/raid1/www/Hosts/bankrupt/CAR_Public/210803.mbx
C L A S S A C T I O N R E P O R T E R
Tuesday, August 3, 2021, Vol. 23, No. 148
Headlines
ACELL INC: Taat Employment Suit Removed to C.D. California
ADVANCED CALL CENTER: Faces Sorrells Suit for Unpaid Overtime Wages
ADVOCATE AURORA: Faces Scardina Suit in Northern Dist. of Illinois
ALLY FINANCIAL: Phelps WVCCPA Class Suit Removed to S.D. W. Va.
AMAZON.COM INC: Faces Hudson Suit Over Unlawful Voice Recording
AMAZON.COM: Wiretapping Suit Moved from N.D. Cal. to W.D. Wash.
AMERICAN EXPRESS: Appeal in Anti-Steering Rules Litigation Pending
AMERICAN EXPRESS: Continues to Defend Marcus Corp Antitrust Suit
AMERICAN EXPRESS: Oliver Putative Class Action Underway
ANTIGUA PHARMACY: Gioules Seeks Unpaid Wages Under FLSA, NYLL
APPLE INC: Workman Consumer Suit Moved From D. Conn. to N.D. Cal.
ARCHER DANIELS: AOT Holding, Maize Capital Seek to Certify Class
BAKER HUGHES: Continues to Defend Consolidated Shareholder Suit
BEECH-NUT NUTRITION: Baby Foods Contain Toxic Metals, Andrews Says
BELDEN INC: Edke Suit Moved From N.D. Illinois to E.D. Missouri
BOB BAFFERT: Faces Beychok Suit Over Illegal Doping in Horse Racing
BOEING CO: Court Grants Earl Leave to Rely Upon Allenby Report
BOSCH SOLAR: Parties Stipulate to Continue Briefing Dates
BROSNAN RISK: Murillo Wage-and-Hour Suit Goes to C.D. California
CALIFORNIA CEMETERY: Harp Labor Suit Removed to E.D. California
CARRY BAG: Rosas Suit Seeks Unpaid Wages Under FLSA, NYLL
CENTENE CORP: Faces Data Breach Related Putative Class Suits
CENTENNIAL BANK: Filing of Class Cert. Bid Due October 11
CLARK COUNTY, NV: Allison's LSR 2-1-Compliant Suit Due Sept. 14
CONAGRA BRANDS: Appeal in Firefighters Pension Fund Suit Pending
CONAGRA BRANDS: Appellate Court Rejects Settlement in Briseno Suit
CONAGRA BRANDS: Negrete Settlement Granted Preliminary Approval
DEL TACO: Bid to Oppose Class Certification Bid Pending
DISCOVER BANK: Bid to Strike Class Claims in Golden Suit Denied
DOCTOR'S BEST: Initial Approval of Class Settlement in Casey Sought
DOT TRANSPORTATION: Watson Labor Suit Removed to E.D. California
E. A. RENFROE: Fails to Properly Pay Adjusters, Bobbs Suit Claims
EAN SERVICES: Court Dismisses Swiggum FSCA Suit Without Prejudice
ECO SHIELD: Final Judgment Entered in Quatinetz Class Suit
ENPHASE ENERGY: Bid to Dismiss Hurst Securities Class Suit Pending
FEDCAP REHABILITATION: Seeks to Stay Class Cert. Briefing
FIRST AMERICAN FINANCIAL: Continues to Defend Putative Class Suits
FRESNO STATE: Anders Suit Stayed Pending Ruling on Bid to Dismiss
HARTFORD FIRE: Denies Coverage Due to COVID-19 Losses, Suit Says
HEALTHCARE SERVICES: Settlement in PA Class Suit Awaits Initial OK
HEAT MAKE: Valdez Wage-and-Hour Suit Removed to E.D. California
HL WELDING: $858K Class Settlement in Yanez Suit Has Prelim. Nod
HONEYWELL INTERNATIONAL: Continues to Defend Kanefsky Class Suit
INFINITY HEALTHCARE: Bid to Dismiss Lange ERISA Suit Partly Granted
INTEL CORP: Bid to Nix Class Suit Over 7nm Product Delays Pending
INTEL CORP: Spectre and Meltdown Virus-Related Suits Underway
JERRY W. BAILEY: $70K in Attorneys' Fees Awarded in Koch Suit
KANSAS CITY ROYALS: Senne Bid for Class Status Partly OK'd
KIMPTON HOTEL: Thomas Has Until August 6 to File Class Cert. Bid
KONINKELIJKE PHILIPS: Autry Sues Over Health Risks of CPAP Devices
LIMETREE BAY: Court Issues Upcoming Deadlines in Shirley Suit
LOUISIANA: Judge Endorses Dismissal of Wallace Suit
LVNV FUNDING: Bid for Class Cert. Must be Filed by October 15
MANHATTAN SCHOOL: Wins Partial Judgment on Pleadings in Flatscher
McDONALD'S CORP: Bid to Dismiss Fairley & Strike Class Claims Nixed
MONDELEZ INT'L: Continues to Defend Wheat Trading-Related Suit
MOTT PHO: Galicia Seeks Minimum and OT Wages Under FLSA, NYLL
NEC NETWORKS: Faces Rodgers Suit Over Data Breach
ONESTAFF MEDICAL: Prelim. Approval of Madison Class Deal Endorsed
OREGON: Seeks to Stay Wolfe Case Pending Resolution in "Maney"
PAYCHEX NORTH: Callahan Labor Suit Removed to N.D. California
PEL-STATE BULK PLANT: Collins FLSA Suit Seeks to Certify Class
PORTFOLIO RECOVERY: Uses Third Party to Collect Debts, Barnes Says
PREMIUM RETAIL: Fraga Suit Seeks to Certify FLSA Collective
PROFESSIONAL TRANSPORT: Smith's Individual Action Can Move Ahead
R&R EXPRESS: Logistics Coordinator Classes Certified in Rood Suit
RAYTHEON TECHNOLOGIES: Darnis Putative Class Action Underway
RAYTHEON TECHNOLOGIES: Defends Putative Securities Class Suit in AZ
RENOVACARE INC: Solakian Files Securities Suit in N.J.
RENOWN HEALTH: Nevett FLSA Class Suit Removed to D. Nevada
RICH PRODUCTS: Chairez Wage-and-Hour Suit Goes to C.D. California
RISK BASED SECURITY: Class Cert. Bid Must be Filed by Jan. 14, 2022
RYANAIR HOLDINGS: Birmingham Funds' Suit Ongoing
SADDLE PEAK: Clark Seeks OT Pay for Employees Under FLSA, AMWA
SEI INVESTMENTS: Suits Over SPTC Services to Stanford Trust Ongoing
SNAP INC: Settlement in IPO Related Suit Granted Final Approval
STATE STREET: Gomes Putative Class Action Underway
STATE STREET: Settlement Reached in Suit Over Invoicing Practices
TESLA INC: 9th Cir. Junks Plaintiffs' Request for Rehearing
TESLA INC: Trial on Twitter Post Related Suit Set for May 2022
TRINET GROUP: 401(k) Plan-Related Class Suit Underway
TWITTER INC: Class Suit Over User Settings Under Appeal in 9th Cir.
TWITTER INC: Trial in California Consolidated Suit Set for Sept. 20
UNITED COLLECTION: Nelson FDCPA Suit Removed to N.D. Illinois
UNITED SERVICES: Class Status Bid Filing Extended to August 7
UNITED STATES: Child Plaintiffs Seek Class Status, Judgment
UPS SUPPLY: Denial of Bid to Certify Class in Hughes Suit Affirmed
WALMART INC: Merck Must File Class Cert. Bid by February 15, 2022
WHITEPAGES INC: Court Denies Bids to Dismiss Lukis Class Suit
WOOD GROUP: Ruizes Sue Over Failure to Pay Overtime Wages
*********
ACELL INC: Taat Employment Suit Removed to C.D. California
----------------------------------------------------------
The case styled MEHRNAZ TAAT, individually and on behalf of all
others similarly situated v. ACELL, INC.; INTEGRA LIFESCIENCES
CORPORATION; and DOES 1 through 100, inclusive, Case No.
21STCV20304, was removed from the Superior Court of the State of
California, County of Los Angeles, to the U.S. District Court for
the Central District of California on July 23, 2021.
The Clerk of Court for the Central District of California assigned
Case No. 2:21-CV-05980 to the proceeding.
The case arises from the Defendants' alleged violations of the Fair
Credit Reporting Act, the California Investigative Consumer
Reporting Agencies Act, the California Worker Adjustment and
Retraining Notification Act, the Consumer Credit Reporting Agencies
Act, the California Labor Code, and the California Business and
Professions Code including failure to indemnify, unfair
competition, failure to produce requested records, and failure to
pay timely wages.
Acell, Inc. is a regenerative medicine company headquartered in
Columbia, Maryland.
Integra LifeSciences Corporation is a medical technology company
with headquarters in Princeton, New Jersey. [BN]
The Defendants are represented by:
John R. Giovannone, Esq.
Linda Wang, Esq.
CDF LABOR LAW LLP
707 Wilshire Boulevard, Suite 5150
Los Angeles, CA 90017
Telephone: (213) 612-6300
E-mail: jgiovannone@cdflaborlaw.com
lwang@cdflaborlaw.com
ADVANCED CALL CENTER: Faces Sorrells Suit for Unpaid Overtime Wages
-------------------------------------------------------------------
TAWANNA SORRELLS, On Behalf of Herself and All Others Similarly
Situated v. ADVANCED CALL CENTER TECHNOLOGIES, LLC, Case
4:21-cv-00883-P (N.D. Tex., July 21, 2021) is an action seeking all
damages available under the Fair Labor Standards Act (FLSA)
including back overtime wages, liquidated damages, legal fees,
costs, and post-judgment interest.
According to the complaint, Plaintiff regularly worked in excess of
40 hours per seven-day workweek as an employee of Defendant. While
Plaintiff was sometimes paid time and one-half her regular rate of
pay for weekly hours worked over 40, she was not paid time and
one-half her regular rate of pay for all hours worked in each and
every such seven-day workweek due to practices and/or policies of
Defendant to not pay Plaintiff for compensable off-the-clock work
during the FLSA continuous workday (i.e. after she began her
workday but before she ended her workday) relative to matters such
as computer program issues, dropped calls, and working with
Defendant's IT department to address those issues.
Plaintiff was an hourly paid employee of Defendant with dates of
employment between June 2020 and April 2021.
Defendant is a foreign for-profit limited liability company. [BN]
The Plaintiff is represented by:
Allen R. Vaught
Vaught Firm, LLC
1910 Pacific Ave., Suite 9150
Dallas, TX 75201
Telephone:(972) 707-7816
Facsimile:(972) 591-4564
E-mail: avaught@txlaborlaw.com
ADVOCATE AURORA: Faces Scardina Suit in Northern Dist. of Illinois
------------------------------------------------------------------
A class action lawsuit has been filed against Advocate Aurora
Health, Inc., et al. The case is captioned as The Estate of
Antoinette Scardina v. Advocate Aurora Health, Inc. et al., Case
No. 1:21-cv-03811 (N.D. Ill., July 16, 2021).
The lawsuit is brought over alleged diversity breach-of-contract
demanding 75,000. The case is assigned to the Hon. Judge Edmond E.
Chang.
The Defendants include Advocate Aurora Health, Inc., and Advocate
Health and Hospitals Corporation doing business as: Advocate Christ
Medical Center.
Advocate Aurora is a non-profit health care system with dual
headquarters located in Milwaukee, Wisconsin, and Downers Grove,
Illinois. The system has 26 hospitals and more than 500 sites of
care.[BN]
The Estate of Antoinette Scardina By and through executor Richard
Scardina individually and on behalf of all others similarly
situated. is represented by:
Stacy Michelle Bardo, Esq.
BARDO LAW, P.C.
22 West Washington Street, Suite 1500
Chicago, IL 60602
Telephone: (312) 219-6980
E-mail: stacy@bardolawpc.com
ALLY FINANCIAL: Phelps WVCCPA Class Suit Removed to S.D. W. Va.
---------------------------------------------------------------
The case styled MICHAEL PHELPS, individually and on behalf of all
others similarly situated v. ALLY FINANCIAL INC., Case No.
16-C-167-D3, was removed from the Circuit Court of Wayne County,
West Virginia, to the U.S. District Court for the Southern District
of West Virginia on July 23, 2021.
The Clerk of Court for the Southern District of West Virginia
assigned Case No. 3:21-cv-00417 to the proceeding.
The case arises from the Defendant's breach of the covenant of good
faith and fair dealing and violation of the West Virginia Consumer
Credit Protection Act by accepting payments via telephone,
including interactive voice recognition, for which a payment
processing fee is charged to consumers located in West Virginia,
who have obtained a loan or had their loan serviced by Ally
Financial.
Ally Financial Inc. is a bank holding company headquartered in
Detroit, Michigan. [BN]
The Defendant is represented by:
John C. Lynch, Esq.
Jason E. Manning, Esq.
Megan E. Burns, Esq.
TROUTMAN PEPPER HAMILTON SANDERS LLP
222 Central Park Avenue, Suite 2000
Virginia Beach, VA 23462
Telephone: (757) 687-7765
Facsimile: (757) 687-1504
E-mail: john.lynch@troutman.com
jason.manning@troutman.com
megan.burns@troutman.com
AMAZON.COM INC: Faces Hudson Suit Over Unlawful Voice Recording
---------------------------------------------------------------
JAMES SPEER and CARLA HUDSON, individually and on behalf of a Class
of similarly situated individuals, v. AMAZON.COM, INC., and A2Z
DEVELOPMENT CENTER, INC., Case No. 2:21-cv-00948-RSM (W.D. Wash.,
July 16, 2021) is about Amazon's unlawful recording, permanent
storage, analysis, and use of the voices and conversations of
individuals communicating with or otherwise heard by Amazon's Alexa
recording devices.
Plaintiff James Speer is a natural person and citizen of the State
of New Mexico. The Plaintiff Carla Hudson is a natural person and a
citizen of the State of Iowa.
From its beginnings as an online bookseller, Amazon has grown to be
perhaps the most powerful company on the planet. It holds the No. 2
position on the Fortune 100 rankings, and is estimated to control
more than half of all ecommerce in the United States. Amazon's
cloud infrastructure arm, Amazon Web Services, is said to account
for 41.5% of the public cloud computing (web hosting) market,
larger than Microsoft, Google, Rackspace and IBM combined, says the
suit.
In 2010, Amazon started to develop the Echo smart speaker and later
launched the "Alexa" voice assistant in 2014. The Alexa Voice
Service (AVS) is Amazon's intelligent voice recognition and natural
language understanding service that allows persons to voice-enable
any connected device that has a microphone and speaker. The device
consists of a speaker, microphones, a computer, internet
connectivity, and the Alexa program.[BN]
The Plaintiff is represented by:
Manish Borde, Esq.
BORDE LAW PLLC
600 Stewart St., 400
Seattle, WA 98101
Telephone: (206) 905-6129
E-mail: mborde@bordelaw.com
- and -
Robert K. Shelquist, Esq.
Rebecca A. Peterson, Esq.
LOCKRIDGE GRINDAL NAUEN P.L.L.P.
100 Washington Avenue South, Suite 2200
Minneapolis, MN 55401
Telephone: (612) 339-6900
Facsimile: (612) 339-0981
E-mail: rkshelquist@locklaw.com
rapeterson@locklaw.com
- and -
J. Barton Goplerud, Esq.
Brian O. Marty, Esq.
Brandon M. Bohlman, Esq.
SHINDLER, ANDERSON, GOPLERUD
& WEESE, P.C.
5015 Grand Ridge Drive, Suite 100
West Des Moines, IO 50265
Telephone: (515) 223-4567
Facsimile: (515) 223-8887
E-mail: goplerud@sagwlaw.com
marty@sagwlaw.com
bohlman@sagwlaw.com
- and -
Charles J. LaDuca, Esq.
Brendan Thompson, Esq.
CUNEO GILBERT & LADUCA, LLP
4725 Wisconsin Avenue NW, Suite 200
Washington, DC 20016
Telephone: 202 789 3960
E-mail: charlesl@cuneolaw.com
brendant@cuneolaw.com
AMAZON.COM: Wiretapping Suit Moved from N.D. Cal. to W.D. Wash.
---------------------------------------------------------------
The class action lawsuit captioned as Terpening v. Amazon.com Inc.,
et al., Case No. 4:21-cv-03739, was removed from the the U.S.
District Court for the United States District Court for Northern
District of California to the U.S. District Court for the United
States District Court for the Western District of Washington
(Seattle) on July 16, 2021.
The Western District of Washington Court Clerk assigned Case No.
2:21-cv-00977-RSM to the proceeding.
The suit involves wiretapping related issues. The case is assigned
to the Hon. Judge Ricardo S. Martinez.
Defendant Amazon is a multinational technology company providing
multiple technology products and services, including its eponymous
e-commerce marketplace, video-on-demand services and, as pertains
to this action, devices and services which make use of its Alexa
virtual assistant ("Alexa Devices"). Sales of Amazon's Alexa
Devices have exploded in the past five years. In four years -- from
Alexa's release in 2015 to 2019 -- Amazon sold over 100 million
Alexa Devices. From January 2019 to January 2020, Amazon doubled
the sales of Alexa Devices, meaning another 100 million Alexa
Devices were sold in just a year.
Amazon represents that its Alexa Devices work by listening for a
specific "wake word" such as "Alexa" which, once spoken, triggers
the Alexa device or service to listen to users and respond to user
commands. What it does not represent, however, is that a "wake
word" does not simply trigger Alexa Devices to listen to and
respond to commands. Rather, when Alexa hears a "wake word," Amazon
initiates a process to create and permanently store recordings of
the interaction, including the user's voice, commands, and other
sounds, and also captures, among other things, usage data, location
data, and other personal information.
Amazon, thus, has millions, of recorded interactions between users
and its Alexa Devices. Worse, not all those recordings contain
conversations that consumers intend for an Alexa Device to hear. In
fact, because Alexa Devices are trained to start recoding when the
device believes it heard a "wake word," user conversations may be
recorded when the Alexa Device misinterprets the user's speech and
incorrectly identifies a "wake word" that was not said. Thus, Alexa
Devices may be recording conversations regardless of whether the
user intended to interact with Alexa at all, the suit says.[BN]
The Plaintiff is represented by:
Brian Charles Gudmundson, Esq.
ZIMMERMAN REED LLP
1100 IDS Center
80 S 8th Street
Minneapolis, MN 55402
Telephone: (612) 341-0400
E-mail: brian.gudmundson@zimmreed.com
- and -
Caleb Marker, Esq.
Jason P. Johnston, Esq.
Michael James Laird, Esq.
ZIMMERMAN REED LLP
2381 Rosecrans Avenue, Suite 328
Manhattan Beach, CA 90245
Telephone: (877) 500-8780
Facsimile: (877) 500-8781
E-mail: caleb.marker@zimmreed.com
jason.johnston@zimmreed.com
Michael.Laird@zimmreed.com
The Defendant is represented by:
Brian D Buckley, Esq.
Esther D. Galan, Esq.
Jedediah Wakefield, Esq.
Laurence F. Pulgram, Esq.
FENWICK & WEST (WA)
1191 Second Ave., 10th floor
Seattle, WA 98101
Telephone: (206) 389-4529
Facsimile: (206) 389-4511
E-mail: bbuckley@fenwick.com
egalan@fenwick.com
jwakefield@fenwick.com
lpulgram@fenwick.com
AMERICAN EXPRESS: Appeal in Anti-Steering Rules Litigation Pending
------------------------------------------------------------------
American Express Company said in its Form 10-Q Report filed with
the Securities and Exchange Commission on July 23, 2021, for the
quarterly period ended June 30, 2021, that the plaintiffs' appeal
in the putative class action suit entitled, In re: American Express
Anti-Steering Rules Antitrust Litigation (II), is still pending.
A putative merchant class action in the Eastern District of New
York, consolidated in 2011 and collectively captioned In re:
American Express Anti-Steering Rules Antitrust Litigation (II),
alleged that provisions in the company's merchant agreements
prohibiting merchants from differentially surcharging the company's
cards or steering a customer to use another network's card or
another type of general-purpose card ("anti-steering" and
"non-discrimination" contractual provisions) violate U.S. antitrust
laws.
On January 15, 2020, our motion to compel arbitration of claims
brought by merchants who accept American Express and to dismiss
claims of merchants who do not was granted. Plaintiffs have
appealed part of this decision.
No further updates were provided in the Company's SEC report.
American Express Company, together with its subsidiaries, provides
charge and credit payment card products, and travel-related
services to consumers and businesses worldwide. It operates through
three segments: Global Consumer Services Group, Global Commercial
Services, and Global Merchant and Network Services. American
Express Company was founded in 1850 and is headquartered in New
York, New York.
AMERICAN EXPRESS: Continues to Defend Marcus Corp Antitrust Suit
----------------------------------------------------------------
American Express Company said in its Form 10-Q Report filed with
the Securities and Exchange Commission on July 23, 2021, for the
quarterly period ended June 30, 2021, that the company continues to
defend itself against an antitrust class action lawsuit entitled,
The Marcus Corporation v. American Express Co., et al.
In July 2004, the company was named as a defendant in a putative
class action filed in the Southern District of New York and
subsequently transferred to the Eastern District of New York,
captioned The Marcus Corporation v. American Express Co., et al.,
in which the plaintiffs allege an unlawful antitrust tying
arrangement between certain of the company's charge cards and
credit cards in violation of various state and federal laws.
The plaintiffs in this action seek injunctive relief and an
unspecified amount of damages.
No further updates were provided in the Company's SEC report.
American Express Company, together with its subsidiaries, provides
charge and credit payment card products, and travel-related
services to consumers and businesses worldwide. It operates through
three segments: Global Consumer Services Group, Global Commercial
Services, and Global Merchant and Network Services. American
Express Company was founded in 1850 and is headquartered in New
York, New York.
AMERICAN EXPRESS: Oliver Putative Class Action Underway
-------------------------------------------------------
American Express Company said in its Form 10-Q Report filed with
the Securities and Exchange Commission on July 23, 2021, for the
quarterly period ended June 30, 2021, that the company continues to
defend a putative class action suit entitled, Anthony Oliver, et
al. v. American Express Company and American Express Travel Related
Services Company Inc.
On January 29, 2019, the company was named in a putative class
action brought in the United States District Court for the Eastern
District of New York, captioned Anthony Oliver, et al. v. American
Express Company and American Express Travel Related Services
Company Inc., in which the plaintiffs are holders of MasterCard,
Visa and/or Discover credit cards (but not American Express cards)
and allege they paid higher prices as a result of our anti-steering
and non-discrimination provisions in violation of federal antitrust
law and the antitrust and consumer laws of various states.
Plaintiffs seek unspecified damages and other forms of relief.
The court dismissed plaintiffs' federal antitrust claim, numerous
state antitrust and consumer protection claims and their unjust
enrichment claim.
The remaining claims in plaintiffs' complaint arise under the
antitrust laws of 11 states and the consumer protection laws of six
states.
No further updates were provided in the Company's SEC report.
American Express Company, together with its subsidiaries, provides
charge and credit payment card products, and travel-related
services to consumers and businesses worldwide. It operates through
three segments: Global Consumer Services Group, Global Commercial
Services, and Global Merchant and Network Services. American
Express Company was founded in 1850 and is headquartered in New
York, New York.
ANTIGUA PHARMACY: Gioules Seeks Unpaid Wages Under FLSA, NYLL
-------------------------------------------------------------
NICK GIOULES v. ANTIGUA PHARMACY LLC and BRENDALIS ANTIGUA, Case
No. 1:21-cv-06400 (S.D.N.Y., July 27, 2021) seeks to recover unpaid
wages, overtime wages, liquidated damages, interest (pre- and
post-judgment), spread-of-hours compensation, and reasonable
attorneys' fees and costs under the Fair Labor Standards Act of
1938 and the New York Labor Law.
According to the complaint, the Defendants have done so by engaging
in a pattern and practice of failing to pay its employees,
including Plaintiff, overtime compensation for all hours worked in
excess of 40 hours for each workweek or the spread-of-hours pay
each employee was entitled to for time worked in excess of 10
hours.
On or since September 1, 2019, Plaintiff was hired by Defendants to
work at the Pharmacy. The Plaintiff regularly worked in excess of
45 hours per week, but was not compensated properly for the actual
number of hours he worked, including for his overtime hours each
week, or for the spread-of- hours pay he was lawfully entitled to
applicable under state and federal laws.
Antigua Pharmacy is a full-service independent pharmacy in Bronx,
New York.[BN]
The Plaintiff is represented by:
Jonathan Shalom, Esq.
SHALOM LAW, PLLC
105-13 Metropolitan Avenue
Forest Hills, NY 11375-6737
Telephone: (718) 971-9474
Facsimile: (718) 865-0943
E-mail: jonathan@shalomlawny.com
APPLE INC: Workman Consumer Suit Moved From D. Conn. to N.D. Cal.
-----------------------------------------------------------------
The case styled KAREN WORKMAN, individually and on behalf of all
others similarly situated v. APPLE, INC., Case No. 3:20-cv-01595,
was transferred from the U.S. District Court for the District of
Connecticut to the U.S. District Court for the Northern District of
California on July 23, 2021.
The Clerk of Court for the Northern District of California assigned
Case No. 5:21-cv-05650-EJD to the proceeding.
In this class suit, the Plaintiff and Class members seek recovery
of all sums paid through in-app purchases in illegal games made
through Apple's App Store pursuant to Section 52-554 of the
Connecticut General Statutes.
Apple, Inc. is a technology company, with its principal place of
business in Cupertino, California. [BN]
The Plaintiff is represented by:
Paul M. Geraghty, Esq.
GERAGHTY & BONNANO, LLC
P.O. Box 231
New London, CT 06320
Telephone: (860) 447-8077
Facsimile: (860) 447-9833
E-mail: pgeraghty@geraghtybonnano.com
- and –
DAVIS & NORRIS, LLP
The Bradshaw House
2154 Highland Avenue
Birmingham, AL 35205
Telephone: (930) 9900
Facsimile: (930) 9989
ARCHER DANIELS: AOT Holding, Maize Capital Seek to Certify Class
----------------------------------------------------------------
In the class action lawsuit captioned as AOT HOLDING AG and MAIZE
CAPITAL GROUP, LLC, individually and on behalf of all others
similarly situated, v. ARCHER DANIELS MIDLAND COMPANY, Case No.
2:19-cv-02240-CSB-EIL (C.D. Ill.), the Plaintiffs asks the Court to
enter an order certifying the following Class under Fed. R. Civ. P.
23:
"All persons who, between November 10, 2017 and September 30,
2019 (the "Class Period"), closed positions in at least 500
contracts of Chicago Ethanol (Platts) Futures (CME symbol:
CU) or Chicago Ethanol (Platts) Average Price Options (CME
symbol: CVR) combined."
Excluded from the Class are Archers Daniels Midland Company
and all of its past, present, or future parents,
subsidiaries, agents, and employees; the judges presiding
over this lawsuit and their staff; and the plaintiffs in Case
Nos. 20-CV-2212, 20-CV-2314, and 20-CV-2332 pending before
this Court.
AOT Holding operates as a holding company. The Company, through its
subsidiaries, provides investment management services.
Archer-Daniels-Midland is an American multinational food processing
and commodities trading corporation founded in 1902 and
headquartered in Chicago, Illinois.
A copy of the Plaintiff's motion to certify class dated July 23,
2021 is available from PacerMonitor.com at https://bit.ly/3rJUFPZ
at no extra charge.[CC]
The Counsel for the Plaintiffs AOT Holding AG, Maize Capital Group
LLC, and the Proposed Class, are:
Michael E. Klenov, Esq.
Stephen M. Tillery, Esq.
Carol L. O'Keefe, Esq.
KOREIN TILLERY LLC
505 North 7th Street, Suite 3600
St. Louis, MO 63101
Telephone: (314) 241-4844
Facsimile: (314) 241-3525
E-mail: stillery@koreintillery.com
mklenov@koreintillery.com
cokeefe@koreintillery.com
- and -
George A. Zelcs, Esq.
John A. Libra, Esq.
Chad E. Bell, Esq.
Ryan Z. Cortazar, Esq.
KOREIN TILLERY LLC
205 North Michigan Ave., Suite 1950
Chicago, IL 60601
Telephone: (312) 641-9750
Facsimile: (312) 641-9751
E-mail: gzelcs@koreintillery.com
jlibra@koreintillery.com
cbell@koreintillery.com
rcortazar@koreintillery.com
BAKER HUGHES: Continues to Defend Consolidated Shareholder Suit
---------------------------------------------------------------
Baker Hughes Company said in its Form 10-Q Report filed with the
Securities and Exchange Commission on July 23, 2021, for the
quarterly period ended June 30, 2021, that the company continues to
defend the consolidated class action suit by Tri-State Joint Fund
and City of Providence.
On August 13, 2019, Tri-State Joint Fund filed in the Delaware
Court of Chancery, a shareholder class action lawsuit for and on
the behalf of itself and all similarly situated public stockholders
of Baker Hughes Incorporated against the General Electric Company
(GE), the former members of the Board of Directors of Baker Hughes
Incorporated ("BHI"), and certain former BHI Officers alleging
breaches of fiduciary duty, aiding and abetting, and other claims
in connection with the combination of BHI and the oil and gas
business (GE O&G) of GE (the Transactions).
On October 28, 2019, the City of Providence filed in the Delaware
Court of Chancery a shareholder class action lawsuit for and on
behalf of itself and all similarly situated public shareholders of
BHI against GE, the former members of the Board of Directors of
BHI, and certain former BHI Officers alleging substantially the
same claims in connection with the Transactions.
The relief sought in these complaints include a request for a
declaration that Defendants breached their fiduciary duties, an
award of damages, pre- and post-judgment interest, and attorneys'
fees and costs.
The lawsuits have been consolidated, and plaintiffs filed a
consolidated class action complaint on December 17, 2019 against
certain former BHI officers alleging breaches of fiduciary duty and
against GE for aiding and abetting those breaches.
The December 2019 complaint omitted the former members of the Board
of Directors of BHI, except for Mr. Martin Craighead who also
served as President and CEO of BHI. Mr. Craighead and Ms. Ross, who
served as Senior Vice President and Chief Financial Officer of BHI,
remain named in the December 2019 complaint along with GE.
The relief sought in the consolidated complaint includes a
declaration that the former BHI officers breached their fiduciary
duties and that GE aided and abetted those breaches, an award of
damages, pre- and post-judgment interest, and attorneys' fees and
costs.
On or around February 12, 2020, the defendants filed motions to
dismiss the lawsuit on the grounds that the complaint failed to
state a claim on which relief could be granted. On or around
October 27, 2020, the Chancery Court granted GE's motion to
dismiss, and granted in part the motion to dismiss filed by Mr.
Craighead and Ms. Ross, thereby dismissing all of the claims
against GE and Ms. Ross, and all but one of the claims against Mr.
Craighead.
Baker Hughes said, "At this time, we are not able to predict the
outcome of the remaining claim."
No further updates were provided in the Company's SEC report.
Baker Hughes Company provides oilfield products and services. The
Company engages in surface logging, drilling, pipeline operations,
petroleum engineering, and fertilizer solutions, as well as offers
gas turbines, valves, actuators, pumps, flow meters, generators,
and motors. Baker Hughes serves oil and gas industries worldwide.
The company is based in Houston, Texas.
BEECH-NUT NUTRITION: Baby Foods Contain Toxic Metals, Andrews Says
------------------------------------------------------------------
ASYIA ANDREWS, individually, and on behalf of all others similarly
situated, v. BEECH-NUT NUTRITION COMPANY, Case No.
1:21-cv-00334-TJM-CFH (N.D.N.Y., July 16, 2021) is a class action
against Nurture based on the Defendant's misleading, deceptive and
unfair business practices with respect to the marketing,
advertising, labeling, packaging and sale of its baby food
products, which contain levels of toxic heavy metals.
The case involves a straightforward and systematic course of false,
misleading, and unlawful conduct: the Defendant has allegedly
misrepresented and falsely advertised that the baby food products
it sells are organic, nutritious, high quality, and safe for
consumption by infants and young children.
Parents and other caregivers, including the Plaintiff and members
of the Class and Subclasses, reasonably believe that the baby food
they purchase will be healthy, nutritious, and free from harmful
substances and contaminants. However, on February 4, 2021, the
United States House of Representatives Subcommittee on Economic and
Consumer Policy, Committee on Oversight and Reform ("Subcommittee")
published a report ("Subcommittee Report"), revealing its findings
that numerous baby foods, including those manufactured by the
Defendant Nurture, are "tainted with significant levels of toxic
heavy metals, including arsenic, lead, cadmium, and mercury."
Given the health risks associated with the consumption of high
levels of toxic heavy metals, the presence of these substances is
material to consumers.
The Plaintiff seeks for breach of express and implied warranty,
fraud by omission, intentional and negligent misrepresentation,
quasi contract, unjust enrichment, and restitution, and for
violations of Minnesota Prevention of Consumer Fraud Act, and
Minnesota False Statement in Advertising Act.
The Plaintiff and the class believed they were feeding their
children healthy, nutritious foods during the time they purchased
and fed their children Defendant Beech-Nut's baby food products.
Due to the false and misleading claims and omissions by Beech-Nut,
the Plaintiffs were unaware that the baby food products sold by
Defendant Beech-Nut contained any level of toxic heavy metals, and
Plaintiffs would not have purchased the products if that
information had been fully disclosed.
Beech-Nut does business throughout the United States, and sells
baby food products online and at brick-and-mortar retail
stores.[BN]
Counsel for Plaintiff and the Proposed Class, are:
James E. Hacker, Esq.
Randolph Treece, Esq.
Julie A. Nociolo, Esq.
E. STEWART JONES HACKER MURPHY LLP
28 Second Street
Troy, NY 12180
Telephone: (518) 274-5820
E-mail: jhacker@joneshacker.com
rtreece@joneshacker.com
jnociolo@joneshacker.com
- and -
Michael P. Canty, Esq.
Carol Villegas, Esq.
LABATON SUCHAROW LLP
140 Broadway
New York, NY 10005
Telephone: (212) 907-0700
Facsimile: (212) 818-0477
E-mail: mcanty@labaton.com
cvillegas@labaton.com
BELDEN INC: Edke Suit Moved From N.D. Illinois to E.D. Missouri
---------------------------------------------------------------
Judge Joan B. Gottschall of the U.S. District Court for the
Northern District of Illinois, Eastern Division, transfers the
case, Anand Edke, Plaintiff v. Belden Inc., Defendant, Case No.
21-CV-0813 (N.D. Ill.), to the U.S. District Court for the Eastern
District of Missouri in the interest of justice.
The lawsuit is one of two proposed national class actions stemming
from a breach of Defendant Belden's computer network. Beginning in
late November 2020, Belden began notifying current and former
employees, their dependents, and their beneficiaries that unknown
third parties gained unauthorized access to files containing their
personally identifiable information, such as names, birth dates,
and social security numbers.
Former Belden employee and Plaintiff, Edke, filed the class action
complaint against Belden in the Circuit Court of Cook County,
Illinois, on Jan. 6, 2021, alleging claims of negligence,
negligence per se, unjust enrichment, breach of implied contract,
and violation of the Illinois Personal Information Protection Act.
Edke worked for Belden in Illinois from 2007-11. He has lived in
Schaumburg, Illinois, a Chicago suburb, at all relevant times.
Mr. Edke seeks to represent a nationwide class of individuals whose
personally identifiable information was compromised in the data
breach as well as a subclass of Illinois residents.
Belden removed Edke's complaint to the Court based on the federal
diversity jurisdiction statute, 28 U.S.C. Section 1332(a), and then
filed its pending motion to dismiss Edke's complaint or,
alternatively, to transfer this case to the district where Belden's
St. Louis headquarters is located.
After reviewing the briefing on the motion to dismiss, the Court
ordered the parties to brief two subject matter jurisdiction
questions: (1) whether Edke has Article III standing and (2)
whether Edke's individual claim satisfies the $75,000 amount in
controversy requirement for diversity jurisdiction. It also sought
the parties' views on the order in which the Court should decide
the pending subject matter jurisdiction, personal jurisdiction,
venue, and merits questions.
Kia Mackey filed the other potential class action arising out of
the Belden data breach -- Mackey v. Belden, Inc., No.
4:21-cv-149-JAR (E.D. Mo.). Mackey filed her complaint on Feb. 4,
2021, about a month after Edke filed his complaint in Illinois
state court. Mackey subsequently amended her complaint. Mackey
brings eight claims under Missouri and Indiana law. Like Edke,
Mackey seeks to represent a national class of current and former
employees, as well as their dependents and beneficiaries, impacted
by the data breach.
Belden filed a motion to dismiss Mackey's amended complaint. Many
of Belden's arguments for dismissing Mackey's complaint overlap
with Belden's arguments in support of its motion to dismiss Edke's
complaint. As in the case, Belden's motion to dismiss Mackey's
complaint has been fully briefed.
I. Sequence of Issues
The parties disagree about whether venue should come before or
after subject matter and personal jurisdiction. Edke argues that
the jurisdictional questions should precede venue, citing Leroy v.
Great Western United Corp., 443 U.S. 173 (1979). In Leroy, the
Supreme Court stated that the "question of personal jurisdiction,
which goes to the court's power to exercise control over the
parties, is typically decided in advance of venue, which is
primarily a matter of choosing a convenient forum."
As indicated in the Court's briefing order, the law of Article III
standing in data breach cases has evolved rapidly over the past
decade, making this a relatively "complex area of standing law."
The relative ease of determining venue before subject-matter
jurisdiction is an issue of judicial economy. After weighing
judicial economy, Judge Gottschall reaches venue first for three
reasons.
First, the standing question-whether Edke has alleged injury in
fact satisfying Article III's case or controversy requirement --
has implications for members of the proposed classes in the case
and in Mackey. If transfer is appropriate, judicial economy favors
leaving the standing question for the transferee court. Second,
Belden concedes that the transferee court has personal jurisdiction
over it. So if transfer is appropriate, Belden's challenge to
personal jurisdiction in Illinois will fall out of the case.
Third, the venue issue is relatively clear and straightforward.
II. Change of Venue Analysis
A. Convenience Factors
The party seeking a venue transfer bears the burden to "clearly
specify the key witnesses to be called and make at least a
generalized statement of what their testimony would include."
elden is not a small company with a single geographic locus, making
it unreasonable to presume that sources of proof are concentrated
near Belden's headquarters. Edke identifies several sources of
proof that might not be found near Belden's headquarters in his
response to the pending motion: servers (computers), information
technology personnel, and vendors. Belden neither disputes the
importance of these potential sources of proof nor specifies where
they are likely located.
Judge Gottschall holds that this is insufficient to carry Belden's
burden to show clearly that the witnesses' convenience or access to
sources of proof favors transfer. For these reasons, and in the
absence of any clear showing from Belden, the private interest
factors do not favor transfer to any significant degree.
B. Interest of Justice
Belden focuses primarily on the interest of justice factor s.
Belden stresses the increased efficiency of transferring these two,
very similar proposed national class actions to a single court. The
interest of justice analysis "relates to the efficient
administration of the court system."
Judge Gottschall opines that the efficiencies to be gained by
transferring the Edke and Mackey actions to a single forum
"together weighs heavily in favor of transfer." Weighed in their
totality, the interest of justice factors favor the Eastern
District of Missouri. In short, transfer will very likely realize
significant savings of time and resources by facilitating the
efficient, coordinated management of two overlapping proposed
national class actions in a forum with significantly less civil
docket congestion.
Conclusion
Judge Gottschall concludes that most of the convenience factors are
neutral. The interest of justice factors, including the obvious
efficiencies of treating these parallel cases in one court, favor
transfer. Indeed, transfer will immediately eliminate the need to
address personal jurisdiction in Illinois.
Accordingly, Belden's motion under 28 U.S.C. Section 1404(a) to
transfer the case to the U.S. District Court for the Eastern
District of Missouri is granted. Belden's motion to dismiss for
lack of personal jurisdiction is denied as moot. The remainder of
Belden's motion to dismiss is left for the transferee court.
A full-text copy of the Court's July 16, 2021 Memorandum Opinion &
Order is available at https://tinyurl.com/9bd98j24 from
Leagle.com.
BOB BAFFERT: Faces Beychok Suit Over Illegal Doping in Horse Racing
-------------------------------------------------------------------
MICHAEL E. BEYCHOK, JUSTIN WUNDERLER, KEITH MAUER, and JEFFREY
KAUFMAN, on behalf of themselves and all others similarly situated,
Plaintiffs v. ROBERT A. BAFFERT and BOB BAFFERT RACING STABLES,
INC., Defendants, Case No. 2:21-cv-14112 (D.N.J., July 23, 2021) is
a class action against the Defendants for common law fraud,
equitable fraud, and violations of the federal Racketeer Influenced
and Corrupt Organizations Act and the New Jersey Racketeer
Influenced and Corrupt Organizations Act.
The case arises from the Defendants' multiple and repeated acts of
illegally doping and entering horses into thoroughbred races across
the country, which constitute a pattern of racketeering activity.
Moreover, the Defendants engaged in common law and equitable fraud
by making misrepresentations to bettors that they entered a horse
that complied with the race track rules to induce them to make
wagers. As a result of the Defendants' alleged unlawful conduct,
the Plaintiffs were damaged through the loss of their bets and
winnings.
Bob Baffert Racing Stables, Inc. is a licensed horse trainer based
in Los Angeles County, California. [BN]
The Plaintiffs are represented by:
Gary S. Graifman, Esq.
Melissa R. Emert, Esq.
KANTROWITZ, GOLDHAMER & GRAIFMAN, P.C.
135 Chestnut Ridge Rd., Suite 200
Montvale, NJ 07645
Telephone: (201) 391-7000
Facsimile: (201) 307-1086
E-mail: memert@kgglaw.com
ggraifman@kgglaw.com
- and –
William B. Federman, Esq.
FEDERMAN & SHERWOOD
10205 N. Pennsylvania Ave.
Oklahoma City, OK 73120
Telephone: (405) 235-1560
Facsimile: (405) 239-2112
E-mail: wbf@federmanlaw.com
- and –
Daniel P. Markoff, Esq.
Jeffrey R. Atkins, Esq.
ATKINS MARKOFF ADLER LAW FIRM
9211 Lake Hefner Parkway, Ste. 104
Oklahoma City, OK 73120
Telephone: (405) 607-8757
Facsimile: (405) 607-8749
- and –
Robert S. Green, Esq.
GREEN & NOBLIN, P.C.
2200 Larkspur Landing Circle, Suite 101
Larkspur, CA 94939
Telephone: (415) 477-6700
Facsimile: (415) 477-6710
E-mail: gnecf@classcounsel.com
BOEING CO: Court Grants Earl Leave to Rely Upon Allenby Report
--------------------------------------------------------------
In the case, DAMONIE EARL, ET AL., Plaintiffs v. THE BOEING
COMPANY, ET AL., Defendants, Civil Action No. 4:19-cv-507 (E.D.
Tex.), Judge Amos L. Mazzant of the U.S. District Court for the
Eastern District of Texas, Sherman Division, granted the
Plaintiffs' Motion for Leave to Rely upon the Supplemental Report
of Dr. Greg Allenby.
The case arises out of allegations made by the Plaintiffs that
Defendants Boeing and Southwest Airlines Co. colluded to cover up
fatal defects in Boeing's 737 MAX 8 aircraft and encourage public
confidence to fly aboard these aircrafts while aware of the
defects. The Defendants deny these allegations.
Under the operative scheduling order, Sept. 10, 2020, was the
parties' deadline to designate all opening expert witnesses related
to class certification and serve all opening expert reports related
to class certification, and Oct. 15, 2020, was the parties'
deadline to designate all rebuttal expert witnesses related to
class certification and serve rebuttal expert reports related to
class certification. Dr. Greg Allenby, one of the Plaintiffs'
experts, served his opening expert report on Sept. 10, 2020. Then
on Oct. 15, 2020, four experts served rebuttal reports to Allenby's
opening report. The Plaintiffs gave these reports to Allenby on
Oct. 23, 2020.
On Nov. 11, 2020, Allenby completed the preparation of, and the
Plaintiffs served, "a ten-page supplemental report" that "addressed
the criticisms made by" the Defendants' rebuttal reports. The
Plaintiffs purport that the Report summarizes Allenby's opening
report and explains the initial analysis in light of the
Defendants' rebuttal reports. After receiving the Report, the
Defendants objected to it.
On Nov. 18, 2020, the Plaintiffs filed their Motion for Leave to
Rely upon the Supplemental Report of Dr. Greg Allenby, currently
before the Court. On Dec. 2, 2020, the Defendants jointly filed a
response. On Dec. 10, 2020, the Plaintiffs filed their reply. And
on Dec. 18, 2020, the Defendants jointly filed a sur-reply.
The Plaintiffs seek permission to rely on the Report via two
avenues: Rule 26(e)(2) and Rule 16(b)(4) of the Federal Rules of
Civil Procedure. Because the Rule 16(b)(4) analysis is
dispositive, Judge Mazzant does not engage the Rule 26(e)(2)
argument.
Analysis
Regardless of characterization, the parties were required to file
all forms of expert reports by Oct. 15, 2020. The Plaintiffs filed
the Report on Nov. 11, 2020. Because the Plaintiffs filed the
Report after the applicable deadline passed, they must show good
cause to modify the scheduling order under Rule 16(b)(4). As such,
Judge Mazzant considers the quartet of good-cause factors to
determine if a modification to the scheduling order may be
granted.
First, the Judge holds that the Plaintiffs' explanation for failure
to timely file the Report weighs in favor of modification. Second,
considering the importance of the Report, he holds that the
importance of Allenby's testimony is apparent. Third, as for the
potential prejudice in allowing the Report, the Defendants admit
that the Report does not cause prejudice. It is also difficult to
understand how the Defendants have been prejudiced by the Report
when they have also taken the opportunity at multiple points in the
litigation to attack its contents. Finally, regarding the
continuance factor, nowhere in the response or sur-reply do the
Defendants actually request a continuance.
Conclusion
The Rule 16(b)(4) analysis is holistic, such that the Court does
not mechanically count the number of factors that favor each side
but rather focuses on the diligence of the party seeking to modify
the scheduling order. Considering the factors in this light, Judge
Mazzant finds there is good cause under Rule 16(b)(4) to allow the
Report. Accordingly, he granted the Plaintiffs' Motion for Leave
to Rely upon the Supplemental Report of Dr. Greg Allenby.
A full-text copy of the Court's July 16, 2021 Memorandum Opinion &
Order is available at https://tinyurl.com/yhp47dmw from
Leagle.com.
BOSCH SOLAR: Parties Stipulate to Continue Briefing Dates
---------------------------------------------------------
In the class action lawsuit captioned as STEVE R. ROJAS and ANDREA
N. ROJAS, on behalf of themselves and all others similarly
situated, v. BOSCH SOLAR ENERGY CORPORATION; and DOES 1-20,
inclusive, Case No. e 5:18-cv-05841-BLF (N.D. Cal.), the Parties
ask the Court granting their stipulation to continue briefing
deadlines and hearing date on motion for class certification.
The parties stipulated that Bosch Solar's opposition briefing will
be due no later than August 20, 2021, and Plaintiffs' reply
briefing will be due no later than October 5, 2021.
A copy of the Parties motion dated July 23, 2021 is available from
PacerMonitor.com at https://bit.ly/2TMvPSR at no extra charge.[CC]
The Plaintiffs are represented by:
David Birka-White, Esq.
BIRKA-WHITE LAW OFFICES
Law Offices, 178 E Prospect Ave
Danville, CA 94526-3812
Telephone: (925) 362-9999
Facsimile: (925) 362-9970
E-mail: dbw@birka-white.com
The Defendants are represented by:
MATTHEW G. BALL (SBN 208881)
K&L GATES LLP
Four Embarcadero Center, Suite 1200
San Francisco, California 94111
Telephone: +1 415 249 1014
Facsimile: +1 415 882 8220
matthew.ball@klgates.com
- and -
John W. Rotunno, Esq.
Joseph C. Wylie II, Esq.
K&L GATES LLP
70 West Madison Street, Suite 3300
Chicago, IL 60602
Telephone: (312) 372 1121
Facsimile: (312) 345 9976
E-mail: john.rotunno@klgates.com
joseph.wylie@klgates.com
BROSNAN RISK: Murillo Wage-and-Hour Suit Goes to C.D. California
----------------------------------------------------------------
The case styled RAYMOND MURILLO, individually and on behalf of all
others similarly situated v. BROSNAN RISK CONSULTANTS, LTD; and
DOES 1 through 20, inclusive, Case No. CIVSB2106646, was removed
from the Superior Court of the State of California, County of San
Bernardino, to the U.S. District Court for the Central District of
California on July 23, 2021.
The Clerk of Court for the Central District of California assigned
Case No. 5:21-cv-01232 to the proceeding.
The case arises from the Defendant's alleged violations of the
California Labor Code and the California Business and Professions
Code including failure to pay minimum wages, failure to pay
overtime wages, failure to provide meal periods, failure to permit
rest breaks, failure to reimburse business expenses, failure to
provide accurate itemized wage statements, failure to pay weekly,
failure to pay all wages due upon separation of employment, and
unfair business practices.
Brosnan Risk Consultants, Ltd. is a security services company
headquartered in New York. [BN]
The Defendant is represented by:
Matthew C. Sgnilek, Esq.
Andrea Rosenkranz, Esq.
O'HAGAN MEYER LLP
4695 MacArthur Court, Suite 210
Newport Beach, CA 92660
Telephone: (949) 942-8500
Facsimile: (949) 942-8510
E-mail: msgnilek@ohaganmeyer.com
arosenkranz@ohaganmeyer.com
CALIFORNIA CEMETERY: Harp Labor Suit Removed to E.D. California
---------------------------------------------------------------
The case styled SCOTT HARP, individually and on behalf of all
others similarly situated v. CALIFORNIA CEMETERY AND FUNERAL
SERVICES, LLC and DOES 1 to 100, inclusive, Case No. BCV-21-101299,
was removed from the Superior Court of the State of California,
County of Kern, to the U.S. District Court for the Eastern District
of California on July 23, 2021.
The Clerk of Court for the Eastern District of California assigned
Case No. 1:21-at-00757 to the proceeding.
The case arises from the Defendant's alleged violations of the
California Labor Code and the California Business and Professions
Code by failing to timely furnish accurate itemized wage statements
and unfair business practices.
California Cemetery and Funeral Services, LLC is a provider of
cemetery and funeral services doing business in California. [BN]
The Defendant is represented by:
Carrie M. Francis, Esq.
STINSON LLP
1850 North Central Avenue, Suite 2100
Phoenix, AZ 85004-4584
Telephone: (602) 279-1600
Facsimile: (602) 240-6925
E-mail: carrie.francis@stinson.com
CARRY BAG: Rosas Suit Seeks Unpaid Wages Under FLSA, NYLL
---------------------------------------------------------
LUIS ALBERTO DZUL ROSAS, on behalf of herself and others similarly
situated, v. CARRY BAG CO., CARRY BAG COMPANY INC., PARWINDER
SINGH, BANINDER SINGH, and JOHN DOES 1-5, Case No. 1:21-cv-04203
(E.D.N.Y., July 27, 2021) seeks to recover from Defendants unpaid
minimum wages, unpaid overtime compensation, liquidated damages,
prejudgment and post-judgment interest, and attorneys' fees and
costs pursuant to the Fair Labor Standards Act and the New York
Labor Law.
The Plaintiff contends that Defendants knowingly and willfully
operated their business with a policy of not paying her and other
similarly situated employees either the FLSA overtime rate (of time
and one-half), or the New York State overtime rate (of time and
one-half), in direct violation of the FLSA and NYLL and the
supporting federal and New York State Department of Labor
Regulations.
The Plaintiff was continuously employed by the Defendants to work
as a warehouseman from February 2015 until June 10, 2021,
performing duties including, but not necessarily limited to,
preparing customer orders for delivery. The work performed by
Plaintiff was directly essential to the business operated by the
Defendants.
CarryBag Company is a privately owned New Zealand Company
specializing in customized packaging for retail outlets and special
event marketing.[BN]
The Plaintiff is represented by:
Justin Cilenti, Esq.
Peter H. Cooper, Esq.
CILENTI & COOPER, PLLC
10 Grand Central
155 East 44th Street, 6th Floor
New York, NY 10017
Telephone: (212) 209-3933
Facsimile: (212) 209-7102
E-mail: info@jcpclaw.com
CENTENE CORP: Faces Data Breach Related Putative Class Suits
------------------------------------------------------------
Centene Corporation said in its Form 10-Q Report filed with the
Securities and Exchange Commission on July 27, 2021, for the
quarterly period ended June 30, 2021, that the company continues to
defend putative class action suits related to data breach involving
Accellion Inc.'s File Transfer Appliance.
In January 2021, the company learned that Accellion File Transfer
Appliance, a third-party data transfer provider with whom the
company contract, had a system vulnerability that resulted in
unauthorized access to certain sensitive data of its customers,
including protected health information, as well as unauthorized
access to the data of several of Accellion's other clients.
This incident led to putative class action lawsuits that were filed
against the company and its subsidiaries, Health Net, LLC, Health
Net of California, Inc., Health Net Life Insurance Company, Health
Net Community Solutions, Inc., and California Health & Wellness,
and Accellion on behalf of the affected customers in April 2021.
The company do not believe that this incident is likely to have a
material adverse effect on our business, reputation, results of
operations, financial position and cash flows. However, there can
be no assurance that the January 2021 incident and other privacy or
security breaches will not require the company to expend
significant resources to remediate any damage, interrupt its
operations and damage its business or reputation, subject the
company to state, federal, or international agency review, and
result in enforcement actions, material fines and penalties,
litigation or other actions which could have a material adverse
effect on the company's business, reputation, results of
operations, financial position and cash flows.
Centene Corporation, incorporated on September 26, 2001, is a
healthcare company. The Company provides a portfolio of services to
government-sponsored healthcare programs, focusing on underinsured
and uninsured individuals. The Company operates through two
segments: Managed Care and Specialty Services. It provides
member-focused services through locally based staff by assisting in
accessing care, coordinating referrals to related health and social
services and addressing member concerns and questions. It also
provides education and outreach programs to inform and assist
members in accessing appropriate healthcare services. The company
is based in St. Louis, Missouri.
CENTENNIAL BANK: Filing of Class Cert. Bid Due October 11
---------------------------------------------------------
In the class action lawsuit captioned as SIMEON PENTON, on behalf
of himself and all others similarly situated, v. CENTENNIAL BANK,
et al., Case No. 4:18-cv-00450-AW-MAF (N.D. Fla.), the Hon. Judge
entered a scheduling order granting the parties' joint motion for
extension of certain deadlines and establishment of other deadlines
as follows:
-- Initial expert disclosures deadline August 13, 2021
-- Initial expert deposition deadline August 27, 2021
-- Fact discovery deadline Sept. 10, 2021
-- Rebuttal expert reports deadline Sept. 13, 2021
-- Mediation completion deadline Sept. 24, 2021
-- Class Certification motion October 11, 2021
deadline
Centennial Bank is a customer-focused bank that provides a broad
range of commercial and retail banking and related financial
services to businesses and investors.
A copy of the Court's order dated July 23, 2021 is available from
PacerMonitor.com at https://bit.ly/3ify5eQ at no extra charge.[CC]
CLARK COUNTY, NV: Allison's LSR 2-1-Compliant Suit Due Sept. 14
---------------------------------------------------------------
In the case, RONALD J. ALLISON, Plaintiff v. CCDC, Defendant, Case
No. 2:21-cv-01324-APG-DJA (D. Nev.), Magistrate Judge Daniel J.
Albregts of the U.S. District Court for the District of Nevada
ruled that the Plaintiff will have until Sept. 14, 2021, to submit
his complaint in compliance with Local Special Rule 2-1.
On July 9, 2021, the Plaintiff, an inmate in the custody of the
Clark County Detention Center ("CCDC"), submitted two documents
titled Complaint & Class Action Lawsuit and Official Request for
Federal Government Assistance. The Plaintiff has not submitted an
application to proceed in forma pauperis or paid the full $402
filing fee in the matter.
Judge Albregts notes that the Plaintiff has titled his document at
ECF No. 1-1 Complaint & Class Action Lawsuit. However, the
Plaintiff's document at ECF No. 1-1 does not comply with Local
Special Rule 2-1. Under LSR 2-1, a civil rights complaint filed by
a person who is not represented by an attorney must be submitted on
the form provided by the court or must be legible and contain
substantially all the information called for by the court's form.
As such, the Judge grants the Plaintiff a one-time extension until
Sept. 14, 2021 to submit complaint to the Court in compliance with
LSR 2-1. He also provides the Plaintiff a copy of the Court's
Section 1983 complaint form with instructions.
To apply for in forma pauperis status, the inmate must submit all
three of the following documents to the Court: (1) a completed
Application to Proceed in Forma Pauperis for Inmate, the Court's
approved form (i.e. pages 1 through 3 with the inmate's two
signatures on page 3), (2) a Financial Certificate properly signed
by both the inmate and a prison or jail official (i.e. page 4 of
this Court's approved form), and (3) a copy of the inmate's prison
or jail trust fund account statement for the previous six-month
period.
The Judge also grants the Plaintiff a one-time extension to file a
fully complete application to proceed in forma pauperis containing
all three of the required documents, or in the alternative, pay the
full $402 filing fee for the action by Sept. 14, 2021. Absent
unusual circumstances, the Judge will not grant any further
extensions of time. If the Plaintiff does not file a fully
complete application to proceed in forma pauperis with all three
required documents or pay the full $402 filing fee by Sept. 14,
2021, the case will be subject to dismissal without prejudice for
the Plaintiff to file a new case with the Court when he has all
three of the documents needed to file a fully complete application
to proceed in forma pauperis or pays the full $402 filing fee.
A dismissal without prejudice means the Plaintiff does not give up
the right to refile the case with the Court, under a new case
number, when the Plaintiff has all three documents needed to submit
with an application to proceed in forma pauperis. Alternatively,
the Plaintiff may choose not to file an application to proceed in
forma pauperis and instead pay the full filing fee of $402 by Sept.
14, 2021 to proceed with the case.
For the foregoing reasons, Judge Albregts ordered the Clerk of the
Court to send to the Plaintiff the approved form for filing a
Section 1983 complaint, instructions for the same, and a copy of
his original documents at ECF Nos. 1-1 and 1-2.
The Plaintiff will have until Sept. 14, 2021 to submit complaint to
the Court in compliance with LSR 2-1. If the Plaintiff does not
file a complaint in compliance with LSR 2-1 by Sept. 14, 2021, the
case will be subject to dismissal without prejudice for the
Plaintiff to refile the case with the Court, under a new case
number, when he is able to file a complaint in compliance with LSR
2-1.
The Clerk of the Court will also send the Plaintiff the approved
form application to proceed in forma pauperis by an inmate, as well
as the document entitled information and instructions for filing an
in forma pauperis application. By Sept. 14, 2021, the Plaintiff
will either pay the full $402 filing fee for a civil action (which
includes the $350 filing fee and the $52 administrative fee) or
file with the Court: (1) a completed Application to Proceed in
Forma Pauperis for Inmate on the Court's approved form (i.e. pages
1 through 3 of the form with the inmate's two signatures on page
3), (2) a Financial Certificate properly signed by both the inmate
and a prison or jail official (i.e. page 4 of the Court's approved
form), and (3) a copy of the inmate's prison or jail trust fund
account statement for the previous six-month period.
If the Plaintiff does not file a fully complete application to
proceed in forma pauperis with all three documents or pay the full
$402 filing fee for a civil action by Sept. 14, 2021, the case will
be subject to dismissal without prejudice for the Plaintiff to
refile the case with the Court, under a new case number, when the
Plaintiff has all three documents needed to file a complete
application to proceed in forma pauperis or pays the full $402
filing fee.
A full-text copy of the Court's July 16, 2021 Order is available at
https://tinyurl.com/9xrpmvs from Leagle.com.
CONAGRA BRANDS: Appeal in Firefighters Pension Fund Suit Pending
----------------------------------------------------------------
Conagra Brands, Inc. said in its Form 10-K report filed with the
U.S. Securities and Exchange Commission on July 23, 2021, for the
fiscal year ended May 30, 2021, that the plaintiff in West Palm
Beach Firefighters' Pension Fund v. Conagra Brands, Inc., et al.,
filed a notice of appeal of the trial court's decision to the U.S.
Court of Appeals for the Seventh Circuit.
The Company, its directors, and several of its executive officers
are defendants in several class actions alleging violations of
federal securities laws. The lawsuits assert that the Company's
officers made material misstatements and omissions that caused the
market to have an unrealistically positive assessment of the
Company's financial prospects in light of the acquisition of
Pinnacle, thus causing the Company's securities to be overvalued
prior to the release of the Company's consolidated financial
results on December 20, 2018 for the second quarter of fiscal year
2019.
The first of these lawsuits, captioned West Palm Beach
Firefighters' Pension Fund v. Conagra Brands, Inc., et al., with
which subsequent lawsuits alleging similar facts have been
consolidated, was filed on February 22, 2019 in the U.S. District
Court for the Northern District of Illinois.
That consolidated lawsuit was dismissed with prejudice on December
23, 2020 for failure to state a claim.
On January 22, 2021, the plaintiff filed a notice of appeal of the
trial court's decision to the U.S. Court of Appeals for the Seventh
Circuit.
In addition, on May 9, 2019, a stockholder filed a derivative
action on behalf of the Company against the Company's directors
captioned Klein v. Arora, et al. in the U.S. District Court for the
Northern District of Illinois asserting harm to the Company due to
alleged breaches of fiduciary duty and mismanagement in connection
with the Pinnacle acquisition. On July 9, 2019, September 20, 2019,
and March 10, 2020, the Company received three separate demands
from stockholders under Delaware law to inspect the Company's books
and records related to the Board of Directors' review of the
Pinnacle business, acquisition, and the Company's public statements
related to them.
On July 22, 2019 and August 6, 2019, respectively, two additional
stockholder derivative lawsuits captioned Opperman v. Connolly, et
al. and Dahl v. Connolly, et al. were filed in the U.S. District
Court for the Northern District of Illinois asserting similar facts
and claims as the Klein v. Arora, et al. matter. On October 21,
2019, the Company received an additional demand from a stockholder
under Delaware law to appoint a special committee to investigate
the conduct of certain officers and directors in connection with
the Pinnacle acquisition and the Company's public statements.
All remaining stockholder lawsuits and demands are currently stayed
by agreement pending the final outcome of the West Palm Beach
Firefighters' Pension Fund matter.
Conagra said, "We have put the Company's insurance carriers on
notice of each of these securities and stockholder matters. While
we cannot predict with certainty the results of these or any other
legal proceedings, we do not expect these matters to have a
material adverse effect on our financial condition, results of
operations, or business."
Conagra Brands, Inc., together with its subsidiaries, operates as a
food company in North America. The company operates through Grocery
& Snacks, Refrigerated & Frozen, International, and Foodservice
segments. The company was formerly known as ConAgra Foods, Inc. and
changed its name to Conagra Brands, Inc. in November 2016. Conagra
Brands, Inc. was founded in 1919 and is headquartered in Chicago,
Illinois.
CONAGRA BRANDS: Appellate Court Rejects Settlement in Briseno Suit
------------------------------------------------------------------
Conagra Brands, Inc. said in its Form 10-K report filed with the
U.S. Securities and Exchange Commission on July 23, 2021, for the
fiscal year ended May 30, 2021, that the appellate court rejected
the settlement in Briseno v. ConAgra Foods, Inc. and remanded to
the trial court for further proceedings.
The company is a party to a number of putative class action
lawsuits challenging various product claims made in the Company's
product labeling. These matters include Briseno v. ConAgra Foods,
Inc. in which it is alleged that the labeling for Wesson(R) oils as
100% natural is false and misleading because the oils contain
genetically modified plants and organisms.
In February 2015, the U.S. District Court for the Central District
of California granted class certification to permit plaintiffs to
pursue state law claims. The Company appealed to the United States
Court of Appeals for the Ninth Circuit, which affirmed class
certification in January 2017.
The Supreme Court of the United States declined to review the
decision and the case was remanded to the trial court for further
proceedings. On April 4, 2019, the trial court granted preliminary
approval of a settlement in this matter.
In the second quarter of fiscal 2020, a single objecting class
member appealed the court's decision approving the settlement to
the United States Court of Appeals for the Ninth Circuit.
On June 1, 2021, the appellate court rejected the settlement and
remanded to the trial court for further proceedings.
Conagra Brands said, "While we cannot predict with certainty the
results of this or any other legal proceeding challenging our
product claims, we do not expect these matters to have a material
adverse effect on our financial condition, results of operations,
or business."
Conagra Brands, Inc., together with its subsidiaries, operates as a
food company in North America. The company operates through Grocery
& Snacks, Refrigerated & Frozen, International, and Foodservice
segments. The company was formerly known as ConAgra Foods, Inc. and
changed its name to Conagra Brands, Inc. in November 2016. Conagra
Brands, Inc. was founded in 1919 and is headquartered in Chicago,
Illinois.
CONAGRA BRANDS: Negrete Settlement Granted Preliminary Approval
---------------------------------------------------------------
Conagra Brands, Inc. said in its Form 10-K report filed with the
U.S. Securities and Exchange Commission on July 23, 2021, for the
fiscal year ended May 30, 2021, that the court granted preliminary
approval of the settlement in Negrete v. ConAgra Foods, Inc.
The company is a party to matters challenging the Company's wage
and hour practices. These matters include a number of class actions
consolidated under the caption Negrete v. ConAgra Foods, Inc., et
al, pending in the U.S. District Court for the Central District of
California, in which the plaintiffs allege a pattern of violations
of California and/or federal law at several current and former
Company manufacturing facilities across the State of California.
On June 21, 2021, the trial court granted preliminary approval of a
settlement in this matter.
Conagra Brands said, "If final approval is obtained, the settlement
will require a payment by the Company of $9.0 million, which we
have accrued within other accrued liabilities. While we cannot
predict with certainty the results of this or any other legal
proceeding, we do not expect this matter to have a material adverse
effect on our financial condition, results of operations, or
business."
Conagra Brands, Inc., together with its subsidiaries, operates as a
food company in North America. The company operates through Grocery
& Snacks, Refrigerated & Frozen, International, and Foodservice
segments. The company was formerly known as ConAgra Foods, Inc. and
changed its name to Conagra Brands, Inc. in November 2016. Conagra
Brands, Inc. was founded in 1919 and is headquartered in Chicago,
Illinois.
DEL TACO: Bid to Oppose Class Certification Bid Pending
-------------------------------------------------------
Del Taco Restaurants, Inc. said in its Form 10-Q Report filed with
the Securities and Exchange Commission on July 23, 2021, for the
quarterly period ended June 15, 2021, that its motion to oppose
plaintiff's motion for class certification, is pending.
In March 2014, a former Del Taco employee filed a purported class
action complaint alleging that Del Taco has not appropriately
provided meal breaks and failed to pay wages to its California
hourly employees.
On March 24, 2021, Del Taco filed its motion to oppose the
plaintiff's motion for class certification. Discovery remains in
process and Del Taco intends to assert all of its defenses to this
threatened class action and the individual claims.
Del Taco has several defenses to the action that it believes could
prevent the certification of the class, as well as the potential
assessment of any damages on a class basis.
Del Taco said, "Legal proceedings are inherently unpredictable, and
the Company is not able to predict the ultimate outcome or cost of
the unresolved matter. However, based on management's current
understanding of the relevant facts and circumstances, the Company
does not believe that these proceedings give rise to a probable or
estimable loss and should not have a material adverse effect on the
Company's financial position, operations or cash flows. Therefore,
Del Taco has not recorded any amount for the claim as of June 15,
2021."
Del Taco Restaurants, Inc. operates a chain of fast-food
restaurants. The company consists of two separate Mexican fast-food
groups, 79 Del Taco units and 36 Taco Villa restaurants. The
company offers Mexican food items, such as tacos, burritos,
quesadillas, burgers, French fries, and soft drinks. The company
was incorporated in 1983 and is based in Atlanta, Georgia. Del Taco
Restaurants operates as a subsidiary of W.R. Grace & Co.
DISCOVER BANK: Bid to Strike Class Claims in Golden Suit Denied
---------------------------------------------------------------
In the case, In re Tashanna B Golden, Chapter 7, fka Tashanna B
Pearson, Debtor. Tashanna B Golden, fka Tashanna B Pearson, on
behalf of herself and all others similarly situated Plaintiff, v.
Discover Bank, Defendant, Case No. 16-40809-ess, Adv. Pro. No.
20-01051-ess (E.D.N.Y.), Judge Elizabeth S. Stong of the U.S.
Bankruptcy Court for the Eastern District of New York denied
Discover's Motion to Strike Class Allegations.
The matter before the Court is a motion by Defendant Discover to
strike class allegations, with prejudice, from the Complaint filed
on May 12, 2020 pursuant to Federal Rules of Civil Procedure
12(b)(1), 12(b)(6), and 12(f), as incorporated by Federal Rules of
Bankruptcy Procedure 7012 and 7023.
Discover argues that the Court lacks the jurisdiction to adjudicate
discharge violation claims arising from discharge orders issued
outside this District. It argues that subject matter jurisdiction
alone does not enable one bankruptcy court to enforce another's
discharge order. Discover asserts that both the Supreme Court and
the Second Circuit have made clear that a court retains
jurisdiction over its own prior orders, and that this retention
enables the court to interpret and enforce those orders. And it
argues that asking the Court to interpret and enforce discharge
orders entered by other bankruptcy courts is an attempt to divest
those courts of jurisdiction and to deprive them of their right to
enforce their own orders.
Ms. Golden disagrees. She responds first that this Court plainly
has subject matter jurisdiction to proceed here. She points to
Judiciary Code Section 1334, which is the source of the Court's --
and every bankruptcy court's -- subject matter jurisdiction "to
adjudicate claims arising under or related to the Bankruptcy Code,"
and Bankruptcy Rule 7023, which permits "this Court, like all
bankruptcy courts, to entertain class actions." Next, she argues
that the Supreme Court mandates that courts exercise their subject
matter jurisdiction. She also disputes that only the issuing court
can adjudicate a discharge injunction violation claim, and
questions how, if that is so, one judge within a district could
hear even a district-wide class claim. And finally, Ms. Golden
disagrees with Discover's interpretation of recent Second Circuit
and Supreme Court decisions and argues that those cases either
support her position here or do not address it.
Ms. Golden commenced the adversary proceeding as a putative class
action, on behalf of herself and others similarly situated, by
filing a complaint against Discover seeking a determination that
certain debts that she incurred as a student are not
nondischargeable student loan debts under Bankruptcy Code Section
523(a)(8)(B), and a finding of civil contempt against Discover for
willful violations of the bankruptcy discharge injunction. Ms.
Golden alleges that Discover and other creditors represented to her
and to similarly situated student debtors that the Bankruptcy Code
prohibited discharge of "any loan made to any person for any
educational purpose," when they knew that "only private loans that
meet the requirements of section 523(a)(8)(B) are
nondischargeable."
Ms. Golden seeks to maintain the action on behalf of herself and as
a representative of a nationwide class consisting of individuals
who, like her, "received private loans owned or serviced by
Discover which exceeded the cost of attendance at such institutions
as defined in 26 U.S.C. Section 221(d); who obtained bankruptcy
discharges after Jan. 1, 2005; who were subsequently subjected to
Discover's acts to collect on the loans; and who have not
reaffirmed their loans."
Discover's Motion to Strike calls for the Court to consider whether
the issues that it identifies are distinct from the issues to be
addressed in the context of class certification -- that is, whether
"the motion 'addresses issues separate and apart from issues that
will be decided on a class certification motion.'" If the questions
presented are, in substance, the same as the questions to be
addressed on a motion for class certification, then they should be
deferred until that matter is before the Court, and addressed in
that context.
Discover's Motion to Strike also calls for the Court to consider
whether it lacks jurisdiction, including subject matter
jurisdiction and the jurisdiction to enter a remedy, to consider
Ms. Golden's allegations that seek the certification of a
nationwide class. Although Discover does not dispute that the Court
has subject matter jurisdiction to decide this question, it argues
that the Court's jurisdiction is limited on "threshold, non-merits"
grounds, which prevent the Court from adjudicating an asserted
violation of another court's order. Subject matter jurisdiction --
and all matters related to jurisdiction -- is foundational, and
serves as the starting point for everything that a federal court
can do. When that question is raised, even inferentially, it must
be addressed, and promptly. Where it is lacking, the court cannot
proceed.
Finally, if jurisdiction, including subject matter jurisdiction and
the jurisdiction to enter a remedy, is present, and the issues
identified are distinct from the questions to be addressed in a
motion to certify a class, then the Court must consider whether, at
this stage in these proceedings, it is clear that this Court cannot
exercise its jurisdiction to entertain this action as a nationwide
class and enter a remedy of any type, no matter the definition of
the class, the nature of the certification that is sought, or the
evidence.
Discussion
A. Whether Discover's Motion To Strike the Class Allegations Is
Premature
The first question to be addressed on thieMotion to Strike is
whether it is time to consider this matter at all -- that is, is
Discover's Motion to Strike premature? Should these issues be
decided now, or should they be deferred to the consideration of a
motion to certify a class?
Judge Stong concludes that the issues presented by the Motion to
Strike are "separate and apart from issues that will be decided on
a class certification motion." She also concludes that the issues
raise questions of law. And she notes that Rule 23 states that the
question of certification should be addressed at "an early
practicable time after a person sues or is sued as a class
representative." For these reasons, and based on the entire record,
the Judge concludes that Discover's Motion to Strike is not
premature, and may be considered at this time.
B. Whether Discover Has Shown that Ms. Golden's Class Allegations
Should Be Stricken with Prejudice
The next question to be addressed on the Motion to Strike is
whether Discover has shown that a nationwide class cannot be
certified by this Court as a matter of law -- that is, that it
would be "impossible to certify the alleged class" because, in
substance, the Court lacks the jurisdiction to direct any relief
for a class member that received a discharge outside of the
District.
Discover argues that a court's subject matter jurisdiction can be
constitutionally limited on "'threshold, non-merits' grounds, such
as the inability to enforce another court's order." And it argues
that the distinction between a judge-crafted order and the
statutory nature of the discharge injunction does not affect this
limitation on the Court's jurisdiction.
Judge Stong disagrees, for several reasons. Among other things, she
says the claims "arise under" the Bankruptcy Code, are separate and
distinct from any in rem basis for the bankruptcy court's
jurisdiction, and go to the heart of one of the fundamental
protections of the bankruptcy system -- that is, the debtor's
discharge and opportunity for a fresh start. Also, some courts have
concluded that a bankruptcy court cannot entertain a nationwide
class action to address an alleged discharge injunction violation
on jurisdictional grounds, based on Judiciary Code Section 1334(e)
and the limitations of a court's in rem jurisdiction.
Conclusion
Based on the entire record and for the reasons stated, Judge Stong
finds that Discover has not shown that Ms. Golden's allegations
that she seeks to be certified as the representative of a putative
nationwide class designation should be stricken from the Complaint.
The question of whether a nationwide class, or any class, should be
certified in this action, for some or all of the relief that is
sought, is reserved for another day, to be considered upon the
making of a motion to certify a class by Ms. Golden. For these
reasons, Discover's Motion To Strike Class Allegations is denied.
An order in accordance with the Memorandum Decision will be entered
simultaneously therewith.
A full-text copy of the Court's July 20, 2021 Memorandum Decision
is available at https://tinyurl.com/5ay6ru4r from Leagle.com.
George F. Carpinello, Esq. -- gcarpinello@bsfllp.com -- Adam Shaw,
Esq. -- ashaw@bsfllp.com -- Jenna Smith, Esq. --
austin@acsmithlawgroup.com -- Boies Schiller Flexner LLP, in
Albany, New York, Attorneys for Plaintiff, Tashanna B. Golden, fka
Tashanna B. Pearson, on behalf of herself and all others similarly
situated.
Jason W. Burge, Esq. -- jburge@fishmanhaygood.com -- Kathryn J.
Johnson, Esq. -- kjohnson@fishmanhaygood.com -- Fishman Haygood,
LLP, in New Orleans, Louisiana, Attorneys for Plaintiff.
Clay Jackson Pierce, Esq. -- clay.pierce@dbr.com -- Erin L.
Hoffman, Esq. -- erin.hoffman@faegrebd.com -- Kyle Hosmer, Esq.,
Brian P. Morgan, Esq. -- brian.morgan@faegredrinker.com -- Faegre
Drinker Biddle & Reath LLP, in New York City, Attorneys for
Defendant, Discover Bank Tashanna B. Golden, fka Tashanna B.
Pearson, on behalf of herself and all others similarly situated.
Joshua B. Kons, Esq., Canton, CT, Attorneys for Plaintiff, Tashanna
B. Golden, fka Tashanna B. Pearson, on behalf of herself and all
others similarly situated.
Lynn E. Swanson, Esq. -- lswanson@jonesswanson.com -- Jones,
Swanson, Huddell & Garrison, LLC, in New Orleans, Louisiana,
Attorneys for Plaintiff, Tashanna B. Golden, fka Tashanna B.
Pearson, on behalf of herself and all others similarly situated.
DOCTOR'S BEST: Initial Approval of Class Settlement in Casey Sought
-------------------------------------------------------------------
In the class action lawsuit captioned as SHARAE CASEY, Individually
and on Behalf of All Others Similarly Situated, v. DOCTOR'S BEST,
INC., Case No. 8:20-cv-01325-JLS-JDE (C.D. Cal.), the Lead
Plaintiff asks the Court to enter an order:
1. granting the proposed Preliminary Approval Order; and
2. scheduling the Final Approval hearing to determine whether
the Settlement, and Plaintiff's Counsel's application for
attorneys' fees and expenses, and an Incentive Award
warrant final approval.
Doctor's Best manufactures and distributes dietary and nutritional
supplements. The Company offers supplements for anti-aging and
antioxidant.
A copy of the Plaintiff's motion dated July 23, 2021 is available
from PacerMonitor.com at https://bit.ly/3iePsMM at no extra
charge.[CC]
The Plaintiff is represented by:
Jonathan M. Rotter, Esq.
Danielle L. Manning, Esq.
GLANCY PRONGAY & MURRAY LLP
1925 Century Park East, Suite 2100
Los Angeles, CA 90067
Telephone: (310) 201-9150
Facsimile: (310) 432-1495
E-mail: info@glancylaw.com
- and -
Carl L. Stine, Esq.
Matthew Insley-Pruitt, Esq.
Philip M. Black, Esq.
WOLF POPPER LLP
845 Third Avenue
New York, NY 10022
Telephone: (212) 759-4600
Facsimile: (212) 486-2093
E-mail: cstine@wolfpopper.com
DOT TRANSPORTATION: Watson Labor Suit Removed to E.D. California
----------------------------------------------------------------
The case styled JOSHUA WATSON, individually and on behalf of all
others similarly situated v. DOT TRANSPORTATION, INC.; DOT FOODS,
INC.; and DOES 1 through 50, inclusive, Case No. 34-2021-00302568,
was removed from the Superior Court of the State of California,
County of Sacramento, to the U.S. District Court for the Eastern
District of California on July 23, 2021.
The Clerk of Court for the Eastern District of California assigned
Case No. 2:21-at-00668 to the proceeding.
The case arises from the Defendants' alleged violations of the
California Labor Code and the California Business and Professions
Code including failure to pay wages and compensation, failure to
provide meal breaks, denial of lawful rest breaks, failure to
reimburse for work related expenses, failure to provide accurate
wage statements, failure to pay all wages upon separation from
employment, and unfair business practices.
DOT Transportation, Inc. is a provider of trucking transportation
services based in Illinois.
DOT Foods, Inc. is a foodservice redistribution company
headquartered in Illinois. [BN]
The Defendants are represented by:
Tyler M. Paetkau, Esq.
Olga Savage, Esq.
Nicholas Kawuka, Esq.
PROCOPIO, CORY, HARGREAVES & SAVITCH LLP
1117 S. California Ave., Suite 200
Palo Alto, CA 94304
Telephone: (650) 645-9000
Facsimile: (619) 235-0398
E-mail: tyler.paetkau@procopio.com
olga.savage@procopio.com
nicholas.kawuka@procopio.com
E. A. RENFROE: Fails to Properly Pay Adjusters, Bobbs Suit Claims
-----------------------------------------------------------------
PATRICIA BOBBS, on behalf of herself and all others similarly
situated, Plaintiff v. E. A. RENFROE & COMPANY, INC., Defendant,
Case No. 3:21-cv-01326-JLS-AGS (S.D. Cal., July 23, 2021) is a
class action against the Defendants for violations of the Fair
Labor Standards Act, the California Unfair Competition Law, and the
California Labor Code including failure to pay overtime, failure to
reimburse business expenses, failure to provide accurate wage
statements, failure to provide meal and rest breaks or provide
compensation in lieu thereof, and failure to pay all wages due
immediately upon discharge and within the time required by law
after end of employment.
Ms. Bobbs worked as an adjuster employee for the Defendant from
April 2020 through approximately July 2020.
E.A. Renfroe & Company, Inc. is a service staffing and project
management company, headquartered in Alabama. [BN]
The Plaintiff is represented by:
Ricardo J. Prieto, Esq.
SHELLIST | LAZARZ | SLOBIN LLP
11 Greenway Plaza, Suite 1515
Houston, TX 77046
Telephone: (713) 621-2277
Facsimile: (713) 621-0993
E-mail: rprieto@eeoc.net
- and –
Melinda Arbuckle, Esq.
SHELLIST | LAZARZ | SLOBIN LLP
402 West Broadway, Suite 400
San Diego, CA 92101
Telephone: (713) 621-2277
Facsimile: (713) 621-0993
E-mail: marbuckle@eeoc.net
EAN SERVICES: Court Dismisses Swiggum FSCA Suit Without Prejudice
-----------------------------------------------------------------
In the case, KATHRYN SWIGGUM, individually and on behalf of all
others similarly situated, Plaintiff v. EAN SERVICES, LLC,
Defendant, Case No. 8:21-cv-493-TPB-CPT (M.D. Fla.), Judge Tom
Barber of the U.S. District Court for the Middle District of
Florida, Tampa Division, granted the Defendant's Motion to Dismiss
First Amended Complaint with Incorporated Memorandum of Law, filed
on April 13, 2021.
Defendant EAN Services operates a website at www.enterprise.com.
According to Plaintiff Swiggum, the Defendant violated the Florida
Security of Communications Act ("FSCA") based on its use of session
replay software to record the "Plaintiff's mouse clicks and
movements, keystrokes, search terms, information inputted by the
Plaintiff, and pages and content viewed by the Plaintiff" when she
visited the website.
On Feb. 8, 2021, the Plaintiff filed a putative class action
lawsuit in state court, which the Defendant removed to the Court on
March 2, 2021, pursuant to the Class Action Fairness Act. The
Plaintiff later filed a one-count amended complaint, alleging that
she and class members are entitled to injunctive relief, damages,
reasonable attorney's fees, litigation costs, and other legal
remedies.
The Defendant has moved to dismiss the complaint, arguing that the
Plaintiff has failed to and cannot state a claim for relief.
Specifically, it argues that the Plaintiff has failed to plead
factual allegations showing that the content of her communications
was intercepted, and she does not sufficiently allege she incurred
any harm.
Judge Barber holds that the case involves a "somewhat novel, unique
application of Florida law." As such, he has carefully reviewed
and considered the cases provided by the parties and concludes that
the FSCA does not apply to the Plaintiff's claims regarding session
replay software on a commercial website. He adopts the analysis
and reasoning presented in these cases. As such, the motion to
dismiss is due to be granted.
Because the Judge has concluded that the FSCA does not apply to the
Plaintiff's session replay technology claims, it appears that
amendment is futile. However, in an abundance of caution, the
Judge grants leave for the Plaintiff to file an amended complaint,
if she may do so in good faith.
Accordingly, the Defendant's Motion to Dismiss First Amended
Complaint with Incorporated Memorandum of Law is granted. The
amended complaint is dismissed without prejudice, with leave to
amend. The Plaintiff's amended complaint was due on Aug. 2, 2021.
Failure to file an amended complaint as directed will result in the
Order becoming a final judgment.
A full-text copy of the Court's July 16, 2021 Order is available at
https://tinyurl.com/ye3e538y from Leagle.com.
ECO SHIELD: Final Judgment Entered in Quatinetz Class Suit
----------------------------------------------------------
Judge Cathy Seibel of the U.S. District Court for the Southern
District of New York enters Final Judgment in the case, Paul
Quatinetz, individually and on behalf of a class Plaintiff v. Eco
Shield Pest Control New York City, LLC; and Optio Solutions LLC
Defendants, Civil Action No. 7:19-cv-08576-CS (S.D.N.Y.).
On Sept. 16, 2019, Plaintiff or Class Representative Paul Quatinetz
filed a class action complaint against Eco Shield and Optio, in the
U.S. District Court for the Southern District of New York, Civil
Action No: 7:19-cv-08576-CS, asserting class action claims under
the Fair Debt Collection Practices Act ("FDCPA") and Section 349 of
the New York General Business Laws.
The Defendants have denied any and all liability alleged in the
Lawsuit.
On Feb. 19, 2021, after extensive arms-length negotiations, the
Plaintiff and the Defendants finalized and fully entered into a
written Class Action Settlement Agreement, which is subject to
review under Fed. R. Civ. P. 23. The Plaintiff also filed the
Settlement Agreement, along with his Unopposed Motion for
Preliminary Approval of Class Action Settlement.
In compliance with the Class Action Fairness Act of 2005, 28 U.S.C.
Sections 4332(D), 1453, and 1711-1715, the Defendants, served
written notice of the proposed class settlement as directed.
On March 24, 2021, upon consideration of the Plaintiff's
Preliminary Approval Motion and the record, the Court entered an
Order of Preliminary Approval of Class Action Settlement. Pursuant
to the Preliminary Approval Order, the Court, among other things,
(i) preliminary approved the proposed settlement, (ii) certified
the Lawsuit as a class action, (iii) appointed Ryan Gentile, Esq.
and Shimshon Wexler, Esq. as the class counsel and Paul Quatinetz
as the Class Representative, and (iv) set the date and time of the
Final Approval Hearing.
On June 16, 2021, the Plaintiff filed a Motion for Final Approval
of Class Action Settlement. On the same day at 3:30 p.m., a Final
Approval Hearing.
The Parties now request final certification of the settlement class
under Fed. R. Civ. P. 23 (b)(3) and final approval of the
Settlement Agreement.
Judge Seibel has read and considered the Settlement Agreement,
Motion for Final Approval, and the record of these proceedings.
The Court previously certified the Lawsuit as a class action
pursuant to Rule 23(b)(3) of the Federal Rules of Civil Procedure.
The Class is defined as: (a) all individuals (b) with a New York
address (c) from whom Defendants attempted to collect and/or
asserted a right to collect, a collection fee in addition to any
amount Eco Shield claimed such individual owed them (d) from Sept.
16, 2016 through Sept. 16, 2019. The Defendants have identified a
total of 472 Class Members.
On March 24, 2021, pursuant to Fed. R. Civ. P. 23, the Court
certified Paul Quatinetz as the Class Representative and Ryan
Gentile, Esq. and Shimshon Wexler, Esq. as the Class Counsel and
Judge Seibel reaffirms the Court's prior certifications.
The Judge finally approved the Settlement Agreement and will be
consummated in accordance with the terms and provisions thereof,
except as amended by any order issued by the Court. The material
terms of the Settlement Agreement include, but are not limited to,
the following:
1. Settlement Fund - The Defendants will establish a
settlement fund of $46.95 per class member for a total of
$22,159.70.
2. Settlement Payment to Class Members - Each Class Member
who has not excluded themselves from the Class with a postmark date
no later than June 7, 2021 will receive a $46.95 check from the
Settlement Fund. Each settlement check will be void 90 days after
mailing. To the extent that any funds remain in the Settlement
Fund after the void date (from uncashed checks or otherwise), these
funds will be returned to the Defendants.
3. Class Representative Settlement Amount - The Class
Representative will receive from Defendants the sum of $1,000
pursuant to U.S.C. Section 1692k(a)(2)(B)(i) and $500 as an
incentive award for their work on behalf of the Class Members for a
total amount of $1,500. These payments will be separate and apart
from the Settlement. Fund and the Plaintiff's pro-rata share of
the same.
4. Attorneys' Fees, Expenses, and Costs of Class Counsel -
Subject to the Court's approval, the Defendants will pay the Class
Counsel the total sum of $40,000 for its reasonable attorneys'
fees, costs and expenses, separate and apart from the Settlement
Fund, the Class Representative Settlement Amount, and any
Settlement Administration Costs. The $40,000 will be paid as
follows, $20,000 in a check made payable to Law Offices of Shimshon
Wexler, Attorney Trust Account and $20,000 in cheek payable to Law
Offices of Gus Michael Farinella, PC, Attorney Trust account; and
5. Settlement Notice and Administration - Separate from the
Settlement Fund, the Class Representative Settlement Amount, and
the Attorneys' Fees, Defendants are responsible for paying all
costs of notice and administration of the settlement, which will be
completed by Phoenix Class Action Administration Solutions.
The Lawsuit is dismissed with prejudice in all respects. The Order
is not, and will not be construed as, an admission by the
Defendants of any liability or wrongdoing in this or in any other
proceeding. The Court retains continuing and exclusive
jurisdiction over the Parties and all matters relating to the
Lawsuit and/or Settlement Agreement, including the administration,
interpretation, construction, effectuation, enforcement, and
consummation of the settlement and the Order, and the approval of
any attorneys' fees, costs, and expenses to the Class Counsel.
A full-text copy of the Court's July 16, 2021 Final Judgment is
available at https://tinyurl.com/yhsyvxtr from Leagle.com.
ENPHASE ENERGY: Bid to Dismiss Hurst Securities Class Suit Pending
------------------------------------------------------------------
Enphase Energy, Inc. said in its Form 10-Q Report filed with the
Securities and Exchange Commission on July 27, 2021, for the
quarterly period ended June 30, 2021, that the company's motion to
dismiss the securities class action suit initiated by Gregory A.
Hurst, is pending.
On or about June 17, 2020, Gregory A. Hurst filed a securities
class action lawsuit against the company, its chief executive
officer and its chief financial officer in the United States
District Court for the Northern District of California on behalf of
a class consisting of those individuals who purchased or otherwise
acquired the company's common stock between February 26, 2019 and
June 17, 2020 (the "Hurst Action").
The complaint alleges that the Defendants made false and/or
misleading statements in violation of Sections 10(b) and 20(a) of
the Exchange Act of 1934 and Rule 10b-5 promulgated thereunder.
Plaintiff does not quantify any alleged damages in his complaint
but, in addition to attorneys' fees and costs, he seeks to recover
damages on behalf of himself and other persons who purchased or
otherwise acquired our stock during the putative class period at
allegedly inflated prices and purportedly suffered financial harm
as a result.
The court appointed Plaintiff as the Lead Plaintiff on November 30,
2020. On December 7, 2020, the court granted the parties'
stipulation setting the schedule for the filing of an amended
complaint and Defendants' anticipated motion to dismiss.
On January 22, 2021, Plaintiff filed an amended complaint against
Defendants asserting substantially the same allegations as the
original complaint purportedly on behalf of individuals who
purchased or otherwise acquired Enphase common stock between
February 26, 2019 and June 16, 2020.
On February 19, 2021, the company filed a motion to dismiss
Plaintiff's amended complaint for failure to state a claim. A
hearing on that motion is scheduled for July 29, 2021.
Enphase said, "We dispute all allegations, intend to defend the
matter vigorously and believe the claims are without merit."
Enphase Energy, Inc. is a global energy technology company. The
company delivers smart, easy-to-use solutions that manage solar
generation, storage and communication on one intelligent platform.
The company revolutionized the solar industry with their
microinverter technology and it produces a fully integrated
solar-plus-storage solution. The company is based in Fremont,
California.
FEDCAP REHABILITATION: Seeks to Stay Class Cert. Briefing
---------------------------------------------------------
In the class action lawsuit captioned as King v. Fedcap
Rehabilitation Services, Inc., et al., Case No. 1:20-cv-01784-VSB
(S.D.N.Y.), the Defendants ask the Court to enter an order staying
briefing of Plaintiff's Motion for Conditional Collective
Certification pending a decision on the Defendants' forthcoming
Motion to Enforce Settlement.
On July 22, 2021, the Plaintiff filed his Motion for Conditional
Collective Certification. This surprised Defendants. At no point
prior to July 22 did Plaintiff reveal an intention to file a motion
for conditional certification before the settlement issue was fully
resolved. The Plaintiff did not seek to confer with Defendants
about the timing of such a motion. Instead, a few days before
Defendants' Motion to Enforce Settlement was due to be filed, the
Plaintiff filed his Motion for Conditional Collective
Certification.
Fedcap is a Manhattan-based not-for-profit organization that
provides vocational training and employment resources to those who
face barriers to employment such as people with all kinds of
disabilities and employment-related barriers.
A copy of the the Defendant's motion dated July 23, 2021 is
available from PacerMonitor.com at https://bit.ly/2V9Idgu at no
extra charge.[CC]
The Plaintiff is represented by:
Jeffrey H. Ruzal, Esq.
EPSTEIN BECKER & GREEN, P.C.
Telephone: (212) 351-4500
Facsimile: (212) 878-8600
E-mail: jruzal@ebglaw.com
FIRST AMERICAN FINANCIAL: Continues to Defend Putative Class Suits
------------------------------------------------------------------
First American Financial Corporation said in its Form 10-Q Report
filed with the Securities and Exchange Commission on July 23, 2021,
for the quarterly period ended June 30, 2021, that the company
continues to defend itself against a number of non-ordinary course
lawsuits, most of which are putative class actions.
Most of the non-ordinary course lawsuits to which the Company and
its subsidiaries are parties challenge practices in the Company's
title insurance business, though a limited number of cases also
pertain to the Company's other businesses.
These lawsuits include, among others, cases alleging, among other
assertions, that the Company or one of its subsidiaries improperly
charged fees for products and services, improperly performed debt
collection practices, and improperly handled property and casualty
claims in violation of certain laws, such as consumer protection
laws and laws generally prohibiting unfair business practices, and
certain obligations, including:
- Seymour vs. First American Title Insurance Company, et al., filed
on January 12, 2021 and pending in the Superior Court of the State
of California, County of Santa Barbara,
- Tenefufu vs. First American Specialty Insurance Company, filed on
June 1, 2017 and pending in the Superior Court of the State of
California, County of Sacramento, and
- Wilmot vs. First American Financial Corporation, et al., filed on
April 20, 2007 and pending in the Superior Court of the State of
California, County of Los Angeles.
Seymour and Tenefufu are putative class actions for which a class
has not been certified. A class has been certified in Wilmot. For
the reasons described above, the Company has not yet been able to
assess the probability of loss or estimate the possible loss or the
range of loss.
The Company and/or its subsidiaries are also parties to consumer
class actions and a securities class action in connection with the
information security incident that occurred during the second
quarter of 2019. All of these lawsuits are putative class actions
for which a class has not been certified. For the reasons
described above, the Company has not yet been able to assess the
probability of loss or estimate the possible loss or the range of
loss.
First American Financial Corporation, through its subsidiaries,
provides financial services. It operates through Title Insurance
and Services, and Specialty Insurance segments. First American
Financial Corporation was incorporated in 2008 and is based in
Santa Ana, California.
FRESNO STATE: Anders Suit Stayed Pending Ruling on Bid to Dismiss
-----------------------------------------------------------------
In the case, TAYLOR ANDERS, et al., Plaintiffs v. CALIFORNIA STATE
UNIVERSITY, FRESNO, et al., Defendants, Case No.
1:21-cv-00179-AWI-BAM (E.D. Cal.), Magistrate Judge Barbara A.
McAuliffe of the U.S. District Court for the Eastern District of
California granted the Defendants' motion for protective order and
to stay discovery pending the Court's ruling on its motion to
dismiss the Plaintiffs' First Amended Complaint with prejudice.
On Feb. 12, 2021, five current members of California State
University, Fresno's (Fresno State's) women's lacrosse team
("Plaintiffs") filed the putative class action against California
State University, Fresno, and certain of its officials, alleging
that they discriminated against female student-athletes and
potential student-athletes in violation Title IX of the Education
Amendments of 1972 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; failing to provide female athletes
with benefits comparable to those provided to male athletes;
announcing the varsity women's lacrosse team would be eliminated at
the end of the 2020-21 academic year; and treating the women's
lacrosse team far worse than other varsity intercollegiate athletic
teams since they made that announcement.
The Plaintiffs also filed a 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 this litigation. On April 19, 2021, the Defendants
moved to dismiss the Plaintiffs' complaint.
On April 21, 2021, the Court granted the Plaintiffs' motion for
preliminary injunction as to their equal treatment claim under 34
C.F.R. Section 106.41(c)(2)-(10) and denied without prejudice the
Plaintiffs' motion for preliminary injunction as to their effective
accommodation claim under 34 C.F.R. Section 106.41(c)(1). The
Court ordered that "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 Plaintiffs
have moved for reconsideration of the Court's order partially
denying their motion for preliminary injunction.
On May 3, 2021, following the Court's ruling, the Plaintiffs filed
a First Amended Complaint, which rendered the Defendants' motion to
dismiss the original complaint moot. The Defendants have now moved
to dismiss the Plaintiffs' First Amended Complaint with prejudice.
The Plaintiffs' motion for reconsideration and the Defendants'
motion to dismiss are currently under submission with the District
Court.
On July 16, 2021, the Defendant filed the instant motion requesting
that the Court issues a protective order and stays discovery until
its ruling on the Defendants' motion to dismiss the amended
complaint.
Pursuant to Local Rule 251, the parties filed a Joint Statement Re:
Defendant's Motion for Protective Order and to Stay Discovery. In
the Joint Statement, the Defendant generally argues that a stay of
discovery is necessary pending a ruling on its dispositive motion
and a protective order is necessary considering the overbroad and
burdensome nature of the Plaintiffs' discovery demands. It further
contends that a stay will avoid the expense and burden of
responding to the Plaintiffs' discovery requests prior to a ruling
on the motion to dismiss. However, if discovery is permitted to
commence, the Defendant argues that a protective order is necessary
because the Plaintiffs' discovery requests, which were served on
May 17, 2021, are overbroad, unnecessarily burdensome, outside the
relevant statute of limitations period and seek irrelevant
discovery not proportional to the needs of this case.
The Plaintiffs counter with several arguments in opposition to the
proposed stay of discovery and the issuance of a protective order.
First, they argue that discovery commenced in the action following
the parties' discovery conference pursuant to Federal Rule of Civil
Procedure 26(f) on April 20, 2021, and that the Defendants have
never attempted to confer with the Plaintiffs regarding the
content, breadth or onerousness of the discovery requests. Second,
the Plaintiffs contend that the pending motion to dismiss does not
justify a stay of discovery based solely on the Defendant's
conclusory statements about the likelihood of success on their
motion to dismiss. Third, they argue that the discovery requests
are not overbroad, as historical information beyond the two-year
statute of limitations period is highly relevant to show
intentional discrimination and to establish reasonable inferences
about the school's current and future conduct.
Discussion
Judge McAuliffe holds that a stay is warranted under the two-part
test. As to the first part, the Defendant asserts that the motion
to dismiss seeks dismissal of the Plaintiffs' amended complaint in
its entirety on the grounds that (1) the Plaintiffs lack standing
due to lack of injury, and (2) the Plaintiffs have not, and cannot,
plead facts sufficient to state a claim. The Plaintiffs' First
Amended Complaint includes three separate counts: (1) Unequal
Allocation of Athletic Participation Opportunities in violation of
Title IX; (2) Unequal Allocation of Athletic Financial Assistance
in violation of Title IX; and (3) Unequal Allocation of Athletic
Treatment and Benefits in violation of Title IX.
The Defendants' motion to dismiss challenges all three counts,
arguing that the Plaintiffs do not plausibly plead claims for
unequal allocation of participation opportunities, unequal
financial assistance or unequal allocation of athletic treatment
and benefits. The Defendants also contend in their motion that the
Plaintiffs lack standing to pursue claims for unequal financial
assistance and that their claims are barred to the extent they
allege historical violations of Title XI beyond the two-year
statute of limitations period.
Having considered the motion to dismiss, if the district court were
to find that the Plaintiffs failed to plead plausible claims and
lacked standing to pursue claims for unequal financial assistance,
then the Defendants' motion would dispose of the Plaintiffs' entire
case. Judge McAuliffe therefore finds that the motion to dismiss
is potentially dispositive of the entire case, satisfying the first
part of the two-part test for a discovery stay.
As to the second part of the test, Judge McAuliffe says it does not
appear that any discovery is necessary to resolve the pending
motion to dismiss. The motion to dismiss is fully briefed and has
been taken under submission by the district court. Moreover, the
Plaintiffs' opposition to the motion to dismiss makes no assertion
that any discovery is necessary to withstand the Defendants' motion
to dismiss. Instead, the Plaintiffs aver in their opposition to
the motion to dismiss that they "do not have to put forth any
evidence to survive a motion to dismiss" and there "is no evidence
at issue, just allegations." Given that no discovery appears to be
required for the district court to rule on the motion to dismiss,
the second part of the two-part test for a discovery stay is
satisfied.
In addition to satisfying the two-part test warranting a discovery
stay, Judge McAuliffe finds persuasive the Defendant's arguments
concerning the overbroad and burdensome nature of the Plaintiffs'
pending discovery requests.
Conclusion
For the reasons stated, Judge McAuliffe ordered as follows: (1) the
Defendant's motion for a protective order and to stay discovery is
granted; (2) discovery in the case is stayed pending an order
resolving the Defendants' motion to dismiss; and (3) the Court will
set a status conference, if necessary and appropriate, as soon as
practicable following resolution of the Defendants' motion to
dismiss.
A full-text copy of the Court's July 16, 2021 Order is available at
https://tinyurl.com/8kmduxu7 from Leagle.com.
HARTFORD FIRE: Denies Coverage Due to COVID-19 Losses, Suit Says
----------------------------------------------------------------
SOUTHERN CLIPPER, INC., on behalf of itself and all others
similarly situated v. HARTFORD FIRE INSURANCE COMPANY and THE
HARTFORD FINANCIAL SERVICES GROUP, INC., DBA THE HARTFORD, Case No.
2:21-cv-02153-BHH (D.S.C., July 16, 2021) is a class action
complaint for breach of contract, breach of the covenant of good
faith and fair dealing, and declaratory and injunctive relief
against the Defendants.
The COVID-19 pandemic is the epitome of the unexpected catastrophic
event. As a result of this pandemic, beginning in mid-March, local
governments in the Charleston area began imposing restrictions that
made it impossible for hair salons and other non-essential
businesses to stay open, and on March 31, 2020 the State of South
Carolina ordered hair salons and other non-essential businesses to
shut down.
However, despite the provision of business income coverage in its
policies, the Defendants are refusing to comply with their
obligation to pay for business income losses and covered expenses
incurred by policyholders as a result of the physical loss of their
insured property arising from the COVID-19 pandemic, says the
suit.
The Defendants seek to justify their decision to unilaterally and
preemptively deny coverage owed to their insureds on grounds that
are patently specious. They state that there is no coverage because
a virus cannot cause physical loss or damage to property as
required by the policies.
The Plaintiff owns and operates Great Clips franchised hair salons
in the Charleston, South Carolina area. To make sure that it would
be protected if it was forced to temporarily cease some or all of
its operations by unanticipated events beyond its control, it
purchased a commercial insurance policy from Defendants covering
the period of January 16, 2020-January 16, 2021.
Such an event, the worst health crisis to hit the State of South
Carolina, the United States, and indeed the world in over a
century, arrived in early 2020 in the form of a pandemic of a
disease called COVID-19, causing a massive number of illnesses and
numerous deaths.
Like Plaintiff, many hair salons and other businesses that operate
services that are considered non-essential have purchased insurance
from The Hartford to protect against losses from catastrophic
events like the current unforeseen COVID-19 pandemic. These
policies promise to indemnify the policyholder for actual business
losses incurred when business operations are involuntarily
suspended, interrupted, or curtailed because of direct physical
loss of or damage to the property. This coverage is commonly known
as "business interruption" or "business income" coverage.[BN]
The Plaintiff is represented by:
Graham L. Newman, Esq.
Mark D. Chappell, Esq.
Maggie R. Chappell, Esq.
CHAPPELL, SMITH & ARDEN, P.A.
2801 Devine Street, Suite 300
Columbia, SC 29205
Telephone: (803) 929-3600
Facsimile: (803) 929-3604
E-mail: mchappell@csa-law.com
gnewman@csa-law.com
mrchappell@csa-law.com
- and -
Richard S. Cornfeld, Esq.
Daniel S. Levy, Esq.
1010 Market Street, Suite 1645
St. Louis, MO 63101
Telephone: (314) 241-5799
Facsimile: (314) 241-5788
E-mail: rcornfeld@cornfeldlegal.com
dlevy@cornfeldlegal.com
- and -
Anthony S. Bruning, Esq.
Anthony S. Bruning, Jr., Esq.
Ryan L. Bruning, Esq.
THE BRUNING LAW FIRM, LLC
555 Washington Avenue, Suite 600
St. Louis, MO 63101
Telephone: (314) 735-8100
Facsimile: (314) 898-3078
E-mail: tony@bruninglegal.com
aj@bruninglegal.com
ryan@bruninglegal.com
- and -
Mike Arias, Esq.
Robert M. Partain, Esq.
Christopher Swift, Esq.
ARIAS SANGUINETTI WANG & TORRIJOS,
LLP
6701 Center Drive West, 14th Floor
Los Angeles, CA 90045
Telephone: (310) 844-9696
Facsimile: (310) 861-0168
E-mail: mike@aswtlawyers.com
robert@aswtlawyers.com
christopher@aswtlawyers.com
HEALTHCARE SERVICES: Settlement in PA Class Suit Awaits Initial OK
------------------------------------------------------------------
Healthcare Services Group, Inc. said in its Form 10-Q Report filed
with the Securities and Exchange Commission on July 23, 2021, for
the quarterly period ended June 30, 2021, that the parties in the
putative shareholder class action suit filed in the U.S. District
Court for the Eastern District of Pennsylvania, have entered into a
stipulation of settlement, which they have submitted to the Court
for preliminary approval.
On March 22, 2019, a putative shareholder class action lawsuit was
filed against the Company and its Chief Executive Officer in the
U.S. District Court for the Eastern District of Pennsylvania,
seeking unspecified monetary damages and other relief on behalf of
the plaintiff class. The initial complaint, which was filed by a
plaintiff purportedly on behalf of all purchasers of the Company's
securities between April 11, 2017 and March 4, 2019, alleges
violations of the federal securities laws in connection with the
matters related to the Company's earnings per share (EPS)
calculation practices.
On September 17, 2019, the complaint was amended to, among other
things, extend the Class Period to cover the period between April
8, 2014 and March 4, 2019, and to name additional individuals
affiliated with the Company as defendants.
On March 17, 2021, the parties reached an agreement in principle to
settle the action on a class-wide basis. On June 29, 2021, the
parties entered into a stipulation of settlement, which they have
submitted to the Court for preliminary approval.
Healthcare Services said, "Our insurance carriers have agreed to
pay the entirety of the settlement amount upon court approval of
the settlement. As of March 31, 2021, the associated contingency
was included within the "Other accrued expenses" and "Prepaid
expenses and other assets" captions on the Company's Consolidated
Balance Sheet."
Healthcare Services Group, Inc., incorporated on November 22, 1976,
provides management, administrative and operating services to the
housekeeping, laundry, linen, facility maintenance and dietary
service departments of the healthcare industry, including nursing
homes, retirement complexes, rehabilitation centers and hospitals
located throughout the United States. The Company operates through
two segments: housekeeping, laundry, linen and other services
(Housekeeping), and dietary department services. The company is
based in Bensalem, Pennsylvania.
HEAT MAKE: Valdez Wage-and-Hour Suit Removed to E.D. California
---------------------------------------------------------------
The case styled CHRISTINA VALDEZ, individually and on behalf of all
others similarly situated v. HEAT MAKE SENSE, INC., DBA AMIKA; and
DOES 1 through 10, inclusive, Case No. 34-2021-00296194, was
removed from the Superior Court of the State of California, County
of Sacramento, to the U.S. District Court for the Eastern District
of California on July 23, 2021.
The Clerk of Court for the Eastern District of California assigned
Case No. 2:21-cv-01302-KJM-KJN to the proceeding.
The case arises from the Defendant's alleged violations of the
California Labor Code and the California Business and Professions
Code including failure to pay minimum wages, failure to pay
overtime compensation, failure to provide meal periods, failure to
authorize and permit rest breaks, failure to indemnify necessary
business expenses, failure to timely pay final wages at
termination, failure to provide accurate itemized wage statements,
and unfair business practices.
Heat Make Sense, Inc., doing business as Amika, is a wholesaler of
consumer discretionary products headquartered in New York. [BN]
The Defendant is represented by:
Carrie M. Francis, Esq.
STINSON LLP
1850 North Central Avenue, Suite 2100
Phoenix, AZ 85004-4584
Telephone: (602) 279-1600
Facsimile: (602) 240-6925
E-mail: carrie.francis@stinson.com
HL WELDING: $858K Class Settlement in Yanez Suit Has Prelim. Nod
----------------------------------------------------------------
In the case, LUIS LOPEZ YANEZ; KAYASONE MUONGKHOT; and JULIO RUBIO,
on behalf of themselves and all others similarly situated,
Plaintiffs v. HL WELDING, INC., Defendant, Case No. 20cv1789-MDD
(S.D. Cal.), Magistrate Judge Mitchell D. Dembin of the U.S.
District Court for the Southern District of California grants the
Plaintiffs' Motion for Preliminary Approval of Class Action, Fair
Labor Standards Act Collective Action, and Private Attorneys'
General Act Settlement.
On Oct. 10, 2019, Plaintiff Muongkhot filed a class action
complaint against HL Welding in San Diego Superior Court. The
initial complaint was filed on behalf of a putative class of
Welders, Ship Fitters, and other similarly situated employees
employed in California on or after Oct. 10, 2015. Shortly after
filing, the Defendant disclosed that many members of the putative
class signed arbitration agreements with HL Welding that included a
class action waiver.
On Feb. 13, 2020, Plaintiff Rubio initiated the 65-day
administrative exhaustion requirements with the California Labor
and Workforce Development Agency ("LWDA") that were required before
Mr. Rubio could join the Muongkhot Action as a representative
plaintiff to assert a claim under PAGA. The Plaintiffs then filed
an amended complaint in the Muongkhot Action wherein Rubio is named
as a plaintiff and proxy for the state of California.
In July 2020, following initial discovery and meeting and
conferring with the Defendant's counsel, the Plaintiff sought a
stipulation to amend the operative complaint in the Muongkhot
Action. The Defendant declined to stipulate, requiring the
Plaintiffs to file a Motion for Leave to Amend in the Muongkhot
Action to add additional plaintiffs and provide an expanded class
definition explicitly including all potential class positions in
addition to Welders and Shipfitters.
On Sept. 11, 2021, Plaintiff Yanez initiated the instant action.
On June 2, 2021, the Plaintiffs filed a First Amended Complaint
("FAC"), which is the operative complaint in the case. They
allege: (1) failure to pay overtime wages under California Labor
Code Sections 510, 1194; (2) failure to furnish accurate wage
statements under California Labor Code Sections 226, 226.3; (3)
waiting time penalties under California Labor Code Sections
201-2032; (4) unfair competition under California Business and
Professions Code Section 17200, et seq.; (5) civil penalties under
PAGA, California Labor Code Section 2698, et seq.; and (6) failure
to pay overtime wages under FLSA, 29 U.S.C. Section 207.
The gravamen of the Plaintiffs' complaint in the action and the
Muongkhot Action is that the Defendant "has used a pay scheme to
deprive Tradespeople of wages by paying a 'per diem' in addition to
hourly wages, but not including the per diem rate in its
calculation of overtime pay." As such, the Defendant has allegedly
not paid overtime using the proper regular rate of pay as required
by the FLSA and California law. Additionally, the Plaintiffs
allege derivative claims that Defendant failed to provide accurate
wage statements, "and that certain Tradespeople are due waiting
time and PAGA penalties."
The parties attended a mediation on March 24, 2021, with mediator
Scott Markus. The mediation involved discussion of settlement of
both this Action and the Muongkhot Action. The parties entered
into a signed Memorandum of Understanding to settle all of the
class and PAGA claims in both cases. Prior to mediation, Defendant
HL Welding shared with the Plaintiffs' counsel detailed data
regarding the class claims. HL Welding provided supplemental data
to the Plaintiffs' counsel on June 2, 2021, that confirmed the
relevant workweeks and pay periods that are the focus of the
disputes, and which also confirmed when class members worked
overtime hours that would be subject to additional compensation if
Plaintiffs prevailed on the merits. The parties spent the next two
months negotiating the terms of the full settlement agreement
presented in the instant motion, including the Settlement Notice to
the class.
The Plaintiffs seek preliminary approval of an $858,000
non-reversionary settlement with HL Welding to settle the
California and federal overtime pay, and related claims on behalf
of a class of Tradespeople.
In return for a release of all claims in this action, the Muongkhot
Action, and any related claims arising from the same facts averred
in the operative complaint, the Defendant agreed to create a
non-reversionary $858,000 Gross Settlement Amount ("GSA"). It will
separately pay the "employer's share" of employment taxes (FICA,
FUTA, SDI) on any payments classified as W-2 income or wages, over
and above the GSA.
The Plaintiffs request, and Defendant consents, that the fund be
distributed as follows: (1) Up to $12,000 for Settlement
Administration costs payable to Simpluris, Inc.; (2) Up to one
third (1/3) of the GSA or $286,000 for reasonable attorneys' fees;
(3) Up to $10,000 to reimburse Class Counsel for actual documented
litigation expenses; (4) Class representative service awards not to
exceed $15,000 paid to Plaintiffs Lopez Yanez, Kayasone Muongkhot
and Julio Rubio ($5,000 each) for their services to the class and
risks incurred; and (5) $100,000 for payment of PAGA penalties,
with 75% of this payment, or $75,000, sent to the LWDA and 25% of
this payment, or $25,000, distributed to PAGA Recipients, as
defined by the Settlement Agreement.
After these deductions, the remaining sum, or Net Settlement
Amount, would be distributed to Class members on a pro-rata basis
(based on workweeks in the applicable statutory periods). The
Plaintiffs' counsel estimates the Net Settlement Amount to be
$435,000.
Settlement Class Members will not be required to file claims in
order to receive their share of the Net Settlement Fund, but will
have the opportunity to correct any errors in the Defendant's
records to their numbers of weeks worked as Tradespeople in
California.
The proposed Settlement Class and Subclass definitions are as
follows:
a. "Settlement Class" and "Settlement Class Members" will
mean all current and former employees of HL Welding who were
employed as Welders, Ship Fitters, Pipefitters, Sheet Metal
workers, Electricians, Machinists, Riggers and Tackers
("Tradespeople") at any time from Oct. 1, 2015 and June 30, 2021
and who have not signed arbitration agreements with
class/collective action waivers with HL Welding and who fall within
one of the following two subclasses:
i. California Subclass: All current and former
employees of HL Welding who were employed as Welders, Ship Fitters,
Pipefitters, Sheet Metal workers, Electricians, Machinists, Riggers
and Tackers by Defendant in California at any time between Oct. 1,
2015 and June 30, 2021 ("California Subclass Period") and who have
not signed arbitration agreements with class/collective action
waivers with HL Welding.
ii. FLSA Subclass: All current and former employees of
HL Welding who were employed as Welders, Ship Fitters, Pipefitters,
Sheet Metal workers, Electricians, Machinists, Riggers and Tackers
by Defendant in states other than California at any time between
Sept. 15, 2017 and June 30, 2021 ("FLSA Subclass Period") and who
have not signed arbitration agreements with class/collective action
waivers with HL Welding.
The proposed class and subclass definitions are different from the
definitions in the operative complaint in the following respects:
the revised definitions (1) finalize the Class Period end date of
June 30, 2021, (2) create two subclasses, and (3) clarify that only
Tradespeople who did not sign arbitration agreements are included
in the class settlement and subject to the class release. That is,
any HL Welding employee who signed an arbitration agreement retains
his/her right to bring an individual arbitration for the overtime
and related claims at issue in the litigation.
In certifying the settlement class, the Plaintiffs request the
Court appoints Plaintiffs Lopez Yanez, Kayasone Muongkhot and Julio
Rubio as the class representatives and their counsel, David Pogrel
and Aaron Kaufmann, Leonard Carder, LLP, as the class counsel.
The parties agreed on Simpluris, Inc. as the Settlement
Administrator. After updating the database provided by the
Defendant through the National Change of Address database, the
Settlement Administrator will mail the Settlement Notice and
Estimated Share Form ("Notice Packet") to each class member. The
Notice Packet will inform Settlement Class Members of what their
estimated settlement amount is, as well as the number of Settlement
Class Members credited workweeks during the relevant period covered
by the settlement. The Settlement Notice will inform the Class
Members that they have four options: (1) do nothing and receive the
estimated amount set forth in the Notice; (2) dispute the amount
listed in the Notice; (3) object to the Settlement; or (4) exclude
himself or herself from the Settlement. Because this is not a
claims-made settlement, Class Members will not be required to make
a submission to participate in the settlement.
Judge Dembin preliminarily finds the proposed settlement is fair,
reasonable and adequate. He grants the Plaintiffs' motion and
preliminarily approves the proposed settlement. Simpluris, Inc. is
appointed as the Settlement Administrator.
Notice of the proposed settlement, and the rights of Settlement
Class Members, including the right to opt out of the settlement,
will be given by mailing of the Notice of Class Action and PAGA
Settlement by first class, postage prepaid, to all Settlement Class
Members and PAGA Recipients pursuant to the applicable provisions
in the Stipulation. HL Welding will provide the Settlement
Administrator with the information necessary to conduct this
mailing as set forth in the Stipulation.
A hearing will be held before the Court on Dec. 15, 2021, at 1:30
p.m., in Courtroom 3B to consider whether the settlement should be
given final approval by the Court: (a) Written objections by
Settlement Class Members to the proposed settlement will be
considered if delivered on or before the Notice Response Deadline;
(b) At the Final Approval Hearing, Settlement Class Members may be
heard orally in support of or in opposition to the settlement; (c)
Class Counsel and counsel for HL Welding should be prepared at the
hearing to respond to objections filed by Settlement Class Members,
and to provide other information as appropriate, bearing on whether
or not the settlement should be approved; (d) At the Final Approval
Hearing, the Court will consider any motions or applications for
attorney fees, costs and litigation expenses, and incentive payment
to the Class Representatives, consistent with the Settlement
Agreement, and any such motions will be filed with the Court no
less than 30 days before the Notice Response Deadline; and (e) At
the Final Approval Hearing, the Court will consider any motions for
approval of the PAGA settlement, which must be filed with the Court
no less than 30 days before the Notice Response Deadline.
In the event that the Effective Date occurs, all Settlement Class
Members will be deemed to have forever released and discharged the
Released Claims. In the event that the Effective Date does not
occur for any reason whatsoever, the Stipulation will be deemed
null and void and will have no effect whatsoever.
Jude Dembin orders the following schedule for further proceedings:
a. 5 days after preliminary approval of settlement -
Defendants to provide Settlement Administrator and Plaintiffs'
Counsel a final spreadsheet, which lists each Class Member's first
and last name, last known address and phone number, Social Security
number or ITIN, the dates of employment and total workweeks. The
version of the spreadsheet provided to Plaintiffs' counsel will
include only the last four digits of each Class Member's Social
Security number in lieu of the full number.
b. 30 days before Final Approval Hearing - Plaintiffs to file
Motion for Approval of Attorney's Fees and Costs, and Plaintiff
Service Awards.
c. 30 days after preliminary approval of settlement - Mailing
by first class mail of Class Action Settlement Notice and Estimated
Settlement Share Form (collectively "Notice Packet") by Settlement
Administrator.
d. No later than 25 days after mailing of Notice Packet -
Settlement Administrator to conduct trace/search efforts and send a
follow up mailing to Settlement Class Members whose Notice Packet
was returned as undeliverable or whose listed address is found to
be inaccurate or outdated.
e. 45 days after mailing of Notice Packet - Last day for
Settlement Class Members to opt out, challenge dates of employment,
or submit written objections.
f. 10 days after the Objection/ Exclusion Deadline -
Settlement Administrator to provide counsel with opt outs and
challenges received from Settlement Class Members, and also prepare
a declaration for Plaintiffs' counsel and Defendant's counsel
review and approval certifying the completion and results of the
class notice and related processes.
g. 30 days before final approval hearing - Last day for filing
and service of papers in support of final settlement approval of
Class Settlement and approval of PAGA Settlement. Including
declaration from Settlement Administrator.
h. Dec. 15, 2021, at 1:30 p.m. in Courtroom 3B of the Schwartz
Courthouse - Hearing for Final Approval and Approval of PAGA
Settlement
i. Date Court Grants Final Approval of the Settlement -
Settlement Effective Date
j. Within five days of the Settlement Effective Date -
Settlement Administrator to make the final calculation of payments
from the Net Settlement Fund to be distributed to the Settlement
Class Members and provide all Counsel with a report listing the
amount of all payments to be made to each Settlement Class Member
from the Net Settlement Fund. The Plaintiffs to file a Dismissal
of the Muongkhot Action.
Pending further order of the Court, all proceedings in the matter
except those contemplated in the Prelim Order and in the Settlement
Agreement are stayed.
The Court expressly reserves the right to adjourn or continue the
Final Approval Hearing without further notice to the Class.
A full-text copy of the Court's July 20, 2021 Order is available at
https://tinyurl.com/359a2nks from Leagle.com.
HONEYWELL INTERNATIONAL: Continues to Defend Kanefsky Class Suit
----------------------------------------------------------------
Honeywell International Inc. said in its Form 10-Q Report filed
with the Securities and Exchange Commission on July 23, 2021, for
the quarterly period ended June 30, 2021, that the company
continues to defend a putative class action suit initiated by David
Kanefsky.
On October 31, 2018, David Kanefsky, a Honeywell shareholder, filed
a putative class action complaint in the U.S. District Court for
the District of New Jersey alleging violations of the Securities
Exchange Act of 1934 and Rule 10b-5 related to the prior accounting
for Bendix asbestos claims.
An Amended Complaint was filed on December 30, 2019, and on
February 7, 2020, the company filed a Motion to Dismiss.
On May 18, 2020, the court denied the company's Motion to Dismiss.
Honeywell said, "We believe the claims have no merit."
No further updates were provided in the Company's SEC report.
Honeywell International Inc. is a worldwide diversified technology
and manufacturing company. The Company provides aerospace products
and services, control, sensing and security technologies,
turbochargers, automotive products, specialty chemicals, electronic
and advanced materials, process technology for refining and
petrochemicals, and energy-efficient products and solutions. The
company is based in Morris Plains, New Jersey.
INFINITY HEALTHCARE: Bid to Dismiss Lange ERISA Suit Partly Granted
-------------------------------------------------------------------
In the case, AMANDA LANGE, on behalf of herself and all others
similarly situated, Plaintiff v. INFINITY HEALTHCARE PHYSICIANS,
S.C., INFINITY HEALTHCARE, INC., THE BOARD OF DIRECTORS OF INFINITY
HEALTHCARE, INC., THE COMMITTEE OF THE INFINITY HEALTHCARE, INC.
EMPLOYEES' FLEXIBLE PROFIT SHARING PLAN, and JOHN DOES 1-30,
Defendants, Case No. 20-cv-737-jdp (W.D. Wis.), Judge James D.
Peterson of the U.S. District Court for the Western District of
Wisconsin granted in part the Defendants' motion of to dismiss the
ERISA claims in Plaintiff Lange's amended complaint.
The moving Defendants are Infinity Healthcare, Inc.; the Board of
Directors of Infinity Healthcare, Inc.; and the Committee of the
Infinity Health, Inc. Employees' Flexible Profit Sharing Plan.
The case is a proposed collective and class action. Plaintiff
Lange contends that her former employer, Defendant Infinity
Healthcare Physicians, S.C., failed to pay her in accordance with
the Fair Labor Standards Act, and that several fiduciaries failed
to manage her employer-sponsored retirement plan in accordance with
the Employee Retirement Income Security Act of 1974 (ERISA).
Defendant Infinity Healthcare Physicians sponsored and operated a
defined-contribution pension plan on behalf of its employees from
August 2014 to March 2019, when the plan ceased to exist after
Infinity Healthcare Physicians was acquired by another entity and
the plan was closed. Plaintiff Lange contributed to the Infinity
plan while it was open, and she is still a plan participant.
The plan had about $136 million in assets, invested in a variety of
funds. Some of the plan's investment options were actively
managed, meaning that participants' assets were placed into a
mutual fund overseen by a portfolio manager, who charged a fee to
the plan for his or her services. Other investment options were
passively managed, meaning that participants' assets were placed
into a market-indexed mutual fund. Lange contends that the
Infinity fiduciaries offered a set of actively managed investment
funds to plan participants without "making a specific and informed
finding" that the funds would outperform passively managed (and
therefore lower-cost) index funds.
The Infinity fiduciaries contracted with Great-West Life & Annuity
for various recordkeeping and administrative services, including
maintaining plan records, tracking participants' account balances
and investment choices, processing transactions, and the like. The
Infinity fiduciaries failed to solicit quotes or obtain competitive
bids for these services, causing the plan to pay unreasonable,
above-market fees to Great-West
The fiduciaries named as Defendants move to dismiss Lange's ERISA
claims on multiple grounds, including that Lange lacks standing to
sue.
Analysis
Ms. Lange seeks to represent a class of plan participants under
ERISA, contending that the Infinity fiduciaries violated their
fiduciary duties to plan participants by offering imprudent
actively managed investment options and by paying excessive fees
for recordkeeping and administrative services. To have standing to
bring these claims, Lange must show three things: (1) she suffered
an "injury in fact"; (2) the injury is "fairly traceable" to the
Infinity fiduciaries' challenged conduct; and (3) the injury "is
likely to be redressed by a favorable judicial decision," citing
Spokeo, Inc. v. Robins, 136 S.Ct. 1540, 1547 (2016). The Infinity
fiduciaries contend that Lange cannot show that she suffered an
injury in fact because she did not invest in any of the challenged
actively managed investment funds or in any fund that paid
recordkeeping fees to Great-West.
Judge Peterson agrees that Lange lacks standing to assert her ERISA
claims, so he does not need to consider the Infinity fiduciaries'
alternative argument that Lange's complaint fails to state a claim
for relief.
Ms. Lange asserts six claims in her complaint. Her first and
second claims (which aren't at issue) are based on her allegations
that Infinity Healthcare Physicians violated her rights under the
Fair Labor Standards Act. In her third through sixth claims, she
contends that the Infinity fiduciaries breached their fiduciary
duties under ERISA in various ways. In her third claim, she
contends that the Infinity fiduciaries violated their fiduciary
duties of prudence and loyalty by paying excessive recordkeeping
fees to Great-West. In her fourth claim, she contends that the
Infinity fiduciaries violated the same duties by choosing imprudent
investment options. In her fifth and sixth claims, she contends
that defendant Infinity Healthcare, Inc., failed to adequately
monitor the payment of recordkeeping fees and failed to adequately
monitor the selection of plan investment options.
The Infinity fiduciaries move to dismiss Lange's ERISA claims.
A. Actively managed investment options
Ms. Lange's fourth and sixth claims involve her allegations that
the Infinity fiduciaries chose imprudent investment options by
choosing more expensive actively managed funds without first
ensuring that those funds provided a better value than lower-cost,
passively managed funds. Her complaint includes a list of the
allegedly imprudent funds. Lange's plan statements, which the
Infinity fiduciaries submit in support of their motion, show that
all of Lange's retirement assets were invested in a fund called
"Vanguard Target Retirement 2045."
Judge Peterson finds, first, that Lange has adduced no proof that
she was injured, so she has failed to carry her burden. Lange
doesn't allege in her complaint that the Vanguard 2045 fund was one
of the mismanaged funds, so the Infinity fiduciaries say that Lange
couldn't have been injured by their choice of actively managed
funds. Second, the Infinity fiduciaries' evidence regarding
Lange's investments calls Lange's standing to assert her ERISA
claims into question, so the burden shifts to Lange to adduce
"competent proof that standing exists." Lange has failed to meet
this burden. Third, the only allegation that concerns Lange
specifically is her allegation that the "Plaintiff and the Plan's
Participants incurred actual expenses and costs" identified in a
chart. But that chart merely sums up the allegedly excessive
management costs from the challenged plans -- plans in which Lange
did not invest. Lange has failed to adduce competent proof to
support her allegations that she was harmed by these investment
decisions, so she hasn't carried her burden. Lange's fourth and
sixth claims are dismissed.
B. Recordkeeping and administrative services
Ms. Lange's third and fifth claims are based on her allegations
that the Infinity plan paid excessive fees for recordkeeping and
administrative services to Great-West. The plan's filings with the
Internal Revenue Service show that the plan paid Great-West's fees
entirely through a payment method known as "indirect compensation"
during the period in question. Lange says that she has alleged
that she suffered an actual injury to her Plan account as a result
of excessive recordkeeping fees, and that is all that is required
at this stage of the litigation.
Judge Peterson finds that Lange must do more than rely on the
allegations in her complaint to survive a factual challenge to her
standing to assert her claims regarding recordkeeping fees. The
Infinity fiduciaries have adduced evidence that Vanguard 2045 fund
participants did not pay any recordkeeping fees to Great-West.
Again, Lange must provide competent proof that she did pay such
fees to survive a motion to dismiss these claims. Lange also
speculates that the other funds in which the Vanguard 2045 fund
invests its assets might have paid Great-West through revenue
sharing. But she doesn't offer any proof or even identify specific
funds. She has failed to meet her burden in response to the
Infinity fiduciaries' factual challenge to the Court's
jurisdiction, so the Court must dismiss these claims, as well.
One matter remains. The Infinity fiduciaries move to dismiss
Lange's claims with prejudice. Although Lange doesn't raise the
issue, a court dismissing a complaint for lack of standing "has
only two options: It can either dismiss the complaint with leave to
amend, or it can dismiss the case for want of jurisdiction and
hence without prejudice." Lange has already amended her complaint
once, and she doesn't seek leave to amend a second time. So the
court will dismiss her claims without prejudice.
Conclusion
For these reasons, Judge Peterson concludes that the Infinity
fiduciaries have adduced evidence that their alleged mismanagement
of the retirement plan didn't affect the specific fund in which
Lange invested her assets, and Lange has failed to adduce any
evidence to the contrary. He concludes that Lange lacks standing
to assert her ERISA claims, so he grants the Infinity fiduciaries'
motion and dismisses those claims under Federal Rule of Civil
Procedure 12(b)(1).
The motion of Defendants Infinity Healthcare, Inc.; the Board of
Directors of Infinity Healthcare, Inc.; and the Committee of the
Infinity Health, Inc. Employees' Flexible Profit Sharing Plan to
dismiss the ERISA claims in Plaintiff Lange's amended complaint is
granted in part. Lange's ERISA claims are dismissed without
prejudice. These Defendants are dismissed from the case, as are
Defendants John Does 1-30.
A full-text copy of the Court's July 16, 2021 Opinion & Order is
available at https://tinyurl.com/rkcxux5f from Leagle.com.
INTEL CORP: Bid to Nix Class Suit Over 7nm Product Delays Pending
-----------------------------------------------------------------
Intel Corporation said in its Form 10-Q Report filed with the
Securities and Exchange Commission on July 23, 2021, for the
quarterly period ended June 30, 2021, that the motion to dismiss
filed in the consolidated securities class action related to the
company's July 2020 announcement of 7nm product delays, is
pending.
Starting in July 2020, five securities class action lawsuits were
filed in the U.S. District Court for the Northern District of
California against Intel and certain current and former officers
based on Intel's July 2020 announcement of 7nm product delays.
The plaintiffs, who purport to represent classes of acquirers of
Intel stock between October 2019 and July 2020, generally allege
that the defendants violated securities laws by making false or
misleading statements about the timeline for 7nm products in light
of subsequently announced delays. In October 2020, the court
consolidated the lawsuits and appointed lead plaintiffs, and in
January 2021 the lead plaintiffs filed a consolidated complaint.
Defendants moved to dismiss the consolidated complaint in March
2021.
Intel said, "We dispute the claims described above and intend to
defend the lawsuits vigorously. Given the procedural posture and
the nature of those cases, including that the pending proceedings
are in the early stages, that alleged damages have not been
specified, that uncertainty exists as to the likelihood of a class
or classes being certified or the ultimate size of any class or
classes if certified, and that there are significant factual and
legal issues to be resolved, we are unable to make a reasonable
estimate of the potential loss or range of losses, if any, that
might arise from those matters."
Intel Corporation offers computing, networking, data storage, and
communication solutions worldwide. It operates through Client
Computing Group, Data Center Group, Internet of Things Group,
Non-Volatile Memory Solutions Group, Programmable Solutions Group,
and All Other segments. The company was founded in 1968 and is
based in Santa Clara, California.
INTEL CORP: Spectre and Meltdown Virus-Related Suits Underway
-------------------------------------------------------------
Intel Corporation said in its Form 10-Q Report filed with the
Securities and Exchange Commission on July 23, 2021, for the
quarterly period ended June 26, 2021, that the company continues to
defend suits, including class action suits related to Spectre and
Meltdown virus.
In June 2017, a Google research team notified the company and other
companies that it had identified security vulnerabilities (now
commonly referred to as "Spectre" and "Meltdown") that affect many
types of microprocessors, including the company's products. As is
standard when findings like these are presented, the company worked
together with other companies in the industry to verify the
research and develop and validate software and firmware updates for
impacted technologies. On January 3, 2018, information on the
security vulnerabilities was publicly reported, before software and
firmware updates to address the vulnerabilities were made widely
available.
Numerous lawsuits have been filed against Intel and, in certain
cases, its current and former executives and directors, in U.S.
federal and state courts and in certain courts in other countries
relating to the Spectre and Meltdown security vulnerabilities, as
well as other variants of these vulnerabilities that have since
been identified.
As of July 21, 2021, consumer class action lawsuits relating to the
above class of security vulnerabilities publicly disclosed since
2018 were pending in the United States, Canada, and Israel.
The plaintiffs, who purport to represent various classes of
purchasers of our products, generally claim to have been harmed by
Intel's actions and/or omissions in connection with the security
vulnerabilities and assert a variety of common law and statutory
claims seeking monetary damages and equitable relief.
In the United States, numerous individual class action suits filed
in various jurisdictions were consolidated in April 2018 for all
pretrial proceedings in the U.S. District Court for the District of
Oregon. In March 2020, the court granted Intel's motion to dismiss
the complaint in that consolidated action but granted plaintiffs
leave to amend.
In March 2021, the court granted Intel's motion to dismiss the
amended complaint, but granted plaintiffs leave to further amend in
part. Plaintiffs filed a further amended complaint in May 2021
which Intel moved to dismiss in July 2021.
In Canada, in one case pending in the Superior Court of Justice of
Ontario, an initial status conference has not yet been scheduled.
In a second case pending in the Superior Court of Justice of
Quebec, a stay of the case is in effect until July 2021.
In Israel, two consumer class action lawsuits were filed in the
District Court of Haifa. In the first case, the District Court
denied the parties' joint motion to stay filed in January 2019, and
subsequently set a July 2021 deadline for Intel to respond to the
complaint. Intel filed a motion to stay the second case pending
resolution of the consolidated proceeding in the United States, and
a hearing on that motion has been scheduled for October 2021.
Additional lawsuits and claims may be asserted seeking monetary
damages or other related relief.
Intel said, "We dispute the pending claims described above and
intend to defend those lawsuits vigorously. Given the procedural
posture and the nature of those cases, including that the pending
proceedings are in the early stages, that alleged damages have not
been specified, that uncertainty exists as to the likelihood of a
class or classes being certified or the ultimate size of any class
or classes if certified, and that there are significant factual and
legal issues to be resolved, we are unable to make a reasonable
estimate of the potential loss or range of losses, if any, that
might arise from those matters."
Intel Corporation offers computing, networking, data storage, and
communication solutions worldwide. It operates through Client
Computing Group, Data Center Group, Internet of Things Group,
Non-Volatile Memory Solutions Group, Programmable Solutions Group,
and All Other segments. The company was founded in 1968 and is
based in Santa Clara, California.
JERRY W. BAILEY: $70K in Attorneys' Fees Awarded in Koch Suit
-------------------------------------------------------------
In the case, DANIEL KOCH, et al., Plaintiffs v. JERRY W. BAILEY
TRUCKING, INC., and ESTATE OF JERRY W. BAILEY, Defendants, Cause
No. 1:14-CV-72-HAB (N.D. Ind.), Judge Holly A. Brady of the U.S.
District Court for the Northern District of Indiana, Fort Wayne
Division:
(i) granted in part the Plaintiffs' Motion for an Award of
Statutory Attorney's Fees, Costs and Designation of
Evidence; and
(ii) denied as moot the Plaintiffs' Motion to Strike Portions
of Defendants' Opposition.
The case began more than seven years ago with the filing of a
complaint and, 10 days later, an amended complaint. The amended
complaint asserted a collective action for failure to pay overtime
wages under federal law, a class action for failure to pay wages
under Indiana law, and an individual action by Plaintiff Koch for
failure to pay wages under Indiana law.
In May 2014, the parties filed a joint stipulation to conditionally
certify both the class and collective actions. But the parties did
not define the class claims, requiring an order from the Court
directing them to do so. The Court also had concerns, based on the
Plaintiffs' counsel Ronald Weldy's disciplinary history, whether
Attorney Weldy could fairly and adequately represent the interests
of the class. As a result, the parties were ordered to brief
Attorney Weldy's competency as class counsel.
In December 2014, the Court denied the parties' stipulation for
certification. It found that Attorney Weldy's disciplinary
history, as well as his conduct in other cases before the Court,
rendered him incapable of representing the class. After the
Plaintiffs moved to reconsider, the Court vacated its December 2014
Order.
The parties then again stipulated to conditional certification,
which stipulation was granted in June 2015. Even so, the parties
could not agree on the class definitions or how the opt-in notices
were to be returned. The Court ultimately rejected the Plaintiffs'
proposed revisions to the class definitions, revised the
definitions itself, and forbade potential class members from
returning the opt-in forms by any means other than mail.
Nearly two years into the litigation, the Plaintiffs sought leave
to amend their complaint to add another named plaintiff and another
cause of action. The Defendants objected and the Court ultimately
agreed with Defendants, finding that the proposed amendment had
been unreasonably delayed and would be prejudicial to the
Defendants.
For the next two years there was little court action. It appears
from the docket that the parties spent this time conducting
discovery and engaging in settlement discussions. Those
discussions included an unsuccessful judicial settlement conference
with Magistrate Judge Susan Collins.
In April 2018, the Defendants moved to decertify the class and
collective actions. They also moved for summary judgment. The
Plaintiffs cross-moved for summary judgment while also opposing the
motion to decertify. Following the filing of responses, replies,
sur-replies, and motions to strike, the Court decertified the class
and collective actions in May 2019. It found that the Plaintiffs
overstated the number of potential class members at the
certification stage and that, considering the actual number of
opt-ins, the suit could be maintained as individual actions.
After another amendment to the complaint in December 2019, the
parties again cross-moved for summary judgment. The Court entered
an order on the cross-motion in August 2020. In summary, the Court
found that Defendant Linda Bailey could not be held personally
liable, but that the remaining Defendants had violated both state
and federal wage laws. It further found that Jerry Bailey's
personal liability, as well as the Defendants' intent to violate
wage laws, were matters for a jury to determine.
Armed with the order, the parties again participated in a judicial
settlement conference with Magistrate Judge Collins in November
2020. This time, settlement was reached. The total amount
recovered by all Plaintiffs was $60,642.69, roughly 60% of the
damages claimed in affidavits submitted as part of the summary
judgment briefs. The Plaintiffs moved three times to extend their
deadline to move for attorney fees and costs. They then determined
that they needed a final judgment before they could collect
attorney fees and costs. After more delays, the Court approved the
parties' settlement agreement in January 2021 and entered judgment
for the Plaintiffs two months later following the execution of the
settlement agreements.
The Plaintiffs moved for attorney fees in April 2021. After
continuances on both sides, the motion was fully briefed in
late-June 2021. The Court reviewed the briefs and ordered the
Plaintiffs to submit attorney fees reflecting the rates in effect
at the time services were rendered. That accounting has now been
tendered to the Court.
Legal Analysis
In total, the Plaintiffs seek an attorney fee award of $201,820.00
and a costs award of $5,729.36.
Judge Brady recognizes the Plaintiffs' statutory right to attorney
fees and costs. But the amount requested by the Plaintiffs is not
reasonable under the relevant factors.
Judge Brady finds that the lodestar calculation is $126,840 for
Attorney Weldy, $1,620 for Attorney Derringer, and $6,480 for the
paralegal. In total, the lodestar figure is $134,940. She also
finds that an award of $70,000 represents a reasonable fee in the
case. It closely approximates the actual recovery obtained and
reflects both the lodestar figure and the limited success
achieved.
There is also agreement between the parties that $3,836.09,
representing the filing, videographer, and court reporter fees, are
properly taxed. The remaining amount in dispute, $1,893.27,
represents "parking, hotel stays, mileage, postage, and copies."
The Plaintiffs do not argue that these are costs authorized by 28
U.S.C. Section 1920. Instead, they claim, citing Indiana
authority, that the amount should be "added to the attorney fee
requested since they are costs normally billed with attorney
fees."
In line with the directive in Little v. Mitsubishi Motors N.A.,
Inc., 514 F.3d 699, 701 (7th Cir. 2008), Judge Brady does not
assess the extra-statutory costs to the Defendants. Moreover,
without any federal authority authorizing the taxing of costs as
fees, she declines the Plaintiffs' invitation to do so. Thus, the
Judge assesses costs in the amount of $3,836.09.
C. Conclusion
For these reasons, Judge Brady granted in part the Plaintiffs'
Motion for an Award of Statutory Attorney's Fees, Costs and
Designation of Evidence. Attorney's fees of $70,000 and costs in
the amount of $3,836.09 are awarded in favor of the Plaintiffs and
against the Defendants. The Plaintiffs' Motion to Strike Portions
of Defendants' Opposition is denied as moot.
A full-text copy of the Court's July 16, 2021 Opinion & Order is
available at https://tinyurl.com/arse6yz3 from Leagle.com.
KANSAS CITY ROYALS: Senne Bid for Class Status Partly OK'd
----------------------------------------------------------
In the class action lawsuit captioned as AARON SENNE, et al., v.
KANSAS CITY ROYALS BASEBALL CORP., et al., Case No.
3:14-cv-00608-JCS (N.D. Cal.), the Hon. Judge Joseph C. Spero
entered an order:
1. granting in part and denying in part motion for Rule 23(b)
(2) class certification; and
2. appointing Korein Tillery LLC and Pearson, Simon &
Warshaw, LLP as Co-Lead Class Counsel for the proposed (b)
(2) class as well as the (b)(3) classes that have already
been certified.
The Court said, "The parties shall meet and confer to address the
specific wording of the Rule 23(b)(2) class definition that the
Court has approved, incorporating the limitations discussed above.
If the parties can agree, a stipulation shall be filed with the
Court by August 27, 2021 containing the revised class definition.
If the parties are unable to agree, they should jointly file by the
same date a statement, not to exceed five pages, setting forth the
competing proposed class definitions and explaining the basis for
any disagreements. In addition, the Court approves the appointment
of Korein Tillery, LLC and Pearson, Simon & Warshaw LLP as class
counsel for all of the classes certified in this action. The
parties are requested to supply an agreed-upon proposed order
appointing those firms as class counsel by August."
The Plaintiffs are minor league baseball players who assert claims
under the federal Fair Labor Standards Act (FLSA) and the
wage-and-hour laws of California, Arizona, and Florida against
Major League Baseball (MLB), MLB Commissioner Bud Selig, and 22 MLB
franchises (Franchise Defendants). The Plaintiff Cody Sedlock is a
current minor league baseball player; the remaining plaintiffs are
former minor league baseball players.
A copy of the Court's order dated July 23, 2021 is available from
PacerMonitor.com at https://bit.ly/3rKqvfn at no extra charge.[CC]
KIMPTON HOTEL: Thomas Has Until August 6 to File Class Cert. Bid
----------------------------------------------------------------
In the class action lawsuit captioned as JAKE THOMAS, et al., v.
KIMPTON HOTEL & RESTAURANT GROUP, LLC, Case No. 3:19-cv-01860-MMC
(N.D. Cal.), the Parties ask the Court to enter an order granting
second joint stipulation modifying the scheduling deadlines and
hearing date for plaintiffs' motion for class certification as
follows.
-- Deadline for Plaintiffs August 6, 2021
to file their Motion:
-- Deadline for Defendant September 3, 2021
to file its opposition to
the Motion:
-- Deadline for Plaintiffs September 23, 2021
to file their reply in
support of the Motion:
-- Hearing date for the October 15, 2021
Motion, or such other
time thereafter at the
Court's earliest convenience.
The Kimpton Hotel & Restaurant is a San Francisco, California,
based hotel and restaurant brand owned by the Intercontinental
Hotels Group. Founded in 1981 by Bill Kimpton and led by Chief
Executive Officer Mike DeFrino, the group was the largest chain of
boutique hotels in the United States in 2011.
A copy of the Parties motion dated July 23, 2021 is available from
PacerMonitor.com at https://bit.ly/3lhMFEx at no extra charge.[CC]
The Plaintiff is represented by:
Justin F. Marquez, Esq.
Thiago M. Coelho, Esq.
Robert J. Dart, Esq.
WILSHIRE LAW FIRM, PLC
3055 Wilshire Boulevard, 12 th Floor
Los Angeles, CA 90010
Telephone: (213) 381-9988
Facsimile: (213) 381-9989
E-mail: justin@wilshirelawfirm.com
thiago@wilshirelawfirm.com
rdart@wilshirelawfirm.com
The Defendant is represented by:
Jon P. Kardassakis, Esq.
Michael K. Johnson, Esq.
LEWIS BRISBOIS BISGARD & SMITH, LLP
633 West 5th Street
Los Angeles, CA 90071
Telephone: (213) 250-1800
Facsimile: (213) 250-7900
E-mail: Jon.Kardassakis@lewisbrisbois.com
Michael.Johnson@lewisbrisbois.com
KONINKELIJKE PHILIPS: Autry Sues Over Health Risks of CPAP Devices
------------------------------------------------------------------
RUSSELL D. AUTRY and JOSH GLOVER, on behalf of themselves and all
others similarly situated, Plaintiffs v. KONINKELIJKE PHILIPS N.V.;
PHILIPS NORTH AMERICA LLC; and PHILIPS RS NORTH AMERICA LLC,
Defendants, Case No. 2:21-cv-00983-MRH (W.D. Pa., July 23, 2021) is
a class action against the Defendants for breach of express
warranty, breach of implied warranty of merchantability, fraudulent
misrepresentation, fraud by omission, negligent misrepresentation,
unjust enrichment, medical monitoring, and violation of the
Pennsylvania Unfair Trade Practices and Consumer Protection Law.
According to the complaint, the Defendants manufactured and sold
Continuous Positive Airway Pressure (CPAP) and BiLevel Positive
Airway Pressure (BiLevel PAP) devices and mechanical ventilators
for sleep and home respiratory care, which contain polyester-based
polyurethane sound abatement foam (PE-PUR Foam). The Defendants
recalled CPAP and BiLevel PAP devices and mechanical ventilators
containing PE-PUR Foam because they determined that (a) the PE-PUR
Foam was at risk for degradation into particles that may enter the
devices' pathway and be ingested or inhaled by users, and (b) the
PE-PUR Foam may off-gas certain chemicals during operation health
risks associated to the devices. As a result of the health risks
associated with continued use of these devices and the recall, the
Plaintiff's CPAP devices are now worthless. The Plaintiff will be
forced to replace the device at considerable cost when a
replacement is available.
Koninklijke Philips N.V. is a health technology company with its
principal executive offices at Philips Center, Amstelplein 2, 1096
BC Amsterdam, The Netherlands.
Philips North America LLC is a health technology company with its
principal place of business located at 222 Jacobs Street, Floor 3,
Cambridge, Massachusetts.
Philips RS North America LLC is a company that manufactures and
markets medical devices with its principal place of business
located at 6501 Living Place, Pittsburgh, Pennsylvania. [BN]
The Plaintiffs are represented by:
Arnold Levin, Esq.
Sandra L. Duggan, Esq.
Laurence S. Berman, Esq.
Frederick S. Longer, Esq.
LEVIN SEDRAN BERMAN LLP
510 Walnut Street, Suite 500
Philadelphia, PA 19106
Telephone: (215) 592-1500
Facsimile: (215) 592-4663
E-mail: alevin@lfsblaw.com
sduggan@lfsblaw.com
lberman@lfsblaw.com
flonger@lfsblaw.com
- and –
Jeffrey A. Barrack, Esq.
BARRACK, RODOS & BACINE
3300 Two Commerce Square
2001 Market Street
Philadelphia, PA 19103
Telephone: (215) 963-0600
Facsimile: (215) 963-0838
E-mail: jbarrack@barrack.com
- and –
John G. Emerson, Esq.
EMERSON FIRM, PLLC
2500 Wilcrest, Suite 300
Houston, TX 77042
Telephone: (800) 551-8649
Facsimile: (501) 286-4659
E-mail: jemerson@emersonfirm.com
LIMETREE BAY: Court Issues Upcoming Deadlines in Shirley Suit
-------------------------------------------------------------
In the cases, HELEN SHIRLEY, et al., Plaintiffs v. LIMETREE BAY
VENTURES, LLC, et al., Defendants. BEECHER COTTON, et al.,
Plaintiffs v. LIMETREE BAY VENTURES, LLC, LIMETREE BAY REFINING,
LLC, LIMETREE BAY TERMINALS, LLC, ARCLIGHT CAPITAL PARTNERS, LLC,
FREEPOINT COMMODITIES, LLC, EIG GLOBAL ENERGY PARTNERS, LLC, BP
PRODUCTS NORTH AMERICA, and JOHN DOES, Defendants, Civil Action
Nos. 2021-0259, 2021-0261 (D.V.I.), Judge Wilma A. Lewis of the
U.S. District Court for the District of Virgin Islands, Division of
St. Croix, issued a Memorandum Opinion and Order that summarizes
the issues addressed; embodies the Court's rulings to date;
discusses the current status of the proceedings; and memorializes
the upcoming deadlines.
The matter comes before the Court on the Plaintiffs' Motion for a
Protective Order Regarding Limetree's Communications with Putative
Class Members and the Plaintiffs' Emergency Motion for Temporary
Restraining Order and Preliminary Mandatory Injunction. Although
the captioned civil actions are not consolidated, a combined oral
argument was held on July 15, 2021, due to the overlap of certain
issues contained in the Motions.
Analysis
1. Bankruptcy Petition
On July 12, 2021, Defendant Limetree Refining filed a Chapter 11
Petition for Bankruptcy with the U.S. Bankruptcy Court for the
Southern District of Texas. A notice of the bankruptcy was filed
with the Court on July 14, 2021.
Title 11 U.S.C. Section 362(a)(1) provides that the filing of a
bankruptcy petition results in an automatic stay of judicial
proceedings against the debtor. Accordingly, the instant civil
actions are stayed as they pertain to claims against Defendant
Limetree Refining. The question remains, however, as to whether
the automatic stay applies to Limetree Refining's co-defendants in
these matters.
The Defendants argue that because of the interwoven nature and
overlap of issues, facts, and law, the automatic stay also applies
to the co-defendants. Defendant Arclight Capital Partners, LLC
adds that the automatic stay should apply to the co-defendants from
a sense of equity and fairness. In light of Third Circuit
precedent, the Court is not convinced at this point that the
automatic stay extends beyond Limetree Refining.
Before the Court renders a final ruling on the breadth of the
automatic stay, the Court has granted the Defendants' request to
brief the issue. The Defendants were to file their submissions on
July 27, 2021. The Plaintiffs will have until Aug. 3, 2021, within
which to file their responses if there is essentially a single
substantive submission from all the Defendants, or until Aug. 9,
2021 if separate substantive submissions are filed. In turn, the
Defendants will have until Aug. 9, 2021, within which to file their
replies if the Plaintiffs file their responses on April 3, 2021, or
until Aug. 16, 2021, if the Plaintiffs file their responses on Aug.
9, 2021. While a final ruling on the issue of the applicability of
the automatic stay to Defendant Limetree Refining's co-defendants
is pending, the Court will continue to address the matters before
it.
2. Mandatory Injunctive Relief
The Plaintiffs in Cotton seek relief in the form of a mandatory
injunction directing Defendants Limetree Ventures and Limetree
Terminals to "properly clean up the oil spill, to include, but not
limited to, cleaning the Plaintiffs' homes, cisterns, vehicles and
grounds promptly." In order to be entitled to injunctive relief,
the federal standard requires a showing by the Plaintiffs of each
of the following four factors: (1) a reasonable probability of
success on the merits; (2) that they will suffer irreparable harm
if the injunction is denied; (3) that granting preliminary relief
will not result in even greater harm to the nonmoving parties; and
(4) that the public interest favors such relief.
Based on the record before the Court, Judge Lewis finds that Cotton
Plaintiffs have failed to establish irreparable harm because
monetary relief would be available at the end of the proceedings.
Thus, the Plaintiffs' Emergency Motion for a Mandatory Injunction
is denied at this time.
However, the Judge has afforded Cotton Plaintiffs an opportunity to
present additional evidence, if any, to support their argument for
mandatory injunctive relief. In that regard, Cotton Plaintiffs had
until July 23, 2021, within which to submit additional evidence to
the Court in support of their mandatory injunction argument, and
Defendants Limetree Ventures and Limetree Terminals had until Aug.
2, 2021, within which to respond to the Plaintiffs' submission.
The parties will have until Aug. 3, 2021, within which to request
an evidentiary hearing on the matter.
3. Releases
Rule 23(d) of the Federal Rules of Civil Procedure provides
district courts with the authority to exercise its discretion in
regulating communications with putative class members to prevent
abuse. In addition, the Court should give "explicit consideration
to the narrowest possible relief which would protect the respective
parties."
Based on a balancing of these competing interests, and in order to
provide the narrowest possible relief, Judge Lewis denies the
following requests by the Plaintiffs: to prohibit the Defendants
from engaging in any communications with the putative class
members; to provide the Plaintiffs with a list of the names and
addresses of every putative class member who has received a
release, has signed a release, and/or has been otherwise contacted
by the Defendants; to disclose the names and contact information of
those with whom the Defendants have settled; and to log any further
communications with the unrepresented putative class members and
submit the log to the Court.
The Judge finds, however, that the Release and Amended Release that
the Defendants have used should be revised to adequately inform
potential class members about the existing class action cases and
to prevent the Releases from being misleading. She has directed
the parties to meet and confer with the goal of agreeing on
language for the Release and presenting the proposed revisions to
the Court. The counsel for the two other class action cases
pending before this Court (21-cv-253 and 21-cv-260) have not sought
similar relief, but may engage in this review process. The parties
had until July 26, 2021, within which to submit a joint proposal
for revisions to the Release, or separate proposals if agreement
cannot be reached.
In the meanwhile, the Defendants are enjoined from soliciting
agreements and using the Release, Amended Release, or any other
Release pending the Court's review and approval of an appropriate
Release. Pursuant to Fed. R. Civ. P. 65, the Temporary Restraining
Order is in effect commencing on July 16, 2021 and continuing for
fourteen days unless either shortened or extended pursuant to
appropriate procedures. At this time, the Judge has deferred its
ruling on whether the Release and Amended Release are deemed
invalidated or void.
4. Jurisdictional Issues
Shirley Plaintiffs -- joined by Cotton Plaintiffs -- mentioned
potential issues of subject matter jurisdiction related to the
removal of the cases to the Court from the Superior Court. The
Plaintiffs have indicated that jurisdictional discovery is
necessary while at least some Defendants have maintained that such
discovery is unnecessary.
In view of the fact that the jurisdictional issues have not been
developed, Judge Lewis cannot make findings on the issue at this
time. She has ordered that Cotton Plaintiffs had until July 23,
2021, within which to file a Motion for Remand, including any
request for jurisdictional discovery; the Defendants will have
until Aug. 4, 2021, within which to file their response thereto;
and the Plaintiffs will have until Aug. 10, 2021, within which to
file their reply. The Judge is aware of a request for
jurisdictional discovery in the Shirley matter, and is anticipating
a response to that request from Defendants Limetree Ventures and
Limetree Terminals.
Order
Upon consideration of the foregoing, Judge Lewis stayed these cases
with regard to claims against Limetree Bay Refining, LLC.
The Defendants' Memoranda regarding the applicability of the
automatic stay to Limetree Bay Refining, LLC's co-defendants in
these matters, which will include a discussion of the Third Circuit
opinions in Maritime Elec. Co. v. United Jersey Bank, 959 F.2d 1194
(3d Cir. 1991) and In re Exide Techs., 544 F.3d 196 (3d Cir. 2008),
was due on July 27, 2021.
The Plaintiffs will have up to and including Aug. 3, 2021 within
which to file their responses if there is essentially a single
substantive submission from all the Defendants, or until Aug. 9,
2021 if separate substantive submissions are filed.
The Defendants will have up to and including Aug. 9, 2021 within
which to file their replies if the Plaintiffs file their responses
on April 3, 2021, or until Aug. 16, 2021, if they file their
responses on Aug. 9, 2021.
The Plaintiffs' Emergency Motion for Temporary Restraining Order
and Preliminary Mandatory Injunction is denied as moot as to
Defendants Arclight Capital Partners, LLC, EIG Global Energy
Partners, LLC, and BP Products North America, LLC.
The Plaintiffs' Emergency Motion for a Mandatory Injunction is
denied without prejudice as to Defendants Limetree Ventures, LLC
and Limetree Terminals, LLC.
Cotton Plaintiffs had until July 23, 2021, within which to submit
additional evidence in support of their request for mandatory
injunctive relief.
Defendants Limetree Bay Ventures, LLC and Limetree Bay Terminals,
LLC had until Aug. 2, 2021, within which to respond to the
Plaintiffs' submissions.
Cotton Plaintiffs and Limetree Bay Ventures, LLC and Limetree Bay
Terminals, LLC will have up to and including Aug. 3, 2021, within
which to request that the Court holds an evidentiary hearing to
address the Plaintiffs' Motion for a Mandatory Injunction.
The Plaintiffs' request for modification of the Release and Amended
Release is granted.
Pursuant to Fed. R. Civ. P. 65, Limetree Bay Ventures, LLC and
Limetree Bay Terminals, LLC are enjoined from soliciting agreements
and using the Release, Amended Release, or any other Release for 14
days, commenced on July 16, 2021, unless either shortened or
extended pursuant to appropriate procedures.
The parties had until July 26, 2021, within which to meet and
confer and file a joint proposal to amend the Release, or to notify
the Court that they have been unable to reach an agreement and
submit separate proposals.
Cotton Plaintiffs' request to prohibit the Defendants from
otherwise engaging in communications with putative class members is
denied.
The following requests by the Plaintiffs are denied: To provide the
Plaintiffs with a list of the names and addresses of every putative
class member who has received a release, has signed a release,
and/or has been otherwise contacted by the Defendants; to disclose
the names and contact information of those with whom the Defendants
have settled; and to log any further communications with the
unrepresented putative class members and submit the log to the
Court.
The Court's ruling on whether the Release and Amended Release are
deemed invalidated or void is deferred.
Cotton Plaintiffs had until July 23, 2021, within which to file a
Motion for Remand, including any request for jurisdictional
discovery.
Cotton Defendants will have up to and including Aug. 4, 2021,
within which to file their responses thereto.
Cotton Plaintiffs will have up to and including Aug. 10, 2021,
within which to file their reply.
A full-text copy of the Court's July 16, 2021 Memorandum Opinion &
Order is available at https://tinyurl.com/5cuvxn8m from
Leagle.com.
John-Russell Bart Pate, Esq. -- pate@sunlawvi.com -- St. Thomas,
U.S.V.I., Korey A. Nelson, Esq. -- knelson@burnscharest.com --
Charles Jacob Gower, Esq. -- jgower@burnscharest.com -- in New
Orleans, Louisiana, Vincent A. Colianni, II, Esq., St. Croix,
U.S.V.I., For Shirley Plaintiffs
Lee J. Rohn, Esq., St. Croix, U.S.V.I. For Cotton Plaintiffs
Robert J. Kuczynski, Esq. -- Robb@beckstedtlaw.com -- Carl A.
Beckstedt, III, Esq. -- carl@beckstedtlaw.com -- St. Croix,
U.S.V.I., For Defendants Limetree Bay Ventures, LLC, Limetree Bay
Refining, LLC, and Limetree Bay Terminals, LLC
Charles Edward Lockwood, Esq. -- clockwood@dnfvi.com -- Gregg R.
Kronenberger, Esq., St. Croix, U.S.V.I., Matthew Owen, Esq., in
Washington, D.C., For Defendant Arclight Capital Partners, LLC
Adam Nicholas Marinelli, Esq., St. Thomas, U.S.V.I. For Defendant
EIG Global Energy Partners, LLC
Schuyler A. Smith, Esq. -- smith@hamiltonmillerlaw.com -- Jennifer
Quildon Brooks, Esq., in Miami, Florida, For Defendant BP Products
North America
LOUISIANA: Judge Endorses Dismissal of Wallace Suit
---------------------------------------------------
In the class action lawsuit captioned as CHARLES KENNETH WALLACE,
SR. v. JOHN BELL EDWARDS, ET AL., Case No. 5:20-cv-01673-SMH-MLH
(W.D. La.), the Hon. Judge Mark L Hornsby recommended that:
1. the Plaintiff's civil rights claims seeking monetary
damages and injunctive and declaratory relief for his
allegedly unconstitutional sentence be dismissed with
prejudice as frivolous under 28 U.S.C. section 1915(e)
until such time as the Heck conditions are met.
2. the Plaintiff's motion to appoint special master counsel
and his motion for class certification be denied as moot.
The Court said, "Because the Plaintiff filed this proceeding in
forma pauperis ("IFP"), if this court finds Plaintiff's complaint
to be frivolous it may dismiss the complaint as such at any time,
before or after service of process, and before or after answers
have been filed. See 28 U.S.C. section 1915(e); Green v. McKaskle,
788 F.2d 1116, 1119 (5th Cir. 1986); Spears v. McCotter, 766 F.2d
179, 181 (5th Cir. 1985). The District courts are vested with
extremely broad discretion in making a determination of whether an
IFP proceeding is frivolous and may dismiss a claim as frivolous if
the IFP complaint lacks an arguable basis either in law or in
fact."
The Plaintiff is incarcerated at the David Wade Correctional Center
in Homer, Louisiana. He names John Bell Edwards, Jeffery M. Landry,
the US Department of Justice, David Wade Correctional Center, John
A. Alario, Jr, and Taylor F. Barras as defendants.
The Plaintiff claims he was denied the constitutional right to the
presumption of innocence guaranteed in the US Constitution. He
claims the Louisiana Legislature failed to give due process notice
of the definition of murder. He claims actus reus, actor, and human
being are not defined in the homicide statutes. He claims the
State's burden of proof is eliminated and it can select any meaning
for human being.
David Wade Correctional Center is a Louisiana Department of Public
Safety and Corrections prison located in an unincorporated area of
Claiborne Parish between Homer and Haynesville, Louisiana.
A copy of the Court's order dated July 23, 2021 is available from
PacerMonitor.com at https://bit.ly/3xgtr4B at no extra charge.[CC]
LVNV FUNDING: Bid for Class Cert. Must be Filed by October 15
-------------------------------------------------------------
In the class action lawsuit captioned as TRAVIS HOWARD, VANESSA
HOWARD, WILLIAM SIMMS, CHARLES NEFF, STACY ADAMS-NEFF, and GWEN
SNYDER, individually and on behalf of all others similarly
situated, v. LVNV FUNDING, LLC, and RESURGENT CAPITAL SERVICES, LP,
Case No. 3:19-cv-00093-KRG (W.D. Pa.), the Hon. Judge Kim R. Gibson
entered a case management order as follows:
a. The Parties shall complete all discovery regarding class
certification by October 1, 2021.
b. Plaintiffs' Motion for Class Certification shall be filed
by October 15, 2021.
c. Defendants' Response shall be filed by November 15, 2021.
d. Plaintiff's Reply Brief shall be filed by November 29,
2021.
LVNV Funding is a debt collection agency.
A copy of the Court's order dated July 23, 2021 is available from
PacerMonitor.com at https://bit.ly/3liavQt at no extra charge.[CC]
MANHATTAN SCHOOL: Wins Partial Judgment on Pleadings in Flatscher
-----------------------------------------------------------------
In the case, ALINA FLATSCHER, Individually and on Behalf of All
Others Similarly Situated, Plaintiff v. THE MANHATTAN SCHOOL OF
MUSIC, Defendant, Case No. 20 Civ. 4496 (KPF) (S.D.N.Y.), Judge
Katherine Polk Failla of the U.S. District Court for the Southern
District of New York granted in part and denied in part the
Defendant's motion for judgment on the pleadings.
Plaintiff Flatscher brings the putative class action against
Defendant The Manhattan School of Music ("MSM") for injuries
allegedly suffered as a result of the school's response to the
COVID-19 pandemic during the Spring 2020 semester, during which
semester Defendant ceased in-person instruction, restricted access
to school facilities, and transitioned to online learning. The
Plaintiff alleges that these changes deprived her and other MSM
students of the educational experiences for which they had
bargained and paid. She asserts claims for (i) breach of implied
contract, (ii) unjust enrichment, (iii) conversion, and (iv)
deceptive business practices in violation of Section 349 of the New
York General Business Law ("NYGBL").
The Plaintiff is a vocalist currently residing in Austria. In the
fall of 2016, she enrolled in a Bachelor of Music degree program at
MSM. The Defendant describes itself as a "premier international
conservatory" located in New York City. Obtaining an education at
MSM is not inexpensive: For the 2019-2020 academic year, the
Defendant charged each student $48,280 in tuition. In addition, it
imposes various fees on its students and also requires students to
select and pay for one of the school's four meal plans. Upon
enrolling at MSM, each student enters into a Financial
Responsibility Agreement ("FRA") with the Defendant, wherein the
student "accepts full responsibility to pay all tuition, fees, and
other associated costs assessed as a result of their registration
and/or receipt of services.
In exchange for students' tuition and fees, the Defendant promises
a campus "designed to meet all the needs of young performers." In
its course catalogue, the Defendant assures students that "tuition
payment provides access to Manhattan School of Music facilities
when classes are in session." To attract students, the Defendant
makes several representations about its classes and the educational
opportunities it offers. As a musical conservatory, many of the
Defendant's classes "require" "hands-on" instruction in its
facilities and "in-person" performance.
In the Spring of 2020, the Plaintiff was in her final semester of
study at MSM and on the brink of graduation. On March 13, 2020,
with the COVID-19 pandemic escalating, the Defendant announced that
all classes would be conducted online starting March 23, 2020. It
also extended students' spring break vacation by an additional
week. The Plaintiff alleges that the Defendant closed its campus
and limited access to many of its facilities. For the remainder of
the semester, the Defendant continued with online learning and
limited access to school facilities.
The Plaintiff continued her education remotely throughout the
Spring 2020 semester, although she alleges that her classes
"required hands-on, in-person attendance." In May, the Defendant
announced that it would not hold its graduation ceremonies as
planned. Instead, it hosted a virtual "toast" to celebrate its
graduates. The Defendant did not refund the Plaintiff any portion
of the graduation fee she paid.
As a result of the changes implemented by the Defendant in response
to the COVID-19 pandemic, the Plaintiff alleges that she was denied
the benefits it promised her. Specifically, the Plaintiff expected
to receive "face to face interaction with professors, mentors,
coaches, and peers," "access to facilities such as music rooms,
study rooms, libraries, practice rooms, concert halls, and
recording studio rooms," and "in-person/hands-on classes,
auditions, and rehearsals." The Defendant has not offered the
Plaintiff nor other students refunds for any portion of the tuition
or fees assessed for the Spring 2020 semester. As such, the
Plaintiff brings the instant action on behalf of herself and all
other MSM students enrolled during the Spring 2020 semester to
recover a portion of the tuition and fees paid to Defendant.
On June 11, 2020, the Plaintiff initiated the litigation, and the
Defendant answered her initial complaint on Oct. 6, 2020. On Oct.
9, 2020, the Defendant filed a pre-motion letter seeking to pursue
a motion for judgment on the pleadings, to which letter the
Plaintiff filed an opposition on Oct. 13, 2020. That same day, the
parties attended an initial pretrial conference at which they
discussed with the Court the Defendant's anticipated motion for
judgment on the pleadings. At the conference, the Court granted
the Plaintiff leave to file an amended complaint and directed the
Defendant to submit a letter regarding its intent to answer the
amended complaint or to pursue motion practice by Nov. 25, 2020.
Thereafter, on Nov. 13, 2020, the Plaintiff filed the Amended
Complaint; the Defendant filed another pre-motion letter seeking
leave to file a motion to dismiss on Nov. 25, 2020; and the
Plaintiff filed a letter in opposition on Nov. 30, 2020. By
endorsement dated Dec. 1, 2020, the Court adopted the parties'
proposed briefing schedule.
On Dec. 22, 2020, the Defendant answered the Amended Complaint and
filed its motion for judgment on the pleadings and supporting
papers; the Plaintiff filed her opposition papers on Jan. 22, 2021;
and the Defendant filed its reply on Feb. 5, 2021. On Feb. 23,
2021, the Plaintiff filed a supplemental letter to respond to
arguments regarding a recently-decided case raised by the Defendant
for the first time in its reply brief. Since then, the parties
have each submitted notices of supplemental authority.
B. Analysis
1. Plaintiff Adequately Pleads a Breach of Implied Contract Claim
The parties do not dispute, at least for purposes of the instant
motion, that the Court has subject matter jurisdiction under the
Class Action Fairness Act of 2005 ("CAFA"), Pub. L. 109-2, 119
Stat. 4-14 (2005). Additionally, both parties analyze the
Plaintiff's claims under New York law. The parties agree that
there is no express contract that entitles the Plaintiff to
in-person educational experiences. Rather, the Plaintiff alleges
that an implied contract exists between the Defendant and its
students, and that it breached this contract by denying the
Plaintiff: (i) specific in-person educational experiences, (ii)
certain services, and (iii) access to particular facilities.
Among other things, the Defendant contends that tuition constitutes
"payment for instruction," and entitles the Plaintiff to nothing
more than "instruction in her chosen courses by MSM faculty and
credit toward a MSM degree. It also contends that the terms of the
FRA demand dismissal.
Judge Failla finds the Defendant's statements to be sufficiently
specific to give the Plaintiff the expectation that her payment of
tuition and fees entitled her to more than just course credit
towards graduation, and instead encompassed physical access to MSM
facilities and certain in-person, hands-on educational experiences.
However, and to be clear, the Judge is not suggesting that the
Defendant acted improperly in closing its facilities during the
COVID-19 pandemic, as it clearly acted to protect the health and
safety of staff, students, and faculty.
2. The Court Will Not Dismiss Plaintiff's Unjust Enrichment Claim
as Duplicative
In the alternative, the Plaintiff alleges the Defendant's conduct
constitutes unjust enrichment. The Defendant argues this claim
should fail because it is duplicative of the Plaintiff's breach of
implied contract claim.
Judge Failla opines that in the instant matter, the parties dispute
the existence of any agreement entitling the Plaintiff to in-person
educational experiences. Because of this dispute, and at this
stage in the litigation, the Plaintiff's claim for unjust
enrichment is not yet duplicative of her breach of implied contract
claim.
3. The Court Dismisses Plaintiff's Remaining Claims
a. Conversion
Under New York law, to plead a claim of conversion, a plaintiff
must establish that "[i] the property subject to conversion is a
specific identifiable thing; [ii] plaintiff had ownership,
possession, or control over the property before its conversion; and
[iii] defendant exercised an unauthorized dominion over the thing
in question, to the alteration of its condition or to the exclusion
of the plaintiff's rights." A conversion claim may only succeed if
a plaintiff alleges wrongs and damages distinct from those
predicated on a breach of contract.
Judge Failla opines that the Plaintiff's claim fails on two fronts.
First, the Plaintiff's claim must be dismissed as duplicative of
her breach of implied contract claim. Second, the Plaintiff does
not predicate her claim on a "specifically identifiable and
segregated" fund.
b. NYGBL Section 349
The Defendant argues that the Plaintiff's NYGBL claim should be
dismissed because the Plaintiff "does not and cannot claim that any
conduct by MSM has been deceptive or misleading." In response, the
Plaintiff asserts that "the issue of whether MSM's acts were
materially misleading cannot be resolved at this stage" and is
better left to a jury.
Judge Failla finds that the Plaintiff alleges that had she known
"that MSM's claims regarding the provision of the on-campus
experience were false or subject to MSM's unilateral change without
provision of any refund, Plaintiff would not have paid the price."
But the Defendant did not -- and could not -- know that its
representations were false or that it would need to transition
abruptly to online learning. As such, the Judge agrees with the
Defendant and dismisses the Plaintiff's claim brought pursuant to
Section 349 of the NYGBL.
Conclusion
Judge Failla does not fault the Defendant for taking steps in
Spring 2020 to prioritize the health of MSM's students, faculty,
and staff over in-person learning experiences. That said, the
pleadings suggest that such steps may have breached an implied
contract with MSM's students. Accordingly, and for the reasons set
forth in her Opinion, Judge Failla granted in part and denied in
part the Defendant's motion to dismiss. The Clerk of Court is
directed to terminate the motion pending at docket entry 26. By
Aug. 10, 2021, the parties are ordered to submit a joint status
letter and a proposed Civil Case Management Plan.
A full-text copy of the Court's July 20, 2021 Opinion & Order is
available at https://tinyurl.com/pdf7d8p2 from Leagle.com.
McDONALD'S CORP: Bid to Dismiss Fairley & Strike Class Claims Nixed
-------------------------------------------------------------------
In the case, JAMELIA FAIRLEY and ASHLEY REDDICK, on behalf of
themselves and all those similarly situated, Plaintiffs v.
McDONALD'S CORPORATION, McDONALD'S USA, LLC, and McDONALD'S
RESTAURANTS of FLORIDA, INC., Defendants, Case No. 20-cv-02273
(N.D. Ill.), Judge Franklin U. Valderrama of the U.S. District
Court for the Northern District of Illinois, Eastern Division,
denied the Defendants':
-- Motion to Dismiss Plaintiffs' First Amended Complaint (FAC)
pursuant to Federal Rule of Civil Procedure 12(b)(6); and
-- Motion to Strike the Class Allegations of the FAC.
Plaintiffs Fairley and Reddick work and worked at a McDonald's
restaurant in Sanford, Florida. The Plaintiffs allege that they
worked in a discriminatory, sexually charged, and hostile work
environment. They brought a class-action suit against the
Defendants, asserting counts for sex harassment, hostile work
environment, and retaliation, under Title VII of the Civil Rights
Act of 1964, as amended (Title VII), 42 U.S.C. Section 2000(e), et
seq. and the Florida Civil Rights Act, Fla. Stat. Ann. Section
760.
The Plaintiffs are both female employees who previously worked or
currently work at the same McDonald's corporate owned and operated
McOpCo restaurant in Sanford, Florida (Sanford Restaurant).
McDonald's Corp. and/or its subsidiaries, including but not limited
to McDonald's USA and McDonald's of Florida, own and operate over
650 non-franchised restaurants in the United States, and directly
employ some 40,000 restaurant-level employees at its corporate
owned and operated "McOpCo" restaurants. The largest concentration
of corporate owned and operated McOpCo restaurants is in Florida,
where the Defendants own and operate over 100 restaurants and
employ over 6,000 workers. McDonald's of Florida is a wholly-owned
subsidiary of McDonald's USA, which is a wholly-owned subsidiary of
McDonald's Corporation.
The Plaintiffs allege that all Defendants operated the corporate
owned and operated McOpCo stores in Florida during the relevant
period and jointly employed all workers there, including the
Plaintiffs, the class members, and the managers, as well as
higher-level supervisors and HR representatives with authority over
multiple stores in Florida. They allege that all Defendants are
jointly liable for their failure to prevent and remediate the acts
of sexual harassment, retaliation, discrimination, and civil rights
violations complained of in the FAC.
McDonald's workers throughout Florida have reported that they were
sexually harassed and that McDonald's failed to prevent or
remediate the harassment. The Plaintiffs allege that managers and
other supervisors to whom harassment is reported (as instructed by
McDonald's policies) -- including operations consultants, HR
representatives, and others responsible for overseeing multiple
McDonald's restaurants, have not been properly trained in how to
investigate and remediate sexual harassment. They allege that they
and other women were subjected to a sexually hostile work
environment at the Defendants' McOpCo stores in Florida because
Defendants do not have effective policies and practices to prevent
and remediate sexual harassment.
On May 10 and May 21, 2019, Fairley and Reddick respectively filed
charges of sex discrimination on behalf of themselves and all
others similarly situated with the United States Equal Employment
Opportunity Commission (EEOC) and Florida Commission on Human
Relations (Florida Commission).
Plaintiffs Fairley and Reddick have filed a class-action suit
against the Defendants, asserting counts for sex harassment,
hostile work environment, and retaliation, arising under Title VII
and the Florida Civil Rights Act.
The Plaintiffs propose a class consisting of: all female employees
who work or worked in a position below that of General Manager at
Defendants' corporate owned and operated McOpCo McDonald's
restaurants in Florida, for a time period from four years before
the filing of this lawsuit to the time of trial.
The Plaintiffs also propose a subclass consisting of: all female
employees who work or worked in a position below that of General
Manager at any of Defendants' corporate owned and operated McOpCo
McDonald's restaurants in Florida during the Class Period who,
after complaining of or reporting sexual harassment, were subject
to adverse employment action, including but not limited to,
termination, discipline, reduction in hours, assignment to inferior
shifts, or transfer to an inferior restaurant location.
Before the Court are (1) the Defendants' Motion to Dismiss
Plaintiffs' FAC under Rule 12(b)(6), Mot. Dismiss, and (2) their
Motion to Strike Plaintiffs' class allegations under Rules 12(f),
23(c)(1)(A), and 23(d)(1)(D).
Analysis
I. Motion to Dismiss
At the outset, the Court must address an issue raised in the
Defendants' Reply about what the Court may properly consider when
analyzing Defendants' Motion to Dismiss. The Plaintiffs attach
several exhibits to their Response opposing dismissal: The
Defendants' Statements of Position with Respect to the Plaintiffs'
EEOC Charge and exhibits thereto and Fairley's paystub. Relying
only on out-of-Circuit cases, the Defendants argue that, because
these documents were neither specifically referenced in the FAC nor
attached as exhibits thereto, the Court should not consider them
when deciding the Motion to Dismiss.
Judge Valderrama disagrees. He says, it is well settled that the
Court can consider facts contained in a plaintiff's opposition
brief or exhibits thereto, so long as they are consistent with the
allegations in the complaint. The issue, therefore, is whether the
documents "are consistent with the pleadings." Contrary to the
Defendants' argument, the exhibits attached to the Response
elaborate on the FAC's factual allegations by specifying the
entities that controlled Plaintiffs' working conditions or employed
the supervisor who did so, which sometimes seem at odds with one
another. The FAC states that the "Defendants are the corporate
entities that comprise the Plaintiffs' employer." The Judge cannot
say that the exhibits elaborating on which Defendant may have
controlled which employment function are not "consistent with the
complaint." He, therefore, may consider the exhibits to the
Plaintiffs' Response when deciding the Defendants' Motion to
Dismiss.
Having dispensed with the preliminary issue, Judge Valderrama now
turns to the merits of the Motion to Dismiss. The Defendants
advance five bases for dismissal. First, the Plaintiffs' FAC
violates Rule 8 of the Federal Rule of Civil Procedure because
Plaintiffs group all three Defendants together without attributing
the alleged wrongful conduct to any particular Defendant. Second,
the Plaintiffs' contention that Defendants are a "single
enterprise" or "joint employers" is meritless, and no Defendant is
liable for the conduct of the Plaintiffs' co-workers. Third, the
Plaintiffs failed to exhaust their administrative remedies.
Fourth, Reddick's claims are time-barred and she fails to state a
claim for retaliation. Finally, the Plaintiffs' Florida Civil
Rights Act claims fail for the same reasons.
A. Group Pleading
The Defendants maintain that the FAC is defective because the
Plaintiffs have grouped all the Defendants together without
attributing the alleged wrongful conduct to any particular
defendant. As noted by the Plaintiffs, to the extent that the
Defendants' argument is that group pleading violates Rule 8 of the
Federal Rules of Civil Procedure, that contention is incorrect.
The issue, therefore, is whether the FAC provides sufficient
details to put the Defendants on notice of the Plaintiffs' claims.
Judge Valderrama agrees with the Plaintiffs that the FAC provides
the Defendants sufficient notice of the claims brought against
them. First, it alleges that the Defendants are responsible for
the hostile work environment at McOpCo restaurants because of
inadequate policies and training relating to sexual harassment.
Second, the FAC identifies specific instances of sexual harassment
which were reported to specifically named managers and supervisors,
who did not adequately address the alleged harassment. Contrary to
the Defendants' argument, the Plaintiffs need not include specific
facts as to any of the three corporate entities, since the facts
alleged put "each defendant on fair notice of the claims." Hence,
the Plaintiffs' allegations are sufficient under Rule 8(a).
B. Single Enterprise/Joint Employer
Next, the Defendants argue that while the Plaintiffs have sued
McDonald's Corporation, McDonald's USA, and McDonald's of Florida,
the Plaintiffs' Title VII claims must be pursued against the entity
with which they have an "employment relationship." They contend
that the FAC consists of sparse, conclusory allegations
insufficient to allege an employment relationship with each
Defendant, and even if they were adequate, the Plaintiffs fail to
allege that Defendants had knowledge of the alleged harassment or
failed to take appropriate corrective measures.
Judge Valderrama agrees with the Defendants that Title VII claims
can only be brought against an entity with which a plaintiff has
"an employment relationship," but it is also true that, "for
purposes of Title VII, an employee can have more than one employer;
an entity can be an indirect employer or a joint employer or have
some other complex combined relationship with an employee."
However, he agrees with the Plaintiffs that, at this stage, they
have sufficiently pled that each Defendant had knowledge of the
alleged harassment and failed to take appropriate corrective
measures. Based on the information available to the Plaintiffs --
and in the possession of the Defendants -- the Plaintiffs have
adequately pled an employment relationship with each Defendant and
that each Defendant had knowledge of the alleged harassment or
failed to take appropriate corrective measures. It would be
premature to dismiss the Plaintiffs' claims before discovery.
C. Failure to Exhaust Administrative Remedies
Next, the Defendants argue that the Plaintiffs have failed to
exhaust their administrative remedies. They seek dismissal of part
of the Plaintiffs' sex discrimination claim, arguing that the FAC
allegations that the Defendants' "uniform nationwide policies,
practices, and procedures," promulgated an environment that allowed
for sexual harassment against women and a hostile work environment
at the Defendants' stores, exceed the scope of the Plaintiffs' EEOC
charges.
Judge Valderrama agrees with the Plaintiffs that they exhausted
their administrative requirements: Their EEOC charges contained
sufficient allegations that the Defendants engaged in a pattern
and/or practice of maintaining a hostile work environment and
retaliated against those who complained about sex discrimination
and harassment. The Plaintiffs' FAC does not allege disparate
impact claims, but rather only discrimination, hostile work
environment, and retaliation claims. The Plaintiffs adequately put
the Defendants on notice through their charges that the Defendants
had policies contributing to, and that they engaged in, a pattern
of sexual harassment and hostile work environment.
D. Statute of Limitations and Failure to State a Claim
The Defendants also argue that Reddick's hostile work environment
claim is time-barred and that she fails to state a claim for
retaliation. Neither party spends much time on these arguments.
Reading the FAC in the light most favorable to Reddick, Judge
Valderrama finds that Reddick's hostile work environment and
retaliation claims both survive. Among other things, the FAC
alleges that "other employees, especially long-term employees such
as Ms. Reddick, were not terminated for being 'confrontational.'
On information and belief, Ms. Reddick was terminated in
retaliation for her opposition to and reporting of Frazier's sexual
harassment." Combined with Reddick's allegations about her reports
of sexual harassment, the Judge finds that, for now, this is enough
to sufficiently plead a causal connection between her complaints of
harassment and her termination.
E. Florida Civil Rights Act
The parties generally agree that the Plaintiffs' Florida Civil
Rights Act claims rise or fall with their Title VII claims.
Because he has held that the Plaintiffs have adequately stated a
claim under Title VII, Judge Valderrama also finds that they have
sufficient pled claims under the Florida Civil Rights Act.
II. Motion to Strike
The Defendants also move to strike the FAC's class allegations
under Federal Rules of Civil Procedure 12(f), 23(c)(1)(A), and
23(d)(1)(D). They advance five bases to strike the class
allegations. First, no putative class members' claims present a
common question that can satisfy Rule 23(a). Second, for similar
reasons, the Plaintiffs cannot demonstrate typicality. Third,
conflicts among the class make it impossible to establish adequacy.
Fourth, individual issues far outnumber any purported common
questions, and thus, it is not possible for the Plaintiffs to
establish predominance or superiority under Rule 23(b)(3). Fifth,
the Plaintiffs' class claims exceed the scope of the charges filed
with the EEOC.
Judge Valderrama opines that (i) he cannot find that the
Plaintiffs' allegations of sex discrimination are so individualized
that they "could not possibly present common questions of law or
fact sufficient to justify class action treatment; (ii) the
Plaintiffs' allegations are sufficient, for now, to satisfy Rule
23(a)'s typicality requirement; (iii) it "is more prudent to deny
the Defendants' motion to strike the Plaintiffs' class allegations
with leave granted to them to amend the class definition to remove
the defect upon filing their motion for class certification and
consider the Defendants' additional objections to the Plaintiffs'
class allegations when the Defendants oppose the Plaintiffs' motion
to certify the classes; (iv) it is too early to determine whether
the questions common to the class predominate the questions
pertaining to the individual class members, but at this point it is
"possible" that they do; and (v) he cannot say, at this stage, that
it is an extraordinary case in which "additional discovery would
not be useful in resolving the class determination."
Conclusion
For the reasons given, Judge Valderrama denied the Defendants'
Motion to Dismiss and their Motion to Strike. The Defendants have
until Aug. 10, 2021 to answer the First Amended Complaint. The
parties are instructed to submit a joint status report by Aug. 17,
2021.
A full-text copy of the Court's July 20, 2021 Memorandum Opinion &
Order is available at https://tinyurl.com/2zu8cb52 from
Leagle.com.
MONDELEZ INT'L: Continues to Defend Wheat Trading-Related Suit
--------------------------------------------------------------
Mondelez International, Inc. said in its Form 10-Q Report filed
with the Securities and Exchange Commission on July 27, 2021, for
the quarterly period ended June 30, 2021, that the company
continues to defend a consolidated class action suit related to
wheat trading contracts.
On April 1, 2015, the U.S. Commodity Futures Trading Commission
("CFTC") filed a complaint against Kraft Foods Group and Mondelez
Global LLC in the U.S. District Court for the Northern District of
Illinois, Eastern Division (the "CFTC action") following its
investigation of activities related to the trading of December 2011
wheat futures contracts that occurred prior to the spin-off of
Kraft Foods Group.
The complaint alleges that Kraft Foods Group and Mondelez Global
(1) manipulated or attempted to manipulate the wheat markets during
the fall of 2011; (2) violated position limit levels for wheat
futures and (3) engaged in non-competitive trades by trading both
sides of exchange-for-physical Chicago Board of Trade wheat
contracts.
The CFTC seeks civil monetary penalties of either triple the
monetary gain for each violation of the Commodity Exchange Act or
$1 million for each violation of Section 6(c)(1), 6(c)(3) or
9(a)(2) of the Act and $140,000 for each additional violation of
the Act, plus post-judgment interest; an order of permanent
injunction prohibiting Kraft Foods Group and Mondelez Global from
violating specified provisions of the Act; disgorgement of profits;
and costs and fees.
On August 15, 2019, the District Court approved a settlement
agreement between the CFTC and Mondelēz Global. The terms of the
settlement, which are available in the District Court's docket, had
an immaterial impact on the company's financial position, results
of operations and cash flows. On October 23, 2019, following a
ruling by the United States Court of Appeals for the Seventh
Circuit regarding Mondelez Global's allegations that the CFTC and
its Commissioners violated certain terms of the settlement
agreement and the CFTC's argument that the Commissioners were not
bound by the terms of the settlement agreement, the District Court
vacated the settlement agreement and reinstated all pending motions
that the District Court had previously mooted as a result of the
settlement. The parties have reached a new agreement in principle
to resolve the CFTC action and have submitted the settlement to the
District Court for approval.
The District Court canceled a scheduled conference on June 4, 2020
to discuss the proposed settlement agreement but indicated that it
would rule on pending motions in due course.
Additionally, several class action complaints were filed against
Kraft Foods Group and Mondelez Global in the District Court by
investors in wheat futures and options on behalf of themselves and
others similarly situated.
The complaints make similar allegations as those made in the CFTC
action, and the plaintiffs are seeking monetary damages, interest
and unjust enrichment; costs and fees; and injunctive, declaratory
and other unspecified relief. In June 2015, these suits were
consolidated in the District Court.
On January 3, 2020, the District Court granted plaintiffs' request
to certify a class.
Mondelez said, "It is not possible to predict the outcome of these
matters; however, based on our Separation and Distribution
Agreement with Kraft Foods Group dated as of September 27, 2012, we
expect to bear any monetary penalties or other payments in
connection with the CFTC action and the class action. Although the
CFTC action and the class action complaints involve the same
alleged conduct, a resolution or decision with respect to one of
the matters may not be dispositive as to the outcome of the other
matter."
Mondelez International, Inc., through its subsidiaries,
manufactures and markets snack food and beverage products
worldwide. It offers biscuits, including cookies, crackers, and
salted snacks; chocolates; gums and candies; coffee and powdered
beverages; and cheese and grocery products. Mondelez International,
Inc. was founded in 2000 and is based in Deerfield, Illinois.
MOTT PHO: Galicia Seeks Minimum and OT Wages Under FLSA, NYLL
-------------------------------------------------------------
JUAN GALICIA, individually and on behalf of all others similarly
situated v. MOTT PHO BANG RESTURANT, INC. and VU BANG, and RAY
KONG, and NHI UYEN VUONG, as individuals, Case No. 1:21-cv-06383
(S.D.N.Y., July 27, 2021) seeks to recover damages for the
Defendants' egregious violations of the State and Federal wage and
hour laws arising out of Plaintiff's employment at Mott Pho.
Accordingly, the Defendants did not pay Plaintiff time and a half
for all his hours worked over 40 in a workweek, the suit says.
As a result of the alleged violations of the Fair Labor Standards
Act and the New York Labor Laws, the Plaintiff seeks compensatory
damages, and liquidated damages in an amount exceeding $100,000.00.
The Plaintiff also seeks interest, attorneys' fees, costs, and all
other legal, and equitable remedies that this Court deems
appropriate.[BN]
The Plaintiff is represented by:
HELEN F. DALTON & ASSOCIATES, P.C.
80-02 Kew Gardens Road, Suite 601
Kew Gardens, NY 11415
Telephone (718) 263-9591
NEC NETWORKS: Faces Rodgers Suit Over Data Breach
-------------------------------------------------
MICHELLE RODGERS, individually and on behalf of herself and all
others similarly situated v. NEC NETWORKS LLC dba CAPTURERX, Case
No. 5:21-cv-00692 (W.D. Tex., July 21, 2021) arises from the
Defendant's failure to properly safeguard its customers' current
and former patients' personally identifiable information (PII),
including Class Members' full names, dates of birth and addresses.
Defendant also failed to properly safeguard Class Members'
protected health information (PHI), including prescription
medication data and medical record numbers.
According to the complaint, on February 6, 2021, as a result of
CaptureRx's lax security and monitoring protocols, criminals gained
unauthorized access to CaptureRx's system and acquired sensitive
records belonging to CaptureRx's clients ("Data Breach").
Currently, it is believed that the sensitive PII and PHI of nearly
two million individuals were exposed in the Data Breach.
Inexplicably, CaptureRx did not begin notifying the individual
victims of the breach until May of 2021. For example, Plaintiff
received letters about the Data Breach dated May 18, 2021.
CaptureRx did not adequately safeguard Plaintiff's data, and now
she and apparently millions of other patients are the victims of a
significant data breach that will negatively affect them for years.
CaptureRx is responsible for allowing this Data Breach through its
failure to implement and maintain reasonable safeguards and failure
to comply with industry-standard data security practices as well as
federal and state laws and regulations governing data security,
including security of PHI, the complaint adds.
Plaintiff Rodgers received health services from ARcare, which
entrusted Plaintiff Rodgers's PII and PHI to Defendant CaptureRx, a
large provider of Section 340B administrative services to
healthcare providers. [BN]
The Plaintiff is represented by:
Jarrett L. Ellzey, Esq.
ELLZEY & ASSOCIATES, PLLC
1105 Milford Street
Houston, TX 77006
Phone: (888) 350-3931
Fax: (888) 276-3455
E-mail: jarrett@ellzeylaw.com
- and -
Terence R. Coates, Esq.
MARKOVITS, STOCK & DEMARCO, LLC
3825 Edwards Road, Suite 650
Cincinnati, OH 45209
Phone: (513) 651-3700
Fax: (513) 665-0219
E-mail: tcoates@msdlegal.com
- and -
Bryan L. Bleichner, Esq.
CHESTNUT CAMBRONNE PA
100 Washington Avenue South, Suite 1700
Minneapolis, MN 55401
Phone: (612) 339-7300
Fax: (612) 336-2940
E-mail: bbleichner@chestnutcambronne.com
ONESTAFF MEDICAL: Prelim. Approval of Madison Class Deal Endorsed
-----------------------------------------------------------------
In the case, PAMELA MADISON, an individual on behalf of herself and
others similarly situated, Plaintiff v. ONESTAFF MEDICAL LIMITED
LIABILITY COMPANY, Defendant, Case No. 1:20-cv-01384-AWI-JLT (E.D.
Cal.), Chief Magistrate Judge Jennifer L. Thurston of the U.S.
District Court for the Eastern District of California recommends
that the Plaintiff's motion for preliminary approval of class
settlement be granted.
OneStaff places hourly healthcare workers on short-term travel
assignments at medical facilities throughout the nation
(Travelers), including nurses and technicians, on temporary travel
assignments at hospitals and clinics throughout the nation. The
Plaintiff was employed by OneStaff as a Traveler in Bakersfield,
California between September 2019 and December 2019.
The complaint, filed on Sept. 30, 2020, asserts three putative
class claims under California law: (1) failure to pay overtime
under California Labor Code Section 510; (2) unfair business
practices under California Business & Professions Code Section
17200, et seq.; and (3) waiting time penalties under California
Labor Code Section 203. In addition, the complaint asserts a
putative collective claim under the FLSA, 29 U.S.C. Section 201, et
seq. Each of these claims is premised on OneStaff's exclusion of
per diem and allowance payments from Travelers' overtime wages.
The Plaintiff seeks to represent a class of Travelers "employed by
OneStaff in California at any time since Sept. 30, 2016 who
received hourly per diems, hourly housing allowances, and/or hourly
travel allowances." She also seeks to represent a collective of
Travelers "employed by OneStaff in California at any time since
Sept. 30, 2016 who received hourly per diems, hourly housing
allowances, and/or hourly travel allowances."
OneStaff filed its answer on Dec. 1, 2020, denying any and all
alleged liability and asserting multiple affirmative defenses.
Prior to reaching settlement, the Plaintiff engaged in both formal
and informal discovery regarding the policies challenged in the
lawsuit, OneStaff's defenses to liability and class certification,
and the potential damages owing to members of the putative class
and collective.
On Feb. 28, 2021, pursuant to a stipulation between the parties,
the Court stayed the case to enable the parties to explore the
possibility of an early settlement of the action.
On April 15, 2021, the parties mediated with former federal
magistrate judge Hon. Jan M. Adler and ultimately agreed on the
principal terms of the settlement. On May 26, 2021, following
further negotiations, the parties finalized the present joint
stipulation and settlement agreement.
Pursuant to the proposed settlement, the parties agree to a gross
settlement amount not to exceed $525,000. If the Court approves
the Settlement, the following estimates the breakdown of payments
from this amount: $14,000 for settlement administration fees;
$5,250 for a service award to the Plaintiff; and $131,250 for
attorneys' fees and $15,000 in costs.
After the above deductions from the gross settlement amount, the
balance of approximately $348,500 will constitute the net
settlement amount available for distribution to the settlement
class and collective. The Settlement provides that $9,550 of the
net settlement amount will be allocated to the settlement
collective. The remainder of the net settlement amount will be
allocated to the settlement class. The average individual
settlement payment is currently estimated to be approximately
$505.
Members of the settlement class are not required to submit a claim
form in order to receive their pro rata share of the net settlement
amount. Instead, unless an individual chooses to affirmatively
opt-out of the Settlement, each member of the settlement class will
automatically receive his or her pro rata share of the net
settlement amount allocated to the settlement class. The pro rata
shares of those settlement class members who choose to opt-out, if
any, will be redistributed on a pro rata basis to participating
settlement class members. The pro rata shares of those settlement
collective members who do not opt-in, if any, will be redistributed
on a pro rata basis to participating settlement collective
members.
The amount of the net settlement allocated to the settlement class
will be divided among the settlement class members, pro rata, based
on the number of workweeks in which California overtime was worked
within the class period, i.e., from Sept. 30, 2016 through Sept.
19, 2020. The net settlement amount allocated to the settlement
class will first be divided by the aggregate number of workweeks in
which California overtime was worked by all class members during
the class period to determine the monetary value of each qualifying
workweek. The settlement payment to each individual class member
will then be calculated by multiplying the number of qualifying
workweeks worked by that individual by the monetary value of each
qualifying workweek.
Similarly, the amount of the net settlement allocated to the
settlement collective will be divided among the settlement
collective members, pro rata, based on the number of workweeks in
which FLSA overtime was worked within the collective period, i.e.
from Sept. 30, 2017 through Sept. 19, 2020. The net settlement
amount allocated to the settlement collective will first be divided
by the aggregate number of workweeks in which FLSA overtime was
worked by all collective members during the collective period to
determine the monetary value of each qualifying workweek. The
settlement payment to each individual collective member will then
be calculated by multiplying the number of qualifying workweeks
worked by that individual by the monetary value of each qualifying
workweek.
Settlement checks will remain valid for 180 days. Uncashed funds
will be deposited with the State of California Controller's Office
pursuant to the Unclaimed Property Law.
After final approval and upon the settlement administrator's
disbursement of the funds allocated to the settlement class, all
settlement class members who have not opted-out of the Settlement
will release all claims "which relate to the wage and hour and
California Labor Code claims alleged in the Complaint or relate to
other claims that could have been alleged based on the facts
asserted in the Complaint." Upon the settlement administrator's
disbursement of the funds allocated to the settlement collective,
all settlement collective members who opted-in to the Settlement
will release all claims "which relate to the FLSA unpaid overtime
claim alleged in the Complaint or relate to other FLSA claims that
could have been alleged based on the facts asserted in the
Complaint."
All members of the settlement class and collective will be sent,
via First Class Mail, a notice of the Settlement. Settlement class
members will have 45 days to opt-out of the Settlement, object to
the Settlement, or dispute the number of qualified workweeks
attributed to them. Likewise, settlement collective members will
have 45 days to opt-in to the Settlement, object to the Settlement,
or dispute the number of qualified workweeks attributed to them.
Settlement class members who wish to opt-out need only mail a
signed letter to the settlement administrator expressing an
intention to opt-out that contains the individual's name, address,
and telephone number. Settlement collective members who wish to
opt-in need only complete the "FLSA Consent Form" enclosed with the
notice and return it to the settlement administrator. All FLSA
Consent Forms received will be filed with the Court.
Individuals who wish to object to the Settlement need only mail a
written objection to the settlement administrator expressing an
intention to object to the Settlement and the reasons for the
objection that contains the individual's name, address, telephone
number, and the last four digits of his or her social security
number (for identity verification purposes).
Judge Thurston finds the proposed class settlement is fair,
adequate, and reasonable. The factors set forth by the Ninth
Circuit weigh in favor of preliminary approval of the settlement
agreement. Moreover, preliminary approval of a settlement and
notice to the proposed class is appropriate "if [1] the proposed
settlement appears to be the product of serious, informed,
noncollusive negotiations, [2] has no obvious deficiencies, [3]
does not improperly grant preferential treatment to class
representatives or segments of the class, and [4] falls within the
range of possible approval." The proposed settlement agreement
satisfies this test.
Accordingly, Judge Thurston recommends the following:
1. The Plaintiff's motion for preliminary approval of class
action settlement be granted.
2. The following Class be certified for settlement purposes
only: All non-exempt hourly healthcare professionals employed by
OneStaff in California at any time from Sept. 30, 2016 and Sept.
19, 2020 who worked overtime and received hourly per diems, hourly
housing allowances, and/or hourly travel allowances.
3. The following FLSA Collective be certified for settlement
purposes only: All non-exempt hourly healthcare professionals
employed by OneStaff in California at any time from Sept. 30, 2017,
and Sept. 19, 2020, who worked overtime, as defined under the FLSA,
and received hourly per diems, hourly housing allowances, and/or
hourly travel allowances.
4. The Court finds that, for purposes of the settlement, the
defined Class meets the requirements for class certification. For
purposes of the settlement, the requirements of Federal Rules of
Civil Procedure 23(a) and 23(b)(3) are satisfied.
5. The Plaintiff's counsel, Hayes Pawlenko LLP, be appointed
as the counsel for the class and collective.
6. Pamela Madison be appointed as the representative for the
class and the collective but that the request for an enhancement be
reserved pending the motion for final approval of the settlement.
7. CPT Group, Inc. be appointed as the claims administrator.
8. The proposed settlement detailed be approved on a
preliminary basis as fair and adequate.
9. The Class counsel's request for fees up to 25% of the
gross settlement amount and up to $15,000 in costs be granted
preliminarily, subject to the counsel's petition for fees and
review at the Final Approval Hearing. Class and collective members
and their counsel may support or oppose this request, if they so
desire, at the Final Approval Hearing.
10. The proposed notice be preliminarily approved, and the
parties be required to file a finalized notice with required
revisions for the Court's approval.
11. The Court sets a final approval and fairness hearing and
schedules based upon the schedule set forth in the motion for
preliminary approval.
These findings and recommendations are submitted to the district
judge assigned to the action, pursuant to 28 U.S.C. Section
636(b)(1)(B) and the Court's Local Rule 304. Within 14 days of
service of the recommendation, any party may file written
objections to these findings and recommendations with the Court and
serve a copy on all parties. Such a document should be captioned
"Objections to Magistrate Judge's Findings and Recommendations."
The district judge will review the magistrate judge's findings and
recommendations pursuant to 28 U.S.C. Section 636(b)(1)(C). The
parties are advised that failure to file objections within the
specified time may result in the waiver of rights on appeal.
A full-text copy of the Court's July 20, 2021 Findings &
Recommendation is available at https://tinyurl.com/wjhw7ccn from
Leagle.com.
OREGON: Seeks to Stay Wolfe Case Pending Resolution in "Maney"
--------------------------------------------------------------
In the class action lawsuit captioned as Ryan Wolfe, v. Kate Brown,
Collette Peters, Oregon Dept. of Corrections, Case No.
6:21-cv-00192-SB (D. Or.), the Defendants asks the Court to enter
an order staying case pending the resolution of the motion for
class certification in Maney et al. v. Brown et al., Case No.
6:20-cv-00570.
This motion relates to the ongoing COVID-19 litigation against the
Oregon Department of Corrections ("ODOC") and/or related persons in
the District of Oregon. The Defendants will be seeking a brief stay
of most federal cases that could fit within the putative classes of
plaintiffs in Maney pending resolution of the motion for class
certification in Maney. This is one of those cases.
The Oregon Department of Corrections is the agency of the U.S.
state of Oregon charged with managing a system of 14 state prisons
since its creation by the state legislature in 1987.
A copy of the Defendants' motion dated July 23, 2021 is available
from PacerMonitor.com at https://bit.ly/2TMsVgV at no extra
charge.[CC]
The Defendants are represented by:
Ellen F. Rosenblum, Esq.
Tracy Ickes White, Esq.
Department of Justice
1162 Court Street NE
Salem, OR 97301-4096
Telephone: (503) 947-4700
Facsimile: (503) 947-4791
E-mail: Tracy.I.White@doj.state.or.us
PAYCHEX NORTH: Callahan Labor Suit Removed to N.D. California
-------------------------------------------------------------
The case styled STANLEY CALLAHAN and FAISAL GAILANI, individually
and on behalf of all others similarly situated v. PAYCHEX NORTH
AMERICA, INC., and DOES 1 through 10, inclusive, Case No.
HG21102203, was removed from the Superior Court of the State of
California, County of Alameda, to the U.S. District Court for the
Northern District of California on July 23, 2021.
The Clerk of Court for the Northern District of California assigned
Case No. 3:21-cv-05670 to the proceeding.
The case arises from the Defendant's alleged violations of the
California Labor Code and the California Business and Professions
Code including failure to issue accurate itemized wage statements;
failure to pay overtime wages; failure to pay compensation due upon
discharge from employment; failure to reimburse business expenses;
and unfair, unlawful, or fraudulent business practices.
Paychex North America, Inc. is a provider of payroll and human
resource products and services located in New York. [BN]
The Defendant is represented by:
Michael A. Hood, Esq.
Nolan S. McCready, Esq.
JACKSON LEWIS P.C.
200 Spectrum Center Drive, Suite 500
Irvine, CA 92618
Telephone: (949) 885-1360
Facsimile: (949) 885-1380
E-mail: Michael.Hood@jacksonlewis.com
Nolan.McCready@jacksonlewis.com
- and –
Scott P. Jang, Esq.
JACKSON LEWIS P.C.
50 California Street, 9th Floor
San Francisco, CA 94111
Telephone: (415) 394-9400
Facsimile: (415) 394-9401
E-mail: Scott.Jang@jacksonlewis.com
PEL-STATE BULK PLANT: Collins FLSA Suit Seeks to Certify Class
--------------------------------------------------------------
In the class action lawsuit captioned as CALVIN COLLINS and ZACHARY
HALL, Each Individually and on Behalf of All Others Similarly
Situated, v. PEL-STATE BULK PLANT, LLC, and WILLIAM H. BROYLES, II,
Case No. 7:20-cv-00083-DC-RCG (W.D. Tex.), the Plaintiffs ask the
Court to enter an order certifying the following collective:
"All hourly Driver/Operators and Fuel Technicians employed
since March 27, 2017."
The Plaintiffs and members of the putative collective action class
were employed by Defendants on or after March 27, 2017. The
Defendants uniformly violated the Fair Labor Standards Act (FLSA)
with respect to putative plaintiffs. The Plaintiffs and putative
plaintiffs were not properly compensated for all of their overtime
work.
Pel-State is a motor carrier.
A copy of the the Plaintiffs' motion to certify class dated July
23, 2021 is available from PacerMonitor.com at
https://bit.ly/3lj8YcQ at no extra charge.[CC]
The Plaintiffs are represented by:
Josh Sanford, Esq.
SANFORD LAW FIRM, PLLC
Kirkpatrick Plaza
10800 Financial Centre Pkwy, Suite 510
Little Rock, AR 72211
Telephone: (501) 221-0088
Facsimile: (888) 787-2040
E-mail: josh@sanfordlawfirm.com
The Defendant is represented by:
John A. Ferguson, Jr., Esq.
SCHMOYER REINHARD LLP
8000 IH 10 West, Suite 1600
San Antonio, TX 78230
Telephone: (210) 447-8033
Facsimile: (210) 447-8036
E-mail: jferguson@sr-llp.com
PORTFOLIO RECOVERY: Uses Third Party to Collect Debts, Barnes Says
------------------------------------------------------------------
ELIZABETH BARNES, ROBERT HODGE, JACKIE SPEARS F/K/A JACKIE
HOLBROOK, and JOHN WRIGHT, on behalf of themselves and all others
similarly situated, Plaintiffs v. PORTFOLIO RECOVERY ASSOCIATES,
LLC, Defendant, Case No. 1:21-cv-02095-TWP-DLP (S.D. Ind., July 23,
2021) is a class action against the Defendant for violation of the
Fair Debt Collection Practices Act.
According to the complaint, the Defendant caused a written
communication to be sent to the Plaintiffs to collect their alleged
debts to Capital One Bank (USA) N.A. The Defendant communicated
with CompuMail, Inc., a third-party mail vendor, in connection with
the collection of the debts. The third-party mail vendor printed
the collection letters and sent to the Plaintiffs. The Plaintiffs
did not provide the Defendant prior express consent to communicate,
in connection with the collection of the debts, with any
third-party mail vendor. The Defendant's communications with
CompuMail invaded the Plaintiffs' privacy and intruded upon their
seclusion by sharing private debt collection information with a
third-party that was not entitled to receive such information, says
the suit.
Portfolio Recovery Associates, LLC is a debt collection agency with
its principal place of business located at 120 Corporate Boulevard,
Norfolk, Virginia. [BN]
The Plaintiffs are represented by:
Richard J. Shea, Esq.
SAWIN & SHEA, LLC
6100 N. Keystone Avenue, Suite 620
Indianapolis, IN 46220
Telephone: (317) 255-2600
Facsimile: (317) 255-2905
E-mail: rshea@sawinlaw.com
PREMIUM RETAIL: Fraga Suit Seeks to Certify FLSA Collective
-----------------------------------------------------------
In the class action lawsuit captioned as SARA FRAGA, individually
and on behalf of all persons similarly situated, v. PREMIUM RETAIL
SERVICES, INC., Case No. 1:21-cv-10751-WGY (D. Mass.), the
Plaintiff asks the Court to enter an order conditionally certifying
a Fair Labor Standards Act (FLSA) collective composed of, and
facilitating the sending of written notices to:
"all current and former non-exempt employees of Premium
Retail Services, Inc., who were paid to perform merchandising
services in the United States between [insert date three
years prior to the date that the Court issues an Order
granting Conditional Certification] and the present (the
"FLSA Collective")."
Premium Retail provides retail merchandising, strategy, sales
support and brand advocacy solutions across North America.
A copy of the the Plaintiff's motion to certify class dated July
23, 2021 is available from PacerMonitor.com at
https://bit.ly/2Vq2JsN at no extra charge.[CC]
PROFESSIONAL TRANSPORT: Smith's Individual Action Can Move Ahead
----------------------------------------------------------------
In the case, PEGGY JO SMITH, individually and on behalf of
similarly situated individuals, Plaintiff-Appellant v. PROFESSIONAL
TRANSPORTATION, INC., and RONALD D. ROMAIN, Defendants-Appellees,
Case No. 20-2046 (7th Cir.), the U.S. Court of Appeals for the
Seventh Circuit vacates the district court's refusal to allow
Smith's individual action to move ahead.
Between November 2011 and August 2013, Peggy Jo Smith worked for
Professional Transportation Inc. (PTI), a company that transports
railroad crews to and from their places of work. Believing that
her position was misclassified for purposes of the Fair Labor
Standards Act and that she was not receiving proper overtime wages,
she filed this action "individually and on behalf of similarly
situated individuals" on Dec. 26, 2013.
The Act permits both individual actions and collective proceedings.
Unlike the better-known class action under Federal Rule of Civil
Procedure 23(b)(3), however, which includes everyone in the class
who does not opt out, the FLSA collective action requires group
members affirmatively to opt into the collective action in order to
participate.
At first, it seemed that Smith's effort to serve as a named
representative of a collective action under the Act was proceeding
well. Her initial filing was well within the two years that the
Act provides for the commencement of litigation. The parties filed
a joint case management plan on March 25, 2014, three months after
the case was filed, and the district court promptly approved it.
Part IV of that plan addressed "class certification matters." And
the district court's docket sheet shows numerous putative group
members consenting to opt into the litigation.
The case went off the rails, however, when PTI pointed out that
Smith herself had not filed anything in addition to her complaint
indicating that she herself wished to participate in the group
action. Relying on the Seventh Circuit's decision in Harkins v.
Riverboat Services, Inc., 385 F.3d 1099 (7th Cir. 2004), the
district court deemed this a fatal flaw for the collective action.
It held that Smith's group action could not "commence" until such a
consent was filed. Moreover, by the time the court reached this
conclusion, both the two-year and the three-year statutes of
limitations had run. The court then concluded that Smith's
complaint also failed to allege timely individual claims, and on
that basis it dismissed the case in its entirety.
Aside from some stray references to the underlying putative
collective action, Smith's appeal contests only the district
court's refusal to allow her individual action to move ahead. The
Seventh Circuit thus does not have before it the difficult question
whether every member of a collective action, including the named
plaintiff(s), must file a separate document entitled a Consent, or
if it is enough for the named plaintiff(s) to indicate in the
complaint that they affirmatively wish to proceed in that
capacity.
The Seventh Circuit turns to the heart of the present case: Whether
the district court erred by dismissing Smith's individual claim
along with her collective claims. The question is whether section
216(b) authorizes "dual capacity" suits, in which a plaintiff sues
simultaneously as a group representative and as an individual. The
answer is yes, for a number of reasons.
The Seventh Circuit concludes that the second amended complaint
contained sufficient factual allegations related to her individual
claims to put PTI on notice that she intended to sue it both in an
individual and a representative capacity. She explicitly stated as
much in the caption of both her original complaint and in her
second amended complaint, which was the operative pleading. In
addition, the operative complaint and later developments in the
case indicate that PTI was under no illusions about Smith's
intentions to bring individual claims. Regardless of what happens
to the collective action, she is entitled to proceed individually.
Accordingly, the district court erred by refusing to allow Smith to
proceed on her individual claims.
For these reasons, the Seventh Circuit vacates the district court's
summary judgment order in part and remands with instructions to
permit Smith's individual claims to proceed. Each side is to bear
its own costs on appeal.
A full-text copy of the Court's July 16, 2021 Order is available at
https://tinyurl.com/4bbptbs9 from Leagle.com.
R&R EXPRESS: Logistics Coordinator Classes Certified in Rood Suit
-----------------------------------------------------------------
In the case, BEN ROOD, Plaintiff, v. R&R EXPRESS, INC., Defendant,
Case No. 2:17-cv-1223-NR (W.D. Pa.), Judge J. Nicholas Ranjan of
the U.S. District Court for the Western District of Pennsylvania
granted Mr. Rood's Motion for Rule 23 Class Certification and Final
Certification under the Fair Labor Standards Act.
In this wage-and-hour action, Plaintiff Rood alleges that Defendant
R&R Express failed to pay overtime wages to him and other similarly
situated employees in violation of the Fair Labor Standards Act and
the Pennsylvania Minimum Wage Act.
Mr. Rood worked for R&R Express as a Sales Representative, a
position that is also internally known at R&R Express as a
"Logistics Coordinator." The overarching role of Logistics
Coordinators is to sell R&R Express' services, which include
trucking, brokerage, and supply-chain services. Mr. Rood contends
that R&R Express used company-wide policies to compensate its
Logistics Coordinators, and that no matter if a Logistics
Coordinator was being paid hourly, weekly, or straight commissions,
R&R Express did not pay them overtime for hours worked over 40 in a
single workweek for the period between Sept. 18, 2014, through Dec.
31, 2017. As a result, Mr. Rood filed the action.
The Court previously granted conditional certification of a
collective action under the FLSA. After receiving notice of this
action, two more Logistics Coordinators, Jonathan Zehe and David
Miller, opted into the collective. Mr. Rood now moves for class
certification under Federal Rule of Civil Procedure 23 and final
certification under the FLSA.
Analysis
I. The Court certifies the proposed class under Rule 23.
Mr. Rood seeks to certify the following class: All individuals who
at any time during the period between Sept. 19, 2014 (i.e., three
years before the filing of the original complaint in the action)
and Dec. 31, 2107, worked as a Sales Representative (also known as
Logistics Coordinator) for Defendant R&R Express, Inc.
Of the six requirements, R&R Express only contests numerosity.
After careful consideration and the appropriate rigorous analysis,
Judge Ranjan finds that all the requirements for class
certification have been met.
First, Judge Ranjan agrees that the case does not present
geographically diverse putative class members nor are there any
other future claimants to identify. Mr. Rood has offered no
evidence about the putative class members' financial resources, so
the Court cannot determine that factor. But all these factors
carry less weight than the efficiency achieved by class treatment,
both in terms of the Court's and the parties' expenditure of
resources, and the fact that R&R Express has actively discouraged
class members from joining this action. As a result, the Judge
finds that the numerosity requirement has been met.
Second, the central legal question in the case -- whether R&R
Express can establish that Mr. Rood and the other Logistics
Coordinators were exempt "administrative" employees under the FLSA
and PMWA -- is shared by all the class members. There is also
commonality in the key facts that bear on this shared legal
question. As R&R Express's managers have conceded, the duties of
the Logistics Coordinator position were defined and uniform across
all class member who held that position. The Logistics
Coordinators signed the same standard employment agreement, had the
same job title, and performed essentially the same job duties. And
perhaps most importantly, R&R Express applied uniform compensation
policies to its Logistics Coordinators during the class period.
Thus, commonality is satisfied.
Third, Mr. Rood's claims are typical of the class' claims. His
legal theory is shared by all the class members. He worked as a
Logistics Coordinator, and in that position, had the same job
duties as all the other Logistics Coordinators employed by R&R
Express. The compensation policies that applied to Mr. Rood are
the same ones that applied to the other Logistics Coordinators.
Mr. Rood alleges that, as a matter of common practice, R&R Express
did not pay overtime wages for time worked over 40 hours in a week.
He does not appear to be subject to a defense broadly inapplicable
to other members of the class. Finally, his "interests are
sufficiently aligned with that of the class, because he and the
class seek wage and hour protections" under federal and state law,
"and there is no indication that his claims are in any way
antagonistic to other members of the class."
Fourth, the counsel for Mr. Rood have submitted materials detailing
their litigation experience, and specifically their work in class
and collective actions to recover unpaid wages. The counsel can
adequately prosecute this litigation. Moreover, Mr. Rood and the
members of the class "are all pursuing damages under the same
statutes and the same theories of liability, and the differences
among them will not, at least as things presently stand, pit one
group's interests against another." There is thus no fundamental
intra-class conflict to prevent class certification, nor is there
any derivative conflict of interest that would prevent counsel from
fairly and adequately representing the interests of the entire
class." Hence, the adequacy requirement is satisfied.
Fifth, Mr. Rood alleges a common course of conduct by R&R Express
-- namely, not properly paying Logistics Coordinators for overtime
under the company's uniform compensation policies. The central
factual and legal questions driving the resolution of the case are
all shared by the class. It is thus unlikely that there will be
significant differences between individual claimants' cases, and
liability will depend on the conduct of R&R Express, and not the
conduct of individual class members.
Finally, Judge Ranjan finds that the superiority requirement is
satisfied. He says there is no indication that any other class
members want to individually control the litigation. Because R&R
Express changed its compensation policies in response to the
litigation, the case is the only one pending against R&R Express
for its "pre-remediation" compensation policies. Thus, a
class-wide resolution would provide finality to R&R's liability
exposure. Finally, the Judge does not foresee any difficulties in
managing this class action through its conclusion. Indeed, as Mr.
Rood points out, class trials in wage-and-hour actions like this
one are common, and the procedures for administering such trials
are well established.
II. The Court grants final certification of the FLSA collective.
Along with seeking to certify a class under Rule 23, Mr. Rood also
asks the Court to "finally" certify a collective action under the
FLSA. While "some of the factors and evidence necessary to satisfy
the prerequisites of Rule 23 and Section 216(b) of the FLSA may
overlap," the two standards aren't coextensive.
Judge Ranjan holds that Mr. Rood has established that the members
of the collective are similarly situated for all the same reasons
discussed in the predominance section. Moreover, he notes that
neither R&R Express nor potentially eligible members of the
collective object to final certification, which weighs in favor of
granting it. The Judge therefore grants final certification of the
FLSA collective.
Disposition
In light of the foregoing, Judge Ranjan granted Mr. Rood's Motion
for Rule 23 Class Certification and Final Certification under the
Fair Labor Standards Act.
The Judge certified the following class under Federal Rules of
Civil Procedure 23(a) and 23(b)(3): All individuals who at any time
during the period between Sept. 19, 2014 (i.e., three years before
the filing of the original complaint in the action) and Dec. 31,
2017, worked as a Sales Representative (also known as Logistics
Coordinator) for Defendant R&R Express, Inc.
The Judge appointed (i) Ben Rood to serve as Class the
Representative, and (ii) Joseph H. Chivers of the Employment Rights
Group, LLC (100 First Avenue, Suite 650, Pittsburgh, PA 15222), and
John R. Linkosky, of John Linkosky & Associates, as the Class
Counsel for the Rule 23 class.
The Judge certified the following FLSA collective: All Logistics
Coordinators employed by R&R Express, Inc. from Sept. 19, 2014,
through Dec. 31, 2017.
The parties will meet and confer about the form and content of the
class notice. If they reach an agreement, they must file a joint
motion for approval of their proposed class notice by no later than
July 30, 2021. If the parties cannot reach an agreement, they must
file a joint status report by July 30, 2021, outlining the parties'
respective positions and highlighting any disagreements.
Mr. Rood's Motion to Strike Brief in Opposition is denied as moot.
A full-text copy of the Court's July 16, 2021 Memorandum Order is
available at https://tinyurl.com/29w6w7sm from Leagle.com.
RAYTHEON TECHNOLOGIES: Darnis Putative Class Action Underway
------------------------------------------------------------
Raytheon Technologies Corporation said in its Form 10-Q Report
filed with the Securities and Exchange Commission on July 27, 2021,
for the quarterly period ended June 30, 2021, that the company
continues to defend a purported class action suit entitled, Geraud
Darnis, et al. v. Raytheon Technologies Corporation, et al.
on August 12, 2020, several former employees of United Technologies
Corporation (UTC) or its subsidiaries filed a putative class action
complaint in the United States District Court for the District of
Connecticut against the Company, Otis, Carrier, the former members
of the UTC Board of Directors, and the members of the Carrier and
Otis Boards of Directors (Geraud Darnis, et al. v. Raytheon
Technologies Corporation, et al.).
The complaint challenges the method by which UTC equity awards were
converted to Company, Otis, and Carrier equity awards following the
separation of UTC into three independent, publicly-traded companies
on April 3, 2020.
The complaint claims that the defendants are liable for breach of
certain equity compensation plans and also asserts claims under
certain provisions of the Employee Retirement Income Security Act
of 1974 (ERISA). Plaintiffs seek money damages, attorneys' fees and
other relief.
Raytheon said, "We believe that the Company has meritorious
defenses to these claims. At this time, the Company is unable to
predict the outcome, or the possible range of loss, if any, which
could result from this action."
No further updates were provided in the Company's SEC report.
Raytheon Technologies Corporation is a global premier systems
provider of high technology products and services to the aerospace
and defense industries. The company is based in Waltham,
Massachusetts.
RAYTHEON TECHNOLOGIES: Defends Putative Securities Class Suit in AZ
-------------------------------------------------------------------
Raytheon Technologies Corporation said in its Form 10-Q Report
filed with the Securities and Exchange Commission on July 27, 2021,
for the quarterly period ended June 30, 2021, that the company
continues to defend a putative securities class action lawsuit
filed in the United States District Court for the District of
Arizona.
On October 8, 2020, the Company received a criminal subpoena from
the Department of Justice (DOJ) seeking information and documents
in connection with an investigation relating to financial
accounting, internal controls over financial reporting, and cost
reporting regarding Raytheon Company's Missiles & Defense business
(RMD) since 2009.
The investigation includes potential civil defective pricing claims
for three RMD contracts entered into between 2011 and 2013. As part
of the same investigation, on March 24, 2021, the Company received
a second criminal subpoena from the DOJ seeking documents relating
to a different RMD contract entered into in 2017.
The company is cooperating fully with the DOJ's ongoing
investigation. Although the company believes it has defenses to the
potential claims, the Company has determined that there is a
meaningful risk of civil liability for damages, interest and
potential penalties. At this time, the Company is unable to predict
either the outcome of the criminal investigation or the outcome of
any potential civil claims based on facts revealed in or related
to, the investigation.
Four shareholder lawsuits were filed against the Company after the
DOJ investigation was first disclosed. A putative securities class
action lawsuit was filed in the United States District Court for
the District of Arizona against the Company and certain of its
executives alleging that the defendants violated federal securities
laws by making material misstatements in regulatory filings
regarding internal controls over financial reporting in RMD.
Three shareholder derivative lawsuits were filed in the United
States District Court for the District of Delaware against the
former Raytheon Company Board of Directors, the Company and certain
of its executives, each alleging that defendants violated federal
securities laws and breached their fiduciary duties by engaging in
improper accounting practices, failing to implement sufficient
internal financial and compliance controls, and making a series of
false and misleading statements in regulatory filings.
Raytheon said, "We believe that each of these lawsuits lacks
merit."
Raytheon Technologies Corporation is a global premier systems
provider of high technology products and services to the aerospace
and defense industries. The company is based in Waltham,
Massachusetts.
RENOVACARE INC: Solakian Files Securities Suit in N.J.
------------------------------------------------------
MICHAEL SOLAKIAN, Individually and On Behalf of All Others
Similarly Situated v. RENOVACARE, INC., HARMEL RAYAT, and THOMAS
BOLD, Case No. 2:21-cv-13930 (D.N.J., July 21, 2021) is a federal
securities class action on behalf of persons and entities that
purchased or otherwise acquired RenovaCare securities between
August 14, 2017 and May 28, 2021, inclusive (Class Period).
Plaintiff pursues claims against the Defendants under the
Securities Exchange Act of 1934.
The complaint 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: (i) at the direction of
Rayat, RenovaCare engaged in a promotional campaign to issue
misleading statements to artificially inflate the Company's stock
price; (ii) when the OTC Markets inquired, RenovaCare and Rayat
issued a materially false and misleading press release claiming
that no director, officer, or controlling shareholder had any
involvement in the purported third party's promotional materials;
(iii) as a result of the foregoing, the Company's disclosure
controls and procedures were defective; and (iv) 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.
As a result of Defendants' wrongful acts and omissions, and the
precipitous decline in the market value of the Company's
securities, Plaintiff and other Class members have suffered
significant losses and damages, says the complaint.
Defendants Rayat and Bold are corporate officers of Defendant
RenovaCare, a development stage company that has not generated any
revenue since its inception and has no commercialized products.
[BN]
The Plaintiff is represented by:
Thomas H. Przybylowski, Esq.
Jeremy A. Lieberman, Esq.
J. Alexander Hood II, Esq.
POMERANTZ LLP
600 Third Avenue, 20th Floor
New York, NY 10016
Telephone: (212) 661-1100
Facsimile: (212) 661-8665
tprzybylowski@pomlaw.com
jalieberman@pomlaw.com
ahood@pomlaw.com
RENOWN HEALTH: Nevett FLSA Class Suit Removed to D. Nevada
----------------------------------------------------------
The case styled EMILY NEVETT, individually and on behalf of all
others similarly situated v. RENOWN HEALTH, and DOES 1 through 50,
inclusive, Case No. CV20-00583, was removed from the Second
Judicial District Court in and for the County of Washoe, State of
Nevada, to the U.S. District Court for the District of Nevada on
July 23, 2021.
The Clerk of Court for the District of Nevada assigned Case No.
2:21-cv-01384 to the proceeding.
The case arises from the Defendant's alleged violation of the Fair
Labor Standards Act by failing to pay overtime and failing to
timely pay all wages due and owing.
Renown Health is a not-for-profit healthcare company in Reno,
Nevada. [BN]
The Defendant is represented by:
Montgomery Y. Paek, Esq.
Ethan D. Thomas, Esq.
Diana G. Dickinson, Esq.
Emil S. Kim, Esq.
LITTLER MENDELSON P.C.
3960 Howard Hughes Parkway, Suite 300
Las Vegas, NV 89169-5937
Telephone: (702) 862-8800
Facsimile: (702) 862-8811
E-mail: mpaek@littler.com
edthomas@littler.com
ddickinson@littler.com
ekim@littler.com
RICH PRODUCTS: Chairez Wage-and-Hour Suit Goes to C.D. California
-----------------------------------------------------------------
The case styled CRISTINA CHAIREZ, individually and on behalf of all
others similarly situated v. RICH PRODUCTS CORPORATION, RICH
HOLDINGS, INC., and DOES 1 -50, inclusive, Case No. 21STCV1822, was
removed from the Superior Court of the State of California, County
of Los Angeles, to the U.S. District Court for the Central District
of California on July 23, 2021.
The Clerk of Court for the Central District of California assigned
Case No. 2:21-cv-05977 to the proceeding.
The case arises from the Defendants' alleged violations of the
California Labor Code and the California Business and Professions
Code including failure to provide rest breaks, failure to provide
meal breaks, failure to pay wages, including overtime, failure to
reimburse business expenses, failure to timely pay all wages owed
upon separation and failure to provide accurate wage statements.
Rich Products Corporation is a multinational food products
corporation headquartered in Buffalo, New York.
Rich Holdings, Inc. is a frozen baked food wholesaler based in
Buffalo, New York. [BN]
The Defendant is represented by:
Monte K. Grix, Esq.
Ferry Lopez, Esq.
HIRSCHFELD KRAEMER LLP
233 Wilshire Boulevard, Suite 600
Santa Monica, CA 90401
Telephone: (310) 255-0705
Facsimile: (310) 255-0986
E-mail: mgrix@hkemploymentlaw.com
flopez@hkemploymentlaw.com
RISK BASED SECURITY: Class Cert. Bid Must be Filed by Jan. 14, 2022
-------------------------------------------------------------------
In the class action lawsuit captioned as EDWARD J. KOELLER v. RISK
BASED SECURITY, INC., Case No. 4:21-cv-00540-HEA (E.D. Mo.), the
Hon. Judge Henry Ddward Autrey entered an order and scheduling plan
as follows:
1. This case has been assigned to Track 2 (Standard).
2. All motions for joinder of additional parties or amendment
of pleadings were made by August 27, 2021.
3. Disclosure shall proceed in the following manner:
-- Plaintiff shall disclose all class certification expert
witnesses and shall provide the reports required no
later than October 29, 2021.
-- Defendant shall disclose all class certification expert
witnesses and shall provide the reports required no
later than December 10, 2021.
4. Any motion for class certification must be filed no later
than January 14, 2022. Opposition briefs shall be filed no
later than February 4, 2022, and any reply brief may be
filed no later than February 11, 2022.
5. An updated Joint Proposed Scheduling Plan is to be
submitted by the parties within 10 days of the Court's
certification ruling. Failure to comply with any part of
this order may result in the imposition of sanctions.
A copy of the Court's order dated July 23, 2021 is available from
PacerMonitor.com at https://bit.ly/3rMuXu6 at no extra charge.[CC]
RYANAIR HOLDINGS: Birmingham Funds' Suit Ongoing
------------------------------------------------
Ryanair Holdings plc said in its Form 20-F report filed with the
U.S. Securities and Exchange Commission on July 27, 2021, for the
fiscal year ended March 31, 2021, that the company continues to
defend a putative securities class action suit headed by the City
of Birmingham Retirement and Relief System and City of Birmingham
Firemen's and Policemen's Supplemental Pension System.
In November 2018, a putative securities class action complaint was
filed against the Company and Mr. Michael O'Leary in the United
States District Court for the Southern District of New York.
The District Court appointed lead plaintiffs, the City of
Birmingham Retirement and Relief System and City of Birmingham
Firemen's and Policemen's Supplemental Pension System (the
"Birmingham Funds"), in January 2019.
The Birmingham Funds filed an amended complaint in April 2019 that
purports to be on behalf of purchasers of Ryanair American
Depositary Shares ("ADSs") between May 30, 2017 and September 28,
2018. The amended complaint alleges, among other things, that in
filings with the SEC, investor calls, interviews, and other
communications, the Company and/or Mr. O'Leary made materially
false and misleading statements and omissions regarding employment
and financial data, employee negotiation processes, the September
2017 pilot rostering management issue, and the likelihood and
financial impact of unionization, which allegedly artificially
inflated the market value of the Company's securities.
In June 2020, the District Court issued a ruling dismissing in part
the Birmingham Funds' claims, including claims regarding employment
and financial data, employee negotiation processes, the September
2017 pilot rostering management issue, and the financial impact of
unionization. The Birmingham Funds' claims regarding the likelihood
of unionization were not dismissed.
In March 2021, the Birmingham Funds issued a motion to amend their
claim seeking, among other things, to re-introduce prior dismissed
claims.
The Company and Mr. O'Leary filed an opposition to the motion to
amend in May 2021.
Ryanair Holdings plc is a holding company for Ryanair Limited.
Ryanair operates an ultra-low fare, scheduled-passenger airline
serving short-haul, point-to-point routes between Ireland, the
United Kingdom, Continental Europe, Morocco and Israel. The company
is based in Dublin, Ireland.
SADDLE PEAK: Clark Seeks OT Pay for Employees Under FLSA, AMWA
--------------------------------------------------------------
PATRICIA CLARK, individually and on behalf of all others similarly
situated v. SADDLE PEAK, LLC, Case No. 4:21-cv-00668-JM (E.D. Ark.,
July 27, 2021) is a class action and a collective action brought by
the Plaintiff Clark individually and on behalf of all other
hourly-paid employees employed by Defendant at any time within a
three-year period preceding the filing of this Complaint.
The Plaintiff brings this action under the Fair Labor Standards Act
(FLSA) and the Arkansas Minimum Wage Act (AMWA), for declaratory
judgment, monetary damages, liquidated damages, prejudgment
interest, and costs, including reasonable attorneys' fees, as a
result of Defendant's failure to pay Plaintiff and other
hourly-paid employees lawful overtime compensation for hours worked
in excess of 40 hours per week.
Saddle Peak LLC was founded in 2008. The company's line of business
includes the retail sale of prepared foods and drinks for
on-premise consumption.[BN]
The Plaintiff is represented by:
Chris Burks, Esq.
WH LAW | WE HELP
Riverfront Pl. Suite 745
North Little Rock, AR 72114
Telephone: (501) 891-6000
E-mail: chris@wh.law
SEI INVESTMENTS: Suits Over SPTC Services to Stanford Trust Ongoing
-------------------------------------------------------------------
SEI Investments Company said in its Form 10-Q Report filed with the
Securities and Exchange Commission on July 26, 2021, for the
quarterly period ended June 30, 2021, that the company and SEI
Private Trust Company (SPTC) continue to defend several class
action suits related to SPTC's services to Stanford Trust Company.
SEI has been named in seven lawsuits filed in Louisiana courts;
four of the cases also name SEI Private Trust Company (SPTC) as a
defendant. The underlying allegations in all actions relate to the
purported role of SPTC in providing back-office services to
Stanford Trust Company.
The complaints allege that SEI and SPTC participated in some manner
in the sale of "certificates of deposit" issued by Stanford
International Bank so as to be a "seller" of the certificates of
deposit for purposes of primary liability under the Louisiana
Securities Law or so as to be secondarily liable under that statute
for sales of certificates of deposit made by Stanford Trust
Company.
Two of the actions also include claims for violations of the
Louisiana Racketeering Act and possibly conspiracy, and a third
also asserts claims of negligence, breach of contract, breach of
fiduciary duty, violations of the uniform fiduciaries law,
negligent misrepresentation, detrimental reliance, violations of
the Louisiana Racketeering Act, and conspiracy.
The procedural status of the seven cases varies.
The Lillie case, filed originally in the 19th Judicial District
Court for the Parish of East Baton Rouge, was brought as a class
action. A group of plaintiffs who opted out of the Lillie class
filed a complaint against SEI and SPTC in the United States
District Court in the Middle District of Louisiana, alleging claims
essentially the same as those in Lillie. In both cases, as a result
of the proceedings in the Northern District of Texas, only the
plaintiffs' secondary liability claims under Section 714(B) of the
Louisiana Securities Law remain.
On January 31, 2019, the Judicial Panel on Multidistrict Litigation
remanded the Lillie and Ahders proceedings to the Middle District
of Louisiana.
With respect to the Lillie proceeding, on July 9, 2019, the
District Court issued an order granting SEI's Summary Judgment
Motion to dismiss the remaining Section 714(B) claim and denying
Plaintiffs' Motion for Continuance of SEI and SPTC's Motion for
Summary Judgment pursuant to Rule 56(d).
On August 27, 2019, Plaintiffs-Appellants filed a Notice of Appeal
to the United States Court of Appeals for the Fifth Circuit of the
District Court's dismissal of the Lillie matter. On May 14, 2021,
the United States Court of Appeals for the Fifth Circuit
unanimously affirmed the District Court's order granting summary
judgment in favor SEI and the Insurer Defendants in the Lillie
matter.
With respect to the Ahders proceeding, on January 24, 2020, the
District Court issued an order granting SEI's Summary Judgment
Motion to dismiss the remaining Section 714(B) claim. On March 17,
2020, Plaintiffs-Appellants filed a Notice of Appeal to the United
States Court of Appeals for the Fifth Circuit of the District
Court's dismissal of the Ahders matter.
On December 3, 2020, the United States Court of Appeals for the
Fifth Circuit unanimously affirmed the District Court's order
granting summary judgment in favor of SEI and the Insurer
Defendants in the Adhers matter.
Another case, filed in the 23rd Judicial District Court for the
Parish of Ascension, also was removed to federal court and
transferred by the Judicial Panel on Multidistrict Litigation to
the Northern District of Texas and the Stanford Multidistrict
Litigation (MDL). The schedule for responding to that Complaint has
not yet been established.
Two additional cases remain in the Parish of East Baton Rouge.
Plaintiffs filed petitions in 2010 and have granted SEI and SPTC
indefinite extensions to respond. No material activity has taken
place since.
In two additional cases, filed in East Baton Rouge and brought by
the same counsel who filed the Lillie action, virtually all of the
litigation to date has involved motions practice and appellate
litigation regarding the existence of federal subject matter
jurisdiction under the federal Securities Litigation Uniform
Standards Act (SLUSA).
The matters were removed to the United States District Court for
the Northern District of Texas and consolidated. The court then
dismissed the action under SLUSA. The Court of Appeals for the
Fifth Circuit reversed that order, and the Supreme Court of the
United States affirmed the Court of Appeals judgment on February
26, 2014. The matters were remanded to state court and no material
activity has taken place since that date.
While the outcome of this litigation remains uncertain, SEI and
SPTC believe that they have valid defenses to plaintiffs' claims
and intend to defend the lawsuits vigorously.
Because of uncertainty in the make-up of the Lillie class, the
specific theories of liability that may survive a motion for
summary judgment or other dispositive motion, the relative lack of
discovery regarding damages, causation, mitigation and other
aspects that may ultimately bear upon loss, the Company is not
reasonably able to provide an estimate of loss, if any, with
respect to the foregoing lawsuits.
SEI Investments Company is a publicly owned asset management
holding company. Through its subsidiaries, the firm provides wealth
management, retirement and investment solutions, asset management,
asset administration, investment processing outsourcing solutions,
financial services, and investment advisory services to its
clients. SEI Investments Company was founded in 1968 and is based
in Oaks, Pennsylvania.
SNAP INC: Settlement in IPO Related Suit Granted Final Approval
---------------------------------------------------------------
Snap Inc. said in its Form 10-Q Report filed with the Securities
and Exchange Commission on July 23, 2021, for the quarterly period
ended June 30, 2021, that the federal court granted final approval
of the settlement and entered judgment while the state court
granted final approval of the settlement in March 2021 and entered
judgment in April 2021. in the class action suit related to the
company's initial public offering (IPO).
Beginning in May 2017, the company, certain of its officers and
directors, and the underwriters for its initial public offering
(IPO) were named as defendants in securities class actions
purportedly brought on behalf of purchasers of the company's Class
A common stock, alleging violation of securities laws that arose
following our IPO.
On January 17, 2020, the company reached a preliminary agreement to
settle the securities class actions. The preliminary settlement
agreement was signed in January 2020 and provided for a resolution
of all of the pending claims in the securities class actions for
$187.5 million.
In the fourth quarter of 2019, the company recorded legal expense,
net of amounts directly covered by insurance, of $100.0 million for
the expected settlement of the stockholder actions since the
company concluded the loss was probable and estimable. The amount
was recorded in general and administrative expense in our
consolidated statements of operations.
The settlement amount was paid into escrow in December 2020. In
March 2021, the federal court granted final approval of the
settlement and entered judgment while the state court granted final
approval of the settlement in March 2021 and entered judgment in
April 2021.
The settlement amount will be released from escrow as determined by
the plaintiffs' lawyers and the settlement administrator.
Snap Inc. operates as a camera company in the United States and
internationally. The company offers Snapchat, a camera application
that helps people to communicate through short videos and images.
The company was formerly known as Snapchat, Inc. and changed its
name to Snap Inc. in September 2016. Snap Inc. was founded in 2010
and is headquartered in Santa Monica, California.
STATE STREET: Gomes Putative Class Action Underway
--------------------------------------------------
State Street Corporation said in its Form 10-Q Report filed with
the Securities and Exchange Commission on July 23, 2021, for the
quarterly period ended June 30, 2021, that the company continues to
defend a purported class action suit entitled, Gomes, et al. v.
State Street Corp.
Eight participants in the company's Salary Savings Program filed a
purported class action complaint in May 2021 on behalf of
participants and beneficiaries who participated in the Program and
invested in the company's proprietary investment fund options
between May 2015 and the present.
The complaint names the Plan Sponsor as well as the committees
overseeing the Plan and their respective members as defendants, and
alleges breach of fiduciary duty and violations of other duties
owed to retirement plan participants under the Employee Retirement
Income and Security Act.
State Street said, "We and the other named defendants deny the
alleged claims and are proceeding with a defense of the matter."
State Street Corporation, through its subsidiaries, provides a
range of financial products and services to institutional investors
worldwide. State Street Corporation was founded in 1792 and is
headquartered in Boston, Massachusetts.
STATE STREET: Settlement Reached in Suit Over Invoicing Practices
-----------------------------------------------------------------
State Street Corporation said in its Form 10-Q Report filed with
the Securities and Exchange Commission on July 23, 2021, for the
quarterly period ended June 30, 2021, that company had agreed,
subject to court approval, to resolve the purported class action
suit related to the company's invoicing practices and pay a cost
that is within its established accruals for loss contingencies.
In March 2017, a purported class action was commenced against the
company alleging that its invoicing practices violated duties owed
to retirement plan customers under the Employee Retirement Income
Security Act.
The company had agreed, subject to court approval, to resolve this
matter and pay a cost that is within its established accruals for
loss contingencies.
In addition, the company had received a purported class action
demand letter alleging that its invoicing practices were unfair and
deceptive under Massachusetts law.
State Street said, "A class of customers, or particular customers,
may assert that we have not paid to them all amounts incorrectly
invoiced, and may seek double or treble damages under Massachusetts
law."
State Street Corporation, through its subsidiaries, provides a
range of financial products and services to institutional investors
worldwide. State Street Corporation was founded in 1792 and is
headquartered in Boston, Massachusetts.
TESLA INC: 9th Cir. Junks Plaintiffs' Request for Rehearing
------------------------------------------------------------
Tesla Inc. said in its Form 10-Q Report filed with the Securities
and Exchange Commission on July 27, 2021, for the quarterly period
ended June 30, 2021, that the Ninth Circuit denied plaintiffs'
request for a rehearing in the class action suit related to the
alleged false and misleading statements regarding Tesla's
preparedness to produce Model 3 vehicles.
On October 10, 2017, a purported stockholder class action was filed
in the U.S. District Court for the Northern District of California
against Tesla, two of its current officers and a former officer.
The complaint alleges violations of federal securities laws and
seeks unspecified compensatory damages and other relief on behalf
of a purported class of purchasers of Tesla securities from May 4,
2016 to October 6, 2017.
The lawsuit claims that Tesla supposedly made materially false and
misleading statements regarding Tesla's preparedness to produce
Model 3 vehicles.
Plaintiffs filed an amended complaint on March 23, 2018, and
defendants filed a motion to dismiss on May 25, 2018. The court
granted defendants' motion to dismiss with leave to amend.
Plaintiffs filed their amended complaint on September 28, 2018, and
defendants filed a motion to dismiss the amended complaint on
February 15, 2019. The hearing on the motion to dismiss was held on
March 22, 2019, and on March 25, 2019, the Court ruled in favor of
defendants and dismissed the complaint with prejudice.
On April 8, 2019, plaintiffs filed a notice of appeal to the U.S.
Court of Appeals for the Ninth Circuit and on July 17, 2019 filed
their opening brief.
The company filed its opposition on September 16, 2019, and
plaintiffs filed their reply on October 8, 2019. A hearing on the
appeal was held before a three-judge panel on April 30, 2020. On
January 26, 2021, the panel affirmed the District Court's dismissal
of the complaint with prejudice.
On March 5, 2021, the Ninth Circuit denied plaintiffs' request for
a rehearing before the full court, and a mandate issued on March
16, 2021.
On October 26, 2018, in a similar action, a purported stockholder
class action was filed in the Superior Court of California in Santa
Clara County against Tesla, Elon Musk and seven initial purchasers
in an offering of debt securities by Tesla in August 2017.
The complaint alleges misrepresentations made by Tesla regarding
the number of Model 3 vehicles Tesla expected to produce by the end
of 2017 in connection with such offering and seeks unspecified
compensatory damages and other relief on behalf of a purported
class of purchasers of Tesla securities in such offering. Tesla
thereafter removed the case to federal court.
On January 22, 2019, plaintiff abandoned its effort to proceed in
state court, instead filing an amended complaint against Tesla,
Elon Musk and seven initial purchasers in the debt offering before
the same judge in the U.S. District Court for the Northern District
of California who is hearing the above-referenced earlier-filed
federal case.
On February 5, 2019, the Court stayed this new case pending a
ruling on the motion to dismiss the complaint in the earlier-filed
federal case. After such earlier-filed federal case was dismissed,
defendants filed a motion on July 2, 2019 to dismiss this case as
well.
The case was then stayed pending a ruling from the Ninth Circuit on
the earlier-filed federal case, with an agreement that if
defendants prevailed on the appeal, plaintiffs would dismiss the
later-filed case.
Following the Ninth Circuit's affirmance discussed above, the
plaintiffs dismissed the later-filed case with prejudice on April
15, 2021.
Tesla Inc. designs, manufactures, and sells high-performance
electric vehicles and electric vehicle powertrain components. The
Company owns its sales and service network and sells electric
powertrain components to other automobile manufacturers. Tesla
serves customers worldwide. The company is based in Palo Alto,
California.
TESLA INC: Trial on Twitter Post Related Suit Set for May 2022
--------------------------------------------------------------
Tesla Inc. said in its Form 10-Q Report filed with the Securities
and Exchange Commission on July 27, 2021, for the quarterly period
ended June 30, 2021, that trial is set for May 2022, in the
consolidated class action suit related to Elon Musk's August 7,
2018 Twitter post that he was considering taking Tesla private.
Between August 10, 2018 and September 6, 2018, nine purported
stockholder class actions were filed against Tesla and Elon Musk in
connection with Mr. Elon Musk's August 7, 2018 Twitter post that he
was considering taking Tesla private.
All of the suits are now pending in the U.S. District Court for the
Northern District of California.
Although the complaints vary in certain respects, they each purport
to assert claims for violations of federal securities laws related
to Mr. Musk's statement and seek unspecified compensatory damages
and other relief on behalf of a purported class of purchasers of
Tesla's securities.
Plaintiffs filed their consolidated complaint on January 16, 2019
and added as defendants the members of Tesla's board of directors.
The now-consolidated purported stockholder class action was stayed
while the issue of selection of lead counsel was briefed and argued
before the Ninth Circuit.
The Ninth Circuit ruled regarding lead counsel. Defendants filed a
motion to dismiss the complaint on November 22, 2019. The hearing
on the motion was held on March 6, 2020. On April 15, 2020, the
Court denied defendants' motion to dismiss.
The parties stipulated to certification of a class of stockholders,
which the court granted on November 25, 2020.
Trial is set for May 2022.
No further updates were provided in the Company's SEC report.
Tesla Inc. designs, manufactures, and sells high-performance
electric vehicles and electric vehicle powertrain components. The
Company owns its sales and service network and sells electric
powertrain components to other automobile manufacturers. Tesla
serves customers worldwide. The company is based in Palo Alto,
California.
TRINET GROUP: 401(k) Plan-Related Class Suit Underway
-----------------------------------------------------
TriNet Group, Inc. said in its Form 10-Q Report filed with the
Securities and Exchange Commission on July 26, 2021, for the
quarterly period ended June 30, 2021, that the company continues to
defend a class action suit related to the TriNet 401(k) Plan and
the TriNet Select 401(k) Plan.
On September 29, 2020, a class action was filed in the United
States District Court for the Middle District of Florida against
the directors of certain TriNet subsidiaries and other TriNet
employees on behalf of participants in two retirement plans
available to TriNet's eligible worksite employees, the TriNet
401(k) Plan and the TriNet Select 401(k) Plan.
The complaint is similar to claims recently brought against a
number of employers including Professional Employer Organizations
(PEOs) and generally alleges that the defendants violated certain
fiduciary obligations to Plan participants under the Employee
Retirement Income Security Act of 1974 with respect to overseeing
plan investment and recordkeeping fees.
TriNet said "These claims are in the early stages, and we are
unable to reasonably estimate any possible loss, or range of loss,
with respect to this matter. We believe the claims are without
merit."
TriNet Group, Inc. provides human resources solutions for small and
midsize businesses in the United States and Canada. TriNet Group,
Inc. was founded in 1988 and is headquartered in Dublin,
California.
TWITTER INC: Class Suit Over User Settings Under Appeal in 9th Cir.
-------------------------------------------------------------------
Twitter, Inc. said in its Form 10-Q Report filed with the
Securities and Exchange Commission on July 27, 2021, for the
quarterly period ended June 30, 2021, that the putative class
action suit related to user settings is currently on appeal to the
United States Court of Appeal for the Ninth Circuit.
Beginning in October 2019, putative class actions were filed in the
U.S. District Court for the Northern District of California against
the Company and certain of the Company's officers alleging
violations of securities laws in connection with the Company's
announcements that it had discovered and taken steps to remediate
issues related to certain user settings designed to target
advertising that were not working as expected and seeking
unspecified damages.
The Company disputes the claims and intends to defend the lawsuit
vigorously. In December 2020, the district court dismissed the
plaintiffs' claims.
The case is currently on appeal to the United States Court of
Appeal for the Ninth Circuit.
No further updates were provided in the Company's SEC report.
Twitter, Inc. operates as a platform for public self-expression and
conversation in real-time. The company offers various products and
services, including Twitter that allows users to consume, create,
distribute, and discover content; and Periscope, a mobile
application that enables user to broadcast and watch video live
with others. Twitter, Inc. was founded in 2006 and is headquartered
in San Francisco, California.
TWITTER INC: Trial in California Consolidated Suit Set for Sept. 20
-------------------------------------------------------------------
Twitter, Inc. said in its Form 10-Q Report filed with the
Securities and Exchange Commission on July 27, 2021, for the
quarterly period ended June 30, 2021, that trial in the
consolidated shareholder class action is scheduled on September 20,
2021.
Beginning in September 2016, multiple putative class actions and
derivative actions were filed in state and federal courts in the
United States against the Company and the Company's directors
and/or certain former officers alleging that false and misleading
statements, made in 2015, are in violation of securities laws and
breached fiduciary duty.
The putative class actions were consolidated in the U.S. District
Court for the Northern District of California. On October 16, 2017,
the court granted in part and denied in part the Company's motion
to dismiss.
On July 17, 2018, the court granted plaintiffs' motion for class
certification in the consolidated securities action. In January
2021, the Company entered into a binding agreement to settle the
pending shareholder derivative lawsuits.
The proposed settlement resolves all claims asserted against the
Company and the other named defendants in the derivative lawsuits
without any liability or wrongdoing attributed to them personally
or the Company.
Under the terms of the proposed settlement, the Company's board of
directors will adopt and implement certain corporate governance
modifications.
In addition, the Company will receive $38.0 million of insurance
proceeds to be used for general corporate purposes. The settlement
will not require the Company to make any payment, aside from
covering certain administrative costs related to the settlement.
The settlement agreement is subject to final approval by the Court
of Chancery of the State of Delaware, which is scheduled for July
27, 2021. The shareholder class action remains pending and is
scheduled for trial on September 20, 2021.
No further updates were provided in the Company's SEC report.
Twitter, Inc. operates as a platform for public self-expression and
conversation in real-time. The company offers various products and
services, including Twitter that allows users to consume, create,
distribute, and discover content; and Periscope, a mobile
application that enables user to broadcast and watch video live
with others. Twitter, Inc. was founded in 2006 and is headquartered
in San Francisco, California.
UNITED COLLECTION: Nelson FDCPA Suit Removed to N.D. Illinois
-------------------------------------------------------------
The case styled PENIEL NELSON, individually and on behalf of all
others similarly situated v. UNITED COLLECTION BUREAU, INC., Case
No. 2021CH2743, was removed from the Circuit Court of Cook County,
Illinois, to the U.S. District Court for the Northern District of
Illinois on July 23, 2021.
The Clerk of Court for the Northern District of Illinois assigned
Case No. 1:21-cv-03921 to the proceeding.
The case arises from the Defendant's alleged violation of the Fair
Debt Collection Practices Act by using a third-party mail vendor to
send a debt collection letter to the Plaintiff without his
consent.
United Collection Bureau, Inc. is a debt collection agency
headquartered in Toledo, Ohio. [BN]
The Defendant is represented by:
Daniel E. Feinberg, Esq.
GORDON REES SCULLY MANSUKHANI, LLP
One North Franklin, Suite 800
Chicago, IL 60606
Telephone: (312) 565-1400
E-mail: dfeinberg@grsm.com
UNITED SERVICES: Class Status Bid Filing Extended to August 7
-------------------------------------------------------------
In the class action lawsuit captioned as McPheeters v. United
Services Automobile Association, Case No. 1:20-cv-00414 (S.D.
Ohio), the Hon. Judge Timothy S. Black entered an order granting an
extension of time to file a motion for class certification.
-- The Plaintiff's deadline to file a motion for class
certification is now August 7, 2021.
-- The Defendant's deadline to respond to the motion for
class certification is now Oct. 12, 2021.
-- The deadline for Plaintiff's reply is now Nov. 9, 2021.
The nature of suit states diversity -- breach of contract.
The United Services Automobile Association is a San Antonio-based
Fortune 500 diversified financial services group of companies
including a Texas Department of Insurance-regulated reciprocal
inter-insurance.[CC]
UNITED STATES: Child Plaintiffs Seek Class Status, Judgment
-----------------------------------------------------------
The child plaintiffs in the class action lawsuit PEDRO REIS, on
behalf of himself and all others similarly situated. And MEDICAID
ORTHODONTISTS OF MASSACHUSETTS ASSOCIATION, v. MARYLOU SUDDERS,
Secretary of the Executive Office of Health and Human Services And
AMANDA CASSEL KRAFT, Acting Assistant Secretary for MassHealth,
Case No. 21-1629A (July 16, 2021) seek class certification and a
declaratory judgment regarding:
(a) whether Dr. Rizkallah satisfied the legal standard for
appearing as an appeal representative; and
(b) whether the BOH abused its discretion in dismissing the
cases. Relief should be granted because: the omnibus motion
was procedurally inappropriate; the dismissals violate the
children's property and due process rights; and the children
are entitled to choose their appeal representative as matter
of law.
The Plaintiff Pedro Reis, and the class he represents, are children
and MassHealth members. They all have handicapping orthodontic
defects and were erroneously denied coverage. The children timely
appealed to the MassHealth Board of Hearings ("BOH"), designating
an orthodontist, Dr. Mouhab z. Rizkallah, as their appeal
representative.
MassHealth filed a so-called "omnibus motion" at the BOH, seeking
dismissal of all BOH appeals in which Dr. Rizkallah represents
MassHealth members; the children opposed it. While the omnibus
motion was still pending, individual hearing officers dismissed
several appeals in which Dr. Rizkallah represented MassHealth
members, using nearly identicallanguage in each dismissal. Kim
Larkin, the Director of the BOH ("Director Larkin"). Then allowed
the omnibus motion and approved the dismissal of the appeals of
hundreds of children.
Defendant Sudders, Secretary of the Executive Office of Health and
Human Services ("EOHHS'"), is responsible for the oversight,
supervision, and control of the health and human services
departments within the executive branch.
Defendant Amanda Cassel Kraft is the acting assistant secretary for
MassHealth and Medicaid Director. She is responsible for the
direction, supervision, and control of the MassHealth agency under
EOHHS.
[BN]
The Plaintiff is represented by:
Joel Rosen, Esq.
Matthew Perry, Esq.
ROSEN & GOYAL. P.C.
204 Andover St., Ste. 402
Andover MA 01810
Telephone: (918) 474 0100
E-mail: jrosen@rosen1goval.com
mperry@rosen1goval.com
UPS SUPPLY: Denial of Bid to Certify Class in Hughes Suit Affirmed
------------------------------------------------------------------
In the case, MARION HUGHES; PHILLIP L. WESTERN; AND TERRI A.
ROGERS, INDIVIDUALLY AND ON BEHALF OF ALL OTHER PERSONS SIMILARLY
SITUATED, Appellants v. UPS SUPPLY CHAIN SOLUTIONS, INC.; UNITED
PARCEL SERVICE, INC.; AND DEFENDANTS JOHN DOE 1-10, Appellees, Case
No. 2020-CA-0643-ME (Ky. App.), the Court of Appeals of Kentucky
affirmed the May 1, 2020 order of the Jefferson Circuit Court
denying Hughes' motion for class certification of Count I of her
Second Amended Complaint.
The matter is an interlocutory appeal taken pursuant to Kentucky
Rules of Civil Procedure ("CR") 23.06 by Marion Hughes, Terri A.
Rogers, and Phillip L. Western, as the Lead Plaintiffs for the
putative class, from the May 1, 2020, order of the Jefferson
Circuit Court denying her motion for class certification of Count I
of her Second Amended Complaint. Hughes sought class certification
for employees of UPS, Inc., and UPS Supply Chain Solutions, Inc.,
who were subjected to the use of two allegedly illegal leave
policies, the 100% Health Leave Policy and the 12 Month Leave
Policy ("Leave Policies Class" or "Disabled Class").
The lawsuit began with the filing of a verified class action
complaint in the Jefferson Circuit Court on Oct. 10, 2007. Marion
E. Hughes, both individually and on behalf of all others similarly
situated, was the sole named Plaintiff, and she named UPS, Inc.,
UPS Supply Chain Solutions, Inc., (collectively, "UPS") and 10 John
Does as defendants. UPS, Inc., is the parent company of UPS Supply
Chain Solutions, Inc., where Hughes was employed. Hughes alleged
two claims: A disability discrimination claim under Kentucky
Revised Statutes ("KRS") Chapter 344 in Count I and a wage and hour
claim under KRS Chapter 337 in Count II. The two claims were later
bifurcated.
For her disability discrimination claim, Hughes defined the class,
which she labeled as the Disabled Class, as follows: All job
applicants, and all current or former employees of UPS employed in
the Commonwealth of Kentucky, with apparent or actual disabilities,
or a history of being disabled, who have been denied the benefits
of engaging in an interactive process for determining a reasonable
accommodation in good faith, and/or who have been denied
accommodations for their known disabilities, and/or refused to be
reinstated by UPS to work duties that they can perform, with or
without accommodation. The Disabled Class excluded UPS officers,
directors, and management, as well as their families.
Hughes alleged that the Disabled Class consisted of several hundred
persons in Kentucky and that it would be impractical to join all of
the members because of its size. She alleged that there was a
well-defined community of interest in the questions of law and fact
involved in this claim that predominated over questions affecting
individual class members, such as whether UPS' policies and
procedures violated Kentucky laws and regulations, including KRS
Chapter 344. She alleged these claims were typical of the Disabled
Class and that she would be able to fairly and adequately represent
the interests of the class.
Under the factual allegations section, Hughes alleged that she had
a qualified disability as defined under KRS 344.030. She alleged
she suffered from chronic fatigue syndrome and fibromyalgia, and
that, as a result, she was placed on short-term disability leave by
UPS in 2003. She returned to work with restrictions in 2004. She
underwent surgery in December 2005 and remained on short-term
disability leave until March 11, 2006, when UPS determined that she
was no longer disabled. Her restrictions remained, but UPS would
not permit her to return to work until she was 100% healthy and
under no work restrictions. She was told by Human Resources
personnel that UPS had adopted a new 100% healthy policy as of Jan.
1, 2006. Because she was unable to return to work without
restrictions, her employment was terminated. As a result of the
alleged unlawful policy and conduct, Hughes alleged that she and
the members of the Disabled Class had suffered damages including
lost wages and benefits, expenses, interest, emotional distress,
and attorney's fees.
In October 2010, Hughes moved the court to file a first amended
complaint to add additional named plaintiffs to the wage and hours
claim in Count II. She stated that the substance of the complaint,
including the claims she asserted, remained unchanged.
In November 2010, UPS moved for a partial summary judgment on
Hughes' class allegations pursuant to CR 12.03 as to her disability
discrimination claim. It later withdrew the motion in light of its
plan to remove the case to federal court. Upon remand, UPS filed
another motion seeking the same relief.
In January 2012, Hughes filed a motion seeking an extension of
response time and indicated that she intended to file a second
amended complaint to clarify her legal theories to avoid confusion
as the claims in both counts moved forward. The court granted the
motion for extension.
Ms. Hughes filed her motion for leave to file a Second Amended
Complaint the following month. As with the filing of the first
amended complaint, Hughes confirmed that her claims were not
changing and that she was continuing to seek relief for her wage
and hour claim and her leave policies claim. After stating that
UPS had mischaracterized her leave policy claim, Hughes stated she
was "further crystalizing" this claim with additional facts and by
narrowing the issue. She also sought to narrow her proposed class
definition. And she specifically identified the two leave policies
she was contesting as the 100% Healthy Leave Policy, and the 12
Month Leave Policy, which had not been previously identified.
UPS objected to the filing of the Second Amended Complaint, noting
that Hughes had consistently referred to Count I as a disability
discrimination class claim based upon the 100% Healthy Leave
Policy. For the first time, she was seeking to add a separate
policy, a 12-month administrative termination policy, for which UPS
raised a statute of limitations issue. The court granted the
motion to file the Second Amended Complaint on March 7, 2012.
In the Second Amended Complaint, Hughes reiterated that this
version did not raise any new claims or add any additional
plaintiffs. It was meant to clarify her claims. She redefined the
"Illegal Disability Leave Policies" class as: "All current and
former employees of UPS who were employed in the Commonwealth of
Kentucky during the applicable limitations period and who were
subject to a UPS leave policy." She alleged that the Leave
Policies Class members were subject to the same two leave policies,
that her claim was typical of the class members' claims, that she
had common interests with the class members in finding that UPS'
leave policies were illegal per se, and that she had demonstrated
her willingness to prosecute the interests of the class members via
her qualified counsel. Hughes alleged that UPS violated Kentucky
laws and regulations by adopting these inflexible leave policies
and sought damages as a result.
Shortly thereafter, UPS moved to dismiss Hughes' individual and
class-wide disability discrimination claims under Count I for
failure to state a claim upon which relief could be granted.
Because the allegation that a plaintiff is a qualified individual
with a disability was a necessary component of a disability
discrimination claim, UPS asserted that Hughes' claim must fail.
On July 27, 2012, the court entered an opinion and order denying
UPS' motion to dismiss. UPS thereafter filed an answer to Hughes'
Second Amended Complaint. It specifically asserted that a class
action was not appropriate on the disability leave class claim.
Several years later, on Dec. 5, 2019, Hughes moved the court to
certify the Leave Policy Class pursuant to CR 23. She stated that
the two policies violated Kentucky law and that class-wide
declaratory and injunctive relief was appropriate and necessary.
The next day, UPS filed a motion to dismiss pursuant to CR 41.02 or
to strike the class action allegations pursuant to CR 23.04,
stating that Hughes had taken no action to advance Count I for
almost six years until filing the motion for class certification.
In addition to procedural deficits, UPS continued to argue that a
disability discrimination claim under KRS Chapter 344 could not be
established as a class based upon the individualized assessment
such claims entail.
Ms. Hughes opposed UPS' motion, arguing that the case had been
stayed for appellate resolution of the wage and hour class claim.
UPS disputed this statement, reminding the court that the two
counts had been bifurcated and were proceeding on different tracks.
The court held a hearing on March 2, 2020, where the parties
presented their respective arguments as to class certification and
whether the claim should be dismissed. The court requested
supplemental briefing, which both parties filed.
The court heard remote arguments from the parties (due to COVID-19
restrictions) on April 2, 2020. By opinion and order entered May
1, 2020, it denied Hughes' motion to certify a "Leave Policies"
Class and granted UPS' motion to dismiss the class allegations
under Count I. The court found that Hughes could not meet three of
the four requirements to certify a class as set forth in CR 23.01
(she only met the numerosity requirement), stating that "it would
not be administratively feasible for this court to determine
whether a particular individual is a member of the proposed
class."
In finding that Hughes failed to satisfy the commonality,
typicality, and adequacy requirements, the court held that "even if
the Leave Policies were deemed per se discriminatory, establishing
the unlawful discrimination alleged by the Plaintiffs would require
determining whether class members are 'qualified' under KRS Section
344, an inquiry too individualized and divergent to warrant
certification under CR 23.01."
The interlocutory and expedited appeal now follows. On appeal,
Hughes contends that the circuit court abused its discretion in
denying class certification because it applied an incorrect legal
standard or factual predicate. On the other hand, UPS argues that
the circuit court properly ruled in this matter and that Hughes has
impermissibly raised an argument for the first time on appeal
related to her allegation of specific statutory violations.
The circuit court concluded that, even if the policies were per se
discriminatory, the assessment would require it to determine
whether every class member was a qualified individual under the
KCRA and thus eligible for its protection. This determination, the
court stated, was too individualized and divergent for class
certification to be appropriate.
The Court of Appeals agrees and finds no abuse of discretion in the
circuit court's decision on commonality. It opines that the need
to analyze each proposed class member to ensure that each person is
a qualified individual with a disability is too burdensome for
class certification. The Court of Appeals also agrees with the
circuit court that the typicality and adequacy elements fail, also
based upon the need that each class member must be a qualified
individual with a disability. Finally, it agrees that the circuit
court did not need to address CR 23.02 as Hughes failed to meet all
four elements in CR 23.01.
Although it is affirming the circuit court's ruling, the Court of
Appeals addresses, in part, Hughes' argument that she was not
raising a discrimination claim under the KCRA. Rather, she argued
that her leave policy claims were based upon UPS' per se violation
of three statutes, KRS 311.560, KRS 336.700, and KRS 344.280.
However, as UPS argued in its brief, Hughes "never articulated a
standalone claim under these three statutes" between October 2007
and December 2019. The Court of Appeals' review of the voluminous
record uncovered very little mention of any of these statutes; it
noted these mentions. These brief mentions were certainly not
enough to permit Hughes to make these alleged statutory violations
the heart of her appellate argument and escape the application of
Hohider.
For the foregoing reasons, Court of Appeals affirmed the opinion
and order of the Jefferson Circuit Court denying Hughes' motion for
class certification of the Leave Policies Class.
A full-text copy of the Court's July 16, 2021 Opinion is available
at https://tinyurl.com/yvbxrnt7 from Leagle.com.
Andrew J. Horne -- ahorne@msapc.net -- Louisville, Kentucky,
Michael D. Grabhorn, Andrew M. Grabhorn, in Louisville, Kentucky,
Briefs for Appellants.
C. Laurence Woods III -- lwoods@fbtlaw.com -- Kyle D. Johnson --
kjohnson@fbtlaw.com -- Louisville, Kentucky, Mark A. Perry,
Washington, D.C., Julian W. Kleinbrodt, San Francisco, California,
Brief for Appellees UPS SUPPLY CHAIN SOLUTIONS, INC., and UNITED
PARCEL SERVICE, INC.
WALMART INC: Merck Must File Class Cert. Bid by February 15, 2022
-----------------------------------------------------------------
In the class action lawsuit captioned as THOMAS MERCK v. WALMART,
INC., Case No. 2:20-cv-02908-SDM-EPD (S.D. Ohio),
the Hon. Magistrate Judge Elizabeth P. Deavers entered an order
granting the joint motion for extension of time and the preliminary
pretrial order is modified as follows:
-- Parties and Pleadings
If this case is a class action, the parties agree that the
motion for class certification shall be filed by February 15,
2022.
-- Expert Testimony
Primary expert reports related to class certification must be
produced by November 15, 2021.
Rebuttal expert reports related to class certification must
be produced by December 16, 2021.
Primary expert reports related to the merits will be produced
by a date to be determined after the Court rules on class
certification. If the expert is specifically retained, the
reports must conform to Fed. R. Civ. P. 26(a)(2)(B), unless
otherwise agreed to by the parties.
If the expert is not specifically retained, the reports must
conform to Fed. R. Civ. P. 26(a)(2)(C), unless otherwise
agreed to by the parties. Pursuant to Fed. R. Civ. P. 26(b)
(4)(A), leave of court is not required to depose a testifying
expert.
-- Settlement
Plaintiff shall make a settlement demand by JANUARY 28, 2022.
Defendants shall respond by MARCH 15, 2022. The parties agree
to make a good faith effort to settle this case. The parties
understand that this case will be referred to an attorney
mediator, or to the Magistrate Judge, for a settlement
conference in April 2022.
In order for the conference to be meaningful, the parties
agree to complete all discovery that may affect their ability
to evaluate this case prior to the settlement conference.
The parties understand that they will be expected to comply
fully with the settlement order which requires inter alia
that settlement demands and offers be exchanged prior to the
conference and that principals of the parties attend the
conference.
A copy of the Court's order dated July 23, 2021 is available from
PacerMonitor.com at https://bit.ly/3ig7s9s at no extra charge.[CC]
WHITEPAGES INC: Court Denies Bids to Dismiss Lukis Class Suit
-------------------------------------------------------------
In the case, STEPHANIE LUKIS, MANTAS NORVAISAS, and SHAWN BROWN,
individually and on behalf of all others similarly situated,
Plaintiffs v. WHITEPAGES INCORPORATED, Defendant, Case No. 19 C
4871 (N.D. Ill.), Judge Gary Feinerman of the U.S. District Court
for the Northern District of Illinois, Eastern Division, issued an
Opinion and Order:
a. granting Whitepages' motion to stay the litigation as to
Plaintiff Lukis but denying as to Norvaisas and Brown,
though discovery will remain limited to arbitrability
issues;
b. denying Whitepages' motions to dismiss based on standing
and personal jurisdiction; and
c. deferring ruling on Whitepages' motion to compel
arbitration of or transfer the claims of Norvaisas and
Brown.
Ms. Lukis brought the putative class action against Whitepages in
the Circuit Court of Cook County, alleging violations of the
Illinois Right of Publicity Act ("IRPA"). Whitepages removed the
suit under the Class Action Fairness Act ("CAFA"), 28 U.S.C.
Section 1332(d). Last year, the court denied Whitepages's motion
to dismiss for failure to state a claim and lack of personal
jurisdiction, and later denied its motions for reconsideration,
leave to appeal, and summary judgment.
Whitepages operates a website that sells background reports on
people. Searching the website for a person's name reveals free
information tied to that name. Whitepages offers more detailed
reports for a fee, which it promotes by inviting users to purchase
them when viewing a free preview. The complaint alleges that
Whitepages violated the IRPA by using the Plaintiffs' identities to
promote the sale of its paid reports.
Earlier this year, the Court denied Whitepages' motion to compel
arbitration of or transfer Lukis' claim and granted her motion to
amend the complaint to add two new plaintiffs, Mantas Norvaisas and
Shawn Brown. Following that ruling, the Plaintiffs filed an
amended complaint joining Norvaisas and Brown, and Whitepages
invoked Section 16(a)(1) of the Federal Arbitration Act ("FAA"), 9
U.S.C. Section 16(a)(1), to appeal the denial of its motion to
arbitrate Lukis' claim.
Several motions are before the Court. First, Whitepages moves to
dismiss all the Plaintiffs' claims under Civil Rule 12(b)(1) for
lack of standing. Second, Whitepages moves to dismiss the claims
of Norvaisas and Brown under Rule 12(b)(2) for lack of personal
jurisdiction. Third, Whitepages moves to dismiss the claims of
Norvaisas and Brown based on an arbitration provision in its Terms
of Use or to transfer those claims to the Western District of
Washington under 28 U.S.C. Section 1404(a) based on a forum
selection clause in the Terms. Finally, Whitepages moves to stay
the litigation entirely pending its appeal or, in the alternative,
to stay the litigation as to Lukis and limit proceedings on the
claims of Norvaisas and Brown to the issue of whether they agreed
to arbitrate their claims. Whitepages moved for a protective order
pending the outcome of those motions, which the Court granted in
part, limiting discovery (other than certain merits discovery
ordered weeks earlier) to arbitrability issues.
Discussion
I. Motion to Stay
Judge Feinerman begins with Whitepages' motion to stay, as that
motion implicates the Court's ability to address the other pending
motions. Whitepages moves to stay the litigation in its entirety
based on its appeal of decision denying arbitration of Lukis'
claim, or, in the alternative, to stay Lukis' claim and limit
proceedings on the claims of Norvaisas and Brown to the question
whether they agreed to arbitrate their claims.
Although Judge Feinerman believes that the Court correctly denied
Whitepages' motion to compel arbitration of Lukis' claim, he
hesitates to say that the result was "obvious" or that Whitepages's
views were "wholly without merit." Specifically, while it was
straightforwardly plain that Whitepages waived its right to
arbitrate Lukis's claim through its lengthy and unjustified delay
in moving to compel arbitration, the threshold question -- whether
the parties may or did delegate to the arbitrator the issue of
waiver through litigation conduct -- was complex, even if the
answer was ultimately clear under the FAA and relevant precedents.
Lukis' claim is therefore stayed pending Whitepages' appeal.
Plaintiffs Norvaisas' and Brown's claims will move forward in the
Court. There is no question that their claims remain properly
within the Court's jurisdiction, as the claims do not fall within
the "aspects of the case involved in Whitepages' appeal." In
seeking a stay of Norvaisas' and Brown's claims, Whitepages argues
that a stay would be more efficient because all three Plaintiffs
ultimately intend to move together for class certification.
Judge Feinerman holds that this argument falters because
arbitrability issues concerning the claims of Norvaisas and Brown
must be addressed through further proceedings. So the quickest
route to "simplify the issues in question and streamline the trial"
is to work toward resolving those arbitrability issues while
Whitepages' appeal pends before the Seventh Circuit.
That said, and by the same token, Judge Feinerman grants
Whitepages' request to limit the proceedings to matters concerning
arbitrability, absent further court order or the parties'
agreement. Indeed, the Court already limited discovery on the
claims of Norvaisas and Brown in that manner. That limit will
remain in place.
II. Standing
Under the analysis articulated in Spokeo, Inc. v. Robins, 136 S.Ct.
1540, 1547 (2016) and recently reiterated in ransUnion LLC v.
Ramirez, 141 S.Ct. 2190, ___ (2021), that an IRPA violation
inflicts a concrete injury-in-fact under Article III. This defeats
Whitepages' facial attack on Norvaisas' and Brown's standing. As
noted, Whitepages removed the suit under CAFA. The amended
complaint invokes CAFA as well, and its class allegations convey an
intent to seek certification of a Rule 23(b)(3) class with
Norvaisas and Brown as lead plaintiffs.
III. Personal Jurisdiction
Whitepages next argues that the Court lacks personal jurisdiction
over Whitepages as to the claims of Norvaisas and Brown. As
Whitepages recognizes, the Court rejected a materially identical
argument as to Lukis' claim, and so Whitepages reasserts the
defense "to preserve the issue for appeal."
As explained in the Court's prior ruling, exercising personal
jurisdiction over Whitepages does not violate due process because
"Whitepages purposefully directed its activities towards Illinois;
Norvaisas' and Brown's alleged injuries arise from its
forum-related activities; and exercising personal jurisdiction over
it would not offend traditional notions of fair play and
substantial justice." Judge Feinerman adheres to that ruling now.
IV. Arbitration Provision and Forum Selection Clause
Whitepages moves to dismiss or transfer the suit based on certain
dispute resolution provisions set forth in the Terms of Use on its
website. Those provisions include an arbitration clause. The
question is whether the facts demonstrate that Norvaisas and Brown
assented to the Terms.
Judge Feinerman defers ruling on Whitepages' arbitrability motion
pending further proceedings on whether Norvaisas and Brown entered
into an agreement to arbitrate. For the same reasons, the Judge
opines that a ruling on Whitepages' alternative request to transfer
the claims of Norvaisas and Brown to the Western District of
Washington pursuant to the forum selection clause would also be
premature. The forum selection clause can bind Norvaisas and Brown
only if they ratified the Terms. Because contract formation
remains unresolved, the question whether the forum selection clause
in fact covers Norvaisas' and Brown's claims is not properly before
the Court.
Granted, in a prior ruling, the Court held that Lukis' IRPA claim
is not a "Dispute" covered by the forum selection clause. Unlike
Norvaisas and Brown, however, Lukis conceded contract formation, so
to resolve whether her suit should be transferred pursuant to the
forum selection clause, the Court had to determine whether her
claim qualified as a "Dispute" within the meaning of the clause.
Judge Feinerman holds that the present motion does not yet present
that question because contract formation remains unresolved.
Before concluding, Judge Feinerman bears mention that today's
result is wholly consistent with the Court's denial of Whitepages'
motion to compel arbitration of Lukis' claim without allowing for
further discovery on contract formation. As just noted, Lukis did
not challenge contract formation; rather, as to arbitration, she
argued only that Whitepages had waived its right to compel
arbitration. There was thus no possible need for further discovery
on the question whether Lukis had assented to the arbitration
provision in the Terms of Use.
Conclusion
Whitepages's motion to stay pending its appeal is granted as to
Lukis' claim and denied as to the claims of Norvaisas and Brown,
though litigation on those claims will be limited for the time
being to arbitrability issues. Whitepages' motions to dismiss the
claims of Norvaisas and Brown based on standing and personal
jurisdiction are denied. Judge Feinerman defers ruling on
Whitepages' motions based on the arbitration provision and forum
selection clause, pending further proceedings on the issue of
contract formation between Whitepages, on the one hand, and
Norvaisas and Brown, on the other.
A full-text copy of the Court's July 16, 2021 Memorandum Opinion &
Order is available at https://tinyurl.com/46thpnnb from
Leagle.com.
WOOD GROUP: Ruizes Sue Over Failure to Pay Overtime Wages
---------------------------------------------------------
HERON RUIZ and ROZALDA RUIZ, On Behalf of Themselves and All Others
Similarly Situated v. WOOD GROUP USA, INC., Case No. 1:21-cv-01977
(D. Colo., July 21, 2021) arises from the Defendant's violations of
the Fair Labor Standards Act (FLSA).
The complaint alleges that Defendant required Plaintiffs Heron Ruiz
and Rozalda Ruiz to work more than 40 hours in a workweek as
welders but failed to pay them overtime wages at the rate of time
and one half their regular rates of pay for all hours worked over
40 in a week or more than 12 hours in a day, as required under the
FLSA.
Defendant Wood Group USA is an engineering company that provides
services to other companies in the oil and gas industry. [BN]
The Plaintiffs are represented by:
Don J. Foty, Esq.
HODGES & FOTY, L.L.P.
4409 Montrose Blvd., Suite 200
Houston, TX 77006
Telephone: (713) 523-0001
Facsimile: (713) 523-1116
E-mail: dfoty@hftrialfirm.com
*********
S U B S C R I P T I O N I N F O R M A T I O N
Class Action Reporter is a daily newsletter, co-published by
Bankruptcy Creditors' Service, Inc., Fairless Hills, Pennsylvania,
USA, and Beard Group, Inc., Washington, D.C., USA. Rousel Elaine T.
Fernandez, Joy A. Agravante, Psyche A. Castillon, Julie Anne L.
Toledo, Christopher G. Patalinghug, and Peter A. Chapman, Editors.
Copyright 2021. All rights reserved. ISSN 1525-2272.
This material is copyrighted and any commercial use, resale or
publication in any form (including e-mail forwarding, electronic
re-mailing and photocopying) is strictly prohibited without prior
written permission of the publishers.
Information contained herein is obtained from sources believed to
be reliable, but is not guaranteed.
The CAR subscription rate is $775 for six months delivered via
e-mail. Additional e-mail subscriptions for members of the same
firm for the term of the initial subscription or balance thereof
are $25 each. For subscription information, contact
Peter A. Chapman at 215-945-7000.
*** End of Transmission ***