/raid1/www/Hosts/bankrupt/CAR_Public/210217.mbx
C L A S S A C T I O N R E P O R T E R
Wednesday, February 17, 2021, Vol. 23, No. 29
Headlines
3M CO: Bid to Dismiss Consolidated Putative Class Suit Pending
3M CO: Bid to Dismiss Scotchgard-Related Class Suit Pending
3M CO: Discovery Ongoing in "King" Suit
3M CO: Joint Opposition to Class Certification Bid Pending
3M CO: Parchment Resident's Class Suit Underway
ADT LLC: Doty Class Certification Bid Must Be Filed by June 11
ALDER PROTECTION: Court Narrows Claims in Amended Ennis Labor Suit
ALEXION PHARMA: Bid to Nix SOLIRIS Sales Practices Suit Pending
ALEXION PHARMA: Oral Argument on Bid to Dismiss Set for Feb. 25
ALPHA AND OMEGA: Bid to Dismiss Gray Suit Pending
AMAZON.COM, INC: Can Partly Compel Arbitration in Wilcosky Suit
AMGEN INC: Oral Argument on Plaintiffs' Appeal Set for Feb. 25
AMGEN INC: Sensipar(R) Antitrust Class Actions Underway
ARTHUR J. GALLAGHER: 9th Cir. Affirms Dismissal of Class Suit
AUSTRALIA: Home Affairs Dep't Must Compensate Asylum Seekers
BAYADA HOME: 10th Cir. Reverses Summary Judgment in Kennett Suit
BED BATH: Court Grants Bid to Dismiss Turnier With Leave to Amend
BEND MEMORIAL: Class Certification Bid Filing Due Sept. 14
BIT DIGITAL: Robbins Geller Reminds Investors of March 22 Deadline
BLACKJEWEL LLC: Settles Wyoming Coal Miners' Class Action Lawsuit
BOARDWALK PIPELINE: Mishal & Berger Putative Class Suit Underway
BP PLC: Dismissal of Iames & Alvarado from Oil Spill Suit Affirmed
BRISTOL-MYERS: Appeal in CheckMate-026 Related Suit Pending
BRISTOL-MYERS: Continues to Defend Abilify-Related Suits
BROTHERS AND SON: Permit to Send Notice to Class of Servers Sought
CALIFORNIA: Bids to Dismiss Amended Culinary Studios Suit Granted
CBS TELEVISION: Bid for Collective Action Certification Tossed
CDK GLOBAL: AutoLoop Class Action in Illinois Still Ongoing
CDK GLOBAL: Cross-Motions for Summary Judgment Pending
CHINESE-AMERICAN PLANNING: Appeals Feb. 9 Ruling in Chu Suit
CITRIX SYSTEMS: Bid to Dismiss GoTo Services Spinoff Suit Pending
CLOVER HEALTH: Gainey McKenna Reminds Investors of April 6 Deadline
CLOVER HEALTH: RM Law Reminds Investors of April 6 Deadline
COMMERCE ENERGY: Files Writ of Certiorari Bid w/ Sup. Ct. in Hurt
COTY INC: Continues to Defend Garrett-Evans Putative Class Action
COTY INC: Lewis Putative Class Action Underway
COTY INC: Massachusetts Laborers' Pension Fund Suit Ongoing
COTY INC: Rumsey Purported Class Action Voluntarily Dismissed
CVS PHARMACY: Cal. App. Flips Summary Judgment in Zamora Class Suit
DISCOVER BANK: Appeals Adv. Proceeding Ruling in Golden to E.D.N.Y
DOMETIC CORP: 11th Cir. Reverses Denial of Class Certification
EASTERN MUSHROOM: Wins Partial Summary Judgment in Winn-Dixie Suit
ENDO INT'L: Bucks County ERF Named Class Action Lead Plaintiff
EQT CORPORATION: Certification of Real Property Owners Class Sought
EQUIFAX INC: Data Breach Class Suit Settlement Approval Challenged
ESSA BANCORP: Bid to Dismiss Sherman Act Claim Pending
ESSA BANCORP: Mediation Ongoing in Suit Against Subsidiary
FCA US: Agreed Conference & Status Report Order in Garlough OK'd
FEDEX CORP: Bondz Dismissed From Overpeck Class Suit for Misjoinder
FIRST STUDENT: May 20 New Deadline for Class Status Bid
FIRSTSOURCE SOLUTIONS: 13 Opt-in Plaintiffs in Bernardez Dismissed
FREEDOM MORTGAGE: Franceski Moved to Eastern District of Virginia
FRONTIER MANAGEMENT: Wright Partly Granted Leave to Amend Complaint
GABRIEL WORTMAN: More People Added as Defendants to Class Action
GENERAL ELECTRIC: 2nd Cir. Affirms ERISA Class Action Dismissal
GEORGETOWN UNIVERSITY: Denial of Leave to Amend Wilcox Suit Vacated
HARRIS WATER: Pino Suit Seeks to Certify Class Action
HEARTLAND BANK: Court Narrows Claims in PLB Suit Over Ponzi Scheme
HOSOPO CORP: Wins Final Approval of Settlement in Davila-Lynch Suit
HUDSON HALL: Court Denies Bid to Strike Stewart Responses to RFAs
IBM CORP: Court Grants in Part Bid to Dismiss Comin Class Suit
IMMEDIATE CREDIT: March 26 Class Status Bid Filing Extension Sought
IRHYTHM TECH: Levi & Korsinsky Reminds of April 2 Deadline
IRHYTHM TECHNOLOGIES: RM Law Reminds Investors of April 2 Deadline
JACOBS ENGINEERING: Roane County Resident's Class Suit Ongoing
JARINC LTD: Blose Suit Seeks Initial Approval of Settlement
JERNIGAN CAPITAL: Robbins Named Lead Counsel in Erickson Class Suit
JOHNSON UTILITIES: Appeals Ruling in Castillo Suit to 9th Circuit
KITCHENETTE 123: Modified Settlement in Gomez Wins Final Approval
LAND O'LAKES: Minnesota Court Narrows Claims in Parmer ERISA Suit
MASSACHUSETTS: Dismissal of Donahue Suit v. Trial Court Affirmed
MDL 2670: Bid to Stay Pending Motions in Antitrust Suit Denied
MDL 2724: Court Rules on Picks for Antitrust Suit Bellwether Cases
MDL 2724: Report & Recommendation in Antitrust Suit Approved
MEDICUS HEALTHCARE: Moreau Seeks FLSA Conditional Certification
MESA AIR: IPO-Related Putative Class Lawsuits in Arizona Underway
MISSISSIPPI: Bid to Certify Inmates Class in Bennett v. DOC Denied
MONDELEZ INT'L: Continues to Defend Wheat Trading-Related Suit
NATIONAL ASSOCIATION: Class Status Bid Filing Due Feb. 22
NATIONAL ASSOCIATION: Class Status Deadline Extension Nixed as Moot
NATIONSTAR MORTGAGE: Court Denies Partial Bid to Dismiss Ellis Suit
NIKE INC: Settles ADA Class Action Lawsuit in California
ON2 TECHNOLOGIES: March 6 Settlement Opt-Out Deadline Set
PATENAUDE & FELIX: Greenwald Awarded $36K in Attorney Fee in Reeves
PHYSICIAN COMPASSIONATE: Court May Reject TCPA Class Settlement
PLUM ORGANICS: Faces Class Action Over Baby Food Contaminants
PNS STORES: Wellons Appeals Ruling in Labor Suit to Ninth Circuit
RAYTHEON TECHNOLOGIES: Darnis Putative Class Action Ongoing
RAYTHEON TECHNOLOGIES: Putative Securities Class Suit Underway
RBS CITIZENS: SCU & LISC as Cy Pres Beneficiaries in Sanders Okayed
ROBINHOOD FINANCIAL: California Law Firms File Amended Complaint
ROYAL BANK OF CANADA: Faces Investors' Suit Over Mutual Funds Fees
SECOND ROUND: Final Approval of Class Action Settlement Sought
SIRIUS XM: Court Issues Final Order & Judgment in Alvarez Suit
SOUTHWEST AIRLINES: Bid to Junk Texas Securities Suit Pending
SOUTHWEST AIRLINES: Discovery Ongoing in Boeing MAX Defect Suit
SOUTHWEST AIRLINES: OK of Settlement in Class Suit Under Appeal
SPECTRUM BRANDS: Approval of Settlement in Securities Suit Denied
ST. JOHN'S CATHOLIC: Faces Sexual Abuse Class Action Lawsuit
STARBUCKS CORP: Faces Class Action Over Frap Real Vanilla Claims
SWAGAT RESTAURANT: Aurora Dismissed From Naik Without Prejudice
TAYLOR FARMS: Settles Labor Class Action Lawsuit for $5.3 Million
TESLA INC: 9th Cir. Affirms Dismissal of Stockholder Class Suit
TESLA INC: Trial in Class Suit Over Musk Tweet Set for May 2022
TUPELO, MS: Edwards May File Renewed Class Status Bid by March 29
TYSON FOODS: RM Law Reminds Investors of April 5 Deadline
UNIVERSITY OF CALIFORNIA: July 12 Settlement Fairness Hearing Set
VELOCITY FINANCIAL: Court Dismisses Securities Class Action Suit
VIRTUSA CORP: Austin HoldCo Merger Related Suits Underway
WELLS FARGO: May 10 Extension to File Class Status Bid Sought
WELLS FARGO: Settles Wage-and-Hour Class Action for $2 Million
ZACHARY HOLDINGS: Disputes Over Scheduling Order in Blackmon Solved
ZAGG INC: Facing Zephyr Parent Merger Related Suits
[*] Bank Settles ATM Fee Class Action Lawsuit for $5.2 Million
[*] Meme Stocks Trading Restriction Prompts Class Actions
[*] Report Says Securities Class Action Filings Down 22% in 2020
*********
3M CO: Bid to Dismiss Consolidated Putative Class Suit Pending
--------------------------------------------------------------
3M Company said in its Form 10-K report filed with the U.S.
Securities and Exchange Commission on February 4, 2021, for the
fiscal year ended December 31, 2020, that the bid to dismiss the
Heavy & General Laborers' Locals 472 & 172 Welfare Fund
consolidated putative class action suit, is pending.
In July 2019, Heavy & General Laborers' Locals 472 & 172 Welfare
Fund filed a putative securities class action against 3M Company,
its former Chairman and CEO, current Chairman and CEO, and former
CFO in the U.S. District Court for the District of New Jersey.
In August 2019, an individual plaintiff filed a similar putative
securities class action in the same district.
Plaintiffs allege that defendants made false and misleading
statements regarding 3M's exposure to liability associated with
Perfluorooctanoic acid (PFAS), and bring claims for damages under
Section 10(b) of the Securities Exchange Act of 1934 and SEC Rule
10b-5 against all defendants, and under Section 20(a) of the
Securities and Exchange Act of 1934 against the individual
defendants.
In October 2019, the court consolidated the securities class
actions and appointed a group of lead plaintiffs.
In January 2020, the defendants filed a motion to transfer venue to
the U.S. District Court for the District of Minnesota. In August
2020, the court denied the motion to transfer venue, and in
September 2020, the defendants filed a petition for writ of
mandamus to the U.S. Court of Appeals for the Third Circuit.
In November 2020, the federal Court of Appeals granted 3M's
petition for a writ of mandamus and directed the New Jersey federal
court to transfer the action to the Minnesota federal court.
The defendants filed a motion to dismiss the action in January
2021.
The suit is in the early stages of litigation.
3M Company operates as a technology company worldwide. The
company's Industrial segment offers tapes, abrasives, adhesives,
ceramics, sealants, specialty materials, purification products,
closure systems, acoustic systems products, automotive components,
abrasion-resistant films, and paint finishing and detailing
products. The company was founded in 1902 and is headquartered in
St. Paul, Minnesota.
3M CO: Bid to Dismiss Scotchgard-Related Class Suit Pending
-----------------------------------------------------------
3M Company said in its Form 10-K report filed with the U.S.
Securities and Exchange Commission on February 4, 2021, for the
fiscal year ended December 31, 2020, that the motion to dismiss
certain claims in the consolidated putative class action pending in
the U.S. District Court for the Western District of Michigan, is
pending.
In Michigan, one consolidated putative class action is pending in
the U.S. District Court for the Western District of Michigan
against 3M and Wolverine World Wide.
The action arises from Wolverine's allegedly improper disposal of
materials and wastes, including 3M Scotchgard, related to
Wolverine's shoe manufacturing operations.
Plaintiffs allege Wolverine used 3M Scotchgard in its manufacturing
process and that chemicals from 3M's product contaminated the
environment and drinking water sources after disposal.
In January 2021, 3M moved to dismiss certain claims in the
complaint, and the case remains in early stages of litigation.
In addition to the consolidated federal court putative class
action, as of December 31, 2020, 3M is a defendant in approximately
274 private individual actions in Michigan state court based on
similar allegations.
These cases are coordinated for pre-trial purposes. Five of these
cases were selected over time for bellwether trials. In January
2020, the court issued the first round of dispositive motion
rulings related to the first two bellwether cases, including
dismissing the second bellwether case entirely and dismissing
certain plaintiffs' medical monitoring and risk of future disease
claims, and granting summary judgment to the defendants on one
plaintiff’s cholesterol injury claims.
The parties settled the first bellwether case in early 2020. In
June 2020, the court denied the plaintiffs' motion to reconsider
the dismissal of the second bellwether case, and the plaintiffs
have appealed the decision to the state appellate court.
In January 2021, the court granted summary judgment in favor of the
defendants in one of three remaining bellwether cases.
The remaining two bellwether trials are tentatively scheduled for
October 2021, subject to COVID-19 developments. The parties have
engaged in mediation efforts in both the putative class action and
the state court mass action cases.
3M Company operates as a technology company worldwide. The
company's Industrial segment offers tapes, abrasives, adhesives,
ceramics, sealants, specialty materials, purification products,
closure systems, acoustic systems products, automotive components,
abrasion-resistant films, and paint finishing and detailing
products. The company was founded in 1902 and is headquartered in
St. Paul, Minnesota.
3M CO: Discovery Ongoing in "King" Suit
---------------------------------------
3M Company said in its Form 10-K report filed with the U.S.
Securities and Exchange Commission on February 4, 2021, for the
fiscal year ended December 31, 2020, that discovery is ongoing in
the "King" suit.
In November 2017, a putative class action (the "King" case) was
filed against 3M, Dyneon, Daikin America and the West Morgan-East
Lawrence Water and Sewer Authority (Water Authority) in the U.S.
District Court for the Northern District of Alabama.
The plaintiffs are residents of Lawrence and Morgan County, Alabama
who receive their water from the Water Authority and seek
injunctive relief, attorneys' fees, compensatory and punitive
damages for their alleged personal injuries.
The plaintiffs contend that the defendants own and operate
manufacturing and disposal facilities in Decatur, Alabama that have
released and continue to release PFOA, PFOS and related chemicals
into the groundwater and surface water of their sites, resulting in
discharges into the Tennessee River.
The plaintiffs contend that, as a result of the alleged discharges,
the water supplied by the Water Authority to the plaintiffs was,
and is, contaminated with Perfluorooctanoic acid (PFOA),
Perfluorooctanesulfonic acid (PFOS) and related chemicals at a
level dangerous to humans.
In November 2019, the King plaintiffs amended their complaint to
withdraw all class allegations. Since then, the plaintiffs have
added 37 new individual plaintiffs and voluntarily dismissed five
plaintiffs (for a total of 55 plaintiffs).
The case is scheduled for trial in June 2022. Discovery, in this
case, is proceeding.
3M Company operates as a technology company worldwide. The
company's Industrial segment offers tapes, abrasives, adhesives,
ceramics, sealants, specialty materials, purification products,
closure systems, acoustic systems products, automotive components,
abrasion-resistant films, and paint finishing and detailing
products. The company was founded in 1902 and is headquartered in
St. Paul, Minnesota.
3M CO: Joint Opposition to Class Certification Bid Pending
----------------------------------------------------------
3M Company said in its Form 10-K report filed with the U.S.
Securities and Exchange Commission on February 4, 2021, for the
fiscal year ended December 31, 2020, that the joint opposition to
the class certification motion is, pending.
In October 2018, 3M and other defendants, including DuPont and
Chemours, were named in a putative class action in the U.S.
District Court for the Southern District of Ohio brought by the
named plaintiff, a firefighter allegedly exposed to
Perfluorooctanoic acid (PFAS) chemicals through his use of
firefighting foam, purporting to represent a putative class of all
U.S. individuals with detectable levels of PFAS in their blood.
The plaintiff brings claims for negligence, battery, and conspiracy
and seeks injunctive relief, including an order "establishing an
independent panel of scientists" to evaluate PFAS. 3M and other
entities jointly filed a motion to dismiss in February 2019.
In September 2019, the court denied the defendants' motion to
dismiss. In February 2020, the court denied 3M's motion to transfer
the case to the AFFF MDL.
In December 2020, the defendants filed their joint opposition to
the class certification motion filed earlier by the plaintiff.
3M Company operates as a technology company worldwide. The
company's Industrial segment offers tapes, abrasives, adhesives,
ceramics, sealants, specialty materials, purification products,
closure systems, acoustic systems products, automotive components,
abrasion-resistant films, and paint finishing and detailing
products. The company was founded in 1902 and is headquartered in
St. Paul, Minnesota.
3M CO: Parchment Resident's Class Suit Underway
-----------------------------------------------
3M Company said in its Form 10-K report filed with the U.S.
Securities and Exchange Commission on February 4, 2021, for the
fiscal year ended December 31, 2020, that the company continues to
defend a putative class action suit initiated by residents of
Parchment.
3M is a defendant, together with Georgia-Pacific as co-defendant,
in a putative class action in federal court in Michigan brought by
residents of Parchment, who allege that the municipal drinking
water is contaminated from waste generated by a paper mill owned by
Georgia-Pacific's corporate predecessor.
The defendants moved to dismiss certain claims in the complaint,
and that motion was denied in January 2021. The parties continue to
engage in discovery.
As a result of discussions among Georgia-Pacific, 3M and
municipalities near Parchment, Georgia-Pacific and 3M have
contributed to a fund of approximately $5 million to provide
expanded municipal water service in the area.
The municipalities have released 3M from claims relating to or
arising out of the extension of municipal water or the alleged Per-
and polyfluoroalkyl substances (PFAS) contamination in the area of
that extension.
The putative class action claims are not included in this
resolution.
3M Company operates as a technology company worldwide. The
company's Industrial segment offers tapes, abrasives, adhesives,
ceramics, sealants, specialty materials, purification products,
closure systems, acoustic systems products, automotive components,
abrasion-resistant films, and paint finishing and detailing
products. The company was founded in 1902 and is headquartered in
St. Paul, Minnesota.
ADT LLC: Doty Class Certification Bid Must Be Filed by June 11
--------------------------------------------------------------
In the class action lawsuit captioned as SHANA DOTY, individually
and on behalf of all others similarly situated, v. ADT, LLC d/b/a
ADT SECURITY SERVICES, a Delaware limited liability company, Case
No. 0:20-cv-60972-AHS (S.D. Fla.), the Hon. Judge Raag Singhal
entered an order setting trial and pre-trial schedule, requiring
mediation, and referring certain matters to Magistrate Judge, as
follows:
March 03, 2021 The parties shall select a mediator
pursuant to Local Rule 16.2, shall
schedule a time, date, and place for
mediation, and shall jointly file a
notice, and proposed order scheduling
mediation via CM/ECF.
April 1, 2021 All motions to amend pleadings or join
parties are filed.
June 11, 2021 The Plaintiff files motion for class
certification.
Sept. 7, 2021 The Plaintiff discloses experts and
exchanges expert witness summaries or
reports.
Oct. 1, 2021 The Defendants disclose experts and
exchange expert witness summaries or
reports.
Nov. 5, 2021 All discovery, including expert discovery,
is completed.
Nov. 12, 2021 The Parties must have completed mediation
and filed a mediation report.
Dec. 3, 2021 All pre-trial motions and Daubert motions
(which include motions to strike experts)
are filed. This deadline includes all
dispositive motions.
Feb. 16, 2022 All motions in limine are filed.
March 5, 2022 The Parties submit joint pre-trial
stipulation in accordance with Local
Rule 16.1(e), proposed jury instructions
and verdict form, or proposed findings of
fact and conclusions of law, as
applicable.
ADT LLC designs and manufactures security systems. The Company
offers security cameras, fire and life safety, and home security
systems.
A copy of the Court's order dated Feb. 5, 2020 is available from
PacerMonitor.com at http://bit.ly/3pniCd5at no extra charge.[CC]
ALDER PROTECTION: Court Narrows Claims in Amended Ennis Labor Suit
------------------------------------------------------------------
In the case, SHADRACH ENNIS, NICOLAAS VANLEEUWEN, and TERRANCE
JESCLARD, individually and on behalf of all others similarly
situated, Plaintiffs v. ALDER PROTECTION HOLDINGS, LLC, a Delaware
limited liability company; ADAM SCHANZ, an individual; ADAM
CHRISTIAN, an individual; KYLE DEMORDAUNT, an individual; DANE
MCCARTNEY, an individual; and DOES I-X, Defendants, Case No.
2:19-cv-00512 (D. Utah), Judge Clark Waddoups of the U.S. District
Court for the District of Utah granted in part and denied in part
the Defendants' Motion to Dismiss Amended Collective/Class Action
Complaint.
Defendant Alder is a door-to-door sales company engaged in the
business of selling, installing, and servicing electronic security
equipment. Defendant Schanz is the founder, owner, manager, and
the CEO of Alder. Defendant Christian is the General Counsel of
Alder. Defendant DeMordaunt is the CFO of Alder. Defendant
McCartney is the President of Sales for the company.
Alder relies on individual sales representatives to sell its alarm
services and products on a commission basis to residential
customers throughout the United States. The individuals who Alder
recruits as door-to door sales representatives are predominantly
college-age males who typically work during the summer months.
Plaintiff Ennis worked for Alder from approximately January of 2016
to February of 2019. Plaintiff Vanleeuwen worked for Alder from
approximately March of 2016 to January of 2019. Plaintiff Jesclard
worked for Alder from approximately 2011 to 2018.
The Plaintiffs allege that Alder incentivizes sales representatives
to forego immediate compensation in exchange for illusory promises
of long-term wealth through the creation of 'books of business'
that will pay guaranteed returns to them in the future. Alder
requires each sales representative to enter an independent
contractor agreement that provides for how the sales representative
will be compensated.
The Plaintiffs attached a copy of a 2017 Divisional Sales Manager
Agreement to their operative Complaint as an example of a
compensation Agreement that Alder requires its sales
representatives to sign. The 2017 Divisional Sales Manager
Agreements granted Plaintiffs a "Contract Participation" under a
"2017 Residual Equity Plan." Residual Equity Plan and a separate
document--Alder's LLC Agreement--contain provisions relevant to
Plaintiffs' Residual-based compensation. The Plaintiffs do not
attach a contract for any year other than for 2017, and it is
unclear whether the same form of contract was in effect for other
years at issue.
The 2017 Divisional Sales Manager Agreement, the 2017 Residual
Equity Plan, and Alder's LLC Agreement are distinct from certain
Promissory Notes and Confessions of Judgment that the Plaintiffs
allege Alder "required" them "to sign" "at the time they were hired
by Alder and/or at various intervals throughout their relationship
with Alder." The Plaintiffs allege that Alder used the Notes and
Confessions of Judgment to control, intimidate, and retaliate
against its sales representatives.
Before the court is the Defendants' Motion to Dismiss. They made
nine arguments in their opening Motion. The court need only
address seven of those arguments.
The Plaintiffs' third cause of action is for "breach of contract."
For fraud claims, their seventh cause of action is for "common law
fraudulent inducement," and their eighth cause of action is for
"common law fraud." For securities law claim, the Plaintiffs' Ninth
Cause of Action is titled "Securities Fraud Utah Code Section
61-1-1, et seq. and Section 10(b) of The Exchange Act and Rule
10b-5)." The Plaintiffs' first cause of action is entitled
"Violation of the Fair Labor Standards Act of 1938 (Failure to Pay
Minimum and/or Overtime Wage)." Their sixth cause of action is
entitled "FLSA Retaliation." And their Tenth Cause of Action is
unjust enrichment.
Judge Waddoups granted in part and denied in part the Defendants'
Motion to Dismiss. He denied the Defendants' Motion to Dismiss as
to the Plaintiffs' (i) class and collective action claims, (ii)
common law fraud claims, (iii) claims for relief under Utah law,
(iv) FLSA minimum wage and overtime claims, (v) contract claims,
and (vi) unjust enrichment claim. He granted the Defendants'
Motion to Dismiss as to the Plaintiffs' (i) claims for relief under
federal law and (ii) FLSA retaliation claim. He granted in part
and denied in part as to the Plaintiffs' securities law claims.
Among other things, Judge Waddoups agrees with the Defendants'
argument that the Plaintiffs' securities fraud claim fails to
satisfy any of the elements required under the PSLRA. He notes the
operative Complaint does not specify each statement alleged to have
been misleading, and the reason or reasons why the statement is
misleading. Having determined that the operative Complaint does
not satisfy the first required element, the Judge need not address
the remaining elements. The Plaintiffs' ninth cause of action
brought under Section 10(b) of the Exchange Act is dismissed
without prejudice.
The Judge also agrees with the Defendants that the Plaintiffs have
not established a prima facie case of retaliation because they have
not alleged facts that they engaged in a protected activity under
the FLSA. The Plaintiffs argue that the Complaint includes
allegations that they made numerous oral and written complaints and
inquiries to the Defendants regarding Alder's failure to pay
compensation owed to them. The Defendants argue that the paragraph
that the Plaintiffs cite to "is conclusory," and that "it is not a
well-pleaded factual allegation showing that a Plaintiff made a
complaint under or relating to the FLSA." The Judge agrees that
the paragraph that the Plaintiffs chose to rely on in their
Opposition to the Defendants' Motion is, by definition, a
conclusory allegation. He dismissed the Plaintiffs' sixth cause of
action.
A full-text copy of the Court's Feb. 5, 2021 Memorandum Decision &
Order is available at https://tinyurl.com/3lzxy2g4 from
Leagle.com.
ALEXION PHARMA: Bid to Nix SOLIRIS Sales Practices Suit Pending
---------------------------------------------------------------
Alexion Pharmaceuticals, Inc. said in its Form 10-K report filed
with the U.S. Securities and Exchange Commission on February 8,
2021, for the fiscal year ended December 31, 2020, that the motion
to dismiss the complaint in the putative class action suit related
to SOLIRIS sales practices is still pending.
On December 29, 2016, a shareholder filed a putative class action
against the Company and certain former employees in the U.S.
District Court for the District of Connecticut, alleging that
defendants made misrepresentations and omissions about SOLIRIS.
On April 12, 2017, the court appointed a lead plaintiff. On July
14, 2017, the lead plaintiff filed an amended putative class action
complaint against the Company and seven current or former
employees.
Defendants moved to dismiss the amended complaint on September 12,
2017. Plaintiffs filed an opposition to defendants' motion to
dismiss on November 13, 2017, and defendants filed a reply brief in
further support of their motion on December 28, 2017.
On March 26, 2019, the court held a telephonic status conference.
During that conference, the court informed counsel that it was
preparing a ruling granting the defendants' pending motion to
dismiss.
The court inquired of plaintiffs' counsel whether they intended to
seek leave to amend their complaint, and indicated that if they
wished to file a second amended complaint, they would be allowed to
do so. On April 2, 2019, the court granted plaintiffs until May 31,
2019 to file a second amended complaint, thereby rendering moot
defendants' pending motion to dismiss.
On June 2, 2019, plaintiffs filed a second amended complaint
against the same defendants. The complaint alleges that defendants
engaged in securities fraud, including by making misrepresentations
and omissions in its public disclosures concerning the Company's
SOLIRIS sales practices, management changes, and related
investigations, between January 30, 2014 and May 26, 2017, and that
the Company's stock price dropped upon the purported disclosure of
the alleged fraud.
The plaintiffs seek to recover unspecified monetary relief,
unspecified equitable and injunctive relief, interest, and
attorneys' fees and costs.
Defendants' filed a motion to dismiss the amended complaint on
August 2, 2019; plaintiffs' filed their opposition to that motion
on October 2, 2019; and defendants' filed their reply in further
support of their motion on November 15, 2019.
Alexion said, "Given the early stage of these proceedings, we
cannot presently predict the likelihood of obtaining dismissal of
the case (or the ultimate outcome of the case if the motion to
dismiss is denied by the court), nor can we estimate the possible
loss or range of loss at this time."
No further updates were provided in the Company's SEC report.
Alexion Pharmaceuticals, Inc., a biopharmaceutical company,
develops and commercializes various therapeutic products. The
company was founded in 1992 and is headquartered in Boston,
Massachusetts.
ALEXION PHARMA: Oral Argument on Bid to Dismiss Set for Feb. 25
---------------------------------------------------------------
Alexion Pharmaceuticals, Inc. said in its Form 10-K report filed
with the U.S. Securities and Exchange Commission on February 8,
2021, for the fiscal year ended December 31, 2020, that oral
argument on the motion to dismiss is scheduled for February 25,
2021.
On July 2, 2020, the company completed the acquisition of Portola
Pharmaceuticals, Inc., a commercial-stage biopharmaceutical company
focused on life-threatening blood-related disorders, through a
tender offer and subsequent merger of Portola with Odyssey Merger
Sub Inc., a wholly-owned subsidiary of Alexion.
In connection with Alexion's acquisition of Portola, the company
had assumed litigation to which Portola was a party.
Among the litigation assumed is a securities fraud class action
filed against Portola and certain of its officers, directors and
underwriters under the Securities Act of 1933 and the Securities
Exchange Act of 1934.
Specifically, on January 16, 2020, February 7, 2020, and February
28, 2020, stockholders filed three putative class actions in the
U.S. District Court for the Northern District of California,
captioned Hayden v. Portola Pharmaceuticals, Inc., et al., No.
3:20-cv-00367-VC (N.D. Cal.); McCutcheon v. Portola
Pharmaceuticals, Inc., et al., No. 3:20-cv-00949 (N.D. Cal.); and
Southeastern Pennsylvania Transportation Authority v. Portola
Pharmaceuticals, Inc., et al., No. 3:20-cv-01501 (N.D. Cal.).
These cases have since been consolidated, and on April 22, 2020,
the Court issued an Order appointing the Alameda County Employees'
Retirement Association ("ACERA") as Lead Plaintiff in the
litigation.
ACERA filed its amended consolidated complaint on May 20, 2020,
asserting that Defendants made misrepresentations and omissions in
public disclosures (including in materials issued in connection
with the August 7, 2019 securities offering) concerning Portola's
sales of andexanet alfa, marketed as ANDEXXA in the United States
and ONDEXXYA in Europe, between January 8, 2019 and February 26,
2020.
Specifically, plaintiffs allege that Defendants made materially
false and/or misleading statements about the demand for ANDEXXA,
usage of ANDEXXA by hospitals and healthcare organizations, and
about Portola's accounting for its return reserves. Plaintiffs
contend that the alleged fraud was revealed on January 9, 2020,
when Portola announced its preliminary unaudited financial results
for the fourth quarter of 2019, and again on February 26, 2020,
when Portola issued its fourth quarter 2019 financial results.
In July 2020, Portola and the Portola Defendants filed a motion to
dismiss with the Court. The court heard oral argument on September
24, 2020 and granted defendants' pending motion to dismiss, but
with leave for plaintiffs to amend further their complaint.
Plaintiffs filed an amended complaint on November 5, 2020. In
December 2020, Portola and Portola Defendants filed a motion to
dismiss with the Court. Oral argument is scheduled for February 25,
2021.
Plaintiffs seek to recover unspecified monetary relief, interest,
and attorneys' fees and costs.
Alexion said, "Given the early stage of these proceedings, we
cannot presently predict the likelihood of obtaining dismissal of
the case (or the ultimate outcome of the case if that motion to
dismiss is denied by the court), nor can we estimate the possible
loss or range of loss at this time."
Alexion Pharmaceuticals, Inc., a biopharmaceutical company,
develops and commercializes various therapeutic products. The
company was founded in 1992 and is headquartered in Boston,
Massachusetts.
ALPHA AND OMEGA: Bid to Dismiss Gray Suit Pending
-------------------------------------------------
Alpha and Omega Semiconductor Limited said in its Form 10-Q Report
filed with the Securities and Exchange Commission on February 8,
2021, for the quarterly period ended December 31, 2020, that the
motion to dismiss filed in the putative class action suit initiated
by Darryl Gray, is pending.
On March 19, 2020, Darryl Gray, a stockholder of the Company, filed
a putative class action complaint in the United States District
Court for the Southern District of New York, alleging that the
Company and its management members made material misstatements or
omissions regarding the Company's business and operations,
including its export control practices relating to business
transactions with Huawei and its affiliate.
The Gray Action asserts claims under Section 10(b) of the Exchange
Act against the Company, its Chief Executive Officer and Chief
Financial Officer, as well as claims under Section 20(a) of the
Exchange Act against the Chief Executive Officer and Chief
Financial Officer. Among other remedies, the Gray Action seeks to
recover compensatory and other damages as well as attorney's fees
and costs.
On May 18, 2020, Plaintiff moved for an order appointing him as
Lead Plaintiff pursuant to Section 21D of the Exchange Act and
approving Glancy Prongay & Murray LLP as Lead Counsel for the
putative class.
On July 1, 2020, the Court entered an order granting the Motion and
requiring that: (i) Lead Plaintiff file an amended complaint or
designate the current complaint as operative within sixty days;
(ii) Defendants answer the complaint or otherwise move within sixty
days of such filing or designation; (iii) Lead Plaintiff file an
opposition, if any, within forty-five days; and (iv) Defendants
file a reply, if any, forty-five days thereafter.
On August 28, 2020, Plaintiff filed an amended complaint asserting
the same claims against the Defendants, and adding the Company's
Executive Vice President of Product Line as a defendant on both
claims.
On October 27, 2020, the Defendants moved to dismiss the action in
its entirety. Plaintiff filed his opposition on December 11, 2020
and Defendants filed their reply brief on January 25, 2021.
The Company believes the claims in the Gray Action are without
merit and intends to vigorously defend this litigation.
Alpha and Omega said, "Given the case is in its early stages and
still ongoing, the Company cannot estimate the reasonably possible
loss or range of loss that may occur."
Alpha and Omega Semiconductor Limited (AOS) is a designer,
developer and global supplier of a broad range of power
semiconductors, including a wide portfolio of Power MOSFET, IGBT,
IPM and Power IC products.
AMAZON.COM, INC: Can Partly Compel Arbitration in Wilcosky Suit
---------------------------------------------------------------
In the case, BENNETT WILCOSKY, MICHAEL GUNDERSON, and MICHAEL
GUNDERSON as next friend of E.G., a minor, each individually, and
on behalf of all others similarly situated, Judge Franklin U.
Valderrama, Plaintiffs v. AMAZON.COM, INC. and AMAZON.COM SERVICES,
INC., Defendants, Case No. 19-cv-05061 (N.D. Ill.), Judge Franklin
U. Valderrama of the U.S. District Court for the Northern District
of Illinois, Eastern Division, grants in part and denies in part
the Defendants' Motion to Compel Arbitration.
Amazon operates the "Alexa" voice based virtual assistant. Alexa
listens to users, records users' voices, and responds to the users'
voice commands using speech and voice recognition technology. It
uses the users' voice recordings to answer the users' questions and
fulfills the users' requests. Amazon offers Alexa services through
several means, including Amazon's Echo Smart speakers and Fire
tablets, as well as various third-party devices. It retains every
voice recording created by the user and any individual who happens
to be speaking near the Alexa device. The Alexa device transmits
all oral communications it records to Amazon's servers. Amazon
then indefinitely stores copies of all recordings on its own
servers for continued use and analysis.
Amazon does not inform Alexa users in writing that Alexa is
collecting biometric information or biometric identifiers. Nor
does Amazon inform bystanders--people who speak in the vicinity of
Alexa devices but do not own Alexa devices or have Alexa
accounts--in writing that Alexa is collecting biometric information
or biometric identifiers.
Amazon provides its products and services, including Alexa, to
users subject to Amazon's Conditions of Use ("COUs"). A user must
accept Amazon's COUs in order to purchase products and services
from or through Amazon, including purchasing an Alexa-capable
device and/or registering an Alexa account.
Since August 2011, Amazon's COUs have included an arbitration
agreement with a class action waiver provision. In addition to
Amazon COUs, Amazon has Alexa Terms of Use ("TOUs"), for users of
Alexa.
The named Plaintiffs sued the Defendants, individually and on
behalf of a putative class of similarly situated individuals the
Circuit Court of Cook County, Illinois for violating the Illinois
Biometric Information Privacy Act ("BIPA"). In their first cause
of action, the Plaintiffs allege that Amazon, through its "Alexa"
voice-based virtual assistant, captured, collected, and stored
their biometric identifiers (their voiceprints) without their
consent and without providing the Plaintiffs written disclosures
about the collection and storage of their voiceprints, in violation
of 740 ILCS 14/15(b). In their second cause of action, the
Plaintiffs claim that the Defendants failed to publicly provide a
retention schedule or guidelines for permanently destroying the
biometric identifiers or biometric information as required under
740 ILCS 14/15(a).
Amazon removed the case from the Circuit Court of Cook County to
the Court pursuant to the Class Action Fairness Act. In response
to a Court order, the parties submitted memoranda on whether the
Plaintiffs have alleged an injury-in-fact sufficient to establish
standing under Article III: The Plaintiffs argue against standing
and request that the Court remands their claims to state court,
whereas the Defendants argue Article III is satisfied.
The Defendants have moved the Court to Compel Arbitration and
Dismiss Plaintiffs' Complaint, or in the Alternative, Stay Claims
pursuant to Federal Rule of Civil Procedure 12(b)(3).
The Plaintiffs argue that the case should be remanded to state
court because the Complaint does not allege an injury-in-fact under
Section 15(a), and therefore all claims should be remanded for
purposes of efficiency and consistency. On the other hand, the
Defendants argue that the Plaintiffs have alleged an injury-in-fact
sufficient to establish standing under Article III over both their
Section 15(b) and Section 15(a) claims.
Judge Valderrama addresses the jurisdictional issue of Article III
standing before reviewing the merits of Defendants' Motion to
Compel Arbitration. He agrees with the Defendants and finds that
both BIPA violations alleged in the complaint rise to the level of
a concrete and particularized injury for purposes of Article III
standing.
First, by alleging that the Defendants failed to make the required
disclosures and failed to obtain the Plaintiffs' informed written
consent before collecting their biometric data, the Plaintiffs
sufficiently pled the "concrete injury BIPA intended to protect
against, i.e. a consumer's loss of the power and ability to make
informed decisions about the collection, storage, and use of her
biometric information." The Plaintiffs have standing to pursue
their Section 15(b) claims in federal court.
Second, the Plaintiffs alleged that Amazon unlawfully retained all
of their biometric data in violation of Section 15(a), which is
sufficiently particularized to satisfy Article III. Therefore, the
Court also possesses Article III standing over the Plaintiffs'
Section 15(a) claim.
Because the Court has subject matter jurisdiction over the
Plaintiffs' claims, Judge valderrama proceeds to address the merits
of the case, including the Defendants' Motion to Compel
Arbitration. He begins with the two adult Plaintiffs, Wilcosky and
Gunderson.
Amazon's COUs contain an arbitration agreement that is written in
English and placed under a bold and capitalized heading "Disputes,"
with key provisions in bold font. The arbitration agreement also
provides instructions regarding how to commence arbitration. The
agreement provides that the arbitration will be conducted by the
American Arbitration Association ("AAA") under its rules, including
the AAA's Supplementary Procedures for Consumer-Related Disputes,
and provides the AAA's website and phone number.
Alexa's TOUs contain a bolded section titled "Disputes/Binding
Arbitration" which states that any dispute or claim arising out of
the Agreement is subject to all terms in the COUs and contains a
hyperlink to the COUs. The Plaintiffs do not challenge the
existence or validity of the arbitration agreement. Instead, they
maintain that they did not consent to the arbitration agreement
through either the COUs or the TOUs.
Although the Plaintiffs insist that they did not assent to the
COUs, the evidence belies that contention. In support of their
Motion, the Defendants submit the Declaration of Brian Buckley,
Associate General Counsel at Amazon.com. Buckley attests that
Amazon provides its products and services, including Alexa, to
users subject to Amazon's COUs.
Notably, Wilcosky does not challenge Buckley's assertion that he
bought items from Amazon's website. Nor does Wilcosky deny that he
created an Amazon account. Instead, Wilcosky more generally states
that "Amazon has never presented him with any contract that
includes an arbitration agreement" and that he has "never seen a
contract of any kind between Amazon and him containing an
arbitration agreement." His denials that he has neither "seen" nor
been "presented with" an arbitration agreement are insufficiently
specific to demonstrate a material factual dispute for trial.
Gunderson presents no evidence to contradict Buckley's statement
about his purchases either. Therefore, as that as a result of
their purchases from Amazon, both Wilcosky and Gunderson agreed to
the COUs such that a contract was formed, Judge Valderram holds.
In addition to agreeing to the COUs to set up an Alexa device, an
Alexa user also must agree to the TOUs. The COUs provide that the
user also will be subject to the guidelines, terms, agreements
applicable to the specific Amazon Services used. For Alexa
services, those Service Terms are the publicly available TOUs.
Judge Valderrama cannot find that Wilcosky had constructive notice
that he was assenting to the TOUs based on the fact that he
"registered four Android devices with Alexa." However, even though
Wilcosky did not agree to the TOUs, he agrees with Amazon that "his
BIPA claims are still subject to arbitration because he assented to
the Amazon COUs when making purchases using Amazon's website." The
Judge finds that Plaintiffs Wilcosky and Gunderson assented to be
bound to the terms of the COUs, which includes the arbitration
agreement and class action waiver provision (and Gunderson also
assented to be bound to the terms of the TOUs, which includes the
same arbitration agreement through reference to the COUs). Having
found the existence of a valid arbitration agreement, the Judge
turns to whether the Plaintiffs' claims are within the scope of the
arbitration agreement.
Judge Valderrama finds that the COUs incorporate the AAA Rules.
Those rules provide in part that the arbitrator will have the power
to rule on his or her own jurisdiction, including any objections
with respect to the existence, scope, or validity of the
arbitration agreement or to the arbitrability of any claim or
counterclaim." The Seventh Circuit has long ago held that an
agreement of the parties to have any arbitration governed by the
rules of the AAA incorporates those rules into the agreement.
Moreover, the consensus view of federal case law is that the
incorporation by reference of the AAA Rules is clear and
unmistakable evidence of an intention to arbitrate arbitrability.
Because the AAA Rules were incorporated by reference in the COUs,
the parties delegated to the arbitrator the power to arbitrate the
scope of the arbitration agreement.
The Defendants argue that Plaintiff E.G., a minor, while not a
signatory herself to the arbitration agreement, is bound by her
legal representative's consent to arbitration and must be compelled
to arbitrate for three reasons: First, E.G. must arbitrate her
claims under principles of equitable estoppel. Second, where
claims are based on the same set of facts and inherently separable,
the court may order arbitration of claims against the party even if
that party is not a party to the arbitration agreement. Third,
E.G. is bound to arbitrate under agency principles. The Defendants
note that arbitration agreements may encompass non-signatories
under equity, and contract and agency principles. The Plaintiffs
argue that none of these exceptions apply to E.G.
As to the first argument, Judge Valderrama has no basis for
applying provisions of the COUs and TOUs without first deciding
whether non-signatory E.G. has any rights under those contracts.
The parties have not identified which state's law the Court should
use to evaluate Amazon's equitable estoppel argument and have not
engaged in a substantive choice-of-law analysis for the Court to
make such a determination. The parties must engage in a
choice-of-law analysis specific to the equitable estoppel argument.
Accordingly, the Judge directs the parties to file supplemental
briefs (i) containing a proper choice-of-law analysis and (ii)
addressing equitable estoppel under the law of the resulting
state.
Next, the Judge finds that Amazon makes no argument as to why it
applies to E.G.'s claims under Illinois law, nor does it engage in
a choice-of-law analysis positing why the Court should apply
Washington law. Regardless, the other basis under which courts
bind non-signatories when their claims are inherently inseparable
from those of a signatory are in parent-subsidiary relationships.
To state the obvious, the case does not involve a parent-subsidiary
situation, so E.G. cannot be bound by the arbitration agreement
because her claims are inherently inseparable from those of
Gunderson.
Last, Amazon has not provided any evidence that a principle-agent
relationship existed between Gunderson and E.G., much less that
Gunderson was E.G.'s agent. Therefore, agency principles do not
support the Defendants' claim that E.G., as an undisputed
non-signatory to the COUs or the TOUs, is bound by the arbitration
agreement.
For the reasons he discussed, Judge valderrama concludes that the
Plaintiffs have adequately alleged injuries in fact for all of
their BIPA claims such that there is Article III standing, and the
Court has subject matter jurisdiction over the claims and can
consider the merits of the case. He grants the Defendants' Motion
to Compel Arbitration in part and denies it in part.
Judge Valderrama finds that Wilcosky's and Gunderson's claims are
subject to arbitration. As such, Wilcosky's and Gunderson's claims
are dismissed without prejudice to those Plaintiffs pursuing those
claims in the appropriate forum. The He denies the Motion to
Compel Arbitration as to Plaintiff E.G. without prejudice.
As the movant, Amazon is directed to file a supplemental brief (i)
containing a proper choice-of-law analysis related to its equitable
estoppel argument and (ii) addressing equitable estoppel under the
law of the resulting state by Feb. 19, 2021. The Plaintiffs are to
file a response by March 5, 2021. No reply brief will be allowed
absent a request to the Court. The briefs are limited to ten pages
each. Additionally, the Judge terminates the Defendants' Motion to
Dismiss pursuant to Rules 12(b)(2) and 12(b)(6) without prejudice
with leave to refile pending the Court's decision on the
Defendants' Motion to Compel Arbitration as to Plaintiff E.G. after
review of the parties' supplemental briefs.
A full-text copy of the Court's Feb. 5, 2021 Memorandum Opinion &
Order is available at https://tinyurl.com/ya82lrdw from
Leagle.com.
AMGEN INC: Oral Argument on Plaintiffs' Appeal Set for Feb. 25
--------------------------------------------------------------
Amgen Inc. said in its Form 10-K report filed with the U.S.
Securities and Exchange Commission on February 9, 2021, for the
fiscal year ended December 31, 2020, that oral argument of the
appeal made by the plaintiffs in the consolidated purported class
action suit related to Humira(R) Biosimilar, is scheduled on
February 25, 2021.
From March to May 2019, twelve purported class actions against
Amgen, along with AbbVie Inc. and AbbVie Biotechnology Ltd., were
filed in the U.S. District Court for the Northern District of
Illinois.
The cases are captioned: UFCW Local 1500 Welfare Fund v. AbbVie
Inc., et al. (March 18, 2019); Fraternal Order of Police, Miami
Lodge 20, Insurance Trust Fund v. AbbVie Inc., et al. (March 20,
2019); Mayor and City Council of Baltimore v. AbbVie Inc., et al.
(March 22, 2019); Pipe Trades Services MN Welfare Fund v. AbbVie
Inc., et al. (March 29, 2019); St. Paul Electrical Workers' Health
Plan v. AbbVie Inc., et al. (March 29, 2019); Welfare Plan of the
International Union of Operating Engineers Locals 137, 137A, 137B,
137C and 137R v. AbbVie Inc., et al. (April 1, 2019); Law
Enforcement Health Benefits, Inc. v. AbbVie, Inc., et al. (April 9,
2019); Kentucky Laborers District Council Health and Welfare Fund
v. AbbVie, Inc., et al. (April 16, 2019); Sheet Metal Workers'
Local Union No. 28 Welfare Fund v. AbbVie, Inc., et al. (April 19,
2019); Locals 302 & 612 of The International Union of Operating
Engineers-Employers Construction Industry Health And Security Trust
Fund v. AbbVie Inc., et al. (April 25, 2019); Louisiana Health
Service & Indemnity Co., d/b/a Blue Cross and Blue Shield of
Louisiana and HMO Louisiana, Inc. v. AbbVie Inc., et al. (April 30,
2019); and Cleveland Bakers and Teamsters Health and Welfare Fund
v. AbbVie Inc., et al. (May 10, 2019).
In each of the Humira(R) Antitrust Class Actions, the plaintiffs
bring federal antitrust claims along with various state law claims
under common law and antitrust, consumer protection and unfair
competition statutes.
In each case, the plaintiffs specifically allege that AbbVie has
unlawfully monopolized the alleged market for Humira(R) and
biosimilars of Humira(R), including by creating an allegedly
unlawful so-called patent thicket around Humira(R).
In the Local 1500, Sheet Metal Workers' and Construction Industry
cases, the plaintiffs further allege that AbbVie entered into
allegedly unlawful market division agreements with Amgen and other
companies that had developed Humira(R) biosimilars, including
Bioepis, Mylan, Sandoz, Inc., Fresenius Kabi USA, LLC, Pfizer Inc.
and Momenta Pharmaceuticals, Inc., in connection with the
settlement of patent litigation relating to Humira(R), whereby
Amgen and the other defendants that have developed Humira®
biosimilars were permitted to market those products in Europe as
early as October 2018, while remaining off the market in the United
States until 2023.
In each of the Humira(R) Antitrust Class Actions other than the
Local 1500 and Construction Industry cases, the plaintiffs allege
that AbbVie and Amgen entered into an allegedly unlawful settlement
agreement under which Amgen allegedly agreed to delay its entry
into the U.S. market with AMGEVITATM (adalimumab), its Humira®
biosimilar, in exchange for an alleged promise of exclusivity as
the sole Humira® biosimilar in that market for five months,
beginning in January 2023.
In each of the Humira(R) Antitrust Class Actions, plaintiffs seek
injunctive relief, treble damages and attorney's fees on behalf of
a putative class of third-party payers and/or consumers that have
indirectly purchased, paid for or provided reimbursement for
Humira® in the United States. Defendants' responses to the first
six complaints were stayed by the court. On June 4, 2019, the
Illinois Northern District Court entered an order consolidating the
twelve purported class action cases for pre-trial purposes.
On August 9, 2019, the plaintiffs filed their consolidated
complaint, naming as defendants Amgen, along with AbbVie, Bioepis,
Sandoz, Inc. and Fresenius Kabi USA LLC.
On October 11, 2019, the defendants filed a joint motion to dismiss
the consolidated complaint (as well as brief individual motions),
challenging the legal sufficiency of the plaintiffs' allegations to
state any claim for relief under the law. On November 19, 2019,
plaintiffs filed their opposition to the motion to dismiss. On
December 20, 2019, defendants filed their reply in support of the
motion to dismiss.
On June 8, 2020, the Illinois Northern District Court issued an
order granting the motion by the defendants to dismiss the
consolidated class action complaint.
On June 29, 2020, the plaintiffs filed a status report asking the
Illinois Northern District Court to convert the dismissal to one
with prejudice. On June 30, 2020, the Illinois Northern District
Court granted the motion. On July 28, 2020, the plaintiffs filed a
notice of appeal.
On October 5, 2020, the plaintiffs-appellants filed their opening
brief to the U.S. Court of Appeals for the Seventh Circuit.
Plaintiffs-appellants amicus briefs were filed in October 2020,
including one by the Federal Trade Commission and one on behalf of
20 states, each filed on October 13, 2020. On December 21, 2020,
the defendants-appellees filed their opposition brief.
Defendants-appellees amicus briefs, including one by the Department
of Justice, were filed on December 28, 2020. The
plaintiffs-appellants' reply brief was filed on February 1, 2021,
and oral argument has been scheduled for February 25, 2021.
Amgen Inc. discovers, develops, manufactures, and delivers human
therapeutics worldwide. It offers products for the treatment of
oncology/hematology, cardiovascular, inflammation, bone health, and
neuroscience. Amgen Inc. was founded in 1980 and is headquartered
in Thousand Oaks, California.
AMGEN INC: Sensipar(R) Antitrust Class Actions Underway
-------------------------------------------------------
Amgen Inc. said in its Form 10-K report filed with the U.S.
Securities and Exchange Commission on February 9, 2021, for the
fiscal year ended December 31, 2020, that the company continues to
defend antitrust class actions related to the sales of
Sensipar(R).
From February to April 2019, four plaintiffs filed putative class
action lawsuits against Amgen and various entities affiliated with
Teva Pharmaceutical Industries Ltd. alleging anticompetitive
conduct in connection with settlements between Amgen and
manufacturers of generic cinacalcet product.
Two of those actions were brought in the Delaware District Court,
captioned UFCW Local 1500 Welfare Fund v. Amgen Inc., et al.
(February 21, 2019) (Local 1500) and Cesar Castillo, Inc. v. Amgen
Inc., et al. (February 26, 2019) (Castillo).
The third action was brought in the New Jersey District Court,
captioned Teamsters Local 237 Welfare Fund, et al. v. Amgen Inc.,
et al. (March 14, 2019) (Local 237) and the fourth action was
brought in the U.S. District Court for the Eastern District of
Pennsylvania (the Eastern Pennsylvania District Court), captioned
KPH Healthcare Services, Inc. a/k/a Kinney Drugs, Inc. v. Amgen
Inc., et al (April 10, 2019) (KPH).
Each of the lawsuits is brought on behalf of a putative class of
direct or indirect purchasers of Sensipar(R) and alleges that the
plaintiffs have overpaid for Sensipar(R) as a result of Amgen's
conduct that allegedly improperly delayed market entry by
manufacturers of generic cinacalcet products.
The lawsuits focus predominantly on the settlement among Amgen,
Watson and Teva of the parties' patent infringement litigation.
Each of the lawsuits seeks, among other things, treble damages,
equitable relief and attorneys' fees and costs.
On April 10, 2019, the plaintiff in the KPH lawsuit filed a motion
seeking to have the four lawsuits consolidated and designated as a
multidistrict litigation (MDL) in the Eastern Pennsylvania District
Court, and the plaintiff in the Local 1500 lawsuit filed a motion
seeking to have the four lawsuits, along with Cipla Ltd. v. Amgen
Inc., consolidated and designated as a MDL in the Delaware District
Court.
On July 31, 2019, the MDL panel entered an order consolidating in
the Delaware District Court the four class action lawsuits. On
September 13, 2019, the plaintiffs filed amended complaints, and on
October 15, 2019, Amgen filed its motion to dismiss both the direct
purchaser plaintiffs' consolidated class action complaint and the
indirect purchaser end payor plaintiffs' complaint.
On December 6, 2019, the plaintiffs responded to Amgen's motion to
dismiss and, on January 10, 2020, Amgen filed its response.
On February 6, 2020, the motions in the class action lawsuits were
transferred to the U.S. Magistrate Judge for the District of
Delaware (Magistrate Judge) for a recommendation. The MDL panel
certified its conditional transfer order on February 6, 2020
transferring the additional class action lawsuit brought in the
U.S. District Court for the Southern District of Florida, captioned
MSP Recovery Claims v. Amgen Inc., et al., to the Delaware District
Court.
On July 22, 2020, the Magistrate Judge issued a recommendation to
the Delaware District Court that the claims against Amgen be
dismissed but leave be given to plaintiffs to amend their
complaints. On August 5, 2020, the plaintiffs filed objections to
the Magistrate Judge's report and recommendation. On August 19,
2020, Amgen filed a response to the plaintiffs' objections.
On November 30, 2020, the District Court adopted the Magistrate
Judge's recommendation in part and denied it in part, denying
Amgen's motion to dismiss on the grounds that plaintiffs adequately
alleged reverse payment claims but granted Amgen's motion to
dismiss with respect to the other Federal antitrust claims.
On December 23, 2020, Teva, Watson and Actavis filed a motion for
interlocutory appeal and for a stay pending appeal and Amgen filed
its joinder (the 1292 Motion).
On January 5, 2021, a joint status report was filed advising the
Delaware District Court that the defendants are still considering
whether to withdraw the 1292 Motion and plaintiffs' offer to stay
discovery, pending further rulings on motions to dismiss the
amended complaints.
On January 19, 2021, a joint status report was filed pursuant to
the Delaware District Court's January 6, 2021 order along with a
stipulation to defer the 1292 Motion until after rulings on the
amended complaints.
Amgen Inc. discovers, develops, manufactures, and delivers human
therapeutics worldwide. It offers products for the treatment of
oncology/hematology, cardiovascular, inflammation, bone health, and
neuroscience. Amgen Inc. was founded in 1980 and is headquartered
in Thousand Oaks, California.
ARTHUR J. GALLAGHER: 9th Cir. Affirms Dismissal of Class Suit
-------------------------------------------------------------
Arthur J. Gallagher & Co. said in its Form 10-K report filed with
the U.S. Securities and Exchange Commission on February 8, 2021,
for the fiscal year ended December 31, 2020, that the U.S. Court of
Appeals for the Ninth Circuit Court has affirmed a trial court
ruling dismissing a class action lawsuit.
On December 7, 2018, a class action lawsuit was filed against the
company, Artex Risk Solutions, Inc. and other defendants in the
United States District Court for the District of Arizona.
The named plaintiffs are micro-captives and related entities and
owners who had Internal Revenue Service (IRS) Section 831(b) tax
benefits disallowed by the IRS.
The complaint alleges that the defendants defrauded the plaintiffs
by marketing and managing micro‑captives with the knowledge that
the captives did not constitute bona fide insurance and thus would
not qualify for tax benefits.
The complaint does not specify the amount of damages sought by the
named plaintiffs.
On August 5, 2019, the trial court granted the defendants' motion
to compel arbitration and dismissed the class action lawsuit.
Plaintiffs appealed this ruling to the United States Court of
Appeals for the Ninth Circuit.
On September 9, 2020, the Ninth Circuit Court affirmed the ruling
of the trial court dismissing the class action lawsuit.
Arthur J. Gallagher said, "We will continue to defend against the
lawsuit vigorously. Litigation is inherently uncertain, however,
and it is not possible for us to predict the ultimate outcome of
this matter and the financial impact to us, nor are we able to
reasonably estimate the amount of any potential loss in connection
with this lawsuit."
No further updates were provided in the Company's SEC report.
Arthur J. Gallagher & Co., together with its subsidiaries, provides
insurance brokerage, consulting, and third party claims settlement
and administration services to entities in the United States and
internationally. The company offers its services through a network
of correspondent insurance brokers and consultants. Arthur J.
Gallagher & Co. was founded in 1927 and is headquartered in Rolling
Meadows, Illinois.
AUSTRALIA: Home Affairs Dep't Must Compensate Asylum Seekers
------------------------------------------------------------
Cameron Abbott, Esq., Warwick Andersen, Esq., Michelle Aggromito,
Esq., and Max Evans, Esq., of K&L Gates, in an article for The
National Law Review, report that as a result of a recent class
action, the Department of Home Affairs has been ordered by the
Australian Information Commissioner, Angelene Falk, to pay
compensation to asylum seekers after the Department was found to
have interfered with the privacy of 9,251 detainees.
According to a media release from the Office of the Australian
Information Commissioner (OAIC), the relevant breach stemmed from
February 2014, where the Department published on its website a
"Detention Report", which had embedded within it a Microsoft Excel
spreadsheet containing the personal information (including full
names, date of birth and period of immigration detention) of 9,258
individuals who were in immigration detention at that time.
Following a class action in which 1,297 participating members
provided submissions to the OAIC, the OAIC undertook an assessment
and concluded there was no reason to dispute the findings from the
Commissioner's initiated investigation and own motion investigation
report that:
1. the Department had failed to put in place reasonable security
safeguards to protect the personal information that it held against
loss, unauthorised access, use, modifications or disclosure and
against other misuse; and
2. the publication of personal information of the listed
individuals was an unauthorised disclosure, in contravention of the
then Information Privacy Principles.
Compensation will be payable to participating members who have
demonstrated that they have suffered loss or damage as a result of
the data breach, and range from $500 to more than $20,000 based on
severity of the impact. Commissioner Falk has raised the importance
of the impact of this case in being "the first representative
action where the OAIC has found compensation for non-economic loss
suffered by individuals affected by the data breach".
As yet there has been no guidance provided as to how these sums are
assessed which leaves a lot of uncertainty in these situations.
[GN]
BAYADA HOME: 10th Cir. Reverses Summary Judgment in Kennett Suit
----------------------------------------------------------------
In the case, MICHELE KENNETT, individually and on behalf of the
Rule 23 Class, Plaintiff-Appellee v. BAYADA HOME HEALTH CARE, INC.,
Defendant-Appellant, Case No. 19-1004 (10th Cir.), the U.S. Court
of Appeals for the Tenth Circuit reversed the district court's
order denying the Defendant-Appellant's motion for summary judgment
and granting Plaintiff-Appellee Kennett's cross-motion for summary
judgment.
The parties' dispute centers on the scope of Colorado's
wage-and-hour regulations. Under Colorado's Minimum Wage Order,
employers must pay their employees time-and-a-half wages for
overtime work, with some job classifications exempted from the
overtime requirement. The scope of one of those exemptions--the
"companionship exemption"--is the subject of the case. Under the
companionship exemption, employers need not pay overtime to
"companions, casual babysitters, and domestic employees employed by
households or family members to perform duties in private
residences."
Bayada is a healthcare company that provides in-home nursing
services to its clients. Ms. Kennett worked for Bayada as a Home
Health Aide ("HHA"). It is undisputed that Ms. Kennett and her
fellow HHAs were "companions" under Colorado law and that Bayada
did not pay them overtime.
Ms. Kennett filed a class action complaint against Bayada on behalf
of herself and other HHAs for allegedly violating the Wage Order by
failing to pay overtime. Bayada moved for summary judgment on the
ground that the HHAs fall under the Wage Order's companionship
exemption for overtime pay. Ms. Kennett cross-moved for summary
judgment on the basis that the HHAs do not fall under the
companionship exemption.
The district court denied Bayada's motion and granted Ms. Kennett's
cross-motion. In reaching its decision, the district court held
that the "only grammatically sound reading of the statute dictates
that the household modifier is equally applicable to the
antecedents 'companions' and 'casual babysitters' as it is to
'domestic employees.'" It also found that its holding was
supported by the series-qualifier canon, and that the Colorado
Division of Labor's contrary interpretation of the regulation was
not entitled to any deference. Consequently, the district court
held that the Wage Order's companionship exemption did not apply to
Bayada's HHAs because they were not employed directly by a
household or family member. Bayada now appeals from this
decision.
The question before the Court is whether the phrase "employed by
households or family members to perform duties in private
residences" ("household modifier") modifies only "domestic
employees" or all three occupations--that is, also includes
"companions" and "casual babysitters." If the former (i.e.,
modifies only "domestic employees")--the reading Bayada
advances--then all companions, irrespective of the nature of their
employer, are exempt from the overtime requirement. If the latter
(i.e., modifies all three occupations)--the reading Ms. Kennett
advances--then only companions employed directly by households or
family members, as opposed to companions employed by all types of
employers, including third-party employers like Bayada, are
exempt.
Unfortunately for Ms. Kennett, the Tenth Circuit resolved this
issue in a recent, published decision, Jordan v. Maxim Healthcare
Services, Inc., wherein it concluded that "the companionship
exemption applies to all companions--including those employed by
third-party employers." The Court is bound by this decision, which
governs all salient issues in this case. Accordingly, exercising
jurisdiction under 28 U.S.C. Section 1291, it reversed the district
court's judgment and remanded for further proceedings consistent
with its Order and Judgment.
A full-text copy of the Court's Feb. 9, 2021 Order & Judgment is
available at https://tinyurl.com/yhbxru5n from Leagle.com.
BED BATH: Court Grants Bid to Dismiss Turnier With Leave to Amend
-----------------------------------------------------------------
In the case, ROBERT TURNIER, Plaintiff v. BED BATH & BEYOND INC.,
Defendant, Case No. 3:20-cv-00288-L-MSB (S.D. Cal.), Judge M. James
Lorenz of the U.S. District Court for the Southern District of
California grants the Defendant's motion to dismiss with leave to
amend.
The Plaintiff filed the action in state court. The Defendant
removed it to federal court. The Court has subject matter
jurisdiction under 28 U.S.C. section 1332.
The Defendant is a New York corporation that markets and sells
household merchandise. It sells merchandise in its stores and
online. For 29 dollars a year, customers can enroll in Beyond +,
which offers them a 20 percent discount on all purchases and free
shipping. Beyond + automatically renews.
In August 2018, the Plaintiff purchased an item from the Defendant
on its website. Although there is no allegation the Plaintiff
enrolled in Beyond + then, he was charged for it in August 2019.
The Plaintiff contends the Defendant did not properly disclose that
Beyond + would automatically renew each year.
The Plaintiff alleges four state law claims against the Defendant:
(i) First Claim: California's Automatic Renewal Law ("ARL"), (ii)
Second Claim: California's Consumer Legal Remedies Act ("CLRA"),
(iii) Third Claim: California's Unfair Competition Law ("UCL"), and
(iv) Fourth Claim: Unjust Enrichment. They all relate to its
purported failure to adequately disclose Beyond +'s automatic
renewal term.
Pending before the Court in the consumer class action is the
Defendant's motion to dismiss.
The Defendant argues the first claim is subject to dismissal
because there is no private cause of action under ARL. The
Plaintiff, in the opposition, contends the first claim is brought
under California's False Advertising Law ("FAL"), not ARL.
However, the Complaint appears to show the first claim is brought
under ARL itself. Judge Lorenz therefore dismisses the first
claim. He grants the Plaintiff leave to allege a claim under FAL
for the purported ARL violation.
Next, the Defendant argues there are insufficient factual
allegations to support the second claim. In general, CLRA
prohibits businesses from engaging in certain unlawful acts or
practices, which are set forth as subsections under California
Civil Code section 1770. The Plaintiff contends the Defendant
violated five subsections.
First, the Plaintiff contends the Defendant violated subsection
(a)(5), which prohibits a business from "representing that goods or
services have characteristics that they do not have. Second, he
contends the Defendant violated subsection (a)(9), which prohibits
a business from "advertising goods or services with intent not to
sell them as advertised. Third, the Plaintiff contends the
Defendant violated subsection (a)(13), which prohibits a business
from making false or misleading statements of fact concerning
reasons for, existence of, or amounts of, price reductions.
Fourth, he contends the Defendant violated subsection (a)(14),
which prohibits a business from representing that a transaction
confers or involves rights, remedies, or obligations that it does
not have or involve, or that are prohibited by law. Lastly, the
Plaintiff contends it violated subsection (a)(17), which prohibits
a business from representing that the consumer will receive a
rebate, discount, or other economic benefit, if the earning of the
benefit is contingent on an event to occur subsequent to the
consummation of the transaction.
Overall, the Plaintiff fails to state a CLRA claim. Judge Lorenz
finds that (i) the Plaintiff does not allege the Defendant made a
representation to him that Beyond + did not automatically renew,
(ii) the Plaintiff does not allege Beyond + did not cost that
amount or the benefits were not as advertised, (iii) the Plaintiff
does not allege the Defendant reduced or discounted Beyond +'s
price -- which is the product or service at issue in the case, (iv)
there is nothing to suggest the Defendant represented to the
Plaintiff that it had a right related to Beyond +, and (v) the
Plaintiff does not allege he had to purchase (through the automatic
renewal) another year to enjoy the benefits during the year he paid
for it.
Judge Lorenz, therefore, dismisses the second claim. In the
amended complaint, if any, the Plaintiff should set forth the
specific factual allegations that support each CLRA subsection he
relies on.
The Plaintiff asserts a claim under UCL related to the Defendant's
purported failure to comply with ARL. The Defendant raises four
arguments as to why the Court should dismiss the claim. First, it
argues ARL does not apply to Beyond + because it is not a
"subscription," which is what the statutory requirements apply to.
Next, the Defendant argues it satisfied the ARL requirements.
Third, it also argues the Plaintiff fails to allege the ARL
violation caused his injury. Lastly, the Defendant argues the
Plaintiff fails to allege an entitlement to equitable relief.
Judge Lorenz finds that (i) the allegations in the case demonstrate
that the use of automatic renewal terms is not unique to magazine
subscriptions, (ii) the Plaintiff has plausibly alleged the
Defendant did not comply with section 17602(a)(1), (iii) the
Complaint does not contain sufficient factual allegations to
plausibly show causation, and (iv) the Complaint contains
insufficient allegations to support an injunction. For all these
reason, the Judge dismisses the UCL claim.
The Plaintiff alleges an unjust enrichment claim against the
Defendant. However, under California law, there is no "standalone
cause of action for 'unjust enrichment.'" And it appears there was
an express contract related to the conduct at issue. The claim is
therefore subject to dismissal. Hence, Judge Lorenz dismisses the
fourth claim.
The Defendant requests judicial notice of terms and conditions that
purportedly relate to Beyond +. The Judge's ruling does not rely
on that document. Therefore, he denies the request.
The Plaintiff might cure the deficiencies if given leave to amend.
Judge Lorenz, therefore, grants his request for leave.
For the reasons he stated, Judge Lorenz grants the Defendant's
motion to dismiss with leave to amend. The Plaintiff has until
Feb. 22, 2021 to file an amended complaint. If he files that, the
Defendant will file a response to it within the time set forth
under Federal Rule of Civil Procedure 15(a)(3).
A full-text copy of the Court's Feb. 5, 2021 Order is available at
https://tinyurl.com/3is2n0l7 from Leagle.com.
BEND MEMORIAL: Class Certification Bid Filing Due Sept. 14
----------------------------------------------------------
In the class action lawsuit captioned as Fulkerson, et al., v. Bend
Memorial Clinic, et al., Case No. 6:20-cv-01579 (D. Ore.), the Hon.
Judge Ann L. Aiken entered an order granting stipulated motion for
extension of discovery & PTO deadlines:
-- joint alternate dispute resolution report is due by April
9, 2021;
-- pretrial order is due by April 9, 2021;
-- class certification discovery shall be completed by May
15, 2021;
-- The Plaintiffs' and Defendants' expert reports as to class
certification shall be filed by June 21, 2021;
-- depositions of class certification experts shall be
completed by Aug. 30, 2021;
-- The Plaintiffs' motion for class certification/Defendants'
motion for summary judgment shall be filed by Sept. 14,
2021;
-- The Defendants' Memorandum in Opposition to Class
Certification/Plaintiffs' Memorandum in Opposition to
Summary Judgment shall be filed by Oct. 19, 2021;
-- The Plaintiffs' Reply Memorandum in support of class
certification/Defendants' Reply to Motion for Summary
Judgment shall be filed by 11/9/2021;
-- Non-dispositive motions, excluding trial and trial related
motions shall be filed by Dec. 28, 2021; and
-- Dispositive Motions are due by Feb. 15, 2022.
The suit alleges violation of the Americans with Disabilities Act.
Formed in 2018 through a strategic partnership between Bend
Memorial Clinic (BMC) and Summit Health Management, Summit Medical
Group Oregon -- Bend Memorial Clinic includes more than 120
providers with over 30 specialties and services including urgent
care, primary care, specialty care, imaging and clinical
services.[CC]
BIT DIGITAL: Robbins Geller Reminds Investors of March 22 Deadline
------------------------------------------------------------------
Robbins Geller Rudman & Dowd LLP on Feb. 8 disclosed that a class
action lawsuit has been filed in the Southern District of New York
on behalf of purchasers of Bit Digital, Inc. (NASDAQ:BTBT)
securities between December 21, 2020 and January 8, 2021, inclusive
(the "Class Period"). The case is captioned Pauwels v. Bit Digital,
Inc., No. 21-cv-00515, and is assigned to Judge Andrew L. Carter,
Jr. The Bit Digital class action lawsuit charges Bit Digital 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 Bit Digital securities during the Class
Period to seek appointment as lead plaintiff in the Bit Digital
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 Bit Digital class action lawsuit. The lead
plaintiff can select a law firm of its choice to litigate the Bit
Digital class action lawsuit. An investor's ability to share in any
potential future recovery of the Bit Digital class action lawsuit
is not dependent upon serving as lead plaintiff. If you wish to
serve as lead plaintiff of the Bit Digital class action lawsuit or
have questions concerning your rights regarding the Bit Digital
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. Lead
plaintiff motions for the Bit Digital class action lawsuit must be
filed with the court no later than March 22, 2021.
Bit Digital is a holding company that purports to engage in the
bitcoin mining business through its wholly-owned subsidiaries in
United States and Hong Kong.
The Bit Digital class action lawsuit alleges that, throughout the
Class Period, defendants made false and/or misleading statements
and/or failed to disclose: (1) that Bit Digital overstated the
extent of its bitcoin mining operation; and (2) that, as a result
of the foregoing, defendants' positive statements about Bit
Digital's business, operations, and prospects were materially
misleading and/or lacked a reasonable basis.
On January 11, 2021, J Capital Research issued a research report
alleging, among other things, that Bit Digital operates "a fake
crypto currency business" "designed to steal funds from investors."
Though Bit Digital claims "it was operating 22,869 bitcoin miners
in China," J Capital alleged that "is simply a lie" and stated that
"we verified with local governments supposedly hosting the [Bit
Digital] mining operation that there are no bitcoin miners there."
On this news, Bit Digital's stock price fell approximately 25%,
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.
Contacts:
Robbins Geller Rudman & Dowd LLP
Michael Albert, 800-449-4900
malbert@rgrdlaw.com [GN]
BLACKJEWEL LLC: Settles Wyoming Coal Miners' Class Action Lawsuit
-----------------------------------------------------------------
Camille Erickson, writing for Casper Star Tribune, reports that a
tentative multimillion dollar settlement reached in a class-action
lawsuit involving some 600 Wyoming coal miners will go before a
judge for approval early next month.
Coal miners filed the lawsuit against bankrupt coal firm Blackjewel
in 2019, after the company went bankrupt and abruptly closed dozens
of mines across the country, including two of the world's largest
located in Wyoming.
Hundreds of Wyoming workers were sent home without notice or
information about their employer's future.
Together, approximately 1,700 Blackjewel coal miners from across
the country participated in the class-action lawsuit, alleging
Blackjewel violated federal labor law.
By failing to notify or compensate the workers before suddenly
closing down its mines, Blackjewel violated the Worker Adjustment
and Retraining Notification Act, or WARN Act, according to the
lawsuit.
Then-CEO Jeffrey Hoops did not give sufficient written notice of
the layoffs, nor did he offer 60 days of wages, the lawsuit states.
Under the WARN Act, the workers would legally be entitled to wages
and benefits.
A tentative $17 million settlement was reached and unsealed in
September, but the judge has yet to approve the agreement.
If endorsed by the court, the class-action settlement would mean
the miners could receive 60% of about two months of their wages, in
addition to the equivalent of up to eight days of work, according
to court documents.
"The legal team, we think it's a good settlement," Ned Pillersdorf,
the attorney representing the 1,700 miners, told the Star-Tribune
on Feb. 8.
But there's a catch.
Workers won't necessarily see checks any time soon, even if the
settlement is approved. That's because it's unclear how much money
will remain in Blackjewel's estate at the end of the day to dole
out to the workers, not to mention the hundreds of other creditors
the defunct company owes money to.
"The bottom line is, if you're a wage earner in bankruptcy court,
pardon my language, you get screwed," Pillersdorf said.
Though the pair of Wyoming coal mines have since reopened under new
ownership, attorneys, creditors and workers continue to negotiate
numerous outstanding legal issues in federal bankruptcy court.
"This is probably the most complex bankruptcy in the history of
bankruptcy court," Pillersdorf said. "It's really complicated
litigation."
A hearing will take place on the class-action lawsuit at 7:30 a.m.
Mountain Time on March 3. [GN]
BOARDWALK PIPELINE: Mishal & Berger Putative Class Suit Underway
----------------------------------------------------------------
Boardwalk Pipeline Partners, LP said in its Form 10-K report filed
with the U.S. Securities and Exchange Commission on February 9,
2021, for the fiscal year ended December 31, 2020, that the company
continues to defend a purported class action suit initiated by
Tsemach Mishal and Paul Berger.
On May 25, 2018, plaintiffs Tsemach Mishal and Paul Berger (on
behalf of themselves and the purported class, Plaintiffs) initiated
a purported class action in the Court of Chancery of the State of
Delaware against the following defendants: the Company, Boardwalk
GP, LP, Boardwalk GP, LLC and Boardwalk Pipelines Holding Corp.
(BPHC), regarding the potential exercise by Boardwalk GP of its
right to purchase the issued and outstanding common units of the
Company not already owned by Boardwalk GP or its affiliates
(Purchase Right).
On June 25, 2018, Plaintiffs and Defendants entered into a
Stipulation and Agreement of Compromise and Settlement, subject to
the approval of the Court (the Proposed Settlement). Under the
terms of the Proposed Settlement, the lawsuit would be dismissed,
and related claims against the Defendants would be released by the
Plaintiffs, if BPHC, the sole member of the general partner of
Boardwalk GP, elected to cause Boardwalk GP to exercise its
Purchase Right for a cash purchase price, as determined by the
Company's Third Amended and Restated Agreement of Limited
Partnership, as amended, and gave notice of such election as
provided in the Limited Partnership Agreement within a period
specified by the Proposed Settlement.
On June 29, 2018, Boardwalk GP elected to exercise the Purchase
Right and gave notice within the period specified by the Proposed
Settlement.
On July 18, 2018, Boardwalk GP completed the purchase of the
Company's common units pursuant to the Purchase Right.
On September 28, 2018, the Court denied approval of the Proposed
Settlement. On February 11, 2019, a substitute verified class
action complaint was filed in this proceeding.
The Defendants filed a motion to dismiss, which was heard by the
Court in July 2019. In October 2019, the Court ruled on the motion
and granted a partial dismissal, with certain aspects of the case
proceeding to trial.
The case is set for trial in February 2021.
Boardwalk Pipeline Partners, LP, through its subsidiaries, owns and
operates integrated natural gas and natural gas liquids and other
hydrocarbons (NGLs) pipeline and storage systems in the United
States. The company operates natural gas pipeline systems in the
Gulf Coast region, Oklahoma, and Arkansas, as well as the
Midwestern states of Tennessee, Kentucky, Illinois, Indiana, and
Ohio; and NGLs pipelines and storage facilities in Louisiana and
Texas. Boardwalk Pipeline Partners, LP was founded in 2005 and is
headquartered in Houston, Texas. Boardwalk Pipeline Partners, LP is
a subsidiary of Boardwalk Pipelines Holding Corp.
BP PLC: Dismissal of Iames & Alvarado from Oil Spill Suit Affirmed
------------------------------------------------------------------
In the case, In re: Deepwater Horizon. Sergio Alvarado,
Plaintiff-Appellant v. BP Exploration & Production, Incorporated;
BP America Production Company; BP, P.L.C, Defendants-Appellees,
Sandra A. Iames, Plaintiff-Appellant v. BP Exploration &
Production, Incorporated; BP America Production Company; BP,
P.L.C.; Transocean Holdings, L.L.C.; Transocean Deepwater,
Incorporated; Transocean Offshore Deepwater Drilling, Incorporated;
Transocea, Limited; Ttiton Asset Leasing GMBH; Anadarko Petroleum
Corporation Company; Anadarko E&P Company, L.P.; Halliburton Energy
Services, Incorporated, Defendants-Appellees, Sheri Allen Dorgan,
Plaintiff-Appellant v. BP, P.L.C.; BP Exploration & Production,
Incorporated; BP America Production Company, Defendants-Appellees,
Brian Gortney, Plaintiff-Appellant v. BP Products North America,
Incorporated; BP America Incorporated; BP, P.L.C,
Defendants-Appellees, Sergio Valdivieso, Plaintiff-Appellant v. BP,
P.L.C.; BP Products North America, Incorporated; BP America,
Incorporated, Defendants-Appellees, Case No. 19-30440 (5th Cir.),
the U.S. Court of Appeals for the Fifth Circuit:
(i) affirmed the district court's dismissals with prejudice
of the claims of Iames and Alvarado, and
(ii) reversed and remanded the dismissals of Dorgan, Gortney,
and Valdivieso.
The case presents another in the line of the cases related to the
Deepwater Horizon oil spill. Four Appellants--Iames, Dorgan,
Gortney, and Valdivieso--seek reversal of dismissals with prejudice
for failure to comply with orders of the multidistrict litigation
judge to file particular information about their claims. Another
Appellant--Alvarado--seeks reversal of his dismissal with prejudice
for failure to timely opt out of the settlement class.
Thousands of claims arose out of the Deepwater Horizon oil
spill--including the five at issue. The MDL panel consolidated
common claims before the district court, creating several "Pleading
Bundles." The claims here were part of the B3 bundle claims for
cleanup and personal injury. To facilitate the efficient resolution
of claims, the district court in turn issued a series of pretrial
orders (PTOs).
The appeal concerns PTO 66, issued on April 9, 2018, requiring
remaining B3 Plaintiffs to "provide more particularized information
regarding their claims" to help "the Court and the parties to
better understand the nature and scope of the injuries, damages,
and causation alleged." It required remaining B3 Plaintiffs to
complete, sign, and serve on counsel for BP and the Plaintiffs'
Steering Committee a "Particularized Statement of Claim" ("PSOC")
form by July 9, 2018. The order warned that the Plaintiffs who
failed to comply may be required to show cause to this Court why
his, her, or its claims should not be dismissed with prejudice.
PTO 66 further noted that some remaining B3 Plaintiffs appeared to
be members of the Medical Benefits Class Action Settlement Class,
an earlier-approved settlement. Members of the Medical Settlement
Class were given the opportunity to opt out of the settlement and
pursue ordinary litigation by submitting a written request no later
than Nov. 1, 2012. It further directed BP and the settlement's
claims administrator to determine whether any remaining B3
Plaintiffs were members of the Medical Settlement Class.
On Sept. 20, 2018, the district court issued the PTO 66 Show Cause
Order, identifying the Plaintiffs who either failed to respond to
PTO 66 or whose response was materially deficient, including the
Plaintiffs who still appeared to be members of the settlement
class. The court ordered these Plaintiffs to show cause in writing
on Oct. 11, 2018 why the Court should not dismiss his/her/its B3
claim(s) with prejudice for failing to comply with the requirements
of PTO 66.
On Jan. 31, 2019, the district court issued the PTO 66 Compliance
Order, dismissing with prejudice B3 claims that were deemed
noncompliant with PTO 66, as well as those barred by settlement,
including the claims of the Appellants, and denied their motions
for reconsideration.
All five now seek reinstatement of their claims.
The Fifth Circuit first considers whether the district court erred
in dismissing the claims of Iames, Dorgan, Gortney, and Valdivieso
for their noncompliance with PTO 66 before turning to Alvarado's
challenge to the district court's dismissal of his claims for
failure to timely opt out of the Medical Settlement Class.
Iames makes several arguments contesting the dismissal of her case
with prejudice. First, she argues that PTO 66 should be treated as
a discovery order rather than a docket management order. Second,
she argues that the record does not show "delay or contumacious
conduct" on her part, and, in any event, "lesser sanctions" would
have served "the best interests of justice." T hird, she argues
that no aggravating factors in favor of dismissal are present.
First, contrary to Iames's claim, the Fifth Circuit concludes that
PTO 66 is a case-management order. Second, the record shows a
clear record of delay by Iames. Third, while it agrees with Iames
that there are likely no aggravating factors present in the case,
this alone does not warrant overturning a dismissal with prejudice.
Because the record shows a clear record of delay and lesser
sanctions would not have served the best interests of justice, the
Appellate Court concludes that the district court did not abuse its
discretion in dismissing Iames' claims with prejudice.
Unlike Iames, Plaintiffs Dorgan, Valdivieso, and Gortney responded
to the show cause order and submitted their PSOC forms. Because of
their ultimate compliance with PTO 66, they argue that their claims
were dismissed without a clear record of "delay or contumacious
conduct." Moreover, they contend that no aggravating factors
counseling in favor of dismissal with prejudice are present.
The Fifth Circuit agrees. After Dorgan, Valdivieso, and Gortney
were alerted to their mistake by the district court's show cause
order, they timely responded and came into compliance with PTO 66
by submitting their PSOC forms. Ultimately, all the three
Plaintiffs came into compliance with PTO 66 a little over three
months after its deadline and about a month after receiving a
warning via the show cause order. It does not rise to the level of
delay that justifies dismissal with prejudice. Additionally,
Dorgan, Valdivieso, and Gortney explained why they failed to timely
comply with PTO 66 and included corroborating evidence.
Alvarado challenges the district court's dismissal of his claims
for failure to opt out of the Medical Settlement Class. Although
Alvarado concedes that he is member of the settlement class and
failed to opt out, he argues that his claims should be allowed to
proceed because his failure to opt out constituted excusable
neglect.
The Fifth Circuit concludes that the district court did not abuse
its discretion in finding that Alvarado's failure to opt out was
inexcusable. BP also offers the overarching contention that it
would be prejudiced by a late opt out because the opt-out deadline
was a negotiated term of the settlement. The Court agrees that the
interest in finality through settlement, while not determinative,
also weighs against allowing Alvarado's late opt out.
For these reasons, the Fifth Circuit affirmed the district court's
judgment dismissing Iames and Alvarado's claims. It reversed the
dismissal of the claims of Dorgan, Gortney, and Valdivieso, and
remanded them for further proceedings consistent with its Opinion.
A full-text copy of the Court's Feb. 9, 2021 Order is available at
https://tinyurl.com/uvmxpmxs from Leagle.com.
BRISTOL-MYERS: Appeal in CheckMate-026 Related Suit Pending
-----------------------------------------------------------
Bristol-Myers Squibb Company said in its Form 10-K report filed
with the U.S. Securities and Exchange Commission on February 10,
2021, for the fiscal year ended December 31, 2020, that the appeal
on the district court's dismissal of the putative securities class
action suit related to the CheckMate-026 clinical trial in lung
cancer, is still pending.
Since February 2018, two separate putative class action complaints
were filed in the U.S. District for the Northern District of
California and in the U.S. District Court for the Southern District
of New York against the company (BMS), BMS's Chief Executive
Officer, Giovanni Caforio, BMS's Chief Financial Officer at the
time, Charles A. Bancroft and certain former and current executives
of BMS.
The case in California has been voluntarily dismissed.
The remaining complaint alleges violations of securities laws for
BMS's disclosures related to the CheckMate-026 clinical trial in
lung cancer.
In September 2019, the Court granted BMS's motion to dismiss, but
allowed the plaintiffs leave to file an amended complaint. In
October 2019, the plaintiffs filed an amended complaint.
BMS moved to dismiss the amended complaint. In September 2020, the
Court granted BMS's motion to dismiss with prejudice.
The plaintiffs appealed the Court's decision in October 2020.
No further updates were provided in the Company's SEC report.
Bristol-Myers Squibb Company discovers, develops, licenses,
manufactures, markets, distributes, and sells biopharmaceutical
products worldwide. Bristol-Myers Squibb Company was founded in
1887 and is headquartered in New York, New York.
BRISTOL-MYERS: Continues to Defend Abilify-Related Suits
--------------------------------------------------------
Bristol-Myers Squibb Company said in its Form 10-K report filed
with the U.S. Securities and Exchange Commission on February 10,
2021, for the fiscal year ended December 31, 2020, that the company
and Otsuka Pharmaceutical Co., Ltd continue to defend class action
suits in Quebec and Ontario related to Abilify.
The company (BMS) and Otsuka are co-defendants in product liability
litigation related to Abilify.
Plaintiffs allege Abilify caused them to engage in compulsive
gambling and other impulse control disorders. There have been over
2,500 cases filed in state and federal courts and additional cases
are pending in Canada.
The Judicial Panel on Multidistrict Litigation consolidated the
federal court cases for pretrial purposes in the U.S. District
Court for the Northern District of Florida.
In February 2019, BMS and Otsuka entered into a master settlement
agreement establishing a proposed settlement program to resolve all
Abilify compulsivity claims filed as of January 28, 2019 in the MDL
as well as various state courts, including California and New
Jersey.
To date, approximately 2,700 cases, comprising approximately 3,900
plaintiffs, have been dismissed based on participation in the
settlement program or failure to comply with settlement-related
court orders.
In the U.S., less than 20 cases remain pending on behalf of
plaintiffs, who either chose not to participate in the settlement
program or filed their claims after the settlement cut-off date.
There are ten cases pending in Canada (four class actions, six
individual injury claims). Out of the ten cases, only three are
active (the class actions in Quebec and Ontario and one individual
injury claim).
Both class actions have now been certified and will proceed
separately, subject to a pending appeal of the Ontario class
certification decision.
Bristol-Myers Squibb Company discovers, develops, licenses,
manufactures, markets, distributes, and sells biopharmaceutical
products worldwide. Bristol-Myers Squibb Company was founded in
1887 and is headquartered in New York, New York.
BROTHERS AND SON: Permit to Send Notice to Class of Servers Sought
------------------------------------------------------------------
In the class action lawsuit captioned as THERESA LOPEZ-GONZALES,
individually and on behalf of all others similarly situated, v.
BROTHERS AND SON, A PARTNERSHIP D/B/A THE PLAZA RESTAURANT; MARTIN
RAMOS; AND JOSE RAMOS, Case No. 2:20-cv-00061-Z-BQ (N.D. Tex.), the
Plaintiff asks the Court to enter an order:
1. granting permit notice to the similarly situated putative
class members, and authorizing counsel for the Plaintiffs
to send the proposed notices to the following class of
similarly situated individuals defined as:
"all individuals who worked as a server at any of the
Defendants' restaurants located in Texas during the three
year period preceding the filing of this lawsuit and who
were paid a direct cash wage of less than $7.25 per hour;"
and
2. granting award the relief to which the Plaintiffs may be
justly entitled.
This action also challenges the company-wide policy of the
Defendants' that utilizes hundreds of servers to perform both
tipped work and non-tipped job duties at a rate of $2.13 per hour
throughout its restaurant locations in Texas.
The Defendants' practice of paying its servers $2.13 per hour the
time its servers spent performing non-tipped work is a violation of
the Fair Labor Standards Act's (FLSA'S) minimum wage provisions.
The Plaintiffs are also subject to unlawful deductions for
mandatory uniforms and other business-related items, such as
uniforms, pens, check presenters, server mistakes (i.e. cash
shortages or wrong ordered food), and credit card processing fees,
the complaint says.
Theresa Lopez-Gonzales and the Opt-in Plaintiffs worked as servers
at The Plaza Restaurants in Texas. Ms. Lopez-Gonzales says that
they were all paid a direct subminimum hourly wage of less than
$7.25 per hour and, in violation of the FLSA, were illegally
required to contribute a portion of their tips to a tip pool that
was not distributed solely among other customarily and regularly
tipped employees; required to perform non-tipped work unrelated to
their tipped occupation (i.e., “dual jobs”) before, during, and
at the end of their shifts at a rate of $2.13 per hour; required to
perform non-tipped work that exceeded 20% of their time worked
during each workweek at a rate of $2.13 per hour; and required to
pay for mandatory uniforms and other business-related items.
The Defendants own and operate a restaurant enterprise commonly
known as The Plaza Restaurant with several restaurant locations
throughout Texas.
A copy of the Court's order the Plaintiff's motion to certify class
dated Feb. 5, 2020 is available from PacerMonitor.com at
https://bit.ly/3aieKWr at no extra charge.[CC]
Attorneys for the plaintiffs and collective members, are:
Drew N. Herrmann, Esq.
Pamela G. Herrmann, Esq.
HERRMANN LAW, PLLC
801 Cherry St., Suite 2365
Fort Worth, TX 76102
Telephone: (817) 479-9229
Facsimile: (817) 887-1878
E-mail: drew@herrmannlaw.com
pamela@herrmannlaw.com
CALIFORNIA: Bids to Dismiss Amended Culinary Studios Suit Granted
-----------------------------------------------------------------
In the case, CULINARY STUDIOS, INC., et al., Plaintiffs v. GOVERNOR
GAVIN NEWSOM, et al., Defendants, Case No. 1:20-CV-1340 AWI EPG
(E.D. Cal.), Senior District Judge Anthony W. Ishii of the U.S.
District Court for the Eastern District of California granted the
Defendants' motions to dismiss.
The case involves challenges to restrictions placed on businesses
by Gov. Newsom and various state agencies, the City of Fresno and
former Fresno Mayor Lee Brand, and the County of Fresno in response
to Covid 19. The case is brought primarily by restaurants but
includes other businesses such as fitness centers. The Plaintiffs
intend for the matter to be a class action.
The First Amended Complaint ("FAC") brings suit against Gov. Newsom
and California Attorney General Xavier Becerra and former City of
Fresno Mayor Lee Brand in their official capacities, the State of
California, the California Department of Alcoholic Beverages
Control ("CABC"), the County of Fresno, the County of Fresno
Department of Public Health, and the City of Fresno.
In relevant part, the FAC alleges that in March 2020, President
Trump proclaimed a state of emergency from Covid 19. On March 4,
2020, Gov. Newsom issued a state of emergency due to Covid 19. On
March 19, 2020, Gov. Newsom issued executive order N-33-20 which
inter alia mandated that all individuals in California stay home or
their residences except as needed to maintain continuity of
operations of 16 federal critical infrastructure sectors.
Businesses such as those owned by Plaintiffs who did not fit within
the 16 essential sectors were deemed "Non-Essential."
Non-essential businesses were effectively ordered under penalty of
fines and/or imprisonment to shut down. However, business such as
Target, Walmart, and Home Depot were allowed to remain open for
premises shopping since they were deemed to be essential. Gov.
Newsom's executive orders do not provide for a pre- or post-
deprivation remedy to question essential/non-essential status or to
determine if Plaintiffs can open with the same health related
protocols as essential businesses.
The Defendants' orders have caused widespread and catastrophic
damage to California's economy through government mandated closure
of non-essential businesses. The Plaintiffs have faced numerous
difficulties with respect to financial obligations and have been
forced to lay off significant numbers of employees. The Plaintiffs
face a real and existential threat to their survival and business
operations.
At the same time, Gov. Newsom allowed and is allowing other
restaurants and businesses throughout the state to remain open for
indoor dining and indoor operations, even though those businesses
must adhere to CDC guidelines on social distancing and Plaintiffs
are fully capable of adhering to those same guidelines.
The FAC alleges that the Defendants' orders should be enjoined
under 42 U.S.C. 1983 because the orders: (1) plainly violate the
Due Process and Equal Protection Clauses of the Fifth and
Fourteenth Amendments since they unconstitutionally and disparately
apply one set of rules to businesses deemed essential versus all
other businesses that are deemed non-essential, when in fact all
businesses are essential to the health, welfare, and wellbeing of
its citizens; (2) the orders amount to an impermissible partial or
complete taking in violation of the Fifth Amendment's Takings
Clause; and (3) the orders violate the substantive and procedural
due process clauses of the Fifth and Fourteenth Amendments. The
orders also violate Article 1, Sections 1, 7, and 19 of the
California Constitution.
The Plaintiffs allege that labeling them as non-essential is
irrational, arbitrary, and capricious and bears no rational basis
to any valid government interest. They also allege that the orders
are not narrowly tailored to further a compelling governmental
interest. The Defendants have granted numerous special exemptions
to their bans on public gatherings, including for essential
businesses, provided that social distancing is observed. Since
such gatherings are permitted, the Defendants must permit the
Plaintiffs to engage in such activities provided that social
distancing guideline is also followed.
From these allegations, the Plaintiffs allege six counts. Count 1
alleges a claim for Procedural Due Process under the Fourteenth
Amendment. Citing Sacramento v. Lewis, 523 U.S. 833, 845 (1988),
the Plaintiffs allege that they have a protected liberty interest
in the right to live without arbitrary governmental interference
with their liberty and property interests. The orders at issue
provided no process before issuance and provide for no
post-deprivation review. By failing to provide for pre- or
post-deprivation review, the Plaintiffs have lost significant
revenue.
Count 2 alleges violation of the Substantive Due Process under the
Fourteenth Amendment. The Plaintiffs allege that the orders shock
the conscience and interfere with rights implicit in the concept of
ordered liberty. They allege that there is also no rational basis
for the orders since the Covid 19 virus is under control and the
Plaintiffs are capable of following guidelines to safely conduct
business.
Count 3 alleges violation of Equal Protection under the Fourteenth
Amendment. The Plaintiffs allege that restaurants and businesses
throughout the state are permitted to operate indoor dining and
activities, yet they are not. Under Gov. Newsom's orders, the
Plaintiffs' businesses must remain closed for indoor dining while
businesses just hours away can open for indoor operations, even
though they can implement the same otherwise applicable social
distancing guidelines.
Count 4 alleges violation of Equal Protection under Art. 1, Sec.
7(a) of the California Constitution. The Plaintiffs allege that
classifying businesses as either essential or non-essential, or
based on location, treats businesses differently.
Count 5 (unnumbered in the FAC but plead separately) requests a
preliminary injunction against enforcement of the various orders.
Count 6 (unnumbered in the FAC but plead separately) alleges a
violation of the Fifth Amendment's Takings Clause. The Plaintiffs
allege that the Defendants ordered them to shut down and cease all
indoor operations in order to curb the spread of Covid 19. The
mandate completely and unconstitutionally deprived the Plaintiffs
of economically beneficial use of their business without just
compensation. The orders have affected a complete and total
regulatory and physical taking of Plaintiffs' property without just
compensation.
In their Prayer, the Plaintiffs request designation of the case as
a class action, declaratory relief that the executive orders
violate their constitutional rights, a preliminary injunction
enjoining further enforcement of the executive orders, just
compensation in an amount of no less than $200 million, attorneys'
fees, and any other suitable relief.
Currently before the Court are three motions to dismiss, one by the
entities affiliated with the State of California ("State
Entities"), one by the entities affiliated with the County of
Fresno ("County Entities"), and one by entities affiliated with the
City of Fresno ("City Entities").
State Entities' Motion to Dismiss
The State Entities make a number of legal arguments. First, the
Eleventh Amendment bars all federal claims against the State of
California and CABC, the Plaintiffs' claims under Section 1983 for
just compensation, and all state law claims. Second, under
Jacobson v. Massachusetts, 197 U.S. 11 (1905), the challenged
orders are a permissible exercise of the state's emergency powers.
Third, under traditional constitutional standards, no plausible
claims are alleged.
With respect to Procedural Due Process, the State Entities argue
that the due process is satisfied when officials perform their
responsibilities in the normal manner prescribed by law. The
orders do not single out the Plaintiffs but apply to all
businesses.
With respect to substantive due process, they argue that the
restrictions at issue are backed by science and target conduct that
is known to increase the risk of Covid 19 transmission. The orders
are reasonably related to the State's legitimate interest in
protecting public health and safety during a pandemic. There is
nothing about the orders that shock the conscience or violate the
decencies of civilized conduct. Temporarily limiting indoor
operations is not egregious or akin to forced stomach pumping.
With respect to equal protection, they say the claim fails because
there is no threshold showing that the orders treat similarly
situated businesses differently (given that the restrictions are
based on transmission rates), and, even if such a showing was made,
the orders survive rational basis review.
Finally, with respect to the takings claim, the State Entities
argues that the Plaintiffs fail to identify a constitutionally
protected property interest. They identify no property that is
impacted and only allege in general terms that they have lost
revenue because their businesses are less profitable than they
otherwise would be. However, even if a legally protected property
interest were identified, the orders do not physically invade or
take property, nor do they constitute regulations that are so
onerous that their effect is tantamount to a direct appropriation
or ouster. The orders do not eliminate all economically viable use
of the Plaintiffs' businesses. The mere diminution in the value of
property, however serious, is insufficient to demonstrate a
taking.
City Entities' Motion to Dismiss
The City Entities argue that their efforts to address public health
concerns followed the State's direction and are no more restrictive
than the State orders. On March 16, 2020, Mayor Brand declared a
Local Emergency based on the threat of Covid 19 to the City. This
was followed by a series of orders that prohibited indoor dining.
On July 14, 2020, the City issued an emergency order that allowed
for the reopening of restaurants following County and State health
guidelines. The City Entities make arguments that largely (though
not completely) parallel and repeat the arguments made by the State
Entities.
First, Judge Ishii finds that the City's orders fit within Jacobson
and Chief Justice Roberts's concurrence in South Bay United
Pentecostal Church. Second, he says the temporary restrictions in
the emergency orders do not shock the conscience and are rationally
related to a legitimate government interest. Third, there are no
allegations that the City Entities violated the Equal Protection
clause (because those claims are based on the Governor treating
different businesses in different counties differently), and in any
event the orders are rationally related to protecting health and
safety. Fourth, there is no plausible Fifth Amendment Takings
Clause claim. Fifth, Mayor Brand cannot be held individually
liable for Fifth Amendment takings claims. Finally, there is no
independent claim for preliminary injunction because it is a
remedy.
Plaintiffs' Opposition
The Plaintiffs filed one unified opposition. They argue that (i)
Gov. Newsom's orders do not appear to be based on scientific data,
(ii) Jacobson does not mean that a more deferential standard should
apply during a period of crisis or emergency, (iii) the Defendants
have violated due process rights under the Fourteenth Amendment,
(iv) the Governor's orders and the Defendants' enforcement thereof
violate the equal protection clause, both facially and as applied
to them, and (v) the Eleventh Amendment does not bar the suit
against them.
County Entities' Reply
The County Entities joined the State Entities' motion to dismiss
without reservation. However, thy also filed a reply which
included two arguments that were not made in their joinder. First,
the County Entities argue that the FAC identifies conduct and
orders issued by the City Entities and the State Entities, but
there are no allegations that identify any orders or actions by the
County Entities that caused any injuries to the Plaintiffs. The
County is merely lumped together with the City Entities and the
State Entities. Second, the County Entities argue that they have
no discretion to relax the orders, opt out of the orders, or adopt
less restrictive measures. In the context of the Covid 19 pandemic
and the emergency public health orders issued, the County Entities
are an arm of the State and entitled to Eleventh Amendment
immunity.
Judicial Notice
The State and City Entities both seek to have certain public
records of governmental documents available on the internet
judicially noticed. Judge Ishii explains that the court can take
judicial notice of public records and government documents
available from reliable sources on the Internet, such as websites
run by governmental agencies. Accordingly, he granted the
Defendants' requests for judicial notice are granted.
Order
Judge Ishii granted the Defendants' motions to dismiss. He
dismissed with leave to amend the Plaintiffs' Fourteenth Amendment
Substantive Due Process claim, Fourteenth Amendment Equal
Protection claim, and Fifth Amendment Takings claim. He dismissed
without leave to amend all the other claims.
Among other things, Judge Ishii finds that the restrictions are
rationally related to the goal of preventing the spread of Covid
19, a respiratory illness. The science suggests that for indoor
operations the odds of an infected person transmitting the virus
are dramatically higher compared to an open-air environment. Thus,
for those counties on the list, it is necessary to close indoor
operations for additional sectors which promote the closed-space
mixing of populations beyond households and/or make adherence to
physical distancing with face coverings difficult. The City
Entities directly explain that "Limiting in-person interactions,
where possible, mitigates the spread of COVID-19. The City
Defendants have a strong interest in stopping the spread of
COVID-19 and have chosen to temporarily close the indoor activities
of certain businesses to achieve the goal. Based on the judicially
noticed materials, the Defendants have provided legitimate
justification for the restrictions on indoor business activities.
Judge Ishii has concluded that no plausible Fourteenth Amendment
due process claims are pled. With respect to procedural due
process, because the emergency orders at issue are legislative in
nature, he concludes that no plausible claim can be stated and
amendment would be futile. Therefore, the procedural due process
claim will be dismissed without leave to amend. With respect to
substantive due process, the FAC and the briefing tended to be
general in nature and did not necessarily address or resolve all
relevant issues in a definitive manner. As with the Takings Claim,
the Judge has reservations that amendment can cure the defects.
Nevertheless, leave to amend is the general rule even when not
requested. Because he cannot definitively say at this time that
amendment would be futile, the Judge follows the general rule and
permits the Plaintiffs to amend their substantive due process
claim.
In the FAC, the specific allegations with regards to the Fourteenth
Amendment equal protection claim state that under Governor Newsom's
executive orders, the Plaintiffs' businesses must remain closed for
indoor operations while businesses just hours away can open for
indoor operations. The Plaintiffs also allege that their rights to
equal protection under the California Constitution are violated as
well.
First, Judge Ishii holds that the science suggests that for indoor
operations the odds of an infected person transmitting the virus
are dramatically higher compared to an open-air environment. This
reasoning explains why businesses in Fresno County might be subject
to more severe restrictions than businesses elsewhere in the state
that have lower transmission rates and consequently lower public
health risk. Second, the Plaintiffs have not shown that the Stay
at Home Order's designation between essential and non-essential
businesses is beyond all question, a plain, palpable invasion of
the right to equal protection. The Stay at Home Order has a
legitimate purpose—namely, curbing the spread of COVID-19.
Additionally, the challenged designations between essential and
non-essential businesses promote that purpose. At minimum, there
are 'plausible, arguable, or conceivable' reasons for the State's
designations. Again, Judge Ishii follows the general rule and
grants the Plaintiffs leave to amend to clarify their equal
protection claims.
Finally, Judge Ishii finds that the Fifth Amendment Takings Clause
is not a basis for equitable injunctive relief, and the FAC does
not allege a plausible takings claim. The Plaintiffs' failure to
defend the claim indicates a recognition that no plausible claim is
alleged or abandonment, which suggests that leave to amend need not
be given. However, leave to amend is the general rule, even if no
request for leave to amend is made. In the absence of a more in
depth discussion of the Penn Central considerations by the parties,
although he has reservations, the Judge follows the general rule
and permits amendment because it is not sufficiently clear that
amendment would be futile.
No later than 28 days of service of the Order, the Plaintiffs may
file an amended complaint that is consistent with the analysis of
the Order. If the Plaintiffs file a second amended complaint, the
Defendants will file a response to the amended complaint within 21
days of service of the second amended complaint. If the Plaintiffs
fail to file a timely amended complaint, the leave to amend will be
automatically withdrawn without further order and the case will be
closed.
A full-text copy of the Court's Feb. 5, 2021 Order is available at
https://tinyurl.com/2nb3o5e4 from Leagle.com.
CBS TELEVISION: Bid for Collective Action Certification Tossed
--------------------------------------------------------------
In the class action lawsuit captioned as SILVA HARAPETI, v. CBS
TELEVISION STATIONS INC., Case No. 1:20-cv-22995-KMW (S.D. Fla.),
the Hon. Judge Kathleen M. Williams entered an order:
1. affirming and adopting Judge Lauren F. Louis' Recommendation;
and
2. denying the Plaintiff's motion for conditional
certification of collective action.
CBS Television Stations is a division of the CBS Entertainment
Group unit of ViacomCBS that owns and operates a group of American
television stations.
A copy of the Court's order dated Feb. 5, 2020 is available from
PacerMonitor.com at https://bit.ly/3ddE0Pn at no extra charge.[CC]
CDK GLOBAL: AutoLoop Class Action in Illinois Still Ongoing
------------------------------------------------------------
CDK Global, Inc. said in its Form 10-Q Report filed with the
Securities and Exchange Commission on February 9, 2021, for the
quarterly period ended December 31, 2020, that the company
continues to defend a class action suit initiated by Loop LLC d/b/a
AutoLoop.
Loop LLC d/b/a AutoLoop brought suit against CDK Global, LLC on
April 9, 2018, in the U.S. District Court for the Northern District
of Illinois, but reserved its rights with respect to remand to the
U.S. District Court for the Western District of Wisconsin at the
conclusion of the MDL proceedings.
On June 5, 2018, AutoLoop amended its complaint to sue on behalf of
itself and a putative class of all other automotive software
vendors in the United States that purchased data integration
services from CDK Global, LLC or Reynolds.
CDK Global, LLC moved to compel arbitration of AutoLoop's claims,
or in the alternative, to dismiss those claims; that motion was
denied on January 25, 2019.
CDK Global, LLC filed an answer to AutoLoop's complaint and
asserted counterclaims against AutoLoop on February 15, 2019.
AutoLoop filed an answer to CDK Global, LLC's counterclaims on
March 8, 2019.
The parties' cross-motions for summary judgment and Daubert motions
were fully briefed as of September 28, 2020 and remain pending.
CDK Global, Inc. provides software and technology solutions for
automotive retailers in the United States and internationally. The
company operates through Retail Solutions North America,
Advertising North America, and CDK International segments. CDK
Global, Inc. is headquartered in Hoffman Estates, Illinois.
CDK GLOBAL: Cross-Motions for Summary Judgment Pending
------------------------------------------------------
CDK Global, Inc. said in its Form 10-Q Report filed with the
Securities and Exchange Commission on February 9, 2021, for the
quarterly period ended December 31, 2020, that the parties'
cross-motions for summary judgment and Daubert motions are still
pending.
Teterboro Automall, Inc. d/b/a Teterboro Chrysler Dodge Jeep Ram
brought a putative class action suit on behalf of itself and all
similarly situated automobile dealerships against CDK Global, LLC
and Reynolds.
Teterboro's suit was originally filed on October 19, 2017, in the
U.S. District Court for the District of New Jersey.
Since that time, several more putative class actions were filed in
a number of federal district courts, with substantively similar
allegations; all of them have been consolidated with the MDL
proceeding.
On June 4, 2018, a consolidated class action complaint was filed on
behalf of a putative class made up of all dealerships in the United
States that directly purchased DMS and/or allegedly indirectly
purchased DMS or data integration services from CDK Global, LLC or
Reynolds (Putative Dealership Class Plaintiffs).
CDK Global, LLC moved to dismiss the complaint, or in the
alternative, compel arbitration of certain of the cases while
staying the remainder pending the outcome of those arbitration
proceedings; its motion to dismiss was granted in part and denied
in part, while its motion to compel arbitration was denied.
On February 22, 2019, CDK Global, LLC filed an answer to the
remaining claims in Putative Dealership Class Plaintiffs' complaint
and asserted counterclaims against the Putative Dealership Class
Plaintiffs.
The Putative Dealership Class Plaintiffs filed a motion to dismiss
CDK Global, LLC's counterclaims; that motion was granted in part
and denied in part on September 3, 2019.
On October 23, 2018, the Putative Dealership Class Plaintiffs and
Reynolds filed a motion for preliminary approval of the settlement
and for conditional certification of the proposed settlement class.
The court finally approved that settlement on January 22, 2019.
The parties' cross-motions for summary judgment and Daubert motions
were fully briefed as of September 28, 2020 and remain pending.
CDK Global, Inc. provides software and technology solutions for
automotive retailers in the United States and internationally. The
company operates through Retail Solutions North America,
Advertising North America, and CDK International segments. CDK
Global, Inc. is headquartered in Hoffman Estates, Illinois.
CHINESE-AMERICAN PLANNING: Appeals Feb. 9 Ruling in Chu Suit
------------------------------------------------------------
Defendant Chinese-American Planning Council Home Attendant Program,
Inc. filed an appeal from a court ruling entered in the lawsuit
entitled Mei Kum Chu, Sau King Chung and Xiang Ling, individually
and on behalf of all others similarly situated v. Chinese-American
Planning Council Home Attendant Program, Inc., Case No.
651947/2016, in the Supreme Court of the State of New York, County
of New York.
The Defendant appeals from the Decision and Order on Motion of the
Supreme Court of the State of New York, County of New York, dated
February 9, 2021.
The appellate case is captioned as Mei K. Chu et al. v.
Chinese-American Planning Council Home Attendant Program, Inc.,
Case No. 2021-00499, in the Appellate Division of the Supreme Court
of the State of New York, First Judicial Department, February 11,
2021.
As reported in the Class Action Reporter, this action was filed
against Defendant Chinese-American Planning Council Home Attendant
Program by a group of home care aides employed to care for elderly
individuals.
Plaintiffs previously sought an order (1) granting leave to reargue
the portion of the Court's February 25, 2020 order declining to
restore the action pursuant to CPLR 2221; (2) lifting the stay of
the action issued by the Court on April 17, 2017; and (3)
permitting Plaintiffs to appeal the March 12, 2019 order of the
Court dismissing the case without prejudice. [BN]
Plaintiffs-Respondents Mei Kum Chu, Sau King Chung and Xiang Ling,
individually and on behalf of all others similarly situated, are
represented by:
Michael Taubenfeld, Esq.
FISHER TAUBENFELD LLP
225 Broadway, Suite 1700
New York, NY 10007
Telephone: (212) 571-0700
Facsimile: (212) 505-2001
E-mail: michael@fishertaubenfeld.com
- and -
S. Tito Sinha, Esq.
TAKEROOT JUSTICE
123 William Street, 16th Floor
New York, NY 10038
Telephone: (212) 810-6744
Facsimile: (212) 619-0653
E-mail: tsinha@takerootjustice.org
Defendant-Petitioner Chinese-American Planning Council Home
Attendant Program, Inc. is represented by:
Kenneth Kirschner, Esq.
David Baron, Esq.
HOGAN LOVELLS US LLP
390 Madison Avenue
New York, NY 10017
Telephone: (212) 918-3260
Facsimile: (212) 918-3100
CITRIX SYSTEMS: Bid to Dismiss GoTo Services Spinoff Suit Pending
-----------------------------------------------------------------
Citrix Systems, Inc. said in its Form 10-K report filed with the
U.S. Securities and Exchange Commission on February 8, 2021, for
the fiscal year ended December 31, 2020, that the defendants'
motions to dismiss the class action suit related to the company's
2017 spin-off of Citrix's GoTo family of service offerings remains
pending.
On July 25, 2019, a class action lawsuit was filed against Citrix,
LogMeIn, Inc. and certain of their current and former directors and
officers in the Circuit Court of the 15th Judicial Circuit, Palm
Beach County, Florida.
The complaint alleges that the defendants violated federal
securities laws by making alleged misstatements and omissions in
LogMeIn's Registration Statement and Prospectus filed in connection
with the 2017 spin-off of Citrix's GoTo family of service offerings
and subsequent merger of that business with LogMeIn. The complaint
seeks among other things the recovery of monetary damages.
On April 28, 2020, the defendants filed motions to dismiss the
complaint, which remain pending.
Citrix said, "The Company believes that Citrix and its current and
former directors named as defendants have meritorious defenses to
these allegations; however, the Company is unable to currently
determine the ultimate outcome of this matter or the potential
exposure or loss, if any."
No further updates were provided in the Company's SEC report.
Citrix Systems, Inc., incorporated on April 17, 1989, offers
Enterprise and Service Provider products, which include Workspace
Services solutions and Delivery Networking products. The Company's
Enterprise and Service Provider products include Cloud Services
solutions, and related license updates and maintenance, support and
professional services. The Company's NetScaler nCore Technology is
an architecture that enables execution of multiple packet engines
in parallel. The company is based in Fort Lauderdale, Florida.
CLOVER HEALTH: Gainey McKenna Reminds Investors of April 6 Deadline
-------------------------------------------------------------------
Gainey McKenna & Egleston on Feb. 8 disclosed that a class action
lawsuit has been filed against Clover Health Investments, Corp.
("Clover" or the "Company") (NASDAQ: CLOV) in the United States
District Court for the Middle District of Tennessee on behalf of
those who purchased or acquired the securities of Clover between
October 6, 2020 and February 4, 2021, inclusive (the "Class
Period") and/or purchased or otherwise acquired Clover securities
pursuant or traceable to the registration statement and prospectus
issued in connection with the December 2020 Merger of Clover and
Social Capital III. The lawsuit seeks to recover damages for Clover
investors under the federal securities laws.
The Complaint alleges that the Company made false and misleading
statements to the market. Clover was the subject of an active DOJ
investigation of at least 12 issues including kickbacks and
deceptive marketing. The investigation represented a major threat
to the Company's future due to its dependence on Medicare for
revenue. The Company's sales were not driven by its "best-in-class"
technology as it touted, but rather by misleading marketing
practices aimed at senior citizens. A considerable portion of the
Company's sales were derived from an undisclosed relationship with
a brokerage firm controlled by the Clover's head of sales. 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 Clover, investors suffered damages.
Investors who purchased or otherwise acquired shares of Clover
during the Class Period should contact the Firm prior to the April
6, 2021 lead plaintiff motion deadline. A lead plaintiff is a
representative party acting on behalf of other class members in
directing the litigation. If you wish to discuss your rights or
interests regarding this class action, please contact Thomas J.
McKenna, Esq. or Gregory M. Egleston, Esq. of Gainey McKenna &
Egleston at (212) 983-1300, or via e-mail at tjmckenna@gme-law.com
or gegleston@gme-law.com.
Please visit our website at http://www.gme-law.comfor more
information about the firm. [GN]
CLOVER HEALTH: RM Law Reminds Investors of April 6 Deadline
-----------------------------------------------------------
RM LAW, P.C. on Feb. 8 disclosed that a class action lawsuit has
been filed on behalf of all persons or entities that purchased
Clover Health Investments, Inc. ("Clover" or the "Company")
(NASDAQ:CLOV) (NASDAQ:CLOVW) securities during the period from
October 6, 2020 through February 4, 2021, inclusive (the "Class
Period").
Clover shareholders may, no later than April 6, 2021, move the
Court for appointment as a lead plaintiff of the Class. If you
purchased shares of Clover and would like to learn more about these
claims or if you wish to discuss these matters and have any
questions concerning this announcement or your rights, contact
Richard A. Maniskas, Esquire toll-free at (844) 291-9299 or to sign
up online, click here.
According to the lawsuit, defendants throughout the Class Period
and in the registration statement made false and/or misleading
statements and/or failed to disclose that: (1) Clover's was under
active investigation by the Department of Justice for at least 12
issues ranging from kickbacks to marketing practices to undisclosed
third-party deals; (2) the DOJ's investigation presented an
existential risk to the Company, since it derives most of its
revenues from Medicare; (3) Clover's sales were driven by a major
undisclosed related party deal and misleading marketing targeting
the elderly, not its purported "best-in-class" technology; (4) a
significant portion of Clover sales were by way of an undisclosed
relationship between Clover and an outside brokerage firm
controlled by Clover's Head of Sales; and (5) as a result,
Defendants' statements about its business, operations, and
prospects, were materially false and misleading and/or lacked a
reasonable basis at all relevant times. When the true details
entered the market, the lawsuit claims that investors suffered
damages.
If you are a member of the class, you may, no later than April 6,
2021, request that the Court appoint you as lead plaintiff of the
class. A lead plaintiff is a representative party that acts on
behalf of other class members in directing the litigation. In order
to be appointed lead plaintiff, the Court must determine that the
class member's claim is typical of the claims of other class
members, and that the class member will adequately represent the
class. Under certain circumstances, one or more class members may
together serve as "lead plaintiff." Your ability to share in any
recovery is not, however, affected by the decision whether or not
to serve as a lead plaintiff. You may retain RM LAW, P.C. or other
counsel of your choice, to serve as your counsel in this action.
For more information regarding this, please contact RM LAW, P.C.
(Richard A. Maniskas, Esquire) toll-free at (844) 291-9299 or by
email at rm@maniskas.com or click here. For more information about
class action cases in general or to learn more about RM LAW, P.C.
please visit our website by clicking here.
RM LAW, P.C. is a national shareholder litigation firm. RM LAW,
P.C. is devoted to protecting the interests of individual and
institutional investors in shareholder actions in state and federal
courts nationwide.
CONTACT:
RM LAW, P.C.
Richard A. Maniskas, Esquire
1055 Westlakes Dr., Ste. 300
Berwyn, PA 19312
484-324-6800
844-291-9299
rm@maniskas.com [GN]
COMMERCE ENERGY: Files Writ of Certiorari Bid w/ Sup. Ct. in Hurt
-----------------------------------------------------------------
Defendants Just Energy Marketing Corp.; Just Energy Group, Inc.;
and Commerce Energy, Inc. d/b/a Just Energy d/b/a Commerce Energy
of Ohio, Inc. filed with the Supreme Court of United States a
petition for a writ of certiorari in the matter styled JUST ENERGY
MARKETING CORP., et al., Petitioners v. DAVINA HURT and DOMINIC
HILL, individually and on behalf of all others similarly situated,
Respondents, Case No. 20-1093.
Response is due on March 15, 2021.
The Defendants petition for a writ of certiorari to review the
judgment of the United States Court of Appeals for the Sixth
Circuit in the case titled Hurt v. Commerce Energy, Inc., Case No.
18-4058.
The question presented is: Whether, as the Second Circuit held,
Petitioners' door-to-door solicitors are exempt "outside salesmen"
under the FLSA or, as the Sixth Circuit held, Petitioners'
door-to-door solicitors are not exempt "outside salesmen" under the
FLSA because the sales agreements remain subject to regulatory
checks and Petitioners' ultimate approval.
In this long-lingering bifurcated litigation, a jury found that the
Defendants are liable for violations of the Fair Labor Standards
Act ("FLSA") and the Ohio Minimum Fair Wage Standards Act ("Ohio
Wage Act"). After a long and complicated damage determination, the
Court determined damages for the large collective action and class
action.
This case presents a clean circuit split on an important question
of federal law that has broad ramifications for the many employers
and employees across the country who engage in outside sales. In
the decision, a divided Sixth Circuit held that even though
Respondents concededly go door to door persuading potential
customers to sign agreements to buy Petitioners' products, they are
not "outside salesmen" within the meaning of the FLSA because
Petitioners retain discretion to subsequently decline to proceed
with a transaction. By contrast, the Second Circuit held that
Petitioners' door-to-door solicitors are "outside salesmen" under
the FLSA and that Petitioners' discretion to subsequently decline a
transaction is immaterial to the outside-salesperson analysis. The
Second Circuit supported its decision by citing this Court's
decisions in Christopher and Encino Motorcars, while the Sixth
Circuit confined Christopher to the pharmaceutical industry and did
not even acknowledge Encino Motorcars. Although the Sixth Circuit
disclaimed a circuit split, the cases involve employees of the same
company discharging the same outside sales functions, with the only
distinctions among employees turning on irrelevant factors such as
their locations during verification calls and their relative
success in earning commissions. The Sixth Circuit's decision
thereby unsettles issues that the Supreme Court had settled and
creates instability for employers and employees alike.
This Court should grant review to resettle these questions and to
save Petitioners from an untenable conflict between the Second and
Sixth Circuits over the exempt status of Petitioners' workforce,
according to the Petitioners.[BN]
Defendants-Appellants-Petitioners Just Energy Marketing Corp., et
al., are represented by:
Paul D. Clement, Esq.
KIRKLAND & ELLIS LLP
1301 Pennsylvania Avenue, NW
Washington, DC 20004
E-mail: paul.clement@kirkland.com
COTY INC: Continues to Defend Garrett-Evans Putative Class Action
------------------------------------------------------------------
Coty Inc. said in its Form 10-Q Report filed with the Securities
and Exchange Commission on February 9, 2021, for the quarterly
period ended December 31, 2020, that the company continues to
defend a purported stockholder class action suit entitled, Crystal
Garrett-Evans v. Coty Inc. et al., Case No. 1:20-cv-07277.
A purported stockholder class action complaint, alleging violations
of the U.S. securities laws in connection with the P&G beauty
brands acquisition is pending against the Company as well as
certain current and former officers of the Company in the U.S.
District Court for the Southern District of New York.
The case, which was filed on September 4, 2020, is captioned
Crystal Garrett-Evans v. Coty Inc. et al., Case No. 1:20-cv-07277.
On November 23, 2020, the court appointed the individual Susan Nock
as lead plaintiff and the Rosen Firm as lead counsel. Plaintiff
filed an amended complaint on January 22, 2021.
The Amended Complaint asserts claims under the federal securities
laws and seeks, among other things, monetary relief.
This case remains at an early stage.
Coty Inc., together with its subsidiaries, manufactures, markets,
distributes, and sells beauty products worldwide. It operates in
three segments: Luxury, Consumer Beauty, and Professional Beauty.
The company was founded in 1904 and is based in New York, New York.
As of April 26, 2019, Coty Inc. operates as a subsidiary of JAB
Cosmetics B.V.
COTY INC: Lewis Putative Class Action Underway
----------------------------------------------
Coty Inc. said in its Form 10-Q Report filed with the Securities
and Exchange Commission on February 9, 2021, for the quarterly
period ended December 31, 2020, that the company continues to
defend a purported stockholder class action and derivative suit
entitled, Chris Lewis v. Becht et al., Case No. 1:20-cv-09685.
A purported stockholder class action and derivative complaint,
alleging violations of the U.S. securities laws in connection with
the P&G beauty brands acquisition and the Kylie Brands transaction
as well as claims for breach of fiduciary duties, unjust
enrichment, abuse of control, gross mismanagement, and waste of
corporate assets by certain current and former officers and
directors of the Company, is pending in the U.S. District Court for
the Southern District of New York.
The case, which was filed on November 17, 2020, is captioned Chris
Lewis v. Becht et al., Case No. 1:20-cv-09685.
The Company was named as a nominal defendant.
The plaintiff asserts claims under the federal securities laws, as
well as claims for breach of fiduciary duties, unjust enrichment,
abuse of control, gross mismanagement, and waste of corporate
assets, and seeks, among other things, injunctive and/or monetary
relief.
This case remains at an early stage.
Coty Inc., together with its subsidiaries, manufactures, markets,
distributes, and sells beauty products worldwide. It operates in
three segments: Luxury, Consumer Beauty, and Professional Beauty.
The company was founded in 1904 and is based in New York, New York.
As of April 26, 2019, Coty Inc. operates as a subsidiary of JAB
Cosmetics B.V.
COTY INC: Massachusetts Laborers' Pension Fund Suit Ongoing
-----------------------------------------------------------
Coty Inc. said in its Form 10-Q Report filed with the Securities
and Exchange Commission on February 9, 2021, for the quarterly
period ended December 31, 2020, that the company continues to
defend a consolidated purported stockholder class action and
derivative suit entitled, Massachusetts Laborers' Pension Fund v.
Harf et al., Case No. 2019-0336-AGB.
A consolidated purported stockholder class action and derivative
complaint concerning the Cottage Tender Offer and the Schedule
14D-9 is pending against certain current and former directors of
the Company, JAB Holding Company, S.a.r.l., JAB Holdings B.V., JAB
Cosmetics B.V., and Cottage Holdco B.V. in the Court of Chancery of
the State of Delaware. The Company was named as a nominal
defendant.
The case, which was filed on May 6, 2019, was captioned
Massachusetts Laborers' Pension Fund v. Harf et al., Case No.
2019-0336-AGB.
On June 14, 2019, plaintiffs in the consolidated action filed a
Verified Amended Class Action and Derivative Complaint. After
defendants responded to the Amended Complaint, on October 21, 2019,
plaintiffs filed a Verified Second Amended Class Action and
Derivative Complaint, alleging that the directors and JAB Holding
Company, S.ar.l., JAB Holdings B.V., JAB Cosmetics B.V., and
Cottage Holdco B.V. breached their fiduciary duties to the
Company's stockholders and breached the Stockholders Agreement. The
Second Amended Complaint seeks, among other things, monetary
relief.
On November 21, 2019, the defendants moved to dismiss certain
claims asserted in the Second Amended Complaint, and certain of the
director defendants also answered the complaint.
On May 7, 2020, plaintiffs stipulated to the dismissal without
prejudice of JAB Holding Company, S.a.r.l. from the action. On
August 17, 2020, the court denied the remaining motions to dismiss.
A further scheduling order has not yet been entered.
Coty Inc., together with its subsidiaries, manufactures, markets,
distributes, and sells beauty products worldwide. It operates in
three segments: Luxury, Consumer Beauty, and Professional Beauty.
The company was founded in 1904 and is based in New York, New York.
As of April 26, 2019, Coty Inc. operates as a subsidiary of JAB
Cosmetics B.V.
COTY INC: Rumsey Purported Class Action Voluntarily Dismissed
-------------------------------------------------------------
Coty Inc. said in its Form 10-Q Report filed with the Securities
and Exchange Commission on February 9, 2021, for the quarterly
period ended December 31, 2020, that the purported stockholder
class action complaint entitled, Rumsey v. Coty, Inc., et al., Case
No. 1:19-cv-00650-LPS, has been voluntarily dismissed.
A purported stockholder class action complaint concerning the
tender offer by Cottage Holdco B.V. and the Schedule 14D-9,
captioned Rumsey v. Coty, Inc., et al., Case No. 1:19-cv-00650-LPS,
was filed by a putative stockholder against the Company and certain
current and former directors of the Company in the U.S. District
Court for the District of Delaware, but was not served.
The plaintiff alleges that the Company's Schedule 14D-9 omits
certain information, including, among other things, certain
financial data and certain analyses underlying the opinion of
Centerview Partners LLC. The plaintiff asserts claims under the
federal securities laws and seeks, among other things, injunctive
and/or monetary relief.
On January 24, 2021, the plaintiff voluntarily dismissed the
action.
Coty Inc., together with its subsidiaries, manufactures, markets,
distributes, and sells beauty products worldwide. It operates in
three segments: Luxury, Consumer Beauty, and Professional Beauty.
The company was founded in 1904 and is based in New York, New York.
As of April 26, 2019, Coty Inc. operates as a subsidiary of JAB
Cosmetics B.V.
CVS PHARMACY: Cal. App. Flips Summary Judgment in Zamora Class Suit
-------------------------------------------------------------------
In the case, OSIRIS ZAMORA et al., Plaintiffs and Appellants v. CVS
PHARMACY, INC., Defendant and Respondent, Case No. B299375 (Cal.
App.), the Court of Appeals of California for the Second District,
Division Five, reversed the trial court's summary judgment in favor
of CVS.
Zamora purchased a product from CVS, a national retail pharmacy,
that did not make the text of the manufacturer's written warranty
available for review before purchase as required under the federal
Magnuson-Moss Warranty Act. She brought an action against CVS
seeking injunctive relief under the Unfair Competition Law ("UCL")
based on the violation of federal warranty law.
In summary judgment proceedings, Zamora declared that she did not
know she had a right to review the warranty before making her
purchase, she would have reviewed the warranty if the CVS had made
it available as required by federal law, and she would not have
purchased the product after she learned the warranty was limited to
replacement parts.
The trial court ruled on the evidentiary objections and the motion
for summary judgment. It sustained CVS's objection to statement 1
from Zamora's declaration, and overruled CVS' objections to the
other statements in Zamora's declaration and to Zamora's other
evidence. The court granted the motion for summary judgment. It
found CVS presented undisputed evidence that Zamora purchased the
device under the belief that it was covered by a full warranty and
she received everything that she expected under that warranty when
WaterPik sent her a replacement unit for free. Because she received
the expected benefit of her bargain, she suffered no economic loss.
Zamora's declaration did not create a triable issue of fact with
respect to standing.
The trial court entered judgment in favor of CVS on May 10, 2019.
Zamora filed a timely notice of appeal from the judgment. On
appeal, Zamora contends her declaration was consistent with her
deposition testimony, and she suffered economic injury as a result
of the unfair competition, because she paid for a product that she
would not have purchased if the seller had complied with the
warranty law.
First, Zamora contends the trial court erred by excluding the
statement in her declaration that she was unaware of her right to
obtain a copy of the product warranty before she made her purchase.
CVS objected to the statement on the grounds that it contradicted
her deposition testimony and was not relevant.
The Court of Appeals agrees with Zamora that the statement should
not have been excluded. The fact that Zamora read the clear print
on the front of the box promoting the three-year warranty, but did
not read the very fine print underneath the box which revealed that
the warranty was limited, also does not contradict her declaration
that she did not know she could review the warranty before making
her purchase and would have requested to review it had she known.
Incomplete information and misleading packaging about product
warranties is exactly the type of confusion that the warranty law
was designed to mitigate.
Ms. Zamora did not make a clear, unequivocal admission in her
deposition that was contradicted in her declaration. The portions
of her testimony that CVS argued were contradictory relate to the
weight of the evidence, but none of the testimony contradicts the
statements in her declaration or makes them not credible. If
conflicting inferences can reasonably be drawn from the evidence, a
triable issue of fact exists.
In addition, the Court of Appeals opines that Zamora's statement in
her declaration was clearly relevant to the issue of standing. If
Zamora had been aware of her right to request the warranty before
making a purchase, CVS' violation of the federal warranty
requirements by failing to notify her of that right would not have
been a substantial factor in causing her injury. In light of the
requirement in summary judgment proceedings to construe the
evidence presented by CVS strictly and the evidence presented by
Zamora liberally, the Court concludes that the trial court abused
its discretion in sustaining CVS' objection to Zamora's
declaration.
Second, Zamora contends that she established standing under the
UCL, because her evidence showed she suffered an economic injury as
a result of unfair competition. Specifically, she lost money,
because she paid for a product that she would not have purchased if
CVS had made the warranty available for review as required by law.
The Court of Appeals agrees that she has submitted evidence of an
economic injury. The amount that Zamora paid for a product that
she would not have purchased if she had known the limited warranty
terms was an economic injury sufficient to establish injury in
fact. The Court cannot also say the causation chain in the case is
too speculative or remote as a matter of law, when the very purpose
of the federal warranty law is to provide information about
warranty terms to consumers prior to making purchases, and the harm
it seeks to avoid is surprising consumers with unfavorable warranty
terms and limitations after the purchases are complete. A triable
issue of fact exists as to whether CVS' failure to comply with
federal law by making warranties available for review was a
substantial factor in causing Zamora to purchase a product that she
otherwise would not have bought.
Finally, CVS contends Zamora cannot obtain injunctive relief under
the UCL, because there is no likelihood of harm against her in the
future, since she is aware now of her right to review a written
warranty before making a purchase.
The Court of Appeals finds the analysis to be incorrect. It
explains that Proposition 64's amendment of the standing
requirements for an action under the UCL do not preclude a private
individual who has suffered injury in fact and has lost money or
property as a result of a violation of the UCL or the false
advertising law--and who therefore has standing to file a private
action--from requesting public injunctive relief in connection with
that action. Moreover, a plaintiff bringing a private action under
the UCL does not have to comply with the statutory requirement for
class actions in order to seek an injunction against future
wrongful business practices that will injure the public. The trial
court's broad equitable authority to enjoin conduct that violates
the UCL is not unlimited.
In the case, Zamora sought an injunction ordering CVS to comply
with federal regulations to provide warranty information prior to
sale in order to prevent future injury to the general public. As
stated, triable issues of fact exist as to standing. If the trier
of fact determines that Zamora established an economic injury as a
result of CVS' failure to comply with the federal warranty laws,
then she has standing to maintain her action seeking an injunction
on behalf of the general public. There is no evidence that CVS is
complying with the warranty requirements, so the threat remains
that the wrongful conduct will continue and members of the general
public will not be notified of their right to review warranties
prior to making purchases.
Based on the foregoing, the Court of appeals reversed the judgment
and the order granting summary judgment. The trial court is
directed to enter a new and different order denying the motion for
summary judgment. Appellant Zamora is awarded her costs on
appeal.
A full-text copy of the Court's Feb. 5, 2021 Opinion is available
at https://tinyurl.com/1lhd9vss from Leagle.com.
Kostas Law Firm, James S. Kostas -- jkostas@kostaslaw.com -- for
Plaintiff and Appellant.
Alston & Bird, Todd B. Benoff -- todd.benoff@alston.com -- Lisa L.
Garcia -- lisa.garcia@alston.com -- for Defendant and Respondent.
DISCOVER BANK: Appeals Adv. Proceeding Ruling in Golden to E.D.N.Y
------------------------------------------------------------------
Discover BankPlaintiff Tashanna B. Golden, formerly known as:
Tashanna B. Pearson, took an appeal from a court ruling in her
lawsuit captioned Golden v. Discover Bank, Adv. Proc. No.
1-20-01051, in the U.S. Bankruptcy Court for the Eastern District
of New York.
As previously reported, the Bankruptcy Court issued a Memorandum
Decision and Order on January 25, 2021, on the Defendant's Motion
to Compel Arbitration and to Dismiss the Complaint. The Court
concluded that Discover has not established that the Court should
compel arbitration of the claims in this adversary proceeding, and
Discover's Motion to Compel Arbitration is denied.
The appellate case is captioned as Golden v. Discover Bank, Case
No. 1:21-cv-00585-WFK, in the U.S. District Court for the Eastern
District of New York, dated February 4, 2021, and assigned to Judge
William F. Kuntz, II.[BN]
Plaintiff-Appellant Tashanna B. Golden, formerly known as: Tashanna
B. Pearson, on behalf of herself and all others similarly situated,
is represented by:
Adam Reese Shaw, Esq.
George F. Carpinello, Esq.
BOIES, SCHILLER & FLEXNER LLP
30 S Pearl St., 11th Floor
Albany, NY 12207
Telephone: (518) 434-0600
Facsimile: (518) 434-0665
E-mail: ashaw@bsfllp.com
gcarpinello@bsfllp.com
- and -
Austin Connell Smith, Esq.
SMITH LAW GROUP LLP
99 Wall Street No. 426
New York, NY 10005
Telephone: (917) 992-2121
E-mail: austin@acsmithlawgroup.com
- and -
Jason W. Burge, Esq.
Kathryn Johnson, Esq.
FISHMAN HAYGOOD, L.L.P.
201 St Charles Ave, Ste 4600
New Orleans, LA 70170
Telephone: (504) 586-5252
Facsimile: (504) 586-5250
E-mail: jburge@fishmanhaygood.com
kjohnson@fishmanhaygood.com
- and -
Joshua B. Kons, Esq.
50 Albany Turnpike Ste. 4024
Canton, CT 06019
Telephone: (860) 920-5181
- and -
Lynn E. Swanson, Esq.
JONE, SWANSON, HUDDELL & GARRISON, LLC
601 Poydras Street, Ste. 2655
New Orleans, LA 70130
Telephone: (504) 523-2500
E-mail: lswanson@jonesswanson.com
Defendant-Appellee Discover Bank is represented by:
Brian P. Morgan, Esq.
FAEGRE DRINKER BIDDLE & REATH LLP
1177 Avenue of the Americas, 41st Floor
New York, NY 10036
Telephone: (212) 248-3272
E-mail: brian.morgan@faegredrinker.com
- and -
Clay Jackson Pierce, Esq.
DRINKER BIDDLE & REATH LLP
1177 Avenue of the Americas
New York, NY 10036
Telephone: (212) 248-3186
Facsimile: (212) 248-3141
E-mail: clay.pierce@dbr.com
- and -
Erin Hoffman, Esq.
FAEGRE BAKER DANIELS LLP
2200 Wells Fargo Center
90 South 7th Street
Minneapolis, MN 55402
Telephone: (612) 766-8043
Facsimile: (612) 766-1600
E-mail: erin.hoffman@faegrebd.com
- and -
Kyle R. Hosmer, Esq.
FAEGRE DRINKER BIDDLE & REATH LLP
1144 15th Street Unit 3400
Denver, CO 80202
Telephone: (303) 607-3656
Facsimile: (303) 607-3600
E-mail: kyle.hosmer@faegredrinker.com
DOMETIC CORP: 11th Cir. Reverses Denial of Class Certification
--------------------------------------------------------------
Diane Flannery, Esq., Andrew Gann, Esq., Bethany Gayle Lukitsch,
Esq., Frank Talbott, Esq., and R. Trent Taylor, Esq., of
McGuireWoods LLP, in an article for JDSupra, report that earlier,
the Eleventh Circuit joined the Second, Sixth, Eighth, and Ninth
Circuits in rejecting administrative feasibility as a prerequisite
to certification under Rule 23, deepening a split with the First,
Third, and Fourth Circuits. In Cherry v. Dometic Corporation, the
court reversed the district court's denial of class certification
based on administrative feasibility. __ F.3d __, 2021 WL 346121, at
*3-5 (11th Cir. Feb. 2, 2021). The Eleventh Circuit also held that
denial of class certification did not divest the district court of
jurisdiction, ordering the case to proceed in the district court.
See id. at *6.
The result is a mixed bag for litigants. Plaintiffs likely will be
encouraged that the Eleventh Circuit (for now) does not require
proof of administrative feasibility, but defendants can take solace
in that the Eleventh Circuit did caution that administrative
feasibility remains relevant and its ruling does nothing to Rule
23's ascertainability requirements. However, the question remains
open and ripe for resolution at the Supreme Court. Further,
defendants wary of a return to state court can be confident that
they can continue to defend their cases in federal court, even if
they beat certification.
In Cherry, plaintiffs brought a putative class action on behalf of
purchasers of allegedly defective refrigerators. Id. at 1. The
proposed class consisted of persons who purchased certain models of
the refrigerators built since 1997. Id. Plaintiffs contended that
they satisfied Rule 23's implicit ascertainability requirement by
defining the class with objective criteria and that Rule 23 does
not require administrative feasibility. Id. Defendant argued, and
the district court agreed, that plaintiffs failed to provide any
evidence demonstrating a feasible method without overwhelming
individual inquiry to identify the ascertainable putative class
members, requiring denial. Id. After denial, the district court
dismissed for lack of subject matter jurisdiction.
In reversing the district court, the Eleventh Circuit clarified
that Rule 23's ascertainability requirement focused on the class
definition itself, not its administration. See id. at 3-4. Thus, to
meet the ascertainability requirement, a plaintiff must demonstrate
that the "membership is 'capable of being' determined." Id. at *4
(citations omitted). Further, the question of administrative
feasibility addressed post-certification issues because a plaintiff
"proves administrative feasibility by explaining how the district
court can locate the remainder of the class after certification."
Id. This analysis was better suited in analyzing manageability. See
id. And because manageability involves a balancing test,
administrative feasibility could be considered, but could not be
required. Id. at *4-5.
For now, plaintiffs in the Eleventh Circuit will face fewer hurdles
to class certification based on administrative feasibility. For
starters, Cherry makes clear that administrative feasibility cannot
carry the day. And to the extent that administrative feasibility is
considered, it might be drowned out by other considerations in a
balancing test under manageability. For defendants, not all is
lost, as it still can be considered during certification. And the
widening circuit split, with almost every circuit taking a stance
on the issue, calls out for Supreme Court resolution. But the
bottom-line for now is that the Eleventh Circuit just became a more
attractive option for plaintiffs' lawyers seeking to file class
actions.
Less the focus of the opinion but also of importance, the Eleventh
Circuit also held, without much explanation at all, that even if
class certification were properly denied, that jurisdiction under
the Class Action Fairness Act did not depend on certification. Id.
at *6. Thus, a district court retains jurisdiction even after it
denies certification. Id. Curiously, in a prior unpublished
decision, the Eleventh Circuit took the opposite position. See
Walewski v. Zenimax Media, Inc., 502 F. App'x 857, 862 (11th Cir.
2012) ("We affirm the dismissal on the grounds that absent
certification as a class action, the district court lacks subject
matter jurisdiction over Walewski's individual claim."). And the
Southern District of Florida relied on that decision in dismissing
the case after denial of class certification less than six months
ago. See Ohio State Troopers Ass'n Inc. v. Point Blank Enterprises,
Inc., __ F. Supp. 3d __, 2020 WL 5667766, at *17 (S.D. Fla. Aug.
24, 2020), appeal docketed No. 20-13588 (11th Cir.).
For now, defendants can view this holding as a potentially positive
development in that they will not necessarily be kicked to state
court if they defeat class certification (though to be sure, some
defendants would prefer a dismissal -- and possible re-filing in
state court -- after a denial of class certification rather than
continuing in federal court). And it appears that the Eleventh
Circuit will have the opportunity to reinforce its scant holding
when it disposes of the Ohio State Troopers appeal in the coming
months.
One other result of the Cherry decision: the Eleventh Circuit has
now issued multiple important decisions modifying past circuit
decisions in just the last few months (the other being Johnson v.
NPAS Solutions, 975 F.3d 1244 (11th Cir. 2020). Cherry further
solidifies the fact that the Eleventh Circuit is a circuit in flux
with regard to class actions and one to watch for further class
action developments going forward. [GN]
EASTERN MUSHROOM: Wins Partial Summary Judgment in Winn-Dixie Suit
------------------------------------------------------------------
In the case, WINN-DIXIE STORES, INC., et al., Plaintiffs v. EASTERN
MUSHROOM MARKETING COOPERATIVE, et al., Defendants, Case No.
15-6480 (E.D. Pa.), Judge Berle M. Schiller of the U.S. District
Court for the Eastern District of Pennsylvania granted M. Cutone
Mushroom Co., Inc.'s Motion for Partial Summary Judgment.
The Eastern Mushroom Marketing Cooperative ("EMMC") and its members
and affiliates--including Defendant Cutone--are accused of
unlawfully colluding to inflate the price of fresh agaricus
mushrooms. The case involves alleged price-fixing and supply
control in the market for fresh agaricus mushrooms. The Plaintiffs
seek damages from all the Defendants, including Cutone, for their
payment of artificially inflated prices for mushrooms as a result
of a conspiracy among the EMMC and its members. The Defendants
allegedly agreed to inflate the price of mushrooms by setting
minimum prices and decommissioning various mushroom farms in order
to reduce mushroom supply.
The Plaintiffs assert that Cutone was an EMMC member during the
conspiracy period, Jan. 1, 2001 through Dec. 31, 2008. They allege
that Cutone specifically participated in the alleged conspiracy by:
(1) agreeing to form and join the EMMC; (2) attending numerous EMMC
meetings to discuss mushroom prices and agreeing to set minimum
prices; (3) complying with EMMC's minimum pricing policy; (4)
attending an EMMC meeting to discuss controlling the supply of
mushrooms; and (5) agreeing to pay an assessment and to charge each
EMMC member an assessment in furtherance of supply control.
Cutone does not dispute that it joined the EMMC by signing a
membership agreement in January 2001. However, it argues that it
communicated its resignation from the EMMC effective Sept. 1, 2002,
thereby withdrawing from the alleged anti-competitive conspiracy.
Mario Cutone, Jr., President of Cutone Mushroom, sent Cutone's
first letter of resignation to the EMMC on March 4, 2002. In
addition to informing the EMMC of Cutone's termination of
membership, the letter stated: "Due to current circumstances we can
no longer be bound to the rules and regulations of the cooperative.
Although we will not be members, we fully intend to adhere to the
pricing structure unless we are forced to alter it by other
growers." The letter also sought return of Cutone's $5,000 escrow
and $100,000 balance of the capital assessment.
Mario Cutone, Jr. submitted a second letter of resignation to the
EMMC on May 20, 2002. The second letter of resignation stated that
Cutone was terminating its membership with EMMC, and again included
the statement: "Due to current circumstances we can no longer be
bound to the rules and regulations of the cooperative." The May 20
letter did not include any reference to an intent to adhere to the
minimum pricing structure or request any return of funds.
Mario Cutone, Jr. submitted a third letter of resignation to EMMC
on June 19, 2002. The third letter of resignation included
identical language to the second letter, except that it also
requested that EMMC, "send an acknowledgment for the termination of
our membership."
On the same date Cutone sent its third letter of resignation, the
counsel for EMMC sent a letter to Mario Cutone acknowledging
Defendant Cutone's "notice, given prior to June 15, 2002, of your
desire to withdraw as a member of the EMMC." The EMMC letter
stated that Cutone's termination of membership in the EMMC was
effective Sept. 1, 2002, pursuant to the terms of EMMC Membership
Agreement. The EMMC letter further stated that Cutone's membership
in the EMMC remained valid until Sept. 1, 2002, and that it
remained "responsible as a member as per all terms of the
Membership Agreement and Bylaws and all policies adopted
thereunder."
After its resignation from the EMMC, Cutone did not consider itself
bound by the EMMC minimum pricing requirements, nor did the EMMC or
its members ask Cutone to continue to adhere to the EMMC's minimum
pricing policy. Cutone seeks partial summary judgment on the
grounds that it withdrew from the EMMC as of Sept. 1, 2002, and
therefore, cannot be liable to the Plaintiffs for any damages
incurred as a result of purchases after that date.
In opposition, the Plaintiffs argue that Cutone's withdrawal was
ineffective because Cutone intended to continue complying with the
EMMC's minimum pricing policy after it resigned from the EMMC.
They cite to the March 4, 2002 resignation letter as evidence of
the intent, as well as the class action deposition testimony of
Michael Cutone, who acted as the Rule 30(b)(6) witness for
Defendant Cutone.
Cutone filed a Reply Memorandum which included the Affidavit of
Mario Cutone, III in Support of the Motion for Partial Summary
Judgment. According to Mario Cutone's affidavit, he and his
father, Mario Cutone, Jr., who is now deceased, ran the business of
Defendant Cutone, decided to join the EMMC, and set the price of
the mushrooms that Cutone sold to retail and food service
customers. Michael Cutone ran the family's mushroom growing
operation, M&V Enterprises, Inc. Mario Cutone, III and his father
"never had any intention to follow EMMC pricing policies following
Cutone's resignation from EMMC."
Before Sept. 1, 2002, Mario Cutone, III and his father had received
the EMMC minimum price list on a regular basis. After Sept. 1,
2002, they no longer received the minimum price list from EMMC and
did not learn about the EMMC minimum price list indirectly from any
other source. As a result, Mario Cutone, III and his father "never
followed EMMC prices after Sept. 1, 2002," because they were "no
longer under any obligation to attempt to do so," and they "did not
know what those prices were." Mario Cutone, III and his father
"had no further communication from EMMC after Sept. 1, 2002."
Judge Schiller will grant Cutone's partial motion for summary
judgment because he finds that Cutone severed ties from the EMMC
effective Sept. 1, 2002 and ceased to act in furtherance of the
EMMC's goals after its resignation. However, he cannot determine
on the record before him whether Cutone is liable for any damages
for the Plaintiffs' purchases after Sept. 1, 2002. In order to
determine the scope of Cutone's liability for damages, the
Plaintiff will bear the burden at trial of proving what damages are
attributable to conduct of the conspiracy prior to Cutone's
withdrawal.
For the foregoing reasons, Judge Schiller granted Defendant Cutone
Mushroom's Motion for Partial Summary Judgment. An Order
consistent with this Memorandum will be docketed separately.
A full-text copy of the Court's Feb. 5, 2021 Memorandum is
available at https://tinyurl.com/39glvto4 from Leagle.com.
ENDO INT'L: Bucks County ERF Named Class Action Lead Plaintiff
--------------------------------------------------------------
Peter Blanchard, writing for Patch, reports that the Bucks County
Employees' Retirement Fund was named the leader plaintiff in a
federal securities class action case filed on behalf of investors
in Malvern-based pharmaceutical giant Endo International following
an order by U.S. District Court Judge Michael Baylson.
The lawsuit alleges that the company committed securities fraud by
engaging in inherently risky and unstable generic drug pricing
practices and failing to disclose those practices and other key
information to investors.
Lawrence Stengel, former Chief Judge of the U.S. District Court for
the Eastern District of Pennsylvania, to serve as lead counsel in
the case. Bucks County Solicitor Joe Khan and First Assistant
County Solicitor Amy Fitzpatrick will handle the bulk of the
day-to-day work in the litigation, county officials said.
In a memorandum accompanying his order, Baylson expressed
dissatisfaction with the previous lead plaintiff and counsel in the
case, strongly indicating a need for new leadership on behalf of
the plaintiffs.
"Knowing Mr. Stengel for many years, this Court is quite sure that
his performance as Lead Counsel will be a benefit to the class,
whether win, lose or draw," the judge wrote.
Attorneys for the Bucks County Employees Retirement Fund contended
in a motion filed last month that the fund should be named lead
plaintiff in part because its losses, estimated at $800,000, were
the largest among all of the plaintiffs.
"We're pleased that, notwithstanding Endo's opposition, the Court
chose Bucks to lead the fight against this pharmaceutical giant,"
said County Controller Neale Dougherty, who will testify in the
litigation as the chief fact witness for the Bucks County
Retirement Board. "Bucks County has a significant interest in
holding Endo accountable for the harm that its generic drug pricing
practices caused to the retirement fund, our fellow shareholders,
and the community as a whole."
The securities class action by the retirement fund follows an
earlier lawsuit filed on behalf of Bucks County against related
Endo entities and other pharmaceutical companies for their alleged
misconduct in creating a nationwide opioid epidemic. That
litigation is pending in Pennsylvania state court.
The retirement board, composed of Dougherty, County Treasurer Kris
Ballerini and Bucks County Commissioners Diane M. Ellis-Marseglia,
Bob Harvie and Gene DiGirolamo, unanimously authorized the
litigation in executive session Jan. 4, and Judge Baylson
authorized the filing of the lead plaintiff motion on Jan. 7. [GN]
EQT CORPORATION: Certification of Real Property Owners Class Sought
-------------------------------------------------------------------
In the class action lawsuit captioned as SBURY, ET AL., v. EQT
CORPORATION, ET AL., Case No. 2:18-cv-01005-CB (W.D. Pa.), the
Plaintiff asks the Court to enter an order:
1. certifying the class of representatives consisting of:
"all persons and/or entities that own and/or owned real
property -- and/or natural gas storage rights to real
property -- located within the certificated boundaries of
one or more of the Gas Storage Fields for any period of
time not before Defendants’ inception of the respective
gas storage field, but to whom the Defendants have and had
failed to compensate for natural gas storage rights within
the respective field(s) for the entirety of time of real
property or natural gas rights ownership;"
2. appointing Domenic Laudato Jr., as class representative;
and
3. certifying the defined class under Rule 23.
According to the complaint, at issue in this litigation is the
space on the putative class' properties located in large,
naturally-occurring, underground formations, which the Defendants
have occupied and profited from by storing natural gas without
prior consent or compensation. These caverns, located between
2,100-2,900 feet below the surface, serve as massive underground
tanks which operators can withdraw from, and inject into, as the
market for natural gas fluctuates. Indeed, the fields at issue in
this lawsuit are used continuously and regularly by the
Defendants.
EQT is an American energy company engaged in hydrocarbon
exploration and pipeline transport. It is headquartered in EQT
Plaza in Pittsburgh, Pennsylvania.
A copy of the Plaintiff's motion to certify class dated Feb. 5,
2020 is available from PacerMonitor.com at http://bit.ly/3dm3pX4at
no extra charge.[CC]
The Plaintiffs are represented by:
Jordan H. Walker, Esq.
SEVER STOREY, LLP
881 Third Ave. SW, Suite 101
Carmel, IN 46032
Telephone: 317-575-9942
- and -
Elizabeth M. Tarasi, Esq.
Louis M. Tarasi, Jr., Esq.
TARASI & TARASI P.C.
510 Third Avenue
Pittsburgh, PA 15219
EQUIFAX INC: Data Breach Class Suit Settlement Approval Challenged
------------------------------------------------------------------
Alison Frankel, writing for Reuters, reports that Shiyang Huang is
not a lawyer. Nor is he a professional objector who makes a living
from demanding payments to drop filing vexatious objections to
class action appeals. By his account, he's just a pro se litigant
from Topeka who doesn't think federal courts should be called upon
to adjudicate claims by people who haven't been harmed.
And, suddenly, his arguments could affect the outcome of the
biggest data breach settlement in U.S. history.
I'm speaking, of course, of Equifax's $380.5 million deal, which
addressed a 2017 hack of the credit rating firm that compromised
personal information about nearly 150 million Americans. Class
counsel from Doffermyre Shields Canfield & Knowles, DiCello Levitt
Gutzler and Stueve Siegel Hanson filed a 575-page amended complaint
in the case in 2018 on behalf of 96 named plaintiffs. U.S. District
Judge Thomas Thrash of Atlanta allowed some of the class claims to
proceed in a 2019 decision (362 F.Supp.3d 1295). The class reached
a settlement that class counsel have described as the most
comprehensive recovery ever achieved for data breach victims,
including cash payments to some plaintiffs and credit monitoring
said to be worth billions of dollars. Judge Thrash approved the
deal in Dec. 2019 (2020 WL 256132).
Huang is one of six objectors who asked the 11th U.S. Circuit Court
of Appeals to review Judge Thrash's approval. His appellate brief
principally argued that the class plaintiffs failed to establish
their constitutional right to sue under Article III because they
did not allege a concrete injury from the exposure of their data.
Huang cited the U.S. Supreme Court's rulings in Clapper v. Amnesty
International (133 S.Ct. 1138) and Spokeo v. Robins (2016 WL
2842447), which, as you know, made it tougher for plaintiffs to
establish standing for prospective injuries or mere statutory
violations. Huang noted that after the Clapper decision, several
appellate circuits have ruled that data breach victims can't
satisfy Article III requirements by alleging they're at increased
risk of identity theft.
The Equifax trial judge, Huang said, never even grappled with the
Article III issue. Judge Thrash's ruling on Equifax's dismissal
motion said in a footnote that the company had not contested
plaintiffs' constitutional standing, arguing instead that the class
failed to allege a tort claim because plaintiffs did not plead a
legally cognizable harm. Judge Thrash implied that Article III
standing could be revisited at the class certifications stage of
the case - but that never happened because the case settled before
the class was certified. Huang argued in his 11th Circuit brief
that the appeals court cannot address the merits of the settlement
before answering the threshold question of plaintiffs' right to
sue.
Class counsel said in their response brief that their complaint
established plaintiffs' Article III standing: Class
representatives, they said, claimed to have spent time and money to
redress identity theft and fraud and to monitor their credit
reports. The class also alleged imminent risk of future identity
theft. "These allegations," the class brief said, "readily meet the
injury-in-fact requirement."
But they don't, under current 11th Circuit law. Last fall, when
Huang and Equifax filed their briefs, the 11th Circuit had not
published a definitive decision on standing for plaintiffs in data
breach suits. Now it has. The appeals court held in Tsao v. Captiva
MVP (2021 WL 381948) that data breach victims must show more than
an increased risk of identity theft or costs incurred to address
that increased risk in order to establish their constitutional
right to sue. Tsao, in other words, seems to undermine both of the
justifications for standing that class counsel asserted in their
brief to the 11th Circuit.
Class counsel Norman Siegel of Stueve Siegel said, however, that
the operative class complaint contains allegations that will easily
satisfy the 11th Circuit's newly-articulated standard. "Unlike
Tsao, highly confidential personal information including social
security numbers were compromised in the Equifax breach," Siegel
said in an email. "Moreover, unlike Tsao, there are several
plaintiffs that alleged identity theft and fraud as a result of the
Equifax breach."
Equifax counsel David Balser of King & Spalding said the company
does not comment on pending cases.
Another Equifax objector, Ted Frank of the Hamilton Lincoln Law
Institute, addressed the Tsao ruling in a letter to the 11th
Circuit on Feb. 5. Frank, who is contesting the merits of the
Equifax settlement, told the appeals court that the Tsao opinion
"expressly rejects" the standing arguments that class counsel cited
in their appellate brief. Frank said he believes, however, that the
class can establish standing by alleging the theft of their social
security numbers -- and that the 11th Circuit can permit plaintiffs
to amend their pleadings without the delay of remand back to Judge
Thrash. (Frank and class counsel have been in a bitter war in this
case, so it was a bit of a surprise to see Frank propose an easy
fix on the standing issue.)
Huang told me on Feb. 8 that he's gratified the 11th Circuit's Tsao
decision has forced the issue of standing in the Equifax appeal,
adding jokingly that he'd be happy to substitute the appeal opinion
for his brief. "Nobody wanted to talk about (standing) but now they
have to," Huang said. He said in a follow-up email that under 11th
Circuit's en banc decision last October in Muransky v. Godiva (905
F.3d 1200), in which the appeals court dismissed a class action
because plaintiffs failed to establish standing, the Equifax case
should be tossed. "Otherwise, it'll be a waste of time and taxpayer
money for courts to entertain nonjusticiable cases for years,"
Huang said.
The Equifax appeal is set for oral argument on April 20. [GN]
ESSA BANCORP: Bid to Dismiss Sherman Act Claim Pending
------------------------------------------------------
ESSA Bancorp, Inc. said in its Form 10-Q Report filed with the
Securities and Exchange Commission on February 9, 2021, for the
quarterly period ended December 31, 2020, that the motion to
dismiss the Sherman Act claim, is still pending.
On May 29, 2020, ESSA Bank & Trust was named as a defendant in an
action commenced by three plaintiffs who will seek to pursue the
action as a class action on behalf of the entire class of people
similarly situated.
The plaintiffs allege that a bank previously acquired by ESSA
Bancorp received unearned fees and kickbacks from a different title
company than the one involved in the previously discussed
litigation in the process of making loans.
The original complaint alleged violations of the Real Estate
Settlement Procedures Act, the Sherman Act, and the Racketeer
Influenced and Corrupt Organizations Act (RICO).
The plaintiffs filed an Amended complaint on September 30, 2020
that dropped the RICO claim, but they are continuing to pursue the
Real Estate Settlement Procedures Act and Sherman Act claims.
The Bank moved to dismiss the Sherman Act claim on October 14,
2020, and that motion is now fully briefed and awaiting a decision
from the court.
The Bank intends to defend against such allegations.
To the extent that this matter could result in exposure to the
Bank, the amount of such exposure cannot currently be estimated.
ESSA Bancorp, Inc. operates as the holding company for ESSA Bank &
Trust that provides a range of financial services to individuals,
families, and businesses in Pennsylvania. ESSA Bancorp, Inc. was
founded in 1916 and is based in Stroudsburg, Pennsylvania.
ESSA BANCORP: Mediation Ongoing in Suit Against Subsidiary
----------------------------------------------------------
ESSA Bancorp, Inc. said in its Form 10-Q Report filed with the
Securities and Exchange Commission on February 9, 2021, for the
quarterly period ended December 31, 2020, that mediation is ongoing
in the putative class action suit filed against ESSA Bank & Trust
related to the Real Estate Settlement Procedures Act (RESPA)
ESSA Bank & Trust was named as a defendant in an action commenced
on December 8, 2016 by one plaintiff who will also seek to pursue
this action as a class action on behalf of the entire class of
people similarly situated.
The plaintiff alleges that a bank previously acquired by ESSA
Bancorp received unearned fees and kickbacks in the process of
making loans, in violation of the Real Estate Settlement Procedures
Act.
In an order dated January 29, 2018, the district court granted the
Bank's motion to dismiss the case. The plaintiff appealed the
court's ruling. In an opinion and order dated April 26, 2019, the
appellate court reversed the district court's order dismissing the
plaintiff's case against the Bank, and remanded the case back to
the district court in order to continue the litigation. The
litigation is now proceeding before the district court.
On December 9, 2019, the court permitted an amendment to the
complaint to add two new plaintiffs to the case asserting similar
claims. On May 21, 2020, the court granted the plaintiffs' motion
for class certification.
The case is currently stayed while the parties explore the
possibility of a negotiated resolution to the case. In an order
dated November 24, 2020, the Court referred the case to Magistrate
Judge Timothy J. Sullivan to assist in mediation efforts.
ESSA Bancorp said, "If these discussions are not successful, the
Bank will continue to defend against such allegations. To the
extent that this matter could result in exposure to the Bank, the
amount of such exposures cannot currently be estimated.
ESSA Bancorp, Inc. operates as the holding company for ESSA Bank &
Trust that provides a range of financial services to individuals,
families, and businesses in Pennsylvania. ESSA Bancorp, Inc. was
founded in 1916 and is based in Stroudsburg, Pennsylvania.
FCA US: Agreed Conference & Status Report Order in Garlough OK'd
----------------------------------------------------------------
In the case, BRIAN GARLOUGH, Plaintiff v. FCA US LLC, a Delaware
limited liability company; and DOES 1 through 250, inclusive,
Defendants, Case No. 2:20-cv-01879-JAM-AC (E.D. Cal.), Judge John
A. Mendez of the U.S. District Court for the Eastern District of
California entered the stipulated order on Rule 26(f) conference
and Joint Status Report.
On Sept. 18, 2020, the Court entered an order requiring the parties
to confer pursuant to Federal Rule of Civil Procedure 26(f) by Nov.
17, 2020, and to submit a Joint Status Report.
On Nov. 10, 2020, Plaintiff Garlough filed a Second Amended Class
Action Complaint, which named as new defendants Lithia DMID, Inc.
and Lithia Motors, Inc.
On Nov. 18, 2020, the Court extended the deadline for the parties
to conduct their Rule 26(f) conference and submit a Joint Status
Report until 45 days after Defendants Lithia DMID and Lithia Motors
appeared in the case.
On Dec. 8, 2020, Defendant FCA US filed Motions to Dismiss pursuant
to Rule 12(b)(2) and Rule 12(b)(6), and on Dec. 22, 2020,
Defendants Lithia DMID and Lithia Motors filed Motions to Dismiss
pursuant to Rule 12(b)(2) and Rule 12(b)(6). All briefing on those
motions is complete.
An extension of the deadline for the parties to conduct Rule 26(f)
conference and to submit a Joint Status Report until 10 days after
the Court rules on Defendants Lithia DMID, Lithia Motors, and FCA
US' Motions to Dismiss will avoid any waste and will allow the
parties to conduct a more meaningful conference and Joint Status
Report.
It is stipulated by and between the Plaintiff and Defendants Lithia
DMID, Lithia Motors, and FCA US, by and through their respective
counsel, and subject to Court approval, that the deadline for the
parties to confer pursuant to Federal Rule of Civil Procedure 26(f)
and to submit a Joint Status Report set forth in the Court's Nov.
18, 2020 Order is vacated; and that all the parties will confer
pursuant to Federal Rule of Civil Procedure 26(f) and submit a
Joint Status Report within 10 days of the Court's ruling on the
Defendants' Motions to Dismiss.
Having reviewed the Stipulation, and good cause appearing
therefore, Judge Mendez so ordered.
A full-text copy of the Court's Feb. 5, 2021 Stipulation & Order is
available at https://tinyurl.com/15y71tvh from Leagle.com.
FEDEX CORP: Bondz Dismissed From Overpeck Class Suit for Misjoinder
-------------------------------------------------------------------
In the case, HERMAN OVERPECK, et al., Plaintiffs v. FEDEX
CORPORATION, et al., Defendants, Case No. 18-cv-07553-PJH (N.D.
Cal.), Judge Phyllis J. Hamilton of the U.S. District Court for the
Northern District of California granted Defendant Bondz, Inc.'s
motion for judgment on the pleadings and dismissal for misjoinder.
The case is a putative class action brought by current or former
long-haul and local delivery drivers who provided transportation
and delivery services in California for defendants FedEx Ground
Package System, Inc. and FedEx Corp. The Plaintiffs allege that
FedEx's labor force was previously made up of individual drivers
that FedEx Ground hired directly and labeled as independent
contractors.
Following litigation challenging the "independent contractor"
classification, the Plaintiffs allege that FedEx pivoted to an
"independent service provider" ("ISP") model. They allege that the
ISPs are "little more than job placement outfits," and that the ISP
model is "just a continuation of FedEx's continuing practice of
misrepresenting and obscuring the true relationship between FedEx
and its drivers: that of employer-employee."
The Plaintiffs initially filed suit against only the FedEx
Defendants, asserting claims for failure to pay for all hours
worked, failure to provide meal and rest periods, failure to pay
overtime, and failure to provide accurate wage statements, among
other claims. On Feb. 14, 2020, FedEx Ground filed a motion to
join the ISPs as necessary parties under Federal Rule of Civil
Procedure 19. The motion was opposed by the Plaintiffs.
On April 1, 2020, having considered the arguments by FedEx and by
the Plaintiffs, the Court granted FedEx's motion and joined the
ISPs as necessary parties under Rule 19(a)(1)(A). On May 26, 2020,
the Plaintiffs filed an amended complaint alleging the same causes
of action and adding the ISPs as Defendants.
The present motion was filed by Bondz, one of the ISPs added to the
operative complaint. Bondz seeks dismissal on two independent
grounds. First, Bondz argues that it is entitled to judgment on
the pleadings under Rule 12(c). Second, it argues that it was
misjoined to the case, as it is not a necessary party.
At the time of FedEx's original motion for joinder, the ISPs were
not yet in the case. As a result, during consideration of FedEx's
Rule 19 motion, the Court did not have the benefit of the ISPs'
arguments for or against joinder. Bondz's present motion is the
first time that the Court has been presented with the ISPs' own
arguments regarding joinder.
Having now considered the ISPs' arguments,Judge Hamilton finds that
the ISPs were misjoined. The Plaintiffs seek no relief from the
ISPs in the action. Nor does FedEx seek any relief from the ISPs
in the action. Accordingly, she concludes that she can "accord
complete relief among existing parties" even in the absence of the
ISPs.
In the Court's previous order, it did not address the issue of
joinder under Rule 19(a)(1)(B). For Rule 19(a)(1)(B) to apply, the
joined party must "claim an interest relating to the subject matter
of the action." Through its motion, Bondz has disclaimed any
interest in the action. Thus, there being no basis for joinder of
Bondz under either Rule 19(a)(1)(A) or Rule 19(a)(1)(B), Judge
Hamilton granted Bondz's motion to dismiss for misjoinder, and
dismissed Bondz from the action. The Judge need not reach Bondz's
alternate basis for relief under Rule 12(c).
As to the other ISPs named as Defendants, Judge Hamilton gives them
14 days from the date of her Order to file a declaration claiming
or disclaiming an interest relating to the subject matter of the
action, and advising whether dismissal would impede their ability
to protect their interest.
The Judge also notes that another ISP, Dane Logistics, has filed a
motion to dismiss for lack of jurisdiction. Dane's motion would be
mooted if Dane is ultimately dismissed for misjoinder under Rule
21. Accordingly, she will defer ruling on Dane's motion until
after Dane has filed a declaration responsive to the Order.
A full-text copy of the Court's Feb. 5, 2021 Order is available at
https://tinyurl.com/1vx7j3k1 from Leagle.com.
FIRST STUDENT: May 20 New Deadline for Class Status Bid
--------------------------------------------------------
In the class action lawsuit captioned as BARBARA GALVAN and CYNTHIA
PROVENCIO, on behalf of themselves, all others similarly situated,
v. FIRST STUDENT MANAGEMENT, LLC, a Delaware limited liability
company; FIRST STUDENT, INC., a Delaware corporation; FIRSTGROUP
AMERICA, INC., a Delaware corporation; FIRST TRANSIT, INC., a
Delaware corporation; and DOES 1 through 50, inclusive, Case No.
4:18-cv-07378-JST (N.D. Calif.), the Parties ask the Court to enter
an order granting their joint stipulation seeking to further
continue the deadlines for the class certification briefing
schedule as follows:
Current Deadline New Deadline
Motion for Class Feb. 18, 2021 May 20, 2021
Certification:
Opposition to April 15, 2021 July 22, 2021
Motion for Class
Certification:
Reply to Opposition May 12, 2021 Aug. 26, 2021
to Motion for Class
Certification:
On April 22, 2020, the Plaintiffs filed their Consolidated Class
Action Complaint alleging that Defendants failed to provide legally
required meal breaks and rest breaks; pay all hourly wages;
indemnify; provide accurate itemized wage statements; and timely
pay final wages at the time of separation. The Plaintiff also
alleged that the Defendants engaged in unfair competition; and
Plaintiffs seek civil penalties under the California Private
Attorneys General Act of 2004.
A copy of the Parties motion dated Feb. 5, 2020 is available from
PacerMonitor.com at https://bit.ly/3alAPmR at no extra charge.[CC]
The Barbara Galvan Plaintiff is represented by:
Shaun Setareh, Esq.
William M. Pao, Esq.
Nolan Dilts, Esq.
SETAREH LAW GROUP
9665 Wilshire Blvd., Suite 430
Beverly Hills, CA 90212
Telephone: (310) 888-7771
Facsimile: (310) 888-0109
E-mail: william@setarehlaw.com
nolan@setarehlaw.com
shaun@setarehlaw.com
Attorneys for the Plaintiff Cynthia Provencio, are:
Joseph Lavi, Esq.
Vincent C. Granberry, Esq.
Anwar D. Burton, Esq.
LAVI & EBRAHIMIAN, LLP
8889 West Olympic Boulevard, Suite 200
Beverly Hills, CA 90211
Telephone (310) 432-0000
Facsimile (310) 432-0001
E-mail: jlavi@lelawfirm.com
vgranberry@lelawfirm.com
aburton@lelawfirm.com
The attorneys for the Defendants First Student Management, LLC,
FirstGroup America, Inc. and First Transit, Inc., are:
David J. Dow, Esq.
LITTLER MENDELSON, P.C.
501 W. Broadway, Suite 900
San Diego, CA 92101
Telephone: (619) 232-0441
Facsimile: (619) 232-4302
E-mail: ddow@littler.com
FIRSTSOURCE SOLUTIONS: 13 Opt-in Plaintiffs in Bernardez Dismissed
------------------------------------------------------------------
In the case, ALAN BERNARDEZ AND TAWANNA PITTMAN, individually and
on behalf of a class of persons similarly situated, Plaintiffs v.
FIRSTSOURCE SOLUTIONS USA, LLC D/B/A MEDASSIST, Defendant, Civil
Action No. 3:17-cv-613-RGJ (W.D. Ky.), Judge Rebecca Grady Jennings
of the U.S. District Court for the Western District of Kentucky,
Louisville Division, entered her Memorandum Opinion & Order:
(i) granting in part and denying in part the Plaintiffs'
Motion to Approve Filing of Plaintiffs' First Amended
Complaint, For Equitable Tolling, and To Sever and
Consolidate Missouri Opt-in Plaintiffs' Claims;
(ii) granting in part and denying in part the Defendant's
Motion to Strike Five Opt-In Plaintiffs Outside the
Conditionally Certified Collective;
(iii) denying the Defendant's Motion for Leave to File a
Sur-Reply; and
(iv) granting the Defendant's Motion to Dismiss Certain Opt-in
Plaintiffs for Failure to Respond to Discovery Requests.
In October 2017, Plaintiffs Bernardez and Pittman sued the
Defendant, seeking relief for alleged violations of Section 16(b)
of the Fair Labor Standards Acts ("FLSA").
Three months later, the Plaintiffs moved for conditional class
certification of a nationwide collective of "all current and former
Patient Service Representatives, Floaters/Trainers, and/or Team
Leads employed by Defendant Firstsource Solutions USA, LLC d/b/a
MedAssist at any time during the period of three years preceding
the commencement of the action through the date on which
conditional certification is granted."
The Plaintiffs' motion became ripe Jan. 31, 2018. In April 2018,
then-Chief Judge Joseph McKinley transferred the case and others to
Judge Jennings creating a new docket in the Western District of
Kentucky.
On Sept. 12, 2019, the Court granted the Plaintiffs' motion in part
and conditionally certified a collective of "all current and former
Patient Service Representatives, Floaters/Trainers, and/or Team
Leads employed by Defendant Firstsource Solutions USA, LLC d/b/a
MedAssist in the Durham, North Carolina and Birmingham, Alabama
regions at any time from Oct. 4, 2014 through present."
A few weeks later, the Defendant moved the Court to alter or amend
its order to require Notice be sent to the applicable employees who
worked for the Defendant in the enumerated regions during the
three-year period immediately preceding the mailing date of the
notice since that period of time was the maximum limitations period
available under the FLSA. The parties agreed to and the Court
approved a joint stipulation modifying the scope of individuals who
would receive the notice to the applicable employees in the
relevant regions `at any time from Sept. 12, 2016 through the
present.
In November 2019, the Defendant moved to amend its answer to assert
an additional defense related to arbitration agreements signed by
some opt-in plaintiffs. The Plaintiffs did not object. The
Defendant then moved to dismiss certain opt-in plaintiffs who were
subject to arbitration agreements. In February 2020, the parties
agreed and the Court approved a joint stipulation "in which the
Defendant agreed to withdraw its motion to dismiss the Arbitration
Plaintiffs, in exchange for the Plaintiffs agreeing to withdraw the
consent forms of the Arbitration Plaintiffs and dismiss the
Arbitration Plaintiffs' FLSA claims."
In February 2020, Jana Brown sued the Defendant, seeking relief for
alleged violations of Section 16(b) of the FLSA, and Missouri
Minimum Wage Law. The case, Brown v. Firstsource Solutions USA,
LLC, No. 3:20-cv-00099-DJH, is pending in another court in the
district. In Brown, the Plaintiffs' counsel asserts FLSA
collective claims on behalf of "all Patient Service
Representatives, Floaters/Trainers, and/or Team Leads employed by
Defendant in any regions in the United States other than the
Durham, North Carolina and Birmingham, Alabama" regions certified
in the action.
In March 2020, the Court granted the Defendant's motion to amend to
its answer. Less than 21 days later, the Plaintiffs moved to amend
their complaint, for equitable tolling, and to sever and
consolidate the Missouri opt-in plaintiffs' claims. The
Plaintiffs' proposed amended complaint adds: (1) a FLSA
"straight-time-for-overtime" claim; (2) California state law claims
of failure to pay minimum wages, failure to pay overtime wages,
failure to pay wages to discharged and quitting employees, failure
to timely provide code-compliant wage statements, and unlawful and
unfair business practices; (3) Nevada state law claims of failure
to pay wages and overtime; and (4) a Rule 23 class action premised
on California state law and one premised on Nevada state law.
In addition to responding, the Defendant moved to strike five
opt-in plaintiffs, moved to dismiss 10 others, and moved for leave
to file a sur-reply.
As to amendment, Judge Jennings notes that the Defendant filed its
Answer on Nov. 3, 2017, triggering the 21 days to amend as a matter
of right. Because the Plaintiffs moved to amend in April 2020, far
outside the 21-day window, they are not entitled to amend as a
matter of right. This alone, however, is not a sufficient reason
to deny the Plaintiffs' request. She holds that the Defendant has
not established that the Plaintiffs acted in bad faith, and there
have not been repeated failures to cure deficiencies by previous
amendments. For these reasons, the Judge finds that the Plaintiffs
may amend their complaint.
As to equitable tolling, the Plaintiffs argue that despite their
"diligent efforts" they faced extraordinary circumstances beyond
their control, as the Certification Motion was sub judice until
September 12, 2019, approximately 20 months. Until the
certification of the collective and the issuance of notice, the
Opt-in Plaintiffs had no actual or constructive notice of the
action or how to join it otherwise they likely would have chosen to
file their consents forms sooner to toll the statute of limitations
individually.
Judge Jennings agrees with the Plaintiffs. She finds that it is
reasonable that potential opt-in plaintiffs who had not yet
received notice of the action would be ignorant of the filing
deadline. For these reasons, she finds that the factors favor
tolling the FLSA's statute of limitations for the identified opt-in
plaintiffs. Having found that it is appropriate to toll the FLSA's
statute of limitations for the identified opt-in plaintiffs, she
decides when to begin the tolling period.
Based on the circumstances, the equitable tolling factors, and the
district average, the Judge tolls the statute of limitations for
the identified opt-in plaintiffs from June 19, 2018 until Sept. 12,
2019 -- 450 days. Tolling the limitations period in this way more
closely comports with the regular course of litigation and reflects
the lapse of time that the FLSA's opt-in mechanism necessarily
involves, she says.
The Plaintiffs move the Court to sever Nancy Palma, Tammy Virgin,
and Deanna Marroquin ("Missouri opt-in plaintiffs") and consolidate
their claims with the Brown action. The Defendant objects, moves
to strike Nancy Palma, Tammy Virgin, Deanna Marroquin, Bridget
Morris, and Shannon Proffitt; and moves to dismiss Loretta
Arguello, Rollace Burton, Gail Greene, Emily Holland, Jamie
Marquez, Melissa Monroe, Bridget Morris, Jada Nicholson, Veronica
Robinson, and Temisha Tyree.
Judge Jennings begins by addressing the Defendant's motion to
dismiss. The Defendant argues that these opt-in plaintiffs should
be dismissed because they failed to timely respond to discovery
requests. The Plaintiff does not object to the Court dismissing
these opt-in plaintiffs without prejudice. Because the Defendant's
motion is unopposed, the Judge grants it. She dismisses without
prejudice Loretta Arguello, Rollace Burton, Gail Greene, Emily
Holland, Jamie Marquez, Melissa Monroe, Bridget Morris, Jada
Nicholson, Veronica Robinson, and Temisha Tyree.
As to the remaining contested opt-in plaintiffs (Nancy Palma, Tammy
Virgin, and Deanna Marroquin), the Plaintiffs move the Court to
sever the three Missouri Opt-in Plaintiffs' claims in the action
and consolidate their claims into the Brown action, permitting them
to re-file the same consent forms with the Brown Court, with the
statute of limitations on their FLSA claims remaining tolled as of
the dates their consent forms were filed in the action.
Based on the cited authority--including the lack of binding
authority supporting the Plaintiffs' request--Judge Jennings finds
that dismissal without prejudice is appropriate in the case.
Because she is dismissing these claims without prejudice, the Judge
cannot consolidate them with the Brown action. Nor, even if
severance was appropriate, could the Court consolidate their claims
with the Brown action because the Brown action is not before the
Court.
The Defendant contends that Ms. Proffitt should be stricken because
"the opt-in period in the action expired on Dec. 16, 2019. The
Plaintiffs disagree: Ms. Proffitt timely returned her signed
consent form on Dec. 12, 2019, before the Dec. 16, 2019 postmarked
deadline, by emailing it to the Plaintiffs' counsel's office.
However, due to a clerical error, her consent form was not e-filed
on the docket until March 10, 2020. The Defendant asserts that the
Plaintiffs' explanation is insufficient to excuse the late filing.
Judge Jennings finds that the Plaintiffs have shown good cause for
Ms. Proffitt's three-month delay in filing her opt-in notice.
Second, she finds that the Defendant is not prejudiced because it
will not be substantially affected by the addition of one more
opt-in the Plaintiff to the collective of 43 Plaintiffs. Third,
based on the circumstances in the case, the Judge finds that a
three-month delay is reasonable. Fourth, she finds that permitting
Ms. Proffitt to join the collective action will further judicial
economy because the Court will not be required to supervise and
dispose of a separate, but essentially identical, case. Finally,
the Judge finds that permitting Ms. Proffitt to join the collective
is consistent with the remedial purposes of the FLSA.
For these reasons, and being otherwise sufficiently advised, Judge
Jennings granted in part and denied in part the Plaintiffs' Motion
to Approve Filing of Plaintiffs' First Amended Complaint. The
Clerk is directed to file on the docket the Plaintiffs' First
Amended Complaint, attached as Exhibit 4 to the Motion.
For the identified opt-in plaintiffs, Judge Jennings tolled the
statute of limitations from June 19, 2018 until Sept. 12, 2019.
She granted in part and denied in part the Defendant's Motion to
Strike, denied the Defendant's Motion for Leave, and granted its
Motion to Dismiss.
Opt-in plaintiffs Nancy Palma, Tammy Virgin, Deanna Marroquin,
Loretta Arguello, Rollace Burton, Gail Greene, Emily Holland, Jamie
Marquez, Melissa Monroe, Bridget Morris, Jada Nicholson, Veronica
Robinson, and Temisha Tyree are dismissed without prejudice and
stricken from the case.
A full-text copy of the Court's Feb. 5, 2021 Memorandum Opinion &
Order is available at https://tinyurl.com/147ys9wh from
Leagle.com.
FREEDOM MORTGAGE: Franceski Moved to Eastern District of Virginia
-----------------------------------------------------------------
In the case, BARBARA FRANCESKI, Plaintiff v. FREEDOM MORTGAGE
CORPORATION and NYCB MORTGAGE COMPANY, LLC, Defendants, Civil No.
18-13945 (D.N.J.), Judge Noel L. Hillman of the U.S. District Court
for the District of New Jersey granted Freedom's Motion to Lift
Stay and Transfer.
The lawsuit will be transferred to the U.S. District Court for the
Eastern District of Virginia.
The case concerns an alleged violation of the Real Estate
Settlement Procedures Act of 1974 ("RESPA") and a breach of
contract by Defendants in relation to payment of property taxes.
Freedom previously filed a motion seeking to transfer the matter to
the U.S. District Court for the Eastern District of Virginia. Its
motion was based on the "first-filed rule" and the pendency of two
cases with identical allegations, the Harrell and Chittick Actions,
that were filed prior to the commencement of the action.
Since then, these two related actions have been consolidated in the
Eastern District of Virginia under docket number
1:18-cv-01034-AJT-MSN. In opposition to Freedom's previous motion,
the Plaintiff, in part, argued transfer was improper because in the
Harrell Action Freedom took the position that the Eastern District
of Virginia lacked personal jurisdiction over non-Virginia resident
members of the putative class.
The Court agreed in part with Freedom and held that the first-filed
rule was applicable to the matter. It ultimately found the only
option it had at the moment was to stay the action until the
Eastern District of Virginia decided the personal jurisdiction
issue because transfer of the action, dismissal of the action, and
proceeding with the action were all inappropriate at the moment.
The reasoned that was because none of those actions served the
policy reasons of the first-filed rule. It explained that at its
core, its action is contingent on the Eastern District of
Virginia's decision on personal jurisdiction.
On Nov. 13, 2020, Freedom filed its Notice of Withdrawal and Waiver
of Personal Jurisdiction Argument Concerning Non-Virginia Resident
Putative Class Members in the Consolidated Action. Freedom has
filed the instant motion arguing transfer is now warranted because
the "personal jurisdiction issue has now been resolved in favor of
the Plaintiffs in the Consolidated Action by Freedom's filing of a
waiver and withdrawal of the personal jurisdiction issue."
Freedom's Motion to Lift Stay and Transfer has been fully briefed.
Judge Hillman agrees with Freedom that as long as the personal
jurisdiction is resolved, then the matter should be reopened and
transferred to the Eastern District of Virginia. He further
concludes that Freedom's Waiver resolves the personal jurisdiction
issue. Personal jurisdiction objections can be waived.
Freedom's Waiver states, in relevant part, "Freedom hereby
withdraws and waives the personal jurisdiction arguments that it
made in the Harrell Action, as described above in paragraph 5.
This withdrawal and waiver applies also to the Consolidated Action,
including the Chittick Action. Freedom will not maintain that the
Eastern District of Virginia lacks personal jurisdiction over
non-Virginia resident members of a putative nationwide class."
Judge Hillman opines that the Plaintiff's argument that the motion
is premature because it has not been established whether the Waiver
applies to anyone besides Mr. Harrell is directly inconsistent with
the express language of the Waiver. Moreover, he agrees that the
Plaintiff's reliance on the Cruson v. Jackson National Life
Insurance Co., 954 F.3d 240 (5th Cir. 2020) decision is misplaced
because it does not stand for the proposition that a class-action
defendant may resurrect a personal jurisdiction defense which it
expressly waived at the class-certification stage of the case.
Finally, Judge Hillman also does not find the Plaintiff's citation
to Ford Motor Co. v. Bandemer, 913 N.W.2d 710 (Minn. 2019), cert.
granted Jan. 17, 2020 (No. 19-369) persuasive because the Plaintiff
fails to demonstrate how the Supreme Court's decision in that case
would revoke Freedom's Waiver. The law is clear on the issue: A
party may waive personal jurisdiction objections. Freedom chose to
waive this defense with respect to "non-Virginia resident members
of a putative nationwide class."
Judge Hillman concludes the personal jurisdiction issue that
warranted the Court's previous stay has finally been resolved.
Accordingly, and consistent with the Court's prior Opinion, the
Judge reopened the action and transferred it to the U.S. District
Court for the Eastern District of Virginia.
A full-text copy of the Court's Feb. 5, 2021 Opinion is available
at https://tinyurl.com/l7krbx27 from Leagle.com.
ROBERT A. FAGELLA -- rfagella@zazzali-law.com -- ZAZZALI, FAGELLA &
NOWAK, KLEINBAUM & FRIEDMAN, PC, in NEWARK, NEW JERSEY, Attorney
for Plaintiff Barbara Franceski.
ADRIA MARIE LAMBA -- Adria.Lamba@hklaw.com -- HOLLAND & KNIGHT,
LLP, in PHILADELPHIA, PENNSYLVANIA, Attorney for Defendant Freedom
Mortgage Corporation.
FRONTIER MANAGEMENT: Wright Partly Granted Leave to Amend Complaint
-------------------------------------------------------------------
In the case, JOSHUA WRIGHT, on behalf of himself and all others
similarly situated, Plaintiff v. FRONTIER MANAGEMENT LLC, FRONTIER
SENIOR LIVING LLC, and GH SENIOR LIVING LLC, dba GREENHAVEN ESTATES
ASSISTED LIVING, Defendants, Case No. 2:19-cv-01767-JAM-CKD (E.D.
Cal.), Judge John A. Mendez of the U.S. District Court for the
Eastern District of California granted in part and denied in part
the Plaintiff's Motion for Leave to Amend.
On Sept. 6, 2019, Plaintiff Wright sued the Defendants, on behalf
of himself and other employees, over several of their wage and hour
policies. The Defendants operate a chain of retirement and
assisted living communities. The Plaintiff worked as a medication
technician at one of the assisted living locations in California
from April 12, 2018, until March 15, 2019.
The Plaintiff alleges that the Defendants' wage and hour practices
violate the Fair Labor Standards Act ("FLSA"), and several
provisions of the California Labor Code, and amount to unfair
business practices in violation of the California Business and
Professions Code. He further alleges the Defendants do not permit
meal and rest periods and fail to provide accurate itemized wage
statements and reimburse necessary business expenses as required by
law.
The Plaintiff sued on behalf of himself and class and collective
members for all unpaid wages, compensation, penalties, and other
damages owed. The class members are people who are or have been
employed by Defendants as hourly, non-exempt employees in
California within four years preceding the filing of the original
complaint. The collective members are people who are or have been
employed by Defendants as hourly, non-exempt employees in the
United States at any time within three years preceding the filing
of the stipulated motion for conditional certification. The
stipulated motion for conditional certification was filed on March
13, 2020.
The Plaintiff now requests leave to file an amended complaint to
add: (1) Loretta Stanley, Haley Quam, and Aiesha Lewis as named
plaintiffs; (2) six causes of action for violations of the
Washington Minimum Wage Act and other Washington state laws; (3)
six causes of action for violations of the Oregon Revised Statutes
and other Oregon state laws; and (3) five causes of action for
violations of the Illinois Minimum Wage Law and other Illinois
state laws. He also seeks to clarify the allegations concerning
hours worked off the clock and compensation of putative class and
collective members.
The Defendants oppose amendment, arguing the Plaintiff's proposed
amendments wrongfully use Sept. 6, 2019, the commencement date of
the California Rule 23 class, to relate back and toll the statute
of limitations applicable to the new Washington, Oregon, and
Illinois class claims. They further argue the Plaintiff's proposed
amendments improperly change the start of the FLSA collective
period to the commencement date of the California Rule 23 class.
The Defendants oppose amendment, arguing that amendment would be
futile because the proposed Washington, Oregon, and Illinois class
claims do not relate back to the original complaint and cannot be
tolled to the filing date of the original complaint.
The Plaintiff's original complaint asserts nine causes of action
against the Defendants for violations of FLSA and California law.
His proposed first amended complaint alters the FLSA collective
action to incorporate the new named plaintiffs and their
representative classes and start the collective period on Sept. 6,
2016. As for the class claims, the Plaintiff's proposed first
amended complaint expands them to include seventeen new causes of
action for violations of Washington, Oregon, and Illinois law, and
seeks to relate them back to Sept. 6, 2019.
Judge Mendez finds that the Defendants' argument misses the mark.
That the amended and additional claims should not relate back or be
tolled to the original complaint does not necessarily mean they are
futile. Notably, the Defendants do not argue that, absent relation
back or tolling, the proposed claims would be time-barred. Nor do
they present any other reason why the Court should find the
proposed amendments futile.
The Judge, therefore, grants the Plaintiff leave to amend the
complaint to add Loretta Stanley, Haley Quam, and Aiesha Lewis as
named plaintiffs, include additional class claims under Washington,
Oregon, and Illinois law, and clarify preexisting allegations.
However, the Plaintiff is denied leave to relate back and toll the
statute of limitations applicable to the new class claims to the
filing of the original complaint. The Plaintiff is also denied
leave to begin the FLSA collective period on Sept. 6, 2016.
Next, the Plaintiff's original complaint alleges a FLSA claim and a
class action involving California employees working at California
retirement and assisted living communities where the wage and hour
practices violate several sections of the California Labor Code and
the California Business and Professions Code. His proposed
amendments add three new classes, and several new class claims
alleging violations of the wage and hour laws of other states. In
addition, the proposed first amended complaint asserts a six-year
look back period for the Oregon claims, which reaches farther back
than the original three-year FLSA and four-year California
limitations periods. The Plaintiff argues the Defendants were put
on notice of the new Washington, Oregon, and Illinois class claims
because the original FLSA claim applies to a "nationwide
collective."
Judge Mendez disagrees. He holds that the original pleading did
not provide Defendants with fair notice of the proposed state law
individual and class claims. The Plaintiff does not identify any
authority suggesting that the FLSA and California claims put the
Defendants on notice that they might be sued, in the action, by
different plaintiffs asserting individual and class claims under
the wage-and-hour laws of three additional states.
Accordingly, the Judge says the Plaintiff has not demonstrated fair
notice and relation back is not proper under Rule 15(c)(1)(B).
Moreover, the Plaintiff does not argue that relation back is
appropriate because either Washington, Oregon, or Illinois law
"provides that the applicable statute of limitations allows
relation back." Thus, the Plaintiff is denied leave to amend the
complaint such that the new Rule 23 non-California classes and
non-California state law claims relate back to the original
complaint filed on Sept. 6, 2019. July 8, 2020, the day the
Plaintiff provided the Defendants with the proposed first amended
complaint, will instead define the temporal scope of the
Washington, Oregon, and Illinois classes.
The Defendants also argue that the Plaintiff's proposed amendments
should not be tolled to the filing of the original complaint. The
Plaintiff argues the Court should apply equitable tolling. He
alleges the Defendants specifically agreed to toll the statute of
limitations for these new class claims, but fails to offer the
Court evidence of that. The Plaintiff cites to docket number 56,
however, the docket ends at 55. The Plaintiff's counsel references
a tolling agreement executed on Aug. 7, 2020, but that agreement
expired on Oct. 5, 2020. Accordingly, Judge Mendez declines to
apply equitable tolling to the proposed class claims at this
stage.
Finally, the Defendants argue the Plaintiff's proposed amendments
incorrectly relate the start of the FLSA collective period back to
the filing date of the original complaint on Sept. 6, 2019, such
that the collective period begins on Sept. 6, 2016.
Judge Mendez agrees with the Defendants. Pursuant to 29 Section
U.S.C. 216(b), the parties stipulated to the collective period
beginning "three years prior to the date of filing of stipulated
motion for conditional certification." In doing so, the parties
agreed to override the language of the original complaint, which
did have the collective period beginning three years prior to the
filing of the original complaint. The stipulation was filed on
March 13, 2020. Thus, the collective period begins on March 13,
2017. As a result, the Plaintiff may amend the complaint to
include the start date of the collective period, but that date is
March 13, 2017, unless the parties stipulate otherwise.
For the reasons he set forth, Judge Mendez granted in part and
denied in part the Plaintiff's Motion to Amend. He permitted the
Plaintiff to amend the complaint to add the new named plaintiffs
and their claims, but only to the extent that such claims were
timely as of July 8, 2020. The commencement of the FLSA collective
period should be amended to March 13, 2017. The Plaintiff will
file a First Amended Complaint within 20 of the Order. The
Defendants' responsive pleading is due 20 days thereafter.
A full-text copy of the Court's Feb. 5, 2021 Order is available at
https://tinyurl.com/1wsfg0sc from Leagle.com.
GABRIEL WORTMAN: More People Added as Defendants to Class Action
----------------------------------------------------------------
Canadian Press reports that the families of victims of the 2020
Nova Scotia mass shooting have added the gunman's spouse, her
brother and her brother-in-law as defendants to the original class
action lawsuit against the killer's estate.
Documents filed with the Supreme Court of Nova Scotia on Feb. 5 add
the names of Lisa Banfield, James Blair Banfield and Brian Brewster
in the notice seeking damages for deaths, property destruction and
injuries.
The families' lawyer says in a news release the amendments to the
proposed class action were made following the Dec. 4 criminal
charges laid against the three, alleging they illegally supplied
ammunition to the gunman.
Police have said the alleged ammunition offences occurred in the
month before the April 18-19 killings but that those charged had no
prior knowledge of what the gunman, Gabriel Wortman, intended to
do.
However, Sandra McCulloch, a lawyer for the families, says in a
news release "there is support for possible civil liability between
these parties and the families and individuals we represent," and
she says the step was taken "in order to preserve their rights as
further details emerge."
The statement of claim contains allegations that have not yet been
tested in court.
The court document alleges Lisa Banfield was "aware of and
facilitated Wortman's preparations," including his accumulation of
firearms, ammunition, police paraphernalia and the outfitting of a
replica RCMP vehicle, and she knew or ought to have known of his
intentions.
The action also alleges that her brother and Brewster acquired some
of the ammunition that Wortman used and that they also knew or
ought to have known of his intentions.
A defence lawyer for James Blair Banfield said her client had no
comment, and lawyers for Lisa Banfield did not immediately respond
to a request for comment. Tom Singleton, Brewster's criminal
defence lawyer, said in a telephone interview that he will consult
with his client about the lawsuit.
However, he noted that civil cases "can drag on for years, and the
people filing them want to cover off every possible angle, and it
is sometimes years before . . . they realize there is nothing
there." He added that in civil litigation, "the rule seems to be to
add every party you can in the hope something sticks."
The families' original notice of action was filed in May last year
against the estate of the 51-year-old denturist, and it has been
amended four times.
The most recent valuation of the killer's estate estimates its
value at about $2.1 million, including $705,000 in cash police
seized from a property in Portapique.
The gunman was shot dead by a police officer at a gas station in
Enfield, N.S., on April 19, after he had killed 22 people during a
13-hour rampage wearing an RCMP uniform and driving a replica
police vehicle.
This report by The Canadian Press was first published Feb. 8, 2021.
[GN]
GENERAL ELECTRIC: 2nd Cir. Affirms ERISA Class Action Dismissal
---------------------------------------------------------------
Jamie Fleckner, Esq., and Jaime Santos, Esq., of Goodwin, in an
article for JDSupra, report that the U.S. Court of Appeals for the
Second Circuit on Thursday, February 4, affirmed the dismissal of
an ERISA class-action lawsuit filed against General Electric
Company and its former CEO. The complaint had alleged the company
violated ERISA by offering GE stock as an investment option for its
401(k) plan participants despite purportedly under-reserving for
the liabilities of insurance subsidiaries by approximately $15
billion. The court rejected the plaintiff's argument that her
allegations satisfied the standard for pleading a breach of the
duty of prudence in this context established by the Supreme Court
in Dudenhoeffer v. Fifth Third Bancorp and interpreted by a
different Second Circuit panel in Jander v. Retirement Plans
Committee of IBM.
The Second Circuit affirmed the dismissal of an ERISA class action
lawsuit filed against General Electric Company and its former CEO
that alleged that retaining company stock as an investment option
in GE's 401(k) plan violated ERISA's duty of prudence. This case is
the most recent of a nearly unbroken chain of similar lawsuits that
have been rejected by courts across the country since the Supreme
Court set a high bar for pleading these types of claims in 2014.
These lawsuits have generally followed a similar pattern where a
publicly held company makes available its own stock in its employee
retirement plan. Following a drop in a company's stock price, the
company will often be targeted not only by a securities
class-action complaint alleging that securities fraud caused the
stock drop, but also by an ERISA class-action complaint alleging
that the fiduciaries of the retirement plan knew that some type of
corporate misfeasance was occurring and should have taken action to
prevent plan participants from experiencing losses caused by the
stock drop.
The Supreme Court has recognized that ERISA plan fiduciaries are
"between a rock and a hard place" with respect to company stock
offerings. Congress has encouraged employers to make company stock
available in their retirement plans, and some plans of public
companies mandate that company stock be available to employees.
Plan fiduciaries must follow the plan documents unless doing so
otherwise violates ERISA. Moreover, the stock-price impact of any
new information about a company -- good or bad -- is often
difficult to predict, particularly its long-term impact. If a plan
fiduciary with non-public information about the company decides to
continue offering company stock and the stock price goes down, he
can be sued for acting imprudently; if he stops offering company
stock and the price goes up, he can be sued for violating the plan
document. Further confounding the dilemma faced by such
fiduciaries, taking the latter action can itself trigger a stock
drop and affirmatively cause losses to plan participants who are
already invested in company stock.
Thus, the Supreme Court has set a high bar for pleading a viable
claim for breach of ERISA fiduciary duty related to the decision to
offer mandated company stock where a fiduciary allegedly has
material non-public information of an undisclosed problem inflating
the company stock price: a plaintiff must allege that the plan
fiduciaries could have taken an "alternative action" that (a) would
have been consistent with the securities laws and (b) a prudent
fiduciary in the same position "could not have concluded . . .
would do more harm than good" to the plan and its participants.
Fifth Third Bancorp v. Dudenhoeffer, 573 U.S. 409, 429-430 (2014);
Amgen Inc. v. Harris, 136 S. Ct. 758, 759-760 (2016).
Following those two Supreme Court decisions, courts have, with
almost-unfailing consistency, rejected ERISA stock-drop claims at
the pleading stage. Plaintiffs asserting these types of claims have
generally alleged that plan fiduciaries should have stopped making
company stock available for new investments or publicly disclosed
insider information to participants and the market as a whole --
two outcomes that courts across the country have recognized could
trigger a stock drop and harm plan participants, which is something
that any reasonable fiduciary would aim to avoid. The only contrary
decision is the Second Circuit's decision in Jander v. Retirement
Plans Committee of IBM, 910 F.3d 620 (2d Cir. 2018), which
permitted a prudence claim to go forward because the plaintiffs
there alleged specific facts indicating that disclosure of the
alleged inside information -- the overvaluation of a corporate
subsidiary -- would inevitably become public once a planned sale of
the subsidiary became public.
In Varga v. General Electric, the plaintiff alleged that plan
fiduciaries had negative inside information more than a decade ago
about reinsurance subsidiaries of General Electric Company and
violated ERISA's duty of prudence by failing to disclose that
information to the public or stop permitting new plan investments
in company stock. The plaintiff asserted that disclosure was
"inevitable" because the information was bound to come out sooner
or later and argued to the Second Circuit that those allegations
were sufficient to fall within Jander. The Second Circuit
disagreed, holding that conclusory assertions of inevitability are
not sufficient to state a claim. The court agreed with the district
court that a plaintiff must allege some "major triggering event"
like the sale alleged in Jander to make it plausible that a prudent
fiduciary could not have concluded that taking action would do more
harm than good to participants.
The Second Circuit's decision reaffirms that Jander was not the sea
change in the law that ERISA plaintiffs in a variety of cases have
suggested that it was. Instead, it was a narrow holding cabined to
the unique facts of that case. And in doing so, the court
reiterated the high pleading standard ERISA plaintiffs must satisfy
to state a viable ERISA claim based on the decision to offer
company stock.
GE was represented by Goodwin, and Jaime Santos (a partner in
Goodwin's Supreme Court and Appellate Litigation Practice) argued
the Second Circuit appeal. [GN]
GEORGETOWN UNIVERSITY: Denial of Leave to Amend Wilcox Suit Vacated
-------------------------------------------------------------------
In the case, DARRELL WILCOX AND MICHAEL McGUIRE, INDIVIDUALLY AND
AS REPRESENTATIVES OF A CLASS OF PARTICIPANTS AND BENEFICIARIES IN
AND ON BEHALF OF THE GEORGETOWN UNIVERSITY DEFINED CONTRIBUTION
RETIREMENT PLAN AND THE GEORGETOWN UNIVERSITY VOLUNTARY
CONTRIBUTION RETIREMENT PLAN, Appellants v. GEORGETOWN UNIVERSITY,
ET AL., Appellees, Case No. 19-7065 (D.C. App.), the U.S. Court of
Appeals for the District of Columbia Circuit vacated the district
court's denial of the Appellants' motion for leave to amend their
complaint and remanded the case to consider whether to grant leave
for appellants to file their proposed amended complaint.
Plaintiffs Wilcox and McGuire are participants in retirement plans
for faculty and staff of Georgetown University. They sued the
University and individual fiduciaries of these plans, seeking to
bring individual and representative class action claims for breach
of fiduciary duty under the Employee Retirement Income Security Act
("ERISA"). They alleged, among other things, that the University
plans paid excessive fees for recordkeeping services and included
investment options that consistently underperformed their
benchmarks. For instance, concerning the recordkeeping fees, the
complaint alleged that the plans paid hundreds of dollars in annual
fees for each participant when a reasonable annual price for the
services provided would have been $35.
The University moved to dismiss the complaint pursuant to Federal
Rules of Civil Procedure 12(b)(1) and 12(b)(6), attaching a
proposed order for dismissal with prejudice.
On Jan. 8, 2019, the district court dismissed the complaint without
prejudice. It ruled that the Appellants lacked Article III
standing as to some aspects of plan management, such as the
inclusion of investment options neither Appellant had selected.
Regarding the duty of prudence, the district court found that the
Appellants' excessive recordkeeping fees allegations failed to
state a claim upon which relief could be granted because they
provided "no factual support at all for their assertion that the
Plans should pay only $35/year per participant." That is, the
Appellants challenged "the fundamental structures of the Georgetown
Plans" without citing any example of a college or university
continuing the same offerings at the reduced price, and that their
theory the University could do so was entirely speculative,
contrary to caselaw and common sense, and does not warrant
discovery. By order, the district court dismissed the complaint
without prejudice. The electronic docket entry for the order read,
in relevant part, "See Order for details. This case is closed."
On Feb. 7, 2019, the Appellants moved for leave to amend their
complaint, pursuant to Federal Rule of Civil Procedure 15(a),
attaching a proposed amended complaint. The district court denied
the motion by Order of May 29, 2019. It explained that because its
order in January had entered judgment in the case, the Appellants
could no longer properly seek leave to amend under Rule 15(a), and
their motion did not survive analysis under Federal Rules of Civil
Procedure 59(e) or 60(b), as it was untimely under the former and
lacked a proper basis for relief under the latter.
On June 27, 2019, the Appellants filed a notice of appeal from the
January 2019 memorandum opinion and order, and from the May 2019
denial of leave to file an amended complaint.
As a threshold matter, the University maintains the appeal should
be dismissed for lack of jurisdiction. It argues that because the
district court had closed the case in January 2019, the Appellants
had to note their appeal within 30 days of that order, which they
failed to do. Notably, the jurisdictional and the merits issues
turn on whether the January dismissal order constituted a final
judgment. If it did, then the Court lacks jurisdiction over the
untimely appeal. If it did not, then the Court has jurisdiction
over the timely appeal, and the district court erred by relying on
its January dismissal in rejecting the Appellants' attempt to amend
their complaint.
As the foregoing cases amply demonstrate, the Court of Appeals
opines that it is not always clear whether a district court
intended its order to dismiss the action or merely the complaint.
Even where a district court's order states that it is dismissing
the complaint without prejudice, that can be a final decision if
there are other sufficiently clear record indicia that it intended
to dismiss the case or action.
The district court's January Order was, the Court of Appeals says,
on its face, a without-prejudice dismissal of the Appellants'
complaint. The question, therefore, is whether there are other
indicia in the record that the district court had withdrawn from
the case as a whole such that a Rule 15(a) amendment would not be
available.
The Appellate Court finds that none of the markers that the Court
has identified as sufficient indicia of such finality are present
in the case. The district court did not state in either its
January Order or memorandum opinion that amendment of the complaint
would be futile. The Order did not state that it was final and
appealable. The January memorandum opinion did not state that "the
case" or "the action" was dismissed. Nor did the accompanying
Order state that it was dismissing all of the Plaintiffs' "claims."
The district court's dismissal was not wholly for lack of
subject-matter jurisdiction. Nor did the University's motion
request dismissal of the "action."
For these reasons, the Appellate Court holds that the January Order
was not final; only the May Order was. The May Order stated that
the Appellants' Rule 15(a) motion for leave to file an amended
complaint was denied, and disassociated the district court from
their case. Because the notice of appeal was filed within 30 days
of the May Order, it was timely and the Court has jurisdiction.
The district court concluded in May that because judgment had been
entered by the January Order, the Appellants could no longer seek
leave to amend their complaint pursuant to Rule 15(a)(2). But
because the January Order did not enter a final, appealable
judgment, the district court erred when considering appellants'
motion to amend their complaint in refusing to apply the Rule
15(a)(2) standard, rather than the more restrictive standards under
Rules 59(e) and 60(b). In this circumstance, as the University
suggests, it is appropriate to remand for the district court to
decide, in the exercise of its discretion, whether to grant the
Appellants' motion.
Accordingly, the Court of Appeals vacated the denial of the
Appellants' motion for leave to amend their complaint and remanded
the case to the district court to consider whether to grant leave
for appellants to file their proposed amended complaint. There is
no need now for the Court to address either the Appellants'
challenges to the district court dismissal of their initial
complaint or the University's contention that the proposed
amendments would be futile, for the district court can address that
matter in the first instance.
A full-text copy of the Court's Feb. 9, 2021 Opinion is available
at https://tinyurl.com/z0fpj11w from Leagle.com.
John J. Nestico -- jnestico@schneiderwallace.com -- argued the
cause for appellants. With him on the briefs were Todd S. Collins
-- tcollins@bm.net -- and Eric Lechtzin -- elechtzin@bm.net.
Brian D. Netter -- bnetter@mayerbrown.com -- argued the cause for
appellees. With him on the brief were Eric A. White --
eawhite@mayerbrown.com -- and Nancy G. Ross --
nross@mayerbrown.com.
HARRIS WATER: Pino Suit Seeks to Certify Class Action
-----------------------------------------------------
In the class action lawsuit captioned as EDEN PINO, LESTER MONCADA,
and WALTER ULLOA, on behalf of themselves and all others similarly
situated, v. HARRIS WATER MAIN & SEWER CONTRACTORS, INC., STEVEN
KOGEL, individually, and BRETT KOGEL, individually, Case No.
1:17-cv-05910-KAM-RER (E.D.N.Y.), the Plaintiffs ask the Court to
enter an order:
1. certifying the action as a class action;
2. authorizing distribution of a Notice to the Class in
English and Spanish (in a form to be approved by the
Court) to:
"all current and former non-exempt crew member/field
workers who worked for the Defendants at any time from
October 10, 2011 (six years prior to the filing of the
Complaint) through the date of any order granting class
certification";
3. directing the Defendants to produce, in an electronic
Excel format, the full names, last known address,
telephone numbers, and dates of employment of all current
and former non-exempt crew member/field employees who
worked for the Defendants at any time from October 10,
2011 through the date of any order granting class
certification, within 10 calendar days of any order
granting class certification;
4. appointing themselves as Class representatives; and
5. appointing their Counsel as Class Counsel.
Harris is a construction company.
A copy of the Plaintiffs' notice of motion to certify class dated
Feb. 5, 2020 is available from PacerMonitor.com at
http://bit.ly/2ODBV5cat no extra charge.[CC]
Attorneys for the Plaintiffs and the Putative Class, are:
Laurent S. Drogin, Esq.
Tara Toevs Carolan, Esq.
TARTER KRINSKY & DROGIN LLP
1350 Broadway, 11th Floor
New York, NY 10018
Telephone: (212) 216-8000
E-mail: ldrogin@tarterkrinsky.com
tcarolan@tarterkrinsky.com
HEARTLAND BANK: Court Narrows Claims in PLB Suit Over Ponzi Scheme
------------------------------------------------------------------
In the case, PLB INVESTMENTS LLC, JOHN KUEHNER, and A.S. PALMER
INVESTMENTS LLC, individually and on behalf of all those similarly
situated, Plaintiffs v. HEARTLAND BANK AND TRUST COMPANY and PNC
BANK N.A., Defendants, Case No. 20 C 1023 (N.D. Ill.), Judge Sara
L. Ellis of the U.S. District Court for the Northern District of
Illinois, Eastern Division, granted in part and denied in part
Heartland's motion to dismiss, and granted PNC's motions to
dismiss.
The U.S. Securities and Exchange Commission ("SEC") filed a case
against Today's Growth Consultant Inc. ("TGC"), alleging that TGC
and its owner, Kenneth D. Courtright III, engaged in a Ponzi scheme
that defrauded investors. Plaintiffs PLB, Kuehner, and A.S.
Palmer, all TGC investors, filed the putative class action against
two banks with which TGC and Courtright had accounts, Defendants
Heartland and PNC B.
TGC, also known as The Income Store, claimed it would provide
investors with a guaranteed rate of return through revenues it
generated from websites it built and acquired. Courtright co-owned
TGC with his wife. He served as the CEO and president from March
2009 through August 2019, at which time his wife took over as
president.
TGC advertised its investment opportunities on websites and radio,
touting its expertise in monetizing websites. Interested investors
then entered into Consulting Performance Agreements ("CPAs") with
TGC. Since at least 2013, TGC offered and sold approximately 700
CPAs to over 500 investors. In exchange, TGC guaranteed investors
a minimum rate of return in perpetuity on the revenue TGC generated
from those websites. Typically, the return, paid monthly, was the
greater of up to 20% of an investor's initial investment or 50% of
the investor's designated website's revenue.
TGC had much success generating investments, raising at least $75
million between January 2017 and October 2019. But its advertised
business model proved unsuccessful, with TGC failing to timely
purchase and build the promised websites and generate the amount of
revenue it had promised to investors. Consequently, to cover the
guaranteed returns and remain in business, TGC turned to a Ponzi
scheme, paying early investors with money TGC raised from later
investors.
PLB entered into a CPA with TGC on Sept. 13, 2018, investing
$100,000 for a single website by wiring that amount on Sept. 14,
2018 to TGC's accounts at Heartland. Kuehner entered into a CPA
and invested $300,000 with TGC in August 2018, wiring that amount
to TGC's Heartland accounts. Kuehner also invested $350,000 in
2019, wiring that amount to TGC's accounts at PNC. A.S. Palmer
entered into a CPA and invested $100,000 in May 2017 and an
additional $100,000 in February 2018, wiring those amounts to TGC's
accounts at Heartland.
On Dec. 27, 2019, the SEC filed suit against TGC and Courtright,
seeking to terminate the Ponzi scheme and freeze their assets--SEC
v. Today's Growth Consultant Inc., No. 19 C 8454 (N.D. Ill.). The
Court entered an order freezing assets, appointing a receiver, and
staying claims against TGC on Dec. 30, 2019. It unsealed the SEC
case on Jan. 15, 2020.
In her initial report, the receiver determined that, in 2018 and
2019, TGC received investments of $41.5 million and had operating
expenses of approximately $34.6 million. The receiver further
reported that, in 2018, TGC had under $2 million in website revenue
but made approximately $12.7 million in payments to investors, with
a total loss that year of $5.7 million. This trend continued in
2019, with TGC website revenue under $4 million, investor payouts
of $16.5 million, and a $7.5 million loss.
In February 2020, the government filed a criminal complaint against
Courtright, charging him with wire fraud--United States v.
Courtright, No. 20 CR 77 (N.D. Ill.). On Dec. 30, 2020, after the
filing of the case, the receiver filed a complaint against
Heartland and PNC--Damian v. Heartland Bank & Tr. Co., No. 20 C
7819 (N.D. Ill.)--alleging violations of the FOA, breach of
fiduciary duty, aiding and abetting Courtright's breach of
fiduciary duty, negligence, fraudulent transfer, and unjust
enrichment
The Plaintiffs allege that Heartland and PNC committed fraud,
violated their obligations under the Illinois Fiduciary Obligations
Act ("FOA"), breached their fiduciary duties, aided and abetted TGC
and Courtright's fraud and breaches of fiduciary duty, or,
alternatively, acted negligently.
Heartland and PNC seek dismissal of the complaint pursuant to
Federal Rule of Civil Procedure 12(b)(6).
JUdge Ellis opines that because the Plaintiffs' allegations do not
support an inference that PNC allowed TGC and Courtright to
misappropriate investor funds with actual knowledge of the
misappropriation or in bad faith, she dismisses all claims against
PNC without prejudice. But because the Plaintiffs have
sufficiently alleged bases to hold Heartland liable for its actions
in facilitating TGC and Courtright's wrongful conduct, the
Plaintiffs may proceed against Heartland on their affirmative FOA
claim. The Plaintiffs also may proceed against Heartland with
respect to their aiding and abetting claims with respect to
Heartland's actions on or after Sept. 10, 2018, when Heartland
learned of the Ponzi scheme.
For these reasons, Judge Ellis granted in part and denied in part
Heartland's motion to dismiss, and granted PNC's motions to
dismiss. She dismissed all of the Plaintiffs' claims against PNC
without prejudice. She further dismissed the Plaintiffs' claims
for fraud by omission (Count I), breach of fiduciary duty (Count
III), aiding and abetting fraud and breach of fiduciary duty with
respect to actions that occurred before Sept. 10, 2018 (Counts IV
and V), and negligence (Count VI) against Heartland without
prejudice.
A full-text copy of the Court's Feb. 9, 2021 Opinion & Order is
available at https://tinyurl.com/hylmymvu from Leagle.com.
HOSOPO CORP: Wins Final Approval of Settlement in Davila-Lynch Suit
-------------------------------------------------------------------
In the case, JEREMIAH DAVILA-LYNCH on behalf of himself and others
similarly situated, Plaintiffs v. HOSOPO CORPORATION D/B/A: HORIZON
SOLAR POWER, Defendant, Case No. 1:18-cv-10072-FDS (D. Mass.),
Judge F. Dennis Saylor, IV, of the U.S. District Court for the
District of Massachusetts granted the Plaintiff's motion for final
approval of the class action settlement and for entry of judgment.
Upon review of the record, Judge Saylor finds that the Settlement
Agreement is, in all respects, fair, adequate, and reasonable and
therefore approves it. He also finds that extensive arm's-length
negotiations have taken place, in good faith, between Settlement
Class Counsel and HOSOPO's Counsel resulting in the Settlement
Agreement. These negotiations were presided over by an experienced
mediator. The Settlement Agreement provides substantial value to
the Settlement Class in the form of cash payments.
For the reasons stated in the Preliminary Approval Order, and
having found nothing in any submitted objections that would disturb
these previous findings, Judge Saylor finds and determines that the
proposed Class, meets all of the legal requirements for class
certification, for settlement purposes only, under Federal Rule of
Civil Procedure 23 (a) and (b)(3).
Judge Saylor also finds that an award of $298,666.67 for a Fees,
Costs, and Expenses Award to Settlement Class Counsel is fair and
reasonable in light of the nature of the case, the Settlement Class
Counsel's experience and efforts in prosecuting the Action, and the
benefits obtained for the Settlement Class.
Judge Saylor further finds that a Service Payment to the Plaintiff
of $10,000, as well as the reimbursement to the Settlement
Administrator in the amount of is $36,316.18, are fair and
reasonable.
For these reasons, Judge Saylor certified the Settlement Class as a
class of (1) All persons in the United States who are the users or
subscribers of the telephone numbers identified by Flowmedia in
Jamie Williams' affidavit as being called for Horizon Solar (2)
using the ViciDialer dialing system (3) from Oct. 16, 2017 through
Dec. 8, 2017.
HOSOPO is directed to provide the Settlement Fund to the Settlement
Administrator according to the terms and timeline stated in the
Settlement Agreement. The Settlement Administrator is further
directed to issue payments to each Settlement Class Member who
submitted a valid and timely Claim Form (i.e., each Authorized
Claimant) according to the terms and timeline stated in the
Settlement Agreement.
Pursuant to the Settlement Agreement, any unpaid portion of the
Settlement Fund will be paid to the National Consumer Law Center.
Judge Saylor dismissed with prejudice the Action and all the
Released Claims against each and all the Released Parties and
without costs to any of the Parties as against the others.
Without affecting the finality of this Final Judgment, the Court
reserves jurisdiction over the implementation, administration, and
enforcement of the Final Judgment and the Agreement, and all
matters ancillary thereto.
Judge Saylor, finding that no reason exists for delay, directed the
clerk to enter the Final Judgment forthwith.
Pursuant to the Parties' request, the Court will retain
jurisdiction over the Action and the Parties for all purposes
related to the settlement.
A full-text copy of the Court's Feb. 5, 2021 Final Approval Order &
Judgment is available at https://tinyurl.com/1c35ak79 from
Leagle.com.
HUDSON HALL: Court Denies Bid to Strike Stewart Responses to RFAs
-----------------------------------------------------------------
In the case, DERRICK STEWART, on behalf of himself, FLSA Collective
Plaintiffs and the Class, Plaintiff v. HUDSON HALL LLC, d/b/a
MERCADO LITTLE SPAIN, et al., Defendants, Case No. 20 Civ. 885
(PGG) (SLC) (S.D.N.Y.), Magistrate Judge Sarah L. Cave of the U.S.
District Court for the Southern District of New York denied the
Defendants' letter-motion to strike Stewart's Responses to the
Defendants' First and Second Requests for Admissions.
Plaintiff Stewart filed the putative collective and class action
asserting claims under the Fair Labor Standards Act ("FLSA"), and
the New York Labor Law ("NYLL"), against Corporate Defendants
Hudson Hall, Hudson Hall Holdings LLC, doing business as Mercado
Little Spain, Think Food Group, LLC, and Jose Ramon Andres Puerta,
also known as Jose Ramon. 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.
As is relevant to the current Motion, the pretrial schedule in
place set Dec. 31, 2020, as the deadline for the completion of Fact
Discovery and Feb. 15, 2021, as the deadline for completion of
Expert Discovery.
On Oct. 29, 2020, the Defendants served their first set of RFAs,
and on Nov. 12, 2020, served the second set of RFAs. On Nov. 23,
2020, Stewart requested a 30-day extension to respond to both RFAs.
The Defendants agreed to extend until Dec. 14, 2020 Stewart's time
to respond to the First RFAs, and until Dec. 24, 2020 his time to
respond to the Second RFAs. Stewart did not respond to either set
of RFAs by the agreed deadlines, and instead served his Responses
on Dec. 31, 2020.
The Defendants first ask the Court to strike Stewart's Responses
and deem him to have admitted the RFAs due to his failure to serve
the Responses by the parties' agreed deadline. In their reply,
they claim that they are prejudiced by Stewart's delay in serving
his Responses until the last day of Fact Discovery, which precluded
them from seeking evidence with respect to his Responses.
Mr. Stewart counters that the Defendants have failed to show any
prejudice or that his Responses do not advance the merits of the
litigation. He contends that there was good cause for the brief
delay, which resulted from the fact that his counsel contracted
COVID-19. He points out that deeming the RFAs admitted "would be
especially inappropriate here as it would lead to admissions that
are plainly inconsistent with the facts presented in this matter."
Under the circumstances of the case, Magistrate Judge Cave declines
to strike Stewart's Responses and deems him to have admitted the
RFAs. First, while she does not condone Stewart's disregard of the
parties' agreed deadline for the Responses and unilaterally
granting himself an extension without conferring with the
Defendants, she says the delay was relatively brief (one week for
the Second RFAs and two weeks for the Second RFAs) in comparison to
the length of the delay in cases in which courts declined to excuse
delay.
Second, Magistrate Judge Cave must credit the representation of
Stewart's counsel, as an officer of the Court, that he is speaking
truthfully when he states that he and his colleagues contracted
COVID-19 "shortly prior to the due date" thus delaying service of
Stewart's Responses. The Defendants dispute whether Stewart's
counsel had COVID-19, pointing out that Stewart filed a motion for
reconsideration on Dec. 23, 2020, during the time he was infected.
The Magistrate Judge says the Court is not a medical expert and is
not in a position to judge what Stewart's counsel was able to do or
not do while ill. She takes Stewart's counsel at his word, and
finds that his explanation for the delay is justified.
Third, Magistrate Judge Cave finds that the Defendants have not
shown measurable prejudice from the delay. While they complain
that they "had no opportunity to 'obtain evidence with respect to
the questions previously deemed admitted'" due to the delay, the
Defendants neither indicate from which Responses they were unable
to seek discovery nor do they describe what discovery they would
have sought had they had more time. Hence, their professed
prejudice therefore rings hollow.
Fourth, the Magistrate Judge finds that excusing the brief delay
will aid in the presentation of the merits in the litigation. In
his Responses, Stewart "admitted" or "denied" without qualification
seven out of 12 of the First Responses, and 18 out of 20 of the
Second Responses. As Stewart correctly points out, to deem all of
the RFAs now admitted would lead to contradictions, rather than
clarifications as Rule 36 intends.
Accordingly, it is appropriate to excuse Stewart's brief delay in
serving his Responses and declines to strike the Responses as
untimely.
The Defendants request in the alternative that the Court requires
Stewart to amend his Responses to the First RFAs (specifically
numbers 2, 3, 4, 5, and 12) to comply with Rule 36. In his
Opposition, Stewart amends his Responses to each of these five
RFAs. Accordingly, the Defendants' alternative relief is moot.
For the sake of a clear record, however, the Magistrate Judge
orders Stewart, within five business days of her Order, to serve on
the Defendants a complete set of the Responses, including those
amended in his Opposition.
For the reasons she set forth, Magistrate Judge Cave denied the
Defendants' Motion. The Clerk of the Court is respectfully
directed to close ECF No. 79.
A full-text copy of the Court's Feb. 5, 2021 Order is available at
https://tinyurl.com/16g3f8yp from Leagle.com.
IBM CORP: Court Grants in Part Bid to Dismiss Comin Class Suit
--------------------------------------------------------------
Judge James Donato of the U.S. District Court for the Northern
District of California grants in part the Defendants' motion to
dismiss the case, MARK COMIN, Plaintiff v. INTERNATIONAL BUSINESS
MACHINES CORPORATION (IBM), Defendant, Case No. 19-cv-07261-JD
(N.D. Cal.).
Plaintiff Comin has sued his former employer, Defendant IBM, on
behalf of a putative class under California Labor Code Section 2751
and the Unfair Competition Law ("UCL"), and for breach of contract.
Comin alleges that IBM had a practice of not providing sales
representatives with a written contract about commissions, which
Section 2751 requires, and failing to pay commissions as they came
due.
As alleged in the amended complaint, Comin worked for IBM as a
sales representative in California for over 17 years before leaving
in 2018. BM paid Comin and other sales reps with a combination of
a fixed salary and commissions. The commissions were a sizable
portion of a rep's earnings, and typically amounted to 30% to 45%
of annual compensation. IBM split the work year into two six-month
pay periods and gave the reps at the start of each period an
"Incentive Plan Letter" ("IPL"), which outlined sales targets and
the rate at which the representative would earn commissions. The
IPLs had disclaimers stating that they were not an express or
implied contract, or a promise to pay commissions. IBM had no
other written contract with its employees for the commissions.
Comin alleges three occasions when IBM did not pay him the full
amount of the commissions he was owed for closing large deals. In
two instances, IBM never credited him with the full commissionable
revenue associated with the deals, even though Comin had performed
all the work necessary to earn the sales commissions. In another
instance, IBM initially credited Comin for over $3 million in
commissionable revenue, but later retroactively reversed 90% of the
credit without any explanation.
Comin alleges that IBM has engaged in a "bait and switch" scheme in
which it incentivized sales reps with the promise of potentially
large commissions under the IPLs, only to renege and deny that that
the IPL was an enforceable contract when pay day arrived.
According to Comin, it is not the first time a sales rep has
challenged this practice. The amended complaint catalogs 29 other
lawsuits that have raised similar claims. Comin alleges a putative
class of IBM employees in California subject to a commissions
incentive plan, and a "subclass" consisting of the same group of
employees who were not paid commissions as described in their
personalized rates.
IBM asks to dismiss the Labor Code and UCL claims under Federal
Rule of Civil Procedure 12(b)(6), to strike the class definition as
overbroad under Rule 12(f), to dismiss or strike Comin's prayer for
injunctive and declaratory relief for lack of standing under Rule
12(b)(1), and to strike Comin's demand for a jury trial on the UCL
claim.
First, Section 2751 of the California Labor Code states in
pertinent part that employers must provide employees to be paid
with commissions a written contract that sets forth "the method by
which the commissions will be computed and paid." Count Two of the
amended complaint alleges that IBM failed to meet this statutory
requirement.
Judge Donato concludes that there is no private right of action
under Section 2751. A remedy for a violation of Section 2751 may
be available under California's Private Attorneys General Act of
2004, which allows private citizens to collect civil penalties for
violations of the Labor Code. A violation of Section 2751 is also
a predicate for a UCL action. But it is not a claim in itself, and
so Count Two is dismissed with prejudice.
Next, to state a UCL claim, Comin must allege facts plausibly
showing a "causal connection" between IBM's unfair or illegal
practices and an economic injury that he suffered.
Judge Donato holds that Comin has succeeded. The complaint alleges
that IBM expressly disclaimed that the IPLs were written contracts,
and that IBM did not satisfy the requirements of Section 2751 in
any other written agreement. Comin plausibly alleges that he
personally lost commission compensation because IBM did not provide
him with a written contract that he could use to enforce his
payment rights. He also plausibly alleges that IBM refused to pay
commissions on the grounds that it was not contractually obligated
to do so. And he states specific instances where he was not paid
the full commissions he was owed, including one case where IBM
unilaterally and retroactively reduced his commission on a sale.
The Judge holds that that is enough to show an economic injury
caused by IBM's conduct.
IBM's request to get into class definition issues at the pleadings
stage is declined.
Although some courts have accepted Rule 12(f) as a basis for
deciding the appropriateness of class action issues, Judge Donato
considers it a poor fit for that. He says Rule 12(f) is directed
to striking from a pleading an insufficient defense or any
redundant, immaterial, impertinent, or scandalous matter. This
plain language does not apply in an obvious way to a dispute over
whether a putative class of California commissioned employees is
defined too broadly, which is "hardly the stuff of scandal or
impertinence. Rule 23 proceedings are the optimal basis for
deciding the issue. Consequently, the Judge defers a determination
on the adequacy of Comin's class definition to class certification
proceedings, and the motion to strike is denied.
Finally, Comin acknowledged in his opposition brief that he does
not have standing to pursue an injunction or declaratory judgment
because his is not a current IBM employee. The prayers for
declaratory and injunctive relief are stricken.
It is too early to say that there is no room for a jury trial of
any sort in the case. It is true that the UCL, as an equitable
claim, does not trigger a constitutional right to a jury trial.
But Comin has a breach of contract claim, albeit pleaded in the
alternative, and it is possible other disputed issues of fact may
require resolution of jury. The jury trial determination will be
reserved for further consideration at an appropriate time.
In light of the foregoing, Judge Donato granted the motion to
dismiss as to the Labor Code claim. He denied as to the UCL claim.
The challenge to the class definition is better made at the Rule 23
stage, and is denied on that basis. Comin does not contest that
injunctive and declaratory relief are unavailable to a former
employee such as him, and his prayers for these forms of relief are
stricken. The issue of the jury trial demand is deferred pending
further developments in the case with respect to the contract
claim.
A full-text copy of the Court's Feb. 9, 2021 Order is available at
https://tinyurl.com/3ok7cmvg from Leagle.com.
IMMEDIATE CREDIT: March 26 Class Status Bid Filing Extension Sought
-------------------------------------------------------------------
In the class action lawsuit captioned as Marlyatou Diallo v.
Immediate Credit Recovery, Inc., Case No. 1:18-cv-00470-KAM-SJB
(E.D.N.Y.), the Parties ask the Court to enter an order that the
deadline to take the first step to file a dispositive motion and/or
for class certification be extended to March 26, 2021.
This is a second request for extension. The deadline was originally
set for January 12, 2021. The Court granted a 30-day extension of
time in order to give the parties time to mediate.
According to the letter motion, the parties worked together
cooperatively to research and jointly agree upon a mediator they
both believed would be appropriate in light of the issues and
developments in the case. However, due to scheduling issues, the
earliest day on which all parties and the jointly agreed upon
mediator are available is February 24, 2021. This request does not
impact any other scheduled deadlines.
Immediate Credit Recovery is a debt collection agency.
A copy of the Letter motion dated Feb. 5, 2020 is available from
PacerMonitor.com at http://bit.ly/3jRpU7Jat no extra charge.[CC]
IRHYTHM TECH: Levi & Korsinsky Reminds of April 2 Deadline
----------------------------------------------------------
Levi & Korsinsky, LLP on Feb. 8 disclosed that class action
lawsuits have commenced on behalf of shareholders of the following
publicly-traded companies. Shareholders interested in serving as
lead plaintiff have until the deadlines listed to petition the
court. Further details about the cases can be found at the links
provided. There is no cost or obligation to you.
IRTC Shareholders Click Here:
https://www.zlk.com/pslra-1/irhythm-technologies-inc-loss-form?prid=12738&wire=1
BTBT Shareholders Click Here:
https://www.zlk.com/pslra-1/bit-digital-inc-loss-submission-form?prid=12738&wire=1
JFU Shareholders Click Here:
https://www.zlk.com/pslra-1/9f-inc-information-request-form?prid=12738&wire=1
* ADDITIONAL INFORMATION BELOW *
iRhythm Technologies, Inc. (NASDAQ:IRTC)
IRTC Lawsuit on behalf of: investors who purchased August 4, 2020 -
January 28, 2021
Lead Plaintiff Deadline: April 2, 2021
TO LEARN MORE, VISIT:
https://www.zlk.com/pslra-1/irhythm-technologies-inc-loss-form?prid=12738&wire=1
According to the filed complaint, during the class period, iRhythm
Technologies, Inc. made materially false and/or misleading
statements and/or failed to disclose that: (1) iRhythm's business
would suffer as a result of the CMS' rulemaking; (2) reimbursement
rates would in fact plummet; (3) a lack of national pricing in the
CMS rule and fee schedule would cause uncertainty and weakness in
the Company's business; and (4) as a result of the foregoing,
Defendants' public statements were materially false and misleading
at all relevant times
Bit Digital, Inc. (NASDAQ:BTBT)
BTBT Lawsuit on behalf of: investors who purchased December 21,
2020 - January 8, 2021
Lead Plaintiff Deadline: March 22, 2021
TO LEARN MORE, VISIT:
https://www.zlk.com/pslra-1/bit-digital-inc-loss-submission-form?prid=12738&wire=1
According to the filed complaint, during the class period, Bit
Digital, Inc. made materially false and/or misleading statements
and/or failed to disclose that: (1) that Bit Digital overstated the
extent of its a bitcoin mining operation; and (2) that, as a result
of the foregoing, Defendants' positive statements about the
Company's business, operations, and prospects were materially
misleading and/or lacked a reasonable basis.
9F Inc. (NASDAQ:JFU)
Lawsuit on behalf of investors who purchased JFU securities: (1)
pursuant and/or traceable to the registration statement and related
prospectus issued in connection with the Company's August 14, 2019
initial public offering; and/or (2) between August 14, 2019 and
September 29, 2020.
Lead Plaintiff Deadline: March 22, 2021
TO LEARN MORE, VISIT:
https://www.zlk.com/pslra-1/9f-inc-information-request-form?prid=12738&wire=1
According to the filed complaint, (1) the purported value and
benefits of the Company's financial institution partners and its
tri-party cooperation business model did not in fact exist and/or
were materially overstated, given that 9F and Property and Casualty
Company Limited ("PICC") had been engaged in an ongoing contractual
dispute regarding payment of service fees under their cooperation
agreement; (2) the collectability of service fees owed to 9F by
PICC under the cooperation agreement was in doubt and at serious
risk of non-payment; (3) there was a significant risk that PICC
would no longer provide credit insurance and guarantee protection
to investors and institutional funding partners; (4) as a result of
the foregoing, the Company's platform, business model, reputation
and financial results had been materially impaired; and (5) 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.
You have until the lead plaintiff deadlines to request that the
court appoint you as lead plaintiff. Your ability to share in any
recovery doesn't require that you serve as a lead plaintiff.
Levi & Korsinsky is a nationally recognized firm with offices in
New York, California, Connecticut, and Washington D.C. The firm's
attorneys have extensive expertise and experience representing
investors in securities litigation and have recovered hundreds of
millions of dollars for aggrieved shareholders. Attorney
advertising. Prior results do not guarantee similar outcomes.
CONTACT:
Levi & Korsinsky, LLP
Joseph E. Levi, Esq.
55 Broadway, 10th Floor
New York, NY 10006
jlevi@levikorsinsky.com
Tel: (212) 363-7500
Fax: (212) 363-7171
www.zlk.com [GN]
IRHYTHM TECHNOLOGIES: RM Law Reminds Investors of April 2 Deadline
------------------------------------------------------------------
RM LAW, P.C. on Feb. 8 disclosed that a class action lawsuit has
been filed on behalf of all persons or entities that purchased
iRhythm Technologies, Inc. ("iRhythm" or the "Company")
(NASDAQ:IRTC) securities during the period from August 4, 2020
through January 28, 2021, inclusive (the "Class Period").
iRhythm shareholders may, no later than April 2, 2021, move the
Court for appointment as a lead plaintiff of the Class. If you
purchased shares of iRhythm and would like to learn more about
these claims or if you wish to discuss these matters and have any
questions concerning this announcement or your rights, contact
Richard A. Maniskas, Esquire toll-free at (844) 291-9299 or to sign
up online, click here.
According to the Complaint, the Company made false and misleading
statements to the market. U.S. Centers for Medicare and Medicaid
Services' ("CMS") rulemaking caused iRhythm's business to suffer.
The Company's reimbursement rates plummeted as a result. Further
uncertainty and weakness in the Company's business was caused by a
lack of national pricing in the CMS rule and fee schedule. 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 iRhythm, investors suffered damages.
If you are a member of the class, you may, no later than April 2,
2021, request that the Court appoint you as lead plaintiff of the
class. A lead plaintiff is a representative party that acts on
behalf of other class members in directing the litigation. In order
to be appointed lead plaintiff, the Court must determine that the
class member's claim is typical of the claims of other class
members, and that the class member will adequately represent the
class. Under certain circumstances, one or more class members may
together serve as "lead plaintiff." Your ability to share in any
recovery is not, however, affected by the decision whether or not
to serve as a lead plaintiff. You may retain RM LAW, P.C. or other
counsel of your choice, to serve as your counsel in this action.
For more information regarding this, please contact RM LAW, P.C.
(Richard A. Maniskas, Esquire) toll-free at (844) 291-9299 or by
email at rm@maniskas.com or click here. For more information about
class action cases in general or to learn more about RM LAW, P.C.
please visit our website.
RM LAW, P.C. is a national shareholder litigation firm. RM LAW,
P.C. is devoted to protecting the interests of individual and
institutional investors in shareholder actions in state and federal
courts nationwide.
CONTACT:
RM LAW, P.C.
Richard A. Maniskas, Esquire
1055 Westlakes Dr., Ste. 300
Berwyn, PA 19312
484-324-6800
844-291-9299
rm@maniskas.com [GN]
JACOBS ENGINEERING: Roane County Resident's Class Suit Ongoing
--------------------------------------------------------------
Jacobs Engineering Group Inc. said in its Form 10-Q Report filed
with the Securities and Exchange Commission on February 9, 2021,
for the quarterly period ended January 1, 2021, that the company
and Tennessee Valley Authority ("TVA") continues to defend a
putative class action suit initiated by a resident of Roane
County.
On December 22, 2008, a coal fly ash pond at the Kingston Power
Plant of the TVA was breached, releasing fly ash waste into the
Emory River and surrounding community.
In February 2009, TVA awarded a contract to the Company to provide
project management services associated with the clean-up. All
remediation and dredging were completed in August 2013 by other
contractors under direct contracts with TVA.
The Company did not perform the remediation, and its scope was
limited to program management services. Certain employees of the
contractors performing the cleanup work on the project filed
lawsuits against the Company beginning in August 2013, alleging
they were injured due to the Company's failure to protect the
plaintiffs from exposure to fly ash, and asserting related personal
injuries.
The primary case, Greg Adkisson, et al. v. Jacobs Engineering Group
Inc., case No. 3:13-CV-505-TAV-HBG, filed in the U.S. District
Court for the Eastern District of Tennessee, consists of 10
consolidated cases.
This case and the related cases involve several hundred plaintiffs
that have been filed against the Company by employees of the
contractors that completed the remediation and dredging work. The
cases are at various stages of litigation, and several of the cases
are currently stayed pending resolution of other cases.
Additionally, in May 2019, Roane County and the cities of Kingston
and Harriman filed a claim against TVA and the Company alleging
that they misled the public about risks associated with the
released fly ash.
In October 2020, the Court granted Jacobs and TVA's motion to
dismiss the Roane County litigation and closed the case.
In addition, in November 2019, a resident of Roane County, Margie
Delozier, filed a putative class action against TVA and the Company
alleging they failed to adequately warn local residents about risks
associated with the released fly ash. The Company and TVA filed
separate motions to dismiss the Delozier case in April 2020, which
remain pending before the Court.
In February 2020, the Company learned that the district attorney in
Roane County recommended that the Tennessee Bureau of Investigation
investigate issues pertaining to clean up worker safety at
Kingston, with that investigation still pending.
There has been no finding of liability against the Company or that
any of the alleged illnesses are the result of exposure to fly ash
in any of the above matters. The Company disputes the claims
asserted in all of the above matters and is vigorously defending
these claims.
The Company does not expect the resolution of these matters to have
a material adverse effect on the Company's business, financial
condition, results of operations or cash flows.
No further updates were provided in the Company's SEC report.
Headquartered in Dallas, Texas, Jacobs Engineering Group Inc., is a
global provider of technical, professional, and scientific
services, including engineering, architecture, construction,
operations and maintenance.
JARINC LTD: Blose Suit Seeks Initial Approval of Settlement
-----------------------------------------------------------
In the class action lawsuit captioned as Nathan Blose, et al., On
behalf of himself and those similarly situated, v. JARINC, Ltd., et
al., Case No. 1:18-cv-02184-RM-SKC (D. Colo.), the Plaintiff asks
the Court to enter an order:
1. Preliminarily approving the proposed settlement;
2. Approving the content, form, and distribution of the class
notice and claim form;
3. Approving the proposed Amended Complaint;
4. Preliminarily approving the service award for the
Plaintiffs;
5. Provisionally approving Class Counsel's request for
attorneys' fees and costs; and
6. scheduling a formal fairness hearing approximately 120
days after preliminary approval.
Summary of Settlement Terms:
-- The settlement agreement creates a settlement fund of
$1,800,000.00, inclusive of attorney's fees, expenses,
and service awards.
-- Unless they decide to opt out, each class member who
worked for the Defendants at any time between August
24, 2015 and December 31, 2020 will receive a share of
the settlement fund.
-- The settlement agreement contemplates two classes of
drivers.
"Traditional Delivery Drivers" are those delivery
drivers who were paid a tipped wage rate while making
deliveries and who received some amount of
reimbursement for automobile expenses from Defendants
during their employment.
"On Demand Delivery Drivers" are those delivery drivers
who were paid an hourly rate in excess of minimum wage,
approximately $15 per hour.
The Plaintiffs Nathan Blose, Kellie Huckstep, and Stephanie Rosvall
delivered food for the Defendants' Domino's franchise operation. On
August 24, 2018, Plaintiff Nathan Blose filed this lawsuit on
behalf of himself and similarly situated delivery drivers. On
October 27, 2020, Mr. Blose amended the Complaint to add
Plaintiff's Kellie Huckstep and Stephanie Rosvall as named
Plaintiffs and remove Nathan Blose as a named Plaintiff.
The Plaintiffs' First Amended Complaint alleges several wage and
hour violations. The Plaintiffs claim that the Defendants
under-reimbursed delivery drivers for the expenses that drivers
incurred in having to use their own cars to deliver food. The
Plaintiffs allege that, because the Defendants paid the drivers at
or below full minimum wage (i.e., Defendants paid a tipped wage),
any under-reimbursement could trigger a claim for unpaid minimum
wages under the Fair Labor Standards Act (FLSA) and Colorado law.
Jarinc, Ltd. is located in Boulder, Colorado. This organization
primarily operates in the Pizzeria, Chain business/industry within
the Eating and Drinking Places.
A copy of the Plaintiff's motion dated Feb. 5, 2020 is available
from PacerMonitor.com at https://bit.ly/3tWQ39H at no extra
charge.[CC]
The Plaintiffs are represented by:
Nathan Spencer, Esq.
Andrew R. Biller, Esq.
Andrew P. Kimble, Esq.
Biller & Kimble, LLC
4200 Regent Street, Suite 200
Columbus, OH 43219
Telephone: (614) 604-8759
Facsimile: (614) 340-4620
E-mail: abiller@billerkimble.com
nspencer@billerkimble.com
pkrzeski@billerkimble.com
- and -
David Lichtenstein, Esq.
Matt Molinaro, Esq.
Kristina Rosett, Esq.
LAW OFFICE OF DAVID
LICHTENSTEIN, LLC
1556 Williams St., Suite 100
Denver, CO 80218
E-mail: dave@lichtensteinlaw.com
matt@lichtensteinlaw.com
kristina@lichtensteinlaw.com
JERNIGAN CAPITAL: Robbins Named Lead Counsel in Erickson Class Suit
-------------------------------------------------------------------
In the case, JOHN R. ERICKSON, Individually and on Behalf of All
Others Similarly Situated, Plaintiff v. JERNIGAN CAPITAL, INC.,
JOHN A. GOOD, MARK O. DECKER, JAMES DONDERO, HOWARD A. SILVER,
HARRY J. THIE and REBECCA OWEN, Defendants, Case No.
1:20-cv-09575-MKV (S.D.N.Y), Judge Mary Kay Vyskocil of the U.S.
District Court for the Southern District of New York granted
Erickson's Motion for Appointment as Lead Plaintiff, Approval of
Lead Counsel, and Consolidation of Related Actions.
John R. Erickson is appointed as the Lead Plaintiff pursuant to 15
U.S.C. Section 78u-4(a)(3)(B)(iii). His selection of the Lead
Counsel is approved and Robbins Geller Rudman & Dowd LLP is
appointed as the Lead Counsel for the class pursuant to 15 U.S.C.
Section 78u-4(a)(3)(B)(v).
Pursuant to Rule 42(a) of the Federal Rules of Civil Procedure, all
securities class actions pending, subsequently filed, removed, or
transferred to the District that are related to the claims asserted
in the case will be consolidated for all purposes with Erickson v.
Jernigan Capital, Inc., No. 1:20-cv-09575-MKV (S.D.N.Y.). The
Consolidated Action will be captioned In re Jernigan Capital, Inc.
Securities Litigation and the file will be maintained under Master
File No. 1:20-cv-09575-MKV.
A full-text copy of the Court's Feb. 5, 2021 Order is available at
https://tinyurl.com/3rdhf6er from Leagle.com.
JOHNSON UTILITIES: Appeals Ruling in Castillo Suit to 9th Circuit
-----------------------------------------------------------------
Defendants GEORGE HARRY JOHNSON, et al., filed an appeal from a
court ruling entered in the lawsuit entitled Tisha Castillo, et al.
v. George Johnson, et al., Case No. 2:17-cv-04688-DLR, in the U.S.
District Court for the District of Arizona (Phoenix).
As previously reported in the Class Action Reporter, the Plaintiffs
are customers of Johnson Utilities, LLC, a water and wastewater
utility in Arizona that is wholly-owned by Defendants George and
Jana Johnson through a trust. Plaintiffs' complaint alleges that in
2011 certain of the Defendants participated in a bribery scheme
with a commissioner on the Arizona Corporation Commission (ACC) and
that as a result of the bribe, the ACC approved increases to
Johnson Utilities' water and wastewater rates. Plaintiffs don't
challenge the reasonableness of the new rates, but allege that the
new rates were corruptly obtained. The complaint includes federal
RICO claims as well as two state claims (for Arizona consumer fraud
and unjust enrichment).
The Defendants are now seeking an appeal to review the Court's
Order dated January 8, 2021, granting Plaintiffs' motion for
preliminary injunction.
The appellate case is captioned as Tisha Castillo, et al. v. George
Johnson, et al., Case No. 21-15224, in the United States Court of
Appeals for the Ninth Circuit, February 9, 2021.[BN]
Plaintiffs-Appellees TISHA CASTILLO, KAREN CHRISTIAN, and STEVE
PRATT, on behalf of themselves and others similarly situated, are
represented by:
Jeffrey J. Goulder, Esq.
Stefan M. Palys, Esq.
STINSON MORRISON HECKER, LLP
1850 N. Central Avenue
Phoenix, AZ 85004-4584
Telephone: (602) 212-8531
E-mail: jeffrey.goulder@stinson.com
stefan.palys@stinson.com
- and -
Clinton A. Krislov, Esq.
KRISLOV LAW
20 North Wacker Drive
Chicago, IL 60606
Telephone: (312) 606-0500
E-mail: clint@krislovlaw.com
- and -
Brandon R. Nagy, Esq.
STINSON LEONARD STREET LLP
1850 North Central Avenue, Suite 2100
Phoenix, AZ 85004
Telephone: (602) 212-8537
E-mail: brandon.nagy@stinson.com
Defendants-Appellants GEORGE HARRY JOHNSON; JANA JOHNSON, a married
couple; THE GEORGE H. JOHNSON AND JANA S. JOHNSON REVOCABLE TRUST
DATED JULY 9, 1987, George and Jana Johnson as trustees; ULTRA
MANAGEMENT LLC; HUNT MGT LLC; ROADRUNNER TRANSIT LLC; CHRIS
JOHNSON; MARGARET JOHNSON; BARBARA JOHNSON; PINETOP TRUST II, Chris
Johnson and Barbara Johnson, as trustees; DECEMBER COMPANIES, INC.,
an Arizona corporation; CHRIS JOHNSON FAMILY TRUST DATED SEPTEMBER
14, 2000, Chris and Margaret Johnson as trustees; BARJO LLC, an
Arizona limited liability company; BAJ LIVING TRUST, Barbara A.
Johnson as trustee; JOHNSON UTILITIES LLC; and JOHNSON
INTERNATIONAL, INC. are represented by:
Mark C. Dangerfield, Esq.
Mark Andrew Fuller, Esq.
Hannah Porter, Esq.
GALLAGHER & KENNEDY, P.A.
2575 East Camelback Road, Suite 1100
Phoenix, AZ 85016
Telephone: (602) 530-8000
E-mail: mark.dangerfield@gknet.com
mark.fuller@gknet.com
hannah.porter@gknet.com
- and -
Christian C.M. Beams, Esq.
Daniel E. Fredenberg, Esq.
FREDENBERG BEAMS
4747 N. 7th Street, Suite 402
Phoenix, AZ 85014
Telephone: (602) 595-9299
KITCHENETTE 123: Modified Settlement in Gomez Wins Final Approval
-----------------------------------------------------------------
In the case, JOHAN GOMEZ, on behalf of himself and others similarly
situated, Plaintiff v. KITCHENETTE 123 INC. d/b/a KITCHENETTE,
TRIBECA KITCHENETTE INC. d/b/a KITCHENETTE, HIGH FALLS KITCHENETTE
INC. d/b/a KITCHENETTE, ANN S. NICKINSON, and LISA ANN HALL,
Defendants, Case No. 16 CV 3302 (S.D.N.Y.), Magistrate Judge Debra
C. Freeman of the U.S. District Court for the Southern District of
New York issued Final Judgment and Order Granting Final Approval of
Modified Class Action Settlement.
The matter came before the Court on the parties' joint letter
motion dated Nov. 3, 2020, requesting modification of the
Court-approved Settlement Agreement and Release dated March 13,
2018, pursuant to the terms of the Addendum to Settlement Agreement
and Release dated Nov. 3, 2020, filed at Dkt. 99-1.
Having considered the parties' submissions in connection with the
Modified Settlement, and the oral argument presented at the Feb. 2,
2021 fairness hearing, and for the reasons set forth therein and
for good cause shown, Magistrate Judge Freeman finally approved as
fair and reasonable the Modified Settlement, including all service
awards, administration fees, attorneys' fees and reimbursement of
litigation expenses.
The Court retains jurisdiction over the action for the purpose of
enforcing the Modified Settlement. The parties will abide by all
terms of the Modified Settlement. The litigation will otherwise be
dismissed with prejudice.
A full-text copy of the Court's Feb. 5, 2021 Order is available at
https://tinyurl.com/2bl5ex4t from Leagle.com.
LAND O'LAKES: Minnesota Court Narrows Claims in Parmer ERISA Suit
-----------------------------------------------------------------
In the case, Craig Parmer and Mark A. Laurance, individually and on
behalf of all others similarly situated, Plaintiffs v. Land
O'Lakes, Inc.; The Board of Directors of Land O'Lakes, Inc.; Land
O'Lakes, Inc. Retirement Plan Committee; and John Does 1-30,
Defendants, Civil No. 20-1253(DSD/HB) (D. Minn.), Judge Davis S.
Doty of the U.S. District Court for the District of Minnesota
granted in part and denied in part the Defendants' motion to
dismiss.
The Employee Retirement Income Security Act of 1974 ("ERISA")
dispute arises out of the Defendants' administration and
maintenance of the Land O'Lakes Employee Savings & Supplemental
Retirement Plan. Plaintiffs Parmer and Laurance are former
employees of Land O'Lakes who participated in the Plan during their
employment and enrolled in three of the Plan's investment options.
The Defendants are the Plan's fiduciaries. The Board, in its
fiduciary capacity, appointed members to the Committee and
monitored the Committee's actions and Plan investments and
exercised discretionary authority over Plan assets.
The Plan is a defined-contribution retirement plan under which
participants can contribute a percentage of their eligible
compensation each year, and the Company matches the contributions
depending on each employee's start date. The Plaintiffs allege
that the Company enjoyed significant benefits, including tax and
cost savings, given the size of the Plan.
In 2018, the Plan offered participants 28 investment options,
including 22 mutual funds, one collective trust, two Wells Fargo
Short-Term investments, two stable value funds, and one separately
managed account composed of several common stocks, including
various T. Rowe Price target date funds. The Plan's assets for all
funds at the end of 2018 were over $1.4 billion. Administrative
expenses were charged to participant accounts on a monthly basis,
which included expenses to pay for the Plan's website and call
center, producing and mailing quarterly statements, and complying
with government regulations.
The Plaintiffs allege that the Defendants breached their fiduciary
duties by not acting in the best interests of the Plan participants
as mandated by ERISA. Specifically, they assert that the
Defendants breached their fiduciary duties by (1) failing to
investigate and select lower cost alternative funds, (2) failing to
monitor or control the Plan's recordkeeping expenses, and (3)
allowing their recordkeeping affiliates to directly benefit from
the Plan at the expense of their participants.
On May 26, 2020, the Plaintiffs filed the putative class action
alleging that the Defendants breached their fiduciary duties of
loyalty and prudence under ERISA through the acts or inattention
set forth. The Plaintiffs also assert that the Company and the
Board failed to adequately monitor the Committee and other related
fiduciaries. They seek class certification, declaratory relief,
equitable relief, and damages.
The Defendants now move to dismiss the complaint for lack of
subject matter jurisdiction and failure to state a plausible
claim.
The Plaintiffs challenge 18 of the Plan's 25 investment options,
even though they only enrolled in three of those options. The
Defendants argue that the Plaintiffs lack standing to challenge
investment options in which they were not enrolled because they do
not have a particularized and concrete injury relating to those
options. The Plaintiffs respond that they need not personally
invest in each fund to have standing because they suffered overall
injury from the Defendants' fiduciary breaches and are entitled to
bring a class action suit in a representative capacity under 29
U.S.C. Section 1132(a)(2). Judge Doty finds that the Plaintiffs
have standing to challenge the entire Plan.
The Plaintiffs assert that the Defendants breached their fiduciary
duties under 29 U.S.C. Section 1104. In order to state a claim
under Section 1104, the Plaintiffs must show that the Defendants
(1) acted as fiduciaries, (2) breached their fiduciary duties, and
(3) thereby caused a loss to the Plan, citing Braden v. Wal-Mart
Stores, Inc., 588 F.3d 585, 593 (8th Cir. 2009).
At issue is whether the Plaintiffs have plausibly alleged that the
Defendants breached their fiduciary duties under ERISA by (1)
failing to investigate and select lower cost alternative funds, (2)
failing to monitor or control the Plan's recordkeeping expenses,
and (3) allowing their recordkeeping affiliates to directly benefit
from the Plan at the expense of participants.
As to failure to investigate and select lower cost alternative
funds, Judge Doty finds that (i) the Plaintiffs' allegations are
insufficient to plausibly allege imprudence, (ii) the allegations
draw a plausible inference that the Defendants failed to negotiate
for a better deal or failed to realize they should have done so,
(iii) the Plaintiffs have not adequately pleaded that collective
trusts are a meaningful benchmark to compare to mutual fund
"equivalents," (iv) the passively managed and actively managed
funds identified in the complaint are not meaningful benchmarks.
In sum, the Plaintiffs may proceed on their breach of prudence
claim premised on the availability of lower cost institutional
share classes available to the Plan, but they may not proceed on
the other theories alleged in the complaint.
As to failure to monitor or control the Plan's recordkeeping
expenses, Judge Doty finds that the Plaintiffs have sufficiently
alleged an imprudence claim based on excessive recordkeeping fees.
As a preliminary matter, the contract between the Defendants and
their recordkeepers--to which the Plaintiffs are not privy--cannot
be used to defeat the Plaintiffs' claim at this stage.
The Plaintiffs allege that the Plan has a large pool of
participants and assets, that the recordkeeping market is highly
competitive, and that defendants paid higher than reasonable
recordkeeping fees despite their market strength. Moreover, the
complaint alleges that superior or comparable recordkeeper plans
were available. The Court, and others within the Eighth Circuit,
have found similar pleadings sufficient to survive a motion to
dismiss. The Plaintiffs thus may proceed with the breach of
prudence claim under the theory of excessive recordkeeping fees.
As to allowing their recordkeeping affiliates to directly benefit
from the Plan at the expense of participants, the Judge holds that
the Plaintiffs have not sufficiently pleaded a breach of loyalty
claim. It is not enough for the Plaintiffs to allege that the
Defendants' actions benefitted third-party recordkeepers; the
Plaintiffs must plead that they did so with the goal of benefitting
Financial Engines and Alight. The Plaintiffs have failed to do so.
The Judge will allow the breach of fiduciary duty claim to proceed
as set forth.
Finally, the Defendants lastly argue that Count II, based on the
alleged failure to monitor fiduciaries, is wholly derivative of the
breach of fiduciary duty claim and should also be dismissed.
Because the Plaintiffs have sufficiently stated a claim for breach
of fiduciary duty, Judge Doty finds that the Plaintiffs have also
sufficiently pleaded the failure to monitor claim.
Accordingly, Judge Doty granted in part and denied the Defendants'
motion to dismiss as set forth.
A full-text copy of the Court's Feb. 9, 2021 Opinion is available
at https://tinyurl.com/1pq2yd7f from Leagle.com.
Mark K. Gyandoh, Esq. -- markg@capozziadler.com --and Capozzi
Adler, 312 Old Lancaster Road, in Merion Station, Pennsylvania,
Vernon J. Vander Weide, Esq. -- vjvanderweide@locklaw.com -- and
Lockridge Grindal Nauen PLLP, 100 Washington Ave. South, Suite
2200, in Minneapolis, Minnesota, counsel for the Plaintiffs.
Christopher J. Boran, Esq. -- christopher.boran@morganlewis.com --
and Morgan, Lewis & Bockius LLP, 77 West Wacker Drive, Suite 500,
Chicago, Illinois, and Stephen P Lucke, Esq. --
lucke.steve@dorsey.com -- and Dorsey & Whitney LLP, 50 South 6th
Street, Suite 1500, Minneapolis, Minnesota, counsel for the
Defendants.
MASSACHUSETTS: Dismissal of Donahue Suit v. Trial Court Affirmed
----------------------------------------------------------------
In the case, WILLIAM DONAHUE vs. TRIAL COURT OF THE COMMONWEALTH OF
MASSACHUSETTS, Case No. 20-P-46 (Mass. App.), the Appeals Court of
Massachusetts, Suffolk, affirmed the Superior Court's order
granting the Defendant's motion to dismiss the amended complaint.
In 2018, Plaintiff Donahue, commenced the putative class action on
behalf of himself and all court officers and probation officers who
have not been paid for wages and overtime earned. Thereafter,
Donahue amended his complaint and moved to certify a class. The
amended complaint alleged statutory claims for violations of the
Fair Labor Standards Act ("FLSA"); the Massachusetts Wage Act; and
the Massachusetts overtime statute as well as purported
"common-law" claims for unpaid wages and overtime.
Mr. Donahue is a court officer employed by the Trial Court.
Pursuant to the collective bargaining agreement ("CBA") between
court officers, associate court officers, and probation officers
and the Trial Court, court officers are not directly paid for the
first seventy-five hours of accrued overtime, but instead receive
compensatory time off in lieu of pay for overtime worked. Court
officers are generally limited to accumulating 75 hours of such
compensatory time, but they may exceed that cap based on special
circumstances requiring additional overtime work.
Although the Trial Court pays the officer for any unused
compensatory time when a court officer's employment ends, the CBA
does not establish how accrued overtime over the seventy-five hour
limit is to be paid during a court officer's term of employment.
Instead, the CBA contemplates a separate negotiation in which the
Trial Court and the court officers' union will develop a policy
that will authorize "a limited amount of accrued compensatory time
to be paid at the end of each fiscal year" to court officers who
are over the seventy-five hour cap, if funds are available.
Mr. Donahue's amended complaint alleges that the Trial Court failed
to pay "more than $10 million in wages and overtime compensation"
to him and other court officers and probation officers, but it does
not specify the particular amounts of compensation at issue or the
time periods during which such compensation accrued. He appears to
contend that he still has some compensatory time accrued from prior
overtime work for which he has not been paid, and that he is
entitled to be paid for this balance without regard to the terms of
the CBA.
The Trial Court moved to dismiss the amended complaint as barred by
sovereign immunity, and for failure to state a claim. A Superior
Court judge allowed the motion, and Donahue timely appealed the
dismissal of the amended complaint.
Sovereign immunity
In counts II, III, and IV of the amended complaint, Donahue alleges
that the Trial Court violated the FLSA; the Wage Act; and the
Commonwealth's overtime statute, by allegedly failing to pay him,
and others similarly situated, overtime wages and wages exceeding
$10 million, entitling the Plaintiffs to damages in excess of $30
million and attorney's fees.
The Appellate Court opines that all three claims are barred by
sovereign immunity, and were properly dismissed.
First, in Alden v. Maine, 527 U.S. 706 (1999), a group of probation
officers filed suit against their employer, the State of Maine, in
State court. The officers alleged that the State had violated the
overtime provisions of the FLSA. The U.S. Supreme Court held that
sovereign immunity prevented a private party from suing a State in
that State's court to enforce the FLSA.
The Appellate Court holds that the same is true in the case.
Donahue does not claim that the Trial Court waived its sovereign
immunity or otherwise consented to be sued by its employees under
the FLSA. In fact, he offers nothing to counter the Trial Court's
sovereign immunity claim. The motion judge properly dismissed
Donahue's FLSA claim as barred by sovereign immunity.
Next, in an attempt to fit within another facet of the limited
waiver of sovereign immunity found in G. L. c. 149, Section 148,
Donahue claims that he is employed in a "penal institution" because
prisoners may be temporarily held at court houses for court
appearances.
The Appellate Court disagrees. It explains that G. L. c. 125,
Section 1, defines the term "penal institution" as follows: "As
used in G. L. c. 125 and elsewhere in the general laws, unless the
context otherwise requires 'penal institution' means correctional
facility." General Laws c. 125, Section 1 (n), defines a "state
correctional facility" to mean "any correctional facility owned,
operated, administered or subject to the control of the department
of correction."
While court house holding cells are utilized to confine criminal
defendants before or after their court appearances, that function
is ancillary to the overall purpose of a court house, the Appellate
Court opines. As the motion judge properly held, a court house is
a justice center where both civil and criminal matters are
adjudicated, not a "penal institution" or "correctional facility"
for "the custody, control and rehabilitation of committed
offenders." In fact, when it applies the ordinary and common sense
meaning of "penal institution," the Appellate Court concludes that
it refers to State prisons and houses of correction. Again,
mindful of the narrow construction it must apply to waivers of
sovereign immunity, it concludes that court houses are not penal
institutions. The motion judge properly dismissed Donahue's Wage
Act claim as barred by sovereign immunity.
Last, in count IV of the amended complaint, Donahue claims that the
Trial Court has failed to pay him for numerous hours of overtime,
in violation of G. L. c. 151, Section 1A.
The Appellate Court disagrees. As the motion judge properly noted,
the Commonwealth's obligation to pay overtime may be found in G. L.
c. 149, Section 30B, which does not provide a private right of
action. Rather, the authority to enforce G. L. c. 149, Section
30B, rests with the Attorney General. Accordingly, the motion
judge properly dismissed the G. L. c. 151, Section 1A, claim as
barred by sovereign immunity.
Common-law claims
In counts I and V of the amended complaint, Donahue claims that the
Trial Court has failed to pay him wages and overtime compensation
in violation of common law.
The Appellate Court again disagrees. It opines that at common law,
an employee's right to seek recovery of alleged unpaid wages
sounded in contract or quasi-contract, citing Lipsitt v. Plaud, 466
Mass. 240, 240, 247-248 (2013). However, Donahue made no reference
to the CBA in the amended complaint and he has not asserted a
breach of contract claim. Moreover, Donahue has failed to provide
any authority for his claim that he possessed a right at common
law, that has not been superseded by statute, to earn
time-and-a-half pay for working more than forty hours per week, or
for unpaid wages. For that reason alone, the claim is waived. In
any event, as the motion judge properly held, the right to overtime
compensation is purely a creature of statute. The motion judge
properly dismissed Donahue's common-law claims.
In light of the foregoing reasons, the Appellate Court affirmed the
judgment.
A full-text copy of the Court's Feb. 5, 2021 Opinion is available
at https://tinyurl.com/a0931s4u from Leagle.com.
Christopher J. Trombetta -- chris@trombettalaw.com -- for the
plaintiff.
Jesse M. Boodoo, Assistant Attorney General, for the defendant.
MDL 2670: Bid to Stay Pending Motions in Antitrust Suit Denied
--------------------------------------------------------------
In the case, IN RE PACKAGED SEAFOOD PRODUCTS ANTITRUST LITIGATION.
This document relates to: DIRECT PURCHASER CLASS ACTION, Case No.
3:15-md-02670-JLS-MDD (S.D. Cal.), Judge Janis L. Sammartino of the
U.S. District Court for the Southern District of California denied
without prejudice the joint motion filed by COSI Defendants
Tri-Union Seafoods LLC, doing business as Chicken of the Sea
International, and Thai Union Group PC, and the Direct Purchaser
Plaintiff Class, to stay their pending motions.
The COSI Defendants and DPPs have reached a settlement in
principle. While they finalize the settlement, and until it
receives Court approval, they request to stay, i.e., "hold in
abeyance, and not decide" three pending motions.
The first motion the parties request to stay is motion for partial
summary judgment against Defendant Tri-Union filed by Winn-Dixie
Plaintiffs Associated Wholesale Grocers, Inc. ("AWG"), Winn-Dixie
Stores, Inc., and Bi-Lo Holdings, LLC. Judge Sammartino denied the
request is denied because none of the moving parties is a party to
the pending Joint Motion. Although DPPs filed a notice of joinder,
she declines to stay a motion without consent of the moving
parties.
Second is motion to exclude the testimony of seven defense experts
filed by DPPs, Indirect Purchaser End Payer Plaintiff Class
("EPPs"), Commercial Food Preparer Plaintiff Class, AWG, W. Lee
Flowers & Co., and Winn-Dixie Plaintiffs. The request to stay
applies only to the COSI Defendants' experts Michael Moore, Randal
Heeb, and Arthur Laby. DPPs, along with AWG and Winn-Dixie
Plaintiffs, requested the exclusion of these experts. The Judge
again declines to stay thes motion as requested because the
relevant portions of the motion were filed jointly with AWG and
Winn-Dixie Plaintiffs who are not represented in the pending Joint
Motion.
Third is Thai Union PCL's ("TUG") summary judgment motion relating
to its vicarious liability for Chicken of the Sea International's
actions. In addition to DPPs, many other Plaintiffs opposed the
motion, including EPPs, AWG, W. Lee Flowers & Co., Winn-Dixie
Plaintiffs, Publix Plaintiffs, Affiliated Foods Plaintiffs, and
other direct-action plaintiffs. Although TUG could withdraw its
own motion, the Judge also declines to stay it without consent of
all opposing parties.
For the foregoing reasons, Judge Sammartino denied the requests to
stay the three pending motions, and to stay the related motion to
seal. She denied the Joint Motion without prejudice to renewing
with the consent of all relevant parties as discussed. She notes
that a footnote in the Joint Motion states that the "COSI
Defendants have agreed to settle with all the Plaintiffs that have
filed suits in this MDL." Accordingly, it appears possible to
obtain the necessary consents to renew the pending Joint Motion.
A full-text copy of the Court's Feb. 9, 2021 Order is available at
https://tinyurl.com/95q0c6yw from Leagle.com.
MDL 2724: Court Rules on Picks for Antitrust Suit Bellwether Cases
------------------------------------------------------------------
In the case, IN RE GENERIC PHARMACEUTICALS PRICING ANTITRUST
LITIGATION. THIS DOCUMENT RELATES TO ALL ACTIONS, Case No.
16-MD-2724 (E.D. Pa.), Judge Cynthia M. Rufe of the U.S. District
Court for the Eastern District of Pennsylvania issued her
Memorandum Opinion on the selection of bellwether cases.
On July 13, 2020, the Court adopted Special Master David Marion's
Third Report and Recommendation, selecting as bellwether cases the
clobetasol, clomipramine, and pravastatin Direct Purchaser ("DPP")
and End-Payer ("EPP") proposed class-action cases and the State
Plaintiffs' case asserting an overarching conspiracy with Defendant
Teva Pharmaceuticals USA, Inc. at its center.
Teva now moves for reconsideration of the selection of the
pravastatin case and the overarching Teva-centric case because,
approximately six weeks after the bellwether selection, a federal
grand jury returned an indictment charging Teva with criminal
antitrust violations.
The indictment concerns the alleged price-fixing of 13 drugs, all
of which are in the States' Teva-centric complaint, including
pravastatin, which is one of the single-drug bellwether cases
(clobetasol and clomipramine are not part of the criminal case).
Teva, joined by Glenmark, argues that the indictment, as well as
pending criminal charges in a separate case against Ara Aprahamian,
fundamentally undermine the suitability of the Teva-centric and
pravastatin cases as effective bellwethers. According to Teva, the
possibility that key witnesses will assert their rights against
self-incrimination will leave gaps in the factual record and in the
alternative, the possibility that the witnesses will testify will
cause Teva severe hardship as it will provide a preview of Teva's
defenses in the criminal case.
The Plaintiffs oppose the motion for reconsideration arguing that
changing the bellwether cases now would set back the entire course
of the MDL. They also argue that the cases in the MDL have many
overlapping Defendants and witnesses such that these issues will
arise no matter which cases are selected as bellwethers. According
to them, the criminal proceedings will not overwhelm the bellwether
cases given the number of the Defendants. Additionally, the Teva
indictment does not constitute new information warranting
reconsideration because in the run-up to the bellwether decision,
the other Defendants had admitted to conspiring with Teva,
including on pravastatin.
In response to Teva's concerns that the government might use
discovery in the bellwether cases to obtain a strategic advantage
in the criminal case, the Plaintiffs argue that the Court has
options available such as sealing discovery and preventing the use
of depositions outside of the MDL. They also argue that selecting
different bellwether cases would exclude certain key Defendants
from moving toward trial at this stage.
Judge Rufe notes that the Court reached the bellwether decision
after careful consideration and the parties have moved forward in
reliance on that decision for the last several months. However,
the indictment of the key corporate Defendant in the Teva-centric
and pravastatin bellwether cases constitutes a significant change
in circumstances. She says although the Plaintiffs argue that only
three of the 35 Defendants in the Teva-centric case are facing
criminal charges and that many more drugs are at issue than are
cited in the indictment, the Amended Complaint is undeniably
structured with a focus on Teva, defining the alleged schemes as
Teva/Mylan, Teva/Sandoz, Teva/Lupin, and so forth.
In the two bellwether cases at issue, Teva is not simply one
Defendant among many. Although a corporate Defendant cannot assert
a Fifth Amendment right on its own behalf, there are individual
interests at stake. Whether certain key witnesses can or will be
deposed pending the resolution of the criminal case implicates due
process concerns. Given the broad scope of the bellwether cases,
particularly the State Plaintiffs Teva-centric case, Judge Rufe
opines that sealing documents and entering protective orders may
not offer a complete solution.
Judge Rufe also notes that the impact of the filing of the
indictment on the MDL proceedings is magnified by the ongoing
COVID-19 pandemic that has utterly upended the ability of the
courts to conduct criminal trials. The Teva-Glenmark criminal case
has been designated complex and the parties have proposed
scheduling orders that would lead to trial in either September 2021
or May 2022. Although it is certainly possible that the criminal
case could go to trial by one of those dates, the Court knows
firsthand the havoc the pandemic has wrought on trial schedules,
and until it is possible to hold a substantial number of trials
safely, the number of criminal defendants awaiting their day in
court continues to grow. The risk of delay and of scheduling
conflicts with the criminal case is real.
The Plaintiffs may be correct that the complications discussed can
be managed, but seeing the rocky shoals ahead, the Judge deems it
prudent to adjust course now, rather than risk capsizing the
progress of the MDL when it is too late to turn back. As the Court
previously held, the purpose of a bellwether selection is to
determine a course that is reasonable and fair and "will promote
the just and efficient conduct of" the cases constituting the MDL.
The Court is no longer convinced that the prioritization of the
Teva-centric and pravastatin cases will achieve that goal.
Finally, the State Plaintiffs' case centered on Heritage
Pharmaceuticals, Inc., was filed before the Teva-centric case and
was considered as an alternative in the original bellwether
selection. Judge Rufe is confident that it is an appropriate
choice for a bellwether along with the clomipramine and clobetasol
DPP and EPP proposed class actions. However, she will grant the
parties a (brief) opportunity to be heard before finalizing the
selection.
An appropriate pretrial order will be entered.
A full-text copy of the Court's Feb. 9, 2021 Memorandum Opinion is
available at https://tinyurl.com/3c84upv8 from Leagle.com.
MDL 2724: Report & Recommendation in Antitrust Suit Approved
------------------------------------------------------------
In the case, IN RE PRICING ANTITRUST LITIGATION. THIS DOCUMENT
RELATES TO ALL ACTIONS, Case No. MDL 2724, 16-MD-2724 (E.D. Pa.),
Judge Cynthia M. Rufe of the U.S. District Court for the Eastern
District of Pennsylvania approved the Second Report and
Recommendation ("R&R") of the Special Discovery Master, which
recommended denying an informal motion by the Plaintiff to compel
supplemental productions of transactional data covering time
periods after Dec. 31, 2018.
In September 2018, the Plaintiffs filed a motion to compel, arguing
that the relevant time period for the Defendant's production of
structured or transactional data (the terms are used
interchangeably) should be "two full calendar years (beginning
January 1) before the first drug-specific class period in which a
Defendant is implicated through Dec. 31, 2017, subject to annual
supplements thereafter, until such time as agreed by the parties or
by Order of the Court." The motion was referred to the Special
Discovery Master, who by letter dated Jan. 8, 2019, suggested to
the parties that the relevant time period should be "two years
before the first complained-of price increase involving the
particular drug, through Dec. 31, 2018."
The Plaintiffs contended that the relevant time period should
include specific start and end dates for each Defendant. After
additional discussions, all parties agreed to resolve the motion,
and the resolution was memorialized by a letter dated April 3,
2019, that defined the relevant time period as "two full calendar
years (beginning January 1) before the first complained-of price
increase involving the particular drug, through Dec. 31, 2018."
The April 2019 agreement included a provision that the parties
retained "the right to seek or object to additional discovery
beyond the parameters" of the agreement "if warranted by additional
information or developments in the MDL."
On June 23, 2020, the Plaintiffs submitted a letter to the Special
Masters identifying three areas of disagreement among the parties,
including supplemental productions of transactional data in the
future. After further discussion and briefing, the Special
Discovery Master "recommended that the parties continue to adhere
to the April 3, 2019 agreement regarding the production of
transactional data, including for the Defendants or the drugs added
to the MDL since that time, and that no requirement to supplement
the transactional data production be imposed at this time." The
Plaintiffs did not agree, and the Special Discovery Master issued
the R&R.
The R&R determined that the Plaintiffs may obtain post-2018
transactional data if new information or developments warrant it.
It also stated that to the extent the Plaintiffs argue that they
are prevented from seeking damages for later years, they may use
models or estimates to establish damages. The R&R also notes that
it is beyond its scope to recommend, as the Plaintiffs request,
that the Defendants be precluded from objecting to the Plaintiffs'
use of such alternative methods of damages calculations.
In their objections, the Plaintiffs argue that the post-2018 data
is highly relevant, and denial of that data to them will create
inefficiencies and additional disputes, requiring them to rely upon
expert analyses instead of actual data. The Plaintiffs contend
that the evidence is related to liability and causation (and may
show that the collusion continued beyond 2018). They also argue
that, if prices remained artificially high after that time, it is
relevant to money damages and to determining disgorgement.
With regard to the April 2019 agreement, the Plaintiffs argue that
"the Defendants suggested that as of the time of the briefing in
late 2018 that preceded the April 2019 Agreement, there was no
information showing that data from later time periods was
relevant." They argue that "now, in late 2020, information exists
showing that prices have remained elevated. In addition, the
filing of more comprehensive complaints has changed the contours of
the litigation," and the Court has made bellwether selections.
The Defendants argue that the Plaintiffs requested annual data
supplementation in the 2018 motion to compel and that the April
2019 agreement resolved the issue and gave the Plaintiffs data for
a year beyond what they originally sought. They contend that the
Plaintiffs never raised the issue of supplementation until last
summer during a dispute over the start date for new products that
were not in the MDL at the time of the April 2019 agreement. The
Defendants also assert the Plaintiffs have not shown changed
circumstances warranting supplementation.
Judge Rufe finds that the Plaintiffs acknowledge that they need to
explain and justify data-supplementation requests based on the
circumstances and additional information. However, they simply
have not done so yet. The Plaintiffs have not shown how bellwether
selection itself is a basis for supplementation at this time.
Although in the objections the Plaintiffs argued that prices
remaining high would justify supplementation, the Plaintiffs stated
at oral argument that supplementation would also be warranted if
prices had not remained elevated.
Where parties have agreed to precise limitations on the financial
documentation to which they are entitled, the Judge holds the
Plaintiffs to that agreement. The Plaintiffs may obtain
supplemental data when additional information or developments in
the MDL warrant.
Upon de novo review of the R&R of the Special Discovery Master as
to the Plaintiffs' Motion to Compel Supplemental Productions of
Transaction Data, the Plaintiffs' objections, the briefing, and
after oral argument, Judge Rufe overruled the Objections and
approved the R&R as set forth in her Order. She granted the
related Motions to Seal as the parties have identified a
compelling, countervailing private interest outweighing the
public's interest in access.
A full-text copy of the Court's Feb. 9, 2021 Order is available at
https://tinyurl.com/csfeb7oi from Leagle.com.
MEDICUS HEALTHCARE: Moreau Seeks FLSA Conditional Certification
---------------------------------------------------------------
In the class action lawsuit captioned as LEAH MOREAU, Individually
and for Others Similarly Situated, v. MEDICUS HEALTHCARE SOLUTIONS,
LLC and MEDICUS HOSPITALIST SERVICES, LLC., Case No.
1:20-cv-01107-JD (D.N.H.), the Plaintiff asks the Court to enter an
order granting her motion for conditional certification, judicial
notice, and for disclosure of the names and contact information of
potential "opt-in" plaintiffs.
This is a putative collective action under the Fair Labor Standards
Act (FLSA), seeking overtime pay.
The Plaintiff is a nurse practitioner who contracted with Medicus
Hospitalist Services to find her temporary placements and then
agreed to work at a hospital in Houston for approximately ten days
in April 2020, 15 days in May, and a 12-day spread over June to
August 2020. During most of that time she also worked for herself
in a practice she shares with her husband, a plastic surgeon.
The Defendants are in the business of finding temporary healthcare
vacancies at hospitals and other facilities around the country and
connecting medical professionals willing to fill the vacancies.
A copy of the Plaintiff's motion to certify class dated Feb. 5,
2020 is available from PacerMonitor.com at https://bit.ly/3tTzBHr
at no extra charge.[CC]
The Plaintiff is represented by:
Richard M. Schreiber, Esq.
Andrew W. Dunlap, Esq.
JOSEPHSON DUNLAP , LLP
11 Greenway Plaza, Suite 3050
Houston, TX 77046
Telephone: (713) 352-1100
Facsimile: (713) 352-3300
E-mail: adunlap@mybackwages.com
rschreiber@mybackwages.com
- and -
Richard J. (Rex) Burch, Esq.
BRUCKNER BURCH, PLLC
8 Greenway Plaza, Suite 1500
Houston, TX 77046
Telephone: 713-877-8788
Facsimile: 713-877-8065
E-mail: rburch@brucknerburch.com
- and -
Heather M. Burns, Esq
UPTON & HATFIELD, LLP
10 Centre Street
Concord, NH 03301
Telephone: (603) 224-7791
Facsimile: (603) 224-0320–
E-mail: hburns@uptonhatfield.com
MESA AIR: IPO-Related Putative Class Lawsuits in Arizona Underway
-----------------------------------------------------------------
Mesa Air Group, Inc. said in its Form 10-Q Report filed with the
Securities and Exchange Commission on February 9, 2021, for the
quarterly period ended December 31, 2020, that the company
continues to defend two putative class action suits related to its
initial public offering ("IPO") in August 2018.
The company is subject to two putative class action lawsuits
alleging federal securities law violations in connection with its
IPO, one in the Superior Court of the State of Arizona and one in
the U.S. District Court of Arizona.
These purported class actions were filed in March and April 2020
against the Company, certain current and former officers and
directors, and certain underwriters of the Company's IPO.
The state and federal lawsuits each make the same or similar
allegations of violations of the Securities Act of 1933, as
amended, for allegedly making materially false and misleading
statements in, or omitting material information from, the company's
IPO registration statement.
The plaintiffs seek unspecified monetary damages and other relief.
Mesa Air said, "As of December 31, 2020, our management believed,
after consultation with legal counsel, that the ultimate outcome of
the two putative class action lawsuits and such other routine legal
matters are not likely to have a material adverse effect on our
financial position, liquidity or results of operations."
Mesa Air Group, Inc. operates as an airline company that provides
regional air services in the United States, Canada, and Mexico. The
Company also operates as an online retailer of apparel and
accessories. Mesa Air Group, Inc. was formerly known as Mesa Air
Shuttle, Inc. The Company was founded in 1982 and is based in
Phoenix, Arizona.
MISSISSIPPI: Bid to Certify Inmates Class in Bennett v. DOC Denied
------------------------------------------------------------------
In the case, DEVIN BENNETT, Plaintiff v. COMMISSIONER PELICIA HALL,
ET AL., Defendants, Case No. 4:20CV26-JMV (N.D. Miss.), Magistrate
Judge Jane M. Virden of the U.S. District Court for the Northern
District of Mississippi, Greenville Division, denied the
Plaintiff's motion for class certification.
The matter comes before the Court on the Plaintiff's motion to
certify the present case as a class action, with a class consisting
of the Death Row inmates within the Mississippi Department of
Corrections.
Magistrate Judge Virden explains that class certification is
governed by Rule 23 of the Federal Rules of Civil Procedure, which
allows for certification of a class of plaintiffs only if four
prerequisites are met: (1) the class is so numerous that joinder of
all members is impracticable; (2) there are questions of law or
fact common to the class; (3) the claims or defenses of the
representative parties are typical of the claims or defenses of the
class; and (4) the representative parties will fairly and
adequately protect the interests of the class.
The Magistrate Judge finds that the Plaintiff has not met the first
criteria, as only 39 inmates reside on Death Row. The Plaintiff
notes that the Fifth Circuit and the Court have previously
permitted class action suits with 33 and 51 members, respectively.
However, a trial court has broad discretion in determining whether
to certify a class action, including both the assessment of
individual requirements for class certification and the ultimate
determination of whether to certify the class.
The Magistrate Judge believes that the case should proceed as an
action to determine whether the Individual Plaintiff's rights have
been violated, rather than the rights of Death Row inmates, in
general. As such, she denied the Plaintiff's request to certify a
class. As the case will proceed for the Plaintiff as an
individual, she also denied his request to appoint class counsel.
A full-text copy of the Court's Feb. 9, 2021 Order is available at
https://tinyurl.com/y4hnw9of from Leagle.com.
MONDELEZ INT'L: Continues to Defend Wheat Trading-Related Suit
--------------------------------------------------------------
Mondelez International, Inc. said in its Form 10-K report filed
with the U.S. Securities and Exchange Commission on February 5,
2021, for the fiscal year ended December 31, 2020, that the company
continues to defend a consolidated class action suit related to
wheat trading contracts.
On April 1, 2015, the U.S. Commodity Futures Trading Commission
("CFTC") filed a complaint against Kraft Foods Group and Mondelez
Global LLC in the U.S. District Court for the Northern District of
Illinois, Eastern Division following its investigation of
activities related to the trading of December 2011 wheat futures
contracts that occurred prior to the spinoff of Kraft Foods Group.
The complaint alleges that Kraft Foods Group and Mondelez Global
(1) manipulated or attempted to manipulate the wheat markets during
the fall of 2011; (2) violated position limit levels for wheat
futures and (3) engaged in non-competitive trades by trading both
sides of exchange-for-physical Chicago Board of Trade wheat
contracts.
The CFTC seeks civil monetary penalties of either triple the
monetary gain for each violation of the Commodity Exchange Act or
$1 million for each violation of Section 6(c)(1), 6(c)(3) or
9(a)(2) of the Act and $140,000 for each additional violation of
the Act, plus post-judgment interest; an order of permanent
injunction prohibiting Kraft Foods Group and Mondelez Global from
violating specified provisions of the Act; disgorgement of profits;
and costs and fees.
On August 15, 2019, the District Court approved a settlement
agreement between the CFTC and Mondelēz Global. The terms of the
settlement, which are available in the District Court's docket, had
an immaterial impact on our financial position, results of
operations and cash flows.
On October 23, 2019, following a ruling by the United States Court
of Appeals for the Seventh Circuit regarding Mondelez Global's
allegations that the CFTC and its Commissioners violated certain
terms of the settlement agreement and the CFTC's argument that the
Commissioners were not bound by the terms of the settlement
agreement, the District Court vacated the settlement agreement and
reinstated all pending motions that the District Court had
previously mooted as a result of the settlement.
The parties have reached a new agreement in principle to resolve
the CFTC action and have submitted the settlement to the District
Court for approval.
The District Court cancelled a scheduled conference on June 4, 2020
to discuss the proposed settlement agreement but indicated that it
would rule on pending motions in due course.
Additionally, several class action complaints were filed against
Kraft Foods Group and Mondelez Global in the District Court by
investors in wheat futures and options on behalf of themselves and
others similarly situated.
The complaints make similar allegations as those made in the CFTC
action, and the plaintiffs are seeking class action certification;
monetary damages, interest and unjust enrichment; costs and fees;
and injunctive, declaratory and other unspecified relief. In June
2015, these suits were consolidated in the District Court.
On January 3, 2020, the District Court granted plantiffs' request
to certify a class.
Mondelez said, "It is not possible to predict the outcome of these
matters; however, based on our Separation and Distribution
Agreement with Kraft Foods Group dated as of September 27, 2012, we
expect to bear any monetary penalties or other payments in
connection with the CFTC action and the class action. Although the
CFTC action and the class action complaints involve the same
alleged conduct, a resolution or decision with respect to one of
the matters may not be dispositive as to the outcome of the other
matter."
Mondelez International, Inc., through its subsidiaries,
manufactures and markets snack food and beverage products
worldwide. It offers biscuits, including cookies, crackers, and
salted snacks; chocolates; gums and candies; coffee and powdered
beverages; and cheese and grocery products. Mondelez International,
Inc. was founded in 2000 and is based in Deerfield, Illinois.
NATIONAL ASSOCIATION: Class Status Bid Filing Due Feb. 22
---------------------------------------------------------
In the class action lawsuit captioned as JOSHUA SITZER AND AMY
WINGER, SCOTT AND RHONDA BURNETT, AND RYAN HEDRICKSON, on behalf of
themselves and all others similarly situated, v. THE NATIONAL
ASSOCIATION OF REALTORS, REALOGY HOLDINGS CORP., HOMESERVICES OF
AMERICA, INC., BHH AFFILIATIES, LLC, HSF AFFILIATES, LLC, RE/MAX,
LLC, and KELLER WILLIAMS REALTY, INC., Case No. 4:19-cv-00332-SRB
(W.D. Mo.), the Plaintiffs ask the Court to enter an order
extending the deadlines by 90 days for class certification
discovery cutoff, disclosure of class certification experts, class
certification briefing, and motions to strike class certification
experts and/or testimony, as follows:
Current Proposed new
deadline deadline
Cutoff for discovery on Feb. 8, 2021 May 8, 2021
class certification
issues:
The Plaintiffs' disclosure Feb. 22, 2021 May 24, 2021
of expert witness(es) they
intend to rely on for class
certification:
Motion for class Feb. 22, 2021 May 24, 2021
certification:
The Defendants' disclosure April 30, 2021 July 30, 2021
of expert witness(es)
for class certification
issues:
The Defendants' brief April 30, 2021 July 30, 2021
in opposition to class
certification:
The Defendants' motions April 30, 2021 July 30, 2021
to strike class
certification expert
designations or preclude
class certification expert
testimony:
The Plaintiffs' reply brief June 16, 2021 Sept. 15, 2021
in support of class
certification:
The Plaintiffs' brief June 16, 2021 Sept. 15, 2021
in opposition to motions
to strike class
certification expert
designations or
preclude class
certification expert
testimony:
The Defendants' reply July 14, 2021 Oct. 13, 2021
brief in support of
motion to strike class
certification experts:
The National Association of Realtors (NAR) is a national
organization of real estate brokers, known as realtors, created to
promote the real estate profession and foster professional behavior
in its members.
A copy of the Plaintiffs' motion dated Feb. 5, 2020 is available
from PacerMonitor.com at https://bit.ly/3rMCfge at no extra
charge.[CC]
The Plaintiffs are represented by:
Brandon J.B. Boulware, Esq.
Jeremy M. Suhr, Esq.
Erin D. Lawrence, Esq.
BOULWARE LAW LLC
1600 Genessee Street, Suite 416
Kansas City, MO 64102
Telephone: (816) 492-2826
Facsimile: (816) 492-2826
E-mail: brandon@boulware-law.com
jeremy@boulware-law.com
erin@boulware-law.com
- and -
Matthew L. Dameron, Esq.
Eric L. Dirks, Esq.
Amy R. Jackson, Esq.
Courtney M. Stout, Esq.
WILLIAMS DIRKS DAMERON LLC
1100 Main Street, Suite 2600
Kansas City, MO 64105
Telephone: (816) 945-7110
Facsimile: (816) 945-7118
E-mail: matt@williamsdirks.com
dirks@williamsdirks.com
amy@williamsdirks.com
cstout@williamsdirks.com
NATIONAL ASSOCIATION: Class Status Deadline Extension Nixed as Moot
-------------------------------------------------------------------
In the class action lawsuit captioned as Sitzer, et al., v.
National Association of Realtors, et al., Case No. 4:19-cv-00332
(W.D. Mo.), the Hon. Judge Stephen R. Bough entered an order
denying as moot the Plaintiffs' Motion for Extension of Certain
Class Certification Deadlines in Amended Scheduling Order.
Because of the subsequent filing of the Consent Motion for
Extension of Class Certification Deadlines in Amended Scheduling
Order, the motion is denied as moot, Judge Bough says.
The nature of suit states Other Statutes – Antitrust.
The National Association of REALTORS (TM) is a leading force in
organized real estate, dedicated to its members' success. NAR
offers you the chance to build your expertise and position yourself
as an ethical professional your clients and community can rely
on.[CC]
NATIONSTAR MORTGAGE: Court Denies Partial Bid to Dismiss Ellis Suit
-------------------------------------------------------------------
In the case, JAMES ELLIS and DARRYL ELLIS, Individually and on
Behalf of All Others Similarly Situated, Plaintiffs v. NATIONSTAR
MORTGAGE, LLC d/b/a MR. COOPER, Defendant, Case No. 19-cv-661 (E.D.
Wis.), Judge Lynn Adelman of the U.S. District Court for the
Eastern District of Wisconsin denied the Defendant's partial motion
to dismiss.
The Plaintiffs' class action complaint alleges violations of the
Electronic Funds Transfer Act, the Truth in Lending Act, ("TILA"),
the Real Estate Settlement Procedures Act ("RESPA"), and state
law.
The Plaintiffs closed on the purchase of their home in August 2016.
According to the amended complaint, their mortgage was serviced by
Pacific Union Financial, LLC ("PUF"), which was authorized to
collect payments by withdrawing funds from the Plaintiffs' checking
account every 14 days.
On Feb. 1, 2019, the Plaintiffs received notice from PUF that
servicing of their mortgage loan was being transferred to
Nationstar. The letter also stated that PUF would stop collecting
payments on Jan. 31, 2019 and that the Plaintiffs should expect a
delay with respect to the Defendant's first collection. The
Plaintiffs called the Defendant immediately after receiving the
letter to make sure that payments would be automatically withdrawn
every 14 days (like with PUF), which the Defendant allegedly
confirmed. Id.,
Despite the indication that PUF payments would stop January 31, PUF
initiated an automatic payment from the Plaintiffs' checking
account on February 1. Then, on February 8, the Defendant
initiated another automatic payment which caused the Plaintiffs'
checking account to be overdrawn, incurring a $34 overdraft fee
(later reimbursed by the Defendant) and forcing them to delay or
forego some purchases. PUF also allegedly did not pay interest on
the related escrow account, which the Plaintiffs were required to
keep for paying property taxes, insurance, etc., and generated more
income than it cost to maintain the account.
The Defendant moves to dismiss Counts II, III, IV, V, and VII.
Counts II, V, and VII relate to the allegations that it failed to
pass on net income derived from the Plaintiffs' interest bearing
escrow fund in violation of the TILA, RESPA, and Wisconsin state
law. Counts III and IV allege RESPA violations for an unauthorized
withdrawal of funds from the Plaintiffs' account and the
Defendant's failure to provide adequate notice of the transfer in
loan servicing.
The Defendant argues that the Plaintiffs' escrow-related claims in
Counts II, V, and VII should be dismissed for failing to meet
pleading standards. The Plaintiffs' Count II TILA claim is also
time-barred by the one-year statute of limitations and Counts III
and IV should be dismissed because they fail to state direct and
plausible allegations of actual damages, a required element of
RESPA claims. The Plaintiffs assert that the allegations are
sufficient; the Defendant's position is based on an inapplicable
heightened standard. Further, the TILA claim is not time-barred
because it plausibly asserts a continuing violation.
With respect to Counts III and IV, even if the overdraft fees were
refunded, the actual damages requirement for RESPA claims is met by
the Plaintiffs' damages for loss of the time-value of money, time
spent rectifying the error, and harm to their relationships with
their financial institutions, emotional distress, and credit
rating, all directly traceable to the Defendant's conduct.
Judge Adelman agrees with the Plaintiffs. With respect to the
statute of limitations issue, she finds that the Plaintiffs'
assertion that the violation is still ongoing is enough to survive
at this stage. While the Defendant's argument is compelling and
may ultimately prevail at summary judgment, she finds that further
factual development is necessary to resolve the issue given the
standard for timeliness-based dismissals at pleading.
Finally, the Judge is also satisfied that the Plaintiffs state
plausible allegations of actual damages with respect to Counts III
and IV. Even when refunded over a week after the fact, the
Plaintiffs still had to forego or delay other expenses to avoid
more overdrafts and further harm to their relationship with their
bank and credit rating. While more specificity will be required at
summary judgment, this is enough at this stage.
For these reasons, Judge Adelman denied the Defendant's partial
motion to dismiss. The Defendant's answer to the third amended
complaint is due within 14 days of the date of the Order.
A full-text copy of the Court's Feb. 9, 2021 Order is available at
https://tinyurl.com/3k4fjzru from Leagle.com.
NIKE INC: Settles ADA Class Action Lawsuit in California
--------------------------------------------------------
Ken Stone, writing for Times of San Diego, reports that Nike
customers cooled their heels on Feb. 6 while waiting in line
outside the iconic brand's store at Fashion Valley mall. Most
ignored a small sign posted in the window.
It was one of 10 mainly COVID-related mini-posters. But this was
meant for a special clientele.
Alongside a blue ear graphic, it read: "If you prefer to be
assisted by an employee who is wearing a clear face mask, or if you
need any other accommodation, please ask an employee for
assistance."
Carlsbad lawyer James Clapp was happy to learn the sign was posted.
It meant his lawsuit settlement with Nike had taken effect.
"The ear is the international sign for hearing access," Clapp said.
"People like myself who are deaf look for this symbol if we need an
accommodation, and I personally believe it is prominent enough that
a deaf person will instantly notice it."
Clapp was lead attorney in a major class action suit against the
sportswear and shoe giant brought on behalf of Cali Bunn, 22, a
former Cathedral Catholic volleyball star with profound hearing
loss.
On Jan. 28, Nike attorneys informed a San Francisco-based federal
court that they had agreed to a settlement Jan. 8 that would pay
Bunn's attorneys $85,000 -- just under half the costs they
incurred.
Nike would pay Bunn $5,000 as a "service award" due to the 15-20
hours she devoted to the litigation, "the reputational and
financial risk she undertook, and the substantial benefit her
efforts ultimately conferred to Nike's deaf and hard of hearing
customers in California."
In July, Tulane University student Bunn went to buy shoes at the
Nike store in Fashion Valley. But with her sales clerk wearing a
COVID-mandated mask, she wasn't able to read lips -- an "upsetting
experience" that caused "anguish."
Last September, she sued Nike to accommodate hearing impaired
people, citing state law and the federal Americans With
Disabilities Act.
After two months of "cordial" negotiations, Nike and Bunn reached a
deal with statewide effect -- and possible national consequence.
Every Nike retail store in California must provide
transparent-window face masks for employees as well as clean pens
and paper to "facilitate the exchange of notes with customers who
are deaf or hard of hearing and indicate they prefer to communicate
in writing."
Nike also agreed to post notices near entrances of its 38
California stores advising deaf or hard of hearing customers they
may ask for assistance.
Clapp said he and a co-counsel have worn, tested and approved the
masks.
"They are comfortable and they do the job in terms of allowing you
to see the wearer's mouth and facial expressions," he said.
Nike didn't respond to queries including whether its California
policy would be adopted nationwide. A Fashion Valley store manager
wouldn't allow photos of the new masks, instead directing questions
to Nike.
But Clapp said in a statement: "My client and I agree that face
masks are necessary to protect public health, but they also create
communication problems for the millions of people in the U.S. who
are deaf or hard of hearing.
"We appreciate Nike's proactive approach in dealing with this
important but overlooked problem. I hope that this settlement
causes other retailers to follow suit voluntarily. Accommodating
people with disabilities is not only legally required, but it shows
a commitment to good customer service."
One mask-maker agreed.
"Under Title III of the Americans with Disabilities Act …
entities such as businesses and nonprofit organizations are
required to provide effective accommodations upon request,
including auxiliary aids," said Allysa Dittmar, president and
co-founder of ClearMask, which makes a transparent face covering.
She wouldn't say whether Nike was a client, but Times of San Diego
was told that Nike is buying clear masks from one of its regular
manufacturers outside the United States.
"They are reusable/washable cloth masks, not disposable masks like
the one made by ClearMask," said a source who didn't want to be
identified.
Before settlement talks, Bunn's lawyers visited seven Nike retail
stores to confirm its policies were uniform throughout the state.
Now both sides await formal approval by a federal judge.
At 2 p.m. April 20, Judge Yvonne Gonzalez Rogers is expected to
sign off on the settlement at her Oakland courtroom.
It's taking that long because the deal has to be circulated to
state attorneys general across the country.
"Nike served the required notices on January 14, 2021, and will be
filing proof of compliance with this notice requirement. Thus, the
final approval order cannot be entered before April 13, 2021, to
comply with the CAFA notice requirement," Clapp told the court.
[GN]
ON2 TECHNOLOGIES: March 6 Settlement Opt-Out Deadline Set
---------------------------------------------------------
The following statement is being issued by Robbins Geller Rudman &
Dowd LLP regarding the On2 Technologies, Inc. Securities
Settlement:
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF queens: COMMERCIAL DIVISION
Index No. 21262/09
LAURA JIANNARAS, as Executrix of the Estate of MICHAEL JIANNARAS,
on
Behalf of Herself and All Others Similarly Situated,
Plaintiff,
vs.
MIKE ALFANT, et al.,
Defendants.
The Honorable
Marguerite A. Grays,
J.S.C.
SUMMARY NOTICE OF PENDENCY OF CLASS ACTION, PROPOSED SETTLEMENT AND
RIGHT TO OPT OUT AND TO OBJECT
TO: ALL PERSONS AND ENTITIES WHO HELD SHARES OF THE COMMON STOCK OF
ON2 TECHNOLOGIES, INC. ("On2"), EITHER OF RECORD OR BENEFICIALLY,
AT ANY TIME BETWEEN AUGUST 4, 2009 AND FEBRUARY 19, 2010, INCLUSIVE
(THE "SETTLEMENT CLASS")
YOU ARE HEREBY NOTIFIED that a proposed Settlement, whose terms are
embodied in a Stipulation, has been reached by Plaintiff, on behalf
of herself and the Settlement Class, with the Settling Defendants
in the above-captioned action. A Fairness Hearing will be held with
respect to the Settlement on April 6, 2021, at 10:00 A.M. before
the Honorable Marguerite A. Grays, J.S.C., in the Queens Supreme
Court Building, Courtroom 66, 88-11 Sutphin Boulevard, Jamaica, New
York 11435.
The action arose out of On2's merger with Google Inc., which On2's
stockholders approved on February 17, 2010. Plaintiff's action
claims, among other things, that On2's former directors breached
their fiduciary duties by conducting a flawed sale process,
negotiating an inadequate merger price and making misleading public
disclosures concerning the merger. Defendants have denied all
allegations in the action. The Settlement provides that, in
exchange for On2 having made certain supplemental disclosures
concerning the merger prior to the vote approving it, Plaintiff
will dismiss the action with prejudice and Plaintiff and the
Settlement Class will release Defendants and the Released Persons
from the Released Claims.
The purpose of the Fairness Hearing is to determine whether the
proposed Settlement and Stipulation, should be approved by the
Court as fair, reasonable and adequate and in the best interests of
the Settlement Class. This notice only summarizes the action, the
terms of the Settlement and Stipulation and the matters to be
addressed at the Fairness Hearing. A detailed notice, entitled
"Notice of Pendency of Class Action, Proposed Settlement, Fairness
Hearing and Right to Opt Out and to Object" (the "Class Notice"),
describes the action, the proposed Settlement and Stipulation, and
the rights of members of the Settlement Class to request to be
excluded from the Settlement Class and to object to the Settlement
and Stipulation and other matters to be considered at the Fairness
Hearing and/or appear at the Fairness Hearing. You may obtain a
copy of the Class Notice by visiting
www.on2shareholdersettlement.com, or by requesting that a copy be
sent to you by contacting the Notice Administrator by mail, email
or telephone as follows:
On2 Technologies Shareholder
Settlement Notice Administrator
c/o KCC Class Action Services
P.O. Box 43034
Providence, RI 02940-3034
On2shareholdersettlement@kccllc.com
(866)-700-0418
If you are a member of the Settlement Class, you have the right to
object to the Settlement and Stipulation, the final certification
of the Settlement Class, the entry of the Order and Final Judgment
(and the releases it contains) and/or the request by Plaintiffs'
Counsel for an award of attorneys' fees and expenses, or otherwise
request to be heard, by submitting no later than March 6, 2021, a
written objection and, if applicable, a notice of intention to
appear, in accordance with the procedures described in the Class
Notice. You also have the right to exclude yourself from the
Settlement Class by submitting no later than March 6, 2021, a
written request for exclusion from the Settlement Class in
accordance with the procedures described in the Class Notice. If
the Settlement is approved by the Court, you will be bound by the
Settlement, the Stipulation and the Court's Order and Final
Judgment (including the releases provided for therein) unless you
submit a request to be excluded.
PLEASE DO NOT CONTACT THE COURT OR THE CLERK'S OFFICE REGARDING
THIS NOTICE. Inquiries, other than requests for the Class Notice,
may be made to the Settlement Class Counsel:
Robert M. Rothman
ROBBINS GELLER RUDMAN & DOWD LLP
58 South Service Road, Suite 200
Melville, New York 11747
(800)-449-4900
Settlement Class Counsel
Dated: November 20, 2020
By Order of the Court
Supreme Court of the State of New York
County of Queens: Commercial Division [GN]
PATENAUDE & FELIX: Greenwald Awarded $36K in Attorney Fee in Reeves
-------------------------------------------------------------------
In the case, Dana Reeves, Plaintiff v. Patenaude & Felix, A.P.C.,
Defendant, Case No. 20-11034 (E.D. Mich.), Judge Judith E. Levy of
the U.S. District Court for the Easter District of Michigan,
Southern Division, granted the Plaintiff's unopposed motion for
approval of an award of attorney fees for Class Counsel, Greenwald
Davidson Radbil PLLC.
The Plaintiff's unopposed motion requests an attorney fee award of
$36,000, which the Class Counsel calculated by determining a
lodestar amount of $29,1301 and adding the remainder in fees,
expenses, and costs otherwise justified by the complexity,
sophistication, and results obtained in the case.
The Plaintiff argues that her counsel had, at the time of the
attorney fee motion filing, earned the "lodestar" amount of
$29,095, which the Plaintiff calculated by multiplying the Class
Counsel's alleged 65.7 hours of work on the case by the billing
rates of $450 and $400 per hour.
In addition to the lodestar fee amount, the Plaintiff also submits
that the Class Counsel has incurred $486.20 in litigation costs and
expenses to date, which include the complaint filing fee, service
fees, and PACER charges. She also notes that the Class Counsel
will incur an additional estimated $1,100 in litigation fees should
the Court require them to attend a fairness hearing in person.
Judge Levy concludes that the proper lodestar amount is $29,130.
James L. Davidson attests that he spent 57 hours working on the
case, that Mr. Johnson spent 8.7 hours working on the case, and
that their combined efforts and rates (($450 × 57 hours) + ($400
× 8.7 hours) = $25,650 + $3,480) amount to $29,095. By the
Judge's calculations, the correct result is actually slightly
higher, at $29,130. Multiplication error aside, she has reviewed
the declaration supporting the calculation and finds it accurately
supports a $29,130 lodestar.
Additionally, the difference between the requested amount of
$36,000 and the lodestar amount of $29,130 is $6,870, meaning that
the $36,000 award represents a 23.6% increase from the lodestar
fee. Given the Class Counsel's outstanding work on the case and
favorable result for the class, as well as their reasonable
anticipation of a future 20 to 30 hours of work--which would more
properly adjust the lodestar upward to somewhere between $38,095
and $42,595--Judge Levy finds that a $36,000 award is a "reasonable
attorney fee" within the meaning of 15 U.S.C. Section 1692k(a)(3).
Accordingly, the Plaintiff's unopposed motion for attorney fees is
granted.
A full-text copy of the Court's Feb. 5, 2021 Order is available at
https://tinyurl.com/1788sw4l from Leagle.com.
PHYSICIAN COMPASSIONATE: Court May Reject TCPA Class Settlement
---------------------------------------------------------------
Eric J. Troutman, Esq., of Squire Patton Boggs (US) LLP, in an
article for The National Law Review, reports that one of the most
unexpected parts about running tcpaworld.com -- at least to me --
is the large number of folks that visit the website to find
information about TCPA class action settlements.
I really did not intend to become a general information source of
the public on these settlement but, I guess that's what I am these
days. And as a result I am privy to a good amount of comment-some
of them a bit troubling -- from consumers who are genuinely
confused why they're getting so little money from these
settlements. (As always consumers who are class members and
concerned about the amount of their settlement checks should
contact the administrator or their counsel for more information --
the Czar is a powerful defense lawyer but does not oversee such
matters.)
This background probably serves to explain the Court's hesitance to
approve a class action settlement in Teblum v. Physician
Compassionate Care Llc, Case No.: 2:19-cv-403-FtM-38MRM, 2021 U.S.
Dist. LEXIS 22107 (M.D. Fl. January 20, 2021). There the Court
actually granted preliminary approval to a ~$750k class action
settlement but did so with a fairly unusual admonition to the
parties that they'd better be able to explain themselves on the
mere $18.00 bucks -- minus expenses -- that class members are
slated to receive. This is likely especially true since the
Plaintiff's lawyers (the Hiraldo brothers) will undoubtedly seek
(and receive) over $200k on this one.
The Court also noted that the case settlement (suspiciously?)
quickly and apparently with limited discovery having been done.
It all adds up -- in the Court's view -- to something that requires
more review before final approval can be awarded.
We'll keep an eye on this. [GN]
PLUM ORGANICS: Faces Class Action Over Baby Food Contaminants
-------------------------------------------------------------
Ariel Wittenberg, writing for E&E News, reports that a House report
finding that top baby food products contain heavy metals has
sparked panic among parents -- and a lawsuit. But experts want
parents to keep calm.
The House Oversight and Reform Subcommittee on Economic and
Consumer Policy's report reviewed testing by four baby food
companies and found that all four used ingredients containing high
levels of arsenic, mercury and lead -- heavy metals that can lead
to neurotoxic effects on kids.
The report particularly focused on the arsenic content of flavored
rice puffs, a favored quick snack for parents of older babies and
toddlers.
The report, which was covered in major mainstream news outlets,
stoked fear and rage in parents nationwide, with popular baby food
blogs and experts attempting to calm those concerns.
Parenting writer Emily Oster, an economist who has written two
books about raising kids, wrote that she had to send out the
newsletter early because "the emails were so panicked," following a
narrative of "OMG I have been poisoning my kid. I'm a terrible
parent."
But Oster, along with other parenting resources like Solid Starts,
which advises parents on how to safely introduce solid foods to
their babies, say there's little parents themselves can do about
the problem.
That's partly because heavy metals like arsenic are often naturally
occurring in raw materials like rice, leafy greens and sweet
potatoes. What's more, just four companies provided data to the
House subcommittee, and a lack of federal regulations about heavy
metals in food, generally, means there's no guarantee that
switching brands -- or switching to adult food -- would avoid
contaminated foods.
"From where I sit I would say at most -- at absolute most and I
want to be clear I don't see a lot of reason to do this -- I might
cut down on rice-based puffs and cakes," Oster concluded in her
newsletter. "All the people who wrote to ask if they have to make
their own baby food -- no. It's not clear this would help!"
Solid Starts founder Jenny Best posted similar advice on the
company's Instagram page: "FOOD IS BETTER THAN NO FOOD."
"If all you have is rice cereal, do what you need to do and don't
look back," she wrote.
Even if parents have few choices, that doesn't mean the House
report isn't cause for concern. Children, especially during their
first 1,000 days of life, are particularly vulnerable to heavy
metals like arsenic because their brains are rapidly developing,
and they eat more per unit of body weight compared with adults.
Public health experts have largely laid the blame at the feet of
the Food and Drug Administration, whose 100-parts-per-billion
standard for arsenic in baby rice cereal is the only limit on heavy
metals in food marketed to children.
But the House report has inspired a class-action lawsuit against
one brand of baby food -- Plum Organics -- which did not respond to
lawmakers' requests for data. But the company was included in a
report by Healthy Babies Bright Futures in 2019, which found many
of the same contaminants in Plum Organics' products.
The lawsuit alleges that the company engaged in misleading
marketing because Plum Organics markets its food as "made from the
best ingredients," among other things, while "failing to disclose
they contain or are at risk of containing any level of heavy metals
or other undesirable toxins or contaminants."
"Defendant's statements that the Contaminated Baby Foods are
healthy, nutritious, made from the best ingredients, and safe for
consumption are literally false and likely to deceive the public,
as is Defendant's failing to make any mention of Heavy Metals in
the Contaminated Baby Foods," the lawsuit concludes.
Campbell Soup Co., which owns Plum Organics, said in a statement
that the company "is confident in the safety and quality of our
products."
"The company does not comment on pending litigation, but we do
intend to defend this case vigorously," the company added. [GN]
PNS STORES: Wellons Appeals Ruling in Labor Suit to Ninth Circuit
-----------------------------------------------------------------
Plaintiffs S. WELLONS, et al., filed an appeal from a court ruling
entered in the lawsuit entitled S. Wellons, et al. v. PNS Stores,
Inc., et al., Case No. 3:18-cv-02913-TWR-DEB, in the U.S. District
Court for the Southern District of California, San Diego.
As previously reported in the Class Action Reporter, on Jan. 19,
2018, Plaintiff Wellons filed a putative class action in the San
Diego County Superior Court alleging wage and hour claims under
state law against BLSI, an Ohio corporation. Six days later,
Wellons filed a First Amended Complaint replacing BLSI with PNS, a
California corporation. PNS and BLSI are affiliated corporations
owned by Big Lots, Inc., an Ohio corporation. Both PNS and BLSI
operate stores under the name "Big Lots" in several states,
including California.
The Plaintiffs seek a review of the Court's Order dated February 1,
2021, granting the Defendants' motion for reconsideration.
The appellate case is captioned as S. Wellons, et al. v. PNS
Stores, Inc., et al., Case No. 21-80007, in the United States Court
of Appeals for the Ninth Circuit, February 11, 2021.[BN]
Plaintiffs-Petitioners S. WELLONS, C. ARREDONDO, S. DAVIS, T.
DEFOREEST, W. DUBA, S. HALL, G. KILGORE, N. LOPEZ, S. MEJIA, T.
SELTZER, S. SHARMA, J. SMITH, K. TOFT, C. TOLLIVER, M. VIRAMONTES,
M. WALTERS, L. WARNER, D. WILLIAMS, and J. WRIGHT, individually,
and on behalf of all others similarly situated, are represented
by:
David J. Gallo, Esq.
LAW OFFICES OF DAVID J. GALLO
12702 Via Cortina, Ste 500
Del Mar, CA 92014-3769
Telephone: (619) 509-3652
E-mail: djgsan@aol.com
Defendants-Respondents PNS STORES, INC., a California corporation;
and BIG LOTS STORES, INC., an Ohio Corporation, are represented
by:
Michael Jacob Ball, Esq.
Daniel J. Clark, Esq.
Mark A. Knueve, Esq.
VORYS, SATER, SEYMOUR AND PEASE LLP
52 East Gay Street
Columbus, OH 43215
Telephone: (614) 464-5625
E-mail: mjball@vorys.com
djclark@vorys.com
maknueve@vorys.com
RAYTHEON TECHNOLOGIES: Darnis Putative Class Action Ongoing
-----------------------------------------------------------
Raytheon Technologies Corporation said in its Form 10-K report
filed with the U.S. Securities and Exchange Commission on February
8, 2021, for the fiscal year ended December 31, 2020, that the
company continues to defend a purported class action suit entitled,
Geraud Darnis, et al. v. Raytheon Technologies Corporation, et al.
On August 12, 2020, several former employees of United Technologies
Corporation (UTC) or its subsidiaries filed a putative class action
complaint in the United States District Court for the District of
Connecticut against the Company, Otis, Carrier, the former members
of the UTC Board of Directors, and the members of the Carrier and
Otis Boards of Directors (Geraud Darnis, et al. v. Raytheon
Technologies Corporation, et al.).
The complaint challenges the method by which UTC equity awards were
converted to Company, Otis, and Carrier equity awards following the
separation of UTC into three independent, publicly-traded companies
on April 3, 2020.
The complaint claims that the defendants are liable for breach of
certain equity compensation plans and for breach of fiduciary duty,
and also asserts claims under certain provisions of the Employee
Retirement Income Security Act of 1974 (ERISA).
Raytheon said, "We believe that the Company has meritorious
defenses to these claims. At this time, the Company is unable to
predict the outcome, or the possible range of loss, if any, which
could result from this action."
Raytheon Technologies Corporation is a global premier systems
provider of high technology products and services to the aerospace
and defense industries. The company is based in Waltham,
Massachusetts.
RAYTHEON TECHNOLOGIES: Putative Securities Class Suit Underway
--------------------------------------------------------------
Raytheon Technologies Corporation said in its Form 10-K report
filed with the U.S. Securities and Exchange Commission on February
8, 2021, for the fiscal year ended December 31, 2020, that the
company is facing a putative securities class action lawsuit filed
in the United States District Court for the District of Arizona.
On October 8, 2020, the Company received a criminal subpoena from
the DOJ seeking information and documents in connection with an
investigation relating to financial accounting, internal controls
over financial reporting, and cost reporting regarding Raytheon
Company's Missiles & Defense business since 2009. The company is
cooperating fully with the DOJ's investigation. At this time, the
Company is unable to predict the outcome of the investigation.
Based on the information available to date, however, the company do
not believe the results of this inquiry will have a material
adverse effect on its financial condition, results of operations or
liquidity.
Four lawsuits were filed against the Company after the DOJ
investigation was first disclosed.
A putative securities class action lawsuit was filed in the United
States District Court for the District of Arizona against the
Company and certain of its executives alleging that the defendants
violated federal securities laws by making material misstatements
in regulatory filings regarding internal controls over financial
reporting in the Missiles & Defense business.
Three shareholder derivative lawsuits were filed in the United
States District Court for the District of Delaware against the
former Raytheon Company Board of Directors, the Company and certain
of its executives, each alleging that defendants violated federal
securities laws and breached their fiduciary duties by engaging in
improper accounting practices, failing to implement sufficient
internal financial and compliance controls, and making a series of
false and misleading statements in regulatory filings.
Raytheon said, "We believe that each of these lawsuits lacks
merit."
Raytheon Technologies Corporation is a global premier systems
provider of high technology products and services to the aerospace
and defense industries. The company is based in Waltham,
Massachusetts.
RBS CITIZENS: SCU & LISC as Cy Pres Beneficiaries in Sanders Okayed
-------------------------------------------------------------------
In the case, LINDA SANDERS, on behalf of herself and all others
similarly situated, Plaintiff v. RBS CITIZENS, N.A., Defendant,
Case No. 13-cv-03136-BAS-RBB (S.D. Cal.), Judge Cynthia Bashant of
the U.S. District Court for the Southern District of California
granted the parties' Joint Motion for Approval of Cy Pres
Beneficiaries of Residual Settlement Funds.
Plaintiff Sanders brought the action on behalf of a class under the
Telephone Consumer Protection Act ("TCPA") on Dec. 20, 2013. The
parties ultimately reached a settlement, which establishes in
relevant part that "any funds not paid out as the result of
uncashed settlement checks will be paid out as a cy pres award, to
a recipient agreed to by the parties and approved by the Court."
The agreement also states that on the final distribution date, or
210 days after the date which the last check for an award was
issued, the Claims Administrator will pay the remaining amount in
the Settlement Fund to one or more cy pres recipients. The Court
granted preliminary approval of the settlement on July 1, 2016, and
final approval on Jan. 27, 2017.
Now before the Court is the parties' Joint Motion designating cy
pres beneficiaries. The parties state that the claims
administrator has issued 40,661 settlement checks to facilitate
disbursement of the funds, of which 37,650 were cashed. The 3,011
remaining were not cashed within 180 days or have been voided,
leaving $164,065.89 remaining for cy pres distribution.
The parties have agreed to two cy pres beneficiaries, one chosen by
the Plaintiff's counsel and one chosen by the Defendant's counsel:
(1) the University of Santa Clara Law School's ("SCU") Privacy Law
Certificate and High Tech Law Institute; and (2) the Local
Initiatives Support Corp. ("LISC").
The TCPA was brought on behalf of a class claiming that the
Defendants made automated calls to their cell phones to collect
past due debts. Thus, the case touches on both privacy rights and
financial literacy.
The proposed cy pres fund recipients align with these interests.
The SCU Privacy Law Certificate and High Tech Law Institute provide
academic and extracurricular opportunities focused on helping
students develop expertise in the area of privacy law, and the cy
pres funds will help support the students, faculty, and staff in
this endeavor. LISC is a non-profit corporation in New York that
"provides grants, loans, and equity investments and technical
assistance to hundreds of organizations in urban and rural
communities throughout the country." The organization plans to use
cy pres funds "to provide employment and career services, financial
education, and credit re-building for low-income borrowers."
Judge Bashant finds that the work done by SCU is directly
responsive to the issues underlying the litigation. Similarly,
because the phone calls at issue in the matter were made in
furtherance of debt collection efforts, LISC's concentration on
developing financial stability also corresponds to the purpose of
the statute because improving financial literacy will benefit
settlement class members by reducing future debt collection calls.
Lastly, Judge Bashant finds that the interests of the silent class
members would be advanced by distributing cy pres funds to SCU and
LISC. The SCU's programs involve comprehensive training and
education of attorneys regarding the protection and enforcement of
privacy laws. The Judge therefore agrees that the funds will be
used, as the parties state, "to advance the privacy interests of
residential and cellular telephone subscribers" and "to promote and
preserve the privacy rights" of all class members and consumers at
large. LISC targets the underlying cause of the automated calls in
the case: the existence of overdue debt. By helping individuals
develop the skills necessary to keep current on their financial
obligations, LISC reduces the likelihood that class members and,
more broadly, any individuals will be on the receiving end of
automated debt collection calls.
Having considered the parties' Joint Motion and finding the
proposed cy pres beneficiaries appropriate, Judge Bashant granted
the Joint Motion. KCC Class Action Services, LLC, as the
settlement administrator, is ordered to promptly distribute the
remaining balance in the Cash Component of the Common Fund as a cy
pres distribution to the (1) University of Santa Clara Law School's
Privacy Law Certificate and High Tech Law Institute, and (2) Local
Initiatives Support Corp., which charitable organizations will
share equally in the cy pres distribution.
A full-text copy of the Court's Feb. 5, 2021 Order is available at
https://tinyurl.com/hhybbw5f from Leagle.com.
ROBINHOOD FINANCIAL: California Law Firms File Amended Complaint
----------------------------------------------------------------
Pessah Law Group, PC (PLG) and Chelin Law Firm, two of the first
California firms to institute a nationwide class action against
Robinhood, recently filed an amended complaint alleging ten
separate claims against the now infamous online brokerage.
The revised lawsuit takes aim at Robinhood's terms of service,
which some legal experts and scholars stated gave the online
brokerage broad latitude to disrupt user accounts and trading. But
lawyers representing the class disagree, and maintain that
Robinhood's terms are "unconscionable," and thus unenforceable.
"It seems as though Robinhood's customer agreement seeks to reserve
for the online broker the unfettered right to do as it pleases with
users' accounts and trading instructions. There can't be a contract
if one party is free to disregard its obligations without any
consequences," said Maurice Pessah, one of the attorneys
representing the Plaintiffs.
"The one thing Robinhood neither advertises nor draws any attention
to whatsoever are the unconscionable terms and conditions in the
Customer Agreement, or the illusory nature of any Robinhood
obligations thereunder," reads the complaint.
According to Stuart Chelin, another of the attorneys representing
the Plaintiffs, "the class action lawsuit is also based, in part,
on alleged breaches of Robinhood's duties to exercise reasonable
care in relation to the oversight and operation of its brokerage
business while high volume trading in volatile stocks balloons on
its platform."
The class action lawsuit also alleges that Robinhood owes its users
various fiduciary duties, something that Robinhood has denied in at
least one other recent 2020 class action lawsuit relating to
"trading outages." The amended lawsuit, however, includes
screenshots from Robinhood's website where fiduciary duty is
explained to potential users and where Robinhood invites people to
"sign up" and offers "free stock."
The lawsuit also takes note of the data that Robinhood sells to
Wall Street institutions and the lucrative "order flow" agreements
that Robinhood has with companies like Citadel, which bailed out
Melvin Capital after that company was hard-hit by massive bets on
short positions. Those same short bets backfired when legions of
Robinhood users began to buy shares of GameStop and other stocks,
which had been the topic of discussion on the popular Reddit page
r/WallStreetBets.
The firms involved also launched a new website designed to
facilitate onboarding of investors to the class action. "Let the
people trade," FOR REAL, is the site's tagline.
The new websites, www.rhclassaction.pessahgroup.com and
www.thepeoplevsrobinhood.com, allow users to determine if they have
a case and sign up to join the class action effort free of charge.
If you believe you have suffered losses due to Robinhood's actions,
or for other inquiries, please contact:
info@pessahgroup.com, or
stuart@chelinlaw.com.
http://pessahgroup.com[GN]
ROYAL BANK OF CANADA: Faces Investors' Suit Over Mutual Funds Fees
------------------------------------------------------------------
Clare O'Hara, writing for The Globe and Mail, reports that a
British Columbia judge has given the green light for a class-action
lawsuit against RBC, Canada's largest bank, alleging that investors
were overcharged for actively managed mutual funds that did little
more than mimic benchmark indexes. [GN]
SECOND ROUND: Final Approval of Class Action Settlement Sought
--------------------------------------------------------------
In the class action lawsuit captioned as LISA A. PRITCHARD, on
behalf of herself and those similarly situated, v. SECOND ROUND
SUB, LLC, SECOND ROUND, LP, LARRY VASBINDER AND JOHN DOES 1 TO 10,
Case No. 2:17-cv-06334-MAH (D.N.J.), the Plaintiff will move the
Court on April 1, 2021 to enter an order certifying the case to
proceed as a class action and granting Final Approval of Class
Action Settlement and for Attorney's Fees and Costs pursuant to the
Parties' Class Settlement Agreement.
The settlement was preliminarily approved by the Court on October
23, 2020. The Settlement provides a fair and reasonable recovery to
Settlement Class Members, who are comprised of:
"a defined group of New Jersey consumers from whom the
Defendants attempted to collect certain debts during the
relevant period."
The Settlement Agreement was finalized on January 31, 2020, made
effective as of January 22, 2020, and was reached only after
extensive arm's length settlement discussions and re-negotiations,
and provides reasonable benefits to Settlement Class Members,
currently estimated at approximately $55.22 for each of
approximately 833 individuals ($46,000 ÷ 833 = $55.22).
The terms of the Class Action Settlement Agreement:
-- The Defendants have agreed to provide monetary payments to
all Settlement Class Members who do not timely exclude
themselves from the Settlement, to also provide payment of
an incentive and service award to the Plaintiff, to also
cease collection of Plaintiff's alleged debt (including a
trade-line deletion), and to pay the costs of settlement
administration.
-- The parties later resolved and the Defendants agreed to
pay Class Counsel' reasonable attorney's fees and costs
up to $90,000.
The Plaintiff commenced the action on a class action basis against
the Defendants on August 22, 2017, on behalf of a proposed class of
similarly situated individuals, pursuant to the Fair Debt
Collection Practices Act (FDCPA). The Plaintiff alleged the
Defendants violated the FDCPA by misrepresenting tax consequences
of a reduced debt settlement amount. The Complaint alleged that the
Defendants violated the FDCPA by sending letters containing the
statement "Second Round Sub, LLC is required to file a form 1099C
with the Internal Revenue Service for any canceled debt of $600 or
more."
Second Round is a receivables management firm that serves
businesses of all types nationwide.
A copy of the Plaintiff's notice of motion for final approval of
class action settlement dated Feb. 5, 2020 is available from
PacerMonitor.com at http://bit.ly/2NaBHlvat no extra charge.[CC]
Attorneys for the Plaintiff and the Settlement Class, are:
Yongmoon Kim, Esq.
Jason R. D'Agnenica, Esq.
KIM LAW FIRM LLC
411 Hackensack Avenue, Suite 701
Hackensack NJ 07601
Telephone: (201) 273-7117
E-mail: ykim@kimlf.com
SIRIUS XM: Court Issues Final Order & Judgment in Alvarez Suit
--------------------------------------------------------------
Judge James V. Selna of the U.S. District Court for the Central
District of California entered Final Approval Order and Judgment in
the case, PHILIP ALVAREZ, RANDALL BETTISON, MARC KELLEHER, and
DARLENE VAUGH, individually and on behalf of all others similarly
situated; Plaintiffs, v. SIRIUS XM RADIO INC., Defendant, Case No.
2:18-cv-08605-JVS-SS (C.D. Cal.).
Judge Selna held a Final Approval Hearing on Feb. 8, 2021, at 1:30
p.m. Having considered all matters submitted to it at the Final
Approval Hearing and otherwise, and finding no just reason for
delay in entry of the Final Approval Order, he finds that the
Settlement is, in all respects, fair, reasonable and adequate to
the Settlement Class. Pursuant to, and in accordance with, Rule 23
of the Federal Rules of Civil Procedure, he fully and finally
approved the Settlement set forth in the Settlement Agreement in
all respects.
Pursuant to Rule 23 of the Federal Rules of Civil Procedure, the
Judge certified, solely for purposes of effectuating the
Settlement, the Action as a class action on behalf of a Settlement
Class defined as: "All Persons in the United States who purchased a
paid subscription from Sirius XM (or one of its predecessors) that
was marketed as a "lifetime plan" or "lifetime subscription."
Named Plaintiffs, Philip Alvarez, Randall Bettison, Marc Kelleher,
and Darlene Vaugh are appointed, for settlement purposes only, as
the representatives for the Settlement Class for purposes of Rule
23 of the Federal Rules of Civil Procedure.
Robert Ahdoot and Tina Wolfson of Ahdoot & Wolfson, PC, Keith S.
Dubanevich of Stoll Stoll Berne Lokting & Shlachter, PC, and
Cornelius P. Dukelow of Abington Cole & Ellery are appointed, for
settlement purposes only, as the counsel for the Settlement Class
pursuant to Rules 23(c)(1)(B) and (g) of the Federal Rules of Civil
Procedure.
The Action is dismissed with prejudice. The Parties will bear
their own costs and expenses, except as otherwise expressly
provided in the Settlement Agreement.
The persons listed on Exhibit 1 submitted timely and proper
Requests for Exclusion, are excluded from the Settlement Class, and
are not bound by the terms of the Settlement Agreement or the Final
Approval Order and Judgment.
The Class Counsel are awarded attorneys' fees in the amount of
$3,470,984.63, and reimbursement of expenses in the amount of
$29,015.37, and such amounts will be paid by Sirius XM pursuant to
and consistent with the terms of the Settlement.
The Named Plaintiffs are each awarded a Service Payments as
follows: $1,500 to Marc Kelleher, $1,875 to Philip Alvarez, Randall
Bettison, and Darlene Vaugh; and such amounts will be paid by
Sirius XM pursuant to and consistent with the terms of the
Settlement Agreement. A payment to Paul Wright in the amount of
$3,000, pursuant to the Settlement Agreement, is also approved and
will be paid by Sirius XM pursuant to and consistent with the terms
of the Settlement Agreement.
By incorporating the Settlement Agreement's terms, Judge Donato
determines that the Final Approval Order and Judgment complies in
all respects with Federal Rules of Civil Procedure 65(d)(1). There
is no just reason to delay the entry of the Final Approval Order
and Judgment and immediate entry by the Clerk of the Court is
expressly directed.
A full-text copy of the Court's Feb. 9, 2021 Final Approval Order &
Judgment is available at https://tinyurl.com/hz7nan4a from
Leagle.com.
SOUTHWEST AIRLINES: Bid to Junk Texas Securities Suit Pending
-------------------------------------------------------------
Southwest Airlines Co. said in its Form 10-K report filed with the
U.S. Securities and Exchange Commission on February 8, 2021, for
the fiscal year ended December 31, 2020, that the motion seeking to
dismiss the putative class action suit before the United States
District Court for the Northern District of Texas in Dallas remains
pending.
On February 19, 2020, a complaint alleging violations of federal
securities laws and seeking certification as a class action was
filed against the Company and certain of its officers in the United
States District Court for the Northern District of Texas in Dallas.
A lead plaintiff has been appointed in the case, and an amended
complaint was filed on July 2, 2020.
The amended complaint seeks damages on behalf of a putative class
of persons who purchased the Company's common stock between
February 7, 2017, and January 29, 2020.
The amended complaint asserts claims under Sections 10(b) and 20 of
the Securities Exchange Act and alleges that the Company made
material misstatements to investors regarding the Company's safety
and maintenance practices and its compliance with federal
regulations and requirements.
The amended complaint generally seeks money damages, pre-judgment
and post-judgment interest, and attorneys'fees and other costs. On
August 17, 2020, the Company and the individual defendants filed a
motion to dismiss. On October 1, 2020, the lead plaintiff filed a
response in opposition to the motion to dismiss.
The Company filed a reply on or about October 21, 2020, such that
the motion is now fully briefed. The Company denies all allegations
of wrongdoing, including those in the amended complaint.
The Company believes the plaintiffs' positions are without merit
and intends to vigorously defend itself.
No further updates were provided in the Company's SEC report.
Southwest Airlines Co. operates a passenger airline that provides
scheduled air transportation services in the United States and
near-international markets. Southwest Airlines Co. was founded in
1967 and is based in Dallas, Texas.
SOUTHWEST AIRLINES: Discovery Ongoing in Boeing MAX Defect Suit
---------------------------------------------------------------
Southwest Airlines Co. said in its Form 10-K report filed with the
U.S. Securities and Exchange Commission on February 8, 2021, for
the fiscal year ended December 31, 2020, that discovery is ongoing
in the class action suit related to the company's concealment of
defects in the Boeing MAX aircraft.
On July 11, 2019, a complaint alleging violations of federal and
state laws and seeking certification as a class action was filed
against Boeing and the Company in the United States District Court
for the Eastern District of Texas in Sherman.
The complaint alleges that Boeing and the Company colluded to
conceal defects with the MAX aircraft in violation of the Racketeer
Influenced and Corrupt Organization Act ("RICO") and also asserts
related state law claims based upon the same alleged facts.
The complaint seeks damages on behalf of putative classes of
customers who purchased tickets for air travel from either the
Company or American Airlines between August 29, 2017, and March 13,
2019.
The complaint generally seeks money damages, equitable monetary
relief, injunctive relief, declaratory relief, and attorneys' fees
and other costs.
On September 13, 2019, the Company filed a motion to dismiss the
complaint and to strike certain class allegations. Boeing also
moved to dismiss. On February 14, 2020, the trial court issued a
ruling that granted in part and denied in part the motions to
dismiss the complaint.
The trial court order, among other things: (i) dismissed without
prejudice various state law claims that the plaintiffs abandoned in
response to the motions, (ii) dismissed with prejudice the
remaining state law claims, including fraud by concealment, fraud
by misrepresentation, and negligent misrepresentation on the
grounds that federal law preempts those claims, and (iii) found
that plaintiffs lack Article III standing to pursue one of the
plaintiffs' theories of RICO injury.
The order denied the motion to dismiss with respect to two RICO
claims premised upon a second theory of RICO injury and denied the
motion to strike the class allegations at the pleadings stage.
Discovery is ongoing, and class certification briefing is currently
underway.
The Company denies all allegations of wrongdoing, including those
in the complaint that were not dismissed, and intends to vigorously
oppose certification of any class. The Company believes the
plaintiffs' positions are without merit and intends to vigorously
defend itself.
No further updates were provided in the Company's SEC report.
Southwest Airlines Co. operates a passenger airline that provides
scheduled air transportation services in the United States and
near-international markets. Southwest Airlines Co. was founded in
1967 and is based in Dallas, Texas.
SOUTHWEST AIRLINES: OK of Settlement in Class Suit Under Appeal
---------------------------------------------------------------
Southwest Airlines Co. said in its Form 10-K report filed with the
U.S. Securities and Exchange Commission on February 8, 2021, for
the fiscal year ended December 31, 2020, that the appeal from a
lower court decision approving the settlement of the
airfare-related class suit remains pending even as objectors to the
settlement have opted to drop the appeal.
On July 1, 2015, a complaint was filed in the United States
District Court for the Southern District of New York on behalf of
putative classes of consumers alleging collusion among the Company,
American Airlines, Delta Air Lines, and United Airlines to limit
capacity and maintain higher fares in violation of Section 1 of the
Sherman Act.
Since then, a number of similar class action complaints were filed
in the United States District Courts for the Central District of
California, the Northern District of California, the District of
Columbia, the Middle District of Florida, the Southern District of
Florida, the Northern District of Georgia, the Northern District of
Illinois, the Southern District of Indiana, the Eastern District of
Louisiana, the District of Minnesota, the District of New Jersey,
the Eastern District of New York, the Southern District of New
York, the Middle District of North Carolina, the District of
Oklahoma, the Eastern District of Pennsylvania, the Northern
District of Texas, the District of Vermont, and the Eastern
District of Wisconsin.
On October 13, 2015, the Judicial Panel on Multi-District
Litigation centralized the cases to the United States District
Court in the District of Columbia. On March 25, 2016, the
plaintiffs filed a Consolidated Amended Complaint in the
consolidated cases alleging that the defendants conspired to
restrict capacity from 2009 to present.
The plaintiffs seek to bring their claims on behalf of a class of
persons who purchased tickets for domestic airline travel on the
defendants' airlines from July 1, 2011 to present.
They seek treble damages, injunctive relief, and attorneys' fees
and expenses.
On May 11, 2016, the defendants moved to dismiss the Consolidated
Amended Complaint, and on October 28, 2016, the Court denied this
motion. On December 20, 2017, the Company reached an agreement to
settle these cases with a proposed class of all persons who
purchased domestic airline transportation services from July 1,
2011, to the date of the settlement.
The Company agreed to pay $15 million and to provide certain
cooperation with the plaintiffs as set forth in the settlement
agreement. After notice was provided to the settlement class, the
Court held a fairness hearing on March 22, 2019, and it issued an
order granting final approval of the settlement on May 9, 2019.
On June 10, 2019, three objectors filed notices of appeal to the
United States Court of Appeals for the District of Columbia
Circuit.
Two sets of the objectors dismissed their appeals, and the appeal
of the remaining objectors is pending. The case is continuing as to
the remaining defendants.
The Company denies all allegations of wrongdoing.
No further updates were provided in the Company's SEC report.
Southwest Airlines Co. operates a passenger airline that provides
scheduled air transportation services in the United States and
near-international markets. Southwest Airlines Co. was founded in
1967 and is based in Dallas, Texas.
SPECTRUM BRANDS: Approval of Settlement in Securities Suit Denied
-----------------------------------------------------------------
In the case, IN RE SPECTRUM BRANDS LITIGATION, Case Nos.
19-cv-178-jdp, 19-cv-347-jdp (W.D. Wis.), Judge Jamas D. Peterson
of the U.S. District Court for the Western District of Wisconsin
has entered his Opinion and Order:
a. denying without prejudice (i) the parties' motion for
approval of the proposed settlement, (ii) the Plaintiffs'
motion for attorney fees and expenses, and (iii) the motion
to intervene filed by Jet; and
b. denying as moot the Plaintiffs' motion to strike.
The Plaintiffs in these consolidated cases contend that Defendants
Spectrum Brands Legacy, Inc., Spectrum Brands Holdings, Inc., HRG
Group, Inc., and some of their officers violated the Securities
Exchange Act of 1934 by misrepresenting the value of their stock.
Before July 2018, Spectrum Holdings and HRG were separate
companies. HRG was a holding company that owned a majority of
Spectrum Holdings' stock. In July 2018, HRG acquired all of
Spectrum Holdings' stock, making Spectrum Holdings a wholly owned
subsidiary of HRG. As a result of the merger, Spectrum Holdings
changed its name to Spectrum Legacy, and HRG changed its name to
Spectrum Holdings.
The Plaintiffs' amended complaint is 135 pages long, but the gist
of their allegations is that Old Spectrum, New Spectrum, and their
officers falsely represented that a consolidation of two facilities
was a success when in fact it adversely affected the company's
financial performance, destroyed major customer relationships, and
wrecked management credibility. They also sought to hold HRG
liable under 15 U.S.C. Section 78t as an entity that controlled the
other defendants as a result of its status as a majority
stockholder.
The Plaintiffs' amended complaint identifies three groups that are
members of the class: (1) those who purchased Old Spectrum stock
between January 2017 and July 2018; (2) those who purchased HRG
stock between January 2017 and July 2018; and (3) those who
purchased New Spectrum stock between July 2018 and November 2018.
Jet is a member of group (2), but not the other two groups.
The parties have moved for approval of a proposed $39 million
settlement, but the Court has received a substantial objection, and
a motion to intervene, from class members Jet Capital Master Fund
LP, Jet Capital SRM Master Fund LP, and Walleye Investments Fund
(collectively "Jet").
Jet's objection is both procedural and substantive. First, it says
that: (1) the notice the Plaintiffs provided at the beginning of
the lawsuit was defective because it didn't mention that purchasers
of HRG stock would be included in the lawsuit; and (2) the Lead
Plaintiffs aren't adequate representatives of the class members who
purchased HRG stock. Second, it says that the parties' plan of
allocation is unreasonable because it imposes an arbitrary, 75%
discount on the claims of HRG stock purchasers. Jet asks the Court
to remedy these problems by either removing the discount from the
plan of allocation or appointing Jet as liaison Plaintiff to
attempt to renegotiate the settlement on behalf of the HRG class
members.
Judge Peterson agrees with Jet that the Plaintiffs didn't provide
adequate notice to HRG stock purchasers. Section 78u-4(a)(3)(A)(i)
requires the plaintiffs to identify "the claims asserted" in the
published notice, so plaintiffs should have published an amended
notice when they filed the amended complaint to add more claims. A
primary purpose of publication is to alert larger shareholders of
their opportunity to serve as a lead plaintiff. By failing to
publish an amended notice, the Plaintiffs deprived HRG stock
purchasers such as Jet of that opportunity.
The Judge also agrees with Jet that the current Lead Plaintiffs
aren't adequate representatives of HRG stock purchasers. By the
Plaintiffs' own assertion, those purchasers aren't similarly
situated to purchasers of Old and New Spectrum stock. In fact, the
Defendants moved to dismiss the claims of the HRG stock purchasers
on this ground, but the parties agreed to settle the case before
the court ruled on the motion. The Lead Plaintiffs' lopsided
portfolios support Jet's contention that the Lead Plaintiffs would
have had little incentive during negotiations to get the best
settlement for purchasers of HRG stock.
This leaves the question of how to remedy the Plaintiffs'
procedural missteps. Jet wants the Court to either: (1) grant
Jet's motion to intervene and direct the parties to restart
settlement negotiations with Jet as the representative for the HRG
stock purchasers; or (2) eliminate the discount for claims of HRG
stock purchasers.
But Judge Peterson holds that neither of those remedies match up
with the problems that Jet itself has identified. As for Jet's
motion to intervene, that request is premature. Jet would not have
been entitled to simply step in and declare itself the best choice.
Jet may well be the class member that is "the most capable of
adequately representing the interests of" HRG stock purchasers.
The Judge cannot remedy one violation of the law with another
violation. It would also be inappropriate for the Court to simply
eliminate the discount. Eliminating the discount would give Jet
and other HRG purchasers a windfall at the expense of other class
members.
The Judge sees two potential resolutions, neither of which may be
fully satisfactory to the parties or Jet. The first possibility is
the one described: Allow the Plaintiffs to publish a new notice
that includes the claims of the HRG class members, and then the
Court will choose an additional lead plaintiff for those members in
accordance with Section 78u-4(a)(3)(B)(i). The second possibility
is to exclude the claims of the HRG stock purchasers from the class
and allow them to file a separate lawsuit if they wish. If those
class members are removed, the problems related to the adequacy of
both the notice and the Lead Plaintiffs' representation are
resolved.
It is the Plaintiffs' lawsuit, so Judge Peterson will leave it to
them to decide which option they want to pursue. Either way, he
will require renegotiating the settlement, so he will deny without
prejudice the motions for final approval of the settlement and for
fees. The Judge will also deny Jet's motion to intervene. If Jet
is to become a party, it will be through the process sanctioned by
the PSLRA.
Along with their choice of how they wish to proceed, the Plaintiffs
should submit: (1) a memorandum identifying the steps they believe
are necessary to resolve the case; and (2) a proposed schedule.
The parties are encouraged to work together and submit a joint
proposal, but if they are unable to agree, the Court will give the
Defendants an opportunity to object and submit a competing
proposal.
In light of the foregoing, Judge Peterson denied without prejudice
(i) the parties' motion for approval of the proposed settlement,
(ii) the Plaintiffs' motion for attorney fees and expenses, and
(iii) the motion to intervene filed by Jet. He denied as moot the
Plaintiffs' motion to strike.
The Plaintiffs are directed to promptly notify the class of the
Order by including a copy of it on the settlement website. They
may have until Feb. 19, 2021, to: (1) inform the court whether they
wish to publish an amended notice or dismiss the claims of class
members who purchased HRG stock; and (2) submit a memorandum and
proposed schedule, as discussed in the Opinion. If the Defendants
have any objections to the Plaintiffs' proposed schedule, they may
have until Feb. 26, 2021, to raise those objections and file their
own proposed schedule.
A full-text copy of the Court's Feb. 5, 2021 Opinion & Order is
available at https://tinyurl.com/33pc532o from Leagle.com.
ST. JOHN'S CATHOLIC: Faces Sexual Abuse Class Action Lawsuit
------------------------------------------------------------
Barb Sweet, writing for Journal Pioneer, reports that the legal
entity of the Roman Catholic Archdiocese of St. John's has been
named in a proposed class-action lawsuit involving alleged sexual
abuse at schools in Vancouver where Christian Brothers taught
decades ago.
The notice of civil claim was to be filed in the Supreme Court of
British Columbia on Feb. 8 and the local archdiocese has not had
legal notification yet, according to the lawyer Joe Fiorante who
hopes to get the class action certified in B.C.
"The abuse at Vancouver College and St. Thomas More continued a
pattern of systemic child abuse at institutions run by the
Christian Brothers in Canada (CBIC) first revealed at the Mount
Cashel Orphanage in Newfoundland in the mid-to-late 1970s," alleges
the notice of claim. (Early police investigations in Newfoundland
and Labrador were covered up at the time.)
"Following incidents of abuse, the CBIC did not act to protect the
children in their care, but to protect their abusers from criminal
charges by moving them out of Newfoundland to teach at schools
owned and operated by the CBIC, including Vancouver College and St.
Thomas More. The transfers were carried out with the knowledge and
approval of the Archbishop of St. John's."
Darren Liptrot is the representative abuse claimant against the
Vancouver College Ltd., St. Thomas More Collegiate Ltd., Edward
English, Gerald Gabriel McHugh, John Kavalec, The Roman Catholic
Episcopal Corp. of St. John's, Roman Catholic Archbishop of
Vancouver and The Catholic Independent Schools of Vancouver
Archdiocese.
Fiorante told The Telegram on Feb. 8 the recent Supreme Court of
Canada ruling -- that refused to hear a Catholic Church appeal of
the Surpeme Court of Newfoundland and Labrador decision that found
it vicariously liable for the sexual abuse of boys at Mount Cashel
in the 1940s, '50s and '60s -- had a role in the decision to name
the archdiocese of St. John's in the Vancouver action.
"It did, it assists us in understanding the degree of control they
had over events at Mount Cashel," Fiorante said in a video
interview. "And it certainly helps us understand their role and
does provide a basis for the claim that Mr. Liptrot is advancing
here in Vancouver."
Liptrot, who said he has not been involved in any criminal case
against English, spoke in the interview of his ordeal, which
started with grooming by English after Liptrot confided troubles at
home. His claims of abuse are not proven in court.
Liptrot attended Vancouver College from 1980-85 for grades 8-12.
The Telegram asked Liptrot if life for him would have been
different had English never got transferred to Vancouver from Mount
Cashel.
"Yes," the recovering addict who once dreamed of being a lawyer,
said emphatically.
"For sure. I would definitely have gone on to university."
St. John's lawyer Geoff Budden, who is not involved in the
Vancouver case, but led the 20-year legal battle that was finally
won in January, said his case for John Doe plaintiffs was "a
template or a road map if you are looking to hold an archdiocese
responsible for a religious order."
"This is what you need to establish," Budden said.
"There is a roadmap from that case and some of the other cases that
have proceeded to trial," Fiorante said.
"But basically the allegation is that the archbishop of Vancouver
has the power over all activities within the diocese, all
ministerial, educational, all activities and that includes
oversight of Catholic Schools in Vancouver."
The legal action claims over period 1976-83, the CBIC moved certain
child abusers from Mount Cashel to Vancouver College and St. Thomas
More where they had unfettered access to children, abused children
and/or failed to protect children from their fellow Christian
Brothers.
As a plaintiff, Liptrot represents a!l students who attended
Vancouver College School and St. Thomas More between 1976-95 who
claim that they were physically and/or sexually abused by one or
more Christian Brothers.
In specific reference to the archbishop of St. John's, the proposed
Vancouver class action alleges it failed to take reasonable
measures to protect the plaintiff and class members from abuse by
Christian Brothers, in particular; the archbishop (of the day)
prioritized the protection of the reputation of the Catholic Church
over the need to protect children from further abuse by the
Christian Brothers; the archbishop approved of, facilitated and/or
ratified the transfer of English out of Newfoundland to a teaching
position at a CBIC school in Vancouver when it knew English had
abused boys at Mount Cashel and posed a real and continuing danger
to students, including the plaintiff and class members; the
archbishop failed to revoke or take steps to revoke English's
certification to teach in Catholic schools; and the archbishop
failed to warn the archbishop of Vancouver of the real and
continuing danger which English posed to students, including the
plaintiff and class members. [GN]
STARBUCKS CORP: Faces Class Action Over Frap Real Vanilla Claims
----------------------------------------------------------------
Law360 reports that a Rhode Island man has filed a proposed class
action against Starbucks claiming it misled customers by falsely
billing its iced Frappuccino drink as containing real vanilla, when
in fact the drink has vanilla flavoring. [GN]
SWAGAT RESTAURANT: Aurora Dismissed From Naik Without Prejudice
---------------------------------------------------------------
In the case, KISHORE NAIK, et al., Plaintiffs v. SWAGAT RESTAURANT,
INC., et al., Defendants, Case No. 19-CV-5025 (JMF) (S.D.N.Y.),
Judge Jesse M. Furman of the U.S. District Court for the Southern
District of New York dismissed without prejudice all claims against
Defendant Satis Chandra Aurora, also known as Satish Arora,
pursuant to Rule 41(a)(2) of the Federal Rules of Civil Procedure.
Judge Furman finds the terms of the dismissal to be proper. He
denied as moot Counsel Tracy A. Armstrong's motion to withdraw as
counsel for Mr. Aurora.
The parties will file their revised settlement papers seeking
preliminary approval of a proposed class action settlement no later
than Feb. 19, 2021.
The Clerk of Court is directed to terminate ECF No. 84 and to
terminate Mr. Aurora as a party.
A full-text copy of the Court's Feb. 5, 2021 Order is available at
https://tinyurl.com/jw02y76r from Leagle.com.
TAYLOR FARMS: Settles Labor Class Action Lawsuit for $5.3 Million
-----------------------------------------------------------------
Kathleen Dailey, writing for Bloomberg Law, reports that Taylor
Farms and more than 4,000 employees in California reached a $5.3
million settlement to resolve a state-wide class action alleging
various state wage and breaks violations, and are now asking a
federal judge in Sacramento to grant final approval of the deal.
The class members would divvy up about $3.05 million under the
proposed deal, with individual payouts made based on the amount of
pay periods worked during the relevant period. The average payout
is about $745, and the highest is more than $7,100.
Class counsel requested roughly $1.85 million, or 35% of the total
amount, in attorneys' fees, plus about $250,000 in costs.
If approved, the settlement would resolve claims brought in 2013 by
five employees who worked at a Taylor Farms facility in Tracy,
Calif., on behalf of other similarly situated workers.
The employees alleged Taylor Farms violated the California Labor
Code by failing to pay them for time spent performing necessary pre
and post-shift work duties, like donning and doffing protective
gear, and ensure they received uninterrupted meal and rest breaks.
The proposed deal also provides $7,500 service awards for each of
the five named plaintiffs, $23,000 for claims administration costs,
and $75,000 in penalties under California's Private Attorneys
General Act.
The proposal received preliminary approval in November 2020. Since
then, no class member has objected to the deal's terms, and only 20
individuals have opted out, according to the motion submitted Feb.
5 to Judge Kimberly J. Mueller of the U.S. District Court for the
Eastern District of California.
The employees are represented by Wilson Turner Kosmo LLP, Parris
Law Firm, Downey Law Firm, and Chandler Law. Taylor Farms is
represented by Gibson Dunn and Crutcher LLP.
The case is Pena v. Taylor Farms Pacific, Inc., E.D. Cal., No.
2:13-cv-01282, 2/5/21. [GN]
TESLA INC: 9th Cir. Affirms Dismissal of Stockholder Class Suit
---------------------------------------------------------------
Tesla Inc. said in its Form 10-K report filed with the U.S.
Securities and Exchange Commission on February 8, 2021, for the
fiscal year ended December 31, 2020, that the Ninth Circuit
affirmed the District Court's dismissal of the stockholder claims.
On October 10, 2017, a purported stockholder class action was filed
in the U.S. District Court for the Northern District of California
against Tesla, two of its current officers, and a former officer.
The complaint alleges violations of federal securities laws and
seeks unspecified compensatory damages and other relief on behalf
of a purported class of purchasers of Tesla securities from May 4,
2016 to October 6, 2017.
The lawsuit claims that Tesla supposedly made materially false and
misleading statements regarding Tesla's preparedness to produce
Model 3 vehicles.
Plaintiffs filed an amended complaint on March 23, 2018, and
defendants filed a motion to dismiss on May 25, 2018. The court
granted defendants' motion to dismiss with leave to amend.
Plaintiffs filed their amended complaint on September 28, 2018, and
defendants filed a motion to dismiss the amended complaint on
February 15, 2019.
The hearing on the motion to dismiss was held on March 22, 2019,
and on March 25, 2019, the Court ruled in favor of defendants and
dismissed the complaint with prejudice.
On April 8, 2019, plaintiffs filed a notice of appeal and on July
17, 2019 filed their opening brief. The company filed their
opposition on September 16, 2019. A hearing on the appeal before
the U.S. Court of Appeals for the Ninth Circuit was held on April
30, 2020.
On January 26, 2021, the Ninth Circuit affirmed the District
Court's dismissal of the stockholder claims.
Tesla said, "We continue to believe that the claims are without
merit and intend to defend against this lawsuit vigorously. We are
unable to estimate the possible loss or range of loss, if any,
associated with this lawsuit."
On October 26, 2018, in a similar action, a purported stockholder
class action was filed in the Superior Court of California in Santa
Clara County against Tesla, Elon Musk, and seven initial purchasers
in an offering of debt securities by Tesla in August 2017.
The complaint alleges misrepresentations made by Tesla regarding
the number of Model 3 vehicles Tesla expected to produce by the end
of 2017 in connection with such offering and seeks unspecified
compensatory damages and other relief on behalf of a purported
class of purchasers of Tesla securities in such offering.
Tesla thereafter removed the case to federal court. On January 22,
2019, plaintiff abandoned its effort to proceed in state court,
instead filing an amended complaint against Tesla, Elon Musk and
seven initial purchasers in the debt offering before the same judge
in the U.S. District Court for the Northern District of California
who is hearing the earlier filed federal case.
On February 5, 2019, the Court stayed this new case pending a
ruling on the motion to dismiss the complaint in such earlier filed
federal case. After such earlier filed federal case was dismissed,
defendants filed a motion on July 2, 2019 to dismiss this case as
well.
This case is now stayed pending a ruling from the Ninth Circuit on
the earlier filed federal case with an agreement that if defendants
prevail on appeal in such case, this case will be dismissed.
Tesla said, "We believe that the claims are without merit and
intend to defend against this lawsuit vigorously. We are unable to
estimate the possible loss or range of loss, if any, associated
with this lawsuit."
Tesla Inc. designs, manufactures, and sells high-performance
electric vehicles and electric vehicle powertrain components. The
Company owns its sales and service network and sells electric
powertrain components to other automobile manufacturers. Tesla
serves customers worldwide. The company is based in Palo Alto,
California.
TESLA INC: Trial in Class Suit Over Musk Tweet Set for May 2022
----------------------------------------------------------------
Tesla Inc. said in its Form 10-K report filed with the U.S.
Securities and Exchange Commission on February 8, 2021, for the
fiscal year ended December 31, 2020, that the trial in the
consolidated purported stockholder class action suit related to
Elon Musk's August 7, 2018 Twitter post that he was considering
taking Tesla private, is set for May 2022.
Between August 10, 2018 and September 6, 2018, nine purported
stockholder class actions were filed against Tesla and Elon Musk in
connection with Musk's August 7, 2018 Twitter post that he was
considering taking Tesla private.
All of the suits are now pending in the U.S. District Court for the
Northern District of California. Although the complaints vary in
certain respects, they each purport to assert claims for violations
of federal securities laws related to Mr. Musk's statement and seek
unspecified compensatory damages and other relief on behalf of a
purported class of purchasers of Tesla's securities.
Plaintiffs filed their consolidated complaint on January 16, 2019
and added as defendants the members of Tesla's board of directors.
The now-consolidated purported stockholder class action was stayed
while the issue of selection of lead counsel was briefed and argued
before the Ninth Circuit.
The Ninth Circuit ruled regarding lead counsel. Defendants filed a
motion to dismiss the complaint on November 22, 2019.
The hearing on the motion was held on March 6, 2020. On April 15,
2020, the Court denied defendants' motion to dismiss. The parties
stipulated to certification of a class of stockholders, which the
court granted on November 25, 2020. Trial is set for May 2022.
Tesla said, "We believe that the claims have no merit and intend to
defend against them vigorously. We are unable to estimate the
potential loss, or range of loss, associated with these claims."
Tesla Inc. designs, manufactures, and sells high-performance
electric vehicles and electric vehicle powertrain components. The
Company owns its sales and service network and sells electric
powertrain components to other automobile manufacturers. Tesla
serves customers worldwide. The company is based in Palo Alto,
California.
TUPELO, MS: Edwards May File Renewed Class Status Bid by March 29
-----------------------------------------------------------------
In the class action lawsuit captioned as VINCENT EDWARDS,
Individually, and on behalf of all others similarly situated, v.
THE CITY OF TUPELO, MISSISSIPPI, et al., Case No.
1:17-cv-00131-DMB-DAS (N.D. Miss.), the Hon. Judge Debra M. Brown
entered an order denying without prejudice the second supplemental
motion.
In its order, the Court adopted the Ninth Circuit's approach to
considering evidence in class certification proceedings. Because
the parties did not have the benefit of this standard at the time
the briefing on the second supplemental motion for class
certification was completed, and because Edwards' briefing violates
this Court's Local Rules in certain respects, the second
supplemental is denied without prejudice.
However, on or before March 29, 2021, Edwards may file a renewed
motion for class certification which complies with all applicable
Local Rules. The City may respond, and Edwards may reply,
accordingly.
On May 1, 2020, Vincent Edwards filed a second supplemental motion
to certify a proposed class action against the City of Tupelo,
Mississippi; Lee County, Mississippi; Ramierre Warren; and certain
fictitious defendants.
On June 1, 2020, the City filed a motion to strike paragraphs 8 and
9 of the supplemental declaration. On August 21, 2020, this Court
denied the City's motion to strike.
Tupelo is a city in northeast Mississippi. It's known as the
birthplace of Elvis Presley, who is commemorated with numerous
statues. Buffalo Park and Zoo is home to bison, zebras and
giraffes. Tupelo National Battlefield was the site of a Civil War
battle.
A copy of the Court's order dated Feb. 5, 2020 is available from
PacerMonitor.com at http://bit.ly/2Zhjllpat no extra charge.[CC]
TYSON FOODS: RM Law Reminds Investors of April 5 Deadline
---------------------------------------------------------
RM LAW, P.C. on Feb. 8 disclosed that a class action lawsuit has
been filed on behalf of all persons or entities that purchased
Tyson Foods, Inc. ("Tyson" or the "Company") (NYSE:TSN) securities
during the period from March 13, 2020 through December 15, 2020,
inclusive (the "Class Period").
Tyson shareholders may, no later than April 5, 2021, move the Court
for appointment as a lead plaintiff of the Class. If you purchased
shares of Tyson and would like to learn more about these claims or
if you wish to discuss these matters and have any questions
concerning this announcement or your rights, contact Richard A.
Maniskas, Esquire toll-free at (844) 291-9299.
According to the Complaint, the Company made false and misleading
statements to the market. Tyson knew that coronavirus was both
highly contagious and spreading around the world. The Company
failed to implement appropriate safety protocols for its employees.
Based on this failure, the Company's employees spread coronavirus
throughout its facilities. The Company's production was thereby
hampered, including complete shutdowns at some facilities, causing
financial harm. 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 Tyson,
investors suffered damages.
If you are a member of the class, you may, no later than April 5,
2021, request that the Court appoint you as lead plaintiff of the
class. A lead plaintiff is a representative party that acts on
behalf of other class members in directing the litigation. In order
to be appointed lead plaintiff, the Court must determine that the
class member's claim is typical of the claims of other class
members, and that the class member will adequately represent the
class. Under certain circumstances, one or more class members may
together serve as "lead plaintiff." Your ability to share in any
recovery is not, however, affected by the decision whether or not
to serve as a lead plaintiff. You may retain RM LAW, P.C. or other
counsel of your choice, to serve as your counsel in this action.
For more information regarding this, please contact RM LAW, P.C.
(Richard A. Maniskas, Esquire) toll-free at (844) 291-9299 or by
email at rm@maniskas.com. For more information about class action
cases in general or to learn more about RM LAW, P.C. please visit
our website.
RM LAW, P.C. is a national shareholder litigation firm. RM LAW,
P.C. is devoted to protecting the interests of individual and
institutional investors in shareholder actions in state and federal
courts nationwide.
CONTACT:
RM LAW, P.C.
Richard A. Maniskas, Esquire
1055 Westlakes Dr., Ste. 300
Berwyn, PA 19312
484-324-6800
844-291-9299
rm@maniskas.com
http://www.rmclasslaw.com[GN]
UNIVERSITY OF CALIFORNIA: July 12 Settlement Fairness Hearing Set
-----------------------------------------------------------------
A proposed class action Settlement may affect you if you were a
woman seen for treatment by Dr. James Heaps ("Dr. Heaps") at
University of California Los Angeles ("UCLA") medical facilities
during varying periods of time between January 1, 1983 and June 28,
2018. The lawsuit pending in the United States District Court for
the Central District of California is A.B. et al. v. Regents of the
University of California et al., Case No. 2:20-cv-09555-RGK-E
("lawsuit").
What is the Lawsuit About? The women who brought the lawsuit
("Plaintiffs") allege that Dr. Heaps assaulted, abused, and engaged
in harassing and offensive behavior towards female patients while
he was an obstetrician and gynecologist at UCLA medical facilities
and that Regents of the University of California ("Regents") failed
to respond appropriately. Dr. Heaps and Regents ("Defendants") deny
Plaintiffs' allegations. The Court has not decided who is right.
Who Is Affected? You are a "Class Member" if you are a woman who
was seen for treatment by Dr. Heaps at (1) UCLA's student health
center (now Arthur Ashe Student Health and Wellness Center) from
January 1, 1983 to June 30, 2010; (2) UCLA Medical Center (now
Ronald Reagan UCLA Medical Center) from January 1, 1986 to June 28,
2018; or (3) Dr. Heaps's medical offices at 100 UCLA Medical Plaza
from February 1, 2014 to June 28, 2018.
What Can You Get from the Settlement? The $73 million Settlement
Fund will be used to pay Settlement Class Member claims and any
Class Representative service awards approved by the Court. In
addition to monetary benefits, Regents will make institutional
changes at UCLA. The Settlement Fund will not be reduced to pay
attorneys' fees and costs or Administrative Expenses.
How Do You Get a Payment? Settlement Class Members who are
pre-identified and receive a Settlement Notice packet with a
Claimant ID and women who submit a qualifying Statement of Class
Membership will receive a Tier 1 Settlement payment of $2,500.
Settlement Class Members also have the option to submit a Tier 2
and Tier 3 Claim Form. Depending on the information provided and
whether claimants are willing to be interviewed, claimants could be
awarded up to $250,000 (or more in exceptional circumstances). The
Statement of Class Membership and Tier 2 and Tier 3 Claim Form are
available on the Settlement Website at www.UCLAHeapsSettlement.com
or may be requested by phone toll-free at 1-888-921-0726. All Claim
Forms must be received online through the Settlement Website or
postmarked by mail no later than June 7, 2021.
What Are Your Options? Class Members who don't want Settlement
payment(s) and don't want to be legally bound by the Settlement,
must exclude themselves by May 6, 2021. Class Members who do not
request exclusion may object to the Settlement by May 6, 2021. The
detailed Settlement Notice provides detailed information regarding
how to request exclusion or object. The Court will hold a Fairness
Hearing on July 12, 2021 at 9:00 a.m., Pacific, to consider whether
the Settlement is fair, reasonable, and adequate. Class Members may
ask the Court to appear at the Fairness Hearing but don't have to
do so.
How Can You Get More Information? This Notice is a summary.
Detailed Settlement information is available at
www.UCLAHeapsSettlement.com. You may also contact the Settlement
Administrator by phone toll-free at 1-888-921-0726 or by mail at
UCLA Heaps Settlement, c/o JND Legal Administration, P.O. Box
91386, Seattle, WA 98111. [GN]
VELOCITY FINANCIAL: Court Dismisses Securities Class Action Suit
----------------------------------------------------------------
Hugh Dolisca, Esq., Frances Floriano Goins, Esq., and Amanda
Martinsek, Esq., of Ulmer & Berne LLP, in an article for JDSupra,
report that despite a general decline in filings of securities
class action litigation in 2020, the economic fallout from the
coronavirus pandemic has led to an uptick of securities fraud cases
alleging failure to disclose risks of the pandemic to the investing
public. Since spring of 2020, plaintiffs' attorneys have filed
close to 30 COVID-19 related securities class action lawsuits. On
January 25, 2021, a California federal district court issued the
first decision granting a motion to dismiss such a complaint in
Berg v. Velocity Financial, Inc., No. 20 Civ. 6780, 2021 WL 268250
(C.D. Cal. Jan. 25, 2021). The result in Berg is fact-specific;
thus, while the court's holding provides some guidance, the
decision does not exonerate all companies facing securities fraud
allegations related to misrepresentations about the impact the
pandemic has had on their business operations. The key is whether
the risks were known by the defendants but not spelled out to
investors.
In Berg, the plaintiff asserted claims under Sections 11 and 15 of
the Securities Act of 1933 that Velocity made false and misleading
statements to investors ahead of the company's January 2020 IPO
regarding Velocity's underwriting standards, rising portfolio of
non-performing loans, and ability to capitalize on the real estate
market. Additionally, the complaint alleged that Velocity failed to
disclose the potential impact of the coronavirus pandemic on
Velocity's business and operations, despite the fact that the
international spread of the novel coronavirus had already been
confirmed at the time of the IPO.
In the order dismissing the complaint, the court held that
Velocity's statements concerning its underwriting standards and
non-performing loan portfolio were neither false nor misleading.
The court also held that Velocity could not have known about the
coronavirus risks at the time of its IPO, and thus could not have
included a specific disclosure about the pandemic's impact on its
business operations. The court, however, did note that Velocity
disclosed that its business might be affected by changes in
national, regional, or local economic conditions or specific
industry segments caused by acts of God. The opinion thus provides
some basic guidance to future plaintiffs as to the necessary
allegations for claims based on failure to disclose pandemic
risks.
A more recent coronavirus-related securities class action lawsuit
filed February 2, 2021, against Tyson Foods, Inc. asserts
securities fraud claims under the Securities Exchange Act, Sections
10(b) and 20(a), and Rule 10b-5. The plaintiff alleges that Tyson
knowingly made false and/or misleading statements in its Form 8-K,
10-Q, and 10-K filings, all of which caused Tyson's stock price to
be artificially inflated. Mingxue Guo v. Tyson Foods Inc. et al.,
1:21-cv-00552, No. 1 (E.D.N.Y. Feb 2, 2021). These claims are more
fully developed than the almost-cursory pandemic-related claim in
Berg.
The contrast between the allegations against Tyson and those
against Velocity are telling. The critical distinctions relate to
what the companies knew about the pandemic and when they knew it. A
company that is alleged to have known about the risks that the
pandemic would pose to its business operations and future prospects
in early 2020 may find comfort in the Berg decision, whereas a
company like Tyson that is alleged to have made false statements
about the impact of the virus on its business operations after the
events of spring 2020 and throughout the year cannot rely upon the
Berg dismissal.
As long as the coronavirus pandemic continues to affect the economy
and companies' business operations and financial results, we can
expect that plaintiffs' attorneys will continue to file cases and
refine their liability theories against companies in industries
impacted by the coronavirus. As such, companies must carefully
examine the contents of their public statements to take into
account the potential impact of the pandemic on their respective
businesses. [GN]
VIRTUSA CORP: Austin HoldCo Merger Related Suits Underway
---------------------------------------------------------
Virtusa Corporation said in its Form 10-Q Report filed with the
Securities and Exchange Commission on February 9, 2021, for the
quarterly period ended December 31, 2020, that the company
continues to defend multiple putative class action suits related to
its merger with Austin HoldCo Inc.
On September 9, 2020, the Company entered into an Agreement and
Plan of Merger, with Austin HoldCo Inc., an entity wholly-owned by
funds affiliated with Baring Private Equity Asia, and Austin BidCo
Inc., a wholly-owned subsidiary of Parent, with respect to the
acquisition of the Company by Parent for $51.35 in cash for each
share of Virtusa common stock.
Since the announcement of the merger, putative class actions have
been filed in the United States District Court for the District of
Delaware in connection with the proposed merger against us and the
members of our board of directors.
The lawsuits allege that the preliminary proxy statement violates
Section 14(a) and Section 20(a) of the Exchange Act of 1934 by
materially omitting material information related to the Company's
projections and the explanation of the analysis of the Company's
financial advisor, among other claims. Among other remedies, the
plaintiffs in these lawsuits seek to enjoin the merger.
Virtusa said, "This and other potential legal proceedings could
delay or prevent the merger from becoming effective."
Virtusa Corporation is a global provider of digital business
strategy, digital engineering and information technology services
and solutions that help clients change, disrupt, and unlock new
value through innovation engineering. The company is based in
Southborough, Massachusetts.
WELLS FARGO: May 10 Extension to File Class Status Bid Sought
-------------------------------------------------------------
In the class action lawsuit captioned as CAUDLEY SIMON, on behalf
of himself, all others similarly situated, v. WELLS FARGO BANK,
NATIONAL ASSOCIATION, a National Banking Association; and Does 1
through 100, inclusive, Case No. cv-00211-JAK-AS (C.D. Calif.), the
Plaintiff asks the Court to enter an order granting her ex parte
application for continuance of class certification briefing and
hearing as follows:
Event Current Date Proposed Date
Last day to file motion Feb. 15, 2021 May 10, 2021
for Class Certification:
Last day to file any April 12, 2021 July 9, 2021
opposition to Motion
for Class Certification:
Last day to file any April 26, 2021 August 5, 2021
reply to opposition:
Hearing on Motion for May 17, 2021 August 30, 2021
Class Certification:
The Defendant will not be prejudiced by the granting of this ex
parte application. Thus, the Court should continue the deadline for
filing the motion for class certification to May 10, 2021, the
Plaintiff says.
Wells Fargo is an American multinational financial services company
with corporate headquarters in San Francisco, California,
operational headquarters in Manhattan, and managerial offices
throughout the United States and overseas.
A copy of the Plaintiff's motion dated Feb. 5, 2020 is available
from PacerMonitor.com at https://bit.ly/37d5dOA at no extra
charge.[CC]
The Plaintiff is represented by:
Shaun Setareh, Esq.
Thomas Segal, Esq.
Farrah Grant, Esq.
SETAREH LAW GROUP
9665 Wilshire Blvd. Suite 430
Beverly Hills, CA 90212
Telephone (310) 888-7771
Facsimile (310) 888-0109
E-mail: shaun@setarehlaw.com
thomas@setarehlaw.com
farrah@setarehlaw.com
WELLS FARGO: Settles Wage-and-Hour Class Action for $2 Million
--------------------------------------------------------------
Law360 reports that Wells Fargo agreed to pay $2 million to settle
a class action over allegations that it did not provide its home
mortgage consultants and private mortgage bankers with rest,
vacation, or overtime pay in violation of state law, according to a
filing in Washington federal court. [GN]
ZACHARY HOLDINGS: Disputes Over Scheduling Order in Blackmon Solved
-------------------------------------------------------------------
In the case, JAMES R. BLACKMON, JUSTIN M. ROZELLE, ERIC A. MYERS,
JARED MUNSON, Plaintiffs v. ZACHARY HOLDINGS, INC., CHIEF EXECUTIVE
OFFICER OF ZACHARY HOLDINGS, INC., THE COMPENSATION AND BENEFITS
COMMITTEE OF ZACHARY HOLDINGS, INC., JOHN DOES 1-10, WHOSE NAMES
ARE CURRENTLY UNKNOWN; Defendants, Case No. SA-20-CV-00988-DAE
(W.D. Tex.), Judge Elizabeth S. Chestney of the U.S. District Court
for the Western District of Texas, San Antonio Division, issued an
order resolving the parties' disagreements regarding the entry of a
Scheduling Order in the case.
Judge Chestney held a telephonic conference, at which all parties
appeared through the counsel, to address the scheduling issues.
The case is complex class action brought under the Employee
Retirement Income Security Act implicating thousands of potential
class members over a six-year period. There is a motion to dismiss
pending. The Plaintiffs proposed that phased discovery begin
immediately, and the Defendants asked the Court to stay discovery
pending a ruling on their motion to dismiss.
After considering the arguments of the counsel and the procedural
posture of the case, Judge Chestney ordered that the parties
exchange initial disclosures as required under Rule 26 and engage
in the agreed Phase I discovery discussed during the conference.
If the motion to dismiss is still pending after 90 days, the
parties are instructed to file an advisory with the Court as to
whether they have reached agreements as to additional discovery
that can be conducted or whether another scheduling conference is
necessary to address the next phase of the case. If the motion to
dismiss is denied in whole or in part within the 90-day period, the
parties are ordered to confer and file proposed scheduling
recommendations to control the remainder of the case.
A full-text copy of the Court's Feb. 5, 2021 Order is available at
https://tinyurl.com/3qm3frqt from Leagle.com.
ZAGG INC: Facing Zephyr Parent Merger Related Suits
---------------------------------------------------
ZAGG Inc said in its Form 8-K filing with the U.S. Securities and
Exchange Commission filed on February 9, 2021, that the company is
facing multiple suits including class action suits, related to its
merger with Zephyr Parent, Inc.
On December 10, 2020, ZAGG, Inc entered into a Merger Agreement by
and among Zephyr Parent, Inc., a Delaware corporation, and Zephyr
Merger Sub, Inc., a Delaware corporation and wholly-owned
subsidiary of Parent.
On or about January 21, 2021, the company commenced mailing to its
stockholders a proxy statement dated January 21, 2021 relating to
the special meeting of stockholders of ZAGG scheduled to be hosted
on the internet through a live webcast at
www.virtualshareholdermeeting.com/ZAGG2021SM, at 9:00 a.m. Mountain
Standard Time (MST) on February 18, 2021.
Since the initial public announcement of the Merger on December 11,
2020, nine lawsuits, including two class action lawsuits, have been
filed by purported ZAGG stockholders in connection with the Merger.
Two lawsuits filed in the United States District Court for the
District of Delaware are captioned Stein v. ZAGG Inc, et al., Case
1:21-cv-00019 (filed January 8, 2021) and Garcia v. ZAGG Inc, et
al., Case 1:21-cv-00028 (filed January 12, 2021); five lawsuits
filed in the United States District Court for the Southern District
of New York are captioned Nikoughadem v. ZAGG Inc, et al., Case
1:21-cv-00358 (filed January 14, 2021), Hui v. ZAGG Inc, et al.,
Case 1:21-cv-00580 (filed January 22, 2021), Strickland v. ZAGG
Inc, et al., Case 1:21-cv-00631 (filed January 25, 2021 and
voluntarily dismissed February 4, 2021), Elder v. ZAGG Inc, et al.
Case 1:21-cv-00672 (filed January 26, 2021) and Wilhelm v. ZAGG
Inc, et al., Case 1:21-cv-00723 (filed January 26, 2021); and two
lawsuits filed in the United States District Court for the District
of New Jersey are captioned Rosa v. ZAGG Inc, et al., Case
1:21-cv-01415 (filed January 29, 2021) and Wurst v. ZAGG Inc, et
al., Case 2:21-cv-00954 (filed January 21, 2021.
The complaints assert, among other things, that the Proxy Statement
filed by ZAGG in connection with the Merger contained alleged
material misstatements and/or omissions in violation of federal
law. ZAGG believes that the claims asserted in the Merger
Litigation are without merit and that no supplemental disclosure is
required under applicable law.
However, in order to avoid the risk of the Merger Litigation
delaying or adversely affecting the Merger and to minimize the
costs, risks and uncertainties inherent in litigation, and without
admitting any liability or wrongdoing, ZAGG has determined to
voluntarily supplement the Proxy Statement and will be filing
supplemental proxy materials relating to the Proxy Statement.
A copy of the supplemental disclosure is available at
https://bit.ly/3psDqQx.
ZAGG Inc is a publicly-traded company based in Midvale, Utah. It is
best known for its line of protective coverings for consumer
electronics and hand-held devices under the brand name
InvisibleShield.
[*] Bank Settles ATM Fee Class Action Lawsuit for $5.2 Million
--------------------------------------------------------------
Buckley Firm on Feb. 8 disclosed that on February 3, consolidated
class members filed an unopposed motion for preliminary approval of
a settlement agreement in the U.S. District Court for the Southern
District of Ohio to resolve allegations that a national bank
breached its account agreement by assessing balance inquiry fees in
certain circumstances. Class members, comprised of current and
former account holders, claimed that the bank assessed fees if
account holders used an ATM outside of the bank's network (non-bank
ATM) to check their balances. The class also alleged that the bank
assessed multiple fees if a balance inquiry was undertaken "during
the same ATM visit as a cash withdrawal or other funds transfer."
As a result of the action, the bank modified its account
disclosures to "better inform its customers that they could be
charged a fee for a balance inquiry" at a non-bank ATM. The
preliminary settlement seeks to certify class members who were
assessed the contested fees from January 1, 2010 through October
31, 2018 and will not require class members to file claims to
receive the settlement's benefits. Under the preliminary settlement
terms, the bank will pay $5.2 million into a common fund, and has
agreed to analyze its historical transaction data to identify
settlement class members and automatically credit settlement
proceeds into their accounts via direct deposit. [GN]
[*] Meme Stocks Trading Restriction Prompts Class Actions
---------------------------------------------------------
Law360 reports that brokerage firms, clearing houses, market makers
and hedge funds are facing dozens of putative class actions across
the country after some brokers restricted trading of so-called meme
stocks popular with retail investors on the WallStreetBets Reddit
forum and other similar message boards. [GN]
[*] Report Says Securities Class Action Filings Down 22% in 2020
----------------------------------------------------------------
Alexander "Sasha" Aganin, of Cornerstone Research, in an article
for The National Law Review, reports that declines in state court
filings and filings related to M&A contributed to a 22% decrease in
the number of securities class actions filed in 2020. Plaintiffs
filed complaints against fewer than 400 issuers for the first time
since 2016, according to a report released on Feb. 8 by Cornerstone
Research and the Stanford Law School Securities Class Action
Clearinghouse. The total dollars at risk in the 2020 cohort,
measured by Maximum Dollar Loss and Disclosure Dollar Loss, was,
however, comparable to 2019 exposure levels.
The report, Securities Class Action Filings -- 2020 Year in Review,
found that plaintiffs filed 334 new securities class action cases
in federal and state courts in 2020, compared to a record 427
filings in 2019. There were 234 core filings -- those excluding M&A
activity -- down 12% from 2019 levels. Federal M&A filings fell 38%
from the previous year.
The number of state court filings alleging claims under the
Securities Act of 1933 fell sharply, possibly due to the Delaware
Supreme Court's March 2020 decision in Salzberg v. Sciabacucchi.
Despite the smaller number of companies sued, market capitalization
losses were comparable to the elevated levels seen over the past
three years. There were 30 filings with a Maximum Dollar Loss of at
least $10 billion in 2020, more than twice the historical average.
The number of state court filings alleging claims under the
Securities Act of 1933 fell sharply, possibly due to the Delaware
Supreme Court's March 2020 decision in Salzberg v. Sciabacucchi
upholding the validity of federal forum-selection provisions in
corporate charters.
"This decline contrasts sharply with the substantial increase in
state 1933 Act securities filings in the last few years, which
reached a historic high in 2019," said Alexander "Sasha" Aganin, a
report coauthor and Cornerstone Research senior vice president. "In
the last six months, four trial courts in California have enforced
these federal forum-selection provisions; no trial court has ruled
that they are unenforceable. In the future, other courts will
likely consider this issue."
Two trends that may persist emerged during the year. Plaintiffs
filed 19 complaints relating to COVID-19. These complaints included
allegations that companies negatively impacted by the virus failed
adequately to disclose the virus's adverse effects on their
financials, and that misleading statements were made about products
produced or in development by the issuer.
The year also witnessed an explosion in special purpose acquisition
company (SPAC) activity. More than half of all IPOs in 2020
involved SPACs, with over $75.3 billion raised across 248 SPAC IPOs
in the United States. Five SPAC-related complaints were filed in
2020.
"There is every reason to believe that plaintiffs will be carefully
examining the SPAC market, and no one should be surprised if 2021
witnesses a sharp uptick in claims against SPAC issuers," said
Professor Joseph A. Grundfest, director of the Stanford Law School
Securities Class Action Clearinghouse, and a former Commissioner of
the Securities and Exchange Commission. "I also expect a continued
decline in state-based litigation of 1933 Act claims as courts
continue to embrace federal forum provisions."
Key Trends
The percentage of U.S. exchange-listed companies subject to
securities class action filings fell for the first time in eight
years, from nearly 9% in 2019 to 6.3% in 2020 but remained well
above historical averages.
Disclosure Dollar Loss: This measure of litigation activity
decreased by 13% to $245 billion in 2020. DDL is the dollar value
change in the defendant firm's market capitalization between the
trading day immediately preceding the end of the class period and
the trading day immediately following the end of the class period.
Maximum Dollar Loss: This measure of litigation activity rose by
33% to nearly $1.6 trillion, driven by several mega filings with
MDL of at least $10 billion. MDL is the dollar value change in the
defendant firm's market capitalization from the trading day with
the highest market capitalization during the class period to the
trading day immediately following the end of the class period.
Among S&P 500 companies, 4.4% were targeted in a core federal
filing in 2020, the lowest percentage since 2015.
There were 31 core federal filings against Asia-based firms, the
highest since a spike in Chinese reverse merger filings in 2011.
The 79 core federal filings in the Ninth Circuit marked the highest
number on record, while the 77 core federal filings in the Second
Circuit fell from their record high in 2019 but were still the
third highest on record. [GN]
*********
S U B S C R I P T I O N I N F O R M A T I O N
Class Action Reporter is a daily newsletter, co-published by
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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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