZ, LUIS ENRIQUE MONZON, Case No.
1:20-cv-08010-LTS-GWG (S.D.N.Y.), the Plaintiffs ask the Court to
enter an order:
1. granting collective action status, under the Fair Labor
Standards Act ("FLSA"), 29 U.S.C. section 216(b);
2. directing the Defendants within 14 days of the entry of
this Order to produce an Excel spreadsheet containing
first and last name, last known address with apartment
number (if applicable), the last known telephone numbers,
last known e-mail addresses, WhatsApp, WeChat ID and/or
FaceBook usernames (if applicable), and work location,
dates of employment and position of:
"ALL current and former non-exempt and non-managerial
employees employed at any time from December 29, 2016
(three years prior to the filing of the Complaint in the
Northern District of New York, before it was transferred
to the Southern District of New York by consent) to the
date when the Court so-orders the Notice of Pendency and
Consent to Join Form or the date when Defendants provide
the name list, whichever is later";
3. authorizing that notice of this matter be disseminated, in
any relevant language via mail, email, text message,
website or social media messages, chats, or posts, to all
members of the putative class within 21 days after receipt
of a complete and accurate Excel spreadsheet with
affidavit from Defendants certifying that the list is
complete and from existing employment records;
4. authorizing an opt-in period of 90 days from the day of
dissemination of the notice and its translation;
5. authorizing the Plaintiff to publish the full opt-in
notice on Plaintiffs' counsel's website;
6. authorizing the publication of a short form of the notice
may also be published to social media groups specifically
targeting the Spanish-speaking American immigrant worker
community;
7. directing the Defendants to post the approved Proposed
Notice in all relevant languages, in a conspicuous and
unobstructed locations likely to be seen by all currently
employed members of the collective, and the notice shall
remain posted throughout the opt-in period, at the
workplace;
8. directing the Plaintiffs to publish the Notice of
Pendency, in an abbreviated form to be approved by the
Court, at the Defendants' expense by social media and by
publication in newspaper should the Defendants fail to
furnish a complete Excel list or more than 20% of the
Notice be returned as undeliverable with no forwarding
address to be published in English, and Spanish; and
9. granting equitable tolling on the statute of limitation on
this suit be tolled for 90 days until the expiration of
the Opt-in Period.
The Defendants are doing business in the construction industry.
A copy of the Plaintiff's motion to certify class dated Jan. 13,
2020 is available from PacerMonitor.com at https://bit.ly/2XSssrU
at no extra charge.[CC]
Attorney for the Plaintiffs, proposed FLSA Collective and potential
Rule 23 Class, are:
John Troy, Esq.
TROY LAW, PLLC
41-25 Kissena Boulevard Suite 103
Flushing, NY 11355
Telephone: (718) 762-1324
EVERGREEN FREEDOM: Huntsman Files TCPA Suit in E.D. Washington
--------------------------------------------------------------
A class action lawsuit has been filed against Evergreen Freedom
Foundation. The case is styled as Mark Huntsman, individually and
on behalf of all others similarly situated v. Evergreen Freedom
Foundation, Case No. 4:21-cv-05005-SAB (E.D. Wash., Jan. 14,
2021).
The lawsuit is brought over alleged violation of the Telephone
Consumer Protection Act for Restrictions of Use of Telephone
Equipment.
The Evergreen Freedom Foundation --
https://www.freedomfoundation.com/ -- operating as the Freedom
Foundation, is a state-based free market conservative think tank
founded in the state of Washington.[BN]
The Plaintiff is represented by:
Kira Meshawn Rubel, Esq.
HARBOR LAW GROUP
3615 Harborview Drive, Suite C
Gig Harbor, WA 98329
Phone: (253) 251-2955
Email: kira@theharborlawgroup.com
EXTENDICARE INC: Faces COVID-19 Class Action Over Negligence
------------------------------------------------------------
insauga.com reports that the unproven claim alleges Extendicare
failed to respond properly to the pandemic and was negligent in the
care of residents.
"The plaintiffs plead that the defendants behaved in a
reprehensible and unconscionable manner by failing to implement an
adequate COVID-19 response plan," the suit alleges.
"The defendants had a history of failing to implement properly, or
at all, an adequate infection-control program."
Extendicare has a Mississauga location at 855 John Watt Blvd.
A similar $500-million lawsuit announced on Wednesday also names
Extendicare as well as other long-term care providers across
Ontario such as Chartwell and Sienna Senior Living.
The unproven claim also names the Ontario government along with
several cities, such as Toronto, Essex, Ottawa and Hamilton. The
suit is the first to allege multiple branches of government were
culpable for COVID-19 deaths, its lawyers said.
Extendicare either owns or operates 71 long-term care facilities in
Ontario. One of its homes, Tendercare Living Centre in east-end
Toronto, has seen at least 73 residents die of COVID-19 -- one of
the worst-hit long-term care facilities in Canada.
A second Extendicare-run facility, Orchard Villa in Pickering,
Ont., has had at least 70 deaths, according to the latest
provincial data.
The proposed lead plaintiff, Peggy Hannon, is a disabled resident
of West End Villa in Ottawa. Her claim would include all residents
of an Extendicare facility as of Jan. 25, 2020 or, if they have
since died, their estates. Hannon's daughter, Suzanne Zagallai,
proposes to represent relatives.
"Extendicare owns or manages the two most severely devastated
long-term care facilities in Ontario," Stephen Birman, one of the
plaintiffs' lawyers said in a statement. "Extendicare continues to
be cited for infractions regarding infection control.
In a statement on Wednesday, the company said it would respond to
the allegations through "appropriate legal channels" in due
course.
"Our focus at this time is solely on providing quality care to our
residents, and supporting our families and team members," the
statement said. "Our hearts are with our community and those who
have lost loved ones to this virus."
According to its corporate profile, the company's 23,000 employees
operate or provide contract services to a network of 122 long-term
care homes and retirement communities.
The proposed Extendicare class action was initially filed in
September only against West End Villa in Ottawa and sought $16
million.
Since then, COVID-19 has ravaged other facilities, including
Tendercare. Among those who have died there recently was Ping Qiu.
"We have many questions as to why Tendercare was not prepared for
the second wave and why Tendercare was not able to protect my
grandmother," Reed Zhao, her grandson, said in a statement.
As recently as last month, a government inspection after a deadly
COVID-19 outbreak that affected residents and staff cited
Tendercare for violating infection-prevention protocols. Issues
included "inconsistent" controls and an inconsistent supply of
protective gear.
"As a result," the inspection report states, "the disease spread
rapidly throughout the home and there were a number of resident
deaths and also a number of residents who have tested positive."
Extendicare's latest financial statements show long-term-care
revenues rose to $523.4 million for the nine months ended Sept. 30,
2020 -- from $477.1 million in the same period the previous year.
The company also recently announced shareholders would receive
$0.04 per share for December.
In a tweet, last June, New Democrat Leader Jagmeet Singh denounced
Extendicare for short-changing residents to the benefit of
shareholders.
"During the worst of the crisis, Extendicare gave $10 million to
shareholders when only spending $300,000 on care of seniors and
while dozens of seniors died from in their care," Singh said.
The plaintiffs also note that Extendicare Care in the United States
paid $38 million dollars in October 2014 in a settlement after an
investigation into some of its American facilities. Soon after, the
company announced the sale of its American portfolio for US $870
million. [GN]
FACEBOOK INC: Monopolizes Social Advertising Market, Layser Claims
------------------------------------------------------------------
JESSICA L. LAYSER, individually and on behalf of all others
similarly situated v. FACEBOOK, INC., a Delaware corporation
headquartered in California, Case No. 5:21-cv-00337 (N.D. Cal.,
Jan. 13, 2021) arises from the anticompetitive conduct of the
Defendant in violation of the Sherman Act.
The complaint contends that the Defendant has willfully acquired
and maintained monopoly power for Facebook in the Social
Advertising Market. Allegedly, the Defendant has accomplished this
by means of predatory, exclusionary, and anticompetitive conduct,
including but not limited to obtaining monopoly power by deceiving
users about its privacy protection practices, secretly obtaining
user data from third parties to identify and deter emerging
competitive threats, engaging in covert surveillance of potential
competitors' users to detect and ultimately acquire competitive
threats before they became too formidable, neutralizing potential
competitive threats by acquisition before they became an actual
threat, and using its application programming interface as a means
to exclude competition and prevent competitors from forming or
growing.
Facebook, Inc. operates a social networking Website. The Company
Website allows people to communicate with their family, friends,
and coworkers. Facebook develops technologies that facilitate the
sharing of information, photographs, Website links, and videos.
Facebook users have the ability to share and restrict information
based on their own specific criteria.[BN]
The Plaintiff is represented by:
Christina "Dena" C. Sharp, Esq.
Jordan Elias, Esq.
Adam E. Polk, Esq.
Scott M. Grzenczyk, Esq.
GIRARD SHARP LLP
601 California Street, Suite 1400
San Francisco, CA 94108
Telephone: (415) 981-4800
Facsimile: (415) 981-4846
E-mail: dsharp@girardsharp.com
jelias@girardsharp.com
apolk@girardsharp.com
scottg@girardsharp.com
- and -
Keith J. Verrier, Esq.
Austin B. Cohen, Esq.
LEVIN SEDRAN & BERMAN LLP
510 Walnut Street, Suite 500
Philadelphia, PA 19106-3997
Telephone: (215) 592-1500
Facsimile: (215) 592-4663
E-mail: kverrier@lfsblaw.com
acohen@lfsblaw.com
FACEBOOK INC: Nearly 1.6MM Illinois Users to Get About $350 Each
----------------------------------------------------------------
Robert Channick at Chicago Tribune reports that the check is not
yet in the mail, but nearly 1.6 million Illinois Facebook users can
expect to get about $350 each in a landmark privacy lawsuit.
The totals were disclosed in a California federal court Thursday
during the final approval hearing for a $650 million class-action
settlement over alleged violations of Illinois' biometric privacy
law.
The individual payout was projected at about $400 each in November,
but that amount was reduced after some 200,000 claims were filed in
the final days before the deadline.
U.S. District Judge James Donato, who called the case a
"groundbreaking settlement in a novel area," is expected to issue a
final approval order in the coming days, though payouts could be
months away.
"This is money that's coming directly out of Facebook's own
pocket," Donato said. "The violations here did not extract a penny
from the pockets of the victims. But this is real money that
Facebook is paying to compensate them for the tangible privacy
harms that they suffered. "
The Illinois Biometric Information Privacy Act is among the
strictest such laws in the U.S., and has spawned a number of
lawsuits. It requires companies to get permission before using
technologies such as facial recognition to identify customers.
The settlement class included about 7 million Facebook users in
Illinois for whom the social network created and stored a face
template after June 7, 2011. To qualify, Facebook users had to live
in the state for at least six months over the last nine years.
More than 1 in 5 eligible Illinois Facebook users filed a claim in
the case by the Nov. 23 deadline. The case spanned more than five
years and a 2,000-mile change of venue.
In April 2015, Chicago attorney Jay Edelson filed the initial
lawsuit in Cook County Circuit Court on behalf of plaintiff Carlo
Licata, alleging the social media giant's use of facial tagging
features without consent was not allowed under Illinois privacy
law.
The case was moved to Chicago federal court and then California
federal court, where it attained class-action status.
[Most read] A 'healthy' doctor died two weeks after getting a
COVID-19 vaccine; CDC is investigating why »
Last January, Facebook agreed to settle the lawsuit for $550
million, but Donato rejected the deal. After subsequent
negotiations, Facebook agreed to increase the settlement to $650
million, and the court gave the deal preliminary approval in
August.
Michael Rhodes, a California-based attorney representing Facebook,
told Donato if the case went to trial, it could have cost the tech
giant "billions and billions of dollars" if it had lost.
"I mean, $650 million, by any stretch of the imagination is a
tremendous sum of money," Rhodes said. "It's not something that
Facebook wants to do. But we're also rational, intelligent people
trying to manage a very significant risk."
The hearing Thursday included discussion about lowering the fee
structure. The three law firms representing the plaintiff class are
seeking a total of $110 million, or 16.9% of the settlement, plus
expenses. A reduction in fees would increase the payout for
claimants.
Facebook will pay $650 million into a fund, which will be
distributed to those who filed claims after litigation expenses are
deducted.
Illinois Facebook users who filed a claim can expect to receive
their checks within a few months, pending final approval and
barring any appeals, Edelson told the Tribune on Thursday.
"This is a historic settlement and we look forward to reading the
court's opinion when it comes out," Edelson said. [GN]
FAST AUTO: Appeals Court Affirms Arbitration Denial in Maldonado
----------------------------------------------------------------
The Court of Appeals of California affirms the trial court's denial
of the Defendant's motion to compel arbitration in the lawsuit
entitled JOE MALDONADO et al., Plaintiffs and Respondents v. FAST
AUTO LOANS, INC., Defendant and Appellant, Case No. G058645 (Cal.
App.).
In the putative class action, Plaintiffs Maldonado, Alfredo Mendez,
J. Peter Tuma, Jonabette Michelle Tuma, and Roberto Mateos Salmeron
("Customers"), assert Lender Fast Auto charged unconscionable
interest rates on loans in violation of Financial Code Sections
22302 and 22303. The Lender filed a motion to compel arbitration
and stay the action pursuant to an arbitration clause contained
within the Customers' loan agreements. The trial court denied the
motion on the grounds the provision was invalid and unenforceable
because it required consumers to waive their right to pursue public
injunctive relief, a rule described in McGill v. Citibank, N.A.,
(2017) 2 Cal.5th 945 (McGill).
On appeal, the Lender asserts the "McGill Rule" does not apply, but
even if it did, other claims were subject to arbitration.
Alternatively, the Lender contends the McGill Rule is preempted by
the Federal Arbitration Act.
The Appellate Court concludes that the Lender's contentions on
appeal lack merit, and it affirms the trial court's order.
Judge Kathleen E. O'Leary, writing for the Panel, opines that
because all the issues raised in the appeal involve only questions
of law, the Panel reviewed the trial court's order de novo, citing
Mejia v. DACM Inc. (2020) 54 Cal.App.5th 691. The Panel concludes
that the contentions lack merit.
Judge O'Leary holds that the McGill Rule applies in the case. The
Lender's assertion the Customers seek a private injunction is based
on the opening paragraph of the complaint, where the Customers
introduced themselves as individually and on behalf of all other
similarly situated, bringing the class action against the Lender to
seek recompense for themselves and other similarly-situated
California consumers, who take out personal loans from the Lender.
Judge O'Leary notes that it is language typically used in a class
action lawsuit.
Judge O'Leary explains that the Lender ignores the operative
allegations and specific requests for relief located in Sections VI
(describing basis for causes of action) and VII (the prayer for
relief) of the complaint. In these sections, the Customers alleged
Lender's misconduct was ongoing and injurious to the public and
consumers. The Customers clarified the injunctive relief should
require Lender to stop charging unlawful interest rates and adopt
corrective advertising.
In short, the Customers' complaint and prayer does not limit the
requested remedies for only some class members, but rather
encompasses all consumers and members of the public, Judge O'Leary
finds. Moreover, an injunction under the Consumers Legal Remedies
Act ("CLRA") against the Lender's unlawful practices will not
directly benefit the Customers because they have already been
harmed and are already aware of the misconduct. The Judge adds that
the Lender attempts to limit the reach of the McGill Rule by
suggesting it only applies to plaintiffs seeking to enjoin false or
misleading advertising on behalf of the general public. The Panel
is not persuaded. California's consumer protection laws must be
liberally, not narrowly, applied.
Judge O'Leary opines that the Appellate Court found no case, and
the Lender cites to none, holding the remedy of public injunctions
under CLRA and California's Unfair Competition Law should be
limited to false advertising claims. The Appellate Court is also
unpersuaded by the Lender's argument this lawsuit challenges only
the interest rates charged in the putative class members' loans
and, therefore, they primarily seek private relief with the
injunction.
The Lender also asserts that the trial court also erred by
concluding the entire arbitration provision was unenforceable
simply because the Class Waiver clause was invalid. Judge O'Leary
agrees with the Customers' assertion that the Lender's argument is
illogical because it requires the Appellate Court to initially
determine the agreement is invalid before the trial court.
The Appellate Court concludes that the Lender's interpretation of
the agreement is incorrect, and in any event, the argument is now
moot. As predicted by the Customers, because the Appellate Court
has determined the Class Waiver was unenforceable, it follows that
the entire arbitration provision becomes void as clearly and
unambiguously stated in paragraphs 14(h) of the Customers' loan
agreements [poison pill provision] and 14(n) [severability and
survival provision]. If for the sake of argument, the Appellate
Court were to accept the Lender's interpretation of the "subject to
the right to appeal" language, the Panel could not say the trial
court erred by denying the motion to arbitrate. After all, the
Appellate Court has reached the same conclusion as the trial court.
It is no longer relevant the trial court's order may have been
premature, Judge O'Leary states.
In any event, the Appellate Court does not interpret the agreement
as requiring an appellate decision before the trial court could
apply the poison pill or severability provisions of the agreement.
Both paragraphs 14(h) and 14(n) clearly and unambiguously state the
arbitration provisions cannot be saved if the Class Waiver is
deemed invalid. The Class Waiver was unequivocally deemed
"non-severable," Judge O'Leary points out.
The Lender's final argument is the FAA preempts McGill. In its
briefing, the Lender notes two telecommunication companies, AT&T
Mobility LLC and Comcast Corporation, have asked the United States
Supreme Court overturn the Ninth Circuit in two companion cases
ruling the FAA does not preempt the McGill Rule. The Lender asserts
that the Appellate Court should stay the appeal until the high
court renders a decision. Encouraged by these pending petitions,
the Lender presents a lengthy argument about why the Supreme Court
incorrectly decided the McGill case.
As noted by the Customers in their briefing, on June 1, 2020, the
Supreme Court denied review of the Ninth Circuit rulings -- AT&T
Mobility LLC v. McArdle (2020 ___ U.S. ___) 140 S.Ct. 2827, 207 L.
Ed. 2d 159; Comcast Corp. v. Tillage (2020 ___ U.S. ___) 140 S.Ct.
2827, 207 L. Ed. 2d 158. Insofar as the Lender thinks McGill was
wrongly decided, the argument fails, as the Appellate Court is
bound to follow the precedent of the California Supreme Court,
Judge O'Leary explains. Moreover, the Appellate Court finds its
analysis to be legally sound and persuasive, as does the Ninth
Circuit. It concludes the Lender's arguments the FAA preempts the
McGill Rule lack merit, and there is no basis to stay the appeal.
Accordingly, the order is affirmed. The Appellant's motion for
judicial notice of documents relating to the Lender's licensing is
denied because the information was not before the trial judge and
not relevant to the Panel's analysis. The Respondents will recover
their costs on appeal.
A full-text copy of the Court's Opinion dated Jan. 11, 2021, is
available at https://tinyurl.com/y2wq45zd from Leagle.com.
Cohelan Khoury & Singer, Isam C. Khoury -- ikhoury@ckslaw.com --
Michael D. Singer -- msinger@ckslaw.com -- and Kristina De La Rosa
-- kdelarosa@ckslaw.com -- Mesriani Law Group and Rodney Mesriani
-- rodney@mesriani.com -- for Plaintiffs and Respondents.
Ballard Spahr LLP and Marcos D. Sasso -- sassom@ballardspahr.com --
for Defendant and Appellant.
FCI OAKDALE: Steven Rast Suit Seeks to Certify Class of Prisoners
-----------------------------------------------------------------
In the class action lawsuit captioned as Steven Z. Rast, v. Warden
Ma'at, et al., Case No. 2:20-cv-01503-TAD-KK (W.D. La.), the
Plaintiff asks the Court to enter an order:
1. certifying this action as a class action defined as
follows:
"all prisoners who are incarcerated at the Federal
Correctional Institution II, Oakdale, Louisiana, during
the ongoing COVID-19 pandemic;"
The following are excluded from the Class: (1) any judge
presiding over this action and members of their family;
(2) any prisoners' subsidiaries, parents, successors,
predecessors, and any entity in which any prisoner or his
parent has a controlling interest (as well as current or
former employees, officers, and directors); (3) persons
who properly execute and file a timely request for
exclusion from the Class; (4) persons whose claims in this
matter have beneficially adjudicated on the merits or
otherwise released; (5) Plaintiff's counsel and counsel
for any Defendant; and (6) the legal representatives,
successors, and assigns of any such excluded persons; and
2. adding the following plaintiffs to this action:
all Plaintiffs are incarcerated and housed at the Federal
Correctional Institution II, Oakdale, Louisiana:
-- Addison, Lonnie
-- Barnett, John
-- Brockington, Alonzo
-- Bernal-Salazar, Juan
-- Bullard, Jerry
-- Burgess, Brian
-- Camilo, Gary
-- Campbell, Cairro
-- Cannon-Guzman, Roberto
-- Cardenas-Meneses, Joel
-- Catano-Lopez, Edward
-- Chavez, Carlos
-- Cifuentes, Jorge
-- Cruz-Perez, Rodrigo
-- Delao-Lopez, Mario
-- Elmezain, Mohammad
-- Fernandez-Ramos, Reyes
-- Galvan, Enrique
-- Gaton, Christian
-- Gonzalez-Chavez, Manuel
-- Gonzalez, Jesus
-- Goodman, Terrance
-- Green, Ronrico
-- Groover, Jeffrey
-- Guizar-Hernandez, Javier
-- Hernandez-Gonzalez, Nicolas
-- Hernandez-Hernandez, Jose
-- Hernandez-Madrid, Jose
-- Higgins, Wallace
-- Hollins, Kevin
-- Jimenez, Edwin
-- Jimenez-Nava, Juan
-- Kelly, Joseph
-- Larry, Lawrence
-- Leon, Torres
-- Lopez, Nicolas
-- Martinez, Homar
-- Mediola-Martinez, Maximo
-- Meraz-Magana, Apolinar
-- Micolta-Sinisterra, Silvio
-- Murillo, Jose L.
-- Norris, Evan
-- Palacios-Dominguez, Angelio
-- Potter, Brandon
-- Proffitt, Michael
-- Rivera, Ricardo
-- Rodas, Manuel
-- Romans, Richard
-- Rowlett, Shawn
-- Rouse, Matthew
-- Sanchez, Luis Isaac
-- Sanford, Dontrelle
-- Thomas, Edward
-- Tobias, Mark
-- Valdez, Narciso
-- Valencia, Gabriel
-- Valenzuela, Victor
-- Vance, James
-- Wolfe II, Charles
-- Worthey, Dustin
-- Wright Jr., Richard
Plaintiff Rast brings this action for damages and other legal and
equitable remedies resulting from the civil rights violations of
the Plaintiff's Fifth, Eighth, and Fourteenth Amendment rights
under the United States Constitution committed by the Defendants.
The Defendants have arbitrarily, capriciously, systematically, and
with deliberate indifference held Plaintiffs in conditions that put
each plaintiff in danger of physical harm or death. says the
complaint.
FCI Oakdale is a low-security facility. FCI Oakdale is located in
central Louisiana, thirty-five miles south of Alexandria.
A copy of the Plaintiff's motion to certify class dated Jan. 14,
2020 is available from PacerMonitor.com at https://bit.ly/3nTkvxh
sat no extra charge.[CC]
FIAT CHRYSLER: Distribution of Koopman Settlement Funds Granted
---------------------------------------------------------------
In the case, GARY KOOPMANN, TIMOTHY KIDD and VICTOR PIRNIK,
Individually and on Behalf of All Others Similarly Situated,
Plaintiff(s) v. FIAT CHRYSLER AUTOMOBILES N.V., FCA US, LLC, RONALD
ISELI AND ALESSANDRO BALDI, AS CO-EXECUTORS FOR THE ESTATE OF
SERGIO MARCHIONNE, SCOTT KUNSELMAN, MICHAEL DAHL, STEVE MAZURE and
ROBERT E. LEE, Defendants, Case No. 1: 15-cv-07199-JMF (S.D.N.Y.),
Judge Jesse M. Furman of the U.S. District Court for the Southern
District of New York granted the Plaintiffs' Motion for
Distribution of Class Action Settlement Funds.
The funds that are currently in the Net Settlement Fund (less any
necessary amounts to be withheld for payment of potential tax
liabilities and related fees and expenses) will be distributed on a
pro rata basis to the Authorized Claimants identified in Exhibits
C-1 and C-2 to the Declaration of Nicholas Schmidt Concerning the
Results of the Claims Administration Process, at the direction of
the Class Counsel, The Rosen Law Firm P.A. and Pomerantz LLP,
pursuant to the Stipulation and Agreement of Settlement filed with
the Court on April 5, 2019, and the Plan of Allocation of the Net
Settlement Fund set forth in the Notice of Pendency and Proposed
Settlement of Class Action that was distributed pursuant to the
Court's prior Order.
Any person asserting any rejected or subsequently filed claims are
finally and forever barred as of May 21, 2020, the date used to
finalize the administration based on the Schmidt Declaration.
The checks for distribution to Authorized Claimants will bear the
notation "CASH PROMPTLY, VOID AND SUBJECT TO RE-DISTRIBUTION 180
DAYS AFTER DISTRIBUTION DATE." The Class Counsel and the Claims
Administrator, Epiq Class Action & Claims Solutions, Inc., are
authorized to locate and/or contact any Authorized Claimant who has
not cashed his, her, or its check within said time.
Pursuant to the Plan of Allocation, if any funds remain in the Net
Settlement Fund by reason of uncashed checks or otherwise, then,
after Epiq has made reasonable and diligent efforts to have the
Settlement Class Members who are entitled to participate in the
distribution of the Net Settlement Fund cash their distribution
checks, any balance remaining in the Net Settlement Fund after
three months from the initial distribution (whether by reason of
tax refunds uncashed checks or otherwise), the Claims
Administrator, shall, if feasible:
(a) first, pay any amounts mistakenly omitted from the initial
disbursement;
(b) second, pay any additional settlement administration fees,
costs, and expenses, including those of the Class Counsel
as may be approved by the Court; and
(c) finally, make a second distribution to claimants, who
cashed their checks from the initial distribution and who
would receive at least $10, after payment of the estimated
costs, expenses, or fees to be incurred in administering
the Net Settlement Fund and in making the second
distribution, if such second distribution is economically
feasible.
A full-text copy of the Court's Jan. 12, 2021 Order is available at
https://tinyurl.com/y6m2uznv from Leagle.com.
GEICO GENERAL: Plaintiffs Ask Court to Amend Reply Brief
--------------------------------------------------------
In the class action lawsuit Re GEICO General Insurance Company,
Case No. 4:19-cv-03768-HSG (N.D. Cal.), the Plaintiffs ask Court to
amend/correct the reply that they filed in support of their motion
for class certification.
After the Plaintiffs filed their reply, the Defendant GEICO sought
to confer with Plaintiffs. The Parties reached the agreement that
Plaintiffs would amend/correct their reply brief.
A copy of the motion to amend/correct plaintiffs' reply in support
of class certification dated Jan. 14, 2020 is available from
PacerMonitor.com at https://bit.ly/38Wn1yz at no extra charge.[CC]
Counsel the for Plaintiffs and the Proposed Classes, are:
Annick M. Persinger, Esq.
Mallory Morales, Esq.
TYCKO & ZAVAREEI LLP
10880 Wilshire Blvd., Suite 1101
Los Angeles, CA 90024
Telephone: (510) 254-6808
E-mail: apersinger@tzlegal.com
mmorales@tzlegal.com
- and -
Edmund A. Normand, Esq.
Jacob L. Phillips, Esq.
NORMAND PLLC
3165 McCrory Place, Ste. 175
Orlando, FL 32803
Telephone: (407) 603-6031
E-mail: service@ednormand.com
ed@ednormand.com
jacob@normandpllc.com
- and -
Michael Louis Kelly, Esq.
Joshua A. Fields, Esq.
KIRTLAND & PACKARD LLP
1638 South Pacific Coast Highway
Redondo Beach, CA 90277
Telephone: (310) 536-1000
Facsimile: (310) 536-1001
E-mail: mlk@kirtlandpackard.com
jf@kirtlandpackard.com
- and -
Andrew John Shamis, Esq.
SHAMIS & GENTILE, P.A.
14 NE 1st Ave, Ste 1205
Miami, FL 33132
Telephone: (305) 479-2299
E-mail: ashamis@shamisgentile.com
- and -
Scott Edelsberg, Esq.
EDELSBERG LAW, PA
20900 NE 30th Ave., Suite 417
Aventura, FL 33180
Telephone: (305) 975-3320
E-mail: scott@edelsberglaw.com
GOODRX HOLDINGS: Levi & Korsinsky Reminds of February 16 Deadline
-----------------------------------------------------------------
The following statement is being issued by Levi & Korsinsky, LLP:
To: All persons or entities who purchased or otherwise acquired
securities of GoodRx Holdings, Inc ("GoodRx ") (NASDAQ: GDRX)
between September 23, 2020 and November 16, 2020. You are hereby
notified that a securities class action lawsuit has been commenced
in the United States District Court for the Central District of
California. To get more information go to:
https://www.zlk.com/pslra-1/goodrx-holdings-inc-loss-submission-form?prid=12174&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: at the time of the IPO, unbeknownst to investors,
Amazon.com, Inc. was developing and would soon introduce its own
online and mobile prescription medication ordering and fulfillment
service that would directly compete with GoodRx. Defendants timed
the IPO so that it was priced before Amazon announced its online
pharmaceutical business to facilitate the IPO and create artificial
demand for the common shares sold therein, as well to maximize the
amount of money the Company and the selling stockholders could
raise in the IPO. Given defendants' knowledge of Amazon's intention
to enter the online pharmaceutical business, and their misleading
statements about GoodRx's competitive position made
contemporaneously with that knowledge, defendants' materially false
and/or misleading statements alleged herein were made willfully and
caused GoodRx common stock to trade at artificially inflated prices
during the Class Period.
If you suffered a loss in GoodRx you have until February 16, 2021
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. [GN]
GOOGLE LLC: Kavulak Sues Over App Market Monopoly
-------------------------------------------------
Alison Kavulak, individually and on behalf of all others similarly
situated, Plaintiffs, v. Google LLC, Google Ireland Limited, Google
Commerce Limited, Google Asia Pacific Pte. Limited and Google
Payment Corp., Defendants, Case No. 20-cv-09421 (N.D. Cal.,
December 30, 2020), seeks damages, injunctive relief, and other
relief under Sections 4, 12, and 16 of the Clayton Act including
Section 2 of the Sherman Antitrust Act and for violation of the
Unfair Competition Act.
Google is a technology company that provides internet-related
services and products, including online advertising technologies
and a search engine. It is a wholly-owned subsidiary of Alphabet
Inc.
Google's Play Store is available to mobile device users running
Google's Android operating system which Google claims to be an
"open" source software. Google allegedly deterred competition in
the market for Android mobile applications and products sold with
such apps. McCready claims that users have overpaid for such
products due to Google's monopolization of this market.
Google's market dominance of Android OS was allegedly achieved
through a series of contracts with distributors designed to
minimize competition. Google requires OEMs such as LG, Motorola,
and Samsung to enter into agreements specifically forbidding them
from developing or distributing versions of Android that do not
comply with Google-controlled technical standards.
Kavulak purchased application(s) and/or made in-app purchase(s)
through the Google Play Store. [BN]
Plaintiff is represented by:
Dennis Stewart, Esq.
GUSTAFSON GLUEK PLLC
600 B Street, 17th Floor
San Diego, CA 92101
Telephone: (619) 595-3299
Email: dstewart@gustafsongluek.com
- and -
Daniel E. Gustafson, Esq.
Daniel C. Hedlund, Esq.
Daniel J. Nordin
Ling S. Wang, Esq.
GUSTAFSON GLUEK PLLC
Canadian Pacific Plaza
120 South Sixth Street, Suite 2600
Minneapolis, MN 55402
Telephone: (612) 333-8844
Facsimile: (612) 339-6622
Email: dgustafson@gustafsongluek.com
dhedlund@gustafsongluek.com
dnordin@gustafsongluek.com
lwang@gustafsongluek.com
GOPLUS CORP: Arbitration Ruling as to McLane's PAGA Claim Affirmed
------------------------------------------------------------------
In the case, CHRISTOPHER McLANE, Plaintiff and Respondent v. GOPLUS
CORP. et al., Defendants and Appellants, Case No. E072046, E072049
(Cal. App.), the Court of Appeals of California for the Fourth
District, Division Two, reversed in part and affirmed in part the
trial court's order denying GoPlus and Costway.com Inc.'s joint
petition to compel arbitration of McLane's claims.
GoPlus hired McLane in January 2018. As part of his new employee
onboarding, he had to sign an "Acknowledgment" form. The
Acknowledgment is on GoPlus letterhead, states "ACKNOWLEDGMENT" at
the top, and contains three short, separately spaced paragraphs,
including the paragraph on the Arbitration Agreement.
The "Arbitration Agreement" paragraph states in full: "Notice: By
signing this acknowledgment you are agreeing that all disputes will
be decided by neutral arbitration, and you are giving up your right
to a jury trial or court trial." Immediately below the Arbitration
Agreement, there is a line for the employee's signature, a line for
the employee's printed name, and a line for the date.
McLane filed an individual action and a class action against GoPlus
and Costway alleging various employment-related claims. In his
individual action, he alleged claims of discrimination,
retaliation, and wrongful termination. In his class action, he
alleged wage-and-hour claims under the Labor Code, including one
claim under the Private Attorneys General Act.
GoPlus and Costway petitioned the trial court to compel McLane to
arbitrate his claims, arguing that he agreed to arbitrate the
claims when he agreed to arbitrate "all disputes" by signing the
Acknowledgment.
The trial court denied the petition. Relying on Metters v. Ralph's
Grocery Co. (2008) 161 Cal.App.4th 696, the trial court first found
that the parties did not form a contract because the Acknowledgment
"doesn't even look like a contract" and thus McLane did not agree
to its terms. It also found that, even if the parties had agreed
to the terms of the Acknowledgement, the Arbitration Agreement is
unconscionable and thus unenforceable. The trial court reasoned
that the Arbitration Agreement lacks mutuality in that "nothing is
said about GoPlus giving up any of its rights" and it does not
explain "where the case will be arbitrated or under what rules of
arbitration it would proceed."
GoPlus and Costway appeal. They contend the trial court
erroneously relied on Metters, and concluded that McLane did not
agree to the Arbitration Agreement despite having signed the
Acknowledgment.
The Court of Appeals concludes McLane and GoPlus formed a contract
when McLane signed the Acknowledgment. He, therefore, agreed to
the Arbitration Agreement's terms. Their bilateral agreement to
arbitrate is sufficient consideration to render the Arbitration
Agreement enforceable. The trial court erred in finding
otherwise.
The trial court agreed with McLane that, even if he agreed to the
Arbitration Agreement, it is unenforceable because it is
unconscionable.
The Appellate Court disagrees. It concludes that the Arbitration
Agreement is not substantively unconscionable. The CAA and
applicable case law will govern the parties' arbitration
proceedings because the Arbitration Agreement does not state the
proceedings will be governed by procedures different from those
prescribed in the CAA. It follows that the Arbitration Agreement's
terms are not substantively unconscionable.
Finally, to the extent that McLane argues the Arbitration Agreement
is unconscionable because GoPlus did not attach a copy of the
applicable arbitration rules, the Court rejects the argument. The
state Supreme Court explicitly held that an arbitration agreement
is not substantively unconscionable if it does not attach a copy of
the applicable arbitration rules.
The trial court did not address McLane's argument that his PAGA
claim is not arbitrable. Nor did the trial court address GoPlus'
argument that McLane's PAGA claim was arbitrable if it sought
unpaid wages. GoPlus, however, waived any argument that McLane's
PAGA claim is arbitrable by failing to address the issue on appeal.
The Appellate therefore affirms the trial court's denial of
GoPlus' petition to compel arbitration of McLane's PAGA claim.
On remand, the trial court may stay McLane's PAGA claim pending the
resolution of the parties' arbitration proceedings or may allow it
to proceed in the trial court so long as the claim does not seek
unpaid wages. The trial court also may consider striking the
unpaid wages allegations from McLane's complaint, permitting him to
amend the complaint, and other measures.
Finally, in his opposition to Costway's petition to compel
arbitration, McLane argued that Costway cannot enforce the
Arbitration Agreement because it is not a signatory to it. In its
reply brief, Costway argued for the first time that it could
enforce the Arbitration Agreement because McLane's claims against
Costway are "intimately founded in and intertwined" with McLane's
claims against GoPlus.
The Court finds that neither party addresses on appeal the issue of
whether Costway can enforce the Arbitration Agreement. In any
event, the trial court's statements at the hearing suggest that it
found it unnecessary to decide whether Costway could enforce the
Arbitration Agreement because the court found it unenforceable as
unconscionable. But because it concludes the Arbitration Agreement
is enforceable, the Court holds that the trial court may determine
on remand whether Costway can enforce the Arbitration Agreement.
In light of the foregoing, the Court of Appeals reversed the trial
court's order denying GoPlus and Costway's petitions to compel
arbitration as to McLane's non-PAGA claims, and affirmed as to his
PAGA claim. The parties will bear their own costs on appeal.
A full-text copy of the Court's Jan. 12, 2021 Opinion is available
at https://tinyurl.com/y5x5evmn from Leagle.com.
Troutman Sanders, Eudeen Chang -- eudeen.chang@troutman.com --
Misha Tseytlin -- misha.tseytlin@troutman.com -- Mark J. Payne --
mark.payne@troutman.com -- and Lauren E. Grochow --
lauren.grochow@troutman.com -- for Defendants and Appellants.
Sansanowicz Law Group and Leonard H. Sansanowicz; Feldman Browne
Olivares and Lee R. Feldman -- lee@leefeldmanlaw.com -- for
Plaintiff and Respondent.
GTT COMMUNICATIONS: Federman & Sherwood Reminds of Mar. 15 Deadline
-------------------------------------------------------------------
Federman & Sherwood announces that on January 12, 2021, a class
action lawsuit was filed in the United States District Court for
the Central District of California against GTT Communications, Inc.
(NYSE: GTT). The complaint alleges violations of federal securities
laws, Sections 10(b) and 20(a) of the Securities Exchange Act of
1934 and Rule 10b-5, including allegations of issuing a series of
material or false misrepresentations to the market which had the
effect of artificially inflating the market price during the Class
Period, which is May 5, 2016 through November 9, 2020.
To learn how to participate in this action, please visit
https://www.federmanlaw.com/blog/federman-sherwood-announces-the-filing-of-a-securities-class-action-lawsuit-against-gtt-communications-inc-2/.
Plaintiff seeks to recover damages on behalf of all GTT
Communications, Inc. shareholders who purchased common stock during
the Class Period and are therefore a member of the Class as
described above. You may move the Court no later than Monday, March
15, 2021 to serve as a lead plaintiff for the entire Class.
However, in order to do so, you must meet certain legal
requirements pursuant to the Private Securities Litigation Reform
Act of 1995.
If you wish to discuss this action, obtain further information and
participate in this or any other securities litigation, or should
you have any questions or concerns regarding this notice or
preservation of your rights, please contact:
Robin Hester
FEDERMAN & SHERWOOD
10205 North Pennsylvania Avenue
Oklahoma City, OK 73120
Email to: rkh@federmanlaw.com [GN]
GTT COMMUNICATIONS: Frank Roth Sues Over Drop in Share Price
------------------------------------------------------------
FRANK ROTH BETEILIGUNGS GmbH, Individually and on behalf of all
others similarly situated v. GTT COMMUNICATIONS, INC., RICHARD D.
CALDER, JR., ERNIE ORTEGA, MICHAEL T. SICOLI, DANIEL M. FRASER, and
STEVEN BERNS, Case No. 2:21-cv-00270 (C.D. Cal., Jan. 12, 2021) is
a federal securities class action brought on behalf of the
Plaintiff and all persons or entities that purchased or otherwise
acquired GTT publicly traded securities from May 5, 2016 through
November 9, 2020, inclusive, seeking to recover compensable damages
under the Securities Exchange Act of 1934 arising from the
Defendants' issuance of false and misleading statements resulting
to the precipitous decline in the market value of the Company's
securities.
According to the complaint, throughout the Class Period, GTT stated
that its internal controls over financial reporting were
"effective" and provided "reasonable assurance" that all required
information was being disclosed. In truth, GTT's internal controls
over financial reporting were allegedly inadequate, which led to
years of inaccurate financial reporting, including failing to make
adequate adjustments to the Company's Cost of Telecommunication
Services and failing to recognize certain expenses.
The complaint further asserts that as a result of GTT's inadequate
internal controls, the Company announced after market hours on
August 10, 2020 that it would delay its filing of its quarterly
report for the quarter ended June 30, 2020. On November 9, 2020,
the Company announced its quarterly report for the quarter ended
September 30, 2020 would be delayed as well. The Company stated the
delay was caused by the ongoing review and "examining the
accounting for Cost of Telecommunications Services and [. . . ] a
number of issues in connection with the Company's previously issued
financial statements." On this news, GTT shares fell by $0.04, or
1%, to close at $3.96 on November 9, 2020, the suit says.
GTT operates a global communications network, providing
telecommunications services to large, multinational enterprises,
carriers, and governments across five continents.[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
GTT COMMUNICATIONS: Portnoy Law Announces Securities Class Action
-----------------------------------------------------------------
The Portnoy Law Firm advises investors that a class action lawsuit
has been filed on behalf of GTT Communications, Inc. ("GTT
Software" or "the Company") (NYSE: GTT) investors that acquired
securities between May 5, 2016 and November 9, 2020.
Investors are encouraged to contact attorney Lesley F. Portnoy, to
determine eligibility to participate in this action, by phone
310-692-8883 or email, or click here to join the case.
It is alleged in the complaint that GTT throughout the Class Period
misleading and/or false statements and/or failed to disclose that:
(1) GTT's internal controls suffered from issues related to the
recording and reporting of Cost of Telecommunications Services; (2)
GTT previously reported Cost of Telecommunications was inaccurate
or accounted for unsupported adjustments; (3) delays in the GTT's
10-Q quarterly reports would result from inadequate internal
controls; and (4) GTT's public statements were materially
misleading and/or false and/or lacked a reasonable basis, as a
result of the foregoing.
Please visit our website to review more information and submit your
transaction information.
The Portnoy Law Firm represents investors in pursuing claims
arising from corporate wrongdoing. The Firm's founding partner has
recovered over $5.5 billion for aggrieved investors. Attorney
advertising. Prior results do not guarantee similar outcomes. [GN]
GTT COMMUNICATIONS: Rosen Law Reminds Investors of Mar. 15 Deadline
-------------------------------------------------------------------
Rosen Law Firm, a global investor rights law firm, announces it has
filed a class action lawsuit on behalf of purchasers of the
securities of GTT Communications, Inc. (NYSE:GTT) between May 5,
2016 and November 9, 2020, inclusive (the "Class Period"). The
lawsuit seeks to recover damages for GTT investors under the
federal securities laws.
To join the GTT class action, go
http://www.rosenlegal.com/cases-register-1927.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.
According to the lawsuit, defendants throughout the Class Period
made false and/or misleading statements and/or failed to disclose
that: (1) the Company's internal controls suffered from issues
related to the recording and reporting of Cost of
Telecommunications Services; (2) the Company's previously reported
Cost of Telecommunications was inaccurate or accounted for
unsupported adjustments; (3) inadequate internal controls would
result in delays in the Company's 10-Q quarterly reports; and (4)
as a result of the foregoing, Defendants' public statements were
materially false and/or 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 March 15,
2021. 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-1927.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.
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.
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.[GN]
GTT COMMUNICATIONS: Schall Law Reminds of March 15 Deadline
-----------------------------------------------------------
The Schall Law Firm, a national shareholder rights litigation firm,
announces the filing of a class action lawsuit against GTT
Communications, Inc. ("GTT" or "the Company") (NYSE: GTT) for
violations of Sec10(b) and 20(a) of the Securities Exchange Act of
1934 and Rule 10b-5 promulgated thereunder by the U.S. Securities
and Exchange Commission.
Investors who purchased the Company's securities between May 5,
2016 and November 9, 2020, inclusive (the "Class Period"), are
encouraged to contact the firm before March 15, 2021.
If you are a shareholder who suffered a loss, click
https://bit.ly/3itiLK4 to participate.
We also encourage you to contact Brian Schall of the Schall Law
Firm, 2049 Century Park East, Suite 2460, Los Angeles, CA 90067, at
310-301-3335, to discuss your rights free of charge. You can also
reach us through the firm's website at www.schallfirm.com, or by
email at brian@schallfirm.com.
The class, in this case, has not yet been certified, and until
certification occurs, you are not represented by an attorney. If
you choose to take no action, you can remain an absent class
member.
According to the Complaint, the Company made false and misleading
statements to the market. GTT failed to maintain proper internal
controls related to the recording and reporting of Cost of
Telecommunications Services. The Company's Cost of
Telecommunications as previously reported included unsupported
adjustments and were otherwise inaccurate. The Company's failure to
maintain internal controls resulted in a delay in the Company's
10-Q quarterly reports. Based on these facts, the Company's public
statements were false and materially misleading throughout the
class period. When the market learned the truth about GTT,
investors suffered damages.
Join the case to recover your losses.
The Schall Law Firm represents investors around the world and
specializes in securities class action lawsuits and shareholder
rights litigation.
This press release may be considered Attorney Advertising in some
jurisdictions under the applicable law and rules of ethics. [GN]
HAYT & HAYT: Settlement Deal Gets Final Approval in Barenbaum Suit
------------------------------------------------------------------
In the class action lawsuit captioned as DANIEL BARENBAUM, on
behalf of himself and all others similarly situated, v. HAYT, HAYT
& LANDAU, LLC, Case No. 2:18-cv-04120-BMS (E.D. Pa.), the Hon.
Judge J. Schiller entered an order granting the motions for final
approval of the settlement agreement and for attorneys' fees and
costs.
The Court said, "Having reviewed the record before the Court and
the parties' submissions, the Court concludes that the requirements
of Rule 23 have been satisfied, and that the settlement is fair,
reasonable, and adequate. Further, the request for attorneys' fees
and costs is reasonable. The Court, therefore, grants the motions
to approve the settlement and for attorneys' fees and costs,
including an incentive award for Plaintiff. An Order approving the
settlement--with specific additional distribution requirements --
and the petition for attorneys' fees and costs will be docketed
separately."
Defendant Hayt issued deposition notices to judgment debtors in
Pennsylvania without ever intending to take a deposition. Daniel
Barenbaum received one of these notices and appeared at the
designated location, as did hundreds of other recipients of
the notices. Barenbaum filed a class action lawsuit contending that
Hayt's sending of the deposition notices without intent to take a
deposition violates the Fair Debt Collections Practices Act
(FDCPA). Following the Court's ruling on motions for summary
judgment and class certification, the parties reached an agreement
to settle the case.
The Court partially granted summary judgment to Plaintiff,
appointed Barenbaum as class representative, appointed Plaintiff's
counsel Marcus & Zelman, LLC as class counsel, and certified a
class, pursuant to Rule 23(b)(3), of:
"all consumers residing in the Commonwealth of Pennsylvania
who received a 'Notice of Deposition In Aid Of Execution'
from the Defendant on an obligation owed or allegedly owed
to Midland Funding, LLC, during the time period of September
25, 2017 to September 24, 2018, and who thereafter appeared
as directed at the date, time and location noticed for the
Deposition."
Settlement Terms
-- The proposed Settlement Class is the same class that the
Court previously certified pursuant to Rule 23(b)(3).
-- Under the proposed settlement agreement, Hayt will create
a class settlement fund of $8,200. Each class member who
did not opt out of the settlement will receive a pro rata
share of the class recovery, which is approximately $25.15
to each of the 326 class members.
-- Checks issued to claimants will be void sixty days from
issuance if they have not been cashed.
-- Any checks that have not been cashed by the void date will
be donated as a cy pres award to the Pennsylvania Legal
Aid Network, located at 118 Locust Street in Harrisburg,
Pennsylvania.
-- Hayt shall pay directly to the Class Administrator all the
reasonable costs and expenses necessary to administer and
facilitate the Settlement Agreement.
Hayt, Hayt & Landau is a collection law firm with offices in
Philadelphia, Pennsylvania.
A copy of the Court's memorandum dated Jan. 13, 2020 is available
from PacerMonitor.com at https://bit.ly/3syjeiP at no extra
charge.[CC]
HINJUDA GLOBAL: McCarthy Sues Over Call Center Staff's Unpaid Wages
-------------------------------------------------------------------
CHRISTOPHER MCCARTHY, individually and on behalf of all others
similarly situated v. HINJUDA GLOBAL SOLUTIONS, INC., Case No.
1:21-cv-01016-JES-JEH (C.D. Ill., Jan. 12, 2021) arises under the
Fair Labor Standards Act, the Illinois Minimum Wage Law, and the
Illinois Wage Payment and Collection Act for Defendant's failure to
pay Plaintiff and other similarly situated persons all earned
regular and overtime pay for all time worked.
Mr. McReynolds was employed from approximately December 2016 to
March 2018 as an hourly, non-exempt, telephone-dedicated employee
who worked in a call center owned and operated by Defendant located
in Peoria, Illinois.
Hinjuda Global Solutions, Inc. operates in the business process
management industry.[BN]
The Plaintiff is represented by:
James X. Bormes, Esq.
Catherine P. Sons, Esq.
LAW OFFICE OF JAMES X. BORMES, P.C.
8 South Michigan Avenue, Suite 2600
Chicago, IL 60603
Telephone: (312) 201-0575
- and -
Thomas M. Ryan, Esq.
LAW OFFICE OF THOMAS M. RYAN, P.C.
35 East Wacker Drive, Suite 650
Chicago, IL 60601
Telephone: (312) 726-3400
HOME DEPOT: Asks Court to Continue Class Certification Dates
------------------------------------------------------------
In the class action lawsuit captioned as STEVE MOSHTAGH, an
individual, on behalf of himself and others similarly situated, v.
THE HOME DEPOT U.S.A., INC., a Delaware corporation, Case No.
2:19-cv-01205-RSM (W.D. Wash.), Home Depot moves the Court for an
order to continue the current class certification briefing as
follows:
1. Plaintiff's deadline to file a class certification motion
is continued from January 21, 2021 to July 30, 2021;
2. Home Depot's deadline to oppose plaintiff's class
certification motion is continued from February 18, 2021
to August 26, 2021; and
3. The Plaintiff's deadline to reply is continued from to
March 4, 2021 to September 9, 2021
Shortly after the Court continued the class certification deadline,
Washington and much of the nation went into lockdown due to the
COVID-19 pandemic, preventing travel to the depositions scheduled
for June in California, Texas, Georgia, Oregon and Washington. The
parties submitted a further stipulation to continue the class
certification deadline to January 21, 2021, believing this would
allow sufficient time to resume travel and allow the depositions to
go forward in person; the Court granted that further continuance on
July 31, 2020.
In this putative wage and hour class action, plaintiff Steve
Moshtagh alleges that Home Depot violated Washington law by: (1)
making unlawful payroll deductions for plaintiff's contributions to
the Homer Fund, a charitable organization that provides grants to
Home Depot employees who experience financial hardship; (2) failing
to provide rest breaks to employees in 13 certain Washington stores
who work five-hour shifts; and (3) failing to pay employees for
time spent waiting to exit after the stores are closed to the
public ("waiting time claim"). The Plaintiff intends to move for
class treatment, including the waiting time claim. Home Depot
disputes plaintiff's claims and maintains they are not appropriate
for class treatment.
Home Depot is the largest home improvement retailer in the United
States, supplying tools, construction products, and services.
A copy of the Defendant's motion to continue class certification
deadlines dated Jan. 14, 2020 is available from PacerMonitor.com at
https://bit.ly/3qw9lAj at no extra charge.[CC]
Attorneys for the Defendant The Home Depot U.S.A., Inc., are:
D. Michael Reilly, Esq.
John S. Devlin III, Esq.
LANE POWELL PC
1420 Fifth Ave, Ste 4200
P.O. Box 91302
Seattle, WA 98111-9402
Telephone: (206) 223-7000
Facsimile: (206) 223-7107
E-mail: reillym@lanepowell.com
devlinj@lanepowell.com
- and -
Donna M. Mezias, Esq.
Dorothy F. Kaslow, Esq.
AKIN GUMP STRAUSS HAUER & FELD LLP
580 California Street, Suite 1500
San Francisco, CA 94104
Telephone: (415) 765-9500
Facsimile: (415) 765-9501
E-mail: dmezias@akingump.com
dkaslow@akingump.com
HUDSON HALL: New York Court Refuses to Reconsider Order in Stewart
------------------------------------------------------------------
In the lawsuit captioned DERRICK STEWART, on behalf of himself,
FLSA Collective Plaintiffs and the Class v. HUDSON HALL LLC, d/b/a
MERCADO LITTLE SPAIN, et al., Case No. 20 Civ. 885 (PGG) (SLC)
(S.D. N.Y.), the U.S. District Court for the Southern District of
New York denied the Plaintiff's motion for reconsideration of the
Court's December 9, 2020 Order denying his motion to lift the
Protective Order precluding the deposition of Jose Ramon Andres
Puerta, also known as Jose Ramon.
Plaintiff Stewart filed the putative collective and class action
asserting claims under the Fair Labor Standards Act and the New
York Labor Law against Corporate Defendants Hudson Hall, LLC,
Hudson Hall Holdings, LLC, Think Food Group, LLC, and Andres.
Stewart is seeking to recover: (1) unpaid overtime wages; (2)
unpaid wages for off-the-clock work; (3) liquidated damages; and
(4) attorneys' fees and costs.
Before the Court is Stewart's motion pursuant to the Individual
Practices of the Judge and Local Rule 6.3 seeking reconsideration
of the Court's December 9, 2020 Order.
On January 31, 2020, Stewart filed the original complaint in the
action, and on April 27, 2020, he filed the FAC. On May 29, 2020,
the Defendants filed the Motion to Dismiss. On October 19, 2020,
the Court issued the R&R, recommending that the Motion to Dismiss
be granted in part to the extent that the claims against Holdings
and Think be dismissed without prejudice, and denied in part as to
the claims against Andres. The Court also recommended that Stewart
be granted one final opportunity to amend his pleading. Neither
party has filed written objections to the R&R.
On October 2, 2020, the Defendants moved for a protective order
pursuant to Federal Rule of Civil Procedure 26(c)(1) precluding the
Plaintiff from taking Andres' deposition, or, in the alternative,
holding his deposition in abeyance until after the Court rules on
the Defendants' pending Motion to Dismiss." On October 19, 2020,
Stewart filed a Letter notifying the Court that he did not oppose
the Protective Order Motion. On October 20, 2020, the Court granted
the Protective Order Motion "as unopposed by the Plaintiff" and
entered the Protective Order.
On November 19, 2020, Stewart filed the Original Motion, citing
recent deposition testimony of Michael Principe, the Executive
Director of Mercado Little Spain, which he contends shows that
Andres (1) interviewed personnel, (2) hired personnel, (3) trained
personnel, (4) developed the menus, and (5) engaged in quality
control of the food.
In the December 9 Order, the Court held that Stewart "failed to
meet his burden to show an 'extraordinary circumstance or
compelling need' to take Andres' deposition at this time and there
was no discernable change of circumstance since Stewart decided not
to oppose the Protective Order." As is particularly relevant to the
current Motion, the Court held that Stewart's own and Principe's
deposition testimony did "not represent an extraordinary
circumstance or compelling need for Andres' testimony at this
time."
Magistrate Judge Sarah L. Cave opines that Stewart has failed to
meet his burden, for a second time, to justify the Court's entry of
a Protective Order precluding Andres' deposition at this time. She
concludes, in her discretion, that the Defendants' effort in
preparing a two-page response to Stewart's two-page Motion to
Reconsider does not justify the award of attorneys' fees and costs.
No delay has resulted from Stewart's Motion to Reconsider, nor has
the Court previously warned Stewart against making frivolous
filings and the risks of doing so. Therefore, the Magistrate Judge
denies the Defendants' request for an award of attorneys' fees and
costs.
For the reasons set forth in the Order, the Motion to Reconsider is
denied. The Defendants' request for fees and costs in opposing the
Motion to Reconsider is denied. The Clerk of the Court is
respectfully directed to close ECF No. 67.
A full-text copy of the Court's Order dated Jan. 11, 2021, is
available at https://tinyurl.com/y4cvokre from Leagle.com.
INNOCOLL HOLDINGS: Class Certification Bid Mooted w/o Prejudice
---------------------------------------------------------------
In the class action lawsuit re: INNOCOLL HOLDINGS PUBLIC LTD. CO.
SEC. LITIG., Case No. 2:17-cv-00341-GEKP (E.D. Pa.), the Hon. Judge
Gene E.K. Pratter entered an order:
1. mooting without prejudice the Plaintiffs' Motion for Class
Certification;
2. deeming moot the Motion to Seal and the Motion for Leave
to File Excess Pages; and
3. directing completion of all class certification discovery
and pertinent evidence as of February 3, 2021, after which
the Court will set the class certification briefing
schedule.
Innocoll Holdings operates as a specialty pharmaceutical company.
A copy of the Court's order dated Jan. 14, 2020 is available from
PacerMonitor.com at https://bit.ly/35O4mTJ at no extra charge.[CC]
INVITATION HOMES: McCumber Files Suit in Maryland
-------------------------------------------------
A class action lawsuit has been filed against Invitation Homes,
Inc. The case is styled as Francine McCumber, Erin Bird, Melissa
Lynch, La Shay Harvey, Maryah Marciniak, Brian Majka, Chad Whetman,
Tracy White, Rachel Osborn, Teresa Kerr formerly known as: Teresa
Marie Moore, as individuals, on behalf of themselves and on behalf
of others similarly situated v. Invitation Homes, Inc., a Maryland
corporation, Case No. 1:21-cv-00123-CCB (D. Md., Jan. 14, 2021).
The nature of suit is stated as Other Contract.
Invitation Homes -- https://www.invitationhomes.com/ -- is a home
leasing company, providing professionally managed, updated homes
for rent in desirable neighborhoods for a more inviting life.[BN]
The Plaintiffs are represented by:
William Nelson Sinclair, Esq.
SILVERMAN THOMPSON SLUTKIN AND WHITE LLC
201 N Charles St 26th Fl
Baltimore, MD 21201
Phone: (410) 385-2225
Fax: (410) 547-2432
Email: bsinclair@mdattorney.com
JBS SA: $24.5 Million Pork Price-Fixing Settlement Gets Early OK
----------------------------------------------------------------
bloomberglaw.com reports that the pork wholesalers leading a
proposed price-fixing class action over an alleged industrywide
cartel scheme won preliminary approval from a federal judge in
Minneapolis for a $24.5 million settlement with meatpacking giant
JBS SA.
Judge John R. Tunheim gave his tentative blessing to the deal,
which resolves claims brought by "direct" purchasers, but not
parallel retailer and consumer allegations consolidated with them
in the U.S. District Court for the District of Minnesota.
In addition to the payment, the pact includes a pledge by JBS to
cooperate against the other pork processors named as defendants.
Class counsel haven't yet requested attorneys' fees in connection
with the agreement.
The deal -- reached through "arm's length negotiations by highly
experienced counsel with the assistance of an experienced and
nationally renowned mediator" -- appears "fair, reasonable,
adequate, and in the best interests of the settlement class," the
judge wrote Wednesday.
The approval decision comes about three months after Tunheim let
the antitrust lawsuit proceed with claims that the country's top
pork processors fixed prices for years through secret data
exchanges and coordinated public statements about the need for herd
cutbacks.
In addition to JBS, the suit targets affiliates of Tyson Foods
Inc., Hormel Foods Corp., Clemens Food Group LLC, Seaboard Foods
LLC, Smithfield Foods Inc., Triumph Foods Inc., and Eli Lilly & Co.
subsidiary Agri Stats Inc., which runs industry databases.
It's part of a wave of price-fixing cases involving livestock and
protein, including chicken, beef, turkey, tuna, salmon, and eggs.
Tuna and chicken executives are also facing actual or potential
prison time for their roles in the alleged schemes.
JBS subsidiary Pilgrim's Pride Corp. -- which saw its CEO hit with
criminal charges in June -- will pay $111 million to resolve a
Justice Department probe. It also agreed Jan. 11 to settle the
proposed class action for $75 million, and Tyson said the same day
it had reached a deal in principle.
The beef industry, meanwhile, is contending with two separate
federal investigations into its prices.
Lockridge Grindal Nauen PLLP and Pearson Simon & Warshaw LLP are
lead counsel for the wholesalers. Cuneo Gilbert & LaDuca LLP and
Larson King LLP are lead counsel for the retailers. Gustafson Gluek
PLLC and Hagens Berman Sobol Shapiro LLP are lead counsel for the
consumers.
JBS is represented by Quinn Emanuel Urquhart & Sullivan LLP. Hormel
is represented by Faegre Drinker Biddle & Reath LLP. Tyson is
represented by Axinn, Veltrop & Harkrider LLP. Clemens is
represented by Kirkland & Ellis LLP.
Seaboard is represented by Stinson LLP. Smithfield is represented
by Gibson, Dunn & Crutcher LLP. Triumph is represented by Husch
Blackwell LLP. Agri Stats is represented by Hogan Lovells US LLP.
The case is In re Pork Antitrust Litig., D. Minn., No. 18-cv-1776,
1/13/21.
To contact the reporter on this story: Mike Leonard in Washington
at mleonard@bloomberglaw.com
To contact the editors responsible for this story: Rob Tricchinelli
at rtricchinelli@bloomberglaw.com; Patrick L. Gregory at
pgregory@bloomberglaw.com [GN]
JOHN VARVATOS: N.Y. Court Denies Bid for Judgment in Knox EPA Suit
------------------------------------------------------------------
In the case, TESSA KNOX, Plaintiff v. JOHN VARVATOS ENTERPRISES
INC., Defendant, Case No. 17 Civ. 772 (GWG) (S.D.N.Y.), Magistrate
Judge Gabriel W. Gorenstein of the U.S. District Court for the
Southern District of New York denied the Defendant's motion for
judgment as a matter of law except that it is entitled to a new
trial as to the issue of compensatory and punitive damages, unless
the Plaintiffs accept the proposed remittitur.
Plaintiff Knox, on behalf of a class of 72 current or former female
"sales professionals" of clothing retailer Varvatos, a menswear
brand, brought the action alleging that Varvatos' clothing
allowance policy, which included giving free clothing to male sales
professionals but not female sales professionals, violated various
federal and state anti-discrimination laws.
The Plaintiffs brought claims under the federal Equal Pay Act
("EPA"); the New York Equal Pay Act ("NY EPA"); Title VII of the
Civil Rights Act; and the New York Human Rights Law, alleging that
male sales professionals were given a Clothing Allowance and that
female sales professionals were not given equivalent compensation.
As background, the Varvatos dress code required the male sales
professionals to wear at least three articles of specified
Varvatos-branded clothing while on the sales floor. It required
female sales professionals to wear outfits that were appropriate
for the work environment and representative of the brand.
To assist the males in complying with the dress code, Varvatos'
Clothing Allowance allowed male sales professionals to select and
keep Varvatos clothing worth $3,000 at retail prices four times per
year--once for each season. The selections were known as "pulls."
Female sales professionals were not provided any free clothing.
Instead, they (and not the males) received a 50% discount on
women's clothes at "AllSaints," a sister brand of Varvatos.
A trial was held from Feb. 24, 2020, to March 2, 2020. On Feb. 28,
2020, the jury delivered a verdict in favor of the Plaintiffs as to
liability on all counts, awarded the compensatory damages sought by
the Plaintiffs ($3,000 per quarterly pull), and found Varvatos was
liable for liquidated damages and punitive damages. Following the
presentation of additional evidence, the jury fixed the award of
liquidated damages at $2,500 per quarter and punitive damages at
$2,500 per quarter. On March 23, 2020, a judgment was entered in
keeping with the jury's verdict awarding the Plaintiffs a total
judgment of $3,516,051.23.
Varvatos now moves for judgment as a matter of law on a number of
issues pursuant to Fed. R. Civ. P. 50 and also moves for a new
trial on certain issues, or a remittitur on damages, pursuant to
Fed. R. Civ. P. 59(a).
To prove their EPA claims, the Plaintiffs had to demonstrate that
(1) the employer pays different wages to employees of the opposite
sex; (2) the employees perform equal work on jobs requiring equal
skill, effort, and responsibility; and (3) the jobs are performed
under similar working conditions. Thus, the questions presented to
the jury were whether the jobs were substantially equal and whether
female sales professionals were paid less than their male
counterparts.
Judge Gorenstein finds that the jury had a legally sufficient
evidentiary basis to conclude that the jobs of male sales
professional and female sales professional required substantially
equal effort and responsibility. Furthermore, such a conclusion
was not against the weight of the evidence and thus no new trial is
warranted on the issue. Thus, Varvatos is not entitled to judgment
as a matter of law or a new trial on the issue of EPA or NY EPA
liability.
In addressing the employment discrimination claims, the jury was
instructed that the Plaintiffs must prove that [1] Varvatos paid
them less than men and [2] their sex was a motivating or
substantial factor in Varvatos's decision to pay them less than
men.
The Judge finds that the jury could properly conclude that Varvatos
paid female sales professionals less than male sales professionals.
Varvatos' reason for the difference in pay is based entirely on
the Clothing Allowance policy, which explicitly discriminates
between men and women in that it gives the Clothing Allowance only
to male employees, not female employees. Thus, Varvatos did not
give a "nondiscriminatory" explanation for the difference in pay
and the inference of discrimination raised under the McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973) framework was never
rebutted.
Varvatos sought to argue three affirmative defenses to the jury: 1)
that any sex discrimination was based on a factor other than sex;
2) that giving the Clothing Allowance only to men constituted a
"bona fide occupation qualification" ("BFOQ"); or 3) that the
policy was allowed as a "business necessity." The affirmative
defenses were raised during the charge conference pursuant to Rule
51(b)(2) and the Court refused to instruct the jury on them.
Varvatos argues that not presenting the first two arguments to the
jury was error, and that it is entitled to judgment as a matter of
law on these two defenses or, in the alternative, a new trial where
it can present these defenses.
The Judge opines that Varvatos presented no evidence justifying the
wage differential. There was no claim made in the case that the
selection for those jobs was based on sex. As to Varvatos'
challenge to the Court's refusal to charge the jury on the issue of
whether Varvatos had shown a "bona fide occupation qualification"
defense, the Judge finds that Varvatos was not also entitled to a
jury instruction on this defense because there was no evidence from
which it could argue that the defense applied. Thus, the defense
could not have been found to apply in the case.
What remains to be addressed are various issues that ultimately
relate to the award of damages: specifically, (1) the compensatory
damage award; (2) the jury's finding as to good faith; (3) the
jury's finding as to willfulness; and (4) the entitlement to
punitive damages and whether the punitive damage award was
excessive. Except as otherwise stated, the the Defendant seeks
relief both under Rule 50 and Rule 59 as to these issues.
Varvatos argues (a) that the Plaintiffs were not paid less than
their male counterparts; and (b) that the jury could not have
awarded the full retail value of the clothing ($3,000) per quarter
as compensatory damages
In sum, the Judge holds that Varvatos is not entitled to judgment
as a matter of law or a new trial except that it is entitled to a
new trial as to the issue of compensatory and punitive damages,
unless the Plaintiffs accept the proposed remittitur.
The Judge recognizes that there is a wide range of sums that a jury
could appropriately fix in an effort to answer that question. A
jury might reasonably have awarded a sum of money close to the
range of $250 per quarter if it viewed the Varvatos clothing as
having no value to the men outside the workplace. But in an effort
to respect the jury's obvious intention to award at the high end of
any permissible range, and for the reasons stated in the previous
section, the Judge concludes that an award of $1,500 per quarter
would be a reasonable award at the very high end of the range of
permissible awards. Accordingly, he grants the Defendant a new
trial on the issue of damages, unless the Plaintiffs accept a
remittitur of the compensatory damages award in the amount of
$1,500 per quarter.
As to the amount of punitive damages, the jury awarded less than
the amount of compensatory damages, or $2,500 per pull. But having
found that the compensatory damage number is excessive, the Judge
holds that it is clear that the jury's verdict as to punitive
damages rested on an error: that is, the error of assuming that the
compensatory damage award could appropriately be fixed at $3,000.
As he has already explained at length, however, the $3,000
compensatory award verdict cannot stand.
Because the punitive damage award was entirely dependent on this
finding, the Judge concludes that, if the punitive award is left
undisturbed, it will for all practical intents and purposes rest on
"an error that caused the jury to include in the verdict a
quantifiable amount that should be stricken." Indeed, leaving the
punitive damage award intact would thwart the jury's obvious
intention to fix an award of punitive damages at 83% of the
compensatory damage award. Accordingly, a new trial is ordered on
the issue of the amount of punitive damages unless the Plaintiffs
accept a concomitant reduction in the punitive damage award--that
is, to $1,250 per quarter.
For the foregoing reasons, Judge Gorenstein denied Varvatos' motion
except that the Defendant is granted a new trial on the issue of
compensatory and punitive damages unless the Plaintiffs agree in a
writing filed on the docket within 21 days to accept the remittitur
described.
If the Plaintiffs accept the remittitur, they will thereafter
consult with defendant and submit a new proposed amended judgment
consistent with the remittitur. If they do not accept, they will
so report to the Court and the Court will (1) set a deadline for
the filing of revised pretrial materials and (2) set a trial date
on the issue of compensatory and punitive damages to take place at
a time when jury trials in the courthouse resume.
A full-text copy of the Court's Jan. 12, 2021 Opinion & Order is
available at https://tinyurl.com/y3nydyut from Leagle.com.
JT ENTERPRISES: Faces Gill Suit Over Unpaid Wages for Caregivers
----------------------------------------------------------------
QUINETTA GILL, on behalf of herself and all others similarly
situated v. JT ENTERPRISES, INC. d/b/a ALWAYS BEST CARE OF GREATER
MILWAUKEE, Case No. 21-cv-54 (E.D. Wis., Jan. 13, 2021) is a
collective and class action brought pursuant to the Fair Labor
Standards Act and Wisconsin's Wage Payment and Collection Laws,
seeking relief for unpaid overtime compensation, unpaid agreed upon
wages, liquidated damages, costs, and attorneys' fees.
In approximately August 2020, Defendant hired Plaintiff into the
position of caregiver responsible for providing home health care
services. The Plaintiff is still currently employed with
Defendant.
JT Enterprises, Inc. is headquartered in New Berlin, Wisconsin, and
is a privately-owned franchise doing business as "Always Best Care
of Greater Milwaukee" providing home health care and related
services.[BN]
The Plaintiff is represented by:
James A. Walcheske, Esq.
Scott S. Luzi, Esq.
David M. Potteiger, Esq.
WALCHESKE & LUZI, LLC
235 N. Executive Drive, Suite 240
Brookfield, WI 53005
Telephone: (262) 780-1953
Facsimile: (262) 565-6469
E-mail: jwalcheske@walcheskeluzi.com
sluzi@walcheskeluzi.com
dpotteiger@walcheskeluzi.com
KROGER COMPANY: 9th Cir. Appeal Filed in Hawkins Mislabeling Suit
-----------------------------------------------------------------
Defendant The Kroger Company filed an appeal from a court ruling
entered in the lawsuit entitled SHAVONDA HAWKINS, on behalf of
herself and all others similarly situated, v. THE KROGER COMPANY,
Case No. 3:15-cv-02320-JM-AHG, in the U.S. District Court for the
Southern District of California, San Diego.
As reported in the Class Action Reporter on Dec. 28, 2020, Kroger
Company moved the Court for reconsideration of the Court's decision
dated November 9, 2020, granting Hawkins's motion for class
certification.
The Defendant contended that because the Court's jurisdictional
analysis has been called into question by the Ninth Circuit's
recent decision in Harris and because the Court failed to conduct
the required analysis of Hawkins's experts' testimony under the
Daubert standard, Kroger requested the Court to reconsider its
November 9, 2020 Order and decline Hawkins's Motion for Class
Certification.
The Court's decision dated November 9, 2020, certified a class of:
"all citizens of California who purchased, between January 1,
2010 and December 31, 2015, Kroger Bread Crumb containing
partially hydrogenated oil and the front label claim "0g
Trans Fat."
The Plaintiff clearly and repeatedly states, under oath, that she
relied on the "0g Trans Fat" label on Kroger's breadcrumbs in her
decision to purchase them. The lack of details as to why, when, and
how much she relied on the "0g Trans Fat" label is not a good
enough reason to conclusively decide, in a motion for class
certification, that Plaintiff is not credible, especially where
Kroger apparently failed to develop the record on this issue, the
Defendant stated.
The Plaintiff purchased Kroger breadcrumbs in San Diego about six
times per year from 2000 to July of 2015. She purchased the
breadcrumbs for use in her weekly family meatloaf. "During much of
the class period," the breadcrumbs were made with partially
hydrogenated oil ("PHO"), but displayed "0g Trans Fat" on the front
label. PHO is artificial trans fat. Kroger admits that because the
breadcrumbs contained PHO, they contained "trace amounts" of trans
fat. Kroger also claims, and Plaintiff does not dispute, that the
back label of the breadcrumbs listed PHO as an ingredient as early
as 2005.
The Defendant filed this petition for permission to appeal under
Federal Rule of Civil Procedure 23(f).
The appellate case is captioned as Shavonda Hawkins v. The Kroger
Company, Case No. 21-80001, in the United States Court of Appeals
for the Ninth Circuit, Jan. 13, 2021.[BN]
Plaintiff-Respondent SHAVONDA HAWKINS, on behalf of herself and all
others similarly situated, is represented by:
Gregory Weston, Esq.
THE WESTON FIRM
1405 Morena Boulevard, Suite 201
San Diego, CA 92110
Telephone: (619) 255-7098
E-mail: greg@westonfirm.com
Defendant-Petitioner THE KROGER COMPANY is represented by:
Jacob Harper, Esq.
Nicole Susan Phillis, Esq.
DAVIS WRIGHT TREMAINE LLP
865 S. Figueroa Street, Suite 2400
Los Angeles, CA 90017-2566
Telephone: (213) 633-6800
E-mail: jacobharper@dwt.com
nicolephillis@dwt.com
LEXINGTON LAW: Moore Files TCPA Suit in Utah
--------------------------------------------
A class action lawsuit has been filed against Heath. The case is
styled as Jennifer Moore, individually and on behalf of all others
similarly situated v. John C. Heath doing business as: Lexington
Law Firm, Case No. 2:21-cv-00027-TC (D. Utah, Jan. 14, 2021).
The lawsuit is brought over alleged violation of the Telephone
Consumer Protection Act for Restrictions of Use of Telephone
Equipment.
John Heath --
https://www.lexingtonlaw.com/about-lexington-law/profiles -- was
born and raised in Salt Lake City, Utah. He received his BA from
the University of Utah and his Juris Doctor from Ohio Northern
University.[BN]
The Plaintiff is represented by:
Rebecca Anne Evans, Esq.
LAWHQ LLC
299 S Main ST. #1300
Salt Lake City, UT 84111
Phone: (385) 233-6612 x. 3152
Email: rebecca@lawhq.com
LINCOLN LIFE: VLF's Class Cert. Filing Deadline Extended to June 7
------------------------------------------------------------------
In the class action lawsuit captioned as Vida Longevity Fund, LP v.
Lincoln Life & Annuity Company of New York, Case No. e
1:19-cv-06004-ALC-DCF (S.D.N.Y.), the Hon. Judge Debra Freeman
entered an order approving the joint proposed modified schedule for
expert discovery and class certification briefing, set out as
follows:
1. Expert discovery shall be conducted on the following
schedule:
a. The deadline for Plaintiff to serve its opening expert
report(s) shall be extended from February 15, 2021, to
March 1, 2021;
b. The deadline for Defendant to serve its rebuttal
reports shall be extended from March 29, 2021, to April
12, 2021;
c. The deadline for Plaintiff to serve reply or rebuttal
expert report(s) shall be set on May 14, 2021;
d. The deadline for the completion of expert discovery
shall be extended from May 24, 2021, to June 7, 2021.
2. The Class Certification briefing shall be conducted on the
following schedule:
a. The deadline for Plaintiff to file a motion for class
certification shall be extended from May 7, 2021, to
June 7, 2021;
b. The deadline for Defendant to file its opposition to
the motion for class certification shall be extended
from July 9, 2021, to July 23, 2021;
c. The deadline for Plaintiff to file a reply in support
of its motion for class certification shall be extended
from August 6, 2021, to August 20, 2021;
Vida Longevity Fund is located in Austin, Texas, and is part of the
Asset Management Industry.
Lincoln Life & Annuity Company of New York operates as an insurance
firm. The Company offers annuities, life insurance, and retirement
planning services.
A copy of the Court's order dated Jan. 13, 2020 is available from
PacerMonitor.com at https://bit.ly/38U3M92 at no extra charge.[CC]
The Plaintiff is represented by:
Nicholas C. Carullo, Esq.
SUSMAN GODFREY LLP
1301 Avenue of the Americas, 32nd Floor
New York, NY 10019
Telephone: (212) 336-8330
Facsimile: (212) 336-8340
The Defendant is represented by:
John F. LaSalle, Esq.
BOIES SCHILLER FLEXNER LLP
55 Hudson Yards
New York, NY 10001
Telephone: (212) 446-2300
Facsimile: (212) 446-2350
LOCAL ADVANTAGE: Fabricant Sues Over Unsolicited Telephone Calls
----------------------------------------------------------------
TERRY FABRICANT, individually and on behalf of all others similarly
situated v. LOCAL ADVANTAGE, INC., and DOES 1 through 10,
inclusive, and each of them, Case No. 2:21-cv-00304 (C.D. Cal.,
Jan. 13, 2021) seeks damages and any other available legal or
equitable remedies resulting from the illegal actions of the
Defendant in negligently, knowingly, and/or willfully contacting
Plaintiff on his cellular telephone in violation of the Telephone
Consumer Protection Act.
The complaint alleges that the Defendant used an "automatic
telephone dialing system" to place its calls to Plaintiff seeking
to solicit its services. The Defendant did not possess Plaintiff's
"prior express consent" to receive calls using an artificial or
prerecorded voice on his cellular telephone, the suit says.
Local Advantage, Inc. is an online marketing company.[BN]
The Plaintiff is represented by:
Todd M. Friedman, Esq.
Adrian R. Bacon, Esq.
LAW OFFICES OF TODD M. FRIEDMAN, P.C.
21550 Oxnard St., Suite 780
Woodland Hills, CA 91367
Telephone: (323) 306-4234
Facsimile: (866) 633-0228
E-mail: tfriedman@toddflaw.com
abacon@toddflaw.com
LONGCAP LAMSON: Paguada Files ADA Suit in S.D. New York
-------------------------------------------------------
A class action lawsuit has been filed against LongCap Lamson
Products, LLC. The case is styled as Josue Paguada, on behalf of
himself and all others similarly situated v. LongCap Lamson
Products, LLC, Case No. 1:21-cv-00362-JPO (S.D.N.Y., Jan. 14,
2021).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
LongCap Lamson Products, LLC, (formally Lamson & Goodnow) --
https://lamsonproducts.com/ -- maker of LamsonSharpa cutlery, is
the oldest cutlery manufacturer in the United States.[BN]
The Plaintiff is represented by:
Mars Khaimov, Esq.
10826 64th Avenue, Ste. 2nd Floor
Forest Hills, NY 11375
Phone: (917) 915-7415
Email: marskhaimovlaw@gmail.com
MACMILLAN PUBLISHERS: Simoni Sues Over Fraudulent Sale of E-Books
-----------------------------------------------------------------
STEPHEN SIMONI, Individually and on behalf of all others similarly
situated, (collectively, "Consumers") v. DOES 1 through 10,
inclusive, CHARLES E. SPICER, JR., and MACMILLAN PUBLISHERS INC.,
(collectively, "Macmillan"), Case No. 1:21-cv-00001-KPF (S.D.N.Y.,
Jan. 1, 2021) arises from alleged violations of the Defendants of
industry standards by fraudulently marketing and selling "ebooks"
while deliberately concealing from prospective customers that its
ebooks lack substantial portions of the printed book of the same
title in violation of the New York General Business Law.
The complaint contends that the Company continues to flout industry
practice and instead sells ebooks that purposely omit the
photographs and substantial textual information that are included
in the printed book of the same title.
Mr. Simoni was fraudulently solicited by Macmillan over the
Internet outside of New York to purchase an ebook.
Macmillan Publishers Inc. is a corporation incorporated in Delaware
and headquartered in New York that markets and sells both printed
and electronic versions of books it publishes.[BN]
The Plaintiff is represented by:
Stephen J. Simoni, Esq.
SIMONI LAW OFFICES
c/o Jardim, Meisner & Susser, PC
30B Vreeland Road, Suite 100
Florham Park, NJ 07932
Telephone: (917) 621-5795
E-mail: StephenSimoniLAW@gmail.com
MARRIOTT INTERNATIONAL: Martin Suit Seeks Class Action Settlement
-----------------------------------------------------------------
In the class action lawsuit captioned as CYRIL MARTIN; JENNIFER
MARTIN; RUSSELL BAIRD; CYNDY BAIRD; MICHAEL ARCHIBALD; SHELLEY
ARCHIBALD; STEVE OLSON; JULIE OLSON; ROBERT HAZELTON; and ALICIA
HAZELTON, individually and on behalf of all others similarly
situated, v. MARRIOTT INTERNATIONAL, INC.; KYO-YA HOTELS & RESORTS;
and DOE DEFENDANTS 1-50, Case No. 1:18-cv-00494-JAO-RT (D. Haw.),
the Plaintiffs asks the Court to enter an order:
1. preliminarily approving the class action settlement:
-- The settlement provides an Original Settlement Fund of
$1,825,435.48 and an Additional Funding of $350,000
creating a Total Available Settlement Fund of
$2,175,435.48 to a Settlement Class of at least 2,000
members.
2. conditionally certifying the Settlement Class for
settlement purposes only pursuant to the Agreement,
defined as:
"All United States and Canada residents (1) who booked and
paid for a stay (2) at one or more of the following
Hotels: The Royal Hawaiian, a Luxury Collection Resort;
The Moana Surfrider, a Westin Resort & Spa, Waikiki Beach;
Sheraton Waikiki; Sheraton Princess Kaiulani or Sheraton
Maui Resort & Spa, (3) for a stay that took
place on one or more dates between October 8, 2018 through
and including November 27, 2018."
The Settlement Class is further divided into Subclasses 1
and 2 based on the segments and/or booking channel through
which the Settlement Class members booked their stay:
-- Subclass 1 includes all Settlement Class members who
booked their stay directly with Marriott or a Hotel and
booking channels other than through a Wholesaler,
Online Travel Agent, or Group Booking ("Subclass 1
Members").
-- Subclass 2 includes all Settlement Class members who
booked their stay through a Wholesaler, Online Travel
Agent, or Group Booking ("Subclass 2 Members").
3. appointing the Plaintiffs as the class representatives;
4. approving their counsel as class counsel;
5. approving retention of the class administrator;
6. approving the proposed Dissemination Plan, which consists
of the Class Notice; and
7. setting a fairness hearing to determine final approval of
the proposed Settlement.
This action involves five hotels in the State of Hawaii: The Royal
Hawaiian, a Luxury Collection Resort, Moana Surfrider, a Westin
Resort & Spa, Sheraton Waikiki, Sheraton Princess Kaiulani, and
Sheraton Maui Resort & Spa (the Hotels). All five Hotels are
managed by Marriott. The Plaintiffs allege in the First Amended
Complaint (FAC) that on September 10, 2018, the employees of the
Hotels -- who are members of the Unite Here Local 5 Union (the
Union) -- voted to strike, with 95% of the Hotel workers voting in
favor of the strike. On November 20, 2018, Plaintiffs filed their
FAC claiming damages against Defendants for "the amounts they were
unfairly and/or deceptively required to pay" for their rooms at the
Hotels during the Strike. The FAC alleges "two counts: (1) Unfair
or Deceptive Acts or Practices under Chapter 480 Hawaii Revised
Statutes [(UDAP)], and (2) Unjust Enrichment."
The Plaintiffs allege that Defendants did not inform guests before
they arrived of the Strike at the Hotels and that the Strike would
impact the Hotel's services and amenities. The Defendants deny all
claims alleged in the FAC, deny all allegations of wrongdoing,
liability and damages as alleged by Plaintiffs in the Lawsuit.
A copy of the Plaintiffs' motion to certify class action settlement
dated Jan. 14, 2020 is available from PacerMonitor.com at
https://bit.ly/39HoBn6 at no extra charge.[CC]
Attorneys for the Plaintiffs individually and on behalf of all
others similarly situated, are:
James J. Bickerton, Esq.
Bridget G. Morgan-Bickerton, Esq.
BICKERTON LAW GROUP
A LIMITED LIABILITY LAW PARTNERSHIP
Topa Financial Center, Fort Street Tower
745 Fort Street, Suite 801
Honolulu, HA 96813
Telephone: (808) 599-3811
Facsimile: (808) 694-3090
E-mail: bickerton@bsds.com
morgan@bsds.com
MDL 2873: Womack Alleges Injury From Exposure to Toxic AFFF
-----------------------------------------------------------
JACK WOMACK v. v. 3M COMPANY (f/k/a Minnesota Mining and
Manufacturing Company); AGC CHEMICALS AMERICAS INC.; AMEREX
CORPORATION; ARCHROMA U.S., INC.; ARKEMA, INC.; BUCKEYE FIRE
EQUIPMENT COMPANY; CARRIER GLOBAL CORPORATION; CHEMDESIGN PRODUCTS,
INC.; CHEMGUARD, INC.; CHEMICALS, INC.; CHEMOURS COMPANY FC, LLC;
CHUBB FIRE, LTD; CLARIANT CORP.; CORTEVA, INC.; DEEPWATER
CHEMICALS, INC.; DU PONT DE NEMOURS INC. (f/k/a DOWDUPONT INC.);
DYNAX CORPORATION; E.I. DU PONT DE NEMOURS AND COMPANY;
KIDDE-FENWAL, INC.; KIDDE PLC; NATION FORD CHEMICAL COMPANY;
NATIONAL FOAM, INC.; THE CHEMOURS COMPANY; TYCO FIRE PRODUCTS LP,
as successor-in-interest to The Ansul Company; UNITED TECHNOLOGIES
CORPORATION; UTC FIRE & SECURITY AMERICAS CORPORATION, INC. (f/k/a
GE Interlogix, Inc.), Case No. 2:20-cv-04499-RMG (D.S.C., Dec. 31,
2020) is a class action brought on behalf of the Plaintiff and
others similarly situated seeking damages for personal injury
resulting from exposure to aqueous film-forming foams (AFFF)
containing the toxic chemicals collectively known as per and
polyfluoroalkyl substances (PFAS).
AFFF is a specialized substance designed to extinguish
petroleum-based fires. It has been used for decades by military and
civilian firefighters to extinguish fires in training and in
response to Class B fires.
According to the complaint, the Defendants collectively designed,
marketed, developed, manufactured, distributed, released, trained
users, produced instructional materials, promoted, sold, and/or
otherwise released into the stream of commerce AFFF with knowledge
that it contained highly toxic and bio persistent PFASs, which
would expose end users of the product to the risks associated with
PFAS. These PFAS binds to proteins in the blood of humans exposed
to the material and remains and persists over long periods of time.
Due to their unique chemical structure, PFAS accumulates in the
blood and body of exposed individuals.
The Defendants' PFAS-containing AFFF products were used by the
Plaintiff in their intended manner, without significant change in
the products' condition. The Plaintiff was unaware of the dangerous
properties of the Defendants' AFFF products and relied on the
Defendants' instructions as to the proper handling of the products.
The Plaintiff's consumption, inhalation and/or dermal absorption of
PFAS from Defendant's AFFF products caused the Plaintiff to develop
the serious medical conditions and complications, the suit says.
The Plaintiff seeks to recover compensatory and punitive damages
arising out of the permanent and significant damages sustained as a
direct result of exposure to the Defendants' AFFF products at
various locations during the course of the Plaintiff's training and
firefighting activities.
The Womack case has been consolidated in MDL No. 2873, In Re:
Aqueous Film-Forming Foams Products Liability Litigation. The case
is assigned to the Hon. Judge Richard Gergel.
The 3M Company is an American multinational conglomerate
corporation operating in the fields of industry, worker safety, US
health care, and consumer goods.[BN]
The Plaintiff is represented by:
Richard Zgoda, Jr., Esq.
Steven D. Gacovino, Esq.
GACOVINO, LAKE & ASSOCIATES, P.C.
270 West Main Street
Sayville, NY 11782
Telephone: (631) 600-0000
Facsimile: (631) 543-5450
- and -
Gregory A. Cade, Esq.
Gary A. Anderson, Esq.
Kevin B. McKie, Esq.
ENVIRONMENTAL LITIGATION GROUP, P.C.
2160 Highland Avenue South
Birmingham, AL 35205
Telephone: (205) 328-9200
Facsimile: (205) 328-9456
MDL 2875: Bids to Dismiss Liability Suit Over BP Drugs Partly OK'd
------------------------------------------------------------------
Judge Robert B. Kugler of the U.S. District Court for the District
of New Jersey, Camden Vicinage, granted in part the Defendants'
Motions to Dismiss Master Complaints in the case, IN RE VALSARTAN,
LOSARTAN, AND IRBESARTAN PRODUCTS LIABILITY LITIGATION. This
Document Relates to All Actions, MDL No. 2875 (RBK/JS) (D.N.J.).
Before the Court are the Defendants' Motions to Dismiss the three
Master Complaints filed in the MDL which involves the sale of a
generic blood pressure medication that was found to be contaminated
with probable human carcinogens. Two of these three Master
Complaints are the Economic Loss Master Complaint ("ELMC") and the
Medical Monitoring Master Complaint ("MMMC").
Because the MTDs seek dismissal of several claims for each set of
the Plaintiffs, the Court is issuing a series of opinions to
resolve the motions. Each opinion will be numbered with the
instant Opinion being the second in the series. The Opinion 2
resolves the Defendants' arguments relating to Article III
standing. An Order 2 of the same date accompanies the Opinion 2.
Hundreds of millions of Americans suffer from high blood pressure.
Two common medications used to treat the condition are Diovan and
Diovan HCT and Exforge and Exforge HCT. The case involves their
generic counterparts, Valsartan and its combination therapy with
hydrochlorothiazide and Amlodipine-valsartan and its combination
therapy with hydrochlorothiazide ("VCDs").
While generic drugs are supposed to be bioequivalent to their
brand-name counterparts, at some point these VCDs were found to be
contaminated with probable human carcinogens known as
N-nitrosodimethylamine ("NDMA") and N-nitrosodiethylamine ("NDEA").
This led to a recall of the VCDs in July of 2018.
The current lawsuits stem from the Defendants' manufacturing,
promotion, and sale of the VCDs and their subsequent recall. The
Plaintiffs, consumers and Third-Party Payors who purchased or made
reimbursements for the Defendants' contaminated VCDs, brought an
economic damage and a medical monitoring class action against the
Defendants. They also brought a personal injury action against
Defendants.
The Defendants are entities with various and sometimes overlapping
roles within the supply chain. They include the manufacturers of
the drug (both the manufacturers of the active pharmaceutical
ingredient and the manufacturers that make the finished drug
product), the wholesalers who obtain the finished drug product and
resell it to retailers, and consumer-level distributors.
On July 13, 2018, FDA announced the voluntary recalls of the VCDs
manufactured by Defendants and others due to the presence of NDMA
and NDEA. Two weeks later, it announced expanded recalls of
additional VCDs manufactured by the Defendants and non-parties and
repackaged by third parties. Subsequently, the FDA announced
numerous additional recalls of VCDs, and other similar products
manufactured, distributed, or sold by the Defendants as well as
non-parties. The FDA's testing of the other Defendants VCDs
revealed similar findings of NDMA and NDEA well in excess of the
limits.
Lawsuits quickly followed these voluntary recalls. Consumers and
third-party payors filed a class action alleging economic losses.
Consumers also filed a medical monitoring class action alleging
cellular damage, genetic harm, and/or an increased risk of
developing cancer as a result of exposure to the probable human
carcinogens in the VCDs. Lastly, personal injury claims were filed
on behalf of consumers who allegedly developed cancer as a result
of taking the contaminated VCDs. These actions were centralized by
the United States Judicial Panel on Multi-District Litigation and
transferred to the Court for pretrial purposes only.
Three Master Complaints were filed with the Court. Only the ELMC
and the MMMC are relevant now.
ELMC alleges economic damages based on the Defendants sale of VCDs
that were of a lesser quality and were adulterated and/or
misbranded (and thereby rendered worthless) through contamination
with probable human carcinogens. The ELMC asserts 18 claims on
behalf of classes of consumers and third-party payors in order to
recoup the amounts they paid for the Defendants' allegedly
worthless VCDs.
In the EMLC, the consumer class Plaintiffs are represented by 24
named Plaintiffs from the following states: (1) New York; (2) New
Mexico; (3) North Carolina; (4) South Carolina; (5) New Jersey; (6)
Texas; (7) Indiana; (8) Pennsylvania; (9) California; (10) Ohio;
(11) Massachusetts; (12) Mississippi; (13) Florida; (14) Virginia;
(15) Louisiana; (16) Kansas; (17) Georgia; and (18) Connecticut.
The named Plaintiffs allege they purchased one or more of the
Defendants' VCDs, that the Defendants expressly and impliedly
warranted their VCDs were the same as the registered listed drug,
had they known the product was not the same as the brand-name drug,
they would not have paid for it, and had the Defendants' deception
about the product's impurities been made known earlier, they would
not have paid for it. They alleged they purchased the VCDS from
the following: (1) ZHP; (2) Aurobindo; (3) Solco; (4) Mylan; (5)
Teva; (6) Camber; (7) Torrent; and (8) Hetero.
The Third-Party Payor Plaintiffs are represented by Plaintiff MSP
Recovery Claims, Series, LLC ("MSPRC") as they have assigned their
recovery rights to assert claims to MSPRC. MSRPC's assignors paid
$79 million on behalf of their enrollees and it is believed some of
those payments include payments for Defendants VCDs.
The MMMC alleges cellular damage, genetic harm, and/or an increased
risk of developing cancer based on ingestion to the Defendants'
contaminated VCDs. It asserts nine claims seeking injunctive and
monetary relief, including creation of a fund to finance
independent medical monitoring services, notification to all people
exposed to the contamination, examinations, testing, preventative
screening, and care and treatment of cancer resulting, at least in
part, from the exposure to the NDMA or NDEA contamination.
The consumer class Plaintiffs are represented by 10 named
Plaintiffs from the following states: (1) California; (2) Florida;
(3) Illinois; (4) Maryland; (5) New Jersey; (6) Pennsylvania; and
(7) West Virginia. Each was prescribed and used varying doses of
Defendants' VCDs for several years and allege that as a result of
the VCDs being contained with NDMA and NDEA they suffered cellular
and genetic injury that creates or increases the risk that they
will develop cancer.
The named Plaintiffs allege the following entities were the
distributors of their VCDs: (1) Camber; (2) Hetero USA; (3) Hetero
Labs; (4) Hetero; (5) Solco; (6) Prinston; (7) Huahai US; (8) ZHP;
(9) Walmart; (10) Aurobindo USA; (11) Aurolife; (12) Aurobindo;
(13) Actavis; (14) Teva; (15) Mylan Pharm; (16) Mylan Labs; (17)
Mylan; and (18) CVS.
The Manufacturer Defendants argue the ELMC and MMMC should be
dismissed for lack of Article III standing because: (1) the ELMC
does not allege an injury in fact; (2) the MMMC fails to plead
injuries fairly traceable to all defendants; and (3) both
complaints seek to assert claims under the laws of states in which
Plaintiffs do not reside and were not injured. The Wholesaler and
Pharmacy Defendants incorporate these arguments.
The Plaintiffs maintain both complaints properly allege Article III
standing because: (1) the ELMC alleges monetary harm--a
paradigmatic form of injury in fact; (2) the MMMC alleges both
physical and monetary harm; (3) the injuries alleged are fairly
traceable to the Manufacturers based on their misrepresentations;
(4) the injuries alleged are fairly traceable to Wholesalers due to
their control over the market; and (5) the named class
representatives may assert claims on behalf of out of state class
members.
First, Judge Kugler opines that, as the Defendants point out, the
Plaintiffs effectively concede the VCDs performed their intended
function--lowering blood pressure--when they allege the FDA advised
patients to continue taking VCDs because of the risks associated
with untreated high blood pressure. However, it does not mean the
Plaintiffs did not suffer an economic injury.
The Judge holds that the Defendants' attempt to cabin the economic
injury is directly contrary to Third Circuit precedent. In
Koronthaly v. L'Oreal USA, Inc., the Third Circuit concluded that
absent any allegation that the plaintiff received a product that
failed to work for its intended purpose or was worth objectively
less than what one could reasonably expect, the plaintiff has not
demonstrated a concrete injury-in-fact.
Moreover, the Plaintiffs' theory of injury-in-fact, that they did
not receive the benefit of their bargain, is not based solely on
the effectiveness of the VCDs. And, whether the Plaintiffs'
concession undermines their claim that the VCDs were "worthless"
amounts to an attack on the merits. Given the constraints on his
ability to subject the Plaintiffs' claims to additional scrutiny at
this point, the Judge is satisfied that they have alleged an
injury-in-fact.
Next, the Judge agrees with the Plaintiffs. The Plaintiffs argue
that the Third Circuit has unequivocally determined in medical
monitoring cases that exposure to contaminated products or a
medical device with a risk of failure constitutes an
injury-in-fact. The Plaintiffs' allegations that they consumed
VCDs contaminated with carcinogens and thereby suffered genetic and
cellular damage easily satisfy Article III's requirement that they
allege an "identifiable trifle" of an injury. The Defendants'
arguments conflate the legal sufficiency of the Plaintiffs' causes
of action with Article III standing.
The Judge then holds that he cannot conclude the named Plaintiffs
injuries are attributable to AmerisourceBergen Corporation from the
allegation that it sold "a large portion of the adulterated and/or
misbranded VCDs that were ultimately paid for by U.S. consumers."
Therefore, they have failed to satisfy the traceability requirement
for purposes of Article III standing with respect to the Defendants
listed in the Manufacturer Defendants' charts. However, the
Plaintiffs will be given the opportunity to amend their Complaint
and properly plead the bases for asserting claims against specific
Defendants.
Finally, because the Plaintiffs should be able to amend their
Complaints with relative ease to satisfy this requirement, the
Judge continue considers the remaining arguments raised by the
Defendants. He holds that the Plaintiffs are correct that
"unnamed, putative class members need not establish Article III
standing," so long as the class representatives have standing.
However, it does not squarely address the issue before the Court.
The issue is whether the named Plaintiffs have standing to assert
their claims, and more precisely, whether they have standing to
assert claims under the laws of states where they do not reside and
were not injured; and the answer flowing from Supreme Court
precedent would be no.
The MMMC and ELMC assert state specific claims under the laws of
all 50 states, and the District of Columbia and Puerto Rico. Yet,
named Plaintiffs, collectively, represent only 21 states -- New
York, New Mexico, North Carolina, South Carolina, New Jersey,
Texas, Indiana, Pennsylvania, California, Ohio, Massachusetts,
Mississippi, Florida, Virginia, Louisiana, Kansas, Georgia,
Connecticut, West Virginia, Maryland, and Illinois. As the named
Plaintiffs neither reside in nor have alleged they suffer an injury
in 31 other states and territories, their claims in these
jurisdictions will be dismissed without prejudice for want of
standing.
For the reasons he expressed, Judge Kugler granted in part the
Defendants' Motions to Dismiss. The Plaintiffs have up and
including Jan. 27, 2021, to move to amend.
A full-text copy of the Court's Jan. 12, 2021 Opinion is available
at https://tinyurl.com/y4avv6wz from Leagle.com.
MDL 2985: Apple Seeks Consolidation of Six Actions to N.D. Cal.
---------------------------------------------------------------
Defendant Apple Inc. in the lawsuit styled IN RE: APPLE INC. GAME
APPS LOSS RECOVERY ACT LITIGATION, MDL No. 2985, asks the United
States Judicial Panel on Multidistrict Litigation to transfer 6
related cases for centralized pretrial proceedings to the U.S.
District Court for the Northern District of California.
Centralization in the Northern District of California -- which is
the litigation's center of gravity -- is particularly appropriate.
The Northern District of California has a strong connection to
these cases because: Apple's headquarters is located there as are
the majority of documents and likely witnesses; and upon download
and use of the apps at issue, plaintiffs agreed to litigate any
claim or dispute with Apple in the State of California. Further,
the judges of the Northern District of California have substantial
experience with multidistrict litigation and with Apple and the
complex technological software and products at issue as well as the
relationships between Apple, its third-party app developers, and
the users of those apps.
Between October 21, 2020 and October 23, 2020, the Plaintiffs filed
six putative class actions against Apple in six different federal
districts. The named Plaintiffs are six individuals who allegedly
used certain mobile apps created by third-party developers that
were made available to consumers through Apple's App Store.
Plaintiffs allege that these games "constitute illegal gambling"
and that Apple unlawfully "promotes, enables, and profits" from
these apps.
The six actions include:
-- Larsen v. Apple, Inc.,
Case No. 2:20-cv-01652 (N.D. Ala. Oct. 21, 2020);
-- Custodero v. Apple, Inc.,
Case No. 5:20-cv-01320 (N.D.N.Y. Oct. 22, 2020);
-- Workman v. Apple, Inc.,
Case No. 3:20-cv-01595 (D. Conn. Oct. 22, 2020);
-- Viglietti v. Apple, Inc.,
Case No. 2:20-cv-02773 (W.D. Tenn. Oct. 22, 2020);
-- Payton v. Apple, Inc.,
Case No. 1:20-cv-04326 (N.D. Ga. Oct. 22, 2020); and
-- McCloskey v. Apple, Inc.,
Case No. 3:20-cv-00434 (S.D. Ohio Oct. 23, 2020).[BN]
The Defendant is represented by:
Raj N. Shah, Esq.
DLA PIPER LLP (US)
444 West Lake Street Suite 900
Chicago, IL 60606
Telephone: (312) 368-8904
Facsimile: (312) 251-5714
E-mail: raj.shah@dlapiper.com
- and -
Keara M. Gordon, Esq.
DLA PIPER LLP (US)
1251 Avenue of the Americas
New York, NY 10020
Telephone: (212) 335-4500
Facsimile: (212) 335-4501
E-mail: keara.gordon@dlapiper.com
John S. Gibson, Esq.
DLA PIPER LLP (US)
2000 Avenue of the Stars 400 North Tower
Los Angeles, CA 90067
Telephone: (310) 595-3039
Facsimile: (310) 595-3339
E-mail: john.gibson@dlapiper.com
- and -
Brooke Kim, Esq.
DLA PIPER LLP (US)
401 B Street, Suite 1700
San Diego, CA 92101
Telephone: (619) 699-3439
Facsimile: (619) 764-6739
E-mail: brooke.kim@dlapiper.com
MIDLAND CREDIT: Collins Seeks to Certify Class of Consumers
------------------------------------------------------------
In the class action lawsuit captioned as COURTNEY COLLINS,
individually, and on behalf all other similarly situated consumers,
v. MIDLAND CREDIT MANAGEMENT, INC., Case No. 2:20-cv-03453-MAK
(E.D. Pa.), the Plaintiff asks the Court to enter an order
certifying the Class defined as follows:
"all consumers with a Pennsylvania address that were sent the
same form letter as Exhibit A from MCM concerning debt
originating with Capital One Bank USA, N.A. used primarily
for personal, household, or family purposes within one year
prior to the filing of the complaint."
This action arises from the Defendant's violation of the Fair Debt
Collection Practices Act (FDCPA) in its attempt to collect a debt
from Plaintiff. The Plaintiff filed an initial Complaint on July
24, 2020 alleging that the defendant violated the provisions of the
FDCPA banning false, deceptive, or misleading collection conduct.
Defendant MCM is a debt collector that regularly collects debts
incurred by Pennsylvania consumers. During the course of its
collection efforts, the Defendant sent a letter to over 100
Pennsylvania consumers with the same creditor as Plaintiff
containing the same allegedly confusing, ambiguous language
concerning "adjustments" of the debt allegedly owed, says the
complaint.
A copy of the Plaintiff's motion to certify class dated Jan. 13,
2020 is available from PacerMonitor.com at https://bit.ly/39KMcU9
at no extra charge.[CC]
The Plaintiff is represented by:
Nicholas Linker, Esq.
ZEMEL LAW LLC
660 Broadway
Paterson, NJ 07514
Telephone: 862-227-3106
E-mail: NL@zemellawllc.com
MIDLAND CREDIT: Pacifico FDCPA Suit Removed to E.D. New York
------------------------------------------------------------
The case captioned as Alex Pacifico, on behalf of himself and all
others similarly situated v. Midland Credit Management, Inc., John
and Jane Does 1-10, Case No. 619392/2020, was removed from the
Supreme Court, County of Suffolk, to the U.S. District Court for
the Eastern District of New York on Jan. 14, 2021.
The District Court Clerk assigned Case No. 2:21-cv-00203 to the
proceeding.
The lawsuit is brought over alleged violation of the Fair Debt
Collection Practices Act.
Midland Credit Management (MCM) -- https://www.midlandcredit.com/
-- is a debt collection agency.[BN]
The Plaintiff appears pro se.
The Defendant is represented by:
Dana Brett Briganti, Esq.
Ellen Beth Silverman, Esq.
HINSHAW & CULBERTSON LLP
800 Third Avenue, 13th Floor
New York, NY 10022
Phone: (212) 471-6200
Fax: (212) 935-1166
Email: dbriganti@hinshawlaw.com
esilverman@hinshawlaw.com
MIDLAND CREDIT: Peters Files FDCPA Suit in M.D. Florida
-------------------------------------------------------
A class action lawsuit has been filed against Midland Credit
Management, Inc., et al. The case is styled as Nikirah Peters,
individually and on behalf of all others similarly situated v.
Midland Credit Management, Inc., Midland Funding, LLC, John Does
1-25, Case No. 6:21-cv-00112-RBD-DCI (M.D. Fla., Jan. 15, 2021).
The lawsuit is brought over alleged violation of the Fair Debt
Collection Practices Act.
Midland Credit Management (MCM) -- https://www.midlandcredit.com/
-- is a debt collection agency.[BN]
The Plaintiff is represented by:
Justin Zeig, Esq.
ZEIG LAW FIRM, LLC
3475 Sheridan Street, Suite 310
Hollywood, FL 33024
Phone: (754) 217-3084
Fax: (754) 217-3084
Email: justin@zeiglawfirm.com
MIDWESTERN AUTO: Binder FLSA Suit Seeks to Certify Employees Class
------------------------------------------------------------------
In the class action lawsuit captioned as Austin Binder, On behalf
of himself and those similarly situated, v. Brentlinger
Enterprises, d/b/a Midwestern Auto Group, Case No.
2:21-cv-00136-MHW-KAJ (S.D. Ohio), the Plaintiff asks the Court
pursuant to Section 16(b) of the Fair Labor Standards Act (FLSA),
to enter an order,
1. conditionally certifying this case as an FLSA collective
action under Section 216(b);
2. implementing an Opt-In period of 90 days whereby Court-
approved Notice of Plaintiff's FLSA claims is sent via
U.S. mail and e-mail to:
"all of Defendant's current and former hourly employees
whose payroll records reflect that they worked 40 or more
hours in any workweek beginning three years preceding the
instant Motion and continuing to the present ("216(b)
Class" or "Potential Opt-In Plaintiffs");
3. approving the content contained in the proposed Notice and
Consent to Join;
4. requiring the Defendant to, within 14 days of this Court's
order, identify all potential opt-in plaintiffs by
providing a list in electronic and importable format, of
the names, addresses, phone numbers, dates of employment,
position(s) held, location(s) of worksite, and e-mail
addresses of all potential opt-in plaintiffs who worked
for the Defendant at any time from the three years
preceding the filing of this Motion through the present;
and
5. directing that Notice, in the form approved by the Court,
be sent to the Potential Opt-In Plaintiffs within 14 days
of receipt of the list using the home and email addresses
provided by the Defendant.
On January 13, 2021, the Plaintiff Binder filed his Collective and
Class Action Complaint against Brentlinger Enterprises In his
Complaint, he seeks all available relief under the FLSA, the Ohio
Wage Act, and the Ohio Prompt Pay Act for Defendant's failure to
pay the Plaintiff and similarly situated individuals for all
overtime wages earned as required by the FLSA. The Plaintiff
contends that the Defendant suffered or permitted him and others
similarly situated to work more than 40 hours in one or more
workweeks, entitling them to overtime compensation under the FLSA,
but failed to pay them for all hours worked and at the correct
overtime rate of pay in at least three main respects.
Brentlinger Enterprises manufactures automobile.
A copy of the Plaintiff's motion to certify class dated Jan. 14,
2020 is available from PacerMonitor.com at https://bit.ly/3c2lvx1
at no extra charge.[CC]
Attorneys for the Plaintiff and those similarly situated, are:
Laren E. Knoll, Esq.
THE KNOLL LAW FIRM, LLC
7240 Muirfield Drive, Suite 120
Dublin, OH 43017
Telephone: (614) 372-8890
Facsimile: (614) 452-4850
E-mail: lknoll@knolllaw.com
- and -
Daniel I. Bryant), Esq.
BRYANT LEGAL, LLC
1550 Old Henderson Road, Suite 126
Columbus, OH 43220
Telephone: (614) 704-0546
Facsimile: 614-573-9826
E-mail: dbryant@bryantlegalllc.com
MONARCH FUNDING LLC: Fabricant Slams Illegal Telemarketing Calls
----------------------------------------------------------------
Terry Fabricant and Keith Hobbs, individually and on behalf of all
others similarly situated, Plaintiff, v. Monarch Funding, LLC and
Does 1 through 10, Defendant, Case No. 20-cv-11771 (C.D. Cal.,
December 30, 2020), seeks injunctive relief, statutory damages,
treble damages and all other relief for violation of the Telephone
Consumer Protection Act.
Monarch Funding, LLC is a business funding company. Fabricant and
Hobbs claim to have received auto-dialed telemarketing calls from
them on their phones. Fabricant is registered in the National
Do-Not-Call registry. [BN]
Plaintiff is represented by:
Todd M. Friedman, Esq.
Adrian R. Bacon, Esq.
LAW OFFICES OF TODD M. FRIEDMAN, P.C.
21550 Oxnard St., Suite 780
Woodland Hills, CA 91367
Phone: (323) 306-4234
Fax: (866) 633-0228
Email: tfriedman@toddflaw.com
abacon@toddflaw.com
NEW JERSEY: Petition for Writ of Habeas Corpus Filed in Goodchild
-----------------------------------------------------------------
A Petition for Writ of Habeas Corpus has been filed in the case
styled as Peter Goodchild, Eliezer Soto-Concepcion, Joan
Abreu-Feliz, Michael Winans, individually and on behalf of all
others similarly situated v. DAVID E. ORTIZ in his capacity as
Warden of the FCI, Fort Dix; MICHAEL CARVAJAL in his capacity as
Medical Director of the Bureau of Prisons; DR. NICOLLETTA
TURNER-FOSTER in her capacity as Medical Director of the FCI, Fort
Dix, Jointly and severally; Case No. 1:21-cv-00790-RMB (S.D.N.Y.,
Jan. 15, 2021).
David E. Ortiz was a Correctional Institution Administrator at the
Bureau of Prisons/Federal Prison System in Fort Dix, New Jersey In
2018.[BN]
The Petitioners appear pro se.
The Respondents are represented by:
John Andrew Ruymann, Esq.
OFFICE OF THE US ATTORNEY
402 East State Street, Suite 430
Trenton, NJ 08608
Phone: (609) 989-2190
Email: john.ruymann@usdoj.gov
NEW YORK: Court Directs Nugent, Others to File IFP and PLRA Forms
-----------------------------------------------------------------
In the lawsuit styled KEVIN NUGENT, JR. v. OFFICER GRAY, # 18367,
and NYC DEPARTMENT OF CORRECTION, Case No. 19-CV-4251 (RRM) (CLP)
(E.D.N.Y.), the U.S. District Court for the Eastern District of New
York grants the Plaintiffs additional time to file their in forma
pauperis applications and Prisoner Litigation Reform Act forms.
The Plaintiff, who is detained on Rikers Island, brings the pro se
civil rights action against a corrections officer and the
Department of New York City Corrections pursuant to 42 U.S.C.
Section 1983. Nugent's June 19, 2019, submission included an
application to proceed in forma pauperis ("IFP"), but it did not
include the Prisoner Authorization form required by the Prisoner
Litigation Reform Act ("PLRA"). On July 25, 2019, the Court sent
Nugent a letter enclosing the PLRA form and directing him to return
the completed form within 14 days from the date of the letter.
On August 26, 2019, the Court received an amended complaint from
Nugent. The amended complaint raises the same allegations, but
names two additional Plaintiffs: Detainees Thris Strobach and
Christopher Cruz. Nugent labeled the amended complaint as a "class
action" and included a new IFP application, purportedly signed by
all three Plaintiffs. However, none of the Plaintiffs submitted the
PLRA form.
Citing Lasher v. Dagostino, No. 16-CV-0198, 2016 WL 1717205
(N.D.N.Y. Apr. 28, 2016), Judge Roslynn R. Mayskopf notes that
where multiple plaintiffs file a joint action, each incarcerated
plaintiff is required to pay the full filing fee. Accordingly, the
Plaintiffs may not proceed on the lawsuit until they have each
submitted their own signed IFP application and their own PLRA
authorization.
The Court reminds the Plaintiffs that a non-attorney appearing pro
se may not represent another pro se litigant, including in a
proposed class action. Accordingly, if they intend to seek class
certification, they must find counsel who can represent the
interests of the entire class.
In light of the Plaintiffs' pro se status and the three-year
statute of limitations applicable to Section 1983 claims in New
York, the Court grants the Plaintiffs additional time to file their
IFP applications and PLRA forms. However, if they fail to comply
with the Order and do not submit the completed and signed forms
within 30 days from the date of the Order, the action will be
dismissed. No extension of time will be granted without good cause
shown.
The Clerk of Court is directed to mail a copy of the Order, along
with IFP and PLRA forms, to Nugent, Strobach, and Cruz,
individually. The action will proceed only as to each Plaintiff,
who returns the completed and signed forms. No summonses will issue
and no response from the Defendants to the action is required at
this time.
A full-text copy of the Court's Memorandum & Order dated Jan. 11,
2021, is available at https://tinyurl.com/y2hxv9ct from
Leagle.com.
NOBLE ENERGY: Galindo Sues Directors for Breach of Fiduciary Duties
-------------------------------------------------------------------
STEPHANIE GALINDO and DAVID WALSH, Individually and For All Others
Similarly Situated v. DAVID L. STOVER, JEFFREY L. BERENSON, JAMES
E. CRADDOCK, BARBARA J. DUGANIER, THOMAS J. EDELMAN, HOLLI C.
LADHANI, SCOTT D. URBAN, WILLIAM T. VAN KLEEF, and MARTHA B.
WYRSCH, Case No. 2021-0031 (Del. Chancery Ct., Jan. 12, 2021) is
brought by the Plaintiffs, individually and on behalf of the former
holders of the common stock of Noble Energy, Inc., against the
members of the Board of Directors of the Company for breaching
their fiduciary duties in connection with the acquisition of the
Company by Chevron Corporation and Chelsea Merger Sub, Inc.
According to the complaint, the Noble Energy Board and its Chief
Executive Officer, Defendant David L. Stover, breached their
fiduciary duties during the sale of Noble Energy to Chevron by
means of an unfair process, for an inadequate price, and without
full disclosure of all information material for stockholders to
cast an informed vote on the Merger.
As a result of the Merger, Noble Energy stockholders received only
0.1191 of a share of Chevron common stock for each share of Noble
Energy common stock that they owned representing approximately
$10.39 in value per share as of the last trading day before the
public announcement of the execution of the Merger Agreement, the
suit says.
Noble Energy, Inc. was a company engaged in hydrocarbon exploration
headquartered in Houston, Texas. In October 2020, the company was
acquired by Chevron Corporation.[BN]
The Plaintiffs are represented by:
Juan E. Monteverde, Esq.
MONTEVERDE & ASSOCIATES PC
The Empire State Building
350 Fifth Avenue, Suite 4405
New York, NY 10118
Telephone: (212) 971-1341
- and -
Blake A. Bennett, Esq.
COOCH AND TAYLOR, P.A.
The Nemours Building
1007 N. Orange St., Suite 1120
Wilmington, DE 19801
Telephone: (302) 984-3800
NUDGE LLC: JLR Suit Stayed Pending Lift of Preliminary Injunction
-----------------------------------------------------------------
In the class action lawsuit captioned as JUST US REALTORS, LLC on
Behalf of Itself and All Others Similarly Situated, v. NUDGE, LLC,
BUYPD, LLC, INCOME PROPERTY USA, LLC, INSIDER'S CASH, LLC, RYAN
POELMAN; GUARDIAN LAW, LLC, AMERICAN LEGAL & ESCROW, LLC, INVICTUS
LAW, LLC, and BLAIR R. JACKSON, Case No. 2:18-cv-00128-HCN-CMR (D.
Utah), the Hon. Judge Cecilia M. Romero entered an order granting
in part and denying in part the Plaintiff's Motion to Vacate Class
Certification Deadline and Modify Stay:
-- The court stays the case in its entirety pending a
lift of the Preliminary Injunction or upon motion by the
parties.
-- All deadlines, including the deadline for class
certification, are also stayed.
-- As a result of the stay, the court will deny as moot
plaintiff's motion for leave to amend.
-- Absent relief from Judge Barlow, when the stay is lifted,
Plaintiff must file a renewed motion for leave to amend.
The Court grants Plaintiff's Motion to Vacate only in the request
for a stay and will stay this matter until the Preliminary
Injunction is lifted and a relief from stay is filed by the
parties. The court declines to set this matter for regular
scheduling conferences. Within 20 days of resolution of the FTC
Matter, the parties are to petition this court for relief from the
stay.
The Plaintiff filed this potential class action against nine
defendants which include several individuals and limited liability
corporations that allegedly sold and financed real estate through
investor training seminars. On December 19, 2019, in a separate
case, Chief Judge Robert J. Shelby issued a Preliminary Injunction
enjoining "other persons seeking to establish or enforce any claim,
right, or interest" from "commencing, prosecuting, or continuing a
judicial, administrative, or other action or proceeding against"
defendants in this case, BuyPD, Nudge, LLC, Ryan Poelman, and their
subsidiaries and affiliates.
A copy of the Court's order dated Jan. 14, 2020 is available from
PacerMonitor.com at https://bit.ly/2M7ySRh at no extra charge.[CC]
NVIDIA CORP: Arbitration & Dismissal Order in LeBoeuf Suit Affirmed
-------------------------------------------------------------------
In the case, MATTHEW LEBOEUF, Plaintiff-Appellant, ROBERT HANEY,
Appellant v. NVIDIA CORPORATION, Defendant-Appellee, Case No.
19-17481 (9th Cir.), the U.S. Court of Appeals for the Ninth
Circuit affirmed the district court's order granting Appellee
NVIDIA's motion to compel arbitration and dismissing the case
without prejudice.
Appellants LeBoeuf and Haney allege they purchased graphics cards
that suffered from performance issues from third-party
manufacturers and retailers. They also downloaded and installed
NVIDIA's software that is necessary to operate the graphics cards.
Before downloading the software, NVIDIA required Appellants to
consent to its License Agreement that contained an arbitration and
class-action waiver provision.
NVIDIA moved to compel arbitration of the Appellants' claims
relating to the graphics cards, and the district court granted that
motion based on the License Agreement. The Appellants argue on
appeal that the district court erred in granting the motion for
several reasons.
First, the Appellants contend the district court erred because
their claims relate to hardware, not software, such that the
parties did not enter into a valid arbitration agreement with
respect to their claims. The Ninth Circuit holds that the argument
fails, however, because the undisputed facts show that the
Appellants entered into a valid arbitration agreement when they
twice assented to NVIDIA's License Agreement. Any dispute as to
the scope of that agreement, and whether the Appellants' claims
fall outside the agreement, must be determined by the arbitrator
under the License Agreement's delegation clause.
Second, the Appellants contend the district court erred by
enforcing the License Agreement's delegation clause and holding
that the arbitrator must determine issues related to arbitrability.
The Ninth Circuit also holds that the argument fails because the
district court properly enforced the License Agreement's
choice-of-law provision that required application of Delaware law
because the Appellants failed to show that Delaware Law conflicts
with a fundamental California public policy and that California has
a materially greater interest than Delaware in evaluating the
delegation clause. In addition, under Delaware law, the broad
arbitration clause and incorporation of the Judicial Mediation and
Arbitration Services Rules clearly and unmistakably evidences the
parties' intention to delegate issues of arbitrability to the
arbitrator.
Finally, the Appellants contend the delegation clause is
procedurally and substantively unconscionable. The argument fails
because the Appellants were given the opportunity to review the
License Agreement at two separate points when they downloaded and
installed the NVIDIA software, the Appellate Court finds.
In addition, the Appellants were not presented with the arbitration
agreement on a "take-it-or-leave-it" basis because NVIDIA provided
them the opportunity to opt out. Despite the opportunity, they
chose to continue using the graphics cards and software without
opting out of the arbitration agreement. The Appellants also fail
to demonstrate that the delegation clause "shocks the conscience"
or is on terms "so extreme as to appear unconscionable according to
the mores and business practices of the time and place." To the
contrary, the Supreme Court requires enforcement of such clauses.
A full-text copy of the Court's Jan. 12, 2021 Memorandum is
available at https://tinyurl.com/y5pzjjex from Leagle.com.
O.J. SMITH FARMS: Combined Class & Collective Certification Granted
-------------------------------------------------------------------
In the class action lawsuit captioned as MARCOS BENITEZ GONZALEZ,
ISAAC GONZALEZ HERNANDEZ, VICTORINO FELIX ANTONIO, JUAN JAVIER
VARELA CUELLAR, RUBEN DOMINGUEZ ANTONIO, RIGOBERTO CARTERAS JARDON,
JORGE BAUTISTA SABINO, EMMANUEL CRUZ RIVERA, CELSO GONZALEZ TREJO,
ERIC JACINTO WENCES VASQUEZ, MARTIN NELSON WENCES VASQUEZ, PORFIRIO
BAUTISTA CRUZ, ALEJANDRO DE LA CRUZ MEDINA, JOSE ESTEBAN HERNANDEZ
CRUZ, SIXTO HERNANDEZ BUENO, VIRGINIO ANGELES GONZALEZ, TIBURCIO
ANTONIO MANUEL, and HUMBERTO ANTONIO HERNANDEZ, on behalf of
themselves and all other similarly situated persons, v. O.J. SMITH
FARMS, INC., BOSEMAN FARMS, INC., GREENLEAF NURSERY CO., SBHLP,
INC., JOEL M. BOSEMAN, JEAN J. BOSEMAN, PEYTON G. MCDANIEL, SANDRA
W. MCDANIEL, and SALVADOR BARAJAS, Case No. 5:20-cv-00086-FL
(E.D.N.C.), the Hon. Judge Louise W. Flanagan entered an order
granting the parties' Joint Motion By Plaintiffs and O.J. Smith
Farms Defendants for Combined Class Certification Under Rule
23(b)(3) and Collective Action Certification Under 29 U.S.C.
section 216(b).
The combined Fair Labor Standards Act (FLSA) Collective Action and
a North Carolina Wage and Hour Act (NCWHA) Rule 23(b)(3) class
referred to as the "FLSA/NCWHA class," is defined as follows:
"all H-2A visa workers who were allegedly jointly employed by
SBHLP, Inc. and/or Salvador Barajas on one hand and by O.J.
Smith Farms, Inc., Peyton G. McDaniel, and/or Sandra W.
McDaniel on the other who were not paid all wages when due on
their first or last regular payday in 2019 because of de
facto wage deductions for travel and other related expenses
that were an incident of and necessary to their employment in
North Carolina with an H-2A visa."
The Plaintiffs filed their Complaint on March 9, 2020 alleging
claims for class relief under two different NCWHA legal theories
and one overlapping FLSA collective action. In the Second Amended
Complaint, the named Plaintiffs allege four separate classes under
the NCWHA against Smith Farms and one overlapping FLSA collective
action.
The Smith Farms Defendants denied the claims against them and
asserted various affirmative defenses. The Plaintiffs and the Smith
Farms Defendants have negotiated a settlement agreement in this
action which includes relief on a class-wide basis for the
Plaintiffs' combined claims under the NCWHA and the FLSA. For
settlement purposes only, the Smith Farms Defendants consent to and
join in the Joint Motion for Class Certification under Rule
23(b)(3) pursuant to the Settlement Agreement reached between the
parties, which is the result of compromise to resolve the disputes
between them and does not constitute an admission of any liability
to any party.
A copy of the Court's order dated Jan. 13, 2020 is available from
PacerMonitor.com at http://bit.ly/3sCna1Oat no extra charge.[CC]
OPA-LOCKA, FL: Court Allows Class-Action Lawsuit On Water Bills
---------------------------------------------------------------
An appeals court has cleared the way for part of a class-action
lawsuit alleging that the financially troubled city of Opa-locka
overbilled customers for water use.
On Wednesday, a three-judge panel of the 3rd District Court of
Appeal upheld a circuit judge's "certification" of a class of
customers who contend they were overbilled.
"The plaintiffs seeking to represent the overbilled class have
demonstrated their standing to maintain class certification by
showing that a case or controversy exists between the plaintiffs
and the city regarding alleged overbilling for water services,"
said the 10-page opinion, written by Judge Eric Hendon. "We
conclude that the plaintiffs have demonstrated sufficient interest
in the outcome of the litigation to proceed."
The panel, however, overturned class certification in another part
of the case alleging that the city improperly used money paid as
deposits for water service.
The opinion said the case involves allegations related to the
Miami-Dade County city's "decade-long policy and practice of
estimating customer water usage and its decision to use customer
water deposits to satisfy budget shortfalls during the city's
ongoing financial crisis." [GN]
PARAMED INC: McKenzie Lake Announces Securities Class Action
------------------------------------------------------------
McKenzie Lake Lawyers LLP would like to inform residents of Ontario
that the class action against Paramed Inc. in respect of allegedly
using improperly sterilized equipment in wound care services, was
certified on September 22, 2020.
The claim alleges the method used to clean and disinfect medical
devices used by Paramed Inc. at its London clinics was grossly
inadequate as the medical devices were not sterilized or high level
disinfected after each use. On August 20, 2018, the
Middlesex-London Health Unit issued an advisory indicating there
was a lapse in infection prevention and control practices at
Paramed Inc.'s London clinics, exposing the class to risks of
contracting Hepatitis B, Hepatitis C, and HIV. The class action
seeks damages for invasion of bodily integrity by reason of blood
testing, severe mental and/or emotional distress, psychological
trauma, and/or nervous shock.
The Court has not taken a position as to the likelihood of recovery
on the part of the plaintiff or class, or as to the merits of the
claims or defences asserted by either side.
All persons who received wound care involving the use of medical
instruments at Paramed Inc.'s Clinics located at 124 Barker Street,
1340 Huron Street, and 148 Fullarton Street, Suite 200 in London,
Ontario between January 1, 2008 and July 27, 2018 and who were
contacted by the Defendant and advised that they may have been
exposed to infection and should be tested for hepatitis B,
hepatitis C, and HIV, or where such person is deceased, the
personal representative of the estate of the deceased person, are
automatically included in the class action lawsuit. If someone who
meets this definition does not want to participate in the class
action lawsuit, they must opt-out. Those who opt out of the class
action may be entitled to pursue a claim in a separate proceeding.
Anyone who wishes to opt-out and not participate in the class
action must send a written, signed election, including their name,
address and telephone number by March 15, 2021 to:
McKenzie Lake Lawyers LLP
c/o Paramed Class Action
140 Fullarton St. Suite 1800
London, ON N6A 5P2 [GN]
PASCHALL TRUCK: Carter Parties to Confer on 2019 Accord Enforcement
-------------------------------------------------------------------
In the case, GALE CARTER and FORBES HAYS, On behalf of themselves
and those similarly situated, Plaintiffs v. PASCHALL TRUCK LINES,
INC., et al., Defendants, Case No. 5:18-cv-00041-BJB-LLK (W.D.
Ky.), Judge Benjamin Beaton of the U.S. District Court for the
Western District of Kentucky, Paducah Division:
(i) reserved ruling on the pending motion to strike the
late-filed consent forms; and
(ii) ordered the parties to confer regarding the proper
application of their 2019 agreement to the 110 late-filed
consents, and file a joint report with the Court within
30 days.
A year ago the parties proposed and the Court accepted an agreed
process for handling truck drivers' late-filed consent forms in the
Fair Labor Standards Act collective action. Both sides now ignore
that process and ask the Court to either accept or reject, en
masse, the opt-in forms of 110 potential Plaintiffs. At least
based on the papers, the parties do so without even attempting to
apply their own agreement to the current situation, leaving the
Court to sift through the record, or the equities, or the caselaw
to reach a decision.
Plaintiffs Carter and Hayes previously drove trucks for Defendant
Paschall, also known as PTL. Co-defendant Element Fleet Management
Corp. and other outfits leased tractor trailers to the Plaintiffs.
But those lease arrangements allegedly required the Plaintiffs to
enter into Independent Contractor Service Agreements with PTL,
restricted the Plaintiffs' ability to drive for companies besides
PTL, allowed PTL to deduct lease payments and costs from the
Plaintiffs' compensation, and restricted the Plaintiffs' ability to
hire others to drive their leased vehicle.
The Plaintiffs assert that these extensive restrictions made PTL
their employer under the FLSA, yet PTL did not pay them in
accordance with the requirements the Act imposes on employers.
They filed a motion for conditional certification of an FLSA
"collective action," which the Court granted in April 2019.
Shortly thereafter, the Court entered an agreed order approving a
process for notifying other potential "similarly situated"
Plaintiffs regarding how to opt into the collective action. That
agreed order established that the opt-in period would be 90 days,
starting from the day the FLSA notice was mailed or emailed,
whichever was earlier.
The parties recognized that some drivers might need additional time
to return the consent form: if the initial notice by mail proved
undeliverable, PTL agreed to provide social security numbers so a
third-party administer could locate an updated address and send a
second notice. Any such "undeliverable opt-in Plaintiff" would
have 45 days from the second mailing or 30 days after the opt-in
period ended (whichever was later) in which to return and file
their consent form with the Court.
The notice period ran from July 12 to Oct. 10, 2019. The
Plaintiffs' counsel filed several batches of consent forms in
September and October, before the period closed. And on October 11
and 14, the Plaintiffs' counsel filed 11 additional consent forms,
apparently without objection to their timeliness. At the
conclusion of the notice period, the Plaintiffs' counsel had filed
with the Court consent forms for approximately 959 Plaintiffs who
opted into the conditionally certified FLSA class.
Roughly two weeks later, in October 2019, the parties asked the
Court to stay the case for mediation, and the Court obliged. After
that mediation failed in August 2020, the Chief Judge reassigned
the case to a new judge in December and the Court lifted the stay
in January.
The Motion concerns the status of would-be Plaintiffs whose consent
forms the counsel filed in August and November 2020, well after the
90-day notice period ended. Before the Court lifted the stay, the
Plaintiffs filed 64 consent forms from drivers seeking to join the
conditional class. PTL moved to strike the consents because the
parties had agreed to cap the class as of October 2019. The
Plaintiffs then filed 46 more consent forms. These, the counsel
asserts, arrived during the opt-in period but weren't filed with
the Court. PTL objected to these consents as well.
Now that the Court has lifted the stay, the question is whether
these additional 110 putative Plaintiffs may join the existing FLSA
collective action--or must instead file their own collective (or
individual) lawsuit.
Judge Beaton notes that agreement was sufficiently sensible and
important that the parties presented it to the then-presiding judge
for entry as a court order. And that agreed order presumptively
dictates the outcome in the case. Judge Beaton emphasizes that the
Court's orders are not suggestions. They are not guidelines. They
are orders that must be followed. The parties cannot disobey court
orders without consequence. Enforcing a plan endorsed by the
Plaintiffs, PTL, and the Court certainly serves the twin goals of
"avoiding a multiplicity of duplicative suits" and "expediting
disposition of the action."
Curiously, the Judge finds that the parties' submissions begin to
parse the putative Plaintiffs, but do so without grappling with the
terms of the agreed order. He hears that some drivers consented
during the optin period, some shortly thereafter, some after
undeliverable mailings attributable to PTL, some through duplicate
consents, and some more than three years after leaving PTL. He
cannot tell, however--because the parties have not told the
Court--which of the 110 new consents complies with the agreed
order, which violate it, and which might merely be excusably late.
The Judge, therefore, ordered the parties to meet and confer--which
they seem to concede has not yet happened--regarding the proper
application of the agreed order to the 110 consents at issue. He
further ordered them to jointly submit a report concerning the
status of each putative Plaintiff within 30 days.
PTL also has invoked the separate-but-related issue of the statute
of limitations, while the Plaintiffs have invoked the fallback
option of a separate-but-associated collective action of new opt-in
Plaintiffs. Plainly, the Judge opines that neither is ripe for a
decision at this time. Equally plain, the viability of such a
parallel class of new Plaintiffs is intertwined with the Court's
disposition of the late-filed consents. And if discussing these
issues now, rather than in a later complaint or summary judgment
motion, would advance "the just, speedy, and inexpensive
determination of the action," the Judge encourages the counsel to
do so.
To be sure, even the most conscientious of counsel might prove
unable to resolve all outstanding issues concerning these disputed
consents. Yet the Judge remains confident that the parties can
make substantial progress in defining the contours of the class and
narrowing their areas of disagreement, just as they succeeded at
the conditional-certification stage. In all events, an agreed
order submitted to and entered by the Court is worth the extra
effort.
A full-text copy of the Court's Jan. 12, 2021 Memorandum Opinion &
Order is available at https://tinyurl.com/yxb4uhdp from
Leagle.com.
PEABODY ENERGY: Labaton Named Lead Counsel in Oklahoma FPRS Suit
----------------------------------------------------------------
In the case, OKLAHOMA FIREFIGHTERS PENSION AND RETIREMENT SYSTEM,
Individually and on Behalf of All Others Similarly Situated,
Plaintiff v. PEABODY ENERGY CORPORATON, GLENN L. KELLOW, and AMY B.
SCHWETZ, Defendants, Case No. 20-cv-8024 (PKC) (S.D.N.Y.), Judge P.
Kevin Castel of the U.S. District Court for the Southern District
of New York appointed Oregon Public Employees Retirement Fund as
the Lead Plaintiff and Labaton Sucharow as the Lead Counsel.
The case is brought as a putative class action asserting claims
under sections 10(b) and 20(a) of the Securities Exchange Act of
1934 and Rule 10b-5 promulgated thereunder. The proposed class
consists of all persons who purchased or otherwise acquired shares
of Peabody during the Class Period. Peabody is alleged to be the
world's largest coal mining company, with 23 coal mines throughout
the United States and Australia. It is a Delaware corporation with
its headquarters in St. Louis, Missouri.
The Complaint alleges that the Defendants materially misrepresented
and omitted large safety issues that threatened Peabody's most
profitable mine ("North Goonyella mine"). Peabody is alleged to
have concealed the safety issues, which eventually led to a fire at
the mine and the Australian government's suspension of mining
activity there. After shutdown, Peabody allegedly materially
misrepresented and omitted the steps that it had taken to reopen
the mine, as well as the timeline of the reopening.
The Complaint alleges that the Defendants' material misstatements
and omissions artificially inflated Peabody's stock price, which
dropped each time investors learned the truth surrounding the
safety issues plaguing the North Goonyella mine.
The complaint asserts securities fraud claims on behalf of a
proposed class of shareholders who purchased Peabody common stock
from April 3, 2017 through Oct. 28, 2019.
Three motions for appointment as the Lead Plaintiff have been
filed. Oregon PERF has filed a motion showing they purchased
and/or sold Peabody stock during the Class Period, sustaining a
loss of $5,446,903. Schultze Asset Management LP has filed a
motion showing it purchased and/or sold Peabody stock during the
Class Period, incurring a loss of $2,238,598.59. Lastly,
SCC/Dunhill Trust has filed a motion showing it purchased and/or
sold Peabody stock during the Class Period, suffering a loss of
$220,000.
On Dec. 4, 2020, SCC withdrew its motion for appointment, citing
the larger financial interests that Oregon PERF and Schultze
claimed to have suffered. In addition, Schultze filed a notice
that it does not oppose the motion of Oregon PERF to be appointed
the Lead Plaintiff, citing the larger financial loss that Oregon
PERF claims to have suffered. Defendant Peabody has taken no
position on the motions.
In light of the substantial financial loss claimed by Oregon PERF,
and because it it is capable of adequately representing the
interests of class members, Judge Castel will appoint Oregon PERF
as the Lead Plaintiff. The Judge finds that Oregon PERF has
submitted evidence to support its assertion that it has suffered
nearly $5.5 million dollars in losses as a result of the
Defendants' alleged fraud. It has submitted a chart of trading
data that indicates each transaction of Peabody stock that it
engaged in, and the net profit or loss from the trade. Oregon
PERF's losses are nearly double that of Schultze and are millions
of dollars more than the losses claimed by SCC or Oklahoma Pension
and Retirement System (who did not file a motion but filed the
Complaint).
In addition, the Judge also finds that Oregon PERF has also made a
provisional showing that it can satisfy the typicality and adequacy
requirements of Rule 23. At this stage, only a preliminary showing
of typicality and adequacy is required. Oregon PERF's claims would
be typical of the class because they assert violations of section
10(b) and Rule 10b-5, and section 20(a) based on the Defendants'
allegedly false and misleading statements. Oregon PERF's motion
for appointment as the Lead Plaintiff is therefore granted.
The Judge also granted Oregon PERF's application to appoint the law
firm of Labaton Sucharow as the Lead Counsel. He finds that
Labaton Sucharow has extensive experience in litigating shareholder
class actions and has been lead counsel in actions that have
settled for hundreds of millions of dollars. It has the necessary
experience to act as lead counsel, and its retention on behalf of
the class in the action is approved.
All other motions for appointment are denied. The Clerk is
directed to terminate the motions (Docs 9, 13, 15).
A full-text copy of the Court's Jan. 12, 2021 Opinion & Order is
available at https://tinyurl.com/y6okug9r from Leagle.com.
PEANUT SHELLERS: Court Certifies Runner Peanuts Antitrust Lawsuit
-----------------------------------------------------------------
Freed Kanner London & Millen LLC and Lockridge Grindal Nauen PLLP
("Class Counsel") announce that the United States District Court
for the Eastern District of Virginia, Norfolk Division ("Court")
has approved the following announcement regarding the certification
of a class action lawsuit and settlements with the Olam and
Birdsong Defendants totaling $57.75 million.
The lawsuit claims that Defendants conspired to suppress
competition and to pay depressed prices for Runner Peanuts
purchased from farmers in the United States, in violation of
federal antitrust laws.
The Court's class certification decision and the settlements affect
those persons or entities in the United States who sold Runner
Peanuts to Golden Peanut Company LLC, Birdsong Corporation, and
Olam Peanut Shelling Company (or their subsidiaries or affiliates)
from January 1, 2014 through December 31, 2019.
A hearing will be held on March 25, 2021, at 10:00 a.m., before the
Honorable Raymond A. Jackson, United States District Judge, at the
Walter E. Hoffman United States Courthouse, 600 Granby Street,
Norfolk, VA 23510, Courtroom 4 (or such other courtroom as may be
assigned for the hearing, or if the Court believes that it is
appropriate, remotely by telephone or other electronic means), for
the purpose of determining whether to approve the proposed
settlement with the Olam and Birdsong Defendants.
A Notice was mailed to potential Class members on or about January
12, 2021. The Notice describes in more detail the litigation and
options available to Class members with respect to the settlements.
The Notice and other important documents related to the settlement
can be accessed at www.PeanutFarmersAntitrustLitigation.com, or by
calling (844) 754-7469 or writing to In re Peanut Farmers Antitrust
Litigation, P.O. Box 58220, Philadelphia, PA 19102. Those who
believe they may be a member of the Class, are urged to obtain a
copy of the Notice.
United States District Court for the Eastern District of Virginia,
Norfolk Division [GN]
PILLPACK LLC: Williams' Bid to Certify Class Deferred to Feb. 5
---------------------------------------------------------------
In the class action lawsuit captioned as AARON WILLIAMS, v.
PILLPACK LLC, Case No. 3:19-cv-05282-TSZ (W.D. Wash.), the Hon.
Judge Thomas S. Zilly entered an order:
1. deferring the Plaintiff's Motion to Certify Class:
-- The parties are directed to each file a supplemental
brief, not to exceed ten (10) pages, on or before
February 5, 2021, addressing (i) whether consent to be
called by third parties unaffiliated with Defendant
PillPack LLC, including consent to be called by third
parties using fictitious company names or "dbas,",
constitutes "prior express written consent" to be
called by Defendant or its agents; and (ii) how this
consent issue affects the Court's analysis of whether
the Plaintiff has satisfied Rule 23's commonality and
predominance requirements
-- The court considers only the "consent defenses that
[defendant] has advanced and for which it has provided
supporting evidence" in determining whether those
defenses "may be sufficiently similar or overlapping to
allow [plaintiff] to satisfy the predominance
requirement").
-- The Plaintiff's Motion to Certify Class is renoted to
February 5, 2021.
2. directing the parties to meet and confer and to file a
Joint Status Report on or before February 5, 2021, (i)
indicating when the case will be ready for trial, and how
long such trial is anticipated to take; (ii) proposing
related pre-trial deadlines; and (iii) indicating whether
the case can be tried remotely via the ZoomGov.com
platform.
-- After reviewing the Joint Status Report, the Court
intends to order a case management scheduling order
pursuant to Federal Rule of Civil Procedure 16(b) as
soon as possible.
3. directing the Clerk to send a copy of this Minute Order to
all counsel of record.
PillPack LLC provides pharmaceutical services. The Company operates
a full-service pharmacy with online prescription management and
delivery services for individually packaged medicines, sorted by
date and time.
A copy of the Court's minute order dated Jan. 14, 2020 is available
from PacerMonitor.com at https://bit.ly/3qpyk8q at no extra
charge.[CC]
PNC BANK: 4th Cir. Appeal Filed in Lyons Consumer Credit Suit
-------------------------------------------------------------
Defendant PNC Bank filed an appeal from a court ruling entered in
the lawsuit entitled WILLIAM T. LYONS JR., Plaintiff v. PNC BANK,
N.A., Defendant, Case No. 1:20-cv-02234-SAG, in the U.S. District
Court for the District of Maryland.
As reported in the Class Action Reporter on Jan. 14, 2021, Judge
Stephanie A. Gallagher of the U.S. District Court for the District
of Maryland granted in part and denied in part the Defendant's
Motion to Compel Arbitration, to Strike Class Action Demand, and to
Stay Litigation.
Plaintiff Lyons filed suit against PNC Bank, N.A., alleging
violations of the Truth in Lending Act and the Real Estate
Settlement Procedures Act. The Plaintiff obtained a Home Equity
Line of Credit ("HELOC") from National City Bank on Feb. 4, 2005.
At the closing, the Plaintiff and National City signed an Equity
Reserve Agreement, which did not contain an arbitration clause or a
class action waiver. The HELOC set a 10-year loan term and allowed
the Plaintiff to take draws up to a maximum amount of $149,650.
The Defendant is seeking an appeal to review the order entered by
Judge Gallagher.
The appellate case is captioned as William Lyons v. PNC Bank, Case
No. 21-1058, in the United States Court of Appeals for the Fourth
Circuit, Jan. 13, 2021.
The briefing schedule in the Appellate Case states that:
-- Opening Brief and Appendix are due on February 22, 2021; and
-- Response Brief is due on March 24, 2021.[BN]
Plaintiff-Appellee WILLIAM T. LYONS, Individually and on Behalf of
Others Similarly Situated, is represented by:
Scott C. Borison, Esq.
BORISON FIRM LLC
1900 South Norfolk Street
San Mateo, CA 94403
Telephone: (301) 620-1016
E-mail: usdc@legglaw.com
- and -
Phillip R. Robinson, Esq.
8737 Colesville Road
Silver Spring, MD 20910-0000
Telephone: (301) 448-1304
E-mail: phillip@marylandconsumer.com
Defendant-Appellant PNC BANK, National Association is represented
by:
Matthew D. Lamb, Esq.
Daniel J. Tobin, Esq.
BALLARD SPAHR, LLP
1909 K Street, NW 20006
Washington, DC 20006-1157
Telephone: (202) 661-2200
E-mail: lambm@ballardspahr.com
tobindj@ballardspahr.com
POLARIS INDUSTRIES: Guzman Suit Seeks to Certify Class & Subclass
-----------------------------------------------------------------
In the class action lawsuit captioned as Paul Guzman and Jeremy
Albright, individually on behalf of themselves and all other
similarly situated, v. POLARIS INDUSTRIES, INC., a Delaware
corporation; POLARIS SALES, INC., a Minnesota corporation; POLARIS
INDUSTRIES, INC., a Minnesota corporation; and DOES 1 through 10,
inclusive, Case No. 8:19-cv-01543-FLA-KES (C.D. Cal.), the
Plaintiffs will move the Court on a date and time of convenience
for The Honorable Court, to enter an order:
1. granting the Plaintiffs' Motion for Class Certification
against the Defendants concerning violations of Cal. Bus.
& Prof. Code sections 17200, and Consumer Legal Remedies
Act;
2. certifying a Class of:
"all California residents, who, between in or about August
8, 2015 and December 31, 2019, purchased one or more
models of Polaris RZR, Ranger, or General UTVs, in
California, which were advertised with a sticker on the
ROPS system as complying with Occupational Safety and
Health Administration (OSHA) requirements as set forth
under 29 C.F.R. section 1928.53, and which were tested
using Gross Vehicle Weight, not Tractor Weight;"
3. certifying a Subclass of:
"all California residents, who, between in or about August
8, 2015 and December 31, 2019, purchased one or more
models of Polaris RZR UTVs, in California, which were
advertised with a sticker on the ROPS system as complying
with OSHA requirements as set forth under 29 C.F.R.
section 1928.53, and which were tested using Gross Vehicle
Weight, not Tractor Weight;"
4. granting injunctive relief;
5. appointing themselves as Class Representative; and
6. appointing their attorneys as Class Counsel.
Polaris is an American manufacturer of motorcycles, snowmobiles,
ATV, and neighborhood electric vehicles. Polaris was founded in
Roseau, Minnesota, where it still has engineering and
manufacturing.
A copy of the Notice of the plaintiffs' motion for class
certification dated Jan. 13, 2020 is available from
PacerMonitor.com at https://bit.ly/2Lz73BP at no extra charge.[CC]
Attorneys for the Plaintiffs and all others similarly situated,
are:
John P. Kristensen, Esq.
KRISTENSEN LLP
12450 Beatrice Street, Suite 200
Los Angeles, CA 90066
Telephone: (310) 507-7924
Facsimile: (310) 507-7906
E-mail: john@kristensenlaw.com
- and -
Todd M. Friedman, Esq.
Adrian R. Bacon, Esq.
LAW OFFICES OF TODD M. FRIEDMAN, P.C.
21550 Oxnard Street, Suite 780
Woodland Hills, CA 91367
Telephone: (877) 619-8966
Facsimile: (866) 633-0028
E-mail: tfriedman@toddflaw.com
abacon@toddflaw.com
- and -
Christopher Wood, Esq.
DREYER BABICH BUCCOLA
WOOD CAMPORA, LLP
20 Bicentennial Circle
Sacramento, CA 95826
Telephone: (916) 379-3500
Facsimile: (916) 379-3599
E-mail: cwood@dbbwc.com
QIWI PLC: Robbins Geller Rudman Reminds of February 9 Deadline
--------------------------------------------------------------
Robbins Geller Rudman & Dowd LLP announces that purchasers of Qiwi
plc (NASDAQ: QIWI) publicly traded securities between March 28,
2019 and December 9, 2020, inclusive (the "Class Period") have
until February 9, 2021 to seek appointment as lead plaintiff in the
Qiwi class action lawsuit, Ochakoff v. Qiwi plc, No. 20-cv-06054
(E.D.N.Y), which is assigned to Judge Rachel P. Kovner. The Qiwi
class action lawsuit charges Qiwi and certain of its executives
with violations of the Securities Exchange Act of 1934.
The Private Securities Litigation Reform Act of 1995 permits any
investor who purchased Qiwi publicly traded securities during the
Class Period to seek appointment as lead plaintiff in the Qiwi
class action lawsuit. A lead plaintiff is generally the movant with
the greatest financial interest in the relief sought by the
putative class who is also typical and adequate of the putative
class. A lead plaintiff acts on behalf of all other class members
in directing the Qiwi class action lawsuit. The lead plaintiff can
select a law firm of its choice to litigate the Qiwi class action
lawsuit. An investor's ability to share in any potential future
recovery of the Qiwi class action lawsuit is not dependent upon
serving as lead plaintiff. If you wish to serve as lead plaintiff
of the Qiwi class action lawsuit or have questions concerning your
rights regarding the Qiwi class action lawsuit, please provide your
information here or contact counsel, Michael Albert of Robbins
Geller, at 800/449-4900 or 619/231-1058 or via e-mail at
malbert@rgrdlaw.com. (Мы говорим по-русски.). Lead
plaintiff motions for the Qiwi class action lawsuit must be filed
with the court no later than February 9, 2021.
Qiwi, together with its subsidiaries, operates electronic online
payment systems primarily in Russia, Kazakhstan, Moldova, Belarus,
Romania, the United Arab Emirates, and internationally.
The Qiwi class action lawsuit alleges that, throughout the Class
Period, defendants made false and/or misleading statements and/or
failed to disclose that: (1) Qiwi's internal controls relating to
reporting and record-keeping were ineffective; (2) consequently,
the Central Bank of Russia would impose a monetary fine upon Qiwi
and impose restrictions upon Qiwi's ability to make payments to
foreign merchants and transfer money to pre-paid cards; and (3) as
a result, defendants' public statements were materially false
and/or misleading at all relevant times.
On December 9, 2020, Qiwi announced that the Central Bank of Russia
had imposed a fine of approximately $150,000 for deficient
record-keeping and reporting and suspended Qiwi from conducting
most types of payments to foreign merchants and money transfers to
pre-paid cards from corporate accounts. On this news, the price of
Qiwi's American Depositary Shares fell more than 20%, damaging
investors.
Robbins Geller Rudman & Dowd LLP is one of the world's leading law
firms representing investors in securities class action litigation.
With 200 lawyers in 9 offices, Robbins Geller has obtained many of
the largest securities class action recoveries in history. For
seven consecutive years, ISS Securities Class Action Services has
ranked the Firm in its annual SCAS Top 50 Report as one of the top
law firms in the world in both amount recovered for shareholders
and total number of class action settlements. Robbins Geller
attorneys have helped shape the securities laws and have recovered
tens of billions of dollars on behalf of aggrieved victims. Beyond
securing financial recoveries for defrauded investors, Robbins
Geller also specializes in implementing corporate governance
reforms, helping to improve the financial markets for investors
worldwide. Robbins Geller attorneys are consistently recognized by
courts, professional organizations, and the media as leading
lawyers in the industry. Please visit http://www.rgrdlaw.comfor
more information. [GN]
RECON OILFIELD: Joint Bid for Collective Conditional Status Filed
-----------------------------------------------------------------
In the class action lawsuit captioned as CORY MCDANIEL, on behalf
of himself and others similarly situated, v. RECON OILFIELD
SERVICES, INC., et al., Case No. 2:20-cv-04497-ALM-CMV (S.D. Ohio),
the Parties ask the Court for an order:
1. conditionally certifying the present Fair Labor Standards
Act (FLSA) collective action and provide notice to the
putative class members;
2. directing the Defendants, within 21 days of the Court's
entry of an Order approving the Parties' Joint Stipulation
and to the extent they have the information in their
possession, to provide the Plaintiff's Counsel a list (in
Microsoft Office Excel format) containing the names and
last known addresses (including zip code), email
addresses, and phone numbers of the following employees in
their possession:
"all current and former hourly, non-exempt Ohio field
employees of Defendants who were paid 40 or more work
hours in any workweek from December 30, 2017 and
continuing through the final disposition of this case
("FLSA Collective" or "FLSA Collective Members");"
3. directing the Plaintiff's counsel will mail to the
Putative Collective Class Members via First Class U.S.
Mail and email within seven days of receiving the
list; and
4. giving the Putative Collective Class Members 60 days from
the date the Notice Packet is mailed to return their
Consent to Join form and join this case.
Recon Oilfield is a full-service pressure testing company.
A copy of the joint motion for conditional certification dated Jan.
13, 2020 is available from PacerMonitor.com at
https://bit.ly/3nSJz7H at no extra charge.[CC]
The Plaintiff is represented by:
Matthew J.P. Coffman, Esq.
Adam C. Gedling, Esq.
Kelsie N. Hendren, Esq. (100041
COFFMAN LEGAL, LLC
1550 Old Henderson Road, Suite 126
Columbus, Oh 43220
Telephone: (614) 949-1181
Facsimile: (614) 386-9964
E-mail: mcoffman@mcoffmanlegal.com
agedling@mcoffmanlegal.com
khendren@mcoffmanlegal.com
The Defendant is represented by:
Michael B. Mattingly, Esq.
Lindsey N. Boyd, Esq.
DINSMORE & SHOHL LLP
255 East Fifth Street, Suite 1900
Cincinnati, OH 45202
Telephone: (513) 977-8200
Facsimile: (513) 977-8141
E-mail: michael.mattingly@dinsmore.com
lindseyN.boyd@dinsmore.com
RICOH USA: Class Cert. Filing Deadline Continued to March 16
------------------------------------------------------------
In the class action lawsuit captioned as MARIO SARABIA, MARTIN
MORENO, on behalf of themselves and for all similarly situated
persons, and the general public, v. RICOH USA, INC., a California
Corporation, and DOES 1-50 ALL INCLUSIVE, Case No. e
8:20-cv-00218-JLS-KES (C.D. Cal.), the Hon. Judge Josephine L.
Staton entered an order continuing the Class Certification
Deadlines for eight weeks, as follows:
1. The deadline for Plaintiffs to file their Motion for Class
Certification shall be continued for eight weeks from
January 19, 2021 to March 16, 2021;
2. The deadline for the Defendants to file their Opposition
to Plaintiffs' Motion shall be continued for eight weeks
from March 16, 2021 to May 11, 2021; and
3. The deadline for the Plaintiffs to file a Reply in support
of the Motion for Class Certification shall be continued
for eight weeks from March 20, 2021 to May 25, 2021.
Ricoh is a Japanese multinational imaging and electronics company.
A copy of the Court's order continuing class certification
deadlines dated Jan. 13, 2020 is available from PacerMonitor.com at
https://bit.ly/2KnLenV at no extra charge.[CC]
RISE DEVELOPMENT: Faces Morales Wage-and-Hour Suit in E.D.N.Y.
--------------------------------------------------------------
ISRAEL MORALES, JUAN MALDONADO, JOSE ELIAS RAMIREZ MELGAR, JOSE
EVELIO MENJIVAR AMAYA, JOSE R. AVILA, SILVIANO ESPIRITU, and JAIME
AMAYA, individually and on behalf of all others similarly situated
v. RISE DEVELOPMENT PARTNERS, LLC, RISE CONCRETE LLC, LBS
MAINTENANCE CORP., and BARRY CALDWELL and JOSE ALVAREZ, as
individuals, Case No. 1:21-cv-00166 (E.D.N.Y., Jan. 12, 2021)
arises from the Defendants' egregious violations of the Fair Labor
Standards Act and the New York Labor Law by failing to pay overtime
compensation and wages for all hours worked, failing to furnish a
written wage notice, and failing to provide wage statements.
The Plaintiffs are former employees of the Defendants who performed
construction and carpentry duties at various job sites throughout
New York City.
The Defendants are construction companies in New York.[BN]
The Plaintiff is represented by:
Roman Avshalumov, Esq.
HELEN F. DALTON & ASSOCIATES, P.C.
80-02 Kew Gardens Road, Suite 601
Kew Gardens, NY 11415
Telephone: (718) 263-9591
RLI INSURANCE: Denied Coverage of Business Interruption Claims
--------------------------------------------------------------
MILA MIAMI, LLC vs. RLI INSURANCE COMPANY, dba MT. HAWLEY INSURANCE
COMPANY and CERTAIN UNDERWRITERS AT LLOYD'S OF LONDON KNOWN AS
RENAISSANCE RE SYNDICATE 1458 LLOYD'S, Case No. 1:20-cv-25339-DPG
(S.D. Fla., Dec. 31, 2020) is brought by the Plaintiff,
individually and on behalf of all others similarly situated,
arising out of the Defendant's denial of coverage for losses caused
by the COVID-19 pandemic.
The complaint asserts that the Plaintiff purchased insurance
coverage from the Defendants, including property coverage, to
protect its business in the event that it suddenly had to suspend
operations for reasons outside of its control, and/or in order to
prevent further property damage.
According to the complaint, the Defendants have denied Plaintiff's
business interruption claims arising from COVID-19, the State
ordered interruption of business, and/or executive orders by civil
authorities that required the suspension of business to prevent
further property damage, and the duty to minimize damage to insured
property imposed on Plaintiff by the commercial property policy. As
a result, the Plaintiff brings this action against Defendants for
failure to honor their obligations under the policy issued to
Plaintiff which provides coverage for losses of the type alleged
herein, the suit says.
The Plaintiff is an upscale restaurant located at 800 Lincoln Road,
Miami Beach, Florida.
RLI Insurance Company is an American property and casualty
insurance company.[BN]
The Plaintiff is represented by:
Kevin P. Crosby, Esq.
Guy Bennett Rubin, Esq.
COVID LAW GROUP
PO Box 395
Stuart, FL 34995
Telephone: (772) 283-2004
Facsimile: (772) 283-2009
E-mail: kcrosby@rubinandrubin.com
grubin@rubinandrubin.com
ROPER ST. FRANCIS: Stanley Sues Over Unpaid Wages, Termination
--------------------------------------------------------------
George Stanley, On Behalf of Himself and Others Similarly Situated
v. Roper St. Francis Mount Pleasant Hospital, Bon Secours-St.
Francis Xavier Hospital, Inc., Roper Hospital Inc., Roper St.
Francis Berkeley Hospital Inc., collectively d/b/a, Roper St.
Francis Health Care and/or alternatively collectively d/b/a, Bon
Secours St. Francis Health Systems, Case No. 2:20-cv-04505-BHH
(D.S.C., Dec. 31, 2020) arises from the Defendants' violations of
the Fair Labor Standards Act and the South Carolina Payment of
Wages Act by failing to pay Plaintiff straight time and overtime
compensation and by terminating him because he verbally complained
to his supervisors and co-workers about the violations.
Mr. Stanley was employed by the Defendants as a respiratory
therapist from approximately August of 2015 until his retaliatory
termination on September 29, 2020.
The Defendants are health care providers organized as non-profit
corporations in South Carolina.[BN]
The Plaintiff is represented by:
Marybeth Mullaney, Esq.
MULLANEY LAW, LLC
652 Rutledge Avenue, Suite A
Charleston, SC 29403
Telephone: (843) 588-5587
E-mail: marybeth@mullaneylaw.net
SARASOTA COUNTY, FL: Bid to Dismiss Grames Class Suit Granted
-------------------------------------------------------------
The U.S. District Court for the Middle District of Florida grants
the Federal Defendants' Motion to Dismiss Plaintiffs' Complaint in
the lawsuit titled WILLIAM GRAMES, BROOKE GRAMES, CRAIG B. DICKIE,
CYNTHIA D. DICKIE, JUDY H. JOHNSON, JAMES KOSTAN, DIANE KOSTAN,
PATRICK J. LOYET and LISA A. LOYET v. SARASOTA COUNTY, FLORIDA, ANN
D. BEGEMAN, PATRICK J. FUCHS, MARTIN J. OBERMAN and SURFACE
TRANSPORTATION BOARD, Case No. 8:20-cv-739-T-36CPT (M.D. Fla.).
In the Motion, Federal Defendants Begeman, Fuchs, Oberman, and the
Board argue that the Plaintiffs' Complaint should be dismissed for
lack of subject matter jurisdiction. They seek dismissal with
prejudice of the claims against them in Counts I and II of the
Plaintiffs' Complaint.
The lawsuit is a rails-to-trails case concerning a 7.68-mile line
of railroad in Sarasota County, Florida, that extended the Legacy
Trail between Sarasota and Venice. The Legacy Trail is a public
recreational trail and a rail-trail corridor easement the federal
government "railbanked" under the National Trails System Act. The
named Plaintiffs are Florida landowners, who seek a declaration of
the respective rights to their property and to enjoin Sarasota
County from removing or demolishing their private property in order
to build the northern extension of the Legacy Trail.
The Plaintiffs allege that in the early 1900s much of the land now
known as Sarasota County was owned by Bertha Palmer and members of
her family, including her son Adrian Honore. In November 1910,
Adrian Honore, the predecessor-in-interest to present-day
landowners, granted Seaboard Air Line Railway a right-of-way
easement across his land allowing Seaboard to build and operate a
railway line from Sarasota to Venice. The easement provided if at
any time the railroad abandoned the land for railroad purposes, the
property would revert to Honore, his heirs or assigns. The
right-of-way easement Honore gave Seaboard ultimately was
transferred to CSX Transportation, which leased the railway line to
Seminole Gulf Railway, L.P.
By 2002, CSXT and Seminole Gulf no longer operated a railroad over
the land, nor had any need for the right-of-way. In March 2019,
Seminole Gulf requested the Board allows it to abandon the
7.68-mile segment of rail line between Sarasota and Venice. After
the railroads told the Board they wanted to abandon the railway
line, Sarasota County asked the Board to invoke section 8(d) of the
Trails Act and authorize Seminole Gulf and CSXT to transfer the
otherwise abandoned right-of-way to Sarasota County so that
Sarasota County could build a public recreational trail across
these owners' land. The Plaintiffs allege that Seminole Gulf and
CSXT had no right to transfer or sell any interest the railroads
had in the land, unless transferring to another railroad.
The owners of the land taken for the northern extension -- which is
the subject of the litigation -- have also instituted litigation in
the Court of Federal Claims, see 4023 Sawyer Road I, LLC v. United
States. Because the Court of Federal Claims has no jurisdiction
over Sarasota County and can only award monetary damages, not
injunctive relief, the Plaintiffs filed the instant action in the
Court.
In apparent reliance on the Board's invoking section 8(d), Sarasota
County sent almost 300 landowners letters claiming their existing
improvements, including pools, septic fields, fences, sheds, and
other structures, encroached upon property claimed by Sarasota
County for purposes of the recreational trail. Sarasota County,
among others, claims that the Board retains jurisdiction over the
rail-trial corridor, but that the Board has authorized Sarasota
County to construct and operate a public recreational trail across
the Plaintiffs' land. Sarasota County adopted a public bond to fund
the cost, but such funds did not include compensating the owners
for their land that was taken for the Legacy Trail. While
compensation for private land takings for the Legacy Trail should
be paid by the federal government, the Plaintiffs allege that
Sarasota County must compensate the landowners for any interest it
takes that is greater than the interest taken by the Board.
Relevant to the instant motion, the Plaintiffs sue the Federal
Defendants in Counts I and II. Count I seeks a judgment declaring
"the rights and other legal relations" of the Sarasota landowner
Plaintiffs and the federal government Surface Transportation Board
regarding these owners' private property, specifying the physical
dimensions of the rail-trail right-of-way easement established
under the federal Trails Act, and specifying Sarasota County's
right to use this land. The Plaintiffs allege that a controversy
has arisen between the Plaintiff landowners and Sarasota County
together with the Federal Defendants as to the rights and status of
the parties.
On May 14, 2019, the Federal Defendants invoked Section 8(d) of the
Trails Act and took property from the Plaintiffs by encumbering
their land with an easement for recreation and railbanking. As a
result, the federal government became obligated to pay the
Plaintiff landowners. The Plaintiffs allege that the Federal
Defendants' invocation of section 8(d) of the Federal Trails Act
granted Sarasota County the right to use the Plaintiffs' land for a
public recreational trail and the responsibility to maintain the
corridor for a possible future railroad line. They claim that
although Sarasota County has the power of eminent domain to take
private property without an owner's consent, Sarasota County is
relying upon whatever authority it received by reason of the
Federal Defendants' invocation of section 8(d) of the federal Trail
Act.
In Count II of the Plaintiffs' Complaint, which consists of only
three paragraphs and does not incorporate any of the background
allegations, the Plaintiffs sue all the Defendants in a claim
brought under the Quiet Title Act. They allege the new rail-trail
easement the federal government imposed across their property
clouds and impairs the landowners' title to their property and
takes property interests from them. The Plaintiffs request the
Court resolves the matter and quiet title to these owners' land and
hold that Sarasota County does not possess the authority to demand
that these owners remove or demolish improvements on their
property. The Federal Defendants move to dismiss with prejudice all
claims against them for lack of subject matter jurisdiction.
In their motion to dismiss, the Federal Defendants argue the Court
lacks subject matter jurisdiction over them because the United
States has not waived its immunity to a declaratory judgment claim.
Rather, the Quiet Title Act, 28 U.S.C. Section 2409a, provides the
exclusive means to dispute real property where the United States is
a defendant.
District Judge Charlene Edwards Honeywell opines that the
Plaintiffs fail to offer any authority to support their contention
that the United States has waived sovereign immunity as to Count I.
Accordingly, the Plaintiffs' claim for declaratory relief in Count
I is due to be dismissed with prejudice as to the Federal
Defendants.
Regarding Count II, the Federal Defendants argue the Plaintiffs
have not adequately pleaded any adverse interest with particularity
as required by the express terms of the Quiet Title Act and,
therefore, have not met their burden to show a waiver of sovereign
immunity.
Judge Honeywell finds that the Plaintiffs' allegations fall short.
As a preliminary matter, Count II consists of only three
paragraphs. The general background allegations were not
incorporated into Count II and, therefore, may not be considered in
response to the motion. For that reason alone, the Motion is due to
be granted.
But even if the Court were to consider the background facts as
alleged by the Plaintiffs, the allegations still fail to identify
with particularity the right, title or real property interest
claimed by the United States. The Court agrees with the Federal
Defendants that the Plaintiffs' claim that their titles are
"clouded" does not satisfy the specific pleadings requirements of
Section 2409a(d) and is too vague to establish a waiver of
sovereign immunity.
Accordingly, Count II is due to be dismissed. However, because
Quiet Title actions may be brought against the United States
pursuant to 28 U.S.C. Section 2409a, the Court will permit the
Plaintiffs the opportunity to amend their complaint to see if they
are able to state such a claim.
The Federal Defendants further urge that the United States is not a
necessary party for the Plaintiffs' Quiet Title Act claim or, at
the least, the Plaintiffs' claim should be dismissed as premature
because the Plaintiffs do not ask the Court to set aside or
suspend, or otherwise challenge, any order of the Board. Thus, the
Federal Defendants claim there is no justiciable controversy
between the Plaintiffs and the United States.
To the extent that the Federal Defendants contend there must be a
challenge to a specific Board order for a Quiet Title action to be
ripe, the Court finds the Defendants' reading of Section 2409a to
be too narrow. Notwithstanding, Section 2409a permits a civil
action to adjudicate a disputed title to real property in which the
United States claims an interest. The Plaintiffs have not
identified the dispute vis-a-vis the United States, nor the
interest claimed by the United States.
Accordingly, the Federal Defendants' Motion to Dismiss Plaintiffs'
Complaint and Memorandum in Support is granted. Count I of the
Plaintiffs' Complaint is dismissed with prejudice as to the Federal
Defendants. Count II of the Plaintiffs' Complaint is dismissed
without prejudice, as to the Federal Defendants. The Plaintiffs are
granted leave to file an Amended Complaint, on or before January
22, 2021.
Failure to file an Amended Complaint by the deadline will result in
dismissal of Count II, as to the Federal Defendants, without
further notice.
A full-text copy of the Court's Order dated Jan. 11, 2021, is
available at https://tinyurl.com/y3faf35h from Leagle.com.
SAUNDRA THURMAN-CUSTIS: LaCaprucia Case Trial Set for Feb. 14
-------------------------------------------------------------
In the class action lawsuit captioned as SUE LaCAPRUCIA, v. SAUNDRA
THURMAN-CUSTIS, et al., Case No. 20-0849-CV-W-BCW (W.D. Mo.), the
Hon. Judge Brian C. Wimes entered an order granting scheduling
order for class certification and trial order as follows:
1. setting for a case trial on February 14, 2022 at 9:00 a.m.
for 3-4 days, at the United States Courthouse in Kansas
City, Missouri;
2. setting a final pretrial teleconference on January 13,
2022 at 9:30 a.m.;
3. directing the Plaintiff to file any motion for class
certification on or before July 1, 2021;
4. directing the parties to amend all pleadings and/or add
parties on or before April 30, 2021;
5. directing the Plaintiff to designate any class
certification-related expert witness on or before April 1,
2021;
6. directing the Defendant to designate any certification-
related expert witness on or before May 3, 2021; and
7. scheduling completion of all pretrial discovery authorized
by the Federal Rules of Civil Procedure and related to
Class Discovery on or before June 8, 2021.
A copy of the Court's order dated Jan. 13, 2020 is available from
PacerMonitor.com at https://bit.ly/3il51B8 at no extra charge.[CC]
SHENANDOAH VALLEY: Summary Judgment in Latino UACs Suit Reversed
----------------------------------------------------------------
In the case, JOHN DOE 4, by and through his next friend, NELSON
LOPEZ, on behalf of himself and all persons similarly situated,
Plaintiff-Appellant v. SHENANDOAH VALLEY JUVENILE CENTER
COMMISSION, Defendant-Appellee. CURRENT AND FORMER STATE ATTORNEYS
GENERAL; ELECTED PROSECUTORS; CORRECTIONS LEADERS, CRIMINAL JUSTICE
LEADERS; DISABILITY RIGHTS LEADERS, Amici Supporting Appellant,
Case No. 19-1910 (4th Cir.), the U.S. Court of Appeals for the
Fourth Circuit reversed the district court's order granting summary
judgment to the Commission.
The Appellants are a class of Latino unaccompanied alien children
("UACs") detained at Shenandoah Valley Juvenile Center ("SVJC") who
challenge the adequacy of their medical care. After fleeing their
native countries due to harrowing traumas, many of these children
struggle with severe mental illnesses, resulting in frequent
self-harm and attempted suicide.
SVJC is a secure juvenile detention facility in Staunton, Virginia.
It is run by the Commission, a governmental entity formed under
Virginia law by the Cities of Harrisonburg, Lexington, Staunton,
and Waynesboro, and the Counties of Rockingham, Augusta, and
Rockbridge. SVJC provides education, housing, and medical care to
unaccompanied immigrant children who, in the discretion of ORR,
require a secure placement due to safety concerns. SVJC also
houses youth from surrounding jurisdictions who have been charged
with a crime but have not yet had their cases adjudicated. The
facility houses approximately 20 to 40 unaccompanied immigrant
children at any given moment.
In October 2017, the Appellants filed a class action complaint on
behalf of unaccompanied immigrant children detained at SVJC, naming
the Commission as the sole Defendant. They sought declaratory and
injunctive relief under 42 U.S.C. Section 1983, alleging that the
Commission engaged in unlawful patterns of conduct through: (1)
excessive use of force, physical restraints, and solitary
confinement; (2) failing to provide a constitutionally adequate
level of care for the Plaintiffs' serious mental health needs; and
(3) discrimination on the basis of race and national origin. The
Appellants allege that the Commission fails to provide a
constitutionally adequate level of mental health care due to its
punitive practices and failure to implement trauma-informed care.
The district court granted the Plaintiffs' consent motion for class
certification. It defined the class as: Latino unaccompanied alien
children ("UACs") who are currently detained or will be detained in
the future at Shenandoah Valley Juvenile Center who either: (i)
have been, are, or will be subject to the disciplinary policies and
practices used by SVJC staff; or (ii) have needed, currently need,
or will in the future need care and treatment for mental health
problems while detained at SVJC.
After certification, named Plaintiff Doe 1--along with substitute
Plaintiffs Does 2 and 3--were transferred or removed from SVJC, and
Doe 4 became the substituted class representative. Following
discovery, the Commission filed a motion for summary judgment and
motions in limine to exclude the Appellants' expert testimony and
testimony about non-class members. At the summary judgment
hearing, the Appellants withdrew their claim of discrimination
based on race and national origin.
The court granted in part and denied in part the Commission's
motion for summary judgment. Treating the Appellants' solitary
confinement allegation as a condition of confinement claim, the
Court denied summary judgment with respect to the Appellants'
claims for excessive force and unconstitutional conditions of
confinement, finding that both claims presented genuine disputes of
material fact. But it granted the Commission summary judgment with
respect to the Appellants' claim that SVJC provided inadequate
mental health care after finding that it provides adequate care by
offering access to counseling and medication.
The court also granted in part and denied in part the Commission's
motions in limine to exclude expert testimony. Among other things,
it excluded Dr. Gregory Lewis' testimony about the mental health
care provided by SVJC, reasoning that his testimony was
"irrelevant" because the court was granting summary judgment to
SVJC with respect to the adequacy of mental health services.
Similarly, the court excluded Dr. Andrea Weisman's opinions about
the mental health care provided, considering it irrelevant because
the court was granting summary judgment and because the court
considered Dr. Weisman's testimony to be about standards that are
inapplicable to the defendant and beyond what is constitutionally
required.
After the court issued summary judgment, the Appellants abandoned
their excessive force and conditions of confinement claims. They
then timely appealed the court's grant of summary judgment with
respect to their claim of inadequate mental health care.
The Appellants urge the Court to apply Youngberg's standard of
professional judgment. In Youngberg v. Romeo, 457 U.S. 307, 320-23
(1982), the Supreme Court considered the Fourteenth Amendment
protections guaranteed to a mentally disabled person involuntarily
committed to a state institution. The plaintiff claimed that the
institution failed to provide safe conditions of confinement,
unduly restricted his physical freedom, and failed to adequately
train him in necessary skills. Youngberg held that liability may
be imposed only when the decision by the professional represents a
substantial departure from accepted professional judgment.
Applying the same analysis, the Fourth Circuit holds that the
Youngberg standard governs the case. Considering whether
trauma-informed care represents a relevant standard of professional
judgment, the Fourth Circuit finds that a trauma-informed system of
care is one that "provides an environment in which youth feel safe,
are assisted in coping when past traumatic experiences are
triggered, and in which exposure to potentially retraumatizing
reminders or events is reduced." The Commission claims that
trauma-informed care represents an aspirational standard, not an
accepted standard of professional judgment.
The Court leaves it to the trial court to determine in the first
instance to what extent, if any, the trauma-informed approach
should be incorporated into the professional judgment standard in
the case. It observes only that trauma-informed care is part of
the landscape of relevant evidence to be considered by the trial
court in making the determination.
The Court then turns to whether summary judgment was appropriate.
Because the Youngberg standard governs the Appellants' claim, it
holds that the district court erred by applying the standard of
deliberate indifference. In doing so, the district court also
excluded evidence relevant under Youngberg, including Dr. Lewis'
opinions concerning trauma-informed care and Dr. Weisman's opinions
which were not presented as part of the record on appeal.
Moreover, the district court misread the record and failed to
construe it in the light most favorable to the nonmoving party, the
Fourth Circuit states. The court justified summary judgment in
part because it did not consider Doe 4 to be at risk of serious
harm. It reasoned that Doe 4 did not need additional psychiatric
care but SVJC's own records contradict it. The district court also
did not construe the record in the light most favorable to the
Appellants when describing the adequacy of existing services at
SVJC. In light of the Youngberg standard, the district court must
consider the evidence and all other evidence relevant to the
professional standards of care necessary to treat the Appellants'
serious mental health needs.
For all of these reasons, the Fourth Circuit concludes that the
district court incorrectly applied a standard of deliberate
indifference when it should have determined whether the Commission
substantially departed from accepted standards of professional
judgment. Accordingly, it reversed the district court's grant of
summary judgment and remanded for further proceedings consistent
with its Opinion so that the court may apply the appropriate
standard and consider all evidence relevant to it.
A full-text copy of the Court's Jan. 12, 2021 Opinion is available
at https://tinyurl.com/yxhfkv5c from Leagle.com.
ARGUED: Theodore A. Howard -- thoward@wileyrein.com -- WILEY REIN,
LLP, in Washington, D.C., for Appellant.
Jason A. Botkins -- jason.botkins@littensipe.com -- LITTEN & SIPE,
LLP, in Harrisonburg, Virginia, for Appellee.
ON BRIEF: Hannah E.M. Lieberman -- Hannah_Lieberman@washlaw.org --
Mirela Missova, WASHINGTON LAWYERS' COMMITTEE FOR CIVIL RIGHTS AND
URBAN AFFAIRS, in Washington, D.C., for Appellant.
Joshua S. Everard -- josh.everard@littensipe.com -- LITTEN & SIPE,
LLP, Harrisonburg, Virginia; Harold E. Johnson --
hjohnson@williamsmullen.com -- Meredith M. Haynes --
mhaynes@williamsmullen.com -- WILLIAMS MULLEN, in Richmond,
Virginia, for Appellee.
Neil R. Ellis -- nellis@sidley.com -- Mark E. Herzog --
MHERZOG@SIDLEY.COM -- David A. Miller -- DMILLER@SIDLEY.COM --
SIDLEY AUSTIN LLP, in Washington, D.C., for Amici Current and
Former State Attorneys General, Elected Prosecutors, Corrections
Leaders, Criminal Justice Leaders, and Disability Rights Leaders.
SIERRA MOUNTAIN: Perez Wins Bid to Remand Suit to State Court
-------------------------------------------------------------
The U.S. District Court for the Eastern District of California
grants the Plaintiff's motion to remand to state court his lawsuit
entitled SIGIFREDO PEREZ JR., an individual, on behalf of himself
and all others similarly situated v. SIERRA MOUNTAIN EXPRESS INC.,
a limited liability company; WILLIAM E. SCANLON, an individual; and
DOES 1 through 10, inclusive, Case No. 2:20-cv-02003-JAM-JDP (E.D.
Cal.).
Defendant Sierra Mountain Express ("SME") is a federally licensed
motor carrier engaged in the business of transporting new
automobiles on behalf of various auto-manufacturers. Defendant
Scanlon is SME's President and CEO. SME uses independent
contractors to transport automobiles throughout California and
interstate. The Plaintiff is one such individual, who transported
automobiles for SME.
On May 21, 2020, the Plaintiff filed a wage and hour class action
complaint against Defendant SME in the Superior Court of the State
of California for the County of Sacramento. The Plaintiff added
Scanlon as a Defendant when he filed an amended complaint.
The Plaintiff brings 11 state law claims against the Defendants
for: (1) failure to pay minimum wages, (2) failure to provide meal
periods, (3) failure to permit paid rest breaks, (4) failure to pay
all wages to piece-rate workers for time spent in rest breaks, (5)
failure to pay wages upon separation of employment, (6) failure to
pay wages within the required time, (7) failure to provide accurate
itemized wage statements, (8) failure to reimburse necessary
business expenses, (9) failure to refrain from unlawful deductions,
(10) violation of California Business and Professions Code Section
17200, et seq., and (11) Enforcement of Labor Code Section 2698, et
seq.
On October 6, 2020, the Defendants filed a Notice of Removal,
invoking the Court's federal question jurisdiction. Although the
Plaintiff has pled only state law claims, the Defendants removed on
the grounds that the Plaintiff's second, third, and fourth causes
of action are preempted by the Motor Carrier Safety Act of 1984
("MCSA"). In response, the Plaintiff filed the motion to remand.
The parties dispute whether federal question jurisdiction exists to
support the removal of this case from state court. The Defendants
acknowledge that the Plaintiff has only pled state-law claims, but
argue the Court nevertheless has federal jurisdiction over the
lawsuit because complete preemption applies. Specifically, they
argue that three of the Plaintiff's state law claims -- the second,
third, and fourth causes of action for failure to provide meal and
rest breaks -- fall squarely within the scope of the Federal Motor
Carrier Safety Administration's ("FMCSA") Hours of Service
Regulations -- regulations that effectuate the MCSA -- and thus are
completely preempted by the MCSA.
The Plaintiff, on the other hand, argues that the preemption at
issue here is merely "ordinary preemption," an anticipated defense
that is insufficient to confer federal question jurisdiction.
The Court agrees with the Plaintiff that only ordinary preemption,
not complete preemption, applies here and that ordinary preemption
does not provide grounds for removal. By contrast, ordinary
preemption will not support removal jurisdiction if a plaintiff
chooses to frame his claim based solely on state law, and
preemption is raised only as a defense by the defendant. In the
case, the Defendants argue that the MCSA is a statute with such
extraordinary preemptive force that the application of complete
preemption doctrine is warranted. However, the Defendants have not
provided the Court with any caselaw, binding or otherwise, in which
another federal court has found the MCSA to have such force.
In sum, none of the Defendants' cases provide the Court with
authority to find the MCSA as having such extraordinary preemptive
power that the application of complete preemption is warranted.
Further, the Plaintiff has brought forth persuasive authority in
support of its position that the MCSA and related FMCSA regulations
do not completely preempt California state labor law claims. In the
absence of any caselaw supporting the Defendants' contention that
the MCSA should be added to the short list of statutes with
extraordinary preemptive force, the Court declines to make such a
finding.
Judge Mendez opines that because the Court finds the MCSA is not a
statute with extraordinary preemptive force, the Defendants'
argument for removal jurisdiction based on complete preemption
fails. Their preemption arguments go to their anticipated defense
against the Plaintiff's three claims for failure to provide meal
and rest breaks.
Because ordinary preemption is not a proper ground for removal and
because the Defendants raise no other grounds for removal
jurisdiction, they have has not met their burden of establishing
federal jurisdiction, Judge Mendez opines. The Plaintiff's second,
third, and fourth claims are the only claims over which the
Defendants argue the Court has original jurisdiction. Given the
Court's finding that it does not have original jurisdiction over
these three claims, it also refuses to exercise supplemental
jurisdiction over the Plaintiff's remaining claims.
For the reasons set forth in the Order, the Court grants the
Plaintiff's Motion to Remand the case to the Superior Court of the
State of California for the County of Sacramento.
A full-text copy of the Court's Order dated Jan. 11, 2021, is
available at https://tinyurl.com/y4xfnjta from Leagle.com.
SM ENERGY: CRC Class Action Settlement Wins Initial Approval
------------------------------------------------------------
In the class action lawsuit captioned as CHIEFTAIN ROYALTY COMPANY,
v. SM ENERGY COMPANY (including predecessors, successors and
affiliates), Case No. 5:18-cv-01225-J (W.D. Okla.), the Hon. Judge
Bernard M. Jones entered an order:
1. granting preliminary approval of class action
settlement;
2. certifying the settlement class defined as follows:
"all non-excluded persons or entities who are or were
royalty owners in Defendant's 126 Coal County Gathering
System wells where Defendant is or was the operator;"
-- The Class Claims relate only to payment for gas and its
constituents (residue gas, natural gas liquids, and
drip gas) produced from the wells for production months
October 1, 2001 through May 31, 2015.
-- The Settlement Class does not include overriding
royalty owners or other owners who derive their
interest through the oil and gas lessee.
-- The persons or entities excluded from the Class are:
(1) agencies, departments, or instrumentalities of the
United States of America or the State of Oklahoma; (2)
Commissioners of the Land Office of the State of
Oklahoma (CLO); (3) publicly traded oil and gas
exploration companies and their affiliates; (4) persons
or entities (and their affiliates) who are the Oklahoma
Corporation Commission (OCC) designated operator of
more than fifty (50) Oklahoma wells in the month when
this Settlement Class definition was originally filed;
(5) persons or entities that the Plaintiff's counsel
may be prohibited from representing under Rule 1.7 of
the Oklahoma Rules of Professional Conduct; and (6)
officers of the court.
3. preliminarily approving the form and content of the
proposed Short Form Notice, Summary Notice, and Long Form
Notice;
4. preliminarily approving the proposed manner of
communicating the Short Form Notice, Summary Notice, and
Long Form Notice to the Settlement Class, as set out
below:
-- No later than February 23, 2021, the Settlement
Administrator will mail (or cause to be mailed) the
Short Form Notice by first class mail to all potential
Settlement Class Members who have been identified after
reasonable efforts to do so.
-- No later than March 5, 2021, or at such time as is
ordered by the Court, the Settlement Administrator also
shall publish (or cause to be published) the Summary
Notice one time in each of the following newspapers:
(a) The Oklahoman, (b) the Tulsa World, (c) The Daily
Ardmoreite, (d) the Fairview Republican, (e) the
McAlester News-Capital, (f) the Holdenville Tribune,
and (g) the Coalgate Record Register.
-- Within 10 days after mailing the first Short Form
Notice and continuing through the Final Fairness
Hearing, the Settlement Administrator will also display
(or cause to be displayed) on an internet website
dedicated to this Settlement the following documents:
(i) the Short Form Notice and Summary Notice, (ii) the
Complaint and Answer, (iii) the Settlement Agreement,
(iv) this Order, (v) the Long Form Notice, and
(vi) other publicly filed documents related to the
Settlement.
-- Upon request from a Settlement Class Member, the
Settlement Administrator will directly mail a copy of
the Long Form Notice to the Settlement Class Member.
-- The Gross Settlement Fund shall bear any
Administration, Notice, and Distribution Costs.
5. setting a Final Fairness Hearing on April 27, 2021 at
10:00 a.m. in the United States District Court for the
Western District of Oklahoma; and
6. directing the Settlement Class Members wishing to exclude
themselves from the Settlement Class pursuant to Federal
Rule of Civil Procedure 23(e)(4) must submit to the
Settlement Administrator a valid and timely Request for
Exclusion.
The Court finds the above-defined Settlement Class satisfies all
prerequisites of Federal Rule of Civil Procedure 23(a) for purposes
of the proposed class settlement.
SM Energy Company is a company engaged in hydrocarbon exploration.
It is organized in Delaware and headquartered in Denver, Colorado.
A copy of the Court's order dated Jan. 13, 2020 is available from
PacerMonitor.com at http://bit.ly/2N5LDweat no extra charge.[CC]
The Plaintiff's Counsel are:
Bradley E. Beckworth, Esq,
Jeffrey J. Angelovich, Esq,
Lisa P. Baldwin, Esq,
Susan Whatley, Esq,
NIX PATTERSON, LLP
3600 North Capital of Texas Highway
Suite 350 Building B
Austin, TX 78746
- and -
Emily Kitch, Esq.
BARNES & LEWIS, LLP
208 N.W. 60th Street
Oklahoma City, OK 73118
The Defendant's Counsel are:
J. Kevin Hayes, Esq.
Pamela S. Anderson, Esq.
HALL, ESTILL, HARDWICK,
GABLE, GOLDEN & NELSON, P.C.
320 South Boston Avenue, Suite 200
Tulsa, OK 74103-3706
SOLARWINDS CORP: Faruqi & Faruqi Reminds of March 5 Deadline
------------------------------------------------------------
If you suffered losses exceeding $50,000 investing in SolarWinds
stock or options between February 24, 2020 and December 15, 2020
and would like to discuss your legal rights, click here:
www.faruqilaw.com/SWI or call Faruqi & Faruqi partner James Wilson
directly at 877-247-4292 or 212-983-9330 (Ext. 1310).
There is no cost or obligation to you.
Faruqi & Faruqi, LLP, a leading minority and certified woman-owned
national securities law firm, is investigating potential claims
against SolarWinds Corporation ("SolarWinds" or the "Company")
(NYSE: SWI) and reminds investors of the March 5, 2021 deadline to
seek the role of lead plaintiff in a federal securities class
action that has been filed against the Company.
As detailed below, the lawsuit focuses on whether the Company and
its executives violated federal securities laws by making false
and/or misleading statements and/or failing to disclose that: (1)
since mid-2020, SolarWinds Orion monitoring products had a
vulnerability that allowed hackers to compromise the server upon
which the products ran; (2) SolarWinds' update server had an easily
accessible password of 'solarwinds123'; (3) consequently,
SolarWinds' customers, including, among others, the Federal
Government, Microsoft, Cisco, and Nvidia, would be vulnerable to
hacks; (4) as a result, the Company would suffer significant
reputational harm; and (5) as a result, Defendants' statements
about SolarWinds's 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.
Specifically, on December 14, 2020, SolarWinds filed a Form 8-K
with the SEC, disclosing that it had been the subject of hack on
its Orion monitoring products.
On this news, the Company's shares fell $3.93 per share, or 17%, to
close at $19.62 per share on December 14, 2020, damaging
investors.
Then, on December 15, 2020, Reuters published an article stating
that, last year, security researcher Vinoth Kumar "alerted the
company that anyone could access SolarWinds' update server by using
the password 'solarwinds123.'" The article also disclosed that,
according to Kyle Hanslovan, the cofounder of Maryland-based
cybersecurity company Huntress, "days after SolarWinds realized
their software had been compromised, the malicious updates were
still available for download."
On this news, the Company's shares fell $1.56 per share or 8% to
close at $18.06 per share on December 15, 2020, damaging
investors.
The court-appointed lead plaintiff is the investor with the largest
financial interest in the relief sought by the class who is
adequate and typical of class members who directs and oversees the
litigation on behalf of the putative class. Any member of the
putative class may move the Court to serve as lead plaintiff
through counsel of their choice, or may choose to do nothing and
remain an absent class member. Your ability to share in any
recovery is not affected by the decision to serve as a lead
plaintiff or not.
Faruqi & Faruqi, LLP also encourages anyone with information
regarding SolarWinds's conduct to contact the firm, including
whistleblowers, former employees, shareholders and others.
Attorney Advertising. The law firm responsible for this
advertisement is Faruqi & Faruqi, LLP (www.faruqilaw.com). Prior
results do not guarantee or predict a similar outcome with respect
to any future matter. We welcome the opportunity to discuss your
particular case. All communications will be treated in a
confidential manner.
To view the source version of this press release, please visit
https://www.newsfilecorp.com/release/72117[GN]
SOUTHSTAR CAPITAL: Adegbola Files Suit for Wrongful Termination
---------------------------------------------------------------
Derasean Adegbola v. SouthStar Capital LLC, and SouthStar Capital
Holdings LLC, Case No. 2:20-cv-04506-BHH (D.S.C., Dec. 31, 2020) is
brought by the Plaintiff, individually and on behalf of all others
similarly situated, arising from the Defendants' engagement in
retaliatory conduct by terminating Plaintiff, even in the face of a
perceived risk to the public's health.
According to the complaint, the Plaintiff was discharged because he
needed to care for his two-year son who had tested positive for
COVID-19. The Plaintiff alleges his termination was retaliatory and
in violation of the Families First Coronavirus Response Act and the
Fair Labor Standards Act.
Mr. Adegbola served as the Defendants' Vice President and Corporate
Counsel from November of 2019 until October 2020.
SouthStar Capital LLC and SouthStar Capital LLC provide custom
financing solutions to businesses headquartered in Mount Pleasant,
South Carolina.[BN]
The Plaintiff is represented by:
Marybeth Mullaney, Esq.
MULLANEY LAW
652 Rutledge Ave, Suite A
Charleston, SC 29403
Telephone: (843) 588-5587
E-mail: marybeth@mullaneylaw.net
SPEEDY CASH: Ct. Enters Scheduling Order Through Class Cert.
------------------------------------------------------------
In the class action lawsuit captioned as CINDY DELISLE and ROBERT
DOUGHERTY, Individually and On Behalf of All Others Similarly
Situated, v. SPEEDY CASH, Case No. 3:18-cv-02042-GPC-RBB (S.D.
Cal.), the Hon. Judge Ruben B. Brooks entered an order that:
1. any motion to join other parties, to amend the pleadings,
or to file additional pleadings shall be filed by March
12, 2021;
2. all fact discovery for Plaintiffs' motion for class
certification shall be completed by all parties by July 2,
2021;
-- "Completed" means that all discovery under 26 Rules 30-
36 of the Federal Rules of Civil Procedure, and
discovery subpoenas under Rule 45, must be initiated a
sufficient period of time in advance of the cut-off
date, so that it may be completed by the cut-off date,
taking into account the times for service, notice
and response as set forth in the Federal Rules of Civil
Procedure.
-- Counsel shall promptly and in good faith meet and
confer with regard to all discovery disputes in
compliance with Local Rule 26.1(a).
-- The Court expects counsel to make every effort to
resolve all disputes without court intervention through
the meet and confer process. If the parties reach an
impasse on any discovery issue, counsel shall file an
appropriate motion within the time limit and procedures
outlined in the undersigned magistrate judge's chambers
rules.
-- A failure to comply in this regard will result in a
waiver of a party's discovery issue. Absent an order of
the court, no stipulation continuing or altering this
requirement will be recognized by the court.
3. All motions for discovery shall be filed no later than 30
days following the date upon which the event giving rise
to the discovery dispute occurred.
-- The 30-day deadline will not be extended without a
prior Court order; counsel cannot unilaterally extend
the deadline. For example, ongoing meet-and-confer
efforts, rolling document productions, or supplemental
discovery responses do not extend the deadline.
-- A failure to comply will bar the party from filing a
corresponding discovery motion. For oral discovery, the
event giving rise to the discovery dispute is the
completion of the transcript of the affected portion of
the deposition.
-- For written discovery, the event giving rise to the
discovery dispute is the service of the response. All
interrogatories, requests for admission, and document
production requests relating to class certification
must be served by May 7, 2021.
A copy of the Court's scheduling order through class certification
dated Jan. 14, 2020 is available from PacerMonitor.com at
https://bit.ly/35U0X5F at no extra charge.[CC]
SPLUNK INC: Portnoy Law Reminds of February 2 Deadline
------------------------------------------------------
The Portnoy Law Firm advises investors that a class action lawsuit
has been filed on behalf of Splunk, Inc. (NASDAQ: SPLK) investors
that acquired shares between October 21, 2020 and December 2, 2020.
Investors have until February 2, 2021 to seek an active role in
this litigation.
Investors are encouraged to contact attorney Lesley F. Portnoy, to
determine eligibility to participate in this action, by phone
310-692-8883 or email, or click https://portnoylaw.com/splunk/ to
join the case.
It is alleged in the complaint that Splunk made misleading and/or
materially false statements and/or failed to disclose that: (1) In
the third fiscal quarter of 2021, Splunk was not closing deals with
its largest customers; and (2) Splunk was not hitting the financial
targets that had been previously announced.
After the market closed on December 2, 2020, Splunk announced its
financial results for the third fiscal quarter of 2021, ended
October 31, 2020. Splunk reported total revenues of $559 million,
which was down 11% year-over-year and missing estimates by nearly
$60 million. On December 2, 2020, Splunk also held an earnings call
with analysts in which Splunk admitted that these results fell
"certainly short of both our expectations and our communication of
those expectations." despite having reiterated its 2021 third
quarter guidance just ten days before the close of the quarter.
This news stunned the market, which led analyst JPMorgan to write
that it was "blindsided by the magnitude of too many large deals
slipping in the final days of October."
The stock price of Splunk plummeted on this news, closing at
$158.03 per share on December 3, 2020, down over 23% from the
December 2, 2020 closing price of $205.91 per share.
A class action lawsuit has already been filed. If you wish to serve
as lead plaintiff, you must move the Court no later than February
2, 2021.
Please visit our website to review more information and submit your
transaction information.
The Portnoy Law Firm represents investors in pursuing claims
arising from corporate wrongdoing. The Firm's founding partner has
recovered over $5.5 billion for aggrieved investors. Attorney
advertising. Prior results do not guarantee similar outcomes.[GN]
SPROUT CHILDREN: Angeles Files ADA Suit in S.D. New York
--------------------------------------------------------
A class action lawsuit has been filed against Sprout Children
Online LLC. The case is styled as Jenisa Angeles, on behalf of
herself and all others similarly situated v. Sprout Children Online
LLC, Case No. 1:21-cv-00378 (S.D.N.Y., Jan. 15, 2021).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Sprout -- https://www.sproutsanfrancisco.com/ -- is an organic
children's boutique that has clothes, toys and gear that have been
hand selected to be free from harmful materials.[BN]
The Plaintiff is represented by:
Mark Rozenberg, Esq.
STEIN SAKS, PLLC
285 Passaic Street
Hackensack, NJ 07601
Phone: (201) 282-6500
Email: mrozenberg@steinsakslegal.com
SRI HARTIMAA: Faces Mohammad Wage-and-Hour Suit in E.D. New York
----------------------------------------------------------------
ULLAH MOHAMMAD, individually and on behalf of all other persons
similarly situated v. SRI HARTIMAA INC. and SHER BHDUR KARKI, Case
No. 1:21-cv-00179 (E.D.N.Y., Jan. 13, 2021) arises from the
Defendants' violations of the Fair Labor Standards Act and the New
York Labor Law by failing to pay minimum and overtime wages,
failing to comply with notice and recordkeeping requirements,
failing to pay spread of hours wages, and failing to reimburse
expenses incurred in the purchase and maintenance of delivery
bicycles.
Plaintiff Mohammad was employed by Sri Hartimaa as a waiter and
delivery person from approximately 2009, until December 2019, at
the Sri Hartimaa restaurant located in Brooklyn, New York.
Sri Hartimaa is a restaurant located at 2032 Bedford Avenue,
Brooklyn, New York. It consists of a restaurant with delivery, take
out, and eat in service.[BN]
The Plaintiff is represented by:
Marc S. Hepworth, Esq.
David A. Roth, Esq.
Rebecca Predovan, Esq.
HEPWORTH, GERSHBAUM & ROTH, PLLC
192 Lexington Avenue, Suite 802
New York, NY 10016
Telephone: (212) 545-1199
Facsimile: (212) 532-3801
E-mail: Mhepworth@hgrlawyers.com
Cgershbaum@hgrlawyers.com
Droth@hgrlawyers.com
rpredovan@hgrlawyers.com
SUSHI OTA: S.D. California Narrows Claims in Cota ADA Class Suit
----------------------------------------------------------------
The U.S. District Court for the Southern District of California
grants the Defendant's motion to dismiss the Plaintiff's state law
claim for lack of subject matter jurisdiction in the lawsuit
captioned as JULISSA COTA, individually and on behalf of herself
and all others similarly situated v. SUSHI OTA INC., a California
corporation; and DOES 1 through 10, inclusive, Case No.
20-cv-01721-H-BLM (S.D. Cal.).
On November 24, 2020, Defendant Sushi filed a motion to dismiss the
state law claim in Plaintiff Cota's complaint pursuant to Rule
12(b)(1) of the Federal Rules of Civil Procedure for lack of
subject matter jurisdiction. On December 14, 2020, the Court took
the matter under submission. On December 28, 2020, the Plaintiff
filed a response in opposition to the Defendant's motion. On
January 4, 2021, the Defendant filed a reply.
The Plaintiff is a visually impaired and legally blind person, who
requires screen reading software to read website content using her
computer. The Defendant is a California corporation that operates a
sushi restaurant in San Diego, California. The Plaintiff alleges
that she has made numerous trips to the Defendant's website and has
"encountered multiple accessibility barriers for blind or visually
impaired people." She alleges that these barriers denied her full
and equal access to the facilities, goods and services offered to
the public and made available to the public on Defendant's
website.
On September 2, 2020, the Plaintiff filed a class action complaint
against the Defendant, alleging claims for: (1) violations of the
American With Disabilities Act; and (2) violations of the Unruh
Civil Rights Act, California Civil Code Section 51, et seq. By the
present motion, the Defendant moves pursuant to Rule 12(b)(1) to
dismiss the Plaintiff's Unruh Act claim for lack of subject matter
jurisdiction.
District Judge Marilyn L. Huff opines that the Plaintiff's Unruh
Act claim substantially predominates over her ADA claim. Both
entitle her to injunctive relief; however, only the Unruh Act
allows her to recover statutory damages. Unlike the ADA, the Unruh
Act permits the recovery of monetary damages, in the form of actual
and treble damages or statutory damages of $4,000 per violation,
Judge Huff says, citing Vogel v. Rite Aid Corp., 992 F.Supp.2d 998,
1011 (C.D. Cal. 2014).
Also, compelling interests in comity and deterring forum shopping
support declining jurisdiction over the Plaintiff's Unruh Act
claim, Judge Huff adds.
In sum, the Court declines to exercise supplemental jurisdiction
over the Plaintiff's Unruh Act claim because it substantially
predominates over her federal claim under the ADA and exceptional
circumstances favor dismissal, including the Court's interests in
comity and discouraging forum-shopping. As such, the Court grants
the Defendant's motion to dismiss the Plaintiff's Unruh Act claim
for lack of subject matter jurisdiction.
The Court declines to exercise supplemental jurisdiction over the
Plaintiff's Unruh Act claim, and it dismisses the claim from the
action without prejudice. The action will proceed on the
Plaintiff's remaining claim for violations of the ADA. The
Defendant must a file an answer to the Plaintiff's complaint within
30 days of the date the Order is filed.
A full-text copy of the Court's Order dated Jan. 11, 2021, is
available at https://tinyurl.com/yyp9khn5 from Leagle.com.
TCF ENERGY: Perrong Files TCPA Suit in N.D. Georgia
---------------------------------------------------
A class action lawsuit has been filed against TCF Energy Solutions,
LLC. The case is styled as Andrew Perrong, individually and on
behalf of a class of all persons and entities similarly situated v.
TCF Energy Solutions, LLC, Case No. 1:21-cv-00246-ELR (N.D. Ga.,
Jan. 14, 2021).
The lawsuit is brought over alleged violation of the Telephone
Consumer Protection Act.
TCF Energy Solutions -- https://thecallfirm.com/ -- provides
strategic business solutions.[BN]
The Plaintiff is represented by:
Anthony Paronich, Esq.
PARONICH LAW, P.C.
350 Lincoln St., Suite 2400
Hingham, MA 02043
Phone: (615) 485-0018
Email: anthony@paronichlaw.com
- and -
Brian K. Murphy, Esq.
MURRAY MURPHY MOUL + BASIL LLP
1114 Dublin Road
Columbus, OH 43215
Phone: (614) 488-0400
Fax: (614) 488-0401
Email: murphy@mmmb.com
- and -
Steven Howard Koval, Esq.
THE KOVAL FIRM, LLC
Building 15, Suite 120
3575 Piedmont Rd.
Atlanta, GA 30305
Phone: (404) 513-6651
Fax: (404) 549-4654
Email: shkoval@aol.com
TESLA INC: Faces Fish Suit Over Defective Vehicle Battery Packs
---------------------------------------------------------------
ROBERT FISH, individually, and on behalf of all others similarly
situated v. TESLA, INC., a Delaware corporation, Case No.
8:21-cv-00060 (C.D. Cal., Jan. 12, 2021) arises from the
Defendant's violations of the Magnuson-Moss Warranty Act and the
Computer Fraud and Abuse Act due to alleged defective battery packs
and deceptive conduct about battery capacity to avoid replacement
under warranty.
According to the complaint, in 2014, Mr. Fish purchased a new 2014
Tesla Model S 85 in Orange County directly from Defendant Tesla. In
August 2020, with less than 60,000 miles on the odometer of the
vehicle, Mr. Fish noticed a significant loss in actual range
traveled from a near fully charged battery. He contacted a Tesla
service technician to inquire about the substantial loss of range
and effective battery capacity of the vehicle's battery pack. The
service technician instructed him to determine battery capacity by
focusing on his vehicle's displayed percent battery state of
charge, instead of range. The technician also denied Mr. Fish's
claim for a warranty replacement of the battery pack, the suit
says.
Allegedly, Tesla has a common practice of denying warranty
replacements for defective battery packs in Class vehicles, or
otherwise substantially limits available battery capacity of Class
vehicles via software updates to hide known safety issues.
Tesla, Inc. is an auto manufacturer of electric vehicles, and it
designs, manufacturers, markets, distributes, and sells exclusively
electric vehicles.[BN]
The Plaintiff is represented by:
John van Loben Sels, Esq.
Jennifer J. Shih, Esq.
Matthew J. C. Lusich, Esq.
FISH IP LAW, LLP
2603 Main Street, Suite 1000
Irvine, CA 92614-4271
Telephone: (949) 943-8300
Facsimile: (949) 943-8358
E-mail: jvanlobensels@fishiplaw.com
jshih@fishiplaw.com
mlusich@fishiplaw.com
TEX CHEVROLET: Harris Files TCPA Suit in Arizona
------------------------------------------------
A class action lawsuit has been filed against Tex Chevrolet
Incorporated. The case is styled as Rhakeem Harris, individually
and on behalf of all others similarly situated v. Tex Chevrolet
Incorporated doing business as: Earnhardt Chevrolet, an Arizona
corporation, Case No. 2:21-cv-00062-SMB (D. Ariz., Jan. 14, 2021).
The lawsuit is brought over alleged violation of the Telephone
Consumer Protection Act for Restrictions of Use of Telephone
Equipment.
Earnhardt Chevrolet in Chandler --
https://www.earnhardtchevroletaz.com/ -- serves the East Valley,
including Phoenix, Mesa, & Tempe, AZ with new and certified used
cars.[BN]
The Plaintiff is represented by:
Scott Edelsberg, Esq.
EDELSBERG LAW, PA
20900 NE 30th Avenue, Suite 417
Aventura, FL 33180
Phone: (305) 975-3320
Email: scott@edelsberglaw.com
TRAVIS CREDIT: Judgment on Pleadings Bid in Stoutt TCPA Suit Denied
-------------------------------------------------------------------
In the case, SHAWNTEL STOUTT, Plaintiff v. TRAVIS CREDIT UNION,
Defendant, Case No. 2:20-cv-01280 WBS AC (E.D. Cal.), Senior
District Judge William B. Shubb of the U.S. District Court for the
Eastern District of California denied the Defendant's Motion for
Judgment on the Pleadings.
In the putative class action, Plaintiff Stoutt claims that
Defendant Travis violated Section 227(b)(1)(A)(iii) of the
Telephone Consumer Protection Act of 1991 ("TCPA"), which prohibits
the use of an automatic telephone dialing system ("ATDS") to call
cell phones. The Plaintiff alleges that the Defendant used an ATDS
to call her cell phone number at least 18 times between Jan. 24,
2019, and Feb. 26, 2020.
The Defendant has filed a motion for judgment on the pleadings,
arguing that the Court lacks subject matter jurisdiction over the
Plaintiff's claim following the Supreme Court's ruling in Barr v.
American Ass'n of Political Consultants, Inc., 140 S.Ct. 2335
(2020) ("AAPC"). It argues that the Court lacks subject matter
jurisdiction over the Plaintiff's claim because it is premised on a
statute that was unconstitutional and ineffective at the time of
the Defendant's alleged phone calls. The Plaintiff responds that
the TCPA was effective, at least as to the Defendant's activities,
during the relevant period.
In AAPC, the Supreme Court addressed the constitutionality of the
TCPA. There, a group of political and nonprofit organizations
sought a declaratory judgment that the government-debt exception
unconstitutionally favored debt-collection speech over political
and other speech in violation of the First Amendment. The case
made its way to the Supreme Court, and in a fractured decision, six
Justices agreed that, in adding the government-debt exception to
the statute in 2015, Congress had impermissibly favored
debt-collection speech over political and other speech in violation
of the First Amendment. Seven Justices agreed that the proper
remedy for the constitutional infirmity was to invalidate and sever
the government debt exception, leaving the rest of the TCPA
intact.
The issue now is whether the Supreme Court's decision in AAPC
forecloses federal courts from asserting subject matter
jurisdiction over alleged violations of the TCPA committed while
the government-debt exception was affixed to the face of the
statute--that is, between November 2015 and July 6, 2020.
Judge Shubb denied the Defendant's Motion for Judgment on the
Pleadings. He holds that contrary to the Defendant's assertions,
judicial severance of a specific statutory provision does not act
as a declaration that the entire statute was void and unenforceable
up until the date of the court's opinion. One of the central
premises underlying the Supreme Court's decision to sever the
government-debt exception was that "the remainder of the law is
capable of functioning independently and thus would be fully
operative as law."
Holding the entire robocall ban to be ineffective as to calls made
between 2015 and 2020 would improperly construe AAPC as having
invalidated the entirety of Section 227(b)(1)(A)(iii), rather than
just the government-debt exception, and thus would undermine the
Court's central purpose in severing the statute. Supreme Court
precedent dictates that, in cases like the instant one, where
Congress added an unconstitutional amendment to a prior law, the
court must treat the original, pre-amendment statute as the valid
expression of legislative intent.
The Judge concludes that the Defendant's view of severability has
no foundation in law. Because the Supreme Court has invalidated
and severed the government-debt exception from the remainder of
Section 227(b)(1)(A)(iii), the exception did not affect the
remainder of the statute and the statute remains enforceable, at
least against non-government debt collectors, as to calls made
between November 2015 and July 6, 2020. The Court may, therefore,
adjudicate the Plaintiff's TCPA claim against the Defendant
concerning the calls alleged in his complaint.
A full-text copy of the Court's Jan. 12, 2021 Order is available at
https://tinyurl.com/y45ewebk from Leagle.com.
TRICIDA INC: Glancy Prongay Reminds Investors of March 8 Deadline
-----------------------------------------------------------------
Glancy Prongay & Murray LLP ("GPM") reminds investors of the
upcoming March 8, 2021 deadline to file a lead plaintiff motion in
the class action filed on behalf of investors who purchased or
otherwise acquired Tricida, Inc. ("Tricida" or the "Company")
(NASDAQ: TCDA) securities between September 4, 2019 and October 28,
2020, inclusive (the "Class Period").
If you suffered a loss on your Tricida 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/tricida-inc/. 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.
Tricida's drug candidate, veverimer, is a polymer designed as a
potential treatment for metabolic acidosis in patients with chronic
kidney disease ("CKD"). The Company has completed a Phase 3,
double-blind, placebo-controlled trial of veverimer in patients
with CKD and metabolic acidosis.
On September 4, 2019, Tricida announced that it had submitted a New
Drug Application ("NDA") to the U.S. Food and Drug Administration
("FDA") under the Accelerated Approval Program for approval of
veverimer for the treatment of metabolic acidosis in patients with
CKD.
On July 15, 2020, Tricida announced that it had received a notice
from the FDA "identif[ying] deficiencies that preclude discussion
of labeling and postmarketing requirements/commitments at this
time." The Company stated that "[t]he notification does not specify
the deficiencies identified by the FDA."
On this news, the Company's stock price fell $10.56, or 40.31%, to
close at $15.64 per share on July 16, 2020, thereby injuring
investors.
Then, on October 29, 2020, following its End-of-Review Type A
meeting with the FDA, Tricida announced that it "now believes the
FDA will also require evidence of veverimer's effect on CKD
progression from a near-term interim analysis of the VALOR-CKD
trial for approval under the Accelerated Approval Program and that
the FDA is unlikely to rely solely on serum bicarbonate data for
determination of efficacy." Tricida also disclosed that it was
"significantly reducing its headcount from 152 to 59 people and
will discuss its commitments with vendors and contract service
providers to potentially provide additional financial
flexibility."
On this news, the Company's stock price fell $3.90, or 47.16%, to
close at $4.37 per share on October 29, 2020, thereby injuring
investors.
The complaint filed 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 that: (1) Tricida's NDA
for veverimer was materially deficient; (2) accordingly, it was
foreseeably likely that the FDA would not accept the NDA for
veverimer; 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.
If you purchased or otherwise acquired Tricida securities during
the Class Period, you may move the Court no later than March 8,
2021 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. [GN]
TRU TOP: Wolchko Files Suit in Arizona Over TCPA Violation
----------------------------------------------------------
A class action lawsuit has been filed against Tru Top Offer LLC, et
al. The case is captioned as George D. Wolchko, individually and on
behalf of those similarly situated v. Tru Top Offer LLC, an Arizona
limited liability company, and Corey Geary, an individual, Case No.
2:20-cv-02506-DLR (D. Ariz., Dec. 31, 2020).
The lawsuit is brought over alleged violation of the Telephone
Consumer Protection Act and is assigned to Judge Douglas L. Rayes.
Tru Top Offer LLC is a real estate investment company located in
Phoenix, Arizona.[BN]
The Plaintiff is represented by:
Jesse Vassallo Lopez, Esq.
Jonathan Adam Dessaules, Esq.
DESSAULES LAW GROUP
5343 N 16th St., Ste. 200
Phoenix, AZ 85016
Telephone: (602) 274-5400
Facsimile: (602) 274-5401
E-mail: jvassallo@dessauleslaw.com
jdessaules@dessauleslaw.com
UNEQUAL TECHNOLOGIES: Paguada Files ADA Suit in S.D. New York
-------------------------------------------------------------
A class action lawsuit has been filed against Unequal Technologies
Company. The case is styled as Josue Paguada, on behalf of himself
and all others similarly situated v. Unequal Technologies Company,
Case No. 1:21-cv-00360 (S.D.N.Y., Jan. 14, 2021).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Unequal Technologies -- https://unequal.com/ -- is a sporting goods
company that reduces impact acceleration which can help reduce the
risk of football, baseball, hockey, lacrosse, soccer and action
sports injuries.[BN]
The Plaintiff is represented by:
Mars Khaimov, Esq.
10826 64th Avenue, Ste. 2nd Floor
Forest Hills, NY 11375
Phone: (917) 915-7415
Email: marskhaimovlaw@gmail.com
UNITED STATES: Brian Broadfield Seeks to Certify Class of Prisoners
-------------------------------------------------------------------
In the class action lawsuit captioned as Brian D. Broadfield v.
Jeffery Rosen Acting Attorney General of the United States of
America, Michael Carvajal Director of the Federal Bureau of
Prisons, Case No. 2:21-cv-00103-TAD-KK (W.D. La.), the Plaintiff
asks the Court to enter an order:
1. determining that this action may be maintaining as a class
action, pursuant to Rule 23(c)(1) of the Federal Rules Of
Civil Procedure, on behalf of the following class:
"all Prisoners detained incarcerated under the custody of
The Attorney General of the United States, Who are
currently Eligible to earn time credits Under 18 U.S.C
section 3632 (d)(4)(A)(i)(ii), and being held In the
Federal Bureau of prisons and addressing the following
issues:
under the Federal register Notice the defendant are
currently seeking to codify a rule that would define
the meaning of one day to mean one eight hour-period,
the rule will make a rule that is outside the meaning
and intent of Congress, and a class of plaintiffs will
suffer irreparable harm;
2. confirming for him to serve as a representative;
3. appointing class counsel to represent the class, who shall
serve as class counsel;
4. authorizing the notice and maintenance of this class
action to be given to members of Rule 23 (c)(2)(A) or Rule
23 (c)(2)(B) of the Federal Rules of Civil Procedure;
-- this notice shall be by means of a weekly newsletter
given to all prisoners within the class, with in the
bureau of prisons, by first class mail.
The class includes an undefined prisoners that are confined within
the Federal Bureau of Prisons and an undermined future number of
prisoners. Therefore, the class members are so numerous that the
joinder of all is impracticable, the Plaintiff contends.
The Federal Bureau of Prisons is a United States federal law
enforcement agency under the Department of Justice responsible for
the care, custody, and control of incarcerated individuals.
The Plaintiff appears pro se.
A copy of the Plaintiff's motion to certify class action dated Jan.
13, 2020 is available from PacerMonitor.com at
http://bit.ly/3ik6uaGat no extra charge.[CC]
UNITED STATES: Ernest Riley Suit Seeks Class Action Certification
-----------------------------------------------------------------
In the class action lawsuit captioned as Ernest Riley v. Attorney
General William Barr, Warden Scott Finley, and unknown defendants
(Employer Federal Bureau of Prisons), Case No. 3:21-cv-00085-RDM-CA
(M.D. Pa.), the Plaintiff asks the Court to enter an order granting
his motion for class action certification.
The Plaintiff claims damages due to legal injury to personal right
to be free from future imminent danger of serious physical injury.
William Pelham Barr is an American attorney who served as the 77th
and 85th United States Attorney General, in the administrations of
Presidents George H. W. Bush and Donald Trump. The Federal Bureau
of Prisons is a United States federal law enforcement agency under
the Department of Justice responsible for the care, custody, and
control of incarcerated individuals. The United States Department
of Justice, also known as the Justice Department, is a federal
executive department of the United States government responsible
for the enforcement of the law and administration of justice in the
United States.
The Plaintiff appears pro se.
A copy of the Plaintiff's motion to certify class dated Jan. 14,
2020 is available from PacerMonitor.com at http://bit.ly/3bQhlYYat
no extra charge.[CC]
UNITED STATES: Morton & Ayala's Bid to Intervene in Scholl Denied
-----------------------------------------------------------------
In the lawsuit styled COLIN SCHOLL, et al. v. STEVEN MNUCHIN, et
al., Case No. 20-cv-05309-PJH (N.D. Cal.), the U.S. District Court
for the Northern District of California denied the motion to
intervene and the motion for civil contempt filed by proposed
Plaintiff-Intervenors Jamal Morton and Araclis Ayala.
On August 1, 2020, Plaintiffs Scholl and Lisa Strawn filed a
complaint in the class action asserting three causes of action: (1)
violation of the Administrative Procedure Act ("APA"), 5 U.S.C.
Section 706(1); (2) violation of the APA, 5 U.S.C. Sections 702,
706(2); and (3) violation of the CARES Act, 26 U.S.C. Section 6824,
and the Little Tucker Act, 28 U.S.C. Section 1346(a)(2).
Defendants Mnuchin, Charles Rettig, the U.S. Department of the
Treasury, the U.S. Internal Revenue Service, and the United States
of America are generally responsible for administering economic
impact payments ("EIP") to eligible individuals pursuant to the
Coronavirus Aid, Relief, and Economic Security Act ("CARES Act").
The Plaintiffs and class members are incarcerated and formerly
incarcerated persons, who did not receive payments but are
otherwise eligible to receive an EIP. They alleged that the
Defendants violated the APA and the CARES Act by instituting a
policy that withheld EIPs to incarcerated individuals based solely
on their incarcerated status. The Plaintiffs filed a motion for
preliminary injunction on August 4, 2020, seeking to enjoin the
Defendants' policy of withholding EIPs to incarcerated
individuals.
On September 24, 2020, the Court granted the Plaintiffs' motion for
preliminary injunction and enjoined the Defendants from
"withholding benefits pursuant to 26 U.S.C. Section 6428 from
plaintiffs or any class member on the sole basis of their
incarcerated status." The Court also provisionally certified a
class of United States citizens and legal permanent residents who
are or were incarcerated.
The Plaintiff-Intervenors are incarcerated individuals in the U.S.
Virgin Islands and Puerto Rico and seek to intervene in the suit
pursuant to Rule 24 of the Federal Rules of Civil Procedure. The
broad thesis of their claim is that, similar to the Plaintiffs and
class members in the case, they are eligible to receive EIPs, but
the federal government is denying them payments on the basis of
their incarcerated status. The Plaintiff-Intervenors maintain that
the Plaintiffs are not adequately representing their interests
given the unique statutory arrangements governing the U.S.
territories and possessions.
Because they are residents of the U.S. territories and possessions,
resolution of the Plaintiff-Intervenors' claims would require a
broader examination of the CARES Act than previously addressed in
the case, District Judge Phyllis J. Hamilton states.
The Plaintiff-Intervenors allege that the U.S. Virgin Islands'
Bureau of Internal Revenue ("BIR") entered into a plan with the
U.S. Treasury Department for the distribution of CARES Act funds
pursuant to Section 2201(c). As part of litigation in the district
court for the District of the Virgin Islands, the director of the
BIR disclosed that the agency merely serves as an intermediary
between eligible Virgin Islands taxpayers on the one hand, and U.S.
Treasury on the other. Further, the U.S. Virgin Islands took no
position on the eligibility of incarcerated persons to receive EIPs
and stated that any restrictions on EIPs resulted from terms
imposed by the Treasury Department's plan. The director averred
that one of the restrictions in Treasury's plan was that no monies
could be used to pay EIPs to incarcerated persons. Finally, the
director stated that the BIR remitted EIPs solely in conformance
with the limitations placed on the funds provided by the United
States Treasury Department."
If permitted to intervene, the Plaintiff-Intervenors seek to
certify a subclass of incarcerated residents of the U.S.
territories and possessions, who would otherwise be eligible for an
EIP but did not receive a payment. Both the Plaintiffs and the
Defendants have filed oppositions to the Plaintiff-Intervenors'
motion.
Judge Hamilton holds that the Plaintiff-Intervenors Motion is
untimely and that the original parties would be prejudiced by the
intervention. The Plaintiff-Intervenors assert that the reason for
their delay in moving for intervention is due to the fact that the
Treasury's plan was only recently disclosed in litigation before
the district court for the U.S. Virgin Islands.
As a general matter, Judge Hamilton states, the change of
circumstances illustrated by the revelation of the Treasury
Department's involvement in the plan implementing the CARES Act in
the U.S. territories and possessions is a plausible reason for
delay. Yet, that reasonable delay does not cure the fact that the
interest implicated by the reasonable delay -- the application of
section 2201(c) of the CARES Act to the territories and possessions
-- is not at stake in this litigation.
Assuming that they have legally protectable interests, the
Plaintiff-Intervenors' argument fails the relationship prong, Judge
Hamilton notes. If it is the case, as the Plaintiff-Intervenors
contend, that the Plaintiffs' claims affected them, then their
interest would be satisfied because the Court has already entered a
permanent injunction prohibiting the Defendants from withholding
benefits pursuant to 26 U.S.C. Section 6428 from plaintiffs or any
class member on the sole basis of their incarcerated status and has
declared the Defendants' policy of excluding payments to
incarcerated individuals solely on their status to be void.
Instead, the distinguishing fact between the Plaintiffs' claims and
the Plaintiff-Intervenors' interest are the plans agreed to by the
Treasury Department and the respective U.S. territories and
possessions. That issue was not litigated in the case and has no
relationship to the Plaintiffs' claims, Judge Hamilton explains.
In sum, there are any number of reasons to deny the
Plaintiff-Intervenors' motion for permissive intervention and the
Court has discretion to deny permissive intervention even if the
Plaintiff-Intervenors met the threshold requirements under Donnelly
v. Glickman, 159 F.3d 405, 412 (9th Cir. 1998). Judge Hamilton
opines that they have not even met the threshold requirements and
the Motion must be denied.
For these reasons, the Court denies the Plaintiff-Intervenors'
motion to intervene and denies as moot their motion for civil
contempt.
A full-text copy of the Court's Order dated Jan. 11, 2021, is
available at https://tinyurl.com/y5ccv5bo from Leagle.com.
UNITED STATES: Vangala Class Cert. Proceedings Stayed Until Feb. 15
-------------------------------------------------------------------
In the class action lawsuit captioned as AKHILESH VANGALA, et al.,
v. UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES, et al., Case
No. 4:20-cv-08143-HSG (N.D. Cal.), the Hon. Judge Haywood S.
Gilliam, Jr. entered an order:
1. staying the class certification proceedings in this case
until February 15, 2021; and
2. directing the parties to provide a joint status report by
February 15, 2021.
The Court said, "The parties stipulate and request that the
proceedings in this case be stayed until February 15, 2021, at
which time the parties will file a joint status report with the
Court. At that time, the parties may request a further continuance
of the stay of proceedings, court approval of a proposed settlement
agreement and dismissal of the litigation if appropriate, or
placement of the case back on the Court's active docket. A stay of
proceedings in this case will benefit the parties and conserve the
Court's resources while the parties pursue a potential
settlement."
The Plaintiffs filed this action under the Administrative Procedure
Act, challenging United States Citizenship and Immigration
Services' (USCIS) implementation of a "blank space" rejection
criteria for certain immigration benefits forms. On December 3,
2020, the Court granted the parties' stipulated briefing schedule
for Plaintiffs' Motion for Class Certification. Shortly after this
action was filed, however, the parties entered into settlement
discussions. In light of the parties' pursuit of a potential
settlement in lieu of litigation, the parties conferred and agree
that judicial economy would best be served by staying the
litigation deadlines in this case for a limited time.
A copy of the Court's order dated Jan. 14, 2020 is available from
PacerMonitor.com at https://bit.ly/3oXsqev at no extra charge.[CC]
Attorney for the Plaintiffs, are:
Matt Adams, Esq.
NORTHWEST IMMIGRANT RIGHTS PROJECT
1119 Pacific Ave No. 1400
Tacoma, WA 98402
Telephone: (253) 383-0519
The Defendants are represented by:
David L. Anderson, Esq.
Elizabeth D. Kurlan, Esq.
UNITED STATES ATTORNEYS
UNIVERSITY OF PENNSYLVANIA: Suit Seeks to Certify Settlement Class
------------------------------------------------------------------
In the class action lawsuit captioned as JENNIFER SWEDA, ET AL., v.
THE UNIVERSITY OF PENNSYLVANIA, ET AL., Case No. 2:16-cv-04329-GEKP
(E.D. Pa.), the Plaintiffs ask the Court to enter an order:
1. certifying the Settlement Class defined as:
"All persons who participated in the Plans at any time
during the Class Period, including any Beneficiary of a
deceased person who participated in one or more of the
Plans at any time during the Class Period, and any
Alternate Payee of a person subject to a Qualified
Domestic Relations Order who participated in one or
more of the Plans at any time during the Class Period."
-- Excluded from the Settlement Class are each of the
individual members of the Investment Committee during
the Class Period.
-- The Class Period is from August 10, 2010 through
January 14, 2021.
2. appointing the Plaintiffs Jennifer Sweda, Benjamin A.
Wiggins, Robert L. Young, Faith Pickering, Pushkar
Sohoni, and Rebecca N. Toner as class representatives; and
3. appointing their counsel also as class counsel.
On August 10, 2016, the Plaintiffs Jennifer Sweda, Benjamin A.
Wiggins, Robert L. Young, Faith Pickering, Pushkar Sohoni, and
Rebecca N. Toner, individually and as representatives of a class of
participants and beneficiaries of the University of Pennsylvania
Matching Plan, filed their complaint. On November 21, 2016, the
Plaintiffs amended their complaint, adding the Investment Committee
as a Defendant. Finally, on October 18, 2019, the Plaintiffs
amended their complaint again to add two additional Plans—The
University of Pennsylvania Supplemental Retirement Annuity Plan and
The University of Pennsylvania Basic Plan.
The Plaintiffs brought this action under 29 U.S.C. section
1132(a)(2) alleging that the Defendants breached their fiduciary
duties under the Employee Retirement Income Security Act of 1974 by
causing the Plan to pay unreasonable recordkeeping and
administrative fees and maintaining high-cost and underperforming
investment options. The Plaintiffs seek to recover all losses to
the Plans resulting from each breach of duty under 29 U.S.C.
section 1109(a) and for other equitable and remedial relief.
The University of Pennsylvania is a private Ivy League research
university in Philadelphia, Pennsylvania.
A copy of the plaintiffs' unopposed motion for certification of
settlement class dated Jan. 14, 2020 is available from
PacerMonitor.com at https://bit.ly/3qurgr2 at no extra charge.[CC]
Local Counsel for the Plaintiffs, are:
Heather Lea, Esq.
Jerome J. Schlichter, Esq.
SCHLICHTER BOGARD & DENTON, LLP
Troy A. Doles, MO No. 47958*
Heather Lea, MO No. 49872*
100 South Fourth Street, Ste. 1200
St. Louis, MO 63102
Telephone: (314) 621-6115
Facsimile: (314) 621-5934
- and -
David M. Promisloff, Esq.
PROMISLOFF LAW, P.C.
5 Great Valley Parkway, Suite 210
Malvern, PA 19355
Telephone: (215) 259-5156
Facsimile: (215) 600-2642
E-mail: david@prolawpa.com
The Defendants are represented by:
Christopher Boran, Esq.
MORGAN, LEWIS & BOCKIUS LLP
77 W. Wacker Dr.
Chicago, IL 60601-5094
Telephone: (312) 324-1000
Facsimile: (312) 324-1001
E-mail: cboran@morganlewis.com
UPS SUPPLY: Ayala & Aviles Seek to Certify Class of Employees
-------------------------------------------------------------
In the class action lawsuit captioned as ERIC AYALA and ADRIAN
AVILES, on behalf of themselves and all others similarly situated,
and as "aggrieved employees" on behalf of other "aggrieved
employees" under the Labor Code Private Attorneys General Act of
2004, v. UPS SUPPLY CHAIN SOLUTIONS, INC. a Delaware corporation;
and DOES 1 through 10, inclusive, Case No. 5:20-cv-00117-PSG-AFM
(C.D. Cal.), the Plaintiffs will move the Court on May 3, 2021 to
enter an order:
1. determining that a class action is proper as to all Causes
of Action contained in the Consolidated Complaint pursuant
to Federal Rule of Civil Procedure 23, on the grounds that
(1) the Class is so numerous that joinder of all members
is impracticable, (2) there are questions of law and fact
common to the Class, (3) the class representatives' claims
are typical of the claims of the Class, and (4) the class
representatives and their counsel will fairly and
adequately protect the interests of the Class;
2. determining that class treatment is appropriate under
Federal Rule of Civil Procedure 23(b)(3);
3. certifying the following Class:
"all persons Defendant employed in California and paid on
an hourly basis, including but not limited to equipment
operators, warehouse workers, shift leads, and persons in
comparable positions, at any time between December 12,
2015 and date that final judgment is entered in this
action, including employees at the Defendant's each
warehouse facilities, as follows:
(a) "UPS -- Mira Loma 1," 11991 Landon Drive, Mira Loma
CA, 91752;
(b) "UPS -- Mira Loma 2," 11811 Landon Drive, Mira Loma
CA, 91752;
(c) "UPS -- Fontana DC," 14650 Meyer Canyon Dr., Fontana,
CA 92336;
(d) "UPS -- Jurupa I," 16270 Jurupa Ave Suite 200, Fontana
CA 92337;
(e) "UPS SCS -- Tracy," 1160 Arbor Avenue, Suite C, Tracy,
CA 95304;
(f) "UPS -- Bloomington," 10760 Tamarind Ave, Bloomington,
CA 92316;
(g) "UPS SCS -- Tracy," 5849 W. Schulte Road Suite
107/108, Tracy, CA 95377; and
(h) "UPS SCS – Citrus" 11281 Citrus Ave., 2 Fontana, CA
92337;
4. finding that Plaintiffs Eric Ayala and Adrian Aviles to be
adequate representatives and certifying them as the class
representatives; and
5. finding that Plaintiffs Eric Ayala's and Adrien Aviles'
counsel and their law firms, namely David Spivak of The
Spivak Law Firm and Aparajit Bhowmik and Piya Mukherjee of
Blumenthal Nordrehaug Bhowmik De Blouw LLP, respectively,
as adequate class counsel and certifying them as class
counsel.
UPS Supply offers a comprehensive portfolio of services to enhance
customers' business performance, including logistics and
distribution, transportation and freight, consulting, customs
brokerage, and international trade services.
A copy of the Plaintiffs' motion to certify class dated Jan. 14,
2020 is available from PacerMonitor.com at https://bit.ly/2M3RHos
at no extra charge.[CC]
The Attorneys for the Plaintiff Eric Ayala, and all others
similarly situated, are:
David G. Spivak, Esq.
Carl J. Kaplan, Esq.
THE SPIVAK LAW FIRM
16530 Ventura Blvd., Ste 203
Encino, CA 91436
Telephone (818) 582-3086
Facsimile (818) 582-2561
E-mail: david@spivaklaw.com
carl@spivaklaw.com
The Attorneys for the Plaintiff Adrian Aviles, are:
Norman B. Blumenthal, Esq.
Kyle R. Nordrehaug, Esq.
Aparajit Bhowmik, Esq.
Piya Mukherjee, Esq.
Victoria B. Rivapalacio, Esq.
BLUMENTHAL NORDREHAUG BHOWMIK DE BLOUW LLP
2255 Calle Clara
La Jolla, CA 92037
Telephone: (858) 551-1223
Facsimile: (858) 551-1232
US FOODS: Morris, et al., Directed to File Class Cert. by Jan. 22
-----------------------------------------------------------------
In the class action lawsuit captioned as BETTY MORRIS, et al., v.
US FOODS, INC., Case No. 8:20-cv-00105-SDM-CPT (M.D. Fla.), the
Hon. Judge Steven D. Merryday entered an order directing the
plaintiffs to move for class certification and for preliminary
approval of the settlement no later than January 22, 2021 in accord
with the magistrate judge's instruction.
An August 28, 2020 order referred the motion to the magistrate
judge for a report and recommendation, and the magistrate judge in
an endorsed order denied the motion without prejudice. The endorsed
order explains that "[i]f the parties elect to file a similar
motion in the future, they shall address -- with supporting
authority -- all issues pertinent to such a request for relief,
including those discussed in the Eleventh Circuit's decision in
Johnson v. NPAS Sols., LLC, 975 F.3d 1244 (11th Cir. 2020)."
After the parties announced a settlement of this action, a July 2,
2020 order extends the time within which to move both for class
certification and for preliminary approval of the settlement. The
plaintiffs moved unopposed for an order that (1) preliminarily
approves the class action settlement, (2) preliminarily certifies
the class, (3) approves the manner of notifying the class, and (4)
schedules a fairness hearing.
US Foods is an American foodservice distributor.
A copy of the Court's order dated Jan. 13, 2020 is available from
PacerMonitor.com at https://bit.ly/2XQZrNq at no extra charge.[CC]
USANA HEALTH: Lacasse's Motion to Remand to State Court Granted
---------------------------------------------------------------
The U.S. District Court for the Eastern District of California
grants the Plaintiff's motion to remand to state court the lawsuit
entitled Megan Lacasse, individually, and on behalf of other
members of the general public similarly situated v. USANA Health
Sciences, Inc., et al., Case No. 2:20-cv-01186-KJM-AC (E.D. Cal.).
Plaintiff Lacasse moves to remand the case to the Superior Court of
the State of California for the County of Sacramento. She argues
the Defendant USANA has not shown that more than $5 million is in
controversy, so the Court lacks jurisdiction over the case under
the Class Action Fairness Act. USANA has moved to dismiss. Both
motions were submitted without a hearing. Because USANA has not
carried its burden to establish the Court's jurisdiction, the
motion to remand is granted, and the motion to dismiss is denied as
moot.
Ms. Lacasse alleges USANA hired her as an "Associate" about five
years ago. She stopped working for USANA about two years later.
According to her complaint, USANA classified Lacasse as an
independent contractor when it should have treated her as its
employee. As a result, she claims, she was deprived of minimum
wages, overtime pay, reimbursements for business expenses, and meal
and rest breaks.
The complaint does not say how often Lacasse (or any other
associates) worked overtime, how much less than the minimum wage
she earned, how often USANA deprived her of rest or meal breaks, or
the amount of her unreimbursed businesses expenses, but she alleges
her individual claims are less than $75,000. She asserts a single
claim under California's Unfair Competition Law and seeks to
represent a class of "all current and former California-based
independent contractors" with the same job title who worked for
USANA within the last four years.
Ms. Lacasse filed her complaint in Sacramento County Superior
Court. USANA removed the case to the Court under the Class Action
Fairness Act. It submitted a declaration by Dan Whitney with its
notice of removal. Whitney is USANA's Vice President of Ethics and
Market Expansion. He says USANA had about 4,400 associates in
California in March 2020 and is a Utah Corporation. The
amount-in-controversy requirement is, therefore, the only contested
condition of the Court's jurisdiction under the CAFA.
USANA argued in the alternative that more than $5 million would be
in controversy if it assumed it had paid 4,400 associates $1 less
than the minimum wage and they all worked forty hours per week,
fifty weeks per year, in each of the previous four years. It also
proposes many alternative assumptions, all of which, it contends,
would lead to the same result.
Ms. Lacasse moves to remand the case to state court. She argues
USANA's assumptions are unreasonable and baseless. USANA also moved
to dismiss for improper venue or to transfer the case to the
District of Utah.
Chief District Judge Kimberly J. Mueller holds that when a
complaint does not allege an amount in damages, a defendant who
removes the complaint to federal court under the CAFA "need only
allege in its notice of removal" that more than $5 million is in
controversy, citing Harris v. KM Indus., Inc., 980 F.3d 694, 699
(9th Cir. 2020).
Like the plaintiff in Harris, Lacasse makes a factual attack by
contesting the reasonableness of the assumptions underlying USANA's
conclusion that more than $5 million is in controversy, Judge
Mueller states. Like the defendant in Harris, USANA has not cited
evidence to support its assumptions. And as in Harris, its
assumptions are unreasonable without that evidence. USANA does not
explain why it is reasonable to assume that it had the same number
of associates for all of the last four years; that every associate
regularly worked one or two or any number of hours of overtime per
week; that every associate qualified for and was consistently
deprived of meal and rest breaks every week, fifty weeks per year
for four years; and that associates were consistently paid a
specific amount less than the minimum wage. These assumptions, in
defense against a factual attack, do not establish the Court's
jurisdiction, the Judge concludes.
The many alternative calculations USANA proposes in its opposition
do not take the place of evidence, Judge Mueller holds. They are
also only allegations. These alternative calculations also
demonstrate how arbitrary USANA's assumptions are: they show how
simple it is to manipulate the assumptions to produce totals larger
or smaller than the $5 million threshold.
Like the defendant in Harris, USANA had every opportunity to offer
evidence in response to Lacasse's objections. It did not. The
motion to remand is, thus, granted and the motion to dismiss is
denied as moot. The parties' recent joint request to reschedule the
status conference is also denied as moot. The action is remanded to
the Sacramento County Superior Court.
A full-text copy of the Court's Order dated Jan. 11, 2021, is
available at https://tinyurl.com/y4sohzw9 from Leagle.com.
V & O MONTALVAN: Faces Giron Wage-and-Hour Suit in E.D.N.Y.
-----------------------------------------------------------
TRANSITO GIRON, individually and on behalf of all others similarly
situated v. V & O MONTALVAN FENCE CORP., and OSCAR MONTALVAN, as an
individual, Case No. 2:20-cv-06379 (E.D.N.Y., Dec. 31, 2020) seeks
to recover damages for the Defendants' egregious violations of the
Fair Labor Standards Act and the New York Labor Law by failing to
pay overtime compensation, failing to furnish a wage notice upon
hiring, and failing to provide accurate wage statements.
Mr. Giron was employed by the Defendants from in or around March
2010 until in or around July 2020, whose primary duties include
fencing and cementing services, cleaning and performing other
miscellaneous duties.
V & O Montalvan Fence Corp. is a fence contractor in Uniondale, New
York.[BN]
The Plaintiff is represented by:
Roman Avshalumov, Esq.
HELEN F. DALTON & ASSOCIATES, P.C.
80-02 Kew Gardens Road, Suite 601
Kew Gardens, NY 11415
Telephone: (718) 263-9591
VALERY SWEENY: Molina Sues Over Failure to Pay Overtime Wages
-------------------------------------------------------------
Mirna Molina, an individual, on behalf of herself and all other
Aggrieved Employees v. VALERY SWEENY D.D.S., a corporation; VALERY
SWEENY, an individual; and DOES 1 through 100, inclusive, Case No.
21STCV01785 (Cal. Super. Ct., Los Angeles Cty., Jan. 15, 2021), is
brought against the Defendants for their violation of the
California Labor Code by failing to pay the Plaintiff overtime
wages.
The Plaintiff worked in excess of eight and in excess 12 of hours
in a workday or 40 hours in a workweek. The Defendant routinely
required the Plaintiff and the other Aggrieved Employees to perform
work tasks before or after their scheduled shifts, or during
off-the-clock meal breaks, and during rest breaks. As a
consequence, the Defendant willfully failed to pay the Plaintiff
and the other Aggrieved Employees all of the wages to which they
were entitled, says the complaint.
The Plaintiff was hired by the Defendant as a Front Desk associate
on January 2, 2019.
The Defendant is a dental office doing business in the State of
California.[BN]
The Plaintiff is represented by:
Haig B. Kazandjian, Esq.
Cathy Gonzalez, Esq.
Kevin Crough, Esq.
HAIG B. KAZANDJIAN LAWYERS, APC
801 North Brand Boulevard, Suite 970
Glendale, CA 91203
Phone: 1-818-696-2306
Facsimile: 1-818-696-2307
Email: haig@hbklawyers.com
cathy@hbklawyers.com
kevin@hbklawyers.com
VELOCITY INVESTMENTS: Jackson Suit Trial-Related Deadlines Stayed
-----------------------------------------------------------------
In the class action lawsuit captioned as TYNISHA JACKSON, DAVID
CREVELING, and MARY HANS, Individually and on behalf of all others
similarly situated, v. VELOCITY INVESTMENTS, LLC, Case No.
5:20-cv-02524-JFL (E.D. Pa.), the Hon. Judge Joseph F. Leeson Jr.
entered an order:
1. granting The Jackson Plaintiffs' request and directing
them to file a status report with the Court on or before
January 25, 2021, indicating whether they have received
the material referenced in the parties' correspondence;
2. granting the parties' joint request to hold summary
judgment and trial-related deadlines in abeyance pending
determinations of the class certification motions;
-- The existing summary judgment and trial-related
deadlines are stayed.
3. directing the parties, within seven days of the Court's
determination of the pending motions for class
certification, to file with the Court a joint proposed
Order setting forth a proposed timeline for the filing of
motions for summary judgment.
Velocity Investments, LLC is a national buyer of delinquent
consumer receivables.
A copy of the Court's order dated Jan. 13, 2020 is available from
PacerMonitor.com at https://bit.ly/2LKujg7 at no extra charge.[CC]
VELOCITY INVESTMENTS: Summary Judgment in Massaro Suit on Hold
--------------------------------------------------------------
In the class action lawsuit captioned as MARC MASSARO, BENJAMIN
BERNSTEIN, and GREG AIKENS, Individually and on behalf of all
others similarly situated, v. VELOCITY INVESTMENTS, LLC, Case No.
5:20-cv-01845-JFL (E.D. Pa.), the Hon. Judge Joseph F. Leeson Jr.
entered an order:
1. granting The Jackson Plaintiffs' request and directing
them to file a status report with the Court on or before
January 25, 2021, indicating whether they have received
the material referenced in the parties' correspondence;
2. granting the parties' joint request to hold summary
judgment and trial-related deadlines in abeyance pending
determinations of the class certification motions;
-- The existing summary judgment and trial-related
deadlines are hereby stayed.
3. directing the parties, within seven days of the Court's
determination of the pending motions for class
certification, to file with the Court a joint proposed
Order setting forth a proposed timeline for the filing of
motions for summary judgment.
Velocity Investments, LLC is a national buyer of delinquent
consumer receivables.
A copy of the Court's order dated Jan. 13, 2020 is available from
PacerMonitor.com at https://bit.ly/3sA1m7b at no extra charge.[CC]
VIPKIDS INTERNATIONAL: Meehan Labor Suit Removed to E.D.N.Y.
------------------------------------------------------------
The case tiled Kevin J. Meehan, individually, on behalf of
themselves, and on behalf of all persons similarly situated,
Plaintiff, v. VIPKid, VIPKids International, Inc., Beijing Dami
Technology Co., Ltd., Beijing Dami Future Technology Co., Ltd.,
Tencent Holdings Ltd., Cloud & Smart Industries, Tencent Holdings
Ltd., Tencent America LLC, Tencent Cloud LLC, China Renaissance
Holdings Ltd., Sequoia Capital Operations LLC, VIPKID HK Limited,
VIPKID Class HK Limited, and VIPTeach Inc., Defendants, Case No.
20BBCV00719 (N.Y. Sup., November 13, 2020), was removed to the
United States District Court for the Eastern District of New York
on December 30, 2020, under Case No. 20-cv-06370.
In the original complaint, Plaintiff accuses Defendants of
fraud-in-the-inducement, common law fraud, unlawful deceptive acts
or practices in violation of New York General Business Law Section
349, violations of the New York Civil Rights Law Sections 50-51,
conspiracy, unjust enrichment, wage and hour violations under the
federal Fair Labor Standards Act, wage and hour violations under
the New York labor laws, retaliation in violation of New York Labor
Law Section 215 and whistleblower retaliation in violation of New
York Labor Law Section 740.
Defendants cite that the class easily exceeds the 100-member
requirement imposed by the Class Action Fairness Act, that the
amount in controversy exceeds $5,000,000, and that Plaintiff and
Defendant are citizens of different states, as basis for removal.
[BN]
Defendants are represented by:
Kevin R. Vozzo, Esq.
Michael L. Lynch, Esq.
EPSTEIN BECKER & GREEN, P.C.
875 Third Avenue
New York, NY 10022
Tel: (212) 351-4500
Email: kvozzo@ebglaw.com
mllynch@ebglaw.com
WALMART STORES: Lisowski Appeals Order in Consumer Suit to 3rd Cir.
-------------------------------------------------------------------
Plaintiff Christopher Lisowski filed an appeal from a court ruling
entered in the lawsuit entitled CHRISTOPHER LISOWSKI, on behalf of
himself and all other similarly situated v. WALMART STORES, INC.,
t/d/b/a WALMART, Case No. 2-20-cv-01729, in the U.S. District Court
for the Western District of Pennsylvania.
As previously reported in the Class Action Reporter, the U.S.
District Court for the District of Pennsylvania denied the
Plaintiff's motion to remand based on the Tax Injunction Act and
principles of comity.
Mr. Lisowski sued Walmart in state court for conversion, unjust
enrichment, and violation of the Unfair Trade Practices and
Consumer Protection Law. The complaint alleges that Walmart
improperly collected sales tax on two, 6-packs of "5-Hour Energy"
supplements purchased by Mr. Lisowski. He alleges that 5-Hour
Energy drinks are tax-exempt "Dietary Supplements and Substitutes"
under 61 Pa. Code Section 58.1. He further alleges that the
Pennsylvania Department of Revenue gave express notice that dietary
supplements and substitutes, in any form are exempt from tax.
Mr. Lisowski seeks review of the District Court's order entered
January 7, 2021, denying his motion to remand the case to state
court.
The appellate case is captioned as Christopher Lisowski v. WalMart
Stores Inc., Case No. 21-1070, in the United States Court of
Appeals for the Third Circuit, January 13, 2021.[BN]
Plaintiff-Appellant CHRISTOPHER LISOWSKI, on behalf of himself and
all others similarly situated, is represented by:
Frank G. Salpietro, Esq.
Emily E. Town, Esq.
ROTHMAN GORDON
310 Grant Street, 3rd Floor
Pittsburgh, PA 15219
Telephone: (412) 338-1185
E-mail: fgsalpietro@rothmangordon.com
eetown@rothmangordon.com
Defendant-Appellee WALMART STORES INC, TDBA WalMart is represented
by:
Suyash Agrawal, Esq.
Paul Berks, Esq.
MASSEY & GAIL
50 East Washington Street, Suite 400
Chicago, IL 60602
Telephone: (312) 379-0949
E-mail: sagrawal@masseygail.com
pberks@masseygail.com
- and -
Michael P. Pest, Esq.
Thomas E. Sanchez, Esq.
ECKERT SEAMANS CHERIN & MELLOTT
600 Grant Street
44th Floor, US Steel Tower
Pittsburgh, PA 15219
Telephone: (412) 566-1930
E-mail: mpest@eckertseamans.com
tsanchez@eckertseamans.com
WEST ROAD: Calhoun Has Until May 14 to File Class Certification Bid
-------------------------------------------------------------------
In the class action lawsuit captioned as Samantha Calhoun, v. West
Road Pizza Stop, Inc. et al., Case No. 5:20-cv-12661-JEL-DRG (E.D.
Mich.), the Hon. Judge Judith E. Levy entered an order approving
the following the dates set and agreed on by the parties to this
litigation:
Event Date
Settlement Conference before April 2021
Magistrate Judge Grand:
Plaintiff's Rule 23 Motion for May 14, 2021
Class Certification filed by:
Discovery completed by: 60 days after ruling
on class certification
Dispositive Motions filed by 90 days after ruling
on class certification
Motions in Limine filed by: To be determined
Joint Final Pretrial Order To be determined
submitted by:
Final Pretrial Conference: To be determined
Proposed Joint Jury Instructions & To be determined
Verdict Form submitted by:
Trial Date: To be determined
The Court said, "The parties are required to first confer and
attempt to narrow any disagreements in regard to discovery. E.D.
Mich. Local R. 37.1. In the event a dispute still exists after the
parties confer, the Court's practice guidelines require parties to
contact the Court via telephone prior to filing any discovery
motions. The Court will then hold a telephonic conference with the
parties regarding the subject of the dispute. The Court will only
permit discovery motions to be filed after it holds a telephonic
conference on the dispute; discovery motions filed without leave of
Court will be stricken from the docket."
A copy of the Court's scheduling order dated Jan. 14, 2020 is
available from PacerMonitor.com at https://bit.ly/3oYynYy at no
extra charge.[CC]
WESTERN REFINING: Class Cert. Bid Deadline Continued to June 21
---------------------------------------------------------------
In the class action lawsuit captioned as ELIZABETH HALL and
SHANIECE MAYNOR, individually and on behalf of all others similarly
situated, v. WESTERN REFINING RETAIL, LLC; and DOES 1 through 10,
inclusive, Case No. 5:19-cv-00855-VAP-SK (C.D. Cal.), the Hon.
Judge Virginia A. Phillips entered an order that:
1. The Motion for Class Certification due date is continued
from February 21, 2021 to June 21, 2021;
2. The Opposition to Motion for Class Certification due date
is continued from April 2, 2021 to July 2, 2021; and
3. The Reply in Support of Motion for Class Certification due
date is continued from April 26, 2021 to July 26, 2021.
Western Refining, Inc. refines crude oil and markets petroleum
products. The Company produces gasoline, diesel, and jet fuel.
Western Refining serves customers in the United States and Mexico.
A copy of the Court's order continuing case deadlines dated Jan.
14, 2020 is available from PacerMonitor.com at
https://bit.ly/3p29viw at no extra charge.[CC]
ZIP CAPITAL: Smith Files TCPA Suit in C.D. California
-----------------------------------------------------
A class action lawsuit has been filed against Zip Capital Group,
LLC. The case is styled as Jonathan Smith, individually and on
behalf of all others similarly situated v. Zip Capital Group, LLC,
a California limited liability company, Case No. 8:21-cv-00073
(C.D. Cal., Jan. 14, 2021).
The lawsuit is brought over alleged violation of the Telephone
Consumer Protection Act.
Zip Capital Group -- https://zipcapitalgroup.com/ -- is a small
business lender servicing small and medium-sized businesses in many
industries across the United States.[BN]
The Plaintiff is represented by:
Joshua E Moyer, Esq.
SHAMIS AND GENTILE PA
401 West A Street Suite 200
San Diego, CA 92101
Phone: (305) 479-2299
Fax: (786) 623-0915
Email: jmoyer@shamisgentile.com
*********
S U B S C R I P T I O N I N F O R M A T I O N
Class Action Reporter is a daily newsletter, co-published by
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USA, and Beard Group, Inc., Washington, D.C., USA. Rousel Elaine T.
Fernandez, Joy A. Agravante, Psyche A. Castillon, Julie Anne L.
Toledo, Christopher G. Patalinghug, and Peter A. Chapman, Editors.
Copyright 2021. All rights reserved. ISSN 1525-2272.
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