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C L A S S A C T I O N R E P O R T E R
Monday, March 22, 2021, Vol. 23, No. 52
Headlines
ABSOPURE WATER: Michigan Court Denies Bid to Dismiss Guy Suit
AETNA LIFE: Hendricks, et al. Seek to Certify ERISA Class
AFTRA RETIREMENT: New York Court Consolidates Gilbert & A.A. Suits
ALABAMA: Court Poses 3 Evaluations Questions in Hunter v. Boswell
ALLIANZ GLOBAL: Court Grants Bid to File Under Seal in Luxottica
ALLSTATE FIRE & CASUALTY: Auciello Files Suit in N.D. Ohio
ALTERNATIVE IRA: Sanchez Files ADA Suit in S.D. New York
AMAZON.COM INC: Monopolizes Ebook Market, Cook Suit Asserts
AMERICAN GENERAL: Buck Appeals Class Cert. Bid Denial to 3rd Cir.
AMMONITA INC: Tenzer-Fuchs Files ADA Suit in E.D. New York
AMN SERVICES: California Supreme Court Flips Judgment in Donohue
ANAPTYSBIO INC: Continues to Defend Etokimab-Related Suit
ANZIE BLUE: McCay Seeks to Certify FLSA Suit as Collective Action
AURORA, CO: Individual Officers' Joint Bid to Stay in Minter Denied
AUSTIN RARE: Sanchez Files ADA Suit in S.D. New York
BARGREEN-ELLINGSON INC: Sanchez Files ADA Suit in S.D. New York
BENIHANA INC: Court Extends Class Status Bid Filing to March 2022
BETTERMENT LLC: Sanchez Files ADA Suit in S.D. New York
BITPAY INC: Sanchez Files ADA Suit in S.D. New York
BLACKROCK INC: Settlement Reached in Employee 401(k) Plan Suit
CHARTER COMMUNICATIONS: Renewed Bid to Certify Class Due April 5
CLEARVIEW AI: S. Drury Named Interim Lead Counsel in Consumer Suit
CO-DIAGNOSTICS INC: Gelt & Hernandez Consolidated; Gelt Named Lead
COLONY INSURANCE: Court Dismisses Skillets Suit With Prejudice
COLONY INSURANCE: Skillets Appeals Case Dismissal Ruling to 4th Cir
CORECIVIC INC: Seeks 9th Cir. Review of Class Cert. Ruling in Owino
COVINGTON SPECIALTY: MSPA CLAIMS Seeks Rule 23 Class Certification
DCP MIDSTREAM: Whitman Seeks to Certify Day Rate Inspector Class
DELAWARE NORTH: Morand-Doxzon Appeals Remand Bid Denial to 9th Cir.
DENNY'S INC: Bids for Judgment and to Dismiss Wintjen Suit Denied
DENTSU MCGARRY: Dharni Files Suit in Cal. Super. Ct.
DRUG ABUSE FOUNDATION: Plowden Seeks to Certify Therapist Class
EBIX INC: Bid to Be Named Lead Plaintiffs in Teifke Due April 23
ELAVON INC: Court Junks Bid to Dismiss Fabricant Class Suit
ENCORE CAPITAL: Class Status Bid Filing Due August 30
EXECUPHARM INC: Clemens Lacks Standing to Bring Claims, Court Says
EXPERIAN INFORMATION: Can Compel Arbitration in Coulter FCRA Suit
FACEBOOK INC: April 8 Extension to File Class Status Bid Okayed
FAIRVIEW HEALTH: Dolan Files Class Suit in Minnesota
FLORISSANT, MO: Court Grants in Part Baker's Bid to Reconsider
FOREMOST GLATT: Denial of Kensington's Bid to Toss Robinson Flipped
FROEDTERT HEALTH: FLSA & Rule 23 Class Certification Sought
FRONT PORCH: Raines Appeals Case Dismissal Ruling to 9th Circuit
G4S SECURE: Kovacs Files Bid for Conditional Certification
GENERAL MOTORS: Carr Suit Transferred to E.D. Michigan
GENERAL REVENUE: Bostic Suit Removed to N.D. Alabama
GEORGIA: 11th Cir. Affirms Summary Judgment for DOC in Martinez
GERBER CHILDRENSWEAR: Sanchez Files ADA Suit in S.D. New York
GOETZE'S CANDY: Williams Files ADA Suit in S.D. New York
GREGORY'S COFFEE: Denial of Bid to Dismiss in Griffin Suit Affirmed
H&R BLOCK: Swanson Appeals Arbitration Bid Ruling to 8th Circuit
HANOVER INSURANCE: Fink Appeals Order in Insurance Suit to 9th Cir.
HAWTHORNE FOOD: Williams Files ADA Suit in S.D. New York
HELIX NUTRITION: Williams Files ADA Suit in S.D. New York
HIGHLINE CONSTRUCTION: Arellano Files FLSA Suit in S.D. New York
HOME DEPOT: Flores Suit Removed to S.D. California
HOSPITAL SERVICE: Appeals Court Affirms Summary Judgment in Leet
ICONSOFBOXING.COM: Williams Files ADA Suit in S.D. New York
ILLINOIS: Bid for Summary Judgment in Wallace Suit v. DOC Granted
INTERACTIVE BROKERS: Extension to File Class Status Bid Sought
IRVINGTON SUPERIOR: Assoc. Seeks Pay for Time Spent on COVID Tests
JEFFERSON CAPITAL: Mermelstein Files FDCPA Suit in S.D. Florida
JOHN CHRISTNER: 10th Cir. Appeal Filed in Huddleston FLSA Suit
JUAN BARCENAS: Tremols Files FLSA Suit in W.D. Arkansas
KBR INC: SSI Request for Suspension of Award Enforceability OK'd
KPC HEALTHCARE: Gamino Must File Class Status Bid by May 19
LA FUENTE INC: Nevada Sup. Court Flips Summary Judgment in Dancer
LAKEVIEW LOAN: March 30 Filing Date for Class Certification Sought
LIBERTY HOMECARE: Headly Seeks to Certify Class of Service Workers
LIVE NATION: Court Grants Bid to Compel Arbitration in Tezak Suit
MIDLAND CREDIT: Amansec Seeks to Certify New Jersey Consumer Class
MONDELEZ INT'L: McMorrow Renewed Bid for Class Certification OK'd
MORPHE LLC: Brooks ADA Suit Seeks Rule 23 Class Certification
MOUNT OLIVE: Sanchez Files ADA Suit in S.D. New York
NATIONWIDE COIN: Sanchez Files ADA Suit in S.D. New York
NEW YORK CITY: IEPs Students Settlement Class Gets Certification
NEW YORK: Cole Files Bid for Class Action Certification
NEW YORK: Jacque-Crews Files Bid for Class Action Status
NEW YORK: Middlebrooks Files Bid for Class Action Certification
NEW YORK: Napper Files Bid for Class Action Certification
NEW YORK: Still Files Bid for Class Action Status
NEXT TECHNOLOGIES: Sanchez Files ADA Suit in S.D. New York
NISSAN NORTH: Hays' Defective Car Suit Wins Class Certification
NO TAX 4 NASH: Elrod TCPA Suit Seeks to Certify Class
O.G. ELIADES: Final Judgment in Allen MWA Suit Affirmed in Part
ORIGINAL INC: Martinez Files ADA Suit in E.D. New York
PERRY'S RESTAURANTS: Helgason Suit Seeks to Send FLSA Class Notice
PEZ CANDY: Williams Files ADA Suit in S.D. New York
PHILLIPS 66: Schweitzer Files Certiorari Petition in ERISA Suit
PLENTYOFFISH MEDIA: Sanchez Files ADA Suit in S.D. New York
PORT PIZZA: $48.5K Class Settlement in Gee FLSA Suit Has Approval
PUBLIC PARTNERSHIPS: Talarico Seeks to Certify FLSA Class
PURELY ELIZABETH: Sanchez Files ADA Suit in S.D. New York
QUAD/GRAPHICS INC: Securities Fraud Suit Filed by Born Dismissed
ROCKY MOUNTAIN: Williams Files ADA Suit in S.D. New York
RONNOCO COFFEE: Sanchez Files ADA Suit in S.D. New York
ROYAL CUP: Sanchez Files ADA Suit in S.D. New York
SAFECO INSURANCE: Garth Files Suit in N.D. Ohio
SEPHORA USA: Bid to Stay & to Dismiss Femmer Suit Granted in Part
SID GAUTREAUX: Belton Asks Court to Reconsider Dismissal of Suit
SMITH MEDICAL: $4.5MM Class Settlement in Arkin Suit Gets Final OK
SPIRIT AEROSYSTEMS: Bid to Dismiss Accounting Review Suit Pending
SPRINGFIELD, MA: Court Narrows Claims in Savage & Blake Class Suit
STAMPS.COM INC: Appeals Class Cert. Ruling in Karinski to 9th Cir.
STATE FARM: Class Settlement in Mitchell Suit Wins Final Approval
STERICYCLE INC: Daniel Seeks FLSA Conditional Class Certification
TAYLOR FARMS: $5.3M Class Deal in Pena Wage-Hour Suit Has Final Nod
UNIVERSAL HEALTH: Savings Plan Participants Gets Class Status
USGB LLC: Sanchez Files ADA Suit in S.D. New York
VICTORY ENTERTAINMENT: Logans' Bid for Default Judgment Denied
WAL-MART STORES: Griego Seeks to Certify Class & Subclass
WALMART INC: Class Status Bid Filing Due Sept. 1
WASSERSTROM COMPANY: Sanchez Files ADA Suit in S.D. New York
*********
ABSOPURE WATER: Michigan Court Denies Bid to Dismiss Guy Suit
-------------------------------------------------------------
In the lawsuit entitled JUSTIN GUY, Plaintiff v. ABSOPURE WATER
COMPANY, Defendant, Case No. 20-12734 (E.D. Mich.), the U.S.
District Court for the Eastern District of Michigan issued an Order
& Opinion denying the Defendant's motion to dismiss and the
Plaintiff's request for sanctions.
Plaintiff Guy's putative class action is brought pursuant to the
Fair Labor Standards Act ("FLSA"). Guy filed a response opposing
the motion and, in addition, requesting sanctions.
The complaint sets forth these factual allegations, which the Court
presumes to be true for purposes of this opinion. Absopure is a
bottled water company that draws, filters, bottles, brands, and
packages its water, all within Michigan. Guy, who worked as a
"non-exempt intrastate truck driver" in the Detroit area for
Absopure from September 2018 to January 2020, alleges that Absopure
paid him day-rates for the hours he worked in excess of 40 hours
per week.
According to Guy, Absopure should have paid its intrastate truck
drivers an overtime premium--i.e., at a rate of one and one-half
times the regular day-rate--for their overtime hours worked, as
required by the FLSA. Guy seeks overtime compensation pursuant to
29 U.S.C. Section 207(a)(1) and declaratory relief.
In the instant motion to dismiss, Absopure argues that the
complaint should be dismissed based on additional "relevant facts"
that were "not presented" in Guy's complaint, such as the fact that
"Absopure is a private motor carrier under the jurisdiction of the
Department of Transportation." Based on these additional facts,
Absopure argues, Guy is exempt from coverage under the FLSA
pursuant to an exemption known as the Motor Carrier Act ("MCA")
exemption. Under this exemption, the FLSA's wage and hour
provisions do not apply to "any employee with respect to whom the
Secretary of Transportation has power to establish qualifications
and maximum hours of service under the MCA."
The MCA in turn gives the Secretary of Transportation the authority
to regulate the hours of an employee (1) who works for a private
motor carrier that provides transportation in interstate commerce
and (2) whose work activities affect the safety of that motor
carrier (Vaughn v. Watkins Motor Lines, Inc., 291 F.3d 900, 904
(6th Cir. 2002)).
Absopure argues that the Secretary of Transportation has authority
to regulate Guy's hours because his "employment as an Absopure
Sales/Service driver required the Plaintiff to deliver goods which
included items that moved across state lines from their point of
origin outside the State of Michigan to their point of destination
within this State." Absopure contends that Guy's complaint fails to
meet the requisite pleading standards because it "fails to address
the MCA exemption."
In response, Guy argues: (i) dismissal at this stage is premature
because Absopure has the burden of proving the affirmative defense
of Guy's status as an exempt employee; (ii) Absopure's use of
"alternative facts" not plead in Guy's complaint cannot serve as
the predicate for a Rule 12(b)(6) dismissal; and (iii) Absopure
does not establish the applicability of the MCA exemption as a
matter of law.
Mr. Guy also moves the Court to sanction Absopure and its counsel
for bringing the instant motion to dismiss "in bad faith," arguing
that two other courts have previously admonished defense counsel
for bringing similar motions in cases involving a corporate
affiliate of Absopure.
The Court concludes that both motions should be denied.
District Judge Mark A. Goldsmith notes that this is not a case in
which a Rule 12(b)(6) motion is an appropriate vehicle to dismiss a
claim based on an affirmative defense like the applicability of the
MCA exemption. Further, a Rule 12(b)(6) motion cannot be granted
based on "alternative facts" put forth by a defendant and not
pleaded by a plaintiff. With respect to Guy's request for
sanctions, Guy has not demonstrated that Absopure or its counsel
acted with subjective bad faith in bringing the instant motion to
dismiss.
Going forward, the Court encourages counsel to work together in a
civil and professional manner. Barring any particularly egregious
conduct requiring immediate Court attention, the parties should
refrain from filing further motions for sanctions until the
conclusion of this matter, Judge Goldsmith says.
For these reasons, Absopure's motion to dismiss is denied and Guy's
request for sanctions is denied.
A full-text copy of the Court's Order & Opinion dated Feb. 25,
2021, is available at https://tinyurl.com/4u63xzse from
Leagle.com.
AETNA LIFE: Hendricks, et al. Seek to Certify ERISA Class
---------------------------------------------------------
In the class action lawsuit captioned as BRIAN HENDRICKS; ANDREW
SAGALONGOS, on behalf of themselves and all others similarly
situated, v. AETNA LIFE INSURANCE COMPANY, Case No.
2:19-cv-06840-CJC-MRW (C.D. Calif.), the Plaintiffs ask the Court
to enter an order:
1. certifying the following Class:
"All persons covered under Aetna Plans, governed by ERISA,
self-funded or fully insured, whose requests for lumbar
artificial disc replacement surgery were denied at any
time within the applicable statute of limitations, or
whose requests for that surgery will be denied in the
future, on the ground that lumbar artificial disc
replacement surgery is experimental or investigational;"
2. appointing themselves as class representatives; and
3. appointing their counsel as Class Counsel.
The Plaintiffs seek to certify a class of ERISA claimants whose
requests for lumbar artificial disc replacement surgery ("L-ADR")
have been and will be denied by the Defendant Aetna Life Insurance
Company on the basis the surgery is "experimental and
investigational."
The Plaintiffs Brian Hendricks, Andrew Sagalongos, and Chad
Washburn and the members of the class were covered by a health
policy or plan, either self-funded or fully insured, administered
by Aetna which provided medical and surgical benefits.
Aetna offers health insurance, as well as dental, vision and other
plans.
A copy of the Plaintiffs' motion to certify class dated March 5,
2020 is available from PacerMonitor.com at http://bit.ly/30PbgoDat
no extra charge.[CC]
The Plaintiffs are represented by
Robert S. Gianelli, Esq.
Joshua S. Davis, Esq.
Adrian J. Barrio, Esq.
GIANELLI & MORRIS, A LAW CORPORATION
550 South Hope Street, Suite 1645
Los Angeles, CA 90071
Telephone: (213) 489-1600
Facsimile: (213) 489-1611
E-mail: rob.gianelli@gmlawyers.com
joshua.davis@gmlawyers.com
adrian.barrio@gmlawyers.com
AFTRA RETIREMENT: New York Court Consolidates Gilbert & A.A. Suits
------------------------------------------------------------------
In the lawsuit styled RON GILBERT, on behalf of himself and on
behalf of all others similarly situated, Plaintiff v. AFTRA
RETIREMENT FUND and THE SAG-AFTRA HEALTH PLAN, Defendants, Case No.
1:20-cv-10834-ALC (S.D.N.Y.), the U.S. District Court for the
Southern District of New York grants the Joint Motion for
Consolidation and Appointment of Interim Class Counsel.
The Motion seeks to consolidate two related matters pursuant to
Rule 42(a) of the Federal Rules of Civil Procedure: Gilbert, and
A.A., et al. v. AFTRA Retirement Fund, Case No. 1:20-cv-11119-ALC.
It further requests that, pursuant to Rule 23(g)(3) of the Federal
Rules of Civil Procedure, Finkelstein, Blankinship, Frei-Pearson &
Garber, LLP ("FBFG"), Keller Lenkner LLC ("KL"), Morgan & Morgan
("MM"), and Clayeo C. Arnold, a Professional Law Corp ("CCA") be
appointed as Co-Lead Interim Class Counsel.
Upon consideration of the unopposed Motion, memorandum in support
thereof, and the accompanying declarations, the Court concludes
that the two matters involve common questions of law and fact and
that FBFG, KL, MM, and CCA are appropriate Co-Lead Interim Class
Counsel. Accordingly, the Court grants the Joint Motion for
Consolidation and Appointment of Interim Class Counsel.
The Clerk of Court is directed to consolidate the two cases. Future
submissions are to be filed under the lower docket,
1:20-cv-10834-ALC. The Plaintiffs are ordered to file a
Consolidated Amended Class Action Complaint within 30 days of the
Order.
A full-text copy of the Court's Order dated Feb. 25, 2021, is
available at https://tinyurl.com/tsw7k37c from Leagle.com.
ALABAMA: Court Poses 3 Evaluations Questions in Hunter v. Boswell
-----------------------------------------------------------------
The U.S. District Court for the District of Alabama poses three
questions relating to competency and sanity evaluations, and
restoration process in the lawsuit entitled DEMONTRAY HUNTER, et
al., Plaintiffs v. KIMBERLY G. BOSWELL, in her official capacity as
the Commissioner of the Alabama Department of Mental Health,
Defendant, Case No. 2:16cv798-MHT (M.D. Ala.).
The long-running class action litigation addresses delays in the
process by which pretrial detainees in the Alabama state court
system have their competency to stand trial evaluated and receive
competency restoration treatment when found incompetent. The Court
would like to confirm whether its understanding of this overall
process is accurate, and the Court would like the parties to answer
certain questions that the Court has regarding a proposal that the
parties presented at the status conference held in the case on
February 22, 2021.
Rule 11 of the Alabama Rules of Criminal Procedure governs
competency evaluations and commitments for treatment. When a
detainee is facing trial, the defendant, either attorney, or the
court on its own motion may request an evaluation of the
defendant's competency to stand trial, see Ala. R. Crim. P.
11.2(a)(1). If the defendant has indicated that he or she intends
to pursue an insanity defense, any of these parties may also
request an examination of the defendant's sanity at the time of the
offense. Sanity evaluations are not the subject of the case, but
they are relevant to the parties' proposal that the Court will
return to below.
Once a competency evaluation is requested, the detainee may either
return to jail and have the evaluation done there, or may be sent
to one of the state hospitals for the evaluation. Evaluations done
in the jails are called "outpatient evaluations" by the consent
decree in the instant case, while evaluations in the hospitals are
called "inpatient evaluations." In the case, the Plaintiff Alabama
Disabilities Advocacy Program (ADAP) monitors the amount of time it
takes for a pretrial detainee to receive an outpatient or inpatient
competency evaluation once the evaluation is requested. This is
reflected in the data from the compliance reports showing the
timelines for the provision of outpatient and inpatient mental
evaluations.
After the competency evaluation has been completed, the next step
is for an evaluation report to be finished and submitted to the
state court that requested the evaluation. ADAP monitors the amount
of time that passes between when an evaluation is finished and when
the report from that evaluation is submitted to the state court.
This is reflected in the data from the compliance reports showing
the timelines for the submission of reports for outpatient and
inpatient mental evaluations.
When the state court receives the evaluation report, the next step
is for that court to schedule a hearing on the report and decide
whether the defendant is in fact incompetent to stand trial. The
Alabama Rules of Criminal Procedure require this hearing to be held
within 42 days of the state court's receipt of the evaluation
report. But ADAP does not monitor how long this part of the process
takes, so the parties do not know how often state judges adhere to
that timeline.
At this hearing, the court may find the defendant either competent
or incompetent to stand trial. If the defendant is found competent
at the hearing, the criminal case proceeds and ADAP's monitoring
stops for that detainee. If the defendant is found incompetent at
the hearing, and the court finds that the defendant doesn't pose a
risk of harm to themselves or others, the defendant must be
released for outpatient treatment, and in some cases the charges
must be dismissed. ADAP's monitoring ends then for those defendants
too.
But if the defendant is found incompetent at the hearing, and the
court also finds that the defendant poses a risk of harm to
themselves or others, the court will order the defendant committed
to ADMH custody for competency restoration treatment. ADAP monitors
the amount of time that passes from when the court orders a
defendant committed for competency restoration treatment to when
the defendant is admitted to a state hospital for treatment. This
is reflected in the data from the compliance reports showing the
timelines for competency restoration treatment.
At some point after the defendant's admission to a hospital for
competency restoration treatment, the hospital or another party may
inform the state court that the defendant has now become competent
to proceed. At that point, the state court will schedule another
hearing on the defendant's competency and will proceed with the
criminal case if the court finds the defendant competent. ADAP does
not monitor the amount of time it takes for a defendant to be
brought to competency after his or her hospital admission, nor does
it monitor the amount of time it takes state courts to hold
competency hearings after being notified that defendants are
competent.
During the February 22, 2021, status conference in the case, the
parties raised a concern that competency evaluations are not being
completed until the defendant is ready to have a sanity evaluation
done as well. Sanity evaluations are much more complicated and
require the defendant to be sane enough to take part in the
evaluation, so combining these two evaluations may delay the
competency evaluation or even require psychiatric treatment of the
defendant before either evaluation can take place. The parties,
therefore, proposed "de-coupling" sanity and competency evaluations
to address these delays.
In light of all of the above, the Court has the following questions
for the parties:
(1) Is the Court's summary of the competency evaluation and
restoration process and the data monitored by ADAP
accurate?
(2) What do the parties mean when they say that competency and
sanity evaluations are being done at the same time? Does
this require pretrial detainees to undergo psychiatric
treatment before they receive a competency evaluation? How
is such treatment conducted without a finding of
incompetence?
(3) How exactly would the parties' proposed "de-coupling"
work? Would it split up the evaluations themselves, the
reports of the evaluations, the provision of those reports
to the state courts, or all of the above?
It is, therefore, ordered that a status conference to discuss these
questions be set. The courtroom deputy is to arrange for the
conference to be conducted by videoconferencing.
A full-text copy of the Court's "Questions from the Court" dated
Feb. 25, 2021, is available at https://tinyurl.com/4fta68p3 from
Leagle.com.
ALLIANZ GLOBAL: Court Grants Bid to File Under Seal in Luxottica
----------------------------------------------------------------
In the lawsuit captioned LUXOTTICA OF AMERICA INC., Plaintiff and
Counter-Defendant v. ALLIANZ GLOBAL RISKS US INSURANCE COMPANY,
Defendant and Counter-Claimant, Case No. 1:20-cv-698 (S.D. Ohio),
the U.S. District Court for the Southern District of Ohio grants
the parties' joint motion to file documents under seal.
The Motion to Seal arises in the context of an insurance dispute.
Plaintiff Luxottica is an optical retailer with its principal place
of business in Mason, Ohio. Defendant Allianz is an insurance
company with its principal place of business in Chicago, Illinois.
In September 2017, three class action lawsuits were filed against
Luxottica in California, Florida, and New York. In December 2017,
those class actions were consolidated into one lawsuit ("Underlying
Litigation"). At present, the Underlying Litigation remains pending
in the Eastern District of New York (Allegra, et al. v. Luxottica
Retail North America, 1:17-cv-5216 (E.D.N.Y)).
Between 2017 and 2020, Allianz paid Luxottica's defense costs in
the Underlying Litigation, pursuant to an optical liability
insurance endorsement. However, in 2020, Allianz reversed its
coverage position and refused to pay any further defense costs.
Allianz now maintains that is has no duty to defend Luxottica in
the Underlying Litigation.
Following these events, Luxottica commenced the instant lawsuit
against Allianz. In its Complaint, Luxottica alleges that
"Allianz's reversal of its coverage position is unreasonable,
incorrect, and without reasonable justification." Luxottica seeks,
inter alia, a declaration confirming that Allianz has a duty to
defend Luxottica in the Underlying Litigation.
On December 11, 2020, the Court granted the parties leave to file
cross motions for summary judgment on Luxottica's duty to defend
claim. Thereafter, on January 19, 2021, the parties filed the
instant Motion to Seal. In the Motion to Seal, the parties move the
Court for leave to file two exhibits under seal, in connection with
their forthcoming summary judgment briefs.
In the Motion to Seal, the parties move the Court for leave to file
two Exhibits under seal, in connection with their forthcoming
summary judgment briefs. The parties have submitted both Exhibits
to the Court for in camera review. The first Exhibit contains a
chain of email messages, among the claims department at Allianz,
the legal department at Luxottica, and defense counsel in the
Underlying Litigation. The second Exhibit contains an insurance
coverage letter, from a claims specialist at Allianz (named Anthony
Togias), to the general counsel at Luxottica (named Jason Groppe).
The Motion to Seal avers that both of the Exhibits should be filed
under seal, because both of the Exhibits contain privileged
communications, which occurred while Allianz was paying Luxottica's
defense costs in the Underlying Litigation, and which regard the
various claims asserted against Luxottica in the Underlying
Litigation. Notably, in the Motion to Seal, the parties do not seek
to seal the contents of the Exhibits in their entirety. Instead,
the parties propose that redacted versions of the Exhibits be filed
on CM/ECF. The parties have submitted proposed redactions to the
Court for confidential review.
District Judge Timothy S. Black notes that as an initial matter,
there is a compelling reason to seal the Exhibits. He has carefully
reviewed the Exhibits in camera. And, on careful review, he agrees
that both of the Exhibits contain privileged information, which is
protected by the attorney-client privilege and/or the work product
doctrine, citing Accord State ex rel. Dawson v. Bloom-Carroll Local
Sch. Dist., 959 N.E.2d 524, 530 (Ohio 2011).
Moreover, the public's interest in the redacted portions of the
Exhibits appears to be limited, Judge Black finds. At this
juncture, it does not appear that the public will need to review
the specific contents of the parties' privileged communications to
understand either the merits of the Plaintiff's claims or the
arguments for/against summary judgment, Judge Black holds. Thus, at
this juncture, the public's interest in the Exhibits' full
disclosure appears to be minimal.
Finally, the proposed seal is narrowly tailored to protect the
Exhibits' sensitive information. Judge Black notes, the parties do
not seek to seal the contents of the Exhibits completely. Instead,
the parties have offered to file redacted versions of the Exhibits
on CM/ECF, such that the public can view the Exhibits'
non-privileged portions in their entirety.
Given this offer, the Court finds that the proposed seal is no
broader than necessary to address the compelling reason for
non-disclosure.
Based upon the foregoing, the parties' Motion to Seal is granted.
The Clerk is directed to file sealed versions of the Exhibits on
CM/ECF. The parties are granted leave to file redacted versions of
the Exhibits in connection with their forthcoming summary judgment
briefs.
If the parties intend to redact any portion(s) of their forthcoming
summary judgment motions, which discuss the privileged information
in the Exhibits, the parties will: (1) file redacted versions of
the briefs on CM/ECF; and (2) submit unredacted versions to the
Court, via email to Chambers (black_chambers@ohsd.uscourts.gov),
for sealed filing.
A full-text copy of the Court's Order dated Feb. 25, 2021, is
available at https://tinyurl.com/wkm6e6eb from Leagle.com.
ALLSTATE FIRE & CASUALTY: Auciello Files Suit in N.D. Ohio
----------------------------------------------------------
A class action lawsuit has been filed against Allstate Fire &
Casualty Insurance Company, et al. The case is styled as Francine
Auciello, Todd Jarrett, individually and behalf of all others
similarly situated v. Allstate Fire & Casualty Insurance Company,
Allstate Northbrook Indemnity Company, Case No. 4:21-cv-00615-SL
(N.D. Ohio, March 17, 2021).
The nature of suit is stated as Insurance for Breach of Contract.
Allstate Fire and Casualty Insurance Company --
https://www.allstate.com/ -- operates as an insurance firm. The
Company offers auto, home, renters, condo, motorcycle, life, and
roadside insurance services.[BN]
The Plaintiff is represented by:
Stuart E. Scott, Esq.
Kevin C. Hulick, Esq.
SPANGENBERG, SHIBLEY & LIBER
1001 Lakeside Avenue, E., Ste. 1700
Cleveland, OH 44114
Phone: (718) 971-9474
Fax: (216) 696-3924
Email: jshalom@jonathanshalomlaw.com
khulick@spanglaw.com
- and -
Andrew Shamis, Esq.
SHAMIS & GENTILE
14 N.E. 1st Avenue, Ste. 705
Miami, FL 33132
Phone: (305) 479-2299
Fax: (786) 623-0915
Email: ashamis@shamisgentile.com
- and -
Scott A. Edelsberg, Esq.
EDELSBERG LAW
20900 N.E. 30th Avenue, Ste. 417
Aventura, FL 33180
Phone: (305) 975-3320
Email: scott@edelsberglaw.com
ALTERNATIVE IRA: Sanchez Files ADA Suit in S.D. New York
--------------------------------------------------------
A class action lawsuit has been filed against Alternative IRA
Services, LLC. The case is styled as Cristian Sanchez, on behalf of
himself and all others similarly situated v. Alternative IRA
Services, LLC, Case No. 1:21-cv-02292 (S.D.N.Y., March 16, 2021).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.[BN]
The Plaintiff is represented by:
Joseph H. Mizrahi, Esq.
COHEN & MIZRAHI LLP
300 Cadman Plaza West, 12th Floor
Brooklyn, NY 11201
Phone: (929) 575-4175
Fax: (929) 575-4195
Email: joseph@cml.legal
AMAZON.COM INC: Monopolizes Ebook Market, Cook Suit Asserts
------------------------------------------------------------
Jeffrey Cook and Susan Cook, on behalf of themselves and all others
similarly situated, Plaintiffs, v. Amazon.Com, Inc., Harpercollins
Publishers LLC, Simon & Schuster, Inc., Macmillan Publishing Group,
LLC, Hachette Book Group and Penguin Random House LLC, Defendants,
Case No. 21-cv-01369 (S.D. N.Y., February 17, 2021), seeks a
permanent injunction preventing the Defendants from continuing
anticompetitive effects and damages pursuant to Section 1 of the
Sherman Act and the Clayton Act.
Defendants are publishers and book retailers who are alleged of
monopolizing the ebook market and in the process eliminate all
substitute products and retail competitors. They are accused of
restraining competition by controlling the prices paid for eBooks
purchased from Harpercollins Publishers LLC, Simon & Schuster,
Inc., Macmillan Publishing Group, LLC, Hachette Book Group and
Penguin Random House LLC through retail platforms other than
Amazon.com causing book buyers to overpay for eBooks.
Plaintiffs are consumers and direct purchasers of electronic books
published by the Defendants through the Amazon.com retail platform.
[BN]
Plaintiff is represented by:
Gregory B. Linkh, Esq.
Brian P. Murray, Esq.
Lee Albert, Esq.
GLANCY PRONGAY & MURRAY LLP
230 Park Avenue, Suite 530
New York, NY 10169
Telephone: (212) 682-5340
Facsimile: (212) 884-0988
Email: bmurray@glancylaw.com
glinkh@glancylaw.com
lalbert@glancylaw.com
- and -
Eugene A. Spector, Esq.
Jeffrey J. Corrigan, Esq.
William G. Caldes, Esq.
Jeffrey L. Spector, Esq.
Diana J. Zinser, Esq.
SPECTOR ROSEMAN & KODROFF, P.C.
2001 Market Street, Suite 3420
Philadelphia, PA 19103
Telephone: (215) 496-0300
Facsimile: (215) 496-6611
Email: espector@srkattorneys.com
jcorrigan@srkattorneys.com
bcaldes@srkattorneys.com
jspector@srkattorneys.com
dzinser@srkattorneys.com
- and -
Steven A. Kanner, Esq.
Douglas A. Millen, Esq.
Brian M. Hogan, Esq.
FREED KANNER LONDON & MILLEN LLC
2201 Waukegan Road, #130
Bannockburn, IL 60015
Telephone: (224) 632-4500
Facsimile: (224) 632-4521
Email: skanner@fklmlaw.com
dmillen@fklmlaw.com
bhogan@fklmlaw.com
AMERICAN GENERAL: Buck Appeals Class Cert. Bid Denial to 3rd Cir.
-----------------------------------------------------------------
Plaintiffs DUANE BUCK and ANN BUCK filed an appeal from a court
ruling entered in the lawsuit entitled DUANE BUCK and ANN BUCK, on
behalf of themselves and all others similarly situated, Plaintiffs
v. AMERICAN GENERAL LIFE INSURANCE COMPANY, Defendant, Case No.
1-17-cv-13278, in the United States District Court for the District
of New Jersey.
The lawsuit involves "universal" life insurance policies issued by
American General Life Insurance Company (AGLIC). Universal life
insurance is a form of permanent life insurance also known as
"flexible premium" adjustable life insurance. Universal life
insurance is designed to give policyholders flexibility, both in
the payment of premiums and the adjustment of death benefits. The
Defendant allegedly provided faulty calculations to its universal
life insurance policyholders depicting how decreases in death
benefits and/or changes in the amount of premiums would affect the
maximum premium payments policyholders could make without resulting
in a violation of federal tax regulations and causing adverse tax
consequences to the policyholders. Such adverse tax consequences
include rendering cash values and/or death benefits of
policyholders taxable. According to the complaint, AGLIC did not
disclose its faulty calculations to Plaintiffs, who continued to
pay planned premiums at the level and frequency which Plaintiffs
and AGLIC had agreed upon.
The Plaintiffs are taking an appeal pursuant to Fed. R. Civ. P.
23(f) from the Court's Order dated February 25, 2021, denying their
motion to certify two proposed classes and appoint class
representatives and class counsel, which Defendant American General
Life Insurance has opposed.
The appellate case is captioned as Duane Buck, et al. v. American
General Life Insurance Co., Case No. 21-8013, in the United States
Court of Appeals for the Third Circuit, March 11, 2021.[BN]
Plaintiffs-Petitioners ANN BUCK and DUANE BUCK, on behalf of
themselves and all others similarly situated, are represented by:
Scott B. Gorman, Esq.
GORMAN & GORMAN
457 Haddonfield Road
Liberty View, Suite 400
Cherry Hill, NJ 08002
Telephone: (856) 665-4300
E-mail: sgorman@gormanlegal.com
- and -
Craig S. Hilliard, Esq.
Martin P. Schrama, Esq.
STARK & STARK
P.O. Box 5315
Princeton, NJ 08543
Telephone: (609) 896-9060
E-mail: chilliard@stark-stark.com
mschrama@stark-stark.com
Defendant-Respondent AMERICAN GENERAL LIFE INSURANCE CO. is
represented by:
Andrew P. Fishkin, Esq.
EDWARDS & ANGELL
Gateway Three
Newark, NJ 07102
Telephone: (201) 623-2626
E-mail: afishkin@fishkinlucks.com
- and -
Zachary Winthrop Silverman, Esq.
FISHKIN LUCKS
One Riverfront Plaza
The Legal Center, Suite 410
Newark, NJ 07102
Telephone: (973) 536-2800
E-mail: zsilverman@fishkinlucks.com
AMMONITA INC: Tenzer-Fuchs Files ADA Suit in E.D. New York
----------------------------------------------------------
A class action lawsuit has been filed against Ammonita, Inc. The
case is styled as Michelle Tenzer-Fuchs, on behalf of herself and
all others similarly situated v. Ammonita, Inc. d/b/a
Caramelitta.com, Case No. 2:21-cv-01425 (E.D.N.Y., March 17,
2021).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Caramelitta -- https://caramelitta.com/ -- is a women's clothes
online store.[BN]
The Plaintiff is represented by:
Jonathan Shalom, Esq.
SHALOM LAW, PLLC
105-13 Metropolitan Avenue
Forest Hills, NY 11375
Phone: (718) 971-9474
Email: jshalom@jonathanshalomlaw.com
AMN SERVICES: California Supreme Court Flips Judgment in Donohue
----------------------------------------------------------------
In the lawsuit styled KENNEDY DONOHUE, Plaintiff and Appellant v.
AMN SERVICES, LLC, Defendant and Respondent, Case No. S253677
(Cal.), the Supreme Court of California reverses the Court of
Appeal's judgment as to the meal period claim and remands the case
with directions.
Justice Goodwin Hon Liu authored the opinion of the Court, in which
Chief Justice Tani Gorre Cantil-Sakauye and Justices Carol A.
Corrigan, Mariano-Florentino Cuellar, Leondra R. Kruger, Joshua P.
Groban and Martin J. Jenkins.
Under California law, employers must generally provide employees
with one 30-minute meal period that begins no later than the end of
the fifth hour of work and another 30-minute meal period that
begins no later than the end of the tenth hour of work (Labor Code,
Section 512, subd. (a); Industrial Welfare Commission (IWC) wage
order No. 4-2001, Section 11(A) (Wage Order No. 4)). If an employer
does not provide an employee with a compliant meal period, then
"the employer will pay the employee one additional hour of pay at
the employee's regular rate of compensation for each workday that
the meal period is not provided" (Labor Code, Section 226.7, subd.
(c); Wage Order No. 4, Section 11(B)).
In the case, the Supreme Court decides two questions of law
relating to meal periods. First, the Supreme Court holds that
employers cannot engage in the practice of rounding time
punches--that is, adjusting the hours that an employee has actually
worked to the nearest preset time increment--in the meal period
context. The meal period provisions are designed to prevent even
minor infringements on meal period requirements, and rounding is
incompatible with that objective. Second, the Supreme Court holds
that time records showing noncompliant meal periods raise a
rebuttable presumption of meal period violations, including at the
summary judgment stage.
Background
Defendant AMN is a healthcare services and staffing company that
recruits nurses for temporary contract assignments. Between
September 2012 and February 2014, Plaintiff Kennedy Donohue worked
as a nurse recruiter at AMN's San Diego offices. In that role,
Donohue did not have predetermined shifts but was expected to work
eight hours per day. Per AMN's company policy, nurse recruiters
were provided with 30-minute meal periods beginning no later than
the end of the fifth hour of work. AMN's policy and trainings
emphasized that the meal period was an "uninterrupted 30 minute"
break, during which employees were "relieved of all job duties,"
were "free to leave the office site," and "controlled the time."
The policy also specified that supervisors should not "impede or
discourage team members from taking their break."
Until April 2015, AMN used an electronic timekeeping system called
Team Time to track its employees' compensable time. Employees used
their work desktop computers to punch in and out of Team Time,
including at the beginning of the day, at the beginning of lunch,
at the end of lunch, and at the end of the day. Employees could
also ask to manually adjust any inaccurate time punches. For
purposes of calculating work time and compensation, Team Time
rounded the time punches to the nearest 10-minute increment.
AMN also used Team Time to manage potentially noncompliant meal
periods. Before September 2012, whenever Team Time records showed a
missed meal period, a meal period shorter than 30 minutes, or a
meal period taken after five hours of work, AMN assumed there had
been a meal period violation and paid the employee a premium wage.
In September 2012, AMN added a feature to Team Time to comply with
the meal period requirements articulated in Brinker Restaurant
Corp. v. Superior Court (2012) 53 Cal.4th 1004 (Brinker): When an
employee recorded a missed, short, or delayed meal period, a
dropdown menu would appear on Team Time. The dropdown menu prompted
the employee to choose one of three options: (1) "I was provided an
opportunity to take a 30 min break before the end of my 5th hour of
work but chose not to"; (2) "I was provided an opportunity to take
a 30 min break before the end of my 5th hour of work but chose to
take a shorter/later break"; (3) "I was not provided an opportunity
to take a 30 min break before the end of my 5th hour of work."
In April 2014, Donohue filed a class action lawsuit against AMN.
Donohue alleged various wage and hour violations, including the
meal period claim at issue. In October 2015, the trial court
certified a class of all nonexempt California nurse recruiters who
were employed by AMN between April 23, 2010, and April 26, 2015
with respect to the meal period claim. April 26, 2015, marks the
end of the class period because on that date AMN switched to a
timekeeping system that does not round time entries.
In November 2016, Donohue filed a motion for summary adjudication.
As to the meal period claim, Donohue argued that AMN denied its
employees compliant meal periods, improperly rounded time records
for meal periods using Team Time, and failed to pay premium wages
for noncompliant meal periods.
AMN filed a cross-motion for summary judgment or, in the
alternative, summary adjudication. As to the meal period claim, AMN
contended that it did not have a uniform policy or practice of
denying employees compliant meal periods. It also argued that
Donohue did not plead in the operative complaint that AMN's
rounding policy resulted in meal period violations.
The trial court granted AMN's motion for summary judgment and
denied Donohue's motion for summary adjudication, including on the
meal period claim. The court concluded there was insufficient
evidence that AMN had a policy or practice of denying employees
compliant meal periods. According to the court, AMN's meal period
policy complied with California law, and its practice of rounding
the time punches for meal periods was proper. The court said that
even if no case has ever applied rounding to meal periods, "the
rationale behind allowing rounding for work time would be the same
for meal break time." According to the court, AMN's rounding policy
fairly compensated employees over time, and there was insufficient
evidence that supervisors at AMN prevented employees from taking
compliant meal periods.
The Court of Appeal affirmed and generally agreed with the trial
court's reasoning as to the meal period claim. It decided that it
was proper for AMN to round time punches for meal periods. It
says, the plain text of Labor Code section 512 and Wage Order No.
4, which govern meal periods, does not prohibit rounding. It
explained that rounding "'is a practical method for calculating
worktime and can be a neutral calculation tool for providing full
payment to employees'" and that no case law suggests rounding does
not apply to meal periods. The Court rejected Donohue's argument
that rounding meal period time punches "'would quickly eviscerate
employees' statutory right to full 30 minute meal periods.'"
The Court of Appeal also concluded that AMN's rounding policy was
neutral on its face and as applied, as required by California law.
Itagreed with AMN that the rounding policy fully compens ated
employees over time and actually resulted in the overcompensation
of the class as a whole. It rejected Donohue's argument that the
rounding policy did not properly pay employees premium wages for
meal period violations. According to the court, "the neutrality of
a rounding policy does not depend on the frequency of penalties."
In addition, the Court of Appeal rejected Donohue's argument that
time records showing missing, short, or delayed meal periods give
rise to a rebuttable presumption of meal period violations. In its
view, this rebuttable presumption applies only at the class
certification stage, not at the summary judgment stage. Finally, it
considered Donohue's testimony that AMN's office culture
discouraged employees from taking full and timely lunches. The
Court noted that Donohue never indicated a meal period violation on
Team Time and always certified that her timesheet was accurate.
Thus, it concluded, her testimony was insufficient to raise a
triable issue of material fact as to the meal period claim.
The Supreme Court granted review to address two questions of law
relating to the meal period claim: whether an employer may properly
round time punches for meal periods, and whether time records
showing noncompliant meal periods raise a rebuttable presumption of
meal period violations.
Disposition
The Supreme Court concludes that AMN improperly used rounded time
punches to track potentially noncompliant meal periods. Before
September 2012, when Team Time records showed a missed meal period
or a meal period that was shorter than 30 minutes or taken after
five hours of work, AMN assumed a meal period violation and paid
the employee a premium wage. This system may have resulted in some
overcompensation because AMN gave employees premium pay regardless
of whether they voluntarily chose to work during an off-duty meal
period. But this system did not properly account for meal periods
that were short or delayed based on actual time punches but did not
appear as short or delayed under the rounding policy. AMN would be
liable for premium pay for any instances in which employees did not
voluntarily choose to shorten or delay those meal periods.
After September 2012, when an employee recorded a missed, short, or
delayed meal period, a dropdown menu appeared on Team Time. The
dropdown menu prompted the employee to choose one of three options.
Judge Liu holds that this system also did not properly account for
meal periods that were short or delayed based on unrounded as
opposed to rounded time punches. The dropdown menu did not appear
for such meal periods. If any of those meal periods were not
voluntarily shortened or delayed, then AMN would be liable for
premium pay.
Judge Liu notes that the Court of Appeal reached the opposite
conclusion as to the rounding policy before and after September
2012 and ruled in favor of AMN. The Supreme Court reverses the
Court of Appeal's judgment as to the meal period claim and remands
with directions to remand the matter to the trial court to permit
either party to file a new summary adjudication motion as to the
meal period claim.
Because the parties did not have the benefit of this decision when
litigating the defendant's summary judgment motion and the
plaintiff's summary adjudication motion, they should now be
afforded another opportunity to present relevant evidence
concerning AMN's compliance with Brinker. As to the meal periods
that are short or delayed based on unrounded time punches and for
which no premium wages were paid, did the employees voluntarily
choose to take short or delayed meal periods? On remand, the
parties will have the opportunity to present evidence bearing on
this question.
The Supreme Court provides some guidance on how the rebuttable
presumption should be applied on remand in light of the usual
summary adjudication standards. According to Donohue's expert
witness, AMN's time records showed 40,110 short meal periods and
6,651 delayed meal periods for which premium wages were not paid;
these meal periods did not show up as short or delayed in AMN's
timekeeping system because of rounding. The introduction of these
time records by either party would trigger the rebuttable
presumption. If AMN renews its motion for summary adjudication, it
must satisfy the initial burden of production and make a prima
facie showing that "one or more elements of the cause of action . .
. cannot be established, or that there is a complete defense to the
cause of action."
To satisfy this burden, Judge Liu notes, AMN could try to establish
the defense that it genuinely relieved employees from duty during
meal periods. Specifically, to rebut the presumption of
noncompliance arising from the time records, AMN would need to
provide evidence that employees voluntarily chose to work during
off-duty meal periods that appear in time records to be short or
delayed based on unrounded time punches. If AMN satisfies this
burden, then the burden of production shifts to Donohue "to show
that a triable issue of one or more material facts exists as to the
cause of action or a defense." But the ultimate burden of
persuasion remains with the defendant to show that no genuine issue
of material fact exists and that it is entitled to judgment as a
matter of law.
Conversely, when a plaintiff moves for summary adjudication, the
plaintiff meets "his or her burden of showing that there is no
defense to a cause of action" if the plaintiff "prove[s] each
element of the cause of action entitling the party to judgment on
the cause of action." Judge Liu finds that Donohue can satisfy
that burden by using time records to raise a rebuttable presumption
of meal period violations. Once the plaintiff meets that burden,
the burden shifts to the defendant "to show that a triable issue of
one or more material facts exists as to the cause of action or a
defense." But the plaintiff bears the ultimate burden of persuasion
to show that no genuine issue of material fact exists and that it
is entitled to judgment as a matter of law. The parties may present
new evidence and arguments to address these issues on remand.
According to AMN, it has already established that the time records
do not raise a rebuttable presumption of meal period violations.
AMN argues that Donohue never used Team Time's dropdown menu to
indicate that she was not provided with a compliant meal period,
which suggests that she was never denied a compliant meal period.
But because the dropdown menu was triggered by rounded time
punches, this evidence does not encompass all meal periods that
were short or delayed based on actual time punches, Judge Liu
opines. Thus, AMN cannot rely on this evidence to prove that there
were no meal period violations.
AMN also contends that the biweekly certifications signed by
Donohue and other class members show that there were no meal period
violations. Donohue argues that AMN cannot rely on the
certifications to prove that there were no meal period violations.
Because the Team Time dropdown menu was triggered by rounded time
punches, the system did not flag meal periods that were short or
delayed based on unrounded as opposed to rounded time punches. As a
result, Donohue contends, employees would not have known about the
potentially noncompliant meal periods that Team Time did not flag
unless they kept their own time records. According to Donohue, Team
Time thus led to the systematic underreporting of noncompliant meal
periods and caused the biweekly certifications to be inaccurate. In
addition, Donohue argues that the significance of the
certifications should be discounted because employees had to sign
them to get paid.
Judge Liu holds that the Panel leaves these issues for the parties
and the trial court to address on remand. The Supreme Court notes
that if, as Donohue contends, employees would not have known about
potentially noncompliant meal periods that Team Time did not flag
unless they kept their own time records, then, the certifications
would be inaccurate and cannot be used to prove that there were no
meal period violations. It is the employer's duty to maintain
accurate time records; the law does not expect or require employees
to keep their own time records to uncover potential meal period
violations.
Conclusion
The Supreme Court reverses the judgment of the Court of Appeal with
directions to remand to the trial court for further proceedings
consistent with the Opinion.
CANTIL-SAKAUYE, C. J., CORRIGAN, J., CUELLAR, J., KRUGER, J. and
GROBAN, J. HOFFSTADT, J.,* concurs.
A full-text copy of the Court's Opinion dated Feb. 25, 2021, is
available at https://tinyurl.com/44vzs6kr from Leagle.com.
Sullivan Law Group, William B. Sullivan --
helen@sullivanlawgroupapc.com -- Eric K. Yaeckel --
Yaeckel@sullivanlawgroupapc.com -- Clint S. Engleson --
cengleson@sullivanlawgroupapc.com -- Niddrie Addams Fuller Singh
and Rupa G. Singh -- rsingh@appealfirm.com -- for Plaintiff and
Appellant.
Cohelan Khoury & Singer and Michael D. Singer -- msinger@ckslaw.com
-- for California Employment Lawyers Association as Amicus Curiae
on behalf of Plaintiff and Appellant.
H. Scott Leviant -- scott.leviant@moonyanglaw.com -- and Dennis F.
Moss -- dennis@dennismosslaw.com -- for Moon & Yang, APC, Clients
of Moon & Yang, APC, and Moss Bollinger LLP as Amici Curiae on
behalf of Plaintiff and Appellant.
DLA Piper, Mary C. Dollarhide -- mary.dollarhide@dlapiper.com --
and Betsey Boutelle -- betsey.boutelle@dlapiper.com -- for
Defendant and Respondent.
Jones Day, George S. Howard -- gshoward@jonesday.com -- Cindi L.
Ritchey -- critchey@jonesday.com -- and Raymond W. Duer --
rduer@fisherphillips.com -- for Employers Group and California
Employment Law Council as Amici Curiae on behalf of Defendant and
Respondent.
ANAPTYSBIO INC: Continues to Defend Etokimab-Related Suit
---------------------------------------------------------
AnaptysBio, Inc. said in its Form 10-K report filed with the U.S.
Securities and Exchange Commission on February 25, 2021, for the
fiscal year ended December 31, 2020, that the company continues to
defend itself in a putative shareholder class action suit related
to its drug etokimab.
On March 25, 2020, a putative securities class action was filed in
the United States District Court for the Southern District of
California naming the Company and certain of its current or former
officers as defendants.
The complaint purports to assert claims under Section 10(b) of the
Exchange Act Rule 10b-5, and Section 20(a) of the Exchange Act, on
behalf of persons and entities who acquired the company's common
stock between October 10, 2017 and November 7, 2019.
An amended complaint was filed on September 30, 2020 alleging that,
during the Class Period, the defendants made material
misrepresentations or omissions regarding the company's etokimab
product candidate that artificially inflated its stock price.
The plaintiff seeks, among other things, damages in an unspecified
amount, as well as costs and expenses.
The company believes that the plaintiff's allegations are without
merit and intend to vigorously defend against the claims. Because
the Company is in the early stages of this litigation matter, the
company is unable to estimate a reasonably possible loss or range
of loss, if any, that may result from these matters.
On September 1, 2020, a related shareholder derivative complaint
was filed based on allegations substantially similar to those in
the class action, and asserting claims against current or former
officers and directors for contribution under Sections 10(b) and
21D of the Exchange Act, breach of fiduciary duty, unjust
enrichment and corporate waste. On January 28, 2021, this
derivative action was voluntarily dismissed without prejudice.
AnaptysBio, Inc. is a clinical stage biotechnology company
developing first-in-class immunology therapeutic product candidates
to patients. The Company is based in San Diego, California.
ANZIE BLUE: McCay Seeks to Certify FLSA Suit as Collective Action
-----------------------------------------------------------------
In the class action lawsuit captioned as HALEY PAIGE MCCAY, On
Behalf of Herself and All Others Similarly Situated, v. ANZIE BLUE,
LLC, DEREK VAN MOL, and MARCIE VAN MOL, Case No. 3:21-cv-00078
(M.D. Tenn.), the Plaintiffs ask the Court to enter an order:
1. conditionally certifying this case as a collective action
pursuant to Section 16(b) of the Fair Labor Standards Act
(FLSA), 29 U.S.C. section 216(b) on behalf of:;
"All hourly-paid Front of the House employees, including
Bartenders, Cashiers, Baristas, Runners, and Coordinators,
of the Defendants who have worked at any time since
February 1, 2018;" and
2. authorizing notice of this action via U.S. Mail and e-mail
to those members of the conditionally-certified collective
action.
This narrowly defined collective class consists of
front-of-the-house workers who worked at a single restaurant in
Nashville, during the same time period, under the same management,
and subject to common pay policies and practices. They are also all
of the hourly paid employees who earned tips while working for
Defendants -- though Defendants kept these tips.
A copy of the Plaintiffs' motion to certify class dated March 5,
2020 is available from PacerMonitor.com at https://bit.ly/3r27zqE
at no extra charge.[CC]
The Plaintiffs are represented by
Joshua A. Frank, Esq.
David W. Garrison, Esq.
BARRETT JOHNSTON MARTIN & GARRISON, LLC
Philips Plaza
414 Union Street, Suite 900
Nashville, TN 37219
Telephone: (615) 244-2202
Facsimile: (615) 252-3798
E-mail: dgarrison@barrettjohnston.com
jfrank@barrettjohnston.com
AURORA, CO: Individual Officers' Joint Bid to Stay in Minter Denied
-------------------------------------------------------------------
Magistrate Judge Nina Y. Wang of the U.S. District Court for the
District of Colorado denied the Individual Law Enforcement
Defendants' Joint Motion to Stay Discovery and Vacate the
Scheduling Conference in the lawsuit entitled LINDSAY MINTER,
THOMAS MAYES, KRISTIN MALLORY, TYLER SPRAGUE, ALISSIA ACKER, IRMA
JOLENE FISHER, and TOBIAS HOPP, Plaintiffs v. CITY OF AURORA,
COLORADO, JEANNETTE RODRIGUEZ, VANESSA WILSON, MICHAEL COFFMAN,
STEPHEN E. REDFEARN, DELBERT L. TISDALE, JR., MICHAEL McCLELLAND,
TERRY BROWN, REGINALD DEPASS, NATHANIEL MOSS, STEPHEN T GARBER,
DARREN CHAMBERLAND, MATTHEW BRUKBACHER, WILLIAM HUMMEL, DANIEL
SMICK, JASON BUBNA, AUSTIN RUNYON, SAMMIE WICKS, II, JOSHUA
WINTERS, KEVIN DEICHSEL, RYAN SWEENEY, JORDAN O'NEAL, CALEB JOSEPH
PARRELLA, EDWARD L VANCE, NICHOLAS WILSON, MICHAEL BENDER,
KATHERINE LEWIS, DEJON MARSH, ROBERT ROSEN, RONALD
JAUREGUI-GUTIERREZ, HADEN JONSGAARD, MATTHEW GREEN, ETHAN SNOW,
BRIAN McCLURE, SCOTT OSGOOD, RYAN STOLLER, JUAN GONZALEZ, JENNIFER
McCORMACK, NICHOLAS BRUNGARDT, JOSHUA BEBEE, STEVEN BRENNEMAN,
NICHOLAS LESANSKY, MATTHEW CAMPBELL, CORY MANKIN, GRETA SALAZAR,
ROBERT WEATHERSPOON, TYLER TIEGEN, SEAN CONLEY, CHRISTOPHER (SHANE)
PURCELL, LEWIS LITWILER, GREG BRYANT, BEN BULLARD, RYAN McCONNELL,
BRANDON HOLDER, ANTHONY ROSALES, and CARLY SIMMONS, Defendants,
Case No. 20-cv-02172-RM-NYW (D. Colo.).
The Individual Officers from the Aurora Police Department are
Stephen Redfearn, Delbert Tisdale, Michael McClelland, Terry Brown,
Reginald DePass, Nathaniel Moss, Stephen T. Garber, Darren
Chamberland, Matthew Brukbacher, William Hummel, Daniel Smick,
Jason Bubna, Austin Runyon, Sammie Wicks, Joshua Winters, Kevin
Deichsel, Ryan Sweeney, Jordan O'Neal, Caleb Joseph Parrella,
Edward Vance, Nicholas Wilson, Michael Bender, Kathrine Lewis,
Dejon Marsh, Robert Rosen, Ronald Jauregui-Gutierrez, Haden
Jonsgaard, Matthew Green, Ethan Snow, Brian McClure, Scott Osgood,
Ryan Stoller, Juan Gonzalez, Jennifer McCormack, Nicholas
Brungardt, Joshua Bebee, Steven Brenneman, Nicholas Lesansky,
Matthew Campbell, Cory Mankin, and Greta Salazar.
The Individual Officers from the Arapahoe County Sheriff's Office
are Jeanette Rodriguez, Robert Weatherspoon, Tyler Teigen, Sean
Conley, Christopher (Shane) Purcell, Lewis Litwiler, Greg Bryant,
Ben Bullard, Ryan McConnell, and Brandon Holder. The Individual
Officers from the Jefferson County Sheriff's Office are Anthony
Rosales and Carly Simmons.
The presiding judge, the Honorable Raymond P. Moore, referred the
instant Motion to Judge Wang pursuant to 28 U.S.C. Section 636(b).
Plaintiffs Lindsay Minter, Pastor Thomas Mayes, Kristin Mallory,
Tyler Sprague, Alissia Acker, Irma Jolene Fisher, and Tobias Hopp
bring the putative class action against the Defendants for their
alleged violations of the Plaintiffs' state and federal
constitutional rights during a violin vigil their organized and/or
attended in Elijah McClain's memory on June 27, 2020, in Aurora,
Colorado.
Specifically, the Plaintiffs allege that their rights--and the
rights of others similarly situated--were violated as the result of
municipal policies or practices adopted by the City of Aurora
and/or the actions taken by law enforcement personnel on June 27,
2020, after the violin vigil was declared an unlawful assembly and
Defendant Vanessa Wilson, the Interim Police Chief of Aurora,
ordered law enforcement personnel to disperse the crowd that had
gathered. With little warning to vigil attendees, law enforcement
personnel proceeded to undertake crowd dispersal efforts. In so
doing, law enforcement personnel deployed chemical agents, used
non-lethal projectiles, and--in some instances--used batons to
"jab" or "prod" vigil attendees.
Believing the Defendants violated their constitutional and
statutory rights, the Plaintiffs initiated the action by filing a
Complaint on July 23, 2020. On October 12, 2020, they filed an
Amended Complaint as a matter of right, which remains the operative
pleading in this case. Therein, the Plaintiffs assert 10 claims for
relief on behalf of themselves and all others similarly situated,
including five Section 1983 claims for violations of their federal
constitutional rights and five Colorado state law claims.
On January 15, 2021, Defendant Coffman, the Arapahoe and Jefferson
County Defendants ("County Defendants"), and the Aurora Officer
Defendants filed Motions to Dismiss. That same day, Defendants
Wilson and Rodriquez also filed Partial Motions to Dismiss.
The County Defendants, Aurora Officer Defendants, Defendant
Coffman, and Defendant Rodriquez ("Individual Defendants")
move--with one exception--to dismiss the Plaintiffs' federal claims
asserted against them in their individual capacities pursuant to
Federal Rule of Civil Procedure 12(b)(6) for failure to state a
claim, also arguing that they are entitled to qualified immunity.
With the exception of Defendant Coffman, against whom no state law
claims are asserted, the Individual Defendants also seek dismissal
of the Plaintiffs' parallel state law claims (Claims Six through
Ten) against them for failure to state a claim. The County
Defendants also challenge federal subject matter jurisdiction over
the claims asserted against them, arguing that the Plaintiffs lack
standing. The County Defendants are the only Defendants to
expressly move for dismissal pursuant to Federal Rule of Civil
Procedure 12(b)(1). Finally, Defendant Wilson moves to dismiss the
Plaintiffs' state law claims asserted against her, arguing that the
Plaintiffs fail to state a claim because Colo. Rev. Stat. Section
13-21-131 is unconstitutional.
On January 19, 2021, the Individual Law Enforcement Defendants
filed the instant Joint Motion to Stay Discovery and Vacate the
Scheduling Conference. Judge Wang ordered that any responses
thereto be filed by January 22, 2021, and ordered that no replies
be filed absent leave of court. Defendants Coffman, Wilson, and the
City of Aurora ("City Defendants") subsequently filed a Notice of
Joinder to Motion to Stay Discovery, whereby the City Defendants
join the Individual Law Enforcement Defendants' Motion to Stay
("Defendants' Motion to Stay"), and add that "it would be
inefficient, potentially duplicative, and prejudicial to proceed
with discovery as to the City and/or Chief Wilson while the case
against the individuals is stayed."
On January 27, 2021, a Status Conference was held before Judge
Wang, during which the Motion to Stay was taken under advisement
and this Court reset the Scheduling Conference for March 1, 2021.
Shortly thereafter, the Plaintiffs filed a Notice of Supplemental
Authority.
The Defendants offer two reasons for staying discovery pending
resolution of the Individual Defendants' Motions to Dismiss. First,
the Defendants argue that the Court should stay discovery because
the Individual Defendants assert qualified immunity as a defense to
the Plaintiffs' Section 1983 claims against them. Second, they
argue that a stay is warranted under the factors in String Cheese
Incident, LLC v. Stylus Shows, Inc., No. 1:02-cv-01934-LTB-PA, 2006
WL 894955, at *2 (D. Colo. Mar. 30, 2006), as to all of the
Plaintiffs' claims because the Individual Defendants' various
challenges to the Amended Complaint, if successful, may be
dispositive of all of the Plaintiffs' claims against the Individual
Defendants. The Plaintiffs oppose the imposition of a stay in any
form.
Judge Wang notes that in certain instances, courts may grant a stay
of discovery based on the invocation of qualified immunity in a
motion to dismiss, which would act as a complete defense from suit.
Of the Plaintiffs' 10 claims against the Individual Defendants,
the invocation of qualified immunity is dispositive of only five.
Moreover, neither the City of Aurora nor Defendant Wilson in her
official capacity may invokequalified immunity, the Judge opines.
The Court is further mindful that qualified immunity does not apply
to the Plaintiffs' state law claims against the Individual
Defendants. Indeed, as recognized by the U.S. Court of Appeals for
the Tenth Circuit, "Colorado enacted legislation on June 19, 2020,
that created a new cause of action for state constitutional rights
violations by law enforcement.
Thus, even if the Individual Defendants prevail on their qualified
immunity defenses, this does not preclude (a) the parallel state
law claims against the Individual Defendants; (b) the municipal
liability claims against the City of Aurora; or (c) the claims
against Defendant Wilson, depending on the basis for which
qualified immunity is granted, Judge Wang opines, citing Hilton v.
City of Elwood, Kan., 997 F.2d 774, 782 (10th Cir. 1993).
While the Court acknowledges the general policy of staying
discovery upon the invocation of qualified immunity to suit and the
concurrent burdens of discovery, a stay pending the determination
of qualified immunity arises from the principle that officials, who
may be entitled to immunity should be spared the burdens of
discovery, Judge Wang holds. Judge Wang adds, among other things,
that these concerns are somewhat less pressing, however, given that
the Plaintiffs' federal claims against the municipality; state
claims against the Individual Defendants; and all claims against
Defendant Wilson may proceed through discovery notwithstanding the
Individual Defendants' successful invocation of qualified
immunity.
Thus, Judge Wang finds that the invocation of qualified immunity by
the Individual Defendants with regard to their federal claims, in
and of itself, does not warrant a stay of discovery.
The Court turns next to consider whether the String Cheese factors
nevertheless justify a stay.
Upon application of the String Cheese factors to the instant
action, Judge Wang finds that the balance of the factors does not
warrant a stay of discovery.
In sum, the Court finds that String Cheese factors one, two, three,
and five weigh against a stay of discovery, while factor four is
neutral on the issue. On balance, it, thus, concludes that a stay
of discovery is unwarranted.
Accordingly, the Defendants' Joint Motion to Stay is denied.
A full-text copy of the Court's Order dated Feb. 25, 2021, is
available at https://tinyurl.com/3wucaz38 from Leagle.com.
AUSTIN RARE: Sanchez Files ADA Suit in S.D. New York
----------------------------------------------------
A class action lawsuit has been filed against Austin Rare Coins,
Inc. The case is styled as Cristian Sanchez, on behalf of himself
and all others similarly situated v. Austin Rare Coins, Inc., Case
No. 1:21-cv-02290 (S.D.N.Y., March 16, 2021).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Austin Rare Coins & Bullion -- https://www.austincoins.com/ -- is
Austin's coin dealer for rare coins, gold coins, silver coins,
ancient coins, & more.[BN]
The Plaintiff is represented by:
Joseph H. Mizrahi, Esq.
COHEN & MIZRAHI LLP
300 Cadman Plaza West, 12th Floor
Brooklyn, NY 11201
Phone: (929) 575-4175
Fax: (929) 575-4195
Email: joseph@cml.legal
BARGREEN-ELLINGSON INC: Sanchez Files ADA Suit in S.D. New York
---------------------------------------------------------------
A class action lawsuit has been filed against Bargreen-Ellingson,
Inc. The case is styled as Cristian Sanchez, on behalf of himself
and all others similarly situated v. Bargreen-Ellingson, Inc., Case
No. 1:21-cv-02348 (S.D.N.Y., March 17, 2021).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Bargreen -- https://www.bargreen.com/ -- offers a large selection
of restaurant supplies, bar supply and commercial kitchen equipment
at wholesale prices.[BN]
The Plaintiff is represented by:
Joseph H. Mizrahi, Esq.
COHEN & MIZRAHI LLP
300 Cadman Plaza West, 12th Floor
Brooklyn, NY 11201
Phone: (929) 575-4175
Fax: (929) 575-4195
Email: joseph@cml.legal
BENIHANA INC: Court Extends Class Status Bid Filing to March 2022
-----------------------------------------------------------------
In the class action lawsuit captioned as SALVADOR ROSALES, on
behalf of himself, on behalf of others similarly situated and the
general public, v. BENIHANA NATIONAL CORP., BENIHANA, INC., and
DOES 1 through 10, inclusive, Case No. 3:20-cv-03903-LB (N.D.
Calif.), the Hon. Judge Laurel Beeler entered an order that:
1. The deadline for the Parties to complete private ADR,
currently set for May 31, 2021, is extended to July 30,
2021;
2. The deadline to file the Plaintiff's Motion for Class
Certification, currently set for January 24, 2022, is
extended to March 25, 2022;
3. The deadline to file Defendants' Opposition to Plaintiff's
Motion for Class Certification, currently set for March 7,
2022, is extended to May 6, 2022;
4. The deadline to file the Plaintiff's Reply to Defendants'
Opposition to the Plaintiff's Motion for Class
Certification, currently set for March 21, 2022, is
extended to May 20, 2022; and
5. The hearing on the motion, currently set for April 14,
2022, shall be continued June to July 16, 2022.
Benihana operates as a chain of restaurants. The Company offers
steak, chicken, seafood, sushi, and fusion dishes. Benihana serves
customers worldwide.
A copy of the Court's order dated March 8, 2020 is available from
PacerMonitor.com at https://bit.ly/3qXMrSe at no extra charge.[CC]
The Attorneys for the Plaintiff are:
Carlo Garcia Uriarte, Esq.
Un Kei Wu, Esq.
LIBERATION LAW GROUP, P.C.
2760 Mission Street
San Francisco, California 94110
Telephone: (415) 695-1000
Facsimile: (415) 695-1006
E-mail: arlo@liberationlawgroup.com
unkei@liberationlawgroup.com
The Defendants are represented by:
Constance E. Norton, Esq.
Chad D. Greeson, Esq.
LITTLER MENDELSON, P.C.
333 Bush Street, 34th Floor
San Francisco, CA 94104
Telephone: (415) 433-1940
Facsimile: (415) 399-8490
E-mail: cnorton@littler.com
cgreeson@littler.com
BETTERMENT LLC: Sanchez Files ADA Suit in S.D. New York
-------------------------------------------------------
A class action lawsuit has been filed against Betterment LLC. The
case is styled as Cristian Sanchez, on behalf of himself and all
others similarly situated v. Betterment LLC, Case No. 1:21-cv-02356
(S.D.N.Y., March 17, 2021).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Betterment -- https://www.betterment.com/ -- is an American
financial advisory company which provides robo-advising and cash
management services.[BN]
The Plaintiff is represented by:
Joseph H. Mizrahi, Esq.
COHEN & MIZRAHI LLP
300 Cadman Plaza West, 12th Floor
Brooklyn, NY 11201
Phone: (929) 575-4175
Fax: (929) 575-4195
Email: joseph@cml.legal
BITPAY INC: Sanchez Files ADA Suit in S.D. New York
---------------------------------------------------
A class action lawsuit has been filed against BitPay, Inc. The case
is styled as Cristian Sanchez, on behalf of himself and all others
similarly situated v. BitPay, Inc., Case No. 1:21-cv-02282
(S.D.N.Y., March 16, 2021).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
BitPay -- https://bitpay.com/ -- is a bitcoin payment service
provider headquartered in Atlanta, Georgia, United States.[BN]
The Plaintiff is represented by:
Joseph H. Mizrahi, Esq.
COHEN & MIZRAHI LLP
300 Cadman Plaza West, 12th Floor
Brooklyn, NY 11201
Phone: (929) 575-4175
Fax: (929) 575-4195
Email: joseph@cml.legal
BLACKROCK INC: Settlement Reached in Employee 401(k) Plan Suit
--------------------------------------------------------------
BlackRock, Inc. said in its Form 10-K report filed with the U.S.
Securities and Exchange Commission on February 25, 2021, for the
fiscal year ended December 31, 2020, that the parties in the
Employee 401(k) Plan related suit reached a settlement in
principle.
On April 5, 2017, BlackRock, Inc., BlackRock Institutional Trust
Company, N.A. (BTC), the BlackRock, Inc. Retirement Committee and
various sub-committees, and a BlackRock employee were named as
defendants in a purported class action lawsuit brought in the US
District Court for the Northern District of California by a former
employee on behalf of all participants and beneficiaries in the
BlackRock employee 401(k) Plan from April 5, 2011 to the present.
The lawsuit generally alleges that the defendants breached their
duties towards Plan participants in violation of the Employee
Retirement Income Security Act of 1974 by, among other things,
offering investment options that were overly expensive,
underperformed unaffiliated peer funds, focused disproportionately
on active versus passive strategies, and were unduly concentrated
in investment options managed by BlackRock.
On October 18, 2017, the plaintiffs filed an Amended Complaint,
which, among other things, added as defendants certain current and
former members of the BlackRock Retirement and Investment
Committees. The Amended Complaint also included a new purported
class claim on behalf of investors in certain collective trust
funds (CTFs) managed by BTC.
Specifically, the plaintiffs allege that BTC, as fiduciary to the
CTFs, engaged in self-dealing by, most significantly, selecting
itself as the securities lending agent on terms that the plaintiffs
claim were excessive. The Amended Complaint also alleged that
BlackRock took undue risks in its management of securities lending
cash reinvestment vehicles during the financial crisis.
On August 23, 2018, the court granted permission to the plaintiffs
to file a Second Amended Complaint which added as defendants the
BlackRock, Inc. Management Development and Compensation Committee,
the Plan's independent investment consultant and the Plan's
Administrative Committee and its members.
On October 22, 2018, BlackRock filed a motion to dismiss the SAC,
and on June 3, 2019, the plaintiffs filed a motion seeking to
certify both the Plan and the CTF classes. On September 3, 2019,
the court granted BlackRock's motion to dismiss part of the
plaintiffs' claim seeking to recover alleged losses in the
securities lending vehicles but denied the motion to dismiss in all
other respects.
On February 11, 2020, the court denied the plaintiffs' motion to
certify the CTF class and granted their motion to certify the Plan
class. On April 27, 2020, the Ninth Circuit denied the plaintiffs'
request to immediately appeal the class certification ruling. On
September 24, 2020, the parties cross-moved for summary judgment,
both of which were denied on January 12, 2021.
On February 5, 2021, the parties reached a settlement in principle
that will resolve the lawsuit, and are negotiating final terms for
presentation to the court, which must approve the settlement for it
to be effective.
BlackRock, Inc. provides investment management services to
institutional clients and to retail investors through various
investment vehicles. The Company manages funds, as well as offers
risk management services. BlackRock serves governments, companies,
and foundations worldwide. The company is based in New York, New
York.
CHARTER COMMUNICATIONS: Renewed Bid to Certify Class Due April 5
----------------------------------------------------------------
In the class action lawsuit captioned as JENNIFER M. SANSONE, and
BALDEMAR ORDUNO, Jr., Individually and on Behalf of Other Members
of the Public Similarly Situated, v. CHARTER COMMUNICATIONS, INC.;
TWC ADMINISTRATION LLC; CHARTER COMMUNICATIONS, LLC; and DOES 1-25,
inclusive, Case No. 3:17-cv-01880-WQH-JLB (S.D. Calif.), the Hon.
Judge William Q. Hayes entered an order:
1. granting in part and denying in part the motion Regarding
the Court of Appeal's Mandate and Summary Judgment filed
by the Plaintiffs Jennifer M. Sansone and Baldemar Orduno,
Jr., individually and on behalf of other members of the
public similarly situated;
2. granting in part and denying in part the Motion Regarding
Undecided Summary Judgment Issues and Class Certification
filed by the Defendants;
3. directing the Plaintiffs to file a renewed Motion to
Certify Class on or before April 5, 2021;
4. directing the Defendants to file a Response in opposition
to the Plaintiffs' renewed Motion to Certify Class on or
before April 19, 2021;
5. directing the Plaintiffs to file a Reply to their renewed
Motion to Certify Class on or before April 26, 2021.
Charter Communications, Inc., is an American telecommunications and
mass media company with services branded as Charter Spectrum.
A copy of the Court's order dated March 8, 2020 is available from
PacerMonitor.com at https://bit.ly/3cNmYpo at no extra charge.[CC]
CLEARVIEW AI: S. Drury Named Interim Lead Counsel in Consumer Suit
------------------------------------------------------------------
In the case, In re Clearview AI, Inc., Consumer Privacy Litigation,
Case No. 21 C 0135 (N.D. Ill.), Judge Sharon Johnson Coleman of the
U.S. District Court for the Northern District of Illinois, Eastern
Division, appoints Scott R. Drury, Esq., as the sole Interim Lead
Counsel.
The multidistrict litigation involves nine class action lawsuits
brought against Defendant Clearview for improperly scraping
approximately three billion facial images from the internet,
scanning the facial images' biometric identifiers, and selling
access to a searchable database of these images.
Before the Court are two applications for the Plaintiffs' Interim
Lead Counsel brought under Federal Rule of Civil Procedure 23(g),
namely, Scott R. Drury of Loevy & Loevy and Joseph P. Guglielmo of
Scott & Scott.
After reviewing both applications and the numerous memoranda in
support of attorneys Drury and Guglielmo, Judge Coleman opines that
they both possess the knowledge and background in handling class
action lawsuits and have committed substantial resources to their
respective cases. That said, from the outset, Drury has taken the
lead in aggressively moving the litigation forward. Drury's
background and experience in bringing Illinois' Biometric
Information Privacy Act ("BIPA") cases far surpasses Guglielmo's
experience. Drury's superior knowledge of BIPA weighs heavily in
favor of appointing Drury as the Interim Lead Counsel.
Furthermore, according to the Plaintiffs in the consolidated
Northern District of Illinois cases, Drury consistently worked to
collaborate with all the Plaintiffs and Counsel.
After reviewing the various filings and presiding over the Northern
District of Illinois cases, Judge Coleman holds that it is
abundantly clear that Drury will best be able to represent the
interests of all of the class members. Therefore, she appoints
Scott R. Drury of Loevy & Loevy as the Interim Lead Counsel under
Rule 23(g).
A full-text copy of the Court's March 10, 2021 Memorandum Opinion &
Order is available at https://tinyurl.com/wvt3ff99 from
Leagle.com.
CO-DIAGNOSTICS INC: Gelt & Hernandez Consolidated; Gelt Named Lead
------------------------------------------------------------------
In the case, GELT TRADING, LTD., Plaintiff v. CO-DIAGNOSTICS, INC.,
ET AL., Defendants, Case No. 2:20-cv-00368-JNP-DBP (D. Utah), Judge
Jill N. Parrish of the U.S. District Court for the District of Utah
appoints Gelt Trading, Ltd., as the Lead Plaintiff and approves its
selection of counsel.
Co-Diagnostics sells diagnostic tests for several diseases. When
the COVID-19 pandemic began to spread in early 2020, it developed a
test to detect the disease. On Feb. 24, 2020, Co-Diagnostics
announced that it was the first company to receive approval to sell
its COVID-19 diagnostic tests in the European Community. Its stock
rose sharply on this news. On April 6, 2020, Co-Diagnostics
received emergency use authorization for its tests form the U.S.
Food and Drug Administration. The state governments of Iowa,
Nebraska, and Utah purchased tests from Co-Diagnostics for their
public testing campaigns.
On April 30, 2020, The Salt Lake Tribune published an article
questioning the accuracy of the Co-Diagnostics tests. In the
article, Brent Satterfield, Co-Diagnostics' Chief Science Officer,
stated that studies had shown that the tests were between 99.52%
and 100% accurate. On May 1, 2020, Co-Diagnostics issued a press
release claiming that multiple independent evaluations had shown
that its tests were 100% accurate.
On May 14, 2020, Co-Diagnostics notched its highest ever stock
price. But later in the day, news reports were published that
questioned its claims of 100% accuracy. Co-Diagnostics' stock
price declined throughout the day and fell even further when the
market opened on May 15, 2020.
Gelt purchased shares of Co-Diagnostics and lost money when the
stock price fell. On June 15, 2020, it filed a class action
lawsuit against Co-Diagnostics and its officers and directors for
violations of sections 10(b) and 20(a) of the Securities Exchange
Act of 1934. Gelt alleged that the class included all individuals
who purchased Co-Diagnostics stock between Feb. 25, 2020 and May
15, 2020. But Gelt never served the complaint. On June 18, 2020,
Gelt published a notification of the class action lawsuit via a
national newswire. The notification listed the class period of
Feb. 25, 2020 to May 15, 2020 alleged in the complaint.
On July 2, 2020, Fernando Hernandez filed a separate class action
securities fraud lawsuit against Co-Diagnostics and its officers
and directors. The allegations of the complaint were substantially
similar to the allegations of the Gelt complaint. Hernandez also
alleged that the class period was Feb. 25, 2020 to May 15, 2020.
On July 15, 2020, Gelt filed an amended complaint in the action.
The amended complaint shortened the proposed class period to April
30, 2020 through May 14, 2020. It attached to the amended
complaint a sworn certification as required by 15 U.S.C. Section
78u-4(a)(2). The sworn certification averred that the amended
complaint specified all of Gelt's transactions in Co-Diagnostics
securities during the amended class period. Gelt served the
amended complaint on the defendants.
On Aug. 17, 2020, five parties filed motions for appointment as
lead plaintiff in the class action. Two individuals, Tamara Shafer
and Robert Volski, styled themselves as the "Co-Diagnostics
Investor Group" and filed a joint motion to be appointed as co-lead
plaintiffs. The Co-Diagnostics Investor Group alleged that Shafer
lost $64,737.08 and that Volski lost $168,394.32 on stock trades
during the initial class period of Feb. 25, 2020 to May 15, 2020,
for a total combined loss of $233,131.
Tejeswar Tadi moved for appointment as lead plaintiff, alleging
that he lost $152,800 on stock options he purchased on May 14,
2020. Gelt moved for appointment, alleging a net loss of $117,740.
Brian Petros, alleging a loss of $75,400.85 on stock trades, also
moved for appointment. Finally, Stephen Wiley asserted that he had
lost $38,461 and moved to be appointed as lead plaintiff. All the
movants also requested approval of their selections of counsel to
represent the proposed class. The Co-Diagnostics Investor Group,
Petros, and Wiley also moved to consolidate the related Hernandez
action with the instant lawsuit.
Motions to Consolidate
Three of the movants have requested that the Court consolidates the
instant action with Hernandez v. Co-Diagnostics,
2:20-cv-00481-JNP-JCB. The Hernandez complaint alleges the same
essential facts as the amended complaint in the action. Hernandez
asserts that Co-Diagnostics and its officers and directors falsely
claimed that its COVID-19 test was 100% accurate and that investors
lost money when Co-Diagnostics' stock price fell after those claims
were shown not to be true. Thus, the Hernandez action involves the
same questions of law and fact presented in the instant action.
Moreover, the Co-Diagnostics Investor Group and Wiley both notified
Hernandez of their motions to consolidate by filing notices in the
Hernandez action. Hernandez has not opposed the motions to
consolidate, nor has he taken any action to prosecute his separate
action.
Because the requirements of Rule 42(a) are satisfied and because
Hernandez apparently concedes to the consolidation of the two
actions, Judge Parrish grants the motions to consolidate the
Hernandez action with the instant action. The amended complaint
filed on July 15, 2020 in the action will serve as the operative
complaint for the consolidated action.
Motions for Appointment as Lead Plaintiffs
Five parties; the Co-Diagnostics Investor Group, Tadi, Gelt,
Petros, and Wiley; have each moved for appointment as lead
plaintiff in the action. In selecting the lead plaintiff,
therefore, the Court applies the criteria mandated by the Private
Securities Litigation Reform Act of 1995 ("PSLRA") to determine
which party has established an unrebutted presumption of being the
most adequate lead plaintiff.
Judge Parrish holds that Gelt is entitled to the statutory
presumption of being the most appropriate lead plaintiff. She
finds that Gelt has met all the requirements for the statutory
presumption that it would be the most adequate lead plaintiff.
Gelt claims a net loss of $117,740. It also filed the complaint in
the action, and no movant has challenged Gelt's ability to satisfy
Rule 23. The Judge therefore, appoints Gelt as the Lead
Plaintiff.
Because no movant has objected to Gelt's choice of counsel, and the
Judge sees no reason to interfere with its selection, the Judge
approves Smith Washburn, LLP; Marcus Neiman Rashbaum & Pineiro,
LLP; and Fasano Law Firm, PLLC as the Co-Counsel to represent the
class.
In light of the foregoing, Judge Parrish grants Gelt's motion for
appointment as lead plaintiff and for approval of its selection of
counsel.
The Judge grants in part and denies as moot in part Jai's motion
for consolidation of related actions, appointment as lead
plaintiff, and approval of its selection of counsel. She grants
the request to consolidate actions. She denies as moot the
requests for appointment as lead plaintiff and for approval of its
selection of counsel because Jai did not oppose competing motions
for appointment as lead plaintiff.
The Judge grants in part and denies in part Petros' motion for
consolidation of related actions, appointment as lead plaintiff,
and approval of its selection of counsel. She grants the request
to consolidate actions. She denies the requests for appointment as
lead plaintiff and for approval of its selection of counsel.
The Judge also grants in part and denies in part Co-Diagnostics
Investor Group's motion for consolidation of related actions,
appointment as lead plaintiff, and approval of its selection of
counsel. She grants the request to consolidate actions, but denies
the requests for appointment as lead plaintiff and for approval of
its selection of counsel.
The Judge further denies Tadi's motion for appointment as lead
plaintiff and for approval of its selection of counsel.
She grants in part and denies in part Wiley's motion for
consolidation of related actions, appointment as lead plaintiff,
and approval of its selection of counsel. The Judge grants the
request to consolidate actions, but denies the requests for
appointment as lead plaintiff and for approval of its selection of
counsel.
Judge Parrish orders the Clerk of Court to consolidate Hernandez v.
Co-Diagnostics, 2:20-cv-00481-JNP-JCB with the instant action. She
lifts the stay in the action. Gelt will have until April 7, 2021,
to respond to Co-Diagnostics' motion to dismiss.
A full-text copy of the Court's March 10, 2021 Memorandum Decision
& Order is available at https://tinyurl.com/9prkxhb from
Leagle.com.
COLONY INSURANCE: Court Dismisses Skillets Suit With Prejudice
--------------------------------------------------------------
In the case, SKILLETS, LLC d/b/a SKILLETS RESTAURANT, et al.,
Plaintiffs v. COLONY INSURANCE COMPANY, Defendant, Civil Action No.
3:20cv678-HEH (E.D. Va.), Senior District Judge Henry E. Hudson of
the U.S. District Court for the Eastern District of Virginia,
Richmond Division, granted the Defendant's Motion to Dismiss, filed
on Nov. 25, 2020.
The Defendant issued Policy No. 101 CP 0113119-01 to Plaintiffs
Skillets, LLC, Good Breakfast, LLC, and Skillets Holdings, LLC,
covering a policy period of Dec. 28, 2019 to Dec. 28, 2020. Like
the many other property insurance policies addressed by courts in
the United States facing this issue, the Policy is an "all-risk"
policy. All-risk policies provide blanket coverage terms and may
include specific exclusions, as opposed to enumerating every
specific risk covered.
The Defendant's Motion raises for the first time before the Court
an issue relating to the ongoing COVID-19 pandemic that many other
courts around the country have already decided. Skillets operate
nine locations of Skillets Restaurants in Southwest Florida, and,
like most restaurants, were forced to halt in-person dining service
as a result of the pandemic.
Skillets submitted claims to the Defendant on June 22, 2020, and
July 13, 2020, for relief under the Policy from losses incurred due
to the pandemic. On July 17, 2020, the Defendant responded that no
coverage existed under the Policy for Skillets' losses.
Skillets thereafter filed suit in the Court. It filed its Second
Amended Class Action Complaint on Nov. 13, 2020, alleging breach of
contract claims and seeking a declaratory judgment that its losses
are covered under its insurance policy with the Defendant and that
the Defendant therefore must pay for said losses.
Skillets alleges that the pandemic structurally altered and
diminished the functional space in its restaurants, and that Gov.
Ron DeSantis' orders restricting Florida restaurants prohibited its
access to property covered under the Policy. Skillets principally
argues that the phrase "direct physical loss of or damage to
property" does not require actual physical or structural alteration
to apply coverage, but that, even if structural alteration is
required, its allegations that the coronavirus was actually present
in covered property constitute structural alteration. As a result,
Skillets maintains that it suffered lost business income and
incurred extra expenses covered under the Policy.
The Plaintiff also argues that the Policy's lack of virus exclusion
coverage supports its claim for pandemic-related losses, and that
the Complaint sufficiently alleges that Skillets, as well as all
bars and restaurants near Skillets, suffered physical loss or
damage due to the pandemic to warrant coverage under the Policy's
Civil Authority provision.
The Defendant moves to dismiss the Complaint, arguing that Florida
courts have uniformly held that losses incurred by Florida
restaurants as a result of the ongoing pandemic and the related
closure orders do not constitute direct physical loss. Therefore,
Defendant argues that the Court should similarly find that the same
language precludes coverage under the Policy. Finally, it asserts
that the Civil Authority provision does not supplant coverage
because neither Skillets nor any surrounding restaurant suffered a
direct physical loss and access to Skillets restaurants was never
fully prohibited.
Judge Hudson heard oral argument on Feb. 26, 2021. He concludes
that the Complaint fails to allege that COVID-19 or the closure
orders caused Skillets' restaurants any physical harm. The
presence of COVID-19 on restaurant surfaces, even if sufficiently
alleged, does not change, alter, or damage Skillets' property. As
established by the Eleventh Circuit, alterations remedied by normal
cleaning procedures cannot constitute structural alteration
sufficient to trigger coverage for a direct physical loss, citing
Mama Jo's, Inc., 823 F. App'x at 879. Neither does compliance with
the CDC's social distancing guidelines or reducing services to
take-out and delivery constitute direct physical loss.
Though the Judge sympathizes with Skillets and other restaurant
owners around the country who have suffered greatly from reduced
demand due to the pandemic, he opines that Skillets fails to
distinguish itself from the current precedent denying its requested
coverage. Finding that no coverage exists under the Policy for
Skillets' alleged losses, the Judge granted the Defendant's Motion
to Dismiss. He further finds that any amendment would be futile
based on the facts and circumstances of the case. Therefore, he
dismissed Skillets' Complaint with prejudice.
An appropriate Order will accompany the Memorandum Opinion.
A full-text copy of the Court's March 10, 2021 Memorandum Opinion
is available at https://tinyurl.com/3s9my6ms from Leagle.com.
COLONY INSURANCE: Skillets Appeals Case Dismissal Ruling to 4th Cir
-------------------------------------------------------------------
Plaintiffs Skillets, LLC, et al., filed an appeal from a court
ruling entered in the lawsuit entitled Skillets, LLC v. Colony
Insurance Company, Case No. 3:20-cv-00678-HEH, in the United States
District Court for the Eastern District of Virginia at Richmond.
The Plaintiffs Skillets, LLC, Good Breakfast, LLC, and Skillets
Holdings, LLC operate nine locations of Skillets Restaurants in
Southwest Florida, and, like most restaurants, were forced to halt
in-person dining service as a result of the pandemic. Skillets
filed suit in this Court after its insurer, Defendant, denied its
reimbursement request for pandemic-related losses. Skillets filed
its Second Amended Class Action Complaint on November 13, 2020,
alleging breach of contract claims and seeking a declaratory
judgment that its losses are covered under its insurance policy
with Defendant and that Defendant therefore must pay for said
losses.
The Plaintiffs are seeking a review of the Court's Order March 10,
2021, granting Defendant's motion to dismiss the case and
dismissing Plaintiffs' second amended class action complaint with
prejudice.
The appellate case is captioned as Skillets, LLC v. Colony
Insurance Company, Case No. 21-1268, in the United States Court of
Appeals for the Fourth Circuit, March 11, 2021.[BN]
Plaintiffs-Appellants SKILLETS, LLC, individually and on behalf of
all others similarly situated, doing business as Skillets
Restaurant; GOOD BREAKFAST, LLC, d/b/a Skillets Restaurant; and
SKILLETS HOLDINGS, LLC are represented by:
Kenneth Abbarno, Esq.
DICELLO LEVITT & CASEY
7556 Mentor Avenue
Western Reserve Law Building
Mentor, OH 44060
Telephone: (440) 953-8888
E-mail: kabbarno@dicellolevitt.com
- and -
Lisa Sarah Brook, Esq.
Edward Kyle McNew, Esq.
MICHIEHAMLETT, PLLC
310 4th Street, NE
Charlottesville, VA 22902-0298
Telephone: (434) 951-7200
E-mail: lbrook@michiehamlett.com
kmcnew@michiehamlett.com
- and -
Timothy W. Burns, Esq.
BURNS BOWEN BAIR LLP
1 South Pinckney Street
Madison, WI 53703
Telephone: (608) 286-2808
E-mail: tburns@bbblawllp.com
- and -
Adam J. Levitt, Esq.
DICELLO LEVITT GUTZLER LLC
10 North Dearborn Street
Chicago, IL 60602
Telephone: (312) 214-7900
E-mail: alevitt@dicellolevitt.com
Defendant-Appellee COLONY INSURANCE COMPANY is represented by:
Gary W. Berdeen, Esq.
STEWART SMITH
1 Park West Circle
Midlothian, VA 23114
Telephone: (804) 533-1717
E-mail: gberdeen@stewartsmithlaw.com
- and -
William F. Stewart, Esq.
STEWART SMITH
300 Conshohocken State Road
West Conshohocken, PA 19428
Telephone: (484) 344-5320
E-mail: wstewart@stewartsmithlaw.com
CORECIVIC INC: Seeks 9th Cir. Review of Class Cert. Ruling in Owino
-------------------------------------------------------------------
Defendant CoreCivic, Inc. filed an appeal from a court ruling
entered in the lawsuit entitled SYLVESTER OWINO and JONATHAN GOMEZ,
on behalf of themselves and all others similarly situated, v.
CORECIVIC, INC., a Maryland corporation, Case No.
3:17-cv-01112-JLS-NLS, in the U.S. District Court for the Southern
District of California, San Diego.
As previously reported in the Class Action Reporter, the lawsuit
seeks declaratory, equitable and injunctive relief, restitution,
treble and punitive damages, disgorgement of unjustly acquired
revenue, profits and other benefits resulting from Defendant's
unlawful conduct, reasonable litigation expenses and attorneys'
fees, pre- and post-judgment interest, and such other and further
relief resulting from negligence, unjust enrichment and violation
of the Trafficking Victims Protection Act, Unfair Competition Law
of the California Business and Professions Code, California Labor
Code and applicable Industrial Welfare Commission Orders.
Plaintiffs are former civil immigration detainees who were
incarcerated and forced to work for $1 per day by CoreCivic, a
for-profit corporation engaged in the business of owning and
operating detention facilities and prisons.
The Defendant seeks a review of the District Court's April 1, 2020
order granting class action certification and January 13, 2021
order denying reconsideration.
The appellate case is captioned as Sylvester Owino, et al. v.
CoreCivic, Inc., Case No. 21-55221, in the United States Court of
Appeals for the Ninth Circuit, March 10, 2021.
The briefing schedule in the Appellate Case states that:
-- Appellant CoreCivic, Inc. Mediation Questionnaire was due on
March 17, 2021;
-- Transcript shall be ordered by April 9, 2021;
-- Transcript is due on May 10, 2021;
-- Appellant CoreCivic, Inc. opening brief is due on June 18,
2021;
-- Appellees Jonathan Gomez and Sylvester Owino answering brief
is due on July 19, 2021; and
-- Appellant's optional reply brief is due 21 days after service
of the answering brief.[BN]
Plaintiffs-Appellees SYLVESTER OWINO and JONATHAN GOMEZ, on behalf
of themselves, and all others similarly situated, are represented
by:
Alan R. Ouellette, Esq.
Eileen R. Ridley, Esq.
FOLEY & LARDNER LLP
555 California Street, Suite 1700
San Francisco, CA 94104-1520
Telephone: (415) 434-4484
E-mail: aouellette@foley.com
eridley@foley.com
Defendant-Appellant CORECIVIC, INC., a Maryland corporation, is
represented by:
Nicholas D. Acedo, Esq.
Jacob Brady Lee, Esq.
Rachel Love, Esq.
Daniel Patrick Struck, Esq.
STRUCK LOVE BOJANOWSKI & ACEDO PLC
3100 W. Ray Road, Suite 300
Chandler, AZ 85226
Telephone: (480) 420-1600
E-mail: nacedo@strucklove.com
jlee@strucklove.com
rlove@strucklove.com
dstruck@strucklove.com
COVINGTON SPECIALTY: MSPA CLAIMS Seeks Rule 23 Class Certification
------------------------------------------------------------------
In the class action lawsuit captioned as MSPA CLAIMS 1, LLC, a
Florida limited liability company, v. COVINGTON SPECIALTY INSURANCE
COMPANY, a foreign profit corporation, Case No. 1:19-cv-21583-KMW
(S.D. Fla.), the Plaintiff asks the Court to enter an order
granting its motion for Class Certification pursuant to Rule
23(b)(3):
-- Contractual Obligation Class
"All Medicare Advantage Plans and downstream actors (or
their assignees) that have borne the cost of a conditional
payment in providing benefits under Medicare Part C, in
the United States of America and its territories, who bore
the expense of a Medicare Enrollee's medical items and
services within the last six years from the filing of the
complaint where Defendant:
(1) is the primary payer by virtue of having a contractual
obligation to pay for the items and services that are
required to be covered by the policy of insurance of
the same Medicare Enrollees; and
(2) failed to pay for the items and services or otherwise
failed to reimburse Medicare Advantage Plans and
downstream actors (or their assignees) for the items
and services that were provided related to the claims
of the Medicare Enrollees";
This class definition excludes (a) the Defendant, its
officers, directors, management, employees, subsidiaries,
and affiliates; and (b) any judges or justices involved in
this action and any members of their immediate families.
-- The Settlement Class
"All Medicare Advantage Plans and downstream actors (or
their assignees) that have borne the cost of a conditional
payment in providing benefits under Medicare Part C, in
the United States of America and its territories, who made
payments for a Medicare Enrollee’s medical expenses where
Defendant:
(1) is the primary payer by virtue of having settled a
claim with a Medicare Advantage Plan Enrollee;
(2) settled a dispute to pay for medical expenses with a
Medicare Advantage Plan Enrollee; and
(3) failed to reimburse Medicare Advantage Plans and
downstream actors (or their assignees) for their
conditional payments upon settling with a Medicare
Enrollee."
This class definition excludes (a) the Defendant, its officers,
directors, management, employees, subsidiaries, and affiliates; and
(b) any judges or justices involved in this action and any members
of their immediate families.
Covington Specialty is a liability insurer that is responsible to
either pay the medical expenses of Medicare beneficiaries before
Medicare Advantage Organization class members pay anything or, if
the putative class members pay first for any reason, the Defendant
must reimburse them.
A copy of the Plaintiff's motion to certify class dated March 8,
2020 is available from PacerMonitor.com at https://bit.ly/3eSqBx4
at no extra charge.[CC]
The Plaintiff is represented by:
Steve I. Silverman, Esq.
Micayla Mancuso, Esq.
KLUGER, KAPLAN, SILVERMAN,
KATZEN & LEVINE, P.L.
CitiGroup Center, 27th Floor
201 South Biscayne Boulevard
Miami, FL 33131
Telephone: (305) 379 9000
Facsimile: (305) 379 3428
E-mail: ssilverman@klugerkaplan.com
mmancuso@klugerkaplan.com
- and -
John H. Ruiz, Esq.
Frank C. Quesada, Esq.
Shayna K. Hudson
MSP RECOVERY LAW FIRM
2701 Le Jeune Road, 10th Floor
Coral Gables, FL 33134
Telephone: (305) 614-2222
Facsimile: (866) 582-0907
E-mail: jruiz@msprecoverylawfirm.com
serve@msprecoverylawfirm.com
fquesada@msprecoverylawfirm.com
shudson@msprecoverylawfirm.com
DCP MIDSTREAM: Whitman Seeks to Certify Day Rate Inspector Class
----------------------------------------------------------------
In the class action lawsuit captioned as JOEL WHITMAN, individually
and on behalf of all others similarly situated, v. DCP MIDSTREAM,
LLC, Case No. 1:20-cv-03352-RBJ (D. Colo.), the Plaintiff asks the
Court to enter an order granting conditional certification of and
authorize notice be sent to:
"Current and former inspectors employed by, or performing
work on behalf of, DCP Midstream, LLC and paid a day-rate
without overtime during the past three years.
To facilitate the Court-approved notice, Whitman further
asks the Court to:
(1) approve the Notice and Consent forms;
(2) authorize his proposed notice methods;
(3) order DCP to produce each Day Rate Inspector's contact
information to his Counsel within 10 days; and
(4) authorize a 60-day notice period for the Day Rate
Inspectors to join the case.
The Plaintiff alleges that he and the Day Rate Inspectors worked as
inspectors throughout the limitations period. DCP required these
inspectors to work well in excess of 40 hours per week.
Nevertheless, DCP pays a day rate with no weekly guarantee of days
or hours worked and no overtime pay, he adds.
DCP Midstream, LLC operates as an energy company. The Company
specializes in gathering, processing, compressing, transporting,
and storing natural gas.
A copy of the Plaintiff's motion to certify class dated March 5,
2020 is available from PacerMonitor.com at http://bit.ly/2OEXiTSat
no extra charge.[CC]
The Plaintiff is represented by:
Michael A. Josephson, Esq.
Andrew W. Dunlap, Esq.
William R. Liles, Esq.
JOSEPHSON DUNLAP LAW FIRM
11 Greenway Plaza, Suite 3050
Houston, TX 77046
Telephone: (713) 352-1100
Facsimile: (713) 352-3300
E-mail: mjosephson@mybackwages.com
adunlap@mybackwages.com
wliles@mybackwages.com
- and -
Richard J. (Rex) Burch, Esq.
BRUCKNER BURCH, P.L.L.C.
8 Greenway Plaza, Suite 1500
Houston, TX 77046
Telephone: (713) 877-8788
Facsimile: (713) 877-8065
E-mail: rburch@brucknerburch.com
DELAWARE NORTH: Morand-Doxzon Appeals Remand Bid Denial to 9th Cir.
-------------------------------------------------------------------
Plaintiff Melissa Morand-Doxzon filed an appeal from a court ruling
entered in the lawsuit entitled MELISSA MORAND-DOXZON, on behalf of
herself, all others similarly situated, and on behalf of the
general public v. DELAWARE NORTH COMPANIES SPORTSERVICE, INC.;
CALIFORNIA SPORTSERVICE, INC.; AND DOES 1-100, Case No.
3:20-cv-01258-DMS-BLM, in the U.S. District Court for the Southern
District of California, San Diego.
As previously reported in the Class Action Reporter, the lawsuit
was removed from the Superior Court of the State of California for
the County of San Diego to the U.S. District Court for the Southern
District of California on July 6, 2020.
The Southern District of California Court Clerk assigned Case No.
3:20-cv-01258-DMS-BLM to the proceeding.
The Plaintiff asserts claims for failure to pay all straight time
wages; failure to pay all overtime wages; failure to provide meal
periods; failure to authorize and permit rest periods; and failure
to provide suitable resting facilities for meal or rest periods,
all in violation of the Labor Code Private Attorneys General Act of
2004.
Ms. Morand-Doxzon seeks a review the Court's Order dated March 4,
2021, denying her motion to remand.
The appellate case is captioned as Melissa Morand-Doxzon v.
Delaware North Companies Sport, et al., Case No. 21-80015, in the
United States Court of Appeals for the Ninth Circuit, March 12,
2021.[BN]
Plaintiff-Petitioner MELISSA MORAND-DOXZON, on behalf of herself,
all others similarly situated, and on behalf of the general public,
is represented by:
David Mara, Esq.
Jill Marie Vecchi, Esq.
MARA LAW FIRM PC
2650 Camino Del Rio North, Suite 205
San Diego, CA 92108
Telephone: (619) 234-2833
E-mail: dmara@maralawfirm.com
jvecchi@maralawfirm.com
Defendants-Respondents DELAWARE NORTH COMPANIES SPORTSERVICE, INC.
and CALIFORNIA SPORTSERVICE, INC. are represented by:
Jonathan L. Brophy, Esq.
Jon D. Meer, Esq.
Bethany Pelliconi, Esq.
SEYFARTH SHAW, LLP
2029 Century Park East, Suite 3500
Los Angeles, CA 90067-3021
Telephone: (310) 201-1532
E-mail: jbrophy@seyfarth.com
jmeer@seyfarth.com
bpelliconi@seyfarth.com
DENNY'S INC: Bids for Judgment and to Dismiss Wintjen Suit Denied
-----------------------------------------------------------------
In the lawsuit captioned JULI WINTJEN, Plaintiff v. DENNY'S, INC.,
DOE DEFENDANTS 1-10, Defendants, Case No. 2:19-CV-00069-CCW (W.D.
Pa.), the U.S. District Court for the Western District of
Pennsylvania (i) denied in full the Defendant's Motion for Partial
Summary Judgment and Motion to Dismiss, and (ii) granted in part
and denied in part the Plaintiff's Motion for Partial Summary
Judgment.
In the hybrid class/collective action, the Plaintiff claims, on
behalf of herself and other individuals employed by the Defendant
in a tipped capacity (namely servers, waiters and waitresses), that
the Defendant violated its minimum wage obligations.
The Plaintiff filed her Complaint on January 22, 2019. In Count I,
the Plaintiff alleges that the Defendant's policies and practices
violated the Fair Labor Standards Act ("FLSA") in two ways: (1) the
Defendant failed to properly notify its tipped employees that it
would claim a tip credit and pay them sub-minimum wage; and (2) the
Defendant paid its tipped employees sub-minimum wage while
requiring them to perform significant amounts of non-tip-generating
"side-work." In Count II, the Plaintiff asserts that those same
policies and practices violated similar provisions of the
Pennsylvania Minimum Wage Act ("PMWA").
Pursuant to the operative Second Case Management Order issued by
then-presiding Judge J. Nicholas Ranjan, the first phase of
discovery closed on April 6, 2020, and the Court indicated that it
would rule on motions for summary judgment before considering any
motion for class certification or certification of an FLSA
collective. As such, no motion for certification of a class under
Federal Rule of Civil Procedure 23 or for conditional certification
of an FLSA collective has yet been filed.
On July 6, 2020, the Plaintiff filed her Motion for Partial Summary
Judgment and the Defendant filed its Motion for Partial Summary
Judgment and Motion to Dismiss. The case was transferred to the
undersigned on October 23, 2020.
In her Motion, the Plaintiff seeks summary judgment on both Count I
and Count II as to whether the Defendant "(i) complied with the
'tip credit' exception" to the FLSA and PMWA, and whether Defendant
"(ii) kept proper records of the time worked by its servers as
required by the FLSA and PMWA."
The Defendant seeks summary judgment in its favor on the
Plaintiff's FLSA claims (Count I) and dismissal, without prejudice,
of the Plaintiff's PMWA claims (Count II) pursuant to 28 U.S.C.
Section 1367.
The "one-way intervention rule" provides that, in a putative class
action brought pursuant to Federal Rule of Civil Procedure 23, such
as the Plaintiff's PMWA claims in Count II of the Complaint, "it is
'unfair to allow members of a class to benefit from a favorable
judgment without subjecting themselves to the binding effect of an
unfavorable one.'" The Defendants argue that, in light of the
one-way intervention rule, the Court should defer ruling on the
Plaintiff's Motion to the extent she seeks summary judgment on
behalf of the as-yet-uncertified PMWA class (Count II of the
Complaint).
With respect to the putative PMWA class, the Plaintiff is seeking
summary judgment "against Denny's for all servers up to the date
Denny's is capable of proving a server received a copy of the
January 2019 Tip Notification Form." As such, the one-way
intervention rule is implicated: no class has been certified yet
and a ruling on summary judgment in the Plaintiff's favor would be
binding on the Defendant as to all absent class members, whereas a
ruling in the Defendant's favor would not bind the absent class
members, Judge Wiegand finds. And, although the Plaintiff is
correct that the Court made clear its intention to rule on summary
judgment motions before ruling on class certification, there is no
indication that the Defendant affirmatively waived the protection
of the one-way intervention rule.
Therefore, in light of the one-way intervention rule, the Court
will deny, without prejudice, the Plaintiff's Motion for Partial
Summary Judgment to the extent she seeks summary judgment on the
claims asserted on behalf of the putative PMWA class in Count II of
the Complaint.
The FLSA requires employers to pay employees a minimum hourly wage
for hours worked in a workweek, unless an exception applies. One
such exception to the minimum wage requirement, the tip credit
exception, permits employers to pay an employee "engaged in an
occupation in which [she] customarily and regularly receives more
than $30 a month in tips," 29 U.S.C. Section 203(t), less than the
federally mandated minimum wage if the employees' wages and tips,
added together, meet or exceed the required minimum wage. However,
an employer may not avail itself of the tip credit exception unless
it first provides notice as required by the statute, Judge Wiegand
notes.
In the case, the parties disagree about what information an
employer must provide to comply with Section 203(m)'s notice
requirement. Judge Wiegand finds that there is no evidence before
the Court that tip credit notice would have been provided in
writing or communicated verbally to any member of the putative FLSA
collective. Both parties here have moved for summary judgment on
the sufficiency of the Defendant's tip credit notice with respect
to Count I of the Complaint.
Judge Wiegand opines that the Defendant's Motion on this issue will
be denied because it has not carried its burden to show that there
is no genuine issue of material fact such that it provided the
Plaintiff with a complete tip credit notice. On the other hand, the
Plaintiff's Motion, to the extent she seeks judgment on her FLSA
tip credit notice claim in Count I, will be granted because,
viewing the facts in the light most favorable to the Defendant, the
non-movant, the Court finds that there is no genuine issue of
material fact that the Defendant failed to fully comply with the
tip credit notice requirement and, thus, no tip credit can be taken
and [Defendant] is liable for the full minimum-wage."
In its Motion, the Defendant argues that the Plaintiff "lacks
Article III standing to pursue her claim" that the Defendant's
"tip-credit notice was sufficient as she [has] not suffered any
concrete injury fairly traceable to the alleged deficient notice."
The Court concludes that the Plaintiff has standing to pursue her
tip credit notice claim, and that the Defendant's tip credit notice
was deficient. Accordingly, the Plaintiff's Motion for Summary
Judgment is granted with respect to her claim that the Defendant's
tip credit notice was deficient under the FLSA.
In addition to alleging that the Defendant violated its minimum
wage obligations under the FLSA by failing to provide compliant tip
credit notice, the Plaintiff also claims in Count I of the
Complaint that Defendant further violated the FLSA by requiring its
tipped employees to perform substantial amounts of
non-tip-generating "side-work" while continuing to pay those
employees a sub-minimum cash wage.
With respect to the Defendant's Motion, viewing the record as a
whole and considering the facts in the light most favorable to the
Plaintiff, the Court concludes that a reasonable jury could find
for the Plaintiff on her FLSA Dual Jobs claim in Count I. The
Plaintiff's testimony regarding the nature and extent of the
side-work she typically performed while clocked in under the
"Server" job code is sufficient to create a genuine issue of fact
as to whether that side-work accounted for more than 20% of the
time she was paid a sub-minimum wage, Judge Wiegand explains. As
such, the Defendant's Motion, to the extent it seeks judgment on
Count I of the Complaint regarding the Plaintiff's Dual Jobs claim,
will be denied.
With respect to the Plaintiff's Motion, on the other hand, and
viewing the facts in the light most favorable to the Defendant, the
Court finds that the Defendant required its tipped employees to
perform non-tip-generating side-work but did not maintain records
or track the time those employees spent performing such side-work
when those employees were clocked in under the "Server" (i.e.
sub-minimum wage) job code. Thus, there is no genuine issue of
material fact. Therefore, the Plaintiff's Motion will be granted
with respect to the portion of Count I of the Complaint alleging
that Defendant "failed to keep proper records of the time worked by
its servers as required by the FLSA."
Finally, because the Court will deny the Defendant's Motion for
Partial Summary Judgment on Plaintiff's FLSA claims, it will also
reject the Defendant's invitation to "decline to exercise
jurisdiction over the Plaintiff's PMWA claims under 28 U.S.C.
Section 1367."
For these reasons, the Plaintiff's Motion for Partial Summary
Judgment is granted in part and denied in part. With respect to
Count I of the Complaint, the Plaintiff's Motion for Summary
Judgment is granted with respect to (1) her claim that the
Defendant's tip credit notice was deficient under the FLSA, and (2)
her claim that the Defendant failed to keep proper records of the
time worked by its servers under the FLSA.
The Plaintiff's Motion for Summary Judgment on the PMWA claims
contained in Count II of the Complaint, however, is denied without
prejudice, pending certification of a class under Rule 23 of the
Federal Rules of Civil Procedure.
The Defendant's Motion for Partial Summary Judgment and Motion to
Dismiss are denied in full.
A full-text copy of the Court's Opinion dated Feb. 25, 2021, is
available at https://tinyurl.com/mv8h6j8k from Leagle.com.
DENTSU MCGARRY: Dharni Files Suit in Cal. Super. Ct.
----------------------------------------------------
A class action lawsuit has been filed against DENTSU MCGARRY BOWEN
L.L.C., et al. The case is styled as Justine K. Dharni, an
individual, on behalf of herself and all others similarly situated
v. DENTSU MCGARRY BOWEN L.L.C., A NEW YORK LIMITED LIABILITY
COMPANY; LINDHOLM, RYAN, AN INDIVIDUAL; DOES 1 THROUGH 25,
INCLUSIVE; Case No. CGC21590170 (Cal. Super. Ct., San Francisco
Cty., March 16, 2021).
The case type is stated as "OTHER NON EXEMPT COMPLAINTS."
Dentsu Mcgarry Bowen LLC -- https://dentsumb.com/ -- operates as an
advertising agency. The Company offers brand and business strategy,
channel integration, brand voice activation, communications
planning, and market segmentation services.[BN]
The Plaintiff is represented by:
Keia J. Atkinson, Esq.
FINKELSTEIN & KRINSK LLP
501 W Broadway, Ste. 1260
San Diego, CA 92101-8564
Phone Number: (619) 238-1333
Email: kja@classactionlaw.com
DRUG ABUSE FOUNDATION: Plowden Seeks to Certify Therapist Class
---------------------------------------------------------------
In the class action lawsuit captioned as BERNITA PLOWDEN, and all
others similarly situated, v. DRUG ABUSE FOUNDATION OF PALM BEACH
COUNTY, INC., Case No. 9:21-cv-80290-AHS (S.D. Fla.), the Plaintiff
asks the Court to enter an order conditionally certifying a class
of similarly situated individuals and allowing court-authorized
notice of this action to be sent out to those individuals,
informing them of their right to opt-in to this case under the Fair
Labor Standards Act (FLSA).
The Proposed Class is as follows:
"All individuals who 1) worked for DAF as a therapist between
February 8, 2018 and the present, 2) worked over 40 hours in
any work week, and 3) did not receive full overtime pay
due to Defendant's unlawful pay practices."
The Defendant provides substance abuse prevention, intervention,
and mental health treatment services within the Southern District
of Florida to individuals battling addiction. In order to provide
these services, the Defendant employs therapists at its principal
location of 400 South Swinton Ave., Delray Beach, Florida. The
therapists work regularly with patients undergoing treatment, and
are essential and integral to Defendant’s operation. The
Defendant's therapists were responsible for completing assignments
including but not limited to the following: assessing
patients/clients, documenting weekly reports on patients/clients,
and holding weekly therapy sessions.
Further, the therapists were required to enter and submit these
assignments on a timely basis through the Defendant's electronic
computer system. The therapists were paid an hourly rate, which was
intended to cover 40 hours of work per week. However, due to the
nature of their job assignments and deadlines, the therapists
regularly worked over 40 hours per week during their employment.
Yet the Defendant failed to pay proper overtime wages to the
therapists for these hours worked.
A copy of the Plaintiff's motion to certify class dated March 5,
2020 is available from PacerMonitor.com at https://bit.ly/3cEm2Up
at no extra charge.[CC]
The Plaintiff is represented by
Jordan Richards, Esq.
Melissa Scott, Esq.
USA EMPLOYMENT LAWYERS -
JORDAN RICHARDS, PLLC
805 E. Broward Blvd. Suite 301
Fort Lauderdale, FL 33301
Telephone: (954) 871-0050
E-mail: jordan@jordanrichardspllc.com
melissa@jordanrichardspllc.com
jake@jordanrichardspllc.com
EBIX INC: Bid to Be Named Lead Plaintiffs in Teifke Due April 23
----------------------------------------------------------------
In the lawsuit entitled CHRISTINE MARIE TEIFKE, individually and on
behalf of all others similarly situated, Plaintiff v. EBIX, INC.,
et al., Defendants, Case No. 21-CV-1589 (JMF) (S.D.N.Y.), the U.S.
District Court for the Southern District of New York ruled that
members of the purported class will have until April 23, 2021, to
move the Court to serve as lead plaintiffs.
On February 22, 2021, the Plaintiff filed a class action lawsuit on
behalf of all persons and entities that purchased or otherwise
acquired Ebix, Inc. securities between November 9, 2020, and
February 19, 2021, inclusive, and who were damaged thereby,
excluding the Defendants, the officers and directors of Ebix, at
all relevant times, members of their immediate families and their
legal representatives, heirs, successors, or assigns, and any
entity in which Defendants have or had a controlling interest. The
complaint alleges violations of Sections 10(b) and 20(a) of the
Securities Exchange Act of 1934 and Rule 10b-5, promulgated
thereunder.
As explained in the Court's February 23, 2021 Order, Section
78u-4(a)(3)(A) of the Private Securities Litigation Reform Act
("PSLRA"), 15 U.S.C. Section 78u-4(a)(3)(A), requires that within
20 days of the filing of the complaint, the Plaintiff will "cause
to be published, in a widely circulated national business-oriented
publication or wire service, a notice advising members of the
purported plaintiff class of the pendency of the action, the claims
asserted therein, and the purported class period." The PSLRA also
provides that "not later than 60 days after the date on which the
notice is published, any member of the purported class may move the
court to serve as lead plaintiff of the purported class."
In addition, the Act requires that not later than 90 days after the
date on which notice is published, the Court will consider any
motion made by a purported class member in response to the notice,
and will appoint as lead plaintiff the member or members of the
purported plaintiff class that the Court determines to be most
capable of adequately representing the interests of class members.
In the event that more than one action on behalf of a class
asserting substantially the same claim or claims has been filed,
and any party has sought to consolidate those actions for pretrial
purposes or for trial, the Court will not appoint a lead plaintiff
until after a decision on the motion to consolidate is rendered.
The Plaintiff's counsel notified the Court that the required notice
was published on February 22, 2021. Members of the purported class,
therefore, have until April 23, 2021, to move the Court to serve as
lead plaintiffs.
It is further ordered that opposition to any motion for appointment
of lead plaintiff will be served and filed by May 7, 2021.
Finally, it is ordered that a conference will be held on May 13,
2021, at 12:00 p.m., to consider any motions for appointment of
lead plaintiff and lead counsel and for consolidation.
If an amended complaint or a related case is filed prior to
appointment of a lead plaintiff, the Plaintiff's counsel will,
within one week, submit a letter to the Court identifying any
differences between the allegations in the new complaint(s) and the
allegations in the original complaint (including any differences in
the claims asserted and the relevant class periods) and showing
cause why the Court should not order republication of notice under
the PSLRA and set a new deadline for the filing of motions for
appointment.
It is further ordered that the Named Plaintiffs will promptly serve
a copy of the Order on each of the Defendants.
A full-text copy of the Court's Order dated Feb. 25, 2021, is
available at https://tinyurl.com/sc5hdwvh from Leagle.com.
ELAVON INC: Court Junks Bid to Dismiss Fabricant Class Suit
-----------------------------------------------------------
In the class action lawsuit captioned as Terry Fabricant v. Elavon,
Inc. and 7231911 Canada Inc., Case No. 2:20-cv-02960-SVW-MAA (C.D.
Calif.), the Hon. Judge Stephen V. Wilson entered an order denying
motion to dismiss and directing the plaintiff to move for class
certification.
The Court said, "The Defendant failed to provide sufficient
evidence to demonstrate that Canada is an adequate alternative
forum that would be able to address Plaintiff's claim. Because the
Court finds that the Defendant failed to meet its burden on the
first prong, the Court need not address the balance of public and
private factors."
Plaintiff Fabricant filed an amended complaint in this lawsuit on
September 8, 2020 against the Defendant 7231911 Canada. The
Defendant filed a motion to dismiss for forum non conveniens on
November 16, 2020.
The Plaintiff, an individual residing in California, alleges that
he received an automated telemarketing call from Digitech on
February 12, 2020. He asserts that the system that sent the call to
Plaintiff qualifies as an automatic telephone dialing system (ATDS)
under the Telephone Consumer Protection Act of 1991 (TCPA). The
Plaintiff alleges that he did not consent to receive calls from
Digitech and that the call he received on February 12 was not made
for emergency purposes, he adds.
Elavon is a processor of credit card transactions and a subsidiary
of U.S. Bancorp. Elavon offers merchant processing in more than 30
countries and supports the payment needs of more than 1,000,000
merchant locations across the globe.
A copy of the Civil Minutes -- General dated March 8, 2020 is
available from PacerMonitor.com at https://bit.ly/3vBDmSG at no
extra charge.[CC]
ENCORE CAPITAL: Class Status Bid Filing Due August 30
-----------------------------------------------------
In the class action lawsuit captioned as LLOYD WILLIAMS, on behalf
of himself and all others similarly situated, v. ENCORE CAPITAL
GROUP, INC., MIDLAND CREDIT MANAGEMENT, INC., AND MIDLAND FUNDING
LLC, Case No. 2:19-cv-05252-JMG (E.D. Pa.), the Hon. Judge John M.
Gallagher entered a scheduling order as follows:
1. A status conference with counsel is scheduled for June 3,
2021 at 10:00 a.m. The Plaintiff's counsel shall provide
the Court and opposing counsel with conference bridge
details (such as a telephone number and access code) no
later than, Monday, May 24, 2021.
2. All fact and expert discovery shall be completed no later
than June 29, 2021.
3. The deadline to disclose any expert who will offer opinion
testimony on an issue as to which the offering Party bears
the burden of proof is May 14, 2021.
4. The deadline to disclose any expert who will offer opinion
testimony on an issue as to which the offering party does
not bear the burden of proof is May 31, 2021.
5. Expert reports, if any, are due by June 1, 2021.
6. Rebuttal expert reports, if any, are due by June 15, 2021.
7. Expert depositions shall be completed no later than June
29, 2021.
8. The deadline for to move for class certification is August
30, 2021.
9. The deadline to file any opposition to class certification
is October 14, 2021.
10. The deadline to reply to any opposition to class
certification is November 15, 2021.
11. The Court shall schedule a hearing on class certification
following the close of the briefing deadlines.
12. The Parties may file motions for summary judgment as to
Defendants' liability concurrently with Plaintiff's Motion
for class certification.
13. The Parties shall submit a proposed scheduling order for
further proceedings, to include class notice, dispositive
motions, and trial date, following the disposition of the
motion for class certification.
Encore Capital is a global specialty finance company with
operations and investments across North America, Europe, Asia and
Latin America. Established in 1953, Midland Credit, a wholly-owned
subsidiary of Encore Capital Group, Inc., is a specialty finance
company.
A copy of the Court's order dated March 8, 2020 is available from
PacerMonitor.com at https://bit.ly/3rY3ViH at no extra charge.[CC]
EXECUPHARM INC: Clemens Lacks Standing to Bring Claims, Court Says
------------------------------------------------------------------
In the lawsuit styled JENNIFER CLEMENS, individually and on behalf
of all others similarly situated, Plaintiff v. EXECUPHARM, INC. and
PAREXEL INTERNATIONAL CORP., Defendants, Case No. 20-3383 (E.D.
Pa.), the U.S. District Court for the Eastern District of
Pennsylvania issued a memorandum finding that the Plaintiff lacks
standing and the Court does not have subject matter jurisdiction to
address her claims.
Clemens, individually and on behalf of a purported class, sued
ExecuPharm and parent Parexel over a data breach at ExecuPharm.
Clemens worked at ExecuPharm from February to November of 2016 and
provided the company "significant amounts of her personal and
financial information" as a "condition of her employment." She
signed an employment agreement as a further condition of her
employment. In it, ExecuPharm agreed to take appropriate measures
to protect the confidentiality and security of all personal
information. Although Clemens left the Company years ago,
ExecuPharm retained her sensitive personal information until at
least March 13, 2020. On that date, ExecuPharm's server was hacked
by the CLOP ransomware group.
CLOP organized a successful email phishing scheme to obtain server
access and encrypt data by installing malware. It accessed
thousands of individuals' sensitive information, including full
names, home addresses, social security numbers, taxpayer IDs,
credit card and bank information, beneficiary information and, in
some cases, passport copies. It then demanded a ransom from
ExecuPharm in exchange for data decryption tools and threatened to
release the data if the ransom was not timely paid.
On April 26, 2020, CLOP made at least some of the information it
stole available for download on the "dark web." The download links
contained nearly 123,000 files and 162 gigabytes of data, including
nearly 19,000 files of correspondence involving ExecuPharm and
Paraxel; more than 80,600 e-mail correspondences; financial,
accounting, user documents of ExecuPharm's employees and managers;
and a complete backup file of ExecuPharm's document management
system.
Ms. Clemens alleges she learned in an email from ExecuPharm on
March 20 that her information was accessed during CLOP's data
breach and ExecuPharm confirmed in an April 26 email that her
family's most sensitive personal and financial information was
shared on the dark web.
In making these allegations, Clemens appears to rely on the
ExecuPharm communications she quotes elsewhere in the Complaint,
which do not state she specifically was a victim of the data
breach, District Judge Gerald J. Pappert states.
After the breach, ExecuPharm offered free identity monitoring
services for one year to all potentially affected current and
former employees. Clemens took advantage of these services, but
also purchased additional services for herself and her family at a
cost of $39.99 per month.
Since the breach, Clemens alleges she has spent significant time
and effort reviewing her financial accounts, bank records, and
credit reports for unauthorized activity and will continue to do
so. She has occasionally missed work in order to pursue mitigative
measures.
Plaintiff Clemens sued ExecuPharm and Parexel on July 10, 2020,
seeking relief individually and on behalf of a class of individuals
whose personal information was compromised by the breach. Her
Complaint asserts claims of negligence (Count I), negligence per se
(Count II), breach of implied contract (Count III) and breach of
contract (Count IV) against both Defendants and breach of fiduciary
duty (Count V) and breach of confidence (Count VI) against
ExecuPharm. It also seeks a declaratory judgment stating the
Defendants' existing data security measures fail to comply with
their duties of care and instructing the Defendants to implement
and maintain industry-standard measures.
The Defendants moved to dismiss the Complaint in full pursuant to
Rule 12(b)(6) of the Federal Rules of Civil Procedure. On February
5, 2021, the Court ordered the Parties to provide supplemental
briefing addressing whether Clemens has standing to bring her
claims.
In their Supplemental Brief, the Defendants argue Clemens has not
alleged an injury-in-fact sufficient to establish Article III
standing in this Circuit. Clemens argues she has established
standing for all claims, but contends "irrespective of her other
claims," she "plainly" has standing for her contract-based causes
of action.
Judge Pappert finds that Clemens does not have standing to bring
the lawsuit because she has not alleged an injury-in-fact. She
argues she has because (1) her claims that her personal information
was stolen by professionals, held for ransom and posted to the dark
web demonstrate harm is certainly impending; (2) she alleges actual
harm from her time, money and effort to protect her information
based on the imminent risks she faces; and (3) she alleges harm to
her private contract rights, which confers standing even in the
absence of additional harm.
Judge Pappert opines that the Plaintiff's future harm remains
speculative, rather than certainly impending or at substantial risk
of occurring, because it is still only ascertainable using the word
"if"--if anyone actually downloaded her information from the dark
web, if they attempt to use her information, and if they do so
successfully, only then will she experience actual harm. The
speculative nature of any future harm is underscored by the fact
that nearly one year has passed since the ExecuPharm breach and
Clemens has never claimed to be a victim of fraud or identity theft
because of it, the Judge explains.
Clemens' allegations that she continues to invest time, money and
effort to protect her information do not give her standing either,
Judge Pappert avers. Judge Pappert points out that her expenditures
do not establish she has suffered actual harm because she made them
based on a speculative future risk of fraud or identity theft.
Clemens also cannot establish standing based on her allegations of
harm to her private contract rights irrespective of her other
claims, Judge Pappert opines. As Clemens acknowledges in her
Supplemental Brief, "the Third Circuit has not directly weighed in
on contractual standing" and thus has not held, as she suggests,
that "a contractual breach categorically creates an Article III
injury."
Indeed, the presence of contractual claims has not been relevant to
courts' analyses of standing in data breach cases in the Circuit,
Judge Pappert holds, citing Reilly v. Ceridian Corp., 664 F.3d 38,
42 (3d Cir. 2011).
A full-text copy of the Court's Memorandum dated Feb. 25, 2021, is
available at https://tinyurl.com/yxakdam2 from Leagle.com.
EXPERIAN INFORMATION: Can Compel Arbitration in Coulter FCRA Suit
-----------------------------------------------------------------
The U.S. District Court for the Eastern District of Pennsylvania
grants the Defendant's motion to compel arbitration in the lawsuit
titled RAMSEY COULTER, individually and on behalf of all similarly
situated consumers, Plaintiff, v. EXPERIAN INFORMATION SOLUTIONS,
INC., Defendant, Case No. 20-1814 (E.D. Pa.).
The Defendant moved to compel arbitration pursuant to the Federal
Arbitration Act ("FAA"), 9 U.S.C. Section 1, et seq. Plaintiff
Coulter opposes the motion.
The Plaintiff asserts a putative class action claim against the
Defendant for an alleged violation of the Fair Credit Reporting Act
("FCRA"), 15 U.S.C. Section 1681a, et seq. Specifically, he avers
that the Defendant knowingly reported inaccurate "dates of status"
on his and other consumers' credit card accounts and failed to
conduct a reasonable investigation of the matter, which negatively
impacted their credit scores.
The Defendant moves to compel arbitration of this claim pursuant to
an arbitration provision in the Terms of Use Agreement the
Plaintiff entered into when he enrolled in Experian CreditWorks
online, the service through which he discovered the alleged
inaccurate dates of status. It argues that the Terms of Use
Agreement contains a delegation clause that requires an arbitrator,
rather than a court, to decide all questions of arbitrability. The
Defendant further argues that the Arbitration Provision requires
arbitration on an individual basis, and not in the form of a class
action.
In opposing the motion, the Plaintiff argues he is not bound by the
current terms of the Terms of Use Agreement but, instead, by the
terms of the agreement entered at the time of his enrollment, which
exempted FCRA claims from the Arbitration Provision. He also argues
that the Defendant waived its right to arbitrate because it waited
nearly eight months after commencement of the litigation to move to
compel arbitration.
The Arbitration Provision's Delegation Clause provides that all
issues are for the arbitrator to decide, including the scope and
enforceability of this arbitration provision, and grants the
arbitrator exclusive authority to resolve any such dispute relating
to the scope and enforceability of this arbitration provision or
any other term of this Agreement including, any claim that all or
any part of this arbitration provision or Agreement is void or
voidable.
District Judge Nitza I. Quinones Alejandro notes that this
provision constitutes a clear and unmistakable delegation clause
under Henry Shein, Inc., 139 S. Ct. at 530, and delegates the
exclusive authority to resolve all issues to the arbitrator,
including the "scope and enforceability" of the Arbitration
Provision. Notably, the Plaintiff has not specifically disputed the
Delegation Clause. Therefore, the Plaintiff's arguments as to the
scope and enforceability of the Arbitration Provision fall under
the arbitrator's authority.
Because the Delegation Clause is valid and uncontested, the Court's
inquiry is limited to the issue of whether a valid arbitration
agreement exists.
Judge Alejandro notes, reasonable notice was provided when the
Defendant's website advised the Plaintiff that "by clicking 'Submit
Secure Order': He accepts and agrees to their Terms of Use
Agreement." By clicking the "Submit Secure Order" button, the
Plaintiff manifested his assent to the Terms of Use Agreement.
Because the Plaintiff had reasonable notice and manifested his
assent, the Judge finds the Terms of Use Agreement and the
Arbitration Provision therein constitute a valid agreement to
arbitrate.
Consistent with the Arbitration Provision's Delegation Clause, the
Court may not consider the parties' remaining arguments, including
the Plaintiff's arguments concerning the terms of the agreement and
whether the Defendant waived its right to arbitrate. Those issues
are to be resolved by the arbitrator, Judge Alejandro says.
Finally, the Defendant moves for the Plaintiff's claims to be
arbitrated on an individual basis only. The sole exception to the
arbitrator's authority under the Delegation Clause allows a court
to decide "whether this agreement permits class or representative
proceedings" if "putative class or representative claims are
initially brought by either party in a court of law, and a motion
to compel arbitration is brought by any party."
Judge Alejandro holds that class action waivers are enforceable
under the FAA, citing AT&T Mobility, LLC v. Concepcion, 563 U.S.
333, 333 (2011). The Defendant's Terms of Use Agreement requires
that claims by either party be brought on an individual basis,
rather than as a representative of a class. The Plaintiff's assent
to the Terms of Use Agreement includes assent to the class action
waiver. As such, the Court finds that the Plaintiff has waived his
right to bring claims against the Defendant as a class
representative. Therefore, the Plaintiff must arbitrate his claim
on an individual basis.
The Court finds that a valid agreement to arbitrate exists within
the Terms of Use Agreement. It also finds that the class action
waiver in the Terms of Use Agreement requires the Plaintiff to
arbitrate his claim on an individual basis only, and not as a
representative of a class. The parties' remaining disputes are for
the arbitrator to decide. Accordingly, the Defendant's motion to
compel arbitration is granted.
A full-text copy of the Court's Memorandum Opinion dated Feb. 25,
2021, is available at https://tinyurl.com/3etsrdvf from
Leagle.com.
FACEBOOK INC: April 8 Extension to File Class Status Bid Okayed
---------------------------------------------------------------
In the class action lawsuit captioned as DOTSTRATEGY, CO.,
Individually and On Behalf of All Others Similarly Situated, v.
FACEBOOK, INC., Case No. 3:20-cv-00170-WHA (N.D. Calif.), the Hon.
Judge William Alsup entered an order approving the Parties'
proposed stipulation regarding the following schedule for briefing
on Plaintiff's motion for class certification:
Event Proposed Deadline
Motion for class certification April 8, 2021
(currently due March 11,2021)
The Plaintiff's deadline April 8, 2021
to identify class certification
expert witnesses and serve
reports and underlying
supporting materials:
Opposition to motion for May 6, 2021
class certification
(currently due April 1, 2021):
The Defendant's deadline to May 6, 2021
identify class certification
expert witnesses and serve
reports and underlying
supporting materials:
Reply in support of motion May 27, 2021
for class certification
(currently due April 15, 2021):
The Plaintiff's deadline to May 27, 2021
serve class certification
rebuttal expert reports
and underlying supporting
materials:
Hearing on motion for June 10, 2021
class certification
(currently April 29, 2021):
Facebook is an American technology conglomerate based in Menlo
Park, California. It was founded by Mark Zuckerberg, along with his
fellow roommates and students at Harvard College.
A copy of the Court's order dated March 8, 2020 is available from
PacerMonitor.com at https://bit.ly/3qZSJAN at no extra charge.[CC]
The attorneys for the Plaintiff and the Proposed Class, are:
Solomon B. Cera, Esq.
Thomas C. Bright, Esq.
CERA LLP
595 Market Street, Suite 1350
San Francisco, CA 94105
Telephone: (415) 777-2230
Facsimile: (415) 777-5189
E-mail: scera@cerallp.com
tbright@cerallp.com
- and -
David A. Hodges, Esq.
THE DAVID HODGES LAW FIRM
212 Center Street, 5th Floor
Little Rock, Arkansas 72201
Telephone: (501) 374-2400
Facsimile: (501) 374-8926
E-mail: david@hodgeslaw.com
The Defendant is represented by:
Ashley M. Simonsen, Esq.
Simon J. Frankel, Esq.
Sean F. Howell, Esq.
Kathryn E. Cahoy, Esq.
COVINGTON & BURLING LLP
1999 Avenue of the Stars
Los Angeles, CA 90067-4643
Telephone: (424) 332-4782
Facsimile: (424) 332-4749
E-mail: asimonsen@cov.com
sfrankel@cov.com
showell@cov.com
kcahoy@cov.com
FAIRVIEW HEALTH: Dolan Files Class Suit in Minnesota
----------------------------------------------------
A class action lawsuit has been filed against FAIRVIEW HEALTH
SERVICES, et al., in Minnesota 4th Judicial Dist. Ct., Hennepin
County, on March 16, 2021. The case is styled as Mark Dolan,
individually and on behalf of all others similarly situated v.
FAIRVIEW HEALTH SERVICES and HealthEast Care System, Case No.
27-CV-21-3045.
The case type is stated as "Civil Other/Misc."
Fairview Health Services, based in Minneapolis --
https://www.fairview.org/ -- is a nonprofit academic health
system.[BN]
The Plaintiff is represented by:
Brandon Edward Thompson, Esq.
CIRESI CONLIN LLP
225 S. Sixth St., Ste. 4600
Minneapolis, MN 55402
Phone: 612-361-8200
Email BET@CiresiConlin.com
The Defendants appear pro se.
FLORISSANT, MO: Court Grants in Part Baker's Bid to Reconsider
--------------------------------------------------------------
The U.S. District Court for the Eastern District of Missouri grants
in part and denies in part the Plaintiffs' motion to reconsider in
the lawsuit captioned THOMAS BAKER, et al., Plaintiffs v. CITY OF
FLORISSANT, Defendant, Case No. 4:16-CV-1693 NAB (E.D. Mo.).
The matter is before the Court on the Plaintiffs' motion to
reconsider and to correct the record, the Defendant's motion for
contempt, the Defendant's motion to shorten time for the Plaintiffs
to respond, and the Plaintiffs' motion for leave to file
sur-reply.
The case is pending before United States Magistrate Judge Nannette
A. Baker, with consent of the parties, pursuant to 28 U.S.C.
Section 636(c).
The Plaintiffs filed the "debtors' prison" action as a purported
class action under Rule 23 of the Federal Rules of Civil Procedure
against the Defendant City of Florissant. They asserted seven
claims arising out of the Defendant's policies and practices of
jailing them for failure to pay fines owed from traffic and other
minor offenses. The Plaintiffs' operative complaint includes five
named plaintiffs and four proposed classes ("Original Classes").
The Plaintiffs previously moved for leave to file a second amended
complaint. The proposed second amended complaint contained several
changes and additions, including seven proposed classes. The
proposed seven modified classes reconfigured and added to the four
Original Classes contained in the operative complaint.
On May 6, 2020, the Court granted in part and denied in part the
Plaintiffs' motion for leave to file a second amended complaint. In
the Memorandum and Order, the Court granted the Plaintiffs leave to
amend a new complaint to correct demographical information of the
Plaintiffs, including age, incarceration periods, fine amounts,
incorrect dates, and any typographical errors. The Plaintiffs were
also granted leave to remove paragraphs that were no longer
supported by the information revealed in discovery.
The Court denied the Plaintiffs leave to add Demetrice Davis as a
plaintiff, reconfigure and add class categories, or add a claim
under Mo. Rev. Stat. Section 544.170. As a basis for the denial,
the Court found the Plaintiffs failed to show good cause to
reconfigure and add class categories. Specifically, the Court found
the Plaintiffs did not meet the most essential factor in that they
did not demonstrate diligence in seeking the amendments. In so
doing, the Court highlighted certain dates during discovery that
could have alerted the Plaintiffs of the need to amend the
complaint.
On May 7, 2020, the Plaintiffs filed a Motion to Reconsider and to
Correct Record. Their motion seeks reconsideration regarding the
Court's finding that the Plaintiffs were not diligent with respect
to refining class definitions. The Plaintiffs also seek to modify
the four Original Classes, now asking the Court to consider
inclusion of five of the Plaintiffs' seven modified classes.
The Court finds no reason to reconsider its prior order. Although
the Plaintiffs are correct that the Court stated the incorrect date
of Mr. Olsen's expert report and deposition in the Court's May 6,
2020 Memorandum and Order, the dates at issue do not change the
Court's consideration and analysis of whether the Plaintiffs may
amend their complaint to reconfigure and add classes.
Accordingly, to the extent the motion seeks reconsideration of the
Court's denial of leave to reconfigure and add class categories,
the motion is denied. To the extent the motion seeks to correct the
error in the dates Mr. Olsen submitted his expert report and was
deposed, the motion to correct the record is granted.
On May 21, 2020, the Plaintiffs filed their motion for class
certification. In their motion, the Plaintiffs seek certification
of four of the seven modified classes that were the subject of the
Plaintiffs' motion for leave to file a Second Amended Complaint,
stating they believe the Court's ruling as to the requested
modified classes was based on factual error. The Plaintiffs further
assert that "at the certification stage, Plaintiffs (and the Court)
are permitted to seek certification of modified versions of the
class definitions in their original Complaint, which Plaintiffs
seek to do here."
Accordingly, the Plaintiffs submitted alternate class definitions
to the Court for certification, termed "Modified" and "Original"
Classes, allegedly consisting of the same groups of individuals
subject to Florissant's unconstitutional treatment. The Plaintiffs
assert that the only difference between the proposed classes is
that the Modified Classes include smaller classes for each
different jailing-based constitutional deprivation, whereas the
Original Classes group the jailing violations together.
In response to the Plaintiffs' motion to reconsider and motion for
class certification, the Defendant filed four motions. The first
was a motion for a hearing, which the Court denied without
prejudice. The second was a motion for extension of time to file a
response to the Plaintiffs' motion for class certification, which
the Court granted. The third and fourth motions, a motion for
contempt and a motion to shorten the time for the Plaintiffs to
respond to the Defendant's motions are presently before the Court.
The Defendant's motion to shorten the time for the Plaintiffs to
respond to the Defendant's motions is denied as moot.
In response to the Defendant's motion for contempt, the Plaintiffs
filed an opposition, and Defendant filed a reply. The Plaintiffs
also filed a motion for leave to file sur-reply, asserting that the
Defendant's reply raises a new claim that is factually incorrect,
and the Plaintiffs seek leave to file the 1.5-page sur-reply
attached to their motion. The Defendant filed an opposition to the
Plaintiffs' motion for leave and addressed the substance of the
Plaintiffs' sur-reply in its opposition.
In the interest of full consideration of the parties' arguments on
issues that remain open before the Court, the Plaintiffs' motion
for leave to file sur-reply is granted.
Defendant's Motion for Contempt
Judge Baker opines that the Defendant has failed to demonstrate by
clear and convincing evidence that the Plaintiffs' motion for class
certification violates the Court's May 6, 2020 Memorandum and
Order. The Plaintiffs filed the motion for class certification
after filing a motion to reconsider and to correct the record. The
Plaintiffs explain they had a good faith reason to seek
reconsideration and clarification of the order denying leave to
amend class categories in the complaint, as there was a factual
error in the Memorandum and Order.
The Plaintiffs' motion to reconsider was pending at the time their
motion for class certification was due. Rather than seek an
amendment to the deadline to move for class certification, the
Plaintiffs moved for certification of four of the modified classes
and the four Original classes in the alternative.
Under these circumstances, it cannot be said the Plaintiffs'
proposal of modified classes and original classes in the
alternative warrants a finding of contempt, Judge Baker holds.
The Defendant has not established it is entitled to the specific
relief it requests--an order that the Plaintiffs may not seek
certification of classes they were denied leave to include in their
proposed second amended complaint, Judge Baker finds. The
Plaintiffs seek certification of four of the seven classes they
were denied leave to include in their proposed second amended
complaint. The Plaintiffs have provided legal authority to indicate
that a plaintiff may ask the Court to certify classes with
alternate definitions or definitions that do not match the
operative complaint.
While the Plaintiffs will have to carry the burden in their class
certification motion, it is the Defendant's burden to establish by
clear and convincing evidence that a contempt sanction is
appropriate, Judge Baker points out. The Defendant has not met this
burden. The Defendant's motion for contempt is denied.
Accordingly, it is ordered that the Plaintiffs' Motion for
Reconsideration is granted in part and denied in part. The motion
is granted to the extent it seeks to correct a clerical error in
the dates of Plaintiffs' expert report and deposition, and denied
in all other respects.
The Clerk of Court will make a parenthetical notation after the
docket text for the Memorandum and Order dated May 6, 2020, stating
that the Memorandum and Order dated May 6, 2020 has been amended by
an Amended Memorandum and Order issued on this date.
The Plaintiffs will file their Second Amended Complaint in
accordance with the Amended Memorandum and Order.
The Defendant's Motion for Contempt is denied. The Defendant will
file its response to the Plaintiffs' Motion for Class Certification
within twenty-eight (28) days of this Order.
The Defendant's Motion to Shorten Time is denied as moot.
The Plaintiffs' Motion for Leave to File Sur-Reply is granted.
An Amended Memorandum and Order amending the Memorandum and Order
dated May 6, 2020 will accompany the Memorandum and Order.
A full-text copy of the Court's Memorandum and Order dated Feb. 25,
2021, is available at https://tinyurl.com/yd29axsw from
Leagle.com.
FOREMOST GLATT: Denial of Kensington's Bid to Toss Robinson Flipped
-------------------------------------------------------------------
The Appellate Division of the Supreme Court of New York, First
Department, reversed the denial of Kensington Event Staffing's
motion to dismiss in the matters titled BARRY ROBINSON, ETC.,
Plaintiff v. FOREMOST GLATT KOSHER CATERERS, INC., ET AL.,
Defendants. FOREMOST GLATT KOSHER CATERERS, INC., Third-Party
Plaintiff-Respondent v. KENSINGTON EVENT STAFFING, Third-Party
Defendant-Appellant, JOHN DOE CORPORATIONS A, B, AND C, Defendants,
Index No. 158042/18, 595199/19, Appeal No. 13231, Case No.
2020-02661 (N.Y. App. Div.).
The appeal is from an Order issued by the Supreme Court, New York
County (Andrew Borrok, J.), entered on March 9, 2020, which denied
third-party Defendant Kensington's motion to dismiss the
third-party complaint as against it.
In the putative class action, the Plaintiff seeks to recover
charges purported to be gratuities allegedly withheld from him and
other catering service workers by Defendant/Third-Party Plaintiff
Foremost in violation of Labor Law Section 196-d and the
Hospitality Industry Wage Order (codified at 12 NYCRR part 146).
The complaint alleges that Foremost assessed mandatory charges to
its customers, allowed them to believe that the mandatory charges
were gratuities that would be distributed to waitstaff at their
events, and instead retained the charges for itself.
Foremost commenced a third-party action against Kensington--the
company that supplied the waitstaff for the events--seeking
indemnification for damages that may be recovered from Foremost in
the first-party action. However, the third-party complaint alleges
that Foremost's mandatory charges to its customers were used to
cover its own discretionary costs and does not allege that these
charges were ever paid to or shared with Kensington.
Moreover, there is no allegation either in the complaint or
third-party complaint that Kensington wrongfully withheld any
mandatory charges purported to be gratuities from the waitstaff.
Further, Foremost does not dispute Kensington's contention that it
had nothing to do with Foremost's decision to impose the mandatory
charges or retain them.
Accordingly, Foremost has not stated a cause of action against
Kensington for implied indemnification. The Order is unanimously
reversed, on the law and the facts, with costs, the motion granted
and the third-party complaint dismissed. The Clerk is directed to
enter judgment accordingly.
In light of the foregoing, the parties' remaining contentions are
academic, the Appellate Court holds.
A full-text copy of the Court's Decision and Order dated Feb. 25,
2021, is available at https://tinyurl.com/23krhh5k from
Leagle.com.
Simon & Milner, in Valley Stream, New York (Eric M. Milner --
mmilner@simonandmilner.com -- of counsel), for Appellant.
Lindabury, McCormick, Estabrook & Cooper, in New York City (Stacey
K. Edelbaum -- sboretz@lindabury.com -- of counsel), for
Respondent.
FROEDTERT HEALTH: FLSA & Rule 23 Class Certification Sought
-----------------------------------------------------------
In the class action lawsuit captioned as Toni Fore Diamond Griffith
On behalf of herself and all others similarly situated, v.
Froedtert Health Inc., Case No. 2:19-cv-01488-JPS (E.D. Wisc.), the
Parties ask the Court to enter an order granting their stipulation,
and, for settlement purposes only:
1. Grant final certification for a FLSA opt-in collective
action including the following:
"All persons who were employed by Froedtert as hourly non-
exempt employees during the time period of October 10,
2016 to the date the Court grants preliminary approval to
the parties' settlement agreement;" and
b. Grant certification pursuant to Rule 23 for an opt-out
class including the following:
"All individuals employed by Defendant as non-exempt
employees during the period of October 10, 2017 through
the date of the Court's Preliminary Approval of the
parties’ settlement agreement."
A copy of the Parties motion dated March 5, 2020 is available from
PacerMonitor.com at https://bit.ly/38MQIBS at no extra charge.[CC]
The Plaintiff is represented by
Yingtao Ho, Esq.
THE PREVIANT LAW FIRM, S.C.
310 West Wisconsin Avenue, Suite 100MW
Milwaukee, WI 53203
Telephone: 414-271-4500
Facsimile: 414-271-6308
E-mail: yh@previant.com
The Defendant is represented by
Cheryl D. Orr, Esq.
DRINKER BIDDLE & REATH LLP
Four Embarcadero Center, 27th Floor
San Francisco, CA 94111
Telephone: 415-591-7503
Facsimile: 415-591-7510
E-mail: cheryl.orr@dbr.com
FRONT PORCH: Raines Appeals Case Dismissal Ruling to 9th Circuit
----------------------------------------------------------------
Plaintiffs Kristina Raines, et al., filed an appeal from a court
ruling entered in the lawsuit entitled KRISTINA RAINES,
individually and on behalf of all others similarly situated,
Plaintiff, v. FRONT PORCH COMMUNITIES AND SERVICES, a corporation;
U.S. HEALTHWORKS MEDICAL GROUP, a corporation; SELECT MEDICAL
HOLDINGS CORPORATION, a corporation; CONCENTRA GROUP HOLDINGS, LLC,
a corporation; and DOES 3 through 10, inclusive Defendants, Case
No. 3:19-cv-01539-DMS-DEB, in the U.S. District Court for the
Southern District of California, San Diego.
As previously reported in the Class Action Reporter, the lawsuit
was removed from the Superior Court of California for the County of
San Diego to the United States District Court for the Southern
District of California on Aug. 15, 2019, and assigned Case No.
3:19-cv-01539-DMS-MSB.
In early March 2018, Front Porch Communities and Services offered
Plaintiff employment so long as she satisfactorily completed a
pre-employment medical examination. Before attending any
pre-employment medical examination, she executed consent and
release forms. Plaintiff then went to a U.S. HealthWorks Medical
Group, Prof. Corp. ("USHW") clinic for the pre-employment medical
examination. While there, she refused to respond to basic medical
questions, became belligerent and hostile, and left the examination
all together. USHW then contacted Front Porch and reported
Plaintiff's refusal to complete the medical examination. USHW
shared no medical information with Front Porch. After learning that
Plaintiff refused to complete the medical examination, Front Porch
revoked the job offer because it could not allow her to commence
work.
The Plaintiff alleges all causes of action against USHW: age
discrimination, gender discrimination, retaliation, wrongful
refusal to hire, violation of the Unruh Civil Rights Act, violation
of the Confidentiality of Medical Information Act, and intrusion
into private affairs.
The Plaintiff seek a review of the Court's Order dated January 25,
2021, granting Defendants' motion to dismiss, and Order dated March
2, 2021, dismissing Plaintiffs' fourth cause of action.
The appellate case is captioned as Kristina Raines, et al. v. U.S.
Healthworks Medical Group, et al., Case No. 21-55229, in the United
States Court of Appeals for the Ninth Circuit, March 11, 2021.
The briefing schedule in the Appellate Case states that:
-- Appellants Darrick Figg and Kristina Raines Mediation
Questionnaire was due on March 18, 2021;
-- Appellants Darrick Figg and Kristina Raines opening brief is
due on May 10, 2021;
-- Appellees Concentra Group Holdings LLC, Concentra Primary
Care of California, Concentra, Inc., Does, Occupational Health
Centers of California, Select Medical Corporation, Select Medical
Holdings Corporation, U.S. Healthworks Medical Group and U.S.
Healthworks, Inc. answering brief is due on June 9, 2021; and
-- Appellant's optional reply brief is due 21 days after service
of the answering brief.[BN]
Plaintiffs-Appellants KRISTINA RAINES and DARRICK FIGG,
individually and on behalf of all others similarly situated, are
represented by:
Nicholas A. Carlin, Esq.
R. Scott Erlewine, Esq.
PHILLIPS ERLEWINE, GIVEN & CARLIN LLP
39 Mesa Street, Suite 201
San Francisco, CA 94129
Telephone: (415) 398-0900
E-mail: rse@phillaw.com
Defendants-Appellees U.S. HEALTHWORKS MEDICAL GROUP, a corporation;
and SELECT MEDICAL HOLDINGS CORPORATION, a corporation; CONCENTRA
GROUP HOLDINGS LLC, a Corporation U.S. HEALTHWORKS, INC., a
corporation; SELECT MEDICAL CORPORATION, a corporation; CONCENTRA,
INC., a corporation; CONCENTRA PRIMARY CARE OF CALIFORNIA, a
medical corporation; and OCCUPATIONAL HEALTH CENTERS OF CALIFORNIA,
a Medical Corporation, are represented by:
Cameron O'Brien Flynn, Esq.
Timothy L. Johnson, Esq.
OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C.
4370 La Jolla Village Drive, Suite 990
San Diego, CA 92122
Telephone: (858) 652-3100
E-mail: cameron.flynn@ogletree.com
tim.johnson@ogletree.com
G4S SECURE: Kovacs Files Bid for Conditional Certification
----------------------------------------------------------
In the class action lawsuit captioned as JACQUELINE KOVACS, on
behalf of herself and all others similarly situated, v. G4S SECURE
SOLUTIONS (USA) INC., Case No. 1:20-cv-03180-WJM-KMT (D. Colo.),
the Plaintiff asks the Court to enter an order:
1. granting conditional certification of the following class:
"All former and current hourly, non-exempt security guard
employees employed by Defendant in Colorado at any time in
the three years prior to the date of conditional
certification;" and
2. approving the issuance of notice to similarly situated
persons enabling them to opt-in.
The Plaintiff alleges that Defendant failed to pay its hourly,
non-exempt security guard employees for pre-shift "pass-down" work.
This practice resulted in Defendant's hourly, non-exempt security
guard employees not being paid all of the overtime pay they earned.
The Defendant provides "industry-leading, innovative integrated
security solutions" to its customers. As such, the Defendant
employs security guards in Colorado (and the entire country) who
are assigned by the Defendant to work at its customers' sites.
A copy of the Plaintiff's motion to certify class dated March 5,
2020 is available from PacerMonitor.com at https://bit.ly/3bWMg5a
at no extra charge.[CC]
The Plaintiff is represented by
Hans A. Nilges, Esq.
Shannon M. Draher, Esq.
Jeffrey J. Moyle, Esq.
NILGES DRAHER LLC
7266 Portage Street, N.W., Suite D
Massillon, OH 44646
Telephone: (330) 470-4428
Facsimile: (330) 754-1430
E-mail: hans@ohlaborlaw.com
sdraher@ohlaborlaw.com
jmoyle@ohlaborlaw.com
GENERAL MOTORS: Carr Suit Transferred to E.D. Michigan
------------------------------------------------------
The case styled Mary Carr, Jan G. Wyers, individually and on behalf
of all others similarly situated v. General Motors LLC, Case No.
3:21-cv-00306, was transferred from the U.S. District Court for the
District of Oregon, to the U.S. District Court for the Eastern
District of Michigan on March 15, 2021.
The District Court Clerk assigned Case No. 2:21-cv-10565-AJT-RSW to
the proceeding.
The nature of suit is stated as Other Fraud.
General Motors -- https://www.gm.com/ -- is an American
multinational corporation headquartered in Detroit that designs,
manufactures, markets, and distributes vehicles and vehicle parts,
and sells financial services, with global headquarters in Detroit's
Renaissance Center.[BN]
GENERAL REVENUE: Bostic Suit Removed to N.D. Alabama
----------------------------------------------------
The case captioned as Ashley Bostic, individually and on behalf of
all other similarly situated consumers v. General Revenue
Corporation, Case No. 47-cv-21-900206 was removed from the Circuit
Court of Madison County, Alabama, to the U.S. District Court for
Northern District of Alabama on March 16, 2021.
The District Court Clerk assigned Case No. 5:21-cv-00393-AKK to the
proceeding.
The nature of suit is stated as Consumer Credit for Fair Credit
Reporting Act.
General Revenue Corporation (GRC) --
https://www.generalrevenue.com/ -- is one of the largest and most
successful college- and university-focused collection
agencies.[BN]
The Plaintiff is represented by:
Curtis Hussey, Esq.
HUSSEY LAW FIRM LLC
82 Plantation Pointe Drive, #288
Fairhope, AL 36532
Phone: (251) 928-1423
Fax: (866) 317-2674
Email: gulfcoastadr@gmail.com
The Defendant is represented by:
Charles Walton Prueter, Esq.
WALLER LANSDEN DORTCH & DAVIS LLP
1901 Sixth Avenue North Suite 1400
Birmingham, AL 35203
Phone: (205) 226-5735
Fax: (205) 214-7342
Email: charles.prueter@wallerlaw.com
GEORGIA: 11th Cir. Affirms Summary Judgment for DOC in Martinez
---------------------------------------------------------------
In the case, HARLEM MARTINEZ, Plaintiff-Appellant v. WARDEN, GREG
DOZIER, in his individual capacity, ASSISTANT WARDEN RICK STONE,
LINDA WALKER, TIMOTHY WARD, In his capacity as Commissioner of the
Georgia Department of Corrections, Defendants-Appellees, Case No.
20-11631 (11th Cir.), the U.S. Court of Appeals for the Eleventh
Circuit affirms the district court's grant of summary judgment to
the CCF Defendants.
Appellant Martinez, a Georgia prisoner proceeding pro se, appeals
the district court's grant of summary judgment on his 42 U.S.C.
Section 1983 action, challenging the lack of Spanish law books and
legal materials in Coffee Correctional Facility's ("CCF") law
library as a discriminatory policy that violates the Equal
Protection Clause. Martinez argues that genuine issues of material
fact existed that precluded the grant of summary judgment, and the
district court erroneously resolved factual issues in favor of
Warden Hilton Hall, Assistant Warden Rick Stone, and Linda Walker,
a law library aide at the CCF, as well as former Commissioner of
the Georgia Department of Corrections Dozier and current
Commissioner Ward ("CCF Defendants").
Mr. Martinez has been incarcerated at the CCF since March 2015.
Originally from El Salvador, Martinez's native language is Spanish.
He allegedly speaks little English and cannot read or write in
English. The CCF is a private prison facility operated and managed
by CoreCivic, Inc., and it provides certain services to inmates
housed at CCF, including legal research materials and translation
services. Under CoreCivic's policy, the primary legal research
materials in the library consist of an electronic subscription
product from Lexis Nexis that is specifically curated for Georgia
prisoners and is available only in English. Another research
material, the Jailhouse Lawyer's Handbook, a standard legal
research book in prison law libraries, is not presently available
for purchase in Spanish. The law library at CCF only has one
Spanish-language law book available for its inmates: a Spanish to
English and English to Spanish Law Dictionary.
Mr. Martinez filed a 42 U.S.C. Section 1983 complaint, as a class
action, against the CCF Defendants, alleging that they violated the
Equal Protection Clause of the Fourteenth Amendment by racially
discriminating against Martinez because they did not provide him
with Spanish-language legal research material. He sought
preliminary and permanent injunctive relief, compensatory damages,
and punitive damages.
The magistrate judge entered an initial report and recommendation
("R&R"), to which Martinez filed objections. The magistrate judge
interpreted the objections as a motion to amend the complaint and
gave Martinez leave to file an amended complaint. Martinez filed
an amended complaint, reiterating his claims from his first
complaint. The CCF Defendants filed an amended answer.
The district court adopted the magistrate judge's R&R, overruled
Martinez's objections, and dismissed Martinez's access to the
courts, conspiracy, class action, and preliminary injunctive relief
claims. The CCF Defendants moved for summary judgment and provided
sworn declarations of the named parties, and a sworn declaration of
Jennifer Williams, an attorney for CoreCivic.
Mr. Martinez opposed the motions for summary judgment, arguing that
as a Hispanic, Spanish-speaking prisoner, he had been denied an
adequate, effective and meaningful law library to pursue
post-conviction proceedings. He submitted several sworn
declarations supporting his contention that CCF's law library was
inadequate because it contained one bilingual law book and no
computer software offering Spanish legal materials.
The magistrate judge recommended that the CCF Defendants' motions
for summary judgment be granted because Martinez did not establish
the alleged discrimination was based on his membership in a suspect
class, could not establish intentional discrimination, and could
not prove that he had been treated differently than similarly
situated inmates.
The district court adopted the R&R and granted the CCF Defendants'
motions for summary judgment. It found that Martinez's equal
protection claims failed on three independent grounds: (1) Martinez
could not establish that the alleged discrimination was based on
his membership in a suspect class; (2) Martinez could not show that
he was "similarly situated" to his comparators because inmates who
speak limited or no English are differently situated than those who
are fluent in English; and (3) Martinez presented no evidence that
the alleged discrimination was intentional or motivated by a
discriminatory purpose.
Mr. Martinez appeals the district court's grant of summary judgment
to the CCF Defendants. Martinez argues that the district court
erred in granting summary judgment to the CCF Defendants because
there were genuine issues of material fact that precluded the grant
of summary judgment, and the district court improperly resolved the
factual disputes in favor of the CCF Defendants.
The CCF Defendants initially contend that Martinez fails to
properly challenge the district court's ruling on his equal
protection claims and fails to establish how any of the proposed
disputed facts were material to the district court's ruling. They
also assert that Martinez offers no analysis of the district
court's conclusions that his language abilities do not make him a
member of a suspect class, that he was not "similarly situated" to
inmates who can read and write English, and that the policies he
challenges were motivated by discriminatory intent. Alternatively,
the CCF Defendants argue that Martinez's claim fails as a matter of
law.
The Eleventh Circuit concludes, based on the record, that Martinez
has abandoned his challenge to the district court's grant of
summary judgment by failing to challenge the three independent
grounds for its equal protection ruling. It holds that while
Martinez references these grounds in a list of "disputed facts" in
his statement of the case in his brief on appeal, he does so in a
perfunctory manner without supporting arguments and authority and
only specifies one of the grounds, discriminatory intent, in the
body of his argument.
Assuming arguendo that Martinez has preserved his challenge on
appeal, the Circuit Court concludes that the district court
properly granted summary judgment. Even assuming without deciding
that Martinez showed that he was a member of a suspect class, he
did not show that the alleged discrimination by any of the CCF
Defendants was intentional. CoreCivic's corporate legal department
determined the contents of the CCF library, and the absence of
Spanish legal materials did not stem from intentional
discrimination but from the unavailability of such materials for
purchase.
Accordingly, for the aforementioned reasons, Eleventh Circuit
affirms the district court's grant of summary judgment for the CCF
Defendants.
A full-text copy of the Court's March 10, 2021 Order is available
at https://tinyurl.com/yxp8vnre from Leagle.com.
GERBER CHILDRENSWEAR: Sanchez Files ADA Suit in S.D. New York
-------------------------------------------------------------
A class action lawsuit has been filed against Gerber Childrenswear
LLC. The case is styled as Cristian Sanchez, on behalf of himself
and all others similarly situated v. Gerber Childrenswear LLC, Case
No. 1:21-cv-02288 (S.D.N.Y., March 16, 2021).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Gerber Childrenswear LLC -- https://www.gerberchildrenswear.com/ --
is a marketer of children's everyday basic/fashion/performance
apparel and related products which it offers under some of the
world's trusted brands.[BN]
The Plaintiff is represented by:
Joseph H. Mizrahi, Esq.
COHEN & MIZRAHI LLP
300 Cadman Plaza West, 12th Floor
Brooklyn, NY 11201
Phone: (929) 575-4175
Fax: (929) 575-4195
Email: joseph@cml.legal
GOETZE'S CANDY: Williams Files ADA Suit in S.D. New York
--------------------------------------------------------
A class action lawsuit has been filed against Goetze's Candy
Company, Inc. The case is styled as Milton Williams, on behalf of
himself and all other persons similarly situated v. Goetze's Candy
Company, Inc., Case No. 1:21-cv-02303 (S.D.N.Y., March 16, 2021).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Goetze's Candy Company, Inc. -- https://www.goetzecandy.com/ -- is
an American confectionery company based in Baltimore, Maryland
specializing in caramel-based candies.[BN]
The Plaintiff is represented by:
Michael A. LaBollita, Esq.
GOTTLIEB & ASSOCIATES
150 E. 18th Street, Suite Phr
New York, NY 10003
Phone: (212) 228-9795
Email: michael@gottlieb.legal
GREGORY'S COFFEE: Denial of Bid to Dismiss in Griffin Suit Affirmed
-------------------------------------------------------------------
The Appellate Division of the Supreme Court of New York, First
Department, unanimously affirmed the denial of the Defendants'
motion to dismiss class allegations in the lawsuit captioned NICOLE
GRIFFIN, Plaintiff-Respondent v. GREGORY'S COFFEE MANAGEMENT LLC,
Defendants-Appellants, Index No. 153397/18, Appeal No. 13226, Case
No. 2020-03902 (N.Y. App. Div.).
The appeal is from an Order by the Supreme Court, New York County
(Kathryn E. Freed), entered on June 9, 2020, which, to the extent
appealed from as limited by the briefs, denied the Defendants'
motion to dismiss the class allegations asserted in the Plaintiff's
amended complaint. The Order is unanimously affirmed, with costs.
The Order appealed from involves a pre-certification motion to
dismiss. In reviewing these types of motions, the Appellate Court
has held that it will generally be "premature to dismiss class
action allegations before an answer is served or pre-certification
discovery has been taken," citing Downing v First Lenox Terrace
Assoc., 107 A.D.3d 86, 91 [1st Dept 2013], affd 24 N.Y.3d 382
[2014]. A defendant will succeed on a pre-certification motion to
dismiss only where it "appears conclusively from the complaint and
from the affidavits that there was as a matter of law no basis for
class action relief." Thus, to succeed on the underlying motion,
the Defendants had the burden of showing "conclusively" that there
was no basis for class action relief as a matter of law
The Appellate Court opines that the Defendants have not
"conclusively" shown that there is no commonality as to the
questions of law or fact that relate to the proposed class. Among
other things, the Plaintiff alleges that the Defendants violated
Part 146 of the New York Minimum Wage Order because they did not
provide their employees with a sufficient number of uniforms for
the average days worked per week and/or did not properly reimburse
the employees for purchasing uniforms.
Contrary to the Defendants' assertions, calculating damages under
the Wage Order would be relatively straightforward, and not
governed by the "subjective" and individualized inquiries that the
Defendants rely upon in support of reversal, according to the
Appellate Court. Nor have the Defendants "conclusively
demonstrated" that there is no basis for class action relief when
applying the "wash and wear" exception. The court properly awarded
pre-certification discovery rather than dismissing the complaint.
The Appellate Court has considered the Defendants' remaining
contentions, and finds them unavailing.
A full-text copy of the Court's Decision and Order dated Feb. 25,
2021, is available at https://tinyurl.com/5854thd5 from
Leagle.com.
White and Williams LLP, in New York City (George C. Morrison --
morrisong@whiteandwilliams.com -- of counsel), for Appellants.
Bouklas Gaylord LLP, in Commack, New York (James Bouklas --
james@wagetheftny.com -- of counsel), for Respondent.
H&R BLOCK: Swanson Appeals Arbitration Bid Ruling to 8th Circuit
----------------------------------------------------------------
Plaintiff Aaricka Swanson filed an appeal from a court ruling
entered in the lawsuit entitled AARICKA SWANSON, on behalf of
herself and all others similarly situated, the Plaintiff v. H&R
BLOCK, INC., HRB TAX GROUP, INC., HRB DIGITAL, LLC, and FREE FILE,
INC., the Defendants, Case No. 4:19-cv-00788-GAF, in the U.S.
District Court for the Western District of Missouri - Kansas City.
As previously reported in the Class Action Reporter, the lawsuit
alleges that H&R Block is engaged in a campaign that intentionally
diverts and deceives lower-income taxpayers who are eligible to
receive free tax preparation and filing services under the United
States Internal Revenue Service's (IRS) Free File program to their
paid tax-filing products.
According to the complaint, pursuant to a contract agreement
between Defendant Free File, Inc. (formerly known as Free File
Alliance, LLC) and the IRS, H&R Block and other tax preparation
providers are required to cumulatively offer 70% of U.S. taxpayers
based on Adjusted Gross Income (currently anyone with an AGI of
$66,000 or less) the option to file their taxes for free.
The Plaintiff is seeking a review of the Court's Order dated
February 10, 2021, granting Defendants' motion to enforce order and
compel arbitration.
The appellate case is captioned as Aaricka Swanson v. H&R Block,
Inc., et al., Case No. 21-1566, in the United States Court of
Appeals for the Eighth Circuit, March 10, 2021.
The briefing schedule in the Appellate Case states that:
-- Appendix is due on April 19, 2021;
-- BRIEF OF APPELLANT Aaricka Swanson is due on April 19, 2021;
and
-- Appellee brief is due 30 days from the date the court issues
the Notice of Docket Activity filing the brief of appellant.[BN]
Plaintiff-Appellant Aaricka Swanson, On behalf of herself and all
others similarly situated, is represented by:
Eric David Barton, I, Esq.
Sarah Steen Ruane, Esq.
WAGSTAFF & CARTMELL
4740 Grand Avenue, Suite 300
Kansas City, MO 64112-0000
Telephone: (816) 701-1100
E-mail: ebarton@wcllp.com
sruane@wcllp.com
- and -
Andrew Obergfell, Esq.
BURSOR & FISHER
888 Seventh Avenue
New York, NY 10019
Telephone: (646) 837-7129
E-mail: aobergfell@bursor.com
Defendants-Appellees H&R Block, Inc., HRB Tax Group, Inc., HRB
Digital, LLC, trading as H&R Block, and Free File, Inc. are
represented by:
Darren K. Cottriel, Esq.
JONES & DAY
3 Park Plaza, Suite 1100
Irvine, CA 92614-0000
Telephone: (949) 851-3939
E-mail: dcottriel@jonesday.com
- and -
Anthony J. Durone, Esq.
Stacey R. Gilman, Esq.
BERKOWITZ & OLIVER
2600 Grand Boulevard, Suite 1200
Kansas City, MO 64108
Telephone: (816) 561-7007
E-mail: adurone@berkowitzoliver.com
- and -
Carol A. Hogan, Esq.
JONES & DAY
77 W. Wacker Drive, Suite 3500
Chicago, IL 60601-1692
Telephone: (312) 269-4241
E-mail: chogan@jonesday.com
- and -
Christopher R. J. Pace
JONES & DAY
600 Brickell Avenue, Suite 3300
Miami, FL 33131
Telephone: (305) 714-9700
E-mail: crjpace@jonesday.com
- and -
Archis Ashok Parasharami, Esq.
MAYER & BROWN
1999 K Street, N.W.
Washington, DC 20006-1101
Telephone: (202) 263-3000
E-mail: aparasharami@mayerbrown.com
- and -
Kersten L. Holzhueter, Esq.
SPENCER & FANE
1000 Walnut Street, Suite 1400
Kansas City, MO 64106-2140
Telephone: (816) 474-8100
E-mail: kholzhueter@spencerfane.com
- and -
Sam C. Neel, Esq.
MCDERMOTT & WILL
The McDermott Building
500 N. Capitol Street, N.W.
Washington, DC 20001
Telephone: (202) 756-8821
E-mail: sneel@mwe.com
HANOVER INSURANCE: Fink Appeals Order in Insurance Suit to 9th Cir.
-------------------------------------------------------------------
Plaintiff Jesse Fink filed an appeal from a court ruling entered in
the lawsuit entitled JESSE FINK DBA TOY BOAT DESSERT CAFE, on
behalf of himself and all others similarly situated v. THE HANOVER
INSURANCE GROUP, INC., and MASSACHUSETTS BAY INSURANCE COMPANY,
Case No. 4:20-cv-03907-JST, in the U.S. District Court for the
Northern District of California, Oakland.
As reported in the Class Action Reporter on July 3, 2020, the
lawsuit arises from the Defendants' breach of their contractual
obligations under common general commercial property insurance
policies.
According to the complaint, these Policies are supposed to
compensate the Plaintiff and others similarly situated for business
losses and extra expenses, and related losses resulting from
actions taken by civil authorities to stop the human to human and
surface to human spread of the COVID-19 pandemic.
The Plaintiff contends that Hanover has abrogated its insurance
coverage obligations pursuant to the Policies' clear and
unambiguous terms and has wrongfully and illegally refused to
provide the coverage to which Plaintiff and Class Members are
entitled.
Jesse Fink, a proprietor doing business as Toy Boat Dessert Cafe,
seeks to review the Court's Order dated February 11, 2021,
dismissing the case with prejudice, and Order dated January 25,
2021, granting Defendants' motion to dismiss the case.
The appellate case is captioned as Jesse Fink v. The Hanover
Insurance Group, et al., Case No. 21-15421, in the United States
Court of Appeals for the Ninth Circuit, March 10, 2021.
The briefing schedule in the Appellate Case states that:
-- Appellant Jesse Fink Mediation Questionnaire was due on March
17, 2021;
-- Appellant Jesse Fink opening brief is due on May 10, 2021;
-- Appellees Massachusetts Bay Insurance Company and The Hanover
Insurance Group, Inc. answering brief is due on June 7, 2021; and
-- Appellant's optional reply brief is due 21 days after service
of the answering brief.[BN]
Plaintiff-Appellant JESSE FINK, on behalf of himself and all others
similarly situated, DBA Toy Boat Dessert Cafe, is represented by:
Nathan M. Smith, Esq.
BROWN NERI SMITH & KHAN LLP
11601 Wilshire Boulevard, Suite 2080
Los Angeles, CA 90025
Telephone: (310) 593-9890
E-mail: nate@bnsklaw.com
- and -
Douglas Gregory Blankinship, Esq.
Todd S. Garber, Esq.
FINKELSTEIN BLANKINSHIP FREI-PEARSON AND GARBER LLP
One North Broadway, Suite 900
White Plains, NY 10601
Telephone: (914) 298-3281
E-mail: gblankinship@fbfglaw.com
tgarber@fbfglaw.com
Defendants-Appellees THE HANOVER INSURANCE GROUP, INC. and
MASSACHUSETTS BAY INSURANCE COMPANY are represented by:
Stephen M. Hayes, Esq.
Ryan Keller, Esq.
HAYES SCOTT BONINO ELLINGSON & MCLAY, LLP
203 Redwood Shores Pkwy, Suite # 480
Redwood City, CA 94065
Telephone: (650) 637-9100
E-mail: shayes@hayesscott.com
rkeller@hayesscott.com
HAWTHORNE FOOD: Williams Files ADA Suit in S.D. New York
--------------------------------------------------------
A class action lawsuit has been filed against Hawthorne Food
Company. The case is styled as Milton Williams, on behalf of
himself and all other persons similarly situated v. Hawthorne Food
Company, Case No. 1:21-cv-02305 (S.D.N.Y., March 16, 2021).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Hawthorne Food Company is a food and beverage provider.[BN]
The Plaintiff is represented by:
Michael A. LaBollita, Esq.
GOTTLIEB & ASSOCIATES
150 E. 18th Street, Suite Phr
New York, NY 10003
Phone: (212) 228-9795
Email: michael@gottlieb.legal
HELIX NUTRITION: Williams Files ADA Suit in S.D. New York
---------------------------------------------------------
A class action lawsuit has been filed against Helix Nutrition LLC.
The case is styled as Milton Williams, on behalf of himself and all
other persons similarly situated v. Helix Nutrition LLC, Case No.
1:21-cv-02304 (S.D.N.Y., March 16, 2021).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Helix Nutrition LLC -- https://www.helixnutrition.com/ -- is
located in Scottsdale, Arizona and is part of the Health Supplement
Stores Industry.[BN]
The Plaintiff is represented by:
Michael A. LaBollita, Esq.
GOTTLIEB & ASSOCIATES
150 E. 18th Street, Suite Phr
New York, NY 10003
Phone: (212) 228-9795
Email: michael@gottlieb.legal
HIGHLINE CONSTRUCTION: Arellano Files FLSA Suit in S.D. New York
----------------------------------------------------------------
A class action lawsuit has been filed against Highline Construction
Group, LLC, et al. The case is styled as Luis Arellano, Pedro Leon,
Balthazar Martinez, Kevin Vega, on behalf of themselves and those
similarly situated v. Highline Construction Group, LLC; Mark
Dobbin, in his individual and professional capacity, Case No.
1:21-cv-02318 (S.D.N.Y., March 17, 2021).
The lawsuit is brought over alleged violation of the Fair Labor
Standards Act.
Highline Construction Group -- https://highlinecg.com/ -- is a full
service construction management and general contracting firm
founded by Mark Dobbin to deliver craftsmanship to architects,
designers and property owners in New York's luxury residential
market.[BN]
The Plaintiffs appear pro se.
HOME DEPOT: Flores Suit Removed to S.D. California
--------------------------------------------------
The case captioned as Vergie Flores, as an individual and on behalf
of others similarly situated v. Home Depot U.S.A., Inc., a Delaware
limited liability company, Does 1-50, inclusive, Respondents, Case
No. 5:20-cv-02215 was removed from the U.S. District Court for
Central District of California, to the U.S. District Court for
Southern District of California on March 16, 2021.
The District Court Clerk assigned Case No. 3:21-cv-00462 to the
proceeding.
The nature of suit is stated as Other Labor.
The Home Depot, Inc., commonly known as Home Depot --
https://www.homedepot.com/ -- is the largest home improvement
retailer in the United States, supplying tools, construction
products, and services.[BN]
The Plaintiff is represented by:
Armond Marced Jackson, Esq.
JACKSON LAW, APC
16330 Bake Parkway
Irvine, CA 92618
Phone: (949) 281-6857
Fax: (949) 777-6218
Email: ajackson@jlaw-pc.com
The Defendants are represented by:
Jonathan S. Christie, Esq.
Victor A Salcedo, Esq.
Gregory W Knopp, Esq.
AKIN GUMP STRAUSS HAUER & FELD
1999 Avenue of the Stars, Suite 600
Los Angeles, CA 90067
Phone: (310) 229-1000
Fax: (310) 229-1001
Email: christiej@akingump.com
gknopp@akingump.com
HOSPITAL SERVICE: Appeals Court Affirms Summary Judgment in Leet
----------------------------------------------------------------
In the lawsuit styled VICTORIA LEET, INDIVIDUALLY AND ON BEHALF OF
ALL OTHERS SIMILARLY SITUATED v. HOSPITAL SERVICE DISTRICT NO. 1 OF
EAST BATON ROUGE PARISH, LOUISIANA D/B/A LANE REGIONAL MEDICAL
CENTER; ALEGIS REVENUE SOLUTIONS, LLC; AND LOUISIANA HEALTH SERVICE
& INDEMNITY COMPANY D/B/A BLUE CROSS AND BLUE SHIELD OF LOUISIANA,
Case No. 2020 CA 0745 (La. App.), the Court of Appeal of Louisiana,
First Circuit, affirms the trial court's judgment granting a motion
for reconsideration and a motion for summary judgment filed by
Defendant Lane Regional, thereby dismissing all of Leet's claims
with prejudice.
The matter initially came before the Appellate Court on appeal
filed by the Plaintiff, Leet v. Hospital Service District No. 1 of
East Baton Rouge Parish, 2018-1148 (La. App. 1st Cir. 2/28/19), 274
So.3d 583 ("Leet I").
On May 29, 2014, Victoria Leet was injured in an automobile
accident and received treatment at Lane Regional. At the time of
the accident, Leet was insured under the comprehensive medical
benefit plan of her husband's employer, Blue Cross, Louisiana
Machinery's self-funded plan was administered by Blue Cross, and
Louisiana Machinery purchased access to the Blue Cross contracted
healthcare provider network, which allows its insureds to seek
treatment from network providers at the contracted reimbursement
rate.
Thus, as a covered beneficiary of a plan participant, Leet was able
to obtain treatment from specific providers within the Blue Cross
preferred provider network for a reduced rate, with her only
responsibility being the applicable copay, deductible, or
coinsurance. Lane Regional is a contracted health care provider
with Blue Cross. Pursuant to its provider agreement with Blue
Cross, Lane Regional contractually agreed to accept these reduced
rates as payment in full for services provided to Blue Cross
insureds.
At the time of treatment, Leet presented her Blue Cross insurance
card to Lane Regional. However, on June 24, 2014, prior to
submitting a claim for its services to Blue Cross, Lane Regional,
through its accounts receivable contractor, asserted a lien, by
sending medical lien letters to Leet and her attorney, for the
full, undiscounted amount of $8,789.35 against any tort recovery
Leet may receive from a third party as a result of the automobile
accident. By check dated August 21, 2014, USAgencies Casualty
Insurance Company (USAgencies), the third-party automobile
liability insurer, issued a payment to Lane Regional for $8,789.35,
the full amount of the lien.
Meanwhile, on July 15, 2014, several weeks after asserting the
lien, Lane Regional filed an insurance claim with Blue Cross,
seeking reimbursement for the services provided to Leet.
Thereafter, on September 16, 2014, after initially pend/denying the
claim while awaiting additional information, Blue Cross paid Lane
Regional for the claim at the reduced, contracted reimbursement
rate of $1,477.74. Despite efforts by Leet's attorney to have Lane
Regional reimburse Leet the full amount of any payment over the
reduced, contracted rate for the services provided, Lane Regional
retained the full, undiscounted payment from USAgencies.
With regard to the payment of the reduced, contracted rate from
Blue Cross, Lane Regional, after first attempting to return the
$1,477.74 payment to Blue Cross, issued a refund to Leet on
December 1, 2014, in the amount of $1,477.74, as reimbursement of
the overpayment on her account.
Thereafter, on December 10, 2014, Leet filed a petition styled
Class Action Petition for Payment of a Thing Not Due, for Damages,
for Declaratory Relief, and for Injunctive Relief' in the Twentieth
Judicial District Court. Through original and amending petitions,
Leet named as defendants Lane Regional; Alegis Revenue Group, LLC,1
Lane Regional's accounts receivable contractor; and Blue Cross.
Regarding the claims against Lane Regional, Leet, individually and
on behalf of the class, alleged that Lane Regional, in filing a
lien and collecting the full, undiscounted rate for services
provided to Leet, violated LSA-R.S. 22:1874 of the Health Care
Consumer Billing and Disclosure Protection Act ("Balance Billing
Act"). As a result of these allegedly illegal billing practices by
Lane Regional, she alleged that she and those similarly situated
were entitled to repayment of all overpayments, damages for mental
anguish and emotional distress, loss of profits or use,
out-of-pocket expenses, and all other damages allowed by law, as
well as attorney's fees, costs, and expenses.
Leet, individually and on behalf of all others similarly situated,
also sought declaratory judgment, declaring that the practices of
Lane Regional were in violation of law and in breach of contract
and that all actions at law asserted by Lane Regional be deemed
unenforceable and cancelled, and preliminary and permanent
injunctive relief, enjoining Lane Regional from refusing to accept
a patient's health insurance when a patient has been involved in a
liability accident and from maintaining actions at law in violation
of LSA-R.S. 22:1874.
Subsequently, on December 15, 2014, five days after Leet filed
suit, but before service was perfected on Lane Regional, Lane
Regional issued a second payment to Leet in the amount of
$7,211.61, representing the remaining sums it had retained over the
contractually reduced reimbursement rate less Leet's $100
copayment.
After transfer of the suit from the Twentieth Judicial District
Court to the Nineteenth Judicial District Court, removal of the
suit to federal court, and a remand back to the state district
court, Lane Regional filed a motion for summary judgment on
February 23, 2018, contending that it was entitled to judgment in
its favor as a matter of law, dismissing the Plaintiff's claims
against it. Specifically, Lane Regional contended that: (1) as a
public entity, it was entitled to immunity pursuant to LSA-R.S.
9:2798.1; (2) it did not violate the Balance Billing Act, nor was
the Plaintiff entitled to general damages for its alleged violation
of the Act; (3) the Plaintiff's claims were moot because she
received full redress from Lane Regional; and (4) Lane Regional did
not breach any contract or quasi-contract for which the Plaintiff
would have a claim against it, nor did she sustain any compensable
damages for any alleged breach.
Following a hearing on the motion, the trial court found that
Leet's claims were moot because Lane Regional had reimbursed her
all amounts that could conceivably be due to her and, thus,
pretermitted ruling on Lane Regional's remaining arguments in
support of its motion. Because Leet was the only identified class
representative, the trial court, by judgment dated April 18, 2018,
granted Lane Regional's motion for summary judgment and dismissed
Leet's claims against it with prejudice.
The Plaintiff appealed the judgment dismissing all claims against
Lane Regional, and the Appeals Court reversed, finding that
material issues of fact existed and that the Defendant had not
addressed all of the Plaintiff's claims for relief.
On remand, Lane Regional, as the sole remaining defendant, filed a
second motion for summary judgment and sought to have the
Plaintiff's claims against it dismissed on the basis that: (1) Lane
Regional, as a public entity, is entitled to immunity from
liability under La. R.S. 9:2798.1 and (2) Lane Regional did not
violate the Balance Billing Act, as the Act is inapplicable. These
two issues were raised in the original summary judgment; however,
neither the trial court nor this Court reached the merits of the
applicability of the Balance Billing Act or immunity. A hearing was
held by the trial court at which time the motion was denied.
Thereafter, Lane Regional filed a motion for reconsideration of the
denial of the second motion for summary judgment, urging that the
Balance Billing Act was not applicable under the particular facts
of this case. By this time, the Plaintiff had filed the motion for
class certification, and the two motions were set for hearing on
the same date. After the hearing, the trial court took both motions
under advisement. The trial court later granted the motion for
reconsideration, thereby, granting Lane Regional's second motion
for summary judgment, and denied the Plaintiff's motion for class
certification. On November 12, 2019, the trial court signed a
judgment in favor of Lane Regional, denying the motion for class
certification, granting the motion for reconsideration, as well as
the second motion for summary judgment, and dismissing all claims
of the Plaintiff, with prejudice.
It is from the November 12, 2019 judgment that the Plaintiff
appeals and submits the following assignment of errors: (1) the
trial court erred in granting the second motion for summary
judgment and dismissing the matter when genuine issues of material
fact remain; (2) Lane Regional failed to address the Plaintiff's
claims for declaratory judgment or injunctive relief in the second
motion for summary judgment; and (3) the trial court erred in
concluding the Plaintiff was not entitled to protection from
balance billing in contravention of the Balance Billing Act.
Lane Regional maintains that the Plaintiff was not enrolled in or
insured by a "health insurance issuer" because her benefits were
received under a self-funded group plan. As the Appellate Court
previously noted, "health insurance issuer" is defined as "any
entity that offers health insurance coverage through a policy or
certificate of insurance subject to state law that regulates the
business of insurance."
While Louisiana Machinery is an entity offering health insurance
coverage, the health insurance coverage provided is not through a
policy or certificate of insurance subject to state law that
regulates the business of insurance, notes Judge Chris Hester,
writing for the Panel. In fact, it is not genuinely disputed that
the applicable employer plan is subject to the Employee Retirement
Income Security Act, 29 U.S.C. Section 1001, et seq.
Pursuant to ERISA's deemer clause, 29 U.S.C. Section 1144(b)(2)(B),
ERISA plans are expressly prohibited from being deemed an insurance
company or other insurer for purposes of any state law purporting
to regulate insurance companies or contracts. In FMC Corp. v.
Holliday, 498 U.S. 52, 61; 111 S.Ct. 403, 409; 112 L.Ed.2d 356
(1990), the United State Supreme Court held that the deemer clause
exempted self-funded ERISA plans, like the Louisiana Machinery plan
in this case, from state laws regulating insurance within the
meaning of the savings clause such that self-funded ERISA plans are
exempt from state regulation insofar as that regulation relates to
the plans, Judge Hester explains. Therefore, Louisiana Machinery is
not a health insurance issuer as that term is defined in La. R.S.
22:1872(19).
Judge Hester finds that the Plaintiff was not enrolled in or
insured by a "health insurance issuer" for health insurance
coverage and does not meet the definition of "enrollee" or
"insured." Consequently, the Plaintiff cannot maintain a private
right of action under the Balance Billing Act.
All of the Plaintiff's claims for relief against Lane Regional,
including those for injunctive and declaratory relief, were based
on the same theory of recovery and dependent upon the applicability
of the Balance Billing Act, which was an issue not considered by
the Appellate Court in Leet I.
Because the Act does not apply, the Plaintiff's claims against Lane
Regional in this case cannot be maintained, Judge Hester holds.
Lane Regional was entitled to judgment as a matter of law, and the
Appellate Court finds no error in the trial court's granting of
Lane Regional's second motion for summary judgment and dismissal of
all of the Plaintiff's claims.
Based on these reasons, the Appellate Court affirms the November
12, 2019 judgment of the trial court granting the motions for
reconsideration and summary judgment in favor of Hospital Service
District No. 1 of East Baton Rouge Parish, Louisiana d/b/a Lane
Regional Medical Center and dismissing all of the Plaintiff's
claims, with prejudice. All costs of this appeal are assessed to
the Plaintiff, Victoria Leet.
A full-text copy of the Court's Opinion dated Feb. 25, 2021, is
available at https://tinyurl.com/3pzw3wek from Leagle.com.
J. Lee Hoffoss, Jr., Donald W. McKnight, in Lake Charles,
Louisiana; Derrick G. Earles, in Lafayette, Louisiana; Scott R.
Bickford -- info@mbfirm.com -- Lawrence J. Centola, III, in New
Orleans, Louisiana; and Andrew J. D'Aquilla, in St. Francisville,
Louisiana, Attorneys for Plaintiff-Appellant, Victoria Leet,
Individually and on, behalf of all others similarly situated.
Thomas R. Temple, Jr. -- thomas.temple@bswllp.com -- David R. Kelly
-- david.kelly@bswllp.com -- Joseph J. Cefalu --
joseph.cefalu@bswllp.com -- in Baton Rouge, Louisiana, Attorneys
for Defendant-Appellee, Hospital Service District No. 1 of East,
Baton Rouge Parish, Louisiana d/b/a, Lane Regional Medical Center.
ICONSOFBOXING.COM: Williams Files ADA Suit in S.D. New York
-----------------------------------------------------------
A class action lawsuit has been filed against Iconsofboxing.com.
The case is styled as Milton Williams, on behalf of himself and all
other persons similarly situated v. Iconsofboxing.com, a Limited
Liability Company, Case No. 1:21-cv-02306-ALC (S.D.N.Y., March 16,
2021).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Iconsofboxing.com -- https://www.iconsofboxing.com/ -- offers
authentic pieces of boxing memorabilia, including autographed
Boxing Gloves, Trunks, photos and more.[BN]
The Plaintiff is represented by:
Jeffrey Michael Gottlieb, Esq.
Michael A. LaBollita, Esq.
GOTTLIEB & ASSOCIATES
150 E. 18th Street, Suite Phr
New York, NY 10003
Phone: (212) 228-9795
Email: nyjg@aol.com
michael@gottlieb.legal
ILLINOIS: Bid for Summary Judgment in Wallace Suit v. DOC Granted
-----------------------------------------------------------------
In the case, CORRIE WALLACE, and RAVAEL E. SANTOS, JR., Plaintiffs
v. JOHN BALDWIN, et al., Defendants, Case No. 18-cv-1513-NJR (S.D.
Ill.), Judge Nancy J. Rosenstengel of the U.S. District Court for
the Southern District of Illinois grants the Defendants' Motion for
Summary Judgment on Exhaustion of Administrative Remedies.
On Aug. 17, 2018, Plaintiffs Santos and Wallace, inmates of the
Illinois Department of Corrections ("IDOC") who are currently
housed at Menard Correctional Center, filed their original
Complaint pursuant to 42 U.S.C. Section 1983 alleging that at
various times they have been housed in constitutionally deficient
cells located within the North I and North II cell houses at
Menard. The Plaintiffs, who are represented by counsel, are
proceeding on their Third Amended Complaint, a purported class
action.
The Plaintiffs' claims include the following:
a. Count I: Claim for permanent injunctive relief against Rob
Jeffreys in his official capacity as the Director of IDOC and
Anthony Wills in his official capacity as the Warden of Menard,
seeking an order permanently preventing IDOC from double-celling
inmates in the North I and North II cell houses.
b. Count II: Claim for permanent injunctive relief against Rob
Jeffreys in his official capacity as the Director of IDOC and
Anthony Wills in his official capacity as the Warden of Menard,
seeking an order requiring IDOC to fix the ventilation in the North
I and North II cell houses such that the cells are adequately
heated. In the alternative, if such repairs are impossible or
impractical, the Plaintiffs seek an order barring IDOC from housing
inmates in the North I and North II cell houses.
c. Count III: Eighth Amendment claim against John Baldwin,
Jacqueline Lashbrook, Alex Jones, Jeffery Hutchinson, Rob Jeffreys,
and Kimberly Butler in their individual capacities, seeking
compensatory and punitive damages for the unconstitutional
conditions of confinement in North I and North II.
d. Count IV: Eighth Amendment claim against John Baldwin,
Jacqueline Lashbrook, Alex Jones, Jeffery Hutchinson, Rob Jeffreys,
and Kimberly Butler in their individual capacities, seeking nominal
and punitive damages for the unconstitutional conditions of
confinement in North I and North II (alternative to Count III).
The Defendants contend that Santos failed to exhaust his
administrative remedies as to all claims because (1) the grievance
dated June 21, 2017 that Santos claims he submitted was never
submitted and, in the alternative, the grievance was not
sufficiently detailed and (2) the grievance dated Dec. 25, 2018
that was received by Menard's grievance office was procedurally
deficient.
The Defendants concede that Wallace exhausted his administrative
remedies with respect to his official capacity claims in Counts I
and II, and with respect to the claims directed against Lashbrook
and Baldwin in their individual capacities in Counts III and IV.
They claim, however, that Wallace failed to exhaust his
administrative remedies as to the individual capacity claims
directed against Butler, Hutchinson, Jeffreys, and Jones in Counts
III and IV. With respect to these claims, they argue that the
grievance submitted by Wallace, dated Jan. 12, 2018, could not have
exhausted individual capacity claims directed against Butler,
Hutchinson, Jeffreys, or Jones for their role as former wardens of
Menard, because none of these officials was employed as the warden
of Menard at any time during the 60-day period preceding Wallace's
January 2018 grievance. The Defendants further contend that, for
the same reasons, the June 21, 2017 grievance allegedly submitted
by Santos could not have exhausted any claims directed against
Butler, Hutchinson, Jeffreys, or Jones in their individual
capacities.
The Plaintiffs contend that the exhaustion requirement does not
apply to them because other inmates, such as Gregory Turley (Case
No. 3:08-cv-00007-SCW), previously filed grievances and lawsuits
involving the same conditions at issue in the instant case.
According to them, these prior grievances and/or lawsuits put
certain defendants on notice of the conditions at issue in the case
and relieved them of the duty to exhaust because the administrative
process was unavailable to them and/or because inmates need not
submit redundant grievances about ongoing conditions. The
Defendants disagree, arguing that that the grievance process did
not become unavailable or duplicative to the Plaintiffs merely
because a different inmate previously complained about the same
conditions at Menard.
Alternatively, Santos contends that the grievance he allegedly
submitted in June 2017 is sufficient to exhaust administrative
remedies as to the claims at issue in the action. He did not raise
any argument regarding the grievance dated Dec. 25, 2018.
Additionally, neither the Plaintiff addressed the Defendants'
argument regarding the individual capacity claims directed against
Butler, Hutchinson, Jeffreys, and Jones in Counts III and IV.
Prior to assessing whether each Plaintiff has exhausted his
administrative remedies with respect to the claims at issue in the
case, Judge Rosenstengel addresses a preliminary matter as to Rob
Jeffreys. On Nov. 14, 2019, pursuant to Federal Rule of Civil
Procedure 25(d), Jeffreys was substituted as an official capacity
defendant in Counts I and II. On April 8, 2020, the Plaintiffs
filed their Third Amended Complaint naming Jeffreys as a defendant
in his individual capacity in Counts III and IV. They, however,
have not served Jeffreys for the claims alleged against him in his
individual capacity, and the counsel has only appeared for Jeffreys
in his official capacity.
Because Jeffreys has not been served with process or entered an
appearance in his individual capacity, he is a nonmovant with
respect to the Defendants' Motion for Summary Judgment as to Counts
III and IV. The moving Defendants' arguments, however, apply with
equal force to the claims made against Jeffreys in his individual
capacity. The Defendants' Motion provides sufficient notice that
both Santos and Wallace failed to exhaust individual capacity
claims as to Jeffreys. Accordingly, the Judge assesses whether the
Plaintiffs exhausted administrative remedies as to the individual
capacity claims directed against Jeffreys in Counts III and IV and,
if appropriate, grant summary judgment as to those claims.
First, the Plaintiffs contend they should be excused from the
exhaustion requirement because no administrative remedy was
available for their duplicative cell size claims and/or because
prisoners are not required to submit redundant grievances about
ongoing conditions. To support this argument, they rely on
grievances and lawsuits filed by other inmates. The Plaintiffs
contend Menard officials have an extensive history of rejecting
complaints filed by other inmates pertaining to cell conditions in
North I and North II, and hence pursuit of their own administrative
grievances would have been duplicative or redundant. They also
suggest that Menard's allegedly systemic denial of such grievances
rendered the grievance process unavailable to them.
Judge Rosenstengel finds that the Plaintiffs cannot establish
exhaustion by relying on the grievances of different prisoners who
previously pursued similar claims. Rather, to survive summary
judgment on the issue of exhaustion, Santos and Wallace must each
establish that they personally exhausted the grievance process.
Second, according to Santos, the grievance "at the center" of his
claims is an emergency grievance he submitted to Menard officials
on June 21, 2017 by placing it in the bars of his cell during third
shift. Santos claims that, after receiving no response, he
submitted three follow-up letters directed to Lashbrook dated July
1, 2017, July 17, 2017, and Aug. 4, 2017 (Docs. 100; 100-1).
The records of the Administrative Review Board ("ARB") submitted by
the Defendants reflect that no grievances were submitted by Santos
in 2017. Further, the kite log submitted by the Defendants and the
accompanying declaration of Julie Eggemeyer show no records exist
suggesting that Santos ever submitted any of the alleged follow-up
letters to Lashbrook. The Defendants also argues that Santos
failed to properly exhaust the grievance he filed an "emergency"
grievance dated Dec. 25, 2018 pertaining to his conditions of
confinement. Santos does not respond to this argument and does not
mention the Dec. 25, 2018 grievance at any point in his briefing.
Considering the record as a whole, the Judge holds that the
Defendants have submitted sufficient evidence to show that Santos
did not file the June 21, 2017 grievance, and he did not submit the
alleged follow-up letters to the warden. Moreover, she finds there
is no credible evidence suggesting that Santos filed the June 21,
2017 grievance or sent the alleged follow-up letters to the warden.
Accordingly, the Judge finds that Santos failed to exhaust his
administrative remedies and therefore dismisses all of his claims
without prejudice.
Third, the Defendants concede that Wallace's grievance, dated Jan.
12, 2018, is sufficient to exhaust his administrative remedies with
respect to Counts I and II (official capacity claims against
Jeffreys and Wills), and with respect to the claims directed
against Lashbrook and Baldwin in their individual capacities in
Counts III and IV. However, they argue that the Jan. 12, 2018
grievance cannot serve to exhaust Wallace's claims directed against
Butler (former warden of Menard from April 2014 through October
2016), Hutchinson (former warden of Menard from October 2016
through December 2016), and Jones (acting warden of Menard in
January 2017 and warden of Menard in 2019) in Counts III and IV in
their individual capacities. Also, the Defendants also contend
that the same argument prevents Wallace from exhausting any
individual capacity claims directed against Jeffreys (warden of
Menard in May 2019).
In responding to Defendants' Motion for Summary Judgment, Wallace
did not address this argument. At the hearing, the counsel
acknowledged that he failed to respond to this argument but claimed
that, despite the failure to submit a grievance, the individual
capacity claims are valid because, at some point, Wallace was
housed in North I and North II.
The Judge Court finds that Wallace could not have exhausted his
administrative remedies as to the individual capacity claims
directed against Butler, Hutchinson, Jones, and Jeffreys because
these officials were not employed at Menard at any time during the
60-day period before the Jan. 12, 2018 grievance. Further, as to
Jones and Jeffreys, Wallace's grievance cannot serve to exhaust
claims regarding conduct that occurred approximately one year after
the grievance was filed. Alternatively, the Judge finds that
Wallace forfeited any argument on this issue. He did not respond
to the argument in his briefing, and the counsel's attempt to
address the matter at the hearing was perfunctory and undeveloped.
For these reasons, the Judge finds that Wallace failed to exhaust
his administrative remedies with respect to the individual capacity
claims directed against Butler, Hutchinson, Jones, and Jeffreys in
Counts III and IV and therefore dismisses these claims without
prejudice.
Based on the foregoing, Judge Rosenstengel grants the Defendants'
Motion for Summary Judgment on Exhaustion of Administrative
Remedies. She dismisses without prejudice Santos' claims in Counts
1 through 4 for failure to exhaust administrative remedies; and
dismisses without prejudice Wallace' claims in Counts III and IV
against Butler, Hutchinson, Jones, and Jeffreys for failure to
exhaust administrative remedies.
The Judge directs the Clerk to terminate Santos, Butler,
Hutchinson, and Jones as parties in the Court's Case
Management/Electronic Case Filing (CM/ECF) system. She advises the
parties that the only claims remaining in the case are Wallace's
official capacity claims directed against Jeffreys and Wills in
Counts I and II, and Wallace's individual capacity claims directed
against Lashbrook and Baldwin in Counts III and IV.
A full-text copy of the Court's March 10, 2021 Memorandum & Order
is available at https://tinyurl.com/yea8dzpk from Leagle.com.
INTERACTIVE BROKERS: Extension to File Class Status Bid Sought
--------------------------------------------------------------
In the class action lawsuit captioned as ROBERT SCOTT BATCHELAR
Individually and on behalf of all others similarly situated, v.
INTERACTIVE BROKERS, LLC, INTERACTIVE BROKERS GROUP, INC., and
THOMAS A. FRANK, Case No. 3:15-cv-01836-AWT (D. Conn.), the Parties
jointly move the Court to modify the Scheduling Order, dated
October 5, 2020, to extend the deadlines by an additional 11 weeks
based on provided special COVID-19 related provisions as follows:
Scheduling Order Current Modified
Deadline Deadline
Completion of fact April 12, 2021 June 28, 2021
depositions and discovery
responses related to
class certification:
The Plaintiff's designation May 10, 2021 July 26, 2021
of class certification
expert(s) and expert
report(s):
The Plaintiff must produce June 9, 2021 August 25, 2021
expert(s) for
deposition(s):
The Defendants' designation June 28, 2021 Sept. 13, 2021
of class certification
expert(s) and expert
report(s):
The Defendants must July 12, 2021 Sept. 27, 2021
produce expert(s) for
deposition(s):
The Plaintiff's motion August 16, 2021 Nov. 1, 2021
for class certification
The Defendants' opposition Sept. 13, 2021 Nov. 29, 2021
to motion for class
certification:
The Plaintiff's reply Sept. 27, 2021 Dec. 13, 2021
to opposition to motion
for class certification:
A copy of the Parties motion to certify class dated March 8, 2020
is available from PacerMonitor.com at https://bit.ly/38TPg0n at no
extra charge.[CC]
The Plaintiff is represented by:
Gary N. Reger, Esq.
ORGAIN, BELL AND TUCKER, LLP
207 San Jacinto Blvd., Suite 301
Austin, TX 78701
Telephone: (512) 861-0441
E-mail: gnr@obt.com
- and -
L. DeWayne Layfield, Esq.
LAW OFFICE OF L. DEWAYNE LAYFIELD, PLLC
P.O. Box 3829
Beaumont, TX 77704
Telephone: (409) 832-1891
E-mail: dewayne@layfieldlaw.com
- and -
Reagan Reaud, Esq.
REAUD & ASSOCIATES, PC
207 San Jacinto, Suite 301
Austin, TX 78701
Telephone: (512) 322-9187
E-mail: regan@warlegal.com
- and -
William M. Bloss, Esq.
Christopher M. Mattei, Esq.
KOSKOFF, KOSKOFF & BIEDER, P.C.
350 Fairfield Avenue
Bridgeport, CT 06604
Telephone: (203) 336-4421
Facsimile: (203) 368-3244
E-mail: bbloss@koskoff.com
cmattei@koskoff.com
The Defendants are represented by:
Gary J. Mennitt, Esq.
DECHERT LLP
1095 Avenue of the Americas
New York, NY 10036
Telephone: (212) 698-3500
Facsimile: (212) 698-3599
E-mail: gary.mennitt@dechert.com
- and -
Thomas D. Goldberg, Esq.
Andraya Pulaski Brunau, Esq.
DAY PITNEY LLP
242 Trumbull Street
Hartford, CT 06103
Telephone: (860) 275-0100
Facsimile: (860) 275-0343
E-mail: tgoldberg@daypitney.com
abrunau@daypitney.com
IRVINGTON SUPERIOR: Assoc. Seeks Pay for Time Spent on COVID Tests
------------------------------------------------------------------
Irvington Superior Officers Association, individually and on behalf
of all others similarly situated, Plaintiff, v. Township of
Irvington, Defendants, Case No. 21-cv-02760 (D. N.J., February 18,
2021), seeks overtime compensation for time spent obtaining
COVID-19 tests while off duty pursuant to the Fair Labor Standards
Act of 1938 and New Jersey Wage and Hour Law.
Irvington Superior Officers Association is a collective
negotiations association that represents all full-time regularly
employed police officers holding the rank of Sergeant, Lieutenant,
Captain, and Deputy Chief in the Township of Irvington and has
entered into a series of collective negotiations agreements with
the latter since at least 1999.
Irvington has required COVID-19 tests every two weeks. As this
procedure entails time, the association contends that this be
compensable and should be considered as overtime if done after the
officer's shift. [BN]
Plaintiff is represented by:
James T. Prusinowski, Esq.
TRIMBOLI & PRUSINOWSKI, LLC
268 South Street
Morristown, NJ 07960
Tel: (973) 660-1095
Email: jprusinowski@trimprulaw.com
JEFFERSON CAPITAL: Mermelstein Files FDCPA Suit in S.D. Florida
---------------------------------------------------------------
A class action lawsuit has been filed against Jefferson Capital
Systems, LLC, et al. The case is styled as Jacob Mermelstein,
individually and on behalf of all others similarly situated v.
Jefferson Capital Systems, LLC, John Does 1-25, Case No.
1:21-cv-21028-XXXX (S.D. Fla., March 16, 2021).
The lawsuit is brought over alleged violation of the Fair Debt
Collection Practices Act.
Jefferson Capital Systems, LLC -- https://www.myjcap.com/ -- is a
debt collector.[BN]
The Plaintiff is represented by:
Justin E. Zeig, Esq.
ZEIG LAW FIRM, LLC
3475 Sheridan Street, Suite 310
Hollywood, FL 33024
Phone and Fax: (754) 217-3084
Email: justin@zeiglawfirm.com
JOHN CHRISTNER: 10th Cir. Appeal Filed in Huddleston FLSA Suit
--------------------------------------------------------------
Defendant JOHN CHRISTNER TRUCKING, LLC filed an appeal from a court
ruling entered in the lawsuit entitled THOMAS HUDDLESTON,
individually and on behalf of all others similarly situated v. JOHN
CHRISTNER TRUCKING, LLC, Case No. 4:17-CV-00549-GKF-CDL, in the
United States District Court for the Northern District of Oklahoma
- Tulsa.
As previously reported in the Class Action Reporter, the lawsuit
challenges, among other things, the Defendant's policy and practice
of unlawfully misclassifying its non-exempt hourly driver employees
as independent contractors, who are exempt from the provisions of
the Fair Labor Standards Act and California wage and hour laws.
The Defendant seeks a review of the Court's Order denying its
motion to stay.
The appellate case is captioned as Huddleston v. John Christner
Trucking, LLC, Case No. 21-5023, in the United States Court of
Appeals for the Tenth Circuit, March 11, 2021.
The briefing schedule in the Appellate Case states that:
-- Docketing statement, transcript order form and notice of
appearance are due on March 25, 2021 for John Christner Trucking,
LLC; and
-- Notice of appearance also due on March 25, 2021 for Thomas
Huddleston, LLC.[BN]
Plaintiff-Appellee THOMAS HUDDLESTON, individually and on behalf of
all others similarly situated, is represented by:
Michael J. Blaschke, Esq.
LAW GROUP JOINT VENTURE
3037 NW 63rd Street, Suite 205
Oklahoma City, OK 73116
Telephone: (405) 562-7771
E-mail: mblaschke@thelawgroupokc.com
- and -
Robert S. Boulter, Esq.
LAW OFFICES OF ROBERT S. BOULTER
1101 5th Ave. Suite 235
San Rafael, CA 94901
Telephone: (415) 233-7100
E-mail: rsb@boulter-law.com
- and -
Carolyn H. Cottrell, Esq.
David C. Leimbach, Esq.
Michelle S. Lim, Esq.
SCHNEIDER WALLACE COTTRELL KONECKY
2000 Powell Street, Suite 1400
Emeryville, CA 94608
Telephone: (415) 421-7100
E-mail: ccottrell@schneiderwallace.com
dleimbach@schneiderwallace.com
mlim@schneiderwallace.com
- and -
Rachel Lawrence Mor, Esq.
RACHEL LAWRENCE MOR, P.C.
3555 N.W. 58th Street, Suite 1000
Oklahoma City, OK 73112
Telephone: (405) 562-7771
E-mail: rmor@thelawgroupokc.com
Defendant-Appellant JOHN CHRISTNER TRUCKING, LLC is represented
by:
Angela Stemle Cash, Esq.
Christopher Eckhart, Esq.
Alaina C. Hawley, Esq.
Karen B. Reisinger, Esq.
SCOPELITIS GARVIN LIGHT HANSON & FEARY
10 West Market Street, Suite 1400
Indianapolis, IN 46204-2965
Telephone: (317) 637-1777
E-mail: acash@scopelitis.com
ceckhart@scopelitis.com
ahawley@scopelitis.com
kreisinger@scopelitis.com
- and -
James LeRoy Colvin, III, Esq.
SECREST HILL BUTLER & SECREST
7134 South Yale Avenue, Suite 900
Tulsa, OK 74136
Telephone: (918) 494-5905
- and -
Bobby Leon Latham, Jr., Esq.
LATHAM, WAGNER, STEELE & LEHMAN
10441 South Regal Boulevard, Suite 200
Tulsa, OK 74133
Telephone: (918) 970-2000
E-mail: blatham@lswsl.com
JUAN BARCENAS: Tremols Files FLSA Suit in W.D. Arkansas
-------------------------------------------------------
A class action lawsuit has been filed against Juan Barcenas
Insurance, et al. The case is styled as Carlos Tremols,
individually and on Behalf of All Others Similarly Situated v. Juan
Barcenas Insurance, Financial Services, LLC, Juan Barcenas, Case
No. 5:21-cv-05057-PKH (W.D. Ark., March 17, 2021).
The lawsuit is brought over alleged violation of the Fair Labor
Standards Act.
Juan Barcenas Insurance -- http://www.myarkansasagent.com/-- is an
insurance agency in Springdale, Arkansas.[BN]
The Plaintiff appears pro se.
KBR INC: SSI Request for Suspension of Award Enforceability OK'd
----------------------------------------------------------------
KBR, Inc. said in its Form 10-K report filed with the U.S.
Securities and Exchange Commission on February 25, 2021, for the
fiscal year ended December 31, 2020, that Subsahara Services,
Inc.'s ("SSI") request for suspension on the enforceability of the
award from the Chadian Supreme Court was granted.
In May 2018, former employees of the company's former Chadian
subsidiary, SSI", filed a class action suit claiming unpaid damages
arising from the ESSO Chad Development Project for Exxon Mobil
Corporation dating back to the early 2000s.
Exxon is also named as a defendant in the case. The SSI employees
previously filed two class action cases in or around 2005 and 2006
for alleged unpaid overtime and bonuses.
The Chadian Labour Court ruled in favor of the SSI employees for
unpaid overtime resulting in a settlement of approximately $25
million which was reimbursed by Exxon under its contract with SSI.
The second case for alleged unpaid bonuses was ultimately dismissed
by the Supreme Court of Chad.
The current case claims $122 million in unpaid bonuses
characterized as damages rather than employee bonuses to avoid the
previous Supreme Court dismissal and a 5-year statute of
limitations on wage-related claims. SSI's initial defense was filed
and a hearing was held in December 2018. A merits hearing was held
in February 2019.
In March 2019, the Labour Court issued a decision awarding the
plaintiffs approximately $34 million including a $2 million
provisional award. Exxon and SSI have appealed the award and
requested suspension of the provisional award which was approved on
April 2, 2019. Exxon and SSI filed a submission to the Court of
Appeal on June 21, 2019 and filed briefs at a hearing on February
28, 2020. The plaintiffs failed to file a response on March 13,
2020 and a hearing was scheduled for April 17, 2020. The hearing
was postponed due to COVID-19 but took place on September 18, 2020.
On October 9, 2020 the appellate court of Moundou awarded the
plaintiffs approximately $19 million. SSI filed an appeal of this
decision to the Chadian Supreme Court on December 28, 2020.
SSI's request for suspension on the enforceability of the award
from the Chadian Supreme Court was granted on January 4, 2021 and
therefore there is no current risk of enforcement of the judgment.
KBR said, "At this time, we do not believe a risk of material loss
is probable related to this matter. SSI is no longer an existing
entity in Chad or the United States. Further, we believe any
amounts ultimately paid to the former employees related to this
adverse ruling would be reimbursable by Exxon based on the
applicable contract."
KBR, Inc. is a global engineering, construction, and services
company supporting the energy, petrochemicals, government services,
and civil infrastructure sectors. The Company offers a wide range
of services through two business segments, Energy and Chemicals
(E&C) and Government and Infrastructure (G&I). The company is based
in Houston, Texas.
KPC HEALTHCARE: Gamino Must File Class Status Bid by May 19
-----------------------------------------------------------
In the class action lawsuit captioned as DANIELLE GAMINO,
individually and on behalf of all others similarly situated, v. KPC
HEALTHCARE HOLDINGS, INC., KPC HEALTHCARE, INC. EMPLOYEE STOCK
OWNERSHIP PLAN COMMITTEE, ALERUS FINANCIAL, N.A., KALI PRADIP
CHAUDHURI, KALI PRIYO CHAUDHURI, AMELIA HIPPERT, WILLIAM E. THOMAS,
LORI VAN ARSDALE, Defendants, and KPC HEALTHCARE, INC. EMPLOYEE
STOCK OWNERSHIP PLAN, Nominal Defendant, Case No.
5:20-cv-01126-SB-SHK (C.D. Calif.), the Hon. Judge Stanley
Blumenfeld Jr. entered an order granting stipulation re briefing
schedule for class certification as follows:
1. The Plaintiff shall file her Motion for Class
Certification and supporting papers on or before May 19,
2021.
2. The Defendants will file their Opposition(s) to the
Plaintiff's Motion for Class Certification by June 16,
2021 (or four weeks after the Plaintiff's motion).
3. If the Defendants have filed more than one Opposition,
then the Plaintiff may file a consolidated Reply brief
(with a page limit that would not exceed the number of
pages allowed for two separate Reply briefs).
4. The Plaintiff will file her reply brief(s) in further
support of Class Certification by July 9, 2021 (or three
weeks before the hearing).
5. The hearing on Plaintiff's Motion for Class Certification
is hereby set for July 30, 2021.
6. So that the Parties can have a meaningful conference of
counsel pursuant to Local Rule 7-3, the Defendants will
take Plaintiff Gamino's deposition prior to the deadline
for the pre-motion conference.
KPC Healthcare, Inc. provides health care services. The Hospital
offers laboratory, pathology, surgical, medical care, and social
services.
A copy of the Court's order dated March 8, 2020 is available from
PacerMonitor.com at https://bit.ly/3s2ghpZ at no extra charge.[CC]
LA FUENTE INC: Nevada Sup. Court Flips Summary Judgment in Dancer
-----------------------------------------------------------------
In the lawsuit entitled JANE DOE DANCER I; JANE DOE DANCER II; JANE
DOE DANCER III; AND JANE DOE DANCER V, INDIVIDUALLY, AND ON BEHALF
OF A CLASS OF SIMILARLY SITUATED INDIVIDUALS, Appellants v. LA
FUENTE, INC., AN ACTIVE CORPORATION, Respondent, Case No. 78078
(Nev.), the Supreme Court of Nevada reverses the district court's
ruling granting summary judgment in favor of the Respondent.
The case is a sequel to Terry v. Sapphire Gentlemen's Club, which
adopted the federal economic realities test to guide courts in
determining whether an employment relationship exists in the
context of Nevada's statutory minimum wage laws, NRS Chapter 608.
130 Nev. 879, 888, 336 P.3d 951, 958 (2014).
Applying that test to the provisions of NRS Chapter 608 as they
then existed, the Supreme Court held that performers at the
Sapphire men's club were employees, not independent contractors
and, accordingly, entitled to statutory minimum wages under that
chapter. The Legislature subsequently enacted NRS 608.0155, which
established "for the purposes of NRS Chapter 608" a conclusive
presumption of independent contractor status for certain workers
meeting specified criteria, regardless of whether those workers
might otherwise qualify as employees under Terry and the economic
realities test, thus, expanding the ranks of independent
contractors and excluding previously qualifying workers from
statutory minimum wage protections.
In the appeal, the Appellants (Doe Dancers) similarly argue they
are in fact employees, not independent contractors, but this time
within the context of Article 15, Section 16 of the Nevada
Constitution, the Minimum Wage Amendment (MWA), rather than NRS
Chapter 608. The extent of the MWA's reach is a question Terry left
open, and to which NRS 608.0155's application is less obvious.
Accordingly, to resolve Doe Dancers' appeal, the Supreme Court must
again interpret the term "employee," this time pursuant to the MWA,
apply that interpretation to the circumstances at issue here, and
then determine whether NRS 608.0155's statutory expansion of the
definition of independent contractor--which is the opposite side of
employee on the relational coin, see, e.g., Debra T. Landis,
Annotation, Determination of "Independent Contractor" and
"Employee" Status for Purposes of Section 3(3)(1) of the Fair Labor
Standards Act (29 USCS Section 203(e)(1)), 51 A.L.R. Fed. 702
(1981) (collecting cases)--excludes workers who would otherwise be
MWA employees from its protections.
Background
Each of the Doe Dancers has, at some point, performed at Cheetahs
Lounge, a men's club owned by Respondent La Fuente, Inc.
(Cheetahs). Each Doe Dancer performed at the venue for a different
period of time and with differing experience. But, according to
testimony by Cheetahs' operations manager, Diana Ponterelli,
Cheetahs permitted the Doe Dancers to dance there based on certain
shared qualifications--specifically, they showed up with a valid
sheriffs card, state ID, work license, and costume, were not
"trashed," and were "standing up." Cheetahs did not require that
any Doe Dancer have prior dance training. Cheetahs did not check
any Doe Dancer's references or employment history. Cheetahs did not
ask that any Doe Dancer audition--not even "just to turn in
circles"--before Cheetahs gave her a shift.
The moment Doe Dancers' respective shifts began, however, Cheetahs'
tone changed. The club imposed controls on Doe Dancers beginning at
the door--requiring that they pay a "house fee" at entry, as well
as an "off stage fee," or else check-in with the D.J. for on-stage
rotation. Myriad written and posted limitations on the Doe Dancers'
costumes and performances met them inside the club, including
setting a minimum heel height of two-inches, and prohibiting clog
type shoes and street clothes. The posted rules carried on
addressing dancer manners, including "Keep feet off the furniture,"
"Working together is very important," and "Do not walk up to a
customer and just ask him for a dance, talk to them, get to know
him a little leave a great and lasting impression. Sit at least one
song with them first."
Judge Kristina Pickering, writing for the Panel, notes that the
record does not allow for misunderstanding--Ponterelli's testimony
and the management log book clearly demonstrate that these rules
were enforced as posted. Indeed, even above and beyond those posted
rules, Cheetahs seems to have set less tangible standards for the
Doe Dancers, with the log book indicating that multiple performers
were prohibited from dancing at the club or otherwise disciplined
for having a "bad attitude," "offending male customers," being
"total ghetto," acting like a "prima donna," being "very
disrespectable to management," or having a "poor, rude, nasty
attitude toward staff." And Ponterelli similarly testified that a
central characteristic shared by prospective performers, who
Cheetahs ultimately did not allow to dance was a perceived
"attitude" problem.
Before dancing at Cheetahs, each Doe Dancer was required to sign a
"Dancer Performer's Lease" agreement with Cheetahs. Under these
agreements (1) Cheetahs purports to "lease to Performer and
Performer leases from Cheetahs the non-exclusive right during
normal business hours to use the stage area and certain other
portions of Cheetahs' premises for the performing of live nude
and/or semi-nude entertainment"; and (2) any employment
relationship is "Specifically Disavowed."
Judge Pickering finds that nothing in these agreements diminishes
the control that Cheetahs reserved the right to exert through its
posted rules and commentary. To the contrary, the form of lease
agreements the dancers signed specified that Cheetahs "shall have
the right to impose rules and regulations upon the use of Cheetahs
by a performer in its sole and absolute discretion."
Despite their having contractually "disavowed" any employment
relationship with Cheetahs in the Lease agreement, the Doe Dancers
claimed they were, in fact, employees within the legal meaning of
the term. They accordingly demanded minimum wages from the club,
which Cheetahs refused to pay because it considered them
independent contractors.
As a result, the Doe Dancers brought the underlying class action,
in which the Doe Dancers and Cheetahs filed cross motions for
summary judgment. The Doe Dancers sought a ruling that they were
employees rather than independent contractors, as a matter of law,
and entitled to minimum wages under both NRS Chapter 608 and the
MWA; Cheetahs sought a ruling that the Doe Dancers were
conclusively presumed to be independent contractors pursuant to NRS
608.0155's expanded definition of the phrase, and, therefore, not
employees or eligible for the minimum wages demanded.
The district court concluded that NRS 608.0155 applied to the Doe
Dancers, rendering them independent contractors ineligible for
minimum wages under the MWA, and granted the club's motion for
summary judgment while denying the Doe Dancers' cross motion. The
appeal followed.
As noted, in Terry, the Supreme Court determined that certain
performers--laboring under circumstances largely similar to those
of the Doe Dancers--were "employees" within the meaning of NRS
Chapter 608 (governing "Compensation, Wages and Hours"), not
independent contractors as Sapphire had classified them, such that
they were entitled to the state statutory minimum wage. And in the
district court, the Doe Dancers demanded both statutory minimum
wages in accordance with Terry and constitutional minimum wages
pursuant to the MWA, the proper application of which Terry left
unanswered.
On appeal, however, the Doe Dancers have abandoned their
statute-based claims, instead relying solely on the constitutional
protections the MWA extends to "employees." This raises, as a
question of first impression, the extent of the MWA'S reach and
because the district court denied the Doe Dancers' motion for
summary judgment and granted Cheetahs' on the ground that NRS
608.0155, which the Legislature enacted in 2015, applied to negate
both categories of the Doe Dancers' claims, the resolution of this
appeal likewise involves questions of the constitutional supremacy
of the MWA, which was first approved by voters in the 2004 general
election.
In Terry, despite expressly noting the divergence between the
language of NRS 608.010 and 29 U.S.C. Section 203(e)(1) of the Fair
Labor Standards Act (FLSA), the Supreme Court looked to federal
case law interpreting the FLSA to understand the former,
recognizing that "the Legislature has long relied on the federal
minimum wage law to lay a foundation of worker protections that
this State could build upon," says Judge Pickering, citing 130 Nev.
at 884, 336 P.3d at 955. But in the context of the MWA, the Judge
explains, federal FLSA law carries even greater persuasive weight,
given that the relevant language of the MWA (defining employee as
"any person who is employed by an employer," Nev. Const. art. 15,
Section 16(C)) so closely mirrors the FLSA 29 U.S.C. Section
203(e)(1) (defining employee as "any individual employed by an
employer"), citing Amazon.com, Inc. v. Integrity Staffing Sods.,
Inc., 905 F.3d 387, 398 (6th Cir. 2018).
In sum, the Supreme Court holds that the federal economic realities
test applies to define the scope of the MWA's constitutional
definition of employee.
Because the economic realities test is based on a totality of
circumstances, courts have used a range of factors in their
analyses of the same. There are six that "courts nearly universally
consider": 1) the degree of the alleged employer's right to control
the manner in which the work is to be performed; 2) the alleged
employee's opportunity for profit or loss depending upon his
managerial skill; 3) the alleged employee's investment in equipment
or materials required for his task, or his employment of helpers;
4) whether the service rendered requires a special skill; 5) the
degree of permanence of the working relationship; and 6) whether
the service rendered is an integral part of the alleged employer's
business.
Applying these factors to find an employment relationship in Terry,
the Supreme Court noted that its holding was, at that time,
consistent with "the great weight of authority" using the economic
realities test, which had "almost 'without exception found an
employment relationship and required nightclubs to pay their
dancers a minimum wage.'" And it remains true that courts continue
to trend to allowing exotic dancers coverage under the FLSA, and
the corresponding economic realities test as employees, rather than
excluding them from minimum wage protections as independent
contractors. That said, exotic dancers are not as a class
categorically employees entitled to constitutional minimum under
the MWA, as opposed to independent contractors. Instead, that
question must be decided case by case, with reference to the
particular circumstances of the relationship involved.
Judge Pickering notes, the material facts surrounding the Doe
Dancers' work for Cheetahs are undisputed. The question of their
employment status is, therefore, one of law.
Applying the factors of the economic realities test, Judge
Pickering finds that: (i) Cheetahs reserved (and seemingly
exercised) a more extensive right to control its dancers than the
club in Terry; (ii) the Doe Dancers' respective opportunities for
profit or loss were not meaningfully tethered to their managerial
skills; (iii) the Doe Dancers' respective investments in "equipment
or materials" were, as the performers' in Terry, seemingly limited
to their appearances and costuming; (iv) "whether the service
rendered requires a special skill," witnesses' testimony regarding
the near absence of any requirements for performing at
Cheetahs--aside from, perhaps, a compliant "attitude"--would seem
to entirely negate this; (v) there appears little permanency in the
relationship between the Doe Dancers and Cheetahs--the manager's
log book reflects the relatively frequent cessation of dancers'
relationships with the club, sometimes without explanation--and the
testimony of Ponterelli and various Doe Dancers suggests that the
"length and the regularity" of the Doe Dancers' work was, at least
to some degree, of their own choosing; and (vi) whether the Doe
Dancers' work is "integral" to Cheetahs' business--requires little
analysis. As Ponterelli acknowledged, a business such as Cheetahs
can't be a men's club without exotic dancers. Common sense leads
the Panel to agree, and Cheetahs' briefing appears to concede the
point.
Accordingly, the weight of the economic realities test factors
support that the Doe Dancers are employees, as opposed to
independent contractors, thereunder.
This leaves only the question of whether NRS 608.0155's definition
of independent contractor operates to exclude the Doe Dancers from
these constitutional base-line protections by narrowing the scope
of which workers the MWA would otherwise cover.
Cheetahs' argument that its interpretation of NRS 608.0155--that
is, its reading the statutory expansion of the class of independent
contractors as applicable to the MWA's definition of employee--does
not create any conflict therewith is puzzling, says Judge
Pickering. Admittedly, NRS 608.0155 is framed in terms of who is an
"independent contractor," but it operates to distinguish
"independent contractors' from "employees," which concepts are
mutually exclusive.
Indeed, to say that NRS 608.0155 does not alter the MWA's
definition of employee would likewise be to say that NRS 608.0155
does not affect which workers are employees under the MWA; or, put
differently, that NRS 608.0155 does not exclude from the MWA's
coverage any worker otherwise covered by the constitutional
definition of employee. And this is plainly not Cheetahs' position,
all semantics aside. Thus, the Supreme Court's analysis assumes
without deciding, that the Doe Dancers fall under this conclusive
statutory presumption, which--if it does apply to MWA claims--would
negate their constitutional minimum wage entitlement.
The Supreme Court concludes that NRS 608.0155 does not, and indeed
could not, remove from MWA protections employer-employee
relationships the constitutional provision protects. And because,
as established, the Doe Dancers are otherwise employees within the
MWA's meaning, the district court erred by granting summary
judgment in favor of Cheetahs and against the Doe Dancers on that
point.
The Supreme Court, therefore, reverses the district court's summary
judgment and remands this matter to the district court for
proceedings consistent with this Opinion.
HARDESTY, C.J., PARRAGUIRRE, CADISH, SILVER and HERNDON, JJ.,
concurs. STIGLICH, J., concurs.
A full-text copy of the Court's Opinion dated Feb. 25, 2021, is
available at https://tinyurl.com/cammsjns from Leagle.com.
Bighorn Law and Kimball J. Jones, in Las Vegas, Nevada; Rusing
Lopez & Lizardi, PLLC, and Michael J. Rusing -- mrusing@rllaz.com
-- in Tucson, Arizona, for Appellants.
Hartwell Thalacker, Ltd., and Doreen Spears Hartwell --
Doreen@HartwellThalacker.com -- in Las Vegas, Nevada; Schulten Ward
Turner & Weiss, LLP, and Dean R. Fuchs -- d.fuchs@swtwlaw.com -- in
Atlanta, Georgia, for Respondent.
LAKEVIEW LOAN: March 30 Filing Date for Class Certification Sought
------------------------------------------------------------------
In the class action lawsuit captioned as JAMALLAH BROWN,
individually, and on behalf of a class of similarly situated
persons, v. LAKEVIEW LOAN SERVICING, LLC, and LOANCARE, LLC, Case
No. 3:20-CV-00280-FDW-DSC (W.D.N.C.), the Parties asks the Court to
enter an order resetting the hearing date on Plaintiff's
forthcoming motion for class certification as follows:
-- The Plaintiff's motion for class certification shall be
filed March 30, 2021.
-- The Defendants' response to Plaintiffs' motion for class
certification shall be filed April 30, 2021.
-- The Plaintiff's reply in support of her motion for class
certification shall be filed by May 18, 2021.
-- The Class certification hearing shall be between June 17
and June 30, on a date set by the Court. Counsel for each
party is available on any date from June 17 through June
30, inclusive.
-- All other dates in the Case Management Order would remain
unchanged.
A copy of the Parties' motion dated March 8, 2020 is available from
PacerMonitor.com at https://bit.ly/3rYbO7z at no extra charge.[CC]
The Attorneys for Plaintiffs are:
James Kauffman, Esq.
W. Stacy Miller II, Esq.
MILLER LAW GROUP, PLLC
PO Box 6340
Raleigh, NC 27628
Telephone: (919) 348-4361
Facsimile: (919) 729-2953
E-mail: Stacy@MillerLawGroupNC.com
- and -
Hassan A. Zavareei, Esq.
Kristen G. Simplicio, Esq.
TYCKO & ZAVAREEI LLP
1828 L Street NW, Suite 1000
Washington, D.C. 20036
Telephone: (202) 973-0900
Facsimile: (202) 973-0950
E-mail: hzavareei@tzlegal.com
kaizpuru@tzlegal.com
- and -
Victor S. Woods, Esq.
BAILEY & GLASSER, LLP
209 Capitol Street
Charleston, WV 25301
Telephone: (304) 345-6555
Facsimile: (304)342-1110
E-mail; vwoods@baileyglasser.com
- and -
James L. Kauffman, Esq.
BAILEY & GLASSER LLP
1055 Thomas Jefferson St. NW, Suite 450
Washington, D.C. 20007
Telephone: (202) 463-2101
Facsimile: (202) 463-2103
E-mail; jkauffman@baileyglasser.com
The Attorneys for Defendants are:
Joshua Davey, Esq.
Jacob R. Franchek, Esq.
TROUTMAN PEPPER HAMILTON
SANDERS LLP
301 S. College St., 34th Floor
Charlotte, NC 28202
Telephone: 704 916-1503
E-mail: joshua.davey@troutman.com
jacob.franchek@troutman.com
- and -
Steven A. Goldfarb, Esq.
Erica L. Calderas, Esq.
Michael J. Gleason, Esq.
HAHN LOESER & PARKS LLP
200 Public Square, Suite 2800
Cleveland, OH 44114
Telephone: (216) 621-0150
E-mail: sag@hahnlaw.com
elc@hahnlaw.com
mgleason@hahnlaw.com
LIBERTY HOMECARE: Headly Seeks to Certify Class of Service Workers
-------------------------------------------------------------------
In the class action lawsuit captioned as Phyllis Headly,
individually, and on behalf of others similarly situated, v.
Liberty Homecare Options, LLC, and Lucia Devivo Catalano, Case No.
3:20-cv-00579-JAM (D. Conn.), the Plaintiff, individually and on
behalf of 65-200 class members, asks the Court to enter an order:
1. certifying a class pursuant to Federal Rule of Civil
Procedure 23(a) and 23(b):
"All Persons who worked for the Defendants as a domestic
service worker in Connecticut from January 15, 2018 to the
present, who worked at least one 24-hour shift providing
care to the Defendants' clients;"
2. designating her as Class Representatives; and
3. designating her counsel, the Law Office of Nitor V.
Egbarin, LLC, as class counsel.
Home health aides are "domestic service workers" who perform
services of a household nature in or about a private home
(permanent or temporary) as defined in 29 C.F.R. section 552.3,
including the Plaintiff and other similarly situated home health
aides ("HHAs"), personal care aides, (PCAs") all of whom are called
caregivers. Both HHAs and PCAs are the same domestic service
workers with the same duties.
The Plaintiff contends that the Defendants have a common policy or
practice of not accurately recording and counting all the time
their HHAs, including her, worked. The Defendants provided the
Plaintiff and all HHAs with timesheets to record the hours they
worked.
A copy of the Plaintiff's motion to certify class dated March 8,
2020 is available from PacerMonitor.com at http://bit.ly/3ls3GtMat
no extra charge.[CC]
The Plaintiff is represented by:
Nitor V. Egbarin, Esq.
LAW OFFICE OF NITOR V. EGBARIN, LLC
100 Pearl Street, 14th Floor
Hartford, CT 06103-3007
Telephone: (860) 249-7180
Facsimile: (860) 408-1471
E-mail: NEgbarin@aol.com
LIVE NATION: Court Grants Bid to Compel Arbitration in Tezak Suit
-----------------------------------------------------------------
In the case, JOHN TEZAK, on behalf of himself and all others
similarly situated, Plaintiff v. LIVE NATION ENTERTAINMENT, INC.,
et al., Defendant, Case No. 20-cv-2482 (N.D. Ill.), Judge Sharon
Johnson Coleman of the U.S. District Court for the Northern
District of Illinois, Eastern Division, grants the Defendants'
motion to compel arbitration brought under the Federal Arbitration
Act, 9 U.S.C. Section 4.
Plaintiff Tezak brought the class action lawsuit against Defendants
Live Nation and associated companies, alleging various state law
claims, including breach of contract and violations of the Illinois
Consumer Fraud and Deceptive Business Practices Act, 815 ILCS
505/2, among others.
Mr. Tezak's complaint is based on his purchase of tickets to a
March 17, 2020 Blake Shelton concert at the Allstate Arena in
Rosemont, Illinois, that was postponed indefinitely due to the
COVID-19 pandemic. In order to purchase tickets, Tezak created an
account on Ticketmaster's mobile website. By using the website,
Tezak agreed to Ticketmaster's Terms of Use, which includes an
arbitration agreement.
Before the Court is the Defendants' motion to compel arbitration.
Mr. Tezak does not dispute that he affirmatively agreed to
Ticketmaster's Terms of Use when he purchased the Blake Shelton
concert tickets. Instead, Tezak attempts to create an ambiguity to
show that the parties did not clearly and unmistakably delegate the
threshold arbitrability questions to the arbitrator. In support of
his argument, Tezak relies on language in the parties' agreement
citing to the Illinois Ticket Sale and Resale Act.
Judge Coleman opines that by the statute's own terms, the resale
provision applies only to resale purchases, not purchases made
directly through Ticketmaster. Put differently, the language in
the statute incorporated into the Terms of Use, is not susceptible
to more than one meaning, and thus is not ambiguous as Tezak
claims. Tezak's purchase of tickets for the Shelton Blake concert
was original sale, primary market tickets sold by Ticketmaster on
behalf of the venue. As such, the Illinois resale provision and
its Illinois-specific terms are not relevant to Tezak's purchase.
The Judge, thus, turns to Tezak's argument that the parties'
agreement does not establish by clear and unmistakable evidence
that they delegated the threshold arbitrability questions to the
arbitrator. She explains that the Terms of Use unequivocally
state: "The arbitrator, and not any federal, state or local court
or agency, will have exclusive authority to the extent permitted by
law to resolve all disputes arising out of or relating to the
interpretation, applicability, enforceability, or formation of this
Agreement."
This unambiguous language, she says, meets the requisite "clear and
unmistakable" standard. In short, Tezak and the Defendants chose
to delegate questions of arbitrability to the arbitrator. Tezak's
arguments based on Illinois' resale statute and the similar Terms
of Use language that contain Illinois-specific terms do not change
this analysis or create an ambiguity because these provisions are
not relevant under the circumstances.
Based on the foregoing, Judge Coleman grants the Defendants' motion
to compel arbitration. She terminated the civil case.
A full-text copy of the Court's March 10, 2021 Memorandum Opinion &
Order is available at https://tinyurl.com/e68bw534 from
Leagle.com.
MIDLAND CREDIT: Amansec Seeks to Certify New Jersey Consumer Class
------------------------------------------------------------------
In the class action lawsuit captioned as ROMMEL AMANSEC, on behalf
of himself and those similarly situated, v. MIDLAND CREDIT
MANAGEMENT, INC., Case No. 2:15-cv-08798-SDW-LDW (D.N.J.), the
Plaintiff will move the Court on April 5, 2021, to enter an order:
1. certifying the case to proceed as a class action pursuant
to Federal Rule of Civil Procedure 23, on behalf of:
"All consumers in the State of New Jersey, from whom,
beginning December 21, 2014, through and including March
20, 2020, Defendant Midland Credit Management, Inc.,
attempted to collect a charged-off consumer debt allegedly
owed to Midland Funding LLC, (a) by sending a collection
letter stating balances higher than the charged-off
balance because interest was added by Defendant to the
charged-off balance, and (b) was seeking to collect a
consumer debt alleged to be originally owed to
Webbank/Fingerhut Credit;"
2. defining the class claims as all claims for statutory
damages under the Fair Debt Collection Practices Act, 15
U.S.C. section 1692, et seq., arising from Midland Credit
Management, Inc.'s sending of letters during the relevant
period seeking repayment of an obligation that originated
with WebBank/Fingerhut, where the amount owed as of the
letter date was higher than the charged-off balance
because MCM charged interest on behalf of Midland Funding
LLC;
3. defining the class period as: December 21, 2014 through
March 20, 2020;
4. appointing the Plaintiff Rommel Amansec as Class
Representative;
5. appointing Yongmoon Kim of Kim Law Firm LLC, and Scott C.
Borison of Borison Firm LLC, as Class Counsel.
Midland Credit is a debt collection company.
A copy of the Plaintiff's motion to certify class dated March 5,
2020 is available from PacerMonitor.com at http://bit.ly/3rS7KWyat
no extra charge.[CC]
The Plaintiff is represented by
Yongmoon Kim, Esq.
KIM LAW FIRM LLC
411 Hackensack Avenue, Suite 701
Hackensack, NJ 07601
Telephone: (201) 273-7117
- and -
Scott C. Borison, Esq.
BORISON FIRM LLC
1400 S. Charles Street
Baltimore, MD 21230
Telephone: (650) 740-6228
MONDELEZ INT'L: McMorrow Renewed Bid for Class Certification OK'd
-----------------------------------------------------------------
In the class action lawsuit captioned as PATRICK MCMORROW, et al.,
v. MONDELEZ INTERNATIONAL, INC., Case No. 3:17-cv-02327-BAS-JLB
(S.D. Calif.), the Hon. Judge Cynthia Bashant entered an order:
1. denying the Defendant's motion to exclude the expert
testimony of Colin Weir;
2. denying the Defendant's motion to exclude the expert
testimony of Michael J. Dennis;
3. denying without prejudice the Plaintiffs' motion to strike
the testimony of Drs. McFadden and Wilcox;
4. denying without prejudice the Plaintiffs' motion to strike
the testimony of Dr. Itamar Simonson;
5. granting the Plaintiffs' renewed motion for class
certification.
Mondelez is an American multinational confectionery, food, holding
and beverage and snack food company based in Chicago, Illinois.
A copy of the Court's order dated March 8, 2020 is available from
PacerMonitor.com at https://bit.ly/2P3ZSCO at no extra charge.[CC]
MORPHE LLC: Brooks ADA Suit Seeks Rule 23 Class Certification
-------------------------------------------------------------
In the class action lawsuit captioned as VALERIE BROOKS,
individually and on of all others similarly situated, v. MORPHE
LLC, a Delaware limited liability company; and DOES 1 to 10,
inclusive, Case No. 2:20-cv-01219-KJM-DB (E.D. Calif.), the
Plaintiff will move the Court on April 16, 2021 to enter an order
granting her motion for class certification on the grounds that all
the prerequisites of Rule 23, including both Rule 23(b)(2) and Rule
23(b)(3) have been satisfied.
Brooks contends that she has filed an action -- in which Defendant
Morphe has not appeared -- which is quite simply perfect for class
certification. While the Plaintiff has not had the opportunity to
obtain any discovery from Morphe, due to its refusal to participate
in this case, the Plaintiff has met all of the prerequisites for
class certification.
This is a case alleging that Morphe has violated the Americans with
Disabilities Act (ADA) by failing to make its website accessible to
blind and visually impaired persons.
The Plaintiff is a legally blind individual who sought to access
Morphe's website using a screen reader, but could not, because the
website is incompatible with screen-reading software. The central
issues here -- whether Morphe operates a place of public
accommodation, and whether the website is compatible with
screen-readers -- are class-wide.
Because damages are statutory in nature -- each unsuccessful visit
to the website engenders statutory penalties -- the only
individualized issues will be whether the class member visited the
website, and whether he or she is visually disabled under the ADA.
The Defendant Morphe operates www.morphe.com, a website through
which consumers can purchase affordable makeup over the internet or
view makeup for purchase in store, the locations of which consumers
can find on the webpage. Plaintiff Valerie Brooks, who is legally
blind, can only experience the internet through screen-reading
software.
The Plaintiff has visited the Defendant's website numerous times,
including in 2020. During each of these visits, the Plaintiff
encountered barriers which prevented her from using the website.
A copy of the Plaintiff's motion to certify class dated March 8,
2020 is available from PacerMonitor.com at https://bit.ly/3qXE9K6
at no extra charge.[CC]
The Plaintiff is represented by:
Thiago Coelho, Esq.
Robert J. Dart, Esq.
WILSHIRE LAW FIRM
3055 Wilshire Blvd., 12th Floor
Los Angeles, CA 90010
Telephone: (213) 381-9988
Facsimile: (213) 381-9989
E-mail: thiago@wilshirelawfirm.com
robert@wilshirelawfirm.com
MOUNT OLIVE: Sanchez Files ADA Suit in S.D. New York
----------------------------------------------------
A class action lawsuit has been filed against Mount Olive Pickle
Company, Inc. The case is styled as Cristian Sanchez, on behalf of
himself and all others similarly situated v. Mount Olive Pickle
Company, Inc., Case No. 1:21-cv-02350 (S.D.N.Y., March 17, 2021).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
The Mount Olive Pickle Company -- https://www.mtolivepickles.com/
-- is an American food processing company located in Mount Olive,
North Carolina.[BN]
The Plaintiff is represented by:
Joseph H. Mizrahi, Esq.
COHEN & MIZRAHI LLP
300 Cadman Plaza West, 12th Floor
Brooklyn, NY 11201
Phone: (929) 575-4175
Fax: (929) 575-4195
Email: joseph@cml.legal
NATIONWIDE COIN: Sanchez Files ADA Suit in S.D. New York
--------------------------------------------------------
A class action lawsuit has been filed against Nationwide Coin &
Bullion Reserve, Inc. The case is styled as Cristian Sanchez, on
behalf of himself and all others similarly situated v. Nationwide
Coin & Bullion Reserve, Inc., Case No. 1:21-cv-02293 (S.D.N.Y.,
March 16, 2021).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Nationwide Coin and Bullion Reserve, Inc. --
https://nationwidecoins.com/ -- specializes in precious metals and
coins.[BN]
The Plaintiff is represented by:
Joseph H. Mizrahi, Esq.
COHEN & MIZRAHI LLP
300 Cadman Plaza West, 12th Floor
Brooklyn, NY 11201
Phone: (929) 575-4175
Fax: (929) 575-4195
Email: joseph@cml.legal
NEW YORK CITY: IEPs Students Settlement Class Gets Certification
----------------------------------------------------------------
In the class action lawsuit captioned as M.G., a minor, by and
through his parent and natural guardian R.G.; G.J., a minor, by and
through his parent and natural guardian, C.J., on behalf of
themselves and a class of those similarly situated; and BRONX
INDEPENDENT LIVING SERVICES, a nonprofit organization, v. THE NEW
YORK CITY DEPARTMENT OF EDUCATION; THE CITY OF NEW YORK; RICHARD A.
CARRANZA, in his official capacity as Chancellor of the New York
City Department of Education, Case No. 1:17-cv-05692-PGG
(S.D.N.Y.), the Hon. Judge Paul G. Gardephe entered an order:
1. granting preliminary approval of class settlement;
2. certifying the settlement class defined as:
"All students with individualized education programs
("IEPs") (a) who, during the period from July 27, 2015, to
the last day of the Court's jurisdiction to enforce this
Agreement, including any extensions thereof ("Ending
Date"), attend, have attended, or will attend public
schools operated by the New York City Department of
Education ("DOE") and located in the Bronx; (b) whose IEPs
include recommendations for one or more related services,
as defined in this Agreement, or did recommend such
services during the period between July 27, 2015, and the
Ending Date; and (c) who are eligible to receive related
services under the Individuals with Disabilities Education
Act. Students with IEPs who attended a DOE public school
located in the Bronx between July 27, 2015, and March 13,
2020, but as of the date of this Agreement do not attend a
DOE public school located in the Bronx, must have had an
RSA issued on or after July 27, 2015, while they attended
a DOE school in the Bronx, but did not receive their
related services pursuant to such Related Services
Authorizations (RSAs) during the period between July 27,
2015, and March 13, 2020;"
3. approving notice; and
4. setting June 22, 2021 hearing date for final approval.
On July 27, 2017, the Named Plaintiffs filed a putative class
action lawsuit in the United States District Court for the Southern
District of New York with allegations related to the provision of
related services to certain students with IEPs enrolled in schools
operated by Defendant New York City Department of Education (DOE)
in the Bronx, including the use of RSAs for those students.
The Named Plaintiffs seek relief against the DOE and its chancellor
including alleged violations of the Individuals with Disabilities
Education Act (IDEA), the Americans with Disabilities Act (ADA),
the Rehabilitation Act of 1973, and the New York City Human Rights
Law.
The New York City Department of Education is the department of the
government of New York City that manages the city's public school
system. The City School District of the City of New York is the
largest school system in the United States, with over 1.1 million
students taught in more than 1,800 separate schools.
A copy of the Court's order dated March 8, 2020 is available from
PacerMonitor.com at https://bit.ly/3qZwX07 at no extra charge.[CC]
NEW YORK: Cole Files Bid for Class Action Certification
-------------------------------------------------------
In the class action lawsuit captioned as Stephen Cole v. The State
of New York, GOVERNOR ANDREW CUOMO; a COMMISSIONER OF CORRECTIONS
ANTHONY ANNUCCI; MED. DIRECTOR OF PAROLE JEFF McKoy, et al., Case
No. 2:21-cv-01304-JMA-SIL (E.D.N.Y.), the Plaintiff asks the Court
to enter an order granting his motion for class action
certification.
The Plaintiff contends that he was sentence by a state court in the
State of New York, and placed under the care custody and control of
the Department of Correction in the State of New York. He is
currently confined at the Orleans Correction facility, he adds.
The Plaintiff further gives challenge to the conditions at time in
question and furthermore the length of sentence and confinement
during the COVID-19 pandemic.
New York is a state in the northeastern U.S., known for New York
City and towering Niagara Falls.
The Plaintiff appears pro se.
A copy of the Plaintiff's motion to certify class dated March 8,
2020 is available from PacerMonitor.com at https://bit.ly/3bXPBkF
at no extra charge.[CC]
NEW YORK: Jacque-Crews Files Bid for Class Action Status
--------------------------------------------------------
In the class action lawsuit captioned as D. Jacque-Crews v. The
State of New York, GOVERNOR ANDREW CUOMO; a COMMISSIONER OF
CORRECTIONS ANTHONY ANNUCCI; MED. DIRECTOR OF PAROLE JEFF McKoy, et
al., Case No. 2:21-cv-01306-JMA-SIL (E.D.N.Y.), the Plaintiff asks
the Court to enter an order granting his motion for class action
certification.
The Plaintiff contends that he was sentence by a state court in the
State of New York, and placed under the care custody and control of
the Department of Correction in the State of New York. He is
currently confined at the Orleans Correction facility, he adds.
The Plaintiff further gives challenge to the conditions at time in
question and furthermore the length of sentence and confinement
during the COVID-19 pandemic.
New York is a state in the northeastern U.S., known for New York
City and towering Niagara Falls.
The Plaintiff appears pro se.
A copy of the Plaintiff's motion to certify class dated March 8,
2020 is available from PacerMonitor.com at https://bit.ly/3tujJdk
at no extra charge.[CC]
NEW YORK: Middlebrooks Files Bid for Class Action Certification
---------------------------------------------------------------
In the class action lawsuit captioned as Paul Middlebrooks v. The
State of New York, GOVERNOR ANDREW CUOMO; a COMMISSIONER OF
CORRECTIONS ANTHONY ANNUCCI; MED. DIRECTOR OF PAROLE JEFF McKoy, et
al., Case No. 2:21-cv-01303-JMA-SIL (E.D.N.Y.), the Plaintiff asks
the Court to enter an order granting his motion for class action
certification.
The Plaintiff contends that he was sentence by a state court in the
State of New York, and placed under the care custody and control of
the Department of Correction in the State of New York. He is
currently confined at the Orleans Correction facility, he adds.
The Plaintiff further gives challenge to the conditions at time in
question and furthermore the length of sentence and confinement
during the COVID-19 pandemic.
New York is a state in the northeastern U.S., known for New York
City and towering Niagara Falls.
The Plaintiff appears pro se.
A copy of the Plaintiff's motion to certify class dated March 8,
2020 is available from PacerMonitor.com at https://bit.ly/3rZEP2L
at no extra charge.[CC]
NEW YORK: Napper Files Bid for Class Action Certification
---------------------------------------------------------
In the class action lawsuit captioned as Lawrence Napper v. The
State of New York, GOVERNOR ANDREW CUOMO; a COMMISSIONER OF
CORRECTIONS ANTHONY ANNUCCI; MED. DIRECTOR OF PAROLE JEFF McKoy, et
al., Case No. 2:21-cv-01305-JMA-SIL (E.D.N.Y.), the Plaintiff asks
the Court to enter an order granting his motion for class action
certification.
The Plaintiff contends that he was sentence by a state court in the
State of New York, and placed under the care custody and control of
the Department of Correction in the State of New York. He is
currently confined at the Orleans Correction facility, he adds.
The Plaintiff further gives challenge to the conditions at time in
question and furthermore the length of sentence and confinement
during the COVID-19 pandemic.
New York is a state in the northeastern U.S., known for New York
City and towering Niagara Falls.
The Plaintiff appears pro se.
A copy of the Plaintiff's motion to certify class dated March 8,
2020 is available from PacerMonitor.com at https://bit.ly/38RWzWq
at no extra charge.[CC]
NEW YORK: Still Files Bid for Class Action Status
-------------------------------------------------
In the class action lawsuit captioned as Ulner Still v. The State
of New York, GOVERNOR ANDREW CUOMO; a COMMISSIONER OF CORRECTIONS
ANTHONY ANNUCCI; MED. DIRECTOR OF PAROLE JEFF McKoy, et al., Case
No. 2:21-cv-01283-JMA-SIL (E.D.N.Y.), the Plaintiff asks the Court
to enter an order granting his motion for class action
certification.
The Plaintiff contends that he was sentence by a state court in the
State of New York, and placed under the care custody and control of
the Department of Correction in the State of New York. He is
currently confined at the Orleans Correction facility, he adds.
The Plaintiff further gives challenge to the conditions at time in
question and furthermore the length of sentence and confinement
during the COVID-19 pandemic.
New York is a state in the northeastern U.S., known for New York
City and towering Niagara Falls.
The Plaintiff appears pro se.
A copy of the Plaintiff's motion to certify class dated March 8,
2020 is available from PacerMonitor.com at https://bit.ly/3tyMUw2
at no extra charge.[CC]
NEXT TECHNOLOGIES: Sanchez Files ADA Suit in S.D. New York
----------------------------------------------------------
A class action lawsuit has been filed against Next Technologies
Inc. The case is styled as Cristian Sanchez, on behalf of himself
and all others similarly situated v. Next Technologies Inc., Case
No. 1:21-cv-02284 (S.D.N.Y., March 16, 2021).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Next Technologies Inc. -- http://www.nxttechnologies.com/-- was
founded in 2007 to develop and provide technology consumers with
advanced hardware and software solutions.[BN]
The Plaintiff is represented by:
Joseph H. Mizrahi, Esq.
COHEN & MIZRAHI LLP
300 Cadman Plaza West, 12th Floor
Brooklyn, NY 11201
Phone: (929) 575-4175
Fax: (929) 575-4195
Email: joseph@cml.legal
NISSAN NORTH: Hays' Defective Car Suit Wins Class Certification
---------------------------------------------------------------
In the class action lawsuit captioned as LAURA FRANCES HAYS, on
behalf of herself and all others similarly situated, v. NISSAN
NORTH AMERICA, INC., Case No. 4:17-cv-00353-BCW (W.D. Mo.), the
Hon. Judge Brian C. Wimes entered an order:
1. granting the Plaintiff's Motion for Class Certification;
and
2. certifying the class as to the remaining claims pursuant
to the following definition:
"All persons in Missouri who (1) currently own or lease a
Class Vehicle, or (2) who previously paid for repairs to
rust in a front floor panel; of a Class Vehicle. Class
Vehicles include model years 2002-2006 Nissan Altimas and
model years 2004-2008 Nissan Maximas."
The Court said, "The Plaintiff asserts damages can be calculated on
a classwide basis because they will be established through common
evidence, even if individual amounts of damages vary. Nissan
challenges the merits of the Plaintiff's theory of damages, arguing
it does not align with Plaintiff's theory of liability. As this
Court held in a prior order, the Plaintiff's expert's damage model
is sufficient to satisfy the requirement that a district court may
not certify a class without establishing that damages can be
measured on a classwide basis and are consistent with a plaintiff's
liability case, as set forth in Comcast Corp. v. Behrend, 569 U.S.
27, 36 (2013). Thus, at this stage, the Court finds no reason that
any individual inquiries into damages predominate over the common
issues. The Court finds Plaintiff has shown the proposed class
meets the four prerequisites in satisfaction of Rule 23(a), and
common issues predominate over individual issues and class
adjudication is superior in satisfaction of Rule 23(b)(3) such that
class certification is appropriate."
Hays filed this action against the Defendant Nissan North America
individually and on behalf of others similarly situated, stemming
from an alleged defect in 2002-2006 models of Nissan Altima and
2004-2008 models of Nissan Maxima vehicles (Class Vehicles).
In April 2003, Hays purchased a new 2003 Nissan Altima. In 2015,
after seeing a news report about rusty floorboards in Altimas, Hays
had her car inspected and discovered the passenger floor panel had
corroded. After Hays contacted Nissan about the corrosion, Nissan
informed her that Nissan would not pay for repair to the corrosion.
Hays then paid $459.00 for a "patch" repair in which the rusted
area was covered with sheet metal. A few months later she sold her
car.
The amended complaint alleges that all Class Vehicles have the same
defect which caused Hays' floor panel to rust as follows. The
driver and passenger floor panels in Class Vehicles are composed of
multiple layers with a concave shape, and the middle layers have a
one-inch hole used in the assembly process and then patched with
tape. The tape fails to provide a watertight seal, allowing
moisture to accumulate in the concave area and become trapped
between the panels.
Hays alleges Nissan's failure to adequately seal the holes has
resulted in unusual, severe, and premature corrosion in Class
Vehicles that has, in some instances, created holes large enough
for a driver's feet and legs to slide through. Hays alleges Nissan
knew or should have known of the defect at the time it began
selling the Class Vehicles.
A copy of the Court's order dated March 8, 2020 is available from
PacerMonitor.com at https://bit.ly/3txxEzn at no extra charge.[CC]
NO TAX 4 NASH: Elrod TCPA Suit Seeks to Certify Class
-----------------------------------------------------
In the class action lawsuit captioned as RACHAEL ANNE ELROD, ANDREW
KAUFMAN, and SARAH MARTIN, on behalf of themselves and all others
similarly situated, v. NO TAX 4 NASH, MICHELLE FOREMAN, and JOHN
DOES 1-10, Case No. 3:20-cv-00617 (M.D. Tenn.), the Plaintiff asks
the Court to enter an order:
1. certifying a class defined as:
"All individuals who received, between July 16, 2020 and
the filing date of the Complaint, one or more pre-recorded
calls to their cellular telephones from the phone number
615-348-5237;"
Excluded from the Class are the Defendants and any
entities in which a Defendant has a controlling interest,
the Defendants' agents and employees, any Judge to whom
this action is assigned and any member of such Judge's
staff and immediate family, the Plaintiffs' counsel, and
any claims for personal injury, wrongful death and/or
emotional distress;
2. appointing themselves as Class Representatives; and
3. appointing their counsel as class counsel under Fed. R.
Civ. P. 23(g);
The Plaintiffs allege that they and other individuals in and around
Nashville, Tennessee, received a pre-recorded robocall to their
cellular telephones from the phone number (615) 348-5237, featuring
a female voice saying:
"Nashville voters, if you would like to sign the recall
petition for the mayor and council members who supported the
34% property tax increase, we will be at all 11 polling
locations on Friday and Saturday for early voting. If you
have any questions, find us on Facebook or go to our website,
notax4nash.com. Have a wonderful evening, and don't forget to
vote! Paid for by No Tax 4 Nash."
The Plaintiffs contends that they did not give prior express
consent to receive this robocall to their cellular phones and filed
the instant action for violations of the Telephone Consumer
Protection Act ("TCPA").
No Tax 4 Nash is a group working to collect signatures needed to
recall Nashville Mayor John Cooper and city council members has
fallen short of its goal.
A copy of the Plaintiffs' motion to certify class dated March 8,
2020 is available from PacerMonitor.com at https://bit.ly/30SZHNj
at no extra charge.[CC]
The Attorneys for the Plaintiffs and the Proposed Class are:
Joe P. Leniski, Jr., Esq.
Anthony A. Orlandiv
BRANSTETTER, STRANCH & JENNINGS, PLLC
The Freedom Center
223 Rosa Parks Avenue, Suite 200
Nashville, TN 37203
Telephone: (615) 254-8801
E-mail: joeyl@bsjfirm.com
aorlandi@bsjfirm.com
- and -
John Spragens, Esq.
SPRAGENS LAW PLC
311 22nd Ave. N.
Nashville, TN 37203
Telephone: (615) 983-8900
Facsimile: (615) 682-8533
E-mail: john@spragenslaw.com
The Defendants are represented by:
G. Kline Preston, IV, Esq.
KLINE PRESTON LAW GROUP, PC
4515 Harding Pike, Suite 107
Nashville, TN 37205
Telephone: (615) 279-1619
E-mail: kpreston@klineprestonlaw.com
O.G. ELIADES: Final Judgment in Allen MWA Suit Affirmed in Part
---------------------------------------------------------------
In the case, STACIE ALLEN; AND JANE DOE DANCER I-IV, INDIVIDUALLY,
AND ON BEHALF OF CLASS OF SIMILARLY SITUATED INDIVIDUALS,
Appellants v. O.G. ELIADES, LLC, A NEVADA LIMITED LIABILITY
COMPANY; O G ELIADES A D, LLC, A NEVADA LIMITED LIABILITY COMPANY;
AND O.G. ELIADES, LLC/O G ELIADES AD, LLC, A JOINT VENTURE OR
PARTNERSHIP, Respondents, Case No. 79632 (Nev.), Judge Joseph
Hardy, Jr. of the Supreme Court of Nevada affirmed in part and
reversed in part the district court's final judgment in a class
action over unpaid wages.
While the appeal was pending, the Nevada Supreme Court decided Doe
Dancer I v. La Fuente, Inc., 137 Nev., Adv. Op. 3 (2021), which
resolves the legal questions at play in the case. To wit, in Doe
Dancer, the Court held that NRS 608.0155 does not apply to claims
brought under the Minimum Wage Amendment ("MWA").
Accordingly, Judge Hardy holds that whether the Appellants meet the
requirements of NRS 608.0155 does not impact their classification
for purposes of the MWA to the Nevada Constitution. That is, if
they fall within the MWA's scope, NRS 608.0155 cannot prevent them
from recovering the minimum wages they are constitutionally owed.
In light of Doe Dancer, Judge Hardy holds that the district court's
reasoning for granting the Respondents' summary judgment motion
cannot stand, citing Wood v. Safeway, Inc., 121 Nev. 724, 729, 121
P.3d 1026, 1029 (2005). In particular, whether the Appellants are
entitled to the minimum wage guaranteed by the MWA depends on the
"economic realities test", and on this record, a fact-finder could
draw contradictory conclusions as to elements of that test -- most
notably regarding the extent of the Respondents' control over the
Appellants. In other words, the Judge finds that a rational trier
of fact applying the test could determine that the Appellants
should have been classified as employees, and he cannot conclude as
a matter of law that they were not employees.
However, for the same reasons, the Judge holds that the Appellants
likewise were not entitled to judgment as a matter of law, such
that the district properly denied their competing motion for
summary judgment.
Judge Hardy therefore affirmed in part and reversed in part the
judgment of the district court. He remanded the matter to the
district court for proceedings consistent with his Order.
A full-text copy of the Court's March 10, 2021 Order is available
at https://tinyurl.com/xxu2ebhh from Leagle.com.
ORIGINAL INC: Martinez Files ADA Suit in E.D. New York
------------------------------------------------------
A class action lawsuit has been filed against Original Inc. The
case is styled as Pedro Martinez, individually and as the
representative of a class of similarly situated persons v. Original
Inc., Case No. 1:21-cv-01412 (E.D.N.Y., March 17, 2021).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Original, Inc. was founded in 2010. The Company's line of business
includes the manufacturing of women's apparel.[BN]
The Plaintiff is represented by:
Dan Shaked, Esq.
SHAKED LAW GROUP P.C.
14 Harwood Court, Suite 415
Scarsdale, NY 10583
Phone: (917) 373-9128
Email: shakedlawgroup@gmail.com
PERRY'S RESTAURANTS: Helgason Suit Seeks to Send FLSA Class Notice
------------------------------------------------------------------
In the class action lawsuit captioned as RIAN HELGASON and CAROLINE
CRAWFORD, individually and on behalf of all others similarly
situated, v. PERRY'S RESTAURANTS LTD; PERRY'S LLC; PBS HOLDINGS,
INC.; and LEASING ENTERPRISES, LTD, collectively d/b/a Perry's
Steakhouse and Grille; and CHRISTOPHER V. PERRY, individually, Case
No. 3:20-cv-01573-S (N.D. Tex.), the Plaintiffs ask the Court to
enter an order granting their motion for notice of a Fair Labor
Standards Act (FLSA) collective action and authorizing their
counsel to send the 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."
The action challenges Perry's company-wide policy that utilizes
hundreds of similarly situated servers to perform both tipped work
and non-tipped job duties at a rate of $2.13 per hour throughout
its locations in Texas.
According to the complaint, as servers, the Plaintiffs were all
paid a direct subminimum hourly wage of $2.13 per hour and, in
violation of the Fair Labor Standards Act (FLSA), were illegally
(1) required to contribute tips to a tip pool that was not fully
distributed solely among customarily and regularly tipped
employees; (2) 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; (3) required
to perform non-tipped work that exceeded twenty percent (20%) of
their time worked during each workweek at a rate of $2.13 per hour;
and (4) deducted (from their wages) for mandatory uniforms and
other-business related items.
The Named Plaintiffs, Rian Helgason and Caroline Crawford; and
Opt-in Plaintiffs, Dimitri Sebikal, Ian Dobelbower, Spencer Demoss,
Anthony Ferracioli, Melina Adashefski, Katelyn Keefe, Sara Sharif,
Josh Ramirez, Stephen Hunzelman, John Vilbig, Phylisha Martinez,
Ryan Dickman, Evelyn Martinez, Daniel Elizondo, and Ashleigh Scott
work, or worked, as servers for Perry's at one or more of its
restaurant locations in Texas within the three years preceding the
filing of this lawsuit.
The Defendant Perry's Restaurants owns and operates a chain of
restaurants with 14 locations in Texas commonly known as Perry's
Steakhouse or Perry's.
A copy of the Plaintiffs' motion to certify class dated March 8,
2020 is available from PacerMonitor.com at https://bit.ly/3cNfUJo
at no extra charge.[CC]
The Plaintiffs are represented by:
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) 840-5102
E-mail: drew@herrmannlaw.com
pamela@herrmannlaw.com
PEZ CANDY: Williams Files ADA Suit in S.D. New York
---------------------------------------------------
A class action lawsuit has been filed against Pez Candy, Inc. The
case is styled as Milton Williams, on behalf of himself and all
other persons similarly situated v. Pez Candy, Inc., Case No.
1:21-cv-02307 (S.D.N.Y., March 16, 2021).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Pez -- https://us.pez.com/ -- is the brand name of an Austrian
candy and associated manual candy dispensers.[BN]
The Plaintiff is represented by:
Michael A. LaBollita, Esq.
GOTTLIEB & ASSOCIATES
150 E. 18th Street, Suite Phr
New York, NY 10003
Phone: (212) 228-9795
Email: michael@gottlieb.legal
PHILLIPS 66: Schweitzer Files Certiorari Petition in ERISA Suit
---------------------------------------------------------------
Plaintiffs Jeffrey Schweitzer, et al., filed with the Supreme Court
of United States a petition for a writ of certiorari in the matter
styled Jeffrey Schweitzer, et al., Petitioners vs. Investment
Committee of the Phillips 66 Savings Plan, et al., Respondents,
Case No. 20-1255.
Response is due on April 9, 2021.
Mr. Schweitzer, et al., petition for a writ of certiorari to review
the judgment of the United States Court of Appeals for the Fifth
Circuit in the case titled JEFFERY SCHWEITZER, JONATHAN SAPP, RAUL
RAMOS, and DONALD FOWLER, Plaintiffs-Appellants v. THE INVESTMENT
COMMITTEE OF THE PHILLIPS 66 SAVINGS PLAN, SAM FARACE, JOHN DOES
1-10, INCLUSIVE, Defendants-Appellees, Case No. 18-20379. The Court
of Appeals affirmed the District Court's order granting the
Defendants' motion to dismiss the case for failure to state a
claim.
As previously reported in the Class Action Reporter, Four
participants in Phillips 66's retirement plan commenced the
putative class action against the plan's Investment Committee for
breach of fiduciary duties under the Employee Retirement Income
Security Act (ERISA). They allege that the Defendants failed to
monitor properly and divest ConocoPhillips stock from the
retirement plan.
In 2012, ConocoPhillips Corp., a large oil and gas company, spun
off Phillips 66 as a separate, independent company. ConocoPhillips
retained its upstream business, namely exploration and production,
while Phillips 66 took on the downstream business, including
refining, marketing, and transportation operations.
With the separation, about 12,000 ConocoPhillips employees became
employees of Phillips 66. Many of them had held assets in
individual retirement accounts in the ConocoPhillips Savings Plan
at the time of the separation. These accounts included large
investments in two single-stock funds comprised of ConocoPhillips
stock. As a result of the separation, each employee received one
share of Phillips 66 stock for every two shares of ConocoPhillips
stock held in their account. Afterward, Phillips 66 employees had
$2.9 billion in ConocoPhillips Plan assets, including $1.1 billion
invested in the ConocoPhillips Funds. The ConocoPhillips Plan
transferred these assets to the Phillips 66 Savings Plan, the newly
established retirement plan for Phillips 66 employees. After the
transfer, Phillips 66 Plan participants could retain or sell their
investments in the ConocoPhillips Funds, but could not make new
investments in the Funds.
As the Phillips 66 Plan is a defined contribution plan, each
participant has an individual account and benefits are based on the
amounts contributed to that participant's account. The Plan
participants decide how much to contribute to their accounts and
how to allocate their assets among an array of investment options
selected by the Plan's Investment Committee. The Phillips 66 Plan
allows participants to invest in two single-stock funds comprised
of Phillips 66 stock. Just a few months after the spin-off, the
Plan had $1.1 billion invested in the ConocoPhillips Funds and $0.9
billion in the Phillips 66 Funds. Together, these funds accounted
for 58% of the Plan's assets.
When ConocoPhillips spun off Phillips 66 on April 30, 2012,
ConocoPhillips's share price was about $55. Over the next two
years, its share price increased by more than 50%, reaching $86 by
June 2014. The Plaintiffs allege, however, that by the second half
of 2014, there were red flags indicating ConocoPhillips was a risky
investment. They point to publicly available information.
ConocoPhillips's share price fell to $69 by the end of 2014, $46 by
the end of 2015, and $40 by February 2016. When the Plaintiffs
filed this lawsuit in October 2017, the share price was $50.
The Plaintiffs allege that the Investment Committee and its members
("Fiduciaries") breached their fiduciary duties of diversification
and prudence under ERISA by failing to independently review the
merits of divesting the ConocoPhillips Funds. According to them,
the Fiduciaries incorrectly believed that ConocoPhillips was a
"qualifying employer security," an ESOP, and thus exempt from
certain diversification requirements.[BN]
Plaintiffs-Appellants-Petitioners Jeffrey Schweitzer, Jonathan
Sapp, Raul Ramos, and Donald Fowler are represented by:
Matthew W.H. Wessler, Esq.
GUPTA WESSLER PLLC
1900 L Street, NW Suite 312
Washington, DC 20036
E-mail: matt@guptawessler.com
PLENTYOFFISH MEDIA: Sanchez Files ADA Suit in S.D. New York
-----------------------------------------------------------
A class action lawsuit has been filed against PlentyofFish Media,
LLC. The case is styled as Cristian Sanchez, on behalf of himself
and all others similarly situated v. PlentyofFish Media, LLC, Case
No. 1:21-cv-02287 (S.D.N.Y., March 16, 2021).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Plentyoffish Media Inc. -- https://www.pof.com/ -- develops,
publishes, and operates an online dating site.[BN]
The Plaintiff is represented by:
Joseph H. Mizrahi, Esq.
COHEN & MIZRAHI LLP
300 Cadman Plaza West, 12th Floor
Brooklyn, NY 11201
Phone: (929) 575-4175
Fax: (929) 575-4195
Email: joseph@cml.legal
PORT PIZZA: $48.5K Class Settlement in Gee FLSA Suit Has Approval
-----------------------------------------------------------------
In the case, ROBERT GEE, DYLAN GRUBB, DARL HOFFMAN, and ERIC
RITTENHOUSE, individually and on behalf of all other similarly
situated individuals, Plaintiffs v. PORT PIZZA, LLC d/b/a DOMINO'S
PIZZA, and SHELDON PORT, Defendants, Case No. 4:20-CV-00256 (M.D.
Pa.), Judge Matthew W. Brann of the U.S. District Court for the
Middle District of Pennsylvania granted the Plaintiffs' Concurred
Motion for an Order Approving Settlement.
On Feb. 13, 2020, Plaintiffs Gee, Grubb, Hoffman, and Rittenhouse
filed a complaint against Defendants Port Pizza (doing business as
Domino's Pizza) and Sheldon Port. The Plaintiffs alleged
violations of the Fair Labor Standards Act and sought unpaid wages
based on several theories. They worked in various positions for
the Defendants, including delivering food and assisting customers
in-store.
The Defendants filed an answer to the complaint, and in July 2020,
the case mediator reported that the action was resolved. The
Plaintiffs filed the instant motion seeking Court approval of the
settlement agreement on Feb. 26, 2021, which provides for
settlement in the amount of $48,500, inclusive of attorneys' fees
and costs.
Having reviewed the Settlement Agreement reached by parties, Judge
Brann finds that it is both a fair and reasonable resolution of a
bona fide dispute over FLSA provisions and does not impermissibly
frustrate implementation of the FLSA in the workplace. First, he
finds that the proposed settlement resolves a bona fide factual
dispute, or one in which there is some doubt as to whether the
Plaintiffs would succeed on the merits at trial. Second, there is
no risk of the Plaintiffs losing the settlement as the result of
violating the agreement.
The Judge is also satisfied that the attorney's fees are
appropriate. Using the amount in proposed fees and the number of
hours worked, the hourly rate is $278. The Court has approved
settlement agreements seeking much higher hourly rates. Therefore,
it appears that the relevant factors weigh in favor of approving
the motion for fees and costs.
For these reasons, Judge Brann granted the Plaintiffs' Concurred
Motion for an Order Approving Settlement. He directed the Clerk to
close the case file.
A full-text copy of the Court's March 10, 2021 Memorandum Opinion &
Order is available at https://tinyurl.com/8m55d4jk from
Leagle.com.
PUBLIC PARTNERSHIPS: Talarico Seeks to Certify FLSA Class
---------------------------------------------------------
In the class action lawsuit captioned as RALPH TALARICO,
INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED, v.
PUBLIC PARTNERSHIPS, LLC, D/B/A/ PCG PUBLIC PARTNERSHIPS, Case No.
5:17-cv-02165-JLS (E.D. Pa.), the Plaintiff asks the Court to enter
an order:
1. certifying a class for all issues under Fed. R. Civ. P.
23(b):
"All direct care workers in Pennsylvania who provided
services to participants in the Medicaid Home and
Community-Based Services waiver program and were paid
through Public Partnerships, LLC, who worked more than 40
hours in a work week at any time from May 11, 2014 through
date of trial without receiving an overtime premium for
all hours over 40;" and
2. approving final collective action certification under the
Fair Labor Standards Act (FLSA) for the same class.
Public Partnerships LLC provides financial services.
A copy of the Plaintiff's motion to certify class dated March 5,
2020 is available from PacerMonitor.com at https://bit.ly/3ePo3Q8
at no extra charge.[CC]
The Plaintiff is represented by
Christine E. Webber, Esq.
COHEN MILSTEIN SELLERS & TOLL PLLC
1100 New York Ave. NW Fifth Floor
Washington, DC 20005
Telephone: (202) 408-4600
E-mail: cwebber@cohenmilstein.com
- and -
Richard Katz, Esq.
ARNOLD, BEYER & KATZ
140A East King Street
Lancaster, PA 17602
Telephone: (717) 394-7204
Facsimile: (717) 291-0992
E-mail: rkatz@arnoldbeyerkatz.com
- and -
Rachhana T. Srey, Esq.
Caroline Bressman, Esq.
NICHOLS KASTER, PLLP
4600 IDS Center, 80 South 8th Street
Minneapolis, MN 55402
Telephone: (612) 256-3200
Facsimile: (612) 215-6870
E-mail: srey@nka.com
cbressman@nka.com
PURELY ELIZABETH: Sanchez Files ADA Suit in S.D. New York
---------------------------------------------------------
A class action lawsuit has been filed against Purely Elizabeth LLC.
The case is styled as Cristian Sanchez, on behalf of himself and
all others similarly situated v. Purely Elizabeth LLC, Case No.
1:21-cv-02285 (S.D.N.Y., March 16, 2021).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Purely Elizabeth LLC -- https://purelyelizabeth.com/ -- provides
food products. The Company produces nutrient-dense granola,
oatmeal, muesli, and cereal products.[BN]
The Plaintiff is represented by:
Joseph H. Mizrahi, Esq.
COHEN & MIZRAHI LLP
300 Cadman Plaza West, 12th Floor
Brooklyn, NY 11201
Phone: (929) 575-4175
Fax: (929) 575-4195
Email: joseph@cml.legal
QUAD/GRAPHICS INC: Securities Fraud Suit Filed by Born Dismissed
----------------------------------------------------------------
In the lawsuit titled DENNIS BORN, MARILYNN BORN, and VALERIE
BLOOM, individually and on behalf of all others similarly situated,
Plaintiffs v. QUAD/GRAPHICS, INC., J. JOEL QUADRACCI, and DAVID J.
JONAN, Defendants, Case No. 19-CV-10376 (VEC) (S.D.N.Y.), the U.S.
District Court for the Southern District of New York grants the
Defendants' motion to dismiss and dismisses with prejudice the
Plaintiffs' amended complaint.
The Plaintiffs in the putative securities fraud class action are on
a fruitless endeavor to manufacture a fraud case out of a stock
drop that followed a company (in a struggling if not dying
industry) announcing that it would not meet its 2019 financial
projections and was reducing its dividend. The Plaintiffs have sued
Quad and two of its senior executives, J. Joel Quadracci, Quad's
Chairman, President, and Chief Executive Officer, and David J.
Honan, Quad's Executive Vice President and Chief Financial Officer,
on behalf of themselves and all others, who purchased or otherwise
acquired Quad's publicly traded class A common stock between
February 21, 2018, and October 29, 2019 (the "Class Period"),
alleging claims under Sections 10(b) and 20(a) of the Securities
Exchange Act of 1934, 15 U.S.C. Sections 78j(b), 78t(a), and
related regulations.
The Plaintiffs' claims concern alleged misrepresentations and
omissions touching on: Quad's corporate transformation plan; Quad's
attempted acquisition of a competitor, LSC Communications, Inc.;
and the nearly contemporaneous sale of a subsidiary and settlement
of SEC charges for Foreign Corrupt Practice Act ("FCPA")
violations.
On May 15, 2020, after having been appointed lead plaintiff, Alaska
Electrical Pension Fund filed an Amended Complaint ("AC").
Background
Quad has long had a large footprint in the printing business, with
a significant presence in the magazine, catalog, and book printing
markets. Starting around 2017, Quad, which until this time had been
focused on building scale and breadth in its printing business,
recognized that it was in a declining business sector; to respond
to broad and accelerating declines in the industry, Quad launched a
transformation plan to position itself as a "multi-channel,"
"marketing services provider."
Despite its transition to a marketing services firm, during the
Class Period, Quad's printing business remained its primary source
of revenue and a critically important part of its business. In
addition to difficulties caused by broad declines in the printing
business, Quad was engaged in intense competition with LSC, the
other significant player in the magazine, catalog, and book
printing sectors, with executives at both companies describing the
competition as particularly intense and resulting in a "price
war."
On October 31, 2018, Quad announced that it had agreed to acquire
LSC in an all-stock transaction valued at $1.4 billion, positioning
the combined company to be one of the, if not the, largest printing
companies in the nation. Quad disclosed that it expected to achieve
"net synergies" from the acquisition worth approximately $135
million within two years, with the majority of the benefits coming
from "capacity rationalization" and "administrative efficiencies."
In February 2019, Quad announced its 2019 financial guidance,
anticipating net sales of $4.05 to $4.25 billion, adjusted EBITDA
of $360 to $400 million, and free cash flow of $145 million to $185
million, while touting Quad's quarterly dividend of $0.30 per
share. Quad made explicit that its 2019 financial guidance did not
reflect the pending LSC acquisition. Even as it announced
disappointing results for the first and second quarters of 2019,
Quad reaffirmed its original 2019 guidance and noted that it
expected to achieve superior financial results in the second half
of the year.
Shortly after Quad announced the planned acquisition of LSC, the
Department of Justice ("DOJ") began reviewing the transaction. The
Defendants provided periodic public updates on DOJ's review,
indicating that it was going "as expected" and that they
anticipated that the deal would be approved. On June 20, 2019,
however, DOJ announced that it had sued to block Quad's acquisition
of LSC. The Defendants immediately announced that they were "fully
committed to defending the DOJ's lawsuit in court" and intended to
"vigorously defend" the acquisition.
Quad and LSC jointly asked the federal district court hearing DOJ's
suit to expedite the trial schedule to permit a decision to be made
in advance of the acquisition's "drop-dead date." The district
court declined to do so. Shortly thereafter, on July 23, 2019, Quad
announced that it was abandoning the LSC acquisition due to the
added costs and uncertainty from the delay, explaining that the
delay caused by the litigation "would have likely eroded a
considerable amount of the expected benefits of the merger." In the
wake of the aborted acquisition, LSC cut its financial guidance and
warned of anticipated poor financial performance; Quad, on the
other hand, reaffirmed its original 2019 financial guidance and
stated that it was on track to meet its projections.
Separately, on September 4, 2019, Quad announced that it was
selling its heavy-duty industrial wood crating business, Transpak
Corp., for approximately $10 million. Quad attributed the sale to
the 3.0 transition plan and stated that the net proceeds from the
sale would be "used to reduce debt." Three weeks later, on
September 26, 2019, Quad announced that it had agreed to pay
approximately $10 million to settle SEC charges that it had
violated the FCPA when its Peru and China-based subsidiaries
engaged in bribery schemes.
On October 29, 2019, Quad announced that it had missed its 2019
third-quarter ("3Q19") projections, was reducing its 2019 financial
guidance, and was cutting its quarterly dividend by 50% to $0.15
per share. Quad further announced that it had decided to divest its
book business and to engage in additional cost-reduction actions to
accelerate Quad 3.0. The following day, October 30, 2019, Quad's
stock price dropped $6.42 per share and closed at an all-time low
of $4.85 per share, despite steady results across the rest of the
market. Market analysts expressed surprise at Quad's announcement,
especially given Quad's affirmance of its guidance a quarter
earlier.
Motion to Dismiss
On July 14, 2020, the Defendants moved to dismiss the Complaint.
District Judge Valerie Caproni notes that to survive a motion to
dismiss under Rule 12(b)(6) of the Federal Rules of Civil
Procedure, "a complaint must allege sufficient facts, taken as
true, to state a plausible claim for relief," citing Johnson v.
Priceline.com, Inc., 711 F.3d 271, 275 (2d Cir. 2013) (citing Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 555-56 (2007)).
As this Court and others have held, "failing to meet Rule 9(b) and
the PSLRA's pleading requirements alone is reason to dismiss a
complaint."
Judge Caproni finds that the Amended Complaint fails to plead fraud
with particularity. She explains that the Plaintiffs' use of large
block quotes from SEC filings and press releases, followed by
generalized explanations of how the statements were false or
misleading, is not sufficient to satisfy the heightened pleading
requirements, citing In re Alcatel Sec. Litig., 382 F.Supp.2d 513,
534 (S.D.N.Y. 2005).
The Plaintiffs employ a 100-page, 268-paragraph Complaint, of which
69 paragraphs spanning over 30 pages are dedicated to reciting the
Defendants' statements during the Class Period, Judge Caproni
observes. This type of pleading is insufficient to support the
Plaintiffs' allegations that over 18 months' worth of statements,
only marginally winnowed down for purposes of the Complaint, are
all false or misleading.
The Plaintiffs' failure to plead fraud with the requisite
particularity is a fatal flaw that marks their entire Complaint and
inhibits them from successfully alleging either falsity or
scienter, Judge Caproni holds. Their Complaint is marked by an
utter lack of particularized factual allegations, as is evident in
the seven generalized paragraphs the Plaintiffs rely on to
demonstrate why all of the Defendants' Class Period statements were
false or misleading. The Plaintiffs' reference to these assertions
as "facts" does nothing to transform generalized statements into
particularized allegations. Ultimately, the Plaintiffs repeatedly
fall back on their same conclusory statements without alleging
specific facts and without adequately explaining with the required
specificity how 30 pages worth of statements, spanning an 18-month
Class Period, support the Plaintiffs' theory of fraud.
The Complaint is, therefore, dismissed for failing to meet the
heightened pleading standards of Rule 9(b) of the Federal Rules of
Civil Procedure and the Private Securities Litigation Reform Act
("PSLRA").
Even if the Plaintiffs' Complaint were properly categorized as
something other than "puzzle pleading" such that it met the
heightened requirements of Rule 9(b) and the PSLRA, the Plaintiffs
have failed to allege that any of the Defendants' material
statements were false or misleading, Judge Caproni opines.
Although the Plaintiffs contend that the Defendants' statements
make up a network of interrelated lies, each one slightly distinct
from the other, but all collectively aimed at perpetuating a
broader, material lie, they concede that the statements about which
they are complaining can be bucketed into three general categories:
(1) statements concerning Quad's 3.0 plan and the pace at which the
3.0 transition had to occur in order to offset general declines in
the printing business and to meet its 2019 financial projections;
(2) statements concerning Quad's attempted acquisition of LSC; and
(3) statements concerning Quad's sale of Transpak.
For each category, there is a dearth of particularized facts to
support the Plaintiffs' assertions that Defendants' statements were
false or misleading; instead, the Plaintiffs rely almost entirely
on conclusory statements concerning what the Defendants were
obligated to disclose to prevent their statements from being
"half-truths," Judge Caproni notes. Because the Plaintiffs have
failed to plead particularized, factual material that would permit
the Court to infer that the Defendants' statements were false or
misleading when made, the Plaintiffs have failed to allege
adequately that any of the Defendants' statements were false or
misleading.
Judge Caproni also notes that just as the Plaintiffs' pleading
deficiencies inhibit their ability to plead falsity adequately, so
too do they prevent the Plaintiffs from adequately pleading
scienter. The PSLRA requires that a securities fraud complaint
"state with particularity facts giving rise to a strong inference"
that the defendant acted with "a mental state embracing intent to
deceive, manipulate, or defraud."
The Plaintiffs' proffered theory of motive is that the Defendants
sought to inflate artificially the price of Quad stock to acquire
LSC in an all-stock deal for fewer shares than would otherwise have
been required absent the fraudulently-inflated stock price.
Unaccompanied by the desire to achieve some articulable goal, a
general allegation that defendants sought to inflate the price of a
company's stock falls far short of the PSLRA's pleading
requirements, Judge Caproni holds. The Plaintiffs' theory of motive
is more particularized than the general desire to increase Quad's
stock price, although only marginally so.
The Plaintiffs assert in a completely conclusory fashion that the
Defendants sought to artificially inflate Quad's stock price to
complete the LSC acquisition, Judge Caproni notes. The Plaintiffs
do not plead any particularized facts to support their motive
allegation, such as facts demonstrating that the inflation of
Quad's stock price was necessary to consummate the LSC
acquisition.
The Plaintiffs also fail to explain how their motive allegation can
support their sweeping theory of fraud covering the entirety of the
Defendants' alleged material misstatements and omissions throughout
the 18-month Class Period, Judge Caproni finds. The Plaintiffs also
fail to plead facts raising a strong inference that the Defendants'
statements were made recklessly or with conscious disregard of the
truth. In short, the Plaintiffs have failed to allege facts giving
rise to an inference of scienter more compelling than other
non-fraudulent inferences, the Judge adds.
As a final, independent reason to dismiss the Complaint, the Judge
opines that the Plaintiffs fail to allege adequately loss
causation. Loss causation is "the causal link between the alleged
misconduct and the economic harm ultimately suffered by the
plaintiff."
The Plaintiffs contend that their burden to demonstrate loss
causation is not overly significant and requires only that they
allege facts raising a reasonable inference that some part of the
decline in Quad's share price was substantially caused by a
disclosure of fraud. The Plaintiffs have not, however, alleged the
existence of any corrective disclosures, Judge Caproni finds. The
Defendants' October 30, 2019, announcement contained no information
that even remotely suggests that the Defendants' prior statements
regarding Quad 3.0, the LSC acquisition, or the Transpak sale were
false or misleading.
Because the Plaintiffs fail to allege facts from which the Court
can infer that the Defendants' end-of-Class-Period disclosures
revealed fraud to the market, the Plaintiffs are reduced to relying
solely on the Defendants' revelation of poor financial results and
concomitant market dissatisfaction to allege loss causation. That
is simply not enough, Judge Caproni holds.
For these reasons, the Defendants' motion to dismiss is granted.
Because the Plaintiffs had an opportunity to amend their pleadings
in response to the Defendants' motion to dismiss, and because the
arguments made in response to the motion to dismiss give no
indication that the Complaint's defects are curable, the Plaintiffs
are denied leave to amend.
The Amended Complaint is, therefore, dismissed with prejudice. The
Clerk of Court is directed to close all open motions and close this
case.
A full-text copy of the Court's Opinion and Order dated Feb. 25,
2021, is available at https://tinyurl.com/yynkd6bd from
Leagle.com.
ROCKY MOUNTAIN: Williams Files ADA Suit in S.D. New York
--------------------------------------------------------
A class action lawsuit has been filed against Rocky Mountain
Chocolate Factory, Inc. The case is styled as Milton Williams, on
behalf of himself and all other persons similarly situated v. Rocky
Mountain Chocolate Factory, Inc., Case No. 1:21-cv-02309 (S.D.N.Y.,
March 16, 2021).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Rocky Mountain Chocolate Factory -- https://www.rmcf.com/ -- is an
international franchisor, confectionery manufacturer and retail
operator in the United States, Canada, Japan, the Philippines, and
the United Arab Emirates.[BN]
The Plaintiff is represented by:
Michael A. LaBollita, Esq.
GOTTLIEB & ASSOCIATES
150 E. 18th Street, Suite Phr
New York, NY 10003
Phone: (212) 228-9795
Email: michael@gottlieb.legal
RONNOCO COFFEE: Sanchez Files ADA Suit in S.D. New York
-------------------------------------------------------
A class action lawsuit has been filed against Ronnoco Coffee, LLC.
The case is styled as Cristian Sanchez, on behalf of himself and
all others similarly situated v. Ronnoco Coffee, LLC, Case No.
1:21-cv-02355 (S.D.N.Y., March 17, 2021).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Ronnoco Coffee -- https://www.ronnoco.com/ -- and beverage related
products are available online or as part of a custom coffee program
for c-stores, offices, casinos, restaurants and more.[BN]
The Plaintiff is represented by:
Joseph H. Mizrahi, Esq.
COHEN & MIZRAHI LLP
300 Cadman Plaza West, 12th Floor
Brooklyn, NY 11201
Phone: (929) 575-4175
Fax: (929) 575-4195
Email: joseph@cml.legal
ROYAL CUP: Sanchez Files ADA Suit in S.D. New York
--------------------------------------------------
A class action lawsuit has been filed against Royal Cup Inc. The
case is styled as Cristian Sanchez, on behalf of himself and all
others similarly situated v. Royal Cup Inc., Case No. 1:21-cv-02353
(S.D.N.Y., March 17, 2021).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Royal Cup -- https://www.royalcupcoffee.com/ -- is a major importer
and roaster of specialty coffees and fine teas with a nationwide
distribution network.[BN]
The Plaintiff is represented by:
Joseph H. Mizrahi, Esq.
COHEN & MIZRAHI LLP
300 Cadman Plaza West, 12th Floor
Brooklyn, NY 11201
Phone: (929) 575-4175
Fax: (929) 575-4195
Email: joseph@cml.legal
SAFECO INSURANCE: Garth Files Suit in N.D. Ohio
-----------------------------------------------
A class action lawsuit has been filed against Safeco Insurance
Company of Illinois. The case is styled as Wendall C. Garth,
individually and on behalf of all others similarly situated v.
Safeco Insurance Company of Illinois, Case No. 1:21-cv-00602-JPC
(N.D. Ohio, March 16, 2021).
The nature of suit is stated as Insurance for Breach of Contract.
Safeco Insurance -- https://www.safeco.com/ -- offers car
insurance, home insurance and other personal insurance through
independent insurance agents.[BN]
The Plaintiff is represented by:
Andrew Shamis, Esq.
SHAMIS & GENTILE, PA
14 NE 1st Ave, Ste. 705
Miami, FL 33132
Phone: (305) 479-2299
Fax: (786) 623-0915
Email: ashamis@shamisgentile.com
- and -
Scott A. Edelsberg, Esq.
EDELSBERG LAW
20900 N.E. 30th Avenue., Ste. 417
Aventura, FL 33180
Phone: (305) 975-3320
Email: scott@edelsberglaw.com
- and -
Stuart E. Scott, Esq.
Kevin C. Hulick, Esq.
SPANGENBERG, SHUBLEY & LIBER
1001 Lakeside Avenue, E., Ste. 1700
Cleveland, OH 44114
Phone: (216) 696-3232
Fax: (216) 696-3924
Email: sscott@spanglaw.com
khulick@spanglaw.com
SEPHORA USA: Bid to Stay & to Dismiss Femmer Suit Granted in Part
-----------------------------------------------------------------
The U.S. District Court for the Eastern District of Missouri
granted in part and denied in part the Defendant's motion to stay
and to dismiss in the lawsuit captioned TIFFANY FEMMER, et al.,
Plaintiffs v. SEPHORA USA, INC., Defendant, Case No. 4:20 CV 676
JMB (E.D. Mo.).
Currently pending before the Court is Defendant Sephora's motion,
pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure.
The motion seeks relief in several forms. With respect to Plaintiff
Kathryn Schott, the Defendant asks the Court to stay the matter
pursuant to the Federal Arbitration Act or, in the alternative to
dismiss Schott's claims. With respect to Plaintiff Tiffany Femmer,
the Defendant asks the Court to dismiss all claims. The Plaintiffs
have filed responses in opposition and the issues are fully
briefed. The parties have consented to the jurisdiction of
Magistrate Judge John M. Bodenhausen pursuant to 28 U.S.C. Section
636.
Plaintiffs Femmer and Schott allege that Defendant Sephora charges
excess use taxes on products purchased through "remote sales
channels" and shipped to addresses in Missouri from out-of-state
facilities. On January 30, 2020, each Plaintiff purchased a product
from the Defendant's website for shipment to addresses in Missouri.
The Plaintiffs allege that the use tax applicable to their
purchases was 4.225%, but the Defendant charged Plaintiff Femmer
11.692% and Plaintiff Schott 12.667%.
In the putative class action, the Plaintiffs bring claims for
violation of the Missouri Merchandising Practices Act (MMPA), Mo.
Rev. Stat. Sections 407.010, et seq., unjust enrichment,
negligence, and money had and received. The Defendant removed the
matter to this Court, pursuant to the Class Action Fairness Act
(CAFA), 28 U.S.C. Section 1332(d). The Defendant argues, first,
that Plaintiff Schott's claims are governed by arbitration
agreements included in the user account she created when she made
her purchase and, second, that the Plaintiffs fail to state claims
for relief.
Motion to Compel Arbitration
On January 30, 2020, Plaintiff Schott created a user account on the
Defendant's website and joined the "Beauty Insider" loyalty
program. To create an account, Plaintiff Schott was required to
enter her personal information and click a button labeled "Join
Now." The following statement appears immediately below the "Join
Now" button: "By clicking 'Join Now' you acknowledge that you agree
to Sephora's Terms of Use and Beauty Insider Terms." The statement
included hyperlinks to the complete Terms. Other links to the Terms
appeared on the Sephora website and Beauty Insider webpage.
The Terms of Use and Beauty Insider Terms both contain an agreement
to arbitrate disputes. The Arbitration Provisions permits users to
opt out of arbitration by sending Sephora an email within 30 days
of signing up for an account. Sephora did not receive an opt-out
email from Plaintiff Schott.
Plaintiff Schott asserts that, in the Eighth Circuit, a defendant
acts inconsistently with its right to arbitrate when it files a
motion to compel arbitration simultaneously with its motion to
dismiss. In support of this assertion, the Plaintiff cites Lewallen
v. Green Tree Servicing, L.L.C., 487 F.3d at 1089 (8th Cir. 2007).
The Plaintiffs filed suit in state court on March 19, 2020. The
Defendant was served on April 22, 2020, and removed the matter to
this Court on May 21, 2020. On May 22, 2020, the Defendant filed an
unopposed motion for extension of time until July 10, 2020, to file
its response to the complaint, citing the disruption caused by the
COVID pandemic.
On June 22, 2020, the Plaintiffs filed motions to remand and for
jurisdictional discovery, asserting that the Defendant's
allegations in its notice of removal failed to establish that
damages satisfied the amount-in-controversy requirement. The
parties then jointly moved for an extension of the briefing
schedule on the Plaintiffs' motions and for extension of the
Defendant's deadline to respond to the complaint, which the Court
granted. On September 21, 2020, the Court denied the Plaintiffs'
remand and discovery motions. The Defendant again moved for an
extension to file its response to the complaint. On October 19,
2020, the Defendant filed the present motion to compel arbitration
and/or dismiss Plaintiff Schott's claims and to dismiss Plaintiff
Femmer's claims.
According to the Court's Memorandum and Order, the Defendant's
conduct in the case is a far cry from that at issue in Lewallen.
First, there was only a five-month delay between the Defendant's
removal and its motion to compel arbitration, and three months of
that delay are attributable to briefing and ruling on the
Plaintiffs' motion to remand. The Defendant's requests for
additional time to respond to the complaint were entirely
reasonable in light of the COVID-19 pandemic and resultant
shut-down.
To the extent that Plaintiff Schott implies that removal itself
resulted in waiver, that argument has been rejected, Judge
Bodenhausen holds, citing Randazzo v. Anchen Pharm., Inc., No.
4:12-CV-999 CAS, 2012 WL 5051023, at *8 (E.D. Mo. Oct. 18, 2012),
that the mere act of removing a case to federal court does not
constitute a waiver of the right to arbitrate. Unlike the defendant
in Lewallen, the Defendant clearly asks the Court to enforce the
arbitration agreement and to reach the merits of Plaintiff Schott's
claims only in the alternative.
The Court has reviewed the other cases cited by the Plaintiff and
concludes that they all present substantially different scenarios.
Hence, the Plaintiff has failed to show that the Defendant acted
inconsistently with its right to arbitrate the claims in this
dispute.
Plaintiff Schott fares no better with her assertion of prejudice,
Judge Bodenhausen finds. The Plaintiff argues that the Defendant's
combined motion to compel arbitration and to dismiss requires a
duplication of effort because she has been forced to respond to two
significant motions.
Judge Bodenhausen opines that missing from this argument is any
acknowledgment that her lawyer was required to respond to the
dismissal motion on behalf of Plaintiff Femmer. Thus, Plaintiff
Schott cannot establish that she is prejudiced by the need to
respond to the motion to compel arbitration or dismiss
simultaneously.
The Court also rejects Plaintiff Schott's argument that the
Defendant waived its right to have her claims decided by an
arbitrator. It concludes that the Defendant did not waive its right
to arbitrate Plaintiff Schott's claims. Furthermore, any issues
regarding the validity or applicability of the arbitration
agreement to this dispute must be referred to the arbitrator and,
finally, the arbitration provision in the matter is not
unconscionable. Accordingly, the Defendant's motion to stay
Plaintiff Schott's claims pursuant to the Arbitration Provision
will be granted.
Motion to Dismiss Plaintiff Femmer's Claims
Plaintiff Femmer seeks certification of a class of all persons or
entities, who purchased a product from the Defendant through a
remote sales channel for delivery to a Missouri address that were
charged tax monies at a higher tax rate than the lower use tax
rate. She identifies the following common class issues: whether the
Defendant's calculation and collection of incorrect tax rates
constitutes an unlawful, unfair, and unethical practice; whether
the Defendant profited from collecting incorrect taxes; whether the
Defendant was negligent in calculating taxes; whether the
Defendant's customers were damaged by its unlawful tax practice;
whether the Defendant is required to return "tax" monies to class
members; whether the Defendant acted with malice; whether class
members conferred an unfair benefit on the Defendant; whether the
Defendant should be enjoined from continuing its tax practices; and
whether the Defendant should pay attorneys' fees.
The Defendant seeks dismissal of Plaintiff Femmer's claims, arguing
that claims for refunds of overpaid taxes can only be pursued
through a statutory refund procedure established by the State of
Missouri. In the alternative, the Defendant argues that Plaintiff
Femmer fails to make allegations required to support her MMPA
claim, that her claims for unjust enrichment and money had and
received are barred by the parties' express contract, and that her
negligence claim fails because the Defendant did not owe her a duty
and she suffered only economic losses.
Exclusive Remedy
The Defendant asserts that the State is the true equitable owner of
the excess taxes it allegedly collected and argues that the
Plaintiff's sole remedy is to seek repayment through Missouri's
exclusive process for adjudicating tax overpayments, as set forth
at Section 144.190, Mo.Rev.Stat.
The Plaintiff argues that Section 144.190.4 does not apply to her
claims because she is not seeking a tax refund and, further, that
the statute does not apply to claims against a nongovernmental
corporate entity.
The Court agrees with the Plaintiff that this case is not properly
classified as a tax refund case. Rather, she alleges that the
Defendant engages in a practice of applying a charge for
miscalculated taxes. The remedy she seeks is not a tax refund but
damages for a practice that she alleges may be unlawful, unfair,
unethical, and possibly profitable to the Defendant. Accordingly,
the Defendant's motion to dismiss based on Section 144.190.4 will
be denied.
Sufficiency of Plaintiff Femmer's MMPA Claim
The Defendant first argues that the Plaintiff's MMPA claim should
be dismissed because she alleges a misrepresentation of law, not
fact, which cannot be considered a misrepresentation under the
MMPA. In making this argument, the Defendant reduces the
Plaintiff's claim to an allegation that the Defendant required
class members to pay tax amounts that it represented as correct as
a matter of the applicable tax law when they were wrong as a matter
of tax law.
The Court disagrees with this narrow characterization of the
Plaintiff's claim and rejects this argument.
The Defendant also argues that the Plaintiff's MMPA claim must be
dismissed because she does not allege that her purchase was made
primarily for personal, family or household purposes, nor does she
appropriately limit her class definition. In the case cited by the
Defendant, Anderson v. High-Tech Inst., No. 11-0506-CV-W-SOW, 2013
WL 12203311, at *2 (W.D. Mo. Jan. 25, 2013), plaintiffs alleged
that defendant High Tech Institute--a for-profit vocational
institute--misrepresented the benefits of enrolling in its
programs. The district court dismissed plaintiffs' MMPA claim
because their complaint was "rife with allegations suggesting that
their purposes for enrolling in High Tech were business-related."
Here, Judge Bodenhausen notes, the Plaintiff alleges that she
bought eyeliner, which would appear to be a product bought for
personal use. Furthermore, as the Plaintiff notes, the Defendant
states in its Terms that its products are for personal use only.
Nonetheless, because the Plaintiff wishes to certify a class, the
Court thinks it is appropriate for her to amend her MMPA claim and
class allegations to make the required allegation more explicitly.
The Defendant's motion to dismiss the Plaintiff's MMPA claim will
be granted, without prejudice to her ability to amend.
Claims for Unjust Enrichment and Money Had and Received
The Defendant argues that the Plaintiff Femmer's claims must be
dismissed because they are precluded by the parties' express
contract for the purchase and delivery of eyeliner. The Court finds
that the Plaintiff's claim that the Defendant collected monies in
excess of the lawful amount falls outside the scope of the parties'
contract. The Defendant's related argument that the Plaintiff
received the benefit of the bargain she made and, thus, cannot
establish that it unjustly retained a benefit fails for the same
reason, Judge Bodenhausen points out.
The Defendant also argues that the Plaintiff's claims fail under
the "voluntary payment" doctrine, pursuant to which "a voluntary
payment, made under a mistake of law but not fact, cannot be
recovered in an unjust enrichment claim." Howard v. Turnbull, 316
S.W.3d 431, 437 (Mo. Ct. App. 2010). The Court has already rejected
the Defendant's characterization of the Plaintiff's claim as
alleging a mistake of law.
Finally, the Defendant argues it was obligated to remit any taxes
it collected to the State and, thus, the Plaintiff cannot properly
claim that it received and retained the excess funds. Judge
Bodenhausen opines that this argument cannot prevail at the
dismissal stage because there is no evidence regarding what the
Defendant did with the excess monies it collected.
Negligence
The Defendant argues that Plaintiff Femmer's negligence claim must
be dismissed because she cannot establish that it owes her a duty.
Whether a legal duty exists is a question of law, Judge Bodenhausen
notes, citing Stein v. Novus Equities Co., 284 S.W.3d 597, 605 (Mo.
Ct. App. 2009). A legal duty may arise under at least three
sources: (1) the legislature; (2) the law; or (3) a contract. The
Plaintiff argues that Missouri's statutes regarding the collection
of use taxes create a public duty. The Defendant contends that the
language of these statutes is insufficiently clear to impose a
public duty upon vendors, but cites no case law to aid the Court in
assessing this argument.
The Defendant further argues that, even if the statutes do create a
"public duty," the Plaintiff's negligence claim is barred by the
economic loss doctrine. In Missouri, the economic loss doctrine
bars a plaintiff from seeking to recover in tort for economic
losses that are contractual in nature. The Court has not identified
any cases stating that the public duty exception is so limited.
The Defendant may indeed be correct that it owes no duty to the
Plaintiff and that the economic loss doctrine bars her claims; but
its arguments on these points are not sufficiently developed, Judge
Bodenhausen holds. Accordingly, the Defendant's motion to dismiss
the negligence claim will be denied.
Conclusion
Accordingly, the Court ruled that:
-- Defendant's motion to stay and to dismiss is granted in
part and denied in part;
-- Defendant's motion to stay with respect to Plaintiff Schott
pursuant to the parties' agreement to arbitrate is granted;
-- Defendant's motion to dismiss Plaintiff Femmer's claims
pursuant to Rule 12(b)(6) is granted in part and denied in
part;
-- Plaintiff Femmer's claim under the MMPA is dismissed
without prejudice to amendment; and
-- Plaintiff Femmer may file an amended complaint.
A full-text copy of the Court's Memorandum and Order dated Feb. 25,
2021, is available at https://tinyurl.com/a9763snh from
Leagle.com.
SID GAUTREAUX: Belton Asks Court to Reconsider Dismissal of Suit
----------------------------------------------------------------
In the class action lawsuit captioned as CLIFTON BELTON, JR., JERRY
BRADLEY, CEDRIC FRANKLIN, CHRISTOPHER ROGERS, JOSEPH WILLIAMS,
WILLIE SHEPHERD, DEVONTE STEWART, CEDRIC SPEARS, DEMOND HARRIS, and
FORREST HARDY, individually and on behalf of all others similarly
situated, v. SHERIFF SID GAUTREAUX, in his official capacity as
Sheriff of East Baton Rouge; LT. COL. DENNIS GRIMES, in his
official capacity as Warden of the East Baton Rouge Parish Prison;
CITY OF BATON ROUGE/PARISH OF EAST BATON ROUGE, Case No.
3:20-cv-00278-BAJ-SDJ (M.D. La.), the Plaintiff asks the Court for
reconsideration of the Court's February 4, 2021 opinion granting
the Defendants' motions to dismiss.
The Plaintiff contends that the factual and legal errors contained
in thec opinion merit reconsideration.
-- First, the opinion erroneously failed to accept the
Plaintiffs' alleged facts as true, consider the Complaint
as a whole, and draw all plausible inferences in
Plaintiffs' favor.
-- Second, the opinion improperly imports a heightened
deliberate indifference standard into the "reasonable
relationship" test governing Fourteenth Amendment
conditions-of-confinement challenges.
-- Third, in reviewing Plaintiffs' Eighth Amendment claims
for post-trial detainees, the opinion made a clear error
in importing a heightened requirement for Defendants’ ill-
intent into a claim for deliberate indifference and in
crediting any actions taken by Defendants as sufficient to
meet the constitutional standard at issue.
A copy of the Plaintiffs' motion dated March 8, 2020 is available
from PacerMonitor.com at https://bit.ly/2Nx30a2 at no extra
charge.[CC]
The Plaintiff is represented by:
David J. Utter, Esq.
William R. Claiborne, Esq.
FAIR FIGHT INITIATIVE
410 East Bay Street
Savannah, GA 31401
Telephone: (912) 236-9559
E-mail: david@fairfightinitative.org
will@fairfightinitative.org
- and -
Lillian S. Hardy, Esq.
Jessica B. Bigby, Esq.
HOGAN LOVELLS US LLP
555 Thirteenth Street NW
Washington, DC 20004
Telephone: (202) 637-5884
E-mail: Lillian.Hardy@hoganlovells.com
Jessica.Bigby@HoganLovells.com
- and -
Thomas B. Harvey, Esq.
Miriam R. Nemeth, Esq.
Tiffany Yang, Esq.
ADVANCEMENT PROJECT NATIONAL
OFFICE
1220 L Street NW, Suite 850
Washington, DC 20005
Telephone: (202) 728-9557
E-mail: tharvey@advancementproject.org
mnemeth@advancementproject.org
tyang@advancementproject.org
- and -
William P. Quigley, Esq.
Loyola University New Orleans
7214 St. Charles Avenue
Campus Box 902
New Orleans, LA 70117
- and -
Lillian S. Hardy, Esq.
Robert L. Toll, Esq.
David Bastian, Esq.
Jessica B. Bigby
HOGAN LOVELLS US LLP
390 Madison Avenue
New York, NY 10017
Telephone: (212) 918-307
E-mail: Robert.Toll@hoganlovells.com
Lillian.Hardy@hoganlovells.com
Jessica.Bigby@HoganLovells.com
David.Bastian@hoganlovells.com
- and -
Baher Azmy, Esq.
Omar Farah, Esq.
CENTER FOR CONSTITUTIONAL
RIGHTS
666 Broadway, 7th Floor
New York, NY 11201
Telephone: (212) 614-6427
E-mail: bazmy@ccrjustice.org
ofarah@ccrjustice.org
SMITH MEDICAL: $4.5MM Class Settlement in Arkin Suit Gets Final OK
------------------------------------------------------------------
The U.S. District Court for the Middle District of Florida issued a
Final Approval Order approving the $4.5 million settlement in the
cases styled Steven Arkin, Plaintiff v. Smith Medical Partners, LLC
and H. D. Smith, LLC, Defendants, Case No. 8:19-cv-1723-CEH-AEP
(M.D. Fla.), and William D. Sawyer, M.D., Pressman, Inc., et al. v.
Smith Medical Partners, LLC and H. D. Smith, LLC, Case No.
8:19-cv-02410 (M.D. Fla.).
On August 4, 2020, the Court entered an order granting preliminary
approval of the settlement between Plaintiff Pressman, on its own
behalf and on behalf of the Settlement Class and the Defendants, as
memorialized in the Settlement Agreement.
On December 10, 2020, the Court held a fairness hearing, for which
members of the Settlement Class had been given appropriate notice
and were invited to appear, including those with any objections.
District Judge Charlene Edwards Honeywell grants Plaintiff
Pressman's Motion in Support of Final Approval of Class Action
Settlement. Pressman's Motion and Memorandum in Support of Award of
Attorneys' Fees and Expenses to Class Counsel, and For an Incentive
Award to the Class Representative is granted in part and denied in
part. The motion is denied to the extent that no incentive award
will be approved for the class representative. In all other
respects the motion is granted.
Pursuant to Rule 23(e) of the Federal Rules of Civil Procedure, the
settlement of the action, as embodied in the terms of the
Settlement Agreement, is approved as a fair, reasonable and
adequate settlement of the case in the best interests of the
Settlement Class. The Parties and their counsel will implement and
consummate the Settlement Agreement according to its terms and
provisions. The Settlement Agreement is binding on and has res
judicata and preclusive effect in all pending and future lawsuits
or other proceedings brought or maintained by or on behalf of the
Plaintiff and all other Settlement Class Members, who have not
opted out of the Settlement. Any timely objections that were filed
have been considered and are overruled. Accordingly, all members of
the Settlement Class, who have not opted out, are bound by the
Order finally approving the Settlement.
The following Settlement Class is now certified for purposes of
settlement pursuant to Rules 23(a) and (b)(3): "All persons who
were sent, by or on behalf of H. D. Smith, LLC or Smith Medical
Partners, LLC, one or more advertisements by facsimile from
September 26, 2013 through January 25, 2019." Excluded from the
Settlement Class are the Defendants, any parent, subsidiary,
affiliate or controlled person of either Defendant, as well as the
members, managers, officers, directors, agents, servants or
employees of either Defendant, the immediate family members of such
persons, and this Court.
The Settlement Agreement is approved and will govern all issues
regarding the settlement and all rights of the Parties, including
the Settlement Class Members. Each Class Member (including any
person or entity claiming by or through him, her or it) will be
bound by the Settlement Agreement, including being subject to the
Releases set forth in the Settlement Agreement.
Pressman is designated as the representative of the Settlement
Class.
The Court has approved the form of notice to the Settlement Class.
No objections were received by members of the class. No persons
requested exclusion from the Settlement Class or the settlement.
The Defendants have agreed to pay $4.5 million into a settlement
fund under the Court's jurisdiction and control and make it
available to pay approved class member claims, class action
settlement administration costs, attorneys' fees, costs, and
expenses, as determined and awarded by this Court. No portion of
the Settlement Fund will revert to the Defendants.
As provided in the Settlement Agreement, each member of the
Settlement Class, who submitted a timely and valid Claim Form, will
be mailed a check for their pro rata share of the Settlement Fund,
defined as one share per facsimile number appearing in the Class
List. The Settlement Administrator will mail checks in the
appropriate amount to those claimants. Checks issued to the
claiming Settlement Class members will be void 90 days after
issuance and any amount from stale and voided checks will be paid
to those class members who did cash their checks. After a second
distribution, any remaining money will be paid as cy pres to Bay
Area Legal Services.
All claims or causes of action of any kind by the Plaintiff and the
Settlement Class Members, who have not timely opted out or
otherwise excluded themselves from the Settlement Class, are
forever barred and released pursuant to the terms of the releases
set forth in Section V of the Settlement Agreement.
The Action is dismissed with prejudice as to the Plaintiff and all
members of the Settlement Class, and without fees or costs except
as provided for in the Settlement Agreement.
The Court approved the Class Counsel's request for attorneys' fees
in the total amount of $1.25 million and for out-of-pocket expenses
of $23,176.74. Those amounts will be paid from the Settlement Fund
when the Final Judgment and Order becomes Final as those terms are
defined in the Settlement Agreement. No incentive award is approved
for the class representative. No portion of the attorneys' fees
will be paid to non-class counsel, Anderson + Wanca. A separate
Order will issue denying Plaintiff Arkin's Motion for Attorneys'
Fees in the Event the Pressman Settlement Gains Final Approval.
The consolidated action is dismissed with prejudice. The Clerk is
directed to close these consolidated cases.
A full-text copy of the Court's Final Approval Order dated Feb. 25,
2021, is available at https://tinyurl.com/34dvdjz2 from
Leagle.com.
SPIRIT AEROSYSTEMS: Bid to Dismiss Accounting Review Suit Pending
-----------------------------------------------------------------
Spirit AeroSystems Holdings, Inc. said in its Form 10-K report
filed with the U.S. Securities and Exchange Commission on February
25, 2021, for the fiscal year ended December 31, 2020, that the
motion to dismiss the consolidated securities class action suit
related to accounting review, is pending.
On February 10, 2020, February 24, 2020, and March 24, 2020, three
separate private securities class action lawsuits were filed
against the Company in the U.S. District Court for the Northern
District of Oklahoma, its Chief Executive Officer, Tom Gentile III,
former chief financial officer, Jose Garcia, and former controller
(principal accounting officer), John Gilson.
On April 20, 2020, the Class Actions were consolidated by the
court, and on July 20, 2020, the plaintiffs filed a Consolidated
Class Action Complaint which added Shawn Campbell, the Company's
former Vice President for the 737NG and 737 Max program, as a
defendant.
Allegations in the Consolidated Class Action include (i) violations
of Section 10(b) of the Securities Exchange Act of 1934, as amended
and Rule 10b-5 promulgated thereunder against the Company and
Messrs. Gentile, Garcia and Gilson, (ii) violations of Section
20(a) of the Exchange Act against the individual defendants, and
(iii) violations of Section 10(b) of the Exchange Act and Rule
10b-5(a) and (c) promulgated thereunder against all defendants.
On June 11, 2020, a shareholder derivative lawsuit was filed
against the Company (as nominal defendant), all members of the
Company's Board of Directors, and Messrs. Garcia and Gilson in the
U.S. District Court for the Northern District of Oklahoma.
Allegations in the Derivative Action 1 include (i) breach of
fiduciary duty, (ii) abuse of control, and (iii) gross
mismanagement. On October 5, 2020, a shareholder derivative lawsuit
(the "Derivative Action 2" and, together with Derivative Action 1,
the "Derivative Actions") was filed against the Company (as nominal
defendant), all members of the Company's Board of Directors, and
Messrs. Garcia and Gilson in the Eighteenth Judicial District,
District Court of Sedgwick County, Kansas. Allegations in the
Derivative Action 2 include (i) breach of fiduciary duty, (ii)
waste of corporate assets, and (iii) unjust enrichment.
The facts underlying the Consolidated Class Action and Derivative
Actions relate to the accounting process compliance independent
review discussed in the Company's January 30, 2020 press release
and described under Management's Discussion and Analysis of
Financial Condition and Results of Operations - Accounting Review
of the Annual Report on Form 10-K for the year ended December 31,
2019, and its resulting conclusions.
The Company voluntarily reported to the SEC the determination that,
with respect to the third quarter of 2019, the Company did not
comply with its established accounting processes related to
potential third quarter contingent liabilities received after the
quarter-end. On March 24, 2020, the Staff of the SEC Enforcement
Division informed the Company that it had determined to close its
inquiry without recommending any enforcement action against the
Company.
In addition, the facts underlying the Consolidated Class Action and
Derivative Actions relate to the Company's disclosures regarding
the B737 MAX grounding and Spirit's production rate (and related
matters) after the grounding.
On September 18, 2020, the Company and individual defendants filed
a motion to dismiss the Consolidated Class Action. That motion is
pending. The Derivative Actions have been stayed pending a decision
on the Consolidated Class Action.
The Company and the individual defendants deny the allegations in
the Consolidated Class Action and the Derivative Action.
Spirit AeroSystems Holdings, Inc., through its subsidiaries,
designs, manufactures, and supplies commercial aero structures
worldwide. It operates through three segments: Fuselage Systems,
Propulsion Systems, and Wing Systems. Spirit AeroSystems Holdings,
Inc. was founded in 1927 and is headquartered in Wichita, Kansas.
SPRINGFIELD, MA: Court Narrows Claims in Savage & Blake Class Suit
------------------------------------------------------------------
In the class action lawsuit captioned as MARC SAVAGE and RANDOLPH
BLAKE, v. THE CITY OF SPRINGFIELD, SPRINGFIELD FIRE DEPARTMENT,
FIRE COMMISSIONER BERNARD J. CALVI, and FORMER FIRE COMMISSIONER
JOSEPH CONANT, Case No. 3:18-cv-30164-KAR (D. Mass.), the Hon.
Judge Katherine A. Robertson entered an order granting in part and
denying in part the Defendants' motion to dismiss.
1. The Defendants' motion is granted insofar as it seeks
dismissal of all claims against the Springfield Fire
Department;
2. The Defendants' motion is granted insofar as it seeks
dismissal of Plaintiffs' Title VII discrimination claim
against Conant;
3. The Defendants' motion is granted insofar as it seeks
dismissal of Plaintiffs' Title VII claim against
Springfield for discrete acts of discrimination occurring
before October 26, 2016 for Savage and May 4, 2017 for
Blake;
4. The Defendants' motion is denied insofar as it seeks
dismissal of Plaintiffs' Title VII claim against
Springfield for discrete acts of discrimination occurring
on or after October 26, 2016 for Savage and on or after
May 4, 2017 for Blake, and insofar as it seeks dismissal
of Plaintiffs' hostile work environment claim;
5. The Defendants' motion is denied insofar as it seeks
dismissal of the class allegations;
6. The Defendants' motion to dismiss is granted insofar as it
seeks dismissal of Plaintiffs' Mass. Gen. Laws ch. 151B
claims to the extent that they are premised on actions
that occurred before October 9, 2015;
7. The Defendants' motion to dismiss is denied insofar as it
seeks dismissal of Plaintiffs' Mass. Gen. Laws ch. 151B
hostile work environment claim;
8. The Defendants' motion is granted insofar as it seeks
dismissal of Plaintiffs' Mass. Gen. Laws ch. 31, section
1(e) claim;
9. The Defendants' motion to dismiss is granted insofar as it
seeks dismissal of Plaintiffs' Title VII retaliation claim
against Conant and Calvi;
10. The Defendants' motion to dismiss is denied insofar as it
seeks dismissal of Plaintiffs' Mass. Gen. Laws ch. 151B
retaliation claim against Conant and Calvi;
11. The Defendants' motion to dismiss is granted insofar as it
seeks dismissal of Plaintiffs' negligent supervision claim
against Conant and Springfield;
12. The Defendant's motion to dismiss is granted insofar as it
seeks dismissal of the Plaintiffs' intentional infliction
of emotional distress claim against Conant and
Springfield;
13. The Defendants' motion to dismiss is denied insofar as it
seeks dismissal of Plaintiffs' equal protection claim
against Calvi; and
14. The Defendants' motion to dismiss is granted insofar as it
seeks dismissal of Plaintiffs' claim against Conant and
the City for breach of contract.
Plaintiffs Savage and Blake, both African American firefighters,
bring this putative class action on behalf of themselves and other
similarly situated minority firefighters against the Defendants for
alleged discrete acts of discrimination on the basis of race,
creation of a hostile work environment, and unlawful retaliation.
In their amended complaint, the Plaintiffs assert the following
causes of action: discrimination in violation of Title VII of the
Civil Rights Act of 1964; discrimination in violation of Mass. Gen.
Laws ch. 151B; violation of Mass. Gen. Laws; negligent supervision;
intentional infliction of emotional distress; constitutional equal
protection; and breach of contract.
Springfield is a city in western Massachusetts. Beside the
Connecticut River, Naismith Memorial Basketball Hall of Fame
commemorates the sport in a striking building. Collections at the
Springfield Museums include American paintings and sculpture,
scientific exhibits and Asian art. The Amazing World of Dr. Seuss
celebrates the beloved children’s author.
A copy of the Court's memorandum and order on the Defendants'
motion to dismiss dated March 8, 2020 is available from
PacerMonitor.com at https://bit.ly/3trM4AQ at no extra charge.[CC]
STAMPS.COM INC: Appeals Class Cert. Ruling in Karinski to 9th Cir.
------------------------------------------------------------------
Defendants Stamps.com, Inc., et al., filed an appeal from a court
ruling entered in the lawsuit entitled Matt Karinski v. Stamps.com,
Inc., et al., Case No. 2:19-cv-01828-MWF-SK, in the U.S. District
Court for the Central District of California, Los Angeles.
As previously reported in the Class Action Reporter, Mr. Karinski
commenced this action on March 13, 2019. On June 5, 2019, the Court
appointed Indiana Public Retirement System as Lead Plaintiff. On
August 5, 2019, the Lead Plaintiff filed a Consolidated Complaint,
bringing a securities fraud class action on behalf of all persons
who purchased the common stock of Stamps.com between May 3, 2017,
and May 8, 2019, and were harmed thereby. The Complaint alleges
Stamps exploited its contractual relationships with the USPS by
providing customers unauthorized-discounted USPS shipping under
what was known as the "reseller program." Although Stamps publicly
represented throughout the Class Period that its strong operating
performance was the result of the Company's healthy partnership
with the USPS, the Complaint alleges that a majority of Stamps'
reported revenue and earnings growth during the Class Period was
the product of undisclosed, improper, and unsustainable business
practices."
The Defendant seeks a review of the Court's Order dated November 9,
2020, granting Plaintiffs' class action certification.
The appellate case is captioned as Matt Karinski, et al. v.
Stamps.com, Inc., et al., Case No. 21-55223, in the United States
Court of Appeals for the Ninth Circuit, March 10, 2021.[BN]
The briefing schedule in the Appellate Case states that:
-- Appellants Jeff Carberry, Kyle Huebner, Kenneth McBride and
Stamps.com, Inc. Mediation Questionnaire was due on March 17,
2021;
-- Transcript shall be ordered by April 9, 2021;
-- Transcript is due on May 10, 2021;
-- Appellants Jeff Carberry, Kyle Huebner, Kenneth McBride and
Stamps.com, Inc. opening brief is due on June 18, 2021;
-- Appellees Indiana Public Retirement System and Matt Karinski
answering brief is due on July 19, 2021; and
-- Appellant's optional reply brief is due 21 days after service
of the answering brief.[BN]
Plaintiffs-Appellees MATT KARINSKI, individually and on behalf of
all others similarly situated; and INDIANA PUBLIC RETIREMENT
SYSTEM, Lead Plaintiff, are represented by:
Jennifer Pafiti, Esq.
POMERANTZ LLP
1100 Glendon Avenue, 15th Floor
Los Angeles, CA 90024
Telephone: (310) 405-7190
E-mail: jpafiti@pomlaw.com
- and -
Jason Forge, Esq.
ROBBINS GELLER RUDMAN & DOWD LLP
655 West Broadway
San Diego, CA 92101
Telephone: (619) 231-1058
E-mail: jforge@rgrdlaw.com
- and -
Doug Wilens, Esq.
ROBBINS GELLER RUDMAN & DOWD LLP
120 E. Palmetto Park Road
Boca Raton, FL 33432
Telephone: (561) 750-3000
E-mail: DWilens@rgrdlaw.com
Defendants-Appellants STAMPS.COM, INC., KENNETH MCBRIDE, KYLE
HUEBNER, and JEFF CARBERRY are represented by:
Christina L. Costley, Esq.
Richard Harold Zelichov, Esq.
KATTEN MUCHIN ROSENMAN LLP
2029 Century Park East, Suite 2600
Los Angeles, CA 90067
Telephone: (310) 788-4485
E-mail: christina.costley@kattenlaw.com
- and -
Howard Robert Rubin, Esq.
Eric Thomas Werlinger, Esq.
KATTEN MUCHIN ROSENMAN LLP
2900 K Street NW
Washington, DC 20007
Telephone: (202) 625-3534
E-mail: howard.rubin@katten.com
eric.werlinger@katten.com
STATE FARM: Class Settlement in Mitchell Suit Wins Final Approval
-----------------------------------------------------------------
The U.S. District Court for the Northern District of Mississippi
issued a Final Order and Judgment approving class settlement in the
lawsuit styled LORINE MITCHELL, Plaintiff v. STATE FARM FIRE AND
CASUALTY COMPANY, Defendant, Case No. 3:17-CV-00170-MPM-RP (N.D.
Miss.).
Plaintiff Mitchell, individually and on behalf of herself and the
Settlement Class as defined, and Defendant State Farm, have agreed
to settle the litigation pursuant to the terms and conditions
stated in the Stipulation of Settlement filed with the Court on
August 21, 2020.
On September 10, 2020, the Court granted preliminary approval of
the Agreement pursuant to Rule 23(e)(1)(B). Class Notice was issued
in accordance with the preliminary approval order, and on February
25, 2021, the Court held a final approval hearing on the motions.
Plaintiff Lorine Mitchell brought this class action on behalf of a
class of State Farm insureds with structural loss claims in
Mississippi alleging that State Farm improperly deducted
Non-Material Depreciation from actual cash value ("ACV") payments
when adjusting claims for structural losses under homeowner
policies. State Farm has denied, and still denies, any liability,
wrongdoing, and damages with respect to the matters alleged in the
Complaint.
After litigation between the Parties and arms'-length negotiations
between the Class Counsel and State Farm's counsel, the Parties
reached a settlement that provides substantial benefits to the
Settlement Class, in return for a release and dismissal of claims
against State Farm. The Settlement was reached after the Parties
had engaged in extensive and lengthy negotiations and two
mediations before United States Magistrate Judge Roy Percy.
District Judge Michael P. Mills rules that pursuant to Rule 23 of
the Federal Rules of Civil Procedure, final certification of the
Settlement Class is confirmed for the purpose of the Settlement, in
accordance with the Stipulation. Timely requests for exclusion were
submitted by five potential members of the Settlement Class and
those potential Class Members are excluded from the Settlement
Class. All other potential members of the Settlement Class are
adjudged to be members of the Settlement Class and are bound by
this Final Order and Judgment and by the Stipulation, including the
releases provided for in the Stipulation and this Final Order and
Judgment.
The Plaintiff's Motion for Final Approval of Class Settlement is
granted and all provisions and terms of the Stipulation are finally
approved in all respects. The Parties to the Stipulation are
directed to consummate the terms of the Stipulation in accordance
with its terms, as may be modified by subsequent orders of this
Court.
The Final Order and Judgment will be immediately entered as to all
claims in the Action between the Representative Plaintiff and Class
Members and State Farm, and Final Judgment is entered approving and
adopting all terms and conditions of the Settlement and the
Stipulation, fully and finally terminating all claims of the
Representative Plaintiff and the Settlement Class in this Action
against State Farm in accordance with the terms and conditions of
the Settlement, on the merits and with prejudice without leave to
amend.
Pursuant to Rule 23(a) and (g), Plaintiff Lorine Mitchell is
appointed as the Representative Plaintiff for this Settlement
Class, and the following counsel are appointed as the counsel for
the settlement Class: David McMullan, Jr. -- brandon@msb.law -- J.
Brandon McWherter -- dmcmullan@barrettlawgroup.com -- BARRETT LAW
GROUP, P.A., and T. Joseph Snodgrass -- jsnodgrass@larsonking.com
-- LARSON KING, LLP.
In order to protect the continuing jurisdiction of the Court and to
protect and effectuate the Final Order and Judgment, the Court
permanently and forever bars and enjoins the Representative
Plaintiff and all Class Members, and anyone acting or purporting to
act on their behalf, from instituting, maintaining, prosecuting,
suing, asserting, or cooperating in any action or proceeding,
whether new or existing, against any of the Released Persons for
any of the Released Claims.
Confidential Information of State Farm will be protected from
disclosure and handled in accordance with the terms of the
Stipulation, and the Class Counsel and any other attorneys for the
Plaintiff in the Lawsuit will destroy or return to State Farm's
Counsel all Confidential Information in their possession, custody,
or control as set forth in the Stipulation.
The Class Counsel's motion concerning attorneys' fees, litigation
costs and a service award is granted. Pursuant to Rule 23(h), the
Court awards Class Counsel $2.19 million in attorneys' fees,
litigation expenses, and costs. In addition, the Court awards
Representative Plaintiff a service award of $15,000.
Claim Settlement Payments to the Class Members, who timely file a
completed Claim Form will be made in the amounts, within the time
period, subject to the terms and in the manner described in the
Stipulation.
The Court appoints Bobby Dallas of Sessums PLLC as the Neutral
Evaluator to carry out the duties and responsibilities set forth in
the Stipulation. The Representative Plaintiff, the Class Counsel,
State Farm, and State Farm's Counsel will not be liable for any act
or omission of the Neutral Evaluator.
Without further order of the Court, the Parties may agree to
reasonably necessary extensions of time to implement any of the
provisions of the Stipulation.
The Action is dismissed in its entirety on the merits, with
prejudice and without leave to amend, without fees or costs to any
party except as otherwise provided.
Without in any way affecting the finality of the Final Judgment,
the Court will retain exclusive continuing jurisdiction over this
Action.
A full-text copy of the Court's Final Order and Judgment dated Feb.
25, 2021, is available at https://tinyurl.com/2z3e88w6 from
Leagle.com.
STERICYCLE INC: Daniel Seeks FLSA Conditional Class Certification
-----------------------------------------------------------------
In the class action lawsuit captioned as PHILLIP DANIEL, on behalf
of himself and all others similarly situated, v. STERICYCLE INC.;
and SHRED-IT USA LLC, Case No. 3:20-cv-00655-RJC-DCK (W.D.N.C.),
the Plaintiff asks the Court to enter an order:
1. granting conditional certification of this action and for
court-authorized notice pursuant to section 216(B) of the
Fair Labor Standards Act (FLSA);
2. approving the proposed FLSA notice of this action and the
consent form;
3. directing the production of names, last known mailing
addresses, last-known cell phone numbers, email addresses,
work locations, and dates of employment of all putative
plaintiffs within 15 days of the Order; and
4. assigning him to distribute the Notice and Opt-in Form
via first class mail, email, and text message to all
putative plaintiffs of the conditionally certified
collective, with a reminder mailing to be sent 45-days
after the initial mailing to all non-responding putative
plaintiff.
Stericycle is a compliance company that specializes in collecting
and disposing regulated substances, such as medical waste and
sharps, pharmaceuticals, hazardous waste, and providing services
for recalled and expired goods.
A copy of the Plaintiff's motion to certify class dated March 5,
2020 is available from PacerMonitor.com at https://bit.ly/3lwNyHp
at no extra charge.[CC]
The Plaintiff is represented by
Gilda A. Hernandez, Esq.
Charlotte Smith, Esq.
Robert W.T. Tucci, Esq.
THE LAW OFFICES OF GILDA A.
HERNANDEZ, PLLC
1020 Southhill Dr., Ste. 130
Cary, NC 27513
Telephone: (919) 741-8693
Facsimile: (919) 869-1853
E-mail: ghernandez@gildahernandezlaw.com
csmith@gildahernandezlaw.com
rtucci@gildahernandezlaw.com
The Defendant is represented by
Jerry H. Walters, Jr., Esq.
Richard W. Black, Esq.
Joshua B. Waxman, Esq.
Meredith L. Schramm-Strosser, Esq.
LITTLER MENDELSON, P.C.
Bank of America Corporate Center
100 North Tryon Street, Suite 4150
Charlotte, NC 28202
Telephone: (704) 972-7000
Facsimile: (704) 333-4005
E-mail: JWalters@littler.com
RBlack@littler.com
JWaxman@littler.com
MSchramm-Strosser@littler.com
TAYLOR FARMS: $5.3M Class Deal in Pena Wage-Hour Suit Has Final Nod
-------------------------------------------------------------------
In the case, Maria Del Carmen Pena, et al., Plaintiffs v. Taylor
Farms Pacific, Inc., et al., Defendants, Case No.
2:13-cv-01282-KJM-AC (E.D. Cal.), Chief District Judge Kimberly J.
Mueller of the U.S. District Court for the Eastern District of
California granted the Plaintiffs' motion for final approval of
their agreement to settle the wage and hour class action for $5.3
million.
The named Plaintiffs are former hourly employees of two food
production and processing plants in Tracy, California. They filed
the case in state court almost a decade ago, alleging the
Defendants did not (1) pay them for the time they spent putting on,
taking off, and cleaning protective equipment; did not (2) give
them meal and rest breaks guaranteed by California law; or (3) pay
them in the format and within the time limits required by
California law.
After the case was removed to the Court, the parties conducted
extensive discovery and litigated many pretrial motions, including
motions to dismiss, to strike, to compel and bar discovery, for
summary judgment, for class certification, and to stay. These
motions and the orders resolving them narrowed the Plaintiffs'
claims but resulted in a certified class that withstood an appeal
and petition for certiorari.
When the case returned to the Court, the parties participated in
two separate full-day mediation sessions with David Rotman, who has
often been described as a well-known and experienced mediator in
wage and hour litigation, including class actions. After several
months, the parties agreed to a settlement. The gross settlement
fund before various deductions would be $5.3 million.
After deductions, about $3.1 million would be automatically
distributed to the class members according to the number of shifts
they had worked at the Defendants' facilities: Proposed Attorneys'
Fees -- $1,855,000, Litigation Costs -- $210,000.68, Claims
Administration Costs -- $23,000, Enhancement Payments to the Named
Plaintiffs -- $37,500, Payments to the California Labor & Workforce
Development Agency ("LWDA") under the Private Attorneys General
Act -- $75,000, and Total Funds to be Distributed to the Class
Members -- $3,099,335.32.
As explained in a previous order, the proposed settlement class
included members who were not part of the previously certified
class, and the parties did not explain why it was appropriate to
expand the class as they proposed. Nor did the plaintiffs explain
well enough why the total gross settlement amount was reasonable.
As a result, their request for preliminary approval was denied
without prejudice to renewal.
The Plaintiffs renewed their motion. The renewed motion analyzed
the amount of the gross settlement fund against the maximum
potential award, so the Court was satisfied that the gross
settlement fund was reasonable. The counsel also filled in the
gaps surrounding the Plaintiffs' claims about non-compliant wage
statements.
But the renewed motion, like its predecessor, offered little
argument and no new evidence showing certification of the broader
class was proper. Despite this shortcoming, the Court -- cognizant
of the strong policy favoring settlement of complex class actions
-- undertook an independent analysis of the relevant law and
evidence. It concluded that the proposed class could be
preliminarily certified because no divisions threatened to pit some
class members against others. The parties' agreement to settle
also avoided many evidentiary complications that would likely have
made a trial of class claims impossible. The renewed motion was
granted.
Notice was sent to the proposed class. The notices were customized
for each recipient and showed how many pay periods would be used to
calculate each person's portion of the settlement proceeds. More
than 4,100 people responded. Twenty asked to be excluded, but none
objected. No one disputed the reported number of shifts they had
worked. The highest individual settlement payment will likely be
approximately $7,111, and the average payment will be about $744.
The Plaintiffs now move for final approval. At hearing, the
parties also presented a stipulation to alter certain funding and
disbursement deadlines, for which the parties have now prepared a
written stipulation and proposed order.
Judge Mueller holds that many factors clearly favor approval of the
proposed settlement. The record does not suggest collusion between
the attorneys at the expense of their clients or the class. The
parties' agreement also short-circuits further pretrial litigation
over the Plaintiffs' complex wage and hour claims, including some
claims the Court did not certify for trial. A faster resolution is
even more attractive now that the COVID-19 pandemic has delayed
hearings and trials in civil cases in the District.
The Judge also stands by the Court's previous finding that the
settlement agreement treats the class members equitably relative to
one another, and that the gross settlement amount is fair in light
of the obstacles the Plaintiff class would have needed to overcome
in bringing the case to a favorable jury verdict. The class
members' reactions to the proposed settlement provide further
confidence in its fairness.
Despite these positive signs of the settlement's fairness, the
Judge finds four aspects of the proposed settlement agreement that
require closer scrutiny: the proposed attorneys' fee award, the
proposed incentive awards to the named Plaintiffs, the proposed
reimbursements for litigation and administrative costs, and the
parties' compliance with California's Private Attorneys General Act
of 2004.
First, she finds that the requested 35% award is reasonable given
the unusual circumstances of the case. Although the counsel's
requested award is above the benchmark, it is a reasonable fee.
The case was lengthy, hard-fought and complex. The counsel
accepted the representation on a contingency basis when the outcome
was uncertain and litigation risky. The Defendants were
represented by capable counsel at large national and international
law firms. Against this backdrop, a $5.3 million award was a good
result for the class.
Second, the Judge finds that because $7,500 is within the range of
incentive awards paid to named Plaintiffs in similar cases, the
proposed incentive awards are reasonable. Third, the parties'
agreement to reimburse settlement administration costs of $23,000
is also reasonable for a case of this type. The Judge finds that
the costs are commonly reimbursed. Given the length and complexity
of this litigation, the proposed cost award is reasonable.
Finally, the Judge also finds that the proposed $100,000 allocation
to the PAGA claim and the resulting $75,000 payment to the LWDA is
reasonable.
For these reasons, Judge Mueller granted the motion for final
approval. She approved the stipulation for altering funding and
disbursement deadlines at ECF No. 334 and ordered accordingly. Her
Order resolves ECF No. 325.
A full-text copy of the Court's March 10, 2021 Order is available
at https://tinyurl.com/hwtxrwyb from Leagle.com.
UNIVERSAL HEALTH: Savings Plan Participants Gets Class Status
-------------------------------------------------------------
In the class action lawsuit captioned as MARY K. BOLEY, et al., v.
UNIVERSAL HEALTH SERVICES, INC., et al., Case No. 2:20-cv-02644-MAK
(E.D. Pa.), the Hon. Judge J. Kearney entered an order:
1. certifying a class of:
"All participants and beneficiaries in the Universal
Health Services, Inc. Retirement Savings Plan at any time
on or after June 5, 2014 to the present, including
a beneficiary of a deceased person who was a
participant in the Plan at any time during the Class
Period;"
2. appointing Mary K. Boley, Kandie Sutter, and Phyllis
Johnson as Class representatives;
3. certifying the Plaintiffs' counsel Capozzi Adler. P.C.
(led by Mark K. Gyandoh, Donald R. Reavey and Gabrielle P.
Kelerchian) and Shepherd Finkelman Miller & Shah, LLP (led
by James E. Miller, James C. Shah, Eric L. Young, and
Laurie Rubinow) as class counsel; and
4. directing the Plaintiff's counsel to submit a joint motion
to approve a form and protocol for Notice to the Class to
satisfy the terms and due process obligations under Rule
23 and, if necessary, including describing both parties'
position on any remaining irreconcilable objection to the
negotiated Notice.
Universal Health Services is an American Fortune 500 company that
provides hospital and healthcare services, based in King of
Prussia, Pennsylvania.
A copy of the Court's order dated March 8, 2020 is available from
PacerMonitor.com at https://bit.ly/3lq387E at no extra charge.[CC]
USGB LLC: Sanchez Files ADA Suit in S.D. New York
-------------------------------------------------
A class action lawsuit has been filed against USGB LLC. The case is
styled as Cristian Sanchez, on behalf of himself and all others
similarly situated v. USGB LLC, Case No. 1:21-cv-02294 (S.D.N.Y.,
March 16, 2021).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
United States Gold Bureau (USGB) -- https://www.usgoldbureau.com/
-- is a private distributor of Gold, Silver & Platinum coins from
the U.S. Mint and is not affiliated with the U.S. Government.[BN]
The Plaintiff is represented by:
Joseph H. Mizrahi, Esq.
COHEN & MIZRAHI LLP
300 Cadman Plaza West, 12th Floor
Brooklyn, NY 11201
Phone: (929) 575-4175
Fax: (929) 575-4195
Email: joseph@cml.legal
VICTORY ENTERTAINMENT: Logans' Bid for Default Judgment Denied
--------------------------------------------------------------
In the case, SAHARA LOGAN, Plaintiff v. VICTORY ENTERTAINMENT,
INC., et al., Defendants, Civil No. 18-17129 (RBK/KMW) (D.N.J.),
Judge Robert B. Kugler of the U.S. District Court for the District
of New Jersey denied the Plaintiff's Motion for Default Judgment as
to Victory.
The action arises out of an employment dispute. Plaintiff Logan
brings the action on behalf of herself and all others similarly
situated. The Plaintiff is a former exotic entertainer ("Dancer").
The Defendants include Victory Entertainment, Inc.; 2405 Pacific
Avenue, L.L.C.; Nicholas Panaccione; Richard D. Schibell; Leonard
Casiero; and Joseph Shamy. The Defendants collectively own and
operate a night club, Delilah's Den of Atlantic City. During July
2018, the Plaintiff worked as a Dancer at Delilah's Den.
The Plaintiff alleges that the Defendants improperly classified her
and the other Dancers as independent contractors. In doing so, she
contends that the Defendants deprived her of mandated minimum wage
for all hours worked, denied her overtime compensation for hours
worked over 40 hours per week, and forced her to share a percentage
of her tips. The Plaintiff asserts that these actions violated
both the Fair Labor Standards Act ("FLSA") and the New Jersey Wage
and Hour Laws ("NJWHL").
The Plaintiff brings the suit (1) as a class action seeking
monetary damages on behalf of a nationwide FLSA class and (2)
pursuant to Federal Rule of Civil Procedure 23, on behalf of
herself and a class of New Jersey employees based on the
Defendants' alleged violation of the NJWHL.
The Plaintiff initiated suit on Dec. 12, 2018. Defendant Victory
was served on Jan. 2, 2019 and was required to answer by Jan. 23,
2019. Victory did not respond. On Nov. 13, 2019, the Plaintiff
made a request for default against the Defendants Victory and 2405
Pacific Avenue, LLC. The clerk made an entry of default.
However, on Feb. 7, 2020, the Court entered a stipulation and order
dismissing the Complaint as to Defendant 2405 Pacific. The
Plaintiff then filed the present Motion for Default Judgment as to
Victory only on July 27, 2020. 2405 Pacific filed a Certification
in Opposition. In its Opposition, 2405 Pacific alleges that
Victory does not "do business as" Delilah's Den or Delilah's Den of
Atlantic City.
First, Judge Kugler must determine (1) whether the Court has
subject-matter jurisdiction over the Plaintiff's cause of action
and (2) whether the Court may exercise personal jurisdiction over
Victory. He finds that the Court has subject-matter jurisdiction
over the case. He also finds that the Court has personal
jurisdiction over Victory because Victory transacts business and
employs the Plaintiff within the state of New Jersey.
Second, the Judge must ensure that the entry of default under Rule
55(a) was appropriate. Rule 55(a) directs the Clerk of the Court
to enter a party's default when the party "against whom a judgment
for affirmative relief is sought has failed to plead or otherwise
defend, and that failure is shown by affidavit or otherwise." The
Plaintiff certified service of Victory on June 6, 2019. Victory
has made no attempt to answer or defend the action. Accordingly,
the Clerk appropriately issued the entry of default under Rule
55(a) on Nov. 14, 2019.
Third, the Judge must also confirm that the defaulting parties are
not infants, incompetent persons, or persons in military service
exempted from default judgment. Fed. R. Civ. Proc. 55(b)(2).
Section 3931(b)(1) requires the Plaintiff to file an affidavit
stating whether or not the Defendant is in military service and
showing necessary facts to support the affidavit before the Court
can enter default judgment for the Plaintiff. Neither of these
requirements apply to Defendant Victory because it is a
corporation. Therefore, the requirement is satisfied.
Fourth, the Judge must determine whether the Plaintiff's Complaint
states a cause of action against Victory Entertainment. The Court
should accept as true all well-pleaded factual allegations, while
disregarding mere legal conclusions.
The Plaintiff alleges that the Defendants violated the FLSA, 29
U.S.C. Section 201 et seq., and that the Plaintiff and the fellow
class members are entitled to the following: (1) unpaid minimum
wages from Victory Entertainment for hours worked for which Victory
Entertainment failed to pay the mandatory minimum wage; (2) unpaid
overtime wages for all hours worked in excess of forty hours a
week; (3) tips that Victory Entertainment withheld in violation of
29 U.S.C. Section 203(m)(2)(B); and (4) liquidated damages pursuant
to 29 U.S.C. Section 216(b). The Plaintiff also alleges that the
Defendants violated New Jersey state laws by failing to pay
appropriate minimum wage, denying overtime wage, and withholding or
deducting unlawful amounts from earned tips.
The Judge finds that the Plaintiff states a claim for failure to
pay minimum wage. The Plaintiff pleads that the Defendants do not
pay their "Dancers the applicable minimum wage" and "do not
compensate Dancers in an amount at least equal to the mandated
minimum wage for each hour worked. He also finds that the
Plaintiff sufficiently states a claim for relief under NJWHL. The
Plaintiff pleads sufficient facts to show that she worked in excess
of 40 hours per week and was not properly paid overtime and regular
wages as required by state law.
Regarding the class claims, the Plaintiff also seeks to assert her
claims (1) as a class action on behalf of a nationwide FLSA class
and (2) pursuant to Federal Rule of Civil Procedure 23, on behalf
of herself and a class of New Jersey employees based on the
Defendants' alleged violation of the NJWHL. The Judge finds that
the Plaintiffs have satisfied the requirements of Rule 23(a) and
Rule 23(b)(3). Therefore, he accepts for the motion's purpose the
Plaintiff's proposed class.
Although the Plaintiff alleges facts sufficient to sustain a class
and collective action, the Judge denies the Plaintiff's motion for
default judgment. The Plaintiff moved for default judgment on
behalf of herself and other members of the proposed FLSA collective
and NJWHL class action.
The Judge finds that the Plaintiff has not certified that she has
sent notice to the proposed class members. He is concerned that
entering a default judgment may bind persons whose rights are at
issue, without the protection of their first receiving proper
notice. Similarly, as to the collective action, the Plaintiff has
not stated whether notice of the collective action has been sent to
potential plaintiffs, so the Judge is equally concerned that others
who may wish to opt-in have not been given the proper opportunity.
Indeed, no conditional certification of the FLSA collective action
has been sought much less final certification.
Therefore, the Judge declines to grant the Plaintiff default
judgment as to her claims at this juncture. Because it was not
raised by the Plaintiff, the Judge does not know how the Plaintiff
wishes to proceed. The Plaintiff, for example, may decide to
forego the collective and class action to the extent permissible.
For the reasons she stated, Judge Kugler denied the Motion for
Default Judgment. An accompanying Order will be issued.
A full-text copy of the Court's March 10, 2021 Opinion is available
at https://tinyurl.com/n9xhb6r8 from Leagle.com.
WAL-MART STORES: Griego Seeks to Certify Class & Subclass
---------------------------------------------------------
In the class action lawsuit captioned as BRANDAN GRIEGO,
individuals and on behalf of all others similarly situated, v.
WAL-MART STORES, INC., A DELAWARE CORPORATION; WALMART, INC., A
DELAWARE CORPORATION; WAL-MART ASSOCIATES, INC., A DELAWARE
CORPORATION; SAM'S WEST, INC., AN ARKANSAS CORPORATION; AND DOES
1-100, Case No. 3:20-cv-00401-BAS-AHG (S.D. Calif.), the Plaintiff
will move the Court on April 5, 2021, to enter an order:
1. certifying the following Class and Sub-Class:
a. Any and all individuals who worked for Defendants in
the State of California whose employment ended at any
time from August 27, 2019, through the date of
judgment, and who received a Statement of Final Pay and
then received any additional wages (regular, overtime
and/or vacation) on Defendants on-cycle payroll
immediately subsequent to the issuance of the Statement
of Final Pay to the individual; and
b. Any and all individuals who worked for Defendants in
the State of California whose employment ended at any
time from August 27, 2019, through the date of
judgment, and who received a Statement of Final Pay and
then received any additional wages (regular, overtime
and/or vacation) more than 3 days after the issuance of
the Statement of Final Pay on Defendants on-cycle
payroll immediately subsequent to the issuance of the
Statement of Final Pay to the individual (the
"Subclass");
4. finding the Plaintiff to be an adequate representative and
certifying him as the class representative; and
5. finding the Plaintiff's counsel and their respective
firms, namely Christina A. Humphrey of Christina Humphrey
Law, P.C., and Peter M. Hart of Law Offices of Peter M.
Hart as adequate class counsel and certifying them as
class counsel.
This case challenges the same single undisputed class-wide policy
and practice at issue in a wage and hour class action already
certified by the Hon. Judge Lorenz in Julio Garcia v. Wal-Mart
Associates, Inc. and Wal-Mart Stores, Inc., Case No.
3:18-cv-00500-L-MDD.
The Plaintiff contends that Defendants undisputedly do not pay all
final wages owed to its separating employees, regardless of whether
employees were involuntary terminated or voluntarily resigned,
within the timing requirements set forth in Labor Code sections
201-203. According to the Plaintiff's expert, since August 27,
2019, there have been over 13,630 instances in which a terminated
employee has received wages in the next on-cycle payroll after
termination, including proposed class representative Brandan
Griego.
Walmart is an American multinational retail corporation that
operates a chain of hypermarkets, discount department stores, and
grocery stores from the United States, headquartered in
Bentonville, Arkansas.
A copy of the Plaintiff's motion to certify class dated March 5,
2020 is available from PacerMonitor.com at https://bit.ly/2QajS7j
at no extra charge.[CC]
The Plaintiff is represented by
Christina A. Humphrey, Esq.
CHRISTINA HUMPHREY LAW, P.C.
236 Portal Avenue, No. 185
San Francisco, CA 94127
Telephone: (805) 618-2924
Facsimile: (805) 618-2939
E-mail: christina@chumphreylaw.com
- and -
Peter M. Hart, Esq.
LAW OFFICES OF PETER M. HART
12121 Wilshire Blvd., Ste. 525
Los Angeles, CA 90025
Telephone: (310) 478-5789
Facsimile: (509) 561-6441
E-mail: hartpeter@msn.com
WALMART INC: Class Status Bid Filing Due Sept. 1
------------------------------------------------
In the class action lawsuit captioned as LETCHER DOZIER, JR.,
individually and on behalf of all others similarly situated, v.
WALMART INC., a Delaware corporation, formerly known as Wal-Mart
Stores, Inc.,Case No. 2:20-cv-05286-AB-PVC (C.D. Calif.), the Hon.
Judge Andre Birotte Jr. entered an order setting the following
deadlines for a motion for class certification:
Class certification motion: September 1, 2021
Opposition to class certification November 1, 2021
motion:
Reply in support of class December 16, 2021
certification motion:
Hearing: January 14, 2022
Walmart is an American multinational retail corporation that
operates a chain of hypermarkets, discount department stores, and
grocery stores from the United States, headquartered in
Bentonville, Arkansas.
A copy of the Court's order dated March 8, 2020 is available from
PacerMonitor.com at https://bit.ly/3r6ERF7 at no extra charge.[CC]
WASSERSTROM COMPANY: Sanchez Files ADA Suit in S.D. New York
------------------------------------------------------------
A class action lawsuit has been filed against The Wasserstrom
Company. The case is styled as Cristian Sanchez, on behalf of
himself and all others similarly situated v. The Wasserstrom
Company, Case No. 1:21-cv-02347 (S.D.N.Y., March 17, 2021).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
The Wasserstrom Company -- https://www.wasserstrom.com/ -- is a
restaurant supplier and distributor of food service supplies and
equipment.[BN]
The Plaintiff is represented by:
Joseph H. Mizrahi, Esq.
COHEN & MIZRAHI LLP
300 Cadman Plaza West, 12th Floor
Brooklyn, NY 11201
Phone: (929) 575-4175
Fax: (929) 575-4195
Email: joseph@cml.legal
*********
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