/raid1/www/Hosts/bankrupt/CAR_Public/210504.mbx
C L A S S A C T I O N R E P O R T E R
Tuesday, May 4, 2021, Vol. 23, No. 83
Headlines
3D SYSTEMS: Frank R. Cruz Reminds Investors of June 8 Deadline
3D SYSTEMS: Kessler Topaz Reminds Investors of June 8 Deadline
3D SYSTEMS: Levi & Korsinsky Reminds Investors of June 8 Deadline
3D SYSTEMS: Pomerantz Law Reminds Investors of June 8 Deadline
A1 ABSOLUTE: Davis Seeks Home Health Caregivers' Unpaid Wages
ACADIA PHARMA: Bragar Eagel Reminds Investors of June 18 Deadline
ACADIA PHARMA: Klein Law Firm Reminds of June 18 Deadline
ALLIED INTERSTATE: Daye Suit Removed from N.J. State Ct. to D.N.J.
AMDOCS LIMITED: Frank R. Cruz Reminds Investors of June 8 Deadline
APPLE INC: E.D. California Narrows Claims in Andino Consumer Suit
ARLO TECHNOLOGIES: Class Settlement in Wong Suit Has Final Approval
BELLUS HEALTH: Frank R. Cruz Announces Securities Class Action
CALIFORNIA PERS: Cal. App. Reverses Dismissal of Heinz Class Suit
CALIFORNIA STATE: Prelim. Injunction Partly Granted in Anders Suit
CANOO INC: Hagens Berman Reminds Investors of June 1 Deadline
CAPIO PARTNERS: Faces Douglas Suit Over FDCPA Non-Compliance
CAPITAL ONE: Third Circuit Affirms Judgments in Langer Class Suit
CAROUSEL CHECKS: Court Dismisses Paguada Suit Due to Settlement
CHAMPIGNON BRANDS: Bronstein Gewirtz Reminds of June 9 Deadline
CHAMPIGNON BRANDS: Frank R. Cruz Reminds of June 9 Deadline
CINCINNATI, OH: Court Denies Kohler's Bid for Prelim. Injunction
CITY NATIONAL: Noe Suit Temporarily Dismissed Pending Arbitration
CLEAN ENERGY: Pomerantz Law Probes Firm Over Securities Claims
COLLECTION BUREAU: Rivera Sues Over Unsolicited Prerecorded Calls
COMERICA BANK: Dickinson Suit Removed from State Ct. to C.D. Calif.
COUNTRY PREFERRED: N.D. Illinois Dismisses Munao Insurance Suit
CREDIT SUISSE: Kessler Topaz Reminds of June 15 Deadline
CYTODYN INC: Faces Goodwin Securities Suit Over Share Price Drop
DANBURY, CT: Nearly 40% of FCI Inmates Refused COVID-19 Vaccine
DIAMONDPEAK HOLDINGS: Rosen Law Firm Reminds of May 17 Deadline
EBANG INTERNATIONAL: The Klein Law Reminds of June 7 Deadline
EDISON INT'L: Ninth Cir. Affirms Dismissal of Wilson's ERISA Claims
ELNASR FOOD: Faces Garcia Suit Over Failure to Pay Proper Wages
EMERGENT BIO: Safirstein Metcalf Reminds of June 18 Deadline
EMERGENT BIOSOLUTIONS: Labaton Sucharow Reminds of June 8 Deadline
EPIC GAMES: K.W. Suit Stayed Pending Ruling on Zanca Settlement
EXELON CORP: Court Denies Bids to Dismiss Flynn Securities Suit
FACEBOOK INC: Faces Irish Class Action Suit Over Leaked Data
FALCO'S PIZZA: Frausto-Gutierrez et al. Sue Over Failure to Pay OT
FEDEX GROUND: Court Denies Leave to File Amended Roy FLSA Complaint
FIBROGEN INC: Faruqi & Faruqi Reminds of June 11 Deadline
FIBROGEN INC: Frank R. Cruz Reminds of June 11 Deadline
GENERAL MILLS: Faces Suit Over Products' "Phthalates" Component
GOGO INC: Shareholder Class Action Survives Motion to Dismiss
GOOGLE LLC: Battles GBP3-B UK Data Breach Class Action Lawsuit
GOOGLE LLC: Blocking Class Action Would Deny Justice, UK Court Says
GOOGLE LLC: Unite With Tech Rivals to Try to Block GBP750-M Claim
GOVERNMENT EMPLOYEES: Data Breach Leads to Class-Action Lawsuit
GOWIRELESS INC: Tsiros et al. Sue Over Store Managers' Unpaid OT
GRUBHUB INC: Settlement on Nonpartner Restaurants Implausible
HAIFA BAY, ISRAEL: Faces Suit for Bodily Injury Due to Pollution
HEALTH FIRST: Court Dismisses False Claims, Antitrust Lawsuits
HYUNDAI MOTOR: Faces Suit Over Foul Odor in Vehicle Trim Models
HYUNDAI PALISADE: Hellmuth & Johnson Files Class Action Complaint
INTRUSION INC: Bragar Eagel Reminds Investors of June 15 Deadline
IQ DATA: Cy Pres Recipients and Amounts in Esposito Suit Approved
JELD-WEN HOLDING: Lifshitz Law Announces Securities Class Action
JOHNS HOPKINS: Court Narrows Claims in Amended Botts Complaint
KAISER PERMANENTE: Settles Employee Racial Discrimination Suits
LIFEMD INC: Bragar Eagel Reminds Investors of June 15 Deadline
LOANDEPOT.COM LLC: Faces Aranda Suit Over Illegal Credit Reporting
LORDSTOWN MOTORS: Kaskela Law Files Securities Class Action Suit
MDL 3002: Beyer Seeks to Transfer 14 Data Breach Cases to N.D. Cal.
MERIT MEDICAL: Lifshitz Law Announces Securities Class Action
MOTIVATE LLC: Bid to Compel Arbitration in Paningbatan Suit OK'd
MOUNTAIRE CORP: Judge Approves $65M Class-Action Settlement
NESTLE WATERS: Website Inaccessible to Blind, Tenzer-Fuchs Says
NEW YORK: Faces Human Rights Law Violations Over Background Checks
NEW YORK: Faces Lawsuit Over Racial Discrimination, Wage Violations
OKLAHOMA: Emergency Hearing for Cannabis Class Action to Begin
OSCAR RAMIREZ: Denial of Anti-SLAPP Bids in Citizens Suit Reversed
PAGLIACCI PIZZA: To Pay $3.75M to Settle Delivery Drivers' Lawsuit
PEKIN, IL: Loses Bid to Dismiss Berardi ADA Suit; Class Certified
PELOTON INTERACTIVE: Bragar Eagel Reminds of June 28 Deadline
PELOTON INTERACTIVE: Rosen Law Reminds of June 28 Deadline
PINTEREST INC: Glancy Prongay Discloses Securities Class Action
PIONEER NATURAL: Cook Foundation Seeks to Recover Gas Royalties
PROCTER & GAMBLE: Parks Sues Over Toothpaste's Deceptive Ad
PROJECT RENEWAL: Class Settlement in Price Suit Has Prelim. Nod
RCI HOSPITALITY: Lifshitz Announces Securities Class Action
RESTIGOUCHE HOSPITAL: Judge to Decide if Negligence Suit Will Go On
ROMEO POWER: Bragar Eagel Reminds Investors of June 15 Deadline
ROMEO POWER: Howard G. Smith Reminds Investors of June 15 Deadline
ROMEO POWER: Kaskela Law Reminds Investors of June 15 Deadline
RUSSIA: Protesters File Detainees Class-Action Lawsuit
TAINAN, TAIWAN: Suit Rejected on Building Collapse in 2016 Quake
TUCSON UNIFIED: Bid for Unitary Status in Fisher Suit Partly OK'd
UNIVERSAL PROTECTION: Brown Sues Over Security Officers' Unpaid OT
VANDA PHARMA: Lifshitz Law Announces Securities Class Action
VERUS INTERNATIONAL: Wolf Haldenstein Reminds of June 22 Deadline
VOLKSWAGEN AG: Rosen Law Discloses Securities Class Action
WELLS FARGO: Parties Stipulate to Dismiss Moton Class Suit
WORLD FINANCIAL: Order on Discovery Letter Entered in Yeomans Suit
XL FLEET: Hagens Berman Reminds Investors of May 7 Deadline
XTO ENERGY: Misclassifies Inspectors, Gamboa Suit Alleges
YONKERS, NY: Appellate Court Affirms Dismissal of WMC Realty Suit
*********
3D SYSTEMS: Frank R. Cruz Reminds Investors of June 8 Deadline
--------------------------------------------------------------
The Law Offices of Frank R. Cruz reminds investors that a class
action lawsuit has been filed on behalf of shareholders of 3D
Systems Corporation. Investors have until the deadline listed below
to file a lead plaintiff motion.
Investors suffering losses on their investments are encouraged to
contact The Law Offices of Frank R. Cruz to discuss their legal
rights in the class action at 310-914-5007 or by email to
fcruz@frankcruzlaw.com.
3D Systems Corporation (NYSE: DDD)
Class Period: May 6, 2020 - March 1, 2021
Lead Plaintiff Deadline: June 8, 2021
The complaint filed alleges that throughout the Class Period,
Defendants made materially false and/or misleading statements, as
well as failed to disclose material adverse facts about the
Company's business, operations, and prospects. Specifically,
Defendants failed to disclose to investors that: (1) 3D Systems
lacked proper internal controls over financial reporting; and (2)
as a result, Defendants' statements about its business, operations,
and prospects were materially false and misleading and/or lacked a
reasonable basis at all relevant times.
To be a member of these class actions, you need not take any action
at this time; you may retain counsel of your choice or take no
action and remain an absent member of the class action. If you wish
to learn more about these class actions, or if you have any
questions concerning this announcement or your rights or interests
with respect to these matters, please contact Frank R. Cruz, of The
Law Offices of Frank R. Cruz, 1999 Avenue of the Stars, Suite 1100,
Los Angeles, California 90067 at 310-914-5007, by email to
info@frankcruzlaw.com, or visit our website at
www.frankcruzlaw.com. If you inquire by email please include your
mailing address, telephone number, and number of shares purchased.
This press release may be considered Attorney Advertising in some
jurisdictions under the applicable law and ethical rule.[GN]
3D SYSTEMS: Kessler Topaz Reminds Investors of June 8 Deadline
--------------------------------------------------------------
The law firm of Kessler Topaz Meltzer & Check, LLP reminds
investors that a securities fraud class action lawsuit has been
filed in the United States District Court for the Eastern District
of New York against 3D Systems Corp. (NYSE: DDD) ("3D Systems") on
behalf of those who purchased or acquired 3D Systems securities
between May 6, 2020 and March 1, 2021, inclusive (the "Class
Period").
Deadline Reminder: Investors who purchased or acquired 3D Systems
securities during the Class Period may, no later than June 8, 2021,
seek to be appointed as a lead plaintiff representative of the
class. For additional information or to learn how to participate in
this litigation please contact Kessler Topaz Meltzer & Check, LLP:
James Maro, Esq. (484) 270-1453 or Adrienne Bell, Esq. (484)
270-1435; toll free at (844) 887-9500; via e-mail at info@ktmc.com;
or click
https://www.ktmc.com/3d-systems-class-action-lawsuit?utm_source=PR&utm_medium=Link&utm_campaign=3d
3D Systems provides comprehensive 3D printing and digital
manufacturing solutions, including 3D printers for plastics and
metals, materials, software, on-demand manufacturing services, and
digital design tools.
The Class Period commences on May 6, 2020, when after the market
closed, 3D Systems filed a Form 10-Q quarterly report for the
quarterly period ended March 31, 2020. As part that filing, certain
of the defendants included certifications attesting to, among other
things, the accuracy of financial reporting, the disclosure of any
material changes to the company's internal control over financial
reporting and the disclosure of all fraud. Thereafter, 3D Systems
filed quarterly reports on August 5, 2020 and November 5, 2020,
attesting to the accuracy of the same information.
On March 1, 2021, 3D Systems issued a press release announcing a
delay of filing its 10-K Annual Report for the fiscal year ended
December 31, 2020. In pertinent part, the press release stated that
3D Systems will delay filing its Annual Report on a Form 10-K and
that the delay "is primarily related to the presentation of cash
flows associated with the divestiture process for its Cimatron and
GibbsCam software businesses." Further, 3D Systems stated, "the
company will report material weaknesses in internal controls in its
fiscal 2020 Annual Report on Form 10-K."
Following this news, 3D Systems' stock price fell $7.62 per share,
or more than 19.6%, from closing at $38.79 per share on March 1,
2021 to close at $31.17 per share on March 2, 2021.
The complaint alleges that, throughout the Class Period, the
defendants made false and/or misleading statements and/or failed to
disclose that: (1) 3D Systems lacked proper internal controls over
financial reporting; and (2) as a result, 3D Systems' public
statements were materially false and/or misleading at all relevant
times.
3D Systems investors may, no later than June 8, 2021, seek to be
appointed as a lead plaintiff representative of the class through
Kessler Topaz Meltzer & Check, LLP or other counsel, or may choose
to do nothing and remain an absent class member. A lead plaintiff
is a representative party who acts on behalf of all class members
in directing the litigation. In order to be appointed as a lead
plaintiff, the Court must determine that the class member's claim
is typical of the claims of other class members, and that the class
member will adequately represent the class. Your ability to share
in any recovery is not affected by the decision of whether or not
to serve as a lead plaintiff.
Kessler Topaz Meltzer & Check, LLP prosecutes class actions in
state and federal courts throughout the country involving
securities fraud, breaches of fiduciary duties and other violations
of state and federal law. Kessler Topaz Meltzer & Check, LLP is a
driving force behind corporate governance reform, and has recovered
billions of dollars on behalf of institutional and individual
investors from the United States and around the world. The firm
represents investors, consumers and whistleblowers (private
citizens who report fraudulent practices against the government and
share in the recovery of government dollars). The complaint in this
action was not filed by Kessler Topaz Meltzer & Check, LLP. For
more information about Kessler Topaz Meltzer & Check, LLP please
visit www.ktmc.com. [GN]
3D SYSTEMS: Levi & Korsinsky Reminds Investors of June 8 Deadline
-----------------------------------------------------------------
The following statement is being issued by Levi & Korsinsky, LLP:
To: All persons or entities who purchased or otherwise acquired
securities of 3D Systems Corporation ("3d Systems") (NYSE: DDD)
between May 6, 2020 and March 1, 2021. You are hereby notified that
a securities class action lawsuit has been commenced in the United
States District Court for the Eastern District of New York. To get
more information go to:
https://www.zlk.com/pslra-1/3d-systems-corp-loss-submission-form?prid=15281&wire=5
or contact Joseph E. Levi, Esq. either via email at
jlevi@levikorsinsky.com or by telephone at (212) 363-7500. There is
no cost or obligation to you.
The complaint alleges that throughout the class period Defendants
issued materially false and/or misleading statements and/or failed
to disclose that: (1) 3D Systems lacked proper internal controls
over financial reporting; and (2) as a result, 3D Systems' public
statements were materially false and/or misleading at all relevant
times.
If you suffered a loss in 3d Systems you have until June 8, 2021 to
request that the Court appoint you as lead plaintiff. Your ability
to share in any recovery doesn't require that you serve as a lead
plaintiff.
Levi & Korsinsky is a nationally recognized firm with offices in
New York, California, Connecticut, and Washington D.C. The firm's
attorneys have extensive expertise and experience representing
investors in securities litigation and have recovered hundreds of
millions of dollars for aggrieved shareholders. Attorney
advertising. Prior results do not guarantee similar outcomes. [GN]
3D SYSTEMS: Pomerantz Law Reminds Investors of June 8 Deadline
--------------------------------------------------------------
Pomerantz LLP announces that a class action lawsuit has been filed
against 3D Systems Corporation ("3D Systems" or the "Company")
(NYSE: DDD) and certain of its officers. The class action, filed in
the United States District Court for the Eastern District of New
York, and docketed under 21-cv-02383, is on behalf of a class
consisting of all persons and entities other than Defendants who
purchased or otherwise acquired the publicly traded securities of
3D Systems from May 7, 2020 to March 1, 2021 (the "Class Period").
Plaintiff seeks to recover compensable damages caused by
Defendants' violations of the federal securities laws under the
Securities Exchange Act of 1934 (the "Exchange Act").
If you are a shareholder who purchased 3D Systems securities during
the Class Period, you have until June 8, 2021 to ask the Court to
appoint you as Lead Plaintiff for the class. A copy of the
Complaint can be obtained at www.pomerantzlaw.com. To discuss this
action, contact Robert S. Willoughby at newaction@pomlaw.com or
888.476.6529 (or 888.4-POMLAW), toll-free, Ext. 7980. Those who
inquire by e-mail are encouraged to include their mailing address,
telephone number, and the number of shares purchased.
3D Systems provides comprehensive 3D printing and digital
manufacturing solutions, including 3D printers for plastics and
metals, materials, software, on-demand manufacturing services, and
digital design tools.
The complaint alleges that, throughout the Class Period, Defendants
made materially false and misleading statements regarding the
Company's business. Specifically, Defendants made false and/or
misleading statements and/or failed to disclose that: (i) 3D
Systems lacked proper internal controls over financial reporting;
and (ii) as a result, 3D Systems' public statements were materially
false and/or misleading at all relevant times.
On March 1, 2021, 3D Systems issued a press release announcing a
delay of filing the Company's 10-K annual report for the fiscal
year ended December 31, 2020, noting that "the delay in filing is
primarily related to the presentation of cash flows associated with
the divestiture process for its Cimatron and GibbsCam software
businesses," while revealing that the Company had "discovered
certain internal control deficiencies" and "will report material
weaknesses in internal controls in its fiscal 2020 Annual Report on
Form 10-K."
On March 2, 2021, 3D Systems filed a Form NT 10-K with the United
States Securities and Exchange Commission, stating that the
Company's 10-K filing would be delayed for the reasons listed in
its March 1, 2021 press release.
On this news, 3D Systems' stock price fell $7.62 per share, or more
than 19.6%, from closing at $38.79 per share on March 1, 2021 to
close at $31.17 per share on March 2, 2021, damaging investors.
The Pomerantz Firm, with offices in New York, Chicago, Los Angeles,
and Paris is acknowledged as one of the premier firms in the areas
of corporate, securities, and antitrust class litigation. Founded
by the late Abraham L. Pomerantz, known as the dean of the class
action bar, the Pomerantz Firm pioneered the field of securities
class actions. Today, more than 80 years later, the Pomerantz Firm
continues in the tradition he established, fighting for the rights
of the victims of securities fraud, breaches of fiduciary duty, and
corporate misconduct. The Firm has recovered numerous
multimillion-dollar damages awards on behalf of class members.
CONTACT:
Robert S. Willoughby
Pomerantz LLP
rswilloughby@pomlaw.com
888-476-6529 ext. 7980 [GN]
A1 ABSOLUTE: Davis Seeks Home Health Caregivers' Unpaid Wages
-------------------------------------------------------------
The case, LAVELLE DAVIS, on behalf of herself and all those
similarly situated, Plaintiff v. A1 ABSOLUTE BEST CARE, L.L.C. and
COLLETTE BRANCH, Defendants, Case No. 2:21-cv-00761-NJB-MBN (E.D.
La., April 14, 2021), arises from the Defendants' alleged willful
violation of the Fair Labor Standards Act.
The Plaintiff, who has worked for the Defendants as a home health
caregivers, contends that the Defendant did not pay her and other
similarly situated home health caregivers overtime compensation at
the federally mandated overtime rate for all hours they worked in
excess of 40 per week and/or minimum wage at the federally mandated
minimum rate for all hours they worked. That is because the
Defendants did not pay all their wages by shorting their paychecks
despite the fact that they regularly worked in excess of 40 hours
per week. In addition, the Defendants have failed to maintain
proper time records, the Plaintiff says.
The Plaintiff brings this complaint as a collective action on
behalf of herself and other similarly situated home health
caregivers praying that judgment be entered in their favor and
against the Defendants to recover all unpaid minimum wage and
overtime pay, as well as an equal amount in liquidated damages,
reasonable attorneys fees and costs, and other relief as the Court
may deems just and appropriate.
A1 Absolute Best Care, L.L.C. provides home health caregiving
services. Collette Branch is the owner and managing member of the
company. [BN]
The Plaintiff is represented by:
John O. Pieksen, Jr., Esq.
BAGNERIS, PIEKSEN & ASSOCIATES, LLC
935 Gravier St., Suite 2110
New Orleans, LA 70112
Tel: (504) 493-7990
Fax: (504) 493-7991
E-mail: pieksen@bpajustice.com
ACADIA PHARMA: Bragar Eagel Reminds Investors of June 18 Deadline
-----------------------------------------------------------------
Bragar Eagel & Squire, P.C., a nationally recognized shareholder
rights law firm, reminds investors that a class action has been
commenced on behalf of stockholders of Acadia Pharmaceuticals, Inc.
(NASDAQ: ACAD). Stockholders have until the deadline below to
petition the court to serve as lead plaintiff. Additional
information about the case can be found at the link provided.
Acadia Pharmaceuticals, Inc. (NASDAQ: ACAD)
Class Period: June 15, 2020 to April 4, 2021
Lead Plaintiff Deadline: June 18, 2021
Acadia is a biopharmaceutical company that focuses on the
development and commercialization of small molecule drugs that
address unmet medical needs in central nervous system disorders.
The Company is developing pimavanserin as a treatment for
dementia-related psychosis and as an adjunctive treatment for
schizophrenia, as well as an adjunctive treatment for major
depressive disorder.
On March 8, 2021, Acadia issued a press release providing a
regulatory update on the pimavanserin sNDA, disclosing "that the
Company received a notification from the [FDA] on March 3, 2021,
stating that, as part of its ongoing review of the Company's
[sNDA], the FDA has identified deficiencies that preclude
discussion of labeling and postmarketing requirements/commitments
at this time." Acadia advised that "[t]he notification does not
specify the deficiencies identified by the FDA and there has been
no clarification by the FDA at this time."
On this news, Acadia's stock price fell $20.76 per share, or
45.35%, to close at $25.02 per share on March 9, 2021.
Then, on April 5, 2021, Acadia issued a press release announcing
that the Company had received a Complete Response Letter ("CRL")
from the FDA indicating that the pimavanserin sNDA could not be
approved in its current form. Specifically, the press release
stated that, "the [FDA Division of Psychiatry], in the CRL, cited a
lack of statistical significance in some of the subgroups of
dementia, and insufficient numbers of patients with certain less
common dementia subtypes as lack of substantial evidence of
effectiveness to support approval."
On this news, Acadia's stock price fell $4.41 per share, or 17.23%,
to close at $21.18 per share on April 5, 2021.
The complaint, filed on April 19, 2021, alleges that throughout the
Class Period defendants made materially false and misleading
statements regarding the Company's business, operations, and
compliance policies. Specifically, defendants made false and/or
misleading statements and/or failed to disclose that: (i) the
materials submitted in support of the pimavanserin sNDA contained
statistical and design deficiencies; (ii) accordingly, the
pimavanserin sNDA lacked the evidentiary support that the Company
had led investors to believe it possessed; (iii) the FDA was
unlikely to approve the pimavanserin sNDA in its present form; and
(iv) as a result, the Company's public statements were materially
false and misleading at all relevant times.
For more information on the Acadia class action go to:
https://bespc.com/cases/ACAD
About Bragar Eagel & Squire
Bragar Eagel & Squire, P.C. is a nationally recognized law firm
with offices in New York, California, and South Carolina. The firm
represents individual and institutional investors in commercial,
securities, derivative, and other complex litigation in state and
federal courts across the country. For more information about the
firm, please visit www.bespc.com. Attorney advertising. Prior
results do not guarantee similar outcomes.
Contact Information:
Bragar Eagel & Squire, P.C.
Brandon Walker, Esq.
Melissa Fortunato, Esq.
Marion Passmore, Esq.
(212) 355-4648
investigations@bespc.com
www.bespc.com [GN]
ACADIA PHARMA: Klein Law Firm Reminds of June 18 Deadline
---------------------------------------------------------
The Klein Law Firm announces that a class action complaint has been
filed on behalf of shareholders of Acadia Pharmaceuticals Inc.
(NASDAQ: ACAD) alleging that the Company violated federal
securities laws.
Class Period: June 15, 2020 and April 4, 2021
Lead Plaintiff Deadline: June 18, 2021
Learn more about your recoverable losses in ACAD:
http://www.kleinstocklaw.com/pslra-1/acadia-pharmaceuticals-inc-loss-submission-form?id=15096&from=5
The filed complaint alleges that Acadia Pharmaceuticals Inc. made
materially false and/or misleading statements and/or failed to
disclose that: (i) the materials submitted in support of the
pimavanserin sNDA contained statistical and design deficiencies;
(ii) accordingly, the pimavanserin sNDA lacked the evidentiary
support that the Company had led investors to believe it possessed;
(iii) the FDA was unlikely to approve the pimavanserin sNDA in its
present form; and (iv) as a result, the Company's public statements
were materially false and misleading at all relevant times.
Shareholders have until June 18, 2021 to petition the court for
lead plaintiff status. Your ability to share in any recovery
doesn't require that you serve as a lead plaintiff.
For additional information about the ACAD lawsuit, please contact
J. Klein, Esq. by telephone at 212-616-4899 or click the link
above.
J. Klein, Esq. represents investors and participates in securities
litigations involving financial fraud throughout the nation.
Attorney advertising. Prior results do not guarantee similar
outcomes. [GN]
ALLIED INTERSTATE: Daye Suit Removed from N.J. State Ct. to D.N.J.
------------------------------------------------------------------
The class action lawsuit captioned as DAYE v. ALLIED INTERSTATE
LLC, et al., Case No. MER-L-41321 was removed from the Superior
Court of New Jersey, Mmercer County to U.S. District Court for the
District of New Jersey (Trenton) on March 31, 2021.
The District of New Jersey Court Clerk assigned Case No.
3:21-cv-07582-FLW-TJB to the proceeding.
The suit alleges violation of the Fair Debt Collection Practices
Act involving consumer credit. The case is assigned to the Hon.
Judge Freda L. Wolfson.
Allied Interstate LLC is a debt collector.[BN]
The Plaintiff is represented by:
Philip D. Stern, Esq.
KIM LAW FIRM, LLC
411 Hackensack Avenue, Suite 701
Hackensack, NJ 07601
Telephone: (201) 273-7117
Facsimile: (201) 273-7117
E-mail: pstern@kimlf.com
- and -
Yongmoon Kim, Esq.
Kim Law Firm LLC
411 Hackensack Ave Ste 701
Hackensack, NJ 07601
Telephone: (201) 273-7117
Facsimile: (201) 273-7117
E-mail: ykim@kimlf.com
The Defendant is represented by:
Sean Michael O'Brien, Esq.
LIPPES MATHIAS WEXLER FRIEDMAN LLP
50 Fountain Plaza, Suite 1700
Buffalo, NY 14202
Telephone: (716) 853-5100
E-mail: sobrien@lippes.com
AMDOCS LIMITED: Frank R. Cruz Reminds Investors of June 8 Deadline
------------------------------------------------------------------
The Law Offices of Frank R. Cruz reminds investors that a class
action lawsuit has been filed on behalf of shareholders of Amdocs
Limited. Investors have until the deadline listed below to file a
lead plaintiff motion.
Investors suffering losses on their investments are encouraged to
contact The Law Offices of Frank R. Cruz to discuss their legal
rights in the class action at 310-914-5007 or by email to
fcruz@frankcruzlaw.com.
Amdocs Limited (NASDAQ: DOX)
Class Period: December 13, 2016 - March 30, 2021
Lead Plaintiff Deadline: June 8, 2021
The complaint filed in this class action alleges that throughout
the Class Period, Defendants made materially false and/or
misleading statements, as well as failed to disclose material
adverse facts about the Company's business, operations, and
prospects. Specifically, Defendants failed to disclose to investors
that: (1) Amdocs overstated its profits, cash, and liquidity, while
understating its debt; (2) Amdocs concealed its large borrowing;
(3) while Amdocs' reported results showed that its North American
business was stable, that business was actually deteriorating
annually, in part because the Company was losing AT&T as a
customer; and (4) as a result, Defendants' positive statements
about the Company's business, operations, and prospects were
materially misleading and/or lacked a reasonable basis at all
relevant times.
To be a member of these class actions, you need not take any action
at this time; you may retain counsel of your choice or take no
action and remain an absent member of the class action. If you wish
to learn more about these class actions, or if you have any
questions concerning this announcement or your rights or interests
with respect to these matters, please contact Frank R. Cruz, of The
Law Offices of Frank R. Cruz, 1999 Avenue of the Stars, Suite 1100,
Los Angeles, California 90067 at 310-914-5007, by email to
info@frankcruzlaw.com, or visit our website at
www.frankcruzlaw.com. If you inquire by email please include your
mailing address, telephone number, and number of shares purchased.
This press release may be considered Attorney Advertising in some
jurisdictions under the applicable law and ethical rules. [GN]
APPLE INC: E.D. California Narrows Claims in Andino Consumer Suit
-----------------------------------------------------------------
The U.S. District Court for the Eastern District of California
issued an order granting in part and denying in part the
Defendant's motion to dismiss the lawsuit styled DAVID ANDINO,
individually and on behalf of all others similarly situated,
Plaintiff v. APPLE, INC., a California Company, Defendant, Case No.
2:20-cv-01628-JAM-AC (E.D. Cal.).
Apple is one of the world's largest computer and phone
manufacturers and retailers. Apple's iTunes application allows
consumers to "Rent" or "Buy" movies, television shows, music and
other content. If the consumer desires to "Rent" a movie, Apple
advertises that for a fee of around $5.99, the consumer will have
access to the movie for 30 days and then for 48 hours after the
consumer first starts to watch it. For a higher fee of around
$19.99, Apple offers consumers the option to "Buy" the content.
When a consumer opts to "Buy" the content, it then appears in their
"Purchased" folder.
Plaintiff Andino argues this labeling is deceptive as the use of a
"Buy" button and representation that content has been "Purchased"
leads consumers to believe their access cannot be revoked. The
Plaintiff alleges this is untrue as Apple reserves the right to
terminate the consumers' access and use of content at any time, and
in fact, has done so on numerous occasions. He claims he would not
have purchased the content or would not have paid as much, if he
had known that his access and use could be terminated at any time.
Accordingly, the Plaintiff filed a class action complaint on behalf
of himself and those similarly situated, for violations of (1)
California's Consumers Legal Remedies Act ("CLRA"); (2)
California's False Advertising Law ("FAL"); and (3) California's
Unfair Competition Law ("UCL"). After the complaint was amended to
add a fourth claim for Unjust Enrichment, ("FAC"), Apple brought
this Motion to Dismiss. The Plaintiff opposed the Motion. Apple
replied.
Apple argues that the Plaintiff has not alleged a valid future
threatened injury under Davidson v. Kimberly-Clark Corporation as
he neither alleges "he stopped buying Digital Content, nor does he
allege any changes to the iTunes Store that 'reasonably' cause him
to 'assume' that the Digital Content has 'improved.'"
But the Court does not read Davidson so narrowly, notes District
Judge John A. Mendez. Rather, it seems clear from Davidson that a
plaintiff's allegation that they will not be able to rely on a
product's advertising or labeling is sufficient to demonstrate a
future threatened injury, conferring standing to seek injunctive
relief. Here, the Plaintiff has alleged just that. He claims he
will not be able to rely on Apple's purchase option to know whether
the content will be available indefinitely or not. Judge Mendez
holds that this is a threatened injury that is certainly impending,
establishing Article III standing to assert a claim for injunctive
relief.
Because the Plaintiff has alleged an economic injury and a
threatened future injury, the Court finds the Plaintiff has
demonstrated standing sufficient to overcome this motion to
dismiss. Accordingly, Apple's 12(b)(1) Motion to Dismiss for lack
of standing and 12(b)(6) Motion to Dismiss for lack of statutory
standing are denied.
Judge Mendez also finds that the Plaintiff has identified specific
promotional materials. Specifically, he alleges that consumers are
given the option to "Buy" digital content in a variety of ways via
a smart phone, computer or tablet, through the iTunes app or on
Apple TV. The Plaintiff then includes a representative sample of
this option on the iTunes Store, including a picture of the options
for "Sonic The Hedgehog"; "Westworld, Season 3"; and "Bridges Live:
Madison Square Garden." The Plaintiff has also explained how such
materials are false or misleading as he notes that reasonable
consumers expect "buying" the content means access cannot be
revoked.
Thus, the only remaining question is whether the Plaintiff has
sufficiently pled the "when." While the Plaintiff does not specify
exactly when he or the other class members were exposed to these
representations, the class consists of those who purchased content
from August 13, 2016, through class certification and trial. The
Court finds this allegation is sufficient, citing In Re ConAgra
Foods Inc., 908 F.Supp.2d 1090, 1100 (C.D. Cal. 2012). Hence, the
Plaintiff has pled his claims with enough specificity to satisfy
Rule 9(b) of the Federal Rules of Civil Procedure.
Apple also contends, among other things, that under Sonner v.
Premier Nutrition Corp, 971 F.3d 834 (9th Cir. 2020), the
Plaintiff's claims for equitable restitution under the CLRA, FAL,
UCL, and unjust enrichment must be dismissed as he has failed to
establish the requested CLRA damages are inadequate. The Plaintiff
appears to concede this point and in fact explicitly withdraws his
unjust enrichment claim based on this precedent, Judge Mendez
notes.
In Sonner, the plaintiff brought suit under California's UCL and
CLRA. Shortly before trial, the plaintiff amended her complaint to
seek only restitution and equitable relief. The Ninth Circuit held
that a plaintiff "must establish that she lacks an adequate remedy
at law before securing equitable restitution for past harm under
the UCL and CLRA." Because the plaintiff had failed to establish
she lacked an adequate remedy at law, the Court found dismissal of
the equitable restitution claims was warranted.
Judge Mendez finds that here, the Plaintiff has not even attempted
to explain why or how the requested CLRA damages are an inadequate
remedy justifying restitution damages. Accordingly, the Court
grants the Defendant's motion to dismiss the Plaintiff's claims for
equitable restitution under the UCL, FAL, and CLRA. The Court also
grants the Defendant's motion to dismiss the Plaintiff's unjust
enrichment claim.
The Court, however, agrees with the Plaintiff that Sonner does not
warrant dismissal of his request for injunctive relief. Money
damages are an inadequate remedy for future harm, as they will not
prevent the Defendant from continuing the allegedly deceptive
practice.
For the reasons set forth, the Court grants in part and denies in
part the Defendant's Motion to Dismiss. The Defendant's Motion to
Dismiss the Plaintiff's unjust enrichment claim is granted with
prejudice. The Defendant's Motion to Dismiss the Plaintiff's
equitable claims for restitution under the UCL, FAL, and CLRA is
also granted with prejudice. The remainder of the Defendant's
Motion to Dismiss is denied. The Defendant's Answer to the FAC is
due 20 days from the date of the Order.
A full-text copy of the Court's Order dated April 19, 2021, is
available at https://tinyurl.com/4z3xk64x from Leagle.com.
ARLO TECHNOLOGIES: Class Settlement in Wong Suit Has Final Approval
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In the lawsuit styled SPENCER WONG, Individually and on Behalf of
All Others Similarly Situated, Plaintiff v. ARLO TECHNOLOGIES,
INC.; MATTHEW McRAE; CHRISTINE M. GORJANC; PATRICK C.S. LO; ANDREW
W. KIM; NETGEAR, INC.; MERRILL LYNCH, PIERCE, FENNER & SMITH INC.;
DEUTSCHE BANK SECURITIES INC.; GUGGENHEIM SECURITIES LLC; RAYMOND
JAMES & ASSOCIATES, INC.; COWEN AND COMPANY, LLC; and IMPERIAL
CAPITAL, LLC, Defendants, Case No. 5:19-cv-00372-BLF (N.D. Cal.),
the U.S. District Court for the Northern District of California
issued an amended order granting the Plaintiff's motion for final
approval of class action settlement and for an award of attorneys'
fees and payment of expenses.
On March 11, 2021, the Court heard Plaintiff Matis Nayman's (1)
Motion for Final Approval of Class Action Settlement and (2) Motion
for an Award of Attorneys' Fees and Payment of Expenses.
The case is a putative class action for securities fraud brought by
Lead Plaintiff Matis Nayman against Defendants Christine M.
Gorjanc, Andrew W. Kim, Patrick C.S. Lo, and Matthew McRae
("Individual Defendants"), Merrill Lynch, Pierce, Fenner & Smith,
Inc., Deutsche Bank Securities, Inc., Guggenheim Securities, LLC,
Raymond James & Associates, Inc., Cowen and Company, LLC, and
Imperial Capital, LLC ("Underwriter Defendants"), NETGEAR, Inc.,
and Arlo Technologies Inc.
Defendant Arlo Technologies Inc. is a consumer electronics company
that specializes in "smart home" security devices, such as cameras,
doorbells, and lights. In August 2018, Arlo conducted an initial
public offering ("IPO") of its common stock. Arlo sold more than 11
million shares of common stock for $16 per share in its IPO. The
IPO was underwritten by six financial institutions--the Underwriter
Defendants. The Individual Defendants were officers and directors
of Arlo during the IPO.
In his Second Amended Complaint ("SAC"), the Lead Plaintiff alleges
that two of the documents prepared prior to the IPO, the
registration statement and its prospectus"), were prepared
negligently. For example, the Registration Statement emphasized
that the key elements of Arlo's growth strategy are to continue to
innovate and grow its installed base, and that Arlo expects to
increase its investment in research and development as it continues
to introduce new and innovative products and services to enhance
the Arlo platform. The SAC alleges that these statements were
materially false or misleading because the Registration Statement
failed to disclose or misrepresented that Arlo was having problems
innovating new products, and that new Arlo products would not be
ready for sale during the upcoming holiday season.
The SAC also alleges that the Registration Statement failed to
comply with Item 303 of SEC Regulation S-K, 17 C.F.R. Section
229.303(a)(3)(iii), because the Defendants did not disclose known
trends, events, or uncertainties that were having, and were
reasonably likely to have, an impact on Arlo's continuing
operations. Further, the SAC alleges that various press statements
after the IPO were "materially false and misleading."
Based on these allegations, the SAC contains four causes of action:
(1) violation of Section 11 of the Securities Act, 15 U.S.C.
Section 77k ("Securities Act"); (2) violation of Section 15 of the
Securities Act, (3) violation of Section 10(b) of the Exchange Act,
15 U.S.C. Section 78j(b) ("Exchange Act"), and Rule 10b-5
promulgated thereunder by the SEC; and (4) violation of Section
20(a) of the Exchange Act.
The initial complaint was filed on January 22, 2019. On May 6,
2019, the Court appointed Matis Nayman as Lead Plaintiff and the
firm of Keller Lenkner LLC as lead counsel, with the firm of Browne
George Ross LLC to serve as liaison counsel. The Lead Plaintiff
filed his First Amended Complaint on June 7, 2019. The Defendants
filed a motion to dismiss the Lead Plaintiff's FAC on August 6,
2019.
The parties began arms' length and protracted negotiations shortly
after filing the FAC and held a mediation before the Honorable Jay
C. Gandhi on November 18, 2019. On December 19, 2019, the Court
granted the Defendants' motion to dismiss with leave to amend on
the basis that the Lead Plaintiff failed to sufficiently allege
that the Defendants made intentionally false statements. On
February 14, 2020, the Lead Plaintiff filed his SAC in an attempt
to cure these deficiencies. Discussions between the parties
continued until June 2020, and on June 11, 2020, the parties signed
the Stipulation and Agreement of Settlement.
On September 24, 2020, the Court approved the Lead Plaintiff's
unopposed motion for preliminary approval. The Court also concludes
that the requirements of Rule 23 are satisfied and that
certification of the class for settlement purposes is appropriate.
The Court preliminary approved the parties' notice procedures.
In the motion for final approval, the Lead Plaintiff states that
they followed the approved notice plan. After determining the best
way to reach the greatest number of potential members, the Claims
Administrator mailed a total of 24,719 notice packets to potential
class members and nominees.
The Class Counsel represented at the hearing that this notice
process resulted in approximately 28% of the potential class
submitting claims. District Judge Beth Labson Freeman states that
this response rate is significant.
In light of these actions and the Court's prior order granting
preliminary approval, the Court finds that the parties have
provided adequate notice to the class members.
Judge Freeman notes that the $1,250,000 cash settlement is only a
fraction of the Lead Plaintiff's estimation of potential
recoverable damages for the Class at $53,200,000. Thus, the
settlement represents 2.35% of the total damages that the Lead
Plaintiff estimated could have been recovered if his case was
successful on all issues of liability and damages in the
Litigation. Other courts have found similar recoveries to be fair
and reasonable. Accordingly, Judge Freeman holds, the amount of the
settlement also weighs in favor of approval.
The absence of a large number of objections to a proposed class
action settlement raises a strong presumption that the terms of a
proposed class settlement action are favorable to the class
members, Judge Freeman holds, citing Omnivision, 559 F. Supp. 2d at
1043. The Lead Counsel and the Court received one objection from
Stephen Lawrence LoCicero, a shareholder of Arlo stocks. However,
the Court notes that the objection both criticized the small amount
of money class members received and said the case is meritless.
Mr. LoCicero cannot have it both ways, Judge Freeman holds. If the
class is truly meritless, then the Class should get nothing, making
a $1,250,000 cash settlement quite a win under that theory. Mr.
LoCicero further criticized the amount of attorneys' fees. However,
the fees are reasonable under Ninth Circuit precedent using either
the lodestar method or the percentage-of-recovery method. Likewise,
there were only three requests for exclusion from the named
plaintiffs in Avera v. Arlo Technologies, Inc., et al., No.
18-CV-339231, a case pending in state court. This positive response
from the class confirms that the settlement is fair and reasonable,
Judge Freeman points out.
Balancing the relevant factors, the Court finds the settlement fair
and reasonable under Rule 23(e) and Hanlon v. Chrysler Corp., 150
F.3d 1011, 1020 (9th Cir. 1998).
Conclusion
For these reasons, and after considering the record as a whole, the
Court finds that notice of the proposed settlement was adequate,
the settlement was not the result of collusion, and the settlement
is fair, adequate, and reasonable.
The Lead Plaintiff's Motion for Final Approval of Class Action
Settlement and Plan of Allocation is granted.
The Lead Plaintiff's motion for attorneys' fees and expenses is
granted. The Lead Plaintiff is awarded expenses in the amount of
$21,345 and attorneys' fees in the amount of $312,500. The Court
also concludes that the requested $5,000 incentive award is
appropriate in this case.
The Court also holds that it is appropriate to award Settlement
Administrator costs. In its preliminary approval order, the Court
approved the appointment of Angeion Group LLC as the Settlement
Administrator and approved its costs in an amount not to exceed
$250,000. Angeion has submitted a declaration that as of Jan. 31,
2021, Angeion has incurred $39,171 in administrative fees and
expenses, and that Angeion estimates they will incur approximately
$65,000 in additional costs before the completion of the
administration process. The Court finds the approximation of the
additional expenses reasonable and expects that the total costs
will not exceed $104,171. Accordingly, the Court approves the award
of administrator costs in this amount.
Without affecting the finality of the Order and accompanying
Judgment in any way, the Court retains jurisdiction over (1)
implementation and enforcement of the Settlement Agreement until
each and every act agreed to be performed by the parties pursuant
to the Settlement Agreement has been performed; (2) any other
actions necessary to conclude the Settlement and to administer,
effectuate, interpret, and monitor compliance with the provisions
of the Settlement Agreement; and (3) all parties to the action and
Settlement class members for the purpose of implementing and
enforcing the Settlement Agreement. Within 21 days after the
distribution of the settlement funds and payment of attorneys'
fees, the parties will file a Post-Distribution Accounting in
accordance with theDistrict's Procedural Guidance for Class Action
Settlements. The parties must seek approval from the Court for any
Cy Pres distributions.
A full-text copy of the Court's Amended Order dated April 19, 2021,
is available at https://tinyurl.com/ypfj4j6h from Leagle.com.
BELLUS HEALTH: Frank R. Cruz Announces Securities Class Action
--------------------------------------------------------------
The Law Offices of Frank R. Cruz announces that a class action
lawsuit has been filed on behalf of persons and entities that
purchased or otherwise acquired BELLUS Health Inc. securities
between September 5, 2019 and July 5, 2020, inclusive (the "Class
Period"). BELLUS investors have until May 17, 2021 to file a lead
plaintiff motion.
BELLUS is a clinical-stage biopharmaceutical company whose lead
product is BLU-5937, which is being developed for the treatment of
chronic cough and other afferent hypersensitization-related
disorders.
On July 6, 2020, before the market opened, BELLUS announced topline
results from its Phase 2 RELIEF trial of BLU-5937 in patients with
refractory chronic cough. According to the Company, the trial "did
not achieve statistical significance for the primary endpoint of
reduction in placebo-adjusted cough frequency at any dose tested."
On this news, the Company's stock price fell $9.05, or 75%, over
two consecutive trading sessions to close at $2.97 on July 8, 2020,
thereby injuring investors.
The complaint filed in this class action alleges that throughout
the Class Period, Defendants made materially false and/or
misleading statements, as well as failed to disclose material
adverse facts about the Company's business, operations, and
prospects. Specifically, the complaint alleges that Defendants
knew, but failed to disclose, that while BLU-5937's "high
selectivity" contributed to the drug causing little to no taste
alteration in chronic cough patients, that high selectivity also
contributed to the drug potentially being less efficacious and thus
likely not be able to meet the primary endpoint of the Company's
Phase 2 trial.
If you purchased BELLUS securities during the Class Period, you may
move the Court no later than May 17, 2021 to ask the Court to
appoint you as lead plaintiff. To be a member of the Class you need
not take any action at this time; you may retain counsel of your
choice or take no action and remain an absent member of the Class.
If you purchased BELLUS securities, have information or would like
to learn more about these claims, or have any questions concerning
this announcement or your rights or interests with respect to these
matters, please contact Frank R. Cruz, of The Law Offices of Frank
R. Cruz, 1999 Avenue of the Stars, Suite 1100, Los Angeles,
California 90067 at 310-914-5007, by email to
info@frankcruzlaw.com, or visit our website at
www.frankcruzlaw.com. If you inquire by email please include your
mailing address, telephone number, and number of shares purchased.
[GN]
CALIFORNIA PERS: Cal. App. Reverses Dismissal of Heinz Class Suit
-----------------------------------------------------------------
In the lawsuit captioned BRADLEY HEINZ, et al., Plaintiffs and
Appellants v. CALIFORNIA PUBLIC EMPLOYEES' RETIREMENT SYSTEM, et
al., Defendants and Respondents, Case No. B300089 (Cal. App.), the
Court of Appeals of California, Second District, Division Seven,
reverses the judgment dismissing the action.
Bradley Heinz, a former state employee, on behalf of himself and a
putative class of individuals enrolled in preferred provider
organization (PPO) health insurance offered or administered by the
California Public Employees' Retirement System and its Board of
Administration (collectively CalPERS) and BlueCross of California
dba Anthem Blue Cross, sued CalPERS and Anthem alleging they had
falsely represented the methodology for calculating reimbursements
for costs incurred when seeing a nonpreferred (out-of-network)
healthcare provider for nonemergency services and failed to
properly reimburse their members for those costs.
As part of his lawsuit Heinz also petitioned for a writ of
administrative mandamus under Code of Civil Procedure Section
1094.5 to overturn CalPERS's rejection of his requests for
additional reimbursement for out-of-network services provided to
him in 2008 and 2009.
The trial court denied the writ petition and, thereafter, sustained
CalPERS and Anthem's demurrer to Heinz's first amended complaint
without leave to amend, entering judgment on their behalf. The
court ruled the adverse administrative decision and order denying
Heinz's writ petition precluded his contract and tort causes of
action and, to the extent any cause of action alleged claims
separate from those presented in the administrative proceeding,
they were time-barred.
Plaintiff Heinz's Lawsuit
Mr. Heinz was enrolled in the PERSCare PPO from 2006 through 2008
and the PERS Choice PPO from 2009 through 2014. He received
treatment from Dr. Joe A. Walker, a psychiatrist, for nonemergency
healthcare services on a regular basis between 2006 and 2015.
Before May 2008 Dr. Walker was a member of a medical group and
under contract with Anthem as a preferred provider. As of April
2008 Dr. Walker billed $420 for a 50-minute visit. Anthem had
approved a contract payment rate for Dr. Walker of $299.57 per
visit (the Allowable Amount). Heinz made a relatively small ($20)
copayment to Dr. Walker, and Anthem paid Dr. Walker the balance of
the contract rate.
In May 2008 Dr. Walker terminated his affiliation with the medical
group with which he had been practicing and ceased to contract with
Anthem as a preferred provider. Dr. Walker continued to state his
hourly rate was $420, but billed Heinz $250 per visit, which he
subsequently increased to $275 per visit. Anthem reimbursed Heinz
for seeing Dr. Walker as an out-of-network provider at the rate of
60 percent of the Allowable Amount, which it reduced from $299.57
per visit to $113.31 per visit for the period from May 2008 through
2009. Anthem thus paid approximately $68 per visit; Heinz was
responsible for the balance of $182 per visit.
Anthem issued Heinz his first explanation of benefits form for
treatment by Dr. Walker as an out-of-network provider on September
24, 2008, covering visits in May 2008. Dissatisfied with the
reduced reimbursement he received, Heinz on September 25, 2008
submitted a member grievance form to Anthem in accordance with its
prescribed process for reviewing claims. Heinz contended, under the
EOC, the Allowable Amount for Dr. Walker's treatment should be the
customary and reasonable amount for the services provided. Anthem
denied Heinz's claims for additional reimbursement, which had been
expanded through additional grievance filings to include billings
and reimbursements through 2009.
After exhausting Anthem's internal grievance and appeals process,
on June 15, 2009, Heinz appealed the reimbursement issue to
CalPERS.
The administrative law judge's February 3, 2017 proposed decision
rejected Heinz's claims for greater reimbursement, finding Anthem
had complied with the terms of the EOC in determining the Allowable
Amount for Dr. Walker's services.
On April 21, 2017, following CalPERS's adoption of the
administrative law judge's proposed decision, Heinz filed a
135-page claim under the Government Claims Act on behalf of himself
and a class of CalPERS members who had purchased PPO insurance
between 2008 and 2014, which is, in substance, a precursor to the
complaint he filed in superior court less than two months later.
The Government Claims Program rejected the claim on May 18, 2017,
stating it had no jurisdiction to consider the claim because it had
been presented more than one year after the date the alleged
damages accrued.
Mr. Heinz filed a putative class action complaint on June 13, 2017,
alleging causes of action for breach of contract, breach of
fiduciary duties, misrepresentation, unfair business practices and
violation of statutory duties and requesting a writ of
administrative mandamus against CalPERS to overturn its decision
rejecting his claims for additional reimbursement.
Although Mr. Heinz alleged a wide variety of wrongful acts by
CalPERS and Anthem, two theories principally animated the lawsuit:
(1) The promotional materials used to encourage CalPERS members to
enroll in Anthem's PPO health plans, as well as portions of the EOC
itself (including a "payment example"), while clearly stating
reimbursement for use of out-of-network providers for nonemergency
services would be at a lower percentage than for in-network
providers, falsely indicated the base Allowable Amount for services
would be identical for in-network and out-of-network providers; and
(2) the definition of Allowable Amount in the EOC that purports to
give Anthem unfettered discretion to set the Allowable Amount for
out-of-network providers without regard to the customary and
reasonable (UCR) rate, prevailing standards or the rate at which
in-network providers have contracted is unlawful.
Denial of Motion to Augment
Presiding Justice Dennis M. Perluss, writing for the Panel, holds
that the superior court did not abuse its discretion in denying the
motion to augment the administrative record.
In the superior court, Heinz sought to augment the administrative
record with portions of the contract between Anthem and CalPERS,
discovered by Heinz after the administrative process had been
completed and his lawsuit filed, that detailed financial incentives
provided by CalPERS to Anthem to control costs in administering the
PPO programs. The superior court denied the motion, ruling the
material was not relevant.
Trial Court's Error
Judge Perluss holds that the Trial Court erred in sustaining the
demurrer to all causes of action in the first amended complaint.
The trial court ruled all causes of action asserted by Heinz in his
first amended complaint were barred by claim preclusion. That was
error for two independent reasons, Judge Perluss finds. First, an
essential element for application of the doctrine of claim
preclusion is that there was a final judgment on the merits in a
prior proceeding: "Claim preclusion arises if a second suit
involves (1) the same cause of action (2) between the same parties
(3) after a final judgment on the merits in the first suit," (DKN
Holdings LLC v. Faerber (2015) 61 Cal.4th 813, 824; see Slater v.
Blackwood (1975) 15 Cal.3d 791, 795).
Second, even when the doctrine of claim preclusion properly
applies, it only "prevents relitigation of the same cause of action
in a second suit between the same parties or parties in privity
with them," Judge Perluss opines, citing Mycogen Corp. v. Monsanto
Co. (2002) 28 Cal.4th 888, 896.
Like the doctrine of claim preclusion, the doctrine of issue
preclusion generally applies only after a final adjudication, Judge
Perluss notes. In considering the decision of a judicial or
quasi-judicial administrative body in a lawsuit that combines a
petition for writ of administrative mandamus with additional
claims, as here, however, once the superior court has denied the
petition seeking to overturn the agency's decision, the court
properly gives binding effect to the adverse administrative
findings in the pending action.
As the trial court ruled in its order denying the petition for writ
of administrative mandamus, Anthem complied with the requirements
of the EOC's in determining the Allowable Amount for reimbursement
of Dr. Walker's out-of-network nonemergency services and Heinz
failed to establish any breach of the implied covenant of good
faith and fair dealing. Judge Perluss points out that the court
properly gave binding effect to that determination and,
accordingly, did not err in sustaining the demurrer to Heinz's
causes of action for breach of contract and breach of the implied
covenant following that ruling. The finding of no breach of
contract encompassed by the order denying the writ petition,
however, does not preclude the other causes of action alleged in
Heinz's first amended complaint as a matter of law.
The trial court ruled Heinz provided timely notice for purposes of
equitable tolling as to all claims or issues raised in the
administrative action. The Appellate Court agrees. However, because
it ruled (erroneously, as explained) that claim and issue
preclusion barred all causes of action in the first amended
complaint, the court did not address which of Heinz's causes of
action were based on claims presented in the administrative
proceedings and entitled to the benefit of equitable tolling.
As the court noted, Heinz's causes of action are subject to either
three- or four-year statutes of limitations. The CalPERS Board
adopted the administrative law judge's proposed decision on March
20, 2017. The order denying Heinz's petition for reconsideration
was filed May 22, 2017. Heinz filed his original complaint on June
13, 2017--three weeks after the denial of the petition for
reconsideration.
Assuming Heinz's various causes of action accrued no earlier than
September 2008 when he first became aware of the level of
reimbursement for Dr. Walker as a nonpreferred provider, and
applying the shorter three-year statute of limitations, any cause
of action based on claims raised in the administrative action by
July 2011--two years 11 months later--would be subject to equitable
tolling and presumptively timely filed, at least for purposes of a
viable pleading, Judge Perluss holds.
In its demurrer, CalPERS argued Heinz's failure to timely file
under the Government Claims Act precluded his causes of action
against it and it was entitled to governmental immunity with
respect to his breach of fiduciary duty claim because negotiation
of the terms of the EOC's with Anthem was discretionary activity
within the meaning of Government Code sections 815.2, subdivision
(b), and 820.2.28 The trial court did not address either of those
defenses in sustaining the demurrer without leave to amend.
In light of the Appellate Court's decision on equitable estoppel,
it is appropriate for the superior court to expressly rule in the
first instance on Heinz's first amended petition for an order
relieving petitioner from the provisions of Government Code section
945.5, thereby, determining whether a timely claim under the
Government Claims Act was required for the surviving causes of
action; if so, whether Heinz satisfied that requirement; and, if
not, whether his failure to timely file is excused on any of the
grounds set forth in his petition.
As for CalPERS's immunity defense to the cause of action for breach
of fiduciary duty, as CalPERS contends, the provisions in the PPO
plans authorizing Anthem to pay reduced levels of reimbursement for
out-of-network providers are designed to encourage use of preferred
providers, thereby, permitting CalPERS to better control healthcare
costs for its members.
However, although far from a model of pleading, Heinz's first
amended complaint also alleges that CalPERS breached its fiduciary
duty to its members by failing to adequately oversee Anthem's
administration of the PPO's--the ministerial implementation of a
basic policy not subject to governmental immunity. Those
allegations are sufficient to defeat CalPERS's demurrer on this
ground, Judge Perluss holds.
Disposition
The judgment of dismissal is reversed. The order denying the
petition for writ of administrative mandamus is affirmed. On
remand, the trial court is directed to enter a new order overruling
CalPERS and Anthem's demurrer to the causes of action for breach of
fiduciary duty (second cause of action), misrepresentation (fourth
cause of action), traditional writ of mandate (fifth cause of
action), unfair business practices (sixth cause of action) and
breach of statutory duties (eighth cause of action) and sustaining
the demurrer to all other causes of action without leave to amend.
The parties are to bear their own costs on appeal.
A full-text copy of the Court's Opinion dated April 19, 2021, is
available at https://tinyurl.com/m6xh5ntc from Leagle.com.
Law Offices of John Michael Jensen and John Michael Jensen --
johnjensen@johnmjensen.com -- for Plaintiff and Appellant.
Reed Smith LLP, Raymond A. Cardozo -- rcardozo@reedsmith.com --
Amir Shlesinger -- ashlesinger@reedsmith.com -- and Todd Kim for
Defendants and Respondents.
CALIFORNIA STATE: Prelim. Injunction Partly Granted in Anders Suit
------------------------------------------------------------------
In the case, TAYLOR ANDERS, HENNESSEY EVANS, ABBIGAYLE ROBERTS,
MEGAN WALAITIS, and TARA WEIR, individually and on behalf of all
those similarly situated, Plaintiffs v. CALIFORNIA STATE
UNIVERSITY, FRESNO; TERRENCE TUMEY, in his official capacity as
Director of Athletics at California State University, Fresno;
JOSEPH CASTRO, in his official capacity as former President of
California State University, Fresno; and DR. SAUL JIMENEZ-SANDOVAL,
in his official capacity as Interim President of California State
University, Fresno, Defendants, Case No. 1:21-cv-179-AWI-BAM (E.D.
Cal.), Judge Anthony W. Ishii of the U.S. District Court for the
Eastern District of California granted in part and denied in part
without prejudice the Plaintiffs' motion for preliminary
injunction.
In the 2020-21 academic year, Defendant Fresno State sponsored
eight varsity sports for men (baseball, basketball, cross country,
football, golf, tennis, outdoor track and wrestling) and 13 varsity
sports for women (basketball, cross country, equestrian, golf,
lacrosse, soccer, softball, swimming and diving, tennis, indoor
track, outdoor track, volleyball and water polo). Each of these
sports is segregated by sex. On Oct. 16, 2020, Fresno State
announced it would stop offering men's wrestling, men's tennis and
women's lacrosse at the end of the current 2020-21 academic year.
On Feb. 12, 2021, five current members of Fresno State's women's
lacrosse team filed a putative class action against Fresno State
and certain Fresno State administrators alleging that the
Defendants violated Title IX of the Education Amendments of 1972,
20 U.S.C. Section 1681 et seq. and implementing regulations by
failing to provide female students an equal opportunity to
participate in varsity athletics; failing to provide female
athletes with an equal allocation of financial aid; and failing to
provide female athletes with benefits comparable to those provided
to male athletes.
On Feb. 12, 2021, the Plaintiffs also filed the instant motion
seeking a preliminary injunction barring Fresno State from cutting
women's lacrosse -- or any other women's team -- and a preliminary
injunction requiring Fresno State "to treat the women's lacrosse
team and its members fairly" during the pendency of the
litigation.
Judge Ishii deemed the motion suitable for decision without oral
argument pursuant to Local Rule 230(g) and took the motion under
submission on March 19, 2021. He granted in part and denied in
part without prejudice the Plaintiffs' motion for preliminary
injunction.
The Judge denied the Plaintiffs' motion as to the effective
accommodation claim under 34 C.F.R. Section 106.41(c)(1) because
the evidence currently before the Court from Fresno State's 2018-19
EADA filings and 2019-20 Title IX counts indicate that Fresno State
will satisfy the substantial proportionality standard in Prong One
of the Three-Part Test when cuts to men's wrestling, men's tennis
and women's lacrosse take effect in the coming 2021-22 academic
year. Additional evidence regarding that issue, in the form of
NCAA Squad Lists and NCAA Hour Limitation Records are likely to
become available in the course of discovery and, thus, the denial
is without prejudice.
The Judge granted the Plaintiffs' motion as to the equal treatment
claim under 34 C.F.R. Section 106.41(c)(2)-(10) because the
Plaintiffs have set forth uncontroverted evidence that inequalities
in the treatment of women's lacrosse in comparison to men's teams
at Fresno State are substantial enough to deprive members of the
women's lacrosse team equal athletic opportunity.
For the remainder of the 2020-21 academic year, the Defendants will
provide a dedicated locker room and practice space for the women's
lacrosse team; equip the women's lacrosse team for competition; and
provide the women's lacrosse team with funding and benefits on par
with the average in each respect provided to Fresno State's
existing varsity teams.
The foregoing preliminary injunction will issue without bond, take
effect immediately and remain in full force and effect through --
and automatically expire at the end of -- Fresno State's 2020-21
academic year unless modified by the Court.
The action is referred back to the magistrate judge for further
proceedings consistent with the Order.
A full-text copy of the Court's April 21, 2021 Order is available
at https://tinyurl.com/ussv84f7 from Leagle.com.
CANOO INC: Hagens Berman Reminds Investors of June 1 Deadline
-------------------------------------------------------------
Hagens Berman urges Canoo Inc. f/k/a Hennessy Capital Acquisition
Corp. IV (NASDAQ: GOEV) investors with significant losses to submit
your losses now. A securities fraud class action has been filed and
certain investors may have valuable claims.
Class Period: Aug. 18, 2020 - Mar. 29, 2021
Lead Plaintiff Deadline: June 1, 2021
Visit: www.hbsslaw.com/investor-fraud/GOEV
Contact An Attorney Now: GOEV@hbsslaw.com
844-916-0895
Canoo Inc. (NASDAQ: GOEV) Securities Fraud Class Action:
The complaint alleges Canoo misled investors before and after going
public through a SPAC closing on Dec. 21, 2020.
Specifically, Defendants repeatedly touted a three-pronged strategy
to generate revenue and growth: (i) an engineering services
segment; (ii) the sales of subscriptions of vehicles to consumers;
and (iii) the sale of vehicles to other businesses. Canoo also
emphasized its agreements with established OEMs, including with
Hyundai for the co-development of a future EV platform
In truth, defendants concealed that Canoo (1) had decreased its
focus on its plan to sell vehicles to consumers through a
subscription model; (2) would de-emphasize its engineering services
business; and (3) did not have partnerships with OEMs and no longer
engaged in the previously announced partnership with Hyundai.
On Mar. 29, 2021, the truth emerged when Canoo abruptly announced
its CFO was being replaced, that it would deemphasize its
engineering services business, would no longer focus on
subscription sales to consumers, and try to make and sell its own
vehicles to commercial operators. Moreover, on a call with
investors, Canoo's Chairman characterized senior management's
statements concerning the company's partnerships as "aggressive"
and that "they weren't at our standard of representation to the
public markets."
In response to this news, analyst Roth Capital downgraded the
company's shares from buy to neutral buy and slashed its price
target, and the price of Canoo shares crashed.
Most recently, on Apr. 22, 2021 Canoo abruptly announced additional
C-Suite departures. This time, the company announced, CEO Ulrich
Kranz and General Counsel Andrew Wolstan will leave Canoo effective
Apr. 30, 2021.
"We're focused on investors' losses and proving defendants
intentionally misrepresented the viability of Canoo's business
model and business partnerships," said Reed Kathrein, the Hagens
Berman partner leading the investigation.
If you are a Canoo investor and have significant losses, or have
knowledge that may assist the firm's investigation, click here to
discuss your legal rights with Hagens Berman.
Whistleblowers: Persons with non-public information regarding Canoo
should consider their options to help in the investigation or take
advantage of the SEC Whistleblower program. Under the new program,
whistleblowers who provide original information may receive rewards
totaling up to 30 percent of any successful recovery made by the
SEC. For more information, call Reed Kathrein at 844-916-0895 or
email GOEV@hbsslaw.com.
About Hagens Berman
Hagens Berman is a national law firm with eight offices in eight
cities around the country and over eighty attorneys. The firm
represents investors, whistleblowers, workers and consumers in
complex litigation. More about the firm and its successes is
located at hbsslaw.com. For the latest news visit our newsroom or
follow us on Twitter at @classactionlaw.
Contact:
Reed Kathrein, 844-916-0895 [GN]
CAPIO PARTNERS: Faces Douglas Suit Over FDCPA Non-Compliance
------------------------------------------------------------
ROSSMARY DOUGLAS, Plaintiff v. CAPIO PARTNERS, LLC, Defendant, Case
No. CACE-21-007631 (Fla. 17th Jud. Cir. Ct., April 15, 2021) brings
this complaint on behalf of herself and all other similarly
situated against the Defendant for its alleged violation of the
Fair Debt Collection Practices Act.
The Plaintiff has three alleged debts, incurred primarily for
medical care and treatment, that were placed with the Defendant for
the purpose of collection. The Defendant allegedly reported
information about the alleged debts to two credit reporting
agencies, TransUnion and Equifax, which the Defendant knew would
impact the Plaintiff's credit report and score. Although the
Plaintiff sent the Defendant three separate letters in an attempt
to dispute the validity of the alleged debts, the Defendant failed
or otherwise refused to inform the credit reporting agencies that
the alleged debts were disputed by the Plaintiff, the suit says.
As a result of the Defendant's alleged non-compliance of the law,
the Plaintiff and other similarly situated individuals have
suffered nominal damages. Thus, the Plaintiff seeks statutory,
actual and nominal damages, pre- and post-judgment interest,
litigation costs and reasonable attorneys' fees and expenses, and
other relief as the Court may deem just and proper.
Capio Partners, LLC is a debt collector. [BN]
The Plaintiff is represented by:
Jordan A. Shaw, Esq.
Edward H. Zebersky, Esq.
Mark S. Fistos, Esq.
ZEBERSKY PAYNE SHAW LEWENZ, LLP
110 SE 6th Street, Suite 2900
Fort Lauderdale, FL 33301
Tel: (954) 989-6333
Fax: (954) 989-7781
E-mail: jshaw@zpllp.com
- and –
J. Dennis Card, Jr., Esq.
CONSUMER LAW ORGANIZATION, P.A.
721 US Highway 1, Suite 201
North Palm Beach, FL 33408
Tel: (561) 822-3446
Fax: (305) 574-0132
E-mail: dennis@cloorg.com
CAPITAL ONE: Third Circuit Affirms Judgments in Langer Class Suit
-----------------------------------------------------------------
The United States Court of Appeals for the Third Circuit affirms
the judgments in the lawsuits titled RANDY LANGER; JAMES LANGER v.
CAPITAL ONE AUTO FINANCE, A Division of Capital One, N.A. Rudy A.
Fabian; Fabian Legal Services, LLC, Appellants. RUDY A. FABIAN;
FABIAN LEGAL SERVICES, LLC v. RICHARD E. SHENKAN; SHENKAN INJURY
LAWYERS, LLC, (W.D. Pa. No. 2-19-cv-00582) SHENKAN INJURY LAWYERS,
LLC; RICHARD SHENKAN, v. RUDY FABIAN; FABIAN LEGAL SERVICES, LLC
(W.D. Pa. No. 2-19-cv-01520) Ruby Fabian, Fabian Legal Services,
LLC, Appellants, Case Nos. 19-3875, 20-1743 (3d Cir.).
These three cases, consolidated in two appeals, relate to a fee
dispute between two attorneys: Rudy Fabian of Pennsylvania and
Richard Shenkan of Michigan. For three-and-a-half years, Fabian
worked for Shenkan as an independent contractor, performing legal
research and writing services in support of nine class actions in
which Shenkan served as sole class counsel. In return, Shenkan paid
Fabian biweekly and gave him occasional bonuses for a total
compensation of $315,426. Shenkan also reimbursed Fabian for office
and travel expenses and provided him a furnished office, computer,
and printer.
Although the two never formalized their arrangement in writing,
that was not a problem--at least until the class actions began to
settle. But after Shenkan received $2.6 million in attorney's fees
from one settlement and $2.92 million from another, Fabian sought a
share of Shenkan's fee awards. That led to three lawsuits in two
districts, with Fabian losing and timely appealing each. In
exercising appellate jurisdiction over those appeals from final
orders, see 28 U.S.C. Section 1291.
The Eastern District of Pennsylvania Litigation
Mr. Shenkan's fee award of $2.6 million arose from the Langer class
action in the Eastern District of Pennsylvania, see Langer v. Cap.
One Auto Fin., No. 2-16-cv-06130 (E.D. Pa. 2019). Seeking a share
of that award, Fabian filed a motion for attorney's fees under
Federal Rule of Civil Procedure 23(h)(1).
With jurisdiction over the underlying class action, see 28 U.S.C.
Section 1332(d)(2), the Eastern District denied Fabian's motion for
attorney's fees. As the court explained, Fabian's dispute was with
Shenkan--not the Langer class members whom he did not represent.
The court further remarked that Fabian's challenge was more in the
nature of a quantum meruit claim.
The Western District of Pennsylvania Litigation
Mr. Fabian did pursue such a quantum meruit claim to seek fees for
his work on the Maszgay class action, see Maszgay v. First
Commonwealth Bank, No. 686-2015 (Ct. Com. Pl. Jefferson Cnty., Pa.
2018). On that theory, he sued Shenkan in the Court of Common Pleas
of Allegheny County for approximately $1.4 million of Shenkan's
$2.92 million fee award. Shenkan removed that case to the Western
District of Pennsylvania and then countersued Fabian for a
declaratory judgment that Fabian has no right to a share of the
fees in any of the nine class actions.
The Western District consolidated those suits. Exercising diversity
jurisdiction, see 28 U.S.C. Section 1332(a)(1), and applying
Pennsylvania law by consent of the parties, the court entered
summary judgment in favor of Shenkan. As to Fabian's quantum meruit
claim, the court explained that it would not be unconscionable for
Shenkan to retain the fees awarded in Maszgay. For similar reasons,
the court issued an order declaring that Fabian has no right to any
of the fees from the nine class actions.
The Appeals
Mr. Fabian first challenges the Eastern District's denial of his
motion for attorney's fees under Rule 23(h) of the Federal Rules of
Civil Procedure. His argument rests on the premise that class
action fee awards under Rule 23(h) may be made to persons other
than class counsel. In that, he is correct, says Circuit Judge
Peter Joseph Phipps, writing for the Panel.
Judge Phipps opines that the text of the Rule does not limit fee
awards to class counsel; Rather, Rule 23(h) provides that, upon a
motion in a certified class action, a court may award reasonable
attorney's fees and nontaxable costs that are authorized by law or
by the parties' agreement.
But establishing that persons other than class counsel may be
awarded fees under Rule 23(h) is not enough for Fabian to prevail,
Judge Phipps finds. An award of attorney's fees under Rule 23(h)
must be authorized by law or by agreement of the parties, and here,
Fabian does not establish a right to fees under either method.
Fabian does not identify an independent authorization by law that
would allow him to recover fees under Rule 23(h).
Mr. Fabian's fee request likewise fails under the second Rule 23(h)
method--agreement of the parties. He does not identify any
agreement between himself and one of the parties or class members
that would allow him to seek Rule 23(h) fees. To the contrary, by
his own admission, Fabian did not represent any of the Langer class
members; rather, Shenkan served as sole class counsel.
Accordingly, the Eastern District did not err as a matter of law or
abuse its discretion by denying Fabian's motion for attorney's fees
under Rule 23(h).
Mr. Fabian also challenges the Western District's grant of summary
judgment and entry of a declaratory judgment in favor of Shenkan,
see Kelly v. Maxum Specialty Ins. Grp., 868 F.3d 274, 281 (3d Cir.
2017). He begins by seeking fees for his work on the Maszgay class
action under quantum meruit. And here, Fabian worked as an
independent contractor for Shenkan for three-and-a-half years under
agreed upon terms.
Though the two attorneys never formalized their arrangement in
writing--having thrice failed to sign a written agreement--that
does not mean that they were unbound by contract, Judge Phipps
opines. To the contrary, Fabian and Shenkan reached a meeting of
the minds on the material terms of their working arrangement. The
terms of the independent-contractor relationship were clear: in
exchange for Fabian's legal research and writing services, Shenkan
paid him biweekly, provided him with an office and equipment, and
reimbursed his expenses.
Judge Phipps holds that quantum meruit does not allow a party to a
contract to resort to equity to recover compensation that the party
did not successfully negotiate in contract. Accordingly, the
Western District did not err by granting Shenkan summary judgment
on Fabian's quantum meruit claim.
Finally, Fabian challenges the Western District's declaratory
judgment concerning the remaining class actions. As explained,
neither Rule 23(h) nor the doctrine of quantum meruit allows Fabian
to obtain additional compensation for his work on Langer or
Maszgay. Because Fabian's work on Shenkan's other class actions
shares the same key features, the Western District did not err as a
matter of law or in the exercise of its discretion in declaring
that Fabian has no right to a portion of the fees from the
remaining class actions.
For these reasons, the Third Circuit affirms each of the
judgments.
A full-text copy of the Court's Opinion dated April 19, 2021, is
available at https://tinyurl.com/2phemn2u from Leagle.com.
CAROUSEL CHECKS: Court Dismisses Paguada Suit Due to Settlement
---------------------------------------------------------------
The U.S. District Court for the Southern District of New York
dismissed with prejudice the lawsuit captioned JOSUE PAGUADA, on
behalf of himself and all others similarly situated, Plaintiff v.
CAROUSEL CHECKS INC., Defendant, Case No. 20 CV 9530-LTS-SN
(S.D.N.Y.).
The attorneys for the parties have advised the Court that the
putative class action has been or will be settled.
Accordingly, it is ordered that the action is dismissed with
prejudice as to the Named Plaintiff and without prejudice as to all
other plaintiffs and without costs to either party, but without
prejudice to restoration of the action to the calendar of District
Judge Laura Taylor Swain if settlement is not achieved within 30
days of the date of the Order.
If a party wishes to reopen this matter or extend the time within
which it may be settled, the party must make a letter application
before the 30-day period expires.
The parties are advised that if they wish the Court to retain
jurisdiction in the matter for purposes of enforcing any settlement
agreement, they will submit the settlement agreement to the Court
to be so ordered.
A full-text copy of the Court's Order dated April 19, 2021, is
available at https://tinyurl.com/8s2x25zs from Leagle.com.
CHAMPIGNON BRANDS: Bronstein Gewirtz Reminds of June 9 Deadline
---------------------------------------------------------------
Bronstein, Gewirtz & Grossman, LLC notifies investors that a class
action lawsuit has been filed against of Champignon Brands Inc. and
certain of its officers, on behalf of shareholders who purchased or
otherwise acquired Champignon securities between March 27, 2020 and
February 17, 2021, both dates inclusive (the "Class Period"). Such
investors are encouraged to join this case by visiting the firm's
site: www.bgandg.com/shrmf.
This class action seeks to recover damages against Defendants for
alleged violations of the federal securities laws under the
Securities Exchange Act of 1934.
The complaint alleges that throughout the Class Period, Defendants
made materially false and/or misleading statements and failed to
disclose that: (1) Champignon had undisclosed material weaknesses
and insufficient financial controls; (2) Champignon's previously
issued financial statements were false and unreliable; (3)
Champignon's earlier reported financial statements would need to be
restated; (4) Champignon's acquisitions involved an undisclosed
related party; (5) as a result of the foregoing and subsequent
reporting delays and issues, the British Columbia Securities
Commission would suspend Champignon's from trading; and (6) as a
result, defendants' statements about Champignon's business,
operations, and prospects, were materially false and misleading
and/or lacked a reasonable basis at all relevant times.
A class action lawsuit has already been filed. If you wish to
review a copy of the Complaint you can visit the firm's site:
www.bgandg.com/shrmf or you may contact Peretz Bronstein, Esq. or
his Investor Relations Analyst, Yael Hurwitz of Bronstein, Gewirtz
& Grossman, LLC at 212-697-6484. If you suffered a loss in
Champignon you have until June 9, 2021 to request that the Court
appoint you as lead plaintiff. Your ability to share in any
recovery doesn't require that you serve as a lead plaintiff.
Bronstein, Gewirtz & Grossman, LLC is a corporate litigation
boutique. Our primary expertise is the aggressive pursuit of
litigation claims on behalf of our clients. In addition to
representing institutions and other investor plaintiffs in class
action security litigation, the firm's expertise includes general
corporate and commercial litigation, as well as securities
arbitration. Attorney advertising. Prior results do not guarantee
similar outcomes.
Contact:
Bronstein, Gewirtz & Grossman, LLC
Peretz Bronstein or Yael Hurwitz
212-697-6484 | info@bgandg.com
URL : http://bgandg.com
Contact Information:
Bronstein, Gewirtz & Grossman, LLC
Peretz Bronstein or Yael Hurwitz
212-697-6484 | info@bgandg.com [GN]
CHAMPIGNON BRANDS: Frank R. Cruz Reminds of June 9 Deadline
-----------------------------------------------------------
The Law Offices of Frank R. Cruz reminds investors that a class
action lawsuit has been filed on behalf of shareholders of
Champignon Brands Inc. Investors have until the deadline listed
below to file a lead plaintiff motion.
Investors suffering losses on their investments are encouraged to
contact The Law Offices of Frank R. Cruz to discuss their legal
rights in the class action at 310-914-5007 or by email to
fcruz@frankcruzlaw.com.
Champignon Brands Inc. (OTC: SHRMF)
Class Period: March 27, 2020 – February 17, 2021
Lead Plaintiff Deadline: June 9, 2021
The complaint filed alleges that throughout the Class Period,
Defendants made materially false and/or misleading statements, as
well as failed to disclose material adverse facts about the
Company's business, operations, and prospects. Specifically,
Defendants failed to disclose to investors that: (1) Champignon had
undisclosed material weaknesses and insufficient financial
controls; (2) Champignon's previously issued financial statements
were false and unreliable; (3) Champignon's earlier reported
financial statements would need to be restated; (4) Champignon's
acquisitions involved an undisclosed related party; (5) as a result
of the foregoing and subsequent reporting delays and issues, the
British Columbia Securities Commission would suspend Champignon's
stock from trading; (6) as a result, Defendants' statements about
its business, operations, and prospects, were materially false and
misleading and/or lacked a reasonable basis at all relevant times.
To be a member of these class actions, you need not take any action
at this time; you may retain counsel of your choice or take no
action and remain an absent member of the class action. If you wish
to learn more about these class actions, or if you have any
questions concerning this announcement or your rights or interests
with respect to these matters, please contact Frank R. Cruz, of The
Law Offices of Frank R. Cruz, 1999 Avenue of the Stars, Suite 1100,
Los Angeles, California 90067 at 310-914-5007, by email to
info@frankcruzlaw.com, or visit our website at
www.frankcruzlaw.com. If you inquire by email please include your
mailing address, telephone number, and number of shares purchased.
This press release may be considered Attorney Advertising in some
jurisdictions under the applicable law and ethical rules. [GN]
CINCINNATI, OH: Court Denies Kohler's Bid for Prelim. Injunction
----------------------------------------------------------------
In the case, ERIC KOHLER, Plaintiff v. CITY OF CINCINNATI, et al.,
Defendants, Case No. 1:20-cv-889 (S.D. Ohio), Judge Susan J. Dlott
of the U.S. District Court for the Southern District of Ohio,
Western Division, denies the Plaintiff's Motion for Preliminary
Injunction.
Plaintiff Kohler, a white male, initiated the action alleging that
continued enforcement of two decades-old Consent Decrees for police
hiring and promotions violates his constitutional right to equal
protection. In 1980, the United States sued the City, the
Cincinnati Police Division ("CPD"), and related entities alleging
that entry-level police hiring and promotion practices illegally
discriminated against black and women applicants. In settlement of
that case, the City, CPD, the Queen City Lodge No. 69, Fraternal
Order of Police ("FOP"), and the United States entered into a
Consent Decree supervised by the Court ("1981 Consent Decree") --
United States v. City of Cincinnati, No. 1:80-cv-369 (S.D. Ohio
Aug. 12, 1981).
In an effort to "insure that blacks and women are not disadvantaged
by the hiring, promotion, assignment and other employment policies
and practices of the CPD and that any disadvantage to blacks and
women which may have resulted from past discrimination is remedied
so that equal employment opportunity is provided to all," the
parties agreed to certain race and sex based criteria for new hires
and promotions to Sergeant.
In 1987, the Sentinel Police Association and eight individual
plaintiffs sued the City and the FOP in state court alleging
unlawful discrimination against black and women officers who sought
promotions to Lieutenant, Captain, and Assistant Chief -- Sentinel
Police Assn. v. City of Cincinnati, Hamilton C.P. No. A8704567
(Sept. 14, 1987). In settlement of that action, the City and FOP
agreed to a Consent Decree supervised by the Hamilton County Court
of Common Pleas ("1987 Consent Decree").
Both Consent Decrees employ a "rule of four" and "double fill"
process for new hires and promotions. Pursuant to the Consent
Decrees, applicants are placed on eligibility lists by numeric
score. The score reflects the results of a written examination,
oral board, seniority points, and other steps as delineated by
state civil service law. Applicants are then hired or promoted in
order beginning with the highest scorer on the list. After every
four promotions, the City reviews the race and sex of the four
people promoted. If no blacks or women were promoted in that group
of four, the City "double fills" the fourth position by creating
and funding an additional position for the next woman or black
person on the eligibility list. Since 2010, six people have been
promoted as "double fills," four to Sergeant and two to
Lieutenant.
Mr. Kohler, a white male, initiated the action pursuant to 42
U.S.C. Section 1983 alleging that continued enforcement of two
decades-old Consent Decrees for police hiring and promotions
violates his constitutional right to equal protection under the
Fourteenth Amendment (Count I). He later amended his Complaint to
add claims for First Amendment retaliation pursuant to 42 U.S.C.
Section 1983 (Count II), conspiracy to violate civil rights
pursuant to 42 U.S.C. Section 1985 (Count III), and failure to
prevent conspiracy to violate civil rights pursuant to 42 U.S.C.
Section 1986 (Count IV).
The Court referred the case to Magistrate Judge Karen L. Litkovitz
for initial consideration of certain pretrial motions pursuant to
28 U.S.C. Section 636(b) and Southern District of Ohio Local Rule
72.1. Plaintiff Kohler filed a Motion for Preliminary Injunction
asking that the City be enjoined from continued enforcement of the
Consent Decrees during the pendency of this action.
The Magistrate Judge issued a Report and Recommendation that the
preliminary injunction be denied primarily because the Plaintiff
had not established a substantial likelihood of standing to seek a
preliminary injunction and because he failed to demonstrate
irreparable injury in the absence of injunction. The Magistrate
Judge recommended denying Kohler's motion to enjoin the CPD from
utilizing the Consent Decrees for police promotions during the
pendency of the action. The Plaintiff timely objected, and the
Defendants responded.
Specifically, Kohler makes the following Objections: (1) the
Magistrate Judge failed to fully understand that White's and prior
"double fills" on earlier promotion eligibility lists delayed
Kohler's promotion to Sergeant thereby causing him delayed receipt
of certain seniority-based employment benefits, including detail
and overtime opportunities, eligibility for future promotions, and
preferences for shift and duty assignments and vacation; (2) the
Magistrate Judge erroneously concluded that Kohler lacks standing
to seek preliminary injunctive relief; and (3) the Magistrate Judge
erroneously denied Kohler's contention that irreparable harm exists
where a constitutional violation occurs. The Defendants responded
that the Magistrate Judge properly addressed each of these issues.
Judge Dlott has undertaken a de novo review of the Plaintiff's
Objections to the Report and Recommendation and determined that the
Objections should be overruled and the Report and Recommendation
accepted in its entirety. First, she finds that Plaintiff Kohler
faces no immediate, irreparable injury absent a preliminary
injunction. Second, the case and the related federal case, United
States v. City of Cincinnati, No. 1:80-cv-369, require CPD, the
City of Cincinnati, and the United States of America to determine a
fair and constitutional way to hire and promote police officers of
all genders and races while compensating for past discriminatory
practices without unfairly burdening the next generation of police
hires. The vital public interest involved in the case requires a
thoughtful, considered resolution rather than an immediate
reaction.
Accordingly, Judge Dlott overrules the Plaintiff's Objections,
adopts the Magistrate Judge's Report and Recommendation, and denied
the Plaintiff's Motion for Preliminary Injunction.
A full-text copy of the Court's April 21, 2021 Order is available
at https://tinyurl.com/2bmz2y3a from Leagle.com.
CITY NATIONAL: Noe Suit Temporarily Dismissed Pending Arbitration
-----------------------------------------------------------------
In the case, BRENDA C. NOE, on behalf of herself and all others
similarly situated, Plaintiff v. CITY NATIONAL BANK OF WEST
VIRGINIA, Defendant, Civil Action No. 3:19-0690 (S.D.W. Va.), Judge
Robert C. Chambers of the U.S. District Court for the Southern
District of West Virginia, Huntington Division, grants the
Defendant's motion to dismiss or stay the case pending
arbitration.
The putative class action arises out of the Defendant's practice of
assessing more than one non-sufficient funds fee ("NSF fee") for a
single attempted transaction. According to the Amended Complaint,
the Plaintiff attempted to purchase $52.10 worth of items at
Cashland in July 2018. City National rejected the payment due to
insufficient funds and charged the Plaintiff a $36 NSF fee. Weeks
later, Cashland re-submitted the transaction to City National two
more times without the Plaintiff's knowledge, and City National
assessed a $36 NSF fee each time. In total, City National charged
the Plaintiff $108 in NSF fees for a single attempted purchase of
$52.10.
This pattern repeated in May 2019 after the Plaintiff attempted a
payment to Walmart for $25.13. Pursuant to its NSF fee policy,
City National charged the Plaintiff a $36 fee that same day.
Walmart then resubmitted the charge to City National four more
times, resulting in a total charge of $180 for an attempted
transaction of $25.13.
On Sept. 20, 2019, the Plaintiff initiated the action on behalf of
herself and all similarly situated customers, claiming that the
Defendant's NSF fee practices breach contractual promises or result
in unjust enrichment. She also alleges violations of the West
Virginia Consumer Credit and Protection Act.
On Nov. 22, 2019, City National filed the pending motion arguing
for dismissal, or in the alternative, a stay pending arbitration
pursuant to the Parties' 2012 Deposit Account Agreement and
Disclosure, which contains the Arbitration Provision.
It is undisputed that the Plaintiff agreed to this contract and
that it governed her account for the next several years without
alteration. It is also undisputed that, assuming its
enforceability, the Arbitration Provision applies to the
Plaintiff's claims.
In response, the Plaintiff argues that the 2012 Deposit Agreement,
and by extension the Arbitration Provision, were novated by the
"Notice of Change" the Defendant mailed the Plaintiff in December
2017. The terms attached to the 2017 Notice of Change do not
include an arbitration clause.
When first presented with the dispute, the Court denied the
Defendant's motion, holding that the Plaintiff plausibly alleged
that the Notice of Change supplanted the 2012 Deposit Agreement. In
so holding, the Court relied on the rules for a motion to dismiss
and disregarded the evidence submitted by the Defendant.
The Defendant appealed that decision, and the Fourth Circuit held
that the Court erred by failing to treat the motion as one to
compel arbitration. The Fourth Circuit then remanded the matter
for the Court to determine "whether Noe's claims should be referred
to arbitration and, if it determines that unresolved questions of
material fact prevent it from deciding the issue to hold an
expeditious and summary hearing to resolve the issue." Consistent
with the Parties' joint status report, the Court permitted
supplemental briefing on this issue. That briefing has concluded.
The Parties' supplemental briefing raises two primary issues: (1)
whether the 2012 Deposit Agreement or the 2017 Notice of Change
controls; and (2) whether the Arbitration Provision is
unconscionable.
Judge Chambers holds that the 2012 Deposit Agreement controls and
that the Plaintiff's unconscionability claim must be arbitrated.
He finds that the Plaintiff has not demonstrated that the Parties
intended to abate the 2012 Deposit Agreement through the 2017
Notice of Change. Accordingly, the Arbitration Provision applies
to this dispute and must be enforced unless the Plaintiff can
establish that the Provision is otherwise invalid "upon such
grounds as exist at law or in equity."
The Judge also holds that the Arbitration Provision clearly and
unmistakably compels arbitration of gateway issues, including
whether the Arbitration Provision is unconscionable. The contract
reads, "Claims subject to this arbitration provision include Claims
regarding the applicability of this provision or the validity of
this or any prior agreement." The Fourth Circuit found similar
language to be unmistakably clear in Novic v. Credit One Bank,
Nat'l Ass'n, 757 F. App'x 263, 264 (4th Cir. 2019). The Judge
further holds that the Plaintiff's unconscionability claim is not
reviewable because she did not challenge the delegation clause
specifically. Rather, the Plaintiff challenged the broader
Arbitration Provision, a type of argument the Supreme Court
rejected in Rent-A-Center. Consequently, he must refrain from
reviewing the Plaintiff's claim and compel arbitration.
Finally, the Judge holds that the Plaintiff has not identified any
claims which fall outside the Arbitration Provision's broad scope.
Therefore, he concludes that dismissal pending arbitration is
appropriate.
For these reasons, Judge Chambers grants the Defendant's motion.
The case is dismissed without prejudice, pending arbitration. He
directed the Clerk to send a copy of his Order to the counsel of
record and any unrepresented parties.
A full-text copy of the Court's April 21, 2021 Memorandum Opinion &
Order is available at https://tinyurl.com/3knbezr6 from
Leagle.com.
CLEAN ENERGY: Pomerantz Law Probes Firm Over Securities Claims
--------------------------------------------------------------
Pomerantz LLP is investigating claims on behalf of investors of
Clean Energy Fuels Corp. ("Clean Energy" or the "Company") (NASDAQ:
CLNE) Such investors are advised to contact Robert S. Willoughby at
newaction@pomlaw.com or 888-476-6529, ext. 7980.
The investigation concerns whether Clean Energy and certain of its
officers and/or directors have engaged in securities fraud or other
unlawful business practices.
On April 20, 2021, Raymond James analyst Pavel Molchanov downgraded
Clean Energy's stock to underperform, opining that investors had
been "carried away by headlines over substance." Responding to news
of the Company's entry into a fuel supply agreement with
Amazon.com, Inc., Molchanov described the stock's gain on the news
as reflecting "sentiment-driven multiple expansion with minimal
read-through for profitability" and noted that the supply agreement
was for only 46 of Clean Energy's 565 stations.
On this news, Clean Energy's stock price fell $2.49 per share, or
21.03%, to close at $9.35 per share on April 20, 2021.
The Pomerantz Firm, with offices in New York, Chicago, Los Angeles,
and Paris is acknowledged as one of the premier firms in the areas
of corporate, securities, and antitrust class litigation. Founded
by the late Abraham L. Pomerantz, known as the dean of the class
action bar, the Pomerantz Firm pioneered the field of securities
class actions. Today, more than 80 years later, the Pomerantz Firm
continues in the tradition he established, fighting for the rights
of the victims of securities fraud, breaches of fiduciary duty, and
corporate misconduct. The Firm has recovered numerous
multimillion-dollar damages awards on behalf of class members. See
www.pomerantzlaw.com
CONTACT:
Robert S. Willoughby
Pomerantz LLP
rswilloughby@pomlaw.com
888-476-6529 ext. 7980 [GN]
COLLECTION BUREAU: Rivera Sues Over Unsolicited Prerecorded Calls
-----------------------------------------------------------------
STEVE RIVERA, individually and on behalf of all others similarly
situated, Plaintiff v. COLLECTION BUREAU HUDSON VALLEY, INC.,
Defendant, Case No. 9:21-cv-80711-XXXX (S.D. Fla., April 14, 2021)
brings this class action complaint against the Defendant for its
alleged violations of the Telephone Consumer Protection Act.
According to the complaint, the Defendant placed at least three
prerecorded voice calls to the Plaintiff's cellular telephone
number ending in 4416 beginning on or about March 15, 2021 through
April 6, 2021 in an attempt to collect an alleged debt of a certain
"Judith Cooper". The Plaintiff asserts that he was never a customer
of the Defendant, did not owe any money to the Defendant, and did
not have any business relationship with the Defendant.
Additionally, the Plaintiff never provided the Defendant his prior
express consent to place calls to her cellular telephone number
using an artificial or prerecorded voice. The Defendant, however,
continued placing calls to the Plaintiff's cellular telephone
number despite knowing that it was calling the wrong person, the
suit says.
As a result of the Defendant's alleged unsolicited prerecorded
calls, the Plaintiff were harmed in the form of invasion of
privacy, aggravation, annoyance, intrusion on seclusion, trespass,
conversion, as well as inconvenience and disruption of her daily
life.
The Plaintiff seeks an injunction requiring the Defendant to cease
all unsolicited prerecorded or ATDS call activity, as well as
statutory damages, treble damages, all reasonable costs, expenses,
and attorneys' fees, and other relief as the Court deems
necessary.
Collection Bureau Hudson Valley, Inc. is a debt collector. [BN]
The Plaintiff is represented by:
Manuel S. Hiraldo, Esq.
HIRALDO P.A.
401 E. Las Olas Blvd., Suite 1400
Fort Lauderdale, FL 33301
Tel: (954) 400-4713
E-mail: mhiraldo@hiraldolaw.com
- and –
Ignacio J. Hiraldo, Esq.
IJH LAW
1200 Brickell Ave., Suite 1950
Miami, FL 33131
Tel: (786) 496-4469
E-mail: ijhiraldo@ijhlaw.com
COMERICA BANK: Dickinson Suit Removed from State Ct. to C.D. Calif.
-------------------------------------------------------------------
The class action lawsuit captioned as THERESA DICKINSON, on behalf
of herself and all others similarly situated, v. COMERICA BANK, and
DOES 19-20 inclusive, Case No. CIVSB2029484 (Filed Dec. 28, 2020)
was removed from the San Bernardino County Superior Court, to the
United States District Court for the Central District of California
on March 31, 2021.
The Central District of California Court Clerk assigned Case No.
5:21-cv-00566-JWH-SP to the proceeding.
Comerica is a financial services company headquartered in Dallas,
Texas. It has retail banking operations in Texas, Michigan,
Arizona, California and Florida, with select business operations in
several other U.S. states, as well as in Canada and Mexico.[BN]
The Plaintiff is represented by:
Scott Edelsberg, Esq.
EDELSBERG LAW, P.A.
1925 Century Park E. # 1700
Los Angeles, CA 90067
Telephone: (305) 975-3320
E-mail: scott@edelsberglaw.com
The Defendant is represented by:
Peter G. Bertrand, Esq.
Cheryl M. Lott, Esq.
Aaron Levine, Esq.
BUCHALTER
1000 Wilshire Boulevard, Suite 1500
Los Angeles, CA 90017-2457
Telephone: (213) 891-0700
Facsimile: (213) 896-0400
COUNTRY PREFERRED: N.D. Illinois Dismisses Munao Insurance Suit
---------------------------------------------------------------
The U.S. District Court for the Northern District of Illinois
grants the Defendant's motion to dismiss the lawsuit entitled PENNY
JO MUNAO, Plaintiff v. COUNTRY PREFERRED INSURANCE COMPANY,
Defendant, Case No. 20 C 5235 (N.D. Ill.).
Believing her car insurer shorted her $76 when it paid her
collision claim, Plaintiff Penny Jo Munao filed in the Circuit
Court of Kane County a two-count, purported-class-action complaint
alleging breach of contract and unjust enrichment. After removing
the case to this Court, the Defendant filed a motion to dismiss.
On July 22, 2018, the Plaintiff's 2001 Acura MDX was involved in a
collision that resulted in a total loss of the vehicle. At the time
of the collision, the Plaintiff's vehicle was covered by an
insurance policy issued by Defendant Country Preferred Insurance
Company ("Country" or Defendant). Specifically, the Plaintiff's
vehicle was covered by policy P12A8664065 ("Policy") for the period
of May 15, 2018, to November 15, 2018. Under the Policy, the
Plaintiff had a $500 deductible for collision coverage.
The Plaintiff made a claim under the Policy, and the Defendant paid
a cash settlement on July 27, 2018. The Defendant valued the car at
$4,593. To that amount, the Defendant added 7.0% sales tax and $120
for "applicable title and license transfer fees." After subtracting
the deductible, the Defendant paid the Plaintiff $4,534.
The Plaintiff alleges that at the time she purchased her
replacement vehicle, the applicable title and license transfer fee
was actually $196, not the $120 the Defendant paid her. She alleges
that the Defendant underpaid her by $76.
Based on these allegations, the Plaintiff filed a purported
class-action complaint, in which she asserts claims for breach of
contract and unjust enrichment. The Defendant moves to dismiss.
In Count I, the Plaintiff asserts that the Defendant breached the
Policy. Under Illinois law, insurance disputes are governed by
general contract principles (Sigler v. GEICO Casualty Co., 967 F.3d
658, 660 (7th Cir. 2020)). The Plaintiff's theory of the case is
that the Defendant breached the Policy by paying $120 for transfer
and title fees when it was obligated to pay $196. The Plaintiff
makes several arguments to support this theory, including her
argument that the Policy "promises to pay to 'repair or replace' a
vehicle damaged by collision" and that the language "repair or
replace" necessarily includes the cost of transfer and title fees.
District Judge Jorge L. Alonso opines that this argument misquotes
the Policy, which does not promise to pay to "repair or replace"
anything, let alone a vehicle. In Section 4's Limit of Liability
provision, the Policy limits the Defendant's liability to the
lesser of four options, including the "actual cash value of the
stolen or damaged parts or vehicle" or the "cost to repair or
replace stolen or damaged parts with parts of like kind and
quality." The "repair or replace" language applies only to damaged
parts, not to the entire vehicle. In any case, the Judge points
out, it is a limit of liability, not a grant of coverage, Sigler,
967 F.3d at 660.
Judge Alonso finds, among other things, that the Plaintiff has not
stated a claim for breach of contract, and the defect is not
curable. Furthermore, it is clear from the Policy and the
Plaintiff's allegations that the Defendant has not breached the
Policy, as a matter of law. Hence, Count I is dismissed with
prejudice.
In Count II, the Plaintiff asserts a claim for unjust enrichment.
The Defendant argues that the Plaintiff's claim for unjust
enrichment cannot stand in the face of the Policy. The Court
agrees. The Plaintiff did not respond to the Defendant's motion to
dismiss as to the unjust enrichment claim, so she has waived any
arguments she could have made.
As the Defendant points out, under Illinois law, a party cannot
recover for unjust enrichment in the face of a contract, citing
Cohen v. American Sec. Ins. Co., 735 F.3d 601, 615 (7th Cir. 2013).
The Plaintiff comes close to pleading in the alternative. She
alleges that, if there is no "contractual provision" that
"expressly governs the claim," then defendant was unjustly
enriched.
The question, though, is not whether the contract contains a
provision that says what the Plaintiff wishes it said; the question
is whether a contract exists, Judge Alonso holds. Here, it is clear
from the Plaintiff's allegations (and her affidavit), as well as
from the Policy attached to the Defendant's motion to dismiss, that
a contract (namely, the Policy) exists. Hence, the Plaintiff has no
claim for unjust enrichment, and Count II is dismissed with
prejudice.
For these reasons, the Court grants the Defendant's motion to
dismiss. The Court dismisses Counts I and II with prejudice. Civil
case is terminated.
A full-text copy of the Court's Memorandum Opinion and Order dated
April 19, 2021, is available at https://tinyurl.com/y225euts from
Leagle.com.
CREDIT SUISSE: Kessler Topaz Reminds of June 15 Deadline
--------------------------------------------------------
The law firm of Kessler Topaz Meltzer & Check, LLP announces that a
securities fraud class action lawsuit has been filed in the United
States District Court for the Southern District of New York against
Credit Suisse Group AG (NYSE: CS) ("Credit Suisse") on behalf of
those who purchased or acquired Credit Suisse American Depositary
Receipts ("ADRs") between October 29, 2020 and March 31, 2021,
inclusive (the "Class Period").
Lead Plaintiff Deadline: June 15, 2021
Website:
https://www.ktmc.com/credit-suisse-class-action-lawsuit?utm_source=PR&utm_medium=Link&utm_campaign=credit_suisse
Contact: James Maro, Esq. (484) 270-1453
Adrienne Bell, Esq. (484) 270-1435
Toll free (844) 887-9500
Credit Suisse is a global financial services company based in
Zurich, Switzerland. Greensill Capital ("Greensill"), who for filed
for insolvency protection on March 8, 2021, was a financial
services company based in the United Kingdom and Australia focused
on the provision of supply-chain financing and related services.
Archegos Capital Management ("Archegos") is a family office
investment fund run by Sung Kook Hwang. Archegos' investment
holdings are primarily in the form of total return swaps, a
financial instrument where the underlying securities are held by
the banks that broker the investments.
The complaint alleges that throughout the Class Period, the
defendants concealed material defects in Credit Suisse's risk
policies and procedures and compliance oversight functions and
efforts to allow high-risk clients to take on excessive leverage,
including Greensill and Archegos, exposing Credit Suisse to
billions of dollars in losses.
Credit Suisse investors may, no later than June 15, 2021, seek to
be appointed as a lead plaintiff representative of the class
through Kessler Topaz Meltzer & Check, LLP or other counsel, or may
choose to do nothing and remain an absent class member. A lead
plaintiff is a representative party who acts on behalf of all class
members in directing the litigation. In order to be appointed as a
lead plaintiff, the Court must determine that the class member's
claim is typical of the claims of other class members, and that the
class member will adequately represent the class. Your ability to
share in any recovery is not affected by the decision of whether or
not to serve as a lead plaintiff.
Kessler Topaz Meltzer & Check, LLP prosecutes class actions in
state and federal courts throughout the country involving
securities fraud, breaches of fiduciary duties and other violations
of state and federal law. Kessler Topaz Meltzer & Check, LLP is a
driving force behind corporate governance reform, and has recovered
billions of dollars on behalf of institutional and individual
investors from the United States and around the world. The firm
represents investors, consumers and whistleblowers (private
citizens who report fraudulent practices against the government and
share in the recovery of government dollars). The complaint in this
action was not filed by Kessler Topaz Meltzer & Check, LLP. For
more information about Kessler Topaz Meltzer & Check, LLP please
visit www.ktmc.com.
CONTACT:
Kessler Topaz Meltzer & Check, LLP
James Maro, Jr., Esq.
Adrienne Bell, Esq.
280 King of Prussia Road
Radnor, PA 19087
(844) 887-9500 (toll free)
info@ktmc.com [GN]
CYTODYN INC: Faces Goodwin Securities Suit Over Share Price Drop
----------------------------------------------------------------
JAMEY CHRIS GOODWIN, Individually and on Behalf of All Others
Similarly Situated v. CYTODYN, INC., NADER Z. POURHASSAN, and
MICHAEL MULHOLLAND, Case No. 3:21-cv-05260 (W.D. Wash., April 9,
2021) seeks to recover damages caused by Defendants' violations of
the Exchange Act on behalf of a class consisting of all persons and
entities that purchased or otherwise acquired CytoDyn common stock
between March 27, 2020 and March 9, 2021, inclusive (the "Class
Period").
CytoDyn's drug named "Leronlimab" has long been promoted as a
potential therapy for HIV patients. Since the beginning of the
global COVID-19 pandemic, however, CytoDyn has made an about-face
and has begun to aggressively tout Leronlimab as a treatment for
COVID-19.
Throughout 2019, CytoDyn's stock traded for less than US$1.00 per
share. After CytoDyn's pivot to hyping Leronlimab as a treatment
for COVID-19, CytoDyn's stock price rose exponentially. The hype
hit its peak when CytoDyn shares reached over US$10.00 per share on
June 30, 2020.
CytoDyn issued numerous press releases, conducted conference calls,
participated in interviews, and aggressively utilized several
third-party investor relations and stock newsletter services to
tout Leronlimab as a potential treatment for COVID-19 and to pump
up the stock price of CytoDyn while executives aggressively sold
shares. Long-term shareholders, including Defendants Pourhassan and
Mulholland, dumped millions of shares, the suit says.
In addition to overstating the viability of Leronlimab as a
COVID-19 treatment, CytoDyn also engaged in a wrongful scheme with
its lender, Iliad Research and Trading L.P., and its principal John
Fife, whereby Iliad and other Fife entities operated as an
unregistered securities dealer for CytoDyn. In connection with
Iliad lending funds to CytoDyn, Iliad obtained a convertible
promissory note from CytoDyn and converted the note into newly
issued shares of CytoDyn and sold those shares into the public
market at a profit, in violation of the dealer registration
requirements of the federal securities laws.
Following Defendants Pourhassan's and Mulholland's cash-out of
CytoDyn shares at artificially inflated prices, the price of
CytoDyn shares dropped precipitously to the detriment of Plaintiff
and the class. The market has learned that CytoDyn's development
and marketing of Leronlimab as a treatment for COVID-19 was not
commercially viable for CytoDyn.
CytoDyn is a publicly-traded biotechnology company focusing on the
development and commercialization of a drug named "Leronlimab"
which has long been promoted as a potential therapy for HIV
patients.[BN]
The Plaintiff is represented by:
Matthew J. Ide, Esq.
IDE LAW OFFICE
7900 SE 28th Street, Suite 500
Mercer Island, WA 98050
Telephone: (206) 625-1326
E-mail: mjide@yahoo.com
DANBURY, CT: Nearly 40% of FCI Inmates Refused COVID-19 Vaccine
---------------------------------------------------------------
Associated Press reports that just under 40% of the inmates inside
the federal prison complex in Danbury have refused to take the
COVID-19 vaccine, according to federal officials. The U.S.
Attorney's office in Connecticut disclosed the latest vaccination
numbers in a court filing as part of a class-action lawsuit over an
alleged failure to protect prisoners from the coronavirus inside
the institution.
There are currently 756 inmates at the Federal Correctional
Institution Danbury, according to the federal Bureau of Prisons
website. Prosecutors said that since the prison first began
offering the vaccine to inmates in January, 296 have refused to
take the vaccine. [GN]
DIAMONDPEAK HOLDINGS: Rosen Law Firm Reminds of May 17 Deadline
---------------------------------------------------------------
WHY: Rosen Law Firm, a global investor rights law firm, reminds:
(i) purchasers of the securities of Lordstown Motors Corp. f/k/a
DiamondPeak Holdings Corp. (NASDAQ: RIDE, DPHC) between August 3,
2020 and March 24, 2021, inclusive; and (ii) all holders of
DiamondPeak common stock entitled to participate in the August 22,
2020 shareholder vote on the merger with Lordstown (the "Class
Period"), of the important May 17, 2021 lead plaintiff deadline.
SO WHAT: If you purchased Lordstown securities during the Class
Period you may be entitled to compensation without payment of any
out of pocket fees or costs through a contingency fee arrangement.
WHAT TO DO NEXT: To join the Lordstown class action, go to
http://www.rosenlegal.com/cases-register-2056.htmlor call Phillip
Kim, Esq. toll-free at 866-767-3653 or email pkim@rosenlegal.com or
cases@rosenlegal.com for information on the class action. A class
action lawsuit has already been filed. If you wish to serve as lead
plaintiff, you must move the Court no later than May 17, 2021. A
lead plaintiff is a representative party acting on behalf of other
class members in directing the litigation.
WHY ROSEN LAW: We encourage investors to select qualified counsel
with a track record of success in leadership roles. Often, firms
issuing notices do not have comparable experience or resources. The
Rosen Law Firm represents investors throughout the globe,
concentrating its practice in securities class actions and
shareholder derivative litigation. Rosen Law Firm has achieved the
largest ever securities class action settlement against a Chinese
Company. Rosen Law Firm was Ranked No. 1 by ISS Securities Class
Action Services for number of securities class action settlements
in 2017. The firm has been ranked in the top 4 each year since 2013
and has recovered hundreds of millions of dollars for investors. In
2019 alone the firm secured over $438 million for investors. In
2020 founding partner Laurence Rosen was named by law360 as a Titan
of Plaintiffs' Bar. Many of the firm's attorneys have been
recognized by Lawdragon and Super Lawyers.
DETAILS OF THE CASE: According to the lawsuit, defendants
throughout the Class Period made false and/or misleading statements
and/or failed to disclose that: (1) Lordstown's purported
pre-orders were non-binding; (2) many of the would-be customers who
made these purported pre-orders lacked the means to make such
purchases and/or would not have credible demand for Lordstown's
Endurance; (3) Lordstown is not and has not been "on track" to
commence production of the Endurance in September 2021; (4) the
first test run of the Endurance led to the vehicle bursting into
flames within 10 minutes; and (5) as a result, defendants' public
statements were materially false and misleading at all relevant
times. When the true details entered the market, the lawsuit claims
that investors suffered damages.
To join the Lordstown class action, go to
http://www.rosenlegal.com/cases-register-2056.htmlor call Phillip
Kim, Esq. toll-free at 866-767-3653 or email pkim@rosenlegal.com or
cases@rosenlegal.com for information on the class action.
No Class Has Been Certified. Until a class is certified, you are
not represented by counsel unless you retain one. You may select
counsel of your choice. You may also remain an absent class member
and do nothing at this point. An investor's ability to share in any
potential future recovery is not dependent upon serving as lead
plaintiff.
Attorney Advertising. Prior results do not guarantee a similar
outcome.
Contact Information:
Laurence Rosen, Esq.
Phillip Kim, Esq.
The Rosen Law Firm, P.A.
275 Madison Avenue, 40th Floor
New York, NY 10016
Tel: (212) 686-1060
Toll Free: (866) 767-3653
Fax: (212) 202-3827
lrosen@rosenlegal.com
pkim@rosenlegal.com
cases@rosenlegal.com
www.rosenlegal.com [GN]
EBANG INTERNATIONAL: The Klein Law Reminds of June 7 Deadline
-------------------------------------------------------------
The Klein Law Firm announces that a class action complaint has been
filed on behalf of shareholders of Ebang International Holdings
Inc. (NASDAQ: EBON) alleging that the Company violated federal
securities laws.
Class Period: June 26, 2020 and April 5, 2021
Lead Plaintiff Deadline: June 7, 2021
Learn more about your recoverable losses in EBON:
http://www.kleinstocklaw.com/pslra-1/ebang-international-holdings-inc-loss-submission-form?id=15090&from=5
The filed complaint alleges that Ebang International Holdings Inc.
made materially false and/or misleading statements and/or failed to
disclose that: (1) the proceeds from Ebang's public offerings had
been directed to an low yield, long term bonds to an underwriter
and to related parties rather than used to develop the Company's
operations; (2) Ebang's sales were declining and the Company had
inflated reported sales, including through the sale of defective
units; (3) Ebang's attempts to go public in Hong Kong had failed
due to allegations of embezzling investor funds and inflated sales
figures; (4) Ebang's purported crytocurrency exchange was merely
the purchase of an out-of-the-box crypto exchange; and (5) as a
result of the foregoing, Defendants' positive statements about the
Company's business, operations, and prospects were materially
misleading and/or lacked a reasonable basis.
Shareholders have until June 7, 2021 to petition the court for lead
plaintiff status. Your ability to share in any recovery doesn't
require that you serve as a lead plaintiff.
For additional information about the EBON lawsuit, please contact
J. Klein, Esq. by telephone at 212-616-4899 or click the link
above.
J. Klein, Esq. represents investors and participates in securities
litigations involving financial fraud throughout the nation.
Attorney advertising. Prior results do not guarantee similar
outcomes. [GN]
EDISON INT'L: Ninth Cir. Affirms Dismissal of Wilson's ERISA Claims
-------------------------------------------------------------------
The United States Court of Appeals for the Ninth Circuit affirms
the dismissal of the Plaintiff's claims in the lawsuit entitled
CASSANDRA WILSON, and all other individuals similarly situated,
Plaintiff-Appellant, v. THEODORE F. CRAVER; ROBERT BOADA,
Defendants-Appellees, Case No. 18-56139 (9th Cir.).
The Employee Retirement Income Security Act of 1974, as amended
("ERISA"), requires the fiduciary of a pension plan to act
prudently in managing the plan's assets. The case focuses on that
duty of prudence as applied to the fiduciary of an employee stock
ownership plan ("ESOP")--a type of pension plan that invests
primarily in the stock of the company that employs the plan
participants.
Plaintiff-Appellant Cassandra Wilson, an Edison International Inc.
("Edison") employee, brought the putative class action against two
Edison executives, who are fiduciaries of Edison's 401(k) ESOP
plan. The Plaintiff alleges that Defendant Fiduciary Boada breached
his duty of prudence by allowing employees to continue to invest in
Edison stock after he learned that the Edison stock was
artificially inflated.
Background
Edison is the parent company of Southern California Edison Company
("SCE"), which supplies electricity to much of Southern California.
Eligible employees of SCE, Edison, and other subsidiaries of Edison
may participate in a defined contribution plan, the Edison 401(k)
Savings Plan, by diverting a percentage of their earnings to be
invested in funds offered by the Plan. One fund option available to
Plan participants was the Edison Company Stock Fund (the "Stock
Fund"). The Stock Fund is an ESOP that primarily holds Edison
common stock. Stock Fund options are chosen by Edison's Trust
Investment Committee. Theodore Craver, Edison's CEO at all relevant
times, appointed the Trust Investment Committee's members, which
included Robert Boada, Edison's Vice President and Treasurer.
Craver and Boada are the defendant fiduciaries in the action
("Defendants").
The Plaintiff alleges that the Defendants breached their duty of
prudence because they knew that undisclosed misrepresentations were
artificially inflating Edison's stock price, yet they took no
action to protect the Plan participants from the foreseeable harm
that inevitably results when fraud is revealed to the market. The
alleged misrepresentations concerned SCE's failure to disclose
certain ex parte communications between SCE executives and
California Public Utilities Commission ("CPUC") decision-makers
that occurred while the CPUC was overseeing SCE's rate-setting
proceedings and settlement negotiations with ratepayer advocacy
groups. The failure to disclose these communications was material
to the market because once revealed, the ex parte communications
called the highly anticipated settlement between SCE and the
ratepayer advocacy groups into question.
The CPUC concluded that SCE failed to report eight qualifying
communications, justifying a penalty of $16.7 million.
Edison's stock price appreciated substantially after the SONGS
Settlement was first announced in March 2014. The stock price
continued to rise after the CPUC approved the SONGS Settlement in
November 2014, rising to over $67 per share in early 2015. The
stock price began to decline, however, when news that SCE
executives had engaged in improper ex parte communications with
CPUC decisionmakers came to light.
The Plaintiff claims that Edison's stock price depreciated 15% as
the truth of the ex parte communications slowly emerged over a
series of partial disclosures. The final disclosure was a June 24,
2015 application by one of the interested ratepayer advocacy groups
to charge SCE with "fraud by concealment," which confirmed fears
that the SONGS Settlement was in jeopardy.
On November 24, 2015, before the CPUC's final ruling, the Plaintiff
filed this putative class action against the Defendants on behalf
of herself and all Plan participants that purchased or held the
Edison Company Stock Fund during the Class Period--between March
27, 2014 (when the SONGS Settlement was announced) and June 24,
2015 (the final partial disclosure revealing the fraud to the
market). She alleged that as a member of the Trust Investment
Committee, Defendant Boada had a fiduciary duty to ensure the
continued prudence of all Plan participants' investments, including
in the Stock Fund. She further alleged that as the person
responsible for overseeing the Trust Investment Committee,
Defendant Craver had a fiduciary duty to monitor Defendant Boada
and ensure he was fulfilling his fiduciary obligations.
The Plaintiff alleges that Boada breached his duty of prudence by
failing promptly to disclose the ex parte communications, which
would have allowed the Company's stock price to correct and
mitigated the harm suffered by Plan participants. Derivatively, the
Plaintiff alleges that Defendant Craver breached his duty by
failing to ensure Defendant Boada took corrective action.
The district court dismissed the Plaintiff's first two complaints
without prejudice. The district court later dismissed the operative
Second Amended Complaint ("SAC"), concluding that it failed to
satisfy the pleading standard for ESOP duty-of-prudence claims set
forth in Fifth Third, 573 U.S. 409.3 This appeal followed.
Discussion
The sole issue on appeal is whether the Plaintiff plausibly alleged
a duty-of-prudence claim under the pleading standard announced in
Fifth Third, 573 U.S. 409. The Plaintiff makes two primary
objections to the district court's application of the Fifth Third
pleading standard. First, she contends that the district court's
application makes it impossible to plead duty-of-prudence claims.
Second, she asserts that the allegations in the SAC are analogous
to the allegations in Jander v. Ret. Plans Comm. of IBM, 910 F.3d
620, 632 (2d Cir. 2018), vacated and remanded, 140 S.Ct. 592
(2020), reinstated, 962 F.3d 85, cert. denied sub nom. Ret. Plans
Comm. v. Jander, No. 20-289, 2020 WL 6551787 (U.S. Nov. 9, 2020),
which in Plaintiff's view is the only decision to correctly apply
Fifth Third.
The Plaintiff contends, among other things, that in concluding the
SAC failed to satisfy Fifth Third, the district court "brushed
right past the majority of the [Fifth Third] opinion," which flatly
rejected the presumption of prudence that made it impossible for a
plaintiff to state a duty-of-prudence-claim, only to apply the
newly announced standard in a manner that similarly makes it
impossible to state a duty-of-prudence claim.
Circuit Judge Mary Helen Murguia, writing for the Panel, holds that
the Plaintiff's assertion that the district court applied such an
impossible standard, however, mischaracterizes the district court's
order. The district court did not hold that the Plaintiff failed to
state a duty-of-prudence claim solely because the proposed
alternative--a corrective disclosure--would have caused a drop in
Edison's stock price. Rather, it concluded that the Plaintiff's SAC
failed to include context-specific allegations plausibly explaining
why a prudent fiduciary in Defendants' position "could not have
concluded" that a corrective disclosure would do more harm than
good to the Stock Fund. Instead, the district court concluded that
the Plaintiff relied on wholly conclusory allegations framed in a
manner that could apply to any similar ERISA claim.
The Plaintiff's SAC primarily relies on the theory that no
reasonable fiduciary could have thought that disclosing the truth
of the ex parte communications would do more harm than good to the
Plan because throughout the Class Period the stock price was
continually rising and key metrics reflecting the underlying risk
and volatility of Edison stock indicated that the risk was
increasing. But nearly every court to consider duty-of-prudence
claims post Fifth-Third has rejected the notion that general
economic principles, such as those the Plaintiff relied on, are
enough on their own to plead duty-of-prudence violations, Judge
Murguia opines, citing Allen v. Wells Fargo & Co., 967 F.3d 767,
774 (8th Cir. 2020).
This consensus is consistent with Fifth Third's call for
context-specific allegations and the Supreme Court's stated intent
to provide some protection from meritless claims, Judge Murguia
says. Notably, if all that is required to plead a duty-of-prudence
claim is recitation of generic economic principles that apply in
every ERISA action, every claim, regardless of merit, would go
forward. Accordingly, the Ninth Circuit joins its sister circuits
in concluding that the recitation of generic economic principles,
without more, is not enough to plead a duty-of prudence violation.
To be clear, Judge Murguia states, the Panel does not hold that
district courts should not consider allegations reciting general
economic principles. But where general economic principles are
alleged, the complaint must also include context-specific
allegations explaining why an earlier disclosure was so clearly
beneficial that a prudent fiduciary could not conclude that it
would be more likely to harm the fund than help it. Judge Murguia
concludes that the district court did not err in requiring the
same.
Only one case post-Fifth Third has reversed the dismissal of a
duty-of-prudence claim in the ESOP context, Jander v. Ret. Plans
Comm. of IBM, 910 F.3d 620, 632 (2d Cir. 2018). The Plaintiff urges
the Panel to conclude the allegations in the SAC are similarly
sufficient to survive a motion to dismiss. Assuming the allegations
in Jander plausibly alleged a duty-of-prudence claim under Fifth
Third, the SAC in the instant case lacks the pertinent
context-specific allegations that rendered the complaint in Jander
sufficient, Judge Murguia finds.
Although the SAC contains some of the same allegations as the
complaint in Jander, it is devoid of the "particularly important"
allegations that distinguished the allegations in Jander from the
"normal case," Judge Murguia points out. For instance, even
assuming the SAC plausibly alleged the Defendants knew that
disclosure of the ex parte communications was inevitable, the signs
of inevitability alleged in the SAC--including surfacing press
reports and a government investigation--did not begin to surface
until February 2015, after Edison's stock price had peaked.
Therefore, even if the Defendants fully disclosed the ex parte
communications once it appeared "inevitable" that the information
would become public according to the Plaintiff's allegations, it
likely would have been too late to benefit the Plan participants by
mitigating the correction. Accordingly, it is far less likely that
a corrective disclosure was so clearly beneficial at that time that
a prudent fiduciary in the Defendants' positions could not have
concluded that it would be more likely to harm the fund than to
help it.
Moreover, the Plaintiff's contention that a prudent fiduciary in
the Defendants' positions would have made a prompt corrective
disclosure assumes that they had enough information during the
class period to fully disclose the number of ex parte
communications that constituted violations of the CPUC's reporting
rules, which is not clear in light of the confusion surrounding the
application of the reporting rules, Judge Murguia explains.
Therefore, the district court correctly determined that because the
SAC does not allege a "prudent fiduciary could not have concluded
that deferring a disclosure until after the completion of
investigations into the nature of the alleged fraud or the degree
to which the alleged fraud affected the stock price would cause
more harm than good," the Plaintiff's allegations are deficient,
even under Jander. Accordingly, the Plaintiff's proposed
alternative of an early comprehensive disclosure does not satisfy
the "more harm than good" test announced in Fifth Third.
Conclusion
The Ninth Circuit concludes that the district court properly
determined that Plaintiff Wilson failed plausibly to plead that a
prudent fiduciary in the Defendants' position could not have
concluded that the Plaintiff's proposed alternative action of
issuing a corrective disclosure would do more harm than good. The
SAC relies solely on general economic theories and is devoid of
context-specific allegations explaining why an earlier disclosure
was so clearly beneficial that a prudent fiduciary could not
conclude that disclosure would be more likely to harm the fund than
to help it. Therefore, the Plaintiff failed to state a claim for
breach of the duty of prudence consistent with the standard
announced in Fifth Third. As a result, the derivative monitoring
claim alleged against Defendant Craver also fails.
Affirmed.
A full-text copy of the Court's Opinion dated April 19, 2021, is
available at https://tinyurl.com/ekark4xc from Leagle.com.
Samuel E. Bonderoff -- samuel@zamansky.com -- (argued), Zamansky
LLC, in New York City, for Plaintiff-Appellant.
John M. Gildersleeve -- John.Gildersleeve@mto.com -- (argued),
Henry Weissman -- Henry.Weissmann@mto.com -- and Lauren C. Barnett
-- Lauren.Barnett@mto.com -- Munger Tolles & Olson LLP, in Los
Angeles, California, for Defendants-Appellees.
ELNASR FOOD: Faces Garcia Suit Over Failure to Pay Proper Wages
---------------------------------------------------------------
The case, DANIEL VENTURA GARCIA, individually and on behalf of
others similarly situated, Plaintiff v. ELNASR FOOD CORP. (d/b/a
Mama's Pizza), and MONSUR ALMUHEN (a.k.a. Manny), Defendants, Case
No. 1:21-cv-03312 (S.D.N.Y., April 15, 2021) arises from the
Defendants' alleged willful and intentional violations of the Fair
Labor Standards Act and the New York Labor Law.
The Plaintiff was employed by the Defendants from approximately
August 2018 until on or about March 15, 2020 as a porter for his
first two months of employment and then became a cook and a food
preparer.
Throughout his employment with the Defendants, the Plaintiff
regularly worked in excess of 40 hours per week. However, the
Defendants allegedly did not pay him appropriate minimum wage,
spread of hours pay, and overtime compensation as required by
federal and state laws. In addition, the Defendants failed to
maintain accurate payroll records, never granted the Plaintiff any
breaks or meal periods of any kind, did not provide him an accurate
statement of wages, and did not give him any notice of his rate of
pay, employer's regular pay day, and such other information as
required by NYLL, the suit says.
The Plaintiff brings this complaint as a collective action for
himself and other similarly situated employees to recover damages
from the Defendants for the unpaid minimum wage, overtime
compensation, and spread of hours pay, as well as liquidated
damages, pre- and post-judgment interest, litigation costs and
attorneys' fees, and other relief as the Court deems just and
proper.
Elnasr Food Corp. d/b/a Mama's Pizza operates a pizzeria. Monsur
Almuhen (a.k.a. Manny) serves or served as owner, manager,
principal, or agent of the Corporate Defendant. [BN]
The Plaintiff is represented by:
Michael Faillace, Esq.
MICHAEL FAILLACE & ASSOCIATES, P.C.
60 East 42nd Street, Suite 4510
New York, NY 10165
Tel: (212) 317-1200
Fax: (212) 317-1620
EMERGENT BIO: Safirstein Metcalf Reminds of June 18 Deadline
------------------------------------------------------------
Safirstein Metcalf LLP notifies investors that a class action
lawsuit has been filed against Emergent BioSolutions Inc.
("Emergent" or "the Company") (NYSE: EBS) and certain of its
officers, on behalf of shareholders who purchased or otherwise
acquired Emergent securities between July 6, 2020 and March 31,
2021, both dates inclusive (the "Class Period").
If you purchased or acquired Emergent securities and would like
more information, please contact Safirstein Metcalf LLP at
1-800-221-0015, or email info@SafirsteinMetcalf.com.
If you wish to serve as a lead plaintiff, you must move the Court
no later than June 18, 2021. A lead plaintiff is a representative
party acting on behalf of other class members in directing the
litigation. Any member of the putative class may move the Court to
serve as lead plaintiff through counsel of their choice or may
choose to do nothing and remain an absent class member.
This class action seeks to recover damages against Defendants for
alleged violations of the federal securities laws under the
Securities Exchange Act of 1934.
The complaint alleges that throughout the Class Period, Defendants
made materially false and/or misleading statements and failed to
disclose that: (1) Emergent BioSolution's Baltimore plant had a
history of manufacturing issues increasing the likelihood for
massive contaminations; (2) these longstanding contamination risks
and quality control issues at Emergent BioSolution's facility led
to a string of FDA citations; (3) the Company previously had to
discard the equivalent of millions of doses of COVID-19 vaccines
after workers at the Baltimore plant deviated from manufacturing
standards; and (4) as a result of the foregoing, defendants' public
statements about Emergent BioSolution's ability and capacity to
mass manufacture multiple COVID-19 vaccines at its Baltimore
manufacturing site were materially false and/or misleading and/or
lacked a reasonable basis. When the true details entered the
market, the lawsuit claims that investors suffered damages.
About Safirstein Metcalf
Safirstein Metcalf LLP focuses its practice on shareholder rights.
The law firm also practices in the areas of antitrust and consumer
protection. All of the Firm's legal endeavors are rooted in its
core mission: provide investor and consumer protection.
Attorney advertising. Prior results do not guarantee a similar
outcome. [GN]
EMERGENT BIOSOLUTIONS: Labaton Sucharow Reminds of June 8 Deadline
------------------------------------------------------------------
Labaton Sucharow, a national shareholder rights litigation firm,
announces that a securities fraud class action lawsuit has been
filed in the United States District Court for the District of
Maryland against Emergent BioSolutions Inc. (NYSE:EBS) ("Emergent")
on behalf of those who purchased or acquired Emergent common stock
between July 6, 2020 and March 31, 2021, inclusive (the "Class
Period").
Deadline Reminder: Investors who purchased or acquired Emergent
common stock during the Class Period may, no later than June 18,
2021, seek to be appointed as a lead plaintiff representative of
the class. For additional information investors are encouraged to
contact the litigation partner assigned to the matter, David J.
Schwartz via email at david@labaton.com or using the toll-free
number (800) 321-0476.
Emergent is a specialty biopharmaceutical company that develops
vaccines and antibody therapeutics for infectious diseases.
The Class Period commences on July 6, 2020, when Emergent issued a
press release announcing that it had signed a five-year agreement
for large-scale drug substance manufacturing for Johnson &
Johnson's ("J&J") lead COVID-19 vaccine candidate.
The truth about Emergent was revealed on March 31, 2021 after the
close of markets, when The New York Times published an article
reporting on the accidental contamination of COVID-19 vaccines
developed by J&J and AstraZeneca at the Emergent manufacturing
plant in Baltimore. The New York Times article stated that in late
February 2021, employees at Emergent's Baltimore manufacturing
plant inconceivably "mixed up" ingredients of the two different
COVID-19 vaccines, contaminating up to 15 million doses of J&J's
vaccine and forcing regulators to delay authorization of the
plant's production lines. Further, The New York Times article noted
that Emergent's massive vaccine lot contamination went undiscovered
for days until J&J's quality control checks uncovered it, raising
questions about Emergent's failed training and supervision of its
employees during the production process. Following this news,
Emergent's stock price dropped from a close of $92.91 on March 31,
2021, down to a close of $80.46 on April 1, 2021, a drop of over
13%. As more facts unfolded in the media, Emergent's stock price
continued to decline, closing at $78.62 on April 5, 2021.
The complaint alleges that throughout the Class Period, the
defendants failed to disclose that: (1) Emergent's Baltimore plant
had a history of manufacturing issues increasing the likelihood for
massive contaminations; (2) these longstanding contamination risks
and quality control issues at Emergent's facility led to a string
of U.S. Food and Drug Administration citations; (3) Emergent
previously had to discard the equivalent of millions of doses of
COVID-19 vaccines after workers at the Baltimore plant deviated
from manufacturing standards; and (4) as a result of the foregoing,
the defendants' public statements about Emergent's ability and
capacity to mass manufacture multiple COVID-19 vaccines at its
Baltimore manufacturing site were materially false and/or
misleading and/or lacked a reasonable basis.
Emergent investors may, no later than June 18, 2021, seek to be
appointed as a lead plaintiff representative of the class through
Kessler Topaz Meltzer & Check, LLP or other counsel, or may choose
to do nothing and remain an absent class member. A lead plaintiff
is a representative party who acts on behalf of all class members
in directing the litigation. In order to be appointed as a lead
plaintiff, the Court must determine that the class member's claim
is typical of the claims of other class members, and that the class
member will adequately represent the class. Your ability to share
in any recovery is not affected by the decision of whether or not
to serve as a lead plaintiff.
About the Firm
Labaton Sucharow LLP is one of the world's leading complex
litigation firms representing clients in securities, antitrust,
corporate governance and shareholder rights, and consumer
cybersecurity and data privacy litigation. Labaton Sucharow has
been recognized for its excellence by the courts and peers, and it
is consistently ranked in leading industry publications. Offices
are located in New York, NY, Wilmington, DE, and Washington, D.C.
More information about Labaton Sucharow is available at
http://www.labaton.com.
Contact
David J. Schwartz
(800) 321-0476
david@labaton.com[GN]
EPIC GAMES: K.W. Suit Stayed Pending Ruling on Zanca Settlement
---------------------------------------------------------------
In the lawsuit styled K.W., et al., Plaintiffs v. EPIC GAMES, INC.,
Defendant, Case No. 21-cv-00976-CRB (N.D. Cal.), the U.S. District
Court for the Northern District of California grants a limited stay
of the action pending a settlement ruling in a similar case.
Plaintiffs K.W. (a minor) and K.W.'s guardian, Jillian Williams,
are suing Defendant Epic, regarding Epic's practices relating to
in-video game sales to minors and disaffirmance/refund policies
relating to those sales. Epic has moved to stay the case, and to
dismiss the Complaint or compel arbitration.
The motion to stay is based on a North Carolina state court
decision preliminarily approving a class action settlement in a
case against Epic (see Preliminary Approval Order, Zanca, et al. v.
Epic Games, Inc., No. 21-CVS-534 (N.C. Sup. Ct., Wake County). The
parties agree that the proposed settlement, if finally approved,
would settle the Plaintiffs' claims unless they opt out.
The preliminary approval order also purports to enjoin all
settlement class members from commencing, continuing, or
prosecuting "any action or proceeding in any court or tribunal
asserting any of the matters, claims or causes of action that are
to be released upon Final Approval pursuant to the Settlement." A
final approval hearing is set for May 6, 2021.
The Court, therefore, grants a limited stay of the action, for 60
days or until the Zanca court grants or denies final approval of
the proposed settlement--whichever is earlier. The Court has
inherent power to stay proceedings after weighing any relevant
competing interests.
Given that a final decision on the settlement appears to be on the
horizon, the stay will not prejudice the Plaintiffs. The Plaintiffs
have made clear that they oppose the proposed Zanca settlement, but
their challenge to that settlement is properly addressed to the
Zanca court. The Court also declines to assume whether the
Plaintiffs here would opt out of the Zanca settlement if it is
approved.
The parties are ordered to notify the Court when the Zanca court
grants or denies final approval of the proposed settlement. If the
Zanca court does not make such a decision within 60 days from the
date of the Order, the parties are instructed to file a joint
status report.
A full-text copy of the Court's Order dated April 19, 2021, is
available at https://tinyurl.com/tr56puud from Leagle.com.
EXELON CORP: Court Denies Bids to Dismiss Flynn Securities Suit
---------------------------------------------------------------
In the case, JOSHUA FLYNN, Individually and on Behalf of All Others
Similarly Situated Plaintiff v. EXELON CORPORATION, et al.,
Defendants, Case No. 19 C 8209 (N.D. Ill.), Judge Virginia M.
Kendall of the U.S. District Court for the Northern District of
Illinois, Eastern Division, denied the Defendants' Motions to
Dismiss.
The Plaintiff, representing himself and a class of similarly
situated persons, brings claims detailing violations of federal
securities laws against the following individuals and entities:
Exelon and its controlled subsidiary the Commonwealth Edison Co.
("ComEd"); Exelon's CEO Christopher M. Crane; Exelon's Chief
Strategy Officer, William A. Von Hoene, Jr.; Exelon's former CEO of
Exelon Utilities, Anne R. Pramaggiore; and ComEd's CEO, Joseph
Dominguez.
The putative class comprises all purchasers of Exelon common stock
between Feb. 8, 2019 and Oct. 31, 2019 alleging the Defendants made
a series of false and misleading statements that concealed an
eight-year bribery scheme. These false and misleading statements
caused Exelon's common stock to trade at artificially inflated
prices and, when the bribery scheme was uncovered, Exelon's stock
price declined dramatically and investors suffered billions of
dollars in market losses.
All the Defendants now move to dismiss. Defendant Pramaggiore
filed an individual Motion to Dismiss while Defendants Von Hoene,
Crane, Dominguez, Exelon Corporation, and ComEd filed a joint
Motion to Dismiss. However, the arguments across all the
Defendants' motions are essentially the same: That the Plaintiff
failed to plead with the requisite particularity sufficient to
state a claim under federal securities law.
First, the Plaintiff alleges that all the Defendants -- Exelon,
ComEd, Pramaggiore, Dominguez, Crane, and Von Hoene -- violated
Section 10(b) of the Exchange Act and SEC Rule 10b-5 by engaging in
misconduct that artificially inflated the price of Exelon's stock
and maintained the artificially inflated prices, caused the
Plaintiff and the Class Members to purchase the stock at
artificially inflated prices, and then concealed ComEd and Exelon's
true condition from the investing public by making misleading and
false statements. Second, the Plaintiff seeks to hold Exelon,
Crane, Pramaggiore, Von Hoene, and Dominguez individually liable
under Section 20(a) of the Exchange Act as "controlling persons" of
Exelon and ComEd.
I. Whether the Complaint Alleges False Statements with
Particularity Attributable to Defendants
The Defendants argue the Plaintiff failed to attribute the
allegedly false statements to each Defendant with particularity.
Judge Kendall opines that (i) the Plaintiff is clear about the who,
when, why, and where of Von Hoene's allegedly false statement, and
therefore has pled with sufficient particularity; (ii) to the
extent that Defendants wish to dismiss Crane, they have already
admitted that Crane was the maker of one statement; (iii) the
Plaintiff has specifically alleged that Dominguez was the maker of
several false statements, as the Defendants acknowledge; (iv) the
Plaintiff is not bringing claims against Exelon only as the
corporate parent of ComEd, but because Exelon also made allegedly
false and misleading statements; and (v) the Complaint does not
detail how Pramaggiore's statements are misleading and the
Plaintiff does not discuss these statements in his Response.
II. Whether Defendants Were Under a Duty to Disclose
The Defendants collectively argue they were not under a general
duty to disclose. The Plaintiff argues as an initial matter that
Items 105 and 303 of SEC Regulation S-K impose a duty to disclose
any regulatory noncompliance. Item 303, which sets forth
disclosure requirements for Forms 8-K and 10-Q, requires disclosure
of "any known trends or uncertainties that have had or that the
registrant reasonably expects will have a material favorable or
unfavorable impact on net sales or revenues or income from
continuing operations." Item 105 requires disclosure of "the most
significant factors that make an investment in the registrant or
offering speculative or risky."
Judge Kendall denies dismissal for failure to allege a duty to
disclose or for failure to describe how the statements were
misleading. She finds that Exelon's Contributions Guidelines,
published on its website during the class period stated that,
"Political contributions during the reporting period were all made
in accordance with its Corporate Political Contributions
Guidelines" and no contributions were to be made "under any
condition requiring confidentiality" or "in return for any Official
Act." Such statements take the Code of Conduct and Corporate
Guidelines out of the realm of nonactionable aspirational
statements and into the realm of statements regarding the Company's
conduct and implies compliance.
III. Whether the Complaint Adequately Alleges Scienter
The Defendants' last argument is that the Plaintiff has failed to
adequately allege scienter. They first argue the Plaintiff has
conflated the Defendants. They further argue the Plaintiff's
allegations as to scienter fail because they are conclusory and
fail to establish motive.
The Judge opines that the Plaintiff pled a number of circumstances
that give rise to an inference of scienter. The Defendants have
attempted to isolate the pleadings but "courts must consider the
complaint in its entirety" and ask "whether all of the facts
alleged, taken collectively, give rise to a strong inference of
scienter, not whether any individual allegation, scrutinized in
isolation, meets that standard." The Plaintiff's numerous reasons
for scienter presents a cogent and compelling inference of
fraudulent intent. The Judge denies dismissal for failure to plead
scienter.
IV. Section 20(a) Claim
The Defendants arguments to dismiss the Plaintiff's Section 20(a)
claim are predicated on the failure of his Section 10(b) claim. To
state a claim under Section 20(a), a plaintiff must first
adequately plead a primary violation of securities laws, namely a
violation of Section 10(b) and Rule 10b-5.
Since the Plaintiff's Section 10(b) is proceeding, so too may his
Section 20(a) claim, Judge Kendall holds. She says Defendant
Pramaggiore additionally argues that she is not a "controlling
person" within the meaning of Section 20(a); however,
"determination of whether an individual defendant is a `controlling
person' under Section 20(a) is a question of fact that cannot be
determined at the pleading stage."
V. Motion to Strike
The Plaintiff moves to strike certain of the Defendants' arguments
contained in their Reply briefs.
The Judge denies the Plaintiff's Motion to Strike as the
Defendants' Reply briefing did not contain any new, improperly
raised arguments. Although, as the Plaintiff points out, it is
"well-settled that arguments first made in the reply brief are
waived," the arguments that the Plaintiff wishes to strike are
related to arguments raised in the opening Motions to Dismiss. The
Defendants had every right to respond to the Plaintiff's case law
raised in his Response by citing additional law that bolstered
their initial arguments.
Conclusion
Judge Kendall concludes that the Plaintiff has met the heightened
pleading standard for federal securities fraud claims and has
adequately alleged a violation of Section 10(b) of the Exchange Act
and SEC Rule 10b-5, as well as Section 20(a) of the Exchange Act.
Therefore, the Motions to Dismiss are largely denied. However, the
Judge also concludes that the Plaintiff's allegations regarding
Pramaggiore's statements during the August 2019 conference call do
not satisfy the requirements of the PSLRA and therefore these
claims are dismissed. The Motion to Strike is denied because the
Defendants' Reply briefing was appropriate.
A full-text copy of the Court's April 21, 2021 Memorandum Opinion &
Order is available at https://tinyurl.com/f64j2ps from Leagle.com.
FACEBOOK INC: Faces Irish Class Action Suit Over Leaked Data
------------------------------------------------------------
Adrian Weckler at independent.ie reports that more than 7,000
people have signed up for a mass action lawsuit in Irish courts
against Facebook. The case, organised by Digital Rights Ireland, is
over a global data leak that exposed the mobile phone numbers of
530 million people.
People are really upset about this, not least because Facebook
doesn't appear to be taking it seriously. There are at least 1.3m
Irish numbers alone, matched perfectly against full names and, in
many cases, occupation or location.
The least that we can expect is a new wave of scam texts or
Whatsapps. But for a few thousand people, it could be a lot more
serious. The names and numbers of gardai, sitting judges, prison
officers and others in sensitive positions are among the numbers
leaked.
As are roles such as management positions in womens' refuges and
other places that could be prone to harassing or predatory contact.
All are easily searchable.
In this podcast, Adrian talks to the director of Digital Rights
Ireland, Antoin O'Lachtnain, about the leak and the case.
Digital Rights Ireland is taking the Irish court action under
European GDPR rules and says that an award of between €300 and
€12,000 in damages is "comparable" to what might occur in its
Facebook case.
Former Facebook worker Carey Lening, who now works on privacy and
security issues with Castlebridge, also joins the podcast to talk
about her experience and where we go from here. [GN]
FALCO'S PIZZA: Frausto-Gutierrez et al. Sue Over Failure to Pay OT
------------------------------------------------------------------
GERARDO FRAUSTO-GUTIERREZ, an individual, and JONATHAN SAAVEDRA, an
individual, on behalf of themselves and all other Plaintiffs
similarly situated, known and unknown, Plaintiffs v. FALCO'S PIZZA,
INC., an Illinois corporation, and MICHAEL FALCO, an individual,
Defendants, Case No. 1:21-cv-02013 (N.D. Ill., April 14, 2021) is a
collective action complaint brought against the Defendants for
their alleged violations of the Fair Labor Standards Act and the
Illinois Minimum Wage Law.
The Plaintiffs were former employees of the Defendants. Plaintiff
Gerardo Frausto-Gutierrez worked as a cook, food preparer, and
kitchen staff employee at the Defendants' restaurant from
approximately September 2016 through February 15, 2020, while
Plaintiff Jonathan Saavedra performed his duties as a counter
worker, food preparer, and food delivery driver from approximately
December 2016 through mid-May 2020.
The Plaintiffs allege the Defendants of violating the FLSA and IMWL
by failing to pay them and other non-exempt cooks, food preparers,
kitchen staff, counter workers and food delivery employees their
lawfully earned overtime compensation at the rate of one and
one-half times their regular rates of pay for hours they worked in
excess of 40 in individual work weeks. The Defendants also failed
to create, maintain, and preserve complete and accurate payroll
records of their employees, the Plaintiffs add.
Falco's Pizza, Inc. operates a restaurant owned by Michael Falco.
[BN]
The Plaintiffs are represented by:
Timothy M. Nolan, Esq.
NOLAN LAW OFFICE
53 W. Jackson Blvd., Ste. 1137
Chicago, IL 60604
Tel: (312) 322-1100
E-mail: tnolan@nolanwagelaw.com
FEDEX GROUND: Court Denies Leave to File Amended Roy FLSA Complaint
-------------------------------------------------------------------
In the case, JORDAN ROY and JUSTIN TRUMBULL, on behalf of
themselves and others similarly situated, Plaintiffs v. FEDEX
GROUND PACKAGE SYSTEMS, INC., Defendant, Case No. 3:17-cv-30116-KAR
(D. Mass.), Judge Katherine A. Robertson of the U.S. District Court
for the District of Massachusetts denied remaining named Plaintiffs
Roy and Trumbull's motion for leave to file an amended complaint
adding a class action claim for violation of the Massachusetts
overtime statute.
In August 2017, Roy, Trumbull, and Angel Sullivan-Blake brought a
proposed nationwide collective action against FedEx as their
purported employer, alleging that FedEx failed to pay overtime
wages to its delivery drivers in violation of the Fair Labor
Standards Act ("FLSA"), 29 U.S.C. Section 201 et seq. Each named
Plaintiff asserted a single claim against FedEx for unpaid overtime
in violation of Section 207(a)(1) of the FLSA.
The Court granted FedEx's motion to dismiss the complaint for lack
of personal jurisdiction over Sullivan-Blake, and denied the motion
as to Roy and Trumbull, who delivered FedEx packages in
Massachusetts. FedEx answered the complaint on June 19, 2018.
On Nov. 27, 2018, the Court determined that it lacked personal
jurisdiction over non-Massachusetts drivers, but conditionally
certified a collective of similarly situated drivers who delivered
packaged for FedEx and who were employed by Independent Service
Providers ("ISP"), drove vehicles with a gross vehicle weight
rating under 10,001 pounds, and delivered FedEx packages in
Massachusetts after Feb. 19, 2015.
The Plaintiffs were directed to issue the notice and opt-in consent
form by no later than the close of business on July 22, 2019. On
that date, the Plaintiffs informed the Court that they had issued
the notice and that the opt-in period would expire on Sept. 20,
2019.
From July 29, 2019 through Nov. 13, 2019, the Plaintiffs filed
opt-in consent forms with the court and identified opt-in
Plaintiffs who had withdrawn. A total of approximately 544
Plaintiffs opted in.
On Jan. 3, 2020, the Court ordered that a written questionnaire the
contents of which had been agreed to by the parties be served on
fifty opt-in Plaintiffs designated by FedEx. On Jan. 22, 2020, it
adopted the parties' joint proposal, which provided that the 50
questionnaires would be completed by May 29, 2020. Thereafter, the
discovery schedule was revised to permit the Plaintiffs to submit
the completed questionnaires by July 31, 2020.
On Sept. 14, 2020, the parties jointly requested an extension of
time to Oct. 14, 2020 to enable the Plaintiffs to obtain completed
questionnaires. In addition, they notified the Court that 15
opt-ins originally selected by FedEx either could not be located or
intended to opt out and, therefore, FedEx would select fifteen
replacement opt-ins to respond to the questionnaire. The parties
anticipated that the discovery from the existing and the
replacement group could be completed by Dec. 11, 2020. The Court
adopted the parties' revised discovery schedule.
On Dec. 29, 2020, the Court granted the parties' request for a
further extension of time to Jan. 11, 2021 for submission of either
a joint proposal or competing proposals for the completion of
discovery related to certification of the collective. The parties
submitted their respective proposals to the court on Jan. 13, 2021.
On March 3, 2021, FedEx reported that it had not yet received
completed questionnaires from all fifty opt-ins (including the 15
replacements) that it had selected for purposes of responding to
written discovery requests.
On Jan. 13, 2021, the Plaintiffs moved for leave to file an amended
complaint adding Thomas Davis as a class representative for a Fed.
R. Civ. P. 23 class action claim against FedEx for failing to pay
overtime as required by the Massachusetts overtime statute, Mass.
Gen. Laws ch. 151, Section 1A. FedEx opposes the motion to amend.
Judge Robertson holds that the Plaintiffs have not shown a valid
reason for their delay in moving for leave to amend their
complaint. Although Rule 15(a) does not prescribe a particular
time limit for a motion to amend, it is well established that such
a motion should be made as soon as the necessity for altering the
pleading becomes apparent.
To the extent the Plaintiffs desired to assert state law claims for
overtime compensation on behalf of drivers delivering for FedEx, it
was apparent as of Nov. 27, 2018, when the Court limited the FLSA
collective action to Massachusetts delivery drivers, that this
lawsuit would be an appropriate vehicle for claims brought pursuant
to Mass. Gen. Laws ch. 151, Section 1A. For reasons that remain
unexplained, the Plaintiffs waited for well over two years, until
Jan. 13, 2021, to move for leave to assert state law claims. The
Judge agrees that allowing the Plaintiff's proposed amendment at
this time would complicate and delay resolution of a case that was
filed in 2017 and has been delayed, most recently, by the failure
of a number of opt-in Plaintiffs to respond to FedEx's written
discovery requests.
Even if the Plaintiffs' knowledge of the precise scope of the
collective was not established until the close of the opt-in period
on September or November 2019, the Judge holds that the Plaintiffs
still waited some fourteen to sixteen months to move for leave to
add a stat class action claim and offered no explanation for the
delay.
In light of the foregoing, Judge Robertson concludes that the
Plaintiffs' unexcused and significant delay in moving for leave to
amend the complaint, standing alone, provides a sufficient ground
to deny their motion for leave to amend the complaint. Therefore,
he denied the Plaintiffs' motion for leave to file an amended
complaint.
A full-text copy of the Court's April 21, 2021 Memorandum & Order
is available at https://tinyurl.com/hvys8u2w from Leagle.com.
FIBROGEN INC: Faruqi & Faruqi Reminds of June 11 Deadline
---------------------------------------------------------
Faruqi & Faruqi, LLP, a leading national securities law firm, is
investigating potential claims against FibroGen, Inc. ("FibroGen"
or the "Company") (NASDAQ:FGEN) and reminds investors of the June
11, 2021 deadline to seek the role of lead plaintiff in a federal
securities class action that has been filed against the Company.
If you suffered losses exceeding $50,000 investing in FibroGen
stock or options between November 8, 2019 and April 6, 2021 and
would like to discuss your legal rights, call Faruqi & Faruqi
partner Josh Wilson directly at 877-247-4292 or 212-983-9330 (Ext.
1310). You may also click here for additional information:
www.faruqilaw.com/FGEN.
To view an enhanced version of this graphic, please visit:
https://orders.newsfilecorp.com/files/6455/81680_9c9bec414484686a_001full.jpg
There is no cost or obligation to you.
To view an enhanced version of this graphic, please visit:
https://orders.newsfilecorp.com/files/6455/81680_9c9bec414484686a_002full.jpg
Faruqi & Faruqi is a leading minority and Woman-owned national
securities law firm with offices in New York, Delaware,
Pennsylvania, California and Georgia.
As detailed below, the lawsuit focuses on whether the Company and
its executives violated federal securities laws by making false
and/or misleading statements and/or failing to disclose that: (1)
that the Company's prior disclosures of U.S. primary cardiovascular
safety analyses from the roxadustat Phase 3 program for the
treatment of anemia certain safety analyses submitted in connection
with CKD included post-hoc changes to the stratification factors;
(2) that FibroGen's analyses with the pre-specified stratification
factors result in higher hazard ratios (point estimates of relative
risk) and 95% confidence intervals; (3) that, based on these
analyses the Company could not conclude that roxadustat reduces the
risk of (or is superior to) MACE+ in dialysis, and MACE and MACE+
in incident dialysis compared to epoetin-alfa; (4) that, as a
result, the Company faced significant uncertainty that its NDA for
roxadustat as a treatment for anemia of CKD would be approved by
the FDA; and (5) that, as a result of the foregoing, Defendants'
statements about the Company's business, operations, and prospects
were materially misleading and/or lacked a reasonable basis.
On April 6, 2021, after the market closed, FibroGen issued a
statement "provid[ing] clarification of certain prior disclosures
of U.S. primary cardiovascular safety analyses from the roxadustat
Phase 3 program for the treatment of anemia of chronic kidney
disease ('CKD')." Specifically, the Company stated that the safety
analyses "included post-hoc changes to the stratification factors."
FibroGen further revealed that, based on analyses using the
pre-specified stratification factors, the Company "cannot conclude
that roxadustat reduces the risk of (or is superior to) MACE+ in
dialysis, and MACE and MACE+ in incident dialysis compared to
epoetin-alfa."
On this news, the Company's share price fell $14.90, or 43%, to
close at $19.74 per share on April 7, 2021, on heavy volume. Shares
continued to fall on April 8, 2021, to close at $18.81 per share (a
decline of $0.93 per share or 4.7%), on heavy volume.
The court-appointed lead plaintiff is the investor with the largest
financial interest in the relief sought by the class who is
adequate and typical of class members who directs and oversees the
litigation on behalf of the putative class. Any member of the
putative class may move the Court to serve as lead plaintiff
through counsel of their choice, or may choose to do nothing and
remain an absent class member. Your ability to share in any
recovery is not affected by the decision to serve as a lead
plaintiff or not.
Faruqi & Faruqi, LLP also encourages anyone with information
regarding FibroGen's conduct to contact the firm, including
whistleblowers, former employees, shareholders and others.
Attorney Advertising. The law firm responsible for this
advertisement is Faruqi & Faruqi, LLP (www.faruqilaw.com). Prior
results do not guarantee or predict a similar outcome with respect
to any future matter. We welcome the opportunity to discuss your
particular case. All communications will be treated in a
confidential manner. [GN]
FIBROGEN INC: Frank R. Cruz Reminds of June 11 Deadline
-------------------------------------------------------
The Law Offices of Frank R. Cruz reminds investors that a class
action lawsuit has been filed on behalf of shareholders of FibroGen
Inc. Investors have until the deadline listed below to file a lead
plaintiff motion.
Investors suffering losses on their investments are encouraged to
contact The Law Offices of Frank R. Cruz to discuss their legal
rights in the class action at 310-914-5007 or by email to
fcruz@frankcruzlaw.com.
FibroGen Inc. (NASDAQ: FGEN)
Class Period: November 8, 2019 - April 6, 2021
Lead Plaintiff Deadline: June 11, 2021
Shareholders with $100,000 losses or more are encouraged to contact
the firm
The complaint filed in this class action alleges that throughout
the Class Period, Defendants made materially false and/or
misleading statements, as well as failed to disclose material
adverse facts about the Company's business, operations, and
prospects. Specifically, Defendants failed to disclose to
investors: (1) that certain safety analyses submitted in connection
with FibroGen's NDA for roxadustat included post-hoc changes to
stratification factors; (2) that, based on analyses using the
pre-specified stratification factors, the Company could not
conclude that roxadustat reduces the risk of major adverse
cardiovascular events compared to epoetin-alfa; (3) that, as a
result, the Company faced significant uncertainty that its NDA for
roxadustat as a treatment for anemia of CKD would be approved by
the FDA; and (4) as a result, Defendants' statements about its
business, operations, and prospects were materially false and
misleading and/or lacked reasonable basis at all relevant times.
Follow us for updates on Twitter: twitter.com/FRC_LAW.
To be a member of these class actions, you need not take any action
at this time; you may retain counsel of your choice or take no
action and remain an absent member of the class action. If you wish
to learn more about these class actions, or if you have any
questions concerning this announcement or your rights or interests
with respect to these matters, please contact Frank R. Cruz, of The
Law Offices of Frank R. Cruz, 1999 Avenue of the Stars, Suite 1100,
Los Angeles, California 90067 at 310-914-5007, by email to
info@frankcruzlaw.com, or visit our website at
www.frankcruzlaw.com. If you inquire by email please include your
mailing address, telephone number, and number of shares purchased.
This press release may be considered Attorney Advertising in some
jurisdictions under the applicable law and ethical rules. [GN]
GENERAL MILLS: Faces Suit Over Products' "Phthalates" Component
---------------------------------------------------------------
Steven Lavalle, individually and on behalf of all others similarly
situated, v. General Mills Inc., Case No. 7:21-cv-03103 (S.D.N.Y.,
April 9, 2021) arises from the Defendant's deceptive and misleading
business practices regarding the marketing and sales of several
products throughout the country.
These products are:
* Shells & White Cheddar Mac & Cheese
* Organic Shells & White Cheddar Mac & Cheese
* Classic Cheddar Mac & Cheese
* Organic Classic Cheddar Mac & Cheese
* Shells & Real Aged Cheddar Mac & Cheese
* Organic Shells & Real Aged Cheddar Mac & Cheese
* Organic Macaroni & Cheese Classic Cheddar Cheese with 12g
Protein
* Gluten Free Rice Pasta & Cheddar Mac
* Rice Pasta Shells & White Cheddar
* Red Lentil Spirals & White Cheddar
* Organic Shells & White Cheddar Mac & Cheese with Whole Grains
* Organic Farm Friends & Cheddar Mac & Cheese
* Organic Grass Fed Shells & White Cheddar Mac & Cheese
* Organic Grass Fed Shells & Real Aged Cheddar Mac & Cheese
* Organic Mac & Bees Mac & Cheese; Mac & Trees Mac & Cheese
* Quinoa Rice Pasta & White Cheddar
* Reduced Sodium Mac & Cheese
* Organic Peace Pasta & Parmesan Mac & Cheese
* Spirals With Butter & Parmesan
* Organic Alfredo Shells & Cheddar Mac & Cheese
* Penne & Four Cheese Mac & Cheese
* Bunny Pasta with Yummy Cheese Mac & Cheese
* Organic Grass Fed Classic Cheddar Mac & Cheese
The suit says that the Defendant fails to disclose on the Products'
packaging and labels that the Products contain "ortho-phthalates,"
also known as "phthalates". Phthalates are dangerous and harmful
chemicals when consumed, especially by pregnant women and
children.
General Mills, Inc. manufactures and markets branded and packaged
consumer foods worldwide. The Company also supplies branded and
unbranded food products to the foodservice and commercial baking
industries.[BN]
The Plaintiff is represented by:
Jason P. Sultzer, Esq.
Joseph Lipari, Esq.
Daniel Markowitz, Esq.
THE SULTZER LAW GROUP P.C.
270 Madison Avenue, Suite 1800
New York, NY 10016
Telephone: (845) 483-7100
Facsimile: (888) 749-7747
E-mail: sultzerj@thesultzerlawgroup.com
liparij@thesultzerlawgroup.com
markowitzd@thesultzerlawgroup.com
- and -
Charles E. Schaffer, Esq.
David C. Magagna Jr., Esq.
Levin Sedran & Berman LLP
510 Walnut Street, Suite 500
Philadelphia, PA 19106-3697
Telephone: (215) 592-1500
Facsimile: (215) 592-4663
E-mail: CSchaffer@lfsblaw.com
dmagagna@lfsblaw.com
GOGO INC: Shareholder Class Action Survives Motion to Dismiss
-------------------------------------------------------------
Johnson Fistel, LLP is investigating potential claims on behalf of
Gogo Inc. (the "Company" or "Gogo") (NASDAQ: GOGO) against certain
of its officers. On April 26, 2021, Judge Jorge L. Alonso denied a
motion to dismiss a class action lawsuit pending in the United
States District Court for the Northern District of Illinois against
Gogo and certain of its officers.
According to the lawsuit, between February 27, 2017 through May 7,
2018, defendants -- Gogo and several of its executives -- made
certain false and misleading public statements about the
reliability of Gogo's in-flight internet connectivity services and
its impact on Gogo's financial picture. Specifically, the class
action lawsuit alleges that Gogo installed its new "2Ku"
antenna-and-satellite-based in-flight wifi systems on numerous
partner airplanes before and during the class period despite,
according to the class action complaint, that defendants knew that
the 2Ku systems sometimes did not work after the airplanes had been
sprayed with deicing fluid. Thus, the class action lawsuit
alleges, defendants knew that Gogo would be unable to hit its
service availability targets during periods of winter weather
unless it made costly modifications to its 2Ku systems, which would
hurt the company's financial performance. The deicing issue,
according to the class action lawsuit, was concealed by defendants
from investors for months, and even after disclosing it in February
2018, according to the class action lawsuit, defendants still
concealed the seriousness of the issue. It was not until May 2018,
according to the class action lawsuit, that Gogo's new CEO finally
disclosed the extent of the problem. According to the class action
lawsuit, the May 2018 disclosure caused Gogo's allegedly
artificially inflated stock price to plummet, damaging investors.
If you are a current, long-term shareholder of Gogo holding shares
since before February 27, 2017, you may have standing to hold Gogo
harmless from the alleged harm caused by the Company's executives
by making them personally responsible. You may also be able to
assist in reforming the Company's corporate governance to prevent
future wrongdoing.
If you are interested in learning more about the investigation,
please contact lead analyst Jim Baker (jimb@johnsonfistel.com) at
619-814-4471. If emailing, please include a phone number.
Additionally, if you have continuously owned Gogo's shares since
before February 27, 2017, you can [Click here to join this action].
There is no cost or obligation to you.
About Johnson Fistel
Johnson Fistel, LLP is a nationally recognized shareholder rights
law firm with offices in California, New York and Georgia. The firm
represents individual and institutional investors in shareholder
derivative and securities class action lawsuits. For more
information about the firm and its attorneys, please visit
http://www.johnsonfistel.com.Attorney advertising. Past results do
not guarantee future outcomes.
Contact:
Johnson Fistel, LLP
Jim Baker, 619-814-4471
jimb@johnsonfistel.com [GN]
GOOGLE LLC: Battles GBP3-B UK Data Breach Class Action Lawsuit
--------------------------------------------------------------
Google (GOOGL) maintains that a multi-billion pound lawsuit which
alleges that it tracked millions of Apple (AAPL) iPhone users, is
not viable, and thus should not proceed. The company's lawyer
Antony White told the Supreme Court that the lawsuit could only
seek compensation under English laws if claimants suffered damages
as a result of the data breach, reports Reuters.
Richard Lloyd, a former director of the consumer rights group
Which?, is leading the landmark claim against the tech giant.
According to Reuters, the lawsuit seeks to ascertain the kind of
damages that could be recovered for data breaches and whether a
class action would be the correct avenue to pursue. Lloyd and his
team are pushing for a redress of more than GBP3 billion should the
trial succeed. The class-action lawsuit focuses on more than five
million people who used iPhones between 2011 and 2012.
"Google makes billions of pounds in revenue from advertising based
on our personal data every year," Lloyd said in a statement. "It is
only right that they should be held to account for profiting from
the misuse of that personal data." (See Alphabet stock analysis on
TipRanks).
The outcome of the lawsuit could have severe ramifications on other
tech giants. Facebook (FB), TikTok, and YouTube are some of the
other companies that could be hit with similar data protection
claims.
Alphabet's solid first-quarter financial results has caught the
attention of Monness Crespi Hardt analyst Brian White. According to
the analyst, the company is well-positioned to capitalize on the
digital ad rebound.
White stated, "We believe Alphabet is well positioned for a
continued recovery in digital ad spending in 2021; however, we
anticipate antitrust investigations to carry on with great
fanfare."
The analyst has reiterated a Buy rating on the stock with a $3,000
price target implying 27.17% upside potential to current levels.
Wall Street is optimistic about Alphabet's prospects. Consensus
among analysts is a Strong Buy based on 35 Buy ratings and 1 Hold
recommendation. The average analyst price target of $2,700.23
implies 14.5% upside potential to current levels.
GOOGL scores a 9 out of 10 on TipRanks' Smart Score rating system,
implying its performance is likely to outperform market
expectations. [GN]
GOOGLE LLC: Blocking Class Action Would Deny Justice, UK Court Says
-------------------------------------------------------------------
Kirstin Ridley at Reuters reports that blocking a proposed British
class action against Google, that alleges it secretly tracked
millions of iPhone users a decade ago, risks allowing big firms to
behave with impunity, a lawyer told the Supreme Court.
Hugh Tomlinson, a lawyer for former consumer rights champion and
class representative Richard Lloyd, told senior judges that
although the case was "novel and innovative", it was an appropriate
way to ensure access to justice and compensation.
"If we are wrong about this, there is no civil remedy," Tomlinson
told the final day of a two-day hearing, adding that pursuing
Google with a U.S.-style class action was the only way to attract
the necessary commercial funding for a claim.
A lawyer for Google has said the case is not viable, arguing in
part that English law only offers redress for data breaches if
claimants can be shown to suffer damage.
Lloyd, a former director of consumer rights group Which?, alleges
Google breached its duties as a data controller between 2011 and
2012 and is seeking damages on behalf of more than four million
Apple iPhone users, who he says could be owned more than 3 billion
pounds ($4.2 billion) if a trial succeeds.
Google, which makes billions of pounds in revenue from advertising,
illegally took iPhone users' personal data by tracking internet
browsing histories and used this to sell a lucrative, targeted
advertising service, Lloyd alleges.
Tomlinson said that while individual compensation from a class
action, which automatically binds a defined group into a lawsuit
unless people opt out, could be very small, there was a fundamental
value to accessing justice and to providing redress.
The case has been called "ground-breaking" and "hugely significant"
by lawyers, who say it will trigger copycat claims if businesses
are not fair or transparent when harvesting and using troves of
personal data for commercial gain.
Claims against Facebook, TikTok, YouTube and hotels operator
Marriott are among those awaiting the Supreme Court judgment.
A judgment in the case, which hinges on the definition of damage in
English law, whether a class action is appropriate and whether the
planned lawsuit can proceed against an overseas party, is expected
in the next 12 months.
Britain's class action regime is currently limited to competition
claims. [GN]
GOOGLE LLC: Unite With Tech Rivals to Try to Block GBP750-M Claim
-----------------------------------------------------------------
Helen Cahill at Financial Mail reports that Google will join forces
with tech rivals to try to block a GBP750million claim that could
trigger a raft of class action cases against social media giants.
The company will appear in the Supreme Court to argue that former
Which? director Richard Lloyd should not be allowed to sue it for
allegedly illegally tracking the internet habits of 4.4 million
iPhone users in 2011 and 2012. Facebook, YouTube and TikTok are
facing similar court cases over the alleged misuse of personal
data.
Lloyd launched a class action case against Google in 2017 in an
attempt to win damages for every iPhone user allegedly affected. He
claims Google bypassed privacy settings to track users' internet
histories.
Google has tried to stop the case by arguing that each iPhone user
should have to bring an individual claim. Google succeeded in the
High Court, but the Court of Appeal allowed the case to go forward.
The company has now drafted in powerful tech lobbyists that also
represent companies including Facebook and Twitter. The court will
hear statements from both Tech UK and the Internet Association - an
influential group working for the tech giants in Washington.
Lloyd's team will be supported by statements from UK data regulator
the Information Commissioner and charities that promote children's
rights and access to justice.
'I've rarely seen such a big opportunity to hold one of the world's
most powerful companies to account,' said Lloyd. 'The law is there
to stop businesses misusing millions of consumers' personal data,
but we need the means to exercise our legal rights.'
Tech giants face paying out hundreds of millions of pounds in
damages in similar claims if the Supreme Court allows class action
cases to go ahead. There are at least five class action cases
resting on the judgment. Facebook faces two cases over its
Cambridge Analytica data scandal in 2015. Lawyers have also filed
cases against YouTube, TikTok and Marriott hotels.
Emily Cox, head of media disputes at Stewarts law firm, said: 'We
don't have a class action system in the UK like there is in the US.
People have to issue their own claim. This situation is exciting
because it might change that.'
A Google spokesman said: 'These claims relate to events that took
place a decade ago and that we addressed at the time. We look
forward to making our case in court.'
It comes after the owner of The Mail launched a legal action
against Google over claims it exploits its dominance in digital
advertising. The parent company of MailOnline and DailyMail.com
said the tech giant 'manipulates' search results to 'punish
publishers'. Google called the claims 'completely inaccurate'. [GN]
GOVERNMENT EMPLOYEES: Data Breach Leads to Class-Action Lawsuit
---------------------------------------------------------------
Chris Collier at glassbytes.com reports that Plaintiffs Alexander
Mirvis, Betty Butler and Lainie Froehlich filed a class action
complaint against defendant Geico over a recent data breach that
compromised the Social Security numbers, addresses, credit card
numbers and driver's license numbers of current and former
customers. The complaint, which was filed with U.S. District Court
Eastern District of New York on April 21, alleges that Government
Employees Insurance Company (Geico) and its parent company,
Berkshire Hathaway Inc., failed to shield personal customer data
from cybercriminals and that the breach could have been avoided
through security measures, training and authentications.
According to information provided in the complaint, Geico announced
by letter on or about April 9, 2021, that cybercriminals obtained
sensitive customer information through the company's online sales
system between November 24, 2020 and March 1, 2021. Mirvis, Butler
and Froehlich allege that, as a result, their identities have
already been used to file for erroneous unemployment claims and to
obtain credit cards. [GN]
GOWIRELESS INC: Tsiros et al. Sue Over Store Managers' Unpaid OT
----------------------------------------------------------------
ELENI TSIROS and CHEYENNE CHENAULT, on their own behalf and others
similarly situated, Plaintiffs v. GOWIRELESS, INC., Defendant, Case
No. CACE-21-007618 (Fla. 17th Jud. Cir. Ct., April 15, 2021) is a
collective action complaint brought against the Defendant for its
alleged violation of the Fair Labor Standards Act.
The Plaintiffs were employed by the Defendant as hourly-paid
non-exempt Store Managers.
The Plaintiffs contend that they and similarly situated Store
Managers consistently worked overtime hours off the clock while
communicating on the GroupMe application, responding to text
messages and phone calls while at home or otherwise away from the
store, and participating in conference calls. However, the
Defendant allegedly did not compensate them for the overtime hours
they worked at the rate of one and one-half times their regular
rates of pay for the full extent of the hours they worked over 40
during said work weeks.
According to the complaint, the Plaintiffs and other similarly
situated Store Managers have suffered damages as a result of the
Defendant's willful violation of the FLSA. Thus, the Plaintiffs
seek to recover damages from the Defendant, that includes all
unpaid overtime compensation, liquidated damages, pre-judgment
interest, attorneys' fees and costs, and other relief as the Court
deems just and proper.
GoWireless, Inc. operates Verizon Wireless-branded stores across
the U.S., including in Broward County, Florida. [BN]
The Plaintiffs are represented by:
Gregg I. Shavitz, Esq.
Camar R. Jones, Esq.
SHAVITZ LAW GROUP, P.A.
951 Yamato Road, Suite 285
Boca Raton, FL 33432
Tel: (561) 447-8888
Fax: (561) 447-8831
E-mail: gshavitz@shavitzlaw.com
cjones@shavitzlaw.com
GRUBHUB INC: Settlement on Nonpartner Restaurants Implausible
-------------------------------------------------------------
Joe Guszkowski at restaurantbusinessonline.com reports that
Grubhub's proposed settlement in a class-action lawsuit related to
nonpartner restaurants doesn't go far enough, says a member of the
class that would be impacted by the settlement.
An attorney representing The Farmer's Wife, the plaintiff in a
related class action, plans to file an objection to the settlement,
saying it does not adequately address the claims of his client's
class and could impede their ability to get relief in the future.
"What's concerning is that it's allowing Grubhub to continue using
other people's trademarks without authorization," said Geoff
Munroe, an attorney with Gibbs Law Group in Oakland, Calif.
The two claims are related to Grubhub's practices around nonpartner
restaurants -- those with which it doesn't have an explicit service
agreement. But one is more limited than the other, and a settlement
in that case would impact both.
The narrower of the two was filed last May in Colorado on behalf of
CO Craft LLC, dba Freshcraft, a bar and restaurant in Denver. That
suit accused the delivery company of false advertising, and
represented a proposed class of any nonpartner restaurant that
Grubhub falsely listed as closed or not accepting online orders.
The second and broader suit was filed in October 2020 in Illinois
on behalf of The Farmer's Wife, a restaurant in Sebastopol, Calif.
It takes issue with the practice of adding nonpartner restaurants
altogether, alleging that Grubhub is violating federal trademark
law by using restaurants' names and logos without their permission.
The class in that suit extends to 150,000 nonpartner restaurants.
The source of the current conflict began in January, when
Freshcraft filed to have The Farmer's Wife class rolled into its
own. Grubhub moved to stay the Illinois case the same day, saying
it was redundant with the Freshcraft case.
In a filing, The Farmer's Wife said that Grubhub and Freshcraft had
already been discussing a settlement for months at that point, and
that its claims about trademarks "were unlikely to have been
adequately represented in those negotiations."
Grubhub and Freshcraft said in a filing that they had agreed in
principle on a settlement that would create an online portal where
restaurants could claim and update their listings or request that
they be removed. It would also prohibit language stating that a
restaurant is "not accepting online orders."
But the settlement falls short of addressing the needs of the
combined class, Munroe said, and would also limit members' ability
to get further relief down the road.
"We think the settlement is just so unfair on its face, and if you
look at what restaurants are saying, how it will affect them, it
doesn't address their concerns about names and logos," he said.
A Grubhub spokesperson reiterated the company's stance after the
proposal was filed: "We believe the proposed settlement addresses
the concerns raised, including making it easier for restaurants to
claim their menu or be removed from our platform if they wish to do
so. We look forward to the judge's approval of this settlement."
Munroe said he has talked to restaurants that have had a hard time
getting Grubhub to remove their listings in the past. Some have
even had listings taken down only to reappear a few months later,
he said.
The listings sometimes include menu items that the restaurant isn't
serving or has never served, which can harm the customer experience
and the restaurant's reputation.
Foraged Hyperseasonal Eatery in Baltimore, for instance, was added
to Grubhub's platform early last year, unbeknownst to owner Chris
Amendola. When a Grubhub driver showed up with an order for items
Foraged wasn't currently carrying, Amendola ended up preparing
something anyway and delivering it himself, so as not to upset the
guest, a regular customer.
He then called Grubhub to ask them to remove Foraged from their
marketplace. He was told to fill out a form and mail it in, and
that his restaurant would be removed 30 days after that. Amendola
ultimately threatened legal action if the page was not removed
immediately, and Grubhub took it down.
"You talk to a lot of these restaurants, and what they want most is
just for it to stop," Munroe said. His hope is that the court will
deny approval of the proposed settlement, or at least hold a
hearing to learn more.
Adding restaurants without an explicit agreement is a common
practice for third-party delivery companies seeking to expand their
selection, and it is legal everywhere but California, which banned
the practice starting this year. Grubhub has said that it only
started adding nonpartner restaurants in 2019 to keep up with its
competitors. [GN]
HAIFA BAY, ISRAEL: Faces Suit for Bodily Injury Due to Pollution
----------------------------------------------------------------
The Citizens for the Environment, a non-profit organisation, filed
a claim and a motion to certify the claim as a class action against
30 plants in the Haifa Bay region, arguing that the plants polluted
the environment and caused bodily injuries to the class members who
were exposed to the hazardous materials which the plants
emitted.(1)
Facts
The Haifa Bay area has lots of business activity, including
industrial plants engaged in the chemical, petrochemical and energy
industries (conducting activities such as storage and transport),
which allegedly emit various materials - including contaminating
and hazardous substances - into the air.
In recent decades, the authorities' supervisory powers and relevant
legislation have been enhanced by laws and regulations against
pollution which may cause interference or damage to humans in the
surrounding areas. In 2008 the Clean Air Law was passed, imposing
limitations on contaminating activities, licensing duties and the
monitoring of air quality. In addition, public struggles against
these pollutant plants have put pressure on the authorities'
decisions and the creation of strategies prepared to limit the
Haifa Bay's contamination.
The claimants held that researchers have shown that in the Haifa
region, the rate of sickness due to cancer (lung cancer and
non-Hodgkin lymphoma) is higher than the national average. For
example, in the years 2001 to 2005, Haifa's lung cancer rate was
22% higher than the national average. A similar increase was found
with regard to non-Hodgkin lymphoma during the same period. It was
alleged that there is a causal connection between hazardous
materials emitted to the air and the high sickness rate. The
claimants held that the respondents had breached the law and
exceeded the emission quantities set by the regulations, causing
bodily injuries to many Haifa residents. The claimants argued that
this behaviour constituted the tort of negligence and a breach of
statutory duty.
Motion to strike out in limine - parties' arguments
The respondents submitted a motion to strike out the claim in
limine. They argued that it was impossible to handle a claim for
bodily injuries caused by environmental pollution in a class action
procedure.
According to the respondents, a claim of bodily injury due to air
contamination should not be dealt with as a class action because
most of the factual and legal issues which are raised are
particular and not common to all of the class members. Each injured
person will have to prove liability, the actual damage caused and
the potential and specific causal connection between the actions of
a specific plant to the alleged damage.
Decision
The court declined the motion to strike out the claim. First, the
court considered the objective of the class action procedure, which
is a special tool by which a claimant may bring the cause of many
class members who do not take part in the proceeding into a
judicial determination. Usually this concerns cases in which the
damage caused to each of the class members is not significant so as
to justify a personal claim.
However, there is an interest in enabling difficult and complicated
claims which the public interest is in favour of, in order to deter
defendants from breaching the law and in order to obtain
arrangements which may end the proceeding for the benefit of the
whole class. The class action is also a tool for the private
enforcement of public and private interests where the authorities'
enforcement is less effective.
Usually, a motion to dismiss a claim will be dealt with rarely at
the preliminary stage of the certification of the claim. However,
where threshold arguments are clear and can be easily determined,
this will justify the dismissal of a class action at the
preliminary stage. However, this was not the case in this dispute.
The court asked whether the class action procedure would be
efficient and fair, which is the test provided by the Class Actions
Law 2006. In answering this question, the court emphasized that at
this stage, the decision will be only whether to dismiss the claim
or deal with it further.
The common question to all respondents was, first of all, the issue
of liability. This issue raised secondary issues concerning the
materials which were emitted by each of the respondents and whether
this emission constituted a breach of the law by any of them. As
the claim dealt with mass exposure to hazardous substances which
originated from different tortfeasors, the question of how the
allocation of liability will best be done emerged. The causal
connection issue was also complicated and raised issues which were
common to the class as a whole and issues which were particular,
and which will be based on statistic and scientific evidence.
Finally, the court has a broad discretion on how to allocate the
damage. However, particular issues will require determination
concerning the medical situation of each class member, their losses
and their life expectancy, among other things.
The legislature was aware of the fact that in some claims, not all
of the issues will be dealt with in a class action, and granted the
courts tools which may assist them in determining the issue of the
remedies to the class members, even though a class is not
homogenous.
The consideration to which the court gave the heaviest weight was
the public interest in handling complicated claims for
environmental contamination, which may reach a court determination
only through the class action procedure, which will have a
deterrent effect. In addition, the court held that it will be more
efficient to deal with the exposure to numerous potential
contaminant bodies instead of handling particular individual
proceedings against each of the respondents.
In view of the above considerations and especially in order to
fulfil the objective of the private enforcement of environmental
laws, the judge decided that at this stage the proceedings will
continue and emphasised that this decision does not accept the
claim, but rather only opens the door to a hearing.
Notably, the motion to dismiss was submitted prior to the
respondents filing their responses to the motion and the claim.
Therefore, the progress of these proceedings should be followed in
order to learn how the court will deal with this precedential claim
in the future. [GN]
HEALTH FIRST: Court Dismisses False Claims, Antitrust Lawsuits
--------------------------------------------------------------
Ayla Ellison at beckershospitalreview.com reports that a federal
judge in Florida has dismissed two lawsuits filed against Health
First, an integrated health system based in Rockledge, Fla.
On April 21, Judge Roy Dalton Jr. dismissed a class-action
antitrust lawsuit that was filed against Health First two days
earlier. The complaint accused Health First of monopolizing
Florida's acute care market in violation of state and federal
antitrust laws. The judge dismissed the case as an impermissible
shotgun pleading in which each count adopts the allegations of all
preceding counts.
"Such pleadings impose on the court the onerous task of sifting out
irrelevancies to determine which facts are relevant to which causes
of action," the judge wrote in the April 21 order. "If plaintiffs
choose to replead, the amended complaint must clearly delineate
which factual allegations are relevant to each claim."
On April 22, Mr. Dalton dismissed a False Claims Act lawsuit filed
by a Florida-based physician group against Health First. The judge
dismissed the case after finding that the physician group violated
a written stipulation to not file a third amended complaint in the
case.
Health First said it appreciates the judge's dismissal of the
"unfounded and frivolous lawsuits."
"These lawsuits divert millions of dollars to defend which should
be used for our community," Health First Senior Vice President and
Chief Legal Officer Nicholas Romanello said in a statement to
Becker's Hospital Review. "Health First remains focused on our
mission of improving the wellness and health of Brevard families."
[GN]
HYUNDAI MOTOR: Faces Suit Over Foul Odor in Vehicle Trim Models
---------------------------------------------------------------
Hellmuth & Johnson has announced that clients Richard Stucki and
Travis Tharpe have brought a class action against Hyundai Motor
America, Inc. due to a foul odor detected in Hyundai's Palisade SEL
and Limited trim models.
According to the complaint, the Palisade SEL and Limited trim
models do not hold up to what Hyundai promises to consumers.
Shortly after purchasing or leasing their Palisade, plaintiffs and
class members began smelling a strong foul odor, emanating from
inside the vehicle, which was not detectable during test drives.
Some owners cannot drive their vehicles because the smell is so
strong it makes them or their passengers nauseous. Other owners,
while able to drive the vehicle, have experienced the inconvenience
or even embarrassment of driving a brand new car that smells.
Despite knowing and being made aware of the odor on multiple
occasions from vehicle owners across the country, Hyundai has
failed or refused to provide any permanent solutions to consumers.
Hyundai has represented the smell comes from the headrests, but
even though some consumers have received replacement headrests,
they report that has not fixed the issue. Hyundai has also not
issued a recall, despite the known defect.
"I have been in customer service my entire career, including more
than 20 years at a car dealership. I know what good and responsible
customer service looks like," stated Richard Stucki. "Hyundai has
failed to respond to our concerns and repeated calls. We have no
other recourse, and we are not the only ones who have been affected
by this issue."
Click here
https://hjlawfirm.com/wp-content/uploads/2021/04/DKT-1-Complaint-4_27_21-5137120.1.pdf
for a copy of the complaint filed in the United States District
Court for the District of Minnesota. For more information about the
case, contact Hellmuth & Johnson partner Anne T. Regan at (952)
460-9285.
The vehicle owners are represented by Anne T. Regan, Nathan D.
Prosser, and Brian W. Nelson of Hellmuth & Johnson, Minneapolis,
Minnesota.
Hellmuth & Johnson
Hellmuth & Johnson, a Top 25 Minnesota law firm, represents clients
ranging from individuals and emerging start-ups to multinational
Fortune 500 companies. Focusing on transactional law, litigation
and appeals, Hellmuth & Johnson attorneys are leaders in their
fields. Founded in 1994, Hellmuth & Johnson has become one of
Minnesota's fastest growing law firms. Learn more at
www.hjlawfirm.com.
View source version on businesswire.com:
https://www.businesswire.com/news/home/20210429006003/en/
Contacts
Sarah Delaney
Director of Marketing
(952) 746-2147
sdelaney@hjlawfirm.com [GN]
HYUNDAI PALISADE: Hellmuth & Johnson Files Class Action Complaint
-----------------------------------------------------------------
Hellmuth & Johnson has announced that clients Richard Stucki and
Travis Tharpe have brought a class action against Hyundai Motor
America, Inc. due to a foul odor detected in Hyundai's Palisade SEL
and Limited trim models.
According to the complaint, the Palisade SEL and Limited trim
models do not hold up to what Hyundai promises to consumers.
Shortly after purchasing or leasing their Palisade, plaintiffs and
class members began smelling a strong foul odor, emanating from
inside the vehicle, which was not detectable during test drives.
Some owners cannot drive their vehicles because the smell is so
strong it makes them or their passengers nauseous. Other owners,
while able to drive the vehicle, have experienced the inconvenience
or even embarrassment of driving a brand new car that smells.
Despite knowing and being made aware of the odor on multiple
occasions from vehicle owners across the country, Hyundai has
failed or refused to provide any permanent solutions to consumers.
Hyundai has represented the smell comes from the headrests, but
even though some consumers have received replacement headrests,
they report that has not fixed the issue. Hyundai has also not
issued a recall, despite the known defect.
"I have been in customer service my entire career, including more
than 20 years at a car dealership. I know what good and responsible
customer service looks like," stated Richard Stucki. "Hyundai has
failed to respond to our concerns and repeated calls. We have no
other recourse, and we are not the only ones who have been affected
by this issue."
Click here
https://hjlawfirm.com/wp-content/uploads/2021/04/DKT-1-Complaint-4_27_21-5137120.1.pdf
for a copy of the complaint filed in the United States District
Court for the District of Minnesota. For more information about the
case, contact Hellmuth & Johnson partner Anne T. Regan at (952)
460-9285.
The vehicle owners are represented by Anne T. Regan, Nathan D.
Prosser, and Brian W. Nelson of Hellmuth & Johnson, Minneapolis,
Minnesota.
Hellmuth & Johnson
Hellmuth & Johnson, a Top 25 Minnesota law firm, represents clients
ranging from individuals and emerging start-ups to multinational
Fortune 500 companies. Focusing on transactional law, litigation
and appeals, Hellmuth & Johnson attorneys are leaders in their
fields. Founded in 1994, Hellmuth & Johnson has become one of
Minnesota's fastest growing law firms. Learn more at
www.hjlawfirm.com.
View source version on
businesswire.com:https://www.businesswire.com/news/home/20210429006003/en/
CONTACT: Sarah Delaney
Director of Marketing
(952) 746-2147
sdelaney@hjlawfirm.com [GN]
INTRUSION INC: Bragar Eagel Reminds Investors of June 15 Deadline
-----------------------------------------------------------------
Bragar Eagel & Squire, P.C., a nationally recognized shareholder
rights law firm, reminds investors that a class action has been
commenced on behalf of stockholders of Intrusion, Inc. (NASDAQ:
INTZ), LifeMD, Inc. (NASDAQ: LFMD), Romeo Power, Inc. (NYSE: RMO),
and Acadia Pharmaceuticals, Inc. (NASDAQ: ACAD). Stockholders have
until the deadline below to petition the court to serve as lead
plaintiff. Additional information about the case can be found at
the link provided.
Intrusion, Inc. (NASDAQ: INTZ)
Class Period: January 13, 2021 to April 13, 2021
Lead Plaintiff Deadline: June 15, 2021
On April 14, 2021, White Diamond Research published a report
alleging, among other things, that Intrusion's product, Shield,
"has no patents, certifications, or insurance, which are all
essential for selling cybersecurity products" and that "Shield is
based on open-source data already available to the public." Thus,
the report stated that "Shield is a repackaging of pre-existing
technology rather than an innovative offering." Moreover, the
report alleged that the claims that Shield "stopp[ed] a total of
77,539,801 cyberthreats from 805,110 uniquely malicious entities .
. . in the 90-day beta program" were "outlandish," leading White
Diamond to question "[h]ow have these companies been able to
function so far, as they've been attacked many times per minute by
ransomware, malware, data theft, phishing and DDoS attacks?"
On this news, the Company's share price fell $4.50, or over 16%, to
close at $23.75 per share on April 14, 2021. The share price
continued to decline by $3.22, or 14%, over the next trading
session to close at $20.53 per share on April 15, 2021.
The complaint, filed on April 16, 2021, alleges that throughout the
Class Period defendants made materially false and/or misleading
statements, as well as failed to disclose material adverse facts
about the Company's business, operations, and prospects.
Specifically, defendants failed to disclose to investors: (1) that
Intrusion's Shield product was merely a repackaging of existing
technology in the Company's portfolio; (2) that Shield lacked the
patents, certifications, and insurance critical to the sale of
cybersecurity products; (3) that the Company had overstated the
efficacy of Shield's purported ability to protect against
cyberattacks; (4) that, as a result of the foregoing, Intrusion's
Shield was reasonably unlikely to generate significant revenue; and
(5) that, as a result of the foregoing, defendants' positive
statements about the Company's business, operations, and prospects
were materially misleading and/or lacked a reasonable basis.
For more information on the Intrusion class action go to:
https://bespc.com/cases/INTZ
About Bragar Eagel & Squire
Bragar Eagel & Squire, P.C. is a nationally recognized law firm
with offices in New York, California, and South Carolina. The firm
represents individual and institutional investors in commercial,
securities, derivative, and other complex litigation in state and
federal courts across the country. For more information about the
firm, please visit www.bespc.com. Attorney advertising. Prior
results do not guarantee similar outcomes.
Contact Information:
Bragar Eagel & Squire, P.C.
Brandon Walker, Esq.
Melissa Fortunato, Esq.
Marion Passmore, Esq.
(212) 355-4648
investigations@bespc.com
www.bespc.com [GN]
IQ DATA: Cy Pres Recipients and Amounts in Esposito Suit Approved
-----------------------------------------------------------------
In the case, MICHAEL ESPOSITO, on behalf of himself and all others
similarly situated, Plaintiff v. I.Q DATA INTERNATIONAL, INC.,
Defendant, Case No. 2:18-cv-437-JES-NPM (M.D. Fla.), Judge John A.
Steele of the U.S. District Court for the Middle District of
Florida, Fort Myers Division, granted the Plaintiffs' Unopposed
Motion for Approval of Cy Pres Recipients and Amounts filed on
April 13, 2021.
On Oct. 30, 2019, the Court granted final approval of the class
action settlement and final judgment. The settlement included a
common fund of $350,000 to be used to pay all distributions to
settlement class members who did not opt out, as well as a service
award to the class representative, and attorney fees and litigation
costs.
The settlement agreement provides that if there are funds remaining
after distributions have been made to the settlement class members,
the remainder of "any unclaimed funds will be given to a mutually
agreed upon Cy Pres recipient." The Plaintiff states that after
full, final, and complete administration of the class, there is a
balance of unclaimed funds in the amount of $96,174.10.
According to the Plaintiff, the parties have in good faith agreed
upon the following non-profit organizations to which to distribute
the unclaimed funds as Cy Pres:
1. Mandel Jewish Community Center of the Palm Beaches -
Designated for the Children's Autism Department, allocation:
$20,000.
2. Saint Jude's Children's Hospital, allocation: $20,000.
3. University of Miami School of Law - Designated for a
Consumer Law Related Scholarship, allocation: $20,000.
4. Coast-to-Coast Legal Aid of Broward County, allocation:
$12,000.
5. Legal Aid Service of Broward County, allocation: $12,000.
6. Dade Legal Aid and Put Something Back, allocation:
$12,174.10.
Accordingly, the parties move for an order approving the mentioned
Cy Pres recipients and permitting distribution of the amounts set
forth.
Judge Steele finds that the present case involved a consumer class
action challenging debt collection practices by I.Q. Data with
respect to class members who had purchased residential tenant
bonds. He holds that the non-profit organizations identified
implicate benefits for children's welfare, and promoting legal
education and aid related to consumer law or that may assist other
consumers. While not entirely related to consumer welfare, he
finds no reason not to approve the parties agreed upon Cy Pres
recipients and their respective awards. He accordingly finds that
the remaining settlement funds may be properly distributed to these
organizations.
Accordingly, Judge Steele granted the Plaintiff's Unopposed Motion
for Approval of Cy Pres Recipients and Amounts. The parties will
effect the cy pres distribution in the amounts and to the
recipients identified herein within 30 days of the date of the
Order.
A full-text copy of the Court's April 21, 2021 Order is available
at https://tinyurl.com/dkkmme4 from Leagle.com.
JELD-WEN HOLDING: Lifshitz Law Announces Securities Class Action
----------------------------------------------------------------
Jeld-Wen Holding, Inc. (NYSE: JELD)
Lifshitz Law Firm, P.C. announces that on October 26, 2020, the
Court issued an Order denying Defendants' Motions to Dismiss a
putative class action complaint. The Complaint alleges that
throughout the Class Period, Jeld-Wen stated that its products,
including doors, compete against those of other manufacturers based
on price, and described the market in which the Company sells its
doors as "highly competitive." The Company also repeatedly
attributed its strong margins and anticipated margin growth to
legitimate business factors, such as "strategic pricing decisions"
and an increased emphasis on "pricing optimization." The Complaint
alleges that these and similar statements made by Defendants during
the Class Period were false and misleading because Defendants knew
that Jeld-Wen was engaged in a price-fixing conspiracy and that as
a result of Defendants' misrepresentations, shares of Jeld-Wen's
common stock traded at artificially inflated prices throughout the
Class Period.
If you are a JELD investor, and would like additional information
about our investigation, please complete the Information Request
Form or contact Joshua Lifshitz, Esq. by telephone at (516)493-9780
or e-mail at info@jlclasslaw.com.
ATTORNEY ADVERTISING.(C) 2021 Lifshitz Law Firm, P.C. The law firm
responsible for this advertisement is Lifshitz Law Firm, P.C. LLP,
1190 Broadway, Hewlett, New York 11557, Tel: (516)493-9780. Prior
results do not guarantee or predict a similar outcome with respect
to any future matter.
Contact:
Joshua M. Lifshitz, Esq.
Lifshitz Law Firm, P.C.
Phone: 516-493-9780
Facsimile: 516-280-7376
Email: jml@jlclasslaw.com [GN]
JOHNS HOPKINS: Court Narrows Claims in Amended Botts Complaint
--------------------------------------------------------------
In the case, ELENA BOTTS, on behalf of herself and all others
similarly situated, Plaintiff v. THE JOHNS HOPKINS UNIVERSITY,
Defendant, Civil Action No. ELH-20-1335 (D. Md.), Judge Ellen L.
Hollander of the U.S. District Court for the District of Maryland
granted in part and denied in part Johns Hopkins' motion to dismiss
the Amended Complaint.
The COVID-19 global pandemic is the worst public health crisis that
the world has experienced in 100 years. Given the potentially
severe consequences of contracting the virus, the pandemic produced
unparalleled and exceptional circumstances impacting every aspect
of our lives. Indeed, for a significant period of time, life as we
have known it came to a halt. As mitigation efforts began to take
hold in March 2020, many businesses and schools were forced to shut
their doors, including Johns Hopkins University.
Founded in 1876, Johns Hopkins is a "private research university"
centered in Baltimore with approximately 23,000 students in its
graduate and undergraduate programs. On March 11, 2020, in
response to the public health crisis, Johns Hopkins announced the
closure of its campus. And, like many institutions of higher
learning, it fashioned an alternative in teaching methodology, so
that its students could continue their studies. In particular,
Hopkins transitioned to online, remote learning.
Through the summer and fall semesters of 2020, as the pandemic
continued, the University's campus remained closed and its
offerings continued to be virtual. But, the University's tuition
remained almost the same for most students.
The failure of JHU to remit and reduce tuition and fees, despite
the move to online instruction, led Plaintiff Botts, a graduate
student in JHU's School of International Studies ("SAIS"), to file
suit against Hopkins. Botts filed a putative class action against
the University, on behalf of herself, undergraduate, and graduate
students, complaining that Hopkins "has not apportioned the
financial burden in an equitable manner."
Botts complains that JHU has "retained all collected tuition, fees,
and related payments since the Spring 2020 semester." She also
alleges that Hopkins has "demanded" tuition and fees consistent
with an "on-campus educational experience." Because of the
suspension of in-person instruction, Botts seeks a partial refund
of tuition and fees, claiming that the University "has not
delivered the educational services, facilities, access and/or
opportunities" that were "expected, were promised, contracted for
and paid for."
The Amended Complaint contains three counts: breach of contract
(Count I); unjust enrichment (Count II); and violations of the
Maryland Consumer Protection Act ("MCPA"), Md. Code (2013 Repl.
Vol., 2017 Supp.), Sections 13-101 et seq. of the Commercial Law
Article ("C.L.") (Count III). All three counts are asserted on
behalf of all three classes: the "Spring 2020 Semester Class"; the
"Summer 2020 Semester Class"; and the "Fall 2020 Semester and
Beyond Class." Each class includes undergraduate and graduate
students who paid "tuition and/or fees for in-person educational
services that Johns Hopkins did not provide" during the relevant
semester.
The Plaintiff seeks damages in the form of "reimbursement, return,
and disgorgement of the pro-rated portion of tuition and fees" paid
for the Spring 2020 semester and the subsequent semesters of online
learning, to account "for the diminished value of online
learning."
Johns Hopkins has moved to dismiss the Amended Complaint for
failure to state a claim, pursuant to Fed. R. Civ. P. 12(b)(6). ECF
42. The motion is supported by a memorandum of law. The Plaintiff
opposes the Motion. The Defendant has replied.
Notably, the class action is one of many brought by students
against colleges and universities, complaining about tuition and
fees in light of the pandemic. Indeed, since the filing of the
Reply, both sides have filed notices of supplemental authority,
bringing to the Court's attention several recent decisions in some
of these suits.
Johns Hopkins has moved to dismiss the Amended Complaint on four
grounds. First, it contends that all of the Plaintiff's claims
should be dismissed under the educational malpractice doctrine
because "they improperly challenge the qualitative merits of
virtual versus in-person learning." Second, Johns Hopkins argues
that the Plaintiff has failed to state a breach of contract claim
because she has not sufficiently identified the basis for any
contractual right to in-person instruction. Next, it alleges that
Botts fails to plead any plausible basis for unjust enrichment.
JHU notes, for example, that Botts does not allege that the
University "saved money, and thus has profited, by moving classes
to a virtual setting." And, JHU moves to dismiss the suit under
the MCPA because Botts does not allege that Johns Hopkins engaged
in fraud or misrepresentation.
The Plaintiff asserts, inter alia, that Hopkins argues "against a
straw man complaint." She maintains that the University presents
challenges to non-existent claims. According to Botts, Hopkins
"seeks dismissal of a pleading it wishes to oppose" and not the one
that was "actually filed in the case." For example, Botts contends
that JHU "improperly tries to recast her claims sounding in
contract as tort claims."
A. The Educational Malpractice Doctrine
Judge Hollader holds that from the face of the Amended Complaint,
it is plausible that the Plaintiff's claims may be resolved without
a subjective assessment of educational quality. Therefore, at this
juncture the educational malpractice doctrine does not bar the
Plaintiff's claims. However, this determination does not foreclose
the Court from reassessing, at a later time, whether resolution of
the Plaintiff's claims requires the Court "to enter the classroom"
to evaluate "whether a course conducted remotely was less valuable
than one conducted in person -- and if so, by how much."
B. Breach of Contract
The Judge opines that the allegations are sufficient to support a
claim that, at the very least, Johns Hopkins and the Plaintiff had
an implied contract for in-person, on-campus instruction. She
finds that John Hopkins may be able to establish that the parties
contemplated that the students would bear the risk of a University
closure caused by a crisis, such as a global pandemic. But, her
ruling must be based on the allegations; questions as to other
terms of the alleged contract are not before her at this stage.
These are matters that require further factual development.
Accordingly, the Judge denies the Defendant's Motion with respect
to Count I.
C. Unjust Enrichment
The Judge is satisfied that the Plaintiff has pleaded sufficient
facts to withstand dismissal of her unjust enrichment claim. As
with the contract claim, the question is not whether Johns Hopkins
was justified in moving its classes online. Rather, the issue is
whether Hopkins is entitled to retain tuition that it collected,
despite the alleged promise to deliver in-person, on-campus
instruction. Moreover, even if the Plaintiff received a
substantial benefit from her tuition payments, a motion to dismiss
tests the sufficiency of the pleading, not the merits of the case.
The "question of whether the institution was unjustly enriched by
retaining Botts' tuition -- which allegedly encompassed the costs
of delivering in-person instruction and all of the attendant
benefits that flow from it -- is a question improper for resolution
on a motion to dismiss."
D. Consumer Protection Act
The Judge concludes that the Plaintiff has failed to state a claim
that the University engaged in unfair or deceptive trade practices.
She opines that the Amended Complaint does not allege any false
representations or misrepresentations on the part of Johns Hopkins
that "online education has the same value as in-person education."
And, a complaint does not "suffice if it tenders naked assertions
devoid of further factual enhancement." Moreover, a reasonable
student could not consider himself or herself "deceived" or
"misled" where the "school's normal course of on-campus instruction
was altered mid-semester by an unforeseen global pandemic.
For the foregoing reasons, Judge Hollander granted in part and
denied in part the Motion. She denied it as to Counts I and II and
granted it as to Count III. An Order follows, consistent with the
Memorandum Opinion.
A full-text copy of the Court's April 21, 2021 Memorandum Opinion
is available at https://tinyurl.com/fmzj683b from Leagle.com.
KAISER PERMANENTE: Settles Employee Racial Discrimination Suits
---------------------------------------------------------------
fiercehealthcare.com reports that Kaiser Permanente has settled two
class-action race discrimination lawsuits brought by current and
former employees for a total of $18.9 million, according to
statements from the plaintiffs' legal representation and the health
system.
The first $11.5 million settlement covers roughly 2,225 Black
employees who fall within the administrative support and consulting
services job families at Kaiser Permanente's locations.
Alongside the money, the system agreed "to institute comprehensive
workplace programs to ensure that Black employees' compensation and
opportunities for advancement are fair and equitable" as part of
the agreement, according to the plaintiffs' announcement.
RELATED: This Minneapolis hospital official is using data to take
on systemic racism in healthcare
The case was filed in the San Francisco County Superior Court and
comes after more than two years of negotiations between the
parties, the plaintiffs said.
Going forward, Kaiser will retain a mutually agreed upon
independent consultant who will develop and manage a job analysis
review over the course of a year. From this, the system will
implement career development guides and other resources for Black
employees working in the named job families.
Other measures agreed upon as part of the settlement include an
independent, equity-focused annual pay analysis for the next three
years and the appointment of an internal compliance officer to
ensure these new policies are met appropriately.
"As an African American current employee, I have come forward to
raise issues of racial equity to make our workplace stronger,"
Charleta Dabrowski, a named plaintiff who currently works at Kaiser
as an operations specialist, said in a statement. "I support new
programs dedicated to ensuring equal pay and fair opportunities for
Black, Indigenous and People of Color at Kaiser Permanente."
RELATED: Fierce Healthcare's 2021 Most Influential Minority
Executives in Healthcare
The second case was brought against Kaiser last June by former
employee Michael Cuenca on behalf of roughly 2,500 Latinx staff
working in administrative support, consulting services and other
similar positions among Kaiser entities.
It alleged that the organization was paying these employees less
than white workers and disproportionately hired them to
lower-paying positions.
Kaiser settled this case for $7.4 million and agreed to complete
internal reforms similar to the previous case for the company's
Hispanic and Latinx employees.
"Mr. Cuenca firmly believes that Kaiser Permanente, as one of our
state's biggest employers, should represent the diversity of
California and be fully inclusive of Hispanic and Latino people,
who are a vital and growing part of the population," Bryan
Schwartz, who acted as Cuenca's counsel, said in a statement. "Mike
raised these issues of racial and ethnic discrimination and pay
disparities, in part, to help create better job opportunities for
Hispanic and Latino Californians and believes this settlement will
help move Kaiser in that direction."
RELATED: Humana agrees to $17M settlement in home health workers'
class-action suit
"It is because of our commitment to equity and fairness that we
have been especially saddened to learn that any employee would feel
discriminated against at Kaiser Permanente," the system told Fierce
Healthcare in an emailed statement.
"While various elements of the lawsuits are subject to dispute, we
recognize the importance of listening to and learning from our
employees. To that end, we have chosen to work cooperatively with
plaintiff groups to settle two class action lawsuits on negotiated
terms," Kaiser said.
Statements from the plaintiffs and Kaiser also referenced internal
programs announced last year by the system that aim to support
workplace inclusivity.
"This moment has given us the opportunity to accelerate the work
already well underway to benefit, in particular, approximately
4,800 current and former Black and Latinx employees in California
in the administrative support and consulting services job
categories," the organization said.
Kaiser brought in $2.2 billion in operating income last year and
increased its health plan membership by nearly 110,000 members to
12.4 million, the integrated system disclosed in February as part
of its most recent earnings report. Its expenses also jumped 6%
year over year from $81.8 billion to $86.5 billion.
Numerous organizations are re-examining their role in racial
discrimination after a year of cultural unrest, and healthcare is
no exception.
Among the workforce, a study published last month by George
Washington University Milken Institute School of Public Health
researchers found that Black, Hispanic and Native American people
were underrepresented across a slew of healthcare professions. The
authors said educational disparities and other barriers played a
role in these staffing trends.
Organizations like CommonSpirit Health have recently launched new
partnership programs designed to help close such gaps in
representation.
The healthcare industry has also turned its focus toward race-based
disparities in care delivery and outcomes.
In February, for instance, more than 20 health system members of
the Catholic Health Association made new commitments to addressing
health disparities. Professional groups have adjusted their
policies and practices to support anti-racist concepts, while
regulators and experts have sounded the alarm on racially biased
algorithms and other tech tools that could further increase
disparities. [GN]
LIFEMD INC: Bragar Eagel Reminds Investors of June 15 Deadline
--------------------------------------------------------------
Bragar Eagel & Squire, P.C., a nationally recognized shareholder
rights law firm, reminds investors that a class action has been
commenced on behalf of stockholders of Intrusion, Inc. (NASDAQ:
INTZ), LifeMD, Inc. (NASDAQ: LFMD), Romeo Power, Inc. (NYSE: RMO),
and Acadia Pharmaceuticals, Inc. (NASDAQ: ACAD). Stockholders have
until the deadline below to petition the court to serve as lead
plaintiff. Additional information about the case can be found at
the link provided.
LifeMD, Inc. (NASDAQ: LFMD)
Class Period: January 19, 2021 to April 13, 2021
Lead Plaintiff Deadline: June 15, 2021
LifeMD is a direct-to-patient telehealth company. It offers a
telemedicine platform that purports to help patients access
licensed providers for diagnoses, virtual care, and prescription
medications.
On April 14, 2021, Culper Research issued a report alleging that
"LifeMD appears to use unlicensed doctors to dispense OTC
medications, has implemented an auto shipping/auto billing scheme,
failed to honor guarantees, and put in place abusive telemarketing
practices." The report also alleged that several of the Company's
executives were involved in "wide ranging fraud" at Redwood
Scientific, which was charged by the U.S. Federal Trade Commission
for "unlawful auto shipping, abusive telemarketing, and false
claims." Specifically, according to Culper Research, "many
customers are effectively duped into purchasing subscriptions
rather than one-time purchases" and LifeMD "makes cancellations
difficult if not impossible."
On this news, the Company's share price fell $2.84, or 24%, to
close at $9.00 per share on April 14, 2021.
The complaint, filed on April 16, 2021, alleges that throughout the
Class Period defendants made materially false and/or misleading
statements, as well as failed to disclose material adverse facts
about the Company's business, operations, and prospects.
Specifically, defendants failed to disclose to investors: (1) that
many of LifeMD's executives were associated with Redwood Scientific
when it was charged for unlawful auto shipping, abusive
telemarketing, and false claims, and that they employed similar
practices at the Company; (2) that LifeMD engaged in auto shipping
products to unwilling customers to record recurring revenue and the
Company made it difficult to cancel such subscriptions; (3) that
certain of the purportedly licensed physicians on the Company's
platform were not in fact licensed and faced disciplinary action;
(4) that, as a result of the foregoing practices, the Company was
reasonably likely to face regulatory scrutiny and/or reputational
harm; and (5) that, as a result of the foregoing, defendants'
positive statements about the Company's business, operations, and
prospects were materially misleading and/or lacked a reasonable
basis.
For more information on the LifeMD class action go to:
https://bespc.com/cases/LFMD
About Bragar Eagel
Bragar Eagel & Squire, P.C. is a nationally recognized law firm
with offices in New York, California, and South Carolina. The firm
represents individual and institutional investors in commercial,
securities, derivative, and other complex litigation in state and
federal courts across the country. For more information about the
firm, please visit www.bespc.com. Attorney advertising. Prior
results do not guarantee similar outcomes.
Contact Information:
Bragar Eagel & Squire, P.C.
Brandon Walker, Esq.
Melissa Fortunato, Esq.
Marion Passmore, Esq.
(212) 355-4648
investigations@bespc.com
www.bespc.com [GN]
LOANDEPOT.COM LLC: Faces Aranda Suit Over Illegal Credit Reporting
------------------------------------------------------------------
SERINA ARANDA, individually and on behalf of all others similarly
situated, Plaintiff v. LOANDEPOT.COM, LLC, and DOES 1-10,
inclusive, Defendants, Case No. 2:21-cv-00341 (E.D. Cal., April 14,
2021) is a class action complaint brought against the Defendants
for their alleged violations of the Fair Credit Reporting Act and
the California Consumer Credit Reporting Agencies Act.
The Plaintiff alleges the Defendants of unlawful practice of using
or obtaining consumer credit reports without a permissible purpose.
This arises thereafter she provided her name, contact information,
and loan amount to an online lending marketplace "LendingTree" on
or around August 14, 2019 to obtain options for refinancing. The
Defendant's representative allegedly contacted her on or about
August 15, 2019 requesting her information for purposes of
verifying her identity although the Defendant had already acquired
her personal information from Lending Tree without her knowledge.
The Plaintiff never provided the Defendant her implied or express
consent to place hard inquiry into her consumer credit report.
According to the complaint, the Plaintiff has suffered damage to
her credit and monetary loss connected with the delay caused to her
refinancing because of the Defendant's unlawful and impermissible
pull of her credit report which negatively reflects upon her credit
report.
The Plaintiff brings this complaint seeking redress for himself and
other similarly situated individual that includes actual and
punitive damages, all reasonable and necessary attorneys' fees and
litigation costs, pre- and post-judgment interest, and all other
relief, general or special, legal and equitable as the Court deemed
to be just.
Loandepot.com, LLC provides loan services. [BN]
The Plaintiff is represented by:
Todd M. Friedman, Esq.
Adrian R. Bacon, Esq.
Meghan E. George, Esq.
Thomas E. Wheeler, Esq.
LAW OFFICES OF TODD M. FRIEDMAN, P.C.
21550 Oxnard St., Suite 780
Woodland Hills, CA 91367
Tel: (323) 306-4234
Fax: (866) 633-0228
E-mail: tfriedman@toddflaw.com
abacon@toddflaw.com
mgeorge@toddflaw.com
twheeler@toddflaw.com
LORDSTOWN MOTORS: Kaskela Law Files Securities Class Action Suit
----------------------------------------------------------------
Kaskela Law LLC announces that a shareholder class action lawsuit
has been filed against Lordstown Motors Corp. (NASDAQ: RIDE)
("Lordstown" or the "Company") f/k/a DiamondPeak Holdings Corp.
(NASDAQ: DPHC) ("DiamondPeak") on behalf of investors who purchased
shares of the Company's stock between August 3, 2020 and March 17,
2021, inclusive (the "Class Period").
Lordstown stockholders who purchased or acquired DPHC or RIDE
securities prior to September 21, 2020 are encouraged to contact
Kaskela Law LLC (D. Seamus Kaskela, Esq.) at (484) 258-1585, or by
email at skaskela@kaskelalaw.com or online at
https://kaskelalaw.com/case/xl-fleet-corp/, for additional
information about their legal rights and options.
According to the complaint, on March 12, 2021, Hindenburg Research
published a scathing report on the electric light duty truck
manufacturer entitled "The Lordstown Motors Mirage: Fake Orders,
Undisclosed Production Hurdles, and a Prototype Inferno." According
to Hindenburg, the Company's claimed 100,000 pre-orders for its EV
truck were "largely fictitious and used as a prop to raise capital
and confer legitimacy." Hindenburg further cited significant,
undisclosed production delays and a prototype that "burst into
flames 10 minutes before the test drive" in January 2021,
substantiating claims by former employees that the company is not
conducting the needed testing or validation required by the NHTSA.
Following this news, shares of the Company's stock fell $2.93 per
share, or over 16% in value, to close on March 12, 2021 at $14.78
per share, on heavy trading volume.
Then, on March 17, 2021, the Company held an earnings call during
which Defendant Burns disclosed that Lordstown had received an
inquiry from the SEC. Remarkably, although Lordstown also issued a
press release and a Form 8-K announcing its fourth quarter and full
year 2020 financial results after trading closed on March 17, 2021,
the Company failed to disclose the existence of the SEC inquiry in
those filings. Following this news, shares of the Company's stock
fell an additional $2.08 per share, or over 13% in value, to close
on March 18, 2021 at $13.01 per share, again on heavy trading
volume.
Lordstown investors who purchased or acquired DPHC or RIDE
securities prior to September 21, 2020 are encouraged to contact
Kaskela Law LLC for additional information about this action and
their legal rights and options. Kaskela Law LLC exclusively
represents investors in securities fraud, corporate governance, and
merger & acquisition litigation. For additional information about
Kaskela Law LLC please visit www.kaskelalaw.com. [GN]
MDL 3002: Beyer Seeks to Transfer 14 Data Breach Cases to N.D. Cal.
-------------------------------------------------------------------
IN RE: ACCELLION, INC. DATA BREACH LITIGATION, the Plaintiff Grace
Beyer moves the Judicial Panel on Multidistrict Litigation for an
Order transferring 14 currently-filed cases , as well as any
tag-along cases subsequently filed, to the United States District
Court for the Northern District of California for coordinated or
consolidated proceedings before the Honorable Edward J. Davila.
All of the cases subject to this Motion arise from an alleged
nucleus of operative facts: a massive data breach suffered by
Accellion, Inc. Accellion is a Palo Alto-based software company
that provides third-party file transfer services to clients.
Accellion makes and sells a file transfer service product called
the File Transfer Appliance (FTA), which is at the heart of this
litigation and the source of the breach. Accellion's FTA is a
20-year-old, obsolete, "legacy product" that was "nearing
end-of-life" at the time of the Data Breach, thus leaving it
vulnerable to compromise and security incidents, including the
breach involved in all of the Actions, the suits say.
All plaintiffs in the pending Actions have filed class actions
arising from Accellion's disclosure of Data Breach and alleged data
privacy failures of Accellion and Impacted Accellion Clients. The
Actions are being pursued on behalf of all persons whose PII was
compromised in the Data Breach.
Plaintiff Grace Beyer filed Beyer v. Accellion, Inc. et al., Case
No. 5:21-cv-02239 (N.D. Cal.).[BN]
The Plaintiff is represented by:
Tina Wolfson, Esq.
Robert Ahdoot, Esq.
Theodore Maya, Esq.
Andrew W. Ferich, Esq.
AHDOOT & WOLFSON, PC
2600 W. Olive Avenue, Suite 500
Burbank, CA 91505-4521
Telephone: (310) 474-9111
Facsimile: (310) 474-8585
E-mail: twolfson@ahdootwolfson.com
rahdoot@ahdootwolfson.com
tmaya@ahdootwolfson.com
aferich@ahdootwolfson.com
MERIT MEDICAL: Lifshitz Law Announces Securities Class Action
-------------------------------------------------------------
Merit Medical Systems, Inc. (NasdaqGS: MMSI)
Lifshitz Law Firm, P.C. announces that on March 29, 2021, the Court
issued an Order denying Defendants' Motion to Dismiss a putative
class action complaint alleging that the company and certain
officers made misleading statements concerning MMSI's business and
prospects. Specifically, the Complaint alleges Defendants failed to
disclose that: (a) the integrations of Cianna and Vascular
Insights, including their products, sales people, and R&D
facilities, had caused operational disruptions and reduced sales
and were months behind schedule; (b) sales of acquired company
products had slowed substantially due to pre-acquisition pipeline
fill, in particular for Vascular Insights products which, as late
as July 2019, had zero orders during fiscal 2019; and (c) in light
of the foregoing, the Company's reported financial guidance for
fiscal 2019 and 2020 was made without a reasonable basis.
If you are an MMSI investor, and would like additional information
about our investigation, please complete the Information Request
Form or contact Joshua Lifshitz, Esq. by telephone at (516)493-9780
or e-mail at info@jlclasslaw.com.
ATTORNEY ADVERTISING.(C) 2021 Lifshitz Law Firm, P.C. The law firm
responsible for this advertisement is Lifshitz Law Firm, P.C. LLP,
1190 Broadway, Hewlett, New York 11557, Tel: (516)493-9780. Prior
results do not guarantee or predict a similar outcome with respect
to any future matter.
Contact:
Joshua M. Lifshitz, Esq.
Lifshitz Law Firm, P.C.
Phone: 516-493-9780
Facsimile: 516-280-7376
Email: jml@jlclasslaw.com [GN]
MOTIVATE LLC: Bid to Compel Arbitration in Paningbatan Suit OK'd
----------------------------------------------------------------
The U.S. District Court for the Northern District of California
grants Defendant BlueCrew Inc.'s motion to compel arbitration in
the lawsuit titled FLOUZEL PANINGBATAN, Plaintiff v. MOTIVATE LLC
AND BLUECREW INC., Defendants, Case No. 20-cv-04865-YGR (N.D.
Cal.).
On June 8, 2020, the Plaintiff filed the action in Alameda County
Superior Court. Defendant Motivate removed the case to federal
court on July 20, 2020. On March 1, 2021, Defendant BlueCrew filed
a motion to compel arbitration of the Plaintiff's individual claims
and to stay her claim under the Private Attorneys General Act of
2004 ("PAGA").
The Court grants BlueCrew's motion to compel arbitration and stays
the proceeding as to the PAGA claim. It further sets a compliance
deadline for 9:01 a.m. on August 27, 2021. The parties will provide
the Court with a status update regarding the Alvarado action
pending in Los Angeles Superior Court within 14 days of that
court's ruling on the anticipated motion for preliminary approval
of the class action settlement in that case or five business days
prior to the date of the compliance deadline, whichever event is
earlier.
Upon receiving the declaration from BlueCrew's counsel confirming
that it has produced the Plaintiff's time records, the Court
discharges the April 7, 2021 Order to Show Cause without
sanctions.
The Order terminates Docket Numbers 30 and 35.
A full-text copy of the Court's Order dated April 19, 2021, is
available at https://tinyurl.com/366cz8ph from Leagle.com.
MOUNTAIRE CORP: Judge Approves $65M Class-Action Settlement
-----------------------------------------------------------
Laura Walter at coastalpoint.com reports that the Delaware Superior
Court has approved a $65 million class action settlement in one of
the Mountaire environmental civil lawsuits. By settling, the
Mountaire companies do not admit responsibility for the alleged
groundwater or air contamination caused by their wastewater
disposal activities -- but the company agrees to pay people who may
have been affected in a roughly 25-square-mile zone.
"To the class members, I hope the results here improve your life
and make up for at least some of the losses you believe you've
suffered. No settlement is never perfect, and that is especially
true where, as here, liability was strenuously fought," the Hon.
Craig. A Karsnitz announced at the April 12 fairness hearing via
Zoom.
Anyone who has lived or worked full-time in most parts of Millsboro
or Dagsboro, at any time since May 1, 2000, when the company first
acquired the Millsboro poultry processing plant, could be eligible
for compensation under the Mountaire Settlement Class. That
includes any property located partly or entirely within either the
"Groundwater Area" and/or the "Air Area" (see the official map at
www.MountaireSettlement.com).
Cuppels v. Mountaire is just one of several lawsuits that arose
after a 2017 "wastewater upset" in which untreated
poultry-processing wastewater was spray-irrigated directly onto
agricultural fields.
Investigations shined a light on Mountaire's many environmental
violations over the years, which is now reflected in the
settlement's 21-year eligibility period. Plaintiffs alleged that
"since it acquired the Millsboro plant in 2000, Mountaire had
sprayed billions of gallons of highly contaminated wastewater and
liquefied sludge on lands near residences. The waste was made up of
feathers, dirt, fecal matter, blood, flesh and fat, as well as
slaughtering, grease chiller and processing wastewater.
"The company knew its disposal practices were polluting Millsboro's
groundwater and air by increasing the levels of chemicals like
nitrates, ammonia, and hydrogen sulfide to dangerous levels. But
they did not spend the money to fix the problem or even warn local
residents . . . "
"What followed was some of the most litigation I've been part of in
my entire career," said plaintiffs' co-counsel Chase Brockstedt,
who investigated nitrates in groundwater; airborne odors and
chemicals; loss of property values and much more.
"This lawsuit and settlement send a strong signal to polluters
everywhere that communities will not stand by and watch their way
of life destroyed by environmental contamination," said Philip
Federico, co-counsel for the plaintiffs.
Judge approves settlement, and thousands register
After the class action settlement was proposed in January of 2021,
the public had to register by March. Currently, there are an
estimated 3,850 valid, on-time registrations (plus 50 late-filed
forms). That comes from 4,130 timely forms (minus 220 exact
duplicates and 56 forms from "habitual fraudulent filers,"
according to the RG2 company, which is still processing
registrations). There were also 30 opt-outs, several of which were
filed belatedly.
The results of the class action suit are legally binding to people
who lived or worked in that area, whether or not they wish to
participate. For instance, they cannot bring a future lawsuit for
the exact same issues.
There were only four objections, out of some 7,000 potential class
individuals.
Ultimately, the judge said he believed "that the settlement is in
the best interest of the class members. This case was contentiously
litigated. The parties fought over many and all issues . . . .
when contrasted with the possibility of [receiving] nothing, the
settlement is a far better alternative," said Karsnitz. "The trial
itself would have been lengthy, difficult and fraught with
uncertainty."
Mountaire also would have argued for a smaller geographic impact
area, if the company even lost.
Some people still unhappy and have lingering questions
Only four people raised objections about the settlement, and three
spoke at the Georgetown hearing. However, legal counsel on both
sides considered input from outside the class boundaries to be
"without merit."
But because their rights are not bound by this class-action
settlement due to being outside the boundaries, those people could
pursue their own legal actions against defendants in future.
Located northwest of Millsboro, some people alleged that of some
kind of dumping (whether fertilizer or another material) is still
occurring near their homes. They saw the courthouse as the last
place to raise those concerns.
Additionally, after paying a retainer fee and submitting evidence
to the class-action attorneys, some were furious and even
broken-hearted to not be included on the final settlement map.
"I went to all of those meetings. I filled out all of those papers.
I waited patiently . . . . to get a reply that 'You're not in the
area,'" said Vereta Simon, who has owned her home for 34 years,
seen questionable materials tilled into the agricultural fields,
and seen her children and spouse deal with debilitating medical
issues. "Someone is dumping. Clean it up. Give me and my husband .
. . . the chance to grow old. You took too much from me. I can't
just pick up and leave. That is my home."
But it all comes down to proof.
"If it were up to us, we would have an unlimited number of people
and funds," Brockstedt responded. "Ultimately [the experts who drew
the maps] had to base their opinions on objective scientific data.
. . . . No lawyers were involved in drawing the lines. . . . . It
simply came down to what we could walk into a courtroom and prove
to this court." Every incident must be "something we can prove was
directly tied to Mountaire."
Those houses are not downwind or downgradient of Mountaire's
activities, which is the topic at hand. The objectors' allegations
cannot be definitively tied to this particular lawsuit.
Anyone outside of the class-action area can still pursue individual
legal action against Mountaire for environmental issues, although
the judge noted that is "cold comfort."
"I do sympathize with those who were excluded that wanted to be
included. Testimony was palpable and sincere and expressed some
anger that they weren't part of the class. The disappointment is
real, but the evidence determines the results," Karsnitz said.
Overall, the judge noted, it was "outstanding results for many,
many people who are inside the class areas. . . . . There is
always a euphoria and regret when cases get resolved. I think
you're excited because you worked hard and you achieved a wonderful
result. I think there's always a regret because you've wonder
whether you could have done better or whether something at trial
might have happened differently that might have been advantageous
to either of your clients. That's the nature of settlement. . . .
if nobody's quite happy, then the settlement's probably a good one,
and I think that's today."
More legal and environmental wins
It was a fiercely litigated case, the judge noted. Karsnitz
commended the lawyers on both sides for (mostly) civilly,
skillfully and vigorously representing their clients.
Karsnitz also approved attorneys' fees for the plaintiff firms,
Baird Mandalas Brockstedt LLC of Delaware, and Schochor, Federico
and Staton P.A. of Maryland. Subtracted from the $65 million pot,
the plaintiffs' attorneys will receive a 25 percent ($16.25
million) payment, plus expenses of $2.5 million. After three years
of intense research and litigation, that request is actually less
than the approximately 33 percent that they might have requested in
such a case.
The individuals who led the class action case also expanded their
reach into the federal district court case. Such a group is allowed
to -- and did -- become intervenors while Mountaire and Delaware
Department of Natural Resources & Environmental Control (DNREC)
were drafting a consent decree that didn't have enough teeth to
protect the environment, residents argued. The intervenors
successfully pushed for a larger Mountaire investment, including
$120 million for necessary plant upgrades and $20 million for
ongoing maintenance.
Along with this month's $65 million settlement, attorneys suggested
that this total $205 million impact could be the largest nitrate
groundwater contamination resolution in history. Besides improving
the mechanical wastewater treatment system, additional efforts
include, continuing to provide bottled water to certain residents,
installing at least 60 acres of phytoremediation, and establishing
a process to respond to odor complaints.
About a year ago, Mountaire made another a private settlement with
another group of about 100 citizens, the Balback family and others,
represented by Jacobs & Crumplar P.A.
"While Mountaire does not believe that it caused any damage to any
of the plaintiffs, it chose to settle the case in order to achieve
a final resolution and to allow construction of a new wastewater
treatment plant to proceed," the company announced. "The settlement
resolves all outstanding class-action claims for injuries, damages
or nuisance."
"We are moving ahead with building our new state-of-the-art
wastewater treatment plant, which is advancing quickly," said
Phillip Plylar, president of Mountaire Farms in Millsboro. "We're
ready to put this chapter behind us and forge a new relationship
with our neighbors moving forward."
Mountaire Farms' parent company is based in Arkansas, with
operations in Delaware, Maryland, Virginia and North Carolina, and
provides work for nearly 10,000 people in those regions.
"Mountaire Farms of Delaware is proud to have been a key member of
the Millsboro community for over 20 years, and by entering into the
proposed settlement agreement, Mountaire is taking the final step
toward putting litigation behind them and focusing on their core
mission of sustainably providing their customers with quality
products . . . . and being a good neighbor," said Mountaire
attorney Tim Webster.
The next steps forward
So, the path has been laid. The Court has approved the class action
settlement. People have registered to participate, but that doesn't
mean they'll all get a check in the mail tomorrow. Now, the
settlement administrator (the Hon. Irma Raker, a preeminent
arbitrator and retired senior judge from the Maryland Court of
Appeals) will ask participants to submit details on their claims
(such as health, well water, home value or other). And she'll
decide how to weigh the severity of each.
After attorney and court fees, the rest of the account will be
divvied up based on those individual claims. Checks can be written,
or trusts set up for minors. A few million dollars will be reserved
for any late filers (anyone who files late in the next 12 months,
or who discovers new issues in the next five years). [GN]
NESTLE WATERS: Website Inaccessible to Blind, Tenzer-Fuchs Says
---------------------------------------------------------------
MICHELLE TENZER-FUCHS, on behalf of herself and all others
similarly situated, Plaintiff v. NESTLE WATERS NORTH AMERICA
HOLDINGS, INC., d/b/a READYREFRESH.COM, Defendant, Case No.
2:21-cv-02064-JS-SIL (E.D.N.Y., April 16, 2021) is a class action
complaint brought against the Defendant for its alleged violations
of the Americans with Disabilities Act.
The Plaintiff is a visually-impaired and legally blind person who
suffers from what constitutes a "qualified disability" under the
ADA and thus requires screen-reading software to read website
content using her computer.
The Plaintiff claims that she has encountered multiple access
barriers in the Defendant's website, www.readyfresh.com, during her
visit, the last occurring in March 2021, with an intent to browse
and sign up for the Defendant's home-delivery services.
Purportedly, these multiple access barriers effectively barred her
from being able to make any desired purchase, thereby denied her a
shopping experience similar to that of a sighted individual.
The Plaintiff alleges that the Defendant has engaged in acts of
intentional discrimination due to its failure to comply with the
Web Content Accessibility Guidelines 2.1, which would provide her
and other visually-impaired consumers with equal access to the
Website. Specifically, the Defendant failed to design, construct,
maintain, and operate its website to be fully accessible to and
independently usable by her and other blind or visually-impaired
people.
On behalf of herself and other similarly situated visually-impaired
people, the Plaintiff seeks a preliminary and permanent injunction
requiring the Defendant to take all the steps necessary to make its
website into full compliance with the requirements set forth in the
ADA and its implementing regulations. The Plaintiff also seeks
compensatory damages and all applicable statutory and punitive
damages, as well as pre- and post-judgment interest, litigation
costs and expenses together with reasonable attorneys' and expert
fees, and other relief as the Court deems just and proper.
Nestle Waters North America Holdings, Inc. is an online retailer,
specializing in beverage delivery. It owns, operates, manages, ad
controls the website. [BN]
The Plaintiff is represented by:
Jonathan Shalom, Esq.
SHALOM LAW, PLLC
105-13 Metropolitan Avenue
Forest Hills, NY 11375
Tel: (718) 971-9474
E-mail: Jonathan@ShalomLawNY.com
NEW YORK: Faces Human Rights Law Violations Over Background Checks
------------------------------------------------------------------
A former driver for a large transportation company has filed a
lawsuit in the Southern District of New York, alleging violations
of the New York City Human Rights Law (NYCHRL), federal Fair Credit
Reporting Act (FCRA), and New Yorks FCRA.
In this case, the plaintiff, Job Golightly, a resident of New York
City, had been driving for this company since 2014 based on
background checks performed by the New York City Taxi and Limousine
Commission. However, the plaintiffs allege that in 2017 the
transportation company began using a different provider for
additional checks as a result of negative attention caused by
multiple driver assaults.
The case claims that a check on him revealed a misdemeanor speeding
violation committed in 2013. Golightly claims to have been barred
from the platform the next day with no notice.
The NYCHRL requires employers to individually consider every
applicant and current employee's criminal history, supply them with
certain documentation, and provide a waiting period for the
employee to respond. Similarly, both the NY FCRA and FCRA require
an employer to provide notice before taking adverse action, and the
NY FCRA additionally requires an employer to provide a copy of New
York Correction Law Article 23-A.
This is one of the first class-action suits brought against a
company like this since New York City amended the NYCHRL to apply
to independent contractors. Employers should take warning and
ensure their background checks are compliant everywhere they
operate. [GN]
NEW YORK: Faces Lawsuit Over Racial Discrimination, Wage Violations
-------------------------------------------------------------------
Sean Nam at boxingscene.com reports that two former employees of
the New York State Athletic Commission have brought forward a class
action lawsuit against the governmental body that oversees combat
sports on charges of racial discrimination and multiple wage and
hour law violations, BoxingScene.com has learned.
In a 28-page lawsuit filed in the Southern District of New York on
March 5, plaintiffs Dorothea Perry and Jean Seme allege that the
NYSAC denied them minimum wage ($15 per hour in 2018) and withheld
payment for their work as at-will inspectors, including spread of
hours pay and overtime wages.
Also named in the complaint are the executive director of the
NYSAC, Kim Sumbler, and former executive director Anthony Giardina.
(Giardina now serves as commissioner of the New York state Tax
Appeals Tribunal.) Plaintiffs Perry and Seme, who are both Black,
allege that Sumbler and Giardina created a "racially hostile"
working environment. They also allege that Sumbler and Giardina
"willfully" obstructed them from securing certain job promotions
and terminated them on "false pretenses" having to do with their
race.
The defendants allege that on the occasions that they were paid,
they were typically forced to wait at least one to two months for
their paycheck. According to the suit, the defendants are "manual
employees" - a broad category that applies to mechanics and
mailroom workers - meaning that under New York state labor laws
they should have been paid on a weekly basis.
Furthermore, the defendants allege that they were prevented from
taking any meal or restroom breaks while they were on the clock.
Combat sporting events - boxing, MMA, wrestling, et al. - typically
begin at 3 PM and end as late as 2:30 AM the next day, according to
the suit. NYSAC inspectors are responsible for keeping watch over
combat sports participants at all times during live cards,
escorting them throughout the duration of the event, including
ensuring that they are examined by an NYSAC doctor after their
fight.
Perry, who worked as an NYSAC inspector for 14 years, from 2004 to
April 2018, claims she lost her job after Sumbler accused her of
violating a safety protocol that Sumbler had "arbitrarily changed
right before" an event "without any prior notice whatsoever." The
event in question was the Adrien Broner-Jessie Vargas welterweight
bout in April 2018 at the Barclays Center in Brooklyn, which also
featured Gervonta Davis and Jermall Charlo on the undercard. In an
effort to clamp down on reported gang activity at the event
stemming from a social media spat between Broner and rapper
Tekashi69, Sumbler, per the lawsuit, barred any additional guests
from entering the locker rooms of the boxers. But when she
discovered that there were three unidentified people in the locker
room of Davis, the fighter to whom Perry was assigned, Sumbler
"showed her racial animus and bigotry toward black Americans,
according to the suit, which cites an internal office memo that
Sumbler wrote and, in part, reads:
"I saw three large men. . . . in addition to Gervonta Davis's (sic)
camp, and guests. . . . I asked them to leave. . . . There were a
few tense moments where they stared me down then eventually left
without incident. . . . they didn't belong. . . . we were on
heightened security alert because of the threats that were made. .
. . this breach of locker room access placed both [NYSAC deputy
commissioner] Ed Kunkle and me in a very dangerous situation. . . .
Had Dorothea notified Security immediately. . . . we would not have
been put in harm's way."
Despite Sumbler's claim, the suit alleges that none of the boxers -
Broner, Davis, and Charlo - had any "gang affiliations," and that
Perry, or any of the other inspectors, were ever charged with
security duties.
The godmother of former middleweight champion Daniel Jacobs, Perry
claims she was terminated on unlawful retaliatory grounds after she
filed a complaint with the inspector general of New York regarding
the "gender and race based discrimination" against her by Sumbler
and Giardina. More recently, according to a document obtained by
BoxingScene.com, a complaint that Perry lodged with the New York
State Division of Human Rights came back with a probable cause for
discrimination verdict and recommendation for a public hearing.
Perry has a long - and questionable - history of filing internal
complaints with the NYSAC. Over the years, she has registered
multiple discrimination, criminal conduct, and workplace violence
complaints against the NYSAC, including former Executive Director
David Berlin, none of which, according to reporting by Thomas
Hauser, resulted in any finding of wrongdoing. In addition, Perry
had been on the receiving end of numerous complaints regarding her
performance as an inspector: she was found multiples times leaving
fighters unattended and misusing her badge to gain access to the
locker rooms of fighters to whom she was not assigned, according to
Hauser. Outside of boxing, Perry has also filed at least two
lawsuits against her previous private-sector employers, one of
which was dismissed by a judge.
The suit further alleges that Seme, who started with the NYSAC in
2015, was let go in March 2017 on the "false pretext" that he had
made a threat to Sumbler about blowing up a building. According to
the suit, "Sumbler's lie" led her to "weaponize" two state troopers
who showed up several times at Seme's home with "threats of police
action and bodily harm." Seme described being "shocked,
intimidated, and terrorized with the prospect of arrest [. . . . ]
based on patently false allegations."
However, like Perry, Seme also has a patchy record with the NYSAC.
According to Hauser's reporting, Seme once failed to escort a
fighter scheduled to appear on a card at Madison Square Garden, in
2017, to his mandatory pre-fight physical examination, a
potentially life-jeopardizing oversight, given that a fighter could
have been dealing with medical symptoms that would have been
exacerbated by receiving blows to the head. When Seme was asked by
a deputy commissioner if the fighter had received his pre-fight
medical examination, he "misstated the facts and told him 'yes.'"
When it was discovered later that night that Seme had not told the
truth, he was promptly terminated. After the conclusion of the
card, however, Seme was found waiting outside the arena in order to
accost the commissioners. It was in this instance that Sumbler
reportedly heard Seme shout into his cell phone, "These
motherf****** can't do that. I'll kill them all," which triggered
the visits from the state troopers.
Citing emotional anguish and physical decline, the plaintiffs are
seeking both compensatory and punitive damages. [GN]
OKLAHOMA: Emergency Hearing for Cannabis Class Action to Begin
--------------------------------------------------------------
Brooke Griffin at newson6.com reports that an emergency hearing is
being held in the lawsuit of several dispensaries versus the
Oklahoma State Department of Health and the Oklahoma Medical
Marijuana Authority.
The oral arguments in the case begin at 10:30 a.m. in the Okmulgee
County courthouse where a large group of supporters are expected to
be in attendance.
A local law firm filed an application for an emergency temporary
restraining order and injunction against the OMMA and OSDH. This is
a continuation of the class-action lawsuit filed on behalf of about
10,000 state-licensed cannabis businesses in Oklahoma.
The application requests that both departments be restrained from
forcing businesses to comply with the "Seed-to-Sale" program that
will track any product that goes in and out of the state once it's
sold. [GN]
OSCAR RAMIREZ: Denial of Anti-SLAPP Bids in Citizens Suit Reversed
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The Court of Appeals of California, Second District, Division Five,
reversed the orders denying the anti-SLAPP motions in the lawsuit
captioned CITIZENS OF HUMANITY, LLC, et al., Plaintiffs and
Respondents v. OSCAR RAMIREZ, et al., Defendants and Appellants,
Case No. B299469 (Cal. App.).
The Underlying Action
Ana Jimenez was an hourly employee of Oheck, LLC, making clothing
for Citizens of Humanity, LLC. In May 2015, Jimenez brought suit
against Oheck, Citizens of Humanity, and Eric Kweon (collectively,
Oheck) alleging eight causes of action for wage and hour
violations. Jimenez brought this action as an individual and on
behalf of all other employees similarly situated. She also asserted
a claim for civil penalties under the Private Attorney General Act.
She was represented by attorneys from two different law firms:
Kevin Mahoney of Mahoney Law Group, APC; and Oscar Ramirez of Law
Offices of Oscar Ramirez, PC.
On Dec. 4, 2017, Oheck filed a notice of withdrawal of its motion
to strike the class claims. Oheck's motion stated that it withdrew
the motion, "in light of the filing of Plaintiff's Notice of
Settlement of Entire Case on November 20, 2017."
The settlement agreement was executed by all parties and counsel
between Nov. 30 and Dec. 13, 2017. It provided for Oheck to pay
Jimenez $50,000, with $15,000 of the amount to be paid to Jimenez
and the remainder to her attorneys. Jimenez would dismiss her
individual claims with prejudice and the class claims without
prejudice. Dismissal was required before she would receive the
settlement check. Jimenez also released all further claims arising
from her employment.
On Jan. 4, 2018, Jimenez filed a request for dismissal of class
action claims. In it, she sought dismissal of her individual claims
with prejudice, and the class and PAGA claims without prejudice. On
March 9, 2018, the trial court dismissed the class action without
prejudice and Jimenez's individual claims with prejudice.
The Current Action
On Oct. 19, 2018--some seven months later--Oheck filed the current
action against Jimenez and one of her attorneys (Ramirez) who had
represented her in the underlying action. On March 27, 2019, Oheck
filed a Doe amendment naming Attorney Mahoney. The complaint
alleged two causes of action. The first, against Jimenez and the
attorneys, was for malicious prosecution of the underlying action.
The second was against Jimenez alone, seeking sanctions against her
under Code of Civil Procedure section 128.5, for allegedly pursuing
fraudulent workers' compensation claims. This latter cause of
action is not before the Appellate Court on appeal.
As to malicious prosecution, Oheck alleged each element of the
cause of action: First, that the underlying action was pursued
without probable cause, as Jimenez had been properly paid all wages
and had taken all breaks to which she was entitled; and, further,
that Jimenez and her counsel were unaware of any other Oheck
employee who had a viable wage and hour claim. Oheck alleged also
that the underlying action was pursued maliciously, with the
purpose of forcing a settlement unrelated to the merits of the
claims made. On the key element of favorable termination, Oheck's
complaint entirely omitted reference to the settlement.
Instead, Oheck alleged, "on November 7, 2017, Oheck moved to strike
the class claims from the lawsuit, based on overwhelming evidence
that Jimenez's claims were fabricated. Rather than oppose the
motion, Jimenez and her counsel requested dismissal of the class
claims without prejudice. On March 2, 2018, the court granted
Jimenez's request." It would eventually be revealed that Oheck
drafted its complaint in this fashion because it believed the
settlement resolved Jimenez's individual claims only, and it was
attempting to pursue malicious prosecution only of the class
claims.
The Anti-SLAPP Motions
Ms. Jimenez, Attorney Ramirez and Attorney Mahoney each filed
separate anti-SLAPP motions. The motions all argued that (1) the
malicious prosecution action was based on conduct protected by the
anti-SLAPP law, and (2) Oheck could not establish a probability of
prevailing on its cause of action. Specifically, although not
exclusively, they all argued that Oheck could not establish the
"favorable termination" element of malicious prosecution, because
the underlying action was actually resolved by settlement.
Oheck's opposition took the position that Jimenez's class claims
and her individual claims were two different things--and explained
that the action sought recovery for malicious prosecution only of
the class claims. Oheck argued that the settlement agreement
related only to the individual claims and posited that Jimenez and
her counsel had actually decided to voluntarily dismiss the class
claims before settlement was even discussed. In reply, Jimenez and
her counsel all argued that they had dismissed the class claims
pursuant to the settlement.
At the hearing on the anti-SLAPP motions, the court indicated that
Oheck had established a probability of prevailing on the elements
of lack of probable cause and malice. Argument quickly turned to
whether there was evidence of favorable termination, and,
specifically, whether the class claims were encompassed by the
settlement.
The court took the matter under submission. On June 17, 2019, the
court issued its ruling denying the anti-SLAPP motions.
Specifically, it found Oheck had established a prima facie case of
malicious prosecution. As to the heavily disputed element of
favorable termination, the court adopted Oheck's view of the
settlement chronology. The court stated that, after Oheck filed its
motion to strike the class claims, Jimenez and her attorneys did
not oppose that motion, but requested dismissal of the class claims
without prejudice. After they agreed to dismiss the class claims,
the parties resumed discussions regarding settlement of Jimenez's
individual claims. The court concluded that the voluntary dismissal
of the class claims implied that defeat was expected.
Jimenez and her counsel filed timely notices of appeal.
Discussion
Resolution of the appeal turns on whether Oheck has established a
prima face case of the favorable termination element of malicious
prosecution. The parties focus the bulk of their argument on the
factual aspect of this issue, Oheck's position is that it has
demonstrated a "probability of success" under the second prong of
the anti-SLAPP statute (Baral v. Schnitt (2016) 1 Cal.5th 376, 384)
because Jimenez dismissed the class claims unilaterally and
voluntarily in the belief they were meritless, not that the claims
were resolved as part of the settlement agreement.
The Appellate Court believes it is unnecessary to reach this issue.
The Appellate Court concludes that in this precertification class
action, the class claims are not severable from the individual
claims for the purposes of the favorable termination analysis. The
entire action terminated by settlement--a termination, which was
not favorable to Oheck as a matter of law.
An action for malicious prosecution has three required elements:
(1) the defendant brought (or continued to pursue) a claim in the
underlying action without objective probable cause, (2) the claim
was pursued by the defendant with subjective malice, and (3) the
underlying action was ultimately resolved in the plaintiff's favor
(Citizens of Humanity, supra, 46 Cal.App.5th at pp. 598-599.).
Judge Rubin notes that the Panel is concerned with the final
element--that the underlying action was ultimately resolved in
Oheck's favor. This can be seen as implicating two elements:
Termination of the entire action, and termination on the merits,
reflecting innocence of the underlying defendants.
First, favorable termination requires favorable resolution of the
underlying action in its entirety, not merely a single cause of
action, Judge Rubin holds. Second, the action must have been
terminated on a basis, which reflects upon the innocence of the
underlying defendant.
Cases have identified specific types of termination, which are
generally considered favorable and others which are generally
considered unfavorable, Judge Rubin explains. A voluntary dismissal
may or may not constitute a favorable termination. If the voluntary
dismissal is an implicit concession that the dismissing party
cannot maintain the action, it may constitute a dismissal on the
merits which is a favorable termination (JSJ Limited Partnership v.
Mehrban (2012) 205 Cal.App.4th 1512, 1524 (JSJ).)
In contrast, a dismissal on technical or procedural, rather than
substantive, grounds is not considered favorable for purposes of
malicious prosecution, Judge Rubin points out. These include
dismissals for lack of jurisdiction, for lack of standing, to avoid
litigation expenses, or pursuant to settlement. Considering these
elements, Jimenez was partially successful in her action. The case
was resolved by settlement, by which Oheck paid her (and her
counsel) $50,000. Taking Jimenez's action as a whole, as the
Appellate Court must, Oheck cannot establish that it was favorably
terminated, Judge Rubin holds.
Judge Rubin states that Oheck tries to avoid this result by parsing
Jimenez's underlying complaint into two separate actions: her
individual claims and her class claims. Pointing to the disputed
facts surrounding whether the class claims were encompassed by the
settlement, Oheck argues that it has established a probability of
success because the class claims themselves were terminated in its
favor. Judge Rubin insists that the the argument misconstrues the
nature of a class action, and fails on both the "entire action" and
the "on the merits" elements of favorable termination.
As to favorable termination of the entire action, Watkins v.
Wachovia Corp. (2009) 172 Cal.App.4th 1576 establishes that there
is no such thing as a separate class claim, Judge Rubin opines. In
that case, Watkins brought a wage and hour class action. After the
court denied her motion for class certification, she settled her
individual claims, but purported to retain the right to appeal the
denial of certification in her representative capacity.
As in Watkins, Jimenez possessed only a single claim for
relief--her own. She did not also pursue class claims. The class
action was no more than an ancillary procedure. The Appellate
Court, therefore, does not separately consider whether the class
claims were favorably terminated; Jimenez pursued a single claim
for wage and hour violations, which was settled, on terms that
included Oheck's payment of $50,000 to Jimenez.
The Panel reaches the same result when it considers whether the
class claims were resolved on the merits in Oheck's favor, Judge
Rubin notes. Accepting Oheck's argument that the class claims were
unilaterally dismissed, this establishes only a dismissal for
procedural grounds, not on the merits. The class allegations were
voluntarily dismissed without prejudice, and the court impliedly
found the dismissal would not, in fact, prejudice the class
members. Oheck suggests Jimenez voluntarily dismissed the class
claims because she knew Oheck's pending motion to strike the class
claims would be granted. But this does not render the dismissal a
dismissal on the merits.
Judge Rubin opines that he has found no California authority
directly addressing whether a motion to strike class action
allegations addresses the merits. He adds that both paths lead to
the same result for the same reason. A precertification voluntary
dismissal without prejudice of so-called "class claims" cannot
constitute a favorable termination on the merits where, as here,
the defendant agreed to pay the plaintiff a sum in exchange for the
plaintiff's dismissal of her claims.
As the trial court did not rule on Jimenez's anti-SLAPP motion with
respect to the second cause of action in Oheck's complaint against
her, the trial court should consider the issue on remand, Judge
Rubin holds.
Disposition
The orders denying the anti-SLAPP motions are reversed. The matter
is remanded to the trial court with directions to grant in their
entirety the anti-SLAPP motions of Attorney Ramirez and Attorney
Mahoney and to award them attorney's fees under California Code of
Civil Procedure section 425.16, subdivision (c)(1).
As to Jimenez, the matter is remanded with directions to grant the
anti-SLAPP motion to the first cause of action for malicious
prosecution and to rule on Jimenez's anti-SLAPP motion to the
second cause of action for violation of Code of Civil Procedure
section 128.5.
Mr. Ramirez, Mahoney and Jimenez are awarded their costs and
attorney's fees on appeal, in an amount to be set by the trial
court.
BAKER, J. and KIM, J., concurs.
A full-text copy of the Court's Opinion dated April 19, 2021, is
available at https://tinyurl.com/r379jk98 from Leagle.com.
California Anti-SLAPP Project and Mark Goldowitz for Defendants and
Appellants Oscar Ramirez and Law Offices of Oscar Ramirez.
Verum Law Group, Sam K. Kim -- skim@verumlg.com -- and Yoonis J.
Han -- yhan@verumlg.com -- for Defendants and Appellants Kevin
Mahoney and Mahoney Law Group.
Mahoney Law Group, Kevin Mahoney -- kmahoney@mahoney-law.net -- and
Joshua D. Klein -- jklein@mahoney-law.net -- for Defendant and
Appellant Ana Jimenez.
Browne George Ross, Peter W. Ross -- pross@bgrfirm.com -- and
Charles Avrith -- cavrith@bgrfirm.com -- for Plaintiffs and
Respondents.
PAGLIACCI PIZZA: To Pay $3.75M to Settle Delivery Drivers' Lawsuit
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Sara Jean Green at Seattle Times reports that notices were mailed
or emailed to just over 1,000 former and current Pagliacci Pizza
delivery drivers informing them that the Seattle-based company has
settled a class-action lawsuit for $3.75 million to resolve claims
involving wages, tips, breaks and mileage reimbursement, according
to an attorney involved in the years-long litigation.
King County Superior Court Judge Catherine Shaffer has given the
agreement preliminary approval with a final approval hearing
scheduled for July 16, said Toby Marshall of the Terrell Marshall
Law Group, which represents former Pagliacci Pizza driver Steven
Burnett. Provided the judge signs off on the settlement agreement,
delivery drivers can expect a check in the mail in early September,
he said.
The 1,012 current and former delivery drivers who are considered
class members will have until June 15 to exclude themselves from
the class, if they choose, but don't have to take any action to
receive a payment, Marshall said. A 25% share of the settlement
will pay for attorneys' fees and expenses, with the drivers each
receiving an average payout of $2,776, though the highest award
will be just over $25,000, he said.
Pagliacci Pizza and its attorneys "actually took a very hard line
that they didn't do anything wrong," Marshall said. "Our hope is
this is going to be a wake up call to treat their drivers
appropriately under the law."
Pagliacci Pizza co-owner Matt Galvin acknowledged the company
failed to follow state statute for a roughly six-month period in
which customers weren't notified on receipts or menus that no
portion of a then $3 delivery fee went to its drivers, though he
said customers were verbally notified. The company has rectified
that issue.
Also at issue in the lawsuit was that drivers were required to pool
their tips, which were then split with kitchen staff. Galvin said
tip pooling is no longer mandatory and drivers can voluntarily
select a dollar amount or percentage of a tip to share with the
kitchen. He said Pagliacci also conducts regular employee surveys
to ensure staff are properly paid for the hours they work.
Pagliacci delivery drivers earn $33 an hour, on average, in wages
and tips, Galvin said. The company provides health care and a 401K
match, Galvin said, noting drivers typically stay with the company
for five years. He said the pay, benefits and employee longevity
are all atypical of the restaurant industry.
Founded in 1979, Pagliacci has 24 locations and all but one of its
restaurants is in King County. Of the company's 800 employees,
about 340 are delivery drivers, Galvin said.
"I'm very proud of the culture we've built and the kind of
employees we have," he said.
Reaching a settlement agreement allows the company to move on after
nearly four years of litigation, Galvin said.
The company had initially pushed for arbitration, arguing that a
brief mention about arbitration in an employee handbook barred
Burnett from suing in Superior Court, according to court records in
the case. Shaffer, the trial judge, denied the company's motion to
compel arbitration and Pagliacci appealed, first to the state Court
of Appeals and then to the state Supreme Court.
In August 2020, the Supreme Court upheld Shaffer's ruling and
determined Pagliacci's arbitration clause was unenforceable on
numerous grounds, the court records say.
The parties then agreed to mediation and engaged in a day-long
negotiation in January, according to Marshall.
The delivery-fee issue was the plaintiff's strongest claim and 45%
of the settlement will go toward paying damages based on the number
of deliveries each driver made between December 2016 and August
2017, court records show. Another 21% will pay mileage
reimbursement damages; 17% of the settlement will go toward
tip-pooling damages; 9.5% for missed breaks; and 7.5% will be
allocated for credit-card processing fees that were deducted from
drivers' tips, the records say.
Drivers will have 120 days to cash their settlement checks. Any
unclaimed money will be split between Community Passageways and the
Legal Foundation of Washington, according to court records.
Community Passageways is a local nonprofit that creates
alternatives to incarceration for youth and young adults, and
Pagliacci hires its program participants, the records say. The
Legal Foundation of Washington distributes money to legal-aid
organizations across the state to help low-income individuals
involved in civil matters. [GN]
PEKIN, IL: Loses Bid to Dismiss Berardi ADA Suit; Class Certified
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In the lawsuit styled PATRICIA BERARDI; ROBERT CHRISWELL; ALICE
ROSE MARY ORTIZ; AUSTIN CALLOWAY; ELLEN SUNDERLAND; & LISA LYNCH,
as the parent and next friend of M.L., a minor child, individually
and on behalf of themselves and all other persons similarly
situated, Plaintiffs v. CITY OF PEKIN, ILLINOIS; MARK ROTHERT, in
his official capacity as Pekin City Manager, & JOHN MCCABE, JOHN P.
ABEL, MICHAEL GARRISON, MARK LUFT, LLOYD ORRICK, MICHAEL RITCHASON,
& JIM SCHRAMM, in their official capacities as Council Members for
the City of Pekin, Defendants, Case No. 1:18-cv-01438 (C.D. Ill.),
the U.S. District Court for the Central District of Illinois,
Peoria Division:
-- granted the Plaintiffs' Motion to Certify Class; and
-- denied the Defendants' Motion to Dismiss for Lack of
Jurisdiction.
Plaintiffs Patricia Berardi, Robert Chriswell, Alice Rose Mary
Ortiz, Austin Calloway, Ellen Sunderland, and Lisa Lynch, as the
parent and next friend of M.L., a minor child, are residents of the
City of Pekin, Illinois, living with mobility disabilities. The
Defendants are the City of Pekin, Illinois; its City Manager, Mark
Rothert; and its city council members: John McCabe, John P. Abel,
Michael Garrison, Mark Luft, Lloyd Orrick, Michael Ritchason, and
Jim Schramm.
The lawsuit is a putative class action involving alleged violations
of the Americans with Disabilities Act (ADA), 42 U.S.C. Sections
12101, et seq., and the Rehabilitation Act of 1973, 29 U.S.C.
Section 794, et seq.
In a nutshell, the Plaintiffs allege Defendant City of Pekin's
pedestrian rights-of-way are "largely inaccessible to persons with
mobility disabilities" in violation of Title II of the ADA and
Section 504 of the Rehabilitation Act. As a remedy, the Plaintiffs
seek, inter alia, injunctive relief "prohibiting Defendants from
violating the ADA and Rehabilitation Act and compelling each
Defendant to undertake remedial measures to mitigate the effects of
Defendants' past and ongoing violations of the ADA, Rehabilitation
Act, and regulations promulgated thereunder."
The Court understands the lawsuit to assert decades of municipality
policy or inaction have resulted in a public sidewalk system that
cannot be meaningfully or safely accessed by individuals with
mobility disabilities. Specifically, the Plaintiffs' Amended
Complaint alleges the single proposition that, viewed in its
entirety, the Pekin sidewalk system is inaccessible to individuals
with mobility disabilities, thus, denying such individuals the
benefits of a city service (maintenance of pedestrian
rights-of-way) in violation of Title II of the ADA (Count I) and
Section 504 of the Rehabilitation Act (Count II).
The Plaintiffs seek widespread remediation of all noncompliant
pedestrian rights-of-way in the City of Pekin so as to facilitate
citywide ADA compliance. In other words, the relief they seek is
not limited to remedying those particular instances of
noncompliance alleged in the Amended Complaint. It is clear the
Plaintiffs' goal is for the Pekin sidewalk system, when viewed in
its entirety, be considered readily accessible to and usable by
individuals with mobility disabilities, notes Senior District Judge
Joe Billy McDade.
The Defendants, however, frame the Complaint differently, seemingly
describing each individual Plaintiff's and putative class member's
experiences as separate claims for relief as opposed to evidence of
the overarching claim that the Pekin sidewalk system, in general,
is inaccessible to those with mobility disabilities, Judge McDade
opines.
Judge McDade notes that the Defendants' framing of the Plaintiffs'
claims conflates the claims with the facts and evidence necessary
to prevail on those claims. To prevail, the Plaintiffs must of
course identify noncompliant portions of the sidewalk system and
point to enough defects to prove the sidewalk system as a whole is
impermissibly inaccessible. Contrary to Defendants' position,
however, this necessity does not automatically divide the
Plaintiffs' two claims into subclaims that only the identified
defects are subject to this lawsuit nor does the Plaintiffs'
assertion the sidewalk system is noncompliant for a number of
different reasons, such as uneven sidewalks; noncompliant and
nonexistent curb cuts; inaccessible bus stops; and placement of
sewer covers, light poles, fire hydrants, and snow piles.
In short, the Plaintiffs' grievance is not limited to the specific
instances of noncompliance they allege in the Amended Complaint,
Judge McDade states. Even if each of those specific instances of
alleged noncompliance were remedied today, the Plaintiffs could
potentially maintain claims stemming from the alleged systemic,
decades-long failure of the Defendants to bring the Pekin sidewalk
system into compliance with the ADA and Rehabilitation Act. For
these reasons, the Court rejects the Defendants' framing of the
Plaintiffs' claims, which forms the basis of most of their
arguments.
The Defendants argue that constitutional jurisdiction, i.e.
standing, is facially lacking in this case. The Defendants maintain
that the Plaintiffs' request for injunctive relief is a veiled
request that the Court order the Defendants to create the
self-evaluation and transition plans mandated by 28 C.F.R. Sections
35.105, 35.150 and 45 C.F.R. Section 84.22. They argue there is no
private cause of action to enforce these regulations, so the
Plaintiffs lack standing to request the injunctive relief sought in
the Amended Complaint.
The Plaintiffs argue the Defendants misconstrue the injunctive
relief sought. The Court agrees. The language the Defendants quote
for their erroneous construction conveniently omits the immediately
preceding sentence, which requests a preliminary injunction and a
permanent injunction, prohibiting the Defendants from violating the
ADA, and compelling each Defendant to undertake remedial measures
to mitigate the effects of the Defendants' past and ongoing
violations of Title II of the ADA, and regulations promulgated
thereunder, Judge McDade holds.
The only reasonable and logical interpretation of this
language--that the Plaintiffs seek actual remediation and
prospective ADA compliance, not merely a plan to remediate--wholly
defeats the Defendants' argument, Judge McDade opines. The
Defendants offer no argument or authority holding that the
Plaintiffs are precluded from seeking remedial injunctive relief in
this context; in fact, remedial injunctive relief is a type of
remedy typically sought and awarded in similar cases. Accordingly,
the Plaintiffs satisfy the redressability requirement, and
jurisdiction lies. The Motion to Dismiss must, therefore, be
denied.
Class Certification
The Plaintiffs ask the Court to certify a class defined as: All
persons with mobility disabilities who were residents of the city
of Pekin from December 11, 2016 through December 11, 2018 who have
been denied access to pedestrian rights-of-way in the City as a
result of Defendants' policies and practices with regard to the
City's pedestrian rights-of-way and disability access.
The Defendants oppose the Motion to Certify Class because, they
argue, each Plaintiff's and putative class member's individual
claim presents a unique fact-based inquiry, precluding findings of
sufficient definiteness, commonality, predominance, and
superiority. The Defendants also argue the proposed injunctive
relief does not actually remedy the asserted claims.
Judge McDade finds that the four requirements under Rule 23(a) of
the Federal Rules of Civil Procedure--commonality, typicality,
numerosity and adequacy of representation--are satisfied by the
Plaintiffs. The Rule 23(b) requirements are satisfied where the
plaintiffs "seek the same declaratory and[/or] injunctive relief
for everyone." Judge McDade holds that that is exactly what the
Plaintiffs have done. Certification under Rule 23(b)(2) and Rule
23(b)(3) is, therefore, appropriate.
Redaction
As a housekeeping matter, the Plaintiffs are directed to Federal
Rule of Civil Procedure 5.2 for redaction guidance. The pleadings
and documents currently on file redact more than is seemingly
necessary, making it difficult to understand portions of the
Plaintiffs' filings. If the Plaintiffs believe the redactions
mandated by Rule 5.2 are insufficient, they may seek leave to file
under seal where necessary and appropriate.
Conclusion
Accordingly, the Plaintiffs' Motion to Certify Class is granted.
The Court certifies this Class:
All persons with mobility disabilities who were residents of
the City of Pekin from December 11, 2016, through
December 11, 2018, and who were denied meaningful access to
public pedestrian rights-of-way in the City during that
timeframe.
Plaintiffs Patricia Berardi; Robert Chriswell; Alice Rose Mary
Ortiz; Austin Calloway; Ellen Sunderland; and Lisa Lynch, as the
parent and next friend of M.L., a minor child, are designated as
the Class Representatives. These attorneys are designated as the
Class Counsel: Andres J. Gallegos and Jennifer Lundy Sender of
Robbins, Salomon, & Patt LTD and Carl F. Reardon.
The Class is certified as a hybrid class under Rules 23(b)(2) and
23(b)(3). The Plaintiffs are directed to file within 14 days a
memorandum detailing their suggested procedures for notification
and opting out; Defendants may respond with seven days. The Court
will, thereafter, enter an Order pursuant to Rule 23(c)(2).
The Defendants' Motion to Dismiss for Lack of Jurisdiction is
denied.
A full-text copy of the Court's Order & Opinion dated April 19,
2021, is available at https://tinyurl.com/53dhbc5y from
Leagle.com.
PELOTON INTERACTIVE: Bragar Eagel Reminds of June 28 Deadline
-------------------------------------------------------------
Bragar Eagel & Squire, P.C., a nationally recognized shareholder
rights law firm, announces that a class action lawsuit has been
filed in the United States District Court for the Eastern District
of New York on behalf of investors that purchased Peloton
Interactive, Inc. (NASDAQ: PTON) securities between September 11,
2020 to April 16, 2021, inclusive (the "Class Period"). Investors
have until June 28, 2021 to apply to the Court to be appointed as
lead plaintiff in the lawsuit.
Peloton provides interactive fitness products such as the Peloton
Bike and the Peloton Tread+ and Tread, which include touchscreens
that stream live and on-demand classes. Peloton also provides
connected fitness subscriptions and access to all live and on
demand classes
On April 17, 2021, a day the market was closed, the CPSC issued a
press release entitled "CPSC Warns Consumers: Stop Using the
Peloton Tread+" alerting the public to dangers, including death,
associated with the Peloton Tread+.
On April 18, 2021, a day the market was closed, defendant Foley
wrote a letter emailed to Tread+ owners and published on the
Company's website stating that Peloton had "no intention" to stop
selling or to recall the Tread+.
On this news, Peloton's stock price fell $16.28 per share, or more
than 14%, over the next three trading days to close at $99.93 per
share on April 21, 2021.
The complaint, filed on April 29, 2021, alleges that throughout the
Class Period defendants made false and/or misleading statements
and/or failed to disclose that: (1) in addition to the tragic death
of a child, Peloton's Tread+ had caused a serious safety threat to
children and pets as there were multiple incidents of injury to
both; (2) safety was not a priority to Peloton as defendants were
aware of serious injuries and death resulting from the Tread+ yet
did not recall or suggest a halt of the use of the Tread+; (3) as a
result of the safety concerns, the U.S. Consumer Product Safety
Commission ("CPSC") declared the Tread+ posed a serious risk to
public health and safety resulting in its urgent recommendation for
consumers with small children to cease using the Tread+; (4) the
CPSC also found a safety threat to Tread+ users if they lost their
balance; and (5) as a result of the foregoing, defendants'
statements about Peloton's business, operations, and prospects,
were materially false and misleading and/or lacked a reasonable
basis at all relevant times. When the true details entered the
market, the lawsuit claims that investors suffered damages.
If you purchased Peloton securities during the Class Period and
suffered a loss, are a long term stockholder, have information,
would like to learn more about these claims, or have any questions
concerning this announcement or your rights or interests with
respect to these matters, please contact Brandon Walker, Melissa
Fortunato, or Marion Passmore by email at investigations@bespc.com,
telephone at (212) 355-4648, or by filling out this contact form.
There is no cost or obligation to you.
About Bragar Eagel
Bragar Eagel & Squire, P.C. is a nationally recognized law firm
with offices in New York, California, and South Carolina. The firm
represents individual and institutional investors in commercial,
securities, derivative, and other complex litigation in state and
federal courts across the country. For more information about the
firm, please visit www.bespc.com. Attorney advertising. Prior
results do not guarantee similar outcomes.
View source version on businesswire.com:
https://www.businesswire.com/news/home/20210429006204/en/
Contacts
Bragar Eagel & Squire, P.C.
Brandon Walker, Esq.
Melissa Fortunato, Esq.
Marion Passmore, Esq.
(212) 355-4648
investigations@bespc.com
www.bespc.com [GN]
PELOTON INTERACTIVE: Rosen Law Reminds of June 28 Deadline
----------------------------------------------------------
Rosen Law Firm, a global investor rights law firm, announces it has
filed a class action lawsuit on behalf of purchasers of the
securities of Peloton Interactive, Inc. (NASDAQ: PTON) between
September 11, 2020 and April 16, 2021, inclusive (the "Class
Period"). The lawsuit seeks to recover damages for Peloton
investors under the federal securities laws.
To join the Peloton class action, go
http://www.rosenlegal.com/cases-register-2079.htmlor call Phillip
Kim, Esq. toll-free at 866-767-3653 or email pkim@rosenlegal.com or
cases@rosenlegal.com for information on the class action.
According to the lawsuit, defendants throughout the Class Period
made false and/or misleading statements and/or failed to disclose
that: (1) in addition to the tragic death of a child, Peloton's
Tread+ had caused a serious safety threat to children and pets as
there were multiple incidents of injury to both; (2) safety was not
a priority to Peloton as defendants were aware of serious injuries
and death resulting from the Tread+ yet did not recall or suggest a
halt of the use of the Tread+; (3) as a result of the safety
concerns, the U.S. Consumer Product Safety Commission ("CPSC")
declared the Tread+ posed a serious risk to public health and
safety resulting in its urgent recommendation for consumers with
small children to cease using the Tread+; (4) the CPSC also found a
safety threat to Tread+ users if they lost their balance; and (5)
as a result of the foregoing, defendants' statements about
Peloton's business, operations, and prospects, were materially
false and misleading and/or lacked a reasonable basis at all
relevant times. When the true details entered the market, the
lawsuit claims that investors suffered damages.
A class action lawsuit has already been filed. If you wish to serve
as lead plaintiff, you must move the Court no later than June 28,
2021. A lead plaintiff is a representative party acting on behalf
of other class members in directing the litigation. If you wish to
join the litigation, go to
http://www.rosenlegal.com/cases-register-2079.htmlor to discuss
your rights or interests regarding this class action, please
contact Phillip Kim, Esq. of Rosen Law Firm toll free at
866-767-3653 or via e-mail at pkim@rosenlegal.com or
cases@rosenlegal.com.
NO CLASS HAS YET BEEN CERTIFIED IN THE ABOVE ACTION. UNTIL A CLASS
IS CERTIFIED, YOU ARE NOT REPRESENTED BY COUNSEL UNLESS YOU RETAIN
ONE. YOU MAY RETAIN COUNSEL OF YOUR CHOICE. YOU MAY ALSO REMAIN AN
ABSENT CLASS MEMBER AND DO NOTHING AT THIS POINT. AN INVESTOR'S
ABILITY TO SHARE IN ANY POTENTIAL FUTURE RECOVERY IS NOT DEPENDENT
UPON SERVING AS LEAD PLAINTIFF.
Rosen Law Firm represents investors throughout the globe,
concentrating its practice in securities class actions and
shareholder derivative litigation. Rosen Law Firm was Ranked No. 1
by ISS Securities Class Action Services for number of securities
class action settlements in 2017. The firm has been ranked in the
top 4 each year since 2013. Rosen Law Firm has achieved the largest
ever securities class action settlement against a Chinese Company.
Rosen Law Firm's attorneys are ranked and recognized by numerous
independent and respected sources. Rosen Law Firm has secured
hundreds of millions of dollars for investors. Attorney
Advertising. Prior results do not guarantee a similar outcome.
View source version on
businesswire.com:https://www.businesswire.com/news/home/20210429006027/en/
CONTACT:
Laurence Rosen, Esq.
Phillip Kim, Esq.
The Rosen Law Firm, P.A.
275 Madison Avenue, 40thFloor
New York, NY 10016
Tel: (212) 686-1060
Toll Free: (866) 767-3653
Fax: (212) 202-3827
lrosen@rosenlegal.com
pkim@rosenlegal.com
cases@rosenlegal.com
www.rosenlegal.com[GN]
PINTEREST INC: Glancy Prongay Discloses Securities Class Action
---------------------------------------------------------------
Glancy Prongay & Murray LLP ("GPM"), announces that it has filed a
class action lawsuit in the United States District Court for the
Northern District of California captioned LeMoure v. Pinterest,
Inc., et al., (Case No. 3:21-cv-03181) on behalf of persons and
entities that purchased or otherwise acquired Pinterest, Inc.
("Pinterest" or the "Company") (NYSE: PINS) securities between
February 4, 2021 and April 27, 2021, inclusive (the "Class
Period"). Plaintiff pursues claims under Sections 10(b) and 20(a)
of the Securities Exchange Act of 1934 (the "Exchange Act").
Investors are hereby notified that they have 60 days from this
notice to move the Court to serve as lead plaintiff in this
action.
If you suffered a loss on your Pinterest investments or would like
to inquire about potentially pursuing claims to recover your loss
under the federal securities laws, you can submit your contact
information at https://www.glancylaw.com/cases/pinterest-inc/. You
can also contact Charles H. Linehan, of GPM at 310-201-9150,
Toll-Free at 888-773-9224, or via email at
shareholders@glancylaw.com or visit our website at
www.glancylaw.com to learn more about your rights.
Pinterest operates a platform that purports to provide inspiration
for its users' lives. Monthly active users ("MAUs") are the number
of Pinterest users who interact with Pinterest at least once during
the 30-day period ending on the date of measurement.
On April 27, 2021, after the market closed, Pinterest announced its
first quarter 2021 financial results and reported that global
monthly active users grew only 30% year-over-year to 478 million, a
decline from the prior quarter's 37% year-over-year growth. During
the conference call held the same day, Pinterest's Chief Executive
Officer stated that "[a]s pandemic lockdowns were eased in some
parts of the world during mid-March, we began to see signs of less
engagement and user growth on Pinterest."
On this news, the Company's share price fell $11.25, or 14.5%, to
close at $66.33 per share on April 28, 2021, on unusually heavy
trading volume.
The complaint filed in this class action alleges that throughout
the Class Period, Defendants made materially false and/or
misleading statements, as well as failed to disclose material
adverse facts about the Company's business, operations, and
prospects. Specifically, Defendants failed to disclose to
investors: (1) that user growth was already slowing; (2) that, as a
result, the Company expected user engagement to slow in the second
quarter of 2021; and (3) that, as a result, Defendants' statements
about its business, operations, and prospects were materially false
and misleading and/or lacked reasonable basis at all relevant
times.
If you purchased or otherwise acquired Pinterest securities during
the Class Period, you may move the Court no later than 60 days from
this notice to ask the Court to appoint you as lead plaintiff. To
be a member of the Class you need not take any action at this time;
you may retain counsel of your choice or take no action and remain
an absent member of the Class. If you wish to learn more about this
action, or if you have any questions concerning this announcement
or your rights or interests with respect to these matters, please
contact Charles Linehan, Esquire, of GPM, 1925 Century Park East,
Suite 2100, Los Angeles California 90067 at 310-201-9150, Toll-Free
at 888-773-9224, by email to shareholders@glancylaw.com, or visit
our website at www.glancylaw.com. If you inquire by email please
include your mailing address, telephone number and number of shares
purchased.
This press release may be considered Attorney Advertising in some
jurisdictions under the applicable law and ethical rules.
View source version on businesswire.com:
https://www.businesswire.com/news/home/20210429006130/en/
Contacts
Glancy Prongay & Murray LLP, Los Angeles
Charles H. Linehan, 310-201-9150 or 888-773-9224
1925 Century Park East, Suite 2100
Los Angeles, CA 90067
www.glancylaw.com
shareholders@glancylaw.com [GN]
PIONEER NATURAL: Cook Foundation Seeks to Recover Gas Royalties
---------------------------------------------------------------
COOK CHILDREN'S HEALTH FOUNDATION a/k/a W.I. COOK FOUNDATION, INC.,
on behalf of itself and a class of similarly situated persons, v.
PIONEER NATURAL RESOURCES COMPANY, Case No. 7:21-cv-00065 (W.D.
Tex., April 13, 2021) seeks to recover actual damages, including
pre-judgment and post-judgment interest at the highest rate allowed
by law or equity, for the Defendant's breach of oil and gas leases
to pay royalties to Plaintiff and members of the Class for natural
gas "used off the lease."
The Plaintiff is the successor-in-interest Lessor, and Defendant is
the successor-in-interest Lessee under the leases. Defendant is
the operator of the XBC-Unruh 3A 16H, XBC-Unruh 3B 17H,
XBC-Caroline 3L 312H, XBC-Caroline 3M 313H, XBC-Caroline 3B 302H,
and XBC-Caroline 3C 303H wells on the leases.
The gas royalty clause requires royalty to be paid on gas used off
the leased premises ("Off Lease Use of Gas" or "OLUG").
Plaintiff's Lease and the members of the Class's leases contain an
OLUG royalty clause, or an on-lease free use clause, or both,
expressing provisions requiring Defendant to pay royalty on OLUG.
Although the Lease and the members of the Class's leases expressly
provide for the payment of royalty on OLUG, Defendant does not do
so, asserts the complaint.
Defendant concealed the systematic underpayment of royalty from
Plaintiff and the members of the Class by falsely representing on
the check stubs provided monthly to Plaintiff and the members of
the Class that Defendant was paying royalty on the full volume and
value of production from their wells, when in fact, it was not,
says the complaint.
Pioneer Natural Resources Company operates as an independent oil
and gas exploration and production company. The Company engages in
onshore oil and gas drilling, exploration, and production in the
United States.[BN]
The Plaintiff is represented by:
David J. Drez III,Esq.
WICK PHILLIPS GOULD & MARTIN LLP
100 Throckmorton Street, Suite 1500
Fort Worth, TX 76102
Telephone: (817) 332-7788
Facsimile: (817) 332-7789
E-mail: david.drez@wickphillips.com
- and -
Rex A. Sharp, Esq.
Ryan C. Hudson, Esq.
Scott B. Goodger, Esq.
5301 West 75th Street
Prairie Village, KS 66208
Telephone: (913) 901-0505
Facsimile: (913) 901-0419 fax
E-mail: rsharp@midwest-law.com
rhudson@midwest-law.com
sgoodger@midwest-law.com
PROCTER & GAMBLE: Parks Sues Over Toothpaste's Deceptive Ad
-----------------------------------------------------------
ERICA PARKS and DANIEL T. DURGIN, on behalf of themselves and
others similarly situated, v. THE PROCTER & GAMBLE COMPANY, Case
No. 1:21-cv-00258-MWM (S.D. Ohio, April 13, 2021) arises from the
Defendant's false advertising, unfair and deceptive marketing
practices, negligent misrepresentations and materially misleading
claims and omissions in connection with its dental products
containing activated charcoal.
Procter & Gamble is the parent company of Crest, which sells oral
care products containing activated charcoal, including the
following products: Crest 3D White Whitening Therapy Toothpaste --
Charcoal, Crest 3DWhite Toothpaste Charcoal with Hemp Seed Oil,
Crest Gum Detoxify Charcoal Toothpaste, Crest Gum and Sensitivity
Charcoal Toothpaste, Crest 3D White, Whitening Toothpaste Charcoal,
Brilliance Charcoal Toothpaste, Crest 3D White Whitening Therapy
with Ginger Oil, and Crest 3D White Whitening Therapy with Tea Tree
Oil.
Crest promotes the Charcoal Toothpastes as whitening, cleansing,
gentle, detoxifying, penetrating, enamel-safe, and cavity-fighting.
Multiple claims are printed on the product packaging and tube
labels of the Charcoal Toothpastes. Crest makes the same and
similar claims of whitening effects, detoxifying properties,
gentleness, and other benefits of its Charcoal Toothpastes.
Crest, a household brand name established in 1955, also promotes
itself as a brand to be trusted and relied upon by consumers in
connection with their decision-making as to oral health and dental
hygiene maintenance.
However, any success experienced by Crest with regard to the
Charcoal Toothpastes sold has been built around messaging that is
materially misleading and deceptive to consumers, lacks a factual
basis, and negligently and recklessly omits material information
concerning the use of charcoal in oral care, the suit says.
For the alleged violations of state statutory law and common law,
Plaintiffs seek, on behalf of themselves and the members of the
Class, to recover compensatory and statutory damages, treble or
punitive damages as available, attorneys' fees and costs, as well
as declaratory and injunctive relief.
The Procter & Gamble Company is an American multinational consumer
goods corporation headquartered in Cincinnati, Ohio.[BN]
The Plaintiff is represented by:
Brian D. Flick, Esq.
Marc E. Dann, Esq.
DannLaw
P.O. Box 6031040
Cleveland, OH 44103
Telephone: (216) 373-0539
Facsimile: (216) 373-0536
E-mail: notices@dannlaw.com
PROJECT RENEWAL: Class Settlement in Price Suit Has Prelim. Nod
---------------------------------------------------------------
In the case, QUASHAWN PRINCE, Plaintiff v. PROJECT RENEWAL, INC.,
Defendant, Docket No. 160708/2019, Motion Seq. No. 001 (N.Y.),
Judge Laurence L. Love of the U.S. Supreme Court of New York County
grants the Plaintiffs' Motion for Preliminary Approval of the Joint
Settlement and Release, Certification of the Class for Settlement
Purposes, Appointment of the Named Plaintiff, Quashawn Prince, as
Class Representative, Appointment of Bouklas Gaylord LLP as Class
Counsel, Approval of the Class Notice and Claim Form, and the
Scheduling of a Fairness Hearing.
Based upon his review of the Memorandum of Law in Support of
Plaintiffs' Motion for Preliminary Approval of Settlement and the
Affirmation of Mark Gaylord, Esq., and the exhibits attached
thereto, Judge Love grants preliminary approval of the settlement
memorialized in the Joint Stipulation Settlement and Release,
attached to the Affirmation of Mark Gaylord as Exhibit A. He
concludes that the proposed Settlement Agreement is within the
range of possible settlement approval, such that notice to the
Class is appropriate. The Judge finds that the Settlement
Agreement is the result of extensive, arms'-length negotiations by
counsel well-versed in the prosecution of wage and hour class
actions, and that the proposed settlement has no obvious
deficiencies.
The Judge finds that the action satisfies all of the prerequisites
of New York Civil Practice Law and Rules ("CPLR") Section 901, and
that consideration of the CPLR Section 902 factors support
certification for purposes of settlement. He provisionally
certifies the following class under Article 9 of the CPLR, for
settlement purposes only ("Settlement Class"): Named Plaintiff and
All current and former employees who worked for Defendant in the
State of New York from Nov. 4, 2013 through March 13, 2020 who were
required as a condition of their employment to wear uniforms; were
not offered laundering services for the required uniforms; and did
not receive sufficient wages to excuse the Defendant from providing
uniform maintenance pay or reimbursement.
The Judge appoints Bouklas Gaylord LLP as the Class Counsel and
Plaintiff Quashawn Prince as the class representative. He approves
the proposed Plaintiffs Notice of Proposed Settlement of Class
Action Lawsuit and Fairness Hearing, attached as Exhibit B to the
Affirmation of Mark Gaylord, and directs its distribution to the
Class. He approves the Claim Form and Individual Release attached
as Exhibit C to the Affirmation of Mark Gaylord, and directs its
distribution to the Class.
Judge Love adopts the following settlement procedure:
a. Within 30 days after the Court issues its Order Granting
Preliminary Approval, the Settlement Administrator will mail, via
First Class United States mail, postage prepaid, the court-approved
Class Notice and Claim Form to all the Settlement Class Members.
b. The Settlement Class members will have 60 calendar days
after the date the Class Notice and the Claim Form is mailed to
submit a Claim Form, a current IRS Form W-4, and a current IRS Form
W-9 or to request exclusion from the Settlement Class.
c. The Settlement Class members will have 60 calendar days
after the date the Class Notice is mailed to object to the
Settlement.
d. The Class Counsel will file a Motion for Final Approval by
Aug. 16, 2021.
e. The Court will hold a final Fairness Hearing on Sept. 20,
2021, at 10:00 am, at the Supreme Court of the State of New York,
County of New York, located at 80 Centre Street, in New York City,
in courtroom 122 or via Microsoft Teams, if necessary.
A full-text copy of the Court's April 21, 2021 Decision + Order is
available at https://tinyurl.com/tcu9ac7m from Leagle.com.
RCI HOSPITALITY: Lifshitz Announces Securities Class Action
-----------------------------------------------------------
RCI Hospitality Holdings, Inc. (NasdaqGM: RICK)
Lifshitz Law Firm, P.C. announces that on March 31, 2021, the Court
issued an Order denying Defendants' Motion to Dismiss a putative
class action complaint alleging that the Company and certain
officers made misleading statements, as well as failed to disclose
material adverse facts about the Company's business, operations,
and prospects. Specifically, the Complaint alleges Defendants
failed to disclose to investors: (1) that the Company engaged in
numerous transactions with the CEO, including lending him
significant sums of money; (2) that these practices were reasonably
likely to lead to regulatory scrutiny of the Company; (3) that, as
a result of investigations into the Company's governance, the
Company would be unable to timely file its financial statements;
and (4) that, as a result of the foregoing, Defendants' positive
statements about the Company's business, operations, and prospects
were materially false and/or misleading and/or lacked a reasonable
basis.
If you are an RICK investor, and would like additional information
about our investigation, please complete the Information Request
Form or contact Joshua Lifshitz, Esq. by telephone at (516)493-9780
or e-mail at info@jlclasslaw.com.
ATTORNEY ADVERTISING.(C) 2021 Lifshitz Law Firm, P.C. The law firm
responsible for this advertisement is Lifshitz Law Firm, P.C. LLP,
1190 Broadway, Hewlett, New York 11557, Tel: (516)493-9780. Prior
results do not guarantee or predict a similar outcome with respect
to any future matter.
Contact:
Joshua M. Lifshitz, Esq.
Lifshitz Law Firm, P.C.
Phone: 516-493-9780
Facsimile: 516-280-7376
Email: jml@jlclasslaw.com [GN]
RESTIGOUCHE HOSPITAL: Judge to Decide if Negligence Suit Will Go On
-------------------------------------------------------------------
Shane Magee at CBC News reports that a judge says she will decide
before Labour Day whether a proposed class action lawsuit alleging
decades of negligence and mistreatment at the Restigouche Hospital
Centre can proceed.
A statement of claim naming the New Brunswick government and
Vitalite Health Network as defendants was filed in May 2019 on
behalf of all patients who have resided or been treated at the
facility in Campbellton since 1954. It seeks $500 million in
damages.
The claim alleges the province and health authority were negligent
in operation of the psychiatric facility. It also alleges breaches
of section 15 of the Canadian Charter of Rights and Freedoms. That
section protects people with a mental disability, among other
groups, from discrimination.
Court of Queen's Bench Justice Tracey DeWare presided over a
three-day certification hearing in Moncton. The hearing is a
procedural step to determine if the case continues to trial. DeWare
told lawyers involved in the case that she will take several months
to examine the 25,000 to 30,000 pages of documents filed so far and
write her decision.
"This will obviously take a while," DeWare said.
She told the lawyers she will have a decision sometime before
Labour Day.
Darrell Tidd and Reid Smith are the representative plaintiffs in
the proposed class action. They are fathers and litigation
guardians for their sons, Devan Tidd and Aaron Smith, who are
patients at the hospital.
The hearing began with James Sayce, the lawyer for the plaintiffs
laying out why the case should be certified. Lawyers for the
province and health authority argued why it shouldn't be
certified.
Denis Theriault, a lawyer representing the provincial government,
said a class action isn't the proper mechanism for the allegations,
saying there aren't enough common issues with those who have
resided at the facility over several decades.
The province argued that Vitalite operates the facility and the
province isn't responsible for its policies and day-to-day
operations.
Sayce offered a response to the defendant's arguments before the
hearing ended.
"What the defendants are really saying here is that they don't
think it's fair that they should answer for their misdeeds," he
said.
He said the position ignores people allegedly harmed going back
decades at the facility.
Lawyer Talia Profit, representing Vitalite, said that a decision in
the case to award the $500-million sought by the class action would
harm the health authority's efforts to improve care at Restigouche
and pay for its other health facilities in the province.
The case was filed after Ombud Charles Murray issued a report that
found "significant mistreatment" of patients at the facility and
safety risks to patients and staff. It found chronic under-staffing
at the hospital. [GN]
ROMEO POWER: Bragar Eagel Reminds Investors of June 15 Deadline
---------------------------------------------------------------
Bragar Eagel & Squire, P.C., a nationally recognized shareholder
rights law firm, reminds investors that a class action has been
commenced on behalf of stockholders of Intrusion, Inc. (NASDAQ:
INTZ), LifeMD, Inc. (NASDAQ: LFMD), Romeo Power, Inc. (NYSE: RMO),
and Acadia Pharmaceuticals, Inc. (NASDAQ: ACAD). Stockholders have
until the deadline below to petition the court to serve as lead
plaintiff. Additional information about the case can be found at
the link provided.
Romeo Power, Inc. (NYSE: RMO)
Class Period: October 5, 2020 to March 30, 2021
Lead Plaintiff Deadline: June 15, 2021
On February 12, 2019, RMG Acquisition Corp. ("RMG"), a New York
City based special purpose acquisition company, or SPAC, announced
that it closed its initial public offering of 20 million units at
$10 per share, resulting in gross proceeds of $200 million.
On October 5, 2020, RMG announced a definitive agreement for a
business combination with defendant Romeo that would result in
Romeo becoming a publicly listed company. Upon closing of the
transaction, the combined entity would be named Romeo Power, Inc.
and would remain listed on the NYSE and trade under the new ticker
symbol "RMO" and its warrants would trade under the new symbol
"RMO.WT".
On March 30, 2021, Romeo issued a press release and filed a report
with the SEC on Form 8-K that disclosed its financial results for
the quarter and year ended December 31, 2020, and conducted a
conference call with investors and analysts. Defendants shocked
investors by disclosing that the Company's production had been
hampered by a shortage in supply of battery cells and that its
estimated 2021 revenue would therefore be reduced by approximately
71-87%.
On March 31, 2021, Romeo shares declined from a closing price on
March 30, 2021 of $10.37 per share to close at $8.33 per share, a
decline of $2.04 per share, or almost 20%.
The complaint, filed on April 16, 2021, alleges that unknown to
investors, Romeo was suffering from an acute shortage of high
quality battery cells, which are key raw materials for Romeo's
battery packs and modules, due to supply constraints. Contrary to
defendants' representations, (i) Romeo had only two battery cell
suppliers, not four, (ii) the future potential risks that
defendants warned of concerning supply disruption or shortage had
already occurred and were already negatively affecting Romeo's
business, operations and prospects, (iii) Romeo did not have the
battery cell inventory to accommodate end-user demand and ramp up
production in 2021, (iv) Romeo's supply constraint was a material
hindrance to Romeo's revenue growth, and (v) Romeo's supply chain
for battery cells was not hedged, but in fact, was totally at risk
and beholden to just two battery cell suppliers and the spot market
for their 2021 inventory. Given the supply constraint that Romeo
was experiencing during the Class Period, defendants had no
reasonable basis to represent that the Company had the ability to
meet customer demand and that it would support growth in revenue in
2021.
For more information on the Romeo Power class action go to:
https://bespc.com/cases/RMO
About Bragar Eagel & Squire
Bragar Eagel & Squire, P.C. is a nationally recognized law firm
with offices in New York, California, and South Carolina. The firm
represents individual and institutional investors in commercial,
securities, derivative, and other complex litigation in state and
federal courts across the country. For more information about the
firm, please visit www.bespc.com. Attorney advertising. Prior
results do not guarantee similar outcomes.
Contact Information:
Bragar Eagel & Squire, P.C.
Brandon Walker, Esq.
Melissa Fortunato, Esq.
Marion Passmore, Esq.
(212) 355-4648
investigations@bespc.com
www.bespc.com [GN]
ROMEO POWER: Howard G. Smith Reminds Investors of June 15 Deadline
------------------------------------------------------------------
Law Offices of Howard G. Smith announces that a class action
lawsuit has been filed on behalf of investors who purchased Romeo
Power Inc. f/k/a RMG Acquisition Corp. (Romeo or the Company)
(NYSE: RMO) securities between October 5, 2020 and March 30, 2021,
inclusive (the Class Period). Romeo investors have until June 15,
2021 to file a lead plaintiff motion.
Investors suffering losses on their Romeo investments are
encouraged to contact the Law Offices of Howard G. Smith to discuss
their legal rights in this class action at 888-638-4847 or by email
to howardsmith@howardsmithlaw.com.
On March 30, 2021, Romeo announced that, as a result of a
significant supply shortage of battery cells, its fiscal 2021
revenue guidance would be reduced by 71-87%. During a related
conference call, the Company revealed that it relied solely on
Samsung and LG for its supply of power cells, not four different
cell suppliers as Romeo had previously stated.
On this news, the Companys stock price fell $2.04 per share, or
19.7%, to close at $8.33 per share on March 31, 2021, thereby
injuring investors.
The complaint filed in this class action alleges that throughout
the Class Period, Defendants made materially false and/or
misleading statements, as well as failed to disclose material
adverse facts about the Companys business, operations, and
prospects. Specifically, Defendants failed to disclose to investors
that: (1) Romeo Power had only two battery cell suppliers, not
four; (2) the future potential risks that defendants warned of
concerning supply disruption or shortage had already occurred and
were already negatively affecting Romeo Powers business, operations
and business prospects; (3) Romeo Power did not have the battery
cell inventory to accommodate end-user demand and ramp up
production in 2021; (4) Romeo Powers supply constraint was a
material hindrance to Romeo Powers revenue growth; and (5) Romeo
Powers supply chain for battery cells was not hedged, but in fact,
was totally at risk and beholden to just two battery cell suppliers
and the spot market for their 2021 inventory; and (6) as a result,
Defendants positive statements about the Companys business,
operations, and prospects were materially misleading and/or lacked
a reasonable basis at all relevant times.
If you purchased Romeo securities, have information or would like
to learn more about these claims, or have any questions concerning
this announcement or your rights or interests with respect to these
matters, please contact Howard G. Smith, Esquire, of Law Offices of
Howard G. Smith, 3070 Bristol Pike, Suite 112, Bensalem,
Pennsylvania 19020, by telephone at (215) 638-4847, toll-free at
(888) 638-4847, or by email to howardsmith@howardsmithlaw.com, or
visit our website at www.howardsmithlaw.com.
This press release may be considered Attorney Advertising in some
jurisdictions under the applicable law and ethical rules. [GN]
ROMEO POWER: Kaskela Law Reminds Investors of June 15 Deadline
--------------------------------------------------------------
Kaskela Law LLC announces that a shareholder class action lawsuit
has been filed against Romeo Power Inc. ("Romeo" or the "Company")
(NYSE: RMO), formerly known as RMG Acquisition Corp. ("RMG") (NYSE:
RMG), on behalf of investors who purchased or acquired RMO or RMG
securities between October 2, 2020 and March 2, 2021 (the "Class
Period").
IMPORTANT DEADLINE: Investors who purchased Romeo's securities
during the Class Period may, no later than June 15, 2021, seek to
be appointed as a lead plaintiff representative in the action.
Romeo investors who suffered an investment loss in excess of
$100,000 are encouraged to contact Kaskela Law LLC (D. Seamus
Kaskela, Esq.) at (484) 258-1585, or by email at
skaskela@kaskelalaw.com or online at
https://kaskelalaw.com/case/romeo-power-inc/, to discuss the
opportunity to actively participate in the action as a lead
plaintiff representative.
On October 5, 2020, RMG announced a definitive agreement for a
business combination with Romeo that would result in Romeo becoming
a publicly listed company. According to the complaint, during the
Class Period the defendants represented that Romeo estimated
revenue of $11 million for 2020, and estimated revenue of $140
million for 2021. Defendants further represented that Romeo had
"key partnerships" and close relationships with LG Chem, Samsung,
Murata and SK Innovation, which manufacture battery cells, a key
component in Romeo's battery modules and packs and that they were
supplying Romeo with battery cells. Furthermore, Defendants
represented that Romeo had the capacity and supply to meet end-user
demand for Romeo's products, that Romeo was not beholden "to any
level of the value chain", that its supply was hedged, and that it
did not see any material challenges that would hamper growth. On
December 29, 2020, Romeo announced that it completed its business
combination with RMG.
Further according to the complaint, "unknown to investors, Romeo
was suffering from an acute shortage of high quality battery cells,
which are key raw materials for Romeo's battery packs and modules,
due to supply constraints." Then, on March 30, 2021, Romeo "shocked
investors by disclosing that the Company's production had been
hampered by a shortage in supply of battery cells and that its
estimated 2021 revenue would therefore be reduced by approximately
71-87%." Following this news, shares of the Company's stock fell
$2.04 per share, or nearly 20% in value, to close at $8.33 on March
31, 2021.
Romeo investors who suffered an investment loss in excess of
$100,000 are encouraged to contact Kaskela Law LLC to discuss the
opportunity to actively participate in the action as a lead
plaintiff representative.
Kaskela Law LLC exclusively represents investors in securities
fraud, corporate governance, and merger & acquisition litigation.
For additional information about Kaskela Law LLC please visit
www.kaskelalaw.com. [GN]
RUSSIA: Protesters File Detainees Class-Action Lawsuit
------------------------------------------------------
April 29, Moscow's Zamoskvoretsky Court will receive a class-action
lawsuit against the Russian Interior Ministry demanding
compensation for the inhumane conditions in the Sakhorovo special
detention center, reports Kommersant.
The 20 plaintiffs behind the claim were arrested during this
winter's rallies in support of jailed Kremlin critic Alexey
Navalny. The protesters were sent to the special detention center
in Sakhorovo, a village on the outskirts of Moscow, to serve out
administrative sentences.
The lawsuit lists upwards of ten violations of the detainees'
rights while they were in official custody, including violations of
human dignity, and a lack of medical care, hygiene products, and
places to sleep.
Each of the plaintiffs is seeking 90,400 rubles (approximately
$1,200) in damages, which brings the claim's total amount to 1.8
million rubles (about $24,000).
According to the plaintiffs' lawyer, Dmitry Piskunov from OVD-Info,
the rights group received complaints about the inhumane conditions
at the Sakhorovo detention center from a total of 213 people who
were arrested at the protests. Had all of these people joined the
class-action suit, the Interior Ministry would have faced a
19-million-ruble ($255,000) claim. [GN]
TAINAN, TAIWAN: Suit Rejected on Building Collapse in 2016 Quake
----------------------------------------------------------------
focustaiwan.tw reports that a class-action lawsuit, brought by
residents of a housing complex that collapsed during a 2016
earthquake in Tainan, was thrown out by the city's district court.
In its ruling, the Tainan District Court said it had seen no
evidence of wrongdoing on the part of the city's public works
department, which had issued the licenses for construction of the
Weiguan Jinlong residential building.
The 16-story complex, which was located in Tainan's Yongkang
District, collapsed during a magnitude 6.4 earthquake that struck
southern Taiwan on Feb. 6, 2016, killing 117 people and injuring
504.
After the tragedy, 29 Weiguan Jinlong residents who survived the
quake brought a lawsuit against the Tainan public works department,
seeking damages of NT$278.9 million (US$9.9 million).
The court rejected the suit, however, saying that the public works
department was not at fault, either in the area of issuing the
building licenses or conducting inspections during the construction
of the building complex, as argued by the plaintiffs.
It was one of six civil lawsuits brought before the courts in
connection with the collapse of the building, in which all but two
of the total earthquake deaths occurred and the injured numbered
104.
To date, a total of NT$1.22 billion has been awarded in three of
the cases brought against individuals and companies.
In a criminal case in November 2016, Lin Ming-hui, the owner of the
now-defunct Weiguan Corp. that had built the housing complex in
1993, and four other defendants were found guilty of negligent
homicide and each sentenced to five years in prison.
The five defendants were deemed responsible for the poor design and
construction of the building and for the use of inferior materials
to cut costs. As a result, the building could not sustain the
impact of the quake and collapsed, leading to heavy casualties, the
court said in its ruling. [GN]
TUCSON UNIFIED: Bid for Unitary Status in Fisher Suit Partly OK'd
-----------------------------------------------------------------
The U.S. District Court for the District of Arizona issued an order
granting in part the Supplemental Petition for Unitary Status in
the lawsuit titled Roy and Josie Fisher, et al., Plaintiffs, and
United States of America, Plaintiff-Intervenor v. Tucson Unified
School District, et al., Defendants, Maria Mendoza, et al.,
Plaintiffs, and United States of America, Plaintiff-Intervenor v.
Tucson Unified School District, et al., Defendants, Case Nos.
CV-74-00090-TUC-DCB, CV-74-0204-TUC-DCB (D. Ariz.).
History
In 1974, two class action lawsuits were filed alleging segregation
in TUSD between White students and African-American students
(Fisher Plaintiffs), CV 74-90 TUC DCB, and Mexican-American
students (Mendoza Plaintiffs), CV 74-204 TUC DCB. The cases were
consolidated in 1975 and went to trial in 1977.
In 1978, the Court found that de jure discriminatory segregation
existed in TUSD. Regardless of the fact that only Black students
were statutorily prohibited from attending White schools, Judge
Frey found that even as the District dismantled the 'dual Black and
White school system and, thereafter, there existed some intentional
segregation of minority students (Black and Mexican-American) from
Anglo-students,'" (Fisher v. TUSD, 652 F.3d 1131, 9781 n.9 (9th
Cir. 2011)). Judgment was entered for the Plaintiffs.
Instead of proceeding on appeal, the parties entered into a
Settlement Agreement to resolve the consolidated case. The 1978
Settlement Agreement provided for TUSD to implement its proposed
desegregation plans in a number of specified schools, cooperate
with parents to develop and examine future student assignment
policies at several additional schools, and eliminate
discrimination in faculty assignments, employee training, and in
polices on bilingual education, testing, and discipline. The
Settlement Agreement prohibited TUSD from engaging in any acts or
polices which deprive any student of equal protection of the law'
based on race or ethnicity.
The District was supposed to operate for five years under the terms
of the Settlement Agreement before TUSD could file a motion to
dissolve it. Around the end of this period, in 1983, the Arizona
State Legislature enacted a funding provision, A.R.S. Section
15-910G, to allow school districts operating under court orders to
generate additional tax revenues above and beyond educational
spending limitations to pay for desegregation activities. By and
large the express provisions of the Settlement Agreement had been
implemented within the five-year period, but the case did not end.
Instead, TUSD spent millions of dollars over the course of
approximately 20 years before the Court called for TUSD to show
good cause why unitary status had not been attained. The question
was briefed by the parties, and on April 24, 2008, this Court found
unitary status had been attained, but not without finding some
fault with the District's failure to consider the effectiveness of
the programs financed by desegregation dollars over this extended
period of time. The Court's decision was reversed by the Ninth
Circuit Court of Appeals on August 10, 2011.
The case was remanded to the Court to maintain jurisdiction until
it is satisfied that the School District has met its burden by
demonstrating--not merely promising--its good-faith compliance with
the Settlement Agreement over a reasonable period of time, quoting
Fisher v. TUSD, 652 F.3d at 1143-44 (quoting Freeman v. Pitts, 503
U.S. 467, 498 (1992)). Desegregation efforts have been defined
broadly and not limited to the de jure segregation found by Judge
Frey to exist in 1977 at certain specific schools, which was the
impetus for the relief he granted in 1978.
Upon returning the case to its active docket, the Court appointed a
Special Master to develop a plan by which the District would attain
unitary status. Given the history of the case, the Court directed
the plan to be specifically designed to address the factors under
Green v. County School Board of New Kent County VA, 391 U.S. 430
(1968), relevant to attaining unitary status in this case and for a
plan of action that would avoid a repeat performance of the
District operating under court jurisdiction in perpetuity. The
parties entered into a stipulated plan, i.e., a consent decree: The
Unitary Status Plan (USP). The Court adopted the USP in 2013.
Procedural History
On September 6, 2018, the Court granted unitary status in part and
adopted recommendations by the Special Master for Completion Plans,
which were designed to bring the Defendant District into full
compliance with the USP. The Court made specific findings,
identified specific deficiencies in respect to attaining unitary
status for specific programs, and issued express directives and set
benchmark deadlines for completing the work required under the
USP.
In adopting the Special Master's recommendations, the Court called
for the District to file Notices of Compliance related to the
Completion Plans and other directives of the Court, and held that
such notices would trigger supplemental briefing by the parties and
the Court's reconsideration of unitary status. The Court set two
Completion Plan benchmarks: Dec. 1, 2018, and Sept. 1, 2019.
Compliance was only partially attained by these dates, and the
District was required to file supplemental Notices of Compliance.
For every Notice of Compliance, including supplemental ones, the
parties and Special Master provided review and comment, and the
Court addressed all assertions of noncompliance and ineffectiveness
until finally, compliance was attained, except for a few limited
tasks which remain as noted herein. The Court turns to the
District's Supplemental Petition for Unitary Status filed on Dec.
31, 2019.
The Supplemental Petition has been fully briefed by the parties,
and the Special Master recommends that the Court grant unitary
status, except for a few specific objections which have been
addressed by the Court over the course of the past year and are now
moot. The Court adopts the recommendation of the Special Master
after being fully advised by the Plaintiffs' Objections.
Conclusion
The USP is more than a paper-plan, District Judge David C. Bury
writes. After its adoption, the plan provisions were developed as
best practices, research based, and data driven strategies. The USP
strategies have been fully implemented, except for the
contingencies noted which primarily involve planning for future
post unitary status operations. The Court retains jurisdiction to
resolve any issues relevant to determine final compliance for these
contingencies. This does not preclude the Court's finding that the
District has demonstrated its good-faith commitment to the whole of
the USP.
The District has operated, pursuant to implemented USP strategies,
for approximately three years for most of the plan provisions, with
some programs not being fully operational until this past year.
These operations, whether three years or more or less, have been
long enough for review, evaluation, and adjustments to ensure the
USP strategies and programs are effective to the extent practicable
over this time period, and fully vetted over this time period to
weed out ineffective strategies. The USP programs permeate all
levels of District operations from individual schools to the
administration, including training, performance evaluations, and
operational structures from policies to practices necessary for
performance and use of the USP strategies.
Has the USP been effective in increasing and improving access to
educational opportunities or student achievement for African
American and Latino, including EL, students? Some say "yes." Some
say "no." Some say, the District has not operated under the USP
long enough to know this answer, and the Court must retain
jurisdiction over this case until there are actual increases and
improvements evincing the District has attained the USP goals,
including narrowing or closing the student achievement gap with
White students for African American and Latino, including EL,
students. The Court agrees that longer operation of the District
will lead to improved equity and parity between the races but does
not agree that the Court must retain jurisdiction until the USP
goals are actually attained.
Based on its findings of good faith for compliance with every
provision of the USP, the Court is confident that the District will
continue USP operations, especially those that are already moving
the needle in the right direction. There is no reason to believe
that the District will walk away now from this massive six-year
undertaking. To deny unitary status would not only be contrary to
the law, it would be counterproductive. The District must be free
to respond to the needs of TUSD's students, including African
American and Latino students, outside the cumbersome confines of
litigation. The COVID-19 pandemic has made this fact abundantly
clear.
For example, Judge Bury explains, without any assertions of
disparate resource allocation or even impropriety on the part of
TUSD, the Fisher Plaintiffs question how the District can in good
conscience, actually petition for unitary status when evidence
suggests African American and Latino students have received
substantially more failing grades than their White peers.
By ignoring whether any evidence exists linking District conduct
during the pandemic to this new academic disparity, the Plaintiffs
fail to consider whether the USP, its strategies, the District's
operations pursuant to these strategies, or even any other conduct
of the District, failed these students during the COVID-19
pandemic. All parties, not just the Defendants, must consider the
effectiveness of USP programs and strategies to address
disparities. Otherwise, valuable time and resources are wasted
focusing on school programs to address inequities that actually
cannot be corrected by any school program, not even one designed
under the USP.
The recent Supplemental Objections to unitary status reinforce the
Court's conclusion to award unitary status now. The Plaintiffs do
not challenge any USP strategy contained in the Wakefield MS and
Innovation HS NARAs, which like all the USP strategies were
research based and best practices, adopted by the Court with review
and input from the Plaintiffs and the Special Master. The
Plaintiffs would have this Court deny unitary status because these
schools are Racially Concentrated, yet it was anticipated that
student enrollment pulled from within a three-mile radius of these
school might be 85% and 84% Hispanic, respectively for Wakefield MS
and Innovation Tech.
In the context of Wakefield MS and Innovation Tech HS, the District
opened two specialized schools in minority concentrated
neighborhoods, aimed at improving academic opportunities and
student achievement for African American and Latino students, with
proposed strategies to increase integration, including open
enrollment, lottery, targeted marketing, incentive bussing, etc.,
The recent objections reflect the tension that can exist between
integration and improving student achievement for African American
and Latino students because TUSD is demographically
majority-minority and geographically racially segregated.
Sometimes, the District must strike a delicate balance between the
two priorities. The teeter cannot totter back and forth depending
on the argument of the day. The District must plan for the best
result, which is what it did in the NARAs, and stay the course long
enough to secure results. That is all that is practicable.
The Court is confident that the District is committed to staying
the course and grants unitary status because the District is best
positioned to balance these interests and chart the course forward
to the end, using the building blocks set down these past six years
under the USP.
Accordingly, the Court ruled that the Special Master's Reports and
Recommendations (Reply R&R) and recommendation that the Court
awards unitary status is adopted based on the Findings of Fact and
Conclusions of Law made by the Court.
The Supplemental Petition for Unitary Status is granted for all USP
provisions, except for those provisions reserved for noncompliance
as follows:
1. USP Section V.A, ALE: Revised Policy Manual, Appendixes
Fulltime GATEs and AAC-AP Alignment, and correspondingly
Section III, Revised Transportation Plan; and
2. USP Section X, Transparency, Post-USP to: identify
benchmark events scheduled to occur beyond the date of this
Order; continue DARs for a reasonable period of time to
facilitate the transition of oversight of USP operations,
including addressing the recent comparative data challenge
that the District adopted new academic achievement measures
for SY 2020-21, which was raised by Mendoza Plaintiff's
March 23, 2021; retain the practice of transparency,
including the District's website, to facilitate transition
from judicial to public accountability.
The Court retains jurisdiction for the limited purpose of
determining compliance with these remaining contingencies.
The Special Master's approval of the District's training of
administrators to evaluate CRP competency will be filed with the
Court by May 31, 2021, and the District will file the UHS express
shuttle-bus report by this same date.
The District will respond to the Plaintiffs' Supplemental
Opposition to the Petition for Unitary Status challenging that
Wakefield Middle School and Innovation Tech. High School are
Racially Concentrated by addressing whether the strategies outlined
in the NARAs to promote integration at these schools have been
implemented, and if not why.
The District will respond to the In its Supplemental Opposition,
the Fisher Plaintiffs charge that it is in violation of the Court's
Order by failing to include the "Academic Performance (African
American and Latino Students) criteria in the 2020-21 MSPs.
Pending issues of compliance will be addressed by the Court
pursuant to current briefing schedules, and the District's
Responses to the Plaintiffs' Supplemental Opposition to the
Petition will be filed within 14 days of the filing date of this
Order. The Plaintiffs will file Replies within 7 days. If the Court
finds it would be helpful, it will call for an R&R from the Special
Master and afford the parties an opportunity to file responses.
The Special Master will consult the Plaintiffs and oversee the
District's development of the Post-Unitary Status Plan, which will
be filed with the Court within 30 days of the filing date of this
Order. The Special Master will have 14 days to file a R&R
explaining any objections he has to the Post-USP. The Plaintiffs
may file Objections within 30 days of the Special Master's R&R, and
the District may file a Reply within 14 days.
A full-text copy of the Court's Order dated April 19, 2021, is
available at https://tinyurl.com/fryjap6 from Leagle.com.
UNIVERSAL PROTECTION: Brown Sues Over Security Officers' Unpaid OT
------------------------------------------------------------------
STACY BROWN, on behalf of herself and others similarly situated,
Plaintiff v. UNIVERSAL PROTECTION SERVICE, LLC, Defendant, Case No.
3:21-cv-00801 (N.D. Ohio, April 14, 2021) brings this complaint as
a collective and class action against the Defendant for its alleged
failure to properly pay employees overtime wages in violations of
the Fair Labor Standards Act of 1938, the Ohio Minimum Fair Wage
Standards Act, and the Ohio Prompt Pay Act.
The Plaintiff was employed by the Defendant as an hourly,
non-exempt employee to perform the job as a security officer and/or
hourly supervisor.
The Plaintiff asserts that the Defendant did not compensate her and
other similarly situated security officers for the time they spent
performing pre-shift, post-shift, and non-neutral rounding.
Although they regularly worked in excess of 40 hours in a workweek,
the Defendant denied them of their lawfully earned overtime
compensation at the rate of one and one-half times their regular
rates of pay for hours worked over 40 in a workweek, the Plaintiff
adds.
Moreover, the Defendant retaliated against the Plaintiff for
complaining regarding her unpaid overtime pay by reducing her work
responsibilities and shifts, and by denying her vacation requests.
As a direct and proximate result of the Defendant's alleged
unlawful employment policies and practices, the Plaintiff and other
similarly situated security officers have suffered and continue to
suffer damages. Thus, the Plaintiff brings this complaint to
recover damages from the Defendant, that includes unpaid overtime
and other compensation, liquidated damages, interest and attorneys'
fees, and all other remedies available for herself and other
similarly situated security officers.
Universal Protection Service, LLC is a security and facility
services company that provides security services and smart
technology to its clients. [BN]
The Plaintiff is represented by:
Matthew J.P. Coffman, Esq.
Adam C. Gedling, Esq.
COFFMAN LEGAL, LLC
1550 Old Henderson Road, Suite 126
Columbus, OH 43220
Tel: (614) 949-9964
Fax: (614) 386-9964
E-mail: mcoffman@mcoffmanlegal.com
agedling@mcoffmanlegal.com
VANDA PHARMA: Lifshitz Law Announces Securities Class Action
------------------------------------------------------------
Vanda Pharmaceuticals, Inc. (NasdaqGS: VNDA)
Lifshitz Law Firm, P.C. announces that on March 10, 2021, the Court
issued an Order granting in part and denying in part Defendants'
Motion to Dismiss a putative class action complaint alleging that
VNDA and certain officers made false statements and failed to
disclose that: (1) Vanda was engaged in a fraudulent scheme in
which it promoted the off-label use of Fanapt and Hetlioz; (2)
Vanda was fraudulently receiving drug reimbursements from the
government by abusing Medicare, Medicaid, and Tricare programs; (3)
as a result of the scheme, Vanda faced legal action from the
government; and (4) Vanda's promotional materials for Fanapt and
Hetlioz were false and misleading, garnering regulatory scrutiny
from the U.S. Food and Drug Administration.
If you are a VNDA investor, and would like additional information
about our investigation, please complete the Information Request
Form or contact Joshua Lifshitz, Esq. by telephone at (516)493-9780
or e-mail at info@jlclasslaw.com.
ATTORNEY ADVERTISING.(C) 2021 Lifshitz Law Firm, P.C. The law firm
responsible for this advertisement is Lifshitz Law Firm, P.C. LLP,
1190 Broadway, Hewlett, New York 11557, Tel: (516)493-9780. Prior
results do not guarantee or predict a similar outcome with respect
to any future matter.
Contact:
Joshua M. Lifshitz, Esq.
Lifshitz Law Firm, P.C.
Phone: 516-493-9780
Facsimile: 516-280-7376
Email: jml@jlclasslaw.com [GN]
VERUS INTERNATIONAL: Wolf Haldenstein Reminds of June 22 Deadline
-----------------------------------------------------------------
Wolf Haldenstein Adler Freeman & Herz LLP ("Wolf Haldenstein")
announces that it has filed the initial federal securities class
action lawsuit in the United States District Court for the District
of Maryland on behalf of all persons or entities who purchased or
otherwise acquired Verus International, Inc. ("Verus" or the
"Company") (OTC: VRUS) common stock between June 17, 2019 and
October 8, 2020, both dates inclusive (the "Class Period").
This action is styled Jeffrey Benjamin v. Bhatnagar, et. al.;
(District of Maryland; 8:21-cv-01001-PWG)
Wolf Haldenstein is seeking to recover damages caused by
defendants' violations of the federal securities laws and to pursue
remedies under Sections 10(b) and 20(a) of the Securities Exchange
Act of 1934 (the "Exchange Act") and Rule 10b-5 promulgated
thereunder, against the Company and certain of its top officials.
Investors are urged to contact the firm immediately at
classmember@whafh.com or (800) 575-0735 or (212) 545-4774. You may
obtain additional information concerning the action on our website,
www.whafh.com.
If you have incurred losses in the shares of Verus International,
Inc., you may, no later than June 22, 2021, request that the Court
appoint you lead plaintiff of the proposed class. Please contact
Wolf Haldenstein to learn more about your rights as an investor in
Verus.
The Complaint alleges that Verus and certain executive made
material misrepresentations and/or omitted the material information
concerning:
Verus' ability to exploit its Big League Foods brand and the Major
League Baseball License; The Company's issues in production ramp-up
related to Big League Foods and Verus's ability timely satisfy
demand and fulfill customer orders;
The status of Verus' controlling interest in ZC Top Apparel
Manufacturing ("ZTAM"); Verus' ability to unlock the capacity of
ZTAM's facilities to produce millions of masks; The status and
strength of the Company's working relationship with ZTAM; The
accuracy of the Company's financial results, business outlook and
prospects; and that as a result of the foregoing, Verus' public
statements were materially false and misleading at all relevant
times. Shares of Verus. traded as high as $0.037 per share
(adjusted for January 13, 2021 reverse split) during the Class
Period, and closed at $0.002 per share on October 8, 2020.
Wolf Haldenstein Adler Freeman & Herz LLP has extensive experience
in the prosecution of securities class actions and derivative
litigation in state and federal trial and appellate courts across
the country. The firm has attorneys in various practice areas; and
offices in New York, Chicago and San Diego. The reputation and
expertise of this firm in shareholder and other class litigation
has been repeatedly recognized by the courts, which have appointed
it to major positions in complex securities multi-district and
consolidated litigation.
If you wish to discuss this action or have any questions regarding
your rights and interests in this case, please immediately contact
Wolf Haldenstein by telephone at (800) 575-0735, via e-mail at
classmember@whafh.com, or visit our website at www.whafh.com. [GN]
VOLKSWAGEN AG: Rosen Law Discloses Securities Class Action
----------------------------------------------------------
WHY: Rosen Law Firm, a global investor rights law firm, continues
to investigate potential securities claims on behalf of
shareholders of Volkswagen AG (OTC: VWAGY) resulting from
allegations that Volkswagen AG may have issued materially
misleading business information to the investing public.
SO WHAT: If you purchased Volkswagen AG securities you may be
entitled to compensation without payment of any out of pocket fees
or costs through a contingency fee arrangement. The Rosen Law Firm
is preparing a class action seeking recovery of investor losses.
WHAT TO DO NEXT: To join the prospective class action, go to
http://www.rosenlegal.com/cases-register-2072.htmlor call Phillip
Kim, Esq. toll-free at 866-767-3653 or email pkim@rosenlegal.com or
cases@rosenlegal.com for information on the class action.
WHAT IS THIS ABOUT: On March 29, 2021, CNBC published an article
entitled "VW accidentally leaks new name for its U.S. operations:
Voltswagen" stating that "Volkswagen is expected to change the name
of its operations in the U.S. to 'Voltswagen of America,'
emphasizing the German automaker's electric vehicle efforts" and
that "[a] now unpublished press release called the change a 'public
declaration of the company's future-forward investment in
e-mobility.'"
Then on March 30, 2021, the Wall Street Journal published an
article entitled "No, Volkswagen Isn't Rebranding Itself
Voltswagen" which stated "[t]he name change stunt comes as the
company is eager to get U.S. consumers jazzed about the ID. 4,
which went on sale in U.S. showrooms this month." The article also
stated that "problem for VW is that everyone took it seriously,
creating confusion about the company's intentions and moving the
shares[.]" Due to the earlier news, the article stated "[i]n the
U.S., the company's American depositary receipts rose as much as
12% before sliding near the close after the company confirmed the
name change was a joke, closing up 9%."
On this news, Volkswagen's American depositary receipt ("ADR")
price fell $2.17 per ADR, or 5%, over the next two trading days to
close at $35.58 per ADR on April 1, 2021, damaging investors.
WHY ROSEN LAW: We encourage investors to select qualified counsel
with a track record of success in leadership roles. Often, firms
issuing notices do not have comparable experience or resources. The
Rosen Law Firm represents investors throughout the globe,
concentrating its practice in securities class actions and
shareholder derivative litigation. Rosen Law Firm has achieved the
largest ever securities class action settlement against a Chinese
Company. Rosen Law Firm was Ranked No. 1 by ISS Securities Class
Action Services for number of securities class action settlements
in 2017. The firm has been ranked in the top 4 each year since 2013
and has recovered hundreds of millions of dollars for investors. In
2019 alone the firm secured over $438 million for investors. In
2020 founding partner Laurence Rosen was named by law360 as a Titan
of Plaintiffs' Bar. Many of the firm's attorneys have been
recognized by Lawdragon and Super Lawyers.
Attorney Advertising. Prior results do not guarantee a similar
outcome. [GN]
WELLS FARGO: Parties Stipulate to Dismiss Moton Class Suit
----------------------------------------------------------
The parties in the case, Mary Moton, on behalf of herself and
others similarly situated, Plaintiff v. Wells Fargo Bank, N.A.,
Defendant, Case No. 3:20-cv-05723-JCS (N.D. Cal.), filed with
Magistrate Judge Joseph C. Spero of the U.S. District Court for the
Northern District of California, San Francisco Division, their
stipulation of dismissal.
Pursuant to Fed. R. Civ. P. 41(a)(1)(A)(ii), Plaintiff Moton and
Defendant Wells Fargo stipulated to the dismissal of the
Plaintiff's individual claims with prejudice, and without prejudice
as to her putative class action claims, with each party to bear its
own attorneys' fees and costs.
A full-text copy of the Court's April 21, 2021 Order is available
at https://tinyurl.com/3ufv8rak from Leagle.com.
Russell S. Thompson, IV -- rthompson@thompsonconsumerlaw.com --
Thompson Consumer Law Group, PC, in Los Angeles, California,
Michael L. Greenwald -- mgreenwald@gdrlawfirm.com -- (pro hac vice)
Greenwald Davidson Radbil PLLC, in Boca Raton, Florida, Counsel for
Plaintiff.
MARK D. LONERGAN -- mdl@severson.com -- REBECCA S. SAELAO --
rss@severson.com -- SEVERSON & WERSON A Professional Corporation,
in San Francisco, California Attorneys for Defendant WELLS FARGO
BANK, N.A.
WORLD FINANCIAL: Order on Discovery Letter Entered in Yeomans Suit
------------------------------------------------------------------
Magistrate Judge Kandis A. Westmore of the U.S. District Court for
the Northern District of California entered an order regarding
joint discovery letter in the case, TRICIA YEOMANS, et al.,
Plaintiffs v. WORLD FINANCIAL GROUP INSURANCE AGENCY, INC., et al.,
Defendants, Case No. 19-cv-00792-EMC (KAW) (N.D. Cal.).
The Plaintiffs filed the instant putative class action against
Defendants World Financial Group Insurance Agency, Inc. and World
Financial Group, Inc., alleging unlawful misclassification. The
Defendants market financial and insurance products, and recruit
individuals to work for them as "Associates."
The Plaintiffs, however, assert that the Defendants are operating
"a massive pyramid scheme," where Associates are required to pay
$100 application fee to join, pressured to purchase Defendants'
products, required to recruit additional Associates, and trained to
sell the Defendants' products to the new Associates as soon as
possible. They further allege that Associates are misclassified as
independent contractors. Based on these actions, the Plaintiffs
assert violations of various California labor laws, as well as
California's Private Attorneys General Act ("PAGA").
Magistrate Judge Westmore previously denied the Defendants' motions
to transfer the case to the Northern District of Georgia. The
Defendants filed a mandamus petition with the Ninth Circuit and
moved to stay the case pending a ruling. On March 19, 2021, the
presiding judge granted in part and denied in part the Defendants'
motion to stay. Magistrate Judge Westmore found that the
Defendants would "not be prejudiced" if the parties were permitted
"to conduct reasonable pre-trial discovery while the Defendants'
appeals are pending." Thus, sge stayed the case pending the
mandamus petition as to motions on the merits of the case, but
allowed "reasonable discovery commensurate with that which would
likely be permitted if the case was arbitrated but also including
discovery keyed to the PAGA claim which is likely to proceed in any
event."
Magistrate Judge Westmore ordered the parties to meet and confer
about the scope of discovery, "keeping in mind that the Court has
allowed, in similar cases, focused discovery designed to allow the
Plaintiffs to secure and preserve the evidence needed to pursue
their PAGA claims otherwise at risk due to delay." This could
include, for example, individuals that might be covered by a PAGA
claim, contact information, time and pay records related to the
PAGA claim, and "depositions of witnesses whose testimony might be
lost with the passage of time."
At the March 25, 2021 case management conference, Magistrate Judge
Westmore found that the PAGA claims were likely to proceed, and
directed the parties "to meet and confer to figure out what type of
PAGA discovery would be appropriate to move this case along in the
next ninety days without being overly burdensome to the
Defendants." She observed that "high-level discovery pertaining to
the PAGA claims may be appropriate." She, however, "warned the
Plaintiffs against broad-based discovery pertaining to 300,000 PAGA
aggrieved parties at this juncture, while also "admonishing the
Defendants against refusing to cooperate with any discovery.
Finally, she instructed the parties to file a discovery letter
identifying any outstanding disputes and the parties' respective
positions if the parties were unable to reach an agreement.
On April 14, 2021, the parties filed the instant joint discovery
letter. On April 16, 2021, the case was referred to Magistrate
Judge Westmore for discovery purposes.
Having reviewed the discovery letter, Magistrate Judge Westmore
holds that it is not apparent that the parties have adequately met
and conferred. For example, with respect to individual discovery,
the Plaintiffs assert that the Defendants should respond to certain
Requests for Production ("RFP") and interrogatories, which
apparently seek professional relationship documents, amount and
nature of the work performed, compensation, complaints, debts and
debit balances, and payments made between the parties. The
Defendants, in turn, state that they are willing to produce certain
discovery, including documents provided to the Plaintiffs regarding
the business platforms, any written agreements with the Plaintiffs,
marketing and training materials, and documents concerning
commissions, referral fees paid to the Plaintiffs, and fees paid by
the Plaintiffs. Based on this, it appears there is significant
overlap between what the Plaintiffs desire and the Defendants are
willing to produce, so it is entirely unclear to the Court what
disputes the parties still have, if any.
With respect to PAGA-based discovery, the Defendants contend that
"PAGA discovery is wholly inappropriate." Magistrate Judge
Westmore, however, already rejected this contention, and the
Defendants cite no authority that PAGA discovery is not permitted
in this situation. If they wish to relitigate her ruling, the
Defendants should file a motion for leave to file a motion for
reconsideration; the Defendants, however, may not disregard her
ruling by refusing all PAGA discovery.
That said, it also appears the Plaintiffs' discovery requests are
contrary to Magistrate Judge Westmore's warning against
"broad-based discovery." The Plaintiffs appear to require
production of over 60 RFPs and 20 interrogatories, some of which
have no apparent relevance to a PAGA claim including the ownership
and corporate structure, licenses, document retention policies,
facts supporting affirmative defenses, legal assertions against the
Defendants, employee studies, payments between the Defendants and
Transamerica, and facility information. To the extent they believe
these RFPs and interrogatories are related to the PAGA claim, the
Plaintiffs have not so explained. It is not the Court's
responsibility to review over 60 RFPs and 20 interrogatories to
determine if and how the requests are related to the PAGA claim.
Rather, it is the Plaintiffs' role to explain, with specificity,
why each request pertains to the "high-level discovery" that the
presiding judge found appropriate.
Accordingly, Magistrate Judge Westmore ordered the parties to,
again, meet and confer by videoconference within 10 days of the
date of her Order. They should discuss each RFP and interrogatory,
including what the Plaintiffs specifically seek, how it satisfies
the "high-level discovery" or individual representative discovery
that Magistrate Judge Westmore found was warranted, and what the
Defendants are willing to produce. If there are outstanding
disputes, the Plaintiffs must be prepared to explain why each
discovery request in dispute is necessary "to move the case along
in the next ninety days without being overly burdensome to the
Defendants."
The Defendants, in turn, cannot resist discovery solely on the
ground that PAGA discovery is not permitted absent a ruling from
the presiding judge or Ninth Circuit otherwise. Further, the fact
that documents do not exist is not a reason to compel or dispute
discovery; documents that do not exist cannot be produced. Any
discovery letter must comply with Magistrate Judge Westmore's
standing order provisions related to discovery disputes, including
formatting and page limits.
A full-text copy of the Court's April 21, 2021 Order is available
at https://tinyurl.com/e6t8v2eu from Leagle.com.
XL FLEET: Hagens Berman Reminds Investors of May 7 Deadline
-----------------------------------------------------------
Hagens Berman urges XL Fleet Corp. (NYSE: XL) investors with
significant losses to submit your losses now. A securities fraud
class action has been filed and certain investors may have valuable
claims.
Class Period: Oct. 2, 2020 - Mar. 2, 2021
Lead Plaintiff Deadline: May 7, 2021
Visit: www.hbsslaw.com./investor-fraud/XL
Contact An Attorney Now: XL@hbsslaw.com
844-916-0895
XL Fleet Corp. (NYSE: XL) Securities Fraud Class Action:
The complaint alleges that: (1) XL's sales pipelines was materially
inflated; (2) XL grossly overstated its customer base; (3) XL's
technology had been materially overstated and did not provide
customers the represented cost savings; and (4) that XL lacks the
supply chain and engineers to roll out new products on the
announced timelines.
The truth emerged on Mar. 3, 2021, when analyst Muddy Waters
published a report calling XL "More SPAC Trash." Based on
interviews with former employees, Muddy Waters claimed that
salespeople "were pressured to inflate their sales pipelines
materially," and that "customer reorder rates are in reality quite
low" due to "poor performance and regulatory issues." The report
also alleged that "at least 18 of 33 customers XL featured were
inactive." Muddy Waters also claimed that XL has "weak technology"
and that "XL's announcement of future class 7-8 upfits seems highly
promotional" because the task is "too technologically complex for
XL engineers to deliver on the promised timeline."
Then, on Mar. 4, 2021, after XL issued a denial, Muddy Waters
criticized XL's "placeholder response," tweeting, "We spoke to a
fleet manager for one of the companies XL brags about in its
response. He said MPG gains only 10%, not 25%. He said didn't help
for highway driving. Also his company bought at a deep discount.
Tell. The. Truth."
In response, the Company's share price declined $5.55, or 33% over
three trading days.
Then, on Mar. 10, 2021, after XL issued a more detailed response,
Muddy Waters released another report, observing that XL did not
deny key allegations, including (1) its inflated pipeline, (2)
overstated customer base, and (3) low customer reorder rates.
Finally, on Mar. 31, 2021, XL announced its Q4 and FY 2020
financial results missing Q4 consensus revenue expectations by
nearly 10%. Moreover, XL forecasted Q1 2021 revenues of just $1
million, or just over 90% lower than Q4 2020 and just 1% of the $75
million total FY 2021 the company previously forecasted on Nov. 12,
2020, blaming the dim outlook on chip shortages. Muddy Waters
tweeted that during the earnings call, "Cannacord analyst asked
about 90% sales drop QoQ in Q1, saying that doesn't square with
chip shortage-related issues he's seen elsewhere."
In response, the price of XL shares sharply dropped in after-hours
trading.
"We're focused on investors' losses and proving XL misled investors
by exaggerating its order backlog," said Reed Kathrein, the Hagens
Berman partner leading the investigation.
If you are an XL investor and have significant losses, or have
knowledge that may assist the firm's investigation, click here to
discuss your legal rights with Hagens Berman.
Whistleblowers: Persons with non-public information regarding XL
Fleet should consider their options to help in the investigation or
take advantage of the SEC Whistleblower program. Under the new
program, whistleblowers who provide original information may
receive rewards totaling up to 30 percent of any successful
recovery made by the SEC. For more information, call Reed Kathrein
at 844-916-0895 or email XL@hbsslaw.com.
About Hagens Berman
Hagens Berman is a national law firm with eight offices in eight
cities around the country and over eighty attorneys. The firm
represents investors, whistleblowers, workers and consumers in
complex litigation. More about the firm and its successes is
located at hbsslaw.com. For the latest news visit our newsroom or
follow us on Twitter at @classactionlaw [GN]
XTO ENERGY: Misclassifies Inspectors, Gamboa Suit Alleges
---------------------------------------------------------
DAVID GAMBOA, individually and on behalf of all others similarly
situated, Plaintiff v. XTO ENERGY, INC., Defendant, Case No.
4:21-cv-01248 (W.D. Tex., April 15, 2021) brings this collective
action complaint against the Defendant seeking all available relief
pursuant to the Fair Labor Standards Act.
The Plaintiff has worked for the Defendant as an Inspector from
approximately January 2019 through May 2020.
The Plaintiff asserts that the Defendant misclassified him and
other similarly situated blue-collar oilfield workers as
independent contractors. The Defendant is well aware that they are
not exempt from overtime. However, despite they routinely worked in
excess of 40 hours per workweek, the Defendant allegedly denied
them of an additional overtime premium at the rate of one and
one-half times their regular rates of pay for all hours they worked
over 40 in a workweek.
XTO Energy, Inc. is an international natural gas and oil producer
operating throughout five divisions in the U.S., Western Canada,
and South America. [BN]
The Plaintiff is represented by:
Michael A. Josephson, Esq.
Andrew Dunlap, Esq.
William R. Liles, Esq.
JOSEPHSON DUNLAP LAW FIRM
11 Greenway Plaza, Suite 3050
Houston, TX 77046
Tel: (713) 352-1100
Fax: (713) 352-3300
E-mail: wliles@mybackwages.com
mjosephson@mybackwages.com
adunlap@myackwages.com
- and –
Clif Alexander, Esq.
ANDERSON ALEXANDER PLLC
819 N. Upper Broadway
Corpus Christi, TX 78401
Tel: (361) 452-1279
Fax: (361) 452-1284
E-mail: clif@a2xlaw.com
- and –
Richard J. (Rex) Burch, Esq.
BRUCKNER BURCH, P.L.L.C.
11 Greenway Plaza, Suite 3025
Houston, TX 77046
Tel: (713) 877-8788
Fax: (713) 844-8065
E-mail: rburch@brucknerburch.com
YONKERS, NY: Appellate Court Affirms Dismissal of WMC Realty Suit
-----------------------------------------------------------------
In the case, WMC REALTY CORP., ETC., ET AL., Appellants, v. CITY OF
YONKERS, ET AL., Respondents, 2019-01113, Index No. 65933/17 (N.Y.
App. Div.), the Appellate Division of the Supreme Court of New
York, Second Department, affirmed, as modified, the order dated
Dec. 13, 2018 of the Supreme Court that granted the Defendants'
motion to dismiss and directed dismissal of the complaint in its
entirety.
In October 2017, the Plaintiffs, WMC Realty and T.A.C. Realty
Corp., commenced the putative class action against the Defendants,
City of Yonkers, Yonkers City Council, and Mike Spano, the City's
mayor, alleging, inter alia, that although the Plaintiffs were
required to pay an annual inspection fee pursuant to the New York
State Uniform Fire Prevention and Building Code ("Uniform Code")
and the Yonkers Fire and Building Code ("Yonkers Fire Code"), the
Defendants failed to ensure that the annual inspections were
performed as required by Yonkers Fire Code Section 55-7.
The Plaintiffs asserted causes of action, inter alia, to recover
damages for breach of contract (third cause of action), negligence
(fourth cause of action), and breach of fiduciary duty (fifth cause
of action), and for a judgment, among other things, declaring that
the Yonkers Fire Code provisions requiring the plaintiffs to pay
the inspection fee is a violation of the New York State
Constitution (sixth cause of action).
The Defendants moved pursuant to CPLR 3211(a)(7) to dismiss the
complaint. By order dated Dec. 13, 2018, the Supreme Court, inter
alia, granted the Defendants' motion and directed dismissal of the
complaint in its entirety. The Plaintiffs appeal from so much of
the order as directed dismissal of the third, fourth, fifth, and
sixth causes of action.
The Appellate Division finds that the Supreme Court properly
determined that neither the Uniform Code nor the Yonkers Fire Code
creates a private right of action. It holds that the Plaintiffs
are not members of a class for whose particular benefit the
statutes were enacted.
The Appellate Division explains that Executive Law Section
371(2)(b) declares that it is the public policy of the state to,
inter alia, "provide for the promulgation of a uniform code
addressing building construction and fire prevention in order to
provide a basic minimum level of protection to all people of the
state from hazards of fire and inadequate building construction.
Similarly, the Yonkers Fire Code provides that its purpose, inter
alia, is to "establish reasonable safeguards for the safety, health
and welfare of the occupants and users of the buildings, land,
staging and structures." Accordingly, the Uniform Code and the
Yonkers Fire Code were enacted to benefit the general public, and
not to benefit a particular class of persons.
Further, as Executive Law Section 381(4) empowers the Secretary of
State to take a number of actions to ensure local government
compliance, the creation of a private right of action would not be
consistent with the legislative scheme.
Although the Plaintiffs' causes of action are based on the
Defendants' alleged violations of the Uniform Code and the Yonkers
Fire Code and neither creates a private right of action, under the
circumstances in the case, the Appellate Division holds that that
does not end the analysis. In considering a motion to dismiss a
complaint pursuant to CPLR 3211(a)(7), it must accept the facts as
alleged in the complaint as true, accord the Plaintiff the benefit
of every possible favorable inference, and determine only whether
the facts as alleged fit within any cognizable legal theory.
Nonetheless, the Appellate Division holds that dismissal of the
cause of action alleging breach of contract was properly granted.
The essential elements of a cause of action to recover damages for
breach of contract are the existence of a contract, the Plaintiff's
performance pursuant to the contract, the Defendant's breach of its
contractual obligations, and damages resulting from the breach.
The Defendants established that neither the Uniform Code nor the
Yonkers Fire Code constitute a valid contract with the Plaintiffs.
Contrary to the Plaintiffs' contentions, Yonkers Fire Code Section
55-7 does not provide that the defendants will provide fire and
safety inspections in exchange for an annual fee. Instead, it
merely established a "schedule of fees for classes of occupancies
inspected" to offset the cost of administering and enforcing the
program.
The Appellate Division also holds that the dismissal of the cause
of action alleging negligence also was properly granted. When a
negligence claim is asserted against a municipality, the first
issue for a court to decide is whether the municipal entity was
engaged in a proprietary function or acted in a governmental
capacity at the time the claim arose. Once it is determined that a
municipality was exercising a governmental function, the next
inquiry focuses on the extent to which the municipality owed a duty
to the injured party.
To sustain liability against a municipality engaged in a
governmental function, "the duty breached must be more than that
owed the public generally." The Court of Appeals has recognized
that a special duty can arise "when the municipality violates a
statutory duty enacted for the benefit of a particular class of
persons." To form a special relationship through breach of a
statutory duty, the governing statute must authorize a private
right of action.
As the Appellate Division noted, neither the Uniform Code nor the
Yonkers Fire Code give rise to a private right of action. Nor did
the Plaintiffs allege facts to show that a special duty existed by
demonstrating that the Defendants voluntarily assumed a duty to the
Plaintiffs beyond what is owed to the public generally. It says,
although the Plaintiffs contend that the Defendants assumed an
affirmative duty through the adoption of the Yonkers Fire Code and
the collection of inspection fees, neither constitutes a particular
action or promise to act on behalf of the Plaintiffs.
Dismissal of the breach of fiduciary duty cause of action also was
properly granted, the Appellate Division finds. A fiduciary
relationship exists between two persons when one of them is under a
duty to act for or to give advice for the benefit of another upon
matters within the scope of the relation. The complaint did not
allege facts that would give rise to a fiduciary relationship
between the Plaintiffs and the Defendants.
However, the Supreme Court should have denied that branch of the
Defendants' motion which was to dismiss the sixth cause of action,
which sought a declaration, inter alia, that the inspection fees
were invalid as an unconstitutional tax. The complaint was
sufficient to invoke the court's power to render a declaratory
judgment as to the rights and other legal relations of the parties
to a justiciable controversy.
The Appellate Division holds that the Defendants' remaining
contentions are without merit.
For these reasons, the Appellate Division affirmed the order
insofar as appealed from, as modified, without costs or
disbursements.
A full-text copy of the Court's April 21, 2021 Decision & Order is
available at https://tinyurl.com/dc259n7a from Leagle.com.
Stephen A. Cerrato, in Yonkers, New York (Brian William Warwick --
bwarwick@vandwlaw.com -- pro hac vice, of counsel), for
Appellants.
Abrams, Fensterman, Fensterman, Eisman, Formato, Ferrara, Wolf &
Carrone, LLP, in White Plains, New York (Robert A. Spolzino --
rspolzino@abramslaw.com -- of counsel), for Respondents.
*********
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